TheAansas City School District has had nineteen levy elections siaea1956. Of the nineteen propositions voted on eight resulted' intpproVal'and eleven resulted in failures for the proposition submitted ,;; Only one election (1956) received over a two-thirds majptity'vnte. In an election on June 11, 1974 both a Library levy andA1/ Schnp District levy were submitted. The Library levy was "approved,. and the School District levy failed of passage. TableX-showatheAates, the levy proposal and the vote for all levy ielettinnkoleihe Kansas City School District since 1956.

TABLE X

Xat,tsaebity School District ' School Election Results
1956-1974

School Operaeins Levy Elections

Date

Election

Total
Let),

Total Vote

7. For

11-6-56

General

1./6

94,101

76.4

11-4-58

General

2.12

80,674

56.0

11-8-60

General

#2.47,,

112.441

55.3

11-6-62

General

2.69

55,652

48.4

1-22-63

Special

2.69*

43,540

60.4

11-3-64

General

17,199

55.8

11-8-66

General

44,562

45.8

1-24-67

Special

4-1-69

Special

5-20-69 /Special

4.70' 4.30

38,674 39,76 53,281

60.4
456
53.3

7-1-69

Special

3.75**

44, 933

6-23-70

Special

4.71

24523

5-18-71

Special

4.65

34,327/

53.8

8-10-71

Special

4.40

33,708

52.0?

12-7-71

Special

4.29

38,249

46'5

8-8-72

Special (Library)

.25*** 36,866

47.5 ,1

Result Passed Passed Passed Failed Passed Passed Failed Passed Failed Failed Passed Failed
Failed Failed Failed

-19-

NC,
0,4

School Operating Levy Elections continued

04'.- •
04 Date

Election

Total Levy

Total Vote

7. For

Result

-1 11-7-72

General ,(Library)

.25***

6L. 1110 7 44-

Special (Library)*

.25***

6-11-74

Special

5.00

4,0 (School Dist.) ,e

*Reduced to 65 for 196taxes

7,553 53,030 54,075

44.6 53.8 54.3

Failed Passed Failed

**Law changed to allow previously approved levy to continue at the same level without voter approval.

***Vote was to increase levy for library by 15c to a total of 25c.

.„," '
\A'

=
401

, I

SCHOOL DISTRICT BONDS

.,„ The School District has the powee*to borrow money and issue bonds
for the payment thereof for the following purposes:

1. Purchasing sites for schoolhouses, public library

buildings, repair buildings,and m'supply houses used

in the operation and maintenance ot'echools and

other land'for,tchool purposess.

1.

Kz

0 '

2. Erecting schoolhouse, public library.buildinis, supply houses and other buildings used in the operation and maintenance of schools.

N
3. Building additions to remodeling and reconstructing buildings existing itatthe time of making the loan.

A

..,,,"

,AL

4. Furnishing any building erected or reconstruttedI,

%or

/"

ef''''''

5. Purchasing school buses and other transportation

equipment.

qs'

The proposition must be submitted tooli dVoteof4tWpeople at a regular election or at a special election called for that purpose.

A two-thirds favorable vote is necessary foriapproval.

0,0°

/

40r•

The terms of the bonds are not to be longer than twenty'Years1hd

the amount total bonded debt cannot exceed On percent ofthe

latest assessed valuation of the school dia*rict. The Oard of

Directors has the power to levy a tax sufficient toliaaOhe in-

terest and principal of the bonds as they fall due., It is common

practice to issue serial bonds with a certain part of each issue

falling due over the twenty year period. Table Xlshows the bonds

and interest that were due in 1973-74.

-20-

TABLE XI THE SCHOOL DISTRICT OF KANSAS CITY. MISSOURI
INTEREST AND 801IDS DUE 1974-75

Series 1956 1957 1958 1959 1961
1962 1963 1966 1967

(Oct.) (Oct.) (Sept.) (Dec.) (Sept.)
(Sept.) (Sept.) (Sept.) (Sept.)

Pitcher-Fairview Reorg. 03 1956(Sept.)

$ 5,500.00 7,875.00 19,250.00
42,575.00 28,437.50 9,600.00 19,575.00 74,718.75 117,500.00
750.00
$ 325,781.25

(Apr.) (Apr.) (March) (lune) (March) (March) (MarchY (March) (March)4
(March)

$ 5,500.00 7,875.00 19,250.00
42,575.00 28,437.50 9,600.00 19,575.00 74,718.75 '117,500.00
750.00
325,7E1.25

(Apr.) (Apr.) (March) (June) (March) (March) (March) (March) (March)
(March)

5 200,000.00 ,,1,75,000.00
350,000.00 475,000.00 250,000.00
80m10.00 145,000.00 375,000.00 500,000.00

S 211.000.00\ 190,750.00 t 388,500.00 560,150.00 306,875.00 '19,200.00
184.150.00 524,437.50 735,090.00

25.000.00, 26,500.00 2,575,000.00 $ 3,226,562.50

FirstNatjons1 M:orpon

FirstOtatiJnal !Won

Fkrat'Ustlanal *r..sn First NatIwal ' -iron

First ::atI.mal

C,1:t-his -n1in ti " •ran

CJIn• .S1a -niii *r. 11

C.Iumhla "niJn iron

C../Iumhla

I. M.Irean

Commvrce Bank

Total Interest: Total Bonds
Grand Total

651,562.50 2,575,000.00
$3,226,562.50

1
4

•••••••-

The last of the bonds issued by thej(ankat—€ ,1ty School IStstritt__

will become due in 1986-87 at which time the District will be en-

tirely ffee\of debt if no new bonds arc approved. Table XII gives

the amount of bonds to be redeemed and the interest due each year

from'1974'to:$1987.

TABLE XII

AtfL

THE

DISTRICT OF KANSAS CITY, MISSOURI

MATURITIES OrOUTSTANDING BONDS AND INTEREST COUPONS

.400#

June 30, 1974

Fiscal Year

Prior to-6-30-74 $ N446,000.00

197445 e," 1976-77".
1977 048

2,575;000.00
2s 375,000.00 2,200,000.00

1978-79

1,850,000.00

1979-08 "1 30 50,0, 00.00

1980-81

1,350,000.00

1981-82

1,100,000.00

1982-83

1,020,000.00

1983-84

''4 875,000.00

1984-85

875,000.00

1985-86

875,000.00

1986-87

500,000.00

$. 7,568.36 651,562.50 487,197.50 410,760.00 339,072.50 277,010.00 231,760.00 186,430.00: 148,350.00 112:750.00 81,500.00
r" 504250.00 ,18,750.00

$19,585,000:00,$3,572,165:'86,„
3,572,765.86 $23,157,76 5. 86

$ 47,568.36 3,226,562.50 2,862,197.50 2,610,760.00 2,189,072.50 1,627,010.00 1,581,760.00 1,286,430.00 1,168,350.00 987,750.00 956,500.00 925,250.00 518,750.00
$23,157,765,86

SCHOOL BONG ELECTIONS

0 No bond elections have been called by the Board of Directors since

July 1, 1969. During 1969 therezere threeseparate attempts

pass

a

bond/ issue

but

all

failed

to

gain

the

•

4

required two-thirds,

approval needed for passage.

Table XIII shows the results of all bond elections` held in the Sc/ra...„

f

I

District since 1896.

-22-

TABLE XIII

KANSAS CITY SCHOOL DISTRICT Bond Elections 1896-1974

Year

0,00',F

44

1896

Amount,
0;250,000

Total Vote ,
19406

7. For 93

Result Passed

1899

400,000 •004.

3277

85

Passed

1902

500:009

3288

87

Passed

1905

"4,000.00

2884

79

Passed

1907 .

600,000

2163

84

Passed

1910 1912 1913

759,000 oe'. ,000,0000'
1050,000 (S.D.) 250,000 (Lib.)

' 3094,,
j st 3894
;
6129 ''' –',1

91

Passed

83

Passed

80P–assed

1917

2,000,000

4 751

83

Passed

1921 1922
1925
1928

5,000,000
5,000,0000,
4,
5,000,000V,
5,000,000

19.615
''14448 I
103'92" ,
17289

....93
8? 82 64

Passed Passed Passed Failed

1929

5,000,000

47920

89

Passed

1939
1951
/
1956

500,000

49

18,000,000 45312 vdB7
,

27,000,000

24428

80

,/PPaasssse\edd
„ee ..,C Passed

1964

17,500,000

31153

Failed

1964

17,500,000

76887

Failed

1965

17,500,000

43490

Passed

1969

12,000,000

38767

Lied

1969

12,000,000

52323

50

Failed

1969

12,000,000

44719

57

tailed

-23-

 
 Date 11 -3-64 1-8-66 1-2467 4-1-69 5-20-69 7-1-69 6-23-70 5-18-71 8-10-71 12-7-71 6-11-74 2-8-83 2-4-86 8-5-86 11-4-86 3-31-87

7A-
EXHIBIT A

SUMMARY - SCHOOL LEVY ELECTION From 11/3/64 to 3/31/87

Vote For 42077

Against 34123

% For 56

Required % 50

20392

24160

46

50

23364

15310

60

50

17582 29371 28359 12965 18467 17611 17774

21619

45

25664

53

16608

63

11628 '

53

15863

54

16161

52

20475

46

66 2/3 66 2/3 50 66 2/3 66 2/3 66 2/3 66 2/3

29342

24733

54

66 2/3

8078

23073

26.

11425

22637

34

A-17731

21278

45

8-18317

20723

47

A-25456

30559

45

8-23224

30910

43

A-21589

27262

44

8-1966I

28038

41

C-23356

23686

50

66 2/3
50
50 50 50 50 50 50 66-2/3

Result Passed
Failed
Passed
Failed
Failed
Passed
Failed
Failed
Failed
Failed
Failed
Failed
Failed Failed Failed Failed Failed Failed Failed Failed

EXHIBIT

ELECTION AND DATE: General Election - 11/3/64

?MOSE: Increase School Levy

AMOUNT: $1.77 Above Constitutio nal 51.00 - Total 52.77 1/

LEQUILED FOR APPROVAL: 50%

RESULTS: 56% - Passed —

WARD 1 2 3 4 5 6 7 8 9
JO 11 12 13 14 15 16 17 18 19 :0 .23 3 r..:..7E 114NP. 70TAL PERCENTAGE

FOR 906 1458 1302 1770 1772 2597 2429 3927 3073 1394 1034 1728 1260 1531 1594 1476 2024 1902 2162 1784 884 4068 42077 55

AGAINST

785

252

773

1489

1741

1382

1659

2008

2006

1059 l'3J7

2134

1853

517

1943

1143

1189

1905

1965

1700

749

4534 34123
45

1/ All cax races shown are for
dollars per S100 of assessed
value.

ELECTION AND DAT!: General Election

• 11/8/66

PURPOSE: Increase School Levy

AMOUNT: $2.07 Above Constituti onal 51.25 - Total S3.32

50% MUM= POIL APPROVAL:

RESULT: 46% - Failed

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20
3L:E 727AL PERCENTAGE

FOR 331 319 432 751 856 1331 1413 2281 1672 674 386 775 520 469 582 638 701 879 962 825 377 3218 20392 46

AGAINST 491 151 43 3 846
1124 1074 1286 1589 1606
851 930 1446 1147 347
1312 1185
484 4111
24160 54

ELECTION AND DATE: Special School Election - 1/24/67

PURPOSE: Increase School Levy

AMOUNT: $2.07 Above Constitu tional 81.25 - Tots' $3.22

MUM FOR APPROVAL: 50%

RESULT: 602 - Passed

WARD

FOR

1

349

2

394

3

452

4

769

5

823

6

. 395

7 '1492

8

2527

9

1988

10

873

11

530

12

1046

13

r

701

14

756

15

853

16

755

17

99

18

1101

19

1190

20

975

23

460

7414P.

2945

=CAL

23364

?ERCENTACE

60

AGAINST 253 95 229 536 793 593 832 852 997
614
44,
486
1187 980 210 977 "398
e
43 4 861
963'
84A
344 1635 15310
40

ELECTION AND DATE: Specisl Election . 4/1/69

PURPOSE: Increase School Levy

AMOUNT: $3.15 Above Constituti onal $1.25 - Total $4.40

=MUD P01 APPROVAL: 66 2/32

RESULT: 45Z - Failed

2

WARD 1

5 6 7 8 9 10 1 12 13 14 15 16 17 18 19 :0 -1
707AL PERCOTACE

FOR 236 315 316 526 605 1113 1184 2178
1509 561 401 791 541
559 621
495
814 755 850 701 391 :370 17582 45

AGAINST 375 104 290 743 959 816
1148 1320
1547
924 ., 011 1742 1390
280 1520
479
556 .444' 1011 1167
;14 490 2271 21619
55

--T.'''. ;7

!LIMON AND DATE: Special School Election - 5/20/69

PURPOSE: Increase School Levy

MOT: $3.05 Above Constituti onal $1.25 - Total $4.30

LEQUfl TOR AFFIDVAL: 66 2/3%

RESULT: 53% - Failed

WARD 1 2 3
5
7
8
9
10
11
12 13 14 15 16 17 18 19 :0 :3 3L1:E '..'NP. 727AL PERCENTAGE

FOR 522 695 676 939 1040 1836 1816 3106 2348 1033 595
1175 785 1130 1044 974 1560 1137 1381 1031 618 3480 29371 53

AGAINST
499
182 418 960 1173
100/
1318 1382 1264 963
't91 2157 1704
438 1683 ,4P'
598 728 1222 1279 1225 640 2999 25664 47

ELECTION AANNDD DATE: Special School Election - 7/1/69

IMPOSI: Increase in School Levy

AMOUNT: $2.50 Above Constitutional S1.25 - Total S3.75

RFAIT11119 ?OR APP1OVAL: 50%

RESULT: 63% - passed

FOR

1

507

615

3

501

937

t

5

1110

6

1889

1887

8

3316

9

2513

10

1091

11

564

12

1297

13

827

14

920

1S

1022

16

814

17

1146

18

1073

19

1355

20

1076

:3

619

TuNP. 70TAL

3280 28359

PERCLNTAGE

63

AGAINST 384 138 290 684 781 667 805 762
1021 622, t63 1334 1174 N 342 1126 ,-.395
816 831 823
337
1907 16608
37

ELECTION AND DATE: Special Election - 6/23/70

PURPOSE: Increase School Levy

AMOUNT: $3.46 Above Constitut ional $1.25 - Total $4.71

MOIR= FOR APPROVAL: 66 2/3Z

RESULT: 53Z - Failed

wARD 1 2 3 4

5

6

7

8

9

10

X

11

12

13

14

15 16

17 18

19

20

31.::E TUN?. 7,27AL FERCLITAGE

FOR 251 328 191 386 488 926 964 1070 1338. 635 220 480 281 350 419 521
444 475 562 282 173 1581
12965 53

AGAINST

240

75

123

459

331

308

721

700

889

.,„ 670 410

879

702

131

760

,320

218 547

601

379

6f •

213

1526

11628

47

ELECTION AND DATE: Special Election - 5/18/71

PUIPOSE: Increase School Levy AMOUNT: 83.40 Above Constitutio nal $1.25 - Total S4.65

ligaRED FOR APPROVAL: 66 2/3Z

RESULT: 54% - Failed

WARD
44°
1 2
3
5 6
7
8 9 10
11
12 13 14 15 16
17 18 19 20 23
7WNP. 70TAL
PERCMITAGE

FOR 444
420
474 524 604 1073 1185 2036 1657 843 426 893 548 692 756 858
878 674 757 392 277 2056 18467
54

AGAINST 340 134 259 543 704 668 893 905
1123 860
578
1302 1067 272 1228 398 3 79 644 707
472 215 2072
15863 46

•

ELECTION AND DAT!: Special Election - 8/10/71

FUIP081: Increase School Levy

AMOUNT: 33.13 Above Constituti onal $1.23 - $4.40

lIQUIllp TOR AFE1DVAL: 66 2/3%

RESULT: 522 - Failed

WARD
1

FOR

AMOUNT

375

361

2

361

121

3

404

223

4

459

575

5

564

726

6

1134

723

7

'''''1161

897

8

1995

917

9

1763

1206

10

878

899

11

' 340

686

12

If 827

1265

13

483

1129

14

t, 646

A264

15

615

1223

1'

16

17

18

708

421

818 578

i 363

..,

669

19

726

743

:0

371

479

231

231

3L:.:7. TIN?.

2154

2040

70TAL

17611

16161

PERCENTAGE

52

48

ELECTION AND DATE: Special School Election - 12/7/71

PURPOSE: Increase School Levy

Ai l?: . ; $0.54 Above Constitutional $3.75 - Total 54.29

RiqUille TOR APPROVAL: 66 2/31

RESULT: 461 - Failed

WARD 1 2
3
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 :3 3L::E 17,44P. 7CTAL ?ERCEITAGE

FOR 365 395 420 441 588 1045 1184 2092 1681 852 323 815 486 432 664 747 924 593 672 371 242 2242 17774 46

AGAINST 455 132 235 680 939 839
1078 1133 1448 1155
840 1671 1502 \ 349 1543 497 S34
745 803 587
314 2956 20475
54

ELECTION AND DAT!: Special Election - 6/11/74

PU110511: Increase School Levy

LEW= MOM: $1.25 Above Constitutional 53.75 - Total $5.00

APPROVAL: 66 2/32

RESULT: 54% - Failed

FOR

827

2

1068

1368

4

1207

5

1088

6

1800

7

2539

8

4.4107

9

2581

10

1025

11

731

105 12 0

13

826

14

1347

15

738

16

1639

17

1625

18

1450

19

571

23

77

31: : TUNP.

2678

TOTAL

29342

PERCENTAGE

54

AGAINST 821 623 699 844
1218 1065
1386 1092 1768 1126
1848 1978
722 1349 861 1025 1070 ,,,503,
98 3226 24733
46

ELECTION AND DAT!: Spacial Election - 2/8/83

PU1POSZ: Increase School Levy

MOUNT: $2.2.1 Above Constitutional $3.75 • Total $6.00

REM= FOR APPROVAL: 6 6 2/31

RESULT: 26Z - Failed

WARD

FOR

ACArNST

178

495

313

248

322

329

203

552

330

756

6

•

448

#

819

7

799 : , "1

1316

8 te

997

1702

9

669

2003

10

132

962

40

11

105

1046

12

159

'11702

13

125

1357

14

377

653

15

112 ‘ '',- 1413

1.6

234

364

17

372

512

18

234 S. ,

286

,„oo, •

23

53

40.!

Oe

27

405

t. 417

23

332

326

29

365

402

30

250

593

3LL:E TUNP.

544

4352

7CTAL

8078

23073

•

ELECTION AND DATE: Special Election - 2/4/86

11312081: Increase School Levy

Al IT: Pros $2.238 to $3.75 less a Proposition C Roll Back to S3.38

11EQUIIID rot APPROVAL: 50Z

RESULT: 37Z Failed

FOR

AGAINST

303

511

421

283

455

377

293

578

580

726

603

896

7

1060:

1224

S

1519

1532

9

1065

1882

240

921

176

:197

12

202

1800

13

162

1351

14

578

613

15

198

1441

16

335

311

17

560

451

18

285

239

23

53

1•

435

343

401

309

29

520

315

30

437

493

3LUE TWNP.

544

4352

TOTAL

11425

22637

•

ELECTION AND DATE: Special Election (effective 1986 taxes) - 8/5/86
PURPOSE: Increase School Operating Levy AMOUNT: From $2.378 to $3.081, less an estimated S.39 Proposition C
Roll Back to $2.691. Net increase over 1985 levy of 5.313. REQUIRED FOR APPROVAL: 50% Result: A, +45% - B, +47% - Failed

WARD 1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18
23 27 28 29 30 K.C. 1/

A FOR' 525 660 719 543 1024 • 1008 • 1600 2183 1442 414 286 333 23k 819 257 566 898 490
89 641 635 816 699 16881

AGAINST 519 291 356 568 841 953
1279' 1601 1768
763 1202 1641 1263
:558 ii249
347 485 239 404 352 330 355 461 17835

B

FOR

AGAINST

530

513

670

284

719

360

547

559

1043

821

1059

891

1676

1222

2252

1536

1510

1707

455

728

278

1197

374

1595

250

1248

834

565

273

1237

562

351

909

487

492

243

97

395

668

335

623

339

819

360

717

439

17357

17412

K.C. 2/ B.T. TOTAL.– PerCent

16805 926
17731 45

17800 3478
21278 55

12266-7 1051 «
18317 47

1/ Kansas City Ward Totals are unofficial 2/ Totals are official

17377 3346
20723 53

ELECTION AND DATE: Special Election, (effective 1987 taxes) - 11/4/86
PURPOSE: Increase School Operating Levy AMOUNT: From $2, .44 to $3.188, less an estimated $.39 Proposition C Roll
Back to $2.798. Net increase over 1986 is S.358 REQUIRED FOR APPROVAL: 50% Result: A, + 45% - B, + 40% - Failed

WARD 1 2 3 4 5 6 7 8 9
10 11 12 13 14 15 16 17 18 23 27 28 29 30 KC 1/

FOR 692 815 989 748 1436 1479 2094 2908 2123 605 511 622 431 973 520 808 1074 653 216 887 976 1169 1000 23734

A AGAINST 6822 447 663 779 1151 1235
' 1610 2151 2434 1038 1354 2005 1533 805 1528 569 815 494 588 662 604 690
'', 780 24617

B— FOR 609 731 867 727 1348 1380 1921 2703 1926 529 468 552 388 885 455%
762''' 956 626 183 833 914 1093 882 21738

AGAINST 671 448 657 768
1170 1275 1665 2260 2518 1605 1324 1989 1519
774 /518
562 811 484 611 637 607 689 782 24804

KC 2/ B.T. 2/ TOTALPerCent

23735 1721
25456 45

24617 5942
30559 55

2/738 1486
23224 43

1/ Kansas City Ward Totals are unofficial. 2/ Totals are official

. 24804 6106
30910 57

ELECTION AND DATE: Special School Election - 3/31/87

PURPOSE: Increase School Operating Levy

Approve Sale of Building Bonds AMOUNT: Proposition A: Salary Increase

37.2c

Proposition B: Desegregation Expenses 71.8c

Proposition C: Bond Retirement 29.5C

REQUIRED FOR APPROVAL: A and B, Simple Majority. For C, 66-2/3% RESULT: All Failed

A

B

C

ARD

FOR

'AGAINST

FOR

AGAINST

FOR

AGAINST

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 23 27 28 29 30 KC 1/
2/ BLUE TOTAL

716 899 1089 549 1139 1074 1810 2513 1746 472 342 442 328 1126 354 821 1210 660 115 875 856 1141 775 21052
537 21589

823 450 719 841 1065 1102 1409 1915 2094 997 1655 2265 1693 790 1491
554 794 378 495 591 506 586 687 23900
3362 27262

651 864 1060 512
1031 968
1569 2221 1481
398 306 357 283 1065 310 805 1155 653
87 852 840 1098 734 19300
361 19661

838 431 663 842 1132 1167 1589 2136 2269 1029 1640 2295 1715 748 1488 545 771 354 519 582 486 579 679 24497
3541 28038

778 947 1134 626 1209 1146 1881 2684 1929 574 426 585 414 1125 443
875 1211
657 167 940 898 1219 848 22716
640 23356

691 317 538 716 940 981 1244 1662 1810 842 1477 2046 1553 624 1331 425 632 314 424 477 395 446 550 20435
3251 23686

Percent

44

56

41

59

50

50

1/ All totals are official.

2/ Blue Township: Area in the School District of Kansas City, Missouri, but '%

located outside municipal Kansas City, Missouri.

Y

Percentage Results K.C. 46.83 B.T. 13.77 Total 44.19

53.17 86.23 55.81

44.07 9.25
41.2

55.93 90.75 58.8

52.64 16.45 49.65

47.36 83.55 50.35

;, -• 7,7 '

WARD if

Wards Having Highest Percentage of Black Registrants

Percentage of Favorable Votes — Last Three School District Lev y Elections

% Black 2/

Percent For 2/14/86

8/5/86 3/ AB

11/4/86 3/

A

B

3/31/87 4/ ABC

2

92

60

3

98

55

14

85

49

16:

52

52

17

96

55

18

59

54

27

69

56

28

79

56

29

86

62

30

59

47

69 70 66 66 59 59 61 61 64 65 69 66 64 66 65 64 69 69 60 62

64 62 59 56 54 53 58 57 56 54 56 56 57 56 61 60 62 61 56 53

67 67 60 62 58 59 60 60 t 60 60 64 65 61 59 f63 63 66 66 7 53 52 6

1/ Ten (of twenty—four) Wards with highest percent of Black Registrants. 2/ Percentage of registrants who were Black using 1980 Census data supplied by Municipal
Kansas City Department of Community Development.
3/ The proposition was submitted in two separate items, A and B. 4/ The proposition was submitted in three separate items, , B, and C.

Note: American Indian and other Minorities are not included in the calculations.

EXHIBIT C

Wards Having Highest PerecentaRe of White Registrants Percentage of Favorable Votes - Last Three School District Levy Elections

WARD 1/

% White 2/

Percent For 2/14/86

8/5/86 3/ AB

11/4/86 3/ AB

3/31/87 4/ AB C

5

91

44

6

91

40

7

98

46

8•

99

50

9

96

36

10

97

21

12

99.9

10

13

96

11

23

92

10

Blue Twnship 98 5/

11

54 55 51 54 55 57 57 59 44 46 33 3816 18 15 16 18 19 21 23

55 53 54 51 56 53 57 54 46 43 36 33 23 21 21 20 26 23 22 19

52 48 56 49 55 54 56 50 60 57 51 52 46 40 51 32 39 41 18 16 23 16 13 22 19 14 21 49 9 28

1/ Ten (of twenty-four) Wards with highest percent of White Registrants. 2/ Percentage of registrants who were White using 1980Census data supplied by Municipal
Kansas City Department of Community Development. 3/ The proposition was submitted in two separate items, A and B. 4/ The proposition was submitted in three separate items, A, B, and C. 5/' Estimate - not available from source of other data on registered voters.

 
 STATEMENT OF EDUCATIONAL DIRECTIVES
The Board of Directors
of the
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI
December 6, 1995
Introduction
The School Board, elected to provide educational leadership and establish educational policies for the School District of Kansas City, and mindful of the planning tasks it faces, adopts the following educational principles to guide the Administration of the School District. We believe that every child enters school with a thirst for learning and an initial love of school and respect for teachers and principals. It is our task to capitalize on that energy and enthusiasm, to nourish it over the years, and help it grow. Our students must graduate from high school, prepared for all challenges, capable of meeting the demands of higher education, skilled to contribute economically to the community that educated them, and ready to participate as informed citizens in public life. To achieve these vital goals, we must have an effective school system. These principles are adopted for that purpose.
The School Board believes that all children are capable of meeting challenging standards and that schools must be flexible and capable of varying the opportunities for learning in terms of varied strategies to allow children to learn at their best. The School Board recognizes that the following reform principles must flow from a common vision and belief about children learning. That belief is that all children are capable of performing at high standards, and of developing deep understanding of complex concepts. Students will respond to learning opportunities if educators truly believe in their capabilities. This School Board also believes that the reforms needed to make this District successful cannot be pursued successfully in isolation from each other. Reform cannot come sequentially because a good curriculum without good instruction will not work any better than a poor curriculum.

Curriculum

The Kansas City, Missouri School District will adopt and implement a core curriculum for

the 1996-1997 school year. This core curriculum will identify the essential knowledge,

processes and skills in all content areas. It will contain a statement of aims and specific

objectives, indicate the selection and organization of content, suggest certain governing

principles about learning and teaching, and describe a method of assessment. The District

curriculum will:

•

identify content objectives in language arts, mathematics, social studies, science,

art and music and provide a basic guide for learning at all grades.

•

emphasize essential ideas and processes rather than discrete factual information,

•

incorporate national and State standards for performance.

•

be developmentally appropriate recognizing that not all students develop at the same

rates just as all second graders do not reach 44" tall at the same time.

•

promote progressively deeper understanding without saving challenging content for

upper grades. (i.e., Geometry and algebra should be reflected in the K - 3

curriculum and not saved for introduction.)

•

address critical thinking and problem solving abilities.

•

reflect District Equity Policy.

•

provide a foundation for interdisciplinary study and exploration of magnet themes.

•

identify outcomes in grade ranges.

•

be adaptable to the specific needs of individual schools,

••

not be driven by standardized tests or textbooks.

The curriculum will be developed according to the. following timeline:

by June 1996:

1) a statement of District philosophy, scope and sequence charts,

and performance objectives in grade ranges for language arts, math,

science, social studies, music and art; 2) develop District assessment

policy.

by June 1997:

1) assessments for targeted performance objectives; 2) completion of

of technology, foreign language and physical education

curriculum; 3) recommended activities & resources for language

arts, mathematics, science, social studies, music and art.

Instruction

The Kansas City, Missouri School District shall adopt and implement instructional practices

that complement the new curriculum. In designing an effective instructional program, we

need to change how teachers interact with students in the classrooms. These changes must

be grounded in an understanding of how children learn. If we want to do things better, not

just differently, we need to make changes based on educational research in cognitive

studies. In accordance with current research, the instructional program will emphasize the

following:

•

attainment of expert performance by all students in all contents,

selection of content and instructional strategies grounded in an understanding of

how children learn, remember and use skills.

•

activities that encourage student involvement such as hands-on experiments,

projects, and collaborative learning.

•

high-order reasoning and learning skills.

•

ideas, processes and strategies that are unique to different content areas.

•

application and transfer of this knowledge to real-world problems.

•

student reflection, awareness and monitoring of their own learning.

•

relationship between prior knowledge and new information to support assimilation

and integration.

•

presentation of new information through different modalities, intelligences and

approaches.

•

didactic methods when introducing new information, coaching when

practicing performances, and dialogue when exploring ideas.

•

social development as well as intellectual.

Professional Development

Teachers, administrators and other instructional staff need training to successfully

implement the new curriculum and instructional practices. The purpose of staff

development is to equip teachers with the knowledge and skills that will result in improved

opportunities for student teaming. The KCMSD must immediately develop a

comprehensive plan, including professional standards for staff development. All

subsequent training and development will be measured and evaluated against those

standards, The training model should be designed based on current research on effective

practices and adult learning theory. It should incorporate the following components:

an understanding of child development and general learning theory that will serve as

a foundation for decisions about both curriculum development and instruction.

a deeper understanding of 1) student population we serve; 2) classroom

management strategies; 3) knowledge, processes, and skills unique to each content;

4) effective instructional strategies, and; 5) ways to connect content across

disciplines and to the real world; and 6) methods for effective student assessment.

•

opportunities for 1) guided practice of new knowledge in the classroom; 2) for

exploring best practice beyond the school such as partnerships and networks; 2)

choice of training programs based on individual needs; and 3) different approaches

to teacher growth and development (i.e. mentorships, study groups, peer

coaching).

•

encouragement of continuous teacher reflection on best practice and collaboration

within the school community.

•

training that engages teachers through interaction and active participation

All professional development resources not specifically dedicated to other mandated

purposes, must be used next year, and in succeeding years as necessary, to facilitate.

implementation of these educational policies and directives.

Assessment
Assessment is the gathering of information about students' knowledge, their ability to use that knowledge, and their disposition toward such knowledge for the purpose of drawing inferences or making decisions about learning in our schools. Assessment must be closely linked to curriculum and instruction but it must be linked in a manner that assists in learning. It must avoid becoming an end to itself by shaping curriculum or instructional practices for the convenience of adults. It is thus critical that the KCMSD plan and develop for implementation by September 1996 an assessment model that will permit informed assessment of the learning of our students.
Personal Evaluations
To achieve the goal of providing excellent educational opportunities for all students, the KCMSD
must be staffed by educators who are all knowledgeable, understand the new curriculum, use
good instructional practices, have a proper disposition toward students and colleagues, and are willing to devote their professional energy to assist all children in learning. To that end, all future personnel evaluations must be tightly focused on assuring that our principals, teachers, and other teaching staff are evaluated on their performance using these measures. And, importantly, District personnel decisions must be grounded in the principle that the KCMSD will act on the basis of thorough and fair performance evaluations. All instructional personnel should know that having been given adequate opportunities to learn the District curriculum and instructional practices, and having been coached and guided in their implementation, they will be held accountable. The KCMSD will make personnel decisions in a manner that ensures that within a short but reasonable period of time all instructional staff will meet the District's high standards.
Conclusion
The KCMSD has fallen short of meeting all the educational needs of our children. The curriculum, instructional, professional development, assessment, and personnel principles adopted here are intended to give the Administration policy guidance that will enable it to marshall District resources so that, in short order, the KCMSD will offer learning opportunities that will engage all of our children in a rich and rewarding educational experience and prepare them for a productive and rewarding life.

DISCUSSION POINTS FOR MEETING WITH ATTORNEY GENERAL JAY NIXON ON MAY 9, 1996

1. 2.
3.
4. 5.

KCMSD needs substantial desegregation funding to eliminate the vestiges of illegal segregation and discriminatory conduct relative to the adjudicated victims -- the AfricanAmerican students. The most significant lingering vestige is the gap between the academic achievement levels of African-American students and white students in this district. So long as these glaring disparities persist, the vestiges have not been eliminated to the extent practicable and the KCMSD is not unitary.
Racial Isolation - (On this question/issue, make two points):
a. Racial isolation per se is not unconstitutional. b. Racial isolation is not a barrier to academic achievement.
Future litigation and the State's inability for the inter-generational effects of their discriminatory conduct.
The KCMSD feels confident that it prevail/in court on issues relative to the State's obligation to provide adequate desegregation funding to eliminate the lingering vestiges If J t) the KCMSD's education system. KCMSD is also confident that the State's discriminatory conduct had a debilitating inter-generational effect for which it (the State) is liable... KCMSD is prepared to litigate this question in the District Court and all the way to the Supreme Court, if necessary. KCMSD totally and unequivocally rejects the State's definition of the victims as only those students who were enrolled in the KCMSD when the Court made its liability finding.
CIF Issues.
Under Jenkins III, suburban comparability and desegregative attractiveness may not be valid or relevant relative to attracting whites. However, the Defendants, including the State, have a legal obligation to provide the victims with adequate educational facilities. Additional CIP funding is necessary to fulfill that obligation.
Educational reform in the following areas necessary to completely eliminate the educational vestiges of illegal segregation:
a. Curriculum b. Instruction c. Professional Development d. Assessment e. Personnel Evaluation

 
 1'
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

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

No. 77-0420-CV-W-4

STATE OF MISSOURI POST-HEARING MEMORANDUM IN OPPOSITION TO JOINT MOTION OF KCMSD AND PLAINTIFFS
FOR APPROVAL OF LONG--RANGE MAGNET RENEWAL PLAN In 1986, the Kansas City Missouri School District ("KCMSD") and the Jenkins Plaintiffs persuaded. this Court to order implementation of the original Long-Range Magnet Plan ("LRMP"). KCMSD and Plaintiffs ("Movants" here) contended at that time that implementation of such an ambitious and costly plan would radically transform the KCMSD and would achieve added desegregation by attracting significant numbers of white students from private schools in and around KCMSD and suburban schools as well. The plan was fully implemented in 1991-92 1 , with much of the

1 Di. sti. nctive magnet programs have been in place in
all high schools, middle schools, and two-thirds of the
elementary schools since the beginning of the 1991-92 school year. Operations at these schools are fully focused on implementation of the magnet theme(s) at each school. The central administration is clearly focused on magnet implementation, as it has been since 1986.
The contention that the magnet plan is not yet fully
ininl p m p nt p d 1-irause scimp ciFaci p s in snmp

Indeed, the testimony of Dr. David Armor, a desegregation

expert who has evaluated and. designed magnet plans for desegrega-

tion purposes in many school districts in this country and who

supports the magnet school concept as a desegregative tool, Tr.

3006, establishes that the LRMP is poorly designed. Dr. Armor

testified that extending and expanding the LRMP as Movants pro-

pose is equally ill-conceived and would ultimately jeopardize

the desegregation that has been attained in KCMSD over the past

seven years, by

failing to stabilize the current white popula-

tion. Based on his extensive study of desegregation programs

generally, and his extensive experience in evaluating and design-

ing magnet plans, Dr. Armor concluded that the LRMP is fundamen-

tally flawed because, among other problems, it contains "too

many magnets," Tr. 3009.

This Court's Desegregation Monitoring Committee ("DMC") also

had an opportunity to review the Movants' proposal. After numer-

ous subcommittee meetings and a meeting of the full committee,

at which the Movants made an extensive presentation of their

case for approval, the full. DMC, by unanimous vote of the 11

members present, concluded that no case for a ten-year extension

or an expansion of the LRMP had been made and rejected the pro-

posal. See, State Exhibit 56. Of particular relevance to the

Court, the DMC specifically mentioned, among other things, its

objections to magnetizing all the schools, the proposed ten-year

term for the renewal, altering existing themes without bottom-up

input and the fact that no meaningful plan was presented by

which KCMSD would fund its share of the costs of a program which

explained hereafter, due to the demographic trends occurring

within KCMSD, even doubling the number of transfers maintained

will not prevent the continued upward climb of the minority

percentage in KCMSD.

II. THE CLEAR DEMOGRAPHIC AND ENROLLMENT TRENDS IN THE KCMSD DEMONSTRATE THAT KCMSD'S WHITE POPULATION AND ENROLLMENT HAS NOT STABILIZED AND PRECLUDE THE ATTAINMENT OF THE GOALS OF A 60/40 RACIAL BALANCE OR EVEN THE NEW 65/35 GOAL TO WHICH THE KCMSD AND THE PLAINTIFFS HAVE RETREATED.

One of the central issues to be addressed by this Court in

deciding whether the KCMSD magnet plan should be continued or

expanded as proposed is whether the KCMSD magnet system will

ever attain an overall goal of a 60% black/40% white enrollment,

or even the 65% black/35% white goal that the KCMSD has more

recently proposed. This issue can only be resolved by a criti-

cal evaluation of the underlying demography of the school dis-

trict itself since it is from within the District that KCMSD

will primarily draw its white enrollment. Thus, the numerical

level desegregation that can be attained is necessarily depen-

dent on the changing demography within the KCMSD.

Tr. 2685

(Clark).

Understandably, the KCMSD would like to dismiss the demo-

graphic analysis of Doctors Clark and Morrison as "peripheral"

to the issues before the Court. See KCMSD Post-Trial Brief at

66. In view of the failure of the LRMP to even approximate its

central racial balance objectives after full implementation of

the plan, the KCMSD would prefer to continue to deal with easy

promises rather than concrete realities.

The fact remains,

however, that the demographic realities of the KCMSD impose

-q-

substantial limitations on the attainment of the racial balance
objectives of the current proposal before the Court or any oth-
er. To fail to recognize that fact is both short-sighted and
irresponsible.
A. The Resident White School Age Population and Enrollment Within the Borders of the KCMSD Will Continue to Decline Through the Year 2000
The State presented two expert demographers who addressed
the underlying demography within the KCMSD. Dr. William Clark,
a human geographer and demographer from UCLA, conducted a
demographic analysis of the school-age resident population 3 within the geographic boundaries 4 of
3 Dr. Clark analyzed the census data for the entire school age population within the KCMSD. This represents a larger universe of school age children than the actual enrollment in the KCMSD public schools, and includes the private and home schooled population as well as the population enrolled in the KCMSD. It is from within this larger universe that KCMSD draws its enrollment. Thus, the underlying demography of the entire school age population will necessarily define the resident pool of potential students for the KCMSD.
Dr. Peter Morrison conducted a complementary demographic analysis which focused on the actual school age population enrolled within the KCMSD. As demonstrated by Morrison's testimony and exhibits, the trends found the enrolled population in the KCMSD correspond to the resident school age population Tr. 2771-73.
4 There are a small number of tracts that cross the borders of the KCMSD into surrounding school districts. Employing a standard and reasonable method of tract splitting, Dr. Clark made various assumptions about he populations in those few tracts. Contrary to KCMSD's assertions, Dr. Clark's tract splitting methodology was reasonable and further refinements such as "aerial" photographs were not necessary to more precisely determine the KCMSD population in the relative small number of tracts involved. Tr. 2689.

the KCMSD to assess the changes in the school age population from 1980 to 1990. From these historical trends, Dr. Clark forecasted the future resident school-age population for both 1995 and the year 2000. In particular, Dr. Clark focused his analysis on the historical and future trends of the resident school-age white population within KCMSD's geographic boundaries.
Utilizing 1980 and 1990 census data and the cohort retention method 5 , which is a standard demographic method of predicting populations, Dr. Clark forecasted a somewhat stable black population, but continuing white school age population loss through the 1990's and into the year 2000. Tr. 2693; State Exhibit 80 (Table 2). Dr. Clark testified that with the underlying demography--namely a declining white school age population-it will be more difficult for the KCMSD to attain its racial percentage goals, especially since the current KCMSD enrollment reflects a substantially higher percentage of black students. Tr. 2695.
5 The cohort retention method utilized by Dr. Clark
assumes that the rates of retention within KCMSD for the school-age children from 1980 to 1990 will continue from 1990 to the year 2000. Tr. 2690-92. The methodology used in a standard method utilized by demographers to predict future populations. Tr. 2692. Contrary to KCMSD and the Plaintiffs' assertions, the white loss seen from 1980 to 1990 is likely to continue into the 90s. While the effect of the mandatory 6-C plan in the early 80s may have contributed to some portion of the trends in the 80s, so too has the implementation of the magnet plan in the latter half of the decade. That implementation and its effect, positive or negative, will have the same effect on the future trends.

An independent parallel analysis of the resident school age

population actually enrolled in the KCMSD was conducted by the

second State demographic expert, Dr. Peter Morrison. Dr.

Morrison presented historical evidence of the underlying demogra-

phy of the resident enrollment population. Utilizing the resi-

dent enrollment trends occurring in the previous four years and

the cohort retention methodology, Dr. Morrison was able to pre-

dict the resident enrollment through 1997.

The cohort grade progression method of predicting future

enrollments that Dr. Morrison employed is a traditional and

accepted mode of analysis. Tr. 2764-66. Moreover, the accuracy

of that method of enrollment projection in the KCMSD is con-

firmed by Dr. Morrison's experience, which he described. As

Dr. Morrison testified, he employed the same cohort grade pro-

gression method in the fall of 1990 to predict KCMSD's fall,

enrollments for the fall of 1992-93. Tr. at 2754-56; 2845-46;

State's Exhibit 86.

Comparison of Dr. Morrison's predicted

KCMSD enrollments for the fall of 1992-93 with the actual

enrollments that were later reported reveals that Dr.

Morrison's projection was within 14 students of the number

that actually enrolled. Tr. at 2756; State's Exhibit 92. The

enrollment projections offered by the KCMSD, by contrast, were

substantially in error within a matter of weeks after they were

prepared. On September 4, 1992, KCMSD published a set of enroll-

ment projections that had been prepared by its employee, Mary

Esselman. See KCMSD Exhibit 30. As Dr. Morrison testified,

Ms. Esselman projected an "expected" enrollment growth rate

during the first year of her forecast of 1.78%. Tr. 2761. In fact, however, the enrollment growth rate actually grew during that period by only 0.95%. See State's Exhibit 92. Thus, Ms. Esselman's projection predicted an enrollment growth rate in the first year that proved to be nearly twice the enrollment growth rate that was actually experienced. As Dr. Morrison commented, "a discrepancy this large in the first year of a multi-year forecast does not lend confidence to either the method or assumptions or both." Tr. 2761 6 .
Dr. Morrison employed the same method of analysis to project the future KCMSD enrolments through the fall of 1997 that he had used in the previous enrollment projection which had proven to be remarkably accurate. Tr. 2762-64; 2845-47. According to Dr. Morrison's expert judgment, the demonstrated accuracy of his previous KCMSD enrollment projection confirmed that the method of forecasting that he employed was appropriate to the circumstances, and that the judgments he had made in apply-
6 To convert Dr. Morrison's forecast to comparable
forecast growth rates, Dr. Morrison forecast a growth rate of 1.07% over a two year period, and the actual growth rate experienced over that two year period was 1.09%. Ms. Esselman, by contrast, forecast a growth rate of 1.78% over a one year period and the growth rate during that one year period was only 0.95%. See State's Exhibit 92. Although Ms. Esselman was called to testify on other issues as part of the KCMSD's rebuttal case, she offered no rebuttal to Dr. Morrison's testimony and no defense whatsoever of her enrollment projections that Dr. Morrison has explicitly criticized. By her silence on these issues, Ms. Esselman effectively conceded the validity of Dr. Morrison's analysis and his critique of her analysis.

ing that analysis were realistic when compared to the KCMSD's
experience and circumstances. Tr. 2762-63. His enrollment
forecast is, therefore, the best evidence of the enrollment
trends of the resident KCMSD students that has been placed be-
fore the Court. Its reliability is further confirmed by the
general consistency of the demographic trends that Dr. Clark
predicted for the total student population within the KCMSD and
the enrollment trends that Dr. Morrison predicted for that por-
tion of the total resident population that chooses to attend 7
school in the KCMSD public schools. Tr. at 2771-73 .
7 The KCMSD maintains that Dr. Morrison's projections are not reliable because they assertedly failed to recognize the positive effect on enrollments that the proposed revisions to the magnet plan will produce. See KCMSD Post-Trial Brief at 69. This argument illustrates the District's disposition to rely on easy promises rather than deal with reality. Indeed, Ms. Esselman's incorporation of such rosy promises for the future was what appears to have resulted in an "expected" enrollment forecast that was demonstrated to have overstated the anticipated KCMSD enrollment growth rate by 78% in the first forecast year alone. See Morrison Tr. 2761 (Morrison).
In any event, KCMSD's assertion that Dr. Morrison's enrollment forecast failed to account for the positive effects on enrollments of the magnet plan is simply mistaken. As Dr. Morrison testified, any improvement in the retention of KCMSD students resulting from the magnet plan is "embedded in the grade progression rates as they're now measured," which reflect an improved attractiveness and a continual process of phasing in the magnet system as it occurs and to the extent that those developments impact the KCMSD enrollments. Tr. 2824-25. As Dr. Morrison noted, that, the impact of the magnet plan in improving retention rates through an increased attractiveness of the school system could be expected to wane at some point in time. Tr. 2826-28.

Together, the analysis of Doctors Clark and Morrison establish the KCMSD's demographic realities that limit the District's ability to attain the promised 60/40 racial balance goal, or even its proposed relaxed goal of 65/35. As that evidence indicates, both the resident black population and the resident black enrollment will continue to increase, while both the resident white population and the resident white student enrollment will continue to decline. See Clark Tr. at 2693; and Tr. 2769-71; Morrison 2790-92; State Exhibits 89-91 8 . To date, the effect of the increasing resident minority enrollments and the declining resident non-minority enrollments have been masked somewhat by the additional non-minority enrollments entering the KCMSD from the suburbs. Tr. at 2768; 2791. Since the suburban non-minority enrollments can be expected to peak in the coming years, however, see Part II-C, infra, this masking effect cannot be expected to continue indefinitely.
B. The Overall White Population Within the KCMSD Continues to Decline and Contrary to the Unsubstantiated Assertions by Dr. Gary Orfield, the KCMSD Has Not Stabilized the White Population or Enrollments in the School District.
Contrary to the assertion made by counsel for the KCMSD during opening statement, the loss of white children from within
8 As Dr. Morrison summarized: And what I see really is a set of demographic realities that makes a 60-40 cr even a 65-35 racial balance unattainable because of where we are now and because of the underlying demographics and the dynamics that are operating.
-15-

the KCMSD has not been "virtually eliminated". Tr. at 25. In

fact, as the hearing progressed, KCMSD and Plaintiffs' asser-

tions of white stabilization grew even broader than KCMSD's

counsel's initial unsubstantiated claim. Through their housing

expert 9 ,

Dr .

Orfield",

movants

advanced

bold

claims , that not only had the white population stabilized in.

general, but also that the white school age population within

KCMSD had stabilized as well. Tr. 59-64. Although Dr.

Orfield further hypothesized that this purported stabilization

may be due to the implementation of the KCMSD magnet plan, Tr.

64, 77, 127, he admitted on cross examination that he had not

done enough work on the issue to say that the magnets had in

fact caused the stabilization that he claimed to exist. Tr. 118.

9 Dr. Orfield was generally qualified as an expert in school desegregation and housing segregation. Tr. 42. However, unlike the State's expert, Dr. William Clark, Dr. Orfield is not a demographer and his opinions regarding the demographics within the KCMSD should be given little, if any, weight.
10 While Dr. Orfield purported to be "unbiased" in his analysis of the demographic and housing trends within the KCMSD because he had not been paid for his work, he would be more aptly characterized as "uninformed". Dr. Orfield consistently testified in wholesale reliance on unverified charts and graphs that had been created by unidentified persons within the KCMSD and their attorneys. Tr. 85-90. In fact, Dr. Orfield readily admits that he had done no original or independent analysis or investigation, claiming "I don't prepare documents for parties". Tr. 86-87. This casual attitude toward the facts is in stark contrast to the State's experts, who, while paid for their efforts, did their own analyses of the data, verified their sources and accuracy of their work, and gave objective testimony relating to facts , both favorable and unfavorable.

Each demographic proposition offered by the KCMSD and Plaintiffs by Dr. Orfield was thoroughly dismantled by the testimony of Dr. Clark, who personally conducted a substantial demographic review of Kansas City 11 . As Dr. Clark demonstrated, Dr. Orfield presented an incomplete analysis of selective census tracts within the KCMSD boundaries, focusing on the rate of population loss from one decade to the next, rather than on the heart of the KCMSD demography--what the actual white loss has been and whether it is likely to continue in the future.
KCMSD's Exhibit 8 demonstrated the rate of population loss from the 1970's to the 1980's had slowed from 1980's to the 1990's. Tr. 60. From this exhibit, Dr. Orfield argued that Kansas City was somewhat interesting because the declining rate of population loss was unusual in big cities. Tr. 60-61. Dr. Clark not only challenged the rationale for using the rate of white loss from one decade to another as an indicator of school desegregation, he seriously questioned whether any inference could legitimately be drawn from such analyses. More importantly, Dr. Clark established that KCMSD reflected a substantial and consistent pattern of continued total and school age white loss
11 Interestingly, there was absolutely not one shred of evidence presented by the KCMSD or Plaintiffs to establish foundation for the demographic graphs and charts presented by Dr. Orfield. He admitted on cross-examination that he had no personal knowledge of who had conducted the analysis, or whether it had been done correctly and accurately. Tr. 87. While Dr. Orfield stated that KCMSD would present foundation witnesses, Tr. 87, it never did. Thus, KCMSD Ex. 8 and Plaintiffs' Exhibits 1 and 2 should be given no weight whatsoever.

in the 1980's. Moreover, Dr. Clark demonstrated that the de-

cline in the rate of loss in the 1980's as compared to that

experienced in the 1970's was no source of comfort. As Dr.

Clark noted, "If you've lost half the white population in the

first decade, you got a much smaller base from which to lose the

population in the next decade. If you went on losing at that

rate, you'd have no one living in the city". Tr. at 2699

(Clark) 12 .

Further, Dr. Clark took issue with Dr.

Orfield's claim that the slowed rate of loss in Kansas City

was "interesting" or assertedly unusual for big cities. Dr.

Clark, who monitors national trends as a demographer, testified

that the Kansas City experience was not unusual at all. Tr.

2699.

Dr. Orfield testified that he further believed that KCMSD

schools had played a dramatic role to the process of accelera-

tion of racial change. Tr. 61. From an analysis of the select-

12 Using the example presented to Dr. Clark during cross-examination by KCMSD counsel, the absurdity of Orfield's analyses and the inferences to be drawn was clearly demonstrated. KCMSD counsel gave Dr. Clark a scenario where the white population in one tract showed the white population went from 170 to 45 and then from 1980 to 1990 the population went form 45 to 36. Tr. 2736. While Dr. Clark agreed that the rate of loss obviously decreased from 1980 to 1990 compared to 1970 to 1980, he accurately pointed out that the tract continued to lose white students. Tr. 2736. It was simply impossible to lose another 170 whites in the 80s since only 45 existed! If anything, KCMSD's example demonstrates the point Dr. Clark made: in the 1970s the District lost so many whites that it was virtually impossible for the District to lose the same number and at the same rate because the District had only a small white population left by 1980. Tr. 2699.
-18-

ed inner cities tracts, he went on to argue that there was evidence of stability in the white population. Tr. 60, 61, 64, 77, ].27. And finally, Dr. Orfield made the broad and admittedly unsubstantiated leap of faith that this "stability" may have been caused by the implementation of the magnet plan. Dr. Orfield admitted that he could not prove that the magnet system had any causal relationship to the alleged stability, and that a "major research project" which he had not done would be necessary to establish such causation. Tr. 60, 64, 127-129.
The so-called stabilization of the white population and Dr. Orfield's suggestion that the magnets may have played some role to play in this asserted phenomena were completely rebutted by the thorough analyses of Dr. Clark. See, State Exhibits 81, 82, 83, and 84. Analyzing the exact census tracts utilized by Dr. Orfield, Dr. Clark looked more closely at the black and white population changes from the 1970's through the 1990's and found that the white population was not stable at all 13 . Tr. 2701, 2704, 2708, 2710-14.
13 Focusing on the white population changes, Dr. Clark demonstrated that significant white loss was experienced in the 1980s in the majority of tracts chosen by Dr. Orfield. Dr. Clark concluded that regardless of the rate of loss, explained by the already large losses in the 1970s, there was a consistent pattern of white loss in both the total population and the school-age population through the 1980s. Tr. 2701. In fact, in the Orfield tracts alone, from 1980 to 1990, the District lost 562 white five (5)-to-fourteen (14) year olds--at least an entire school's worth of children. Tr. 2703.
-19-

KCMSD's school age population from 1980 to 1990 than Tract 51: significant and continuing white loss. Tr. 2708 15 .
Dr. Clark also offered his opinion concerning the magnet plan's prospect of reversing the white loss trends experienced in KCMSD thus far. Having researched this point in other cities and written scholarly articles on this very. subject, Dr. Clark concluded that desegregation plans do not cause the racial change in the area populations as Dr. Orfield espoused. Tr. 2715. Given the history of the LRMP in Kansas City thus far, it is unlikely to produce that type of effect in the future. Tr. 2715.
C. The Additional Increase in White Enrollment As A Result of Suburban Transfer Students Will Not Enable the KCMSD to Attain or Even Closely Approach the Stated Racial Balance Goals
The testimony of Doctors Clark and Morrison regarding trends in the total KCMSD population and KCMSD's resident student population establish significant limitations on what can realistically be expected to be attained in future years. That evidence, when considered with the projected peaking of the suburban white enrollments in the coming years, explain why neither an extension of the LRMP nor its proposed expansion can realistically be expected to produce the KCMSD racial composi-
15 To verify his analyses of tract 51, Dr. Clark went one step further. In State ex. 84, Dr. Clark analyzed a significant number of additional inner city tracts surrounding tract 51, including a number of the tracts contained in Dr. Orfield's analyses. Again, Dr. Clark found the same trend--significant and continuing white population loss. Tr. 2713.
-21-

tion of 60% minority and 40% non-minority that the KCMSD prom-

ised in years past, or even the 65/35 goal that it advanced at

this hearing.

The survey conducted under the supervision of Doctors

Clark and Armor indicates that the KCMSD magnet system, as cur-

rently implemented or as proposed for the future, offers only

limited potential for attracting additional white suburban stu-

dents into the KCMSD. According to Dr. Armor, a competent inter-

pretation of the results of the telephone survey conducted under

his supervision in the KCMSD and the surrounding suburban dis-

tricts in December, 1992 and January, 1993 indicates that, even

under optimal conditions, KCMSD's magnet system can only be

expected to produce a maximum potential pool of approximately

3,300 transfer students from the suburban districts.

Tr.

2921 16 . Dr. Armor's projected number does not suggest a

potential for 3,300 additional students; rather, his projected

maximum pool includes the 1,290 transfer students that KCMSD

claims already are attending its schools. Tr. 2923. Thus, the

additional maximum potential pool of suburban transfers is

only some 2,000 students.

Dr. Armor's testimony also clearly establishes that the

likelihood of KCMSD attracting the full potential 3,300 students

is not substantial. As he noted, although a seemingly competent

16 As Dr. Armor indicated, this projection would apply even if the KCMSD's proposed expansion of its magnet programs were authorized. Tr. 2927-29.
-2'2-

49
survey conducted by the KCMSD in 1986 17 projected that 6%
of the suburban student population would enter the KCMSD to
attend its magnet schools, only approximately 1.5% of the subur-
ban student population actually entered the KCMSD public schools
in the following six years. Tr. 3004-05. The KCMSD's actual
experience, in contrast to the predictions of the prior survey,,
prompted Dr. Armor to testify that he was not optimistic that
KCMSD would actually attain the full potential of suburban trans-
fer students that his survey suggested for the coming years.
Tr. 2994 18 . In Dr. Armor's view, the KCMSD will be fortu-
nate to get a total number of approximately 3% of the potential
transfer students, Tr. 2995, only some 1,000 more than the KCMSD
claims currently attend its magnet schools.
17 Dr. Armor examined previous surveys conducted in 1986 and 1992. As he testified, he found the 1986 survey to be useful to measuring the perception of the potential for the KCMSD magnets at that time, although its results are too dated to serve as a significant measure of current suburban interest. Dr. Armor found the 1992 survey to be of considerably less utility, however, because it was incomplete and failed to ask critical questions that must be examined if a survey is to provide a valid basis for predicting behavior, such as whether parents would actually send their children to the magnet schools and, if so, what themes would. be sufficiently attractive to prompt suburban transfers. Tr. 2860.
18 Other expressions of opinion developed through the
recent survey corroborate that pessimism. For example, the level of parental satisfaction with their own public school systems is quite high in the suburban school districts. In Dr. Armor's view, this makes students less likely to transfer into the KCMSD than they would be if the suburban school systems were perceived to be unsatisfactory. Tr. 2885-86.
-23-

districts pose substantial constraints on the overall level of racial balance that can be attained in the KCMSD at any cost. As Dr. Armor summarized all of the evidence, obtaining the initial goal of a 60/40 racial balance is not attainable.
I'm not implying that if you guys just did this right, you could actually get the 60-40. I do not believe that that's in the demographics and it's in the cards, based on what we've seen here.
Tr. 2996 (Armor). If all of the potential pool of suburban transfer students entered the KCMSD and remained in its schools--
a prospect that Dr. Armor decidedly does not predict, Tr. 2911-14--the resulting racial balance that would be attained
would be only 72% black and 78% white. Tr. 2926 (Armor). In
fact, Dr. Armor's view is that the more likely racial balance
that the KCMSD can attain even with an extension and expansion of the magnet plan is approximately 75/25. Tr. 2994.
III. THE KCMSD MAGNET SYSTEM HAS NOT PRODUCED SIGNIFICANT ACADEMIC ACHIEVEMENT OR ENHANCED THE DISTRICT'S ABILITY TO ATTRACT SIGNIFICANT WHITE STUDENT POPULATIONS. A. The State Proved Through Compelling Statistical Analysis That the Magnet Schools, As Implemented in the KCMSD, Have Not Resulted in Increased Black Student Achievement.
The State presented the testimony of Dr. John
Alspaugh, Professor of Education and Statistics at the
University of Missouri-Columbia, to support its position
that the magnet program, as implemented in the KCMSD, has not had a significant positive effect on student achievement. Dr. Alspaugh has specialized in educational statistics and research methods for the last 28 years, Tr. 2311,
-26-

•

and his findings20

See, generally, KCMSD Post-

Trial Memorandum, at 78-90. After all, Dr. Alspaugh's

conclusions are a stunning indictment of the District's

ability to implement the magnet school concept in a way that

improves academic achievement for the aggrieved class of

students or for-all students, and thus enhances the attrac-

tiveness of the KCMSD to additional non-minority students.

a. No differences between magnet schools and non-magnet schools in terms of black student achievement.

First, Dr. Alspaugh concluded there is no consistent

difference between magnet and non-magnet elementary schools

in term of reading and math achievement. Tr. 2316. As

support for this conclusion, Dr. Alspaugh painstakingly

reviewed the data found in State Ex. 64. Tr. 2333-2335.

Dr. Alspaugh explained that, even before controlling for

the factors of percentage minority students, percentage of

students on free lunch and percentage of students enrolled

after the first month of school, there were just as many

instances where non-magnet elementary schools outperformed

their magnet counterparts as vice versa. Tr. 2334. Dr.

Alspaugh next explained that after adjusting for the influ-

ences mentioned earlier, the same exact conclusion result-

20 It is important to note here that the District's
rebuttal was designed to correct deficiencies in their own data as well as to comment on early drafts of Dr. Alspaugh's work that the State never presented in its case in chief.
-29-

ed. Tr. 2334-35. This conclusion is vitally important because it shows, for the only grades where such a comparison is possible, that the KCMSD's magnet schools have not been associated with a significant increase in black reading or math grade level equivalent achievement scores.
b. After controlling for the disparate socioeconomic backgrounds of students at magnet versus non-magnet schools, non-magnet students perform better academically.
Dr. Alspaugh's second conclusion was in two parts. He found that there is a marked difference between the socioeconomic backgrounds of students assigned to magnet versus non-magnet schools and that, if one statistically removes the influence of socioeconomic factors on student achievement 21 , then students assigned to non-magnet schools tend to have higher achievement than students in magnet schools. Tr. 2316. As support for this conclusion, Dr. Alspaugh very carefully described the statistics portrayed in State Ex. 66. Tr. 2337. State's Ex. 66 revealed that non-magnet KCMSD elementary schools have a significantly higher percentage of minority enrollment as well as a higher percentage of black students tested as a percentage of the total number of students tested. Non-magnet schools also
21 A statistical process which will be explained, intra. Generally, however, the process used by Dr. Alspaugh is one called statistical regression which is a standard methodology employed by educational statisticians to assess the impact of certainvariables on learning.
-30-

have quite significantly higher numbers of students
receiving free lunch as well as a greater number of students
who enroll after the first month of school. See State Ex.
66.
To illustrate the conclusions Dr. Alspaugh reached
from the tables on State Ex. 66, he prepared the graphs
found on State Ex. 61 (graphs 3-6). At the bottom of each
of those graphs, Dr. Alspaugh has indicated that
non-magnet schools consistently have higher percentages of
students whose socioeconomic factors are likely to have an
adverse effect on student achievement. Tr. 2338-39.
Further, State Ex. 67 shows that if one controls for the
percentage of students at each type of school who receive
free lunch, students in non-magnet schools tend to have higher achievement than students in magnet schools 22 .
22 In criticizing Dr. Alspaugh's use of percentage black students tested, percent minority enrollment, percent free lunch and percent late enrollment, the District makes baseless arguments. Specifically, the District criticizes Dr. Alspaugh for not controlling for such factors as teacher training and experience, status of capital renovation, class size, school size, or the level of educational attainment of the parents of the students who were tested in March, 1992. See KCMSD Post-Trial Brief at 82. The State never disputed that the District's "preferred factors" are quantifiable; rather the State's experts merely maintain that the socioeconomic factors controlled for are the ones most likely to affect student achievement. The District has presented not one scintilla of evidence to refute the position taken by the State experts that the major effects of student achievement are related to the socioeconomic factors for which Dr. Alspaugh controlled in his analysis.
More specifically, Dr. Alspaugh even addressed the issue of (Footnote Continued)
-31-

c. Magnet schools, as implemented in the KCMSD are associated with lower black student achievement and lower overall student achievement in the District.
Dr. Alspaugh's third conclusion is that the implementation of magnet schools to increase the relative percentage of white students in the elementary schools is associated with lower black student achievement and lower overall student achievement. Tr. 2316. Specifically, Dr. Alspaugh explained very systematically his conclusions drawn from the data set forth in State Ex. 70. Tr. 2360-65. According to Dr. Alspaugh, this exhibit shows that black student achievement has been declining in KCMSD elementary and middle schools. Tr. 2360. Even in those few instances where black student achievement seems nominally to have increased, Dr. Alspaugh testified that one cannot know for sure whether these few increases shown for some of the high school cohorts in that exhibit were actually improvements at all because, in each case, fewer than 50% of the original students remained in the cohort. Tr. 2364-65. This is likely
(Footnote Continued) teacher training and experience when he testified that, based on his research, "years of experience of teachers doesn't relate directly to achievement". Tr. 2448. Moreover, Dr. Walberg, testified similarly, confirming "a long record of research which I would hold to now...many studies have shown an absence of relationship of the number of years of the teachers' experience, and even advanced degree levels, to how much their children learn...that is certainly consistent with my present views". Tr. 2609-2610.
-32-

 
 OFFICES OF THE STATE AUDITOR OF MISSOURI
JEFFERSON CITY SPECIAL REVIEW OF DESEGREGATION
PAYMENTS TO KANSAS CITY, MISSOURI
SCHOOL DISTRICT YEAR ENDED JUNE 30, 1990
MARGARET KELLY, CPA
Report No. 91-103 June 20, 1991
I

SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT
TABLE OF CONTENTS

STATE AUDITOR'S REPORT

EXECUTIVE SUMMARY

BACKGROUND

MANAGEMENT ADVISORY REPORT

SUMMARY OF FINDINGS

Number

Description

1

Revenues

2.

Tax Rate Calculation

3.

Capital Improvement Program Payments

4.

Asbestos Contracts

5.

Procurement Procedures

6.

Project Management Team

7.

Magnet Transportation

8.

Expenditure Procedures

9.

Budgets

10.

Effective Schools

11.

Teachers Tuition Assistance Program

12.

Parents-As-Teachers Program

FOLLOW-UP ON STATE AUDITOR'S PRIOR RECOMMENDATIONS

APPENDICES

Appendix

A

Cumulative Schedule of Budgeted and Actual

Desegregation Expenditures, Through

June 30, 1990

B

Cumulative Activity of Funding, Five Years

Ended June 30, 1990

Page 1-2
3-7 8-12 13-39 14-15
16 18 19 21 23 25 26 29 31 33 37 38 40-52 53
54-56
57

-i-

STATE AUDITOR OF MISSOURI
JEFFERSON CITY, MISSOURI 65102
MARGARET KELLY, CPA
STATE AUDITOR

(314) 751-4824

Honorable John D. Ashcroft, Governor and
Honorable William L. Webster, Attorney General and
Honorable Wendell Bailey, State Treasurer and
James R. Moody, Commissioner Office of Administration
and Robert E. Bartman, Commissioner Department of Elementary and Secondary Education Jefferson City, Missouri 65102
and Kansas City, Missouri Board of Education Kansas City, Missouri 64106
We have conducted a special review of payments which the state of Missouri made under order of the U. S. District Court, Western District of Missouri, Western Division, for eligible desegregation expenditures to the Kansas City, Missouri School District of Jackson County, Missouri for the year ended June 30, 1990. The purpose of this review was to:
1. Review the financing of the desegregation program.
2. Determine that the state's share of desegregation costs is in accordance with the amounts required by court orders.
3. Review whether the Kansas City, Missouri School District is conducting the desegregation program in substantial compliance with court orders.
4. Review staffing patterns related to certain desegregation programs.
5. Review magnet school transportation costs funded by the state and by the Kansas City, Missouri School District.
6. Determine the status of implementation of the recommendations made in the State Auditor's report for the year ended June 30, 1989.

Although the state payments to the Kansas City, Missouri School District were ordered by the court, the payments apparently violate Article IV, Section 28 of the Missouri Constitution which provides, "No money shall be withdrawn from the state treasury except" on "an appropriation made by law" by the state legislature. This report should not be construed as accepting the legality of these payments, it is intended only to provide information regarding the transactions that have occurred pursuant to court orders.
Further, the purpose of this review was not to determine the reasonableness of the court-approved desegregation budget or the necessity of desegregation expenditures to achieve racial integration. Our only criteria for determining the state's share of desegregation costs were court orders and the related desegregation plan and budget for the year ended June 30, 1990, prepared by the district and approved by the court.
Our review was made in accordance with applicable generally accepted government auditing standards and included such procedures as we considered necessary in the circumstances. In this regard, we inspected relevant records and reports maintained by the Kansas City, Missouri School District and examined district expenditures related to desegregation for compliance with court orders.
The data presented in the appendices were developed from the records of the district. We did not audit the data and, accordingly, we express no opinion on it.
Our review was limited to the specific matters described earlier and was based on selective tests and procedures considered appropriate in the circumstances. Had we performed additional procedures, other information might have come to our attention that would have been included in this report.
The accompanying Background is presented for informational purposes. This information was obtained from various U. S. District Court orders and the school district's management.
The accompanying Management Advisory Report presents our findings and recommendations arising from our review of state payments for eligible desegregation expenditures to the Kansas City, Missouri School District during the year ended June 30, 1990.

February 7, 1991

Margaret Kelly, CPA State Auditor

EXECUTIVE SUMMARY

SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT EXECUTIVE SUMMARY
As shown in Appendix A, costs charged to the Kansas City, Missouri School District desegregation plan during the year ended June 30, 1990, were $183,266,921 of which the state paid $118,300,546. Included in the desegregation plan expenditures is the state's share of the Desegregation Monitoring Committee expenses of $171,222. A cumulative summary of budgeted and actual desegregation plan expenditures is presented in Appendix A. Following is a summary of the questioned costs noted during this review, and a description of the reasons for questioning them. These questioned amounts totaled $4,506,179 for the year ended June 30, 1990. The state's share of these questioned costs is $2,900,420.
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SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT EXECUTIVE SUMMARY YEAR ENDED JUNE 30, 1990

Program

Description

Total Questio
Costned

Management Advisory Reort Number

Year Three (July 6, 1987 Court Order) Effective Schools

Expenditures in excess of court-ordered budget.

16

10.A.

Maintenance Plan

No bid documentation could be located.

52,354

5.B.

Total Year Three

52,370

Year Four (July 25, 1988 Court Order)

Effective Schools

Expenditures in excess of court-ordered budget.

58,374

10.A.

Long-Range Magnets

No bid documentation could be located.

90,385

5.B.

Magnet School Transportation Cab overcharges.

222,381

7.A.

Base Budgets

Purchase order not signed or dated.

3,510

8.C.

Total Year Four

374,650

Year Five (July 5, 1989 Court Order) Public Relations

Expenditures in excess of court-ordered budget.

17,368

9. A.

Teachers Salary

Expenditures in excess of court-ordered budget.

830,496

9. A.

Effective Schools

Expenditures in excess of court-ordered budget.

48,833

10.A.

Payment made from copy of invoice.

32,220

10.E.

Long-Range Magnets

No bid documentation could be located.

60,417

5.B.

Default of TTAP participant. $

3,360

11.A.

SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT EXECUTIVE SUMMARY (CONTINUED) YEAR ENDED JUNE 30, 1990

Program

Description

Total Questioned
Cost

Management Advisory Report Number

Year Five (July 5, 1989 Court Order) (Continued) Maintenance Plan
Non-program Specific
Total Year Five Magnet Capital Improvements
(Years 3, 4, and 5)

Purchase order was not signed

or dated.

$

175,298

Unallocated tax revenues.

824,006

Unrecognized revenue from check write-offs.

8,166

2,000,164

Unsupported labor payments to Project Management Team company.

Change order resulting from architectural errors.

Change order for separate project--not part of original contract, and was not bid.

Emergency contract without adequate bids.

Employee function is duplicate of Project Management Team contractual services.

Documentation of land appraisal and negotiation services not located.

Program 683 CIP Staging has not been court approved.

No bid documentation could be located.

Documentation for acceptance of higher bid could not be located.

Purchase order could not be

located.

$

650,974 195,779
48,000 65,000 46,793 112,397 223,266 36,230 75,155 113,660

8.C.
1 .A. 1 .B.
6. A. 3. A. 3. A. 3. B.
6 .B.
5.A.
9. C.
5. B. 5.B. 8.A.

-6--

SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT EXECUTIVE SUMMARY (CONTINUED) YEAR ENDED JUNE 30, 1990

Program

Description

Total Questio
Costned

Management Advisory Reort Number

Magnet Capital Improvements (Years 3, 4, and 5) (Continued)

No indication of receipt of

some items nor were the items

received recorded on the

fixed asset listing.

$

154,778

Purchase order not signed or dated.

29,850

No documentation to support negotiation of services, and no approval indicated for payment.

4,505

No documentation to support negotiation of services.

87,268

No documentation of how asbestos firms were selected.

50,833

No approval indicated for payment.

14,894

Original bid could not be located.

24,650

Asbestos settlement received by KCMSD, not allocated to desegregation fund.

144,963

Total Capital Improvements Court Order

2,078,995

Total Questioned Costs, Year Ended June 30, 1990

$ 4,506,179

8.B. S.C.
4.B. 4.B. 4.B. 4.B. 4.B. 4.C.

[WI

BACKGROUND

SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT BACKGROUND
In 1977, the Kansas City, Missouri School District (KCMSD) on behalf of all children of the district sued various federal agencies (the Department of Health, Education and Welfare, the Department of Housing and Urban Development, and the Department of Transportation), the states of Missouri and Kansas, the Governor and the State Board of Education of each state, five school districts in Kansas, thirteen school districts in Missouri, and the superintendent of each school district in U. S. District Court, Western District of Missouri, Western Division, alleging these various institutions caused or contributed to cause a racially segregated urban school system in violation of the U. S. Constitution.
In 1978, the U. S. District Court ruled that the KCMSD could not represent its students as plaintiff in the lawsuit and ordered the KCMSD be realigned as a defendant in the case. Additionally, the U. S. District Court dismissed the state of Kansas, its officials and school districts from the lawsuit subject to an appeal of this matter in the Eighth Circuit Court of Appeals.
In 1979, the KCMSD filed a cross-claim with the U. S. District Court against the state of Missouri and subsequently filed a motion with the court for a partial summary judgment. In 1981, the former motion was allowed, but the U. S. District Court refused to grant immediate relief regarding the latter request.
In 1984, the U. S. District Court dismissed the thirteen Missouri school districts and the various federal agencies from the lawsuit ruling that only the KCMSD and the state of Missouri were responsible for the segregated urban school district, and ordered each to develop a desegregation plan for the court's review to provide a framework for the ultimate remedial solution to the lawsuit. The KCMSD and the state of Missouri submitted desegregation plans to the U. S. District Court.
The U. S. District Court rejected the interdistrict plan submitted by the KCMSD and requested an alternative intradistrict plan. This new plan, along with the state's intradistrict plan, was considered during the remedy hearings in May 1985. The alternative plan prepared by the KCMSD was approved by the U. S. District Court on June 14, 1985.
The desegregation plan adopted by the U. S. District Court included the following goals:
1. Conduct a study to determine the feasibility of further reductions in the percentages of black students in the twenty-five schools whose enrollment was 90 percent or more black, giving due consideration to the need for students to attend schools as close to home as possible;
2. Establish magnet schools with specialized learning programs to attract and hold students of all races;
-9-

3. Encourage voluntary desegregative transfers and new enrollments by improving the attractiveness and educational quality of all schools so conditions of the facilities and the educational programs will not serve as deterrents to students considering enrollment in any school;
4. Increase the quality education component of KCMSD by restoring its eligibility for AAA classification pursuant to the guidelines of the Missouri Department of Elementary and Secondary Education;
5. Develop more manageable teaching loads to increase individual attention and instruction per student by reducing elementary and secondary school class sizes;
6. Expand the amount of learning time available and improve the academic achievement of students within the KCMSD through a summer school program;
7. Implement a staff development program to specifically meet the training needs of individual teachers and principals;
8. Use a desegregation public relations program aimed at informing and soliciting the support of community members about the desegregation plan; and
9. Develop a voluntary interdistrict transfer program with surrounding suburban districts.
The U. S. District Court ordered the state of Missouri to fund the desegregation plan in the following manner:
A. The state shall pay in full costs of reducing class size, improving student achievement through effective schools and extensive staff development using magnet schools, developing and implementing a public information program, and encouraging voluntary interdistrict student transfers.
B. The state shall pay 50 percent of the costs of achieving an AAA rating, allowing certain students to attend a summer school program, providing full day kindergarten through six, cross-age instruction as well as parental, and implementing an early childhood development program.
C. Capital improvement funding was to be shared between the state at 72.97 percent and KCMSD at 27.03 percent for expenditures up to $27 million and $10 million, respectively.
In June 1986, the U. S. District Court issued a court order designed to enhance the goals previously outlined in the court's desegregation plan. This court order established the budget estimates for the next school year and clarified spending criteria of the various programs previously authorized by the court. In addition, the court approved funding for three magnet schools designed to attract nonminority enrollment and to provide a vehicle to improve student achievement.
In November 1986, the U. S. District Court approved a comprehensive magnet school plan to be implemented over a six-year period with the funding requirements estimated
-10-
/4,

at $142,736,025. Of this amount, $89,877,724 is to be paid by the state of Missouri, with the remaining amount of $52,858,301 for improvements to eleven existing schools and the construction of four new schools, being funded by both the state and KCMSD.
In December 1986, the Eighth Circuit Court of Appeals upheld the U. S. District
Court's decision that the suburban school districts, as well as the U. S. Department of
Housing and Urban Development, are not liable for KCMSD's segregation and may not be ordered to participate in desegregation relief. In addition, the Eighth Circuit Court of Appeals directed the U. S. District Court to modify its orders to divide all costs associated with the desegregation plan equally between KCMSD and the state. Subsequently, the KCMSD asked the Eighth Circuit Court of Appeals to remand this cause to the district court to determine additional facts. The Eighth Circuit Court of Appeals granted this request in March 1987. In July 1987, the U. S. District Court established that the state and district are jointly and severely liable for the desegregation budget at 75 percent and 25 percent, respectively.
In July 1987, the U. S. District Court approved the Year 3 Desegregation Budget.
In September 1987, the U. S. District Court approved the following:
1. A long-range capital improvement plan for $187,450,334 to be completed by the fall of 1990. This amount was to be funded equally by the state and the KCMSD.
2. A 1.5 percent surcharge on the Missouri State Income Tax of residents and nonresidents of the KCMSD who earn income for work and services within the KCMSD, effective September 25, 1987. The revenue generated from the surtax was to be used to retire capital improvement bonds which were authorized by the court.
3. An increase in the property tax of the KCMSD of $1.95, making the total tax levy $4 per $100 assessed valuation through the 1991-92 fiscal year.
4. Issuance of $150,000,000 of capital improvement bonds to be retired within twenty years from the date of issue. These bonds were to be paid off with the income tax surcharge.
In October 1987, the U. S. District Court ruled that the $1.95 property tax levy rather than the income tax surcharge should be used to retire the capital improvement bonds. In addition, the court ruled that the income tax surcharge would remain in effect through the 1991-92 fiscal year and would be used to finance the desegregation costs other than capital improvement costs.
In February 1988, the U. S. District Court ruled that the state was entitled to a credit of $7,427,638 on its capital improvement funding obligation as a result of the Eighth Circuit Court of Appeals ruling that $37,000,000 in capital improvement costs should be shared equally by the state and the KCMSD. (As of the date of the court ruling, the credit due actually totaled $8,093,054.) However, because of the KCMSD's lack of funds, the U. S. District Court further ruled that this credit could not be applied by the state until the court authorized it.

On July 25, 1988, the court ruled the interest expense on the $27,000,000 of KCMSD bonds used to fund the district's share of capital improvements as ordered in the June 14, 1985, order, was not a liability of the state.
Funding for magnet transportation costs for the 1987-88 school year was granted in an August 29, 1988, ruling. The court ruled magnet transportation would not be funded through the state aid formula because this would only reimburse the KCMSD for 54 percent of its cost and the state's ordered share is 75 percent. In addition, because magnet transportation is inefficient, funding through the state aid formula would penalize the district. The court approved an incremental cost formula to compute the added cost of magnet transportation. This formula was later revised in April 1990.
In August 1988, the Eighth Circuit Court of Appeals reversed the income tax surcharge and ruled, in January 1989, that the surcharge should be fully refunded by the state. The appeals court further ruled that the district court could order the school district to increase its property tax levy, but modified the manner by which future tax increases would be set. In future years, the levy increase is to be set by the school district within a maximum approved by the district court.
In January 1989, the district court also changed the method of determining the state's contribution to desegregation. Essentially, once the KCMSD's desegregation funds available during the month have been depleted the state pays for all remaining expenses, even if they are for items that the KCMSD is to fully fund. As a result of this order, the state has paid an additional $3,923,212 and $1,814,368 during fiscal years 1990 and 1989, respectively, over what would have been paid based on the previously ordered cost-sharing percentages.
In October 1989, the U. S. District Court ruled the state was entitled to a credit of $7,804,780 on its incremental magnet cost because these costs were base operating costs for 1986-87 year which had been incurred by the KCMSD without the court-ordered magnet programs.
In April 1990, the U. S. Supreme Court ruled the U. S. District Court did not have the authority to directly order an increased tax levy as was done in 1987, but could order the school district to levy a tax adequate to fund the court-ordered desegregation remedy. The case was remanded to the lower courts for further proceedings consistent with this opinion.
On October 31, 1983, Governor Christopher S. Bond signed Executive Order No. 83-14 creating the Metropolitan Desegregation Task Force consisting of the Attorney General, State Auditor, State Treasurer, Commissioner of Education, and Commissioner of Administration.
The main purposes of the task force are to determine whether desegregation expenditures are properly documented and accounted for, to determine if the school district is conducting desegregation programs in substantial compliance with applicable federal court orders, and to identify possible improvements in the operation of desegregation programs which would result in increased economy and efficiency.
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PPM

MANAGEMENT ADVISORY REPORT

SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT SUMMARY OF FINDINGS
1. Revenues (pages 16-18) Various taxes were not accurately allocated to the Desegregation Fund resulting in $824,006 due to the Desegregation Fund from the district's operating funds. In addition, certain revenue amounts were not included on the monthly drawdown reports.
2. Tax Rate Calculation (pages 18-19) The district does not properly file the required tax rate calculation with the State Auditor's office.
3. Capital Improvement Program Payments (pages 19-21) Several capital improvement expenditure processes are not adequately monitored to ensure only legitimate costs are paid.
4. Asbestos Contracts (pages 21-23) The district has not applied for Environmental Protection Agency grants or loans which are available in conjunction with the Asbestos School Hazard Abatement Act of 1984. Adequate documentation was not maintained to support the payment of $182,150 in asbestos expenditures. The district received $237,968 in damages from asbestos abatement. This amount less attorney fees should be split between the Desegregation Account and the Operating Account.
5. Procurement Procedures (pages 23-25) State and school district bidding requirements were not regularly being followed.
6. Project Management Team (pages 25-26) Expenses totaling $697,767 paid for the Project Management Team were not adequately documented or did not appear reasonable.
7. Magnet Transportation (pages 26-29) Transportation billings and information for cabs and buses are not properly monitored.
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8. Expenditure Procedures (pages 29-31) District expenditure policies and procedures are not being consistently followed. Expenditures noted as being paid without adequate documentation or not appearing reasonable amounted to over $475,000.
9. Budgets (pages 31-33) In fiscal year 1990, the district overspent the court budgets by approximately $848,000 without approval of the court. Other costs were charged when no budget had been approved.
10. Effective Schools (pages 33-37) Effective Schools Program budgets are not adequately monitored for compliance with court orders.
11. Teacher Tuition Assistance Program (pages 37-38) Payment plans were not established for all students in the program who defaulted. Teachers Tuition Assistance Program payments were not properly applied against one account.
12. Parents-As-Teachers Program (pages 38-39) The state has funded the district's Parents-As-Teachers Program through both desegregation and state grant payments.
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SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT MANAGEMENT ADVISORY REPORT
1. Revenues
The January 3, 1989, court order revised the district's procedures for obtaining state reimbursement. This order requires the district to pay all desegregation expenses incurred from available desegregation revenues, with any additional costs to be paid by the state. The district submits a monthly report to the state detailing the desegregation revenues and expenditures used to calculate the account withdrawal. The report also provides the amount required to replenish the account to the court-ordered cap of $11,000,000.
A. The district incorrectly allocated certain fiscal year 1990 desegregation property taxes to the district's Operating Account.
1) Tax year 1989 property tax-related revenues such as payments in lieu of taxes, financial institution taxes, state railroad and utility taxes, County Stock Insurance Fund taxes, and condemnation taxes were not allocated to the Desegregation Fund in fiscal year 1990. Each of these revenues increased due to the additional $1.95 desegregation tax levy established by U. S. District Court in 1987. Therefore, a proportionate amount should be allocated to the Desegregation Fund.
The U. S. District Court, in a November 1, 1990 court order, allowed the state a total credit for tax year 1989 of $769,779 for state railroad and utility taxes, financial institution taxes, and County Stock Insurance Fund taxes. However, the Court suspended payment to the state until further review of the district's ability to repay this amount. The Court did not rule on payments in lieu of taxes or condemnation taxes. These tax year 1989 taxes totaled $54,227.
The allocation errors noted above resulted in $824,006 due to the Desegregation Fund from the district's operating funds for the year ended June 30, 1990. Thus, the state reimbursed $824,006 for which desegregation revenues were available in fiscal year 1990. Since these amounts are due from operating funds to the Desegregation Fund, we question the state's payment of expenditures totaling :.:24,006. This amount is included as nonprogram specific in the executive summary and Appendix A as it represents excess funding rather than program charges.
2) Our prior report noted improper allocation of tax year 1987 and 1988 local railroad and utility taxes. The district transferred $460,546 of the $987,906 due to the Desegregation Fund from the
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Operating Fund during fiscal year 1990, leaving $527,360 still remaining to be paid by the district to the state.
No action has been taken by the district regarding the repayment of this remaining amount. This amount will not be questioned in this report, as it was included in questioned costs of the prior audit.
B. At year end, the district writes off checks outstanding which are over nine months old, and considers this a revenue on the drawdown report. Checks falling into this category totaled $33,343 for fiscal year 1990; however, $8,166 of this amount was not included as revenue on the monthly drawdown reports.
District personnel stated the $8,166 had not been included on the monthly drawdown reports because they were waiting to notify the vendors that the checks were to be voided. As of January 1991, the district had riot notified the vendors, nor credited the drawdown report.
As a result of this omission, the state has reimbursed $8,166 for which desegregation revenues were available. We question the state's payment of expenditures totaling $8,166. This amount is included as nonprogram specific in the executive summary and Appendix A as it represents excess funding rather than program charges.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A.1. Transfer the $824,006 as soon as the court authorizes the payment.
2. Establish procedures to consistently and properly allocate to the Desegregation Fund, the desegregation-related tax revenues received. The $527,360 previously credited to the district's Operating Fund should be transferred to the Desegregation Fund.
B. Credit the state for $8,166 in unreported desegregation revenues.
AUDITEE'S RESPONSE
A.1. The court has only authorized a credit of $769,779. The court did not rule on payment in lieu of taxes and condemnation taxes. The court ruled that only any incremental revenues from taxes should be credited to the Desegregation Fund. Payment in lieu of taxes is a negotiated amount so no incremental revenue would be generated as a result of the desegregation levy. A determination of incremental revenues resulting from condemnation taxes would have to be made by the parties as was done with the other taxes mentioned.
2. Local railroad and utility taxes are not properly allocated to the Desegregation Fund. The state has received money from the 1988 and 1989 taxes that were held as protested. A determination has not been made on which credits this

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money will cover. The $527,360 may be included as one of the credits the protested money covers.
B. Checks are written off only after the vendor is notified to reduce the risk that the check will clear the bank after the adjustment is made. District personnel have not had time to notify all of the vendors. This $8,166 represents a fraction of 1 percent of the state's reimbursement. Credit will be given on the drawdown report when the checks are written off. Current year write offs have been done on a more timely basis.
2. Tax Rate Calculation
The district's tax levy in tax year 1987 (fiscal year 1988) was established by the U. S. District Court. Levies in fiscal years 1989 and 1990 were set by the district and approved by the court. The total levy each year consisted of the district's normal "operating" funds levy and an additional desegregation levy. The district has allocated revenues from the total $4 levy based on a $2.05 levy for operating funds and a $1.95 levy for the Desegregation Fund. However, the state constitution and laws put certain limits on the levy the district can have for operating purposes. These limits take into consideration the increase or decrease when determining the maximum tax rate the district can levy without voter approval.
To determine compliance with constitutional and statutory limits, the district is required to file certain information with the State Auditor's office annually to allow certification of its tax rate ceiling. The district has not been providing the necessary information, instead simply filing a statement of the court-ordered or approved levy.
1. Since the district tax rate is limited by the constitution and statute, any amount over the allowable ceiling should be allocated to the Desegregation Fund. Instead, the district maintains the $2.05 and $1.95 split for revenues generated by the $4 levy. As a result, the desegregation and operating funds may not be receiving the proper amount of tax revenues. Only those amounts allowed by state law should be credited to the operating funds of the district.
2. When the desegregation levy is no longer required, the district will not know its legal tax rate ceiling. As a result, it will have to recreate the information that should have been filed annually or obtain voter approval of a new levy.
Based on information provided by the Jackson County Clerk's office, it appears changes in the district's assessed valuation and other factors have allowed the operating levies to remain at $2.05 during fiscal years 1988 through 1990.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should annually file the required tax rate calculations with the State Auditor's office.
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AUDITEE'S RESPONSE
The district would be willing to discuss this matter with representatives of the state. This district will also discuss this matter with its legal counsel.
3. Capital Improvement Program Payments
As part of the desegregation Capital Improvements Program (CIP), the Project Management Team (PMT) was established to assist the district in planning and monitoring the various CIP projects. While reviewing the procedures used by the PMT to monitor contracts and payments, the following concerns were noted:
A. The PMT requires change orders for any modifications to original construction contracts. Proposed changes could add considerably to the cost, or delay completion of the desegregation projects.
During our review of contracts and change orders, the following observations were made:
1) PMT personnel estimate $195,779 in change orders resulted from architectural errors or omissions for one project. For example, electrical power for numerous items was omitted, and mechanical controls at a greenhouse were not adequate as originally drawn. These change orders were necessary to complete the original planned project.
Additional costs due to architectural errors or omissions should be assessed from the architect or PMT personnel, or the district operating funds should pay for PMT oversights. District personnel stated they are in prearbitration with the architect to recover these cost.
We question the state's share of these costs, or $97,890.
2) One change order, which totaled $48,000, was for the construction of two concession stands. This change order was not due to a modification in the original plan nor because of changes necessary to meet building codes. Thus, it appears this change order is a separate project and not part of the original contract. As such, the additional work should have been bid to obtain the lowest price possible.
We question the state's portion of the $48,000, or $24,000.
B. During the year ended June 30, 1990, the district used an emergency contract to hire personnel to move several schools during the summer, so that renovation or asbestos work could be performed. District policy allows the superintendent, in situations he deems an emergency, to make
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purchases not exceeding $5,000 without formal bidding or prior approval of the board. Because the deadline for regular board items was missed by two days, this contract was classified as emergency and, thus, not formally bid.
Adequate comprehensive planning and survey work would have allowed proper bidding to ensure the best price was obtained. This emergency contract totaled $65,000. We question the state's portion, or $32,500.
C. The district's construction contracts contain a "liquidated damages" clause which calls for damages to be paid by the contractor when the contract's completion dates are not met.
During our review of construction projects which were to be substantially completed in fiscal year 1990, we noted that liquidated damages were not always settled timely when the contract's estimated substantial completion date was not met. For instance, one contract tested had actual completion dates for the main building, gymnasium, and swimming pool which were twenty, twenty-four, and seventy days later than the required completion dates. As of February 1, 1991, liquidated damages were to be assessed against the company in an upcoming change order, but amounts had not been withheld or collected within six months of the completion.
If the completion date is later than the contract date, liquidated damages should be charged on a timely basis to the contractor consistent with the liquidated damages clause in the contract.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A. Seek reimbursement from the applicable third parties and adjust the state drawdown report for the excess expenditures.
B. Obtain information far enough in advance to ensure that "emergency contract" status can be avoided for moving personnel contracts. This allows more time for competitive bids to be obtained from perspective vendors.
C. Seek liquidated damages on a timely basis from contractors, as called for in the contract.
AUDITEE'S RESPONSE
A.1. The district is still in prearbitration negotiations with the architect. If prearbitration negotiations are not successful in recovery, the district is prepared to file for arbitration to resolve the issue. Any costs recovered will be properly credited to the state.
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2. This was a change order to the contract for stadium improvements at Southeast and East high schools. The concession stands in the change order were only for East. Change orders are an addition to the contract and do not require the project to go out for bid.
B. The Board item requesting temporary summer hire was submitted in order to meet all of the critical time lines to close schools and relocate items for construction and asbestos removal. The use of temporary workers to perform the many tasks required was more economical and provided greater flexibility than using contract movers.
C. The determination of liquidated damages is done as part of the close-out of the contract before the final payment is made. Any liquidated damages are usually processed as a change order resulting in the reduction of the contract amount and, therefore; reduces the final payment amount. The close out of contracts takes some time because of all of the final documentation required. For the contracts mentioned, there are sufficient funds being held as retainage to cover any amount of liquidated damages.
4. Asbestos Contracts
The district has expended over $3 million on asbestos consulting and abatement services during fiscal years 1989 and 1990. We noted the following concerns in our review of asbestos contracts:
A. According to the Environmental Protection Agency (EPA) asbestos coordinator for the Kansas City region, the district is eligible for grants and loans available from the EPA in conjunction with the Asbestos School Hazard Abatement Act of 1984. These monies are provided to help schools with the costs of asbestos abatement. According to the EPA, the district has never applied for these grants/loans. District personnel indicated that there was no time during this period to prepare the required application materials. The district should, however, apply for these grants in an effort to lessen the amounts currently paid by both the district and the state for asbestos abatement.
B. Expenditures for asbestos consulting and abatement services totaling $182,150 were not proper as noted below:
1) Documentation is not available to show that services totaling $91,773 had been negotiated. Per district personnel, prior to fiscal year 1990, documentation of negotiation processes is not available.
2) During fiscal year 1990, the district obtained information about various asbestos firms, and ranked these nine firms according to their qualifications. All contracts entered into were given to one of the nine firms; however, no documentation was maintained which specified why a particular firm was chosen for each project. We noted contracts of this type which totaled $50,833.
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3) Two contracts tested, totaling $14,894, did not include an approval signature on the payment approval form.
4) The original bids for one asbestos removal contract, totaling $24,650, could not be located.
Because adequate supporting documentation was not maintained, the district does not have assurance the best firm was selected. In addition, without proper approvals, the district cannot determine if the expenditure was proper. Therefore, we question the state's share of $182,150, or $91,075.
C. The Johns-Manville Company was a large manufacturer of building products during the time that most of the district schools were built. Some of these buildings products were found to contain asbestos. As a result of the Johns-Manville bankruptcy proceedings, a trust was established to pay specified amounts to all asbestos property damage claimants who submit claims within the required time limits. The district lawyers filed claims on fifty asbestos abatement projects, which included information on the type of material removed, and the cost incurred in the asbestos process.
The district was awarded $691,624 in damages from the Johns-Manville trust, of which $237,968 was received in April 1990, leaving a balance of $453,656 due. The $237,968 recovery payments have been credited to the Operating Account to cover the $93,005 in legal costs associated with the trust for fiscal year 1990, leaving a balance of $144,963. The original asbestos payments, however, were split 50/50 by the Desegregation Account and the Operating Account based on the court-ordered percentage.
The net of the recovery payment less legal fees, or $144,963, should be split between the Desegregation Fund and the Operating Fund based upon the court-ordered percentage of the original asbestos abatement payments. Therefore, we question the state's share of the balance of the Johns-Manville trust payment, less legal fees, or $72,482.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A. Apply for asbestos abatement grants and loans available through the EPA.
B .1. & 2. Maintain documentation to support the selection of asbestos firms for each
project.
3. Ensure proper approval is included prior to payment of invoices.
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4. Retain all bid documentation, including original bids, when selecting firms for asbestos removal.
C. Credit the state's portion of recovery payments from the Johns-Manville Trust to the Desegregation Fund.
AUDITEE'S RESPONSE
A. The district will investigate the available grants and does plan to apply for the EPA grants when the next application period occurs.
B.1. & 2. During fiscal year 1990, the district maintained documentation for the selection
of firms to be used. The district will maintain documentation on why particular firms were awarded specific projects.
3. These payment approvals were processed prior to the adoption of formal CIP payment procedures which require the approval of the payment initiator. These procedures went into effect in early fiscal year 1990, and payments are now approved by environmental services or the PMT.
4. Procedures were implemented in March 1990, to ensure that all original bids are retained by environmental services and filed with the appropriate project records.
C. The district's asbestos cost recovery efforts deal with more manufacturers and more legal and litigation support services costs than the Johns-Manville settlement. The district has been incurring legal and litigation support services costs since 1986 in connection with these efforts. At June 30, 1990, the total cost of these efforts exceeded $3 million and the only recovery received was the $237,968. While the cost of asbestos abatement was shared by the state, the district has funded all costs of the asbestos cost recovery effort from the district's Operating Fund. If total asbestos abatement cost recovery revenues exceed the total legal and litigation support services costs paid from the district's Operating Fund, the excess revenue will be credited to the state based on the same ratio as the abatement cost was paid.
5. Procurement Procedures
The district's purchasing guidelines are established by state law and board policy. Review of the district's bids and bidding procedures noted the following concerns:
A. Land appraisal and negotiation services totaling $112,397 were not properly documented. Documentation supporting how appraisal and negotiation companies were chosen could not be located.
According to Section 8.291, RSMo 1986,

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"1. The agency shall list three highly qualified firms. The agency shall then select the firm considered best qualified and capable of performing the desired work and negotiate a contract for the project with the firm selected.
2. For a basis for negotiations the agency shall prepare a written description of the scope of the proposed services."
"Agency" is defined to include political subdivisions such as school districts.
Because no documentation was retained, the district may not have obtained the best possible price; therefore, we question the state's portion, or $56,199.
B. District procedures require the buyer to contact a minimum of three suppliers for bids when the item to be purchased is under $5,000.
1) Bid documentation could not be located for ten of thirty-two (31 percent) items tested including chairs, file cabinets, televisions, video equipment and exercise equipment. Expenditures with no bid documentation totaled $239,386. We question the state's share of these expenditures, or $173,875.
2) The district obtained bids in fiscal year 1989 for new furniture to be used in the renovated schools. The costs of the furniture were paid during fiscal year 1990. Proper documentation was not maintained to explain why the lowest bid was not accepted for these items. If the district accepts a bid that is not the lowest, written documentation should be maintained showing the reasoning for accepting the higher bid. Total costs associated with these expenditures was $75,155. We question the state's share, or $37,578.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A. Properly negotiate all professional services and maintain documentation in accordance with state and district policies.
B. Properly bid all purchases and maintain documentation when accepting bids, especially when the lowest bid is not selected.
AUDI FEE'S RESPONSE
A. Fees paid for land appraisal and negotiation services were established three years ago and were based on market prices at that time. The district is still using these same rates. The district will maintain documentation on how particular jobs are assigned to approved firms.
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B.1. Bid documentation was not available on purchases made during the total period selected for review, due to the workload and limited time frame the Purchasing Department had to process documents. Since this audit, proper bidding documentation is being kept on all purchases, the time frames are sometimes short due to a lack of planning on the part of the requestor, and requests for an emergency purchase. The emergency purchase is only made if the proper documents are prepared and the procedures and policies are followed.
2. In reference to the documentation on bid awards, the bid tabulation sheets reference the recommended award for the lowest responsible and responsive bidder which is not always the lowest dollar amount.
AUDITOR'S COMMENT
The bid tabulation sheet for this particular purchase did not indicate that the lowest bidder was considered to be nonresponsive. There was no documentation available to indicate why other than the low bid was accepted.
6. Project Management Team
The KCMSD contracted with the PMT, a joint venture by two companies with construction expertise, to manage the capital improvements projects of the desegregation orders. The PMT also entered into separate contracts with two other firms to provide part of the professional services required. None of the four companies are allowed to participate directly in the construction projects.
During review of reimbursed PMT expenses, we noted the following:
A. Supporting documentation for one PMT companies' labor expenditures for fiscal year 1990 could not be located. The labor expenditures totalled $650,974. The KCMSD's standard policy requires supporting documentation before any expenditures are approved or authorized for payment, and that the documentation be retained to prove proper authorization.
The KCMSD stated they started requiring supporting documentation for labor charges from that PMT company starting June 1990.
Since no supporting documentation appears to exist for this expenditure, we are unable to determine the appropriateness of this charge to the desegregation program. Therefore, we question the state's share, or $325,487.
B. The court approved a position for the district for a Project Manager for Minority Business Enterprise/Women Business Enterprise Program (MBE/WBE). However, the PMT also has a MBE/WBE manager included in the fee the district paid for its services. In addition, this individual performed some duties for the capital improvements projects relating to accounting, administration, and analysis of CIP systems and processes„ as well as the approved MBE/WBE duties.
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As mentioned in our two prior reviews, this position appears duplicative; therefore, we question the state's share, or $23,397, of the $46,793 paid for salary and fringe benefits for this position.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A. Require supporting documentation for all PMT reimbursed expenditures.
B. Review the need for a duplicative MBE/WBE manager position since this function is part of the PMT's contract services.
AUDITEE'S RESPONSE
A. The district has received supporting documentation for labor expenditures from the company since June 1990. Documentation is required for all reimbursed expenditures of the PMT.
B. The district position of MBE/WBE is a position which was submitted to and approved by the court as part of the budget for implementation of the CIP. The court also approved the district's agreement with the PMT, including the provisions for direct PMT participation in encouraging and monitoring inclusion of MBE/WBE businesses in carrying out the CIP. The court and the DMC have been aware throughout the CIP implementation period that both the district oversight team and the PMT include specialists who have cooperated in development of implementation of an MBE/WBE program which has resulted in the KCMSD achieving more success. The state had ample opportunity to object to the position through filing with the court, and has not done so.
7. Magnet Transportation
During fiscal year 1990, transportation costs for the court-ordered Magnet Transportation Program exceeded $12 million. Our review of the various transportation costs noted the following concerns:
A. As part of the court-ordered Magnet Transportation Program, the KCMSD uses cabs to transport students for regular, temporary, or emergency routes. A review of cab billings noted the following concerns:
1) The cab companies submit invoices supported by vouchers to KCMSD Transportation Department (KCMSD-TD) for each cab route. Each voucher shows the student's name, address, assigned route number, and the mileage for the route. Cab vouchers are to be examined by the KCMSD-TD personnel to determine if the invoices are valid; however, the KCMSD-TD forwards the invoices for payment without verifying the routes charged to approved routes and examining mileage for reasonableness. For instance, we noted for three payments tested, the invoices did not support the payment made. While the KCMSD-TD personnel indicated the
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volume of invoices makes review of each invoice too time consuming, periodic reconciliation of invoices to approved routes would help verify the reasonableness of the charges.
This was also noted in our prior report.
2) Two cab companies have reached a settlement with KCMSD for overcharges totaling $222,381 for fiscal year 1989 cab services; the third cab company is currently in litigation. The overpayment by the KCMSD resulted from cab billings that were not for actual services rendered. The method of repayment by the cab companies involves lowering the current cab invoices by amounts specified in the court settlements. The KCMSD has not credited the desegregation draw reports for the state's portion of the total overcharge.
We question the state's portion of the cab company overcharges of $222,381, or $170,500, identified above. In addition, results of the settlement with the third cab company are being litigated currently. This settlement may reveal further questioned costs.
B. The KCMSD also contracts with bus companies to transport students. The bus companies are required to report the number of students transported each day so the KCMSD can properly report the transportation numbers to the Department of Elementary and Secondary Education on the Application for State Transportation Aid (ASTA) form. Review of the student transportation reports noted the following:
1) Daily, each bus driver counts the number of students transported. These daily counts are listed on bus route sheets that show the bus number, bus route, day, and school name. One month of activity will be included on each sheet for that bus. The school district's transportation personnel list the information on the monthly sheets according to categories such as traditional, magnet, suburban, special education, handicapped, early childhood, and deaf/blind.
Several problems were identified during a test of the bus route listing prepared by the KCMSD-TD. Many routes were listed but had no original documentation completed by the bus driver. Several route sheets did not appear on the listing, and some routes were listed twice. There were various errors in the transfer of information from the original documentation prepared by the bus drivers and the listing prepared by the KCMSD-TD.
The student totals of the listing prepared by the KCMSD-TD are used to complete the ASTA. Overstating or understating the number of students on the ASTA could result in the KCMSD receiving an incorrect amount of state transportation aid.

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1 ITIIMIP
2) The KCMSD-TD does not maintain documentation identifying the students who are eligible to be transported. No reconciliation can be performed between the KCMSD-TD eligibility records and the individual school listings of students who are transported to school.
The KCMSD should verify the validity of the numbers presented on the ASTA with district records. Section 163.161, RSMo Supp. 1990, indicates only certain types of programs are eligible for state aid. Improper information contained on the ASTA distorts the state aid that the KCMSD is eligible to receive.
These conditions were noted in our prior report.
WE RECOMMEND the district:
A.1. Review, recalculate, and reconcile the supporting documentation for each cab company invoice.
2. Credit the draw report for the state's portion of $170,500. In addition, the district should seek full reimbursement of the $222,381 owed to KCMSD and pursue any repayments from overcharges from other cab companies.
B .1. Accurately prepare the summary listing of all student counts that each bus driver sends to KCMSD-TD to ensure that student counts shown on the ASTA are correct.
2. Maintain a listing of eligible students with the corresponding buses, and reconcile the listing to the individual school listings maintained. Unusual fluctuations should be reviewed and reconciled to the student enrollment numbers and pupil attendance records.
AUDITEE'S RESPONSE
A.1. The volume of the documentation of cab invoices is enormous. This documentation consists of approximately 1,200 sheets of paper per week because it is submitted on a per cab basis. The manpower is not available to recompute the invoiced amount from the supporting documentation. There is only one technician available to process the cab billings and that individual also has other duties.
The district will try to determine a way to use the information that is now being input into the Edulog System to assist us in reviewing invoices for reasonableness without having to recalculate the entire bill. Information is now being input into the system on which students ride cabs, the zone they are coming from and going to, and the cab company assigned. Once all of this information is input, we may be able to check with the system to determine the maximum number of students we should be billed for each company for each zone for regular routes and use that information to compare to the weekly billings.
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Although the district understands the need to review these billings in detail, we do not have the resources necessary to review, recalculate, and reconcile the supporting documentation for each cab company invoice.
2. An adjustment is made each month to the drawdown report for the amount of the reduction in the current cab billing. The monthly adjustment method of payback was part of the legal settlement with the cab companies.
When setting up the procedure, a primary consideration was to account for this properly and accurately reflect expenditures. The relationship between mileage, ridership, and cost is important. Because the amount of the payback is material, showing the entire amount as a reduction in current expenditures would distort the costs by understating the cost of transportation.
B.1. The district has implemented new procedures and is utilizing the computer to compile, summarize, and analyze ridership data. In fiscal year 1990, it was a goal to improve the process of accumulating and reporting ridership data. Many hours were spent setting up procedures and training district staff to accurately and efficiently compile the data. In recognition that the transportation office was understaffed, the court approved the funding to hire additional staff. The department was then able to assign, on a full time basis, one individual to be responsible for collecting, summarizing and reporting ridership counts.
The district works with eight bus yards, and three cab companies counting over 850 buses running more than 2,000 routes carrying over 20,000 riders in order to compile the ridership counts. Along with meeting the ordinary DESE reporting requirements, the district must accumulate and track additional ridership data for the Court, DMC, and the State.
It is our understanding that when the auditors tested March ridership data, the sampling was based on 100 percent of the records. Every driver record was reviewed and compared with district reports used to prepare the ASTA. The auditors found that the district had counted and reported 360 more riders than we could document. Of the 360, approximately 125 impact the district's expenditure reimbursement. This is a margin of error of approximately .7 percent.
2. The district's route observers now use listings from the Edulog System to verify with drivers the students riding their bus. The observers also meet the busses upon arrival at the schools, on a test basis, to verify the students who are riding.
8. Expenditure Procedures
During our tests of program and capital improvement expenditures, we noted the following areas of concern:
A. Purchase orders totaling $184,667 could not be found. District procedures require a purchase order and requisition be completed for each purchase. Purchase orders and requisitions provide evidence of approval being obtained before purchases are made. The district could not find purchase
-29-

orders for five of thirty-nine (13 percent) items tested. We question the state's share of expenditures totaling $113,660 not questioned elsewhere in this report, or $56,830.
B. The district paid $154,778 for 200 benches with vises. The district, however, received only 164 benches. In addition, the benches received could not be traced to the fixed asset records, so we could not determine if they were properly used for the desegregation program.
By paying in advance, the district has limited assurance the items will be received. This expenditure has been charged to the Desegregation Account although it is not yet a valid cost. District procedures require evidence of receipt of goods prior to payment; however, this requirement was not followed.
We question the state's share of these expenditures, or $77,389.
C. Twelve of thirty-five (34 percent) applicable items tested, totaling $448,639, had purchase orders which were not signed and dated. Without a signature and date, it is impossible to tell if the items were properly authorized prior to being purchased and that the purchase order was prepared prior to the receipt of goods.
We question the state's share of $208,658 which has not been previously questioned in this report, or $152,017.
D. The district's fixed asset records did not include two lease-purchase agreements, totaling $1,729,932. Per district personnel, a fixed asset listing of lease-purchase items is maintained; however, this listing is approximately two years old, and has not been updated.
To ensure the accuracy of the district's fixed asset listing, adequate procedures and complete records are necessary to properly account for and control all fixed asset items purchased.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A. Ensure purchase orders are maintained to support purchases.
B. Discontinue the practice of paying for items which have not been received.
C. Ensure purchase orders are properly signed and dated prior to purchases being made.
D. Establish adequate procedures and records to ensure lease-purchase agreements are properly accounted for on the fixed asset listing.
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AUDITEE'S RESPONSE

A. The purchase orders that could not be found consisted of three from CIP and two from the purchasing department. The district is working to improve the filing and retention of CIP documentation. The two purchasing department purchase orders were payments on old purchase orders. One was a lease payment on equipment originally leased in January 1987, and the other was a payment on a purchase order for which the contract was issued in June of 1988. Because procedures for the filing and retention of records in the purchasing department were inadequate at the time these purchase orders were originally issued, they cannot be found.

B. The district agrees payments should not be made for items that have not been received. The district is working to resolve this discrepancy.

C. In past years, only the vendor copy of the purchase order was signed. At the recommendation of an audit finding, both the vendor and accounts payable copies are stamped with a signature to ensure an authorized purchase. Reference to the requesting requisition number is indicated on the purchase order as well as the name of the person providing the quotation and the person preparing the purchase order.

D. These items will be added to the district's fixed asset listing. The district is currently working on procedures to ensure lease-purchase assets are recorded properly on fixed asset records.

9. Budgets

A. In fiscal year 1990, the KCMSD overexpended the court-ordered budgets as follows:

Program

Amount

1990 (Year 5)

District Communications Teacher Salary

$ 17,368 830,496

Prior to January 3, 1989, if the KCMSD expended more monies than the court approved budget, the district either requested more monies for the budget or paid for these expenses out of the operating budget. After the January 3, 1989, court order the district changed the reporting format from showing each program's budget as compared to actual expenditures to reporting total expenditures. Procedures have not been established to ensure any expenditures over court-ordered budgets are excluded from reimbursements claimed by the district and paid by the state.

These excess expenditures are the liability of the KCMSD, and we question, the state's share, or $650,057.

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B. Differences exist between the budgeted amounts in the district's audited financial statements and its Budget Control Statements for fiscal year 1990. The budget amounts presented in the audited financial statements were those the district's independent auditors verified to court orders. Therefore, differences exist between the court approved budget and the district's internal budget documents. These differences are as follows:

Audit Report

$ Project Management Team
Capital Facility Planners Phase IV Phase IV-B
Phase V

13,485,814 10,785,111 58,779,259 59,253,303 36,262,967

District
11,106,893 10,705,560 58,765,314 60,932,305 36,976,832

Differences
2,378,921 79,551 13,945
(1,679,002) (713,865)

By having Budget Control Statements which do not agree with court-ordered budgets, the district has no controls established to ensure expenditures remain within the authorized limits.

C. The district has established Program 683-Long Range Capital-CIP Staging to account for moving expenses required due to asbestos work, and modifications of alternative sites used temporarily during current construction projects. The KCMSD is seeking 50 percent reimbursement for the Program 683 expenditures which totaled $223,266. As of February 1991, a court order has not yet been issued requiring the state to pay these costs. Even without approval, the district is charging these costs to the Desegregation Fund; therefore, we question the state's share, or $111,633.

WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:

A. Ensure excess expenditures are charged to the operating budget unless court approval has been obtained for the increased desegregation budget.

B. Reconcile its internal budget statements to court orders at least annually.

C. Discontinue the practice of claiming reimbursement from the state for expenditures that have not been approved as Desegregation Fund costs.

AUDITEE'S RESPONSE

A. The $17,368 spent for District Communications should have been charged to the communications line within the Long Range Magnet Program. There were sufficient funds in that budget to cover those expenditures.

On September 16, 1987, the court made available " . . . $7.147 million for each fiscal year through 1991-1992 to fund teacher salary increases . . . ." This amount was lowered by the court in a July 25, 1988, court order by $2 million. The

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reduction was an estimated amount. It was subsequently determined by the district that the reduction in the amount budgeted should have been only $1.3 million. Because of these differences, budget amounts for the teacher salary increases were presented to the DMC.
On April 4, 1991, the DMC ruled that the reduction ordered by the court was only an approximation and that the district's documentation of the actual cost should be accepted. The DMC approved a motion to reduce the budget by approximately $1.3 million rather than $2 million. They further recommended that the budget be adjusted and approved approximately $628,958. The remaining amount, $201,538 will be offset by credits due to the district such as late activity transportation.
B. The district is preparing to make the adjustments necessary to adjust our budgeted amounts to the court orders. We will also reconcile budgets to court orders for fiscal year 1991, before the year end.
C. Program 683 was established for the fiscal year 1991 staging budget, and has been approved by the DMC and the board. Upon advice of legal counsel, the district drew the reimbursement for staging expenditures from the state as the expenses were incurred. The program will be presented to the court for approval when final costs are obtained in the coming months.
10. Effective Schools
The Effective Schools Program ordered by the court is used to provide funds for items such as mastery learning, elementary counselors and home school liaisons, transition rooms, precollegiate curriculum, alternative secondary school units and arrangements, occupational and career education computer labs, and computer assisted and managed instruction. Decisions on how to spend these funds are determined by teachers, parents, community members, principals, and school advisory committees. The court approved Effective Schools Program budgets for the 1989-90, 1988-89, 1987-88, and 1986-1987 school years totaled $7,125,000, $6,680,000, $6,550,000, and $5,275,000 respectively. The orders provided $100,000 to $125,000 to each school with a minority enrollment exceeding 90 percent, while each of the remaining schools received $75,000 to $100,000.
A. For some schools, the Effective Schools Program budgets were exceeded as follows:

'1111111•11.111.Millw

-33-

unk. , 111"1.11.1.1.1111.1117.1111111.1111111111111111

Budget Year 1989-90 Year 5
Total 1989-90 1988-89 Year 4
Total 1988-89 1987-88 Year 3

School
Attucks C.A. Franklin James G. Melchor M.H. Weeks Southeast Junior
Border Star C.A. Franklin D.A. Holmes D.H. Korte H.C. Kumpf Moore Bingham Junior Southeast Junior Northeast Senior Van Horn Senior
Wheatley

Excess Expenditures During Fiscal
Year 1990

$

19,949

1,471

406

5,070

3,454

18,483

48,833

21,831 20,959
1,553 2,397 2,273 2,373 3,211
250 1,751 1,776
58,374

16

Grand Total

$

107,223

Because these expenditures made during fiscal year 1990 were in excess of the court-ordered amounts, we question the state's portion, or $82,208.

B. A majority of schools did not spend all of their Effective School's Program monies for the 1989-90 school year. While $7,125,000 was approved by the court, only $6,271,723 was spent by June 30, 1990, leaving 12 percent unspent. This includes twelve schools which have spent less than 75 percent of their budgets.

Although not spending all available funds may be commendable, such underspending may also reflect poor budget and planning procedures. The individual schools do not submit their final plans to the school board for approval until after the court has approved the district's effective schools budget request. A more effective budget procedure would be for the schools to fully develop and finalize their individual plans before the

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overall budget is submitted to the court for approval. Budget requests would then be only for the amount actually needed to implement the overall plan for the year.
C. Schools were still spending Effective Schools Program monies budgeted for the 1988-89 and 1987-88 school years during the year ended June 30, 1990. During fiscal year 1990, another $598,014 of fiscal year 1989 funds was used. During the years ended June 30, 1990 and 1989, another $411,110 of fiscal year 1988 funds were spent.
These situations indicate the individual effective schools plans are not adequately planned and cannot be accomplished and implemented in one year. At the end of the school year, every school should evaluate its plan, identifying reasons for significant budget variances. This evaluation should be documented. Underspent budget amounts should not simply be used in the next fiscal year. Instead, each year's plan should be separately budgeted so expenditures for each fiscal year can be more effectively planned, controlled, and evaluated.
D. One effective school payment, totaling $32,220, was made from a copy of the invoice, not the original invoice. All payments should be supported by original invoices. By paying from invoice copies, the district increases the risk of making duplicate payments. We question the state's share, or $24,703.
WE RECOMMEND the district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A-C. Develop specific guidelines for planning, using, and evaluating budgets for the Effective Schools Program.
D. Repay these desegregation charges from the Operating Fund and ensure only adequately supported expenditures are charged in the future.
AUDITEE'S RESPONSE
Beginning with the 1988-89 school year, the district provided substantial additional supervision and assistance at the central office level to help schools plan and monitor the expenditure of effective schools funds and school progress toward improved student achievement. The district implemented an even more detailed activity progress system for monitoring and evaluating the implementation of the school improvement plans for the 1989-90 school year. The system determines the progress of activities and the appropriateness of expenditures in greater detail than in the past. Those activities that reflect the most progress are continued into the next year's plan. Because of this approach, the schools are not implementing a "new" plan each school year, but have a plan that is a continuation and refinement of the long range objective of effective schools which is to raise test scores.

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slimellINIIIIIPPIPP"

t

-11ALT

1

The district believes that guidelines for planning, using, and evaluating the budgets are in place and that expenditure of effective schools monies should not be evaluated only on the basis of budget dollars used, but instead should be reviewed for their appropriateness and alignment with the prescribed instructional activities in the plans.
A. The excess expenditures cited by the state for the 1987-88, 1988-89, and 1989-90 school years are less than 1 percent of the effective schools budget per year. The district has implemented accounting controls and procedures to eliminate over expenditures in future years. For example, the district has implemented a position control system. This system will allow for more accurate accounting of all authorized positions and any associated vacancies in future years. Also, as of April 1991, the district requires all service agreements in excess of $5,000 to go through the encumbrance process, thus decreasing the possibility of over expenditures.
B. The state's report indicates that the majority of schools did not spend all of their Effective Schools Program monies for the 1989-90 school year. A comparison of the different Effective Schools Programs, at their respective year ends, shows each program year from June 30, 1987, to June 30, 1989, reflected between 20 and 23 percent unexpended at June 30. At June 30, 1990, the Year V program for effective schools reflected 12 percent of the budget was unexpended. If unexpended funds are a measure of program success, there was a measurable improvement during the 1989-90 school year.
The state's report makes note that twelve schools spent less than 75 percent of their budgets. Of those schools, two were open for the first time in the 1989-90 school year and their effective schools site plans were not approved until December 14, 1989, thus impending their ability to spend all funds available. This means that 61 (87 percent) of the schools expended greater than 75 percent of their budgets and 2 (3 percent) of the schools were impeded by late program approvals. By January 31, 1991, only nine schools had expended less than 75 percent of their Year V program money.
The effective schools budget and planning procedures are as prescribed by the court. The process calls for site based planning after the court has approved a requested dollar amount for each school, based on minority enrollment percentages. The procedure makes use of the most current student test information. The site plans for the next year are continually refined throughout the current year with an eye toward the current year's projected test scores. Once current year test scores are announced, the following year's site plans are finalized. If actual and anticipated test scores vary significantly, the site planning team revises the plan/budget accordingly. This procedure assures that the plans are based on the most current test information which is critical to the overall objective of the program which is to raise test scores.
C. There are always expenditures made after the end of each fiscal year. Encumbrances outstanding at June 30, do not become expenditures until after the end of the fiscal year. At June 30, 1990, 88 percent of the court approved funding for the year V program was expended.
-36-
-38-

of participants. This later reimbursement caused the excess in the Special Revenue PAT Program. In July 1990, the district's general ledger section began monitoring receipts related to the previous fiscal year. This allows us to detect revenues that are received after the year end and to make appropriate transfers. The district was aware this transfer needed to be made. In the future, we will try to make these adjustments in a more timely manner.
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FOLLOW-UP ON STATE AUDITOR'S PRIOR RECOMMENDATIONS

-inrvr""

1

Imrrir 1111111rE117 7 1 7 IT-

I
SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT
FOLLOW-UP ON STATE AUDITOR'S PRIOR RECOMMENDATIONS
This section reports follow-up action taken by the Kansas City, Missouri School District (KCMSD) on recommendations made in the Management Advisory Report (MAR) of our prior report issued for the year ended June 30, 1989. The prior recommendations which have not been implemented, but are considered significant, have been repeated in the current MAR. Although the remaining unimplemented recommendations have not been repeated, the KCMSD should consider implementing these recommendations.
1. Revenues
A. The district incorrectly allocated certain desegregation property taxes to the district's Operating Account. The allocation errors resulted in $5,202,675 due to the Desegregation Fund from the district's operating funds for the two years ended June 30, 1989. Since these amounts were due from operating funds to the Desegregation Fund, we questioned the state's payment of expenditures totaling $5,202,675.
B. The district's tax levy in tax year 1987 (fiscal year 1988) was established by the U. S. District Court. Levies in fiscal years 1989 and 1990 were set by the district and approved by the court. The state constitution and laws put certain limits on the levy the district can have for operating purposes. To determine compliance with the constitutional and statutory limits, the district was required to file certain information with the State Auditor's office annually to allow certification of its tax rate ceiling. The district did not provide the necessary information, instead simply filed a statement of the court-ordered or approved levy.
As a result, the desegregation and operating funds may not have received the proper amount of tax revenues and when the desegregation levy is no longer required, the district will not know its legal tax rate ceiling.
C. The district's tax rate was also limited by "Proposition C" which provided sales tax revenue to school districts in exchange for property tax reductions. The district was required to file certain information with the Department of Elementary and Secondary Education (DESE) which reviewed its Proposition C rollback for compliance with state law. According to DESE's review, in fiscal year 1989 a 40-cent rollback was required. Based on its 39-cent reduction, the district collected $342,627 in excess property tax revenues.
The district's assessed valuation increased sufficiently in fiscal year 1990 for the 39-cent levy rollback to recover the prior year's excess plus the current year's required reduction. However, without calculating the statutory rollback annually, the district could not know what the tax rate ceiling was for its operating funds.
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D. Manual check expenditures charged on the monthly report did not agree with the district's manual check registers.
Recommendation:
The district meet with representatives of the state to discuss the proprietary and allowability of the aforementioned items. Furthermore, the district should:
A. Establish procedures to consistently and properly allocate desegregation-related tax revenues received to the Desegregation Fund. The $5,202,675 previously credited to the district's Operating Fund should be transferred to the Desegregation Fund.
B&C. Annually file the required tax rate calculations and determine what portion of its levy can legally go to the operating funds and what portion remains for the Desegregation Fund.
D. Ensure all monthly expenditure reports are accurate, including the manual checks charged to desegregation programs.
Status:
A. Partially implemented. Allocation percentages appeared appropriate. Local railroad and utility taxes and interest on current and back taxes are now being allocated to the Desegregation Fund, and a transfer to the Desegregation Fund was made for a portion of the questioned local railroad and utility amount. However, state railroad and utility, payments in lieu of taxes, county stock and condemnation taxes were not allocated to the Desegregation Fund during fiscal year 1990. See MAR No. 1.
B&C. Partially implemented. Although no specific problems were noted with the Proposition C rollbacks, the annual filings were not made for tax rate determination. See MAR No. 2.
D. Implemented.
2. Capital Improvement Program Payments
A.1. The district entered into a contract for asbestos removal totaling $348,000. The contractor was allowed to begin construction before a performance bond was posted. In July 1988, the contract was terminated due to the contractor's failure to perform. Two other contractors completed the job at cost of $311,590. As a result of inadequate contractor performance, $89,590 more was paid for the job than was originally bid. Also, the delay in completing the asbestos removal resulted in an additional $13,875 being paid by the district to the general contractor. Excess payments in fiscal year 1989 totaled $103,465. We questioned the state's share of these costs, or $51,733.
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2. An asbestos payment totaling $15,603 did not appear reasonable. This cost was for additional asbestos work because of the original contractor's nonperformance. We questioned the states share of $15,603, or $7,802.
B. Each month, the Project Management Team (PMT) reconciled each vendor's cumulative payments in the invoice files to the cumulative payments charged on the General Ledger. For ten projects we reviewed, the differences identified by PMT were not corrected on the General Ledger. On the General Ledger three projects were overstated by $132,416. The district claims reimbursement from the state based on the General Ledger amounts. We questioned the state's portion of the overreported charges, or $66,208.
C.1. A general contractor incurred additional costs, overhead, and overtime because of substandard asbestos work at one school.
2. Five change orders totaling $9,012 resulted from architectural errors or omissions, or oversights by PMT personnel.
3. One $1,523 change order included additional work due to vandalism at a school. Any additional cost attributable to another party should not be paid by the state. As a result, we questioned the state's share of these costs, or $58,811.
D. In two instances, the district paid more for property than the appraised value. Apparently the $11,675 in additional costs resulted from negotiations which occurred much later than the appraisal dates. We questioned the state's share, or $5,838.
Recommendation:
The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A.1. Ensure the performance bond is posted before allowing any contractor to begin work.
2. Obtain reimbursement from the original contractor for additional costs due to nonperformance.
B. Correct the differences identified between the General Ledger and the invoice files.
C.1. & 2. Seek reimbursement from the applicable third parties and repay the
overclaimed expenditures.
3. Require costs incurred as the result of vandalism be appropriately charged to the district's insurance or operating funds.
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D. Make timely offers to property owners after obtaining property appraisals.
Status:
A.1.
C.3. No additional instances of noncompliance were noted during the current review.
A.2.
C.1. Partially implemented. A claim has been filed by the district against the original contractor's surety company.
B&D. Implemented.
C.2. Not implemented. The district has no plans to seek reimbursement. For a similar item, see MAR No. 3.
3. Bidding Procedures
A.1. Asbestos consulting services totaling $1,430,552 were not properly obtained. Documentation was not available to show these services were either bid or properly negotiated. We questioned the state's portion of these expenditures, or $715,276.
2. Bid documentation could not be located for nineteen of twenty-five items tested. We questioned the state's portion, or $343,000.
3. Land appraisal and negotiation services totaling $43,751 were not properly bid as required by district procedures. Documentation supporting how appraisal and negotiation rates were established could not be located. We questioned the state's paid portion, or $21,876.
4. The district did not retain supporting bid documentation on all three asbestos contracts tested, which totaled $401,986. We questioned the state's portion of $200,993.
5. Adequate documentation was not maintained for the negotiation process used to select architectural firms. Payments totaled $734,366, and we questioned the state's share of these costs, or $367,183.
B. Because of poor planning and poor communications between district officials and school site managers, the district used emergency contracts to move and store property of eight schools during renovations, asbestos abatement, or moves to new locations. We questioned the state's portion of $220,836, or $110,418.
C. The district obtained bids for new furniture to be used in the renovated schools. Proper documentation was not maintained to explain why the
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lowest bid was not accepted. Costs were not questioned since the expenditures were made in fiscal year 1990.

D.1. The district hired two non-Missouri asbestos consulting firms rather than Missouri firms. No documentation was maintained to justify the selection of non-Missouri firms. Expenditures totaled $58,270 to these firms.

2. The district paid $7,943 to a non-Missouri land appraiser and negotiating firm. Again, documentation was not maintained to justify the use of a non-Missouri firm. These costs were previously questioned in the report.

Recommendation:

The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:

A. Properly bid and negotiate all professional services and maintain bid documentation in accordance with state and district policies.

B. Obtain information from school districts far enough in advance to ensure that "emergency contract" status can be avoided for moving and storage contracts. This allows more time for competitive bids to be obtained from perspective vendors.

C. Maintain all documentation when accepting bids, especially when the lowest bid is not selected.

D. Contract with Missouri firms in accordance with Section 171.181, RSMo Supp. 1989.

Status:

A. Not implemented. See MAR Nos. 4 and 5.

B. Not implemented. See MAR No. 3.

C. Not implemented. See MAR No. 5.

D. Implemented.

4.

Project Management Team

A. Supporting documentation for a PMT expenditure of $206,434 could not be located. We questioned the state's share, or $115,314.

B. The court approved a position for the district for a Project Manager for Minority Business Enterprise/Women Business Enterprise Program (MBE/WBE). However, the PMT also had a MBE/WBE manager included in the fee the district paid for its services. This position appeared

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duplicative; therefore, we questioned the state's share, or $23,931 of the $47,862 paid for salary and fringe benefits for this position.

Recommendation:

The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:

A. Obtain complete documentation to support this expenditure. In addition, the district should ensure invoices, purchase orders, and related documents are retained and filed in an accessible manner.

B. Review the need for duplicative MBE/WBE manager position since this function is part of the PMT's contract services.

Status:

Not implemented. See MAR No. 6.

5. Magnet Transportation

A.1. Cab vouchers were to be examined by KCMSD Transportation Department (KCMSD-TD) personnel to determine if the invoices were valid; however, KCMSD-TD forwarded the invoices for payment without verifying the routes charged to approved routes and examining mileage for reasonableness.

2. Two taxi cab invoices were paid twice by KCMSD which caused a total overpayment of $4,070. We questioned the state's portion, or $2,274.

3. The district's attorney hired an independent accounting firm to review the taxi cab billings. The independent accountant's review revealed the following concerns:

-

Student pupil counts did not agree to the attendance records.

Inaccurate and inconsistent amounts were charged to KCMSD for

routes which had absent students.

-

Inconsistent mileage was charged to KCMSD for the same routes

on different days.

-

Mechanical errors were made in the calculations on the taxi cab

vouchers.

B.1. The KCMSD-TD did not properly review the pupil count summary sheets to ensure the student counts were properly classified. Improper classifications could have affected the formula that determined the amount of state transportation aid paid to the district.

2. For each bus, the bus companies prepared a summary sheet which showed the pupil count, ride time, and the number of miles traveled for each route during the semester. The district used the summary sheets to accumulate

41111•1111P'

-46'01411111111111111111.

mileage on the route approval forms which were the basis for mileage on the Application for State Transportation Aid (ASTA). Many discrepancies were found between the summary sheets and the route approval forms.
3. Review of the reported ride times and the miles traveled sometimes appeared unreasonable. It appeared that either the information on the route approval forms was inaccurate, or the bus driver were exceeding speed limits.
4. The number of students transported according to the pupil count summary sheets during fiscal year 1989 fluctuated greatly within each category. Without a listing of eligible students, the KCMSD-TD was unable to determine if the fluctuations in students transported were valid or if ineligible students were being transported.
Recommendation:
The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:
A.1. Review, recalculate, and reconcile the supporting documentation for the vouchers with the attendance records.
2. Compare the cab vouchers with the cab billings to ensure all expenditures relate to actual approved routes traveled and seek reimbursement for the duplicative payments of $4,070.
3. Pursue any overpayments from the cab companies and the state should receive a proportionate share of any funds recovered.
B.1. Recalculate pupil counts by category to ensure they can be traced to the ASTA.
2. Accurately prepare and reconcile the summary sheets, Route Approval Forms, and the ASTA.
3. Monitor the reported bus speeds to determine whether the miles driven in the time claimed are reasonable and safe.
4. Maintain a listing of eligible students with the corresponding buses, and reconcile the listing to the individual school listings maintained. Unusual fluctuations should be reviewed and reconciled to the student enrollment numbers and pupil attendance records.
Status:
A.1.& B.4. Not implemented. See MAR No. 7.
A.2,3,
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B.1, & 3. Implemented.
B.2. Partially implemented. The district currently prepares summary sheets; however, they are not always accurate. See MAR No. 7.
6. Expenditure Procedures
A.1. The original contract for one individual in the Teacher Tuition Reimbursement Program (TTAP) program, which authorized $5,000 in reimbursement, was not located. We questioned the state's portion, or $1,291.
2. One individual participating in the TTAP quit the program and was required by the contract to reimburse the KCMSD for any tuition related to incompleted courses. The district could not locate documentation of having received reimbursement due, totaling $298. We questioned the state's share, or $166.
B. Expenditures of $1,066,820 were made based on copies of invoices. We questioned the state's portion of the $4,111 not questioned elsewhere, or $2,296.
C. Supporting documentation of expenditures were not always found.
1) A firm billed the district an additional $4,998 due to a "price increase." Adequate supporting documentation was not attached. We questioned the state's portion, or $2,792.
2) Purchase orders were not found for seventeen of thirty-one items tested. These items totaled $360,293. We questioned, the state's share, or $197,810.
3) Canceled checks were not located for eight of seventy-four items tested which totaled $175,843. We questioned the state's share of expenditures not previously questioned, or $60.
D. The district did not always document whether expenditures which totaled $390,933 were properly approved. We questioned the state's share of the costs, or $197,655, which had not been questioned previously for other reasons.
E. Two of six items tested which totaled $53,800, had purchase orders which were signed, but not dated. We questioned the state's share, or $30,053.
F. Eight of ten fixed assets items could not be traced from purchase orders and invoices to the district's fixed asset records. Due to difficulty in locating tag numbers for the assets purchased, we were unable to physically locate the ten items. The total cost of the purchases was $14,900. We questioned the state's portion, or $8,323.
-48-
orir Ar4 H-gewrommpolipmremormimmom

G. The district paid $320,000 for 1,000 computer network interface cards. The district, however, received only 500 network interface cards, with the remaining 500 to be received in September 1990. The costs of which the state's share was '.:9,376, were previously questioned.

H. The district recruited several teachers from South America to teach in magnet schools. The district told these teachers no state or federal taxes would be withheld from their pay checks because the United States had a reciprocal tax treaty with their countries; however, it was discovered there was no reciprocal tax treaty with their countries. The checks, were drawn from the Desegregation Fund instead of the board-approved Operating Fund. When this error was brought to the attention of the district, a correcting journal voucher was issued in May 1990.

In addition, the district hired a tax firm to prepare the income tax forms for the teachers. The tax preparation fee of $3,465 was charged to the Desegregation Fund. After we made the district aware of the situation, a correcting journal voucher to adjust this expenditure to the Operating Fund was prepared in May 1990, and a credit was subsequently reflected in determining the state's share of expenditures.

I.

For five of seventeen travel expenses examined, supporting documentation

such as invoices, checks, and travel reconciliation, were not located. We

questioned the state's portion of $7,678, or $4,289.

Recommendation:

The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:

A.1. Maintain all supporting documentation pertaining to the TTAP. In addition, the district should seek reimbursement of $2,312 from the individual.

2. Seek reimbursement from the individual, or provide documentation that the amount has been paid.

B. Make payments based upon original invoices only.

C. Require adequate supporting documentation to support all purchases and retain canceled checks in a manner that allows later retrieval.

D. Require proper approval for all expenditures.

E. Ensure purchase orders are properly signed and dated prior to purchases being made.

F. Establish adequate procedures and records to ensure fixed assets are properly accounted for and controlled.

-49-
i,111.11

G. Discontinue the practice of paying for items which have not been received.
H. Ensure nondesegregation expenditures are charged to the Operating Fund in the future.
I. Retain all travel expense documentation.
Status:
A.1. & I. Implemented.
A.2. Implemented.
B. Not implemented. See MAR No. 10.
D,E, F&G. Not implemented. See MAR No. 8.
C. Partially implemented. Canceled checks were properly retained; however, other supporting documentation was not always retained. See MAR No. 8.
H. No such instances of noncompliance were noted during the current review.
7. Budgets
A. In fiscal year 1989, the KCMSD overexpended the court-ordered budgets for fiscal years 1989 and 1988. The excess expenditures of $961,357 were a liability of the KCMSD, and we questioned the state's share, or $537,014.
B. Differences existed between the budgeted amounts in the district's audited financial statements and its Budget Control Statements for fiscal year 1989. The budget amounts presented in the audited financial statements were those the district's independent auditors verified to court orders. Therefore, differences existed between the court approved budget and the district's internal budget documents.
C. The KCMSD was seeking 50 percent reimbursement for Program 672-Long-Range Capital CIP Staging expenditures which totaled $2,031,171 during fiscal year 1989; however, a court order had not yet been issued requiring the state to pay these costs. We questioned the state's share, or $1,015,586.
D. The KCMSD approved and made expenditures for fiscal year 1990 programs prior to July 1, 1989, the beginning of the fiscal year.
Recommendation:
-50-

The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should:

A. Ensure excess expenditures are charged to the operating budget unless court approval has been obtained for the increased desegregation budget.

B. Reconcile its internal budget statements to court orders at least annually.

C. Discontinue the practice of claiming reimbursement from the state for expenditures that have not been approved as Desegregation Fund costs.

D. Discontinue charging expenditures to the next fiscal year unless documentation is retained to support the validity of the charges.

Status:

A-C. Not implemented. See MAR No. 9.

D. Implemented.

8.

Cash and Investments

A. The district invested the state desegregation monies in repurchase agreements which were not in the name or control of the district or its independent agent.

B. The district obtained bids for its operating funds' investments, but bids were not solicited from brokerage firms before investing state desegregation monies in repurchase agreements.

Recommendation:

The district meet with representatives of the state to discuss the propriety of the aforementioned items.

Status:

Implemented.

9. Effective Schools

A. For some schools, the Effective Schools Program budgets were exceeded by a total of $35,196. Because these expenditures made during fiscal year 1989 were in excess of the court-ordered amounts, we questioned the state's portion, or $19,660.

B. A majority of schools did not spend all of their Effective Schools Program monies for the 1988-89 school year. This included twenty-seven schools which had spent less than 75 percent of their budgets.

-51-

Minim 4.4111111. co
C. Schools were spending Effective Schools Program monies budgeted for the 1987-88 and 1986-87 school years during the year ended June 30, 1989.
D. The district made several untimely payments on court-ordered 1986-87 fiscal year invoices. In addition, receipt of goods was not indicated on any of these six invoices, which totaled $8,637. We questioned the state's share, or $4,825.
Recommendation: The district meet with representatives of the state to discuss the propriety and allowability of the aforementioned items. Furthermore, the district should: A-C. Develop specific guidelines for planning, using, and evaluating budgets for
the Effective Schools Program. D. Repay these desegregation charges from the operating fund and ensure
only adequately supported expenditures are charged in the future. Status: A-C. Not implemented. See MAR No. 10. D. Not implemented. Although not repeated in the current report, the
KCMSD should consider implementing these recommendations. 10. Parents-As-Teachers Program
The KCMSD allocated the PAT Program expenses to the related desegregation program although $12,267 was available in the Special Revenue PAT Fund at June 30, 1989. As a result, the state paid for PAT expenses twice. We questioned the state's share, or $6,852. The district corrected the error in June 1990 after we brought it to their attention. Recommendation: The KCMSD should ensure that state reimbursements in the Special Revenue Fund are used to cover PAT expenses before charging expenses to the desegregation program. Status: Partially implemented. See MAR No. 12.
-52-

APPENDICES

Appendix A
SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT CUMULATIVE SCHEDULE OF BUDD.= AND ACTUAL DESEGREGATION EXPENDITURES THROUGH JUNE 30, 1990
UNAUDITED

Recorded Expenditures

Program

Budget

Prior Years

Year Ended June 30, 1990

Total

Year One (June 14, 1985,

court order):

Triple A achievement

$

Reduced class size

Summer school

Full day kindergarten

Before/after school

Early childhood

Effective schools

Magnet planning

Staff development

Public information

Capital improvements (1)

4,738,500 2,000,000
641,550 1,092,000
104,400 894,909 4,025,000
85,000 500,000
30,000 37,000,000

4,040,142 1,969,497
631,365 993,409
74,123 416,409 3,578,111
78,527 514,827
12,358 37,053,935

-0-0-0-0-0-0-0-0-0-015,797

4,040,142 1,969,497
631,365 993,409
74,123 416,409 3,578,111
78,527 514,827
12,358 37,069,732

Total Year One

51,111,359 49,362,703

15,797 49,378,500

Year Two (June 16, 1986, court order): Triple A achievement Reduced class size Summer school Full day kindergarten Before/after school Early childhood Effective schools 1986-87 Magnets Magnet transportation (2) Long-range magnets Public relations Capital improvements

8,790,697 4,000,000 1,196,000 1,594,496
104,400 1,551,786 5,275,000 12,972,727
-08,315,936
30,000 13,787,554

7,356,460 3,548,273
890,475 1,517,759
90,041 1,463,975 4,564,949 12,716,394 1,255,956 4,924,197
33,550 14,729,154

-0-0-0-0-0-0-0-0-0-0-0351,708

7,356,460 3,548,273
890,475 1,517,759
90,041 1,463,975 4,564,949 12,716,394 1,255,956 4,924,197
33,550 15,080,862

Total Year Two

57,618,596 53,091,183

351,708 53,442,891

Year Three (July 6, 1987, court order): Triple A achievement Reduced class size Summer school Full day kindergarten Before/after school Early childhood Effective schools 1986-87 Magnets Long-range magnets Magnet transportation (2) Public relations Desegregation monitoring committee (3) Relocation costs Retroactive salary increase (4) Interest cost Maintenance plan (5) Special education plan (5)

6,292,614 8,450,135 1,295,764 1,826,964
233,759 3,102,178 6,555,000 12,257,529 17,340,592 5,658,667
30,000
256,228 454,687
7,146,646 957,700
2,239,877 869,189

5,514,197 5,354,247 1,213,426 1,329,080
272,280 2,758,134 5,898,437 11,134,556 14,679,140 5,931,040
33,321
64,057 319,768
4,778,667 991,025
1,566,551 510,653

5,428 1,130
-050
-0(13,289) 36,823
2,915 41,234 (554,736)
101

5,519,625 5,355,377 1,213,426 1,329,130
272,280 2,744,845 5,935,260 11,137,471 14,720,374 5,376,304
33,422

-0-

64,057

-0-

319,768

-0-0102,206 -0-

4,778,667 991,025
1,668,757 510,653

Total Year Three

74,967,529 62,348,579

(378,138) 61,970,441

iar Four (July 25, 1988, court order):
Triple A achievement Reduced class size Summer school 1988 Full day kindergarten Before/after school

5,908,298

8,787,191

1,249,571

1,773,185

$

600,000

4,713,001 5,020,206
968,052 1,308,053
402,228

339,771 (33,935)
1,612 3,592 13,749

5,052,772 4,986,271
969,664 1,311,645
415,977

Questioned Costs

Prior Years

Year Ended June 30, 1990

Total

Allowable Expenditures

Allowable Expenditures (Over) Under
Budget

180,787 1,035,578
-0-0-0-01,048,496 -0-0-01,142,634
3,407,495

-0-

180,787

3,859,355

879,145

-0-

1,035,578

933,919

1,066,081

-0-

631,365

10,185

-0-

993,409

98,591

-0-

74,123

30,277

-0-

416,409

478,500

-0-

1,048,496

2,529,615

1,495,385

-0-

78,527

6,473

-0-

514,827

(14,827)

-0-

12,358

17,642

1,142,634 35,927,098

1,072,902

-0-

3,407,495 45,971,005

5,140,354

497,708 488,749
23,538 219,437
1,380 203,495 357,237 1,517,541 1,247,793 3,812,201
431 553,045
8,922,555

-0-

497,708

6,858,752

1,931,945

-0-

488,749

3,059,524

940,476

-0-

23,538

866,937

329,063

-0-

219,437

1,298,322

296,174

-0-

1,380

88,661

15,739

-0-

203,495

1,260,480

291,306

-0-

357,237

4,207,712

1,067,288

-0-

1,517,541 11,198,853

1,773,874

-0-

1,247,793

8,163

(8,163)

-0-

3,812,201

1,111,996

7,203,940

-0-

431

33,119

(3,119)

553,045 14,527,817

(740,263)

-0-

8,922,555 44,520,336 13,098,260

54,078 -0-
5,025 -0-
36,220 45,797 59,568 152,634 1,028,258 483,939
-0-
-0-0-
5,758,765 33,325 -0-0-
7,657,609

-0-0-0-0-0-0-
16 -0-0-0-0-
-0-0-
-0-052,354 -0-
52,370

54,078 -0-
5,025 -0-
36,220 45,797 59,584 152,634 1,028,258 483,939
-0-
-0-0-
5,758,765 33,325 52,354 -0-
7,709,979

5,465,547 5,355,377 1,208,401 1,329,130
236,060 2,699,048 5,875,676 10,984,837 13,692,116 4,892,365
33,422

827,067 3,094,758
87,363 497,834
(2,301) 403,130 679,324 1,272,692 3,648,476 766,302
(3,422)

64,057 319,768

192,171 134,919

(980,098) 957,700 1,616,403 510,653

8,126,744 -0-
623,474 358,536

54,260,462 20,707,067

-0-

-0-

-0-

5,052,772

855,526

-0-

-0-

-0-

4,986,271

3,800,920

-0-

-0-

-0-

969,664

279,907

-0-

-0-

-0-

1,31),645

461,540

189

-0-

189

415,788

184,212

-54-

Appendix A
SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT CUMULATIVE SCHEDULE OF BUDGETLI) AND ACTUAL DESEGREGATION EXPENDITURES THROUGH JUNE 30, 1990
UNAUDITED

Program

Budget

Year One (June 14, 1985,

court order):

Triple A achievement

$

Reduced class size

Summer school

Full day kindergarten

Before/after school

Early childhood

Effective schools

Magnet planning

Staff development

Public information

Capital improvements (1)

4,738,500 2,000,000
641,550 1,092,000
104,400 894,909 4,025,000 85,000 500,000
30,000 37,000,000

Total Year One

51,111,359

Year Two (June 16, 1986, court order): Triple A achievement Reduced class size Summer school Full day kindergarten Before/after school Early childhood Effective schools 1986-87 Magnets Magnet transportation (2) Long-range magnets Public relations Capital improvements

8,790,697 4,000,000 1,196,000 1,594,496
104,400 1,551,786 5,275,000 12,972,727
-08,315,936
30,000 13,787,554

Total Year Two

57,618,596

Year Three (July 6, 1987, court order): Triple A achievement Reduced class size Summer school Full day kindergarten Before/after school Early childhood Effective schools 1986-87 Magnets Long-range magnets Magnet transportation (2) Public relations Desegregation monitoring committee (3) Relocation costs Retroactive salary increase (4) Interest cost Maintenance plan (5) Special education plan (5)

6,292,614 8,450,135 1,295,764 1,826,964
233,759 3,102,178 6,555,000 12,257,529 17,340,592 5,658,667
30,000
256,228 454,687
7,146,646 957,700
2,239,877 869,189

Total Year Three

74,967,529

Year Four (July 25, 1988, court order): Triple A achievement Reduced class size Summer school 1988 Full day kindergarten Before/after school

5,908,298

8,787,191

1,249,571

1,773,185

$

600,000

Recorded Expenditures

Prior Years

Year Ended June 30,
1990

Total

4,040,142 1,969,497
631,365 993,409 74,123 416,409 3,578,111
78,527 514,827
12,358 37,053,935
49,362,703

-0-0-0-0-0-0-0-0-0-015,797
15,797

4,040,142 1,969,497
631,365 993,409
74,123 416,409 3,578,111
78,527 514,827
12,358 37,069,732
49,378,500

7,356,460 3,548,273
890,475 1,517,759
90,041 1,463,975 4,564,949 12,716,394 1,255,956 4,924,197
33,550 14,729,154
53,091,183

-0-0-0-0-0-0-0-0-0-0-0351,708
351,708

7,356,460 3,548,273
890,475 1,517,759
90,041 1,463,975 4,564,949 12,716,394 1,255,956 4,924,197
33,550 15,080,862
53,442,891

5,514,197 5,354,247 1,213,426 1,329,080
272,280 2,758,134 5,898,437 11,134,556 14,679,140 5,931,040
33,321
64,057 319,768
4,778,667 991,025
1,566,551 510,653
62,348,579

5,428 1,130
-050 -0(13,289) 36,823 2,915 41,234 (554,736) 101

5,519,625 5,355,377 1,213,426 1,329,130
272,280 2,744,845 5,935,260 11,137,471 14,720,374 5,376,304
33,422

-0-

64,057

-0-

319,768

-0-0102,206 -0-

4,778,667 991,025
1,668,757 510,653

(378,138) 61,970,441

4,713,001 5,020,206
968,052 1,308,053
402,228

339,771 (33,935)
1,612 3,592 13,749

5,052,772 4,986,271
969,664 1,311,645
415,977

Questioned Costs

Prior Years

Year Ended June 30,
1990

Total

Allowable Expenditures

Allowable Expenditures (Over) Under
Budget

180,787 1,035,578
-0-0-0-01,048,496 -0-0-01,142,634
3,407,495

-0-

180,787 3,859,355

879,145

-0- 1,035,578

933,919

1,066,081

-0-

631,365

10,185

-0-

993,409

98,591

-0-

74,123

30,277

-0-

416,409

478,500

-0-

1,048,496

2,529,615

1,495,385

-0-

78,527

6,473

-0-

514,827

(14,827)

-0-

12,358

17,642

1,142,634 35,927,098

1,072,902

-0- 3,407,495 45,971,005 5,140,354

497,708 488,749 23,538 219,437
1,380 203,495 357,237 1,517,541 1,247,793 3,812,201
431 553,045
8,922,555

-0-

497,708

6,858,752

1,931,945

-0-

488,749 3,059,524

940,476

-0-

23,538

866,937

329,063

-0-

219,437

1,298,322

296,174

-0-

1,380

88,661

15,739

-0-

203,495

1,260,480

291,306

-0-

357,237

4,207,712

1,067,288

-0-

1,517,541 11,198,853

1,773,874

-0-

1,247,793

8,163

(8,163)

-0-

3,812,201

1,111,996

7,203,940

-0-

431

33,119

(3,119)

553,045 14,527,817

(740,263)

-0- 8,922,555 44,520,336 13,098,260

54,078 -0-
5,025 -0-
36,220 45,797 59,568 152,634 1,028,258 483,939
-0-
-0-0-
5,758,765 33,325 -0-0-
7,657,609

-0-0-0-0-0-016 -0-0-0-0-
-0-0-
-0-052,354 -0-
52,370

54,078 -0-
5,025 -0-
36,220 45,797 59,584 152,634 1,028,258 483,939
-0-
-0-0-
5,758,765 33,325 52,354 -0-
7,709,979

5,465,547 5,355,377 1,208,401 1,329,130
236,060 2,699,048 5,875,676 10,984,837 13,692,116 4,892,365
33,422

827,067 3,094,758
87,363 497,834
(2,301) 403,130 679,324 1,272,692 3,648,476 766,302
(3,422)

64,057 319,768

192,171 134,919

(980,098) 957,700 1,616,403 510,653

8,126,744 -0-
623,474 358,536

54,260,462 20,707,067

-0-

-0-

-0- 5,052,772

855,526

-0-

-0-

-0- 4,986,271 3,800,920

-0-

-0-

-0-

969,664

279,907

-0-

-0-

-0-

1,311,645

461,540

189

-0-

189

41:,,788

184,212

-54-

Appendix A (Continued)
SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT. CUMULATIVE SCHEDULE OF BUDGETED AND ACTUAL DESEGREGATION EXPENDITURES THROUGH JUNE 30, 1990
UNAUDITED

Program

Budget

Recorded Expenditures

Prior Years

Year Ended June 30, 1990

Total

Questioned Costs

Prior Years

Year Ended June 30, 1990

Total

Allowable Expenditures

Allowable Expenditures (Over) Under
Budget

Year Six (June 26, 1990,

court order) (Continued):

1986-87 Magnets

$

Magnet transportation

Long-range magnets

Base budgets

Public relations

Research and development

Interest cost

Desegregation monitoring

committee (3)

Teachers salary

Debt service

Maintenance plan (5)

Special education

compliance (5)

Summer security (5)

Security-new initiative

Salary package

Voluntary interdistrict

transfer plan

15,694,833 -0-
41,992,484 14,867,645
31,125 5,414
788,068
104,164 5,147,646 14,921,978 2,239,877
869,189 124,580 170,531 32,000,000
22,934

-0-

504

504

-0-

-0-

-0-

-0-

-0-

-0-

6,415

6,415

-0-

-0-

1,437

1,437

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

(432)

(432)

-0-

-0-

-0-

-0-

-0-

-0-

(929)

(929)

-0-

-0-

(49)

(49)

-0-

-0-

(114)

(114)

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

Total Year Six

154,793,842

-0-

88,690

88,690

-0-

Magnet capital improvements (8)

386,487,383

45,078,841

-081,397,362 126,476,203

5,089,951

Total All Years

$ 952,556,127 293,758,235 183,266,921 477,025,156 27,649,333

-0-

-0-

504 15,694,329

-0-

-0-

-0-

-0-

-0-

-0-

6,415 41,986,069

-0-

-0-

1,437 14,866,208

-0-

-0-

-0-

31,125

-0-

-0-

-0-

5,414

-0-

-0-

-0-

788,068

-0-

-0-

-0-

104,164

-0-

-0-

(432) 5,148,078

-0-

-0-

-0- 14,921,978

-0-

-0-

(929) 2,240,806

-0-

-0-

(49)

869,238

-0-

-0-

(114)

124,694

-0-

-0-

-0-

170,531

-0-

-0-

-0- 32,000,000

-0-

-0-

-0-

22,934

-0-

-0-

88,690 154,705,152

2,078,995 4,506,179

7,168,946 119,307,257 267,180,126 32,155,512 444,869,644 507,686,483

(1) The U. S. District Court order on February 22, 1988, changed the state's share from 100 percent to 50 percent. The Kansas City Missouri School District (KCMSD) has received temporary funding relief from the state for $8,093,054 of the district's share of capital improvement expenditures which does not have to be repaid until the U. S. District Court orders the refund.
(2) An August 29, 1988, court order approved the entire Magnet Transportation cost for 1986-87 to be paid by the state and an incremental cost formula to be used for 1987-88 and future years.
(3) The district's share of these costs are paid directly to the Desegregation Monitoring Committee, not through KCMSD.
(4) This amount was not in the July 6, 1987, court order; however, later court rulings resulted in this being a Year Three cost paid fully by the state.
(5) 100 percent district funded.
(6) Questioned expenditures which do not relate to any one specific program.
(7) The court order dated November 1, 1990, agreed that the district owed the state for tax allocation errors in the amount of $1,474,762. We questioned $5,202,675 based upon our calculation of the taxes due. We have lowered the questioned costs by $3,727,913, or the difference between our calculation of tax allocation errors and the court approved amount. The court has suspended payment of the $1,474,762 to the state until the district has submitted a repayment plan.
(8) The court order dated January 10, 1991, approved 1988-89 and 1989-90 staging costs of $2,113,644; therefore, the questioned cost total has been reduced by this amount.

—56—

Appendix B
SPECIAL REVIEW OF DESEGREGATION PAYMENTS TO KANSAS CITY, MISSOURI SCHOOL DISTRICT CUMULATIVE ACTIVITY OF FUNDING FIVE YEARS ENDED JUNE 30, 1990
UNAUDITED

Fiscal Year

Recorded Expenditures

State Paid

Total

Questioned Costs
State Share

District Share

1986 $ 24,265,221

1987

49,412,579

1988

96,407,062

1989

123,673,373

1990 Total

183,266,921 477,025,156

12,769,196 36,714,920 64,107,617 77,957,889 29,422,048 (1) 118,300,546 339,272,216

2,968,562 1,643,925 15,704,673 7,332,173 (2)
4,506,179 32,155,512

2,643,607 1,560,710 11,682,555 4,519,610
2,900,420 23,306,902

324,955 83,215
4,022,118 2,812,563
1,605,759 8,848,610

(1) Refund of income tax surcharge (2) Reduced for subsequent court orders resolving questioned costs. See Appendix A.
* * * * *

 
 •
SCHOOL INTEGRATION PROGRAM for the
School Distict of Kansas City, _Missouri
•
App roved by the Board of Directors of The School District of Kansas City, Missouri
March 20, 1977

TABLE OF CONTENTS

Overview of the Plan

Factual Background .

•

••■•

r

1

Goals

Methods

Results Projected Burdens of the Plan

•••

..

7

.. 8

Practicalities of the Situation . . . . . . 8

The Plan As It Relates to Each High School Attendance Area

C entral

.

.

.

.

.

•

•••••

.

.

10

East . . . . . . • a ••■ • •• . . 11

Lincoln . . . . .

. . . • • . . 12

N ortheast . . • ••• ••• •• . : 13

P aseo . . . . . . . . . . . . . . 14

- Southeast . . . . . . • . • •• . . 15 .
S outhwest . •••• • ••••• . . 16

V an Horn

•••••• • ••■•• . . 17

West and Westport . . • . . . . . . . 18

Appendix

Composite map of plan . • ••••• . . 19

Map of Central High Area .

. . . . . . 20

Statistics relating to Central High Area . . . 21

Map of East High School Area .

. . 22

Statistics relating to East High School Area . 23

Map of Lincoln High School Area .

• . 24

Statistics relatifIg to Lincoln High School Area .

Mao of Northeast High School Area

. •• . 26

Statistics relating to Northeast High

School Area .

.•.

•

. 27

Map of Paseo High School Ada • . .

▪ . 28

Statistics relatin g to Paseo Hi g h School

Area

•

Ma p of Southeast Hi g h School Area . .

• . 30

Statistics relating to Southeast High School Area . . . . . . . . .

. 31

Map of Southwest High School Area

• . 32

Statistics relating to Southwest Hiah

Area .

.

.

•

•

.

33

Map of Van Horn High School Area

• . 34

Statistics relating to Van Horn High School Area . . . . . . . . . ▪ . 35

Ma p of West and West p ort High School Areas . . . . . • - • . . . . . 36

Statistics relating to Westport Hich School Area . . . . • . .

. . . 37

Table of projected integration results for

all schools .

•

. 39

Table of 1976-77 com posite enrollments and

racial percentages

. • .

• . 40

Table of projected composite integration

results . . .

.••.

. . 41

Table of 1976-77 integration . . . • . . . 42

Table relating to transportation .

. . . 43

I

Table showing distance changes resulting from chances in elementary feeder school patterns • . • .

. 44

Certified copy of Resolution of December 2, 1975 .

. •.

• . 45

Certified copy of Board Action

of March 20, 1977 . . . .

.

• 46

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In 1955, the District converted totally to assignment on the basis of nei g hborhood residential zones. All extracurricular activities, the junior college, the vocational school, the faculty and PTA were inte g rated. Three former black schools which were im p roperly located for use in a unitary system were closed. Two years later, a former white school was closed for the same reason.
Because Kansas City has been and remains a city which is highly segregated residentially, ..he level of integration achieved through nei g hborhood zone assi g nment has never a pproached racial balancing in most schools of the District. The Pattern has been, as in most urban school districts, that schools in black residential areas remained almost all black, while schools on the frin g es of the black residential areas became integrated and then rese gre g ated as the neighborhoods became black.
Busina for Overcrowding
The Kansas City District has made efforts subse quent to 1955 to improve inte g ration in the District. From the midsixties continuing on to the present, a few schools in the District have been overcrowded. The District has maintained a policy of busin g children from overcrowded schools in a manner which improves inte g ration. In recent years, with declining enrollment, there has been little busing for this purpose but the policy has been continued.
It is the Polic y of the Board of Directors that any busin g for overcrowding shall, if administrativel y feasible, be carried out in a manner which improves integration.
Inte g ration of Faculty and Administration
The District has also taken steps to fully integrate its faculty and administrative staff. Efforts along this line were carried out through the 1960's, and in 1973 the District took steps to reassign teachers in such a manner as to racially balance the teaching staff in each school of the District. The following year, administrative reorganization was carried out for the purpose of achieving better racial balance in building administration and better racial representation in the central office administrative structure. The District is p resently well-integrated as to faculty and administrative staff.
It is the polic y of the Board of Directors that the inte g ration of faculty and administration shall continue under the present plan.

Op tional Zones
Historically, including the dual system period prior to 1955, the Kansas City District has utilized a number of "optional zones" within the assignment pattern. Generally, the zones were developed because a certain number of parents in an area p referred to send their children to a school other than the one to which they were assigned on the basis .of residence. In some cases, the zones were established specifically as an aid to integrating more black students into predominately white schools. 'However, on the basis of statistics which indicate that in general o p tional zones tend to ne g atively effect integration, the District has, beginning in 1973, taken steps to eliminate all optional zones which offer the potential of inhibiting integration.
It is the Polic y of the Board of Directors that all o p tional zones in the District are aDolisned, exce p t as s p ecified in the Inte g ration Program.
Transfer Policy
_ .
Under the pre-1955 dual s y stem and until 1973, students
in the District were allowed to obtain transfers to another
school for valid reasons, so long as ca p acity permitted. In 1973, the District rescinded this policy, and prohibited transfer of an y student from a school in which his race was in the minority to a school in which his race was in the majority, with certain s p ecified exceptions.
In 1976, the .policy was further modified, to provide that transfers inhibiting integration would be allowed only under exce ptional circumstances related to education, and that transfer of a student from a school in which his race was in the majority to one in which his race in the minority would be permitted, with free transportation provided.
The present policy of the Board of Directors is that transfers which would have a neaative effect on integration will be denied except in a case of exce p tional circumstances relatin g_ to the educational well-being of the student or in unusual cases involving family problems. Exceptions as listed will be granted only after individual review of the Student Transfer Review Board, according to presently established procedures.
_Building Location and Utilization
School buildings in the Kansas City District have traditionally been located according to a neighborhood school pattern. At the elementary level, buildings were
located approximately 1 1/2 miles apart unless an area was

so heavily populated that schools needed to be closer to g ether at the elementary level in order to avoid exceeding an u pp er limit of serving 75D children, or farther apart in areas so s parsely populated that _buildin g s could nct be - located 1 1/2 miles apart and maintain ade q uate enrollmz t.
Schools which, because of the past dual system, were not located according to this basic p lan, have been closed or are now utilized for 'different. Pur poses. Buildings which {-were a cart of the dual s y stem and were not consistent with the pattern for a unitary s y stemha y e been closed. These were Penn, Wheatly, Bruce and Dun :Dar, former black schools, and Lowell and Leeds, former white schools.
There has been no new school construction in the District since 1968, and shifting population Patterns have resulted in under-utilization of a number of buildings, while a few remain overcrowded.
One elementary school, Mark Twain, a former white school which had become Predominately minority, was destroyed by fire during the 1975-76 school y ear and has not been rebuilt. Students from that area have, since the date of the fire, been reassianed to schools where the assignment improves racial balance.
One hiuh school attendance area, the Manual area, has been without a hich school building for nearly ten Years, since the former Manual buildin g was razed to allow construction of the new Vocational-Technical School. Elections to authorize bonds for a new Northwest Hi g h School failed to gain the reuuired Po p ular vote three times. In the interim, the Manual Hich School students were trans ported to the former Junior Colle g e building across fromWest port High School. Under the p lan described herein, the-Manual students will be absorbed into other attendance areas.
The present polic y of the Board of Directors anticipates no additional building ccnstruction in the immediate future. In case of an y school closinas resultin g from under-utilization of facilities cr. other causes, reassi g nment of students will be carried out in a manner which will not impede integration, and, where possible, will im p rove racial balance.
Feeder Patterns and Grade Structures
Historically, the Kansas City District has operated on a system of var y ing grade structures in different attendance areas of the District. Elementary Schools more distant from junior high schools have traditionally included kindergarten through Grade seven, while those closer have included kingergarten through grade six. _In one case, Korte-North Rock Creek, the schools-were structured on a K-3 and 4-6 basis. High schools varied from the grade 8 through 12 structure of West High

School to the 10-12 structure at Paseo Hi g h School. In addition, historically junior high attendance areas have bisected elementary areas, and high school attendance areas have bisected junior hich -areas.
It is the polic y of the District that to the maximum extent feasible, elementar y school areas shall be structured on a K-6 basis; junior hich shall include g rades 7, and 8, and hich schools shall serve grades 9, 10, 11 and 12. It is further the polic y that feeder p attern: shall he established in a manner which, to the maximu:1; extent administratively feasible and educationall y sound, will further integration.
Eaual Educational OPportunitv
HEW has alle g ed that the District offers inferior .educational o pportunity to students in p redominately minority schools, in that these schools allegedly offer fewer courses at the secondary level, and are alle g edly assigned less experienced, less qualified and lower-paid facult y . The Hearing Officer who presided over the Title VI hearing a g reed with the District that the evidence failed to prove these contentions. -
The Board of Directors of the Kansas City School District believes it would be contrary to sound educational policy to en g a g e in numerical balancing of course offerin g s and to restrict teacher assignment arbitrarily in order to achieve statistical parity which may in fact be meaningless.
However, the District has always sought and continues to seek to provide fully equitable educational services to every student in the District. Consistent with . this view, the District has offered and continues to offer to cooperate in an evaluative effort by objective p rofessional educators, and to take steps to correct any inequities noted through such a study. On December 2, 1976, the District instructed its attorneys, by Resolution, to enter into an agreement with HEW for such an evaluation. The Board stands by this offer. (See certified co py of Board Resolution contained in Appendix.)
Goals of the Integration Proaram
As indicated in the previous section, steps taken in the Kansas City District to desegregate the schools through neighborhood assignment zones and a voluntary majority-tominority transfer policy have, because of the high degree of residential segregation in Kansas City, failed to achieve a high degree of racial balance in.the schools of the District. In the 1976-77 school year, only 20% of elementary students, 45% of junior high students and 31% of senior high students

were attending schools in which the enrollment was from 30
to 80% minority.
The primary goal of the integration program to be imolemented for the 1977-78 school year is to achieve the hichest level of meaningful integration which promises realistically to work for this community.
In furtherance of this primary goal, the plan assigns students to the school nearest their place of residence which is at present offering their . appropriate grade level of study, except in areas in which careful study indicates that a significant im p rovement in racial balance Could be made through clustering, pairing, boundary changes, non- conricuous assi g nment zones, or feeder school realignments, and there ap p ears to be a reasonable degree of community acceptance of the changes.
Met:hods
In order to gain community in p ut for the integration program, the District established a Community Task Force made up of re p resentatives of school areas and community organizations in the District. The Task Force engaged in concentrated effort for a p eriod of almost a year, eventually forwarding its su gg estions to the School Board. The plan which was a pp roved by the Board and is presented herein is - based on suocestions from the Task Force, with modifications develo p ed throu g h community meetings held in each of the District's sub-district's subsecuent to initial formulation of the plan, initially designated as "Plan 6-C."
The Community Task Force continues to o p erate, funded by the District, for the pur pose of p roviding input as to su gg estions for educational im p rovement, implementation of the plan, and gaining community acceptance.
'The Plan in General
The . primary method utilized in the plan adopted is to reduce racial isolation through enlarging the attendance areas of predominately non-minority secondary schools by incorporating areas from adjoining predominately minority high school attendance areas. The newly incorporated elementary school areas were then grouped with non-minority elementary schools in the enlarged secondary school attendance area, with a two-way reassignment of students to improve racial balance in each . of the schools in the group. The boundary adjustments and student reassignments are to be implemented at the beginning of the 1977-78 school year.

School Closings

Three presently operating elementary schools, Nichols, Norman and Rollins,. are parmanentlyJclosed in the plan.

Three additional schools are closed and converted to another use. Manual High School is closed and- the building utilized as Westport Junior High, serving grades 7, 8 and 9
for the West and Westport High Schools. Ashland Elementary School is closed to become a junior high school for the East Hi g h School area. Harrison,Elementary School is closed to become a seventh grade center for the Van Horn attendance area.

Statistical Proiections

In develo p ing the p lan and in projecting results, student census tract information was gathered and utilized to determine the projected number of resident students in
each attendance area. Because Special Education students
are assi g ned to classes on the basis of special educational needs rather than by neighborhood assignment, special education students were not included in enrollment projections:—

Kinder g arten students are not included in the integration Program, and are therefore not included in the projections.

• Results Projected

In 1976-77, when - inte g ration in the District was accomplished

only through traditional neighborhood attendance zones, a

limited amount of busing for integration'and voluntary

transfers, 20 of the District's schools were from 30 to 80%

minority ., 23 were less than 30% minority, and 41 were more

than 80% minority. CSee App endix, p.

)

Of the 30,724 minority students in the District, only
6,636, around 22%, attended schools which were less than 80% minority, while 24,088 (78%) attended schools 80% or more minority.

After implementation of the integration program, it is
-projected that 51 schools will be in the 30 to 80% minority
range, no schools will be less than 30% minority, and 30 will be more than 80% minority.

Of the . 29,202 projected minority student enrollment, 11,933, or 41%, will be enrolled in schools of between 30 to 80% minority, while 17,269, or 59% will be enrolled in schools more than 80% -minority.-

More than 99% of the 14,633 non-minority students in the Di-strict will be in schools from 30 to 80% minority.

Burdens of the Plan
Although the Kansas City School District is 67% minority and 33% non-minority, 53% of all elementary students reassigned under the integration programs will be non-minority. Thus non-minorities will bear a significantly greater proportional burden than minorities.
At the secondary school level, the only burden of any significance will be the additional distance which Melcher and Seven Oak students will be feauired to travel in order to attend Van Horn rather than Central secondary schools. - This is balanced by the fact that Manual students will now be closer to their secondary schools.
As to school closin g s, the "burdens" are also eauitahle. Ashland -was 33% minorit y in 1976-77, Nichols 63% minority, Norman-47%, Rol l ins 54%, and Manual 99%.
Practicalities of the Situation
The schools in the District which would remain more than 80% minority are located within heavily minority, densely populated areas. As mentioned previously, Kansas City is a residentially se g re g ated city, with the minority residential areas located within KCSD. -
Studies by the Community Task Force and consultants indicate that the de facto school segregation resulting from the residential Patterns in Kansas City could not be resolved other than throu g h trans porting students to schools other than the schools nearest their homes. Because of this a number of schools remain dis p roportionately minority, even after implementation of the integration program. It is the opinion of legal counsel for-the District that none of these schools are "vesti g es" of the past dual system, because the present racial enrollment of the schools did not result from the past dual system, ror of any intentionally segregatory acts of the District.
-- It is - further'the belief of the Board that the actions
taken offer the maximum possible opportunity for providin g a meaningful level of integration for the greatest possible number of minority students under conditions which have some promise of realistically working.
Some of the practicalities of the situation in which the District finds itself in attempting to achieve . meaningful integration are as follows:
Because the District is 67% minority, it cannot eliminate racial-isolation (as defined by Congress in 20 U.S.C. §1619) from all schools within the District.

The District's financial resources are limited. A

provision of the Missouri Constitution limits tax levies in

excess of $1.25 per $100 assessed valuation to a majority

vote of the electorate, and levies in excess of $3.75 per

$100 assessed valuation reauire a 2/3 vote of the electorate.

All bond issues re q uire a 2/3 favorable vote. All ,bond

issues since 1965 and all levy elections since 1967 seeking

more than $3.75 have been defeated. The District has sorely

needed adequate long term financing to maintain and increase

the quality of its pro g rams, but has to date been unsuccessful

in obtaining same.

•

-Cormunity su pport for financing education depends in large part u p on the Quality of education provided, and any additional integration must maintain or increase educational quality rather than reduce it.

_ Minority enrollment has increased in the District every year for the last 21 years. It shows no sins of stopping. A workable plan must seek to maintain intecration as well as imp rove it. A plan which fosters reseureuation cannot be an accep table plan under the Constitution. The District believes this plan will not only increase integration in some areas,
but maintain it in others. It believes further racial --
balancing would increase researeaation, and would not promise
realistically to work on an immediate or long-term basis.

THE PLAN AS IT RELATES TO EACH HIGH SCHOOL ATTENDANCE AREA
Central Hi gh School Attendance Area
The effects of the KCSD p lan upon Central Hi g h School and its feeder schools can be seen in Fi g ure 2 and Table 1. The most imp ortant of these effects are as follows:
1. Racial isolation in the former Central Hi g h School - area is reduced as tile result of rezoning a.significant portion of the 1976-77 Central attendance area Welcher, Seven Oaks, Moore, and the southern half of Greenwood Elementary Schools) to desegregated schools and making boundary adlustments to eliminate Past bisecting of elementary school attendance areas by secondary school boundaries and a change _to uniform g rade structures.
2. Racial isolation in the former Central Hi g h elementary schools is reduced throu gh clustering of Greenwood,
Manchester and McCoy schools, pairing of Moore and Askew, Seven Oaks and Su g ar Creek and Keleher and Bristol, plus additional r assi g nment of Meicher students to West Rock Creek and Mount Washington.
3. The boundaries of Central Hich and Central Junior High become coterminus and enrollments are lowered sharp ly. Central Hi g h would have an enrollment of 1,382 compared with 1,783 in the 1976-77 school year and well over 2,000 in p receding years. This lowered enrollment eliminates what have been considered crowded conditions at Central and provides necessary space for the develo pment:of a planned career-oriented . magnet center at Central High School.

. East Hi g h School Attendance Area
The East High School area of the KCSD p lan is shown in Figure 3 and Table 2. The following points relating to the East area are noted:
1. The East.High School attendance area is enlarged to incorporate two elementary school attendance areas with predominantly minority enrollments (Greenwood, 94% minority and Moore, 90% minority).
2. Additional East Hi g h boundary adjustments are made to eliminate the historical bisecting of elementary school attendance areas. In this regard the northern Portions (north- of 12th Street) of the McCoy and Manchester Elementary zones are added to the East area and the southern portion of Whittier is removed from the East zone. Further, the extreme southern p ortion of the foiffier Leeds Elementary attendance :zone (industrial area) is rezoned from the East to the Van Horn area.
3. The ei g hth grade is removed from East High and placed in a junior high established in the former Ashland Elementary School. The East High enrollment would then be com p rised of grades 9-12, 53% minority group.
4. The former Yeager attendance area becomes part of the Kensington attendance area exce p t for the northwestern corner, including the Attucks East Housing Develo pment, which is zoned to the Attucks Elementary School attendance area. The Leeds and Dunbar trans port zones established as part of the District's foLmer ESAA p roject are continued. Further, the Ashland Elementary School attendance area is rezoned to Askew, Greenwood, and Kensington.
5. There are two clusterings of elementary school attendance areas with grade level specialization of schools within each grouping. For example, within the grou p ing of Greenwood, Manchester and McCoy Elementary Schools, Greenwood, Manchester. and McCoy Elementary Schools, Greenwood serves grades 4-6 for the three schools. Greenwood
- students, grades 1-3, are reassigned to Manchester and McCoy which serve g rades 1-3 only for the three-school grouping.. Racial isolation in the East area elementary schools is eliminated with enrollments of-44% minority on the average.

Lincoln Hi g h School Attendance Area
Fi g ure 4 and Table 3 show how the p lan would relate to the, Lincoln High School area. The following points are noted.
1. Racial isolation in the former Lincoln High-School area is reduced through rezoning p arts of the Greenwood, Longfellow, Switizer and Yeager Elementary School attendance areas to desegregated highschools.
2. Racial isolation in the elementary schools of the rezoned areas is reduced through pairings with schools in the new attendance areas.
3- The northern p art of the Attucks Elementary attendance - area, formerly in the Manual attendance area, is
• rezoned to Lincoln. Other minor adjustments in the Lincoln High boundary are made to eliminate the bisecting of elementary school attendance areas.
4. Lincoln High School and Lincoln Junior High School attendance area boundaries are made coterminus.
5. The relatively low enrollments at Lincoln Hi gh and Lincoln Junior Hich make it Possible to establish one or more ma g net centers at Lincoln. A health services career oriented magnet and a math/science magnet are under consideration for Lincoln. The proximity of Lincoln and hospital hill is an important factor in this p reliminary thinking.

Northeast High School Attendance Area
The effects of the KCSD plan u pon Central Hi g h School and its feeder schools can be seen in Fi g ure 5 and Table 4. The most important of these effects are as follows:
1. The Northeast Hi g h School attendance area is enlarged to incorporate the major part of the former Manual High School attendance area including the B.anneker, Karnes, Woodland and Yates Elementary School attendance areas. Additional boundary adjustments of Northeast High annex the southern part of Whittier and eliminate the northern parts of the Manchester and McCoy Elementary School attendance areas. The enrollment of Northeast High is p rojected at 44% minority.
2. The Northeast Junior High attendance area boundaries are coterminus - with the Northeast Hi g h boundaries and have a projected enrollment of approximately 41% minority.
3. _There are three clusterin g_ s of elementary schools within the Northeast Hi g h area with grade level specialization within each group which achieve a high degree of racial balance in all of the elementary
. schools in this area. The p rojected enrollments of the schools in the three g rou p in g s are 41% minority on the average. Grade level specialization of schools within each group is based on the features of each building which make it appropriate for the grade levels it serves. For example, Karnes and Yates, formerly with predominantly minority enrollments, serve grades 5-6 because these are the schools having industrial arts and home making facilities which are more useful in the educational programs of upper elementary grade students.
_:4. Garfield continues its present grade structure and • enrollment, which includes those students from the former Martin and Banneker attendance areas.

Paseo Hi g h School Attendance Area
The relationship of the KCSD plan to the Paseo High
School area is shown in detail in Figure 6 and Table 5. Some important points are as follows:
1. Racial isolation in the former Paseo High School attendance area is decreased through rezoning of the western portion of the area to desegregated high schools as shown in Figure 6.
2. Portions of the Graceland, Meservey and Weeks Elementar y School attendance areas are annexed to the eastern and southern portions of the Paseo High attendance zone to eliminate the former bisecting of these elementary school attendance areas.
3. The King Junior High boundaries become co-terminus with the Paseo High boundaries, for the first time giving the Paseo area a junior high school. Seventh g rades are removed from all Paseo area elementary schools and reassigned to King Junior High.
4. Consideration is being given to the placement of a -magnet center at Paseo Hi g h in the 1978-79 school year, ca p italizing on the p roximity of Paseo High to the University of Missouri-Kansas City and other cultural centers in the community.

. Southeast High School Attendance Area

The effects of the KCSD plan upon the Southeast High School area are detailed in Figure 7 and Table 6. A summary of the most significant of these effects are as follows:

1. Racial isolation in the former Southeast High School attendance area is reduced, throu g h rezoning parts of the former Southeast attendance area to southwest.

2. Marlborough Elementary School, formerly partially
in the Southeast zone, is further integrated
through clustering with Cook and Hartman Schools.

3. Students from the former Mark Twain School area

are integrated through rezoning to elementary

- schools in the southern part of the Van Horn High

School area. These students have the o p tion of

attending secondary schools.in the. Van Horn_area,

or of returning to Southeast._

-

4. The Southeast Hi g h and Southeast Junior-High School boundaries become coterminus.

5. The northwestern portion of the Pershing Elementary attendance area is rezoned to Southwest area elementary schools because of crowding at Pershing. This is a continuation of a past practice. Secondary
school age students living in this Pershing transport zone are given the option of attending either -Southwest or Southeast area secondary schools.

Southwest Hiuh School Attendance Area
Details of the KCSD desegregation plan relating to the Southwest High School area are presented in Figure 8 and Table 7. These details are summarized as follows:
-1. -The Southwest-Hi g h School attendance area is enlarged to 'incor porate areas with predominantly minority enrollments (Marlborough, Nelson, ancl Troost Elementary School attendance areas) from adjoining high school attendance areas.
2. The above boundary changes plus the removal of the southern one-half of the Swinney F i lamentary zone from the Southwest area eliminates the bisecting of elementary attendance areas and makes the Southwest High and Bingham Junior boundaries coterminus.
3. Nichols Elementary School is closed and the Nichols attendance area is consolidated with that of Cook.
4. The Cook, Harman, -and Marlborough Elementar y - - School are g rouped, with each school servin g two grade levels J from the three school area. Each of the schools serves the g rade levels most appropriate for its facilities and design.
5. _Students from the Pershin g and Willard Elementary Schools attendance areas continue to be rezoned to Southwest area elementary schools because of crowding at the former two schools. However, the pattern of this rezoning is altered, with all of_ the students rezoned from Pershing g oing to the Cook, Hartman and Marlborough grouping. Those students rezoned from the Willard area go to .either Border Star or Bryant. In the past, students from the Pershing and Willard transport zones attended their home schools at the secondary • school level. In the KCSD plan these students are given the option of attending their home secondary schools or southwest area secondary schools.
6. All schools in the Southwest area are projected to have enrollments of from 42% to 53% minority with the exception of Troost Elementary School. Troost, .the only school in the Southwest area
_receiving ESEA Title I services, is projected to have an enrollment of 94% minority. Secondary school students living in the Troost Elementary attendance area would attend desegregated Bingham
_ Junior High and Southwest High Schools.

Van Horn Hich. School Attendance Area

The effects of the 1=13 desegretation-plan upon the Van Horn High School area schools are presented in Figure 9 and
Table 8. The major effects to be noted with regard to the Van Horn area are as follows:

1. The Van Horn High School attendance area is enlarged to include two elementary school attendance areas, Melcher and Seven Oaks, from the former Central Hi g h School attendance area plus an industrial
area (formerly in the Leeds Elementary area)
connecting these two schools with the fol_iller Van Horn area.

2. .All seventh grades are removed from elementary schools in the Van Horn area and p laced in two seventh grade centers converted from Harrison and Fairview Elementary Schools.

3. Nowlin Junior Hi gh continues to-servearades 8-9

and Van Horn Hi g h School continues to serve grades

10-12. The enrollments of the Van Dorn area

secondary schools are projected to be from 31% to

35% minority. These secondary school enrollment

figures assume that one-half of the secondary

school age students living in the Twain Elementary

•

- School-attendance area would opt to attend Van

Horn area secondary schools.

- 4. At the elementary school level, the Twain area

students, grades 1-6, are rezoned to elementary

schools in the southern portion of the Van Horn

area. Because of the burning of Twain School-this

rezoning involves a one-way reassignment of students.

All other elementary schools in the Van Horn area

are involved in p airings or clustering which

integrate all elementary schools in the area

. •

_ at projected enrollments of from 30% to 41% minority.

5. Melcher and Seven Oaks serve grades 5-6 in the elementary school groups. They could not contain more than two grade levels of a school grouping, and could not house grades 1-2 because the city fire code does not allow first and second grade
students to be housed on up p er floors of a school
building. •

West and West port Hi g h School Attendance Areas

-The details of how the KCSD plan would relate to the West and Westport High School areas schools can be seen in Figure 10 and Table 9. Summary points are as follows:

•

1. The 1976-77 attendance area boundaries for West

High School are contined. The West port High

School boundaries are adjusted to eliminate Past

bisecting of elementa ry attendance areas. These

boundary adjustments are the inclusion of Parts of

•

Bancroft, Faxon, Longellow, and Swinne y which were

formerly in other high school areas and the elimination

of the western one-half of the Franklin area.

Both West and Westport Hi g h Schools will serve

grades 9-12. West High School students will be

allowed to take desired courses at Westport High

if these courses can not be made available at West

High.

2. The former Manual High School building at 39th Street will be converted to West p ort Junior High School which will serve g rades 7-8 students for
the combined West and West port High School attendance areas.

3. Norman and Rollins El e mentary Schools will-be closed and rezoned to Volker and Swinney Elementary Schools res p ectivel y . Volker and Swinney will be
paired, with a two-way reassi g nment of students based on grade level s p ecialization at each school. There will be a similar school pairing involving
Dougla and Switzer Schools. A bilingual/bicultural
educational program em p hasis will be installed in
the schools of these-two school pairings.

4. The western portion of the 1976-77 Faxon Elementary School attendance area is rezoned to the Longan attendance area to further dese g re g ate Longan Elementary School. Bancroft and Faxon Elementary Schools, both receiving ESEA Title I services, remain racially isolated. However, voluntary transfers from these two schools to desegregated elementary schools in the West and Westport areas will be encouraged, and the students will be assigned to inte g rated secondary schools.

5. There is strong support for locating a business and retail career oriented magnet center at West High School capitalizing on the proximity of West High and the downtown area.

•

Cladsto-e J E:=es

Sugar Creek

Larnes

Carf4

-

NDRTI-17" *NO

arriilkS T r

JIARRISON (7)

FairmJunt

r_ r1.-

unt

/1.515

S.witzer

Yat,c11
•
1.ttuc

Kensiag- -c Coy Manch.zster

ton

iii

VAN HO 4

Bristol

WEST 1)ou1 rn s
4:0

3

7-11:CaLN JR:11s --

Long-

\

0

T
\;-4:leac\-
— „

A

skew

cst Rock C

North 2.qc1Z-i-cc::
!Corte

iatre..

No
7olQ kez, J-a--:: .SaT?rOiFa.i,.-. ;:r

a 0 tz;;;;Z:,.■.,k,— ,ia----J..:.-z— -o5r.T",a•,•t ,i. , CC, E

t_L

1_ T' -%--,h --i---'1-L`-.e4--7.71-,'1L-,'5E•--1-"-:nLu

Seven O1z..,..r.,
C?. izI

R 0 1 i 1 in Bancroft.1===i

1\;ie ek\

are) (3

--6".'t;.1:1--!'C\ l(a)j ,-\,-1:-.e\

LE DS
DUN s=
JR .

OWL TIL J?
ee
Trails
•-rirori
rAIRVIEU ( 7)

\ JR-

U

Industrie' area

.A •
Limaamat

Nelson

Bryant
0
•
Border Star

0iroost

E2 SO T _rnsTE9
Nichols
area

CI 1 n`nd \ch. \.f.6..k

\

ak

4

lea
ershing\

. t„. Twain area •

ny.erstonl -nI1717-7-1A 7": JR.
\ 3 Fic.ifiif.k-S4

Knlotts

rigure 1. A composite of the KCSD dese! regation-plan is shown in Figure 1. Higi school attendance zones are outlined by heavy solid lines. The heavy broken line dividing West and Westport High zones conveys that the two zones comprise a single junior high attendance area. The grouping of elementary schools within high school attendance zones is indicated by connecting arrow-
ed lines. Double arrowed lines indicat an exchange of students. Single arrowlines indicate a one way reassignment

°rough

of students. The high school areas which are . identified by parallel diagor

als would remain racially isolated. Tr

present reassignment of some grade 1-6

a

students from Willard and Pershing to

Southwest area elementary schools be-

cause of crowding at the former two

schools would be continued; and these

students would be given the option of

attending Southwest secondary schools

(not shown on composite).

Formerly in Westport attendance area

Formerly in Lincoln atten .. dance area

_

,.....41

e,

..... Holmes

. 0

To East attendance area
r,- ,... rtreen400
me

r --\ %
I..

CENTRACLENLTi1
in cu

TO East

attendance

area

To East

attendance

area

‘AWe-JNI ‘ta aLt,endhiccOl
}red

0Richardson

4:I n•••n ••••

_I-- Ladd ()

To Van Horn attendance area
To Van Horn
'v attendance area

weeks

r- To Paseo

11 t - • I

attendance l Eend-

re

area

ance

I

12.1 r:" .1 ‘

To Paseo attendance area

Meservey Elementary attendance area

•.. ....

1
I e,.... J
( I t1

.Figure 2. Figure 2 shows the Central High School area of the KCSD desegregation plan outlined by a heavy solid line. The Central High School attendance area boundary for the 1976-77 school year is shown by a broken line where it differs from the plan Six-C boundary. That part of the 1976-77 Central attendance zone which is rezoned CO a racially desegregated high school attendance area in plan Six-C is identified by parallel diagonal lines.

. Table 1
Grade Level Organizations, Enrollment Characteristics, and .Building Utilizations for Central High School Area Schools

Schools
Elementary Schools Franklin Holmes Ladd Richardson. Mann Total

Grade levels

Enrollments based on.

1976-197 student. census

Kinder- Other grades

garten Total 7. Min-

total

orit

. Building utilization Approx-

Class- Regular Addi- % of

imatc

rooms class-

tional class- miles

avail- rooms

rooms rooms

between

able

recuired needed a utilized schools

K,1-6

71

399

987.

40

18

K,1-6.

72 .

316

997.

32

15

K,1-6

95

507

99%.

32

24

K,1-6

74

347 1007,

27

17

K,l-6

41

.233 1007.

23

10

353 . 1,802

997.

154

84

14

807.

7

697.

6

947.

4 1 787.

0

437.

31

757,

Secondary Schools

Central Jr. High

7-8

=I. 4=

721

997. 1,364 Capacity

Central Sr. High

9-12

1,382

997.

2,225 Capacity

Rooms needed for special education and other specialized programs

537, Utilization 627. itilization

1,1wee

t,,

Kensington

McCoy

Manchester
-4)

Formerly

ieaRer Elemn-t

FAST

!

terry attendance

rrt

area

3AE F_T,
-

HT.

Gree- .00d

Askew

Moore

LEGEND
A: Dunbar students to Askew B: Dunbar students to Manchester C: Dunbar students to McCoy D: Leeds students to Ashland E:. Leeds students to . Kensington

A

D

LEEDS

•

T„7"1■73

0-R./HIGH

B IC

E

Figure 3. Figure 3 shows the East High School attendance area of the KCSD deseg,7 regation plan outlined by a heavy solid line. The grouping of elementary schools within the East High area is shown by arrowed lines. The broken lines sub-dividing the present Ashland Elementary attendance area (shown on map as Ashland Jr. High) indicate how that area would be rezoned with the closing of. Ashland as an elementary school. Similarly, the lettered zones delineated by broken lines in the Leeds and Dunbar areas show the pattern of reassignment of elementary students from these areas.

Grade Level Organizations, Enrollment Characteristics, Building Utilizations and Miles between Schools for East High School Area Schools

Schools
Elementary Schoolsc (Group 1)
Kensington Moore Askew
Group 1 Total

Grade levels

Enrollments based on

1976-1977 student census

Kinder- Other grades

garten Total 7. Min-

total

orit

. Classrooms available

Building utilization

Regular Addi- 7. of

class-

tional class-

rooms

rooms rooms

required

a needed

utilized'

Approximate miles between schools

K,1-3 K,1-3 K,4-6

91d

288e 487.

42

420 E50%

107 g685' 48%

240

1393

48%

27

15

18

19

27

28

72

62

12

1007.

1.5

0

105%

1.5

0

104%

12 . 103%

(Group 2) Manchester McCoy Greenwood
Croup_2 Total Secondary Schools
East Jr. High Complex Ashland Dunbar Leeds Jr. High Total

.K,1-3 K,1-3 K,4-6
7-8

52

260i 427.

15

12

70

340i 407.

20

16

95

604k 427.

'26

25

/17

1204

41%

61

53

28

41110 oN11

9

•••

7

871

477.

1100 Capacity

3

.1007.

3.5

4

1007.

2.7

2

1047.

9

1027,

a

2.3 2.7 797. Utilizatiod

East

9-12

1842

537,

1825 Capacity

II Rooms needed for special education and other specialized programs

1017. Utilization

b Distance between minority and non-minority schools.

c Elementary school enrollment data includes Leeds and Dunbar students reassigned as in ESAA project dlncludes 20% of Ashland kindergarten

eIncludes former Yeager attendance area and 207, of Ashland enrollment, grades 1-3

fIncludes all of Askew enrollment, grades 1-3, and 20% of Ashland enrollment, grades 1-3

gIncludes 207, of Ashland kindergarten

hIncludes 40% of Ashland enrollment, grades 4-6

iIncludes 507, of Greenwood and 30% of Ashland, grades 1-3 iIncludes 507,of Greenwood and 307. of Ashland, grades 1-3

klncludes 607. of Ashland enrollment, grades 4-6

To West/ Westport attendance area

_ I Switze (tendance
fe at4endanc 1.4\

Formerly Manual attendance area
'kr

. Formerly East attendanc© area

0 Attucks

LINCOLN

• GI H I GH

LINCOLIJ

JR.

HIGH

1-1

Phillips (J

To East — attendance
area

Formerly East

---- -.a1ttendance area

Wheatley

()

_.1

To East

attendance

61/een QodN
ELL ltIVkire

yea 1

Linwood 0

a
To Central attendance area

Figure 4. The KCSD plan relating to the Lincoln 11i6h School area is presented in Figure 4. The proposed Lincoln area is outlined by a heavy solid line. The Lincoln High attendance area boundary , for the 1976-77 school year is shown by broken lines where it differs from the KCSD plan boundary. That part nF the 1976-77 Lincoln attendance area which is rezoned in the KCSD plan to racially desegregated high school attendance areas is identified by parallel diagonal lines.

Table 3
Grade Level Organizations, Enrollment Characteristics, and Building Utilizations for Lincoln High School Area Schools

Schools
Elementary Schools Attucks Linwood Phillips Wheatley Total

Grade levels

Enrollments based on

Building utilization " Approx-

1976-1977 tudenr. census Class- Regular Addi- 7, of

imate

Kinder- Other grades ,rooms class-

tional class- miles

garten Total % Nin- avail- roams . rooms rooms

between

total

ority able required necded a utilized schools,

K,1-6

55 •

262 99%

27

14

.K,1-6

52

250 977.

25

12

.K,1-6

61

307 997.

24

15

K,1-6

59'

300 1007.

32

14

227

1119

99%

108

55

12

967..

J-

8

807.

7

'92%

6'

627.

•M

33

81%

O. mat

Secondary Schools Lincoln Jr. High Lincoln High

7-8
9-12

Mb Mb

438

99%

1112 Capacity

MD OM

944 997.

1425 Capacity

397. Utilization 667. Utilization

U Rooms needed for special education and other specialized programs

I
at:endince aren
irapaolupwaiii
Figure 5. This figure shows the KCSD plan relating to the Northeast area. .The . Northeast High School attendance area in the KCSD plan is outlined by a heavy solid line. The grouping of minority and non-minority elementary schools within the Northeast area in shown by arrowed lines. Garfield would not be grouped with another school, but would receive students from the former Martin and Banneher attendance areas as it is presently doing.

Table 4
Grade Level Organizations, Enrollment Characteristics, Building Utilizations and Miles between Schools for Northeast High School Araa Schools

. Schools
Elementary Schools (Group 1)
Gladstone Scarritt Karnes
Group 1 Total

Grade levels

.Enrollments based on J976-1977 student census'
Kinder- Other Brades garten Total %
ority

Building utilization

Class- Regular Addi.- % of

rooms . class-

tional class-

avail- rooms

room a rooms

able

required needed utilized

Approximate miles between h schools

K,1-4

41

182 6 40%

15

,49

0

60%

3.4

K,1-4

61

334 d 42%

22

16

.1

77%

2.3

K,5-6

70

259 357,

29

11

16

93%

--

172

775 397,

66

36

17

80%

(Group 2)

James

K,1-4

63

320 e 42%

21

15

1

76%

4.1

Thacher

K,1-4

46

267

377, 1

16

12

0

75%

3.0

Yates

K,5-6

49

343

4477

35

13

8

60%

Group 2 Total

158

930 427,

72

40

9

68%

(Group 3).

Woodland

K,1-3

74

357

417,

35

18

5

66%

_ -

Whittier

K,4-6

73

329

41%

26

15

3

69%

1.3

Group 3 Total

147

686 41%

61

33

8

67%

Garfield (includes

K-6

Martin & Banneker)

Secondary Schools

75

345

477.

23

16

0

707.

Northeast Jr. High

7-9g

--

1532 41%

1628 Capacity

947. Utilization

Northeast Sr. High

10-12B

Me MO

1391 44%

1775 Capacity

787, Utilization

°Rooms needed for special education and other specialized educational programs b Distance between minority and non-minority schools c Includes one-third of Karnes students, grades 1-4 d Includes two-thirds of Karnes students, grades 1-4 e Includes three-fifths of Yates students, grades 1-4 ( Includes two-fifths of Yates students, grades 1-4 g There are 525 ninth grade students which are more than could he accomodated at the senior high school'
(grades 9-12 enrollment 1916). Consequently, the present secondary school grade structure at Northeast, junior high serving grades 7-9 and senior high serving 10-12,. wan re!:Itlied in this modification.

To Westport attendance area

To Central

II

attendance

area

!Mann

_

1FTniattendance

\ l arLa Iarea

1
1.1111 ■11•

Weeks ()

To Westport attendance area

Bi lcr aLL•nda
ea

f Kt11111) 0

KINCD JR. 111CH

Formerly Central attendance area
Meservey 01:611

To Southwest attendance — area

Nel Qn

4,telitlanc 1- are

••■

ay.

To Southwest attendance area

T oose\

To Southwest

ttetdc*p: attendance

a

\I area (optional

at secondary

level)

4*
Formerly Southeast attendance area

Figure 6, The Paseo High School portion of the KCSD dtisegregatiorl plan is shown in
FigUre 6, The Paseo nigh attendance area is Outlined,by a heavy Solid line.
The 1976-77 Paseo boundary is shown by a broken line where it differs from the KCSD plan boundary. Portions of the 1976-77 Paseo urea which have been rezoned into . racially desegregated high school attendance areas are identified by parallel diagonal
lines.

Grade Level Organizations, Enrollment Characteristics, and Building Utilizations for Paseo High School Area Schools

Schools Elementary Schools

Grade levels

Enrollments based on

1976-1977 student. census

Kinder- Other Irades

garten Total 7. Mtn-

total

• orit

_

Building utilization

Class- Regular Addl.- 7. of

Approximate

rooms class-

tional class-

miles

avail- rooms

rooms rooms

between

able

re uired needed/ utilized schools

Graceland Kumpf Meservey Weeks Willard
Total

K,1-6

- 56

337

97%

K,1-6 54

368

997.

K,1-6

72

536

997,

.K,1-6 . 61

K,1-6

74

467

997.

454

b 99%

. 317 . 2,162

997,

23

' 16

27

17

26 '

24

38

21

23c

20

137.

98

5

917.

4.

787.

2

1007.

6

747.

0

877.

17 . 847.

A
Secondary Schools

King Jr. High

7-8

_-

975d 997.18 182 8 C%apaU citytilization

Paseo High

9-12

--

1,728e 997.

1825 Capacity

957. Utilization

141Zooms needed for special education and other specialized programs

bResident students, grades 4-6, remaining after 320 students have been reassigned to Southwest area schools

c Includes five relocatable classrooms

•

••

d Assumes . that one-half or 511 of.the juhior high age students living in the Willard Elementary School transport

zones(created because of crowding at Willard) would opt to attend Bingham Junicir High School .' e AsGumes that one-half or 111 of the senior high age students living in The Willard Elementary transport

zones(croatcd because of crowding at Willard) would opt to attend Southwest High School

South-czT!st
attendance area (optional at secon-iE;ry level) •
To South.-est attendance area

To Paseo

attendance-1—

area

f

1Graceland 'attendance area

Pershing

1 Tr ost 1a=enta
a tenaanc are

Pinkerton
SOUTHEAST E2 HIGH

Chick

To Van Horn
attendance area (optional at secondary level)

Blenheim C)
Southwest I :tendance
:ea
Narl ro
1,Elerlenery attendan
t area

Knotts

Figure 7. The Southeast High School area of the KCSD desegregation plan is shown in Figure 7. The Southeast attendance area in the KCSD plan is outlined by a heavy solid line. The Southeast High School attendance area boundary for the 1976-77
school year is shown by a broken line where it differs from the KCSD plan boundary. That part of the 1976-77 Southeast attendance area which is rezoned to a racially
desegregated high school attendance area in the KCSD plan is identified by parallel diagonal lines. Secondary school students from the Twain area would be given the option of attending either the Van Horn or Southeast area secondary schools. Similarly, secondary school students from the Pershing Ele-L:entary transport

Table th
Grade Level Organizations, Enrollment Characteristics, and Building Utilizations for Southeast High School Area Schools

Schools
Elementary Schools Blenheim Chick Knotts Pershing Pinkerton Total

Grade levels

Enrollments based on •

1976-1977 fitudent. census

Kinder- Other grades

garters Total 7. Min-

total

orgy

Buildin g utilization

Approx-

Class- Regular Addi- % of

imate

rooms class-

tional class-

miles

avail- rooms

rooms rooms

between

able

rewired needed a utilized schools.

K,1-6 K,1-6 K,1-6 K,1-6 . K,1-6

. 97

594b 95%

104 c

252 917,

115

487 987.

96

470 d 997,

52

82f 997,

464 • 2185

977.

26

26

20

14

23

23

e

22

21

17

17

108

101

0

100%

• ••

6

100% .

0

160%

Ow MI

1

1-00%

0

1007.

.1.

7

1007.

Secondary Schools

Southeast Jr. High Southeast High

7-8 9-12

ale

970 g 98%

1305 Capacity

1787 h 98%

1925 Capacity

747, Utilization

MN OM.

93% Utilization

O. =IP

a Rooms needed for special education and other specialized programs

b Includes 77 students rezoned from Knotts because of crowding at Knotts

c Includes 74 Twain Kindergarten Students d.Resident students, grades 1-6, remaining after 113 students have been reassigned to Southwest area schools e Includes three relocatable classrooms
•••••••••••••■

( Includes 51 students rezoned from Knotts because of crowding at Knotts •

•

••

gAssumes that one-half or ' 31 of the junior high age stLiai;riEiiiving in the Pershing Elementary School

transport zone (created because of crowding at Pershing) and one-half or 100 o1 the junior high age students

living in the Twain attendance area would opt to attend Southeast Junior High

hAssumes that one-half or 37 of the senior high age students living in the Pershing Elementary School transport zone and one-half or 225 of the senior high age students living In the Twain attendance Area

would opt to attend Southeast High School

•

• I 55 :

•
Willard

attendance

Nelson

-area

3 Bryant

Troost

". 77, • 73 ,

c4

1 I

1

62 r

3?J–l2

•

Pershing

1 1

attendance

area

Border Star 0

Former Nichols attendance area

BINGHAM JR. HIGH

_7-Marlborough

—— r 1

LE=D

55: 55 students to Bryant 61: 61 students to Border Star 57: 57 students to Bryant 77: 77 students to Border Star 73: 73 students to Bryant 62: 62 students to Hartman 39: 39 students to Cook 12: 12 students to Cook
436 total students reassigned

Vigure 8. The Southwest portion of the KCSD plan is shown with the Southwest High School attendance area outlined by a-heavy solid line. The grouping of minority and non-minority elementary schools within the Southwest area is shown by arrowed lines. Transport zones within the Pershing and Willard attendance areas from which students would be reassigned to Southwest area schools because of overcrowding at Pershing and Willard are shown by light broken lines. The numbers appearing in each transport zone represent the mr-lbers of students, grades 1-6, who would be reassigned from each of the zones.

Table 7
Grade Level Organizations, Enrollment Characteristics, Building Utilizations, and Miles between Schools for Southwest High School Area Schools

Schools Elementary Schools

Grade levels

Enrollments based on

1976-1977 student census

Kinder- (ILlIerBrade_s_..... garten Total 7. Min-

total

ority

Buildin utilization

Approx-

Class- Regular Addi- % of

imate

rooms class-

tional class- miles

avail- rooms

rooms rooms

between

able

required needed a utilized_ schools b

Border Star

K,1-6

39

337c 42%

24

15

8

96%

ow ••

Bryant

K,1-6

22

456d 47%

20

20

0

100%

Nelson

K,1-6

23

217 51%

13

11

1

927.

•••

Troost

K,1-6

81

(Group 1) Hartman

K,1-2

30

Cook

K,3-4

50

Marlborough

K,5-6

50

Group 1 Total

130

506

94%

344 44%

279

49%

310 50%

9330 47%

22

21

23

16

20

12

17

12

60

40

3

1097.

•••

4

87%

1.6

4

80%

1.8

5

100%

_ _

13'

88%

Secondary Schools

Bingham Jr, High

7 - 8:

•••

887 f 53%

1188 Capacity

757. Utilization

Southwest High

9-12

MO MI.

2005 g 437.

2300 Capacity

87% Utilization

Rooms needed for special education and other specialized programs b
Distance between minority and non-minority schools c Includes 138 students from Willard transport zones (created because of crowded condition at Willard) d Includes 185 students from Willard transport zones (created because of crowded condition at Willard) e Includes 113 students from Pershing transport zones (created because of crowded condition at Pershing) (Includes 90 students or one-half of the junior high.age students from the Pershing and Willard
Elementary transport zones (assumes this number of students would opt to continue their education in Southwest area secondary schools) g Includes 148 students or one-half of the senior high age students from the Pershing and Willard Elementary transport zones (assumes this number of students would opt to continue their education in Southwest area secondary schools)

•
HARRISON 7th GRADE CENTER
C2
orth Rock Creek 0 C)Korte
NO1N _N JR. HIGY El Three Trails -4)
•
Figure 9. This figure shows the KCSD plan relating the Van Horn area. The Van Horn High School attendance area is outlined by a heavy solid line and includes the present Van Horn area plus the annexed Melcher and Seven Oaks Elementary School attendance areas. The grouping of elementary schools within the Van Horn area is shown by double arrowed lines. The present Twain elementary students, grades 1-6, would also be assigned to Van Horn area schools because of the burning of Twain School. Secondary school age students from the Twain area would be given the option of attending either the Van Horn or Southeast area secondary schools.

luule 0
Grade Level Organizations, Enrollment Characteristics, Building Utilizations and Miles between Schools for Van Horn High School Area Schools

Enrollments based on

Grade 1976-1977 student census

Schools

levels

Kinder- Other grades

garten Total 7. Min-

total ' .

ority

Elementary Schools

(Group 1)

Fairmount

K,1,-4

50

271c 30%

Sugar Creek22

119d 33%

Carlisle

K:11--1/44

28

138e 30%

Seven Oaks

K,5-6

50

257

35%

Group 1 Total

. 150

785

32%

' Building utilization

. Approx-

Class- Regular Addi- 7. of

imate

rooms class-

tional class- wiles

avail- rooms

rooms rooms

between

able required needed utilized _schools

17

12

9

6

11

7

17

10

54

35

0

71%

8.2

1

78%

9.5

2

82°!.

8.2

3

767.

6

76%

(Group 2)

Mount Washington

K,1-4

Bristol

K,1-4

West Rock Creek

K,1-4

Melcher

• K,5-6

,..)

G% roup 2 Total

i

(Group 3)

Korte/N, Rock Creek

K,1-6

Three Trails

K,1-6

Pitcher

K,1-6

Group 3 Total

Secondary Schools

78

359f 337.

19

17

64

287g 35%

22

14

33

187h 37%

11

9

'57

433

34%

20

18

232

1,266

34% '

72

58

68

625 i 37%

12

201

37%

55

471i 41%

135

1,297

38%

37

27

14

9

21

'21

72

57

0

897..

3

777.

0

827.

0

907.

3

857.

a

5

867.

0

64%

0

1007,

5

86%

8.0 7.7 4.8
11.3 9,4 7.7

Harrison 7th Grade Center

7

--

Fairview 7th Grade Center

7

--

Total 7th Grade

391 35% 230, 35% 621J 35%

550 Capacity 325 Capacity
875 Capacity

71% Utilization
717, Utilization 71% Utilization

Nowlin Jr. High

8-9

1,249) 347.

1,452 Capacity 867. Utilization

Van Horn Hi h

10-12

--

1 896 J317.

1,850 Capacity 1027. Utilization

--

= Rooms needed for special education and other specialized programs

b Distance between minority and non-minority schools

c Includes 22 Harrison and 78 Seven Oaks students;

'dIncludes 38 Seven Oaks students .

gIncludes 14 Harrison and 40 Seven Oaks students;

f includes 110 Harrison and 110 Melcher students

Includes 97 Melcher students;

h Includes 69 Melcher students

Includes Twain students (233 to . Korto/Nort:h Rock Creek; 73 to Three Trails; and 179 to Pitcher)

J Assumes that one-half of the secondary school students from the Twain area would exercise option to attend

Van Horn secondary schools (47 grade 7 students; 113 grade 8-9 studen t s; and 165 g rade 10-17 nt.nrInnt-01

Switzer
3 WEST
HIGH

Longfellow 0

Former Norman attendance area

Lon,,2.-an
Ij' axon 1 1

rover Rollins attendance azPa

Bancroft
0

Figure 10. Figure 10 shows the KCSD plan related to the West and Westport High School area! (heavy solid line). The heavy broken line shows the boundary between the West and West- Port High attendance areas-. - Westport Junior High would serve both the West and Westport High areas. Paired elementary schools are indicated by double arrowed connecting lines. It can be seen that the western portion of the Faxon attendance area would be rezoned to Longan.

Grade Level Organizations, Enrollment Characteristics, Building Utilizations and Miles between Schools for the West and Westport Area Schools

Schools

Grade levels

it Elementary Schools

(Group 1)

Douglas

'

Switzer

Croup 1 Total

K,4-6 K,1-3

Enrollments hosed on 1976-1977 student census

Kindergarten total

Other _grades Total 7. Black % His- % Total'
panic Minority

26

238

36%

44%

50%

81 .. 259

34%

417.

757,

• 107

497

357. . 437,

777.

Buildin utilization _

.

Class- Regular Addi- % of

rooms class-

tional Class-

avail- rooms

rooms rooms

able

required needed utilized

Approximate miles between schools

17

11

6

27

12

15

44

23

21

1007.

1.0

100%

a• -

.100%

stport Elementary. Schools

(Group 2)

Swinney bK,1-4

52

Volker cK,5-6

51

Group 2 Total

103

316

15%

20%

37%

148

17%

227..

417.

464

157.

217°

387.

':
20 13 33

15

5 ..

100%

1.4

7

6

1007,

MD -

22

11

1007.

Bancroft

K,1-6

99

564

87%

17.

887,

28

24

5

104%

Faxon

K,1-6

47

335

97%

27.

997,

22

14 , 4

827.

Longan

K,1-6

' 45 d

256e

297.

4%

357.

18

12

3

83%

Longfellow

K,1-6

67

' 254

41%

67.

56%

23

13

5

'787.'

!condary Schools

Westport Jr. Hight

7-8

738

54%

14%

69%

West High

9-12

--

279

30%

48%

787,

Westport High

9-12

--

1160

58%

12%

.•

717. .

Zooms needed for special education and other specialized programs Includes Rollins attendance area Includes Norman attendance area Includes 8 students rezoned from Faxon Includes 50 students rezoned from Faxon Serves both West and Westport Nigh School areas

1325 Capacity

56% Utilization

800 Capacity ' 35% Utilization

1725 Capacity , 6 77, . Utilization

=ACT OF THE KCSD DESEGREGATION PLAN UPON RACIAL ISOLATION IN THE SCHOOL DISTRICT
The impact of the KCSD desegre g ation plan upon racial isolation in the School District of Kansas City, Missouri is silmmarized in Tables 10, 11, 12, and 13. It can be seen in Table 10 that after the implementation of the KCSD plan that 51 of the District's schools would be dese g regated and 30 schools would re,nq in racially isolated. By contrast, Table 11 shows that before imp lementation of the plan only twenty schools were desegre g ated and 64 schools were racially isolated.
Table 12 shows that 38% of the minority elementary students, 467, of the minority junior high students and 41% of the minority high school students would be attendin g a dese g re g ated school after the implementation of the KCSD school dese gregation plan. If one includes students attending the District's Vocational/Technical Education Center from racially isolated hi g h schools there would be 467. of the minority high school students attending racially desegre g ated schools. These percenta g es comp are with 15%, 117. and 220 of elementary, junior hi g h, and senior high school minority students attending desegregated schools prior to the implementation of the KCSD plan -(Table 13).
It can be seen from Table 12 that 58% of the of all elementary students 667. of all junior hi gh students and 59% of all high school students in the School District would attend dese g re g ated schools after the implementation of the KCSD desegre g ation plan. If Vocational/Technical Center attendance were included as discussed in the preceding p aragrap h, 657, of all high school students in the district would be attending a dese gre g ated high school after implementation of the KCSD plan. Before implementation of the plan only 20% of all elementary students, 157. of all junior high students, and 317. of all.hi g h school students in the District attended desegregated schools (Table 13).

Table 10
Enrolment .Characteristics a of Schools in the School District -of Kansas City, • Missouri &firm the.Imiementation of the KCSD School Desegre g ation Plan

" Schools with 307. to 807.
- mine'ritv enrollment! -

Schools

Minority Total

Elementary

,

Askew

329 685

Border Star

142 337

Bristol
Bryant Carlisle Cook

100 287
214 456
41 138
137 279

Douglas

194 259

Fairmount
Garfield Gladstone

• 81 271
162 345
73 182

Greenwood
Has r-- - -1 James Karnes

254 604
151 344 134 320 91 259

Kensington

138 288

Korte/N.R. Creek... 231 625

Lonzan.

90 256

Longfellow
Mancheste-

142 - 234 109 26U

Marlbrouzh
McCoy Meicher
Moore

155 310
136 340 147 433 210 420

Mount Washington
Nelson
Pitches Scarr 4 tt

118 359
111 217
193 471
140 334

Seven Oaks Sugar Creek Swinney

90 257
39 119 117 316

SwitzeThacher

190 238
99 267

Three Trails

74 201

Vo l ker

61 148

West Rock Creek
Whittie-
Woodland

69 187 135 329 146 357

Yates

151 343

Z Minority
481
421 35: -
471 301
431
751 301 47Z 40: 427.
447. 421
35: 48: 37:
35:
561
42:
50: 401.
34: 501 33:
51;
41: 42: 351 33:
37: 807. 371
37: 41:
377
41: 411
44:

Schools with more than 807. m noriry enrcIlments

..

Schools

Min-

I Min-

city Total ority

Elementary b
AttuCks
Bancrof•
Blenhe'Chick ft Faxon
Franklin
Graceland
HoImps
Knot.-s
F---f
Ladd L'- wood Mann
Meservey
Pershing
Phillips
Pinkerton
Richardson Troost
Weeks
Wheatley
Willard

259 262 99:

496 564 881

564 594 95: •
229 252 91: 332 335 931 391 399 9E:

327 337 971

313 316 95:

477 487 981

36• 358 99:
502 507 93: 242 250 971 223 233 103:

531 536 93:

465 470 99:

304 307 93:

378 382 99:

347 347 100:

476

506 -941

452 467 991

300 300 102:

449 454 93:

Sub Total

8441 8673 97:

Junior High Central Jr King jLincoln it Southeast Jr

714 721 965 975 434 •438 951 970

93193: 991 987.

Sub Total
S.2nior High
I Central Lincoln
Paseo Southeast

3064 3104 99:
.

1358 1382 931

935

944 99:

1710 1728 991
1751 1787 981

Sub Total

5194 12095 431

Sub Total

5764 5841 99:

Junior High
Bingh= Jr
East Jr
Fairview 7th
Harrison.7th Northeast Jr Nowlin Jr Westport Jr
Sub Total

470 887 53:
409 871. 47:
81 230 35:
137 391 351
628 1532 411 . 423 1249 347.
509 738 691
2659 5898 451

Senior High
East Northeast Southwest
Van Horn
West Westport

976 1842 53:
612 1391 44:
862 2005 43:
588 1896 31: 218 279 . 781
824 1160 711

Sub Total

4080 E573 481

.

'Special education students assigned full time to special education c assroo= are not

included. b Grades one through six only, kindergarten.exaluded

Table LI
Enrollment Charszteristics a of Schools in . the School District of Kansas City, Missouri befcme the Imolementstion of the KCSD School Desegregation Flan

Schools wit 3D1 to 801 minority enrollments

3a 0c:;. aliv isolaLec schools

Schools with less tnahl'

Schools with more t.:-.an

minorit y enrollments

minorit y enrollments

Schools Elementary'

Mi n-

1 Mindi

ort y Total oritv

Schools

'Elementary -

Minoritv

Ashland

146 447 331

Askew

131

Border

166 .377 44%

Bristol

15

Eryar-

112 355 32:

Carlisle

5

Cook..

•

190 372 511

Fairmount

10

Garfield... .....

167

3E5

43:

Gladstone

17

Ear-tr.:am

256 399 671

H,T■44ron

6

Lonzan .

104 317 331

James

49

Loazfellow

139 250 561

Kensinzto-

Ill

Nelson.. Nichols

.... 155 286 541

Korte/N R Creek. 21

255

404

63:

- 1:ancnester

83

'Norman.
Rollins

86 184 471

McCoy

72

74 138 541

Mt. Washinzton

54

Swianey

67 225 301

Pitcher/Fairview

35

Switzer—.

223 311 721

Rock C-eek U

8

Volke-

. 96 177 541

Scarritt

41

Suter Creek

1

Sub Total

2246 4627 491

Thacher

26

Three Trails

1

Junior High

Whittier

58

Binrnam Jz Leeds/:,..;:aMar ..

377 808 471 93 287 327.

Sub Total

744

Total
460 365 161 282 168 302 361 377 573 309 333 290 405 221 324 169 297 165 462
6075

Sub Total
Senior High East Southwest Westport
Sub Total

470 1095
751 1665 699 1947 940 1373 2390 4985

421 Junior Hi.gh Nort'neast-Jr

451 367. • 691
481

Sub Total
Senior High Northeast
. Van Horn
Sub Total

4C3 I509
. 6 '395'
409 2405
312 1354 65 1470
377 2824

1 Min ority
281 4: 31 4%
/01 27.
141 297.
41 271 191 197.
81 4: 131 1: 91 I% 13:
121
231, 'ca'
17-1
231 41
12:

Schools
:-_ementaryAttucks . Eancrof w Blenheim Chick Douglass Fr eon Frank l in Grace/and Greenwood 'olmes Karnes
Ladd Linwood 1-lann Marlborouzh
Neser 3 ey Fersh 4 ng Philli p s Pinker-on
Richardson
Seven Cars Troost Weeks Wheatley Wil l ard Woodland Yates Moore
Sub Total

frin-

7. Mi n

or 4 tY Tctal ..rite

316 322

476 534

481 511

298 312

205 246

295- 293

579 593

348 350

346 370

454 457

332 410

593

605

450 450

490. 495

263 255
287 284

300 341

459 478

441 . 445

439 440

294

297

351 357

424 424
255 266

489 509

644 649

367 368

605 607

383 391

279

280

218 244

12167 12503

987. 891 94: 95: 831 57Z 98 97: 941 93: SI:
99: 57:
99:
88:
95: 99:
93: 99% 981 1001
931
961 99: 99: 991 987. 99: 89:
971

Junior High
Central J-
King J-
Lincoln Jr Southeast Jr

876 878 99:

915

915 99-

690

700 99:

1118 1142 98:

Sub Total

3599 3636 99:

Senior High Central Lincoln Manual Paseo
Southeast
West

1776 1783 991 1187 1191 95: 1156 1165 997.
1558 1555 99:
2347 2379 98: 293 359 81:

Sub Total
a Spectal education students assigned full time to special education classrooms are not included.
Grades one through six only,.kindergarten excluded

8322 8452 98:

Table IZ
The Extent of Stud e nt Des e gregation within the Schcol District of Kansas City, Missouri after the- Implementation of the KCSD School Dese g regation Plan

Studnt-sa
Minority Elementary schoolb Junior high school Senior sigh school

Attending esegregated schools (30% to 80 minority enrollments
Number % of Total

Attending racially isolated schools
(more than 80% minority enrollments

Number

of

total

Total

5 ' 194 38% 2,659 • 464 4,080. 41%

8,441 677. 3,064 54% 5,764 59%

.13,635 5,723 9,848

Non-minority Elementary schoolb Junior high school Senior high School

6,901 97% 3,239 99%
98%

232 3%

40

17.

77

27.

7,133 3,279 4,570

Total Elementary schoolb Junior high school Senior high school

12,095 58% 5,898 66% 8,573 59%

8,673 42% 3,1C4 34% 5,841 41%

20,768 9,002
14,414

aSpecial education students assigned full time. to s p ecial education classrooms are not included.
b Grades one throu gh six only, kindergarten excluded During the 1976-77 school year there are 489 students from what would be the remaining racially isolated high schools (Central, Lincoln, Paseo; and Southeast) attending the District's desegregated Vocational-Technical Center. Considering that the total enrollments of these four schools during the 1976-77 school year is 16% greater than they would be after the . implementation of plan Six-C, one would project a similar reduction in the number of students from these schools attending the Voc-Tech Center, or a Voc-Tech attendance of 411. Adding this number to the 4,293 minority group high school students attending dese g regated schools
. full time in the KCSD plan would increase the percent of minority high school students attending a desegregated school from 417. to 46%. It would be necessary for an additional 433 minority students attending racially isolated high schools to attend desegregated magnet centers to bring the percentage of minority high school students attending desegregated schools to 507..

Table 15
The Extent- of Student Desegregation within the School District of Kansas City, - Missouri before the Imp lementation of the KCSD School Desegregation Plan

8tudnt-sa
17-lInority ElEmentary school b Junior high school Senior high school

Attending racially isolated schools

Attending daseg-

reaated schools Less than 30:

More than 80%

(307. to 80% min- minority enroll- minority enroll-

ority enrollments ments

ments

Number 7. of total

Number % of total

Number 7. of total

Total

2,246 15% 470 11%
2,390 220

744 57.

409 9%

377

37.

12,167 80% 3,599 807. 8,322 75

15,137 4,478
11,089

Non-minority Elementary school b Junior high school Senior high school

2,381 29% 625 24%
2,595 50%

5,331 1,996 2,447

667. -
757.
4770

436 5%

37

1%

130 37.

8,148 2,658 5,172

Total Elementary school b Junior high sc:/ool Senior high school

4,627 20% 1,095 157. 4,985 31%

6,075 26% 2,405 34% 2,824 177.

aSpecial education students are included. b Grades one through six only, kindergarten excluded

12,603 -54% 3,635 51% 8,452 52%

23,305 7,136
16,261

,.4 .r:

Table .4

Proportion of Responsibility Placed on Minority and Non-ninorit♦ Stuocnts at the ElenentarY School Level

Elementary school reassignments

Grade levels reassigned

0 to 3 Mlles berween schools

Minority trot= t.._roer o t Numper OL students students
tin,. n...,mher of grade. levels

Non-minority erouo

N,moer o

0:

students students

tines

nu=oer of

grade

levels

Svioney to Volker Volker to Swinney Faxon to Longan Douglas to Switzer Svitzer to Douglas
Cool( to Marlborcrugb. Cook to hartman Esrt=an to Cook Partman to Mar/borough harloorough to Cook
• Marlborough to Fort= an Kemsington to Askew hoors to Askew Askew to Moore McCoy to Creeowood

5-6 1-4 X,1-4 4-6 1-3
5-6 1-2 3-4 5-4 3-4
1-2 4-6 4-6 1-3 4-6

18 67 52 68 120
■ 40 23 27 33 88
97 117 129
97 33

36 268 364 204 360
80 46 54 66 176
194 351 387 291
99 -

44

88

76

312

6

42

12

36

47

141

80

160

115

230

51

102

63

126

16

32

15

30

148

444

24

72

180

540

160

480

Creerr,00d to McCoy Woodlaad to Whittier Whittier to Woodland Thscher to Yates Yates to Thstmner

1-3 4-6 1-3
5-6 1-4

Scarritt to Tarnes

5-6

Karnes to Soarritt

1-4

136

4.08

117

351

...28

54

8

- 16

84

336

10

20

119

476

204

612

6

18

202

6U6

88

176

1

4

101

202

19

76

Sub-total Percent of co=nfined groups

1,511 4E1

4,667 511

1,660 S 1

4,529 49:

3.1 to 6 Mlles berween schools

Melcher to West Rock Creek 1-4

West Rock Creek to Melcher 5-6

Manchester to Creeowood

4-6

Greeawood to Manchester

1-3

James to Yates

5-6

Tates to Jamles

1-4

Gladstone to Karnes

5-6

Karnes to Gladstone

1-4

Sub-total Percent of combined groups

6.1 to 9 Miles ber.een schools

helcher to Bristol

1-4

Bristol to Meitner

5-6

Melcher to Mr. Washington 1-4

Mt. Washington to Melcher 5-6

Seven Oaks to Carlisle

1-4

Carlisle to Seven Oaks

5-6

Seven Oaks to Fairmount

1-4

Fairmount to Seven Oaks

5-6

Sub-total Percent of co=bined groups

68

272

1

2

9

27

110

330

5

10

123

492

6

12

59

236

381

1,381

447.

53:

94

376

4

8

107

428

1

2

40

160

2

4

76

304

3

6

327

1,288

491

65:

1

4

73

146

86

258

150

- 450

101

202

3

12

57

114

10

40

481

1,226

561

477.

3

12

87

174

3

12

120

240

1

4

41

82

2

81

162

338

694

51:

357.

9.1 to 12 Miles between schools

Seven Oaks to Sugar Creek 1-4 Sugar Creek to Seven Oaks 5-6

38

152

-0 -

-0-

-0-

-0-

44

88

Sub-total Farzeor of co.bined groups

38

152

461

63:

44

88

54:

371

Grand total Percent of combined groups

2,257 47:

7,488 53:

2,523 531

6,537 47:

!,s11.1 students reassigned to Korte/North Rock Creek, Pitcher, and Three Trails

Elementary Schools are not included in this table since their reassignment is necessitated by factors other than desegregation.

Table 15

Distance of Desegregated Secondary Schools from their 1976-77 Elementary Feeder Schools Compared with Distance from their Annexed Elementary Feeder Schools

Ele=antary feeder schools
East High School area 1976-77 feeder schools . -Ashland Askew Kensington Manchest.-r McCoy. Average 1976-77 feeder schools

Befcre ia-.?lementation of .desegrer_atioh elan

M 4 las f rom junior hi gh school

Miles from high school

.

--

-.. _..

After imDlementation of 6,--searezation elan

Miles from junior high school

Miles from high school

Ashland Jr. __
1.0 .8
2.4 1.5 1.4

_East .9
1.1 .4
1.6 .8
1.0

Anmaxed feeder schools Greenwood Moore •
- Average annexed feeder schools.
Nortneast High School area 1976-77 feeder schools Garfield Gladstont,. Jams Scarritt Thacher Whittie r Average 1976-77 feeder schools

.7 a

.9b

.6a

.8b

.6

.8

1.0

.9

1.3

1.8

1.2

1.4

NortheastJr. Northeast

1.6

1.8

1.0

.8

--

1.2

1.0

1.1

.9

.2

.4

--

1.6

1.8

1.1

1.1

Annexed feeder schools Karnes Woodland Yates Average annexed feeder. schools
Southwest High area 1976-77 feeder schools Border Star Bryant Cook Hartman Marlborough (western) Nichols Average 1976-77 feeder schools

1.8c 1.7c
.4° 1.3
-------

6.0d 4.6d 3.8d 4.8
----

2.7

2.9

2.3

2.5

3.0

3.2

2.7

2.9 -

Binaham 1.8 2.8 .8 1.2 1.4 1.8 1.6

Southwest .4
1.1 1.2 2.6 2.6 1.4 1.6

Annexed feeder schools Marlborough (eastern) Nelson Troost Average annexed feeder schools.
continued

2.5e 2.3 d 2.3e 2.4

2.5 f 1.43 2.3 f 2.0

1.4

2.6

3.9

3.0

3.5

1.8

2.9

2.5

Table 15 continued

Elementary feeder schools

:an Horn Hi g h School area

1976-77 feeder schools

Bristol

..

Carlisle

Fairmount

Harrison

Korte/North Rock Creek

...

Mount Washington

v itch c. r

Su g ar Creek

Three Trails

West Rock Creep_

Average 1976-77 feeder schools

Before implementation of dese g re g ation: p lan

Miles from .junior high school

Miles from high school

--

--

--

-.. ......

--

--

_..

--

-- --

--

After implementation of d ese g recation plan

Miles from junior high school

Miles from high school

Nowlin 2.0 2.8 4.2 4.0 .4 3.3 1.4 3.9 1.2 2.2 2.4

Van Horn 1.3 1.2
- 1.3 1.8 2.1 0.8 3.7 2.6 3.7 3.1 2.2

Annexed feeder schools Yelche r . Seven Oaks Avera g e annexed feeder schools
Westport Hi g h School area 1976-77 feeder schools Bancroft (northwestern) Faxon (western) Longan Lon g fellow No==n Rollins Swinney (northern) Volker Average 1976-77 feeder schools.

2.4a 1.0 1.7
---
---

2.2b 1.2 1.7
---
---

6.4

9.0

6.0

7.4

. 6.2

8.2

Westport Jr. 1.1 1.2 .9 1.7 1.2 .5 1.7 1.6 1.2

Westport 1.1 1.2 .9 1.7 1.2 .5 1.7 1.6 1.2

Annexed feeder schools Bancroft (southeastern) Faxon (eastern) Swinney (southern) Average annexed feeder schools
West Hign School area 1976-77 feeder schools Douglas Switzer Average 1976-77 feeder schools

1. 1 d 1.2 d 1.7 h 1.3
1.0j .1-] .6

1.0g

1.1

1.1

I.6g

1.2

1.2

2.9 1

1.7

1.7

1.8

, 1.3

1.3

1.0j .1j .6

.Westport Jr. 2.8 3.0 2.9

_West 1.0 .1 .6

Annexed feeder schools None

`Central Junior High School; °Central High School;

c Lincoln Junior High School

u-Kanual High School; .Paseo High School;

Southeast Junior High 4i.,estport High School;

School;

Southeast High School Southwest High School

-_The Board of Directors of the School District of Kansas City, Missouri , met in Executive Session on December 2, 1975, in the Board Dining Room, with the following members present: Mrs. Robbie R. Tvler, President; Er. Charles R. Rinehart; Mr. James H. Lvddon; Mrs. Anne B. Blond; Mr. William B. Bundschu; Mr. Samuel
J. Car p enter; Mr. Fletcher Daniels; Mr. Barton L. Hakan and Mrs.
Mary Roberson, being all-the members of the Board.
Mrs. Robbie R. Tyler, President, in the Chair.'
Among other•proceedings, the attached resolution was approved.
Mr.Daniels moved a pp roval of the following resolution:
RES MUT T ON
W--:ERZAS, the 'United States Department of Health, Education,.and 7:Telfare has notified the District of its belief that the District has failed .to. neet the recuiraments of Title VT of the Civil Rights Act of 1954, e ll ..-ginz that the District has failed to take sufficient affir=ative action to raciaLly balance schools and failed to provide eoual _ educational o pp ortunity to students in Predominant ly minority schools, and
WHE-REAS, the District den' es that it has in any way failed to meat the recuirements of Title Vi of the Civil Rifats Act of 1964 but does desire to tare additional voluntary action for the benefit of all Chil dren of the District by the bezinning of the 1975-76 school year, and
WT=EAS, the District has organized a Community Task Force to assist -it in achieving this goal, and
WHEREAS, federal court decisions in recent months relating to two cities, Detroit, Michi,--_-an and Atlanta, Georgia, wherein the factual situations are, in several pertinent res p ects, sLmilar to those existing in Kansas City, indicate at both the district court and court of app eals leve l s an awareness of the s p ecial problems which must be considered by predominantly minority urban districts surrounded by predominantly non-minority suburban districts as they seek to make the best possible education available to the students they serve, and

December 2, 1975
WHEREAS, the District believes that in light of these decisions the U.S. Dep artment of Health, Education and Welfare should now be _willing to accept desegregation plans reflecting these considerations,'
WF17REAS, H3W's res ponse to this resolution is needed L=:mediately in order ,to develop a plan acce ptable beg i nni - of the 1976-77 school year,
BE IT THEREFORE RESOLVED:
1. That the District hereby declare its wiilinzni-ss to negotiate with the Department of Health, Education and Welfare, pursuant to the guidelines herein set forth, for settlement of the current controversy between the De partment and the Dist--ict concern; -: the District's allezed non-com pl iane w i th the recuiraments of Title VI.
2.. That in attampt5ns to settle the matter, the District commits itself to acce ptance of the following general elaments to be included in a Plan:
a. Restructuring of the District's student assi,7-,,mc.nts throu,-7:-I educationally sound p nd aF-riristratively feasible boundary charges, school closings, and individual reassi gnments in such a manner that, except under unusual circumstances, no school in the District shall have less than 20% minority Population; provided, however, that:
(1) The District shall not be recuired to r a 1changes in pup il assi gnments affecting any school which is intezrated at a 25% to 60%, minority level,
(2) Kinderzarten, preschool and s p ecial education Proz-Pr7s shP11 not be included.
(3) Assignments necessitating trans p ortation or long-distance walks shall miri-rized and in no instance shall bussing be recuired other than to the school closest to a student's place of residence which offers a pp rop riate grade level education for that student, if the parent or guardian of a child so assigned objects to the assignment.
b. Continuation and increased encouragement of the District's current transfer p olicy pursuant to which:
(1) Any student wishing to transfer from a school in which his race is that of the majority of the student p opulation to a school in which his race is in the minority of the student Population (r P jority-to-minority transfers) shall be granted the transfer if s p ace is available in the school recuested.

December 2, 1975

Page iZ3

(2) -If sp ace in the receiving school is limited, students: reauest i nz majority-to-minority transfers shall be given =reference over those reouesting transfer for
other reasons..

(3) if distance to the receiving schools in a majority-
to-rl i-tority transfer is such as to meet the District
reauiraments for Provision of transportation at
District exp ense, the District shall Provide for free
tramsmortaionn. In so dQinig, the District may utilize
• 4.
public transportation.

(1k) Transfers involving changes from one school in which the race of the student reauesting transfer is in
the majority to another school in which his race is
also in the majority or from'a school in which the student's race is in the minority to another school in which his race would be in the minc-ity may be -
granted at the discretion of the District, staff.

(5) Transfers which a student reauests transfer from
a school in which his race is in the rino-ity of the student e-, -r-aLLmant to a school in which his race is in the majority sHa l l be Prohibited except under
extreme circumstances as set out more fifl l_y in the
current transfer policy.

c. Possible establishment of alternative schools at the elementary level with op en, voluntary enrollmnt.

d. possibl e establishment of maznet hi `h schools Patterned after the Kansas City Vocational- T echnical Hizh School, with omen, district-wide enrollmnt for s p ecialized programs such as fine arts and advanced academic classes.

e. A provision for seeking voluntary coop eration from suburban
districts, in both Missouri and Kansas, in providing progr2-I
for inter-racial exchan g es and in improving racial balance of schools throughout the metro p olitan area throuz-h agreement of
said suburban districts to acce pt enrollment of a given number
of minority students from the Kansas City District volunteering .for such assigrment.

f. A provision that the District co —nits itself to working in
conjunction with area housing authorities and planning agencies in an effort to achieve increased residential integration.

3. If HEW agrees to negotiate as outlined above, the details of a plan incorporating these general Provisions 511311 be develo p ed by a team of 5-10 exp erts satisfactory to HEW and the District. The team of exerts shall consult with the Community Tank Force wh i le develop ing this plan.- Development and implementation of a plan as outlined herein is not intended to restrict or place any time limitations on the Ca=unity Task Force. The purmose of the plan
p roposed herein is to achieve a settlement with HEW and thereby

•

Dece-•-)er 2, 1975

Page r1/14

prevent a cutoff of federal funds while the Task Force Pre p ares its own integration recommendations.

14. The -Dian develo-De6. 'by the team IT

a.-.-ts- and the C=nnity Task

Force sh pI T be submitted to the Board. of Education and HEW for

final approval.

5. That a team of three educational consultants satisfactory to HEW and the District be ecloyed by the District to evaluate the com-Parab ili ty of educational servit,es in the schools of the Dist-i ct. If said consultants find inecuities to exist, the District agrees to implement Plans for remedying the ineouities; Provided, hc-,:aver, that if remedies are recc=er.ded. and if in the judzmant
of the District the remedies suzs-ested. by the consultants are not educatio ll v soand p nd administratively feasible, the D4strict shall work w-ith the consultants until re--edial action satis-
factory to HEW. and the District is agreed upon.

6. That in view of the ex7enses involved in devalo -p c -, g and Lm-ple-
menting an innovative plan designed to meet the s p ecial needs of a prdo-,4 nantly minority urban school district, the District shall a y ppl to HEW for sp ecial Eak.4.. funds to ass i st in planning and implamentinz the plan for reducing --ac ? alimbalance and residential sezrei:ation as outlin-d herein.

7. -Tne attorneys for thestrict are directed to Droviae HETJ with
a copy of this resolution and to seek HEJ's acceptance of the p rop osals set forth herein.

The m.otion was seconded by Mr. Hakan and app roved by the following vote:

Ayes: Mrs. Blond, Mr. Bundschu, Mr. Daniels, Mr. Lyddon, Mr. Hakan, Mr. Rinehart, Mrs. Roberson, Mrs. Tyler

Noes: Mr. Carpenter

% •I \
I

.;

• *'

/)

•.

.• •

'I •

:

.4 •

) ,

I

• •

-•• • .

1 ,,

.• • • •

I 1 . •,

• •

1,

•

. • •

THIS IS TO CERTIFY THAT THE ABOVE and foregoing is a true and correctcopy of an excerpt taken from the minutes of the meeting of the Board of Directors of the School District of Kansas City, Missouri, held December 2, 1975.
Mildred.U. LaBouff, Secretar.f/Pro–Tem Board of Directors, THE SCHOOL DISTRICT OF KANSAS CITY, MISSOURI

The Board of Directors of the School District of Kansas City,
Missouri, met in Special Session at 1:30 p .m., March 20, 1977,
_ in the Auditorium of the Kansas Cit y Vocational Technical Education Center, 1215 East Truman -Road, with the following members present: Mr. James H. Lvddon, President; Mr. Samuel J. Carpenter; Mrs. Anne B. Blond; Mr. James P. 'Bonadonna; Mr. Fletcher Daniels; Mr. Maurice E. Dwyer; Mr. John A. Rodriguez, Dr. Edward W. Scaggs and Mrs. Joyce Stark, being all the members of the Board.

Mr. James H. Lyddon, President, in the Chair.

Among other proceedings, the following was had and made:

After the presentation, Dr. Scaggs moved that the Board vote on pro p osed Interim Desegre g ation Plan: Modified Six-C dated
arch 18, 1977 by high school attendance areas and that the administration be directed to im p lement the chances as approved.

The motion was- seconded by Mr. Daniels and was approved as follows:

Ayes:

Mrs. Blond, Mx. Car p enter, Mr. Daniels, Mr. Dwyer, Mr. Lvddon, Mr. Rodriguez, Dr. Scaggs, Mrs. Stark

Noes:

Mr._Bonadonna

Mrs. Blond moved that the dese gre g ation p lan for the West p ort High School attendance area be a pp roved as presented; that Norman School
be closed with the attendance area assi g ned to William Volker School; that Rollins School be closed with the attendance area assigned to E. F. Swinney School; that Manual High School be closed and reopened as a junior high school for the West p ort High School and West High
School areas and that the former Manual High School attendance area be assigned to Northeast High School and Lincoln High School.

The motion was seconded by Mr. Rodriguez and was approved as follows:

Ay es:

Mrs. Blond, Mr. Carpenter, Mr. Daniels, Mr. Lyddon, Mr. Rodriguez, Dr. Scaggs, Mrs. Stark

Noes:

Pr. Bonadonna, Mr. Dwyer

Mrs. Stark moved that the desegregation plan for the Southwest High School attendance area be a pp roved as presented: that the J. C. Nichols School be closed and that the attendance area be assigned to Hale H. 'Cook School.

The motion was seconded by Mr. Carpenter and was approved as follows:

Ayes:

Mrs. Blond, Mr. Carpenter, Mr. Daniels, Mr. Lyddon, Mr. Rodriguez, Dr. Sca g gs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

March 20, 1977

Pace i2

Mr. Carpenter moved that the desegregation plan for the Southeast High School attendance area be approved as presented.

The motion was seconded by Mr. Daniels and was ap p roved as follows:

Ayes:

Mrs. Blond, Mr. Carpenter, - Mr. Daniels, Mr. Lyddon, Mr. Rodriguez, Dr. Scaggs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

Mrs. Stark moved that the desegregation plan for the Van Horn High School attendance area be ap p roved As presented; that the Benjamin Harrison School and the Fairview School be closed as elementary schools and reo p ened as seventh grade centers.

The motion was seconded by Mr. Carpenter and was ap proved as follows after Mr. Dwyer had expressed his objections to the plan.

Ayes:

Mr. Carp enter, Mr. Daniels, Mr. Rodriguez, Dr. Scaggs, Mrs. Stark

Noes:

Mrs. Blond, Mr. Bonadonna, Mr. Dwyer, Mr. Lyddon

Mrs. Blond moved that the desegregation p lan for the East High School attendance area be ap proved as presented; that the former Yeager School elementary attendance area be assi gned to Kensin g ton School that Ashland School be closed as an elementary school with elementary attendance areas assigned to Kensington School, Askew School and Greenwood School and that Ashland . be reopened as a junior high school.
The motion was seconded by Dr. Scaggs. Mr. Bonadonna expressed objectio: to the motion. The motion was ap proved as follows:

Ayes:

Mrs. Blond, Mr. Carpenter, Mr. Daniels, Mr. Lyddon, Mr. Rodriguez, Dr. Scacgs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

Mr. Daniels moved that the desegregation plan for the Northeast High
School attendance area be approved as presented and that the former Martin School attendance area and the former Banneker School attendance area be assigned to Garfield.

The motion was seconded by Dr. Scaggs. Mr. Bonadonna expressed objections to the motion. The motion was approved as follows:

Ayes:

Mr. Carpenter, Mr. Daniels, Mr. Rodriguez, Dr. Scaggs, Mrs. Stark

Noes:

Mrs. Blond, Mr. Bonadona, Mr. Dwyer, Mr. Lyddon

1". Parch 20, 1977

Pace t3

"Mx. Rodriguez moved that the aesecrecation plan for West Hi g h School attendance area be a pp roved as presented.

.The motio= was seconded byX.r. Car p enter and was a pp roved as follows:

Ayes:

Mrs. Blond, Mr. Carpenter, Mr. Daniels, Mr. Lvddon, Mr. Rodri guez, Dr. Scaggs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

Mr. Daniels moved that the desegeaation plan for the Lincoln High School attendance area be aP p roved as presented.

'The motion was seconded by Mrs. Stark and was a pp roved as follows:

Ayes:

Mrs. Blond, Mr. Car p enter, Mr. Daniels, Mr. Lyddon, Mr. Rodri guez, Dr. Scaggs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

Mr. Daniels moved School attendance

that area

the be a

deseare pp roved

gaastipornesPelnatnedf.or

the

Central

High

The motion was seconded b y Mr. Carpenter and was a pp roved as follows:

Ayes:

Mrs. Blond, Mr. Carpenter, Mr. Daniels, Mr. Lvddon, Mr. Rodriguez, Dr. Sca g gs, Mrs. Stark

Noes: Mr. Bonadonna, Mr. Dwyer

Mr. Car p enter moved that the desegre g ation plan for the Paseo High Soh attendance area be a p proved as presented.

The motion was seconded by Mrs. Stark and was a p proved as follows:

Ayes:

Mrs. Blond, Mr. Car p enter, Mr. Daniels, Mr. Lyddon, Mr. Rodriguez, Dr. Sca g gs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

Mr. Dan i e l s moved that the Board approve the total Pro p osed Interim Desegregation Plan: Modified Six-C dated March 18, 1977 as presented.

The motion was seconded by Mr. Carpenter and was ap p roved as follows:

Ayes:

Mrs. Blond, Mr. Carpenter, Mr. Daniels, Mr. Lyddon, Mr. Rodriguez, Dr. Scaggs, Mrs. Stark

Noes:

Mr. Bonadonna, Mr. Dwyer

e

Pace 4

•

THIS IS TO CERTIFY that the above and foregoing is a true and correct co py of an excerp t taken from the minutes of the meeting of the Board of Directors of the School District of Kansas City, Missouri, held March 20, 1977.
7-
Mildred U. LaBouff, Secretary Pro Tem, -Board of Directors, THE SCHOOL DISTRICT OF KANSAS CITY, MISSOURI

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

SCHOOL DISTRICT OF KANSAS CITY, MISSOURI

JAMES H. LYDDON, President SAMUEL J. CARPENTER, Vice-President) ANNE B. BLOND FLETCHER DANIELS JOHN ALBERT RODRIGUEZ EDWARD S. SCAGGS JOYCE ANN STARK members of and constituting a majority of the Board of Education of the School District of Kansas City, Missouri )

ROBERT R. WHEELER, Superintendent of Schools, School ) District of Kansas City, Missouri )

GREGORY SCAGGS, HELEN ELIZABETH SCAGGS and KEITH JEROME SCAGGS, minors, by their parent and next friend, Dr. Edward Scaggs

MARGARET STARK and CATHERINE STARK,) minors by their parent and next friend, Joyce C. Stark

Plaintiffs

vs.

THE STATE OF MISSOURI

HON. JOSEPH TEASDALE, Governor of the State of Missouri )

MISSOURI STATE BOARD OF EDUCATION )

ZACK BETTIS,

JOHN M. MORRIS, President

ELEANOR GRIFFITH

LARRY MEYER

DALE THOMPSON

R. JEROME WILLIAMS

)

HARVEY YOUNG, JR.,

members of the Missouri State Board)

of Education

ARTHUR L. MALLORY, Commissioner of Education of the ) State of Missouri

PARK HILL SCHOOL DISTRICT R-5 . and DR. H. RAY SHIPLEY,
Superintendent thereof

COMPLAINT
No.77-. 420 -C■ii.-1•Q"a/

NORTH KANSAS CITY, MISSOURI

)

SCHOOL DISTRICT and

DR. R. B. DOOLIN,

Superintendent thereof

SCHOOL DISTRICT OF THE CITY OF INDEPENDENCE and DR. ROBERT HENLEY, Superintendent thereof

RAYTOWN, MISSOURI CONSOLIDATED SCHOOL DISTRICT C-2, and DR. ROBERT ATKIN, Superintendent thereof

CENTER SCHOOL DISTRICT and DONALD RICHMOND, Superintendent thereof

HICKMAN MILLS CONSOLIDATED SCHOOL ) DISTRICT C-1 and JOSEPH NESBIT, Acting Superintendent thereof

GRANDVIEW CONSOLIDATED SCHOOL DISTRICT C-4 and DR. JAMES N. SHANNAHAN, Superintendent thereof )

BELTON SCHOOL DISTRICT and DR. ARTHUR DAVIS, Superintendent thereof

RAYMORE-PECULIAR SCHOOL DISTRICT R-2 and DONALD SHULL, Superintendent thereof

FORT OSAGE SCHOOL DISTRICT R-1 and RAYMOND B. PHIPPS, Superintendent thereof

LEE'S SUMMIT REORGANIZED SCHOOL DISTRICT R-7 and DR. BERNARD C. CAMPBELL, Superintendent thereof

BLUE SPRINGS REORGANIZED SCHOOL DISTRICT R-4 and DR. GALE T. BARTOW, Superintendent thereof

LIBERTY SCHOOL DISTRICT and DR. ROBERT E. BLACK, Superintendent thereof

THE STATE OF KANSAS

HON. ROBERT BENNETT, Governor of the State of Kansas

STATE BOARD OF EDUCATION OF KANSAS )

WALLACE SMITH RUTH ANN OELSNER JOHN W. FRAZIER DOROTHY GROESBECK

-2-

HAROLD H. CRIST MARILYN HARWOOD WILL T. BILLINGSLEY TIMOTHY HIEBERT KARL M. WILSON EVELYN WHITCOMB, Members of the Kansas State Board ) of Education
MERLE BOLTON, Commissioner of Education of the ) State of Kansas
SHAWNEE MISSION UNIFIED SCHOOL DISTRICT #512 and ARZELL BALL, Superintendent thereof
KANSAS CITY, KANSAS UNIFIED SCHOOL ) DISTRICT #500, and 0. L. PLUCKER, Superintendent thereof
TURNER UNIFIED SCHOOL DISTRICT #202 and DR. BOB J. FOUTES, Superintendent thereof
OLATHE UNIFIED SCHOOL DISTRICT #232 and DR. MELVIN L. WINTERS, Superintendent thereof
SOUTHEAST JOHNSON COUNTY UNIFIED ) SCHOOL DISTRICT #220 and DR. JAMES THOMPSON, Superintendent thereof
UNITED STATES DEPARTMENT OF HEALTH,) EDUCATION AND WELFARE
JOSEPH CALIFANO, JR., Secretary of the United States Department of Health, Education and Welfare
UNITED STATES DEPARTMENT OF HOUSING) AND URBAN DEVELOPMENT
PATRICIA HARRIS, Secretary of the United States Department of Housing and Urban Development )
UNITED STATES DEPARTMENT OF TRANSPORTATION
BROCK ADAMS, Secretary of the United States Department of Transportation
Defendants

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF JURISDICTION
1. This is an action for declaratory judgment and an action in equity seeking injunctive relief to redress the violation of rights guaranteed by the Constitution and laws of the United States.
2. Subject matter jurisdiction of this Court is invoked pursuant to 23 U.S.C. §1331, because the action arises under the Constitution and laws of the United States. Specifically, the action arises under 28 U.S.C. §§l343(3)(4), 1361, 2201, and 2202; 42 U.S.C. §51983 and 2000d, and the privileges and immunities, due process, and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.
3. The amount in controversy exceeds Ten Thousand ($10,000.00) Dollars.
4. Jurisdiction over the defendant State of Kansas and those defendants who are located in the State of Kansas is based upon 5506.500, R.S.Mo., in that the causes of action against the Defendant State of Kansas and other defendants who are located in the State of Kansas arise from one or more of the following:
a. Transaction of business within the State of Missouri through the arrangement to educate Kansas children in Missouri schools in exchange for payment of tuition by the State of Kansas or one of its instrumentalities or in exchange for a reciprocal transfer of students from the plaintiff school district to districts in the State of Kansas,
b. The making of contracts within the State of Missouri in that students were tranferred from Kansas
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to the plaintiff school district for education under an agreement or contract with the State of Kansas or its subdivisions,
c. The commission of tortious acts within the State of Missouri in that the Kansas defendants have all participated in constitutional violations in the nature of torts against the plaintiffs. 5. Additionally and alternatively, the Kansas defendants are parties whose joinder is necessary under Rule 19, F.R.Civ.P., because in the absence of the Kansas defendants, complete relief cannot be accorded among the remaining parties. The Kansas defendants are subject to service of process under Rule 4(f), and their joinder does not deprive the court of jurisdiction.
PARTIES 6. Plaintiff School District of Kansas City, Missouri is a body politic and corporate, organized and existing under the laws of the State of Missouri, with authority to sue and be sued. Plaintiff school district is required by Missouri law to operate the public elementary and secondary schools within its boundaries and to exercise such supervision as will best promote the interests of the schools and the students therein. Plaintiff district sues on its own behalf and on behalf of the children attending its public schools, whose educational interests and civil rights it has a right to protect. 7. Plaintiff school board members constitute a majority of the members of the Board of Education (a/k/a Board of Directors) of the School District of Kansas City, Missouri, and sue in their official capacities. Plaintiff board members have a duty to support the Constitution of the United States and are required to faithfully discharge their duties as members of the Board of Education of plaintiff school district.

8. Plaintiff Robert R. Wheeler is the duly appointed Superintendent of the School District of Kansas City, Missouri. As the chief executive officer of plaintiff school district, he is charged with responsibility for carrying out the policies and administrative duties of plaintiff school district.
9. Plaintiffs Gregory Scaggs, Helen Elizabeth Scaggs and Keith Jerome Scaggs are minor children enrolled in schools under the jurisdiction of plaintiff school district, bringing this action through their next friend Dr. Edward Scaggs, who is also a member of the Board of Education of plaintiff school district and a resident of said district.
10. Plaintiffs Margaret Stark and Catherine Stark are minor children enrolled in schools under the jurisdiction of plaintiff school district, bringing this action through their next friend Joyce C. Stark, who is also a member of the Board of Education of plaintiff school district and a resident of said district.
11. Defendant State of Missouri is one of the United States of America and is obligated to support the United States Constitution, including the duty under the Fourteenth Amendment to provide public education without racial discrimination. The State of Missouri has created, maintained and continues to maintain a state-wide system of school districts for the purpose of furnishing to its citizens under the age of 21 a system of free public education in accordance with duties imposed by the Missouri Constitution. The State of Missouri has enacted laws providing for the creation, consolidation, annexation, and dissolution of these school districts and for the changing of their boundaries; the State of Missouri has established policies, rules and regulations for the supervision and control of school districts; the State of Missouri financially supports these districts and the educational activities carried on therein.

The State of Missouri has delegated to its Department of Elementary and Secondary Education, under the supervision of the Missouri State Board of Education, specific responsibility for the supervision of public education in Missouri and for the distribution of financial aid to the public school districts of the state.
12. Defendant Joseph Teasdale is the duly elected Governor of the State of Missouri, who is charged with responsibility for assuring that the laws are faithfully executed, including United States and Missouri constitutional law.
13. Defendant Missouri State Board of Education is an entity to which the Missouri Constitution and the Missouri General Assembly have delegated the responsibility for carrying out the educational policies of the State of Missouri relating to public elementary and secondary schools, for supervising instruction in the public schools, for distributing to Missouri public school districts state and federal financial assistance and for other functions relating to public education in the state. The State Board of Education governs the Missouri Department of Elementary and Secondary Education which develops and implements rules and regulations for the operation of public elementary and secondary education in Missouri pursuant to policies adopted by the State Board of Education.
14. Defendants John M. Morris, Jr., Zack Bettis, Eleanor Griffith, Larry Meyer, Dale Thompson. R. Jerome Williams and Harvey Young, Jr. are the members of the Missouri State Board of Education and are charged with carrying out the duties and responsibilities of the Missouri State Board of Education as required by law and with supporting the Constitution of the United States.
15. Defendant Arthur Mallory is the Commissioner of Education of the State of Missouri, and is the chief administrative
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officer of the State Board of Education supervising the Department of Elementary and Secondary Education in accordance with policies, rules and regulations established by the State Board of Education and by the Constitution and laws of the State of Missouri.
16. Defendant Missouri school districts are political subdivisions of the State of Missouri, with authority to sue and be sued, and are agents of the State for purposes of providing public elementary and secondary education to students and whose boundaries have been determined in accordance with procedures established by the Missouri General Assembly and the Missouri State Board of Education.
17. Defendant Missouri school district superintendents are the chief executive officers of their res p ective school districts, charged with res p onsibility for carrying out the policies and administrative duties of their school districts.
18. Defendant State of Kansas is one of the United States of America and is obligated to uphold the United States Constitution, including the duty under the Fourteenth Amendment of the U.S. Constitution to provide public elementary and secondary education without racial discrimination. The State of Kansas has created and maintained and continues to maintain a state wide system of school districts for the purpose of providing intellectual, educational, vocational and scientific improvement to its citizens in accordance with duties imposed by the Kansas Constitution. The State of Kansas has enacted laws for the creation, consolidation, reorganization and unification of school districts and for the changing of their boundaries. The State of Kansas has established p olicies, rules and regulations for the continuing maintenance and control of schools and school districts in Kansas, including the transfer of students from one district to another, the transfer of Kansas students to public schools

in Missouri, and the transfer of Missouri students in public schools in Kansas. The State of Kansas financially supports school districts and the educational activities carried on therein. The State of Kansas has delegated to the Kansas State Board of Education general supervision over distribution of financial aid to the public school districts of the State.
19. Defendant Robert Bennett is the duly elected Governor of the State of Kansas and is charged with responsibility for the faithful execution of the laws and Constitutions of the State of Kansas and the United States.
20. Defendant Kansas State Board of Education is an entity to which the Kansas Constitution has delegated general supervision of public schools, educational institutions and all the educational interests of the state except educational functions delegated by law to the State Board of Regents. The Kansas State Board of Education a ppoints the Commissioner of Education who p rovides administrative supervision of the Kansas State Department of Education as directed by law and the Kansas State Board of Education.
21. Defendants Wallace Smith, Ruth Ann Oelsner, John W. Frazier, Dorothy Groesbeck, Harold H. Crist, Marilyn Harwood, Will T. Billingsley, Timothy Hiebert, Karl M. Wilson and Evelyn Whitcomb are the members of the Kansas State Board of Education and are charged with carrying out the duties and responsibilities of the Kansas State Board of Education as required by law and with supporting the Constitutions of the United States and of Kansas.
22. Defendant Bolton is the Commissioner of Education of the State of Kansas, and is the chief administrative officer of the Department of Education charged with responsibility for supervision and implementation of the policies, rules

and regulations established by the State Board of Education pursuant to the Constitution and laws of the State of Kansas.
23. Defendant Kansas school districts are political subdivisions of the State of Kansas and are agents of the state for the purpose of providing education to public school children.
24. Defendant Kansas school superintendents are the chief executive officers of their respective districts, charged with responsibility for carrying out the policies and administrative duties of their districts and of the State Board of Education.
25. Defendants United States Department of Health, Education and Welfare (HEW) and Joseph Califano, Jr., Secretary of the Department of Health, Education and Welfare, are responsible for the administration of laws of the United States pertaining to equality of educational opportunity, financial assistance to local school districts, desegregation of school districts, and other matters relating to the educational and social benefits of school children in the United States.
26. Defendants United States Department of Housing and Urban Development (HUD) and Patricia Harris, Secretary of the Department of Housing and Urban Development, are responsible for the administration of laws of the United States pertaining to housing, urban development, subsidized housing, and guaranteed loans for housing for the benefit of people in the United States.
27. The Defendants United States Department of Transportation (DOT) and Brock Adams, Secretary of the Department of Transportation, are responsible for the administration of laws of the United States pertaining to construction of highways and transportation facilities in cooperation with the states of Missouri and Kansas, including the approval of the designation and construction of highways and the relocation of p ersons displaced therefrom.

GENERAL ALLEGATIONS The Metropolitan Community 28. Metropolitan Kansas City covers a geographic area reaching into two states and seven counties. It contains over 50 municipalities and over 50 separate school districts. In spite of the numerous and overlapping governmental jurisdictions, Metropolitan Kansas City is essentially a single urban community. Components of modern urban life such as commerce, employment, athletics, recreation, cultural activities, utilities, public transportation, news media, and social services are carried on without being limited by governmental boundaries. State, county, municipal, and school district boundaries are crossed innumerable times each day in the course of these activities. In recognition of the fact that problems in one area of the metropolitan community affect other areas and demand area-wide solutions, governmental boundaries separating states, counties, cities, and school districts have been and are being continually bridged when necessary to solve area-wide problems. For example, planning and development for highways, housing, medical care, sewer and water projects, programs for the aged, emergency medical care, mass transportation, higher education, fire protection and law enforcement are conducted and coordinated on a metropolitan basis. 29. Although the metropolitan area is in reality a single community with economic and social problems which are shared by the entire community, the states of Missouri and Kansas have intentionally caused public education to be provided on a piecemeal basis by separate governmental units with arbitrarily determined boundaries. Both states have provided public education in a manner which has caused and increased racial segregation between defendant school districts and plaintiff district.

The Violation and Resulting Injury 30. Prior to the Supreme Court decision in Brown v. Board of Education in 1954, the states of Missouri and Kansas, and their agencies and officials, encouraged, enforced or required racial segregation in many important aspects of metropolitan life. State action sanctioned and at times required racial segregation in such areas as housing, employment, recreation, transporation and public education. One result of the segregative climate mandated or encouraged by the state defendants was the concentration of minority race persons within plaintiff school district. 31. In specific regard to public education, the state defendants created and maintained local school districts which were required to provide separate schools for white and black students in Missouri and were authorized to do so in Kansas. These school districts were the states' tools for making segregation a reality within and between school districts. In some instances, students were permitted or required to cross school district and state lines to enforce school and district segregation. The purpose and effect of the unlawful maintenance of racially se p arate schools and of other intentionally segregative state action was to concentrate minority race persons within plaintiff school district and the Kansas City, Kansas district, but not in other school districts. 32. The 1954 decision of the United States Supreme Court in Brown v. Board of Education of Topeka held that state-sanctioned racial segregation violates the Fourteenth Amendment of the United States Constitution. Thereafter, all state officials had an affirmative duty to eradicate all vestiges of state sanctioned segregation from their public school systems. 33. After 1954, a combination of voluntary and statemandated action caused a substantial amount of desegregation

in the Kansas City metropolitan area, including desegregation of the schools within the boundaries of plaintiff district. Nevertheless, although many of the more obvious segregative practices were eliminated, the state defendants have ignored their affirmative duty to eliminate all vestiges of racial segregation. Specifically, the state defendants have failed to remedy the primary effect of state-imposed racial segregation in the Kansas City metropolitan community, i.e., the concentration of minority race persons within the boundaries of plaintiff school district. In fact, the defendants, their agencies, subdivisions and officials have by various acts and refusals to act in the field of housing, and by refusing to act in such areas as school district reorganization, encouraged and maintained the racial isolation of plaintiff school district.
34. The foreseeable and intentional result of the actions and refusals to act of all defendants has been the maintenance of racially isolated and identifiable school districts and thus a racially segregated school system in the Kansas City Metropolitan Area. Sixty-seven per cent of the enrollment within plaintiff district is made up of minority race students while the student enrollment within the area encompassed by all districts who are parties hereto is less than 20% minority race. Except for the Kansas City, Kansas School District, no defendant district has more than 6% minority race student enrollment. Furthermore, as a result of the continuing effect of defendants' actions, minority race percentages within plaintiff district are increasing at a rate of 2 to 3% yearly.
35. Plaintiff school district, immediately after the Brown decision holding that the operation of a dual school system was prohibited by federal law, began planning for conversion to a unitary school system within its boundaries.

Continuously from 1955 to the present, plaintiff school district has operated a racially unitary school district, has eliminated the vestiges of racial segregation in its schools, and has attempted to provide its public school children equal protection of the laws as mandated by the U.S. Constitution. In spite of plaintiff district's efforts, there exists a state system of racially segregated school districts which continues the pre-1954 segregation of students within the metropolitan area. The school districts in the metropolitan area are racially isolated and racially identifiable when one or all defendant districts are compared with plaintiff district.
36. Plaintiff school district, its board members, and its superintendant have a right to protect the educational interests and constitutional rights of the students attending the schools of plaintiff district. The constitutional rights of the students of plaintiff district regardless of race, including the individually named plaintiff students, have been and are being violated by defendants in that these students have been forced to attend public school in a racially isolated and identifiable district as part of a racially segregated system of public education in the Kansas City Metropolitan Area. The schools of plaintiff district have been labeled by the intentionally segregative acts of defendants with a badge of inferiority which deprives students in plaintiff district of equal protection of the laws in spite of the fact that plaintiff district is operating a unitary system within its state-established and maintained boundaries.
37. Furthermore, the racially discriminatory actions of defendants have resulted in a movement of middle class families away from the plaintiff district, impacting said district with a progressively higher percentage enrollment of economically and socially disadvantaged minority race

students. This process results in increased operating expense for the plaintiff district on a per pupil basis, as the disadvantaged children are in greater need of individual attention, compensatory education, counseling and other educational services. The process also adversely affects the tax base and taxing potential within said district, to the detriment of all plaintiffs herein. The unconstitutional actions of defendants have prevented plaintiff board members and superintendent from being able to eliminate the racial isolation of plaintiff district, have severely hindered their attempts to provide adequate and equal educational opportunities, and have subjected said board members to the loss of financial support for the district and to litigation accusing them of operating an unconstitutionally segregated school district.
38. Plaintiff school district, its board members and superintendent are powerless to overcome these effects of defendants' intentionally segregative policies and practices and thereby afford to students their constitutional rights. Area-wide unlawful segregation caused the racial isolation of plaintiff district and only area-wide desegregation can undo the effects of those practices. Without a metropolitan solution to a metropolitan problem, equal protection of the laws cannot be afforded the students of plaintiff district.
39. Unless defendants are enjoined from continuing to maintain a racially segregated system of school districts in the metropolitan area, and enjoined from increasing racial segregation within that system, plaintiffs and the students whose constitutional rights the plaintiff school district and the individual board members have a duty to protect will suffer irreparable injury in a manner likely never to be undone.
The Remedy 40. The only way effectively to protect and effectively to preserve the constitutional rights of plaintiffs and all children attending the plaintiff district's schools, and the
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only way to give every student in the metropolitan area the opportunity to attend school in a school district which is not racially isolated and identifiable as either a minority or non-minority race school district is to judicially mandate reassignment of public school students among all districts which are parties to this suit. Intelligently and thoughtfully devised under the auspices of this court, such student reassignment would not only remove all vestiges of the Missouri and Kansas dual public school systems presently remaining in this metropolitan area, but also would offer opportunities to improve educational offerings available to all students, irrespective of race, and to increase the opportunity for parental involvement in . the educational process. The geography of the area, transportation systems, and the presence of existing models for intergovernmental cooperation, both within and between the two states, provide an o pportunity for effective interaction with the least possible disruption of existing school structures.
COUNT I For their claim against the States of Missouri and Kansas, and defendants Teasdale and Bennett, governors thereof, plaintiffs state: 41. Paragraphs 1-40 of the Complaint are incorporated herein. 42. The states of Missouri and Kansas, and the agencies, political subdivisions and officials thereof, have intentionally contributed to minority race concentration within plaintiff district, which has resulted in a metropolitan system of racially identifiable, isolated and segregated school districts by:
a. Enforcing racially restrictive covenants. b. Choosing not to effectively enforce federal, state and local fair housing laws.

c. Refusing to take disciplinary action against real estate brokers who have engaged in segregatory housing practices such as blockbusting and refusal to show or sell houses to minority race persons in stable, non-minority neighborhoods.
d. Refusing to take disciplinary action against financial institutions which have engaged in racially discriminatory lending policies such as redlining and unwillingness to make housing loans to members of one race in a neighborhood consisting primarily of persons of another race.
e. Participating in the relocation of persons displaced by highway construction to segregated residential areas.
f. Authorizing and participating in housing assistance programs, urban renewal programs and other programs which have caused and maintained residential and school segregation.
g • Authorizing municipalities throughout the state to adopt planning and zoning enabling statutes which facilitate exclusionary land use ordinances and regulations.
h. Taking actions which enabled communities to refuse to provide low cost housing outside the plaintiff district, permitting intentional segregation of housing projects, and permitting location of virtually all housing projects for low income families to be within the boundaries of the plaintiff district or the Kansas City, Kansas district with the intent and result of confining minority population within the plaintiff district in violation of plaintiffs' constitutional rights. WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this Complaint.

COUNT II For their claim against the State of Missouri, defendant Teasdale, Missouri State Board of Education, the individuals constituting the Missouri State Board of Education, and defendant Mallory (hereafter called Missouri state defendants), plaintiffs state: 43. Plaintiffs herewith incorporate paragraphs 1-40 of this Complaint. 44. Article IX of the Constitution of Missouri recognizes that a general diffusion of knowledge and intelligence is essential to the preservation of the rights and liberties of the people, and directs that the General Assembly "shall establish and maintain free public schools for the gratuitous instruction of all persons in this state within ages not in excess of twenty-one years..." 45. The Missouri Constitution further provides, Article IX, Section 2(a) that "the supervision of instruction in the public schools shall be vested in a state board of education..." Section 2(b) provides that the State Board of Education also "shall have such other powers and duties as may be prescribed by law." 46. The Missouri General Assembly has delegated to the State Board of Education the power to formulate policies for the Department of Elementary and Secondary Education, and to "carry out the educational policies of the state relating to public schools." §161.092 R.S.Mo. 47. The Missouri state defendants have violated plaintiffs' constitutional right to attend school in a racially non-discriminatory system of school districts by refusing to comply with their constitutional duty to dismantle the state systems of racially segregated school districts in the metropolitan area. In fact, the Missouri state defendants have affirmatively acted to perpetuate and maintain this system by:

a. Refusing to reorganize, change boundaries or transfer students in a manner which would eliminate school district segregation in the metro politan area.
b. Refusing to accept or act upon school district reorganization proposals such as the 1968 report of the Missouri School District Reorganization Commission which would have reduced racial segregation between school districts.
c. Unconstitutional application of state statutes providing for reorganization of school districts through county boards of education by allowing said county boards of education to become inactive or extinct rather than requiring that said county boards carry out their mandated responsibilities to reorganize school districts on a desegregated basis.
d. Unconstitutional application of other statutes governing school districts which effectively prevented changes in school district boundaries and thereby maintained racial segregation in the state public school system.
e. Enacting, enforcing and obeying an unconstitutional statute, 5162.421, R.S.Mo., which provides for extension of a school district's boundaries to remain coterminous with city boundaries when a city expands, but fails to include plaintiff district, the purpose and result of which have been to isolate racial minorities within the retained boundaries of plaintiff district.
f. Continuing to finance, classify and otherwise provide aid and assistance to defendant school districts in a manner which maintained the state system of segregated school districts in the metropolitan area.
g - Supporting the creation of inter-district arrangements for special education and vocational education which maintained and compounded segregation among metropolitan school districts.

WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this Complaint.
COUNT III For their claim against defendant Missouri school districts, Park Hill, North Kansas City, Independence, Raytown, Center, Hickman Mills, Grandview, Belton, RaymorePeculiar, Lee's Summit, Blue Springs, Fort Osage and Liberty, and superintendents thereof, plaintiff states: 48. Plaintiffs herewith incorporate paragraphs 1-47 of this Complaint. 49. The defendant Missouri school districts, and officials thereof, have violated plaintiffs' constitutionally protected rights, acting as agents of the state and in their own behalf, in intentionally segregating students on the basis of race and maintaining school segregation in the metropolitan area by:
a. Acting pursuant to unconstitutional state statutes in establishing and o p erating racially segregated public schools until 1957.
b. Acting pursuant to unconstitutional state statutes in transferring minority race children across school district boundary lines and paying transportation and tuition charges for said students for the purpose and with the result of maintaining racially segregated public schools until 1957.
c. Failing to fulfill their constitutional duty to dismantle the state dual school system and to eliminate the results of their unconstitutional actions.
d. Maintaining and contributing to school segregation in the metropolitan area by organizing a joint cooperative vocational educational program serving an area the boundary lines of which were established with the purpose and result of segregating students on the basis of race.

e. Engaging in discriminatory employment practices which have caused school districts in the metropolitan area to be racially identifiable on the basis of the race of teachers and administrators assigned to schools.
f. Maintaining segregated school districts in the metropolitan area by refusing to adopt policies and practices to eliminate confinement of minority race students within the plaintiff District and by intentionally adopting policies and practices which discourage attendance of minority race students.
g - Obstructing and preventing school district reorganization, boundary line changes, consolidations and mergers which would have had the effect of reducing the racial isolation of plaintiff district. 50. The defendant Missouri school districts, as agents and instrumentalities of the State of Missouri, share responsibility with the State for violations of plaintiffs' constitutional rights by the State and its officials. The defendant school districts are, to a substantial degree, elements and products of the State of Missouri's unconstitutional system of segregated education in the Kansas City Metropolitan Area. As agents and subdivisions of the state the defendant school districts are necessarily involved in and a part of the inter-district segregation caused by the State and must be included in an inter-district remedy, even absent any finding that they have committed specific violations on their own initiative. WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this Complaint.
COUNT IV For their claim against the State of Kansas, defendant Bennett, Kansas State Board of Education, Kansas State Board of Education members and defendant Bolton (hereafter called Kansas state defendants), plaintiffs state:

51. Paragraphs 1-40 are incorporated herein. 52. The Kansas Constitution p rovides for the intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools. Art. 6, 51. 53. The Kansas Constitution also provides for the Kansas State Board of Education to have general supervision of public schools "and all the educational interests of the state," except for functions delegated to the Kansas State Board of Regents. Art. 6, 52. 54. The Kansas legislature has delegated to the Kansas State Board of Education the administration of state laws relating to the general supervision of public schools. 727513(b), K.S.A. 55. The Kansas state defendants, in violation of their constitutional duties, have intentionally deprived Plaintiffs and all of the students served by the School District of Kansas City, Missouri of their civil rights in that said defendants, acting pursuant to an unconstitutional state statute, established and operated a system of racially segregated schools within the State of Kansas until 1957 which tended to increase racial concentration within plaintiff district. The defendant Kansas school districts, with the exception of Kansas City, Kansas, did not have or provide facilities to educate black children, thereby causing blacks to live in plaintiff district. 56. The Kansas state defendants have further contributed to cause and maintain racially identifiable school districts within the metropolitan area by acting pursuant to an unconstitutional state statute in entering into contracts for the transfer of black students across school district boundary lines for the purpose and with the result of creating and maintaining segregated public schools. Students were transferred between districts within Kansas for said purpose,

and were also transferred across the state line into plaintiff district, with transportation financed by the Kansas defendants, thereby contributing to the racial identifiability of plaintiff district and of all districts in the metropolitan area.
57. The Kansas state defendants have failed to meet their constitutional duty to dismantle the segregated system of school districts in the Kansas portion of the metropolitan area, and have failed to meet their constitutional duty to eliminate the remaining vestiges of their past intentional segregation of students on the basis of race. The intent and result of the failure to remedy their constitutional violation has been to create and maintain a system of segregated school districts in the metropolitan area in violation of plaintiffs' constitutional rights.
WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this Complaint.
COUNT V For their specific claim against Defendant Kansas school districts, Shawnee Mission, Kansas City, Turner, Southeast Johnson County and Olathe and the superintendents thereof, plaintiffs state: 58. Plaintiffs incorporate herein paragraphs 1-47 and 51-57 of the Complaint. 59. The defendant Kansas school districts, and officials thereof, have, acting under color of state law and as agents of the State Board of Education in carrying out state educational policy, intentionally segregated and maintained segregation of school districts in the metropolitan area, including plaintiff district. 60. Defendant Kansas school districts, and their officials, under color of an unconstitutional state statute, have acted as agents of the State of Kansas by transferring

students across boundary lines, including across state lines into plaintiff district, for the purpose and with the result of creating and maintaining segregated schools.
61. Defendant Kansas school districts and their officials have failed to fulfill their constitutional duty to dismantle the system of segregated public education in the metropolitan area, and have failed to remedy the constitutional violation by removing the vestiges of their past intentional acts of segregation in that racially identifiable school districts, whose racial identifiably is the result of those past actions, remain in the metropolitan area.
62. Defendant Kansas districts, with the exception of the Kansas City, Kansas district, have purposefully adopted curriculum, policies and practices which discourage attendance of minority race students, with the intent and result of causing and maintaining racially identifiable school districts in the metropolitan area and segregating minority race students within plaintiff District from non-minority race students attending schools in the defendant districts.
63. Defendant Kansas districts and their officials have engaged in racially discriminatory employment practices which have had the result of causing and maintaining racial identifiably of school districts in the metropolitan area on the basis of the race of faculty and administration assigned to the schools of the districts.
64. The defendant Kansas school districts, as agents and instrumentalities of the State of Kansas, share responsibility with the State for violations of plaintiffs' constitutional rights by the State and its officials. The defendant school districts are, to a substantial degree, elements and products of the State of Kansas' unconstitutional system of segregated school districts in the Kansas City Metropolitan Area. As agents and subdivisions of the state the defendant school districts are necessarily involved in and a part of the interdistrict segregation caused by the State and must be included

in an inter-district remedy, even absent any finding that they have committed specific violations on their own initiative.
WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this Complaint.
COUNT VI For their claim against HEW, plaintiffs state: 65. Paragraphs 1-40 are hereby incorporated herein. 66. The U.S. Department of Health, Education and Welfare and the Secretary thereof have an affirmative duty under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, to administer programs in a manner which will prevent and encourage elimination of racial segregation in public schools. They have intentionally violated this affirmative duty and have instead intentionally caused greater segregation in the Kansas City metropolitan area by seeking racial balancing of the schools within plaintiff district only and:
a. Choosing to ignore the necessity and practicality of desegregation within the metropolitan community,
b. Acting in a manner which tends to increase the racial isolation of plaintiff district,
c. Refusing to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. §4331,
d. Taking actions which have the foreseeable result of increasing residential and employment segregation and in turn causing increased segregation of school districts in the metropolitan area and thereby increasing the number of students confined to racially isolated' school districts.
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e. Refusing to require school authorities in the metropolitan area to desegregate on a metropolitan basis as a condition of receiving federal funds. WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this Complaint.
COUNT VII For their claim against the Department of Transportation and Brock Adams, secretary thereof, plaintiffs state: 67. Paragraphs 1-40 are hereby incorporated in Count VII. 68. The United States Department of Transportation and the Secretary thereof have an affirmative duty to carry out their responsibilities in a manner which will reduce, eliminate and not increase racial segregation under the provisions of 42 U.S.C. 2000d. 69. Said defendants have, in the course of constructing highways, relocated, or permitted recipients of federal aid to relocate, population in a manner which has promoted residential housing segregation by such actions as relocating minority race persons from integrated neighborhoods to predominately minority neighborhoods and non-minority persons to predominately non-minority neighborhoods. The result of the actions of the Department of Transportation has been to segregate minorities and increase racial identifiability of the school districts in the metropolitan area, and said defendants have thereby violated plaintiffs' right to equal protection of the laws. WHEREFORE, plaintiffs pray for the relief stated at the _conclusion of this Complaint.
COUNT VIII For their claim against the Department of Housing and Urban Develo pment and Patricia Harris, secretary thereof, plaintiffs state:

70. Paragraphs 1-40 are incorporated in Count VIII by this reference.
71. The United States Department of Housing and Urban Development and the Secretary thereof, who have an affirmative duty to prevent, reduce and not increase racial segregation, have financed, administered and promoted policies in the field of housing, urban renewal, urban development, housing loan guarantees, housing loan insurance, and subsidies to low or moderate income housing, with the intent and result of promoting residential segregation which in turn increased racial isolation and identifiability of school districts in the metropolitan area and thereby racially discriminated against the public school children in plaintiff district. Said defendants have violated or have permitted recipients of federal funding to violate the constitutional rights of plaintiff district's children by:
a. Failing to consider racial isolation in choosing sites for low income housing projects.
b. Locating most low income housing projects within plaintiff district.
c. Relocating persons displaced by housing or redevelopment projects into areas within the plaintiff district and in neighborhoods which were predominately of the same race as the persons moved.
d. Establishing guildelines for housing loan guarantees and insurance that required, until 1948, and thereafter permitted racial residential segregation.
e. Continuing to provide housing funds to suburban communities which effectively prevented minorities from obtaining housing therein by means of various ordinances and restrictions.
f. Continuing to fund and failing to require local housing agencies to consider and prevent racial segregation by their policies and practices.

WHEREFORE, plaintiffs pray for the relief stated at the conclusion of this complaint.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for the following relief from this Court:
1. That the Court advance this matter on its docket, order a hearing at the earliest practicable date, and cause this case to be in every way expedited, so that any action ordered by the Court may be implemented as soon as possible.
2. That with reference to the state defendants the court declare that:
a. Prior to 1954 the state defendants required, sanctioned or condoned racial segregation in many vital areas of metropolitan life such as housing, employment, recreation, transportation and public education;
b. One result of this state sanctioned segregation of the races was the concentration and isolation of large numbers of minority race persons within plaintiff school district;
c. Although many of the more obvious state sanctioned segregative practices of the pre-1954 era were eliminated thereafter, the state defendants and each of them had an affirmative duty under the United States Constitution to eliminate from the Kansas City Metropolitan Community all vestiges of the previously state sanctioned separation of the races, particularly in public education;
d. The state defendants have failed to carry out their affirmative duty to eradicate the

vestiges of state imposed segregation from public education in the metropolitan area in that plaintiff district is racially identifiable and racially isolated as a result of these defendants' unlawful segregative practices;
e. Therefore the state defendants and each of them have denied to plaintiffs the equal protection of the laws guaranteed to them by the 14th Amendment to the United States Constitution and 42 U.S.C. 2000d. 3. That with reference to the federal defendants the court declare that:
a. The federal defendants and each of them, in violation of their constitutional and statutory duties, have acted or failed to act in such a manner as to:
(1) Cause and contribute to residential segregation and to segregation within and between the school districts of the K. C. Metropolitan community and
(2) Aggravate and intensify the previously described racial isolation and racial identifiability of plaintiff district; b. Therefore, the federal defendants have either acted in excess of their lawful authority or have failed to act consistently with their prescribed powers and duties under the law. 4. That this Court enter its order: a. Enjoining all defendants from taking further action which contributes to or aggravates the racial isolation and racial identifiability of plaintiff district; b. Requiring the defendant state boards of education, and any other party hereto who desires to do so, to prepare and submit to the Court a

plan for the inter-district assignment of students which would eliminate the racial isolation and racial identifiability of plaintiff district resulting from the unconstitutional past and present actions of the defendants herein and would eliminate the racial identifiability of all other school districts in the metropolitan area;
c. Requiring all defendants, state and federal, to prepare and submit to the Court statements explaining how each defendant will administer its affairs in the future in the Kansas City metropolitan area so as to reduce and eventually eradicate the effects of previously imposed segregation;
d. Entering a decree granting whatever remedial relief the Court finds appropriate to correct the conditions caused by the violations established.
e. Awarding to plaintiffs their costs of litigation, including reasonsable fees for attorneys, accountants, expert witnesses, and printing;
f. For such other and further relief as the Court deems proper.
James Borthwick
irley Kgeeler Blackwell Sanders Matheny Weary & Lombardi Five Crown Center, 2480 Pershing Road Kansas City, Missouri 64108 474-5700
Taylor Fields North', Colbert & Fields 221 Professional Building 1103 Grand Kansas City, Missouri 64106
//)
v`',212
/ Robert E. Manley 4500 Carew Tower Cincinnati, Ohio 45202 Attorneys for Plaintiffs

 
 In the Cause of Kalima Jenkins, et al.
vs. State of Missouri, et al.
Case No. 77-0420-CV-W-4

Report of the Desegregation Monitoring Committee for the Period July 1, 1988 - June 30, 1989

Eugene E. Eubanks, General Chairperson

Budget Committee

Desegregation Committee

Kenneth Kraft, Chair Patricia Jordan Tom Bixby

James Oglesby, Chair Javier Perez, Jr. Susan Stanton

Education Committee

VIDT Committee

Miguel Sancho, Chair Deborah Neal Ed Drake

Carl DiCapo, Chair Agapito Mendoza Charles James

TABLE OF CONTENTS
ACTIVITY
BUDGET
Introduction Section I-Year Three Follow-up Section II-Capital Improvements Program Section III-Monitoring Committee Section IV-KCMSD & State Funding Section V-Year Four Preliminary Section VI-Commentary Section VII-Recommendations
DESEGREGATION
Total Student Membership Racial Compliance Standard Ninety-Percent Minority Schools Students in Schools Time Schedule for CIP Projects Recruitment Placement
EDUCATION
Administration The Board Administrative Reorganization Construction & Renovations: The PMT Infrastructure: Personnel Operation Infrastructure: Purchasing Infrastructure: Student Recruitment & Assignment to
Neighborhood Schools Infrastructure: Transportation Magnet Programs Effective Schools Program AAA Implementation, Class Size, Planning Time Magnet Programs & Themes Student Achievement Staff Development
YIDT
DMC STAFF OPERATIONS

PAGE
2
4 12 16 17 19 23 26
27 28 29 30 31 32 34
39 40 41 43 45 47
47 48 49 51 52 53 56 58
59
61

A.
Budget Subcommittee Report to the Court for Year Four
Contents Introduction Section I — Year Three Follow—Up
Section II — Capital Improvement Program Section III — Monitoring Committee
Section IV — KCMSD and State Funding Section V — Year Four Preliminary Section VI — Commentary Section VII — Recommendations

INTRODUCTION
As the end of Year Four of the desegregation plan draws to a close it can be safely said that some progress has been made, especially in the areas of financial services and physical facilities. New leadership in these areas show promise for the future, however, significant change requires the cooperation of persons at all administrative levels. Attitudes and actions must change much more in a positive way if the desegregation plan is to be fully implemented in a cost-effective manner. The jury is still out on the cost-effective use of the funds made available by the court.
It is taking an inordinate length of time for the District to get its administrative house in order and at this time the new organizational structure has not caused positive change in this area. As has been previously reported, the District changed to a modified accrual basis of accounting for year one. It is still going through a process of change in Year Four with no significant improvement in the district's financial reporting functions.
In September 1988, The Hall Family Foundations made a second grant to the district in the amount of $676,763 to implement the MSA applications programs for nine mainstream subsystems of purchasing, accounts payable and fixed assets, including a management system to control the inventory of moveable equipment. (See Exhibit A.) The implementation of these programs is not scheduled for final completion until November 1989. The effectiveness and efficiency of these new programs will hopefully be evident in Year Five of the plan.
The District has a major problem in that more attention needs to be given to eliminating the significant number of pieces of paper which require processing. The District has lost control over its system of requisition and purchasing. Although this problem is recognized by some persons, it is certainly not true of those persons who are in a real position to affect change. The answer does not lie in the employment of additional personnel.
2

The financial data presented herein is based on financial data submitted by the District as of March 31, 1989•
3

I SECTION I - YEAR THREE FOLLOW-UP

The report submitted to the Court in July 1988, for Year Three included all expenditures and encumbrances as of April 30, 1983. This report will be presented in two parts: July 1, 1987 through June 30, 1988, and July 1, 1987 through March 31, 1989. The purpose of this presentation is to clearly show how the District has failed to expend the funds allocated for the year in a timely manner; failed to encumber all outstanding obligations as of June 30, 1988, including personnel obligations; and because of the accrual basis of accounting is extending the fiscal year indefinitely.

AAA ACHIEVEMENT July 1, 1987 through June 30, 1988

Budget

Elem.

$3,471,033

Middle

343,336

Secondary

437,298

Lib.-Global 916,006

Lib.-School

Based 1,124,941

Total $6,292,614

Expenditures
$ 3,140,629 75,717
404,768 636,589
749,901
$ 5,007,504

Encumbrances

$

16,593

45,544

0

113,100

333,897

$

509,134

Unobligated Balance
$ 313,811
222,075 32,530
166,317
41,143
$ 775,876

July 1, 1987 through March 31, 1989

Budget

Elem.

$3,502,971

Middle

302,868

Secondary

445,828

Lib.-Global 916,006

Lib.-School

Based 1,124,941

Total $6,292,614

Expenditures
$ 3,132,875 120,020 408,872 780,596
1,052,673
5,495,036

Encumbrances

$

0

5,197

0

9,163

27,025

41,385

Unobligated Balance
$ 370,096 177,651
36,956 126,247
45,243
$ 756,193

Some time between December 1, 1988, and March 31, 1989, the District reallocated the budget allotments for the fiscal year ending June 30, 1988. No reason is given by the District why the budget allotments were changed. It is evident from the figures presented above that the original allocations would not be exceeded. Also, since the end of the fiscal year expenditures and/or encumbrances have been increased $19,683. In addition, the total budget will be underspent by 12%.

REDUCTION IN ELEMENTARY AND SECONDARY CLASS SIZE

July 1, 1987 through June 30, 1988

Budget

Expenditures

Encumbrances

Unobligated Balance

Elem.
Jr. High Sr. High

$3,659,747 2,496,994 2,293,394

$ 2,972,463 1,913,489 2,183,637

Total $8,450,135

7,074,589 $

0

687,284

0

578,505

0

109,757

1,375,546

July 1, 1987 through March 31, 1989

Budget

Elem. Jr. High Sr. High

$3,659,747 2,496,994 2,293,394

Total $8,450,135

Expenditures
$ 2,448,800 1,592,243 1,316,257
$ 5,357,300

Encumbrances

$

0

0

0

Unobligated Balance
$ 1,210,947 904,751 977,137
$ 3,092,835

The unreliability of the financial information submitted by the District is again quite evident in the above figures. Since this program component deals only with salaries and benefits for the fiscal year, errors in posting salaries amounting to $1,717,289 or almost four monthly payrolls is an indictment of the system. The unobligated balance of 36.6% of the budget is also an indictment of the budgeting process.

5

SUMMER SCHOOL July 1, 1987 through June 30, 1988

Budget

Elem. Jr. High Sr. High

3 674,806
355,909 "65,349

Total $1,295,764

Expenditures

$

532,199

313,217

263,186

$ 1,168,602

Encumbrances

$

4,41?

532

567

$

5,518

Unobligated Balance

$

88,188

37,160

<3,704>

$ 121,644

July 1, 1987 through March 31, 1989

Elem. Jr. High Sr. High

Budget
$ 674,806 355,909 265,049

Expenditures
598,821 338,318 276,287

Unobligated

Encumbrances

Balance

$

0$

75,985

0

17,591

0

<11,238>

Total $1,295,764

1,213,436

$

82,338

Budget $1,826,964

FULL DAY KINDERGARTEN July 1, 1987 through June 30, 1988

Expenditures $ 1,312,656

Encumbrances 5,938

Unobligated Balance

$

508,370

Budget $1 826 964

July 1, 1987 through March 31, 1989

Expenditures $ 1,328,858

Encumbrances 1,251

Unobligated Balance

$

496,855

Here is another indication where the expenditures and/or en cumbrances were increased by $11,515 after the close of the fiscal year. The budget for Year Three was increased by $182,508 over Year Two, the expenditures were $183,425 less and the unobligated balance is 27.2% as compared to 7.6% for the previous year. With the wide variances questions arise concerning the budget process.

0

Budget $233,759
M21=1.1=111•MONEMMO
Budget
$233,759

BEFORE AND AFTER SCHOOL TUTORING July 1, 1987 through June 30, 1983

Expenditures 138,034

Encumbrances

Unobligated Balance

$

44 , 302

July 1, 1987 through March 31, 1989

Expenditures 188,034

Encumbrances

$

426

Unobligated Balance
<3,318>

Some time between July 1, 1988, and November 30, 1988, the expenditures and/or encumbrances were increased $25,844. Since December 1, 1988, there has been an additional increase of $21,777, which has resulted in an overexpenditure of $3,319. Since the program ends with the fiscal year, these adjustments can only be because of errors. Again, indicative of the unreliability of financial data being submitted by the District.

Budget $3,102,178

EARLY CHILDHOOD DEVELOPMENT
July 1, 1987 through June 30, 1988

Expenditures $ 2,639,78T

Encumbrances 16,370

Unobligated
Balance
446,021

Budget
$3,102,178

July 1, 1987 through March 31, 1989

Expenditures
2,754,363

Encumbrances
6,071

Unobligated Balance
341,744,

Since July 1, 1988, the District has again shown an increase in expenditures and/or encumbrances of $103,000. The unobligated balance is over 11%.

Since July 1, 1988, the District has continued to expend funds other than to clear outstanding obligations. The additional expenditures total $786,152. The unobligated balance is 9.1%.

LONG RANGE MAGNETS

July 1, 1987 through June 30, 1988

Budget

Expenditures

Unobligated

Encumbrances

Balance

Lincoln

Middle $ 1,854,325

Sch. of the

Arts

1,336,939

Program and

Admin.

13,946,729

Korte, etal

Ext. Day

200,000

Magnet

Transp.

0

Total $17,337,993

$ 1,532,389 1,107,725 7,168,970 183,293 5,563,035
$ 15,555, 412

$

46,595 $ 275,341

28,012

201,202

2,065,556

4,712,203

24,364

<7,657>

0 <5,563,035>

$ 2,164,527

$ <381,946>

July 1, 1987 through March 31, 1989

Budget

Expenditures

Unobligated

Encumbrances

Balance

Lincoln

Middle $ 1,854,325

$ 1,657,219

$

Sch. of the

Arts

1,336,939

1,257,656

Program and

Admin. 13,949,328

11,244,535

Korte, etal

Ext. Day

200,000

207,515

Magnet

Transp. 4,190,000

5,931,040

<1,405> $

198,511

25,450

53,833

486,722

2,218,071

349

<7,864>

0

<1,741,040>

Total $21,530,592 $ 20,297,965 $

511,116

$ 721,511

It should be noted that unobligated balance of Program and Administration is 15.9%, whereas the Magnet Transportation expenditures reflect a 41.5% overexpenditure.

9

Budget $30,000

PUBLIC RELATIONS July 1, 1987 through June 30, 1988

Expenditures 26,986

Encumbrances 0

Unobligated Balance
3,014

Budget $30,000

July 1, 1987 through March 31, 1989

Expenditures 33 321

Encumbrances

Unobligated Balance
<3,321>

It is assumed that the overexpenditure of $3,321 will be absorbed in the operating budget.

Budget $957,700

INTEREST COST July 1, 1987 through June 30, 1988

Expenditures 957,647

Encumbrances 0

Unobligated Balance

$

53

The above figures have not been changed over the period July 1, 1988, through March 31, 1989.

Budget $454,687

RELOCATION COSTS July 1, 1987 through June 30, 1988

Expenditures 308,240

Encumbrances

$

0

Unobligated Balance
$ 146,447

Budget $454,687

July 1, 1987 through March 31, 1989

Expenditures 319,768

Encumbrances <2,110>

Unobligated Balance
$ 137,029

10

SUMMARY OF YEAR THREE

July 1, 1987 through March 31, 1989

Program

Budget

Expenditures

Unobligated

Encumbrances

Balance

AAA

$ 6,292,614 $ 5,495,036 $

Reduce

Class Size 8,450,135

5,357,300

Summer Sch. 1,295,764

1,213,426

Full Day K 1,826,964

1,328,858

3/A Sch.

Tutoring

233,759

ECE

3,102,178

236,651 2,754,363

Eff. Schls. 6,555,000

5,866,281

36-7 Mags. 12,257,529

11,106,408

L—R Mags. 21,530,592

20,297,965

Pub. Rel.

30,000

33,321

Int. Cost

957,700

957,647

Relocation

Costs

454,687

319,768

41,385 $ 756,193

0 0 1,251

3,092,835 82,338
496,855

436 6,071 91,203 32,654 511,116
0 0

<3,318> 341,744
597,516 1,118,467
721,511 <3,321> 53

<2,110>

137,029

Total $62,986,922

$54,967,024

$681,996

$7,337,902

Of the total program budget for Year Three, 11.6% remains unobligated as of March 31, 1989.

11

SECTION II - CAPITAL IMPROVEMENT PROGRAM

CAPITAL IMPROVEMENT PROGRAM - PHASE V

July 1, 1987 to March 1, 1989

School

Budget

Total Anticipated Costs

Over<Under> Budget

SE Annex

$

New Faxon

Long, Phillips

Meservey

Melcher

N. Rock Cr./

Korte

SW High PMT Costs

899,973 4,145,297
1,269,320 1,482,950
2,027,463 9,451,793
886,733

1,055,414 4,217,090
1,540,310 1,390,210
3,285,307 11,378,024
866,733

$ 155,441 71,792
270,990 <92,741>
1,257,845 1,926,232

Total

$20,163,529

23,753,087

$3,589,558

Included in the above figures are the following costs:

Budget

Total Anticipated Costs

Over<Under> Budget

Const.

$16,420,366

$

19,083,719

Asbestos

Abatement

422,683

2,378,855

Soils, Surveys,

etc.

110,718

109,135

Contingency

934,163

0

Arch. Fees

1,041,272

1,100,261

Advertising

7,200

9,088

Furniture

340,396

185,297

PMT Costs

886,733

886,733

$2,663,353
1,956,173
<1,583> <934,163>
58,989 1,888
<155,099> 0

Total

$20,163,529

23,753,087

$3,589,558

To date, $9,313,324 is under contract. Of the total anticipated costs, 31% has been expended. The estimated PMT costs are 4.6% of $19,276,804 ($20,163,529 less $886,733). Architect's fees are an average 5.76% of the anticipated construction costs.

12

CAPITAL IMPROVEMENT PROGRAM — PHASE VI

July 1, 1987 to March 1, 1989

School

Budget

Total Anticipated Costs

Dver<Jnder> Budget

New Knotts $ 4,223,675

$

4,597,936

New Attucks

4,237,029

4,139,890

King Middle

926,222

916,991

New Pitcher

5,845,389

5,709,562

Garfield

3,618,751

3,744,095

New SE I Elem. 5,981,045

5,904,650

Nowlin Middle. 2,711,391

3,594,138

Paseo High

14,558,247

17,285,242

Three Trails 1,251,641

1,554,931

K.C. Tech.

14,129,144

17,307,141

Troost

2,448,123

2,822,617

Wheatley

1,414,142

2,148,770

Middle Sch. I 7,494,600

7,340,682

Woodland

4,377,620

4,264,902

Weeks

721,293

909,107

PMT Costs

3,401,162

3,401,162

$ 374,311
<97,140> <9,231>
<132,827> 125,343 <76,395> 882,747
2,726,995 303,290
3,177,997 374,493 734,628
<153,918> <113,051>
187,814 0

Total

$77,339,476

$

85,641,866

$8,302,390

Included in the above figures are the following costs:

Budget

Total Anticipated Costs

Over<Under> Budget

Const.

$61,911,519

$

70,122,259

Asbestos

Abatement

945,286

5,044,555

Soils, Testing,

etc.

486,181

526,526

Contingency

3,192,979

0

Arch. Fees

3,906,270

3,919,542

Advertising Furniture

18,000
3,478,079

19,262 2,608,559

PMT Costs

3,401,162

3,401,162

$8,210,740
4,099,270
40,345 <3,192,979>
13,272 1,262
<869,520> 0

Total

$77,339,476

85,641,866

$8 302 390

To date, $12,958,109 is under contract. Of the total anticipated costs, 2.2% has been expended. The estimated PMT costs are 4.6% of $73,938,314 ($77,339,476 less $3,401,162). Architect's fees are an average 5.6% of the anticipated construction costs.

13

CAPITAL IMPROVEMENT PROGRAM — PHASE VII

July 1, 1987 to March 1, 1989

School

Buds-et

Total Anticipated Costs

Over<Under> Budget

East High

7,496,505

NE Middle

7,711,627

Richardson

1,467,631

SE High

6,849,930

Van Horn

6,559,681

Westport Mid. 5,327,597

Westport High 7,556,023

Meservey

859,122

East High

Stadium

470,597

SE High Stad.

514,368

Linwood

930,566

Linwood West 1,138,437

New SE II Elem.5,080,232

New SE III

Elem.

6,181,788

New Elem. I

4,325,743

New Elem. II 4,325,743

New Elem. III 4,325,743

Norman Admin.

Ctr.

3,422,654

PMT Costs

3,429,023

8,345,455 7,988,745 1,594,566 9,557,084 8,1514,841 5,755,126 8,345,288
902,099
479,584 517,469 1,795,414 1,295,299 5,147,297
6,054,844 4,236,936 4,236,936 4,236,936
3,563,331 3,429,023

$ 848,950 277,118 226,935
2,707,154 1,595,160
427,530 789,266
42,977
8,983 3,101 864,848 156,862 67,064
<126,944> <88,807> <88,807> <88,807>
140,677 0

Total

$77,973,009

$

85,363,342

$7,763,266

Included in the above figures are the following costs:

Budget

Total Anticipated Costs

Over<Under> Budget

Const.

$63,292,439

$

67,309,006

Asbestos

Abatement

1,291,739

9,098,443

Soils, Testing,

etc.

441,090

438,205

Contingency

3,498,943

0

Arch. Fees

4,007,483

3,946,978

Advertising

21,600

21,600

Furniture

1,990,692

1,493,019

PMT Costs

3,429,023

3,429,023

$4,016,566
7,806,704
<2,885> <3,498,943>
<60,505> 0
<497,673> 0

Total

$77,973,009

$

85,363,342

$7,763,266

14

To date, $3,372,932 is under contract. Of the total anticipated costs, 0% has been expended. The estimated PMT costs are 4.5% of $74,543,985 ($77,973,009 less $3,429,023). Architect's fees are an average 5.7% of the anticipated construction costs.
15

SECTION III MONITORING COMMITTEE The Budget Subcommittee exercised oversight responsibility for the budget of the Monitoring Committee. A report of the financial activities of the DMC will be included in the Executive Secretary's report for Year Four. The DMC contracted with Herman Ray, certified Public Accountant, to audit the DMC records for Years One through Three. There were no discrepancies found in the records or the transactions. The only recommendation was as follows: "We recommend that a general ledger be maintained. This can be accomplished by using the computer that has been leased by the committee. A general ledger provides better control over accounting transactions." The committee is in the process of implementing this recommendation. In April 1989, the DMC contracted with Robert Knight, Certified Public Accountant, to work for the Budget Subcommittee on a part — time basis. He will be doing the statistical analysis of financial data, implementation of the general ledger system and such other activities as may from time to time be needed. He works under the direction of the Budget Subcommittee.
16

SECTION IV

KCMSD AND STATE FUNDING — PROGRAMS
The plan developed cooperatively between the State and the KCMSD, by which the State could reimburse the KCMSD for the State's share of the expenditures incurred in the implementation of the desegregation plan for Year Three, was the same as that used for Years One and Two.
It is again noted that the KCMSD did not provide the required semi-monthly drawdown reports in a timely manner, but did, however, continue to make periodic withdrawals from the two bank accounts. Failure by the KCMSD to provide the required reports handicapped both the DMC and the State in carrying out their respective responsibilities in regard to the withdrawal of state funds.
A summary of the KCMSD and State contributions to the desegregation plan by program components for Year Three as of November 30, 1988, is as follows:

Component

Total Expenditures

AAA

$

Reduced Class Size

Summer School

Full Day Kindergarten

3/A School Tutoring

Early Childhood Dev.

Effective Schools

1986-87 Magnets

Long Range Magnets

Magnet Transportation

Public Relations

Interest Cost

Relocation Cost

5,510,197 5,360,641 1,213,426 1,326,742
214,787 2,752,151 5,815,218 11,051,201 13,682,397 5,898,288
33,320 957,647
319,768

Total

$54 135 783

KCMSD
Share
$ 1,377,549 1,340,160 652,098 331,686 53,697 688,037 1,453,805 2,762,800 5,233,393 2,661,538 10,820 957,647 79,942
$17,603,172

State Share
$ 4,132,648 4,020,481 561,328 995,056 161,090 2,064,114 4,361,413 8,288,401 8,449,004 3,236,750 22,500 0 239,826
$36,532,611

An explanation is in order since the above figures were presented as of November 30, 1988. Since December 1, 1988, the District in cooperation with the State changed the procedure for

17

the monthly bank drawdowns. The District has gone to a daily drawdown instead of the semi-monthly. However, in the process they did away with any regular drawdown reports and use instead a general reconciliation at the end of the month. There is no way the DMC can make heads or tails out of the reconciliation without substantial backup information. Since more than one year is involved it complicates matters. The District has been asked to submit to the DMC and the State the drawdown reports supporting the withdrawals for the months of December through April. We have yet to receive the reports.

KCMSD AND STATE FUNDING - CAPITAL IMPROVEMENTS
A summary of the KCMSD and State contributions to the support of the desegregation plan for capital improvements for Phases I through VII, as of April 30, 1989, is as follows:

Projects

Total Expenditures

Project Mgmt. Team $ 5,577,506

Cap. Facility Planners 724,036

Phase I & II

36,142,550

Phase III

14,593,974

Phase IV

19,648,336

Jewish Comm. Ctr.

6,693,344

Site Acquisitions -

IV-VII

428,546

LRCIP-IV B

1,422,312

LRCIP-CIP Staging

1,772,854

LRCIP-Phase V

7,953,632

LRCIP-Phase VI

2,972,716

LRCIP-Phase VII

227,094

Asbestos

98,408

Total

$98,255,308

KCMSD Share
$ 2,788,753 362,018
18,071,275 1,716,644 9,824,168 3,346,672
214,273 711,156 886,427 3,976,816 1,486,358 113,547
98,408
$43,596,515

State Share
$ 2,788,753 362,018
18,071,275 12,877,330
9,824,168 3,346,672
214,273 711,156 886,427 3,976,816 1,486,358 113,547
0
$54,658,793

18

SECTION V — YEAR FOUR PRELIMINARY

AAA ACHIEVEMENT July 1, 1988 through March 31, 1989

Budget

Schools

$4,182,438

Library

Resources 1,725,860

Total $5,908,298

Expenditures $ 2,263,740
688,021 $ 2,951,761

Encumbrances

$

0

299,413

299,413

jnobligated 3a lance
$ 1,918,698 738,426
$ 2,657,124

REDUCED CLASS SIZE July 1, 1988 through March 31, 1989

Budget

Elem. Jr. High Sr. High

$4,174,159 2,024,201 2,588,831

Total $8,787,191

Expenditures
$ 1,757,243 908,571 741,218
$ 3,407,032

Encumbrances

$

0

0

0

$

0

Unobligated Balance
$ 2,416,916 1,115,630 1,847,613
$ 5,380,159

SUMMER SCHOOL

July 1, 1988 through March 31, 1989

Budget

Expenditures

Encumbrances

Unobligated Balance

Elem.

$ 561,019

$

Jr. High

383,815

Sr. High

304,737

398,187 $ 333,679 227,435

0$ 0 0

162,832 50,136 77,302

Total $1,249,571

$

959,301 $

0 $ 290,270

Budget $1,773,185

FULL DAT KINDERGARTEN July 1, 1988 through March 31, 1989

Expenditures 820,618

Encumbrances 1,978

Unobligated Balance
$ 950,589

19

Budget $600,000

EXTENDED DAY July 1988 through March 31, 1989

Expenditures 262

Encumbrances 5,324

Unobligated Balance
332,063

Budget $3,928,897

EARLY CHILDHOOD DEVELOPMENT July 1, 1988 through March 31, 1989

Expenditures $ 1, 91,714

Encumbrances $

Unobligated Balance
$ 1,8 14 14 ,078

Budget $6 680 000

EFFECTIVE SCHOOLS July 1, 1988 through March 31, 1989

Expenditures $ 3,463,118

Encumbrances

$

490,589

Unobligated Balance
$ 2,726,293

1986-87 MAGNET SCHOOLS July 1, 1988 through March 31, 1989

Budget
Swinney/ Volker $ 3,885,222
SW Cluster 5,679,325 Linc. Acdy. 4,677,237
Total $14 241 784

Expenditures
$ 1,855,785 2,897,030 2,328,608
$ 7,081,423

Encumbrances

$

46,560

59,416

138,898

$

244,874

Unobligated Balance
$ 1,982,877 2,722,879 2,209,731
$ 6,915,487

Budget $7,175,498

BASE BUDGETS July 1, 1988 through March 31, 1989

Expenditures $ 2,898,368

Encumbrances 215,975

Unobligated Balance
$ 4,061,155

20

Budget $20,132,717

LONG RANGE MAGNETS July 1, 1988 through March 31, 1939

Expenditures $ 7,229,124

Encumbrances 1,007,31D

Unobligated Balance
$11,896,283

Budget $30,000

PUBLIC RELATIONS July 1, 1988 through March 31, 1989

Expenditures 13,624

Encumbrances

$

J

Unobligated Balance
16,376

Budget $4,190,000

MAGNET TRANSPORTATION July 1, 1988 through March 31, 1989

Expenditures $ 7,294,727

Encumbrances

Unobligated Balance
$<3,104,727>

Budget $89,980

RESEARCH AND DEVELOPMENT July 1, 1988 through March 31, 1989

Expenditures 7,809

Encumbrances 51,270

Unobligated Balance
30,901

SUMMARY OF TEAR FOUR

July 1, 1988 through March 31, 1989

Program

Budget

Expenditures

Unobligated

Encumbrances

Balance

AAA

$ 8,908,298 $ 2,951,761 $

Reduce

Class Size 8,787,191

3,407,032

Summer Sch. 1,249,571

959,301

Full Day K 1,773,185

820,618

Ext. Day

600,000

262,613

ECE

3,928,807

1,991,714

299,413
0 0 1,978 5,324 93,015

$ 2,657,124
5,380,159 290,270 950,589 332,063
1,844,078

21

Eff. Schls. 6,680,000

(2) 1986-87

Magnets 14,241,784

Base

3udgets 7,175,498

Mags. 20,132,717

Pub. Rel.
(3) Magnet

30,350

Transp. 4,190,000

Research &

Dev.

89,980

(1) Subtotals $74,787,381

Int. Cost

884,030

Debt Serv. 14,923,003

Teacher Salary

Pkg.

5,390,811

Maint. Plan 2,240,000

Security, DP,

Receiving 880,280

Spec. Ed.

Compliance 869,189

(4) Subtotals $25,187,313

Total $99,974,694

3,463,118 7,081,423 2,893,368 7,229,124
13,524 7,294,727
7,809
$33,381,232 363,132
14,925,807 3,527,422 1,547,358 430,269 436,155
$21,230,143 59,611,375

►90,589 244,374 215,975 1,007,310
0
51,270

2,726,293
6,915,487
4,061,155 11,896,283
16,726
<3,104,727>
30,901

$2,409,748
0 0
0 6,678
3,547
0

$33,996,401
520,898 <2,804>
1,863,389 685,964
446,464
433,034

$10,225 $3,946,945 $2,419,973 $37,943,346

(1) The funding of the desegregation plan components not including the 1986-87 Magnet Schools is shared 25% by the KCMSD and 75% by the State. (2) The funding of the 1986-87 Magnet Schools is shared on an average of 66.1% by the KCMSD and 33.90% by the State. (3) The magnet school transportation funding is limited to the budgeted amount of $4,190,000. (4) The funding is borne solely by the KCMSD.

22

SECTION VI — COMMENTARY
As previously reported to the Court, the reliability of the financial data provided by the KCMSD in Years One through Three was disappointing and frustrating. Although the situation has improved somewhat, it still leaves much to be desired.
In March 1983, a copy of the KCMSD's Tactical Plan for Financial Systems integration was presented to the DMC (Exhibit 3 in DMC report to the Court for Year Three). The plan set forth timetables to complete the various prioritized phases. These were completed in . August 1988.
In September 1988, a second Tactical Plan was presented to
the DMC, Exhibit A. Periodically the Committee has met with representatives of the KCMSD for a status update., It appears to be progressing on schedule. However, the implementation of the two tactical plans have not resulted in more accurate nor timely submission of financial data.
As in past years, the Budget Subcommittee has relied on independent auditors to audit the reports in a timely manner. The annual review by the State Auditor for Year Three has not been released to the DMC. The KCMSD's independent auditors, Arthur Andersen & Co., have not completed their audit for Year
Three, which ended June 30, 1988. We have met with the auditors
and they have shared some of their concerns and are frustrated that the audit could not be completed. It now appears that the
audit report for June 30, 1988, will not be available until after the close of the fiscal year ending June 30, 1989. Such delays
make the reports of little value. We are still concerned that the KCMSD has not instituted
appropriate procedures to expend and use the funds made available by the Court in a timely manner. These concerns have been com municated to the administration. In approving the reorganization of the administrative structure of the district, we were hopeful that the proper direction, guidance and supervision would be given the staff in the utilization of the funds allotted. The lack of follow — through is still apparent. Rhetoric will not get
23

the job done. It takes positive attitudinal change and action on the part of the top administrators to establish the priorities that will affect change. Until there is such change, the children will continue to be denied the full educational opportunities afford to them under the court order, nor will the desegregative purposes be achieved.
The committee has spent many hours meeting, with representatives of the Project Management Team (PMT) and the District regarding the Capital Improvement Plan. it has taken the District a long time to find the proper persons to fill the allocated slots to implement and properly oversee this large undertaking. Concerns have been brought before the committee regarding alleged irregularities taking place with respect to certain projects. These concerns have been shared with the PMT and district personnel with assurances that if true, corrective action will be taken. We have been pleased with the attitudes exhibited by these persons, and with the positive action that we have been assured is taking place. There appears to be a more cooperative working relationship between the PMT and the Oversight Team of the District, in respect to the planning and design phases of a given project, as well as to the construction phases. The District has a much better handle on what is going on in the realm of the PMT, and is in a better position to monitor its activities.
The committee has been frustrated when asked by the District to review its desegregation program and budget proposals. The failure of the District to provide detail information or compara tive data as to how the funds have been utilized or will be utilized has made the committee's task impossible. We are amazed how the Board of Education can act in a responsible manner lacking the financial data to support the decision—making process. The committee has been forced to take no exception to the desegregation programs proposed, where appropriate, and take no action on the budgets proposed due to the lack of sufficient financial data, p ast, present or future, on which intelligent decisions can be based.
24

Since a year has not gone by in which all of the funds requested by the District and approved by the Court have been fully utilized, it appears that a more careful and responsible budgeting process should be taking place. :n some of the programs not all of the funds will be used as requested. The budget requests seem to reflect building upon previous year requests without considering the realities of the utilization of the funds in those previous years. AAA Achievement, Reduced Class Size, Full Day Kindergarten, Effective Schools, and 1986-37 Magnet Schools, are some of the programs which might undergo the financial reviews to determine if a reduction in those budgets might be appropriate. As long as the District adopts the attitude that what it cannot fund under its Court responsibility the State will, there may be little incentive to realistically control the desegregation plan costs and, therefore, the Budget Committee suggests it is appropriate for the Court to cause some examination of the budgeting and subsequent expenditures from the operating budget of the KCMSD. This examination of the operating budget should provide an opportunity to examine the question of the appropriateness of the expenditures by the KCMSD on matters such as whether changes in the expenditure pattern in the opera ting budget support or impede the implementation of the desegre gation plan, whether supplanting of resources is occurring, and whether resources are available in the operating budget to support the programs ordered in the desegregation plan.
25

SECTION VII RECOMMENDATIONS 1. The KCMSD should be required to provide detail comparative financial data on each desegregation plan program component to support its future budget requests. 2. The KCMSD should be required to encumber funds for the current fiscal year no less then 45 days prior to June 30th of that year. 3. The KCMSD should be required to clear all outstanding obligations of record on June 30 of each fiscal year, within 120 days subsequent to that date. 4. The KCMSD should be required to take action to provide for much greater internal auditing to protect against possible waste, abuse and fraud in expending resources provided by the Court. Resources targeted to address constitutional violations must be used in a more effective and efficient manner by the KCMSD.
26

THE HALL FANIILY FOUNDATIO N S
PO go\ 41,4<*1) K \\SAS CIP:. VISSOI. RI '`-.1
September 7, 1988

ATTACHMENT A

Mr. Robert Barrett School District of Kansas City, Missouri 1211 McGee Kansas City, MO 64106

Dear Bob:

On behalf of the late Joyce and Elizabeth Hall, we are pleased to inform you that a grant up to the amount of $676,763 has been approved to implement the MSA Applications programs for nine mainstream subsystems of purchasing, accounts payable, and fixed assets and to develop and implement a management system to control the inventory of moveable equipment currently owned and to be purchased in the future. It is our understanding that this money will be used by the District to contract for services from Bowker-Williams and Associates and other contract services as necessary.

While the full $676,763 has been approved, we will review the progress of the District and the consultants in each of seven different phases. If the implementation has not proceeded correctly or has not occurred in a timely manner, based on the schedule below, we reserve the right to withdraw our support. We understand that measuring the inventory of fixed assets ($150,000) will proceed concurrently with Phase I. The schedule:

Description

Schedule

Elapsed

Start Complete Time

Cost

Phase I: . Fixed Assets . Travel Advances . Utilities . Cafeteria Invoices
Phase II: . Equipment . Furniture . Supplies
Phase III: . Textbook Ordering
Phase IV: . Payroll Deductions . Health Insurance

09/88 12/88 4 months $155,223

01/89 02/89 2 months

70,110

03/89 05/89 3 months 112,667

06/89 07/89 2 months

62,921

Description

Schedule

Elapsed

Start Complete Time

Cost

Phase V: . Facilities Purchases
Phase VI: . Commodity Inventory Items
Phase VII: . Post Implementation Review
TOTALS

08/89 10/89 3 months

91,447

05/89 07/89 3 months

*N/A

11/89 11/89 1 month

34,395

09/88 11/89 15 3 1a2nth2 S526,763

NOTE: * Phase VI is concurrent with Phase III and Phase IV, therefore the cost projections have previously been stated.

Our commitment to this project is contingent upon the following factors:

. The approval andsup ort--of both the Board of Education

and the Superin

nt. This support would include:

providing the facilities and employees for a centralized

warehouse; regraded positions in the data processing and

financial services division; five additional people (one

programmer, three to accounts payable and one to purchas-

ing).

. Demonstrated progress in the transfer of knowledge from
Bowker-Williams to District staff to ensure the Dis-
trict's ability to manage the MSA financial systems in
the future. we are hopeful that you will make every
effort to use the consultants on a part-time basis as
soon as possible.

. With the discontinuation of the Oversight Committee, we have relied heavily upon the input and advice of Ron Pursel in assessing the project. We will continue to do so; should he conclude at any time that the project is not being properly implemented or receiving the necessary District support, we reserve the right to withdraw our support.

We will plan to pay the grant at selected intervals during the phases outlined above. The payments will be based upon Ron Pursel's review of the project and copies of billings and expenses incurred to date.

Bob, this is another enormous undertaking which has the potential to greatly improve the District's business operations. We very much appreciate your tremendous efforts to date. This continued grant is based largely upon your current involvement. If for some reason you are no longer involved, we would need to assess your successor and his role, if changed, before deciding if or how we will proceed.

Again, we commend you on the real progress you are making at the District. We are pleased to be able to lend our support to your efforts.

Sincerely,

i

/

/

/1

/

/

/ David H. Hughes, J.

gg cc: Dr. George Garcia

DESEGREGATION SUBCOMMITTEE REPORT SUMMARY OF YEAR FOUR

One of the primary features of the desegre g ation orders issued by the Court is to bring about pnysrs al lesgregation the KCMSD. In examining the data on the progress or lack of progress of the KCMSD to effect physical desegregation, the Desegregation Subcommittee examined four major factors as noted below:
1) Changes in racial make — up of student population in the KCMSD.
2) Changes in racial make — up of 90% or more minority schools.
3) Compliance of KCMSD with the desegregation requirements at magnet schools where the goal is 60% minority and 40% majority.
4) Compliance of KCMSD with the desegregation requirements at magnet schools where the goal is to reduce the percent of minority students attending the school by at least 2% per year.

TOTAL STUDENT MEMBERSHIP

1987-88 1988-89

Majority Students
9,172
9,148

Minority Students
26,257
25,974

Total Students
35,429
35,122

% Minority Students
74.1%
74.0%

The progress toward an overall reduction in the percent of minority students in the KCMSD was at best minimal.
In fact, overall less than a 1% reduction in the percentage of minority students in the KCMSD was achieved, with 50% of the grade levels showing increases in the percentage of minority students and 50% showing a reduction in the percentage of minority stu d ents. This reduction certainly is not adequate if
27

the goals of the desegregation plan are to be realized and equitably afford students and parents, particularly minority parents and students, a voluntary choice of desegregated magnet schools. It is clear that the efforts and outcomes of the KCMSD to increase non — minority students in the district must become more pronounced and effective if the goals of desegregation and equity are to be achieved.

RACIAL COMPLIANCE STANDARD

Programs Requiring 60% Majority/ 40% Minority Student Enrollment

Standard

Met

Not Met

High School

Programs

2

N/A

Middle School

Programs

1

1

Elem. School

Programs

9

2

Programs Requiring 2 Percentage Points Reduction in Minority
Enrollment

Compliance

Met

Not Met

1

1

1

2

3

4

TOTALS

12

3

5

7

* 60/40 schools are newly established schools under the Long — Range Magnet Plan and any school already having a minority population less than 60% as of the previous school year. Two percent schools are indicated by entering the 2% standard used, based on the school's racial standing as of the previous year.

The KCMSD is obligated to establish magnet programs that satisfy a 60% minority/40% majority standard or programs which reduce the percentage of minority students in a program by at least 2 percentage points per year. These goals are achievable if and only if the KCMSD offers quality magnet programs and
28

further designs and implements an effective recruitment program. Unfortunately, although some solid and good magnet programs
have been introduced in the KCMSD, the recruitment program, both effort and outcome, as of June 1, 1989 was a major disaster area.
This failure in recruitment by the KCMSD was a major cause in the failure of the district to meet desegregation standards in 3 (20%) of the 60/40 magnet programs and in 7 (58%) of the 2 percentage points reduction magnet schools.

1937-88 1988-89

90% MINORITY SCHOOLS

Elementary
20 16

Secondary
5 5

Total
25 21

The number of 90% minority schools was reduced from 25 to 21 during the 1988-89 school year. This reduction although minimal is progress. As additional magnet schools come on board, and when and if a VIT program with schools outside of the KCMSD becomes a reality, the KCMSD should be in a much better position to make greater progress in reducing the number of schools at which 90% or more of the students are minority.
During this interim period in which the magnet program is not fully implemented, it is recommended that the KCMSD make a much greater effort to make available additional local resources at these remaining racially isolated schools. Of particular assistance would be action by the KCMSD to fully fund base budgets at non—magnet schools. Another promising possibility is to further reduce the size of classes which enroll a high pro portion of low — achieving students at these schools. The above might be accomplished through the use of operating budget funds and/or use of effective schools funds for this purpose.

29

One of the measures used by the Court in assessing the status of segregation and the need for remedy was the number of schools with 90% or more minority enrollment, and the funding of the Effective Schools component reflects resources intended to assist in addressing the ills of segregated schools. Another significant factor which might be considered involves the number and percentage of students attending 90% or more minority schools. Overall for the 1988-89 school year, the percent of minority students attending these 90% or more minority schools declined from 48% to 42%. The elementary and middle schools showed a reduction in the number of minority students in the 90% or more minority schools, and the senior high schools showed a small increase (1%) of students in 90% or more minority schools. This progress toward reducing the number of students attending these racially isolated schools is commendable. The KCMSD, within the parameters of the Desegregation Order, should pursue all available options for further reduction in the number of students attending these low — income segregated schools. The most viable options for accomplishing the above is an effective recruitment plan and the implementation of a voluntary inter— district transfer plan which would permit minority students to seek options for education external to the KCMSD.

STUDENTS IN SCHOOLS

Traditional Magnet Total

1987-88 26,750 8,177 34,927

1988-89 19,976 13,031 33,007

* Includes students enrolled in KCMSD regular elementary and secondary schools

30

The primary vehicles for stable desegregation within the KCMSD are magnet schools which have specific racial goals year by year. So if desegregation is to increase, a greater number of minorities will have to be placed in desegregated settings in magnet schools. Comparisons of the number of students in
magnets during 1987-88 with 1988-89 showed 8,177 were in magnets in 1987-38; this number increased to 13,031 in 1988-89. Un -
fortunately, because the KCMSD failed to satisfy the goals for desegregation in all of the magnet schools, one must be cautious in using the above measure as a yardstick for success or lack of success in desegregation. Nevertheless, it must be noted that
the advent of these additional magnets during 1988-89 provided
some additional viable options for desegregated education for students in the KCMSD which was not afforded in the past.

TIME SCHEDULE FOR CIP PROJECTS

Number of Construction Projects on Schedule

Number of Projects Greater than One Year in Delay

12

23

In order for the desegregation plan to be fully implemented, among the factors necessary to permit optimal instruction to occur are: hiring and training of staff, development of curriculum, recruitment of students, efficient, safe and effective transportation of students, and the completion of facilities. It is clear that the KCMSD shows clear deficiencies in all of the above listed areas as reported in this year—end report by the DMC. This section is intended to provide some information on the significant delay in the construction schedule as noted above. The KCMSD lists 35 projects in Phases V—VII (See
Appendix A) and the data show 23 (66%) of these schools'
construction initiatives will not be available for students during the semester initially planned for occupancy and, in many

31

cases, the buildings will not be available for use by students until years later than scheduled.
The process used to select sites, secure approval of the Court, acquire property, and complete construction is time con suming. It is recommended that the parties pursue a process through the Court to reduce the time period required to complete projects which are a part of the Capital Improvements Program. Continued delays in construction projects are leading to overcrowded programs, additional costs and, in some cases, only limited implementation of magnet themes at sites. Certainly it is in the best interest of all parties, given the above factors, to work together to improve the process for approval and completion of construction projects. We encourage and recommend said cooperation as it serves the best interest of all parties.
RECRUITMENT
Recruitment, a most key factor for desegregation and the subsequent placement of minority students at specialty schools, was purported to have the highest priority by the top administra tors of the KCMSD. In fact, the superintendent stated to the Desegregation Committee that "recruitment for magnet schools was the highest priority in the district." Failure to success fully adhere to this commitment by the KCMSD and its top administrators has jeopardized this desegregation plan and opportunities for a desegregated educational experience for countless non — minority students and a much greater number of minority students.
Discussions relative to planning and implementing an aggres sive marketing and recruitment plan for 1988-89 school year started early in 1988, long before the beginning of the 1988-89 school year. A semblence of a plan was developed in April 1988, and was presented to a task force to review according to District personnel. However, in late August 1988, the tentative plan had not been developed further, a full complement of recruiters had not been hired, and the training complement had not been suffici-
32

ently organized. Throughout the Fall of 1988, no meaningful schedule was set forth for implementation of a plan, nor was a completed plan presented until December 1988, although the DMC and representative of the plaintiffs on a continual basis raised the issue and the importance and need for an aggressive and effective recruitment program for the KCMSD.
The shortcoming in planning, organizing, coordination, communication and implementation, although evident to even the least able, was not dealt with by the administration in the KCMSD. During the 1983-89 school year, the District had no clear line of authority with regard to magnet recruiting. Various lines of authority were established throughout the year that did not afford consistent guidance, direction and supervision for recruiters. Authority for recruitment during 1988-89 was shifted from a coordinator of recruitment to the five area superintendents, who were not adequately knowledgeable or positioned to effect a meaningful recruitment program. In recent weeks, this authority and responsibility has reverted to a coordinator position for recruitment, but the 1988-89 school year for recruitment may have been lost.
Training of recruiters was at best sporadic and often concurrent with recruitment efforts. The scheduling did not allow for successful participation on the part of recruiters in any aspect of the plan. The budget for recruitment was divided between the magnet office and the communications department. Coordination, cooperation and consistent planning are keys to the appropriate expenditures of budgeted funds, and the KCMSD failed in these areas. Very often, District personnel expressed a lack of knowledge regarding budgets and expenditures. Without a clear understanding of the resources available for recruiting/marketing efforts, one must surmise that needed and meaningful opportunities for recruitment for magnet programs were not considered or missed altogether.
Further, the lack of a meaningful recruitment plan being developed in a timely manner, lack of an effective implementation schedule, ineffective patterns of training for recruiters, and
33

minimal coordination and understanding of the budgeted resources

available for recruitment resulted in a poor recruitment effort

that has probably at most led to less than 300 new non-minority

students being recruited to the KCMSD as of June 14, 1989. The

factors set forth grossly undermined the expressed commitment

of the KCMSD to hold recruitment in high priority as the District

continuously failed to demonstrate a clear understanding of the

relative importance of recruitment to the success of the desegre-

gation plan.

RECOMMENDATION:

The KCMSD administration is guilty of gross

mismanagement in the implementation of an effective recruitment

program during 1988-89. The KCMSD should be directed to produce

a comprehensive, well-developed recruitment plan for 1990-91 by

November 1, 1989, and in the event the plan prepared is insuf-

ficient or not implemented, the Court should consider imposing

the strongest sanction on responsible parties in the KCMSD.

PLACEMENT

As of 5/31/89, the KCMSD reported that it had program 1 capacity for the 1989-90 school year of 20,028 students at its
magnet schools. The KCMSD further reported an expected enroll*
ment of 15,820 students and a waiting list of 8,733 for these magnet schools. Of these 8,733 on the waiting list for more than 25 schools, 7,507 (85.9%) were minorities. There is no question that some minorities will be denied an opportunity to attend these magnet schools because of a lack of space and/or failure on the part of the KCMSD to effectively recruit nonminorities for the magnet schools.
(The issue of affording these students a desegregated education is even more compromised because of a lack of a voluntary interdistrict transfer program which could afford minority students a desegregated education in the suburbs.)

* These 8,733 represent all students and their request for placement at magnet programs.
314

COURT ORDER 9/15/87

APPENDIX A

CONSTRUCTION PHASE (pATZ Q. COMPLETION)
Phase V
Southeast Annex (Fall, 1988) Longfellow (Fall, 1988) Melcher (Fall, 1988) Meservey (Fall, 1988) N. Rock Creek/Korte (Fall, 1988) Phillips (Fall, 1988) Southwest Senior High (Fall, 1989) New Faxon Elementary (Fall, 1989)
Phase VI
New Knotts Elementary (Fall, 1989) New Attucks Elementry (Fall, 1989) King Middle (Fall, 1989) New Pitcher Elementary (Fall, 1988) New Northeast Elementary/Garfield
(Fall, 1989) New Southeast 1 Elementary
(Fall, 1989) Nowlin Middle (Fall, 1989) Paseo High (Fall, 1989) Three Trails (Fall, 1989) K.C. Tech (Fall, 1990) Troost (Fall, 1989) Wheatley (Fall, 1989) Middle School 1 (Spring, 1990) Garfield (Fall, 1989) Weeks (Fall, 1989)
Phase VII
New Southeast II Elementary (Fall, 1990)
New Southeast III Elementary (Fall, 1990)
New Elementary I (Fall, 1990) New Elementary II (Fall, 1990) New Elementary III (Fall, 1990) East High (Fall, 1990) Northeast Middle (Fall, 1990) Richardson (Fall, 1990) Southeast High (Fall, 1990)

PRESENT COMPLETION DATE
October 7, 1988 September 2, 1988 December 30, 1988 September 2, 1988 July 1, 1990
3 September 2, 1988
March 1, 1990 June 27, 1991
April 18, 1991 No information 5,TE efircyra44 November 1, 1989 July 1, 1990,---
June 1, 1990
May 9, 1991 3 August 23, 1989' June 6, 1992' January 24, 1990"-October 1, 199l 3 December 14, 1990 3 January 5, 1990 1992 L.-November 15, 1989 November 29, 1989

November 1, 1990

No information No information

Ler 9 I

No information

th

No information

February 6, 1991

No information 71:4(...4_54,N-01., p

August 28, 1990 '

February 6, 1991

Page 2
Construction Phase (Date 21 Completion)
Phase VII (Cont.)
Van Horn High (Fall, 1990) Westport Middle (Fall, 1990) Westport High (Fall, 1990) Meservey (Fall, 1990)
Phase VII (Other Facilities)
East Stadium (Fall, 1990) Southeast High - Stadium and
Arena (Fall, 1990) Linwood (Fall, 1990) Linwood West (Office Space)
(Fall, 1990) Norman Administrative Center
(Fall, 1990)

Present Completion Date

March 15, 1991
No informationYq7
No information/
August 29, 1990

August 22, 1989 August 12, 1989 September 1, 1990 Not applicable •
Not applicable

ef)

P

co4c_ /. (1C5

EDUCATION SUBCOMMITTEE REPORT
SUMMARY OF YEAR FOUR
The desegregation plan ordered by the Court in July 1985 rested on four major concepts: Improved education opportunities at all schools in the KCMSD, magnet schools, capital improvements, and voluntary interdistrict transfers (1IDT). Increased participation of non — minority children in the district was to be achieved by the raising of the quality of the schools to a level comparable with the private schools competing with the district in Kansas City and especially with the contiguous suburban schools. The magnet schools were to go beyond comparability by offering special programs not available in the competing schools or school districts.
It is not news that many of the District's schools serve a student population in which students carrying burdens of difficult family circumstances and very limited economic means are overrepresented in comparison with the populations of suburban school districts. The correlations between this fact and lowered educational aspirations and lower academic achieve ment are the subject of too many studies. The consequences for the district have been that the educational climate in many schools and the "culture" of many of the district's schools have been set by this condition due to the unconstitutional segrega tion for decades in the KCMSD. The type and intensity of the programs offered, the expectations of school administrators and teachers, the level of participation by parent and community groups in the life of the school have been perceived to be significantly different from those of the schools and families (minority and non — minority) using private and suburban schools. In a number of cases the perceptions are correct. None of this is news to observers of inner—city segregated school districts.
The special challenge confronting the KCMSD under this desegregation plan has been that it must produce the schools and programs attractive enough to draw back non—minority and minority students who have abandoned the district, while providing
35

improved educational services for the present core of students and the communities in which they live.
The tension arising from trying to meet both needs, as mandated by the desegregation plan, at times has complicated the attainment of the goal to raise the achievement levels within the district while instituting a magnet plan attractive to families who have abandoned the district's schools or who have other options.
Unfortunately this tension is sometimes perceived as a dichotomy between excellence and access, between a broad—based and an "elitist" program. Advocates of the "access" think that no or minimal admissions criteria for admission to magnet
programs and courses within the programs will best serve the
district's (current) student body. They tend to argue against audition requirements for the Fine Arts magnet schools, against admission to Lincoln Academy based on grade point and achievement test ranking, and against special admission provision to the Greek Academy High School for students of proven special athletic ability. Put in the most positive light, this group emphasizes a broad front improvement in the educational lot of the large majority of students traditionally served by the KCMSD, even at the cost of failing to meet the special needs of students with special talents.
This may be a reasonable educational and political stance and has some broad support. It may, however, reduce the viability of certain magnet programs, especially those which require a critical mass of committed and talented students — minority and non — minority — for success. Music ensembles, athletic teams, foreign language groups, and programs for the academically gifted, for example, are cohort dependent.
Even where special admission criteria is not suggested, a student body made up of a large number of lower—achieving students can make full implementation of magnet programs difficult. The testing data continue to confirm this distribu tion of achievement. It is expensive and hard to justify upper level magnet courses for a handful of students, and these are the
36

very kinds of specialized courses which are not offered in schools competing with the KCMSD for students and which will attract new students to magnet schools. A number of such courses did not have sufficient enrollment to be offered though mandated in the long-range plan for specific magnet schools. Again, the curricula at magnet schools can be, and has in at least one case been, skewed in the direction of lower level, basic skills offerings to meet the needs of the present student body. To the extent that this occurs, the ability of a magnet school to draw middle-class non-minority and minority students back to the KCMSD
will be compromised.
A process for resolving the above listed problem would be effective implementation and use of transition classes and extended day programs, as mandated in the magnet school plan. Unfortunately, there is little evidence to suggest the KCMSD has systematically used these strategies in an intervention mode.
The voluntary interdistrict transfer aspect of the desegregation plan is characterized as one of the three legs upon which the effort rested since it addressed these predicted circumstances. The movement of a sizable fraction of the current students to suburban schools and voluntary participation of significant numbers of middle-class suburban students under a projected VIDT would have been a factor advancing the educational validity and success of the magnet school program since their initial stages, apart from the obvious desegregative impact such a process would have had on the district. Unfortunately, success at recruitment for magnet programs and a VIDT program is yet to be realized.
The attempt, in absence of success in recruitment and VIDT, to adequately serve a current student population while reaching out to a second group thus has a potential impact on the integrity of the magnet programs. At the same time the energy and attention being put into implementation of the magnet theme at a school can contribute to lowering the intensity of the effort to implement special educational approaches for lower achieving students, some ordered by the Court. Three interven-
3 7

tion programs designed for such students may have been affected

as principals and resource persons for the programs have attended

to magnet tasks. The SWAS program, the STEPS program, and the

Reading program require changes in teaching style with some

changes in teachin g materials for those participating in the

program. These changes are in addition to magnet theme infusions

and concerns. A solid educational leader and dedicated teachers

would be stretched to accomplish all the school, curricular, and

classroom transformations at once.

As stated above the KCMSD faces a special challenge in

. serving one population while putting in place programs and

facilities to attract another.

RECOMMENDATION:

The KCMSD should review and evaluate the

admission criteria for magnet schools in order to determine the

value of correlating admission to magnet themes based upon

expressed interest or achievement in the magnet theme.

RECOMMENDATION:

The KCMSD should increase the resources

currently allocated to the intervention programs which target the

lowest achieving student.

Another aspect of the dichotomy facing the district in

serving its current educational community and reaching beyond the

community to achieve desegregation has found expression in the

staffing. The community served by the KCMSD has ties to present

schools, administrators and teachers. There has been a natural

tendency to hire and promote either from within or to find people

already known to the Board or the administration. At the time

the plan was first presented, it was anticipated that meaningful

national searches for the best staff would be conducted. In the

best case participants would be drawn by strong competent

credible leaders to solid programs to be with people of similar

interests regardless of ethnic background or area of residence.

The more local tendency too often has prevailed. The -district

has served its proximate, traditional community not taking full

advantage of the resources provided to secure the best staff for

implementation of the program.

38

The real and perceived need by KCMSD to move in two directions at once: to serve a present constituency, and to attract a new one, has been a factor in the tortious progress to recruit the best staff.
Supporting real magnet programs with unique features, theme knowledgeable administrators and committed teachers and administrators bolstered by a well known articulate superinten dent will attract new students and patrons to the district and compensate for the costs involved in attending non—neighborhood schools.
ADMINISTRATION.
Many observers of the administrative apparatus of the KCMSD for good reason are no longer willing to consider its relative newness or grant it space for inexperience. Clearly the fact that the District has ended the fourth year of the desegregation plan and that the "excuse of inexperience" has been invoked so often in the past makes it hard to accept this argument. Still there is some merit in pointing out these conditions which may play some role in the inadequate implementation of the desegregation plan by KCMSD during this year.
This is the second year in office of a new superintendent; new to the position of top administrator of a large urban district and new to magnet school implementation. This is the first year of operating the district under his reorganized structure. It is the first year in the district for three of the five area assistant superintendents directly responsible for sup porting the operation of the schools, the first year for key financial personnel, for the director of public relations, for a director of personnel, and for important staff in the curriculum office. One lower level administrator put the matter plainly when stating that "training the boss" was one of the major tasks of the year. There have been a great many bosses to train.
Having made the point concerning the newness of the administration, a second observation has to be made. It appears
39

implementation of the desegregation plan.

While it is most desirable for all individuals in the local

community to participate fully in all aspects of the desegrega-

tion effort under the Court Order, there is only one priority for

the board and administration, and that is the advancement of

desegregated education of quality comparable to the surrounding

districts for the plaintiff children of the KCMSD.

The DMC's July 26, 1988 Report to the Court indicated that

the administration may have been subject to pressure from the

board to act in the manner described above with regard to hiring

and purchasing. In a number of specific instances this year the

DMC has strongly questioned personnel decisions it could not

rationalize with the effective implementation of the Court Order.

Notwithstanding, the administration of the district has chosen to

go forward with such appointments and the board has supported the

administration.

RECOMMENDATION:

In cases where personnel or purchasing or

contracting decisions made under the Desegregation Order are

determined by the DMC to be contrary to the effective and

efficient implementation of the Order, the Court should consider

termination of funding for that position or aspect of the program

and require the KCMSD to show cause why they should not be held

in contempt by the Court for the failure of the KCMSD to

implement the Order of the Court in an effective and efficient

manner.

ADMINISTRATIVE REORGANIZATION.

The superintendent's reorganization plan approved by the Court took effect during the 1988-89 academic year. As mentioned above, the majority of appointees to the key position of area assistant superintendent were new to the Kansas City metropolitan area and had limited experience in magnet themes.
While the acquisition of personnel from many parts of the country, to help revitalize the district, was encouraged by the long — range plan, giving substantial magnet responsibility to

141

people unfamiliar with the content of magnet themes was not. A majority of those appointed to these assistant superintendent levels had no background or experience in the magnet themes taught in the schools for which they were responsible and this problem was compounded by the appointment of principals who had no or most limited knowledge or background in the magnet theme. This was a factor in the difficulties experienced in the planning for some of the magnet schools projected to open in September 1989. Conversely, some of the most successful and promising planning and implementation was done by assistant superintendents and principals with a grounding in the corresponding magnet theme.
Another one of the difficulties associated with performing in this position of assistant superintendent was the sheer size and variety of tasks to be performed while, as far as the DMC could see, no clear priority or basis for evaluation of performance for the assistant superintendent had been established at the beginning of the year. Recruitment of instructional personnel for the schools, recruitment of students for the magnet schools, supervision of task forces for the development of new magnet themes, aiding in the solution of numerous day—to—day problems at the school level, participation in budget development and supervision, review of design for new construction in their area, and coordination of curricula for schools vied for the attention of these administrators. Their superior, the deputy superintendent for instruction was, if anything, even more heavily burdened. If not every task was accomplished equally well there is little wonder.
The DMC believes the quality and commitment of the individuals assigned to this level of administration and to the office of the deputy have proved at least as important as the organizational structure in which they have functioned. Although it increasingly has become evident that the organizational structure of the KCMSD is flawed in relationship to planning, communication, coordination, evaluation, etc. Since two of these key assistant superintendent positions will have to be filled
42

before the start of the 1989-90 school year, discontinuities can

be expected.

The reorganization called for what was in effect a demotion

for district magnet theme coordinators. As a group, these

comprised the best prepared and most dedicated of administrators

responsible for the magnet education. It is to their credit that

almost all of them have remained with the district under the

revised conditions of their employment which included a loss of

rank and salary. As shock troops for the magnet themes, they

have represented the educational interest of the theme to area

assistant superintendents (already described as likely to be

innocent of preparation of the theme), school administrators who

are also frequently lacking in theme background, and representa -

tives of the Project Management Team (PMT) responsible for design

and construction of educational facilities which house the magnet

programs.

RECOMMENDATION:

In making appointments to the position of

assistant area superintendents, a greater emphasis should be put

on the candidates' background in the magnet theme(s) and previous

magnet school experience.

CONSTRUCTION AND RENOVATION — The Project Management Team.

When first proposed, the expenses due to the employment of a PMT were to have been covered by savings realized through "value engineering." This was presented as a cost — cutting technique based on minor design changes, design changes which would not reduce but if anything enhance the educational effectiveness of the construction. The PMT has often given assurances that all construction and renovation projects would be driven by the educational program. There is reason to believe that some weakening of this resolve has occurred. There has been a tendency for cost saving to be projected at the expense of educational programs. Notably, a significant addition at Melcher Foreign Language Elementary was designed with state of the art language lab facilities. Air conditioning needed for the summer

school operation was removed from the design after it had been

initially included. This summer and for the forseeable future

foreign language enrichment will occur at an air-conditioned

facility not designed for foreign language instruction. Cost and

inadequate planning, not the .=‘duoltional program, had driven this

decision.

RECOMMENDATION:

The District should retain highly qualified

educational planners sensitive to programatic needs. The PMT

should review its application of the concept of value engineer-

ing with a view to fulfilling the commitment to program driven

construction.

The dislocations associated with construction and renovation

are having a serious impact on tho educational program and by

extension on recruitment. In two of the first schools, or

clusters, to become magnets, the program has been described by

the KCMSD's evaluators as being housed in three different

buildings since the beginning of Implementation: the original

building, a different building during construction, and finally

the renovated building. The temporary site for one school was a

location with inadequate space to hold a school population of the

size needed. The facility was cLearly not designed to support

the program located there. Where there has not been a total

shift to a different building during renovation of the home

structure, the educational program too often has been conducted

in less than ideal conditions while work continues at the same

site. Beyond the gross construction, furnishing the finished

building has caused delays in the implementation of programs.

Proper installation of electrical wiring and outlets have delayed

use of computers even in schools housing computer associated

themes. Provision of ordinary furniture, tables and chairs have

been a problem and this has had impact on the educational

program.

By and large the principals and teachers and parents have

set their minds to making do and putting a positive face on what

are temporary situations. It is to their credit that the

programs have gone forward at all under these very difficult

44

conditions. However, the expectations for early success in the imple-
mentation of the program must be tempered by these facts. it is also true that the end products of the construction are attractive and educationally appropriate environments.
It is easier to describe this problem of inadequate space than to solve it. Given the condition of the builuing stock available to the district, and the time frame set out for the construction, the non — positive impact of the construction programs on the educational programs for the near future will continue in different parts of the district.
INFRASTRUCTURE: Personnel Operation.
Weakness in the personnel department and in the quality of many of the personnel given positions under the magnet plan have seriously hampered implementation of the plan. The turnover in the personnel department this year reached from the highest level to the third level of administration. At one point a single employee at or one step above the clerical level remained to represent the personnel department in answering questions on personnel from the DMC. A new personnel director inherited an administrative apparatus which has been termed structurally disfunctional by her successor. The executive on loan to the KCMSD has indicated he is now in the process of implementing a more functional administrative structure for the personnel department.
The original intention of the desegregation plan was that the best and brightest administrators and teachers would be drawn to Kansas City to implement one of the most far reaching educational reform efforts in the country. From the first it was clear that that commitment was not fully shared by senior administration and personnel department as constituted at that time. For example, there has been a perception that knowledge or training in the magnet theme was not an especially important qualification for the position of principal in magnet schools.
11 5

This attitude is present at senior administrative levels in the central office and certainly an expectation among old district hands in the schools. As a result, too many magnet schools, especially at the secondary level, have been headed by individuals whose attention was a'irected to other than magnet school emphases.
The condition of the personnel department also impacted on the administration of the TTAP and teacher tuition reimbursement programs. The first of these programs was designed to support bright students at nationally recognized schools in exchange for their participation in the KCMSD as teachers after graduation. In practice the emphasis has been on students from local and regional schools and relatively few of them have been contracted so far. Of the $500,000 allocated for TTAP, according to the Budget Office of the KCMSD, less than $40,000 has been spent or encumbered.
The teacher tuition reimbursement program was intended to increase the competence of current classroom teachers in magnet themes presented at the school at which they teach. In its first year a significant portion was spent on individuals increasing their administrative skills for what appeared to be career advancement instead. This emphasis has been somewhat shifted back to the original educational intent of the program this year.
The school year ended with a number of teaching positions plus additional key positions still unfilled. After four years no suitable candidate has been identified for the principalships at the Advanced Vocational and Technical Studies High School or for the New Paseo Performing Arts High School. Educational planners and magnet theme resource personnel for the schools, to name a few, have not been hired though the positions were to have been filled by the end of the last academic year at the latest.
A number of reasons have been presented for this failure. It might be that the salaries offered are not sufficient to attract well—prepared individuals to the district. Although the cost of living in the Kansas City metropolitan area is lower and may compensate for the lower wage scale generally conceded to
46

exist here as compared to national levels. The face difference in salary might, nevertheless, be an important factor in the
personnel patterns which exist. The DMC will be contracting for
a study to determine the impact of salaries on recruiting and maintaining the best personnel.
INFRASTRUCTURE: Purchasing.
There is still a considerable inefficiency in the process of getting educational supplies and materials to the schools. In fact, much publicity was given to the fact that as late as November 1988, there were schools in the KCMSD with an inadequate supply of text books. District evaluators and reports gathered by members of the DMC speak of negative impact on all educational programs due to delays in supplying the schools. The dislocation and physical movement of schools from one site to another to accommodate construction and renovation adds to the time period between the writing of the requisitions and the use of the material in the classrooms. This has been an ongoing frequently mentioned problem in the KCMSD's infrastructure.
INFRASTRUCTURE: Student Recruitment and Assignment to Neighborhood Schools.
The KCMSD has lessened the complexity of the application process to the magnet schools. Nevertheless, there is a gap between the effectiveness of the recruitment effort, the habits of many parents, and the need for early choice in the magnet schools. This is one factor leading to delay in establishing final student assignments to both magnet and non—magnet schools.
A second factor is technical. Technical difficulties in the running of the student assignments computer programs resulted in very late final assignments of students to schools. In many cases enrollment lists were not available at schools for over a week after the opening of school. The impact of the last final student assignment was widespread and severe. Transportation problems were multiplied, classroom assignments had to be
147

improvised then revised, and sometimes revised again due to reorganization in early October, and books and materials were not available to all students at the beginning of school. Administrative energies are absorbed in attempts to cope with problems associated with a messy school opening and away from the other tasks needed to bring new magnet programs on line.
A disorderly process in opening of schools results in diminished effective teaching time in both magnet and non—magnet schools. Pupil placement in classes appropriate to the individual becomes extremely problematic under the conditions described above. All of this must be considered as factors in the achievement patterns of students in the district.
Unfortunately, the outlook for school opening in September of this year may also be less than promising. The recruitment effort, clearly inadequate at this point, will be continuing into the summer months with the probability of late student assign ments occurring again this year.
Further, an adherence to the ethnic/racial quotas of the long — range plan has the potential of causing actual enrollments at magnet schools to fall substantially below the capacity of school buildings and programs. Shifts of students from waiting lists for magnet schools to last minute, makeshift spaces housing traditional school programs bodes very ill for the quality of education of the students across the district. Most disturbing is the fact that the burden of unfilled racial/ethnic quotas will fall heavily on the minority students.
INFRASTRUCTURE: Transportation.
The ragged opening of school described above had a great impact on the transportation component required by the magnet school concept. The individual schools and parents reported long delays, confusion, and large expenditures of energy in the first few weeks of the school year before the transportation system was brought to acceptable performance levels. The situation led a number of non — minority and minority parents new to the district
L3

to return to the ranks of those who had left the district's schoo is.
Educationally, the impact of the transportation difficulty early in the year occurred in the persistent tardiness and absences of students from first period class. Inevitably students lost instructural time and classes were disrupted. Unless the transportation problem can be brought under control, some adjustments in the first period class schedule might need to be initiated.
MAGNET PROGRAMS.
The Long — Range Magnet Plan described a planning process for magnet schools which involved a year of planning. At the secondary level, a planning principal with no other duties was charged with this task; at the elementary level the task was to be led by a planning principal usually having other duties. The planning at each proposed magnet school was to be supported by a task force of parents and teachers, support personnel designated for magnets, central office administrators, and a district—wide planning task force was to provide coordination and further support.
The actual practice has varied somewhat and the results have varied a great deal. In a number of cases no planning principal was named until well into or even after the planning year. Most notably the High School of the Arts and Advanced Vocational and Technical School (AVATS) were without a planning principal during the entire process of planning (and, as of this writing, are without principals for the opening of the program in September.) It must be noted that occasionally in the absence of a planning principal, the task forces, headed by an area superintendent with an interest and background in the Arts, has come forward with a credible plan and an enthusiastic group of teachers are prepared to put it into effect.

:n other cases weak principals, non-knowledgeable assistant superintendents, and task forces have so compromised the planning process that the Court, upon evidence and recommendations by the DMC, has delayed the implementation of the magnet programs at schools, thereby denying children the benefit of the desegregation plan.
The difficulty in planning exists on two levels. First, the quality of the personnel responsible must be assured and then monitoring by the district and DMC must occur. Second, the task force system, especially at the building level, needs to be continuously assessed and where weaknesses exist, strengthened early in the planning process. The DMC observed task forces in operation constituted by well-meaning but inexpert teams of parents and teachers incapable of articulating a coherent concept for their magnet much less likely to successfully plan and implement the program.
The District has attempted to deal with these shortcomings in two ways. Administrators and resource personnel already committed to other assignments have been called in at the last minute to shore up the effort. In one case a Math-Science resource person was among those drafted to help with a Latin Srammar theme. What good that might have been done to the Latin Grammar magnet must be balanced by the loss to the Math-Science magnets. The second approach was to suggest that parallel district task forces could cover the planning for weak building task forces. Unfortunately, this led to little ownership of a magnet curriculum or plan by a principal or teacher group which did not participate in its formulation.
Under these circumstances, the successful implementation of magnet programs must be compromised. The ability of such a team to "sell" the school and theme to prospective parents must be questioned. The timely preparation of facilities and acquisition of materials, and the orderly launching of a credible magnet school must be put seriously in doubt. Both the educational values and the desegregative attractiveness at poorly planned
50

magnet schools are compromised. 7Jnder such conditions there is

little reason to go forward with the funding and opening of the

program, as was the case at Martin Luther King, AV 'S and the

Southeast Elementary School.

RECOMMENDATION :

The highest levels of the central office

administration should establish clear timelines and quality

criteria for the planning and opening of new magnet schools.

RECOMMENDATION:

The DMC should continue to review the

planning process and results, and where necessary, recommend

delay of implementation of programs and sanctions against the

KCMSD where appropriate.

EFFECTIVE SCHOOLS PROGRAM.

The implementation of the Effective Schools program

continues its slow but steady improvement. The District's

administrator responsible for this program has moved forward with

the process of regularization of criteria and improvement in the

process in planning at the school level. A number of site plans,

however, still reflect the apparent intention of planners to use

the Effective Schools funds as general slush funds at the

building level to promote projects which, however worthy, fall

far short of targeted goals: improving standardized test scores

for Reading and Math. In addition, the Effective Schools plans

all too often reflect inadequate parent participation, limited

monitoring criteria, and no evaluation criteria. That is, the

ideal of bottom—up planning can fall short of expectations

without appropriate and adequate support personnel.

RECOMMENDATION:

Continued and intensified training of

personnel involved in formulating site plans for effective

schools funding at the building level should be supported and

this should be reflected in the commitment of local resources to

this program at least at the level the program was supported

through operating funds in 1984-85.

There is also a tendency in the district to use Effective

Schools funds to replace monies no longer available from other

sources to support activities not always directly related to Reading and Math score improvement. This action on the part of the KCMSD will require much closer monitoring by the KCMSD and the DMC.
The District anticipates undertaking a study which will
correlate activities undertaken with Effective Schools funds with real changes in the Math and Reading scores. Both coordinator and this effort should be supported.

AAA IMPLEMENTATION, CLASS SIZE, PLANNING TIME.

The District retained the AAA rating from the State of

Missouri which it had acnieved last year, with certain cautions

from the AAA review board. The DMC noted adherence to the court-

ordered class size limitation, especially after the period of the

opening of school and the October reorganization had occurred.

RECOMMENDATION:

The KCMSD should give greater consideration

to even further reduction in class size for students with low

achievement.

EARLY CHILDHOOD.

The Early Childhood program continued to meet its goals in terms of numbers screened and served. There was a negative impact on the program due to the reduction in the amount allowed by the Court to pay for screening. In some cases instructors in the Early Childhood Education program were called upon to interrupt their teaching activities to perform the screening function. Difference in perceived qualification and availability of personnel may account for the difference of the KCMSD screening cost from the statewide, especially St. Louis area costs. The District is evolving toward a system which will minimize the loss of teaching time due to screening activities on the part of instructors.

52

MAGNET PROGRAMS AND THEMES.
A number of magnet programs open their doors as ordered by the Court although the readiness and attractiveness of the newly opened pro,-:rams showed considerable variation. In almost every case, some aspect of the program was lacking at the point of opening. For example, the Latin Grammar magnet was without Latin instruction during the beginning of the program, employing both court — ordered Latin teachers towards the middle of spring. One Fine Arts elementary magnet did not initiate the guest artist program until quite late in the year and important instructional pianos were lacking at another. The Computers Unlimited Middle School and High School were without computers for a good part of the year. Laboratory spaces, equipment, and a science library were not available to students beginning in the science — math high school.
Dislocations at the beginning of new programs might be expected, but by the middle of the year most of the major difficulties major had been brought under control and many of the new magnets can be considered modestly successful operations.
The Faxon Montessori program proved as attractive as had been predicted. The program benefits from a committed and knowledgeable staff, their cramped quarters not limiting their efforts.
The new Latin Grammar magnet is successful; improved standardized test scores are recorded for this program. Despite the slow beginning of Latin language instruction, both instruc tors were present by the end of the year and seemed qualified and committed. The principal's leadership in maintaining the disciplined instructional environment contributes to the success of this program.
3y and large the Fine Arts elementary schools are implementing credible programs under the Long—Range Magnet Plan. The District's evaluation office reports a slower beginning at one Fine Arts elementary. Lack of experience in the magnet theme on the part of building leadership may be a contributing factor.

The new environmental elementary, though hampered by a mid year building shift, Jid put together an educationally valuable, fully desegregated field trip experience. This trip, which received positive press coverage, moved the quality of the program toward suburban school standards.
The language magnets added two new successful elementary schools. These schools opened with few problems beyond the common transportation difficulties and continues to present, with the other foreign language magnets, and educational experience
unique to schools in the area.
Retention of the non — U.S. citizen foreign language teachers i s clearly a challenge. The District reports a 40% turnover in this group of teachers. While a trained foreign language teacher, acculterated and acclimatized to the KCMSD is a great asset to the program, the recruitment, acquisition of visas and staff development necessary to bring a teacher to that stage is an energy consuming and costly process.
The standardized test scores for English language skills reported for total and partial immersion elementary students were, as expected, below national norms. At the inception of the program this was an expectation. Close monitoring of the results of future test results will be necessary to determine the success of the program.
By and large the elementary magnets present a positive aspect in the implementation of the Court Order.
Middle school magnets confront a double task: the imple -
mentation of the district's shift to middle school structure and implementation of the magnet theme. These schools' populations still primarily reflect the neighborhood which fed the school before conversion to a magnet school. A small minority of the principals have background in the theme. In some cases, delays in staffing have left the school administration effectively innocent of people knowledgeable in the theme. The science middle schools, in particular, will need additional curricular emphasis and flexibility to serve students who are truly talented
54

or committed to a math — science education. The' Central Middle Computers Unlimited Magnet was affected
by the lack of sufficient computers to implement the theme, especially at the beginning of the year. This magnet theme could not offer the upper level courses in Logic and Mathematics due to the need to first reinforce basic math skills.
High schools, although the schools were provided with planning principals for a year, have experienced a good deal of difficulty.
The Computers Unlimited theme began without computers at Central High. The presence of equipment (the computers did arrive in the fall) alone could not guarantee full implementation of the theme. Computers Unlimited calls upon substantial changes in teaching style, changes which will occur as staff development activities change approaches long in use. Implementation of the plan allowed teachers already at Central to opt to continue after initiation of the magnet theme. Like a number of the student body, the staff might have elected to remain at the school, for reasons other than the theme's attractiveness.
Southwest High was forced to open its science — math theme at two sites, 20 minutes apart by car, to accommodate construction. The ongoing construction, lateness of finalizing student assign ments at the school, poor recruitment of students, and the need to reduce staff after the beginning of the school year made for a chaotic fall semester at Southwest. Nevertheless, a number of new special magnet courses were opened. This magnet school is working toward developing a well planned curriculum serving all levels of ability and interest in math and science. The completion of the construction work, including the planetarium, will make it a unique facility in this subject matter. However, better coordination with the middle school math — science magnets, special provision for students gifted in these areas at both middle and high school level, completion of the physical plan, recruitment of students, and appointment of a well qualified knowledgeable principal will be needed before this theme meets
55

its full potential.
STUDENT ACHIEVEMENT.
The results of the standardized tests taken by the students of the KCMSD paint a varying picture. The least heartening aspect of the results is that the results for the district remain below national averages after four years of the desegregation plan. The results of the Missouri Mastery and Achievement Tests (MMAT) indicate gains. According to the data presented by the District's educational testing office, there were gains in every subtest in each grade tested except for two instances. However, the vast majority of the changes both in the positive and negative direction were less than the 25 points considered significant. The District was reported to have improved significantly in grade three Science and Social Studies tests, grade eight Science and grade ten Reading/Language Arts. No pattern other than lower performance as the student progresses through the upper grades seems to emerge. These MMAT tests were new to the district and the results suggest that curricula are being adjusted to match the subject matter covered on the test. This may be especially true in the case of the Science subtest.
Comparison of test scores for magnet schools to non—magnet schools by achievement performance may somewhat undermine the contention that the traditional or non — magnet schools are necessarily giving second quality education to their students. Two non — magnet elementary schools still are among the highest achieving elementary schools, and a number of magnet elementary schools fell significantly below the state averages in achievement. More non — magnet elementary schools were at the low end of the achievement scale than magnet schools.
Though the third grade is perhaps a little early to expect large differences due to magnet theme to appear in testing, the Pinkerton Latin Grammar magnet did significantly better than the district averages. Pinkerton stresses basic skills and structure.
56

At the middle school level the sixth grade results were absymal; in fact, the test scores for KCMSD in some subtests were below the average for big city schools based on 1973 ITBS norms. Only the Lincoln College Preparatory magnet was above the state averages in all subtests on the MMAT and the differences were significant. Lincoln has an entrance requirement based on academic achievement, therefore, the results are not surprising.
More surprising was the very strong showing of the Middle School of the Arts. Though a school with an arts emphasis, achievement levels were second highest among the district's middle schools on all tests, including Math and Science. This contrasts with one of the math — science middle magnets which did not show a significant difference from the lowest achieving middle schools and these are non—magnet schools at this point.
At the high school level, Lincoln College Prep presented a parallel picture on the MMAT at the tenth grade level, as it did on the middle school level. The next highest scoring high school was Northeast which had one of its two magnet themes in operation this year. However, the other two magnetized high schools in the KCMSD were at the same level of achievement on this test at this grade level as the non — magnet high schools. This being the first year of implementation of the themes at these schools, radical improvements or higher scores in the theme (math—science and computers unlimited) might not have been expected yet.
The results of the tenth grade of the Law and Public Service magnet high school on the MMAT Social Studies test are somewhat higher than the district average. In addition, this school's MMAT test scores are higher than the Southwest High math—science magnet scores on other tests at this level, including Math and Science. The presence of the magnet theme does not, as yet, correlate with achievement as measured on particular tests.
There is some indication from preliminary comparisons of magnet and non — magnet school data that science achievement scores on the ITBS are improved in science related magnet schools.
It is noted the attractiveness of KCMSD schools to new patrons depends in part on the perception of educational quality;
57

•

the latest scores indicate that there i3 still work to be done.

RECOMMENDATION:

Clearly, the most striKing shortcoming in

achievement scores in the KCMSD remains at the middle and high

school level and a meaningful intervention initiative being

provided by the KCMSD is the Reading Cognition ?rogram and the

SWAS program. If the KCMSD is to address the absymal performance

at the secondary level, prompt and meaningful implementation of

the Reading Cognition and SWAS programs should occur in the

KCMSD.

STAFF DEVELOPMENT.

At present most of the staff development activity is generated at the school building level. These can be quite different in quality. Special efforts at staff development are called for where magnet programs are established in school in which a large proportion of the staff have the option to remain and elect to do so. Full commitment to the magnet theme and new techniques of teaching needed to address the theme will develop only with a carefully crafted staff development scheme. The district — wide effort in staff development being developed by the KCMSD will require a commitment of adequate resources including stipend dollars early in the budget process and these resources should be provided and supported by the district's operating funds.

58

VIDT SUBCOMMITTEE REPORT
SUMMARY OF YEAR FOUR
As stated in previous reports, the VIDT program is a most crucial element in the desegregation plan. In absence of implementation of this component, a number of minority children will probably remain in segregated schools in the immediate future.
The VIDT Subcommittee has sought input from the State of Missouri and other parties, as well as the suburban school districts (SSD's), to formulate a voluntary interdistrict transfer plan to accommodate the desegregative emphasis of the Court Order. The VIDT Subcommittee has repeatedly requested documentation from the State regarding meetings and/or communica tions with the SSD's to which no or inadequate response has been forwarded.
The committee held a meeting in November 1988 at which time eight of the SSD's were present. There was no substantive exchange of ideas at that meeting. However, one school district (Independence) did present a copy of an elaborate plan which, at the very least, offered some basis for dialogue with the district.
The committee held separate meetings with the Plaintiffs, the State Commissioner of Education, and the teacher's union representative and gained some insight as to the position of those entities represented. However, overall efforts to garner information and input from the various parties and non — parties at this juncture to move the VIDT component forward have not been overly successful.
The VIDT Subcommittee in the spring of 1988 met with the Court and indicated a willingness to formulate a plan to be submitted to the Court. This proposal was submitted on June 21, 1989, and constitutes viable options for the Court to consider in order to bring about a VIDT program as ordered by the Court more than four years ago.
59

In addition, the VIDT Committee notes the lack of effective magnet school recruitment efforts by the KCMSD has sorely undermined the ability of the district to meet its desegregative obligations. An aggressive, well — organized magnet recruitment plan and implementation thereof, is vital and required to complement any effort of involvement with the SSD's and other schools and programs relative to a voluntary interdistrict transfer program.
60

DMC STAFF OPERATIONS
During fiscal year 1983-89, the members of the DMC spent a record number of hours being responsive to the monitoring process. A total of 2,066.50 hours were spent in meetings and school visits. In addition, the members reported 2,617.50+ hours in preparation and responding to issues generated from patrons, data from parties, and independent research.
The DMC contracted with a financial consultant to assist the 3udget Committee with the analysis of district financial and budget data. In addition, the DMC engaged independent consultants to audit the financial records of the DMC, to complete an audit review of the teacher tuition and reimbursement components, and to assist with the development of a voluntary interdistrict transfer plan. These consultants were compensated on a contractual basis.
The independent auditor reviewing the DMC records suggested computerizing financial data of the committee. The office has purchased software for that purpose which will be installed relatively soon.
The budget and expenditures for the committee are as follows:

Budget

Per Diem Research Operations Financial Specialist Compensation

$ 78,000.00 39,200.00 32,193.72 37,980.00 79,481.00

TOTAL $266,854.72

Expenditure
$ 71,612.50 6,550.00
23,249.86 2,129.33
79,481.00
$183,022.69

Balance
$ 6,387.50 32,650.00 8,943.86 35,850.67 —0—
$83,832.03

The DMC members participated in greater than 200 school visitations during FY88-89. The visits were made to gather general information about the progress of the education program components, to investigate issues initiated by patrons, or to monitor the status of capital improvements projects.

61

gi
The terms of all DMC members expired on June 30, 1989. The Order dated July 5, 1989, reappointed all members with the exception of two. The new appointees are Derek Holland and John Cozad, whose terms are effective July 1, 1989 through June 30, 1991.
62

 
 RECOMMENDED REVISIONS IN THE FACILITIES RENOVATION REQUIREMENTS
FOR THE LONG-RANGE MAGNET SCHOOL PLAN
JULY 2, 1987
INTRODUCTION
These are revised recommendations for magnet school renovations. They only outlIne - therenOvatiOns necessary for the implementation of the magnet themes. They are In addition to the normal facilities for a school. Hepte, it is assumed that each school will
have the appropriate complement of classrooms, offices, gyms, etc. The square footage specified4h these recommendations are approximate. They are for the purpose of providing the Court with cost
estimate related to theimpjementatlon of the magnet plan. Further specifications in the actual design phase must take into account the realities of the space available in the various buildings, instructional designs, and program; priorities in designating space allocations.
HIGH SCHOOLS
SOUTHWEST HIGH SCHOOL
THEME: Science Math
1600 Students
Office Space:
1. Office space for a Program Administrator (1,50 sq. ft.). This should be a moderate office with a work space and'enough room•,for a small conference table.
2. Office spaces for a Curriculum Coordinator (225 sq. ft.) office should have a work area, storage and display areas ibr books and materials, and a conference area for small groups of' teachers.
Classroom Areas:

Transition Rooms. Two and one-half (2 1/2) regular classrooms should be converted for use by five (5) transition teachers.
Every regular classroom should be wired for fifteen microcomputers that can be networked or used as stand atones. There are numerous computers scheduled to be bought for this school. Every classroom should:be air conditioned secure, and alarm protected.

Specialty Areas

3. Biology Lab (1875 sq. ft.). This room should be wired for thirteen (13) electrified lab tables. There should be sufficient storage fOr twenty -six microscopes and other supplies.

4. Chemistry:Lab:(1875 Sq„ ft.). The room should be wired for thirteen (13) electrified'-and gas tables. There should be sufficient storage for chemicals, glassware, etc.

5. Physics Lab (1875 sq.' ft.). The room should be wired for thirteen (13) electrified tables. There should be sufficient storage for physics equipment and supplies.

6. Computer Lab (2,000 sq, ft.).

room should be wired for

twenty-six (26) microcomputers that can be networked or used as

stand atones. The room should be air conditioned and treated for

sound. The room should be secure and alarm protected. This area

should Include an individual computer lab which is separate from

the class for individual and independent instruction. This lab

(500 sq. ft.) should be wired for eight computers.

7. There should be a Planetarium (2,b00 81% :

This will

require special wiring and light treatment ofthe room. It should

accommodate at least sixty persons. The room Should also be air

conditioned, secured, and alarm protected.

8. There should be a Science Library (1,200 sq. ft.). This area should be complete with shelving', Study carrels, and large tables.

9. There should be a Greenhouse (2, ,000 sq. ft.). This area should be similar to the one at Center Hig, h School, with all proper facilities. The Greenhouse should include an area tp. be,Used as a vivarium.
10. There should be an Individual projects lab of 1200 sq. ft. This room should be equipped with lockers where students can secure their projects.

EAST HIGH SCHOOL THEME: Environmental Science Agribusiness
PAGE-2- KANSAS CITY MISSOURI SCHOOL DISTRICT

•■•■••••
1300 Students
Of f ice Space:
`1 . .Office space for two Program Administrators (150 sq. ft. each). These should be .moderate offices with a work space and enough room for a small conference table.
2. Office spaces for two Curriculum Coordinators (225 sq. ft. each) These offices should have a work area, storage and display areas for books and Materials, and a conference area for small groups of teachers,
Classroom Areas:
Transition Rooms. Two and one-half (2 1/2) regular classrooms should be converted for use by five (5) transition teachers.
Specialty Areas:
Agribusiness:
1. There should be a twenty-five acre Farm as part of this program. The farm should be ,a working farm with a barn for animal and equipment storage. An *Or conditioned meeting room that will accommodate one-hundred, four ()04), people should be on the premises. There should be a kitchen and cafeteria that will accommodate one-hundred, four . (104) people. There ,Should be black topped parking for twenty-five (25) cars and four (4) school buses. There should be a shop for equipment repair and proper fencing for the farm animals. In addition,ithere needs to be a small apartment for the caretaker. This facility need not be physically close to the school building.
Environmental Science:
1. As part of the land acquisition for the farm, additional land (twenty-five acres) should be obtained . This should be wild land that will remain wild. This area will be used 'by the students in the Environmental Science Magnet to study nature.
2. There will need to exist a large fully equipped greenho4i6 on the school campus.
3. There should be an Animal Room as part of this magnet school (1,875 sq. ft.). This facility should serve to contain animals that are part of the environmental program as well'asthose brought in from the farm.
PAGE-3- KANSAS CITY MISSOURI SCHOOL DISTRICT

4. There should be an Earth Environmental Lab of 1200 sq. ft.
SOUTHEAST HIGH SCHOOL
THEME: Health Professions; International Studies
1150'Students
Offlce Space:
14Offce , space for two Program Administrators (150 sq. ft. each).
These should be moderate offices with work spaces and enough room for a small conference table.
2. Office space for two Curriculum Coordinators (225 sq. ft.
each). These offiCesthogid have work areas, storage and display
areas for books and;materials, and a conference area for small
groups of teachers.

3. There should be a clerical office of 75 s . ft.

Classroom Areas:
Transition Rooms. Two and one=halo" (2 1/2) regular classrooms
should be converted for use by five (5) transition teachers.
Specialty Areas:

Health Professions:

1. There should be a Language Lab (1,875 sq. ft.). These rooms should be wired to accommodate twenty-six (26) integrated language units.

2. Science Labs: There should exist

buildinv6tght (8) well

equipped science laboratories. These faCilitiesshould contain
sufficient storage space for equipment, Chemicals, etc. The labs

should be 1,,875 sq. ft. in size.

a. Chemistry Lab

b. Physics Lab

c. Biology Lab

d. Nursing Lab

e. Dental Lab

f. Medical Lab

g. Hospital Lab

h. Emergency Lab

3. Remodel the Home Economics area as a hospital support lab. This lab will have facilities for food preparation and service, laundry, etc.

PAGE-4- KANSAS CITY MISSOURI SCHOOL DISTRICT

International Studies:

1. Model United Nations Lab. There should be an 1,875 sq. ft. room for a model United Nations. The facility should have a spectator area for thirty (30) people and other facilities to model the United Nations. This facility should be wired for language translation.

2. Language Labt. There should exist two language labs and three

small teaching areas. These rooms should be wired to accommodate

twenty-six (26) Integrated language units. The total space for

this

should be 3750 sq. ft.

3. Film and Tape Viewing, Room. A room (1,400 sq. ft.) should be divided Into several FROlyjdual sound proof film and tape viewing rooms.

VAN HORN HIGH SCHOOL
THEME: Engineering and Technology
1250 Students
Office Space:
1. Office space for a Program Administrator (150 sq. ft.) , This should be a moderate office with-a work space and enough room for a small conference table.
2. Office space for a Curriculum COordinator (22 .5 sq. ft.). This office should have a work area, storage and display areas for books and materials, and a conference area for small groups of teachers.

3. There should be a clerical office of 75 s . ft.
Classroom Areas: Transition Rooms. Two and one-half (2 1/2) regUlar classrooms should be converted for use by five (5) transition teachers.

Specialty Areas:
1. .There should be 2 Computer Assisted Design (CAD) Labs. These should be large computer labs (1,875 sq. ft.). These rooms should be air-conditioned, secured, and alarmed. The rooms should be

PAGE-5- KANSAS CITY MISSOURI SCHOOL DISTRICT

wired to accommodate a mainframe computer and twenty-five terminals.
2. New Wing. A new wing should be added to the building for engineering and technology. Each classroom should contain large storage for specialized equipment and be at least 1,875. This facility should house two (2) of each of the following laboratorles: a. Chemistry Labs b. Physics Labs c. Biology Labs d. Electronic Labs e Robotics Labs
WESTPORT HIGH SCHOOL
THEME: Communications
:1400 Students Office Space: 1. Office space for twoPrOgram Administrators (150 sq. ft. each)
. These should be '"moderate offices with work spaces and enough
room for a small;;" conference table.
2. Office space for two Curriculum- Coordinators (225 sq. ft. each). These offices should have a work area, storage and display areas for books and materials, and a conference area for small groups of teachers.
3. There should be a clerical off4ce of 75 sq. ft.
Classroom Areas:
Transition Rooms. Two and one-half (2 1/2) regular classrooms should be converted for use by flvek(5) transition teachers.
Specialty Areas: Communications and Writing:
1. There should be a Computer Lab (1,000 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand atones. The room should be airconditioned and treated for sound. The room should be secure and
PAGE-6- KANSAS CITY MISSOURI SCHOOL DISTRICT

alarm protected. There should be sufficient storage space for supplies and equipment.
2. There should be a large Auditorium with film and tape capability and a complete projection booth and the capability of large screen video.
3. There should pe,a Microwave Dish that is connected to the closed-circuit television facility. The Dish should be capable of "up load" and "down load".
4. There should be a closed circuit television station with cable broadcast capabl f i ty
5. There should be a broadcast capable radio studio in the building.
6. There is a need for a photography lab which will include a darkroom. The lab should be at least 500 sq. ft. and be adjacent to a classroom which will be Used for photography instruction.
7. There is a need for•a POnting Lab (2,000 sq. ft.) with proper wiring and storage.
8. There should be an Editing and Animation Lab (1,400 sq. ft.). This lab should feature excellent lighting, numerous electric outlets, and large storage areas.
Business:
1. There should be a Computer Lab (1,000.sq.',,ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand atones. The room should be airconditioned and treated for sound. The room Should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.
2. There should also be a Mainframe Computer Lab (1875 sq. ft.). This room should be air conditioned, secure, and alarm protected. The room should be wired to accommodate a mainframe computer and twenty-six terminals.
3. There should be a Wordprocessing Lab (1,875 so,. t%). The room should be wired for twenty-six (26) wordprocessOsnetworked, and linked to a high speed printer. The room : ehqUid be air conditioned and treated for sound.
4. There should be an Office Simulatioh Lab (1,875 sq. ft.). This
room should feature a complete office with stations for .twenty-sic
students.,
5. One (1) Language Lab (1,875 sq. ft.). This room should be wired to accommodate twenty-six (26) Integrated language units. This will provide a classroom for a budgeted resource teacher.
PAGE-7- KANSAS CITY MISSOURI SCHOOL DISTRICT

6. Five (5) regular classrooms should be wired for ten microcomputers that can be networked or used as stand alones. These classrooms should be secured and alarm protected.

PASEO HIGH SCHOOL

THEME: Performing and Visual Arts

1200 Students

Office Space:

1. Office space for a Program Administrator (150 sq. ft.) . This
should be a moderate office with a work space and enough room for a small conference table.

2. Office space for a Curriculum Coordinator (225 sq. ft.). This
office should have a work area, storage and display areas for

' books and materials, and a conference area for small groups of

teachers.

‘

3. Office space for the Trainer. This space should be adequate for examinations and Include a workspace. The room should include
adequate storage spacefor su p plies , and `' materials.

Specialty Areas:

1. Dance Studio. There should •be two large rooms (2,000 sq. ft.) complete with hardwood floors, bars, and 'mirrors.

2. Photography Lab. The photography lab sho61d'pe a specially designed room (500 sq. ft.)"with water, lightIng shelves, etc. This lab should be adjacent to a classroom for photography classroom Instruction.
3. Painting Lab. The printing lab should be a large room (1,625 sq. ft.) to accommodate thirteen (13) art tables and storage for supplies. The room should have two sinks, in more than one location.

4. Ceramic Lab. The ceramic lab should be a large room (2,000 sq. ft.) to accommodate twenty-six (26) potters wheels. The'-room:
should have two sinks, in more than one locatjon. There_should be adequate storage for art supplies and four kilns.

5. Auditorium. There should be a large (1,000 seats) auditorium. The stage should be in condition for ballet. It should be weri lighted, have stage curtains, a sound system, acoustic which are_ designed for both dramatic and instrumental productions. The seating should be comfortable.

6. Set Design. There should be a large (1,875 sq. ft 4 ) facility near the auditorium for set design. This facility shbuld be well lighted and have numerous electrical outlets.

PAGE-8- KANSAS CITY MISSOURI SCHOOL DISTRICT

7. Auditorium Recording Studio. There should be a recording stud io adjacent to the auditorium. This facility should be wired for recording, ,: Of both audio and video, of activities In the audito3iUm. This room should be acoustically treated and approximately 600'sq. ft.
8. Movie Editing. There should be a small room for movie editing. The room should contain several electrical jacks and approximately 400 sq. ft.•
S. Movie'ScreenIng. There should be a small room with approximately twenty -„six (26) seats for screening movies. The room should have a bull t-in projection booth (properly wired) and comfortable seating', 'The room should be approximately 800 sq. ft.
10. Art Gallery. There should be a properly lighted and temperature controlled art gallery. The facility should be approximately 1,875 sq. ft. and contain proper display shelving.
11. Graphic :Design Studio'. There should be a large space allocated to graphic design. .114 room (1,875 sq. ft.) should accommodate twenty-six (26) artists stations.
12. Ceramics Studio. There should be a large studio equipped with twenty-six (26) potters wheels. The room will require special w iring and lighting. In addition, at least four large sinks should be located in two places. The room should be 1,875 sq. ft.
13. Little Theater. There"should be a little theater. This facility should have a,Stage, seating,lor 125, stage lighting,
comfortable seating, a sound system, etc.
14. Instrumental Music. There should be a large room (2,000 sq. ft.) with built-in risers, acoustical treatment, proper lighting, and plugs for lighted instrument stands. There should be four (75 sq. ft.) acoustically treated music practice rooms and sufficient space for instrumental and music storage.
15. Vocal Music. There should be a large room (1,500 sq. ft.) w ith built-in risers, acoustical treatment, proper lighting, and sufficient storage space. Two acoustically treated `(75 sq. ft.) practice rooms should exist in the facility.
16. Music Room Recording Studio. There should be a sma1.4,-,i5'ecording studio between the two music rooms that Is wired directly to both practice and large rooms. The'room should be acoustically treated and approximately 200 sq. ft.
17. Art Library. An additional large classroom (1,200 sq. ft:.) complete with shelving, study carrels, and large table 'will be necessary. The facility will need extra electrical 9utlets for projectors, viewers, etc.
18. Individual Study. A large room (2,000 sq. ft.) will need to
PAGE-9- KANSAS CITY MISSOURI SCHOOL DISTRICT

be subdivided into several small studios. These studios would vary in form and size. They should be equipped for ceramics, instrumental music practice, vocal practice, etc.
19. There should be four (4) practice rooms (300 sq. ft.). Each of these rooms should be able to be subdivided into four (4) 75 sq. ft. individual practice areas.
KANSAS CITY TECHNACAL : CENTER
THEME: Vocational and Technical
1200 Students
Office Areas:
1. Office space for a Program Administrator (150 sq. ft.) . This should be a moderate office with a work space and enough room for A small conference table.
2. Office space for a Curriculum Coordinator (225 sq. ft.). This office should have a work area, storage and display areas for books and materials, and a.COnference area for small groups of teachers.
Classroom Areas:
Additional High School Facilities: a. Complete outdoor athletic facilities b. Complete Indoor athletic facilities c. Complete cafeteria d . Complete music facilities e . Complete art facilities f. Expanded auditorium g . There should be at least fifty (50) teaching stations that can be used as academic classrooms.
Specialty Areas:
The following specialty labs: a. Aircraft, Airframe, and Power Plant Maintenance (10,8501sq. ft.) b. Vehicle Structural Reconstruction. This area must include a re-servicing facility with an isolated painting booth. c. Cosmetology d . Diesel Mechanics. This room should beat least 3500 sq. ft. and include a dust free room.
e . Machine Tool technology. There should be four (4) labs for
Machine Tool technology of at least 3700 sq. ft. In addition there should be a room of 500 sq. ft. for computer tape cutting. f. Printing and Graphics Arts This room should be at least 4,450 sq. ft. g. Welding. There should be two (2) labs of at least 0,050 sq. ft. each.
PAGE-10- KANSAS CITY MISSOURI SCHOOL DISTRICT

h. Fiber optics. This lab should include project storage (200 sq. ft.), tool storage (200 sq. ft.) and a related classroom (750 sq.
ft )
I. Robotics, Hydraulics, and Pneumatics. This should be a lab of 3000 sq. ft. This lab should include project storage (200 sq. ft.), tool storage (200 sq. ft.) and a related classroom (750 sq.
ft )
J. Basic Auto and Small Engine. This should be a lab of 3000 sq.
ft. This lab should include project storage (200 sq. ft.), tool storage (200 sq.ft.) and a related classroom (750 sq. ft.).
k. Electronic Ignition and Air conditioning. This should be a lab Cf 3000 , §q. ft. This lab .,,should include project storage (200 sq. ft.), toot storage (200 sq. ft.) and a related classroom (750 sq.

I. Engine Repair. This should be a lab of 3000 sq. ft. This lab

should include project storage 1200 sq. ft.), tool storage (200 sq. ft.) and a related ClaSsroom (750 sq. ft.).

m. Automatic Transmission. This should be a lab of 3000 sq. ft. This lab should include project storage (200 sq. ft.), tool storage (200 sq. ft.) and ,,;, a related classroom (750 sq. ft.).
n . Interior Electrical Shop. This should be a lab of 2000 sq. ft This lab should inc, lude project. storage (200 sq. ft.), tool storage (200 sq.ft.) and a related ' classroom (750 sq. ft.).

o . Exterior Electrical Shop. This should be a lab of 2000 sq. ft. This lab should include project storage (200 sq. ft.), tool storage (200 sq. , ft..1• and a related Classroom (750 sq. ft.). p. Basic Electronics Lab. This should be a lab of 2000 sq. ft.
This lab should include project storage (200 sq. ft.), tool storage (200 sq. ft.) and a related classroom (750 sq. ft.). q . Industrial Electronics Lab. Thia'should be a ., lab of 2000 sq. ft. This lab should include project storage J200 sq. ft.), tool storage (200 sq. ft.) and a related Classroom (750 sq. ft.).
3 . Avionics Lab. This should'be a lab, of 2000 Sq. ft. .This lab

should include project storage (200 sq ft.), tool storage (200
sq. ft.) and a related classroom (750 sq. ft.). s. Commercial Electronics Lab. This Should be a lab of 2000 sq. ft. This lab should include project storage (200 sq. ft.), tool storage (200 sq. ft.) and a related classroom (750 sq. ft.).

t. Construction Trades Lab. This should be a lab of 3000 sq. ft.

This lab should include project storage (200;

ft.), )66) sto-

rage (200 sq. ft.) and a related classroomm -1750 sq.

u . Computer Maintenance Lab. This should be a lab of 2000'sq. ft.

This lab should Include project storage (200 sq. ft.), kboi,-sto-

rage (200 sq. ft.) and a related classroom (750 sq..4 3 . Drafting (CAD) Lab. This should be a lab of 2500 s4. ft.

This lab should Include
rage (200 sq. ft.) and
w . Energy Studies Lab. This lab should include
rage (200 sq. ft.) and

project storage (200 sq. ft.)`, tool stoa related classroom (750 sq. ft.). This should be a lab of 2500 sq. ft. project storage (200 sq. ` ft.), too) sto-
a related classroom (750 sq. ft.):

PAGE-11- KANSAS CITY MISSOURI SCHOOL DISTRICT

MIDDLE SCHOOLS.

NOWLIN MIDDLE SCHOOL
THEME: EnVironmental Science
1200 Students
-Office,Space:
OffICe space for a Cdrrl.culum Coordinator (220 sq. ft.) . This
office should have a work area, storage and display areas for
books and materials, and a conference area for small groups of teachers.
Classroom Areas:
Every regular classroom shoUld be wired for ten microcomputers that can be networked or used as stand alones. Initially, there will be one hundred (100) computers 1n the school. Every classroom should be air conditioned, secure, and alarm protected.

Transition Rooms. Two regular classrooms should be converted for use by four transition teachers.
Specialty Areas:
1. There should be two Computer Labs (1,000'td. ft.). These rooms should be wired for twenty-six (26) microcomputers that can be networked or operate as stand alones.],' The rooms Should be airconditioned and treated for sound. The rooms should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.

2. Log Cabin. A log cabin should be constructed on the grounds as an outdoor education center. The butiding should be usable year around, therefore, it should be heated, lighted, and have toilets, and other water facilities. It should have sufficient Siz,room to accommodate twenty-six (26) people.

3. Amphitheater. / There should be constructed ap amptIltbeaer

which will accommodate one hundred and four (404),s .Sidents. This

facility should have electrical power for Ifght.Thg and portable

power equipment as well as storage space.

e'

24. Botany lab. There should be a botany lab on the grounds,,

25. Greenhouse. A greenhouse, similar to the one at Center High School, should be constructed on the site.

4. Environment Resource Room. There should be an environmental resource room in each building. A regular classroom will:,suffice.

PAGE-12- KANSAS CITY MISSOURI SCHOOL DISTRICT

7. Animal Storage. A small barn for live animal storage should be constructed on the grounds. There should be fencing for the animals outside the barn.
8. Preparation Rooms. There shall be two (2) preparation rooms at 400 sq. ft. for use as offices and resource rooms by the resource teachers.
NORTHEAST MIDDLE SCHOOL,
THEME: Classical Greek
1200 Students
Office Areas:
1. Office' Space for a-CUrriculum Coordinator( 220 sq. ft.) . This ,office should have a-work area, storage and display areas for
books and materials, and a conference area for small groups of teachers.
Specialty Areas:
1. There should be a Forum area (1,875 sq. ft.). This should be a flexible facilitN)or multi-purpose room that can be configured for a number of different activities appropriate to a classical Greek theme. The room should feature,thOyJe screens ) a sound system that allows for the flexible placement of microphones, facilities for debate and forensics, facilities for'student,,government and representative assemblies. The forum should' have hook ups for video tape and play back.
2. There should be a Computer Lab (1,000 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand atones. The room should be airconditioned and treated for sound. The room should be secure and alarm protected. There should be sufficient storage space , for supplies and equipment.
3. Outdoor Track. There should be an outdoor 400 meter cinder track.
4. Tennis Courts. There should be four regulation size tennis courts.
5. Soccer Field. There should be a regulation soccer fleldhat can be used as a football field.
6. Swimming pool. There should be a swimming pool available for use in the program.
PAGE-13- KANSAS CITY MISSOURI SCHOOL DISTRICT

7. Showers and Lockers. There should be a separate shower and locker facility available for student use. This area should
Include a facility to be used as a training area by the trainer.
8. Softball Diamond. There should be a regulation softball diamond with a Cyclone fence back stop.
9. Gymnastics Facility. There should be a facility in the school ;`"for gymnastics. The gymnasium could be utilized.
i0. Storage. There is a need for a large storage facility for the athletic ..;equipment.

11. Preparation Rooms. There should be two preparation rooms at 400 sq. ft. each to be used as offices and resource areas by the resource teachers.
12. Transition Rooms. TWO regular classrooms should be converted for use by four transition teachers.

WESTPORT MIDDLE SCHOOL

THEME: Communications-

1150 Students

Office Areas:

Office space for a Curric •jum Coordinator (220 sq. ft.). This

office should have a work ,

, storage and display areas for

books and materials, and a conference area for small groups of

teachers.

Transition Rooms. Two regular classrooms should be converted for use by four transition teachers.
Classroom Areas:
Five (5) regular classrooms should be wired for tweniy-five MlcrAr
computers that can be networked or used as stand atones. These classrooms should be secured and alarm protected.
Specialty Areas:
1. Auditorium. The existing large auditorium should be renovated to provide a film and tape capability. There should be a projection booth and facilities for large screen video.
2. Television Station. There should be a studio for videotaping.

PAGE-14- KANSAS CITY MISSOURI SCHOOL DISTRICT

The room should be soundproof and have built-In lighting for video recording. The room should be approximately 2500 sq. ft.
3. Photography Lab. There is a need for a photography laboratory. This room should include a darkroom, be at least 500 sq. ft., and be adjacent to .a regular classroom where photography classes will be taught.
4. Editing and Animation Lab. A room (1,400 sq. ft.) with excellent lighting, numerous electric outlets, and large storage areas.
5. Preparation Rooms. There should be two preparation rooms at 400 SQ. ft. each to be used as offices and resource areas by the resource teachers.
KING MIDDLE SCHOOL THEME: Latin Middle
900 Students
Office Areas:
Office space for a Curriculum Coordinator(220 sq. ft.) . This office should have a work area, storage and display areas for books and materials, and a conference area for small groups of teachers.
Classroom Area:
Every regular classroom should be wired for ten microcomputers that can be networked or used as stand atones. Initially, there will be 200 computers in the school. Every classroom should be air conditioned, secure, and alarmdprotected.
Transition Rooms. Two regular classrooms should be converted for use by four transition teachers.
Specialty Areas:
1. There should be a Computer Lab (1,000 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand atones. The room should be all-conditioned and treated for sound. The room shoUld be secure. and alarm protected. There should be sufficient storage space for supplies and equipment.
PAGE-15- KANSAS CITY MISSOURI SCHOOL DISTRICT

2. Preparation Rooms. There should be two preparation rooms at 400 sq. ft. each to be used as offices and resource areas by the resource teachers.
ELEMENTARY SCHOOLS
WEEKS ELEMENTARY SCHOOL
THEME: Science/Math
60() StUdents
Classroom Area:
Every regular classroom should be wired for fifteen (15) microcomputers that can be networked or used as stand atones. Initially, there will be 300 computers in the school. Every classroom should be air conditioned, secure, andAllaritl protected.
0 Specialty Areas:
1. There should be an Animal Room (1,675 Sq. ft.). This facility should be a facility for animals as part of the ZOO Project. The room should be adjacent an outsidefenced area for the animals to exercise. There should be adequate storage for supplies and feed.
2. There should be a classroom (850 sq. , it.) for .the Resource Teacher that is not associated with a specialty lab.
3. There should be a Computer Lab (1,875 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand atones. The room should be airconditioned and treated for sound. The room should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.
4. There should be a General Science Lab (1,500 sq. ft.). There should be twelve (12) science tables. The space/In the t440 should
be divided with 1000 sq. ft. for the lab and ZOO sq. ft. for-a. teacher preparation room and storage.
5. Eliminate the Planetarium that was in the original specifications.
THREE TRAILS ELEMENTARY SCHOOL
THEME: Science/Math
300 Students
PAGE-16- KANSAS CITY MISSOURI SCHOOL DISTRICT

Classroom Area:
Every regular classroom should be wired for five microcomputers that can be networked or used as stand alones. Initially, there will be 75 computers in the school. Every classroom should be alr conditioned, secure, and alarm protected.

Specialty Areas:o
There should bean Animal Room (1,875 sq. ft.). This facility should'be a facility fbr animals as part of the ZOO Project. The room should be adjacent ,an outside fenced area for the animals to exercise. There should be adequate storage for supplies and feed.

3. There should be a Computer Lab , (1,875 sq. ft.). This room
`should be wired for twenty-six (26) microcomputers that can be ' networked or operate as stand alones. The room should be air-
conditioned and treated for sound. The room should be secure and alarm protected. There should be - sufficient storage space for supplies and equipment.

4.Thereshouldbea,'General Science should be twelve (12) science tab!es.

Labin1è1,s5p0a0cesqi.n

ft.). There the lab should

be divided with 1000 sq. ft. for the Lab and 500 sq. ft. for a

teacher preparation room and storage.

WHEATLEY ELEMENTARY SCHOOL THEME: Science/Math 450 Students

Classroom Area:
Every regular classroom should be wired for fivem4crocomputrs that can be networked or used as stand alones. Initially, there
will be 75 computers In the school. Every classroom should-be air
conditioned, secure, and alarm protected.

Specialty Areas:

1. There should be an Animal Room (1,875 sq. should be a facility for animals as part of

f.t.). the ZOO

This facility Project. The

room should be adjacent an outside fenced area for the 'animals to

exercise. There should be adequate storage for supplies and feed.

PAGE-17- KANSAS CITY MISSOURI SCHOOL DISTRICT

2. There Should be a Computer Lab (1,875 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand alones. The room should be airconditioned and treated for sound. The room should be secure and alarm protected..There should be sufficient storage space for supplies and equipment.
8.ThereShould be_a General Science Lab (1,500 sq. ft.). There betwelve'(12) sc i ence tables. The space in the lab should
bej dIVIded-With 1000Ad.,ft. for the lab and 500 sq. ft. for a teacher preparation ropMand storage.
RICHARDSON ELEMENTARY SCHOOL
THEME: Computers 475 Students
Classroom Area:
Every regular classroom should be wired for ten microcomputers that can be networked or used as stand alones. Initially, there will be numerous computers in the school'. Every classroom should be air conditioned, secure, and alarm protected.
Specialty Areas:
1. There should be a Computer Lab (1 . ,875 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand alones. The room should be airconditioned and treated for sound. The room should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.
2. There should be a Computer Resource classroom (850 sq. ft.) for
the Resource Teacher that is not associated with'a specialty lab.
NEW SOUTHEAST ELEMENTARY SCHOOL
THEME: Computers; Classical Greek; Gifted and Talented
1800 Students in 3 schools of 600 each
Specialty Areas:
Computers:
PAGE-18- KANSAS CITY MISSOURI SCHOOL DISTRICT

1. There should be a Computer Lab (1,875 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand alones. The room should be airconditioned and treated for sound. The room should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.
2. Every regular classroom should be wired for ten microcomputers that carviie networked or used as stand alones. Initially, there will be numerous computers in the school. Every classroom should be air Conditioned, secure, and alarm protected.
3. There should be a Computer Resource classroom (850 sq. ft.) for the Resource Teacher that is not associated with a specialty lab.
Classical Greek:
1. There should be a Forum area (1,200 sq. ft ) This should be a flexible facility or multi- purpose room cti nat Can be configured for
a number of different activities appropriate to a classical Greek theme. The room shoulcr'featbre movie screens, a sound system that allows for the flexibleplacement of mil' hones, facilities for
debate and forensics, facilities for'Sji dr oe Ll government and repre-
sentative assemblies. The forum should flave hookups for video taping and play back.
2. Outdoor Track. There should be an outdoor 400 meter cinder track.
3. Soccer Field. There should be a regulation soccer field that can be used as a football field.
4. Indoor pool. There should be a swimming pool available for use in the program.
5. Showers and Lockers. There should be a separate shower and locker facility available for student use.
6. Softball Diamond. There should be a regulation oftball diamond with a cyclone fence back stop.
7. Outdoor Ball Games. There should be marked spaces for such games as four-square.
8. Gymnasium. There should be a well equipped gymnasium.
9. Storage. There is a need for a large storage facility for the athletic equipment.
Gifted and Talented:
PAGE-19- KANSAS CITY MISSOURI SCHOOL DISTRICT

1. Auditorium. The building should have a 400 seat auditorium. The facility should be well lighted, particularly in the stage area. There should exist a good sound system, stage current, good seating, and the facility should be comfortable.
2. Dance Studio. There should exist a dance studio (1,200 sq. ft.) with a special floor, mirrors, and bars.
3. Music Room. "`There should exist a room for both vocal and Instrumental ` music. The room should be 1,200 sq. ft. acoustically treated and have bullt L in risers. There should also exist large locked storage areas. The room should be secure and alarm protected. There, also,, should be two practice rooms, within the classroom, that are acoustically treated.
4. Visual Arts Room. There should exist a visual arts room. A standard size classroom will suffice.
5. Art Room. An art room (1,200 sq. ft.) should exist in the building. This room should accommodate thirteen (13) art tables. There should be four sinks, in two different locations, within the room. The room should be well lighted and have approximately 200 sq. ft. of storage space.
6. Project Lab. There should be a Project Lab (1700 sq. ft.) for individualized and Independent study. This room should have secure storage for student projects.
7. There should be a Computer Lab (1 000 Sq. - ft.). This room should be wired for twenty-six26) microcomputers that can be networked or operate as stand alones. The room should be airconditioned and treated for sound. The room should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.

8. Every regular classroom should be wired for ten ml,Crocomputers

that can be networked or used asstand alones.

there

will be numerous computers in the school'. Every,dlaSroom should

be air conditioned, secure, and alarm protect0.

ATTUCKS ELEMENTARY SCHOOL THEME: Communications 400 Students Specialty Area:

PAGE-20- KANSAS CITY MISSOURI SCHOOL DISTRICT

1. There should be a Computer Lab (1,000 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand alones. The room should be air-_ conditioned and, treated for sound. The room should be secure and alarm protected. There should be sufficient storage space for supplies and equipment.
2. There should be a (1) classroom (850 sq. ft.) for the Resource Teacher who is not associated with a specialty lab.
TROOST ELEMENTARY SCHOOL.
THEME: Communications
500 'Students
Specialty Area:

1. There should be a'

Lab (1,000 sq. ft.). This room

should be wired for twenty-six (26) microcomputers that can be

networked or operate as stand atones. The room should be alrconditioned and treated for sound. :The room should be secure and

alarm protected. There' should be sufficient storage space for sup-

plies and equipment.

2. There should be a (1) classroom(850 sq. ft.) for the Resource Teacher who is not associated with a-specialty lab. GARFIELD ELEMENTARY SCHOOL THEME: Classical Greek 500 Students
Specialty Area:

1. There should be a Forum area (1,200 sq. ft.). This should be a flexible facility or multi-purpose , room that Can be configured for a number of different activities aPpropriate to a ciassiCal Greek theme. The room should feature movie screens, a sound system that allows for the flexible placement of microphones, facitities for debate and forensics, facilities for student government and representative assemblies. The forum should have hoOkUps:for video taping and play back.

2. Outdoor Track. There should be an outdoor' 400 meter Cinder track.
3. Soccer Field. There should be a regulation soccer field that can also be used as a football field.

PAGE-21- KANSAS CITY MISSOURI SCHOOL DISTRICT

4. Indoor pool. There should be a swimming pool available for use
in the program.
5. Showers and Lockers. There should be a separate shower and locker facility avallable for student use.
6. Softball Diamond. There should be a regulation softball diamond with a cyclone fence back stop.
7., Outdoor Ball Games. There should be marked spaces for such games as four-square.
8. Gymnasium. There should be a well equipped gymnasium.
9. Storage. There is a need f or a large storage facility for the athletic equipment.
10. Basketball Court. There should be an outdoor basketball court.
PITCHER ELEMENTARY SCHOOL
THEME: Classical preek.
400 Students
Specialty Area:
1. There should be a Forum area -(1,200 sq. ft.). This should be a flexible facility or multi-purpose room that can;. configured for
a number of different activities appropriate to A- , classical Greek theme. The room should feature movie screens, a sound system that allows for the flexible placement of microphones, facilities for debate and forensics, facilities for student government and representative assemblies. The forum should have hookups for video taping and play back.
2. Outdoor Track. There should tie an outdoor 400 meter Cinder track.
3. Soccer Field. There should be a regulation soccer field that can also be used as a football field.
4. Indoor pool. There should be a swimming pool ava lable for Use in the program.
5. Showers and Lockers. There should be a separate shower and locker facility available for student use.
6. Softball Diamond. There should be a regulation softball diamond with a cyclone fence back stop.
4. Outdoor Ball Games. There should be marked spaces for such
PAGE-22- KANSAS CITY MISSOURI SCHOOL DISTRICT

games as four-square. 8. Gymnasium. There should be a well equipped gymnasium. 9. Storage. There is a need for a large storage facility for the athletic equipment. 10. Basketball ,.Court. There should be an outdoor basketball court. NEW NORTHEAST ELEMENTARY SCHOOL
THEME: Latin Grammar 600 Students Specialty Areas: 1. There should be a Computer Lab (1,000 sq. ft.). This room should be wired for twenty-six (28)',microcomputers that can be networked or operate as stand aid:nes. The room should be airconditioned and treated for sound : . The room should be secure and alarm protected. There should be sufficient storage space for suppiles and equipment.
PINKERTON ELEMENTARY SCHOOL THEME: Latin Grammar 400 Students Specialty Areas: 1. There should be a Computer Lab; (1,000 sq. ft.). This room should be wired for twenty-six (26) microcomputers that can be networked or operate as stand alohes. The room should be airconditioned and treated for sound. The room ,should be:secure and alarm protected. There should be sufficient ttorage,tpace for supplies and equipment.
FAXON ELEMENTARY SCHOOL THEME: Montessori 350 Students Classroom Areas: 1. Projections for the capacity of Faxon should reflect a maximum class size of twenty which is well below that of other magnets and
PAGE-23- KANSAS CITY MISSOURI SCHOOL DISTRICT

.4
the Court ordered class size reductions.
2. There 'Should exist six (6) 1,200 sq. ft. classrooms equipped with two bathrooms (boys and girls), drinking fountains, and sinks; These rooms are to be utilized for pre-k and kindergarten students.
3. There should be plenty of storage space (200 sq. ft.) in every classroom. This storage space is in addition to the square footage indicated for each room or specialty area.
Speciaity Areas:
Playground. There should be a separate, enclosed, play area designed for small Children. It should have a soft surface on the grounds, sand box, wooden=; climbing and play apparatus, and flexible swings. ln addition, there should be a large grass play area for the larger children. There should exist a softball diamond, kickball field, several four square areas, hop scotch, and a basketball court. The latter items may exist on a hard surface.
MESERVEY ELEMENTARY SCHOOL
THEME: Arts
400 Students
Specialty Areas:
1. Auditorium. The building should have a 400 seat auditorium. The facility should be well lighted, particularly in-the stage area. There should exist a good Sound system', stage current, good seating, and the facility should be comfortable.
2. Dance Studio. There should exist a dance studio (1,200 sq. ft.) with a special floor, mirrors, and bars.
3. Music Room. There should exist a room for both vocal and instrumental music. The room should be 1,200 sq. ft., acoustically treated and have built-in risers There should also exist large locked storage areas. The room should be secure and alarm
protected. There, also, should be two practice rooms, witttn the
classroom, that are acoustically treated.
4. Visual Arts Room. There should exist a visdatarots room. A
standard size classroom will suffice.
5. Art Room. An art room (1,200 sq. ft.) should exist In the building. This room should accommodate thirteen (13) art tables. There should be four sinks, in two different locations, within the room. The room should be well lighted and have approximately 200 sq. ft. of storage space.
PAGE-24- KANSAS CITY MISSOURI SCHOOL DISTRICT

6. There will be a total of 1200 sq. ft. the various rooms and specialty areas.
PHILLIPS ELEMENTARY SCHOOL

of storage spread among

THEME: Arts
325 Students
Specialty Areas:
1. Auditorium. The building should have a 400 seat auditorium. The facility should be welr,lighted, particularly in the stage area. There should exist a goodsouhd system, stage current, good seating, and the facility should be comfortable.
Dance Studio. There should exist a dance studio (1,200 sq. - ft.) with a good wooden floor, mirrors, and bars.
3. Music Room. There should exiat a room for both vocal and
instrumental . music. The room should be 1,200 sq. ft., acousti-
cally treated and have built-inTisers. There should also exist large locked storage a'r'eas. The room should be secure and alarm protected. There, also, should be two practice rooms, within the classroom, that are acoustically treated:"
4. Visual Arts Room. There should exic.t a visual arts room. A standard size classroom will suffice.
5. Art Room. An art room (1,200 sq. ft.) should exist in the building. This room should accommodate thirteen (13) art tables. There should be four sinks, in two different locations, within the room. The room should be well lighted and have approximately 200 sq. ft. of storage space.

6. There will be a total of 1200 sq. ft. of storage spread among the various rooms and specialty areas.

LONGFELLOW ELEMENTARY SCHOOL THEME: Arts

300 Students

Specialty Areas:

1. Auditorium. The building should have a 400 s eat auditorium. The

facility should be well lighted, particularlyln the Stage area.

There should exist a good sound system, stage curren t , good seat-

ing, and the facility should be comfortable.

"

PAGE-25- KANSAS CITY MISSOURI SCHOOL DISTRICT

2. Dance Studio. There should exist a dance studio (1,200 sq. ft.) with a good wooden floor, mirrors, and bars.
3. Music Room. There should exist a room for both vocal and instrumental music. The room should be 1,200 sq. ft., acoustically treated and have built-in risers. There should also exist large locked storage areas. The room should be secure and alarm protected. There, also, should be two practice rooms, within the classroom, that are acoustically treated.
4. Visual.. Arts.Room. There should exist a visual arts room. A
standard size classroom will suffice.
5. Art Room. An art room (1,200 sq. ft.) should exist in the building. ThIS room should accommodate thirteen (13) art tables.
There should be four sinks, in two different locations, within the
room. The room should be well lighted and have approximately 200 sq. ft. of storage space.

6. There wIll be a total of 1'200.

ft. of storage spread among

the various rooms and specialt?ltreas.

N. ROCK CREEK/KORTE THEME: EnvIromental Science 550 Students Classroom Areas: There should be a (1) large classroom (1,200 sq. ft.) for the resource teacher who is not associated with a specialty lab. Specialty Areas:

1. Log Cabin. A log cabin should be constructed on the grounds as an outdoor education center. The building shouldpe usable year around, therefore, it should be heated, lighted, and have toilets and other water facilities. It should have sufficlent, size room to accommodate twenty-six (26) people.
2. Amphitheater. There should be constructed an amphitheater which will accommodate one hundred and four (104) students. This facility should have electrical power for lighting and portable systems. There should also be storage space on site.
3. Botany/Biology lab. There should be a botchy lab on t e grounds.
4. Greenhouse. A greenhouse, similar to the one at Center High

PAGE-26- KANSAS CITY MISSOURI SCHOOL DISTRICT

School, should be constructed on the site. 6. Environment Resource Room. There should be an environmental resource room In each building. A regular classroom will suffice.
KNOTTS ELEMENTARY SCHOOL THEME: Environmental Science
500 Students
Classroom Areas: There should be a (1) large Classroom (1,200 sq. ft.) for the resource teacher who Is not associated with a specialty lab. Specialty Areas:
1. Log Cabin. A log cabin should be constructed on the grounds as an outdoor education center. The building should be usable year around, therefore, it should be heated, lighted, and have toilets, and other water facilities. It should_have sufficient size room to accommodate twenty !-Six (26) people. 2. Amphitheater. There should be constructed an amphitheater which will accommodate one hund r ed and four (104) students. This facility should have electrical. power for lighting and portable systems. There should also be storage sl5a66on site.
3. Botany/Biology lab. There should be a botany lab on' the grounds. 4. Greenhouse. A greenhouse, similar to the one at Center High School, should be constructed on the site. 6. Environment Resource Room. There should be an environmental resource room in each building. A regular classroom w141suffice.
PAGE-27- KANSAS CITY MISSOURI SCHOOL DISTRICT

 
 THE SCHOOL DISTRICT OF KANSAS CITY, MISSOURI

1211 McGEE STREET
• Phone: 816 / 221-7565

KANSAS CITY, MISSOURI 64106

Superintendent ROBERT FL WHEELER

January 23, 1978

Board of Directors
SAMUEL J. CARPENTER. President JOHN AL RODRIGUEZ. Vice President MAURICE E. DWYER, Treasurer ANNE B. BLOND JAMES P. BONAOONNA FLETCHER DANIELS KAREN J. LEWIS EDWARD W. SCAGGS JOYCE STARK
GLEN L. HANKS, Secretary

The Honorable Joseph Califano, Jr. ■ Secretary, United States Department of
Health, Education and Welfare 330 Independence Avenue, S. W. Washington, D. C. 20201
Re: Application for ESAA Waiver by the School District of Kansas City, Missouri
Dear Secretary Califano:
The enclosed Application for Waiver of Ineligibility is hereby submitted on behalf of the School District of Kansas City, Missouri for your consideration pursuant to the Consent Order entered by the Honorable William H. Becker, Senior Judge of the United States District Court for the Western District of Missouri in Case No. 77-0238-CV-W-B, The School District of Kansas City , Missouri v. The United States Department of Health, Education, and Welfare, et al., which provides that:
"The Secretary of the Department of Health, Education and Welfare shall consider any application for a waiver of ineligibility submitted by the plaintiff pursuant to 20 U.S.C. §1605(d) (1) as if the application had been timely submitted prior to the end of Fiscal Year 1977."
The order further provides that the application shall be ruled upon within twenty days of its receipt.
A copy of the Integration Program itself, containing complete data regarding assignments, has been sent to the Office for Civil Rights pursuant to instructions from Dr. Herman Goldberg.
If additional information is needed in order to evaluate the waiver application, please notify us and we will see that it is made available.
Thank you for your consideration of this matter.
Si cerel ,

cc: Mr. David Tatel

Robert R. Wheeler Superintendent of Schools
CLERK U.S. DISTRICT COtTRT b

AN EQUAL OPPORTUNITY EMPLOYER M/F

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

Application for Waiver of Ineligibility for
Emergenc y School Aid Act Funds
The School District of Kansas City, Missouri applied for two grants of Emergency School Aid Act funds during fiscal 1977. The District was notified by Herman R. Goldberg, Associate Commissioner for Equal Educational Opportunity Programs, by letter dated August 12, 1977, that it failed to meet the ESAA eligibility requirements on the basis of a December 22, 1976 Administrative Law Judge's initial decision "that your district had failed to dismantle its former dual school system in 1955 and had not done so at any time thereafter," and that "since 1955 the district had taken actions which intentionally maintained or increased segregation of students throughout the district."
Dr. Goldberg's letter concluded that:
"These findings of noncompliance with Title VI place the district in violation of section 185.43(d) of the ESAA regulations and ineligible for the funding sought in its pending application."
The applications were therefore denied, and the District was advised of its right to seek a "waiver" of ineligibility, pursuant to ESAA Regulations.
Section 185.44(f) of the ESAA Re g ulations provides that:
"In the case of ineligibility under 5185.43(d), an application for waiver shall contain evidence that the practice, policy, or procedure p rohibited by 5185.43(d) has ceased to exist or occur and that the effects of ..such practices, policy, or p rocedure have been remedied or eliminated."
The Administrative Law Judge, Rollie D. Thedford, in his findings of fact, acknowledged that the polic y , practice and procedure of assigning students to schools on the basis of race was discontinued b y School Board action in March of 1955. (Finding No. 11, p. 67, Decision of Administrative Law Judge Rollie D. Thedford, Docket No. S-92).
Judge Thedford further ruled, however, that the change to a single set of neighborhood attendance zones in 1955 failed to eliminate all remnants of the past dual system, and that, since 1955, "The administration of the District's neighborhood school policy maintained and created segregation by reason of optional zones, liberal transfer policies, gerrymandering of attendance zones, irregular feeder patterns, and transportation policies." (Finding No. 11, p. 67, Decision of the ALJ).
•

In regard to the de g ree to which segregation existing

in the Kansas City Schools at the time of the hearing was an

et.

effect of the practices, policies, or procedures found to

have been discriminatory and therefore in need of being

remedied pursuant to 5185.44(f), Judge Thedford commented

that the constitutional violation of the District was limited

to "that degree of segregation which would have developed in

the absence of other extrinsic causes, such as housing,

lending policies, block busting, etc. . ." (ALJ Decision

Page 64.) Judge Thedford, anticipating the subsequent Supreme

Court ruling in Dayton Board of •Education v. Brinkman, 45 LW

4910 (1977), which requires an ex p licit finding identifying

the specific existing segregation which was caused by actions

found to have been intentionally discriminatory, implicitly

ruled that the degree to which more than 50% of the minority

students in the District were enrolled in schools which were

more than 80% minority in 1974-75 re p resented the remaining

"effects" which required remedy. (Judge Thedford, at page

64 of the Decision, commented: "We believe that our deter-

mination of the adequacy of desegregation of the District is

consistent with the findings of the Austin case," obviously

reading Austin to establish the rule which later was estab-

lished by Dayton.)

The "adequacy of desegregation" determination to which Judge Thedford refers is found at page 76 of the opinion, wherein he holds:

"Assignment of at least fifty percent of the minority students to schools in which the minority enrollment is eighty percent or less . . . constitutes adequate desegration."

Reading these two comments together, it is clear that while Judge Thedford believed the District guilty of past intentional acts of segregation, he also recognized that other factors, beyond the control of the district, were contri• buting factors and that the "constitutional violation" related to only a portion of the existing segregation.

Although the District believes the allegations of OCR regarding intentional segregatory acts by the District subsequent to 1955 are unwarranted, believes that all effects of the pre-1955 dual system were eliminated long a g o, and appealed Judge Thedford's decision to the HEW Civil Rights Reviewing Authority a year ago (no decision has as yet been rendered), the District has nonetheless taken voluntary action to improve racial balance in the schools. Even assuming Judge Thedford's decision to have been correct, and the District denies that it was, actions have been taken or commitments herein made which rescind all policies, practices or procedures alleged to be discriminatory and which adequately correct what Judge Thedford found to be the effects of the constitutional violation.

2

. Included as an Ap p endix to this Re quest for Waiver and incorporated herein is the enclosed School Integration Program for the School District of Kansas Cit y , Missouri, adopted by the District on March 20, 1977, and implemented in the fall of 1977.
As study of the plan will indicate, the alleged segregatory o p tional zones, transfer policies, gerrymandering of attendance zones, irregular feeder patterns and transportation policies have been eliminated.
Optional Zones
The optional zones referred to by Judge Thedford have all been eliminated. The plan implemented contains two zones in which an o p tion is available, but in each case the possible assignment offered as an option to the residential zone assignment is an integrative option. Each optional area is an all-minority residential area in which students are geographically close to a predominatel y minority school, but are offered an option to attend a more distant, better integrated school.
Transfer Policy
The district has adopted and implemented a stringent transfer policy which prohibits transfers having a negative effect on integration except in specified extreme cases when an exception may be granted. The policy encourages majority to minority transfers, providing free transportation for these voluntary transfers. The policy is administered by a racially balanced board of School District administrators. Records are available for review.
Gerrymandering of Attendance Zones
• -
Attendance zones in the plan have been drawn on the basis of distance and building capacity, with adjustments to improve integration where possible. In no case has a boundary line been drawn in a manner which would cause a student to attend a more distant school when attendance at a school closer to his place of residence would create increased integration. In the limited number of cases in which a student is assigned to a school other than the one closest to his home, the assignment improves integration.
Irregular Feeder Patterns
Pursuant to the plan adopted and now in effect, irregular feeder patterns are no longer utilized in the District. Seventh grades have been removed from all elementary schools, and no elementary or junior high attendance areas are bisected by secondary school attendance areas.

Transportation Policies
As stud y of the plan will indicate, none of the District's trans p ortation is segregative in effect; transportation is utilized to accomplish increased integration.
Elimination of Effects of Past. Alleged Discriminatory Actions
As indicated by the above sections, the District has, through past actions and through adoption of the plan outlined in the Appendix, discontinued the policies, practices and procedures found to have caused segregated schools.
Judge Thedford's determination that effects of the past allegedly discriminatory actions remained was made on the basis of statistical evidence relatin g to the 1974-75 school year. At that time, according to Judge Thedford's findings, the minority enrollment was 62.2%, and 80% of the minority students were enrolled in schools which were 90% or more minority.
At the p resent time, after implementation of the Integration Program, the District has a 68.6% minority enrollment. In spite of the 6.4% increase, 44% of the minority students are now enrolled in schools less than 80% minority -- 47% at the high school level, 48% at the junior high level, and 39% at the elementary level (kindergarten and s p ecial education students were not included in Pairing and clustering, decreasing the statistical results at the elementary level.) These results were achieved in the following manner:
Senior High
Im p roved integration at the senior high level was accomplished through one school closing, boundary changes, changes in feeder patterns, and voluntary transfers with free transportation.
Of the ten senior high schools and one magnet secondary school in the District, five are now within 20% of the District minority enrollment of 68.6% -- one is 55%, one 49.6%, one 79.3%, one 75%, and one 74%. Two other schools have increased their minority percentage by 20% or more -one from 23% to 44.4% minority, and one from 4% to 29.9% minority.
Prior to implementation of the plan, one high school was 98% minority and four were 99% minority. One of the 99% minorit y schools, Manual, was closed and approximately 1,165 students-assigned elsewhere on the basis of geographic assignment zones. The school had been a "temporary" arran g ement since 1969 when the former Manual building was replaced by a District-wide magnet school, the Kansas City Vocational Technical Center. Reassignment under the 1977 plan allowed students to enroll in buildings closer to their homes, in most cases to better integrated schools.
4

Approximately 25% of the students at Central High School were zoned into other schools or reassigned because of feeder pattern changes. Central remains 99% minority, but now enrolls 425 fewer students.
Lincoln, another 99% minority school, was also rezoned somewhat and now serves 172 fewer students. Plan projections had anticipated a 20% reduction in Lincoln enrollment, a decrease of 247 students, but enrollment exceeded expectations.
Southeast, a 98% minority school, was projected to lose approximately 25% of its enrollment (592 students) through rezoning and school feeder pattern changes. However, actual enrollment was onl y 327 fewer students than last year, an a p proximately 15% reduction in enrollment.
Paseo, a 99% minority school, is the only one of the five high schools to remain substantially unchanged in 197778, enrolling 1,560 students as compared to 1,565 in 197677, and remaining 99% minority.
Two high schools whose enrollments were near the Districtwide percentages prior to imp lementation, West and Westport, are now 79% and 75% minority, remaining close to the present high school 71.1% minority percentage.
The existing ma g net school, the Kansas City VocationalTechnical Center, has a 74% minority enrollment as compared to 73% last year.
Under the p resent stage of im p lementation, a pp roximately 47% of the minority secondary students in the District attend schools which are less than 80% minority.
Junior High Schools
At the junior high level, improved integration was achieved through boundary changes, changes in elementary school feeder patterns, establishment of four additional junior high schools, and voluntary transfers with free transportation. The District now has eiaht junior high schools in the 30% to 80% minority range; four remain more than 80% minority.
In 1976-77, only 20% of the junior hi g h minorit y students were enrolled in schools which were less than 80% minority. Under the new plan, in spite of an increase in minority percentage from 63.2% to 66%, 48% of the minority junior high students are now enrolled in schools which are less than 80% minority.
5

Elementary Schools
Increased integration at the elementary school level has been achieved through boundary changes, voluntary transfers with free transportation, school closings, and pairing and clustering of schools. Although minority enrollment at the elementary level has increased from 64.7% in 1976-77 to 68% in 1977-78, the number of minority children attending racially isolated schools has been significantly reduced. In 197677, 19% of the minority elementary students were in schools less than 80% minority. After implementation of the plan, 39% of the minority students in.the District are enrolled in schools which are less than 80% minority.
Commitments for Additional Integration
As a part of the waiver a pplication, the District affirms that if ESAA funds are granted, it will proceed with plans for establishing magnet schools as a means of building upon and increasing the integration accomplished through the plan already implemented.
The one District-wide magnet school presently in operation has been a successfully integrated school for more than five years. The District has reason to believe that Kansas City offers a good o p portunity to succeed with other magnet school forms, and has committed itself to their establishment if ESAA funds are made available. The District believes that in order to successfully operate magnet schools, time and funds must be allowed for research and planning. Once this is done, an estimate of the probable degree of increased integration can be given to HEW and the District can proceed in its attempts to achieve the goal. The District would like to establish such a center at Lincoln High School in order to eliminate the nearly all-minority status of the one high school which was a black school in the dual school system, as well as at other locations deemed feasible after research.
The District is also willing to expand the program of voluntary transfers to improve integration. Since the 197576 school year, students have been allowed to transfer from a school in which their race was in the majority to one in which they would be in the racial minority, with free transportation provided by the District. The program has been a significant factor in improving integration. Increased funding could allow expansion of the p rogram through activities to acquaint students and parents with other schools and to encourage such voluntary transfers.
The District is of the opinion, reinforced by education and desegregation consultants, that the steps already taken and the additional steps proposed constitute the best possible plan for achieving the maximum degree of stable, educationally sound integration in this inner city district. The District is presently plaintiff in a federal court
6

action through which it seeks to accomplish integration of Kansas City area schools on a metropolitan basis, the only feasible means of actually eliminating the racial isolation which exists in the Kansas City District as a whole. Until or unless this can be accom p lished, the District believes that it has an absolute obligation to avoid actions which it believes would have a negative effect on the progress it is attempting to accomplish in the areas of improved inte g ration and improved education. The attitude it holds in this regard has been strongly reinfoz-ced by the Report of the National Conference on School Desegregation in Metropolitan Areas sponsored by HEW in March of 1977. Kansas City has experienced most of the problems of inner city schools discussed at that conference. It is a central city, predominately minority district with a declining enrollment and declining tax base, surrounded by suburban districts with fewer problems and greater resources. Geograph y and p atterns of governmental boundaries make escape from the central city school district extremely easy in the Kansas City area. The percentage of middle class black and white students is decreasing, and the percentage of disadvantaged students needing special help is increasing.
The ever increasing percentage of minority enrollment in the Kansas City District, regardless of cause, is a factor which the District is compelled to consider in any integration plan. An all-minority district is desegregated only in theory. A successful program of integration can be achieved only if this as well as all other factors peculiar to this District are considered. The District has attempted to obtain a delicate balance, based upon studies of enrollment patterns in its own schools and its best perception of the practicalities of the situation, between achievement of maximum integration and preserving the stability of its present racial percentages. The changes which have been implemented cannot objectively be viewed as "minimal." The changes have been extensive, affecting the entire district and requiring major adjustments. A significant percentage of enrollment was lost with implementation of this plan, but, because of the careful planning, the enrollment retained was near plan projections.
It has been suggested that at least one of the remaining 98-99% minority high schools be "integrated" by reassi g nment of at least 10% non-minority students to a selected school. Examination of the statistics indicates the practical difficulties of such an exercise. The District presently enrolls only 4,036 non-minority high school students, a drop of 1,036 (20%) from the 1976-77 school year. Of this number 1-,168 are enrolled at Van Horn High School, a school which is located in the City of Independence, separated from other high schools in the District by geography and by an industrial area. Van Horn enrollment jumped from 4% to 29.9% minority under the plan implemented this year, with a decrease in the projected non-minority enrollment of a p proximately 150 students. Opportunities for further integration
7

involving that area of the District are extremely limited. Of the remaining non-minorit y high school students, 2,050 are enrolled in schools which are 50% or more minority, and the final 818 are enrolled at Northeast High School, which is 44.4% minority. Reassignment of non-minority students from these schools in numbers sufficient to accomplish meaningful integration in any additional school would, in the opinion of the District, its consultants, and many experts in the area of desegregation, raise the minority percentage at the remaining schools to a level which would create a substantial risk of destroying the degree of integration which has presently been achieved.
With the affirmative steps which have now been taken, the schools of the Kansas Cit y District are clearly better integrated, considering the housing patterns in this and most urban areas, than they would have been in the absence of the pre-1955 dual system and the alleged subsequent discriminatory actions of the District. The "policies, procedures and practices" complained of are no longer in effect, and the "effects" have been corrected. On this basis, a waiver of the finding of ineligibility is requested.

`•r"

if. •

J;;i1 2 l';;;:3

OFFICZ

8

 
 ►aOGRESS OF DESEGREGATION BY SCHOOLS
1955-56 Through 1965-66

Central High

East High

Year

White Negro Total

White Negro Total

1955-56
1956-57 1957•58 195g-59
1959•60 .1960-61
1961-62
1952-63
1063-64 1964•65
1/506665--e676
t

1,553
1,476
1,317
1,078
439
149
54 21
20
11 16
.9 73.

195
303
519
795
1,178
1,373
1,891
2,1 1 7
2,252
2,507
2,632
;2, 4-7%,
2

Manurl

1,743
1,779
1,836 1,873
1,667
1,522
1,945
2,138
2,272
2,518 2,648 ;. J-e-7.- 7
A

1,555

81 1,636

1,587 100 1,637

1,663 103 1,766

1,601 112 1,713

1,764 109 1,873

1,826

99 1,925

1,846 127 1,973

1,789 144 1,933

1,746 211 1,957

1,710 255 1,965

1,594
I3 15 . 1 6

258 1,852

277-

g i (

?c,5" /,53 5 I fc

.01_7 ;:i/.

NOr'thoast

Year

White Negro Total

White Negro Total

1955-56
1956-57
1957-58
1953-59 1959-60
1950-61
'951-62
1962-63
L963-64
1064-65
1965-66
vitt-0
17-•(
c51.6,17-7c)
rear

716 700 1,416

391 988 1,379
134 1,016 1,150

121 865 986

83 785 868

37 862 949
145 810 955

170 728 898
101 1,130 1,231 54 1,101 1,155 101 1,220 1,321 27 1,/5::›

/)2

1,i52

Southe,st •

lCi, (1L/4 5-

High

L

\(
"\IVIIie Negro Total

1,398

2 1,400

1,376

1 1,377

1,705

1,705

1,744

- 1,744

1,703

1,703

1,903

1 1,904

1,933

1 1,089

1,854

2 1,853

1,953

2 1,055

1,953

3 1,956

1,802

7 1,809

)L. ,, 5:-59

tr7“

r, 7,S

=Ws t

White Negro Total

.955-56 .956-57 .957-58 .956-59 959-60 960•61 961•62 962-63 963-54 964-65 965-66 “L-(7
.:7-66' C; C: - I., (I
t, 7-7o
?A

1,737 1,800 1,899 1,875 1,871 1,351 1,731 1,559 1,619 1,540 1,386
/. 3:R ( /, / Z
r..;0
57,

-
1 9 25
32 46
07 147 230 395
.. 44.) ..5P
.7(2c'
53)-

1,737 1,800
1,900 1,884
1,896
1,883 1,777
1,656 1,766 1,770 1,7P.1
/, 7c,"/ /. 7,7.4!
1 .(-.:7 (2
imo?,

- - ----i -7-

:Jr- (.1-(-S'

1 ),,t,. i

.7: ..: - .:-,--
),./_....., ..

..(

„,-
_!.,

,

i

7_

,,

c'. ! -.,,,
:--t. I

2,041 2,073 2,123 2,141 1,923 1,771 1,941 2,035 2,242 2,373 2,451
-Z, 11/-;#
1/1
'h;

1 2,042

1 2,074

- 2,123

- 2,141

- 1,923

1 1,772

1,941

2,035

5 2,247

13 2,391

18 2,469

13 :4 4(6c"

7

;3,*36,

2,40 d-

I 9_ 2,,/3-5

-5.

Lincoln Nigh

White Negro To-::al

2 736 738

1 742 743

945 945

954 934

973 973

027 027

893 898

- 1,002 1,002

2 1,107 1,109

1 1,074 1,075

1 1,120 1,121

f,
(s

S.S44

7

f.'",

PaseO Ili n

White Negro Total

1,638

27 1,665

1,668

41 1,709

1,711

45 1,756

1,642

68 1,710

1,736 123 1,859

1,709 184 1,893

1,582 306 1,888

1,340 406 1,746

1,036 593 1,629

820 828 1,543

601 996 1,597

493

1, L.CS

Va(In1t,2,iogVoJ=/31r „c1

2.0
-,‘? (s34.4

White Negro Total

1,095 1,218 1,239 1,336 1,442
1,723 1,847 1,634 1,788 1,980 1,941 /,?9.2
Z02 2
n i '711 /*9-)

1,095 1,218 1,289 1,336 1,442 1,723 1,847 1,834 1,783 1,980 2 1,946

- -.7, Ca 2-

1

47

5- r,

ear
955-56 956-57 957-58 958-59 959-GO 960-61 961-62 962-63 'G3-64 D64-65 D65-66
'7'66-67 ;69- 6s,''
:ar
)55-56 )56-57 )57-58
159.60 160-61 161-62 ;62-63 163-64 '64-65 65-66 c6-67 r7 G4'
• 9- 7c,
ar
55-56 56-57 57-58 58-59 59-GO SO-61 31-62 32-63 33-64 A-65 35-66
--t-S)
/-5-

Westport High

Bingham Junior

Central Junior

White Negro Total

White Negro Total

White Negro Total

1,508 1,734 1,582 1,604 1,667 1,642 1,758 1,724 1,700 1,799 1,639

35 1,343 46 1,780 40 1,622 39 1,643 46 1,713 42 1,684 54 1,812 67 1,791 106 1,806 168 1,967 203 1,862

r, 37'/ Sc

q‘r-o

5

,

/-

Coles Jr. - Lincoln Jr,

I' AC

White Negro Total

New School

724

724

1,003

1 1,004

1,062

1 1,063

988

1 989

979

2 931

989

6 995

957

12 969

I, 053>
(73

5

c

c-k I, 0 -71,

I e,S,"

L.,„

`Sortheast Junior

White Negro Total

1,164 469 1,633

844 608 1,452

606 835 1,141

378 996 1,374

176 1,073 1,254

59 1,381 1,4,10

33 1,511 1,544

23 1,689 1,712

12 1,565

12 1,621 1:6T:

8 1,630 1,638

y-

I.

x

V-C:3

NoWlin Junior

/.2cje=

White Negro Total

4 894 898*

1,474

1,474

3 935 938

1,616

1 1,617

3 848 851

1,510

3 1,513

844 844

1,516

4 1,520

3 899 902

1,595

2 1,597

910 910

1,681

1,681

1 893 894

1,765

1,765

New School

2 904 906

1,632

3 1,635

1,116

1 961 962

1,627

5 1,632

1,425

968 968

1,661

3 1,664

1,427

1 1,011 1,012_

1,725

4 1,729

1,445

e,

e
r, c,- +1

l;

i SSG

Coles Jr. Closed at end of 1955-56 school year.

4-3

Lincoln Junior, a new building, opened in Sept., 1956.

10tCP 1,1,

IL,r--2

i ,; I

i-77.116

(4.-

x,023 /, 0.23

/G-5"/

02.5 a7C

\143.2.-

N.,

1

Pitcher-Fairview Jr.

Southeast Junior

West Junior

1,116 1,425 1,427 1,445
,4-..5-c(
-r•
1,55 A 49 2--

White Negro Total

White Negro Total

White Negro Total

Annexed 337 367 380 427
Closed

337 367

380

427

New School

840

90 930

789 180 969 767 223 990

693 290 983

Li/

3_2/

931_

1-1, 7 258

5(1 7L>t/

scK,
'173

572 519 590 570 545 603 539 530 442
405
400
27c, 666
3-3

89 114
87 94 84 85 73 71 83
90
82
76
tg7
/43

661 633 677 664 629 688 612 601 525
495
482
'is 4" (a
(“:!;1._
q 7 co

Allen

Attucl:s

Blenheim

Ir

White Negro Total

White Negro Total

White Negro Total

i5-56 i6-57 i7-58 i8-59 i9-60 i0-61 a-62 ;2-63 ;3-64 ;4-65 ,5-66 6
er
3 =-9

219

65

180

64

220

72

211

82

160

67

157

61

144

63

112

58

122

60

01

65

123

86

Ashland \.

284 244 202 293 227 218 207 170 182 166 209
_qc?
;/2.

White Negro Total

522

401

343

1 324

270

261

1 410

374

394

443

6 730

1

(.25

-=;1 56:3 Bancroft

522 401 343 325 270 261 411 374 394 443 736* 6.7,7;f,
e, v-

White Negro Total

678

- 678

635

- 635

645

- 645

659

- 659

622

- 622

561

- 561

530

- 530

450

- 450

449

- 449

418

- 418

420
D 'ifl 37c 3:7,5:
Borcicr.

111
I.; -2... /77
t&ts'
Star

531* .,--q. 7,—
SG x 513 x

•—

White Negro Total

5-56 6-57 7-58 8-59 C•60 0-61 1-6S 2-63 3-64 4-65 5-66
6-cq
4"61
r

843

29

789

85

735 111

755 129

732 202

675 179

698 190

745 21.i3

671 235

661 216

675 207

(--) I z44

Askew
'V
White Negro

872 874 846 884 934 854 885• 948 906 877 882
Sg
'75
Total

617

603

616

680

1

667

640

8

664

35

674

69

600 109

613 180

558 223

50 /

367

3(41

Banneker,

617 603 616 681 667 648 699 743 709 793 781
g-“ J3 Sic

White Negro Total

802

-

819

-

852

-

870

-

817

-

775

-

764

-

750

-

759

-

750

-

744

32

6U

n6

,97

32_

-B.“r0istol 54_-

\t,'-,;)

802 819 852 870 817 775 76(i 750 759 750 776 *
Gee / r6,27 .,.;
53

White Negro Total

5-56 6-57 7-58 8-59 9-60 0-61 1-62 2-63 3-64 4-65 5-66
c- C7 7-6 *
,

660

- 660

22 406 428

879

633

- 633

8 401 409

855

661

- 661

11 411 422

882

682

- 682

22 429 451

883

684

- 684

11 425 436

840

699

699

16 445 461

811

699

- 699

19 416 435

825

732

- 732

12 421 433

721

762

- 762

11 384 395

734

757

757

2 351 353

730

769

- 769

2 365 367

697

720

-

720

2

32S-

37

7 / ,7_

Childr1e'3n7 • 7c. j

-

7-0

being_

transported 10.)

in

3 from
-

/=17
other
-'-1

9

7,,, 6

school districts

'7_-

7,;.2 gr.

- S79

- 855

- 882

- 883

- 840

- 811

- 825

- 721

- 734

1 731

4 698

I

7(73

i

'bo?

,

A.

7 z6

Bryant -

Chick C;.-;.,

DeLano

White Negro Total

White Negro Total.

White Negro Total

55-56 56-57 57-58 58-59 59-60 50-61 61-62 62-63 03-64 64-05 65-66 ;,G -67
--6t
i ..( 1
ar
53-56 56-57 57-53 53-5CJ 59-00 60-31 67-62
02-63 63-64 '64-65 '65-66 1,,s. -6-)
G.:7- 6C - t 1-
!ar

567

-

558

-

638

622

-

609

-

606

-

621

2

652

1

647

1

632

680

-

,-77

-

Li 3
t, :'4' c_7;

-
,2c.

Carll5le

567 553
638 622 609
606 G23 653 648 632 680 f77.7
1, )1 C.. 1 (-.5

White Negro Total

286

-

233

-

259

307

-

229

-

303

286

-

327

-

352

-

383

-

404

-

ci6

--

-

.079

_

C arver

\I
White Negro

286 283 259 307 229 303
286
327 352 383
404 31E,
390
d)?
Total

423 410 438 435 435 437 389 308 284 235 243
2_23
;2-2 /
I (- C. Clay

-
-
16
31 53
75 134 172 229
255
33 ,(3S/ :.9 ..< I
L-c \

423 410
438 451 466 490
464 442 456 '64 493 ,56,_ -__c 1z
5 - V 7

White Negro Total

460

- 460

446

- 446

418

- 418

432

- 432

441

- 441

414

414

399

- 399

390

- 390

376

- 376

379
392
1,e<J2_ 3C1oi-s7o--k-

-
1-/-51_8
Vs'. '

379
392 ii 4-74-
4-t /.5 43.k,,,-

White Negro Total

112

7

138

9

127

11

118

16

112

14

104

24

107

25

92

26

95

28

81

30

78

30

Co

.34

D4o6,uf,,g-,-_?._a_s__s33,i7- '

119 147 138 134 126 128 132 118 123 111 108 96
(0 G fe..,, /

White Negro Total

1 235 236

3 234 237

315 196 511 -,,`,'

318 168 4t7

279 145 424

293 138 431

246 120 366 226 124 350

221 127 318

309

95 401

,22C78,, 11.7.z87 zslA.65 *

1 g 3.

lo..

1.:._,->-1

ics--

Dbar

-grs- r
!ze, 2_ .t<

White Negro Total

155-56 156-57 157-58 158•59 159-60 160-61 )61- . 62 362-63 )63-64 )64-65 )65-66
I4C,,C7,6-6i;I
**

3 483 486

753

- 753

-

3 530 533

742

- 742

6 459 465

720

- 720

-

2 426 428

710

- 710

-

6 401 407

594

- 594

-

3 356 359

560

560

-

1 318 319

527

- 527

-

4 267 271

536

- 536

-

3 243 246

545 - - 545

-

6 376 382

522

- 522

-

4 331 335

546

94 640 *

-

L

,f'LS

514—*

Chi 3.dren being transported

in

f•ir-'o/ m'lother`7f 4-7,..schd'bL, if2ai.,d-1i.4.-,s- tricts

-

New Douglass School. Old building closed.

265 253 233 247 212 211 209
203 209
198
257 2S6
-.z / i
i5.2

265 253 233 247 212 211 209 203 209 198 257
2-56 .7/7 .y.,_ i.s- 2

'ear
955-56 956-57 957-58 958-59 959-60 960-61 961-62 962-63 963-64 964-65 965-66 Y(.6-67
- 1- e
ear
955-56 956-57 )57-58 D5S-59 )5-60 )60-01. )61•52
;63-64 :64-65 ;65-66 cc6-67
'ar
155-56 156-57 157-53 158-59 159-60 60-61 '61-62 62-63 G3-64 64-65 65-66 cc. -67 ‘7-6‘
F.
-11

Fairmount

White Negro Total

534

534

552

552

574

574

579

579

531

531

552

552

540

540

528

528

524

- 524

506

506

475

475

q?c)

1 11- 1

7(

31-r7 View

White Negro Total

Annexed in 1958

109

109

Closed

Re-opened 62-63

311

311

333

333

331

331

354
546 3.3.5

354
si,16

Faxon 1_

3'4

White Negro Total

551 554 578 593 581 630 532 482 417 396 340 :3C-I ,25 4,
r i..,

4 3 2 3 37 62 189 263 354 402 409 •/-61, 57-=, ...'50S

555 557 580 596 618 712 721 745 771 798 749 77 3 L5o)x.). -K

4c-d12,c--c)

-"•Frankl.j.n ;

White Negro Total.

533

8 546

522

2 524

541

1 542

498

493

506

506

478

3 481

432

5 437

408

1 409

365

1 366

298

4 302

224

1 225

.q 3

7G-s-a2. y hef ld 1;

e)

White Negro Total

702

702

701

2 703

657

2 659

700

3 703

723

3 726

651

651

683

683

720

2 722

754

2 756

687

4 691

631

6 637

C‘)S

/2 Gar rison .

White Negro Total

306

19 325

346

31 377

403

4 407

464

9 473

439

18 457

476

27 503

455

15 470

452

23 475

452

31 483

441

35 476

436

26 462

.3"3/

ivi 17c,

-21,4

-53 33

:Y37

11 0

44,1

Gladstone

White Negro Total

356

356

362

1 363

378

1 379

354

354

345

345

372

372

379

379

379

379

359

359

356

356

392

37 429 *

tf.33

33

Graceland \..
White Negro

i6.6
Total

252 103

272 125

273 150

285 195

305 182

291 223

256 255

203 316

151 448

94 557

73 627

4- 6 7G/

45

"748

a

Greenwood

360 397 423 4S0 487 514 513 519 599 651 700 74-7 193 7 -5

White Negro Total

171 661 832

50 319 869

32 889 921

22 996 1,018

6 895 901

9 997 1,006

4 935 939

8 954 9(32

9 944 953

1 932 983

2 926 923

3 Y ci7 c" cc

935

c-)cf

6 7i ,4 72 (..)

Harrison

Holmes

James Cc;

Year

White Negro Total

White Negro Total

White Negro Total

1955-56 1956-57 1957-58 1958-59 1959-60 1960•61 1961-62 1962-63 1963•64 1964-65 1965-66
0(4-1,7
69.
year

608

-

572

-

587

-

595

-

586

-

554

-

586

-

574

-

529

-

538

-

514

-

5,2 ,-,

—

55 9

3

.7
Hartman \

603 572 587 595 566 554. 585 574 529 538 514 •521
.5 l

White Negro Total

41 742 783 26 842 863 13 902 915
9 969 973 13 1,035 1,048 11 1,132 1,143 11. 1,150 1,161 8 1,058 1,066 2 1,109 1,111
1 1,053 1,054 1,143 1,143 i,c(0
Humboldt
White Negro Total

6 ,11

- 641

635

- 635

612

- 612

588

- 588

536

- 536

512

- 512

535

535

477 490 506

77-

(4545,07333 70867 :

498

70

..54,

-570 (:c):3

-*/;Y7

Karnes

-

ntiZ

VWhite Negro Tot.:1

4 1955-56 54 75 575 4 622 136 758

1956-57

629

- 629

492 190 682

1957-58

668

- 668

363 103 466

1953-59

680

- 680

329

70 399

11)59•60

630

- 630

235

30 9a

274

1960•61

600

- 600

209

50 259

1961-(

601

-1 601 78

56 234

196-6

557

557

291

46 337

1063-6

550

550

257

43 300

1964-65

523

- 526

218

40 258

1965-66 tv.6-47
- 7 .- e-,(11
E. A' -6 i

523

4i(i,2E3

S; 1

jV:7

Hilltop **

323
-) 7/ -6 s5 L,) 2-(..,
1-.3 `f- X

256

35

--Z7 5

.L.2 MI]-, -r‘-

,:6.).6.?)_166

_._3 _... Z1.._7___4'

Jackson County Home

0.4,..,5-1-z_6-Azt4; ) ",- ,!.,

Year

White Negro Total

White Negro Total

108

437 147

386

75

377

400

38

356

25

343

27

44

18

352

13

320

14

302

13

g

31(

Kensington

552 584 431 452 433 331 370
350 334 315
;257? / 7
5//
7::"‹

White Negro Total

1955-56

-

22

22

601

60

1956-57

42

42

629

66

1957-53

-

38

38

585

77

1958-59

-

45

45

627

60

1959-60

-

40

40

655

54

1960-61

-

30

30

610

47

1961•62

-

50

50

596

53

1962-63

-

37

37

576

71

1963-64

-

75

75

557

73

1964-65

7

3

10

-

61

61

573

73

1965-66 lace -c.7

14

12

26

j

2

-5

9

l4q3

:4) 3

575

79

E:c6

7o

* Children being transported in from other school districts

** Attendance information before 1964-65 not available

3 L>7• e. g/`I

L g.- 6 9 -

1

C

1Is-

2.0
!1

5 -
.2 6-.

Gil

t,s-

..,5F

:.,,f,

661 695 662 687 709 657 649 647 630 651. 654
416
.w., E'53

Wa' ington

Norman

Pinkerton

Year

Write Negro Total

White Negro Total

"White Negro Total

1955-56 1956-57 1957•58 1958-59 1959-GO 1960-61 1961-62 1962-63 1963-64 1961-65 1965-66
-6g
Year

522 540 541 528 524 496 514 486 515 452 4.55
4/ _-.) 7
:391,

- 522 - 540 - 541 - 528 - 524 - 496 - 514 - 486 - 515 - 452 - 455
17.27 -,C) I,

NeIson

White Negro Total

295

2

302

5

299

3

326

3

292

3

245

5

223

7

213

6

236

7

256

9

284

7

26

44

-;-). C

5?
/

Pershing V

297 307 302 329 295 250 230 219 243 265 201
..3.,7_,(
0,2( -,v_
-

White Negro Total

393

-

395

-

407

-

414

-

384

-

337

-

363

-

337

-

365

15

323

39

336

74

772

/2s

,5.

..i.,: 1),.. -2_

Pitcher

, t,!,

393 395 407 414 .,.),,,4, 337 363 331 380 362 410
:1-4
1-i 1 q....-

White Negro Totv.1

1955-56
1956-57 1957•53 1958-59 3:)50•GO 3960-61 196J.-62
1962-63
1963-64 1964-65
1965-66
MC,
Year

285

287

309

314

323

316

385

1

327

2

335

2

367

4

350

4

g

Nichols \

285 287 309 314 323 316 386 329 337 371 354
5.:;7e.\

White Negro Total

551

551

540

540

541

543

520

4

524

480

10

490

475

13

483

459

30

163

403

56 459

397

89

486

306

152

458

305

227

532

,;),7c

y

erL-7

Phillips')&/

L97

V

White Negro Total

Annexed 1958-59

84

852

852

85?

337

-tk

731

7;:i1

805

305

816

81 0

323 ;2• 3

823

7 S

7 .5-

7
Richardson

\\

c

White Negro Total

1955-56 1956-57 1957•58
1958-59 1959-60 1960-61
1961-62 1962-63 1963-64 1964-65 1965-66
V( t 6-62 '? -6 i./
.... 4'
t,..,•bcf
,--)

742

- 742

814 814

736

- 736

- 735 735

683

- 683

- 717 717

622

- 622

733 738

521

- 521

- 818 818

484

484

- 747 717

443

- 443

3 809 812

405

- 405

836 836

408

- 408

- 774 774

New Buildirg 1964-65

401

- 401

914 91 4

3 1,002 3,005

339 130 519 >

- 811 811

2 1,074 1,076

!',5

r I 3

ros—N

FIG

.?1(1,_,..,'

q c1

i 1 i

.51,_- Ys-

Children being transported

in

from

77'

77

other school districts

'I

.31---:

LK.?

q ,,..f -x-

____

4,3i

('3.5

7, z 155 ,-7 c, --

') 1 7 .x."---
:--- -,;,-K
7 c 3

\\J

Rock Creek, North

Ruhl

Spofford Home:;..

Year

White Negro Total

White Negro Total

White Negro Total

1955-56 1956-57 1957-53 1958-59 1959•60 1960-61 1.961-62 1062-63 1963-64 1964-65 1065-66

Annexed 686 712 745 839 852 768 799 707 790 7 Yi

1957-58

-

G86

-

712

-

745

-

839

-

352

-

768

799

797

-

790

777

7e),Y

-

V. .-F3

neck Creek, West

425

433

462

479

400

1

377

371

329

303

269

2

250

66

,26/

c,4_,

Scarritt

425 433 462 479 401 377 371 329 303 271 316
7 J2.

17

17

14

14

15

17

-

17

13

18

17

17

25

25

20

20

17

-

17

10

10

No Information

ij
Stark

Year

White ,egro Total.

White Negro Total

WhiteNegro Total

1955-56 1956-57 1057-58 105-59
0 1960-61 1961-67 lf-%62-63 1963-64 1964-65 1965-66 04.6-G7
(,"? -6
ct

Annexed 1D57•58

335

-

335

359 :337 37 3 ,.:3

359

-

287

-

375

-

343

301

201

303

303

313

-

313

310

-

A.??

1 .-ro

_

2-9.2-

_._

Rollins

33.0
:-Z7 .2-1Q ,:4,a.

645

G3G

595

695

4

657

4

627

5

643

4

652

5

651

1

706

2

721

2

6c.ic)

Seven Oaks

646 636 595 699 661 632 647 657 652 708 723
c.,4]
7':2-o

167

177

-

192

139

-

.1,.„....7.-

1:] .)

198

206

-

204

-

199

-

209

3

I3'3 I 76

.1,..:

/CS

__

Sugar Creek

167 177 192 :! 222 !;'!:`,• :toe 203 204 109 212 1855
(S.ti

Year

White Negi'o Total

White Negro Total

Whit'e Negro Total

1955-56 1956-57 1957-58 1058-59 1950-60 1960-61 1961-62 1962-63 1963-61 1964-65 1965-66
-)• (..- b
* •

324 335 303 325 310 297 288 288 291 324 271

324

-

335

2

310

2

327

-

310

-

207

1

239

-

2S8

-

291

11

335

11

282

;45 i

,3c133 2.7.-7);:?,i -8-

Children being trrtaensdpoin from

613

-

613

244

598

11

609

252

630

49

679

237

604

117

721

279

601

20

801

247

196

365

.361.

246

87

624

239

63

610

673

260

38

705

743

264

22

724

746

281

17

598

615

284

1 IC.0(

t

Gtr i

4, i S' t-qc) fsK

.7,' ;/ e,

other school ditricil 7 ?

244 252 287 279 947 246
260 264 281 284

a, •

Sumner

Timelier

T1'10. ill

Year

White Negro Total

White Negro Total

White Negro Total

1055-56 1956-57 1957-53, 1958-59 1959-GO 1960-61 1961•62 1962.-63 1963-64 1964-65 1965-66

10

473

483

31

479

510

35

459

494

27

503

530

11

455

466

7

457

464

17

424

441

10

400

410

33

416

449

Building Burned

Swinncy

535 627 631 611 570 549 551 555 560 571 579
5 S'e,

1

586

1

628

G31

611

570

549

551

555

560

1

572

3

582

5

5 e, 6.

5,/(,

'iciArce Trails

506

540

557

612

-

583

-

588

553

16

473

50

485

88

453

135

396

198

,2'73

'1"/-".3

.Volker

503 540 557 612 583 583 569 528 573 588 594 Ger.:"
71 C-

Year

Yrhite Negro Total

',Mite Negro Total

White Negro Total

1955-56 1956-57 1057•58 1058-59 1059-60 106C-61 1`.61-62
1963-64 1964-65 1965-66
rje6.
41/-6f -1,c/
Year

482

464

450

1

474

1

399

1

401

2

412

6

409

5

4;7

'7

409

7

415

05

0 3

Switzer

482 461 451 475 400 403 413 414 454 416 510 * 4-12_ rY; 1/71 2<

White Negro Total

Annexed 1957•58

522

522

541

541

558

55S

531

531

520

520

507

507

495

495

463

466

489

489

ti-71

7Z,

Troost

White Negro Total

345

345

322
5" ,Q

o44,

ry

328

302

302

231

281

269

269

299

290

2S9

261

261

269

269

294 23.!,;"

73

367 *

41 S' 5c.-.c,

27 5 -

B. T. Washington

,

1 9H-

White Negro Total

1955-56

700

162

862

479

479

1056-57

676

160

836

445

445

1957-53

694

34

778

41G

416

1953-59

670

52' 722

446

1

447

1959-60

779

68

847

422

3

425

1

1960-61

817

80

897

302

5

397

1961-62

632

103

785

368

5

373

1962-63

689

77

766

315

11

326

2

1963-64

636

79

715

312

1G

328

1964-65

677

107

734

347

14

361

1065-66
1'1(4 67 C.- -1- (- )5
*
C..:-(2 c•

686

153

339

323

11

334

t.58

17i

329

6.7.:i

--Z- 3 I

-5-35/-

3 .5

'27

3

Children being transported in from other uchool districts

as(-/ 3E2'5 )ei

.L-/ • -/

724 733 707 699 682 719 734 S23 S52 810 810
79 9
g
6 s'

724 733 707 699 633 719 73.1. 830 852 310 81.0
1 ?9 S (-)
6 y

Year
1955-56 1956-57 1957-58 1958-59 1959-60 1960-G1 1961-62 1952-63 1963•04 1964-65 1965-66 /94.6-(:7
C.
Year
1955-.56 1956-57 1957-58 1958-59 1950-60
1 :;60
3 1034-65 -66 )sus
060e.-1. 
Year
1955-56 1956-57 1957-53 1938-59 1959-60 1960-61 1961-62 1962-63 1963-64 1934-G5 1955-.66
tm8•

WheatioN,

White Negro Total

33

602

635

24

787

811

20

791

81].

15

777

792

9

702

711

10

709

719

9

839

81!3

2

862

864

2

331

833

2

821

823

1

835

836

z

g T7 .E137

:' ,71 ?

Sy-v.

White CI

6 C

\,1

White Negro Total

188 159 6 1 7 182 140 110 Bu ii

4

192

2

161

178

3

185

3,.,

143

3

113

' Closed

\.• Whittier 75:,

White Negro Total

961 919 968 875 801 850 899 804 848 875 882
"01 c 76?
/ 00

1

962

11

930

11

979

6

S81

2

803

1

851

2

901

4

803

9

857

5

880

1

883

r

'75-7-

r

-. rio

I

'7a/

Willarerj V

White Negro Total

592 588 580 572 583 594 594 625 520 649 622 56c, 11-2

11 49 t yi
4/::
and

592 588 580 572 538 594 594 625 620 660
671
7 ,s7
5',i 4/
1 .;

White Negro Total

723

211

527

237

559

181

533

196

578

227

548

283

547

477

272

743

181

796

100

825

99

901

5s;

(,erif

4)
Idtes

934 864 740 729 803 331 1,024 1,015 917 525 3,000 u77
I C7
(77

White Negro Total

1,234 1,234

1 1,260 1,261

1,163 1,163

1,050 1,050

1,023 1,028

993

993

1 1,001 1,002

962

962

963

953

090

990

965

065

10

SI/

53' /1

3

s?

S73 (

Yeager

White Negro To-:al

195

505

700

95

538

633

70

621

691

59

751

810

51

756

807

23

794

817

26

869

895

28

816

844

11

785

796

12

804

816

17

741

753

7 -;3c.

'1

/

7 :3

g

Mercy Hospital

White Negro Total

35 51 36 40 21 14 No i
Ae 45 13. 12 15

2 6 6 6 10 )
t.r.",)r1::atic.
li 82
8 11 ig

.77 57 42 ..,,c,
31 22 1, 30 77 21. 23 24

/5'

(„5-

'').-5

-k.

 
 PLAN TO REACH THE 15% NONMINORITY ENROLLMENT AS SPECIFIED IN THE AGREEMENT RECEIVED FEBRUARY 22, 1978 FROM THE OFFICE FOR CIVIL RIGHTS

PLAN TO REACH THE 15% NONMINORITY ENROLLMENT AS SPECIFIED IN THE AGREEMENT RECEIVED FEBRUARY 22, 1978 FROM THE OFFICE FOR CIVIL RIGHTS

I. FAbT tDatULLMLINI1 At.113111LJ
In April, 1978, the Kansas City School District launched an intensive, early enrollment program for the Lincoln Academy. Under an ESAA planning grant the District developed an extensive enrollment plan which incorporated visual presentations at all junior and senior high schools, special information and enrollment teams, news publicity, media presentations, news
conferences, and an array of informational and enrollment literature.
From the start the flow of applications increased rapidly. During May and June, as noted on Figure 1, the Lincoln Academy enrollment continued to climb to well over 160. Although additional applications were received after June, the total reached a high point during the summer of 183 nonminority students or about twelve percent of the population at Lincoln Academy.
The District had hoped to be able to assure these students and their parents by June or July at the latest that the Lincoln Academy would open its doors offering an attractive, well organized program on September 7, 1978.
When no word of funding was received, the District was unable to promise in good faith that a high quality educational program would actually exist in September, 1978. Anxiety about the Lincoln Academy's future heightened and literally hundreds of calls were made to the Magnet School Office expressing concern that the District would not be able to deliver on the promised program. In fact, some parents of s t. adents in private schools needed to know definitely by August 1 whether Lincoln Academy would operate in the fall.
After this date if they had not cancelled their private school application, they would lose their down payment on their private school tuition.
Finally on August 23, 1978, just nine working days before school was scheduled to start on September 7, the funding for Lincoln Academy was approved. Massive amounts of work had to be done in this short period-and was accomplished so that Lincoln did open its doors on time to its new students. One of the first tasks after funding approval was the sending of acceptance letters to all students who had completed applications for the Lincoln Academy. Unfortunately the long summer of no information had taken its toll.
On the opening day, September 7, 1978, 85 nonminority students actually appeared at the Academy (Figure 1). Immediately follow up letters were hand delivered by the home-school coordinators to the nonminority students who had not come to Lincoln on the opening day to complete their enrollment. From these contacts some twelve more nonminority students were enrolled.
As the Academy moved into September the administration was faced with the task of developing a totally new school program with a new faculty, a completely new school organization, a new curriculum, and, simultaneously, with the enrollment of about 159 nonminority students. And after school started the enrollment had to be based on how the program appeared to visitors, not on good intentions or attractive plans for the future.

Shortly after school started enrollment teams of Academy students and teachers began visiting the five predominately nonminority District high schools. During these meetings, invitations from Academy administrators were distributed to parents and students. They were encouraged to attend evening meetings for more information regarding the program offerings at the Lincoln Academy. These meetings, held at the students' home schools, attracted additional nonminority students to enroll at Lincoln.

Figure 1

LINCOLN ACADEMY NON MINORITY APPLICATIONS AND ENROLLMENT

Week of:5/8 5/15 5/22 5/29 6/5 6/12 6/19 6/26 7/3 7/10 . 7/17 7/24 7/31 8/7 8/14 8/21 8/28 9/5 9/11 9/18 9/25 10/2 10/S10/6

200 190 180 170 160 150 140 130 120 110 100 90 80 70 60 50 40 30 20

Close of school ,TJ. une 9
Non minority Application Trends May 8 - August 28, 1978

Nonminority Enrollment Trends Sept. 5 - Oct. 30, 1978

'Plus 4 half-day studen,
Note: The nonminority application high watermark was reached Aug. 14, 1978 - 183 students or about 12%.

student visits to Lincoln, as well as public information to acquaint target groups-about Lincoln opportunities and the District efforts to assure the public that the Lincoln Academy and the magnet schools are permanent educational opportunities for District students.
Base Enrollment Data
Enrollment data for the projections used in this analysis will be based on the November 6, 1978, report submitted to OCR/HEW during our discussion session on November 9, 1978. Table 1, Figure 2, and all activities presented in subsequent pages are based upon the November 6 report which reports 131 full time students and 6.5 Tull time equivalent students, or a total of 137.5 nonminority students enrolled at the Lincoln Academy.
Note: Since this meeting an additional 16 nonminority students have been enrolled as indicated on the November 20th report.

requesting enrollment in these advanced courses on a half-time or full time basis. (See page 23.)
Restrictions will be retained on the admittance of minority transfers or reassignments until the District's nonminority enrollment goals have been attained. When the goal is reached-the administration will continue to monitor the racial percentages with great care to ensure maintenance of desirable ratios. As noted in the Activities section of the report on pages 12-24, our goals will exceed the OCR minimum of 15% nonminority students. Thus the continued desegregation of Lincoln Academy may be assured.
Just a word about our target date. As may be seen in the Activities section most of the enrollment activities noted will have either begun by the publication date of this report or will begin in the following month. , Similarly most of the activities are scheduled to conclude in the period January 18, 1979 to February 2, 1979.with the exception of the city-wide spring preliminary enrollment for Lincoln Academy (see page 14) which will end on February 8, 1979. By this date the activities will have produced the necessary results.

ESTABLIS}1ENT OF SCHOOL VOLUNTARY GOALS FOR NONMINORITY ATTENDANCE AT LINCOLN ACADEMY
In order to plan the enrollment effort which will be described in subsequent pages, voluntary enrollment goals are established for each secondary school in the District which has a significant nonminority enrollment.
The recruitment goal for each secondary school is shown in Table 1. The goals were determined in the following manner.
1-The number of nonminority students needed to produce a 15 percent nonminority enrollment at the Academy was determined to be 244. This number was computed on the basis of a November 6, 1978 minority enrollment of 1379.
2-The number of additional nonminority students needed at the Academy was determined by subtracting the November 6, 1978 nonminority Academy enrollment of 131 from 244. The number of additional nonminority students needed is 113.
3-Based on October 10, 1978 enrollment figures, the nonminority ity enrollment below twelth grade at each desegregated secondary school was determined. The percentage of the District's nonminority secondary school students attending each school was-then computed.
4-The goal of additional nonminority students from each school who would attend Lincoln Academy was established by multiplying the percentage of the District's nonminority secondary school students attending the school by the number of additional nonminority , students needed (113) to achieve a 15 percent nonminority enrollment at the Academy.
It can be seen in Table 1 that achieving a 15 percent minority enrollment at Lincoln Academy will not have the effect of resegregating the presently desegregated schools in the District. The minority enrollment percentage will not increase by more than one percent in any school as the result of the school achieving its recruitment goal. In 8 of 13 schools the increase is less than one percent.
Figure 2 shows the present status of nonminority enrollment, 137.5 nonminority students or 9.07% on Nov. 6, and a projection to 244 nonminority students or 15% on February 8, 1979.

Table 1 Goal of Additional Nonminority Students from Each Secondary School to Attend Lincoln Academy by February, 1975

School
Senior Highs East Northeast Southwest Van Horn Westport

Grades served
9-12 10-12
9,-12
10-12 9-12

Percent minority enrollment October, 1978

Nonminority enrollment below
twelfth grade
October, 1978

Additional Lincoln Academy nonminority attendance goala

Percent minority enrollment after meeting Lincoln Academy attepdanc( goal

54%

535

13

547.

44%

398

10

45%

53%

472

12

547.

42%

660

16

43%,

76%

212

5

767.

Junior Highs

Ashland

Bingham

7-8

Fairview

7

Harrison

7

Leeds/Dunbar

7

Northeast

7-9

Nowlin

8-9

Westport

7-8

53%

177

63%

279

51%

126

42%

141

49%

188

49%

660

41%

650

78%

151

4

537.

7

. 64%

3

517.

3

437.

4

497.

16

49%

16

417.

4

78%

Total

- -

53%

4 i_649

1131)

53%

a b

Additional Di. fference

students between

to those attending Lincoln Academy November 6, 1978. nonminority students needed to produce 15 percent nonminority

enrollment

at

Lincoln

Academy (244 nonminority , given 1379 minority) and those presently enrolled at the Academy (131 on 11/6/78)

245 240 235 230 225 220 215 210 205 200 195
190 185 180 175 170 165 160 155 • 150 145 140 135 130 125 120 115
11 0
105
10 0
95
9d

Sept. 5

Figure 2 NONMINORITY ENROLLMENT TO NOVEMBER 6 AND PROJECTED ENROLLMENT TO FEBRUARY 8, 1979
Nov. 6

Feb. 8
•

REQUIRED PERCENTAGE PROJECTION
244 ho►.dinorit students or 15 on Feb. 8, 19

a
131 full time and 6.5 FTE 137.&nonminority students or 9.07%

Date

Responsible

11/15/78 - Central Steering Continuing Committee

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979 Activities

Projected Numbers of Studi to be Enrolled

A. A CENTRAL STEERTNG COMMITTEE OF PARENTS, NEIGHBORHOOD PERSONS, AND COMMUNITY LEADERS
A great many persons, including parents, neighborhood persons, and community organization leaders have indicated their solid support for the Lincoln Academy and its objectives of quality, integrated education. A large number of these persons have stated that they will he willing to help the District achieve its goal of a minimum 15% nonminority enrollment. (Appendix B)
Accordingly a steering committee is being established which will plan the necessary district-wide strategy for nonminority enrollment at Lincoln Academy. This committee will provide the leadership to promote the enrollment campaign and to achieve the required goal.
Committee members will be available for individual conversations with prospective students/parents, will provide information available to the media, will make presentations to parents anil community groups. In addition members may host coffees, and other informal gatherings in their homes to inform interested neighborhood people about the Academy, and be on call to answer questions and respond to concerns.
It Should also be possible by involving the community organization that direct contact can be made with persons who currently have children in private schools.
Experience has also shown that among the strongest and most productive advocates for Lincoln are the parents and children currently enrolled. They are also effective persons to bring the message to potential enrollees and their parents.
This Central Committee approach broadens the responsibility for achieving the required nonminority percentage and makes the entire community active participants in this effort.

See B. Team Activities for F Numbers

Date

Responsible

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979 Activities

10/12/78 - School-Community 1/18/79 Relations Team
Central Steering Committee,
School-Community Relations Team, High School Principals, counselors

B. TEAM ACTIVITIES
The School-Community Relations Team is composed of two experienced, Community Specialists who have the primary responsibility for contacting nonminority students. The biracial team which is just beginning to show results, works cooperatively with the Central Steering Committee, principals, counselors, promotion staff, parents, and students to identify and enroll new students in a school-by-school effort which will be described. (The School-Community Relations Team also maintains contact with enrolled students and their parents in order to insure continued satisfaction with the Academy program.)
The plan for enrollment is based on individual student and parent contacts. The procedure was developed by the team in cooperation with the faculty and administration at East High School and will be used with needed modifications in other senior and junior high schools.
e
a. The Enrollment Plan for each high school begins with a tour of the Academy by the High School Advisory Chairman, the PTA President, parent leaders, and Board of Education members. Hard incisive questions are asked and negative feelings are expressed.
b. The team then meets with the PTA Board, the School Advisory Board and counselors to inform them about the Academy and answer questions and respond to concerns. After the trip and the discussion the climate is based on facts and what the visitors have personally seen. A vastly improved enrollment climate results.
c. The next step is to meet with the principal, community support persons (see Section C) and parents to devise procedures for student/parent visitation to the Academy and enrollment of new students.

Date

Responsible

ACTIVITIES - Nov. 6, 1978 - Feb. 8 1979
Activities
d. Students and parents visit the Academy.
e. Lincoln Academy's course offerings for the second semester are distributed to students. Early enrollment for potential Lincoln students may enroll early. (See Section D.)
f. In order to insure that the enrollment goals for each school are met, the following responsibilities have been set forth:
PRELIMINARY TO ACADEMY VISIT
Central Steering Committee: 1) Establishes plans for enrollment, 2) makes contacts with appropriate community organizations, and 3) demonstrates active support and leadership for the enrollment effort. Principal: 1) Actively encourages enrollment, 2) writes and signs letter to parents, and 3) involves counselors in actively contacting students.
Counselors: 1) Actively encourage student interest in the Academy, 2) talk with individual students and groups to po i nt up the positive features of the Academy, and 3) help new Academy enrollees to plan schedules for one-half or full day.
Students: 1) Turn in names to counselors, and 2) list courses they want.
School-Community Relations Team: 1) Visit classrooms, 2) be available at specified times for informal conversation, 3) meet with students to plan visit to Academy, 4) call parents to discuss the transfer, 5) set up visits and arrange for transportation, 6) ride bus with students and parents, and 7) recruit and train Academy student guides for the visits.
Headmaster: Arrange activities at Academy to insure a well planned visit.
Deans: Send a welcome letter to prospective students.

Date

Responsible

10/12-78 11/10/78
10/31/78 12/1/78
11/15/78 12/1/78
11/7/78 11/21/78
12/1/78 12/15/78
12/7/78 1/18/79

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979 Activities

DURING VISIT TO ACADEMY

Headmaster: Greets students and welcomes them.

Academy Students: Show the school and its program to guests and answer questions.

Academy Teachers: Make guests feel welcome.

AFTER THE VISIT TO THE ACADEMY

Central Steering Committee: Assess the impact of the enrollment effort and make continuing plans for follow-up.

The School-Community Relations Team: Will follow-up on: 1) students who are undecided, 2) students who still want to visit or who want to visit as a result of what they heard from friends who visited, 3) students enrolled at the Academy to make sure that they and their parents are satisfied, 4) work out any problems, and 5) enrolled students identify other potential enrollees.

1. EAST HIGH SCHOOL Procedure as previously described.

2. VAN HORN HIGH SCHOOL Procedure as previously described.

3. WESTPORT HIGH SCHOOL Procedure as previously described.

4. NORTHEAST HIGH SCHOOL Procedure as previously described.

5. SOUTHWEST HIGH SCHOOL Procedure as previously described.

6. JUNIOR HIGH SCHOOLS - NOWLIN, BINGHAM, ASHLAND, NORTHEAST,

LEEDS-DUNBAR, HARRISON, FAIRVIEW, WESTPORT

Procedure generally as before - modified for grades seven

and eight.

PROJECTED NEW ENROLLMENT

113 students

Projected Numbers of St to be Enroll:
' 13 students 16 student:
5 students 10 students 12 students 57 students

Date u;

Responsible

11/27/78 - Central Steering

1

Continuing

Committee,

School-Community

Relations Team

11/20/78 2/8/79

Principals

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979
Activities
C. PARENTS/COMMUNITY PERSONS SUPPORTING ENROLLMENT
In close coordination with the enrollment efforts of the Central Steering Committee, key contact persons in all areas of the School District with substantial nonminority enrollment will visit schools, talk to adult friends, and encourage students to attend the Academy. Both adults and students attending Lincoln Academy will provide information to students and their parents who may be interested in the Lincoln Academy.
D. STUDENT ENROLLMENT - MID-YEAR AND SPRING
There are two periods during the school year when students normally will make changes in the selection of courses to meet their interests, needs, and abilities. They are at the mid-year and spring preliminary enrollment. Many circumstances cause the student to make mid-year changes in their initial spring enrollment plans. To accommodate these needs, mid-year changes in their courses are made. Counseling oP students on courses to be changed at mid-year occur beginning in mid-December and continue through mid-January when the second semester begins.
During the spring preliminary enrollment, beginning in early February, the student consulting with the counselor and their parents usually determine the educational program for their secondary education, and courses are selected for the next school year.
It is during these two periods that the greatest opportunity occurs to enroll students in new educational programs.
The School District will develop two special enrollment programs to work with the students, administrators, counselors, parents and staff to enroll students for the Lincoln Academy that will enable them to meet the compliance goals.

Projecte Numbers of to be Enrol
See item B Projected IN

Date 11/20/78

Responsible

11/22/78

11/27/78

ACTIVITIES - Nov. 6, 1978 - Feb. 8 , 1979 Activities

The first plan mill involve the mid-year change period. Procedures and plans will be developed and implemented in target schools by November 20, 1978.
Workshops and informational meetings will be held with administrators and counselors by November 22, 1978. The plan will place emphasis on the enrollment of students for the Lincoln Academy first, and for students who are:
1. interested in accelerated courses 2. able to enroll in courses offered at the Academy
that are not offered in their present school 3. disenchanted with the present educational program
and school, and 4. in need of remedial educational help

Mid-year enrollment for the Lincoln Academy begins November 27, 1978, three weeks prior to the regular mid-year enrollment.

The second plan will be an intensive program to enroll students for the next school year during the preliminary enrollment period. Enrollment procedures and plans will be completed and initiated by January 20, 1979. Workshops will be developed and held for counselors and administrators in the schools to:

1. enroll Lincoln Academy students first

2. explain the student enrollment plans

3, inform them of the educational programs at the

Lincoln Academy

-

4. notify them of the voluntary goals for each school

Spring preliminary enrollment for the Lincoln Academy will begin January 20 and continue through February 8, 1979. Spring preliminary enrollment for the secondary schools will begin February 8, 1979 and continue through March 29, 1979.

Projected
Numbers of St to be Enroll!
20 student
35 student

Date

Responsible

1 1 / 1 0/ 78 School-Community -2/579 Relations Team

11/27/78 2/5/79

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979 Activities

Projected Numbers of Ste to be Enrolled

E. ENROLLMENT OF STUDENTS LIVING OUTSIDE OF THE KANSAS CITY SCHOOL DISTRICT
Enrollment of and direct costs for nonresident secondary students to attend the Academy has been approved by . the U.S. Office of Education. Under this agreement nonresident students wishing to attend Lincoln Academy would not be required to pay district tuition.
To implement this plan it will be necessary for an institution, probably a college or university, to agree to administer the program. A local institution has already expressed interest in this plan and we are in discussion with the institution's administration at this time.
Under the plan the institution will agree to provide transportation for any student from the metropolitan area who enrolls in Lincoln. In addition the institution will employ the needed staff, both teaching and administrative, and will support tpe program with books, supplies and other needs. In effect, the institution would agree to provide all needed services to the nonresident students while direct day-to-day supervision of the Lincoln Academy program would remain in the hands of the Headmaster and the Deans.
Timeline:
Contact institutions which will agree to implement the nonresident student program for Lincoln Academy.
Develop a enrollment program strategy to acquaint metropolitan area students with the opportunity to attend the Academy beginning in January, 1979. Particular emphasis will be placed on enrollment of potential gifted and talented students. (See Section F following.)
Begin enrollment activities in the metropolitan area.

30 student!

Date

Responsible

12/2/78 2/2/79

Division of Special Education, School-Community Relations Team

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979
Activities
F. INTENSIVE GIFTED AND TALENTED ENROLLMENT PROGRAM
In addition to those enrolled now at Lincoln Academy some 510 gifted and talented students are known to be enrolled in the other secondary schools. Most of these are nonminority students.
Procedures
1) With an up-to-date list of G/T students make personal contact with each student.
2) Develop a student produced audio-visual presentation about the Lincoln Academy which will be shown by Lincoln students to prospective enrollees in other schools. Along with the presentation provide a interest questionnaire and take home information specifically aimed at G/T students.
3) Identify G/T students, parents, and teachers to serve on enrollment teams.
4) Through the cooperation and efforts of the Central* Steering Committee and the counselors set up meetings of potential enrollees in homes, schools, churches; show the audio-visual presentation; and then follow this presentation with a visit of interested students and parents to Lincoln Academy.
Particular emphasis will be placed upon contacts with students now in junior and senior high schools who have G/T characteristics but who are adjusting poorly or even failing in the_regular program. They will be offered the opportunity to enroll at the Lincoln Academy in January.

Projected Numbers of Sti to be Enrolle
35 studen

Date

Responsible

ACTIVITIES - Nov. 6, 1978 - Feb. 8 , 1979 Activities

12/4/78 2/5/79

School-Community Relations Team, Division of Special
Education

G, NONRESIDENT GIFTED AND TALENTED ENROLLMENT PROGRAM
There is considerable evidence that large numbers of very capable secondary students in the metropolitan area surrounding the Kansas City School District would be very much interested in the gifted and talented program at Lincoln Academy. This interest has been intensified by recent increases in private and parochial school tuition. The new, nonresident enrollment program described previously provides metropolitan area nonresident students an excellent opportunity for attendance at Lincoln Academy.
Plans are underway to inform potential gifted and talented students from the metropolitan area of the Lincoln Academy opportunity. Plans include the following activities:
1. Contact headmasters, principals of private and• parochial schools and suburban schools to inform them of both the shared part-time and full time gifted and talented program. The full time prograd is the regular Academy G/T program. The shared part-time program includes: a twenty-first century seminar, a humanities seminar, a sports seminar, and a variety of Academic Games.
2. Aim recruitment toward nonminority students who applied for the Kansas City, Kansas Sumner Academy and could not be enrolled because of lack of space. Many other suburban districts have no gifted and talented program at all.
3. Make contacts with potential Academy students through the local Association of Gifted and Talented.

Projected Numbers of Stuc to be Enrolled
Numbers includ E.

Ma_

Date
12/4/76 2/2/79

Responsible
Pupil Services Department

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979
Activities
H. LOCATION OF OUT OF SCHOOL HANDICAPPED PROGRAM AT LINCOLN ACADEMY
Since 1976 a program known as Providing Education for Out of School Handicapped (PEOSH) has operated in the Kansas City, Missouri School District.
This program is designed for students who are not now making satisfactory educational progress because of limited motivation or because they are not in appropriate educational programs. This group includes students who are in school and students who are out of school.

The special diagnostic and prescriptive strengths of the Lincoln Academy will provide attractive opportunities for these young persons. Students selected for enrollment will be carefully screened to ensure that they are able to meet the accelerated learning requirements of the Lincoln Academy.
Minor remodeling and renovation funds are available in existing program grants to install needed refurbishing at Lincoln to meet the basic needs of handicapped secondary , students. Authorization to reallocate these funds has been assured by the ESAA Projects Officer

Date

Responsible

12/1/78 - Division of Secon-

2/2/79

dary Education

1/2/79 2/2/79

Career and Continuing Education' Department

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1978
Activities
I. PROGRAMS TO MEET SPECIAL GRADUATION NEEDS
Each year there are a certain number of high school seniors in the District who lack one or two credits needed to graduate at the end of their senior year. Students in this category will be identified and encouraged to enroll at Lincoln Academy
for the second semester where, through flexible scheduling
and accelerated programs unique to the Academy, they will be able to graduate in the spring of 1979.
Students who are in their junior or senior year and who are significantly deficient in graduation credits frequently become school drop-outs. A GED (General Educational Development) program will be established at Lincoln Academy which will allow students of high school age to obtain a GED Certificate when it is impractical for them to remain to graduate.

Projected Numbers of Stu to be Enrolled

20 studen

Date
12/2/78 2/2/79

Responsible
Division of Secondary Education

12/2/78 2/2/79

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979
Activities
J. PROVIDE CLASS ENROLLMENT OPPORTUNITIES PREVIOUSLY DENIED
Throughout the District there are students who request certain classes whose requests are denied because either all sections of the classes are filled or there are not sufficient numbers interested in the classes to offer them. Second semester preenrollment data and course offerings at each secondary school will be scrutinized carefully to identify those students whose course requests are denied. Individual contacts will be made with these students to encourage them to transfer to Lincoln Academy where they will be able to enroll in the courses requested and denied at their school of residence.
K. INTENSIVE COLLEGE PREPARATORY COURSE
A considerable number of urban secondary school students are unable to convey to colleges and universities the fact that they are capable of college work. This is primarily caused by inadequate test taking skills, as well as limited vocabulary, and math skills.
A special course will be set up at Lincoln during the second semester to improve students SAT and other test scores. In addition there will be intensive study of vocabulary, logic, math and other areas emphasized in college entrance testing.
This course, the only one of its kind in the District, will be open to enrolled students. It will be conducted during the spring semester with an additional course offered during the summer to potential Lincoln students and regular Academy students.

Date

Responsible

11/20/78 1/24/79

ACTIVITIES - Nov. 6, 1978 - Feb. 8, 1979 Activities

Projected Numbers of Stu to be Enrolled

L. PROMOTIONAL ACTIVITIES AND OTHER SUPPORT
A promotional plan is under consideration to support activities previously described and certain additional activities promoting increased nonminority enrollment at Lincoln Academy. While not in final form the promotional plan is included as Appendix C.
This plan incorporates continued opinion research, new courses, i.e. enrichment courses, mini courses, college preparatory courses, publication workshops, athletic short courses, do-ityourself skill courses; as well as the development of Lincoln Associates or tour guides for the Academy, special tours of Lincoln, enrichment courses for teachers, Science Pioneer workshops, and a sectional Science Fair.
In order to assure success of this plan the resources of all divisions and departments of the school system will be engaged as a matter of utmost priority. The importance of meeting the enrollment goal is controlled by Board policy and Superintendent's directive.

Numbers includ4 in previous
components.

IV. NONMINORITY ENROLLMENT BEYOND FEBRUARY 8, 1979
Once the Lincoln Academy reaches the required fifteen percent of nonminority students it should be relatively easy to maintain and to increase this enrollment. Several factors are working toward this end: 1) the Lincoln Academy program is becoming more attractive as more people become acquainted with it. The enrolled students appear to enjoy the program as noted in the excellent attendance gain, i.e. from about 80% attendance last year at Lincoln High School to 93% attendance this year as Lincoln Academy, 2) this has resulted in accelerated enrollment of nonminority students even after the school year has begun.
From all indications the popularity of the Academy is definitely on the rise.
The following pages provide a description of the activities planned for the period February 8 , 1979 to September 1, 1979.

misaouri, met in a

_

February 23, 19.78, in the Board Room, Board of

1211 McGee, with the following members present: Mr. Samuel J.

Carpenter, President; Mr. James P. Bonadonna; Mr. Fletcher Daniels

Mrs. Karen K. Lewis; Dr. Donald W. Mocker; Mrs. Mary Roberspn; Dr.

Edward W. Scaggs; Mrs. Joyce Stark, being all the members of the

Board except Mr. Maurice E. Dwyer, who was absent.

Mr. Samuel J. Carpenter, President, in the Chair.

Among other proceedings, the following was had and made:

Mr. Daniels moved that the Board approve the following Resolutioi agreeing to certain modifications in the plan adopted by the Boa: on March 20, 1977:

RESOLUTION

BE IT RESOLVED, that inasmuch as Office of Civil Rights Director, David S. Tatel, has indicated by letter of February 22, 1978, th the Office of Civil Rights shall approve the Title VI compliance status of the District if certain modifications are made in the plan adopted by the Board of Education on March 20, 1977, the Board hereby modifies the March 20, 1977 plan to include the
following provisions:

1. Effective September, 1978, non-minority students enrolled at Lincoln High School will be no less than 15% nor more than 30% of the student body. The District may assign students to Lincoln using the "magnet" school device or such other plan or combination of plans selected by the Board provided only that the target percentage of nonminority students is achieved.

2. Beginning with the 1978-79 school year all site selections for new educational programs offered at the elementary level will be made to promote desegregation of the overwhelmingly
or entirely black schools.

3. Effective with the 1973-79 school year the policy or practice of permitting senior high school students a transfer option solely because of their senior status shall be discontinued.

4 The policies and practices controlling faculty assignments, recorded in the School District's 1973 ESAA waiver assurance, shall be fully operative; the District shall establish administrative procedures to obtain compliance with such policies at each school of the District.

5. Effective 1978-79, the District will implement and maintain procedures which assure that each health and child care transfer is not used as a device for inhibiting desegregation.

.et in a SPECIAL MEETING at 3:45 p.m., ." 3, 19_78, in the Board Room, Board of Education ,_ , with the following members present: Mr. Samuel J. President; Mr. James P. Bonadonna; Mr. Fletcher Daniels K. Lewis; Dr. Donald W. Mocker; Mrs. Mary Roberspn; Dr. Scaggs; Mrs. Joyce Stark, being all the members of the :ept Mr. Maurice E. Dwyer, who was absent.
el J. Carpenter, President, in the Chair.
ther proceedings, the following was had and made:
)aniels moved that the Board approve the following Resolutio, eing to certain modifications in the plan adopted by the Boa. Larch 20, 1977:
RESOLUTION
IT RESOLVED, that inasmuch as Office of Civil Rights Director vid S. Tatel, has indicated by letter of February 22, 1978, th le Office of Civil Rights shall approve the Title VI compliance tatus of the District if certain modifications are made in the Lan adopted by the Board of Education on March 20, 1977, the 3oard hereby modifies the March 20, 1977 plan to include the following provisions:
1. Effective September, 1978, non-minority students enrolled at Lincoln High School will be no less than 15% nor more than 30% of the student body. The District may assign students to Lincoln using the "magnet" school device or such other plan or combination of plans selected by the Board provided only that the target percentage of nonminority students is achieved.
2 Beginning with the 1978-79 school year all site selections for new educational programs offered at the elementary level will be made to promote desegregation of the overwhelmingly or entirely black schools.
3. Effective with the 1978-79 school year the policy or practice of permitting senior high school students a transfer option solely because of their senior status shall be discontinued.
4 The policies and practices controlling faculty assignments,
recorded in the School District's 1973 ESAA waiver assurance, shall be fully operative; the District shall establish administrative procedures to obtain compliance with such policies at each school of the District.
5. Effective 1978-79, the District will implement and maintain procedures which assure that each health and child care transfer is not used as a device for inhibiting desegregation.
..•

 
 THE SCHOOL DISTRICT Or KANSAS CITY. mISSOURt

MEMORANDUM

TO

Dr. Richard Griffith

DATE : November 4, 1974

FROM

: Paul Holmes--'

SUBJ6T

Officé- for Civil, Rights' request for explanation of changes in minority and hon-minority„xgrouwenrollments in selected District schools

As you are aware, on Wednesday, October 30, 1974, in a meeting with

School District staff, Mr. Jesse High of the Office for Civil Rights

requested an explanation,orthe changes in minority and non-minority

group enrollments'in selected District schools over the period from

054 to 1974. ?ou may recall that the specific enrollment shifts

of interest 'to OCR are as follows:

SCHOOL

FROM:4

TO

Chick

Faxon

w.0.0

Graceland

Greenwood

Humboldt

423' non.?.mnori ty in 1955/56 34 non-minority in L973/74

351 non-minority in-1955/56 12 non-minority in 1973/74

xt

252 non-minority iii 1955/56
e-

0 non-minrotiy in 1973/74

171 non-minorityAn 195U56, 5 non-minority in 1973/74 N%.

622 non ,minority ini955/56^'N3*n-minority in 1973/74

Ladd

799 non-minority in 1955/56

5 non-minority in 1973/74

Linwood

675 non-minority in 1955/56

0 non-minority in 1973/74

Marlborough 679 non-minority in 1954

112 non-minority in 1973/74

Meservey

983 non-minority in 1959/60 11 non-minority in 1973/74

Milton Moore 533 non-minority in 1955 Milton Moore 12 minority in 1955

11 now-minority in 1973/74
4 r
41 minority,. in 1973/74

Pershing

551 non-minority in 1955

non-pinority in 1973/74

Switzer

719 non-minority in 1955

137' non-minority in,./ 3/74

Troost -

479 non-minority in 1955

75 non-minority in "1973/74',

Central-

1769 non-minority in 1953/54 1553 non-minority in 1955/56

Southeast Jr. 90 minority in 1962/63

1228 minority,;' i 1973/74

Central-Jr. 469 minority in 1955

1885 minority in 1966/67 CLERK U.S. DISTRICT COURT

AN EOUAL OP P ORTUNITY EMPLOYFR .1-

Ep'01.48D

Case No.

77-0420-CV-1•-4

;,

To DDr. Richard Griffith from Paul Holmes
Re: Office for Civil Rights' request for explanation of changes in minority
and no4-minority group enrollments in selected District Schools
Page Two ! November 4/1974

Based on the best information available within the District all of the above changes in school enrollment except for Humboldt can be explained in terms of changes in location of residence by minority and non-minority group patrons. Wher‘,,therehas beepy4a decrease in non-minority group enrollments, there has been/a corresponding move by non-minority group patrons from the school attendance zone and an influx of minority group patrons.

r °"'

A ‘.

In the case of Humb1dWihe'decrease in non-minority enrollment is due to the

fact that in September of 1968 aumbOldt was closed as an elementary school and

became a special school for secondarrq evel students having difficulty adjust-

ing to regular Secondary schools

should be noted that in 1967, the last

year Humboldt operated as an elementary school, the minority group enrollment

was 13.5% at Humboldt, 6mpated with 19.9% minority group enrollment. in 1955.

In summary, with theeiceptionotHumbOldt, the changes in minority and nonminority group enrollment which have been noted can be explained in terms of population shifts and changes 61 residential patterns.

4•,0
cc: Jesse High, HEW Office for Civil Rights

■••

„,

Attachment - 95 Schools

1954-55 Black Schools

1974-75 Black Schools

1. Attucks. 2 Bannek6. r 3 Penn .4• PhillipsIV
5y. Sumner

6" 4Uee 7. 'Carver

40* •

94 Dunbar _

11. B. T. Washingtonv/

4
A e„p

12. Wheatley

13. Yates

14. Lincoln Sr. High, 15. R. T. Coles Jr: & Vocational

16. Jackson County Home

1. Attucks

2. Bancroft

3. Blenheim

4. Chick

5. Douglas

6. Faxon

7. Franklin

8. Graceland

9. Greenwood

10. Holmes

11. Knotts

12. Kumpf

13. Ladd

14. Linwood

Mann

16.' Melcher

Merservey

1184 Moore

119. Pershing

20: Phillips

21. Pinkerton

22. Richardson

43. Seven Oaks Troos

25. Twain

.

26. Washington

27. Weeks

28. Wheatley 4,,

Willard k0'

304 Woodland

31. Yates

t 32. Central Jr.

33. King Jr.

34t, Lincoln Jr.

Southeast Jr.

36. Central tr.

37. Lincoln Sr.

38. Manual Sr,

39. ManualAnne*,5'f

40. Paseo Sr

e

41. Southeast Sr.

42. HumbOldt

 
 ; . '4,

( r.

DEOARTMENT OF HEALTH, EDUCATION, AND WELFARE

4.

OFFICE OF THE SECRETARY

WASHINGTON, D.C. 20201

/
row

11/4 0*
.00

„.„
mt. tanitiel Carpenter .fe Presidents''
Board of EducatioteSchodl Board IKansas City, Miesodpi '64106

Dear Mr,,tarpener:

,

,.,

gt

10-

ses'l

The

`
Office

for

,/, CivilRightp

a,g,, rees

that

the

school

district

will

attain compliance with Title VI ifits "Interim Plan C" is modified

to include the following provisitffis:

'

.e'ss

i4

#I••
1. Effectiiie September, ,I97801 ncin-minority students

enrolled at Vincolnjiigh 4phool will ke,,,no less than 15% nor

more than 30% of the stddent body. V.,

drStrict may assign

students

i'rr *,

vice or such

other plan or combination of plans seletted .oby the Board provided

only that the target percentage of no-minority students is

achieved.

,.3,
2. Beginning with the 19,78-79'school'year all site selections
for new educational progr,ams,, o44f,- fered at. the''elementay level will be
made to promote desegregation the*eFi:Thelmingly orf,entirely black schools.

p
3. Effective the 1978-79 school year the policy or practice of permitting senior high school students a transfer option solely because of their senior status shall $e discontinued.

4. The policies and practices controllinvfaculty assignments, recorded in the school district's 1973 ESA waiver;. assurance, s4aal

be fully operative; the district shall establish administrative
procedures to / obtain compliance with such policies acA,0ach scn0o1,„og

of the district.

1

5. Effective 1978-79, the district wi

4- - e
implement and maintain

procedures which assure that each health aril child c'retransfer is

not used as a device for inhibiting desegregaion. /

00,

CLERK U.S. DISTRICT COURT

147

Case No.

4 E44 11;bi I- I CcQ)

FED 22 1978
OFFICE OF THE SlartiNTERDEXI

7„;

e.

g ,./ 6..4/The District will continue non-discriminatory optional

zone6

and

at

ure

-A . that aj..1

students

assigned

within

the

optional

tzroan, nessf4rre. mja.isn'iirmioa,dt...eh, atthrsocuhgoholthaessDiigsntmriecntt'sunilnetsrsa

application for district transfer

pi o c Ott' e . ,,,,,K#0''''

,44' A

P
'.,. We

s.t.w.'-,K64 <WM expect

,447

A

your4' ''immediate

response

agreeing

to

or

rejecting

the

. ,,

0 k,‘,, ‘ 'lasted modifications4

A ,

Sincerely,

i 1 ffice pavid-S. Tatel Pirctor or ivil
iL

f

0oe

, :fttkvuvy4>ftROAt

*

›ft„,„„
^,,,.

Je

,,Ir / . •.

 
 ATTACH:LENT

THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE WASHINGTON. 0. C. 2020 f
March 24, 1978

Mr. Robert Wheeler Superintendent Kansas City School District 1211 McGee Street Kansas City, Missouri 64106

Dear Superintendent Wheeler:

I am pleased to inform you that I have granted a waiver of

Aicntel(iEgSiAbail)ittyo

for the

assistance under the Emergency School Aid Kansas City School District, Kansas City,

Missouri.

q I have taken this action on the assurances by your district
that it will conform to the re uirements of the ESAA statute and Regulation and that it will comply with the terms of the agreement between this Department and the Kansas City School District upon which this waiver is based. The terms of this agreement, which I have approved and incorporated in this letter by reference, are set forth in the enclosed report from Mr. David S. Tatel, Director of the Office for Civil Rights (HEW).

The appropriate Congressional Committees have been advised of my determi%nation to grant the waiver of ineligibility. I congratulate you on the positive actions taken by your district which have made this waiver possible. I can assure you that this Department stands ready to be of assistance at all times to help further the goals of equal educational opportunity for all students.

If you desire further assistance or clarification of the terms of this waiver, please do not hesitate to contact Mr. Tatel or other appropriate officials of this Department.

Sincerely,

Enclosure
cc: Chief State School Officer Regional Commissioner/OE Director, Office for Civil Rights, Region VII

Jr.
\J D MAR 27 1913

OFFICE OF TEE S3(1EFI:STMEit

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OFFICE OF THE SECRETARY
WASHINGTON. D.C. 20201
Waiver of Ineligibility for Assistance Under the Emergency School Aid Act to Kansas City School District,
Kansas City, Missouri
On August 12, 1977 and September 14, 1977, Herman R. Goldberg, Associate Commissioner, Equal Educational Opportunity Programs, Office of Educatiori>t upon the advice of the Office for Civil Rights, informed the Kansas City School District that it• was ineligible for ESAA assistance because it had engaged in practices which were in violation of the requirements for eligibilit y contained in the Act and the implementing regulation. Specifically, the school district's noncompliance is the result of discrimination on the basis of race in the assignment of students to schools by not dismantling its former dual system and by adopting various policies and procedures which operate to segregate further the system in violation of 45 CFR 185.43(d) of the regulation. (Section 706(d)(1)(D) of the Act (20 U.S.C. 1605(3)(1)(D)).
On April 14, 1975, after conducting a full on-site investigation, OCR notified the district that it was in violation of Title VI of the Civil Rights Act of 1964 for (1) failing to dismantle its former dual system and to eliminate all vestiges of that system, () adopting various policies and procedures which operated to segregate further that system, and (3) affording educational opportunities to minority students in predominantly minority schools that were inferior to the educational opportunities provided in nonminority schools.
After OCR rejected a desegregation plan submitted by the district on June 10, 1975, an administrative hearing was held in early 1976. On December 22, 1976, the Administrative Law Judge (AUJ) entered an Initial Decision and Order which found that the district failed to dismantle its former dual school system in 1955 and that it had not done so at any time thereafter. The ALJ also found that since 1955 the district had taken actions which intentionally maintained or increased segregation to students throughout the district. With regard to the Department's third allegation concerning failure to pro-

- .

-

"4. ri■-;::`"----

'A

2

vide equal educational services, the ALJ found for the district. Both the district and the Department have filed ap p eals from the AUJ's Initial Decision with the HEW Reviewing Authority (Civil Rights).

The facts which supported the ALJ's finding of noncompliance with Title VI also supported the findings of ineligibility under ESAA set forth in the letters of August 12, 1977 and September 14, 1977. These facts ,-stablished a violation of Section 185.43(d) of the regulation.

Section 185.44(f) of the regulation provides that, when a district is found in violation of Section 185.43(d), it must submit the following information with its application for a waiver of ineligibility:

. .evidence that the practice, policy or

procedure prohibited by Section 185.43(d)

has ceased to exist or occur and that the

effects of such practice, policy, or pro-

(0,

cedure have been remedied or eliminated.

A new desegregation plan ("Interim Plan C"), approved by the
district's Board of Directors on arch 20,1922, and implemented
at the beginning of the 1977-78 school year, was submitted with

the district's waiver application. "Interim Plan C" had been

submitted earlier to attain compliance with Title VI.

In a letter dated February 22, 1978, OCR notified the district that "Interim Plan C" would be adequate to ensure compliance with Title VI if it were modified to include the following provisions:

1. Effective September, 1978, nonminority students enrolled at Lincoln High School will be no less than 15 percent nor more than 30 percent of the student body. The district may assign students to Lincoln using the "magnet" school device or such other plan or combination of plans selected by the Board, provided only that the target percentage of nonminority students is achieved.

2. Beginning with the 1978-79 school year all site selections for new educational programs offered at the elementary level will be made to promote desegregation of the overwhelmingly or entirely black schools.

3
3. Effective the 1978-79 school year, the policy or practice of permitting senior high school students a transfer option solely because of their senior status shall be discontinued.
4. The policies and practices controlling faculty assignments, recorded in the school district's 1973 ESAA waiver assurance, shall be fully operative. The district shall establish admirtistrative procedures to obtain compliance with such policies at each school of the district.
5. Effective 1978-79, the district will implement and maintain procedures which ensure that each health and child care transfer is not used as a device for inhibiting desegregation.
6. The district will continue nondiscriminatory optional zones and ensure that all students assigned within the optional zones remain in that school assignment unless application for transfer is made through the district.'s intradistrict transfer procedure.
On February 23, 1978, the district's Board of Directors adopted a resoluton approving the modification of "Interim Plan C" set out in OCR's letter of February 22, 1978.
As modified, the district's desegregation plan has been accepted by OCR as adequate to remedy the Title VI violations found by the ALJ. The modified plan also meets the requirements of the Emergency School Aid Act and Section 185.44(f) of the regulation.
Based upon the foregoing, we have concluded that the district has met the requirements of the Emergency School Aid Act. The waiver of ineligibility should be granted on the basis of the assurances and information in the district's ESAA application for waiver as well as the assurances in the district's ESAA application (as required by 45 CFR 185.13(1)(5)) that the district will comply with the terms of the agreement upon which this waiver is based.
David S. Tatel

 
 DESEGREGATION MONTTORING COMMITTEE 1 10•4Th BOOR • 1211 Mean anew KANSAS CITY. wissooti wee
111647211110.3 FAA 4144424004
July 9, 1997

The Honorable Judge Dean Whipple U.S. District Court for the Western District of Missouri 811 Grand Ave., Room 813
Kansas City, MO 84108

Dear Judge MIRA:
The Desegregation Monitoring Committee (DMC) met on Tuesday, July 8, 1997, rotative to the issue of communicating to the Cost, and its recommendation to the Court on the value and utility of external continuing oversight and monitoring of tie desegregation cue In the Kansas City, Missouri School District (KCM130 or District). Members In attendance were as noted below

Jeff Day Carl DiCapo Chuck Jams Javier Penn Mike Sancho Eugene Eubanks

Cci21=121S
Budget Desegregation Education Commotion Education General Chair

The Committee, In a unenitr•ou• action, voted to communicate to the Court and the Parties the following:
The DMC behaves there is s continuing need for strong and vigorous oversight end monitoring by an external body(ies) with demonstrated understanding and knowledge in budgeting and educational programs. The body should exercise authority over administration in CUrrtcula, Instruction, and Menial aspects of the KCM8C1 because the present administration has not impiemented nor deveicoect adecp.iete plans, procedures, and strategies to operate the Mit:riot in an efficient and effective manner. Mao, the body should

Page Two The Honorable Judge Whipple July 9, 1997
Construct a structure that insurer regular and systematic assessment relsUve to the extent of implementation of desegregation programs, and that subsequent evaluation of educations! programs and personnel are occuring In the District. Among the continued shortcomings end deficiencies identified by the MAC are the folkming:
1) The District personnel presently at the senior level have not adequately articulated nor demonstrated the ability to lend purpose and vision to the mission of educating the students in the KCMSD;
2) The central levei administrative staffing has vacant leadership positions In testing and evaluation, instruction area, and management Information systems that most negatively impacts on the District relative to the implementation of sound educational prectioet,
3) The decision-malting process relative tO curricula end instructional improvement has not provided adequate support and other resources to key instructional perscrinel charged with designing and implementing needed Instructions! fond Curricula Improvements;
4) The administration has not sufficiently provided for needed meaningful oorrrnunity and school-based Involvement relative to school dosing* or elimination of magnet themes;
5) The needed professional development plan fur the 1W-se school year has been delegated to the school-based level without providing adequate training and preparation for site.based managernent
6) Recommendations from the administration relative to the appointment of key leadership positions at the building•level We not being determined by accepted educational standards of competency commitment, and prior effective performance;
7) The administration continues to attempt to or make decisions relative to contracting with software vendors based on lase than ctioctive criteria. In addition, the administration continues to attempt to use vendors *lose performmanoe in the past have Peen Clearly inadequate.

Page Three The Honorable Judge Whipple July 9, 1997
It is concluded by the DAAC, by unanimous action, that the above-noted numerated shortcomings (not in any way intended to be an inclusive list), plus an administration that has not yet demonstrated the ability to aggressively and effectively put in place an operations' plan for effective day-to-day operation of the District, necessitates the appointment of a strong, independent person(s) with adequate resources and authority to work with the Court to present a meaningful desegregation plan, and implement the plan so the desegregation plan and relief to Plaintiffs children becomes a reality in the KCPA8D.
It has also come to the attention of the DMC that the Issue of the cost of the DMC has been brought to the attention of the Court. The expenditures for the DMC for FY98 we 8237,089.25, and the anticipated expenditures for the DMC for FY97 are approximately $220,000. This budget provides for 3,8 staff persons, office, expenses, travel, and hourly compensation to the committee. The DMC further calls to the attention of the Court that Judge Clark, on all occasions *ere Parties have contested actions or behavior of the WC, has complimented the DMC on its behavior and performance as an arm of the Court, in assisting the Court in this desegregation case. The record will show that actions of the DMC ware insturental in major savings, far exceeding the cost of the DMC, In desegregation areas such as purchasing, oonstruCtiOn, duplicative and unneeded central administrative Staff, software and hardware expenditure., maintenance, end transportation, etc.
Thank you for your attention to our communication.
Respectfully submitted,

EEE : sae
cc: DMC Parties

Eugene E. Eubanks, Chair Desegregation Monitoring Committee

 
 ammi.crEgiall1112.11iriaini
January 3, 1996
Dr. Larry Ramsey, Acting Superintendent Kansas City, Missouri School District 1211 McGee Kansas City, Missouri 64106
Dear Dr. Ramsey:
This is to express my grave concerns relative to your hiring practices and some of your comments during the December 27, 1995 Special Board Meeting. As I recall, you stated that "73.9% of our students come from poor families and probably aren't going to college anyway..." Such a statement is narrow-minded, short-sighted, unenlightened, prejudiced, and in light of the demographics of this school district, racist. For a person holding a leadership position in this district, even on a temporary basis, to make such a statement is appalling and unacceptable. It has become clear to me that you not only lack the skills and credentials required to provide the necessary instructional leadership, but that you harbor racial attitudes that are inimical to the optimum educational development of minority students. I do not see how African-American students can receive equal educational opportunities under your leadership.
Furthermore, your personnel practices and attitudes are disturbing. As Director of Planning and subsequently Associate Superintendent for Planning, Facilities and CIP, you basically operated a segregated department. It appears that you failed to hire or place any African-Americans into any significant position and that the research, evaluation and planning staffs, which are critical in the development of desegregation and quality educational programs, are all white. As a result of your racial attitudes and personnel practices, the people with primary responsibility for developing a desegregation plan to remedy the effects of discriminatory conduct on African-American school children, are all white. When recently confronted with your invidious record you replied that you "couldn't find any qualified blacks", ironically overlooking the fact that you currently hold a position for which you lack the state required qualifications and credentials.

2
While your remarks, attitudes and practices may be acceptable to some of my colleagues, they are intolerable and unacceptable to me.
Sincere
Edwar JY ewsome
cc: Members of the Board Dr. Eugene Eubanks, Chairman Desegregation Monitoring Committee

 
 Su' onntemount ROBERT WHEELER

cncerson/Arown, -

ac:Ion

THE SC1-4001_ DISTRICT OF KANSAS CITY, MISSOURI

1211 McG EE STREET Phone: 616 / 221 - 7565

KANSAS CITY. MISSOURI 64106
February 27, 1978

Air Express to DST - Cy to Tatel, Hamlin,Brawn, August, Cioffi, Hend•, Stu,
11,1

Bo•r0 of D ∎ rectors

SAMUEL J. CARPENTER Prir•io.,

J OYCE STARK v.c• Pres ∎ o•nt

MAURICE E. DWYER. ir••161/1,1

J AMES P BONADONN^ FLETCHER DANIELS - -

-

KAREN J. LEWIS

DONALD W MOCKER

MAR Y ROBERSON

EDWARD W. SDAGGS

GLEN L. HANKS. S•cr•tary

Mr. David Tatel, Director Office for Civil Rights De p artment of Health, Education and Welfare HEW North, Room 5027 330 Independence Avenue Washington, D. V. 20201
Dear Mr. Tate]:
The Board of Education of the School District of Kansas City, Missouri has agreed to the modifications of Plan 6-C as set out in your letter of February 22, 1978.
A certified copy of the Resolution passed by the Board of Education on February 23, 1978 is attached.
Sincerely,

SJC:bb attachment

amuel J. reenter
President
Board of Education

AN EQUAL OPPORTUNITY EMPLOYER M/F

a75_20 CLERK 'U.S. DISTRICT COURT

Case N

77-0420-CV-w--4

• ir

The Board of Directors of the School District of Kansas City,

•

Missouri, met in a SPECIAL MEETING at 3:45 P.m., Thursday,

- February 23, 1178, in the Board Room, Board of Education Building,

1211 McGee, with the following members Present: Mr. Samuel J.

Carpenter, President; Mx. James P. Bonadonna; Mr. Fletcher Daniels;

Mrs. Karen K. Lew-is; Dr. Donald W. Mocker; Mrs. Mary Roberson; Dr.

Edward W. Scaggs; Mrs. Jo y ce Stark, being all the members of the

Board except Mr. Maurice E. Dwyer, who was absent.

Mr. Samuel J. Carpenter, President, in the Chair.

Among other proceedings, the following was had and made:

Mr. Daniels moved that the Board a pprove the following Resolution a greeing to certain modifications in the plan adopted by the Board on March 20, 1a77:

RESOLUTION

BE IT RESOLVED, that inasmuch as Office of Civil Rights Director, David S. Tatel, has indicated b y letter of February 22, 1973, that the Office of Civil Rights shall a pp rove the Title VI compliance status of the District if certain modifications are made in the p lan ado pted by the Board of Education on March 20, 1977, the Board hereby modifies the March 20, 1977 plan to include the
following provisions:

1. Effective Se p tember, 1978, non-minority students enrolled at Lincoln High School will be no less than 15% nor more tliPn 30% of the student body. The District may assign
. students to Lincoln using the "magnet" school device or such other plan or combination of p lans selected by the Board provided only that the target percentage of nonminority students is achieved.

2. Beginning with the 1978-79 school year all site selections for new educational programs offered at the elementary-level will be made to promote desegre g ation of the overwhelmingly or entirely black schools.

3. Effective with_the 1978-79 school year the policy or practice
of permitting senior high school students a transfer option solely because of their senior status shall be discontinued.

4. The policies and practices controlling faculty assignments, recorded in the School District's 1973 ESAA waiver assurance, shall be fully operative; the District shall establish administrative procedures to obtain com p liance with such policies
at each school of the District.

5. Effective 1978-79, the District will imp lement and maintain procedures which assure that each health and child care transfer is-not used as a device for inhibiting desegregation.

11;

41r

' 6. Th=. District will continue non-discriminatory optional zones and assure that all students assicned within the
optional zones remain in that school assicnment unless
app lication for transfer is made thr2ugh the District's intra district transfer procedure.

THEREFORE, BE IT RESOLVED, that the Board go on record modifying Plan 6C to cover the reauiraments in the letter from Director David Tate..

•

The motion was seconded by Dr. Sca2s,gs and was a pproved by the

foilowing vote:

Ayes: Mr. Bonadonna, Mr. Car p enter, Mr. Daniels, Mrs. Lewis, .Dr. Scaugs, Mrs. Stark
Noes: Dr. Mocker, Mrs. Roberson
Absent: Mr. Dwyer

THIS IS TO CERTIFY that the above and fore g oin g is a true and correct co py of an excer p t taken from the minutes of the S p ecial Meeting of the Board of Directors of the School District of Kansas City, Missouri held February 23, 1978.
Mildred U. LaBouff, Assislan to the Secretary Board of Directors THE SCHOOL DISTRICT OF KANSAS CITY, MISSOUR2

 
 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
efense eund 99 Hudson Street, New York, N.Y. 10013•(212) 219-1900

June 22, 1984

Arthur A 5:.:7,06n-4on, Esq.

lierip.on'6,-McKay

1`430 Commerce Tower

911 Main SU'ptt.

Kansas

6410

Dear:

:

"decNom ovpi ktheast/;-I,ththinougsghatr:e2s1lowwoinugldddowronpaynodu

I am beginning a note to say a

to few

things(thatzgot lost in the hustle and bustle of the frenetic

schedule /OA which we operated during the trial. When I left

Kansas City a few weeks ago,J-Thad no idea that I would not

be returning for the remainder of the trial, so I really did

not say my-!.'goodbyes" to 'anyone.

My feelings.,-aboutthe/experience are mixed. As you know, being away fr0Whome ,for such--extended periods of time takes
its toll on manyfront6. AddAq that the unpleasant experience of trying a„_pase befOreahostile judge and one cannot
help but hope that {theexperience will Dever be repeated again. Nevertheleasi2 have a: lot)of./po -Sitive memories of my Kansas City experiencawhich411,1Vin time, eclipse the negative ones. Above a.114 I enjoye&workingith you and the others in your firm. Given the-'..tremendous pressure everyone
was under, I think that_therelativeAaag with which everyone worked together is a testament to-:the wonderful personalities of each person involved. 'JCertainlyiTthere\were moments of "testiness," but that merely-loPt„things/Jhteresting.)

You, in particular, went well out i-Ofy61.1r- way to make things comfortable for those of usjr00;IDE<;a7:am grateful for the dinners, guided tours, theatre apd<dbncert events, rsohdaekoe,sbaansdkectobuanlltlgeassmoetsh,esrotchiainl gfus,nbcit4i pannadapMpaaitT_itmrthipats,yomuilk did for us. I often marvelled at your ability(to,maintain
such a high degree of energy over a sustained period of time.

Contributions are deductible for U.S. income tax purposes
The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it was founded by it and shares its commitment to equal rights. LDF has had for over 25 years a separate Board, program, staff, office and budget.

Arthur A. Benson, Esq. June 22, 1984 Page 2
I'Shall value our friendship in the years to come.
Regards to Karen.
Your friend and colleague,
//zet-6/W
Theodore M. Shaw
TMS-t(deh ,„ ;•V■ t,
/ /
eff 07.
I

 
 Kansas City, Missouri, - Public Schools Department of Pupil Services September 21, 1956
Report on Progress of Desegregation

Elementary Schools
Allen

% Negro
9/55
22.9

Ashland

3.3

Askew

0

Attucks

100%

Bancroft

0

Banneker

95%

•,.

Blenheim

0

i

Border Star

0

Bristol

0

Bryant

0

Carlisle

0

Carver

99.3

Chick

0

Clay

0

Cook

0

DeLano

6.0

Douglass

99.6

Dunbar

100%

0 Fairmount 0

Faxon

.7

Franklin

1.5

Garfield

0

% Negro 2/56
23.5 4.2
0 100%
0 95%
0 0 0 0 0
99%
0
0 0
5.9 99.5
100%
0
.9 1.4
0

Grades and Kindergarten

White Negro .

Total

180

64

244

789

85

874

633

0

633

0

401

401

603

0

603

8

401

409

635

0

635

819

0

819

855

0

855

558

0

558

283

0

283

3

530

533

410

0

410

446

0

446

742

0

742

138

9

147

3

234

237

0

253

253

, 552 0 552

554

3

557

522

2

524

701

2

. 703

% Negro 9/21/56
26.2
9.8
0
100% 0
98%
0 0
0 0
99.4%
0
0
0
6% 98.7
100%
.5
.4
.3

% Changes Since
9/55 / 3.3
71 6.5
0
0
0
/ 3%
0
0 0
0 0
71 .1
0
0 0
0 - .9%
0
0
- .2
– 1.1
.3

Page -3-

Elementary Schools

% Negro
9/55

Mercy Hospital

.5

Meservey

0

Moore, Milton

2.2

Mt.Washington

0

Nelson

Nichols

o

Norman Pershing
Phillips
Pinkerton Rollins Ruhi

.7
o
100%
0 0
o

Scarritt

.1

Seven Oaks

0

Spofford Home

0

Stark

0

Sugar Creek

0

Sumner Swinney Switzer

97.9
0
18.7

Thacher

.2

Troost

0

Twain, Mark

0

Volker, Wm

0

Washington,B.T. 100%

Wheatley,P. White,E.C.

94.8 2.1

% Negro
2/56 - .8
0 6.1 0
0 .7
0
100%
0
.5 0
.1 1.0
0
0 0
96.9
0
18.0 .2
0
0 0
100%
96.4 1

Grades and Kindergarten

White Negro

Total

42

3 -

45

720

0

720

559

63

622

540

0

540

287

0

287

736

0

736

302

5

307

540

540

0

735

735

395

0

395

335

0

335

433

0

433

636

0

636

598

11

609

14

0

14

177

0

177

252

0

252

31

479

510

464

0

464

676

160

836

627

1

628

445

0

445

540

0

540

322

0

322

0

733

733

24

787

811

159

2

161

% Negro
9/21/56 6.7
0
10.1 0
0
0 1.6 0 100% 0 0 0
0 1.8
0
0
0
93.9
0
19.1
.2
0
0
0 100%
97.0 1.2

% Changes Since
9/55 7t 6.2
0
/ 7.9 0
0
0 / .9
0 o 0
D.
0
,. 1 / 1.8
0 0
0
- 4.0
0
/ .4 0
0 0
0
/ 2.2 .9

Secondary Schools

% Negro 2/10/56

Central Sr.

10.7

East

6.1

Jackson Co. Parental School 100%

Lincoln High McCune Home

99.8 0

Manual

56.7

Mercy Hospital

0

Northeast High

.2

Paseo

1.5

Southeast

0

Southwest

0

Van Horn

0

Westport

2.2

Central Jr. Lincoln Jr. Northeast Jr. West Jr.

29.8 99.2 0 15.0

9/21/56

Enrollment

White

Negro

Total

1476 1587
-0 1
18 391
9 1376 1668 1800 2073 1218 1734

303

1779

100

1687

.

24

24

742

743

0

18

988

1379

3

12

1

1377

41

1709

0

1800

1

2074

0

1218

46

1780

844 3
1616 519

608

1452

935

938

1

1617

114

633

Page -5-

%Negro 9/21/56
17.0 5.9
100% 99.8 0 71.6 25 , .1 2.4 0 .1 0 2.6

% Change Since 2/10/56

,L

6.3

- .2

0 0 0

-I- 14.9

# 25

- .1

r/

.9

0
/ .1

0

7Z

.4

41.9 99.7
.6 18

7L 12.1
/ .5
/ .6
/3

•11111iM

Kansas City, Missouri, Public Schools Department of Pupil Services
September 18, 1957
Report on Progress of Desegregation

Elementary Schools Allen Ashland Askew Attucks Bancroft Banneker Blenheim Border Star Bristol Bryant Carlisle Carver Chick Clay Cook DeLano Douglass Dunbar Fairmount Faxon

% Negro
9/55 22.9 3.3
0 100%
0
95
0
0 0 0
99.3
0 0 0
6.0 99.6
100% 0
.7

% Negro 2/56 23.5
4.2
0 100%
0
95
0 0 0 0 0
99
0 0 0
5.9 99.5
100% 0
.9

Enrollment

Grades and Kindergarten

Zeptember 18, 1957

% Negro White Negro Total % Negro

9/56

9/57

26.2

220

72

292 24.6

9.8

735

111

846 13.1

0

661

0

661

0

100%

0

343

343 100%

0

616

0

616

0

98

11

411

422 97.4

0

645

0

645

0

01

852

C

852

0

0

882

0

882

0

0

638

0

638

0

0

259

0

259

0

99.4

6

459

465

98.7

0

438

0

438

0

0

418

0

418

0

0

720

0

720

0

6

108

10

118

8.5

98.7

315

196

511 38.3

100%

0

233

233 100%

0

574

0

574

0

.5

578

2

580

.3

%Changes Since
9/55
+ 1.7 + 9.8
0 0 0 + 2.4 0 0
0 0 0
.6 0 0 0
+ 2.5 - 61.3
0 0
.4

Elementary Schools

% Negro % Ne gro

9/55

2/56

Manchester

0

0

Mann

0

.3

Marlborough

0

0

Martin

0

0

Mercy Hospital .5

.8

Meservey

0

0

Moore

2.2

6.1

Mt.Washington 0

0

Nelson

0

0

Nichols

0

0

Norman

.7

.7

Pershing

0

0

Phillips

100%

100%

Pinkerton

0

0

Rock Creek E. No Report

Rock Creek N. No Report

Rock Creek S. No Report

Rock Creek W. No Report

Rollins

0

.5

Ruhl

0

0

Scarritt

.1

.1

Savun Oaks

0

1.0

Spofford Home 0

0

Stark

0

0

Sugar Creek

8

0

Enrollmant

Page -3-

Grades and Kindergarten

September 18, 1957

%Changes

% Negro White Negro Total % Negro Since

9/56

9/57

9/55

0

399

1

400

.3 + .3

1.9 653

101

754

13.3 +13.3

0

567

0

567

0

0

0

'242

0

242

0

0

6.7

35

5

40

12.5 +12

0

834

2

836

.2 + .2

10.1 468

102

570

17.8 +15.6

0

541

0

541

0

0

0

309

0

309

0

0

0

683

0

683

0

0

1.6 299

3

302

1.0 + .3

0

541

2

543

.4 + .4

100%

0

717

717 100%

0

0

407

0

407

0

0

522

0

522

0

686

0

686

0

692

0

692

0

335

0

308

0

335

2

310

0 .6 + .6

0

462

0

462

0

0

0

595

1.8 630

0

595

49

679

0

- .1

7.2 + 7,2

0

13

0

13

0

0

,0

192

0

192

0

0

0

287

0

287

0

0

4
11

Secondary

% Negro
2/56

Central

10.7

Delano

0

East

6.1

Jackson Co. Parental

100%

Lincoln McCune Home Manual

99.8 0 56.7

Mercy Hospital 0

Northeast

.2

Paseo

1.5

Southeast

0

Southwest

0

Spofford

0

Van Horn

0

Westport

2.2

% Negro
9/56 17.0
0
5,9
100%
99.8
0
71,6
25 .1
2.4 0
.1 0 0 2.6

Enrollment September 18, 1957 White Negro Total

1317 519

1836

19

1

20

166a 103

1766

Page -5-

% Negro
9/57 28.2
.5 5..8

%Changes Since 2/56
+ 17.5
+ .5
- ,n

0
0
28
134
1 1705
1711
1899 2123
2 1289 1582

23
945
0
1016
1 0
45
1 0 0 0 40

23
945
28 1150
2 1705 1756 1900 2123
2 1289 1622

100%
100%
0 88.3 50
0 2.6
.05
0 0 0 2.5

0 + .2
0 + 31.6 + 50 + .2 + 1.1
+ .05
0 0 0
+3

Central Jr. Lincoln Jr. Northeast Jr. West Jr.

29.8 99.2
0 15

41.9
99.7 .6
18

606 835

3 848

1510

3

590

87

1441 851 1513
677

57.9
99.6 .2
12.9

Junior College

7.7

1048

92

1140

8.1

.4

Because only elementary school figures were collected in September, 1955, secondary school comparisons are based on February 1956. Junior College comparison is based on September 1956.

 
 eo•

•

Cl.

Kansas City School District
Awareness & Attitudes Survey
PLAINTIFF'S EXHIBIT
1t P . Ex . 20

Kansas City Magnet School District January 1996

III. Summary

ince the last study conducted in September 1994, familiarity with magnet school 0-p"Pr-orgic 'vraamtres"e :phaaa rsednsetsc,e raelatd sheoduagmh othnegc"hDainsgtreisctaNreonno-Mt sitnaotirsittiyc"alplyarseingtnsifaincdanitnactreaa9se0d%almevoenlg
of confidence.

• Compared to the "District Minority" group, a much larger proportion of "District 'Non-Minority",tarentS:nre currently "Very Familiar" with magnet school programs.

• "Positive" response tOihe magnet school concept has decreased significantly since

1994.

/
• Not surprisingly,, parents of children in the magnet school district are much more likely

to see a "Great Need" for magnet school programs than are parents of children in

"Private" schools.

P''

,,

•

• Compared to past studies, a significantly greater proportion of parents of children in

private schools have given at least some consideration to magnet schools.

Approximately half of the "Private' school parents reported having given "Serious" or

"Slight" consideration to enrolling their children in magnet schools.

• Among all three respondent groups, , uality of the teachers" and "Safety at school facilities" were the most important factors the evaluation and selection of a magnet school.
• For "District Non-Minority" and "Private school" parents, "A high school that would
offer a full range of courses without aMagnet theme" was the most attractive feature for a school of the six (6) features tested. "District Minority" parents were most attracted to "A secondary school with full range of courses and a focus that includes African culture, traditions, and history."

• Over 80% of all three respondent groups were either "Very Interested" or t!Somewhat Interested' in schools where 50% of the available seats are reserved fo;children living in close proximity.
• Over half of the "Private" school parents interviewed (58.6%y reported that their
oldest child commutes to school in 10 minutes or less. On the other hand, only 27 2% of the "District Non-Minority" parents and 19.6% of the "District Minority'' parents indicated that their oldest child commutes to school in 10ttk minutes or less/ •

Flaspohler Rose Quantitative Research, Inc.

21

■
111
■ ■

ea' Kansas City Magnet School District
January 1996

A2) Data Tables

4.

The following tables display comparable results from this year's study with those from. 1994, 1992, and 1989.

Familiarity with KCMSD Programs

District NonMinority, , %,,k Private

1996

70.4%

.4;4'29.1%

,ok Very

1994

, 81.8%

11.3%

familiar

1992

67.0% ''.,

16.0%

1989

-54.0%

14.0%

1996

20.4% .,.,

51.7%

Somewhat 1994

16.9%

58.7%

familiar

1992

28.0%

57.0%

1989

36.0%

49.0%

Not very familiar

1996 1994 1992 k 1989 1996

2.4% 1.3% 5.0% 10.0% 6.3% -

12.3% 22.0% 0s 17.0% 25.0% 6.9°/0

Not at all

1994

0.0%

8.0%

familiar

1992

0

9.0%

1989

0.0%

10.0%

1996

0.5%

0.0%

Don't Know / 1994

0.0%

0.0%

Reff used

1992

0.0%

1989

0.0%

2.0% 0.0%

Need for Specialized Curriculum

District Non-

Minority

1996

58.3%

Great Need

1994

62.3%

1992 1989

67.0% 79.0%

1996

25.7%

Some Need

1994

33.8%

1992

22.0%

1989

13.0%

1996

7.8%

Little Need

1994

1.3%

1992

9.0%

1989

5.0%

,,,No Need

1996 1994

5.8% 2.6%

1992 1989

0.0% 2.0%

,:. /Dttin Know / Reffused

1996 1994 1992 1989

2.4% 0.0% 1.0% 1.0%

Private
27.1% 27.3% 28.0% 17.0% 43.3% 47.3% 32.0% 44.0% 13.8% 10.7% 24.0% 25.0% 11.8% 14.0% 10.0% 14.0% 3.9% 0.7% 6.0% 0.0%

Consideration Of Sending Children To Magnet Schools

District NonMinority

Private

1996

Seriously

1994

N/A

Considered

1992

N/A

1989

N/A

1996

Slightly

1994

N/A

Considered

1992

N/A

1989

N/A

26.1% 14.0% 16.0% 12.0% 24.6% 25.3% 17.0% 21.0%

1996

Never

1994

N/A

Considered

1992

N/A

1989

N/A

49.3% 60.7% 66.0% 67.0%

1996

Don't Know / 1994

N/A

Reffused

1992

N/A

1989 _

N/A

0.0% 1.0% 0.0%

Children Have Expressed Interest In Magnet Schools

District Now Minority

Private

1996

N/A

Yes

1994

N/A

1992

N/A

1989

N/A

15.8% 9.3% 9.0% 8.0%

1996

No

1994

1992

1989

1996

Don't Know / 1994

Reffused

1992

1989

N/A

82.3%

N/A

90.0%

N/A

, 91.0%

N/A

92.0%

N/A

2.0%

N/A

'''''''st-.00%

N/A

. ., 0.0%

NIA

0.0% 1

HaspUhler Rose Quantitative Research, Inc.

27

Kansas City Magnet School District January 1996

Importance Of Evaluation & Selection Factors When Considering A Magnet School

Small a ss Size
School Neighborhoo School Atmosphere

1996 .1994 ,„,1992

District Non-Minority

Private

Very Somewhat Not

Very Somewhat Not

Important Important Important Important Important Important

67.5% 26.2% 3.9% 74.9% 21.7% 2.5%

79.2% 18.2% 2.6% 81.3% 17.3% 0.7%

68.0% 26.0% 5.0% 77.0% 20.0% 3.0%

1996 1994
,e1992 ,
1989
„,01996 1994 1992

62.1% 35.1% £''-42.0% 28.0%,
83.5% 85.7% 75.0%

25.2% 39.0% 40.0% 49.0%
13.1% 13.0% 20.0%

9.2% 24.7% 18.0% 21.0%
1.0% 0.0% 4.0%

61.1% 66.7% 56.0% 47.0%
82.3% 85.3% 83.0%

32.0% 28.7% 32.0% 38.0%
14.8% 12.7% 13.0%

5.9% 4.7% 11.0% 13.0%
2.0% 0.7% 3.0%

Quality Of Teachers Student/Staff Interaction Quality Of Facilities

:•]:„ 1996 1994 1992 1989
1996 1994 1992

93.2% ''''' 4,4% 96.1% 3.9% 97.0% 3.0% 61.0% 16.0%
85.4% :'r' 76.6% 23,4%
1 93.0% 5:0%

1.0%
0.0% 23.0% 1.5% 0.0%
1.0%N,.,

96.1% 96.0% 96.0% 69.0%
84.2% 80.7% 83.0%

1996 80.1% 6,1994 „„67.1%
1992" 58,0% 1900„,„, ,.: , 46.0%

16.0% Z.4%. ;66.2% 41.6% 13%''' 49.3% 37.0% 5.0% 47.0% 33:0% ,,.,6 20.0% 35.0%

2.5% 2.7% 2.0% 16.0% 13.8% 18.0% 11.0%
37.9% 42.7% 43.0% 43.0%

1.0% 0.7% 1.0% 14.0% 1.5% 0.7% 4.0%
4.9% 7.3% 9.0% 22.0%

Learning By Doing Environment

1994 90.9% „,,iit%

74.0% 22.7% 2.7%

1992 0:83.0% 13.0% 4.0% 76.0% 20.0% 2.0%

Before/After School Programs @ No Cost
Special Theme Related Facilities
Academic Achievement Level Of Students
Safety At School Facilities
Interaction With Students Of Other Races/Cultures

1996 1994 _ 1992 1989
1996 1994 1992 1989
1996 1994 1992 1989
1996 1994 1992 1989
1996 1994 1992 1989

"k60.7% 24.3% 50:7% 336% 53.0%:126.6% 75.0% ,i:', 7.0Pk„
71.4% '27.3% • 61.0% 32.0% 56.0% 21.0% 76.7% 18.0% 74.0% - 23.4% 65.0% 25.0% 28.0% 29.0% 92.2% 6.3% 93.5% 6.5°/0 86.0% 8.0% 51.0% 25.0% 84.0% 10.7% 75.3% 22.1% 71.0% 24.0% 77.0% 20.0%

11.7% aao% 14.314,0 -''' 38.6% 2111% ;,60.0% 18.0% 34.0%

38.9% 29.6% 44.0% e".,N17.3% 37.0% 31.0% 41.0% ,,",:' 25.0%

1.3% 401% 7.0% „, '' 35.0%``` 23.0% 0.0%
1.9%„ 84.2% 1.3%' 75.3% 9.0% "68.0%\ 36.0% 37.0%
0.0% 95.6% 0 0% •C- 943% 7.0% ''69a0% 21.0% 61.0%
4.4% 70.9% 2.6% 47.3% 4.0% 57.0% 2.0% _ 52.0%

44.7%
40.0% 37.0%

14.0% 22.0% ,,,,'' 44.0%

13.8% ''" 1.5% 21.3% Z7% 24.0% „,:'' 7.0% 38.0% 22.0%

3.0% 1.0% 3.3% In

4.0%

2.0%-.:.-':

28.0% ,„:,410.0%

27.1% 1.5%,,'' 46.7%„„:06.3% 36.0% ' 7.0% .:''' 44.0% 1.0%

Table Does Not Include Don't Know/Refused responses. Therefore, the percentages may ;not sum to 100%

FlaspOhler Rose Quantitative Research, Inc.

28

Igo'. 4".

Kansas City Magnet School District January 1996
A3) Current Survey Results
On the following pages are the results for all questions in the 1996 survey. The data tables break out the results in the following manner:
1. Overall All 613 Respondents;
2. Magnet Status: Non-Minority - 206 Non-Minority Respondents In The Magnet School District;
3. Magnet Status: Minority - 204 Minority Respondents In The Magnet School
•
District
4. District K-5 Non-Minority - 103 Non-Minority Respondents In The Magnet School District With Children In Grades K - 5
5. District K-5: Minority - 103 Minority Respondents In The Magnet School District With Children In Grades K - 5
6. District 6 - 12: Non-Minority - 103 Non-Minority Respondents In The Magnet School District With Children In Grades 6` - 12
7. District K-5: Non-Minority - 101 Minority Respondents In The Magnet School District With Children In Grades 6 - 12
8. Private - 203 Respondents With Children In Private Schools.

Flaspohler Rose Quantitative Research, Inc.

29

Q:Hello
Approximately how many children do you have in your household who attend school between kindergarten and twelfth grade?
One Two Three Four Five Six Seven or more

.11:11Ali1111

Overall Overall
Col %

Magnet Status

Enter list letter:

NonMinority

Minority

Dist. K-5, Dist.-K-5,

Non-

Minority

Minority

Dist. 6-12, NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Private Col %

30.7 39.5 18.1
8.0 3.3
.3 .2

29.1 45.6 15.5
7.8 1.9

23.5 36.3 20.6 12.3
5.9 1.0
.5

24.3 45.6 19.4
7.8 2.9

18.4 36.9, 24.31 1346
5.8 1.0

34.0 45.6 11.7
7.8 1.0

28.7 35.6 16.8 10.9
5.9 1.0 1.0

39.4 36.5 18.2
3.9 2.0

I=
Q1

In what grade is your oldest child? Kindergarten First Second Third Fourth Fifth Six Seventh Eight Ninth Tenth Eleventh Twelth OTHER

In what grade is your youngest child?

Pre-school

Kindergarten

First

Second

Third

4C

Fouurth

Fifth

Six

Seventh

.1'

Eight Ninth

_

A.,

Tenth

Eleevvennthh

Twelth

OTHER

In what grade is your child?

Kinder g arten

First

Second

Third

Fourth

Fifth

Six

Seventh

Eight

Ninth

,

Tenth

Eleventh

Twelth

OTHER

NM MI NIB NIB IM MI IN MC In-

Overall Overall
Col %

Magnet Status

Enter list letter:

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12, lionMinority

Dist. 6-12, Minority

Col %

Col %

Col W

Col %

Col %

Col %

Private Col %

.5 1.4 4.0 5.4 4.7 10.1 8.0 9.4 7.3 12.7 10.8 12.2 13.2
.

5.6

16.9

'

13.9

8.0

10.4

7.5

7.1

8.7

7.5

4.2

5.2

4

2.4

,

1.9

.5

.2

1.4 5.5 3.4 7.5 11.6 11.0 12.3 11.0 6.8 8..9 11.0 8.9
.7 '4'*,
2.1-' 19.9 15.8
8.2 12.3
7.5 7.5 8.2 5.5 4.8 2.7 1.4 2.1 1.4
.7

.6 2.6 5.1 8.3 4.5 12.2 7.7 12.2 7.1 12.8 8.3 10.9 7.7
10.1 19.9 14.1 12.2
8.3 7.7 7.1 7.1 6.4 1.9 2.6 1.9
.6

1.2

2.6 4.8

10.3 4

9.5

6.4

15.5

14.1

8.3

21.8

22.6

11.5

10.7

7.7-

9.5

5.1

1.2

5.1

9.5

3.2

3.6

5.1

1.2

5.1

2.4

1.3

3.8 28,2 23.1 11.5 12.8
7.7 9.0
1.3

14.3 34.5 16.7 11.9 11.9
8.3
1.2
1.2

1.3 1.3

10.3 17.6 17.6
8.8 14.7 17.6 13.2
10.3 7.4 4.4
11.8 7.4 5.9
17.6 11.8
8.8 5.9 2.9 4.4 1.5

...*,4•
4.2 15.3 13.9 16.7 13.9 22.2 13.9

.8
.8 4.1 1.6 5.7 4.9 2.4 3.3 19.5 16.3 15.4 25.2

5.6 2.8 11.1 12.5 4.2 6.9 15.3 13.9 13.9 2.8 5.6 4.2 1.4

4.1 9.8 11.4 2.4 10.6 7.3 6.5 11.4 11.4 6.5 11.4 4.1 3.3

4.8 6.9 8.0 1.6 5.3 2.7 7.4 7.4 7.4 13.3 13.8 12.8 8.0
.5

6.7 8.3 13.3 3.3 3.3 3.3 15.0 6.7 8.3 11.7 10.0 5.0 3.3 1.7

4.2 8.3 10.4 2.1 10.4 4.2 4.2 10.4 4.2 6.2 20.8 10.4 4.2

16.0 20.0 32.0
8.0 8.0 8.0 4.0
4.0

10.5 10.5 26.3
5.3 26.3 10.5
10.5

22.9 11.4 14.3 20.0 17.1
8.6 5.7

6.9
6.9 17.2 10.3 34.5 17.2
6.9

3.7 5.0 2.5
3.7 1.3 3.7 6.2 8.8 18.8 12.5 20.0 13.8

Q2
How familiar are you with the magnet school Programs of the Kansas City, MO School District? Would you say you are...
Very Familiar Somewhat Familiar Barely Familiar Not At All Familiar with these programs Don't know

Overall Overall
Col %

Magnet Status

Enter list letter:

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12,
NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Private Col %

44.9 36.7
9.8 8.5
.2

70.4 20.4
2.4 6.3
.5

..
34.8 38.2 14.7 12.3

71.8 17.5 -
2.9 7.8

20.4 45.6•,, 15 1

68.9 23.3
1.9 4.9 1.0

49.5 30.7 11.9
7.9

29.1 51,7,
12.3 6.9

q3&4

Overall Overall

In general, what is your respons school concept?
Positive Neutral Negative Don't know Refused

to the magnet

Do you think that there is -a Great, Some, Little, or No Need in the KC area for schools providing specialized curricula
Great need Some need Little need No need Don't know Refused

Col %
46.8 28.5 20.6
3.9 .2
47.6 32.0
9.3 8.2 2.8
.2

Magnet Status

Enter list letter:

NonMinority

Minority Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12,
NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Private Col %

61.2 19.4 16.0
2.9 .5

52.0 28.9 12.7
6.4

65.0 20.4 10.7
2.9 1.0

55.3 29.1
6.8
8.7

57.3 18.4 21.4
2.9

48.5 28.7 18.8
4.0

27.1 37.4 33.0
2.5

58.3 25.7
7.8 5.8 2.4

57.4 27.0
6.4 6.9 2.5

58.3 25.2
7.8 7.8 1.0

59.2 29.1
1.9 6.8 2.9

58.3 26.2
7.8 3.9 3.9

55.4 24.8 10.9
6.9 2.0

27.1 43.3 13.8 11.8
3.4 .5

q5&6

Overall

Have you Seriously, Slightly, or Never Considered enrolling one of your children in a magnet school?
Seriously considered Slightly considered Never considered
Has any of your children expressed an interest in attending a magnet school?
Yes No Don't know Refused

Overall Col %
26.1 24.6 49.3
15.8 82.3
1.5 .5

Magnet Status
.
Col %

Enter list letter:
Private
Col %

26.1 24.6 49.3
15.8 82.3
1.5 .5

4

Q7: In considering a magnet school, how important would each of the following be' , 1ST 7 FACTORS OF 13 TOTAL

Overall

Magnet Status

Enter list letter:

Overall

NonMinority

Minority Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12,
NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Col %

Academic achievement Very Important Somewhat Important Not At All Important Don't Know Refused

80.1 16.3
2.0 1.0
.7

76.7 18.0
1.9 1.9 1.5

79.4 17.2
2.5 1.0

80.6 13.6
1.9 1.9 1.9

87.4 10.7
1.9

72.8 22.3
1.9 1.9 1.0

71.3 23.8
3.0 2.0

Atmosphere Very Important Somewhat Important Not At All Important Don't Know Refused

81.7 15.5
1.6 .5 .7

83.5 13.1
1.0 1.5 1.0

79.4 18.6
2.0

90.3 5.8 1.0 1.0 1.9

S 92.2
6.8 1.0

76.7 20.4
1.0 1.9

66.3 30.7
3.0

Before/After Sch. Programs - No Cost Very Important Somewhat Important Not At All Important Don't Know Refused

54.0 28.2 15.7
1.5 .7

60.7 24.3 11.7
2.4 1.0

71.1 21.6
5.9 1.0
.5

59.2 19.4 14.6
4.9 1.9

79.6 11.7
6.8 1.9

62.1 29.1
8.7

62.4 31.7
5.0
1.0

Before/After Sch. Programs - Minimal Cost Very Important Somewhat Important Not At All Important Don't Know Refused

41.9 35.6 20.2
1.6 .7

47.1 33.0 16.0;.
2.4 1.5

49.5 38.2 10.3
2.0

55.3 20.4 17.5
3.9 2.9

63.1 25.2
9.7 1.9

38.8 45.6 14.6
1.0

35.6 51.5 10.9
2.0

Closeness to home Very Important Somewhat Important Not At All Important Don't Know Refused

60.5 29.7
9.1 .2 .5

60.2 30.1
8.3 .5
1.0

64.7 25.5
9.8

64.1 25.2
7.8 1.0 1.9

66.0 19.4 14.6

56.3 35.0
8.7

63.4 31.7
5.0

Closeness to work Very Important Somewhat Important Not At All Important Don't Know Refused

22.5 30.3 45.8
.8 .5

29.6 27.7 41.3
.5 1.0

26.5 32.8 38.7
2.0

35.9 20.4 40.8
1.0 1.9

32.0 27.2 38.8
1.9

23.3 35.0 41.7

20.8 38.6 38.6
2.0

Quality of facilities Very Important Somewhat Important Not At All Important Don't Know Refused

71.6 24.1
3.3 .7 .3

80.1 16.0
2.4 .5
1.0

78.4 18.6
2.5 .5

85.4 10.7
1.0 1.0 1.9

87.4 10.7
1.0 1.0

74.8 21.4
3.9

69.3 26.7
4.0

Private
Col %
84.2 13.8
1.5
.5
82.3 14.8
2.0
1.0
30.0 38.9 29.6
1.0 .5
29.1 35.5 34.5
.5 .5
56.7 33.5
9.4
.5
11.3 30.5 57.6
.5
56.2 37.9
4.9 1.0

aim mid

MI 11 - 111b Mb

-11111-1

MI MIL in

Q7: In considering a magnet school, how important would each of the following be? LAST 6 FACTORS OF 13 TOTAL

Overall Overall

Magnet Status

Enter list letter:

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12, NonMinority

Dist. 6-12, Minority

Quality of teachers Very Important Somewhat Important Not At All Important Don't Know Refused

Col %
93.8 4.7 .7 .3 .5

Col %
93.2 4.4 1.0 .5 1.0

Col %
92.2 7.4 .5

Col %
95.1 1.0 1.0 1.0 1.9

Col %
97.1 2.9

Col %
91.3 7.8 1.0

Col %
87.1 11.9
1.0

Safety Very Important Somewhat Important Not At All Important Don't Know Refused
School neighborhood Very Important Somewhat Important Not At All Important Don't Know Refused
School size Very Important Somewhat Important Not At All Important Don't Know Refused
Small class size Very Important Somewhat Important Not At All Important Don't Know Refused

92.5 5.9 1.0 .2 .5
62.0 28.9
7.3 1.0
.8
40.6 35.2 21.5
2.0 .7
68.4 26.3
3.6 1.3
.5

92.2 6.3
.5 1.0
62.1 25.2
9.2 1.5 1.9
46.6 30.6 18.4
2.9 1.5
67.5 26.2
3.9 1.5 1.0

89.7 8.3 2.0
62.7 29.4
6.9 1.0
42.6 31.9 23.0
2.5
62.7 30.9
4.4 2.0

95.1 1.9
1.0 1.9
67.0 18.4
8.7 2.9 2.9
56.3 22.3 16.5
2.9 1.9
76.7 17.5
2.9 1.0 1.9

96.1 2.9 1.0
77.7 13.6
7.8 1.0
45.6 28.2 24.3
1.9
73.8 21.4
3.9 1.0

89.3 10.7
57.3 32.0
9.7
1.0
36.9 38.8 20.4
2.9 1.0
58.3 35.0
4.9 1.9

83.2 13.9
3.0
47.5 45.5
5.9 1.0
39.6 35.6 21.8
3.0
51.5 40.6
5.0 3.0

Student/staff interaction Very Important Somewhat Important Not At All Important Don't Know Refused

83.8 13.4
1.5 .8 .5

85.4 10.7
1.5 1.5 1.0

81.9 15.7
1.5 1.0

88.3 6.8 1.9 1.0 1.9

89.3 7.8
1.9 1.0

82.5 14.6
1.0 1.9

74.3 23.8
1.0 1.0

Private
Col %
96.1 2.5 1.0
.5
95.6 3.0 1.0
.5
61.1 32.0
5.9 .5 .5
32.5 43.3 23.2
.5 .5
74.9 21.7
2.5 .5 .5
84.2 13.8
1.5
.5

q9a Overall Overall

How important is it to you that children learn to interact with children of other races and cultures?
Very Important Somewhat Important Not At All Important Don't know Refused

Col %
79.0 17.1
3.4 .3 .2

Magnet Status

Enter list letter:

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12, NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Private Col %

84.0 10.7
4.4 1.0

81.9 13.7
4.4

't
87.4 6.8 3.9 1.9

85.4 9.7 4.9

80.6 14.6
4.9

78.2 17.8
4.0

70.9 27.1
1.5
.5

q9b: How important is it to you that parents choose the schoolstheir children attend?

Overall

Magnet Status

Enter list letter:

Overall

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12,
NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Col %

Private Col %

Very Important Somewhat Important Not At All Important Don't Know
4

84.8% 10.5%
2.9% 1.8%

83.2% 12.4%
3.58 1.0%

86.6% 8.4% 2.2% 2.8%

88.8% 8.4% .9% 1.9%

87.9% 7.7% 2.2% 2.2%

76.8% 16.8%
6.3%

85.2% 9.1% 2.3% 3.4%

89.3% 9.6% .6% .6%

Q10 Overall Overall

A school where children attend from Kindergarten through 8th grade.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused
A secndry schl,incl.both middle & high schl students, in which all the students are of the same gender.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused
A school where students attend from 6th grade to 12th grade.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused
A middle school that would offer a full range of courses without a magnet theme.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused
A high school that would offer a full range of courses without a magnet theme.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused
A middle or high school with a full range of courses and 'a focus that includes African culture, traditions, and history
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

Col %
37.5 25.9 34.3
2.1 .2
21.9 25.8 49.3
2.9 .2
19.9 24.0 54.2
1.8 .2
45.0 32.8 18.9
2.9 .3
48.8 32.3 16.3
2.4 .2
36.1 36.5 25.0
2.1 .3

Magnet Status

, Enter list letter:

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12, NonMinority

Dist. 6-12, Minority

Col %

Col % '

Col %

Col %

Col %

Col %

Private Col %

36.9 20.9 40.3
1.9

.. 29.9
24.5 44.1
1.5

39.8 21.4 .=' 36.9
1.9

38.8 20.4 40.8

34.0 20.4 43.7
1.9

20.8 28.7 47.5
3.0

45:8 32.5 18.2
3.0 .5

20.9 17.0 58.7
3.4
25.7 20.9 51.5
1.9
43.7 26.7 25.2
3.9 .5
45.1 29.1 22.8
2.9

16.2 25.0 56.9
2.0

18.4 20.4 59.2
1.9

24.5 26.0 48.0
1.5

25.2 . 22.3
50.5 1.9

41.2 36.8 19.6
2.5
49.0 33.3 16.2
1.5

36.9 28.2 30.1
3.9 1.0
42.7 26.2 28.2
2.9

18.4 23.3 56.3
1.9
32.0 26.2 39.8
1.9
39.8 37.9 20.4
1.9
43.7 35.9 19.4
1.0

23.3 13.6 58.3
4.9
26.2 19.4 52.4
1.9
50.5 25.2 20.4
3.9
47.6 32.0 17.5
2.9

13.9 26.7 57.4
2.0
16.8 25.7 56.4
1.0
42.6 35.6 18.8
3.0
54.5 30.7 12.9
2.0

28.6 35.5 32.0
3.4 .5
9.4 25.1 63.1
2.0 .5
50.2 35.0 11.8
2.5 .5
52.2 34.5
9.9 3.0
.5

24.8 44.2 28.2
2.4 .5

73.5 23.0
2.5 1.0

22.3 40.8 32.0
3.9 1.0

82.5 14.6
1.9 1.0

27.2 47.6 24.3
1.0

64.4 31.7
3.0 1.0

9.9 42.4 44.3
3.0 .5

Please tell me if you would be very attracted, somewhat attracted, or not attracted to schools with these features.

Overall

Magnet Status

Enter list letter:

Overall

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12,: NonMinority

Dist. 6-12, Minority

Private

Col %

Col %

Col %

Col %

Col %

Col %

Col %

Col %

A school where children attend from Kindergarten through 8th grade.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

37.5 25.9 34.3
2.1 .2

36.9 20.9 40.3
1.9

29.9 24.5 44.1
1.5

39.8 21.4 36.9%
1.9 1,„

38.8 20.4 40.8

34.0 20.4 43.7
1.9

20.8 28.7 47.''''" '
3.0

45.8 32.5 18.2
3.0 .5

A secndry schl,incl.both middle & high schl students, in which all the students are of the same gender.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

21.9 25.8 49.3
2.9 .2

20.9 17.0 58.7
3.4

16.2 25.0 56.9
2.0

4.
18.4 20.4 59.2
1.9

18.4 23.3 56.3
1.9

23.3 13.6 58.3
4.9

13.9 26.7 57.4
2.0

28.6 35.5 32.0
3.4 .5

A school where students attend from 6th grade to 12th grade.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

19.9 24.0 54.2
1.8 .2

25.7 20.9 51.5
1.9

24.5 26.0 48.0
1.5

25.2 22.3 50.5
1.9

32.0 26.2 39.8
1.9

26.2 19.4 52.4
1.9

16.8 25.7 56.4
1.0

9.4 25.1 63.1
2.0 .5

A middle school that would offer a full range of courses without a magnet theme.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

45.0 32.8 18.9
2.9 .3

43.7 26.7 25.2
3.9 .5

41.2 36.8 19.6
2.5

36.9 28.2 30.1
3.9 1.0

39.8 37.9 20.4
1.9

50.5 25.2 20.4
3.9

42.6 35.6 18.8
3.0

50.2 35.0 11.8
2.5 .5

A high school that would offer a full range of courses without a magnet theme.
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

48.8 32.3 16.3
2.4 .2

45.1 29.1 22.8
2.9

49.0 33.3 16.2
1.5

42.7 26.2 28.2
2.9

43.7 35.9 19.4
1.0

47.6 32.0 17.5
2.9

54.5 30.7 12.9
2.0

52.2 34.5
9.9 3.0
.5

A middle or high school with a full range of courses and a focus that includes African_ culture, traditions, and history
Very Attracted Somewhat Attracted Not Attracted Don't Know Refused

36.1 36.5 25.0
2.1 .3

24.8 44.2 28.2
2.4 .5

73.5 23.0
2.5 1.0

22.3 40.8 32.0
3.9 1.0

82.5 14.6
1.9 1.0

27.2 47.6 24.3
1.0

64.4 31.7
3.0 1.0

9.9 42.4 44.3
3.0 .5

IL

RU U 11.1E- 111_

Mt it EC mi

as mu: 11.

Q11 Overall Overall

How interested would you be in schools in which up to 50% of the available seats are reserved for children who live close to the school
Very Interested Somewhat Interested Not At All Interested Don't Know Refused

Col %
56.6 27.9 12.9
2.4 .2

Magnet Status

Enter list letter:

NonMinority

Minority

Dist. K-5, Dist. K-5,

Non-

Minority

Minority

Dist. 6-12,
NonMinority

Dist. 6-12, Minority

Col %

Col %

Col %

Col %

Col %

Col %

Private Col %

66.5 18.4 12.1
2.9'

50.0

32.8

, 16.2

..

1.0

4'... 71.8 16.5
7.8 3.9

43.7 36.9 18.4
1.0

61.2 20.4 16.5
1.9

N
56.4', 28.7 13.9
1.0

53.2 32.5 10.3
3.4 .5

1 • ■

t.

.e• - ,,,::..

i:

<

I

•%

 
 KANSAS CITY MISSOURI SCHOOL DISTRICT DESEGREGATION IMPLEMENTATION PLAN
April 29, 1985 SUBMITTED BY STATE DEFENDANTS

CLERK U.S. DISTRICT COURT
P376Z Exhibits: D

•

Case No .-72

20 - C (A)

TABLE OF CONTENTS

INTRODUCTION, SUMMARY, AND RATIONALE
A. Guiding Principles B. The Plan in Brief C. The Plan Rationale

Pace 1
2 3 4

I. STUDENT ASSIGNMENT

8

A. Statement of Purpose

9

B. Early Projections

10

C. Implementation Plan

11

II. DISTRICTWIDE PROGRAMS

15

1. INSTRUCTIONAL MANAGEMENT SYSTEM AND

BASIC SKILLS CURRICULUM

16

A. Statement of Purpose

17

B. Instructional Management System

17

1. Addition of Instructional Management Personnel . . 17

2. Implementing the IMS Component

18

C. Basic Skills Curriculum

22

1. Implementing the Language Skills

23

2. Implementing the Mathematics Skills

26

D. Participants

29

1. Staff

29

2. Schools

29

3. Grade Levels Affected

30

E. Timetable

30

F. Budget
2. TESTING AND ACCOUNTABILITY
A. Statement of Purpose
B. Implementation
C. Participants
1. Staff 2. Schools 3. Grade Levels Affected
D. Timetable
E. Budget
3. EARLY CHILDHOOD/PARENT EDUCATION
A. Statement of 'Purpose
B. Implementation Overview
C. Screening Programs
1. Goals 2. Implementation 3. Administrative Structure 4. Personnel for Staffing 5. Inservice Training 6. Target Population 7. Screening Schedules and Locations 8. Screening Decisions 9. Screening Services to Families 10. Record Keeping 11. Evaluation
D. Parent Education Programs Overview
1. Goals 2. Implementation

Page
32
34
35
35
39
39 40 41
41
42
44
45
45
49
49 50 50 50 52 52 53 53 55 56 56
57
57 57

Pace

E. Parents As First Teachers Programs

Parent Education - Birth to Age Three

58

1. Implementation

58

2. Administrative Structure

58

3. Personnel

58

4. Physical Facilities

60

5. Staff Training and Curriculum

61

6. Recruitment/Enrollment

62

7. Services to Families

62

8. Record Keeping

63

9. Evaluation

64

F. Parent Education for Parents of Three- and

Four-Year Olds

64

1. Implementation

64

2. Administrative Structure

64

3. Eligibility/Enrollment Procedures

65

4. Facilities and Materials

65

5. Services to Families

65

6. Record Keeping

65

7. Evaluation

65

G. Opportunity Programs for Developmentally Delayed

Three- and Four-Year Olds and Their Parents

65

1. Goals

66

2. Implementation

66

3. Administrative Structure

66

4. Personnel for Staffing

67

5. Facilities

68

6. Curriculum and Staff Training

68

7. Eligibility/Enrollment Procedures

69

8. Services to be Provided to Children and Families 69

9. Record Keeping

69

10. Evaluation

69

H. Participants

76

1. Staff

76

2. Schools

76

3. Age Levels Affected

77

I. Timetable

77

J. Budget

79

4. EXTENDED DAY KINDERGARTEN A. Statement of Purpose B. Implementation C. Budget
5. EXTENDED YEAR/SUMMER SCHOOL A. Statement of Purpose B. Implementation C. Budget
6. COMPREHENSIVE PARENT INVOLVEMENT A. Statement of Purpose B. Implementation C. Bud g et
7. AAA CLASSIFICATION A. Statment of Purpose B. Implementation C. Budget
III. PROGRAMS IN REMAINING 90+ PERCENT BLACK SCHOOLS
1. REDUCTION IN CLASS SIZE
2. COUNSELORS
3. AFTER-SCHOOL PROGRAMS
4. SECONDARY EDUCATION PROGRAMS

Paae 84 85 85 85
87 88 88 88
89 90 90 94
96 97 97 98
100
101
104
106
108

IV. FACILITIES
V. MONITORING
A. Statement of Purpose B. Implementation
1. Budget Committee 2. Education Committee 3. Desegregation Committee C. Budget
VI. BUDGET

Pace 110
112
113 . . 113
114 114 114 114
115

INTRODUCTION, SUMMARY, AND RATIONALE

A. GUIDING PRINCIPLES
From an educational standpoint, a desegregation plan that has the highest probability of initial and sustained success should be based on an explicit rationale and set of stated principles. These principles aid in selecting the most productive components--those which efficiently accomplish the purposes set forth by the Court, while also avoiding faddish, unproven, unrelated, and needlessly expensive components that are unlikely or unnecessary to accomplish the fundamental purposes. When set forth explicitly, these principles may be evaluated by the interested parties; and the components of the plans may be weighed according to their conformity to the principles.
The present plan follows from ten principles. They overlap somewhat, but each has distinctive value that requires consideration. They are as follows:
I. EFFECTIVENESS
The plan must effectively accomplish the orders of the Court; more specifically, it must create a unitary school district through maximum desegregation and throu g h improvement of the academic achievement of black children.
2. DIRECTEDNESS
The plan must be directed at those found to be harmed--racially isolated black children. It should not be directed for the benefit of educational professionals, the general community, black children in integrated schools or white children, although it may help but not harm such children. Nor should it be directed at general improvements in education, which must be accomplished by other state and district programs and funding.
3. ADMINISTRATION
The State should not run the local school district. However, it has the responsibility to provide special expertise and experience, and appropriate oversight and monitoring to help ensure the plan's success.
4. CONSENSUS
Insofar as possible educational components advocated by all parties-the plaintiffs, the district, and the State should be given highest priority.
5. APPROPRIATENESS
Components that have a record of continuing success in the district or State should be selected or expanded.
2

7. COMPATIBILITY
The components selected should fit together and complement each other. A miscellaneous list of unrelated programs is likely to add only administrative complexity and confusion where it is least tolerable.
8. EFFICIENCY
The state has an obligation to employ tax funds in the most productive manner and to avoid diverting them to programs that do not accomplish the purposes of the Court's Order. Likewise, state revenues must not be expended in a manner that unfairly favors one district over another. The district must avoid wasting children's time on unworkable or unproven programs and those in which it has neither expertise nor experience.
9. FOCUS
The resources of the Plan should be concentrated on the enhancement of desegregation and on the chief agents of education and learning--children, teachers, and parents--and not on indirect administrative services and other educationally peripheral matters.
10. SPECIFICITY
To be enacted and monitored, the Plan must be detailed. It should include names and roles of responsible agents, materials required, activities to be conducted, dates of major events, and an itemized budget for each component.
B. THE PLAN IN BRIEF
The Plan is comprised of four components:
1. A carefully-drawn transportation arrangement that will encourage the maximum amount of racial desegregation while accommodating, to the extent possible, the desires of black and white parents to choose the schools that their children attend, including the ones nearest to their homes.
2. A coordinated set of educational components that will raise the quality, quantity, and effectiveness of instruction throughout the KCMSD elementary and secondary schools. The components include: a proven technique of instruction called "mastery learning"; rigorous use of testing results to monitor student progress; a program for preschool children to provide an academic headstart where needed; and extended-da y kindergarten and extended-year summer school to expand school time where appropriate.
The districtwide remedy will include: a comprehensive parent involvement program that will be implemented to build a strong coalition between the three chief agents of education--teachers, children, and parents--and to help promote educationally stimulating acti.vities in the bulk of children's waking hours that are spent outside school.
3

3. The state Plan also sets forth programs to be implemented only in schools that remain more than 90+ percent black. These will include a reduction in class size, the addition of any necessary counselors, after-school programs, and secondary education programs.
4. The state, on a one-time basis, will match up to S10 million raised by the KCMSD to improve its facilities.
5. A monitoring committee of KCMSD and State De p artment of Education staff will be formed to monitor the implementation of the Plan and to report quarterly to the Court.
C. THE PLAN RATIONALE
1. STUDENT TRANSFERS
It is well-known (and indeed is reflected in this Court's Order) that substantial majorities of black and white parents resist arbitrary and compulsory transportation away from the nearest neighborhood school simply for the purpose of racial desegregation. They feel alienated by the process. As a result, those who are economically able to do so, may abandon the public school system altogether.
In
Nevertheless, thirty years of constitutional precedent has firmly established that segregated schools are, pro tanto, unequal and constitutionally unacceptable. A desegregation plan must seek to provide desegregation, though within a workable framework, of course. Though it must squarely face--and then address-- the concerns of white and black parents, it must also call for some measure of mandatory student transfers if desegregation is to be more than nominal.
Striking the right balance between the need to desegregate and the need to attend to fears shared by all races is far from easy. Mechanically applied, compulsory insensitive racial mixing, effected through a readjustment of boundaries and the peremptory reassignment of students according to statistical criteria only, will achieve only the most fleeting "desegregation." It may soon be answered by middle-class (often mostly white) flight that reestablishes the racial isolation that the student transfers were intended to cure.
For these reasons, the state is continuing to develop a student transfer plan that is considerably more flexible (and that is therefore three times more expensive for the state) than a program that simply transfers the smallest number of students needed to achieve a uniform racial composition. This is a difficult and expensive process; it involves elaborate com p uter simulations and calculations; and it is time-consuming. The full development of the student transfer plan will eventually require full cooperation from the other parties in this litigation, as well as additional guidance from this Court.
4

2. EDUCATIONAL COMPONENTS
The Plan starts with a number of programs designed to be implemented districtwide. These programs will provide an opportunity for quality education for every student in the KCMSD. The justification for system-wide components in the plan comes from the relocation of formerly isolated students throughout the system.
To the extent that black children are educationally harmed by racial isolation--be it for psychological or other reasons--the harm will be remedied at least in part by desegregation. That segregation alone causes "educational harm" continues to be a controversial question; that desegregation alone remedies that particular harm is even more uncertain. Nevertheless, such educational harms are certainly possible, and other districts undergoing desegregation have routinely assumed that they do occur. It is, therefore, appropriate to include a number of properly targeted educational programs in a desegregation plan.
The state's Plan offers a coordinated set of educational components. If implemented fully and in good faith by all parties, these components should more than suffice to remedy government-imposed harms to racially isolated black children. This interrelated system of educational components will increase learning. The components include: a proven technique of instruction called "mastery learning," rigorous use of testing results to monitor student progress, a program for parents to give their preschoolchildren an academic headstart, extended-day kindergarten, and extended-year summer school. It also includes some reduction in class size, after-school programs and secondary education programs. As a set, these components increase the quality and effectiveness of instruction.
The educational components emphasizing mastery learnin g , instructional management, basic skills, early childhood development, parental involvement, reduction in class size, after-school programs and secondary education programs, and lengthening learning time are not only proposed by the state but by the KCMSD as well. Such programs are not only supported by research but are also highly regarded by many educators today. They are being put in place by school boards and state legislators around the country. Even though the research compilations and syntheses that solidly and objectively support such programs are relatively recent, the pro g rams have been used for decades in public schools. These programs deserve the Court's closest attention.
These programs are not exotic. They gain their success by organizing instruction and intensifying its duality. Mastery learning entails clearly specifying the goals of learning, developing or choosing the most appropriate lessons, giving each child sufficient time to master his or her goals, closely monitoring the child's progress, giving praise or other reinforcements for success, and providing encouragement and corrective feedback when errors are made. It is particularly suitable in desegregation where children of mixed
5

Early childhood programs, a lengthened day in kindergarten, and summer school in other g rades may be thou g ht of as additional ways of extending the amount of opportunity for learnin g . The emphasis on preschoolers and kindergarten provides the additional advantage of giving racially isolated black children a headstart in school.
It is important to realize the components of the State Plan are concentrated on providing direct educational services by teachers for children. The Plan specifically avoids the pervasive tendency " for additional administration, complexity, and un p roven programs . which often interfere with the primary purposes of education and a meaningful desegregation effort.
The selection of these particular remedial programs is supported by exhaustive statistical studies that draw on a lar g e body of empirical research. These certain educational techniques, which increase the quality and effectiveness of instruction and academic stimulation in the home, produce significant effects on academic learning. Estimates of the academic gain achieved through mastery learning or its components, for example, range from 8 to 12 months. Estimates of the benefits of systematically assigned and graded homework are, respectively, 3 and 8 months of academic gain. Home-stimulation programs not as extensive as those planned by the State have yielded estimates of 5 months of academic improvement. Increased time on learning by extending the school day and year yields an estimated 4 months of academic improvement.
Generally speaking all these components have not been implemented at the same time nor studied over the course of years. It cannot be definitively said that they enhance one another's effects. If they merely avoid interference, and add to one another, a conservative estimate of their combined effect is 20 months of academic gain. Conceivably, the combined effect might be as high as an estimated 29 months of academic gain.
The long-term effects of the separate educational components have not been studied, largely because their impressive effects have not been compiled until recently. Indeed, in the past, educational practice depended on opinions and fads more than on research findings or studies. Nevertheless, further academic gains can reasonably be expected from sustained programs. The important point is that the components proposed by the State have an excellent record of immediate effects, and are likely to yield an accelerated pace of learning for as long as they remain in effect.
The deep-rooted educational disadvantages within the KCMSD will not be immediately removed, but they can be removed most quickly throu g h a planned program of educational improvements. The educational components of the State's Plan are sufficiently conducive to rapid--and sustained--improved academic achievement.
6

The deep-rooted educational disadvantages within the KCMSD will not be immediately removed, but they can be removed most quickly through a planned program of educational improvements. The educational components of the state's Plan are sufficiently conducive to rapid--and sustained--improved academic achievement.
3. PARENTAL INVOLVEMENT
The state Plan also has a major parental involvement program. There is a potential for strikin g effects on learning from such a program. Its chief value is to bring about a parent-teacher partnership to directly expand and intensify the child's learning experiences in the large percentage of time spent outside school. Like intensification and expansion of learning time in school, such programs make the child's experience more educationally fruitful. Increasing the amount of homework is one example. Other examples are reducing of the nationally-estimated 30 hours of television students watch each week, and expanding leisure reading and other academically and culturally stimulating activities.
Parents are the child's first teachers. They can be encouraged and given the means to alter the "curriculum of the home." This curriculum refers to informed parent-child conversations about school and everyday events; encouragement and discussion of leisure reading; monitoring andjoint critical analysis of television viewing and peer activities; deferral of immediate gratifications to accomplish long-term, human-capital goals; and expressions of interest in the child's academic and other progress as a person.
These efforts can be enhanced by seeking to get parents more involved with the schools and teachers themselves. To accomplish this, parents are typically invited into the schools. They may be given information about their children's progress. They may also be given academic materials and activities, related to the school curriculum or not, which promote their children's learning outside school.
Research conclusions from almost 30 studies in the past decade show that 91 percent of the time, children benefitted significantly from such parental involvement.
4. OVERSIGHT AND MONITORING
The state should have a substantial role in overseeing this Plan. The state has been held accountable for the negative effects on education and should be accountable for proper and correct development and implementation of each component.
7

BUDGET SUMMARY
I. Student Assignment Professional Data Processing Transportation
II. Districtwide Programs 1. Instructional Management System and Basic Skills Curriculum 2. Testing and Accountability 3. Early Childhood/Parent Education 4. Extended Day Kindergarten 5. Extended Year/Summer School 6. Comprehensive Parent Involvement 7. AAA Classification
III. Programs in Remaining 90+ Percent Black Schools 1. Reduction in Class Size 2. Counselors - Budgeted or Part of AAA 3. After-School Programs 4. Secondary Education Programs
IV. Monitoring Total for Operations
V. Facilities (one time cost)
Grand Total

$ 5,690,354
2,693,720 93,100
1,223,348 1,086,037
329,100 1,439,272 3,263,652
3,180,165 712,000 104,400 742,500 105,000
$20,662,648 $20,000,000 $40,662,726

116

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

KALIMA JENKINS, et. al., Plaintiffs, VS.
STATE OF MISSOURI, et.al., Defendants.

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

SUGGESTIONS IN SUPPORT OF MOTION TO INTERVENE I. Description of Proposed Intervenors
Hashina Webster, Nia Webster, Ailey Pope, Kimberly Beasley, Arthur Beasley, Felicia Rhodes, and Christina Gravely are African American children who are now enrolled in either an elementary or secondary school of the Kansas City, Missouri School District (hereafter referred to as "KCMSD").
Shara Kennedy and Cassandra Young are African American students who recently attended KCMSD schools. Both young ladies were forced to withdraw from KCMSD schools and enroll in private schools because of the discriminatory and psychologically damaging denial of equal educational opportunities by the KCMSD.
Ajamu Webster is an engineer and president of DuBois Consultants, a local civil engineering company. As a parent and community activist, he has been actively involved in educational reform in the Kansas City, Missouri School District. He is a member of the
1

KCMSD's Educational Equity Task Force and previously served on the now defunct KCMSD Accountability Task Force. Mr. Webster is a former chairman of the School Advisory Committee (SAC) at Pinkerton Latin Grammar Elementary School and served on the planning task force for Paul Robeson Classical Greek Middle School. He is a member of the Board of Directors of the Black Chamber of Commerce of Greater Kansas City and the W.E.B DuBois Learning Center where he also tutors mathematics.
Carol Coe is a member of the Kansas City, Missouri City Council representing the Third Council District, which encompasses more KCMSD schools than any councilmanic district in the city. Prior to being elected to the City Council, Ms. Coe served on the Jackson County Legislature. As a parent and elected official, she has tracked implementation of the desegregation plan and is concerned about the failure of the parties to directly attack the vestigial effects of segregated schools on her constituency.
Ernestine Kennedy is Director of Adult Day Care at the Palestine Senior Citizens Activity Center. She has been actively involved with KCMSD schools for several years, is a graduate of KCMSD schools and was previously vice chair of the SAC at the Satchel Paige Classical Greek and Blenheim Elementary Schools. Although her daughter has enrolled in a private school for the 1994-95 school year bemuse of KCMSD's failure to offer equal educational opportunities, she is interested in KCMSD becoming unitary so her daughter can return to the public school system.
Bea Sanders is an administrator for a federal agency. She was actively involved with the SAC at J.A. Rogers until she was forced to enroll her daughter in a private school
2

because of the discriminatory and psychologically damaging treatment her daughter received from KCMSD administrative personnel.
Elizabeth Rhodes is a concerned and involved parent whose daughter, currently attending a KCMSD middle school, is being denied equal educational opportunities during implementation of the desegregation plan.
Mona Hicks is chair of the SAC at Van Horn High School where the curricular practices and actions of KCMSD personnel deny her daughter equality of educational opportunity.
Patricia Beasley has three children in KCMSD's schools: a daughter at Southeast High School, a daughter at Southeast Middle School, and a son at Faxon Annex. Although all of her children are being adversely affected by KCMSD's malfeasance and inequitable implementation of the desegregation plan, she is particularly concerned about the injuries inflicted upon her son by the inferior and substandard conditions at Faxon Annex.
II. Circumstances Warranting Intervention in this Case Among the vestiges found by the Court in this case was "low achievement" and "general attitude of inferiority among blacks," Jenkins v. Missouri, 593 F. Supp. 1485, 1492-93 (W.D. Mo. 1984). Despite this finding of the deleterious effects of the dual school system on the academic achievement of African Americans and in spite of frequent admonitions from the Desegregation Monitoring Committee (DMC), the parties have failed to effectively address the specific educational injuries and the stigma inflicted upon African American students (See DMC reports to the Court for the years 1991-93).
3

An analysis of the student achievement data published by the KCMSD leaves little doubt that desegregation programs and initiatives have not been sufficiently targeted to address the academic deficits and needs of the victims. On average, white students in the KCMSD are at or above state and national norms in virtually every subject at nearly all grade levels. They no longer suffer the ill effects of the "system wide reduction in achievement" found by the Court to be a vestige of segregation. However, the Court's finding of "low achievement and a general attitude of inferiority among blacks" persists. Commencing at grade 2 and continuing through out their schooling, on average, the African American students remain significantly (and in many areas substantially) below state and national norms. (See 1993 Student Achievement By School, Grade, and Racial/Ethnic Code).
The data also indicate that as students progress through the system from grade to grade, the gap in academic achievement levels between white students and African American students widens. A disturbing indicant of the lingering inequality of KCMSD's school system, after nine (9) years of the Milliken H quality education program, is that although African American and white students generally begin their school careers at near academic parity, by the time they graduate from KCMSD schools, the African American students are over three (3) full years behind their white counterparts in reading skills, and two and one-half (2 1/2) years behind in math skills.
"[The] success of quality education programs must be measured by their effect on the students, particularly those who have been the victims of segregation." Jenkins v. Missouri 11 F.3d 755, 766 (8th Cir. 1993). Applying the standard set by the Eighth Circuit in this case, the remedies requested by the parties have not been effective "and further action is
4

necessary in order to provide real and tangible relief to minority students". Freeman v. Pitts, 112 S.Ct. 1430,1447 (1992).
The fact that KCMSD and Plaintiffs are "friendly adversaries" in these proceedings cannot continue to be overlooked. While that relationship may have been appropriate during the liability phase, it has not been in the best interest of African American students during the remedial phase_ Plaintiffs' posture during the recent hearing on conditions in the Traditional Schools (July 19, 1994) is emblematic of the problem.
Plaintiffs' counsel offered no evidence during those proceedings and in his opening statement seemed to blame the victims for their plight. Without offering any empirical data or probative evidence to validate his conclusions, he stated that "poor kids are from dysfunctional families" (see Transcript, 385); that their "families are not involved in their education" (see Transcript, 386); and that the problems of the Traditional Schools are caused by the socio-economic status of the students. (See Transcript, 386). This perspective undoubtedly impedes Plaintiffs' ability to accurately and adequately assess the lingering debilitatin g effects of KCMSD's inequitable educational delivery system or the unequal nature of the KCMSD's curricular programs and instructional methodologies.
Throughout this important phase of the litigation, all critical decisions relative to the educational interests of the African American children have been made without meaningful input from the victims or their parents. Because little has been done by the parties to remedy the most crippling and incapacitating vestige of "low achievement" and
5

1! "general attitude of inferiority among blacks," the intervention motion was filed by concerned African American parents -- parents who are committed to eradicating the stigmatizing vestiges of KCN1SD's dual system of education. Parents who believe that the Court, not the constitutional violators and not the Plaintiffs' counsel must be the final arbiter of the victims' rights.
III. In Light Of The Circumstances Permission To Intervene Should Be Granted When a school system has been found to be racially segregated, Brown II imposes
an affirmative duty on local school boards to take whatever steps are necessary to convert the system to a unitary one where racial discrimination has been eliminated "root and branch," Green v. School Board of New Kent County, 391 U.S. 430, 437-439 (1968). A school board's failure to discharge that duty compounds the original constitutional violation caused by the operation of a segregated system. Dayton Board of Education v. Brinkman. 433 U.S. 406, 414 (1977). While such a failure might conceivably be the predicate for a new lawsuit, the courts have determined that it should not.
In Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 1973), the Court reasoned that while "every group must be allowed the opportunity to show the Court that the desired and legally required unitary school system has not been achieved by an earlier court order," the interest of avoiding undue confusion and a multiplicity of lawsuits makes a petition to intervene in the existing desegregation action rather than the initiation of an new lawsuit the best vehicle for presenting such claim. Id. at 765.
In Hines,the court held that intervention is the appropriate method for parents or organizations to question deficiencies in the implementation of desegregation orders.
6

The Hines court also identified the nature of the information that must be contained in
a school intervention petition as well as factors district courts should look for when
evaluating the merits of such a petition. Judge Morgan, writing for the Court, explained
that:
[the] petition for intervention would bring to the attention of the district court the precise issues which the new group sought to represent and the ways in which the goal of a unitary system had allegedly been frustrated. The district court could then determine whether these matters had been previously raised and resolved and/or whether the issues sought to be represented by the new group were currently known to the court and parties in the initial suit. If the court determined that the issues these new plaintiffs sought to present had been previously determined or if it found that the parties in the original action were aware of these issues and completely competent to represent the interests of the new group, it could deny intervention. If the court felt that the new group had a significant claim which it could best representintervention would be allowed.
479 F2d. at 765.
In addition to the factors stated in Hines, there are factors established by Rule 24
of the Federal Rules of Civil Procedure for intervention in a federal lawsuit.
Intervention in a school case may be ordered under the permissive intervention
standards of F. R. Civ. P. 24(b) which provide, in pertinent part, that "[upon] timely
application anyone may be permitted to intervene in an action ... when an applicant's
claim or defense and the main action have a question of law or fact in common." The
Rule also provides that "[in] exercising its discretion the court shall consider whether
intervention will unduly delay or prejudice the adjudication of the rights of the original
parties."
While the decision, whether to permit intervention, is a matter left to the sound
discretion of the trial court, NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2.591, 37
7

L.Ed.2d 648 (1973), petitions by parents alleging serious breakdown in the school desegregation processes should be reviewed with a receptive eye. See Graves v. Walton County School Board of Education, 686 F.2d 1135 (5th Cir. 1980). In Graves, when finding that a trial court had abused its discretion by denying intervention, the circuit court stated:
This court has long recognized the intense interest of parents in the education of their children, and it has been solicitous of their opportunity to be heard. Intervention in suits concerning public schools has been freely allowed, and we see no reason why it should be denied here, especially in view of the lack of prejudice to other parties. Should future conduct indicate a different motive on the part of the concerned parents, the district court may take appropriate action. Id. at 1142, n.5. See also, Liddell v. Caldwell, 546 F. 2d 768 (8th Cir. 1976). There are compelling reasons why intervention should be allowed here. As parents, the proposed intervenors have a vital interest in the education of their children. See Meyer v. Nebraska 262 U.S. 390, 43 S.Q. 625, 67 L.Ed. 1042 (1923); Graves v. Walton County Board of Education, 686 F.2d. at 1142, n3. They also have an expectation, based on Brown v. Board of Education and its progeny, that their children will not have to attend an illegal dual school system. However, the failure of the existing parties in this case to devise and implement an effective plan to eliminate the lingering vestige of "low achievement" and "general attitude of inferiority among blacks" has seriously thwarted that expectation and promises in the future to preclude their children (as well as thousands of other African American children) from ever recovering from the ill-effects of a segregated school system.
8

Given the fundamental importance of the constitutional right at stake, the longterm inability or unwillingness of the parties to develop a plan to eliminate all the vestiges of segregation in order to provide the victims with real and tangible relief, the lack of any prejudice that would result from allowing intervention here, the fact that a vigorous and creative voice would be added to the cast of principals in this case, the disregard for educational interests of the African American students, and the fact that there are no overriding reasons under the Hines guidelines or Rule 24 for denying intervention, granting intervention here and now would not only be appropriate but would materially advance the interest of justice.
In Graves v. Walton County Board of Education, supra, the Fifth Circuit stated that "[intervention] in suits concerning public schools has been freely allowed, and we see no reason why it should be denied here, especially in view of the lack of prejudice to the other parties." 686 F.2d at 1142, n.5. It is improbable, in view of the nature of this intervention motion, that niy prejudice would occur to any of the parties as a result of the parents' inclusion in this case.
If anybody, in fact, has reason to complain of prejudice, it is the African American children of the KCMSD who have had to endure inequitable and ineffective curricular practices and racially isolated school settings because of the continuing failures of the parties. For its part, the KCMSD has neglected its traditional schools, most of which are inferior and racially identifiable, despite a clear constitutional duty to develop effective educational improvement programs for those schools. The KCMSD has failed to comply with its continuing obligation to use its resources to eradicate all the effects of
9

its historically segregated school system and seems to have forgotten about the educational interests of its African American students. For too long, the KCMSD has inappropriately treated the process of desegregation as a process that focuses solely on integrating the schools. The KCMSD should have proceeded, to adjust or modify the sequence of its capital improvement projects to accommodate the needs of the victims of discrimination who attend traditional schools when it became apparent that old buildings and annexes would have to be utilized. It should have devised and implemented victim specific programs to address the academic injuries of the African American students. Its failure to treat the desegregation process as an ongoing function of both integration and eradication of vestiges is, in large measure, the reason why this motion for intervention is necessary today.
Another reason why intervention is necessary, however, stems from the disquieting failure of the other parties to fulfill their responsibilities to the African American children of the KCMSD and, indeed, to this Court. This case was instituted for the purpose of achieving desegregation in the KCMSD public schools. It was initiated on behalf of the African American students of the KCMSD to provide them with relief from the damages inflicted by defendants' discriminatory conduct. Somehow, the parties failed to pursue victim specific remedies for the African American children. Somehow, the parties seemed to lose sight of or chose to ignore the vestige of "low achievement" and "general attitude of inferiority among blacks." Somehow, in the midst of so many African American children attending inferior and racially identifiable
10

facilities, the parties forgot or ignored the plight of these students and the objective of the capital improvements program.
IV. Conclusion. For the reasons discussed in these suggestions, as well as for the reasons contained in the accompanying Motion To Intervene, the movants should be allowed to intervene in this action as party plaintiffs.

Clinton Adams, Jr. 25438 600 E. 11th Street Kansas City, Missouri 64106 816/221-5980 Of Counsel

Respectfully submitted,
.......- ily
-e.-..wo. w nres of Edward L Pendleton Edward L. Pendleton #22992 Holly Winkler #43267 600 E. 11th Street Kansas City, Missouri 64106 816/221-5980
Attorneys for Prospective Plaintiff-Intervenors

11

CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Motion to Intervene, Complaint in Inrrvention, and Suggestions in Support of Motion fo Intervene were mailed on this
day of December 1994 to: Arthur Benson, Esq. 1000 Walnut, Suite 1125 Kansas City, Missouri 64106 Attorney for Kalima Jenkins, et. al. Allen R. Snyder, Esq. Hogan & Hanson LLP. 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109 Shirley Keeler, Esq. Blackwell, Sanders Matheny,
Weary & Lombardi 1100 Two Pershing Square 2300 Main Street Kansas City, Missouri Attorneys for the Kansas City, Missouri
School District Michael J. Fields, Esq. Office of the Attorney General 1700 Jefferson Street Jefferson City, Missouri 65109 Attorneys for the State of Missouri Scott A. Raisher, Esq. Jolley, Walsh & Hager, P.C. 204 East Linwood Blvd. Kansas City, Missouri 64111 Attorneys for Intervenor A Local 691
dleton

 
 In the Cause of Kalima Jenkins, et al.
vs. State of Missouri, et al. Case No. 77-0420-CV-W-4

Report of the Desegregation Monitoring Committee for the Period July 1, 1990 - June 30, 1991

Eugene E. Eubanks, General Chairperson

Budget Committee

Desegregation Committee

Kenneth Kraft, Chair Patricia Jordan Thomas Bixby
Education Committee
Miguel Sancho, Chair Deborah Neal John Cozad

James Oglesby, Chair Javier Perez, Jr. Susan Stanton
VIDT Committee
Carl DiCapo, Chair Charles James Ed Stoll

.4, v

TABLE OF CONTENTS

Budget Subcommittee

1

Desegregation Subcommittee

36

Education Subcommittee

43

VIDT Subcommittee

59

BUDGET SUBCOMMITTEE PRELIMINARY REPORT TO THE COURT FOR YEAR SIX

Members
Kenneth W. Kraft, Chair Patricia Jordan Thomas Bixby Ed Stoll

Contents

INTRODUCTION

SECTION I -

PROGRAMS Year One Year Two Year Three Year Four Year Five Year Six

SECTION II -

PROGRAM FUNDING

SECTION III -

CAPITAL IMPROVEMENT PROGRAM Phases IV-XI Summary Funding

SECTION IV -

COMPREHENSIVE ANNUAL FINANCIAL REPORT FYE JUNE 30, 1990

SECTION V -

MEMORANDUM ON ACCOUNTING PROCEDURES, INTERNAL ACCOUNTING CONTROLS AND OTHER BUSINESS MATTERS

SECTION VI -

DMC's FINANCIAL ANALYST SPECIAL REVIEWS

SECTION VII -

COMMENTARY

SECTION VIII - RECOMMENDATIONS

INTRODUCTION This report of the Budget Subcommittee will not only be an overview of Year Six but also a summary of the first six years of the desesgregation plan. As Year Six draws to a close, it is again appropriate to state that although some progress is still being made in the area of financial services, physical facilities and security, much still remains to be done. It seems that each time the District encounters a problem, instead of determining the cause and trying to correct that, it treats the symptoms by hiring more personnel. A presentation of financial data on Years One, Two, Three, Four, Five and Six will be made. The financial data for Years One through Four will be made as of June 30, 1990, and for Years Five and Six, the data will be as of April 30, 1991. The data for Years One through Four have been taken from the Arthur Andersen and Company Audit Report for the Year Ended. June 30, 1990. The District is still undergoing change in its modified accrual accounting system. This is refelcted in the data presented which still shows expenditures being charged to previous years. There comes a time when the books need to be closed and the efforts focused on the current year and the subsequent year. This is especially true given the fiscal condition of the operating budget. This report will also include such other information that the Committee feels should be brought to the attention of the Court. Also, the Committee will present its recommendations for the consideration and requested support of the Court.
2

SECTION I - PROGRAMS

YEAR ONE

Fiscal Year Ended June 30, 1986

Budget

Life-to-Date

Unexpended

AAA Class Size Reduction Summer School Full Day Kindergarten Before and After School Tutoring Early Childhood Education Effective Schools Magnet Schools Public Relations Staff Development

$ 4,738,500 2,000,000 641,550 1,092,000 104,400 894,909 4,025,000 85,000 30,000 500,000

Totals Percentage

$14,111,359

$ 4,040,142 1,969,497 631,365 993,409 74,123 416,409 3,578,111 78,527 12,358 514,827
$12,308 768 87.226

$ 698,358 30,503 10,185 98,591 30,277
478,500 446,889
6,473 17,642 (14,827)
liamsm
12.774

Year One has been closed and there were no expenditures charged to it during the fiscal year which ended June 30, 1990.

YEAR TWO

Fiscal Year Ended June 30, 1987

Budget

Life-to-Date

Unexpended

AAA Class Size Reduction Summer School Full Day Kindergarten Before and After School Tutoring Early Childhood Education Effective Schools Magnet Schools Long-Range Magnets Public Relations

$ 8,790,697 4,000,000 1,196,000 1,594,496 104,400 1,551,786 5,275,000
12,972,727 8,315,936
30,000

$ 7,356,460 3,548,273 890,475 1,517,759 90,041 1,463,975 4,564,949
12,716,394 4,924,197
33,550

$1,434,237 451,727 305,525 76,737 14,359 87,811 710,051 256,333
3,391,739 (3,550)

Totals Percentage

$43,831,042

$37,106,073 84.657

$6 724 969 15.343

Year Two has been closed and there were no expenditures charged to it during the fiscal year ended June 30, 1990.

3

YEAR THREE

Fiscal Year Ended June 30, 1988

Budget

Life-to-Date

AAA Class Size Reduction Summer School Full Day Kindergarten Before and After School Tutoring Early Childhood Education Effective Schools Magnet Schools Long-Range Magnets (2) Public Information Magnet School Transportation Interest Cost Relocation Cost Teacher Salary Package (1) Maintenance Plan (1) Special Education (1) DMC

$ 6,292,614 8,450,135 1,295,764 1,826,964 233,759 3,102,178 6,555,000
12,257,529 17,340,592
30,000 5,658,667
957,700 454,687 7,146,646 2,239,877 869,189
64,057

$ 5,519,625 5,355,377 1,213,426 1,329,130 272,280 2,744,845 5,935,260
11,137,471 14,720,374
33,422 5,376,304
991,025 319,768 4,778,667 1,668,757 510,653
64,057

Unexpended
$ 772,989 3,094,758 82,338 497,834 (38,521) 357,333 619,740 1,120,058 2,620,218 (3,422) 282,363 (33,325) 134,919 2,367,979 571,120 358,536 -0-

Totals Percentage

$74,775,358

$61,970,441 82.861

$12,804,917 17.139

During the fiscal year ended June 30, 1990, expenditures in the amount of $189,887 were charged to Year Three, and $568,025 were deducted.

(1) These programs were originally budgeted in the operating fund to be funded by the income tax surcharge revenues. When the income tax surcharge was eliminated and refunded by the State, these expenditures were transferred to the desegregation fund and designated as desegregation expenses. The budget is reflected here to correspond with the actual expenditures.

(2) Expenditures include $72,308 of extended day costs questioned by the DMC. These were 100% subsidized from operating budget sources in September 1990.

4

(1) Life-to-date expenditures are modified cash basis through April 30, 1991. Expenditures include actual cash disbursements and accounts payable. Expenditures do not include encumbrances or accruals.

(2) The desegregation budget is subject to revisions through District Court order and reflects the court-ordered increase (decrease) from original approved program budgets.

(3) The November 2, 1989 Court Order disallowed as desegregation expense $8,050,281 of this budget which represents the base costs of operating traditional programs. The District is solely liable for this $8,050,281 which is included in the budget amount reflected above. The District has filed a motion with the U.S. District Court to amend this order. The order was stayed pending the results of a court-ordered management study of the District's operating budget.

(4) The August 4, 1989 Court Order approved the District's request that the Disutrict will submit its transportation funding request when final figures are available at the end of each year. The District has not yet gone to Court for Program Year Five; therefore, the budget amount has not been approved by the Court.

(5) This budget amount represents the court-ordered budget for summer security. The District is also charging incremental costs for data processing and finance personnel and costs for a central receiving warehouse to this program as the District feels these costs are related to the desegregation programs. These costs were disallowed by the Court as desegregation costs, therefore, the State does not provide funding for this program as it is 100% subsidized from operating sources. These costs were moved to the operating budget for Year Six.

YEAR SIX

Fiscal Year Ending June 30, 1991

AAA Class Size Reduction Summer School Full Day Kindergarten Extended Day Early Childhood Education Effective Schools Magnet Schools Long-Range Magnets District Communications Base Budgets DMC Interest Cost

Budget (2)
$ 6,569,389 4,683,986 1,510,323 1,773,185 453,000 3,598,491 7,350,000
15,694,833 43,246,424
31,125 14,867,645
104,164 788,068

Life-to-Date (1)
$ 3,391,386 1,934,591 1,508,533 703,612 240,631 1,683,352 3,994,735 7,973,711
22,971,613 27,035
7,186,072 84,172
107,656

Unexpended
$ 3,178,002 2,749,395 1,790 1,069,573 212,369 1,915,139 3,355,265 7,721,122
20,274,811 4,090
7,681,573 19,992
680,412

7

Debt Service Research and Evaluation Magnet School Transportation (3) Teachers Salaries Maintenance. Plan Special Education Compliance Summer Security Security-New Initiative Salary Package VIDT Management Study

14,921,978 5,414 -0-
5,147,646 2,239,877
869,189 124,580 170,531 32,000,000
22,934 182,500

14,877,574 2,930
12,390,540 4,423,376 1,439,427 604,576 110,733 105,733
20,761,959 -0-
182,500

44,404 2,484
(12,390,540) 724,271 800,450 264,613 13,847 64,798
11,238,041 22,934 -0-

Totals Percentage

$156,355,282

$106,706,447 68.2

$49,648,835 31.8

(1) Life-to-date expenditures are modified cash basis through April 30, 1991. Expenditures include actual cash disbursements and accounts payable. Expenditures do not include encumbrances or accruals.

(2) The desegregation budget is subject to revision through District Court Order and reflects the court-ordered increase (decrease) from the original approved program budgets.

(3) The August 4, 1989 Court Order approved the District's request that the District shall submit its transportation funding request when final figures are available at the end of each year.

SECTION II - PROGRAM FUNDING

KCMSD AND STATE FUNDING In December 1988, the District, in cooperation with the State, changed the procedure for the monthly bank drawdowns. The District went to a daily drawdown instead of a semimonthly drawdown. In the process, the District uses a general reconciliation at the end of each month. This procedure consolidates all desegregation expenditures for the month inrespective of fiscal years. Separate desegregation reports by fiscal year are submitted, but not in a timely manner. They are received by the DN1C and the State usually four to six weeks after the reconciliation statements.

8

The following financial data was taken from the Comprehensive Annual Financial Report for the Year Ended June 30, 1990, as prepared by Arthur Andersen & Co., and financial data prepared by the DMC auditors for Years Five and Six.

Life-to-Date

State

KCMSD

Year 1 Year 2 Year 3 Year 4 Year 5 Year 6

$ 12,308,768 37,106,073 61,970,441 89,940,596 100,795,806 92,067,624

$ 9,192,910 23,409,942 38,648,502 41,587,925 48,462,279 34,968,269

$ 3,115,858 13,696,131 23,321,939 48,352,671 52,333,527 57,099,355

Totals KCMSD Share Paid by State

$394,189,308

$196,269,827 31,921,928

$197,919,481 (31,921,928)

Totals Percentage

$228,191,755 57.889

$165,997,553 42.111

As of February 28, 1991, the District share of desegregation expenditures paid by the State due to joint and several liability was $31,921,928 which does not include the approximately $29,795,143 of income surcharge revenues that were refunded by the State.

The above amounts reflect the $24,563,168 of protested taxes for 1988 and 1989 which were refunded to the State, and credits in the amount of $1,464,744 due the State.

SECTION M

CAPITAL IMPROVEMENT PROGRAM

Phase IV Project Budget - Court Order November 12, 1986

Projects

Budget

Total Costs

Over(Under)

Bingham Central Middle Fair-mount, et al Mt. Washington Gladstone Lincoln South Northeast Paseo Middle Southeast Middle West Elementary

$ 2,740,411 4,643,582 254,398 39,388 4,568,834 3,039,292 5,500,126 5,605,163 2,971,380 6,598,470

$ 2,255,725 4,499,788 255,337 38,347 5,163,517 2,745,564 5,657,168 6,663,775 2,596,317 6,673,063

$ (484,686) (143,795) 939 (1,041) 594,683 (293,728) 157,042 1,058,612 (375,063) 74,593

9

Subtotals

$35,961,043

$36,548,600

$ 587,557

Estimated PMT costs

1,654,208

1,654,208

Total Phase IV

$37,615,251

$38,202,808

$ 587,557

Construction Costs Asbestos Abatement Soils, Surveys, etc. Contingency Architect/Engineering Fees Advertising Furniture PMT Costs
Totals

$30,461,732 75,115 214,913
1,621,063 2,198,612
12,000 1,377,609 1,654.208
$37,615,251,

$ 3,555,195 75,115 314,674 -0-
2,613,145 21,374
1,277,609 1.654,208
$38,202,808

$ 1,684,951 -0-
99,761 (1,621,612)
414,533 9,374 -0-0-
$ 587,557

Percent Over Budget Percent Expended

1.6% 64.5%

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Phase IVA Project Budget - Court Order April 29, 1987

Projects

Budget

Total Costs

Over(Under)

School of the Arts PMT Costs

$4,481,487 206,148

$4,261,872 206 148

$(219,614)

Totals

$4,687,635

$4,468,021

$(219,614)

Construction Costs Asbestos Abatement Soils, Surveys, etc. Contingency Architect/Engineering Fees Advertising Furniture PMT Costs
Totals

$3,267,231 489,307 16,336 196,034 291,378 1,200 250,000 206,148
$4,687,635

$3,555,195 195,562 -0196,034 282,616 3,200 225,300 206,148
446.1221

$ 287,964 (293,745) (16,336) -021,238 2,000 (24,700) -0-
$(219,614)

Percent Over Budget Percent Expended

4.9% 100.0%

10

Phase IVC Project Budget - Court Orders November 12, 1986 and April 20, 1989

Projects

Budget

Total Costs

Over(Under)

Central High PMT Costs Contingency

$22,991,511 656,399
2,347,462

$25,085,779 656,399 -0-

$ 2,094,268 -0-
(2,347,462)

Totals

$25,995,372

$25,742,178

$ (253,194)

Construction Costs Soils, Surveys, etc. Contingency Architect/Engineering Fees Advertising Furniture PMT Costs
Totals

$20,242,813 180,714 602,380
1,214,569 1,200
749,835 656.399
$25,995,372

$22,838,843 266,766 -0-
1,222,020 8,313
749,835 656.399
$25,742,178

$ 2,596,032 86,052
(602,380) 7,451 7,113 -0-0-
L12111941

Percent Under Budget Using Contingency Percent Over Budget Without Contingency Percent Expended

1.0% 9.1% 65.6%

+++++++++++++++++++++++ ++++++++++ ++++ +++++ ++++++++++++++++++++++++++++++++++++

Phase V Project Budget - Court Order September 15, 1987

Projects

d Buget

Total Costs

Over(Under)

Southeast Annex New Faxon Longan, Phillips, Meservey Melcher North Rock Creek/Korte Southwest High PMT Costs Contingency Transfer
Totals

$ 899,973 4,199,245 1,269,320 1,482,950 3,009,313 9,451,793 888,328 2,500,000
$23,681,654

$ 1,032,665 4,108,534 1,163,549 1,225,831 3,009,313
11,112,095 888,328 -0-
$22,540,315

$ 132,692 (71,443)
(105,772) (257,120)
-01,660,303
-0(2,500,000)
$(1,141,339)

11

Construction Costs Asbestos Abatement Soils, Surveys, etc. Contingency Architect/Engineering Fees Advertising Furniture PMT Costs Contingency Transfer Phase XI Korte

$16,471,120 422,683 110,718 934,163
1,044,466 7,200
321,128 888,328 2,500,000 981,850

$19,651,398 368,823 159,374 -0-
1,141,516 9,748
321,128 888,328
-0-0-

$ 3,180,278 (53,860) 48,656
(934,163) 97,050 2,548 -0-0-
(2,500,000) (981,850)

Totals

$23,6811654

$22,540,315

$(1,141,339)

Percent Over Budget Percent Expended

5.0% 89.2%

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Phase VI Project Budget - Court Order September 15, 1987

Projects
New Knotts New Attucks King Middle/Weeks New Pitcher Garfield Paige Elementary (Southeast I) Nowlin Middle Paseo High Three Trails KC Tech/MATHS Troost Wheatley Middle School I Woodland PMT Costs

Budget
$ 4,258,523 4,269,825 1,647,514 5,853,858 3,618,751 5,953,237 2,711,391
14,654,188 1,251,641
14,129,144 2,448,123 1,414,142
10,237,792 4,377,620 3,533,984

Total Costs
$ 4,621,439 4,707,685 1,652,021 5,509,989 3,166,839 6,205,010 2,864,249
20,862,428 1,236,451
13,164,747 2,375,882 1,347,322
11,200,296 4,250,901 3,533,984

Over(Under)
$ 362,916 437,860 4,507
(343,869) (451,913)
251,773 152,858 6,208,240 (15,190) (964,397) (72,242) (66,820) 982,505 (126,719)
-0-

Totals

$80,359,734

$86,719,244

$6,359,510

12

Construction Costs Asbestos Abatement Soils, Surveys, etc. Contingency Architect/Engineering Fees Advertising Furniture PMT Costs

$64,482,909 945,286 506,730
3,295,726 4,067,565
18,000 3,509,534 3,533,984

$73,268,291 936,398 978,214 -0-
4,460,399 32,424
3,509,534 3,533,984

$8,785,382 (8,888) 471,484
(3,295,726) 392,833 14,424 -0-0-

Totals

$80,359,734

$86,719,244

$6,359,510

Percent Over Budget Percent Expended

8.3% 46.0%

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +++ +++++++

Phase VII Project Budget - Court Order September 15, 1987

Pro iects
East High Northeast Middle Richardson Southeast High Van Horn Westport Middle Westport High Meservey East & Southeast Stadiums Linwood Linwood West Banneker (Southeast II) Holliday (Southeast III) Carver (New Elementary I) New Elementary II Trailwoods (Elementary III) Norman Center Robeson (Middle School II) PMT Costs

Budget
$ 7,496,505 6,612,200 1,467,631 6,849,930 6,559,681 5,327,597 7,556,023 859,122 984,-965 930,566 1,138,437 5,056,615 6,492,956 4,655,251 4,305,636 4,305,636 3,422,654 7,684,294 3,758,462

Total Costs
$ 8,298,302 6,900,808 1,426,859 7,542,745 7,325,393 5,766,731 7,668,854 762,282 857,240 952,918 1,138,557 5,250,213 7,028,247 4,356,358 4,305,637 4,305,637 3,422,654 7,930,949 3,758,462

Over(Under)
$ 801,798 288,608 (40,772) 692,814 765,712 439,134 112,831 (96,840)
(127,725) 22,352 120
193,598 535,291 (298,893)
1 1 0 246,655 -0-

Totals

$85,464,160

$88,998,845

$3,534,685

13

Construction Costs Asbestos Abatement
Soils, Surveys, etc. Contingency
Architect/Engineering Fees Advertising Furniture
PMT Costs

$69,455,810 1,291,739 502,828 3,761,732 4,392,281 21,600 2,279,709 3,758,462

$76,124,897 1,291,738 998,906 -04,511,803 33,329 2,279,709 3,758,462

$6,669,088 (1)
496,078 (3,761,732)
119,522 11,729 -0-0-

Totals

$85,464,160

$88,998,845

$3,354,685

Percent Over Budget Percent Expended

4.3% 21.2%

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Phase VIII Project Budget - Court Order July 2, 1990

Projects
Nowlin Middle Fairmount Mt. Washington Bryant Dunbar Fairview Longfellow Askew PMT Costs

Budget
$ 3,131,750 2,177,806 276,936 964,300 608,575 1,125,570 1,674,359 2,119,309 555,616

Total Costs
$ 3,131,750 2,203,199 284,439 492,143 608,537 1,125,570 1,674,320 2,119,309 555,616

Over(Under)
$ -025,393 7,503
(472,157) (38) -0(40) -0-0-

Totals
Construction Costs Soils, Surveys, etc. Contingency 6% Architect/Engineering Fees Advertising PMT Costs
Totals

$12,634,220
$10,576,724 72,884
634,603 784,793
9,600 555,616
$12,634,220

$12,194,881
$10,509,405 72,806
223,837 823,617
9,600 555,616
$12,194,881

$(439,339)
$ (67,319) (78)
(410,766) 38,824 -0-0-
$039,339)

Percent Over Budget Percent Expended

3.5% 1.5%

14

Phase IX Project Budget - Court Order July 2, 1990

Projects

Budget

Total Costs

Over(Under)

Bancroft Border Star Moore PMT Costs

$3,068,530 2,896,008 2,471,088 388,039

$3,068,530 2,896,008 2,471,088 388,039

$ -0-0-0-0-

Totals

$8,823,664

$8,823,664

$ -0-

Construction Costs Soils, Surveys, etc. Contingency 6% Architect/Engineering Fees Advertising PMT Costs
Totals

$7,395,124 44,476
443,707 548,718
3,600 388,039
Eizaak

$7,838,832 44,475 -0-
548,718 3,600
388,039
$8,823,664

$ 433,708 (1)
(433,707) -0-0-0-

Percent Over(Under) Budget Percent Expended

0% 1.5%

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Phase IXa Project Budget - Court Order July 2, 1990

Projects
Chick Graceland McCoy Ladd PMT Costs
Totals
Construction Costs Soils, Surveys, etc. Contingency 6% Architect/Engineering Fees Advertising PMT Costs

Budget
$1,931,131 1,680,445 1,984,387 1,401,457 321,881
$7,319,301
$6,129,406 40,647
367,765 454,802
4,800 321,881

Total Costs
$1,931,131 1,680,445 1,984,387 1,401,457 321,881
$7,319,301
$6,497,171 40,647 -0-
454,802 4,800
321,881

Over(Under)
$ -0-0-0-0-0-
$ -0-
$ 367,765 -0-
(367,765) -0-0-0-

15

Totals

$7,319,301

$7,319,301

Percent Over(Under) Budget

0%

Percent Expended

0%

+++++++++ +++++++++++++++++++++ +++++++ ++++++++ ++ ++++++++++++ +++++++++++++++++++

Phase X Project Budget - Court Order November 14, 1990

Projects

Budget

Total Costs

Delano James Phillips Blenheim Pinkerton Scanitt Whittier PMT Costs

$ 828,797 2,477,522 474,466 2,177,447 2,052,009 1,923,647 2,303,802 562,934

$ 828,797 2,477,522 474,466 2,177,447 2,052,009 1,923,647 2,303,802 562,934

Totals

$12,800,624

$12,800,624

Construction Costs Soils, Surveys, etc. Contingency 6% Architect/Engineering Fees Advertising PMT Costs

$10,719,619 71,098
643,177 795,396
8,400 562,934

$11,318,369 71,098 -0-
839,823 8,400
562,934

Over(Under)

$

-0-

-0-

-0-

-0-

-0-

-0-

-0-

-0-

$

-0-

$ 598,750 -0-
(643,177) 44,427 -0-0-

Totals

$12,800,624

$12,800,624

Percent Over(Under) Budget

0%

Percent Expended

0%

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Phase XI Project Budget - Court Order November 14, 1990

Projects
Franklin Korte Korte Add Funding West Rock Creek

Budget
$ 632,587 2,540,938 981,850 1,519,208

Total Costs
$ 632,587 2,540,938 981,850 1,519,208

Over(Under)

$

-0-

-0-

-0-

-0-

16

Wheatley Longan Melcher Sugar Creek Three Trails PMT Costs

1,026,937 2,385,354 1,808,403 2,569,593 1,412,405
684,355

1,026,937 2,385,354 1,808,403 2,569,593 1,412,405
684,355

Totals

$15,561,630

$15,561,630

Construction Costs Soils, Surveys, etc. Contingency 6% Architect/Engineering Fees Advertising PMT Costs

$12,171,546 80,858
730,293 903,129
9,600 684,355

$12,868,716 80,858 33,123
903,129 9,600
684,355

Totals

$15,561,630

$15,561,630

Percent Over(Under) Budget

0%

Percent Expended

0%

CAPITAL IMPROVEMENT PROGRAM SUMMARY

Budget

Total Costs

Phase IV Phase IVa Phase IVc Phase V Phase VI Phase VII Phase VIII Phase LX Phase IXa Phase X Phase XI

$ 37,615,251 4,687,635
25,995,372 25,995,372 23,681,654 80,359,734 12,634,220 8,823,664 7,319,301 12,800,624 15,561,630

$ 38,202,808 4,468,021
25,742,178 25,742,178 22,540,315 86,719,244 12,194,881 8,823,664 7,319,301 12,800,624 15,561,630

Totals

$314,943,245

$323,371,511

-0-0-0-0-0-0-
$ -0-
$ 697,170 -0-
(697,170) -0-0-0-
1____;SL-
Over(Under)
$ 587,557 (219,614) (253,194)
(1,141,339) 6,359,510 3,534,685 (439,339) -0-0-0-0-
$8,428,266

17

The above data were taken from the monthly report prepared by the District's Capital Improvement Program Budget Analyst, dated May 17, 1991. The budgets presented are the working budgets used by the PMT in tracking the progress of the individual projects and the total costs are the anticipated costs for completion of the projects. These figures are not consistent with the figures that appear in the general ledger of the District. The figures do not reflect all the charges that are made to the capital improvement program.
The following data were taken from the District's financial services CIP closed book drawdown report as of April 30, 1991, which is the vehicle used to access state funding of the program and is based on the figures that appear in the District's general ledger:

Revised Budget

Life-to-Date Expenditures

Project Management Team Furniture Capital Facility Planners CIP Phases I and II 1986-87 Magnet CIP Phase III Long Range CIP Phase IV Jewish Community Center CIP Phase IVa Long Range CIP Phase IVb Long Range CIP Staging Long Range CIP Staging FY1990 Long Range CIP Phase V Long Range CIP Phase VI Long Range CIP Phase VII Long Range CIP Phase VIII Long Range OP Phase IX
Long Range OP Staging FY1991
Long Range CIP Staging FY1992 Asbestos

$ 12,050,548 8,335,119 8,880,139
37,000,000 13,787,554 58,765,314 7,169,987 60,932,305 2,141,480 7,511,153 21,757,528 76,519,483 81,356,083 12,078,604 8,435,625 5,158,498
-036,976,832

$ 11,038,190 4,150,839 2,040,660
36,236,748 14,812,661 43,891,661 6,966,179 42,369,359 2,165,394 2,649,955 20,009,746
42,657,352
23,732,111
54,171
130,311 4,268,550
17,032 13,325,572

Totals

$458,856,252

$270,515,902

Capital Improvement Program funding per District's records:

State KCNISD

$141,139,286 129,376,616

Total

$270,515,902

18

SECTION IV
COMPREHENSIVE FINANCIAL ANNUAL REPORT Fiscal Year Ending June 30, 1990
The Comprehensive Financial Annual Report was the work of the certified public accounting firms Arthur Andersen & Company and Sellers & Company. The audit was conducted in accordance with generally accepted auditing standards. The audit included assessing the accounting principles used by the District and significant estimates made by management, as well as evaluating the overall general purpose financial statement presentation.
The auditors noted in their report that management was projecting an expenditure level in its operating funds for fiscal year 1991 in excess of its anticipated revenues and budgetary beginning fund balance. This deficit spending is projected for each year through at least 1994. It was also noted that management was developing a plan to reduce noninstructional expenses as well as seeking additional funding from the Court. However, there were no figures included in the report.
The auditors recognized the following contingencies:
1986-87 Magnet Base Budget Costs
The amount of base budget expenses disallowed by the Court relative to fiscal years 1989 and 1990 was $15,855,000. The Court, however, stayed its previous order requiring reimbursement to the State as the District has been unable to identify a funding source for these costs.
Subsequent to June 30, 1990, the Court identified an alternative funding source to repay the District's base budget liability. The Court ordered the 1988 and 1989 desegregationrelated protested taxes be paid directly to the State. This has been done.
The base budget costs for fiscal year 1991 continue to be charged to the desegregation programs. The 1991 budget for these 1986-87 magnet base budget costs is approximately $8,507,000.
19

Ca p ital Im provement Program Overruns
In some instances, the expenditures have or projected to exceed the court-ordered budgets. It was also noted that the $150 million 1988 leasehold revenue bond issue would not be sufficient to fund the District's projected share of future desegregation costs to be incurred under the Court's long-range capital improvement program. The debt service on this bond issue is being funded from the $1.95 property tax levy. A future funding source for the estimated shortfall has not yet been identified. Under the joint and several liability provisions of the court order, the State would be required to fund the shortfall.
Teachers Salary Increases
In September 1987, the Court provided the District with the funds to provide salary increases for all District teachers, including those teachers not within the desegregation program. The Court also ordered that the increase would be allowable as desegregation costs. The State contends that the increases exceeded the court-approved increase in fiscal years 1989 and 1990 by $686,000 and $860,000 respectively. The excess has been charged as desegregation costs. A difference of opinion exists between the State and the District as to whether or not the excess should be charged as desegregation costs.
Other Tax Allocations
As a result of the implementation of the $1.95 tax levy, certain taxes other than personal and real property tax were affected by the increased levy. The State questioned the allocation of the financial institution tax, state assessed railroad and utilities tax, locally assessed railroad and utility tax, and the tax on the premiums of domestic stock insurance companies between the operating and desegregation funds.
Subsequent to year end, the Court upheld the State's position and ordered that approximately $2,777,000 should be allocated to the desegregation fund. However, the execution of the order was suspended pending further court orders. This obligation has been recognized as a long term debt on the books of the District as accrued claims and judgments.
20

State Auditor's Findings

The Missouri State Auditor completed a special review of desegregation expenditures for fiscal year 1988. In her report certain desegregation costs were questioned, including the teachers' salary increases, goods and services purchases on an emergency basis outside normal district bidding procedures, and other costs. The Court has not ordered such costs to be repaid and thus, no liability has been established.

Special Desegregation Program Audits

At the request of the Desegregation Monitoring Committee independent auditors were employed to review certain desegregation programs. Disallowed program costs that resulted from these audits were approximately $125,000 which were funded by a district transfer from its operating funds to the desegregation funds in 1990.

Under the Financial Statistical Section of the report the following data was included:

General Government Expenditures by Function for the KCMSD

FYE 1989

FYE 1990

Instruction Support Services Administration Operation of Facilities Pupil Transportation Capital Outlay Debt Service Community and Adult Services

$ 99,897,653 51,869,281 15,578,832 21,342,481 21,553,272 47,440,105 17,885,581 7,279,355

$108,256,756 61,070,073 18,727,177 23,226,682 22,973,388 83,854,753 17,903,470 3,947,177

Totals

1.2822346.6160

UM.9.59j:16

The Library became a separate entity on November 29, 1988; therefore, only approximately one-half year's expenditures are included for FYE 1989 for Community and Adut Services.

21

General Revenue By Source

FYE 1989

Local Revenue County Revenue State Revenue Federal Revenue Received Other Districts Other

$132,028,086 2,499,162
108,053,878 19,099,508 262,492 452,108

Totals

$262,395,234

FYE 1990
$122,633,652 2,269,280
169,126,348 16,217,189 179,272 -0-
umasail

SECTION V
Memorandum on Accounting Procedures, Internal Accounting Controls and Other Business Matters
As a part of the Comprehensive Annual Financial Report for the fiscal year ending June 30, 1990, the auditors considered the internal control structure. Their consideration did not entail a detailed study and evaluation of any of its elements and was not made for the purpose of making detailed recommendations or evaluating the adequacy of the District's internal control structure to prevent or detect all errors or irregularities.
While the purpose of their consideration of the internal control structure was not to provide assurances thereon, certain matters came to their attention that was reported to the District.
A material weakness is a significant deficiency in which the design or operation of one or more of the internal control structure elements does not reduce to a relatively low level the risk that errors or irregularities in amounts that would be material in relation to the financial statements being audited may occur and not be detected within a timely period by employees in the normal course of performing their assigned functions.

22

Material Weaknesses in Existence but Corrected by Year End
Inadequate procedure to assure control over financial data input.
Routine balancing of data input between used departments and data processing was not established and followed on a timely basis.
Month-end processing of transactions was not coordinated between accounting and data processing to assure all transactions for the month had been processed and balanced.
General ledger trial balances by fund were not prepared monthly until the last two months of the fiscal year.
Monthly audit trails were not in place for all source transactions (e.g. payroll, payables, purchasing, stores issues, journal vouchers, etc.).
Monthly reports of transactions processed were not run and balances to the general ledger's account.
Material Weaknesses in Existence not Corrected by Year End
Program Managers were not charged with reviewing monthly reports for their areas of responsibility and assisting in correction and monitoring of charges to their programs on a timely basis.
Training of personnel in all aspects of the EDP system and its use was deficient, non-existent, or lacked proper documentation to help the employees.
Inadequate procedures to assure control over the recording, record retention and input of attendance data.
Physical inventories of books and supplies were not performed and reconciled to the perpetual records.
An up-to-date listing of the District's furniture and equipment is not currently maintained and reconciled to the general ledger.
Communications of District policy and procedures between the school and general office requires improvement. This includes the information needed to code and process transactions involving payroll, attendance, transportation, purchases, inventories, construction, furniture, etc. A lack of discipline and enforcement thereof exists and will be counterproductive
23

to the integrity of data processed until such procedures are adhered to.
Some of the more significant material weaknesses and the District's responses need to be pointed out to the Court:
Interim Review of Budget v. Actual Information
During the auditor's tests of budgets and review of budget department procedures, the following observations were made:
. Interim budget review of program, department and grant budgets is not done on a timely basis and instances where expenditures appear close to budgeted levels are not communicated to applicable program administrators on a timely basis. Recommend timely review.
. Interim reviews of budgeted versus actual revenues are not performed on a timely basis to ensure revenues are being received timely or notify program administrators or departments of revenue shortfall in order to adjust expenditures accordingly. Recommend timely review.
. Year-end reviews of budget versus actual performances and current year revenue and expense comparisons to the prior year are performed but not formally documented. Recommend formal documentation of these results which could be used in the budget process for the next year as well as in providing a summary financial overview to District management and the Board of Directors.
. Notification of expenditures in excess of budget are not communicated in a timely manner to the department, program administrator or school. Notification of budget overruns should be communicated immediately to the applicable program, department or school. Such communications should be documented in writing to verify budget reviews are being performed on a timely basis.
District's Response:
Budget versus actual reports are provided to program administrators on a monthly basis. Informal interim reviews are conducted with managers that are not meeting revenue projections for special revenue programs. In the future we will provide formal documentation and reports to verify budget reviews. Additionally, a standing committee (working program and budget committee) representing all departments and area superintendents has been formed and utilized to communicate budget versus actual exceptions.
24

DMC Comments:
During a meeting held to discuss the report the District was asked why the reports referred to above were not being used. The reply was rather vague but one got the impression that the program administrators were complacent about their responsibilities to manage their budgets. This attitude has been prevalent in the District since day one of the desegregation plan. There are exceptions, however.
Capital Improvement Program - Payment Application Review
Contractors are paid based on payment applications submitted for completed portions of the work. Many applications reviewed in the course of the audit were incomplete, filled out incorrectly or lacked supporting documentation. Examples include: change orders not reflected on the payment applications, detail data submitted did not agree to summary information on the payment application, detail data not clerically accurate. This indicated an inadequate review of the payment applications prior to paying the contractor.
Procedures outlining the review procedures to be performed and supporting documentation to be required before a payment will be processed should be followed more closely. Documentation of these procedures could be accomplished through a checklist.
District's Response:
The process of reviewing applications submitted for payment is four-tier:
1. The architect reviews applications and certifies that the percentage or work recorded is actually completed.
2. The PMT analyzes the supporting document provided and confirms the information submitted.
3. The District engineering department reviews the documentation and requests payment.
4. The OP payment center processes the payment.
This audit finding has been brought to the attention of each of the District representatives indicated above, and a more thorough examination will be made of payment applications submitted and retained in the CIP files.
25

We are in the process of revising our procedures for submitting and reviewing payment requests so that payments will be processed in a more efficient and effective manner. As a result, procedures outlining the review procedures to be performed and supporting documentation required will be developed.
DMC Comments:
We are now completing the sixth year of the Capital Improvement Program and the District is just now getting around to developing an efficient and effective procedures for managing the funds provided for the improvement of the physical facilities of the District. This is another indication of the lack of importance the District personnel place on management of the resources provided. The attitude has been prevalent throughout the CIP program that money is no object and the Court will provide all that is necessary, and no one will take any punitive actions if we are sloppy in our work habits. There is no strong feeling of responsibility to manage the funds in a cost-efficient manner.
File Maintenance
In addition to maintaining documentation for construction payments, the CIP department should also maintain key documents for each construction project (e.g. approved drawings, original contracts/change orders, final approvals and sign-off by District, etc.). The auditors noted instances in which key documents could not be located and were not filed in an organized manner. Lack of formal documentation creates the risk that projects will not be completed in accordance with District or Court guidelines.
Written procedures should be established and executed to ensure all required documentation of each project is maintained by the District.
District's Response:
The Oversight Team is in the process of drafting written procedures of the maintenance of construction payments and related project documentation such as change orders, drawings, etc.
DMC Comments:
Six years into the program and the District Oversight Team is just now getting around to developing procedures that should have been in place five years ago. Another example of the lack of competency of the District leadership and sense of responsibility.
26

Purchase Order Authorization
Purchase orders were not always properly approved. Contract employees rather than District employees signed the purchase orders and employees who generated the purchase orders were also approving them.
District's Response:
Procedures have been developed and implemented restricting authorizations of purchase orders to supervisory-level employees in the District.
DMC Comments:
Again this illustrates a do-nothing attitude until someone calls the District's hand on the inefficient manner in which they were managing the District's finances.
DESEGREGATION
Monitoring of Budget Line Items and Expenditures
The auditors noted several instances where actual expenditures exceeded the budgeted amount. The risk exists that the District would become financially obligated for budget overruns.
They also noted several instances in which desegregation expenditures were miscoded to an incorrect program year account code. Improper coding results in the misstatement of expenditures and also creates the risk that expenditures would be disallowed by the Court.
The exceptions noted above as well as observations noted during the audit indicate that procedures to monitor budget line items and desegregation expenditures are not operating effectively. Prior to the authorization of expenditures, the budget should be reviewed to ensure funds are available. The personnel charged with the duty of coding expenditures to the applicable program years should be aware of the proper account codes for the different program years, as well as the cut-offs of the program years.
On an overall basis, each program director or individual responsible for desegregation expenditures should receive budget versus actual reports on a timely basis. These reports should be reviewed by the program director to ensure program expenditures are reasonable and have been charged to the correct account code. Any discrepancies or unusual fluctuations should be investigated and reconciled on a timely basis.
27

District's Response:
The budget department monitors expenditures against budget. Budget determines if the account code is correct, if dollars are available and if, because of timing of revenues or other reasons, an expenditure may exceed budget for a short time only. Although directors and program managers are constantly educated in appropriateness, coding and transfer procedures, the extreme complexity of the account code structure caused by the reporting requirements of the desegregation plan has resulted in programs which are almost unmanageable.
Budget has recently established a fund control section which will begin to deal with the potential problems identified. Additionally, if the recent court filing for the establishment of a single budget is approved, the risk of miscoding expenditures will be dramatically reduced as the single budget will be much more manageable.
DMC Comments:
The committee is adamantly opposed to a single budget for the District. We are of the opinion that it is not in the public interest to make the District a permanent ward of the state, which would be the outcome of the single budget concept. The District can do more than it has to make a sincere effort to reduce the budget line items and simplify the budget. Also, the District is just using the unmanageability of the budget as an excuse for its directors' and program managers' failure to do their jobs responsibly.
The committee has not attempted to review within this report all of the material weaknesses noted by the auditor, but to highlight some which are illustrative of the problems which still exist in the District. The attitudes of many employees still are negative toward the desegregation plan and until these attitudes change the weaknesses will remain. The District has a hard time focusing on the real causes that underlie the weaknesses, and is prone to give lip service to solving the problems and continue to focus on the symptoms.
Some of the other weaknesses noted by the auditors dealt with: data processing; general fixed assets; general ledger; inventory; investments; payroll/personnel; purchasing; resource allocation; activity funds; attendance reporting; and transportation reporting.
28

SECTION VI - DMC'S FINANCIAL ANALYST SPECIAL REVIEWS
During the course of the year situations arose or matters were brought to our
attention within the District that the committees of the DMC were of the opinion
warranted further investigation or interpretation. A brief narrative follows on each of the
concerns that were reviewed:
Internal Audit Staff
In reviewing the District's internal audit department the suggestion was made that the reporting lines of authority should be revised to permit more independent action. At the time of the review the staff reported directly to the superintendent, and concentrated most of its effort in auditing individual school activity funds. While the integrity of these funds should be assured by District policies and procedures from theft or abuse, the reviews of $10,000 funds for 100 schools pales in comparison to the combined $250 million dollar per year operating and desegregation budgets, as well as the $100 million per year capital improvement program.
To be a truly independent tool for improving District efficiency and precluding waste and abuse, the internal audit staff should be reporting independently to an audit subcommittee of the Board of Education. This reorganization would provide three different improvements in the internal audit function:
1. Management may not indirectly or directly influence the assignment or conclusions of the audit staff, who would be actually reporting on management successes or failures.
2. Additional operating authority and access is conferred upon the internal audit staff by the delegation or authority and direct review of projects by the audit subcommittee of the Board.
3. Greater accountability for resolving audit problems or system weaknesses would be demanded of District staff.
One major potential problem with this structure results if the Board decides to politicize the actions of the internal audit staff in order to portray an individual, group of individuals, or department in a bad light for its own personal reasons. The risk of this happening in light of the intense media scrutiny is more than offset by the independence provided by the reorganization. This is underscored by the overwhelming acceptance of this internal audit structure throughout the private sector.
29

Furniture Audit
The review of capital furniture expenditures disclosed two overpaid purchase orders to H & W Equipment Company totalling over $130,000. The District has reconciled the purchases, deliveries and invoices, and has entered into an agreement with the company to be repaid for the overpayment. (DMC note: As of the date of this report the District has not received repayment and at last request could not assure the DMC when this would be done. Approximately eight months have passed since the DMC analyst uncovered this overpayment.) The District chose to absorb the cost of the overpaid purchase orders into its operating budget, to be subsequently repaid. The District extended a credit to the capital improvements fund in the amount of $131,158.87. Interest totalling $11,759 was also reimbursed to the CIP fund. The State was given credit also in the amount of $65,579 as its 50% share of the cost, which had been paid through the expenditure drawdown procedure.
The problems that gave rise to the above overpayments still exist as material weaknesses in district procedures. The District had suggested implementing a review system for all large/material purchase orders in order to identify any potential problems. At the time of the review in January 1991, this had not been done and no assurances had been given that it would be done. Accordingly, the quantity override system weakness will continue to exist.
Extended Day Audit
This review, which was an extension of the previous review of several selected long range magnet school extended day programs, was started in the Fall of 1990. The previous review of selected schools resulted in the identification of expenditures which were in the opinion of the DMC inappropriate extended day costs. Consequently, the DMC took exception and requested that the District reimburse the desegregation budget for these costs. This was done.
The current review was completed and presented to the DMC in March 1991, and to the District for its response. The response as of the preparation of this report has not been received. The review revealed similar findings as did the previous report, and for Years Three and Four, $32,457 and $44,859 inappropriate expenditures had been spent. Pending receipt of the District's response, the DMC will reserve taking any action.
30

Computer Sole Source Procurements

This review was initiated by the DMC as the result of allegations made against the District that computer purchases were made without going through the competitive bidding process, which resulted in the District paying more than was necessary.

Certain procedures were followed in the development of the review which included:

Obtaining copies of the purchase orders, requisitions, and related specifications for sole source procurement for three high schools;

Specifications for 51 line item purchases, including computer systems, peripheral and accessory equipment, software, and network cabling and installations were reviewed.

For comparison, four large direct-channel vendors were selected with gross unit sales in excess of 100,000 unit sales per year.

Equal or better systems were identified than those specified by the District, and compared purchase prices to determine the cost effectiveness of the sole source procurement. In those instances where systems were not completely identical, prices were adjusted up or down to reflect the relative retail cost upwards or downwards. Where comparable pricing could not be obtained, those line items were excllulded from the review.

The review results were as follows:

Total for 51 line items: Total requisition value Actual purchase order value Percentage tested

$1,016,486 1,072,530 78.2%

Reviewed values:

Requisition value

Actual purchase order value

Purchase order reviewed

Lost savings, per review

Hi

Lo

$ 794,803 827,975 77.2%
$ 288,738 117,358

The lost saving as computed represent only the adjusted prices available for those particular vendors selected for comparative purposes.

31

The sole purpose of the review was to attempt to show the District that sole source procurement was not cost-effective and not in the best interest of the District or the State. Although, when discussed with all parties, the District attempted to discredit and personally attacked the auditor. We believe the point was made that the Board by permitting sole source procurement was party to the abuse of discretion that occurred in this matter.
Other Non-Audit Projects - Not Yet Completed:
Review of Recruitment Efforts
A request was made to evaluate the effectiveness of the District's $100,000 personnel recruitment effort.
Personal Service Contracts
It was brought to the attention of the DMC that personal service contracts had been issued to employees of the District for services outside their regular positions which, in essence, paid them the regular full salaries for more than one position, i.e. two directorships.
Travel Advance Procedures
The DMC was concerned that the travel advance procedures were being abused and that the proper reviews were not taking place. The original conclusion found that as long as weekly balancing procedures are performed and adequately supervised, the procedures in place should not allow inappropriate charges to the wrong fund, or allow travel advance reimbursements to be credited to a different fund than where the travel originated. This procedure applies only to District employees.
Board of Education travel advances and vouchers are reviewed by the secretary to the Board only, and cannot be questioned by others. As situations arise which, in the opinion of the DMC, warrant an audit, investigation or review, the services of an outside independent auditor will be utilized.
32

SECTION VII - COMMENTARY The Budget Subcommittee has been an active committee this past year with all members participating. When practical to do so, all parties have been invited to committee meetings. On rare occasions where the internal workings of the District were discussed, it was determined that this could be handled in a more candid and forthright manner in closed session. This has proven to be a viable and successful approach. Over the years the committee has been able to establish a positive rapport with District personnel, especially in the area of financial services. We are of the opinion that many individuals in the District are working hard and putting in many hours each week in an effort to correct the ills that have befallen the District through mismanagement. We are not always in agreement with the approaches that are proposed and are not hesitant in voicing our opinions and suggestions. We have found some of the people responsive to our suggestions, and others who take offense. The Budget Subcommittee regularly monitors the placement of purchase orders as they are reflected in the Consent Items on the Board of Education's meeting agendas. The members are also very concerned about change orders to construction contracts as these seem to be more than normally necessary. It is apparent from reviewing the circumstances which give rise to the change orders that inadequate planning has taken place as well as appropriate review prior to seeking bids. Many of the change orders include omissions and errors in architectural design, failure to adhere to building codes and regulations, and changes in the structural needs of the building after construction has started. The committee is particularly concerned that those persons responsible for errors should bear the cost of correction. This is not always the case and the committee is of the opinion that the District and the PMT do not put forth the required effort to see that the District is reimbursed for the additional expense. Since the State shares the costs, the State is being penalized for this lack of effort. The committee also looks closely at hiring outside consultants which the District is prone to do whenever a new task comes before it, rather than calling upon its own personnel to do the job. We have yet to receive a logical explanation for this approach to problem solving. We usually get the response that "our people are too busy." Too busy to
33

do the District's work? It is about time that somebody sets some priorities for what has to be done to get and keep the District moving in a positive direction.
Recently the District proposed to hire consultants for $175,000 to make a space needs study. Another case involved contracting with the Urban League for $150,000 to train District personnel in handling furniture related to staging for the next year. These two proposals we understand are on hold.
Still under consideration is a contract with Servicemaster and Woodley Building Maintenance to take over the maintenance and custodial operation of the District at a start-up cost in excess of $300,000, money which the District does not have. Incidentally, this contract was not competitively bid which has raised some concerns in industrial circles and from companies that would have liked to have had an opportunity to bid.
The Board of Education recently approved signing a contract, upon the recommendation of the new superintendent, with IBM at a cost of $750,000 per year for three years to finish upgrading the data processing system. This process has been going on for four years at a cost in excess of $2 million, the bulk of which was provided by The Hall Foundation. They became discouraged with the progress being made and withdrew.
This contract, which has a direct effect upon all of the schools and their reporting of attendance, has been taken exception to by some high schools as making their reporting function more difficult at a great deal more expense. This matter is not yet closed. With a district that is admittedly millions of dollars out of balance, to engage in expensive long term contracts is ludicrous.
In the committee report for Year Four the following statements were made: "The District has a major problem in that more attention needs to be given to eliminating the significant number of pieces of paper which require processing. The District has lost control over its system of requisitions and purchasing. Although the problem is recognized by some persons, it is certainly not true of those persons who are in a real position to affect change. The answer does not lie in the employment of additional personnel." These statements still hold true in Year Six and are supported in the management study by Deloitte & Touche.
34

Over the years the committee has attempted to reach an agreement with the District on closing out each fiscal year promptly. We thought we had an understanding that Year Six would be closed as of June 30, 1991, with all purchase orders cleared and payments made by October 31, 1991. Each year we have been asked for an extension of time so that the District could expend the funds allotted for that year, even though the fiscal year had ended. We were assured that if we granted such an extension for Year Five, Year Six would be closed on time. Comes now the District asking that it be granted a 60day extension to issue purchase orders after June 30, 1991, and a 60-day extension to pay its bills. The District has continually failed to correct the problems that give rise to the need for such an extension. This has been going on ever since the inception of the desegregation plan and will continue to go on as long as the DMC agrees.
The Joint Review Committee, composed of members of the Budget and Education Subcommittees, has been very active this year. It was primarily set up to review budget transfers and Effective School program expenditures. However, it has taken a more broad role in dealing with the requests for budget carryovers and related matters as well as the budget transfer process.

SECTION VIII - RECOMMENDATIONS Some of the recommendations may seem redundant from previous years, however, they are still relevant today.

1.

The KCMSD should be required to encumber funds (issue formal purchase orders

for the current fiscal year) no later than 60 days prior to the end of the

fiscal year, June 30th.

2.

The KCMSD should be required to clear all outstanding obligations of record

on June 30th of each fiscal year within 120 days subsequent to that date, and

no payments made after that date without the express approval of the DMC.

3.

The KCMSD should be required to take such action as is necessary to provide

for much greater internal auditing to protect against possible waste, abuse

fraud in expending the resources provided by the Court. As long as millions

of dollars are allocated to the desegregation remedy, the opportunity for

misuse is prevalent.

35

4.

The KCMSD should be required to see that the superintendent and his cabinet

assume their rightful responsibility to see that the operating and desegregation

funds are spent in a cost-effective manner, and that budgets are managed properly.

With the hiring of a new superintendent this requirement is a necessity.

5.

The KCMSD should be required to present a long-range plan for funding the

school district after the Court steps aside and ceases to provide the funds.

6.

The Court seriously consider beginning the weaning process by making less

resources available to the District in those programs in which the District

has demonstrated that it cannot utilize all the resources in a cost-effective

manner.

7.

The KCMSD should be required to submit a plan for the implementation of the

findings in the Deloitte & Touche Management Study.

36

DESEGREGATION SUBCOMMITTEE PRELIMINARY REPORT TO THE COURT FOR YEAR SIX

Members
Dr. James Oglesby, Chair Javier Perez, Jr. Susan Stanton Carl DiCapo

Contents

INTRODUCTION

SUMMARY OF YEAR SIX

I.

1990-91 Non-Minority Recruitment

11_

Transportation

III. Capital Improvements

IV. Purchasing

V.

Enrollment Data

37

INTRODUCTION Year Six of the desegregation monitoring process began with focus on the global aspects of the implementation of the court-ordered desegregation plan. Recognizing that the Court approved desegregation plan is a "bottom up" plan targeting school improvements at the building level, the Desegregation Subcommittee directed its attention to the administrative organization and its effectiveness in implementing the desegregation plan. The KCMSD's administrative organization lacked personnel in some very key positions. The District continues to have difficulty in the areas of personnel, procurement, transportation, and the timely implementation of the capital improvements plan. Superintendent Garcia began Year Six of the monitoring process expressing a great deal of optimism that the effectiveness of the administration was basically good, that the organization was addressing the implementation of the desegregation plan and would eventually achieve success. Upon closer review, the organizational structure was not providing direction to deliver quality services to the buildings and ultimately to the classrooms. The District did not have key administrative personnel in place at a very critical time in the planning process for opening school in the Fall of 1990. At least two Area Superintendents had resigned and positions such as the Executive Director of Human Resources (Personnel), a Director of Recruitment and Marketing, and a Director of Transportation remained vacant or filled by an interim. The new administration had begun to fill these key positions toward the end of Year Six, although, the Desegregation Subcommittee has expressed dissatisfaction with a number of appointments and what appears to be an organization that moves closer to a "top down" administration.
38

SUMMARY OF YEAR SIX

I.

1990-91 Non-Minority Recruitment

The year 1990-91 was a difficult year to determine whether desegregation was

actually occurring in the KCMSD, Year Six of the court-ordered plan. The District still

does not have systems in place that can accurately track students. Desegregation

Subcommittee members assess that progress is slow and below expectation due to the lack

of attention given to student retention. In addition, any progress in enrollment and

recruitment to some popular elementary magnet schools does not carry over to the middle

and high schools.

In the DMC's July 1990 report to the Court, the District reported data which

indicated that the total student membership was 34,850, with 26,065 minority students,

8,785 non-minority students, yielding a 74.8% minority student population. At the

September 20, 1990 DMC meeting, after the start of the 1990-91 school year, then

Superintendent Garcia reported that the "overall" minority enrollment for the District was

74.6%. In a November 9, 1990 Enrollment Data Analysis report to the DMC, the minority

enrollment for the District was listed as 74.7%.

The KCMSD reported to the DMC that of the 1,100-plus non-minority students whom

applied for admission, 794 were placed, but only 545 actually showed up. Significantly, the

545 breaks down as 106 high school, 135 middle school, and 304 elementary school. This,

if accurate, indicates that attrition continues to occur at a high level. The District

reported that the four top reasons for student withdrawals were: (1) students wanted to

stay in neighborhood schools; (2) safety; (3) transportation; and (4) distance from home ttoo

school.

The Desegregation Subcommittee believes that the recruitment effort lacked

qualified and strong leadership in Year Six, however, there is optimism about the potential

for improvement under the new Executive Director. It is worth noting that the publicity

elements of the recruitment campaign received recognition by several industry and

professional organizations for their excellence. This and ongoing observations suggest that

it was not the "public campaign" that was weak -- but the execution of the effort at all

levels. This would include the recruiting office, school buildings, and magnet office.

39

I
Parents and students whose awareness and interest were raised by the publicity campaign and then made some contact with the District were likely to be disappointed by the experience that followed. In summary, it must be noted that recruitment outcomes for the KCMSD were clearly less than satisfactory. II. Transportation
Transportation, a vital component of the desegregation plan, continued to be a problem area. The Desegregation Subcommittee began identifying issues early in Year Six to determine whether concerns were being addressed in a timely fashion to ensure that the opening of school would proceed in an orderly manner.
The much proclaimed Edulog system was only partially implemented. Initial routing and pick up problems, while fewer than in previous years, remained high enough to generate negative publicity and parent distrust and concern. An equally alarming issue which arose, however, is the administration of contracts, accounting, audit practices, and billing procedures, all of which combine to generate a sense of mistrust and belief that there is mismanagement which costs the taxpayers dearly. III. Capital Improvements
Once again the CIP program remains behind schedule as the KCMSD continues to experience delays in land acquisition, bidding and construction. The Desegregation Subcommittee, throughout Year Six, has questioned the number and amount of change orders on projects in an effort to determine the underlying reasons behind this repeated occurrence. N. Purchasing
Minimal progress was made in the processing of purchasing orders, however, key supplies were still not available in many schools by school opening. The Desegregation Subcommittee viewed these shortcomings as serious obstacles in the District's ability to attract non-minority students to the magnet schools, thus impacting negatively on the desegregation of the KCMSD. It is clear that recommendations such as those set forth in the audit by Deloitte & Touche must be put in place if this structural problem in purchasing is to be addressed.
40

V. Enrollment Data The Desegregation Subcommittee continues to monitor the following four major
components in determining whether desegregation is actually occurring in the KCMSD:

1. Changes in racial make-up of the student population in KCMSD.

2. Changes in racial make-up of the 90% or more minority schools.

3.

Compliance of KCMSD with the desegregation requirements at magnet

schools with specific goals of 60% minority and 40% majority.

4.

Compliance of KCMSD with the desegregation requirements at magnet

schools with specific goals to reduce the percent of minority students

attending a school by at least 2% per year.

Total Student Membership

Majority Students

Minority Students

Total Students

% Minority Students

1987-88 1988-89 1989-90 1990-91

9,172 9,148 8,785 8,891

26,257 25,974 26,065 26,207

35,429 35,122 34,850 35,098

74.1% 74.0% 74.8% 74.7%

The above figures represent an increase of 106 majority students and an increase in

minority students of 142, with a total increase of 248 student population for 1990-91. The

percentage of minority students declined by .1%.

Ninety Percent (90%) Minorit y Schools

Elementary

Secondary

Total

1987-88 1988-89 1989-90 1990-91

20

5

25

16

5

21

13

8

21

11

5

16

The District appears to be making modest progress toward reducing the total number of 90%-plus minority schools. The total for 1989-90 was 21, reduced by four to total 16 for 1990-91. A breakdown of the 16 remaining schools that are over 90% for 1990-91

41

include nine traditional elementary schools. The KCMSD would be well advised to review the status of the traditional elementary schools and access the effect of magnetizing these schools, with special attention given to theme and location.

Racial Compliance Standard

Total Magnet Schools

Meets Goal

Does Not Meet Goal

Elementary Schools

35

16

19

Middle Schools

11

0

11

High Schools

10

3

7

As can be seen from the above table, 19 (54%) elementary schools did not meet their racial quota; all (100%) of the middle schools failed to meet their racial quota; and seven (70%) of the high schools did not meet their racial quotas. These figures further demonstrate the District's difficulty in retention and recruitment of non-minority students beyond the elementary level. In fact, it must candidly be reported to the Court that after six years of effort and massive expenditure of resources the KCMSD had made only minimal progress toward the desegregative objectives ordered by the Court. The Desegregation Subcommittee attributes these shortcomings both to serious incompetiness in the administration in the KCMSD and also to less than full commitment to the desegregation goals by a signficant number of personnel in the KCMSD.

42

EDUCATION SUBCOMMrI i t.t. PRELIMINARY REPORT TO THE COURT FOR YEAR SIX

Members
Dr. Miguel Sancho, Chair Deborah Neal John Cozad Chuck James

Contents

I.

INTRODUCTION

II. ADMINISTRATIVE TRANSITION A. Administrative Infrastructure - Procurement B. Administrative Infrastructure - Personnel

III. STAFFING

IV. EVALUATION

V. ACHIEVEMENT

W. LINCOLN ACADEMY

VII. SPECIAL EDUCATION

VIII. SUMMER SCHOOL

IX. NEW THEMES

X. DISTRICT-WIDE TASK FORCES

XI. EFFECTIVE SCHOOLS

XII. FACTORS AFFECTING PROGRAM IMPLEMENTATION

XIII. NEW PRORAMS

43

I. INTRODUCTION In many respects, the past experience of the implementation of the desegregation plan was, for the most part, repeated this year. The physical facilities, equipment and other educational resources provided by the Court move the KCMSD toward the ranks of the best equipped school district in the region, if not the country. The conversion of the material resources into higher levels of achievement and desegregation continues at a slower than acceptable pace, and it must be reported that on standardized test measures the scores in the KCMSD for 1990-91, there were more cases where the achievement of students on the ITBS declined than where there was improvement. As this committee has observed in the past, several factors have slowed the progress expected from the investment in the educational activities and plant. First of all, the lack of adequate administrative infrastructure to support so ambitious an effort continues to be a significant factor in the partial implementation of the plan. Secondly, the need to place students in some school regardless of their interest, commitment and preparation for a given magnet theme complicates the instructional task at the school and classroom level in the magnet school. Thirdly, the retention of seniority consideration in assigning administrators and teachers to magnet schools too often leads to mismatches between the demands of the job and the capacity of the personnel. Fourthly, the degree of attention paid by the Board of Education to non-educational factors in decision-making distracts from the main task. Fifthly, the lack of an adequate and effective evaluation process for administrators and other staffprovides limited accountability. Lastly, the continuing sense of impermanence, transition and crisis which accompanies the search and appointment of a fourth superintendent during the period of the desegregation plan absorbs the energy of administrators at the Central Office and school level. Despite the factors which interfere with full and successful implementation of the court orders, there continues to be a steady improvement in the quality of the educational opportunities offered the children of the KCMSD. In a number of cases the quality of program, level of instruction and facilities combine to make District schools superior to what is available anywhere else in the metropolitan area. But it also must be noted that
44

based on academic performance the KCMSD continues to offer the worst of education in the metro Kansas City area.
The problems described above have been ongoing and described in previous reports to the Court. Although it is noted the KCMSD continues to be less than forthcoming in acknowledging serious deficiencies and then addressing them forthrightly, one underlying factor contributing to the problems has been the great number of tasks which have needed to be accomplished in a relatively compressed time period. The District is now headed by an administration which needs to get a large constellation of issues under control. Some deliberate slowing of the pace of implementation might result in a higher quality educational product.
RECOMMENDATION: The District and the Court consider a revision of the time frame for the implementation of the Long Range Magnet Plan (LRMP).
II. ADMINISTRATIVE TRANSITION Pursuant to court orders the DMC involved itself in the monitoring of the process by which the Board of Education selected its new superintendent. The DMC and the Education Subcommittee in particular have examined the new administration's reorganization chart. It has also had conversations with the individuals named to fill key positions on the chart. The initial concept driving the administrative chapters of the LRMP rested on the notion that the integrity of the magnet schools and programs required administrators fully sold on and committed to magnet theme implementation. (Magnet school is a term with several definitions: In the LRMP magnet programs are tied closely to an academic area or discipline more than to an educational delivery system or clientele.) The original administrative structure ordered by the Court as part of the LRMP set up a fairly complete administrative apparatus for the magnet schools to exist along side the traditional school structure. The history of magnet programs is that, in most cases, after an initial effort the magnet schools slowly lose their distinctiveness, becoming less and less distinguishable from enrichment programs of some sort. This structure was intended to guard against this loss of focus.
45

Many members of the DMC questioned the administrative reorganization implemented by the last administration because it represented a move away from the structure which would protect the special character of magnet schools.
The present administrative organizational chart contains elements which might be seen to move still further from the original concept in a number of ways.
While the new administration is acknowledged to have experience in magnet school education, it is not necessarily in the type of discipline specific magnets present in this case. The strategy being implemented by the current head of the district is to select generalists for the highest level administration. Similarly, most of those with line authority in the instructional apparatus have been described as generalists, while individuals with specific magnet theme expertise are to be in a consulting relationship with those in authority.
It may be that the integrity of the magnet programs can be maintained under this setup, but it is much more probable that the individual specialized theme justifying massive expenditure of resources will be lost.
A commitment to full implementation of academic theme magnet school program, such as that detailed in the LRMP, might require some modification in the organizational structure now in place. There also needs to be a review by the KCMSD of the staffing patterns that have moved from emphasis on magnet theme specialists as administrators to a greater emphasis on generalists as administrators.
RECOMMENDATION: The administration should evaluate the administrative structure with respect to its effectiveness in supporting a discipline based magnet program. This is especially true for the organization under the office of Associate Superintendent for Instruction. RECOMMENDATION: Administrative personnel with commitment and background in discipline based magnet programs should be given greater line authority.
A. Administrative Infrastructure - Procurement. The study submitted by Deloitte & Touche details what has been reported to the
Court in the past. In particular the difficulties in getting all necessary equipment and supplies to the school absorbs the energy of the principals and teachers who must make up
46

the differences. New magnet programs in particular continue to be vulnerable to shortages of this kind (e.g. Holliday Montessori). The DMC has asked the Court to intervene more than once to give priority to the needs of the educational program over the convenience of the procurement process. Nevertheless, the educational impact of late deliveries and misplaced orders continues to be severe. The structural problems remain. The likelihood of shortfalls in this area, with continuing negative fallout on the education of the students, is very great.
RECOMMENDATION: The Court should cause the KCMSD to implement the Deloitte & Touche, or similar restructuring of the procurement operation.

B.

Administrative Infrastructure - Personnel.

While the KCMSD does include a number of excellent teachers the intention of the

LRMP was to revitalize the teacher corp of the District, in part, by attracting individuals

with varied experience from outside the District. The intention of the Court in ordering

improvements in the salary structure was to increase the attractiveness of the District to

non-Kansas City area residents. However, the last school year did not see a marked change

in the pattern of recruitment of teaching personnel. In fact, the District has been without

a top administrator in the personnel operation for a very long period. An appointment to

this key position has been recently made.

Some improvements have occurred. The Teacher Tuition Reimbursement Program

(TTRP), while getting off to a slow start, has this year begun to show results in the

recruitment and placement of new teachers. This program and the Teacher Tuition

Assistance Program (TTAP) have had more clearly defined goals, more consonant with the

intentions of the court orders, and have been better administered than previously. The

Montessori programs, in particular, have benefitted from the use of these programs.

However, a lack of a coherent Staff Utilization Plan has detracted from the overall

progress in preparing the teacher corps to participate fully and effectively in the renewal

of the district.

47

M. STAFFING The existing patterns of staffing continue to produce superficial implementation of magnet themes at many schools. Principals and teachers assigned on the basis of seniority or other-than-educational criteria struggle with generating acceptable educational plans for new magnet schools. School administrators not knowledgeable or committed to magnet themes spend their energies on projects not related to implementation of the theme. As in previous years, administrative resources needed elsewhere are drawn in to cover the deficiency, producing deficiencies elsewhere. It should also be noted that the latest reorganization process used by the KCMSD to fill a number of senior positions did not include legitimate national searches as required by the Court. It is clear that the expectation was that the 1990-91 salary increase would provide an opportunity for the KCMSD to be more competitive at the national level in attracting outstanding talented individuals for administrative and teaching positions. It is even more apparent that legitimate national searches are required in order to have a chance of attracting the best talented persons available for the positions. Communications and data available from the KCMSD demonstrate that KCMSD failed to adequately conduct national searches for senior positions in the reorganization. We note the bargaining unit and the administration for 1992-93 have come to an agreement which may modify the existing seniority requirements, and allow staffing of magnet schools to proceed with attention to magnet theme needs.
RECOMMENDATION: Serious commitment to implementation of the LRMP will require more attention to the magnet theme background and commitment of principals and teachers at magnet schools.
RECOMMENDATION: The District needs to take seriously the court orders regarding magnet theme preparation of school principals.
IV. EVALUATION The District and the DMC have relied to a considerable extent on the products of the Evaluation Office of the District. These evaluations have been produced on a program by program basis adhering to the schedule ordered by the Court in the LRMP. This internal form of evaluation has been remarkably objective, given the politicized environment of any
48

schcol district. The findings of the District's evaluators have by and large been confirmed by the independent observations of a number of outside evaluating agencies, including the DMC.
This program by program evaluation, as ordered by the Court, continues to be a necessary tool for the review and modification of the several aspects of the desegregation orders. Many of the programs ordered by the Court are radically different from one another and in some cases singular, if not unique. The formative and summative reviews are a basis of changing, extending or curtailing programs which have absorbed large quantities of material and financial resources. While general, undifferentiated evaluation modes may also have utility, program by program review remains a necessary check.
The Court has approved the employment of two educational evaluators by the DMC. These positions have become increasingly necessary and valuable as the scope of the task of monitoring has increased. The DMC plans to retain and consider some expansion of these positions.
V. ACHIEVEMENT Unfortunately, the magnet programs, effective school, class size reduction, summer school, etc., along with a 20% increase in staff salaries, have not produced the results hoped for at this time. Achievement scores have not advanced district-wide as one would hope, given the resources available. Moreover, achievement in specific areas do not correlate well with magnet theme. Math and science scores are not necessarily higher at math/science magnet schools, nor do communications magnets yet produce higher reading scores. The falling achievement levels among the highest achieving quartile of the student population in both secondary and elementary schools are particularly disturbing. The District is apparently not providing for the brightest and most able students. It is likely that lack of full implementation as envisioned by the LRMP has a great deal to do with this. The transition period in a plan of this magnitude is a long one. The District plans some new initiatives for raising achievement levels, although it must be acknowledged that achievement scores for 1990-91 were abysmal at grades above
49

Grade Three. In fact, KCMSD reports that 72% of the cohort groups on standardized tests achieved growth of less than one year during 1990-91. Intervention programs have been tried in various forms and at various levels in the KCMSD (SWAS, Early Childhood, Chapter III). These programs have been generally modestly successful in improving achievement levels among the students participating in them. The programs generally involve alternative teaching modes, a cadre of specially chosen and committed teachers, and highly favorable student/teacher ratios. One experimental program at the middle school level (where achievement falls sharply) involves a one-on-one relationship with a non-teacher, volunteer mentor. This program has been especially successful in turning the achievement levels of the students involved around and of raising the academic climate of the school in which it is housed.
Programs such as these, when implemented appropriately, can add to the desegregative attractiveness of the schools in which they are housed in particular and of the system in general. Higher level of academic achievement give validity to the discipline based magnet themes.
RECOMMENDATION: The District should continue to develop intervention and alternative programs aimed at raising the achievement levels and academic climate of schools. In reviewing such programs as part of the desegregation effort, the Court should consider them to be desegregatively attractive in themselves and as a potential factor in increasing the attractiveness of the magnet system overall.
VI. LINCOLN ACADEMY The admissions criteria for Lincoln Academy continues to be based on random selection from the pool of applicants above the 50th percentile on certain standardized tests. In practice this has led to admission of academically marginal students for Lincoln Academy, a high rate of demission, and the expenditure of large resources of staff time and effort on a lower achieving portion of the student body. At the same time capable minority and non-minority students have been denied the enriched academic environment Lincoln provides due to the luck of the draw.
50

A more rational and useful admissions policy might include higher standardized test scores and other academic factors which brings in the most qualified minority and nonminority students.
RECOMMENDATION: The District should revise the admission policy for Lincoln Academy to reflect higher admission standards.
VII. SPECIAL EDUCATION The KCMSD is under court order to include partially abled students in the magnet program as much as is practical given the demands of particular programs. The District this year moved, with some prodding by a number of constituencies, to comply with this requirement and with other federal requirements. Space constraints led to some anomalies and perhaps to clear violations of aspects of the LRMP. The District has expressed a commitment to continue to move toward mainstreaming. The Education Subcommittee will expect to receive reports from the District and the State relative to progress and new directions this effort will take.
VIII. SUMMER SCHOOL The summer school program for 1990-91 continues to be an eclectic program whose successful implementation is hindered by the selection of facilities with no or partial airconditioning, the use of non-regular school year principals, and a traditional curriculum which emphasizes remediation, not enrichment. The elementary schools appear to have some focus with their instructional programs, but there is little effort to use summer school as a recruitment tool to attract private or parochial in-district students or majority suburban students. Clearly, recruitment efforts need to also continue at higher grade levels to increase the majority student enrollments and to combat student attrition. The middle school program has presented the District with some serious challenges. In fact, the increasing number of marginal or retained students at the middle and senior school level requires that the District re-evaluate its goals to attract new students to the District via enrichment courses. Absenteeism is a serious problem for many of these students during the regular school year and continues during summer school. Thus, low
51

average daily attendance and disruptive student behavior suggest that the instructional goals are not being met, nor is the environment or program desegregatively attractive to non-district students.
At the senior level, summer school enrichment is limited to one to two regular school year electives and is designed for the student who wants to acquire or needs additional course credits.
IX. NEW THEMES The intention of the Court in ordering a magnet program was to have the KCMSD offer programs unique in the metropolitan area and attractive to non-minority parents. The initial thrust of the magnets was largely toward academic based themes: science, math, fine arts, engineering, foreign language, computers. Some other themes tied more closely to mode of instruction than to a discipline (e.g. Latin Grammar) were also implemented. As the District approaches a review of the magnet schools programs and considers implementing "magnetizing" of new schools, the Court might well consider that desegregative attractiveness lies in a number of programs and educational delivery modes not tied to specific academic disciplines. The Court has approved a number of programs along these lines. The latin grammar theme has been mentioned, the greek academy - in one of its variations, is another, some alternative/intervention programs have come forward. In addition there are other innovations (e.g. with length of day, with calendar) which might prove to be highly attractive to non-minority parents not now patronizing the system.
X. DISTRICT-WIDE TASK FORCES Since its formation, the district-wide task forces have matured and begun to evaluate long-range program issues (e.g. curriculum development for K-12, staff development, program vision and articulation, teacher and student recruitment, etc.). The task forces have become dynamic forums for uniting theme principals and teaching staff to share success and elicit group support to correct or ameliorate program shortcomings. Overall, the task force chairpersons have been excellent facilitators this year for
52

accomplishing "behind the scene" improvements or building-level support for magnet program implementation. It is hoped that the task force program assessments, recommendations for improved instruction and staff enthusiasm for the theme are not neglected as KCMSD moves towards a reorganization.
XI. EFFECTIVE SCHOOLS For the last few years, Effective Schools proposals have maintained status quo efforts. The former superintendent issued directives to school principals to improve tests at certain grade levels which traditionally have had low scores (e.g. third, fifth, ninth and twelfth grades). Thus, priority was given to working with remedial students in these grades. The District has indicted that it is currently evaluating the use of Effective Schools monies and measurement towards school-based goals in 1991-92. The new basal for reading is literature-based, and teachers and reading resource staff are anxious for inservice training. At this time it is clear that the expected realization of the Effective Schools program (achievement at grade level by students) has not been achieved.
XII. FACTORS AFFECTING PROGRAM IMPLEMENTATION Recruitment efforts have been intensified since a new director was brought on board and recruiters are out of the Central Office and into the schools to direct tours. The recruitment strategy is based on individual schools and not on specific themes. Consequently, inter-school, not intra-school, competition occurs particularly when KCMSD non-minority enrollments begin to decrease at grades six and nine. Theme loyalty is a critical issue for themes such as the Foreign Language/International Studies programs which have foreign language proficiency entrance requirements. Also, program administrators have argued that the failure to encourage feeder pattern continuation at grades six and nine has resulted in reducing the number of electives for advanced students and increasing introductory level courses for the large number of incoming students. Additionally, a serious concern that affects the overall implementation of programs is the organization and level of support staff assigned according to program level (elementary, middle, senior) versus student population at the building. At a middle school
53

with 238 students, there is a principal, an assistant principal, two secretaries, a coordinator of instruction, a coordinator of curriculum, a counselor, a home school coordinator, and a community liaison. At an elementary school with over 550 students, there is a principal, a secretary, and an instruction assistant. The KCMSD continues to follow traditional staff assignments rather than acknowledge specific building and theme requirements to ensure program success.
XIII. NEW PROGRAMS Rogers Academy, as a first year magnet, embodies both the best and worst of a middle school program. The curriculum articulated in the Planning Task Force document is both rigorous and multi-disciplinary; however, ongoing administrative personnel changes, the turbulent activities of the School Advisory Committee, as well as the inexperience of many new teaching faculty has had an impact on the instructional program and staff morale. Despite outstanding resources and low student/teacher ratios, the lack of KCMSD supervisory level intervention in 1990-91 suggests that the issue of building leadership will continue to be a concern next Fall. Richardson and Banneker Com puters Unlimited elementary programs are in their first year of implementation and are off to an excellent start. Van Horn School of Engineering and Technology is also in its first year of implementation. Van Horn has a new principal and has recently completed renovation to convert one of the campus buildings in to a technology center. All three schools have moved rapidly to meet desegregation goals (60/40), the principals are instruction leaders and building managers, and the computer labs are installed and being used by both teachers and students. Southeast Health Professions continues to build on its affiliation with several hospitals, health associations and medical advisory and resource staff personnel. Building limitations have restricted the scope of the program, but renovations for the addition of an emergency room and several medical labs will enhance theme attractiveness in the Fall of 1991. Northeast Middle Global Studies is also a first year magnet and an alternative to the Foreign Language program. The curriculum encompasses world cultures, environmental,
54

conflict and world issues and appears to reflect progress towards developing a middle school program with magnet electives and exploratory courses.
Harold Holiday Montessori. The first year of implementation for grades pre-K to K was hampered by the late delivery of Montessori materials including essential language and skill development materials. These materials did not arrive for use until after November 1, 1990, which seriously delayed the implementation of the program. Complicating this situation, classroom teachers were pulled from their teaching assignments for up to eight weeks on a full- and half-time basis to receive training to complete their Association of Montessori International Certification. Additionally, the program is currently housed in a temporary facility in which there were initial delays in the completion of the renovation process, and classroom teachers purchased fans at their own expense for the comfort of themselves and their students.
Metropolitan Advanced Technical High School (MATHS) has completed its first year of operation as an advanced and technical studies program for grades nine and ten. Many of the problems that have been encountered in implementing the themes at MATHS have been the direct result of KCMSD's Human Resources Department's inability to employ a curriculum coordinator, a coordinator of instruction, and a vocational specialist to assist the principal and the teaching staff. As a consequence of not having these essential personnel during the 1990-91 school year, fundamental and critical curriculum and instructional issues have only been slightly addressed. Additionally, much of the equipment that was needed to operationalize the basic and vocational skills laboratories for grades nine and ten arrived at various points in the school year, which limited instruction. As of May 1991, there were still several basic skills laboratories that were not totally completed.
Classical Greek Magnet Cluster for 1990-91 consisted of three elementary schools (Pitcher, Paige and Woodland) and one middle school (Robeson) in operation. On a day to day operational level the classical greek elementary schools have a very mixed track record of successes and failures. At Pitcher there have been excellent examples of a model student council governance program, gymnastic and swimming. Paige's physical development programs have been severely limited by the temporary facility that houses its student body. Woodland also has been limited in the types of physical and athletic skills
55

that can be developed because of physical facility difficulties and, most notably, their athletic fields have not been completed. However, Woodland does have a strong reading program. Because of the varying degrees of success in the elementary greek cadre, the reaction has been that the schools are beginning to share ideas and develop common programs.
Robeson's strength lies in the program, resource teaching staff, who have worked diligently under the direction of the principal and coordinator of curriculum, to develop a viable core and theme curriculum that can be infused across the various grade levels.
Central High Classical Greek's planning process was successfully completed during the 1990-91 school year. Without doubt, the planning process was a relatively smooth interplay of administrators, teachers, parents and community-based participants that equally shared their expertise and perspectives to produce the final planning document. The final document per se was based on an adaptation of the perceived Greek concepts of building "a sound mind in a sound body."
George Washington Carver Latin Grammar presently is being housed in temporary quarters during its first year of implementation. The facility has presented the staff at the school with its only serious obstacle. As was conceived in the LRMP, Carver has strong codes of conduct and dress with each student being required to wear a uniform that was furnished by the KCMSD. A structured learning environment is in place with curriculum emphasis being placed on basic skills attainment, mastery learning, problem solving and decision making. Latin has been infused across the basic skills areas and is offered on a daily basis.
Martin Luther King Latin Grammar has successfully completed its first school year as a Latin Grammar college preparatory magnet school. There was evidence to suggest that an exemplary effort was made to implement the major missions and provisos of the LRMP and the site-based planning document that was prepared by the task force. These included an emphasis on traditional basic skills, reasonable standards of behavior and conduct, and vigorous homework assignments.
Westport Communications/Writin g Middle School has completed its first year of operation as a communications/writing magnet school. Considering the physical conditions
56

with which the site-based administration and teaching staff had to labor under, it must be
assessed that they did a reasonably adequate job of implementing the communications/
writing theme as proscribed in their site planning document and LRMP. Because of the use of the annex concept there were some curriculum trade-offs in the theme areas made with the 125 eighth grade students that were housed at the annex. Given the fact that temporary laboratory facilities were set up for T.V. and photographic production for the 1990-91 school year, the students did receive hands-on experiences in these areas as required in the LRMP.
East Environmental Science and Agribusiness High School has completed its first year of implementation as an environmental science magnet program. From an extensive analysis of the five environmental science program goals that were proffered for attainment during the first year of implementation, there was evidence presented to support the propositions that they were somewhat successful in achieving these goals. The East agribusiness theme was artfully planned and outlined and brought to a conclusion. The agribusiness planning document is ambitious and strikes a healthy balance between providing theoretical and hands-on experiences and/or practicums in the various fields of agribusiness that would lead to immediate entry into the world of work or further training through postsecondary educational experiences.
Trailwoods Environmental Science Elementary, formally referred to as Elementary III, has completed its first year of implementation as a K-5 environmental science magnet elementary school. From a desegregation perspective, Trailwoods has a minority/nonminority enrollment ratio of 56/44%, and has been successful in attracting 29 interdistrict and intradistrict non-minority students. Operationally and conceptually, Trailwoods would be described as a traditional school with an environmental science theme. To offset this concern, key district-level science personnel have begun to offer the staff at Trailwoods technical assistance in bringing about a smoother implementation of the theme. With continued progress in this direction, Trailwoods has the potential to continue to offer a desegregatively attractive environment.
Westport Business and Communications Technology High School has completed its first year of operation as a business magnet program. The business theme was besieged
57

with a host of personnel, logistical, construction and procurement problems that tended to negate the staff's efforts to totally implement the theme. For example, the occupational business skills computer laboratories were not operational until after March 31,1991, which are key components of the theme's program as described in the LRMP. Compounding the problems that existed at Westport, the program was without the services of a permanent building principal for the vast majority of the school year. Two individuals served as principal of Westport on an interim basis.
The planning process for the communications magnet theme at Westport was completed during the 1990-91 school year under the auspices of the site planning task force. Much of the work of the task force was most difficult considering the fact that one of the interim principals was responsible for chairing the proceedings and providing the leadership and making provisions for the planning elements until such time as a program administrator was hired in late December 1990, to assist in alleviating some of the planning burdens. However, a concerted effort was made by the planning task force to meet timelines and to consider each of the planning provisos that were called for in the LRMP. The final planning document is strong in some of the five curriculum strand areas of the communications theme, while other areas leave much to be desired, such as the graphic arts strand and in the integration of the communications theme and the basic academic core areas.
58

VIDT SUBCOMMITTEE PRELIMINARY REPORT TO THE COURT FOR YEAR SIX Members Carl DiCapo, Chair Chuck James Ed Stoll
59

SUMMARY The Missouri City transfer plan for 1990-91 was a huge success. The superintendent of the Missouri City School District initially expressed reservations regarding involvement with the committee. However, after having visited the school, the superintendent has been quite friendly, helpful and supportive of the DMC. Missouri City did experience some transportation problems with the State. The VIDT Subcommittee feels that the State should not have been so rigid during the initial implementation of such a plan. One VIDT student has graduated from Missouri City and one will transfer for personal reasons, leaving eight returning students for 1991-92. It is expected that two additional students will be added to the original eight, thereby retaining 10 students in the program for 1991-92. In January 1991, the VIDT Subcommittee invited suburban school districts to a meeting to discuss the Independence and North Kansas City transfer plans. Eleven districts were present at the meeting and it appeared that some headway would finally be made. Unfortunately, the committee was embarrassed by the State's position which included informing the suburban school districts that they should not go through the VIDT Committee, but rather through the Court, as the State intended to do with its own plan. The committee is troubled by the lack of information provided by the State regarding progress. The North Kansas City and Independence VIDT plans were submitted to the Court. The Court has rejected the Independence and North Kansas City plans. As a result of the activities of the past year, the VIDT Committee is not optimistic about the future of new VIDT plans.
60

 
 1

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Kalima Jenkins, et al.,

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State of Missouri, et al.,

Defendants.

PROSPECTIVE PLAINTIFF-INTERVENORS' CONSOLIDATED REPLY TO THE PARTIES' SUGGESTIONS IN OPPOSITION TO MOTION TO INTERVENE
The parties have not put forth any compelling reason or established sufficient legal basis for denial of the Motion To Intervene in this case. The rules on intervention are to be liberally construed with doubts resolved in favor of allowing intervention. See e.g., Kozak v. Wells 278 F.2d 104, 111-112, (8th Cir. 1960); Corb y Recreation, Inc. v. General Electric Co. 581 F.2d 175, 177 (8th Cir. 1978). Under the rule covering intervention as of right, Fed. R. Civ. P. 24(a), a prospective intervenor must assert (1) an interest in the subject matter of the primary litigation; (2) there exists a possibility that the petitioners' interest will be impaired; (3) there exists a danger of inadequate protection by the party representing the petitioners' interests; and (4) the petitioners have made timely application to intervene under the circumstances of the case. (emphasis added) Liddell v. Caldwell, 546 F.2d 768, 770 (8th Cir. 1976).

The defendants and intervenor American Federation of Teachers (AFT) do not challenge the substance of the motion and limit their opposition to the timeliness factor. Plaintiffs assert that the motion is untimely, that movants do not have an interest in a desegregated school system, and that movants have not demonstrated inadequate representation.
Timeliness There is no steadfast rule establishing when a motion to intervene is or is not
timely. Timeliness is to be determined, on a case by case basis, examining all the relevant circumstances. NAACP v. New York, 413 U.S. 345, 935. Ct. 2591, 37 L. Ed.2d 648 (1973). While it is true that nine (9) years have elapsed from the time of the initial remedial order, that fact alone cannot be dispositive in light of the particular facts and circumstances of this case. In Bradle y v. Pinellas County School Bd., 961 F.2d 1554 (11th Cir. 1992), parents alleging violation of the rights of African-American students and deficiencies in the implementation of the district court's desegregation order satisfied the timeliness requirement in a case much older than these proceedings. In that case the litigation was twenty-eight (28) years old and the challenged remedial order had been in effect for fifteen (15) years.
That approach was consistent with Stallworth v. Monsanto Co., 558 F.2d 257, 266 (5th Cir. 1977), which counselled against the use of "absolute" measures of timeliness, such as how far the litigation has progressed when intervention is sought or the amount
2

of time that has elapsed since the institution of the action. Because "the privilege of
intervention stems from a desire to protect the rights of unrepresented third parties, it
becomes apparent that the timely application required under Rule 24 was not intended
to punish an intervenor for not acting more promptly but rather was designed to insure
that the original parties should not be prejudiced by the intervenor's failure to apply sooner." McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970).1/
The assertions of prejudice by the constitutional violators lack cogency and legal sufficiency. The state argues that it is too late to change the focus of the remedy. It is
not the intent or purpose of the prospective intervenors to change the focus of the remedy. Their goal is to ensure that a major focus of the original remedy (the educational interests of African-American students) is pursued effectively. In their
response, the state acknowledges that "dealing with the needs of minority students and predominantly minority schools" is a legitimate focus. State's response to Motion To Intervene at 5. Movants are not attempting to change that focus, but they are trying
1/ The Plaintiffs and AFT do not allege specific prejudice to their interests due to any delay in the filing of the Motion To Intervene, nor do they assert "possible prejudice any delay due to intervention might cause" them. Liddell v. Caldwell supra, at 770. The State of Missouri argues that intervention "would inject new issues into formulation of the remedial plan," "further complicate and delay future litigation," and "that the delay would prejudice the State." State's Response To Motion To Intervene at 7-8. The Kansas City, Missouri School District (KCMSD) asserts that the intervention would "jeopardize" implementation of the Court's remedial orders, "needlessly complicate and delay" the litigation, increase costs and add to the burden of discovery. KCMSD's Suggestions In Opposition To Motion To Intervene at 4-5.
3

to ensure that an essential component of the original remedy receives adequate attention from the Court "in order to provide real and tangible relief to minority students." Freeman v. Pitts, 112 S. Ct. 1430, 1447 (1992).
The State also argues that it will be prejudiced by the injection of new issues in the case. That is not correct, as stated above. Movants are not injecting new issues, but they are attempting to revitalize old issues (essential to the ultimate effectiveness of the remedy) that have been too long ignored by the existing parties. The State argues prejudice because the requests for relief will delay progress toward ending the litigation. They are once again mistaken. Unitary status will not be achieved until the schools are desegregated to the extent practicable, and that will not occur until African-American children are accorded equal educational opportunities and the effects of the once de jure segregated school system are eliminated. The "prejudice" that the State may suffer in not prematurely ending the litigation is not grounds for denying the intended beneficiaries of the desegregation effort a voice in that effort. "[Re-]formulation of the remedial plan" and re-examining the needs of African-American students at this stage of the proceedings 21 is not prejudicial and may be necessary to expeditiously achieve a unitary school system. Therefore, it certainly is appropriate for this Court "to inquire whether minority students [are] being disadvantaged in ways that [require] the
V This motion was filed as these proceedings are entering a new stage. The remedial programs in this case expire at the close of the current school year. The record indicates that the KCMSD has filed a draft Long-Range Magnet Renewal Plan (LRMRP) and that the Court will not "hear evidence on the issues relevant to developing a one year plan" until March 28, 1995. Order of December 7, 1994.
4

formulation of new and further remedies to insure full compliance with the Court's decree." Freeman v. Pitts, supra at 1446.
The defendants' further assertions are also insufficient to justify denial of the motion. The delay, expense, and inconvenience occasioned by a requirement that constitutional violators remedy their wrongs is not the sort of "prejudice" that justifies a
denial of intervention.2/ Prejudice to the parties from the intervention itself should not influence the determination of timeliness and "mere inconvenience is not, in itself, a
sufficient reason to reject as untimely a motion to intervene as of right." McDonald v. E.J. Lavino Co., supra at 1073; Stallworth v. Monsanto Co., supra.
The intervention motion was filed at this time because it was not until the July 19,
1994 hearing on conditions in the traditional schools and subsequent events such as the Plaintiffs' vigorous opposition to the Court's, sua sponte, change in the minority to nonminority placement ratio (to which none of the parties responded), and KCMSD's filing for the second time an LRMRP (prepared jointly with class counsel) devoid of any plans to eliminate the vestige of "low achievement" and a "general attitude of inferiority among
blacks" did movants finally realize that the interests of African-American children simply would not be adequately represented. Perhaps they could have come to this conclusion
2/ Penick v. Columbus Education Ass'n., 574 F.2d 889 (6th Cir. 1978), cited by the state, is easily distinguishable since there, the appellate court found no abuse of discretion in denying permissive intervention by the bargaining agent for public school teachers in the remedial stage of a desegregation proceeding where the interests of teachers in the proceedings appeared to substantially coincide with the interests of defendant school board and where the movant failed to suggest any actual specific dispute between itself and the school board or any failure on part of the board to represent its interests.
5

sooner, but hindsight is certainly illuminative. However, any failure to recognize the magnitude of the problem and organize themselves more expeditiously should not serve as a basis for denying African-American children and their parents the right to be heard on the critical issues that remain unresolved.
The Motion To Intervene does not threaten to stall the wheels of justice or to delay the adjudication of the rights of the existing parties. These movants do not seek to relitigate resolved issues or to dismantle the remedy already established. There should be sufficient means within existing parameters, if properly designed and implemented, to meet the needs of the African-American children. The prospective intervenors willingly take the case as they find it. Little Rock Sch. Dist. v. Pulaski Ctv. Sch. Dist., 738 F.2d 82, 85 (8th Cir. 1984). As a consequence, the existing parties need not fear that discovery will be delayed, that hearings will be postponed, that judicial decisions will be put off, or that various other forms of real or imagined prejudice will ensue by allowing African-American parents to have a seat at the table in order to directly participate in litigation of vital importance to their children. "[The] limited goal of future participation does not impose any untoward burden on the original parties where questions may arise about the proper workings of the [remedial order] with possible benefit to the court from [intervenors] participation in their resolution." Natural Resources Defense Council v. Costle 561 F.2d 904, 908 (D.C. Cir. 1977). (See Hodgson v. United Mine Workers of America, 473 F.2d 118 (D.C. Cir. 1972) allowing intervention when the applicant sought to participate in an upcoming, remedial phase of the litigation.)
6

Under the circumstances, the addition of these movants (African-American students and parents in a school desegregation case) is neither unusual nor unmanageable, especially in light of the discretion this Court possesses to control the course of proceedings before it. "The District Court may, of course, bar [intervenors] from seeking to reopen a question settled by the [parties] since intervention [is] sought in order to participate in post-(judgement] implementation. As for future intervention by other parties, the District Court possesses ample discretion under [Rule] 24(a)(2) to see that [the] proceedings are workable, non-duplicative and fair." Natural Resources Defense Council v. Costle, supra at 911.
Interest In the Subject Matter of the Litigation Plaintiffs' primary argument seems to be that the movants do not have an interest
in the proceedings "that can only be protected if intervention is granted." That is not the standard. Rule 24(a) provides for intervention of right when the applicant claims an interest and is so situated that "the disposition of the action may as a practical matter impair or impede the applicants' ability to protect that interest..." They then go on to cite several cases where courts have denied intervention to parent groups that are opposed to desegregation. Of course, these cases are inapposite.
The proposed intervenors have a clear interest in the establishment of a desegregated school system. They have a direct interest in the elimination of racially isolated substandard schools. Their interest is broader than the interests of the parent
7

group in United States v. Perry County Board of Education, 567 F.2d 277 (5th Cir. 1978)4J
Throughout their pleadings, movants unequivocally assert an interest in eliminating racially isolated schools and eradicating all the effects of segregation, including the vestige of "low achievement" and a "general attitude of inferiority among blacks." The movants have clearly advanced an interest in the goal of expeditiously achieving a unitary school system --- a school system in which there is not a proliferation of racially isolated annexes and in which the glaring and ever widening disparity between the academic achievement levels of white students and the African-American victims of discrimination is eliminated. Their interest is in ensuring that the students of the KCMSD receive a truly desegregated education where all vestiges of prior segregation have been eliminated root and branch.
In their suggestions, Plaintiffs assert that "[d]esegregation of the school district...is not the interest claimed or advanced by the proposed intervenors" because "they complain that [for too long, the KCMSD has inappropriately treated the process of desegregation as a process that focuses solely on integrating schools." Plaintiffs Suggestions at 7. They go on to suggest that concern with "broad instructional issues such as raising student achievement and improving curriculum" is not an expression of an
4/ In that case cited by Plaintiffs, the court denied intervention to a group of parents who merely sought to challenge the location of new schools when it was found that they did not have an interest in a desegregated school system. This Court has allowed intervention by a group of students challenging plans for the construction of a new school when it found that they had such an interest. Order of June 7, 1990.
8

interest in "desegregation and a unitary school system."5/ They are simply wrong. As stated above, parents of children enrolled in a once de jure segregated school system who seek to end racial isolation, increase student achievement, and improve curriculum, certainly advance an interest in a desegregated and unitary school system. These interests surely are sufficient to meet the requirements of Rule 24. See Liddell v. Caldwell, supra; Bradley v. Pinellas County School Bd., supra.
Adequacy of Representation Basic consideration of fairness require that a court undertake a stringent and
continuing examination of the adequacy of representation by the named class representatives at all stages of the litigation& Two criteria for determining adequacy of representation are that (1) the named representative must not have antagonistic or conflicting interests with the unnamed members of the class, and (2) the representative must appear able to vigorously prosecute the interests of the class through qualified counsel. Nat. Ass'n. of Regional Medical Programs v. Mathews, 551 F.2d 340, 344-345 (D.C. Cir. 1976).
Plaintiffs' characterization of the issues raised by movants is contrary to the arguments recently advanced on their behalf to the Supreme Court. Plaintiffs and their amici argued that inputs such as an improved curriculum, instruction, staff development, school climate, etc., and out puts such as student achievement, drop-out rates, attendance, etc., were relevant criteria in determining whether or not a school system was unitary. See Brief of Amici Curiae James Anderson, et. al., Appendix at 18-33.
There are apparently no active class representatives in this case. The original named plaintiffs are not longer enrolled in KCMSD and have not been involved in this litigation for several years. In effect, class counsel has assumed the responsibility of the class representatives.
9

The record in this case clearly establishes that Plaintiffs have failed to fulfill their duty to vigorously represent the interests of African-American students, especially the traditional school populace. In its September 19, 1993 report to the Court, the DMC reported that the traditional schools were "in dire need of attention." Although approximately forty-three percent (43%) of all minority elementary school students enrolled in the KCMSD attend traditional schools, not one new traditional school has been built and renovation of several traditional schools has been delayed. When it became obvious that the dilapidated schools ordered closed would remain in operation for an extended period, and that there was a need to open temporary annexes, the Plaintiffs failed to move the Court to modify the sequence of capital improvement projects to accommodate the needs of the largely African-American traditional school populace.2/ As a result of Plaintiffs failure to fulfill their duty, a significant segment of the population for whom the remedy was ordered has been deprived of the full benefits ordered by the Court.
When the Court conducted a hearing to examine conditions at the traditional schools in response to subsequent DMC concerns about the conditions, Plaintiffs did not present any evidence and class counsel made a disparaging statement seeming to blame the students and their parents for their plight. See Traditional School Hearing Tr. 384387. This alone is sufficient evidence of inadequate representation --- failure to fulfill duty.
7/ However, they moved swiftly to secure a stand-alone foreign language middle school for a relatively small group of magnet school students.
10

Plaintiffs' handling of this Court's, slut sponte, change of the minority to nonminority placement ratio is further evidence of both the conflicting interests within the class and the inadequate representation of movants interests when such conflicts arise. When class counsel vigorously opposed that change (ordered to give African-American students access to more seats in successful magnet schools) no one argued their position or represented their interests in having greater access to seats in successful magnet schools before this Court. In these adversarial proceedings, originally instituted on their behalf, the adjudicated victims should not have to rely on the Court to represent their interests.
Plaintiffs' myopic view of the remedial focus of this case is additional evidence of their inability to adequately represent the interests of the proposed intervenors. In the face of this Court's repeated pronouncements (See e.g. the Memorandum Opinion of June 14, 1985; Order of April 16, 1993; Order of April 14, 1994; Order of August 19, 1994; and Order of October 24, 1994) Plaintiffs refuse to recognize that the desegregation remedy in this case is "two-pronged" with equally important goals of integrating the schools (alleviating racial isolation) and eliminating all the effects of discrimination. Since Plaintiffs do not recognize the latter as a legitimate interest (See Plaintiffs' Suggestions In Opposition at 7) they certainly cannot adequately represent the interests of the proposed intervenors in its pursuit. Movants interests are consistent with the original remedy and their concern is that a major thrust of the original remedy that is essential to the equal educational rights of the African-American children is being
11

inadequately represented. Their ability to protect their interest in receiving the full

benefits of remedial plans will be substantially impaired if intervention is denied.

The burden resting on intervenors to show that their interests are not adequately

represented by existing parties is a "minimal one." Little Rock Sch. Dist. v. Pulaski Ctv.

Sch. Dist. supra at 84. The requirement of Rule 24 is satisfied if the applicant shows

that representation of his interests "may be" inadequate; and the burden of making that

showing should be treated as minimal. Trbovich v. United Mine Workers of America,
404 U.S. 528, 538 n.10, 92 S. Ct. 630. 636, 30 L.Ed.2d. 686 (1972). pautiddeai.

qajdweit

ch-therouttelound hodequate-IPPLci§in049P 7"!'-' 'failure tp

etifitdetyllsznprochttkintereStsvtgzichrit AfricanzAtiftnciffttuaents (bril

tvertifitirviainOtisting soleirtelthiettif-Americati -Students1When diffgences

CMSe, 7vimoldilstsemedial'fan

tgelatiiiii-Waiiii0resentarwes.

Similar to the successful intervenors in Liddell, the movants herein have

established that the Plaintiffs are not adequately representing their interests in

implementation of a "two-pronged" remedial plan. Moreover, they have established that

Plaintiffs' have failed to represent their interests in eliminating the vestiges of "low

achievement" and "general attitude of inferiority among blacks"; that there are

conflicting interests within the class; and that the LRMRP prepared jointly by the

KCMSD and Plaintiffs is generally devoid of realistic plans to eliminate all the vestiges

of segregation to the extent practicable. Under the circumstances of this case, the

minimal burden under Rule 24 has been exceeded.

12

In identifying the unavoidable conflicts within the class and the inadequate representation of movants interests in the resolution of those conflicts, these parents do not cast aspersions or "impugn any element of bad faith" on Plaintiffs or class counsel. The inadequate representation of movants interests may very well be attributable to the composition of the class (all present and future students of the KCMSD). Plaintiffs have indicated that conflicts affecting the competing interests of the distinct groups within the class often arise and are resolved by class counsel. See Motion of Plaintiffs To Alter or Amend This Court's Order of August 19, 1994 at 5-6. As a result, the interests of some class members have not been adequately represented. These movants merely assert that intervention is warranted because there is inadequate representation of their interests and that too great a burden has been placed upon class counsel, who is charged with the responsibility of representing the interests of both white students and the AfricanAmerican victims of discriminatory conduct, two functions that may not always dictate the same approach to the conduct of the litigation during this remedial phase when it is critical that the interests and needs of the victims are vigorously represented and clearly articulated before the Court. See Trbovich v. United Mine Workers of America, supra at 539.
Conclusion For the reasons discussed in these Reply Suggestions, as well as for the reasons contained in the Motion To Intervene, Suggestions In Support of Motion To Intervene,
13

and the Amended Complaint In Intervention, the movants have established their right to intervene in this litigation under iule 24(a). Permissive intervention under Rule 24(b) is also appropriate in this case. As outlined above, the Prospective Intervenors clearly seek to raise issues that share common factual and legal questions within the main action. Further, intervention will cause no prejudice or delay. Thus, even if this Court should determine that not all of the requirements of Fed. R. Civ. P. 24(a) have been met, it should permit the requested intervention under Rule 24(b). Movants respectfully request the Court to issue its order granting their motion on the record or, in the alternative, to conduct an evidentiary hearing to allow them to present evidence in substantiation of the issues presented in the Motion To Intervene.
Respectfully submitted,
Law Offices of Edward L. Pendleton Edward L. Pendleton #22992 Holly Winkler #43267 600 E. 11th Street Kansas City, Missouri 64106 816/221-5980
Clinton Adams, Jr. #'25438 600 E. 11th Street Kansas City, Missouri 64106 816/221-5980 Of Counsel Attorneys for Prospective Intervenors

% •
CERTIFICATE OF SERVICE
I hereby gertify that a copies of the foregoing were mailed on this /`;' day of January, 1995 to:
Arthur Benson, Esq. 1000 Walnut, Suite 1125 Kansas City, MO. 64106 Attorney for Kalima Jenkins, et al.
Allen R. Snyder, Esq. Hogan & Hartson L.L.P. '65 Thirteenth Street, N.W. Uashington, D.C. 20004-1109
Shirley Keeler, Esq. Blackwell, Sanders Matheny,
Weary & Lombardi 1100 Two Pershing Square 2300 Main Street Kansas City, Missouri 64106 Attorneys for the Kansas City,
Missouri School District
Michael J. Fields, Esq. office of the Attorney General 1700 Jefferson Street Jefferson City, Missouri 65109 Attorneys for the State of Missouri
Scott A. Raisher, Esq. Jolley, Walsh & Hager, P.C. 204 East Linwood Blvd. Kansas City, Missouri 64111 Attorneys for tervenor AFT Local 691
Edw rd L. Pendleton

 
 IN THE UNITED STATES DISTRICT COURT FOR , !I

WESTERN DISTRICT OF MISSOURI /\\>=1"---

WESTERN DIVISION

a,i>
, `x/A, .14-

-..- 4v.4,..,..A, 2,/rV,,s,, ,,f0-A.1'1:)::: ---

4,.. ,V• clio. 02, c -.

KALIMA JENKINS, et al.,

)

r)

4t, , Ise cb 4 '44)44P/, 44;

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Plaintiffs,

v s.

No. 77-0420-CV-W-4

STATE OF MISSOURI, et al.,

Defendants.

ORDER

Before the Court is the AFT Local 691's motion to alter or amend this Court's order of October 18, 1991. The KCMSD and the State filed responses. This Court will clarify the October 18, 1991 order.
At issue before the DMC was action which would have permitted the KCMSD to expend 96-cent levy funds in excess of $34 million for STEP and COLA increases. The KCMSD is precluded from spending revenues in excess of the court-approved $34 million for salary increases. However, the KCMSD may spend its $34 million share for salary increases.
In addition, any extra funds in excess of the original projections for what the 96-cent levy increase was projected to bring in may be used to fund the KCMSD's 50% share of the salary increase portion of the salaries of new Year VII employees. However, the Court reaffirms the $34 million limitation on the State's liability during 1990-91 and 1991-92 for salary increases for all KCMSD employees, whether continuing employees or new Year VII employees.

ORIGINAL DOC.

IT IS SO ORDERED.
Date: January J 7 , 1992

RUSSELL G. CLARK, SENIOR JUDGE UMTED STATES DISTRICT COURT

2

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

KALIMA JENKINS, et al.,
VS.
STATE OF MISSOURI, et al.,

Plaintiffs, Defendants.

No. 77-0420-CV-W-4

ORDER

This matter comes before the Court on the Kansas City Missouri School District ("KCMSD") and Plaintiffs' Joint Motion for Approval of the Long Range Magnet Renewal Plan ("LRMRP") and also, Plaintiffs' Proposed Additions to the LRMRP. The State of Missouri ("State") has responded as well as the American Federation of Teachers Local 691 ("AFT"). This matter was the subject of extensive briefing before this Court. A hearing was held in two parts and the Court received evidence concerning the LRMRP. Additionally, the Court received substantial post-trial briefing from the parties. Based on the arguments presented by the parties in the above referenced pleadings and on the evidence presented during the approximately three weeks of hearings the Court will grant the KCMSD and Plaintiffs' motions in part and deny them in part as set out below.
The Court will first note that the District has been adjudged a constitutional violator in the action before this Court. It is somewhat ironic the posture that this case has taken over the many years it has been ongoing. The District, a constitutional violator, is now before this Court

on joint motion with the plaintiff school children requesting that the Court extend for ten years a magnet program with an estimated budget, in 1992 dollars, totalling well over $500 million. The State, also a constitutional violator, has historically opposed the implementation of any program offered to desegregate the KCMSD. The Court recognizes that the State has had to bear the brunt of the costs of desegregation due to the joint and several liability finding previously made by the Court. However, the State has never offered the Court a viable, even tenable, alternative and has been extremely antagonistic in its approach to effecting the desegregation of the KCMSD.
The Court must consider the history of this case before it can pass on the ten-year extension proposed by the District. More importantly, a ten-year extension of the Magnet Program requires that the Court carefully evaluate both its perceptions and those of the parties of what the future of this case will bring. The Court recognizes that there has been substantial activity in the Missouri Legislature which could impact significantly on the ongoing administration of the KCMSD desegregation program. Additionally, there are other components of the desegregation program already implemented by the Court which must be considered before the Court may pass on a ten-year extension of the Magnet Program component. The Magnet Program does not operate in a vacuum, therefore, any proposed extension should not be considered without full weight being given to the other aspects of the KCMSD desegregation plan.
A point of much concern to the Court, yet barely addressed by either the District or the plaintiffs, is how the KCMSD proposes to ultimately fund the school system developed under the desegregation plan. The Court finds it greatly satisfying that the District is willing to plan
2

and assume its desegregation obligation over the next ten years. It is without question a necessity to make sufficient plans to provide for a stable school system and to make it even more attractive to non-minority suburban and private school children and their parents. However, a glaring omission is a plan by which the District proposes to fund this wonderful school system being built.
Statement of the Case In the Joint Pretrial Order the parties listed their different views of the issues to be presented to the Court in the LRMRP Hearing. The Court finds it is appropriate to set out each of the parties understandings as it is necessary to the ultimate resolution of these issues. The Kansas City, Missouri School District On September 1, 1992, the KCMSD, together with the Jenkins plaintiffs filed with this Court a Joint Motion for approval of the LRMRP. The LRMRP provides for the continuation and funding of existing magnet programs on a modified basis over the next ten years. Additionally, the LRMRP provides for the implementation of certain new magnet programs, notably at the remaining traditional elementary schools as necessary to address an accelerating trend of racial isolation in those schools. The LRMRP includes a ten-year budget (stated in 1992 dollars), to be funded by the State of Missouri and the KCMSD on a joint-and-several basis. The LRMRP is designed to enhance the KCMSD's ability to attract to its schools new students, both minority and non-minority, and thereby present the most reasonable prospect of continuing desegregative progress in Kansas City's schools. (Joint Pretrial Order at 1-2).
3

Plaintiffs In addition to their role in working with the District to develop and submit to the Court
the LRMRP, on November 13, 1992, plaintiffs separately filed with the Court a motion for an order approving certain additions and other changes to the proposed Renewal Plan. Plaintiffs thus seek approval by the Court of the LRMRP as modified by their subsequent proposal in 25 specified respects. While the KCMSD agrees that most if not all of plaintiffs' proposed modifications would enhance (to greater or lesser extent) the Renewal Plan, the District does not in most instances view them as absolutely necessary to the future success of the LRMRP. The AFT
The AFT generally supports the LRMRP with certain modifications. The AFT did not take an active role in the hearing except to the extent that it elicited testimony regarding the possible effects of any changes in the LRMRP on the ultimate ability of teachers to perform their responsibilities. The State of Missouri
On November 13, 1992, the State submitted to the Court a memorandum in opposition to plaintiffs' and the KCMSD's Joint Motion for approval of the LRMRP. Characterizing the original (and current) Long Range Magnet Plan as a failure, the State requested that this Court reject the ten-year Renewal Plan and order only a one-year extension of the existing magnet programs at current budgetary levels. Moreover, the State proposed that there occur an additional analysis during the one-year extension of the status of the magnet program as a desegregation remedy in this litigation; such analysis would identify whatever particular magnet programs or schools should be preserved from termination after the conclusion of the one-year
4

extension. Furthermore, the State requested a Court order that the KCMSD (beginning in 199495 and for a total of at least three school years) turn over to the Missouri Department of Elementary and Secondary Education three District elementary schools for implementation of an Outcome-Based Education pilot program. The State also proposed that, if the ten-year extension and expansion of the magnet plan is approved, the Court remove control of the operation of the KCMSD from the current Board and Administration. (Joint Pretrial Order at 3).
Contested Issues of Fact and Law The parties were unable to agree on the contested issues of fact and law and submitted their own separate statements on what each thought the appropriate issues were. The District submitted the following issues. First, whether the magnet programs have contributed to improving the educational lot of the victims of unconstitutional segregation and whether approval of the LRMRP would likely result in additional educational progress. See, Jenkins v. Missouri, 855 F.2d 1295, 1302 (8th Cir. 1988), cert. denied in relevant part, 490 U.S. 1034 (1989). The second issue was whether implementation of the magnet plan has contributed toward the Court's goal of regaining those students who earlier participated in white flight and retaining those who stayed in the KCMSD, and whether the LRMRP would result in the attraction and retention of additional non-minority students. Next was whether the magnet programs have redistributed the students within the KCMSD for maximum desegregation and whether the LRMRP would result in the stabilization and further enhancement of desegregative gains. The fourth issue raised by the District was whether the proposed LRMRP developed by the KCMSD and plaintiffs was appropriately based upon a careful analysis of the plan's impact
5

upon other components of the desegregation plan, and is geared toward (a) maximizing the future achievement of desegregation with a minimum amount of resources; (b) providing longterm stability, including in terms of future financing; and (c) incorporating a carefully designed marketing program based upon clearly defined themes. Next, was whether the proposed staffing, non-salary resources, and related capital projects proposed in the LRMRP are necessary to the success of the programs and general curriculum at the magnet schools; and whether the staffing concerns raised by plaintiffs in their supplemental proposal are necessary to the success of the magnet programs. See, Liddell v. Board of Education, 967 F.2d 1241, 1245 (8th Cir. 1992).
The last issue raised by the District was whether approval by the Court of (1) the LRMRP, or (2) the one-year extension proposed by the State, including the takeover of three elementary schools for implementation of an OBE program with the express understanding that the magnet program would be partially or completely dismantled over time -- would better promote desegregation as envisioned by this Court throughout its monitoring of the present litigation.
The plaintiffs raised the issue of whether the 25 separate proposed additions were appropriately considered as a necessary part of any LRMRP to promote and sustain the desegregation of the KCMSD. Plaintiffs' next issue was whether their proposed additions were necessary to promote and achieve academic success in the KCMSD. Lastly, the plaintiffs raised the issue of whether it is necessary and appropriate to implement a ten-year LRMRP.
The State raised a series of issues as to the previous effectiveness of the magnet programs in general and specifically as to any future implementation. The State first asked whether the
6

current magnet program has had sufficient desegregation or academic achievement success to warrant a continuation or expansion of new, untested themes in the KCMSD. The State next presented the issue of whether the KCMSD under a new magnet program could attract sufficient additional non-minority students to attain a district-wide or school-by-school ratio of 60% minority 40% non-minority or whether the new magnet program could ever provide academic achievement to a level constitutionally required to enable the KCMSD to attain unitary status. The State raised the further issue of whether magnetizing all of the currently "traditional" elementary schools was necessary to meet the goals stated above.
The next area of interest to the State was appropriately finance. The State raised the issue of whether a long-term financing program has been developed by the District to (1) fund the District's share of the desegregation remedy beyond the current year and (2) provide a funding mechanism by which the District will continue the magnet programs after State funding is no longer required. The issue of whether the capital resources proposed for the first year of the LRMRP were justified was also raised.
The State raised the further issue of whether a one-year interim continuation of the present magnet school program would be appropriate to allow for additional study and evaluation of the magnet program. Also offered was whether the Outcome Based Education model in three of the schools might provide a better basis for education in the KCMSD. Additionally, the State raised the issue of whether the possibility of a Voluntary Interdistrict Transfer program might allow for implementation of a less costly magnet program.
Lastly, the State brought forward the issue of whether the study of demographic trends within the KCMSD and surrounding census areas and the public opinion survey of resident
7

parents of the school districts surrounding the KCMSD, both of which were conducted by State experts and which (as argued by the State) limited additional attractiveness to non-minorities and virtually no potential to reach 60/40, provide a basis upon which the Court should deny the extension and expansion of the magnet plan and justify a one-year evaluation period. Moreover, the State was concerned with whether the proposal for neighborhood schools warranted additional time and consideration.
With this background of the posturing of the case in mind, the Court will proceed to address the contentions it believes are necessary to the resolution of the main issue before the Court: whether the Court should order the ten-year extension and expansion of the magnet programs and hold the State financially accountable for the LRMRP throughout the entire period.
FINDINGS OF FACT After due consideration of the evidence presented by the parties at both parts of the hearing on this matter, the Court makes the following findings of fact: 1. Since 1986 the KCMSD magnet school plan has made substantial progress toward desegregating the schools of Kansas City. It has eliminated all fifteen elementary schools that had suffered the most intense racial isolation and it has substantially improved the elementary school exposure index. 2. While several secondary magnet schools have not been in operation for more than a few years, some progress has been made in integrating those schools. Several middle and high schools have achieved high levels of integration, including King Middle School of the Arts, Lincoln Prep and Paseo Academy. Other secondary schools have programs that should, in the future, increase desegregative success.
8

3. The KCMSD magnet school program has had some impact upon residential choices of Kansas Citians. There is evidence that because of the magnet schools some parents of white students who would earlier have moved out of the KCMSD have stayed and enrolled their children in the magnet schools.
4. There remains a substantial pool of non-minority students, especially in surrounding Missouri school districts, who are interested in attending and may be persuaded to attend the KCMSD magnet schools.
5. A ten year extension would have a positive impact on the attractiveness of the KCMSD magnet school programs by offering stability and continuity to prospective participants. Additionally, a ten-year extension would undoubtedly be of benefit in attracting quality teachers and administrators to the magnet schools.
6. The District has gone through an extensive evaluation and planning process in its preparation of the LRMRP. However, the District has provided the Court with a plan based solely on the theory that all of the schools in the KCMSD should be magnetized.
7. The evidence supports the conclusion that there has been increased racial isolation in the traditional elementary schools since the implementation of the LRMP. Moreover, there exists some evidence which suggests that some students have responded positively with respect to academic achievement within the magnet elementary schools.
8. The evidence before the Court supports the conclusion that a substantial number of patrons of the KCMSD advocate the continuation of some form of traditional elementary school education.
9. Extending the magnet program to include all of the currently traditional
9

elementary schools would not, based on the current evidence, significantly impact the desegregative or achievement effort of the current magnet plan. Furthermore, based on the current sentiment testified to in the hearing, there is a significant population supporting traditional elementary school education and this population is very important to the ultimate success of the desegregation effort in the KCMSD.
10. The Montessori programs presently in the elementary schools have been an extremely popular theme. There have been long waiting lists for this theme. The evidence sufficiently supports the addition of one more Montessori elementary school.
11. The Outcome Based Education (OBE) program offered by the State has several components which are educationally attractive. However, the OBE program is an educational delivery methodology which does not rise to the level necessary to build an entire theme for a magnet school.
12. The OBE program offered by the State is not a credible alternative to the LRMP currently in effect.
13. There is an astounding lack of evidence to support the State's proposition that it should take over and operate three elementary schools within the KCMSD. The proposal by the State, through its purported experts, lacked sufficient specificity to be considered in any way credible.
14. The LRMRP, as proposed, makes significant changes to the current structure of the administration in the KCMSD. The current fiscal climate and the requirements of effective delivery of services within the magnet school program do not necessitate the extreme reorganization contemplated by the LRMRP.
10

15. The LRMRP, while making some very important changes in magnet themes, is too extensive a change at this time to justify its implementation.
16. There are certain theme changes that are supported by the evidence. 17. The Court finds that the evidence presented by the District with respect to achievement data to be generally credible. The Court finds that the evidence is clear that there has been a trend of improvement in academic achievement in the KCMSD. However, the Court is not satisfied that the District has reached anywhere close to its maximum potential because the District is still at or below national norms at many grade levels. Nor does the Court find that the data presented by the District is necessarily indicative of a clear trend of the magnet schools consistently outperforming the traditional schools. The Court finds that there is no way to make a competent comparison at the higher grade levels as no traditional schools exist at these grades. The Court finds that the achievement data provided by the District is reliable but is not probative to the extent which the District used to make its sweeping conclusions as to academic success. Moreover, the Court finds that the studies conducted by the State are reliable but not to the extent necessary to draw the doomsayer's conclusions reached by the State with respect to the success of the magnet program. The Court finds that the achievement success of the magnet schools has been positive overall but is not truly reflected by the conclusions asserted by either party. 18. The Court finds that the District, through the magnet program, has made positive steps towards reaching the desegregation goals of the Magnet Plan. This is evidenced by the testimony of the District's expert, Dr. Gary Orfield, showing the exposure index to have made positive changes during the course of the LRMP. However, the Court finds that the District's
11

overall minority/non-minority ratio of 74%/26% does not comport with the requirements previously announced by this Court for the desegregation objective of the Magnet Plan.
19. Neither the District nor the plaintiffs has offered a plan for financing the expanded magnet school program. The Court finds that it would be inappropriate to order such a longterm extension of the magnet program without a clear method of financing it other than relying on State funding through joint and several liability.
20. In order to have a clear view of the future of the magnet school program, as well as the desegregation program generally, and in light of the changes of state leadership and the activity in the Missouri Legislature, it is necessary for the Court to have before it a viable plan by which the District will fund and operate the magnet schools of the KCMSD after Court ordered funding by the State is withdrawn.
Extension of the LRMP The Court is faced, as usual, with diametrically different proposals provided by the parties in this litigation. The Court has previously found that the desegregation program which this Court has undertaken requires a magnet component in order to succeed in reaching the goals which have been repeatedly articulated by this Court. However, neither of the proposals put forth by the parties in the LRMRP hearing phase comport with the requirements of the magnet component as envisioned by the Court. Each of the parties have submitted concepts which should definitely be included in the magnet component. However, the Court is left with the undesirable prospect of formulating, on its own, the magnet component for the desegregation plan. In the past the Court has consistently allowed the District to indulge in speculation as to
12

what benefits different magnet programs will have in the KCMSD. In short, the Court has allowed the District planners to dream. The Court then has provided the mechanism for these dreams to be realized. The Court has found that many aspects of the LRMP have been completely successful. The testimony of the students, parents, and teachers as to the rejuvenated physical plant of the KCMSD stands in sharp contrast to the testimony which precipitated the Court's original formulation of the magnet school program. There is no doubt that the educational opportunities afforded in the magnet schools are better than that previously available. However, the LRMRP offered by the District and plaintiffs illustrates the District's ability to dream. The Court finds that it is time that the District be subject to a very definite reality check. The plaintiffs have recognized that in several areas the District has sought to cut the current magnet programs to justify its extravagance in the LRMRP. However, the plaintiffs are just as guilty in that they too, have included extravagant expansion of the magnet component.
In fashioning the magnet component to the desegregation remedy initially, the Court ordered the construction and implementation of certain well-defined magnets. Many of these magnet themes have been very successful in attracting and retaining non-minority students. The Paseo Academy has been successful as exhibited by the waiting lists for admission. Additionally, the Montessori programs have been quite attractive at the elementary school level. The Lincoln College Preparatory Program also has been successful in attracting non-minority students. Moreover, each of the above listed programs have impacted the achievement of both minority and non-minority students in a very positive way.
The parties agree, if but on only one thing, that some of the themes implemented in the LRMP have not been as successful as predicted when they were submitted to the Court. The
13

District has not appropriately identified the magnets which are unsuccessful. Rather, the District has used the LRMRP as an opportunity to again reassign responsibilities and job descriptions. There has been a very significant introduction of new themes at the elementary school level and an adjustment to feeder patterns throughout the magnet program. The Court applauds the better definition of feeder patterns by the District but finds that such accomplishments may be made without magnetizing all of the elementary schools in the district.
The Court sets the following guidelines for the District to use in the further implementation of the LRMP. The Court will first note that it is not adopting the extensive restructuring of the LRMRP. It is just as true that the Court is not adopting the one-year rollover, for the purpose of finding the best way to dismantle the magnet program, as proposed by the State. What the Court is adopting is an extension of the magnet component of the desegregation program with certain specific additions and with the express understanding that the District may make modification to themes within the current structure and budget in order to eliminate ineffective themes and ensure that the magnet program meets the previously announced goals of desegregation and achievement.
The Court has found that the Montessori elementary education program has been a highly successful magnet theme. Therefore, the Court will order that the District establish one additional Montessori magnet theme. The District shall use the new elementary school which is to come into the school system in the 1993-94 school year for the new Montessori school. The Court will allow for the modification of this school's budget to account for the implementation of the Montessori theme. The budget offered by the District for such an additional Montessori elementary school under the LRMRP presupposed a change in personnel
14

and structure which the Court does not adopt. Rather, the District should use the current Montessori program budgets as the model for implementation of the new elementary school.
The six "1986-87 Magnets" -- i.e., Lincoln College Prep, the Southwest Cluster, and Swinney-Volker -- have been responsible for differing degrees of success. Nonetheless, the Court finds that they should be extended through the period contemplated by this order. These 1986-87 Magnets should be funded under the Magnet Plan as adopted by this order. However, the Court finds that the District shall continue to fund the schools represented as the 1986-87 Magnets at the same level as they currently exist with the exception of modifications made necessary at Lincoln College Prep as discussed below. The Court specifically finds that the changes to the budgets of those other 1986-87 Magnets as proposed by the District in the Renewal Plan are not to be implemented. The Court finds that it is imperative to the continued success of programs such as Swinney-Volker that the budgets be maintained at the current levels. The District should be able to continue the operation at the current levels as the Court is in essence ordering the transfer of the 1986-87 Magnet funds to be, appropriately, a component of the LRMP budget approved herein.
The Lincoln College Preparatory program has been a very successful program. The Court finds that the expansion of seats proposed by the District for this program to be an appropriate method of expanding the accessibility of this program. Moreover, the Court finds that the conversion of the Middle School facility and the integration of this program with that of the high school at Lincoln College Prep would have a beneficial effect on the ability of the District to implement this highly successful theme. The Court will order that the District implement the changes necessary to transform the Lincoln South facility into the College Prep
15

middle school facility. Again, the Court finds that the current budget allocated to those programs to be transformed should be adequate to fund the resulting middle/high school programs. However, should the District find that there exists a budgetary shortfall or windfall in this area, as a direct result of the conversion, the Court will entertain motions for adjustments as necessary.
The Court has considered the LRMRP's modification to the Foreign Language Immersion Program and finds that the purported benefits do not justify the significant changes to the program. This is a result of the Court's refusal to magnetize all of the elementary schools in the district. The LRMRP's adjustments to the Foreign Language Program presupposes total magnetization. The Court has not agreed that the traditional schools should take on the themes as suggested in the LRMRP. Therefore, the theme changes in the Foreign Language Program are inappropriate. The Court does find that the District is correct in its assumption that the Full Immersion programs are successful. The demonstration made by the third-grade science class, in french, at trial was very impressive. As the Court has stated on many occasions, it is not an expert on the methodology of educational instruction. Therefore, the Court will grant the District the appropriate latitude to implement full-immersion programs within the language programs available under the LRMP. The Court will deny any other modifications as they might apply to the traditional elementary schools.
The Court finds that the Lengthened School Day and Extended Year programs are both successful programs in promoting desegregation and achievement in the KCMSD. However, the changes promoted by the Renewal Plan are not going to be adopted by the Court as a part of the Renewal Plan. The Court finds that these programs should be continued as they are
16

currently being administered. The Court will order continued funding of these programs as done under the LRMP and under the other funding components of the desegregation program. There shall be no changes as to these two programs.
The Renewal Plan proposes significant changes in the area of staffing. This has been a primary concern to the Court throughout its evaluation of the Renewal Plan. The State is correct in its assertion that the management of the magnet program has been anything but stellar. (The Court has taken the liberty of summarizing the State's consistent position on the management of the magnet program). The Renewal Plan proposes what the Court interprets to be an entirely new level of administration for the magnet plan. If there is one thing that the KCMSD certainly has enough of it is administration. The administration of the magnet schools has, in many instances, left much to be desired. The last thing this Court is inclined to do at this point in the development of the magnet program in the KCMSD is to add another layer of administration. The Court is quite satisfied that the teachers have given their best efforts in educating the young people in the KCMSD. However, the administration, from the building supervisors up, need to work with much more industry to effectively implement the current themes offered in the district. The Court has become aware on several occasions of administrators who have not adequately sought to become certified in their respective theme. It is because of the current state of the administration in the magnet programs that the Court finds that the implementation of the changes in the Renewal Plan are wholly inappropriate.
The Renewal Plan proposes an extensive process for evaluation of the magnet plan. This process of evaluation appears to include a large amount of administration. While the Court finds that evaluation of the magnet program is desirable and necessary, the Court finds that the
17

program offered by the District through the Renewal Plan does not attain the goal of evaluation in the most cost effective manner. The Court will instruct the District to make arrangements to effectively evaluate the magnet programs over the extension period. The Court will view the results of the District's efforts with a very critical eye at the point in the future where the Court is called upon to determine any additional extensions.
The next item considered by the Renewal Plan is the non-salary budget. The District has made extensive analysis of the individual magnet programs and developed an estimate of what the upkeep on these programs will be over the next ten years. The Court finds that the figures presented by the District are unreliable because they are based on the primary assumption that the Renewal Plan would be adopted as proposed, including the many changes in themes. The Court does recognize that the equipment provided in the original LRMP has a finite life. The current budgeting process used by the district includes provisions for capital replacement. The District may argue that the inclusions are insufficient. The Court, at this point, will deny the extensive magnet resource component of the Renewal Plan and order the District to continue operation of the magnets within the budgets as currently set for their operation. The plaintiffs illustrated the problem of ordering a strict one-year roll-over of the budgets in that there are several items which were one-time expenses that do not need to be included in a subsequent budget. The Court has considered this fact and finds the plaintiffs' point to be well taken. However, the Court will allow the District the budgetary flexibility, subject to review by the DMC as per the past course of business, to make appropriate adjustments for the upcoming school years.
The last area of concern to the Court in the Renewal Plan is the capital facility
18

requirements. The Court has reviewed with severe dismay the progress of the Capital Improvement Project previously ordered by this Court. The Court is aware of significant difficulties with the Project Management Team and bringing the project in on-time and onbudget. The Court has previously denied the implementation of the many new themes requested by the District under the Renewal Plan. The prospects of a voluntary interdistrict transfer program and pending legislation in the Missouri Legislature both support the Court's decision to deny the capital improvements requested by the District in the Renewal Plan. As it has been well shown that the capital facility requirements are being met under the current plan, the Court finds that it would be inappropriate to extend that program at this point.
The Court finds that a ten-year plan by the District as to the future of the magnet plan and the desegregation program in general is a superior concept. The Court supports the District's effort in that regard. The Renewal Plan offered by the District is not supported by the evidence and for the reasons previously announced the Court will deny its adoption.
The magnet program has provided significant advantages to the students of the KCMSD. The neighborhood school options, however, are a very important aspect of the KCMSD system generally. The Court has helped the District fashion a magnet program to allow a choice to the non-minority parents and students enrolling in the KCMSD. However, the District's Renewal Plan fails to protect this same choice to those currently living in the KCMSD. The opportunities available in the traditional schools are important to a significant number of parents and students in the KCMSD. The Court is troubled by the fact that these traditional schools have maintained a pattern of racial isolation. The Court finds that this is in part due to the poor planning and administration of the KCMSD. The District should explore more carefully its options in
19

assigning students to reduce racial isolation. The evidence showed, on more than one occasion, that racially isolated schools (90+ % minority) exist in predominately non-minority neighborhoods. This evidences to the Court either a lack of effort or an intent on the part of the District.
The Court has before it the motion for a ten-year extension of the magnet plan. It is important to the Court that the magnet plan be maintained, as is, due to its positive impact on both the desegregation effort and on achievement. However, the plan offered by the District does not accomplish the needs of the magnet plan. The Court will order a two-year extension of the current plan with the modifications as outlined above. This two-year extension is necessary to maintain the integrity of the programs currently offered and to allow the District to better measure the effectiveness of the programs.
The District has repeatedly requested that the Court provide extravagant programs based on the hopes that they will succeed in the desegregation effort. The Renewal Plan offers many of these same types of extravagances. The Court finds that the current plan has both the present and future potential to succeed in its major effort of desegregation. What the Court needs from the parties is an effective method by which the District may fund its share of the programs. The District's proposals do not include a viable method of financing any of the programs.
The Court, in giving due consideration to the viability of any future extensions of the Long Range Magnet Plan, has found that certain information would be beneficial. The economic feasibility of financing the desegregation effort in the KCMSD has not been addressed sufficiently for the Court. The Court, therefore, instructs the District to submit a financing proposal to the Court and in doing so it should follow the assumptions as set forth below.
20

First, the District is instructed to submit a plan reflecting the ability of the District to fund 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. In formulating this plan, the District should assume that the current Court ordered funding would be withdrawn at the alternative intervals of three, five, seven, or ten years from the date of this order. Based on this assumption, the Court instructs the District to submit a plan showing what is necessary to fund the school district through the operating budget alone. The Court expects the District to provide fairly complete operating budget projections for each of the above listed scenarios.
If the current method of financing is insufficient, the District should submit the financial ramifications of at least two financing alternatives and should use the current bills pending in the State Legislature as guides. Next, the District should present the Court with its analysis with the assumption of a status quo in the Foundation Formula. If the District chooses to submit additional analyses with varying Foundation Formula funds its assumptions should be made clear to the Court. Lastly, should the District have a solid basis to include the effect of a Voluntary Interdistrict Transfer Plan the Court would be interested in having the analysis to include such an assumption. However, the Court will order that the District provide the Court with at least one analysis that includes no VIDT plan.
Second, the State is instructed that if it so chooses, it may submit plans with the similar assumptions as outlined for the District above. The Court is not ordering the State to submit such a plan but if the State finds that it has sufficient information available to make an instructive proposal then the Court will certainly be willing to evaluate such information. The
21

Court encourages the State to submit a financing plan. The Court has found that the above requested information would be most helpful in
analyzing the long term planning for the desegregation plan. Therefore, the Court will order the District to submit its analysis by June 30, 1993. The State will also have until September 1, 1993 to submit any analysis which it finds would be of benefit to the Court.
Accordingly, it is hereby ORDERED that the KCMSD and plaintiffs' motion for approval of the Long-Range Magnet Renewal Plan is denied in part and granted in part consistent with this order; and it is further ORDERED that the current LRMP is extended for a two-year period with the same budgetary levels subject to reasonable modifications with the supervision of the DMC; and it is further ORDERED that the District is to implement a procedure to consistently measure and evaluate the effectiveness of the magnet programs and this is to be done within the current budgetary constraints of the magnet program; and it is further ORDERED that the District is to implement a Montessori theme at the new elementary school to come on-line for the 1993-94 school year; and it is further ORDERED that the District request to modify the themes at Lincoln College Prep and Middle School is granted; and it is further ORDERED that the State's request to operate three District schools under an OBE program is denied; and it is further ORDERED that the District is to submit a financing proposal as outlined herein by
22

June 30, 1993; and it is further ORDERED that the State may, but is not required to, submit a financing proposal by
September 1, 1993; and it is further ORDERED that the capital improvements requested by the District are granted only to
the extent necessary to implement the theme additions and modifications approved by the Court herein.

Date: April

, 1993

RUSSELL G. CLARK, SENIOR JUDGE UNITED STATES DISTRICT COURT

23

 
 .4*ggrol ,

.

t4„

• ••-r.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

c\=1

-1°-*

MAY 6 1987
• S. DCiSOTRNICNTR()2 Clk 1 1,EST C:37-kC°-". °F AllSaGuRieir

A%

C"11

KALIMA JENKINS, et al., Plaintiffs,
v.

‘.\
Case No. 77-0420-CV-W•4

STATE OF MISSOURI, et al.,

Defendants.

OPPOSITION OF THE STATE OF MISSOURI TO KCMSD MOTION FOR APPROVAL OF LONG RANGE CAPITAL IMPROVEMENT PLAN
The State of Missouri and related defendants (collectively, the "State") hereby oppose the motion of the School District of Kansas City, Missouri ("KCMSD") for an order approving its proposed Long-Range Capital Improvement Plan (the "Plan") and the related funding for projects identified as scheduled through the fall of 1 990. For the reasons that follow, the State submits that KCMSD's motion should be denied.1

1 The Court's scheduling order, as amended, required the State to file its opposition to the KCMSD Plan by May 6, 1987, and to file any alternative plan on or before June 2, 1987. The State is presently considering an alternative capital improvements plan for the Kansas City School District that reflects the same views expressed herein, and architects retained by the State are inspecting the KCMSD school buildings to determine the necessity for the renovations proposed by KCMSD and the reasonableness of KCMSD's estimated costs for that work.
The State believes that the scope of KCMSD's proposed

I. SUMMARY OF ARGUMENT
KCMSD's Plan, authored by Dr. Richard C. Hunter and
endorsed unquestioningly by KCMSD and the Desegregation
Monitoring Committee alike, is premised on a demonstrably
unrealistic prediction of student enrollments that KCMSD's own
Department Of Planning, Research, Evaluation and Testing
(hereafter "Planning Department") has rejected as recently as
February of this year. In addition, the Plan proposes funding
— allocations through the year 1990 that virtually absolve KCMSD
and the citizens of the District of their traditional
responsibility to support public education. If approved in its
current form, KCMSD's Plan would have the State fund some 94% of
an excessive renovation and reconstruction program of the KCMSD
•
school system that is neither justified nor required. 2 The end result would be the waste of substantial funds already expended
renovations exceed those reasonably required as a part of a desegregation remedy, and will present that position in greater detail in its June filing and in the evidence it will present at the hearing scheduled to commence on August 3, 1987.
2 KCMSD seeks funding for proposed building projects scheduled for completion by the fall of 1990 of $202,202,625 in accordance with the chart entitled KCMSD Capital Funding Proposal ("Chart") attached to its Plan at Tab D. See Chart at 4. (This is an expanded version of the information contained in the untitled Chart submitted with KCMSD's Motion.) KCMSD's proposed allocation of the funds to be committed through the fall of 1990 calls for expenditures by the State of $190,345,862 and expenditures by KCMSD of only $11,856,763. Id.

on renovation of buildings KCMSD now proposes to abandon, and the construction of unneeded facilities that will further tax KCMSD's demonstrated inability to maintain the assets it presently administers.
KCMSD's Plan seeks to perpetuate the District's abandonment of its own responsibilities and continues the lack of. planning and initiative that have brought the District to where it stands today. The State therefore urges that KCMSD's motion for approval of its Plan be denied.
II. ARGUMENT
A. KCMSD'S PLAN IS PREMISED ON UNREALISTIC ASSUMPTIONS
REGARDING FUTURF STUDET ENROLLMENTS.
While acknowledging that the population within the KCMSD "will continue to decline through the year 2005," Plan at 22, and that construction trends within the downtown area are "not likely to produce school-age children for the KCMSD," Plan at 17,3 KCMSD's Plan nonetheless projects an increasing student enrollment through the year 1995. Dr. Hunter's stated rationale for this illogical projection is that an increasing enrollment is
3 According to the statistics cited in the Plan, KCMSD enrollments declined more significantly than did population. The population decline during the period 1970-80 is reported to have been 25.3%, whereas the student enrollment declined by 44.8%. Plan at 22 & 23.

the "only scenario for the City worthy of consideration at this time." Plan at 23. However, KCMSD's Planning Department has
repeatedly projected future student enrollments that are significantly lower than those predicted in the Plan, and KCMSD's existing school buildings are generally adequate to house the
more realistic student population that KCMSD's Planning Department anticipates. Thus, KCMSD's Plan is premised on the need to accomodate an increasing student population that KCMSD's own Planning Department and all other relevant data reject.
Recognizing the obvious flaw in its critical enrollment assumption, KCMSD notes that it seeks funding only through the fall of 1990 and promises that it will seek to revise its Plan in two or three years if the KCMSD enrollment assumptions prove too optimistic. See KCMSD Motion For Approval Of Long-Range Capital Improvement Plan ("KCMSD Motion"), at 3. 4 This is a false promise, however. By 1990, some 71% of the total construction funds envisioned by KCMSD's Plan are scheduled to have been committed or spent. 5By then, it will be too late for any
4 KCMSD's Motion identifies potential participation by the suburban districts in a voluntary interdistrict transer program as another possible factor that might lead to lower student enrollments than those on which its Plan is based. See KCMSD Motion at 3. For present purposes, the State's opposition focuses primarily on the flaws in the Plan's enrollment projections themselves, and does not address the necessity of adjusting enrollment projections downward in the event a voluntary interdistrict transfer program were implemented.
5 KCMSD attempts to camouflage its excessive program by promising to re-evaluate its needs in two or three years and by seeking funding only for projects planned through 1990.
- 4 -

meaningful reevaluation of what is already a demonstrably unrealistic set of student enrollment assumptions. By the time KCMSD's proposed reconsideration occurs -- if it occurs at all -- the District hopes to be far advanced in a construction program destined to build half-filled classrooms it cannot maintain.
1. The Enrollment Assumptions of KCMSD's Plan Are Contradicted By All Available Data.
KCMSD's Plan is based on student enrollments derived from its Alternative III, which Dr. Hunter characterizes as the only scenario "worthy of consideration at this time." Plan at 23. However, Alternative III projects student enrollments that are significantly at odds with available data, and with the current projections of KCMSD's own Planning Department. All current evidence indicates that Alternative III is more a dream than a realistic basis for responsible planning for significant capital expenditures.
According to Dr. Hunter, Alternative III assumes an improvement in the "capture rates" attained by KCMSD and was established by using "[e]ssentially, the 1970 capture rate ... to
These efforts are of no value. The total funds through 1995 envisioned in the Plan is $267,235,677, before adjustment for inflation. See Chart at 4. The corresponding proposed funding commitments through the fall of 1990 (on a pre-inflation basis) of $190,765,229 represents some 71 96 of the total funding envisioned by KCMSD's Plan through 1995.
5

forecast future enrollments." Plan at 27. Dr. Hunter notes, moreover, that the enrollments projected in Alternative III are similar to enrollments that would be achieved if a sufficient number of nonminority students entered the KCMSD system to attain the goal of 40% nonminority enrollment set forth in KCMSD's Magnet Plan. See Plan at 28-29.
Neither Dr. Hunter nor KCMSD offer any legitimate justification for the selection of the 1970 capture rate as a basis for predicting future enrollments, other than unsupported judgments offered by Dr. Hunter to the effect that Alternative III reflects the anticipated results of changes already begun and envisioned for the KCMSD and "projects the most probable capture rate." 6 See Plan at 29. No substantive basis is set forth for the selection of the 1970 capture rate, nor is any explanation
•
offered of how the KCMSD will attain overnight a capture rate of an era of sixteen years past, the last year when the District had a numerical majority of white students. Clearly, Dr. Hunter has substituted hope for analysis. KCMSD, in turn, has ignored the considered views of its own Planning Department in adopting Dr. Hunter's strategem in its Plan.
6 The recent depositions of Elaine Tatham, author of the MidAmerica Regional Council ("MARC") report entitled "Enrollment Forecasts," upon which Dr. Hunter relies, see Plan at 10, and Marlene Nagel, designated representative of MARC, made clear that the 1970 capture rate utilized in Alternative III was chosen by them simply because it was a year for which significant data exists. Neither Tatham nor Nagel made any effort to determine if KCMSD is likely to return to that capture rate, and when such a return would occur.
- 6 -

The contrast between Alternative III created at Dr. Hunter's behest and reality can be demonstrated by the data reported in the Plan itself. For example, Alternative III projects a total student enrollment of 44,879 for the 1985 school year. See Table 15 of Appendix I, at 31. However, the KCMSD Planning Department projected an enrollment of 36,451 for the 1985 school year, see Plan, Table 25, Appendix I at 81, which was reasonably close to the actual enrollment of 36,259 for the 1984/1985 school year and 35,590 as of January 29, 1986. See Plan at 24, Table 27, Appendix I, at 87.
The Planning Department's more recent data and projections confirm the folly of relying on Alternative III enrollments as a basis for long-range capital planning. In February of 1987, the Planning Department issued a report entitled "Projected Enrollments And School Building Utilization For 1987-88 School Year (hereafter "February '87 Projected Enrollments"). 7 As that report indicates, the total District enrollment in September 1986 was 36,309 students, and the Planning Department projected a September 1987 enrollment of 36,322 students. See February '87 Projected Enrollments at 4.
7 This report represents an update to the May 1986 School Building Utilization Study cited by Dr. Hunter. See Plan at 40. The School Building Utilization Study, together with the February '87 Projected Enrollments and a subsequent update and modification entitled "Projected Enrollments And School Building Utilization Fcr 1987-88 School Year," dateC. March 6, 1987, are set forth in Exhibit 1 hereto. As can be seen by examining the March 1987 update, its enrollment projections do not materially differ from those of February 1987.
- 7 -

Finally, the reported enrollment as of January 28, 1987 was
35,899 students, 8 which is close to the Planning Department's
projection and significantly less than the enrollment that would
be expected if Dr. Hunter's Alternative III were realistic.
The KCMSD Alternative III predictions for future years
are equally misplaced. Alternative III projects an enrollment of
47,107 students for 1990, whereas KCMSD's Planning Department
predicts 37,870 for that year. As noted above, the minimal
enrollment increases to date indicate that the Planning
Department's projections are considerably more reliable than
Alternative III. Similarly, KCMSD's Alternative III predicts
47,898 students in 1995; KCMSD's Planning Department estimates
that the 1995/1996 enrollment will be only 39,589.9
Enrollment projections undertaken independently by the
School Data Section of the Missouri Department Of Elementary And Secondary Education (hereafter "DESE") 10 further confirm the
KCMSD's enrollment as of January 28, 1987 is set forth in its Student Membership Report, which is Exhibit 2 hereto.
9 KCMSD's Alternative III is reported at pages 27 and 28 of the Plan and in Table 15 of Appendix I thereto. The projections of the KCMSD Planning Department are set forth in Tables 25 and 26 of Appendix I, and the actual enrollment figures for 1934/1985 and January 28, 1986 are set forth at page 24 of the Plan and Table 27, Appendix I at 83-87.
10 Beginning in the 1978-1979 school year, DESE compiled enrollment projections for the school districts, based on accumulated enrollment data and cohort survival projections. Beginning in 1980, DESE provided the school districts its projections for their use in planning and for other purposes, and it has maintained that practice since that time. The DESE projections previously provided KCMSD are set forth in Exhibit 3, hereto, together with other DESE projections of KCMSD
- 8 -

disparity between the student enrollments Dr. Hunter has created for the purposes of this Plan and the most probable KCMSD student enrollments for future years. The DESE projections are generally in accord with those of KCMSD's Planning Department, and thus are equally at odds with Alternative III. For example, DESE projected.a total enrollment of 36,028 for 1985 -- similar to the • KCMSD's Planning Department's projection of 36,451 and the reported actual enrollment of 36,259. For 1990, DESE projects an enrollment of 35,701 students, a figure that is reasonably close to the KCMSD's Planning Department's projection of 37,870 and substantially lower than the Alternative III projection of 47,107.11
Finally, more recent available enrollment data also
impeaches Dr. Hunter's Alternative III. In defending his choice of Alternative III, Dr. Hunter asserted that "under any of the
projected scenarios, all indicators of future enrollments suggest
a significant increase beyond the enrollment of 36,309 students for 1986-87." Plan at 28. The real facts indicate the contrary. Although Dr. Hunter's Alternative III posits a total enrollment of 44,879 in 1985 and increasing enrollments thereafter, the
enrollments. 11 The State notes that the text of the Plan projects an Alternative III enrollment of 47,107. See Plan at 28. However, in Table 15, Appendix I, the Alternative III 1990 enrollment is projected at 47,117. The State has relied on the lower number, but acknowledges that the difference is likely immaterial.

actual reported enrollment for KCMSD as of January 28, 1987 was less than 36,000 students. Again, the real enrollments reported by KCMSD hardly suggest that additional students are flooding the KCMSD system as Dr. Hunter assumes they would be by this time.
2. KCMSD's Facilities Suffice To House The Reasonably Expected Student Enrollments Without Additional Expansion.
The data set forth in the Plan itself reveals how KCMSD's proposal is driven by its demonstrably mistaken assumptions concerning student enrollments in future years. In fact, KCMSD facilities currently in operation are adequate to house the present student enrollments, as well as the realistic projected future enrollments. No additional buildings are required.
The Plan reports that KCMSD had 21,087 elementary school students during the 1985-86 school term in grades K-6, who were housed in 50 elementary school facilities. See Plan at 29. Anticipating a change in elementary format from K-6 to K-5 , Dr. Hunter reports that the Alternative III enrollments for K-5 for 1995 -- the base year chosen for planning purposes -- is 22,943 students. Plan at 38. Based on that assumed student enrollment, and a recommended 90% utilization rate, Dr. Hunter asserts that the existing KCMSD building capacity would house 20,084 students, and thus that KCMSD would be short of capacity for 2,859 elementary students in 1995, requiring an additional 119.13 classrooms. See Plan at 42.
This reported "shortfall," however, is contrived from Dr.

Hunter's reliance on Alternative III as the data in the Plan demonstrates. In fact, KCMSD's reported capacity of 20,084 elementary students is more than adequate for the 18,840 students that KCMSD's Planning Department projects for grades K-5 for that year, cf. Table 26, App. I at 82, and reflects an excess capacity that is capable of absorbing even a substantial increase in enrollments if that should occur. Thus, the Plan's proposed new building program for elementary schools reflects in large measure KCMSD's false premise of significantly increasing elementary enrollments. Since the. Plan generally contemplates elementary school buildings that will house from 400 to 600 students, 12 at least three of the proposed new elementary schools are totally unnecessary.
The Plan's asserted "shortfall" in building capacity is equally contrived for the middle and high schools. Again, no new building program is required to accomodate realistic student enrollments for future years. The Plan's prediction of a capacity shortfall of 170.19 middle school classrooms in 1995, see Plan. at 55, assumes that the fictional Alternative III enrollment of 11,896 middle school students in 1995 must be accomodated. See Plan at 52-53. In fact, Dr. Hunter reports
12 The proposed new elementary schools generally are to accommodate enrollments of 400-600 students, although the proposed elementary school at New West is to accommodate 1000 students. The average student size for all proposed new elementary schools is 565 students. See Plan, Table 3, App. II, at 8.

that the projections of KCMSD's Planning Department for middle school enrollments for grades 6-8 for 1995 (including special education and other special students) is 8,929, see Plan at 53, and that the capacity of the existing KCMSD middle schools and the one new middle school already authorized by the Court is 8,322, see Plan at 55, which is virtually the same as the KCMSD projected enrollment for 1995. Thus, Dr. Hunter's reported "shortfall" of 170 classrooms is only created by manufacturing an additional 3,000 students through reliance on Alternative III enrollments rather than the more likely enrollments that KCMSD's Planning Department has established.
Similarly, Dr. Hunter reports that KCMSD Planning Department projections anticipate a total high school enrollment of 10,649 in 1995-96. See Plan at 62. 13 According to Dr. Hunter, the building capacity of the present high school buildings is 11,848. The Plan anticipates an increase in capacity to approximately 12,073 if KCMSD's challenged Magnet Plan is implemented. See Plan at 64. Thus, the existing buildings are adequate to house the realistic future enrollments projected by KCMSD's Planning Department, and substantial excess capacity would be generated if the challenged Magnet Plan is
13 Table 26 of Appendix. I, which Dr. Hunter cites, reflects an enrollment of only 9718 students. The State cannot determine at this time whether Dr. Hunter's larger enrollment figure is in error, cr whether it purports to include special students or some other consideration that is not explained. If Dr. Hunter's larger enrollment figure is an error, the excess capacity is even greater.
- 12 -

implemented as proposed. In spite of those facts, Dr. Hunter concludes that all of this additional construction is required to accomodate Alternative III's fictional enrollment of 13,060. See Plan at 63-64.
3. KCMSD's Reliance On The Assumed Drawing Power Of Magnet Schools Is Unsupported By All. Available Evidence.
Since KCMSD's Plan places significant reliance on the anticipated increase in student enrollments that assertedly will be attained as a result of the magnet programs the KCMSD is attempting to implement, an examination of that proposition is warranted. In fact, the experience of St Louis and Kansas City both indicate that Dr. Hunter's extreme optimism is misplaced.
Like Kansas City, St. Louis established a "goal" of attracting a 40% nonminority enrollment into its magnet schools, and the Court of Appeals held in Liddell IX that interdistrict magnets should not be approved unless there is "a reasonable probability that at least forty percent of the white students will be residents of the suburbs ...." Liddell v. Board of Education, 801 F.2d 278, 282, reh'q denied, 804 F.2d 500 (8th Cir. 1986). As the Eighth Circuit noted in Liddell IX, in the 1985-1986 school year, only some 115 suburban white students were attending interdistrict magnets in St. Louis and only a p proximately 375 suburban white students were enrolled in the intradistrict magnets. Id. at 280. As the Eighth Circuit noted, only some 12% of the white students attending interdistrict

magnets in St. Louis were from the suburban districts. Id. at

282, n.3. More important for present purposes, however, the 115

suburban white students attending these magnets represent only

some 6% of the total enrollment for those schools. Cf. id.

Judge Limbaugh's recent opinion in Liddell likewise

affords no basis for the optimism expressed by Dr. Hunter and

KCMSD. After examining the likelihood of achieving the 40%

nonminority goal in a proposed magnet elementary investigative

learning center at Kennard, the Court concluded that the

"probability of attaining a 40% figure within three years seems

,m

untenable."

Liddell v. Board of Education, No. 72-100 C(5),

slip op. at 9 (E.D. Mo. March 17, 1987) .14 Considering the

likelihood that another magnet would attain the 40% nonminority

goal in the absence of evidence of progress in that regard, Judge

Limbaugh noted that the proposed renovation costs were an

"astronomical sum of money to risk" in the hope of attaining this

40% goal, and that it could be "fiscally imprudent" to expend the

proposed sums on renovation when such a low percentage of

students were county transfers. Id. at 8.

While the magnet programs of St. Louis are admittedly not

identical to those implemented and proposed for Kansas City,15

14 For the convenience of the Court, this opinion is set forth as Exhibit 4 hereto.
15 In St. Louis, the Court began with an intradistrict magnet program in 1980, and interdistrict magnets began in 1981 and increased in number from 1981 through 1984. Currently, there are 26 magnet schools in St. Louis.
- 14 -

the St. Louis experience certainly provides reason to question
the rampant optimism of KCMSD and its expert. The St. Louis
interdistrict magnet schools are now in their fourth year of
operation, and their fourth year enrollment of white students
from the suburban school districts is only 136 students. 16 To
date, the "goal" of attracting a substantial number of students
from the St. Louis suburban school districts into the city school
system has not even been approached.
The history and experience of KCMSD's development of its
all-encompassing long range magnet program further evidences the
remoteness of the possibility that the anticipated magnets will
The interdistrict magnet schools in St. Louis have demonstrated a limited ability to attract white suburban students, and certainly nothing approaching the 40% goal established by the Courts. In the years 1983-84, 1984-85 and 1985-86, these schools have, as a group, attracted white student enrollments from the suburbs of 4.6%, 5.6% and 6%, respectively. See Intra-City Magnets, Enrollment And Budget Analysis, Exhibit 5 hereto. The most recent interdistrict magnet white enrollments from the St. Louis suburbs for the seven interdistrict magnet schools is 6.2% of the total magnet student population. See St. Louis Magnet Schools/Programs, Analysis of Suburban Contribution As Of October 10, 1986, Exhibit 6 hereto.
The only magnet themes that appear to have significant attraction are the Visual and Performing Arts I ("VPA I") program, which reflects a 10% white suburban student enrollment for the 1986/87 school year, and the Military Middle Magnet, which has an 11.5% white suburban enrollment for that same school year. The VPA program seems to lose its attractiveness, however, since the VPA II program shows only a 6.3% white suburban enrollment. Id.
16 During this fourth year, the white intradistrict enrollment is approximately 404 students, for a total of 540 white students in the total magnet programs in St. Louis. See Exhibit 6 hereto.
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attract the kinds of enrollments that KCMSD relies on in

proposing its Plan. In fact, experience to date confirms the

State's previous concerns that KCMSD's rush to adopt an ill-

considered magnet program made it most unlikely that the program

would accomplish its goals.

KCMSD gave magnet schools very little emphasis in its

initial remedial plan filed in January, 1985, and magnet schools

were not emphasized by this Court until June 1985, when it

directed KCMSD to propose a budget for added funding of existing

magnets in KCMSD and to conduct extensive surveys to identify

magnet themes that would be most likely to attract nonminority

student participation. Jenkins v. State, 639 F.Supp. 19, 34-35

(W.D. Mo. 1986), aff'd in part and rev'd in part, 807 F.2d 657

(8th Cir. 1986), pet'n for cart filed,

U.S.L.W.

(April

23, 1987). As the Court will recall, KCMSD's Court-ordered

surveys evidenced some community support for programs for gifted

students, as well as for programs emphasizing science and

technology, which, in turn, produced an initial plan calling for

some half-dozen magnet schools during the next few years and

further planning based on the experience of those programs. This

proposal was rejected by the KCMSD Board, however, apparently

because it was not sufficiently sweeping in scope.

Shortly thereafter, KCMSD advanced a considerably more

grandiose magnet plan that largely ignored the results of the

Court-ordered surveys ("Magnet Survey"), 17 which had generally
indicated that parents are considerably more interested in the
basics of education than such esoteric concepts as the "Classical
Greek" education and foreign language programs that are currently
showcased by KCMSD. 18 In fact, KCMSD has consistently proposed
magnet programs that generated low levels of community interest
17 Although KCMSD maintains that its current proposals are based on these surveys, it is clear that its reliance was minimal. For example, although only a minority of parents were interested in magnet schools for elementary students, see A Qualitative Report on Attitudes Toward Magnet Schools at 31, over half of KCMSD elementary schools are to be converted to magnets. Similarly, the Magnet Survey reports that parental interest was lowest in foreign language magnet programs. See Magnet Survey at 17. KCMSD was unwise to ignore the results of their own survey; as reported in the Kansas City Times, the French and the German language magnet elementary schools received only a small number of first-choice applications. See "Magnet Applicants Mainly. Minority," Kansas City Times (April 23, 1987), attached hereto as Exhibit 7. Moreover, although KCMSD has criticized the surveys, it has made no apparent effort to undertake additional surveys or engage in other means of measuring and responding to community interest and preferences. The handful of community hearings conducted prior to the submission of the magnet plan generally occurred after the plan already had been drafted by the consultants and during the summer vacation, when public involvement in school activities is at its lowest.
18 Another KCMSD witness, Dr. Holmes, testifed in May 1985 that it is difficult to attract students from parochial schools and other private schools, see May 1985 Tr. at 22,89122,892, and surveys indicate that parents of the suburban school systems are generally satisfied with the schools in their areas. Moreover, KCMSD's Planning Department has noted its inability to predict the possible future impact of the District's magnet and other programs on student enrollments, and the Planning Department thus has limited its planning based on a change in enrollment patterns to contingency planning so that the District might be prepared in the event such increases occur. See School Building Utilization Study, Exhibit 1 hereto, at 15-16.

or were not included in the surveys at all. Thus, it is not surprising that considerable parental skepticism is expressed in the recent series of articles on KCMSD's magnet programs in the Kansas City Star. See Exhibit 8 hereto.
Finally, KCMSD's student enrollment experience to date provides no support for KCMSD's assumption that the school system will generate the dramatic turnaround in student enrollments that Alternative III assumes. Although some modest increases in enrollment are evident in the 1986-87 school year, there is nothing to suggest that KCMSD enrollments are experiencing or will experience the dramatic revival that Dr. Hunter and KCMSD anticipate in the Plan. In fact, the actual enrollments for 1985 and 1986 are dramatically below those predicted in Alternative III. Additionally, although the KCMSD magnet schools reported increased enrollments from the 1985-86 to 1986-87 school year, including an increase of 268 white students, KCMSD's report of students attending magnet programs who live outside the District's boundaries reveals that, as of January 1987, only some 55 students had been drawn into the KCMSD magnet schools from the adjoining areas. See Exhibit 9, hereto.19
19 It appears that KCMSD's ability to attract white students from private and parochial schools is not notably better. In its article entitled "School officials optimistic on gaining white students" the Kansas City Star reports that only some 120 to 180 district residents who might otherwise have gone to private or parochial schools have entered the KCMSD magnets. See Exhibit 8 hereto.

B. RESPONSIBLE CAPITAL PLANNING SHOULD ASSUME RELATIVELY STABLE STUDENT ENROLLMENTS UNLESS AND UNTIL A SIGNIFICANT TREND TOWARD INCREASED ENROLLMENTS IS DEMONSTRATED.
As the proponent of a massive long-range capital
improvements plan, KCMSD bears the burden of demonstrating tha t
the program it advances. As the United States Court of Appeals for the Second Circuit cautioned in Arthur v. Nyquist, 712 F.2d 809, 813 (2d Cir. 1983), cert. denied , 466 U.S. 936 (1984), "a court must be alert not to permit a school board to use a court's broad power to remedy constitutional violations as a means of upgrading an educational system in ways only remotely related to desegregation." This admonition bears particular emphasis here. Whatever one might think of .the merits of KCMSD's plans for the renovation of its school system on a voluntary basis, the Courtordered remedies must be specifically related to "a current condition existing from intentional state action," Washington v. Davis, 426 U.S. 229, 240 (1976), quoting Keyes v. School District No. 1, 413 U.S. 189, 205 (1973), and the desegregation remedy must be tailored to fit the nature and extent of the constitutional violation. See Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976); Milliken v. Bradley, 433 U.S. 267, 282 (1977) (Milliken II). It is apparent that KCMSD has not demonstrated any such relationship, and that its Alternative III offers no responsible basis for long range capital planning.
The facts indicate that KCMSD's Alternative III seriously
- 19 -

overestimated the student enrollments in three of the first five

years it purported to predict, and there is no reason to believe

that the accuracy of the Alternative III enrollment predictions

for future years will be any better than those of the past. Nor

can responsible capital planning be based on the promise of

reconsideration in future years if experience suggests that the

Alternative III enrollments are too optimistic. KCMSD's Plan

contemplates commitments of more than 70% of the total funding

prior to the time that its suggested reevaluation would occur,

and by that time KCMSD and the State would be trapped in a

capital improvements plan designed for a school district that

bears little relationship to the one it must manage.

In fact, KCMSD's Plan approaches the student enrollment

question in a backwards manner. Responsible planning for the

long range capital needs of KCMSD must be based on the most

likely future student enrollments, not some desired result or a

goal that has not been demonstrated to have a strong chance of

attainment. 20 To date, no significant increase in total student

enrollments is evident, and all available data

including

enrollment projections generated by KCMSD's Planning Department

20 Responsible planning should also include contingency plans for additional facilities in the event a significant increase in enrollments begins to emerge. Since KCMSD has based its Plan on the unrealistically large enrollments of Alternative III, however, no such contingency planning is apparent. All that KCMSD offers in this regard are a few statements that it will reconsider its overall plan in a few years -- by which time major capital expenditures will have been committed.

independently of this litigation

indicate that KCMSD

enrollments either will remain relatively stable or increase only

modestly during the coming years. Finally, the critical media

coverage of KCMSD's magent programs in the local newspapers,

combined with the recent failures of the KCMSD tax and bond

initiatives to obtain even simple majority support, hardly.

evidence the kind of community support that suggests a dramatic

turnaround of enrollment patterns.

In sum, there is no basis for accepting the optimistic

scenario of Alternative III as the basis for long-range capital

planning. Instead, the assumption of stable student enrollments,

or, at best, modest growth, should be the premise of any long

range capital improvements program for KCMSD, and should remain

the premise until some other trend is firmly established. Any

planning that assumes significantly larger enrollments should be

limited to contingency planning, directed to the identification

of modifications that might be required to accomodate a larger

student population if it should appear.21

21 The School Building Utilization Study, set forth in Exhibit 1 hereto, provides an example of such contingency planning. Noting the that the impact of magnet school attendance, possible voluntary transfers, Court-ordered minimum class sizes, and implementation of middle schools "cannot be predicted at this time", the Planning Department recomended against changes in school attendance zones and building utilizations based on those unpredictable considerations, see School Building Utilization Study at 15, and provided some contingency planning to recognize the possibility of increased enrollments. Id. at 16, 17.
- 21 -

C. KCMSD'S PLAN MISTAKENLY PROPOSED TO ALLOCATE THE MAJOR FUNDING RESPONSIBILITY ON THE STATE.
KCMSD's motion asserts that the State is "the primary constitutional violator responsible for segregation within KCMSD," KCMSD Motion at 3, and thus seeks an order requiring the State to fund some 94% of the total capital improvements proposed for authorization prior to the fall of 1990. KCMSD's contention that the State is "the primary constitutional violator" is seriously at odds with the facts. Equally important, KCMSD's proposed funding allocations are precluded by the Eight Circuit's decision in Jenkins, which establishes that equal funding responsibilities are required in capital improvements and other desegre g ation programs.. KCMSD's Plan is simply a continuation of the capital improvements first ordered by this Court in June of 1985. The Eighth Circuit's rejection of disproportionate funding for the initial capital improvements efforts controls here as well. Thus, there is no basis for ordering that any future capital improvements receive greater State funding than from the KCMSD. See generally, State's Response To KCMSD's Memorandum Regarding Allocation Of Funding Responsibility For Desegregation Remedial Programs, filed on April 23, 1987.

III. CONCLUSION
KCMSD has failed to demonstrate either that the Long Range Capital Improvements Plan it proposes is necessary or appropriate to address the real needs of the District, or that the construction program it seeks is a reasonable means of addressing the needs of this Court's desegregation decrees. The State therefore urges that KCMSD's Motion be denied.

Dated: May 6, 1987

Respectfully Submitted,
William Webster Attorney General
Terry Allen Deputy Attorney General
Michael J. Fields Assistant Attorney General (312) 751-0531
1 7....41`t../1 1., H. Bartow Farr, III David R. Boyd Beth Heifetz
Onek, Klein & Farr 2550 M. Street, N.W. Washington, D.C. 20037 (202) 775-0184
Counsel for the State of Missouri

CERTIFICATE OF SERVICE
I hereby certify that a copy of Opposition Of The State
Of Missouri To KCMSD Motion For Approval Of Long Range Capital
Improvement Plan was hand delivered to:
Allen R. Snyder Hogan & Hartson Columbia Square 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109
and was mailed first-class, prepaid postage on this 5th day of
May, 1987 to the following:
Arthur A. Benson, II Benson & McKay 911 Main, Suite 1430 Kansas City, Missouri 64105
Theodore M. Shaw 99 Hudson Street, 16th Floor New York, New York 10013
Michael Gordon 1125 Grand Avenue, Suite 1300 Kansas City, Missouri 64106
James Borthwick 600 Five Crown Center 2480 Pershing Road Kansas City, Missouri 64108

Dated: May 5, 1987

Beth Heifetz

 
 • -4
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
CRAIG JENKINS, et al., Plaintiffs, ) Case No. 77-0420-CV-W-l-4
v. STATE OF MISSOURI, et al., )
Defendants. ) MEMORANDUM SUBMITTED BY MISSOURI SCHOOL DISTRICT DEFENDANTS, SHOWING THAT UNDER MISSOURI LAW SCHOOL DISTRICTS
ARE SEPARATE AND AUTONOMOUS POLITICAL ENTITIES. Preliminary Statement
In Milliken v. Bradle y , 418 U.S. 717, 742-44 (1974), the Supreme Court held that the school districts involved in the Detroit litigation were separate and autonomous entities, and therefore not subject to an interdistrict remedy absent evidence of constitutional violations by those school districts having a si g nificant, present-day interdistrict effect. Missouri enjoys a long tradition of local control in school affairs, and Missouri school districts are meaningfully separate and autonomous--even more so than the Michigan school districts
/ involved in Milliken.'
1/ Illustratively, as this Court has already recognized, the State of Missouri does not have authority to reorganize or
(Footnote 1 continues on p. 2)

Plaintiffs (and KCMSD) intend apparently to argue
that these districts may be held liable for alleged acts or
inaction by the State of Missouri, on some kind of a reverse
agency theory (holding the alleged agent responsible for
conduct of the alleged principal--a curious perversion of
traditional agency law). Milliken rejected that notion ex-
pressly. 418 U.S. at 746. The Sixth Circuit had affirmed the
Detroit interdistrict plan partly on the theory that the State
of Michigan had been found liable. 484 F.2d at 249. Yet
this holding was reversed by the Supreme Court, thus rejecting
any attribution of the State's conduct to the autonomous
suburban school districts. ?/ On the local control issue,
(Footnote 1 continued from p. 1)
consolidate school districts. See Order of June 1, 1981, pp. 6, 13 (citing the applicable state constitutional and statutory provisions making such matters strictly a local affair). In Michigan, on the other hand, the state did have authority to consolidate and merge school districts without their consent or any input from the local citizens. See Milliken, 418 U.S. at 796 (Marshall, J., dissenting).
-2-/- The lower appellate court attempted to distinguish Bradley v. School Board of the City of Richmond, 462 F.2d 1058 (4th Cir. 1972), aff'd, 412 U.S. 92 (1973), on the grounds that consolidation of the districts was not being ordered in Detroit. 484 F.2d at 251. Still the Supreme Court reversed, because no acts of discrimination by the outlying school districts had been shown. And as separate and autonomous entities, they could not be made a part of the remedy on that flimsy vicarious liability theory. Only the Milliken dissenters embraced the vicarious liability theory, and their view has never been the law in interdistrict cases.
-2-

the Court observed: No sin g le tradition in public education is more deeply rooted than local control over the operation of schools; local autonomy has long been thought essential both to the maintenance of community concern and support for public schools and to quality of the educational process.
Milliken, 418 U.S. at 742-43. Some of the various indicia of local control are set forth in Milliken, 418 U.S. at 742-43, n. 20. Other possible indicia were described by Justice Powell in San Antonio School District v. Rodriguez, 411 U.S. 1, 52, n. 108 (1973). All of these various factors, and more, are found in Missouri. Local control of the public schools in Missouri is as old as the state itself, and under the Tenth Amendment cannot be lightly abrogated.
Argument I. THE HISTORY AND DEVELOPMENT OF MISSOURI SCHOOL DISTRICTS
SHOW THEIR AUTONOMY FROM THE STATE. The Missouri Constitution of 1820 granted the
General Assembly limited powers concerning education. The Assembly's only duties were to provide for the preservation of lands granted to schools, and to provide for the establishment of at least one school in each township as soon as possible. Const. 1820, Art. VI.
This changed with the Constitution of 1865, which directed the General Assembly to "establish and maintain"
-3-

free schools throughout the state. Const. 1865, Art. 9, 5 1.
General supervision was vested in a new "board of education, whose powers and duties shall be prescribed by law." Const.
1865, Art. 9, 5 3. These powers and duties were prescribed in
the 1865 Missouri General Laws, on page 170, in an act to
provide for the common schools. Significantly, the powers of
control and management of public schools were granted to local
school districts, and not to the state board. L. 1865, 5 1, p. 171.-3/
On page 190 of the 1865 Laws, more powers of local school districts were set forth in "an act authorizin g anv
city, town or village to organize for school purposes with special privileges." Again, school districts were established
as "bod[ies] corporate", receiving all moneys or other property belonging or accruing to said district. L. 1865, p. 190, 5 6.
Importantly, the power to annex or otherwise expand a school
—3/ The duties of local directors were "to manage and control [the district's] local interests and affairs; to employ teachers . . . and to dismiss any teacher at any time." L. 1865, 5 6. The districts themselves were made "bod[ies] politic and corporate in law, . . ., may contract and be contracted with, sue and be sued . . ., with full power to control (their jurisdictions)". L. 1865, § 10 (emphasis added). Other powers of the local board included the making of all necessary contracts, including for school sites (5 7), and preparing a map of the district's boundaries (S 13).

district's boundaries was granted to school districts and not
to the state board. L. 1865, p. 163, 5 1.4/
This emphasis on local control of education was
again set forth in the 1874 School Code, which remained
virtually unchanged until the 1940's. The 1874 law again
established school districts as bodies corporate, with the
capacity to sue or be sued and to hold real property. L. 1874,
p. 147, 1.1/ The government and control of the district
was vested in its board of directors (S 2). A new section,
which survived in some form until 1973,6/ gave voters at the
4/ - The local directors were also empowered to determine the number and location of any schools deemed necessary (SS 7 and 8), to set the length of the school term and a suitable tax rate (S 10). There were no duties given to the state board in the 1865 laws, except the "general supervision" mentioned in the constitution. The state superintendent was given certain ministerial duties, involving touring and conferring with local districts, supervising the state educational fund, prescribing suitable forms and compiling and disseminating local school regulations. L. 1865, p. 171, SS 37-43. 5/ — The 1874 law can be found in Myer's Supplement to Wagner's Missouri Statutes, 1877 on p. 397. 6/ - Former 162.751, R.S. Mo. (repealed in 1973) empowered the voters attending the districts annual meetings to: set tax rates, alter boundaries, locate school buildings and determine the length of the school term.

districts' annual meeting extensive powers, including: changing
district boundaries, setting the length of the school year,
selecting and purchasing textbooks, setting the tax rate (not
to exceed 1%), and locating new schools. L. 1874, p. 147,
S 4.—7/
The 1875 Missouri Constitution's general provisions
regarding education generally p aralleled the provisions from
the 1865 version. 1875 Mo. Const., Art. 11, SS 1 and 4.
However, the 1875 Missouri Constitution reflected an even
firmer commitment to local control in a new clause, still in
existence today, which prohibits the General Assembly from
passing any "local or special law regulatin g the management of
the public schools, the building or repairing of schoolhouses,
and the raising of money for such purposes." (emphasis added).
7/ The local board was to make all rules for organizing,
g rading and governing the schools and had the power to suspend or expel students (S 10). The school district employed teachers (S 11), and could even grant teacher's certificates (S 32). Textbooks were selected at meetings of local boards to try to increase conformity, but no new state authority was created in this area (§ 42). Similarly, the black schools were under the control and management of the local board (S 73). The state superintendent retained his minimal powers of monitoring funds, visiting and conferring, and disseminating information (C 47). The state board was g ranted very limited and superficial statutory power, which was phrased only in terms of "general supervision" (S 88).

Mo. Const. 1875, Art. IV(53)(19); Mo. Const. 1945, Art. 111(40)(24).
This clause has been used to strike down attempts by the state
to affect the functioning of local school districts.11/
The Missouri Constitution of 1945 and present-day
Missouri statutes have changed the educational structure
very little. Local school districts in Missouri today retain
virtually all authority over the management and control
of school affairs.
The Constitution of 1945 provides that the state
shall "establish and maintain free public schools". Art. IX,
1. A state board of education with limited authority is
still provided for (5 2(a)), and succeeds to the previous
state board's powers and other powers which "may be prescribed
by law." (5 2(b)). The prohibition of special or local
legislative laws pertaining to school management is retained in
Art. III, § 40(24).
8/ For instance, a statute attempting to authorize bond issues by schools in a certain category (200,000 - 450,000) was struck down as an unconstitutional special law. Reils v. Carson, 349 Mo. 503, 164 S.W.2d 306 (1942). An attempt to set superintendent salaries for certain districts (100,000 350,000) was similarly held unconstitutional. Colley v. Jasper County, 337 Mo. 503, 85 S.W.2d 57 (1935). And a legislative attempt to authorize new school districts in a particular situation was also an unconstitutional attempt by the state to interfere in local school affairs via a special or local law. State ex. inf. Mueller v. Fry, 254 S.W. 1084, 300 Mo. 541 (1923).

Under the Missouri statutes, the state board's powers over school affairs are still quite vague and minimal, and local control is provided over virtually all phases of school operations. 1/ A statutory Division of District Reorganization is set up in § 161.152, R.S. Mo., yet this section merely provides that the state shall advise or, at the request of the county, participate with the local districts involved in formulating a reorganization plan. These sections grant the state board no effective power over local school districts in the control and management of school affairs, or for reorganization. Indeed, the 1945 Constitution, Art. III § 40(20), specifically prohibits special legislation for the purpose of "changing the boundaries of townships or school districts."
This stands in stark contrast to the numerous duties explicitly granted to local school districts. Under Missouri law, local school districts have full authority and autonomy in the following areas:
(1) political bodies corporate, with locally elected board--§§ 162.501, 162.601, 162.341, 162.371, 162.461, R.S. Mo.
—9/ The state board's general powers and duties are set out in § 161.092, R.S. Mo. The state board also requires physical education (§ 161.102, R.S. Mo.), and has some duties in setting guidelines for special education programs (§ 161.162, R.S. Mo.) and veterans education programs (§ 161.172, R.S. Mo.).
-8-

(2) day-to-day affairs conducted at the local level, with plenary power to acquire real and personal property --SS 160.011(10), 171.011, R.S. Mo.
(3) boundary changes and annexations--SS 162.431, 162.441, R.S. Mo.
(4) promulgation of rules and regulations for school operation--S 171.011, R.S. Mo.
(5) hiring and firing of teachers and personnel --5168.101, 168.114, R.S. Mo.
(6) selection of textbooks--55 170.051, 170.061, R.S. Mo.
(7) curriculum--S 170.011, R.S. Mo. (8) pupil attendance--S 167.071, R.S. Mo. (9) transportation--S 167.241, R.S. Mo. (10) setting the school term--S 171.031, R.S. Mo. (11) discretion on whether to provide kindergarten and adult education--S 171.091, R.S. Mo. (12) tax levies and borrowing money--S 164.011, 164.121, R.S. Mo. Thus, it must be concluded that Missouri school districts are autonomous political entities, and that there is a very high degree of local control over all of the important educational functions which the districts perform.
-9-

II. MISSOURI SCHOOL DISTRICTS HAVE MORE LOCAL AUTONOMY AND CONTROL THAN THE DISTRICTS WHICH HAVE PREVAILED IN OTHER INTERDISTRICT CASES.
Comparison of the Missouri statutes to those Michigan
statutes relied on in Milliken to show local control demon-
strates that Missouri school districts are more autonomous than
Michi g an school districts (particularly in view of the local
citizens' control of boundaries in Missouri which does not
exist in Michigan). In Milliken, the Court stated:
[Title Michigan educational structure. . in common with rost states, prqxdes for a large measure of local control±a and a review of the scope and character of these local powers indicates the extent to which the interdistrict remedy. . . could disrupt and alter the structure of public education in Michigan.
418 U.S. at 742-3. The Court's footnote 20 sets forth the
locally controlled educational functions in Michioan.11/
The Michigan statutes referred to in that footnote 20, with
reference to the corresponding Missouri statutes, are as
follows:
1) School districts are autonomous political bodies corporate, operating through directors popularly elected. Mich. Compiled Laws §S 340.27, 340.55, 340.107, 340.148, 340.149, 340.188--(SS 162.461, 162.501, 162.601, 162.341, 162.371, R.S. Mo.).
10/ The Court's citations are to the Mich. School Code of 1955, which has since been supplanted by the substantially similar School Code of 1976.
-10-

2) Day-to-day affairs are conducted at the local

level, in accordance with plenary power to acquire real and

personal property. MCL id., 55 340.26, 340.77, 340.113,

340.165, 340.192, 340.352--(SS 160.011(10), 171.011, R.S.

Mo.).

-

3) To set attendance areas. MCL 340.589(55 162.431, 162.441, R.S. Mo.).

4) To make rules and regulations for the operation of schools. MCL 340.614--(S 171.011, R.S. Mo.).

5) To hire and contract with personnel (including teachers). MCL 340.569, 340.574 7 -(SS 168.101, 168.114, R.S. Mo.).

6) To approve and select textbooks. MCL 340.882(55.170.061, 170.051, R.S. Mo.).

7) To determine courses of study. MCL 340.583(5 170.011, R.S. Mo.).

8) To control the admission of non-residents. MCL 340.582--(5 167.151, R.S. Mo.).

9) To acquire transportation equipment. MCL 340.594--(S 167.241, R.S. Mo.).

10) To determine the school term. MCL 340.575(5 171.031, R.S. Mo.).

11) To provide kindergarten and adult education. MCL 340.584, 340.586- 7 (5 171.091, R.S. Mo.).

12) To levy taxes and borrow. MCL 340.563, 340,567(55 164.011, 164.121, R.S. Mo.).

13) To employ an attorney. MCL 340.609- 7 (5 162.411, R.S. Mo.).

Missouri districts are also comparable in terms of

autonomy to the Virginia districts in Bradley v. the School

Board of Richmond, Virginia, 462 F.2d 1058 (4th Cir. 1972), the

Alabama districts in Lee v. Lee County Bd. of Education, 639

F.2d 1243 (5th Cir. 1981), and the Georgia districts in Armour
v. Nix, No. 16708 (N.D. Ga. 1979), aff'd 446 U.S. 931.
In Bradley v. School Board of the City of Richmond,
Virginia, 462 F.2d 1058 (4th Cir. 1972), aff'd b y an equally
divided Court, 412 U.S. 92 (1973) the district court had
ordered an interdistrict plan. 338 F. Supp. at 67. The Fourth
Circuit reversed, holding that state-imposed segregation had
been completely removed from the Richmond schools, and that
it was outside the court's authority to order consolidation
of such "separate political subdivisions." 462 F.2d at 1069.
In holding Virginia school districts to be "separate political
subdivisions" the court stated that the power to operate,
maintain and supervise public schools in Virginia is within the
exclusive jurisdiction of local school boards and not within
the jurisdiction of the state. Id. at 1066.
Virginia school law is comparable to Missouri.11/
11/ The leading Virginia case cited by the Fourth Circuit is County School Board of Prince Edward Cty. v. Griffin, 133 S.E. 2d 565 (1963). As in some of the Missouri cases cited by KCMSD and plaintiffs in their interrogatory answers, the Virginia court said that local school boards are "agencies of the State in the performance of their duties," Id. at 577. Yet the school code sets up a system where public schools are operated, managed and controlled by each locality. A history of Vir g inia education back to 1849 ended with the conclusion that "[F]rom the beginning the school boards have been made bodies corporate. They have been given the responsibility by law of . . . operating the school systems." Id. at 575, quoting Chesterfield County v. Cty School Board, 28 S.E. 2d 698 (1944). The Missouri experience is very similar. See•Part I, supra.
-12-

The state board has only "[T]hose powers prescribed by law."
Code VA S 22-16. These include several constitutionally-
conferred powers, such as filing reports, listing qualified
superintendents, "responsibility for effectuating educational
policy" and one substantive power--selecting textbooks (which
is a local affair in Missouri). VA Const., Art. VIII § 5. The state board also certifies teachers (Code § 22-202), and makes
rules and regulations not inconsistent with other laws (such as
those conferring powers on local boards). Code VA § 22-19.
In contrast, the local boards' powers in Virginia
over the supervision of schools in each school division, set
forth in Const. VA Art. VIII S 7, include: 1) Making rules for the operation of schools, conduct and discipline, and the enforcement thereof. (22-72 (1 & 2)) 2) Ultimate say in any boundary change outside the one county (city)--one school district state mandate. (22-30) 3) Hiring and firing teachers. (22-203)
4) Curriculum--very similar to Missouri, certain subjects (civics, history, hygiene, the 3 R's in elementary) mandated, then local discretion. (22-234, 233)
5) Consolidating schools. (22-72(10)) 6) Enforcing attendance. (22-209) 7) Levying taxes (22-126.1) and borrowing.
(22-120)
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8) Control of funds made available to local board. (22-132)
Thus, there is local autonomy over education in Virginia, and
the pattern is comparable to Missouri's educational structure
and the local autonomy of Missouri school districts.
In Lee v. Lee County Bd. of Education, 639 F.2d 1243
(5th Circ. 1981), the Fifth Circuit affirmed the denial of
interdistrict relief. The government had argued that all
three defendant school boards had in the past effectively
operated as one, and therefore that all three and the state
owed a duty to desegregate the Loachapoka school in Lee County.
639 F.2d at 1251. The court rejected this argument, stating:
in all the areas which the Milliken Court emphasized as being essential to the autonomy of a school district-1) political authority, 2) school finance, 3) curriculum and 4) school administration--the (3 districts) have been genuinely independent of each other for some time. Id. at 1256. The three districts here had separate school
boards, different tax rates and curricula, and didn't share
faculty or school facilities. Id. Furthermore, "[Clooperation between two or more autonomous school districts does not negate
their independent identities". Id.
The Lee County local autonomy holding is supported by
the leading Alabama case and the statutory structure of Alabama

education, which are closely analogous to Missouri-12/ As in Missouri, the state board is granted vague powers of "general
control and supervision, and shall consult... and advise
(boards, administrators, teachers, etc.)." Ala. Code Title 16,
(16-3-11). The state board's only rule-makin g power concerns
the "proper construction...(and) sanitation of schools" and the
enforcement of health, compulsory education and child conserva-
tion regulations (16-3-12). The state board also controls
teacher certification (16-3-16).
The local boards, as in Missouri and Michigan,
are entrusted with "administration and supervision" of public
schools (16-8-8). Additionally, the local boards' powers
include:
1) Being a corporate entity; can sue and be sued, contract, purchase or lease property. 16-8-40
2) Arranging boundaries of attendance zones. 16-8-34
3) Consolidating schools. 16-8-13
12/ The district court, in finding no a g ency relationship between the state and local school boards, cited the Opinion of the Justices, 160 So. 2d 648 (1964). In that opinion the justices advised Governor Wallace that the powers to place, assign, transfer or transport pupils or teachers had been conferred on local authorities and were therefore vested exclusively in them. Id. at 650. The Alabama local boards are independent of the state, and hence powers granted them are not subject to state authority. Lee v. Lee County Board of Education, No. 845-E, MD Ala. East Div., Aug. 15, 1978, p. 23.
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4) Property is vested in local board. 16-8-12
5) Employing teachers and personnel. 16-8-23
6) Curriculum (except elementary) at board's discretion, as well as grading and standardization. 16-8-28, 29, 35
7) Providing transportation, subject to state safety regulations. 16-27-1
8) Requiring and enforcing attendance. 16-28-1 et seq.
9) Choosing textbooks from a list of six in each subject approved by the State. 16-36-8
The local powers of Missouri school districts include all of
these matters and more.
Another decision noting the local autonomy of school
districts is Armour v. Nix, No. 16708 (N.D. Ga. 1979) aff'd,
446 U.S. 931. As in Michigan, Virginia and Alabama, the
Georgia school law is comparable to Missouri in terms of local
control. The district court in Armour made the following
finding of fact:
In all of the areas which courts scrutinize closely in searching for vestiges of a dual school system, there is local rather than state control in Georgia. These areas include site selection, school maintenance, funding contributions, use of school property, teacher hiring and placement, pupil assignment, pupil transportation, and curriculum.
Order of September 24, 1979, at page 5. (emphasis added).
-16-

This finding was made despite the fact that in the past the
state had "primary responsibility" for education, a fact not
true of Missouri. Id. at 2, 3. Furthermore, the court held
that "cooperation between the various defendant school systems does not in any way affect the ultimate control of the operation of local school systems. Participation is voluntary and in no way affects the autonomous function inherent in individual
12/ school systems." Id. at 8-9.
Ample support for local school district autonomy is found in the Georgia statutes, although local autonomy in Georgia is not as extensive as in Missouri. The Georgia State Board, for example, in addition to its general supervisory powers, is specifically empowered to prescribe the entire curriculum in all schools receiving state aid, as well as minimum standards for school operations. GA Code Ann. S 32-653(a). The Board is also empowered to prescribe textbooks for all courses offered by those same schools (532-707). In these two
12/ The plaintiffs in Armour sought an interdistrict remedy on the same theory that the plaintiffs are apparently going to argue here--that the Fourteenth Amendment runs against the state and its instrumentalities, and that when the state has fostered residential segregation resulting in school segregation, no instrumentality can avoid a proper remedy. The district court rejected this contention, and the Supreme Court affirmed, finding no constitutional violations had been committed by the school districts, which were separate political entities from the state. 446 U.S. at 931.
-17-

respects Missouri school districts have substantially more autonomy than in Georgia. See §§ 170.011 (curriculum) and 170.051,.061 (textbooks)., R.S.Mo.
In other respects the statutory framework in Georgia is similar to Missouri. The local boards are empowered to:
1) Control and manage the schools in their districts. (32-1101)
2) Make rules to govern the schools. (32-912) 3) Levy taxes (32-1106) and borrow money.
(32-921) 4) Select school sites. (32-1401, 1403.1) 5) Build schools, buy or lease the property.
(32-909) 6) Consolidate schools. (32-915) 7) Employ teachers and personnel. (32-662(a)) 8) Exercise discretion over transfers.
(32-663(a)) 9) Set the school term over a State minimum.
(32-658(a)) Again, all of these powers, and more, are vested under Missouri law in the local school districts.
Thus, this case presents a more compelling history of local control over education than the prevailing school districts in Milliken, Bradle y , Lee County and Armour. Before a court may lawfully impose any remedy in Missouri, the strict Milliken standards must be met by clear and convincing evidence.
-18-

The plaintiffs and KCMSD's attempts to bootstrap a school remedy by arguing for vicarious liability cannot withstand analysis. In view of Missouri's traditions of local control, and under Milliken, a vicarious liability theory just will not fly.

III. THE INDIANAPOLIS AND WILMINGTON CASES ARE BASED PRIMARILY ON STATE CONTROL OF EDUCATION; THOSE CASES THUS HAVE NO APPLICATION HERE.

Plaintiffs and KCMSD will undoubtedly cite the

14/ interdistrict cases in Indianapolis and Wilmington.--

These

decisions are not applicable because, among other things,

neither Indiana nor Delaware follow the traditions of local

control of education as Missouri does. In contrast to the

pattern of local autonomy and control in Missouri (and in

Michigan, Georgia, Alabama and Virginia for that matter),

state control of education prevails in Indiana and Delaware.

Thus, the interdistrict remedies ordered in Indianapolis and

14/ United States v. Board of School Commissioners of the City of Indianapolis, 541 F.2d 1211 (7th Cir.), vacated and remanded, 429 U.S. 1068, on remand 573 F.2d 400 and 456 F. Supp. 183, affirmed 637 F. 2d 1101 (7th Cir.) cert. denied, 449 U.S. 838 (1980); Evans v. Buchanen, 393 F. Supp. 428 (D. Del.), aff'd per curiam 423 U.S. 963 (1975).

Wilmington did not unduly impinge on independent and autonomous
local political units.-W
In Indianapolis, the district court identified three
issues of law with respect to its power to order an interdis-
trict remedy:
(1) Whether the Indianapolis Public Schools' (IPS) acts of de jure se g regation can be imputed to the state such that the state may be directed to afford relief (the reverse of the "agency" theory plaintiffs rely on here);
(2) Whether the state has the power to direct a reorganization of IPS with other districts (a power not present in the State of Missouri); and
(3) Whether the court may so act once state fails to do so.
368 F.Supp. at 1196. The court answered all three questions in
the affirmative, and ordered interdistrict relief. Id. at 1205.
The district court in Indianapolis relied extensively
on state case law. The benchmark Indiana case is State v.
Haworth, 23 N.E. 946, 947 (1890), where the Indiana Supreme
11/ Plaintiffs may also attempt to rely on the Louisville case, but it is also inapplicable fcr the same reason that the state, and not the local districts, had control of the boundary lines. Indeed, the Sixth Circuit (which had been reversed in Milliken) distinguished Milliken in the Louisville case partly on the basis that Kentucky law permitted consolidation of school districts without local consent. See Newburg Area Council, Inc. v. Board of Eduction of Jefferson County, Kentucky, 510 F.2d 1358, 1360 (6th Cir. 1974), cert. denied, 95 S. Ct. 1658 (1975).

Court stated: "Essentially and intrinsically the schools are

matters

of

state,

and

not

local,

jurisdiction.

,16/ The

court

found further support in Indiana's education statutes, which

are markedly different than those of Missouri, Michigan,

Alabama, Georgia and Virginia. "All phases of operation of the

public schools are regulated . . . by the State." 368 F.Supp. at 1201-2, citing Ind. Code 1971, 20-1-1-1 and 20-1-1-2. 17/

The Delaware system of education is even more distin-

guishable from Missouri with respect to local school district

16/ The Indianapolis court cited a considerable number of Indiana cases holding state power to be pre-eminent in Indiana school affairs. Significantly, unlike Missouri, the legislature can consolidate two school systems in Indiana without notice or referendum. State v. Mutschler, 115 N.E.2d 206 (1953). Also unlike Missouri, employees of a school corporation in Indiana are not officers of local units of self-government but of the state institution. State v. Eddington, 195 N.E. 92 (1935). Also, the General Assembly in Indiana can prescribe the terms of employment contracts of school corporations. Indiana ex rel Anderson v. Braid, 303 U.S. 95 (1937).
17/ The court's statement is supported by anal y sis of the Indiana statutes. Indiana's state board is composed of three commissions: general education, textbook adoption and teacher training and licensing. Ind. Code § 20-1-1-1. The state is authorized to (and does) regulate teacher hiring and contracts (20-6-4-1 to 20-6-4-20), schoolhouse planning and sites (20-1-1-6) and pupil personnel and guidance (20-1-1-6). The state sets rules governing transfers (20-8.1-6-3 & 4) and transportation contracts (20-9.1-2-5 to 11). The curriculum for high schools is set forth in detail (20-10-5-2), and that for junior high and elementary schools (20-10-8-1 to 20-10-17-1). The state adopts textbooks for use throughout Indiana. (20-10-6-3). The powers of local school boards are only "delegations", subject to the extensive regulations of the state board. § 20-5-2-3.

-21-

autonomy. The Delaware statutes explicitly g rant the state board almost unlimited regulator y power. Delaware statutory educational structure stands in stark contrast to Missouri (and, for that matter, Michigan, Virginia, Alabama and Georgia). The Delaware Code, Chapter 14, 5121 grants broad general powers to the state board, including: determining the state's educational policies, deciding all controversies over the administration of the public schools and school construction.
Section 122, though, is the primary source of Delaware's authority over school affairs. It provides that the state board shall adopt rules and regulations for the "maintenance, administration and supervision" of the schools, binding throughout the state, governing:
3) Grading and standardization of all public schools, equipment, number of teachers, years and grades of instruction.
4)(b) Minimum course reauirements. 5) Minimum courses of study for all public
schools. 6) Choice of textbooks/instructional materials
for all public schools. 7) Certification of all teachers (who are by
statute state employees under § 1717).

9) Admission of transfers. 10) Hours, holidays.
11) Absence of pupils.
12) Enforcement of attendance.
17) Annual statewide testing.
Significantly, under 10 Del. Code S 1001(b) the state board, unlike Missouri, is "authorized to determine and establish an appropriate reorganized school district(s) and to
implement the reorganization thereof." Under this statute the entire Delaware educational system was reorganized except for Wilmington; this was the constitutional violation upon which
the case was decided--a gerrymandering situation which is not present here.-1-8/
18/ .The holding in an early Evans case was that the state
board "is the central administrative force in Delaware's system of public education, and not a mere powerless reviewer of actions taken by local school boards." Evans v. Buchanan, 256 F.2d at 683. Therefore, there resided in the State of Delaware, through the State Board of Education, the power to direct a reorganization of the three school districts involved as agents of the state. In Missouri, on the other hand, there is no such power in the state board; the state constitution prohibits the legislature from even attempting to grant such power to thestate board.

Conclusion Local autonomy and control of public education is in everyone's best interest. It is an educational structure that works. It is responsive to the needs of all students regardless of race. Among the fifty states, Missouri is among the leaders in having citizen and parental input into locally controlled school districts. Under Milliken, Bradley, Lee County, and Armour, these school district defendants are entitled to retain that political autonomy.
Respectfully submitted, STINSON, MAG & FIZZELL

By: Geor g e

Feldmiller

Liaison Counsel for the Missouri School District Defendants

George E. Feldmiller Charles W. German Kirk T. May Daniel D. Crabtree Kenneth B. McClain STINSON, MAG & FIZZELL 2100 CharterBank Center P. 0. Box 19251 Kansas City, Missouri 64141 (816) 842-8600
Attorneys for:
North Kansas City, Missouri School District
Fort Csage School District R-1 School District of the City of
Independence Lee's Summit Reorganized School
District R-7 Grandview Consolidated School
District C-4

-24-

Conn Withers WITHERS, BRANT & HOWARD 17 East Kansas Street Liberty, Missouri 64068
Attorneys for North Kansas City, Missouri School District
Norman Humphrey, Jr. HUMPHREY & FARRINGTON, P.C. 123 West Kansas Independence, Missouri 64050
Attorneys for School District of the City of Independence and Fort Osage School District R-1
Donald C. Earnshaw 23 East 3rd Street Lee's Summit, Missouri 64063
Attorneys for Lee's Summit Reorganized School District R-7 and Grandview Consolidated School District C-4
Gene E. Voights Gary Whittier SHOOK, HARDY & BACON 20th Floor, Mercantile Bank Tower 1101 Walnut Kansas City, Missouri 64106
Attorneys for Raytown, Missouri Consolidated School District C-2
Hollis H. Hanover POPHAM, CONWAY, SWEENY, FREMONT
& BUNDSCHU, P.C. 13th Floor, Commerce Bank Buildina 922 Walnut Kansas City, Missouri 64106
Attorneys for Center School District
-25-

Jeffrey L. Lucas KURANER, SCHWEGLER, HUMPHREY,
LOWE & FISHMAN 500 Commerce Bank Building 922 Walnut Kansas City, Missouri 64106
Attorneys for Hickman Mills Consolidated School District C-1
James. H. McLarney Lawrence Maher SWANSON, MIDGLEY, GANGWERE, CLARKE
& KITCHIN 1500 Commerce Bank Building 922 Walnut Kansas City, Missouri 64106
Attorneys for Park Hill School District R-5
Timothy H. Bosler Thomas Capps LAW OFFICES OF TIMOTHY H. BOSLER 800 Westowne VIII Liberty, Missouri 64068
Attorneys for Liberty School District
Julius M. Oswald Patrick Starke Robert MacDonald COCHRAN, TYREE, OSWALD, BARTON
& McDONALD, P.C. Box 550 Blue Springs, Missouri 64015
Attorneys for Blue Springs Reorganized School District R-4

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Memorandum Submitted By Missouri School District Defendants Concerning The Housing Evidence was mailed, postage prepaid, this 17th day of October, 1983 to Arthur Benson II, Benson & McKay, 1430 Commerce Tower, 911 Main, Kansas City, Missouri, 64105, attorney for plaintiffs, and to all other counsel of record.

•c,0

..c.—..,.‘4.-,.

Attorney for Missouri School

District Defendants

(excluding KCMSD)

 
 IN THE UNITED STATES DISTRICT COURT FOR TH

r4

WESTERN DISTRICT OF MISSOURI

01 n----(1I

.1

pp
I.,

fat

14 98a

WESTERN DIVISION

/7:\ R. T. co.;;03. „;N „

KALIMA JENKINS, et al.,

Plaintiffs,

vs.

No. 77-0420-CV-W-4

STATE OF MISSOURI, et al.,

Defendants,

)

MARK ANTHONY NEVELS, by his ) next friend, MARK TODD NEVELS;

ANTHONY GREEN, by his next friend, ANNIE VANN;

and

MARCUS JONES, by his next friend, DIANE JONES,

Movants.

MARK ANTHONY NEVELS, ET AL.'S MOTION TO MODIFY LONG RANGE MAGNET SCHOOL PLAN

COME NOW Movants Mark Anthony Nevels, by his next friend,

Mark Todd Nevels; Anthony Green, by his next friend, Annie Vann;

and Marcus Jones, by his next friend, Diane Jones, by and through

their attorneys of record, and pursuant to the Equal Protection

Clause of the Fourteenth Amendment and 42 U.S.C. Sections 1981 &

1983 move this Court to modify its November 12, 1986 order

approving the KCMSD Long Range Magnet School Plan with respect

to the magnet school admissions racial quota policy currently in

effect, on the following grounds:

1. Movants are black public schoolchildren enrolled in

the School District of Kansas City, Missouri (hereinafter

"KCMSD" or "the district") who are presently, and in the future

may be, precluded from attending the KCMSD magnet school of

their choice as a result of the magnet school admissions racial

quota policy established by the district and approved by this

Court. Just prior to the beginning of school on September 5,

1989, these Movants -- who had appeared on waiting lists for

magnet schools they desired to attend, and for which space was

available -- were assigned to traditional schools which will

provide them an inferior education; these assignments are the

direct result of the district's magnet school racial quotas.

Movants bring this action through their parents and next friends.

2. Movants are members of the class of students certified

by this Court in its February 27, 1985 order, to-wit: "a class

consisting of all present and future elementary and secondary

education students in the Kansas City, Missouri School Dis-

trict." (Order of February 27, 1985 (Doc. #1060) at 2.)

3. On November 12, 1986, this Court entered its order

(Doc. #1237) approving the KCMSD Long Range Magnet School Plan

and authorizing implementation of the plan over a six-year

period. As part of the plan, certain racially-based admissions

guidelines were established to enhance "integration in the

KCMSD, consistent with fairness to magnet program applicants and

the imporrttaannncee

sov idein.g" choices of magnett programs to as

m stude ta cs as ppoopsrssiiblen ." y Long Magnet SScchool

Plan at 17.) The plan provided that "[t]hese guidelines shall

be reexamined by the District Court annually and revised to

further these goals. In particular, as nonminority nonpublic

and suburban students come into the system, the maximum percent-

ages of minority students should be reduced." (Id.)

4. The plan also established the following racial quota

admissions policy:

[2]d. All other timely applications will be accepted on a first-come, first-serve basis, within a specified application period. For each four nonminority students admitted, six minority students will be admitted until the program is filled or applications of nonminority or minority students run out.

i. If applications of nonminority students run out, minority students will continue to be accepted until the program is filled or until the minority percentage reaches a maximum level of 2% lower than the minority percentage in that school in the preceding school year. For example, at a magnet program opening in 1987-88, if applications of nonminority students run out before the program is filled, and the school was 86% minority in 1986-87, applications of minority students will continue to be accepted until the program reaches a maximum of 84% minority. If, in fact, the program is filled at a level of 76% minority, 74% would be the maximum for the following year, although the District should attempt each year to increase the 2% level of reduction.

ii. If applications of minority students run out, nonminority students will continue to be accepted until the program is filled or the nonminority percentage reaches 50%.

(Id. at 18.) These "racial composition guidelines .

. [are

to] be applied to each grade separately." (Id.)

5. Movants are suffering, and will continue to suffer,

irreparable injury as a direct result of the 60%-40% magnet

school racial quota admissions policy established by the KCMSD

and currently in place for the 1989-90 school year. This racial

3

quota has the effect of limiting the number of black schoolchildren who can attend a KCMSD magnet school of their choice, thus denying certain otherwise eligible black schoolchildren, including Movants, the same educational opportunity to participate in, and benefit from, the KCMSD magnet school program as that presently enjoyed by white schoolchildren. Although presumably the beneficiaries of the court-ordered desegregation remedy imposed, Movants and other similarly-situated black students have been denied the equal protection of the laws by the present quota policy.
6. Representatives of these Movants, and of a significant portion of the black community in Kansas City, have repeatedly approached class counsel (and the architect of the magnet school plan), Mr. Arthur A. Benson II, requesting his agreement to seek modification of the magnet school admissions quotas along lines set forth herein. Although class counsel has sought modification of certain other aspects of the magnet school plan, he has steadfastly refused to seek the relief now prayed for by these Movants. In fact, Mr. Benson has made public statements voicing his opposition to the relief sought by Movants and, further, stating unequivocally his unwillingness to listen to or represent the interests of the black community on this and related issues.
7. Class counsel has a conflict of interest in his continued representation of the interests of present and future white students being recruited for KCMSD magnet schools against
4

the interests of current and future black students, such as Movants, denied equal access to magnet schools as a result of these racial quotas.
8. Movants' constitutional rights and interests are being jeopardized by the magnet school admissions quotas in effect. These rights and interests clearly are divergent from those represented by class counsel. These rights and interests are not being, and will not be, adequately represented or protected by class counsel. Movants have the right to separate representation of their adverse interests.
9. In support of this motion, Movants respectfully submit the accompanying memorandum of facts and law.
WHEREFORE, Movants Mark Anthony Nevels, et al. pray this Court modify its prior order approving the KCMSD Long Range Magnet School Plan with respect to the magnet school admissions quotas and enter its order:
(a) authorizing Movants' separate representation; (b) modifying the Long Range Magnet School Plan so that
(i) the race-based admissions quotas are removed as mandatory guidelines and replaced as enrollment goals; (ii) regardless of the corresponding nonminority enrollment in KCMSD magnet schools or grade levels wherein a 60% minority admissions ceiling currently is in effect, minority students shall be granted access to admission to at least 60% of student positions
5

available in those schools or grade levels; and (iii) regardless of the corresponding nonminority enrollment in KCMSD magnet schools or grade levels wherein a 2% minority reduction quota currently is in effect, minority students shall be granted access to admission to at least the number of student positions available that will permit the 2% minority reduction to occur in those schools or grade levels; (c) for such other and further relief as the Court deems necessary and proper.
WRITTEN REQUEST FOR ARGUMENT AND HEARING Pursuant to Local Rule 13A, Movants Mark Anthony Nevels, et al. hereby request this Court schedule argument and an evidentiary hearing on their Motion to Modify Long Range Magnet School Plan at the Court's earliest convenience.
Respectfully submitted, PAYNE & ROQUE

By

i

Kit

Roque

23694)

417 E.,.13th treet

340/Interstate Building

Ka/sas/City, MO 64106-2901

(8k164 471-6515

ATTORNEYS FOR MOVANTS MARK ANTHONY NEVELS, ET AL.

CERTIFICATE OF SERVICE
'Me undersigned hereby certifies that trueand accurate
copy of the foregoing was served by first-class U.S. mail, postage prepaid, this 21 day of September, 1989 to:

6

Arthur A. Benson II Benson & McKay 1000 Walnut, Suite 1125 Kansas City, Missouri 64105
Theodore M. Shaw NAACP Legal Defense Fund 8th Floor 634 South Spring Street Los Angeles, California 90014
Allen R. Snyder Patricia A. Brannan Hogan & Hartson 555 Thirteenth Street, N.W. Washington, D.C. 20004
Shirley Keeler Blackwell, Sanders, Matheny, et al. Two Pershing Square 2300 Main Street Suite 1100 P. 0. Box 419777 Kansas City, Missouri 64141
Michael Gordon 204 W. Linwood Blvd. Kansas City, Missouri 64106
William L. Webster Attorney General Michael J. Fields Assistant Attorney General Broadway Building, 6th Floor P. O. Box 899 Jefferson City, Missouri 65102-0899
H. Bartow Farr III David R. Boyd Beth Heifetz Onek, Klein & Farr 2550 M Street, N.W. Suite 350 Washington, D.C. 20037

Att_ orney
illevel6,
______-----

'7 /

___

/ , I ./

\

1

r Movants Mark Anthony

\al.; I

7

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

o.c)cOo

I

t■

KALIMA JENKINS, et al., Plaintiffs,
v.

tr

)

.j.-.- 2-:-,..

-4 '"<

-,;$

)

4

)

No. 77-0420-CV-W-4 < ; 4 ■\.", '

STATE OF MISSOURI, et al.,

)

Defendants. )

KCMSD MOTION FOR APPROVAL OF
LONG-RANGE MAGNET SCHOOL PLAN

COMES NOW the School District of Kansas City, Missouri ("KCMSD"), and moves this Court for an Order approving the Long-Range Magnet School Plan (the "Plan"), which is filed herewith at Tab A to this Motion, along with the budget to fund the Plan, which is filed herewith at Tab B. This Court's Desegregation Monitoring Committee unanimously approved the Plan on August 7, 1986, and specifically found that the Plan: 1) will enhance desegregation; 2) is equitable; 3) has educational integrity; 4) is administratively feasible; and 5) is reasonable in cost. 1/

1/ At the August 7 Monitoring Committee hearing, the District's consultants suggested minor revisions in the Plan and a member of the Monitoring Committee proposed a clarification concerning the application of the admissions
[Footnote continued]
11

t-

1

■

The Plan builds on the magnet plan approved by the

Court for 1986-87 through the carefully coordinated

implementation of additional magnet schools over the next six

years. The Plan calls for every senior high school and middle

school 2/ in the District to become magnet schools. Each

magnet school will have one or more distinctive themes and will

also continue to provide the basic academic curriculum offered

in the District. The magnet themes selected are those that

were well received in the survey or focus group research

ordered by this Court, along with themes that have succeeded in

other cities. The specialty programs incorporated in the Plan

are designed to "attract non-minority enrollment as well as be

an integral part of district-wide improved student

achievement." June 16, 1986, Order at 16. Successfully

will implemented, the Plan

maximize the District's potential to

attract new students into the system -- from private or

suburban schools as well as from new families moving into the

1/ [Footnote continued]
standards to students moving to the area. These minor modifications were approved by the KCMSD Board on August 12, 1986, and are incorporated in the Plan at Tab A and separately listed at Tab C.
2/ The Plan assumes that the District will move from a junior high school to a middle school configuration by fall 1987. If the District decides to retain the junior high structure, the Plan can be modified accordingly.
- 2 -

metropolitan area and being drawn by the excitement that this Plan has the opportunity to generate.
The Plan is designed to provide program continuity through the grades by feeding elementary students from magnet locations around the District into secondary magnet programs [ ' that continue the magnet themes. The structure of this Plan provides both minority and non-minority students with strong programmatic reasons to leave their neighborhoods and go to middle schools and high schools that offer continued instruction in a focused subject matter area. The KCMSD offers this approach -- rather than just suggesting a few additional magnet schools -- principally because this Plan can avoid a perception that magnets constitute a few "elite" schools and that other schools are second-rate. The number of schools also permits a substantial percentage of the District's students -both non-minority and minority -- to become involved in magnet programs, which maximizes the drawing power and desegregative potential of magnet schools in the KCMSD, as well as the educational benefits to students.
In order to advance toward the objective of making "available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district," June 16, 1986 Order at 17, KCMSD moves this Court for an Order approving the attached Plan. In addition, the
- 3 -

District seeks an Order requiring the State of Missouri to fund the incremental cost of adding magnet components to KCMSD schools in order to make them fully attractive for desegregative purposes as magnet schools; the District will continue to fund the usual operating expenses of the schools. 3/ The budget at Tab B reflects line-by-line requirements for the added personnel, equipment, and other enhancements required to make these schools magnets. 4/ The budget covers the magnet components of the Plan during the first six-years of implementation, which ends in the 1991-92 school year.

will, 3/ The District also

of course, continue to bear its

share of the expense of other desegregation programs ordered by

the Court. 'The District believes that the funding to convert

these schools into magnet schools should be in addition to

other desegregation funding, including the effective schools

funding, because the other funding serves the specific programs

described in the Court's previous Orders, the need for which
will not be supplanted or eliminated by magnetization.

4/ The budget does not include funding that will be required for the Lincoln College Preparatory, Southwest Cluster Investigative Learning, and Swinney-Volker Applied Learning magnets beyond 1986-87. Funding for these magnets in future
years will be sought by separate motion.

The KCMSD moves the Court to order the following funding by the State of Missouri for the first three years of the Plan, i.e., 1986-87, 1987-88, and 1988-89: 5/

Elementary, middle, and high school programs:

1986-87

1987-88

1988-89.

$ 5,186,570

$10,609,415

$18,729,871

For magnet support to start and operate the magnet program, recruit and train personnel, manage the necessary transportation, evaluate magnet programs, recruit students and provide public information, and increase existing services such as budget and payroll to accommodate the magnet program:

1986-87

1987-88

1988-89

$ 3,129,702

$ 3,337,314

$ 3,675,903

For a Pilot Project for the Severely Handicapped, to improve participation of seriously handicapped students in the seventh, eighth, and ninth grades for participation in magnet school programs:

1986-87

1987-88

1988-89

0

0

$ 143,406

TOTAL for all programs:

1986-87

1987-88

$ 8,316,272

$13,946,729

1988-89 $22,549,180

5/ The District proposes that, beginning in 1987-88, it will submit to the Monitoring Committee and the Court each year a budget for the year two years hence, so that the District's experience in implementing these schools, along with factors that cannot be precisely projected at this point, such as inflation, can be reflected in the Court's Orders.
- 5 -

The KCMSD also moves this Court for an Order requiring

the State of Missouri to fund construction of the following new

facilities to accommodate the magnet school programs, and to

acquire sites for the first four buildings listed below, for

which sites are not already owned by the District: 6/

1) A "New West" twin theme elementary campus, with site, in the Switzer area, for Spanish and communications magnets;

2) A "New Northeast" elementary school, with site, in the Northeast high school area, for a Latin Grammar magnet school;

3

A "New Southeast campus" three-school/theme

elementary campus, with site, in the Chick/Mark

Twain area, for Gifted and Talented, Classical

Greek, and Computer magnets;

4

A "New Paseo" middle school in the Paseo area,

for a performing arts magnet; and

5) Construction of a "New Gladstone" elementary school on the old Gladstone School site owned by the District in the Northeast area, for Performing and Visual Arts and science/math magnets.

The KCMSD also moves the Court for an Order requiring

the State to fund the rehabilitation of a site such as the

Jewish Community Center for use as a performing arts middle

school in 1987-88, until the New Paseo Middle School is

constructed. The rehabilitated building would be used

6/ On August 7, the Monitoring Committee expressed a desire to r eview estimates of the cost of proposed new construction. The District will provide rough estimates by the time of the Court's hearing on this Motion.
- 6 -

thereafter to house students who must be temporarily relocated

due to capital facilities rehabilitation work on their schools.

These new magnet facilities proposed by the KCMSD are

required to ease the crowding in District facilities, which is

projected to become severe in the next several years, and to

permit sufficient student movement to accomplish desegregative

enhancements in the magnet school plan.

The KCMSD further moves this Court for an Order

requiring the State of Missouri to fund the following land

acquisitions, if appropriate sites can be located by the

District:

1) Expansion of the site at Pitcher Elementary School for a Classical Greek magnet;

2

Expansion of the site at Garfield Elementary

School for a Classical Greek magnet;

3

Expansion of the site at Northeast Middle School

for a Classical Greek magnet;

4

Expansion of the site at Central Senior High

School for a Classical Greek magnet; and

5

Acquisition of a site for demonstration and

practical skills application for the East Senior

High School Agribusiness and Environmental

Sciences Magnet.

The Classical Greek magnets require enlarged sites to

accommodate the athletic component of the program, which is a

feature designed to attract both non-minority and minority

students. The outdoor site for demonstration and practical

skills application for the Agribusiness and Environmental

Sciences Magnet will give students an opportunity to have

hands-on experience in agriculture and the outdoor environment,

despite the KCMSD's urban location.

Finally, the KCMSD moves this Court for an Order

requiring the State-of Missouri to fund the cost of

transportation required by the Plan. A budget for the actual

cost of transportation has not been established because the

cost cannot be predicted with accuracy until the District gains

experience in determining where the students for particular

will magnet schools

come from. The District proposes that the

Monitoring Committee review and approve the District's requests

for transportation cost reimbursement.

In support of this Motion, the KCMSD submits the

attached Memorandum in Support of the Board's Motion and the

8

Long-Range Magnet School Plan and Budget, filed herewith and incorporated herein by reference.
Respectfully submitted,

Dated: August /3_, 1986

Shirley and Keeler James Bo thwick
BLACKWELL, SANDERS, MATHENY, WEARY & LOMBARDI
Five Crown Center, Suite 600 2480 Pershing Road Kansas City, Missouri 64108 (816) 474-5700
laV4
avid S. Tatel Allen R. Snyder Patricia A. Brannan Kevin J. Lanigan
HOGAN & HARTSON 815 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 331-4500
Attorneys for the Kansas City, Missouri School District

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

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

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

MEMORANDUM IN SUPPORT OF KCMSD MOTION FOR APPROVAL OF LONG-RANGE MAGNET SCHOOL PLAN
Preliminary Statement
In its Order of June 16, 1986, this Court stated the
goal by which remedial components such as proposed magnet
schools will be judged:
The long term goal of this Court's remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district. In achieving this goal the
will victims of unconstitutional segregation
be restored to the position they would have occupied absent such conduct, while establishing an environment designed to maintain and attract non-minority enrollment.
June 16, 1986, Order at 17 (emphasis in original).
Magnet schools are a critical element of that goal
because the Court's remedy relies on voluntary student
transfers as the only additional means of reassignment to

alleviate the racial imbalance in the KCMSD schools. 1/ Any magnet school plan for KCMSD thus has a substantial load to bear; the District was nearly 74% minority in 1985-86, with 24 of its regular schools over 90% black. KCMSD submits that no magnet school plan for the District would be acceptable if it proposed merely to distribute the small number of non-minorities remaining in the KCMSD across a few more schools. Rather, successful magnet schools must draw back from private schools those who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs.
It is possible for a magnet school plan in the KCMSD to do much more than shuffle the small number of non-minorities remaining in the system. The State's own expert agreed at the hearing on the 1986-87 magnet school plan that many successful magnets around the country "are quick to boast that their proudest accomplishment is a capacity to attract youngsters from private schools. For instance, Bronx Science in New York City is quite proud to report to all comers that 40 percent of its incoming class is drawn from private schools." June 5,
1/ This Court's reliance on magnet schools to generate voluntary student transfers as a fundamental component of a desegregation remedy is fully supported by the decisions of numerous courts, in this circuit and elsewhere, see, e.g.,
Liddell v. Missouri, 731 F.2d 1294, 1311 (8th Cir.)
("Liddell VII"), cert. denied, 105 S.Ct. 82 (1984); see generally cases cited in Memorandum in Support of KCMSD Motion for Approval of 1986-87 Magnet Programs, at 7-13.

1986, Tr. at 364 (Doyle). The KCMSD magnet schools must be such a national success story. The KCMSD magnet schools must help to inspire the public financial and moral support for the school system that can grow out of enhanced desegregation and student achievement. It is only in this way that magnet schools can help "to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district." June 16, 1986 Order at 17.
The magnet school plan ordered by this Court will have to be comprehensive and far-reaching if it is to achieve these ambitious results. The KCMSD, through the substantial efforts of Dr. Daniel U. Levine of the School of Education of the University of Missouri, Kansas City, 2/ and Phale D. Hale of the Rochester, New York Public Schools, 3/ has developed the Long-Range Magnet School Plan filed herewith (the "Plan"). In
2/ Dr. Levine has studied and written extensively on magnet schools and other desegregation issues and has testified previously in this litigation as an expert on these subjects. 3/ Mr. Hale is the Supervising Director of Project Management and Grants for the City School District of Rochester. Mr. Hale has been with the Rochester district for 16 years and was responsible for developing and implementing its magnet school program. Mr. Hale has a B.A. from Howard University and an M.A. in Educational Administration from the State University of New York at Brockport.
- 3 -

the present status of this case in which mandatory participation by the suburban districts has been precluded, the Plan offers the District's best hope of contributing to desegregation by bringing non-minorities into the system.

I.

The Plan Was Developed Through the Careful

Deliberative Process Contemplated by the

Court's Orders.

In this Court's June 14, 1985, Order, the KCMSD was

required to undertake the process of planning magnet programs

in addition to then-existing programs at Lincoln Academy,

Swinney-Volker, and Southwest Cluster. June 14, 1985, Order at

23-24. Pursuant to the Court's Order, KCMSD conducted a

two-part market research study, through Market Information

Services. The Marketing Information Services Phase I study

("Phase I Study") was a quantitative, statistically valid,

study designed to assess the public's potential interest in the

magnet school concept and to test the drawing strength of

possible program themes throughout the Kansas City, Missouri,

metropolitan area. 4/ This research was undertaken through a

telephone survey conducted in December 1985. Phase I Study at

4. A total of 608 interviews of residents of KCMSD and the 11

suburban school districts was completed. Id. The respondent

4/ The Phase I Study was filed as Attachment B to KCMSD's Motion for Approval of 1986-87 Magnet School Programs, filed on May 9, 1986.

sample represented the school districts' current population profile by minority/non-minority status and by public/private school enrollment. Id. at 4-7.
Among non-minority parents, the magnet school themes which sparked interest among the greatest number of respondents were college preparatory, gifted, math, science and engineering, high-tech programs, Montessori at the elementary level, and a business management concentration at the secondary level. Id. at 1. The preferences of minority parents were similar. Id. at 2. It is noteworthy that the top priority among both minority and non-minority parents in selecting a child's school is a good, solid, basic academic curriculum. Id. at 10.
The Marketing Information Services Phase II study ("Phase II Study") consisted of 10 focus group sessions conducted in February 1986. 5/ The purposes of the focus groups were: 1) to explore, in an in-depth manner, non-minority residents' interest in magnet schools within KCMSD; 2) to investigate attitudes and circumstances which could affect the potential use of and enrollment in magnet schools; and 3) to obtain a reaction to and level of interest in specific possible magnet school themes. Phase II Study at
5/ The Phase II Study was filed as Attachment C to KCMSD's Motion for Approval of 1986-87 Magnet School Programs.
- 5 -

3. The focus groups consisted of parents of private and public school students in KCMSD and suburban areas. Id. at 6-7.
Participants in the focus groups exhibited a moderate level of interest in the development of magnets within KCMSD. Id. at 9. Participants, particularly patrons of KCMSD, emphasized the importance of improvement overall in current public schools. Id. at 10. Concern also was expressed that magnets could lead to the development of a "two-tiered" educational system, with magnets reserved for students with higher academic capabilities. Id.
Focus group participants generally indicated that they would be more likely to enroll a secondary level student than an elementary student in a magnet. The participants identified the location of magnet schools as an important issue because most participants wanted their children -- particularly elementary children -- to attend school close to home. Id. at 10. The participants were asked about particular magnet school themes, and commented favorably on elementary Academic Academy and secondary college preparatory, math, science and engineering programs. Id. at 11.
The drafters of the Plan considered the survey and focus group results and also received extensive public comment directly. As drafts of the Plan were developed, hundreds of copies were circulated through the public libraries. Community groups and individuals submitted written comments, and
- 6 -

expressed their views at public hearings on May 28, July 7, and

July 21, 1986, which were attended by Dr. Levine, Mr. Hale, and

members of the staff, Board, and administration. The experts

preparing the Plan also attended meetings of the Missouri Black

Leadership Association, the Education Task Force of the Black

Community Coalition, and met with small groups of parents and

citizens organized by the Learning Exchange. The experts met

with the President of the KCAFT and incorporated his comments

in the Plan. They also toured schools and met with District

principals.

Views of the public also have been conveyed through

School Board members. The full Board considered the Plan and

voted in favor of the proposed Plan and budget at public

meetings on July 22 and July 28, 1986. The views of the

plaintiffs have been conveyed through extensive participation

in the magnet school planning process by Arthur A. Benson II,

counsel for the plaintiffs, and George Frey, Assistant

Superintendent of the San Diego, California School District,

the plaintiffs' magnet school consultant. This careful

deliberative process thus offered extensive opportunity for the

will KCMSD to learn what

attract a diverse magnet school

population and enhance equal educational opportunities.

II.

The Plan Will Provide the Desegregative and

Educational Benefits of Magnet Schools Which Are

Called for by this Court's Orders.

The KCMSD designed this Plan to achieve the greatest

truly stable desegregation possible in a magnet school plan,

within the constraints of the KCMSD's substantial minority

population and the lack of mandatory or voluntary participation

by suburban school districts. The key to this design is

meaningful educational programs that can draw students to

schools with improved racial balance. The educational benefits

of the Plan are implicit in the substantive themes and

programs, offering opportunities, for example, for children to

become fluent in a second language, to increase writing and

communication skills, to learn about law and government, and to

acquire knowledge in general math and science skills as well as

the environment, engineering, and computer technology. The

KCMSD does not propose programs that are mere frills added on

to a flimsy academic foundation. Nor does it propose programs

intended to allow the District to reduce its current commitment

to these schools. The KCMSD proposes that it continue to bear

the ordinary operating expense of these schools, and to

implement the existing Court-ordered desegregation programs at

all of the magnet schools, with the financial responsibility

these programs impose on the District, as well as the State.

Such features as the reduced class sizes, all-day kindergarten,

and effective schools funding already ordered by the Court will

- 8 -

be critical to convey to the public that the basic KCMSD academic program is sound.
A complete understanding of the Plan, of course, can be gained only from the Plan itself; it is simply too comprehensive to attempt to summarize in its entirety in this memorandum. Discussed below are the key features of the Plan that the KCMSD views as carrying with them the greatest opportunity for desegregating the KCMSD through any magnet school plan. Examples from the Plan are discussed where useful for illustrative purposes.
A. Feeder patterns -- The Plan was designed to achieve the maximum potential desegregation, as well as substantial educational benefits, by offering meaningful programs for students through their school years. The programs can accommodate students entering at any level, but are designed in a series of feeder patterns so that students have continuity of instruction through their school years. 6/ The feeder patterns also are designed to draw students of mixed racial backgrounds, particularly for the higher grades. This is accomplished by scattering the programs at the elementary level around the District, which then feed into middle and high school programs that continue the magnet theme.
6/ The feeder patterns are illustrated in the charts following page 9 of the Plan.
- 9 -

One example of the feeder system created by the Plan is Paseo Senior High School. Paseo, which was 99.9% minority in the 1985-86 school year, will offer a Visual and Performing Arts magnet school program under the Plan. The principal "feeder school" for Paseo Senior High will be a new Paseo Middle School, also located in the predominately minority Paseo area. At the elementary level, however, visual and performing arts programs will be offered in schools in various areas of the District, including Phillips and Meservey in the central corridor area, Longfellow in Westport, and a New Gladstone in the predominantly non-minority Northeast area. Although attendance at the secondary level will not be limited to students who participated in the program in elementary school, students coming out of the elementary program will have a strong incentive to continue through middle school and high school and will also have first priority in admissions. Plan at 17. This technique is used throughout the Plan as an incentive for voluntary desegregation.
B. Themes -- The themes selected for magnet schools in the Plan took into account the results of the surveys and focus groups, so that the greatest potential desegregative attractiveness could be achieved. The chart on page 12 of this Memorandum illustrates the groups of themes proposed in the Plan. As the chart indicates, a heavy emphasis is placed on math and science, particularly at the secondary level;
- 10 -

high-tech programs are provided at all levels; and other specific programs identified in the survey and focus groups are incorporated in the Plan (e.g., Montessori, gifted, elementary academic academy [Latin Grammar and Classical Greek], and business management). The District's magnet school experts also have incorporated in the Plan themes that have proven highly successful in other cities. 7/

7/ For example, Agribusiness has been a highly successful

theme in Philadelphia and Visual and Performing Arts has been

extremely attractive in cities throughout the country,

including St. Louis, Milwaukee, and Rochester. All of the

themes selected have a proven basis of experience in other

will cities, on which the KCMSD magnets

build in order to

maximize their opportunity to succeed. See, e.g., R. Blank,

R. Dentler, D. Baltzell & K. Chabotar, Survey of Magnet

Schools: Analyzing a Model for Quality Integrated Education

28-30 (1983).

LONG-RANGE MAGNET SCHOOL PLAN THEMES

Ph y sical Science

Social Science & Humanities

Elementar ySouthwest Cluster

Theft5

Swinney-Volker Weeks

Three Trails

Wheatley

New Gladstone

Richardson

N. Rock Creek/ Korte New Southeast
Campus Knotts

--Science/Math --Science/Math --Science/Math --Science/Math --Science/Math --Science/Math --Computers
--Environmental Science
--Computers --Environmental Science

At tucks Troost New West
Phillips New Gladstone Longfellow Meservey Longan Franklin Moore (K-3) Mt. Washington
(K-3) Melcher (4-5)
Fairmount (K-3)
Sugar Creek (K-3)

--Communications Writing --Communications Academy --Communications & Writing
Spanish --Performing & Visual Arts --Performing & Visual Arts --Performing & Visual Arts --Performing & Visual Arts --French --Spanish & French --Spanish --German
-German French Spanish
-Spanish
-French

Other
New Southeast Campus
New N.E. Pinkerton Faxon Garfield Pitcher

--Classical Greek Gifted & Talented
--Latin Grammar --Latin Grammar --Montessori --Classical Greek --Classical Greek

Middle Themes

Lincoln North Bingham Central Southeast Lincoln South Nowlin

--College Prep --Science --Computers --Science & Technology --Science & Math --Environmental Science

Lincoln North Westport New Paseo Central

--College Prep --Communications --Preforming & Visual Arts --Language

Lincoln North Northeast King

--College Prep -Classical Greek --Latin Middle

Senior Themes

Lincoln North Southwest East
Southeast Van Horn
Central

--College Prep --Science/Math --Environmental Science
& Agribusiness --Health Professions --Engineering &
Technology --Computers

Lincoln North Westport Paseo Southeast Northeast

--College Prep --Communications --Performing & Visual Arts --International Studies --Law & Public Service/
Military

Lincoln North Westport Central Tech Center

--College Prep --Business --Classical Greek --Technical &
Vocational

In order to maximize the desegrative potential of the Plan, all of the senior high and middle schools will have magnet themes along with the basic District curriculum for those levels. In addition, the themes which the District's experts believe will have the strongest drawing power have been placed in the predominantly minority secondary schools in the central corridor.
C. Attendance areas and admission standards -Attendance areas will be eliminated for high schools and middle schools; the students for each school will be drawn from District-wide applications for admission. This approach is designed to provide a better opportunity for enhancing desegregation at these levels than the alternative of magnetizing only some selected schools. 8/
The admissions guidelines for the magnets are structured to promote equity in addition to desegregation. The Plan permits meaningful choices for minorities as well as for non-minorities. The admissions guidelines for 1987-88 provide that students will be accepted on a first come-first serve
8/ For example, if only half of the middle and high schools were made magnets, with racial guidelines of 50-50 or 60-40 minority to non-minority, the effect could well be merely to transfer the non-minority students already enrolled in the District from their present schools to the limited number of magnet schools, with the remaining schools becoming nearly all-minority.
- 13 -

basis at a 60/40 minority/non-minority ratio. 9/ If

applications of students in either group are received in

numbers insufficient to fill the program, specified deviations

will be allowed from the 60/40 ratio, but magnets will not be

less than 50% minority. Plan guidelines will enable a large

number of students -- minority and non-minority alike -- to get

will their choices of magnet schools. This approach

enhance

positive feelings about the District and will be an educational

benefit to students who wish to focus on a particular field of

emphasis.

Another sense in which the Plan strives for equity is

by avoiding admission requirements that would permit only

high-achieving students to take advantage of the programs. The

admission criteria will not exclude any interested student,

within the specified guidelines concerning race. The only

exceptions involve the college prep secondary magnet at

Lincoln, the Montessori magnet which may interview for

individual suitability, and the elementary gifted and talented

magnet school.

Consistent with the general admissions policy that

avoids criteria based on test scores or achievement, the

will 9/ The Plan provides that the admissions guidelines

be

adjusted each year as the District gains experience with the

Plan. Plan at 17.

- 14 -

magnets will provide programs and classes at all levels of skill and achievement in the magnet emphasis at each school. Students also may choose to participate in a particular magnet program to a greater or lesser extent. Opportunities will be available for intensive participation in themes such as science/math, foreign language, or performing arts, but students may also choose to restrict their participation to a limited number of enrichment activities beyond the basic curriculum and some infusion of the magnet theme into regular coursework.
D. Equity and fairness toward all District students -- The Plan is designed to avoid a danger often inherent in a system in which only a few schools are made magnets, i.e., the danger that the magnet schools will be perceived as "elite" schools that are "better" than the regular District schools. At the 1986-87 magnet school hearing, the State's own expert advocated a system-wide program of magnets as a way to avoid a "two-tier" system. H. Bartow Farr, III, counsel for the State, asked one of the State's magnet school experts, Denis Doyle, how to avoid the creation of a two-tier system with the "haves" happy in their magnet schools and the "have-nots" -- the bulk of the students -- dissatisfied in their regular schools. Mr. Doyle's testimony on this point is consistent with the magnet structure proposed in the Plan:
- 15 -

[T]he most compelling idea intellectually, of course, would be to convert an entire school system to magnet schools where budgets would be derived on the basis of enrollment, monies would be spent equally and fairly at schools and the school community would design programs they found satisfying, both intellectually and for other bases.
In that environment no one would be disadvantaged, each school and each student within each school would be treated fairly and evenly and schools would be encouraged to develop their own academic personalities, as it were, and by that device they would be treated in an even-handed and fair fashion, with, I would suggest, the opportunity to develop academic or educational personalities, that if they worked would attract students; if they didn't, they would lose students.
June 5, 1986, Tr. at 381-82 (Doyle). 10/
A critical goal related to the avoidance of a two-tier
system is the achievement of equity in a magnet school
program. The KCMSD believes that non-minority children should

10/ The KCMSD Plan leaves approximately one-half of the

elementary schools as non-magnet comprehensive schools in order

to provide a choice that is attractive to many parents. The

full system of magnets suggested by Mr. Doyle is not proposed

at the elementary level because parents expressed concern

during the consideration of the Plan that not everyone wants a

magnet school thematic focus for their children in the early

grades. The District does not believe that these "regular"

will elementary schools

be on any sort of a "second tier,"

will vis-a-vis the magnets, because they

have precisely the

same complement of basic comprehensive educational programs

provided through the District's efforts and the Court-ordered

desegregation program as will the magnets. The distinction the

magnets will feature will be focused themes, and not any

different quality of basic education.

- 16 -

not be given educational opportunities at the expense of

minority students. Elementary magnets are located in areas

convenient for minority as well as non-minority students. This

may result in some of these elementary magnets remaining

substantially non-minority, at least in the near future. These

schools are an essential part of the Plan because substantial

magnet opportunities must be provided for minority students in

the elementary grades, even if these magnet schools do not have

substantial non-minority enrollment, if minority students are

to be well prepared for the programs in the fully magnetized --

and more desegregated -- middle and high schools.

The Plan also is structured to avoid, whenever

possible, involuntary dislocation of students when a school

becomes a magnet. This is achieved by phasing in admissions of

new magnet students on a grade-by-grade basis. For example,

when a new senior high school magnet program begins, incoming

will ninth graders

be drawn from throughout the District, and

the suburban districts from which applications have been

received, in accordance with the racial guidelines and with

priority for students continuing in a program. See Plan at

will 17-20. Tenth, eleventh, and twelfth graders

be permitted

to remain in the school, although they may choose to transfer

to another school in accordance with the Plan's admissions

policies. 11/ Admissions will continue in this manner until

the fourth year of the program, when the entire student body of

the senior high magnet will have been admitted to the program.

The equitable implementation of a magnet school plan

must provide for the fullest participation possible by troubled

and handicapped children. The District proposes a transition

program in each high school and middle school for students with

serious social and academic problems. The transition program

will be integrated into the general theme of each school and
will provide students with special services with an emphasis on

the remediation necessary to bring the students up to a level

which will permit them to enter the regular program.

The District also proposes a pilot transition program

for seventh, eighth, and ninth grade students who are seriously

will handicapped. The goal of the program

be to improve their

participation in magnet schools and programs. If successful,

the pilot program should be extended to additional handicapped

students.

E. Mandatory backup -- Finally, the KCMSD

consistently has maintained that a mandatory back-up is

11/ The two exceptions to this phasing in of admissions are in

elementary schools where Montessori and Latin Grammar programs

will be established, because those programs require a student

body throughout each school that is committed to and involved

will in the program. Students displaced from those schools

be

given priority for admission to other magnets. Plan at 17.

- 18 -

important if a magnet school plan is to achieve a desegregative impact. Tr. 24,108-09 (Orfield). The District proposes that the existing Plan 6(c) continue, in effect, as a mandatory back-up. As the long-term magnet plan is phased in, the District expects to request the phasing out of Plan 6(c) transportation at the middle and senior high levels, at least to the extent the same level of desegregation is accomplished through magnet schools. The District also will examine carefully Plan 6(c) transportation at the elementary level as the magnet schools are implemented, and expects to recommend phasing out Plan 6(c) transportation to the extent that voluntary transfers in the magnet program are achieving at least the same level of desegregation.
The Cost of the Proposed Long-Range Magnet School Plan Is Reasonable and Necessary to Achieve the Plan's Objectives. The programs proposed in the Plan are not cheap, and with good reason -- genuine desegregation in KCMSD through a magnet school plan will never be achieved at a cut-rate. Neither, however, can the program fairly be characterized as unreasonably expensive. A. The Program Budgets are Prudently Designed
to Avoid Excessive Expenditures Consistent with the Court's June 16 Order, the Plan does not contemplate general overall class size reductions for
- 19 -

the magnet schools. 12/ Of course, additional "resource" teachers are necessary, and are therefore provided in the Plan, in order to provide the thematic program needs that the present school staff does not deliver. Substantial funding also is necessary for resources such as equipment and supplies to support the magnet programs that are inadequate or even nonexistent in the KCMSD. As a general rule, the programs have been designed and budgeted according to the principle, which the KCMSD understands to be the underlying intent of the funding allocation made by the Court in its June 16 Order, that the KCMSD should continue its existing commitment to and support for its own schools, with the State to fund the additional cost of magnetizing the school.
As the Plan's budget reflects, the program budgets intentionally have been designed to confer significant decision-making authority as to specific expenditures upon the District's administration, the planning task forces, and the individual schools where the programs will be implemented. This is particularly true for equipment and other non-personnel budget categories. Such "front-line" discretion is critical if
12/ The KCMSD continues to believe, however, that class size reductions on the order of those contemplated in its proposed 1986-87 Magnet School Plan, would provide additional desegregative attractiveness. See Memorandum in Support of KCMSD Motion for 1986-87 Magnet Programs, at 20-22.
- 20 -

the commitment and enthusiasm of the school's staffs and
parents are to be sustained -- and indeed, if the best
expenditure decisions are to be made. This Court has
recognized the need for "bottom up" input in the District's
spending decisions for individual schools, so that those
decisions are "in the hands of those individuals with the
knowledge, expertise and information necessary to make the best
judgments." June 14, 1985, Order at 22. 13/ The District and
school-based planning task forces that are proposed for the
pre-implementation planning school year will play a central
role in determining precise expenditures.
Adhering to these principles, the overall budgets
proposed by the KCMSD to fund the Plan are quite reasonable,
13/ The State's expert, Mr. Doyle, elaborated on this point in the hearing held in June:
One thing we have learned from 20 years of federal experimentation, I think beyond a shadow of a doubt, is that reform cannot be imposed from the top down, trickle down reform doesn't work. Reform has to grow organically from the bottom. It can be watered and fertilized, as it were, with seed money from Washington - and from the State, it can be assisted, can be helped, but in the final analysis, educational reform has to emerge from the institutions which are themselves to be reformed. The teachers, the principals, the community, the parents, the kids have to have some sense of ownership, some sense of participation.
June 5, 1986, Tr. at 370-71.
- 21 -

and the Monitoring Committee has so found. As Mr. Doyle testified, the cost of a magnet program varies according to the type of theme. Vocational schools are the most expensive, humanities tend to be the least expensive, and in the middle lie such schools as math/science magnets and magnets with a computer emphasis. June 5, 1986, Tr. at 373 (Doyle). The estimated recurring per-pupil "add-on" cost of the KCMSD magnets proposed in the Plan bears out Mr. Doyle's thesis, as the chart below, reflecting program costs by the groupings of themes shown on page 12, supra, demonstrates: 14/

Elementary Middle

Physical Science $ 917 $1,428

Social Science & Humanities
$ 685
$1,079

Other $ 848 15/ $1,094

14/ These estimates, which do not include the existing magnet

programs at Swinney-Volker, Southwest Cluster, and Lincoln

College Preparatory, are based on the full first year of

implementation costs of the programs, including apportioned

planning task force expenses at the elementary and middle

school levels, and are calculated on the basis of full facility

utilization. Many non-recurring expenditures for equipment and

will other purchases

be made in the first year of

implementation for all these programs, and are included in

these per-pupil estimates. Thus, the per-pupil add-on cost

estimates shown should decline in subsequent years.

15/ The Montessori magnet program at Faxon is the most expensive of the elementary programs, consistent with experience in other cities, with estimated per-pupil cost of $1,191. The estimated per-pupil cost of the remaining "other" elementary magnet programs is $778.

- 22 -

Senior High

$1,263

$1,177

$1,686+ 16/

B. The Magnet Support Personnel and Programs Proposed in the Plan Are Essential to the Successful Implementation of the Plan

The Plan is an ambitious One. It proposes the

establishment of an extensive network of magnet schools with a

wide variety of themes, requiring careful and systematic

implementation. To implement this program successfully, the

District must have adequate support by a professional magnet

will school staff. There

have to be a great deal of

coordination between administrative departments; coordination

of educational design with facility development to make

possible the achievement of the greatest educational benefits;

monitoring of construction schedules; development and

clarification of staffing, admissions procedures and

transportation logistics; monitoring of implementation

including reviews of changes and modifications; development of

recruitment guidelines; development of public information

materials; counseling of students and parents; and review and

administration of budgets. The KCMSD simply is not capable,

16/ As Mr. Doyle's testimony indicated, the proposed Advanced Vocational and Technical Studies magnet is the most expensive of all the programs -- again, consistent with experience in other cities -- with an estimated per pupil cost of $2,128. The estimated per-pupil cost of the remaining "other" senior high magnet programs is $1,292.
- 23 -

with existing support staff, of implementing a program of this magnitude. Accordingly, discussed below are several of the magnet support functions and positions that are essential to the successful implementation of the Plan. The full scope and staffing of the support structure is detailed in the Plan and budget.
1. Associate Superintendent -- The key position in the magnet school support chain is that of program administrator, proposed at the associate superintendent level. 17/ The person holding the position must have full authority to plan, organize, and implement magnet school programs, including coordination of instructional program development, and must supervise expenditure of all funds allocated to support the magnet school programs. The Plan also contemplates that the Associate Superintendent will have involvement in the evaluation of principals of magnet schools, the selection of administrative and other personnel in magnet schools, and review and creation of policies and procedures that may impact magnet schools and programs.
17/ The KCMSD should be'left with the discretion to determine how to integrate the existing Magnet School Office and Desegregation Monitoring Office with the central support structure proposed in the Plan. Once integrated, any unnecessary duplications will be eliminated.
- 24 -

Four new directors should be assigned to the Associate Superintendent: Director, Secondary Magnets; Director, Middle School Magnets; Director, Elementary School Magnets; and Director of Recruitment and Public Information. The Directors of Secondary, Middle School, and Elementary magnet programs will be responsible for the development, planning and implementation of magnet schools at the appropriate levels. 18/ The Director of Recruitment and Public Information will be responsible for the recruitment and placement of students in the magnet school program, and will also have the responsibility of implementing the program for the marketing of magnet schools. In the final analysis, the success of even the best magnet school plan must depend on the efforts of the school district to market the schools and recruit the students. It is critical that this department have sufficient staff to ensure that students and parents are able to secure personal advice regarding available choices of educational programs.

18/ The existing Associate Superintendents for elementary and

secondary education will remain responsible for the "regular"

curriculum and instruction in the magnet schools. The Middle

School Magnet Director position may become unnecessary when the

District implements the transition to middle schools and

will decides whether they

be administered under the elementary

or secondary program.

- 25 -

2. Instructional Specialists -- Instructional specialists will be assigned to the magnet school office in the major instructional areas to be covered by the magnet schools, and will chair all District task forces in their respective subject. They will ensure continuity of programs across grade levels and adherence to District and State standards and procedures for educational quality. After a school is opened, the specialists will work with building-based curriculum coordinators to develop the program revisions. They also will provide in-service training and on-site assistance to teachers and administrators.
3. Grant Specialist -- There are numerous potential funding sources for magnet school programs. These include the recently passed Federal Magnet School Assistance Act (MSAA), other government research or development programs, foundations, and corporations. The employment of a grants specialist should quickly pay for the initial expense of establishing the office, and could also secure additional funding that would reduce the cost of this Plan to parties in this action.
4. Ombudsman -- This Plan requires thousands of students to make choices each year. No matter how well the system is designed, there will be questions and concerns on the part of parents and students. The magnet school office must have an ombudsman to deal with parent and student complaints. The ombudsman will have a publicized direct phone line and be
- 26 -

available at times convenient to the public. The ombudsman

will be responsible for reviewing and resolving complaints,

monitoring the implementation of procedures, rumor control,

early warning of emerging problems, and representing parent and

student interests in policy formulation by the office.

5. Personnel Office -- In order to successfully

implement the Plan, the District must develop and sustain a

long-range personnel development, recruitment, and utilization

plan because a substantial number of specialized and highly

will trained professionals

be required to deliver the

programs. The District must implement a development program

including in-service training providing stipends to the

participants, and the provision of additional educational

stipends to enable KCMSD employees to advance their education,

professional development, and magnet school qualifications.

These steps must be taken for teachers, principals, and other

staff. In addition, the KCMSD must be able to recruit top

flight principals and teachers on a nationwide basis to fill

those needs that cannot be met locally.

6. Transportation -- The Plan will require extensive

transportation planning to ensure that students get to the

school of their choice in a timely and efficient manner. At

least one transportation officer and appropriate technical and

staff support must be added to the transportation office in

order to accomplish this critical objective.

- 27 -

7. Evaluation -- Evaluation of magnet schools is an

especially important aspect of this plan because it can provide

information to decision makers at the central level as well as

to school staff, parents, the Monitoring Committee and the

Court regarding the effectiveness of the programs. Evaluation

can serve as a tool for accountability as well as to identify

program strengths and weaknesses so that revisions and

modifications can be made on an ongoing basis to improve

program effectiveness. Much of the evaluation process can be

conducted by evaluator specialists within the District, but it

is recommended that the District also hire outside evaluation

will consultants when needed. These consultants

be coordinated

by a staff evaluator assigned to magnet school studies by the

evaluation office.

8. Other Central Support -- The Plan also provides

for additional budget, payroll, and procurement personnel

needed for the magnet program to augment existing District

support in these areas.

C. The Plan's Success Requires Extensive Facilities Improvements and New Construction
The KCMSD's Motion for Approval of 1986-87 Magnet Programs, filed May 9, 1986, set forth the critical needs in the 1986-87 magnet schools for extensive capital improvements in order to allow them to house truly attractive magnet school programs:

- 28 -

A common characteristic of many successful magnet schools is a physically attractive facility. The physical appearance of the building influences the decision of parents whether to enroll their child. Levine Declaration, If 12; Tr. 22,211 (Levine). The more difficult it is to attract students to a school because of location or other factors, the more attractive the physical, appearance of the school plant and the newer the equipment should be. Rossell, What Is Attractive About Magnet Schools?, 20 Urb. Educ. at 15. Extensive physical rehabilitation to the KCMSD magnet schools, and improvement of their buildings and grounds, is necessary to create a climate conducive to teaching and learning and to make the KCMSD magnet schools physically as attractive as many suburban and private schools. See Levine & Eubanks, Attracting Nonminority Students to Magnet Schools in Minority Neighborhoods, 19 Integrated Educ. at 57. 12/ In addition, facilities reconfigurations and additions are necessary in order to accommodate special magnet program offerings and resources. Tr. 24,200 (Uchitelle).
Id. at 26-27.
In selecting sites for particular magnet programs, the
drafters of the Plan adhered, where possible, to principles
that will hold down the cost of necessary capital improvements
in order to make the chosen sites suitable to house the magnet
programs. First, the elementary schools that generally require
more modest reconfiguration and rehabilitation work were chosen
to house the elementary magnet programs, thus decreasing the
cost of improvements necessary to make the facilities suitable

magnet schools. 19/ Second, those secondary programs that inherently require the greatest reconfiguration or additions, such as performing and visual arts, were generally located in facilities that also require extensive capital rehabilitation, thus taking advantage of any savings to be gained for the "economies of scale" that result from doing necessary extensive reconfigurations while necessary extensive renovations also are being done.
Wholly aside from capital improvements, reconfigurations, and additions to existing facilities, the KCMSD has a critical need for the construction of new facilities. Such new facilities are necessary to ease the crowding in District facilities, projected to become severe in the next several years as the Court's class size reductions are implemented and enrollment increases. Additional space also is necessary to permit sufficient student movement to accomplish
segregative enhancements in the Plan. Where new real de
property acquisitions are necessary to construct new facilities or expand existing facilities to accommodate necessary programs, such property must be acquired.
19/ As a general rule, the elementary magnet programs require less program-based reconfiguration than do the secondary programs.
- 30 -

In order to maximize the desegregative potential of

the Plan, the following new facilities are required in order to

accommodate magnet programs, with the first four facilities

listed also requiring the acquisition of new building sites:

1) A "New West" twin theme elementary campus, with site, in the Switzer area, for Spanish and communications magnets;

2) A "New Northeast" elementary school, with site, in the Northeast high school area, for a Latin Grammar magnet school;

3) A "New Southeast campus" three-school/theme elementary campus, with site, in the Chick/Mark Twain area, for Gifted and Talented, Classical Greek, and Computer magnets;

4

A "New Paseo" middle school in the Paseo area,

for a performing arts magnet; and

5) Construction of a "New Gladstone" elementary school on the old Gladstone School site owned by the District in the Northeast area, for Performing and Visual Arts and science/math magnets.

In addition, the acquisition and rehabilitation of a

facility such as the Jewish Community Center is needed for use

as a performing arts middle school in 1987-88, until the New

Paseo Middle School is constructed. The rehabilitiated

building would be used thereafter to house students who must be

temporarily relocated due to capital facilities rehabilitation

work on their schools.

Finally, additional property acquisitions also are

necessary to maximize the success of magnet programs that will

- 31 -

be implemented at the following existing District facilities, if appropriate sites can be located:
1) Expansion of the site at Pitcher Elementary School for a Classical Greek magnet;
2) Expansion of a site at Garfield Elementary School for a Classical Greek magnet;
3) Expansion of the site at Northeast Middle School for a Classical Greek magnet;
4) Expansion of the site at Central Senior High School for a Classical Greek magnet; and
5) Acquisition of a site for demonstration and practical skills application for the East Senior High School Agribusiness and Environmental Sciences Magnet.
The Classical Greek magnets require enlarged sites to accommodate the athletic component of the program, which is a feature designed to attract both non-minority and minority students. The outdoor site for demonstration and practical skills application for the Agribusiness and Environmental Sciences Magnet will give students an opportunity to have hands-on experience in agriculture and the outdoor environment, despite the KCMSD's urban location.
The KCMSD proposes that the State of Missouri pay for these capital expenditures, consistent with the liability of the State for segregation in the KCMSD, and consistent with this Court's previous allocation of the burden of magnet-related capital expenditures. See June 16, 1986, Order at 14-16. By the time of the hearing on this Motion, the
- 32 -

District will provide rough estimates for the new construction required by the Plan and any other capital facilities work that requires approval soon for the successful implementation of the Plan. The other capital expenditures necessary for the success of the Plan will be presented within the framework of the District's long-range capital improvements plan, due to be filed with the Monitoring Committee on or before January 5, 1987.
D. The Plan's Success Will Result in Increased Transportation Costs
As a rule, the State's pupil transportation reimbursement formula reduces the percentage of reimbursement to school districts as the average distance traveled by students increases. Thus, just as the KCMSD has been punished financially by the State for its Plan 6(c) transportation --
will regarded by the State as "inefficient" -- the KCMSD also
be punished by the State for the success of the Plan, with its
expected increased cross-district voluntary transportation. A
budget for the actual cost of transportation has not been established because the cost cannot be predicted with accuracy until the District gains experience in determining from where the students for particular magnet schools will come. The District proposes that the Monitoring Committee review and approve the District's requests for full State transportation cost reimbursement.
- 33 -

IV. The Costs Required to Convert KCMSD Schools to Magnets Should Be Fully Funded by the State of Missouri.
This Court previously set forth the basis for the
State's responsibility in this action:
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.
June 14, 1985, Order at 3. On this basis, the State should be
ordered to fund the full actual cost of operating magnet
schools in the District -- the only part of the Court's remedy
that can have a directly desegregative effect.
The Court's June 16 Order, of course, did not grant
KCMSD all the funding it sought, but we believe it did
establish two principles: that the State should pay the full
costs for capital improvements to the magnet schools, and the
State should pay the full cost of the magnet enhancements to
the schools, beyond the cost of operating the schools as
"regular" schools. See June 16, 1986, Order at 14-19. It is
these two principles that the KCMSD urges the Court to apply to
this Plan, by requiring the State to bear the true costs of the
magnet schools "needed to dismantle the effects of the
State-imposed dual school system, the effects of which persist

to this day in the KCMSD." Memorandum in Support of KCMSD Motion for Approval of 1986-87 Magnet Programs, at 36.
Conclusion For the reasons stated, the School District of Kansas City, Missouri, respectfully requests that the Court enter an

Order approving its Motion for Approval of Long-Range Magnet School Plan, and ordering the State to provide the funding requested in that Motion.
Respectfully submitted,

Dated: August l', 1986

James Bo. thwick
BLACKWELL, SANDERS, MATHENY, WEARY & LOMBARDI
Five Crown Center, Suite 600 2480 Pershing Road Kansas City, Missouri 64108 (816) 474-5700
QL `(/pc
David S. Tatel Allen R. Snyder Patricia A. Brannan Kevin J. Lanigan
HOGAN & HARTSON 815 Connecticut Avenue, N.W. Washington, D.C. 20006 (202) 331-4500
Attorneys for the Kansas City, Missouri School District

CERTIFICATE OF SERVICE

I hereby certify that I caused copies of the foregoing KCMSD Motion for Approval of Long-Range Magnet School Plan and Memorandum in Support thereof, with attachments, to be delivered, this /-5 -- day of August, 1986, to the following persons:

By Hand: By Federal Express:

H. Bartow Farr, III Onek Klein and Farr 2550 M Street, N.W., Suite 350 Washington, D.C. 20037,
Attorneys for the State of Missouri
Arthur Benson, II Benson & McKay 1430 Commerce Tower 911 Main Street Kansas City, Missouri 64105 and
Theodore M. Shaw NAACP Legal Defense Fund, Inc. 99 Hudson Street, 16th Floor New York, New York 10013
Attorneys for Plaintiffs
Michael T. Fields Assistant Attorney General Supreme Court Building Jefferson City, Missouri 65102
Attorneys for the State of Missouri
Michael D. Gordon Jolley, Walsh & Gordon 1300 Bank of Kansas City Building 1125 Grand Avenue Kansas City, Missouri 64106
Attorneys for Intervenor

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERJT DIVISION

KALIMA JENKINS, et al.,

)

Plaintiffs,

v.

No. 77-0420-CV-W-4

STATE OF MISSOURI, et al.,

)

Defendants.

)

INTRADISTRICT PLAN SUBMITTED BY
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI IN RESPONSE TO
COURT ORDER OF JANUARY 25, 1985

TABLE OF CONTENTS

I.

OVERVIEW

1

II.

STUDENT AND FACULTY DESEGREGATION

2

A. Student Assignments

2

B. Desegregation Through Voluntary

Enrollments

5

1. Voluntary Majority-to-Minority

Transfers

6

2. Magnet Schools and Programs

7

C. Faculty Assignments

10

III.

EDUCATIONAL COMPONENT FOR REMEDIATION AND FOR

ATTRACTING AND HOLDING INTEGRATED ENROLLMENTS

11

A. AAA Classification

11

B. Reduction of Class Size and Student-Teacher

Ratios

13

C. Early Childhood Education

17

1. Pre-Kindergarten Screening and

Programming

17

2. Extended Day Kindergarten

18

D. Elementary Schools

19

1. Effective Schools

19

2. Elementary Counselors and Home-

School Coordinators

21

3. After-School Programs

22

4. Early Language Development

22

5. Transition Rooms

23

E. Secondary Schools

24

1. Expansion of Demonstration Projects

25

2. Pre-Collegiate Curriculum

25

3. Alternative Secondary School Units and

Arrangements

27

F. Occupational and Career Education

29

G. Co-curricular Activities

30

H. Computer Technology

31

I. Summer Learning Programs

34

J. Special Education

35

K. Staff Development

36

1. Staff Development Cadres

36

2. Special Training for Administrators

36

3. Staff Development Specialists and

Stipends

38

L. Data Processing

38

M. Magnet School Programs

39

IV.

FACILITIES REHABILITATION

45

V.

PARENT AND COMMUNITY INVOLVEMENT

50

VI.

PUBLIC INFORMATION

52

VII.

PLAN ADMINISTRATION

53

VIII.

MONITORING OFFICE

54

IX.

HOUSING DESEGREGATION

56

X.

BUDGET

70

APPENDIX

A. 1977 Student Reassignments Pursuant

to Plan 6C

A-1

I. OVERVIEW This Intradistrict Desegregation Plan, submitted in response to the Court's Order dated January 25, 1985, offers the KCMSD's recommendations for the most effective and workable remedy which could be achieved solely within the existing KCMSD boundaries. The plan calls for retention of the student assignment patterns, faculty assignment guidelines, and student transfer policies contained in the 1977 KCMSD desegregation plan accepted by the United States Office for Civil Rights, with an added provision that all schools will achieve a minimum of 30% minority enrollment in grades 1-12. Because the remedial plan is limited to the boundaries of the KCMSD, and because little meaningful desegregation would result from extensive student reassignment within these limits, the primary desegregative focus of the plan is on systemic educational improvements for students who will remain in racial isolation. It also includes a voluntary majority-to-minority transfer provision, some magnet schools and special programs designed to attract integrated enrollment on a voluntary basis, and facilities improvements. The plan establishes a monitoring commission to oversee implementation efforts, and contains a component calling for efforts by the State to encourage housing desegregation as a means of obtaining integrated school enrollments.

X.

BUDGET

The KCMSD has been financially supporting intradistrict

desegregation efforts from its operating funds from 1977-78 to

the present. These costs include the initial expenses involved

in developing Plan 6C, additional transportation costs brought

about through the 6C reassignments, administrative costs in

implementing and monitoring faculty desegregation, expense of

the Lincoln Academy magnet, some limited in-service staff

development, added public information expenses, the limited

extended day kindergarten program, some added expenditures for

special elementary programs and costs of a community and parent

involvement program. The expanded intradistrict remedial

efforts outlined in this plan would require additional expendi-

tures including transportation for voluntary transfers, for

planning and operating magnets, for facilities and educational

program improvements, for expanding staff development, public

information and parent involvement efforts, and for administer-

ing and monitoring of the remedial effort.

The KCMSD shall continue to fund the desegregation activi-

ties currently in o p eration under 6C, and shall pay $10,000,000

toward facilities improvements. The State shall fund all other

costs of the plan.

While exact projections are difficult to make before plan-

ning details are complete, the following is an estimate of

first year costs of implementing the intradistrict activities

outlined herein:

-70-

Estimated Cost*

Program

1. $ 3,741,000

AAA Classification -- Personnel

2.

950,000

AAA Classification -- Library and Media

Improvements

3.

4,031,000

Reduced class size in elementary schools

4.

5,746,000

Reduced class size in secondary schools

5.

1,642,000 Early childhood education programs;

early language development program;

screening for early learning problems

6.

1,731,000

Full day kindergarten programs

7.

4,100,000

Effective Schools Projects

8.

2,194,000

Additional Elementary Counselors and

Home School Coordinators

9.

100,000

After school programs

10.

660,000

Transition rooms

11.

1,800,000

Secondary school reform and reorganiza-

tion

12.

540,000

Pre-collegiate curriculum

13.

1,485,000

Alternative secondary school units and

arrangements

14.

653,000

Occupational and career education

expansion

15.

179,000

Pilot CMI and CAI program in one high

school attendance area

16.

727,000

Computer hardware to enhance attendance

taking, record keeping and communica-

tion with parents

17.

140,000

Computer home learning reading program

18.

900,000

Computer labs in secondary schools

19.

224,000

Writing to read programs

20.

1,249,000

Summer Learning Programs

-71-

21.

517,000

Special Education

22.

2,035,000

Staff development

23.

1,600,000

Data processing equipment and program

24.

5,000,000

Magnet Schools

25.

240,000

Transportation

26.

1,085,000

Voluntary Transfers

27. 25,000,000

First year facilities improvements

28.

85,000

Parent/Community Involvement

29.

25,000

Public Information

30.

92,000

Plan Administration

31.

280,000

Monitoring

32.

250,000

$68,917,000

Housing

*Expenses for these programs are specified in discrete terms but if all programs included in this plan are ordered, the total cost will probably be less than the total indicated here. In addition, to the extent it is not possible to implement or complete budgeted activities during the 1985-86 school year, they will be implemented or completed during the 1986-87 school year.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

KAUMA JENKINS, et. al., Plaintiffs, VS.
STATE OF MISSOURI, et. al., Defendants.

) ) ) ) ) Case No. 77-420-CV-W-4
) ) ) ) )

COMPLAINT IN INTERVENTION

1. This is an action, predicated on the Fourteenth Amendment to the United States Constitution and the Civil Rights Act of 1871, which seeks to eliminate the vestiges of the Kansas City, Missouri School District's illegal dual school system and provide the adjudicated victims of discriminatory conduct with real and tangible relief. This Court already has jurisdiction in this case.
2. The averments in paragraphs 1-18 of the accompanying Motion to Intervene are incorporated herein by reference thereto. The students listed therein are still being denied equal educational opportunities by the practices and actions of the Kansas City, Missouri School District and continue to suffer from the injuries inflicted upon African American students by the adjudicated unconstitutional conduct of the KCMSD and the State of Missouri.
1

3. The Defendants' failure to take all steps necessary to eliminate all the vestiges of the dual school system is a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution, as well as the orders of this Court.
Wherefore Prospective Plaintiff-Intervenors respectfully requests the Court to issue the following relief:
(1) Implement, for the 1995-96 school year, an education improvement plan with initiatives designed to address the specific academic injuries inflicted upon African American students;
(2) Order the KCMSD to hire personnel qualified to teach in an urban school system and cease and desist the practice of hiring under-qualified and inadequately prepared teachers and school administrators;
(3) Order the KCMSD to use its resources to restore school nurses, homeschool coordinators, and additional school-based instructional personnel;
(4) Order the KCMSD to provide continuous cultural and racial sensitivity training to all instructional personnel and school administrators;
(5) Implement, for the 1995-96 school year, initiatives specifically designed to address the debilitating vestiges of 'low achievement and general attitude of inferiority among blacks`;
(6) Modify the sequence and priority of capital improvement projects to provide for the immediate construction of new non-magnet schools to replace the school
2

buildings previously ordered dosed by this Court; (7) Implement, for the 1995-96 school year, additional staff development,
academic enhancement, and school enrichment programs for the traditional schools, including the annexes;
(8) Implement, for the 1995-96 school year, a program specifically designed to promote, increase, and foster parental involvement by the victimized and disenfranchised segments of the community;
(9) Order the KCMSD to design and implement a coherent and clearly defined curriculum with substantive outcomes;
(10) Order the KCMSD to remove personnel who discriminate against students on the basis of race;
(11) Order an independent comprehensive evaluation of all KCMSD teachers and school administrators,
(12) Order an independent study of KCMSD educational programs, curricular practices, and instructional methodologies;
(13) Order an independent analysis of student achievement in the KCMSD: (14) Award the plaintiff-intervenors reasonable costs and attorneys fees; and (15) All other relief that may be necessary.
3

Respectfully submitted:
of Edward L Pendleton ...._ Edwar•Pendleton #22992
Holly Winkler #43267 600 East 11th Street Kansas City, Missouri 64106 816/221-5980 816/471-4208 FAX
i 40pr,v479
Clinton Adams, Jr. #25438 600 East 11th Street Kansas City, Missouri 64106 816/221-5980 816/471-4208 FAX Of Counsel
Attorneys for Prospective Plaintiff-Intervenors

CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing Motion to Intervene, Complaint in
it Intervention, and Suggestions in Support of Motion fo Intervene were mailed on this day of December 1994 to:
Arthur Benson, Esq. 1000 Walnut, Suite 1125 Kansas City, Missouri 64106 Attorney for Kalima Jenkins, et. al.
Allen R. Snyder, Esq. Hogan & Hartson LLP. 555 Thirteenth Street, N.W. Washington, D.C. 20004-1109
Shirley Keeler, Esq. Blackwell, Sanders Matheny,
Weary & Lombardi 1100 Two Pershing Square 2300 Main Street Kansas City, Missouri Attorneys for the Kansas City, Missouri
School District
Michael J. Fields, Esq. Office of the Attorney General 1700 Jefferson Street Jefferson City, Missouri 65109 Attorneys for the State of Missouri
Scott A. Raisher, Esq. Jolley, Walsh & Hager, P.C. 204 East Linwood Blvd. Kansas City, Missouri 64111 Attorneys for Intervenor AFT Local 691

 
 1

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

-5 SEP

KALIMA JENKINS, et al.,

)

)

Plaintiffs,

)

wits( rwri;,gt . i* t.ii f.a0:131.

„4...:-Vi
,-. t

\ 6-'

/CY

-.9 Tril,

vs.

)

No. 77-0420-CV-W-4

STATE OF MISSOURI, et al.,

)

Defendants.

AMICI CURIAE GREATER KANSAS CITY CHAPTER OF THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, ET AL.'S MEMORANDUM IN SUPPORT OF MARK ANTHONY NEVELS, ET AL.'S MOTION TO MODIFY LONG RANGE MAGNET SCHOOL PLAN
COME NOW Amici Curiae Greater Kansas City Chapter of the Southern Christian Leadership Conference, Black Chamber of Commerce of Greater Kansas City, Inc., Coalition for Educational and Economic Justice, W.E.B. Du Bois Learning Center, Freedom, Inc., Black United Front, and Minority Contractors Association of Greater Kansas City, Inc., by and through their attorneys of record, and submit to this Court these statements and arguments in support of Movants Mark Anthony Nevels, et al.'s request to be separately represented in this desegregation litigation and to modify the magnet school admissions quota policy presently in place:
INTEREST OF AMICI CURIAE Amicus Curiae Greater Kansas City Chapter of the Southern Christian Leadership Confere-ce is a spiritually-based social and political activism organization concentrating on civil and

human rights issues. The national S.C.L.C. organization was founded in 1957 by the late Dr. Martin Luther King, Jr. and is now headed by Dr. Joseph Lowery of Atlanta, Georgia. Local S.C.L.C. membership numbers approximately 1000.
Amicus Curiae Black Chamber of Commerce of Greater Kansas City, Inc. is a not-for-profit, membership organization with approximately 210 members. The BCC is organized, in general, to preserve the competitive enterprise system of business and to promote that system. In addition, the BCC promotes community growth and development through programs of a civic, social and cultural nature and by discovering and correcting abuses which prevent the promotion of business expansion and community growth.
Amicus Curiae Coalition for Educational and Economic Justice is a 35-member volunteer organization based in Kansas City, Missouri. The Coalition focuses on educational and economic issues of interest to the African-American community.
Amicus Curiae W.E.B. Du Bois Learning Center is a not-forprofit, volunteer-staffed organization founded in 1973. The Center provides tutorial assistance to elementary and secondary students in reading, mathematics and science.
Amicus Curiae Freedom, Inc. is a predominantly black civil rights and political organization operating in the Kansas CityJackson County area. Freedom's membership numbers in excess of 250 and includes area representatives in the Missouri House of Representatives, the Missouri Senate, the Jackson County Legisla-
2

ture, the Jackson County Democratic Committee, the City Council of Kansas City, Missouri, the Kansas City, Missouri School Board and various other area boards and commissions.
Amicus Curiae Black United Front-Kansas City Chapter is a not-for-profit organization affiliated with the National Black United Front headquartered in Chicago, Illinois. The Black United Front is a social action organization specializing in issues of importance to the African-American community.
Amicus Curiae Minority Contractors Association of Greater Kansas City, Inc. is a 105-member, not-for-profit organization dedicated to the assistance of minority-owned contracting firms. The Association represents the interests of minority construction businesses by working with the federal, state, and local governments to establish guidelines for contracting with minority-owned construction businesses.
ARGUMENT The removal of all vestiges of state-maintained discrimination is the inherent goal of judicially-mandated school desegregation remedies. Little Rock School District v. Pulaski County Special School District No. 1, 778 F.2d 404, 433 (8th Cir. 1985), cert. denied, 476 U.S. 1186 (1986). See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) [Brown I]; Brown v. Board of Education, 349 U.S. 294 (1955) [Brown II]; Green v. County School Board, 391 U.S. 430 (1968); Swann v. CharlotteMecklenberg Board of Education, 402 U.S. 1 (1971). Whatever means ordered to bring about desegregation are intended to inure
3

benefits to the victims of unconstitutional racial segregation. The burdens of a desegregation effort, however, must be as evenly--distributed as possible. See Davis v. Board of Education of North Little Rock, Ark. School District, 674 F.2d 684, 687 (8th Cir. 1982), cert. denied, 459 U.S. 881 (1982); Clark v. Board of Education, 449 F.2d 493, 496 & 499 (8th Cir. 1971) (en banc), cert. denied, 405 U.S. 936 (1972). Yet, in no event may the burdens of a desegregation plan fall exclusively on minorities. See, e.g., Arvizu v. Waco Independent School District, 495 F.2d 499, 504 (5th Cir. 1974); Lee v. Macon County Board of Education, 448 F.2d 946, 753-754 (5th Cir. 1971). Amici Curiae believe that very clearly the burdens of the Long Range Magnet School Plan's race-based admission quotas fall squarely, and solely, on the backs of minority children in the KCMSD -- the intended beneficiaries of the remedy.
Movants properly characterize current United States Supreme Court standards concerning governmental race-based classifications. Amici Curiae urge the Court to reexamine and revise the Long Range Magnet School Plan's race-based admission quotas in accordance with Movants' well-reasoned constitutional analysis.
In Wygant v. Jackson Board of Education, 426 U.S. 267
(1986), the Supreme Court set forth its two-pronged test for race-based remedies. Before a race-based remedy will be approved, there must be a compelling governmental interest and there must be a narrowly-tailored means of effectuating that interest. Id. at 274. Removal of past and present racial
4

discrimination in public schools is obviously a compelling governmental interest worthy of remedial action. With this aspect of the Court's findings and orders in this case, Amici have no quarrel. With the implementation of the admissions quota policy imposed under the court-approved KCMSD Long Range Magnet School Plan, however, Amici take issue.
The Wygant analysis requires that a race-based remedy must "further a legitimate remedial purpose by a means that [does] not impose disproportionate harm" on those affected by a plan's racial preference. Id. (emphasis added). Minority children in the KCMSD suffer disproportionate harm as a result of the Long Range Magnet School Plan's admission quotas. Therefore, rigid application of the admission quotas, as currently structured, must cease.
This Court expressed three remedial goals necessary to restore victims to the position they would have occupied without the State's and the KCMSD's constitutional violations: "first, to improve the educational lot of the victims of unconstitutional segregation; second, to regain some portion of the white students who fled the district and retain those who are still there; and third, to redistribute the students within the KCMSD to achieve the maximum desegregation possible." Jenkins vState of Missouri, 855 F.2d 1295, 1302 (8th Cir. 1988). The Long Range Magnet School Plan was implemented by the Court to help achieve these goals. Id.
Improvements to existing KCMSD structures and the construc-
5

tion of new facilities, as well as the addition of quality personnel, should advance the district toward achieving the first goal with respect to magnet schools. KCMSD's efforts to recruit nonminority students into the magnet schools, however, has been a monumental failure. A very few schools, e.g., Lincoln College Preparatory Academy and Kansas City Middle School of the Arts, have experienced successful enrollment campaigns. The vast majority of KCMSD schools, however, face a 1989-90 school year operating with a large number of minority student vacancies as a result of rigid adherence to the plan's inflexible 60%-40% quotas.
KCMSD's failure in moving toward accomplishment of the second goal has drastically impaired meaningful desegregation in the district. More tragic, however, is the devastating impact this failure has had and will continue to have on traditional schools. Inadequate numbers of teachers and insufficient supplies of basic learning materials have resulted from KCMSD's inexcusable neglect of traditional schools -- particularly traditional elementary schools where gross overcrowding, largely of minority students denied access to magnet schools, has become the norm because of the rigid racial quotas. Additionally, the problems of the remaining traditional middle schools, such as King, Westport and Nowlin, have been well chronicled in the local press. While millions of dollars are showered upon magnet schools which will sit with empty desks during school hours, thousands of black schoolchildren will be herded into neglected
6

traditional schools into which merely a dribble of KCMSD efforts are allocated.
Clearly, the Court's goals of remedying past constitutional violations have been frustrated by KCMSD's ineptness. Once again minority children in the KCMSD have fallen victim to a dual school system in Kansas City, Missouri. Only by granting the relief prayed for by Movants Mark Anthony Nevels, et al.
will minority children in the KCMSD be afforded their constitu-
tional right to equal educational opportunity. CONCLUSION
This Court should order the relief prayed for by Movants Mark Anthony Nevels, et al. and modify the magnet school plan to permit black Kansas City public schoolchildren equal access to the multi-million dollar magnet school program.
Respectfully submitted, LANDMARK LEGAL FOUNDATION

Mark J

ier (#302 0)

Jerald

Hill (#30567)

Richard P. Hutchison (#34865)

Landmark Legal Foundation

15th Floor

1006 Grand Avenue

Kansas City, Missouri 64106

(816) 474-6600

ATTORNEYS FOR AMICI CURIAE GREATER KANSAS CITY CHAPTER OF THE SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, ET AL.

7

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing wrs served by first-class U.S. mail, postage prepaid, thisZltday of September, 1989 to:
Arthur A. Benson II Benson & McKay 1000 Walnut, Suite 1125 Kansas City, Missouri 64106
Theodore M. Shaw NAACP Legal Defense Fund 8th Floor 634 South Spring Street Los Angeles, California 90014
Allen R. Snyder Patricia A. Brannan Hogan & Hartson 555 Thirteenth Street, N.W. Washington, D.C. 20004
Shirley Keeler Blackwell, Sanders, Matheny, et al. Two Pershing Square 2300 Main Street Suite 1100 P. 0. Box 419777 Kansas City, Missouri 64141
Michael Gordon 204 W. Linwood Blvd. Kansas City, Missouri 64106
William L. Webster Attorney General Michael J. Fields Assistant Attorney General Broadway Building, 6th Floor P. O. Box 899 Jefferson City, Missouri 65102-0899
8

H. Bartow Farr III David R. Boyd Beth Heifetz Onek, Klein & Farr 2550 M Street, N.W. Suite 350 Washington, D.C. 20037

tt•e

a i i Cur ae Greater

Kansas City Chapter of the

Southern Christian Leadership

Conference, et al.

9

 
 INTEGRATION

DATA

Second Day of School, September 8, 1955 Actual Occurrence of Integration Com pared With Predicted Occurrence

,School

Attucks

Total
Grd.
Kdg.

W. Phillips

Total
Grd. Kdg.

B. T. Washington Total
Grd. Kdg.

W. W. Yates

Total

Grd. Kdg.

Carver

Total
Grd. Kdg.

Douglass

Total
Grd. Kdg.

Sumner

Total
Grd. Kdg.

D. A. Holmes

Total
Grd. Kdg.

Phillis Wheatley Total
Grd. Kdg.

ELEMENTARY

Total
488
422 ' 66
773
653 120
698
604 94
1111 870 241
482 407 75
196'
170 26
438 365
73
770 652 118
655 550 105

White
2 2 0
1 1 0 6 6 0 4o 33 7
39
29 10

Negro
488 ' 422
66
773
653
120
698
6o4 94
1111 870
241
480 405 75
195 169
26
432 359.,
73'
730 619
616
521 95

Per Cent Estimated

Negro

Per Cent

100

98.0

• 100

97.8

100

99.4

100 '
99.6

97.7 86.0

99.14

0

98.6

6 9.3

914 .8

83 .8

94.0

77.6

School Banneker Greenwood Yeager Graceland Allen Woodland
Humboldt Karnes Switzer Kensington Garrison

Total Ord. Kdg.
Total
Ord. Kdg.
Total Ord. Kdg.
Total
Grd. Kdg.
Total Ord. Kdg.
Total
Grd. Kdg.
Total
Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total
Grd. Kdg.

Total
373 309
64
838
703 135
683
578 105
361
304 57
270 235
35 894
765 129
674
610 64
528 458
7o
837 717 120
641 581 60
290 235
55

• White
28 25
3
187
171 16

Negro
345 284
61
651
532 119

182

501

152

426

3o

75

257

104

210

94

47

10

206

64

180

55

26

9

690

204

598

167

92

37

540

1311

492

118

48

16

434

94

380

78

54

16

712

125

5991..x:8

113

7

585

56

529

52

56

271

19

217

18

54

1

Per Cent Estimated Negro Per Cent

92.5

87.6

77.7

63.0

73.3

61.1

28.8

27.0

23.7

21.7

22.9

23.4

' 19.9

19.4

17 .8

18.4

20.0

8.7

10.3

6.6

5.o

School Longfellow Mercy Hospital
School Linwood Ladd DeLano Ashland Lowell Milton Moore E. C. White Franklin Faxon
Longan

Total Grd. Kdg.
Total Grd. Kdg.
Total
Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total
Grd. Kdg.
Total Grd. Kdg.

Total 776
670
106
34
32 2
769
654 115
825 712 113
113' 113
0
858
738 120
405
335
70
518 443
75
190 171
19
539
452 87
543
486 57
44o
375
65

White
730 627
103
32 30
2
629
529 100
786
678 108
108
108 0
827 716
111
392 322
70
506 433
73
186
168
18
532
445 87
539 482
57
437
373 64

Negro
46
43
3
2 2 0
140 125
15
39 34 5
5 5 o
31
22
9
13
13
12 10
2
4 3
1
7

Per Cent Estimated

Negro

Per Cent

5.9

6.3

5.9

0

18.2

13.5

4.7

0

4.4

3.6

0

3.2

0

2.3

1.5

2.1

1.9

1.3

1.8

4

Laza

thin

4

3

.7

0

2
1

School Norman Thacher Scarritt Whittier Rollins Bancroft Nelson Swinney

Total Grd. Kdg.
Total Grd. Kdg.
Total
Grd .
Kdg.
Total
Grd. Kdg.
Total Grd.' Kdg.
Total Grd. Kdg.
Total Grd. Kdg.
Total
Grd. Kdg.

Total 295 262 33 574 483 91
635 559
76
912
787 125
435
379 56
605 525
8o
.281
254
27
475
418 57

White 293
261 32
573 482
91
634 558 76
911
786 125
'435 379
56
6o5
525 80
281 254
27
475 418
57

Negro 2 1
1
1 1 0
0
1 1 0
0 0 0
0 0 0
0 0 0
0 0
0

Per Cent Estimated

Negro

Per Cent

.7

Lesz

than

.17

0

.16

0

.11

Less

than

0

1.3

0

Less

than

0

Less.

than

0

Less

than

- 4 -

Schools Lincoln High* R. T. Coles* Manual High & Vocational Central Junior * West Junior Central Hi gh* -East High Westport High Paseo High Northeast High Southwest High

HIGH SCHOOLS

Total 738 898
1416
1633 661
1748
1636
1543 1665 1400
2042

White 2 4
716
1164 572
1553 1555
1508 1638 1398 2041

..„ •

Negro 736 894
700
469 89 195 81
35
27 2 1

Per Cent Negro
99.7

Estimated Per Cent
88.0

99.5

49.4

56.0

28.1

13.4

7.0

11.2

9.0

4.9

3.0

2.3

2.0

1.6

2.0

.14

0

.05

0

*Estimates at Central and Central Junior' and at Lincoln and Coles were combined. Taken together the data on these combinations is as,follows:

Schools

Total

White

Negro

Pet Cent Estimated

Negro

Per Cent

Lincoln - Coles Central - Central Junior

1636
3381

6
2717

1630 664

99.7

88.0

19.6

9.0

,,-

 
 In the Cause of Kalima Jenkins, et al.
vs. State of Missouri, et al. Case No. 77-0420-CV-W-4

Report of the Desegregation Monitoring Committee for the period July 1, 1992 - June 30, 1993

Eugene E. Eubanks, General Chairperson

Budget Committee Tom Bixby, Chair Education Committee Miguel Sancho, Chair
Joint Review Committee Tom Bixby, Chair

Desegregation Committee James Oglesby, Chair
VIDT Committee Carl DiCapo, Chair Ad Hoc Committees Personnel Committee Chuck James, Chair

TABLE OF CONTENTS

EXECUTIVE COMMITTEE

1

LRMP RENEWAL PROCESS

1

BUDGET COMMITTEE

3

INTRODUCTION

3

DIRECT COSTS

4

LONG RANGE FINANCIAL PLAN

4

PURCHASING

5

SITE LEVEL INVOLVEMENT IN BUDGET PROCESS

5

JOINT REVIEW COMMITTEE

6

RECOMMENDATIONS

6

DESEGREGATION COMMITTEE

7

DESEGREGATION TRENDS

7

Total Student Membership

7

Ninety Percent (%) Minority Schools

8

Comparison of Minority Enrollment Percentages 1991-92 and 1992-93

8

MARKETING AND RECRUITMENT

8

KCMSD Recruitment of Non-Minority Suburban and Private Students, 1990-91 - 1992-93

9

CAPITAL IMPROVEMENTS

10

CIP Budget Overruns

10

MAINTENANCE

11

TRANSPORTATION

11

MIDDLE SCHOOLS

12

Desegregative Attractiveness

12

Non-Minority Retention and Withdrawals

12

First Choice Request

13

Academic Achievement

14

Attendance

16

Climate

17

Discipline

17

Security

19

Human Relations

20

Conclusion

20

RECOMMENDATIONS

21

EDUCATION COMMITTEE

22

RENEWAL PROCESS

22

TASK FORCES

24

STAFF DEVELOPMENT

24

SUSPENSION AND CLIMATE

25

EQUIPMENT AND PHYSICAL PLANT

26

EFFECTIVE SCHOOLS AND GRANT PROGRAM

26

PERSONNEL ACTIONS

27

MIDDLE SCHOOLS

28

SUMMER SCHOOL

28

ACADEMIC ACHIEVEMENT

28

PERSONNEL COMMITTEE

30

RECOMMENDATIONS

31

VIDT COMMITTEE

32

APPENDIX A

33

APPENDIX B

39

EXECUTIVE COMMITTEE REPORT TO THE COURT FOR YEAR VIII
LRMP RENEWAL PROCESS
DMC activity during the first and second quarters of the year primarily focused on the L.RMP renewal. Extensive subcommittee hearings and review of documents were undertaken.
Unavoidably, the DMC identified concerns very early in the process. It was clear from the manner in which initial planning was conducted that the renewal plan was not intended to be a "bottom-up" process. Broad-based task forces, created in prior years specifically to contribute to the renewal, were not included in the planning process. Site-based personnel were not fully informed of proposed changes in programs or budgets, and community input was not sought or welcomed. It was largely due to the closed nature of the planning process that the Joint Review Committee (JRC), composed of Budget and Education Subcommittee members, determined that a public forum was warranted in order to gather information relative to community perception of the plan. Immediately upon release of the initial draft of the LRMP renewal, it was clear that the lack of inclusion of needed stakeholders in the planning process would be a defect which could not be fully rectified. Although some changes were made as a result of objections from schools, patrons and parents, the renewal, with very little exception, was not adequately embraced by the persons charged with its implementation nor KCMSD education consumers. KCMSD held public meetings after release of the first draft of the plan; however, there was minimal dialogue at these meetings, as persons were literally speaking to court reporters at various locations throughout the city.
Defects in the renewal were further demonstrated by such things as the reduction of personnel and budgets without meaningful discussion and a clear understanding of their impact on successful programs. This was most evident in proposed cuts for the 1986-87 magnets, which resulted in both the DMC and Court receiving hundreds of protest letters. Patrons and site based KCMSD personnel persisted with efforts to maintain the quality of those programs and opposed the budget cuts. Had the KCMSD been serious about the input of affected parties during the planning period, something workable and innovative may have emerged.
Objections also were raised to proposed new themes which, despite some theoretical attractiveness, clearly did not have any semblance of an implementation plan, employee recruitment plan, or a workable staff development plan. Again, the plan appeared to have been composed in a vacuum with no regard for persons actually required to deliver the new product to KCMSD school children.
1

The subcommittee process further revealed that there was a growing consensus among committee members that with the limited "bottom-up" planning and establishment of numerous new themes without proper implementation procedures, the KCMSD would be quickly overwhelmed and current successful magnet programs would be at risk. (A glimpse of this was provided late in the year, although presented in its renewal plan and approved by the Court in April, KCMSD, as late as July, had not determined fundamental aspects of implementing the expansion of Lincoln College Prep, including staffing, whether or not the existing administrative leadership at Lincoln College Prep would also head the expanded program, class scheduling, and no notification had been formally provided to parents. It was only after several meetings initiated by the DMC that KCMSD began to vigorously address these issues).
KCMSD's plans for magnetizing all schools was not embraced by a significant portion of the community or the DMC. Acknowledging that the non-magnet elementary schools are in dire need of attention, the committee concluded that a lack of resources, recruitment, inadequate academic performance, and poor facilities were a primary cause of continuing racial isolation at those schools. It was the position of the DMC that these issues might somewhat be remedied without the imposition of unwanted elementary magnet themes at this time. The DMC believed then and does now that KCMSD should immediately focus efforts on improving non-magnet schools and struggling magnet themes which continue to be at risk.
It was the DMC's unanimous decision not to support the LRMP renewal proposal. As has been publicly stated, the DMC believes that meaningful desegregation can be achieved in the KCMSD; however, the proposed renewal plan for 1993-94 was not believed to be the mechanism which would move the Court's efforts forward. The DMC, between November and April, and within the language of the LRMP renewal motion, suggested that KCMSD come forward with proposals to move ahead on matters which were not in controversy, i.e expansion of Lincoln College Prep, addition of a Montessori school, etc.;- however, the District did not choose that option, apparently relying on an all or nothing posture.
Finally, the DMC must report to the Court that throughout the LRMP renewal review process, the KCMSD was far from forthcoming. Information was presented so as to prevent full disclosure, and much of the information was biased to such an extent that it lacked credibility which, unfortunately, seems to be a trend that has persisted throughout the tenure of the present administration.
2

BUDGET SUBCOMMITTEE REPORT TO THE COURT FOR YEAR VIII
INTRODUCTION
Year VIII has seen the Kansas City, Missouri School District (KCMSD) continue a disturbing trend in its management of the desegregation program: the District continues to ignore major responsibilities, knowing that the Desegregation Plan will bail them out. The District has failed to provide even Step increases for teachers for the last four years (let alone pay raises), yet District administrators frequently get "pay raises" in the form of new job descriptions, promotions, or consulting contracts. The badly needed pay raises are left to the Court to order. (It is noted that the Court did act to somewhat remedy the compensation issue for teachers in the district in June 1993.) In one three-month period during Year VIII, 32 Central Office personnel received pay raises in excess of 10%, 14 of which were over 20%, and one was nearly a 100% increase. A position for a Director of Athletic Activities was created and filled in mid-April at a salary over $67,000. School nurses have been cut because of budget constraints, yet the District applied $3,000,000 for payment of its legal fees. The District finds money when it wants to, but can't find money if there is a reasonable chance the Court will provide it. The District appears to be much more interested in supporting its administration than in educating its children.
The Desegregation Plan has provided hundreds of millions of dollars for new and improved facilities, but the District has done nothing to ensure proper maintenance for their upkeep over the years to come. The District will lose millions in operating budget dollars over the next two years as a result of no longer having sales tax income. Yet the District has failed to provide any semblance of a long range financial plan to deal with this concern, let alone the eventual end of the desegregation program. Hopefully, with the new Missouri foundation program and a probable influx of funds to the KCMSD, an adequate long-range financial plan will promptly be developed.
In a similar vein, the District is shifting expenses to future years, and income to current years in order to put off difficult decisions, despite the fact that the later decisions will be much more difficult. Financing operating expenses with refinanced bonds, restructuring pension payments so that they are very low now, but increase again in years to come, and collecting two years of direct costs now in order to put off the impact of the loss of sales tax revenue for another year are all examples of the problem.
Most of the Budget Subcommittee (BSC) recommendations from last year were not addressed by the District: they failed to establish a maintenance and reserve fund, a long range financial plan (see section below), and only began to develop direct cost measurement mechanisms after ordered to do so by the Court. Furthermore, the District has yet to undertake most of the "improvement opportunities" suggested by the DMC commissioned Deloitte & Touche Management Study from 1990. These
3

opportunities promised substantial savings for the Administration — savings that could have gone to meet some of the many unmet needs in the District.
The District continues to underspend its desegregation budgets by substantial amounts: one case in point is Effective Schools funds of which three quarters into the year more than 40% of the funds remained unspent. This is particularly disturbing since this program is designed for implementation based on a specific plan for each fiscal year. This annual problem may be explained by reports from the DMC's Program Monitors that suggest that some schools quite literally have more than they know what to do with.
It should be noted that the District's tracking of its money continues to improve, and that the Purchasing Department's improvement has been a pleasure to see (see section below). Finally, the District should be congratulated for developing a plan to save several million dollars in the desegregation funds from the transportation budget by rescheduling bell times at some schools. The BSC would hope that the District keeps in mind that this savings was suggested by the BSC some time ago.
DIRECT COSTS
Despite repeated urgings by this committee, the District failed to establish mechanisms for the measurement of direct costs until the Court clearly indicated that future direct cost funding would be contingent upon such measurement of ongoing costs. Since that order, the BSC has urged the parties to work out a settlement on direct costs, because as much as $1,000,000 per year of the eventual direct cost award would go for attorney and other professional fees. This did not appear to be in the best interest of any of the parties, taxpayers, or the patrons of the District. Fortunately, the State of Missouri and the KCMSD did reach an agreement on the direct cost issue, and the saving of attorney and accountant fees did occur.
LONG RANGE FINANCIAL PLAN
The District's reluctance to develop a long range financial plan is, perhaps, understandable. As long as it can be claimed that desegregation would be impossible without desegregation revenue, the District stands a good change of keeping the money flowing. To the extent that the District ignores critical needs with its operating budget, the desegregation budget will cover the costs in order to ensure that desegregation remains possible. The sooner the District is capable of operating without the benefit of desegregation revenues, the sooner the District is likely to be weaned from them. This apparently is the line of thinking adopted by the District and, we believe, is short-sighted and destructive to the desegregation plan.
4

At this writing, the District has, at long last, prepared a long range financial plan (as a result of another court order). But the DMC has communicated to the District, that the plan is not adequate.
PURCHASING
The turnaround in the Purchasing Department since the DMC recommended and the Court ordered sanctions against the KCMSD's Purchasing Department has been nothing short of remarkable. From all accounts, for the first time in memory, supplies and textbooks were in schools on time and in an orderly fashion. Generally speaking, disputes over the fairness and efficiency of the Purchasing Department have virtually disappeared. The District should be commended for addressing and solving what had been a chronic problem in their administration for many years.
SITE LEVEL INVOLVEMENT IN BUDGET PROCESS
Another chronic problem within the administration of the District is a lack of site level involvement in the budget process. Although the Budget Office claims that the site level administrators have all of the information necessary to develop and track their budgets, either these claims are untrue, the site level people are inadequately trained, or the administration fails to impress upon the site level people the importance of accountability to budgets. Whatever the cause, site level understanding of and accountability for budgets is sorely lacking. This issue is important when it comes to assessing needs and developing plans for addressing those needs from the bottom up, as called for in the desegregation plan. If site level administrators are not aware of available resources, it is unlikely that they will be able to realistically address problems at their schools.
During the current fiscal year, DMC monitors have submitted written survey reports on their visits to a number of individual schools at which time they interviewed the administrative personnel, staff, students, non-administrative staff, and SAC members. They also spent time observing what was taking place within the classrooms. These survey results, support in many respects the contention of the BSC that it is not more money that is generally needed at the schools, but better communications and support from central administration. Timely replacement, repair and maintenance of equipment, especially computers, is frequently mentioned. Building maintenance appears to be a developing problem. Almost all schools appear to have adequate resources, materials and equipment, with the exception of the non-magnets, necessary to carry out the educational program.
5

JOINT REVIEW COMMITTEE
The Joint Review Committee (JRC) continues to review budget transfers and Effective Schools plans. This year, for the first time, the JRC insisted on five parental signatures for approving most Effective Schools changes, and the change in policy obviously was viewed, in some cases, as another hoop to jump through. However, the JRC believes that the rule will, at worst, enforce some level of parental accountability for the site level plans and, at best, get more parents involved in the process.
The JRC continues to review budget transfers which cause modest changes in the court order only on a necessity basis.
RECOMMENDATIONS
1. The KCMSD should be required to begin a maintenance reserve program funded by operating and desegregation funds under principles of joint and several liability to ensure proper maintenance of the CIP investment made by the desegregation program.
2. The KCMSD should utilize direct cost and other funding to implement Deloitte & Touche type recommendations from the 1990 management study in order to improve efficiency and save money in the administration of the district.
3. The KCMSD should attempt to "downsize" its administration. It was the most top-heavy of the 15 studied by Deloitte & Touche in 1990, and certainly has not markedly improved since that time.
4. The KCMSD should be required to implement an acceptable long range funding plan.
5. The KCMSD should find ways to divert additional funding to non-magnet schools.
6. The KCMSD should be required to earmark some of the additional revenue it may receive under the revised School Foundation Formula to fund desegregation programs.
6

DESEGREGATION SUBCOMMITTEE REPORT TO THE COURT FOR YEAR VIII
In Year VIII, the Desegregation Subcommittee observed continued disturbing .I trends within the Kansas City, Missouri School District (KCMSD) which further convinced the subcommittee that it must once again report to the Court that progress in desegregation is far short of expectations, and that the accomplishments made within the KCMSD are not commensurate with the dollars expended. The question of whether desegregation is occurring within KCMSD was answered with a reported .6 increase in minority enrollment (from 74.2% in 1991-92 to 74.8% in 1992-93). This percentage of minority students is now higher than the percentage which existed when the plan was initiated.
DESEGREGATION TRENDS
Total Student Membership

1986-87 1987-88 1988-89 1989-90 1990-91 1991-92

9,604 9,172 9,148 8,785 8,891 9,297

26,705 26,257 25,974 26,065 26,207 26,701

36,309 35,429 35,122 34,850 35,098 36,007

73.6 74.1 74.0 74.8 74.7 74.2

Source: Thirty-First - Thirty-Eighth Annual Reports on the Progress of Desegregation in the Kansas City Pubfic Schools

The increase in KCMSD student population, from 1991-92, to 1992-93, does not provide an adequate explanation for the higher percentage of minority enrollment, as the KCMSD increased by only 342 students in 1992-93, compared to 909 in 1991-92.
The KCMSD has also increased the number of 90%+ minority schools by one. A review of the January 27, 1993 Student Census Count reveals that 10 traditional elementary schools and five magnet secondary schools are racially isolated when the 90%+ standard is utilized.

7

Year

Ninety Percent (%) Minority Schools

Elementary

Secondary

Total

1987-88 1988-89 1989-90 1990-91 1991-92 1992-93

20

5

25

16

5

21

13

8

21

11

5

16

10

4

14

10

5

15

Source: KCMSD 1987 - 1993 Student Census Counts

A comparison of 1991-92 and 1992-93 minority enrollment percentages also reflect only minimal decreases at the magnet elementary and middle school level. Increased minority enrollment is seen at the non-magnet elementary schools and at high schools, alternative and other special schools.

COMPARISON OF MINORITY ENROLLMENT PERCENTAGES 1991-92 AND 1992-93

1991-92

1992-93

Non-magnet Elementaries

81.7

Magnet Elementaries

66.8

Magnet Middle Schools

77.2

Magnet High Schools

78.0

Alternative Schools

77.9

Other

76.0

Source: KCMSD January 29, 1992 Student Census Count KCMSD January 27, 1993 Student Census Count

84.1 66.7 77.1 77.6 81.4 77.0

MARKETING AND RECRUITMENT
The KCMSD presented a 1992-93 marketing and recruitment plan which mirrored the 1991-92 plan, wherein advertisement was primarily contracted out. In-house staff monitored those contracts and implemented various other recruitment activities throughout the community.

8

The Desegregation Subcommittee previously informed the Court that KCMSD recruitment is now handled in a professional manner with high quality recruitment tools. Unfortunately, the Recruitment Division does not appear to have the necessary assistance in retaining students, and coordination between KCMSD divisions continues to be a difficult task.
It is acknowledged that persons responsible for recruitment in the KCMSD have a formidable task, however, the number of suburban and private students recruited and retained must substantially increase in order for desegregation to ever adequately occur in the KCMSD. The impact of retention is perhaps best demonstrated by a review of the number of non-minority suburban and private students recruited in the last three years (see chart). Between 1990-91 and 1991-92 the number of students recruited in this category increased by 170; however, between 1991-92 and 1992-93, the number of students increased by only 24. (It is also noted that KCMSD substantially lowered its goal for recruiting students in this category in 1992-93.) While it can be seen that KCMSD has improved over the three year period in recruiting non-minority suburban and private students it is also evident that retention is vital in order for the recruitment effort in this category to have an impact.
KCMSD RECRUITMENT OF NON-MINORITY SUBURBAN AND PRIVATE STUDENTS, 1990-91 - 1992-93

1990-91 1991-92

1992-93

Goal Number Enrolled

1,000 545

2,100 715

1,573 739

Source: DMC Meeting Minutes, September 20, 1990 , Page 11
Consent Agenda Board Item I-1-A, June 1, 1992 New Non-Minority Application to Enrollment Status, November 1992 Recruitment & Marketing Report

In last year's report to the Court, the Desegregation Subcommittee recommended that reliable non-minority retention and withdrawal data be collected and analyzed by KCMSD to assist in the implementation of procedures to maintain non-minority enrollment. This year, the DMC requested information regarding reasons for non-minority students leaving KCMSD in an effort to discern trends. It became obvious that KCMSD was not effectively acquiring such data despite the previous year's recommendation and the very substantial dollars provided by the Court for recruitment. The KCMSD had in place a cumbersome form which was only sporadically used and there was a lack of clarity regarding which central office division was accountable for monitoring use of the form and maintaining student withdrawal data. KCMSD had collected 1,228 withdrawal forms which it reviewed only after the request of the DMC. The information provided in the withdrawal form was so defective that KCMSD had no idea why 411 of the 1,228 students had left the District and could not even determine where the 411 students went after leaving the District. KCMSD has

9

given the DMC assurances that this process has been improved.' The Desegregation Subcommittee will continue to monitor this function in the coming year.
CAPITAL IMPROVEMENTS
The Desegregation Subcommittee must report to the Court that Year VIII also included at least one disturbing delay in construction. Renovations of the permanent facility for Robeson Classical Greek Middle School have been postponed for one to two years due to unabated asbestos. This delay will require the program to remain in temporary facilities not ideally suited for the Classical Greek theme and will, in all probability, cause substantial additional capital funds expenditures. This project, along with the Linwood Early Childhood Center (which also is delayed due to asbestos issues), again raises concern regarding the process utilized for management of capital projects.
The Desegregation Subcommittee continues to meet with the KCMSD and discuss steps taken to ensure quality service for the monies provided for capital improvements. The Desegregation Subcommittee intends to intensify its monitoring efforts in this regard, particularly since it anticipates that KCMSD will present the Court with a new filing relative to the long-range Capital Improvement plan and the impending expiration of the original Project Management Team (PMT) contract.
The Desegregation Subcommittee will also continue its monitoring of budget overruns and will work with KCMSD to refine reporting mechanisms on cost overruns and other CIP reports for the benefit of all involved parties in the coming year.

School

CIP BUDGET OVERRUNS

Ordered CIP Budget Anticipated Over CIP % Over CIP

Budget Allocation

Costs Budget

Budget

Paseo Middle

5,605,163

Southeast Annex

899,973

Southwest High

9,451,793

Paseo/Shared Facility

16,707,339

East High

7,496,505

Southeast High

6,849,930

Van Horn

6,559,681

Westport Middle

5,327,597

Westport High

7,556,023

Source: KCMSD/CIP Budget Projection Report, July 9, 1993

5,605,163 899,973
9,451,793 16,639,625
7,496,505 6,849,930 6,559,681 5,327,597 7,556,023

6,447,087 1,048,664 11,317,455 20,033,791 8,383,143 8,630,535 7,518,233 6,644,924 8,656,251

841,924 148,691 1,865,662 3,394,166 886,638 1,780,605 958,552 1,317,327 1,100,228

15.0 16.5 19.7 20.4 11.8 26.0 14.6 24.7 14.8

10

MAINTENANCE
The Desegregation and Budget Subcommittees (BSC) have worked closely to address the DMC's concerns regarding KCMSD's ability to maintain new and remodeled facilities. The BSC has moved to actively track dollars and promised savings since KCMSD contracted with a private maintenance management company. The Desegregation Subcommittee has and will continue to monitor the quality of maintenance service in the district. However, the subcommittee must report to the Court that KCMSD, during 1992-93, has not been responsive or cooperative in issues raised by the subcommittee. This was demonstrated in September 1993 when the Desegregation Subcommittee raised the issue of pest infestations in KCMSD schools based on detailed information. KCMSD personnel denied any such problems. Several months later, subcommittee information proved to be accurate when the KCMSD was forced to endure what could be termed as a media circus surrounding the issue. KCMSD's explanation for not responding to the subcommittee's earlier warnings was that persons representing the KCMSD before the DMC were not aware of the problem at the time, although KCMSD acknowledged that other personnel were aware of the issue. This instance depicts two significant problems with the KCMSD and its implementation of the Court's plan: (1) KCMSD is not forthcoming with the DMC, and (2) communication within the KCMSD is fraught with difficulties that escalate manageable problems into unnecessary impediments to the desegregation effort. Granted, the KCMSD is subject to such great scrutiny that it receives a certain amount of what may be deemed unfair press; however, at times, the KCMSD places itself in positions that easily invite such treatment.
The Budget and Desegregation Subcommittees will continue to monitor maintenance functions to see that KCMSD moves toward a cost efficient and effective maintenance plan.
TRANSPORTATION
Transportation service has continued to improve this year. The Alternative Transportation Program (ATP) system initiated this fall appears to be service oriented. At one point in the year, however, KCMSD took children off the more economical bus transportation and placed them in ATP vehicles. The Budget and Desegregation Subcommittees questioned the cost effectiveness of this measure and recommended a resolution which would limit the number of vehicles KCMSD could procure without DMC approval. The subcommittee however will afford KCMSD flexibility in this area as is warranted and justified.
The Budget and Desegregation Subcommittees continue to press for a cost effective and service oriented transportation system, and persons with immediate supervision over transportation have worked with the subcommittees toward this end. A plan was developed by the Transportation Department to change bell times at 16
11

schools to effectuate significant cost savings. Initially, KCMSD administration expressed reservations about proceeding with such changes; however, it ultimately initiated the changes.
The subcommittees are obliged to note that since experienced, competent personnel have been placed in the Transportation Division, marked improvement has occurred. It is hoped that transportation will continue to move forward with refining cost and service.
MIDDLE SCHOOLS
In assessing whether desegregation is occurring in the KCMSD, one cannot avoid taking a long look at what may be an obstacle to sustained success – KCMSD's middle schools. The quality of KCMSD's middle schools has been of increasing concern to the DMC, parents, students, and the community. It is clear that the middle schools are in a crisis stage and present a major impediment to desegregation in Kansas City. Even the KCMSD has acknowledged, through its proposed restructuring of them, that there exists a problem with the majority of its middle schools. It is noted that KCMSD has presented a proposal for reform of the middle schools which in and of itself is positive. However, having failed to recognize or acknowledge the importance of a bottom up process, the middle school proposal again lacks any parental involvement, perpetuates some aspects of unsuccessful programs, carries the possibility of resegregation on a classroom basis by tracking students, and does not ensure that site level administration and teachers will receive adequate preparation and assistance to successfully implement change. As the Court is aware, the DMC did not reject KCMSD's middle school proposals, but asked that concerns, including those listed here, be addressed.
Desegregative Attractiveness
Data reflect that the overall perception of students, parents, and the community is that KCMSD's middle schools are not good, as evidenced by students being withdrawn in the latter years of elementary school within the District.
A number of indicators support the belief that KCMSD's middle schools are not desegregatively attractive. This is clearly discernible by reviewing non-minority retention, recruitment, first choice request, academic achievement, and attendance.
Non-Minority Retention and Withdrawals
When considering non-minority retention, the numbers reflect a significant decrease in retention when comparing elementary and middle schools. Overall, total enrollment indicates that percentages of returning students decrease substantially after elementary school and rebound only slightly, in some instances, after middle school.
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KCMSD Non-Minorities Retained From September 25, 1991 to September 30, 1992

ELEMENTARY

MIDDLE

HIGH

Total Non-Minority Non Sir. Non-Minority Total SIP Private Suburban

77.8% 79.1% 70.4% 79.8% 68.0%

66.6% 69.2% 49.8% 69.4% 41.4%

69.3% 69.4% 68.7% 75.3% 66.2%

*Suburban/Private Source: KCMSD's Non-Minority Retention Report 1991-92 to 1992-93, December 15, 1992

Decrease in retention is not restricted to one group; all non-minority percentages drop significantly after the elementary level. Further, middle school percentages are drastically low in the Private and Suburban totals (a decline of 20.6 percentage points). Even though the retention rate increases at the high school level (18.9 percentage points for Private and Suburban students), they are still significantly below the elementary rate. The data strongly indicate that the problem is most serious at the middle school level, where parents and students, particularly from the Suburban and Private group, appear to be less inclined to be supportive of the KCMSD.

First Choice Request

All incoming 6th graders are required to submit an application to be placed in a KCMSD middle school. Reports from students and faculty, along with KCMSD data, reflect that for a variety of reasons a substantial number of students are not being placed in their program of choice.
Report of Middle School Applications and Enrollment by Student Choice

Grade 6 Grade 7 Grade 8
Total

Enrolled 1992-93

MIN NON TOT

2,031 2,029 1,970 6,030

728 589 541 1,858

2,759 2,618 2,511 7,888

Applied

MIN NON TOT

1,976 605 605
3,186

705 258 200 1,163

2,681 863 805
4,349

In 1st Choice

MIN NON TOT

1,090 138 138
1,366

513 1,603 115 253 103 241 731 2,097

In Other Choice

MIN NON TOT

562 102 664

42

15

57

38

9

47

642 126 768

No Application

No Choice*

MIN NON TOT

MIN NON TOT

Grade 6

55

23

78

324

90 414

Grade 7

1,424 331 1,755

425 128 553

Grade 8

1,365 341 1,706

429

88 517

Total

2,844 695 3,539

1,178 306 1,484

Source: KCMSD's Report of Middle School Applications & Enrollment by Student Choice, May 19, 1993 • "No Choice" refers to students in alternative schools, special education and other assignments which do not require the standard
'ull-choice" application.

13

Of sixth grade students, only 54% of minorities received their first choice and, 71% of non-minorities. In total, a little more than half (58%) of all 6th grade students enrolled, received their first choice theme.
This low number of first choice placements may also play an important role in issues relating to discipline. When students are not placed in their school of choice, the possibility of refusal to participate in the theme is greater. Teachers have reported that students need to be greatly motivated in order to excel and, if they do not "buy into" the theme, their disinterest can develop into increased disruptions in classes, poor attendance, and poor academic achievement.
Academic Achievement
In June of 1993, the State Department of Elementary and Secondary Education conducted an assessment of the KCMSD under the new assessment procedures of the State Board of Education. As a result of the review, KCMSD was given only provisional accreditation. The report and resulting provisional accreditation summarize many shortcomings within the KCMSD, ranging from failure to have properly certified persons in appropriate positions, to instructional deficiencies which demonstrate the unclear guidelines and implementation policies within KCMSD and which, in turn, may contribute to continued low achievement levels. Correspondingly, this lack of improved achievement most probably contributes to the poor desegregative attractiveness of KCMSD schools, most particularly at the middle school level.
The DMC has previously cited similar shortcomings as those enumerated in the State Board of Education's MSIP report in its past meetings with the parties, public and Court. The MSIP report only reconfirms long held beliefs that KCMSD is not accomplishing what it should with the considerable financial support it has received. Furthermore, while some improvements have been made within the District, middle school academic achievement has not been one. In fact, middle school achievement scores fall substantially below national norms and, in most instances, even large city norms.
The MSIP report affirms that the decline in student achievement levels was most significant in grades 6 through 12. Although the decline begins at the elementary levels, (mainly, at the third grade), as students advance from grade to grade, achievement of students begins to drop measurably, especially at the middle school level. This trend is not reversed as students move through grades 9 through 12. While large city achievement norms increase slightly from grades one through eight (1 % in reading), the KCMSD has experienced a "decline" in this area by eight percentile points. This trend is also apparent in the other subject areas tested in 1993 (e.g. language, math, social studies, and science). Furthermore, KCMSD scores significantly drop after the 5th grade, while Large City Norms either improved (see Language, Math, and Science) or remained constant for both 5th and 6th grades.
14

1993 Iowa Test of Basic Skills & Test of Achievement Proficiency by Percentile

(National Norm in 50)

GRADES 1 - 12

Grade

Reading

Language

Math

Social

Science

District I Large City District I Large City District I Large City _ District I Large City District I Large City

1

45

35

65

34

64

35

73

32

56

30

2

47

36

60

32

61

38

66

33

55

33

3

41

35

59

35

51

39

52

36

50

36

4

37

37

50

37

43

40

52

35

53

36

6

••

•

A . s!?.

• . "4.?:

9

31

40

36

39

23

39

30

37

10

32

41

39

40

22

42

34

40

37

39

11

36

42

42

42

34

45

37

43

39

41

12

35

42

39

45

36

47

35

46

39

43

Source: Kansas City 33 School District School Improvement Review (MSIP), Page 83,85,86, May 17,1993 and, 1993 Kansas City, Missouri School District Achievement Test Results, July 27, 1993

The KCMSD 6th through 8th grade ITBS scores in Reading changed relatively little from 1992 to 1993. Sixth graders showed a slight improvement of .2 (two months), 7th grade scores showed no improvement from last year, while 8th grade scores declined by .2. Overall, KCMSD's scores were below national norms by .8 (eight months) for 1993.

For the remaining subject areas, achievement outcomes for middle schools were minimal or constant from 1992 to 1993 at the 6th grade level, and outcomes slightly declined or remained constant at the 7th and 8th grade levels in math, language arts, social studies, and science:

1992-93 Iowa Test of Basic Skills - Grades 6 - 8

GRADE Year:

READING LANGUAGE

MATH

'92 '93 '92 '93 '92 '93

SOCIAL STUDIES
'92 '93

SCIENCE '92 '93

6th/District 5.8 6.0 6.3 6.2 6.1 6.2 6.3 6.3 6.3 6.3

National . 6.8 6.8

6.8

7th/District 7.0 7.0 7.3 7.2 7.0 6.9 6.9 6.5 7.6 7.6

„National

7.8

7.8 7.8

8th/District 8.2 8.0 8.3 8.2 7.8 7.7 7.7 7.7 8.4 8.4

National 8.8 8.8

8.7 8.7 8.7

8.7

Source: 1992 Kansas City, Missouri School District Achievement Test Results, July 10, 1992 1993 Kansas City, Missouri School District Achievement Test Results, July 27, 1993

15

When examining 1993 middle school ITBS scores of black and white KCMSD students, the results are not positive for the plaintiff class. In all subjects tested, black students fall behind white students by one year or more in most instances. The disparity between the two groups is most evident when analyzing the social studies and_ science scores. Of these two subject areas, science scores demonstrate the largest variance between black and white students; the 6th grade science scores differ by 1.7 (Black = 5.9 and White = 7.6), the 7th grade by 2.7 (Black = 7.0 and White = 9.7), and 8th grade by 2.2 (Black = 7.9 and White = 10.1). These scores are particularly disturbing considering that the three middles schools with Math/Science themes are
heavily minority, for 1992-93 Bingham was 87.0% minority, Southeast 96.5% and/ Lincoln Middle 75.6%.2

1993 COMPARISON OF BLACK AND WHITE STUDENT ITBS SCORES

6TH

7TH

8TH

11 10
9
8 7 6
5
R L MSS S

B
0 w

11
10
9
8
7
6
5
R L MSS S

11 10
9 8 7 6 5
R L MSS S

A B 0 w

R = READING

L = LANGUAGE

M = MATH

SS = SOCIAL STUDIES

S = SCIENCE

Source: 1993 Student Achievement by School, Grade, and Racial/Ethnic Code, KCMSD, August 9, 1993 (ITBS scores for individual middle schools and the corresponding ethnic breakdown are contained in Appendix A)

Attendance

Academic achievement levels cannot be enhanced by the low attendance rates in the KCMSD's middle schools. Average attendance for 1992 was 85.3% 3 (the 1993 average has not been made available by KCMSD as of this writing). The DMC gathered information from site-based personnel during 1993 which reflects that KCMSD's attendance policies and procedures are not clear. In prior years, most middle schools had an individual who responded to absenteeism issues. These positions were provided by the Juvenile Court System. This school year, the program was eliminated and teachers have had to more or less create their own attendance policies, which include calls/letters to homes and questioning of friends to determine a student's whereabouts; however, there is seldom any follow-up beyond that. Although, one middle school has maintained a Home School Coordinator (an aspect built into their Site-Plan) who deals with absenteeism and related problems, there certainly is not a systematic or comprehensive plan to deal with attendance. Faculty at a majority of the middle schools have complained that efforts at improved attendance have been poor and the attendance office at schools are little more than data-gatherers.

16

Climate
School climate appears to be a most significant problem in KCMSD's middle schools. Lack of consistent disciplinary policy, a comprehensive security plan, and racial sensitivity have been identified by site-based personnel and patrons as major factors contributing to low school morale and poor instructional climate.
Discipline
Students, faculty, and administration at each middle school within the District, have strongly indicated to DMC members and staff the belief that a more consistent disciplinary policy must be structured and enforced by the District, so that schools can create an environment conducive to learning.
Some faculty report that disciplinary issues are not being handled properly, nor according to the policies set forth in the District Student Code of Conduct Handbook or Student Behavior Handbooks developed by site-based administration. Some staff and students have indicated that reprimands for infractions are not consistent in that one student will be punished for inappropriate behavior, while another is not reprimanded for the same offense. Many teachers have expressed that the message sent to students by inconsistent policies, is that disruptive behavior is acceptable and not worthy of reprimand; thus, students continue to display inappropriate behavior and disrupt without fear of consequences.
Some administrators, on the other hand, indicate that while there are problems — with discipline, some teachers need to develop better "classroom management skills." They further explain that teachers excessively rely on sending students to the office, causing administrators to handle classroom problems that should be within the teacher's capability. It is noted that of the 19 schools cited in the MSIP Report for "generally positive school discipline and good order," none were middle schools. (It is noted that Lincoln College Preparatory was positively cited; however, due to its unique characteristic as a 6th through 12th grade program it has not been considered a "middle school" for purposes of this report.) Conversely, of the 16 schools cited as "generally having poor school discipline and substantial disruptive behavior," five were middle schools.' Additionally, AFT (American Federation of Teachers) representatives have brought the issue of discipline, particularly at the middle school level, before the DMC on several occasions this year. The AFTs repeated concerns, coupled with site-based anecdotal information and the MSIP report, leave little question that discipline continues to threaten the instructional climate of the middle schools. It is clear that some intervention is required from KCMSD in terms of solidifying a disciplinary policy and training teachers to better handle discipline within their classrooms.
KCMSD repeatedly asserts that it faces problems similar to other large urban school districts. There is no dispute that KCMSD's schools are a reflection of the larger
17

society, however, other large urban school districts have not had access to one billion dollars for 36,000 students and eight years to devote to school reforms and innovations.

Many faculty members at KCMSD's middle schools reported that the District has applied pressure on school administrators to not suspend students. The District has denied this accusation, but admits that it does encourage school administrators to find alternative methods to deal with problem students, other then suspension. KCMSD has not demonstrated that site-based personnel have been given any assistance or guidance in crafting or implementing such alternatives.

In the face of increasing documentation and concerns about disciplinary problems in schools, it is somewhat perplexing that KCMSD's suspension rates demonstrate astonishing declines for the first semester of the 1992-93 school year. KCMSD's data for Out of School Suspensions (OSS) have shown a decline for middle schools over the past four years, with a drastic drop in the first semester 1992-93 figures. Nevertheless, middle school rates remain higher than high school rates. Middle school rates on Central Office Suspensions (COS), though, have remained relatively stable over the past four years, with only a slight decrease in the first semester of the 1992-93 school year (from 1.5% to 1.4%), and a more substantial decline for high schools (from 1.5% to 1.0%).5

Disputes over fairness in the administration of disciplinary actions by race and gender have also surfaced in interviews with students. Expulsion rates tend to support the view that minorities are disciplined more frequently considering that in 1990-91, 100% of expulsions were minority males and, in 1991-92, 84.6% of all suspensions involved minorities, while 76.9% of suspensions were male. 6 (Expulsion rates for 1992-93 have not been provided by KCMSD as of this writing.)

Of the total number of OSS for middle schools in the first semester of 1992-93, 80.9% were minority where the average minority population of middle schools was 76.9%.
1993 Middle Schools First Semester Out of School Suspensions for Minorities

SCHOOL*

Total OSS

Minority OSS

% Minority OSS

Minority %

Bingham

110

104

94.6%

87.0%

Central

59

52

88.1%

79.1%

KCMSA

53

40

75.5%

62.4%

King

58

46

79.3%

72.0%

Lincoln

135

110

81.5%

75.6%

Northeast

173

99

57.2%

67.3%

Nowlin

154

110

71.4%

64.1%

Robeson

99

87

87.9%

86.2%

Rogers

52

32

61.5%

65.3%

Southeast

130

126

96.9%

96.5%

Westport

243

218

89.7%

90.7%

TOTALS:

1,266

1,024

'-....80.9%

..'.76.0%

'Lincoln College Preparatory Academy is not included in these figures due to its unique characteristic as a 8 through 12 grade student population.

Source: KCMSD's Analysis of Suspension Data by Race and Gender, Middle School Students, June 17, 1993

18

Teachers report a number of reasons for class disruptions and disciplinary problems. One of the most commonly cited (besides those reasons based on non-choice placement previously mentioned) is the KCMSD's waiver policy, whereby students can advance from one grade level to the next even if the student has failed his or her classes. At the parents' discretion, KCMSD allows students to advance without acquiring skills necessary for success at the next level. Teachers report that this may contribute to the frustration and boredom displayed by some students and can often result in the common or frequent disruptions noted in disciplinary reports.
Security
When some middle school students were asked in surveys conducted by KCMSD's Evaluation Office if they felt safe at the school, responses indicated that in four of the six schools surveyed, more than half of the respondents did not feel safe in the school.
Student Survey 91-92 "I feel safe at (school)...?"

School

Year

YES

NO

Paul Robeson Northeast
Martin Luther King Nowlin
Westport Rogers

'92 '91 '92 '92 '92 '92 '91-92

47% 33% 25% 30% 55%
61 % 32%

54%
67% 75%
70% 45% 39%
68%

Source: KCMSD's Formative Evaluation of the Middle Schools, Evaluation Office, 1991-92

With the increase in concern about disciplinary matters mentioned in interviews, staff and students alike believe there is a need for more security guards at the middle school level. However, it is unclear what functions security guards actually have and, if the request for more is only another means of alleviating problems associated with a poor disciplinary policy. In some schools, security guards view their position as only one of securing the building, while others have taken on the responsibility of monitoring student behavior. Furthermore, some faculty have complained that the distribution of security guards is unbalanced and not based on physical size of the building or the number of students in attendance. KCMSD has been unresponsive in developing a comprehensive security plan. In 1992, the DMC declined to take action on the security component of the KCMSD's budget proposals until such a plan was developed.

KCMSD, again in 1993, requested increased security personnel with no comprehensive plan or assessment of the success of existing security operations. On June 17, 1992 the DMC took exception to the use of desegregation dollars for increased security personnel requested in KCMSD's Milliken II budget proposal for FY1993-95.
Human Relations
The KCMSD does not have a fully staffed human relations division, nor an identifiable budget for human relations. Instead, it has placed undue reliance on a Conflict Resolution Program for which no assessment has yet been provided. When one magnet school experienced race and class conflict in 91-92, the KCMSD gave assurances to the DMC that a human relations component was being developed and would be supported by the Superintendent. KCMSD chose to include a human relations component in the LRMP Renewal, but has not come forth with an alternative for a fully staffed human relations element since the Court rejected the Renewal in April of this year; although KCMSD has pursued other programs rejected in the LRMP Renewal. In 1992-93, the DMC saw an increase in the number of complaints by patron and site-based personnel regarding racial issues. Again in 92-93 a magnet school was the subject of public debate due to allegations of disparate treatment of students._ Moreover, there was still no indication that KCMSD had any process in place to effectively address student, staff, or community concerns in this regard. Although this issue was initially investigated by the Desegregation Subcommittee, the matter became so sensitive and divisive for students and patrons that the DMC formed a special committee to consider it. The Desegregation Subcommittee had hoped that this magnet school would be encouraged to improve under new leadership in 1993-94 and move beyond its past disturbing experiences; however, the KCMSD has determined that no such change will take place.
Conclusion
Based on the aforementioned, it is glaringly apparent that the KCMSD must form and adhere to a more stringent District and School disciplinary policy; especially at the middle school level. Furthermore, KCMSD should carefully analyze the impact of its waiver policy on academic achievement and desegregative attractiveness. And most importantly, the KCMSD and all involved with the KCMSD must continue to pursue improving the middle schools in a manner which complies with the tenets of the desegregation orders.
20

Recommendations
The Desegregation Subcommittee has reviewed the recommendations made in last year's Report to the Court and of the seven recommendations, progress has been made only in terms of the development of a transportation plan which incorporates both quality service and cost efficiency. The Subcommittee will therefore repeat the recommendations made last year, as they are even more vital now. Further, an additional recommendation will be made relative to the status of the middle schools.
1. That reliable non-minority retention and withdrawal data be collected and analyzed by the KCMSD to assist in the implementation of procedures to maintain non-minority enrollment.
2. That the KCMSD develop a comprehensive security plan which addresses the needs at the site level, based on bottom-up input, to address the issue of safety at KCMSD facilities.
3. That the KCMSD develop a proactive human relations plan demonstrative of diversity and a commitment to desegregate the KCMSD.
4. That the KCMSD put forth greater efforts to facilitate a cooperative relationship between governmental agencies involved in the capital improvement process.
5. That the KCMSD develop a plan to provide greater oversight of PMT activities and the quality of workmanship in CIP projects.
6. That the KCMSD develop a more comprehensive marketing, recruitment and retention plan to ensure that recruitment goals result in actual continuing non-minority enrollment in the magnet schools.
7 That the KCMSD focus on ensuring that a viable and inclusive restructuring plan with adequate implementation and evaluation components be pursued for the middle schools, with emphasis on improving learning environments and increasing academic achievement levels, while at the same time recognizing the importance of a bottom up process and adhering to the letter and spirit of the court orders.
1 Letter to Dr. Eugene Eubanks from KCMSD, dated June 2, 1993 2 KCMSD January 27, 1993 Student Census Count 3 KCMSD's Schools Profiles, 1991-92 4 Kansas City 33 School District Missouri School Improvement Review (MSIP), Page 42, May 17, 1993 5 KCMSD's Analysis of Suspension Data by Race and Gender, Middle School Students, June 17, 1993
KCMSD's Defendant's LRMPR Hearing, Exhibit 32: A Comparison of Magnet and Traditional Suspension Rates 6 KCMSD's Middle School Expulsion Report, 1990-91 and 1991-92
21

EDUCATION SUBCOMMITTEE REPORT TO THE COURT FOR YEAR VIII
The major thrust of the Education Subcommittee's activities in the first part of the 1992-93 monitoring year involved close review of the process by which the District arrived at its proposed LRMP renewal and the actual content of the several components of the plan.
During the second part of the year, the Education Subcommittee gave its attention to the District's response to the Court's action on the KCMSD's renewal plan.
Throughout the year, members of the subcommittee continued conducting visits to schools to gain first-hand knowledge of the realities in the classroom.
RENEWAL PROCESS
At the outset, the instructional division of the KCMSD attempted to generate data on the achievement changes at each school as an aggregate of changes evidenced on a student-by-student basis. In addition, progress in each school's attainment of desegregation goals was recorded. Schools with similar magnet themes could be compared and contrasted with schools with other magnet themes. While the attempt was a reasonable basis for beginning the discussion on renewal, raw results from these compilations had to be adjusted for a number of non-quantifiable factors. Schools had experienced changes in leadership, teaching staff, program, physical plant, location, amount and type of equipment, student body, and educational system, all at different rates and for different lengths of time. This, of course, is only to say that the period of the LRMP's implementation being evaluated was the period of start-up for the magnet programs, the transportation and purchasing systems for this mammoth effort, as well as the period of maximum physical' reconstruction of the schools under the court orders.
As a result, progress charts for each magnet school, as calculated from achievement numbers, had to be adjusted for the non-quantifiable variables listed above. In fact, the district chose to give a numerical valence to each adjustment factor, based on the intuition of the members of the evaluation team. Therefore, the evidence presented to the Education Subcommittee included heavily subjective components.
The most successful magnet schools in terms of achievement and desegregation were the 1986-87 elementary magnet clusters; the Southwest cluster, and Swinney-Volker. It's worth noting that certain traditional elementary schools were in the same league of achievement as the successful magnet elementary schools mentioned above. The language magnets have also begun to show increasingly high levels of achievement, as predicted after a period of student involvement in the theme.

The chief ingredient in the success of a school will be a coherent and solidly supported educational plan and instructional delivery system. If the community supporting a school from the principal, the teachers, and the parents can enthusiastically take ownership and control of an educational idea, the school will have traveled a long way down the road to achieving success. Material, methods and teachers, which touch students and make a difference to them in their present lives can effect this in a variety of educational setting and configurations only if the school community understands and participates in them. The key is ownership.
The KCMSD came forward with a wide variety of educational configurations and delivery systems which have had some success elsewhere and could each possibly have a chance of success with some portion of our population here. However, as the Education Subcommittee heard the District's presentations on ownership and implementation, it became clear that the instructional establishment of the KCMSD, while fascinated by the possibilities of these disparate delivery modes, was less clear on how it was to create a climate of acceptance and participation at the school level. While successful innovation requires deep knowledge and commitment on the part of those attempting to implement change, the District was moving in the direction of a top-down approach, imposing yet another set of educational novelties on a system already struggling with implementation of the most ambitious magnet plan in the history of desegregation. The written and oral explanations of specific contents and approaches to staff development and other aspects of implementation were less than satisfactory.
Further, the energy and resources required to implement what amounts to a considerable change in educational emphasis would have drained the present magnet school structures. In several instances the proposals included reduction in the budgets of successful magnet schools to provide resources for new, untried ventures.
The Education Subcommittee could not support the KCMSD's request to "build upon," alter or initiate a number of educational modalities as part of the renewal process.
Again, the Education Subcommittee was interested in the District's pursuing newer models based on a variety of delivery systems; however, the Education Subcommittee hoped for a clearer sense of school level participation in the selection and implementation of the systems devised. The Education Subcommittee was also looking for more clearly developed ideas for implementation of new "themes." The success, or lack of success, of the KCMSD in implementing new magnet themes under the existing LRMP was a key factor in coming to this opinion.
23

TASK FORCES
The original LRMP included strong provisions for community participation through the mechanism of community task force. Ideally, these were to represent parents, educators, and interested parties from across the district who had interest in working for the establishment and implementation of quality schools.
The results in the real world have been mixed. Previous reports of the Education Subcommittee have mentioned both successes and failures of the system. The open nature of participation exposes a task force to a membership which might be well intentioned but may also allow non-educational factors to surface in the process and agendas pursued may sometimes have little to do with the thrusts of the court orders. Support for, and ownership of the school and its program is necessary for success. Task forces need to grow out of the true community supporting a building and the work of the task forces needs to be taken seriously.
STAFF DEVELOPMENT
Evaluations of the effectiveness of the staff development component of the LRMP conclude that this was one of the aspects of the plan most needing revision. The provisions of the LRMP which mandated required times and compensations could not at the same time mandate uniformly high quality in the delivery of the staff development exercises. Those parts of the program which experienced the widest variations in quality were the ones developed at the school level where the leadership was not up to the task. The District provided staff development component was generally of a higher quality. The latter, however, did not address particular needs of schools or individual teachers. This was especially true for the more experienced and expert teachers, of which there is an abundance in the district.
Another aspect of increasing the level of performance of the teacher corp of the KCMSD is through measures which reward and retain the many excellent teachers in the district, and continue recruitment of the highest quality teachers and administrators available. It is also necessary to help those who wish to retire or who would be more ,suited to other careers leave the classroom. The maintenance of educational performance at a high enough level to achieve the Court's intentions might well require the implementation of an early retirement plan. The District, in cooperation with the bargaining unit, has begun examining and revising the procedures by which tenured and non-tenured teaching personnel are evaluated and those evaluations acted upon. The Education Subcommittee followed and encouraged the process by which these evaluations and processes could be made more efficient without loss of the due process any employee has a right to expect. The Education Subcommittee strongly recommends that the relevant parties continue pursuit of the goal of making the evaluation and termination process as rational and efficient as possible.
24

SUSPENSION AND CLIMATE
During this school year, the KCMSD has attempted to address the issue of school climate, behavior and suspension rates. The administration has issued directives to principals that alternative methods need to be found to deal with behavior which disrupts normal teaching-learning activities in the classroom.
The best intention of administrators is to increase the range of responses to disruptive behavior and keep students in a learning environment rather than to separate them and alienate them from schools. The added effect of the decrease-suspension directive is that the statistics on suspension show an improvement in school-educational climate, regardless of what is really happening in the classrooms. Reports made to the Education Subcommittee indicate that teachers perceive an increasingly difficult situation in their classroom, perhaps of lower seriousness than the type incidents reported by the Security personnel, but disruptive to learning nonetheless.
In some cases, this has led to teachers and administrators finding creative approaches to individual behavior problems. In other cases, principals are simply telling teachers to deal with the problems as best they can. The result is that teachers are frequently thrown back on their own resources without adequate support which both compromise the climate of learning, stress teachers to the point of desiring transfer out of the district, and deny the student the opportunity to learn.
The long-term solution is to make the classroom relevant to the life of every child. Intervention programs can do much to increase the success rate with the range of students who have elected to drop out of the system in a variety of ways.
A number of intervention programs in the past at the middle school level have proven to be successful in rapidly raising the preconditions for achievement (attendance, time on task, better classroom climate, a more positive attitude toward the educational enterprise), and academic achievement itself as measured on standardized tests.
The School-Within-A-School program (SWAS) contained many of the components of intervention programs now in effect and is being further proposed by the administration. Small student/teacher ratio, mentoring, and close team teaching are among these components. The externally supported programs now in effect at a few middle schools, as well as the school-based pilot projects along these lines, reinforce the idea that intervention programs make a difference throughout a school and with particular students.
The District's more radical intervention program, "High School Prep," attempts to take students who would be significantly older than their classmates if placed by the usual criteria, and move them rapidly through several grades of achievement in a oneor two-year period. The notion is to take overaged fifth graders, place them in a special
25

school, High School Prep, and mainstream them after they have achieved at a level appropriate to their age group.
This program has experienced some success in raising both the preconditions to achievement. However, the method of testing at the school has been adjusted to the entering achievement level of the students, and so direct comparisons are ambiguous. High levels of para-educational services such as counseling and home-school coordination have made this type of program relatively expensive. As of this writing, there is insufficient data available to fully evaluate the effectiveness of the program.
The KCMSD needs to continue to assist all teachers in developing attitudes and techniques of classroom management which keep students in the classroom. At the same time finding appropriate delivery systems for students for which traditional schools fail, and placing students whose needs can be met in those programs, needs to be pursued.
EQUIPMENT AND PHYSICAL PLANT
At this point the KCMSD has one of the best equipped and attractive physical plants in which to conduct education in the area. Schools have recently come on line which are state-of-the-art; many are still unpacking and installing equipment purchased under the court orders. However, the attractiveness and abundant equipment of the magnet schools contrasted with the meager situation in the non-magnet elementary schools and those unrenovated "annex" buildings, which have been pressed into service for overflow from the magnet programs, create a system of "haves" and "have nots." The traditional schools and the overflow "annexes" often serve the most vulnerable portion of the District's school population. While many parents elect traditional elementaries as the first choice for their children, many more children are placed there by default.
EFFECTIVE SCHOOLS AND GRANT PROGRAM
The Effective Schools program has been a vehicle for providing all schools, magnet and non-magnet, with resources to support school-based instructional plans. In fact, the Effective Schools program has been one of the few sources by which non-magnet elementaries have been able to keep from falling even further behind in the delivery of their educational program.
The Grant program component of the Effective Schools program completed its first cycle this year. Innovation and creativity were rewarded under the Grant program. However, the point of the court orders is not to reward innovation and creativity per se, but to raise the educational level of children whose chances have been impaired by
26

segregation. Many of these children still attend school in racial isolation, and with comparatively meager resources.
The grant writing process also causes a drain on the resources of even the most resource-rich schools: resources rich in the sense of having personnel with grant writing experience available. There is a natural aversion to putting in the effort required to develop a "regular' Effective Schools program and also to take the time and put in the energy to write a grant proposal which has only a chance of being accepted.
The overlay of the grant process on top of the "regular" Effective Schools process adds layers of complexity in developing and administering a coherent school instructional program. The educational system of the KCMSD is already quite complex, as has been noted by outside evaluators. It's possible that as many schools approach saturation in the wise expenditure of Effective Schools resources, that the bulk of the funding be turned to support needs of the underfunded non-magnet schools, intervention programs and staff development efforts in their several forms.
PERSONNEL ACTIONS
The Education Subcommittee, in conjunction with the Personnel Subcommittee, was active in reviewing the qualifications and the process of hiring district personnel involved in the desegregation effort. The review was limited to the level of principal and higher.
The Education Subcommittee also monitored the portfolio process for ensuring theme knowledge for all instructional and administrative personnel in magnet schools. The exercise of each person taking stock of where he or she stood with respect to knowledge and commitment to the magnet theme was useful in that it reinforced the idea that the integrity of theme in magnet schools was not to be taken casually. The reality of the types of theme involvement ranged from the deep to the stretched and casual. The exercise also confirmed the flexibility and reasonable approach taken by the Education Subcommittee in reviewing and interpreting the range of academic and extracurricular involvement in magnet themes.
There is, nevertheless, a certain monotony with which successive administrators bump up against and try to get around the idea that magnet school need staffs with some level of commitment to the theme. Even given the range and flexibility with which the DMC deals with theme background, the administration chose to place vice-principals, with no theme background, in magnet schools. Moreover, the administration passed over and removed from magnet schools administrators who had prepared themselves in the theme in favor of individuals who had not. The DMC acted and the Court supported the magnet theme requirement for administrative and teaching personnel at a building.
27

MIDDLE SCHOOLS

The administration has come forward with a proposal for a pilot program for three middle schools. Under this program, the student body and teachers will be divided into three "houses," each representing a different educational delivery system. This proposal does represent an attempt to address what all observers perceive to be an acute need: the reform of the middle schools. The schools selected varied in their readiness to move ahead with the proposal, and the DMC requested that KCMSD demonstrate a comfortable level of readiness on the part of school administrators, teachers, students, and parents, as well as ensure proper teacher training, student placement, and implementation procedures prior to initiating the reforms. The KCMSD was encouraged by the Education Subcommittee to seek to move ahead where appropriate, although KCMSD chose not to do so. Certainly, however, the effort at improving the middle schools needs to be continued by all involved.

SUMMER SCHOOL

Summer school 1992 was not significantly different from a programmatic view. The distinction between enrichment and remediation was again blurred and desegregative attractiveness of the program lacking. Recruitment, however, was turned over to the Marketing and Recruitment Office. It remains clear that revision of the program is needed. The DMC looks forward to valid improvements in this program which, if properly developed, could assist in improving achievement and attracting non-minority students.

ACADEMIC ACHIEVEMENT

KCMSD's standardized test scores for 1992-93 once again show minimal or no improvement. Even after repeated statements of concern by the DMC in past year-end reports to the Court, the KCMSD continues on a path that fails to adequately address the issue of low academic achievement levels. Although the District has met some incremental success at the elementary level over the past eight years of the desegregation plan, the secondary level scores remain disappointingly low.

The KCMSD's overall performance in reading and math reflects the serious need for attention to academic achievement. All other areas tested follow the same pattern as the results found in reading and math.

KCMSD tested below national norms in every grade level in reading and

increases over 1991-92 scores only occurred randomly in grades 6th and 11th;

otherwise, scores remained constant or slightly decreased. Comparison of large city

norms to KCMSD also provides little positive information considering that KCMSD

scores remain higher only until the third grade where they begin to level off and then

drop below large city norms from 4th through 12th grade, with the exception of a slight

increase in KCMSD's 5th and 8th grade scores.

_j

28

1989 - 1993 IOWA TEST OF BASIC SKILLS K -12 READING

GRADE

SCHOOL YEAR

NATIONAL LARGE CITY

NORM

NORM

1989 1990 1991 1992 1993

1993

1993

K

79

79

N/A

N/A

N/A

1

45

49

49

49

45

2

40

47

43

47

47

50

50

50

35

50

36

3

35

38

39

41

41

4

37

35

37

37

37

50

35

50

37

5

39

39

38

41

41

50

38

6

29

33

30

30

34

7

38

38

38

36

38

8

40

42

40

40

37

. 50

38

50

38

50

38

1

26

33

33

31

31

10

34

32

33

33

32

50

40

50

41

11

33

33

33

33

38

12

32

31

35

39

35

50

42

50

42

Source: 1993 Kansas City, Missouri School District Achievement Test Results, July 27, 1993

KCIV1SD scored below national norms in most grades tested in math. Only K-3 scores were above national norms; however, there was little improvement from 1992 to 1993 in K-3 scores (K and 1st grade remained constant, 2nd grade dropped 5%, and 3rd grade improved 4%). After 3rd grade, scores begin to drop below national norms. When compared to large city norms, scores begin to drop below that norm at the 6th grade level and continue through the 12th grade.

1989 - 1993 IOWA TEST OF BASIC SKILLS K - 12 MATH

GRADE 1989

K

64

i

59

2

57

3

39

4

43

3

41

SCHOOL YEAR 1990 1991 1992

64

64

84

84

64

64

81

81

68

43

47

47

43

43

47

41

41

41

1993
64 84
61
51 43 45

NATIONAL LARGE CITY

NORM

NORM

1993

1993

50

35

50

35

50

38

50

3o

50

40

50

38

6

28

31

31

31

34

50

39

7

34

32

32

32

30

9

34

38

32

32

30

9

23

26

28

23

23

10

35

30

33

33

22

11

33

34

34

34

34

12

35

36

38

38

38

50

39

50

38

50

39

50

42

50

45

50

47

Source: 1993 Kansas City, Missouri School District Achievement Test Results, July 27, 1993

29

PERSONNEL SUBCOMMITTEE REPORT TO THE COURT FOR YEAR V111
One of the main ingredients of the desegregation plan is that of personnel. The relatively slow improvements in the rate of academic success and desegregation can in part be attributed to personnel choices made by KCMSD.
Over the past year, the Personnel Subcommittee has reviewed the process of hiring, as well as the qualifications of the appointees, and found no consistency. In some instances, there was a complete absence of a process. The Personnel Subcommittee met with a number of appointees over the past year for administrative positions as well as principalships. While some of the appointees were very qualified for the position they were assuming, others were not. KCMSD continues to resist the staffing approach required by the desegregation plan, i.e. to hire knowledgeable and qualified persons. This was evident in KCMSD's attempt to have assistant and vice-principals placed in schools who had little, if any, theme knowledge, experience, or demonstrated interest in the theme. There continues to be numerous examples Or magnet schools where the lack of ability and academic leadership in the theme has delayed the implementation of the program, as well as gains in desegregation and in achievement. As an example, in the past two years, eight of 11 middle schools have experienced principal replacements. In some cases, the principals selected were not theme qualified, a concern which DMC Personnel and Education Committees have diligently pursued.
The frequent turnover and reorganization of Central Office staff further impacts achievement and desegregative attractiveness by resulting in constant change and poor implementation of policies which, in turn, frequently require site-based personnel to stop and start projects as Central Office administrators come and go.
In the past two years (in either a permanent or interim capacity), KCMSD has had three Deputy Superintendents, three Associate Superintendents of Instruction, and two Assistant Superintendents of Instruction, along with numerous other Central Office personnel changes, and in the Summer of 1993, KCMSD proposed its third major reorganization in two years. This is an administration in perpetual motion offering little stability for site-based personnel.
The District also advances the argument that they do a thorough national search for many of these positions, but when the DMC requests documentation from the Human Resources Department, it is found to be deficient.
30

Overall, it is the opinion of the Personnel Subcommittee that the District has operated in a haphazard manner as it relates to the Human Resources function. The District still needs a top notch Human Resources professional to manage the department and to employ individuals in the department with expertise for specific Human Resources functions. In addition, a more comprehensive recruitment plan needs to be developed by the KCMSD to meet the personnel requirements of the desegregation plan. RECOMMENDATIONS 1. That the KCMSD take steps to stabilize able, competent personnel who work
most closely with the schools to ensure continuity. 2. That hiring policies and practices be put into place and adhered to in filling all
positions to ensure court-ordered requirements are met. 3. That a comprehensive recruitment and retention personnel plan be developed to
assist in ensuring that the personnel needs of the KCMSD are met.
31

VIDT SUBCOMMITTEE REPORT TO THE COURT FOR YEAR VIII The VIDT Committee was able this year to improve relations with the suburban school districts. These improved relations allowed meaningful dialogue for the first time. The result was a proposal for what may be the initial step toward the Court's goals for a VIT plan. The VIDT Committee looks forward to the prospect of seeing the plan to fruition. The Missouri City VIT plan continues to enjoy success. The VIDT Committee this year has worked successfully with the KCMSD to ensure stability of the KCMSD personnel provided as part of that VIT plan. The subcommittee feels that such stability enhances an already successful program. The State of Missouri, in response to the Court's order, submitted a VIT plan; however, that plan was not as innovative as the VIDT Committee feels is necessary in order to gain support and success. The subcommittee looks forward to working with the State and all parties with renewed enthusiasm in light of the recent surge of activities with the suburban school districts.
32

APPENDIX A

INDIVIDUAL MIDDLE SCHOOL DATA1

BINGHAM

Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Math/Science
664

91-92
85.6%

92-93
87.0%

6th
88.4% 11.6%

7th
91.1% 8.9%

8th
81.5% 18.5%

1993 ITBS Scores by Race

GRADE 6
7
8

RACE
Black White
Black
White
Black White

READING 5.7 6.9 7.0 7.8 7.4 8.8

MATH
5.8
6.5
6.6
7.3
7.5
8.6

Special Ed/GT/Other
84.6% 15.4%

1993 KCMSD/National Totals for ITBS Scores

9.5 9
8.5 8
7.5 7
6.5 6
5.5
5
READING LANG MATH SOCIAL SCIENCE
6TH

9.5 9
8.5
8 7.5
7 6.5
6 5.6
5
READING LANG

MAIN SOCIAL SCIENCE

7TH

9.5 9
8.5 8
7.5 7
6.5 6
5.5
5
EADNG LANG

MAIN SOCIAL SCIENCE
8TH

CENTRAL

Theme: Enrolled:

Computer/Foreign Langauge
635

Minority %:

91-92

78.1%

92-93
79.1%

1993 ITBS Scores by Race

GRADE 6
7
8

RACE
Black
White Black White
Black White

READING
5.4
6.2
6.4
7.2
8.0
9.7

MATH
5.6
6.2
6.4 6.6
7.4
8.8

Grade Level %: Minority: Non-Minority:

6th
72.0% 28.0%

7th
84.1% 15.9%

8th
79.1% 20.9%

Special Ed/GT/Other
85.2% 14.8%

1993 KCMSD/National Totals for ITBS Scores

9.5

9

8.5

8 7.5

7

•

6.5

6

5.5 5
READING LANG

•
MAGI

6TH

F" 7777-n 9192 9.5

92-93

9

NATL 8.6 8

7.5

7

6.5

6

5.5

SOCIAL SCIENC E

6 R EADING LANG

MATH SOCIAL SCIENCE

7TH

33

9.5 9
8.5 8
7.5 7
6.5 6
5.5
5
EA ONG LANG

MA TN

8TH

SOCIAL SCIENCE

KCMSA,
Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Visual & Performing Arts
593

91-92
63.0%

92-93
62.4%

6th
61.4% 38.6%

7th
62.3% 37.7%

8th
60.8% 39.2%

1993 ITBS Scores by Race

GRADE 6
7
8

RACE
Black
White
Black White Black White

READING
5.8 7.1
6.6
83
7.6
9.0

MATH
5.8 6.8
6.5
7.2 7.2 8.4

Special Ed/GT/Other
75.7% 24.3%

1993 KCMSD/National Totals for ITBS Scores

9.5 9
8.5 8
7.5 7
6.5 6
5.5
5
R EACEN3 LANG

MATH

6TH

SOCIAL SCIENCE

9.5 9
8.5
8
7.5 7
6.5 6
5.5
5
R EADNO LANG

MATH SOCIAL SCIENCE

7TH

9.5 9
8.5

7.5 7
6.5 6
5.5 5
PI EALING LANG

MATH SOCIAL SCIENCE
8TH

KING
Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Latin Grammar
656

91-92
76.6%

92-93
72.0%

6th
65.3% 34.7%

7th
65.3% 34.7%

8th
83.5% 16.5%

1993 ITBS Scores by Race

GRADE 6 7
8

RACE
Black White Black White Black White

READING
6.1 7.3 7.3 8.8
8.3
10.0

MATH
6.3 7.2 7.2 8.3 7.5 9.2

Special Ed/GT/Other
83.0% 17.0%

1993 KCMSD/National Totals for ITBS Scores

9.5 9
8.6 8
7.5 7
6.5 6
5.5
5
READING

LANG

WITH

6TH

SOCIAL =SACS

9.5 9-
8.5 -

7TH

9.5 9
8.5
8 7.5
7 6.5
6 5.5
6
EALING

LANG

MATH
8TH

34

LINCOLN

Theme: Enrolled:

Math/Science
688

Minority %:

91-92

74.6%

92-93
75.6%

Grade Level %: Minority: Non-Minority:

6th
70.8% 29.2%

7th
74.9% 25.1%

8th
80.2% 19.8%

1993 ITBS Scores by Race

GRADE 6
7 8

RACE
Black
White
Black
White
Black
White

READING
5.9
7.1
7.2
7.8
7.8
8.7

MATH
6.2
7.0
7.0
7.8
7.8
8.2

Special Ed/GT/Other
87.5% 12.5%

1993 KCMSD/National Totals for ITBS Scores

9.5 9
8.5
8-

6TH

L.-el.:44249142 92-93 NATL

9.5

9 8.5

8
7.5
7
6.6
6 5.5

6
RLAONG LANG

MATT SOCIAL SCMNC E

7TH

9.5

9

8.5

8

7.5

7

6.5
6

5.5

5
R EADING LANG

NAM

8TH

SOCIAL SCIENCE

NORTHEAST

Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Global Studies
899

91-92
64.0%

92-93 .
67.3%

6th
65.4% 34.6%

7th
70.0% 30.0%

8th
70.5% 29.5%

1993 ITBS Scores by Race

GRADE
■-
6
7
8

RACE
Black White Black White Black White

READING
5.3
6.0
7.0 7.6 7.6 7.8

MATH
5.7
6.3
6.5
7.3
7.2
7.7

Special Ed/GT/Other
53.3% 46.7%

1993 KCMSD/National Totals for ITBS Scores

9.5

9

8.5
8

7.5

7

6.5
6

5.5
5
• EADIP10 LANG

MATH

6TH

SOCIAL SCEDC E

READ

LANG

MATH

7TH

35

SOCIAL SCIENCE

8TH

NOWLIN
Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Environmental Studies
887

91-92
63.5%

92-93
64.1%

6th
60.9% 39.1%

7th
66.1% 33.9%

8th
64.6% 35.4%

1993 ITBS Scores by Race

GRADE 6 7 8

RACE
Black
White Black White
Black
White

READING
5.6
6.2 6.4 7.1
7.3
8.0

MATH
5.7
63 6.5 7.2
7.4
8.0

Special Ed/GT/Other
68.5% 31.5%

1993 KCMSD/National Totals for ITBS Scores

9.5 9
8.5 8
7.5 7
6.5 6
5.5

READING

LANG

MATH

6TH

SOCIAL SCIENCE

9.5 9-
8.5 8-
7.5 7
6.5 6
5.5 5
R EALING

LANG

MATH

7TH

SOCIAL SCIENCE

9.5 9
8.5 8
7.5 7
6.5 6
5.5 5
II RADER]

LANG

MATH

8TH

SOCIAL SCIENCE

ROBESON

Theme: Enrolled:
Minority %:

Classical Greek
746

91-92
84.6%

92-93
86.2%

1993 ITBS Scores by Race

GRADE 6
7 8

RACE
Black White Black White Black White

READING
5.8 6.1 6.4 7.1 7.6 7.0

MATH
6.2 6.4 6.7 7.3 7.5 8.2

Grade Level %: Minority: Non-Minority:

6th
83.9% 16.1%

7th
90.0% 10.0%

8th
89.7% 10.3%

Special Ed/GT/Other
67.4% 32.6%

1993 KCMSD/National Totals for ITBS Scores

9.6 9
8.5 8
7.5

7 6.5
6 6.5
5
READING LANG

MATH

6TH

"'l 91-92 92-93
-10- NAIL
SOCIAL SCIENCE

9.6 9
8.5

8 7.5

7 6.5
6 6.6
5
READING LANG

MATH SOCIAL SCIENCE

7TH

9 .5 9-
8.5 -

READING LANG

MATH SOCIAL SCIENCE
8TH

36

ROGERS
Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Liberal Arts & Science
323

91-92
61.4%

92-93
65.3%

6th
61.2% 38.8%

7th
67.0% 33.0%

8th
68.9% 31.1%

1993 ITBS Scores by Race

GRADE 6
7
8

RACE
Black White
Black White Black White

READING
5.6 7.2
6.1 7.9 8.4 8.9

MATH
5.6
6.6
6.2
71
7.3 7.6

Special Ed/GT/Other
66.7% 33.3%

1993 KCMSD/National Totals for ITBS Scores

9.5

9

8.5

8

7.5

7

6.5

6

5.5

5
RLILDSIG LANG

MATH

6TH

SOCIAL !MIKE

8.5 -

8-

7.6

7

6.6

6

5.5

READDIG LANG

i
PATH SOCIAL SCSD4CE

7TH

9.5

9

8.5

8

7.5

7

6.5

6

5.5

5 READING LANG

MATH 3OC3AL SCIDICE

8TH

SOUTHEAST

Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Math/Science
604

91-92
97.4%

92-93
96.5%

6th
95.7% 4.3%

7th
94.7% 5.3%

8th
99.5% .5%

1993 ITBS Scores by Race

GRADE 6
7
8

RACE
Black White
Black White
Black White

READING
5.3 6.4 6.4 6.7 7.8 -

MATH
5.6 6.0 6.4 5.8 7.6 -

Special Ed/GT/Other
95.3% 4.7%

1993 KCMSD/National Totals for ITBS Scores

9.5 Fr."7771 91-92
9

8.5

92-93

8

NATL

7.5

7

6.5

6

5.6

READO10 LANG

MATH

6TH

SOCAL EICIDICE

9.6 9
8.5
8
7.6
7 6.5
6 5.5
6
LSJSNG LANG

MATH

7TH

37

SOCIAL SCIENCE

9.5
9
8.5
8
7.5 7
6.5 6
5.5
MEADOW LANG MATH SOCIAL SCIENCE
8TH

WESTPORT

Theme: Enrolled:
Minority %:
Grade Level %: Minority: Non-Minority:

Communications & Writing
795

91-92
92.2%

92-93
90.7%

6th
90.6% 9.4%

7th
92.8% 7.2%

8th
91.0% 9.0%

1993 ITBS Scores by Race

GRADE
6 7
8

RACE
Black
White
Black
White
Black
White

'READING
5.6
6.1
6.8
6.5
7.7
7.9

MATH
5.9
6.2
6.8 7.2 7.2
8.1

Special Ed/GT/Other
80.0% 20.0%

1993 KCMSD/National Totals for ITBS Scores

9.5 9
8.5 8
7.5 7
6.5 6
5.6 5
AIMING LA710

MATH

6TH

•00AL ACIMICII

9.5 9-
8.5 8
7.5 7
6.5 6
5.5 5
READMO

LANG

MATH SOCIAL IICENCIE

7TH

9.5 9
8.5 8
7.5 7
6.5

REAC•44

LAHO MATH SOCAL SCUM=
8TH

Lincoln College Preparatory not included in data due to its unique characteristic as a 6-12 student population. 1 1993 Student Achievement by School, Grade and Racial/Ethnic Code, KCMSD, August 9, 1993 KCMSD January 27, 1993 Student Census Count KCMSD School Profiles 1992 1993 Kansas City, Missouri School District Achievement Test Results, July 27, 1993

38

Comparison of KCMSD and State of Missouri Average Scale Scores on Missouri Mastery and Achievement Tests by Grade Level, 1989 through 1993

GRADE YEAR
Grade 3 1989 1990 1991 1992 1993
Grade 6 1989 1990 1991 1992 1993

READING/LANG ARTS KCMSD STATE DIFFER

275

328

-53

267

323

-58

274

321

-47

281

323

-42

277

325

-48

MATHEMATICS KCMSD STATE DIFFER

275

323

-48

278

330

-52

289

326

-37

289

339

-50

286

341

-55

SCIENCE KCMSD STATE DIFFER

282

344

-82

278

347

-89

290

344

-54

301

364

-63

294

387

-73

255

321

-66

244

310

-66

225

296

-71

241

308

-87

240

313

-73

264

339

-75

274

355

-81

267

347

-80

274

349

-75

271

365

-94

260

344

-84

284

375

-91

268

352

-84

254

347

-93

251

360 -109

Grade B 1989 1990 1991 1992 1993

278

326

-48

282

322

-40

272

318

-46

271

323

-52

266

318

-52

269

335

-66

280

346

-68

270

331

-61

264

335

-71

258

343

-85

277

345

-68

295

357

-82

271

339

-68

285

365

-80

278

355

-77

Grade 10 1989 1990 1991 1992 1993

274

324

-50

288

335

-47

273

313

-40

274

313

-39

266

311

-45

270

330

-60

270

327

-57

278

326

-48

291

338

-47

282

329

-47

265

322

-57

271

333

-59

282

327

-45

298

348

-50

290

329

-39

Source: 1993 Kansas City, Missouri School District MMAT Achievement Tests Results, September 1, 1993

SOCIAL STUDJCIVICS KCMSD STATE DIFFER

284

337

-53

282

346

-84

286

338

-50

275

336

-81

272

342

-70

254

322

-68

267

335

-88

257

330

-73

251

322

-71

248

329

-81

273

325

-52

275

327

-52

259

315

-58

265

324

-59

257

316

-59

263

311

-48

271

316

-45

268

302

-34

273

307

-34

265

300

-35

 
 In the Cause of Kalima Jenkins, et al.
vs. State of Missouri, et al. Case No. 77-0420-CV-W-4
Report of the Desegregation Monitoring Committee for the period July 1, 1991 - June 30, 1992

Eugene E. Eubanks, General Chairperson

Budget Committee

Desegregation Committee

Thomas Bixby, Chair Kenneth Kraft Calvin Ward

James Oglesby, Chair Javier Perez, Jr. Paul Rojas

Education Committee

VIDT Committee

Miguel Sancho, Chair Charles James Catherine Thompson

Carl DiCapo, Chair Ed Stoll Ed Phillips

TABLE OF CONTENTS

Budget Subcommittee

1

- Introduction

1

- Year VII

1

- Direct Costs

3

- Purchasing

4

- Capital Improvements

4

- Transportation

5

- Joint Review Committee

5

- Conclusion

6

- Recommendations

6

Desegregation Subcommittee

7

- Overview

7

- Desegregation Trends

7

. Total Student Membership

7

. Ninety Percent Minority Schools

8

. Minority Enrollments Magnet Schools

8

. KCMSD Marketing and Recruitment

9

- Security and Safety

10

- Capital Improvements

10

. CIP Budget Overruns

11

- Transportation

12

- Recommendations

13

Education Subcommittee

14

- Administration

14

- Personnel

15

- Purchasing and Procurement

17

- Relation of Administration to School Board

17

- Review of LRMP Programs and Renewal

18

- Proposed Magnet Themes

18

- Intervention Programs

18

- Cost Containment in CIP

19

- Achievement

19

. Drop-Out Rates

23

. Suspension Rates

23

i

- Magnet Themes

25

1986-87 Elementary Magnets

25

College Preparatory

25

Advanced Technology

26

Agribusiness

26

Business and Technology

27

Classical Greek

28

Communications

29

Computers Unlimited

30

Engineering and Technology

30

Environmental Science

31

Foreign Language/Global Studies/International Studies

31

. Health Professions

33

Latin Grammar

33

Law and Public Service

34

. Liberal Arts

34

Math/Science

35

Military Science

36

Montessori

36

. Visual and Performing Arts

37

- Non-Magnets - Elementary

37

- Early Childhood

38

- Summer School

39

- Staff Development

40

- Extended Day

41

- Effective Schools

42

- Recommendations

42

VIDT Subcommittee

43

ii

BUDGET SUBCOMMITTEE REPORT TO THE COURT FOR YEAR SEVEN

Members
Thomas Bixby, Chair Kenneth Kraft Calvin Ward Ed Stoll

Contents

INTRODUCTION

1

YEAR VII

1

DIRECT COSTS

3

PURCHASING

4

CAPITAL IMPROVEMENTS

4

TRANSPORTATION

5

JOINT REVIEW COMMI1 1P-h.

5

CONCLUSION

6

RECOMMENDATIONS

6

Budget Subcommittee Report to the Court for Year VIII

Introduction
There have been significant changes in the makeup of the Budget Subcommittee (BSC) over the past year. The BSC has had two new members, one of whom has now left, in addition to a new chairperson. The strength of the subcommittee over the past several years has been the active participation of each of its members. Despite all the changes, this level of participation has continued, and has made the committee stronger.
The subcommittee has taken a somewhat different approach to monitoring the desegregation program's finances over the past year. The BSC has looked less at how well the District keeps track of its money, and more at how the District spends its money. This change has occurred in part due to circumstances — specifically the direct cost study
and in part because the District continues to make steady progress in its financial management (the District was recentl y awarded a Certificate for Excellence in Financial Reporting by School Systems b y the Association of School Business Officials International).
However, there remain too few incentives for the District to utilize desegregation funds wisely. The District has not, in our opinion, done enough to become efficient, or enough to evaluate the cost effectiveness of various programs. Progress in the desegregation program does not justify the current level of spending.
The District continues to budget and request far more in desegregation funds than it actually spends: Year VII funds were 67% expended as of April 30, 1992 (reference the following table). With less than 20% of the year left, some programs have 40% or more of their budgets to expend. Assuming that most supplies and equipment for the school year should have been purchased months ago, this is a substantial portion of the budgeted funds which will go unspent. The District continues to budget based on previous years' budgets rather than actual costs.

Triple A Reduced Class Size Summer School Full Day Kindergarten Extended Day Traditional Early Childhood Effective Schools

YEAR VII

Budget

Expended Year to Date
(4/30/92)

$5,999,958 5,627,985 4,445,549 1,837,094 453,000 5,589,872 7,250,000

$3,517,718 3,790,454 1,923,575 1,068,998 281,763 4,577,829 5,017,596

1

Percent Expended
59% 67% 43% 58% 62% 82% 69%

1986-87 Magnets Base Budgets LRMP Transportation District Communications Research, Evaluation & Testing Teacher Salary Maintenance Plan Special Education Security Salary Package Summer Security Interest Expense I & II Debt Service IV-VII VIT

14,884,455 13,258,819 42,340,187 27,394,188
31,125 5,060
5,776,605 2,239,877
869,189 1,337,412 36,000,000
124,580 593,503 14,951,165
19,532

TOTAL

$191,029,155

8,949,478 8,028,974 24,009,315 18,198,814
18,125 3,652
4,718,512 2,022,083
691,672 714,527 24,767,700 179,918 245,449 14,866,822
15,739
$127,608,713

60% 61% 57% 66% 58% 72% 82% 90% 80% 53% 69% 144% 41% 99% 67%
67%

Unfortunatel y, the District has not fully accomplished any of the six recommendations made to the KCMSD by this subcommittee last year. Those recommendations were:

1.

The KCMSD should be required to encumber funds (issue formal

purchase orders for the current fiscal year) no later than 60 days

prior to the end of the fiscal year, June 30th.

2.

The KCMSD should be required to clear all outstanding obligations

of record on June 30th of each fiscal year within 120 days subsequent

to that date, and no payments made after that date without the express

approval of the DMC.

3.

The KCMSD should be required to take such action as is necessary

to provide for much greater internal auditing to protect itself against

waste, abuse, and fraud in expending the resources provided by the Court.

As long as millions of dollars are allocated to the desegregation remedy,

the opportunity for misuse is prevalent.

4.

The KCMSD should be required to see that the Superintendent and

his Cabinet assume their rightful responsibility to see that the operating

and desegregation funds are spent in a cost-effective manner, and that

budgets are managed properly. With the hiring of a new superintendent,

this requirement is a necessity.

5.

The KCMSD should be required to present a long-range plan for

funding the school district after the Court steps aside and ceases to

2

provide the funds.

6.

The KCMSD should be required to submit a plan for the

implementation of the findings in the Deloitte & Touche Management

Study.

Although progress has been made in terms of closing out the fiscal year in a timely fashion, the District did not meet the 60-day and 120-day guidelines called for by the subcommittee in Year VI.

Direct Costs

The BSC started the year with the task of monitoring the District's study of costs associated with the desegregation program which had not previously been viewed as desegregation costs. The Court had ordered that such "direct costs" might now be considered a desegregation expense, and that the District could bring forth a proposal to identify and fund those costs.

The District employed Deloitte & Touche to do the study -- the same firm which had completed a management study of the District for the DMC the year before. The BSC held monthly meetings with the District and Deloitte & Touche in an attempt to avoid any misunderstanding of the DMC's interpretation of which expenses were appropriately termed direct costs and prevent unnecessary expenses being incurred in conjunction with the study due to such misunderstandings.

Unfortunately, two major items, each involving funds in excess of $2,000,000, were presented to the BSC by the KCMSD for the first time upon submission of the final direct cost proposal. The BSC, and later the full DMC, took exception to more than half of the proposed direct costs. Had these issues (legal fees and "phantom employees") been presented to the BSC during the regularly scheduled discussions on direct costs, the subcommittee could have advised the KCMSD of alternative measurements of legitimate costs acceptable to the committee or, at a minimum, the District would have had greater budget flexibility in the operating budget because the problem would have been addressed much earlier in the school year.

The direct costs issue is currently pending before the Court. Presumably, however, the District will request some sort of direct costs again in the coming year. One of the issues which the BSC raised throughout the direct cost process of the past year, and the District failed to address adequately, is the development of mechanisms for ongoing measurement of direct costs. A weakness in the original study was the compressed timeline for studying district employee work activities. A more valid study would measure work throughout the year. Clearly this was not an option for the initial study. It is an option for future studies and future desegregation revenue requests.

3

Purchasing
The District's Purchasing Department has been a major problem for the District and the desegregation program for a number of years. The inability of the District to get supplies and equipment to the schools has been a continual embarrassment, and an obstacle to providing a quality education with a magnet theme to students in the District.
For each of the last several years, the District came to the DMC and subsequently the Court to request "budget carryovers." Because of the volume of purchase orders, the DMC was told, the Purchasing Department was unable to process all of their work on time, and students would be deprived of important equipment for their education if the DMC did not approve the carryovers. Each year the DMC and the Court allowed the carryovers, but promised improvements in the Purchasing Department by the KCMSD did not materialize, and each year the vote on the DMC was closer to a "no" vote on this issue.
The debate within the DMC centered on the fact that, although all agreed that getting the equipment "for the kids" was important, simply approving the carryovers allowed the District to have no consequences for having failed to perform. Although the DMC had "censured" the District for its failure in the past, censure had no practical effect, and clearly did not have the desired effect: getting the District to fix the problem.
When the District once again needed carryovers in 1991-92, the BSC discussed alternatives to either censure or taking exception to the carryovers. The BSC proposed to the full DMC that no exception be taken to the carryovers, but recommend that the Court sanction the District for having failed to address the Purchasing Department's problems. The sanctions were upheld and increased by the Court. The BSC will not be convinced that this action resulted in the desired effect until the supplies and equipment reach the schools in a timely manner. However, so far it would appear as though the results have been dramatic. A new director for the Purchasing Department has been brought on. The department has been restructured with numerous changes implemented so that the purchasing process, as reported by the KCMSD, seems to be working very smoothly and very efficiently.
Capital Improvements Program
The Capital Improvements Program (CIP) continues to raise questions regarding cost-effective implementation. The BSC, in conjunction with the Desegregation Subcommittee, has raised questions about a lack of cooperation with various government agencies: required city inspections costing thousands of dollars which could be performed by state inspectors at no cost to the desegregation program; problems getting right-of-ways for some projects; and quid pro quos for other projects.
4

It is the feeling of the BSC that the Project Management Team (PMT) has not been successful in carrying out its mission regarding cost containment, and that the District's Oversight Team (OST) does far less overseeing of the PMT than it should. At times it appears as though the OST plays the role of support staff for the PMT rather than a supervisory role. This is an area which the BSC would like to spend some time delving into in the coming year.
Transportation
The Budget and Desegregation Subcommittees have utilized the services of the DMC's financial specialist to perform an audit of the Transportation Department. At this writing, the audit is not complete. However, preliminary results indicate that there are numerous serious problems within the department. It is our understanding that some problems were addressed when raised by the financial specialist, but others remain. Since the audit is not complete, and the District has not had an opportunity to respond to all of its findings, it is not appropriate to comment on the specifics of the audit here.
One transportation problem encountered by the chair of the BSC on a school visit involved the efficiency of the District's routing of buses. This spring, a new federal law went into effect which initiated more stringent requirements for bus drivers to be licensed. The result was that the contractors had difficulty getting enough drivers on the streets. At one school, the problem was solved by rerouting buses so there were fewer routes, necessitating fewer drivers. This was possible because the routes had been based on the number of students attending the school in September, and that number had dropped considerably. If the District could draw up new routes to accommodate the needs of the contractor, the District should likewise draw up new routes, based on need, months earlier to reduce costs.
Joint Review Committee
The Joint Review Committee (JRC) -- made up of members of the Budget and Education Subcommittees — has made two changes in budget transfer procedures during the year. First, at the request of the KCMSD, the JRC recommended, and the DMC agreed, to allow greater flexibility to the District by not requiring pre-approval for desegregation budget transfers of less than $10,000 (Effective Schools and Extended Day excepted). Second, the JRC no longer required parent signatures for Effective Schools budget "clean up" transfers which are under $1,000.
The JRC also has proposed changes in Effective Schools budget transfers for Year VIII: (1) All budget transfers requiring School Advisory Committee (SAC) signatures must have five parent signatures, and (2) Effective Schools plans must be approved by the SAC and minutes of the vote must be provided with the Effective Schools site plan. These changes are designed to encourage more parental involvement in the SAC's. Clearly it will not guarantee more involvement, but the JRC felt that the requirement would put pressure
5

on principals to work with and develop an active SAC. Conclusion
The District continues to make steady progress towards putting its financial house in order. However, other major problems remain, requiring a more tightly focused effort on the part of the KCMSD and, therefore, the BSC submits recommendations as noted below: Recommendations 1. The KCMSD should be required to develop and implement ongoing mechanisms for
the measurement of direct costs as part of any future request for desegregation funding. 2. The KCMSD should be required to begin a maintenance reserve fund/program so as to ensure proper maintenance of the massive CIP investment of the desegregation program. 3. The KCMSD should be required to comply with the Court's order that it present a long range plan for funding the school district after the court steps aside and ceases to provide the funds. 4. The KCMSD should be required to develop a more competitive and inclusive bidding process for the purchasing of goods and services. 5. The KCMSD should aggressively pursue the elimination of tax abatement properties, thereby increasing revenue for the operating budget. 6. The KCMSD should be required to develop a more valid process to determine when there is supplanting of the operating expenditures by desegregation revenue.
6

DESEGREGATION SUBCOMMITTEE REPORT TO THE COURT FOR YEAR SEVEN

Members
Dr. James Oglesby, Chair Javier Perez, Jr. Paul Rojas Carl DiCapo

Contents

OVERVIEW

7

DESEGREGATION TRENDS

7

. Total Student Membership

7

. Ninety Percent Minority Schools

8

. Minority Enrollments Magnet Schools

8

. KCMSD Marketing and Recruitment

9

SECURITY AND SAFETY

10

CAPITAL IMPROVEMENTS

10

. CIP Budget Overruns

11

TRANSPORTATION

12

RECOMMENDATIONS

13

Desegregation Subcommittee Re port to the Court for Year VII

Overview
The Desegregation Subcommittee continued to focus on the global aspects of the court-ordered desegregation plan during Year VII. Year VII was a significant year because the KCMSD changed superintendents for the fourth time since the June 14, 1985 courtorder was entered. Progress in desegregation of students continued at an uneven and unacceptably modest pace during Year VII, with frequent changes in supervisory leadership and focus being a contributing factor.
In 1991, a new administrative organization was presented to the DMC which reflected a number of changes in the top echelon of the KCMSD administration and was judged by the Desegregation Subcommittee to be top heavy at the Superintendent's level. The Desegregation Subcommittee continues to question whether the administrative organization as designed can effectively implement the court-ordered plan. During Year VII, key organizational changes in personnel have continued to occur and the Desegregation Subcommittee continues to question not only the organizational structure in place in the District, but also the knowledge and competency of key administrative personnel both at the central and building level.
The question of whether desegregation is occurring in the KCMSD continues to be
i raised by the Desegregation Subcommittee. Progress is far short of expectations and, after seven years, the Desegregation Subcommittee finds accomplishments to be clearly inadequate in relationship to the dollars expended.

1987-88 1988-89 1989-90 1990-91 1991-92*

DESEGREGATION TRENDS

Total Student Membership

Majority Students

Minority Students

Total Students

%Minority Students

9,172 9,148 8,785 8,891 9,297

26,257 25,974 26,0651 26,207 26,710

35,429 35,122 34,850 35,098 36,007

74.1% 74.0% 74.8% 74.7% 74.2%

* Thirty-Seventh Annual Report on the Progress of Desegregation in the Kansas City Public Schools Includes American Indian/Alaskan 98; Asian Pacific Islander 513; Hispanic 1,489
7

The Total Student Membership data on the KCMSD indicated a slight increase in total student membership. In 1991-92, 909 additional students increased the total membership in the KCMSD to 36,007. Of the 36,007 students, 26,710 were minority and 9,297 were non-minority. The percent of minority students decreased to 74.2%. This represents a .5% decrease in minority students over the 1990-91 school year. This minimal change from the 1990-91 school year still places the District at a position where the percentage of minority student population is greater than it was in 1987-88.

The total number of both non-minority and minority students indicates an increase in 1991-92 over 1990-91. A similar increase has been consistent in all categories since the 1989-90 school year.

Ninety Percent (90%) Minority Schools

Elementary

Secondary

Total

1987-88 1988-89 1989-90 1990-91 1991-92

20

5

25

16

5

21

13

8

21

11

5

16

10

4

14

The KCMSD continues in 1991-92 to make some progress in reducing the total number of 90%+ minority schools. A review of the January 29, 1992 Student Census Count shows that 10 are elementary (nine of those being non-magnet schools) and four are secondary.

Minority Enrollments Magnet Schools

Increase in No Change in

Minority

Minority

Students

Students

Elem.

13

0

Middle

4

High

5

0

Decrease in Minority Students
22 6 5

Minority Enrollment
Below 60%
11 0
1

Minority Enrollment
Above 60%
24 11
9

Minority Enrollment Above 70Z
5 7 6

Minority Enrollment
Above 90Z
1
2 2

A review of changes in minority enrollment for magnet school is further evidence of the difficulty the KCMSD continues to have in desegregation efforts at the secondary level. Of 11 middle schools, seven are more than 70% minority, with two being more than 90% minority, and all being above 60% minority. Of the 10 high schools, six are more than 70% minority, two being more than 90% minority, and nine being above 60% minority.*
* KCMSD Percent of Minority Enrollments by School 1990-91 and 1991-92, June 1992

8

KCMSD Marketin g and Recruitment for Majority Students

Number

Goal

Applications

1990-91 1991-92

1,000 1,100 2,100 1,980

* Includes 19 Pre-K, 3/4

Number Placed
794 988

Actual Attending
545 715

High Middle Elem. School School School Total

106

135

304

545

197

135

364

715*

The recruiting goal for majority students in 1990-91 was 1,000; 1,564 applications were received, with 794 being placed and 545 enrolled at the schools. The Marketing and !Recruitment Plan for school year 1991-92 was presented to the DMC in May 1991. The KCMSD recruitment goal for 1991-92 for new non-minority students was 2,100. The 199192 goal of 2,100 resulted in 1,980 applications received, 988 were placed and 715 actually enrolled, including 19 pre-Kindergarten, three- and four-year olds.** Evidently, for 199192. the District presently has in its enrollment onl y 34% of its recruitment goal for the 1991-92 school year.
L
In the previous years since the court order was approved, it was difficult to secure accurate data on goals for recruiting, number placed, and number attending. Further, the District did not have a system in place to track changes and withdrawals. The DMC was informed in April 1992 that the hardware and software were installed, tested, and the District is able to now identify students. The DMC has also commissioned an audit to determine the number of non-minority suburban school district (SSD) students attending the KCMSD in 1991-92. The rationale for the audit was the result of conflicting enrollment data presented by the KCMSD's Admissions and Transportation departments and an audit report is expected by the DMC in September 1992.
The KCMSD has not produced evidence of its retention rate for non-minority students.Clearly, the KCMSD's responsibility extends beyond initial enrollment as nonminority enrollment must be kept in the KCMSD beyond the early elementary years. If desegregation is ever to be accomplished, retention rates and analysis of withdrawals must be available an examined to assist in the examination o progress o esegregation in the KCMSD and to identify needed intervention actions to retain students once they are enrolled.

** Consent Agenda Board Item I-1-A dated June 1, 1992 9

Security and Safety
The security issue relative to providing a safe learning environment for student learning is emerging as a major problem for the implementation of the desegregation plan. During the 1991-92 school year, reports appeared in the media about altercations at one or more of the magnet schools. It is difficult to assess the actual impact this negative publicity has had on the desegregation program. However, the Desegregation Subcommittee has received anecdotal information which reflects an attitude by suburban non-minority parents and students that certain magnet schools are unsafe. This attitude is particularly directed at the high schools.
The 1991-92 enrollment data indicated that the number of suburban non-minority students attending the KCMSD at the elementary level remain fairly consistent. However, at the middle and high school levels, the attraction fades. The number of schools that fail to meet their racial quotas increases at the middle and high schools. It is difficult to establish a direct cause and effect between the publicity about the safety and security at these magnet schools at the secondary level and non-minority attendance. In the 1990-91 court report, it was stated that of the four top reasons for student withdrawal, safety was listed as one of the factors. (One could conclude that safety and security could be a negative factor impacting on the desegregative efforts and successes at the secondary magnet schools.)
The KCMSD staff has indicated to the DMC that during 1991-92, an emphasis has been placed on safety and security in problem areas at the secondary level, but a comprehensive security and safety plan has not been adequately developed and implemented.
It must further be added that the human relations issue, along with safety and security, is a factor. To explain further, problems erupted in 1991-92 at a magnet school that the KCMSD staff felt to be related to both race and class. The KCMSD had indicated to the Desegregation Subcommittee that a human relations component was being developed and that this issue would receive the full support of the Superintendent. However, the Human Relations position is proposed to be eliminated by cuts in the KCMSD's operating budget and no adequate human relations plan has been developed and implemented by the District as of July 1992.
Capital Improvements
Overall, significant progress has been made in the visual appearance of the school buildings involved in the CIP plan. The Desegregation Subcommittee continues to deal with issues which indicate that the implementation of the CIP plan remains problematic. An overriding concern is whether the District is receiving quality facilities for the magnitude of dollars allocated through the court. Change orders continue to come in at a high rate, planning process issues continue to arise, and budgets for capital projects continue to be
10

exceeded.
Meetings between the Desegregation Subcommittee and the parties were held in 1991-92 to address these very issues. The actions and activities needed to bring a building from the resources allotted to a finished facility appear staggering. When a glitch occurs, it is nearly impossible to determine the reason, and there are usually multiple reasons.
A major issue that may require the Court's attention is the PMT management fee. The original contract between the PMT and KCMSD lacked specificity. Therefore, we are approaching some difficult decisions regarding the PMT fee, partly due to the numerous delays in the CIP process for project completion. During the year, conflicts have occurred between the District and the PMT about whether certain requests for services by the District were within the scope of work of their contract. The net outcome of these disputes has been that the District was compelled to use additional resources to hire consultants to buttress the work required to continue the construction project.
Numerous cases exist where the expenditure exceeded the budget in order to complete a project. To heighten review of such expenditures, the DMC voted to request a review of projects that exceeded the budgeted expenditures by ten percent. The main glaring example of such cost overruns was at the Paseo shared facility. It is noted that the new administration has given assurances that projects will be completed within the courtordered budget. The KCMSD has proposed to make certain alterations in projects in Phases VI-VII, VIII, DC and XI to remain within budget. The DMC will continue to monitor proposed alterations to ensure that programs will not be housed in facilities which do not meet the program's educational needs.
Early One project of great concern to the Desegregation Subcommittee is the Linwood Childhood Center. The KCMSD has presently discontinued this project after the expenditure of more than $700,000 due to what has been described as unforseen infrastructure problems. The Desegregation Subcommittee notes the Early Childhood program is one which has in the past been adequate, but woefully short of space.
The Desegregation Subcommittee will continue to investigate the circumstances regarding expenditures for this project and monitor the KCMSD's efforts at resolution of this issue.

School

Ordered Budget

Paseo Middle Southeast Annex Southwest High Paseo/Shared Facility East High Southeast High

5,605,163 899,973
9,451,793 14,721,902
7,496,505 6,849,930

CIP Budget Overruns*

CIP Budget Allocation
5,605,163 899,973
9,451,793 14,654,188
7,496,505 6,849,930

Anticipated Costs
6,611,894 1,032,665 11,197,385 20,533,611 8,684,191 8,428,081

11

Over CIP Budget
1,006,731 132,692
1,745,592 5,879,423 1,187,686 1,578,151

% Over CIP Budget
18.0% 14.7% 18.5% 40.1% 15.8% 23.0%

Van Horn Westport Middle Westport High Linwood New Attucks Paige Holliday

6,559,681 5,327,597 7,556,023
930,566 2,746,701 1,718,902 1,637,801

6,559,681 5,327,597 7,556,023
930,566 2,665,580 1,663,009 1,565,775

* CIP Budget Overrun Report, May 13, 1992

7,605,238 6,599,636 8,679,740 1,633,380 3,211,900 1,884,803 2,259,457

1,045,557 1,272,039 1,123,717
702,814 546,320 221,794 693,682

15.9% 23.9% 14.9% 75.5% 20.5% 13.3% 44.3%

The Desegregation Subcommittee meetings with the District regarding change orders involved both the massive number and their financial magnitude. The DMC voted to request a review of change orders totaling $100,000 or more. Unfortunately, the net result does not appear to be a reduction in the number of change orders, but simply submission of change orders that were presented for amounts less than $100,000.

The project implementation process is wrought with delays. Many delays are due to the inability of different governance entities' lack of urgency in working together to complete a project. City departments have caused many delays due to the complicated approval process needed to push ahead on a project. Even though the court order provided resources for oversight of the CIP, performance in this area has been dismal.

The DMC expressed concern in 1990-91 regarding the ability of KCMSD to maintain the new and/or remodeled facilities. The KCMSD entered into a management-type contract with ServiceMaster and Woodley Building & Associates to provide maintenance for five years. The Desegregation Subcommittee and the full DMC reviewed the contract, questioned the terms of the contract, but ultimately "took no exception," as basically no other alternatives were readily available. A review of performance will be conducted in November 1992 to determine whether the maintenance relationship is working satisfactorily.

Transportation

The Transportation Department has been under new leadership during 1991-92. It would appear that benefits are being derived from new initiatives aimed at bringing professionalism to the department. The Transportation Department is improved over past years, however, problems remain -- cost-effectiveness being top on the list. The KCMSD appears to perceive cost-efficiency and quality performance as mutually exclusive. The Desegregation and Budget Subcommittees have worked throughout the year to determine whether mechanisms are being utilized to achieve both fiscal responsibility and high quality service. The Desegregation Subcommittee will continue to pursue this issue in the coming year.

12

Recommendations 1. That reliable non-minority retention and withdrawal data be collected and analyzed
by the KCMSD to assist in the implementation of procedures to maintain nonminority enrollment. 2. That the KCMSD develop a comprehensive security plan which addresses the needs at the site level, based on bottom-up input, to address the issue of safety at KCMSD facilities. 3. That the KCMSD develop a proactive human relations plan demonstrative of diversity and a commitment to desegregate the KCMSD. 4. That the KCMSD put forth greater efforts to facilitate a cooperative relationship between governmental agencies involved in the capital improvement process. 5. That the KCMSD develop a plan to provide greater oversight over PMT activities and the quality of workmanship in CIP projects. 6. That the KCMSD develop a more comprehensive marketing, recruitment and retention plan to ensure that recruitment goals result in actual continuing non-minority enrollment in the magnet schools. 7. That the KCMSD develop a transportation plan that incorporates both quality of service and cost efficiency as its goals.
13

EDUCATION SUBCOMMITTEE REPORT TO THE COURT FOR YEAR SEVEN

Members
Dr. Miguel Sancho, Chair Charles James
Catherine Thompson Ed Phillips

Contents

ADMINISTRATION

14

PERSONNEL

15

PURCHASING AND PROCUREMENT

17

RELATION OF ADMINISTRATION TO SCHOOL BOARD

17

REVIEW OF LRMP PROGRAMS AND RENEWAL

18

PROPOSED MAGNET THEMES

18

INTERVENTION PROGRAMS

18

COST CONTAINMENT IN CIP

19

ACHIEVEMENT

19

. Drop-Out Rates

23

. Suspension Rates

23

MAGNET THEMES

25

NON-MAGNETS - ELEMENTARY

37

EARLY CHILDHOOD

38

SUMMER SCHOOL

39

STAFF DEVELOPMENT

40

EXTENDED DAY

41

EFFECTIVE SCHOOLS

42

RECOMMENDATIONS

42

Education Subcommittee Report to the Court for Year VII
Administration
The academic year of 1991-92 was the first full year for the new Superintendent and his administrative team. Not surprisingly, the period was marked by a number of adjustments, both in structure and personnel, as design and staffing patterns met the realities of the KCMSD.
At the beginning of this process, the Education Subcommittee expressed certain reservations, both in the administrative arrangements and in some of the personnel choices made to fill the positions. In particular, the Education Subcommittee felt that the large administrative apparatus immediately surrounding the office of the Superintendent might not be as cost effective as intended. The Education Subcommittee also questioned the very wide spans of control assigned to the offices of the Deputy Superintendent and the Associate Superintendent for Instruction. The concerns of the Education Subcommittee remain after the first year of the tenure of the new superintendent.
As ordered by the court, the Education Subcommittee participated in the Personnel Subcommittee's review of the qualifications of individuals appointed to administrative positions from the level of principal and higher. The subcommittee also reviewed the process by which the personnel were brought into the District. As the year progressed, the administration tuned both the structure and the personnel to fit the structure and, in several cases, in line with the recommendations of the Education and Personnel Subcommittees.
One prominent feature of the new and existing administrative set up is the vanishing separation between the magnet and non-magnet operations of the District. In the original LRMP, the magnet operations were administered under an almost completely separate structure from the non-magnet, with a separate personnel office, directors, and so on. The previous administration, with court approval, brought the magnet and base program operation together, removing the freestanding magnet school administration. There was, under that organization, an acknowledgement of magnet themes. For example, schools were grouped into areas of similar magnet theme with some non-magnet elementary schools for purposes of supervision. Under the present structure, the division into theme areas has been dropped. Clearly the push to make the directors conversant with the content of the themes in the schools the y supervise, which was possible under the previous configuration. is now much less possible. Directors of elementary and secondary schools have been chosen for their administrative/managerial expertise and these ap p ointments significantly impede the implementation of theme specific initiatives.
The danger here is that the administrative structure might lead to the loss of integrity and uniqueness of the separate magnet schools. As will be discussed below, this
14

problem is exacerbated when principals and other school level administrative personnel are selected without regard to their interest, background, or experience in the magnet theme of the schools they are to lead.
Personnel
A previous member of the DMC noted the most important decisions are personnel decisions. Indeed, the relatively slow improvements in both the rate of desegregation and of achievement in the past can in large part be attributed to the uneven quality of the people called upon to implement this far-reaching and complex plan, both at the building level and at the level of the central administration.
The new administration is headed by an individual who has national experience and reputation. Not surprisingly, the administrative team initially put together reflected the connections and network developed over the years. Initially, the Education and Personnel Subcommittees, having reviewed the process of hiring and the qualifications of the appointees, took exception to some, but by no means all, of the individual selected, and in some cases to the processes of selection. Following a process, the DMC made its concerns known to the Superintendent and then to the Board of Education.
While the Superintendent was steadfast in supporting his appointees, he and the Board assured the DMC that all individuals in his administration would be given a chance to demonstrate their abilities and then be held accountable. And the DMC has not been hesitant in reminding the administration of that commitment. It seems clear that in a number of cases the monitoring actions of the DMC contributed to the administration's resolve in living up to some commitments.
At the school level, the process of improving the suitability of the personnel to deliver the programs continues, if, at times, somewhat unevenly and at times with less concern for the integrity of the distinctiveness of magnet themes than is necessary. The Education and Personnel Subcommittees interviewed this year's appointees for the positions of principal. Some of these were appointments from within the District and some were from outside. In a number of cases, the appointees were both exceptionally well trained as administrator and as academic leaders for the magnet program to be offered at their school. This was not the case with others. The administration seemed to have completely ignored the theme requirement in making the appointment. The District continues to make the argument that it can hire "generic" school level administrators without regard to their magnet experience and commitment and provide some sort of add-on training after the fact. It is the case that the 1990 salary order allows for some exception, but only when a thorough search has discovered no candidate with the requisite background. It may be that the District is using this escape clause as the starting point rather than the last resort intended by the court.
15

While the Education and Personnel Subcommittees are aware of the fact that individuals well versed in a theme are not automatically prepared or suited to lead a school, it is clear that the most successful magnet schools are those where the leadership is committed, even passionate, about the theme. Where this is present, the teacher corp at the school can be brought along in absorbing the ethos of the enterprise. There have been numerous exam p les of magnet schools at which the lack of ability and academic leadership in the theme has delayed the implementation of the program, and made gains in desegregation and in achievement negligible.
The District is in the process of sharpening the distinction between magnet secondary schools through updating of curricula. This process will be facilitated where strong academic leadership in the theme exists. Similarly, teachers and administrators continued or brought into magnet schools without theme background are now in the process of assembling portfolios of self-development in the theme areas in which they participate. Again, the process, if facilitated by the presence of an academically prepared school administration, might be successful. The Education and Personnel Subcommittees have worked with the District in encouraging this process.
More difficult, but just as important, a more efficient evaluation instrument and processes for teachers and administrators is being put into place. Every organization includes employees who would be better off in other employment. The teaching profession and the KCMSD are no exception. The processes for removal of teachers after their probationary period, after they have achieved the status of tenure in their position, has been a laborious and punishing one for the administrators involved. While due process must be guaranteed to every employee, increasing the efficiency of the process will serve the interest of the District, the overwhelming majority of competent employees, and especially the plaintiff children. Given the actions of the court in making additional resources available for teacher salaries, the corresponding improvements in the personnel of the District should be expected. But this, unfortunately, has not been realized, given the massive financial resources provided by the court.
At the same time, though it has proved somewhat difficult to recruit for the KCMSD nationally, the administration has been provided resources and incentive to bring in the most highly qualified individuals for the implementation of the desegregation programs. One method for acquiring highly qualified instructors involves looking beyond the usual product of certification programs at college and university departments of education. Many of the magnet themes require staffing by individuals not likely to have met the usual certification requirement. The Education and Personnel Subcommittees have facilitated meetings between representatives of the Missouri State Department of Education and the Human Resources division of the District with the intention of reviewing policies and procedure by which "non-traditional" or alternative certification routes can be pursued by recruiters for the District and individuals seeking positions. The certification arm of the Missouri Department of Education has, as in the past, presented itself as flexible and open to the alternative approaches to certification. The KCMSD also verbally presents itself
16

as open to alternative certification, but it is noted that the KCMSD is a large bureaucracy in which the policies accepted at the top levels are not rapidly filtered down.
Purchasing and Procurement
The District began the fiscal year with a serious problem in providing in a timely fashion needed supplies, materials, and equipment for magnet programs to be opened in the fall of 1991. This was an unfortunate repetition of previous years' lack of performance after repeated reassurances from the administration that all would be ready for the opening of school. Several of the new magnet programs were seriously compromised and the promised educational experiences were not provided due to this shortcoming in the purchasing/procurement operation. The Education Subcommittee supported extensions of deadlines and sanctions so that essential equipment could be provided to the schools, and KCMSD could be held accountable.
It is very important to note that the KCMSD administration responded with much greater attention, seriousness and rapidity to this punitive action which had financial teeth than it had in the past to repeated resolutions of disapproval and censure. In its previous actions, the Education Committee has attempted to avoid impact on the plaintiff children more than on individuals and departments which had fallen far below acceptable levels of performance in implementing the court orders. Unfortunately, the instance in which a stiff sanction was applied to those most responsible for the poor performance demonstrated that action is required and that pious words and stern verbal admonitions alone have a very limited effect.
In response to the shortfalls in the system of purchasing and procurement, the administration instituted important personnel and process changes. Some of these had been proposed from within the administration in the past, and some suggested by the courtfunded study conducted by Deloitte & Touche. The Education Subcommittee, as a result of meetings with relevant personnel in purchasing, is hopeful that the difficulties experienced in the past will not be repeated this fall or in the future. The administration of the KCMSD can be given credit for moving to correct what was a serious and ongoing problem.
Relation of Administration to the School Board
The new administration has been skilled in obtaining the cooperation and support of the Board of Education of the KCMSD. This is a positive development. Too much energy and attention in the past have been given to working out of various political agendas at the expense of sound educational practice. The close working relationship between the Board and administration brings coherence to policy and decision-making.
On the other hand, too friendly a relation could, in theory, result in the loss of the oversight function which the Board must perform. With this possibility in mind, the DMC
17

needs to continue to act in an assertive manner to maintain the integrity of the court orders and the magnet programs. Certainly a coo perative and non-confrontative spirit should continue to mark the interaction of the administration and the DMC, but the DMC will continue to maintain its monitoring roll and independence as an arm of the court.
Review of LRMP Programs and Renewal
As the first period of the implementation of the LRMP came to its conclusion and was extended, the administration began to review the educational and desegregative effectiveness of the various aspects of the LRMP. Although data and evaluative reports were available, additional time was requested to sort out which factors made for effective programs and which did not. The process was conducted by a team with representatives of the instructional side of the administration and fairly independent p articipation of the Testin g and Evaluation division.
In reviewing the success of present LRMP magnet themes and producing designs for modifications of the LRMP, the administration has insisted on a strong leadership role as matching the responsibility which it has for the performance. The caution here is against an overly top-down approach imposed on schools and patrons without their participation and adherence to the proposals. The administration should be aware that success of any program depends on the ownership of that program b y those who will have the day-to-day responsibility of implementation.
Proposed Magnet Themes
The Education Subcommittee will be assertive in monitoring the proposed magnet themes and other refinements of the LRMP as the KCMSD's proposals are reviewed in the coming months.
Intervention Programs
This year the KCMSD saw a number of programs aimed at addressing the needs of the lowest achieving segment of the student population. In societal terms, the need here is great. The potential loss of talent and the expense of dealing with the results of failed educational systems through other governmental agencies has been well documented. In terms of delivery of an educational program too wide a spread of achievement levels in one class can make any instruction difficult.
The District has allowed private agencies to enter two middle schools with an intensive intervention program based on low teacher to student ratio, high commitment to the project by a selected instructional staff, and one-on-one mentoring. The model is not unlike the School-Within-A-School (SWAS) program which has functioned for some time in the District. Like the SWAS program, the intervention programs have had success in terms of increased academic achievement and in the attitudes of the student participates.
18

Unfortunately, budget cuts necessitated by shortfalls in KCMSD operating funds have resulted in elimination of many intervention programs. The success of such programs warrants restoration as soon as funding is secured.
Cost Containment in CIP
In the course of this year the KCMSD reviewed a number of plans for new school buildings which were headed for large budget overruns. The Education Subcommittee reviewed and took no exception to the modifications as not having significant impact on the delivery of the programs to be housed in the spaces modified. Not unexpectedly, there continues to be some difference of emphasis between the educators most closely responsible for implementing particular programs, and planners with responsibility for the overall capital improvements plan.
There is always a tension between the cost savings associated with accepting the design for generic facilities into which magnet programs must later be fit, and the somewhat costlier process of driving the design by a specific educational program. The Education Subcommittee continues to prod the administration from time to time of the need for the integrity of magnet programs in facilities, personnel and program.
Achievement
Improved educational achievement has not been accomplished at an acce p table rate,, considering the infusion of generous desegregation funding into the KCMSD. ITBS scores reports for 1992 for the KCMSD show a stagnant achievement level with only minimal signs of improvement at the lower grade levels and some signs of decline evident. The KCMSD must accelerate its efforts to increase student achievement with the realization that the desegregation plan requires both desegregated schools and improved educational achievement, both must be vigorously pursued. The KCMSD cannot continue year after year to fall short of achievement goals as desegregation funds continue to be provided for this purpose.
Performance on the part of the KCMSD relative to assessment on standardized tests data is disappointing. After seven years of the desegregation program, it is obvious that hope for and expected improvements in the standardized test area has not occurred. The KCMSD should be complemented, however, for noted district-wide improvement at the K-2 level but, unfortunately, these improvements in standardized test results are not adequately continued in the upper grades. This pattern of improved district-wide K-2 performance on standardized tests presents an immense opportunity for the KCMSD in the future and it is incumbent upon the KCMSD to modify the upper grade curricula and instructional approaches (especially at the middle and secondary school level) to ensure that these students who are increasingly arriving at school performing at or above national norms on standardized tests do not continue to fall further behind in performance on these tests as they attend school in the KCMSD.
19

Grade and Year
GradeThree 1987 1988 1989 1990 1991 1992
GradeSix 1987 1988 1989 1990 1991 1992
Grade Eight 1987 1988 1989 1990 1991 1992
GradeTeti 1987 1988 1989 1990 1991 1992

Comparison of KCMSD and State of Missouri Average Scale Scores on Missouri Mastery and Achievement Tests by Grade Level, 1987 through 1992

Reading/Lang, Arts KCMSD State Differ.

Mathematics KCMSD State Differ.

Science KCMSD State Differ.

SocialStud./Civics KCMSD State Differ.

258 300 -42 268 315 -47 275 328 -53 267 323 -56 274 321 -47 281 323 -42
253 300 -47 258 308 -50 255 321 -66 244 310 -66 225 296 -71 241 308 -67
263 300 -37 281 322 -41 278 326 -48 282 322 -40 272 318 -46 271 323 -52
258 300 -42 258 315 -57 274 324 -50 288 335 -47 273 313 -40 274 313 -39

256 300 -44 264 318 -54 275 323 -48 278 330 -52 289 326 -37 289 339 -50
259 300 -61 274 332 -58 264 339 -75 274 355 -81 267 347 -80 274 349 -75
245 300 -55 265 336 -71 269 335 -66 280 346 -66 270 331 -61 264 335 -71
254 300 -46 260 313 -53 270 330 -60 270 327 -57 278 326 -48 291 338 -47

250 300 -50 251 311 -60 282 344 -62 278 347 -69 290 344 -54 301 364 -63
242 300 -58 262 332 -70 260 344 -84 284 375 -91 268 352 -84 254 347 -93
245 300 -55 264 337 -73 277 345 -68 295 357 -62 271 339 -68 285 365 -80
251 300 -49 262 326 -64 265 322 -57 271 330 -59 282 327 -45 298 348 -50

256 300 -44 262 325 -63 284 337 -53 282 346 -64 286 336 -50 275 336 -61

247 300 -53

261 321 -60

254 322 -68

267 335 -68

257 330 -73

Nc)

251 322 -71

258 300 -42 271 325 -54 273 325 -52 275 327 -52 259 315 -56 265 324 -59

262 300 -38 261 314 -53 263 311 -48 271 316 -45 268 302 -34 273 307 -34

Median Reading Grade Equivalent Scores on the Iowa Tests of Basic Skills and the Tests of Achievement and Proficiency
Kindergarten through GradeTwelve within the School District of Kansas City, Missouri, 1986 - 19921

Grade

School Year 1986 1987 1988 1989 1990 1991 1992

K

K.9 1.0

1.1 1.2

1.2 N/A N/A

1

1.7 1.9

1.6 1.7

1.8 1.8

1.8

2

2.4 2.4 2.5 2.5 2.7 2.6 2.7

3

3.4 3.5 3.3 3.3 3.4 3.5 3.5

4

4.1 4.1

4.2 4.3

4.2 4.3 4.3

5

5.1 5.1

5.2 5.3

5.3 5.2

5.4

6

5.8 5.8 5.8 5.7 5.8 5.8 5.8

7

6.5 6.5

7.1 7.1

7.1 7.0

7.0

8

7.4 7.4 8.0 8.2 8.3 8.2 8.2

9

7.7 7.6 7.7 7.9 8.2 8.2 8.1

10

8.3 8.3

8.8 9.2

9.0 9.1

9.1

11

9.7 9.4 9.4 9.7 9.7 9.7 9.7

12

N/A 9.5 9.9 10.1 10.0 10.7 11.4

1 The ITBS (Level 5) does not have a reading subtest at the kindergarten level.

National Norm
K.7 1.8 2.8 3.8 4.8 5.8 6.8 7.8 8.8 9.8 10.9 12.0 12.6

21

i
Median Mathematics Grade Equivalent Scores on the Iowa Tests of Basic Skills and the Tests of Achievement and Proficiency
Kindergarten through GradeTwelve within the School District of Kansas City, Missouri, 1986 - 1992

Grade
K 1 2 3 4 5 6 7 8 9 10 11 12

School Year 1986 1987 1988 1989 1990 1991 1992

K.7 K.8 K.8 1.1

1.1 1.1

1.1

1.7 1.8

1.8 2.0

2.1 2.1

2.1

2.7 2.7

2.9 3.0

3.1 3.1

3.2

3.7 3.7 3.5 3.5 3.6 3.7 3.7

4.7 4.7 4.6 4.6 4.6 4.6 4.7

5.7 5.7 5.4 5.5 5.5 5.5 5.5

6.6 6.6

6.3 6.0

6.1 6.1

6.1

7.1 7.2

7.0 7.1

7.0 7.0

7.0

7.9 7.8 7.8 7.9 8.1 7.8 7.8

7.8 7.8 7.8 7.8 8.0 8.0 7.8

9.0 9.0

9.4 9.4

8.9 9.1

9.1

9.4 9.8

9.8 9.8

9.9 9.9

9.9

N/A 10.0 10.7 10.7 10.8 10.8 10.8

National Norm
K.8 1.9 2.9 3.8 4.8 5.8 6.8 7.8 8.7 10.0 11.0 12.0 12.5

22

Drop-out Rates

The KCMSD provided baseline drop-out data for 1990-91*. This baseline data was based on records which the KCMSD acknowledges may have been incomplete. The data provided also did not disclose tracking of inter- or intradistrict transfer students. The 1990-91 report indicated a 15% yearly drop-out rate for high schools and 3% for middle schools. Data for 1991-92 have not, as yet, been provided to the DMC.
Suspension Rates

A review of the suspension rates shows great disparity from school to school. At

the middle school level, short-term suspension rates range from 2.3% of the student

population having been suspended for at least one day, to percentages as high as 55.6. High

school suspension rates vary from 7.2% of the student population to 45.9% being suspended

for at least one day. It should be noted that these percentages do not include in-school

4_ suspensions. The KCMSD should concentrate efforts district-wide on discipline that will

j-ferfli t address the requirement of an environment conducive to learning on the one hand without

fret/40oIt

excessive
f KCMSD

exclusion of
district-wide

students from the learning environment.
is suspending Black students at an unacce

It is also noted that the1 p tabl y higher rate than

)1 ii`Ite White students. Efforts concentrated at the site level, with input from students, parents,

iii ii and patrons, may facilitate this effort. Opportunities to explore such efforts ma y be
II present in the form of the new School Instructional Plan approved by the Court as part of

the Year VIII Effective Schools Program.

Middle Schools
School
Bingham Central King Lincoln Middle Northeast Nowlin Robeson Rogers

1991-92 Suspension Rates**

Long Term*** Short Term****

0.9

45.6

4.1

55.6

1.9

31.8

0.6

11.9

0.0

2.3

2.9

43.7

0.7

29.7

3.6

29.2

Report of School Dropouts, 1990-91, KCMSD, August 1991 ********M*LeLomnosogs,tSeortfumodneteondtPaDlayicsoecrmipmelinnotreeBDoaatrad, July 30, 1992 (figures do not include in-school suspensions)
23

KCMSA

0.2

Southeast

1.5

Westport

0.6

Middle School Avg. 1.6

Black

Middle School Membership 70.8

Long Term Suspension

84.1

Short Term Suspension

83.1

High Schools

Central

2.3

East

2.8

Lincoln Prep

0.5

MATHS

1.8

Northeast

1.1

Paseo

1.4

Southeast

2.6

Southwest

1.0

Van Horn

1.6

Westport

1.2

High School Avg.

1.6

High School Membership
Long Term Suspension Short Term Suspension

Black
70.4
93.5 87.1

44.0 29.8 44.5
33.5
White
23.4
11.5 14.6
31.7 24.5 10.2 45.9 12.2 17.2 26.4 23.1 7.2 24.8
22.3
White
22.6
5.7 10.2

The following section contains a global overview of the magnet themes, non-magnet schools, Early Childhood program, Summer School, Extended Day, Staff Development, and Effective Schools. Information contained herein is based on review of KCMSD documents, anecdotal information, school visits and observations.

24

1986-87 Elementary Magnets

Applied Learning Magnets School

Year Magnet Implemented M/NM

Racial Composition

85-861

91-922

M/NM

M/NM

Swinney Volker

1986-87 1986-87

49/51 54/46

53/47 66/34

61/39 61/39

Investigative Learning Magnets

Hartman Cook Marlborough

1986-87 1986-87 1986-87

53/47 55/45 55/45

56/44 56/44 76/24

63/37 60/40 63/37

The applied learning magnets emphasize hands-on experiences and field trips to support instruction in math, science, reading, language arts, and social studies. Student achievement remains at or above national norms in some areas. Also, because these schools were part of the initial 1986-87 magnet program, they maintain an extended day program which further enhances the applied learning skills via a variety of after-school instructional programs.

The investigative learning magnets focus on scientific inquiry, problem solving, and critical thinking skills. A major concern of these schools is the dwindling seating capacity for students who are to progress or feed into the higher grade levels. Hartman, the largest of the three facilities, has kindergarten and grade 1; Cook maintains grades 2 and 3 in a smaller facility, and Marlborough has the smallest facility which houses grades 4 and 5.

Enrollment at all of the 1986-87 elementary magnets is close to or at 60/40, although it must be noted that three of the five schools were less than 60% minority in 1985-86. The schools have a greater percentage of minority enrollment in 1991-92 than in 1986-87, the year of the initiation of the magnet program. All of these schools participate in the Math/Science District-Wide Task Force (DWTF), although frequent discussions have occurred to have these magnets form a liberal arts theme and develop a feeder pattern to Rogers Academy.

College Preparatory School
Lincoln College Preparatory Academy

Year Magnet Implemented M/NM

1986-87

66/34

Racial Composition

85-861

91-922

M/NM

M/NM

79/21

62/38

25

The college preparatory academy is comprised of two schools: the middle school for grades 6-8, and the high school for grades 9-12. This is the only KCMSD magnet school that restricts eligibility to students who achieve at or above the national norm on standardized tests. The admission criterion for Lincoln Academy was reviewed in 1991-92 and the percentile requirements for eligibility will be continued in 1992-93. Discussions also continue relative to the inclusion of additional admission criteria such as a minimum grade point average and faculty recommendations.
The academic program continues to receive national and state reco gnition, and then students can earn college credits through the International Baccalaureate degree. A serious problem that students, faculty, and parents had to address in 1991-92 was the escalating tension between racial and ethnic factions which reinforced the need to expand the curriculum and school activities to encourage cultural diversity. The problem was exacerbated by the reassignment of the principal to another facility, but a new principal has recently been appointed and it is hoped that the instructional team will pursue cooperative efforts to ensure a multicultural learning environment.

Advanced Technology School
Metropolitan Advanced Technology High

Year Magnet Implemented M/NM

1990-91

75/25

Racial Composition

85-861

91-922

M/NM

M/NM

87/13

82/18

This is a single theme program that is offered at the high school level. The curriculum has three areas of emphasis: transportation, construction, and the service industry, with 16 potential areas of career concentration. In 1991-92, all students must take a career exploration course and, upon completion, may take basic skills courses in cosmetology, garment design, construction, automotive repair, and food service.

In 1991-92, only students in grades 9 and 10 were enrolled in the advanced technology program. One improvement was the installation of a computer network for the three computer labs set up last year. Also, program staff vacancies were finally filled which should enable MATHS to begin enhancement of its vocational curriculum with more advanced technical courses. Other issues which have affected theme implementation include: ongoing efforts to support the tracking of purchase requisitions for theme instruction, the lack of an advisory committee or involvement with a DWTF, and the lack of entrepreneurial and internship activities.

Agribusiness School
East High

Year Magnet Implemented 1991-92

Racial Composition

85-861

91-922

M/NM

M/NM

71/29

82/18

26

This first year magnet high school program is a school which appears to be off to a good start. But it is noted that the minority student percentage has increased by 11% since 1985-86. The agribusiness curriculum has a broad-based instructional program that encompasses "hands-on" learning activities, entrepreneurial and marketing classes, an internship program, and an opportunity to participate in Future Farmers of America.

This agribusiness theme is closely related to a second program at East High School, the environmental science theme. Shared resources include a 100 acres lab, a Land Lab, a Food and Fiber lab, and two greenhouses. Much effort has been displayed by program staff to encourage community involvement in the development and use of these resources. The agribusiness theme also actively participates in the environmental science DWFF and has encouraged the elementary schools to visit its outdoor facilities for hands-on science activities for students.

Business and Technology

School

Year Magnet Implemented

Racial Composition

85-861

91-922

M/NM

M/NM

Westport High

1991-92

84/16

92/08

This is a single theme program that is offered at the high school level. The opening of school in 1991-92 proved to be difficult for Westport primarily because the principal was not appointed until August and several administrative staff positions were vacant. In addition, the business program has been hindered by the physical limitations imposed by the ongoing building renovation, the construction of a new wing and some site-based administrators who have only the most limited knowledge in the magnet theme.

In 1991-92, the building administration focused on establishing a safe high school environment and locating many instructional supplies delayed because of poorly identified stored items and problems in the Purchasing Department of the KCMSD. The recent hiring of a program administrator and coordinator of instruction were critical for evaluating program weaknesses and recommending curriculum and staff changes for 1992-93. The existing program emphasizes secretarial courses and many teachers have been assigned with no certification in the respective subject areas. Program staff efforts have focused on identifying equipment and technology requirements to support the theme and drafting proposed changes to expand the scope of the instructional program. It is noted that this school lacks a theme knowledgeable principal.

27

Classical Greek
School
Paige Elementary Pitcher Elementary Woodland Elementary Robeson Middle Central High

Year Magnet Implemented M/NM

1990-91 1989-90 1989-90 1990-91 1991-92

59/41 41/59 67/33 85/15

Racial Composition

85-861

91-922

M/NM

M/NM

n/a 38/62 60/40 n/a 99/01

68/32 53/47 65/35 85/15 74/26*

With the opening of the new Central High Classical Greek magnet, the theme now should have an articulated K-12 program. Most of the elementary schools can be characterized as stable environments with renovated or new facilities and instructional programs that emphasize language arts, reading comprehension, and writing skills. For Satchel Paige Elementary, however, 1991-92 meant moving into a new facility and facing the obstacles of placements above planned program capacity, a third principal in two years, limited clerical support, and numerous transportation problems.

The Robeson Middle School for Classical Studies maintained a split campus in 199192, while a new facility was under construction. Implementation of theme objectives has been limited due to the physical restrictions of the temporary facilities, although exercise equipment and a wrestling coach were added this year. There also appears to be limited coordination in the instructional emphases articulated at earlier grade levels, and the condition of the temporary facilities has detracted from recruitment and meeting desegregation goals. Yet, despite these obstacles, the staff appears to have maintained its commitment and enthusiasm for the program.

The Central High Classical Greek Studies program began its first year of implementation at its new facility. The showcase building has unique physical development areas including an Olympic size pool, weightlifting training, wrestling and gymnastic rooms and many interscholastic or year-round athletic training activities. Several issues, however, delayed the theme's implementation such as late or missing classroom supplies and physical development equipment, administrative and teaching staff vacancies, damaged or incomplete construction of the physical education facilities, and the lack of procedures for handling student discipline. Although the high school program is only in its first year, the rigor of the Classical Greek curriculum will require KCMSD to ensure adequate transition and tutorial support to ensure that students are successful and eligible for athletic competitions.

The theme has a very active DWTF and has worked in 1991-92 to address issues such as the scope and sequence of curricula, feeder patterns, and the Olympic Development Program. The theme vision offers students a rigorous academic program and requires participation in a year-round training program or interscholastic (seasonal) sports. A major limitation is that Olympic development resource personnel are currently required to teach

28

a full load of general physical education classes, therefore, they have limited time to recruit and develop a training program. The DWTF has requested that additional physical education teachers be hired to enable resource teachers to develop and pursue the Olympic development aspect of the theme.

Communications School

Year Magnet Implemented M/NM

Racial Composition

85-86191-922

M/NM

M/NM

Attucks Elementary Troost Elementary New West Elementary Westport Middle Westport High

1989-90 1989-90 1989-90 1990-91 1991-92

80/20 96/04 65/35 91/09 83/17

89/11 97/03
n/a 84/16 84/16

77/23 87/13 51/49 92/08 83/17'

The three elementary schools in this theme have enhanced their instructional programs by focusing on writing (journals, classroom and student stories, and school newspapers) and reading activities. Students are becoming proficient on the computers and utilize word processing programs to support their writing efforts, and each school has many unique theme activities such as a morning news program, storytelling programs, parent/child reading activities, etc.

Westport Middle has had many obstacles to deal with in 1991-92. Both new construction and renovation occurred and required the school to maintain a second facility for some of its students. In addition, the school principal was reassigned shortly before the opening of school and an interim principal served most of the school year. Overall, the program continues to improve and much of the construction and renovation is near completion which should allow staff to implement strands of the instructional program next year.

This is the first year of implementation for Westport High School, which also appears to be progressing modestly toward the establishment of a communications program. While most of the building renovation was completed during the summer, the construction of a new wing has required the cafeteria to be temporarily located in the gymnasium, some doubled-up classrooms, and a temporary library. Video and television equipment had to be borrowed and temporarily installed to compensate for the administrative delays by the KCMSD Purchasing Department. Also, staffing shortages and hiring delays have required altering proposed course offerings. As noted earlier, this school continues to have a principal who is not adequately knowledgeable in the theme.

The Communications DWTF has provided support to the middle and senior high programs and has encouraged staff cooperation and common inservice to improve theme infusion and teacher knowledge.

29

Computers Unlimited
School
Banneker Richardson Central Middle Central High

Year Magnet Implemented M/NM

1990-91 1990-91 1987-88 1988-89

67/33 91/09 86/14 96/04

Racial Composition

85-861

91-922

M/NM

M/NM

n/a 98/02 98/02 100/0

63/37
83/17 78/22 84/16

This is the first full year that Banneker is in its new facility with state-of-the-art classrooms that have a computer workstation/desk for each student. Richardson has an attractive facility that is designed with four to five computers in each of its classrooms, as well as two computer labs for student access.

Central Middle offers numerous computer electives for students, but is plagued by limited seating capacity and is unable to accommodate program continuation from students in the feeder schools. The high school program at Central moved into its new facility in 1991-92. The success of the program was hindered by student placements over the planned seating capacity which resulted in limited classroom space and computer access for students. Program staff must be commended for their efforts to accommodate students which included moving the library and resource computers to classrooms and borrowing eq uipment and computer software until new purchase orders were processed.

The Computers Unlimited DWTF has provided the support to make this theme attractive and members have worked cooperatively to promote the instructional benefits of this theme. Discussions in 1991-92 focused on the importance of feeder patterns to ensure clear articulation and program sequence for grades K through 12.

Engineering and Technology

School

Year Magnet Implemented M/NM

Van Horn High

1990-91

62/38

Racial Composition

85-861

91-922

M/NM

M/NM

52/48

62/38

This is a single theme high school program that emphasizes engineering theory and design by using advanced technology for hands-on experiences in the areas of computerassisted drafting (CAD), robotics, and aerodynamics. Students also participate in special projects such as bridge building as part of the engineering design requirement. Van Horn has been recognized b y several universities and several students have received top honors in area engineering competitions.

In 1991 -92, the building construction and renovation were completed enabling the staff and students to concentrate on improving student achievement. Ongoin g problems with the internal design of the computers purchased by the KCMSD in 1990-91. however,

30

have affected program implementation and restricted the number of advanced engineering electives offered.

Van Horn participates in the Computers Unlimited DWTF which provides the program administration with access to information on advanced technologies. Since the program is designed to encourage students to pursue engineerin g career opportunities, the formation of an advisory committee comprised of industry leaders and university personnel may also enhance thematic objectives and solidify internship opportunities.

Environmental Science

School

Year Magnet Implemented M/NM

N. Rock Creek Elementary Korte Elementary Knotts Elementary Trailwoods Elementary Nowlin Middle East High

1987-88 1987-88 1988-89 1990-91 1989-90 1990-91

51/49 46/54 90/10 62/38 64/36 80/20

Racial Composition

85-861

91-922

M/NM

M/NM

44/56 37/63 99/01 n/a 46/54 71/29

55/45 55/45 76/24 57/43 64/36 82/18

The elementary schools in this theme can be characterized by lots of hands-on instruction, outdoor classroom activities, and field trips. In addition, each school has unique environmental projects and student activities such as recycling, zoo partnerships, and earth awareness day. The middle school program focuses more on the physical sciences and restricted the number of field trips in 1991-92 to emphasize classroom instruction and staff cooperation. The high school also maintains two greenhouses and shares resources with its second theme, agribusiness.

The Environmental Sciences DWTF has attempted to develop curricular materials to ensure scope and sequence for grades K-12. Member schools are also encouraged to utilize the facilities and resources of the high school, particularly the Land Lab and greenhouses. A major concern for this theme is the need to attract teachers who are theme knowledgeable to enhance instruction and student achievement.

Foreign Language/Global Studies/International Studies

School

Year Magnet Implemented M/NM

Fairmount K-3 Franklin Elementary Longan Elementary Melcher 4-5 Moore Elementary Mt. Washington K -3 New West Elementary

1987-88 1987-88 1987-88 1988-89 1987-88 1987-88 1988-89

41/59 91/09 72/28 61/39 82/18 46/54 69/31

Racial Composition

85-861

91-922

M/NM

M/NM

18/82 95/05 72/28 55/45 79/21 28/72 n/a

53/47 87/13 67/33 62/38 81/19 58/42 63/37

31

Sugar Creek K-3 Central Middle Northeast GlobalMiddle Southeast High

1987-88 1987-88 1990-91 1991-92

Foreign Langua ge Magnets

49/51 86/14 64/36

36/64 98/02 50/50 99/01

56/44 78/22 64/36 95/05

The foreign language program for grades K-8 offers instruction in French, German, and Spanish. At the elementary level, the program is well organized with significant evidence of theme infusion. Students speak the target language, perform in public through singing or dancing, and participate in various field trips. Entry to the foreign language elementary program is restricted to kindergarten and first grade enrollments; however, a language lab and target language instruction are provided at fourth grade at one school to encourage new enrollments.

The program at Central Middle is a traditional curriculum that is hindered b y staff shortages, placement of students with no foreign language proficienc y , and a curriculum that has no exploratories or electives.

This is one of the most complex themes in terms of administration, student placements, teacher recruitment, and student achievement; nevertheless, it is incumbent that the KCMSD develop guidelines to measure student achievement in the theme and the language proficiency re q uirements as required in the LRMP.

Global Studies

This program is an alternative feeder pattern for foreign language schools with a curriculum that emphasizes continuation of foreign language instruction and an interdisciplinary program of world geography, cultural diversity, conflict/resolution, and global environmental issues. Despite planning task force efforts to develop a unique theme with a middle school curriculum, actual program implementation has been minimal. Student .lacements above .lanned seatin: ca acit the need to attract theme knowledgeable staff, and a split campus have all affected the integrity of the program.

International Studies

The international studies program is in its first year of implementation at Southeast High School. The curriculum of the program emphasizes interdisciplinary instruction in multiple foreign languages, world cultures, and exploration of careers through various strands in politics/law, health care, and business/marketing. Enrollment is extremely low (17)+.

The staff appears to have remained optimistic and enthusiastic about the theme despite ongoing building renovation, late arrivals of instructional materials and equipment, and staff vacancies including the program administrator. Enrollments for next year should

32

improve as the District has indicated that this is a targeted program for its 1992-93 recruitment campaign. It is also critical that the sco pe and sequence be improved at the middle school level so that better feeder p attern coordination and language proficiency occur.

Health Professions School

Year Magnet Implemented M/NM

Racial Composition

85-86 191-922

M/NM

M/NM

Southeast High

1990-91

96/04

99/01

95/05

This theme continues to improve in its second year of im p lementation with a curriculum that em phasizes science, math, and health care careers. The strengths of the program include theme knowledgeable staff, an excellent internship program, and well coordinated field experiences at area hospitals and medical colleges. Pro gress toward desegregation at the school continues to be minimal.

In 1991-92, some impediments to successful program implementation include 300 additional contingency-placed minority students in the theme above desegregation ratios, ongoing building renovation, and incomplete medical laboratories and training classrooms. These issues have probably contributed to Southeast's inability to meet its desegregation goals.

Latin Grammar
School
Carver Elementary Garfield Elementary Pinkerton Elementary King Middle

Year Magnet Implemented M/NM

1990-91 1989-90 1988-89 1990-91

61/39 62/38 60/40 87/13

Racial Composition

85-86 191-922

M/NM

M/NM

n/a 54/46 94/06 98/02

57/43 61/39 65/35 77/23

The Latin Grammar theme has a grade K-8 program that has received strong Central Office support to meet instructional objectives, coordinate student activities, and meet desegregation goals. All of the theme schools have worked cooperatively to encourage educational competitions and to develop learning outcomes in Latin, as well as the cultural and historical aspects of the theme. This year, Garfield Elementary has concentrated on acquiring much needed teacher and administrative supplies, raising morale and establishing comparable standards with its sister elementary schools. King Middle, with support from the KCMSD, continues in its aggressive and successful desegregation efforts.

One issue of concern for this theme has been the perception and subsequent promotional recruitment campaign by the KCMSD that the Latin Grammar magnets are attractive to students with behavioral problems because of the structured educational

33

environment. Members of the Latin Grammar DWTF actively worked with the Marketing and Recruitment Office to revise future promotional activities to promote the college preparatory aspect of the instructional program. Other staff concerns are the enforcement of the uniform policy and better articulation of the high school feeder pattern for this theme.

Law and Public Service School
Northeast High

Year Magnet Implemented M/NM

1987-88

59/41

Racial Composition

85-861

91-922

M/NM

M/NM

52/48

66/34

This is a theme school with three major emphases: law and law enforcement, public service, and fire technology. In addition to these areas of study, students must also complete coursework in urban studies and information processing.

The program has operated for six years with an administrative and teaching staff that has remained stable. The program has no student internshi p program and no tracking of the number of students who pursue careers or post-secondar y education in the theme areas. Also, there are few advanced program electives available to students, and the proposed theme certification requirements approved by the planning task force of Northeast were never submitted for Board approval and, therefore, never enforced.

Liberal Arts
School
J.A. Rogers Middle

Year Magnet Implemented M/NM

1990-91

65/35

Racial Composition

85-861

91-922

M/NM

M/NM

n/a

61/39

Rogers Academy is a single theme middle school with a liberal arts curriculum for grades 6-8. At the opening of school, the KCMSD again assigned a new administrative staff to the building: a principal, an assistant principal, a curriculum coordinator, a coordinator of instruction, a counselor, and clerical staff. This change in personnel has resulted in a more stable environment and the hiring of additional theme qualified resource staff has enhanced the instructional content of the program. However, tension between members of the School Advisory Committee, teaching staff, and communit y members, as well as the possible reassignment of current teaching staff, have impeded theme implementation. The hiring of a magnet coordinator specifically for the liberal arts theme would encourage a more cohesive articulation of the multi-disciplinary curriculum at Rogers to ensure more cooperative efforts next year.

34

Math/Science

School

Year Magnet Implemented M/NM

New GladstoneElementary Three Trails Elementary Wheatley Elementary Weeks Elementary Bingham Middle Lincoln Middle Southeast Middle Southwest High

1989-90 1989-90 1989-90 1989-90 1987-88 1987-88 1987-88 1988-89

58/42 43/57 91/09 95/05 78/22 65/35 98/02 81/19

Racial Composition

85-861

91-922

M/NM

M/NM

n/a 42/58 87/13 95/05 77/21 77/23 99/01 76/24

55/45 52/48 75/25 92/08 86/14 75/25 97/03 90/10

The elementary magnets have a well articulated program that includes access to hands-on activities and many instructional resources such as a science laboratory and an animal laboratory with an outdoor kennel. Program articulation does not continue to the middle and senior levels, however, as there is little coordination of scope and sequence for the math/science curriculum.

In 1986-87, all three middle school facilities were renovated and a computer lab and network were installed. There has been no subsequent effort to revisit this program to evaluate its changing technical needs, staff requirements, instructional improvements or a plan to ensure proper building maintenance. As a result, the curriculum has been limited by the inability to acquire math/science software because the existing computer hardware is no longer manufactured and repairs have hindered student computer usage. Furthermore, the math/science middle schools have yet to implement the distinguishing characteristics of a middle school program such as advisement, exploratory courses, and team teaching. These curricular limitations have also affected the high school program at Southwest which has replaced a number of advanced math/science courses to accommodate the large enrollments in introductory courses.

Enrollment at the middle schools has been affected by the contingency placements of the last few years so it is difficult to assess theme attractiveness. This is the only KCMSD magnet theme with three middle schools and enrollment data suggest trends towards resegregation.

In 1991-92, the Math/Science DWTF focused on revamping the science program to introduce an aerospace component next year. No effort was made to continue the work of last year's task force to ensure program articulation for grades K-12 in the math/science theme.

35

Military Science School
Northeast High

Year Magnet Implemented M/NM

1989-90

59/41

Racial Composition

85-861

91-922

M/NM

M/NM

52/48

66/34

This military magnet program is an Army-based ROTC program with emphasis on military science classes, leadership drill classes, and hands-on military activities such as marksmanship and physical development. According to the LRMP, the military magnet program was intended to provide students with the opportunity to participate in a military program that is distinguishable from non-magnet Army ROTC activities of other Kansas City, Missouri schools.

The scope of the program has been restricted by the limited participation from other branches of the Armed Forces. Students, however, have benefitted from the theme knowledgeable instructional staff and concentrated daily involvement in military procedures and physical development.

Montessori School
Faxon Holliday

Year Magnet Implemented M/NM

1988-89 1990-91

61/39 61/39

Racial Composition

85-861

91-922

M/NM

M/NM

97/03 n/a

64/36 62/38

The Montessori theme is the only KCMSD program that has expanded because of its successful educational program and theme attractiveness to now include two schools. Theme implementation for the pre-kindergarten to grade five program has progressed in an orderly and timely fashion with a strong level of cooperation between school staffs. One frustration in 1991-92, however, has been the inability of the KCMSD to recruit certified Montessori resource teachers, with each facility having two to three staff vacancies.

Faxon began the school year in its new facility; Harold Holliday continued in its temporary facility while construction continues on a new building. The enrollment data at both schools indicate strong support for the Montessori theme, despite the temporary facilities where both schools initiated their programs.

Last year, this theme was assigned to the Liberal Arts DWTF for coordination of common inservice and staff development and to encourage a possible feeder pattern between the Montessori elementaries and Rogers Academy. In 1991-92, these two schools formed a stand alone theme.

36

Visual and Performing Arts

School

Year Magnet Implemented M/NM

New Gladstone Elementary Longfellow Elementary Meservey Elementary Phillips Elementary KC Middle School of Arts New Paseo High

1988-89 1988-89 1988-89 1988-89 1987-88 1989-90

61/39 75/25 92/08 87/13 62/38 60/40

Racial Composition

85-86 1

91-922

M/NM

M/NM

n/a 79/21 98/02 98/02 n/a 100/0

55/45 70/30 80/20 74/26 63/37 50/50

This theme currently has program articulation for grades K-11. The elementary schools are designed to expose and develop the interests of young students to the visual and performing arts through hands-on experiences, field trips, school productions, and guest artists. As students progress through the theme, their individual talents and proficiency skills in specific career areas should enable them to compete for admission to the high school program or to easily transfer to another theme.

There is a disparity in the racial com position of the student body between the middle and senior schools. The DWTF has begun to examine this issue to determine if talented minority students are encouraged to continue their studies, the impact of contingency placement, and any other contributing factors to explain the decline in minority enrollment.

Overall, parent and student satisfaction appears to be higher at the middle and senior levels, perhaps because of the expanding curriculum and increasing opportunities for student achievement in the visual and performing arts. Neither of these programs are located in permanent facilities.

Non-Magnets - Elementary
School
Askew K -5 Bancroft K-5 Blenheim K-5 Border Star K-5 Bryant K-5 Chick K-5 Faxon Annex K-5 Graceland K -5 Greenwood K -3 Holmes K-5 James K-5 Kumpf K-5 Ladd K-5 McCoy K, 4-5

Racial Composition

85-86191-922

M/NM

M/NM

58/42 97/03 99/01 74/26 75/25 96/04 n/a 99/01 59/41 95/05 43/57 100/0 99/01 46/54

64/36 97/03 99/01 81/19 72/28 98/02 100/0 99/01 94/06 99/01 35/65 97/03 98/02 59/41

37

West Rock Creek K-3 Scarritt K-3 Whittier K-3

42/58 47/53 42/58

34/66 65/35 57/43

There are 17 non-magnet elementary schools whose curricular emphasis is on traditional core subjects such as math, reading, language arts, and science. These schools were initially intended to be alternative choices to specific magnet themes. After six years, however, it is apparent that the KCMSD has done little to build on the success of many of these elementaries and has kept them in a "holding pattern." Many of these schools show trends toward resegregation and enrollment often reflects the neighborhood housing pattern where these schools are located (nine schools [Bancroft, Blenheim, Chick, Faxon Annex, Graceland, Greenwood, Holmes, Kumpf, and Ladd] with a 90%-plus minority population, and two schools [James and West Rock Creek] with greater than 60% nonminority enrollment). Many facilities have been poorly maintained and are in need of major repairs, while others experience a shortage of supplies and resources. Despite these obstacles, the non-magnets have attempted to meet students' educational needs through federal funds, parent and community involvement, and staff dedication. In fact, 13 nonmagnets receive Chapter One funding to improve educational services to economically disadvantaged students.

The District's stated commitment to adhere to a 60/40 racial balance in kindergarten has also affected Faxon Annex by requiring the school school to remain open (100% minority) to accommodate the increased minority enrollments at the primar y grade level. With the planned closing of Kumpf in 1992-93, the District will need to carefully address how it intends to continue its desegregation efforts without negatively impacting minority students and address long range plans for increasing the seating capacity for its increasing primary grade enrollments.

Early Childhood

The early childhood component of the desegregation plan is comprised of Parents as Teachers and early childhood screening.

Parents as Teachers is a home-based program to provide parents of newborns to age three with information to become more knowledgeable about the stages of development and activities that encourage cognitive and developmental growth. The program services about 4,000 families.
The Early Learning Center (ELC), located at Pershing, is in its first year of operation. The program enrollment is 1,400 (87% minority, 13% non-minority) and provides two one-half day sessions to children identified as having language or motor skill developmental delays. Potential students for this program are identified from Parents as Teachers, childcare centers, and parent inquiries. A developmental screening is administered to approximately 4,000 three- to five-year olds to determine eligibility. Since there are over 700 students on the waiting list, the termination of renovation at the

38

Linwood Early Childhood Center due to infrastructure difficulties has further exacerbated the space limitations of this successful program and requires review by the KCMSD in the near future. Central administration leadership in this area during 1991-92 has been Questioned b y the DMC. and monitoring in this area will continue.
Summer School
The 1991 summer school program had a total of 5,224 students* in remedial, developmental and enrichment activities for grades K-12. The remedial and developmental components are for students who have been retained or identified as needing assistance because of low test scores or high absenteeism. Enrichment consists of theme specific topics, advanced electives, or college preparatory course work. Overall, while some enrichment is offered at the elementary level, the overall emphasis by the KCMSD, particularly at the middle and senior levels, was on remediation.
There were many administrative im provements in the coordination of the summer school pro gram. In previous years, temporary principals were hired for the summer who may have been unfamiliar with a facility and available resources, and many lacked the theme knowledge to coordinate an enrichment program. In 1991, the regular school year principals were utilized to oversee the summer school programs in their respective buildings. This improved the site-based administration of the program and appeared to reduce the disciplinary problems that characterized the program last year. However, the selection of principals had no correlation to the quality or scope of the program course offerings, since the decision for site selection was driven by the need to use air-conditioned facilities, or at least those with air-conditioned administrative offices. Excluding exceptional education programs, the selected summer school locations were as follows: elementary schools (13) - Banneker, Franklin, Gladstone, Pitcher, Pinkerton, Franklin, Cook, Hartman, Marlborough, Swinney, Volker, Border Star, and West Rock Creek; middle schools (2) - Bingham and King; senior high schools (2) - Northeast and Southwest. In addition, the Lincoln College Preparatory Academy offered classes for its students.
1 Thirty-First Annual Report of the Progress of Desegregation in the Kansas City Public Schools 2 Thirty-Seventh Annual Report of the Progress of Desegregation in the Kansas City Public Schools
KCMSD January 29, 1992 Student Census Report * KCMSD Average Summer School Enrollment and Attendance, KCMSD Research Office, August 1991
39

While a curriculum guide was developed to articulate the summer school goals, the courses offered were basically an extension of regular school year classwork with an emphasis on remediation in core subjects. Some theme courses were offered only at the respective magnet schools and were labeled as enrichment. The summer school program did not offer a "sampling" of ma gnet courses from various themes, advanced courses or exp loratory electives, mini courses to prepare for college exams, or summer internship opportunities — all of which may enhance the District's objectives to provide desegregatively attractive programs to recruit new students.
The selection of teaching staff continued to present some obstacles to the success of the 1991 summer school program. In the elementary schools, many of the staff were teaching at their home school or at least within their theme. However, because there were only two middle and two senior high schools, teaching staff at these schools were selected from a pool of eligible candidates in particular disciplines rather than magnet themes. Principals also continue to be frustrated by union contract restrictions which basically forbid teachers to return to a school the subsequent year unless there are no other candidates. In 1991, site-based principals did have an opportunity to select teaching candidates form the District's pool of eligible applicants, and a formal teacher evaluation was also initiated and submitted at the end of the summer.
Staff Development
A review of inservice proposals and attendance at both common days, site-based summer and year-round workshops revealed some theme workshops were excellent and others had no apparent utility, e.g. advanced computer classes, hands-on theme specific activities, reading strategies and the performing arts, etc., contrasted with lectures in auditoriums that included memorization of the pledge of allegiance in Latin, a review of a reading manual for two to three hours, lectures on Tourette Syndrome, photography and dancing classes, and personal time off. Anecdotal information indicates that, in most cases, teachers believe the school-based inservice is a more practical effort to identify specific problems at a school. The many site-based workshops visited were outstanding and included topics such as multiculturalism, African-American history, teacher facilitation, and cooperative learning.
Adequate site-based evaluations are not conducted by the KCMSD to review appropriate topics and speakers, measure the quality of workshop content, or correlate inservice with improvements in instruction or the level of staff theme knowledge. Evaluation of common days staff development is an assessment of teacher satisfaction. Little or no data are collected or compiled to assist site-based committees with their efforts to plan workshops or select speakers that would enhance theme objectives or concerns.
40

In summary, the calibre and focus of any KCMSD insery ice varied from theme to theme and school to school. It is evident there is little cohesive planning between theme planning documents, DWTF efforts, or effective schools plans. The recent transfer of monies from the schools to a Central Office fund su ggests that the site-based training and workshops will be coordinated b y Central Office staff and could reduce the effectiveness of inservice, p articularly if the teachers and principals lack direct involvement.

Extended Day

Non-Magnets

Magnets

Askew Border Star Greenwood James Scarritt West Rock Creek

Banneker Carver Cook Faxon Montessori Fairmount Franklin Gladstone Hartman Holliday King Knotts Longan Longfellow Marlborough Melcher Weeks Woodland

Meservey Moore Mt. Washington New West NRC/Korte Paige Phillips Pinkerton Pitcher Richardson Sugar Creek Swinney Trailwoods Three Trails Volker Wheatley

There are 39 extended day programs in the KCMSD with morning and afternoon sessions. The intent of the program is to provide students with additional classroom time in theme-related or instructional activities, tutorial assistance, and creative or physical development activities. Also, because of the extension of school hours, another objective was to utilize this program to attract non-minority parents to KCMSD schools.

A review of the individual program materials for the extended day program, as well as observations of facilities, indicate that the type and scope of instruction, the availability and rigor of tutorial services, access to computers, musical instruments, physical development materials, and art resources varied from school to school. In many cases, students were able to learn to play a musical instrument, take advantage of theme infusion via mini courses in cooking, drama, art, and computers. Other classes reinforced skill building in math and reading. However, several schools focused on movie watching, worksheets and unstructured pla y in gymnasiums or outdoor facilities. A fixed bud get for all programs, regardless of enrollment, and the lack of assigned personnel at Central Office to supervise and evaluate the Quality and scope of school offerings may account for the lack of consistency in the extended day program.

41

VIDT SUBCOMMITTEE REPORT TO THE COURT FOR YEAR SEVEN
Members Carl DiCapo, Chair
Ed Stoll Ed Phillips

6
VIDT Subcommittee Report to the Court for Year VII
The Missouri City transfer plan continued its success in 1991-92, despite some minor transportation difficulties at year's beginning. Three vacancies (created by graduations and a transfer) will be filled for the 1992-93 school year by sibling placements, maintaining the ten student participation. The Superintendent of the Missouri City School District has resigned and his cooperative and his supportive efforts will be missed. The DMC, however, looks forward to the same level of cooperation from the new administration.
Some prospects were developed in 1991-92 relative to a possible transfer program with the Grain Valley School District. However, public criticism ended any realistic chance for implementation of a plan in the immediate future.
As the VIDT Subcommittee awaits a ruling from the Eighth Circuit Court of Appeals regarding the Plaintiffs North Kansas City and Independence VIT plans, members of the VIDT Subcommittee continue to serve as full voting members assigned to the Education, Budget, and Desegregation Subcommittees.
The VIDT Subcommittee continues to seek the assistance of the State in pursuing a VIT plan, and continues to be troubled by what appears to be a lack of genuine commitment to the establishment of a viable VIT plan on the State's part. The VIT challenges the State to pursue innovative alternatives to establish a VIT plan, such as the establishment of state-funded magnet schools in the suburban Kansas City metropolitan area designed to attract minority enrollments from the KCMSD. The State could seek guidance from other jurisdictions which have initiated similar programs and begin an aggressive effort that would assist in moving the KCMSD toward its desegregation goals.
43

 
 ea-

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

4v

EDNA SCOTT, Parent and Next Friend

Of EARLETTA HAYES and VERA JONES, Parent

and Next Friend of JEFFREY CHARLES, Indi-

-vidually and 'On behalf of all persons

similarly situated, and THE SOUTHERN

CHRISTIAN LEADERSHIP CONFERENCE, a corp-

oration, on behalf of itself and as

Representative of its Members in the City of )

Kansas City, Missouri,

tE
A

Plaintiffs, )

vs.

t i)

No ...0t11/94)---w-

KANSAS CITY MISSOURI SCHOOL DISC' KCT
BOARD OF EDUCATION OF THE KANSAS CITY SCHOOL DISTRICT; '

HENRY P. POINTDEXDER

610 East 45th Street '7

40,00,0)0.

Kansas City, Missouri;
, EUGENE BROWNE ,Serve c/o

e

Kansas City Board of Educatjbn

1211 McGee Street

Kansas City, Missouri

ROBBIE TYLER 1630 Topping Kansas City, Missouri

DELLA HADLEY, Serve c/o Kansas City Board of Education 1211 McGee Street Kansas City, Missouri

MARY ROBERSON, Serve c/o Kansas City Board of Education 1211 McGee Street Kansas City, Missouri
BARTON HAKAN 643 West 67th Terrace Kansas City, Missouri
SAMUEL J. CARPENTER 3218 East Meyer Kansas City, Missouri
FATHER EDWARD WARNER 3229 East 28th Street Kansas City, Missouri

CHARLES BRISCOE, Serve c/o Kansas City Board of Education 1211 McGee Street Kansas City, Missouri;
As Members of and constituting said Board of Education, and
DR. ANDREW S. ADAMS, Superintendent of Schools, Kansas City School District,

Defendants.

COMPLAINT FOR INJUNCTIVE RELIEF AND DAMAGES

Plaintiffs allege:

I

oe'ZurOdiction of this Court is invoked pursuant • :„
to the provisions of 28 USC §1314(1), (3) and (4) , this

being a suit for injunctive relief and for damages authorized

by law, 42 USC S1983, tobe brought to redress the depriv-l-

tion undertolor_of state statute, ordinance, regulation,

custom'' or usage of rights rivileges and immunities secvlred

by the Constitution and laftof the United States, or by any
4-
Act of Congress providing fOrt1Ce equal rights of citizens.

Jurisdiction is invoked to secur and protect rights guar-

,

le

^t,

ant

e

e

d

by

the

Thirteenth --**.'

A,•;,.me_n., dmenttQN1

\ the
.,,

Constitution

of

the United States and by Ehe 'equal protection and due process

clauses of the Fourteenth Amendment to the Constitution of

the United States and 42 USC 51981.

The amount in controversx exceeds $19 000.00.
k

Plaintiffs Earletta Hayes and Jeffrey'ehgrles are black, minors, citizens of theUnited Sta tes and of the State of Missouri and residents of theCitir of Kansas City, Missouri. Each said plaintiff is a and pupil attends or N, expects to attend a secondary public 4chool main tained and, operated by the defendants herein. Plaintiff, Earletta Hayes, is in the eleventh grade and presently attends Central Senior High School, which has a 100% black student population. Plaintiff Jeffrey Charles is in the ninth grade and presently attends Manual Annex, which has a 100% black student population; and expects to be promoted to the tenth grade at the close of the current school year, and under present regulations, policies, practices, customs and usages of defendants, will in September, 1973 enter Manual Senior High School, which has a 100% black student population.

M1;

,041aintiff Southern Christian Leadership Confria--

ence (SCLCris a membership corporation, organized and

ing under and by virtue of the laws of the State of Georgia.

,'Said plaintiff is a national civil rights organization and

has members and affiliates in each of the fifty states of

the Union. Said plaintiff maintains a local chapter in Kansas

City, Missouri. Atany of said plaintiff's members in Kansas City, Missouri are black students presently attending, or who

will be attending, the junior high schools and senior high 0
schools maintained and operated by defendants. Many of .:aid

plaintiff's members are parents df such students. The mem-

bership of plaintiff SCLC is open to persons of all raceE
and ethnic groups who subscribe to its cbjectives and purposes. However, the overwhelming majority of the members of

said plaintiff are black. The primary objective and purpose

of plaintiff SCLC is to strive through lawful means'to secure

and protect the civil righs of black persons directly, and

indirectly the civil ri

of all Americans.,. Tne chief

means by which this plaintiff seeks to achieve its objective

and purpose is through the Courts.

III

Plaintiffs Earletta Hayes and Jeffrey Charles,

by their parents and next friends, pursuant to Federal Rule

of Civil Procedure 17(c), bring this class action individually

and on behalf of all other black pupils similarly situated,

pursuant to Federal Rule of Civil Procedure'23(a) and (b). The class represented by these plaintiffs is cOmposed of

(1) all black pupils now enrolled in the sixth grade and

attending primary schools maintained and operated by the

defendants, and who will in September, 1973 be enrolling in

racially segregated and racially imbalanced junior high

schools maintained and operated by the defendants; (2) all

black pupils presently enrolled in racially segregated and

racially imbalanced junior high schools maintained and operated

3

by the defendants, and who will re-enroll in such School::: in September, 1973; and (3) all black pupils now enrolled in racially segregated senior high schools maintained and operated by the defendants, and who will be re-enrolling in such schools in September, 1973. Plaintiff SCLC brin1,1 this suit, pursuant:ofto Federal Rule of Civil Procedure 23
on behalf of itself and as legal representative of its ricrtbers in Kansas-City, Missouri, many of whom are black pupils presently attending, - who will be attending, racially
, segregated secondary schOolSmaintained and operated by defendants. Plaintiff SCLC also brings this action on behalf of its members who # parents of children attending,
40"
or who will be attending.4 racially segregated secondary
schools maintained and operateeciby def,enNdants. The class
herein represented consists of thousands of persons and is thus so numerous that joinder of all members is impossible. There are questions of law ;; and fact common to the class. The claims of the representative parties plaintiff are typical of the claims of the class, - and the r presentative plaintiffs will fairly and adequately protect the interests of the class. Adjudication of the claim; chi the represents-tive plaintiffs would as a practical matter be dispositive of the interests of other members of f theclass*ho at.e..5.n,.o,t, parties to this action. The defendants here pave acted.
tI
or refused to act on grounds generally applicable to the
f#
class, thereby making the injunctive reliefherein sought appropriate to the class as a whole.
IV Defendant, Kansas City School District, is a political subdivision, created, organized and existing under and by the Constitution and laws of the State of Missouri and the Charter of the City of Kansas City, Missouri. Said defendant is authorized and empowered to establish, maintain and operate, and at all times herein mentioned, has established,
4

ie;

ti

A41

/7

4

/ maintained and operated, a public school system for the pri-

41 ;4-

mary and secondary levels in Kansas City, Missouri.

•

V

...1'Defendant, Board of Education of Kansas City

School District, (Board of Education) is the duly created,

authorized and existing governing body of the defendant

.School District. Defendants Henry P. Pointdexder, Eugene

Browne, Robbie Tyler'Della Hadley, Mary Roberson, Barton

Hakan, Samuel.,J. Carpenter, Father Edward Warner and Char3es

Brisco are the duly appointed, elected and acting members

of, and constitute the said Board of Education. Each of

them is hereby sued

or her official capacity.

VI

Defendant Dr. Andrew S. 'Adams is the duly appointed

and acting Superintendent of Schools for defendant School

District, and has the responsibility and duty of carrying

out and executing the policies, procedures and regulations

of defendants Board of.Education and School District with

respect to the establishment, maintenance, and operation of

the public schools at the primary and.secondary level within

the City of Kansas City, Missouri.

I t

VII

cat

Defendants at all times herein mentioned, and 4
with respect to each and every act or faillAkeand refusaV

to act as herein alleged, have taken or refused action under

color of state statute, ordinance, regulation, custom or

usage.

VIII

Black pupils of the class herein represented constitute 50.2% of the total number of pupils in the junior high schools and senior high schools maintained and operated by defendants. The percentages of black pupils in racially segregated junior high schools and senior high schools which are now attended and which will be attended by plaintiffs Earletta Hayes and Jeffrey Charles, and the class which

theyrepresent, are as follows:

JUNIOR HIGH SCHOOLS

1,40'se,B in$g °'ham , aupior High

,0 „-ge° °Ce' 4taloYU•nV"i' or High

4 1/4

i Jun or High

e- r

•

Lincoln Junior Y:

4e

A.,
Northeast

Junior

40.gh

Ae/'

Junior: High 4 Southeast Junior

, 0, ,
SENI0i HIGH SCHOOLS

Central Senior High

,;. Ark,,
4ol't

East Senior High

Humboldt $dniQf High(

Lincoln Senor High

Manual Senior High.

McCune Senior High

Northeast Senior High

Paseo Senior High

Southwest Senior High

Southeast Senior High

Van Horn Senior High

West Senior High

Westport Senior High

PERCENTAGE OF BLACK PUPILS
2% 100% 99.9% 100% 3.3% 0% 85.5%
PERCENTAGE OF BLACK PUPILS
99.9% 24.7% 89.5% 100% 94.8% 68.4%
o
79.6%
3017% 38.0%

More than 80% of the total number of 41a:bk students attending public junior high schools in. Karisa$ City attend the above-listed racially segregated and racially imbalanced junior high schools. More than 75% of the total number of black students attending public senior high schools in Kansas City, Missouri attend the above-listed racially segregated and racially imbalanced senior high schools.
IX There now exists and has existed serious racial segregation and racial imbalance in the public junior high

4.

1 41'

Ifg•
/

40°'

407,04- schools and,gpdblic senior high schools operated, maintained . ,

.00

/

And4disteredby ..,

the

defendants.

This

racial

segregation

4 0 ' Y<
and.$0ArOa' ci• al

imb,,,a'4l,An*ce

has

been

caused,

promoted,

fostered,

maintained and enforced over a period of years by the requla-

Ow

4.'

, ',,

.

r

t47:igo .o-d nsa e,practiceos,

6 iies,
e

customs

and

usages-of

the

defen-

I

'Idants. Said raci4.1 segregation and racial imbalance has

-also

bee..n4e,bea..usé, d,

fostered,Npromoted, 0 '].

maintained,

and

en-

forced

over

a

perioeodf,'o.td,y' bat#s

.,.
by

actions

of

other

govern-

lk"
mental bodies

a.nd,•,' agenciO4

!),,
AitiOilg

these

policies,

practices,

-

customs And usages of the de pendants which have caused,

fostered, promoted, mair, jined and enforced racial segreaa-

tionandracialimbalance in the publra, junior high schools

1

4

4so%

"%

schoOW AO'
and public senio high

,

4''''
are

tk4h11e/4 1V4"lowinci:

i A.

The

drawingIof/school

zo`n,..e.0'

•
attendance

. boundary

lineI s

in

such

a

manner

as

to'

create, fast perpetuate, maintain, and

7 '''

enforce

ra6i21
V

segre

4ion

andi4 rac4i$

imbalance

, 4L

B. The failure and refusal etoord,.'r.Iaw or . red ay

school zone attendance" lineslin such a

i

f

s±

1,,,,W . SO k•o*„4.4,

manner as to end such rabi a,,l. segreg4,ation

and racial imbalance k,

0,0'40'0,0*

k d

I

i .0

C. Pupil assignment and transfer plies

,' f

and practices under which disp opOrtionate

11
numbers of pupils of one racial group are

i e:',0 .
i

assigned to attend certain scho
1
D. The failure on the part of defendants to

adopt and implement pupil assignment poli-

cies which would have resulted in the elim-

ination of racial segregation and racial

imbalance.

E. The location of schools and additions in
•
such a manner as to create, foster, promote,

maintain or enforce racial segregation or

-7-

•

or racial imbalance.

0p00' F. /he assignment of disproportionate numbers
,if
16r teachers of one racial group to certain

schools; the assignment of disprgportionar?.

Vibes of relatively inexperienced teach-

e±s to certain schools and policies which

permi andN!oencourage a high rate of turn-
•„': -i i
404'CiNi9e-offteachers in certain schools.
The faiigu atlas refusal on the part of
,tqt,
defendants_and their predecessors to take

any effècyive steps in the past to.. end grow-

' o'fr irgraiial seqre ,aatici and racial imbalance

" ip,"the sqhoo)fs in quCkston, despite knowledrre

e

1, 4 )

of such,segregation and imbalance, and despite

the consistent and constant urgings by citizens

I

and

cit1izens

groups, .,,

some

of

which

were

formed

by defer% ahts. D fridants h0,a'Ve \an affirma-

or

...Pe‘

,p7fr

tive mandatory legal duty to ed and overcome

,

‘

such racial segreOfion'ande:radia ,, imbalance'

,

,k

and have failed and refused to discharge said

/ 4(

t duty, and plaintiffs/an the classhei41

if
represented have 60enrinjureaconti4e to

-r

4

ik. .•

be injured thereby.

IX

Plaintiff Jeffrey Charles, and numerous other members of the class herein represented, dlx present regulations, policies and practices of defendants, will be

assigned by defendants to those racially segregated and rac-

ially imbalanced public junior schools herein listed. Said

assignment back to racially segregated and racially imbalanced

schools will further injure the hearts and minds'of plaintiff

Jeffrey Charles and said other members of the represented

class in a manner likely never to be undone. Plaintiff

Earletta Hayes and a large portion of the represented class

8

-

•

.4. • 4.76-•

Wu-
•

4 .‘

"
(
4,tfr - ...e

,'prbsen . attend the racially segregated and racially im-

0

,,,,,x?

* ‘

iee ;14 / balancectlubliat,senior high schools listed herein, and 11;,r1r"7

1(4'

0.''

o-f04d;':nefreengdualdattiso,., Os40d4p'lol lbiceieresa, spsrigancetidcetos,scuuchstoscmhosoalns din

uLic.c), Sert_LI--

berA.46734 an 14,7141 be continuously so reassigned until :Icy
a
av4 y'completed senioxAigh school. The racial segregatic,:. an d racialAmb,oaf Aance herei:p complained of is in clear
e
tion of the' Consti ution and laws of the United States.

; f All piaintifel ar, all members of the represented class

i suffered an40i44"eill.continue N I

suffer great . and irrepara

injury if this Honorable cd oes not grant the relict

herein sought.

40" ,
0...x. s

By rdasbn of

hheerreinn stated, - plain-

Iv

tiffs and the represent0 Mass have not received equal

educational opportunit, iels.a nd will not, in the future,

receive equal education) Opportlan#ies if the Honorable Court does not grant the 'elief herein sough.#t04'. klaintiffs

and de represented class have been and are beThtp.;denied
, 1,
equal protection and due process 4pf law guatanteeebythe ,"
I. Fourteenth Amendment to the United"Stfatiesidonstitution by '

I.; theenforcementsoftheregulationsrpo icies, practi,c`es .

:! I

customs and usages of defendants. The'` forcin - by defenda_ tslk,

of

plaintiffs

and

the

represented

‘,
class

to

a.ptriid

ve' racially'

i

segregated and racially imbalanced schools statrips all plain-

11

t t,

II tiffs and members of the represented class Wi0.1 an incident

'i
1.

and

a

badge

of

slavery

which

is

prohibited

1
bty

t
the

Thirteenth

Amendment to the United States Constitution.

XI
Black citizens throughout the United States of America, and particularly in the City of Kansas City, earn substantially less on a per capita basis than do, Caucasian citizens throughout the United States of America and in Kansas City, Missouri. There are substantially more black*

9

e
11-1.

J

•

aro. !..`k

•

citizens Op a per capita basis who receive some form of

/

public aspistance on an individual basis than Caucasian

United States of America and in

• „.Kansas Cit14 Missouri. On a population basis, there is a
"' or

disproport ately higher percentage of black citizens than

' ,A1

white,titizen, s

1,4

st
o' have

been,

are, and will be unemployed

11

„A

V •
throughout tbdUhied States of America and in Kansas .City 40-

M bliasaslopruilrimiha/rpy aarntiucusxoel' ac.to.ndAaydsiscphroooploprutipoinlsatderlyophigohutnuom f sbcehr:oofl

•

40"

and nevWa nd any institution of higher learning through-

'.4k,

..

m ouetntthioenvdyei VdncitoenddSittioantessaan4'`d,d49i#rerKc„t4-lybsaansdCpitryo,xiMmiastseoluy rcia. uTsheed

afore-
b l-

4 mi
deprivation ofequa, lOucational7Opportunity as herein cc.11•,•<,,

1.ained of. naintIff Ear10a Hayes 'and plaintiff Jeffrey

4*ft

,ii ,'

Charles,andth4represbned class, Mite been forced to ti

attend racially segregated and racially imbalance4 schools

K

under the statutes,

ihances, regulations, policies, prac-

t

tices, customs and usages-,made,mulgated,a ,enforced by

defendants as related in this complaint,, Said plaintiffs

and the class herein

represented

ha

e,0
v

”00 th0

s

been

deraed

equal educational opportunity and ,by reaq6n of such racial /
segregation and racial imbalance as erbi, n related,oandft,com-

I plained of, have been forced to wear A badge pf &very\ \
and have been placed in a positionlof genera 4lAn isatdvaps

the consequences of which they can never ese cape. By reason

of and as a direct and proximate result of th'ee aforesaid
conduct of defendants and their predecess0 orss,plaintiffs

h Earletta Hayes and Jeffrey Charles and members of the rep-

resented class have heretofore sustained and still suffer

severe emotional, psychological and economic injury and dis-

advantage. By reason of and as a direct and proximate result,

of the conduct of defendants herein alleged, said plaintiffs

and members of the represented class will not be able to

function and compete in this society on an overall equal

-- 1 Q -

›pting ith their Caucasian citizen peers. Many of the

te

.#bext of the'represented class will by reason of the condu

vs.0

, ko,''

/or'defe,ndants surfer the economic and educational disaciNia:-.Lsse

ages and deprivations heretofore indidated in this parr.g'1;:h.
$00'
_Said p-IgInti14s kapd members of the class, thus h,ave be:-, r, al-

read irreparably damaged and should be
';vr

compensated in lacin';:y

1,

da,f:5' mages, and
,1,,p

ar

e "'

entitledsto N.

injunctive

relief to prevent

;1

furthepIrreparable 0"

njury

Of

the

natur e

herein

alleged.

0*.

PI.A1ntiffs ha.ire4ncliTed and will further incur

substantial attorneys' fees 'and/ACOsts in the prosecution of

this suit to secure their constitutional rights and those

of the representedclasa.

.„040M4.14,„.„

I•
WHEREFORE, plaint i ffs pray udgment as followE,:

1. That procps may issue And be di•rected to

each of the defendants herein named, requiring them'to appear

t` and answer this Complain

2: That upon the fili.V"f this goMpUint,

this Honorable Court advance

this case o..4tohe e
0,,*

„zfe'

, and N **9f

order a speedy hearing according tw, q.aw4 ,

3. That this Court issue a preliminary in-iu_. ncl-ion
ordering defendants to promulgate, adapt, implement ATer4At. fully effectuate a plan for the elimi ation of rac i/al s, Ni....4kyv

gation and racial imbalance in all o the publi junior

high schools and senior high schools of KanasCity, Missouri

not later than the commencement of the scho o l term in Sept-

ember, 1973v

4. That upon final determination of this cause

the aforesaid injunctive relief be made permanent and, fur-

ther, that the defendants be permanently enjoined from

adopting, promulgating or enforcing any statute, ordinance,

regulation, policy, practice, custom, or usage which will

directly or indirectly result in racial segregation or rac-

ial imbalance in the public junior high schools and public

-•■•••■•■••■.....

I
'or

46'

r;

Ir #e
/

s,, enior, ,,l,, l, igh

schools

of

Kansas

City,

Missouri;

40

5.3.That the Court award plaintiffs Earletta H.; c

and Jeffey Charles, each, and each pupil member of the

class they 'represent, the sum of FIFTY THOUSAND DOLLARS

6.

- ($50400.04 ) - a0inst defendants as damages heretofore sur4 v
; -'61:h& by reason of the conduct of defendants and their pre-
„0„
-decessors as .0related her4in; ,),'
Thap,04ipCOurt grant plaintiffs their ccf , L.,,

of this suit,,,iricltding!retasonable attorneys' fees

3V' ' That this'Court retain continuing jurisdicijon

of this 6ause to the end that.it may issue further orderF!,

as necessary, to the edd 'terminating permanently, racill

secregation and raâislimbalance.min the public junior hic,h

schools

and

„.1

,

senior'

// , bhools

of

,-* , Kahsas

City ?

Mis-s- ouri;

and

Ii 4'
8. That this Curt grant such other and further

relief as it deems just!.,

S M."NREED, II
100 Home Savings Building 1006 Grand Avenue Kansas City"MisO 221-278841 ,i0eP
ATTORNEVPOR PLAINTIFFS

- 12 -

 
 DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

REGION VII

FEDERAL BUILDING

601 EAST 12TH STREET

KANSAS CITY. MISSOURI 64106
May 5, 1977

OFFICE OF THE REGIONAL DIRECTOR

DRAFT

Mr. Robert Wheeler,• Superintendent

Kansas

Missouri School District

1211 McGee Street".:..

Kansas" City', Missouri 64106

"Dear Superintendent Wrifelk-:

TfehaetOuOrffefisceofftohreC. biveisleRgirgehgtastihdnasPclaonmdpelevteelodpietsd

review by the

of the School

essential District

of-Kansas City, Missouri, 9;4 st*rnitted to this Office on March 28,

1977, ;,:lregret tpoinfopeYottthat the Plan, taken as a whole,

does not desegregate Dist 's schools to the extent required

by currentlegal,aeandards. ear, general cammnts an page 5

of yourlAapreOrding equal educational opportunity do not address

the specific findings of denial *equal services and opportunities

to minority students set forth,,,in our letter of findings of noncan

pliance dated April 14, 197and later presented at your District's

Title VI administrative enforcenient hearing. For these and several

other reasons enumeratecibelaW involving the inclusion in your

Plan of other District policies relatedvto-.student assignment practices,

I must advise youthat,,the PlanidoeS not meet the cartpliance requirements

of Title VI of the-tip:4a Rights Act of 1964. :A

V

e

A Desegregation Plan submitted. bWy your District rust meet the require-

ments for dPegregation set forth in the Supreme Court Decision

of Swann v. Charlotte Ner cklenbuig Board of Education, 402 U.S.

1 (1971). The starting point for rectifying unlawful segregation

is reassignment of students so that each school in the system approxi-

mates the ratio of minority to nanminori#Y1:-.students which exists

in the school system schools which have

aasstaudwehnatlera-.cWialeeinnrtoellrmpreentt

Swanmtb mean
characteristic

that in

excess'of plus or minus 20 percent of the Distridt7wideaVerage

are racially suspect. In the Kansas City pchocAroMist4att„yherck

the assignment of students has been foupeillecjally,egregative,'

by an administrative law judge, we believe.. that theecontinuation

of enrollment characteristics which exceed that standard are impermis-

.sihle so long as methods are available'whidhdante used to pirther.,,,,,,,

desegregate schools which have such enrollmatitcharacteristids._

We have concluded that methods are available in your Distkict,tO

duendseegrrryeogautrePmlaann.y more schools to a greatee4e,gree thanithaeachieved

CLERK U.S. DISTRICT COURT
E

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

•

/ Mr. Robert Wheeler

2

One of our analyses of student assignment practices under the Plan /Oompared the 4020 percent standard to the District's 67 percent
ntinari,W,,enroilnent to measure the effectiveness of the Plan. ,41'- We found that 8,828 of the 15,567 (57 percent) minority secondary
Students will iremain' in schools 98 percent or more minority in enrollment: CT tbe 7,849 nonninority secondary students in the District, 5,361 (68 percent) will attend secondary schools with
enrollments less'than 47 percent minority. Of the 13,635 minority elementary students, 8,441 (62 percent) will remain assigned to schools over 88 percentiminority in enrollment. Of the 7,133 nonminority
\elementary students,dn the District, 5,126 (72 percent) will remain assigned to schools less than 47 percent minority in enrollment.

An analysis iof the ,effect of-jthePlan cn the racial character of

4

indIvidUal schooleUsing'the'sane that prior to Plan,iirplerrentatiOn

t+--5240

percent standard reveals of the District's 65 elementary

schools have enrollments either less than 47 percent minority or

greater than 87 percent minority, and after the Plan is implemented,

49 of the'-'60 remaining elementary 4schools will have enrollments

outside of the acceptable range. Jkt the secondary level, 16 of

the 19 secondary schools operating prior to implementation have

enrollments either less than 47 percent minority or greater than

87 percent minority, and after Plaeimplementation, 15 of the 21

then operating seoondaryiachools4rilkhave,entLbrents outside

of the acceptahlelrampe. The,follOWing chart. 4111 serve to illustrate

this point for the\aeccndary Schools: ,§4

Pre-Plan

Within

Post-Plan

Within

% Minority '

+ 20%

% Minority

+ 20%

•4

School

Enrollment

Range

Enrollment

Range

Bingham Jr.

47

Leeds/Dunbar 32

East H.S.

45

Southwest H.S. 36

Westport H.S. 69

Northeast Jr. 26

Nowlin Jr.

4

Northeast H.S. 23

Van Horn H.S.

4

Central Jr.

99

King Jr.

99

Lincoln Jr.

99

Southeast Jr. 98

Central H.S.

99

Lincoln H.S.

99

X

53 ,

X

Closes

,53

X

01.' 43,4:

X

71. "

X

*34 44
/ 31 99 99 99
98'
99
a9

-7.•••

4,.••••4

4,...,4..

"7.^7,1•7'T ••.1,

/ ,

./d"t‘

eel"1e -2obelt 1,r 1h

DRAFT 3

Pre-Plan

Within

Post-Plan

% Minorit+Y2%0% Minority

Enrollment

Range

Enrollment

Within + 20% Range

„ Manual-H.S. „99

Closed

Paseo H.S. -' 99

99

Southeast U. 98

98

West H.s, 4,..- Ei

X

78

X

East„.Jr. eoe47

Faitviese7th

35

Harrison 7th

•e

35

Westport Jr. 40.0, a

\

69

X

0-
We have amitbad ,the charteillustrating the change in racial character

of the elementary schools because it similarly points out that

a minimal number of-'segregated schools have been eliminated under

the Plan.

„o, e
e

,."
e

4

We are encouraged by your choice of technig'ues (zone changes, pairing clustering, and grade reorganization) employed to gain the desegregation that your Plan acanpLishes; hover, 'e believe that limitations have been imposed whichohave/tignificantly curtailed the effectiveness of your effortS.,or example, the„Attendance zone lines established along the northerTvand uestern'edges of the inner city "minority corridor" in many iTlitaPdes continue to follow the lines of demarcation betUtenminorityjand norridnbrity resident- iAl patterns. As a consecit.ence, a number of virtually'all minority enrolled schools will share ocarAmOommdaries with schools that remain predominantly nonminarity 4 enrollment.

The pairing of five inner city blAdk elementary schools with predominantly

nonrdnority enrolled schools in the northeastern and easternextremi-

ties of the District indeed accdmplishes a,degree of desegregation;

however, the consequences of thekgetner in which such pairings

are accomplished renders these pairings unacdeptable,00-Spwifically,

two of the five minority schools have each been paired,wit./Vthreenon-

minority schools. Three of the minority schoolsilaye,'eadhApeen

paired with two nonminority schools. The obvious *Stilt of such

"split-pairing" is to provide a pool of„Ambdamihantly Otrminority

students in each instance, thus assuring

thelenrollment of

no single school will exceed 44 percent MinoritylanAhis 67 perce4to.,---,.„,

minority District. Further, ue find it particularly objectionable,

that in each and every instance of these splitipaihngs" the'acer

grades (one through four in most instances) are placed In .jtheA2 forrer

uhite schools, while the upper grades (five and six- in Host tames)

tab...To" ......siVe-••••••••••••••••••• •

DRAFT
,

, 44ft% Robet' ct Wheeler

4

4/0°4

,
are located in the five former black schools. The establishment of grade placements made in this manner causes, in every instance, the youngest ct,the childrentransported to be black, and the older
::drentransporteA„to be white.

Its the view Of thia' Office that a District has not fulfilled

its obligation tolAPcegregate its school system where there remains

a substantia13161arge number of schools which are either racially

isolated or Substanti;Olvdisproportionate in their racial composition

and which were part of a finding by the administrative law judge

lAof intentional segregative activity or a finding that the school

ls.avestigeofthedualschoolsystem.

-„

As I stated

methods areavailable to desegregate many

more schools in the District, tO a!greater degree than that accomplished

under the Plan Some, ofetheseibuild upon the pairing and clustering

proposed in your Plane rand include pairing of secondary schools,

redrawing attendance zones, and furthdi pairing and clustering

of elementary schools. As was pointed out to you at a meeting

with OCR regional officials on April 14r1977, it appears that

pairing of some secondary schocas would not create unreasonable dictance for secondary students to travel to school; yet such pairing

i' could produce a virtually unitary school systan at the secondary

level.

eife /0

N4

As noted earlier, a'nurber of radially isolated black elementary
schools share common attendance boundaries with,schools which are
predominantly ncnminority aft*. implementation of your Plan. Redrawing
attendance zone lines where such instances occur, and greater pairing of inner-city minority schools' w-4th nonminority schools at the east, west, and southwest edges of the District would maximize
opportunities for desegregation at the elementary level. t
Other District policies which have an impact on_ the student ssignirrent practices in your District were'dicsucsusesdedin an overview statement
at pages 1-10 of the Plan. Cur comments below address otir continuing
concerns in several of these areas which have not been alleviated in the Plan.

EQUAL EDUCATIONALAVPORIMITY

Ile find the District's position regarding the provision of equar'w6' educational opportunities expressed in the Plan to be unacceptahIer--4 The Plan fails to provide any remedial or corrective action to ' resolve the OCR findings of discrimination. Although - the adranistratiC4, Law judge held that the Department's evidence failed tc4rolje the

. • .• •-.^-

• -

.

-7.

•

•

•• • f, • . •

•1 • • • 'it-Mr

frt,',""

Mr,..„tobert Wheeler

'DRAFT 5

caltentions; we pgve appealed the findings regarding the quality of 0404' 4instru&tional'iei'Vices and educational programs offered ndnority

4etudents.

,"/\

400' 'The Plan ETTiide#•4.1or the continued operation of the unaccredited West High4School)with a projected totl enrolhmnt of only 279 students, 81 peroant of WhatVare minority. You have admitted that West will not offer'an edUi*tiOnal program comparable in scope and depth „,to that offered inotherehigh schools. The Plan also does not

address the issues of,oburse offerings and quality of instructional

services at the other minorityseccndary schools. For these reasons,

we helieve,Ahat4the continuee.

di g-crimi.0n4ator14y

treatment

of

minority

students

The apprOPriate . authority for the resolution of the equal services issue rests within,the administiLativetappeaLs procedure. Accordingly, we are unable teaccept your ' Offer to rely on the opinion of educational

consultarits,tb evaluate the Districeseducational program to determine

whether

offered free of disCrimihation.

INTEGPATION07.1F PAtULTY Atil?„AaMINISIPATION

The Plan correctly reporWthat 7.'. .....etheisrict took steps

to reassign teacherS . in4Uch a manner as to racially balance the

tenching staff in eaCh'school of the District". iriN 1973. 'That rPassign-

rent was effected t6icorrect thetast discrimitiatory assignment

of faculty to schools in a rahnet which supported the racial identifia-

hility of the schools based Oft the student enrollment. At that

time, faculty was reassigned4tolschools to establish a pattern

in each school which generally represented the District-wide racial

composition of elementary and secondary teachers. (Speci;ically,

the assignrent ret the ESAA Regulation waiver requirement that

eadh school would contain between 75 and l.Z5percent,of thelDistrict-

wide ratio of minority or nonminority tc.Achers.)

0°:

•

Since you indicated in your Plan that you will cohtin*tokassisg4.

teachers as you have in the past, ue hav!kPrevieVeqthe current

teacher assianment patterns by educational 0,16el' and we find that

faculty assignrents in the currant schpoleYear have reverted (through

attrition and new assignments) to a point at which these schoole'",,,,

ray once again he identified as intended for„,itudents of one-race....,

or another. In each of the District's 18 senior and junidr big

schools, the representation of minority fadtlty has changedeSince

the 1973/74 school year to rore closely represent the racial character

of the student body. The chart below illustrates thistpojnt with

regard to seven of these schools.

DRAFT 6

'S. ell°ol

1976/77 % Minority
students

1972/73

1973/74

% Minorityor%iMt in y

Faculty

Faculty

1976/77 % Minority Faculty

Central HI S. .:

99

70

t

Manual :Mt. A

99

68

Central J. LS N.

• 99

74

.M.L. King J.H.S.'-‘ 099:,

63

Lincoln J.H.S. '

99'

71

Van Horn H.S.

4

6

•Northeast H.S.

23 A

10

45

67

42

65

46

70

42

84

45

63

33

.22

33

23

Because theAastrict has violated the policy it adopted in 1973 to ,assure that faculty assignment would no longer be discriminatorily based n race, ad again appears to be improperly considering the race of a ,teacheroas a fact= invassigrarent, your commitment to continue this practice is unaccetable.

OPTIONAL

The policy statement in tpa Plan s s introductory material abolishing
all optional attendance zones - a device found by the administrative law judge to maintain segregatethichcols--dOes not identify which zones are being abolished, how/parents ai.A.,,sttidents will be informed, and hog you will enforce the policy Thesematters are significant because many "unofficial optional zones" haveexisted in the recent past, and at the Title VI administrative hearing District witnesses could not identify all optics zones which had existed.

Furthermore, the Plan itself Creates an optional zone for students in the Twain attendance area at the secondary level. Those students, who are nearly all black, will be transported under yout l,Plan to three white elementary schools l'in the Van Horn High Sdhddl attendance area. But at the secondary 'level, those'studentspare,siven the option of attending the Van Horn secondary schcols ort,returning to the all-black Southeast High School. It-seems unlikelirris your desegregation advisor, Dr. Holmes„agrmd,ithat yobt-Karils projection that 50 percent of the Twain^ stulents will attend 1±e Van Horn secondary schools is reasonabj.e2in the first few years after implementation.
41.k
In summary, the policy staterent lacks necessary options will be abolished and the Twain`-i?ptiai created under the Plan appears unworkable for the purpose it;ttiended.

I,
DRAFT
7
TRANSFER POLICY
A40000,'44T.4.h• e Plan provides that the present policy which prohibits all transfers ,00e4Which impedeedesegregation, except for exceptional circumstances, will he continued. In an effort to determine the acceptability of thisleature,of your Plan, OCR requested statistical data relating to the approximately 5,000 students who have transferred away from 000theixoneighborhOcdiachodls during the 1976-77 school year. Although
\ T....8have not reviewed the individual files of transferred students, o/Ima have determined that in practice, the District has violated the policy developed in 1973,. Further, the policy has been unofficially amendedtO inclie categories of transfers such as "continuation transferelotnd "adjustment4ransfers" (other than those previously defined) under which approximately 2,000 students attend non-resident schoOls. If the District is riot implarenting its previous agreement with the,,DeParprent about StUdent,tranfers, a policy which pranises to continue‘citirrent practides,,wpst be unacceptable.
Furthermore, your =talents onostatii4acal projections in the Plan estimate minority enrollments based upon resident students in each attendance area. The fact that approximately 10 percent of the District's students do'notätten4their-re,sident school because they are transferred tooenotherliChool,JruSt surely affect the validity of the-ttatiaiical rojctions fQr individual school enrollment.
‘' For the reasons stated, I 4avedetermined that your Plan does not satisfactorily remedy yourinoncompliance with Title VI. Despite this conclusion, I am convinced that your District can develop an acceptable Desegregation Plan. I trust that this explanation of the unacceptability of specific features of your Plan will be useful for you considering its mcdification. As always, my staff and I remain available to assist youin4ormulating aplan which will satisfy your District0eabligatip*under the law.
Sincerely,"

 
 June 1992

D.A. HOLMES ELEMENTARY SCHOOL Proposal for an AFRICAN CENTERED Theme School

PROPOSAL OBJECTIVE: To identify the mission, goals and rationale for the development of an African Centered Thema approach to urban educational reform infusing fundamental cultural precepts throughout the curriculum and teaching process of the D.A.Holmes CPIIon Elementary School.
RATIONALE: Curricular treatment of the African Amaerican experience in America had drawn attention to the fact that Africian Amaericans have historically played a crucial role in the development of the United States. This reality has been true from the first settlements of British colonists in Virginia, through the American Revolution and the Civil War, down to the present. More often than not, the unique place of African Americans has been misunderstood and this ignorance has inevitably produced hatred and fear. Psychologists have even discovered that a considerable amount of self-hatred and denial of their African roots exists with African American students who have not been taught of their African origins in ways that increase their self-esteem, and self-worth. Because education plays such a vital role in the formation of our youth, the impact of African Americans can not be ignored or disguised under the banner of "multicultural " education or "world/global" studies. It deserves the same level of respect to exist as a primary focal point as an Asian studies magnet proposal acknowledges the need for a singular point of reference with a complementary theme-based language infusion.
D.A. HOLMES REVISED MISSION STATEMENT: The administration recognizes that the name of the school may eventually need to be changed to maintain consistency with an African Centered theme. Nonetheless, the proposed revised school mission statement shall be:
D.A. Holmes Elementary School aspires to be a model of academic excellence in urban school reform educating the whole, child using an African Centered context to accelerate the intellectual, emotional, physical, and moral development of the student combined with a culturally appropriate instructional pedagogy and curriculum designed to empower, stimulate and motivate in a child-centered environment condusive to leadership and responsibility.

THE AFRICAN CENTERED GOAL: The goal for the African centered theme school is based on the AFRICAN principle of collectivisrnrwe nese; interdependency; oneness of being/nature and a sense of all things being one and of the same spirit/essence. The educational process is repositioned as a means to an end to address the African centered precept of "the meaning of being and becoming', essentially the issues of inner discipline and responsibility to self and others becomes the focal point. The primary goal therefore is:
To develop self conscious, fully functioning members of society who are competent, confident (can do attitude), conscious (aware of who they are and their responsibilities), committed (willing to work for a better tomorrow/world), and contributing human beings.
The African centered perspective demands a different way of thinking. Cognitive educational strategies using skills, information, and knowledge are placed within the context of being. Affective educational methods examining the knowledge of self and self-potential are explored in the context of becoming (i.e. who you are, what you want to become, and what stands in the way of it). The African centered perspective advances the cognitive and affective approaches towards a functional application exploring how one can apply his knowledge toward negotiating the multicultural, political and socio-economic realities of his world.
THE AFRICAN CENTERED OBJECTIVES: The objectives are derived from the AFRICAN cosmotology stressing that everything is interconnected and what people of African decent have done in the past is connected to what we can do in the future. The achievement of the objectives Is contingent upon conscious efforts to re-educate, reorient, and restore accurate cultural and historical values as a foundation to goal attainment without sacrificing conventional achievement The objectives are designed to address the fundamental questions 1) who am I, 2) am I really who I am, and 3) am I all I ought to be. The educational process is a context. Inherent in this perspective is the administrative responsibility to raise the teacher's social awareness, social proficiency and cultural competence.
THE AFRICAN CENTERED PERSPECTIVE
THE INTENT: The intent of the African Centered Perspective is multifaceted:
1. To promote fully functioning (perfected) caring member of society; 2. To enhance the psycho-cultural competencles; 3. To develop a sense of identity/belonging, sense of power, security, trust,
permanence, test of courage, character and commitment; 4. To increase the resilience (ability to rebound from disappointments, anger, etc.), protective factors (feeling safe in a safe environment) and inculcation (knowing others care and caring for others).

THE CONTENT: The content will revolve around the following four areas:
1. Human perfectibility 2. Academic excellence/mastery of core competencies 3. Infusion of African perspectives and contributions throughout the curriculum 4. Internalization of the highest African values
THE PROCESS: The process will utilize the following five activities:
1. Thinking/analyzing activities 2. Feeling activities (drama, dance, classroom informal discussioin meetings, etc.) 3. Doing activities (emphasizing cooperative learning) 4. Language/proverbs/folktales/rap
THE OUTCOMES: The following six outcomes are anticipated:
1. Self conscious, fully functioning member of society 2. Competent (striving to be 'Mo Better) 3. Confident (can do mentality) 4. Conscious (aware of who he is and his responsibility) 5. Committed (willing to work for a better world) 6. Contributing
AFRICAN CENTERED PROPOSED METHODOLOGIES
1. To develo p a strona sense of collectivisrewe ness" and interdependence.
METHOD: creative cooperative learning, classroom meetings, community projects, parent/student homework assignments, schoolwide activities such as Spelling Bees, Math Bees, Science Bees, etc., meaningful involvement of parents & elders as volunteers in the classroom, greater promotion of Success Day, Bankers Day, Parents Day, Fathers Day, etc. to pull the community into the educational process and the school environment opportunities for older students to serve as helpers/tutors to younger students, increased activities to demonstrate commitment to and preservation of high community qualities, student regrouping, African Clubs, Business Clubs, Political Clubs, and clubs devoted to diverse and specific skills such as mechanics, painting, journalism, law, science, medicine, etc., teacher "sponsorship' approaches to problem solving, parent support classes, Rites of passages activities, opportunities to demonstrate collective responsibility, cooperation and harmony, increased opportunity to experience issues related to the preservation of life, and classroom student/teacher governance In establishing and monitoring classroom norms/discipline, incorporation of strategies to resurrect, cultivate and surrogate the patenting role and function especially for the African American male child through inclusion of groups such as the Coalition of 100 Black men, Simba, the National Urban League, Black United Front, and Greek Fraternity mentoring programs, and the Year 2000.

2. T9 enhance the psycho-cultural competencies.
METHOD: increase classroom discussion sessions to promote analytical skills, immersion in experiences rather than observation of experiences, cultural infusion throughout each discipline, symbols, images, texts that uplift self-image, develop a sense of power and control over one's behavior, constructive conflict resolution opportunities, youth involvement in planning, assessing progress, and solving problems, emphasis on developing intrinsic motives, opportunities to distinguish from right and wrong, increased activities to work in harmony with others, classroom climates that allow students to be free from resentment when punished or wronged, to expanded fun/discovery in learning activities through regularized rapping and dancing to encourage converting literary passages or biographies of historical figures into rap lyrics and perform them for the class, expansion of the Junior Achievers entrepreneur concept, theme related academic varsities, History Marathons and History Decathlons, Black History Bazaars, rejecting punishment and rewards in favor of teacher/student generated strategies geared toward internalization of prosocial African centered values and norms, greater use of culturally appropriate literature-based reading programs that stimulates discussion about values and offers examples complementary of and which value differences, opportunities to experience and practice flexibility and caring for self and others.

3. To increase the resiliencpe,rotective

and inculcation.

METHOD: emphasis on practicing perspective-taking skills, consensus building opportunities, expanded activities to practice sensitivity and empathy, open communication, trust and academic assertiveness through academic competitive teams, self-knowledge activities, right and left brain development activities,
expanded use of functional routines, rituals, scenarios, and processes for high achievement and internalization of values and the African centered perspective, consistent teacher monitoring of student's reading and mathematics skill mastery process, increased opportunities for daily successes and multiple methods to examine practical application of knowledge and information through stories, examples, etc., inclusion of materials and techniques for diverse learning styles, pacing and progress, expansion of school day and other needed times during the day for tutoring and small group instruction for students who need reinforcement, reteaching, and remediation, increase in student attendance patterns, utilization of highly structured classrooms moderated by affection and consideration, nongraded, team teaching activities to help students learn more effectively, opportunities to develop commitment to being generous or respectful, increased opportunities for.. educators to practice diverse kinds of discipline and instruction in the context of a warm, nurturant, and empathic relationship with students.

EVALUATION CRITERIA CONSIDERATIONS
1. Thinking activities 2. Feeling activities 3. Doing activities 4. Language/proverbs/folktales 5. Collective Responsibility/Community involvement activities
EVALUATION CRITERIA COMPONENTS
1. Cognitive education - skills, information, knowledge. 2. Affective education - knowledge of self & self potential; who are you; what you want
to become; and what stands in they way of it. 3. Functional education - how one can apply his knowledge toward negotiating the
culturaVmutticuitural, political & socio-economic realities of his world.

 
 1
COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE COMMUNITY BASED SCHOOLS
AN ALTERNATIVE TO EXPANSION OF THE LONG RANGE MAGNET PLAN
EXECUTIVE SUMMARY The Coalition for Educational and Economic Justice (CEEJ) is a grassroots community-based organization formed for the purpose of advocating educational and economic equity. The organization is composed of a cross-section of people within the community, including parents, professionals, teachers, school administrators, and entrepreneurs. We have monitored educational and economic activities for the past five years. Although we are appalled by the findings, we want to make it clear that the CEEJ strongly supports the desegregation of the KSMSD and the continuation of basic school improvement components such as: (1) reduced class size, (2) staff development, (3) AAA status, (4) full-day kindergarten, (5) early childhood education, (6) extended day, (7) supportive services, (8) capital improvements, (9) the salary package, (10) summer school and (11) effective schools program. These are essential if we are to remove the vestiges of the illegally segregated system and achieve unitary status. However, we are opposed to an expansion of the LRMP at this time. Data available to date indicate that the Long Range Magnet (LRMP) component of the plan is not succeeding in its goals of integrating the classrooms and improving academic achievement levels. The data are clear: a). Schools are still 75% minority (and approximately 70%
African-American.)

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b). Achievement levels languish significantly below acceptable standards.
- Missouri Mastery Achievement Test (MMAT) scores are below 1987 levels below
- ITBS scores of KCMSD students are below big city norms - Sixth-grade students who ostensibly have been under the
plan their entire school lives remain significantly below and behind their peers in urban, suburban, and private schools.
c). Grade retention, suspension, expulsion and drop-out rates of African-American students are soaring.
The principal barometer for determining unitary status MUST be academic achievement levels and related factors such as college matriculation, graduation, retention, expulsion, and dropout rates, NOT arbitrary and insignificant racial quotas. Our position is that the vestiges of the illegally segregated "separate but equal" system will be sufficiently removed when our students are performing at levels comparable to those of their private and suburban school peers, regardless of the racial composition of the classrooms. If white students who attend overwhelmingly white schools in environments that some consider racially isolated can succeed and excel, our children can reach similar levels if given adequate facilities, effective curriculum and instruction, developmental support mechanisms, and culturally relevant materials. Those who believe otherwise adhere to the notion that whites are inherently intellectually superior to African-Americans.
The LRMP has failed to restore the victims of discrimination to the positions they would have occupied in the absence of segregation. The effort has created a set of contradictions

3
around the rights of African-American children, and the desire to achieve integration while principles of equity and equal opportunity have been compromised. It is time for the KCMSD to turn to an approach that is conducive to all children receiving an eduction that not only grounds them in the basic skills of reading, writing, and arithmetic, but also helps them develop the thinking and analytical abilities necessary to influence, control, and where necessary, change their world. In addition to giving children these fundamental skills, the educational process must also teach them the value and strength of their history and culture. A new paradigm is essential.
An alternative plan designed to create school cultures that foster the educational, social, and psychological development of our youth must be implemented. This can be accomplished by establishing community based schools with restructured educational delivery systems that utilize a social action and intervention model to improve interpersonal relations within the classroom; open the process to a variety of inputs; build parental involvement; and integrates the community into the learning process. The basic components of the community based schools are a restructured and culturally relevant curriculum, instructional methodology sensitive to the needs of the students, staff and community development programs designed to achieve cultural synchronization between students, teachers, parents and the community, youth development support mechanism modeled on the "Comer Plan", and initiatives that will enable and empower

4
parents and the community to become integrally involved in the educational process.
This approach recognizes the significant difference between desegregation and integration. Desegregation in this context consists of removing the barriers that deny African-Americans access to equal educational opportunities and eradicating the vestiges of illegally segregated "separate but equal" school systems. Integration is merely the physical mixing of the races in a particular setting, facility, or institution. It must be viewed as a by-product of effective desegregation. Unlike the LRMP our plan recognizes that there will be no significant integration of the schools unless and until there is a substantial improvement in academic achievement levels. Community based schools will desegregate and integrate because they offer what all parents want - whether they live in the suburbs or in the city; send their children to private or public schools; be they Black or white - schools where:
- the climate is conducive to academic achievement and personal development;
- students are interested, engrossed, and engaged in the learning process;
- the curriculum and instruction program is relevant and challenging;
- discipline problems are minimal; - students exhibit self-respect, respect for others,
self-confidence, and commitment to community; - Parents have a substantial voice in governance of the
school at the site level.

5
A brief synopsis of the fundamental components of our grass-roots community designed proposal is below.
1. The 17 "traditional" or non-magnet schools will not become magnet themed schools as proposed by the KCMSD, but will be restructured as Community Based Schools. Residents of the neighborhood and community served by the school will be given a voice and authority in designing the curriculum and instruction program and the school organization.
2. The clearly failing and unsuccessful magnet programs at Southeast Middle and Southeast High School will be discontinued and those schools will be a part of the Community Based School System.
3. The Effective Schools Budget will be increased from 8 million to 10 million dollars and set aside solely to the non-magnet Community Based Schools.
4. Attendance will be based on school attendance boundaries for each school. However, a percentage of seats will be set aside for students who live outside a particular school boundary. Transportation services will be limited to those students who live outside the attendance boundaries.
5. The LRMP will be extended for no more than three (3) years. During that period the Desegregation Monitoring Committee (DMC) working in conjunction with the community will evaluate its effectiveness and make specific recommendations relative to the long-term viability of certain themes, program, and schools. Those deemed substandard, mediocre, and ineffective will be converted to heretofore successful magnet themes or community based schools.
The Community based schools will include the following programs:

Curriculum Reform
1. District mandated curriculum which is culturally relevant, balanced and factual with a strong African and multicultural foundation.
The systematic exclusion of the richness, contributions, and perspective of Africa and African-Americans to the world from the American educational process, and American children, has been the cause of incalculable damage to the achievement, pride, identity, self-confidence and motivation of African-American students. The vestiges of the "separate but equal" school system cannot be removed without curriculum equity for those who have been victimized by culturally biased education.
Curricula based on a global and multicultural perspectives rather than an ethnocentric one can foster a positive self-image and increase the motivation for learning in all students. The individual's self-perception and evaluation markedly influence his intellectual as well as his personal and social behavior.
2. Instructional Reform.
The quantity and quality of experience between teacher and student, markedly influences the development, character and manifest expression of what we refer to as intelligence or intelligent behavior. Training in a variety of teaching styles is necessary for teachers to be consistent with the wide range of learning styles within various cultural and ethnic groups, including disabilities. Teachers must use examples and content from a variety of cultures and groups to illustrate key concepts, principles, generalizations, and theories if differences are to be valued, meaningful understandings fostered, and curriculum content and intent transformed through inclusiveness. Attitudes, perceptions, beliefs, and actions of staff must be consistent to promote academic achievement of students from diverse racial, cultural, gender and social-class groups. Instructional improvements are a mandatory prerequisite to enhanced academic performance.
3. Curriculum and instructional approaches conducive to the development of critical thinking skills.
The curriculum must not be "text-driven" to cultivate critical reflection, imagination, self-criticism, the ability to reason, argue, weigh up evidence and to form an independent judgment. A variety of community resources must be incorporated as the "text" from which content can be drawn to promote scholarship and inquiry. The curriculum must provide correct information on the histories, lives, and cultures of ethnic groups resulting in freedom from ignorance, prejudice, superstitions and dogmas. To this end, teachers must be retrained to help students understand, investigate and determine how the implicit cultural assumptions, frames of reference, perspectives and biases within a discipline influence the ways in which knowledge is constructed within it. A correct and balanced understanding of cultures is imperative to create an affirmative, non-discriminatory climate for all children to achieve.

4. Curriculum that expands self-confidence and builds healthy self-concepts.
How a person responds to his/her ethnicity (within a particular societal context) has a very potent effect on self-perception and self-evaluation. The "social mirror" that many poor and ethnic children look through reflects images that result in an alienated selfconcept. A multicultural curriculum combined with effective cross cultural interactional models will result in a wholistic self-concept where the contributions and experiences of each cultural/ethnic group involved in the human experience is valued. A healthy self-concept increases confidence, decreases discipline problems, increases social and personal responsibility, decreases the drop-out rate, and increases academic achievement.
Empowering School Culture
Incorporates Supportive Services, Mentor Programs, Extended Day, and School Governance as techniques to empower parents, especially those with relatively little or no formal education, to become more competent at stimulating the intellectual development of their children.
1. SUPPORTIVE SERVICES
A. Educational psychologist trained in alternative assessment.
Impoverished environments generate effects which accumulate over time and inhibit intellectual growth and functionality in children exposed to those environments. Relations between parent, school, community, and child become strained. Culturally competent psychologists trained in alternative assessments can serve both a preventive as well as a therapeutive functions in schools identifying potential problem situations and preventing them from developing into full-blown crises. The psychologists can work with individual teachers to address specific classroom problems in culturally appropriate ways and deal directly with individual student problems to help students adjust to and cope with the demands of the classroom without demoralizing labels and strategies that retard achievement.
B. Certified Home-School Social Workers.
Culturally aware and competent certified home-school social workers can provide home intervention services designed to enhance parental self-esteem, selfacceptance, cultural pride and identity as important factors in transforming the socioemotional and intellectual environment of the home. In this way, parents develop competence in providing an intellectually stimulating home environment. The HomeSchool Social Workers will serve as a bride between the management of behavior in the classroom (including development of study habits) and the home by providing child and family development counseling and services designed to reduce the cumulative affects of impoverishment which results in under performance and under achievement in children exposed to those environments.

C. Parent "outreach" coordinator at building sites.
Culturally competent and sensitive parent "outreach" coordinators at each of the 17 school sites would coordinate early childhood development activities appropriate to optimizing the mental and physical potential of children. Additionally, these "outreach" coordinators would promote three sequential levels of parent participation: 1) broadbased activities for a large number of parents, 2) a program encouraging parent participation in day-to-day school activities as tutors, aides, etc., 3) parents, staff and student collaborations in school governance.
D. School Grandparents and Corps of Retired Educators.
Utilization of valuable community resources such as grandparents and retired educators as positive role models, classroom assistants, tutors, aides, etc. to provide a direct linkage with intergenerational exchanges, to develop and foster extended family respect, appreciation, and the development of constructive values.
E. Nutritional specialists and Health Care Service (School Nurses)
Nutrition is another important area that affects academic performance. On site nutritional specialists can ensure the appropriate linkages between nutrition, diet, physical fitness, mental health and behavior.
Culturally sensitive on site nurses can provide frequent health checks, dispense medications and serve as a member of the Mental Health Team consisting of the school administrators, psychologist, social worker, special education teacher, guidance counselors, home school coordinator, and parent "outreach" coordinator.
2. MENTOR PROGRAM
A. Community-based, Ethnically Diverse Role Models
Use trained experienced professionals from community based resources to act as role models for our youth.
B. Institute a Master Teacher program
Identify and use experienced, culturally competent and multicultural educators as assistants and/or mentors to new teachers transferred and/or newly hired to the KCMSD to assist in the knowledge transfer of techniques and strategies that inspire, stimulate and motivate youth and result in increased self-esteem and academic performance.

3. EXTENDED OPERATING HOURS/EXTENDED YEAR

A. Parents teaching parents about parenting skills

I

Experienced parents can serve as "teachers" to teenage parents to share parenting strategies/techniques that work to reduce stress for the parent and child and contribute to the rearing of psychologically and socially wholesome, organized, and disciplined children eager to achieve.

B. Year round instructional component

Before and after school selected academic instruction for students, including preschool and Head Start programs, from both inside and outside the school's boundaries focusing on tutoring and the development of basic skills and computer literacy, year round.

C. Non-Instructional component

Development and implementation of high interest unstructured, non-graded, opportunities for students to select cultural activities, games, projects, computer assisted tutorials/drills, or use the period for homework completion to encourage enjoyment and pursuit of on-going learning.

D. Sports component/physical development

Development of structured sports and physical development activities to allow for the constructive expenditure of energy and tension release.

E. Community Involvement

Community involvement in combined school and community clubs such as history, business, African clubs, skills/craft clubs, etc. with teachers, education advocates, Health Care Team, and as recipients of services such as adult tutoring, should be developed and provided year round.

F. Extended year concept

Everything possible is to be done in groups and games, as contests and exhibitions in acknowledgement of the African-American youths delight in competition through development of extended year programs to foster mental, physical, and academic
achievement year round encouraging competition between schools.

4. SCHOOL GOVERNANCE
A. Parent involvement
Develop and implement procedures to ensure parent involvement at all levels of the school governance in moving from a bureaucratic method of management to a system of democratic participation in which parents play a key role.
B. Bottom-up planning
Community based resources, including CEEJ, parents, and other community groups, .are to be intricately involved in all planning and development ensuring base level participation and input into the development of appropriate and culturally sensitive models to be utilized in the remaining 17 elementary schools. To ensure meaningful change in academic reform, school reorganization, new school designs, social reform towards African-centered education and multicultural education, instructional emphasis, staff development, supportive services, extended day, and the mentor program, bottom-up input and participation is imperative.
C. Monitoring Program
Development and implementation of an effective school-based monitoring program to maintain accountability in effective and consistent implementation of curriculum reform, supportive services, staff development, mentor program, extended day and school governance as delineated in this proposal for each of the 17 elementary schools.
D. Accountability Procedures
Develop system-wide monitoring and accountability procedures for all aspects of this proposal as it relates to the 17 elementary schools and the district at large to include community based resource participation and input into the development and monitoring of the accountability procedures.
E. Recruitment of African-American male teachers
Mandated recruitment efforts directed towards African-American males in teaching and administrative positions throughout the KCMSD with a special focus on the recruitment of African-American male teachers at the elementary education level.
F. Paraprofessionals systematically advanced into Teacher status
Institute a plan designed to advance paraprofessionals into the status of teachers through instituting "on-the-job training" and accreditation for classroom experience as incentives.

Staff Development
1. Cultural sensitivity and competency training for all staff, regardless of race or gender
Teachers, administrators, counselors, and school board members must receive ongoing cultural competence training to realign behaviors, attitudes and policies to promote cultural synchronization and work more effectively in cross-cultural situations to achieve the desired improvements for all students.
2. In-service Teachers to teach accurate Multicultural curricula.
Standards should be developed to ensure those providing in-service training to teachers are equipped with and consistently utilize the most accurate information on multicultural perspectives in all disciplines.
3. Train teachers to understand the diverse learning styles of all children.
The differences in the methods of selecting and classifying information, known as cognitive styles, and the relationship with specific approaches used within school systems tend to place some youth at a greater advantage in learning style compatibility. Students who have not developed cognitive organization skills and those who function with a different cognitive style will not only be poor achievers early in school, but will also become worse as they move to higher grade levels. It is essential that teachers and principals receive training in understanding different learning styles to develop the appropriate environments and utilize appropriate strategies to allow all students to learn effectively.
4. Develop district-wide training to instruct teachers how to use Multicultural curriculum at the site level and employ community based resources to train personnel
Development and distribution of newly developed Multicultural curricula will be ineffective without a district-wide training and monitoring process to address attitudes. The KCMSD must train teachers and principals to effectively use the curriculum throughout the year to satisfy the core competencies for each discipline.
5. Institute an expanded "Parents as Teachers" program
The implementation of an expanded "Parents as Teachers" program taught by community based institutions will provide informed and culturally appropriate clinical approaches to increase student achievement through tutoring, study habit development, and behavior management while maximizing on community resources and extending the learning experience.

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 Kansas City, Missouri 64110
FOR IMMEDIATE RELEASE
SCHOOL DISTRICT FACING MULTI-MILLION DOLLAR DEFICIT
SUPERINTENDENT WALTER MARKS' WRECKLESS, ILLEGAL, AND WASTEFUL SPENDING HABITS PLUNGES SCHOOLS DEEPER AND
DEEPER INTO THE RED
Substantial Staff Cuts Antici • ated - Another Reor•anization Pendin
Brenda Thompson-Kistner Continues To Discriminate Against Blacks
■ Budget Director Roger Lee projects minimum of 2 million dollar deficit (our investigation and review of the records indicate that it could be as high as 7 million).
■ Marks continues to pay his "country" singing friend and Don "The HUCKSTER" Waldrip tens and even hundreds of thousands of dollars for dubious "educational" consulting on such things as picking personality types using COLOR CHARTS.
■ ART RAINWATER'S "special" female employees are paid $60,550 and $71,883 to do unnecessary "busy" work.
■ Pendery Clark is trying to leave before budget mess is revealed but Marks wants her to "straighten" things out before she leaves (Ha! Ha! Ha!).
■ The despicable Art Rainwater tries to hide his incompetence. Why does he need an assistant Superintendent earning $75,000, an administrative assistant ("Gofer") earning $45,000, and a Research Instructional Specialist earning $60,550? What is he being paid $77,000 to do?
■ Why did the bigoted Brenda Thompson-Kistner put a young inexperienced 23 year old white girl over and in charge of The Black Secretaries in her department, some of whom have 10-20 years experience in the KCMSD?
■ Why has Marks spent over $500,000 on lobbying, governmental affairs, community relations, and public information? (This doesn't even include money wasted on advertising and recruitment).
IT SEEMS THAT MARKS IS DOING TO US WHAT HE DID TO THE POOR PEOPLE OF RICHMOND, CALIFORNIA.
CHANGES MUST BE MADE!

"EDUCATION IS OUR PASSPORT TO THE FUTURE, FOR TOMORROW BELONGS TO THE PEOPLE WHO PREPARE FOR IT TODAY."
MALCOLM X

LET'S RECLAIM OUR SCHOOLS!

COMMUNITY SCHOOL BOARD MEETING
Sponsored By OALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
BLACK UNITED FRONT CITY COUNCILWOMAN CAROL COE
THE ENTIRE COMMUNITY IS INVITED TO ATTEND!!!

DATE:

SATURDAY, OCTOBER 17, 1992

TIME:

11:00 A.M.

PLACE: CENTRAL HIGH SCHOOL, 3221 INDIANA

TOPICS AND ISSUES
■ A Grass-Roots Plan for "Community Based" schools rather than more magnet schools. NO MORE MAGNETS!
■ Equal Access to ALL schools for African-American students
■ African and African-American History and Culture must be taught in the schools.
■ Why do over 50% of the students drop-out between grades 8-12?
■ Why are our children falling farther and farther behind their private and suburban school peers?
■ Should the white man who is willing to sacrifice a generation of AfricanAmerican students be allowed to continue with the KCMSD and earn $77,000 per year?
■ The MIS-EDUCATION of African-Americans by an insensitive and culturally arrogant school district must cease NOW!
OUR CHILDREN'S EDUCATION must be the primary goal of the KCMSD - not the enrichment of the white community.

COME OUT OCTOBER 17TH AND SPEAK OUT FOR CHANGE

 
 •
fa-

COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE RETREAT HIGHLIGHTS

-STATEMENT OF PURPOSE:
Take control of the Kansas City Missouri School District to be in a position to direct functions and actions of all district operations in areas of educational dilivery and economic processes.
-MAJOR CONCERNS: Leadership Academic Achievement Suspensions/Dropouts Supplies Themes/Curriculum Traditional/Magnet Task Force Control
-MAJOR STRATEGIES:
* Focus on Art Rainwater's removal * Interface with other cabinet level and key level
administrators * Continue to organize around key issues/spread to District
Task Forces and SACs * Continue with grass roots approach (Herring's proposal) * Meet with African American principals and other site level
leadership * Economic concerns should be directed to our business
community (Black Champer, Minority Contractors, etc.) * Utilize media * Continue to pursue legal action * Funds are mandatory now, initiate a membership drive,
perhaps $1.00 per person
-COALITION ORGANIZATION:
* Continue mass meetings every Tuesday, 7:00 p.m. until proposed structure is in place and working (perhaps through September)
* Establish a Steering Committee to be empowered to address issues, action and appropriate committee assignments. Designate regular meeting date.

•

Page 2

* Committees:

Public Relations (Victoria Bates, Maxine Baskin)

Community Action (Clif Herring, Michael Jackson,

Alice Ellison)

Legal

(Ed Newsome)

Dist. Admin. Monitoring

(Clinton Adams, Michael Jackson)

Educational Issues (Ajamau Webster, Bill Grace)

Finance

(Earnestine Kennedy, Hattie Clark)

Note: Total membership is requested to join at least one Committee.

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 Kansas City, Missouri 64110
FOR IMMEDIATE RELEASE
NEWS FLASH! NEWS FLASH! NEWS FLASH!
"Just as a tree without roots is dead, a people without history or cultural roots also becomes a dead people."
Malcolm X
Walter Marks and his henchmen, the lazy and prejudiced Brenda Thompson-Kistner and the despicable and incompetent Art Rainwater do not support our children learning about our history and our culture!
THE FACTS ARE CLEAR:
1. MARKS REFUSES TO HIRE AN INSTRUCTIONAL SPECIALIST IN THE AREAS OF AFRICAN HISTORY, CULTURE, AND LANGUAGES. But he has paid well in excess of $100,000 to his cowboy singing friend and over 60,000 to create a "do-nothing" research job for a "special" white woman. The enrichment of his white friends is more important than teaching our children about their heritage. Nearly nothing has been spent on curriculum equity for African-American youngsters. There is no budget for educational equity.
2. MARKS AND RAINWATER IGNORE COMMITMENT TO A 60/40 RATIO OF AFRICAN-AMERICANS IN THE INSTRUCTIONAL SPECIALISTS DIVISION. ONLY TWO OF EIGHT SPECIALISTS ARE BLACK., Martha Thompson who coordinates multi-cultural education and Earl Jones who heads the math department).
3. WITH THE EXCEPTION OF MATH, WHAT OUR CHILDREN ARE TAUGHT AND THE MATERIALS THEY USE TO LEARN ARE UNDER THE CONTROL OF WHITES, MOST OF WHOM ARE UNCOMMITTED, UNENLIGHTENED AND INSENSITIVE (Those who may be committed are hindered by the PREJUDICED BRENDA THOMPSON-KISTNER).
4. UNDER MARKS AND RAINWATER BLACK MEN AND WOMEN WHO DARE TO STAND-UP and SPEAK OUT IN SUPPORT OF EDUCATIONAL EQUITY ARE HARASSED, THREATENED, INTIMIDATED, AND DEMOTED.
5. MARKS AND RAINWATER DON'T SHOW ANY INTEREST IN OR COMMITMENT TO EDUCATIONAL EQUITY FOR OUR CHILDREN. THEY DON'T RESPECT STRONG AFRICAN-AMERICAN EDUCATORS. THEY DENIGRATE AND ATTEMPT TO EMASCULATE BLACK MEN.
WHY? WHY? WHY? WHY?
"It's a crime the lie that has been told to generations of Black men and white men both. Little innocent Black children seeing, before they could talk, that their parents considered themselves inferior. Innocent Black children growing up . . . and all of their lives ashamed of being Black"
Malcolm X

ATTEND THE COMMUNITY EDUCATION FORUM Saturday, October 17, 1992 11:00 A.M. CENTRAL HIGH SCHOOL Linwood and Indiana
SPONSORED BY: BOARD MEMBER ALEX ELLISON Coalition for Educational & Economic Justice Black United Front
Come out and participate in this important community dialogue with parents, elected officials, and community leaders. Topics will include the following: 1. Community Based Schools rather than Magnet Schools 2. THE INCOMPETENT AND DESPICABLE ART RAINWATER
3. Walter Marks' Discriminatory Practices and Wasteful spending of money to enrich his cronies and special W/F friends
4. The Lack of African and African-American History & Culture in the curriculum 5. Unfair Quotas 6. The Plight of Black Administrators 7. White Female control of Central High School 8. ARTHUR BENSON'S FAILURE TO REPRESENT THE INTERESTS OF
OUR CHILDREN
WHY DID MARKS AND RAINWATER DO NOTHING TO THE WHITE PRINCIPAL WHO LEFT A 6 YEAR OLD BLACK CHILD ASLEEP AND UNATTENDED IN THE SCHOOL, BUT FIRED (Dr. Wharry), DEMOTED (Curtis Jones, Jim Buford and countless others), and DISRESPECTED (Phyllis Washington) For Nothing? Had a Black Principal been responsible for leaving a white child at school without proper supervision he or she would have been fired on The SPOT!
CHANGES MUST BE MADE!

 
 FOR IMMEDIATE RELEASE 10 July 1992
COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE KCMSD PROPOSED "RESOLUTION" INSULTINGLY NON-RESPONSIVE
I. Based upon the oral communications and reports we've received from the superintendent and others, we have grave concerns about the district's positions. It seems that they have chosen not to hear and respond to our community's cry for equity, dignity, and justice. It is clear that this superintendent and this board of education have no respect for either the intelligence or educational interests of African-Americans.
II. Based upon our understanding of what the district purports to be its new position, there are several problems, all of which are indicative of the superintendent's lack of respect and disregard for our peoplE:
1. The "if it works" caveat is untenable. As far as we know, it is not being placed on any other new themes where it would be more appropriate, such as his misnDmed and misleading gifted and talented programs or his vacuous futuresprograms.
If the primary criterion is academic achievement, the data from Chick are clearyit does work" and "it is successful.
To put this restriction on the African studies programs dilutes, diminishes, and devalues the essence of our culture, our history, and our contributions and is indicative of the Superintendent's lack of confidence in and commitment to the African Studies magnet theme.
It should also be noted that irrespective of the successes achieved at Chick to date (with inadequate and insufficient resources), its inequitable and unconscionable for the Superintendent to expect Chick to accomplish within two years what magnet schools have not achievedin seven.
2. We are not asking for duplication of the Chick International Studies theme. Our D.A. Holmes proposal, in keeping with the philosophy of the LRMP, calls for a distinctive mentor instructional model with an African and African-American Studies curricular focus.
3. Based upon their public protestations in opposition to our plan, this Superintendent and his all white team of minions lack sufficient credibility, sincerity, commitment, believability, and cogency to persuasively present African and African-American Studies themes to the DMC and the Court. The Superintendent, Pendary Clark, and Art Rainwater have all made public comments questioning the desegregative attractiveness of an African Studies theme / which could easily be used to impeach

any testimony to the contrary. There is no doubt that this was an intentional effort on their parts to sabotage our efforts for more culturally relevant and educationally effective magnet programs.
4. Our concerns for K-12 continuity, similar to that provided for the Classical Greek, Foreign Language and Ancient Cultures programs, are not adequately addressed.
III. Finally, this Superintendent's proposal is not responsive to our concerns in any meaningful or substantive manner. In effect, all he's saying is that they will proceed with Chick as some sort of pilot project or demonstration school and if it meets some special undefined standards of "success" or "desegregating," they will duplicate that program two to three years later (on the back end of the desegregation plan) at D.A. Holmes. His posture is an arrogant, condescending, and offensive insult to our intelligence, our dignity, and our essence that makes it conclusively clear that this guy is ill-suited to be Superintendent of our schools.
Contact:
Ed Newsome, 444-2600 Ajamu Webster, 756-5010 Bill Grace, 523-3339 Clinton Adams, Jr., 356-2287

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 sas City, Missouri 64110

FOR IMMEDIATE RELEASE

June 29, 1992

DON'T BE MISLED BY THE SCHOOL DISTRICT'S LIES AND SOPHISTRY

School Board members Dr. Julia Hill and Paul Ballard have been quoted as saying that the Coalition for Educational and Economic Justice has its facts wrong when we complain about the diminished role of African-Americans in the leadership of the Kansas City, Missouri School District.

The facts are clear.

The KCMSD Leadership is as Follows:

1. Walter Marks 2. Pendery Clark 3. Robert Brogi 4. Art Rainwater
5. Bill Dittmeier 6. Brenda Thompson-Kistner
7. Tonnes Staave 8. Tom Evans 9. Pauline Moley
10. Larry Ramsey

Superintendent Assistant to Superintendent Deputy Superintendent Associate Superintendent
for Instruction Chief Legal Counsel Director of School
Programs Director of High Schools Director of Middle Schools Director of Instructional
Training Director of Planning

White Male White Female White Male White Male
White Male White Female
White Male White Male
White Female White Male

Most of the important and critical decision making positions which have a direct impact on the education of our youth, especially at the vital secondary level, are held by whites.

We ask Dr. Marks and Dr. Hill, is this equitable? Is this in the best interest of the educational and psychological development of our youth? Why is the trend toward diminishing and eliminating African-American male influences and roles in the education of our children?

(over)

THE K4NSAS CITY, MISSOURI SCHOOL DISTRICT'S LONG RANGE MAGNET PLAN IS BASED ON RACIST PRINCIPLES OF CULTURAL ELITISM

The current draft of the Long Range Magnet Plan contains the following statements:
1. Classical Greek - "The academic program is appropriate to the classical Greek theme. Reading and language lessons are organized around readings in Greek Mythology. Art lessons are built around extent ancient Greek art and architecture .
2. Latin Grammar -- "All students participate in a daily Latin class in which language instruction is enhanced by activities to build familiarity with mythology and other elements of Roman culture and history."
3. Foreign Language - "The goal of second-language teaching is the achievement of functional communication through content-based instruction of the target language and its culture ... The understanding and appreciation of different cultures in other countries as well as in our own community are integral elements in second language education. Resource teachers at all elementary sites teach aspects of the language's culture, history, and achievement."
Why is it acceptable, educationally effective, and desegregatively attractive to build magnet programs centered on ancient Greek culture, ancient Roman culture, European and Asian culture, but not African and African-American culture?
We ask Dr. Julian Hill, Dr. Walter Marks, the School Board and the N.A.A.C.P. do they accept and adhere to the offensive, demeaning, and Afrophobic motion that African and African-American history, contributions, and culture are not educationally significant or desegregatively attractive?

COALITION for EDUCATIONAL and ECONOMIC JUSTICE

Contact:
Ed Newsome 444-2600

Bill Grace 523-3339

Ajamu Webster 756-5010

Clinton Adams, Jr. 356-2287

 
 No.

IN THE

,Supreutt Olourt

Xinitett ,tatts

OCTOBER TERM, 1992

ICELEAN CLARK, et al., Petitioners,
VS.
KALIMA JENKINS, et a!., Respondents,
VS.
THE STATE OF MISSOURI, et al., Respondents, and
ScHoot. DisTRicr OF KANSAS CITY, MISSOURI, et al., Respondents.

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

*Counsel of Record September 22, 1992

MARK J. BREDEMEIER* JERALD L. HILL RICHARD P. HUTCHISON LANDMARK LEGAL FOUNDATION
8th Floor 1006 Grand Avenue Kansas City, Missouri 64106 (816) 474-6600
Attorneys for Petitioners

St. Louis Law Printing, Inc. 13307 Manchester Rd. St. Louis, MO 63131 314-231-4477

QUESTIONS PRESENTED
In 1987, the federal trial court ordered an unprecedented doubling of a school property tax levy to help fund the most expensive court-ordered desegregation program in the United States. An appeals court affirmed, but modified, the judicial taxation scheme. In April, 1990, this Court, in Missouri v. Jenkins, 495 U.S. 33, 110 S. Ct. 1651 (1990), affirmed the modified scheme but reversed the trial court's direct levy. In July, 1990, the trial court approved a teacher salary settlement negotiated by the parties which mandated a court-authorized $.96 property tax increase — ostensibly in accordance with this Court's Jenkins decision. Taxpayers sought intervention to challenge this latest taxation decree. The trial court granted intervention, but the appeals court dismissed taxpayers' appeal after briefing and argument.
The questions presented* are these:
1. Did the Court of Appeals misapply Supreme Court precedent in dismissing Petitioners' appeal as untimely, thereby depriving nonparty taxpayers of their due process right to appellate review of increased property taxes levied through the injunctive power of a federal court?
2. Did the lower courts misinterpret this Court's 1990 Jenkins holding when they sanctioned an indirect judicial tax increase of $.96 as a first step for additional desegregation funding?
• These taxpayers also appear as petitioners in No. 92-69, filed with this Court on July 8, 1992. That petition presents two questions concerning the proper extent of refunds of those property taxes directly levied by the trial court in 1987 and 1988 and reversed by this Court in Jenkins.

LIST OF PARTIES AND RULE 29.1 LIST
Petitioners are Icelean Clark, Bobby Anderton, Eleanor Graham, John C. Howard, Craig Martin, Gay D. Williams, Kansas City Mantel & Tile Co., Coulas and Griffin Insurance Agency, Inc., Lucille Trimble, Berlau Paper House, Inc., and Andrew J. Winningham. These Petitioners are individual and corporate taxpayers who own property within the Kansas City, Missouri School District ("KCMSD") subject to the $.96 court-authorized levy at issue. Kansas City Mantel & Tile Co., Coulas & Griffin Insurance Agency, Inc., and Berlau Paper House, Inc., are Missouri corporations with no parent companies, subsidiaries or affiliates as contemplated by Rule 29.1.
Respondents representing the plaintiff class of schoolchildren below are 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 this 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, Barbara Pugh; and Cynthia Winters, by her next friend, David Winters.
The American Federation of Teachers, Local 691 is an intervenor in the District Court proceedings and was a joint appellee.
Respondents representing the State defendants in addition to the State itself are the Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; the Missouri State Board of Education; Roseann Bentley, Rev. Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Gary D. Cunningham, Rebecca M. Cook, and Sharon M. Williams, Members of the Missouri State Board of

Education; and Robert E. Bartman, Commissioner of Education of the State of Missouri.
A named party below in addition to Respondent School District of Kansas City, Missouri is Claude C. Perkins, Superintendent.**
"The listing of School District Respondents are as they appeared in the Court of Appeals. The present Superintendent of the School District of Kansas City, Missouri is Walter L. Marks.

6

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- vi -

A. Taxpayers Satisfied Rule 24(a)(2)'s In-

terest, Impairment And Inadequacy Of

Representation Requirements

11

B. The Court of Appeals MisappliedNAACP

v. New York When It Held Taxpayers'

Intervention To Be Untimely

11

C. The Court Of Appeals Misapplied

McDonald And Other Circuits' Prece-

dent When It Held Taxpayers' Appeal To

Be Untimely

13

IL IN ENJOINING ANOTHER SCHOOL

PROPERTY TAX INCREASE WITHOUT

REFERENDUM APPROVAL AS A FIRST

STEP FOR INCREASED DESEGREGA-

TION FUNDING, THE LOWER COURTS

MISINTERPRETED THIS COURT'S

JENKINS II DECISION

17

A. This Court's Jenkins 11 Decision Did Not

Grant The Kansas City School Board

And The District Court Unlimited Power

To Increase Property Taxes Without Ref-

erendum Approval

18

B. This Court Should Enunciate Specific

Principles To Guide The Parties And The

Lower Courts Regarding Future Judi-

cially Authorized Property Tax Increase

Proposals

20

CONCLUSION

23

APPENDIX A

June 25, 1992 Opinion of the United States Court of

Appeals for the Eighth Circuit

A-1

- vii-

APPENDIX B

June 25, 1992 Judgment of the United States Court

of Appeals for the Eighth Circuit

A-7

APPENDIX C June 25, 1992 Order Nunc Pro Tunc of the United States Court of Appeals for the Eighth Circuit .... A-9

APPENDIX D

May 24, 1991 Eighth Circuit Clerk's Memoran-

dum

A-11

APPENDIX E

October 26, 1990 Order of the United States Court

of Appeals for the Eighth Circuit

A-13

APPENDIX F October 23, 1990 Order of the District Court

A-14

APPENDIX G August 22, 1990 Notice of Appeal

A-19

APPENDIX H

July 23, 1990 Order of the District Court (without

Attachment A)

A-25

TABLE OF AUTHORITIES

Page

Cases:

Armstrong v. Manzo, 380 U.S. 545 (1965)

19

Baker v. Wade, 769 F.2d 289 (5th Cir. Banc 1985), cert

denied, 478 U.S. 1022 (1986)

10,14,15

Board of Regents v. Roth, 408 U.S. 564 (1972)

19

Cascade Natural Gas Corp. v. El Paso Natural Gas Co ,

386 U.S. 129 (1967)

10

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988) passim

Jenkins v. State of Missouri, 672 F. Supp. 400 (W.D. Mo

1987)

3

Kroll v. St. Charles County, 766 F. Supp. 744

(E.D. Mo. 1991)

21

Lassiter v. Department of Social Services of Durham

County, 452 U.S. 18 (1981)

19

Legal Aid Society of Alameda County v. Brennan, 608

F.2d 1319 (9th Cir. 1979), cert. denied, 447 U.S

921 (1980)

10

Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982)

19

Missouri v. Jenkins, 495 U.S. 33, 110 S. Ct. 1651

(1990)

passim

Moten v. Bricklayers, Masons and Plasterers Union of

America, 543 F.2d 224 (D.C. Cir. 1976)

15

NAACP v. New York, 413 U.S. 345 (1973)

11,12,14

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) ...... ... 10

Thompson v. Freeman, 648 F.2d 1144 (8th Cir.

1981)

10

United Airlines, Inc. v McDonald, 432 U.S. 38

(1977)

passim

United States v. American Telegraph & Telephone Co ,

642 F.2d 1285 (D.C. Cir. 1980)

10, 11

Constitutional Provisions, Statutes and Rules: U.S. Const. amend. V U.S. Const. amend. XIV Fed. R. App. P. 4(a) Fed. R. Civ. P. 24(a)(2)

8,16,18 18
8,13,15 passim

Other Authorities:

3B Moore' s Federal Practice (1987)

10

7C Wright, Miller & Kane, Federal Practice & Proce-

dure: Civil 2d (1986)

10

26 Federal Practice, L.Ed. Parties (1984)

12

No.
IN THE
4 11prentt Court of
OCTOBER TERM, 1992

c*tatts

ICELEAN CLARK, et al., Petitioners,
VS.
KALIMA JENKINS, et al., Respondents,
V S.
THE STATE OF MISSOURI, et al., Respondents, and
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Respondents.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Petitioners Icelean Clark, Bobby Anderton, Eleanor Graham, John C. Howard, Craig Martin, Gay D. Williams, Kansas City Mantel & Tile Co., Coulas and Griffin Insurance Agency, Inc., Lucille Trimble, Berlau Paper House, Inc., and Andrew J. Winningham respectfully pray that a writ of certiorari issue to

-2—
review the judgment and opinion of the United States Court of Appeals for the Eighth Circuit entered in the above-captioned matter on June 25, 1992.
OPINIONS BELOW
The June 25, 1992 opinion of the United States Court of Appeals for the Eighth Circuit (Appendix, Al-A6) has not yet been reported. The District Court's October 23, 1990 intervention order (App., A14-A18) and the District Court's July 23, 1990 settlement and taxation order (App., A25-A30) are unpublished.
JURISDICTION
The judgment of the Court of Appeals' dismissing Petitioners' appeal (App., A7-A8) was entered on June 25, 1992. No petition for rehearing or suggestion for rehearing en Banc was filed. The jurisdiction of this Court to review the judgment and opinion of the Eighth Circuit is invoked under 28 U.S.C. Section 1254(1).
CONSTITUTIONAL PROVISION AND RULE INVOLVED
U.S. Const. amend. V provides in pertinent part:
[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Fed. R. Civ. P. 24(a)(2) provides:
Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or

—3—
impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
STATEMENT OF THE CASE
On July 3, 1990, the District Court' announced a proposed settlement by the parties in the underlying desegregation action of certain issues involving School District of Kansas City, Missouri ("KCMSD" or "district") employee salary raises, including a $.96 property tax increase to partially fund the higher salaries. This tax increase would be levied through the trial court's injunction authorizing the school board to raise the levy without referendum approval. 2 This order set forth a procedure for nonparty response to the proposed settlement and tax increase, specifically the filing of written objections and a public hearing.
School board members were not apprised of the proposed tax increase until after settlement was reached. They did not
' United States District Court for the Western District of Missouri, the
Honorable Russell G. Clark, Senior Judge. The authority for this indirect levy derives from the District Court's
judicial taxation scheme, Jenkins v. State of Missouri, 672 F. Stipp. 400, 413 (W.D. Mo. 1987), as modified by the Court of Appeals, Jenkins v. Missouri,
in. 855 F.2d 1295,1314 (8th Cir. 1988) ("Jenkins!!'), and affirmed by this Court,
Missouri v. Jenkins, 495 U.S. 33,110 S. Ct. 1651, 1666 (1990) ("Jenkins The Court's affirmance of this modified judicial taxation scheme was not without controversy. See id., 110 S. CL at 1667 (Kennedy, J., concurring) ("Today's casual embrace of taxation imposed by the . . . federal judiciary disregards fundamental precepts for the democratic control of public institutions.") The Jenkins II decision was handed down on April 18, 1990. The District Court's proposed tax increase followed less than three months later.

-4—
participate in the decision to levy a tax increase pursuant to Jenkins II until it was already structured into the settlement. At the press conference announcing the proposed settlement, the board president stated that board members would not decide whether to approve the proposed levy until after extensive study and a public hearing.
Petitioners are individuals and businesses who own real property within the district. Through counsel, they complied with the District Court's nonparty procedure and timely filed their written objections to the proposed property tax increase. On July 17, 1990, Petitioners appeared before the trial court to oppose final approval of the tax increase as well as the unrepresentative litigation strategy employed by the parties to accomplish it. (The school board had held a public hearing on July 12, 1990 at which Petitioners maintained their opposition.)
The Taxation Injunction
The District Court approved the settlement decree on July 23, 1990 and authorized the $.96 tax increase. (App., A26 & A28.) The trial court found "the tax rate of $4.96 . . . a reasonable maximum tax levy rate for KCMSD to yield sufficient revenue to fund" KCMSD's share of the $68 million in salary increases approved in the settlement. (App., A29.) The court enjoined enforcement of any and all state laws that would prevent the school board "from increasing its tax levy rate to that level in order to fund these salary increases which movants contend, and the evidence . . . indicates, are essential to comply with this Court's desegregation orders." (Id.)
At its meeting of August 20, 1990, the school board adopted the $.96 levy increase, and a $4.96 total levy,' pursuant to the July 23, 1990 injunction.
3 This $4.96 levy is comprised of (a) the $2.05 voter-approved levy which
(Footnote 3 continued on next page)

—5—
The Appeal
Once it became clear no party—including the State of Missouri—would be seeking review of the District Court's taxation decree, Petitioners timely appealed. (App., A 19.) Their August 22, 1990 "protective notice of appeal" explained that it was
necessitated by the fact that this [July 23, 1990 District Court] order, which permits the KCMSD to increase property taxes another $0.96 without a vote of the people or any meaningful community input in the taxation process, will not be appealed by any party in this desegregation litigation even though this order impairs the interests of KCMSD property taxpayers, who thus far have been denied intervention in this case.
(App., A20.) The notice was filed to protect these taxpayers' "right to seek judicial review" of the July 23, 1990 court order and the August 20, 1990 school board vote. (Id.) Petitioners described the trial and appellate courts' previous denials of taxpayer intervention to challenge earlier taxation decisions (App., A21), and expressed their intent to "once again" seek intervention "[n]ow that the School Board has actually adopted the increased levy . . . ." (Id.)4
(Footnote 3 Continued) existed prior to the District Court's September 15, 1987 taxation decree; (b) the $1.95 increase ordered by the District Court in 1987, affirmed and modified by the Eighth Circuit in 1988, reversed by this Court in 1990, and eventually ratified by the Kansas City school board; and (c) the $.96 levy increase enjoined by the District Court in 1990 and the subject of this appeal.
At this time, these taxpayers already had pending before the District Court a motion to intervene to seek refunds of the court-ordered property taxes reversed by this Court in Jenkins/1. (App., A21.) This motion was filed on June 15, 1990, but not granted until October 29, 1990.

—6—
On August 28, 1990, Petitioners filed a motion for leave to intervene for the limited purpose of seeking appellate review of the taxation order. The KCMSD, the Jenkins Plaintiffs and the American Federation of Teachers, Local 691 opposed intervention and moved to dismiss the appeal.
Intervention
After extensive briefing, the District Court granted intervention on October 23, 1990. (App., A14.) The court found that taxpayers satisfied the interest, impairment and inadequacy of representation requirements of Fed. R. Civ. P. 24(a)(2) and noted that the determination of timeliness in granting a request for intervention "is left to the trial court's sound discretion." (App., A16.) The court agreed that "the taxpayers' property rights and interests were not actually impaired until the School Board levied the tax increase on August 20, 1990." (App., A17.) Though "unusual," the trial court found post-judgment intervention to be appropriate in these circumstances. (Id.)
Petitioners received a copy of the intervention order on October 26, 1990 and immediately notified the Eighth Circuit. Apparently, however, the appeals court already had dismissed the appeal "for lack of jurisdiction" because Petitioners' "request for intervention ha[d] not yet been ruled" by the District Court. (App., A13.)
Rehearing
Petitioners timely sought rehearing of the dismissal and filed a second notice of appeal within thirty days of the District Court's intervention order. The Court of Appeals did not formally grant the rehearing request, but through telephone contact and a clerk's memorandum to counsel (App., Al2) directed the parties to brief the intervention and timeliness of appeal questions in addition to the propriety of the court-

— 7 —
authorized tax increase. The issues concerning both jurisdiction and the merits were orally argued before the Eighth Circuit panel.
The Eighth Circuit's Decision
The Court of Appeals' opinion (App., Al) and judgment (App., A7) were filed June 25, 1992 along with a Nunc Pro Tunc Order vacating the earlier October 26, 1990 dismissal. (App., A10.) The court deemed Petitioners' "protective" notice of appeal "ineffective" to confer jurisdiction (App., A5), and found the motion to intervene untimely. (App., A6.) The appeals court disregarded the District Court's analysis in granting intervention, concluding instead that the ruling could not "breathe life into rights already foregone." (Id.)

—8—

II

REASONS FOR GRANTING THE WRIT

In 1987 and 1988, the lower courts denied taxpayers' initial attempts to intervene in this desegregation case to challenge the constitutionality of judicial taxation; the courts permitted their participation as amici curiae. (App., A21.) Since then, the District Court has granted taxpayers intervention on four occasions under varying and unique circumstances.5

The intervention and appeal circumstances now before this Court are perhaps the most unusual yet. They provide this Court the opportunity to instruct the lower courts and the parties as to how taxpayers' rights and interests will be protected in this litigation now that it is absolutely clear no party in the case will adequately represent taxpayers against secretly negotiated, unilateral property tax increases tailored to usurp this Court's guidelines in Jenkins II. This case also allows the Court to better define its holding in Jenkins II with regard to the power of federal trial courts to enjoin local tax increases to fund remedies for constitutional wrongs.

There are special and important reasons for granting this writ. The District Court's post-judgment grant of intervention was proper under Fed. R. Civ. P. 24(a)(2) and taxpayers' timely notice of appeal protected their due process right to appellate review of the new judicially authorized tax increase. See U .S. Const. amend. V; Fed. R. App. P. 4(a). The Court of Appeals misapplied this Court's precedent in NAACP v. New York, 413 U.S. 345 (1973) and UnitedAirlines, Inc. v. McDonald, 432 U.S.

In addition to the intervention decision at issue here, the District Court granted taxpayers intervention (i) in January of 1989 to seek refunds of courtordered income taxes reversed by the Eighth Circuit; (ii) in October of 1990 to seek refunds of court-ordered property taxes reversed by this Court; and, most recently, (iii) in January of 1991 to oppose the State of Missouri's motion to compel the KCMSD to set even higher tax levies.

—9—
385 (1977) in dismissing Petitioners' appeal. This Court should settle the important question of federal law raised, viz., whether under the peculiar circumstances here Petitioners moved in a timely fashion to protect their due process interests, including appellate review, in challenging another court-sanctioned tax.
Moreover, in approving this $.96 tax increase, the lower courts misapplied this Court's limited grant of authority for judicial taxation in Jenkins II. This Court should settle the important due process and Article III questions implicated by federal court injunctions which authorize local taxing authorities to raise property taxes without referendum approval and in violation of state constitutional law.
Petitioners timely moved to protect their interests. They are entitled to appellate review of the new unilateral tax increase. They are entitled to protection from court-enjoined tax increases negotiated by desegregation litigants as afirst step in increasing desegregation funding.
I.
IN DISMISSING THE APPEAL, THE COURT OF APPEALS MISAPPLIED THIS COURT'S NAACP V. NEW YORK AND MCDONALD PRECEDENTS AND VIOLATED TAXPAYERS' DUE PROCESS RIGHTS ON AN IMPORTANT QUESTION OF FEDERAL LAW THAT MUST BE SETTLED BY THIS COURT.
The Court of Appeals was unaware of the District Court's grant of intervention when it initially dismissed Petitioners' appeal on the grounds that "none [of the taxpayers] are parties to the action in the district court, and their request for intervention has not yet been ruled by the district court." (App., A 13.) In fact, Petitioners had been granted post-judgment intervenor status, had become parties to the action, and were entitled to appeal the taxation decree. Petitioners' timely filing of a "protective"

— 10 —
notice of appeal, pending the grant of intervention, provided the parties with due process notice and preserved jurisdiction for appellate review of the July 23, 1990 order. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 395-96 (1977); Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 135-36 (1967); United States v. American Telegraph & Telephone Co., 642 F.2d 1285, 1295 (D.C. Cir. 1980). See also Thompson v. Freeman, 648 F.2d 1144, 1147 n.5 (8th Cir. 1981) (nonparty permitted to appeal district court' s jurisdiction to bind it to terms of injunction).
A proper reading of Fed. R. Civ. P. 24(a)(2) and Fed. R. App. P. 4(a) recognizes that post-judgment intervention is appropriate in "unique situations" where "the intervenor can prosecute an appeal that the existing party has determined not to take." 7C Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d Section 1916 at 451 & 454 (1986). In these unique situations, "intervention is granted solely so that the intervenor can prosecute an appeal." Id., Section 1923 at 517. "Intervention after judgment is unusual . . . [but] may be allowed . . . where it is the only way to protect the intervenor's rights; e.g., where the intervenor would be bound by the judgment and the party purporting to represent him fails to appeal." 3B Moore' s Federal Practice Para. 24.13 (1987). See Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319, 1328 (9th Cir. 1979), cert. denied, 447 U.S. 921 (1980). The facts presented here constitute a unique and unusual situation. See Baker v.Wade, 769 F.2d 289, 291 (5th Cir. banc 1985), cert. denied, 478 U.S. 1022 (1986) (post-judgment intervention "justified" and protective notice of appeal conveyed jurisdiction under "peculiar facts of this case"); Smuck v. Hobson, 408 F.2d 175, 181-182 (D.C. Cir. 1969).

- 11 —
A. Taxpayers Satisfied Rule 24(a)(2)'s Interest, Impairment And Inadequacy Of Representation Requirements.
The District Court found Petitioners possessed "a significant, direct and personal property interest" impaired by the July 23, 1990 taxation decree (App., A16); no party—particularly the State of Missouri—would adequately represent this interest by challenging "the settlement and tax increase procedure." (Id.)
While no one challenges these conclusions, the State's changing stance in this litigation also substantiates the timeliness of Petitioners' post-judgment intervention. The State is described as taxpayers' "representative." (Id.) The State's decision to unite, for the first time, with the other parties in seeking unilateral taxation made taxpayers' post-judgment motion to intervene timely and their protective notice of appeal essential. See American Telegraph & Telephone Co., supra, 642 F.2d at 1295 (post-judgment intervention justified for the limited purpose of appeal where the government no longer shared prospective intervenor's interest in appeal).
B. The Court Of Appeals Misapplied NAACP v. New York When It Held Taxpayers' Intervention To Be Untimely.
This Court's standard for evaluating the timeliness of an intervention request was made clear in NAACP v. New York, supra:
Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely diapositive. Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review.

— 12 —
Id., 413 U.S. at 365-366 (footnotes omitted). The timeliness requirement is designed not to punish an applicant for failing to act more promptly, but to ensure the original parties will not be prejudiced by the applicant's failure to apply sooner. See 26 Federal Practice L.Ed., Parties Section 59-375 (1984). Where timely intervention is sought for the limited purpose of bringing an appeal, there is no prejudice to the parties. The Court of Appeals' decision in essence "punished" taxpayers because they participated in the court-ordered fairness hearing first and then moved to intervene once this process proved fruitless.6
Taxpayers diligently complied with every procedure established by the trial court for objecting to the settlement agreement and its unilateral tax. Rather than sitting on their hands, as the Eighth Circuit's opinion intimates, Petitioners moved promptly in seeking intervention once the District Court authorized the settlement and the school board approved the tax hike. The District Court agreed that it was not until the court approved the tax increase on July 23, 1990 and the school board actually voted on August 20, 1990 to raise the levy that taxpayers' interests were sufficiently impaired to satisfy federal intervention requirements. (App., A17.)
The determination of timeliness under Rule 24(a)(2) is left to the trial court's "exercise of its sound discretion." NAACP v. New York, 413 U.S. at 366. The timeliness of a motion to
6 In NAACP v. New York, the applicants for intervention were provided
with sufficient public notice of clearly-delineated court action which directly affected their rights and interests well before any attempt was made to intervene. This Court held that these applicants were untimely because they had waited more than three months after it became "obvious that there was a strong likelihood" that their interests were imperiled. 413 U.S. at 367. There, applicants did not move to intervene or otherwise "take immediate affirmative steps to protect their interests. . . ." Id. This conduct is certainly distinguishable from that of Petitioners.

— 13 —
intervene "is measured from the point in time at which it becomes clear that intervention is necessary." United Airlines, Inc. v. McDonald, supra, 432 U.S. at 394. The "point in time" governing review of the trial court's exercise of discretion is August 20, 1990, when the tax increase was adopted by the taxing authority, not, as the Eighth Circuit believes, on July 3, 1990, when the settlement and tax increase were originally proposed. (App., A5.)
The District Court's sound intervention analysis is in accord with Rule 24(a)(2) and controlling case law. The Court of Appeals' conclusion to the contrary must be corrected.
C. The Court Of Appeals Misapplied McDonald And Other Circuits' Precedent When It Held Taxpayers' Appeal To Be Untimely.
The Eighth Circuit erroneously read United Airlines, Inc. v. McDonald, supra, as imposing on Petitioners and other postjudgment intervenors the duty to file a motion to intervene within the 30-day window for bringing an appeal under Fed. R. App. P. 4(a). (App., A6.) The District Court, however, correctly concluded that McDonald "[did] not pronounce that post-judgment intervention must be made within the 30-day period from which a judgment may be appealed. Timeliness of the motion to intervene is a matter of discretion for the trial court." (App., A18.)
In McDonald, class certification was denied by the trial court and putative members of the class sought post-judgment intervention for the purpose of appealing this denial of certification. This Court held that
[t]he critical fact here is that once the entry of final judgment made the adverse class determination appealable, the respondent quickly sought to enter the litigation. In short, as soon as it became clear to the respondent that the interests

— 14 —
of the unnamed class members would no longer be protected by the named class representatives, she promptly moved to intervene to protect those interests.
Id., 432 U.S. at 394. The McDonald Court went on to hold that "[t]he critical inquiry in every such case is whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment." Id. at 395-96 (citing NAACP v. New York, supra). Applying this standard to the facts presented in McDonald, the Court found the intervention request timely because it was filed within the time period in which the named plaintiffs could have taken an appeal. Id. However, this Court did not establish Rule 4(a)'s 30-day appeal deadline as the standard for determining the timeliness of post-judgment intervention.
The Eighth Circuit also ignored the clear import of the Fifth Circuit's majority opinion in Baker v. Wade, supra, relying instead on Judge Rubin's vigorous dissent. (App., A4-A5.) In Wade, the appeals court granted a motion to intervene filed in that court by a member of the appellant class who was not the class representative after the class counsel withdrew its appeal. The court allowed intervention because of the "special circumstances" of the case. Wade, 769 F.2d at 291.
Judge Rubin's dissent actually bolsters Petitioners' position. He reasoned that a motion to intervene filed in a district court by a nonparty who seeks to prosecute an appeal "is significantly different from a motion filed in an appellate court by a nonparty who seeks to intervene in an existing appeal. . . ." Id. at 296 (Rubin, J., dissenting). Judge Rubin continued:
When the motion to intervene is filed in a district court, to enable the would-be intervenor to prosecute an appeal, evidence may be taken on such matters as whether the application is timely, whether the applicant's interest is adequately represented by existing parties, the nature and

— 15 —
sufficiency of the would-be intervenor's interest, and any other questions pertinent to intervention. . . .
Id. Applying Judge Rubin's analysis to Petitioners' "special circumstances" only reinforces the District Court's conclusion.'
Despite its assertion to the contrary, the Court of Appeals has placed these taxpayers in a "procedural box from which there is no escape." (App., A5.) Petitioners could not move to intervene until they suffered an impairment of a justiciable interest. Fed. R. Civ. P. 24(a)(2). According to the District Court, this impairment did not occur until the trial court entered its taxation decree and the school board actually voted to levy the new property tax on August 20, 1990. (App., A17.) Yet, according to the appeals court, Petitioners' failure to seek and obtain intervention prior to the expiration of Fed. R. App. P. 4(a)'s 30day appeal deadline—in this case, by August 22, 1990—effectively foreclosed their right to appellate review of the taxation decree.
The Eighth Circuit's opinion suggests Petitioners might have been granted intervenor status in time to notice an appeal if they had moved to intervene before August 22, 1990, and "asked for an expedited decision," and then sought an extension of time in which to bring an appeal under Fed. R. App. P. 4(a)(5). (App., A6). The court grimly confesses that, because the motion to intervene was not filed until August 28, 1992, "[w]e have no way
7 The Court of Appeals also relied on Moten v. Bricklayers, Masons and
Plasterers Union of America, 543 F.2d 224 (D.C. Cir. 1976), when it initially dismissed the appeal (App., A13), though it did not cite the case in its recent opinion. Moten is clearly distinguishable in that, there, post-judgment intervention was sought by an employer group that not only had full knowledge of their impaired interests during three years of litigation, but also participated in settlement negotiations. Petitioners, on the other hand, were not participants in the agreed-to tax increase.

— 16 —
of knowing whether they would have received such a ruling in time to appeal . . . ." (Id.)
This is rather disingenuous. Rule 4(a)(5)'s maximum 30-day extension would provide no meaningful relief. Petitioners' previous requests for intervention all took considerably longer than sixty days before they were granted.' In fact, during this very time period, Petitioners already had another motion to intervene that had been pending with the District Court since June 15, 1990. (App., A21.) That motion was not granted until October 29, 1990, six days after this motion to intervene was granted.
Under any reasonable set of circumstances, these taxpayers would not have been parties, i.e., granted intervention status, until after the expiration of the appeal deadline, even if extended a month. Thus, the eventual notice of appeal still would have been filed by a "nonparty" and still would have been "protective" in a manner no different than the actual circumstances now before the Court.
The Eighth Circuit has adopted a thoroughly unjust interpretation of the rules, one that will severely limit, if not altogether deprive, post-judgment intervenors of their due process right to appellate review of trial court decisions. See U.S. Const. amend V. This serious misapplication of precedent denied Petitioners due process of law and must be reversed by this Court.
° See footnote 5, supra.

IN ENJOINING ANOTHER SCHOOL PROPERTY TAX INCREASE WITHOUT REFERENDUM APPROVAL AS A FIRST STEP FOR INCREASED DESEGREGATION FUNDING, THE LOWER COURTS MISINTERPRETED THIS COURT'S JENKINS II DECISION.
All parties and all courts in this case have acknowledged that "the imposition of a tax increase by a federal court [is] an extraordinary event." Jenkins II, 110 S. Ct. at 1663. This Court held that "[b]efore taking such a drastic step" the trial court is "obliged to assure itself that no permissible alternative would have accomplished the required task." Id. Even while affirming the District Court's September 15, 1987 direct levy of taxes in Jenkins II, the Court of Appeals modified the future operation of the unilateral property taxation scheme "to more closely comport with limitations upon our judicial authority . . . ." 855 F.2d at 1229.9
The unilateral $.96 property tax increase enjoined by the July 23, 1990 settlement decision (App., A29) raises important questions of federal law: Was this "drastic step" consistent with due process? Did the tax levying process employed—a secretive settlement negotiation process leading up to a pro forma court hearing—respect the value of citizen input and "closely comport with limitations upon [the lower courts'] judicial authority"? Did the parties and the lower courts assure themselves that there existed "no permissible alternative"?
These questions can be answered with a resounding no. This tax increase, and the litigation subterfuge leading up to it,
'For a more extensive discussion of the taxation decisions and opinions in this action, see Petition for Writ of Certiorari at 3-7, filed July 8, 1992, Clark v. Jenkins, No. 92-69.

— 18 —
constituted an improper extension of the limited taxing power granted by this Court in Jenkins 11.10
A. This Court's Jenkins II Decision Did Not Grant The Kansas City School Board And The District Court Unlimited Power To Increase Property Taxes Without Referendum Approval.
The past decisions of this Court and the Court of Appeals in this litigation make no less sacred—or constitutionally protected—the rights of KCMSD taxpayers to representative taxation. The Eighth Circuit modified the District Court's direct levy out of "a desire to use minimally obtrusive methods to remedy constitutional violations." Jenkins II, 855 F.2d at 1314. This Court sustained this commitment to democratic taxation when it stated "one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions." Jenkins 11, 110 S. Ct. at 1661. Even in the extreme case where a court might order taxation, "the unique nature of the taxing power would demand that this remedy be used as a last resort." Id., at 1677 (Kennedy, J., concurring).
Petitioners are still protected against unlawful unilateral tax increases by fundamental constitutional safeguards inherent in due process. See U.S. Const. amends. V & XIV. In his concurring opinion in Jenkins II, Justice Kennedy warned that "[w]here a tax is imposed by a governmental body other than the
The Court of Appeals did not reach the merits due to the "jurisdictional defect." (App., A6.) However, "[a]s an epilogue," the court pointed out that "[w]ere we to consider" the tax issue, "no showing has been made that there was an error of law or an abuse of discretion in approving the settlement" and tax increase. (Id.) Because the lower courts misinterpreted Jenkins II, there was an error of law and an abuse of discretion warranting this Court's review.

— 19 —
legislature, even an administrative agency to which the legislature has delegated taxing authority, due process requires notice to the citizens to be taxed and some opportunity to be heard." 110 S. Ct. at 1671 (Kennedy, J., concurring).
In its most basic form, due process requires an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982); Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972). Although applying the Due Process Clause is an uncertain enterprise, courts must discover what "fundamental fairness" consists of in a given situation. See Lassiter v. Department of Services of Durham County, 452 U.S. 18, 24-25 (1981).
The "fairness hearing" procedures stipulated by the parties in this lawsuit were fundamentally unfair. This hearing was scheduled within just two weeks of the district's press conference announcing the proposed tax increase. At that, the average KCMSD taxpayer was given no direct notice that his property taxes were about to be raised (again)—other than reading the fine print in a tombstone newspaper advertisement. Little opportunity was afforded average citizens to educate and organize themselves for a response. Moreover, written notice and written objections were required to be filed with the federal court and specially served on the parties' attorneys before one could testify at the hearing. How many average citizens can do this?
The secretive process that resulted in the adopting of this $.96 levy increase was not "minimally obtrusive." It did not respect "the integrity and function of local government institutions" and the role of citizen input in these institutions. It could hardly be said to have provided taxpayers with a"meaningful" opportunity to protect their property interests. Affirmance of this process is tantamount to the endorsement of a scheme whereby a "District Court order . . . overrides the citizens' state law protection

— 20 --
against taxation without referendum approval [which] can in no sense provide representational due process." Jenkins II, 110 S. Ct. at 1671 (Kennedy, J., concurring).
At the very least, the power to order increases in local tax levies on real estate in the KCMSD is limited in that "it can be exercised only after exploration of every other fiscal alternative." Jenkins II, 855 F.2d at 1310. The availability and sufficiency of fiscal alternatives involves "whether the school board has considered alternative sources of revenue, such as the submission of a referendum or legislative authorization for the board to impose other taxes." Id.
The property tax increase settlement was afirst step not a last resort. The parties came to the District Court for another desegregation tax increase before the ink was dry on this Court's Jenkins II opinion. They made no attempt to explore other alternatives to secure funds through less drastic means. They did not ask the Missouri General Assembly to look at education funding in Missouri. The school board did not place before district patrons a proposed property tax increase to fund teachers' salaries even though teacher salaries are among the most successful of proposals. No attempt was made to regain the trust of Kansas City taxpayers and seek community involvement in the function of this local government institution. In fact, school board members refused even to discuss tax increases in public, contending they were relevant only within the context of this ongoing desegregation litigation.
B. This Court Should Enunciate Specific Principles To Guide The Parties And The Lower Courts Regarding Future Judicially Authorized Property Tax Increase Proposals.
Justice Kennedy, in his Jenkins II concurrence, cautioned against sanctioning the "casual embrace of [judicial] taxation . .

— 21 —
should there arise an actual dispute over the collection of taxes as here contemplated . . . ." 110 S. Ct. at 1667 (Kennedy, J., concurring). That "actual dispute" has arisen in this appeal. The parties' closed-door settlement leading to the court-enjoined levy increase further illustrates that, unless this Court lays down clearer guidelines, KCMSD taxpayers will be at the mercy of incessant demands by all parties for higher levies to fund rising desegregation costs. It is inevitable because it is so easy."
In addition to reversing this tax increase, the Court should enunciate more definitive principles governing future proposals to increase KCMSD property tax levies outside the standard requirements of Missouri constitutional and statutory law, towit:
1. The parties must truly explore all other fiscal alternatives before proposing to the District Court a property tax increase. Presently, the first option for the parties is to run to the District Court for a "tax increase permit."
2. Before a property tax increase is proposed to the District Court, an attempt should be made to obtain referendum approval. The parties, and particularly the KCMSD, must begin now the process of reestablishing some connection between the district and its patrons. Some semblance of accountability must develop.
3. Before a property tax increase is proposed to the District Court, an attempt should be made to elicit the input of KCMSD
" Other district courts are indicating a willingness to exercise this new
Article III taxation power. See, e.g., Kroll v. St. Charles County, 766 F. Supp. 744 (E.D. Mo. 1991). In Kroll, the trial court threatened to impose a $.25 increase in property taxes if the county failed to fund renovation and reconstruction of handicapped accessible facilities "through an increased sales tax or in some other way ...." Id., 766 F. Supp. at 753.

— 22 —
taxpayers. The airing of taxpayer concerns and suggestions must be accomplished through a process which fairly, timely and genuinely considers taxpayers' thoughts. The July 17, 1990 hearing ordered below was not meaningful.
4. The financial situation of all Kansas City taxpayers should be taken into account when the courts consider the "reasonable limitation" of any proposed tax increase. See Jenkins II, 110 St. Ct. at 1663; 855 F.2d at 1314. Comparisons to upper middleclass suburban or unique rural school district levies is not a fair comparison of a "reasonable" KCMSD levy, particularly where overall cost-per-student State funding allocations are ignored.
5. On remand, the District Court should order the KCMSD to commission a study to determine the actual economic impact these court-ordered or -authorized levy increases are having on the school district's tax base. Throughout this litigation, various parties have complained about the "economic devastation" of various tax increase proposals. Yet no one really knows how significant is the cause-and-effect relationship between higher school taxes and business and residential flight from the urban district.
6. The KCMSD and the Jenkins Plaintiffs must begin to show some degree of fiscal responsibility in the funding, expansion and implementation of the desegregation remedy. The perception of the KCMSD is that of a school district completely out of control. Money is no object. Accountability to the public does not exist.
In sum, the political process must be restored in the operation of the Kansas City, Missouri School District. With the quick and easy use of judicial taxation there will never be any incentive for these litigants to explore funding alternatives that present less intrusive burdens on KCMSD taxpayers and more closely adhere to democratic principles. This Court must correct this serious, unconstitutional abuse of power.

— 23 —
CONCLUSION
This Honorable Court should issue its writ of certiorari to review the special and important questions presented.
Respectfully submitted,
MARK J. BREDEMEIER* JERALD L HILL RICHARD P. HUTCHISON LANDMARK LEGAL
FOUNDATION 8th Floor 1006 Grand Avenue Kansas City, Missouri 64106 (816) 474-6600
Attorneys for Petitioners
Counsel of Record September 22, 1992

-

TABLE OF APPENDICES

Page

APPENDIX A

June 25, 1992 Opinion of the United States Court of

Appeals for the Eighth Circuit

A-1

APPENDIX B

June 25, 1992 Judgment of the United States Court

of Appeals for the Eighth Circuit

A-7

APPENDIX C

June 25, 1992 Order Nunc Pro Tunc of the United

States Court of Appeals for the Eighth Circuit

A-9

APPENDIX D

May 24, 1991 Eighth Circuit Clerk's Memoran-

dum

A-11

APPENDIX E

October 26, 1990 Order of the United States Court

of Appeals for the Eighth Circuit

A-13

APPENDIX F October 23, 1990 Order of the District Court

A-14

APPENDIX G August 22, 1990 Notice of Appeal

A-19

APPENDIX H

July 23, 1990 Order of the District Court (without

Attachment A)

A-25

APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 90-2461
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;
Appellees,
American Federation of Teachers, Local 691 Appellee,
v.
The State of Missouri; Honorable John Ashcroft, Governor of the State of Missouri;
Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Rev. Raymond McCallister, Jr. Susan D. Finke Thomas R. Davis (Presiding) Gary D. Cunningham Rebecca M. Cook Sharon M. Williams
Members of the Missouri State Board of Education,

— A-2 —
Robert E. Bartman, Commissioner of Education of the State of Missouri,
Appellees, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof,
Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams;
Kansas City Mantel & Tile Co.; Coulas and Griffin Insurance Agency, Inc.; Lucille Trimble;
Berlau Paper House, Inc.; and Andrew J. Winningham, Appellants.
Appeal from the United States District Court for the Western District of Missouri. Submitted: June 25, 1991 Filed: June 30, 1992
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
JOHN R. GIBSON, Circuit Judge.
Icelean Clark et alia appeal from the district court's' approval of a partial settlement in the Kansas City school desegregation case, Jenkins v. Missouri, No. 77-0420-CV-W-4. On July 23, 1990, the district court approved an agreement of the parties to the suit whereby the tax on property within the Kansas City, Missouri, School District would be raised $.96 per $100 of assessed valuation to pay for salary increases for KCMSD employees. The Clark group consists of various property owners within the district who object to the decision to raise taxes in this
' The Honorable Russell G. Clark, Senior United States District Judge for
the Western District of Missouri.

— A-3 —
way. Before we can reach the propriety of the settlement, we must first decide whether this appeal lies, since there is question as to whether the Clark group filed an effective notice of appeal. As we conclude that it did not, we need not consider the substantive questions here presented. We dismiss the appeal.
The chronology of events leading up to this appeal is crucial to our holding. On July 3, 1990, the district court entered an order announcing a proposed settlement by the parties to the Jenkins litigation of certain issues involving KCMSD employee salary raises and a $.96 property tax increase that would be levied in the district, in part to fund the salary increases. The court held a hearing on the proposed settlement on July 17 and the Clark group's counsel argued against the settlement at the hearing. The district court approved the settlement on July 23, and the Kansas City school board actually voted to levy the tax on August 20.
On August 22, within the thirty day period for filing a notice
of appeal, Fed. R. App. P. 4, the Clark group filed such a notice. At that point not only were they not parties to the suit, but they had not moved to intervene. On August 28, they finally moved to intervene "for the limited purpose of seeking appellate review of the July 23, 1990 order." The district court granted their motion on October 23, 1990, stating that the Clark group was entitled to intervene as of right under Fed. R. Civ. P. 24(a)(2) since under the settlement they would suffer a pecuniary loss and since no party to the action adequately represented the taxpayers' interests. Order of Oct. 23, 1990, slip op. at 2-6. The district court held that the motion to intervene was timely, stating that "once final judgment was entered, the taxpayers had a legal interest which satisfied the requirements of Rule 24." Id. at 6.
About the time the district court granted the motion to intervene, this court dismissed the Clark group's appeal for lack of jurisdiction because the would-be appellants were not parties to the Jenkins suit. Order of October 26, 1990. The Clark group sought rehearing and filed a second notice of appeal on Novem-

— A-4 —
ber 23, 1990, some four months after the order appealed from. We obtained additional briefing and heard oral argument on the jurisdiction issue and the merits of the appeal.
We conclude that our initial assessment of the matter was correct — that no effective notice of appeal has been filed to confer jurisdiction on the court. When the Clark group filed its first notice of appeal, its members were not parties to this suit and had not even asked to become parties. "The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled." Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam). Accord Karcher v. May, 484 U.S. 72, 77 (1987); United States v. City of Oakland, 958 F.2d 300, 301-02 (9th Cir. 1992).
There are some exceptions to this rule; for instance, a non party may appeal an injunction that purports to bind the non party, Thompson v. Freeman, 648 F.2d 1144, 1147 n.5 (8th Cir. 1981). See generally 9 James W. Moore et al., Moore's Federal Practice 11203.06 (2d ed. 1991). The Clark group does not argue that any exception to the rule makes intervention unnecessary. The group does, however, cite to Baker v. Wade, 769 F.2d 289 (5th Cir. 1985) (en banc), cert. denied, 478 U.S. 1022 (1986), in which a member of a defendant class was permitted to appeal a judgment after the class representative abandoned its appeal on behalf of the class. After filing his notice of appeal as a non party, the class member moved for, and was granted, intervenor status in the Court of Appeals, and the Fifth Circuit decided the appeal on the merits. 769 F.2d at 291-92. Wade is distinguishable from this case, since a party had initiated the appeal. Judge Rubin's dissent in Wade points out that the majority did not hold that the non party class member's appeal was properly lodged, but rather that he would be permitted to intervene in the appeal first lodged, then abandoned by the class representative. 769 F.2d at 295. There was no underlying appeal in this case for the Clark group to intervene in; and, in any case, we are not persuaded that the

— A-5 —
Wade case was correctly decided, for reasons stated in Judge Rubin's dissent. 769 F.2d at 293-97.
We conclude that the first notice of appeal, filed before the intervention motion, was ineffective to confer jurisdiction on this court. The second notice of appeal was filed grossly out of time, with no attempt made to obtain any extension of the deadline for noticing the appeal. See Fed. R. App. P. 4(a)(4).
Thus, we have no jurisdiction over the appeal.
The Clark group's arguments cannot muddy these clear waters. The Clark group argues that it has been placed in a "procedural box from which there is no escape." They argue that they had no "justiciable interest" that had been "impair[ed]" until the school board voted to levy the $.96 increase on August 20, and that therefore it was impracticable for them to move for intervention before the time for appeal ran on August 22. This argument mistakes the nature of the "interest" requirement of Rule 24(a), and of the very concept of intervention. The language of the rule itself contemplates that the affected party can intervene in proceedings that "may" affect him before harm is done by execution of a court order. See Little Rock School Dist. v. Pulaski County Special School Dist., 738 F.2d 82, 84 (8th Cir. 1984) ("The rule does not require, after all, that appellants demonstrate to a certainty that their interests will be impaired in the ongoing action. It requires only that they show that the disposition of the action 'may as a practical matter' impair their interests.") (emphasis in original). A party claiming an interest in the litigation does not have to wait until he has suffered irreparable harm before he has an interest permitting intervention under Rule 24(a). The Clark group had clear notice as early as July 3 that all the parties to the litigation had agreed to the tax hike. On July 23 the court approved the settlement; at that time (at the very latest) the taxpayers had an interest protectible by intervention as of right.

— A-6 —
The Clark group further argues that even if its members had moved to intervene sooner, they probably would not have received a ruling from the district court on their motion in time to file a notice of appeal. We have no way of knowing whether they would have received such a ruling in time to appeal, because they made no motion at all until the time for appeal was already gone. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 396 (1977) (holding a motion to intervene for purposes of appeal was timely because it was filed within the period in which the parties could have taken an appeal); In re Grand Jury Proceedings (Malone), 655 F.2d 882, 885 n.2 (8th Cir. 1981) (motion to intervene in appeal filed within time to appeal). If they had moved promptly for intervention, and perhaps had asked for an expedited decision or an extension of the time to appeal, Fed. R. App. P. 4(a)(5), the "procedural box" argument would have considerable force. Since they did none of those things, we are not troubled by this argument.
In light of the Clark group's failure to make a timely motion to intervene and the consequent failure to file a timely notice of appeal, the district court's October 23, 1990, ruling granting the group intervenor status cannot breathe life into rights already foregone.
We therefore dismiss the appeal for lack of jurisdiction. As an epilogue, we observe that though we do not reach the merits of this appeal due to jurisdictional defect, we have studied the parties' briefs and they demonstrate that we are being asked to review an order for abuse of discretion. Were we to consider this issue, suffice it to say that no showing has been made that there was an error of law or an abuse of discretion in approving the settlement.
A true copy. Attest: /s/ Michael E. Gans CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

— A-7 —
APPENDIX B
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 90-2461
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;
Appellees,
American Federation of Teachers, Local 691 Appellee,
v.
The State of Missouri; Honorable John Ashcroft, Governor of the State of Missouri;
Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Rev. Raymond McCallister, Jr. Susan D. Finke Thomas R. Davis (Presiding) Gary D. Cunningham Rebecca M. Cook Sharon M. Williams
Members of the Missouri State Board of Education,

—A-8 —
Robert E. Barman, Commissioner of Education of the State of Missouri,
Appellees, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof,
Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams;
Kansas City Mantel & Tile Co.; Coulas and Griffin Insurance Agency, Inc.; Lucille Trimble;
Berlau Paper House, Inc.; and Andrew J. Winningham, Appellants.
JUDGMENT
This appeal from the United States District Court was submitted on the record of the district court, briefs of the parties and was argued by counsel.
After consideration, it is hereby ordered and adjudged that the appeal is dismissed for lack of jurisdiction in accordance with the opinion of this court.
June 25, 1992
A true copy. Attest: /s/ Michael E. Gans CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

— A-9 —
APPENDIX C
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 90-2461
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;
Appellees,
American Federation of Teachers, Local 691 Appellee,
v.
The State of Missouri; Honorable John Ashcroft, Governor of the State of Missouri;
Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Rev. Raymond McCallister, Jr. Susan D. Finke Thomas R. Davis (Presiding) Gary D. Cunningham Rebecca M. Cook Sharon M. Williams
Members of the Missouri State Board of Education,

— A-10 —
Robert E. Bartman, Commissioner of Education of the State of Missouri,
Appellees, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof,
Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams;
Kansas City Mantel & Tile Co.; Coulas and Griffin Insurance Agency, Inc.; Lucille Trimble;
Berlau Paper House, Inc.; and Andrew J. Winningham, Appellants.
Appeal from the United States District Court for the Western District of Missouri. ORDER NUNC PRO TUNC
Orders granting rehearing and setting the case for oral argument were not formally entered in this appeal. However, the issues on both jurisdiction and the merits were briefed and orally argued before the panel.
Accordingly, the court's order of October 26, 1990, which dismissed this appeal, is vacated.
June 25, 1992
Order entered at the direction of the Court. /s/ Michael E. Gans
Clerk, U.S. Court of Appeals, Eighth Circuit.

—A-11 —
APPENDIX D
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
U.S. Court & Custom House 1114 Market Street
St. Louis, Missouri 63101 314-539-3600 FTS: 262-3600
Michael E. Gans Acting Clerk
To: All Counsel of Record
From: Michael E. Gans, Acting Clerk
Re: Kansas City School Case – June 25, 1991 Special Session
Date: May 24, 1991
The Court has directed me to inform you that it has set all of the pending Kansas City School Case appeals for oral argument on Tuesday, June 25, 1991 at 9:00 am in Kansas City, Missouri. The arguments will be held in Judge Scott 0. Wright's courtroom in Federal Courthouse at 811 Grand Avenue. Please be present in Judge Wright's courtroom by 8:30 am for check in. The panel of judges hearing the cases will be Judge Theodore McMillian, Judge Gerald Heaney and Judge John R. Gibson.
The cases to be argued are as follows:
1. No. 90-2314WM 2. No. 90-2895WM 3. No. 90-2977WM 4. No. 90-2461WM 5. No. 91-1398WM.

— A-12 —
The Court has not completed its final review of the briefs in all of the cases. However, based on its preliminary review, the panel has indicated to me that it believes the cases all present separate and distinct issues. Each appeal will, therefore, be argued separately. Each appeal will be allotted fifteen minutes per side for argument. The Court hopes the parties can reach agreement among themselves concerning the allocation of the allotted time. If the parties have suggestions concerning the order of argument or the time allocation, they should contact me. I will pass all of your suggestions along to the panel.
Appeal No. 90-2461WM concerns the Clark group's petition for rehearing of an order of dismissal. The panel has asked me to inform you that it invites additional briefing in this appeal on the issues of the propriety of intervention and the timeliness of the appeal. These supplemental briefs are due on Tuesday, June 18. Any party wishing to make a reply to any of the supplemental briefs must do so by Monday, June 24, 1991.
If you intend to present oral argument at the Special Session, please return the enclosed calendar acknowledgment form to my office. No other notice of this session will be sent to you.
As in the past, I invite your questions and comments. If I can be of any assistance to you, please feel free to call me.

— A-13 —
APPENDIX E
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 90-2461
Icelean Clark, et al., Appellants, v.
Kalima Jenkins, et al., Appellees.
Appeal from the United States District Court for the Western District of Missouri.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Filed: October 26, 1990
ORDER
Appellants have filed a notice of appeal, which it described as a "protective notice of appeal," and, because none are parties to the action in the district court, and their request for intervention has not yet been ruled by the district court, the appeal is dismissed for lack of jurisdiction. See Karcher v. May, 484 U.S. 72, 77 (1987), and Moten v. Bricklayers, Masons and Plasterers Intern' I Union of America, 543 F.2d 224 (D.C. Cir. 1976).
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

— A-14 —
APPENDIX F
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION
No. 77-0420-CV-W-4
KALIMA JENKINS, et al., Plaintiffs, vs.
STATE OF MISSOURI, et al., Defendants,
BOBBY ANDERTON, et al., Applicants for Intervention.
ORDER
[Filed: October 23, 1990]
Before the Court is the Property Taxpayers' ("taxpayers") motion and suggestions for leave to intervene for the limited purpose of seeking appellate review. Plaintiffs, the KCMSD and AFT Local 691 filed a memorandum in opposition. The taxpayers filed a reply to the joint memorandum in opposition. The Court will grant the taxpayers' motion to intervene for the limited purpose of seeking appellate review.
On July 3, 1990 this Court entered an order announcing a proposed property tax increase settlement involving KCMSD employee salary raises and a $0.96 property tax increase to help fund salaries. This Court's order set a procedure for non-party response to the proposed settlement and tax increase, including filing written objections and a public hearing. Taxpayers complied with the Court's procedure and filed a notice to appear and written objections. On July 12, 1990 the KCMSD held a public hearing which the taxpayers attended and voiced objections to

— A-15 —
the property tax increase. On July 17, 1990 the Court held a fairness hearing in which the taxpayers appeared and voiced objections to the proposed property tax increase.
The taxpayer applicants are KCMSD property taxpayers. As a direct result of this Court's July 23, 1990 order authorizing a maximum property tax levy of $4.96 (per $100 assessed valuation), and the KCMSD's August 20, 1990 levy setting the tax rate at $4.96 for the 1990 tax year, taxpayers will be obligated to pay a $0.96 property tax increase. In order to preserve appellate review, on August 22, 1990 taxpayers filed a protective notice of appeal of the July 23, 1990 District Court order.
Pursuant to Fed. R. Civ. P. 24(a)(2), taxpayers assert that they have a right to intervene for the limited purpose of seeking appellate review of the District Court's July 23, 1990 order. Alternatively, taxpayers assert that they should be permitted to intervene pursuant to Fed. R. Civ. P. 24(b)(2).
Fed. R. Civ. P. 24(a)(2) provides:
Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the-action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is already adequately represented by the existing parties.
A party seeking intervention must assert a direct, substantial stake in the outcome of the litigation, and further, that this stake will be adversely affected. Taxpayers assert that they have an interest relating to the subject matter of this action as a direct result of this Court's order and the KCMSD's August 20, 1990 approval of a $0.96 increased property tax levy. Taxpayers submit that they will suffer direct pecuniary loss that is fairly

— A-16 ---
traceable to the actions of this Court and the parties to this litigation. "Interests in property are the most elementary type of the right that Rule 24(a) is designed to protect."Planned Parenthood v. Citizens for Community Action, 558 F.2d 861, 869 (8th Cir. 1977). Therefore, taxpayers possess a significant, direct and personal property interest in the issues raised by this Court's order and the KCMSD levy. Disposition of the action may, as a practical matter impair or impede the taxpayers' ability to protect that interest.
Taxpayers assert that they will not be adequately represented by the State in this matter. The State is presumed to adequately represent the taxpayers. See McLean v. Arkansas, 663 F.2d 47, 48 (8th Cir. 1981). Therefore, there must be a concrete showing of circumstances that make the representation inadequate. Taxpayers claim that their interests in seeking review of this Court's order and the process by which the tax increase was accomplished will not be represented by the parties to this action. Taxpayers point out that their representative, the State, has agreed to the settlement and tax increase procedure. Taxpayers assert that no clearer showing of the State's failure to represent them can be made than by the State's acquiescence in the settlement decree and the State's failure to file a timely notice of appeal of the July 23, 1990 order. Taxpayers cite United States v. American Telegraph & Telephone Co., 642 F.2d 1285 (D.C. Cir. 1980), wherein the court held that intervention was justified for the limited purpose of appeal if the government no longer shared prospective intervenor's strong interest in appealing to protect one aspect of the litigation.
Finally, Fed. R. Civ. P. 24 requires that an application to intervene in federal litigation must be "timely." The determination of timeliness is left to the trial court's sound discretion. NAACP v. New York, 513 U.S. 345 (1973). Taxpayers assert that their request for intervention is timely. Taxpayers state that the opportunity to seek appellate review of the legality of the tax

increase procedure did not arise until the District Court entered its July 23, 1990 order approving the settlement and authorizing the tax increase. Furthermore, the taxpayers' property rights and interests were not actually impaired until the School Board levied the tax increase on August 20, 1990.
The plaintiffs, KCMSD and AFT Local 691 urge that the taxpayers' motion to intervene is untimely because it should have become clear to the taxpayers that intervention was necessary on July 3, 1990—the date on which the Court ordered publication of a notice in the Kansas City Star and Kansas City Call concerning the proposed settlement of the salary increase dispute and the July 17th fairness hearing. However, timeliness of a motion to intervene is measured from the point in time at which it becomes clear that intervention is necessary. United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977). Taxpayers assert that prior to August 20, 1990, they did not have a justiciable claim regarding the issues in the July 23, 1990 order.
Taxpayers admit that intervention after judgment is unusual, but appropriate, where the intervenor would be bound by the judgment and the party purporting to represent the intervenor fails to appeal. See United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977). In McDonald, a motion to intervene was filed promptly after the final judgment of a district court. The McDonald court considered whether the motion was timely under Fed. R. Civ. P. 24. The court allowed intervention stating: "Our conclusion is consistent with several decisions of the federal courts permitting post-judgment intervention for the purpose of appeal. The critical inquiry in every such case is whether in view of all the circumstances the intervenor acted promptly after entry of final judgment. Id. at 395-96.
Plaintiffs emphasize that the McDonald plaintiff filed her motion to intervene within the 30-day period to take an appeal. In this case the taxpayers filed their protective notice of appeal on August 22, within the 30-day period to take an appeal, but

— A-18 —
filed their motion to intervene on August 28—thirty-seven days after this Court's order. However, McDonald does not pronounce that post-judgment intervention must be made within the 30-day period from which a judgment may be appealed. Timeliness of the motion to intervene is a matter of discretion for the trial court. The critical fact in McDonald was that once the final judgment was entered, the appellant had a legal interest which satisfied the requirements of Fed. R. Civ. P. 24. In the instant case, the Court finds that once final judgment was entered, the taxpayers had a legal interest which satisfied the requirements of Rule 24.
Accordingly, it is hereby
ORDERED that the taxpayers' motion to intervene for the limited purpose of appealing this Court's order of July 23, 1990 and the property tax authorized therein is granted.
/s/ Russell G. Clark RUSSELL G. CLARK, JUDGE UNITED STATES DISTRICT COURT
Date: October 23, 1990

— A-19 —
APPENDIX G
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION
No. 77-0420-CV-W-4
KALIMA JENKINS, et al., Appellees-Plaintiffs,
VS.
STATE OF MISSOURI, et al., Appellees-Defendants,
ICELEAN CLARK, et al., Appellants.
NOTICE OF APPEAL
[Filed: August 22, 19901
Notice is hereby given pursuant to Fed.R.App.P. 3 and 4 that Icelean Clark, Bobby Anderton, Eleanor Graham, John C. Howard, Craig Martin, Gay D. Williams, Kansas City Mantel & Tile Co., Coulas and Griffin Insurance Agency, Inc., Lucille Trimble, Berlau Paper House, Inc., and Andrew J. Winningham do hereby appeal to the United States Court of Appeals for the Eighth Circuit from the District Court's final order of July 23, 1990 approving a Kansas City, Missouri School District (KCMSD) maximum tax levy rate of $4.96 for property situated within the KCMSD and enjoining enforcement of any and all laws of the State of Missouri that would prevent the Board of Directors of the KCMSD from increasing its tax levy rate by $0.96 to that level.
This is a protective notice of appeal necessitated by the fact that this order, which permits the KCMSD to increase property taxes another $0.96 without a vote of the people or any meaning-

— A-20 —
ful community input in the taxation process, will not be appealed by any party in this desegregation litigation even though this order impairs the interests of KCMSD property taxpayers, who thus far have been denied intervention in this case. No party to this action will represent the interests of KCMSD property taxpayers by appealing this order.
On July 3, 1990, the District Court entered an order announcing a proposed settlement by the parties in this action of certain issues involving the increase of school district employees' salaries. This settlement included authorization of a $0.96 KCMSD property tax increase to fund a portion of the settlement. This order set forth a procedure for public response to the proposed settlement and tax increase, including the filing of written objections and a public hearing.
Appellants, through counsel, appeared before the Kansas City School Board on July 12, 1990 and voiced their objections to the process by which the levy increase was to be accomplished. Appellants complied with the District Court's established procedure and filed with the District Court their timely notice to appear before the court and their written objections to the proposed property tax increase. On July 17, 1990, Appellants, through counsel, appeared before the District Court to further argue against approval of the proposed property tax increase.
The District Court approved the settlement decree and tax increase by its order of July 23, 1990. On August 20, 1990, the School Board adopted the $0.96 levy increase, and a $4.96 levy, pursuant to the July 23, 1990 order.
This notice of appeal is filed to protect Appellants' right to seek judicial review of the July 23, 1990 order and the School Board's August 20, 1990 decision to set the property tax levy at $4.96. These property taxpayers have complied with the procedures set forth by the District Court for taxpayer comment and objection to the tax increase. These property taxpayers were

— A-21 —
denied intervention in this litigation by the District Court in October, 1987, when issues concerning federal court taxation first arose; the District Court did permit their participation as litigating amici curiae. During the appeal of the District Court's September 15, 1987 judicial taxation decision, the Eighth Circuit Court of Appeals did not rule on these property taxpayers' motion to intervene before the Eighth Circuit, but permitted their participation in additional briefing and oral argument. On June 15, 1990, following remand to the District Court of the United States Supreme Court's April 18, 1990 decision in Missouri v. Jenkins, 110 S.Ct. 1651 (1990), these property taxpayers moved to intervene before the District Court to seek refunds of unlawfully collected court-ordered property taxes. The District Court has not ruled on that intervention request.
Now that the School Board has actually adopted the increased levy, Appellants will once again be moving to intervene in the District Court for the limited purpose of appealing the court's July 23, 1990 order and the School Board's August 20, 1990 tax hike. Intervention after judgment may be allowed where it is the only way to protect an intervenor's rights, e.g., where, as here, an intervenor would be bound by the judgment and the party purporting to represent her fails to appeal. Moore's Federal Practice para. 24.13 (2nd ed. 1987). See United Airlines v. McDonald, 432 U.S. 385, 395-396 (1977). See also United States v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C. Cir. 1980) (intervention justified for limited purpose of appealing ruling where government no longer shared prospective intervenors' strong interest in appealing to protect one aspect of the litigation). Once the District Court enters a decision on Appellants' request for intervention, Appellants will file a second appeal to the Eighth Circuit and move to consolidate that second appeal with this protective appeal.

— A-22 ---

— A-23 —

Respectfully submitted,

CERTIFICATE OF SERVICE

LANDMARK LEGAL

The undersigned hereby certifies that a true and accurate copy

FOUNDATION

of the foregoing was served by first-class U.S. mail, postage

By: /s/ Mark J. Bredemeier

prepaid, this 22nd day of August, 1990 to:

Mark J. Bredemeier (#30230)

Arthur A. Benson II

Jerald L. Hill(#30567)

Benson & McKay

Richard P. Hutchison (#34865)

i

1000 Walnut, Suite 1125

Landmark Legal Foundation

Kansas City, Missouri 64106

15th Floor 1006 Grand Avenue Kansas City, Missouri 64206 (816) 474-6600
ATTORNEYS FOR APPELLANTS ICELEAN CLARK, ET AL.

Theodore M. Shaw NAACP Legal Defense Fund 8th Floor 634 South Spring Street Los Angeles, California 90014
Allen R. Snyder

Patricia A. Brannan

Hogan & Hartson

555 Thirteenth Street, N.W.

Washington, D.C. 20004

Shirley Keeler Blackwell, Sanders, Matheny, et al. Two Pershing Square 2300 Main Street Suite 1100 P.O. Box 419777 Kansas City, Missouri 64141

Doyle R. Pryor Jolley, Walsh & Hager 204 W. Linwood Blvd. Kansas City, Missouri 64106

— A-24 —
William L. Webster Attorney General Michael J. Fields Assistant Attorney General Broadway Building, 6th Floor P.O. Box 899 Jefferson City, Missouri 65102-0899
David R. Boyd Sutherland, Asbill & Brennan 1275 Pennsylvania Avenue, N.W. Washington, D.C. 20004
Is/ Mark J. Bredemeier Attorneys for Appellants Icelean Clark, et al.

— A-25 —
APPENDIX H
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Case No. 77-0420-CV-W-4
KALIMA JENKINS, et al., Plaintiffs, v.
THE STATE OF MISSOURI, et al., Defendants.
ORDER
[Filed: July 23, 1990]
Pending before this Court are Plaintiffs' Motion for Year VI Program and Budget Modifications, filed March 21, 1990, AFT Local 691's Motion for Year VI Program and Budget Modifications, filed April 3, 1990, and KCMSD's Supplemental Motion for Approval of Salary Increases as Part of the Desegregation Plan for 1990-91, filed April 9, 1990, in which the three movants allege that in order to fully implement this Court's desegregation orders it is essential for the Kansas City, Missouri, School District ("KCMSD") to increase the level of salaries paid to its employees in order to attract and retain qualified employees essential for these purposes. Salaries in the KCMSD have been an issue in this litigation since early 1989, when plaintiffs moved this Court for funding of a comprehensive salary study for the KCMSD and that request was approved by the July 25, 1989 Order of this Court. Salary increase matters were raised before the Desegregation Monitoring Committee ("DMC") in February, 1990, heard by that Committee in March, and motions were filed in this Court between March 21 and April 9, 1990.

— A-26 —
The State has opposed these motions, denying the movants' factual and legal contentions. Extensive discovery, including more than 25 depositions, inspection of thousands of documents, and the exchange of interrogatories preceded a hearing on the salary issues. Over four days of trial were conducted in June. These matters were widely publicized in the media. Before completion of trial the parties agreed to a compromise of disputed claims and presented to the Court this Order as proposed by them. Based on the entire record herein, the agreement of the parties and this Court having held a hearing on July 17, 1990, the Court finds the Agreement of the parties to be a fair, reasonable, and adequate settlement. It is therefore ORDERED:
1.The Kansas City, Missouri, School District is authorized to increase its salaries paid to its employees during the 1990-91 and 1991-92 school years by a total of up to $68 million. Over that two-year period, the State shall pay $34 million of that increase, and the Kansas City, Missouri, School District shall pay the remainder, with no joint and several liability.
2. The State of Missouri shall pay to the Kansas City, Missouri, School District the sum of $15 million as needed to fund salary increases for KCMSD employees for the 1990-91 school year and shall pay to KCMSD the sum of $19 million as needed to fund salary increases for KCMSD employees for the 1991-92 school year. The State shall deposit these funds in a separate interest-bearing account maintained by KCMSD with the interest earned on this account credited to the State's obligation under this Order. The proposed salary schedule for 1990-91 is attached hereto as Attachment A.
Cost of subdivision a) toe) of paragraph two shall be paid out of the $68 million authorized in paragraph one.
a. Salary increases shall be given to the following classifications of employees during the two years of this agreement:

— A-27 —
i. Senior Curriculum Coordinators (there are nine such positions, four funded by the LRMP [two science, one foreign language, and one fine arts coordinator] and five funded by the operating budget, one social studies, one language arts, one reading, one math, and one science coordinator) from step one at $53,700 to highest step at $59,950.
ii. Central High School Computer Systems Manager from first step at $49,000 to highest step at $57,400.
iii. Central High School Computer Technician from first step of $38,000 to highest step of $44,800.
iv. Animal Assistant and Greenhouse Technician from first step of $31,000 to highest step of $33,800.
b. The KCMSD shall develop job requirements for every teaching and administrative position at every magnet school. Such job descriptions for teachers shall include experience, training or demonstrated interest in the subject matter of the theme of the magnet school. Such job descriptions for principals shall include experience, training, or demonstrated interest in the magnet theme except where the District is unable to appoint a candidate who satisfies such a criterion. In such instances the District may appoint acandidate with preferable administrative and managerial skills if it simultaneously adopts a plan by which such candidate may reasonably be expected to acquire familiarity with the theme. The Desegregation Monitoring Committee shall have the authority to monitor such plans and review their implementation. These job descriptions shall be adopted by September 1, 1990 and applicable to new teachers and administrators as well as those wishing to transfer into a magnet school. Staff assigned to magnet schools on or before September 1, 1990 shall have until September 1, 1992 to meet the requirements for their positions.

— A-28 —
c. All staff assigned to magnet schools shall, in addition to the currently required forty hours of summer magnet theme staff development, participate in an additional forty hours of magnet theme in-service during the school year. In order to accomplish this, the teacher's school year will be extended by five days and teachers in traditional schools will also be required to participate in forty hours of staff development during the school year.
d. The KCMSD shall plan and implement procedures to assure that the existing process for evaluating principals and teachers is actually utilized starting September 1, 1990. The KCMSD shall make a good faith effort to use the results of its evaluation process to improve the quality of performance of its personnel.
e. The District may fund increases in substitute teacher pay, compensation for staff supervision of extra-curricular activities, and the staff liability insurance fund. The District may also fund a five-day new teacher training program as proposed in the pending motions.
3. In order to fund the District's share of the $68 million increase, KCMSD is hereby authorized to increase its property tax levy rate for the 1990 and 1991 tax years by 960 per $100 assessed valuation, so that the total KCMSD property tax levy rate in each such year may be increased to $4.96. If at the end of the 1991-92 school year any of the $68 million remains unspent, one-half of the unspent funds shall be returned to the State, and KCMSD's one-half shall be credited toward its desegregation obligations.
4. The Court finds that the highest tax levy rate ever approved by KCMSD voters was $4.23, that the average tax levy rate of the highest three school districts in Jackson County is currently $4.46, and that the highest levy rate of any school district in Jackson County is currently $5.07. Pursuant to the decision of the United States Court of Appeals for the Eighth Circuit dated August 19, 1988 and the decision of the United States Supreme

— A-29 —
Court dated April 18, 1990, this Court finds that the tax rate of $4.96 is a reasonable maximum tax levy rate for KCMSD to yield sufficient revenue to fund KCMSD's share of the salary increases authorized by this Order, and the Court hereby enjoins enforcement any and all laws of the State of Missouri that would prevent the Board of Directors of the Kansas City, Missouri, School District from increasing its tax levy rate to that level in order to fund these salary increases which movants contend, and the evidence at the conclusion of movants' case indicates, are essential to comply with this Court's desegregation orders.
5. In order to assure that the 96¢ levy rate increase will yield sufficient revenue to fund KCMSD's share of the salary increases authorized by this Order, KCMSD may seek to remove from escrow accounts established pursuant to State law, pending the disposition of any protest litigation, any taxes paid under protest. The State shall guarantee that KCMSD will be able to refund any taxes paid under protest on issues raised by this Order, if the Court ultimately rules in favor of the protesting taxpayer.
6. It is further ORDERED, based on the agreement of the parties, that KCMSD will, throughout the pendency of this Order, collect systematically and report periodically to the DMC and the parties appropriate data regarding the results of its recruiting efforts. KCMSD also agrees that it will within three months of the date of this Order begin implementation of a reorganization of its recruiting efforts by adopting a plan and schedule intended to improve the results of its personnel recruiting.
7. In agreeing to this Order, no party waives its rights with regard to positions taken in this litigation and each party specifically preserves its rights to make whatever arguments it deems appropriate with regard to these issues after the conclusion of the 1991-92 school year covered by this Order.

— A-30 —

/s/ Russell G. Clark Russell G. Clark United States District Judge

Dated: July 23, 1990

AGREED TO FORM AND CONTENT:

/s/ Arthur A. Benson H Arthur A. Benson H Counsel for Plaintiffs
/s/ Doyle R. Pryor Doyle R. Pryor Counsel for AFT Local 691

/s/ Allen R. Snyder Allen R. Snyder Counsel for the Kansas City, School District
/s/ Michael J. Fields Michael J. Fields Counsel for the State of Missouri

so

 
 No. 92.539

IN THE
kr, uprrntr (Inert of Or littitt,
OCTOBER TERM, 1992

Itatra

ICELEAN CLARK, et al.,

v.

Petitioners,

KALIMA JENKINS, et al., Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit

JOINT BRIEF IN OPPOSITION OF RESPONDENTS KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET Al.,
KALIMA JENKINS, ET AL., AND AMERICAN FEDERATION OF TEACHERS, LOCAL 691

ARTHUR A. BENSON, II
ARTHUR BENSON & ASSOCIATES
Suite 1125 1000 Walnut Street Kansas City, Missouri 64106 (816) 842-7603
Counsel for Respondents Kalima Jenkins, et al.
SCOTT A. RAISHER JOLLEY, WALSH & HAGER, P.C. 204 W. Linwood Kansas City, Missouri 64111 (816) 561-3755
Counsel for Respondent American Federation of Teachers, Local 691
-K. Counsel of Record

DAVID S. TATEL
ALLEN R. SNYDER * PATRICIA A. BRANNAN DANIEL B. KOHRMAN
HOGAN & HARTSON
555 Thirteenth St., N.W. Washington, D.C. 20004 (202) 637-5741
SHIRLEY WARD KEELER
BLACKWELL SANDERS MATHENY
WEARY AND LOMBARDI
Two Pershing Square 2300 Main Street Kansas City, Missouri 64141 (816) 274-6816
Counsel for Respondents Kansas City, Missouri School District, et al.

11■11IN r lei I IN • I I b
WILSON - EPES PRINTING CO., INC. 789-0096 - WASHINGTON, D. C. 20001

COUNTERSTATEMENT OF QUESTIONS PRESENTED 1. Whether any significant issue of federal law is pre-
sented by the Court of Appeals' dismissal of Petitioners' appeal for want of jurisdiction based on well-established legal principles strictly limiting federal appeals by nonparties?
2. Whether there is any basis for the Court to grant certiorari to consider issues regarding the merits of the questions raised by Petitioners' proposed intervention in light of the fact, as Petitioners acknowledge, that "[t] he Court of Appeals did not reach the merits" of these questions due to a " 'jurisdictional defect'" in Petitioners' appeal?
(i)

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRESENTED

TABLE OF AUTHORITIES

iv

OPINIONS BELOW

1

COUNTERSTATEMENT OF THE CASE

1

A. The District Court Proceedings on the Merits....

2

B. The District Court's July 23, 1990 Order

4

C. Petitioners' Post-Judgment Submissions

5

D. Proceedings Before the Court of Appeals

6

REASONS FOR DENYING THE WRIT

7

I. THE EIGHTH CIRCUIT'S DISMISSAL OF

PETITIONERS' APPEAL, FOR FAILURE TO

ESTABLISH APPELLATE JURISDICTION,

WAS BASED ON CLEAR LEGAL PRINCI-

PLES AND PRESENTS NO SIGNIFICANT

ISSUE OF FEDERAL LAW WORTHY OF

THE COURT'S REVIEW

8

II. THE COURT SHOULD DECLINE TO CON-

SIDER ISSUES NOT REACHED BY THE

COURT OF APPEALS AND RELIEF NEVER

SOUGHT BY PETITIONERS IN EITHER OF

THE LOWER COURTS

12

CONCLUSION

14

iv

CASES:

TABLE OF AUTHORITIES

Page

Browder v. Director, Ill. Dept. of Corrections, 434

U.S. 257 (1978)

11

Budinich v. Becton Dickinson and Co., 486 U.S.

196 (1988)

8, 12

Campbell v. White, 721 F.2d 644 (8th Cir. 1983)

9

Cascade Natural Gas Corp. v. El Paso Natural

Gas Co., 386 U.S. 129 (1967)

10

Delta Air Lines, Inc. v. August, 450 U.S. 346

(1981)

11

Flast v. Cohen, 392 U.S. 83 (1968)

14

Goodman v. Lukens Steel Co., 482 U.S. 656

(1987)

13

Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo.

1987) , aff'd in part and rev'd in part, 855 F.2d

1295 (8th Cir. 1988) , aff'd in part and rev'd in

part, 495 U.S. 33 (1990)

passim

Karcher v. May, 484 U.S. 72 (1987)

8

Marino v. Ortiz, 484 U.S. 301 (1988) (per

curiam)

8

Mistretta v. United States, 488 U.S. 361 (1989)

14

NAACP v. New York, 413 U.S. 345 (1973)

9, 10

Triax Co. v. TRW, Inc., 724 F.2d 1224 (6th Cir.

1984).

9

United Airlines, Inc. v. McDonald, 432 U.S. 385

(1977)

9, 10

United States ex rel. McGough v. Covington Tech-

nologies Co., 967 F.2d 1391 (9th Cir. 1992)

9

United States v. Fruehauf, 365 U.S. 146 (1961) 13, 14

United States v. Robinson, 361 U.S. 220 (1960)

8

United States v. Yonkers Bd. of Educ., 801 F.2d

593 (2d Cir. 1986)

11

Washington v. Bumgarner, 882 F.2d 899 (4th Cir.

1989) , cert. denied, 493 U.S. 1060 (1990)

9

RULES:
Fed. R. App. P. 4 Fed. R. App. P. 4 (a) Fed. R. App. P. 4 (a) (5)

passim 9
9, 10

TABLE OF AUTHORITIES—Continued
Fed. R. Civ. P. 24 Fed. R. Civ. P. 68 Sup. Ct. R. 10.1

Page
6 11 8

IN THE
#ttprrntr (Court of tip Ettitrb tftttro
OCTOBER TERM, 1992

No. 92-539

ICELEAN CLARK, et al.,

v.

Petitioners,

KALIMA JENKINS, et al., Respondents.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit

JOINT BRIEF IN OPPOSITION OF RESPONDENTS KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET AL.,
KALIMA JENKINS, ET AL., AND AMERICAN FEDERATION OF TEACHERS, LOCAL 691

OPINIONS BELOW
The decision below by the Court of Appeals has been reported as : Jenkins v. Missouri, 967 F.2d 1245 (8th Cir. 1992) . The district court's opinion is unreported.
COUNTERSTATEMENT OF THE CASE
Petitioners moved to intervene in this case in order to appeal the district court's approval of the parties' settlement of certain disputed claims. More than a month earlier, Petitioners had stated their objections to this settlement pursuant to court-ordered procedures permitting non-parties to present their views. Petitioners sought party status, however, only after the time to appeal had

2
expired. This Court is asked to review the Court of Appeals' subsequent dismissal of Petitioners' appeal for want of jurisdiction.
The Petition identifies no serious question, much less a significant federal legal issue, regarding the validity of the Court of Appeals' ruling, which was based on a proper application of Fed. R. App. P. 4 and this Court's precedents strictly limiting federal appeals by non-parties. Moreover, there is no basis for Petitioners' request that the Court consider the substance of the district court's order endorsing the parties' settlement agreement, because Petitioners themselves acknowledge the Court of Appeals "did not reach the merits" of that judgment due to a " 'jurisdictional defect'" in Petitioners' appeal. Pet. App. 18 n.10.
The Petition should be denied because both questions presented by Petitioners are well outside the range of matters the Court has recognized as appropriate for its discretionary review.
A. The District Court Proceedings on the Merits
This matter arises out of a compromise of disputed claims which is not supported by Petitioners, a group of non-party taxpayers who have sought intervention in this school desegregation case from time to time since 1987 in order to address specific issues of interest to them.'
1 Petitioners Icelean Clark, et al., represented by the Landmark
Legal Foundation, first sought to intervene in this case in September 1987 for the limited purpose of challenging a desegregation funding order, which was subsequently upheld by this Court, in part, as modified by the Court of Appeals. See Pet. 8 ; Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo. 1987), aff'd in part and rev'd in part, 855 F.2d 1295 (8th Cir. 1988), aff'd in part and rev'd in part, 495 U.S. 33 (1990) ("Jenkins II"). Although this initial intervention motion was denied, the movants were allowed to participate in this case as amici curiae. Thereafter, the district court granted taxpayers permission to intervene for various limited purposes, all unrelated to Petition No. 92-539, in January 1989, October 1990 and January 1991. See Pet. 8 n.5.

The settlement agreement at issue involved funding for salary increases for teachers and other school staff as part of a comprehensive remedy to eliminate the vestiges of segregation in the Kansas City, Missouri School District ("KCMSD" or the "District") . On July 25, 1989, the district court approved a plan for a study of the adequacy of KCMSD salaries, to be conducted by an independent consulting firm. In March and April of 1990, based on the consultant's report, Respondents Kalima Jenkins, et al., American Federation of Teachers, Local 691 ("AFT") , and KCMSD, et al.,2 filed motions requesting desegregation-related funding of KCMSD salary increases. See Pet. App. A25-A26. The movants asserted such raises were necessary in order to attract and retain qualified personnel essential to the successful implementation of other court-ordered desegregation programs.
Respondents State of Missouri, et al. (the "State") , initially opposed the other parties' motions. As a result, the district court held four days of highly-publicized trial proceedings in Kansas City commencing on June 18, 1990. Prior to the end of trial, all of the parties to this case, including the State of Missouri, agreed to a compromise of disputed claims, and presented a proposed order reflecting their accord to the district court. Pet. App. A26.
On July 3, 1990, the district court issued an order scheduling a fairness hearing on the parties' proposed settlement. The court declared that the parties had agreed to, and the court was considering approval of, KCMSD personnel salary increases of $68 million over two years, one-half of which was to be funded by KCMSD itself, through an increase in the property tax levy from $4.00 to $4.96 per $100 of assessed valuation. See Pet. App. A14-A15. On July 3, the parties also held a press con-
2 The Kansas City, Missouri School District Respondents include
the school district itself and its superintendent, Dr. Walter L.
Marks.

ference outlining the details of their settlement proposa1.3 On July 6, 1990, announcements appeared in two major Kansas City newspapers notifying the public, including Petitioners, of a July 17 fairness hearing on the parties' agreement and the text of the district court's July 3 order.
On July 12, 1990 the publicly elected KCMSD Board of Directors held an open hearing on the subject of the parties' settlement proposal. Representatives of the Petitioners attended and expressed to members of the Board their objections to the agreement. That same day, counsel for Petitioners filed with the district court, pursuant to "a procedure [established by the court] for non-party response to the proposed settlement," a substantial legal memorandum stating Petitioners' opposition to the settlement; in particular, Petitioners contested the proposed change in the KCMSD tax levy to fund salary increases and made other legal and factual arguments. Pet. 3. At the July 17 fairness hearing, Petitioners—through both their counsel and one of their members—presented oral arguments against the proposed settlement. See Pet. 4; Transcript of July 17, 1990 Fairness Hearing, 17-26, 68-69 (Bredemeier, Anderton) . Once again, Petitioners focused their criticism on the tax increase provisions of the agreement. Id.
B. The District Court's July 23, 1990 Order
On July 23, 1990 the district court issued an order approving the parties' proposed settlement agreement. The court "authorized [KCMSD] to increase its property tax
3 Petitioners state, without any citation to the record, that
KCMSD " [s]chool board members were not apprised of the proposed tax increase until after settlement was reached" and thus, "did not participate in the decision to levy a tax increase pursuant to Jenkins II until it was already structured into the settlement." Pet. 3-4 (emphasis in original). This assertion not only is without basis in the record but, as officers of the Court, undersigned counsel for KCMSD hereby represent that Petitioners' assertion is false.

levy rate for the 1990 and 1991 tax years by 96 [cents] per $100 assessed valuation, so that the total . . . levy rate . . . may be increased to $4.96." Pet. App. A28. The court made this ruling pursuant to standards set forth by this Court and the Court of Appeals in Jenkins II. Id. A28-A29. The district court held "the tax rate of $4.96 is a reasonable maximum tax levy rate for KCMSD" and enjoined "any and all [state] laws . . . that would prevent the [KCMSD] Board of Directors . . . from increasing its tax levy rate to that level in order to fund these salary increases . . . ." Id. A29. On August 20, 1990 the KCMSD Board formally approved the tax levy rate increase publicly endorsed by the parties on July 3 and authorized by the district court on July 23.
C. Petitioners' Post-Judgment Submission
Thirty-six days after the July 23 Order, Petitioners filed in the district court a "Motion for Leave to Intervene for the Limited Purpose of Seeking Appellate Review" (filed August 28, 1990) ("Motion to Intervene"). Petitioners' Motion asserted they were entitled to pursue such an appeal, and to seek party status for this specific reason, based on their prior filing of a "protective notice of appeal" on August 22, 1990, the thirtieth day following the district court's July 23 Order. Pet. App. A19.
In their August 22 submission, Petitioners set forth no authority for the so-called "protective notice" procedure they proposed to follow, and acknowledged they were not parties to this case. See Pet. App. A20. Although Petitioners indicated they intended to seek intervention, they declined to say when, and made no request for an extension of time to do so beyond the thirty-day deadline for filing an appeal. See Fed. R. App. P. 4. Petitioners pledged to file a "second appeal" after the district court ruled on their as-yet-not-filed intervention motion, and also promised to "move to consolidate that second appeal with this protective appeal." Pet. App.

6
A21. Once again, Petitioners cited no rule or court decision sanctioning such procedures.
On October 23, 1990 the district court granted Petitioners' Motion to Intervene, pursuant to Fed. R. Civ. P. 24. The court did not discuss or rule on the adequacy of Petitioners' "protective appeal" for purposes of establishing appellate jurisdiction. See Pet. App. A14-A18. In considering the timeliness of Petitioners' Motion to Intervene, the district court simply held that as of July 23, 1990, "once final judgment was entered, the taxpayers had a legal interest which satisfied the requirements of Rule 24." Id. A18.4
D. Proceedings Before the Court of Appeals
On September 8, 1990, the respondents other than the State filed a joint motion to dismiss Petitioners' "protective appeal." Respondents later timely appealed the district court's October 23, 1990 intervention order. Also within thirty days of that order, on November 21, 1990, Petitioners filed another Notice of Appeal concerning the district court's July 23, 1990 decision. Although this "second appeal" was filed fully four months after the July 23 Order, Petitioners claimed it was timely because of their original "protective appeal." Respondents filed a motion to dismiss Petitioners' "second appeal" on the grounds that it failed to satisfy Fed. R. App. P. 4, and
4 Thus, Petitioners mislead in alleging the district court ruled
their interests were "impaired," so as to justify a motion to intervene, no sooner than August 20, 1992, when the KCMSD Board formally approved the property tax levy increase authorized on July 23. See Pet. 6.
The United States Court of Appeals for the Eighth Circuit granted the motion to dismiss on October 26, 1990 on the grounds that Petitioners were not parties in the district court. Pet. App. A13. The Court of Appeals apparently was unaware of the district court's Order of October 23, 1990 granting Petitioners' Motion to Intervene. Accordingly, the Court of Appeals later vacated its initial dismissal order. See id. A10.

could not be saved by the invalid prior "protective appeal."
The Court of Appeals consolidated for joint consideration the related appeals and motions concerning both the propriety of Petitioners' intervention and the existence of appellate jurisdiction to review the district court's July 23, 1990 decision. Pet. App. A3-A4. On June 30, 1992, the Court of Appeals unanimously dismissed Petitioners' appeals, stating:
no effective notice of appeal has been filed to confer jurisdiction on the court. When the Clark group filed its first notice of appeal, its members were not parties to this suit and had not even asked to become parties.
Id. A4. 6 Furthermore, the Court declared : "we do not reach the merits of [Petitioners'] appeal [s] due to jurisdictional defect." Id. A6. Petitioners did not seek en bane review in the Court of Appeals.
REASONS FOR DENYING THE WRIT
Petitioners ask this Court to grant certiorari in order to consider granting relief that would be inconsistent with well-established limits on the powers of the federal judiciary. First, Petitioners urge the Court to review the Court of Appeals' routine application of Fed. R. App. P. 4 and settled principles of appellate jurisdiction, which strictly limit appeals by non-parties. No significant issue of federal law is posed by the Court of Appeals' conclusion that Petitioners' appeal was defective because Petitioners failed to seek party status before the time to file an appeal had expired. Moreover, this ruling did not create a conflict with any other federal appellate decision and did not misapply any decision of this Court.
6 The Court of Appeals also ruled, and Petitioners do not dispute
in this Court, that " [t]he second notice of appeal was filed grossly out of time, with no attempt made to obtain any extension of the deadline for noticing the appeal." Pet. App. A5.

There also is no merit to Petitioners' request that the Court consider the Eighth Circuit's supposed misapplication of the Jenkins II decision. Petitioners themselves acknowledge this issue was not decided by the Court of Appeals. Petitioners stray even further from guidelines governing this Court's certiorari jurisdiction in requesting a remand order amounting to an advisory opinion on matters addressed by neither of the lower courts in this case. In short, there are no "special and important reasons" for this Court to grant the Petition, Sup. Ct. R. 10.1, and several such grounds dictating that the Petition be denied.
I. THE EIGHTH CIRCUIT'S DISMISSAL OF PETITIONERS' APPEAL, FOR FAILURE TO ESTABLISH APPELLATE JURISDICTION, WAS BASED ON CLEAR LEGAL PRINCIPLES AND PRESENTS NO SIGNIFICANT ISSUE OF FEDERAL LAW WORTHY OF THE COURT'S REVIEW
The Petition for Certiorari is unfounded because Petitioners seek review of an Eighth Circuit decision that was based on clear legal principles established by this Court. Petitioners certainly offer no reason for this Court to reconsider the Court of Appeals' conclusion that " [t] he rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.'" Pet. App. A4, quoting Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam). See id., citing Karcher v. May, 484 U.S. 72, 77 (1987) (holding that appellate rights, if any, must derive from a person's or entity's status as a party before the district court). Petitioners likewise fail to present any basis for this Court to grant a Petition that calls into question the longstanding principle that the filing of a proper appeal within time limits prescribed by the federal appellate rules "is mandatory and jurisdictional." Budinich v. Becton Dickinson. and Co., 486 U.S. 196, 203 (1988) ; United States v. Robinson, 361 U.S. 220, 229 (1960) .

Undisputed facts demonstrate, as the Eighth Circuit found, that Petitioners failed to comply with these rules. See Pet. App. A4-A5. Plainly, as of August 22, 1990, the date on which the time to appeal the district court's July 23, 1990 Order expired, Petitioners neither were parties, nor had sought status as such. In addition, Petitioners do not deny that prior to the end of the thirtyday appeal period, they never "asked for an expedited decision [on a motion to intervene] or an extension of the time to appeal, [pursuant to] Fed. R. App. P. 4 (a) (5) ." Pet. App. A6.7
Fifteen years ago, this Court held that a motion to intervene in the district court, for the purpose of appealing a district court order, "was required to [comply with] the time limitation for lodging an appeal prescribed by Fed. Rule App. Proc. 4 (a) ." United Airlines, Inc. v. McDonald, 432 U.S. 385, 392 (1977). The United Airlines Court also declared that this conclusion was consistent with the Court's prior ruling, in NAACP v. New York, 413 U.S. 345 (1973) , that the timeliness of an intervention motion was to be determined "in view of all the circumstances." 432 U.S. at 395-96. The Court of Appeals in this case expressly relied on the Court's United Airlines ruling, Pet. App. A6, and Petitioners have offered no valid reason for the Court to question this judgment. Petitioners also present no subsequent authority supporting a different rule.' Thus, Petitioners' sug-
7 It is clear that the filing of a notice of appeal in itself may not be read to include "by implication" a Rule 4(a) (5) motion for extension of time. Campbell v. White, 721 F.2d 644, 646-47 (8th Cir. 1983). Accord Washington v. Bumgarner, 882 F.2d 899, 901 (4th Cir. 1989) (collecting cases), cert. denied, 493 U.S. 1060 (1990).
8 On the contrary, other federal appellate courts have followed United Airlines. See, e.g., United States ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391, 1395 (9th Cir. 1992) ; Triax Co. v. TRW, Inc., 724 F.2d 1224, 1229 (6th Cir. 1984). See also United Airlines, 432 U.S. at 395-96 n.16 (collecting cases).

10
gestion that this Court must grant certiorari in order to maintain the integrity of United Airlines or NAACP v. New York is baseless.
Petitioners' only other legal arguments are wholly without legal support and do not justify a grant of certiorari. For instance, Petitioners cite numerous cases as if they endorse the notion of a non-party filing a "protective" notice of appeal, and support the approach taken by Petitioners in this case. See Pet. 9-10. Yet not one of these decisions holds that a notice of appeal by a nonparty is rendered effective by a motion to intervene filed in the district court .following the expiration of the 30day appeal deadline. Id.° Petitioners also suggest, for the first time in this Court, that various decisions granting non-parties rights to appeal in "unique" circumstances support Petitioners' claim in this case, simply because Petitioners' self-inflicted procedural dilemma also presents an "unusual" situation. Id. 10. However, Petitioners fail to rebut the Court of Appeals' straight-forward rejection of such arguments or to justify asking this Court to rule on matters they declined to raise with the Court of Appeals. See Pet. App. A4-A5.
Petitioners also ask this Court to entertain equitable arguments, rejected by the Court of Appeals, that are founded on a misleading account of the record and a misreading of the law. These contentions also are no grounds for this Court to review the merits of this matter. Despite Petitioners' continued allusion to their confinement in a "procedural box," Pet. 15, they do not account for their numerous procedural defaults below, which should preclude a grant of certiorari. To excuse their inattention to Fed. R. App. P. 4 (a) (5), Petitioners mischaracterize it as imposing a "maximum 30-day extension" limit, Pet. 16, while in fact, the rule plainly permits
° See, e.g., Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129 (1967) (reversing denial of intervention motions filed by appellants, without discussing issue of timeliness).

11
a district court significant flexibility. Petitioners also suggest this Court should take this case to decide whether a non-party that has only two days to act is "effectively foreclosed" from filing an intervention motion prior to expiration of an appeal deadline. Id. 15. Such a question poses no important federal legal issue, and flatly ignores extensive evidence in the record directly contrary to Petitioners' claims of prejudice. See Pet. App. A5-A6.1°
This Court consistently has recognized that vital interests are served by clear rules regarding the finality of judgments and certain time limits for invoking the jurisdiction of the federal courts of appeals. See, e.g., Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 26465 (1978) . Upholding these principles is all the more important in this matter, which involves a settlement of disputed claims in the context of complex constitutional litigation. Petitioners urge this Court to ignore the favor the law historically has accorded settlements, see, e.g., Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981) (discussing Fed. R. Civ. P. 68) , and to disregard the disfavor the federal courts generally have accorded postjudgment intervention, especially in cases such as this, in which the number of potential non-party intervenorappellants is large, and the possibility of disruption of a constitutional remedy is great. See, e.g., United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986) . In light of the clear authorities on which the Court of Appeals' dismissal order was based, and the Petitioners' failure to take full advantage of the ample procedural opportunities available to them, Respondents respectfully urge the Court not to encourage Petitioners'
10 In particular, Petitioners declined to seek any extension of
time to appeal. They also admit elsewhere in their brief that the district court held their interests were "impaired" as of July 23, 1990, not on August 20, 1990; thus, Petitioners concede that they knew at least 30 days before the appeal deadline that they would have to move to intervene in order to challenge the parties' settlement. See Pet. 11.

12
disregard of the rules of procedure by granting the Petition for Certiorari.
II. THE COURT SHOULD DECLINE TO CONSIDER ISSUES NOT REACHED BY THE COURT OF APPEALS AND RELIEF NEVER SOUGHT BY PETITIONERS IN EITHER OF THE LOWER COURTS
Petitioners' prayer that the Court grant certiorari to address issues related to Jenkins II is wholly unfounded and inappropriate. Petitioners admit the Court of Appeals did not rule on any substantive aspect of the district court's orders, including the district court's analysis of the parties' salary increase settlement agreement in light of Jenkins II. See Pet. 18 n.10 ("The Court of Appeals did not reach the merits due to the 'jurisdictional defect'") id. 7 ("The [C] ourt [of Appeals] deemed Petitioners 'protective' notice of appeal 'ineffective' to confer jurisdiction") . Because the Court of Appeals only decided the procedural question whether Petitioners' postjudgment submissions satisfied Fed. R. App. P. 4, it would be contrary to this Court's precedents to review the merits of the district court's Orders of July 23 and October 23, 1990. Budinich, 486 U.S. at 203 (" [a] court lacks discretion to consider the merits of a case over which it is without jurisdiction" ). In short, this Court has before it no question of federal law, important or otherwise, concerning the propriety of desegregation funding under Jenkins II. Accordingly, review should be denied on the second question presented by Petitioners.
Petitioners' discussion of due process issues unrelated to Jenkins II also makes clear that the Petition raises no serious issue of the misapplication of Jenkins II. Petitioners assert that the district court employed inadequate procedures at its fairness hearing, by giving insufficient consideration to the views of persons potentially affected by the parties' proposed salary settlement agreement. The validity of this contention is an issue separate and distinct from the question whether the district court au-

13
thorized a tax increase using minimally obtrusive methods, as Jenkins II requires. Contrary to the suggestions of Petitioners, see Pet. 18-20, Jenkins II has nothing to say about the proper conduct of a "fairness hearing." Moreover, Petitioners fail to present any support for their allegation that this Court's decisions indicate the district court's fairness hearing procedures denied them adequate notice and a meaningful opportunity to present their views. 11 In any event, this Court should not address due process issues the Court of Appeals did not reach before dismissing Petitioners' appeal.
Finally, Petitioners make an outlandish request that this Court grant certiorari in order to adopt six "specific principles" to guide the lower courts' review of any future desegregation-related property tax levy increase proposals. See Pet. 20-22. Most of the propositions favored by Petitioners never have been presented to either of the lower courts.12
In effect, Petitioners ask this Court to issue an advisory opinion, in contravention of its duties under Article III of the U.S. Constitution. The Court previously has stated that it will not reach such questions "abstracted . . . from the immediate considerations which should determine the disposition of [a] motion [] to dismiss . . . ." United States v. Fruehauf, 365 U.S. 146, 157 (1961) . In addition, "it is quite clear that 'the oldest and most consistent thread in the federal law of justiciability is
11 Thus, Petitioners' due process arguments present no important federal legal issues. Rather, granting certiorari to consider such matters would require the Court to act as a finder of fact, a task it has consistently held it should not assume. See Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987).
12 Several of the pronouncements desired by Petitioners not only raise new issues for the first time in this Court, but also are inconsistent with Jenkins II. For example, Petitioners' Points 2 through 5 would impose requirements on the district court and the parties beyond those the Court approved in Jenkins II. See Pet. 21-22.

14
that the federal courts will not give advisory opinions.' " Flast v. Cohen, 392 U.S. 83, 96 (1968) . Accord Mistretta v. United States, 488 U.S. 361, 385 (1989). As this Court noted in Fruehauf, advisory opinions are inappropriate because they constitute "advance expressions of legal judgment" upon "unfocused" issues "not pressed before the Court with that clear concreteness provided when a question [is] precisely framed and necessary for decision." 365 U.S. at 157. Therefore, it would be inconsistent with Article III for the Court to use the Petition in this case as an open-ended "opportunity to instruct the lower courts and the parties," Pet. 8, on matters not properly before it.
CONCLUSION
For the foregoing reasons, the Petition should be denied.
Respectfully submitted,

ARTHUR A. BENSON, II
ARTHUR BENSON & ASSOCIATES
Suite 1125 1000 Walnut Street Kansas City, Missouri 64106 (816) 842-7603 Counsel for Respondents Kalima Jenkins, et al.
SCOTT A. RAISIIER JOLLEY, WALSH & HAGER, P.C. 204 W. Linwood Kansas City, Missouri 64111 (816) 561-3755
Counsel for Respondent American Federation of Teachers, Local 691
Counsel of Record

DAVID S. TATEL
ALLEN R. SNYDER * PATRICIA A. BRANNAN DANIEL B. KOIIRMAN
HOGAN & HARTSON
555 Thirteenth St., N.W. Washington, D.C. 20004 (202) 637-5741
SIIIRLEY WARD KEELER
BLACKWELL SANDERS MATHENY
WEARY AND LOMBARDI
Two Pershing Square 2300 Main Street Kansas City, Missouri 64141 (816) 274-6816
Counsel for Respondents Kansas City, Missouri School District, et al.

November 23, 1992

 
 No. 92-539

IN THE
,$uprtint Court of tire Xiniteb tizztes
OCTOBER TERM, 1992

ICELEAN CLARK, et al., Petitioners,
VS.
KALIMA JENKINS, et al., Respondents,
VS.
STATE OF MISSOURI, et al., Respondents, and
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Respondents.

BRIEF OF RESPONDENTS STATE OF MISSOURI, ET AL., IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

*Counsel of Record

WILLIAM L. WEBSIhR Attorney General
MICHAEL. J. FIELDS* Assistant Attorney General
BART A. MATANIC Assistant Attorney General
8th Floor, Broadway Building 221 W. High Street, P.O. Box 899 Jefferson City, Missouri 65102 (314) 751-3321
Attorneys for Respondents

COUNTERSTATEMENT OF QUESTIONS PRESENTED
1. Whether the Court of Appeals properly dismissed the petitioners' appeal as untimely?
2. Whether the Court of Appeals' judgment presents any reviewable issues regarding the merits of the district court's order approving two years of funding for staff salaries as a desegregation expense?

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS PRESENTED
TABLE OF AUTHORITIES

Page
i iv

OPINIONS BELOW

1

COUNTERSTATEMENT OF THE CASE

1

REASONS FOR DENYING THE WRIT

6

I. THE COURT OF APPEALS PROPERLY

DISMISSED THE CLARK GROUP'S AP-

PEAL FOR LACK OF JURISDICTION

6

II. THE ISSUE OF THE PROPRIETY OF THE

DISTRICT COURT'S SALARY ORDER

IS NOT PROPERLY BEFORE THIS

COURT

6

CONCLUSION

8

- iv —

TABLE OF AUTHORITIES

Cases:

Page(s)

Jenkins v. Missouri, No. 77-0420-CV-W-4 (W.D. Mo.

July 25, 1989)

2

Missouri v. Jenkins, 495 U.S. 33 (1990)

passim

No. 92-539
IN THE
c*uprettte CI:Erfurt of the pnittlY c$tates
OCTOBER TERM, 1992
ICELEAN CLARK, et al., Petitioners,
VS.
KALIMA JENICINS, et al., Respondents,
VS.
STATE OF MISSOURI, et al., Respondents, and
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Respondents.
BRIEF OF RESPONDENTS STATE OF MISSOURI, ET AL., IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI
OPINIONS BELOW The decision of the Court of Appeals has been reported as Jenkins v. Missouri, 967 F.2d 1245 (8th Cir. 1992). The district court's opinions are unreported.
COUNTERSTATEMENT OF THE CASE This is another petition for writ of certiorari filed by a group of would-be intervenors in the Kansas City school desegregation

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case. This case has previously been the subject of an opinion of this Court, Missouri v. Jenkins, 495 U.S. 33 (1990). Most recently, this case was the subject of a petition for writ of certiorari filed by the same group of would-be intervenors in Clark v. Jenkins, No. 92-69. This Court denied the petition for writ of certiorari filed by the Clark group on October 13, 1992. Id., 61 U.S.L.W. 3284.
In this petition, the Clark group challenges the dismissal of its appeal by the United States Court of Appeals for the Eighth Circuit on the ground that they did not file an effective notice of appeal. Pet. App. A-3. Consequently, the Court of Appeals dismissed the appeal for lack of jurisdiction. Pet. App. A-6. As the United States Court of Appeals for the Eighth Circuit noted, the chronology of events leading up to the appeal was a key issue with regard to the holding. Pet. App. A-3.
As early as its July 25, 1989 order, the district court overseeing this school desegregation case ordered that a salary study be done to compare salaries between the School District of Kansas City, Missouri, (hereinafter "KCMSD") which is a defendant and cross-claimant in this litigation, and other comparable school district staff salaries. See Jenkins v. Missouri, No. 770420-CV-W-4 (W.D. Mo. July 25, 1989). After this salary study was submitted to the court appointed monitoring committee in this case, the Plaintiffs, the KCMSD, and the American Federation of Teachers Local 691 filed motions, in March and April of 1990, seeking desegregation funding for certain staff salaries in the KCMSD. While these proposals varied to a certain extent in terms of types of staff for which the salary increases were sought, each of the proposals sought significant funding for salaries for KCMSD personnel. The State of Missouri Respondents vigorously contested the proposals filed by the other respondents in this action. A significant amount of discovery was conducted and a well-publicized hearing was held over four days, beginning on June 18, 1990. At that hearing, the State Respondents

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contested the salary increase proposals of the other Respondents. However, during the trial, the district court indicated that it favored the salary increase proposals of the AFT, KCMSD and the Jenkins Plaintiffs. Jenkins v. Missouri, No. 77-0420-CV-W4, Tr. June 20, 1990, pgs. 659-61. In order to avoid the possibility of even greater liability and in light of the fiscal impact of the proposals under consideration by the district court, the State agreed to a compromise for a two-year period and the parties proceeded to negotiate a proposed order for the Court.
On July 3, 1990, the district court issued an order scheduling a fairness hearing on the proposed settlement. In this order, the district court indicated that it would receive written objections filed by interested members of the public. The proposed order was published in two local newspapers of wide circulation on July 6, 1990. The newspaper announcements carried the text of the proposed order and gave public notice of the July 17 fairness hearing.
The notice also indicated that the District's share of the proposed settlement would be raised pursuant to an increase in the levy in the District from $4.00 to $4.96 per $100 of assessed valuation. Further details of the plan were also disseminated to the public at a July 3, 1990 press conference held by the parties and a July 12 public hearing held by the KCMSD Board. Representatives of the Clark group attended the July 12 public hearing and addressed the KCMSD Board at that time.
Also on July 12, representatives of the Clark group filed a pleading in the district court indicating their opposition to the settlement proposed by the parties, particularly the tax increase aspect. The Clark group did not, at that time, seek to intervene. Two representatives of the Clark group addressed the Court at the July 17 hearing held to assess the fairness of the proposed settlement of the parties. The district court issued its final order approving the parties' settlement on July 23, 1990. Pet. App. A25. That order set forth the obligations of the parties during the

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course of the two-year settlement, authorized the KCMSD to raise its levy to $4.96 per $100 of assessed valuation, and enjoined enforcement of any laws of the State of Missouri "that would prevent the Board of Directors of the Kansas City, Missouri School District from increasing its tax levy rate to that level." Pet. App. A-29. On August 20, 1990, the KCMSD Board formally approved the tax increase that the district court authorized in the July 23, 1990 order. On August 22 the Clark group, still never having attempted to intervene in the district court, filed what it referred to as a "protective" notice of appeal. It was not until August 28, 1990 that the Clark group actually filed its motion to intervene to seek appellate review. After the filing of the motion to intervene, the AFT, the KCMSD, and the Jenkins Plaintiffs moved to dismiss the protective appeal filed by the Clark group on the ground that there was a lack of jurisdiction.
Thereafter, the district court and the appellate court issued rulings at almost the same time. On October 23, 1990, the district court granted the Clark group's motion to intervene, see, generally, Appendix F to the Petition, and on October 26, 1990, the Court of Appeals dismissed the Clark group's appeal for lack of jurisdiction because they were not parties to the Jenkins case. Pet. App. A-3. The Clark group then sought rehearing by the Court of Appeals of its October 26, 1990 dismissal order, basing its request on the October 23 ruling by the district court. The Clark group filed a second notice of appeal in the district court on November 23, 1990, approximately four months after the July 23, 1990 district court order which the Clark group designated as the subject they hoped to appeal. Pet. App. A-3 through A-4. The Court of Appeals permitted briefing and argument on the rehearing motion. The State joined the other respondents in arguing that the Court of Appeals did lack jurisdiction. On June 30, 1992, the Court of Appeals issued its opinion on the request for rehearing holding that its "initial assessment of the matter was correct — that no effective notice of appeal ha[d] been filed to confer jurisdiction on the court". Pet. App. A-4. The Court of

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Appeals held that because the Clark group were non-parties, their August 22, 1990 notice of appeal was ineffective to confer jurisdiction. Pet. App. A-4. The Court of Appeals also held that "[t]he second notice of appeal [filed November 23, 1990] was filed grossly out of time, with no attempt made to obtain any extension of the deadline for noticing the appeal. See Fed. R. App. P. 4(a)(4)," Pet. App. A-5. The Court of Appeals agreed that the Clark group "had clear notice as early as July 3 that all the parties to the litigation had agreed to the tax hike." Pet. App. A-5. The Court of Appeals further indicated that the Clark group's failure to move properly for intervention and failure to ask either for an expedited decision on the intervention motion or for an extension of time to appeal defeated their arguments. Pet. App. A-6. The Court of Appeals also indicated "as an epilogue," without reaching the merits, that no showing was made that there was either an abuse of discretion or error of law in approving the settlement. Pet. App. A-6. This petition for a writ of certiorari followed.

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REASONS FOR DENYING THE WRIT
L THE COURT OF APPEALS PROPERLY DISMISSED THE CLARK GROUP'S APPEAL FOR LACK OF JURISDICTION.
On this issue, the State Respondents generally agree with the opposition to the petition for writ of certiorari filed by the KCMSD, Jenkins Plaintiffs, and AFT. The State agrees that the Clark group's failure to take the simple step of moving promptly for intervention when it first became clear that some pecuniary interests of theirs were at stake defeats their ability to argue that the Court of Appeals has placed them in some sort of a "procedural box." Pet. App. A-5.
Therefore, the Court of Appeals quite properly ruled that the appeal should have been dismissed for lack of jurisdiction.
H. THE ISSUE OF THE PROPRIETY OF THE DISTRICT COURT'S SALARY ORDER IS NOT PROPERLY BEFORE THIS COURT.
The Petitioners make a most significant admission at Pet. 18, fn. 10, where they admit "[t]he Court of Appeals did not reach the merits due to the 'jurisdictional defect.' " Pet. App. A-6. By the Petitioners own admission then, the merits are not properly before the Court. The Court of Appeals' judgment therefore simply does not raise any issue as to whether the district court's order, approving two years of funding for staff salaries, was proper according to Missouri v. Jenkins.
While the Court of Appeals did make a statement on the tax issue, it was phrased as a hypothetical and as an "epilogue." Pet. App. A-6. This statement is at best dictum and should not be considered by this Court. As a result, this Court should decline the Petitioners' invitation to rule on any of their proposed principles regarding future implementation of this Court's opinion in Missouri v. Jenkins.

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The State Respondents also note here that, once again, as they did in their petition for a writ of certiorari in Clark v. Jenkins, No. 92-69, the Petitioners frequently cite to the concurring opinion in Missouri v. Jenkins. See, e.g., Pet. 18-20. As the State Respondents pointed out in their brief in opposition to the petition for writ of certiorari in No. 92-69, while the State Respondents might agree with much of what is said in the concurring opinion in Missouri v. Jenkins, particularly on the issues relating to the overall desegregation remedy, and argued against the holding in Missouri v. Jenkins, the views of the concurring opinion did not command a majority of the Court.
Further, this Court, in Missouri v. Jenkins, 495 U.S. at 52, affirmed a procedure approved by the Court of Appeals by which the district court would authorize the KCMSD to submit a levy to the State tax collection authorities, establish a reasonable maximum, and enjoin the operation of any state laws that would limit or reduce the levy below the amount set by the KCMSD. The key distinction that the majority of this Court recognized in Missouri v. Jenkins was that it would be the KCMSD which itself set the levy. Missouri v. Jenkins, 495 U.S. at 51. The levy in question here was adopted by the KCMSD Board in accordance with the procedures approved in Missouri v. Jenkins, and that should close the matter. The procedure did respect "the integrity and function of local government institutions," Pet. 19, and the role of citizen input in these institutions, id., as it was the KCMSD Board, the representatives of KCMSD taxpayers, who set the levy. As a result, this Court should decline the Petitioners' invitation to enunciate any specific principles regarding future operation of this Court's holding in Missouri v. Jenkins.
While the merits are not properly before this Court, the State submits for the record that it initially opposed and continues to oppose desegregation funding for general salary increases for KCMSD personnel. Its agreement to such funding for two years to avoid the possibility of substantially greater liability clearly is

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not an agreement to such funding after the end of the period. This matter was litigated anew in 1992, and the State's appeal of the district court's 1992 general salary funding order is pending before the Court of Appeals.
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted,
WILLIAM L. WEBSTER Attorney General
MICHAEL J. MELDS* Assistant Attorney General
BART A. MATANIC Assistant Attorney General
Broadway Building, 8th Floor P.O. Box 899 Jefferson City, Missouri 65102 (314) 751-3321
Counsel for the State of Missouri, et al., Respondents.
*Counsel of Record

 
 NEWS RELEASE

FOR IMMEDIATE RELEASE

Contact: Shelley McThmas-Bryant 816/418-7549

BOARD ADOPTS PRINCIPLES SIGNALING NEW DIRECTION New Principles Adopted by Board Majority
Kansas City, Missouri, August 8, 1996 - - -The Board of Directors of the Kansas City, Missouri School District last night voted on five principles that signal a new direction and philosophy for the school district.
At that meeting Board President Edward Newsome introduced and received approval, by a vote of 7 to 2, for a motion that directs the school district administration and its legal counsel to embrace five guiding principles as it formulates a transition plan for the district.
"The adoption of these principles represents a major culture shift for this district," stated Newsome.
Continuing Newsome commented: "We believe these principles are responsive to the direction this community wants and needs, and are necessary for us to remove the remaining vestiges of segregation. This Board is sending a clear message that this district is serious about addressing the academic needs of the adjucated victims of past dejure segregation."
PUBLIC INFORMATION OFFICE • 1211 McGee, Room 1006 • Kansas City, MO 64106 PH. (816) 418-7549

Supotintendent Henry Williams, who was attending his first official meeting of the Board of Director', said: "I am quite pleased to get these directives from the Board. I am also pleased that this body shares my belief that educational excellence must be at the foundation of any successful desegregation plan. With these directives, we can develop a plan to give every child in this district the opportunity to achieve his/her maximum potential."
The transition plan is being developed to provide a framework for how KCMSD will operate as it transitions from a State desegregation-funded school district, to one that is no longer operated and funded by court orders. The transition plan will be submitted to the Court in the late Fall.
Stated! Newsome: "The principles adopted by the Board place an emphasis on academic achievement gather than integration."
Attached is the motion and principles as approved by the Board of Directors.
###

MOTION:
Move that the Board of Directors hereby directs the administration, in collaboration with legal counsel, to draft a Transition Plan embodying the following desegregation principles, that

1. Racial isolation (imbalance), in and of itself, is no barrier to academic achievement

2.

(The remaining) racial isolation in the KCMSD will be

eliminated to the extent practicable by improving the overall

quality of all schools in the KCMSD.

3. The primary purpose (function) of future desegregation efforts in the KCMSD is to improve the academic achievement levels of minority children, the adjudicated victims of discriminatory conduct by the State of Missouri and the KCMSD.

4. Programs and initiatives specifically designed to address and eliminate the academic deficiencies of African-American, and other minority students must be developed and successfully implemented in order to eliminate the educational vestiges of discrimination and deJure segregation in the KCMSD.

5. A variety of options, including magnets and non-magnets with a thematic focus (i.e., African-centered), traditional, and neighborhood schools, should be available to all students residing in the KCMSD.

NEWSOME REALTY CO.

8164448977

NEWSOME SPEAKS OUT ON KCMSD
It is very easy to become distracted by a lot of things that are going on in the Kansas City, Missouri School District. What we must NOT lose focus on is what is in the best interest of our students. Our students must be afforded the best opportunity possible---no exceptions, no excuses— to achieve to their fullest potential. And, our students in this district are extremely talented, smart, and full of potential.
Educating our children should not be an after-thought--it must be our primary focus. Sure, other things are important, but they must all point to the impact they will have upon providing the best quality education possible. If the Issue is one of closing schools, then the discourse must be centered around the impact on achieving quality education and the removal of barriers of the past segregation. If the issue is curriculum development and restructuring, the focus must be on providing sound, sane, and solid approaches to reading comprehension, strong analytical and critical thinking skills. If the issue is one of providing strong educational leadership, it must include persons who are unquestionably qualified and who have the demonstrated ability and sensitivity to work in an urban environment. And, if the issue centers around policymakers, the focus must be on persons who have the courage and vision to set aside personal and political agendas, free themselves from

• . • 'Ill_ IT:LIIL

Ult,444 :6:-.1 •

4.amiad.:Abim-ad.=-21a10": F.02

special interests who do not have the interest of students at
heart, and do what is right for students, taxpayers, and patrons of the district.
In spite of attempts at humiliation, intimidation, and ostracization, I will not be distracted from putting forth my best effort, from using my the best judgment, from and continue to be willing to make the necessary sacrifices to give our children the best opportunity possible to succeed.
As I have always done, I will continue to stand up and speak out for (1) sound quality education, (2) fiscal accountability—cutting waste and useless spending, (3) abolishing nepotism and cronyism, (4) saving students from high drop-out, expulsion, and suspension, (5) qualified leadership, (6) meaningful parental and community involvement, (7) allowing students the choice to attend schools as close to their own homes as possible.
These are the kinds of things that people all over this district and city have spoken to me about. These are the kinds of things for which I was elected, and with God's help, will continue to do.

Edward J. Newsome
At-Large School Board Member
Kansas City, Missouri

 
 • i
AGREEMENT
This Agreement made this cRi sTiday of May, 1996 by and between the State of Missouri, its governor, its treasurer, its State Board of Education and its Commissioner of Education (hereinafter collectively referred to as the "State") and the Kansas City, Missouri School District, its Superintendent and Board of Education (hereinafter collectively referred to as "KCMSD" or "School District").
WITNESSETH:
WHEREAS, the State and School District are parties to a lawsuit entitled Jenkins v. Missouri, No. 77-0420-CV-W-4 (W.D. Mo)(hereinafter referred to as the "Lawsuit"), which Lawsuit has resulted in court orders requiring the adoption and implementation of extensive desegregation remedies in the School District since 1985 for the purpose of eliminating the vestiges of the former de jure segregated school system in the KCMSD;
WHEREAS, to date, the State and School District have implemented extensive programs costing in excess of $1 billion for the purpose of eliminating the dual school system in the School District;
WHEREAS, the Court has called upon the School District to plan for the day when no additional State desegregation funding will be available;
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WHEREAS, the State and School District believe that the time has come for phasing out court supervision and that the State will have fulfilled its constitutional obligations with the payments set forth in this Agreement;
NOW THEREFORE, in consideration of the mutual promises set forth below, the undersigned parties agree as follows:
1. FY 1996 PAYMENTS. For fiscal year 1996 (July 1, 1995 through June 30, 1996) the only funding the State will be required to provide over and above the amounts the School District is entitled to receive under the Foundation Formula and other regular forms of state aid are the amounts set forth in the Joint Stipulation and the Interim Agreement between the parties to the Lawsuit dated February 17, 1995, and July 7, 1995, respectively, and any amounts owed by the State for its share of any currently-unreimbursed court-ordered capital improvements work (including staging, asbestos, Oversight Team, and furniture costs) for FY 1996 or earlier years paid or incurred through June 30, 1996.
2. FY 1997 THROUGH 1999 PAYMENTS.
a. For fiscal years 1997 through 1999, the only funding the State will be required to provide over and above the amount the School District is entitled to receive under the Foundation Formula and other regular forms of State aid is $314 million in desegregation revenues payable to the KCMSD as set forth below in this paragraph:
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FY 1997 (July 1, 1996 - June 30, 1997) $110 million.
FY 1998 (July 1, 1997 - June 30, 1998) $105 million.
FY 1999 (July 1, 1998 - June 30, 1999) $99 million.
b. Said amounts shall be payable as follows: If final court approval of this Agreement is not obtained by June 30, 1997, any remaining portion of the $110 million appropriated by the State for FY1997 shall be paid into an escrow account created by the State, which escrowed amount may be used by the State to fulfill its obligations under this Agreement. The same escrow arrangement may be used by the State for subsequent years if final court approval has not been obtained by the end of such fiscal years. Upon the final approval of this Agreement by the Court, the State shall pay to the School District all amounts due through the date of final court approval, minus any prior payments made for such fiscal years for which the State is entitled to credit pursuant to this Agreement.
The remaining amounts payable under subparagraph a shall be paid in monthly installments. If the Agreement is not approved, any amount paid into the aforesaid escrow account will revert to the State. The State, at its sole discretion, may at any time elect to pay in advance any remaining amounts due under this Agreement. In such event, the remaining amount payable by the State shall be equal to the present value, utilizing the then-current rate for one-year U.S. Treasury bills, of the amounts not yet paid under subparagraph a. Final court approval of
3

this Agreement shall occur when the District Court approves the Agreement and such approval has been upheld by the appellate courts, or all appeals or requests for review have been dismissed, whichever occurs earlier.
3. NO FURTHER PAYMENTS REQUIRED. The State shall not be required to make any further payments to or on behalf of the School District for years subsequent to fiscal year 1999 (other than amounts the District is entitled to under the Foundation Formula and other regular forms of State aid provided for under Missouri law), and the payment by the State of the amounts set forth in paragraph 2 above shall complete the State's obligation to fund or otherwise provide for desegregation remedies in the KCMSD.
4. FINAL COURT ORDER RELEASING STATE. Upon final approval of this Agreement by the Court and the payment of all amounts set forth in paragraph 2 above, the parties agree that the State shall be entitled to a Court order (a) dissolving all outstanding injunctions against it in the Lawsuit, (b) dismissing with prejudice any and all claims, causes of action or appeals that have been made against the State or could have been made in the Lawsuit, and (c) fully relinquishing jurisdiction over the State in the Lawsuit. When the State has made all payments under this Agreement, it shall notify the Court and parties to the Lawsuit that all such payments have been made, and the State shall thereupon be entitled to the aforesaid court order without further hearing or notice. Until such payments are made, the Court shall retain
4

supervisory jurisdiction over the State; however, the Court shall not impose or order any further obligations on the State and the State's only obligations during such period shall be those set forth in this Agreement.
5. INVESTMENT FOR FUTURE YEARS. The parties agree that the purpose of the foregoing payments by the State to the KCMSD is to provide the KCMSD with a source of funds not only for the next three years, but for future years. Therefore, the parties agree that the KCMSD shall set aside a portion of the funds being provided by the State for use in years subsequent to fiscal year 1999. The parties further agree that KCMSD's ending balance for FY 1996 shall be set aside for use in future years, except to the extent that KCMSD's plan for FY 1997, described below in paragraph 10.a, applies a fixed portion of that balance to the FY 1997 budget, and subsequent years' budgets that continue comparable expenditures.
6. FAIRNESS HEARING. Upon the execution of this Agreement, the undersigned parties agree to present the Agreement to the Plaintiffs and to the AFT as quickly as possible and to use their best efforts to obtain their consent to the terms of the Agreement. If the plaintiff and AFT consent to the terms of the Agreement, then the parties shall present the Agreement to the Court for approval under Rule 23.1 of the Federal Rules of Civil Procedure and shall cooperate in seeking to obtain court approval of the terms of the Agreement. The State and KCMSD shall share equally the costs of giving the required notice under said rule.
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7. MOTION FOR APPROVAL. If within 10 days after the execution of the Agreement by the State and KCMSD, the other parties to the Lawsuit have not consented to the Agreement and agreed to join in a motion to the Court for its approval, the KCMSD shall join the State in moving for a court order that, subject to its making of the payments provided for in this Agreement, the State has fulfilled its desegregation obligations respecting the School District, that the Agreement be approved, and that the State should be dismissed from the Lawsuit upon the fulfillment of its obligations under the Agreement. At its discretion, the KCMSD may move for unitary status; however, the State's entitlement to a dismissal of the Lawsuit against it shall in no way be contingent upon the KCMSD's moving for or obtaining unitary status.
8. LOCAL SCHOOL PROPERTY TAX: KCMSD's property tax levy rate is currently set at $4.96 pursuant to Court order establishing that rate as the maximum limitation on the local school property tax, and KCMSD Board action setting that rate. The parties shall jointly support existing court-ordered financing, except for any orders requiring State financing other than the State payments set forth in the Agreement, until such time that the District is declared unitary, after action by the Court, or the voters change the rate.
9. AGREEMENT SUBJECT TO COURT APPROVAL. This Agreement is contingent upon Court approval, and, except for paragraph 10 below, shall not become binding on any of the parties unless and until final court approval, as defined in subparagraph 2, is obtained.
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10. INTERIM PAYMENTS.
a. The parties hereto recognize that, unless plaintiffs and AFT consent to the Agreement, final approval of the Agreement may be delayed for several months or more. Therefore, the parties agree to the following interim procedures for payments required by court order prior to final Court approval of the Agreement. The KCMSD has filed a motion with the Court for approval of a proposed desegregation remedy for the next five years ("KCMSD FY97 Plan"). The Court has scheduled a hearing on said motion, as well as the State's motion to enforce the June 1995 Supreme Court decision, beginning June 3, 1996. The KCMSD FY97 Plan has requested $74,202,644 (hereinafter referred to as "97 Budget Amount") in State funding for FY 1997, with the remainder of the funding for the FY97 Plan to be paid by KCMSD ("KCMSD 97 Budget Share"). Notwithstanding any other provision of this Agreement, the State agrees to pay the 97 Budget Amount for FY 1997; provided, however, that any amounts paid by the State for FY 1997, including all amounts ordered in excess of the 97 Budget Amount and any amounts payable for capital improvements under prior court orders (other than those referred to in paragraph 1), shall be credited against the amounts payable under paragraph 2 above in the event this Agreement is approved by the Court. For example, if the Court approves the KCMSD request of the 97 Budget Amount in State desegregation funding for FY 1997, the State shall pay such amount; however, the remaining amount payable under paragraph 2 above, assuming it is approved by the Court, for FY 1997 shall be $110 million minus $74,202,644 and any subsequent capital improvement payments made by the State under prior court orders.
7

b. KCMSD has submitted a Desegregation Remedy Plan and supporting budget that includes specific expenditures by category and results in carryover and contingencies that are critical to subsequent years' operations. In the event that net expenditures or the 97 Budget Amount for FY1997 are increased above the level in the KCMSD Plan, whether by added programs or reduction in these variables, the State at its sole discretion may elect to terminate this Agreement. If the State does not elect to terminate the Agreement, then the total amount of State payments required under paragraph 2 above shall be increased as follows: If the amount of State funding ordered for FY 1997 in excess of the 97 Budget Amount and/or any increase in the amount of the KCMSD 97 Budget Share (hereinafter collectively referred to as the "97 Excess Amount") totals $5 million or less, the total amount payable under paragraph 2 shall be increased by the 97 Excess Amount. If the 97 Excess Amount is more than $5 million, but less than $18 million, the total amount payable under paragraph 2 shall be increased by $5 million plus 50% of the amount of the 97 Excess Funding greater than $5 million. If the 97 Excess Amount is more than $18 million, the total amount payable under paragraph 2 shall be increased by $11.5 million [$5 million plus 50% X ($18 million - $5 million)]. Any such additional sums would be payable by the State within 30 days of a final court approval of this Agreement.
c. The State's agreement to pay the 97 Budget Amount, together with all or a portion of the 97 Excess Amount, if any, is made in settlement and compromise, and nothing contained in this paragraph 10 shall be construed or interpreted by the parties as an acknowledgment by the State that the amount sought by the KCMSD represents the desegregation costs payable by the State under the June, 1995 Supreme Court decision in the Lawsuit and other case law for the FY 1997 school year. The State's agreement to pay, and KCMSD's agreement
8

to accept, such sums for the FY 1997 school year shall be without prejudice to the State's and District's rights with regard to the KCMSD's proposals and budgets in subsequent years in the event the Court does not approve this Agreement. The State agrees to support the 97 Budget Amount at the June 3, 1996 hearing; provided, however, that the State reserves the right to object to or rebut any evidence which would affect the amounts payable by the State for years after FY 1997.
d. In the event this Agreement has not received final approval as defined in paragraph 2.b, above, by March 1, 1997, the KCMSD shall seek approval of its proposed remedial plan and associated budget for the next fiscal year, including State desegregation funding, if any, from the Court. Depending on the proposed plan, the State may or may not oppose it; provided, however, that whatever amount, if any, the State is required to pay for subsequent years shall also be applied to reduce the payments provided for under paragraph 2 hereof. No excess amounts will be added to the payment required in paragraph 2 for any years other than fiscal year 1997.
11. FUNDING OBLIGATIONS LIMITED. Upon final approval of this Agreement, the State's funding obligations to KCMSD shall be limited to those set forth in this Agreement, and all other funding obligations to KCMSD under the Court's prior orders shall cease, including any responsibilities of the State for joint and several liability and any payments for operations or capital improvements, including, without limitation, all payments required under current court orders, except asset forth noted in paragraph 1, above. In addition, upon final
9

approval of this Agreement, any and all claims, causes of action, or appeals that have been made or could have been made by the State against KCMSD, including claims for restitution, reimbursement, or repayment in any form of any payments made by the State to implement desegregation remedies that have been ordered in this Lawsuit or to implement this Agreement, also shall be dismissed with prejudice. The parties also covenant not to challenge the legality of this Agreement at any time in the future.
12. SEVERABILITY. The terms of this Agreement are not severable, except paragraph 10 above. Should any provision of this Agreement, except paragraph 10 above, be disapproved or not implemented by any court, the parties may withdraw their approval of this ' Agreement, without any prejudice to their legal rights and positions based upon the fact of entering into the Agreement.
13. COURT APPROVAL REQUIRED. The parties recognize that this Agreement is subject to Court approval. The parties agree to cooperate in urging the Court to approve this Agreement and the terms thereof and to cooperate in presenting said Agreement to the Court. The parties shall cooperate with each other in making documents and witnesses available and in otherwise preparing for any hearings required, including any fairness hearing under Rule 23.1 and hearings on the parties' motions pursuant to this Agreement.
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14. COUNTERPARTS. This Agreement may be executed in multiple counterparts, and each counterpart shall be deemed an original.
AGREED TO, thisoZ1 rday of May, 1996.
Jeremiah (Jay) W. Nixon Attorney General of the State of Missouri By:
R. Munich eputy Attorney General Counsel for State Defendants KCMSD By: Edw. Newsome Presi. ent
11

 
 Mcv-iezt !nfoimation Services

DetinUive ;wars Through Market Research

ID)

A QUALITATIVE REPORT ON
ATTITUDES TOWARD MAGNET SCHOOLS

Submitted To: THE KANSAS CITY MISSOURI SCHOOL DISTRICT
March 3, 1986
6314 Brookside Plaza Suite 302 Kansas City, MO 64113 (816) 363-6587

,1

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Se- VW

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GM 1:1- =It 1=

MI ES 1ES ES ES EE

yew

SUMMARY OF FINDINGS
Awareness and Attitudes Toward Maznet Schools
1. In all the resident sample segments, there was at least some awareness of magnet schools exhibited with most respondents being familiar with the Lincoln Academy. As might be expected, the KCMSD public users had a greater awareness of the current magnet schools within the district. A number of perceptions relative to magnet schools were volunteered but the only consistent ideas mentioned were:
- they are public schools with voluntary enrollment
- they have specialized curriculum for higher academic achievers/gifted and talented students
- they are designed to attract non-minority students back into public schools to help desegregate the district.
2. Among those most familiar with magnet schools (including current users), there was the opinion expressed that these schools *ere a disappointment. Respondents commented that while the concept was good, the current programs had not been implemented effectively and/or were only partially successful. This reflects that, there may exist some degree of negative public bias toward magnet schools.
9. Prior to the discussion of specific magnet school concepts, respondents were exposed to a core description of magnet schools. On an overall basis, there was a moderate level of interest expressed relative to the development of magnet schools in the Kansas City Missouri School District. Within the three resident segments, the highest level of interest was shown by current KCMSD public school users and the lowest level of interest was reflected by suburban residents.
4. Among the KCMSD Public School Users, the relatively high level of interest in magnet schools was primarily generated by their low level of satisfaction with regular public schools. These parents recognized magnet schools as representing an opportunity for a higher quality of education than their children currently received.
5. Among the KCMSD private school users there was a moderateto-low overall level of interest evidenced. Attraction to magnet schools in these groups was evidenced among parents whose decision to enroll their children in private school* was driven by their poor perceptions or experiences with public schools rather than as a choice of preference. However, most of these people indicated that their enrollment could only successfully be solicited after the magnet schools were "tested" and proven effective.

Among the three suburban resident samples, the only group displaying a potential for future enrollment was the South Suburban panel comprised of parents from the Center, Hickman Mills and Raytown Districts. However, it may be anticipated that any enrollment from these areas will be slow and based upon their perception of the quality and uniqueness of magnet schools as compared to their own public schools.
7. Throughout the groups, there were several attitudes espoused by parents in consideration of magnet schools. These perceptions and issues must be considered as a part of the magnet development program as they may directly effect the initial success and potential growth of any specific magnet school.
B. First, one of the strongest attitudes expressed was that residents considered it much more important and preferable to have the quality of education improved in current public schools in lieu of the development of new specialty schools. Although current KCMSD public school users were particularly adamant on this issue, both the private school users and suburban groups also reflected this opinion. In essense, these people felt that if public schools were what they "should be", there would be no need for magnet schools.
9. In general, all respondents recognized that magnet schools appeared to represent an opportunity for a higher quality of education and academic achievement within the KCMSD. However, there was a strong perception that the development
of magnet schools could result in a two-tiered educational
system. This attitude related to the respondents' image that magnet schools were designed for and would primarily draw students with higher academic capabilities. Thus, students remaining in regular public schools would not have the same advantages or quality of education.
10. In all resident samples, respondents indicated that their current perceptions of the KCMSD affected their reaction to and interest in the development of magnet Schools. Panelists stated that the concept lacked credibility due to what they saw as the current poor state of the public schools and felt that administration would have difficulty developing effective new schools in addition to handling present facilities. A few people admitted their images were a result of recent publicity while others related personal experiences with their children in public schools.
11. In addition, a disadvantage associated with the concept of magnet schools was the foreseen element of bussing children to schools outside of their neighborhood. Parents speculated that the children would have lengthy bus trips to schools in areas that were not as familiar or "safe" as those in their own neighborhoods. This was a particular concern for elementary level children whom parents felt should spend no longer than 20-30 minutes maximum in transit. In this regard, the locations chosen for magnet schools will be important.

Evaluation of Specific Mullet School Concepts

1. There were a total of five magnet school concepts (2 ' elementary and 9 secondary) exposed for consumer reaction:

* The Academic Academy - elementary * Math and Sciences - elementary * College Preparatory - secondary * Business Management Academy - secondary * Math, Science, and Engineering - secondary

2. The majority of respondents throughout the groups indicated
they would be more likely to enroll children in a magnet school at the secondary level (particularly 9th grade and above) than at the elementary level. Parents explained that they felt elementary students primarily needed a wellrounded curriculum of the basics and that any extra emphasis was neither necessary nor could be handled by young children.

3. Panelists also repeatedly volunteered that small children

did not show specific areas of interest or talent at least

until the third or fourth grade, making the selection of an

elementary program emphasis difficult, if not impractical.

11

4. Of the two elementary concepts, there was more interest

expressed in the Academic Academy. The majority of the

respondents in all three resident samples indicated they

would have a greater tendency to select this magnet school.

The Academic Academy was seen as preferable because it

offered a more rounded/diversified curriculum which

respondents perceived as being more appropriate for an

elementary level and as having wider appeal.

5 Among the three secondary magnet school concepts, the College Preparatory and the Math, Science and Engineering programs generated the strongest appeal. Respondents felt these two programs would apply to the greatest number of people and better addressed the interests and needs of secondary students on an overall basis.

6 There were a number of elements inherent in the magnet

school concepts that parents found particularly appealing

and which would potentially influence enrollment in a

positive manner. It was indicated that these aspects should

continue to be a part of the considerations for magnet

school plans.

0

Elementary Concerts

Beondary Concept

*Lower enrollment and better *Lower enrollment and'

teacher-pupil ratios

better teacher-pupil

(1/15-18)

ratios (20/1 or below)

*Higher-order thinking skills *High academic standards

11

*Specialists on staff

*A structured, disciplined environment

*Flexible nine-month sessions

*High tech/state-ofthe-art equipment

*Structured, disciplined environment

*Programs which can be recognized as motivating and challenging

*Air-conditioned facilities *Counseling staff

After each concept was discussed, potential school sites were exposed for respondent reaction. The locations or areas presented relative to the individual concepts were:

* The Academic Academy: Westport/Valentine or Swope Park area

* Business Management Academy: KC Tech Center, Westport or Swope Park area

* Math and Sciences: Waldo or Swope Park area
* College Preparatory: Lincoln Academy or Westport area

* Math, Science and Engineering: Lincoln Academy, Westport or Swope Park
area

8. Respondents in all the groups generally felt that their child's school should be within 5 miles of home. As previously mentioned, parentstrmore sensitive to school locations for their elementary u ents whom they preferred within 1-2 miles or 10-15 minutes away. From this standpoint, few if any of, the proposed sites were considered appealing or feasible by most of the respondents in this study.

9. Throughout the groups, respondents voiced several questions and concerns that may require addressing prior to and/or during recruiting efforts.

* The source of funding for magnet schools and, the financial effect relative to either/or, taxes and regular public schools.

* The standards or criteria to beset for magnet school enrollment -- academic and administrative.

* The perception that magnet schools are designed only for the academic "elite" or advanced rather than for'
"normal" students.

* The types of extra-curricular activities that will be available.

* The school's allowance for and interest in having parental involvement.

it

1111 II SI

ariLIVIN

II III CI 12

to us

A GENERAL ATTITUDES TOWARD CURRENT SCHOOL PROGRAM
1. school Selection Factors
- When considering a school for their child, parents' primary consideration is the "quality of education" in that school. Quality education, however, can be represented by different attributes. A AAA rating, reputation, strict discipline and supervision, qualified teachers, socialization with students of different backgrounds and races, college preparedness or religious instruction were the primary attributes associated with "quality education" with various parent groups. While the relative importance of these factors differed among parents, most parents stated that they would switch, and some even had switched, their child's school if the academic performance was not acceptable.
For most parents, the discipline exerted by teachers and administration is as important a criteria as the quality of
Iy lnn fact, many feel that a school is unable to reach an acceptable level of academic performance without strict disciplinary guidelines for the students. The following verbatim comments express most resondents' reactions --
Discipline is the most important thing.
* I don't think you can have education unless you've got discipline with it.
* It wasn't that way when I was in school...the teachers could box your ears, and I think maybe they should still...within reason.
* Academics first and then discipline...they should work together. If you can't hold the classroom's attention, you're not going to teach them.
- Convenience to home is a major influence on school selection for most parents. This factor correlates strongly with bussing since, in cases of sickness or after-school activities, working parents have difficulty getting the student home. Thus, being totally dependent on busses is inconvenient according to most parents.
* ...Not having to be transported across the freeway ...I really want my children to walk to school.
14

* I'm not totally against bussing. But I'm against shipping your kids one-half hour to an hour away from home...if they ship my kid one hour away from my house and I have to go to school to get him, I'm going to have a drive.
* You choose an area because it's close to the school and you like the school...you make your financial commitment and all of a sudden your children aren't going to that school anymore...they bus them one-half hour to an hour and a half to a school that is not your neighborhood school. If you live in an economically depressed area and don't have two cars, what happens if your child gets sick?
- Suburban parents indicated that they selected their family home based on the quality of schooling available in their area. Therefore the school selection was an important ingredient to the whole family's living arrangement. Access/convenience to a good public school was much more of an integral part of buying a home for suburban parents than for 'District ` parents.
* That's why I built the house in the neighborhood I'm in...so they could go to that school.
* You buy in a neighborhood with a neighborhood school.
* When we wanted to buy a home, we started looking up here, in this district.
* When we purchased our home we wanted it within walking distance of an elementary school...I made sure it was an AAA-rated district.
- Parents in general were very cognizant of their district's academic rating. District parents were well aware of KCMSD's AA-rating while suburban parents recognized their districts' AAA-status.
- To evaluate a possible school for their child, parents rely on the following evaluation methods--
* Recommendations from other parents, usually those with older children and more experience with the school.
* Personal observation of the facility, teachersirvt classroom and students.
o
* The school's past success in securing college admissions for its graduates.
* Observed safety of the children, on the bus, in the playground and in the classroom.
* Realtors' advice about where to buy (or not buy) a house due to quality of public schooling.

- School satisfaction is usually a result of parental' involvement as well. Parents' support of a school thrbugh volunteer work or PTA's appears to encourage their sense of control over their child's education.
2. Perceptions of Kansas City School District
- Among those parents who do not currently send their child to public school in KCMSD, perceptions were primarily critical and founded on media coverage, word of mouth, and in some cases, personal experience.
- Many private school parents who live within KCMSD had had their children in public schools at one time but removed them. Their reasons: below standard education/academic performance, lack of physical security and fear of no college admission.
* The kids would get in fights in the bathrooms. Kids would gang up on each other. That's when they were really little and that's why I decided to send them. [to public school]...where they would be safe.
*'`You have no choice [in Kansas City] because the public school system is so bad.
* ...in the [Kansas City] public grade schools if they tell you that your child is doing average you think he's doing great. What average means is that if he's a third grader, he's reading at second grade level. That's what their average is.
* There's nobody in this room who would say there is any comparing the public school system in this city with any of this city's private schools.
* We had been led to believe our daughter was doing fine at school. My wife spent a lot of time going up to school and assisting on things. But we found out through testing that our daughter was not doing at all well at school...We went in orbit over that. That's when we became aware of the serious difference between public and private schools.
- Most suburban parents moved to their community to have access to good public schools and stated that living in Kansas City was never an option for that reason. While most of these parents have never tried the District firsthand, the schools' reputation, generated by media reporting and word of mouth, has been sufficient to keep them away.
* Kansas City was out of the question.
* I have heard rumors that in [KCMSD] you may be an English teacher teaching Science, or wherever there's an opening they stick you.
1

* I've heard...that the teachers [in KCMSD] aren't necessarily qualified for whatever they're teaching, especially in the upper grades.
* It's not the bussing per se. It's the overrating of minorities, the lack of security...the gansas City Star Who has put the District as far down as anybody else. In Kansas City, the bussing issue is killing that District.
. Satisfaction with Present School Choice
a. Kansas City District -- Public School Parents
- Public school parents in KCMSD had different views and levels of satisfaction with their child's schooling. Parents in the Northeast and Van Horn areas were constrained financially from sending their children elsewhere. They were extremely dissatisfied with the public schools yet felt they did not have a choice. Their primary complaints were severe lack of discipline and fear of their child's physical safety (at school and on the bus), forced bussing due to closed schools, substandard academic performance, insufficent teachers and large classrooms and inadequate materials.
* I don't like the fact that I live in one part of town and they have to be bussed to another part of town.
* I just don't think the teachers care that much...because when kids can miss 20 days of school and still make a "B", I just don't think [they care].
* They don't have enough books for the kids. I want my boys [grades rand 12 - Nowlin] to bring homework home, and they can't because there's not enough books.
* We got our bus driver that kind, of throws my daughter around whenever he feels like it. She's been bruised two or three times. [junior high student - Bridger]
* ...they have a whole room full of broken computers. Six and seven kids on one little'computer...out of a classof30,theyhad5[computers]thatwOrked': [Van Horn parent]
** They do not have good teachers at Nowlin. I disagree with everything they do there.

* I'm not going to have one of my children going to Northeast...there's too much trouble...violence...the teachers don't care...We are considering moving:
* I mean, where you live is where you have to...if you can't afford a private school, then you go where they say your child's going.
- Southwest Kansas City public parents were much more loyal to their schools. Even though they recognize their schools' shortcomings, they support public education in general and specifically express commitment to improve their area schools
* I believe that I have a basic support of the public schools that exist in my area and that's where my kids are going to go.
*:=I don't necessarily know that my children are getting the best possible education that I could provide them given the resources. But private schools were never, an option in my opinion.
*"I'm happy with the public schools. At Bingham and at Bryant I feel like the teachers I've met are great...My problem is the big classrooms and I think there's a discipline problem.
* Certainly we don't have the best school district anywhere. .but we can do things about that individually.
b. Kansas City - Private School Parents
The primary impetus for selecting private (non-parochial) education in Kansas City is the perception that private school education, regardless of which school is chosen, far exceeds the quality of education available in Kansas City public schools.
* [reason for picking a private school:] I would say quality in the private and , lack 01 quality in the public.
* You have no choice, because the public school system is so bad in Kansas City.
* I asked the people I knew who knew anything about Lincoln Academy and also about Westport and what we came up with was that they both had tendencies to beof' violent.
- As stated earlier, many private school parents in the District have once had their child in public school. They switched to be assured of a challenging academic curriculum, physical safety for their children, college prep programs and a school located close to their home (as opposed to bussing). These parents feel that a private school has more

control over their child -- through smaller class sizes, better school management and stricter discipline. These factors equate to a higher quality of education that is well worth the price.
* ...her friends, they were running into some difficulty in getting to attend the colleges of their choice because of the lack of of proper education at Southwest. She was horrified...by Christmas, she chose to withdraw.
- Parochial school parents are strongly motivated by their desire for a religious education for their child. In fact, religion its even more important to many of these parents than quality of education. Parochial parents have a strong loyalty to their school for this reason and will unlikely switch their child to a non-church supported school for any reason.
- Private school parents do recognize that the disadvantages to their choice are lack of transportation, the financial commitment and a homogeneous student body. Still, these factors do not impinge on their satisfaction given that the school, provides quality education.
* The kids lose touch with the other kids his age in the neighborhood because he's not in the same classes and doing the same things...it tends to be too homogeneous.
* [I would like to see] more racial integration.
- Those private school parents who both work find that day care is more readily available in private schools. This is a motivating factor for private school parents.
c. Suburban - Public School Parents
- Suburban parents appear very loyal to and satisfied with their schools. They report a wide variety of school programs and curricula, strict discipline, convenience, and a great deal of parental involvement. If their child is bussed, the distance is minimal.
* I chose Indian Creek specifically because it'is quality education.
* [The teachers have a] concern for your child. They're a real tight knit group that knows what is going on in that school. And not only in their classes...their counseling staff is great...and the administration is good.
* I have found the special education to be excellent.
19

- Like the Southwest KCMSD parents, suburban parents are loyal to the principle of public education. Their personal involvement and enrollment of their children are the means by which they support the institution of public schooling.
*-"`2 firmly believe in public education...so that belief system tells me that if the people who are, strongly interested in education all go to private schools, then what shape are the public schools going to be in? I believe in a public system that's offered for all people and we have to have people stay in that system who are interested.
- Suburban parents had only negative comments regarding KCMSD.
* The parents' involvement...it's missing there.
* I can make a comparison of our son's being in the band. In recent competition, we saw Van Horn's band...it was pitiful.
* I graduated (in Kansas City District) in 1964...they didn't require the students to do anything, and I'm sure that the discipline went down; the teachers really just gave up.
* I graduated from Southwest. And later on, 15 years later, I had a friend who taught there, and in that period of time it had changed to the point that security guards were in the hallways at all times for the faculty. They had to keep the restrooms locked ...To me that sounds like a juvenile detention facility, not a school.

.16
ATTACHMENT B
//

NIARKET INFORMATION SERVICES

Definitive Answers Through Market Research

6314 Brookside Plaza / Suite 302 / Kansas City, Missouri 64113 / (816) 363 • 6587

MAGNET SCHOOL SURVEY

Presented To The School District of Kansas City, Missouri

January 13, 1986

'"..444.0tAs

Preface
This report outlines the findings from Phase I of the Magnet School evaluation concerning the population's perceptions of the Magnet School program, one aspect of the court-ordered desegregation plan. Survey findings are presented in two sections -- a summarized discussion of findings in Section IV and more detailed findings with supporting data in Section V. An abbreviated discussion of the entire project is provided in an Executive Summary, immediately following this Preface. The reader with avid interest in the research techniques employed, such as methodology and demographic breakdowns of the sample, is guided to Sections II and III.
Market Information Services acknowledges the help and support of Dr. Paul Holmes and Jim Roleke of the Planning, Research and Evaluation Department at KCMSD in the execution of this research.

TABLE OF CONTENTS
PREFACE EXECUTIVE SUMMARY
r , BACKGROUND AND OBJECTIVES
II. METHODOLOGY tI I. SAMPLE PROWILE
IV. CONCLUSIONS V. DETAILED FINDINGS VI. APPENDIX
- Sample Questionnaire

PAGE NO.
1 3 4 6 8 10

EXECUTIVE SUMMARY
In response to the court-ordered desegregation program,.the Kansas City, Missouri School District requested a resident survey which would evaluate residents' interest in the Magnet School program. The study was designed to reflect the Kansas City District and suburban districts' population by examining key demographic and school enrollment groups, as follows:
* Suburban districts -- white parents only, randomly selected from the eleven (11) districts bordering the KCMSD, public and private school enrollees.
* Kansas City District -- Minority and white parents, public and, private school enrollees.
A total of 608 interviews were completed using a stratified sampling method which proportionalized the sample by school district population in the sampling areas. Respondents were parents of, school age children and fit the enrollment and racial categories mentioned above.
The findings indicated that parenta of children currently enrolled in the Kansas City District schools are the most interested in Magnet Schools compared to other parents in the study. These KCMSD families indicate that the high academic standards of Magnet Schools are an appealing alternative to the substandard education they feel their children currently are receiving.
Parents of children who are enrolled in private school, yet who live within the K.C. District, also indicate positive, although lower, interest. About two-thirds of these private-school parents said they would definitely/positively enroll their child in a Magnet School if the programs were of interest.
Those parents in suburban school districts who are most interested currently have their children in public, rather than private, schools; one half of suburban public schooL,parents indicate positive interest in Magnet School enrollment, yet these parents express much more concern regarding bussing, commuting distance and the neighborhood in which a Magnet School may be located.
Among all white parents, those Magnet curricula' which spark highest interest are college preparatory, gifted, math, science and engineering and high-tech programs. Even at the elementary level, a program designed to prepare students for college prep and advanced placement programs in high school received the -greatest interest. Overall, white parents place high importance in college prep curricula.
1

Minority families expressed high interest in Magnet Schools also. While their interest in specific programs was similar to that of white families, they are less interested in college prep programs. Among the two groups, white parents appear more selective and discriminating regarding school programs than minorities. Thus, Magnet School programs should be selected which create the greatest interest among white parents. About three-fourths of the population is aware of the desegregation plan, with suburban families much more aware than parents who reside in the R.C. District. Among those who have heard of the plan, the majority of residents in the entire area do not give their support. Suburban families are much less supportive than District families, 75% of suburban households do not support,the desegregation plan. Phase I of the Magnet School analysis indicated positive interest in this program among minority and white families. Considerations which impact the enrollment decision include:
* Availability of Magnet programs which meet nonminorities' standards for academic excellence
* Neighborhoods in which schools are located * Distance children would have to travel * Bussing being provided Phase II of the evaluation, focus groups with white parents in selected neighborhoods, will provide more depth and direction to the survey findings.
2

I.BACKGROUND AND OBJECTIVES
As part of the court-ordered desegregation program, the Kansas City, Missouri School District was ordered to formulate programs which would transfer black students into primarily white suburban districts and attract white students into the Kansas City public school system. The Magnet School concept is designed to meet the latter objective through the development of specialized schools which offer unique attractive curricula of interest to white student families. The KCMSD was asked to study the public's response to alternative Magnet School themes to test overall interest in the Magnet School concept and relative interest in specific Magnet programs.'
To obtain this information, Market Information Services (MIS) was contracted by the KCMSD to conduct a resident survey encompassing geographic areas governed by the Kansas City school district and those governed by each of the eleven (11) suburban districts. The respondent sample was intended to represent the school district's population by minority/non-minority status and public/private school enrollment.
Specific objectives *of the research were:
1. To evaluate residents' interest in the Magnet school program
2. To evaluate public awareness and support for the desegregation plan
3. To identify those Magnet School themes which generate interest among the population, specifically nonminorities in the suburban areas
4. To obtain preliminary insight into those perceived factors which suppress interest in the Magnet School concept
5. To determine those attributes of their child's education which impact parent's selection of a particular school
Responses to these questions would be examined by the total sample and by key subgroups, i.e. suburban vs. KCMSD residents, minorities/non-minorities, etc.
This project constitutes Phase I of the Magnet School "Program
evaluation. Phase II consists of focus groups to obtain more in-
depth insight into perceptions of the Magnet School program and ' will be completed by March 1.
3

II. METHODOLOGY

To accomplish the stated objectives, a telephone survey was performed with 608 residents of the Kansas City and suburban school districts. Respondent names were drawn randomly (by location) and all interviews were conducted by professional market research interviewers trained on this specific study by MIS staff. The interview itself ranged from 8 to 12 minutes in length; all interviews were conducted from December 5th to 15th, 1985.

The questionnaire instrument was designed by MIS in consultation with the Planning, Research & Evaluation Department, with consideration of study objectives and time constraints regulating content and length of the interview.

The suburban population was represented by the following districts:

1. Park Hill 2. North Kansas City 3. Liberty 4. Fort Osage 5. Independence 6. Blue Springs

7. Raytown 8. Hickman Mills 9. Center 10. Grandview 11. Lee's Summit

The KCMSD provided maps which delineated all school boundaries.

All respondents in the study fit the folloWing required criteria:

* No member of the immediate household was employed in the field of education nor in market research

* Heads-of-household only (male or female)

• At least 21 years of age

* Have at least one child enrolled in a publio,or private school, at either the elementary or secondary level

Have not been previously interviewed on educational topics

MIS devised a stratified sampling plan as the sampling framework which represented proportionately the groups targeted for the
study, as listed below:

4

••••••.-

""". 470,

KCMSD respondents (38% of sample)
- PUblic school vs. private school enrollment - Minority vs. non-minority status
* Suburban district respondents (62% of sample)
- All non-minority status (whites) - Public vs. private school enrollment
The stratified/proportional sample was selected to accurately reflect the true population as represented by these key groups. The study was not designed nor are the results intended to reflect individual subgroup's true attitudes toward Magnet Schools with a high degree of confidence. As a result of the proportional weighting, groups which represent a higher proportion of the population can be examined with greater reliability than, those with lower representation, exhibited by low sample size. Hence, responses of whites in the KCMSD and private school enrollees in suburban areas have lower reliability, since their actual populations are low, compared to the high reliability of responses of larger groups, such as all suburban respondents, suburban public school enrollees and all KCMSD respondents.
The overall sample represents the entire school district population at 95% confidence +/- Werror, i.e. responses may vary at most + 4% or - 4% in the true population. In contrast, whites within the KCMSD may vary at most +/- 17% from the sample's response, a much higher level of error since only 64 respondents fit this category. This variability may be reduced depending on each group's response to a particular question and is discussed under key questions.
No problem occurred during fielding or execution of the survey. MIS required 15% verification of respondents and 100% accuracy in the interviews. Open-ended responses were coded for data entry, with codes approved by MIS. Data processing included cross tabulations of all questionnaire points, analysis of variance testing across sample subgroups and further analysis of the relative importance of school selection factors,
All significant differences stated in the report are significant
at the 95% confidence level.

-k.

III. SAMPLE PROFILE

As stated in the methodology, 38% of the sample (228n) were located in the KCMSD while the remaining 62% (380n) were residents of suburban school districts. Within those categories, the following breakdowns occurred:

Enrollment Public School Private - parochial - nonparochial

Suburban Whites (380)
90%
7 3

ECMSD

Whites Minorities

(64)

(164)

66%

86%

25

11

9

3

Additional demographic characteristics of the sample were:

• 90% of the minorities in the KCMSD were Black, 7% were Hispanic and 3% fit other ethnic categories

White families in the KCMSD had significantly fewer children per household than both District minority families and suburban white families.

• On the whole, 44% of the sample had children in the elementary grades only, 31% were enrolled in
secondary grade levels and 25% had children at both
grade levels.'" This proportion'was consistent across all subgroups of the sample:

Respondents had (on average) 4.2 members in their immediate household- 7.this figure also did not differ across sample groups.

• Household incomes are outlined below. Consistently, incomes of families whose children go to private school were consistently higher than those of public school parents and minority incomes were signif icantly lower than white's. .

6

Average Income*

KC District - total - Non-minorities - Minorities

$21,896 $28,418 $19,208

- Public enrollees -Private enrollees

$29,782 $36,176

Suburban whites - total

$35,685

-Public enrollees Private enrollees

$34,840 $42,929

• Note: 13% refused to answer this question and were excluded from the income averaging.

• In the total sample, 22% of the respondents were male and 78% were female. The higher female ratio is probably due to interviewing during the daytime, necessitated by the study's timetable.

* Within the suburban school districts, the sample was

divided as stated below.

specific quotas by

district were not required, representationn was obtained

from each of the eleven in both the public and

private school enrollment categories.

1. Park Hill 2. North K.C. 3. Liberty 4. Fort Osage 5. Independence 6. Blue Springs 7. Raytown 8. Hickman Mills 9. Center 10. Grandview 11. Lee's Summit

Suburban Districts

Total public Private

(380) (341) (39)

8%

8%

13%

15

15

10

8

8

10

9

10

3

12

11

21

13

13

13

14

15

3

7

8

3

4

4

13

5

4

10

4

5

3

r

7

•■•
IV. CONCLUSIONS
The following statements represent highlights of the Magnet School survey. More detailed findings are outlined in Section V.
1. When selecting a school for their child's education, white families place emphasis on academic excellence, i.e. a college preparatory program along with a good basic academic curriculum. In addition, they want a school that encourages parental involvement and support.
* Whiliethe top educational priority with minority parents is also a good, basic curriculum, minorities are significantly less interested in a college prep program and place more emphasis on remedial help for a child's learning problems.
2. Parents, of children in Kansas City public schools were much less satisfied with the quality of education than parents in suburban districts and parents whose children are in private schools. Only 37% of District parents rated the K.C. District as excellent or very good compared to 73% of suburban public school parents who rated their districts highly.
3. Awareness of the Magnet School, concept is relatively low; about half of the sample had heard of the Magnet School program.
4. White parents of children in Kansas City public schools find the Magnet School concept an attractive alternative to the current quality of education in the Kansas City school system. District parents who were dissatisfied with the District's education were interested in the possibility of advanced academic studies available in Magnet Schools. Over 90% of public school parents in the District would probably/definitely enroll their child in a magnet school if the programs offered interested them.
* Although private school parents in,the District expressed slightly less interest, almost two-thirds of this group were interested in Magnet School enrollment.
5. In suburban areas, about one-half of the white parents with children in public schools expressed positive interest in Magnet Schools in the Kansas City District.
* Suburban families were primarily coneerned'about the distance their child would have to travel and whether the school would be located in a safe neighborhood.
8

* Awareness was much higher among residents of the Kansas City District compared to residents of suburban areas.
6. Lack of interest in Magnet School enrollment is primarily due to parents' satisfaction with their child's current education, especially evident among private school parents and some suburban families.
7 .,White parents in both the K.C. District and suburban
areas would not let their child travel more than thirty (30) minutes to and from school, with 15 minutes as the optimum time limit.
8 :`Those Magnet School programs which generate the most
interest, at both the elementary and secondary levels, emphasize advanced academic studies, i.e. college prep, a gifted program, math and science emphasis and hightech. Specialized career programs were much less popular, i.e. aviation, military and agribusiness. 9. The majority of respondents, especially those in suburban areas, were aware of the desegregation plan. However, most parents do not support the program. * Support was considerably lower among white families
in suburban areas -- three-fourths of these parents are not in favor of desegregation.
9

V. DETAILED FINDINGS
The key findings in this section are organized by issue, covering those topics discussed during the interviews. Major points are supported by specific reference to the data.
A. Attitudes towards Current Education
Respondent's relative interest in various school-related attributes when selecting a school for their child is shown in Table V-1. Highlights from these responses are discussed below.
1. When selecting a school for their child's education, the top 3 criteria among white families are:
* A solid basic academic curriculum
* A challenging program geared for college prep
* A school which encourages input from the parents
These 3 attributes were very important to white families
in both the KC District and suburban areas.
* In addition to these 3 criteria, suburban families express more concern that the child's school is located in a safe neighborhood (note that the importance of these factors relate to selection of any school, not particularly Magnet Schools)
2. Minority families in the Kansas City District are
significantly less interested in a college prep program and significantly more interested in having remedial help available for a child's learning problems.
* However, minority, as well as white, families are mostly concerned that the child gets a good basic
/ curriculum of reading, writing and arithmetic.
3. All families in the study expressed low interest in all day kindergarten and before/after school child care at their school. These factors have a low priority in the school selection process.
4. Suburban (white) families expressed much more interest in bussing their child to and from school than did families in the K. C. District, regardless of race.
* This concern was concentrated among suburban families with children in public schools.

IMPORTANCE SCORES--SCHOOL SELECTION [Table V-1] (in rank order of importance)

ATTRIBUTE Basic curriculum of 3 R's

Suburban Whites
1

KCMSD

Whites Minorities

1

1

Located in safe neighborhood

2

•

Encourages parental: input

3

4

4

3

2

'Has college prep program

4

2

10

Teachers have unique teaching

5

abilities

6

6

Individualized, instruction

6

7

7

School is reasonable distance

7

from home

5

5

Strict student'discipline

8

9

8

Remedial help for learning problems 9

8

3

Bussing is provided

10

12

12

Modern facilities

11

10

9

Socialize with other races

12

and income

11

11

Has unique curriculum

13

14

14

All day kindergarten available

14

13

13

Before and after school child

15

care available

•

15

15

11

* Those families who feel bussing is a priority are
also concerned that the school is in a safe neighborhood and a reasonable distance from home. They appear more concerned about where the school is and how the child would get there compared to white families in the city.
5. Overall, among bath minorities and non-minorities, the opportunity to socialize with children of other races and incomes was of low importance when selecting a school for their child.
6. When asked to evaluate their child's current education, suburban white families who send their children to private school are extremely satisfied with their child's education and more satisfied than any other group (90% satisfied; ref. Table V-2).
* Comparatively, 73% of suburban families in public Schools are satisfied while public school families in the Kansas City District are relatively dissatisfied with their child's education. Only 37% of parents whose children attend the K.C. District express satisfaction with the District schools; the majority (63%) said the education was fair, poor or very poor.

EVALUATION OF CHILD'S CURRENT EDUCATION

[Table V-2]

TOTAL

,Suburban (white)

KC District

PUBLIC PRIVATE PUBLIC PRIVATE

(606)

(340)

(39)

(182)

(45)

*Top 2 box

64%

(Exc. - V. Good)

73%

90%

37%

78%

--Excellent

24

25

62

10

40

--Very Good

40

48

28

27

38

--Good

26

22

5

40

18

--Fair

9

4

20

4

--Poor

1

1

--Very Poor

1

1

B. Magnet School Awareness and Interest
1. Slightly over half of the survey respondents had heard of the Magnet School program. Suburban residents are much less likely to have heard of the program than city residents, In the K. C. District, a two-thirds had heard of the Magnet School program compared to only 44% of suburban residents.

AWARENESS OF THE MAGNET SCHOOL PROGRAM

[Table V-3]

Suburban

K.C. District

Total White Total White Minorities

(608) (379) (228) (64)

(164)

Aware

52%

44%. 64% 64%

65%

Not Aware

48

56

36 36

35

2. Respondents were asked how likely they would be to send their child to a Magnet School in the Kansas City, Missouri School District if the Magnet programs offered interested them. About one-half of all suburban (white) residents expressed positive interest in a Magnet School for their child; most of these respondents expressed tentative interest, i.e. "Probably would enroll."

* White families in Kansas City expressed more positive interest than their suburban counterparts; 7 out of 10 white parents in the Kansas City District indicate some form of positive interest.

* Within both the suburban and Kansas City Districts, those white families who are most interested in Magnet Schools already have their children in public schools. These parents also indicated less satisfaction with their current school situation than parents who were not interested in the Magnet Concept.
•
* As stated in the methodology, MIS examined the reliability of these responses given the sample sizes in this study. For the suburban whitefamilies, the 48% positive (top 2 box) response. indicates a +/- 5% error at a' 95% confidence; thus the response of the true population is probably 4353% interest in Magnet Schools. Considering white
families in the KC District (64 respondents) the true population's response is 59 - 81% interest (+/11% error at 95% confidence). Thus, we can say that 95% of the time white families within the district will be more interested than white families living in the suburban districts.

13

.J

[Table V-4]

LIKELIHOOD OF ENROLLING CHILD IN MAGNET SCHOOL

Total. Samp le . (608)

KC District

Suburban White Minority

(380)

(64) (164)

Definitely enroll Probably enroll Probably not Anroll

15% >62%
47
27

6%

9%

38%

)48%

>70%

>91%

42

61

53

37

23

7

Definitely not enroll

11

15

6

2

[Table V-5]

LIKELIHOOD OF ENROLLING MILD IN MAGNET SCHOOL

Definitely enroll Probably enroll

SUBURBAN

Public Private

(341)

(39)

6%

3%

>49% >31%

43

28

KC DISTRICT

Public Private

(183)

(45)

35%

11%

>91%

>62%

56

51

Probably not enroll

37

36

8

2Z

Definitely not enroll 13

33

1

11

14.

3 Lack of interest in Magnet Schools was due primarily to satisfaction with their child's current school. The secondmost mentioned concern of uninterested parents was the distance their child would have to travel to a Magnet School (ref. Table V-6).
* About 11% of the respondents said they did not want their child in the Kansas City, Missouri school system.
* Another 10-11% of white families currently enrolled in a public school thought Magnet Schools had tuition which they could not afford.

REASONS FOR NEGATIVE INTEREST IN MAGNET SCHOOL [Table V-6]

Satisfied with Current School

SUBURBAN (white)

Public Private

(168) (27)

52%

74%

K.C. District Whites (19) 64%

Distance

20

-0-

16

Don't want child in KC public schools

11

11

11

Can't afford it

10

4

11

Need more information

8

7

9

re: Magnet Schools

Too specialized Dislike bussing

57;

7

6

5

-0-

-o-

Poor locations

3

4

Racial situation in inner city

2

-0-

Discipline/violence

2

-0-

Other/miscellaneous

8

11

3

15

4. Probing the concern about travel time further, six out of ten families (white and non-white) want their child to travel 15 minutes or less to/from school. Much fewer (37%) said they would allow their child to commute up to 30 minutes to school. Very few were willing to let their child travel further than 30 minutes.

MAXIMUM TRAVEL TIME

[Table V-7]

PARENT WOULD ALLOW CHILD TO COMMUTE

Total (605)

Suburban Whites
(380)

KC District

Whites Minorities

(63)

(162)

15 minutes

59%

61%

62%

51%

30 minutes

37

45 minutes

3

1 hour

36
.4,
2 .
ryti

37

40

2

7

-0-

2

5. Magnet School programs which have the most appeal at both the elementary and secondary levels, are those which emphasize more advanced academic studies, such as college prep, a program for the gifted, math and science emphasis and high tech. By grade level,' the themes with the highest appeal across all subgroups of the sample are listed below. The level of interest for the 4 programs not mentioned was significantly higher than interest in other programs. (For a complete listing by demographic group, refer to Table V-8 and V-9).
* White parents in both the suburban and Kansas City districts expressed approximately the same levels of interest in these Magnet themes
ELEMENTARY LEVEL
Hi gh Interest:
for„, 1. An academic program designed to prepare students the colle ge bound and advanced p lacement curricullm high school.
2. A program for gifted children, or those who exhibit advanced intelligence.
3. A program with a math and science concentration.
4. A Montessori program, which emphasizes individualized learning.
16

Low Interest:

5. A performin g arts program, emphasizing fine performing and visual arts.

. An all da y kindergarten, with emphasis upon multicultural learning, the development of positive selfconcept and enriched instruction.

7. A program with forei gn langua ge emphasis.

SECONDARY LEVEL

Hi gh Interest

1. Colle ge p rep aration, with advanced courses and credit for admission to a college or university.

2. A hi gh tech p ro gram, with emphasis on computers and electronics.

3.

Math.

science

and

A
en g ineering

programs_

4. Business mana gement concentration

Moderate Interest

5. Bealth Sciences, to prepare the student for a career in health technology, medicine or nursing.

6. Humanities, with emphasis on language arts, sociology and psychology.

7. Visual and performin g arts.

Low Interest

8. A program to prepare the student for a career in aviation.

9. Military careers, or ROTC, with emphasis on selfdiscipline as well as military careers.

10. Agribusiness, concentrating on management of the agricultural industry.

17

.4 •

MAGNET SCHOOL PROGRAMS

[Table V-8]

ELEMENTARY

- Level of interest (in rank order of interest)

Imam=

Total Suburban KC Whites

Academic College Bound

1

1

1

Gifted program

2

2

3

Math & Science concentration

3

3

2

Montessori-individual learning

4

4

Performing Arts Program 5

5

6

All day kindergarten

6

7

5

Foreign language emphasis 7

6

MAGNET SCHOOL PROGRAMS SECONDARY LEVEL

[Table V-9]

Level of Interest (in rank order, of interest)

as2i3rlan
College prep

Total Zuburban ye Whites

1

1

1

High tech program

2

2

2

Math, Science, engineering

3

3

3

Business Management

4

4

Health Sciences

5

5

Humanities

6

6

1. 4

Visual & Performing Arts 7

7

7

Aviation career prep

8

8

8

Military career . prep

9

9

10

Agribusiness

10

10

9

18

6. MIS examined separately the responses of those families who expressed positive interest in Magnet School enrollment, i.e. they "definitely" or "probably would enroll" their
child in a Magnet School. These families differed from
"uninterested" families in the following ways: * Interested families would allow their children to commute further to school than noninterested families. * Interested families are currently less satisfied with their child's education. * Although overall interest in this factor is still relatively low, it is more important to these parents that their child socialize with children of other races and incomes. * Interested parents place more importance in individualized instruction, strict discipline, highly qualified teachers, a unique curriculum, child care at school and a modern facility. In addition, they are somewhat concerned about the . distance their child travels to school and are more interested in bussing for their children. Overall, they appear more concerned that their child receive a better quality education than he/she is now getting. * Parents interested in Magnet Schools have significantly lower incomes ($27,000 average) compared to uninterested parents ($36,700 average).
19

C. Awareness and Opinion of Desegregation
1. Three-fourths of all respondents in the survey had heard of the desegregation plan in Kansas City, Missouri.
* Suburban (white) parents were significantly more aware of the plan than families (both white and minority) in'the Kansas City District.
* Within the District, white families were less likely to have heard of desegregation than minority households.

AWARENESS OF DESEGREGATION PLAN IN KCMSD

[Table V-10]

Total Samp le (608)

Suburban (whites)
(380)

KC District

Whites Minorities

(64)

(164)

Aware

74%

81%

55%

65%

;

Not Aware

26

19

45

35

2. Among those who are familiar with the desegregation plan, the majority do not support the program.
* Three-fourths of the suburban (white) families said they wore "not in favor" of the plan.
* The most support came from District minorities (54% in favor) while more than half (57%) of the District's whit!, families are not in favor.

OPINION OF DESEGREGATION PLAN

Total
BamPle
(448)

Suburban
(Whites)
(307)

In Favor

26%

13%

Not in favor

58

75

No opinion

15

12

[Table 9-11]

KC District

(Wh(i3t5e)s),

(Minorities)
(106)

4394'

59%

31

21

26

20

RECOMMENDED REVISIONS IN THE FACILITIES RENOVATION REQUIREMENTS
FOR THE LONG-RANGE MAGNET SCHOOL PLAN
JULY 10, 1987
PHALE D. HALE

 
 CLERK U.S. DISTRICT COURT

Exhibits:
P 3758 D

Case No.

0 Liao- cu-w-=)

VOLUNTARY INTERDISTRICT TRANSFER PLAN

TABLE OF CONTENTS

Summary

I. Overview

1

II. Existing KCMSD Desegregation Efforts

4

III. Components For Desegregating Student Enrollments.

IV. Implementation Schedule

7

V. Student Desegregation Goals

8

VI. Voluntary Transfer Opportunities for Students

11

A. KCMSD Enrollments Before and After Voluntary

Interdistrict Transfe r s

11

B . Suburban Enrollment Before and After

Interdistrict Transfer

12

VII. Plan Administration

15

A. Court Master

15

B . Voluntary Interdistrict Management Unit

15

C. Effective Desegregated Education Unit

18

D . Monitoring Office

18

E. Advisory Board

20

VIII. Delivery of Education at Receiving Schools in

Suburban Districts

21

IX. Finance of Interdistrict Transfers

26

X. Magnet Schools

29

A. Guidelines for Establishment and Student

Admission

30

B . Faculties

31

C. Types of Magnet Schools or Programs

32

XI System-Wide Improvements in the KCMSD A. Facilities Rehabilitation B . AAA Classification Components C. Class Size and Student-Teacher Ratios D . Early Childhood Education' E. Secondary School Reorganization and Reform F. Qualifications for Teaching Positions G. Staff Development Staff Develo pment Cadres Special Training for Administrators Staff Development Specialists and Stipends H . Summer Learning Programs I. Alternative Hi gh School Units and Arrangements J . Data Processing Capabilities K . Occupational and Career Education L . Funding of System-Wide Improvements
XII. • Educational Improvements at Schools in the KCMSD A. Effective Elementary School Projects B . Computer Technology C. Early Language Development D. Elementary Counselors and Home-School Coordinators E . Educational Performance Goals
XIII. Kansas Students XIV. Provisions to be Imp lemented if Voluntary Desegregation Plan Fails to Meet Goals

34 34 38 41 43 46 . 47 48 48 49 49 50 50 51 52 53 55 55 57 59
60 60 61
62

Atpendices A. Policies Regarding Voluntary Transfer of Students... B . Faculty Desegregation C. Staff Development Guidelines and Characteristics D . Special Education E . Vocational Education F. Transportation

A-1 A-6 A-12 A-18 A-21 A-25

I. OVERVIEW
The purposes of this plan are to provide desegregated education and ancillary remedial relief for students in the Kansas City, Missouri School District (KCMSD) and to otherwise improve the quality and effectiveness of education for them and other students, so as to overcome the harmful effects of past and current segregation and ensure effective transition to a non-discriminatory, unitary educational system.
Major plan components involving desegregation of students in the KCMSD are: 1) opportunity for transfer of up to 10,000 KCMSD black students to eleven suburban school districts; 2) establishment and operation of magnet schools within the KCMSD, in order to attract white students transferring from suburban districts, and nonminoti_ty students from nonpublic _schools and to-encourage families with children to choose to reside in the KCMSD; 3) actions to improve the effectiveness of instruction at schools in the KCMSD for the same purpose and for the purpose of remedying effects of the segregated school
system; and 4) adoption of a plan to consolidate the KCMSD and
suburban school districts, if desegre g ation goals specified in the plan are not met.
The goals of the plan are that by the fourth year following implementation, all KCMSD schools will be forty to 60 percent white/minority, and the KCMSD student enrollment will be 55 percent minority. The student enrollment in the suburban
-1-

districts will range from 15-40 p ercent minority, de p ending on
the district, and at least 18 percent minority in the suburban districts as a whole.
Much of the desegregation of KCMSD students will be achieved by establishing and operating magnet schools. Magnet schools will be located so as to be accessible to suburban and
nonpublic white stu d ents, and to im p rove building utilization and learning opportunities fcr minority students in the KCMSD.
S y stem-wide improvements to be made in the KCMSD include:
1) facilities rehabilitation; 2) class size reduction and
addition of teachers needed in s p ecial subjects; 3) AAA
classification, includ..ng improvement in library staffing and resources, and counsel:.ng; 4) expansion of early childhood
education, including expansion of pre-school programs for
disadvantaged students,- extended-day kindergarten, and after school supervision of elementary students, linked to the educational program; 5) secondary school reorganization and reform; 6) strenTtheninq of qualifications for teaching
positions; 7) eqp anded staff development; 8) summer learning
programs; 9) alternative high school units and arrangements; 10) improvement in data processing capabilities; and 11) expanded occupational and career education.
Components to improve the effectiveness of instruction at racially isolated schools in the KCMSD include: 1) effective school projects; 2) expanded use of computer technology; 3) programs to improve early language development;
-2-

4) elementary counselors and home-school coordinators; and 5) educational performance goals. A goal of the plan is that by the fourth year after implementation average reading achievement at all schools in the KCMSD will be at or above the national average.

II. EXISTING KCMSD DESEGREGATION EFFORTS
The KCMSD currently meets student desegregation standards agreed to with the federal government during the 1977-78 school term. The student assignment program adopted at that time. consisted of constructing attendance zones to facilitate attendance at desegregated schools; clustering and pairing of some schools to facilitate desegregation; establishment of the Lincoln Academy, Swinney, Volker, and Southwest Cluster magnet schools; and adoption of a voluntary majority-to-minority transfer program to encourage voluntary transfers improving integration. The plan, commonly known as "6C," also includes a commitment to maintain racially balanced staff assicnments, to restrict transfers having a negative effect on desegregation, and to consider desegregation as p ects in making decisions as to school closings or construction.
Numerous factors have inhibited the effectiveness of 6C. The magnet programs and educational improvements were never adequately financed, and loss of the temporary federal funding which supported some of them has required the KCMSD to provide local support to the extent possible, but the programs have been hopelessly crippled. The inability to improve conditions has led to a continued loss of enrollment.
Through transfer of KCMSD minority students to suburban schools, through attracting white students from the suburban districts and from nonpublic schools by establishing magnet
-4-

schools easily accessible to suburban population centers, and through making KCMSD schools more attractive to incoming residents of the Kansas City area, this plan in effect will expand Plan 6C so that the KCMSD has the opportunity to offer truly desegregated, exemplary education to its students and to. students from the entire area willing to transfer to the KCSD in order to receive specialized programs.

X. MAGNET SCHOOLS
Magnet schools are schools which offer specialized curriculum and instruction, and are attended on a voluntary basis by students who elect to p articipate in the soecialized_ opportunities offered there. Recent research indicates that magnets can and do provide high quality education in urban school districts. Magnets also can help bring about stable desegregation, provided that they are planned and implemented effectively as a part of a larger district-wide or area-wide desegregation plan. There are many nonpublic students, both white and black, who reside within the -boundaries of the KCMSD who might be attracted to attend outstanding magnet schools available in the district. Additionally, the existence of such schools, particularly after the y have established a reputation for excellence, can influence families with schcol age children in their housing choices.
Magnet schools to be operated as part of this plan will be full-school magnets. That is, all students who Attend magnet schools will be eligible to participate in the special programs and all other opportunities made available there.
Feasibility of opening a significant number of magnets (illustrated below) during the first year of this plan depends upon availability of full staffing and resources for the KCMSD magnet unit at least four months prior to the Fall semester.

A. Guidelines for Establishment and Student Admission General guidelines for establishing and o p erating magnet
schools will be as follows: 1. At magnet schools which are placed in
currently operating school buildings or are expansions of existing magnets, the enrollment goal will be to attract 50 percent black and otter minority students and 50 percent white students, but in any case no magnet school will have more than. 60 percent black or other minority students or 60 percent white students. In planning for this provision, magnet school locations, school r-closing decisions, and student assignment patterns will be coordinated so that KCMSD schools, to the extent practical, have a minimum of 40 percent black and other minority students. - Attainment of these goals will be made possible by participation in the plan of suburban white students and attraction of white students currently or potentially in attendance nonpublic schools.
2. In general, elementary magnets will be located so as to be easily accessible both to minority and white students in the KCMSD and white students in the suburban districts. All macnets, elementary and' secondary, will be located within reasonable travel time for these populations.

3. Magnet schools generally will not have
admissions criteria based upon previous academic
performance. Interest in the magnet theme and
willingness to participate will be the major
admissions criteria.
4. Pricrity for acceptance of applications will
be as follows:
a. Desegregative effect, that is, contribution to enrollment 50 percent black and other minority and 50 percent white, and no more than 60 p ercent minority or white.
b. Preference for black students currently en:oiled at schools more than 60 percent minority.
c. Preference for students currently attending the school, living close to the school, and/or residing on an efficient transportation route to the school.
B. Faculties
Faculty at magnet schools will be selected through
app lication for employment at a particular school. Individuals
selected must p)ssess qualifications listed for employment at a
particular s&Jol. The selection process will meet all legal
and affirmative action guidelines. Faculty and other personnel
at each magnet school will be fully desegregated.
C. Types of Magnet Schools or Programs
Elementary magnets which could be established include the
following types:
Basic and Applied Skills magnet, at which a portion of the school day emphasizes basic skills and another part of the day emphasizes application and enrichment of basic skills.
-31-

1
Foreign Langua g e magnet, at which all students study a language other than English to become fluent in a second language.
Fundamental schools, at which systematic emphasis is placed on discipline, high academic standards, and learning of basic skills.
Mastery Learning schools, at which the mastery learning approach (teaching, testing, and re-teaching where indicated for students who do not master all objectives from initial teaching) is used to bring about very large gains in achievement.
Montessori schools, at which emphasis is placed upon individualized learning through teacher guidance and students' interests and abilities are motivating mechanisms.
Open Education schools: at which em phasis is placed on individualized learning-to-learn through exploration in an open classroom environment.
Performing Arts magnets, emphasizing learning in fine, performing, and visual arts.
Science, Mathematics, and/or Technology magnets, which emphasize natural or physical sciences, mathematics, and/or computers and technology.
Secondary magnet schools which may be established include
the following types:
An Agribusiness magnet high school, at which emphasis is placed on careers in agribusiness, petrochemicals, and related areas.
A Business and Commerce magnet high school, at which emphasis is placed on careers in business management, sales, marketing, commerce, and related fields.
NJ
A Health Sciences magnet high school, at which emphasis is placed on health technology, medicine, nursing, and allied careers.
A Law and Urban Studies ma g net high school, at which emphasis is placed on careers in criminal justice, law, and related fields.

A Militar y Careers magnet high school, at which emphasis is placed on development of self-discipline as well as careers in the military.
A Multimedia magnet high school, at which emphasis is placed on careers in journalism, radio and television, advertising, photography, and related fields.
A Science and Technolo gy magnet high school, at which emphasis is placed on careers in the sciences and in advanced technology fields.
A University Pre p ma gnet high school, at which emphasis is placed on p ost-secondary enrollment and offers advanced courses and credit honored by colleges and universities.
A Visual and Performin g Arts magnet high school, at which emphasis is placed on - careers in the fine and performing arts and visual arts.

 
 lommlicE___AmMNSIMO

THE ST. LOUIS DESEGREGATION PLAN A Report to Judge James H. Meredith
United States District Court
by Gary Orfield University of Illinois May 2,1980

7Lit.F. U. S. DISTRICT COURT

Case No.

77-0420-CV-W-4

INDEX

Part I

The Desegregation Orde r and Urban Segregation

Part II The School Board Plan

Recommendations

Part III The Role of the State

Recommendations

Part IV

Voluntary Metropolitan Desegregation

Part V

The School-Housing Relationship
Recommendations

P. 1
P. 9 p. 22
23 p. 40
p. 43
p. 56 p. 72

PREFACE
Assignment and Methods of Work. The assiyuuent of the District Court to serve as a court-appointed expert in the development of the St. Louis desegregation has involved a series of complex activities in a relatively brief period of time. To aid in evaluating the following report I think that it is important that you know the way I have interpreted the assignrent and the manner in which I have carried out the work.
My assignment was not to draw a plan ncr to engage in public disputes over decisions in the plan but to carefully observe the planning process, offer candid advice on planning issues, and to prepare an assessment of the degree to which the school board and the other parties to the case have complied with the order of the Court of Appeals. My task is not to say whether or not the board's plan is the best that might have been devised but whether it represents a serious and reasonable effort to comply with the requirements of the law.
Since the time of my appointment I have been in St. Louis, working with the district's internal ccrrdttee and other concerned participants,whenever my teaching schedule has permitted. I was in the city for the entire third week, when many of the basic decisions were made and have returned for two or three days each other week. I have supplemented the information from the school district with interviews with local experts in demography, housing, community development, and other fields and with examination of many of the official and scholarly reports that have been prepared over the years on the St. Louis metropolitan area and

its schools. To assist me in my work I asked for preparation of data by Frank Avesing of St. Louis University and collection of information on St. Louis County by Richard Patton of the University of Missouri, St. Louis. I commissioned Professor Karen Dawson of Washington University to gather information and conduct interviews relating to the response of the state governrrent to the court order and directed Professor David Colton of Washington University to prepare information about the feasibility of exchanges of students between the city and suburban school systems, as suggested in the Court of Appeals decision. My research associate at the University of Illinois, Marilyn Cohen,conducted telephone interviews and assisted in the library research for this report. In preparing this report I carefully considered the resolutions of the courtappointed Citizens Committee and the cal-rents of attorneys representing the various parties in the case. A series of discussions with the Commissioner of Education and other ranking officials of his department in Jefferson City has given me a better understanding of the role of the state.

2

The Role of the State.

PART III THE STATE In appraising the role of the state

government in implementing the requirements of the St. Louis school

desegregation order I have been guided by the decisions of the District

Court and Court of Appeals in this case, the description of the role

and responsibility of state government in U.S. v. Missouri, a reading

of numerous publications prepared by or for Missouri state education

authorities, a series of interviews with state officials conducted by

Professor Karen Dawson of Washington University and by me in recent weeks,

and by the Supreme Court's ruling about the responsibility of state

government in the second Detroit decision, Milliken II. Based on these

standards and sources of data I have reached a series of conclusions

about what the state has done to aid St. Louis and a series of recommenda-

tions for possible inclusion in the court's order.

Basic Conclusions 1. Education is a state function in Missouri and the state government has historically exercised broad powers over its organization, administration, and content. Those powers and the level of state financing have continued to expand in the recent past. 2. A state, such as Missouri, which operated a dual school system through most of its history, has an affirmative duty to work for desegregation of the public schools. 3. The state has no significant affirmative policy for school desegregation and recognizes no affirmative duty in the St. Louis case. 4. The state has had a basic policy in favor of school district consolidation since 1901. State reports in 1968, 1969, and 1979 have highlighted the immense educational problems caused by the separation of St. Louis .ind suburb.in school districts.

5. The state education officials would support voluntary citysuburban transfers for desegregation but they see no chance of enactment of the state fiscal incentive bill to create the program and very little if any suburban interest in a voluntary program.
6. The state has particularly broad control of the organization, construction, and programs for vocational education.
7. State officials believe that the existing vocational and career education programs are far too small in both the city and county of St. Louis.
8. State rules for transportation reimbursement do not take into account the special costs of desegregation busing, particularly the special costs of magnet programs which reduce problems of mandatory reassignment but require picking up small numbers of children from widely scattered areas.
9. State officials do not favor any expansion of their role in the desegregation process. They believe, however, that if the court is to order an expanded role they must be given an opportunity to insure that educational issues be carefully considered in the process and have full access to financial data and financial plans that will create fiscal obligations for the state.
10. State Department of Education officials will comply with federal court orders and attempt to provide leadership to assure the most successful implementation of any court—mandated change.,..
Education and State Government. State aid increased by more than 500 percent from 1950-1965 and more than doubled during the seventies. It now provides about 43 percent of total educational funding in Missouri. / During the current school year the state of Missouri is

25

spending $859 million on elementary and secondary education and is ex-

ercising a powerful influence on the shape and direction of education

in the state. Next year's budget will be up sharply. The governor's

budget requested $979 million and the legislature has approved an overall 2
increase of approximately 15 percent.

The state administers major federal-state programs, such as vo-

cational education and exercises detailed control of staffing and curri-

culum through its certification and classification procedures. It subsidizes transportation to school for 61 percent of Missouri students. 3

The state's influence over education has been expanding in recent years

through large new efforts in such complex and controversial fields as

mandatory testing and mandatory provision of special education programs.

The statewide testing program, the Basic Essential Skill Test, which now

requires that every eighth grader take a state-prescribed test and retake

it each year until he passes or graduates, is a major attempt to assess 4
and influence the teaching in school districts across the state.

A good deal of the state's detailed control over curriculum and

staffing comes from its process of classifying school districts. Since

1950 all school districts have been rated "AAA," "AA," or "A" by the

state department. To achieve a given rating a district must meet

specific standards of course offerings, teacher ratio, counseling,

libraries and many other program requirements. The State Board's annual

report concluded in 1980 that "because of the classification system, 95 percent of Missouri students now benefit from expanded programs.". 5 The

ratinys have been very important to school officials and local communi-

ties. Deputy State Commissioner Wasson commenting on the accreditation

rating said that "residents of a co7.,;unity value that

very

6 highly."

26

The ratings are widely publicized and constantly referred to in state

publications.

Pressure for compliance has been sufficiently strong that the

number of districts meeting only the standards for an "A" fell from 221

in 1972 to 22 in 1978. The state board will phase out the "A" rating

this year leaving districts that do not comply with the label "unclassified."

573,000 Missouri students attended schools in districts with "AAA"

classifications in 1978-79. 159 high school districts had "AAA" ratings.7

270,000 were in "AA" districts, more than one-fourth of them in the city

of St. Louis. Fewer than 8,000 students were in districts with lower 8
ratings. Approximately one-fourth of the state's expenditures for education

are made in the St. Louis city-county area. 9 Within the city-county area

every district except St. Louis and the small black suburb of Wellston

10 have "AAA" ratings.

St. Louis City is one of the few districts to ex-

__

perience a loss of an "AAL__r_ating at _a time many other systems are im-

proving.

(St. Louis school district, in other words, was labeled by the state classification system as the worst major system in its metropolitan

area. The city suffered, according to the Deputy Commissioner, from too

high a student/teacher ratio, from a lack of counselors, from problems

in its special education program, and from difficulties in teacher

certification. 11)

Reviewing the wide range of state powers which include establish-

ing the legal framework for school district organization, it is not

surprising that the Missouri School District Reorganization Commission LunLluded in its report to the governor:

'WW1.

27

Education is a state function. Thus the state, having the responsibility for education, establishes the form of school district organization and delegate s ,certain operation responsibilities to the districts.'

The Obligation of the State in Deseoreaation Plans. A state which

operated dual schools for most of its history and never fully desegregated -

its schools, is under a strong positive obligation. As the U.S. District

Court observed in the 1973 decision in U.S. v. Missouri the state "must

insure that the education is provided in a manner which does not dis-

criminate against any group of persons on account of their race and

which is consistent with the Equal Protection Clause of the Fourteenth 13
Amendment."

A state, such as Missouri, which has in the past opera-

ted a racially dual system of public education, pursuant

to state constitutional and statutory requirements is,

and has been since 1954, under an additional constitu-

tional obligation to take such affirmative measures as

are necessary to disestablish that dual system and to

eliminate the continuing vestiges

that system.14

The nature of the affirmative obligation of state governments guilty

of de jure segregation were explored by the Supreme Court in the second

Detroit case, Milliken II. The Court held that state officials must 15
help "eliminate from the public schools all vestiges of segregation."

Much more than physical desegregation was needed:

Children who have been . . . educationally and culturally set apart from the larger community will inevitably acquire habits of speech, conduct, and attitudes reflecting their cultural isolation. They are likely to acquire speech habits, for example, which vary from the environment in which they must ultimately function and compete, if they are to enter and be a part of that community. This is not peculiar to race; in this setting, it can affect any children who, as a group, are isolated by force of law from the mainstream. . . .

Pupil assignment alone does not automatically remedy the impact of previous, unlawful educational isolation; the consequencws lin g er and can be dealt with only by independent measures. In short, speech

28
habits acquired in a segregated system do not vanish simply by moving the child to a desegregated school. The root condition shown by this record must be treated directly by special training at the hands of teachers prepared for that task. (Milliken v. Bradley, 433 U.S. at 273.) Even in a state like Michigan, where there had been no segregation law and the state had taken positive as well as negative actions on desegregation, that obligation extended to payment for substantial educational components included in the desegregation plan. The state money was used to match federal desegregation aid funds obtained by the dis-
15 trict for a variety of educational programs.
The new state programs dealt with problems of reading, counseling, teacher training, and a new approach to testing. The Supreme Court relied on the testimony of school officials and other witnesses that educational components were a vital part of the desegregation plan and essential to overcome some of the harms of segregation for children who would remain in segregated schools.
The District Court in the Wilmington case ordered state implementation on an extensive remedial education program of the city's desegregation plan over state objections. The order also covered costs of desegregation itself. The Third Circuit Court of Appeals sustained the decision. (Evans v. Buchanan, 447 F. Supp. 982, aff'd 582 F. 2d 750 (3d Cir. 1978)) The District Court in Indianapolis also ordered the state government to finance supporting components in the desegregation plan. (U.S. v. Board of School Commissioners, 456 F. Supp. 183 (S.D. Ind. 1978))
The State View of State Duties under the Deseareaation Order. During the course of the desegregation litigation in St. Louis the

2S
1
Assistant Attorney General then handling the case asked that the state be considered an observer rather than a party in the litigation.16
The basic attitude remains very much the same today, as revealed in a series of interviews conducted by me and Professor Karen Dawson of Washington University with ranking state school officials during April. The consistent message we received from the state Department of Elementary and Secondary Education and the Attorney General's office is that the state believes it is under no obligation for positive action, it intends to take no substantial steps, it will offer no additional funds, and it will not even openly advocate suburban cooperation unless ordered to do so by the federal courts. The authorities in Jefferson City will cooperate and obey the law if ordered to act, but they will take no initiatives.
Deputy Commissioner Wasson and other officials strongly asserted that there were no discretionary funds the state could use without a change
17 in legislation or a court order. Deputy Commissioner Wasson, Conmissioner Mallory, Assistant Attorney General J. Kent Lowry, and other state officials repeatedly stated that the state government would not initiate any effort and did not feel any special responsibility.18 They only respond to local requests that fall within their statutory authority. None of the state officials believed that the legislature would enact any new legislation, such as the Fiscal Incentives bill, which would create a program with funds to aid desegregation efforts. State legislators interviewed by Professor Dawson agreed with this conclusion.19
The only state funds that will be available for the desegregation plan in the absence of a court order will be $14,000 in state-administered f ederal desegregation assistance grants, to which St. Louis was entitled

30
even in the absence of a court order. Even within the small desegregation assistance program, used for staff training, not one dollar was reallocated following the court decision. 20 (St. Louis is, of course, the first Missouri city to receive a major desegregation court order.)
The Missouri State Board of Education has never adopted a program for the desegregation of public schools and has no state guidelines or regulations requiring desegregation. The state staff has never investigated a school district for segregation problems and has never aided in drafting a desegregation plan, except when ordered to by the court in the Kinloch case.
In February 1979 the Missouri State Board of Education adopted a policy statement affirming the right of all students to "equal access to educational opportunities." Programs receiving state funds were expected to be "appropriately accessible to all students." Instructional materials should not "distort, stereotype, or omit groups of people." The state department was directed to help in in-service training of teachers on race relations. The statement, however, said nothing about encouraging or requiring desegregation of students, helping with court orders, or
21 development of state segregation standards.
Missouri's efforts are very much less than those undertaken in a number of other states, according to data reported by the Education Commission of the States and compiled in 1980 by the Urban and Teacher Education Division of the Missouri Department of Elementary and Secondary Education. There are 29 states with desegregation legislation and 20 with state regulations on desegregation. Twenty-eight states had compliance and enforcement programs. Missouri had no law, no regulations, and no
22 compliance program.

+.4444.1....11‘11.11114111MIN
31

The State and School District Organization. The state legislature

and state educational leadership have profoundly affected the organiza-

tional structure of school districts since the 1820 law which authorized

township level districts. The existing structure of school districts .

reflects a long series of state laws. The county was recognized as an

educational unit in 1853 legislation creating county commissioners of

common schools. In 1866 the state began to organize schools on the city

or village level, and in 1874 a state law encouraged the organization

cf small districts which led to more than 8,000 districts by 1880 and
23
10,500 by 1909.

Consolidation laws, providing authority and incentives for combining

small units into more workable districts were enacted in 1901, 1913, 1921,

1931, and 1948.

Rapid change began with the 1948 School District

Reorganization Act, which created county boards of education and super-

intendents charged with producing reorganization plans. Incentives were

provided. Reorganized districts were expected to contain minimum numbers

cf students, or amounts of tax base, or at least 100 square miles under
24
a 1955 state law.

The state government policies profoundly affected the educational

organization of Missouri districts in the twentieth century. The consoli-

dation movement brought a reduction of more than 90 percent in the number

of Missouri districts between 1948 and 1968. By 1968 there were four

Missouri counties with only one school district and five others with a

single high school district.25

Although the small rural districts had been the focus of much of
the early reform efforts it became clear to many concerned with Missouri
c s ilcotion that the most severe orcani zational problems were in the St. Louis

and Kansas City metropolitan areas by the 1960s. St. Louis had more than twice as many districts as any other county and Kansas City was next in number of districts. The fragmentation reflected and reinforced inequalities in educational resources and racial segregation.
A 1963 National Education Association study of St. Louis County pointed to the enormous difference in fiscal resources among school districts in metropolitan St. Louis. A state department of education report, Public School Finance Study, Final Report, concluded in 1972 that "the state should make a strong positive move to assure that all citizens bear an equitable share of the tax burden." A report prepared at the University of Missouri, St. Louis, concluded that state law hurt St. Louis education because state aid made up a smaller fraction and local property tax revenues a larger component of school budgets than in the rural areas favored by the state distribution formula. By the 1970 school year, the study found, there were twenty school districts in St. Louis County that generated more local revenue per pupil than
26 the city and the city did not receive offsetting state aid.
The most exhaustive examination of the organization of Missouri education in modern history took place during 1968. The legislature in 1967 enacted a law establishing the Missouri School District Reorganization Commission. The Commission consulted with experts across the state, held a series of field hearings in all sections of Missouri, and employed a professional staff to develop background materials. During 1968 it submitted a comprehensive proposal to the governor and in 1969 a supplemental detailed report on metropolitan St. Louis and
27 Kansas City.

33

The ComT i ssion concluded that "school districts are purely

creatures of the state and as such have no inherent powers. They may IT--

be created or destroyed and their powers may be increased or diminished

-----1

28

at the will of the state."

The report highlighted the problem of

the laroe cities, holding that "if the problems of the city are per-

mitted to fester unabated, the prosperity and well-being of the entire 29
region are endangered."

Evidence abounds to support a case for educational reform in the Greater St. Louis Metropolitan area. This disparity between the best and the worst on every measure of quality is readily apparent. Moreover, there is every indication that such disparities will continue inexorably to grow. The movement of industry and the flight of the more prosperous taxpayers to select suburbs continues, leaving the city and some of the inner-ring suburbs with a declining tax base to provide education for an increasing percentage of pupils from officially designated poverty areas. The absurdity of this implicit policy of providing the most education for those who need it the least, and conversely, the least education for those who need it the most, is clear when tthe total environment of the pupil is considered.J°

The report recommended combining all the school systems in the

city, the county, St. Charles and Jefferson counties into a single large,'

district to be subdivided into a number of smaller operating units.

There was a similar proposal for Kansas City. Chairman Spainhower

later testified that the most he,:ted resistance to the proposal came

from the Kansas City suburbs and from St. Louis in general and much of 31
it was related to racial concerns.

Nev.spaper accounts reached similar conclusions. By the 1960s,

St. Louis was a se p arate and unequal school district--predominantly black--

and or g anizational change was resisted on both economic and racial grounds. Thc organ;:ation,-,1 structure established under state law, however, reriallie,1 a fund,Amcntal problem. both for the pursuit of desegre.s;ation and

34
ti
for the pursuit of quality education. As the city has become more segregated and as its educational rating has dropped in recent years, there have been no more state proposals f or organizational change.
Voluntary Suburban Exchange and the State. The District Court order and the Court of Appeals order in this case authorize the school district to pursue the possibility of voluntary exchanges of students with the suburbs as one potion of the desegregation plan. This proposal is intended to partially offset some of the problems created by the school district lines. The district has attempted to initiate planning and an exchange but has found it impossible to win cooperation. Obviously, working out a very sensitive relationship between several districts is difficult to accomplish within any single system.
Although the state department did testify in favor of the Fiscal Incentives bill, which would have provided funds for voluntary exchanges, it has made no public response to the court decisions. Commissioner Mallory reports that he has informally mentioned to some St. Louis County superintendents that it would be well to take some form of voluntary action before a mandatory metropolitan case is initiated, his department has not made any effort to establish such an exchange or to initiate communication on this issue between the city and the suburbs. The state officials believe that they have no such responsibility under the court order. The Commissioner would respond to a more explicit court order but would not expect
qrl! 'cucte.c:

35
If I were ordered by the judge to go in there and attempt to work out cooperative efforts, of course I 32 would, but I think it would fall on fairly deaf ears.
The State and Vocational Education Programs. The St. Louis _ School Board, in its plan, has urged the state department of education to require a merger of the city and county vocational education programs. This request and its strong endorsement by the courtappointed Citizens Committee, led me to give special attention to several questions about the state's role in vocational education. My conclusions, based primarily upon discussions with the responsible state officials, are as follows:
1) The state does have the power to establish a new citycounty area vocational p rogram as it recognized and funded separate programs in the past.
2) The city and county vocational programs have been under investigation on civil rights grounds by the HEW Office for Civil Rights and the State Commissioner has agreed that the state department will fund no new programs in the city or the county until an effort is made for cooperation.
3) The St. Louis school board has been willing to cooperate but the Special District of St. Louis County has refused.
4) State educational leaders believe that there is a serious shortage of vocational training throughout the metropolitan area.
5) State officials do not support the idea of merger.

36
6) If merger is ordered for desegregation purposes, the
state vocational education director believes the order must include time for planning and a very strong emphasis upon improvement of educational services. The Area Vocational Schools were created when the State Board
of Education recognized particular districts or combinations of dis-
tricts as Area Vocational programs under the terms of the 1963
Vocational Education Act. B.W. Robinson, director of the state
vocational education office, recalls the origin of the St. Louis County situation. The county-wide Special District was originally established for provision of special education services for county children. Vocational services were provided on an inadequate basis by a cooperative of six county districts operating an old county school. Civic and educational leaders in the county, recognizing the need for a better program, successfully asked the state legislature to amend the law to permit the Special District to administer vocational education as well. The district promptly applied for recognition and recognition was granted in 196E. Seventeen months later the State Board recognized the area vocational program in
33 St. Louis city.
The county Special District operates two high schools and is building a third. The city has one school. There are few specialized courses available in any of the schools, since each now carries almost all of the standard vocational programs.
The State Commissioner of Education and the Career Education Director, Mr. Robinson, share the view that both the city and county

37

are providing far less vocational education than is needed by the

children of the region. Commissioner Mallory said, for example,

that the students "need another vocational high school in the

city." Mr. Robinson reported that the county schools were full

and that the whole area had less than half the vocational program

spaces that were needed.

The metropolitan area had a substantially

lower fraction of its students in the career-oriented programs than

the state average. Both Robinson and Mallory said that they would

encourage new specialty programs if proposals were submitted and a

need shown by an analysis of the St. Louis economy. If there were

to be a court-ordered merger of the systems, Robinson concluded that

an in-depth survey of the operations of the existing programs and

the vocational education needs of the metropolitan area was an 35
essential prerequisite for a sensible plan.

Commissioner Mallory said that he does have the authority to

merge the vocational programs and that he has, on occasion, threatened

to use it because of failure to comply with HEW Office for Civil

Rights requests for cooperative planning between the districts.

Recognition as an Area Vocational school brings a special level

of state funding, not only for staff but also for buildings and

equipment, at sites approved by the state. Mallory said the State

Board could simply withdraw recognition of the two existing districts

and recognize the junior college system (which does have city-county

jurisdiction and taxing authority already) as the administrative 36
Agent for the proarams.

38

The vocational programs have been investigated for civil

rights violations by the HEW Office for Civil Rights. Following

the investigations HEW demanded a cooperative effort to deal with .

the problems of segregation among the programs. In response to the

HEW action, Commissioner Mallory wrote to the superintendents of

the city and of the county's special district formally notifying

each that he could approve no new programs urtil they had formally met and attempted to formulate cooperative programs. 37 The Commissioner

has been unable since his February 20, 1979 letter to both superinten-

dents to achieve so much as a joint meeting of the two governing

boards. When an application came in for a new program, the state

department had to return it to the district for failure to comply

38

with the HEW agreement.

Thus, vocational education in metropolitan

St. Louis can initiate no new programs at this point in time.

State Transportation Funds. The State Board of Education

administers programs which finance most transportation of students

for Missouri public schools. Missouri is a state with a high pro-

portion of transported students, 61 percent of total enrollment.

The state funding for transportation works in a way that is parti-

cularly damaging to big cities and which was drawn up without any

consideration of the special costs of big city desegregation plans.

The state transportation program is based upon 80 percent

reimbursement of local costs but with a ceiling of 125 percent of

the average state cost of busing. The average cost of regular busing in the state is less than one-third of the per pupil , cost exporlrnted In St. 1ow,. roc; transportation, of course, is rural

40

the top of the total education budget before state aid to the dis-

tricts is allocated. Thus the practical impact of changing the

transportation reimbursement formula by removing the 125 percent

cap is to reduce slightly the state's per pupil payment to each

district. Each million dollars reallocated for this purpose would

reduce each projected dollar of education aid by about one-tenth

of a cent. Given the fact that the state elementary and secondary

education budget will rise more than $120

next year, there

would be no cut in per pupil payments resulting from a change in the

formula but rather a slight decline in the large increase which has

been projected.

State Officials and the Law. Although none of the state ad-

ministrators expressed support for a court order expanding the state's

responsibilities, all emphasized their determination to obey the law.

If the federal courts order any form of state participation the

state officials will obey the law and do their best to carry out

their responsibilities in the way that will create the strongest

p ossible educational outcomes.

Recommendations for Directives to the State De p artment of Education
1. That the state department be ordered to fund 80 percent of the pupil transportation costs incurred by the St. Louis schools in implementing their desegregation plan and that the sate de p artment be required to review and comment upon the district's transportation planning, contracting arrangements, and routing procedures.
2. That the state department be ordered to develop a plan / for merger and desegregation of the vocational and career education

4,

programs of the St. Louis Public Schools and the Special District

of St. Louis County for implementation in Se p tember 1981. Be-

ginning the fall of 1980 free transfer will be permitted without

tuition among the vocational students of the city and county.

Transportation will be provided by the Special District and costs

and tuition reimbursed by the state. The state will commission

a full-scale review and survey of vocational instruction in the

metropolitan area as part of the planning process. The survey shall

include representatives from the American Vocational Association,

the state department of education, the two school districts, and

districts elsewhere in the U.S. that operate desegregated metropoli-

tan vocational education programs, and other experts to be designated

by the state commissioner. The survey shall be completed by

December 1, 1980 and the plan submitted to the court by March 1,

1981. The plan may include the creation of new metropolitan voca-

tional magnet programs but it may not rely on voluntary transfers

as its principal desegregation technique. The plan will include

an extension to the City of St. Louis of the fraction of the pre-

sent Special District levy that now supports vocational education

(thus increasing resources for these programs) and the creation of

an appropriate structure of governance for the new Area Vocational

J

District.

3. That the state department of education be ordered to

develop and or g anize a prozedure for voluntary exchange of students

and the creation of metropolitan-wide magnet schools in metropolitan

St. loui: and that it seek federal fundin g for such programs in

z •
cooperation with participating districts. State transportation reimbursement should cover the total cost of transportation in this program and the state should count transfer students in both the sending and receiving districts for purposes of distributing state aid funds. (This should be considered part of the Milliken II remedy outlined below.)
4. That the state government be ordered to assist the district's program of educational changes that havL been developed as an integral portion of the desegregation plan, following the model created by the Supreme Court in Milliken II. This support should include the following:
A. Support for the transition costs of the new grade structure and magnet schools not funded under the Elementary and Secondary Education Act ESSA program.
B. A one-time capital grant to cover the cost of physical conversion of buildings to new purposes.

 
 Kansas City Missouri School District , Organizational Chart

JUANA HIS/LAW
Director Of Public Information
I 65 3 3344

DR. WALTER MARKS Superintendent Of School.
Tolal Poaa,V
(goop000

PENDERY CLARK Special Assistant To The Superintendent
•

STEVEN FINCH Chief Information Officer
7414

STEPHANIE ROBINSON Director Of Govenunental Af

LARRY RAMSEY Director Of Planning And Evaluation
65,123 . at

WILLIAM DITTMEIER Chief Legal Counsel
Trt. q

JI.A4912. Quite LAJ klie-S t 637324:$o
acw4/2t CAWS C50( (045. 60

fe.41.4-e

9itokf6•4o

;E• tiFizweq AmikkAg) 75121. " 4 (Ctry

HARRY STEPHENS Deputy Superintendent For
Educational Services
its,qc 11 2.

ART RAINWATER Associate Superintendent of
Instruction
76,(17?.?2.

RUTH ALDERSON Associate
Superintendent Of Desegregation
76/111,12.

JOSEPH JONES III Associate
Supenntendent of Human
Resources
74 in i2

ROBERT BROGI Deputy Supenntendent For
Administration

JAMES COLEMAN
. VVIOriate Superintendent of Fin.tne .. and rinsing,
7421 9 q1 . 9

141LLLAM THREATS JR. Associate Superintendent Of
j Ffleiii/ eft snd Tran,p n rtntlnn
7b/ 911Y• ?2

ARTHUR SYKES Associate Supenntendent Of Maintenance And Onerat■ons
76r 1`11'12

 
 Presentation to School Board by CLINTON ADAMS, JR. July 13, 1992
This Superintendent has been non-responsive to our simple requests for equity, for parity, and for justice. By placing limits and restrictions on the African Studies theme for D. A. Holmes he has, in effect, diminished the value and the essence of African and African-American culture as a suitable curricular focus in relation to all other magnet themes.
The ball is now in your court. You're our elected representatives and we're appealing to you to hear our cause and respond to our reasonable requests for revisions to the administration's Long-Range Magnet Plan.
While this Superintendent's condescending, insulting and offensive compromise is conclusive evidence that he lacks the cultural sensitivity and respect for AfricanAmericans necessary to lead a school district with demographics such as ours, and confirms the poor judgement you exercised in both hiring him and extending his contract,
We are hopeful that as the individuals ultimately responsible to the Court and to the community, you will take steps to make the modifications we request. They are as follows:
1. Remove the caveat which links the district's commitment to go forward with African Studies at Holmes to "success at Chick in raising tests scores and desegregating". No such restriction is being placed on his misnomed and misleading Gifted and Talented Programs, the vacuous Futures programs or any other newly proposed magnet themes. To place it on African Studies is an expression and indication that the district lacks commitment to or belief in the educational and desegregative value of a program that emphasizes our culture, our history and our contributions.
2. Proceed with implementation at D. A. Holmes in the 199495 school year of the mentor model with an African and African-American Studies focus. We are not asking for another International Studies School with an African Studies emphasis. We're merely asking for one International Studies School with an African Studies emphasis at Chick, (which is in the plan), a mentor school at D. A. Holmes with an African Studies theme,

and a G. T. School at Ladd with an African studies curriculum emphasis.
3. To ensure K-12 thematic continuity the heretofore unsuccessful programs at Southeast Middle School and Southeast High School should be modified to encompass African and African-American Studies.
4. Call upon members of the Community (African-Americans and whites) and nationally recognized scholars and educators to present this schema to the DMC and the Court. This unenlightened Superintendent and his all white team lack the credibility and cogency to persuade anyone to adopt these themes. Their public statements denigrating the essence of our culture and questioning the educational effectiveness and desegregative attractiveness of African Studies programs renders their testimony worthless and ripe for easy impeachment. They have invited rejection by either the DMC, the Court or both.
These four (4) minor requests are reasonable and necessary revisions that would make this plan more palatable to the enlightened, informed, and involved sectors of the community. A sensitive affirmation by you would put this episode behind us.
Thank you.

 
 1J
DEPARTMENT OF HEALTH. EDUCATION. AND WELFARE
February 22, 1978
Yr. Samuel Carpenter President Loard of Education School Board Ramses City, Missouri 64106
Dear Mr. Carpenter:
The Office for Civil Rights agrees that the school district will attain com-oliance with Title VI if its "Interim Plan C" is modified to include the following provisions:
1. Effective Sept,=mbe-, 1973, non-mlnority students enrolled at Lincoln Eigh School wdll be no less than 15: nor more than 30: of the student body. The district may assign students to Lincoln using the `'magnet" school device or such other plan or combination of pi p ^s selected by the Board provide:: only that the-target percentage of non-minority students Jo. achieved.
2. BegLani-^ with the 1976-79 school year all site selections for new educational programs offered at the elementary level will be made to promote desegregation of the overwhelr 4 n3ly or entirely black schools.
3. Effective the 1978-79 school year the policy or practice of permitting senior high school students a transfer option solely because of their senior status shall be discontinued.
4. The policies and practices controlling faculty assignments, recorded fm the school district's 1973 . ESA waiver assurance, shall be fully operative; the district slw111 establish administrative procedures to obtain compliance with such policies at each school of the district.
5. Effective 1978-79, the district will implement and maintain procedures which assure that each health and child care transfer is not used as a device for inhibiting desegregation.

OFFICE , SURNAME

DATE T C . T--iZE J

' C' Ll@ ' t U 1 : 1 .7/

I

I

I

I

SURNAME

DATE OFFICE SURNAME

•I

___,

I

' DA-E I I 1

DEPARTMENT OF HEALTH, EDUCATION. AND WELFARE
A
6. The District 174 11 continue non-disc_4 -inatory optional zones and assure that all students assigned 'within the optional .- tomes re- 4 n in that school assimant unless ap p lication for transfer is =Lade through the District's antra district transfer procedure. We -.rill ea7pect your immedizte response szreeing to or reiecting the listaZ =Ddifications.
-Sincerely,
is/
David S. Tate? Director Office for Civil Rights

SURNAME

I DATE OFFICE I SURNAME

DATE OFFICcI SURN

LATE

 
 The Coalition For Education And Economic Justice
P.O. Box 6082 Kansas City, Missouri 64110 ---------
FOR IMMEDIATE RELEASE === ================
PRESS RELEASE
August 21, 1992
UNDER DR. WALTER MARKS THE KANSAS CITY, MISSOURI SCHOOL DISTRICT'S SALARY POLICIES AND PRACTICES ARE UNFAIR, INEQUITABLE, AND DISCRIMINATORY TOWARD AFRICAN-AMERICANS

Dr. Walter Marks has brought a plantation mentality to the Kansas City, Missouri School District. He pays his white employees more than he pays their African-American counter-
parts. For example the Director of Finance, Craig Cook, the white male retired military man, is paid $77,299.92, which is more than Jim Coleman, The Associate Superintendent of Business and Finance, who is supposed to be his boss. On his staff, he pays Steve Finch, the white male Director of Data Processing $72,192.00, as opposed to $65,333.04 each to Juana Hishaw, the African-American Director of Public Information officer and Dr. Stephanie Robinson, the "Negro" Director of Governmental Affairs. The inequities are even more blatant in the Instruction Division, commonly referred to as Art Rainwater's plantation:

Name

Ethnic Directorship Years Salary

Group

with

KCMOSD

Brenda Thompson- W/F Instructional 1

Kistner

Programs

$71,883.12

Thomas Evans

W/M Middle Schools 1 Schools Supervised = 12

$71,883.12

Tonnes Staave

W/M High Schools Less $71,882.88

Schools Super- than

vised = 10

1

* Dr. Ida Love

B/F Elementary Schools Supervised = 17

27 $70,100.00

aAhmakit.

A44 Ai

A1,1 w 11 i!

Jr I I,

Janice Cade
* Dr. Felicia Blacher
Michael Charles Ike Gardner

B/F Elementary

23

Schools

Super-

vised = 18

B/F Elementary

1

Schools

Super-

vised = 18

B/M Instructional 23 Training

B/M Pupil Services 33

$69,800.00
$65,332.80 $60,267.12 $60,266.88

* It should be noted that the salaries shown include the annual $600.00 stipends paid to Ms. Blacher and Ms. Love for their doctorates. Even with those stipends they earn less than their white colleagues who have less educational qualifications.

A Superintendent who places a higher premium on whites than he does African-Americans should not be allowed to lead a
school district with a student population that is 70% Black. Any Superintendent who believes that the bigoted private and suburban school reject, Art Rainwater, should have any role in the education of African-American youth is not qualified to direct our education system! CHANGES MUST BE MADE!

Ed Newsome
444-2600

Bill Grace 523-3339

Ajamu Webster 756-5010

Mike Jackson 231-6062

Clinton Adams, Jr. 356-2287

********************

 
 GUILTY OF CRIMES AGAINST OUR CHILDREN!

ART RAINWATER
GUILTY! GUILTY! GUILTY! GUILTY!
1. While principal of Central High School, he had a 42% student failure rate. Despite this deplorable record, Dr. Walter Marks placed him in charge of the entire Instruction Division.
2. He has stated that he is willing to sacrifice an entire generation of AfricanAmerican children to insure the success (attract whites) of the magnet schools.
3. He eliminated the jobs of people who served children with special needs and then used the money to create a research job for one of his "special employees", Pauline Moley (W/F). He allowed another one of his "special employees" (Brenda Thompson-Kistner (W/F) to interfere with the educational equity process and demanded that educators be loyal to him, rather than teach our children about their culture and history.
5. He has attempted to derail the community based movement for African Studies Magnet Schools by publicly stating that those programs are not attractive.
6. He conspired with the white business community to take a 1 million dollar computer contract from an African-American company.
7. He assigned resource teachers in the areas of Art, Music, and P.E., but eliminated the resource positions in Reading, Math, and Science. He does not want our children to become academically competitive.
8. He supported a hefty pay raise for Tom Evans (THE UNENLIGHTENED) white male who fired Dr. Don Wharry but refused to support comparable raises for Dr. Felicia Blacher (B/F) and Dr. Ida Love (B/F), both of whom earn less than their white counterparts despite having better credentials.
9. He demoted African-American Administrators and then appointed two white female vice-principals at Central High School despite that schools history of conflict between Black male students and white female teachers and administrators.
10. He has a history of disrespecting, demeaning and cursing Black female educators.

"It is far better to be free to govern, or mis-govern, yourself

than to be governed by anybody else."

KWAME NICRUMAII

We can no longer accept the MIS-EDUCATION OF OUR YOUTH CHANGES MUST BE MADE!

COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 Kansas City, Missouri 64110
FOR IMMEDIATE RELEASE

SIEGE MENTALITY BESETS SCHOOL DISTRICT LEADERSHIP
Superintendent and Staff Looking For Ways To Restrict Community Access to Facilities
THEY DON'T WANT PARENTS TO ATTEND TASK FORCE MEETINGS
In a strange response to the Community's quest for educational equity for our children and fairness for African-American educators, Dr. Walter Marks and his staff are conducting a witch-hunt. Some employees (mostly Blacks) are being coerced, intimidated, threatened with termination for communicating with parents and community members. At Dr. Marks' direction, his conniving special assistant, Pendery Clark and PREJUDICED ART RAINWATER are even developing a plan to restrict access to facilities and parental involvement in meetings to develop programs for our children.
These people have their priorities skewed! Rather than designing programs conducive to the positive educational, psychological and social development of our children, they seek to punish African-American educators. Rather than working with parents and community based organizations to stem the tide of soaring retention, suspension, expulsion, and drop-out rates, they seek to protect Rainwater and insulate the district from scrutiny and criticism. In another display of the cultural arrogance of the people who control the education of our children they are trying to limit parental involvement to privileged whites and sycophantic Blacks.
A superintendent who surrounds himself with insensitive and incompetent individuals (Clark and Rainwater), who brow-beats, threatens, and demotes his African-American staff, who seeks to shut out the community, and who tries to deny Black parents a meaningful role in the educational process should not be allowed to lead a school district such as ours. CHANGES MUST BE MADE!
En the words of Civil Rights leader, Fannie Lou Hamer, "We're sick and tired of being sick and tired."

JOIN THE COALITION FOR EDUCATIONAL. AND ECONOMIC JUSTICE IN PURSUIT OF EQUITY, JUSTICE, AND RESPECT FOR OUR YOUTH AND OUR COMMUNITY.

Ed Newsome 444-2600

Bill Grace 523-3339

CONTACT:

Mike Jackson

Clifford Herring

231-6062

523-2127

Clinton Adams, Jr. 356-2287

 
 EXTRA! EXTRA! EXTRA! EXTRA!
1. PENDERY CLARK'S husband, who still lives in California, is given "do-nothing" consulting contract to pay for his travel here to visit his wife. The value and quality of his "work" are dubious at best.
2. MARKS MAKES MOCKERY of our community's pleas for substantive, credible, and quality African-American male leadership and involvement in the education of our children by hiring an over-the-hill man who's only apparent qualification is the color of his skin. Harry Stephens appears to be even less qualified then the vacuous and recently demoted Stephanie Robinson (who was also a joke). THERE ARE AFRICAN-AMERICAN EDUCATORS QUALIFIED TO BE SUPERINTENDENT AND DEPUTY SUPERINTENDENT.
3. MARKS EMASCULATES AND HUMILIATES Harry Stephens by telling him to stay out of Instruction and to give Johnson County reject, Art Rainwater, total control of the education of OUR children. Stephens is not even allowed to talk at School Board and DMC meetings. He's told to defer to Pendery Clark (W/F) and Rainwater (W/M).
4. The Black Community has no significant role, voice, or authority over the education of our children. ALL African-Americans are under the direct Supervision of WHITE MEN who make all final decisions affecting the substance of what our children are taught, how they are taught, and who teaches. Black educators are cut out of the final decision making process.
5. Openly prejudiced Brenda Thompson-Kistner continues to interfere with the Educational Equity process and discriminates against Black employees. She has double standards and gives preferential treatment to whites on her staff. She's lazy, rarely goes to her office, and does nothing to earn her $71,882.00 annual salary. It obviously pays well to be one of Art Rainwater's "Special" female employees.
WE MUST DO SOMETHING!
Remember the words of Malcolm, "The most powerful tool in the hands of the oppressor is the minds of the oppressed."
Malcolm X
PLAN TO ATTEND THE COMMUNITY EDUCATION FORUM
OCTOBER 17, 1992
11:00 A.M.
CENTRAL HIGH SCHOOL
LINWOOD & INDIANA

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 Kansas City, Missouri 64110

FOR IMMEDIATE RELEASE

August 25, 1992

FLASH! FLASH! FLASH! FLASH!
SUPERINTENDENT APPARENTLY LIED ABOUT BUDGET CRUNCH
Craig Cook Is Given A Big Pay Raise.

WALTER MARKS AND HIS TEAM OF WHITE SUPREMACISTS AND OBSEQUIOUS BLACKS HAVE THEIR PRIORITIES SKEWED
On Monday, August 24, 1992, The Board of Education acting on the recommendation of the Superintendent gave a hefty salary increase of approximately $8,000 to Craig Cook, the unenlightened white male retired military man who commutes to Kansas City every day from his home in Lansing, Kansas. This Superintendent has his priorities skewed! How can he reconcile the elimination of special education classroom aides (mostly African-Americans) who worked directly with children who have been diagnosed as having behavior disorders (mostly African-Americans) with finding money to grant large pay raises to already over paid white folks (Cook now earns $75,000)? In these austere times, if the Superintendent were genuinely committed to the educational and psychological development of our youth every available dollar would be used to serve the need of our children, not fatten the pockets of insensitive white MERCENARIES. This is what happens when you have a Superintendent who is not committed to the well-being of African-American children. Any man who gives preferential treatment to whites while ignoring the needs of Black children should not be allowed to lead a school district with a student population that is 70% Black!

JOIN THE COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE IN THE QUEST FOR EQUITY, DIGNITY, AND JUSTICE FOR OUR YOUTH!!!

Ed Newson 444-2600

Bill Grace 523-3339

Alice Ellison 921-2121

Mike Jackson 231-6062

Clinton Adams, Jr. 356-2287

 
 The Coalition For Education And Economic Justice
P.O. Box 6082 Kansas City, Missouri 64110
RESOLUTION IN OPPOSITION TO EXPANSION
OF THE LONG RANGE MAGNET PLAN 4- PRESS RELEASE
Whereas, The KCMSD has developed a plan that calls for converting ALL of the schools to magnet schools;
and Whereas, The current magnet school system gives preferential treatment to white students and places an unfair and undue burden on African Americans;
and Whereas, as a result of the magnet school system, the school is no longer an integral part of the neighborhood;
and
Whereas, under the magnet school system, African American students are retained,
suspended, expelled, and drop-out at extraordinarily and disproportionately high rates;
and Whereas, under the magnet school system, academic achievement of African American students is stagnant and in many areas has regressed;
and Whereas, as a result of these factors, the magnet school system has been detrimental to the educational and psychological development of African American youth and is adverse to the viability of the African American community;
and Whereas. The Coalition For Education and Economic Justice is a community based organization dedicated to educational reform, economic equity, and social justice;
and
Whereas, CEEJ has provided effective leadership in monitoring the KCMSD and keeping the community informed on issues related to the quest for educational equity and socio-economic parity;
and Whereas, CEEJ supports various desegregation components such as reduced class size, full day kindergarten, staff develooment, early childhood education, capital improvements, AAA status, extended day, improved salary schedLles, effective
schools, and summer school because they are essential to remove the vestiges
of the illegally segregated school system;
THEREFORE BE IT RESOLVED that the undersigned community based organizations hereby express our opposition to expanding the magnet school system to include all of the schools of the KSMSD
and Be it further resolved that we support the alternative concept developed by CEEJ
and Be it further resolved that we support CEEJ, their efforts for educational reform with dignity, and appreciate the leadership they have provided in the community.

 
 This chart clearly establishes that Dr. Walter Marks is unfair and discriminatory toward his African-American Director level employees. (See bottom of the Chart)
Kansas City, Masouri School District Organizational Chart
Supeintendeet Dr. Walter L. Mafia

Director Public Information
Juana }mw'
Deputy Supalatermient for Admisistratien Robert P. Mogi

Evaluator Larry Ramsey

Special Ambient to Superintendent
Perkier/ Clark

or a Systems Steve Finch

Legal

Governmental

Services

Affairs

William Moonier Stephanie Robinson

Deputy Superintendent for ltd. Services (OPee)

Diractsr Pendia, k Developing,' BetiVil Bailor

Most. &opt. Bus. & Finance Jana Colman

Assoc. Sept Facilitiestfrans. wmlant 'Thew

Assoc. Supt, Maki. & Oper.
Arthur Sylon

Assoc. Supt. Instruction Art Rainwater

Assoc. Supt. Desegregation Ruth Alderson

Assoc. Supt. Humes Resources
Joseph Jones III

Dimas, Agosegthi Cods Cask
pl:res
_1 WomMedeg

&ipteintmileM

a...4.C_ (3 IAA C Lar
1,14CCILLACTU,,44.—

Director
Smelt,
Do 4,, i Livia...se
Altorsative Robot Jack=

Willie MW

Di\rr4ectAoAr. leek Mach 1 awe

Director Middle &kW.
Ur Bows

Imo& 'Kiting'

ilecrelaillerketing Us& Steanieesd

Admission
losaid Simpson

Oleg?
lienine it skidoos
Wills Dos*

71777= 7(4,1,(.4 e

5Y 1 `16 7, 12

Director len eatery IC Nick Blacker

Director Elm Inter!
holcoCigie

itioneontery Wei..ove

A 1/4, tir

All

of

the

(00,2(97-12.
whites, none

--1(1M (1 of whom

i t d6 have

been

-1( W.12_

-71,8,0.12

Kansas City,

6 5,332..80
Miissssoourri

6311P6
School

too
Disilttsoromimcetcideitl too Sreeda/AnMy

substantial period of time and don't have any doctorates are at the top of the salary schedule

and earn more than their Black colleagues . Only one (1) African-American is at the top. Why

whites with less time in our district and less education earn more than African-Americans?

 
 COALITION FOR EDUCACTIONAL AND ECONOMIC JUSTICE AGENDA

Welcome to the Coalitions first annual retreat

I. Statement of Purpose

II. School oncerns

a. Leadership/P, b. Academic Achievement-N.,5,...4,1 c. Suspensions/Dropouts d. Supplies e. Themes/Curriculum f. Traditional/Magmet g. Task force contro13'ti-_sA,,t-A--1\Aakir
INckstr.. III. Administration

is1/4bet.-A--

a. uuties & responsibilities (see organizational chart) Hiring, transfers, demotions and terminations
c. Supt. Marks resignation, Rainwater d. Key Positions held by Blacks

cf----12%1

-C1-ers

tactr,,5,4 0-9P1414

IV. Intervention

a. b.

LegaLrepresentation State interventioh>

Jo-11.,,.,z15

c. Petition drive

d. Legal funds

V. Community Organizing

AS ,../eSS

a. Community awareness of issues i.e. suspensions/ dropouts/African Themes b. Mass mobilization/Grass root organizing c. Student organizations d. School/Parent representation on Coalition

VI. Coalition Ogranizational Structure

a. Comittees and responsibilities-1
b. N1/4,2„;:t___ 34vn
c. d.

VII. Old Business/Old Business

 
 COALITION FOR EDUCATION AND ECONOMIC JUSTICE Minutes from September 15, 1992
Agenda Items:
1. Alternative to Magnet School 2. Art Rainwater 3. Weekend Activity-Bartle Hail 4. Community Forum 5. Community Outreach 6. Dr. Wharry report
Opening remarks by Clinton Adams concerning the security of information in our meetings. Information discussed in our meetings should remain confidential.
Alternative to Magnet School: Ajamu Webster and other members set aside time to prepare a summary of what we need and want. Purpose was to give bullet points and to break down the information so we may educate the public and use the documentation we have as background information. Points being curriculum reform, support services, extended day programs, school goverance, bottom up planning.
Art Rainwater: Press conference scheduled for Thursday, September 17, 1992. Bill Grace will be responsible for preparing the statements or affadavits to be submitted to the DMC concerning remarks made by Art Rainwater. Discussion held on putting more pressure on Rainwater, strategy to keep information out on Rainwater, continue to circulate fliers. Organize strategy for Board Meeting for Sept. 28, 1992 was also discussed.
Weekend Activity-Bartle Hall: September 19, 1992 community forum, workshop to be held by Earnestine Kennedy. All interested persons were asked to attend. Membership drive will be on sight. Bill Grace will be responsible for printing of cards, contributions will be $1, $5, $25 or more.
Community Forum: October 17, 1992 at Central High School. Theme "The Alternative Plan". Discussion will be focused on community based schools, to reclaim our schools, educate community, panel discussion. We will have an opportunity to update the community and to continue our petition drive. Radio stations will be contacted.
Community Outreach: Clifford Herring has set September 26, 1992 as a "rally" day. Leon Jordan Park, 31st Benton, 12 noon till 4:30. KPRT, speakers will be present. We need all persons to participate in handing out fliers.

page 2
drive will still be active.
Dr. Wharry Report: Report on Behavior Disorder (BD). Statistics were given by Dr. Wharry. The Coalition's response was that the information given was not what they wanted. An assessment is what was needed of why, what and how the negative results end up happening to our children. These issues will be addressed. The definition of BD, and how the assessment comes about to determine if that is indeed what the child needs. Dr. Wharry will have more to report at the next meeting.
A SAC meeting will be held September 28, 1992, 7:00 at Central High School. (Bill Grace please attend).
A private meeting is scheduled at 10:00 at BEU for Mhangu Lisa (?).

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 Kansas City, Missouri 64110

FOR IMMEDIATE RELEASE

September 4, 1992

DR. WALTER MARKS CALLS "JIM CROW" PRACTICES PROGRESS — COALITION DISAGREES

KCMSD Superintendent, Dr. Walter Marks, has a strange concept of progress. A 'Jim Crow' system in which newly hired less qualified whites consistently earn more than better qualified and more experienced African-Americans may be progressive to him but not to us. Note the following:

Name

Ethnic Group

Directorship

Yrs. in KCMSD

Salary

Linda Smaagaard, BA W/F Ronald Simpson, Ph.D B/M

Director of Recruiting and Marketing
Director of Admissions

11/2

$71,883

5

$70,100

(including $600 stipend

for having a doctorate)

We don't understand how anyone could call a system in which a white woman with a B.A. degree and less tenure in the district, is paid more than a Black male distinguished former Principal with a Ph.D, progressive.

Additional evidence of Dr. Marks' and Art Rainwater's preferential treatment of Whites follows:

Name

Ethnic Group

Directorship

Yrs. in KCMSD

Salary

Pauline Moley
Michael Charles
Ike Gardner Millus Bass

W/F

Research Instructional

5

Specialist

B/M

Director of Instructional

23

Training

B/M

Director, Pupil Services

33

B/M

Director, Human Relations

5

$60,550
$60,267
$60,267 $59,967

Its unfair, unjust, and unconscionable for Dr. Marks and Mr. Rainwater to pay Ms. Moley more than African-American males who hold Director level positions that are supposed to be senior to her specially created research position.
A superintendent who places a greater premium on whites and who gives white women preferential treatment should not be allowed to lead a school district with a 70% AfricanAmerican student population. [The unsavory and odious circumstances surrounding the special creation of Ms. Moley's "special" job at the expense and to the detriment of our children's special needs will be thoroughly exposed in an upcoming news release.]

RAINWATER'S GOFER GIVEN BIG PAY RAISE
MARKS LIES TO COURT, TEACHERS, AND PRINCIPALS ABOUT PAY RAISES
After making representations to the contrary, opposing the teachers request for a modest raise, and denying salary increases to principals, KCMSD Superintendent Walter Marks and Art Rainwater, the incompetent Johnson County reject who heads the KCMSD's Instruction Division, recently gave a substantial pay raise to Rainwater's administrative assistant. Effective August 1, 1992, they gave the obsequious Joe Williams a raise from 34,400 to over 45,000. THE SERVILE Mr. Williams now earns more than most teachers and some principals. It's foolish, inequitable, and wasteful to pay Art Rainwater's manservant and gofer more than professional educators. Dr. Walter Marks and his team have their priorities skewed!
CHANGES MUST BE MADE!

JOIN THE COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE IN PURSUIT OF EQUITY, JUSTICE, AND RESPECT FOR OUR YOUTH AND OUR COMMUNITY.

Ed Newsome 444-2600

Bill Grace 523-3339

CONTACT:

Mike Jackson 231-6062

Clifford Herring 523-2127

Clinton Adams, Jr. 356-2287

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
***PRESS RELEASE***
The system of apartheid is alive and well in the leadership of the Kansas City, Missouri school district. The student population is over 75% minority. Yet, ALL the key administrators are white. EXAMPLE:
Superintendent---White (Dr. Walter Marks) Asst. Superintendent---White (Art Rainwater) Director of High School Education--- White; reports to
white, who reports to white. Director of Middle School Education---White, reports to
white all the way up the line. Director of Magnet Schools Instructional Programs---white
female from Jackson, Mississippi. In total charge of what our kids are learning. Director of Instructional Training---White female; coordinates and oversees all stafF training and development. Eight curriculum coordinators---6 are white.
There is no significant input from the Black community on what our kids are learning, or whose teaching them, and of whose is teaching them to teach them. There is no equity! There is no inclusion here! Top-level decisions are being made about what's best for Black kids and for Black community from an all-white jury of administrators.
Out of the 10 high school principals, 6 are white. One of these schools (Southeast) has a 96% minority student body. What kind of message is this sending to our kids just before they step into a world that is already filled with hatred and racism?
However, many of our kids don't make it that far. In 1990-91, 61% of the total drop-out population was composed of Blacks. Last year, 58 out of 65 students (89%) who received long-term suspension (11 to 90 days) and expulsion where Black. Last year, 1500 kids received short-term suspensions, 90-95 percent Black. Yet, under the current leadership of the school board and administration, 140 positions which were occupied by Blacks were cut from the 1992-93 budget.
Yesterday, we personally observed teachers displaying insensitive, unacceptable behavior and a lack of cultural understanding when she stated to a Black student that "you people are unteachable", and an assistant principal stating that "it's a jungle out there in the hallways" and refused to leave her office.

Therefore, we are calling for an immediate independent investigation by the State of Missouri and the Department of Elementary and Secondary Education into the massive drop-out and suspension of minority students.
Also, in light of Dr. Marks' track record and hiring practices, we are calling for an immediate investigation into the hiring of his crony and classmate, Don Steele, as a $1,100-day consultant for some esoteric concept called "Paradigm Shift", which we feel is a misallocation of resources, yet our teachers are in need of some basic classroom materials and training. (200 nurses have been eliminated from the 1992-93 budget, most of them Black).
The Long Range Magnet Plan has been drafted and renewed without community input. We are calling upon Judge Clark to allow this plan to be reopened so that this community can be a part of the process that has been insensitive to our community needs.
Our community and our kids are taking an academic and social beating very analogous to the physical and emotional beating that Rodney King took. We are not going to lie still any longer and let business go on as usual.

 
 Source: Secretary of the Board Report

School District

1974-75

1975-76

TOTAL TAX RATE (Operating Levy Plus Debt Service)
1976-77 1977-78 1978-79 1979-80

1980-81

1981-82

1982-83

School Data March 1985

1983-84

Unadjusted

Adjusted

115-115 St. Louis City

048-010 Kansas City 33

039-141 Springfield R-XII

096-095 Parkway

096-088 Hazelwood

024-093 North Kansas City

011-082 St. Joseph

096-089 Ferguson-Florissant

048-077 Independence 30

010-093 Columbia 93

096-091 Rockwood R-VI

092-088 Francis Howell R-III

096-094 Hehlville R-IX

048-068 Blue Springs R-IV

050-012 Fox C-6

048-072 Hickman Mills C-1

018-013 Raytown C-2

4

092-087 Ft. Zumwalt'

049-148 Joplin R-V111

026-006 Jefferson City 048-071 Lee's Summit R-V11

096-110 Ritenour

096-090 Pattonvllle 8.111

$2.86 4.05 3.77 5.62 5.22 4.50 4.22 5.38 4.70 4.40 4.89 4.96 4.42 5.45 4.75 5.68 5.75 456 4.10 3.24 5.20 4.77 4.43

$2.86 3.73 3.52 5.62 5.22 4.05 3.82 5.38 4.34 4.09 4.89 4.60 4.42 4.98 4.69 5.12 5.00 4.30 4.03 3.05 5.27 4.77 4.43

$3.65 3.93 4.00 5.62 5.22 4.25 4.12 5.38 4.63 4.35 4.89 4.89 4.42 4.98 4.72 5.12 5.15 4.56 4.03 3.10 5.37 4.77 4.43

$3.65 3.91 4.00 5.62 5.22 4.25 4.12 5.38 4.63 4.44 4.89 4.89 4.42 5.45 4.75 5.12 5.15 4.56 4.03 3.10 5.31 4.77 4.43

$3.65' 3.90 4.00 5.62 5.22 4.25 4.12 5.38 4.63 4.63 4.89 4.89 4.42 5.45 4.75 5.12 5.15 4.56 4.07 3.10 5.35 4.77 4.43

$3.65 3.85 . 4.00 5.62 5.22 4.25 4.12 5.38 4.63 4.63 4.89 4.89 4.42 5.45 4.75 5.12 5.15 4.56 4.07 2.98 5.47 4.77 4.43

$3:65 3.81 4.00\ 5.62 5.22 4.10 4.27 5.38 4.63 4.63 4.89 4.89 4.42 5.45 4.75 5.12 5.15 4.56 4.07 2.98 5.54 4.77 4.43

$3.81 3.81 4.00 5.62 5.22. 4.10 4.27 5.38 4.63 4.63 4.89 4.89 4.42 5.45 4.75 5.12 5.15 4.56 4.07 2.98 5.54 4.77 4.43

$3.65 3.80 4.00 5.62
4.10 4.27 5.38 4.63 4.63 4.89 4.89 4.42 5.45 4.75 5.12 5.15 4.56 4.07 2.98 5.54 4.77 4.43

$3.75 3.79 4.00 5.47 5.22 3.75 4.27 5.38 4.63 4.79 4.89 4.98 4.42 5.45 4.75 5.12 5.15 4.56 4.07 2.98 5.64 4.77 4.43

3.43 3.52 5.30 4.82 3.39 3.62 5.04 3.90 4.14 4.57 4.29 4.04 4.70 3.67 4.41 4.54 4.87 3.52 2.60 5.06 4.34 4.19

Crrr:
W
H (rDt
rt uJ

: School District 096-109 Normandy 050-001 Northwest R-I 083-005 Park 11111 R-V 092-090 St. Charles 048-066 Fort Osage R-I 096-112 University City 096-093 Lindbergh R-VIII 012-109 Poplar Bluff R-I 096-111 Riverview Gardens 048-074 Grandview C-4 100-063 Sikeston R-VI 085-046 Waynesville R-VI 096-092 Kirkwood R-VII 016-096 Cape Girardeau 080-125 Sedalia 200 096-119 Special District of St. Louis Co. 096-114 Webster Groves 064-075 Hannibal 60 072-074 New Madrid R-I 024-090 Liberty 53 081-096 Rolla 31 019-152 Belton 124 053-113 Lebanon R-111 073-108 Neosho R-r;-V 036-126 Merimec Valley 050-014 DeSoto 73 024-089 Excelsior Springs
STATE AVERAGE

1974-75 1975-76 1976-71 1977-78 1978-79 1979-80 1980-81 1981-82 1982-83

$5.19 4.88 5.62 5.63 5.60 5.59 4.45 4.35 4.91 5.61 4.19 4.00 4.89 3.77 3.99
3.50 5.31 3.86 3.51 5.40 4.45 6.17 3.87 3.40 4.65 4.94 4.30
$3.83

$5.19 4.82 4.57 5.28 5.05 5.59 4.45 4.10 4.91 5.33 3.98 3.75 4.89 3.5 3,83 ., 3.50 5.69 3.47 3.48 4.88 4.10 5.54 3.98 3.36 4.20 4.83 3.75
$3.66

$5.19 4.88 5.25 5.63 5.60 5.59 4.45 4.35 4.91 5.33 3.98 3.75 4.89 3.73 3.48
0.55 5.69 3.82 3.49 5.08 4.40 5.54 3.95 3.41 4.65 4.83 4.25
$3.91

$5.19 4.88 5.15 5.63 5.60 5.59 4.35 4.35 4.91 5.33 4.13 3.75 4.89 3.73 3.99
0.55 5.69 3.82 3.51 5.22 4.45 5.54 4.11 3.69 4.65 4.94 4.25
$4.02

$5.19 4.88 5.35 -5.41 5.60 6.47 4.35 4:35 4 91 5.33 4.23 3.75 4.89 3.73 3.99
0.55 5.69 3.82 3.51 1.22 4.45 5.54 4.06 3.69 4.45 4.94 4.20
$4.04

$5.19 4.88 5.35 5.30 5.60 6.47 4.35 4.35 4.91 5.33 4.23 3.75 4.89 3.73 3.99 . 0.55 5.69 3.82 3.51 5.22 4.30 5.54 4.01 3.69 4.65 4.94 4.20
$4.12

$5.19 4.88 5.35 5.254 5.,60 6.47 4.35',. 4.35 4.91 5.33 4.23 3.75 4.89 3.73 3.99

$5.18
,J'
4.88
8.15
.1.50 ''..
1.60 -
6.47
4.35
4.35
4.91
5.33
4.23
3.15
4.89
3.73
3.99

0.55 5.69 3.82 3.51 5.22 4.30 5.54 4.01 3.69 4.6 4.94 4.20

0.55 5.69 3.82 3.51 5.22 4.30 5.54 4.01 3.60 , 4.65 4.94 4.70

$4.15

$4.21

$5..19 4:88 5.15 5.50 5.60 6.47 4.35 4.35 4.91 5.33 4.23 3.75 5.15 3.73 3.99
0.55 6.48 3.82 3.51 5.22 4.30 5.54 4.01 3.55 4.65 4.94 4./0
$4.26

1983-84

Unadjusted

Adjusted

$5.19 4.88

$4.43 3.94

5.46 5.50

1.-90 4.97

5.60

4.42

6.47

.5.88

4.35

4.05

4.35

3.34

4.91

4.32

5.33 4.23

4.78 3.23

3.45

1.96

5.15

4.86

3.73 3.99

3.41 3.41

0.55 6.48 4.11 3.51 5.22 4.28 6.06 3.99 3.55 4.45 4.94 4.70
$4.28

0.53 6.11 3.19 3.10 4.67 3.53 4.49 3.09 2.57 3.51 3.66 3.86
$3.89

 
 COALITION FOR EDUCATIONAL AND ECONOMIC JUSTICE
P.O. Box 6082 Kansas City, Missouri 64110
FOR IMMEDIATE RELEASE-
■ LARGE NUMBER OF AFRICAN-AMERICAN CHILDREN SENT BACK HOME
■ 300 AFRICAN-AMERICAN KINDERGARTEN STUDENTS WAREHOUSED AT ATTUCKS ANNEX FAIL TO RECEIVE ADEQUATE TRANSPORTATION
■ WALTER MARKS AND ART RAINWATER MAKE EXCUSES FOR MISTREATMENT OF AFRICAN-AMERICANS
The community must not overlook the second class status and mistreatment of African-American youngsters by the KCMSD. While the KCMSD has been in the midst of a self-congratulatory PR campaign, they have failed to acknowledge the trauma inflicted on Black students:
1. Over 100 Black students at METRO High School were sent home on the first day of school according to our investigation (Rainwater says only 25, the Principal says 40-50).
2. Black Kindergarten students dumped into the OLD Attucks Warehouse did not receive adequate transportation services.
3. Hundreds of African-American secondary students assigned to Bingham and Van Horn did not have class schedules and spent several days packed into the auditorium and cafeteria doing nothing.
Unfortunately, neither the unenlightened white leadership of this district (Walter Marks and Art Rainwater) nor Arthur Benson are very concerned about the plight of OUR children. Despite these and other abuses of African-American children the school district called the opening a success. Marks and Rainwater dismiss these problems as minor cases of poor judgement or unavoidable occurrences. WE DISAGREE! Had a suburban or private school principal sent 25, 40, or any number of white students back home, for no reason, on the first day of school he would have been fired on the spot. Our children are entitled to similar standards. Why do we have to accept second rate uncommitted and insensitive school administrators?
Both the district and Arthur Benson showed more interest in and did more to transport, one white child from NORTH OF LIBERTY, MISSOURI, than they did 300 African-American kindergarten students dumped into the old Attucks annex. Why do those people who apparently don't place much value on the education and treatment of our youth have control of our schools?
"It is far better to be free to govern, or mis-govern, yourself than to be governed by anybody else." KWAME NKRUMAH
We can no longer accept the MIS-EDUCATION OF OUR YOUTH CHANGES MUST BE MADE!

 
 438 F.Supp. 830 United States District Court, W.D. Missouri, Western Division.
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., v.
STATE OF MISSOURI et al.
No. 77-0420-CV-W-1. |
Oct. 4, 1977.
Synopsis Defendants in school desegregation action filed motion to disqualify based on 28 U.S.C.A. ss 455(a) and 455(b)(1). The District Court, John W. Oliver, Chief Judge, held that: (1) fact that judge had, some 15 years prior to filing of instant case, represented one of the school boards involved in the action did not require disqualification on the grounds that his impartiality might reasonably be questioned; (2) judge was not required to disqualify himself immediately on the ground that he have personal knowledge of disputed evidentiary facts when it appeared unlikely that such facts would be at issue; but (3) judge would nonetheless recuse himself on his own motion pursuant to broader command of Canon 2 of the Code of Judicial Conduct approved by the Judicial Conference of the United States and in the hopes of facilitating a more expeditious and cooperative resolution of the case.
Order accordingly.
Attorneys and Law Firms
*831 James R. Borthwick, Taylor Fields, Kansas City, Mo., Robert E. Manley, Cincinnati, Ohio, for plaintiffs.
Timothy H. Bosler, Liberty, Mo., Lawrence R. Brown, Kansas City, Mo., Rufus B. Burrus, Independence, Mo., Harry D. Dingman, Kansas City, Mo., Elvin S. Douglas, Jr., Harrisonville, Mo., Donald C. Earnshaw, Lee’s Summit, Mo., Hollis H. Hanover, Lonnie J. Shalton, Jack W. R. Headley, Kansas City, Mo., Charles N. Henson, Topeka, Kan., Ronald G. Hinkle, Olathe, Kan., Norman Humphrey, Independence, Mo., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, Mo., Hugh H. Kreamer, Olathe, Kan., James P. Lugar, Kansas City, Kan., James H. McLarney, Kansas City, Mo., Julius M. Oswald, Blue Springs, Mo., P. John Owen, Kansas City, Mo., Willard L. Phillips, Kansas City, Kan., Scott A. Raisher, Missouri Asst. Atty. Gen., Kansas City, Mo., Eugene B. Ralston, Topeka, Kan., Edward E. Schmidt, Joseph A. Sherman, William W. Shinn, William L. Turner, Kansas City, Mo., John L. Vratil, Shawnee Mission, Kan., Richard H. Zehring, Asst. U. S. Atty., Kansas City, Mo., for defendants.
MEMORANDUM AND ORDERS IN REGARD TO MOTION TO DISQUALIFY
JOHN W. OLIVER, Chief Judge.
I.
This school desegregation action is a case of first impression. In essence, plaintiffs seek to create by federal court order a Greater Kansas City metropolitan school district, with jurisdiction over Missouri and Kansas children in several school districts in each of those States, presumably to be run by this federal court.

In the Western District of Missouri standard procedures require that new cases be assigned randomly to one of the four active judges. After the case was assigned to me, counsel for the many parties involved began the paperwork which attends the birth of any major case. By early September, numerous motions were ripe for ruling and therefore were brought to my attention by the Clerk’s office.
After review of the various motions and in accordance with standard procedures in all complex cases, I entered an order on *832 September 6, 1977, setting this case for a pretrial conference on September 21, 1977. The purpose of that conference was to sort out the various motions and establish agreed procedures which would guarantee the prompt decision of substantial threshold questions by this Court. Thereafter, the parties would have been able to take a speedy and inexpensive interlocutory appeal to the Court of Appeals.
The filing by some defendants of the pending statutory motion to disqualify me from sitting as the trial judge in this case had the effect of bringing the orderly processing of this case to a temporary standstill.
Although various of the pending motions to dismiss are based upon several grounds which all parties agree do not require the presiding judge to rule or determine any disputed evidentiary facts, I reiterate the view expressed at the September 21, 1977, pretrial conference that the pending statutory motion to disqualify, filed September 19, 1977, should be given priority attention. For reasons I shall state, defendants’ statutory motion to disqualify will be denied. An order will also be entered by me as Chief Judge, on my own motion, transferring this case to the Honorable Russell G. Clark, presiding judge of Division III, for all further proceedings.
II.
Defendants’ statutory motion to disqualify is based solely upon 28 U.S.C. §§ 455(a) and 455(b)(1). Section 455(a) provides that a judge shall disqualify himself in any proceeding in which “his impartiality might reasonably be questioned.” Section 455(b)(1) provides that a judge also shall disqualify himself where he has “personal knowledge of disputed evidentiary facts concerning the proceeding.”
Defendants allege only three factual grounds to support their motion. Defendants allege (1) that prior to my appointment to this Court by President Kennedy in 1962, I was an active and practicing member of the predecessor law firm which presently represents the plaintiffs in this case; (2) that as a member of that law firm I “advised, counseled, and represented the School District of Kansas City, Missouri, one of the plaintiffs in this cause, during the period of time alleged to be relevant”; and (3) that “as attorney for the School District of Kansas City, Missouri, the Honorable John W. Oliver would have participated in or been personally aware of actions taken or not taken by that district and the defendants in this lawsuit which will serve as the basis both for some of plaintiffs’ claims and defendants’ defenses in this cause.”
It is important to note at the outset what is not presented by defendants’ statutory motion to disqualify. Defendants’ statutory motion is not based on 28 U.S.C. § 144, which permits a party to disqualify a judge on the basis of “personal bias or prejudice either against him or in favor of any adverse party.”1 Nor do the defendants attempt to rely upon that portion of Section 455(b)(1) which provides that a judge should disqualify himself “where he has a personal bias or prejudice concerning a party.”
Had any of the numerous moving defendants elected to base their statutory motion to disqualify on any alleged ground that I in fact have “a personal bias or prejudice against him or in favor of any adverse party,” within the meaning of Section 144, or that I in fact have “a personal bias or prejudice concerning (any) party” in the case, within the meaning of Section *833 455(b)(1), such a party would have been required on pain of perjury to file a timely and sufficient affidavit setting forth “the facts and the reasons for the belief that bias or prejudice exists.”
In addition, counsel for such a party would have been required to file a certificate that the affidavit of the party had been made in good faith. It is clear that “28 U.S.C. § 455 is no substitute for the mandatory requirements of 28 U.S.C. § 144 with respect to a motion to disqualify a judge,” Town of East Haven v. Eastern Airlines, Inc., 304 F.Supp. 1223, 1225 (D.Conn. 1969) (Timbers, C. J.). In other words, if anyone really believed that I have any bias or prejudice for or against any party in this case, the statutes provided an appropriate procedure to make such a charge.
Although the suggestions in support of the motion vaguely refer to “questions (which) have been raised by members of

school boards and their constituents,” it is clear that not one of the moving defendants attempted to present in the manner required by law any allegation that I in fact have any bias or prejudice for or against any party to this litigation. Any question of bias or prejudice simply is not presented in this case.
It is possible, if not probable, that some of the unidentified members of the school boards and their unidentified constituents may be quite surprised to learn that counsel did not base their statutory motion to disqualify on any alleged bias and prejudice of the judge who drew this case. It is clear from both the suggestions in support of the motion and some of the statements made by some counsel at the September 21, 1977, pretrial conference that the heat, gossip, and controversy always engendered by the mere filing of any sort of desegregation case apparently was transmitted from the unidentified “members of the school boards and their constituents” to counsel, who in turn felt “compelled” to file the pending statutory motion to disqualify.
What we have said, of course, does no more than say what questions are not presented by the pending motion. The fact that no question of bias and prejudice is presented in this case, does not, however, relieve me of the duty to consider whether the three grounds alleged in the motion are sufficient in fact and in law to support defendants’ statutory motion to disqualify. [1] It is irrational to believe that my impartiality might reasonably be questioned within the meaning of Section 455(a) by the fact that my old law firm represents the plaintiff and by the fact I advised, counseled, and represented the School District of Kansas City, Missouri, over fifteen years ago. Every lawyer from my old firm who is active in this case joined that firm long after I was appointed to the bench. Most of the members of the school board who served the School District during the time I was a practicing lawyer are either dead or long out of office. I can hardly count the number of different superintendents who have served the School District of Kansas City since I have been on the bench, many of whom I never personally met.
Moreover, this is not the first time I have sat impartially in a case involving both the school board and my own firm. Seven years ago, with the consent of all parties and their counsel, I sat in Brenner v. School District of Kansas City, Missouri, 315 F.Supp. 627 (W.D.Mo.1970), affirmed by the Supreme Court of the United States in 403 U.S. 913, 91 S.Ct. 2225, 29 L.Ed.2d 692 (1971). That case, under the applicable law, required a decision against both my old law firm and the school district. [2] A different question is presented by defendants’ allegation that as a practicing lawyer I necessarily “would have participated in or been personally aware of actions taken or not taken by (the School District of Kansas City, Missouri) and the defendants in this lawsuit which will serve as the basis both for some of plaintiffs’ claims and defendants’ defenses in this case.” Defendants contend that I must disqualify myself under both Section 455(a) and Section 455(b)(1) because I may have “personal knowledge of disputed evidentiary facts *834 concerning the proceeding” within the meaning of Section 455(b) (1).
That suggestion was made to this Court on September 19, 1977, in defendants’ motion to disqualify and suggestions in support. On September 20, 1977, however, counsel for all the moving defendants took a completely inconsistent position. For example, counsel representing the Missouri school districts stated in a written response filed September 20, 1977, that “(i)t is readily apparent from even a cursory review of plaintiffs’ ‘Outline’ that no additional facts are needed to rule on the motions to dismiss.”
Indeed, the Missouri school district defendants advised me in writing on September 20, 1977, that plaintiffs’ requests for discovery should be denied because no additional factual data needed to be before the Court for it to rule the motions to dismiss. Defendants went so far as to accuse plaintiffs of attempting “to embroil the Court and the parties in an unwise expenditure of time and money prior to a determination of the threshold issues raised by defendants’ motions which would terminate this case” without any evidentiary hearing whatever. Other defendants who joined in the motion to disqualify took similarly inconsistent positions in regard to whether it may ever be necessary for the judge presiding over this case to decide any “disputed evidentiary facts concerning the proceeding” within the meaning of Section 455(b)(1).
It is therefore apparent that the most recent statement of counsel for the defendants who filed the motion to disqualify reflects that such counsel, within twenty-four hours, completely abandoned any idea that it was inevitable that a judge of this Court would ever be required to resolve any factual dispute as to any relevant and material evidence about which he may have acquired some personal knowledge between the years of 1954 and 1962. Moreover, I have assured counsel repeatedly that I would recuse myself immediately should my personal knowledge of facts ever become relevant.
We need go no further in considering the statutory motion to disqualify than to find and conclude that the defendants have not carried the burden of establishing sufficient grounds for statutory disqualification under either Section 455(a) or Section

455(b)(1). But, as I attempted to make clear in open court at the September 21, 1977, pretrial conference, a denial of a particular party’s statutory motion to disqualify is not decisive of whether a judge should continue to sit in a pending case.
We shall more fully develop our view of how a judge must exercise his judicial discretion in regard to recusement on his own motion in the next part of this memorandum opinion.
III.
Several weeks before the statutory motion to disqualify was filed in this case, I decided, on my own motion, to recuse in United States v. Armco Steel Corporation, et al., No. 77-00094-CR-W-1. In concluding that I should not sit in that case I followed my consistent practice for over fifteen years of stating the principles of law to be applied and how I believed those principles should be applied to the particular factual circumstances in the case then under consideration in the following language: The statutory requirement stated in Section 455(a), Title 28, United States Code, that a judge “shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned” has been broadened by the additional requirements contained in the Code of Judicial Conduct for United States Judges, adopted by the Judicial Conference of the United States at its April and September, 1973, meetings. Canon 2 of that Code requires that a judge not only avoid impropriety in regard to the conduct of his duties but that he should avoid even the appearance of impropriety in the conduct of his office.
Because this is only the second instance in which I have been required to consider a statutory motion to disqualify since I have been on the bench, I believe it important to *835 state the reasons why I have decided on my own motion to assign this case to another judge.2
It is my view that the duty to recuse stated in the Code of Judicial Conduct, which was developed by the Judicial Conference of the United States, establishes a higher standard than that imposed by any of the various statutes passed by the Congress. It is clear to me that in some exceptional cases a judge may be under duty to deny a motion to disqualify based on statutory grounds but that, consistently with the higher standard enunciated in the Code of Judicial Conduct, he should nevertheless take himself out of the case.
Canon 2 of the Code of Judicial Conduct codifies the delicate and difficult duty of a judge to conclude whether his decision to sit may reasonably present even an appearance of impropriety. That duty is a judicially imposed duty and has as its source principles and experience which are quite independent of duties which may be imposed by legislative action. Indeed, the Congress passed its first disqualification statute in 1911. Until that time, the standards for recusement were established solely by the judicial branch of our government.
Mr. Justice Frankfurter’s statement of his reasons for refusing to sit in Public Utilities Commission v. Pollak, 343 U.S. 451, 466, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), has been the most helpful judicial statement assisting me to determine, over the years, whether I should or should not sit in a particular case. Mr. Justice Frankfurter recused in that case and expressed his view, with which I agree, that “it is desirable to state why one takes himself out of a case.” This is what he said in that case:
The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. . . . This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. . . . The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact. (343 U.S. at 466-67, 72 S.Ct. at 822-23; emphasis added)
United States v. Quattrone, 149 F.Supp. 240 (D.D.C.1957), reflects the view of another judge who agreed with Mr. Justice Frankfurter’s statement. Judge Youngdahl, the trial judge in that case, stated:
The Court does not believe that any general principles can be laid down concerning the degree to which an appearance of bias, interest, or improper motive must exist before voluntary disqualification becomes desirable in any particular case. The availability of other judges, the inconvenience or prejudice to the public or parties which may result from the delay, the importance of the issues involved in the case, the nature of the actions which give rise to the appearance of partiality, and many other factors all may be

relevant.
*836 In addition, Judge Youngdahl properly said that the judge must also take into consideration the fact that confidence in the Judiciary is essential to the successful functioning of our democratic form of government. That form of government could not long survive if citizens could not have faith in the impartiality of judges. (149 F.Supp. at 242)3
[3] Kelley v. Metropolitan County Board of Education of Nashville, 479 F.2d 810 (6th Cir. 1973), also involved a school desegregation case. Judge Morton, the trial judge, recused on his own motion after concluding that there was no valid statutory ground for disqualification. His sua sponte order of disqualification was affirmed by the Court of Appeals for the Sixth Circuit in a short per curiam order. Judge McCree’s concurring opinion reflects my view of the applicable law. Judge McCree stated at the outset:
A judge, although perhaps not legally disqualified under 28 U.S.C. §§ 144, 455, should recuse himself if he knows of some reason why he should not sit, and in such a case should state the basis for his decision. If there is no reason other than his disinclination to hear a matter, he should not be permitted to step aside merely to avoid an unpleasant or onerous task. A litigant is entitled to have a judge to whom a matter is assigned in due course hear and dispose of that matter if there is no reason to disqualify him or otherwise to make him unavailable. (479 F.2d at 811-12)
Judge McCree noted that “the record in this case disclosed an atmosphere of hostility and suspicion,” and that “since the beginning of this litigation, the parties have been able to agree upon virtually nothing.” 479 F.2d at 812. Judge Morton, noting the efforts of some of the parties “to marshal public opinion,” determined that he should, on his own motion, take “the drastic step of disqualifying himself.” In doing so, he said:
The quality of justice cannot be dependent upon the identity of a particular individual who sits on a particular Court at a particular time. A general uniformity of justice is effected by the nature and structure of our judicial system. It is the process, not the particular person, which determine the justice applied in our society. (Id. at 812-13)
Judge Morton stated the quite practical hope that “(p)erhaps changing Judges can operate as it sometimes appears when baseball clubs change managers maybe emotions can be calmed so intelligence can have an opportunity.” Id. at 813.
After giving the motion the most careful consideration, we are convinced that the circumstances of this case require that, on our own motion, we immediately transfer this case to another judge so that every possible obstacle to the orderly and expeditious processing of this case can be removed.
*837 IV.
[4] Consistent with the principles of law above stated, we find and conclude that, in the exercise of our judicial discretion, we should enter an order transferring this case to another judge of this Court for all further proceedings. We have balanced the following factors in reaching that conclusion.
1. Experience establishes that the processing of a multi-party case requires a high degree of cooperation between counsel and the Court. This is particularly true in a case the very nature of which is calculated to produce controversy and uninformed emotional reaction. The views expressed at the September 21, 1977, pretrial conference and the apparent control which some of the parties apparently exercise over their respective counsel support my experienced judgment that the necessary degree of cooperation is not likely to be attained if I continue to sit in this case. This is particularly true of counsel who have never appeared before in any case during the time I have served this Court.
On September 6, 1977, this Court stated of record, long before any motion to disqualify was ever filed, that the files and records in this case up to that time made it “clear that counsel for all parties have elected to proceed at arms length with the

result that a mountain of unproductive paperwork already has accumulated in connection with this case.” I stated with some degree of bluntness that I did not share plaintiffs’ view that “final determination of all the issues raised by the motions may be measured in years rather than months.” Some of the statements made by some counsel for some of the parties suggest that they may not be particularly unhappy with plaintiffs’ estimate of how long this case may be in litigation.
We suggested in our opinion of September 6, 1977, but did not order, that counsel for the various defendants confer and consider agreeing upon the designation of a small committee of defense counsel who could serve as liaison counsel for all defense lawyers who appear of record.
The orders entered on September 6, 1977, sought the necessary cooperation of counsel in an effort to isolate what may be controlling questions of law which could be decided on an undisputed factual record and which could, after decision in this Court, be certified for decision by the Court of Appeals for the Eighth Circuit under the provisions for interlocutory appeal in 28 U.S.C. § 1292(b). Consistent with that effort, counsel for plaintiffs were expressly ordered to state all factual data which they believed should be in the record in separately number sentences so that defendants would be able to respond in a manner which would eliminate any factual dispute under the circumstances.
The files and records show that counsel for plaintiffs only partially complied to this Court’s order of September 6, 1977, and that counsel for the defendants were not able to agree upon an appropriate liaison committee. While the partial performance by counsel for all parties was not so deficient as to be beyond cure in an ordinary case, it must be recognized that any desegregation case is not an ordinary case. The reluctance of counsel to do anything toward improving the atmosphere for cooperation was, in my judgment, conclusively demonstrated at the September 21, 1977, pretrial conference. The pressing need for cooperation is not going to go away. It is my considered judgment that a change of judge may enable counsel to make a fresh start with a full commitment that they, rather than their clients, are responsible for the orderly processing of this case.
2. The demonstrated willingness of counsel to feel “compelled” to file the statutory motion to disqualify, with apparently careful selection of statutory grounds which obviated the mandatory filing of an affidavit by a party in which such party would be required to “state the facts and reasons for the belief that bias and prejudice exist,” suggests that counsel for some of the defendants do not believe it possible to explain to some school board members and their constituents that the unidentified questions in their minds did not support *838 their apparent fear that the judge to whom the case was assigned would violate his oath of office.4 We are satisfied that it would be virtually impossible for some counsel to explain to some clients the denial of their statutory motion to disqualify.
3. We are convinced that the completely inconsistent position which the moving defendants have taken in regard to the question presented under Section 455(b) (1) makes it reasonably probable that rumors and gossip will circulate in the community that the judge trying the case is going to determine disputed questions of fact concerning matters which occurred while he was counsel for the Kansas City School District. I do not believe that the fact that I stated in open court that I would not do so under any circumstances could adequately be communicated to persons who would choose to believe otherwise regardless of what advice they may get from counsel. Indeed, I do not believe that counsel would be able to explain that if I ever determined facts of which I have personal knowledge, the defendants would have a sure ground for reversal on appeal. See In re Rodgers, 537 F.2d 1196 (4th Cir. 1976). I am reasonably satisfied that at least some of the unidentified school board members and some of their unidentified constituents would view any advice from counsel as “legal mumbo-jumbo.”
4. The nature of the pending action requires that any doubt about the appearance of any possible impropriety should be resolved in favor of recusal on my own motion. Counsel for all parties properly recognize that desegregation cases are not ordinary cases. This Court indicated its concern in regard to the possibilities of unwarranted expense and delay long before any statutory motion to disqualify was filed. We are now concerned that a possible appeal or mandamus action flowing from my continued participation in this case could result in further delay and expense to the parties.5
5. While the availability of other judges to try the case is not a controlling circumstance, see Wolfson v. Palmieri, 396 F.2d 121, 125 (2nd Cir. 1968), the fact that other qualified judges are available must be given appropriate consideration.
6. Finally, we believe that the overriding consideration is whether every possible ground for the appearance of impropriety should be removed by transfer to a judge of this Court most completely removed from any sort of charge that he may have some predeliction in the manner in which the case is to be processed and decided. We return in the final analysis to the wisdom of Mr. Justice Frankfurter’s comment that “the guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.”

After concluding that I should step aside on my own motion, I consulted with all of the active judges of this Court in regard to how the case should be transferred. All agreed that I should exercise the power vested in me as Chief Judge under 28 U.S.C. § 137, and expressed confidence that I would make the assignment to the judge who would be the least likely to have any possible apparent connection with the pending litigation. The obvious choice is the Honorable Russell G. Clark, who until recently was a resident of Springfield, Missouri. *839 After making that determination in my own mind, and after further consultation with my Brethren, I consulted Judge Clark and he is agreeable to the assignment.
For the reasons above stated, it is
ORDERED (1) that the pending statutory motion to disqualify should be and the same hereby is denied. It is further
ORDERED (2) that in light of the undersigned judge’s determination that he should recuse on his own motion in this case for the reasons above stated, the Clerk’s office is directed to set aside the original random assignment of this case to Division 1. It is further
ORDERED (3) that with the approval of all active judges of this Court, and acting pursuant to the power vested in the Chief Judge of this District under 28 U.S.C. § 137, this case should be and hereby is transferred for all further proceedings to Division 3 of this Court, the presiding judge of which is the Honorable Russell G. Clark.

All Citations 438 F.Supp. 830

Footnotes

1

Section 144 provides as follows:

Whenever a party to any proceeding in a district court makes and ﬁles a timely and sufﬁcient afﬁdavit that the

judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any

adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such

proceeding.

The afﬁdavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be ﬁled not

less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be

shown for failure to ﬁle it within such time. A party may ﬁle only one such afﬁdavit in any case. It shall be

accompanied by a certiﬁcate of counsel of record stating that it is made in good faith.

2

I should note that I agree with what was said by former Chief Judge, now Senior Judge, Becker in Deal v. Warner,

369 F.Supp. 174 (W.D.Mo.1973), and United States v. Civella, 416 F.Supp. 676 (W.D.Mo.1975), in regard to

statutory disqualiﬁcations.

In addition, while I do believe that the 1974 amendment of Section 455(a) was intended to and did broaden the

statutory grounds for disqualiﬁcation, I do not believe that all case law developed in connection with other

disqualiﬁcation statutes which have neither been repealed or amended somehow has been taken off the books by

the 1974 amendment of Section 455(a).

The grounds for statutory disqualiﬁcation of a federal judge have, of course, changed substantially since I was

admitted to the Bar over forty years ago. In those days lawyers who wanted to try to disqualify a federal judge

were, in some districts, advised to write out their motion to disqualify on the back of their license to practice law.

Mr. Justice Rehnquist’s nunc pro tunc memorandum, published in Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34

L.Ed.2d 50 (1972), in which he stated his reasons for refusing to take himself out of that case, shows that times

have changed somewhat in the intervening years. I agree generally with that statement.

3

In still another portion of his opinion in Quattrone, Judge Youngdahl stated the problem which cuts across all

cases in which questions of disqualiﬁcation are presented either by a party’s statutory motion or by the judge’s

own evaluation of his judicial duty:

In these times in which the Judiciary has been recklessly attacked and its integrity wrongfully challenged, it is

particularly important that the problem of voluntary disqualiﬁcation be carefully considered. For the Court would

be loath to give comfort to those who frivolously suggest disqualiﬁcation of members of the Judiciary on the

grounds of political or social prejudice. In such cases it seems clear that the integrity of the courts may best be

preserved through a ﬁrm refusal to yield to its attackers. For voluntary disqualiﬁcation under those circumstances

would only serve the malicious purpose of the Court’s detractors.

Forty years ago, Judge Otis of this Court dealt with the same problem in more colorful language in United States

v. Buck, 18 F.Supp. 827 (W.D.Mo.1937), in a case in which he refused to recuse. He said:

I think there is no merit whatever in these afﬁdavits. Thinking that, I will not voluntarily desert the post at which I

have been put. Certainly it will take more to induce me to quit it than afﬁdavits patterned on that well-known

disqualiﬁcation statutes which have neither been repealed or amended somehow has been taken off the books by the 1974 amendment of Section 455(a). The grounds for statutory disqualiﬁcation of a federal judge have, of course, changed substantially since I was admitted to the Bar over forty years ago. In those days lawyers who wanted to try to disqualify a federal judge were, in some districts, advised to write out their motion to disqualify on the back of their license to practice law. Mr. Justice Rehnquist’s nunc pro tunc memorandum, published in Laird v. Tatum, 409 U.S. 824, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972), in which he stated his reasons for refusing to take himself out of that case, shows that times have changed somewhat in the intervening years. I agree generally with that statement.

3

In still another portion of his opinion in Quattrone, Judge Youngdahl stated the problem which cuts across all

cases in which questions of disqualiﬁcation are presented either by a party’s statutory motion or by the judge’s

own evaluation of his judicial duty:

In these times in which the Judiciary has been recklessly attacked and its integrity wrongfully challenged, it is

particularly important that the problem of voluntary disqualiﬁcation be carefully considered. For the Court would

be loath to give comfort to those who frivolously suggest disqualiﬁcation of members of the Judiciary on the

grounds of political or social prejudice. In such cases it seems clear that the integrity of the courts may best be

preserved through a ﬁrm refusal to yield to its attackers. For voluntary disqualiﬁcation under those circumstances

would only serve the malicious purpose of the Court’s detractors.

Forty years ago, Judge Otis of this Court dealt with the same problem in more colorful language in United States

v. Buck, 18 F.Supp. 827 (W.D.Mo.1937), in a case in which he refused to recuse. He said:

I think there is no merit whatever in these afﬁdavits. Thinking that, I will not voluntarily desert the post at which I

have been put. Certainly it will take more to induce me to quit it than afﬁdavits patterned on that well-known

modernization of an ancient epigram:

‘I do not like thee, Dr. Fell,

The reason why I cannot tell

But this I know, I know full well,

I do not like thee, Dr. Fell.’

4

28 U.S.C. § 453 provides that “each justice or judge of the United States shall take the following oath or

afﬁrmation before performing the duties of his ofﬁce: ‘I, ______ ______, do solemnly swear (or afﬁrm) that I will

administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully

and impartially discharge and perform all the duties incumbent upon me as ______ according to the best of my

abilities and understanding, agreeably to the Constitution and laws of the United States. So help me God.’ ”

5

See United States v. Gilboy, 166 F.Supp. 220 (M.D.Pa.1958), in which Chief Judge Murphy deemed it appropriate

to step aside sua sponte in a case in which his denial of a statutory motion to disqualify had been approved by the

Court of Appeals for the Third Circuit because of the delay incident to defendants’ desire to petition the Supreme

Court of the United States for writ of certiorari.

 
 460 F.Supp. 421 United States District Court, W.D. Missouri, Western Division.
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al. v.
The STATE OF MISSOURI et al.
No. 77-0420-CV-W-1-3. |
Oct. 6, 1978.
Synopsis Kansas City Missouri School District and its students through their parents brought school desegregation action against the State of Missouri, its state Board of Education, certain Missouri school districts and certain Missouri officials, state of Kansas, its state Board of Education, certain Kansas school districts, the United States Department of Housing and Urban Development, the Department of Transportation and the Department of Health, Education and Welfare seeking metropolitanwide desegregation plan in greater Kansas City area. On various pretrial motions, the District Court, Russell G. Clark, J., held that: (1) complaint which alleged segregative condition throughout entire metropolitan area as result of intentional acts and omissions of Kansas and Missouri school districts stated claim for interdistrict relief; (2) Missouri long-arm statute did not authorize exercise of personal jurisdiction over Kansas defendants where alleged segregative acts and omissions of Kansas defendants occurred entirely within Kansas even though such acts allegedly had effect of causing Kansas City Missouri School District to be racially identifiable; (3) Kansas City Missouri School District did not have standing to maintain action asserting violation of students’ constitutional rights and would be realigned as party defendant; (4) students had standing to maintain action; (5) complaint was not so vague as to make impossible a responsive pleading by federal agencies and (6) denial of motion to dismiss, dismissal of Kansas school officials and school districts for lack of jurisdiction, denial of standing to Kansas City School District and realignment of that district would be certified.
Order accordingly.
Attorneys and Law Firms
*426 James R. Borthwick, Shirley Ward Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., Robert E. Manley, Cincinnati, Ohio, Taylor Fields, North, Colbert & Fields, Kansas City, Mo., for plaintiffs.
Lawrence R. Brown, George E. Feldmiller, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for defendant Missouri School Districts.
John L. Vratil, Prairie Village, Kan., Fisher, Ralston, Ochs & Heck, Eugene B. Ralston, Topeka, Kan., for defendant Kansas School Districts.
Curt T. Schneider, Atty. Gen., John R. Martin, First Asst. Atty. Gen., Topeka, Kan., for the State of Kansas and the Governor, Robert F. Bennett.
Barbara Allen Babcock, Barbara B. O’Malley, Brook Hedge, Attys., Dept. of Justice, Washington, D. C., Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., for federal defendants.
John D. Ashcroft, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, Mo., for Missouri State defendants.
MEMORANDUM AND ORDER

RUSSELL G. CLARK, District Judge.
This school desegregation action1is truly a case of first impression. In essence, plaintiffs seek a metropolitan wide desegregation plan in the greater Kansas City area which encompasses two states and seven counties. This metropolitan wide remedy would be the result of a declaration by this *427 Court at the conclusion of the evidence that the numerous defendants have failed to individually carry out their affirmative duties to eradicate segregation in the metro area and have actively contributed to segregation by individual or concerted actions.
Pending before this Court are the numerous and extensively briefed motions to dismiss filed by the defendants.2 For the reasons stated herein, the motions of all the defendants for dismissal of the action for failure to state a claim upon which relief can be granted are denied, the motions of the Kansas defendants for dismissal for lack of personal jurisdiction are granted, and the defendants’ motions to dismiss the Kansas City Missouri School District for lack of standing are granted. The Missouri defendants’ motions for joinder of persons needed for a just adjudication are denied as are their motions for a more definite statement. Finally, the federal defendants’ motion for a more definite statement is denied.
THE COMPLAINT
The plaintiffs are comprised of the Kansas City Missouri School District (KCMSD), by and through its officers the Board of Education and Superintendent. Joined as co-plaintiffs are the three minor children of one School Board member, and one minor child of another School Board member, represented by their parent-board members as next friends.
Although the individual defendants are in excess of 35 in number, they can be classified into three distinct classes and will be referred to accordingly: the “Kansas defendants” comprising the State of Kansas, the Kansas State Board of Education, and certain Kansas school districts within the metropolitan area and the executive officers of each respective defendant; the “Missouri defendants” comprising the State of Missouri, the Missouri State Board of Education, and certain Missouri school districts within the metropolitan area and the executive officers of each respective defendant; and the “federal defendants” comprising the United States Departments of Housing and Urban Development (HUD), of Health, Education and Welfare (HEW), and of Transportation (DOT), and the respective executive officers of each department.
The complaint is in eight counts against the respective defendants, each count incorporating by reference the general allegations which precede the individual counts. The general allegations describe the metropolitan region, the constitutional violation and resulting injury, and a description of the remedy sought.
Basically, it is alleged that metropolitan Kansas City covers a geographic area reaching into two states and seven counties, containing over 50 municipalities and separate school districts. Despite this overlap of governmental jurisdictions and political units, it is alleged that the metro area is essentially a single urban community in the daily course of commerce, employment, athletics, recreation, cultural activities, utilities, transportation, media and social services. The planning and development of highways, housing, medical care, sewer and water projects, etc. are all coordinated and conducted on a large metropolitan basis.
Although it is alleged that the metro area is in reality a single community with economic and social problems which are “shared by the entire community”, it is alleged that the states of Missouri and Kansas have intentionally “caused public education to be provided on a piecemeal basis by separate governmental units with arbitrarily determined boundaries.” Both states have provided public education in a “manner which has caused and increased racial segregation between defendant school districts and plaintiff district.”
The complaint also makes the following allegations: that prior to 1954 both Missouri and Kansas either mandated or encouraged segregation in housing, employment, *428 recreation, transportation, and public education. School districts “were the states’ tools for making segregation a reality” in the field of education. The purpose and effect of the unlawful maintenance of these segregative policies and practices was to concentrate minority race persons within the plaintiff school district, KCMSD. After 1954, the various defendants took certain steps toward desegregation in education and in other areas but the “state defendants have failed to remedy the primary effect of state-imposed racial segregation in the Kansas City metro community, i. e. the concentration of minority race persons within the boundaries of plaintiff school district.”

The “foreseeable and intentional result of the actions and refusals to act of all defendants has been the maintenance of racially isolated and identifiable school districts and thus a racially segregated school system in the Kansas city Metro Area.” Despite the efforts of the KCMSD, there exists a state system of racially segregated school districts in the metro area, racially identifiable when compared to the KCMSD. The intentional acts of the defendants have labeled the KCMSD with a “badge of inferiority” which deprives the students of equal protection of the laws “despite the fact that plaintiff school district is operating a unitary system within its state established and maintained boundaries.” Furthermore, these discriminatory actions have resulted in “white flight” the movement of middle class families away from the KCMSD, impacting it with a “progressively higher percentage enrollment of economically and socially disadvantaged minority race students.” Therefore, it is alleged, this process results in increased operating expenses for the KCMSD on a per pupil basis as “disadvantaged children are in greater need of individual attention, compensatory education, counseling and other educational services.” Furthermore, the tax base and taxing potential of the KCMSD is diminished to the “detriment of all plaintiffs herein.” Because the KCMSD is powerless to overcome these effects of the defendants’ segregative policies, only area-wide desegregation can undo the effects of area-wide segregative actions. “Without a metropolitan solution to a metropolitan problem, equal protection of the laws cannot be afforded the students of the plaintiff district.” Therefore, plaintiffs seek a judicially mandated reassignment of students among all districts which are parties to the suit.
After a year of extensive briefing on the various motions, with parties afforded an opportunity to present any and all legal suggestions, the issues were considered submitted to the Court on August 31, 1978, upon the last filing of a response by the KCMSD. Initially each individual defendant filed an individual response, either by way of motion or answer, to the plaintiffs’ complaint. Several of the school district defendants attached affidavits to their motions attesting to the fact that no discrimination had taken place within that district, by those officers, etc. As the litigation progressed, the defendants organized themselves into groups with similar interests and thereafter filed joint briefs and motions. The affidavits have not been considered by the Court and only the legal issues raised by motion are decided herein. Although the Court urged the parties to submit a joint stipulation of uncontested facts to assist the Court in its rulings, the parties preferred to submit the issues to the Court on the basis of the allegations in the complaint. Therefore, the factual data and factual allegations interspersed by the parties in their briefs, suggestions, and replies are not considered in ruling these motions.
I. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
[1] [2] Defendants have moved for dismissal pursuant to Rule 12(b)(6), Fed.R.Civ.Pro., on the grounds that plaintiffs have failed to state a claim upon which relief can be granted. Under this rule, dismissal for insufficiency of the complaint is proper only in the extraordinary case where the pleader makes allegations that show on the face of the complaint some insuperable bar to relief. *429 TV Signal Company of Aberdeen v. American Telephone and Telegraph Company, 462 F.2d 1256, 1258 (8th Cir. 1972), citing to Lewis v. Chrysler Motors Corporation, 456 F.2d 605, 607 (8th Cir. 1972). The legal test to be applied is not whether all of the relief asked for by the plaintiffs could possibly be granted, but whether, under any state of facts which might be established at a trial in support of the claim stated in the complaint, they could be accorded any relief. Lada v. Wilkie, 250 F.2d 211, 215 (8th Cir. 1957).
It is to this issue that defendants primarily direct their arguments for dismissal. That is, defendants argue that the desegregation remedy prayed for in the complaint is not mandated except where it has been shown that a school district is internally segregated or was created for racially discriminatory purposes. Defendants contend that because plaintiffs have alleged that the KCMSD is a unitary district and that because plaintiffs have not alleged that the District was established on racial lines, that under existing case authority, the legal conclusion can be reached that plaintiffs have failed to state a claim upon which relief can be granted, thus warranting dismissal. On the other hand, plaintiffs contend that the complaint sufficiently alleges that the intentional acts and omissions of the numerous defendants throughout the Kansas City metropolitan area have produced a significant segregative effect in the plaintiff school district, violative of the constitution, and mandating an interdistrict remedy.
To support their respective positions, both plaintiffs and defendants cite to the following important language of the United States Supreme Court in Milliken v. Bradley, (Milliken I), 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974):
The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. (citation omitted) Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has

been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy. 418 U.S. 744-745, 94 S.ct. at 3127, 41 L.Ed.2d at 1091.
It is the argument of the defendants that this language allows interdistrict remedies in two and only two situations: “where it has been shown that school district lines have been drawn with segregative purpose, or, where it is necessary to eliminate segregation in one district which is causally related to the unconstitutional acts of a second district.” (page 4, reply suggestions of Mo. school district defendants, filed Dec. 30, 1977). Therefore, the defendants argue, because there is no allegation in the complaint that the school district boundaries were intentionally drawn on the basis of race, and because the plaintiffs admit that the plaintiff school district is a unitary non-segregated system, the complaint fails to state a claim upon which the interdistrict relief prayed for in the complaint can be granted.
Defendants have incorrectly overemphasized the language of Milliken I in their narrow interpretation. Milliken I dealt solely with the appropriateness of an interdistrict remedy to cure the unconstitutional conditions existing totally within one district. As explained further in Milliken II ( *430 Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), the scope of the remedy must be determined by the violation found, and federal court decrees exceed appropriate limits “if they are imposed upon governmental units that were neither involved in nor affected by the constitutional violation.” Milliken II, 433 U.S. at 282, 97 S.Ct. at 2758, 53 L.Ed.2d at 757. Therefore, in Milliken I the Inter District remedy exceeded the intra District unconstitutional condition.
This complaint alleges a segregative condition throughout the entire metropolitan area which is the result of the intentional acts and omissions of the various defendants. The plaintiff school district alleges that it is a unitary district which does not assign students on the basis of race, yet in spite of its efforts to correct any vestige of segregation within its boundaries, the effects of the purposeful segregative acts and omissions of the defendants remain causing the plaintiff district to be racially identifiable. Therefore, plaintiffs seek to alter the racial compositions of the predominately black inner city school district and the predominately white suburban school districts. [3] Throughout the entire history of school desegregation litigation, the dichotomy between de facto and de jure segregation has been maintained. The essential element of a finding of de jure segregation is a current condition of segregation resulting from intentional state action. Keyes v. School District No. 1, 413 U.S. 189, 205, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). In United States v. State of Missouri, 515 F.2d 1365, 1370 (8th Cir. 1975), a decision approving an interdistrict remedy, the Eighth Circuit adopted the prerequisites announced by the Sixth Circuit in Oliver v. Michigan State Board of Education, 508 F.2d 178, 182 (6th Cir. 1974) wherein that court stated:
A finding of de jure segregation requires a showing of three elements: (1) action or inaction by public officials (2) with a segregative purpose (3) which actually results in increased or continued segregation in the public schools.
Herein, the plaintiffs’ complaint alleges a segregative condition throughout the entire metropolitan area which allegedly is the foreseeable result of the intentional acts and omissions of the various defendants. The plaintiffs’ complaint has alleged the three crucial elements outlined in Oliver, supra.
The complaint also prays for an exercise of the equitable powers of this Court to fashion a remedy crossing political boundaries. As stated in Lada v. Wilkie, supra, 250 F.2d at 215, in ruling these various motions to dismiss for failure to state a claim, the legal test is not whether all of the relief requested could possibly be granted, but rather whether any relief can be afforded. Having alleged an unconstitutional condition, the plaintiffs are entitled to the opportunity to present evidence on the issue at trial.
The complaint cannot and must not be dismissed solely because the factual situation herein differs from those cited as examples by the Court in Milliken I as situations where the remedy sought in Milliken I would have been appropriate. As

later applied in Hills v. Gautreaux, 425 U.S. 284, 296, 96 S.Ct. 1538, 47 L.Ed.2d 792, 802 (1976), the examples are merely illustrative of the principle that there must exist “an interdistrict violation or a significant segregative effect before the boundaries of separate school districts may be set aside by consolidating the separate units for remedial purposes.” The examples are not principles themselves, but only illustrative of the types of violations which would justify the particular remedy sought.
The language of Milliken I placed no limitations on what actions might be brought under the Fourteenth Amendment to correct unconstitutional conditions. It merely restated the proposition that a remedy must be tailored to correct the harm found to exist, and that an interdistrict remedy to correct an intradistrict violation was an excessive remedial measure. Herein, the plaintiffs have alleged a systemwide violation transcending school district boundaries, city limits, and state lines. A violation of that magnitude would indeed require extraordinary remedies, but the remedies *431 to be shaped should not be determined prior to the reception of the evidence upon the allegations made in the complaint. [4] [5] As the Supreme Court observed in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554, 566 (1971):
. . . a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.
Because the complaint alleges an unconstitutional de jure condition of racial segregation of the school districts throughout the metropolitan area, and because “any arrangement, implemented by state officials at any level, which significantly tends to perpetuate a dual school system, in whatever manner is constitutionally impermissible,” Gilmore v. City of Montgomery, 417 U.S. 556, 94 S.Ct. 2416, 41 L.Ed.2d 304 (1974), and because at least part of the relief prayed for in the complaint, if not all, is within the remedial powers of a federal court, the motions to dismiss this action are denied.
II. PERSONAL JURISDICTION OVER THE KANSAS DEFENDANTS
Plaintiffs assert that this Court has personal jurisdiction over the Kansas defendants: the local school districts and the state itself. It is argued that personal jurisdiction is obtained through the utilization of Rule 4(e), Federal Rules of Civil Procedure, which authorizes service upon parties not found within the forum state by incorporating the local state’s process statute. In Missouri, the statute is Mo.Rev.Stat. s 506.5003 and is commonly referred to as the “long arm statute”. Essentially, this statute provides for service of process upon nonresident defendants in causes of action instituted in Missouri which arise from the performance of certain “acts” in Missouri such as transacting business, contracting within the state, or committing tortious acts within the state. The plaintiffs originally alleged that the Kansas officials and school districts transacted business in Missouri, made contracts in Missouri, and committed tortious acts in Missouri. However, the issue has been submitted to this Court solely upon the basis of s 506.500(1)(3), “the commission of a tortious act within this state,” because in plaintiffs’ memorandum of March 30, 1978, the plaintiffs indicated their desire to delete the “contractual” and “business” bases of jurisdiction from their allegations. Therefore, the plaintiffs allege that the Kansas defendants’ segregative actions and omissions constitute “the commission of a tortious act within this state.” The Kansas defendants deny in part the alleged conduct and argue that their conduct, if any, does not submit them to the jurisdiction of this Court pursuant to s 506.500(1) (3). These arguments are raised both in Rule 12(b) motions to dismiss and in responsive pleadings to the complaint. [6] [7] On March 6, 1978, this Court ordered the plaintiff school district to supply certain factual data for the purposes of establishing a prima facie showing of jurisdiction. The plaintiff KCMSD objected to the submission of any factual data prior to discovery, but complied with the order and on May 19, 1978, filed its lengthy and extensive *432 “outline of factual data supporting personal jurisdiction over the Kansas defendants.” While the facts adduced in a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction must be viewed in the light most favorable to the party opposing the motion, there must be some evidence upon which a prima facie showing of jurisdiction may be found to exist. For “once jurisdiction has been controverted or denied, (the plaintiff has) the burden of proving such facts.” Aaron Ferer & Sons Co. v. Diversified Metals Corp., 564 F.2d 1211, 1215 (8th Cir. 1977); Block Industries v. DHJ Industries, Inc., 495 F.2d 256 (8th Cir. 1974). The burden upon the plaintiffs is not one to establish conclusively that the facts are as alleged so as to remove the necessity of proof at trial. A prima facie showing is all that is required, so that a denial of a motion to dismiss for failure of personal jurisdiction would not absolve plaintiffs from proving the jurisdictional facts at trial. See, Promotion Network, Inc. v. Da Silva (Vinhos) S.A.R.L., 63 F.R.D. 435 (N.D.Ill.1974); McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct.

780, 80 L.Ed. 1135 (1936).
Although it is true that in some situations the circumstances may lend themselves more readily to a test of jurisdictional facts upon the proof developed after full discovery, see Surpitski v. Hughes-Keenan Corporation, 362 F.2d 254 (1st Cir. 1966), it is the opinion of this Court that this is not such a case. Therefore, the jurisdictional questions are three in number: first, whether a prima facie showing has been made by the plaintiffs asserting that the conduct of the defendants did in fact occur and secondly, if so, whether the Missouri long arm statute authorizes the exercise of jurisdiction over the Kansas defendants; and finally, assuming that the state long arm statute applies, whether this application comports with the due process considerations of the Constitution.
A. Has a prima facie showing been established by the plaintiff?
As stated, the burden upon the plaintiffs is not one to establish conclusively that the facts are as alleged. Rather, a prima facie showing is all that is required when the defendants contest even the occurrence of the events which give rise to the cause of action. Herein, the plaintiffs have met their burden of showing that the facts alleged in the complaint are more than mere conclusionary statements. [8] The actions of the various Kansas defendants which the plaintiffs allege to have taken place concern the existence and maintenance of racially restrictive housing covenants, racially segregated school systems, racial discrimination in hiring black teachers and administrators in the Kansas metropolitan area school districts, and racial segregation in recreational and transportation facilities, all prior to 1954. Subsequent to 1954, the plaintiffs allege a failure by the various Kansas defendants to affirmatively rectify and eliminate segregation in the respective systems over which each Kansas defendant had responsibility. The plaintiffs have quite thoroughly identified by statute number those state statutes requiring or authorizing racial segregation in the Kansas schools and those legal decisions concerning the enforcement of various racially restrictive housing covenants. Therefore, plaintiffs have met their factual burden by their prima facie showing as to these allegations.
[9] [10] Because the defendants denied the existence of any contract between any of the Kansas defendants and the plaintiff school district and denied the transaction of any business in Missouri, a prima facie showing as to these allegations is vital to invoke the Missouri long arm statute. Plaintiffs have made no offer of proof and have failed their burden of establishing a prima facie showing that these defendants contracted in or conducted business in
Missouri. B. Does the Missouri Long Arm Statute authorize the exercise of jurisdiction over the Kansas defendants? If so, are the requirements of due process satisfied?
The Missouri Long Arm Statute specifically enumerates the “acts” which if committed *433 by a defendant subject him to In personam jurisdiction despite his absence or nonresidency. In contrast, some long arm provisions merely provide that a state may exercise jurisdiction on any basis not inconsistent with the Constitution.4 Thus, although it would appear that this Court must initially determine here if the alleged conduct of the Kansas defendants is properly classified as a “tortious act” within the meaning of the statute prior to any determination of constitutional limitation, the Missouri Supreme Court has indicated that a court should proceed directly to the constitutional limitations. The Court en banc in State ex rel. Deere and Company v. Pinnell, 454 S.W.2d 889 (Mo.1970) stated: In concluding our effort to determine the legislative intent of the General Assembly of Missouri, we are convinced that the ultimate objective was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States. 454 S.W.2d at 892. However, in later decisions, it appears that the Missouri Court has returned to the two-step process of determining whether the statute applies before resolving the constitutional issues. In State ex rel. Bank of Gering v. Schoenlaub, 540 S.W.2d 31 (Mo.1976) the Missouri plaintiff sought recovery from the relator Nebraska bank on the basis that it failed to notify the plaintiff within a reasonable time that the sum of the drafts payable from the account of a cattle buyer with whom the plaintiff had done business were not honored, thus precluding the plaintiff from recovering the cattle he had sold to the buyer. The

Missouri Supreme Court stated clearly that: We have concluded that relator has not transacted any business or made any contract or committed any tortious act within this state. It seems to us that everything relator did concerning these transactions was done in the State of Nebraska . .
We cannot believe that the legislature in enacting Section 506.500 intended that it would apply to the factual situation before us. To do so would mean that a nonresident bank could be sued in Missouri for acts wholly performed in the state of its residence in the usual course of conducting its banking business.
It is our further view that the tenuous contacts which relator had with Missouri were not sufficient to meet the “minimum contacts” requirement necessary to comply with constitutional due process as specified in the cases heretofore discussed. 540 S.W.2d at 35.
After careful consideration of the factors utilized in both cases it is the opinion of this Court that the factors are identical in both determinations: as to the applicability of the statute and the resolution of the constitutional issues. These factors have been repeatedly itemized by the Eighth Circuit to be as follows: (1) the nature and Quality of the contacts with the forum state, (2) the Quantity of the contacts with the forum state, (3) the relation of the cause of action to the contacts, (4) the interest of the forum state in providing a forum for its residents, and (5) the convenience of the parties. Electro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365, 368 (8th Cir. 1969); Aftanase v. Economy Baler Company, 343 F.2d 187, 197 (8th Cir. 1965). Of these, “the first three of the factors listed are of primary concern in deciding whether jurisdiction may reasonably be asserted.” Toro Company v. Ballas Liquidating Company, 572 F.2d 1267 (8th Cir. 1978).
[11] Missouri case law construes the phrase “commission of a tortious act within this state” to include extraterritorial acts which produce actionable consequences in Missouri. Missouri ex rel. Deere & Company v. Pinnell, 454 S.W.2d 889 (Mo. 1970); *434 Missouri ex rel. Apco Oil Corporation v. Turpin, 490 S.W.2d 400 (Mo.App.1973). Thus, as in the classic example in the American Law Institute’s Restatement (Second) of Conflicts of Law s 37(a) (1971),
. . . one who intentionally shoots a bullet into a state is as subject to the judicial jurisdiction of the state as to causes of action arising from the effects of the shot as if he had actually fired the bullet in the state.
It is the contention of the plaintiffs that the discriminatory actions and omissions of the various Kansas defendants had as their cumulative effect the location of the majority of the black population of the metropolitan area in the plaintiff school district. This impaction of blacks within the plaintiff school district allegedly creates a racially identifiable school district, which forms the basis of this action. Plaintiffs allege a Causal link between the intentional constitutional wrongs committed by the Kansas defendants in Kansas and the racially “isolated and identifiable school district”, violating the plaintiffs’ rights which is the tort occurring in Missouri.5
[12] This causal link can be discussed in both traditional terms of tort-law and in the due process terminology of International Shoe.6 That is, the cause-effect nexus which Prosser calls “proximate cause” utilizes the same concepts as the “minimum contacts” terminology of the due process considerations. Prosser defines “proximate cause” as “the limitation which the courts have placed upon the actor’s responsibility for the consequences of his conduct.” For:
In a philosophical sense, the consequences of an act go forward to eternity, and the causes of an event go back to the discovery of America and beyond. (But) Legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Prosser, Law of Torts, s 41 (1971). Taking each and every allegation of the plaintiffs as true in regard to the acts and omissions of the Kansas defendants, as a matter of law these actions are not within the purview of the Missouri long arm statute as interpreted in State ex rel. Bank of Gering, supra, 540 S.W.2d 31. The discrimination in housing and education, in recreational and transportation systems, occurred entirely within the state of Kansas. The alleged failure to affirmatively rectify and eliminate the last vestiges of decades of discrimination occurred totally within the state of Kansas, for none of the Kansas defendants’ authority extends beyond the territorial boundaries of Kansas. The immediate victims of the unconstitutional behavior by the Kansas tortfeasors were not the plaintiffs in this suit, but were unidentified blacks who allegedly located in the plaintiff school district because of the acts of the Kansas defendants. The children of these persons now attend the schools in the plaintiff district which is predominately black and surrounded by predominately white school districts in the Kansas and Missouri suburbs. The plaintiffs may very well be able to trace through a myriad of factual data and occurrences to attribute the racial concentration of blacks in the Kansas City Missouri School District in whole or in part to the actions of these defendants in the past sixty

years. However, as in Bank of Gering, supra, where the draft was directly and factually traceable to a Missouri bank in its processing, this causation in fact does not establish legal proximate cause required by the phrase “commission of a tortious act within this state.”
Furthermore, even if the statute were applicable as intended by the Missouri legislature, *435 this application would offend the due process considerations of the Constitution. In making this determination, the Court recognizes that the minimum contacts test is “not susceptible of mechanical application; rather, the facts of each case must be weighed to determine whether the requisite ‘affiliating circumstances’ are present.” Kulko v. California Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). [13] The facts of this case lead to the conclusion that the contacts of the Kansas defendants with Missouri are of insufficient quantity and quality to render this application of the long arm statute compatible with traditional notions of due process. The Kansas defendants did not avail themselves of any privileges afforded by the forum state. The plaintiffs do not allege in their complaint nor in their exhaustive briefs that the discriminatory acts throughout this century were performed with an express intent to render the Kansas City Missouri School District racially identifiable and isolated. Although not a required element, a lack of express intent dictates a greater quantum of affiliating contacts with the forum. See Hutson v. Fehr Brothers, 584 F.2d 833 (8th Cir. 1978). Furthermore, assuming plaintiffs’ allegations as true that people of the minority race settled in Kansas City, Missouri, in whole or in part due to the racial climate on the Kansas side of the state line, those actions are not legally related to the cause of action of this litigation. This action seeks to rectify an unconstitutional condition of education, and does not seek to redress by way of class action the collective harm experienced for sixty years by blacks in Kansas City, Missouri. “In personam jurisdiction simply cannot rest on such a frail foundation” as this tenuous causal link. Hutson, supra.
In concluding its latest decision on long arm statutes, the Supreme Court stated in Kulko, supra, that the California courts: failed to heed our admonition that “the flexible standard of International Shoe ” does not “herald the eventual demise of all restrictions on the personal jurisdiction of state courts.” . . . In McGee v. International Life Insurance Co., supra, we commented on the extension of in personam jurisdiction under evolving standards of due process, explaining that this trend was in large part “attributable to the . . . increasing nationalization of commerce . . . (accompanied by) modern transportation and communication (that) have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.” . . . But the mere act of sending a child to California to live with her mother is not a commercial act and connotes no intent to obtain nor expectancy of receiving a corresponding benefit in the State that would make fair the assertion of that State’s judicial jurisdiction. 436 U.S. at 101, 98 S.Ct. at 1702, 56 L.Ed.2d at 147.
These restrictions on personal jurisdiction are still vital and exacting. Herein, it may seem anachronistic to deny the application of a state’s long arm statute to obtain jurisdiction over defendants who are not a continent away but only a few miles from this Courthouse. It may be true that in the future these restrictions on personal jurisdiction may fall. Nevertheless, this Court must avoid “embracing the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant.” Spector Motor Service v. Walsh, 139 F.2d 809 (2nd Cir. 1944).
III. SERVICE OF PROCESS UNDER RULE 4(f)
In the alternative, plaintiffs argue that if the long arm statute is inapplicable to obtain In personam jurisdiction over the Kansas defendants, then those defendants are “persons needed for a just adjudication” under Rule 19, Fed.R.Civ.Pro., and may be joined with the Missouri defendants as necessary parties under Rule 4(f). Plaintiffs’ error lies in its contention that Rule 4(f) “offers an alternative source of jurisdiction” to assert jurisdiction over the Kansas defendants. *436 [14] The plain language of Rule 4(f) indicates that the 100 mile bulge provision is applicable only in conjunction with Rules 14 and 19. The 100 mile territorial extension has no affect upon the range of service upon Original parties. In conjunction with Rule 19, the second sentence of Rule 4(f) clearly contemplates “Additional parties to a Pending action” indicating that Rule 4(f) is not to be utilized to obtain service of process upon original parties. See Roscoe-Ajax Construction Co. v. Columbia Acoustics & Fireproofing Co., 39 F.R.D. 608 (S.D.N.Y.1966); White v. Diamond, 390 F.Supp. 867 (D.Md. 1974).
There are those cases which propose that Rule 4(f) establishes personal jurisdiction over a third party properly served within

the 100 mile bulge. That is, a third party may be amenable to federal process in a state other than the forum state but within the 100 mile area if the party served has sufficient contacts with the “bulge” area. These cases, as distinguished from the view in Karlsen v. Hanff, 278 F.Supp. 865 (S.D.N.Y.1967) which held that 4(f) deals only with service and does not affect amenability to suit, stand for the proposition that the clear thrust of 4(f) was indeed amenability to suit. See Pierce v. Globemaster Baltimore, Inc., 49 F.R.D. 63 (D.C.Md.1969); Coleman v. American Export Isbrandtsen Lines, Inc., 405 F.2d 250 (2nd Cir. 1968). Nevertheless, these cases still remain in agreement with the more traditional decisions, to which this Court adheres, that “Rule 4(f) has no effect, by its own terms, on service upon the original parties.” Pierce v. Globemaster, supra, 49 F.R.D. at 67. [15] Plaintiffs argue that there Are additional parties present, namely the Missouri defendants, and therefore the Kansas defendants are “additional parties”, if only the Court will make the determination that the Kansas defendants are Rule 19 parties. This determination will not be made at this time. This may appear hypertechnical, but, to allow plaintiffs to utilize a shotgun approach of naming numerous defendants under alternative theories of personal jurisdiction either long arm or 4(f) via Rule 19 would subvert the orderly procedure necessary for the conduct of any litigation. Rule 19 was never intended to be a plaintiff’s weapon to gain personal jurisdiction over original parties.
Aside from this very practical consideration are the legal dictates of Rule 19 itself. The Court, despite the extensive briefs of the parties upon the various motions, does not possess at this early stage in the litigation, the requisite information to judicially determine the factors set forth in Rule 19(a) and (b). Currently, the plaintiffs have filed a complaint and the defendants have filed their motions to dismiss.7 At this stage of the litigation, the only certainty is that this is a desegregation suit to rectify the alleged unconstitutional condition experienced by the plaintiff students. Undue emphasis has been placed upon the remedy prayed for in the complaint.
As stated in Milliken I and II, supra, the remedy will be shaped by the magnitude of the violation found. As the litigation progresses through discovery and evidence is uncovered and presented to the Court in conjunction with appropriate motions, it may very well become apparent that the Kansas defendants are indispensably necessary under Rule 19. However, at this early stage, it would appear that they would be merely proper parties if they were susceptible to in personam jurisdiction.
Unfortunately, classic desegregation cases are measured in years and not months. Although this Court promises to expedite this litigation, the actual evidentiary phases of the litigation will proceed at such a pace as to allow any and all persons who are not presently parties to the action to intervene and to allow for a judicial determination as to which parties should be brought into the action without prejudice to those temporarily absent. The Court notes that in *437 United States v. Board of School Commissioners, Indianapolis, Indiana, 332 F.Supp. 655 (S.D.Ind.1971), and in Milliken I, the numerous additional parties were joined well after the litigation’s inception after growing evidence revealed the magnitude of the unconstitutional violation. Any immediate determination herein would be premature as to whom should be joined in this action in addition to the numerous Missouri defendants for the purposes of determining the remedy.
IV. STANDING
The defendants have raised the issue of standing by way of motions to dismiss and several defendants have raised it by way of answer. Inquiry into this issue is dictated:
Because it is jurisdictional in nature and Constitutional in origin, (and standing) it is a “threshold requirement” which must be satisfied before the federal court can take cognizance of any claim. Evans v. Lynn, 537 F.2d 571, 590 (2nd Cir. 1975).
[16] For purposes of ruling upon a motion to dismiss for lack of standing, the material allegations of the complaint must be construed in favor of the plaintiff.
It is not within the province of the Court to decide the truth of the factual allegations of the complaint in its determination that the complaint is “something more than an ingenious academic exercise in the conceivable.” United States v. Scrap, 412 U.S. 669, 688, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973).
In determining the question of standing, this Court profits from several recent decisions which shed light upon this concept.

In Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343, 354 (1975), the Supreme Court extensively reexamined the requirements of standing and stated that a determination of standing involves an inquiry of both “constitutional limits on federal court jurisdiction and prudential limits on its exercise.”
Whereas the constitutional Requirements focus upon the existence of a case or controversy, the prudential Limitations focus upon the identity of the party-plaintiffs. That is, it is a question of whether the plaintiffs are “proper proponents of the particular legal rights on which they base their suit.” Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826, 832 (1976), Regents of Univ. of Minn. v. National Collegiate Athletic Association, 560 F.2d 352 (8th Cir. 1977). [17] From a reading of Warth and the body of case law upon which that decision is founded, it can be stated that the constitutional requirements are three in number: First, the plaintiffs must suffer some threatened or actual injury resulting from the allegedly illegal action, thus giving to the plaintiffs a “personal stake in the outcome”. Secondly, the asserted injury must be the consequence of the defendants’ actions; and, finally, the prospective relief sought must have the ability to remove the harm.
[18] [19] [20] Defendants attack the standing of all the plaintiffs treating them as “one entity for all intents and purposes” because of the identity, privity and similar purpose of each plaintiff. (consolidated brief of Mo. School Districts, p. 10, n. 2). Defendants’ treatment of all the plaintiffs as one entity for the purposes of standing is erroneous. In an action for monetary damages, each and every plaintiff must have standing to reap the benefits of judgment against the defendant. In an equity proceeding seeking declaratory and injunctive relief, such as the instant litigation, it is customary for courts to cease their inquiry once a proper plaintiff has been identified which satisfies the “case or controversy” requirements. Nevertheless, an individual inquiry must be made. See Arlington Heights v. Metro Housing Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450, n.9 (1977). Therefore, this Court will examine the individual plaintiffs to determine if the constitutional requirements of standing are met, and if so, whether any prudential limitations exist which warrant a dismissal for lack of standing.
A. Plaintiff Kansas City Missouri School District (KCMSD)
[21] [22] First, is there “injury in fact”? Plaintiff School District alleges and argues *438 that its identifiable “injury in fact” is the reduction of the taxing potential and tax base within its boundaries as a consequence of defendant’s segregative actions and omissions. This injury allegedly results from the white flight from Kansas City proper into the suburban communities throughout the metropolitan area. This white flight allegedly impacts the plaintiff school district with a higher percentage of disadvantaged minority race students which, in turn, results in increased operating expenses on a “per pupil basis as the disadvantaged children are in greater need of individual attention, compensating education, counseling and other educational services.” Therefore, although the defendants’ alleged segregative actions are asserted to be unconstitutional and illegal because they violate the equal protection rights of students within the district, plaintiff district maintains that it is also economically injured. (P 37, p. 15, plaintiff’s complaint). These economic injuries constitute “injury in fact” sufficient to meet the first constitutional requirement. Defendants quote at length from the taxpayers’ suits, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) and its progeny, presumably for the proposition that the interests asserted by plaintiffs are “minute and indeterminable”. Yet, plaintiffs correctly reply that no plaintiff has asserted status as a taxpayer as a basis for standing. No minimum monetary amount is required to demonstrate injury in fact. All that is necessitated is concrete injury, economic or otherwise, without examination of the quantum. “The court is not to consider the weight or significance of the alleged injury, only whether it exists.” Coalition for the Environment v. Volpe, 504 F.2d 156, 168 (8th Cir. 1974). Thus, plaintiff KCMSD, by and through its superintendent and Board of Education, successfully complies with the first constitutional requirement.
[23] [24] Secondly, is the asserted injury a consequence of the defendants’ actions? This constitutional criterion does not require absolute certainty or proven fact, for to do so would transform an inquiry of standing into a determination of the merits. Rather, the concrete injury must be reasonably capable of being traced to the actions of the defendants. Herein, plaintiffs have alleged that the harm asserted is the foreseeable consequence of the defendants’ actions or omissions. That is, the defendants’ illegal activities have caused segregation, which in turn gives rise to white flight and a reduction of plaintiff districts’ tax base, and racially impacts the KCMSD’s increasing educational costs. This allegation although too tenuous to support in personam jurisdiction over the Kansas defendants is constitutionally sufficient to “support an actionable causal relationship between” the defendants’ actions and plaintiffs’ injuries, at least as to the Missouri defendants. Warth v. Seldin, supra, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d at 359.

Finally, will the prospective relief which is sought have the ability to alleviate the alleged injury? This inquiry is not as readily answered in the affirmative as are the previous constitutional requirements. The plaintiffs seek both declaratory and injunctive relief, praying most notably for a court order requiring the defendants to submit a plan for the inter-district assignment of students throughout the metropolitan area.
Plaintiff KCMSD is asking this Court to recognize that the allegedly illegal acts of the defendants have as their ultimate effect the economic injury to the KCMSD. This is a logical and legal exercise which the Court can readily perform. However, to retrace the steps upward on the logical ladder causes this Court to hesitate. It is distinctly possible that the rights of the student-plaintiffs may be vindicated and their injuries redressed Without alleviating the financial injury asserted by the plaintiff school district. As stated, this third question causes this Court to hesitate without deciding the issue, for assuming that this third constitutional requirement is satisfied, the prudential limitations raise related insurmountable obstacles.
The Prudential limitations placed on standing have been established to insure that the plaintiff is not only an aggrieved *439 party but also an Effective advocate of the issues. To this end the Supreme Court has stated:
. . . even when the plaintiff has alleged injury sufficient to meet the “case or controversy” requirement, this Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties. (citations omitted) Warth v. Seldin, supra, 422 U.S. at 499, 95 S.Ct. at 2205, 45 L.Ed. at 355.
Without such limitations on the exercise of judicial power, the courts would be asked to decide abstract questions of wide public significance even though other plaintiffs may be more competent to litigate the issues. Furthermore, even if the issues are not abstract but are specifically concrete, these limitations are imposed because “assertion of third parties’ rights would come with ‘greater cogency’ from the third parties themselves.” Singleton v. Wulff, 428 U.S. 106, 114, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826, 833 (1976). [25] Plaintiff KCMSD maintains that Brewer v. Hoxie School District No. 46, 238 F.2d 91 (8th Cir. 1956) together with Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir. 1974) cert. denied 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 236 (1974) stand for the proposition that a school district and its board members have standing to challenge any action which violates the 14th Amendment rights of students of that district. A reading of these two cases reveals that the decisions are consistent with traditional Jus tertii doctrine.8 Generally, a party lacks standing to assert the rights of a third person. This rule, as with all general rules, prevails unless one of the exceptions is applicable. The following factors will often warrant abandonment of the rule:
(1) the existence of some close, special “relationship” between the litigant and the third party, and (2) the challenged action of the defendants adversely affects that relationship, and
(3) the third party may be unable to effectively assert his own rights.
See, Pierce v. Society of Sisters of Holy Names, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Warth v. Seldin, supra, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Singleton v. Wulff, supra, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Arlington Heights v. Metropolitan Housing Dev. Corp., supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).
Because the KCMSD does not assert that the students are unable to effectively assert their own rights, only the first two factors are to be examined: whether there exists a special close relationship and if so whether that relationship is adversely affected by the defendants’ actions.
First, the Court perceives no special and close relationship between the KCMSD and its students in light of Singleton v. Wulff, supra, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826, and Planned Parenthood v. Citizens for Community Action, 558 F.2d 861, n. 3 at 865 (8th Cir. 1977). The keystone of these decisions is the concept that the enjoyment of the third party’s right is “inextricably bound up with the activity the litigant wishes to pursue,” Singleton v. Wulff, supra, 428 U.S. at 114, 96 S.Ct. at 2874, 49 L.Ed.2d at 833 and that the relationship is such that the litigant is as fully effective a proponent of the right as the third party.

The Brewer decision was superficially re-examined in Regents of Univ. of Minnesota v. National Collegiate Athletic Association, 560 F.2d 352 (8th Cir. 1977). Therein, the *440 Regents were directed by the defendant NCAA to declare certain student athletes ineligible from participation in intercollegiate activities for allegedly selling season athletic tickets at premium prices in contravention of NCAA rules. The Court accepted plaintiffs’ standing on the grounds that the Regents had a constitutional duty to afford the students minimum due process and that the defendant NCAA interfered with the performance of that duty by insisting that the plaintiffs take action inconsistent with that duty. Thus the plaintiffs were found to have standing. The Court noted that more recent decisions may soon warrant a re-examination of the sweeping language of Brewer.
Herein, it is argued that the KCMSD has an affirmative duty to desegregate its schools and that the actions of the defendants prevent the KCMSD from achieving maximum desegregation. Thus, the KCMSD contends that its interest is sufficiently close to the interests of the students so that it may challenge the defendants’ actions which allegedly interfere with that relationship. [26] [27] The interests of the KCMSD and its students is not sufficiently close nor “inextricably bound”. The KCMSD is most assuredly under a constitutional affirmative duty to eradicate segregation within its schools. However, its duty corresponds to its authority and its authority ceases at its boundaries. Accepting the allegation as true that the KCMSD has achieved internal desegregation within its schools, the KCMSD has fully discharged its duty to its students. Having fully achieved its obligations to its students, it cannot be said that the actions of the defendants are interfering with the course of action which the KCMSD wishes to pursue or that the defendants’ actions adversely affect the relationship between KCMSD and its students. In Brewer, the plaintiff school district’s affirmative duty to desegregate its schools for the constitutional benefit of its students was directly interfered with by the defendant’s tortious actions. In Akron, the plaintiffs had been commanded by action of the State Board of Education to transfer a portion of the plaintiff district to another school district. Such action allegedly would have had the effect of “leading in the direction of segregation”. Therefore:
Such conduct would place the Board and its members and its Superintendent in the position of violating the Fourteenth Amendment to the United States Constitution. It would subject plaintiffs to being defendants in a suit to restrain conduct which they appear to abhor and which they avow to be unconstitutional. 490 F.2d at 1290.
The KCMSD is not in a similar dilemma. It argues that despite its efforts to achieve the maximum degree of desegregation possible within its boundaries, the rights of its students are still being violated by the metropolitan wide segregative condition. Therefore, it contends, it is subject to liability as were the plaintiffs in Akron and Brewer. The situation is legally dissimilar. The position of the KCMSD is rather analogous to a classic impleader situation: having accomplished all that it can to eradicate segregation, the evil remains thus exposing KCMSD to suit by its students; however, if sued, it could point the finger of liability to the defendants named herein. This distinction is vitally important and prudentially limits the ability of the KCMSD to litigate the rights of its students.
Finally, other very practical considerations and factors lead to the conclusion that critical prudential restrictions exist warranting the denial of standing to the KCMSD. Of primary concern is the distinct potential for the evidence to uncover acts of discrimination by the plaintiff School District itself. The Court notes the administrative action brought against the KCMSD by HEW and the final decision by the Administrative Law Judge as to the ineligibility of the KCMSD to receive certain federal funds due to a finding of a segregative condition within the KCMSD.9 *441 In addition, in the complaint and the voluminous briefs, references have been made as to certain arrangements whereby black students purportedly were educated by the KCMSD on an exchange basis with some defendants. Without making a finding as to these extraneous facts, the Court merely notes their presence as warning signals of potential conflicts of interest in the future course of this litigation.
Without accepting as binding the findings of fact of the Administrative Law Judge and without determining the truth of the allegation, the Court merely notes that these factors militate against the KCMSD accepting the role as primary advocate of its students’ rights. To be an effective advocate of the issue of metropolitan wide desegregation, that advocate must be willing to vigorously pursue all facets of the evidence, and the plaintiff school district assures the Court that it will. Nevertheless, the potential for conflicting interests between the students seeking to show the Greatest extent of the segregative conditions in the area and the interests of the plaintiff school district which may resist the introduction of incriminating evidence concerning its own past or present actions is a very real and threatening potential.
This litigation must follow the guidelines set forth in Dayton Board of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766,

53 L.Ed.2d 851 (1977). That is, in desegregation suits in localities where mandatory segregation by law has long ceased, the first determination by the trial court must be as to the intent of the defendants concerning the alleged segregative actions. Secondly, if constitutional violations are found, it must be determined “how much incremental segregative effect (the) violations had on the racial distribution of the . . . school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations.” Finally, the remedy must be designed to redress that difference. Dayton, supra, 433 U.S. at 420, 97 S.Ct. at 2775, 53 L.Ed.2d at 863. To perform this threefold task, the Court must be presented with all appropriate and relevant evidence and cannot be shielded from incriminating evidence of past (or even present) discriminatory actions of the KCMSD.
Of secondary importance are the other factors which prudentially warrant a finding of lack of standing. Among these are the possibility that the economic injury to the KCMSD may be relieved by alternative financing methods for school districts. Thus, if the economic difficulties of the KCMSD are alleviated, will the KCMSD continue to zealously argue for the rights of the aggrieved students? Will the litigation be abandoned in midstream due to disgruntled taxpayers bringing pressure upon the elected school officials? Will future board members possess the same views as the present members in this litigation which will be measured in years due to the almost certainty of frequent appeals? [28] [29] Thirdly, as stated in the dissent in Akron, it is inadvisable for the federal courts to “get involved with disputes between state political agencies where plain and adequate remedies for their resolution are provided under state law.” Judge Pratt dissenting in Akron, 490 F.2d at 1299. This litigation is essentially a suit brought by the KCMSD against its superior state agency and the state of Missouri itself, with sister districts named as co-defendants. The injury of the plaintiffs is basically that the segregative condition in the metropolitan area has precipitated an undue financial burden upon the KCMSD. “Controversies *442 and disputes between state political agencies should properly be resolved in the state courts” even when those disputes are framed as desegregation suits on behalf of aggrieved students. Judge Pratt’s analysis of Triplett v. Tiemann, 302 F.Supp. 1239 (D.Neb.1969) and his statement that the Akron School Board had “no standing power or authority to sue for alleged constitutional violation of the rights of other persons” create grave doubts as to the prudence of allowing the KCMSD to litigate the rights of its students.
These very grave concerns lead to the conclusion that even if the KCMSD could satisfy the constitutional requirements of standing, the prudential limitations expressed in the doctrine of jus tertii lead to the conclusion that the KCMSD is not the correct nor effective advocate of its students’ rights. [30] Additionally, because the KCMSD lacks independent standing due to the numerous prudential limitations dictating that the issues should not be litigated by that plaintiff, the KCMSD should be dismissed as a party plaintiff and realigned as a party defendant. Ordinarily, the presence of the co-plaintiff-students would redeem the lack of the KCMSD’s lack of standing, see, Arlington Heights v. Metro Housing Corp., supra, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d at 494, n. 9. Nevertheless, because the potential for conflict of interest between the KCMSD and the student plaintiffs is so severe, a dismissal of the party lacking standing is necessitated. Calvin v. Conlisk, 520 F.2d 1, 11 (7th Cir. 1975). A determination of the incremental segregative effects of the violations of the defendants under Dayton cannot be accurately made without the presence of the KCMSD as a party defendant. Because of the KCMSD’s relationship with the defendant State of Missouri and the defendant Missouri State Board of Education, any remedy involving the restructuring of districts would necessarily entangle the KCMSD as well. Other outlying districts may or may not be needed to be joined, as discussed more fully herein, but it is elementary that the inquiry must begin with the students’ own district. For these reasons, the KCMSD must be joined as a party defendant under Rule 19(a) and Rule 21.
B. The plaintiff-students’ standing
[31] It can be accurately stated without discussion that the plaintiff-students meet the constitutional requirements of standing to litigate their constitutional rights. No prudential limitations appear. Nevertheless, the Court notes a conflict of interest as a result of the addition of the KCMSD as a party defendant. The parent-next friends of the plaintiff-students cannot straddle both sides of the fence. As members of the Board of Education of the Kansas City Missouri School District, they must necessarily be party defendants in their official capacities. Yet as next friends to the plaintiff-students, an insurmountable conflict arises. Therefore, the Court perceives two alternatives: either a substitution of next friends or resignation and disaffiliation from the KCMSD in any capacity. Furthermore, separate legal representation must be obtained by the plaintiffstudents who are now represented by the legal counsel for the KCMSD. Once these measures are achieved, the parties will be properly aligned and the case in the correct

POSTURE TO BEGIN DISCOVERY. V. JOINDER OF PERSONS NEEDED FOR A JUST ADJUDICATION; MOTION TO MAKE MORE DEFINITE
In the alternative to their motions to dismiss the plaintiffs’ complaint, the Missouri defendants argue that numerous Rule 19 parties need to be joined and that the complaint is so vague as to make a responsive pleading difficult if not impossible. [32] [33] In regard to the absent possible Rule 19 parties, the defendants suggest that because the various city governments in the metro area would have a very great interest in the relief prayed for that they should be joined as parties to this action. Other missing potential parties are suggested to be the remaining school districts in the geographical region which were not named as defendants, *443 water districts, fire districts and sewer districts. Defendants suggest that unless these unnamed defendants who have a vital interest in the shaping of any relief are named to the action by the plaintiffs, that the action should be dismissed. Defendants place the sole burden on the plaintiffs apparently without recognizing that they as defendants may move to join additional defendants or that the Court itself may join additional parties under Rules 19 and 21. Failure by the plaintiffs to name possible Rule 19 parties in the original complaint does not render the complaint defective warranting dismissal. Because the defendants assert the absence of certain possible defendants as grounds for objecting to the complaint rather than as a motion to join additional parties, the motion to dismiss the complaint for the alleged failure to name as original parties additional possible defendants is denied. Ample opportunity will be available for the plaintiffs to amend their complaint if necessary or for a more thoughtful briefing and consideration of the issue of joinder of absent possible parties.
[34] In the alternative, the Missouri defendants have moved for a more definite statement arguing that the complaint is so vague as to make a responsive pleading difficult if not impossible. It is true that under Rule 8, only a short and plain statement of the claim is required as opposed to a statement of all of the facts upon which the claim is founded. This “notice” pleading:
is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80, 85 (1957) (emphasis added)
The “pretrial procedures” mentioned in the above quote are footnoted by the Supreme Court to include the motion for a more definite statement. However, in practice, the motion is infrequently granted because by its own terms, it is not proper unless the pleading is “so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading.” It should not be granted merely to require evidentiary detail normally the subject of discovery. 2A Moore’s Federal Practice, P 12.18, p. 2396.
[35] In Count III of the complaint, the Missouri school districts are alleged to have violated plaintiffs’ constitutional rights by intentionally segregating students on the basis of race and by maintaining school segregation in the metropolitan area by (1) participating in the operation of the state mandated segregated school system before 1954; (2) transferring students across district lines for purposes of segregation; (3) engaging in discriminatory employment practices which discourage minority race residence and attendance within the various defendant districts; (4) obstructing school district boundary line changes which would have reduced racial segregation; and (5) failing to fulfill their constitutional duties to dismantle the previous state dual system of schools and to eliminate the remaining vestiges of their previously discriminatory actions. It would appear that responsive pleadings in the form of denials or admissions can be made to the allegations which are sufficiently specific in Count III as to appraise the named defendants of the nature of the claims against them. The motion is accordingly denied.
VI. FEDERAL DEFENDANTS

[36] The federal defendants (HUD, HEW, DOT) have jointly moved for dismissal of the complaint as against them on the grounds that the plaintiffs lack standing to challenge the actions of HUD and DOT in that the plaintiffs are not “beneficiaries” of the various programs which the plaintiffs assert have been administered in a discriminatory manner. As against HEW, however, the plaintiffs would have standing concerning the HEW assisted school programs, but the defendants assert that the plaintiff KCMSD has not exhausted its administrative remedies. Because the KCMSD has been realigned as a defendant, *444 this later argument is mooted. The briefs of the federal defendants were naturally slanted towards the KCMSD but it is presumed that the term “plaintiffs” as used in the brief included the plaintiff students.
[37] It is true that plaintiffs are not the beneficiaries of the various programs administered by the federal defendants. However, the standing of the plaintiff students to assert the alleged violations of their constitutional rights is not dependent upon whether or not the plaintiffs were the direct recipients of the housing or transportation systems. It is alleged that these defendants have violated the plaintiffs’ rights, e. g. that in relocating persons in the path of federal highways, the relocation was administered in such a discriminatory manner as to segregate the schools in the area. The students undoubtedly possess standing to assert these claims.
The federal defendants have also moved in the alternative for a more definite statement. Unlike the allegations against the Missouri state defendants, the Missouri school districts, and HEW whose actions were in the field of education, the actions of HUD and DOT are unrelated to education but are alleged to have a segregative effect on education. [38] The allegations against HUD appear to be sufficiently specific to enable HUD to form a responsive pleading thereto. It alleges actions which had as their intent and result the promotion of residential segregation which in turn increased racial isolation and composition of the KCMSD and caused the plaintiffs constitutional harm. The specific acts are set forth in Count VIII, P 71 and a responsive pleading in the form of a denial or admission can be made from these allegations.
[39] The counts against HEW and DOT are somewhat more vague and conclusionary. However, when read in conjunction with the factual allegations preceding the individual counts, the defendants should be able to form a responsive pleading thereto. For instance even though Count VII which alleges that DOT in the construction of highways “relocated, or permitted recipients of federal aid to relocate” persons in a manner which promoted residential segregation does not identify the specific highway projects in the vast metro area, these facts can be readily uncovered by discovery. So too, the specific “actions” of HEW forming the pattern of ignoring “the necessity and practicality of desegregation within the metropolitan area” alleged in Count VI may be determined with greater specificity during discovery. For these reasons, the joint motion of the federal defendants for a more definite statement is denied.
VII. REMAINING MOTIONS
Also placed before this Court are the motions for dismissal raising the issues of laches and unclean hands and failure of the KCMSD to exhaust administrative remedies. These grounds for dismissal are mooted by the Court’s finding that the KCMSD lacks standing to assert the claims of its students in this action. However, these grounds would not merit dismissal absent the motion to dismiss the KCMSD due to lack of standing. Furthermore, the defendants questioned the KCMSD’s legal capacity to sue under a statutory technicality in that the revised Missouri statute deleted the phrase “may sue and be sued”. Mo.Rev.Stat. s 162.311. When the statute pertaining to six-director school districts (and urban districts to which the sixdirector statutes apply if not in conflict with specific statutes relating to urban districts) was revised, the phrase was deleted although the legislature did not delete the phrase from other statutes dealing with other types of school districts. It cannot be assumed that only some districts have legal capacity to sue and be sued whereas others do not. [40] [41] As corporate bodies, certain implied powers are inherently possessed to effectuate the expressly delegated powers. See Harrison v. Hartford Fire Insurance Co., 55 F.Supp. 241, 242 (W.D.Mo.1944). The KCMSD had legal capacity to institute this suit, and now having been realigned with the other school districts, has legal capacity to be sued.
*445 [42] Finally, the motion to dismiss the individual school district superintendents is denied. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) clearly established the liability of local officers of state entities. Furthermore, in answer to the objections of those named superintendents who are no longer school officials, the plaintiffs have assured the parties and

the Court that under Rule 25, Fed.R.Civ.Pro., motions for substitutions or amendments to reflect the changes in various personnel will be made periodically.
VIII. CERTIFICATION UNDER 28 U.S.C. s 1292(b)
[43] [44] Ordinarily, a denial of a motion to dismiss a complaint would not be appealable due to the lack of finality. Refrigerated Food Line, Inc. v. Republic Industries, Inc., 449 F.2d 756 (8th Cir. 1971). However, because the denial of the motion rests on a resolution of a determinative question of law as to the scope of federal remedial powers in relation to the cause of action rather than on a question of “pleading etiquette”, certification under s 1292(b) is appropriate. Wright & Miller, Federal Practice and Procedure: Jurisdiction s 3931, p. 177. Furthermore, the portions of this order dismissing the Kansas defendants for lack of in personam jurisdiction and denying the KCMSD standing and realigning it as a party defendant are also certifiable under s 1292(b). See Schnell v. Peter Eckrich & Sons, Inc., 279 F.2d 594 (7th Cir. 1960); Burch v. Goodyear Tire & Rubber Co., 554 F.2d 633 (4th Cir. 1977). Accordingly, it is the opinion of this Court that the following portions of this order involve controlling questions of law as to which there are substantial grounds for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation: (1) the denial of the motion to dismiss the complaint; (2) the dismissal of the Kansas defendants for lack of in personam jurisdiction; (3) the denial of standing to the KCMSD to litigate the constitutional issues of the complaint; and (4) the realignment of the KCMSD as a party defendant.
CONCLUSION
It is the opinion of this Court that this desegregation suit is now in the proper posture to effectively determine the magnitude of the segregative condition alleged, if one exists, and the scope of the remedy to eradicate the unconstitutional condition. The Court stands ready to convene a pre-discovery conference for discussing and establishing the procedures of uncovering and unraveling the necessary historical data required by the language of Dayton, supra. Therefore, for the reasons set forth herein, it is hereby
ORDERED that the motions of the defendants for an order dismissing the plaintiffs’ complaint for failure to state a claim upon which relief can be granted are denied; and it is further
ORDERED that the Kansas defendants, including the State of Kansas, the Governor of Kansas, the State Board of Education of Kansas and its individual members, the Commissioner of Education of the State of Kansas, and the Shawnee Mission, Kansas City, Kansas, Turner, Olathe and Southeast Johnson County School Districts are dismissed from this action on the grounds of lack of personal jurisdiction; and it is further
ORDERED that the plaintiff Kansas City Missouri School District be dismissed as a party plaintiff and rejoined as a party defendant to this action; and it is further
ORDERED that the conflict of interest existing because of the plaintiff-students’ next friends’ membership upon the KCMSD Board of Education, a defendant, be resolved within sixty (60) days from the date of this order; and it is further
ORDERED that the alternative motion of the Missouri defendants for dismissal for failure to join other parties needed for a just adjudication is denied; and it is further
ORDERED that the motion of the Missouri school district defendants to make the plaintiffs’ complaint as against those defendants more definite and certain is denied; and it is further
*446 ORDERED that the motion of the federal defendants to dismiss the complaint is denied, and the motion of the federal defendants to make the plaintiffs’ complaint as against those defendants more definite and certain is denied; and it is further
ORDERED that the motions of the defendants for dismissal on the grounds of laches and unclean hands and failure to exhaust administrative remedies are denied; and it is further

ORDERED that the defendants’ motions to dismiss the complaint on the grounds that the KCMSD lacks legal capacity to sue and be sued are denied; and it is further
ORDERED that the motions to dismiss the individually named superintendents of the various defendant school districts are denied; and it is further
ORDERED that specific portions of this order are certified in accordance with 28 U.S.C. s 1292(b) as more fully set forth in this opinion.

All Citations 460 F.Supp. 421

Footnotes

1

Originally assigned to the Honorable J. W. Oliver, Chief Judge of this District, the case was transferred to this

division for all further proceedings on October 4, 1977.

2

The Missouri and federal defendants responded by Rule 12(b) motions whereas the Kansas defendants

responded by way of answer incorporating afﬁrmative defenses and praying for dismissal on many of the same

grounds and also by way of Rule 12(b) motions.

3

The statute reads in full:

506.500 Actions in which outstate service is authorized.

1. Any person or ﬁrm, whether or not a citizen or resident of this state, or any corporation, who in person or

through an agent does any of the acts enumerated in this section, thereby submits such person, ﬁrm, or

corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any

cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state; (2) The making of any contract within this state; (3) The

commission of a tortious act within this state; (4) The ownership, use, or possession of any real estate situated in

this state; (5) The contracting to insure any person, property or risk located within this state at the time of

contracting.

2. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an

action in which jurisdiction over him is based upon this section.

4

Section 410.10 of the California Code of Civil Procedure provides:

“A court of this State may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of

the United States.”

5

Although constitutional violations are not always torts, they may be “tortious” or “tort-like” in nature. State action

causing injury to a person’s constitutional rights is receptive to tort law terminology and concepts. Thus, many of

the civil rights statutes create tort-like liability, e. g. 42 U.S.C. s 1983. The Supreme Court has stated s 1983

“should be read against the background of tort liability.” Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5

L.Ed.2d 492, 505 (1961).

6

International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).

7

As noted earlier, the Kansas defendants, owing to a difference in practice in that federal district, have answered

as well as ﬁled Rule 12 motions.

8

There is a subtle distinction between Jus tertii (asserting a third person’s rights) and an association suing on

behalf of its members. See Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53

L.Ed.2d 383 (1977). Regardless, a school district is not as a matter of law an association of members as

contemplated by the decision and guidelines set forth in Hunt.

9

A copy of that decision dated December 22, 1976 was ﬁled by the federal defendants and forms a part of the

record of this action. On page 76, Rollie D. Thedford, Administrative Law Judge made the following conclusions of

law:

2. In the operation of the schools under its control, the District has created and maintained intentional segregation

of the students thereby denying minority students equal protection of the laws guaranteed by the Fourteenth

7

As noted earlier, the Kansas defendants, owing to a difference in practice in that federal district, have answered

as well as ﬁled Rule 12 motions.

8

There is a subtle distinction between Jus tertii (asserting a third person’s rights) and an association suing on

behalf of its members. See Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S.Ct. 2434, 53

L.Ed.2d 383 (1977). Regardless, a school district is not as a matter of law an association of members as

contemplated by the decision and guidelines set forth in Hunt.

9

A copy of that decision dated December 22, 1976 was ﬁled by the federal defendants and forms a part of the

record of this action. On page 76, Rollie D. Thedford, Administrative Law Judge made the following conclusions of

law:

2. In the operation of the schools under its control, the District has created and maintained intentional segregation

of the students thereby denying minority students equal protection of the laws guaranteed by the Fourteenth

Amendment to the Constitution and equal educational opportunities.

6. The intentional segregative acts and omissions of the District have contributed to the segregated condition of

the schools of the District as they exist today and have perpetuated the former dual system.

.

 
 592 F.2d 493 United States Court of Appeals,
Eighth Circuit.
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI et al., Appellants, v.
The STATE OF MISSOURI et al., Appellees.
No. 78-1904. |
Submitted Feb. 12, 1979. |
Decided Feb. 16, 1979.
Synopsis In a school desegregation suit, the United States District Court for the Western District of Missouri, Russell G. Clark, J., 460 F.Supp. 421, entered judgment which, inter alia, dismissed certain defendants and realigned city school district as a defendant. Appeal was taken, and the Court of Appeals held that: (1) a prior denial of permission to appeal interlocutory orders pursuant to the district court’s certification precluded a later appeal of the same rulings as final orders; (2) the order dismissing fewer than all defendants was not appealable, and (3) where the order realigning the city school district as a defendant was not collateral to the merits of the action but was made because of a potential for conflict of interest and to facilitate a showing of incremental effects of segregation, the order was not appealable.
Appeal dismissed.
Attorneys and Law Firms
*494 James R. Borthwick, Taylor Fields, Kansas City, Mo., and Robert E. Manley, Cincinnati, Ohio, for appellants.
Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, Mo., for Missouri State defendants/appellees, State of Mo. et al.
Eloise E. Davies, Atty., Dept. of Justice, Washington, D. C., for federal appellees.
George E. Feldmiller and Joseph A. Sherman, Jackson & Sherman, P. C., Kansas City, Mo., for North Kansas City, Missouri School Dist., and Dr. R. B. Doolin, appellees.
Jack W. R. Headley, Kansas City, Mo., for appellees, Shawnee Mission Unified School District No. 512 and Arzell Ball, Superintendent.
James H. McLarney, Kansas City, Mo., for appellees, Park Hill School Dist. R-5 and Dr. H. Ray Shipley, Superintendent.
Erle W. Francis, Topeka, Kan., for appellees, Kansas City Bd. of Ed., its individual members and Merle R. Bolton, Com’r of Ed. of Kan.
Julius M. Oswald, Blue Springs, Mo., for appellees, Blue Springs Reorganized School Dist. R-4 and Dr. Gale T. Bartow, Superintendent.
Evin Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, Mo., for appellees, Belton School Dist. and Dr. Arthur Davis, Superintendent thereof; Raymore-Peculiar School Dist. R-2 and Donald Shull, Superintendent.
Tom L. Green, Asst. Atty. Gen., Litigation Div., Topeka, Kan., for appellees, the State of Kan., and for Governor John Carlin.
Before GIBSON, Chief Judge, and HEANEY and STEPHENSON, Circuit Judges.

Opinion
PER CURIAM.
This is the second attempt in this cause to appeal pretrial rulings to this court. We denied by order filed November 2, 1978, a Fed.R.App.P. 5(a) petition for leave to appeal pursuant to the district court’s 28 U.S.C. s 1292(b) certification. A petition for rehearing En banc was also denied, on November 30, 1978. Appellants now attempt to appeal pursuant to 28 U.S.C. s 1291 and Fed.R.App.P. 4(a). We grant appellees’ motion to dismiss this appeal.
*495 This is a school desegregation suit involving school districts located in both the Kansas and Missouri sides of the Kansas City Metropolitan Area. The original plaintiffs were the School District of Kansas City, Missouri, most of its Board of Education members, its School Superintendent, and five minor children who sued by their parents or next friends, all of whom are Kansas City, Missouri, Board of Education members. Defendants included the states of Kansas and Missouri, their respective Boards of Education, certain school districts in each state, and the Secretaries of the United States Departments of HUD, HEW and DOT.
On October 6, 1978, the district court1, 460 F.Supp. 421, entered, Inter alia, the following orders:
(1) denial of defendants’ motions to dismiss the complaint;
(2) dismissal of the Kansas defendants for lack of personal jurisdiction;
(3) dismissal of the Kansas City, Missouri, School District (KCMSD), Board of Education and School Superintendent as plaintiffs and their realignment as defendants because KCMSD lacked standing to litigate the issues; and
(4) resolution of a conflict of interest created because the plaintiff students’ parents and/or next friends, members of the Kansas City, Missouri, Board of Education, were made defendants by ruling number three above.
The opinion makes it clear that number four was to be achieved by separate legal representation for the students and by either replacing the present next friends or by their resignation from the school board.
Judge Clark certified four issues for an immediate appeal under 28 U.S.C. s 1292(b). These were: (1) denial of the motion to dismiss; (2) dismissal of the Kansas defendants; (3) denial of standing to KCMSD to litigate as party plaintiff, and (4) realignment of KCMSD as a defendant. Issues two, three and four were presented in appellants’ petition for leave to appeal, denied by this court on November 2, 1978. Our unpublished order stated:
The applications for leave to take interlocutory appeals filed herein are denied. The court expresses no opinion as to the merits of the various claims of the parties inasmuch as the matter before us is not a final order.
A petition for rehearing En banc was denied on November 30, 1978, the same day on which the present notice of appeal was filed.
The present appeal, brought under 28 U.S.C. s 1291, challenges two of the rulings sought to be appealed in the prior Rule 5(a) petition: the dismissal of the Kansas defendants and the realignment of KCMSD as a defendant. The other two issues raised are closely related to the latter ruling. They are: (1) whether because of the conflict of interest created by that ruling, the plaintiff-students must obtain new counsel; and (2) whether their present next friends must either resign from the Kansas City, Missouri, Board of Education or be replaced in the litigation. [1] The prior denial of permission to appeal these interlocutory orders pursuant to the district court’s section 1292(b) certification precludes a later appeal of the same rulings as final orders under section 1291. Our prior order reveals that the rulings presently being appealed were clearly considered interlocutory or non-final. The Supreme Court recently indicated that the primary vehicle for prompt review of non-final orders is 28 U.S.C. s 1292(b). Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978). In its prior denial of leave to appeal pursuant to the section 1292(b) certification, in effect this court held that it did not find “exceptional circumstances (which) justify a departure from the basic

policy of postponing appellate review until after the entry of a final judgment.” Id. at 2461, Quoting from *496 Fisons Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972). Such a holding clearly precludes the present attempt to appeal the orders.

Not only does the prior order appear to preclude this appeal, but analysis independent of that order demonstrates the orders are indeed non-final and non-appealable, even under the collateral order doctrine: [2] Dismissal of Kansas Defendants : Dismissal of fewer than all the defendants in a multiple party action can only be appealed as a final judgment pursuant to the district court’s express Fed.R.Civ.P. 54(b) finding, C. Wright, A. Miller, E. Cooper, 15 Federal Practice and Procedure s 3914, at 542 (1976); Gaines v. Sunray Oil Co., 539 F.2d 1136, 1140 (8th Cir. 1976), at least when it is not an interlocutory order made reviewable by 28 U.S.C. s 1292. No Rule 54(b) finding was made by the district court, and this court refused a section 1292 appeal. In addition, the district court stated it may prove necessary to rejoin the defendants under Fed.R.Civ.P. 19 as indispensable parties at a later time.
[3] Realignment of KCMSD as a Defendant : The alignment of the parties could be revised at any stage. The order is not collateral to the merits of the action, but was made to facilitate a showing of incremental effects of segregation and for structuring a complete remedy.

(3) Student Plaintiffs’ Independent Legal Representation; Substitution of New Next Friends or Resignation of Present Ones from School Board : These are both so related to number (2) above that they cannot be reviewed without review of the reasoning behind order number two. Realignment of KCMSD was ordered by the district court because of the “severe” potential for conflict of interest between KCMSD and the plaintiff students. The conflict of interest is also the rationale for ordering representation by counsel other than KCMSD’s counsel and removal of next friends who are Kansas City, Missouri, Board of Education members.
Appeal dismissed. We express no opinion as to the merits of the ultimate claims of the parties.

All Citations 592 F.2d 493

Footnotes

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

 
 492 F.Supp. 848 United States District Court, W.D. Missouri, Western Division.
Erica M. BLACK et al., Plaintiffs, v.
STATE OF MISSOURI et al., Defendants.
No. 77-0420-CV-W-1-3. |
June 19, 1980.
Synopsis In school desegregation case, school district defendants sought to disqualify legal firm which had previously represented school district and children who had originally been plaintiffs but were realigned as defendants as well as present counsel for plaintiff school children. The District Court, Russell G. Clark, J., held that: (1) district defendants had standing to raise disqualification issues presented in their motions as interests of public were greatly implicated, and (2) although law firm had previously represented plaintiff school district and children in litigation and subsequently represented the school district as a defendant, where alleged conflict of interest arose as a result of court’s own order realigning original parties, where plaintiff school children originally represented by firm were subsequently dismissed at their own request, and there was no showing that any conceivable confidential information which those plaintiffs might have possessed and transmitted to the law firm was obtained from plaintiffs remaining in the litigation, motion to disqualify law firm would be denied.
Motions denied.
See also, 460 F.Supp. 421, 592 F.2d 493.
Attorneys and Law Firms
*852 Arthur A. Benson, II, Kansas City, Mo., for plaintiffs.
James R. Borthwick, Shirley Ward Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., Robert E. Manley, Cincinnati, Ohio, Taylor Fields, North, Colbert & Fields, Kansas City, Mo., for K.C. School Dist.
Lawrence R. Brown, George E. Feldmiller, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for defendant Missouri School Districts.
Barbara Allen Babcock, Barbara B. O’Malley, Brook Hedge, Attys., Dept. of Justice, Washington, D. C., Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., for federal defendants.
John D. Ashcroft, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, Mo., for Missouri State defendants.
MEMORANDUM AND ORDER
RUSSELL G. CLARK, District Judge.
In a prior memorandum order in this case this Court observed that “(t)his school desegregation action is truly a case of first impression.” School District of Kansas City v. Missouri, 460 F.Supp. 421, 426 (W.D.Mo.1978), appeal dismissed, 592 F.2d 493 (8th Cir. 1979) (footnote omitted). That observation was prompted by the posture of the parties at the inception of this action a school district, accompanied by several school children, bringing suit against other school districts and various state and federal agencies, for the purpose of litigating the right of school children within its borders to a public education free

from discriminatory segregation and the effects of past segregation, as well as its own claims against the various defendants. The Court then determined that the Kansas City Missouri School District (“KCMSD” or the “District”) could not be a fully effective advocate of the school children’s interests because proceedings in this action might eventually reveal that the District itself is one of the parties responsible for the alleged segregative condition within its boundaries. Id. at 437-42. Consequently, the Court realigned the KCMSD as a party-defendant, and in conjunction with that action directed that “separate legal representation must be obtained by the plaintiff-students who are now represented by the legal counsel for the KCMSD.” Id. at 442.
That realignment order has given rise to additional unique issues presented in motions for the disqualification of Arthur A. Benson II, present counsel for the plaintiff school children; the law firm of Blackwell, Sanders, Matheny & Weary (Blackwell-Sanders) and in particular, its members James Borthwick and Shirley Keeler, counsel for the KCMSD throughout the course of this action and former counsel for the school children who were party plaintiffs to this action at the time of the realignment; and Taylor Fields of the law firm of North, Colbert & Fields (“North”) and Robert E. Manley, co-counsel to the Blackwell-Sanders *853 firm. Those motions have been filed by the Missouri school districts (other than the KCMSD), which are defendants in this action (the “district defendants” or the “defendants”); and it appears the theory of the motions is, at least in part, that there has not been compliance with the Court’s directive for “separate legal representation”. All parties affected by the motions the plaintiff school children, the KCMSD and the district defendants have agreed to submit the disqualification questions to the Court on a designated factual record consisting of several stipulations of fact and various numbered exhibits, comprised primarily of past pleadings and correspondence in this action.1 The factual summary which follows is based on that disignated record, and where appropriate the Court will make reference to particular exhibits to substantiate pertinent facts.
I. FACTUAL BACKGROUND
A. Chronology of Events
As the Court has already noted, this action was initiated by the KCMSD as a plaintiff, along with Gregory Scaggs, Helen Elizabeth Scaggs, Keith Jerome Scaggs, Margaret Stark and Catherine Stark, children attending school in the KCMSD. From the point at which the complaint was filed (May 27, 1977) up to the Court’s realignment of the KCMSD (October 6, 1978), Blackwell-Sanders, assisted by Taylor Fields of the North firm, Robert E. Manley, an Ohio attorney, and Dr. Robert S. Freilich, a professor of law at the University of Missouri-Kansas City (UMKC) Law School, represented both the KCMSD and the school children in this action. In this connection, it is noteworthy that Blackwell-Sanders has served as retained counsel to the KCMSD for more than sixty years (Exhibit (Ex) 5). As noted earlier, the Court’s realignment order directed the plaintiff school children to obtain legal representation separate from the KCMSD’s representation. It also provided that the parent next friends of the students, all of whom were officers of the KCMSD, could not continue to act as next friends so long as they were affiliated with the KCMSD; the solution suggested was the substitution of other persons as next friends. See 460 F.Supp. at 442; 592 F.2d at 495. Subsequent to the Court’s issuance of its realignment order, the KCMSD, the plaintiff school children, and various defendants attempted to take interlocutory appeals from the order; the Eighth Circuit refused to hear the appeals under either 28 U.S.C. s 1292(b) or 28 U.S.C. s 1291 and issued its final decision rejecting any appeals from this Court’s order on February 16, 1979. See School District of Kansas City v. Missouri, 592 F.2d 493 (8th Cir. 1979).
At that point in time the KCMSD and the plaintiff-students began to take steps to comply with the Court’s requirements of separate legal representation and substitution of next friends for the plaintiff-students.2 In late February, one of the parent *854 next friends of the plaintiff-students contacted Arthur A. Benson II and requested Benson to act as new counsel for the plaintiff-students in all future proceedings in this suit. (See Ex. 43 at 3; Plaintiffs’ Brief in Response to the Supplemental Brief of the Missouri School District Defendants on the Issue of Disqualification, at 2 (filed Feb. 7, 1980) (hereinafter “Plaintiffs’ Brief of Feb. 7, 1980”)). Benson later had several meetings with the plaintiff-students, their current next friends (parents), and proposed plaintiff-intervenor school children and their proposed parent next friends the result of which was his (Benson’s) agreement to act as counsel for the plaintiff-students and the proposed student-intervenors. (See id. Ex. 95, at 1-3). 3 On March 15, 1979, Benson made his formal entry of appearance as plaintiffs’ counsel (Ex. 7), and also entered the application of Dorothy Hodge Johnson to be appointed as next friend for Margaret Stark and Catherine Stark, two of the plaintiff-students in substitution for their mother Joyce Stark. The application was granted and Ms. Johnson was formally appointed as the next friend of the Stark children on April 10, 1979. (Ex. 14). In the interim, on March 30, 1979, the

remaining plaintiff-students, Gregory, Helen and Keith Scaggs, moved for dismissal from this action on the ground that they no longer resided in the Kansas City area; Joyce Stark moved for an order discharging her as next friend of the Stark children; and Blackwell-Sanders and its co-counsel entered their formal notice of withdrawal as attorneys for the plaintiffstudents. (Ex. 10-12). On April 19, 1979 the Court entered an order dismissing the Scaggs children, granting BlackwellSanders and its co-counsel leave to withdraw as attorneys for plaintiff, and implicitly granting Joyce Stark’s motion to withdraw as next friend of her children. (Ex. 15).4
Subsequently, on May 10, 1979, Benson attempted to reactivate proceedings on the merits by seeking leave to file an amended complaint and to serve upon various defendants (not including the KCMSD) interrogatories exceeding a limitation established by a local rule of this district. (Ex. 16-21). Benson also filed on that date, on behalf of thirty school children, a motion for leave to intervene as plaintiffs. On May 18, 1979, the Court granted the motion for leave to file the first amended complaint, but deferred decision on the other motions to a conference scheduled for May 31, 1979. (Ex. 22). At that conference, Benson appeared for the plaintiffs, accompanied by Professor Freilich, who had been lending some assistance to Benson in previous months (Freilich’s assistance is discussed more fully infra). Benson announced Freilich’s intention to enter a formal appearance as co-counsel for the plaintiff Stark children. (Joint Designation Part VI P 1).
Various decisions at that conference affected the course of future proceedings. The Court indicated concern over Freilich’s proposed representation of plaintiffs suing, among other defendants, the State of Missouri, because of his employment with the UMKC Law School, an entity affiliated with the state. (Ex. 60). Freilich reported that he had already made a request to the Advisory Committee (the “Committee” or “Advisory Committee”) of the Missouri Bar for an opinion on this issue, and had received a favorable informal opinion from the Committee’s chairman. (Ex. 58-59). He also advised the Court that a second “conflict” issue might be inherent in his proposed representation by virtue of the prior representation of the parties before the Court’s realignment order. (Ex. 64). *855 The Court then expressed its desire to await an official ruling of the Committee on the employment-conflict issue; invited from the parties proposals on discovery proceedings; and stated that the stay on discovery, ordered in conjunction with the appeal of the Court’s realignment order, would be continued and that the motion to intervene would be deferred until such time as another intervention motion was filed by fewer proposed intervenors.
During the period in which the parties were filing proposed discovery schedules in response to the Court’s directive at the May 31 conference (Ex. 23-25 & 27), the district defendants requested the Advisory Committee to render an opinion on the propriety of Freilich’s proposed representation and Benson’s ongoing representation of the plaintiffs in view of Freilich’s prior service for the KCMSD during the “joint-plaintiffs” stage of this suit and other incidental factors. (Ex. 61). That request generated an exchange of correspondence between counsel for the KCMSD, plaintiffs, and the district defendants and the Committee. (Ex. 62-77). Other than the filing of motions to dismiss the amended complaint by all the defendants (Ex. 26, 28-31 & 37-38), except the KCMSD (which filed an answer to the amended complaint on July 3, 1979) and the plaintiffs’ response to those motions, the disqualification “debate” remained the center of activity in this case throughout the summer. One additional action was the filing by nine school children, through their attorney Benson, of a new motion to intervene as plaintiffs in this action. (Ex. 36). That motion was later granted by the Court on November 27, 1979. (Ex. 47, at 18-20). During that “debate”, on July 18, 1979, Professor Freilich filed a motion for leave of court to enter his appearance as counsel for plaintiffs (Ex. 33); that motion was, not too surprisingly, opposed by the district defendants who obtained a postponement of a ruling on the motion until the issuance of an opinion by the Advisory Committee. (Ex. 34).
On August 6, 1979, the Committee issued its opinion, which found that both Freilich and Benson would stand in a position of conflict if they represented the plaintiffs, as a result of Freilich’s prior association with the KCMSD. (Ex. 76). Subsequently, Freilich apparently determined that the plaintiffs’ interests would be better served by his withdrawal than by resistance to the disqualification attack of the district defendants, and on August 16, 1979 he filed a notice of withdrawal of his prior motion for leave to enter the case as plaintiffs’ counsel. Benson, however, chose to remain in the action, and consequently, the district defendants filed a motion to disqualify him on August 23, 1979. (Ex. 40). Since then, disputes over discovery on the issues raised by that disqualification motion and the earlier intervention motion, the discovery proceedings themselves, and the exchange of briefs on various legal issues, have preempted any further progress on the merits and have commanded considerable attention from this Court. (See generally Ex. 47).
During this “second round of debate” (i. e. the presentation of the disqualification issues to this Court following an earlier presentation of the same to the Advisory Committee), several significant actions occurred. On November 27, 1979, the Court permitted nine school children to intervene as plaintiffs in this action, pursuant to Fed.R.Civ.P. 24(b), on the basis that all of the intervenors have standing to raise the claims set forth in the amended complaint and that additional plaintiff-students would “assure the continuance of a live controversy over the longevity of this litigation.” Memorandum and Order of

November 27, 1979 (Ex. 47), at 24. On December 4, 1979, the district defendants filed their motion to disqualify the Blackwell-Sanders firm on the basis of its prior representation of the Stark children in this action. (Ex. 48). Several days later on December 7, 1979, the Stark children moved for dismissal from this action pursuant to Fed.R.Civ.P. 41(a)(2), stating their desire to remove any possible conflict of interest with which the Blackwell-Sanders firm might be charged by reason of its earlier representation of *856 them. (Ex. 49). The Court granted that motion and dismissed the Stark children on December 20, 1979, for a reason similar to that stated by the Starks in their motion:
“(T)he requested dismissal may serve to ameliorate any perceptible inconsistency or paradox in the alignment of parties in this case namely, the prosecution of a desegregation action by school children (Margaret and Catherine Stark) against a school district (the KCMSD) which has among its board members a parent of those children (Joyce C. Stark).”
Order of December 20, 1979 (Ex. 51) at 2.
Consequently, in its present posture, this case is being prosecuted by nine school children who are represented by Benson and who have never been represented by Blackwell-Sanders, its co-counsel, or Professor Freilich. (Ex. 56). In connection with this, it should be noted that Benson has never represented the KCMSD. (See Ex. 42 & 52-54).5 While the foregoing recital of events represents a fairly complete chronology of the significant actions in this suit from the date of the Court’s realignment order in October, 1978 to the present, Freilich’s association with the KCMSD during what may be termed the “first chapter” of this action (the stage in which the KCMSD was a plaintiff), and his assistance to Benson in the spring of 1979 merit further discussion.
B. Freilich’s Representation of the KCMSD
Sometime in the summer of 1975, Professor Freilich and Dr. Daniel U. Levine, a professor of education at UMKC, were retained by the KCMSD as consultants, and they began researching the prospects for a lawsuit by the KCMSD against contiguous and suburban school districts and state and federal agencies, for the purpose of creating a “metropolitan” school district. (Joint Designation, Part VI s 3; Ex. 75). That “research” consisted of a review of numerous public records and documents of the KCMSD and, presumably, of other school districts, and legal research and the formulation of legal theories. (Ex. 61, Appendices C, E & G; Ex. 69). Although Freilich never became an attorney of record for the KCMSD, he worked in consultation with the District’s counsel, the Blackwell-Sanders firm, and his background work culminated in the initial complaint filed in this action by the KCMSD in the spring of 1977. (Ex. 75). Consequently, Freilich was credited by the local press as “one of the main architects” of this lawsuit. (Ex. 61, Appendix D).
During the period of time in which he acted as consultant for the KCMSD, Freilich appeared as a witness for the District in an administrative hearing conducted by the Department of Health, Education and Welfare (In the Matter of Kansas City, Missouri School District, Kansas City, Missouri, Docket No. S-92) on the existence vel non of segregative practices within the KCMSD. (Ex. 61, at 3 & Appendix G). His testimony was related to the racial composition of the KCMSD and future projections of the same, efforts by the KCMSD to achieve integration within its boundaries, and causes for the disproportionate percentage of minorities within the KCMSD. (Ex. 61, Appendix G). Freilich was compensated for his efforts and time expended at the hearing by the KCMSD. (Ex. 135, at 1). In carrying out his consultation work, Freilich in his own words, “had numerous meetings with the School District Board and their counsel (the Blackwell-Sanders firm) to discuss legal theories and possible remedies.” (Ex. 69, at 1). While many of those meetings were “public” or “open” meetings, four were “executive session” meetings, *857 which were closed to the public. Two of those closed meetings occurred prior to the institution of this action, while two occurred subsequent to that date, with the last session being held on or about February 9, 1979. At those executive sessions, “this lawsuit was discussed in a variety of ways.” (Joint Designation, Part VI, P 5).
Although the record does not contain explicit evidence on the question of Freilich’s access to confidential documents or information of the KCMSD (primarily as a result of this Court’s discovery rulings, see Order of November 27, 1979 (Ex. 47), at 3-14), it seems unlikely that he ever came in contact with or had access to such matters. For his part, Freilich has disclaimed ever receiving any confidential information at school board meetings, and has stated that he “never interviewed any school district officials, nor . . . investigate(d) any facts or evidence related to their conduct or behavior.” (Ex. 69, at 2). And Freilich’s representations to that effect are credible since, unlike an attorney’s representation of a corporate client in a commercial action or of a defendant in almost any action, the services Freilich performed the preparation of a “plaintiff’s”

desegregation action would not require examination of the plaintiff-client’s confidences, but rather, an investigation into and a review of the defendants’ alleged actions and motives or intent regarding the same. (See Ex. 122, at 5; Ex. 123).
Subsequent to this Court’s issuance of its realignment order in October, 1978, Freilich’s consultation role consisted of reviewing the Court’s order, exploring legal grounds for appeal, and participating in discussions regarding a possible proposal of settlement by the KCMSD (which apparently never went any further than that theoretical level). (Ex. 120-21; Ex. 122, at 2; Ex. 123-124; Ex. 127, at 3; Ex. 128 & 132). The last date on which Freilich performed any consultative or legal services for the KCMSD was February 21, 1979, the date on which he participated in a conference with Dr. Henry Hamann, then secretary of the KCMSD board, and Taylor Fields, co-counsel to the Blackwell-Sanders firm. (Ex. 128 & 132). Freilich, however, did not submit his “final invoice” to the KCMSD board until May 3, 1979 (Ex. 132), and the board approved that invoice on June 7, 1979, which apparently was the date of the next scheduled board meeting. (Ex. 134). The record reflects that Freilich participated in a telephone conference with Taylor Fields and Robert Manley on April 4, 1979, which apparently concerned the previously mentioned draft proposal of settlement. (Ex. 133). Freilich’s participation no doubt was in the nature of an opinion or recollection from his prior service for the KCMSD in response to an inquiry by Fields or Manley, since Freilich did not bill the KCMSD for the time he expended in that phone conference even though his final invoice was not submitted until May 3, 1979, nearly a month later. (Ex. 132). Consequently, the Court does not believe that the April 4 phone conference was indicative of, or constitutes, services rendered to the KCMSD by Freilich beyond February 21, 1979. Contrary to the interpretation of events advanced by the district defendants, the Court thinks it is clear that Freilich’s term of representation of the KCMSD did not extend beyond the February 21 date (on which he last performed any services for the District) to the May 3 date on which he submitted his final invoice to the District.
C. Freilich’s Association With Benson
As the Court noted earlier in this discussion, Benson was brought into this litigation through the solicitation of former next friends in this action, sometime in late February, 1979. After agreeing to represent the plaintiff-students Benson made several phone calls to Blackwell-Sanders attorney James Borthwick for the purpose of securing copies of the original complaint, the Court’s realignment order, and other relevant pleadings, and to discuss an informal exchange of discovery materials. (Ex. 54; Ex. 95, at 1-2; Ex. 129, at 2-3). On March 12, 1979, several days prior to his formal entry of appearance and the filing of an application by Dorothy Hodge Johnson for appointment as next friend of the Starks, *858 Benson sent Borthwick a letter which stated:
“Knowing that your firm has represented my clients in earlier stages of this litigation, I have discussed the potential of a conflict of interest with the next friend and it is our opinion that there is no such conflict of interest. We do not intend, therefore, to raise the issue.
We expect to pursue this litigation vigorously.“
Ex. 96 (emphasis added). While it is not absolutely clear to whom the above highlighted mention of “next friend” refers, Benson most likely was referring to Mrs. Johnson (the new next friend), rather than Joyce Stark (the “outgoing” parent next friend of the Stark children). The letter was written just days before Benson filed Mrs. Johnson’s application for formal appointment as next friend; and the terms Benson used to relate the next friend’s decision to waive any perceptible conflict posed by the Blackwell-Sanders firm’s continuing representation of the KCMSD suggest that the next friend who was making that decision would continue to be in the lawsuit in all future proceedings: “We do not intend . . . to raise the issue.”6 Mrs. Johnson was not formally appointed next friend of the Starks until April 10, 1979. (Ex. 14).
Benson’s first contact with Freilich occurred sometime in late March, 1979 when the two happened to meet at an intermission during a performance of the Kansas City Philharmonic Orchestra. Freilich commented to Benson that he had a long-standing interest in the desegregation theories which had been advanced by the plaintiffs in this action; that he interpreted the Court’s realignment order to grant counsel representing the original plaintiffs the option to re-associate with either the realigned defendant KCMSD or the plaintiff school children; and that he would like to assist the plaintiffs if Benson thought his (Freilich’s) assistance would be of any value, and if the KCMSD raised no objection to his assistance of the plaintiffs. (Ex. 54; Ex. 69, at 3). Benson apparently was interested in Freilich’s offer of assistance, since he telephoned Freilich on March 26, 1979 (Ex. 95, at 5) and dispatched a “speed letter” to Freilich on March 29, 1979 inviting him to a luncheon meeting with Mrs. Johnson, Jack Morgan (a potential fundraiser), and Benson. (See Attachment to Plaintiffs’ Brief of February 7, 1980.) Benson made brief phone calls to Freilich and Johnson on April 2, setting the luncheon date for April 3. The three met on that

date, along with Jack Morgan, and spent two and one-half hours discussing ways of raising funds. (Ex. 95, at 6).
On April 6, Benson and Freilich met for half an hour, and apparently discussed substantive aspects of the plaintiffs’ complaint for the first time. A series of phone calls, meetings and correspondence between the two followed over the next two months, which are documented in Benson’s time records: April 11 phone call, less than two hours; April 19 conference (including Dr. Levine and others), two hours; April 25 conference, 3 hours; May 1 correspondence; May 2 correspondence; May 3 phone call, less than two and one-half hours; May 9 phone call, less than four hours; May 21 correspondence; May 23 phone call, two hours. (Ex. 95 at 7-14 & 17; Ex. 97-99). The record reflects that these meetings and the intervening correspondence either related to fundraising efforts which Benson was attempting to arrange, or to Freilich’s review of proposed pleadings which Benson had prepared, in particular an amended complaint and sets of interrogatories. (Joint Designation, Part VI P 9; Ex. 54 & 97-98). Benson sought Freilich’s review of various pleadings and any suggestions on modifications, because Benson was at that time still engaged in the process of becoming acquainted with the issues and legal theories involved in this case. (Ex. 54). The record reflects, however, *859 that during this period Benson performed the work of drafting the pleadings and meeting with the plaintiffs and proposed intervenors and next friends; he spent much more time performing those tasks than the relatively limited number of hours which he expended in meeting, conferring and corresponding with Freilich. (Ex. 95 at 7-18). Because Freilich’s assistance was that of a “reviewing” consultant and was focused on legal theories, the Court finds no reason to doubt Benson’s statement in his affidavit that he never received from Freilich any confidential information, oral or documentary, of the KCMSD. (Ex. 42).
As the Court noted earlier, Freilich appeared with Benson at a pretrial conference before this Court on May 31, 1979, at which discovery and intervention issues were discussed, along with the issue of conflicts of interest. The two also met to discuss the case prior to attending the conference; both meetings totalled approximately five hours. Subsequent to the May 31 court appearance, Benson and Freilich did not confer, meet or correspond on any substantive issues in the case. During the months of June, July and August, 1979, a series of communications occurred between the two, but all of these communications related to Freilich’s proposed entry of appearance as counsel for plaintiffs and the district defendants’ opposition to the same (i. e., the “disqualification debate” before the Advisory Committee). (Ex. 95, at 19-33; Ex. 101-103). And, as previously noted, Freilich completely withdrew from this case on August 16, 1979.
At no time did Benson ever “employ” Freilich or “associate” with him in any professional partnership or similar business arrangement. And at no time did Benson and Freilich enter into a contractual agreement or understanding concerning this suit and the sharing of legal fees or expenses. They did agree to individually maintain accurate time records for the purpose of submitting the same to the Court in the event that the plaintiffs were successful and the Court were to consider an award of attorneys’ fees. (Ex. 54). At no time during the brief period of Freilich’s assistance to Benson did the KCMSD object to that assistance, although the nature of Freilich’s assistance was known to the District’s attorneys and was apparently discussed in phone conversations. (See Ex. 95, at 5-18; Ex. 69, at 3). While the record suggests that Blackwell-Sanders may have considered the preparation of a formal letter of consent by the KCMSD to Freilich’s assistance to Benson, it appears that no such letter was ever written or sent.7 (See Ex. 69, at 3). The foregoing summary constitutes all the known significant facts, which are pertinent to the disqualification motions.
II. DISQUALIFICATION: THE ETHICAL INQUIRY
[1] [2] A fundamental responsibility of any trial court is the supervision of the attorneys who appear and practice before it. See Cohen v. Hurley, 366 U.S. 117, 123-24, 81 S.Ct. 954, 958-959, 6 L.Ed.2d 156, 162 (1961); Coffelt v. Shell, 577 F.2d 30, 32 (8th Cir. 1978); Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605 (8th Cir. 1977), cert. denied, 436 U.S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978); Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975); Richardson v. Hamilton Int’l Corp., 469 F.2d 1382, 1385 (3d Cir. 1972), cert. denied, 411 U.S. 986, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973). “In supervising all of its officers, the Court has a *860 responsibility to maintain public confidence in the legal profession and, accordingly, may disqualify an attorney not only for actual improper conduct but also for failing to avoid even the appearance of impropriety.” Price v. Admiral Ins. Co., 481 F.Supp. 374, 377 (E.D.Pa.1979) (emphasis in original); see Richardson v. Hamilton Int’l Corp., 469 F.2d at 1385-86. Thus, if it appears that a breach of professional ethics has been committed by an officer of the Court, the Court must carefully scrutinize all relevant circumstances; determine if a breach has in fact occurred; and select an appropriate remedy, which might include disqualification of counsel.
For the lawyer whose practice is largely or exclusively centered in the arena of litigation, there is much significance in one of

William Shakespeare’s classic observations: “All the world’s a stage, and all the men and women merely players; they have their exits and their entrances, and one man in his time plays many parts.” W. SHAKESPEARE, AS YOU LIKE IT, ACT II, sc. vii, 1.138-41 (emphasis added). The advocate-litigator often plays “many parts” because of factors such as “the fluidity of membership in large metropolitan law firms and the pattern of movement by lawyers between various employment positions,” Community Broadcasting of Boston, Inc. v. F.C.C., 546 F.2d 1022, 1027 (D.C. Cir. 1976), and the representation by large law firms of large corporations which frequently are opponents in litigation. See City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. 193, 196 (N.D.Ohio 1976), aff’d, 573 F.2d 1310 (6th Cir. 1977). Because those “parts” sometimes appear or are in fact inconsistent (i. e., an attorney’s representation of one client in a suit against one of the attorney’s former clients, or one of his other clients, whom he has previously represented in a similar matter), the issue of conflicting representations has been raised and addressed in a growing number of cases.
Indeed, it is now widely recognized that “disqualification motions have become ‘common tools of the litigation process, being used . . . for purely strategic purposes.’ ” Allegaert v. Perot, 565 F.2d 246, 251 (2d Cir. 1977) (quoting Van Graafeiland, Lawyers Conflict of Interest A Judge’s View (Part II), N.Y.L.J., July 20, 1977, at 1 col. 2); see Community Broadcasting of Boston, Inc. v. F.C.C., 546 F.2d at 1027; Woods v. Covington County Bank, 537 F.2d 804, 813 (5th Cir. 1976); International Elec. Corp. v. Flanzer, 527 F.2d 1288, 1289 (2d Cir. 1975). See generally Note, The Second Circuit and Attorney Disqualification Silver Chrysler Steers in a New Direction, 44 Fordham L.Rev. 130, 147 (1975). Consequently, such motions must be subjected to “judicial scrutiny to prevent literalism from possibly overcoming substantial justice to the parties.” J. P. Foley & Co., Inc. v. Vanderbilt, 523 F.2d 1357, 1360 (2d Cir. 1975) (Gurfein, J., concurring). However, the good faith of a party, or its counsel, who files a motion to disqualify should not necessarily be thereby called into question, because “in deciding questions of professional ethics men of good will often differ in their conclusions.” Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 227 (2d Cir. 1977).
In considering the district defendants’ motions to disqualify, the Court is guided by the principles set forth in the American Bar Association (ABA) Code of Professional Responsibility (the “Code” or “ABA Code”), which has expressly been made applicable to attorneys appearing before this Court by Rule 43.4(B) of the Local Rules of Procedure for the United States District Court for the Western District of Missouri.8 The district defendants have specifically directed the Court’s attention to Canons 4, 5 and 9, and their accompanying ethical considerations and disciplinary rules, which the defendants contend support and require the disqualification of Benson and the Blackwell-Sanders firm and its co-counsel. Canon 4 provides: “A lawyer should preserve *861 the confidences and secrets of a client.” Canon 5 enjoins: “A lawyer should exercise independent professional judgment on behalf of a client.” And Canon 9 cautions: “A lawyer should avoid even the appearance of professional impropriety.” These salutary commands represent ethical and moral principles that the legal profession has considered fundamental to its integrity over many centuries.
While these venerable guidelines must be given considerable weight, they should not be applied inflexibly or without consideration of “realities of which fair decision would call for judicial notice.” Silver Chrysler Plymouth, Inc. v. Chrysler Motor Corp., 518 F.2d 751, 753 (2d Cir. 1975). Those realities include society’s interest in the most expedient resolution of matters which affect the public at large, and a client’s interest in retaining his chosen counsel. See Arkansas v. Dean Foods Prod. Co., Inc., 605 F.2d 380, 383 (8th Cir. 1979); Woods v. Covington County Bank, 537 F.2d at 810; City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. at 195. In addition, it is important to note that ethical questions cannot be resolved by a “scientific” application of principles and precedents, because “(n)o code of ethics could establish unalterable rules governing all possible eventualities.” Cannon v. U.S. Acoustics Corp., 398 F.Supp. 209, 215 (N.D.Ill.1975), modified on other grounds, 532 F.2d 1118 (7th Cir. 1976). Therefore, the unique facts of each case must be tested against not only the canonized principles of the Code, but also the broad backdrop of “(e)thical experience”. Arkansas v. Dean Foods Prod. Co., Inc., 605 F.2d at 383.
The factual background of the motions at issue herein demonstrates that this case truly presents unique disqualification issues, for here an alleged conflict of interest arose as a result of this Court’s order realigning the original parties to this suit. While there are precedents that offer general guidance, the Court has found no case which is on all fours with this case. Nevertheless, the Court believes that it is clear, as the following discussion demonstrates, that no actual conflict of interest, nor detriment to any client’s interests, obtains in the advocacy positions which Benson and the Blackwell-Sanders firm and its co-counsel occupy.
III. STANDING

[3] Both the KCMSD and the plaintiffs have suggested that the district defendants lack standing to raise the disqualification issues presented in their motions. Concededly, it is true that “(a)s a general rule, courts do not disqualify an attorney on the grounds of conflict of interest unless the former client moves for disqualification.” In re Yarn Processing Patent Validity Litigation, 530 F.2d 83, 88 (5th Cir. 1976) (citations omitted); see e. g., Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 608; E. F. Hutton & Co. v. Brown, 305 F.Supp. 371, 377 (S.D.Tex.1969); Murchison v. Kirby, 201 F.Supp. 122, 123-24 (S.D.N.Y. 1961); Payne v. St. Louis Grain Corp., 562 S.W.2d 102, 106 & n. 4 (Mo.App.1977) (citing 7 C.J.S. Attorney and Client s 47 at 826 (1963)). See generally Sapienza v. New York News, Inc., 481 F.Supp. 671, 679 n. 4 (S.D.N.Y.1979). However, where the interests of the public are so greatly implicated as they are in this case, the Court believes that “third parties” such as the district defendants should be entitled to raise any apparent conflicts of interest which might undermine the validity of proceedings in this case.
[4] [5] The Supreme Court has noted that historically the function of exposing and reviewing the conduct of a legal practitioner was not discharged solely by client or court: “ ‘If a barrister was suspected of misconduct, the benchers of his inn (fellow barristers) might inquire of his behavior.” Cohen v. Hurley, 366 U.S. at 124, 81 S.Ct. at 959, 6 L.Ed.2d at 162 (quoting People ex rel. Karlin v. Culkin, 248 N.Y. 465, 472, 162 N.E. 487, 490 (1928) (Cardozo, C. J.)). That early practice has since been translated into an ethical duty with which each member of the Bar is charged: “When an attorney discovers a possible ethical violation concerning a matter before a court, he is not only authorized but is in fact obligated to bring the problem to that court’s attention.” *862 In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976); see ABA Code, DR 1-102(A) & 1-103(B); accord United States v. Clarkson, 567 F.2d 270, 271-72 n. 1 (4th Cir. 1977); Brown & Williamson Tobacco Corp. v. Daniel Int’l Corp., 563 F.2d 671, 673 (5th Cir. 1977); Sapienza v. New York News, Inc., 481 F.Supp. at 679 & n. 4; United States v. Turkish, 470 F.Supp. 903, 909 (S.D.N.Y.1978); Messing v. FDI, Inc., 439 F.Supp. 776, 780 (D.N.J.1977); Estates Theatres, Inc. v. Columbia Pictures Indus., Inc., 345 F.Supp. 93, 98 (S.D.N.Y.1972). And as the Court previously noted in its Order of November 27, 1979 (Ex. 47), “it appears to be the court’s duty in a situation of this kind (where an appearance of impropriety may result) to act sua sponte to determine if a breach of professional ethics has occurred or is about to occur.” Id. at 6 n. 9 (quoting Universal Athletic Sales Co. v. American Gym. Recreational & Athletic Equip. Corp., Inc., 357 F.Supp. 905, 908 (W.D.Pa.1973)); accord Richardson v. Hamilton Int’l Corp., 469 F.2d at 1385.
[6] [7] Therefore, the Court concludes that the district defendants have standing to bring alleged conflicts of interest to this Court’s attention. Although the clients who are affected by the alleged conflicts of interest, if such exist, have not objected to the conflicts, that circumstance does not preclude the defendants’ motions, but it may evidence a waiver by those parties of any conflicts. See Part V-B infra. The Court is not unmindful of the misuse to which a disqualification motion may be put. However, as the Court has observed, careful judicial scrutiny of such motions is an effective deterrent against any illconceived objectives. It should, of course, be apparent to all members of the Bar that “(l)eveling the charge of impropriety at opposing counsel, which if sustained would require withdrawal, should not be a standard part of counsel’s offensive armament to be used routinely or without reasonable and good faith belief in its necessity.” First Wis. Mortg. Trust v. First Wis. Corp., 584 F.2d 201, 206 (7th Cir. 1978). Plaintiffs and the KCMSD may rest assured that the Code’s ethical precepts will be applied to ensure “protection of . . . lambs, (and) not . . . wolves”, should there be any “in the lamb-fold.” Acorn Printing Co. v. Brown, 385 S.W.2d 812, 819 (Mo.App.1964).
IV. CANON 5: INDEPENDENT JUDGMENT
As one of the ethical bases for the disqualification of Benson and the Blackwell-Sanders firm and its co-counsel, the district defendants contend that those counsel have violated and are violating Canon 5’s directive that a lawyer “should exercise independent professional judgment on behalf of a client.” This claim appears to be based on the same theory underlying the Canon 4 attack on counsel i. e., prior conflicting representation by the challenged counsel or an associate of counsel has compromised and precludes the independent judgment which those counsel should exercise on behalf of their present clients. See e. g., Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 608-09. To the extent that this is the thrust of the Canon 5 claim, this argument is addressed below in the Court’s discussion of Canon 4.
[8] On the other hand, the defendants’ citation of Canon 5 might be construed as a “multiple representation” argument, which is the primary concern of Canon 5, because the district defendants have made repeated references in their suggestions to Freilich’s “dual representation” of the plaintiff school children and the defendant KCMSD. If, since the realignment, Freilich had in fact simultaneously acted as a consultant to the Blackwell-Sanders firm (and thereby as counsel for the defendant

KCMSD) and a consultant to Benson (and thereby counsel to the plaintiffs ), such “multiple representation” would violate the spirit of the Ethical Considerations of Canon 5, if not the mandatory command of DR 5-105(B) that a lawyer not simultaneously represent two or more clients whose interests differ when the exercise of his independent judgment on behalf of one client is likely to be or will be adversely affected by his representation of another one of his clients. See generally *863 Sapienza v. New York News, Inc., 481 F.Supp. at 678-80; Rice v. Baron, 456 F.Supp. 1361, 1373-76 (S.D.N.Y.1978). However, the Court has found that Freilich ceased his consultation work and activities with the Blackwell-Sanders firm and the KCMSD prior to his consultation activities with and assistance to Benson. Therefore, Freilich did not simultaneously represent clients with conflicting interests, and thus neither Benson nor the KCMSD could have been parties to, or have been tainted by, any such “multiple representation”.
Finally, the Court reiterates the finding in its prior order of November 27, 1979 (Ex. 47) that there is no collusive relationship between the plaintiffs or their counsel and the KCMSD or its counsel. See id. at 20-24. While counsel for those parties have manifested a commendable spirit of cooperation in the exchange of information through the discovery process, and while some passages of those parties’ pleadings are highly similar in their focus on inter-district relief, such factors do not demonstrate that Benson and the Blackwell-Sanders firm have exercised anything less than independent judgment on behalf of their clients. And the Court finds that those counsel are not and have not been precluded, by any prior associations or services, from exercising independent judgment and rendering uncompromised service for their present clients in this action.
V. CANON 4: CLIENT CONFIDENTIALITY
[9] [10] As stated earlier, Canon 4 enjoins the attorney “to preserve the confidences and secrets of a client.” The self-evident purpose of this ethical principle, as well as of the evidentiary attorney-client privilege which allows a client to forbid testimonial inquiry into confidential conversations between himself and his attorney, is to encourage unbridled and thorough communication between clients and their attorneys. See Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39, 51 (1976); ABA Code, Ethical Considerations 4-4 & 4-5; C. McCormick, Handbook of the Law of Evidence s 87 (2d ed. E. Cleary 1972). As one court has noted, “(t)he client must be secure in his belief that his lawyer will never disclose secrets confided in him”. Doe v. A. Corp., 330 F.Supp. 1352, 1354 (S.D.N.Y.1971), aff’d per curiam, sub nom. Hall v. A. Corp., 453 F.2d 1375 (2d Cir. 1972). To assure such security, courts as a general rule will upon the request of a client-party, disqualify counsel in an adversary proceeding when the following three elements are present:
(1) the movant party was previously represented by the attorney whose disqualification he seeks;
(2) the matters embraced within the pending suit are substantially related to the matters or the cause of action for which the attorney previously represented the movant party; and
(3) the attorney is representing an adversary of the movant party in the pending suit.
See General Elec. Co. v. Valeron Corp., 608 F.2d 265, 267 (6th Cir. 1979), cert. denied, —- U.S. ——, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980); Novo Terapeutisk Laboratorium A/S. v. Baxter Travenol Laboratories, Inc., 607 F.2d 186, 190-91 (7th Cir. 1979); Arkansas v. Dean Foods Prod. Co., Inc., 605 F.2d at 383-86; Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F. 2d at 235-36; Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 607-08.
[11] [12] Upon proof of those three elements, a presumption arises that confidences of the movant-client were disclosed to the attorney in the course of the prior representation, confidences which the attorney might use to the detriment of the movant in the current action. See Arkansas v. Dean Foods Prod. Co., Inc., 605 F.2d at 383; T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268-69 (S.D.N.Y.1953). Thus the client need not prove the actual passage of confidences to the attorney, or even the access of the attorney to such confidences; however, it is not clear whether that presumption may ever be rebutted by the attorney. As a general rule, the presumption is “irrefutable” or “conclusive”, *864 General Elec. Co. v. Valeron Corp., 608 F.2d at 267; Arkansas v. Dean Foods Prods. Co., Inc., 605 F.2d at 385; Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 608; In re Yarn Processing Patent Validity Litigation, 530 F.2d at 89; but in its recent opinion in Dean Foods, the Eighth Circuit declined to rule “whether the presumption may under some circumstances be rebuttable.” 605 F.2d at 385. The presumption of access to confidences also extends to the attorney’s partners, associates and employees, including law clerks, see id.; Consolidated Theatres v. Warner Bros. Circuit Management Corp., 216 F.2d 920, 926 (2d Cir. 1954); ABA Code, DR 5-105(D); and as Dean Foods illustrates, the presumption may extend to co-counsel in some circumstances, but not in others.

See 605 F.2d at 387-88; cf. Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d at 235-36. It is clear that “labels” should not be a controlling factor in a disqualification inquiry. See id. at 235.
A. Prior Representation
1. Blackwell-Sanders and Co-counsel
[13] In the instant case, there is no dispute that the Blackwell-Sanders firm and its co-counsel previously represented the Stark children in the first chapter of this litigation, and that they subsequently represented the KCMSD as a defendant against the Starks, who remained plaintiffs in this action until their dismissal in December of 1979. Not only are the matters of the prior and present representations substantially related, but they are identical, since the two periods of representation merely constitute different stages of this lawsuit. Consequently, the three elements of a disqualifying prior representation were present here while the Starks were plaintiffs in this action. Since the Starks have been dismissed at their request, BlackwellSanders and its co-counsel are no longer proceeding (by way of representation of an adversary) against clients whom they had previously represented in a substantially related matter. The record establishes that neither Blackwell-Sanders or its cocounsel have ever represented any of the current nine plaintiff school children in any earlier proceedings. In the absence of such a prior attorney-client relationship, Canon 4 simply is inapposite. See Fred Weber, Inc. v. Shell Oil Co., 566 F.2d at 608.
The district defendants, nevertheless, contend that Blackwell-Sanders and co-counsel must be disqualified, because the current plaintiffs “stand in the same position as their (counsel’s) former clients (the Starks)”. This argument is wholly without merit. First, it is highly unlikely that the Starks, plaintiff-students in a school desegregation action, or their next friend(s), ever discussed with their attorneys any matter of a “confidential” nature; indeed, it taxes the imagination to conceive of any confidential information related to their cause of action, which such plaintiff-students might have possessed and communicated to their attorneys. Second, while the current plaintiffs pursue claims identical to those which the Starks pursued, the Court fails to see how they, by their intervention, can “succeed” to a position of conflict with attorneys who have never represented them. There has been no showing that any conceivable confidential information, which the Starks might have possessed and transmitted to Blackwell-Sanders and co-counsel, was obtained by the Starks from the current plaintiffs. (I. e., Blackwell-Sanders and co-counsel have never been in a position affording access to confidences of the present plaintiffs.)
The district defendants argue further that the Starks’ dismissal, which by the Starks’ own admission (in their motion) was sought to remove any conflict in which Blackwell-Sanders and co-counsel stood, cannot cure the “conflict” because the public will continue to perceive an appearance of impropriety in the current advocacy positions of those attorneys. However, the Court noted in its order dismissing the Starks that the dismissal would serve to improve the public’s evaluation of this action, because no longer would there be any relationship between any of the plaintiff-students and the KCMSD. (The Starks’ *865 mother, Joyce Stark, continued to be a member of the KCMSD board after the realignment, although she withdrew from the position of next friend of her children. It was this familial relationship between the plaintiff Stark children and their mother, a director of the defendant KCMSD, which the Court saw as a potential basis for public concern over the “litigative independence” of the plaintiffs. See Order of December 21, 1979 (Ex. 51), at 2-3.) The Court remains confident in the accuracy of this earlier assessment. The possibility that the Starks’ dismissal might be perceived as a calculated measure aggravating an existing appearance of impropriety is unlikely because even if the Starks had remained in this suit, BlackwellSanders and its co- counsel would not stand in a conflict with their interests. That conclusion follows from two significant factors discussed below consent and joint representation which set this case apart from the typical prior representation case. See V-B & C, supra.
2. Freilich and Benson
The factual summary demonstrates that Freilich acted as an attorney for the KCMSD through his role as a legal consultant in the first chapter of this litigation. Consequently, in a memorandum order entered on November 27, 1979, the Court declared that Freilich could not have represented the plaintiff Stark children, in view of his prior representation of the Starks’

adversary. See Order of November 27, 1979 (Ex. 47), at 3-6. Upon re-examining the factual record and additional briefs submitted by the parties, the Court believes there are two significant factors consent and prior representation which remove this case from the general disqualification analysis which the Court applied in its earlier order. See V-B & C, infra. Thus, while Freilich would have been subject to disqualification under the general rule, an exception applies here as more fully discussed below.
[14] The district defendants have characterized Freilich’s position or role of assistance to Benson as the equivalent of the role of a member of an attorney’s staff or of his firm. And, from this assertion, they have reasoned that Freilich’s conflict of interest is imputed to Benson and that Benson therefore must thus be disqualified. Since the Court now concludes that Freilich did not stand in a conflict with the interest of the plaintiffs, Benson quite obviously does not suffer from any imputed conflict of interest. However, even if the Court were to abide by its earlier conclusion that Freilich stood in a conflict with the interests of the KCMSD, his former client, Freilich’s conflict would not be imputed to Benson by virtue of Freilich’s assistance. Regardless of the label affixed to Freilich’s role of assistance, his efforts amounted to no more than that which would have been permissible for “transitional consultation”, an exception to the general rule of imputing a conflict to the employees, associates, and co-counsel of disqualified counsel, which is discussed below. See V-D, infra.
B. Consent Waiver
[15] [16] It should be clear from the foregoing discussion that disqualification of counsel is a judicial action which is taken to protect the client. Indeed, as one commentator has noted, “the client is what standards are all about.” Patterson, Wanted: A New Code of Professional Responsibility, 63 A.B.A.J. 639, 642 (1977). However, a client may perceive no detriment in his former attorney’s representation of his current adversary, and thus the “client may consent to the employment of the attorney by (the) adverse party even where the client is involved in the case as a party.” In re Yarn Processing Patent Validity Litigation, 530 F.2d at 89; see 7 Am.Jur.2d Attorneys at Law s 156 (1963). This “consent” may also be conceptualized as a “waiver” by the client of his “right to object to an attorney’s allegedly adverse representation.” City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. at 205. As the Fifth Circuit noted in Yarn Processing, consent “typically occur(s) where the former client realizes that any prior disclosures will not prejudice him in the new case.” 530 F.2d at 89. *866 Benson, and Blackwell-Sanders and its co-counsel, contend that this is precisely the determination which the Stark children, through their next friend, and the KCMSD reached; and they argue further that the facts reveal that the Stark children and the KCMSD waived any objections to their current advocacy roles.
[17] The district defendants counter this argument by contending that no waivers in fact occurred and that, even if the KCMSD and the next friend of the Starks have attempted to waive the alleged conflicts of interest, such waivers are invalid by reason of public policy. The Court will address the second contention below. With regard to the first contention, several points should be noted. To begin, it is axiomatic that “(a) person cannot waive a right of which he is unaware.” E.F. Hutton & Co. v. Brown, 305 F.Supp. at 400. Thus, “counsel . . . (should) call to the attention of . . . (their clients) the existence and implications of any potential conflict of interest.” Id.; accord, Marketti v. Fitzsimmons, 373 F.Supp. 637, 641 (W.D.Wis. 1974) (quoting E.F. Hutton & Co. v. Brown, 305 F.Supp. at 398). The purpose of such disclosure is “to put the client in a position to protect himself by retaining substitute counsel if he so desires.” Id. There can be little doubt in this case that counsel for the plaintiffs and the KCMSD discussed the possibility of conflicts of interest among themselves and with their clients, see Part I-C supra; indeed, the clients could hardly escape familiarity with the “existence and implications” of any possible conflicts, since those issues have been the focal point of this action since June, 1979. See Part I-A supra.
[18] [19] A waiver of a conflict of interest or consent to adverse representation might be accomplished through the use of a letter of consent or some similar document, but a documentary manifestation of consent is not necessary. The courts have recognized that consent may be implicit in the client’s failure to object to his former attorney’s representation of his current opponent. See Rossworm v. Pittsburgh Corning Corp., 468 F.Supp. 168, 175 (N.D.N.Y.1979); City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. at 205. As the Ninth Circuit has noted “(w)aiver refers to the voluntary or intentional relinquishment of a known right” and “emphasizes the mental attitude of the actor”. Matsuo Yoshida v. Liberty Mutual Ins. Co, 240 F.2d 824, 829 (9th Cir. 1957). Conduct is often the most reliable manifestation of that mental attitude. Here, although Mrs. Johnson, the next friend of the Stark children, had not yet been formally appointed to that position on the date on which Benson drafted his letter of consent to Blackwell-Sanders (March 15, 1979), she then discussed the issue of a conflict with Benson and determined that no conflict exists. Since, her formal appointment to this date, she has not signaled a contrary

belief. Thus to the extent that Benson’s consent letter was technically ineffective as the consent of the plaintiffs’ next friend, Mrs. Johnson’s subsequent conduct is sufficient itself to manifest her consent. Similarly, although Blackwell-Sanders apparently failed to prepare a letter on behalf of the KCMSD to manifest its consent to Freilich’s assistance to Benson, the KCMSD has never objected to that assistance, even though it has had every opportunity to do so. No doubt the KCMSD board was aware of Freilich’s assistance to Benson when it voted to approve Freilich’s last invoice for legal fees at its June 7, 1979 meeting, but the Board expressed no objection to that assistance then, nor has it ever done so. Thus, the Court concludes that the Stark children, through Mrs. Johnson, and the KCMSD manifested their consent through their conduct to the advocacy roles of Freilich and the presently challenged counsel.
1. Validity of the KCMSD’s Waiver
[20] The district defendants claim that the KCMSD’s waiver is ineffectual for the reason that a public body cannot waive a conflict of interest. In support of this proposition, they point to the opinion of Harold W. Barrick, chairman of the Advisory Committee (Ex. 59), and cite the cases of *867 Greene v. Greene, 47 N.Y.2d 447, 418 N.Y.S.2d 379, 391 N.E.2d 1355 (1979) and In Re A. & B., 44 N.J. 331, 209 A.2d 101 (1965). With all due respect to Mr. Barrick, the Court disagrees. Mr. Barrick cited absolutely no authority in support of his opinion. Turning to the defendants’ citations, the Greene case did not involve a public body, and the court’s statement therein that consent to a conflicting representation is often ineffectual if the public interest is implicated was merely dictum. See 418 N.Y.S.2d at 382, 391 N.E.2d at 1358. The In Re A. & B. case also does not stand for the broad proposition for which the district defendants cite it. There, the New Jersey Supreme Court addressed the situation of an attorney’s dual or simultaneous representation of private clients (land developers) and a governmental body (a municipality). See 209 A.2d at 103. The Court believes there is a significant difference between the case of simultaneous representation of a public body and a private client who have conflicting interests and this case of successive representations of a public body, such as a school district, and private clients, such as students, whose interests have become adverse by reason of a judicial decision. Absent from the latter case, but present in the former case is the very real concern that the public may think the attorney will “trade on his official connections”. State v. Galati, 64 N.J. 572, 319 A.2d 220, 223 (1974).
[21] [22] [23] [24] Local governmental units such as the KCMSD are “creatures of the State” and their authority is derived from and measured by state law. Bambu Sales, Inc. v. Gibson, 474 F.Supp. 1297, 1301 (D.N.J.1979). Under Missouri law, a school district is “vested with discretion in all matters affecting school management,” Saunders v. Reorganized School Dist. No. 2 of Osage City, 520 S.W.2d 29, 35 (Mo.1975) (emphasis added); accord Smith v. Consolidated School Dist. No. 2, 408 S.W.2d 50, 53 (Mo. en banc 1966); and to effectuate various expressly delegated powers concerning education, a district inherently possesses certain implied powers, among which is the capacity to sue and to be sued. See School District of Kansas City v. Missouri, 460 F.Supp. at 444. The Court believes that the power to sue also partakes of the authority to make tactical or procedural and substantive decisions with respect to suits commenced by a district. Nowhere in the statutory scheme governing Missouri school districts is there any prohibition, express or implied, against the waiver of a technical conflict of interest in which counsel for an adversary of the district stands. See Mo.Ann.Stat. ss 162.011-171.191 (Vernon’s 1965 & 1980 Cum.Supp.). In addition, the Court’s research has not uncovered any Missouri or federal cases holding that a school district or any public body lacks the authority to consent to a former attorney’s representation of an adversary. On the other hand, the Court notes that it has been held that a city could and did, by its conduct, waive its right to object to a former counsel’s representation of its opponent in a lawsuit. See City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. at 203-05. Since the KCMSD’s waiver of Freilich’s alleged conflict does not violate Missouri’s prohibition against an “unreasonable, arbitrary, capricious or unlawful” exercise of power by a school district, see School District of Kansas City v. Clymer, 554 S.W.2d 483, 487 (Mo.App.1977), the Court concludes that the waiver was valid.
2. Validity of Mrs. Johnson’s Waiver on Behalf of the Plaintiff Stark Children
[25] [26] The district defendants contend that Mrs. Johnson had no authority to waive the conflict of Blackwell-Sanders and its co-counsel on behalf of the Starks who are minors. It is well settled that a guardian ad litem or next friend “cannot admit anything or waive anything which goes to sustain the adverse party’s claim.” M.F.A. Mut. Ins. Co. v. Alexander, 361 S.W.2d 171, 181 (Mo.App.1962) (emphasis added); see Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir. 1978) (guardian ad litem or next friend may not “prejudice the substantial rights of the minor litigant”); Dixon v. United States, 197 F.Supp. 798, 803

(W.D.S.C.1961) (same); Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321, 323 (Mo. en banc 1952) (same). See generally *868 43 C.J.S. Infants s 236, at 619 (1978). Thus, for example, a minor’s representative may not stipulate to a judgment against the minor in the absence of court approval or waive the minor’s rights in property which is the object of a lawsuit, see Campbell v. Campbell, 350 Mo. 169, 165 S.W.2d 851, 856-57 (1942); and a representative of a minor who is a litigant in a will proceeding cannot “admit a construction (of the will which is) in any way detrimental to his ward . . . , if there is a reasonable construction more favorable.” Kennard v. Wiggins, 394 Mo. 283, 160 S.W.2d 706, 712 (1941), cert. denied, 317 U.S. 652, 63 S.Ct. 47, 87 L.Ed.2d 524 (1942).
[27] [28] However, the minor’s representative may “bind the minor to procedural steps of litigation.” Dacanay v. Mendoza, 573 F.2d at 1079 n. 8. Among such procedural steps are the selection of a forum, choice of venue, the determination whether or not to waive a jury trial, and the admission or stipulation of undisputed facts. See Blades v. Spitzer, 252 N.C. 207, 113 S.E. 2d 315, 320 (1960); 43 C.J.S. Infants s 236, at 620 & n. 3. Thus, the representative “may make a valid consent or waiver as to matters which merely facilitate the litigation and cannot prejudicially affect the rights of the infant.” Id. s 241, at 632 (emphasis added); see Maine Nat’l Bank v. Petrlik, 283 A.2d 660, 663 (Me.1971); Stephens v. Stephens, 311 P.2d 241, 243 (Okl.1957). The Court believes that such “procedural discretion” encompasses the decision to waive a conflict of interest with which an adversary’s counsel has been charged if it is reasonably clear to the representative that counsel did not obtain any confidential information in the prior representation which he could use to the minor’s detriment in the pending suit. Such a waiver would not prejudice the minor’s substantive rights or claims which are at stake in the pending suit, but rather would facilitate a more expeditious resolution of the suit. In this connection it should be noted that the representative not only has “authority to engage counsel, file suit, and to prosecute, control and direct the litigation”, but is charged with “full responsibility to assist the court to ‘secure a just, speedy and inexpensive determination’ of the action.” Noe v. True, 507 F.2d 9, 12 (6th Cir. 1974) (emphasis added) (quoting Fong Sik Leung v. Dulles, 226 F.2d 74, 82 (9th Cir. 1955) (Boldt, J., concurring)). Where, as here, disqualification of counsel would delay proceedings and counsel’s alleged conflict is technical only, prudence would suggest that the representative waive the conflict in the interest of expediency and efficiency. Furthermore, the waiver at issue herein yielded a benefit to the minor plaintiffs the Stark children because the waiver was made by Mrs. Johnson and her attorney Benson with the understanding that the KCMSD would not object to Freilich’s assistance to Benson.
The district defendants cite two decisions, one of them a Missouri case, which they contend hold that consent should not be countenanced in a case in which minors are involved. See In re Pfiffner’s Guardianship, 194 S.W.2d 233, 236 (Mo.App.1946) and Weinberg v. Underwood, 101 N.J.Super. 448, 244 A.2d 538, 540-41 (1968). The Court believes that both cases are distinguishable from and not controlling over this case. The Pfiffner decision addressed the propriety of awarding an attorney a legal fee out of a minor’s interest in an estate when his representation of the minor’s guardian, her sister, was at conflict with his simultaneous representation of the sister as administratrix of an estate in which both the sister and minor had property interests. See 194 S.W.2d at 234-36. The lawyer’s continuation in the dual consultation roles might very well have resulted in a detriment to the minor’s financial interests in the estate. The minor had no guardian ad litem or next friend during the time period in question and there was no real contention that the attorney had secured consent from the minor. Thus the Pfiffner case does not hold that a guardian ad litem or next friend can never waive or consent to an attorney’s conflict of interest. Nor did the Weinberg case announce such a general, sweeping rule. In fact that case did not involve either a minor or a guardian ad litem or next friend, but rather addressed a joint-plaintiffs situation in which the interests of *869 plaintiff-parents passengers in an automobile involved in an accident were potentially adverse to the interests of their plaintiff-daughter the driver of the automobile, because the defendant driver of a second automobile had filed a counterclaim for contribution against the daughter. Both parents and daughter had been represented by one attorney when they commenced the action. In view of the defendant’s counterclaim, and the conflict it might produce between the interests of the parents and daughter, the Court held that the attorney could not represent either interest since his representation of the family as a whole compromised his ability to exercise independent judgment as to either “unit”. See 244 A.2d at 540-41.
[29] [30] Finally, it should be noted that whenever minors are involved in an adversary proceeding, “the trial judge ha(s) a special obligation to see that they (are) properly represented,” United States v. Reilly, 385 F.2d 225, 228 (10th Cir. 1967), and “the court itself assumes ultimate responsibility for determinations made on behalf of the child.” Noe v. True, 507 F.2d at 12; accord Dacanay v. Mendoza, 573 F.2d at 1079; Dixon v. United States, 197 F.Supp. at 802. Mrs. Johnson was appointed next friend by this Court pursuant to Fed.R.Civ.P. 17(c), and it is this Court which must review and evaluate her actions. See generally M.S. v. Wermers, 557 F.2d 170, 174 n. 4 (8th Cir. 1977). The alleged conflicts of interest in this case have not gone unnoticed by this Court. Rather, the Court has carefully scrutinized counsel’s representation and has been solicitous of the rights and interests of the minor plaintiffs, but it has not found and does not now find that Mrs. Johnson’s waiver sacrifices or impairs those rights and interests. “(T)he rule against conflicts of interest is not against conflicts as such but against conflicts

which disserve the interest of justice . . . .” 43 C.J.S. Infants s 232b, at 601. The Court concludes that Mrs. Johnson’s waiver is valid, because it was not a waiver of a conflict which “disserves the interest of justice.”
C. Joint Representation
Related to the issue of waiver or consent by each of the clients affected by the alleged conflicts is the fact that the prior representations forming the basis of those alleged conflicts were a single “joint representation” of the KCMSD and the Starks (along with other minor plaintiffs) as joint plaintiffs by Blackwell-Sanders and its co-counsel, along with Freilich. To the extent that there remains any question over the validity or propriety of the waivers discussed above, the Court believes that the challenged counsel clearly do not suffer from a conflict of interest by reason of this circumstance of prior joint representation.
[31] During the first chapter of this litigation, to which the Court has repeatedly referred, both the KCMSD and the minor school children were proceeding as plaintiffs who shared a community of interest, manifested in the original complaint filed in this action. Both contended that the disproportionate racial composition of the KCMSD was caused by actions of the various state and federal defendants, and both sought, inter alia, interdistrict relief. The Court determined, however, that the possibility existed that the segregative condition of the KCMSD was in part a result of prior or current practices or actions of the KCMSD itself; thus, to assure that the rights of the minor school children would be fully explored and protected, the Court decided that the KCMSD should be realigned as a defendant. See School District of Kansas City v. Missouri, 460 F.Supp. at 440-42. Subsequent to realignment, the plaintiff-students filed an amended complaint, which alleges, inter alia, that the KCMSD committed de jure acts of segregation in the past and that the impact and effect of those acts and alleged acts of the other defendants in the case can only be remedied by dissolution of the geographical unit comprising the KCMSD and the formation of a metropolitan-wide (but geographically limited to the boundaries of the State of Missouri) school district. Although the plaintiff children and the KCMSD have, since realignment, been adversaries, there was no divergence *870 of interests among them during the period of joint representation, in terms of their litigation strategy at that time.
When two or more parties are jointly represented in a matter as co-defendants or co-plaintiffs by one or more attorneys, and are proceeding on the same claims and legal theories, it is normally understood that any information which is shared with counsel by one party might and probably will be transmitted to the other joint party by counsel. Here, nothing in the record suggests that any one of the original parties-plaintiff the school children by their next friends or the KCMSD ever expected that any confidential information which one party communicated to the joint attorneys would not be disclosed to another party-plaintiff; and none of those parties have ever contended that they had such an expectation. Indeed, such an exchange of information is quite likely since the original next friends (who were the parents of the minor plaintiffs then in the suit) were also members of the KCMSD board. See Part I-A supra. (Although, as the Court has previously observed, it is highly unlikely that any of the plaintiff children communicated any confidential information to any of the attorneys.) Thus, as between the common clients the KCMSD and the original minor plaintiffs, any communications which they had with Freilich or the Blackwell-Sanders firm and its co-counsel were not confidences or secrets within the contemplation of Canon 4. See Allegaert v. Perot, 565 F.2d at 250; Moritz v. Medical Protective Co. of Fort Wayne, Ind., 428 F.Supp. 865, 872-73 (W.D.Wis. 1977).
In Allegaert v. Perot, supra, the Second Circuit faced a factual situation somewhat similar to the one before this Court. There, several Wall Street brokerage firms which were experiencing financial difficulty entered into a legal association resembling a “joint venture” that was arranged by each firm’s legal counsel. During the existence of the “joint venture”, the attorneys of each brokerage firm rendered various services on behalf of the “joint venture”. Apparently the financial difficulties of one of the firms worsened, and it eventually filed a petition in bankruptcy. Subsequently, the trustee in bankruptcy brought a securities action against the other firm and other defendants, and in that action sought to disqualify two of the law firms which had served as counsel to the “joint venture”. The district court refused to disqualify the firms and the court of appeals upheld it on the basis that “(n)either (the prior client, the bankrupt firm) nor anyone connected with it could have thought that . . . any information given to the law firms conceivably would have been held confidential from the (other firm in the joint venture, and its parent concern).” Allegaert v. Perot, 565 F.2d at 250.
As a consequence of the joint representation, the Second Circuit concluded that the “substantial relationship” test of Canon 4, under which the law firms might have been disqualified, was inapplicable: “(B)efore the substantial relationship test is even implicated, it must be shown that the attorney was in a position where he could have received information which his former

client might reasonably have assumed the attorney would withhold from his present client.” Id. (emphasis in original); accord Moritz v. Medical Protective Co. of Fort Wayne, Ind., 428 F.Supp. at 874-75; Lau v. Valu-Bilt Homes, Ltd., 582 P.2d 195, 202-04 (Haw.1978); Petty v. Superior Court, 116 Cal.App.2d 20, 253 P.2d 28, 33-34 (1953); cf. Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 479 F.Supp. 465, 468-69 (E.D.La.1979). But cf. Brennan’s, Inc. v. Brennan’s Restaurants, Inc., 590 F.2d 168, 171-72 (5th Cir. 1979) (where single attorney represented various members of family with respect to family business interests, prior to fission of those interests, and where, in suit brought by one family group (as plaintiffs) against another family group (as defendants), plaintiffs objected to common attorney’s representation of defendants, attorney had to be disqualified under Canon 9). Since the Court finds that none of the “former clients” involved in this case, the original joint plaintiffs, expected that communications with their attorneys would be kept confidential from any of the other joint *871 plaintiffs, Canon 4 and the substantial relationship test are inapposite. The district defendants suggest that the “joint representation” rationale is not applicable here because minors are involved; but the Court sees no significant distinction in this factor since those minors were and are represented by a next friend who, as previously noted, has the authority to make various procedural decisions concerning the course of this litigation, subject to this Court’s approval. See Part V-B-2 supra.
D. Transitional Consultation
[32] [33] Even if this Court were to abide by its earlier conclusion that Freilich (had he attempted to stay in this action) would have been subject to disqualification under Canons 4 and 9, the Court believes that Benson, nevertheless, would not also be subject to disqualification by reason of Freilich’s assistance and association with him. The courts have recognized that where an attorney has been disqualified, that attorney’s present client in the pending suit will suffer the loss of experienced counsel who generally has expended considerable time and efforts in preparing and litigating the client’s case. To soften the harsh impact of such a loss, new or substitute counsel has been permitted access to the work product of disqualified counsel and limited consultation with disqualified counsel for the purpose of explanation of such work product. See First Wis. Mortg. Trust v. First Wis. Corp., 584 F.2d at 205-08; International Business Machines Corp. v. Levin, 579 F.2d 271, 283 (3d Cir. 1978). The Court believes that the factual summary demonstrates that Freilich’s assistance to Benson during a brief two month period amounted to no more than limited consultation on prior pleadings and the legal theories underlying such.
The district defendants have noted that Benson had already obtained pleadings and other documents filed in the first chapter of this litigation from the Blackwell-Sanders firm, and thus they question the applicability of the work product-turnover doctrine to Freilich’s efforts. However, this suit had been in progress for nearly one and one-half years at the time of this Court’s realignment order; and given the complexity of the desegregation issues raised in past pleadings and court orders, there can be no serious dispute that Benson the plaintiff-students’ new counsel would have labored under a serious disadvantage without some explanation of those issues. Freilich provided that explanation through consultation and assistance efforts which only consisted of approximately twenty hours of time and which spanned a period of two months (April and May, 1979). A similar period of consultation (sixty days) in conjunction with the turnover of disqualified counsel’s work product was approved by the Third Circuit in the Levin case. See 579 F.2d at 283.
The district defendants argue that both Levin and First Wis. Mortg. Trust are distinguishable on their facts, because in those cases no confidential information had been obtained by the disqualified counsel. Admittedly, Levin involved dual representation and the application of Canon 5, and the trial court there had found that disqualified counsel had not obtained any confidential information of its prior client. But the Third Circuit noted, in approving work product turnover and consultation, that “specific injury to the moving party ha(d) not been shown.” 579 F.2d at 283. Similarly, the district defendants have failed to show that they have been injured by Freilich’s consultation, and they have also failed to show how the KCMSD has been injured. The Court believes the record amply illustrates that Benson never obtained any confidential information of the KCMSD from Freilich, if Freilich ever had any. Nor is this case entirely unlike First Wis. Mortg. Trust which involved a prior representation and the application of the Canon 4 “substantial relationship” test, since the documents and information which Freilich examined and to which he had access during his service for the KCMSD, like the files examined by the attorney in that case, were primarily public records available to all parties. See 584 F.2d at 207.
*872 The district defendants vigorously assert that Freilich’s actions far exceeded the role of work-product consultation, but they provide no factual support for their assertions. The record reveals only a series of consultation sessions in which Freilich and Benson discussed the pleadings; and Freilich’s contributions consisted of explanations of past pleadings and review of new pleadings drafted by Benson. The defendants also make much of Freilich’s appearance with Benson in the May 31, 1979 pretrial conference before the Court and suggest that it was the crowning event in a course of conduct whereby both attorneys

held themselves out to the public as joint counsel for the plaintiff Stark children. However, that conference was the first and only occasion where Freilich actually appeared publicly on behalf of plaintiffs; and Freilich did not brazenly take matters into his own hands by engaging in the active representation of the plaintiffs, but rather he sought this Court’s leave and pointed out potential conflicts of interest. Indeed, the Court believes that Freilich’s announcements at the conference clearly indicate that his role, up until that point in time, was only that of a limited consultant, and not that of co-counsel, associate or staff member. And, as the Court has found, Freilich rendered no efforts of assistance to Benson after the conference.
Therefore, the Court concludes that, even if Freilich had been subject to disqualification (a conclusion which it now rejects), his association with Benson did not “taint” Benson with a disqualifying conflict. Freilich’s role of assistance was a “peripheral one”; and it was Benson who was then and is now “guiding (this) matter”, and who was and is “the moving force in this litigation.” Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 (3d Cir. 1977). Since the Court views Freilich’s assistance to Benson as permissible “transitional consultation”, it is unnecessary to consider the “co-counsel” cases cited by the district defendants. However, the foregoing discussion should demonstrate that Freilich and Benson did not associate in the type of close relationship which justified the disqualification of co-counsel in those cases.
VI. CANON 9: APPEARANCE OF IMPROPRIETY
[34] The district defendants contend that, even if challenged counsel have not committed any improper acts, the public is certain to perceive an impropriety in the current advocacy positions which those counsel occupy, in light of the prior period of representation in this suit. In support of this claim, they note that this case has been heavily publicized, including the disqualification proceedings. It is a fundamental ethical precept that every attorney “should avoid even the appearance of impropriety”. ABA Code, Canon 9. To say this is not to say that an attorney must be disqualified from representation of a litigant whenever there is a possibility that the public will perceive some impropriety in that representation, however remote that possibility may be. While an attorney may be disqualified under Canon 9 in the absence of an actual breach of ethics, see International Business Machines Corp. v. Levin, 579 F.2d at 283, “there must be at least a reasonable possibility that some specifically identifiable impropriety did in fact occur.” Woods v. Covington County Bank, 537 F.2d at 813; see Church of Scientology of California v. McLean, 615 F.2d 691, 693 (5th Cir. 1980); Board of Educ. of City of New York v. Nyquist, 590 F.2d 1241, 1247 (2d Cir. 1979); R-T Leasing Corp. v. Ethyl Corp., 484 F.Supp. 950, 954 (S.D.N.Y.1979).
[35] The Court’s discussion of Canons 4 and 5 illustrates that such a “reasonable possibility” does not exist in this case. When considering the public’s view, “we must be careful not to accept the view of the most cynical as the true voice of the public.” International Elec. Corp. v. Flanzer, 527 F.2d at 1294; rather, “the Court must consider what it believes would be the view of the average layman.” Price v. Admiral Ins. Co., 481 F.Supp. at 378. Considering the average layman’s perception of this case, the Court believes that such an individual would not be troubled by the current posture of parties and counsel in *873 this suit. Indeed, if the average layman has followed the local press’s coverage of the progress of this action, and particularly this Court’s realignment order in the fall of 1978, he most likely would think it logical and reasonable that counsel representing the original plaintiffs parted ways when the Court “parted” the plaintiffs Blackwell-Sanders and its co-counsel continuing to represent the KCMSD, a client which Blackwell-Sanders has represented for over 60 years, and Professor Freilich attempting to assist the minor plaintiffs who were and always had been the object of the desegregation theories which he formulated in the original complaint.
The concern of Canon 9 is, as the Third Circuit noted in quoting Lord Herschell, that people in addition to getting justice “should be made to feel and see that they (are) getting it.” Kramer v. Scientific Control Corp., 534 F.2d 1085, 1088 (3d Cir.), cert. denied, sub nom. Arthur Andersen & Co. v. Kramer, 429 U.S. 830, 97 S.Ct. 90, 50 L.Ed.2d 94 (1976) (quoting 2 J. B. Atlay, Victorian Chancellors 460 (1908)). The Court believes that the citizens of this metropolitan area, and particularly the taxpayers whose taxes have been charged with the legal fees of the counsel representing the various school districts in this case and the parents whose children attend school within the geographical area at issue in the complaint, would be more likely to “feel and see” justice in the continuation of the present advocacy roles of the challenged counsel, than in the disqualification of those counsel. Disqualification could only further delay a final determination of the issues in this suit and generate additional expenses for the KCMSD and the plaintiffs, who would need to retain new counsel and compensate them to duplicate preparatory efforts of present counsel. Such considerations are entitled to considerable weight in a disqualification inquiry under Canon 9. See W. T. Grant Co. v. Haines, 531 F.2d 671, 677 (2d Cir. 1976). And the Court believes that the publicity surrounding this case to date suggests that the public’s confidence in the integrity of our judicial system would be eroded and emasculated by the disqualification of challenged counsel, because such an action would likely

be viewed as a triumph of regimented rule over reason. As the Eighth Circuit has observed, “(d)isqualification in spasm reaction to every situation capable of appearing improper to the jaundiced cynic is as goal-defeating as failure to disqualify in blind disregard of flagrant conflicts of interest.” Arkansas v. Dean Foods Prod. Co., Inc., 605 F.2d at 383 (emphasis added). Several of the news articles that have chronicled the progress of the disqualification proceedings reflect a concern over delay and the replacement of counsel in the event of disqualification. Illustrative of that concern are the headlines of two of those articles: “School Suit May Face New Delay” (Ex. 89), and “Lengthy KC School Suit Stalls”. (Ex. 90).9
In addition to the likely public reaction to the disqualification vel non of challenged counsel, this Court must also weigh the client’s interest in retained counsel of his choice, an interest which the courts have regarded as significant. See, e. g., Board of Educ. of City of New York v. Nyquist, 590 F.2d at 1246; Woods v. Covington County Bank, 537 F.2d at 813. BlackwellSanders has represented the KCMSD as retained counsel over a period of 60 years and has no doubt developed some expertise in the area of desegregation litigation. Consequently, there can be no dispute that the KCMSD has a great interest in that firm’s continuing *874 representation of it in this lawsuit. Cf. City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. at 196. While Benson obviously has not represented the plaintiff children for such a lengthy period of time, the Court takes judicial notice of the fact that he is recognized in this metropolitan area as a vigorous and effective advocate of civil rights. He has to date served as plaintiffs’ counsel without remuneration; and, although plaintiffs might conceivably locate another attorney with a similar background and willingness to advance this cause pro bono publico, no prospective advocates have yet stepped forward “in the wings” even though the ongoing disqualification scenario has cast a dim light on Benson’s current role throughout the past year (Ex. 86-87).
Since the clients’ interest in retaining the services of challenged counsel is great, the public’s interest in the most expeditious resolution of the poignant social issues in this desegregation suit is also significant, and the alleged conflicts of interest are more technical than real, the Court concludes that Canon 9 does not require the disqualification of challenged counsel. “Canon 9 . . . should not be used promiscuously as a convenient tool for disqualification when the facts simply do not fit within the rubric of other specific ethical and disciplinary rules.” International Elec. Corp. v. Flanzer, 527 F.2d at 1295. The continuing representation of the plaintiffs and the KCMSD by those counsel will not “taint” this trial, but rather will serve to advance it toward a disposition on the merits. See Board of Educ. of City of New York v. Nyquist, 590 F.2d at 1246-47.
VII. STATE ADVISORY COMMITTEE RULING
As the Court noted earlier in this memorandum, on August 6, 1979, the Advisory Committee of the Missouri Bar, through its chairman Harold W. Barrack, issued a brief two-page opinion-letter (Ex. 76), finding that neither Freilich nor Benson could represent the plaintiff school children without standing in a position of conflict with the KCMSD. The Committee’s opinion was issued in response to an earlier request made by the district defendants. (Ex. 61).10 Both in that opinion-letter and in earlier correspondence (Ex. 65), the Committee stated that its opinion “is certainly not binding on the Court and is not meant to infringe in any way on the jurisdiction of the Court.” (Ex. 76, at 1; see Ex. 65, at 1). The district defendants have acknowledged the Committee’s concession of its limited function, but they, nevertheless, insist that traditional principles of comity between federal and state governmental bodies dictate that this Court should follow the Committee’s opinion. They have also predicted that a decision by this Court, departing from the Committee ruling, will undermine the force of future Committee rulings and will have an adverse effect by creating “a bad image and impression in the public mind.”
[36] The Committee’s advisory opinion is entitled to and has received consideration by this Court in its painstaking analysis of the disqualification motions, since it is to some extent indicative of the ethical judgment of the Bar of the state in which this federal district court sits, the Bar of which challenged counsel are members. However, the conduct of those counsel in proceedings before this Court is, as previously noted, a matter for which this Court must and does assume responsibility, and over which it must and does exercise supervision. Hull v. Celanese Corp., 513 F.2d at 571. “When an attorney appears before a federal court, he is acting as an officer of that court, and it is that court which must judge his conduct.” *875 Cord v. Smith, 338 F.2d 516, 524 (9th Cir. 1964), aff’d on rehearing, 370 F.2d 418 (9th Cir. 1966) (emphasis added); see 28 U.S.C. s 1654 (1976) (In all courts of the United States the parties “may . . . conduct their own cases . . . by counsel as, by the rules of such courts, . . . (counsel) are permitted to manage and conduct causes therein.”); accord, International Business Machines Corp. v. Levin, 579 F.2d at 279 n. 2; Spanos v. Skouras Theatres Corp., 364 F.2d 161, 165 (2d Cir.) cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966); Triplett v. Azordegan, 421 F.Supp. 998, 1001 (N.D.Ill.1976); Marketti v. Fitzsimmons, 373 F.Supp. at 639 n. 1. See also Sperry v. Florida ex rel. The Florida Bar, 373 U.S. 379, 384-85, 83 S.Ct. 1322, 1325-1326, 10 L.Ed.2d 428, 432-33 (1963).

Therefore, although this Court, in the exercise of its supervision over attorneys conducting proceedings before it, has reached an ethical determination at variance with an advisory opinion of the ethics committee of a state bar, the Court is hard pressed to see how this result demeans or denigrates the function of that committee as an advisory body, or eviscerates the precedential value of the committee’s opinions. Missouri courts recognize that the supervision of counsel’s conduct before a trial court is a function committed to the trial court, see State v. Bailey, 278 S.W.2d 737, 741 (Mo. en banc 1955), while requests for censure of an attorney for unethical conduct are matters which should be submitted to the Advisory Committee or a local bar committee. See D L L v. M O L , 574 S.W.2d 481, 483 (Mo.App.1978). Such a view is not surprising since a trial court, observing firsthand the conduct of counsel in proceedings, is better equipped than is an advisory committee to undertake the “painstaking analysis of the facts and precise application of precedent” necessary to the delineation of “fine lines” marking the reaches of appropriate ethical conduct. See United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955).
[37] To recapitulate, because the Court’s decision herein addresses the conduct of counsel in proceedings before a federal tribunal, it in no way interferes with the State of Missouri’s traditional and historical role of regulating the practice of law in its courts. See Dixon v. Georgia Indigent Legal Services, Inc., 388 F.Supp. 1156, 1162 (S.D.Ga.1974); Staud v. Stewart, 366 F.Supp. 1398, 1401 (E.D.Pa.1973). See generally In re Primus, 436 U.S. 412, 422, 98 S.Ct. 1893, 1899, 56 L.Ed.2d 417, 428 (1978); Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 460, 98 S.Ct. 1912, 1920, 56 L.Ed.2d 444, 456 (1978). And while the Court’s decision is contrary to the Advisory Committee’s opinion, the Court in no way signals any lack of respect for that body. In this connection, it is helpful to note that appellate courts, when called upon to review the decisions of lower tribunals, often determine that those decisions must be overruled, but no one has ever suggested that the functions and roles of those lower tribunals have thereby suffered “inestimable damage”.11 Such a suggestion could only evince a misunderstanding of the appellate process and our system of justice. Whether or not the district defendants labor under a similar misunderstanding, their arguments as to comity and the potential, prejudicial impact of this Court’s decision are simply unfounded.
VIII. CERTIFICATION UNDER S 1292(B)
In the recent decision of In re Multi-Piece Rim Prod. Liability Litigation, 612 F.2d 377 (8th Cir. 1980), the Eighth Circuit reversed its holdings in Weber and Dean Foods, supra, that an order denying disqualification of counsel is appealable as a “final order” *876 under the “collateral order” doctrine enuniciated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The court announced that such orders will no longer be appealable as final orders under 28 U.S.C. s 1291. See 612 F.2d at 378; accord Melamed v. ITT Continental Baking Co., 592 F.2d 290, 295 (6th Cir. 1979); Community Broadcasting of Boston, Inc. v. F.C.C., 546 F.2d at 1026-27; cf. In re Fine Paper Antitrust Litigation, 617 F.2d 22, 26-27 (3rd Cir. 1980). Cognizant of the Multi-Piece Rim holding, the district defendants have requested certification, pursuant to 28 U.S.C. s 1292(b), of any order which this Court might issue denying the requested disqualifications.
[38] Section 1292(b) permits a party to appeal an interlocutory order which is not otherwise appealable if (1) the district judge entering that order believes that the order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from that order may materially advance the ultimate termination of the litigation ”, id. (emphasis added) and (2) the court of appeals in its discretion permits the appeal. Id. The Eighth Circuit’s Multi-Piece Rim decision did not rule out the use of s 1292(b) certification as a procedural avenue for appeal of an order denying disqualification, but it did suggest that immediate review of such an order would be limited to “the exceptional case where irreparable harm could occur.” 612 F.2d at 378. As the Court has noted throughout this memorandum, the disqualification questions in this case are unique. However, those questions are not being pressed by former clients who might stand to be injured by the denial of disqualification of an adversary’s counsel; rather, those issues have been raised by other parties in this action the district defendants who have failed to demonstrate any appreciable harm that they will suffer by denial of the disqualification motions. Cf. Melamed v. ITT Continental Baking Co., 592 F.2d at 293. Furthermore, proceedings on the disqualification motions have already sidetracked this litigation for a year, and certification would only exacerbate that delay rather than “materially advance the ultimate termination of the litigation.” 28 U.S.C. s 1292(b). Accordingly, the Court declines to certify the disqualification issues decided herein.

IX. CONCLUSION
The Court has attempted herein to resolve “the acutely sensitive dilemma of protecting the confidentiality of the clientattorney relationship without needlessly interfering with a litigant’s freedom to proceed with legal counsel of choice.” City of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp. at 195. And while the unique facts of this case have made that task somewhat difficult, the Court believes it is clear that the current advocacy roles of challenged counsel do not jeopardize the client confidentiality protected by Canon 4, or suffer from a less than independent judgment to which Canon 5 is addressed. Nor can it be contended that the average layman would perceive in those advocacy roles the improper appearance which Canon 9 seeks to prevent. This case is merely an illustration of Judge Irving R. Kaufman’s observation that a “lawyer’s ethical dilemmas will not be resolved by pat answers or facile solutions.” Kaufman, Watergating on Main Street Law, SATURDAY REVIEW, Nov. 1, 1975, at 10, 18. The Court has not attempted to offer any “pat answers”, but it believes that the results reached herein are obedient to the call of justice: “General rules of court, like general principles of law, are subject to exception when justice cries out for the exception.” Acorn Printing Co. v. Brown, 385 S.W.2d at 819 (quoting Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048, 1055).
In accordance with the foregoing memorandum, it is hereby
ORDERED that the motions of the district defendants to disqualify Arthur A. Benson II and the firm of Blackwell, Sanders, Matheny, Weary & Lombardi, and its co-counsel Robert E. Manley and Taylor Fields of the firm of North, Colbert & Fields, are denied; and it is further
*877 ORDERED that the district defendants’ request for certification of this order pursuant to 28 U.S.C. s 1292(b) is denied.

All Citations 492 F.Supp. 848

Footnotes

1

Subsequent to the ﬁling of the joint designation of facts and evidentiary record, plaintiffs and the KCMSD moved

for leave of Court to ﬁle the afﬁdavits of James Borthwick, a member of the Blackwell-Sanders ﬁrm, Arthur A.

Benson II and Robert S. Freilich. Those motions are hereby denied, and the afﬁdavits have received no

consideration by the Court. In the joint designation, the parties agreed that “no further evidence will be submitted

by any party except by leave of court and upon such conditions as the court may require.” The Court declines to

grant leave because the afﬁdavits are largely addressed to inferences drawn by the district defendants in their

brief in support of disqualiﬁcation, and the Court is able to determine, from its own examination of the factual

record, which inferences are unwarranted.

In addition, although the parties have not included in the joint designation all of the pleadings, correspondence

and other documents which have been ﬁled with the Court and made part of the record over the duration of this

action, the Court believes that it is free to make reference to any item which is part of the record, if the same is

relevant to the matters at issue herein.

2

In an order issued on December 1, 1978, the Court provided that the plaintiffs should accomplish the substitution

of next friends or the disafﬁliation from the KCMSD of their present parent next friends within “thirty days from any

appellate decision disposing of the issues from which an appeal was sought.” (EX 5).

3

These meetings are also reﬂected in the depositions of three of the proposed next friends of the proposed student

intervenors, Luther Marlyn Johnson, Glenda Sue Folson and Charles D. Black, which were ﬁled with the Court on

October 2, 1979.

4

While the order did not expressly grant Mrs. Stark’s requested withdrawal, the Court had noted her motion in the

opening paragraph of the order and merely failed, by oversight, to state its approval of her request. That approval,

however, was made obvious by the Court’s appointment of Mrs. Hodges as the next friend of the Stark children

on April 10, 1979; and thus further expression of approval, while helpful, was unnecessary.

5

The district defendants have noted that Benson employed Ms. Terry Watt as a law clerk from 1974 through July,

1976, and that during that period Ms. Watt was an active member of the “Community Desegregation Task Force”,

an organization which was sponsored by the KCMSD. (See Joint Designation, Part VII, P 8; Ex. 104 & 106-08).

The Court ﬁnds no unethical “taint” in this indirect chain of associations between Benson and the KCMSD; the

2

In an order issued on December 1, 1978, the Court provided that the plaintiffs should accomplish the substitution

of next friends or the disafﬁliation from the KCMSD of their present parent next friends within “thirty days from any

appellate decision disposing of the issues from which an appeal was sought.” (EX 5).

3

These meetings are also reﬂected in the depositions of three of the proposed next friends of the proposed student

intervenors, Luther Marlyn Johnson, Glenda Sue Folson and Charles D. Black, which were ﬁled with the Court on

October 2, 1979.

4

While the order did not expressly grant Mrs. Stark’s requested withdrawal, the Court had noted her motion in the

opening paragraph of the order and merely failed, by oversight, to state its approval of her request. That approval,

however, was made obvious by the Court’s appointment of Mrs. Hodges as the next friend of the Stark children

on April 10, 1979; and thus further expression of approval, while helpful, was unnecessary.

5

The district defendants have noted that Benson employed Ms. Terry Watt as a law clerk from 1974 through July,

1976, and that during that period Ms. Watt was an active member of the “Community Desegregation Task Force”,

an organization which was sponsored by the KCMSD. (See Joint Designation, Part VII, P 8; Ex. 104 & 106-08).

The Court ﬁnds no unethical “taint” in this indirect chain of associations between Benson and the KCMSD; the

Task Force ceased functioning prior to the commencement of this action (Joint Designation, Part VI P 7), and Ms.

Watt’s afﬁliation with Benson was terminated long before his entry into this action.

6

This conclusion is fortiﬁed by the fact that under this Court’s order of December 1, 1978, Joyce Stark, and other

parent next friends, had to cease occupying the roles of next friends or leave their posts on the KCMSD board on

or before March 16, 1979. See Note 2 supra. Benson was no doubt aware of that fact.

7

The district defendants suggest that the KCMSD may in fact have not consented to Freilich’s assistance efforts.

They note that Benson, in a May 21, 1979 letter to Freilich, inquired: “Will you be interested in and have

permission to attend the (May 31, 1979 pretrial) conference?” (Ex. 99) (emphasis added). It is their contention

that Benson’s mention of “permission” was a reference to Freilich’s need to obtain the approval of the KCMSD to

appear at the May 31 conference. The Court disagrees. Freilich’s letter of May 25, 1979 to the Advisory

Committee, seeking an opinion on the propriety of his proposed representation of plaintiffs in light of his

employment at the UMKC Law School, suggests that Benson’s reference to “permission” addressed the need for

approval from UMKC, since Freilich stated therein that he had “been advised by counsel for the University to seek

the advice of the Missouri State Bar Board” on the “employment-conﬂict” issue. (Ex. 58, at 1).

8

Rule 43.4(B) adopts as a governing ethical code the code which has been adopted by the Missouri Supreme

Court. Since 1971 that court has adopted virtually all of the provisions of the ABA Code. See Rule 4, Missouri

Rules of Court (1980).

9

In this connection the Court ﬁnds signiﬁcant the Seventh Circuit’s observation in Woods v. Covington County

Bank: “(T)he more frequently a litigant is delayed or otherwise disadvantaged by the unnecessary disqualiﬁcation

of his lawyer under the appearance of impropriety doctrine, the greater the likelihood of public suspicion of both

the bar and the judiciary.” 537 F.2d at 813. President Jimmy Carter expressed a similar concern in an address he

delivered at the one hundredth anniversary of the Los Angeles County Bar Association on May 4, 1978:

“I am worried about a legal system in which expensive talent on both sides produces interminable delay

especially when delay itself can often mean victory on one side.

Justice should not be forced to obey the timetables of those who seek to avoid it.“

64 A.B.A.J. 840, 842 (1978).

10

The Committee was ﬁrst drawn into this action by Professor Freilich, who requested an advisory opinion on the

propriety of his proposed representation of the plaintiffs against the State of Missouri, among other defendants, in

view of his employment as a law professor by the UMKC Law School, an entity afﬁliated with the State of

Missouri. (Ex. 58). The Committee found that Freilich’s employment posed no obstacle to the proposed

representation. (Ex. 60 & 65).

11

With respect to the district defendants’ concern over public reaction to a decision by this Court which in effect

“overrules” the Committee’s opinion, it should be noted that newspaper articles reporting the Committee’s opinion

observed that “Harold W. Barrack, Advisory Committee chairman, emphasized that the ﬁnal decision on whether

Benson and Freilich could remain in the case rested with the court.” Attorney to Stay on Case, Kansas City Star,

Aug. 16, 1979 (Ex. 87); see also Conﬂict of Interest, Kansas City Star, Aug. 8, 1979 (Ex. 86).

 
 593 F.Supp. 1485 United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al. v.
STATE OF MISSOURI, Kansas City, Missouri School District, and Department of Housing and Urban Development.
No. 77–0420–CV–W–4. |
Sept. 17, 1984.
Synopsis Suit was brought against state, city school district, and other defendants alleging failure to eliminate vestiges of racially discriminatory dual school system. City school district cross-claimed against state. The District Court, Russell G. Clark, Chief Judge, held that: (1) actions by federal Department of Housing and Urban Development in administering federal housing programs in city were not arbitrary and capricious, without rational basis, or done with discriminatory intent or purpose so as to warrant finding that Department contributed to perpetuation of segregated schools in violation of Constitution, and (2) state and city school district violated Constitution by failing to eliminate vestiges of racially segregated dual school system previously required under state law.
Order accordingly.
Attorneys and Law Firms
*1487 Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., Deborah Fins, NAACP Legal Defense & Education Fund, New York City, for plaintiffs.
James Borthwick, Shirley Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for defendant Kansas City Missouri School Dist.
Larry R. Marshall, Sp. Asst. Atty. Gen., Columbia, Mo., for defendant State of Mo.
Marta Berkley, Merril Hirsh, Civ. Div., Washington, D.C., and Richard C. Stearns, Dept. of HUD, Washington, D.C., for defendant Dept. of HUD.
ORDER
RUSSELL G. CLARK, Chief Judge.
Originally, plaintiffs and the KCMSD filed this action jointly alleging various federal and state agencies and surrounding school district officials caused or contributed to cause the racial segregation existing in the metropolitan schools. In 1978 when the KCMSD was realigned as a defendant, plaintiffs made similar allegations against it, although there has been, during the course of this litigation, a “friendly adversary” relationship between them. (See, *1488 e.g., stipulations of fact, filed February 21, 1984).
The KCMSD cross-claimed only against the state for its failure to eliminate the vestiges of its prior dual school system. For additional background, see this Court’s orders of June 5 and July 16, 1984.
Jurisdiction is premised on 28 U.S.C. §§ 1331, 1343(3) and (4), 136, 2201 and 2202. Plaintiffs also allege claims under 42

U.S.C. §§ 1983 and 2000d and under the United States Constitution, 14th Amendment. Declaratory and injunctive relief was sought against all defendants.
After hearing the presentation of plaintiffs’ evidence and before any defense, the Court dismissed the suburban school districts. Plaintiffs simply failed to show that those defendants had acted in a racially discriminatory manner that substantially caused racial segregation in another district. Milliken v. Bradley, 418 U.S. 717, 745, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). See order filed June 5, 1984.
HEW was also dismissed for plaintiffs’ failure to prove the agency acted with racial animus or abused its discretion in the enforcement of Title VI. See order filed July 16, 1984. The KCMSD presented its cross-claim, Missouri and HUD defended, plaintiffs and the KCMSD rebutted, Missouri presented surrebuttal and, on the 92nd day of trial, the Court refused to hear sur-surrebuttal. Thus, on June 13, 1984, the evidence ended.
The claims addressed by this order are plaintiffs’ claims against the KCMSD, the State of Missouri and HUD and the crossclaim of KCMSD against the State of Missouri. For the reasons that follow, the Court finds in favor of plaintiffs against the KCMSD and the State of Missouri; in favor of KCMSD against the State of Missouri; and against plaintiffs and in favor of HUD.
THEORIES AND DEFENSES
Plaintiffs allege, and Missouri has admitted, it mandated racially segregated schools before 1954. It is plaintiffs’ position that after 1954 Missouri failed to take affirmative steps to eliminate the vestiges of its prior dual school system. In fact, plaintiffs argue, Missouri acted to perpetuate racial segregation by enforcing restrictive covenants and other unfair housing practices, by discriminatorily relocating blacks who were displaced by highway development and urban renewal, and by supporting racially-identifiable interdistrict arrangements (e.g. vocational and special education area schools).
Against the KCMSD, plaintiffs claim district officials adopted ineffective policies to change the segregative patterns that were developed or developing. In an exculpatory allegation plaintiffs allege the KCMSD could not balance the racial population of students in its district due to impaction of minorities, white flight, housing policies of other agencies and “other factors beyond the capacity of that district to manage.” (Amended complaint, May 18, 1979 ¶ 20).
Regarding HUD, plaintiffs allege the agency abrogated its affirmative duty to prevent and reduce racial segregation and instead intentionally increased segregation by failing to consider racial isolation in its site location for low income projects and locating most of the projects within the KCMSD; establishing express guidelines before 1948 requiring racial segregation and permitting such practices after that date; funding local housing agencies which did not prevent segregation in their policies or practices; and providing funds and insurance to suburban areas where access to blacks was restricted. These policies and practices, plaintiffs claim, racially impacted the KCMSD schools.
In its cross-claim against Missouri1 the District alleges the State has not fulfilled its constitutional obligation to take action to dismantle its prior dual school system *1489 and is primarily liable for the existing segregation in the KCMSD. Not only has Missouri failed to take necessary remedial measures to eliminate past segregation but the District charges the state has acted to perpetuate segregation. To the extent the Court might find the KCMSD to be internally segregated, the District alleges the State is largely responsible for such a condition and should be required to contribute financially to any remedial plan the Court might order as relief against the KCMSD. Further, the District charges the State has caused a high concentration of economically and socially disadvantaged minority students within its boundaries, a condition which increased student expenses and decreased the District’s tax base. Concomitantly, the KCMSD alleges the State’s actions or omissions caused the surrounding districts to be predominantly white.
For relief, therefore, the KCMSD seeks a court order requiring the State to propose and assist (financially and otherwise) in the implementation of a plan which will eradicate any vestiges of the State’s past dual school system which includes the racially identifiable character of the KCMSD and the surrounding suburban districts.
Plaintiffs claim the only effective way to “protect and preserve” the constitutional rights of plaintiffs is to judicially mandate the “reassignment of students among all districts in the metropolitan area and/or to realign or reconstitute the defendant school districts,” with compensatory payments made by the State to fund the reconstituted districts. (Plaintiffs’ amended

complaint, May 18, 1979 ¶ 25). Plaintiffs request defendants submit a plan to eliminate the racial identifiability of the KCMSD and other school districts in the metropolitan area. To facilitate adoption of such a plan, plaintiffs seek to enjoin federal agencies from funding state and local entities until the plan is submitted. Plaintiffs seek declaratory and injunctive relief against the federal defendants and statements from all defendants on their future plans to reduce and eradicate segregative conditions.
Missouri has argued in defense that it has met its affirmative duty to the extent of its statutory power and that local entities have the sole authority to effect the changes plaintiffs seek, e.g. redrawing district lines. Moreover, Missouri charges the racial isolation that exists is not vestiges but is the product of resegregation from natural demographic trends. Finally, Missouri argues the Kansas City area is typical of cities nationwide that had no dual school system; therefore the racial patterns cannot be attributed to the State’s past conduct.
Procedurally, Missouri argues that plaintiffs and the KCMSD pleaded only interdistrict claims and seek only interdistrict relief, which claims were denied by this Court’s order dismissing the suburban school districts. The Court disagrees. In its order of June 1, 1981, the Court addressed both the inter and intra-district claims raised by the KCMSD’s cross-claim. Neither plaintiffs nor the KCMSD’s pleadings are defective in this regard. In any event, and contrary to Missouri’s allegations, plaintiffs moved to amend their complaint to conform to their contention interrogatories (filed October 17, 1983 Doc. No. 351). The Court deferred ruling the motion preferring to address the contentions individually as they arose during the trial. (Tr. 35). Insofar as plaintiffs’ evidence (adopted by the KCMSD Tr. 17,275) stated intradistrict claims, the motion is hereby granted.
On February 21, 1984, plaintiffs and the KCMSD entered into a stipulation of fact which the Court holds is only binding between them; however, the stipulations will be controlling, unless otherwise stated by the Court, regarding the racial composition and enrollment in the District past and present, its 1955 through 1977 “desegregation” plans, its transfer policy, the Havighurst and Hazlett reports and faculty composition. The District stipulated, inter alia, that before 1977 it was not a unitary district or in compliance with federal regulations. (See, also, Tr. 24). Nor does the District contest the HEW findings of noncompliance. It does state, however, contrary *1490 to plaintiffs’ contentions, that it did not operate with discriminatory intent after 1954.
HUD argues in defense that it does not select the sites for low income projects and that said projects are dispersed throughout the metropolitan area in any event. HUD also maintains it does not relocate people, but merely monitors the relocation activities of other agencies and has made adjustments where necessary. Regarding FHA, the government insists there are no vestiges of its past practices and moreover that FHA’s involvement in the context of all housing transactions is de minimis. HUD concludes it has not abused its discretion and that plaintiff’s evidence fails to show a causal link between schools and HUD’s activities.
FINDINGS OF FACT
The State admitted, and the Court judicially noticed that Missouri mandated segregated schools for black and white children before 1954. See Mo. Const. Art. IX, Section 1(a) (1945) (rescinded 1976) and §§ 163.130, 165.117 R.S.Mo. (repealed 1957). These provisions were not immediately and formally abrogated after the Brown decision was announced; however, the State’s Attorney General issued an Opinion in 1954 declaring them unenforceable. (P. Ex. 2232). The statutes were repealed in 1957 and the constitutional provision was finally rescinded in 1976. This historical background is recounted in more detail by the courts in Adams v. United States, 620 F.2d 1277, 1280–81 (8th Cir.) cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980); and United States v. Missouri, 363 F.Supp. 739, 746–47 (E.D.Mo.1973) aff’d 515 F.2d 1365 (8th Cir.) cert. denied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975).
Each school district in Missouri participated in this dual school system before it was declared unconstitutional in Brown I. Districts with an insufficient number of blacks to maintain the state-required separate school made interdistrict arrangements to educate those children. Undeniably, some blacks moved to districts, including the KCMSD, that provided black schools. (Tr. 2043, 4557–59). As the Court previously noted, however, this movement was insignificant when compared to the total black enrollment in the KCMSD. (Tr. 1773, D.Ex. K2). Accordingly, no interdistrict constitutional violation by any suburban school district was shown. (See order filed June 5, 1984).
Dr. James Anderson, plaintiffs’ expert historian, opined the black migration into Kansas City was from a depopulation of

blacks in the surrounding three-county area moving to the city primarily for schools. In its opinion of June 5, the Court rejected Dr. Anderson’s opinions as contrary to the weight of the evidence and as being without sufficient foundation. The Court finds the greatest influx of blacks came from southern and border states and that they migrated because of a host of factors.
This in-migration coupled with a high birth rate (Tr. 16,509–510) resulted in the Kansas City black population doubling from 41,574 in 1940 to 83,740 in 1960. (Id.)
Before 1954, access to schools was one of many reasons some blacks chose to move into the KCMSD. (Tr. 16,688, 14,793– 94, 16,691–93, 16,835). Economics and job opportunities were also major factors in black migration. (Tr. 595, 600, 676–78, 713, 796, 911, 914, 1052, 1089, 1103, 1111, 1163, 1307, 1312, 1318, 1552, 1579–80, 1680–81, 1728, 2781, 3214, 3267, 18,527, 18,550, 16,842). Often jobs would pull migrants to the city and then availability of schools would influence, more specifically, what housing choice would be made within the city. (Tr. 16,688).
Dr. John Kain, plaintiffs’ expert on the determinants of residential location, predicted dispersed racial residential patterns would exist in Kansas City if race were not a factor in housing choices. (Tr. 7515–7529). Dr. Kain used three indicators to predict housing choice: income, type of family, and whether there were school-aged children. (Tr. 7489, P. Ex. 1265 series). His conclusion was that absent housing *1491 discrimination blacks would be dispersed throughout the metropolitan area. (Tr. 7719, P. Ex. 1265G). Dr. Kain discounted or rejected other factors such as job location, ethnic clustering and personal preference. (Tr. 7473–76, 7846). The Court disagrees to the extent Dr. Kain rejected the possible influence of other factors in his analysis.
The intensity of segregation is demonstrated by the fact that the average black family lives in a census tract that is 85% black while the average white family lives in a census tract that is 99% white. (Tr. 14,739, 14,745). Regardless of their motivation for coming, once here, blacks settled in the inner city or, the “principal black contiguous area.” (Tr. 10,837–38, 10,847–49). Plaintiffs’ witnesses blame this black concentration (and ensuing white flight from it) on the dual school system, the enforcement of restrictive covenants, site and tenant selection policies for low income housing and other government practices and policies as well as on private discrimination. (Tr. 12,974, 12,976, 13,024, 13,032–13,035, 13,040–41, 13,043, 13,046–47, 13,058–62, and 13,123–24).
Not surprisingly, Missouri defended with experts whose opinions declared economics, accessibility to jobs, spacial barriers, personal preference and private discrimination were the factors affecting black movement. (Tr. 19,102, 19,104–05). They all discounted or totally rejected schools and the dual school system as having any effect. (Tr. 18,620–24, 18,627–28). To the extent those experts deny the influence of schools in housing patterns, particularly in the context of Missouri’s legacy, their opinions are rejected.
The Court finds the dual housing market (Tr. 12,974–76), which still exists to a large degree today (Tr. 12,008–09, 12,339), impacted blacks in the KCMSD and consequently caused the public schools to swell in black enrollment. The Court finds there is an inextricable connection between schools and housing. “People gravitate toward school facilities, just as schools are located in response to the needs of the people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner city neighborhoods,” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 20–21, 91 S.Ct. 1267, 1278–1279, 28 L.Ed.2d 554 (1971).
There were many witnesses called and literally weeks of testimony concerning the cause of blacks settling in the inner city of Kansas City and within the KCMSD. This testimony was relevant as to the suburban school districts and HUD. It was not relevant on the claims of plaintiffs against the KCMSD and the State of Missouri because those defendants had an obligation to the black students regardless of why they settled in the school district. As will hereafter be pointed out, the Kansas City District school system had never been totally integrated. In Davis v. East Baton Rouge Parish School Bd., 721 F.2d 1425 (5th Cir.1983), the school board tried to justify its one-race schools on the basis that they resulted from demographic patterns for which the school officials had no responsibility. The Court held that the Board’s argument failed, stating:
The Board’s reliance on housing patterns as justification for the continued existence of one-race schools is not only factually but legally unsound....
Until it has achieved the greatest degree of desegregation possible under the circumstances, the Board bears the continuing duty to do all in its power to eradicate the vestiges of the dual system. That duty includes the responsibility to adjust for demographic patterns and changes that predate the advent of a unitary system. [citations omitted]. The racial isolation of some schools, whether existing before or developing during the desegregation effort, may render disestablishment of

certain one-race schools difficult or even impossible. Until all reasonable steps have been taken to eliminate remaining one-race schools, however, ethnic housing patterns are but an important factor to be considered in determining *1492 what further desegregation can reasonably be achieved; they do not work to relieve the Board of its constitutional responsibilities.
Davis, 721 F.2d at 1435. The Court, therefore, will focus on the anatomy of the KCMSD.
Plaintiffs allege the KCMSD could have done more than it did to stably integrate its schools. (Tr. 14,892–93). Plaintiffs are quick to point out, however, that the District was faced with a pervasive system of segregation and would more than likely end up “resegregated” like all major cities. Id.
The Court notes that several witnesses used the term “resegregated” when describing racial change in the schools and housing patterns, usually changing from predominantly white to predominantly black. That may be correct terminology in the context of their testimony but the Court finds it has no legal significance. A segregated District cannot become resegregated until it is first integrated. The KCMSD has not yet become integrated on a system-wide basis.
As a consequence of their failure to do more, plaintiffs allege there are lingering effects of the dual school system. The District also blames the prior dual system for its present status, maintaining the State did nothing to relieve the conditions it created. Several witnesses confirmed the conclusion reached by the Supreme Court in Brown I that forced segregation ruins attitudes and is inherently unequal: “[Segregation] may affect their hearts and minds in a way unlikely ever to be undone.” 347 U.S. at 494, 74 S.Ct. at 691. (Tr. 16,414, 16,416 16,422). The general attitude of inferiority among blacks (Tr. 1,920–21) produces low achievement (Tr. 16,573) which ultimately limits employment opportunities and causes poverty. (Tr. 2,453–56, 16,414, 16,457–58). While it may be true that poverty results in low achievement regardless of race, (Tr. 16,508), it is undeniable that most poverty-level families are black. (Tr. 16,422). The District stipulated that as of 1977 they had not eliminated all the vestiges of the prior dual system. (Stipulation introduction filed 2/21/84). The Court finds the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District.
Racial Composition of the School District: In the 1954–55 school year, 18.9% of the District’s 63,487 students were black (stipulation 2, Def. Ex. K–2). Because the State compelled separate schools for blacks, the District established and maintained segregated facilities with segregated staffs. In 1954, the KCMSD operated 90 schools of which 14 elementary, 1 junior-high vocational school and 1 high school-junior college were for black students. (Stipulation 5, Def. Ex. K–2). Those schools were located in the black-concentrated areas (Stipulation 6) and as that community expanded in a southeast direction so did the black schools. (P. Ex. 20, 740, 741, 742 map series, 1653; Tr. 3,577–78, 12,990–92).
The white students in the District during this period attended one of the 62 elementary schools, 3 junior high schools, eight high schools (1 with a vocational school) or the junior college. (Stipulation 10, Def. Ex. K2).
The KCMSD was majority white in enrollment until 1970 (Def. Ex. K–2, Tr. 17,009), and could have achieved a mathematical racial balance in its schools until that year. (Tr. 17,010–12). Instead, the District chose to operate some completely segregated schools and some integrated ones. (Def. Ex. K–2). Regardless of some school officials’ feelings that a more mathematically oriented plan would be less stable Tr. 17,205–207, the District’s chosen path was ineffective in integrating its school system.
As of 1977, 25 one-race schools under the pre-1954 system remained 90% or more of the same race. (Def. Ex. K54, Stipulation 85, 86; Tr. 16,980). In addition, there were four black schools from the dual system that were still predominantly black when they closed in 1968. (Tr. 16,999–17,001). In summary, as of 1974, 20 years after Brown I, 39 schools were more than 90% *1493 black; another 38 had 10 to 90% black enrollment. Eighty percent of all blacks in the District attended schools that were 90% black; only 19% of the blacks attended a school that was 10 to 90% black. (Stipulation 84).
With the adoption of Plan 6C (discussed infra ) in 1977, the District eliminated the 16 entirely white schools and reduced the number of 90 + % black schools to 28. (Tr. 16,567). During the 1983–84 year, no school had less than 30% black enrollment; 24 schools however are racially isolated with 90 + % black enrollment. (Tr. 16,568, Def. Ex. K–2). The Court finds the District did not and has not entirely dismantled the dual school system. Vestiges of that dual system still remain.
Liberal Transfers. During the pre-1954 days, the District utilized a liberal transfer policy within each system, (Stipulation 11), allowing students to transfer to any open (uncrowded) school. (Stipulation 23, 24, 56; Tr. 16,940). Blacks did not use the

liberal transfer policy as frequently as whites. (Tr. 2,010, 3,544; Stipulation 61). The Court finds the liberal transfer policy was not adopted or maintained to foster segregation even though it allowed whites living in racially transitional neighborhoods to transfer within the District to whiter schools. (Stipulation 57, Tr. 16,941–42).
Critics of the transfer policy blame its liberality for the racial turnover in schools by not compelling whites in that attendance area to attend that school. (Tr. 6,604–05; Stipulation 50, 56; P. Ex. 2780). Others, however, attribute the policy with fostering stabilization in transitional neighborhoods, slowing white flight and thus aiding integration. (Stipulation 56; Tr. 3,025–26, 13,663–64).
In the years following Brown, the District attempted to accommodate varying views regarding the effect of the transfer policy. (Stipulation 58, 59, 60, 61 and 62) and made adjustments in both the liberality and review of the proposed transfers. (Tr. 16,556–57). When the District proposed abandoning the liberal transfer policy in order to satisfy federal OCR officials and retain federal funds, an integrated neighborhood organization sought to enjoin the abandonment fearing it would produce more white flight. (Tr. 13,662–64). The District did however revoke the policy pursuant to OCR directives (Tr. 13,667). In 1973, race was considered in transfer requests, giving preference to transfers that would promote integration. (Tr. 13,738). The Court finds the evolution of the transfer policy was not motivated by racial animus.
Neighborhood Schools: In response to the Brown II decision in 1955, the District adopted an assignment system known as the neighborhood school plan. (Stipulation 12, 13). Pursuant to this plan, the separate racial zones were eliminated and attendance areas were drawn around each school based on the buildings’ capacity, distances involved, and other factors like safety, transportation and terrain. Id. By calculating the number of students in each attendance area, the District projected enrollment and expected racial composition for its various schools. Contrary to its predictions, many of the previously black schools opened with more than 92.5% black enrollment; 921 whites were predicted at these schools yet only 117 were present during the official census taken that fall. (Stipulation 22). White enrollment in the District decreased by approximately 1,200 between 1954–55 and 1955–56. Id. (P. Ex. 582, 584, 584B, 585, 586, 740, 743, 744). Because most of the schools were in racially segregated neighborhoods before 1954, the Court finds adoption of the neighborhood school concept did not substantially change the segregated school system.
Attendance Zones: Following Brown, the District made frequent shifts in the attendance areas of elementary and secondary schools as the population shifted, depending upon the capacity of various buildings. (Tr. 3,028; Stipulation 16 through 20, 29 through 31, 34, 37, 41, 43, and 48). In June, 1963, the District’s proposed attendance zone changes were challenged by a group of residents who charged the changes would resegregate the schools and *1494 neighborhoods. (Stipulation 49). The Board in response, modified its plans and adopted a policy statement recognizing that integration was an important factor to be considered in the District’s decisions. (Stipulation 50 through 52). Nevertheless, the attendance zone changes did not achieve system-wide integration.
In addition to the regular attendance zones, various “optional” zones were utilized to allow students in those areas to choose among several schools. (Stipulation 31, 34, 51). Many of those optional zones existed before 1954, (see P. Ex. 739, 740; maps) and continued thereafter. (Stipulation 34). Regardless of the intent, e.g. to relieve overcrowding, (Tr. 2,011–13, 16,937–38), the Court finds the use of these optional zones, coupled with the liberal transfer policy, did not aid to integrate the District; to the contrary, it allowed attendance patterns to continue on a segregated basis.
Intact Busing: From the mid-1950’s through the 1970’s the District was faced with overcrowded conditions. (Tr. 16,948–49; 6,583, 6,548–49, 7,305–06). Besides adjustments to attendance zones, in the mid-1960’s, the District also adopted a busing program. The Board declared that the busing program was not for integration but was required to relieve overcrowded conditions at some schools. (Stipulation 53). While the Board added it would aid integration when possible, it chose to bus entire classrooms of black students to predominantly white schools but to keep them as an insular group, not allowing them to be mixed with the receiving population. (Tr. 7146–47, 8,612). In the face of civil rights protests, in 1965, the bused students were integrated into the regular enrollment. The Court finds the District’s use of intact busing had a segregative intent and effect. Because the practice was stopped in the 1960’s, however, no continuing violation exists. Certainly black children subjected to that experience well remember the feelings of isolation and inferiority obviously produced by the practice.
Middle School: In 1965, a bond issue was passed to build three new schools in order to relieve the overcrowding in the Central area. (Stipulation 63). Because local civil rights groups protested the proposed site locations as being segregative and ineffective to relieve overcrowding, the District hired a consultant, Dr. Havighurst, to make a report and recommendation for the new sites. (Stipulation 64). His final report proposed, inter alia, a middle school at the Paseo and Brush Creek to stabilize

a transitional neighborhood and retain its integrated character. (Stipulation 64, 67). After 1 ½ years of debate, the Board rejected this portion of Dr. Havighurst’s recommendations stating there was a lack of funds and it did not appear that integration could be maintained. (Stipulation 67). Some blacks viewed the District’s failure to adopt the middle school as a step toward continuing the segregated school conditions. (Tr. 3017–20). The Court finds that reasonable minds could differ as to the effect and ability of the middle school to help integrate. (Tr. 16,478–79).
Concepts for Changing Times: At the instance of several community and civil rights groups, Superintendent Hazlett, in 1968, presented a document “Concepts for Changing Times,” in which various proposals for district-wide integration and stabilization were suggested. (P. Ex. 414, 414A, 2603; Stipulation 69). The Board appointed a bi-racial committee (committee of 30) to study the “Concepts” and make recommendations. The Committee generally endorsed the ideas (P. Ex. 414E through K, 2780U and V) however, the Board never voted on the proposals and none were otherwise acted upon. (Stipulation 69). In fact there was no district-wide desegregation plan adopted by the KCMSD until Plan 6C was implemented in 1977– 78. Id.
As indicated supra, as the black population expanded from the central city in a southeast direction, neighborhoods and schools experienced a racial transition. As blacks moved, or were bused to the schools, in the area, whites moved out. (Tr. 8715–16, 8721–30, 9228–32, 9235). Several community groups attempted unsuccessfully, to maintain an integrated neighborhood and stabilize the often rapid transition. (Tr. 9,347–48, 9,395–96, 13,631–32).
*1495 In 1965, the Kansas City Commission on Human Relations issued proposals to stabilize the southeast area. (Stipulation 70). Many of which were adopted by the KCMSD. Racial turnover continued unabated, however, with the efforts proving to be little more than a thumb in the dike. (Stipulation 71).
It is interesting to note that in the 1958–59 school year there were 52,491 white students in KCMSD. It had 14,952 black students which comprised 22.5% of the total enrollment. The highest enrollment in the past 30 years occurred in 1967–68 when there was a total enrollment of 74,997 students. The largest enrollment of blacks occurred in the 1971–72 school year when there was a total of 35,620 black students enrolled. In the 1983–84 school year the total enrollment in the KCMSD was 36,650 students, 10,022 whites and 24,803 blacks with a percentage of 67.7% black. The total enrollment from 1967–68 to 1983–84 has been reduced more than 50%. Enrollment of whites between 1958–59 and 1983–84 has been reduced by 80%. The black enrollment from 1971–72 to 1983–84 has been reduced by approximately 30%.
Plaintiffs contend that the State established a system of area vocational schools that effectively segregated students on the basis of their race and that the methods of funding these schools were racially discriminatory. The Court addressed this issue in its June 5 order dismissing the suburban defendants.
The Kansas City Technical Center is an AVTS for all high schools in KCMSD. It was the first AVTS formed in the Kansas City area. It served all students in the KCMSD regardless of race. There is no proof that the formation of this school has prolonged or contributed to the segregation in the schools in the KCMSD. DESE administers vocational educational funds without regard to race and all districts are treated alike. (Tr. 17,939).
The State has been of some aid to school districts in the State which have segregation problems. When a Missouri school district received an OCR complaint, the DESE sent a letter to the district offering the department’s assistance. (Tr. 17,464). A Technical Assistance Unit (TAU) was established, funded by federal funds, which provides assistance to school districts involved in voluntary or court ordered desegregation upon a district’s request. (Tr. 17,667). It also notifies the eligible districts of other services which can be provided under the conditions of the federal grants. The TAU proposal for funding to the federal government explicitly names St. Louis and Kansas City school districts as priority areas for technical assistance. (Tr. 17,684). KCMSD has requested and been provided TAU assistance. (Tr. 17,682, 17,785; St. Def. Ex. M–2).
The DESE also provides valuable assistance to urban school districts through its Urban Education Section. (Tr. 17,592–604).
Claims Against HUD
Plaintiffs have made numerous claims that the Department of Housing and Urban Development (HUD) violated its responsibilities under the Fifth Amendment of the United States Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601, et seq., and the applicable housing laws

and regulations.
Title VI, § 601 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d provides “no person in the United States shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Title VIII, 42 U.S.C. § 3601 (known as the Fair Housing Act) declares that “it is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.” The Act contains a number of detailed provisions banning discrimination on the basis of race, color, religion, sex or national origin in the sale or rental of housing, the financing of housing and the provision of brokerage services. See, 42 U.S.C. §§ 3604, 3605, 3606. The Act further makes it unlawful to interfere *1496 with any person’s exercise of enjoyment of these rights. 42 U.S.C. § 3617.
Before analyzing some of the myriad claims made by plaintiffs it may be helpful to briefly summarize the basic goals of the federal housing programs. The United States Housing Act of 1937, 42 U.S.C. §§ 1437–1437j, was originally enacted to remedy the unsafe and unsanitary housing conditions and the acute shortage of housing for families of low income. It authorized HUD to make loans and annual contributions to local public housing agencies (PHAs) to develop, operate and maintain low rent public housing projects for families with low income. 42 U.S.C. §§ 1437b–1437c. Congress sought to achieve this goal by vesting the responsibilities of the administration of these housing programs in local housing agencies.
Under the 1934 Act, FHA guaranteed or insured payment of residential mortgage loans for those of low income who qualified, making it possible for low income people to purchase homes with very low down payments and interest rates below the national average. In 1954 the Act was amended under 12 U.S.C. § 1751(d)(3) and (4) to provide mortgage insurance to developers, including public bodies, of multi-family rental or cooperating housing for moderate income or displaced families. The Housing Act was again amended in 1959, 12 U.S.C. § 1715v to make mortgage insurance available to facilitate the financing of rental housing for the elderly or handicapped.
The Act was amended in 1974 by the Housing and Community Act of 1974 which had as part of its objectives the elimination of slums and the renewal of older urban areas. 42 U.S.C. § 5301. It specifically recognized that the concentration of persons of low income in the central cities was creating social, economic and environmental problems. In 1977, 42 U.S.C. § 1439 was amended to place greater emphasis on local housing assistance plans. The primary goal of the federal housing program is to provide decent housing for the poor; however, its secondary concern is to develop and maintain stable, desirable urban communities.
The § 235 program [12 U.S.C. § 1715z 1968] combined mortgage insurance with HUD mortgage subsidy payments to the lender in amounts determined by the buyer’s income. The § 236 program was authorized in 1968, 12 U.S.C. § 1715z–1. In addition to mortgage insurance HUD provided interest subsidies to nonprofit, limited dividend or cooperative programs to reduce interest rates to an extremely low level.
Section 8, 42 U.S.C. § 1437f, (Housing and Community Development Act of 1974) provided for rental subsidies to lower income persons by payments directly from HUD to landlords including public bodies. Under § 8 the rental subsidy is tied to the tenant not to the property. In other words the § 8 certificates are HUD’s guarantee of the rental subsidy. The tenants are responsible for finding their own housing although the administering housing authority may be able to direct the certificate holder to landlords who have indicated a desire to have § 8 tenants. If the prospective landlord does not agree to participate in the program, the tenant must take the certificate somewhere else or forego the subsidy. Also if the certificate holder moves from one qualified apartment to another, the lessee takes the certificate along.
Scope of Judicial Review
Plaintiffs have not alleged nor have they met the statutory prerequisites for filing a private action under Title VI, § 2000d et seq., nor under Title VIII, 42 U.S.C. §§ 3610 or 3612, requiring such complaint to be filed within 180 days of the alleged discrimination.
Plaintiffs have properly proceeded on the basis that HUD has violated their rights to “the equal protection of the laws” as guaranteed by the Fifth Amendment of the United States Constitution. Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

[1] [2] The standard of review for HUD’s actions are the same as those for *1497 HEW which were set forth in this Court’s order of July 16, 1984 (pp. 21 and 22). Briefly, there must be a showing that in administering the federal housing programs in the Kansas City area its actions were arbitrary and capricious, without a rational basis, it did so with discriminatory intent or purpose, and there is a causal connection between the violation and the injury, the segregated schools in the KCMSD. City of Memphis v. Greene, 451 U.S. 100, 119, 101 S.Ct. 1584, 1596, 67 L.Ed.2d 769 (1981); Washington v. Davis, 426 U.S. 229, 239–241, 96 S.Ct. 2040, 2047–2048, 48 L.Ed.2d 597 (1976); Alschuler v. Dept. of Housing and Urban Development, 686 F. 2d 472 (7th Cir.1982); Clients Council v. Pierce, 711 F.2d 1406 (8th Cir.1983). Discriminatory purpose “implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part ‘because of’ not merely ‘in spite of’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979).
[3] Plaintiffs claim that FHA’s appraisal practices prior to 1949, and even thereafter, contributed to segregated housing in the Kansas City area. Clearly, FHA’s appraisal manuals for 1936 (P. Ex. 1303) and 1938 indicated racial restrictive covenants would tend to insure a stable community thus enhancing the value of the property. In 1947 and thereafter emphasis was placed on such considerations as to whether there was a probability of a change in occupancy, that in a change from one user group to another the successor group exhibits a lower income level. The manual also pointed out that a neighborhood would probably remain more stable where there was compatibility among the neighborhood occupants. (P. Ex. 1305). By 1947 reference to racial restrictive covenants was deleted from its manual and it has refused to insure the mortgage on any property which contained such restrictions. Insurance of mortgages by FHA incurs a risk of loss of federal funds. Racial restrictive covenants were intended to cause housing segregation. While such covenants were brought about by private action they were enforced by the courts of Missouri until after the case of Shelly v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 was decided in 1948. Even though such covenants were discriminatory without a doubt they did have an effect on the market value of residential property. FHA did not enforce the covenants; however, it accepted the fact that Missouri courts did enforce them. FHA was faced with this reality and could not ignore it in making a determination as to the maximum risk which should be incurred with funds of a federal agency. In view of this FHA did not act arbitrarily nor capriciously in giving these covenants consideration in arriving at an appraisal. As demonstrated by Ex. P. 22, the areas most affected by these covenants soon were occupied by blacks after the covenants were no longer enforceable. There was no evidence showing the number of FHA insured mortgages in the restricted areas.
Prior to 1950 FHA insured approximately 15,000 homes in the KCMSD. (Ex. FD37A). Between 1950 and 1980 there were in excess of 2,000,000 housing turnovers in this area. If FHA’s appraisal practices prior to 1950 had any effect on present racial housing patterns, it would, at most, be de minimus.
[4] Plaintiffs claim that HUD violated its Title VI and VIII obligations when it continued to fund the Kansas City Land Clearance for Redevelopment Authority (LCRA) after it knew that the LCRA was following racially discriminatory practices. In 1953 the LCRA was established by Kansas City, Missouri to administer urban renewal programs under the Housing Act of 1949. HUD provided federal funds to assist in urban renewal and neighborhood development activities. (Ex. FD204C). After receiving the complaint that LCRA was practicing racial discrimination in its relocation activities, HUD made a Title VI complaint investigation. In that investigation HUD found that blacks were being located primarily in the southeast part of Kansas City while whites were relocated throughout the Kansas City area. (P. Ex. 2913A). As a result of the Title VI investigation, *1498 LCRA was required immediately to cease such discriminating practices and to file reports with HUD so that HUD could monitor their referrals. The reports were to be filed with HUD every 90 days (Ex. P2913A). LCRA failed to file its reports in a timely fashion. (Tr. 11,601). The reports that were filed showed no significant improvements in LCRA’s referral practices. As a result in June, 1973, HUD refused to fund the 1974 Neighborhood Development Program (NDP) unless the city assumed the responsibility for all relocation services. (Ex. FD204C). In June, 1973, HUD, LCRA and the City of Kansas City entered into a cooperation agreement by which the City assumed the responsibility for relocation under the urban renewal and neighborhood development plan. As part of this agreement each relocatee was to receive at least one referral outside of the “inner city.” (Ex. FD239). The cooperation agreement required the City to file reports at least twice a month with reports to include the race of each displaced person, the number of dependents and the address of housing referrals. (Ex. FD239). Following this agreement, approximately ⅓ of the housing referrals provided to black relocatees were outside of the inner city area. (Ex. P322A, Tr. 10,991). The relocation reports show that between 1971 and 1976 only 174 black households were relocated during the six year period. (Ex. P622B). The Court finds that in working out the cooperation agreement between the LCRA and the City of Kansas City, Missouri, HUD acted in a reasonable and responsive manner. To have cut off funds would have penalized those most in need of housing, that is the people of low income, and could not have been done absent a lengthy Title VI investigation. The Court finds that by entering into the cooperation agreement between HUD, LCRA and the City of Kansas City, their actions were not arbitrary or capricious and did not violate plaintiffs’ fifth

amendment rights.
Title VIII. Plaintiffs contend that within the KCMSD, § 8 certificate holders are segregated by race. The Housing Authority of Kansas City (HAKC) administers the § 8 assistance program in Kansas City, Missouri in which HUD provides housing assistance payments to HAKC for § 8 participating tenants. (Tr. 12,197, 12,364). HAKC’s § 8 program presently has 1,458 certificates in use with 16% white and 84% nonwhite. (Ex. P1481B). There are public housing authorities administering the § 8 assistance housing programs in Independence, Liberty and Lee’s Summit, Missouri. These PHA’s presently have 619 certificates in use with the racial composition 98% white and 2% nonwhite. (Ex. P1481A). By the nature of the § 8 program, participants may request a certificate from any issuing jurisdiction and then locate housing of their own choosing within the jurisdiction issuing the certificate. (Tr. 20,455). There was no evidence that HUD or the PHAs attempted to direct § 8 certificate holders as to the location of the housing which they chose.
Under the Public Housing Act of 1949, P.L. 81–171, 63 Stat. 413, Congress recognized that the problem of providing decent housing for low income families was “clearly related and practically inseparable from the problem of clearing urban slums.” In other words, the 1949 Act created a slum clearance program. Congress provided loans and capital grants to clear the land and then make it available for redevelopment in accordance with locally devised plans for the area. This was reaffirmed by Congress in the 1954 Housing Act, P.L. 83–560, 68 Stat. 590. The urban renewal projects were required to be located in areas for which the community had a plan for both slum clearance and redevelopment. HAKC has nine projects for family occupancy under management containing a total of 2,270 units. (Ex. P1609). HAKC constructed seven family projects between 1952 and 1963 all either within the model cities or urban renewal areas. (Ex. P2917). The Housing Authority had two other family projects containing 50 units each consisting of single family homes located throughout Kansas City, Missouri. (Ex. P1609).
[5] At the outset HAKC followed the “freedom of choice plan.” In 1968 HAKC adopted a new assignment plan in accordance *1499 with HUD regulations which required applicants to select a suitable vacant unit from among the three development locations with the highest vacancy rate or be removed to the bottom of the waiting list. (Ex. P1596FFF). In 1976 HUD made a Title VI investigation of HAKC’s assignment practices. It found that HAKC was allowing applicants to choose a suitable vacant unit in any development rather than giving a choice only of a unit among the three developments with the highest vacancy rate. (Ex. P1596FFF). Following the investigation, HAKC and HUD entered into a compliance agreement in which HAKC adopted a new tenant assignment policy. This policy required that applicants be assigned to suitable units at one of the three developments with the highest vacancy rate. In addition it provided for a minority preference housing option. This feature of the plan allowed for the immediate placement of any applicant or transfer of any resident to a development in which the applicants or tenants racial group comprised 33 ⅓% or less of the development’s population. (Tr. 12,225, Ex. P1596GGG). The Court finds that the location of the public housing was in accordance with the congressional acts and that HUD’s monitoring of the program was neither arbitrary nor capricious and that the compliance agreement entered into between HAKC and HUD was reasonable.
Plaintiffs also contend that HUD assisted multi-family housing caused the overwhelming majority of these units to be located within the KCMSD. The Court finds that HUD followed a balanced housing policy and attempted to insure that assisted housing located in the inner city area was balanced by assisted housing projects in the suburban areas. (Tr. 20,657). HUD reviewed all proposals for multi-family housing projects to include racial characteristics of the project area. (Tr. 20,408–09). HUD had disapproved some proposed projects because they were located in areas of minority concentration. (Tr. 20,563–68). The evidence indicates that there has not been a lack of balance between federally assisted housing within the KCMSD and the suburban areas. Plaintiffs’ Exhibit 27B reflects that there were 6,832 HUD insured or subsidized multi-family units within KCMSD and 9,872 such units in the 11 suburban school districts (which have been dismissed in this action). This indicates that HUD did follow a balanced housing policy. HUD published site selection regulations known as “Project Selection Criteria”, 24 C.F.R. § 200.700 et seq. Without setting forth the criteria, they were sufficient to enable HUD to make a reasonable determination that a particular project was in compliance with Titles VI and VIII. There was no evidence in the case that the practices of HUD in site selection and approval for federally subsidized multi-family housing had a substantial effect upon the racial makeup of schools within the KCMSD. A good example is the East Hills Village located in the Knotts Elementary School attendance zone. The East Hills Village project was approved by HUD in 1971. (Ex. P27B). In 1971 when the project was approved by HUD, Knotts School was 84% black and in 1973 when the East Hills Village project was opened, Knotts School was 91.9% black. (Ex. K–2). When East Hills Village opened there were 30 elementary school age children, 27 black and 3 white. (Ex. P1199). Ten percent of the children were white, ninety percent were black. The black percentage was higher in Knotts School than that reflected in the East Hills Village project.
Although the evidence showed that HUD assisted housing was not concentrated within KCMSD, plaintiffs nevertheless

asserted that most blacks who resided in assisted housing lived within the KCMSD. Even assuming that this is true, it does not show a Title VIII violation on the part of HUD. HUD established affirmative marketing regulations, 24 C.F.R. §§ 200.600, 841.202 and 880.206, and the evidence reflects that the Kansas City HUD office monitored these affirmative fair housing and marketing plans very closely. A detailed description of HUD’s review and monitoring of the affirmative fair housing marketing plans was provided by Elaine Owens. (Tr. 20,413–431; 20,516–521). *1500 Each project sponsor was required to establish an “anticipated occupancy goal” for tenants which was both realistic for the project area and which would provide greater integration than the current racial mix of the area. (Tr. 20,419, 20,516–17). The review also assured that advertising and contact with the community groups were adequate to reach persons who would not otherwise be expected to apply for such housing. (Tr. 20,415–19). Its review involved a pre-occupancy conference with the sponsor to discuss the provisions of each marketing plan and how the plan was to be implemented as well as an appraisal of the sponsor’s past affirmative marketing experience. (Tr. 20,420–23). With respect to HUD’s monitoring of the plans, sponsors were required to submit monthly occupancy reports until the project was 95% occupied. Thereafter, occupancy reports were to be submitted annually. (Tr. 20,423–24). HUD also monitored the Equal Housing Opportunity Plans under § 8 housing programs. (Tr. 20,431–33). Generally its efforts were designed to insure that participating § 8 certificate holders were made aware what affordable housing was available to them throughout the entire community and that the public housing authorities informed them of their rights under the fair housing laws. HUD made annual monitoring visits to all PHAs in the Kansas City area that administered § 8 programs. (Tr. 20,453–54). Undoubtedly the affirmative fair housing marketing plans did not result in the integration which HUD desired; however, this was not the result of the lack of affirmative marketing efforts. A good example was the evidence concerning Parvin Estates which was located in predominantly white north Kansas City. (Tr. 12,542–43). Mrs. Ruth Sechter testified at length concerning the marketing plans imposed in the development of Parvin Estates. She stated that the plan had been successful in making blacks aware of the openings at Parvin Estates but they were unsuccessful in attracting the expected number of black families to the project. She attributed this to reasons that were beyond the sponsor’s control and not the fault of the plan. (Tr. 12,582). This project contained 300 units; however in spite of the affirmative marketing efforts, they were never able to attract more than 12% minorities. The occupancy rate for blacks was actually lower. (Tr. 12,562). Certainly there was nothing about the marketing regulations or the manner in which they were implemented and monitored which was arbitrary or capricious.
Plaintiffs also asserted that blacks were routinely denied FHA mortgage insurance well past 1954. There was no evidence whatsoever to support plaintiffs’ contentions in this regard. Mr. Newsome, with 23 years experience as a real estate agent, was not aware of a single instance in which FHA had refused to insure a mortgage loan because of race. (Tr. 9,439, 9,517). The only evidence on the issue was to the effect that race was not a factor in HUD’s decision to insure a home mortgage loan. (Tr. 19,925–26, Treu Depo. at 60; James Depo. at 15). Since 1962 FHA has required a certification of compliance with its nondiscrimination policy by all lenders, buyers and sellers. (Ex. FD45A & B, 46A & B, and 350 [see 24 C.F.R. § 200.300 et seq.] ).
[6] Plaintiffs also claimed that there was racial discrimination in the sale of homes in which the FHA insured mortgage had been foreclosed. Plaintiffs maintain that many management brokers maintained separate lists of these homes, one for whites and one for blacks, and presold homes in white areas to whites to avoid the possible purchase by blacks. The evidence reflected only one instance in which this occurred. Ms. Dorothy Davis testified that in 1966 Mr. Homer Ritch, a management broker agreed to sell property to her several days before it was advertised to the general public. (Tr. 11,730). HUD investigated Mr. Ritch’s conduct which resulted in an official reprimand by HUD and a nonrenewal of his contract to manage HUD properties. (Tr. 11,746). HUD immediately altered the manner in which such homes were sold to prevent any future occurrences of preselling. (Tr. 11,732–33). Under the new procedure, all proposals for the sale of HUD owned properties had to be *1501 submitted directly to HUD not to management brokers and no proposals were received until the Monday following the Thursday advertisement of the property. (Tr. 11,732–33). The most detailed evidence concerning HUD’s property disposition was in the deposition testimony of Jaspar Levine, the Director of HUD’s property disposition branch between 1965 and 1979. Summarily, he testified that HUD maintained the property in good condition so that they would not blight the neighborhoods. (Levine Depo. at 26). When title to the property was acquired by HUD, a repair list was prepared, contracts were let for the repair, and the repair work was performed. (Levine Depo. at 27,31). If property remained unsold for a period of 30 to 60 days, it was normally taken off the market, further repaired and re-advertised for sale. (Levine Depo. at 28). Homes that needed only minor repairs were offered for sale in an “as is” condition. (Levine Depo. at 26). The evidence showed that HUD held properties were available for sale to all members of the general public regardless of race. (Tr. 11,726, Levine Depo. at 79). Properties held for sale were advertised in the Kansas City Call, a black newspaper, and the Kansas City Star and Times. (Tr. 11,726–27). A list of HUD held homes that were ready for sale was regularly mailed to all interested persons. (Tr. 11,727). The evidence does not support plaintiffs’ contention that HUD’s practices in the sale of homes on which its insured mortgages had been foreclosed was racially discriminatory.

[7] There was evidence that some HUD held homes in the Southeast Corridor were allowed to deteriorate and fall in disrepair. Assuming the accuracy of this testimony there was an absence of any evidence to support a finding that such neglect of the property by HUD was because of racially discriminatory intent or purpose.
Various State Agencies
[8] Plaintiffs contend that the following state agencies had an opportunity to reduce the impaction of blacks and minorities in the inner city of Kansas City: the Missouri Housing Development Commission, the Division of Finance, Division of Savings and Loan Supervision, the Division of Insurance, the Missouri Real Estate Commission, and the Missouri Commission on Human Rights. In view of this Court’s finding that the State had an obligation under the fourteenth amendment to assure that blacks within the KCMSD were not denied the equal protection of the laws regardless of why they settled within the KCMSD, the evidence concerning the aforementioned state agencies will be addressed only very briefly.
[9] Plaintiffs contend that the State and particularly the Missouri Department of Highway and Transportation (MDHT) have managed its relocation program for persons displaced by highway projects in a manner that had a racially segregative effect. Their main complaint was the location of the I–70 route which was first chosen in 1956 when the interstate system took effect (Tr. 18,243) and at a time when the KCMSD was overwhelmingly white. (Def. Ex. K–2). I–70 was financed by both federal and state funds (Tr. 18,243). I–70 generally followed the route of what was previously U.S. Route 40 (Tr. 18,248) and was chosen to serve the existing traffic patterns as they then existed and were anticipated to continue. The I–70 project had to be approved by the Federal Highway Administration. (Tr. 18,246). Planning for this project was generally approved by various agencies of the city government. (Tr. 18,246–47). It goes without saying that the location of a highway and particularly an interstate highway through a residential area will displace a certain number of residents in that area. There is no proof whatever that the State’s action as it related to the construction of the I–70 project amounted to any constitutional violation.
Plaintiffs contend that in its relocation program for the South Midtown Freeway (SMF), MDHT managed its program in a manner which resulted with blacks who were displaced being located in areas which were predominantly black and the whites being located in suburban areas which *1502 were predominantly white. The Court finds that the location for the SMF generally followed existing patterns of traffic and was probably the most feasible and reasonable location for the freeway and insofar as the freeway location was concerned, there was no constitutional violation on the part of the State. (Tr. 18,258). Again, the plans for the freeway had to be approved by the federal government. (Tr. 18,298). It was necessary for a relocation plan to be prepared and submitted to the U.S. Department of Transportation for approval for funding. (Tr. 18,032–33). Relocatees who requested assistance from MDHT were assisted in finding replacement housing. (Tr. 18,028). Relocation payments were authorized by the Uniform Relocation Act of 1970. (Tr. 18,019). On the initial contact, the relocatees completed a questionnaire which included the relocatee’s preference for relocation. (Tr. 18,019–20). The relocatees did receive financial assistance dependent upon their circumstances. (Tr. 18,021–27). Relocatees were told to contact MDHT if at any time they felt they were the victims of discrimination but no such complaints were ever received by MDHT. (Tr. 18,031, 18,043). Generally, MDHT advised relocatees of the availability of houses and did not refer them to relators for this purpose. (Tr. 18,032, 18,041, 18,042).
The State contended that plaintiffs’ claims that the State’s location of highways and its management of its relocation programs were racially discriminatory should have been dismissed and no evidence on these issued admitted because the United States Department of Transportation was dismissed and the Highway Department for the State of Missouri was not a party. Without deciding the issue as to whether these claims should have been dismissed, the Court finds that there was nothing in the location of the highways nor in the operation of the MDHT’s relocation program which amounted to a constitutional violation and for which the State of Missouri would be liable.
Plaintiffs claim that the State through the Missouri Housing Development Commission (MHDC) engaged in the implementation of federal housing programs which contributed to the creation and perpetuation of a dual housing market in the metropolitan Kansas City area. MHDC was created by the Missouri legislature in 1969 to provide loans to middle and low income persons. (Tr. 18,306–07). MHDC does not build or manage any developments but simply provides financing. (Tr. 18,307).
Its first financial commitment was on December 15, 1971 which was for three developments including Parvin Estates located

in the North Kansas City Missouri School District. (Tr. 18,309). MHDC funds come from a sale of tax exempt bonds which provide the necessary proceeds for making loans to developers or in the case of single family programs to individuals to purchase mortgages under the single family home loan program. (Tr. 18,310–11). MHDC received no federal funding but has been requested to administer certain section 8 housing assistance contracts and as a result receives funding directly from HUD in which MHDC acts as a conduit to distribute these funds to eligible mortgagors who in turn make principal and interest payments to MHDC. (Tr. 18,310–13). Nearly all projects in which MHDC participated are federally insured, either FHA or VA, and in some instances private mortgage insurance guarantees. (Tr. 18,315). There was considerable evidence concerning the type of federally insured projects in which MHDC was involved; however, the Court sees no particular advantage in reviewing those projects in detail. State Exh. C–12 reflects the projects in which MHDC was involved and the location of those projects. It clearly appears that the majority of the units in which it was involved were located outside the KCMSD.
[10] [11] Plaintiffs and the KCMSD offered evidence of the alleged past racially discriminatory practices of private individuals in the fields of real estate, residential and commercial, financing, insurance and public accommodations. They seek to hold the state responsible for these activities because real estate brokers, banks, savings and loan institutions, insurance companies *1503 and other entities claimed to have been engaged in this practice receive licenses from and are subject to regulation by the State of Missouri. There is no doubt that private entities did engage in discriminatory practices such as red lining, steering and blockbusting. As stated the discriminatory acts were committed by private individuals or entities. The only complaint involving illegal activities of realtors which was filed with the Missouri Real Estate Commission led to the permanent revocation of the real estate license of the agent involved. (Tr. 12,257–58). Other complaints were filed with the Kansas City Human Relations Committee which did receive an affirmative response from that committee. (Tr. 4721 and 4711–12). The mere fact that activities of these private individuals or entities were either licensed by or subject to regulation by a state agency does not convert the private action into state action for which the State of Missouri would be liable. However, private action may, in law, become state action when the state has exercised coercive power or has provided significant encouragement for the private discriminatory activity. This is clearly the teaching of the following cases without any further discussion concerning the holding in those cases: Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) and Rendell-Baker v. Kohn, 457 U.S. 830, 102 S.Ct. 2764, 73 L.Ed.2d 418 (1982). There was no evidence whatsoever that the state agencies exercised coercive power or significantly encouraged the private individuals or entities in their discriminatory practices so as to make their actions the actions of the State. While these agencies, acting within the authority granted them by the General Assembly, committed no constitutional violation, the State could have given those agencies obligations and authority which could have aided in the disestablishment of the dual school system which it created. This Court cannot say what precise course the State should have taken at any particular stage in meeting its affirmative duty to disestablish the dual system; however, by acting through these agencies, it could have at least partially met that duty. A finding that none of the aforementioned agencies committed any constitutional violation entitling plaintiffs to relief does not dispose of the question concerning the State’s liability.
[12] In the past the State has taken positive actions which were discriminatory against blacks. As previously stated, it mandated separate schools for blacks and whites; it established separate institutions for teaching black school teachers, § 10632 R.S.Mo. (1939); it established and maintained a separate institution for higher education for blacks at Lincoln University, § 175.050 R.S.Mo. (1949); it provided that school boards in any town, city or consolidated school district could establish separate libraries, public parks and playgrounds for blacks and whites, § 165.327, R.S.Mo. (1959); it made it a crime for a person of ⅛ Negro blood to marry a white person, § 563.240 R.S.Mo. (1959); and its courts enforced racially restrictive covenants. These actions had the effect of placing the State’s imprimatur on racial discrimination. It created an atmosphere in which the private white individuals could justify their bias and prejudice against blacks. A large percentage of whites do not want blacks to reside in their neighborhood and a large percentage of blacks do not want to reside within a neighborhood in which they are not wanted. This has and continues to have a significant effect on the dual housing market in the Kansas City area. Thus, the Court finds that the State has encouraged racial discrimination by private individuals in the real estate, banking and insurance industries. Liability on the part of the State might be a very close question if it hinged solely on its encouragement of private discrimination. There is a much more salient reason for finding liability on the part of the State.
The KCMSD did not mandate separate schools for blacks and whites. The people of the State of Missouri through constitutional provision and the General Assembly through legislative enactments mandated that all schools for blacks and whites in *1504 this State were to be separate. There is no room for doubt but what the State of Missouri intentionally created the dual school system. Under Brown I, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), this

constituted a violation of the 14th amendment of the United States Constitution and no further proof of segregative intent is required. Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ), Swann v. CharlotteMechlenburg Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. School Board of New Kent Co., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir.1984) and other cases decided by the Supreme Court and the various circuit courts clearly demonstrate that having created a dual system, the State and the KCMSD had and continue to have an obligation to disestablish that system. In Keyes v. School District No. 1, Denver, Colo., 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973), the Court stated:
[W]e have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in Brown v. Board of Education, 347 U.S. 483 [74 S.Ct. 686, 98 L.Ed. 873] (1954) (Brown I ), the State automatically assumes an affirmative duty ‘to effectuate a transition to a racially nondiscriminatory school system.’ Brown v. Board of Education, 349 U.S. 294, 301 [75 S.Ct. 753, 756, 99 L.Ed. 1083] (1955) (Brown II ).
Keyes, 413 U.S. at 200, 93 S.Ct. at 2693. In Dayton Board of Education v. Brinkman, 443 U.S. 526, 99 S.Ct. 2971, 61 L.Ed. 2d 720 (1979), the Court stated:
But the measure of the post-Brown I conduct of a school board under an unsatisfied duty to liquidate a dual system is the effectiveness, not the purpose, of the actions in decreasing or increasing the segregation caused by the dual system.
Dayton, 443 U.S. at 538, 99 S.Ct. at 2979. Having found that there are still vestiges of the State’s dual school system still lingering in the KCMSD, the obligations of the KCMSD and the State have not been met.
[13] The State argues that under the Constitution of the State of Missouri and the statutes of the State, it was unable to take any affirmative action to dismantle the KCMSD’s dual school system. In the general memorandum and order filed June 5, 1984, in discussing the local autonomy of public schools within the State of Missouri, it was stated at page 8: “The State of Missouri does not have the power to require a merger or consolidation of school districts.” This statement by the Court was intended to reflect that the state statutes had vested that power in the school districts and had not retained it for the State. It is the conclusion of this Court that none of the provisions of the Constitution nor statutes of the State of Missouri would have prevented the State of Missouri from fulfilling its affirmative duty of disestablishing a dual school system subsequent to 1954. Article 9, § 1(a) of the Missouri Constitution requires the General Assembly to establish and maintain free public schools; Article 9, § 1(b) provides that schools for any contiguous territory may be established by law. Article 3, § 40(20) provides that the General Assembly shall not pass any local or special law “creating new townships or changing the boundaries of townships or school districts.” There is nothing in the State Constitution which would prevent the General Assembly from enacting legislation which would give the State sole authority to establish school districts as it sees fit. If such legislation is the only means by which the State can fulfill its 14th amendment obligations, then such legislation is mandatory. It is clear that school districts in the State exist pursuant to the State Constitution and it is also clear that the General Assembly for the State of Missouri may abolish or create districts subject only to the requirement that the territory within the district must be contiguous and subject only to the provision that such may not be done except by general legislation as opposed to special *1505 legislation. The General Assembly established the school districts and if it deems necessary, can change them even though to do so might require amendments of some of the present statutes. In this regard the General Assembly has authority which this Court does not have. The teachings of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069, as analyzed in Hills v. Geautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976) were to the effect that a federal court had no power to restructure the operation of local and state government entities absent a constitutional violation by those entities. Article 1, § 3 of the Missouri Constitution provides that the people of the State have the inherent, sole and exclusive right to alter or reform government whenever they deem it necessary. Article 1, § 4 of the Constitution acknowledges that it is a free and independent state subject only to the Constitution of the United States. Thus it recognizes that its laws must conform to the United States Constitution. As stated in Milliken I, “no state law is above the Constitution.”
In Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct. 1401, 1410, 3 L.Ed.2d 5 (1958), it was stated:
It is, of course, quite true that the responsibility for public education is primarily the concern of the States, but it is equally true that such responsibilities, like all other state activity, must be exercised consistently with federal constitutional requirements as they apply to state action. The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal. State support of segregated schools through any arrangement, management,

funds, or property cannot be squared with the Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws.
In Board of Education v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971), the Court stated:
[I]f a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.
Even if the hands of state administrators such as the Commissioner of Education, the State Board of Education, or other agencies were “tied” by state statutes, the State as a collective entity cannot defend its failure to affirmatively act to eliminate the structure and effects of its past dual system on the basis of restrictive state law. The State executive and its agencies as well as the State’s General Assembly had and continue to have the constitutional obligation to affirmatively dismantle any system of de jure segregation, root and branch. This obligation is parallel with the obligation of the KCMSD. This case is before this Court simply because the KCMSD and the State have defaulted in their obligation to uphold the Constitution.
[14] Having found that there are still vestiges of the dual school system in the KCMSD, the Court finds the issues in favor of plaintiffs against the KCMSD and the State of Missouri and it further finds the issues in favor of the KCMSD against the State of Missouri. Since these defendants have failed to comply with their constitutional obligations, this Court not only has the power but the duty to enter a decree which will correct the continuing effects of past discrimination as well as bar discrimination against blacks in the future. Louisiana v. United States, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 (1965).
The issues of liability and remedy have previously been bifurcated by this Court. Therefore at this time the Court makes no determination as to what remedy should be decreed nor a determination at this point whether or not the case should be opened for additional discovery and later a trial on the remedy issue. The Court is of the opinion that the initial step which should be taken in regard to remedy would be the preparation and submission of a plan which might obtain the approval of the parties *1506 involved as well as the approval of this Court.
Since the State under its Constitution has the duty to establish and maintain free public schools, it has the primary responsibility for insuring that the public education systems in the State comport with the United States Constitution. The State Board of Education and the KCMSD Board of Education have much more expertise than this Court in the operation and management of public schools within this State. The KCMSD Board more clearly understands the facilities which are available within its system, the extent to which some school facilities are overcrowded while others are not or may even be vacant. It understands the problems of the transportation of students to and from the various school facilities and it more fully understands the administrative problems with which it is faced than this Court does; therefore, the State Board of Education and the KCMSD Board of Education are hereby directed to prepare a plan which would establish a unitary school system within the KCMSD. In doing so, they should concentrate on the schools in which the student enrollment is more than 90% black. They should also, to the extent possible, see that students are permitted to attend a school nearest the student’s home so long as by so doing it does not deter from properly integrating the students in the KCMSD. They should also bear in mind cost factors as well as the purpose of the public schools in this state, that is to furnish quality education to its students. While the Court does not intend to limit matters which should be considered to those enumerated above, it does suggest that the above are some considerations which should be kept in mind. It is also the Court’s opinion that much of the cost for preparing and implementing a plan to dismantle the vestiges of a dual school system in the KCMSD should be borne by the State. The Court would invite the two Boards to follow the teachings of the United States Supreme Court in regard to appropriate remedies as set forth in Keyes v. School District No. 1, Denver, Colo., supra; Green v. School Board of New Kent Co., supra; and Swann v. Charlotte-Mechlenburg Bd. of Education, supra. The Court further directs that such a plan be submitted to the Court within ninety (90) days from the date of this order. Plaintiffs will be given thirty days after the plan is filed in which to file any written objections to it. Upon the submission of such a plan, it may be determined at that time whether or not an additional hearing should be held and evidence received in regard to a remedy.
Accordingly, it is hereby
ORDERED that the Clerk is directed to enter judgment on the issue of liability in favor of HUD and against plaintiffs; in favor of plaintiffs and against the State defendants and the KCMSD; and in favor of the KCMSD and against the State defendants on its cross-claim; and it is further

ORDERED that within ninety (90) days from the date of this order, the State Board of Education and the KCMSD Board of Education are directed to submit a proposed plan which will have the effect of removing the vestiges of the dual school system as it presently exists in the KCMSD; and it is further
ORDERED that plaintiffs shall have thirty (30) days after the proposed plan is filed in which to file objections to it.

All Citations 593 F.Supp. 1485, 20 Ed. Law Rep. 852

Footnotes

1

The collective designation of “Missouri” or “State” is intended to include the governor, the Missouri State Board of

Education and its ofﬁcers, and Arthur L. Mallory, the state Commissioner of Education.

 
 639 F.Supp. 19 United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
June 14, 1985. |
On Pending Motions June 16, 1986.
Synopsis School desegregation action was filed and plans to remedy segregation were proposed. The District Court, Russell G. Clark, Chief Judge, held that: (1) past segregation and need to attract and maintain nonminority enrollment justified remedy that included achievement of AAA status by schools, reduction in class sizes, implementation of summer school program, full-day kindergarten, before and after school tutoring, early childhood development programs, magnet school program, staff development program, volunteer interdistrict transfer program, and capital improvements; (2) school district’s inadequate financial resources needed to implement school desegregation plan justified injunction against tax levy rollback for one year to raise additional $4 million; and (3) parties were required to treat request for information from monitoring committee that oversaw implementation of desegregation plan as request for information from district court.
Ordered accordingly.
Attorneys and Law Firms
*22 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.

RUSSELL G. CLARK, Chief Judge.

MEMORANDUM OPINION

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.” *23 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).
[1] 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 “[t]he 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 *24 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 *25 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 school counselors and home school liaison officers in all low achieving elementary schools (KCMSD Plan at p. 21), the expansion of computer assisted and computer managed instruction (KCMSD Plan p. 31–34), the implementation of a “Writing to Read” project (a computer program designed for kindergarteners) (KCMSD Plan p. 32), the implementation of a computer home loan program (KCMSD Plan p. 33) and what KCMSD calls an “Effective School” project which would make available up to $100,000 for each elementary school with reading levels below national average (KCMSD Plan p. 21). This means that 41 of the 50 elementary schools in the KCMSD would be receiving these funds (KCMSD Exh. K–95). The Effective School project attempts to address the individual needs of the elementary schools on the school level. Local parents, patrons, teachers and principals would be involved in determining how these resources may be spent in order to increase the student achievement level in that school, especially in regard to reading. A similar program has been implemented in six predominantly minority schools in the KCMSD. It has shown significant promise as a means of remedying many of the educational problems which go hand in hand with racially isolated minority student populations (testimony of Dr. Daniel Levine at pp. 22,132–49, testimony of Dr. Eugene Eubanks at pp. 22,376–79).
The State proposal for improving student achievement on the elementary level is the implementation of an “Instructional Management System.” This system is a modification of a teaching approach entitled “Mastery Learning” (State Plan at p. 43). Mastery learning, as defined by Dr. Joan Abrams and Carla Santorno, in testimony during the remedial hearing, is an instructional technique in which the teacher prepares a lesson plan and presents material to the class, following presentation of the material the teacher conducts testing or evaluation to determine which students have mastered the material, then the teacher establishes lesson plans which are more individualized with one group of students receiving enrichment, while the other group of students, who have not yet mastered the material, will receive remedial lessons until they do master the material. This technique has proven successful in school districts undergoing desegregation as well as those which were not (testimony of Dr. Daniel Levine, Dr. Herb Walberg, Dr. Joan Abrams, Carla Santorno).
The KCMSD proposal for improving achievement on the secondary levels includes: the implementation of pre-collegiate courses and career counseling (KCMSD Plan pp. 25–27, 29–30); the implementation of alternative secondary education programs (KCMSD Plan at 27–28), including in-school suspension rooms, transition rooms for the ninth grade, alternative schools for alienated youth, computer laboratories and a reform and reorganization demonstration project similar to the effective elementary school project in which the 18 secondary schools would be budgeted approximately $100,000 per school with the determination as to how those funds should be allocated based upon recommendations of patrons, parents, teachers

and the local principal.
The State proposes to implement pre-collegiate courses and an occupational and career education program in the 90% plus black schools (State Plan at 109). No other specific proposals are made by the State as part of an attempt to improve achievement at the secondary education level, however, other components in its plan, as in the *26 KCMSD Plan, allow for programs which would be aimed at improving achievement.
In addition to these programs to increase student achievement, both the State of Missouri and the KCMSD endorse achieving AAA status, reducing class size at the elementary and secondary level, summer school, full day kindergarten, before and after school tutoring and early childhood development programs.
IMPROVING STUDENT ACHIEVEMENT
AAA Achievement
[2] The Missouri State Department of Elementary and Secondary Education (DESE) conducts an annual evaluation of school districts as a part of its ongoing classification and accreditation program. The objective of this program is to provide direction and assistance in the development of quality education in Missouri’s public schools (KCMSD Exh. K–69). Under this program Missouri’s school districts are classified according to the quality and quantity of the educational programs and services they offer, including such items as teacher qualifications, class size, instructional equipment, library resources, and instructional materials. The highest classification is “AAA.” A AAA rating is a designation which communicates to the public that a school system quantitatively and qualitatively has the resources necessary to provide minimum basic education to its students (Dr. Eubanks’ testimony at 22,360).
Presently KCMSD is rated AA and has been so rated since 1977. All other school districts in the Kansas City area are rated AAA (testimony of Dr. Larry Keisker). KCMSD’s eligibility for AAA rating is dependent upon improvement in library personnel and resources among KCMSD’s elementary schools and secondary schools. Furthermore, the elementary school system is lacking in a minimum number of art, music, and physical education teachers. There is also a need for additional counselors at the elementary and secondary levels in order to reach AAA classification and finally, KCMSD elementary teachers do not have adequate planning time (KCMSD Exh. K–68).
Specifically, the following improvements must be made in order for KCMSD to meet or barely exceed AAA classification standards:
1. Library Improvement. KCMSD must hire 13 certified librarians for the elementary school libraries (KCMSD Exh. K–69, testimony of Dr. Eugene Eubanks at p. 22,363, testimony of Dr. Larry Keisker).
KCMSD needs an additional 9 senior high librarians (testimony of Dr. Larry Keisker, KCMSD Exh. K–68, testimony of Dr. Eugene Eubanks at 22,362).
Additional media and library resources are needed at the elementary, junior and senior high school libraries. The total amount of additional resources needed to raise the library and media resources to a AAA standard is $950,000 (testimony of Dr. Larry Keisker, testimony of Dr. Eugene Eubanks at pp. 22,361–362, KCMSD Exh. K–68, State Plan at p. 97, KCMSD Exh. K–95 at p. 6).
2. Teaching Load and Curriculum. The AAA standard for elementary teaching load is that “(a)ll teachers shall have planning time scheduled within the school day and shall devote no more than an average of 310 minutes of the six hour day to teaching except that full-time librarians and guidance counselors may devote 360 minutes of the six hour day to those duties.” (Handbook for Classification and Accreditation of Public School Districts in Missouri at p. 18). Presently KCMSD is not in compliance with this minimum standard (testimony of Dr. Larry Keisker, testimony of Dr. Eugene Eubanks at pp. 22,367–74, KCMSD Exh. K–68). Furthermore, the AAA standard for elementary school curriculum includes a requirement that art and music shall be scheduled and taught at least 60 minutes per week by teachers with the proper subject matter certification or teachers with regular elementary certificates who are supervised by teachers with proper subject *27 matter

certification and that physical education shall be scheduled and taught at least two 30 minute periods per week by teachers with certificates in physical education or by teachers with regular elementary certificates who are supervised by teachers with certificates in physical education. (Handbook for Classification and Accreditation of Public School Districts in Missouri at p. 20). KCMSD is presently not in compliance with this AAA standard (KCMSD Exh. K–68, testimony of Dr. Eugene Eubanks at pp. 22,367–68, testimony of Dr. Larry Keisker).
Both the State and KCMSD propose using additional art/PE/music specialty teachers on the elementary level in order to obtain additional planning periods for existing elementary teachers. Presently KCMSD has 48 specialty curriculum teachers with each student receiving 1 art/PE/music session every ten days. There are 20,245 elementary students in KCMSD (KCMSD Exh. K–74). In order to meet the AAA curriculum standards for these three specialty areas, 34 teachers are needed in each of the three areas. Thus there is a need for 102 teachers. Since KCMSD presently employs 48 of these teachers, then a total of 54 additional art/PE/music teachers are needed in order to comply with AAA teaching load standards at the elementary level (testimony of Dr. Eugene Eubanks at p. 22,368–9).
The hiring of 54 additional specialty curriculum teachers would also provide 180 minutes per week of planning time for elementary school teachers. Seventy minutes of planning time per week would still be needed by elementary school teachers in order to reach AAA standards (Handbook at p. 18). The State recommends that this additional time could be achieved through shared recess supervision loads. That is, since there are two 15 minute recess periods each day, there is a total of 150 minutes of recess time each week. If two teachers would trade off responsibilities for supervising these recess periods, then each teacher would be given an additional 75 minutes per week of planning time, enough to meet AAA standards when combined with the 180 minutes of planning time provided by the art/PE/music teachers (testimony of Dr. Larry Keisker).
The KCMSD proposes to hire 62 additional teachers in order to fill the planning time remaining.
In order to meet the AAA classification requirements for teaching load at the elementary school level, KCMSD shall hire an additional 31 certified teachers and 31 teacher’s aides in order to insure that all teachers have planning time scheduled within the school day and that all teachers should devote no more than an average of 310 minutes of the six hour day to teaching.
3. Counselors. The AAA standard for elementary counselors is 1 counselor for every 1,500 students, plus for every major fraction above the 1,500 student level, an additional half-time counselor (Handbook at p. 19). Presently KCMSD has no elementary counselors (testimony of Dr. Eugene Eubanks, p. 22,366). Fourteen additional counselors are needed in order to meet AAA standards.
At the secondary level AAA standards require one full-time counselor for every 390 students (Handbook at pp. 27, 33). The KCMSD needs an additional four counselors to meet AAA standards (testimony of Dr. Keisker).
The patrons of a school district, especially the parents of potential students of that school district, view a AAA rating as an important factor in measuring the school’s ability to educate its students. Achieving AAA classification could be the first step in KCMSD’s journey to regain and maintain a quality education program and could serve to assist in attracting and maintaining non-minority student enrollment. Achieving AAA status has been recognized by the Eighth Circuit as a proper component of a desegregation plan. Liddell v. State of Missouri (Liddell VII), 731 F.2d 1294, 1318, cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), Liddell v. State of Missouri, (Liddell VIII), 758 F.2d 290, 294 (1985). Therefore, KCMSD *28 shall hire 13 certified librarians for its elementary school libraries, 9 certified librarians for the senior high school libraries, and purchase $950,000 in additional media and library resources at the elementary, junior and senior high library levels. Furthermore, KCMSD shall hire 18 art certified elementary school teachers, 18 music certified elementary school teachers, and 18 physical education certified elementary school teachers for the purpose of achieving AAA standards in the area of elementary curriculum and assisting in reaching AAA standards in the area of teaching loads. KCMSD shall also hire 31 additional certified elementary school teachers and 31 teachers’ aides who shall be used to free up planning time for existing elementary school teachers in order to insure that all teachers have planning time scheduled within the school day and that all teachers should devote no more than an average of 310 minutes of the six hour day to teaching. KCMSD shall hire 14 additional elementary school counselors in order to have one elementary school counselor for every 1,500 students presently enrolled at KCMSD elementary level. KCMSD shall hire an additional four certified counselors at the secondary level. All additional hirings and additional resources purchased under this order which shall enable KCMSD to reach AAA classification status shall be done before and during the 1985/86 school year in order that the new classification ratings issued by the State in the spring of 1986 will reflect the results of this effort. The maximum funds available for achieving AAA status shall be $4,738,500. No more than $950,000 shall be spent on additional library and media resources. The maximum cost for individual librarians, counselors and teachers, including fringe benefits, shall be $28,000. The maximum cost for

individual teacher’s aides, including fringe benefits, shall be $9,500. The cost for achieving AAA status, in the maximum amount of $4,738,500, shall be borne equally by the KCMSD and the State of Missouri.
Reducing Elementary and Secondary School Class Size
[3] The Missouri State Board of Education in 1984 stated that “[t]oday, in many schools, the entire educational process is bogged down because so many students have not mastered requisite skills thoroughly and because teachers must spend so much time helping them “catch up.” Until we elevate the “floor of achievement” for all students—at least in terms of basic school skills —the slowest learners will continue to dictate the pace and content of instruction for all the rest.” Reaching for Excellence at p. 18 (KCMSD’s Exh. K–75). That education process has been further “bogged down” in the KCMSD by a history of segregated education. Too often, as a result, a higher percentage of black students are among the lower achievers. The cost of this under-education is enormous.
When thousands of our citizens are afforded only inferior educational opportunities, they suffer a loss which can never be compensated and the whole country is subjected to unnecessary social and economic waste.
Robert F. Kennedy, The Pursuit of Justice, p. 73 (1964). The Missouri State Board of Education has made a number of recommendations to improve educational opportunities for all Missouri students, including “[i]ncreasing the individual attention and instruction available to students by providing funds to enable school districts to maintain classes no larger than 15 students in kindergarten to grade 3 and no larger than 20 students in basic skill classes in grades 4 through 6.” Reaching For Excellence, supra, at 21. All of the hearing testimony by experts, board members, and patrons, supports the conclusion that increasing individual attention and instruction will result in giving teachers more manageable teaching loads. Further, if the more manageable teaching loads are accompanied by changes in curriculum materials and methods and adequate staff development, then significant gains in student achievement should result (testimony of Dr. Daniel Levine at pp. 22,333–35, testimony of Dr. Eugene Eubanks at 22,379, *29 22,400–02, 22,494–505, testimony of Dr. Herb Walberg, testimony of Dr. Joan Abrams, testimony of Dr. Gene Glass, testimony of William Alexander, testimony of Marie Toffey, testimony of Dr. Willis D. Hawley). Reduced class size also serves to increase the likelihood that the KCMSD could maintain and attract nonminority enrollment in the future (testimony of Sue Fulson, testimony of Katherine Rush Thompson). Finally, reduced class size will assist the KCMSD in implementing the quality education components contained in this plan.
Therefore, it is this Court’s finding that achieving reduced class size is an essential part of any plan to remedy the vestiges of segregation in the KCMSD. Reducing class size will serve to remedy the vestiges of past segregation by increasing individual attention and instruction, as well as increasing the potential for desegregative educational experiences for KCMSD students by maintaining and attracting non-minority enrollment.
There are 3,081 students in kindergarten sessions with some duplicates due to the all day kindergarten program. There are 100 kindergarten teachers, (a figure which should be multiplied times two in order to account for the morning and afternoon session) (State’s Exh.55). The average student-teacher ratio is 18.9 to 1. There are 41 sessions of Chapter I all day kindergarten, each with 15 students, equaling 1,615 students total. Subtracting those students and teachers, a student-teacher ratio average of 19.9 to 1 is reached. There are 1,413 students in kindergarten classes that have more than 22 students for every teacher, the goal established by the KCMSD. Thus, KCMSD must have 64.23 teachers in order to reach the KCMSD reduced class size goal in kindergarten. Since KCMSD presently has 53 teachers, it means an additional 12 teachers are needed at the kindergarten level to reach the KCMSD’s reasonable goal of no more than 22 students in kindergarten classes.
There are 8,603 students taught by 388 ½ teachers in grades 1 through 3 resulting in a student-teacher ratio of 22.14 to 1 (KCMSD Exh. K–56). Of those students 1,369 are in 58 Chapter 1 special classes. Subtracting the Chapter 1 students and teachers from the total number of students and teachers, there are 7,234 students and 272 ½ teachers, equaling a 26.55 to 1 student-teacher ratio average in grades 1 through 3 (KCMSD Exh. K–56). Of the 50 elementary schools in KCMSD, 22 of these schools have an average student-teacher ratio above the 22 to 1 goal (44%). Furthermore, 240 of the 338 elementary school classrooms have student-teacher ratios in excess of the 22 to 1 student ratio goal (71%) (KCMSD Exh. K–56, testimony of Dr. Eugene Eubanks). Thus, in order for the 7,234 elementary students in grades 1 through 3 who are not in special Chapter 1 classes, to have a reduced class size of 22 students, there is a need for 328.8 teachers. Presently, KCMSD has 272.5 teachers in grades 1 through 3 (KCMSD Exh. K–56, testimony of Dr. Eugene Eubanks). In order to achieve the

goal of having no more than 22 students in any classroom in grades 1 through 3, KCMSD will need an additional 56 teachers.
In grades 4 through 6 there are 6,625 students who are taught by 274.5 teachers, equaling an average of 24.1 to 1 studentteacher ratio (KCMSD Exh. K–57). 875 of those students are in 33 special two-teacher classes (K–57). When those students and teachers who are in special classes are subtracted from the totals, there are 5,750 students being taught by 208.5 teachers in grades 4 through 6, yielding a student-teacher ratio of 27.6 to 1. There are 3,102 students in grades 4 through 6 who are presently in classes that exceed the 27 to 1 reasonable student-teacher ratio goal established by KCMSD (K–57). Thus in order to reduce all classes to the 27 to 1 goal established by KCMSD, the district will need 115 teachers. Presently they have 100 teachers teaching those 3,102 students. Therefore, KCMSD needs an additional 15 teachers in order to reduce class size.
There are 5,351 students in the junior high schools of KCMSD. There are 243 *30 teachers at the junior high level. This yields a student-teacher ratio average of 22.02 to 1 (KCMSD Exh. K–58). There are 37,457 student classes at the junior high level. This figure relates to the 1,376 teacher assignments which exist at the junior high level. This means that the studentteacher ratio is 27.2 to 1. However, the more meaningful figure relates to the number of student classes and the number of teachers available. Presently, during an average school day a teacher will have classes in which a total of 154 students are present. There are nine junior highs in KCMSD and in seven of those junior high schools the average teacher has more than 125 students during the day. KCMSD will need an additional 22 junior high teachers in order that no teacher will have more than 125 students total in all classes per day.
There are 8,727 students at the senior high level and 352 teachers. (KCMSD Exh. K–59). This means that the average class size is 24.8 to 1. There are 52,362 student classes and 1,824 teaching assignments which yields a student-teacher ratio of 28.7 to 1. However, the more revealing figure is that there are 52,362 student classes, when divided by the 352 teachers it shows that each teacher, on the average, has 148.76 students each day enrolled in classes they teach during that day (K–59). Furthermore, 8 of the 9 (89%) senior high schools have ratios which are in excess of the 125 student per day goal established by KCMSD. In order to reach that goal KCMSD needs an additional 78 senior high teachers.
Thus, in order to reach the reasonable class size goals established by the KCMSD of no more than 22 students in grades kindergarten through third grade, no more than 27 students in grades four through six and on the secondary level, no more than 125 students per teacher per day, a total of 183 additional teachers will need to be hired. Therefore, it is ordered that beginning with the school year 1987/88 there will be no kindergarten, first, second or third grade classes in the KCMSD with more than 22 students. Further, it is ordered that by the school year 1987/88 there will be no more than 27 students in any classroom in grades four through six in the KCMSD. In addition, it is ordered that by the school year 1987/88 no secondary education teacher in the KCMSD, with the exception of physical education and music teachers, shall be required to teach more than 125 students per day.
Costs for reaching this goal shall be paid for by the State of Missouri. The total costs shall not exceed $12,000,000, with no more than $2,000,000 the first year, $4,000,000 the second year and $6,000,000 the third year. While every effort should be made by the KCMSD to reach these minimal goals as quickly as possible, the goals should not be reached at the expense of hiring less than fully qualified and well trained teachers.
The goals established by this Court are only minimal goals. As the State of Missouri has noted in its pamphlet, Reaching for Excellence (KCMSD Exh. K–75), the ideal goal would be to have kindergarten through third grade classes no larger than 15 students and grades four through six with no more than twenty students. The patrons, parents, administration and board of directors of the KCMSD are encouraged by this Court to take whatever actions are necessary to reach for excellence and reduce class size even further than the goals established by this Court. While the funds allocated by this Court for the purpose of reducing class size will provide significant assistance, the financial responsibility for reaching beyond these minimal goals and reaching toward educational excellence must be borne by the patrons of the KCMSD.
Summer School
[4] Both the State of Missouri and the KCMSD propose the implementation of a summer school program as a part of a desegregation plan. The KCMSD Plan (p. 34–35) for summer school has three basic goals. First, it seeks to provide remedial and developmental learning experiences for *31 elementary and secondary education level students. Next, it seeks to provide reinforcement and enrichment for secondary education students and finally, it seeks to provide a desegregative learning

experience at both elementary and secondary levels. The State Plan (p. 88) is strictly a remedial plan in which the KCMSD would continue to operate the elementary summer school program and, in addition, would implement summer school in one junior high and one senior high at a facility which would insure the highest maximum racial mix.
Additional learning time is a key component of any effort to improve the quality of education in a public school system (testimony of Herbert Walberg). Summer school expands the amount of learning time available. Therefore, as a part of an overall effort to improve the academic achievement of students within KCMSD, both as a remedial measure and to maintain and attract non-minority enrollment, a well planned and carefully implemented summer school program at the elementary and secondary levels can be an important component in an overall desegregation plan. In addition, summer school can serve as a means to increase the opportunities for desegregative learning experiences. In the past the KCMSD has operated successful summer school learning experiences in which non-minority enrollment from surrounding school districts, participating with minority enrollment from the KCMSD, were involved (testimony of Dr. Daniel Levine at p. 22,203).
The KCMSD is therefore ordered to conduct a summer school program, beginning in the summer of 1985, for elementary level students who would otherwise have been retained in their present elementary grade, at a cost not to exceed $300 per student, with a maximum total cost of $445,000. KCMSD shall also implement a summer school program at the junior high school level in the summer of 1985, at a cost not to exceed $250 per student with the total cost not to exceed $301,000. This summer school program shall be expanded to include senior high school students and enrichment and cooperative programs in the summer of 1986 with those items being budgeted at $63,000 for senior high summer school programs and $100,000 for the enrichment and cooperation program. These three programs shall involve at least 1,000 different senior high school students. Costs shall be divided equally between the State of Missouri and the KCMSD.
Full Day Kindergarten
[5] Both the State Plan (State Plan at p. 85) and the KCMSD Plan (KCMSD Plan at p. 18) propose a full day kindergarten program. All day kindergartens are presently serving 1,229 KCMSD students in 61 classes (testimony of Dr. Eugene Eubanks at p. 22,441, KCMSD Exh. K–55). The goal under the KCMSD Plan is to provide all day kindergarten throughout the district for all willing to participate. The State Plan would implement all day kindergarten in elementary schools which presently have it but do not serve all students, expand it to all students not presently served in 7 primarily black elementary schools, and further expand it to 8 elementary schools but only for those children who rate at or below the 45th percentile in certain areas of the Missouri Kindergarten Inventory of Development Skills (KIDS).
Present experience in KCMSD with the full day kindergarten shows that such a program cannot only provide remediation to those who are victims of past segregation, but will also assist the school district in maintaining and attracting desegregated enrollment and providing integrative experiences at an early age (testimony of Dr. Eugene Eubanks at p. 22,443, testimony of Dr. Daniel Levine at pp. 22,179–181).
As a part of this desegregation plan all day kindergarten shall be offered to all students. In order to implement this program, a program which has been approved by the Eighth Circuit in the St. Louis desegregation case, Liddell VII, 731 F.2d at 1317, the district is ordered to hire for the 1985/86 school year up to a total of 39 additional certified kindergarten teachers *32 at a maximum individual cost, including fringe benefits, of no more than $28,000 annually, for a total cost of not more than $1,092,000. Costs shall be borne equally by the State of Missouri and the KCMSD.
Before and After School Tutoring
[6] Both the State Plan (p. 107) and the KCMSD Plan (pp. 17 and 22) propose the implementation of elementary after school tutoring programs of roughly $104,400. While the State and KCMSD agree on the approximate cost of such a program, the parties disagree over the components which make up such a program.
The State indicates that such a program should be implemented in up to a maximum of 20 of the elementary schools where the enrollment remains 90% or more black after any student reassignment is conducted. The State further limits this program

to after school and incorporates into it cross-age instruction or peer tutoring, parental instruction, participation by community volunteers, specialized instruction by KCMSD teachers and enrichment programs that will supplement and build upon regular day programs.
The KCMSD program proposes before and after school tutoring for kindergarten through sixth grade, implemented in any elementary school in the district where there is sufficient number of students to warrant such a program (KCMSD Plan pp. 17 and 22).
Similar programs have been found to be a way to not only remedy the vestiges of past segregation but also a means to attract and retain enrollment from non-minority families where both parents work (testimony of Dr. Daniel Levine at pp. 22,163). Further, cross-age instruction or peer tutoring and parental involvement in the education process are elements which have been successful in other school districts when used to improve academic achievement (testimony of Dr. Gene Glass, testimony of Dr. Willis D. Hawley). Therefore, KCMSD shall implement a before and after school tutoring program in at least ten schools where participation is of a sufficient level to operate the program efficiently, economically and effectively. This program should be operated in grades kindergarten through six and should utilize cross-age instruction, parental instruction, and community volunteers under the overall supervision of certified teachers. Costs for this program shall not exceed $104,400. A proposed budget shall be filed by the KCMSD no later than August 15, 1985. Costs shall be borne equally by the State of Missouri and the KCMSD.
Early Childhood Development Programs
[7] Both the State Plan (p. 44–83) and the KCMSD Intradistrict Plan (p. 17) propose early childhood development programs. The KCMSD’s proposal lacks any degree of specificity as to what services will actually be delivered. The State’s proposal is very specific in terms of the services to be delivered, and the steps to be taken in implementing each part of the early childhood development program (testimony of Dr. Daniel Levine at pp. 22,167–68).
The State’s proposal refers to but does not specifically incorporate an early language development component. An early language development program is a “keystone to eventual successful academic achievement.” (testimony of Dr. Eugene Eubanks at p. 22,419). Early language development programs have been shown to be extremely successful in Los Angeles and San Diego, California in assuring that a student will be able to make the most of the educational opportunities offered in public schools (testimony of Dr. Daniel Levine at p. 22,169–70, Dr. Eugene Eubanks at 22,419).
The State Plan provides a carefully defined and comprehensive program. Therefore, the State of Missouri’s program will be implemented as a part of this desegregation plan. Officials from the State of Missouri and from the KCMSD shall cooperate to implement the basic components of the State Plan with modifications of the State Plan in order to insure that it includes *33 an early childhood language development program and that the State Plan realistically reflects the time constraints and realities of implementing such a program within the KCMSD. Total budget shall not exceed $1,223,348. Costs shall be borne equally by the State of Missouri and the KCMSD.
Effective Schools
[8] To be effective, changes in the KCMSD aimed at improving student achievement must be planned and implemented at the school level (testimony of Dr. Daniel Levine, Dr. Eugene Eubanks, Sue Fulson, Herbert Walberg, Dr. Joan Abrams, Carla Santorno, Dr. Willis D. Hawley). In fact, if a district and its personnel lack a strong commitment to a program, then the likely result is that the program, if it is implemented at all, will be implemented ineffectively. See, e.g., Vol. VIII P. Berman and M. McLaughlin, Federal Program Supporting Educational Change, Factors Affecting Implementation and Continuation, 12–21, 30–31 (1977). Thus, effective change in schools comes from the “bottom up” and not from the “top down.” Real educational change takes place only after school administrators and staff, and patrons and parents, have been involved in the planning process and are committed to achieving this change. See, e.g., Fullan and Pomfret, Research on Curriculum and Instructional Implementation, 47 Rev.Educ. Research 335, 391 (1977). The effective school project on the elementary level and the reform and reorganization demonstration project on the secondary level, proposals of the KCMSD, serve as clear examples of the

growing awareness that public educational institutions are a dynamic system and it is only with the input and commitment of the many groups who have interest and influence in our schools—school board, administration, principal, teacher, parent, patron, and student—that effective change is realized. See, e.g., Oliver v. Donovan, 293 F.Supp. 958 (E.D.N.Y.1968) (where the teachers’ union resisted the educational components of a desegregation plan because they felt the nature of the components threatened the teachers’ vested interests in traditional policies).
Therefore, since the effectiveness of any program which seeks to improve student achievement is directly related to the degree of involvement of patrons, parents, teachers and administrators at the local school level and since the measure of any desegregation plan is its effectiveness, Davis v. Board of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 1291, 28 L.Ed.2d 577 (1971), rather than the Court ordering that any additional specific program components designed to improve academic achievement be implemented, the KCMSD shall make a determination as to the specific programs to be added. The State of Missouri shall fund such programs aimed at increasing student achievement in the following amounts:
1. For each of the 25 schools with enrollments of 90% or more black:

a. 1985/86 school year b. 1986/87 school year c. 1987/88 school year

$75,000 each school $100,000 each school $125,000 each school

2. For each of the remaining 43 schools;
a. 1985/86 school year b. 1986/87 school year c. 1987/88 school year

$50,000 each school $75,000 each school $100,000 each school.

The first year these funds shall be spent on components contained in the intradistrict plan submitted by the KCMSD in response to this Court’s January 25, 1985 order, such as mastery learning, elementary counselors and home school liaisons, transition rooms, pre-collegiate curriculum, alternative secondary school units and arrangements, occupational and career education, computer labs and computer assisted and managed instruction. Decisions on how the first year funds shall be spent will be made by the KCMSD school board of directors. However, in subsequent years the decisions will be based upon a plan developed by the existing school advisory committees. These committees, made up of parents, teachers and the principal at each school (testimony of Sue Fulson), shall make recommendations to the Board of Education in regard to how these funds

*34 should be spent at the school which they represent. The Board of Education shall review and take action as to the appropriateness of these expenditures and ways in which costs can be reduced by integrating common efforts among the schools. Criteria governing these funds are as follows:
1. These funds may only be spent to expand or implement educational improvement components presently contained in the intradistrict plan submitted by the KCMSD in response to this Court’s order of January 25, 1985; and
2. The programs upon which these funds may be spent must be for the sole purpose of improving student achievement as measured by the Iowa Test of Basic Skills and the Basic Essential Skills Test (BEST).
In this way the responsibility for determining what educational efforts are best suited to individual schools will be in the hands of those individuals with the knowledge, expertise and information necessary to make the best judgments. By October 15, 1985, in a cooperative effort between the KCMSD and the desegregation plan Monitoring Committee established by this Court, specific student achievement goals will be established. These goals should be similar to, but more specific than, those expressed in rebuttal testimony by Dr. Daniel Levine (reaching national norms on the elementary level in the area of reading in four years and improving the passing rate on the BEST test on the secondary level to a 95% pass rate). These accountability standards should include a time line showing how the KCMSD will progressively move toward achievement of the overall goals. Continued funding, both overall and of specific programs, will depend upon the school’s successful efforts at making reasonable progress toward achieving the overall goals, as well as the incremental steps toward those goals.
Improvement in student achievement to remedy the ills of segregation will take disciplined efforts. It will require schools with genuinely high standards and expectations, parents who support and encourage their children to fulfill their potential, and a school district in which teachers are considered valuable professionals. With these resources, and the commitment of the district, improvement can and will be made.
Magnet Schools
[9] Magnet schools can be utilized to assist the State of Missouri and the KCMSD in expanding desegregative educational experiences for its students (testimony of Dr. Daniel Levine at pp. 22,214, testimony of Dr. Eugene Eubanks at 22,445, testimony of Dr. Gary Orfield, testimony of Dr. Willis Hawley). However, to be a valuable and effective technique for increasing student desegregation, the themes for the magnet schools must be carefully chosen and based upon a survey of the target enrollment population. There must also be extensive planning concerning the implementation of the magnet programs (testimony of Dr. Susan Uchitelle, and Dr. Gary Orfield).
KCMSD currently operates one magnet secondary school (Lincoln Academy) and two magnet elementary complexes (Southwest Cluster and Swinney-Volker). Reduced levels of federal funding under the Emergency School Aid Act (ESAA) has meant that the KCMSD has not been able to provide the level of funding which these magnet schools originally received, and as such, these programs have not realized their full potential in drawing non-minority enrollment (testimony of Paul Holmes, KCMSD Exh. K–79).
Therefore, the KCMSD is ordered to submit a budget by October 15, 1985, to the Monitoring Committee for the existing magnet schools of Lincoln, Swinney-Volker and Southwest Cluster. This budget shall be both comprehensive and detailed and shall be limited to budget items which are directly related to enhancing the full desegregative drawing power of these schools. Furthermore, KCMSD shall conduct extensive surveys within the KCMSD and throughout the Kansas City, Missouri metropolitan area in order to determine what magnet themes appear to be most *35 likely to attract non-minority enrollment. This survey shall be completed by January 15, 1986, and a report filed with the Monitoring Committee, accompanied by a proposed marketing and recruitment plan. The marketing and recruitment plan shall include a budget. The State of Missouri shall pay for all costs in conducting the area wide survey and presentation of the report incurred by KCMSD, with such costs not to exceed $60,000. The KCMSD shall also submit to the Committee on or before April 15, 1986, its plan for implementation of additional magnet programs within KCMSD, including a detailed budget. Total costs for preparation of this report shall not exceed $25,000 and shall be paid for by the State of Missouri.

Staff Development
[10] Staff development is an essential element in any attempt to improve student achievement as a part of a desegregation plan (testimony of Willis D. Hawley). The KCMSD Plan calls for extensive staff development (KCMSD Plan p. 36–38). The District’s Plan would provide training to administrative personnel and teachers on the principles and goals of a desegregation plan, the implementation of effective instructional programs, effective methods for transmitting information to parents and community about desegregation, methods of enforcing a fair, equitable discipline program in a desegregated setting, and methods of dealing with transportation problems as well as familiarity with available community and school resources and a knowledge of applicable federal and state laws. Most of the training described in the KCMSD Plan is aimed at assisting in the desegregation of KCMSD and not aimed directly at the quality education components of this plan.
The State Plan incorporates staff development as a part of the individual components, such as the instructional management system component. It relies upon a train-the-trainer approach in which selected key personnel in each school would be provided extra training and those individuals would go back to that school and provide training to the remaining teachers.
KCMSD is ordered to establish a staff development program. This program will be developed in conjunction with the public relations programs to be implemented by the District. The desegregation public relations program, which is aimed at informing and soliciting the support of community members, shall use the KCMSD staff in spreading the word throughout the community about the desegregation plan.
In addition, following decisions made by the school advisory committees and the school board as to the expenditures of funds in the effort to improve student achievement throughout the district, specific training needs of the individual teachers and principals shall be determined and a staff development program planned and implemented. Stipends for after school, weekend and summer staff development sessions, shall be available only when it is impossible to conduct the training and development within the normal work schedule. A fund of $500,000 shall be provided to the KCMSD by the State of Missouri for the payment of stipends.
Mandatory Student Reassignment
In 1977 the KCMSD implemented a desegregation plan developed by approximately 65 community members chosen to represent parents, students, teachers and various Kansas City groups and organizations (testimony of Sue Fulson). A number of alternative proposals were submitted to the KCMSD School Board and the version eventually approved was designated “6C” (testimony of Dr. Paul Holmes, Sue Fulson). The goal of Plan 6C was to have a minimum of 30% minority enrollment, with the exception of kindergarten classes, in every KCMSD school. Prior to implementation of this plan the enrollment in KCMSD was 65.6% minority students. Twenty of the district’s schools were from 30 to 80% minority, 25 were less than 30% minority, and 41 were more than 80% minority (KCMSD Exh. K–2). Following the implementation of Plan 6C, boundary lines *36 were changed, elementary schools were paired and clustered, enlarged secondary attendance zones were created, allowing two-way reassignment of students, noncontiguous zoning was implemented, and as a result, more than 16,000 KCMSD students had their school assignments changed (testimony of Dr. Paul Holmes, KCMSD Exh. K–70–74, 76). Following Plan 6C implementation, no KCMSD school enrolled less than 30% minority students in grades 1 through 12. Enrollment since that time has decreased by almost 30%, while white enrollment has decreased by more than 44% (KCMSD Exh. K–2). In 1979–80 the United States Office of Civil Rights classified KCMSD as being “in compliance” with federal requirements for school desegregation under Title VI of the Civil Rights Act of 1964 (testimony of Ward). The 1984–85 assignment patterns are the same assignment patterns which were approved by the Office of Civil Rights in 1978 except for adjustments made due to school closings (testimony of Paul Holmes). The KCMSD enrollment for 1984/85 was 36,259 total students with 68.3% of them being Black, 26.7% being non-minority, 3.7% Hispanic, and 1.3% other minority groups (KCMSD Exh. K–74).
The KCMSD proposes to continue the existing student assignment plan, with appropriate modifications for any school closings (KCMSD Plan pp. 2–5). This proposal would require that any modifications for school closings be conducted so that the highest level of desegregation feasible will be achieved and so that each school in the KCMSD will achieve an enrollment of no less than 30% minority for grades 1 through 12. Furthermore, KCMSD’s plan would continue to restrict transfers which inhibit desegregation and permit voluntary transfers of students from schools in which they are in the racial majority to a

school in which they would be in the racial minority (KCMSD Plan p. 6).
The State Plan proposes to “reduce the percentage of black students in schools where they represent a disproportionate share of the students (compared to the enrollment of the District as a whole)....” (State Plan pp. 9–13). The State estimates that in order to achieve this goal and obtain an enrollment more proportionate to the district’s percentages as a whole, approximately 4,270 students would need to be transferred at a cost in excess of $5,000,000. Initially, however, the State proposes to conduct computer simulations in order to determine the feasibility of additional transfers to achieve a more proportionate enrollment in each school in the district (testimony of Dr. Terry Stewart). In conducting this study the State proposes to take into account all practical limits on actually achieving greater intradistrict racial integration. These limits include the importance of a student attending a school as near his home as possible, the important role that parent and student choice can play in making any reassignment plan work, and any other potential barrier to an effective reassignment plan (testimony of Dr. Terry Stewart, State Plan at p. 9).
Nineteen of the 50 elementary schools in the KCMSD presently have an enrollment of 90% or more black students. The enrollment in three of the eight junior high schools in the KCMSD is presently 90% or more black. Three of the eight senior high schools have enrollments which are 90% or more black (excluding Lincoln Academy South and North). (KCMSD Exh. K–74).
The KCMSD and the plaintiffs oppose any further mandatory student reassignment at this time. KCMSD’s witnesses expressed the opinion that generally mandatory student reassignment would result in further white withdrawal from the school district and specifically that, if the State’s plan was implemented, it could result in moving more blacks into racial isolation (testimony of Dr. Daniel Levine at 22,224, testimony of Dr. Eugene Eubanks at 22,447, testimony of Dr. Paul Holmes). In regard to the State plan, Dr. Holmes testified that if racial isolation is defined as a school with 50% or more minority, then in attempting to achieve student body ratios in each school which are proportionate to the district wide ratios, the State’s Plan could result in moving a black student from *37 a less racially isolated environment to one which is much more racially isolated. In addition to Dr. Eubanks and Dr. Levine, there was extensive testimony provided by other witnesses that implementation of any further mandatory student reassignment would result in what is known as “white flight.” (the withdrawal of white student enrollment to private schools or the exodus of white families to the suburbs). (testimony of Sue Fulson, testimony of Dr. Gary Orfield, testimony of Dr. Willis D. Hawley).
[11] [12] White flight is no excuse for school officials to avoid the implementation of a reasonable desegregation plan. Monroe v. Board of Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 1704, 20 L.Ed.2d 733 (1968). Further, concern over white flight cannot justify any decision to do less than what is necessary to secure the constitutional rights of the students of the KCMSD. Wright v. Council of the City of Emporia, 407 U.S. 451, 456–57, 92 S.Ct. 2196, 2200–01, 33 L.Ed.2d 51 (1972). Therefore, while white flight may be “cause for deep concern,” it cannot be accepted for achieving anything less than the “complete uprooting of the dual public school system.” United States v. Scotland Neck City Board of Education, 407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972).
However, “[t]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” Swann v. Charlotte Mecklenburg Board of Education, 402 U.S. at 24, 91 S.Ct. at 1280. Nor is the existence of a small number of one-race or virtually one-race schools within a school district “in and of itself the mark of a system that still practices segregation.” Id. at 26, 91 S.Ct. at 1281. “The criterion for determining the validity of provisions in a desegregation plan is whether they are reasonably related to the ultimate objective.” Tasby v. Wright, 713 F.2d 90, 97 (5th Cir.1983). Therefore, “[w]hile the fear of white flight cannot be accepted as a reason for not acting [citations omitted] the Court may elect a constitutionally permissible plan calculated to minimize white boycotts.” Id. at 99. That is why the concern over white flight may be taken into account “when it is not advanced to thwart mandatory desegregation (or to perpetuate segregation), but rather to promote a wider integration.” Parent Association of Andrew Jackson High School v. Ambach, 598 F.2d 705, 720 (2d Cir.1979). In fact, situations in which the United States Supreme Court has rejected use of white flight as a factor in determining or limiting a desegregation remedy were all cases in which a school board had invoked white flight in order to avoid real integration. Monroe v. Board of Commissioners, supra 391 U.S. at 450, 88 S.Ct. at 1700; Wright v. Council of the City of Emporia, supra 407 U.S. at 451, 92 S.Ct. at 2196; United States v. Scotland Neck City Board of Education, supra 407 U.S. at 484, 92 S.Ct. at 2214. Thus, while the concern over white flight cannot be accepted as a reason for achieving anything less than the “complete uprooting of the dual public school system,” United States v. Scotland Neck City Board of Education, supra at 491, 92 S.Ct. at 2218, the failure to include remedial measures to prevent such flight could itself be a reason why a desegregation plan could achieve something less than “complete uprooting.” See, Paul Gewirtz, Remedies and Resistance, 92 Yale Law Journal 585, 642 (1983). Recognizing the impact white flight can have on the effectiveness of a remedial plan is nothing more than recognizing that there is a

difference between “catering to bias” and seeking to minimize patron resistance. United States v. Board of Education, 554 F.Supp. 912, 924–25 (N.D.Ill.1983). This difference has been recognized by the Eighth Circuit in Clark v. Board of Education, 705 F.2d 265, 269–72 (8th Cir.1983) (in order to prevent white flight and stabilize the integration process in a system that was 65% black a district court may reduce the black population in some integrated schools and thereby maintain a number of all black schools); and in *38 Adams v. United States, 620 F.2d 1277, 1291–97 (8th Cir.) (to prevent white flight in a school system with 75% black enrollment, a desegregation plan need not reassign additional black children to schools with at least 30% black enrollment even though all-black schools remain), cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed. 2d 29 (1980), on remand sub nom., Liddell v. Board of Education, 491 F.Supp. 351, 356 (E.D.Mo.1980) (adopting plan), aff’d 667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1081, 102 S.Ct. 656, 70 L.Ed.2d 629 (1981).
[13] “Having once found a violation, the district judge or school authority should make every effort to achieve the greatest possible degree of desegregation, taking into account the practicalities of the situation.” Davis v. Board of School Commissioners, supra 402 U.S. at 37, 91 S.Ct. at 1292. Therefore, it is incumbent upon this Court to further explore any reasonable potential for achieving further desegregation. As such, the State’s proposal for further study, modified in its goal, must proceed. In proceeding the study should revise its goal. Instead of seeking to reassign students in order to achieve the same ratio of minority students to non-minority students in each school that exists in the enrollment of the district as a whole, the study should seek to determine the feasibility of further reductions in the percentage of black students in the 25 schools where the enrollment remains 90% or more black, while recognizing the need for students to attend schools as close to home as possible. Total cost for this study should not exceed $175,000 and it shall be completed by the end of the 1985/86 school year. KCMSD’s Plan 6C shall remain in full force and effect with any modification of the Plan being implemented only after review by the Monitoring Committee and approval by the Court.
The evidence is clear, further mandatory student reassignment at this time will only serve to increase the instability of the KCMSD and reduce the potential for desegregation. Unless and until this or other studies show that further mandatory student reassignment can achieve additional desegregation without destabilizing the desegregation which presently exists, then realization of further desegregation of the district must depend upon other components of this plan.
Volunteer Interdistrict Transfers
[14] To accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task. As this Court stated in its January 25, 1985 order, “because of restrictions on this Court’s remedial powers in restructuring the operations of local and state government entities,” any mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond the nature and extent of the constitutional violation this Court found existed. However, there are avenues available to the State of Missouri and the KCMSD which present the opportunity for increasing the desegregative educational experiences of the students within the Kansas City metropolitan area.
Achievement of AAA status, improvement of the quality of education being offered at the KCMSD schools, magnet schools, as well as other components of this desegregation plan can serve to maintain and hopefully attract non-minority student enrollment. In addition, voluntary interdistrict transfers may serve to provide additional opportunities for desegregated schools as well as desegregative educational experiences for KCMSD students. Such plans have received encouragement from the Eighth Circuit in similar situations, Liddell VII, 731 F.2d 1294 (8th Cir.1984) (en banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984). In St. Louis voluntary interdistrict transfers have resulted in increased desegregation (testimony of Dr. Susan Uchitelle).
Therefore, the State of Missouri shall actively seek the cooperation of each school district in the Kansas City, Missouri metropolitan area in a voluntary interdistrict transfer program. On or before the end of the 1985/86 school year the State of Missouri shall report to the Monitoring Committee *39 listing the suburban districts which have agreed to participate, stating how many students each district has agreed to accept as well as the number of students which would transfer to the KCMSD. KCMSD shall also report to the Monitoring Committee the number of its students which would transfer to a suburban district. If any of the suburban districts volunteer to participate in inter-district transfers, the program shall begin with the 1986/87 school year.
The State will be required to pay for the transportation and tuition costs of any KCMSD black student who wishes to transfer from a school within KCMSD in which their race is in the majority, (with preferences for students from schools with

enrollments of 90% or more black students), to a school where space is available in another school district in the Kansas City metropolitan area in which their race is in the minority. In addition, the State shall pay for all transportation costs and the foundation allotment for non-minority students living in other school districts, who transfer to schools in the KCMSD, having a minority enrollment of 50% or more. Furthermore, the State shall continue to pay to the KCMSD the full student foundation allotment for each student who transfers from the KCMSD to a suburban school district and to each suburban school district for each student who transfers from a suburban district to KCMSD. The receiving district will agree not to reject individual applicants unless there is a history of serious disciplinary problems, will allow the transfer student to remain in attendance until such student graduates or returns to the student’s home district, as long as that student satisfies all academic and other standards applicable to all resident students, will treat interdistrict transfer students in the same manner, in all regards, as they treat resident students, and will permit KCMSD to recruit applicants for interdistrict transfers within its district. Any additional agreements between KCMSD and any participating metropolitan area school district shall be presented to the Monitoring Committee for review and action. Furthermore, the State of Missouri will be required to provide a full-time counselor for every 100 students who transfer from KCMSD to a Kansas City, Missouri area metropolitan school district. This counselor shall be in the employment of KCMSD and shall spend a proportionate amount of time at the suburban schools in which the KCMSD transfer students are enrolled.
Finally, upon submission of its report to the Monitoring Committee concerning the willingness of other school districts to participate in such a voluntary program, the State shall include an estimated budget for the potential transfers.
Capital Improvements
KCMSD is currently utilizing 50 elementary school buildings, 9 junior high buildings, and 9 senior high school buildings (testimony of E. Allen Roth). The average age of the 68 school buildings utilized by the KCMSD is 58 years (testimony of E. Allen Roth).
The current condition of the 68 school facilities adversely affects the learning environment and serves to discourage parents who might otherwise enroll their children in the KCMSD (testimony of Dr. Levine, Dr. Eubanks, Sue Fulson, E. Allen Roth). The deterioration of the facilities is due to a deferred maintenance program which has extended over the past 10 to 15 years (testimony of E. Allen Roth). The deferred maintenance is a result of KCMSD’s lack of financial resources as evidenced by its inability to pass a capital improvements bond issue, although several attempts have been made since 1965 (testimony of Carl Struby).
The deteriorating conditions of the facilities include safety and health hazards, educational environment impairments, functional impairments, and appearance impairments (testimony of E. Allen Roth, KCMSD Exhibit K–81, Devine James Study). The problems include extremes of heat and cold due to faulty heating systems, peeling paint, broken windows, odors resulting *40 from inadequate and deteriorating ventilation systems, improper lighting, wiring problems, inadequate storage, lack of appropriate space for library and resource rooms, crumbling playground equipment installed over hard surfaces, water damage due to roof leakage, and deterioration of steps in school access areas (KCMSD Exhibit K–87, 67 slides of schools).
The improvement of school facilities is an important factor in the overall success of this desegregation plan. Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan.
During fiscal year 1985, under a Missouri statute permitting the organization of a not-for-profit corporation which would issue bonds for capital improvements to school buildings, the KCMSD raised $10,000,000 to permit correction of some of the more extreme problems within the school building facilities presently being used. Under that statute KCMSD makes rental payments to the not-for-profit corporation, which has been granted title to these buildings, out of its operating budget in the amount of approximately $1,300,000 annually. These funds are utilized to pay the bond obligations (testimony of Carl Struby).
At the request of the KCMSD, E. Allen Roth, a licensed architect, examined 19 of the 68 school buildings and for four of the school buildings prepared a detailed cost estimate and specifications for correcting facility deficiencies. Based upon these visits, the 1980 Devine James study, and taking of bids for the partial work, Mr. Roth concluded that total costs for building

rehabilitation in the KCMSD, to return the buildings to a point where they could be safe and appropriate for educational programs, would be between $55,000,000 and $70,000,000. Mr. Roth further estimated that the work could be completed within a three to four year time period (testimony of E. Allen Roth).
The State (State Plan p. 111) proposes a $20,000,000 facilities improvement program with the state making a one time contribution not to exceed $10,000,000. The purpose of this facility improvement program would be to promote and encourage the KCMSD to “strive for excellence in the care, maintenance, and upkeep of its facilities.” (State Plan at p. 11). The State indicated that first priority should be given to those schools in which the student population was 90% or more black. These funds would be to correct safety hazards at the most severe level of inadequacies. The State argues against the adoption of a more comprehensive facility improvement program as a part of the desegregation plan for four reasons. First, the present condition of the facilities, according to the State, is not traceable to the unlawful segregation found to have existed by this Court. Second, the present condition of facilities is due to the lack of maintenance on the part of the KCMSD and its failure to appropriate adequate funds to correct these problems. Third, the improvements are not necessary in order to carry out the quality education components of the desegregation plan (testimony of Carla Santorno). Finally, the State contends that the $55,000,000 to $70,000,000 estimates made by the KCMSD and its architect E. Allen Roth, are excessive and that $20,000,000 would be sufficient to cover the health and safety problems which exist in the school district.
[15] The State does not dispute that there are serious structural and environmental problems throughout the facilities utilized by the KCMSD. The State’s argument that the present condition of the facilities is not traceable to unlawful segregation is irrelevant. Tasby v. Wright, supra at 97; Haycraft v. Board of Education, 585 F.2d 803, 805 (6th Cir.1978); Clark v. Board of Educ. of Little Rock School District, 465 F.2d 1044 (8th Cir.1972). Further, *41 the State’s argument that the present problems are due to a lack of maintenance on the part of the KCMSD is simply further evidence of the detrimental effects that segregation has had on this school district’s ability to raise adequate resources. The State’s argument that the facility improvements are not necessary in order to carry out the educational components of a desegregation plan fails to address this Court’s responsibility in remedying the vestiges of segregation or in implementing a desegregation plan which will maintain and attract non-minority enrollment.
[16] The Court finds that in order for other components of this plan to be effective, it is imperative that improvements be made in the KCMSD’s facilities. In arriving at an equitable apportionment for the cost of facility improvements, the Court takes into consideration that KCMSD has spent somewhere between $15,000,000 and $18,000,000 in the implementation of Plan 6C for which it was not reimbursed and for the 1986 fiscal year has budgeted approximately $17,000,000 for desegregation programs which are not covered in this plan. KCMSD has available the sum of $10,000,000 for captial improvements. The Court is of the opinion that the State should match this figure plus an additional $17,000,000 for immediate facility improvements. It will not be possible nor prudent to attempt to make all necessary facility improvements simultaneously. Therefore, as soon as possible, the KCMSD shall submit a $37,000,000 capital improvements plan developed by architects and engineers to the Monitoring Committee to be implemented as expeditiously as possible under a cost effective improvement program. After capital improvements have been made, it will be incumbent upon KCMSD to include in its budget funds for the maintenance of the improved facilities.
These initial improvements shall focus on the following three priorities: (1) eliminating safety and health hazards; (2) correcting those conditions existing in the KCMSD school facilities which impede the level of comfort needed for the creation of a good learning climate; and (3) improving the facilities to make them visually attractive. After the submission of the $37,000,000 improvement plan, KCMSD shall then review other capital improvements needed in order to bring its facilities to a point comparable with the facilities in neighboring suburban school districts. At this time the Court reserves judgment as to whether the State will be required to make any additional expenditures for capital improvements beyond the $37,000,000 set forth above.
Plan Administration
[17] The success of this desegregation plan depends upon the KCMSD’s ability to integrate this plan’s components into ongoing district activities. Some administrative expenses are built into the component’s budget, such as early childhood development, effective schools, voluntary interdistrict transfers, magnet schools and summer school. Some components will generate little, if any, administrative overhead, such as before and after school tutoring.

The Court, however, will order the KCMSD to hire an additional public information specialist at a total cost of $25,000 with supplies and related expenses of $5,000, for a maximum expenditure of $30,000. This individual shall be responsible for developing and implementing a public information program regarding the KCMSD desegregation plan. The main focus of the public information effort shall be to solicit community support and involvement in the plan. Costs will be paid by the State of Missouri.
Beyond the public information program and the administrative expenditures built into the individual desegregation plan components, the KCMSD shall provide for administration of this plan with existing administrative personnel.
Monitoring Committee
[18] Monitoring of the desegregation plan is an essential function to the success of the plan (testimony of Dr. Daniel Levine, Sue Fulson, Dr. Willis D. Hawley). The *42 monitoring function is one which should be conducted by individuals or organizations independent of the parties involved, to enable the Court to have an objective assessment of the progress and problems encountered in implementing the desegregation plan.
There shall be a Monitoring Committee to oversee the implementation of this plan. The Committee shall be composed of ten individual members, four of whom shall be Black, four White and two Hispanic. It shall be organized as follows: A Budget Committee with three members, one of whom shall be the chairperson; a Desegregation Committee with three members, one of whom shall be the chairperson; an Education Committee with three members, one of whom shall be the chairperson; a general chairperson of the ten member committee who shall be an ex officio member of each of the three subcommittees; and an Executive Committee comprised of the general chairperson and the chairpersons of each of the three subcommittees.
The overall Monitoring Committee shall have the responsibility for conducting evaluations and collecting information and making recommendations for any modifications concerning the implementation of the plan.
At the outset, the Executive Committee should set out with specificity the areas of responsibility of each of the other three subcommittees. The Executive Committee shall have the responsibility of making all reports to the Court concerning progress or problems in the implementation of the plan. Each person on the Executive Committee shall have one vote. If however the Executive Committee is evenly divided on any issue, the general chairperson shall have the tie breaking vote. All decisions or recommendations of the Budget, Desegregation and Education Committees shall be referred to the Executive Committee for final review and action. Every attempt should be made by all members of the overall committee and each member of the subcommittees to reach an agreement on all issues and recommendations which will avoid bringing matters before this Court.
The members of the overall Monitoring Committee shall be selected by the Court. The State of Missouri, KCMSD and the American Federation of Teachers Local 691 (AFT 691) shall each submit the names of nine nominees for appointment to the Committees—three each for the Budget Committee, the Desegregation Committee and the Education Committee. One nominee submitted by each party will be appointed by the Court to serve on the committee for which the nominee was named. The plaintiffs shall submit the names of three nominees, one of whom will be appointed by the Court as the general chairperson of the Monitoring Committee. The nominees shall be submitted to the Court on or before Monday, July 15, 1985. Each nominee shall be prepared to attend a hearing to be held August 1, 1985 commencing at 10:00 a.m. The criteria this Court will use in selecting the general chairperson will include, among other things, the individual’s independence from the parties in this case, the individual’s commitment to the implementation of the desegregation plan, the ability of the individual to spend the required amount of time in directing the committee’s overall activities, and the individual’s background as it relates to community involvement, education and other related matters. The general chairperson’s role will be a pivotal one. The responsibilities will include insuring that the subcommittees are carrying out their functions in a responsible and efficient manner, that the Court is properly informed in a timely manner concerning problems and recommendations in regard to the desegregation plan and attempting to assist all parties involved in reconciling differences that might arise among themselves rather than presenting disputes for resolution by this Court.
Nominees submitted for each of the committees shall have experience and expertise in the areas of general responsibility of the committee for which they are nominated, they should be independent from any of the parties involved in the case, they should be committed to the successful implementation *43 of the plan and have the ability to spend the time required to

respond to the obligations of the committee.
Each member of the overall Monitoring Committee shall be appointed to serve a two year term. Any member of the Committee whose continued service is not in the best interests of the function of the committee may be removed by the Court for cause. Any vacancies shall be filled by the Court in the same manner in which the original appointment was made.
The Committee shall report to the Court at such times as it feels necessary concerning problems involved in the implementation of the plan except that it shall make an annual report on or before the first day of July of each year. The Committee shall have authority to make such investigations as it deems necessary in fulfilling its responsibilities for the monitoring of the plan.
To aid the Monitoring Committee in carrying out its function, the Court establishes a monitoring office composed of an executive secretary with appropriate professional training and experience to be appointed by the Executive Committee of the general Monitoring Committee, along with a clerical employee with an annual budget of $142,200, the cost of which shall be borne solely by the State. The budget shall be composed of the annual salary for the executive secretary, including fringe benefits, not to exceed $50,000; the clerical employee’s maximum salary, including fringe benefits, of $20,000; and there shall be $20,000 for equipment, supplies and other expenses for operation of the monitoring office. Office space for the monitoring office shall be furnished free of charge by KCMSD.
There shall be $52,200 made available for per diem payments to members of the Monitoring Committee. The general chairperson shall be paid $60 per hour for up to a maximum of 120 hours annually as per diem for that individual’s efforts on behalf of the committee. The other committee members shall receive $50 per hour for up to a maximum of 100 hours per year as per diem for their efforts on behalf of the committee. Expenses incurred by members of the committee shall be paid out of the $20,000 budgeted for equipment, supplies and other expenses.

Financing Summary
In its September 17, 1984 order this Court stated that “much of the costs for preparing and implementing a plan to dismantle the vestiges of a dual school system in the KCMSD should be borne by the State.” Jenkins v. State of Missouri, 593 F.Supp. 1485, 1506 (W.D.Mo.1984). This determination was based upon the Court’s earlier finding that the State had the “primary responsibility for insuring that the public education systems in the State comport with the United States Constitution.” Id. at 1506. However, as a defendant found to be liable, KCMSD should pay for part of the costs involved in the implementation of this Plan.
The KCMSD has spent considerable funds on programs supporting desegregation within the district. (See, KCMSD Exh. K– 80, K–95, K–78, K–78A). In the upcoming year KCMSD has budgeted between $15,000,000 and $17,000,000 for programs directly or indirectly related to desegregation and has provided approximately $15,000,000 to $18,000,000 in funding for implementation of desegregation Plan 6C since 1977.
The State of Missouri shall bear the estimated costs involved for a period of three years in the following components:

Improved Student Achievement

1st Year --------

2nd Year --------

3rd Year --------

TOTAL -----

4,025,000

5,725,000

7,425,000

17,175,000

Voluntary Inter-

Improved Student Achievement Voluntary InterDistrict Transfers Magnet Schools Student Reassignment Reducing Class Size Administrative Costs Staff Development Summer School AAA Status All Day Kindergarten

--------

--------

--------

-----

4,025,000

5,725,000

7,425,000

17,175,000

open

open

85,000

open

open open

open 85,000 (open)

175,000

open

open

175,000 (open)

2,000,000

4,000,000

6,000,000

12,000,000

30,000

30,000

30,000

90,000

500,000

-0-

-0-

500,000

222,500

454,500

454,500

1,131,500

2,369,250

1,419,250

1,419,250

5,207,750

546,000

546,000

546,000

1,638,000

AAA Status
All Day Kindergarten
Before and After School Tutoring
Early Childhood Development
Monitoring Ofﬁce and Committee
Capital Improvements
TOTAL

2,369,250

1,419,250

1,419,250

5,207,750

546,000

546,000

546,000

1,638,000

104,400

104,400

104,400

313,200

616,674

616,674

616,674

1,850,022

142,200

142,200

142,200

426,600

27,000,000

open

open

27,000,000 (open)

$37,816,024

$13,038,024

$16,738,024

$67,592,072

*44 The KCMSD shall bear the estimated costs in the following components, many of which will be for a minimum of three years:

Summer School

1st Year -------222,500

2nd Year -------454,500

3rd Year -------454,500

TOTAL -----
1,131,500

Summer School AAA Status All day Kindergarten Before and After School Tutoring Early Childhood Development Capital Improvements TOTAL

1st Year -------222,500

2nd Year -------454,500

3rd Year -------454,500

TOTAL -----
1,131,500

2,369,250

1,419,250

1,419,250

5,207,750

546,000

546,000

546,000

1,638,000

104,400

104,400

104,400

313,200

616,674

616,674

616,674

1,850,022

10,000,000

open

open

10,000,000 (open)

$13,858,824

$ 3,140,824

$ 3,140,824

$20,140,472

The current operating levy for the KCMSD is $3.75 (State Exh. 18, testimony of Carl Struby). However, the $3.75 levy when, adjusted under § 164.013 of the Mo.Rev.Stat. (the proposition C rollback), results in the KCMSD having an operating levy of $3.26 (testimony of Carl Struby, KCMSD Exh. K–97). The $3.26 actual operating levy will be further reduced as a result of the state-wide reassessment (§ 137.073 Mo.Rev.Stat., testimony of Carl Struby). The uncontradicted testimony of

KCMSD Board of Education treasurer Carl Struby is that the budget for the upcoming school year is presently $3,000,000 short of revenue and the only unallocated funds are an $850,000 to $1,000,000 contingency fund. Therefore, the KCMSD is presently unable to finance its portion of this school desegregation plan.
It is noted that legislation recently signed by the governor will permit the KCMSD to raise its reduced levy up to the preassessment level by a simple majority vote. Thus, after reassessment, local revenues will be able to be increased by a majority vote instead of the two-thirds vote which is presently required.
The presentation of a tax levy to the voters prior to the upcoming school year would be impossible because of the time constraints under which the school district is operating. Furthermore, it is extremely unlikely that such a proposal would receive the two-thirds majority presently required (testimony of Carl Struby, testimony of Sue Fulson).
The Eighth Circuit in the St. Louis desegregation plan recognized that “the district court’s equitable power includes the remedial power to order tax increases or the issuance of bonds....” Liddell VII at 1322. Further, the Eighth Circuit upheld the district court’s increase of a tax levy *45 when there was “no reasonable probability that such a tax levy would be approved by the required two-thirds vote in the aftermath of a desegregation order.” United States v. Missouri, 363 F.Supp. 739 (E.D.Mo.1973), aff’d, 515 F.2d 1365, 1372 (8th Cir.), cert. denied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975). See also, Griffin v. School Board, 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964) (where the Supreme Court upheld a district court’s order that the supervisors exercise their power to levy taxes to raise funds adequate to reopen, operate and maintain without racial discrimination a public school system).
While this Court has the necessary authority to order a tax increase to finance that portion of the desegregation plan for which the KCMSD has responsibility, this Court hesitates to take such action. When a Court considers the possibility of imposing a tax rate as an aspect of its desegregation decree, “there occurs a tension between two venerable maxims of the American tradition: ‘Taxation without representation is tyranny’ becomes the banner of some of those who are to be taxed, while the district court, safeguarding the effective implementation of its order, is deeply cognizant of the venerable phrase that “the power to tax involves the power to destroy.” McCullough v. Maryland, 17 U.S. (4 Wheat), 316, 427, 4 L.Ed. 579 (1819); Evans v. Buchanan, 582 F.2d 750, 777 (3d Cir.1978), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980).
[19] However, because the present financial resources of the KCMSD makes it impossible for it to appropriate funds necessary to implement the school desegregation order of this Court, and because of the extreme unlikelihood, due to the recent history of tax levy defeats and time constraints, that a tax levy proposal would be received favorably by two-thirds of the voting patrons of the KCMSD, it is hereby ordered that the tax levy rollback required by § 164.013 Mo.Rev.Stat., (the Proposition C rollback) shall be enjoined to the extent necessary to raise an additional $4,000,000 for the coming fiscal year. This one year procedure was utilized by the federal district court in the Eastern District of Missouri in Liddell v. State of Missouri, 567 F.Supp. 1037, 1056 (1983), and upheld by the Eighth Circuit Court of Appeals in Liddell v. State of Missouri, 731 F.2d 1294 (8th Cir.) (en banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984) (Liddell VII).
This rollback will be in effect for one year only. It will provide the KCMSD with an opportunity to present a tax levy proposal to its patrons at the next regularly scheduled school election. Therefore, it is ordered that the KCMSD shall submit a tax levy increase proposal to its patrons at the next regularly scheduled school election which, if approved, will provide funds sufficient to pay for its cost of the desegregation plan as previously outlined.
The implementation of a school desegregation plan must deal with constitutional law, state and local politics, educational theory and social relations, and do so all at the same time. Thus a school desegregation plan is more than a legal principle implemented through this Court within the KCMSD, but a process which requires the cooperation of all parties, and general acceptance by KCMSD patrons as well as the citizens of the State of Missouri, in order to be truly successful. The plan adopted by this Court represents an effort to give meaning to the constitutional mandate expressed by the Supreme Court thirty years ago, while seeking to be effective in the real world. The plan seeks to be supportive of those high principles which separate our society from those which lack a commitment to human dignity. But the success of this plan rests in others’ hands, for to have a society where equal justice under the law is a “living truth” requires commitment of more than this nation’s courts, but of the citizenry which those courts serve.
While jurisdiction is retained by this Court for certain matters as set forth in the foregoing order, the Court considers this order together with previous orders entered by this Court to be a final appealable *46 judgment in this case. The Clerk is therefore directed to remove this case from the Court’s docket.

ON PENDING MOTIONS
Several motions are pending in this case including KCMSD’s motion to amend the budget for the full-day kindergarten program, KCMSD’s motion for an order permitting personnel hired for the desegregation programs to be paid according to salary schedule, KCMSD’s motion for adjustment of the 1986/87 desegregation plan budget, KCMSD’s motion for approval of the 1986/87 magnet programs. In addition, plaintiffs filed a motion seeking to clarify whether Kansas suburban schools are a part of the voluntary interdistrict transfer program. Intervenor AFT Local 691 filed a motion for an order for additional funds to finance the desegregation plan. The motions will be granted in part and denied in part as outlined below in the following order.
Public Information
This Court allocated $30,000 to allow KCMSD to hire an additional public information specialist whose responsibility was to develop and implement a public information program regarding the KCMSD desegregation plan. The main focus of that public information effort was to solicit community support and involvement in the plan. There is little evidence that the District has fulfilled the intended goals of the Court’s mandate in this area. Therefore, KCMSD shall develop and submit by August 1, 1986 a plan to the Desegregation Monitoring Committee detailing how the District plans to accomplish the public information goals for 1986/87.
IMPROVING STUDENT ACHIEVEMENT
Triple AAA Achievement
The Missouri Department of Elementary and Secondary Education’s (DESE) annual evaluation of KCMSD revealed that the District had reached AAA status in all areas except one. KCMSD needs additional resources to meet the library or “school learning resource center” standards. The original library assessment was not conducted by trained library personnel (Testimony of Casner, p. 91). After KCMSD hired additional professional librarians under the desegregation remedial plan a new evaluation was conducted and presented to DESE for review. The DESE and KCMSD’s analysis as to materials needed is identical (Testimony of Casner, p. 93).
Further, a projected increase in student enrollment for school term 1986/87 will require the hiring of one (1) additional librarian in order to continue to meet AAA standards in this area.
Finally, due to the KCMSD’s established salary schedule many of the 125 professional staff and 31 teacher aides hired during year one of the desegregation program are eligible for increased compensation. Thus, actual year two costs, incorporating the increase in compensation, for 125 professional staff members and 31 teacher aides will be $3,821,786 (Testimony of Gaunt, p. 170).
The hiring of art, music, physical education and planning time teachers, as well as teachers aides, has brought the District from AA to AAA rating in the areas of teaching load and curriculum. The District now meets AAA standards for pupil personnel services through the hiring of additional counselors. And while additional library staffing may eventually be necessary to improve reading performance at low achieving elementary schools where a high proportion of economically disadvantaged minority students attend, KCMSD is now in compliance with AAA standards for librarians.
KCMSD is ordered to take those steps necessary to reach a AAA rating in all component areas during the spring 1987 DESE evaluation. Only one area lacks AAA rating: library resources. Sufficient funds will be provided to purchase, inventory and distribute the needed books and materials. The State of Missouri shall not grant AAA status to KCMSD based upon a *47 plan to acquire the needed resources. A student cannot read a book until it is on the library shelf, or use a globe until it is at

the school. Thus, the achievement of AAA ranking will be based upon the District’s actual resource inventory.
KCMSD is to budget $8,790,697 in order to become a AAA ranked district by the end of the 1986/87 school term. The State of Missouri will pay a maximum of $4,737,380 of this total amount, with KCMSD paying the balance of $4,053,317. Any carryover from year one of the desegregation remedial plan will be used to reduce the State’s and the KCMSD’s contribution in 1986/87. That carryover shall include any unexpended funds from the $950,000 originally allocated for library resources during year one.
For the 125 professionals and 31 teacher aides, the State will pay a maximum of $1,910,893 and KCMSD shall pay an equal amount. For one additional librarian, the State of Missouri and KCMSD shall split the $32,750 maximum cost of salary and fringe benefits equally. The KCMSD will continue to charge the least expensive personnel to the desegregation budget when multiple hirings occur.
For shelving required for the additional library resources, the State of Missouri and KCMSD shall share equally the maximum cost of $90,225. In the area of library resources the State shall pay no more than $2,725,000 and KCMSD shall pay the projected balance of $2,040,936, bringing the projected total to $4,765,936 (including the $950,000 originally allocated in year one budget). The State’s amount shall be a one time expenditure. KCMSD’s amount, $2,040,936, slightly higher than that amount needed to maintain the AAA library resources on an ongoing basis (Testimony of Casner at p. 95) shall be used annually to insure maintenance of AAA standard library resources in the remaining years of this desegregation plan.
In order to achieve AAA ranking KCMSD will be allowed $80,000 in additional personnel costs on a one time basis in order to purchase, inventory and distribute library resources. KCMSD shall submit a budget for review and recommendation to the Monitoring Committee on or before July 3, 1986 for these funds, which shall be evenly divided between the State of Missouri and KCMSD.
KCMSD shall report to the Monitoring Committee at least every 60 days, beginning not later than August 1, 1986, on their progress towards reaching district-wide AAA ranking. The report shall be detailed and include a specific analysis of progress being made by the District towards the purchase and distribution of the required resources.
The Court is firmly convinced that AAA status can be attained by the next evaluation by the DESE. The KCMSD Board of Education, superintendent, and all administrative personnel must take whatever steps are necessary in order for the District to achieve AAA status before the end of the 1986/87 school term. Such an achievement is the cornerstone in the District’s efforts toward improving student achievement. Substantial and sufficient resources area available for laying this cornerstone. When those resources are coupled with a commitment on the part of the Board of Education and administrators to reach this goal, then KCMSD will once again take its place among the AAA rated schools of this state. This Court, through its Monitoring Committee, will closely monitor the progress of the District toward achieving this goal, and looks forward to next spring when the patrons, all parties, and the District can share in the pride of regaining the AAA rating for the first time since 1977.
Summer School
The summer school program for the summer of 1986 is presently budgeted at a cost of $909,000, evenly divided between the State of Missouri and KCMSD. KCMSD has requested a budget expansion to $1,434,649 and the removal of caps which were contained in the June 14, 1985 order relating to per student costs. While the per student caps will be removed, the total budget for the summer school program for *48 the summer of 1986 shall be $996,000. In addition to the operating expenditures of $996,000, the summer school budget shall include a maximum of $200,000 for transportation. These costs will be evenly divided between KCMSD and the State. These figures are based upon projected enrollment at the elementary level of 1,480, 1,200 students at the junior high level and 1,000 students at the senior high level. A modified budget shall be submitted to the Monitoring Committee’s Executive Committee as soon as possible but no later than July 3, 1986. Detailed explanations shall be required in regard to the expenditures outlined in the proposed budget for the categories of awards, food, repair and maintenance, tuition and fees, and workshops. Furthermore, a detailed transportation budget shall be presented to the Monitoring Committee for review and recommendation within the same time frame. The enrichment and cooperation program which was approved in the June 14, 1985 order of this Court shall be deleted from that order and the KCMSD will not be required to operate such a program during the summer of 1985.

By January 9, 1987, the District shall report to the Monitoring Committee providing a detailed plan for the 1987 summer school program. This plan shall address the need to have continuity between the regular academic year and the summer school program as well as problem areas which have been identified in the December, 1985 summer school evaluation report and those identified in the next evaluation conducted by the KCMSD evaluation office. The report submitted to the Monitoring Committee shall address the specific recommendations for improving summer school contained in these evaluations, with specific attention being paid to the marketing of a summer school program to parents, improved communications with regular schools regarding the selection of students to attend summer school, reviewing the promotion/ retention policy as it relates to summer school, and providing more planning time for teachers.
Full Day Kindergarten
The full day kindergarten program is projected to have a student enrollment of 3,482 for the upcoming 1986/87 school term. In addition, federal funds from Chapter I programs which were used during year one of the desegregation plan to pay for 21 full day kindergarten teachers will not be available for that purpose in year two. This is due to federal regulations which govern the Chapter I program. The increase in enrollment and the decrease in federal funding available for full day kindergarten teachers requires that changes be made in the June 14, 1985 order of this Court. In addition, KCMSD’s established salary schedule requires that full day kindergarten teachers who taught during year one of the desegregation program, and will remain on staff for year two, are eligible for an increase in compensation.
KCMSD needs 158 kindergarten teachers for its projected enrollment of 3,482 kindergarten students. Prior to the remedial plan KCMSD had 100 non-Chapter I kindergarten teachers. Forty-one additional teachers were hired under year one of the desegregation plan. Thus an additional seventeen kindergarten teachers will be needed for 1986/87 school term. The increase in compensation for year one kindergarten teachers is $26,496 (Testimony of Giles at p. 31). Therefore, the KCMSD shall be allowed a maximum of 58 teachers, in addition to the 100 non-Chapter I kindergarten teachers in place prior to the remedial plan, at an average cost of $28,000. In addition, the District shall be allowed $26,496 to cover an increase in compensation for those teachers hired during year one of the desegregation remedial plan. Since a portion of these funds are being utilized to replace kindergarten teachers who were compensated from Chapter I federal funds, then the District shall report to the Monitoring Committee for review and recommendation, on or before August 1, 1986 concerning how the District plans to expend the Chapter I funds which are freed up by this additional expenditure. The Court will require that Chapter I funds *49 freed up as a result of this order to be spent in a manner compatible with the desegregation remedial plan.
Finally, the public relations staff member hired as a part of this desegregation remedial plan shall report to the Monitoring Committee on or before August 1, 1986 concerning what strategies the District has in place to inform and recruit students to its full day kindergarten program.
Before and After School Program
The before and after school program was operated in ten schools in the District. However only one of the ten schools had a before school component. Present funding is at $104,400. KCMSD has requested to expand the program to 20 schools with a budget of $275,433. Because of the plans to incorporate a before and after school component in the magnet school plan and because the District has only implemented a before school component in one of the ten schools, the District’s request for expansion will be denied at this time. The before and after school program, as envisioned by this Court, based upon evidence presented during the remedial hearing in May of 1985, is a program which has the opportunity for recruiting non-minority students. It is not exclusively a tutoring program but can serve as a program for before and after school supervision. Therefore, any tutoring which may be a part of this program need not be done by certified instructors but rather can be accomplished, as pointed out in the June 14, 1985 order by cross-age instruction or peer tutoring and parental involvement. Therefore KCMSD shall redesign its before and after school program to expand the before school component to more sites and shall analyze the present sites to determine whether or not they are the best sites for attracting desegregated enrollment. A revised budget, program sites, and a program synopsis shall be provided to the Monitoring Committee for review and recommendation on or before August 1, 1986.

Early Childhood Development Program
The present budget for the year two early childhood development program is $1,233,348. KCMSD proposes an increase in the budget to $1,551,787 as well as approval for the expansion of the opportunity classrooms in an amount equal to the carryover from the year one budget. The Court will approve the $1,551,786 budget but will require that any carryover from the year one budget be incorporated into that amount. Costs will be shared equally by KCMSD and the State.
The District shall report to the Monitoring Committee for review and recommendation on or before July 3, 1986 on its revised budget for the upcoming school term. Specifically, the District shall provide additional information concerning the following budget category areas: tuition and fees, membership dues, supplies and materials under both the parent education and parent involvement component, contractual services under the opportunity classrooms component, equipment and furniture (since the testimony was that these items had been purchased during year one of the program).
In addition, KCMSD shall provide ongoing reports on the progress of this program to the Monitoring Committee. The District shall provide these reports at least quarterly, beginning August 1, 1986, and the reports shall include, at a minimum, information concerning enrollment, location site, staffing and budget expenditures.
Effective Schools
The effective schools component of the desegregation remedial plan seeks to foster parental, patron, teacher and field administration staff involvement in the improvement of student achievement. The Court sought that involvement because effective changes in schools comes from the “bottom up” and not from the “top down.” The District has requested an increase of $250,000 in this program component area for four alternative schools. These schools are alternative schools with specialized programs and their enrollment is made up of *50 549 students from other schools throughout the District. The Court will expand the program to allow an allotment of $75,000 to be divided among these four schools on the basis of student population. In addition, this Court will reduce the overall expenditure for the effective schools program by the amount equal to those funds which were to be received by the seven magnet schools. Therefore, $525,000 will be subtracted from the overall allocation and $75,000 will be added to the balance, coming up with a total of $5,275,000 to be paid entirely by the State of Missouri. KCMSD will provide a budget for these funds to the Monitoring Committee for review and recommendation on or before August 1, 1986.
In order to achieve the goals of this program KCMSD shall not institute any procedures or strategies which would result in normal district level activities being paid for by the effective schools component. Nor shall KCMSD reduce any present district level activities and place the financial burden on individual schools to purchase these services utilizing effective school resources.
One of the critical areas in elementary schools identified in the May, 1985 remedial hearing was that of elementary reading alignment. Several components of this Court’s order of June 14, 1985 were intended in part to support a major reading alignment effort. These components included effective schools, reductions in class size, staff development, and summer school. While some progress appears to have been made with respect to elementary reading alignment, the KCMSD’s formative report of February, 1986 indicates that implementation problems have been encountered. The report states that some schools were continuing to “teach all the objectives in the Houghton Mifflin text, rather than the reduced number,” that this decision may have had a negative impact on staff development, that the majority of the reading resource teacher’s time was being devoted to curriculum development rather than assistance to schools regarding alignment and that the reading coordinator was hampered by a split assignment. The evaluation indicated that there was confusion surrounding the status of the alignment manual and that this confusion should be resolved as soon as possible.
In view of the importance of elementary reading alignment, an evaluation report will be prepared during September of 1986. The report’s purpose will be to determine how well teachers are implementing alignment and identify what problems are being encountered throughout the district. The report shall include identification of critical actions, time schedules, deadlines, resource allocations, and other recommendations for solving problems encountered with respect to reading alignment. The evaluation will be conducted by an external evaluator as provided in the Monitoring Committee portion of this order.

At the secondary level, reading comprehension is of central importance in improving student achievement. The degrees of reading power program (DRP) was intended to be a tool to assist in improving student achievement and producing independent learners. It appears, however, that problems have been encountered in implementing the DRP program. Based on the formative evaluation report submitted to the Monitoring Committee in February of 1986 there is uncertainty about the program’s leadership, a lack of teacher involvement outside the areas of English and reading, lack of instructional support, missing computer hardware and a lack of clarity regarding the program’s philosophy and district commitment.
In view of the importance of reading comprehension at the secondary level, an additional progress report on the DRP program will be prepared and submitted by KCMSD to the Monitoring Committee on or before July 15, 1986 describing critical actions, time schedules, deadlines, resource allocations and other details of a plan for solving problems encountered with respect to the DRP program.
Another major intervention program designed to improve secondary school student’s performance is the school within a *51 school (SWAS) program. A February, 1986 evaluation made numerous recommendations regarding the effective implementation of SWAS including the development of a coordinated curriculum for each of the SWAS areas; improvement in policies and procedures, provision of adequate materials, supplies and equipment, and improvement of staff development. KCMSD is ordered to submit a detailed plan for improved implementation of the SWAS program in 1986/87. This report should be submitted to the Monitoring Committee on or before August 1, 1986. The report shall include details concerning how much time of individual personnel involved will be devoted to SWAS program, as well as details on funding, staffing, staff development and time schedules for 1986/87.
Voluntary Interdistrict Transfer
[20] The State of Missouri was given the responsibility for actively seeking the cooperation of each school district in the Kansas City, Missouri metropolitan area in a voluntary interdistrict transfer program (VIDT). On June 4, 1986, the State of Missouri provided this Court with written responses from eleven suburban school districts. All school districts stated that they were not interested in becoming involved in a transfer program at this time. Several of the districts stated that their refusal to participate was based upon the pending litigation between KCMSD and themselves.
Some communication between the State and the Missouri suburban districts must be conducted confidentially. However, as an arm of the Court, the Monitoring Committee has the responsibility for overseeing what progress is being made in each of the components of the desegregation remedial plan including VIDT. The Committee cannot function, and thus the Court cannot properly respond, unless the parties provide it with sufficient information.
Beginning immediately, the State of Missouri shall renew contacts with the Board of Education of the individual Missouri suburban school districts in the Kansas City, Missouri metropolitan area concerning a voluntary interdistrict transfer program. The State will actively seek the cooperation of those districts in establishing such a program. In addition, the State shall seek to identify the present policy of each district in regard to accepting students on a tuition basis from outside their district, the conditions under which the district would consider participation in a voluntary transfer program, the number of students the District will be interested in accepting from KCMSD and the number of students who may transfer to the KCMSD. Furthermore, the State of Missouri shall report on the effort that has been made with each district and the results of those efforts. The reports will be due on or before October 1, 1986, January 9, 1987 and a final report will be due by May 29, 1987. Communication between the State and the districts will be kept in the strictest confidence by all parties to the communication and by all members of the Monitoring Committee.
Since the voluntary interdistrict transfer program could provide a significant opportunity for additional desegregation of KCMSD schools as well as desegregative educational experiences for KCMSD students, the State of Missouri must demonstrate that they are seriously committed to seeking the cooperation of each suburban school district in the Kansas City, Missouri metropolitan area. If the State does not demonstrate its commitment, then this Court will seek other methods of accomplishing this task at the State’s expense. While recognizing that pending litigation does impact upon the suburban District’s decision, the State should explore with suburban districts the conditions under which they would consider participation in order to reap the educational and financial benefits that are a part of this program.

Desegregation Monitoring Committee
[21] The Desegregation Monitoring Committee is an arm of this Court. A request for information from the Committee should be treated by all parties as a request for information from this Court. *52 Upon receipt of a request for information a party will respond in a prompt and thorough manner. If additional time is needed, an immediate request for such should be made to the Committee and the Committee is instructed to grant extensions of time when reasonable. However, if a party determines that it will not respond to a request for information from the Committee, for whatever reason, the party should immediately inform the Court of its intention, specifically stating the reasons.
The Committee has shown itself to be an effective and impartial group committed to achieving the goals outlined in this Court’s plan. Cooperation by all parties with the Committee will assist everyone in achieving the goals of the plan and is viewed by this Court as a responsibility which every party has.
In order to continue the functions outlined by this Court in the June 14, 1985 order the budget for the Monitoring Office will be increased from its present level of $142,200 to a total of $187,950. Funds for the budget will come exclusively from the State of Missouri. This $45,750 increase represents a $4,000 increase in the operating budget, a 2 ½% increase in salaries and fringe benefits, and a $40,000 increase in research funds. The $40,000 research pool may be utilized by the Committee for the purpose of completing specific research projects. There will be no change in the per diem budget for Monitoring Committee members; the Court is aware that there may be a variation in the amount of time spent by members of the different committees, therefore during the budget year, which begins July 1, 1986, if the Executive Committee deems necessary, it may request from this Court approval of a reallocation of funds in order to insure that sufficient per diem allocations are made for individual committee members.
Reallocation of Year One Budget
KCMSD has requested authorization from this Court for reallocation of funds under the full day kindergarten component. Enrollment in the full day kindergarten program was greater than originally anticipated resulting in a number of class sizes in excess of 25 students. KCMSD had 3,308 students enrolled in kindergarten as of January, 1985. In January of 1986 this number had increased to 3,363. Additional kindergarten teachers were needed because of this enrollment increase. As a result, the KCMSD hired 41 additional teachers, rather than the 39 additional teachers included in the June 14, 1985 order. KCMSD will be allowed to reallocate funds in the year one budget and pay for the two additional teachers hired for the full day kindergarten program out of the desegregation plan. In addition any remaining unallocated funds from the year one budget may be used to purchase furnishings and equipment for the added kindergarten rooms. However, the total amount of funds to be spent during the year one budget shall not exceed $1,092,000 with KCMSD and the State of Missouri paying equal shares of the total amount expended.
Salary Schedule
The June 14, 1985 order stated that in hiring personnel the KCMSD would be limited to a maximum cost of $28,000 for professional staff including fringe benefits. The maximum cost for individual teacher aides was to be $9,500 including fringe benefits. KCMSD is required to pay new personnel according to existing salary schedules. The District is now seeking a change in the June 14, 1985 order which would remove the cap on salaries set at $28,000 for professionals and $9,500 for teacher’s aides and instead utilize those figures as averages. KCMSD’s request will be granted and the District will be limited to an average cost of $28,000 for professionals including fringe benefits and $9,500 for teachers aides including fringe benefits. However, the total amount of funds which were budgeted for the affected components will not be increased. The KCMSD shall continue to charge the least expensive personnel to the desegregation budget when multiple hirings occur.

*53 Capital Improvements
A comprehensive capital improvement study has been completed by KCMSD and a report presented to the Monitoring Committee and this Court, detailing specific capital improvement needs by school. The original $37,000,000 budgeted in year one of the desegregation plan has been allocated toward the most critical capital improvement needs of the District. In the June 14, 1985 order this Court took note of the deteriorating conditions of the District facilities including safety and health hazards, educational environment impairments, functional impairments as well as impairments in the appearance of the facilities. This Court also found that improvement of school facilities is an important factor in the overall success of this desegregation plan and ordered the District to complete a study to determine what needed to be done in order to bring its facilities to a point relatively equal with the facilities in neighboring suburban school districts. This Court reserved judgment in the June 14th order as to whether additional expenditures for capital improvements beyond the initial $37,000,000 would be required to be made by the State of Missouri. At that time the Court also stated that after the capital improvements have been made it would be incumbent upon KCMSD to include in its budget funds for the maintenance of those improved facilities.
This Court will order additional capital improvements to be made. The State of Missouri will pay for these additional improvements. The Court authorizes the expenditure of up to $4,063,154 for capital improvements as outlined in the capital improvement study for schools in the Southwest Cluster. The Court authorizes the expenditure of up to $3,468,004 for the Swinney and Volker Elementary Schools. Finally, the Court authorizes the expenditure of up to $5,346,172 at the Lincoln North Academy. Total capital improvement expenditures to be paid for by the State are $12,877,330. In order to complete these capital improvements without displacing students from those schools the District is authorized to use up to a maximum of $480,000 of these funds for the purchase of classroom modules, if absolutely necessary. The District will be required to provide reports on at least a quarterly basis, beginning August 1, 1986, to the Monitoring Committee on progress being made in completing the capital improvements at the designated schools. Specifically these reports should detail the amount of work completed, the amount of funds expended, and the balance of work to be done. In addition, the District shall present on or before January 5, 1987 a plan to the Monitoring Committee detailing how the District will maintain the capital improvements made as a result of the desegregation plan, including last year’s work. This report will include budget estimates and how the District plans to raise sufficient funds for the maintenance of the improved facilities. The District shall also report to the Monitoring Committee on or before January 5, 1987 on the need for future capital improvements. Specifically the District shall present a report outlining what capital improvements remain to be done, the amount of funds required to achieve these improvements and a timetable. The report shall specifically detail what components of the capital improvements plan are considered by the District to be related to eliminating safety and health hazards, what portions are related to correcting conditions existing in the facilities which impede the level of comfort needed for creating a good learning climate, and what portions of the improvements relate to making the facilities visually more attractive.
Magnet Schools
[22] Magnet schools can be utilized to assist in expanding the desegregative educational experience for KCMSD students. A key to success is the commitment of the Board of Education, the superintendent, the administration, the staff of the schools, and the parents and patrons. That commitment, when coupled with quality planning and sufficient resources can result in the establishment of magnet schools which can *54 attract non-minority enrollment as well as be an integral part of district-wide improved student achievement.
KCMSD has presented to the Court a magnet school proposal for school term 1986/87. This proposal would include the three schools of the Southwest Cluster Investigative Learning Magnet, the Westport Community Applied Learning Magnet and the Lincoln College Preparatory Magnet. The themes, staffing, curriculum and budget are based upon thorough area-wide surveying in compliance with this Court’s June 14, 1985 order. The plan incorporates input from parents, patrons and professionals from throughout the District. It has substantial support within the KCMSD and has the potential for demonstrating the central administration’s ability to effectively implement and manage substantial educational improvements within the District.
The long term goal of this Court’s remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district.

In achieving this goal the victims of unconstitutional segregation will be restored to the position they would have occupied absent such conduct, while establishing an environment designed to maintain and attract non-minority enrollment. A review of this magnet school plan has been conducted in light of this goal. While the resources requested are substantial, the constitutional violations found to exist were also substantial. While the number of individual students benefited during the first year of the magnet school program will not be large, the individual benefit for each of those students will be very large and the long term benefit to the District is worthy of such an investment. Therefore, this Court is ordering the implementation of the Kansas City, Missouri School District’s magnet school plan with specific modifications.
At the Southwest Cluster KCMSD shall institute a fully magnetized school program in school term 1986/87. This program will include an extended year program with a budget of $423,500. The budget for nonsalary items will be $497,820. The personnel budget will be $3,777,116. This is a reduction in the amount of funds requested for personnel. The goals established for student teacher ratios within the magnet school plans will be deleted from the plan. The goals established for reduced class size in the June 14, 1985 order will be substituted in their place. In order to meet the goals established for student teacher ratios in the June 14, 1985 order the District will use funds over the next two school terms made available from the reduced class size component of the desegregation plan. However, the reduced class size component of the plan is a district wide component and the goals established shall be reached throughout the District without preference to magnet schools. These reduced class sizes, ones which were presented for adoption by KCMSD are more than sufficient to provide quality educational opportunities, individualized attention, and attract both minority and non-minority enrollment. Enrollment shall be as outlined in the magnet school plan. Therefore, the total operating budget for the Southwest Cluster Investigative Learning Magnet will be $4,698,436. The District will be required to pay for $2,590,598 and the State will be required to pay $2,107,838.
The Court will order the implementation of the Westport Community Applied Learning Magnet consisting of Swinney and Volker Elementary Schools. Total budget for the Westport Magnet School will be $3,522,031. Non-salary items will be budgeted at a maximum of $357,082 with the extended year program budget being $423,500. Personnel costs shall be limited to $2,741,449 with the same limitations on student teacher ratios as outlined previously in regard to the Southwest Cluster. The goals established for student teacher ratios in the June 14, 1985 order will be used for the magnet schools and funds from the reduced class size component over the next two school terms shall be utilized in order to reach those goals. KCMSD will be required to fund a total of $1,703,259 for *55 Swinney Volker with the State paying $1,818,772.
The Court will order the implementation of the Lincoln College Preparatory Magnet Program in the school term of 1986/87. The total budget for this program will be $4,152,260. The non-salary component of the budget will be $1,318,493 and the extended year program will have a budget of $90,000. Personnel costs will be no more than $2,743,767 with the same limitations placed on personnel as outlined for the previous magnet schools. That is, that the goals established in the June 14, 1985 order in regard to reduced class sizes shall be inserted in place of the goals established in the proposed magnet school plan. Funds shall be made available from the reduced class size component over the next two school terms in order to reach those goals. KCMSD will be required to pay $1,723,246 of the total Lincoln Magnet School budget with the State being required to pay a maximum of $2,429,024.
Quality planning, commitment of the superintendent and administrators, and responsible management, are absolutely necessary to insure that the resources approved by this Court for magnet schools are effectively and efficiently used to reach the goals of the remedial plan. Therefore, this Court will authorize a budget of $600,000 for administration of the magnet school program. Specifically, $164,835 will be allowed for central administration with $435,165 being made available for marketing and for planning to avert resegregation. This cost will be evenly borne by the State and the District.
The total amount of funds budgeted for the magnet school program will be $12,972,727 with the District paying $6,317,093 and the State paying $6,665,634.
In implementing the magnet school program in school term 1986/87 the District shall utilize the same desegregation goals for kindergarten that have been established for other grades and schools. The goal established for desegregative enrollment of 50% minority and 50% non-minority shall be measured on the grade and school level and not only on the elementary cluster level. The training provided for the staff of these magnet schools is extremely important and at least 70 hours of the total training package shall be conducted prior to the beginning of the school term with the total training package being approved by the Monitoring Committee prior to its implementation. Therefore, the training program shall be submitted for review and action by the Committee on or before July 25, 1986. Furthermore, the District shall utilize its standard involuntary transfer policy and procedures in regard to the vacated positions at these schools and shall adhere to the work day length agreement reached between the District and the AFT Local 691.

Further development of the magnet school program must be based upon making magnet schools an integral part of an overall effort to improve educational achievement. The magnet plan must be geared toward both remedial and desegregative goals and should maximize achievement of desegregation with a minimum amount of resources. The magnet program should provide long term stability in terms of future financing as well as incorporate a carefully designed marketing program based upon a clearly defined themes and curriculums. Finally, a quality magnet program should be based upon a careful analysis of the plans’ impact upon other components of the desegregation plan. Thus, future development of a magnet school program need not duplicate this initial phase of the magnet school effort. The District should provide to the Monitoring Committee and all parties a copy of their comprehensive magnet school program proposal on or before August 1, 1986. It will be measured against the criteria as outlined in this order.
Financing Summary
Following is an outline of the year two desegregation budget:

All Day Kindergarten

KCMSD ----797,248

STATE ----797,248

TOTAL -----
1,594,496

AAA

4,053,317

4,737,380

8,790,697

Before & After School

52,200

52,200

104,400

Effective Schools

5,275,000

5,275,000

Before & After School Effective Schools Summer School

52,200

52,200

104,400

5,275,000

5,275,000

598,000

598,000

1,196,000

Capital Improvements

12,877,330

12,877,330

Administration

30,000

30,000

Monitoring Committee

187,950

187,950

Magnet Schools

6,317,093

6,655,634

12,972,727

Voluntary Interdistrict Transfer

open

open

open

Magnet Schools

6,317,093

6,655,634

12,972,727

Voluntary Interdistrict Transfer

open

open

open

Student Reassignment

open

open

open

Early Childhood Development

775,893

775,893

1,551,786

TOTAL

12,593,751

35,986,635

48,580,386

*56 Except in the full day kindergarten component, any carryover from year one shall be used to fulfill year two budget requirements within the component.
CONCLUSION All parties, and all persons delegated with the responsibility for implementation of any portion of this plan, should clearly understand that this Court expects the plan to be implemented in a thorough and efficient manner. Whether agreeing or disagreeing with its individual components, the parties must comply with this plan as much as any statute and this Court will require each party and all individuals delegated with responsibilities for implementation to make a diligent effort, to carry out this plan. Failure to make a diligent effort may result in sanctions against a party or individual.
All Citations 639 F.Supp. 19, 34 Ed. Law Rep. 94

 
 807 F.2d 657 United States Court of Appeals,
Eighth Circuit.
Kalima JENKINS, by her next friend, Kamau AGYEI, et al., Appellants/Appellees, and
American Federation of Teachers, Local 691, Appellant/Appellee, v.
The STATE OF MISSOURI, et al., Appellants/Appellees, Park Hill School District R–5 and Dr. Merlin A. Ludwig, Superintendent thereof, et al., Appellees.
Nos. 85–1765, 85–1949, 85–1974 and 85–2077. |
Submitted Nov. 13, 1985. |
Decided Dec. 5, 1986. |
Rehearing Denied Feb. 5, 1987.
Synopsis Kansas city school district and four children brought action alleging that state, surrounding school districts in Missouri and Kansas, and several federal agencies including HUD had helped cause or had been part of a system of racial segregation among Kansas City metropolitan area school districts. The United States District Court for the Western District of Missouri, 639 F.Supp. 19, Russell G. Clark, J., imposed an intradistrict remedy against Kansas City school district and state of Missouri, rejected claim for interdistrict relief, found that HUD was not liable, and allocated costs of intradistrict remedy. Appeal was taken. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) suburban school districts were not liable for interdistrict violation; (2) plaintiffs’ arguments did not show that District Court erred in its judgment for HUD; and (3) intradistrict remedy ordered should be modified.
Affirmed as modified.
Ross, Circuit Judge, filed a concurring opinion.
Arnold, Circuit Judge, filed a concurring and dissenting opinion.
Chief Judge Lay, joined by Circuit Judges Heaney and McMillian, dissented.
Attorneys and Law Firms
*660 James Liebman, New York City, and Arthur Benson, Kansas City, Mo. (on rebuttal), for Kalima Jenkins.
Allen Snyder, Washington, D.C., for Kansas City, Missouri School Dist.
Counsel who presented argument on behalf of appellees were H. Bartow Farr III, Washington, D.C., for State of Mo.
George Feldmiller, Kansas City, Mo., for Consol. Suburban School Districts.
Robert McDonald, Blue Springs, Mo., for Individual Suburban Schools.
John Hoyle, Washington, D.C., for H.U.D.
Michael Gordon, Kansas City, Mo., for intervenor, American Federation of Teachers. Before LAY, Chief Judge, HEANEY, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and WOLLMAN, Circuit Judges, En Banc.*

Opinion
JOHN R. GIBSON, Circuit Judge.
This case arises from claims of unconstitutional racial segregation of school children in the Kansas City metropolitan area. After trial, the district court1 imposed an intradistrict remedy against the Kansas City, Missouri School District (KCMSD) and the State of Missouri with the State bearing approximately three-fourths of the cost. The district court found that the KCMSD and the State had not eradicated vestiges of the racially segregated dual school system once required under state law in violation of the Constitution. The claim for interdistrict relief in the form of consolidation or realignment of the suburban school districts (SSDs) was rejected as the SSDs were found to have eliminated all vestiges of their segregated school systems and there was no finding of interdistrict violation or interdistrict effect. The SSDs were dismissed from the action. The United States Department of Housing and Urban Development (HUD) also was held not liable. In this appeal, both the KCMSD and Kalima Jenkins, the named plaintiff in a certified class of present and future KCMSD students (Jenkins class),2 challenge the denial of interdistrict relief. The *661 Jenkins class also appeals the judgment in favor of HUD. In addition, both the KCMSD and the State challenge the scope and the allocation of costs of the intradistrict remedy ordered against each.
The district court’s findings and conclusion that the suburban school districts are not liable for interdistrict violation and may not be ordered to participate in interdistrict relief, on those issues not related to housing, are affirmed by the vote of five judges (Judges Ross, Fagg and Wollman join in this opinion; Judge Arnold concurs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).
The interdistrict findings and conclusion on the housing issues are affirmed by an equally divided court (Judges Ross, Fagg and Wollman join in this opinion; Judge Arnold files a concurring and dissenting opinion in which he concludes that the case should be remanded to the district court to consider whether there are interdistrict housing violations which would require relief; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).
The dismissal of the SSDs and HUD at the close of the plaintiff’s evidence is therefore affirmed.
The intradistrict remedy ordered against the State of Missouri and KCMSD is modified in some respects with five judges concurring (Judges Ross, Fagg and Wollman join in the opinion and Judge Arnold concurs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).
This suit was filed in 1977 by the KCMSD, the School Board, and four children of two School Board members. The complaint alleged that the State, surrounding school districts in Missouri and Kansas, and several federal agencies including HUD3 had helped cause or had been part of a system of racial segregation among Kansas City metropolitan area school districts. In October 1978, the district court dismissed the Kansas defendants for want of jurisdiction. It also concluded that the KCMSD lacked standing to bring an action against the State as party plaintiff and realigned the KCMSD as a defendant. School District of Kansas City, Missouri v. Missouri, 460 F.Supp. 421 (W.D.Mo.1978).4
In May 1979, an amended complaint was filed against KCMSD, and the federal and Missouri defendants named in the original complaint. The amended complaint made two distinct allegations: first, of an interdistrict violation, committed by the SSDs, and the State and federal defendants; and second, of an intradistrict violation within the KCMSD, committed by the KCMSD and the State defendants. KCMSD pursued its claim by filing, in July 1979, a cross-claim against the State, reiterating the allegation of interdistrict violation made by the Jenkins class, and seeking indemnification against any intradistrict liability.
Trial to the court commenced October 31, 1983.5 Over the course of 64 trial days, plaintiff called over 140 witnesses, offered 2,100 exhibits, and designated approximately 10,000 pages of depositions. Before hearing evidence in response, the district court, based on standards set out by the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), dismissed the eleven SSDs from the *662 case under Fed.R.Civ.P. 41(b).6 The court found that school districts in Missouri are autonomous and that none of the districts had committed any acts with intent to discriminate on the basis of race, to contain blacks in the KCMSD, or bar blacks from the SSDs. The court further found that within four years after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), and in most cases within a shorter

time, all the SSDs had eradicated the vestiges of their dual school systems and were operating unitary systems. The court further found that none of the alleged discriminatory actions committed by the State or the federal defendants had caused any significant current interdistrict segregation. The district court therefore denied interdistrict relief. See generally Order of June 5, 1984.
The district court then heard additional evidence and, on September 17, 1984, issued its order holding the State and the KCMSD liable for racial segregation of students within the KCMSD. Jenkins v. Missouri, 593 F.Supp. 1485 (W.D.Mo.1984). The court observed that before 1954, the State and the KCMSD had maintained a racially segregated dual school system. The court found, in the existence of twenty-four KCMSD schools with a black enrollment in excess of 90%, and in other areas, vestiges of the now unlawful dual school system. It therefore held that the State and the KCMSD, under principles announced by the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 301, 75 S.Ct. 753, 756–57, 99 L.Ed. 1083 (1955) (Brown II ), had failed in their affirmative duty to dismantle the unconstitutional pre–1954 system. The court also held that HUD was not liable, finding that HUD had followed a balanced approach to sponsoring subsidized housing projects in both innercity and suburban areas.
On June 14, 1985, after a two-week hearing on the scope of appropriate relief, the court, 639 F.Supp. 19 (1985), issued a remedial order requiring the State and the KCMSD to fund compensatory and remedial educational programs and necessary capital improvements in KCMSD schools. The plan is projected to cost $87,000,000 over the next three years, with the State bearing approximately $67,000,000 and the KCMSD approximately $20,000,000. See Memorandum Opinion of June 14, 1985 at 41–42.
In this appeal the Jenkins class challenges the district court’s dismissal of HUD, and joined by KCMSD, its dismissal of the SSDs, and its denial of interdistrict relief. The KCMSD also challenges the district court’s realignment of the KCMSD as a party defendant. The State challenges the scope of the district court’s remedy and the allocation of costs.
INTERDISTRICT LIABILITY FINDINGS
In Milliken, 418 U.S. 717, 94 S.Ct. 3112, the Supreme Court held that an interdistrict remedy may not be imposed absent a finding of a constitutional violation within one district producing a significant segregative effect in another school district. Id. at 744–75, 94 S.Ct. at 3127. Without an interdistrict violation and interdistrict effect, there is no constitutional wrong requiring an interdistrict remedy. Id. Plaintiffs advanced to the district court three theories to support their claim of interdistrict violation and effect, requiring the imposition of an interdistrict remedy in the form of consolidation of the KCMSD and SSDs:
[F]irst, that the SSDs, as agents of the state, were guilty of operating a regional system of segregated schools that centered on and impacted Kansas City with blacks and made the suburbs whiter before 1954; second, that the SSDs failed in their affirmative duty to eliminate the *663 vestiges of the dual school system; and third, that the SSDs are liable for the effects of actions by the KCMSD and other defendants and can therefore be included in an interdistrict remedy.
Order of June 5, 1984 at 5. The district court found, based on the Milliken holding, that there was lack of proof of discriminatory intent in the establishment or change of any school district boundary and thus distinguished the interdistrict cases upon which the plaintiffs relied. It rejected the arguments that the SSDs were not separate and autonomous but were instead agents of the State. It further rejected the argument that, as agents and subdivisions of the State, the SSDs must be included in an interdistrict remedy absent any finding that they had committed specific violations by their own initiative.
The court examined the plaintiffs’ argument that the pre–1954 dual school systems had caused racial segregation in the Kansas City metropolitan area. The court acknowledged the substantial increase in the KCMSD black population from 1910 to 1960, but found that the increase resulted principally from the unusual economic and employment ramifications of the World Wars and intervening Depression. Order of June 5, 1984 at 17. The absence of black schools in the SSDs, it found, had not discouraged black families outside or within Missouri from moving to and living in those districts. The district court also rejected the argument that within the SSDs any vestiges or significant effects of the pre–1954 dual school system remained. The acts thirty years past, the court found, had negligible current effects. While some of the SSDs had dual school systems in the pre–1954 era and some did not,7 after Brown I each had disestablished its pre–1954 school system with deliberate speed

and all vestiges of those systems have long since disappeared. The district court entered separate findings with respect to each SSD. It found that all were unitary, most by 1955, in immediate compliance with the mandate of Brown I, two more by the 1957–58 school year, and the last, Park Hill, was fully integrated by the 1959–60 school year. Id. at 43–95.
The court then considered the plaintiffs’ second theory, that the SSDs had failed in their duty, pursuant to the mandate of Brown II, to eliminate vestiges. The district court found that the establishment of an association of regional school districts did not negate the autonomy of the individual SSDs, and that the sharing of sales tax revenues by certain of the SSDs whose area may have been partly within the Kansas City, Missouri, city limits did not amount to a constitutional violation. Id. at 19– 21. Further, a juvenile home, local special and vocational education programs, and particularly the creation of certain vocational education districts were examined and found not to have been constitutional violations on the part of the SSDs. Id. at 21–26. The district court also examined a statute enacted by the Missouri General Assembly in 1957 enlarging the size of a city that should constitute a single school district.8 The court found that the enactment was not driven by an intent to concentrate black students within KCMSD, and therefore, was not an intentional interdistrict violation. Id. at 28–29. The court also examined the SSDs’ response to recommendations of the Spainhower School District Commission of 1979, regarding realignment of boundaries so as to create some twenty school districts in the state, and with respect to financing and local control, and found no evidence that any of the SSDs rejected or declined to consider these proposals for reasons at all related to *664 race. It further rejected arguments based upon employment practices in the SSDs.
The district court finally analyzed in detail plaintiffs’ third theory, that the SSDs may be included in an interdistrict remedy because the effects of others’ discriminatory acts were felt within the SSDs. It found no evidence that white families had been lured to or black families discouraged from living in the SSDs. Nor did any of the factual evidence concerning housing implicate any of the SSD defendants. Id. at 34–35. The steady increase in black enrollment in the SSDs since 1968, particularly in Raytown, Hickman Mills, Center, and Grandview districts,9 and the fact that in 1980, 23,434 blacks resided outside the principal contiguous area was found to refute the testimony of plaintiffs’ experts. The court rejected white-flight theory as a constitutional violation by the SSDs. Id. at 36–39.
The district court also addressed plaintiffs’ claims regarding housing violations. While the court found that before 1948, in several areas within the SSDs restrictive covenants were enforced, the court further found that such enforcement did not have a current significant segregative effect.10 With respect to public housing, it found that such housing is available in significant amounts within every SSD and that the HUD section 8 program is available in all parts of the metropolitan area. No testimony linked any SSD to the transition of neighborhoods within the KCMSD from white to black and the accompanying white flight which had taken place in Kansas City since 1940. Id. at 41.
The court therefore concluded that there was no interdistrict violation and interdistrict effect. Thus, as required by Milliken, interdistrict relief was denied. Id. at 95. The court stressed that awarding relief “ ‘would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.’ ” Id. at 96 (quoting Milliken, 418 U.S. at 746, 94 S.Ct. at 3128). It rejected a cumulative effect and found plaintiffs’ evidence de minimis at most and legally insufficient to justify the relief sought against the SSDs. Id. at 97–98. The court thus dismissed the case against the SSDs.
INTRADISTRICT LIABILITY FINDINGS
The district court then tried the intradistrict issues and found that the inferior education indigenous to the State-compelled dual school system has lingering effects in the KCMSD. Jenkins v. Missouri, 593 F.Supp. at 1492. The district court recognized the stipulation that before 1977 KCMSD was not unitary and did not comply with federal regulations. Id. at 1489. KCMSD was majority white in enrollment until 1970 and could have achieved mathematical racial balance in its schools. Id. at 1492. Instead, it chose to operate some completely segregated schools and other integrated ones. In 1974, twenty years after Brown I, 39 schools were more than 90% black; another 38 had 10% to 90% black enrollment. Eighty percent of all blacks in the district attended schools that were 90% black. Only 19% of the blacks attended a school that was 10% to 90% black. Id. at 1492–93. As of 1977, 25 one-race schools under the pre–1954 system remained 90% or more of the same race. Id. In addition, four schools that were black under the dual system were predominantly black when closed in 1968. Id. at 1492. In the 1983–84 school year no KCMSD school had less than 30% black enrollment, but 24 schools were racially isolated at more than 90% black. Id. at 1493.

The court found that the KCMSD still has not entirely dismantled the dual school system. The court then made particular findings on the liberal transfer policy, the neighborhood school policy, and attendance *665 zones, and found that these, rather than facilitating integration, fostered the maintenance of segregated attendance patterns. Intact busing was found to have been segregative in intent and effect, but, as it was stopped in the 1960’s, no continuing violation existed. The court found that plans had not been adopted for district-wide desegregation until 1977–78. Id. at 1493–94.
Similarly, the court imposed liability on the State based on its intentional creation of the dual school system and the obligation that existed to disestablish such a system.11 As vestiges of the State’s dual school system lingered in KCMSD, the obligations of KCMSD and the State had not been met. The court rejected the State’s argument that constraints imposed by the state constitution or statutes prevented its affirmative disestablishment of the dual school system. It held the issues in favor of the Jenkins class and against KCMSD and the State and held the issues in favor of KCMSD and against the State on the cross-claim. Id. at 1505.
LIABILITY OF HUD
With respect to the claim against HUD, the court examined Federal Housing Administration appraisal practices before 1949, cooperative agreements with the City of Kansas City under the auspices of the Housing Authority of Kansas City (HAKC) and the Land Clearance for Redevelopment Authority (LCRA), and section 8 certificates. It found that HUD followed a balanced housing policy and attempted to insure that assisted housing was located in both innercity and suburban areas. There was no evidence that HUD’s site selection and approval practices for federally subsidized multi-family housing substantially affected the racial composition of schools within KCMSD. Id. at 1499. The court pointed to HUD’s affirmative marketing efforts to apprise participating section 8 certificate-holders that affordable housing was available throughout the entire community. Id. at 1500. There was no evidence that HUD routinely denied blacks FHA mortgages, that it discriminatorily foreclosed on mortgages held by blacks, or that it avoided selling the homes on which its insured mortgages had been foreclosed to blacks. Further, there was no evidence that neglect of HUD-held homes was racially discriminatory in intent or purpose. The issues were held in favor of HUD.
I.
We have had earlier occasion to deal with the legal standards governing interdistrict school desegregation cases. See, e.g., Little Rock School District v. Pulaski County Special School District No. 1, 778 F.2d 404 (8th Cir.1985); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).12 We draw our basic guidance from the Supreme Court’s decision in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974):
Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of *666 a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy. 418 U.S. 744–75, 94 S.Ct. at 3127 (citations omitted). Two courts of appeals have read this language to require clear proof of cause and effect of a constitutional violation, and a careful delineation of the extent of the effect, before an interdistrict remedy may be invoked. Goldsboro City Board of Education v. Wayne County Board of Education, 745 F.2d 324, 332 (4th Cir.1984); Lee v. Lee County Board of Education, 639 F.2d 1243, 1256 (5th Cir.1981). As the Fifth Circuit stated in Lee:
We believe the Court’s deliberate choice of phrases such as “substantial” or “direct cause” and “significant segregative effect” also expresses an insistence that in cases where an interdistrict remedy

is requested, there must be clear proof of cause and effect and a careful delineation of the extent of the effect. In the absence of such a showing, school district lines are to be carefully observed and desegregation remedies confined to orders affecting the school district in which the condition of segregation is manifest.
Id. at 1256.
[1] [2] In addition to “clear proof” of the interdistrict violation and its interdistrict effect and “a careful delineation” of the extent of the interdistrict effects, it must be shown that the interdistrict segregative effects are current. Lee, 639 F.2d at 1260. Federal courts may not invoke their equitable power to fashion a remedy to correct a condition unless it currently offends the Constitution. As the Court stated in Milliken: “A federal remedial power may be exercised ‘only on the basis of a constitutional violation’ and, ‘[a]s with any equity case, the nature of the violation determines the scope of the remedy.’ ” Id. at 738, 94 S.Ct. at 3124 (quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971)); see also General Building Contractors v. Pennsylvania, 458 U.S. 375, 399, 102 S.Ct. 3141, 3154– 55, 73 L.Ed.2d 835 (1982) (a remedial decree should “extend no farther than required by the nature and the extent of that violation”).
II.
[3] We must also recognize at the outset the importance of the district court’s factual findings in school desegregation cases. As we stated in Little Rock:
We will not reverse the district court’s factual findings with respect to liability unless we conclude that they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City [470 U.S. 564], 105 S.Ct. 1504 [84 L.Ed.2d 518] (1985); Pullman-Standard v. Swint, 456 U.S. 273, 287–90 [102 S.Ct. 1781, 1789–91, 72 L.Ed.2d 66] (1982); Dayton II [v. Brinkman ], 443 U.S. [526] at 534 n. 8 [99 S.Ct. 2971 at 2977 n. 8, 61 L.Ed.2d 720 (1979) ]; Columbus Board of Education v. Penick, 443 U.S. [449] at 468–71 [99 S.Ct. 2941 at 2952, 2983, 61 L.Ed.2d 666 (1979) ] (concurring opinions of Burger, C.J., and Stewart, J.); United States v. United States Gypsum Co., 333 U.S. 364, 395 [68 S.Ct. 525, 542, 92 L.Ed. 746] (1978). Nor will we reverse such findings when they are based on inferences from other facts unless the rigorous standards of the same rule are met. Anderson, 105 S.Ct. at 1511. The Supreme Court has emphasized the importance of the clearly erroneous rule in civil rights cases, see, e.g., *667 Pullman-Standard v. Swint, 456 U.S. at 287– 90 [102 S.Ct. at 1789–91], and, more particularly, in school desegregation cases:
The elimination of the more conspicuous forms of governmentally ordained racial segregation * * * counsels undiminished deference to the factual adjudications of the federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.
Columbus Board of Education v. Penick, 443 U.S. at 449, 470 [99 S.Ct. at 2941, 2983] (1979) (Stewart, J., concurring, with whom Burger, C.J., joins, concurring).
Little Rock, 778 F.2d at 410–11. See Morrilton School District No. 32 v. United States, 606 F.2d 222, 230 (8th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980); see also Riddick v. School Board of the City of Norfolk, 784 F. 2d 521, 533 (4th Cir.1986) (factual findings by a district court in school desegregation cases are entitled to great deference on review “especially where the presiding judicial officer has lived with a case for many years”).
The Supreme Court in Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), has explained that the trial judge’s role is to determine fact, and duplication of these efforts in the courts of appeals “would very likely contribute only negligibly to the accuracy of fact determination.” Id., 105 S.Ct. at 1512. The Court stated:
The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct. 1562, 1576, 23 L.Ed.2d 129] (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.
Id. at 1511–12.
Chief Judge Lay’s dissent,13 in violation of the teachings of Anderson, duplicates the role of the district court and is an exercise in appellate factfinding. A reading of the dissent is sufficient to demonstrate the rejection of the district court’s carefully weighed findings of fact and substitution of those more desirable, frequently based on evidence considered and rejected by the district court.14 While on some *668 occasions placing the mantle of the clearly erroneous rule about the discussion, it is evident that Chief Judge Lay was engaging in an original evaluation of the voluminous and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the district court. This is directly contrary to the mandate of Anderson.
III.
The Jenkins class does not challenge the findings of the district court. Rather, it argues that the findings establish continuing interlocking, interdistrict violations whose cross-district nature and metropolitan-wide scope require relief encompassing the SSDs. It argues particularly that there is an interdistrict violation or effect under Milliken and Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), and points to several independent bases for interdistrict relief. These are: the pre– 1954 interdistrict system of locating dual schools; the State’s and the SSDs continuing interdistrict violations; KCMSD’s officially sanctioned suburban flight violation; the State’s market-wide dual housing systems; and LCRA and HAKC’s racial steering and siting violations.
The Jenkins class further argues that the district court denied interdistrict relief based on a “concatenation of legal error” as to interdistrict liability. It argues that in six respects the district court abandoned controlling legal principles in concluding that: the existence of dual schools before 1954 does not now amount to a constitutional violation; the SSDs were autonomous and independent; the SSDs were absolved of liability for their pre–1954 violations and erroneously ignoring the post–1954 segregative acts and omissions; without a finding of fault, the SSDs may not be required to take part in eliminating the effects on children in their districts of the State’s metropolitan-wide dual school and housing violations; the SSDs did not invidiously entice white families to move into their district, and that unconstitutional actions within one district making it blacker which reciprocally affects adjacent districts by making them whiter may not provide an independent basis for interdistrict relief; and absent intentional segregative acts by each school board sought to be included, a finding of liability against actors in the housing market is irrelevant to the SSDs. The housing argument will be discussed separately in IV and V.
Finally, the Jenkins class argues that the district court applied an improper burden and standard of proof of significant effects in an improperly piecemeal fashion. It further argues that the district court improperly fragmented the evidence of unconstitutional acts rather than evaluating the evidence as a whole. It argues that the district court’s finding of six distinct metropolitan-wide constitutional violations satisfies Milliken’s significant segregative effect standard. It urges under Swann that proof of a system with a history of segregation warrants a presumption against schools that remain disproportionate in their racial composition. It argues that the proof acknowledged by the court, of prior de jure segregation on an area-wide basis, coupled with a patently continuing racial imbalance among the SSDs’ student and faculty compositions, established the liability of the SSDs. It further argues that the district court improperly rejected much of the evidence, and improperly barred the presentation of quantitative evidence, as irrelevant.
The broad scope of these arguments is considerably narrowed when viewed in light of significant factual findings of the district court. These findings are not challenged as clearly erroneous. The district court found that the SSDs were autonomous and locally controlled,15 and that the *669 State was powerless to require a merger or consolidation.
The district court recognized the stipulation that before 1954 the State mandated dual school systems and mandated SSDs’ compliance in maintaining dual systems. It found that all SSDs met their constitutional obligation to operate a unitary school system within a maximum of four years after Brown I, most of them doing so within one year. The dismantling of the dual system was accomplished with all deliberate speed. Order of June 5, 1984 at 99. It specifically found that the evidence established that there was no barrier to movement of blacks into the SSDs. Id. at 39. It found the pre-Brown acts thirty years past to have negligible present effects. It further found that the faculty and staff composition of the SSDs do not affect the

racial composition of the student bodies. The court found the faculty were hired and promoted on a racially neutral basis. The court could not conclude that there was an interdistrict violation from any possible intradistrict factors.
The factual argument based on the pre-Brown interdistrict system of locating dual schools flies in the face of the district court’s finding that the pre-Brown acts have negligible present effects. Chief Judge Lay’s dissent suffers from a similar infirmity as the district court made numerous findings interspersed through its order concerning the negligible and de minimis nature of any such effects. These findings are not clearly erroneous.16 These findings make unnecessary a detailed recitation of the pre–1954 evidence.
The argument that the State and SSDs participated in continuing interdistrict violations is contrary to the district court’s finding that the SSDs had met their constitutional obligation to operate unitary school systems within four years after Brown I, most of them doing so within a year. Similarly, the argument that KCMSD officially sanctioned suburban flight looks first to KCMSD’s violation *670 which the district court clearly found to be only intradistrict in nature. The argument based on flight into neighboring SSDs making the southeast area schools blacker and recipient SSD schools whiter, thereby causing racial segregation in adjacent districts, is contrary to the district court’s finding that there was no barrier of movement to blacks to the SSDs. The district court specifically found that there was considerable increase in the black enrollment of the SSDs, particularly Center, Grandview, Hickman Mills, and Raytown.
Similarly, in the enumeration of six legal errors, three are based upon pre–1954 actions of the SSDs. The district court’s findings that these acts have negligible present effect fundamentally undermines the validity of these arguments. As we have seen, the argument based on the actions of KCMSD and white flight run contrary to the factual findings mentioned above.
So also, the argument that the SSDs, though not at fault, would still be liable to take part in eliminating the effects on children in their districts of the State’s metropolitan-wide dual school violations, suffers from two fatal deficiencies. It ignores the lack of finding of any such effects, and is contrary to the district court’s findings that within at most four years after Brown I, any vestiges of the dual school systems that may have existed in the SSDs had been eliminated.
[4] The Jenkins class further argues that Swann raises a presumption against schools that are disproportionate in their racial composition. The district court did not err in rejecting the Swann presumption. Milliken was careful to point out that disparity in the racial composition of pupils within a single district merely signals an inquiry into the causes for pronounced racial identifiability of schools within one school system. The Milliken limitation of this presumption is the subject of comment by the Fifth Circuit in Lee v. Lee County Board of Education, where the court stated:
It seems important to note also that Milliken, unlike Swann and Keyes v. School Dist. No. 1, 413 U.S. 189 [93 S.Ct. 2686, 37 L.Ed.2d 548] (1973), did not sanction the use of any presumptions on the question of the cause of interdistrict segregation. Thus, while Swann, as noted above, permits an inference that the continued existence of one-race schools in a system that formerly practiced de jure segregation is a vestige of such segregation, and Keyes permits one to infer the existence of systemwide de jure segregation from proof that school authorities have pursued an intentional policy of segregation in a substantial portion of a school district, Milliken refused to sanction a presumption that significant disparities in the racial composition of autonomous school districts resulted from impermissible action by those districts and thus justified imposing upon them the burden of remedying conditions of segregation existing in other districts. The Milliken Court noted that both Keyes and Swann merely involved “the use of a significant racial imbalance in schools within an autonomous school district as a signal which operates to shift the burden of proof [which] is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy.” 418 U.S. at 741 n. 19 [94 S.Ct. at 3125 n. 19] * * *.
639 F.2d at 1254.
Contrary to the argument of the Jenkins class, cases of this court do not adopt the Swann presumption in interdistrict cases. See Morrilton School District No. 32 v. United States, 606 F.2d at 230; see also United States v. Missouri, 515 F.2d 1365 (8th Cir.), cert. denied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975); Haney v. County Board of Education, 410 F.2d 920 (8th Cir.1969). They simply recognize that racial gerrymandering, which the district court specifically found is absent here, will make school authorities responsible for the foreseeable effects. So also, the argument concerning the presumption runs directly contrary to the teachings of *671 Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047–48, 48 L.Ed.2d 597 (1976), that there must be a showing in a school desegregation case of “a current condition of segregation” resulting from intentional state action. The district court’s finding that the SSDs were autonomous prevents a conclusion that there is a single system to which such a presumption applies.

[5] [6] The arguments of the Jenkins class run contrary to the facts found by the district court.17 In essence, in the detailed recitation of evidence, it seeks to have this court substitute its judgment for that of the district court. This is contrary to the general rule of Anderson v. City of Bessemer City, supra, and to the specific dictate of this court that we give “undiminished deference to the factual adjudications of federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.” Little Rock, 778 F.2d at 410–11.
IV.
We next consider arguments advanced by the Jenkins class that racially discriminatory acts by the State in housing-related areas justified interdistrict relief involving the SSDs. Before considering the district court’s findings on this matter, we must address the class’ argument that the district court misread Milliken in deciding whether the SSDs could be required to participate in an interdistrict remedy. In doing so, we must read all of Milliken and all of the district court’s order. According to the class, the district court read Milliken as holding that each SSD could not be required to participate in an interdistrict remedy absent a finding that that SSD had engaged in racially discriminatory conduct.
The passage from Milliken set forth above in Part I, supra, made plain that, before a federal court may impose an interdistrict remedy, “it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district.” 418 U.S. at 744–45, 94 S.Ct. at 3127. Specifically, the court must find that racially discriminatory acts “have been a substantial cause of interdistrict segregation.” Id. at 745, 94 S.Ct. at 3127. Absent this showing, “there is no constitutional wrong calling for an interdistrict remedy.” Id. On the facts before it, the Court was forced to conclude in Milliken that:
With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.
Id.
The Court’s decision in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, two years later, forcefully emphasized this central holding of Milliken. Justice Stewart wrote for the Court:
Once a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” * * * In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any significant segregative effects in the suburbs. * * * The desegregation order in Milliken requiring the consolidation of local school districts in the Detroit *672 metropolitan area thus constituted direct federal judicial interference with local governmental entities without the necessary predicate of a constitutional violation by those entities or of the identification within them of any significant segregative effects resulting from the Detroit school officials’ unconstitutional conduct. Under these circumstances, the Court held that the interdistrict decree was impermissible because it was not commensurate with the constitutional violation to be repaired.
Id. at 293–94, 96 S.Ct. at 1544–45 (emphasis added) (citations omitted); see also Goldsboro City Board of Education v. Wayne County Board of Education, 745 F.2d at 328 (“An independent school district which has not caused segregation in a neighboring independent district has no duty to rectify a racial imbalance in the other districts.”).
[7] [8] Milliken and Hills make clear that we may grant interdistrict relief only to remedy a constitutional violation committed by the SSD, or to remedy an interdistrict effect in the SSD caused by a constitutional violation in KCMSD. The district court first carefully considered whether the SSDs had violated the Constitution. It found they had not. Indeed, the district court concluded that to award relief in this case would, as the Court concluded in Milliken, “impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy.” 418 U.S. at 745, 94 S.Ct. at 3127.

Order of June 5, 1984 at 96. It further found that the Jenkins class had not established any acts or omissions by the SSDs “which have had a substantial segregative impact in any other district.”18 The district court was compelled to make this inquiry by Milliken and Hills, stressing as they do the significance of the commission of a constitutional violation. The court’s consideration of the appropriateness of interdistrict relief would have been incomplete without this inquiry. Milliken makes plain that the issue of whether the parties are constitutional violators must be considered as well as the issue of whether there is a constitutional violation in one district causing a significant segregative effect in a neighboring district.
Moreover, contrary to the argument of the class that the court looked only to the culpability of the SSDs, the scope of the order is far broader. The court’s order admittedly emphasizes the absence of culpability of the suburban districts. However, the court explicitly recognized that under Milliken “there must be evidence of a constitutional violation in one district that produces a significant segregative effect in another district.” Order of June 5, 1984 at 14, 95. The district court compared the theories before it with those in Milliken. It noted that only the schools in one district were affected and that the remedy must be limited to that system. In examining the cause and effect issue, the court noted that “not only is plaintiff’s evidence here blurred as to cause and effect, there is no ‘careful delineation of the extent of the effect.’ ” Id. at 96 (quoting Lee, 639 F.2d at 1256). The district court thus dealt not only with the issue of whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effects. See V, infra. When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met.
In Bell v. Board of Education, 683 F.2d 963 (6th Cir.1982), the Sixth Circuit suggested a number of practical problems in attempting to order school districts to remedy housing violations:
We do not find any case addressing the argument that a school board otherwise innocent of segregative intent is liable for the discriminatory housing practices of other governmental agencies. We decline to accept this argument. Under this argument the discriminatory conduct of the FHA in making housing loans and local housing authorities in the construction *673 and rental of public housing is attributable to school boards. Such a proposal places too heavy a burden on the schools to remedy wrongs for which they are no more or less responsible than the plaintiffs, the courts, the churches, the Congress or other institutions. Plaintiffs do not suggest how the schools, after a finding of liability, would go about remedying this problem or what kind of order a federal court could enter that might as a practical matter have a chance of changing the fact that black and white families live in separate neighborhoods in most towns and cities.
Id. at 968 (footnote omitted).
[9] The Supreme Court has given consistent admonition in Hills and Milliken that federal courts may not “restructur[e] the operation of local governmental entities that were not implicated in any constitutional violation.” 425 U.S. at 296, 96 S.Ct. at 1546. The district court’s findings amply establish that the SSDs were not “implicated” in the State’s housing violations. See Part V.
We have considered that culpability is an important factor in interdistrict analysis. In Little Rock, 778 F.2d 404, we ordered that the boundaries of the North Little Rock School District remain intact “in partial recognition of the fact that the nature and extent of its interdistrict violations are less severe than those of the other defendants.” Id. at 435. Judge Arnold’s separate concurring and dissenting opinion recognizes that the remedy to be imposed against the SSDs must be “limited by the fact that the SSD is not itself a constitutional violator.” Post at 694.
We recognize that Morrilton School District No. 32 v. United States, 606 F.2d 222, states that school districts may be required to participate in a remedy when “there was no evidence implicating them in a direct way with the establishment” of the segregated district. Id. at 228. Morrilton is a gerrymandering case. Its broad language must be limited to its facts, an interdistrict violation in the consolidation of school districts, with the effects felt in each.19 An attempt to imbue Morrilton with broader force disregards not only its salient facts, but also the Seventh Circuit precedent it quotes: “If the state has contributed to the separation of the races, it has the obligation to remedy the constitutional violations. That remedy may include school districts which are its instrumentalities and which were the product of the violation.” Morrilton, 606 F.2d at 229 (quoting United States v. Board of School Commissioners, 573 F.2d 400, 410 (7th Cir.), cert. denied sub nom. Bowen v. United States, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978)). Here the district court clearly found that the SSDs were autonomous, not mere instrumentalities of the State, and *674 their boundaries not the product of any constitutional violation by the State. Despite plaintiffs’ urging, the language of Morrilton is limited to its facts, and does not reach the issues we face

today.
V.
The Jenkins class argues that a dual housing violation, fueled by State enforcement of racially restricted covenants and felt in virtually every other housing program in the three-county area touching lending, appraisal, and sales practices, effectively channelled black and white low-income families to separate communities. Such violation and effects, it argues, were interdistrict, and therefore require the interdistrict remedy of consolidation. The Jenkins class further argues that as part and parcel of the State’s dual housing market violations, there were constitutional violations by the LCRA and HAKC, which diverted blacks exclusively to the black areas within the KCMSD.
The district court made a general finding that not only is the evidence “blurred as to the cause and effect, there was no ‘careful delineation of the extent of the effect.’ ” Order of June 5, 1984 at 96. It made specific findings that negate the existence of significant interdistrict current effects in the SSDs.20 As Milliken requires an interdistrict violation causing a significant segregative effect in another district, these findings pose an insuperable barrier to granting interdistrict relief.
The district court found that school district boundaries had not constrained black movement in any way, id. at 39, and no acts of the SSDs contained blacks in KCMSD or kept them out of the SSDs. Id. at 3. The absence of black schools in the defendant districts before Brown did not discourage black families from outside or within Missouri from moving to and living in those districts. Id. at 18. The district court found that there was steady increase in black enrollments in the SSDs since 1968, and in 1980, 23,434 blacks resided outside the principal contiguous area. Id. at 36–37. We have observed the increase in black enrollment in Hickman Mills, Center, Grandview, and Raytown. See note 9, supra.
The court found that the substantial increases in the KCMSD black population were in large part due to the unusual economic and employment ramifications of the World Wars and intervening Depression. Id. at 17. None of the SSDs were shown by the expert Dr. Tobin to have played any significant role in housing matters or to have exerted any control whatsoever over the private decisions people made about where to live. Id. at 37–38. The district court made numerous findings concerning housing choices, economics, and job opportunities. Jenkins v. Missouri, 593 F.Supp. at 1490. In rejecting the expert testimony of Dr. Kane, the court pointed to the importance of job location, ethnic clustering, and personal preference. Id. at 1491. These findings demonstrate the importance of personal choice,21 referred to by at least two courts as “voting with feet.” See Riddick, 784 F.2d at 537; Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425, 1435 (5th Cir.1983).
Regarding the existence of racially restrictive covenants, stressed by the Jenkins class and by Judge Arnold in his concurring and dissenting opinion, the district court made it plain that the restrictive covenants have no current effect in the SSDs. *675 The district court found no evidence that the covenants were enforced by state courts following Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). It recognized the tremendous housing growth in many suburban areas after 1948, when the covenants were a nullity. That blacks presently live in locations previously covered by restrictive covenants further undermines their significance. Order of June 5, 1984 at 39.22
These findings of the district court that we have outlined above deal with conditions or effects that would have been expected had there been an interdistrict effect in the SSDs flowing from housing violations committed by the State or other actors in KCMSD.
Judge Arnold’s concurring and dissenting opinion argues, as does the Jenkins class, that Evans v. Buchanan, 393 F.Supp. 428 (D.C.Del.), aff’d 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975), and United States v. Board of School Commissioners, 637 F.2d 1101 (7th Cir.), cert. denied, 449 U.S. 838, 101 S.Ct. 114, 66 L.Ed.2d 45 (1980), both approved interdistrict remedies based in part upon housing discrimination practiced by state actors. Post at 689.23 In Evans, the district court found that governmental authorities had provided public housing almost exclusively within the confines of Wilmington and restricted the availability of private and public housing to blacks in suburban New Castle County. 393 F.Supp. at 435. In Board of School Commissioners, the Seventh Circuit affirmed a finding that all public housing in the county had been located within the boundaries of the Indianapolis public school district and this was the segregative intent of state agencies.24 637 F. 2d at 1110–11.
In this case the district court findings are far different. There was no lack of balance between federally assisted housing

within the KCMSD and the suburban areas, as demonstrated by the 6,832 HUD-insured or subsidized multi-family units within KCMSD and 9,872 such units in the eleven SSDs. *676 Jenkins v. Missouri, 593 F.Supp. at 1499. HUD efforts were designed to insure that participating section 8 certificate-holders were aware that affordable housing was available throughout the entire community and that they were informed of their rights under the fair housing laws. Id. at 1500. The court pointed to the affirmative marketing efforts in the Parvin Estates area, located in predominantly white North Kansas City, which were never able to attract more than 12% minority residents. Id. The district court further found no evidence that the practices of HUD in site selection and approval for federally subsidized multi-family housing had a substantial effect upon the racial make-up of schools in KCMSD. Id. at 1499. The findings contained in the analysis of HUD’s liability also relate to LCRA and HAKC.
The facts relied on to support the housing violations in Evans and Board of School Commissioners are directly contrary to those found in this case. These cases simply give no assistance to the argument that there have been constitutional violations by housing actors having a significant segregative effect in the SSDs.
[10] Other findings on housing practices are significant. The district court specifically found that FHA appraisal practices before 1950 had at most a de minimis effect on present racial housing patterns. It examined LCRA practices and its role in administering urban renewal programs under the Housing Act of 1949. It found that HUD had investigated LCRA and issued a report in April 1972 finding discrimination in LCRA’s referral practices and in requiring that such practices be ceased and reports filed. Failure to correct this led in June 1973 to refusal to fund the program and a cooperative agreement between HUD, LCRA, and the City of Kansas City by which the city assumed responsibility for relocation under the Act. The relocation report showed that during the period from 1971 to 1976, only 174 black families were relocated. Jenkins v. Missouri, 593 F.Supp. at 1497–98. Again, the finding of the district court concerns and is limited to intradistrict claims. This finding is not sufficient to justify remand to the district court for consideration, as Judge Arnold suggests, of what interdistrict effect may have resulted from such actions.
The district court found that while the HAKC constructed seven family projects between 1952 and 1963 within the model cities or urban renewal areas, the location was in accordance with congressional acts and the assignment practices were approved by HUD. Id. at 1498–99. The court reviewed HUD policies and found expenditures to be balanced between KCMSD and the suburban areas. Id. at 1499. It further found no evidence that the practices of HUD in site selection and approval for federally subsidized multi-family housing substantially affected the racial make-up of schools within the KCMSD. Id.
These findings clearly were made with reference to the claims against HUD. They do not apply to the housing practices in KCMSD. They belie the possibility of interdistrict effect occurring in the SSDs.
Another weakness immediately is apparent in analyzing the Jenkins class’ arguments in the context of the district court’s findings. The activities of LCRA and HAKC to which attention is primarily pointed, the investigation and the change in practices, both occurred in the 1970’s after KCMSD had experienced the substantial increase in black school population. The exhibit relied upon by the district court in its findings demonstrates that the KCMSD black population was 18.9% in 1955– 56, that it had grown to 30.7% in 1961–62, and had reached 50.2% in the 1970–71 school year. The substantial increase which resulted in the district becoming majority black thus had occurred before the particular events to which the Jenkins class points. To argue that alleged LCRA and HAKC violations created these interdistrict effects simply ignores logic.
The court specifically found that KCMSD assignments of children to particular schools had an intradistrict effect and were not influenced by any SSD. Further, these *677 actions did not have a significant effect on the enrollment in any SSD. Order of June 5, 1984 at 38.25
The court considered many non-governmental housing factors and rejected the theory that liability may be imposed upon the SSDs for being the recipients of people moving for whatever reason. The court found that red-lining, steering, and blockbusting practices by private real estate agents, which may have affected the racial composition of KCMSD, were not the actions of KCMSD or of any SSD and are beyond the control of any school district. The transition of neighborhoods from white to black and accompanying white flight existed in Kansas City since the 1940’s, but no testimony linked the SSDs to the process. Id. at 41. Absent a nexus between the conduct of the SSDs and the policies or practices of independent housing actors, the court would not hold the SSDs liable for racial imbalance. Id. at 42.
Judge Arnold stresses the district court’s findings that there is a dual housing market impacting blacks in the KCMSD and causing the public schools to swell in black enrollment, 593 F.Supp. at 1491, and that the State had encouraged racial

discrimination by private individuals. Id. at 1503. The court went no further but commented that the question of State liability would be close if it hinged solely on this encouragement of private discrimination. It then proceeded to base its finding against the State on the intentional creation of the dual school system in KCMSD and the failure to eradicate its vestiges. The Jenkins class makes much of these statements by the district court. Nevertheless, they fall short of making a specific finding of a constitutional violation, and certainly make no finding of any interdistrict effect. That the findings are in the district court’s separate opinion concerning intradistrict liability prevents extension of such findings to arguments regarding interdistrict effect in the SSDs.
[11] Thus, even accepting the Jenkins class’ arguments that the district court misread Milliken by improperly limiting its inquiry solely to whether the SSDs were guilty of committing constitutional violations, we conclude that the factual findings of the district court effectively foreclose findings of interdistrict effect in the SSDs flowing from constitutional violations with respect to housing that may have occurred in KCMSD.26 It is, of course, evident from the findings that there were no constitutional violations in the SSDs. Under Milliken this answers the arguments made by the Jenkins class, as well as the further articulation in the arguments of KCMSD, and forecloses efforts to require the SSDs *678 to be subject to the claim for interdistrict relief, be it consolidation or some step less drastic.
To consider isolated bits of evidence, de minimis in nature, and to mix this with speculation is insufficient to support the conclusion that there are additional factual issues not passed upon by the district court. The findings made were adequate to dispel the conclusion required by Milliken that there be significant segregative effects in the SSDs caused by actions of a constitutional violator in KCMSD.
The housing discussion is not complete without another word of caution. Plaintiff’s expert, Dr. Gary Orfield, testified that the Kansas City metropolitan area, located in both Missouri and Kansas, comprised a single housing market. Dr. Kane testified that 7,239 black students now in Missouri schools would be in Kansas schools had there not been housing discrimination. Record at 7669–70, Pl’s Exhibit 1265–R. A number of witnesses called by plaintiff testified their children were moved from the KCMSD to Johnson County, Kansas. Record at 6722–23, 6809, 6863–64, 6953. The district court dismissed the Kansas districts from this action in its order of October 6, 1978. School District of Kansas City v. Missouri, 460 F.Supp. at 431. Accordingly, it made no findings on these issues. This evidence, however, points to the serious complications present in a claim based on housing violations where the housing market extends into another state and there is movement from an impacted district into the other state.
VI.
The Jenkins class relies particularly on decisions from Wilmington, Louisville, Indianapolis, and Allegheny County, in which interdistrict remedies had been ordered. These cases involved gerrymandering; the present case does not. The district court specifically found that the establishment and maintenance of school district boundaries was a local matter in Missouri, determined through local initiative, and uninfluenced by racial animus. The district court thus held the gerrymandering cases inapposite. We agree.
Evans v. Buchanan, 393 F.Supp. 428, considered the effect of Delaware legislation explicitly prohibiting the state board from altering the boundaries of the Wilmington school district, fixed as coterminous with the Wilmington city limits. The district court found no racially discriminatory purpose in the Act’s freezing of the Wilmington district’s boundaries. Id. at 439. It held, however, that the Act helped to maintain the racial identifiability of the Wilmington and the suburban New Castle County school districts and thus contributed to the segregation of the races. Id. at 445–46. The district court also found that the Wilmington district and the suburban districts were not meaningfully separate and autonomous. Id. at 428.
Similarly, in Newburg Area Council, Inc. v. Board of Education, 510 F.2d 1358 (6th Cir.1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975), the court observed that while the county was established by statute as the basic educational unit, “school district lines in Kentucky ha[d] been ignored in the past for the purpose of aiding and implementing continued segregation,” and that “[s]uch disregard continue[d] to have an effect on the racial imbalance in the county’s schools * * *.” Id. at 1360. In addition, the court specifically recognized that both the Louisville and Jefferson County school districts had failed to eliminate all vestiges of state-imposed segregation. Id. at 1359. Accordingly, it is clear that unlike the present case, the Louisville boundary lines were purposefully manipulated to maintain segregated school districts.

United States v. Board of School Commissioners, 637 F.2d 1101, involved the exclusion of certain school districts from the Uni-Gov legislation which perpetuated the segregated white schools in suburban Marion County. Id. at 1105. The issue involved was whether the school boundaries should coincide with the expansion of the boundaries of the City of Indianapolis. The Fourth Circuit affirmed the findings *679 that the decisions were made with discriminatory purpose. Id. at 1108.
In Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir.), cert. denied, 459 U.S. 824, 103 S.Ct. 55, 74 L.Ed.2d 60 (1982), the court pointed to findings that in 1971 the state and county boards intentionally created a district which was 63% black, and four nearby districts that were from 87% to over 99% white. Id. at 1111. This process involved the redrawing of school boundaries, and as such was a constitutional violation. Id. at 1120. The violation was interdistrict in nature and required interdistrict relief.
These cases all involve governmental action fixing or ignoring boundaries with discriminatory intent. The findings in the case before us are to the contrary. These cases are therefore distinguishable as are the boundary cases such as Morrilton, considered by this court. See Part IV, supra. These decisions upon which the Jenkins class so heavily relies, when viewed in light of the findings made by the district court, plainly have no applicability to the present case. The district court therefore correctly rejected arguments based upon them.
VII.
To the contrary, other decisions relied upon by the district court carry great force. Lee v. Lee County Board of Education, 639 F.2d 1243, distinguishing Newburg and Evans, refused to impose an interdistrict remedy on truly autonomous local school districts. Taylor v. Ouachita Parish School Board, 648 F.2d 959, 966 (5th Cir.1981), also found autonomous school districts and an intradistrict violation as opposed to interdistrict violations. A showing of segregative effect alone was considered to be insufficient under Milliken without demonstration of interdistrict violation and interdistrict effect.
Goldsboro City Board of Education v. Wayne County Board of Education, 745 F.2d 324, presents many similarities to the case before us. The argument was made, similar to that advanced by the Jenkins class, that the district court erred in its legal ruling that the county board owed no duty to the city board to decrease the proportion of blacks in the city schools. Both the city and county school districts were unitary. The court in Goldsboro stated:
An independent school district which has not caused segregation in a neighboring independent district has no duty to rectify a racial imbalance in the other district. * * * Both the City and County were found to have unitary school systems. * * * Swann implies that once a school system is unitary it has no duty to go to extraordinary measures to compensate for demographic changes it did not cause or encourage.
Id. at 328–29 (citations omitted) (footnote omitted). Goldsboro rejected the argument that it violated the Constitution by maintaining separate county and city school districts which, while racially neutral when created, had in the face of demographic changes made the population of the city schools more black.27
The Atlanta case also involves facts similar to those before us. The decision of a three-judge court in Armour v. Nix, 16–708 (N.D.Ga.1979), aff’d, 446 U.S. 930, 100 S.Ct. 2146, 64 L.Ed.2d 784 (1980), denied an interdistrict remedy. Armour discussed particularly past conditions and practices and stressed the need for a current interdistrict effect. The holding in Armour was best summarized in Lee v. Lee County Board of Education, 639 F.2d 1243, as follows:
Armour involved the City of Atlanta school district and a number of suburban county districts in the metropolitan Atlanta area. The demographic pattern was a familiar one. The City of Atlanta, and its school system, has become smaller and predominantly black, as the surrounding suburban communities have expanded rapidly and become predominantly *680 white. Given these residential patterns, no intradistrict desegregation plan promised any degree of meaningful racial integration of the public schools within the city district. In Armour, the court concluded that interdistrict relief would, nevertheless, be inappropriate because the current pattern of pervasive residential segregation, which the court found to be the proximate cause of the racial disparities in the population of the various districts, was not the direct result of any official action on the part of the school authorities or any other governmental agent.
Id. at 1259 (footnote omitted).

It is interesting to observe that the central thrust of the jurisdictional statement filed with the Supreme Court by appellant in Armour is based on acts of state actors causing housing segregation in the greater Atlanta area, which, it was argued should require an interdistrict remedy. The Supreme Court’s summary affirmance of Armour, therefore, provides precedential guidance for us. Tully v. Griffin, 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976); Hicks v. Miranda, 422 U.S. 332, 343–45, 95 S.Ct. 2281, 2289–90, 45 L.Ed.2d 223 (1975).
VIII.
Yet another reason gives strong support to the district court’s denial of interdistrict relief. The district court, as we have observed on several occasions, made strong findings that the SSDs had become unitary and had eliminated all vestiges of the dual school system at least by the early 1960’s.28 This makes appropriate, as the district court correctly recognized, the Court’s discussion in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267:
At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The systems would then be “unitary” in the sense required by our decisions in Green [v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) ] and Alexander [v. Holmes County Bd. of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969) ].
It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make yearby-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.
Id. at 31–32, 91 S.Ct. at 1283–84. The district court found that in the 1954–55 school year 18.9% of KCMSD’s students were black and that the district was majority white in enrollment until 1970. Jenkins v. Missouri, 593 F.Supp. at 1492. The exhibit upon which these findings were based further demonstrates that the district became 30% black in the 1961–62 school year, 40% black in the 1965–66 school year, and 60% black in the 1975–76 school year. The significance of these findings is that the increase in black population in KCMSD accelerated after the SSDs eliminated the vestiges of the dual system and began operating unitary school systems. The situation is similar to that in Goldsboro, 745 F.2d at 328–29.
*681 In Riddick, 784 F.2d 521, the court stated:
But once the goal of a unitary school system is achieved, the district court’s role ends.
We have only recently examined both Pasadena [City Bd. of Ed. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976) ] and Swann and concluded that a district court’s power to effect additional remedial orders is limited. “Once a school system has achieved unitary status, a court may not order further relief to counter-act resegregation that does not result from the school system’s intentionally discriminatory acts.” Vaughns, [v. Bd. of Ed. of Prince George’s Cty., 758 F.2d 983 (4th Cir.1985) ], supra, at 988. Other courts have reached the same conclusion. Davis, supra, 721 F.2d at 1435 (“Changes in neighborhood ethnicity taking place after school officials have transformed their system into a unitary one need not be remedied, of course, for school officials are under no duty to adjust for the purely private acts of those who chose to vote with their feet.”); Ross v. Houston Independent School Dist., 699 F.2d 218, 225 (5th Cir.1983).
Id. at 535–37.
Thus, the findings of the district court that the SSDs had become unitary, and that only later did the KCMSD’s black

population grow, together with the explanation in Swann, compel the conclusion that there be no further intervention by federal courts with the SSDs.29
IX.
The district court dismissed the claims that HUD, in administering housing policies and programs, had violated the Fifth Amendment of the United States Constitution, Title VI of the Civil Rights Act of 1964, 41 U.S.C. § 2000d, et seq., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601, et seq., and various housing laws and regulations.
We have discussed briefly, in the housing context, the Jenkins class’ claims against HUD. It claims that HUD violated its Title VI and Title VIII obligation by continuing to fund LCRA and HAKC after it knew that that agencies employed racially discriminatory housing practices, and by continuing to administer its section 8 housing program in a manner which is segregative in fact. Section 8 is a housing assistance payment program in which HUD issues certificates to low income renters who then present these certificates to landlords for rental payments. The Jenkins class maintains that HUD failed to direct the certificate recipients to integrative locations and, as a result, three-fourths of certificate holders rent in predominantly black housing units within the KCMSD. It further contends that HUD administered its section 235 singlefamily mortgage assistance program in a manner which funneled blacks into transitional areas of KCMSD and whites into the SSDs. Ultimately, the Jenkins class asserts, HUD allowed foreclosed section 235 housing in these transitional areas to deteriorate, thus contributing to white flight into the suburbs. They finally charge that although HUD abandoned its 1960s “social homogeneity” policy, it took no steps to encourage families benefiting from its housing programs to make integrative choices.
The district court addressed these contentions in denying the claims against HUD. The Jenkins class simply reasserts these claims on appeal. They do not assert that the district court’s underlying factual findings are clearly erroneous. With respect to HUD’s relationship with HAKC and LCRA, the court found, as we discussed above, that HUD investigated the violations and entered a cooperative agreement with those agencies and the City of Kansas City to correct the violations. The court found that HUD acted in a reasonable and responsive manner, that its conduct *682 was not arbitrary and capricious, and concluded that there was no violation of plaintiffs’ fifth amendment rights. Jenkins v. Missouri, 593 F.Supp. at 1498–99. Regarding section 8 certificate-holders, the court found no evidence that HUD attempted to direct these individuals into particular housing areas. With respect to the other siting issues, the district court found that HUD followed a balanced housing policy and, by assisting housing projects in the suburban area, attempted to ensure that housing located in inner-city areas was balanced. Id. at 1499. Further, it is again relevant that the section 235 program, authorized by the National Housing Act in 1968, began essentially after the massive shift in the racial population of southeast Kansas City had occurred. Record at 12048–49. Most of these schools had by then become predominantly black. The rapid racial turnover was attributed by plaintiffs’ witnesses to a variety of non-HUD related factors and was considered by one of plaintiffs’ expert witnesses to be inevitable. Record at 12034, 12061. Plaintiffs’ expert, Dr. Gary Orfield, testified that by 1954 the KCMSD schools, like those of most central cities in the country, were on course to become predominantly black, regardless of the desegregation actions taken at that point. Record at 14891–93.
[12] We conclude that plaintiffs’ arguments do not show that the district court erred as a matter of law in its judgment for HUD. We affirm the district court’s dismissal of the claims against HUD.
X.
[13] Finally, the KCMSD challenges the district court’s ruling that for lack of standing KCMSD must be dismissed as a party plaintiff and realigned as a defendant. KCMSD argued that it sustained economic injury through the action of the other defendants and therefore had standing to seek recovery against them. The district court carefully considered this and other arguments urged by KCMSD to proceed as a party plaintiff. The court recognized a potential conflict between the interests of students seeking to demonstrate the existence of segregative conditions in the area, and those of the KCMSD, which would resist the introduction of incriminating evidence concerning its own past or present actions. School District of Kansas City, Mo. v. Missouri, 460 F.Supp. at 441. The findings of KCMSD liability in the Order of September 17, 1984, Jenkins v.

Missouri, 593 F.Supp. at 1492–95, 1504, 1506, and the Order of June 14, 1985, confirm the concerns of the district court in October 1978 that a conflict of interest existed. The district court therefore did not err in dismissing KCMSD as a party plaintiff and realigning it as a defendant.
XI.
We now consider the intradistrict remedy ordered by the district court. No one challenges the substantial portion in which the costs are divided evenly between the State and the KCMSD. These include a program to achieve the AAA rating which would include library improvement and teaching load and curriculum improvements and addition of counselors. The implementation of a summer school program and full-day kindergarten, before- and after-school tutoring, and an early childhood development program are the other remedial steps ordered by the district court. These programs impose a cost over a three-year period on both the State and KCMSD of $10,140,472 each.
The State, however, challenges an improved student achievement program which essentially involves grants to each of the schools in KCMSD for a three-year period, the voluntary interdistrict transfer plan, and the reduction of class size proposal, all of which involve costs to be imposed upon the State alone. We will consider each of these items in turn, as well as the capital improvements program which imposed a cost on the school district of $10,000,000 over a three-year period, and $27,000,000 on the State over the same period.
We have approved remedial and compensatory programs in school desegregation *683 cases. See Liddell v. Missouri, 731 F. 2d 1294. There we stated, in a portion of the opinion joined by eight judges of this court:
[T]o remedy the effects of a dual system which operated for decades with the sanction of law, remedial efforts must also concentrate on systemic educational improvements.
A secondary remedial objective of the quality education improvements is to enhance the appeal of the city school system, thereby promoting the chances of a stable and successful voluntary desegregation plan. The exodus of white parents and students out of fear of integration, or “white flight,” is no excuse for school officials to avoid desegregating.
Id. at 1313 (emphasis in original) (citations omitted).
The district court properly recognized this principle when it stated in its Memorandum Opinion of June 14, 1985:
Measures requiring educational improvements have been incorporated into many desegregation remedies. * * * 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....” * * * 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 Nation at Risk at p. 7.
Memorandum Opinion of June 14, 1985 at 3–4 (citations omitted).
Recognizing these principles, a number of the programs designed to improve student achievement are not the subject of attack in this appeal before us.
A.
[14] The State argues that the voluntary interdistrict transfer plan imposes an interdistrict remedy for an intradistrict violation. The State concedes that this argument was rejected in Liddell, 731 F.2d 1294. This court there held, relying on its earlier decisions in the Liddell litigation, that a voluntary interdistrict program was a “valid part of the attempt to fashion a workable

remedy within the city” and would be entirely enforceable against the State. Id. at 1303.30
Our holding in Liddell was the basis for the following findings of the district court:
To accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task. As this Court stated in its January 25, 1985 order, “because of restrictions on this Court’s remedial powers in restructuring the operations of local and state government entities,” any mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond the nature and extent of the constitutional violation this Court found existed. * * * In addition, voluntary interdistrict transfers may serve to provide additional opportunities for desegregated schools as well as desegregative educational experiences for KCMSD students.
Order of June 14, 1985 at 31 (citations omitted).
*684 [15] The district court specifically found that the State had created the dual school system in Kansas City, that vestiges still lingered, and the obligations of KCMSD and the State to eliminate them have not been met. Jenkins v. Missouri, 593 F.Supp. at 1503–04. This finding of a constitutional violation, even though intradistrict in nature, is sufficient under the principles of Liddell to place upon the State the obligation to fund the voluntary interdistrict transfer program, under procedures enunciated in Liddell.
[16] We believe, however, that the State properly raises a valid concern with respect to the requirement that the State pay KCMSD the full student foundation allotment for each student who transfers from KCMSD to a SSD. KCMSD, after all, has also been found to have violated the Constitution. We believe that the situation is not unlike that in St. Louis where both the State and the school district were constitutional violators in an intradistrict violation. There we approved payment by the State on one of two formulas, either one-half of the State aid the district would have received had the student not transferred, or, if a district sends more students than it receives, State aid based on the district’s enrollment for the second prior year. Liddell, 731 F.2d at 1302. We also have concern that the court has given to the State alone full authority to monitor the voluntary interdistrict program. We believe that the use of a citizens committee in the St. Louis area with authority to monitor the program and assist in recruitment has been most effective. We direct that the district court modify its order on the voluntary interdistrict program so that it is consistent with that approved in Liddell.
B.
[17] The State argues that the district court improperly ordered it to fund an increase in the number of teachers above and beyond that necessary to meet AAA standards.31 The district court found that “achieving reduced class size is an essential part of any plan to remedy the vestiges of segregation in the KCMSD.” Memorandum Opinion of June 14, 1985 at 13.32 The district court analyzed the school system in detail ordering an increased number of teachers so as to reach the achieved class size goals. It placed the entire burden of this cost on the State and required that any responsibility beyond the minimal goals would be borne by KCMSD. The order contains no findings specifically directed to the issue of the liability of the State for this cost as opposed to that of KCMSD. We believe this portion of the order is infirm in two respects. First, it goes beyond the scope of our order in Liddell, which approved the requirements that would bring the schools within the AAA standing, but only as applied to the non-integrated schools. It also runs counter to the Liddell provision for funding equally divided between the State and the school district. 731 F.2d at 1318. As we have observed, both KCMSD and the State are constitutional violators. We see no reason for this cost being placed solely on the State. We direct the district court to modify that portion of its order dealing with reducing elementary and secondary school class size so as to divide the cost equally between the KCMSD and the State.
C.
The State also objects to that part of the court’s order providing for an effective school program, with the goal of improving student achievement, to be funded entirely by the State. This program provides specific grants for each school, in an amount higher for those with 90% or more black *685 enrollment. Over three years, it totals $17,000,000.

[18] The district court made detailed findings with respect to the first year’s expenditures and the components to be considered that year, and ruled that later years would be determined by a school advisory committee at each school making recommendations to the School Board. Memorandum Opinion of June 14, 1985 at 22. The goals of the program were to be directed toward improvement of elementary reading and improving the pass rate on the BEST on the secondary level. We have no difficulty concluding that the findings of the district court support the creation of this fund as its purpose is to provide programs that would enhance education. Nevertheless, we see no findings in the district court order that in any way substantiates placing the entire burden of this program on the State. We believe that the cost should be shared equally between the State and KCMSD and direct that the district court modify its order in this respect.
D.
The State argues that it should not be required to furnish $27,000,000 toward a $37,000,000 capital improvement program.
The district court found that the average age of the sixty-eight school buildings utilized by KCMSD is fifty-eight years and that improvement of school facilities is an important factor in the overall success of the desegregation plan. The district court said:
Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan.
Memorandum Opinion of June 14, 1985 at 34.
[19] These findings of the district court are sufficient to support its conclusion that capital improvements are necessary for successful desegregation. The State raises a troublesome argument based upon the finding of the district court that the buildings in the school district were in need of repair because of deferred maintenance and the failure to maintain the buildings. It argues that this was not the result of an unlawful action by the State. Nevertheless, we believe that the district court findings establish the propriety of this portion of the remedy and because the State is a constitutional violator, it has the obligation to support its proportionate share of this aspect of the remedy. Once again, however, we believe that the equal division between the State and KCMSD, both constitutional violators, is more equitable, and is consistent with our earlier opinion. See Liddell 731 F.2d at 1318–19.
Further findings support our view. The district court found that the deferred maintenance was a result of KCMSD’s lack of financial resources as evidenced by its inability to pass a capital improvements bond issue, although several attempts had been made since 1965. Memorandum Opinion of June 14, 1985 at 33. This is not unlike the situation in St. Louis where only one bond issue was passed in the last twenty-four years and thirteen were rejected. We are troubled with the district court’s reasoning in which it takes into consideration the expenditure by KCMSD of $15,000,000 to $18,000,000 for implementation of an earlier desegregation plan for which it was not reimbursed and for its budgeting in the 1986 fiscal year of approximately $17,000,000 for desegregation programs not covered in the plan. The State argues that to apply such payments to justify additional contribution by the State is similar to the equitable restitution for payments unlawfully withheld in the past, which were condemned as contrary to the Eleventh Amendment by the Supreme Court in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In view of our conclusion that these costs should be shared equally by the State and KCMSD *686 prospectively, we need not give further consideration to this troublesome issue.
E.
The State makes a final argument that the total cost of the funding placed approximately 80% on the State and only 20% on KCMSD. Our discussion of the specific items above and our conclusion that these costs should be shared equally by KCMSD and the State obviate our further consideration of these arguments. We have already pointed to the role of both as

constitutional violators and we need not catalog further the acts of the State or of KCMSD that causes liability to be placed upon each entity. Equal division of costs between the local school authorities and the State was approved in Milliken v. Bradley, 433 U.S. 267, 277, 97 S.Ct. 2749, 2755, 53 L.Ed.2d 745 (1977); Penick v. Columbus Board of Education, 519 F.Supp. 925, 942 (S.D.Ohio), aff’d, 663 F.2d 24 (6th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982); and Reed v. Rhodes, 500 F.Supp. 404, 424–26 (N.D.Ohio 1980), aff’d, 662 F.2d 1219 (6th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982).
We observe also that the record before the district court demonstrates that KCMSD has a higher property valuation than those in the SSDs33 and that KCMSD has imposed upon itself a below average rate of tax levy. KCMSD had a levy of $3.43 per $100 while the other districts in the Kansas City metropolitan area had an average levy of $4.28. This real estate tax falls upon a property base, a great portion of which is highly developed commercial real estate, as opposed to single family homes occupied by students in KCMSD.
We are aware of the complexities of the State’s funding of Missouri schools. While the district court made no findings on this subject, a memorandum filed by the State discusses the procedure established in Chapter 163, R.S.Mo, in great detail. The wealth of the school district plays a considerable role in determining the working of the State formula. As the formula deals entirely with distribution of funds, we believe that, should the district court determine it to be desirable, further consideration could be given to the working of this formula, particularly in reference to desegregation plans in the case now before us, and that in St. Louis, which we treated in Liddell, to determine whether there is any discriminatory motive or action in application of the formula and distribution of funds to school districts.
While our decision places greater financial obligation on KCMSD, it is our intention that the remedy ordered by the court be fully funded. We discussed in detail methods available to the district court to achieve this goal in Liddell, 731 F.2d at 1319– 23.
CONCLUSION
One further comment is in order. The record demonstrates in a number of areas that insofar as “white flight” may have been a factor in the Kansas City area, it cannot be considered without reference to the schools in the neighboring State of Kansas. This aspect of the case was not developed in detail nor did the court find it necessary to make findings on this issue. Nevertheless, it is a fact that might at some appropriate time in the future need to be given consideration in evaluating the segregation that may exist in the greater Kansas City area. Certainly, it would be appropriate and desirable, although we admit complex, to give careful consideration to inclusion of the Kansas schools in any voluntary interdistrict plan.
We affirm the judgment of the district court in favor of the SSDs and affirm the judgment of the district court and its intradistrict remedy imposed upon the State and the KCMSD with the exceptions we have discussed above that equalize the cost between the State and KCMSD.
*687 ROSS, Circuit Judge, concurring.
I concur in Judge Gibson’s opinion but write separately to emphasize to the parties in this case the importance of the admonition in footnote 30.
At the time of argument it was my understanding that a voluntary interdistrict program, patterned along the lines of the St. Louis program was a real possibility. It would now appear that some of the districts are not moving forward with this plan.
In my opinion the failure to organize and implement this program would be a very significant factor in determining discriminatory intent in the future litigation which is certain to result from the further processing of this case. The St. Louis program would be a useful model for the actions to be taken by all the Missouri districts which are parties to this action.

ARNOLD, Circuit Judge, concurring in part and dissenting in part.
While I concur in much of what the Court has said today, I must respectfully dissent from those portions of the lead opinion concerning suburban school district (SSD) participation in a remedy for the interdistrict effects of the State of Missouri’s housing violations. In all other respects, I concur in the judgment.
I would hold that the District Court erred in concluding that the SSDs cannot be required to participate in an interdistrict remedy for interdistrict school segregation caused by the State’s constitutional violations in the area of housing. The case should be remanded to the District Court for determination of the current interdistrict effects, if any, of the State’s housing violations. Any SSDs implicated by this analysis should be obliged to participate in an appropriately tailored interdistrict remedy.
I.
The District Court was of the view that no SSD could be made to take part in an interdistrict remedy unless there had been “a racially discriminatory act by [the SSD] that substantially caused segregation in another district.” Opinion of June 5 at 6, citing Milliken v. Bradley, 418 U.S. 717, 745, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974). The District Court concluded that because the housing discrimination at issue here was perpetrated by the State and other governmental entities, rather than by the SSDs, the SSDs cannot be allotted a mandatory role in an interdistrict remedy for any resulting school segregation. Opinion of June 5 at 42.
This position involves a misconstruction of Milliken. In a passage which expresses the core of Milliken, Chief Justice Burger wrote:
The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation. Swann [v. Charlotte-Mecklenburg Board of Education], 402 U.S. [1], at 16 [91 S.Ct. 1267, at 1276, 28 L.Ed.2d 554] (1971). Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation.
418 U.S. at 744–45, 94 S.Ct. at 3127 (emphasis added). Numerous other portions of Milliken further evidence the Court’s view that an interdistrict remedy involving a school district may be based on discriminatory acts of the state or other school districts with interdistrict segregative effects on the school district in question. See, e.g., id. at 745, 94 S.Ct. at 3127 (“With no showing of significant violation by the ... outlying school districts and no evidence of any interdistrict violation or effect” (emphasis added), an interdistrict remedy was improper); *688 id. at 748, 94 S.Ct. at 3129 (interdistrict relief unjustified because “... there has been no showing that either the State or any of the ... outlying districts engaged in activity that had a cross-district effect.” (emphasis added)); id. at 750–751, 94 S.Ct. at 3130 (discussing state activities as possible bases for interdistrict relief).
As support for the District Court’s decision regarding housing, the lead opinion cites the discussion of Milliken in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976).1 Yet, Hills states that the Court in Milliken rejected an interdistrict remedy because, while the trial court had found that “constitutional violations committed by the Detroit School Board and State officials had contributed to racial segregation in the Detroit schools, ... there had been neither proof of unconstitutional actions on the part of neighboring school districts nor a demonstration that the Detroit violations had produced significant segregative effects in those districts.” Id. 418 U.S. at 792, 94 S.Ct. 3150 (emphasis added). Further, in the portion of Hills quoted by the Court, ante at 671, the Supreme Court states: “In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any significant segregative effects in the suburbs.” 425 U.S. at 294, 96 S.Ct. at 1544 (emphasis added).2

Thus, it is not necessary that each school district subjected to an interdistrict remedy have itself committed a constitutional violation.3 Instead, Milliken establishes that an interdistrict remedy is justified wherever discriminatory actions of either the state, or local school districts, or both, have had significant interdistrict segregative effects. The SSDs
may not maintain that their districts should be excluded from any interdistrict remedy if they are found innocent of committing any constitutional violations because they should not be held responsible for the acts of the state legislators or other state subdivisions such as a local housing authority or a zoning board. The commands of the Fourteenth Amendment are directed at the state and cannot be avoided by a fragmentation of responsibility among various agents. *689 Cooper v. Aaron, 358 U.S. 1, 15–17, [78 S.Ct. 1401, 1408–09, 3 L.Ed.2d 5] (1958). United States v. Board of School Commissioners, 573 F.2d 400, 410 (7th Cir.), cert. denied, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978) (emphasis added).4 Perhaps the paradigm case in which a state’s constitutional violation merits interdistrict relief even absent participation by the local school district in the violation is where the state draws boundary lines on the basis of race. See, e.g., Morrilton School District No. 32 v. United States, 606 F.2d 222, 228 & n. 5 (8th Cir.1979) (en banc); Hoots v. Commonwealth of Pennsylvania, 672 F.2d 1107, 1119–21 (3d Cir.1982). But a state’s actions also merit an interdistrict remedy where it or its subdivisions cause interdistrict school segregation by employing discriminatory housing laws, policies, or practices. “[W]here the state has contributed to the separation of the races ... by purposeful, racially discriminatory use of state housing or zoning laws,” it may be appropriate to enter “a decree calling for transfer of pupils across district lines or for restructuring of district lines.” Milliken, 418 U.S. at 755, 94 S.Ct. at 3132 (Stewart, J., concurring) (emphasis added).
Thus, I take it as established that a school district can be made to participate in an interdistrict remedy even if it is not “personally” guilty of violating the Constitution, that such relief is appropriate where a State’s constitutional violations have contributed to interdistrict segregation, that “State” for this purpose includes any state or local agency, and that there is nothing unique or peculiar about housing agencies that would take them out of this rule. These conclusions are established, not only by Milliken itself and the other authorities just discussed, but also by our own unanimous en banc opinion in Morrilton School Dist. No. 32 v. United States, supra. There, the Morrilton and Plumerville school districts argued that “since the government made no showing that either Morrilton or Plumerville participated in the development of the East Side District as a segregated district, the District Court’s imposition of interdistrict relief was unwarranted.” 606 F.2d at 225. We squarely rejected that argument:
Morrilton and Plumerville argue that since there was no evidence implicating them in a direct way with the establishment of the East Side District, the court has no authority to order them to remedy the state’s wrong. This argument is clearly without merit since the effects of the unconstitutional state action are felt in both districts.
606 F.2d at 228 (footnote omitted). We then quoted the very passage, explicitly mentioning housing, from Board of School Commissioners, 573 F.2d at 410, a portion of which I have already quoted. In light of this en banc opinion, which of course authoritatively states the law of this Circuit until and unless overruled, I do not know how the District Court’s position—that the SSDs, because individually guiltless, cannot be made part of an interdistrict remedy—can stand.5
The Supreme Court has recognized on a number of occasions that there is a close reciprocal relationship between residential patterns and the racial composition of schools. See, e.g., Keyes v. School District No. 1, 413 U.S. 189, 202, 93 S.Ct. 2686, 2694, 37 L.Ed.2d 548 (1973); Swann, 402 U.S. at 20–21, 91 S.Ct. at 1278–79. The District Court here found that “there is an inextricable connection between *690 schools and housing.” 593 F.Supp. at 1491. Other federal courts have ordered school districts to participate in interdistrict remedies based in part upon housing discrimination practiced by other branches of state government. See Evans v. Buchanan, 393 F.Supp. 428, 434–38 (D.Del.) (three-judge court), aff’d, 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975); United States v. Board of School Commissioners, 456 F.Supp. 183, 188–92 (S.D.Ind.1978), aff’d in part and vacated in part on other grounds, 637 F.2d 1101, 1109–16 (7th Cir.), cert. denied, 449 U.S. 838, 101 S.Ct. 114, 66 L.Ed.2d 45 (1980). This Court should demonstrate no less concern for the segregative effects of state housing violations upon schools. When a state segregates children on a multi-district basis, whether it does so by drawing boundary lines or by steering or restricting the races to homes on different sides of pre-existing lines, the courts can provide interdistrict relief that includes all affected districts. See generally, Note, Housing Discrimination as a Basis for Interdistrict School Desegregation Remedies, 93 Yale L.J. 340 (1983).6

II.
Having concluded that an SSD may be required to participate in an interdistrict remedy for any interdistrict effects of housing discrimination upon the SSD, I turn to the question whether the State or its subdivisions have committed any housing violations that have current interdistrict segregative effects. In its September 17, 1984 opinion, 593 F.Supp. 1485, the District Court found or referred to a number of instances of housing discrimination by the State and its subdivisions that could have had such segregative effects. However, examination of that opinion and of the District Court’s June 5, 1984 opinion, in which it granted the SSDs’ Rule 41(b) motions, persuades me that the District Court never finally determined whether or what current interdistrict segregation is attributable to these housing violations. Having concluded that the SSDs could not be required to participate in an interdistrict remedy, assessing the interdistrict effects of housing discrimination by the State was a task the District Court no longer found necessary. Although the principal opinion asserts that the District Court made findings that foreclose the possibility of interdistrict effects, the findings that it cites are largely not on point and do not resolve the question. The lead opinion’s arguments on this point are in essence an exercise in appellate factfinding, an exercise that is unjustified since the record here is hardly so one-sided as to make any alternate findings clearly erroneous. This determination has not yet been made by the District Court, and must be before the book can be closed on the SSDs’ liability to interdistrict relief.
Perhaps the clearest, most direct example of the State of Missouri’s discrimination in the area of housing is the enforcement by its courts of racially restrictive covenants. See 593 F.Supp. at 1497. Even after state enforcement of such covenants was held unconstitutional in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), Missouri’s courts continued to entertain damage actions for breach between parties to the covenant, see Weiss v. Leaon, 359 Mo. 1054, 225 S.W.2d 127 (1949), a practice the Supreme Court held unconstitutional in Barrow v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953). Further, the District Court found that the State had in the past taken numerous other actions that were discriminatory against blacks, such as mandating separate schools for blacks and whites, Mo. Const. Art. IX, § 1(a) (1945) (rescinded 1976), §§ 163.130, 165.117 R.S.Mo. (repealed 1957); providing that school boards could *691 establish separate libraries, parks, and playgrounds for whites and blacks, § 165.327 R.S.Mo. (1959); and making it a crime for a person of one-eighth Negro blood to marry a white person, § 563.240 R.S. Mo. (1959). 593 F.Supp. at 1503. “These actions,” the District Court found, “had the effect of placing the state’s imprimatur on racial discrimination.” Id. Thus, the state “created an atmosphere in which the private white individuals could justify their bias and prejudice against blacks,” and “encouraged racial discrimination by private individuals in the real estate, banking, and insurance industries.” Id. The District Court concluded that “[t]his has and continues to have a significant effect on the dual housing market in the Kansas City area.” Id.7
A predicate for interdistrict relief may also be found in discriminatory housing practices of the LCRA and the HAKC, which are both instrumentalities of state government for whose discrimination the State of Missouri is accountable.8 Since it had determined that the SSDs could not be required to participate in an interdistrict remedy, and since it had found other bases for State intradistrict liability, the District Court considered these two entities only in connection with claims against HUD. Nonetheless, it appears from the Court’s findings, as well as from evidence not addressed by the Court because it was not directly relevant to HUD’s liability, that these agencies have committed housing violations that may have interdistrict segregative effects. Between 1953 and 1973, LCRA practiced discrimination in relocating persons displaced by urban renewal, steering blacks to southeastern Kansas City and relocating whites throughout the city. 593 F.Supp. at 1497–98. It appears that HAKC explicitly segregated its housing units until 1958, and that, despite the nominal adoption of a “freedom of choice” tenant-selection policy, HAKC may have continued segregative practices until 1964. Brief of Plaintiffs-Appellants Kalima Jenkins, et al., at 24; Brief of Defendant-Appellee Department of Housing and Urban Development at 11.9 Like Missouri’s enforcement of racially restrictive covenants and encouragement of private discrimination, the discriminatory practices of LCRA and HAKC could have significantly affected the dual housing market in the Kansas City area; if these practices have current interdistrict segregative effects, they merit interdistrict relief.10
*692 The District Court did find that the State’s own discrimination had contributed significantly to the dual housing market in “the Kansas City area,” 593 F.Supp. at 1503, and that “the dual housing market ..., which still exists to a large degree today ..., impacted blacks in the KCMSD and consequently caused the public schools to swell in black enrollment.” 593 F.Supp. at 1491. But the Court provided no more precise findings on the question of to what extent black students were concentrated in the portion of Kansas City covered by the KCMSD rather than more evenly dispersed through the portions of the Kansas City area served by the SSDs. Nor did the District Court assess the interdistrict segregative effects of housing discrimination by the LCRA or HAKC. Again, because the District Court concluded that the SSDs could not be made to help remedy the violations of independent housing actors, it had no need to determine whether the State’s housing violations have

current interdistrict segregative effects.
The plurality does not contend, by and large, that the District Court addressed this issue directly, but instead contends only that a number of findings that the Court made in other contexts somehow negate the possibility of significant interdistrict effects. First, it is argued at various points that the fact that the SSDs have operated unitary school systems since a few years after Brown precludes the possibility that housing violations have caused interdistrict segregation. E.g., ante at 669–70, 680– 681. However, it is difficult to fathom how the fact that a school district is internally unitary indicates that school children have not been segregated on an interdistrict basis; that an SSD’s schools are integrated with respect to children who live in the SSD has little bearing on whether, due to State housing discrimination, more whites and/or fewer blacks live in the SSD, and, concomitantly, fewer whites and/or more blacks live in KCMSD, than would otherwise be the case. If the SSDs had not been unitary, their own discrimination might have added to any State-fostered interdistrict segregation that exists; that they are unitary indicates only that they have not augmented interdistrict segregation caused by state housing violations. Unitary SSDs are no longer under an obligation to undo intradistrict segregation, Swann, 402 U.S. at 31–32, 91 S.Ct. at 1283–84, but they still may be required to participate in a remedy for the current segregative effects of interdistrict segregation.
Next, the plurality argues that the District Court “was plain” that the State’s pre–1948 enforcement of restrictive covenants has no current significant segregative effect. Ante at 675 & n. 22. While *693 I agree that the District Court made findings that dispose of the issue as to several of the SSDs, as to most of the SSDs the District Court did not make findings that are adequate to resolve the question whether present residential patterns would be significantly less segregated had restrictive covenants not been enforced. I agree with the lead opinion that there are no current segregative effects attributable to racially restrictive covenants in the Fort Osage School District, since there was no evidence of any such covenants located in that district, see Opinion of June 5 at 51; a similar conclusion is probably justified as to the Park Hill School District, see id. at 90. As to the nine remaining SSDs, however, I cannot agree that the District Court made findings sufficient to support a conclusion that the State’s enforcement of restrictive covenants has caused no current interdistrict segregation. First, in each portion of the District Court’s opinion discussing the restrictive covenants in a particular SSD, the District Court emphasizes the lack of SSD complicity in the placement or enforcement of the covenants within its boundaries. See, e.g., Opinion of June 5 at 48 (Center School District); id. at 73 (Lee’s Summit School District). Thus, the District Court’s misconstruction of Milliken may have tainted its consideration of the restrictive-covenant problem.
Even were this difficulty absent, the District Court’s remaining findings are still not adequate to support a finding of no current effect. As to the Center, Hickman Mills, and Raytown School Districts, the District Court noted that there was no evidence of any black family that failed to move into the districts because of the covenants, and that there is no present barrier to black movement into the districts. Id. at 48, 58–59, 94. With regard to the Lee’s Summit, Independence, and Liberty School Districts, the Court found that there were relatively few restrictive covenants in the districts, and that there was no evidence of any black family that failed to move into the district due to restrictive covenants. Id. at 66, 73, 77–78. Finally, the District Court observed that there were few racially restrictive covenants in the Grandview and North Kansas City School Districts, and that the effect of such covenants in these districts and the Blue Springs School District is limited or mooted by extensive post-Shelley residential development in those districts.
None of these findings resolves the question whether fewer blacks or more whites reside in the SSDs due to pre-Shelley and pre-Barrow enforcement of restrictive covenants. That there is no present barrier to black movement into an SSD hardly demonstrates that there was no barrier to such movement in the past that has current effects. That extensive post-Shelley residential development has occurred does not mean that earlier enforcement of racial covenants has not helped make a district identifiably white and inhospitable to blacks, or that it has no other current effect on residential patterns. Finally, it was not necessary for the plaintiffs to give evidence of particular black families that did not move into a district due to restrictive covenants in order to demonstrate the segregative effect of such covenants; to hold that they had no segregative effect on this basis simply blinks reality.
Further, the District Court did not determine the current effects of the State’s continued efforts to give legal force to these covenants from 1948 to 1953, and, more importantly, the imprimatur that the State placed upon private housing discrimination by ordaining various forms of racial discrimination, see supra at 690–91.11
*694 Finally, the plurality contends for two reasons that there can be no current interdistrict effects of housing violations by LCRA and HAKC. First, it cites the District Court’s finding that HUD followed a balanced housing policy, locating federally funded housing in both KCMSD and in the SSDs, and that HUD’s site-selection-and-approval practices had not affected the racial make-up of KCMSD schools. Ante at 676, citing 593 F.Supp. at 1499. Second, the lead opinion contends that the LCRA and HAKC practices of which the plaintiffs complain occurred in the 1970s, after KCMSD had experienced a

substantial increase in black population. Ante at 676. Both of these points involve a misapprehension of the plaintiffs’ claims: As to the first, the claim is not that unbalanced housing site selection and approval caused interdistrict segregation, but instead, that once the projects were built, HAKC explicitly segregated them, or later, steered whites to some projects and blacks to others. As to the second, the plaintiffs’ complaint is not primarily about HAKC and LCRA activities in the 1970s; rather, the District Court found that LCRA practiced discrimination from 1953 to 1973, and the plaintiffs contend that HAKC segregated its housing units from its inception in 1939 until as late as the mid–1960s. See supra at 691.
I agree with Judge Gibson that there are many factors other than housing discrimination that may have contributed substantially to the present concentration of blacks in the KCMSD. See ante at 674–75. Insofar as economic and demographic factors unrelated to official discrimination caused interdistrict residential segregation, the State and the SSDs may not be required to remedy the concomitant interdistrict school segregation. See Pasadena City Board of Education v. Spangler, 427 U.S. 424, 433–37, 96 S.Ct. 2697, 2703–05, 49 L.Ed.2d 599 (1976). I also agree that there are geographic limitations on the effects of housing discrimination, and that some of the effects of the State’s constitutional violations may have been felt in Kansas, rather than in the Missouri SSDs. See ante at 678. But the District Court has not yet made any findings on these points, as well as many other issues bearing on the question of interdistrict segregative effects, and as the lead opinion itself observes, the District Court is “ ‘uniquely situated’ ” to assess such matters. Ante at 671, quoting Little Rock, 778 F.2d at 410–11; see Morrilton, 606 F.2d at 230.
Therefore, the case should be remanded to the District Court to determine precisely what current interdistrict segregative effects may be attributed to housing discrimination by the State, LCRA, and HAKC. Upon remand, the District Court should first consider this question from the perspective of the SSDs’ Rule 41(b) motions. Any SSD that does not prevail on its motion should be permitted to present evidence to rebut a finding that it is implicated in the current interdistrict segregative effects of the housing violations. While the SSDs were given the opportunity to continue to participate in the proceedings after the District Court granted their Rule 41(b) motions, this was not “a meaningful opportunity for [the SSDs] to present evidence ... on the propriety of a multidistrict remedy.” Milliken, 418 U.S. at 721–22, 94 S.Ct. at 3116. After the District Court had held that the SSDs could not be made part of a remedy for the constitutional violations of other governmental entities, the SSDs no longer had any reason to take part in the suit. Therefore, were this Court to reverse the District Court on this issue, the SSDs would be entitled to present evidence.
If, at the end of these proceedings, the District Court found current segregative effects of the housing discrimination, it should then formulate an appropriately tailored interdistrict remedy, a remedy including each affected SSD. I caution, however, that, in accord with the equitable principles that govern such remedies, Milliken, 418 U.S. at 737–38, 94 S.Ct. at 3123–24, the role that may be assigned to each SSD may be limited by the fact that the SSD is not itself a constitutional violator. Thus, it would likely be inappropriate to burden the SSDs, rather than the State, with the financial *695 costs of the remedy. On the other hand, it seems clear that affected SSDs could be required to participate in an interdistrict transfer program designed to make the racial composition of the districts’ schools what it would have been absent official housing discrimination.
III.
I conclude that an SSD, even if its own actions are without blemish, may be required to participate in an interdistrict remedy for the housing discrimination of the State of Missouri or its subdivisions, so long as that discrimination has current interdistrict segregative effects involving the SSD. The case should, in my view, be remanded to the District Court to determine whether the established constitutional violations of the State and the LCRA, as well as the possible violations of the HAKC, have had any such effects. If the District Court finds that this discrimination has produced interdistrict segregation, it should fashion a remedy which accords with the principles discussed in this opinion.
Insofar as Judge Gibson’s opinion departs from this view, I dissent; in all other respects I concur. It is appropriate to add that, although the plurality opinion in this case of course announces the judgment, it does not make law for this Circuit except in those respects that command a majority vote of the judges sitting in this case. Four judges seem to agree that school districts not individually guilty of constitutional violations may not be compelled to participate in an interdistrict remedy. Four do not. That question is therefore open for determination in future cases in this Circuit.

LAY, Chief Judge, with whom HEANEY and McMILLIAN, Circuit Judges, join, dissenting.
A world of rhetoric cannot hide the world of fact.1 No one can deny that the school systems within the Kansas City metropolitan area were racially segregated before 1954, continued to be segregated after 1954, and that virtually all remain segregated today. The clearly erroneous rule, used by the lead opinion to give blanket approval to the district court’s conclusions, was never intended to be a rule of blind deference. This is particularly true when, as here, the record does not support the district court’s conclusions. This court’s affirmance of the district court, if allowed to stand, destines the Kansas City metropolitan area to racially segregated schools and a segregated community for decades to come. The lead opinion ignores Supreme Court precedent and brushes aside thirty years of this circuit’s rulings mandating school integration.2 The lead opinion also fails to acknowledge the district court’s misunderstanding of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), and the resulting erroneous legal premises on which the district court’s conclusions are based. The effect of this pervasive error makes the lead opinion’s analysis largely irrelevant to the record before us.
It now remains for the people of metropolitan Kansas City to choose whether their community and school systems shall continue to foster an environment of racial separation. Although many might respond that freedom of choice is essential to democratic government, this proposition should be accepted only so long as equality of opportunity is not denied to those who do not have the majority will on their side. Here, the tragedy of the legalized discrimination of the past century is that it has resulted in continued denial of acceptable equal opportunities to both the black and white children in the Kansas City area. The lead opinion closes its eyes both to Missouri’s long history of legally-mandated segregation of and discrimination against *696 blacks and to the uncontroverted evidence at trial that showed that for decades only the Kansas City metropolitan school district (KCMSD) provided blacks in the Kansas City metropolitan area with any educational opportunity at all. Moreover, for much of the period during which the suburban population dramatically increased, blacks were precluded by law or otherwise discouraged from residing anywhere other than the southeast corridor of the KCMSD.
Although a district court’s findings of fact may not be overturned unless clearly erroneous, Fed.R.Civ.P. 52(a), an appellate court nevertheless has the power to correct errors of law, including factual findings that are predicated on a misunderstanding of the governing rule of law. Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 1959–60, 80 L.Ed.2d 502 (1984) (quoted in In re Martin, 761 F.2d 472, 475 (8th Cir.1985)). Where, as here, the district court’s factfinding process was tainted with legal error from the start of trial by the court’s erroneous application of controlling legal principles, the district court’s findings are entitled to less than usual deference and should be reversed as clearly erroneous.3
The district court’s own conclusions and the clear weight of the uncontradicted evidence establish that constitutional violations, committed by the suburban school districts (SSDs) and HUD as well as the State of Missouri and the KCMSD, have caused significant continuing segregative effects in the SSDs. I would reverse the district court’s dismissal of the SSDs and HUD, holding that the plaintiffs have made out a prima facie case for interdistrict relief; I would remand for further evidentiary hearings with the SSDs and HUD reinstated as parties, with directions that new findings be made in light of this opinion and any further evidence produced. Thereafter, if the overall evidence so indicates, the district court should fashion an appropriate interdistrict remedy which incorporates the SSDs and takes into consideration the liability of HUD. The result of our divided vote is to endorse the district court’s fragmentation of the plaintiffs’ evidence and its refusal to draw obvious inferences from that evidence and to thereby uphold the district court’s denial of any form of interdistrict relief, the remedy most likely to eradicate the effects of years of legalized segregation in the Kansas City metropolitan area.
*697 Several fundamental errors compel reversal of the district court’s dismissal of the SSDs and HUD. I join Judge Arnold in his conclusion that the district court erroneously interpreted Milliken v. Bradley to require that each SSD have separately committed a constitutional violation with interdistrict effects before it could be included in an interdistrict remedy. Unlike Judge Arnold, I would hold that this error encompasses more than the housing violations claim but instead infects all of the district court’s findings. Rather, I would hold that the district court erred in failing to find that the SSDs committed constitutional violations with continuing significant interdistrict effects. I would hold too that the district court erred in drawing the conclusion that the constitutional violations by the state and the KCMSD have no, or at most de minimis, continuing segregative effects on the SSDs, a finding that was falsely premised on the district court’s misapplication of Milliken and on the district court’s failure to adhere to the record as developed at trial.

The District Court’s Misconstruction of Milliken v. Bradley
First, as discussed in Judge Arnold’s opinion, the district court misconstrued Milliken when it concluded that Milliken precludes interdistrict relief in a racially segregated metropolitan area unless each school district is found to be a constitutional violator and by that violation to have caused a significant segregative effect in another district. As Judge Arnold notes, in its memorandum opinion and order dismissing the SSDs the district court prefaced discussion of the plaintiffs’ legal theories regarding SSD liability with the incorrect statement that “[t]he linchpin of an interdistrict case, as declared by the Supreme Court, is whether there has been a racially discriminatory act by each defendant that substantially caused segregation in another district.”4 *698 Jenkins v. State of Mo., No. 77–0420–CV–W–4, slip op. at 5–6 (W.D.Mo. June 5, 1984) (emphasis added), citing Milliken, 418 U.S. at 745, 94 S.Ct. at 3127. The Supreme Court’s precise language in Milliken differs significantly from this gloss by the district court and actually reads:
[I]t must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Milliken, 418 U.S. at 744–45, 94 S.Ct. at 3127 (emphasis added). The district court thus erected an improper proof burden for the plaintiffs to overcome. Ironically, that the district court’s interpretation of Milliken has never been the legal standard by which grants of interdistrict relief have been measured was recognized even by the defendant State of Missouri, which correctly restated the Milliken standard in its brief on appeal to this court.5 In affirming the district court’s incorrect interpretation of Milliken, the lead opinion ignores the established precedent of this circuit. In Morrilton School Dist. No. 32 v. United States, 606 F.2d 222, 228 (8th Cir.1979) (en banc), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980), this court unanimously rejected a district court’s similarly limited interpretation of Milliken. Although the lead opinion states that Morrilton was intended to be limited to cases involving gerrymandered school district lines, so narrow a view of the acts that may constitute constitutional violations and trigger interdistrict relief is unsupportable. In Morrilton, this court found that school districts which were not themselves found to be constitutional violators nevertheless could be included in interdistrict relief where the effects of the unconstitutional actions of another (in Morrilton, the state) were felt in those school districts. Morrilton, 606 F.2d at 228. Similarly, the holding in United States v. Board of School Comm’rs., 573 F.2d 400, 410 (7th Cir.), cert. denied sub nom., 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978) (cited in Morrilton, 606 F.2d at 228–29) affirms the appropriateness of granting interdistrict relief even absent separate constitutional violations by each school district, but nowhere limits relief only to cases where the school district is found to be dependent on the state and its boundaries *699 established for segregative purposes. The lead opinion distorts what our earlier opinions have held in this regard.6
Again, in Liddell v. State of Mo., 731 F.2d 1294 (8th Cir.) (en banc) (Liddell VII ), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), we noted that in Liddell v. Board of Educ., 667 F.2d 643 (8th Cir.1981) (Liddell III )
we rejected the State’s argument that the district court was without authority to formulate an interdistrict plan without finding an interdistrict violation. We also noted that voluntary interdistrict pupil exchanges “must be viewed as a valid part of the attempt to fashion a workable remedy within the City.” [Liddell III, 667 F.2d] at 651. In an order appended to that opinion, we noted that the State had been “judicially determined to be a primary constitutional violator,” and we held that an interdistrict transfer plan would be salutary and would be entirely enforceable against the State. Id. at 659.
*700 Liddell VII, 731 F.2d at 1303. See Little Rock School Dist. v. Pulaski County Special School Dist. No 1, 778 F.2d 404 (8th Cir.1985), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 554 (1986). Though gerrymandering is certainly one type of constitutional violation, nothing in the lead opinion explains why it is the exclusive means by which a school district may suffer significant segregative effects for which interdistrict relief may be granted.7 See Evans v. Buchanan, 416 F.Supp. 328, 340 (D.Del.1976), aff’d, 555 F.2d 373 (3d Cir.1977) (Milliken’s “specification of the deliberate drawing of lines to achieve segregation was by way of example, not limitation”).
The lead opinion’s heavy reliance on Lee v. Lee County Bd. of Educ., 639 F.2d 1243 (5th Cir.1981), and Goldsboro City Bd. of Educ. v. Wayne County Bd. of Educ., 745 F.2d 324 (4th Cir.1984), is also misplaced. Goldsboro is distinguishable on several grounds. The Goldsboro city school district had been declared unitary by a federal district court in 1973. See id. at 325–26. Moreover, in Goldsboro, there was no showing of any housing violations or interdistrict transfers for segregated purposes, and on appeal the Fourth Circuit specifically found that the district court did not erroneously apply the law to that case’s facts. See id. at 328. Although Lee exhibits some similarities to the present case, as we noted in Little Rock the Lee case did not involve segregative interdistrict transfers, segregative boundary changes, or state-imposed residential

segregation, and the city district had been previously declared unitary. See Little Rock, 778 F.2d at 429.
Missouri’s History of De Jure Segregation
Significantly, the lead opinion omits any discussion of the State of Missouri’s long history of de jure segregation in which the KCMSD and most, if not all, of the SSDs participated. Much of this history, which was recounted in Liddell v. Board of Educ., 731 F.2d 1294 (8th Cir.1984) (Liddell VII ), is detailed in the district court’s opinion granting intradistrict relief. See Jenkins v. State of Mo., 593 F.Supp. 1485, 1490–95 (W.D.Mo.1984). This history bears repeating here, however, because the nature and gravity of the constitutional violations for which plaintiffs seek redress can properly be evaluated only in light of their historical context.
The State of Missouri’s implementation and enforcement of school segregation can be traced to well before the Civil War, when Missouri enacted laws prohibiting the creation of schools to teach blacks to read or write. Act of February 16, 1847, § 1, 1847 Mo.Laws 103. Beginning in 1865, the Missouri constitution expressly required separate schools for blacks and whites. Mo. Const. 1865, art. IX, § 2. This provision was retained in three successive constitutions. Mo. Const. 1875, art. XI, § 3, retained Mo. Const. 1919, art. XI, § 3, *701 revised and retained, Mo. Const. 1945, art. IX, §§ 1(a) and 3(c). See also Act of February 17, 1865, § 13, 1865 Mo.Laws 170. In 1889, the Missouri legislature made it a criminal offense for a black child to attend a white school. Act of June 11, 1889, § 7051(a), 1889 Mo.Laws 226. Although a 1954 Attorney General opinion declared the school segregation laws unenforceable, the statutes implementing the constitutionally mandated segregation were not repealed until 1957, see Act of July 6, 1957, § 1, 1957 Mo.Laws 452, and the constitutional provision was not rescinded until 1976. See Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.), cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980).
Prior to 1954, school districts in Missouri were not even in compliance with the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). From 1866 to 1929, state law exempted school districts from providing schools for black children if there were fewer than fifteen black children in the district and required them to discontinue black schools whenever average daily attendance fell below eight students. See 1865 Mo.Laws 177; 1869 Mo.Laws 86–87; 1870 Mo.Laws 149; 1887 Mo.Laws 264; 1893 Mo.Laws 247; 1909 Mo.Laws 790–91. In 1929, the Missouri legislature gave school districts the option to forgo schools for blacks altogether, no matter how many black school children resided in the district. 1929 Mo.Laws 382. Although school districts refusing to provide schools for blacks within their district were required to make interdistrict arrangements for and pay the tuition of black elementary school children beginning in 1929 and for black high school students beginning in 1931, the school districts were not required to fully reimburse transferred black students for transportation costs until 1945. See 1945 Mo.Laws 1700.
Rather than providing schools for blacks within their districts, school districts in the Kansas City metropolitan area, including the predecessor districts of the SSDs,8 took full advantage of state law provisions allowing them to arrange for the transfer of black school children out of their districts. Blue Springs, Fort Osage, Center, Raytown, Grandview, and Hickman Mills provided no schools for blacks.9 Lee’s Summit did not operate any black schools after 1910. North Kansas City intermittently operated a black elementary school until 1944. Independence, Liberty, and Park Hill each operated a black elementary school. Independence operated a black high school from approximately 1934 to 1945, and Liberty offered high school through the eleventh grade after 1938. However, the evidence is overwhelming that the quality of education available in these black schools was quite poor, especially in comparison to that available in the white schools in the SSDs and the black *702 schools in KCMSD. Moreover, despite state laws requiring districts not operating black schools to reimburse black students for tuition and at least part of their transportation costs, none of the SSDs did so until Lee’s Summit began reimbursement in 1931, followed by Independence in 1945, Park Hill and North Kansas City in the late 1940s, and Liberty in 1953. As the district court itself found, in 1954 KCMSD was the only school district in the Kansas City metropolitan area providing any real educational opportunities for blacks, operating fourteen black elementary schools, one black junior high vocational school and one black high school-junior college. See Jenkins, 593 F.Supp. at 1492.
Legalized segregation of and discrimination against blacks in Missouri was not limited to education. State law permitted local authorities to establish separate libraries, parks, and playgrounds for whites and blacks, Mo.Rev.Stat. § 165.377 (1959); made it a crime for a black to marry a white, Mo.Rev.Stat. § 563.240 (1959); and required segregation in colonies for the “feebleminded.” See, e.g., Jenkins, 593 F.Supp. at 1503. Of foremost importance to this case is the pervasive system of housing segregation in which all levels of government participated. Racially restrictive covenants, FHA appraisal practices, relocation policies of state and local housing agencies, and private discrimination operated to restrict blacks to certain

geographic sections of the Kansas City metropolitan area.
Housing Violations and HUD Liability
Judge Arnold’s opinion recounts the long history of Missouri’s involvement with housing discrimination in the Kansas City area, which in some instances continued through the 1970s. I join Judge Arnold in concluding that remand is required for further findings, for the purposes of fashioning interdistrict relief, on the extent of constitutional violations by the state and its various agencies in implementing segregative housing policies. For similar reasons, I would also reverse and remand for further consideration the district court’s dismissal of HUD. Though the lead opinion affirms the district court’s finding that HUD did not act arbitrarily or capriciously and that HUD’s acts were without discriminatory intent or effect, the record makes clear that HUD committed numerous constitutional violations. As Judge Arnold points out:
With regard to HUD, the District Court found that the agency had acted “reasonably” because it had taken action in the 1970s to end discriminatory practices by HAKC, whose programs HUD funded. 593 F.Supp. 1498–99. Yet there was extensive evidence, not addressed by the District Court, that HUD knew of shortcomings in HAKC’s tenant-assignment practices for years without taking action to end them.
Ante at 692 n. 10. Use of the arbitrary and capricious standard is inappropriate in the context of HUD’s alleged constitutional violations through the participation in and support of racially segregated housing practices. Where a government entity’s discriminatory practices causes housing and population shifts with metropolitan-wide effects, an interdistrict remedy has been found an appropriate form of relief. United States v. Board of School Comm’rs., 637 F.2d 1101, 1114 (7th Cir.), cert. denied, 449 U.S. 838, 101 S.Ct. 114, 66 L.Ed.2d 45 (1980). Moreover, considering whether the participation of each SSD in the dual school system had any significant interdistrict effect, the district court concluded that for each SSD the proof of any current effects was “weak, speculative and in any event de minimus [sic].” Jenkins, June 5 opinion at 12. Because the district court erroneously assumed that each SSD must be found to have committed a constitutional violation with current segregative effects before it could be included in interdistrict relief, the district court did not properly take into account the current segregative effects on the SSDs of the state’s or KCMSD’s actions to maintain a dual school system in the Kansas City metropolitan area.
*703 Milliken makes clear that an interdistrict remedy is justified if the constitutional violations of even “a single school district have been a substantial cause of interdistrict segregation.” Milliken, 418 U.S. at 745, 94 S.Ct. at 3127. The Supreme Court denied interdistrict relief in Milliken simply because the plaintiffs had only shown that the constitutional violations of the Detroit public school system had intra district, not interdistrict, effects. Id. at 747, 94 S.Ct. at 3128 (explaining that dissent’s position was that the existence of a dual school system in Detroit justified an interdistrict remedy); id. at 749, 94 S.Ct. at 3129 (“Where the schools of only one district have been affected, there is no constitutional power in the courts to decree relief balancing the racial composition of that district’s schools with those of surrounding districts.”); id. at 751, 94 S.Ct. at 3130 (“Thus, there was no evidence suggesting that the State’s activities * * * within Detroit affected the racial composition of the school population outside Detroit or, conversely, that the State’s * * * activities within the outlying districts affected the racial composition of the schools within Detroit.”). In contrast, the plaintiffs here presented evidence showing that KCMSD’s decision to operate some completely black schools and some completely white schools long after 1954 led to the rapid turnover of neighborhoods from black to white and caused many whites to move out of KCMSD to the SSDs. The district court repeatedly recognized that evidence at trial demonstrated the link between KCMSD’s delay in implementing effective integration policies during the 1960s and 1970s and the exodus of whites from KCMSD during this period in discussing KCMSD’s liability for segregation within KCMSD. See Jenkins, 593 F.Supp. at 1492–95. The district court did not consider KCMSD’s conduct as a basis for ordering interdistrict relief, however, because it misconstrued Milliken to require culpability with continuing segregative effects on the part of each SSD before that SSD could be included in an interdistrict remedy. Because under Milliken the conduct of even a single school district may be the basis for interdistrict relief if the continuing effects of that conduct are interdistrict, I would require the district court to consider on remand the extent to which KCMSD’s delay in implementing an effective integration policy has current interdistrict effects.
Ironically, though Judge Arnold concludes that the district court misapplied Milliken in assessing interdistrict effects from housing violations, he apparently upholds as not clearly erroneous the district court’s findings of no constitutional violations by the SSDs and its findings of only de minimis continuing segregative effects on the SSDs from the state’s and the KCMSD’s operation of a dual school system. To this extent, I part company with Judge Arnold.10 These findings are

inseparable from the district court’s misunderstanding of the Milliken standard.
Constitutional Violations by the SSDs
The district court failed to analyze the housing violations by the state agencies because it believed they were irrelevant to the SSDs’ participation in any interdistrict relief. Similarly, the district court failed to analyze the effect of the state’s and the KCMSD’s discriminatory practices because it decided their conduct was irrelevant to any remedial relief. The record is replete with evidence of constitutional violations by many of the SSDs and of the effect those violations had on all of the SSDs and on the KCMSD. As has already been stated here, these violations cannot be ignored by simply expressing deference to the district court’s findings under the clearly erroneous rule. Whether there exists a constitutional violation is more a question of law than of fact and is clearly subject to de novo appellate review. See, e.g., Bose *704 Corp., 466 U.S. at 501 n. 17, 104 S.Ct. at 1960 n. 17 (“A finding of fact in some cases is inseparable from the principles through which it was deduced.”).
Even under the district court’s erroneous interpretation of Milliken, the lead opinion errs in affirming the district court’s dismissal of the SSDs because it failed to find that the SSDs committed constitutional violations with cross-district effects. The uncontroverted evidence at trial showed that under the pre–1954 dual school system the SSDs exercised their discretion, granted them by the state, either to provide schools for black students which offered at best a substandard education or to decline to provide any schools at all. Instead, the SSDs transferred black students to the KCMSD. Understandably and undisputedly, KCMSD became the only school district in the Kansas City metropolitan area in which black school children could receive a complete education. Not only did the SSDs thus create segregated conditions in their individual districts by emptying their districts of all black school children, but they set historical precedent for interdistrict transfer of students on the basis of race in the Kansas City metropolitan area.
The district court’s conclusion that the SSDs were local automonous units11 and therefore exempt from liability for any segregative acts done by the state is the major premise on which the lead opinion relies in affirming the district court’s finding that the SSDs committed no acts with discriminatory intent that had significant segregative effects. However, to the extent the SSDs exhibited autonomy in deciding to provide inferior or no schools for blacks, under Milliken proof of autonomy here leads only to the conclusion that the SSDs did commit constitutional violations. Moreover, the lead opinion ignores the uncontradicted fact that after the SSDs participated in pre–1954 segregation on an interdistrict level, they took no affirmative steps on a similar interdistrict level to reverse the effects of those autonomously chosen educational practices. Even if Milliken required proof of constitutional violations by each individual SSD, which it does not, the district court erred in failing to draw the obvious inferences from the uncontroverted evidence to find such violations in the “autonomous” acts of the SSDs. The result today, as the evidence at trial showed, is that KCMSD’s student body is sixty-eight percent black whereas the student population of the SSDs is only five percent black.12
Continuing Significant Interdistrict Effects
My most fundamental objection to the majority’s position, however, is its wholesale affirmance of the district court’s finding that to the extent any constitutional violations were committed by any of the defendants, the continuing segregative effects on the SSDs were de minimis and that inclusion of the SSDs in an interdistrict remedy was therefore precluded.
In concluding that the pre–1954 dual school system in which the SSDs participated has no continuing interdistrict effects, the district court found that despite the fact that only KCMSD provided blacks in the Kansas City metropolitan area with *705 any real educational opportunities prior to 1954 as a direct result of the constitutional violations of the state, the KCMSD and the SSDs, those violations had but a de minimis effect on the housing choices of blacks prior to 1954. Such a finding is contrary to legal precedent, many of the district court’s own factual findings, and the plaintiffs’ unrebutted expert and lay witness testimony and is clearly erroneous.
In affirming as not clearly erroneous the district court’s findings of de minimis continuing segregative effects on the SSDs from the KCMSD’s actions, the lead opinion follows the district court in overlooking the weight of uncontradicted evidence in the record and the district court’s own findings that the KCMSD’s perpetuation of segregated schools within the KCMSD caused a mass concentration of blacks in an area where a substantial number of whites lived. This in turn resulted in displacement of whites, who moved to or transferred into the SSDs.

The evidence produced at trial demonstrated that by a variety of affirmative official acts, the KCMSD sought to preserve the all-white character of some of its schools at the expense of the schools in the southeast corridor of Kansas City. There, KCMSD followed a policy of “integration and stabilization.” As part of this piecemeal desegregation policy, KCMSD implemented attendance zones, intact busing, liberal transfers, neighborhood school policies, and faculty transfers which had segregative instead of integrative effects. One of the most significant of these was the creation of shifting and optional attendance zones. Evidence at trial indicated that the attendance zone choices were based on Troost, a north/south street that traditionally had divided white neighborhoods west of Troost from the neighborhoods to the east which also contained many whites but in which most of the blacks in Kansas City lived. Testimony at trial indicated that despite overcrowding in schools east of Troost and underuse of schools west of Troost, attendance zones did not traverse Troost until 1976. Moreover, testimony at trial established and the district court itself found that as the population of Kansas City changed in the years following Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), KCMSD “made frequent shifts in the attendance areas of its schools” with the result of removing white sections from the western-most portions of the racially transitional areas and attaching them to all-white zones further west, shifts which, coupled with a liberal transfer policy, “allowed attendance patterns to continue on a segregated basis.” Jenkins, 593 F.Supp. at 1494. The district court also found that “as the black population expanded from the central city in a southeast direction, neighborhoods and schools experienced a racial transition. As blacks moved, or were bused to the schools in the [southeast] area, whites moved out.” Id.13 (citations omitted).
As a result of these policies, blacks were bused to or moved to the southeast area of Kansas City and whites moved to the neighboring SSDs. As the black population of Kansas City expanded to the southeast, KCMSD chose to operate some completely segregated schools and some integrated ones. The result of KCMSD’s official school policies was to make the KCMSD “blacker” and the SSDs “whiter,” actions which have been found by courts before to be constitutional violations for which interdistrict relief is appropriate. Cf. Hoots v. Pennsylvania, 672 F.2d 1107, 1121 (3d Cir.), cert. denied, 459 U.S. 824, 103 S.Ct. 55, 75 L.Ed.2d 60 (1982) (quoting Penick v. Columbus Bd. of Educ., 429 F.Supp. 229, 266 (S.D.Ohio 1977), aff’d, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979)) (“Actions and omissions by public *706 officials which tend to make black schools blacker necessarily have the reciprocal effect of making white schools whiter.”) (citation omitted). See Evans v. Buchanan, 393 F.Supp. 428, 436 and n. 15 (D.Del.1975) (presence of proportionately more black children in a city school than in the neighborhood served by the school likely encouraged white families to move to nearby suburbs, where “black students were barely present” in the school systems).
It is evident that the segregative policies perpetuated by KCMSD caused a greater concentration of blacks and black schools in the southeast corridor, directly resulting in displacing whites into the SSDs.14 In this regard, the district court’s own findings are at least contradictory and at most support the grant of interdistrict relief based on continuing effects in the SSDs from the KCMSD’s policies. The district court recognized that the KCMSD had chosen to operate some completely segregated schools and some integrated ones in the district and that as of 1977, twenty-five one-race schools under the pre– 1954 dual system remained ninety percent or more of the same race. See Jenkins, 593 F.Supp. at 1492. Moreover, in a supplemental order, of which we take judicial notice, that enjoined for one year the property tax rollback provided under a Missouri statute, the district court summarized its findings in this case to date by stating:
The Court has found that segregated schools, a constitutional violation, has led to white flight from the KCMSD to suburban districts, large number of students leaving the schools of Kansas City and attending private schools and that it has caused a system wide reduction in student achievement in the schools of KCMSD. It has also found that by improving the quality of education in the KCMSD, it will enhance the appeal of the school system, thus giving it a chance to retain its present white enrollment and also encourage whites in private and suburban schools to enroll in its schools. As set forth in its order of June 14, 1985, the basic remedial principle 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, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). Jenkins v. State of Mo., No. 77–0420–CV–W–4, slip. op. at 1–2 (W.D.Mo. August 25, 1986). Not only does this language further support the view that the district court did recognize that the effects on the SSDs from the segregative policies of the KCMSD were more than de minimis, but it illustrates that the district court’s refusal to grant interdistrict relief was clearly erroneous and contradictory to its own findings from the record.15 That the availability of schools influences housing choices is a common sense proposition. After a fifty-year period during which the SSDs provided no schools or inadequate schools for blacks, it is hardly surprising that black families living in the SSDs and those moving to the Kansas City area from other states chose to move to the KCMSD, where adequate educational facilities were available. As the district court notes in its opinion on intradistrict liability, the nexus between availability of

schools and housing patterns has been recognized by the Supreme Court. See Jenkins, 593 F.Supp. at 1491 (quoting *707 Swann, 402 U.S. at 20–21, 91 S.Ct. at 1278–79). This nexus has also been recognized by this court in the context of interdistrict cases. See, e.g., Little Rock, 778 F.2d at 412 n. 5. The Little Rock case is particularly instructive in that, under facts very similar to this case, we upheld a district court finding that black families from other school districts were drawn to the Little Rock school district precisely because it was the only district that provided blacks in the area with substantial educational opportunities. Id. at 412. The district court’s finding in Little Rock that school availability influences housing on an interdistrict as well as an intradistrict basis, which we upheld, seriously undermines the credibility of the district court’s finding in this case “that the absence of black schools in any of the [SSDs] did not discourage black families outside (or from within) Missouri from moving to and living in those districts.” Jenkins, June 5 opinion at 18 (citations omitted).
The district court’s finding is further undermined by several statements in its September, 1984 opinion regarding intradistrict liability of the state and KCMSD. In rejecting the state’s argument that job availability rather than school availability was responsible for the segregated housing and school patterns within the KCMSD, the district court stated that “[o]ften jobs would pull migrants to the city and then availability of schools would influence, more specifically, what housing choice would be made within the city.” Jenkins, 593 F.Supp. at 1490. In finding that the current dual housing market affected blacks in the KCMSD, the court again referred to the “inextricable connection” between schools and housing. Jenkins, 593 F.Supp. at 1491. It is difficult to see how school availability would be an important factor in making housing choices within a single school district, but would not influence housing decisions within the metropolitan area in general.
In support of their argument that the constitutional violations here produced significant interdistrict effects, plaintiffs produced statistics showing that although the school population in the three-county area, excluding KCMSD, was between 7.19% and 8.7% black in 1881, the black school-aged population in the same area had steadily declined to between .39% and 1.5% by 1954. At the same time, the black population in KCMSD had risen from 8.8% in 1900 to 14.0% in 1954. Plaintiffs produced several expert witnesses on education and housing patterns who testified that the inability of blacks to provide their children with an education in the SSDs caused many black families to move to KCMSD, the only district providing any real educational opportunities for blacks in the Kansas City metropolitan area. The absence of schools for blacks in the SSDs, the experts testified, also influenced the housing choices of blacks moving into the Kansas City metropolitan area from other states, both because there would be less chain migration to the SSDs as the existing black population in the SSDs declined and because accessible education is an important factor for blacks, as for all people, in making housing choices. Plaintiffs also produced the testimony of many blacks who had lived in the SSDs prior to 1954 but had had to travel long distances or move to KCMSD itself to receive an education. Other evidence included pre–1954 school board reports and other documents stating that the absence of educational opportunities for blacks in rural areas caused by the dual school system was causing many black families to leave rural areas for large cities.16
Notwithstanding plaintiffs’ extensive evidence, the district court concluded that the absence of educational opportunity for blacks in the SSDs prior to 1954 had a de minimis effect on current housing patterns and school segregation in the Kansas City metropolitan area. The lead opinion merely reasserts the district court’s findings and concludes that they are not clearly erroneous. Close examination of the district court’s opinion, however, reveals that *708 its reasons for rejecting the plaintiffs’ evidence as de minimis ring hollow. For example, the district court found that the increase in the black population in KCMSD prior to 1954 was attributable to jobs and employment opportunities available in the KCMSD area, rather than to the availability of schools. Jenkins, June 5 opinion at 15–16 and 18. No one disputes that economic opportunity was a major factor in drawing blacks, especially from the South, to the Kansas City metropolitan area. The plaintiffs’ argument, however, was not that school availability to the exclusion of economic opportunity drew blacks to KCMSD. Rather, plaintiffs argued that once blacks were drawn to the Kansas City area for whatever factors, including economics, school availability caused many blacks to settle in KCMSD rather than in the SSDs. This argument remains unrefuted, and in fact is substantiated by the district court’s own findings regarding the nexus between school availability and housing patterns.17 See Jenkins, 593 F.Supp. at 1491.
The district court also failed to assess the importance of the relative depopulation of blacks from the SSDs prior to 1954 with respect to the present racial composition of the Kansas City area. In rejecting the plaintiffs’ evidence of depopulation, the district court noted that although the black population in the three-county area, excluding KCMSD, decreased by only approximately 837 from 1910 to 1960, the black population in KCMSD increased by more than 45,000 during this same period. Thus, the district court concluded, the impact of that movement on the black enumeration in KCMSD was insignificant. Jenkins, June 5 opinion at 15–16. The effect of the decline of the black population living in the SSDs prior to 1954, however, is not limited to those black families that left the SSDs for KCMSD because of the lack of schools. Instead, as the plaintiffs’ evidence demonstrated, the resulting lack of blacks in the SSDs in turn caused blacks moving to the Kansas City area from the South to live in the KCMSD, where there was a growing black population, rather than in the

overwhelmingly white and hostile SSDs.
Not only did the district court improperly discredit the plaintiffs’ evidence, it also omitted any reference to the evidence that most strongly supported plaintiffs’ claims. For example, the plaintiffs submitted several reports prepared by the superintendent of public schools in Missouri during the 1920s and 1930s stating that the absence of black schools in rural areas was causing black families to migrate to the large cities.18 Contemporaneous documents such as these, prepared by school officials at the time black depopulation of rural areas was occurring in Missouri, are highly probative of the link between school availability and housing patterns on an interdistrict basis. Although the district court recognized this link, see Jenkins, 593 F.Supp. at 1490 (“[u]ndeniably, some blacks moved to districts, including the KCMSD, that provided black schools”), it largely discounted the plain inferences to be drawn from it.
The district court rejected the plaintiffs’ statistical evidence regarding the number *709 of black students in the SSDs who transfered to KCMSD prior to 1954 as “de minimis.” It is true that the number of transfers actually shown to have occurred during this period, anywhere from 251 to 600, appears small. These examples, however, were presented only as representative of the effects of the dual school system on school attendance and housing patterns in the Kansas City area, not as an exhaustive enumeration. The plaintiffs’ inability to produce more accurate statistical evidence of interdistrict transfers is not surprising in light of the incentives to underreport black students and the conceded unavailability of interdistrict transfer records, for which the SSDs are at least partially responsible. The SSDs had an incentive to underreport the number of black school children in their districts because state law excused them from their duty to provide a school for blacks if the number of black school children in the district fell below a certain number. Black students from the SSDs had an incentive to be counted as residents of the KCMSD rather than as residents of the SSDs because they could thereby avoid paying tuition to attend KCMSD before the SSDs began to reimburse them for tuition in the 1930s and 1940s. It is difficult to imagine what level of statistical proof would satisfy the district court and the lead opinion. Evidently, they would be satisfied only if the plaintiffs had paraded before the district court every black student who had transfered from the SSDs to KCMSD or who had moved from the SSDs to KCMSD prior to 1954. Such a stringent level of proof has never been required. See, e.g., Board of School Comm’rs., 637 F.2d at 1113–14.
Even assuming the numbers relied upon by the district court are accurate and controlling, it requires little additional evidence to buttress the common sense proposition that blacks would be deterred from migrating to an overwhelmingly white school district where no black schools existed, where arbitrary policies or school transfers placed the primary burden of educational expenses on many black families, and where racial covenants prevented home purchases. To fail to acknowledge that blacks were deterred from living in the SSDs is to ignore the obvious. Cf. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 367, 97 S.Ct. 1843, 1870–71, 52 L.Ed.2d 396 (1977) (in reversing denial of Title VII relief, the Supreme Court stated that to fail to account for non-applicants being deterred from even applying for employment would mean that “[v]ictims of gross and pervasive discrimination could be denied relief precisely because the unlawful practices had been so successful”). Perhaps most disturbing, however, is the district court’s repeated reliance on the increasing black enrollment in the SSDs after 1954 as an indication that the prior constitutional violations of the SSDs have no current interdistrict segregative effects. The district court noted, for example, that black enrollment in Hickman Mills increased from twenty-nine black students in 1967 to 1,571 in 1983, and that black enrollment in Park Hill has increased by 110 students since 1976. Jenkins, June 5 opinion at 56, 88. That black enrollment in the SSDs has increased since the 1960s may indicate that barriers to black movement into the SSDs are declining over time. Far from indicating that there are no current significant segregative effects of the SSDs’ past conduct, however, this increase in black enrollment in the SSDs since Brown v. Board of Educ. is conclusive evidence that the lack of schools for blacks in the SSDs prior to 1954 was a deterrent to blacks settling there. In light of the compelling evidence presented by the plaintiffs that the absence of schools for blacks in the SSDs prior to 1954 had a significant effect on housing choices made by blacks during this time, the district court’s conclusion that the effects were de minimis is clearly not supported by the record.
Affirmative Duty of State of Missouri, KCMSD, and the SSDs
It is clear that the SSDs, as well as the State of Missouri and KCMSD, have all failed to fulfill their affirmative duty under Brown v. Board of Educ. to eliminate the *710 vestiges of their prior segregative policies and that significant interdistrict effects of these policies are still evident in the Kansas City metropolitan area. The district court, now affirmed by this court, held that because all of the SSDs had opened the doors of their all-white schools to blacks in 1960, the SSDs had discharged their duty under Brown. Courts have long recognized, however, that racially neutral policies are generally ineffective to counteract the continuing effects of past segregative practices, especially where such segregation has influenced housing

patterns. See, e.g., Swann, 402 U.S. at 20–21, 91 S.Ct. at 1278–79; Kemp v. Beasley, 389 F.2d 178, 190 (8th Cir.1968). The district court itself recognized the ineffectiveness of racially neutral policies after a long period of intentionally segregative policies in its opinion on intradistrict liability. See Jenkins, 593 F.Supp. at 1490–95. The reason such racially-neutral plans are ineffective is plain. A racially neutral policy, such as a neighborhood school policy, will simply not correct the effects of many years during which black schools were located in only certain parts of a school district, causing black families to settle in those areas. Similarly, to merely open to blacks the doors of schools in virtually all-white districts simply fails to eradicate the effects of many years when those districts provided blacks with no schools or at best inadequate schools, causing black families already living in those districts to leave and discouraging black families newly moving into the area from settling in those districts. It is precisely because of this continuing affirmative duty under Brown that pre–1954 evidence is relevant.
Conclusion
The effects of the SSDs’ pre–1954 constitutional violations and their continuing failure to fulfill their duty under Brown are still evident in the Kansas City metropolitan area today. Eighty-seven percent of the black students in the Kansas City metropolitan area are educated in KCMSD; eighty-nine percent of the white students attend school in one of the SSDs. Yet the district court concluded that the pre–1954 conduct of segregated schools and housing practiced by the SSDs did not significantly contribute to the current racial imbalance in the Kansas City metropolitan area. To support this conclusion, the district court noted that KCMSD was only 18.9 percent black in 1954–55. The fact that the major increase in the black population in KCMSD occurred after 1954, said the district court, is strong evidence that the current racial composition of the Kansas City area was caused by factors other than the pre–1954 dual school system. See, e.g., Jenkins, June 5 opinion at 41– 42. Undeniably, many factors have contributed to the enormously disparate racial composition of the student bodies of KCMSD and the SSDs. Housing policies of federal, state, and local agencies have contributed to the dual housing market that exists in the Kansas City metropolitan area, which in turn has contributed to the de facto dual school system that exists today. Ineffective integration policies of KCMSD during the 1960s and 1970s caused an exodus of whites from KCMSD to the SSDs.19 The evidence at trial showed that the continuing influx of blacks to the Kansas City metropolitan area from the South and the higher birthrate among blacks have also contributed to the higher percentage of blacks in KCMSD. To the extent that these factors have magnified the effects on the SSDs of the pre–1954 conduct of state, the KCMSD, and the SSDs and those effects have not been affirmatively addressed, all the defendants are at least partially to blame. Had the SSDs not contributed to the depopulation of blacks from those areas by failing to provide schools for blacks, the higher birthrate among blacks would have presumably also increased the percentage of blacks living in *711 the SSDS. Similarly, had the SSDs’ policies not contributed to the depopulation of blacks from those areas, more blacks moving into the Kansas City metropolitan area from the South would have settled in the SSDs rather than in KCMSD.
The lead opinion agrees with the state and the SSDs, who emphasize that the plaintiffs’ case rests entirely on racial disparities, that proof of disparate impact on the SSDs is not enough to hold the SSDs liable and provide the basis of interdistrict relief. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). I have no quarrel with that premise. But as Penick recognizes, in Swann intradistrict relief was premised on a presumption of continuing racial imbalance within a unitary district. See Penick, 443 U.S. at 479, 99 S.Ct. at 2978. Here the racial imbalance is clear evidence of continuing segregation following a pre–1954 de jure policy. It is not necessary to switch the burden of proof where there is overwhelming evidence of violations and effects throughout the system.
Moreover, the lead opinion is also incorrect in affirming the district court’s reliance on the mere passage of time as exculpating the SSDs. The lapse of decades, without any showing of affirmative steps taken to reverse the invidious effects of de jure segregation, reinforces the broad scope of the effects of the defendants’ constitutional violations here. Nor is the lead opinion correct in affirming the district court’s rejection of the overall thrust of plaintiff’s proof of interdistrict effects on the grounds that a series of de minimis violations cannot be aggregated to produce a finding of a constitutional violation. See, e.g., Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 413, 97 S.Ct. 2766, 2772, 53 L.Ed.2d 851 (1977). Here, neither the violations found proved by the district court nor the effects of those violations are insignificant. See, e.g., Jenkins, 593 F.Supp. at 1503 (finding that presence of dual schools had important segregative effects throughout the Kansas City metropolitan area). The premises on which the majority bases its affirmance of the district court’s conclusion of de minimis continuing segregative effects on the SSDs have no basis in law nor in the facts as otherwise found by the district court and as developed at trial.
Although the lead opinion suggests to the contrary, this case differs notably from Milliken and this circuit’s Little Rock case in that it does not present on appeal an issue of whether the only appropriate remedy is consolidation of the entire metropolitan

area’s school districts.20 The plaintiffs and the KCMSD seek alternative forms of interdistrict relief as well as consolidation as a means to achieve an integrated school system. And even if the requested relief includes consolidation, relief can be tailored by the district court itself or as directed by this court to fit the constitutional violations. As was true in the Little Rock case, the automony of the city and suburban school districts can be preserved concurrent with mandated interdistrict relief. As we stated in Liddell VII:
[R]elating the remedy to the violation pursuant to Milliken II [433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) ] does not require a finding that each educational program at issue has in the past been “infected with the discriminatory bias of a segregated school system.” * * * It is sufficient to determine that the remedial program is directed to cure the general condition offending the Constitution. Liddell VII, 731 F.2d at 1315–16 n. 18 (citation omitted). The relief sought here is narrowly tailored to the particular situation and responsive to the Supreme Court’s concern in Milliken that the “nature of the violation determine[s] the scope of the remedy.” Milliken, 418 U.S. at 738, 94 S.Ct. at 3124 (citation omitted). *712 The quarrel I have with the intradistrict relief mandated by the district court, as modified by the lead opinion, is that the intradistrict programs will do little to integrate the metropolitan school system. The lead opinion calls for improved facilities and quality education programs, requires the state to pay its share of the cost of those programs, and authorizes the district court to order a tax increase if that alternative is necessary to enable the school district to bear its share of the cost of the mandated programs. This remedy is fine as far as it goes; however, it falls far short of the relief that should be required under the facts of this case.21 It is hoped that at the very least the magnet school component and the voluntary interdistrict transfer plan, if implemented, will be of some help in integrating the district. In my view, however, these interdistrict programs should have been mandated already.
To summarize, I would hold that the district court erred in interpreting Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), to preclude interdistrict relief. Under Milliken, properly interpreted, the district court’s own factual findings with regard to the constitutional violations of the state and KCMSD, especially with regard to the significant link between housing patterns and school availability in the Kansas City metropolitan area, strongly suggest that the plaintiffs are entitled to an interdistrict remedy. Because the district court clearly erred in finding that the SSDs committed no constitutional violations with continuing significant interdistrict effects, the district court’s dismissal of the SSDs should be reversed and remanded for further proceedings. If on remand, after each of the SSDs have had an opportunity to present evidence, it remains unrebutted that the acts of the state, the KCMSD, or any of the SSDs have a continuing interdistrict effect, those SSDs which the district court determines to be within the violations’ effects should be ordered to participate in an interdistrict remedy, such as a mandatory interdistrict transfer program, narrowly tailored to remedy the constitutional violations proved here.
The case should be reversed and remanded for reconsideration in light of Milliken v. Bradley, and the SSDs and HUD should be joined to determine the extent of their liability.

All Citations 807 F.2d 657, 36 Ed. Law Rep. 569

Footnotes

*

Judge Bowman did not participate in consideration of this case and Judge Magill was not a member of the court

when it was argued and submitted.

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

The named student plaintiffs were replaced at various times during the litigation. In February 1985, the court

certiﬁed the class of present and future KCMSD students.

3

The named defendants included the State of Missouri, the Missouri State Board of Education and various

Missouri ofﬁcials, the State of Kansas, the Kansas State Board of Education and various Kansas ofﬁcials, several

Kansas school districts in the Kansas City metropolitan area, twelve Missouri school districts in the area, the

United States Departments of Transportation (DOT), Health, Education, and Welfare (HEW), and Housing and

Urban Development (HUD).

4

These rulings were certiﬁed under 28 U.S.C. § 1292(b) for interlocutory review. 460 F.Supp. at 445. An appeal,

when it was argued and submitted.

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

The named student plaintiffs were replaced at various times during the litigation. In February 1985, the court

certiﬁed the class of present and future KCMSD students.

3

The named defendants included the State of Missouri, the Missouri State Board of Education and various

Missouri ofﬁcials, the State of Kansas, the Kansas State Board of Education and various Kansas ofﬁcials, several

Kansas school districts in the Kansas City metropolitan area, twelve Missouri school districts in the area, the

United States Departments of Transportation (DOT), Health, Education, and Welfare (HEW), and Housing and

Urban Development (HUD).

4

These rulings were certiﬁed under 28 U.S.C. § 1292(b) for interlocutory review. 460 F.Supp. at 445. An appeal,

taken by the KCMSD and the North Kansas City School District, was denied by this court. KCMSD thereafter ﬁled

an appeal under 28 U.S.C. § 1291 which was dismissed. See School District of Kansas City, Missouri v. Missouri,

592 F.2d 493 (8th Cir.1979).

5

Before trial, the DOT and one of the SSDs, the Raymore-Peculiar School District, were dismissed voluntarily. See

Order of June 5, 1984 at 2.

6

The eleven districts dismissed were the Blue Springs, Center, Fort Osage, Grandview, Hickman Mills,

Independence, Lee’s Summit, Liberty, North Kansas City, Park Hill, and Raytown School Districts. HEW

subsequently was dismissed for plaintiffs’ failure to prove that the agency acted with racial animus or abused its

discretion in the enforcement of Title VI. See Order of July 16, 1984.

7

The court speciﬁcally found that Independence, Lee’s Summit, Liberty, North Kansas City, and Park Hill had

earlier maintained dual school systems, but the other districts had not. Id. at 43–95.

8

H.B. 171 increased from 500,000 to 700,000 the size of a city that should constitute a single school district. In the

1960 census, the population of Kansas City did not exceed 500,000. The court found that signiﬁcant annexations

in eastern and southern Jackson and Clay Counties occurred after the bill was enacted and that KCMSD had

annexed several all-white schools from 1955 to 1973.

9

In 1982 the Center district had an enrollment of 10.6% black, Grandview 9.8%, Hickman Mills 16.7%, and

Raytown 7.6%. Id. at 41–42.

10

See Note 22, infra.

11

While the court conceded that the State may have through its actions created an atmosphere in which private

white individuals and members of the real estate, banking, and insurance communities could justify bias against

blacks, it found no evidence that the State signiﬁcantly encouraged such practices. 593 F.Supp. at 1501–03. The

court also found that freeway placement did not amount to a constitutional violation.

12

In Little Rock this court rejected the consolidation remedy but ordered adjustment of the boundaries between the

districts, a voluntary intradistrict or interdistrict transfer system, the exploration of magnet or special school or

programs, and consideration of cooperative programs. 778 F.2d at 435–36. In Liddell we approved a settlement

providing for intradistrict relief, a voluntary transfer program between cities and suburban schools and a magnet

school program.

13

Chief Judge Lay’s dissent, in contrasting facts to rhetoric “doth protest too much.” W. Shakespeare, Hamlet, Act

III, sc. ii, line 242. The language, on its ﬁrst page particularly, is exaggerated, without support in the record. The

“extravagant language” (see Milliken, Stewart, J., concurring, 418 U.S. 753, 94 S.Ct. 3112, requires this rejoinder.

14

We need point to only a few examples. “The record is replete with evidence of constitutional violations by many of

the SSDs and of the effect those violations had on all of the SSDs and on the KCMSD.” Chief Judge Lay’s dissent

at 94. In discussing the rejection of the evidence of Dr. James D. Anderson, plaintiff’s expert historian which the

district court discussed in detail in the June 5, 1985 Order, id. at 15–16, 18, Chief Judge Lay states: “This

evidence was highly probative and it was wholly arbitrary for the court to reject it and inject its own inferences.

Moreover, I believe it is especially crucial in a case of this nature to give great consideration to the testimony of

historical experts where the theory to be proved occurred long ago and few witnesses are alive to testify.” Chief

Judge Lay’s dissent at 103, n. 17. The increase in black enrollment in the SSDs since Brown “is conclusive

evidence that the lack of schools for blacks in the SSDs prior to 1954 was a deterrent to blacks settling there. * * *

It is clear that the SSDs as well as the state and KCMSD, have all failed to fulﬁll their afﬁrmative duty under

Brown v. Board of Ed. to eliminate the vestiges of their prior segregative policies and that signiﬁcant interdistrict

effects of these policies are still evident in the Kansas City metropolitan area.” Id. at 106. “Here the racial

imbalance is clear evidence of continuing segregation following a pre–1954 de jure policy.” Id. at 109.

15

The district court pointed to evidence that the SSDs are governed by local boards elected by the voters, hire the

districts, a voluntary intradistrict or interdistrict transfer system, the exploration of magnet or special school or programs, and consideration of cooperative programs. 778 F.2d at 435–36. In Liddell we approved a settlement providing for intradistrict relief, a voluntary transfer program between cities and suburban schools and a magnet school program.

13

Chief Judge Lay’s dissent, in contrasting facts to rhetoric “doth protest too much.” W. Shakespeare, Hamlet, Act

III, sc. ii, line 242. The language, on its ﬁrst page particularly, is exaggerated, without support in the record. The

“extravagant language” (see Milliken, Stewart, J., concurring, 418 U.S. 753, 94 S.Ct. 3112, requires this rejoinder.

14

We need point to only a few examples. “The record is replete with evidence of constitutional violations by many of

the SSDs and of the effect those violations had on all of the SSDs and on the KCMSD.” Chief Judge Lay’s dissent

at 94. In discussing the rejection of the evidence of Dr. James D. Anderson, plaintiff’s expert historian which the

district court discussed in detail in the June 5, 1985 Order, id. at 15–16, 18, Chief Judge Lay states: “This

evidence was highly probative and it was wholly arbitrary for the court to reject it and inject its own inferences.

Moreover, I believe it is especially crucial in a case of this nature to give great consideration to the testimony of

historical experts where the theory to be proved occurred long ago and few witnesses are alive to testify.” Chief

Judge Lay’s dissent at 103, n. 17. The increase in black enrollment in the SSDs since Brown “is conclusive

evidence that the lack of schools for blacks in the SSDs prior to 1954 was a deterrent to blacks settling there. * * *

It is clear that the SSDs as well as the state and KCMSD, have all failed to fulﬁll their afﬁrmative duty under

Brown v. Board of Ed. to eliminate the vestiges of their prior segregative policies and that signiﬁcant interdistrict

effects of these policies are still evident in the Kansas City metropolitan area.” Id. at 106. “Here the racial

imbalance is clear evidence of continuing segregation following a pre–1954 de jure policy.” Id. at 109.

15

The district court pointed to evidence that the SSDs are governed by local boards elected by the voters, hire the

superintendents and teachers, by vote establish their own tax levy, have plenary power to establish school

attendance zones, and determine whether to provide transportation for their students. Reorganization is a

decision to be made by the local school districts, and the state constitution prohibits legislative enactment of

special laws to change the boundaries of any school district. The district court further found that there was no

discriminatory intent in the establishment or maintenance of the boundary lines between the school districts.

Order of June 5, 1984 at 10–11.

16

The district court in its June 5, 1984 Order made the following ﬁndings: The evidence that segregated schools

existing before 1954 were the direct and substantial cause of blacks leaving each SSD, and that such had a

signiﬁcant segregative effect in the KCMSD “was weak, speculative and in any event de minimis.” See Order of

June 5, 1984 at 12. Plaintiff’s argument that the state through its agents, the SSDs, maintained a regional black

interdistrict school system causing blacks to leave the SSDs and migrate to Kansas City in search of an education

is not supported by the law or the evidence. Id. at 15. Assuming the entire population decrease in the three county

area was caused by people leaving and going to Kansas City because of the dual school system, it found “the

impact of that movement on the KCMSD enumeration insigniﬁcant.” Id. at 16. The motivation for blacks leaving

the three county area and moving to Kansas City “resulting from segregated schools was de minimis and

insigniﬁcant” when compared with other primary motivating factors transferring blacks to the KCMSD under the

segregated school system “is not a cause of the present racial distribution of the population in the three county

area.” Id. at 18. The Jenkins class did not persuade the court “that any vestiges or signiﬁcant effects of the pre–

1954 dual school system remain” in any of the SSDs. Id. at 18. “At most plaintiff’s evidence is only de minimis and

is therefore legally insufﬁcient to justify the relief sought against the suburban school district defendants.” Id. at

98. The district court summarized:

Another factor negating the importance of plaintiffs’ voluminous pre–1954 evidence is simply its age. Our

society is dynamic; myriad factors produce a multitude of simultaneous decisions and consequent effects. If it

were a stagnant entity, the pernicious effects of de jure segregation would be obvious. Due to its ﬂuid nature,

however, acts now 30 years past have negligible present effects. Such is the fate of the discriminatory

practices plaintiffs took months to develop. Too many events have intervened, reshaping earlier actions. Lee

v. Lee County, supra, 639 F.2d at 1259.

Id. at 98–99. In concluding, the district court stated “even if the court were to view plaintiff’s evidence liberally,

which under Rule 41(b), it is not required to do, the violations proved are at most, de minimis and far removed

in time.” Id. at 105.

Chief Judge Lay’s dissent does not establish what the Jenkins class and KCMSD did not argue, that these

ﬁndings of fact are clearly erroneous.

17

Chief Judge Lay’s dissent also argues that a recent order of the district court made some nine months after the

argument of this case illustrates that the refusal to grant interdistrict relief was clearly erroneous and contradictory

to its own ﬁndings. We cannot read the general statement in the recent order to have the effect of setting aside

carefully detailed ﬁndings of facts and conclusions in its 105 page June 5 Order, its 21 page order on intradistrict

liability, or its 45 page order on remedy.

18

See Note 16, supra.

19

Milliken makes clear that “an interdistrict remedy might be in order * * * where district lines have been deliberately

drawn on the basis of race.” 606 F.2d at 228 (quoting Milliken, 418 U.S. at 745, 94 S.Ct. at 3127). Unlike the

present case, Morrilton contains ﬁndings that clearly fall within the Milliken language. We dealt in Morrilton with

the consolidation of school districts in Conway County, Arkansas that created an all-black East Side District and a

disproportionately white Morrilton District. The court stated:

The violation here is clearly interdistrict in nature. East Side is almost entirely black and includes territory that

17
argument of this case illustrates that the refusal to grant interdistrict relief was clearly erroneous and contradictory to its own ﬁndings. We cannot read the general statement in the recent order to have the effect of setting aside carefully detailed ﬁndings of facts and conclusions in its 105 page June 5 Order, its 21 page order on intradistrict liability, or its 45 page order on remedy.

18

See Note 16, supra.

19

Milliken makes clear that “an interdistrict remedy might be in order * * * where district lines have been deliberately

drawn on the basis of race.” 606 F.2d at 228 (quoting Milliken, 418 U.S. at 745, 94 S.Ct. at 3127). Unlike the

present case, Morrilton contains ﬁndings that clearly fall within the Milliken language. We dealt in Morrilton with

the consolidation of school districts in Conway County, Arkansas that created an all-black East Side District and a

disproportionately white Morrilton District. The court stated:

The violation here is clearly interdistrict in nature. East Side is almost entirely black and includes territory that

would properly have been absorbed by the surrounding districts were it not for racial considerations. The

boundaries of the East Side District, and consequently, the boundaries of the other school districts in Conway

County, were not neutrally drawn. Thus, the prohibition in other cases * * * is not applicable here. Interdistrict

relief is appropriate and necessary to remedy the constitutional violation.

Id. (citations omitted). The court continued:

Here, the nature of the violation was the consolidation of school districts on the basis of race. * * * [T]he

effects of that consolidation were manifested primarily in the boundaries and racial composition of the

Morrilton, Plumerville and East Side Districts. East Side is almost all black, and Morrilton is disproportionately

white.

Id. at 229.

Morrilton holds that the unconstitutional consolidation of school districts so as to create an all-black district

leaving others disproportionately white may properly be remedied through interdistrict relief. To argue that

Morrilton compels imposition of an interdistrict remedy on the innocent SSDs in this case ignores that it deals

with racial gerrymandering.

20

The court also speciﬁcally found the converse. The district court found that no SSD had committed any

constitutional violation that had interdistrict segregative effect in the KCMSD or any other district. Order of June 5,

1984 at 18–19, 45, 48, 51, 54, 59, 67, 74, 78, 83, 91, and 95.

21

The court observed that people move for a variety of reasons, including a desire to be with persons of the same

race or religion. It speciﬁcally found that many blacks who moved to the suburbs did so to enjoy a middle class

environment rather than an integrated environment. Order of June 5, 1984 at 35. A substantial number of black

families moved to the SSDs during and after the 1960s, many from inside the KCMSD. Id. at 41–42. There was

testimony that crime and city riots were factors in housing choices.

22

With respect to the various districts, the court found that Fort Osage had had no covenants, Order of June 5,

1984 at 51, that Grandview, Lee’s Summit, and North Kansas City had very few covenants, id. at 53, 73, and 83,

and that Independence and Liberty also had few such covenants. Id. at 66, 77. The district court found that the

restrictive covenants had no effect in Blue Springs, id. at 44–45, and Park Hill, id. at 90. There was no evidence

that covenants prevented blacks from moving into Independence, id. at 66, Lee’s Summit, id. at 73, or Liberty, id.

at 78, and there was no present effect of past practices in preventing movement into Center, id. at 48, Hickman

Mills, id. at 59, and Raytown, id. at 94. There was no credible evidence of housing discrimination in North Kansas

City that had substantial interdistrict effect and much of the development there occurred after the effects of the

few covenants were mooted by Shelley, id. at 83, and similar development after Shelley eliminated the effect of

such covenants in Grandview. Id. at 53.

23

Both cases dealt not only with the housing issue, but also contained strong ﬁndings based upon boundary

violations. See Part VI, infra.

24

On similar facts in United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y.1985), decided after

submission of this case, a New York district court imposed an interdistrict remedy based on housing violations.

The detailed ﬁndings of the district court established a lengthy chain of actions which were designed to and

succeeded in concentrating the black population in southwest Yonkers and in maintaining east and northwest

Yonkers as overwhelmingly white communities. In contrast to the facts presented in this case, not one of Yonkers’

subsidized housing projects for families was located in the overwhelmingly white neighborhoods of the city’s east

and northwest sections. Sites for such projects in white communities were repeatedly considered and rejected.

Such action contributed signiﬁcantly to extreme segregation in Yonkers. Id. at 1364–65. More than 30 years of

subsidized housing activity with a sizeable and changing group of city ofﬁcials sharing responsibility was involved.

Id. at 1369. Over that period, there was constant strong community opposition following proposals of sites, a

political structure likely to make community opposition effective, and extreme consistency in sites in east Yonkers

and other heavily white areas being rejected. Whatever the personnel, there was a common theme that racially

inﬂuenced opposition to subsidized housing in certain areas of the city and acquiescence in that opposition by city

ofﬁcials. Id. at 1369–70. The court found that the extreme concentration of subsidized housing in southwest

Yonkers was the result of a pattern and practice of racial discrimination by city ofﬁcials. Id. at 1373.

25

Chief Judge Lay’s dissent devotes considerable discussion to the ﬁndings of the district court in the intradistrict

hearing concerning the acts of KCMSD. It refers to the movement of the black population from the central city in a

southeast direction. See 593 F.Supp. at 1494. The dissent embarks upon factﬁndings of its own, however, when it

Mills, id. at 59, and Raytown, id. at 94. There was no credible evidence of housing discrimination in North Kansas City that had substantial interdistrict effect and much of the development there occurred after the effects of the few covenants were mooted by Shelley, id. at 83, and similar development after Shelley eliminated the effect of such covenants in Grandview. Id. at 53.

23

Both cases dealt not only with the housing issue, but also contained strong ﬁndings based upon boundary

violations. See Part VI, infra.

24

On similar facts in United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y.1985), decided after

submission of this case, a New York district court imposed an interdistrict remedy based on housing violations.

The detailed ﬁndings of the district court established a lengthy chain of actions which were designed to and

succeeded in concentrating the black population in southwest Yonkers and in maintaining east and northwest

Yonkers as overwhelmingly white communities. In contrast to the facts presented in this case, not one of Yonkers’

subsidized housing projects for families was located in the overwhelmingly white neighborhoods of the city’s east

and northwest sections. Sites for such projects in white communities were repeatedly considered and rejected.

Such action contributed signiﬁcantly to extreme segregation in Yonkers. Id. at 1364–65. More than 30 years of

subsidized housing activity with a sizeable and changing group of city ofﬁcials sharing responsibility was involved.

Id. at 1369. Over that period, there was constant strong community opposition following proposals of sites, a

political structure likely to make community opposition effective, and extreme consistency in sites in east Yonkers

and other heavily white areas being rejected. Whatever the personnel, there was a common theme that racially

inﬂuenced opposition to subsidized housing in certain areas of the city and acquiescence in that opposition by city

ofﬁcials. Id. at 1369–70. The court found that the extreme concentration of subsidized housing in southwest

Yonkers was the result of a pattern and practice of racial discrimination by city ofﬁcials. Id. at 1373.

25

Chief Judge Lay’s dissent devotes considerable discussion to the ﬁndings of the district court in the intradistrict

hearing concerning the acts of KCMSD. It refers to the movement of the black population from the central city in a

southeast direction. See 593 F.Supp. at 1494. The dissent embarks upon factﬁndings of its own, however, when it

argues that such movement “directly result[ed] in displacing whites into the SSDs.” Chief Judge Lay’s dissent at

98–99. This is directly contrary to the ﬁnding of the district court in its consideration of interdistrict liability, and the

dissent makes no effort to consider these statements in a proper Rule 52(a) analysis.

26

A recent article, Housing Discrimination as a Basis for Interdistrict School Desegregation Remedies, 93 Yale L.J.

340 (1983), ﬂatly argues for the extension of housing as a basis for metropolitan school desegregation remedies

and as a means of overcoming the Milliken barriers. It outlines in some detail the use of this theory in various

desegregation cases, including this one. See id. at nn. 20 & 21. Its description of the limitations of this theory are

of interest:

By contrast, the housing approach is limited in two ways. It does not justify expansion of the remedy beyond

the geographical area of operation of the housing authority or other governmental entity found guilty of

constitutional violations. Further, the scope of the remedy is limited to the extent to which ofﬁcial housing

discrimination demonstrably caused school segregation. Consequently, the housing approach is consistent

with the agency principle that seeks to prevent local agents of the state from escaping participating in

remedies for their own wrongdoing.

Id. at 347 (emphasis added) (footnotes omitted). There simply is no evidence in the record in this case that

ofﬁcial housing discrimination caused school segregation and the ﬁndings of the district court as we have

outlined above so demonstrate.

27

Goldsboro commented about the myriad reasons for increase in black population in metropolitan areas, referring

to Bradley v. School Board of the City of Richmond, Va., 462 F.2d 1058, 1066 (4th Cir.1972), aff’d without opinion

by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973). Goldsboro, 745 F.2d at 330 n. 9.

28

Chief Judge Lay in his dissent argues that the SSDs did not satisfy the requirements of Brown by simply adopting

a racially neutral position. The argument that the SSDs must do more to counteract the interdistrict effects ﬂowing

from the pre–1954 interdistrict violations completely and totally ignores the district court’s ﬁndings that any pre–

1954 acts had negligible and de minimis current effects.

29

The Supreme Court, in Wygant v. Jackson Board of Education, 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260

(1986), pointed to the continued vitality of this principle.

30

A voluntary interdistrict program is one that has great potential for improving the racial balance in the Kansas City

area. The experience in St. Louis with such a plan seems to have been favorable. The district court is correct in

its holding that such a program cannot be mandatorily imposed upon the record before the court. Whether a

refusal of a district to participate in such a voluntary program may evidence discriminatory intent and thus be an

independent basis for further relief and mandatory participation is an issue that we should not anticipate.

31

That portion of the court’s order relating to achieving AAA status divided costs evenly between the State and

KCMSD. None of the parties object to this portion of the ordered remedy which provides for an increase in

librarians and teachers primarily for the purpose of providing additional planning time.

32

This program carried a total cost of $12,000,000 with payments of $2,000,000, $4,000,000, and $6,000,000 for

each of three years.

33

29
(1986), pointed to the continued vitality of this principle.

30

A voluntary interdistrict program is one that has great potential for improving the racial balance in the Kansas City

area. The experience in St. Louis with such a plan seems to have been favorable. The district court is correct in

its holding that such a program cannot be mandatorily imposed upon the record before the court. Whether a

refusal of a district to participate in such a voluntary program may evidence discriminatory intent and thus be an

independent basis for further relief and mandatory participation is an issue that we should not anticipate.

31

That portion of the court’s order relating to achieving AAA status divided costs evenly between the State and

KCMSD. None of the parties object to this portion of the ordered remedy which provides for an increase in

librarians and teachers primarily for the purpose of providing additional planning time.

32

This program carried a total cost of $12,000,000 with payments of $2,000,000, $4,000,000, and $6,000,000 for

each of three years.

33

The valuation per pupil in KCMSD is $60,371 as opposed to averages of $40,000 in the SSDs. State Ex. 4.

1

The lead opinion does not make clear its precise view of the District Court holding that because the SSDs are not

themselves constitutional wrongdoers, they may not be made part of an interdistrict remedy for State housing

violations. See ante at 671–74. At points, the opinion appears to agree that Milliken precludes inclusion of non-

culpable SSDs in an interdistrict remedy for State violations. See ante at 672–74. At other points, however, the

opinion suggests that the District Court viewed the lack of SSD culpability simply as an important factor in

determining that interdistrict relief was inappropriate, a factor considered along with factual ﬁndings as to the lack

of interdistrict effects of state-fostered housing discrimination. See ante at 671–73. This is a mischaracterization

of the District Court’s position which understates the signiﬁcance the District Court attached to SSD innocence.

The District Court repeatedly made clear its view that the fact that the SSDs were not constitutional violators,

taken by itself, barred requiring SSD participation in an interdistrict remedy. See Opinion of June 5 at 6, 34–42,

45, 47–48, 51, 53–54, 58–59, 66–67, 73–74, 78, 82–83, 89–91, 94–95, 97, 100–103. Further, the District Court

did not determine whether or what interdistrict segregation is attributable to State housing violations, and never

claims to have made such a determination; instead, having concluded that SSD innocence precluded interdistrict

relief, the District Court found it unnecessary to devote substantial consideration to the question of interdistrict

effects. See infra, p. 690, Part II.

2

The lead opinion’s citation of Hills is particularly ironic because the author of Hills, Mr. Justice Stewart, expressly

stated in his Milliken concurrence that state ofﬁcials’ housing violations, if they had an interdistrict effect, would

justify an interdistrict remedy. See infra at 689, quoting Milliken, 418 U.S. at 755, 94 S.Ct. at 3132 (Stewart, J.,

concurring).

3

Indeed, the principal opinion concedes that a constitutional violation in the operation of the KCMSD with

interdistrict segregative effects felt in the SSDs would merit an interdistrict remedy involving the SSDs. See, e.g.,

ante at 672. Yet it offers no explanation of how or why violations by the State or the KCMSD in operating KCMSD

are to be distinguished from State housing violations. In either case the SSDs would themselves be innocent of

wrongdoing, but would feel the effects of other actors’ violations.

4

Of course, since formulation of an appropriate interdistrict remedy is guided by equitable principles, the fact that a

school district has not itself violated the Constitution may affect the particular role it is assigned in remedying the

state’s violation. See infra at 694–95.

5

The lead opinion maintains that Morrilton is a gerrymandering case that “must be limited to its facts.” Ante at 673–

74. Yet, the lead opinion provides no explanation of why the principles we approved in Morrilton are to be so

limited in their application. It does not explain how or why State discrimination in drawing school district

boundaries is to be distinguished from State discrimination in housing. Housing violations may be harder to prove

or create special problems of remedy, but that does not mean that no remedy should be afforded.

6

In a case relied upon by the District Court and by the principal opinion, Bell v. Board of Education, Akron Public

Schools, 683 F.2d 963 (6th Cir.1982), the Sixth Circuit refused to accept that an otherwise innocent school district

could be made to participate in a remedy for the discriminatory housing practices of other governmental agencies.

Id. at 968. I ﬁnd this portion of Bell irreconcilable with the principles enunciated by the Supreme Court in Milliken,

as well as with this Court’s Morrilton opinion.

7

The District Court did not base its award of intradistrict relief against the State on these housing violations, since it

found a “more salient reason,” 593 F.Supp. at 1503, for State intradistrict liability in the State’s failure to dismantle

the dual school system it had created within the KCMSD. Id. at 1503–1504. The issue here, however, is whether

interdistrict relief is warranted, an issue the District Court did not speak to in its evaluation of state housing

discrimination.

8

Missouri’s state legislature established the LCRA in 1953 and gave it, subject to the approval of Kansas City’s

government, citywide jurisdiction to administer urban-renewal programs. §§ 99.320(1), 99.330 R.S.Mo. The

HAKC was created by the state legislature in 1939 and, subject to Kansas City’s approval, given authority to

administer low-income housing programs throughout the City. § 99.040 R.S.Mo.

boundaries is to be distinguished from State discrimination in housing. Housing violations may be harder to prove or create special problems of remedy, but that does not mean that no remedy should be afforded.

6

In a case relied upon by the District Court and by the principal opinion, Bell v. Board of Education, Akron Public

Schools, 683 F.2d 963 (6th Cir.1982), the Sixth Circuit refused to accept that an otherwise innocent school district

could be made to participate in a remedy for the discriminatory housing practices of other governmental agencies.

Id. at 968. I ﬁnd this portion of Bell irreconcilable with the principles enunciated by the Supreme Court in Milliken,

as well as with this Court’s Morrilton opinion.

7

The District Court did not base its award of intradistrict relief against the State on these housing violations, since it

found a “more salient reason,” 593 F.Supp. at 1503, for State intradistrict liability in the State’s failure to dismantle

the dual school system it had created within the KCMSD. Id. at 1503–1504. The issue here, however, is whether

interdistrict relief is warranted, an issue the District Court did not speak to in its evaluation of state housing

discrimination.

8

Missouri’s state legislature established the LCRA in 1953 and gave it, subject to the approval of Kansas City’s

government, citywide jurisdiction to administer urban-renewal programs. §§ 99.320(1), 99.330 R.S.Mo. The

HAKC was created by the state legislature in 1939 and, subject to Kansas City’s approval, given authority to

administer low-income housing programs throughout the City. § 99.040 R.S.Mo.

9

I would require the District Court to make ﬁndings on these points on remand.

10

I note at this juncture several concerns I have over the District Court’s analysis of the claims against FHA and

HUD.

From the mid–1930s through 1947, the FHA’s appraisal manuals stressed the desirability of racial covenants,

limited availability of mortgage insurance for developments not subject to racial covenants, and down-graded

appraisals in neighborhoods undergoing integration. After 1947, the FHA removed explicit racial references

from its manuals, but continued to emphasize in them the importance of “social homogeneity” and “compatibility

among the neighborhood occupants.” 593 F.Supp. at 1497; P.Ex. 1305. Although a number of other courts have

noted the invidious character of these and other aspects of FHA’s appraisal policies, see, e.g., Reed v. Rhodes,

607 F.2d 714, 729 (6th Cir.1979), cert. denied, 445 U.S. 935, 100 S.Ct. 1329, 63 L.Ed.2d 770 (1980); Oliver v.

Kalamazoo Board of Education, 368 F.Supp. 143, 182–183 (W.D.Mich.1973), aff’d, 508 F.2d 178 (6th Cir.1974),

cert. denied, 421 U.S. 963, 95 S.Ct. 1950, 44 L.Ed.2d 449 (1975), the District Court exonerated the FHA,

reasoning that the FHA was merely gauging the economic realities associated with racial discrimination. 593

F.Supp. at 1497. I believe that in so holding the District Court overlooked the fact that FHA was not merely an

uninvolved observer, but was rather an active participant in the housing market whose policies and practices

had a signiﬁcant impact on the market. FHA practices set a standard followed by other lenders and complied

with by real estate developers who wished their developments to be eligible for FHA-insured ﬁnancing, even if

some units were not ultimately ﬁnanced through the FHA. The FHA not only gave private discrimination

consideration in its own conduct, but also encouraged others to engage in discrimination; this government

cannot lawfully do.

The District Court’s ﬁnding that FHA’s policies and practices have no signiﬁcant current effect may be similarly

vulnerable. The Court based its conclusion on the fact that prior to 1950 FHA insured 15,000 homes in the

KCMSD, and between 1950 and 1980 there were over 2,000,000 housing turnovers in the area. 593 F.Supp. at

1497. But the FHA’s practices may have affected far more homes than were actually ﬁnanced through the FHA.

With regard to HUD, the District Court found that the agency had acted “reasonably” because it had taken

action in the 1970s to end discriminatory practices by HAKC, whose programs HUD funded. 593 F.Supp. 1498–

1499. Yet there was extensive evidence, not addressed by the District Court, that HUD knew of shortcomings in

HAKC’s tenant-assignment practices for years without taking action to end them.

In view of the fact that, under the prevailing view in this Court, there will be no remand for further fact-ﬁnding on

the effects of housing discrimination, I do not pursue further this line of argument. Under my view (shared in

part by three other judges), there would be such a remand, and in that event it would be open to the District

Court to reconsider its ﬁndings as to HUD and FHA and, if appropriate, bring them back in as participants in an

interdistrict remedy.

11

However, I note with regard to the latter basis of State liability that the District Court stated, “To the extent, if any,

that the racial composition of the KCMSD is the result of steering and blockbusting practices by private real

estage agents ... the Court ﬁnds that these actions of private individual real estate agents are not actions of the

KCMSD or any SSD.” Opinion of June 5 at 41. This reinforces my conclusion that the District Court has left open

the question whether State-fostered private discrimination in the housing area has current interdistrict segregative

effects.

1

Cf. T.H. Huxley, Lay Sermons, Addresses, and Reviews (1891) (“A world of fact lies outside and beyond the world

of words”).

2

For the history of this circuit’s school desegregation rulings, see Heaney, Busing, Timetables, Goals, and Ratios:

Touchstones of Equal Opportunity, 69 Minn.L.Rev. 735 (1985).

3

The lead opinion’s reliance on Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518

(1985), provides the basis of its criticism that this dissent “engag[es] in an original evaluation of the voluminous

and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the

district court.” Ante at 668. It suggests that this dissent “embarks upon fact ﬁnding of [its] own” and makes “no

estage agents ... the Court ﬁnds that these actions of private individual real estate agents are not actions of the KCMSD or any SSD.” Opinion of June 5 at 41. This reinforces my conclusion that the District Court has left open the question whether State-fostered private discrimination in the housing area has current interdistrict segregative effects.

1

Cf. T.H. Huxley, Lay Sermons, Addresses, and Reviews (1891) (“A world of fact lies outside and beyond the world

of words”).

2

For the history of this circuit’s school desegregation rulings, see Heaney, Busing, Timetables, Goals, and Ratios:

Touchstones of Equal Opportunity, 69 Minn.L.Rev. 735 (1985).

3

The lead opinion’s reliance on Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518

(1985), provides the basis of its criticism that this dissent “engag[es] in an original evaluation of the voluminous

and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the

district court.” Ante at 668. It suggests that this dissent “embarks upon fact ﬁnding of [its] own” and makes “no

effort to consider [the district court’s ﬁnding] in a proper Rule 52(a) analysis.” Ante at 677 n. 25. It also urges that

the dissent “completely and totally ignores the district court’s ﬁndings that any pre–1954 acts had negligible and

de minimis current effects.” Ante at 680 n. 28.

I start with the legal premise, never refuted by the lead opinion, that the district court’s opinion is fundamentally

unsound because it is based on an erroneous legal premise in its interpretation of Milliken and because it totally

ignores the historical and factual record. Not only is the record contradictory, as the lead opinion admits, but in

its own opinions the district court contradicts itself. This dissent does not substitute the views of appellate

judges for that of the trial court. What this dissent focuses on is that the district court’s application of the law to

its ﬁndings is erroneous, a conclusion to which the clearly erroneous standard does not even apply. It is not a

duplication of the district court’s role when on review an appellate court identiﬁes errors in the district court’s

reasoning. In Anderson, the Supreme Court made it clear that to uphold a district court’s ﬁndings as not clearly

erroneous, the district court’s account of the evidence in making those ﬁndings must be plausible in light of the

record viewed in its entirety. See Anderson, 470 U.S. at 573–74, 105 S.Ct. at 1511–12. Anderson does not hold

that a trial court’s factﬁnding power is limitless, nor that appellate review is nothing more than a rubber stamp of

the district court’s actions.

Moreover, the lead opinion states that the Jenkins class and the KCMSD did not argue that the district court’s

ﬁndings are clearly erroneous. This assertion too conveniently seeks to avoid the legal arguments made by the

appellants that the district court formulated conclusions which were incorrectly based upon erroneous legal

premises. See Reply and Response Brief of Appellant/Cross-Appellee Kansas City, Missouri School District at

14–24.

4

The district court’s fundamental misconstruction of Milliken is illustrated by the following transcript excerpts of

statements made by the district judge at trial:

As I read Milliken and its progeny, the constitutional violation must have occurred in one of the suburban

districts.... Now, that’s Milliken, as I read it. And 80 percent of [the plaintiffs’] proof in this case so far would

not comport with Milliken. Now, if I’m reading Milliken wrong, then I’m reading it wrong. Tr. 7342–43.

But I was bound by law, as I read it [when dismissing the SSDs], that you cannot require an entity to be part

of the [interdistrict] remedy unless you found a constitutional violation on the part of that entity * * *. Tr. 24,

561–62.

In its June 5, 1984 opinion, the district court further stated:

Because each defendant district is independent and autonomous from the state of Missouri, and from all

other school districts, none has an afﬁrmative duty to merge with other districts. None can be held vicariously

liable for the acts of the state, federal government or other entities. And, absent a ﬁnding of an interdistrict

constitutional violation, none can be made a part of an interdistrict remedy.

Instead, plaintiffs had to prove ﬁrst that the segregated schools existing before 1954 were the direct and substantial cause of blacks leaving each defendant district; second, assuming that occurred, that it had a signiﬁcant segregative effect in the KCMSD. See, 418 U.S. at 744–45, [94 S.Ct. at 3127]; Lee, 639 F.2d at 1256 (“there must be clear proof of cause and effect and a careful delineation of the extent of the effect”). Plaintiffs’ proof was weak, speculative and in any event de minimus [sic]. Jenkins v. State of Mo., No. 77–0420–CV–W–4, slip op. at 12 (W.D.Mo. June 5, 1984). Even accepting Dr. Kain’s conclusion that the present racial segregation is due to discrimination, Dr. Kain offered no evidence or opinions tending to show that any actions or inactions of any SSD contributed in any signiﬁcant way to causing the racial residential separation he described. The Court ﬁnds that none of the SSDs did or failed to do anything which had any signiﬁcant effect on residential patterns in the Kansas City SMSA. His testimony, therefore, does not support plaintiffs’ claims for relief against the SSDs. Jenkins, June 5 opinion at 36. Again, in an order issued in January, 1985, the district court stated: It would be very beneﬁcial in the event the Eighth Circuit Court of Appeals were to reverse this Court’s dismissal of the suburban districts. It would be useful in any effort undertaken to seek voluntary consolidation between any or all of the school districts. However, because of restrictions on this Court’s remedial powers in restructuring the operations of local and state government entities, that portion of the KCMSD plan which would require the consolidation of eleven suburban school districts with KCMSD goes far beyond the nature and extent of the constitutional violation this Court found existed. See, Order ﬁled September 17, 1984. This Court found that there was no unconstitutional action on the part of any of the eleven suburban school districts nor was there evidence of constitutional violations by those school districts which had any signiﬁcant

record viewed in its entirety. See Anderson, 470 U.S. at 573–74, 105 S.Ct. at 1511–12. Anderson does not hold that a trial court’s factﬁnding power is limitless, nor that appellate review is nothing more than a rubber stamp of the district court’s actions. Moreover, the lead opinion states that the Jenkins class and the KCMSD did not argue that the district court’s ﬁndings are clearly erroneous. This assertion too conveniently seeks to avoid the legal arguments made by the appellants that the district court formulated conclusions which were incorrectly based upon erroneous legal premises. See Reply and Response Brief of Appellant/Cross-Appellee Kansas City, Missouri School District at 14–24.

4

The district court’s fundamental misconstruction of Milliken is illustrated by the following transcript excerpts of

statements made by the district judge at trial:

As I read Milliken and its progeny, the constitutional violation must have occurred in one of the suburban

districts.... Now, that’s Milliken, as I read it. And 80 percent of [the plaintiffs’] proof in this case so far would

not comport with Milliken. Now, if I’m reading Milliken wrong, then I’m reading it wrong. Tr. 7342–43.

But I was bound by law, as I read it [when dismissing the SSDs], that you cannot require an entity to be part

of the [interdistrict] remedy unless you found a constitutional violation on the part of that entity * * *. Tr. 24,

561–62.

In its June 5, 1984 opinion, the district court further stated:

Because each defendant district is independent and autonomous from the state of Missouri, and from all

other school districts, none has an afﬁrmative duty to merge with other districts. None can be held vicariously

liable for the acts of the state, federal government or other entities. And, absent a ﬁnding of an interdistrict

constitutional violation, none can be made a part of an interdistrict remedy.

Instead, plaintiffs had to prove ﬁrst that the segregated schools existing before 1954 were the direct and substantial cause of blacks leaving each defendant district; second, assuming that occurred, that it had a signiﬁcant segregative effect in the KCMSD. See, 418 U.S. at 744–45, [94 S.Ct. at 3127]; Lee, 639 F.2d at 1256 (“there must be clear proof of cause and effect and a careful delineation of the extent of the effect”). Plaintiffs’ proof was weak, speculative and in any event de minimus [sic]. Jenkins v. State of Mo., No. 77–0420–CV–W–4, slip op. at 12 (W.D.Mo. June 5, 1984). Even accepting Dr. Kain’s conclusion that the present racial segregation is due to discrimination, Dr. Kain offered no evidence or opinions tending to show that any actions or inactions of any SSD contributed in any signiﬁcant way to causing the racial residential separation he described. The Court ﬁnds that none of the SSDs did or failed to do anything which had any signiﬁcant effect on residential patterns in the Kansas City SMSA. His testimony, therefore, does not support plaintiffs’ claims for relief against the SSDs. Jenkins, June 5 opinion at 36. Again, in an order issued in January, 1985, the district court stated: It would be very beneﬁcial in the event the Eighth Circuit Court of Appeals were to reverse this Court’s dismissal of the suburban districts. It would be useful in any effort undertaken to seek voluntary consolidation between any or all of the school districts. However, because of restrictions on this Court’s remedial powers in restructuring the operations of local and state government entities, that portion of the KCMSD plan which would require the consolidation of eleven suburban school districts with KCMSD goes far beyond the nature and extent of the constitutional violation this Court found existed. See, Order ﬁled September 17, 1984. This Court found that there was no unconstitutional action on the part of any of the eleven suburban school districts nor was there evidence of constitutional violations by those school districts which had any signiﬁcant segregative effect within their own districts or on the KCMSD. Milliken v. Bradley, 418 U.S. 717, 745–48 [94 S.Ct. 3112, 3127–29, 41 L.Ed.2d 1069] (1974) (where respondents, alleging the Detroit school system was racially segregated, sought the creation of a uniﬁed school district as a remedy without a ﬁnding of constitutional violations by the suburban districts and without ﬁnding signiﬁcant segregative effects). “The Supreme Court in Hills v. Gautreaux, [425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976) ] has interpreted Milliken I to mean that district courts may not restructure or coerce local governments or their subdivisions.” Liddell v. State of Missouri, 731 F.2d 1294, 1308 (8th Cir.1984). Clearly a plan which would require the consolidation of suburban school districts, ones in which no constitutional violation or signiﬁcant segregative effect has been found, results in a restructuring and coercion of local government which is prohibited under Milliken I. Jenkins v. State of Mo., No. 77–0420–CV–W–4, slip op. at 2 (W.D.Mo. January 25, 1985).

5

In its brief on appeal, the state notes:

Thus, in any case in which a state school system exhibits a large measure of local control, Milliken I requires

that parties seeking an interdistrict remedy prove either (a) that the school district boundaries were

manipulated for racial reasons or (b) that some intentionally discriminatory action by the governmental

defendants—the State or the local school districts—was a “substantial cause” of “signiﬁcant” current

interdistrict segregation. Id.; see Hills v. Gautreaux, 425 U.S. 284, 294 & n. 11 [96 S.Ct. 1538, 1545 & n. 11,

47 L.Ed.2d 792] (1976) [Hills ] (Milliken I requires demonstration of “signiﬁcant” interdistrict segregative

effects caused by unlawful governmental act); Lee v. Lee County Board of Education, 639 F.2d 1243, 1254–

56 (5th Cir.1981).

Brief of State Appellees/Cross-Appellants at 10.

6

Judge Heaney, who authored the Morrilton opinion, now joins in this opinion’s speciﬁc conclusion that Morrilton

was never intended to be limited to gerrymandered boundaries. Moreover, this court’s reliance in Morrilton on

Board of School Comm’rs. clearly refutes the lead opinion’s position. In Morrilton, we adopted wholly the

language of the Seventh Circuit, which states:

[S]chool ofﬁcials may not maintain that their districts should be excluded from any interdistrict remedy if they

that parties seeking an interdistrict remedy prove either (a) that the school district boundaries were manipulated for racial reasons or (b) that some intentionally discriminatory action by the governmental defendants—the State or the local school districts—was a “substantial cause” of “signiﬁcant” current interdistrict segregation. Id.; see Hills v. Gautreaux, 425 U.S. 284, 294 & n. 11 [96 S.Ct. 1538, 1545 & n. 11, 47 L.Ed.2d 792] (1976) [Hills ] (Milliken I requires demonstration of “signiﬁcant” interdistrict segregative effects caused by unlawful governmental act); Lee v. Lee County Board of Education, 639 F.2d 1243, 1254– 56 (5th Cir.1981). Brief of State Appellees/Cross-Appellants at 10.

6

Judge Heaney, who authored the Morrilton opinion, now joins in this opinion’s speciﬁc conclusion that Morrilton

was never intended to be limited to gerrymandered boundaries. Moreover, this court’s reliance in Morrilton on

Board of School Comm’rs. clearly refutes the lead opinion’s position. In Morrilton, we adopted wholly the

language of the Seventh Circuit, which states:

[S]chool ofﬁcials may not maintain that their districts should be excluded from any interdistrict remedy if they

are found innocent of committing any constitutional violations because they should not be held responsible

for the acts of the state legislators or other state subdivisions such as a local housing authority or a zoning

board. The commands of the Fourteenth Amendment are directed at the state and cannot be avoided by a

fragmentation of responsibility among various agents. * * * If the state has contributed to the separation of the

races, it has the obligation to remedy the constitutional violations. That remedy may include school districts

which are its instrumentalities and which were the product of the violation.

Board of School Comm’rs., 573 F.2d at 410 (quoted in Morrilton, 606 F.2d at 228–29) (emphasis added)

(citation omitted). The lead opinion attempts to distinguish this language from Board of School Comm’rs. by

asserting that the school districts in that case were “mere instrumentalities of the state.” Ante at 673. As

grounds for its conclusion that the SSDs are “independent and their boundaries must be respected,” the district

court stated that “to ﬁnd the SSDs vicariously liable for acts of the state, the Court must make the threshold

determination that the SSDs are mere agents or arms of the state and not independent, locally autonomous

entities.” Jenkins, June 5 opinion at 101–02. See also id. at 8–14. Not only does the lead opinion’s statement

reﬂect the district court’s misconstruction of Milliken, but it overlooks the fact that an SSD may have some

attributes of autonomy and yet remain an instrumentality of the state.

In its June 5 opinion, the district court found that the SSDs had more attributes of autonomy than those

Michigan school districts examined in Milliken. Jenkins, June 5 opinion at 8. While it is true that the SSDs may

have some authority to act independently, that authority is delegated to them by the state and the state retains

ultimate authority over the SSDs’ actions. The SSDs exist pursuant to provisions of the Missouri constitution,

are maintained at the pleasure of the Missouri legislature, and are subject to the authority of state statutes and

the rules and regulations of the Missouri State Board of Education. See, e.g., Mo. Const. arts. III, § 40(20); IX.

Evidence introduced at trial acknowledged the authority of the Missouri General Assembly to reorganize

Missouri’s schools for the purpose of achieving racial balance. See, e.g., Plaintiffs’ Exhibit 1010. The Missouri

Supreme Court has found that school districts “form an integral part of the state, and constitute that arm or

instrumentality thereof discharging the constitutionally [e]ntrusted governmental function of imparting

knowledge and intelligence to the youth of the state,” School Dist. v. School Dist., 340 Mo. 779, 102 S.W.2d

909, 910 (1937), and that the school districts are statutory trustees for the discharge of the governmental

function to apportion funds in the best interests of education which by the constitution is entrusted to the state,

School Dist. No. 59 v. Maple Grove School Dist. No. 56, 359 S.W.2d 743, 747–48 (Mo.1962) (citing School

Dist. v. School Dist.). Moreover, the district court explicitly concluded in its September opinion that “none of the

provisions of the Constitution nor statutes of the State of Missouri would have prevented the State of Missouri

from fulﬁlling its afﬁrmative duty of disestablishing a dual school system subsequent to 1954.” Jenkins v. State

of Mo., 593 F.Supp. 1485, 1504 (W.D.Mo.1984). The court further concluded that “[i]t is clear that school

districts in the State exist pursuant to the State Constitution,” id., and that “[t]he State executive and its

agencies as well as the State’s General Assembly had and continue to have the constitutional obligation to

afﬁrmatively dismantle any system of de jure discrimination, root and branch,” id. at 1505.

7

This court’s line of cases interpreting and applying the Milliken standard to encompass a wide range of

constitutional violations is consistent with Justice Stewart’s restatement of the Supreme Court’s holding in his

concurring opinion in Milliken, in which he stated:

Since the mere fact of different racial composition in contiguous districts does not itself imply or constitute a

violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed,

fostered, or encouraged by the State or its political subdivisions, it follows that no inter-district violation was

shown in this case.

Milliken, 418 U.S. at 756, 94 S.Ct. at 3133 (Stewart, J., concurring) (emphasis added). Justice Stewart further

emphasized that

[t]he Constitution simply does not allow federal courts to attempt to change that situation unless and until it is

shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record

has been made in this case showing that the racial composition of the Detroit school population or that

residential patterns within Detroit and in the surrounding areas were in any signiﬁcant measure caused by

governmental activity, and it follows that the situation over which my dissenting Brothers express concern

cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of

Appeals.

Id. at 756 n. 2, 94 S.Ct. at 3133 n. 2 (emphasis added). Nowhere does Justice Stewart limit the deﬁnition of

unconstitutional governmental activity solely to instances of gerrymandering.

8

Under Missouri law, the SSDs are legally responsible for the constitutional violations of their predecessor districts.

See Lewis County C–I School Dist. v. Normile, 431 S.W.2d 118, 121 (Mo.1968) (en banc); McClure v. Princeton

Re-organized School Dist., 307 S.W.2d 726, 727–28 (Mo.Ct.App.1975); Lynch v. Webb City School Dist. No. 92,

373 S.W.2d 193, 200 (Mo.Ct.App.1963). See also Taylor v. Board of Educ., 294 F.2d 36, 38–39 (2d Cir.1961),

School Dist. No. 59 v. Maple Grove School Dist. No. 56, 359 S.W.2d 743, 747–48 (Mo.1962) (citing School Dist. v. School Dist.). Moreover, the district court explicitly concluded in its September opinion that “none of the provisions of the Constitution nor statutes of the State of Missouri would have prevented the State of Missouri from fulﬁlling its afﬁrmative duty of disestablishing a dual school system subsequent to 1954.” Jenkins v. State of Mo., 593 F.Supp. 1485, 1504 (W.D.Mo.1984). The court further concluded that “[i]t is clear that school districts in the State exist pursuant to the State Constitution,” id., and that “[t]he State executive and its agencies as well as the State’s General Assembly had and continue to have the constitutional obligation to afﬁrmatively dismantle any system of de jure discrimination, root and branch,” id. at 1505.

7

This court’s line of cases interpreting and applying the Milliken standard to encompass a wide range of

constitutional violations is consistent with Justice Stewart’s restatement of the Supreme Court’s holding in his

concurring opinion in Milliken, in which he stated:

Since the mere fact of different racial composition in contiguous districts does not itself imply or constitute a

violation of the Equal Protection Clause in the absence of a showing that such disparity was imposed,

fostered, or encouraged by the State or its political subdivisions, it follows that no inter-district violation was

shown in this case.

Milliken, 418 U.S. at 756, 94 S.Ct. at 3133 (Stewart, J., concurring) (emphasis added). Justice Stewart further

emphasized that

[t]he Constitution simply does not allow federal courts to attempt to change that situation unless and until it is

shown that the State, or its political subdivisions, have contributed to cause the situation to exist. No record

has been made in this case showing that the racial composition of the Detroit school population or that

residential patterns within Detroit and in the surrounding areas were in any signiﬁcant measure caused by

governmental activity, and it follows that the situation over which my dissenting Brothers express concern

cannot serve as the predicate for the remedy adopted by the District Court and approved by the Court of

Appeals.

Id. at 756 n. 2, 94 S.Ct. at 3133 n. 2 (emphasis added). Nowhere does Justice Stewart limit the deﬁnition of

unconstitutional governmental activity solely to instances of gerrymandering.

8

Under Missouri law, the SSDs are legally responsible for the constitutional violations of their predecessor districts.

See Lewis County C–I School Dist. v. Normile, 431 S.W.2d 118, 121 (Mo.1968) (en banc); McClure v. Princeton

Re-organized School Dist., 307 S.W.2d 726, 727–28 (Mo.Ct.App.1975); Lynch v. Webb City School Dist. No. 92,

373 S.W.2d 193, 200 (Mo.Ct.App.1963). See also Taylor v. Board of Educ., 294 F.2d 36, 38–39 (2d Cir.1961),

cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961) (school board at time of litigation held liable for the

discriminatory acts of predecessor boards. Any reference to the conduct of an SSD therefore includes liability for

any acts of its predecessors.

9

The district court found that four of the SSDs—Center, Raytown, Grandview, and Hickman Mills—did not operate

dual school systems because they had no black residents prior to 1954. However, this ﬁnding is highly

questionable, especially as to Raytown, Grandview, and Hickman Mills, in light of the school records and other

evidence before the district court which showed the presence of at least some black children in their predecessor

districts. In any event, that no black children may have lived in these districts prior to 1954 does not exculpate

these districts. The great weight of evidence at trial indicated that the fact that there were no schools for black

children to attend in these SSDs deterred blacks from moving to those districts in the ﬁrst place. See, e.g.,

Jenkins, 593 F.Supp. at 1490; testimony of Dr. James D. Anderson, an expert in the ﬁeld of the history of

American education, summarized in Brief of Amicus Curiae The Kansas City Branch of The National Association

for the Advancement of Colored People at 3–8.

10

This attempt to separate constitutional violations related to housing and the segregative policies of the various

school districts ignores the district court’s undisputed ﬁnding of the “inextricable connection between schools and

housing.” Jenkins, 593 F.Supp. at 1491. The constitutional violations here are so intertwined that it is impossible

to separate the effects of one from another.

11

But see this dissent’s footnote 6, supra, criticizing the lead opinion’s conclusion that the SSDs are not

instrumentalities of the State of Missouri.

12

Because Missouri mandated separate schools for blacks and whites until 1954, the current disparity between the

percentage of blacks attending school in the SSDs and KCMSD should raise a rebuttable presumption that the de

facto segregation that currently exists is the result of the prior constitutional violations. See Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). The lead opinion argues

that the Swann presumption that proof of prior de jure segregation coupled with a continuing racial imbalance

establishes liability unless rebutted is inapplicable in interdistrict cases. To support this conclusion, the lead

opinion notes that the Supreme Court did not apply the Swann presumption in Milliken. Ante at 670. Unlike this

case, however, there was no allegation nor proof in Milliken that prior de jure segregation had interdistrict effects.

In any event, even if the Swann presumption does not apply to interdistrict cases, the plaintiffs presented

sufﬁcient evidence that the constitutional violation of the SSDs have current interdistrict effects.

13

Other examples of KCMSD’s segregative policies include the transfer of its best and most experienced black

teachers to white schools, leaving less capable teachers in black and changing schools and accelerating those

schools’ transition to all-black schools. Too, as the district court found, the liberal transfer policy allowed “whites

living in racially transitional neighborhoods in Kansas City to transfer * * * to whiter schools.” Jenkins, 593 F.Supp.

at 1493.

14

The lead opinion asserts that this statement is an example of “appellate factﬁnding.” To the contrary, this

facto segregation that currently exists is the result of the prior constitutional violations. See Swann v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971). The lead opinion argues that the Swann presumption that proof of prior de jure segregation coupled with a continuing racial imbalance establishes liability unless rebutted is inapplicable in interdistrict cases. To support this conclusion, the lead opinion notes that the Supreme Court did not apply the Swann presumption in Milliken. Ante at 670. Unlike this case, however, there was no allegation nor proof in Milliken that prior de jure segregation had interdistrict effects. In any event, even if the Swann presumption does not apply to interdistrict cases, the plaintiffs presented sufﬁcient evidence that the constitutional violation of the SSDs have current interdistrict effects.

13

Other examples of KCMSD’s segregative policies include the transfer of its best and most experienced black

teachers to white schools, leaving less capable teachers in black and changing schools and accelerating those

schools’ transition to all-black schools. Too, as the district court found, the liberal transfer policy allowed “whites

living in racially transitional neighborhoods in Kansas City to transfer * * * to whiter schools.” Jenkins, 593 F.Supp.

at 1493.

14

The lead opinion asserts that this statement is an example of “appellate factﬁnding.” To the contrary, this

statement is based on the district court’s own observations as to what actually occurred in the Kansas City

metropolitan area due to institutional segregation. See Jenkins, 593 F.Supp. at 1493–94.

15

It is conceivable that the district court found nothing inconsistent in so holding, because it labored throughout

these proceedings under the miscomprehension that Milliken requires each individual SSD to be a constitutional

violator. The lead opinion now urges that the August 25, 1986 opinion was merely a general order which does not

contradict the district court’s earlier, more lengthy orders. Ante at 671 n. 17. This statement is at odds not only

with the August order’s plain language, but also with the objections to that August order made to this court by the

SSDs on the grounds that the order was entered after the SSDs were no longer parties to the case and that its

language was prejudicial to them.

16

See infra note 18.

17

The court also erred in rejecting much of the plaintiffs otherwise uncontroverted expert testimony regarding the

effect of defendants’ constitutional violations on the residential choices of blacks in the Kansas City metropolitan

area. Much of this testimony, given by Dr. James D. Anderson, a leading scholar and historian, was

uncontradicted and based on interpretation of public records. See supra note 9. This evidence was highly

probative, and it was wholly arbitrary for the court to reject it and inject its own inferences. Moreover, it is

especially crucial in a case of this nature to give great consideration to the testimony of historical experts where

the theory to be proved occurred long ago and few witnesses are alive to testify.

18

See, e.g., 1929 Report of Missouri State Superintendent of Public Schools at 122–23 (“high school opportunity for

[N]egro children is very limited” other than in St. Louis and Kansas City; “84 percent of all the high school

education in the state” for blacks is provided in these cities although “less than half the [N]egro population in the

state” lives there; in light of poor education for blacks in areas outside the cities, “the pronounced drift of the

[N]egro population away from the farm to the city is quite understandable”); 1924 Report at 197 (“[m]any [blacks

in rural areas] leave to seek better educational facilities for their children”).

19

The lead opinion’s implication that interdistrict relief here would trigger white ﬂight to Kansas, ante at 686, is

irrelevant in determining whether interdistrict relief is appropriate. See, e.g., United States v. Board of School

Comm’rs., 503 F.2d 68, 80 (7th Cir.1974) (Seventh Circuit reversed district court order for interdistrict relief, but

found prediction of “white ﬂight” an unacceptable reason for failing to desegregate schools).

20

As we observed in Little Rock, in Milliken it was proposed that the remedy include consolidation of one city district

with ﬁfty-three suburban districts in three counties where there was no evidence in the record indicating that the

ﬁfty-four districts were closely interrelated geographically, economically, politically or culturally as are the districts

in this case. Little Rock, 778 F.2d at 429.

21

Although for the reasons stated herein we stand in dissent, we nonetheless agree with Judge Ross’ statement as

to the likely effects of refusal by the Kansas City metropolitan school districts to participate now or in the future in

any cross-district programs.

 
 672 F.Supp. 400 United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI and Kansas City, Missouri School District, Defendants, (American Federation of Teachers, Intervenor).
No. 77–0420–CV–W–4. |
Sept. 15, 1987.
Synopsis On hearing on city school district’s motion for approval of its long-range capital improvement plan, the District Court, Russell G. Clark, J., held that: (1) long-range capital improvement plan aimed at eliminating substandard conditions present in schools was properly desegregation expense and was crucial to overall success of desegregation plan; (2) State’s plan was insufficient in that it would allow schools to continue to be unattractive and substandard and to serve as deterrent to parents considering enrolling their children in schools; (3) school district’s plan was necessary and reasonable; and (4) in order for school district to fund its obligation for desegregation program, surtax of 1.5% was added to state income tax for all persons and entities receiving income from work done, services rendered, and income received within school district and property tax levy within school district was also increased.
Ordered accordingly.
Attorneys and Law Firms
*402 Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., 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 Kansas City Missouri School Dist.
Bartow Farr, III, Onek, Klein & Farr, Washington, D.C., and Michael Fields, Asst. Atty. Gen., Jefferson City, Mo., for defendant State of Mo.
Michael Gordon, Kansas City, Mo., for intervenor American Federation of Teachers.
ORDER
RUSSELL G. CLARK, District Judge.
On August 3–6, and 10–12, 1987, this Court conducted a hearing on KCMSD’s motion for approval of its long-range capital improvement plan. After careful consideration, the Court approves the plan as modified in this order and orders funding of those projects scheduled for completion by the fall of 1990. The KCMSD also submitted for the Court’s approval a student transportation plan for the long-range magnet school plan in 1987–88. The State objects to the plan and suggests that a hearing on the plan may be required. The Court will defer ruling on the motion at this time and will give the parties an opportunity to confer in an attempt to reach an agreement on a plan and if necessary to engage in discovery. If a hearing is necessary, it is hereby set to commence on December 14, 1987 at 9:00 a.m. In addition, KCMSD had also moved the Court for funding of its projected operating and desegregation budget deficits through 1987–88. The Court will deny the specific relief requested by the KCMSD but will provide KCMSD with additional resources to fund the share of its known and projected costs of the desegregation plan through 1992. Finally, AFT 691’s motion for alternate funding relief regarding

KCMSD teacher salaries will be denied as a specific part of this remedial order as the Court is of the opinion that any salary increases should be left to the discretion of the school board.
Before addressing KCMSD’s request for the Court’s approval of its long-range capital improvement plan, a brief review of the capital improvements previously ordered by the Court is in order. In its original remedy order of June 14, 1985, the Court approved $37,000,000 to be applied toward the most critical capital improvement needs of the KCMSD and reserved judgment as to whether additional capital improvements would be needed. Jenkins v. State of Missouri, 639 F.Supp. 19, 41 (W.D.Mo.1985). On June 16, 1986, the Court authorized an additional $12,877,330 in capital improvement expenditures for the six schools that became magnets in 1986–87 under the desegregation plan. Jenkins, 639 F.Supp. at 53. At that time the Court also ordered the KCMSD to submit a long-range capital improvement plan by January 5, 1987. Id.
Next, the Court approved $52,858,301 for capital improvements to eleven KCMSD schools that are to become magnets in the fall of 1987 under the court-ordered long-range magnet school plan. Order of November *403 12, 1986 at p. 5. Most recently, the Court approved $7,376,135 for the purchase and renovation of the Jewish Community Center for use as a temporary performing arts middle school magnet in 1987–88. Order of April 29, 1987 at p. 3.
Turning to the matter presently before the Court, the KCMSD has submitted a $265,000,000 long-range capital improvement plan calling for the renovation and construction of approximately 72 schools and six other facilities through the fall of 1996. The Desegregation Monitoring Committee unanimously approved the plan on February 2, 1987. The plaintiffs and AFT 691 are generally in favor of KCMSD’s plan. On the contrary, the State strongly opposes the plan and has submitted an alternate proposal calling for approximately $61,000,000 in renovations to existing KCMSD schools.
The present conditions of the KCMSD schools have been improved by the $37,000,000 in capital improvements undertaken pursuant to the Court’s order of June 14, 1985 (testimony of Dr. R. Hunter, KCMSD Exh. 7). This work has primarily been on the exteriors of the school buildings and the surrounding playgrounds which has resulted in making them weatherproof and thus preventing further deterioration. The improved exterior appearance of these schools serves as an increased incentive for parents to enroll their children in the KCMSD. However, the overall condition of the KCMSD school buildings, particularly the interiors, is generally depressing and thus adversely affects the learning environment and continues to discourage parents who might otherwise enroll their children in the KCMSD (testimony of Dr. Hunter, C. Eppes, D. Osbourn, KCMSD Exh. 6).
The KCMSD facilities still have numerous health and safety hazards, educational environment hazards, functional impairments, and appearance impairments (testimony of Dr. Hunter, KCMSD Exh. 6). The specific problems include: inadequate lighting; peeling paint and crumbling plaster on ceilings, walls and corridors; loose tiles, torn floor coverings; odors resulting from unventilated restrooms with rotted, corroded toilet fixtures; noisy classrooms due to lack of adequate accoustical treatment; lack of off street parking and bus loading for parents, teachers and students; lack of appropriate space for many cafeterias, libraries, and classrooms; faulty and antiquated heating and electrical systems; damaged and inoperable lockers; and inadequate fire safety systems (testimony of Dr. Hunter, C. Eppes, D. Osbourn, C. DesMoineaux, KCMSD Exh. 6). The conditions at Paseo High School are such that even the principal stated that he would not send his own child to that facility (testimony of R. Meadows).
[1] Unquestionably, the deterioration of the KCMSD facilities is due to deferred maintenance by the KCMSD. However, as the Court found in its order of November 12, 1986, the State of Missouri by its constitutional violations and subsequent failure to affirmatively act to remove the vestiges of the dual school system certainly contributed to an atmosphere which prevented the KCMSD from raising the funds to maintain its schools. Order at p. 4. Furthermore, the Court has the responsibility of providing the victims of unlawful segregation with the educational facilities that they have been unconstitutionally denied. Therefore, a long-range capital improvement plan aimed at eliminating the substandard conditions present in KCMSD schools is properly a desegregation expense and is crucial to the overall success of the desegregation plan.
STATE’S CAPITAL IMPROVEMENT PROPOSAL
[2] The State of Missouri has submitted a capital improvement plan to remedy what it perceives as the substandard conditions present in the KCMSD (State Exh. 8). The scope of the work contained in the State’s plan is estimated to cost $61,074,565,

approximately $200,000,000 less than the estimated cost of KCMSD’s long-range capital improvement plan. For the following reasons, the Court finds that the State’s proposal is unsatisfactory because it fails to *404 remedy the substandard conditions in the KCMSD schools.
First, the State failed to consider the criteria of suburban comparability in evaluating the capital improvements to be made to the KCMSD schools. The Court in its order of June 14, 1985 specifically stated that capital improvements needed to bring KCMSD’s facilities to a point comparable with the facilities in the neighboring suburban districts should be reviewed. Notwithstanding, Dr. Robert Bartman, Acting Commissioner of Education for the State of Missouri, instructed its architect, David Pearce, to only estimate the capital improvements necessary to eliminate health and safety hazards and to provide a good learning environment. Mr. Pearce testified that he compiled his estimates before he visited any suburban schools.
Specifically, the State’s proposal does include funds for work needed on the electrical, mechanical, and ventilating systems to meet code requirements. However, the State’s proposal does not provide sufficient funds for the updating of those systems to insure that the equipment does not suffer frequent breakdowns (testimony of D. Osbourn, C. DesMoineaux). In addition, the State proposes to paint only those specific areas on walls and ceilings which are repaired (testimony of D. Pearce). With regard to floor coverings, the State proposes to replace only those tiles which are loose or damaged with a new tile of similar color and style. Likewise, only the sections of carpeting which are worn or torn would be replaced under the State’s plan. This “patch and repair” approach proposed by the State would not achieve suburban comparability or the visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint.
The Court also questions whether the State has budgeted sufficient funds to perform the limited scope of work that it proposes. For example, the State budgeted only $5,000 for plastering at Paseo High School, unquestionably one of KCMSD’s facilities most in need of renovation or reconstruction (testimony of Dr. Hunter, D. Pearce, D. Osbourn). KCMSD has budgeted approximately $211,000 for plastering and $230,000 for interior painting at the same institution.
Other deficiencies in the State’s proposal are a lack of funds for accoustical treatment in classrooms, or for floor covering on the bare concrete floors found in many restrooms. Such covering would eliminate one of the primary causes of the stench in these toilet areas (testimony of D. Osbourn). Furthermore, the State’s proposal only provides handicap access to one level of each KCMSD school, thereby restricting handicapped students’ access to many of the facilities and special programs offered by the KCMSD (testimony of C. Eppes). The State does not provide any funds for locker repair despite testimony by its own architect that many of the lockers are damaged, rusted, and missing doors. The State’s plan does not include funding to reconfigure spaces within the KCMSD schools to provide adequate classrooms, library, cafeteria, and administrative areas.
The Court also notes that the State failed to estimate the cost necessary to provide magnet facilities needed to implement the long-range magnet school plan approved by the Court on November 12, 1986. The State argues that the broad contours of the magnet relief ordered are uncertain at best and suggests that the Court “reserve judgment on magnet related projects to a time when the scope of the magnet relief is more certain.” State’s Alternative Proposals Concerning Remaining Capital Improvements Funding for KCMSD, 6/3/87 pp. 29–30. The Court is certainly not surprised by the State’s “wait and see” position but finds that such an approach would seriously damage the prospects of true desegregation in the KCMSD. The magnet plan is working as evidenced by the large number of applications for the magnet programs from students new to the KCMSD, and this Court is committed to its full implementation and will order the construction of the magnet facilities as part of the long-range capital improvement plan.
*405 In conclusion, if the KCMSD schools underwent the limited renovation proposed by the State, the schools would continue to be unattractive and substandard, and would certainly serve as a deterrent to parents considering enrolling their children in KCMSD schools. Therefore, the Court rejects the State’s plan and will next consider the long-range plan submitted by the KCMSD.
KCMSD’S LONG–RANGE CAPITAL IMPROVEMENT PLAN
The KCMSD has submitted for the Court’s approval a long-range capital improvement plan which calls for the renovation of approximately 55 schools, the closure of 18 facilities, and the construction of 17 new schools by the fall of 1996. However, the KCMSD is presently seeking funding for only that portion of the plan which is scheduled for completion by the fall of 1990. KCMSD estimates the cost of these renovations and new facilities at $194,328,578.

[3] The KCMSD employed three architectural firms to review all its school facilities and determine what work was necessary to renovate the buildings. These architects applied the criteria set forth by the Court in estimating the scope of the work required to remedy the deteriorating conditions that exist in the KCMSD as a result of unlawful segregation. The result of their evaluations are contained in the 1985 capital improvement study (KCMSD Exh. 23). These architects have amended these estimates to reflect work which has been completed, or will be completed pursuant to previous court orders and to reflect inflation (KCMSD Exhs. 13, 14, 15 and 18). These renovations will eliminate the existing health and safety hazards identified by the Court and will correct the conditions which impede the level of comfort needed for the creation of a good learning environment. Equally important, these renovations proposed by the KCMSD, unlike those contained in the State’s plan, will make the KCMSD visually attractive and reasonably comparable to the suburban Kansas City, Missouri schools (testimony of Dr. Hunter, D. Osbourn, C. Eppes). The remedy proposed by the KCMSD is not a “patch and repair” approach, but rather a comprehensive plan to restore KCMSD school facilities to an environment in which children can learn. The Court finds that the capital improvements proposed by the KCMSD to eliminate health and safety hazards and to improve the visual attractiveness and comfort level of the KCMSD schools are necessary and that their costs are reasonable.
The remaining portions of KCMSD’s long-range capital improvement plan primarily consist of the expansion of existing facilities and the construction of new facilities. Before addressing these specific proposals, the Court must first review the enrollment projections on which KCMSD’s long-range capital improvement plan is based.
[4] The Court acknowledges that it is very difficult to predict what the enrollment will be in the KCMSD over the next ten years. Student enrollment in the KCMSD declined from 70,756 students in 1970–71 to 39,078 students in 1980–81 (KCMSD Exh. 19). Enrollment has continued to decline since 1980–81 but at a lesser rate with signs of a leveling off. If approved, the KCMSD long-range capital improvement plan will produce capacity for 44,890 by 1995, with a capacity of 22,183 in the elementary schools, 10,499 in the middle schools, and 12,210 in the high schools (testimony of Dr. Hunter, KCMSD Exhs. 13, 14 and 15). This plan provides capacity for an enrollment greater than the enrollments projected by the State of Missouri and the KCMSD using the cohort survival method which is based on the presumption that past enrollment trends will continue (State Exh. 19, KCMSD Exh. 24 at Tab A, Appendix 1, Table 26). However, the Court finds that the long-range capital improvement plan should not be based upon this presumption because it is very likely that enrollment in the KCMSD will increase due to the court-ordered upgrading of the regular school curriculum, the implementation of the long-range magnet school plan, and the improvements in capital facilities which *406 have been completed and which will be made as a result of this order.
Because of the inadequacy of the cohort survival enrollment projection, Dr. Hunter, the educational expert who developed the long-range capital improvement plan, requested the Mid-America Regional Council to estimate the future enrollment of the KCMSD using a “capture rate” analysis. The capture rate is simply the percentage of students who live in the KCMSD who actually attend KCMSD schools. The study concluded that if the capture rate attained by the KCMSD in 1970 were reachieved in 1995, the student population would total 47,898 (testimony of Dr. Hunter, KCMSD Exh. 24 at Tab A, KCMSD Exh. 19). The Court finds that this estimate is more accurate than that calculated using the cohort survival method and yet KCMSD’s plan is conservative because it does not provide for all the capacity necessary to accommodate a 1995 enrollment based on the 1970 capture rate. Therefore, the Court finds that KCMSD’s long-range capital improvement plan is based upon appropriate enrollment projections and will now address the expansions and new construction proposed in the plan.
[5] KCMSD’s proposal provides funds for the expansion of certain classrooms, learning resource centers, cafeterias, art and music rooms, and administrative areas. Dr. Hunter testified that these facilities were deficient in size and prepared specifications for standard facilities needed to house adequate educational programs (KCMSD Exhs. 2, 3 and 4). His recommendations are comparable to those made by the Missouri State Department of Elementary and Secondary Education (KCMSD Exh. 11). Furthermore, Dr. Hunter’s recommendations were made only after he had visited each of the KCMSD schools and eleven of the suburban schools (testimony of Dr. Hunter). The Court finds that the expansion of these facilities is necessary to provide a good learning environment and that the costs of such expenditures are reasonable.
[6] KCMSD’s proposal also includes funding for the construction of specialized facilities needed for implementation of the long-range magnet school plan approved by the Court. Phale Hale, a magnet school expert who coauthored the long-range magnet school plan approved by the Court, developed the facilities requirements for the long-range magnet school plan (KCMSD Exh. 5). These improvements are in addition to the approximately $53,000,000 in capital improvements approved by the Court for the schools scheduled to become magnets in 1987. The magnet school plan is crucial to the success of the Court’s total desegregation plan and the KCMSD cannot effectively implement the magnet programs without special

facilities. The question before the Court is whether the improvements proposed are necessary to carry out the magnet programs approved by the Court.
One example is the Kansas City Technical Center, a four year vocational and technical magnet high school which is designed to prepare students upon graduation to either enter college, obtain entry level employment, or both. This magnet will offer programs ranging from heating and air conditioning to cosmetology to robotics. Consequently, these programs require special equipment and spacious work areas in which to instruct the students. The estimated cost for Kansas City Tech is $13,278,603, which also includes funds for an expanded cafeteria, athletic facilities, and other facilities essential for the operation of a regular high school. The Court finds that all of the facilities proposed for the Kansas City Technical Center and all the special facilities requested for the other magnet programs are necessary to implement the long-range plan and that the estimated costs of these additional facilities are reasonable.
The long-range capital improvement plan also calls for the closure of eighteen KCMSD school facilities, 15 of which are currently operating as schools, and the construction of seventeen new schools, the last of which is a new middle school III scheduled for completion by the fall of 1993. The criteria used by the KCMSD to determine whether to renovate a school or build *407 a new facility was that buildings with renovation costs of $45 per square foot or more should be replaced (testimony of Dr. Hunter). The estimated cost of construction of the new schools ranges from $61.80 per square foot for middle schools I and III to $95.70 per square foot for the new Attucks Elementary School. Both the architects for the KCMSD and the State of Missouri stated that buildings with renovation costs of more than 50% of the cost of new construction are candidates for replacement (testimony of D. Osbourn, D. Pearce).
The most expensive of the proposed new constructions is Paseo High School at an estimated cost of $13,991,375, excluding architectural fees and inflation (KCMSD Exh. 15). The renovation of the existing facility which includes the addition of special magnet facilities would cost an estimated $8,033,100 (KCMSD Exh. 15). The Court finds that it would be imprudent to renovate Paseo High School rather than build a new facility because both the architects for the KCMSD and the State stated that Paseo High School is near the end of its useful life (testimony of D. Osbourn, D. Pearce). In addition, it is essential to the success of the magnet school plan that Paseo High School be one of the most attractive magnet programs because it is located in an area which is considered difficult to desegregate (testimony of Dr. Hunter). Therefore, the Court approves the construction of a new Paseo High School and the sixteen other new facilities proposed in the long-range capital improvement plan. However, the Court approves funding of only those facilities scheduled for completion by the fall of 1990, and reserves final judgment on the remaining schools until a time when more current enrollment figures are available.
The Court also approves the closure of Attucks, Faxon, Gladstone, Greenwood, Holmes, Knots, Kumpf, Manchester, Pershing, Pitcher, Switser, Thatcher, Willard, Woodland, Linwood West, and Norman Elementary Schools. The Court will not establish closing dates at this time so that these schools may be used to house students while other facilities are being renovated or constructed under the long-range capital improvement plan.
[7] KCMSD’s plan also requests funding for the renovation of East Stadium, Southeast High Stadium and Arena, the Norman Administrative Center, Linwood, and Linwood West. The Court finds that these additional facilities are in need of renovation but finds that the 8% amount allotted for architectural and engineering fees, which is included in the total cost of their renovation, is excessive. The State’s expert David Pearce testified that 6% is a customary architectural fee in school capital improvement projects. Therefore, the Court approves these renovations but in a lesser amount to reflect architectural fees of 6%. Similarly, the Court will only approve a 6% architectural fee for all the other renovations and new constructions approved by the Court as part of the long-range capital improvement plan.
In addition, the KCMSD did not present any evidence regarding its request for a furniture budget for schools to be renovated under the plan and for schools previously renovated. The Court simply cannot consider such requests without knowing the quantity and quality of the furniture that is presently available in the KCMSD.
The KCMSD has adjusted the estimated costs of its long-range capital improvement plan by 5% a year to reflect inflation. The Court finds that this percentage is reasonable and will apply it to the estimated costs of the plan as modified by this Court.
[8] Finally, the KCMSD has also requested funding for a project management team which would oversee the implementation of the long-range capital improvement plan. The team, a joint venture of J.E. Dunn Construction Company and the Allied Companies, would utilize the architects, engineers and other specialists from these four firms in acting as KCMSD’s agent in

supervising the architects and contractors who are hired to perform the renovations and new construction set forth in the plan. In addition, the project management team will provide other professional services including project scheduling, cost control, quality control, and site selection (testimony *408 of Robert Barrett, KCMSD Exh. 22). The KCMSD has negotiated a contract, pending this Court’s approval, with this project management team which provides that the team will receive compensation of $12,750,000 or 4% of the total capital improvements program expenditures for phases IV through VIII of the capital improvements program, whichever is less (KCMSD Exh. 22).
The Court finds that it is not feasible for the KCMSD to manage internally a program of the magnitude of the proposed longrange capital improvement plan. It is essential that the renovations and construction are completed on schedule and at costs within the budget approved by the Court. The Court finds that the project management team is necessary to effectively implement the plan and the Court is confident that the team will effect cost savings considerably more than the cost of the project management team. Accordingly, the Court approves the contract entered into between the KCMSD and the project management team (KCMSD Exh. 22) but approves the budget for the supervision and planning for only the first three years of the long-range capital improvement plan.
For the reasons set forth, the Court approves KCMSD’s long-range capital improvement plan as modified in this order and orders the funding of those projects scheduled for completion by the fall of 1990 in accordance with Attachment A.
The plan approved by the Court does not include costs of acquiring or preparing sites for the new facilities. In addition, the Court acknowledges that the KCMSD will incur additional costs in relocating students while the approved capital improvements are completed. Accordingly, KCMSD is directed to submit these costs to the Court for approval and funding as soon as they become known.
[9] The total amount of funding approved by the Court for those projects scheduled for completion by the fall of 1990 is $187,450,334. The State of Missouri and the KCMSD are jointly and severally liable for this amount with contribution between the two constitutional violators to be $93,725,167 each.
These capital improvements will have a service life of at least 30 to 50 years and the KCMSD will continue to benefit from them long after the hopeful success of the desegregation plan has been realized. For this reason the Court departs from the 3 to 1 apportionment generally set forth in previous remedial orders.
KCMSD’S 1987–88 MAGNET SCHOOL TRANSPORTATION PLAN
Also before the Court is KCMSD’s motion for approval and funding of the 1987–88 incremental transportation costs attributable to the long-range magnet school plan ordered by the Court. KCMSD states that in 1986–87 it expended $1.4 Million to transport students to the three magnet programs at the Lincoln College Preparatory, the Southwest Cluster, and the Westport Community Applied Learning Magnet. KCMSD projects that the implementation of the 13 new magnet programs in 1987–88 will increase the total transportation costs for the magnet schools to $4,490,836. However, approximately $2.2 Million of this amount represents the cost that would have been incurred in operating traditional transportation routes at these schools even if there had been no magnet school program. Thus, KCMSD requests the Court to order the State to pay 75% of the remaining $2,294,075 cost of transportation required by the magnet program.
In response, the State requests that the plan be denied in its entirety or in the alternative that a hearing should be held at a future date to allow adequate discovery as to how and by whom the plan was developed and whether it is adequate and cost effective. As stated earlier, the parties should confer and see if they can reach an agreement on a plan. If needed, the parties may engage in discovery and if necessary a hearing will be held during the week of December 14, 1987. The KCMSD may implement the plan if it desires with the understanding that the Court has not approved the plan or ordered the State to fund any portion of the plan over and *409 above the regular State aid under the standard formula.
KCMSD’S MOTION FOR FUNDING RELIEF
In its order of July 6, 1987, the Court deferred ruling on KCMSD’s motion for funding relief until after the Court had ruled

on the long-range capital improvement plan. The Court did so because it wanted an accurate estimate of not only KCMSD’s deficit through fiscal year 1987–88, but also KCMSD’s financial obligations under the overall desegregation plan through 1991–92.
Before setting forth the financial obligations of the KCMSD under the remedial plan, the Court must correct its order of July 6, 1987 which approved the year 3 desegregation budget. The Court, pursuant to the request of the KCMSD, included the 1987–88 implementation cost of the long-range magnet school plan in the 1987–88 desegregation budget. The total implementation cost for the 1987–88 magnets is $17,137,993, of which $13,946,729 was previously approved by the Court in its order of November 12, 1986. In that previous order, the Court found the State of Missouri and the KCMSD jointly and severally liable for $8,908,406 of this amount, with the State solely liable for $5,038,323. This apportionment of liability for the $13,946,729 remains unchanged as will the Court’s apportionment for the remaining implementation costs approved in the November 12, 1986 order. While the Court’s apportionment for the KCMSD is more than 25% in year 1987–88 under the November 12, 1986 order, the percentage of liability for the implementation costs decreases to approximately 13% in 1991– 92 under the plan. The KCMSD’s total portion of the implementation costs and capital expenditures for the long-range magnet school plan approved in the November 12, 1986 order is approximately 25%, and thus is consistent with the Court’s previous orders.
Therefore, in determining KCMSD’s contribution to the year 3 desegregation budget, the Court mistakenly applied 25% to the entire 1987–88 implementation cost of the long-range magnets when the liability for $13,946,729 of that amount had already been apportioned. The 25% should only have been applied to the $3,191,264 in additional magnet base costs that the Court approved in its July 6, 1987 order. Therefore, the Court corrects page 12 of the order to reflect the following apportionment:
1987-88 Desegregation Budget
----------------------------

KCMSD’S -------

State’s -------

Public Information

Total ----30,000.00

Contribution

Contribution

------------

------------

7,500.00

22,500.00

Total

Contribution

Contribution

-----

------------

------------

Public Information

30,000.00

7,500.00

22,500.00

Desegregation

-0-

Monitoring Ofﬁce

Program Evaluation

-0-

Desegregation Monitoring Committee

256,228.00

64,057.00

192,171.00

Effective Schools

6,555,000.00

1,638,750.00

4,916,250.00

Reduction in Class Sizes Total

8,450,135.00

2,112,534.00

6,337,601.00

Summer School

1,295,764.00

323,941.00

971,823.00

Full Day Kindergarten

1,826,964.00

456,741.00

1,370,223.00

Before and After School Tutoring

233,759.00

58,440.00

175,319.00

Early Childhood Education

3,102,178.00

775,545.00

2,326,633.00

Long-Range Magnet School Plans

17,137,993.00

5,252,019.00

11,885,974.00

Before and After School Tutoring

233,759.00

58,440.00

175,319.00

Early Childhood Education

3,102,178.00

775,545.00

2,326,633.00

Long-Range Magnet School Plans

17,137,993.00

5,252,019.00

11,885,974.00

1986-87 Magnets

12,257,529.00

3,064,383.00

9,193,147.00

AAA Achievement

6,340,614.00

1,585,154.00

4,755,460.00

SWAS, DRP and STEPS

-0-

Facilities Improvements (interest)

353,061.00

88,265.00

264,796.00

Totals

57,839,225.00

15,427,329.00

42,411,897.00

*410 In calculating the financial obligations of the KCMSD under the Court’s overall plan for which the district lacks funding, the Court finds that the KCMSD suffered a deficit of $1,092,365 in 1986–87 in implementing the long-range magnet school plan based on its obligation of $4,158,136 and expenditures of $3,065,771. In addition, the Court approved a total of $60,234,436 in capital improvements for the long-range magnet plan in its orders of November 12, 1986 and April 29, 1987, with KCMSD’s share set at $30,117,218. KCMSD has currently expended $3,027,413 for these improvements in 1986–87 but is without revenues to fund the balance of its share of these capital improvements, or $27,089,805.
For fiscal year 1987–88, KCMSD projects an operating budget of $121,342,253 and total revenues of $110,558,418, creating a deficit of $10,783,835. Included in the operating budget is approximately $7.15 Million for additional teachers and for salary increases for present teachers, $2,240,000 for facilities maintenance, and $869,189 for special education students. The AFT 691 has moved the Court to order a teacher’s salary schedule larger than that included in the KCMSD 1987–88 operating budget.
[10] The Court finds that the KCMSD has an obligation not only to eliminate the effects of unlawful segregation but also to insure that there is no diminution in the quality of its regular academic program. Bradley v. Milliken, 540 F.2d 229, 245 (6th Cir.1976), aff’d, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), citing Hart v. Community School of Brooklyn, 383 F.Supp. 699, 741 (E.D.N.Y.1974), aff’d, 512 F.2d 37 (2d Cir.1975). Therefore, it is essential that the KCMSD have sufficient

revenues to fund an operating budget which can provide quality education, including a high quality faculty. The Court is quite aware that the KCMSD’s teacher salary position, in comparison with the surrounding school districts, has deteriorated significantly because of KCMSD’s failure to obtain passage of a tax levy to fund teacher salary raises. Consequently, KCMSD’s ability to attract new teachers and retain present teachers has been restricted. While the revised salary schedule proposed by the KCMSD would not equal those in suburban districts, it will certainly make the KCMSD more attractive to new teachers and more pleasing to its present teachers. As stated at the beginning of the order, the Court will not order either of the salary proposals submitted by the KCMSD and AFT 691 because this decision properly lies within the discretion of the school board. However, the Court will provide KCMSD with revenues of $7.147 Million per fiscal year through 1991–92 to fund teacher salary increases, and revenues of $3,109,189 per year to fund the costs of facilities maintenance and special education students.
The KCMSD is also without resources to finance its portion of the 1987–88 desegregation budget, $15,427,329, which includes the 1987–88 implementation cost of the long-range magnet school plan. In addition, the KCMSD is without the funds to pay its proposed share of the 1987–88 transportation costs of the magnet plan, estimated by it to be $573,518. KCMSD is also obligated in 1987–88 to fund $6,069,801 in capital improvements pursuant to the long-range capital improvement plan approved by the Court. Finally, the Court estimates that site selection and student relocation costs associated with the long-range capital improvement plan will be approximately $4 Million per year, with KCMSD’s portion to be $2 Million per year (affidavit of Roger Gaunt). In summation, the KCMSD has financial obligations under the Court’s overall desegregation plan for 1986–87 and 1987–88 of $62,509,653 for which it lacks resources to fund.
In fiscal year 1988–89, the KCMSD is obligated to fund an estimated $4,454,203 for implementation of the long-range magnet school plan and $27,399,873 in capital improvements pursuant to the long-range capital improvement plan. The Court projects that KCMSD’s portion of the magnet school transportation costs for each of the next four fiscal years will be $573,518. The Court also projects that the KCMSD will have an operating budget deficit of $10,256,835 for fiscal years 1988–89 through 1991–92 due to expenditures needed for teacher salary increases, facilities *411 maintenance, and special education students. In addition, the Court estimates that the 1988–89, 1989–90, 1990–91, and 1991–92 desegregation budgets at approximately $44,000,000 per fiscal year, excluding the long-range magnet costs approved by the Court in its November 12, 1986 order, because of the continuing cost of the remedial programs previously ordered by the Court. Therefore, the Court finds that the KCMSD will experience a deficit of approximately $11,000,000, or 25% of the desegregation budget, in each of those fiscal years. In summation, the Court projects a total deficit of $53,684,429 for the KCMSD for 1988–89.
Similarly in 1989–90, the Court projects that the KCMSD will experience a deficit of $5,027,721 in long-range magnet costs, $63,555,647 in capital improvement costs, $10,256,835 in operating budget, and $11,000,000 in desegregation budget, totaling $89,840,203. Using the same method of calculation, the projected deficits for years 1990–91, and 1991–92 are $42,543,837 and $33,823,793 respectively, bringing the total deficit to $282,401,915. A summary of the KCMSD’s known and projected obligations through 1991–92 under the Court’s desegregation plan is set forth in Attachment B.
In its motion for funding relief, the KCMSD requested the Court to enjoin the rollback in the real estate tax levy otherwise required under Proposition C (R.S.Mo. §§ 163.050 and 164.013). The KCMSD also requested the Court to order the State of Missouri to advance to it funds for its desegregation and operating expenses that it is unable to fund. The KCMSD would then repay the State when resources were available.
The Court will not require the State of Missouri to fund any of KCMSD’s financial obligations under the court-ordered desegregation programs. However, the United States Court of Appeals for the Eighth Circuit stated clearly that the desegregation remedy ordered by this Court shall be fully funded. Jenkins v. State of Missouri, 807 F.2d 657, 686 (8th Cir. 1986), and has discussed in detail the procedure the district court is to follow in achieving this goal. Liddell v. State of Missouri, 731 F.2d 1294, 1319–23 (8th Cir.1984).
The record clearly shows that the KCMSD is unable with its present resources to raise revenues to fund its share of the costs assessed under the desegregation orders. The KCMSD has exhausted all available means of raising additional revenue, including presenting a bond issue in 1987 and tax levy increase proposals to the voters in four separate elections in 1986 and 1987. The KCMSD has not had a bond passage or a levy increase since 1969. As a result, its physical facilities have literally rotted.
Because of KCMSD’s inability to raise additional funds under the present system, the Court encouraged the Missouri General Assembly to “explore the possibility of enacting legislation that would permit a district involved in a desegregation plan more versatility than it presently has to raise funds with which to support the program.” November 12, 1986 Order at p. 7. Such

legislation was introduced but was received unfavorably and ultimately failed. In addition, the State of Missouri and the KCMSD have been unable to agree on an alternate method of raising KCMSD’s share of the desegregation costs. Therefore, the Court has explored all the alternatives set forth by the Eighth Circuit and is left with no choice but to exercise its broad equitable powers and enter a judgment that will enable the KCMSD to raise its share of the cost of the plan and therefore insure that the constitutional violations committed by the KCMSD and the State of Missouri are cured.
The United States Court of Appeals for the Eighth Circuit has stated that such relief may only be granted after the Court has conducted an evidentiary hearing. Liddell v. State of Missouri, 731 F.2d 1294, 1323 (8th Cir.1984). However, the plaintiffs, the KCMSD, and the State of Missouri have stated that they do not request an evidentiary hearing on this issue, and consent to the Court’s entry of a judgment based on the record developed in this case.
[11] A district court’s broad equitable power to remedy the evils of segregation *412 includes the power to order tax increases and bond issuances. Liddell v. State of Missouri, 731 F.2d at 1322. The United States Supreme Court has stated that a tax may be increased if “necessary to raise funds adequate to ... operate and maintain without racial discrimination a public school system.” Griffin v. School Board of Prince Edward County, 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964).
A studied estimate of the additional revenues needed by the KCMSD to meet its share of the desegregation costs during the next five years reveals the sum of approximately $150,000,000 for capital improvements and $135,000,000 for other desegregation costs.
In its order of June 14, 1985, this Court stated that it was reluctant to take any action to increase taxes. The Court now affirms the statement made in its order of August 25, 1986 that it is not insensitive to the fact that those patrons of the KCMSD who voted in previous elections have refused to approve a tax levy increase and a bond issue. However, a majority has no right to deny others the constitutional guarantees to which they are entitled. This Court, having found that vestiges of unconstitutional discrimination still exist in the KCMSD, is not so callous as to accept the proposition that it is helpless to enforce a remedy to correct the past violations. Failure of the KCMSD to come forward with its share of funds to implement the remedial plan would certainly operate to hinder vindication of federal constitutional guarantees to which the school children in the KCMSD are entitled. This Court cannot shrink its sworn duty to uphold the Constitution of the United States (p. 4). The Court must weigh the constitutional rights of the taxpayers against the constitutional rights of plaintiff students in this case. The Court is of the opinion that the balance is clearly in favor of the students who are helpless without the aid of this Court.
[12] The Court is of the firm conclusion that it has no alternative but to impose tax measures which will enable KCMSD to meet its share of the cost of the desegregation plan. At the Court’s request the parties have submitted estimates on revenues which would be generated through various tax measures.
The plaintiffs have moved the Court to require KCMSD to issue $144,175,000 in general obligation bonds, to add a $1.73 property tax levy in the KCMSD, and to impose a ½% sales tax effective January 1, 1989 within the KCMSD to permit KCMSD to fund its share of the costs of the desegregation orders.
During the hearing on the liability issue in this case there was an abundance of evidence that many residents of the KCMSD left the district and moved to the suburbs because of the district’s efforts to integrate its schools but continue to be employed in the district. After careful consideration, the Court has determined that it would be equitable to involve these people in a plan to help defray the district’s desegregation expense.
The Court will impose a 1.5% increase as a surcharge on the Missouri State Income Tax (raising the present rate on individuals from 6% to 7.5%) on residents and nonresidents of the KCMSD, including business associations, partnerships and corporations who earn salaries, wages, commissions and all other compensation and income subject to the Missouri State Income Tax for work done, services rendered and business or other activities conducted within the KCMSD. This surcharge shall become effective for all income earned after September 25, 1987. All employers and persons presently legally responsible for withholding the Missouri State Income Tax shall have the same responsibility for withholding the 1.5% increase. The State through its Department of Revenue shall collect the increased tax and remit it to the KCMSD within thirty days after its receipt of same. KCMSD shall promptly prepare and publish a legal notice of this income tax increase (surcharge) giving notice to all employers within the district and to all persons and entities who receive an income for activities performed within the district.
*413 Revenue generated by the income tax surcharge shall be used to retire capital improvement bonds which are herein

authorized. It is anticipated that the surcharge will create sufficient revenue for the KCMSD to meet its portion of the cost of the capital improvement plan. The surcharge shall remain in effect until such time as the bonds are retired or until other provisions are adopted to insure their retirement. The KCMSD presently has a tax levy of $2.05 per $100.00 assessed valuation. This is much less than the tax levy of any neighboring school district. In order to fund the other desegregation costs other than capital improvements for which it is obligated the district needs approximately $27,000,000 additional per year through the 1991–92 school year. A property tax increase of $1.95 per $100 assessed valuation would generate about $27,000,000 annually. Therefore the Court will order the property tax levy to be increased to $4.00 per $100 assessed valuation through the 1991–92 fiscal year. The KCMSD is directed to issue capital improvement bonds in the total amount of $150,000,000 to be retired within 20 years from the date of issue. The board is authorized to issue credit enhanced leasehold revenue bonds and general obligation bonds in such proportion as the school board, in its discretion, determines to be most advantageous to the district. In accordance with the foregoing memorandum, it is ORDERED that the motion of the KCMSD for the approval of its capital improvement plan is approved as modified herein; and it is further ORDERED that the motion of the KCMSD for approval of its student transportation plan for the long-range magnet school plan is deferred and if a hearing is necessary on the plan it is set to commence on Monday, December 14, 1987 at 9:00 a.m.; and it is further ORDERED that the motion of AFT 691 for alternate funding relief regarding the salaries of the KCMSD teachers is denied; and it is further ORDERED that the motion of KCMSD for funding relief is granted in part in that it is ordered that in order to fund the obligation of the KCMSD for the desegregation program, a surtax of 1.5% is added to the Missouri State Income Tax for all persons and entities receiving income for work done, services rendered, and income received from activities within the KCMSD and the tax levy for the KCMSD is raised to $4.00 per $100 assessed valuation; and it is further ORDERED that said increased revenue shall be applied to satisfy the obligations of the KCMSD as set forth in this memorandum.
ATTACHMENT A
------------
Long-Range Capital Improvement Plan Funding Order (1987-90)
-----------------------------------------------------------

Construction Phase (Date of Completion) -------------------Phase V

Work Required --------

Cost ----

Southeast Annex (Fall, 1988) R

Longfellow (Fall, 1988)

MI

Melcher (Fall, 1988)

MI

Meservey (Fall, 1988)

MI

N. Rock Creek/Korte

MI

(Fall, 1988)

Phillips (Fall, 1988)

MI

Southwest Senior High (Fall, MI-R

1989)

New Faxon Elementary (Fall, NC

1989)

$ 888,087 352,110
1,393,680 395,600
1,751,403 154,011 445,200
8,882,817
3,946,460

Southwest Senior High (Fall, MI-R 1989) New Faxon Elementary (Fall, NC 1989)

Phase VI

New Knotts Elementary (Fall, NC

1989)

New Attucks Elementary (Fall, NC

1989)

King Middle (Fall, 1989)

MI-R

New Pitcher Elementary (Fall, NC

1988

New Northeast Elementary

NC

(Fall,

1989)

New Southeast I Elementary NC

(Fall, 1989)

Nowlin Middle (Fall, 1989)

MI

8,882,817 3,946,460
4,020,620 4,031,300
828,639 5,527,010 4,580,000 5,621,000 2,484,290

1989)

New Southeast I Elementary NC

(Fall, 1989)

Nowlin Middle (Fall, 1989)

MI

Three Trails (Fall, 1989)

MI

K.C. Tech (Fall, 1990)

MI-R

Troost (Fall, 1989)

MI-R

Wheatley (Fall, 1989)

MI

Middle School I (Spring, 1990)

Garﬁeld (Fall, 1989)

MI-R

Weeks (Fall, 1989)

MI-R

Phase VII

New Southeast II Elementary NC (Fall, 1990) New Southeast III Elementary NC (Fall, 1990)

5,621,000
2,484,290 1,119,773 13,278,603 2,283,073 1,265,154 6,705,000 3,899,110
645,300
4,545,000
5,530,500

(Fall, 1990)

New Southeast III Elementary NC

(Fall, 1990)

New Elementary I (Fall, 1990) NC

New Elementary II (Fall, 1990) NC

New Elementary III (Fall, 1990) NC

East High (Fall, 1990)

MI-R

Northeast Middle (Fall, 1990) MI-R

Richardson (Fall, 1990)

MI-R

Southeast High (Fall, 1990)

MI-R

Van Horn High (Fall, 1990)

MI-R

Westport Middle (Fall, 1990) MI-R

Westport High (Fall, 1990)

MI-R

Meservey (Fall, 1990)

R

Phase VII (other facilities)

East Stadium (Fall, 1990)

R

Southeast High -- Stadium and R

5,530,500
4,427,000 3,870,000 3,870,000 6,706,704 6,899,162 1,250,645 6,128,250 5,868,580 4,766,303 6,759,951
732,103
401,020 438,320

East Stadium (Fall, 1990)

R

Southeast High -- Stadium and R

Arena (Fall, 1990)

Linwood (Fall, 1990)

R

Linwood West (Ofﬁce Space) R

(Fall, 1990)

Norman Administrative Center R

(Fall, 1990)

401,020 438,320
792,984 970,122
3,062,057
--------$155,468,316 Total Cost
9,328,098 Architect Fees 21,254,230 Inﬂation
1,399,690 Construction ------------ Planning
1987-90 $187,450,334 Total Projected
Cost

Key: R - Renovation MI - Magnet Improvement NC - New Construction

------------ Planning 1987-90
$187,450,334 Total Projected Cost

ATTACHMENT B

CAPITAL IMPROVEMENTS Projected Costs of Site Selection Student Relocation

1986-88

1988-89

1989-90

1990-91

1991-92

-------

-------

-------

-------

-------

TOTAL 1986-92
-------

33,159,60 6

25,399,8 73

61,555,6 47

14,259,2 81

5,539,23 7

139,913,64 4

IMPROVEMENTS Projected Costs of Site Selection Student Relocation associated with the Long-Range Capital Plan Subtotal

33,159,60 6

25,399,8 73

61,555,6 47

14,259,2 81

5,539,23 7

139,913,64 4

2,000,000

2,000,00 0

2,000,00 0

2,000,00 0

2,000,00 0

10,000,000

35,159,60 6

27,399,8 73

63,555,6 47

16,259,2 81

7,539,23 7

149,913,64 4

DESEGREGATION

EXPENSES

Desegregation Budget

Deﬁcit

16,519,69 4

11,000,0 00

11,000,0 00

11,000,0 00

11,000,0 00

60,519,694

Projected Magnet

Transportation Costs

573,518

573,518

573,518

573,518

573,518

2,867,590

Magnet

Implementation Costs

included in

4,454,20 3

4,454,20 3

4,454,20 3

4,454,20 3

17,816,812

Transportation Costs

573,518

573,518

573,518

573,518

573,518

2,867,590

Magnet

Implementation Costs

included in

4,454,20 3

4,454,20 3

4,454,20 3

4,454,20 3

17,816,812

Subtotal

Deseg. Bud. Deﬁcit

-------------------

17,093,212 16,027,721 16,027,721 16,027,721 16,027,721

81,204,096

OPERATING BUDGET

DEFICIT

Teacher Salary

Package

7,147,646

7,147,646

7,147,646

7,147,646

7,147,646

35,738,230

Maintenance

2,240,000

2,240,000

2,240,000

2,240,000

2,240,000

11,200,000

special Education

Students

869,189

869,189

869,189

869,189

869,189

4,345,945

-------

-------

-------

-------

-------

--------

Subtotal

10,256,835 10,256,835 10,256,835 10,256,835 10,256,835

51,284,175

---------

---------

---------

---------

---------

--------

TOTAL

62,509,653 53,684,429 89,840,203 42,543,837 33,823,793 282,401,915

All Citations 672 F.Supp. 400, 42 Ed. Law Rep. 1130

 
 838 F.2d 260 United States Court of Appeals,
Eighth Circuit.
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, 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; and American Federation of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Members of the Missouri State Board of Education, Arthur L. Mallory, Commissioner of Education of the State
of Missouri, Appellees, and
School District of Kansas City, Missouri, Appellant, and Claude C. Perkins, Superintendent thereof.
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, 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; Appellees, and American Federation of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Members of the Missouri State Board of Education, Arthur L. Mallory, Commissioner of Education of the State
of Missouri, Appellants, and
School District of Kansas City, Missouri, and Claude C. Perkins, Superintendent thereof, Appellee. 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, 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; Appellants, and American Federation of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Members of the Missouri State Board of Education, Arthur L. Mallory, Commissioner of Education of the State
of Missouri, Appellees, and
School District of Kansas City, Missouri, and Claude C. Perkins, Superintendent thereof.
Nos. 87–2075, 87–2076 and 87–2077. |
Submitted Oct. 13, 1987. |
Decided Jan. 29, 1988. |
Rehearing and Rehearing En Banc Denied in No. 87–2076 April 13, 1988. |

Rehearing and Rehearing En Banc Denied Nov. 9, 1989.
Synopsis Prevailing plaintiffs in school desegregation case sought recovery of attorney fees. The United States District Court for the Western District of Missouri, Russell G. Clark, J., awarded attorney fees. Appeal was taken. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) it was not clearly erroneous to reduce hours requested by only 15 percent to reflect partial success; (2) District Court could consider delay in payment as a factor in setting hourly rates; and (3) defendant school district was not entitled to recover attorney fees.
Affirmed.
Attorneys and Law Firms
*262 Jay Topkis, New York City, Russell E. Lovell, II, Associate Dean, Drake University Law School, Des Moines, Ia. for Jenkins.
Patricia Brannan, Washington, D.C. for Kansas City School District.
Bruce Farmer, Jefferson City, Mo., for State of Missouri.
Before LAY, Chief Judge, HEANEY and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
The award of attorneys’ fees in the Kansas City, Missouri school desegregation case has resulted in this trio of appeals. The district court1 awarded plaintiffs’ co-counsel, Arthur Benson, and the Legal Defense Fund of the NAACP (LDF) fees and expenses for services rendered in the litigation, imposed solely against the State of Missouri. The district court denied the application of the Kansas City, Missouri School District (KCMSD) for attorneys’ fees. On appeal the State of Missouri argues that the district court award compensated plaintiffs’ counsel for time spent on unsuccessful claims and the fee should have been reduced because of plaintiffs’ partial success; that there was error in awarding an hourly rate based upon a delay in payment factor because this is an award of interest against the State prohibited by the eleventh amendment; that 50 percent of the fee should have been imposed on KCMSD; and that the fees and expenses were unreasonable. KCMSD argues that as a party seeking to enforce the civil rights laws through litigation and as a prevailing party, it was eligible for an award of attorneys’ fees. Plaintiffs argue that the district court erred in not enhancing their fee to compensate for the risk plaintiffs’ counsel assumed. The judgment of the district court is affirmed.
The school desegregation case was filed in 1977 and the history of this litigation is outlined with a broad brush in this court en banc’s opinion. Jenkins v. State of Missouri, 807 F.2d 657, 661–62 (8th Cir.1986) (en banc), cert. denied, ––– U.S. ––––, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). Plaintiffs submitted a detailed application for fees under 42 U.S.C. § 1988 (1982).2 The State filed a response cataloging specific items in the fee applications it deemed excessive, and the plaintiffs responded with an item-by-item rebuttal of the State’s objections. Evidence was presented at a hearing.
The district court recognized that plaintiffs are entitled to attorneys’ fees if they succeeded on any significant issue in the litigation. It found the plaintiffs were undisputedly prevailing parties.
The district court based its fee calculation on the number of hours and amount of expenses the plaintiffs submitted. The plaintiffs had cut their total hours to delete time spent on unsuccessful interdistrict claims against federal, Kansas and suburban school district defendants. The court adopted the plaintiffs’ adjusted request as the basis for the number of reasonable hours, rejecting the State’s arguments for further cuts because it found that the remaining hours were either expended solely on the successful claims or were “so closely interrelated” with them “that they cannot be separated or reduced by some arbitrary *263 percentage.” Jenkins v. Missouri, No. 77–0420–CV–W–4, slip. op. at 3 (W.D.Mo. May 11,

1987).
The district court concluded that the hours submitted by the plaintiffs after their suggested reductions for time spent on unsuccessful claims represented the time reasonably spent on this litigation, except for 3.5 of the hours requested for LDF attorney Liebman. The court also determined that the hours and expenses submitted by LDF and Benson for litigating fee requests were reasonable and allowed the expenses and a fee based on the hours submitted.
The court then turned to the determination of an hourly rate. It found that Benson’s rate would fall at the higher end of a range of $125 to $175 per hour. In doing so it considered the attorney’s customary fee, his experience, reputation and ability. In addition, because the application was for services rendered from March, 1979 through June, 1986, the court deemed it essential that the hourly rate include compensation for the delay in payment. In light of delay, preclusion from other employment and the undesirability of the case, the court determined that an hourly rate of $200 per hour was reasonable.
The court determined the applicable rate for LDF’s fees to be that of the locality of the litigation, Kansas City, rather than New York. It determined that a fee was appropriate for the representation by non-profit counsel and considering compensation for delay in payment awarded LDF fees at the current rather than historical rates.
The court rejected plaintiffs’ claims for enhancement of the fee for quality of representation and risk of non-payment, finding that the quality of representation was included in the determination of the hourly rate. It rejected the argument that there should be upward adjustment for risk of loss because it found the plaintiffs’ likelihood of success in their claim against the State was very high, the risk of non-payment slight, and the small risk of non-payment was fully reflected in the reasonable attorneys’ fee calculated by the court.
The district court awarded Benson and his staff a total of $1,687,139.92 for fees and expenses rendered from March 1979 to June 30, 1986, and for the fees and expenses incurred in litigating the fee application. As Benson had received $347,332.93 of this amount, the balance due was stated to be $1,339,806.99. The court awarded LDF a total of $2,323,730.60 for fees and expenses through May 31, 1985, and $42,145.14 for litigation of the fees and expenses issue.
The court amended its order on July 14, 1987 to include an additional $37,950.00 fee award to Benson for monitoring the remedial plan in 1985–86, based on an hourly rate of $125 per hour for Benson, and $3,478.00 in expenses so incurred.
In ruling on KCMSD’s fee application, the court noted that it had found in favor of KCMSD on its cross-claim against the State of Missouri, but that the cross-claim simply reiterated plaintiffs’ allegations and that the same remedial plans would have been ordered even if KCMSD had not reiterated plaintiffs’ allegations in its cross-claim. The district court also observed that KCMSD was adjudged liable and ordered to pay 50 percent of the costs of the remedy. See Jenkins, 807 F.2d at 684–85. It concluded that because KCMSD had violated the constitution by adopting policies which perpetuated rather than eliminated segregation, it was inappropriate to award attorneys’ fees to a constitutional violator.
In determining who should pay the plaintiffs’ fee, the court observed that the State of Missouri was the primary constitutional violator. Moreover, the district court noted that KCMSD had cooperated closely with the plaintiff and in fact had originally been a plaintiff before the court realigned it as a defendant in 1978. Also, KCMSD had admitted liability prior to trial, while the State had persisted in denying liability throughout the ten and a half month trial on liability issues. Accordingly, the court concluded that KCMSD would not be liable for the attorneys’ fees and expenses and that the award of fees should be imposed solely against the State.
*264 Before we consider the contentions of the parties with respect to the fee, we reiterate the concern of the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), that the attorneys’ fee issue should not result in a second major litigation and that ideally the litigants will settle the amount of the fee. Id. at 437, 103 S.Ct. at 1941.
I. Missouri’s Appeal.
The State first argues that the district court erred in compensating the plaintiffs for time spent on the unsuccessful claims against prevailing defendants and in failing to further reduce the compensable hours due to plaintiffs’ partial success as compared to the scope of the litigation as a whole. The State points out that the district court accepted the Hensley reductions made by plaintiffs, which resulted in a fee based on roughly 85 percent of the total hours worked, in spite of plaintiffs’ lack of

success on their interdistrict claim.
[1] [2] [3] Hensley v. Eckerhart provides the guidance for setting fee awards in cases where plaintiffs were less than totally successful:
Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the award of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained.
461 U.S. at 440, 103 S.Ct. at 1943.
[4] In this case, the plaintiffs made unsuccessful claims against the State as well as the suburban, federal, and Kansas defendants for interdistrict relief. They also made successful intradistrict claims against the State and KCMSD. The district court found that the plaintiffs appropriately excluded hours that did not relate to the claims on which plaintiffs prevailed, and that the remaining hours either related solely to the successful claims or related to them as well as to unsuccessful claims and the time could not be set aside as devoted to the unsuccessful claims. This allocation of hours among the various claims is a finding of fact, which we can reverse only if clearly erroneous. See City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 2693, 91 L.Ed.2d 466 (1986); 106 S.Ct. at 2699 (Powell, J. concurring).
The State argues that reduction of the hours worked by only about 15% cannot be an adequate reduction for the time spent on claims against prevailing defendants. It is true that much of the testimony and much of the effort at trial was pointed toward relief that was not obtained. Our acquaintance with the record in this case from consideration of the appeal on the merits convinces us that many of the issues were separate in nature, but also that a substantial portion of the testimony that bore upon the unsuccessful claims was closely interrelated with the remaining claims. The parties briefed this question in detail before the trial court, explaining why they believed each time entry was or was not compensable. Were we to fix the initial percentage reduction of the time spent by plaintiffs’ counsel, we might not have arrived at the same result as the district court. However, upon review of the record, we cannot say that the district court’s finding was clearly erroneous, and we may not substitute our own findings for those of the district court. See Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
The state argues that the district court failed to consider the degree of success obtained as required by Hensley. While the district court could have been more explicit in this respect, we are satisfied that the parties forcefully brought to the attention of the district court the analysis required by Hensley and that the district court faithfully applied Hensley in awarding the fee. In focussing on the time relating solely to the successful claims or so closely interrelated to those claims that it *265 could not be separated or reduced and determining a reasonable fee, the district court gave proper weight to the degree of success. See McCurry v. Tesch, 824 F.2d 638, 642 (8th Cir.1987).
The State’s proposed second reduction would amount to a double deduction by taking away hours relating to the successful claim because of unsuccessful ones, which have already been the subject of reduction. “A court should not disallow attorney hours related and necessary to successful claims.” Catlett v. Missouri Highway and Transportation Commission, 828 F.2d 1260, 1270 (8th Cir.1987); see Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1137 (11th Cir.1984). A second Hensley deduction is not appropriate. Accord Rogers v. Okin, 821 F.2d 22, 25, 29 (1st Cir.1987), petition for cert. filed (Nov. 3, 1987) (district court correctly deleted only time wholly unrelated to successful claim).
[5] The State next argues that the district court erred in considering delay in payment as a factor in setting plaintiffs’ attorneys’ hourly rates. The State relies on Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), and Rogers v. Okin, 821 F.2d 22 (1st Cir.1987), for the proposition that the district court’s consideration of delay constituted an award of interest that violated the eleventh amendment. We are not persuaded by this argument.
Shaw involved an award of attorneys’ fees in a Title VII case against the federal government, in which the district court increased the lodestar by 30% to compensate for delay in payment. The Supreme Court reversed on the grounds that the award of interest on the fees was forbidden by the “no-interest” rule, which requires a specific waiver of the federal government’s sovereign immunity with regard to interest, in addition to the waiver of immunity on the underlying cause of

action.
In Rogers the First Circuit analogized from Shaw to forbid an award of fees against a state based on current hourly rates. 821 F.2d at 26–28. We cannot agree with the Rogers court that the holding in Shaw is applicable in a case involving eleventh amendment, rather than federal sovereign immunity, or to a case where the court awards current rates or considers delay as one factor in setting a compensatory fee award.
First, Shaw was expressly based on the “no interest” rule of statutory interpretation applicable in suits against the federal government. 106 S.Ct. at 2962–63. Rogers does not explain why it considers Shaw’s federal sovereign immunity holding applicable in an eleventh amendment setting, and indeed Rogers acknowledges that the two areas of law carry “different standards of statutory interpretation.” 821 F.2d at 27. We see no reason to extend Shaw to the body of eleventh amendment law, which was not covered by its rationale.
Second, Rogers assumes that compensation for delay equates with prejudgment interest, and we are not satisfied that it does. Shaw leaves open a distinction between a separately stated enhancement for delay, such as the thirty percent enhancement in Shaw, which it regarded as interest, and merely considering delay as one factor in setting the hourly fee, as the district court did in this case. Judge Ginsburg dissented from the Court of Appeals decision allowing interest in Shaw, Shaw v. Library of Congress, 747 F.2d 1469, 1485–93 (D.C.Cir.1984), arguing that “use of current rather than the historical hourly rates in order to compensate for delay, or use of historical rates that were based on expected delay ... would not run afoul of the no-interest rule.” 106 S.Ct. at 2961 (summary by Blackmun, J.). In the Supreme Court’s opinion, Justice Blackmun adverted to Judge Ginsburg’s dissent without disapproval. Id.
[6] At any rate, the eleventh amendment is not a barrier to recovery of fees against a state under section 1988, see generally Hutto v. Finney, 437 U.S. 678, 693–94, 98 S.Ct. 2565, 2574–75, 57 L.Ed.2d 522 (1978), and the courts have regularly interpreted section 1988 to permit compensation for delay in the payment of fees, e.g., Sisco v. J.S. Alberici Construction Co., 733 F.2d 55, 59 n. 3 (8th Cir.1984); Grendel’s Den, *266 Inc. v. Larkin, 749 F.2d 945, 951, 955 (1st Cir.1984); Daly v. Hill, 790 F.2d 1071, 1081 (4th Cir.1986); Lightfoot v. Walker, 826 F.2d 516, 523 (7th Cir.1987); Jordan v. Multnomah County, 815 F.2d 1258, 1262–63 n. 7 (9th Cir.1987); Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983); Gaines v. Dougherty County Board of Education, 775 F.2d 1565, 1572 (11th Cir.1985). In Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 107 S.Ct. 3078, 3081–82, 3099, 97 L.Ed.2d 585 (1987), both the majority and dissenting justices seem to have approved award of delay compensation under the “typical fee-shifting statute.” But the Rogers court premised its holding on its conclusion that § 1988 does not permit compensation for delay: “Our problem in the instant case is that Congress has not yet made any statement suggesting that a § 1988 attorney’s fee award should include prejudgment interest.” 821 F.2d at 27. The Rogers court’s decision that section 1988 does not permit delay compensation runs counter to the generally accepted view of that statute, and we will not disregard the established body of section 1988 law.
We hold that the district court properly considered delay in establishing the hourly rate.
[7] The State also argues that the district court erred in allowing fees for paralegals and law clerks in excess of $15 per hour, which the State “suggests” is the cost to plaintiffs’ attorneys of hiring the clerks and paralegals. We recognize that other courts have approached this question differently, some viewing paralegal work as a cost to be reimbursed and others as a portion of the fee, to be given market treatment. This circuit has not resolved this question, although we have stated that “[p]aralegal fees should be allowed if reasonable and not duplicative of other legal fees.” Hawkins v. Anheuser–Busch, Inc., 697 F.2d 810, 817 (8th Cir.1983). We believe that market considerations should govern, but it is not necessary to adopt an ironclad rule in this case. Suffice it to say that the district court found that $40 per hour for paralegals and $35 per hour for law clerks were reasonable fees, slip op. at 7, and we cannot say its determination was clearly erroneous.
The State raises numerous other issues dealing with granting plaintiffs’ excessive hourly billing rates and litigation expenses, particularly expert witness fees for James Anderson. While we acknowledge that some of the State’s arguments have some force, we conclude that the district court’s determinations in these respects were not clearly erroneous.
In its appeal against the KCMSD the State argues that the district court erred in failing to impose 50 percent of the liability for fees and expenses on KCMSD.4 The district court justified the allocation of the fee by pointing to its earlier conclusion that the State of Missouri was the primary constitutional violator. By contrast KCMSD did not cause the unlawful segregation but simply failed, as did the State, to disestablish the dual school system created by the State of Missouri and adopted policies which were ineffective in eliminating the unlawful segregation. Moreover, the court pointed to the fact that KCMSD had

cooperated with the plaintiffs and had conceded liability prior to trial, while the State denied liability, thereby contributing to the necessity of a ten and a half month trial. Thus, in effect the district court concluded that KCMSD minimized the need for plaintiffs to incur attorneys’ fees, while the State maximized the need.
[8] The district court based its award on the defendants’ relative degrees of culpability and the time the plaintiffs were forced to spend litigating against the respective defendants. Both factors are appropriate considerations in determining who must shoulder the fees award. See *267 Rose v. Nebraska, 748 F.2d 1258, 1264 (8th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 61, 88 L.Ed.2d 50 (1985), and Charles v. Coleman, 689 F.2d 774, 777 (8th Cir.1982) (degree of liability considered in allocating responsibility for fees); Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 960 (1st Cir.1984); Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1125–26 (9th Cir.1981) (relative time); see generally Little Rock School District v. Pulaski County Special School District No. 1, 787 F.2d 372, 374 (8th Cir.) (Arnold, J., concurring and dissenting), cert. denied, 476 U.S. 1186, 106 S.Ct. 2926, 91 L.Ed.2d 554 (1986) (relative culpability and relative litigation time relevant).
[9] The State argues that fees should be allocated in the same percentages as liability for the costs of the substantive relief. However, the criteria for liability on the merits and for liability for fees are different—obviously, the court could not consider the amount of time spent litigating against the respective defendants when it apportioned liability for the substantive relief, but that is an appropriate consideration in apportioning liability for fees.
The district court’s allocation of fees is reversible only in the event of abuse of discretion. See Adams, 657 F.2d at 1126. The reasons given by the district court in this case adequately supported its decision to place responsibility for the fees on the State.
II. KCMSD’S Appeal
[10] We reject KCMSD’s argument that it is entitled to attorneys’ fees. In essence, the district court concluded that KCMSD in its cross-claim against the State simply reiterated claims made by the Jenkins class and insofar as KCMSD had been improved by the remedial plans, these plans would have been ordered as a result of plaintiffs’ claims regardless of KCMSD’s cross-claim. In addition, KCMSD had been adjudged a constitutional violator and the court determined it was therefore inappropriate to award it attorneys’ fees. Under section 1988 a prevailing plaintiff is entitled to an award of attorneys’ fees “ ‘unless special circumstances would render such an award unjust.’ ” S.Rep. No. 94–1011, 94th Cong. 2d Sess. 4, reprinted in 1976 U.S.Code Cong. & Admin.News 5908, 5912. Though a district court’s discretion in determining when such special circumstances exist is narrowly limited, see New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68, 100 S.Ct. 2024, 2033, 64 L.Ed.2d 723 (1980) (title VII), the district court did not abuse its discretion in finding them here.
KCMSD cites our case of United States v. Arkansas, 791 F.2d 1573 (8th Cir.1986), in support of its argument that the court should not have considered KCMSD’s role as constitutional violator in determining that special circumstances would make an award of attorneys’ fees in favor of KCMSD unjust. There, while the school districts had been held liable, the district court attempted to assess the entire cost of consolidating against the state, based on a finding that gerrymandering had resulted from the requirements of Arkansas law mandating segregation. 791 F.2d at 1575. In contrast to the situation assumed in United States v. Arkansas, in this case KCMSD was not only liable, but this court determined it was appropriate for KCMSD to pay 50% of the costs of the remedy. Jenkins, 807 F.2d at 684–86. Under these circumstances, the district court acted within its discretion in determining that it would be unjust to award KCMSD its fees against the State.
III. Plaintiffs’ Appeal.
[11] Plaintiffs argue that they are entitled to an enhancement of the fee awarded for Attorney Benson on the grounds that he is entitled to compensation for litigating the case on a contingency basis.
The district court’s order was entered before the Supreme Court handed down its decision in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987) (Delaware Valley II ), which clarified

the prerequisites for enhancement of a fee award for contingency. There was no majority opinion in Delaware Valley II, but Justice O’Connor’s concurrence in judgment formed a majority for the holding that a contingency enhancement would be *268 permissible in some circumstances, and another majority for the holding that such circumstances did not exist in the Delaware Valley II case. Justice O’Connor stated that contingency enhancements should be awarded only on proof that the relevant market compensates for contingency cases as a class, rather than on proof of any particular risks peculiar to the case in question. 107 S.Ct. at 3090–91. Specifically, Justice O’Connor would require proof that “without an adjustment for risk the prevailing party ‘would have faced substantial difficulties in finding counsel in the local or other relevant market.’ ” Id. at 3091 (quoting plurality opinion, 107 S.Ct. at 3089).
The district court in this case denied plaintiffs a contingency enhancement based on the plaintiffs’ high likelihood of success in the particular substantive case at bar; the court’s criteria were not those adopted by Justice O’Connor, who disapproved enhancement decisions based on “legal risks” peculiar to a particular case. However, plaintiffs would have fared no better under Justice O’Connor’s analysis, since they failed to adduce proof that they would have faced substantial difficulties finding representation without an adjustment for contingency. While plaintiffs presented evidence that the Kansas City market generally compensates successful attorneys for assuming the risk of contingency cases, they did not introduce any evidence about availability of counsel to plaintiffs in the absence of contingency adjustments. Several attorneys testified that they would not have taken the case at all, and one civil rights litigator testified he would not have taken the case without regular payments. Testimony of these individuals comes short of proof that adjustment for contingency was a crucial factor in plaintiffs’ ability to obtain counsel. See generally Blum v. Witco Chemical Corp., 829 F.2d 367, 380–81 (3d Cir.1987). On the record, we do not discover the proof required by Justice O’Connor as prerequisite for award of a contingency enhancement. See Catlett, 828 F.2d at 1271.
Plaintiffs also argue that they should receive enhancement for the risk inherent in this particular case in accordance with the Delaware Valley II views of Justice Blackmun. However, Justice O’Connor disapproved Justice Blackmun’s suggestion of enhancement for extraordinary legal risk in a particular case, 107 S.Ct. at 3090, and therefore Justice Blackmun’s views did not command a majority of the Court. Furthermore, the district court specifically held that this case did not involve extraordinary risk of failure and this finding is not clearly erroneous. Therefore, even under Justice Blackmun’s views, the plaintiffs are not entitled to a contingency enhancement for extraordinary risk in this case.
The judgment of the district court is affirmed in all respects.

All Citations 838 F.2d 260, 44 Ed. Law Rep. 120

Footnotes

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

42 U.S.C. § 1988 (1982) provides in relevant part:

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985 and 1986 of this title ...

the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs.

4

KCMSD and the State rely in their briefs on unpublished opinions of this court in the St. Louis school

desegregation case. Under our Rule 8(i), unpublished opinions may not be cited except when related to the case

at bar “by virtue of an identity between the parties or causes of action.” In any event, we do not consider those

opinions to be applicable or persuasive in considering the order before us.

 
 855 F.2d 1295 United States Court of Appeals,
Eighth Circuit.
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, 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, Barbara Pugh; Cynthia Winters, by her next friend, David Winters; on behalf of themselves and all others similarly situated, and American Federation
of Teachers, Local 691, Appellees, v.
The STATE OF MISSOURI, Honorable John Ashcroft, Governor of the State of Missouri, Wendell Bailey, Treasurer of the State of Missouri, Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A.
Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Members of the Missouri State Board of Education, Arthur L. Mallory, Commissioner of Education of the State
of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees. Kalima JENKINS, by her friend, Kamau AGYEI, et al., and American Federation of Teachers, Local 691,
Appellees, v.
The STATE OF MISSOURI, et al., and School District of Kansas City, Missouri, et al., Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City
Mantel & Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; Linda Frazier; Rick Feierabend; Linda Hollenbeck; James Hollenbeck; Susan Horseman; and Clifford M. Horseman, Appellants. Kalima JENKINS, by her friend, Kamau AGYEI, et al., and American Federation of Teachers, Local 691, v. The STATE OF MISSOURI, et al., and School District of Kansas City, Missouri, et al., Appellees,
Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City Mantel & Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; Linda Frazier; Rick Feierabend; Linda Hollenbeck; James Hollenbeck; Susan Horseman; and Clifford M. Horseman, Jackson County, Missouri, Appellants. Kalima JENKINS, by her friend, Kamau AGYEI, et al., Appellants, and American Federation of Teachers, Local 691, v. The STATE OF MISSOURI, et al., and School District of Kansas City, et al., Appellees. Kalima JENKINS, by her friend, Kamau AGYEI, et al., Appellees, and American Federal of Teachers, Local 691, v. The STATE OF MISSOURI, et al., and School District of Kansas City, Missouri, et al., Appellees, Jackson County, Missouri; William Waris; Bernice J. Conley; Gary Panetheire; Beverly O. Ross; Michael Bendergast, their officials, Appellants. Kalima JENKINS, by her friend, Kamau AGYEI, et al., and American Federation of Teachers, Local 691, v. The STATE OF MISSOURI, et al., Appellees, and School District of Kansas City, et al., Appellants.
Nos. 86–1934, 86–2537, 87–1749, 87–2299, 87–2300, 87–2588, 87–2565, 87–2589, 87–2659, 88–1073 and 88–1456. |
Submitted March 21, 1988. |

Decided Aug. 19, 1988. |
Rehearings En Banc Denied in Nos. 86–1934, 86–2537, 87–1479, 87–2299, 87–2300, 87–2565, 87–2588, 87– 2589, 88–1073 Oct. 14, 1988. |
Order on Denial of Rehearings En Banc Oct. 14, 1988.
Synopsis State, county, and various individual and corporate taxpayers appealed from decision of the United States District Court for the Western District of Missouri, Russell G. Clark, J., 672 F.Supp. 400, establishing school district desegregation plan and methods by which that plan would be funded. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) use of magnet schools to attract nonminority students was proper; (2) capital improvements program for district totaling some $260 million was proper; (3) 75% of cost of plan was properly allocated to State; (4) increase of property tax levy was appropriate; (5) district court exceeded its authority in ordering state income tax surcharge; (6) injunction was properly entered against county to collect property tax; and (7) intervention as of right was properly denied for county and individual and corporate taxpayers.
Affirmed in part, reversed and remanded in part.
Lay, Chief Judge, concurred in part, dissented in part, and filed opinion.
Attorneys and Law Firms
*1299 H. Barow Farr, III, Washington, D.C. for State of Mo.
Roger Clegg, amicus for U.S.
Mark Bredemeier, Kansas City, Mo., amicus for Icelean Clark, et al.
John B. Williams, Kansas City, Mo., for Jackson County.
Robert T. Stephen, Topeka, Kan., amicus for State of Kan.
Allen Snyder, Washington, D.C., for Kansas City School Dist.
Arthur Benson, Kansas City, Mo. and Russell E. Lovell, II, Des Moines, Ia., for Kalima Jenkins.
Before LAY, Chief Judge, HEANEY and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
The Kansas City School District desegregation case is before us again and we now must consider the scope of the remedies ordered by the district court,1 specifically with respect to magnet schools and capital improvements, and the tax increases authorized to generate the Kansas City, Missouri School District’s share of the costs of these programs.2 We affirm the judgment of the district court with respect to scope of the remedy as to magnet schools and capital improvements with some slight modifications. While we approve the order and conclusions of the district court with respect to the property tax, we modify its future operation to more closely comport with limitations upon our judicial authority, and we reverse that part of the district court’s order establishing an income tax surcharge.
In this case the district court dealt with undisputed constitutional violations and its series of orders were necessary to remedy the lingering results of these violations, since local and state authorities had defaulted in their duty to correct them. See Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275–76, 28 L.Ed.2d 554 (1971); Brown v. Bd.

of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) (Brown II ).
The Supreme Court has provided broad guidelines for the district courts in such cases. In Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ), the Court set forth a three part analysis of the district court’s remedial power:
In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. The remedy must therefore be related to ‘the condition alleged to offend the Constitution....’ Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.’ Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.
433 U.S. at 280–81, 97 S.Ct. at 2757 (citations omitted).
Our standard of review of the district court’s actions within these limiting legal principles is restricted: “[T]he choice of remedies to redress racial discrimination is ‘a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court.’ ” United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 508, 100 S.Ct. 2758, 2790, 65 L.Ed.2d 902 (1980) (Powell, J., concurring)); United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1236 (2d Cir.1987), cert. denied, ––– *1300 U.S. ––––, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988). We have also recognized the importance of the district court’s factual findings, which may not be disturbed unless clearly erroneous. Fed.R.Civ.P. 52(a); Jenkins v. Missouri, 807 F.2d 657, 666–67 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, ––– U.S. ––––, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).
Bearing in mind these limitations on the district court’s remedial power and on our scope of review, we turn to the constitutional violations identified by the district court.
The State has admitted and the district court judicially noticed that Missouri mandated segregated schools for black and white children before 1954. Jenkins v. Missouri, 593 F.Supp. 1485, 1490 (W.D.Mo. Sept. 17, 1984). KCMSD established and maintained segregated facilities with segregated staffs. There are still vestiges of the dual school system lingering in KCMSD, and KCMSD and the State have not met their obligations to disestablish that system. 593 F.Supp. at 1504.
The district court further found that “the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District.” 593 F.Supp. at 1492. “[W]itnesses confirmed the conclusion reached by the Supreme Court in Brown I [Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ] that forced segregation ruins attitudes and is inherently unequal * * *. The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty.” 593 F.Supp. at 1492 (citations to the record omitted). “Segregation has caused a system wide reduction in student achievement in the schools of the KCMSD.” Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D.Mo.1985) (citations to record omitted) (emphasis in original).
The district court found that segregation in KCMSD caused the departure of the whites in the system to private schools and to the suburbs. Order of Aug. 25, 1986, slip op. at 1–2. See also Order of November 12, 1986, slip op. at 3. During the years between Brown I and trial, the enrollment of KCMSD shifted from predominantly white to predominantly black. In the 1958– 59 school year, blacks constituted 22.5% of KCMSD enrollment, but by 1983–84 enrollment was 67.7% black and white enrollment had dropped 80%. 593 F.Supp. at 1495. “[A]s of 1974, 20 years after Brown I, 39 schools were more than 90% black * * *. Eighty percent of all blacks in the District attended schools that were 90% black * * *.” Id. at 1492–93. KCMSD later reduced the number of over–90%–black–enrollment–schools, but the district court found in 1984 that KCMSD had still not completely dismantled the dual system. Id.
In discussing KCMSD’s school buildings the district court made the stark finding that “[KCMSD’s] physical facilities have literally rotted.” Jenkins v. Missouri, 672 F.Supp. 400, 411 (W.D.Mo.1987). Specifically, the court found that “the overall condition of the KCMSD school buildings, particularly the interiors, is generally depressing and thus adversely affects the learning environment and continues to discourage parents who might otherwise enroll their children in the KCMSD.” Id. at 403 (citations to record omitted). The district court found there were “numerous health and safety hazards, educational environment hazards, functional impairments, and appearance impairments” in the KCMSD’s facilities, and catalogued examples of these problems and the evidence of them before the court. Id. at 403.
The district court made findings that both KMCSD and the State had caused the decay of the KCMSD’s buildings. The court

specifically found that “even if the State * * * did not directly cause the deterioration of the school facilities, it certainly contributed to, if not precipitated, an atmosphere which prevented the KCMSD from raising the necessary funds to maintain its schools.” Order of November 12, 1986, slip op. at 4; accord, 672 F.Supp. at 403.
In response to these findings of vestiges of unconstitutional segregation, the court *1301 ordered remedial programs involving magnet schools and capital improvements.
The magnet plan provided that by 1991–92 every high school and middle school in the KCMSD and about half the elementary schools would become magnet schools with one or more distinctive themes, such as foreign languages, performing arts, and math and science. Order of Nov. 12, 1986, slip op. at 2. The elementary magnets were to be located at selected sites throughout KCMSD, with at least one magnet in each area of the KCMSD.3
The district court also ordered a capital improvements program for KCMSD totaling some $260 million.4 The principal capital improvement plan called for the closing of some eighteen KCMSD school facilities, construction of seventeen new facilities and renovation of others. 672 F.Supp. at 405. The portion of the plan the court ordered to be funded is scheduled for completion by the fall of 1990. Id.
In considering its final capital improvement order the district court gave specific attention both to KCMSD’s proposal and the State’s alternate proposal calling for approximately $61 million in renovations. Id. at 403–05. It rejected the State’s recommendations as an inadequate “patch and repair” approach which would not serve the remedial goals established by the court, id. at 404, and concluded that the limited renovation the State proposed would result in the schools continuing to be “unattractive and substandard, and would certainly serve as a deterrent to parents considering enrolling their children in KCMSD schools.” Id. at 405.
To enable KCMSD to fund its share of the costs of the desegregation plan, the district court imposed a 1.5 percent surcharge on income of residents and non-residents of KCMSD subject to the Missouri State income tax “for work done, services rendered and business or other activities conducted within the KCMSD.” Jenkins, 672 F.Supp. at 412. The court also ordered the district’s property tax levy to be increased to $4 per $100 assessed valuation through the 1991–92 fiscal year, and authorized KCMSD to issue $150,000,000 in capital improvement bonds, to be retired within twenty years. Id. at 413.
I.
[1] The district court’s remedial orders were based on the elementary principle that the victims of unconstitutional segregation must be made whole, and that to make them whole it will be necessary to improve their educational opportunities and reduce their racial isolation. The foundation of the plans adopted was the idea that improving the KCMSD as a system would at the same time compensate the blacks for the education they had been denied and attract whites from within and without the KCMSD to formerly black schools. See Order of June 16, 1986, slip op. at 17. The long term goal of the district court’s effort was therefore:
to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district. In achieving this goal the victims of unconstitutional segregation will be restored to the position they would have occupied absent such conduct, while establishing an environment designed to *1302 maintain and attract non-minority enrollment.
Id. (emphasis added); accord, 639 F.Supp. at 54.
In later orders the district court explained how the magnet school and capital improvement plans would bring about these ultimate objectives. The court found “that the proposed magnet plan would generate voluntary student transfers resulting in greater desegregation in the district schools.” Order of November 12, 1986, slip op. at 3. The court specifically stated:
[T]he plan would provide both minority and non-minority district students with many incentives to leave their neighborhoods and enroll in the magnet schools offering the distinctive themes of interest to them. Most importantly, the Court believes that the proposed magnet plan is so attractive that it would

draw non-minority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs.
Id.
The district court thus articulated three remedial goals needed to restore the victims to the position they would have occupied without the State and KCMSD’s constitutional violations: first, to improve the educational lot of the victims of unconstitutional segregation; second, to regain some portion of the white students who fled the district and retain those who are still there; and third, to redistribute the students within the KCMSD to achieve the maximum desegregation possible.
[2] The State argues that the goal of attracting non-minority students from private schools and suburban schools is not warranted by the nature of the constitutional violation unless KCMSD and the State committed a specific violation causing students to withdraw from the system. The State argues that under Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed. 2d 1069 (1974) (Milliken I ), a court remedying an intradistrict violation must simply strive to distribute students within the district evenly by race. But this court has held in Jenkins I, 807 F.2d at 683–84, and Liddell v. Missouri, 731 F.2d 1294, 1302– 08 (8th Cir.) (en banc) (Liddell VII ), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), that voluntary interdistrict remedies may be used to make meaningful integration possible in a predominantly minority district.
These holdings are bolstered by the district court’s findings that the preponderance of black students in the district was due to the State and KCMSD’s constitutional violations, which caused white flight. The district court found that the existence of segregated schools led to white flight from the KCMSD to suburban districts and to private schools.5 E.g., Order of Aug. 25, 1986, slip op. at 1–2. See also Order of November 12, 1986, slip op. at 3. This finding is implicitly recognized in the court’s remedial orders with the express goal of attracting back the students who had left KCMSD schools.
These findings that the unconstitutional segregation caused the KCMSD to lose certain students form the basis for a remedy designed to attract such students back. Without regaining those students who have already fled, the desegregation effort in this case will take place in a school district *1303 with a preponderance (roughly 70%) of black students, despite its majority white population. Under such circumstances, the State’s position would effectively defeat any possibility of meaningful integration.
The State argues that any consideration of white flight to the suburban districts runs contrary to our earlier holdings and to earlier findings of the district court. These arguments simply miss the mark. Jenkins I dealt with white flight in the context of a claim for interdistrict relief. We first note that three judges of this court would have found an interdistrict violation, 807 F. 2d at 696 (Lay, C.J., dissenting), and that the four judges that concluded there was not such a violation concluded that KCMSD’s segregation had no substantial segregative effect in the SSD’s. See id. at 680–81. This finding concerning segregation in the SSD’s is not inconsistent with a further finding that KCMSD’s segregation caused it to lose significant numbers of its white students and that regaining those students is a necessary part of restoring the victims to the condition they would have enjoyed had there been no constitutional violation.
The State further argues that it cannot be responsible for the voluntary departure of white students from the school district and that white flight “is usually a reaction to just the sort of change that federal courts seek to implement.” State’s Reply Brief at 9. This argument does not necessarily contradict the district court’s findings that state-imposed segregation caused white flight and that the failure to eliminate the vestiges of discrimination contributed to the decline in the educational quality and physical plant of the KCMSD school system. In any event, such court-ordered integration would not have been necessary had the State not unconstitutionally mandated a dual school system and then failed to eliminate the vestiges of segregation.
[3] The State also attacks the goal of improving the education of all KCMSD students, arguing that this remedial goal exceeds the scope of the violation, because it seeks to benefit all KCMSD students, not just those minority students who have suffered from the effects of the constitutional violations. Careful reading of the district court’s order shows that the court did not view improving education for all KCMSD students as an end in itself, but as a means to serve the goals of restoring to the victims the education they have been denied and of attracting and maintaining whites in the KCMSD. See Order of June 16, 1986, slip op. at 17 (language quoted at p. 11, supra ); 639 F.Supp. at 54. We cannot say that the district court abused its discretion in using system-wide educational enhancements to accomplish its legitimate desegregative objectives. Moreover, this court has approved remedial programs for the benefit of all students in a district where the children have been deprived of the right to a desegregated education. See Little Rock School District v. Pulaski County Special School District No. 1, 839 F. 2d 1296, 1308 (8th Cir.1988).

[4] The State next argues that the findings of the district court do not identify statistics for student enrollment that would indicate that KCMSD had become a unitary school district. The State argues that without such findings, there can be no objective evaluation of whether the plans ordered are well-crafted to achieve unitariness.
The State’s argument would have more force if we dealt only with a question of student assignment. We have before us a system-wide desegregation remedy involving magnet schools and capital improvements that is planned for completion over a five year period. One of the most complex questions in desegregation litigation is that of when a district has become unitary. We decline to give an advisory opinion on that issue, but leave it for consideration when the programs planned through the 1991–92 year have been implemented.
Next, the State argues that the magnet school plan adopted by the district court does not serve the court’s avowed goals. These arguments attack the district court’s factual findings and therefore must be reviewed under the clearly erroneous standard.
[5] First, the State contends that the extent of magnet schools ordered exceeds *1304 the amount necessary to achieve uniform distribution of minority and majority race students at schools within the district, or even disserves the goal of uniform distribution.
The State argues that the plan simply includes too many magnet schools—that it is extravagant. The district court specifically addressed the State’s concern over making magnet schools of all the senior high and middle schools and half the elementary schools. It observed that in the ordinary magnet plan, because of limitations on the number of students who may be enrolled, “for each non-minority student who enrolls in the magnet school a minority student, who has been the victim of past discrimination, is denied admittance.” Order of Nov. 12, 1986, slip op. at 3. It found that “[w]hile these plans may achieve a better racial mix in those few schools, the victims of racial segregation are denied the educational opportunity available to only those students enrolled in the few magnet schools. This results in a school system of two-tiers as it relates to the quality of education. This inequity is avoided by the KCMSD magnet school plan.” Id. The State in its filings with the district court cautioned about creation of a two-tiered system of schools in which “existing schools are, or are perceived to be, markedly inferior.” Response of State to KCMSD motion for approval of 1986–87 magnet programs, p. 12. The State’s expert witness, Dr. Doyle, echoed this concern and suggested that one way to avoid the problem was to convert an entire school system to magnet schools. Tr. 376, 381–82, June 5, 1986. Another State’s witness, Dr. Cooper, also agreed on cross-examination that the comprehensiveness of the plan was a step in the right direction. Tr. 890, Sept. 18, 1986. The district court’s finding regarding the need for the number of magnet schools authorized by the plan is amply supported by the State’s own evidence.
[6] The State also argues that by locating magnet schools within white neighborhoods as well as black neighborhoods, the plan will defeat integration by allowing children to attend magnet schools within their own neighborhoods. The plan was fashioned to prevent such a result. The plan offers different themes in numerous elementary schools in the district, some located close to suburban areas and others in heavily minority residential districts. The various schools should therefore draw students from all parts of the district and increase the desegregative opportunity. The plan builds upon this by providing middle and high school magnet programs, giving those attending elementary school magnets a strong incentive to stay in the district throughout their school years. The State’s expert, Dr. Doyle, agreed that this feeder pattern would be desegregative. Tr. 808, Sept. 18, 1986.
The State also attacks the district court’s findings that the magnet plan will provide schools that are attractive to whites not currently attending KCMSD schools. Order of Nov. 12, 1986, slip op. at 3. However, the State has pointed to no evidence in the record persuading us that this finding is clearly erroneous.
We conclude that the district court’s finding that the magnet plan was properly designed to achieve voluntary desegregation is not clearly erroneous.
II.
The State attacks the scope of the capital improvements plan and argues that the plan was not fashioned to further the court’s

remedial goals.6
The district court found that the capital improvements program “is a proper remedy through which to remove the vestiges of racial segregation, and is needed to attract non-minority students back to the KMCSD.” Order of November 12, 1986, slip op. at 4. Moreover, because unconstitutional segregation was in part responsible for the decay of KCMSD’s buildings, capital improvements were necessary to restore *1305 the victims to their rightful place. Id.
[7] The State argues that the district court strayed from the dictates of Milliken II by failing to show that the State’s constitutional violations caused the condition which the capital improvement programs were meant to remedy. It argues that the decay in KCMSD’s schools occurred because KCMSD was unable to raise funds for maintenance from its taxpayers, and the district court made no findings that the voting by KCMSD voters was discriminatory, or that the State is legally responsible for the voting patterns. Thus, according to the State, the district court required it to remedy problems of decay that were not caused by the State’s constitutional violations.
There are ample findings supporting the district court’s conclusion that the State is partly to blame for the decay of KCMSD’s facilities. The district court found that the State by its constitutional violations and failure to remove the vestiges of the dual school system “contributed to, if not precipitated, an atmosphere which prevented the KCMSD from raising the necessary funds to maintain its schools.” Order of November 12, 1986, slip op. at 4. It had earlier found that such lack of maintenance was “further evidence of the detrimental effects that segregation has had on this school district’s ability to raise adequate resources.” 639 F.Supp. at 41.
The State argues that the lack of funding of KCMSD is simply independent action of the voters of KCMSD for which the State may not be liable. But there is support in the record for the court’s findings that segregation and the failure to remove the vestiges of the dual school system contributed to the atmosphere preventing KCMSD from raising necessary funds. The findings of fact demonstrate a spiraling effect of white children leaving KCMSD schools and KCMSD’s white constituency withdrawing its financial support from the system. This process eventually caused the decay of KCMSD’s school buildings, which in turn fed the cycle.7
Further, this argument advanced by the State attacks an aspect of the court’s findings that was merely an alternative basis for its conclusion. The district court also found:
The improvement of school facilities is an important factor in the overall success of this desegregation plan. Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan.
639 F.Supp. at 40. Even absent the findings that the State contributed to causing the decay, the capital improvements would still be required both to improve the education available to the victims of segregation as well as to attract whites to the schools.
In Jenkins I, we held that the district court’s findings were sufficient to support its conclusion that capital improvements are necessary for successful desegregation. 807 F.2d at 685. We specifically recognized the findings that “conditions which impede the creation of a good learning climate * * * reduce the effectiveness of the quality education components contained in this plan.” Id. (quoting Order of June 14, 1985 at 34).
Similarly, in Liddell VII, 731 F.2d at 1318–19, we affirmed an order requiring the State to pay one-half of the cost of a capital improvements program necessary to restore city facilities to a constitutionally *1306 acceptable level. The State filed a petition for certiorari directed to this issue, which was denied.8 See Petition for Certiorari at 24–28, Missouri v. Liddell, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).
[8] The State further argues that the facility improvements are more than is necessary to carry out the educational components of the desegregation plan. However, the district court found that the overall condition of the school buildings “adversely affects the learning environment and continues to discourage parents who might otherwise enroll their children in the KCMSD.” 672 F.Supp. at 403. The district court catalogued the poor conditions prevailing in KCMSD’s school buildings.

Id.; 639 F.Supp. at 39–40. Certainly defective lighting, inadequate heating, stench from toilet facilities, and other conditions affecting the appearance of the schools and comfort of the students affect not only the quality of education that may be obtained there, but also whether parents will withdraw their children from such schools or reenroll them there.
Finally, the State attacks certain aspects of the capital improvements plan as extravagant. We have examined the many instances the State points out and conclude there was substantial testimony demonstrating the justification for these portions of the plan. We mention only one example of the State’s objections. The State objected to a 25 acre farm and 25 acre wildland area that had been ordered for the magnet schools. State’s Brief at 56. However, a similar twenty-three acre museum and laboratory in a science program at Shawnee Mission South High School in Shawnee Mission, Kansas (which lies approximately a mile to the west of the southern portion of KCMSD) was recently commended by Secretary of Education William J. Bennett. James Madison High School, A Curriculum for American Students 34 (1987). The findings of the district court demonstrate that the capital improvements program is essential to assure the quality of education and future success of the magnet schools necessary to remedy the constitutional violations in KCMSD.
From materials that have been filed with us concerning the financial needs of the KCMSD, it is apparent that the capital improvements plan that we affirm today does not cover all expenditures that may be necessary between now and the 1991–92 school year, specifically some $16 million for land acquisition and asbestos removal costs. We are informed by the postargument filings that KCMSD’s bond issue has been sold, and that the net proceeds are in the hands of the district. Presumably, these funds will produce substantial interest income before all will be expended in the renovation and construction program. The State is entitled to a determination of the extent of its liability through the 1991–92 fiscal year, and we conclude that the approximately $150,000,000 which is the State’s share of capital improvements should be the limit of its contribution for capital expenditures for that period. When the second phase of the capital improvements program is to be considered, we hope that the parties will be able to agree upon a further plan. If they are not, the district court will then be in position to evaluate the success of the program that we have affirmed today and determine what further steps are necessary to remedy the constitutional violations and what further contributions from the State may be required. We observe that the present estimate of the phase two capital improvement program is in the $200 to $300 million range. Any issues regarding this program will simply have to be resolved in the future, as more information is developed.
III.
[9] The State also argues that the capital improvements ordered by the district court violate the eleventh amendment “by *1307 requiring payment measured by past activities.” In the State’s view, the orders measure liability and require payments on the basis of actions taken “at a time when [the State] was under no court-imposed obligation to conform to a different standard.” Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662 (1974). The State contends that the capital improvements orders are therefore “little different, in practical terms, from a requirement that the State pay over to the KCMSD all the funds that the district would have raised from successful [tax or bond] proposals,” State’s Brief at 50, or “an order to pay the KCMSD for the lost value of the deteriorated buildings.” State’s Brief at 26. Relying principally on Edelman, 415 U.S. at 668, 94 S.Ct. at 1358; Papasan v. Allain, 478 U.S. 265, 106 S.Ct. 2932, 2942, 92 L.Ed.2d 209 (1986); and Miener v. Missouri, 673 F.2d 969, 982 (8th Cir.), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982), the State concludes that the capital improvements orders are an award of retroactive relief, barred by the eleventh amendment.
This argument is without merit. The orders for capital improvements were made necessary in large part by the State’s past actions, e.g., Jenkins, 672 F.Supp. at 403, and the extent of relief ordered was “determined by the nature and scope of the constitutional violation[s],” Milliken II, 433 U.S. at 280, 97 S.Ct. at 2757, including the State’s past violations, e.g., Jenkins, 672 F.Supp. at 403. The orders nonetheless operate prospectively “to wipe out continuing conditions of inequality” produced by Kansas City’s dual school system and are therefore valid under the eleventh amendment. Milliken II, 433 U.S. at 290, 97 S.Ct. at 2762. Specifically, the capital improvements orders require the State to participate with the school district in funding planned renovation and construction projects which the district court determined, in findings we uphold today, to be necessary to remedy the continuing effects of state-imposed segregation in Kansas City. See id. at 289–90, 97 S.Ct. at 2761– 62; Swann, 402 U.S. at 15, 91 S.Ct. at 1275–76. The relief granted to the school children in the form of improved physical facilities is wholly prospective in nature, requiring “payment of state funds * * * as a necessary consequence of compliance in the future with a substantive federal question determination * * *.” Edelman, 415 U.S. at 668, 94 S.Ct. at 1358, quoted in Milliken II, 433 U.S. at 289, 97 S.Ct. at 2762. The relief is readily distinguishable from the award of retroactive payments for withheld disability benefits in Edelman, 415 U.S. at 663–64, 94 S.Ct. at 1355–56, the claim for restoration of a depleted trust

corpus and lost income in Papasan, 106 S.Ct. at 2942, or the claim for compensatory educational services under the Education of the Handicapped Act, 20 U.S.C. §§ 1401–1485 (1982), in Miener, 673 F.2d at 982. The eleventh amendment does not bar the capital improvements ordered by the district court.
An argument essentially identical to the State’s was rejected by the Supreme Court in Milliken II, 433 U.S. at 288–90, 97 S.Ct. at 2761–62. The State attempts to distinguish Milliken II by arguing that the program involved there was “narrowly tailored to the needs of particular students and necessary to the successful movement of students from minority schools to desegregated schools,” whereas the programs involved here “simply make up for all the cumulative effects of past neglect.” This argument is in essence a restatement of the State’s position that the capital improvements ordered by the district court are not necessary to achieve desegregation—a position which we have already rejected on the basis of the district court’s findings.
IV.
[10] The State also argues that the district court erred in its allocation of costs between KCMSD and the State. In Jenkins I, 807 F.2d at 684–86, we determined that the district court order apportioning costs should be modified to reflect our decision in Liddell VII that funding be equally divided between the State and the school district, because the order contained no findings regarding the relative responsibility *1308 of the State and KCMSD for these costs. 807 F.2d at 684, 685. The State argues that this determination of 50–50 responsibility should continue to govern.
Following our earlier decision, the district court gave further consideration to the allocation of costs, particularly with reference to magnet schools. The district court recognized that the State had created the dual school system, and that KCMSD was required to implement this system under Missouri law. It observed that both the State and KCMSD had failed to eliminate the vestiges of this system. The court reasoned that “the person who starts the fire has more responsibility for the damages caused than the person who fails to put it out.” Order of July 6, 1987, slip op. at 13. The court observed that the Missouri Supreme Court had adopted the Uniform Comparative Fault Act in Gustafson v. Benda, 661 S.W.2d 11 (Mo.1983) (en banc). Order of July 6, 1987, slip op. at 14. The district court also noted KCMSD’s inability to fund more than twentyfive percent of the costs of the entire remedial plan. Id. at 14. The court therefore concluded that the State was responsible for seventy-five percent of the costs of desegregation, and KCMSD for twenty-five percent.9
Allocation of costs is part of the remedial power of the district court. United States v. Bd. of School Commissioners, 677 F.2d 1185, 1186 (7th Cir.), cert. denied, 459 U.S. 1086, 103 S.Ct. 568, 74 L.Ed.2d 931 (1982). Our earlier order did not foreclose the district court’s further consideration of the issue, and we are satisfied that the district court did not abuse its discretion in making this allocation, nor was its factual determination as to percentages of fault clearly erroneous. We have in other desegregation cases approved varying percentages of contribution, including allocating to the state 100 percent of the costs in certain portions of the plans. Little Rock School Dist. v. Pulaski County Special School Dist. No. 1, 778 F.2d 404, 435–36 (8th Cir.1985); Little Rock School Dist., 839 F.2d at 1306–09. Other courts have similarly placed more than 50 percent of the cost on the State. See, e.g., Bradley v. Milliken, 540 F.2d 229, 246 (6th Cir.1976), aff’d, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (seventy-five percent of the cost of purchasing school buses placed on state). The district court was aware of the serious limitations on KCMSD’s capability of raising revenue. Its observation that the State has adopted a comparative fault system had substantial relevance in its determination. We affirm the allocation of costs based upon the further findings of the district court and conclude that our earlier decision en banc did not bar such determinations.
V.
The orders of the district court raising the KCMSD property tax levy and imposing a state income tax surcharge are targets of the State’s appeal and an appeal filed by Jackson County, Missouri. The county’s appeal is directed particularly to the temporary restraining order and preliminary injunction requiring its officials to collect the property tax levy, and the permanent injunction entered on January 7, 1988. We have also accepted numerous amicus briefs on this issue.10
*1309 In addressing the funding of KCMSD’s share of the remedy, the district court found “that the KCMSD is unable with

its present resources to raise revenues to fund its share of the costs assessed under the desegregation orders.” Jenkins, 672 F.Supp. at 411. The court also found that “[t]he KCMSD has exhausted all available means of raising additional revenue, including presenting a bond issue in 1987 and tax levy increase proposals to the voters in four separate elections in 1986 and 1987.” Id. The court noted that it had encouraged the Missouri General Assembly to consider legislation affording the district more versatility to raise funds to support a desegregation program, and found that such legislation had been introduced, was received unfavorably, and ultimately failed. Id. The court concluded that it had explored all the alternatives set forth in Liddell VII, 731 F.2d at 1319–23, and that it was “left with no choice but to exercise its broad equitable powers and enter a judgment that will enable the KCMSD to raise its share of the cost of the plan * * *.” Jenkins, 672 F.Supp. at 411.
The district court ordered the property tax levy to be increased to $4 per $100 assessed valuation through the 1991–92 fiscal year, and authorized KCMSD to issue $150,000,000 in capital improvement bonds, to be retired within twenty years. Id. at 413.11 In its October 27, 1987 order, it earmarked the proceeds of the property tax increase for retirement of capital improvements bonds, with any excess to be used to fund other desegregation costs. At the end of the 1991–92 fiscal year, only that portion of the increase necessary to maintain payments on the bonds was to remain in effect until either the bonds were retired or other provisions were adopted to insure retirement. Order of October 27, 1987, slip op. at 2.
The district court also imposed a 1.5 percent surcharge on income of residents and non-residents of KCMSD subject to the Missouri State Income Tax “for work done, services rendered and business or other activities conducted within the KCMSD.” Jenkins, 672 F.Supp. at 412. The State Department of Revenue was required to collect the tax, and KCMSD was required to publish legal notice of the increase. Those legally responsible for withholding the state income tax are also required to withhold the surcharge. The court initially designated the revenue for use to retire capital improvement bonds, but removed this limitation in its October 27 order.
The court based its power to order tax increases and bond issuances to remedy constitutional violations on Liddell VII, 731 F. 2d at 1322, and Griffin v. School Bd., 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964). Jenkins, 672 F.Supp. at 411–12.
The State and amici argue that the district court exceeded its judicial authority in imposing the property tax increase and income tax surcharge, invaded legislative authority in doing so, and violated the Tenth Amendment, the doctrine of separation of powers, and principles of comity. In addition, they attack this court’s en banc decision in Liddell VII, argue that later decisions limit it, and urge distinctions between the issues presented in this case and the Supreme Court’s holding in Griffin.
A.
[11] We first deal with a number of general arguments offered by the State and amici, based on the constitutional foundations of judicial power. They first offer an historical argument, relying on a number of The Federalist Papers, particularly number 78, which states that “[t]he judiciary * * * has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.” The Federalist No. 78 (A. Hamilton) (H. Lodge ed. 1888). While Hamilton stressed the weakness of the judiciary, we do not believe The Federalist advocates judicial impotence. Hamilton also stated that *1310 the complementary limitations on legislative authority “can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Id.
For the most part the arguments of the State and amici either ignore the constitutional violations that the district court found and we have affirmed, or would render the courts powerless to redress such violations. The judiciary’s power to determine the rights and liabilities of parties in cases arising under the Constitution and laws of the United States is beyond question, and this power is without purpose if it does not carry with it the power to determine a remedy. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 162–63, 166–67, 176–80, 2 L.Ed. 60 (1803).
We may also dismiss summarily the State’s related arguments based on the tenth amendment and the principle of separation of powers. These doctrines simply have no bearing on the district court’s options in enforcing its judgment. In Milliken II, 433 U.S. at 291, 97 S.Ct. at 2762–63, the Supreme Court rejected the argument that a school desegregation remedy violated the tenth amendment, stating: “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by

a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” The Court has likewise stated that “the separation-of-powers principle * * * has no applicability to the federal judiciary’s relationship to the States.” Elrod v. Burns, 427 U.S. 347, 352, 96 S.Ct. 2673, 2679, 49 L.Ed.2d 547 (1976) (plurality opinion by Brennan, J.).
The State’s argument on principles of federal/state comity is a matter of more concern to us, but we will deal with it as we discuss the specific issues before us.
B.
[12] This panel does not write on a clean slate with respect to the property tax issue. The court en banc has held that “the district court’s broad equitable powers to remedy the evils of segregation include a narrowly defined power to order increases in local tax levies on real estate. Limitations on this power require that it be exercised only after exploration of every other fiscal alternative.” Liddell VII, 731 F.2d at 1320.
We enumerated in Liddell VII three inquiries necessary in determining whether fiscal alternatives are unavailable or insufficient to finance a desegregation order: first, what amount of money is necessary to fund the order; second, whether the school board is able with its resources to fund its share of the costs; and third, whether the school board has considered alternative sources of revenue, such as the submission of a referendum or legislative authorization for the board to impose other taxes. Finally, if such alternatives fail and the board and the State as joint tortfeasors are unable to agree on an alternative method of funding, then the district court must conduct an evidentiary hearing and enter a judgment sufficient to cure the constitutional violations found. Id. at 1323.
The district court in this case carefully followed the requirements of Liddell VII. See Jenkins, 672 F.Supp. at 411. Voluminous materials were filed with the court before entry of the order, and the parties specifically waived their right to an evidentiary hearing on this issue. In 1986 and 1987 KCMSD submitted four levy increase and one bond referenda, all of which failed, and unsuccessfully sought legislative authorization for additional funding methods.12 This fully satisfies Liddell, and we should require no more. We do not agree with the dissent’s suggestion that we place the entire funding burden on the State under the principle of joint and several liability, leaving the State to its contribution remedy. This would simply prolong the controversy, rather than resolving this already lengthy litigation, and would, in the *1311 end, meet the same obstacle the district court faced—the fact that KCMSD’s contribution can only come from additional taxes or authorization of new sources of revenue.
Liddell VII explored in detail the support for its conclusion that a district court may order a property tax increase in such circumstances, including Griffin v. School Bd. and United States v. Missouri, 515 F.2d 1365 (8th Cir.) (en banc), cert. denied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975). In Griffin, the Supreme Court held that a district court could enjoin county authorities from paying tuition grants and giving tax credits while its public schools remained closed to avoid desegregation and, “if necessary to prevent further racial discrimination, require the Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system * * * like that operated in other counties in Virginia.” 377 U.S. at 233, 84 S.Ct. at 1234. In United States v. Missouri, three St. Louis suburban school districts were consolidated and the tax rate for the consolidated district was set at the rate of the higher of the three districts. 515 F.2d at 1371–73. There, we “also acknowledged the district court’s remedial power to require a tax levy in excess of that authorized by the voters.” Liddell VII, 731 F.2d at 1320 (citing United States v. Missouri, 515 F.2d at 1371–72).13
The State and amici primarily attack Liddell VII by raising questions about its underpinnings, particularly by arguing that Griffin and United States v. Missouri only authorize a court to order the levy of taxes that have already been authorized by state law or to invalidate state action taken in resistance to a desegregation order.
The decision of the court en banc in Liddell VII is the law of this circuit, binding on this panel, and requires that we affirm the district court’s order with respect to the property tax increase. Liddell VII analyzed decisions cited by the parties in support of their arguments that the district court lacks power to order a property tax increase, including Evans v. Buchanan, 582 F.2d 750 (3d Cir.1978) (en banc), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278, reh’g denied, 447 U.S. 916, 100 S.Ct. 3004, 64 L.Ed.2d 865 (1980), which it determined to support its ruling,14 and San Antonio Independent School District

v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), which it distinguished. Liddell VII, 731 F.2d at 1321–22. Following the decision in Liddell VII, the State of Missouri filed a petition for certiorari raising the propriety of the holding on property taxes, and the petition was denied. Leggett v. Liddell, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).
Judge Clark’s order may thus be affirmed solely on the basis of Liddell VII.15 It is not necessary, however, that we do so, for even without relying on Liddell VII, we believe that the district court’s property tax, as modified in this opinion, is within the proper limits on its remedial powers.
Among the several sources of funds available to KCMSD under Missouri law, only the tax on real and personal property located within the district is under the school board’s control. Substantial limitations *1312 are placed on this tax by the state constitution and statutes. The tax levy is limited to $1.25 per $100 of assessed valuation, but a majority of voters may approve a levy of $3.75 per $100. Mo. Const. art. X, §§ 11(b), 11(c). Any increase above the rate of $3.75 requires approval by two-thirds of the voters. Mo. Const. art. X, § 11(c). Any school construction or repair bonds must also be approved by two-thirds of the voters. Mo.Rev.Stat. § 164.151 (1986).
These requirements, particularly the two-thirds vote, have had substantial impact upon KCMSD’s financial resources. On June 20, 1969, the district submitted a levy increase of $3.05 above the constitutional $1.25 limit, for a total of $4.30. This was approved by 53 percent of the voters, but failed as it lacked a two-thirds majority. Shortly thereafter, on July 1, 1969, the voters approved by a 63 percent vote a $2.50 increase to make a total levy of $3.75. This increase required only a simple majority and is the last to date approved by the necessary percentage of KCMSD voters. Some six levy increases were submitted between 1970 and 1983. Four received the approval of a simple majority, but all six failed to receive the required two-thirds approval.16
Exhibits before the district court in Jenkins I reveal that between 1974 and 1982 the levy varied between $4.05 and $3.80. In Jenkins I, 807 F.2d at 686, we observed that the levy in KCMSD was $3.43 per $100. The district court order presently before us finds that the levy has been reduced to $2.05. Jenkins, 672 F.Supp. at 413. This substantial reduction of the levy is due to the operation of additional restrictions imposed by state law.
Missouri’s Proposition C was adopted by initiative on November 2, 1982. Proposition C allocates one cent on the dollar of the state sales tax to the School District Trust Fund, Mo.Rev.Stat. §§ 144.700–.701 (1986), to be distributed in accordance with Mo.Rev.Stat. § 163.087 (1986). It reduces the total operating levy in each school district to decrease the revenue received by an amount equal to 50 percent of the previous fiscal year’s sales tax receipts. Mo.Rev.Stat. § 164.013 (Supp. 1987).17 In addition, the Hancock Amendment, also adopted by initiative, 1980 Mo.Laws 629, mandates revision of levy rates so that the same amount of tax revenue, adjusted for inflation, will be produced from existing property after reassessment as was produced in the previous year. Mo. Const. art. X, §§ 16–24; Mo.Rev.Stat. § 137.073 (1986). State-wide reassessment of real estate has been required under Mo.Rev.Stat. § 137.115 (Supp.1987), and the total assessed valuation of property in KCMSD increased from approximately $1.2 billion in 1983 to nearly $1.8 billion in 1987.
These changes in state law have imposed a unique fiscal disadvantage on KCMSD, depriving it of the benefit of increases in assessed valuation and diverting nearly one-half of the sales taxes collected in the district to other parts of the state. An exhibit before the district court demonstrated that sales tax collections within KCMSD were $31.2 million, of which only $14.6 million were allocated to KCMSD for school use. As no other funding has been forthcoming, the levy reductions mandated by the Proposition C sales tax and reassessment rollbacks have caused the dramatic reduction of KCMSD’s levy to its present level of $2.05. The laws of Missouri have thus erected a complicated structure restricting KCMSD’s ability to increase its levy and fund its share of the desegregation remedy.
*1313 Thus, state law so narrowly circumscribes KCMSD’s ability to raise money that, if forced to operate within these limits, the district court would lack power to implement a remedy. The Supreme Court has made it clear that state law limitations cannot hinder a district court from remedying constitutional violations. In North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1285–86, 28 L.Ed.2d 586 (1971), Chief Justice Burger, writing for a unanimous Court, stated that “if a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.” See also Milliken I, 418 U.S. at 744, 94 S.Ct. at 3127. “We have likewise held in ordering implementation of a school integration plan that ‘the remedial power of the federal courts under the Fourteenth Amendment is not limited by state law.’ ” United States v. Missouri, 515 F.2d at 1372–73 (quoting Haney v. County Bd. of Educ., 429 F.2d 364, 368 (8th Cir.1970)).

Moreover, this general supremacy principle applies in cases concerning state tax laws as well as any other type of state laws. The Supreme Court’s citation of Griffin to support this general principle shows that the Court does not view Griffin as limiting federal courts’ authority to order taxes to cases where no state law would be violated. In Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823, modified on other grounds sub nom. Washington v. United States, 444 U.S. 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979), a district court’s decree concerning an Indian treaty required state officials to act contrary to state law limitations on their powers. The Supreme Court cited Swann and Griffin in upholding the district court’s powers to order the state officials to take actions contrary to state law:
State-law prohibition against compliance with the District Court’s decree cannot survive the command of the Supremacy Clause of the United States Constitution. It is also clear that [the state] parties to this litigation * * * may be ordered to prepare a set of rules that will implement the Court’s interpretation of the rights of the parties even if state law withholds from them the power to do so. E.g., North Carolina Board of Education v. Swann, 402 U.S. 43 [91 S.Ct. 1284]; Griffin v. County School Board, 377 U.S. 218 [84 S.Ct. 1226].
Id. at 695 (other citations omitted). In Washington State, as in this case, there was no suggestion that state law restrictions had been adopted to evade the court’s remedial orders.
With these precedents, we must reject the State’s arguments that the district court’s power to raise property taxes under Griffin is limited to cases in which the taxes have been authorized under state law or the state law limitations on a school district’s taxing authority are enacted to prevent implementation of a desegregation order.
KCMSD has admitted that it violated the Constitution by failing to remove the vestiges of the segregated school system. The district’s only method for raising funds is the property tax. Although KCMSD’s assessed property value per pupil is higher than that of any other school district in the area, Jenkins I, 807 F.2d at 686, its levy of $2.05 was the lowest in Jackson County. With these considerations and under the precedent of the Supreme Court in Griffin, Swann, and Washington State, and this court in Liddell VII and United States v. Missouri, the district court did not err or abuse its discretion in ordering that the KCMSD property tax levy be increased to allow the district to fund its share of the desegregation remedies. In doing so, it followed clear authority that restrictions and limitations of state law which impede the disestablishing of a dual school system may be set aside to remedy the constitutional violations.
The State and amici argue vigorously that the actions of the district court violate the right of the people to vote on an increase in their property taxes. Our holding *1314 in United States v. State of Missouri, 515 F.2d at 1372–73, rejected that argument. We have recently addressed similar concerns in Little Rock School Dist., where we stated that “[t]he right most prominently involved here is the right to a public education free of racial discrimination. That right ‘may not be submitted to vote; [it] depend[s] on the outcome of no elections.’ ” 839 F.2d at 1303 (quoting West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185–86, 87 L.Ed. 1628 (1943)). In Haney v. County Bd. of Educ., 410 F.2d 920 (8th Cir.1969), we specifically rejected the argument that orders in a desegregation case were limited by state law requiring consent of the electorate, stating that “ ‘[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.’ ” 410 F.2d at 926 (quoting Lucas v. Forty–Fourth Gen. Assembly of Colo., 377 U.S. 713, 736–37, 84 S.Ct. 1459, 1473, 12 L.Ed.2d 632 (1964)).
[13] While we affirm the actions that the court has taken to this point, as we deal with an on-going remedy we think it appropriate to consider the procedures which the district court should use in the future. It is here that the arguments of the State and amici concerning principles of federal/state comity have their proper application, as we have expressed a desire to use minimally obtrusive methods to remedy constitutional violations. See Liddell VII, 731 F.2d at 1319–23; United States v. Missouri, 515 F.2d at 1372–73. State law currently requires the KCMSD board to submit its proposed levy to the collection authorities of Jackson County. Mo.Rev.Stat. § 164.011.2 (Supp.1987). Deference should be given to the views of concerned state and local officials and to the working of local tax collection procedures to the extent that they appear compatible with the goals to be achieved. United States v. Missouri, 515 F.2d at 1373. We believe a preferable method for future funding of KCMSD’s obligation under the district court’s desegregation orders is to authorize the school board to submit a proposed levy to the collection authorities adequate to fund its budget, including its share of the cost of the desegregation programs ordered by the district court. County and state authorities should then be enjoined from applying those Missouri constitutional and statutory limitations that would limit or reduce the levy below the amount submitted by the school board.
However, the levy must be subject to some reasonable limitation, taking into consideration rates in neighboring areas. See United States v. Missouri, 515 F.2d at 1372–73. There are several possible approaches for such a limitation. One would be to

allow the highest levy approved by any district in Jackson County, which in this case is Lee’s Summit with a levy of $4.77. Another approach would be to allow a combination of the highest levies for operating expenses and bonded indebtedness ever approved by KCMSD voters. A third approach would be to allow the average of the highest two or three levies in Jackson County. The levy must, of course, be sufficient to fund the necessary desegregation programs, and we believe that it is best to leave the selection of an appropriate limitation to the district court’s discretion.18
Permitting the school board to determine the amount of its levy (subject to reasonable limits) will give maximum consideration to the views of state and local officials and is least disruptive of existing state laws and procedures. The KCMSD board and county and state officials will be allowed to perform their functions as required by state law. In addition, the district court will be removed from the process of setting the levy, and limited solely to establishing the maximum limit and enjoining enforcement of those provisions of Missouri law that prevent KCMSD from raising the money to remedy the constitutional violations. Obviously, the parties can bring before the district court any objections or problems that may arise in implementing this plan.
Finally, we observe that the district court’s October 27, 1987 order provided that the property tax increase would be reduced at the end of the 1991–92 fiscal *1315 year to generate only the amount necessary to retire the capital improvement bonds, approximately $14.9 million per year. In view of our reversal of the income tax surcharge (and unless new revenue sources are authorized), the increased property tax will be the only revenue source available to fund the desegregation expenses ordered by the district court. Accordingly, the ordered reduction of the property tax cannot be automatically implemented at the end of the 1991–92 fiscal year, and the district court must then evaluate further funding requirements.
[14] One issue remains for determination, and that is Jackson County’s appeal from the district court’s January 7, 1988 order entering a permanent injunction against county officials to collect the property tax. On October 17, 1987, the district court entered a preliminary injunction against the county, holding that it was necessary to carry out the purpose of its lawful authority, and citing Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958), and Faubus v. United States, 254 F.2d 797 (8th Cir.), cert. denied, 358 U.S. 829, 79 S.Ct. 49, 3 L.Ed.2d 68 (1958). The court also rejected the county’s claim that the Tax Injunction Act, 28 U.S.C. § 1341 (1982), prevented it from entering such an order.
This court has already rejected the county’s anti-injunction act argument in denying its petition for a writ of prohibition. In re Jackson County, 834 F.2d 150 (8th Cir.1987). The county’s argument that it has no connection with the underlying controversy because it is not a party and therefore should not be subject to the injunction is without merit. County officials are entrusted by law with the collection of taxes levied by local school districts. Here the district court entered an order that such taxes be increased and the county refused to adjust the 1987 school tax levy accordingly. The Supreme Court has made clear that “nonparties that interfere with the implementation of court orders establishing public rights may be enjoined.” Washington State, 443 U.S. at 692 n. 32, 99 S.Ct. at 3078 n. 32. The county’s arguments are utterly lacking in merit and the district court’s order enjoining county officials to collect the property tax is affirmed.
C.
[15] The income tax surcharge ordered by the district court involves substantially different considerations. As we have seen, the property tax is the established source of revenue for Missouri school districts, and the basic effect of the district court’s order was to set aside levy limitations on this taxing authority. The order with respect to the income tax surcharge is an entirely different matter. The district court defined the precise scope of the surcharge, its effective date, and set forth procedures for its collection by the State and delivery to KCMSD. See Jenkins 672 F.Supp. at 412. We are satisfied that the district court invaded the province of the legislature in ordering this surcharge, and that the order is beyond the power of the district court as outlined in Swann, 402 U.S. at 45, 91 S.Ct. at 1285–86; Griffin, 377 U.S. at 233, 84 S.Ct. at 1234; Liddell VII, 731 F.2d at 1319–23; and United States v. Missouri, 515 F.2d at 1371–73.
Those decisions authorize the district court to set aside restrictions or limitations imposed by state law that impede the disestablishment of a dual school system, with appropriate deference to local tax collection procedures and the views of concerned state and local officials. The income tax surcharge fails on both counts. Rather than merely removing the levy limitation on an existing state or local taxing authority, the income tax surcharge restructures the State’s scheme of school financing and creates an entirely new form of taxing authority. We believe the district court has exceeded its authority in ordering the collection of school district revenue from an entirely new source, with all funds delivered to one district for a

specified purpose.19 While this income tax surcharge was part of the legislative program KCMSD developed and submitted to the State General Assembly,20 none of the parties *1316 to this litigation seriously urged the district court to adopt it as part of a judicial remedy.
We accordingly reverse that part of the district court’s order imposing the income tax surcharge. Any unexpended collections must be refunded and the district court is directed to take such action as it deems appropriate with respect to any further refunds. We caution that the constitutional violations must be remedied and the remedies fully funded. Any refund orders must be crafted recognizing this fundamental principle.
D.
[16] In our earlier en banc opinion we made clear that the remedy ordered by the district court must be fully funded. Jenkins I, 807 F.2d at 686. Should the funds that KCMSD can provide for desegregation expenses under today’s decision fall short, the remainder must be paid by the State, as the orders of the district court have imposed joint and several liability on the State and KCMSD.21 See notes 3 & 4, supra. See also Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260 & n. 8, 99 S.Ct. 2753, 2756 & n. 8, 61 L.Ed.2d 521 (1979); Watts v. Laurent, 774 F.2d 168, 179 (7th Cir.1985), cert. denied, 475 U.S. 1095, 106 S.Ct. 1466, 89 L.Ed.2d 722 (1986).
The funding provisions that we have affirmed today will continue until further order by the district court, or until KCMSD is able to fund its share of the desegregation remedy or the legislature has made other sources of revenue available for this purpose.
VI.
[17] The Jenkins class and KCMSD appeal from the district court’s denial of the class’ motion to have Kansas students included as participants in the KCMSD magnet plan. The district court declined to order KCMSD to educate residents of another state, with the State of Missouri paying the costs. The court found that inclusion of Kansas students would be unduly complex. We find no abuse of the district court’s discretion in declining to order Missouri to pay to educate residents of another state. As the district court noted, this ruling does not preclude Kansas school districts from participating in a voluntary interdistrict transfer agreement with KCMSD.
VII.
[18] Jackson County, Missouri and Icelean Clark, et al., a group of individual and corporate taxpayers, appeal the district court’s October 27, 1987 order denying their applications to intervene as of right.22 The county filed a renewed motion to intervene on October 7, 1987 and the Clark group moved to intervene on September 25, 1987 to challenge the funding orders of the district court. The district court denied the motions as untimely.
Rulings on the timeliness of applications to intervene are committed to the sound discretion of the district court and will not be disturbed on review absent an abuse of that discretion. NAACP v. New York, 413 U.S. 345, 365–66, 93 S.Ct. 2591, 2602– 03, 37 L.Ed.2d 648 (1973); Arkansas Elec. Energy v. Middle South Energy, Inc., 772 F.2d 401, 403 (8th Cir.1985). Timeliness is determined from all the circumstances, NAACP v. New York, 413 U.S. at 366, 93 S.Ct. at 2603, but three factors receive particular attention: “ ‘how far the proceedings have gone when the movant seeks to intervene, prejudice which resultant delay might cause to other parties, and the reason for the delay,’ ” Arkansas Elec. Energy, 772 F.2d at 403 (quoting Nevilles v. EEOC, 511 F.2d 303, 305 (8th Cir.1975) (per curiam) (citations omitted)).
*1317 Applying the analytical framework set forth in Nevilles, the district court ruled that the Clark group’s September 25, 1987 motion and the county’s October 7, 1987 motion were untimely because the court had already determined how

KCMSD’s portion of the desegregation plan would be funded in its September 15, 1987 order; the appellants had ample opportunity to file timely applications; and intervention at this late stage of the proceedings would unduly delay implementation of the remedy to which the members of the Jenkins class are entitled. Having carefully reviewed the record, we are satisfied that the district court did not err in so ruling.
The Clark group argues that their delay in seeking intervention should be excused because they did not have “actual or constructive notice of the District Court’s ultimate taxation scheme” before entry of the September 15, 1987 order, and that dismissal of their motion to intervene in such circumstances constitutes a denial of due process. While “absence of knowledge may, under certain circumstances, excuse delay in attempting to intervene,” the burden of demonstrating lack of knowledge rests with the persons seeking intervention. EEOC v. Westinghouse Elec. Corp., 675 F.2d 164, 165 (8th Cir.1982) (per curiam); Nevilles, 511 F.2d at 305. The taxpayers have not met this burden. In its June 14, 1985 order, the district court discussed its power to raise taxes to fund the desegregation remedy and enjoined Missouri’s “Proposition C” tax levy rollback. Jenkins, 639 F.Supp. at 44–45. The court again enjoined the rollback on August 25, 1985, and in its July 6, 1987 order the district court made clear its intention to fund KCMSD’s portion of the remedy through either an earnings tax or state income tax surcharge. These orders were regularly reported by the local news media. Taken together, the orders were more than sufficient to inform the taxpayers of the status of the suit and put them on notice that their interests would be affected by the district court’s funding orders. In particular, local property owners in the Clark group had already been affected by the orders enjoining the tax levy rollback. On this basis, the district court did not abuse its discretion in concluding that the taxpayers’ motion to intervene was untimely. Cf. NAACP v. New York, 413 U.S. at 366–67, 93 S.Ct. at 2603–04; EEOC v. Westinghouse, 675 F.2d at 166; Nevilles, 511 F.2d at 306. As the taxpayers had fair notice of the action and were allowed to participate as amici curiae by the district court, their due process argument is also without merit.
Jackson County argues that its motion was timely because it originally sought to intervene in an application filed on April 15, 1985, which “made the district court aware of its interest in any order dealing with tax increases” well before the September 15, 1987 funding order. While the county’s April 15, 1985 motion was filed with the district court, there is no proof that the motion was served on the parties, as Fed.R.Civ.P. 24(c) requires. The certificate of service accompanying the motion is not signed and none of the parties filed responses to the motion or otherwise indicated that they had received it. Thereafter, for a period of nearly two and one-half years, the county failed to take any action to intervene until the filing of its October 7, 1987 motion. During this period, as we have said, the district court issued a series of highly publicized orders which gave the county, like the taxpayers, ample notice of the course of the action and the fact that the county’s interest as local property tax collector would be affected by the district court’s funding orders. The county’s two and one-half year delay in pursuing its motion to intervene was sufficient to justify the district court in treating the motion as having been filed on October 7, 1987 and ruling it untimely on that basis. See McCarthy v. Kleindienst, 741 F.2d 1406, 1415–16 (D.C.Cir.1984).
The district court did not err in denying the motions of the Clark group and Jackson County to intervene.23
*1318 VIII.
We affirm the judgment of the district court with respect to the scope of the remedy. We also affirm its orders with respect to the property tax, but remand for further modifications as provided in this opinion. We reverse the judgment of the district court with respect to the income tax surcharge and stay any further collection. Finally, we affirm the order of the district court denying the motions of the Clark group and Jackson County to intervene.
LAY, Chief Judge, concurring and dissenting.
I generally concur in the opinion of the court. I take one major exception to the opinion. The district court found that the liability of the parties should be apportioned seventy-five percent for the state and twenty-five percent for the school district, but specifically held that liability was based upon a finding of joint and several tortfeasors.
The state appealed the apportionment of liability to this court. However, it has never appealed the district court’s original judgment of joint and several liability. I do not fault counsel because it would be difficult absent a divisible injury under traditional legal principles to dispute the validity of such a holding.

This court’s opinion has appropriately discussed how the state has “so narrowly circumscribe[d] KCMSD’s duty to raise money” and that as a partial result therefrom it is a practical reality that the school district cannot fully contribute to the funding of the remedial program to meet constitutional compliance. Under the circumstances traditional legal principles apply. I would simply hold that under a judgment of joint and several liability that upon failure of one tortfeasor to comply with the judgment because of financial inability to fund the remedial plan that any other tortfeasor may be liable for the whole. As the Supreme Court indicated in Edmonds, cited in the court’s opinion, quoting from the Second Restatement of Torts:
A tortfeasor is not relieved of liability for the entire harm he caused just because another’s negligence was also a factor in effecting the injury. “Nor are the damages against him diminished.” Restatement, [Second] supra, § 879, Comment a. Likewise, under traditional tort law, a plaintiff obtaining a judgment against more than one concurrent tortfeasor may satisfy it against any one of them. Id., § 886. A concurrent tortfeasor generally may seek contribution from another, id., § 886A, but he is not relieved from liability for the entire damages even when the nondefendant tortfeasor is immune from liability. Id., § 880. These principles, of course, are inapplicable where the injury is divisible and the causation of each part can be separately assigned to each tortfeasor. Id., §§ 433A(1) and 881.
Edmonds, 443 U.S. at 260–61 n. 8, 99 S.Ct. at 2756 n. 8.
I do not doubt the constitutional authority of the district court as approved in Liddell VII to exercise the remedial order necessary to bring about constitutional compliance. However, a judicial decree requiring increase in local levies on real estate and the imposition of a property tax should “be exercised only after exploration of every other fiscal alternative.” Liddell VII, 731 F.2d at 1320. Thus, I do not feel that it was necessary for the district court or feasible for this court to approve a property tax levy by KCMSD to meet its fiscal responsibility. Where other alternatives remain, it is the very essence of judicial restraint not to go beyond the relief necessary. The State of Missouri should therefore pay for any amount KCMSD is unable to contribute, failing existing means by KCMSD to raise the monies in order to effectuate constitutional compliance. The state may under existing law seek contributions from the KCMSD but this problem is between the parties and not for the court. I therefore would set aside the property tax levy ordered by the district court and use existing legal principles to effect constitutional compliance by holding the state liable for any deficiency KCMSD cannot contribute under the plan.
ON REHEARING EN BANC
BOWMAN, Circuit Judge, joined by WOLLMAN, Circuit Judge, dissenting from the denial of rehearing en banc. This is a case of exceptional importance. The remedies ordered go far beyond anything previously seen in a school desegregation case. The sheer immensity of the programs encompassed by the district court’s order—the large number of magnet schools and the quantity of capital renovations and new construction—are concededly *1319 without parallel in any other school district in the country. Similarly, in no other case has federal judicial power been used to imposes a tax increase in order to provide funding for a desegregation remedy.
In addition, the case presents the overarching question of whether these court-ordered programs and court-ordered taxes are Constitutionally required in order to rectify the vestigial effects of legally mandated segregation (dead now for over thirty years) or instead represent an unsupportable exercise of judicial power in a legislative-style attempt to solve social problems that have their origins in other causes.
In over five years on the bench, I have not seen a case more deserving than this one of thoughtful consideration by the entire Court. The decision as it stands appears to arrogate to the federal judiciary vast powers that under the Tenth Amendment are reserved to the states or to the people. I therefore regret that a majority of the Court has voted to deny the petitions for rehearing en banc.
All Citations
855 F.2d 1295, 12 Fed.R.Serv.3d 298, 48 Ed. Law Rep. 1154

Footnotes

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

This appeal raises the propriety of some thirteen district court orders: those of June 16 and November 12, 1986,

April 29, July 6, August 19, August 24, September 15, October 27, and November 13, 16, and 23, 1987, January

7, 1988, and March 1, 1988.

3

The principal orders instituting the magnet schools plan were that of June 16, 1986, calling for expenditure of

$12,972,727, of which the state was liable for $6,665,634, slip op. at 19; and November 12, 1986, calling for

expenditure of $142,736,025, of which the State was solely liable for $89,877,724 and jointly and severally liable

with KCMSD for the remainder. Slip op. at 6.

4

The court ordered expenditure of $12,877,330 for capital improvements in its order of June 16, 1986, all of which

was to be paid by the State, slip op. at 15; $52,858,301 in its order of November 12, 1986, for which the State and

KCMSD were jointly and severally liable, slip op. at 5; $7,376,135 in its order of April 29, 1987, for which the State

and KCMSD were jointly and severally liable, slip op. at 3; $353,061 in its order of July 7, 1987, slip op. at 12; and

$187,450,334 in its order of September 15, 1987, for which the State and KCMSD were jointly and severally

liable, with equal contribution, 672 F.Supp. at 408. Capital improvements ordered earlier have already been

afﬁrmed. Jenkins I, 807 F.2d at 685.

5

We asked the parties to provide agreed upon statistics for the number of children residing in the KCMSD who

attend private schools, but they were unable to do so. Nevertheless, we are able to take notice of census ﬁgures

on this subject for the City of Kansas City, though we realize its boundaries are not coterminous with those of the

KCMSD. Census ﬁgures for 1980 show that about 17 percent of the school age children in Kansas City, Missouri

are in private schools. U.S. Dept. of Commerce, Bureau of the Census, 1980 Census of Population, General

Social and Economic Characteristics, Missouri 27–12 (1983). They further indicate that about 71 percent of the

total Kansas City, Missouri population is white, U.S. Dept. of Commerce, Bureau of the Census, 1980 Census of

Population and Housing, Advance Estimates of Social, Economic and Housing Characteristics, Missouri 27–61

(1983), and that about 60 percent (56,486) of the children ages 5–18 in Kansas City are white and about 37

percent (34,874) are black, see U.S. Dept. of Commerce, Bureau of the Census, 1980 Census of Population,

General Population Characteristics, Missouri 27–54 (1982). The record in this case indicates that the KCMSD

enrollment was approximately 68.3 percent black in 1985. See Order of June 14, 1985, slip op. at 31.

6

The State also attacks the goals of the capital improvements plan. Since the capital improvements plan serves

the same remedial goals as the magnet school plan, our magnet school discussion answers the State’s

arguments.

7

The Jenkins class argues that there was systematic refusal by taxpayers to vote levy increases or bond issues

“dating from precisely the moment when the school district became majority black.” Jenkins Brief at 20. They

further argue that the black wards tended to give highest voter percentages in favor of revenue measures. The

record tends to support these arguments, but as the district court did not base its ﬁndings of fact and conclusions

of liability on this theory, we need say no more.

8

We recognize that the Supreme Court has on a number of occasions commented on the lack of precedential

value of such denials. See generally L. Stern, E. Gressman & S. Shapiro, Supreme Court Practice (6th ed. 1987)

§ 5.7. On the other hand, we have earlier commented that such denials “cannot be overlooked.” Wells v. Meyer’s

Bakery, 561 F.2d 1268, 1275 (8th Cir.1977).

9

With respect to the capital improvement plan the district court found that because the improvements have a useful

life of 30 to 50 years, the costs should be shared evenly. 672 F.Supp. at 408.

10

Briefs opposing the taxes were ﬁled by the United States; a group of Kansas City area taxpayers who are paying

the newly ordered taxes; the State of Kansas, whose argument was directed only to the income tax surcharge;

the Washington Legal Foundation, Senator John Danforth, and two members of the Missouri House of

Representatives; 56 rural Missouri school districts; the Missouri Association of Rural Educators, whose argument

attacked primarily the scope of the relief ordered and the amount of state funds diverted to the district by the

court’s order; and the National Association of Independent Insurers, which objected only to the income tax

surcharge imposed on insurance premiums received from business conducted in the KCMSD area. Briefs

supporting the taxes were ﬁled by the Lawyers Committee for Civil Rights, the NAACP, and the Civic Council of

Greater Kansas City.

8

We recognize that the Supreme Court has on a number of occasions commented on the lack of precedential

value of such denials. See generally L. Stern, E. Gressman & S. Shapiro, Supreme Court Practice (6th ed. 1987)

§ 5.7. On the other hand, we have earlier commented that such denials “cannot be overlooked.” Wells v. Meyer’s

Bakery, 561 F.2d 1268, 1275 (8th Cir.1977).

9

With respect to the capital improvement plan the district court found that because the improvements have a useful

life of 30 to 50 years, the costs should be shared evenly. 672 F.Supp. at 408.

10

Briefs opposing the taxes were ﬁled by the United States; a group of Kansas City area taxpayers who are paying

the newly ordered taxes; the State of Kansas, whose argument was directed only to the income tax surcharge;

the Washington Legal Foundation, Senator John Danforth, and two members of the Missouri House of

Representatives; 56 rural Missouri school districts; the Missouri Association of Rural Educators, whose argument

attacked primarily the scope of the relief ordered and the amount of state funds diverted to the district by the

court’s order; and the National Association of Independent Insurers, which objected only to the income tax

surcharge imposed on insurance premiums received from business conducted in the KCMSD area. Briefs

supporting the taxes were ﬁled by the Lawyers Committee for Civil Rights, the NAACP, and the Civic Council of

Greater Kansas City.

11

The bonds require an annual debt service for principal and interest of approximately $14.9 million per year.

12

See footnotes 16 and 20, infra.

13

The court in Liddell VII found further support for its reasoning in a number of Supreme Court decisions ordering

municipalities to levy and collect taxes for satisfying their contractual obligations, and rejecting arguments that

state law restrictions on the power to tax prevented them from doing so. 731 F.2d at 1322. The court also relied

on numerous decisions based on state law that municipalities may not avoid their liability in tort by pleading

constitutional or statutory debt limitations. Id.

14

Like Evans, 582 F.2d at 780, Plaquemines Parish School Bd. v. United States, 415 F.2d 817, 833–34 (5th Cir.

1969), which is also cited by the State, recognized and upheld the power of the district court to enter an injunction

requiring the State to make funds available to the school board to pay for the desegregation plan drawn by the

district court.

15

The amici point to the opinions of dissenting judges in Liddell VII. We must ﬁrst observe that the entire court,

including the dissenting judges, is bound by this court’s en banc decision in Liddell VII. Further, the dissents did

not imply that a district court should be left powerless to enforce remedial orders, as the amici propose. See, e.g.,

731 F.2d at 1332 (Gibson, J., concurring and dissenting).

16

Levy increases were also submitted on February 4, 1986, August 5, 1986, November 4, 1986, and March 31,

1987, the last three containing separately submitted issues for earmarked usage such as salary increases, bond

retirement, and desegregation expenses. Only one of the eight submitted issues required approval by two-thirds,

but all failed of passage.

17

The statute provides exclusions for sales tax revenue attributable to pupils residing on federal lands, and an

amount necessary to maintain the commissions of county ofﬁcials and county funds under Mo.Rev.Stat. § 50.338

(1986). The statute also provides that if a district fails to reduce its operating levy in compliance with this section,

state aid under Mo.Rev.Stat. § 163.031 (1986) will be reduced in an equivalent amount.

18

We recognize that there may be some circumstances in which the district court could justiﬁably ﬁnd that KCMSD

did not have sufﬁcient resources to fully fund the apportionment we have afﬁrmed today of the desegregative

costs, and if it so ﬁnds, we do not preclude the district court from placing the remainder of the burden on the

State. See Part V, Section D, supra, and footnote 21. It is our intent that KCMSD contribute its share, subject to

these considerations.

19

Heretofore the State of Missouri has seen ﬁt to place no limitations on its income tax revenue; it is payable into

the general treasury of the State.

20

Legislation was introduced in the 1987 session of the House of Representatives, H.B. 757, to give school districts

the authority to impose a sales tax up to ½ cent on individual earnings and business proﬁts tax on residents and

non-residents earning income or proﬁts within the district and/or a surcharge of up to 25 percent on residents’

state income tax, increasing the present tax rate from 6 percent to 7.5 percent. Further, any such tax increases

could be approved by a simple majority. The KCMSD board proposed and supported this legislation. The

legislation failed.

21

While we have rejected the argument urged by a number of the amici and adopted by the dissent that under this

principle all costs should be borne by the State, the State does have an obligation to pay any required sums

which are beyond the capacity of the school district.

22

The district court also denied the applications of the county and the Clark group for permissive intervention, but

20

Legislation was introduced in the 1987 session of the House of Representatives, H.B. 757, to give school districts

the authority to impose a sales tax up to ½ cent on individual earnings and business proﬁts tax on residents and

non-residents earning income or proﬁts within the district and/or a surcharge of up to 25 percent on residents’

state income tax, increasing the present tax rate from 6 percent to 7.5 percent. Further, any such tax increases

could be approved by a simple majority. The KCMSD board proposed and supported this legislation. The

legislation failed.

21

While we have rejected the argument urged by a number of the amici and adopted by the dissent that under this

principle all costs should be borne by the State, the State does have an obligation to pay any required sums

which are beyond the capacity of the school district.

22

The district court also denied the applications of the county and the Clark group for permissive intervention, but

these rulings have not been appealed.

23

We are also satisﬁed that if the district court erred in denying intervention, the error was harmless. The district

court granted members of the Clark group permission to participate as amici, and they have ﬁled an amicus brief

with this court challenging the funding orders and have participated in oral argument. The taxpayers have thus

been granted the opportunity to challenge the funding orders, see Arkansas Elec. Energy, 772 F.2d at 404, and

their challenge is based on questions of law which they can adequately present as amici, see Blake v. Pallan, 554

F.2d 947, 955 (9th Cir.1977). The county has simply failed to overcome the presumption that its interests are

adequately represented by the State. See, e.g., Environmental Defense Fund v. Higginson, 631 F.2d 738, 740

(D.C.Cir.1979) (per curiam).

 
 862 F.2d 677 United States Court of Appeals,
Eighth Circuit.
Kalima JENKINS, by her friend Kamau AGYEI; Carolyn Dawson, by her 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, Sheila Turrentine; Gregory A. Pugh, by his next friend, David Winters, on behalf of themselves and
all others similarly situated; Appellees, and
American Federation of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Members of the Missouri Board of Education, Arthur L. Mallory, Commissioner of Education of the State of
Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City Mantel & Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; Linda Frazier; Rick Feierabend; Linda Hollenbeck; James Hollenbeck; Susan Horseman; and Clifford M. Horseman, Jackson County, Missouri.
No. 88–1698. |
Submitted Sept. 19, 1988. |
Decided Dec. 1, 1988.
Synopsis State of Missouri appealed from an order of the United States District Court for the Western District of Missouri, Russell G. Clark, J., awarding attorney fees in the Kansas City school desegregation case. The Court of Appeals, John R. Gibson, Circuit Judge, held that district court did not err by including in the award services rendered for activities in Kansas City school district tax levy elections, based on finding that such activity was not “political activity” and therefore compensable under the Civil Rights Attorney Fee Awards Act.
Affirmed.
See also, 8th Cir., 838 F.2d 260.
Attorneys and Law Firms
*677 Michael J. Fields, Asst. Atty. Gen., Jefferson City, Mo., for appellants.
Arthur A. Benson, II, Kansas City, Mo., and Russel E. Lovell, II, Des Moines, IA., for appellees.
Before LAY, Chief Judge, HEANEY and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.

The State of Missouri appeals an order of the district court1 awarding fees in the Kansas City, Missouri School District (KCMSD) litigation. The sole issue before us is whether the district court erred by including in the attorney fee award services rendered by Arthur Benson and his staff for their activities in the Kansas City *678 school district levy elections. The district court found that the work expended by Benson and his staff on the levy election activity was not “political activity” and therefore compensable under the Civil Rights Attorneys Fees Awards Act, 42 U.S.C. § 1988. We affirm.
We recognized in our earlier opinion, Jenkins v. State of Missouri, 855 F.2d 1295 (8th Cir.1988), that before a district court could consider whether taxes should be levied to fund the school desegregation remedy there must be an “exploration of every other fiscal alternative.” Id. at 1310 (citing Liddell v. Missouri, 731 F.2d 1294, 1320 (8th Cir.1984)). To comply with this requirement, the KCMSD submitted levy increases to its electorate on four occasions between early 1986 and early 1987. The Jenkins class of students, the primary beneficiaries of the desegregation plan, organized an effort to secure passage of these measures. The KCMSD electorate defeated all four measures and the district court later ordered full funding of its remedy, including a court ordered tax levy. The Jenkins class then sought for its counsel an award of attorney fees and expenses incurred during the 1986–87 school year. The district court awarded the Jenkins class a portion of the fees and expenses it requested, including the hours expended by Benson and that of paralegals spent working on levy elections.
The state resisted the award of fees for services rendered on the levy election, contending that such services are, as a matter of law, political activities. The district court rejected this argument, holding that Benson did not hold a political office and was not seeking to secure political advantage in a future election. The district court further concluded that a condition to granting fiscal relief by the court was exploration of funding alternatives and that “[t]herefore, the hours spent by Mr. Benson and his staff on the levy election was aimed at avoiding the necessity of this court’s intervention, and despite the levy’s failure, these efforts were expended pursuant to the procedures set forth in Liddell and thus are compensable under 42 U.S.C. § 1988.”
The state now asserts this same argument on appeal, particularly relying on Daggett v. Kimmelman, 811 F.2d 793 (3rd Cir. 1987). In Daggett, the court held that section 1988 imposed no obligation to compensate counsel’s efforts expended in partisan negotiations and proceedings for congressional reapportionment, because of the “extraordinary political machinations and implications” of such activities. Id. at 801. Daggett, however, considered the issue of reapportionment to be fundamentally political, while in this case Benson’s services were in furtherance of educational funding and in no way secured political advantage in a future election. Although the Jenkins class used a political mechanism, the levy elections, to achieve their goal of funding the desegregation remedy, the submission of the levy increase was a necessary condition to seeking further court ordered relief. We therefore conclude that work in the levy election was not “political” as defined in Daggett.
The state also argues that efforts by the Jenkins class on behalf of the levy elections were not necessary because the KCMSD, not the Jenkins class, submitted the levy proposals to the voters. Although we recognize that attorney time is not compensable unless it is “reasonably expended on the litigation,” Webb v. Board of Education of Dyer County, 471 U.S. 234, 242, 105 S.Ct. 1923, 1928, 85 L.Ed.2d 233 (1985), we do not believe that Benson and his staff’s services were unnecessary. The Jenkins class initiated the litigation which ultimately led to the district court’s remedy and funding order, and Benson’s efforts in attempting to secure passage of the tax levy was a prerequisite to the funding remedy. Furthermore, it was not the sole responsibility of the KCMSD to support the *679 levy. The Jenkins class, who stood to benefit from the increased funding, performed a valuable and not unexpected role in the levy elections. While the work performed involved the election process, it was to further the goals sought in litigation, and was related to the conditions for further court intervention enumerated by this court.
Finally, the state argues that Benson and his staff’s activities are not compensable because their efforts were unsuccessful. This argument is frivolous. Had the levy passed, the need for court action as to funding would have been lessened, if not made altogether unnecessary. The failure of the tax levy, however, was a prerequisite to the efforts by the Jenkins class to obtain court ordered funding. While the efforts to pass the levy were not successful, the Jenkins class achieved their ultimate goal of attaining court ordered funding. See Hensley v. Eckerhart, 461 U.S. 424, 430–32, 103 S.Ct. 1933, 1937–39, 76 L.Ed. 2d 40 (1983).
Accordingly, we affirm the district court’s order awarding attorney fees to Benson and his staff for services rendered in the levy elections.

All Citations 862 F.2d 677, 50 Ed. Law Rep. 691

Footnotes

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

 
 1989 WL 299246 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE of MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
Jan. 3, 1989.
Attorneys and Law Firms
Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., and Russell E. Lovell, Des Moines, Iowa, for plaintiffs.
Shirley Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and Allen R. Snyder, Hogan & Hartson, Washington, D.C., for KCMSD.
Bartow Farr, III, Onek, Klein & Farr, Washington, D.C. and Michael Fields, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Michael Gordon, Jolley, Walsh, Hager & Gordon, Kansas City, Mo., for intervenor Amer. Fed. of Teachers.
ORDER
RUSSELL G. CLARK, District Judge.
*1 Before the Court are intervenors’ motion to recover full refund of Court-ordered income tax surcharge and plaintiffs’ motion for full refund of income tax surcharge. Intervenors’ and plaintiffs’ motions will be granted. The Missouri Department of Revenue’s proposed surcharge refund process will be approved as modified in this order and the Missouri Department of Revenue shall complete the surcharge refund process within 120 days from the date of this order, with the exception of requests received thereafter. Also before the Court is the KCMSD’s motion for approval of a revised drawdown procedure and the State’s motion for modification of program account and for KCMSD refund of tax proceeds. The KCMSD’s motion will be granted as modified in this order and the State’s motion will be granted in part as modified in this order and denied in part. Additionally, before the Court is the KCMSD’s motion for approval of a maximum property tax levy rate. The KCMSD’s motion will be denied without prejudice.
To enable the KCMSD to meet its share of the costs of the desegregation plan, this Court imposed a 1.5% income tax surcharge on “salaries, wages, commissions and all other compensation and income subject to the Missouri State Income Tax for work done, services rendered and business or other activities conducted within the KCMSD.” Jenkins v. State of Missouri, 672 F.Supp. 400, 412 (W.D.Mo.1987). However, the Eighth Circuit reversed this Court’s imposition of the income tax surcharge and stated that “[a]ny unexpended collections must be refunded and the district court is directed to take such action as it deems appropriate with respect to any further refunds.” Jenkins v. State of Missouri, 855 F.2d 1295, 1316 (8th Cir.1988). Subsequent to the Eighth Circuit’s reversal, taxpayers Eleanor Graham, et al., were granted leave to intervene and filed a motion to recover full refund of the income tax surcharge. Additionally, plaintiffs filed a motion for full refund of the income tax surcharge. A hearing was held regarding the income tax surcharge refund on December 8, 1988. The KCMSD and the State did not oppose a full refund of the income tax surcharge. The Court is convinced that all income tax surcharge collections should be fully refunded. Therefore, intervenor’s motion to recover full refund of Court-ordered income tax surcharge and plaintiffs’ motion for full refund of income tax surcharge will be granted.
The mechanics of an income tax surcharge refund were discussed at the December 8 hearing. All parties have deferred to the

Missouri Department of Revenue to determine the most efficient method of making the surcharge refund. At the December 8 hearing, the Court stated that “it is going to be pretty much the responsibility of the Department of Revenue, their expertise and responsibility, to get the refund made, and certainly [they] have some experience in collecting the tax as well as making the refunds” and “[t]he Court certainly is inclined to approve whatever they want to make a refund.” (Tr. at 27, 30). Subsequently, the State filed a proposed refund procedure recommended by the Missouri Department of Revenue. The Court will approve the proposed refund procedure as modified below.
*2 Refunds for 1987 surcharge collections will be issued directly to individual and corporate taxpayers whose net amount of income tax surcharge paid can be verified by the Missouri Department of Revenue from records in its possession by reference to the KC–1 (individual) or KC–2 (corporate) form filed by the taxpayer.
Taxpayers who did not file a 1987 KC–1 form with the Missouri Department of Revenue will be issued a refund upon filing the KC–1 form with the Missouri Department of Revenue with a copy of the taxpayer’s 1987 W–2 form attached for withholding verification. In order to inform taxpayers who did not file a KC–1 or KC–2 form for 1987 of the right to a refund of surcharge collections, the Missouri Department of Revenue shall give legal notice by publication as required by Missouri statutory law of the refund and the refund process. Additionally, the Court strongly encourages the Missouri Department of Revenue to take any other actions reasonably necessary to give notice of the right to a refund to taxpayers who did not file a KC–1 or KC–2 form for 1987. Such actions may consist of press releases, published advertisements containing a KC–1 or KC–2 form for 1987 that can be sent to the Department of Revenue to obtain a refund or sending a copy of the 1987 KC–1 and KC–2 forms with tax refunds.
All surcharge amounts withheld for employees by employers during 1988 will be refunded by check mailed to the employer for the total amount withheld by that employer for all employees. Employers will make the refund payment directly to the employees. These amounts will be determined from records in the possession of the Missouri Department of Revenue.
Individuals who have made quarterly surcharge payments for 1988 will receive the amount remitted via a refund check mailed directly to the taxpayer. The Missouri Department of Revenue will determine these amounts from its records. Individuals who make estimated payments and are also employees subject to withholding will receive two separate payments, one by check from the Missouri Department of Revenue for the estimated declaration payments and one payment from their employer for the amount withheld by the employer. Refunds to corporations for estimated declarations paid as determined by Missouri Department of Revenue records will be accomplished by refund check mailed from the Missouri Department of Revenue to the corporate taxpayer.
All refund checks returned to the Missouri Department of Revenue by the postal system will be handled by the Department of Revenue in the same manner as the Missouri State Income Tax postal return refund checks.
The Missouri Department of Revenue has indicated that the refund process could be completed within 120 days of its initiation, with the exception of requests for refunds that are received thereafter, and has requested that the refund process be implemented after January 1, 1989. Therefore, the Missouri Department of Revenue shall complete the income tax surcharge refund process within 120 days from the date of this order, with the exception of requests received thereafter.
*3 The KCMSD filed a motion for approval of a revised drawdown procedure arguing that the Eighth Circuit’s reversal of the income tax surcharge imposed by this Court has caused the current drawdown procedure to become inadequate. The State countered with a motion for modification of program account and for KCMSD refund of tax proceeds. Although the Eighth Circuit reversed this Court’s imposition of the 1.5% income tax surcharge, the Eighth Circuit continued by stating: “We caution that the constitutional violations must be remedied and the remedies fully funded. Any refund orders must be crafted recognizing this fundamental principle.” Jenkins, 855 F.2d at 1316. Recognizing that the constitutional violation remedies must be fully funded, the Court will modify the existing program account and drawdown procedures as set forth below.
The cap on the existing program account will be increased to $11 million, without regard to the KCMSD’s desegregation revenues, and the State will be required to meet this cap on or before January 15, 1989, and on the first day of each month thereafter. The KCMSD shall pay all Court-ordered desegregation expenses as incurred with all available desegregation revenues and the State will be required to pay the balance of the remaining expenses from the program account as a jointly and severally liable party. Once the KCMSD’s desegregation funds available during a given month have been depleted as expenditures occur, including funds needed to satisfy desegregation expenses to be funded 100% by the KCMSD, the KCMSD will draw from the program account to cover the remaining expenditures for that month. Interest on any unused money in the account will be credited to the State.

On or before the 15th day of each month, beginning in February of 1989, the KCMSD shall develop a reconciliation statement identifying actual expenditures from the account and interest on the account accrued to the State for the prior month, which will set the amount of the State’s deposit on or before the first day of the next month in order to reinstate the $11 million cap. In addition, on or before the 15th day of each month beginning in February of 1989, the KCMSD shall provide the State with a statement of the KCMSD’s desegregation revenues actually received and all Court-ordered desegregation expenses actually incurred in the prior month. In any case in which the KCMSD anticipates that the following month’s expenditures from the account will exceed the balance in that account, the KCMSD shall provide written notification of such to the State on or before the 15th day of the prior month. Absent further Court order to the contrary, the State shall deposit the amount necessary to fund such additional costs on or before the first day of the month in which they are projected to occur.
The State filed a motion seeking to require the KCMSD to contribute $5,274,962.00 toward the full refund of the income tax surcharge collections. Apparently the KCMSD is willing to contribute $21,642,147.00 toward the refund, which is the amount of unexpended desegregation revenues from both the income tax surcharge and the Court-ordered increase in the property tax levy rate the KCMSD had available on August 19, 1988. However, the KCMSD is willing to make such a contribution only so long as a revised drawdown procedure is approved by the Court which includes State funding of the amount necessary to cover desegregation expenditures incurred after August 18, 1988. The KCMSD has been using the $21,642,147.00 of unexpended desegregation revenues to fund desegregation expenditures incurred after August 18, 1988. Ordinarily the Court would require the KCMSD to contribute $21,642,147.00 to the income tax surcharge refund. However, in the current situation such a requirement would actually consist of only accounting entries. The KCMSD has used the desegregation revenues to fund desegregation expenditures subsequent to August 18, 1988. If the KCMSD was ordered to contribute such funds to the State for the surcharge refunds, the KCMSD would have no funds with which to pay the desegregation costs. Due to the joint and several liability of the KCMSD and the State for desegregation expenditures, the State would have to fund all desegregation costs the KCMSD cannot pay through the modified program account and revised drawdown procedure previously set forth in this order. Therefore, it would be useless for the Court to order the KCMSD to make a contribution to the State for the surcharge refund. The KCMSD shall use any currently unexpended portions of the $21,642,147.00 of desegregation revenues to fund desegregation costs prior to the implementation of the modified program account and revised drawdown procedure required on or before January 15, 1989. Any unexpended portions remaining at the date of the implementation of the modified program account and revised drawdown procedure shall be treated by the KCMSD the same as any other KCMSD desegregation revenues.
*4 The KCMSD filed a motion for approval of a maximum property tax levy rate of $4.23 per $100 of assessed valuation pursuant to the Eighth Circuit’s opinion in Jenkins, 855 F.2d at 1308–1315. Plaintiffs and the State did not oppose the KCMSD’s motion. An amicus curiae brief was filed in opposition to the KCMSD’s motion by a group of rural Missouri school districts. The Court is convinced that the property tax rate for 1988 should not be increased from $4.00 to $4.23. Such action would require supplemental billing by Jackson County, Missouri, that would lead to increased taxpayer resentment and also be time consuming and expensive. Nonetheless, in the alternative, the KCMSD has urged the Court to approve a $4.23 property tax levy rate for 1989. However, the Court believes that current approval of a $4.23 property tax rate for 1989 would be premature. The 1989 property tax levy rate should be set at a later date when the KCMSD’s financial picture for the 1989– 1990 school year is much clearer. Therefore, the KCMSD’s motion for approval of a maximum property tax levy rate will be denied without prejudice. The KCMSD School Board should approve a property tax levy rate for 1989 at a later date when financial calculations for the 1989–1990 school year are clear and submit the proposed levy rate to the Court for approval at that time.
Accordingly, it is hereby
ORDERED that intervenor’s motion to recover full refund of Court-ordered income tax surcharge and plaintiffs’ motion for full refund of income tax surcharge are granted; and it is further
ORDERED that the Missouri Department of Revenue’s proposed surcharge refund process is approved as modified in this order and the Missouri Department of Revenue shall complete the surcharge refund process within 120 days from the date of this order, with the exception of requests received thereafter; and it is further
ORDERED that the KCMSD’s motion for approval of a revised drawdown procedure is granted as modified in this order; and it is further

ORDERED that the State’s motion for modification of program account and for KCMSD refund of tax proceeds is granted in part as modified in this order and denied in part; and it is further ORDERED that the KCMSD’s motion for approval of a maximum property tax levy rate is denied without prejudice.
All Citations Not Reported in F.Supp., 1989 WL 299246

 
 864 F.2d 1454 United States Court of Appeals,
Eighth Circuit. Kalima JENKINS, etc., et al., Appellees,
v. The STATE OF MISSOURI, et al., Appellants. Nos. 86–1934, 86–2537, 87–1479, 87–2299, 87–2300, 87–2565, 87–2588, 87–2589 and 88–1073WM.
| Jan. 10, 1989.
Appeals from the United States District Court for the Western District of Missouri; Russell G. Clark, Judge. Prior Report: 8th Cir., 855 F.2d 1295.
ORDER This Court’s mandate which was issued on October 14, 1988, is hereby recalled. There are three (3) petitions for rehearing with suggestions for rehearing en banc pending before the Court. It is hereby ordered that the petitions for rehearing and the petitions for rehearing with suggestions for rehearing en banc are denied. This order is entered nunc pro tunc effective October 14, 1988. The Court’s mandate shall now issue forthwith.
All Citations 864 F.2d 1454 (Mem), 51 Ed. Law Rep. 117

 
 109 S.Ct. 2463 Supreme Court of the United States
MISSOURI, et al., Petitioners v.
Kalima JENKINS, by her friend, Kamau AGYEI, et al.
No. 88–64. |
Argued Feb. 21, 1989. |
Decided June 19, 1989.
Synopsis Prevailing plaintiffs in school desegregation case sought recovery of attorney fees. The United States District Court for the Western District of Missouri, Russell G. Clark, J., awarded attorney fees, and appeal was taken. The Court of Appeals for the Eighth Circuit, 838 F.2d 260, affirmed. On grant of certiorari, the Supreme Court, Justice Brennan, held that: (1) Eleventh Amendment did not prohibit enhancement of fee award under Civil Rights Attorney’s Fees Awards Act against state to compensate for delay in payment, and (2) separate compensation award under Civil Rights Attorney’s Fees Awards Act for paralegals, law clerks, and recent law school graduates at prevailing rates was fully in accord with Act.
Affirmed.
Justice O’Connor concurred in part and dissented in part and filed opinion in which Justice Scalia joined and Chief Justice Rehnquist joined in part.
Justice Rehnquist filed dissenting opinion.
Justice Marshall did not participate.
**2464 Syllabus*
*274 In this major school desegregation litigation in Kansas City, Missouri, in which various desegregation remedies were granted against the State of Missouri and other defendants, the plaintiff class was represented by a Kansas City lawyer (Benson) and by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976 (42 U.S.C. § 1988), which provides with respect to such litigation that the court, in its discretion, may allow the prevailing party, other than the United States, “a reasonable attorney’s fee as part of the costs.” In calculating the hourly rates for Benson’s, his associates’, and the LDF attorneys’ fees, the District Court took account of delay in payment by using current market rates rather than those applicable at the time the services were rendered. Both Benson and the LDF employed numerous paralegals, law clerks, and recent law graduates, and the court awarded fees for their work based on market rates, again using current rather than historic rates in order to compensate for the delay in payment. The Court of Appeals affirmed.
Held:
1. The Eleventh Amendment does not prohibit enhancement of a fee award under § 1988 against a State to compensate for delay in payment. That Amendment has no application to an award of attorney’s fees, ancillary to a grant of prospective relief, against a State, Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522, and it follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is an appropriate factor in determining what constitutes a reasonable attorney’s fee under § 1988. Pp. 2466–2469.

2. The District Court correctly compensated the work of paralegals, law clerks, and recent law graduates at the market rates for their services, rather than at their cost to the attorneys. Clearly, “a reasonable attorney’s fee” as used in § 1988 cannot have been meant to compensate only work performed personally by members of the bar. Rather, that term must refer to a reasonable fee for an attorney’s work product, and thus must take into account the work not only of attorneys, but also the work of paralegals and the like. A reasonable attorney’s fee under *275 § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market and one that grants the successful civil rights plaintiff a “fully compensatory fee,” comparable to what “is traditional with attorneys compensated by a fee-paying client.” In this case, where the practice in the relevant market is to bill the work of paralegals separately, the District Court’s decision to award separate compensation for paralegals, law clerks, and recent law graduates at prevailing market rates was fully in accord with § 1988. Pp. 2469–2472.
838 F.2d 260 (CA8 1988), affirmed.
**2465 BRENNAN, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, and KENNEDY, JJ., joined, and in Parts I and III of which O’CONNOR and SCALIA, JJ., joined. O’CONNOR, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, and in which REHNQUIST, C.J., joined in part, post, p. 2472. REHNQUIST, C.J., filed a dissenting opinion, post, p. 2475. MARSHALL, J., took no part in the consideration or decision of the case.
Attorneys and Law Firms
Bruce Farmer, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief were William L. Webster, Attorney General, Terry Allen, Deputy Attorney General, and Michael L. Boicourt and Bart A. Matanic, Assistant Attorneys General.
Jay Topkis argued the cause for respondents. With him on the brief were Julius LeVonne Chambers, Charles Stephen Ralston, Arthur A. Benson II, Russell E. Lovell II, and Theodore M. Shaw.*
* John A. DeVault III filed a brief for the National Association of Legal Assistants, Inc., as amicus curiae urging affirmance.
Opinion
Justice BRENNAN delivered the opinion of the Court.
This is the attorney’s fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, 488 U.S. 888, 109 S.Ct. 218, 102 L.Ed.2d 209 (1988), to resolve two questions relating to fees litigation under 90 Stat. 2641, as amended, 42 U.S.C. § 1988. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work?
*276 I
This litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 7½ months during 1983 and 1984, the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See Jenkins v. Missouri, 807 F.2d 657 (CA8 1986) (en banc), cert. denied, 484 U.S. 816 (1987); Jenkins v. Missouri, 855 F.2d 1295 (CA8 1988), cert. granted, 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1989).
The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP

Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.1 Benson and his associates had devoted 10,875 attorney hours to the litigation, as well as 8,108 hours of paralegal and law clerk time. For the LDF the corresponding *277 figures were 10,854 hours for attorneys and 15,517 hours for paralegals and law clerks. Their fee applications deleted from these totals 3,628 attorney hours and 7,046 paralegal hours allocable to unsuccessful claims against the suburban school districts. With additions for postjudgment monitoring and for preparation of the fee application, the District Court awarded Benson a total of approximately $1.7 million and the LDF $2.3 million. App. to Pet. for Cert. A22–A43.
**2466 In calculating the hourly rate for Benson’s fees the court noted that the market rate in Kansas City for attorneys of Benson’s qualifications was in the range of $125 to $175 per hour, and found that “Mr. Benson’s rate would fall at the higher end of this range based upon his expertise in the area of civil rights.” Id., at A26. It calculated his fees on the basis of an even higher hourly rate of $200, however, because of three additional factors: the preclusion of other employment, the undesirability of the case, and the delay in payment for Benson’s services. Id., at A26–A27. The court also took account of the delay in payment in setting the rates for several of Benson’s associates by using current market rates rather than those applicable at the time the services were rendered. Id., at A28–A30. For the same reason, it calculated the fees for the LDF attorneys at current market rates. Id., at A33.
Both Benson and the LDF employed numerous paralegals, law clerks (generally law students working part time), and recent law graduates in this litigation. The court awarded fees for their work based on Kansas City market rates for those categories. As in the case of the attorneys, it used current rather than historic market rates in order to compensate for the delay in payment. It therefore awarded fees based on hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates. Id., at A29–A31, A34. The Court of Appeals affirmed in all respects. 838 F.2d 260 (CA8 1988).
*278 II
Our grant of certiorari extends to two issues raised by the State of Missouri. Missouri first contends that a State cannot, consistent with the principle of sovereign immunity this Court has found embodied in the Eleventh Amendment, be compelled to pay an attorney’s fee enhanced to compensate for delay in payment. This question requires us to examine the intersection of two of our precedents, Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), and Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986).2
In Hutto v. Finney, the lower courts had awarded attorney’s fees against the State of Arkansas, in part pursuant to § 1988, in connection with litigation over the conditions of confinement in that State’s prisons. The State contended that any such award was subject to the Eleventh Amendment’s constraints on actions for damages payable from a State’s treasury. We relied, in rejecting that contention, on the distinction drawn in our earlier cases between “retroactive monetary relief” and “prospective injunctive relief.” See Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Attorney’s fees, we held, belonged to the latter category, because they constituted reimbursement of “expenses incurred in litigation seeking only prospective relief,” rather than “retroactive liability for prelitigation conduct.” Hutto, 437 U.S., at 695, 98 S.Ct., at 2576; see also id., at 690, 98 S.Ct., at 2573. We explained: “Unlike ordinary ‘retroactive’ relief such as damages or restitution, an award of costs does not compensate the plaintiff for the injury that first brought him into court. Instead, the award reimburses him for a portion of the expenses he incurred in seeking prospective relief.” Id., at 695, n. 24, 98 S.Ct., at 2576, n. 24. Section 1988, we noted, fit easily into the *279 longstanding practice of awarding “costs” against States, for the statute imposed the award of attorney’s fees “as part of the costs.” Id., at 695–696, 98 S.Ct., at 2576, citing Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1927).
**2467 [1] [2] After Hutto, therefore, it must be accepted as settled that an award of attorney’s fees ancillary to prospective relief is not subject to the strictures of the Eleventh Amendment. And if the principle of making such an award is beyond the reach of the Eleventh Amendment, the same must also be true for the question of how a “reasonable attorney’s fee” is to be calculated. See Hutto, supra, 437 U.S., at 696–697, 98 S.Ct., at 2576–2577.
Missouri contends, however, that the principle enunciated in Hutto has been undermined by subsequent decisions of this Court that require Congress to “express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself.” Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985); Welch

v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987). See also Dellmuth v. Muth, 491 U.S. 223, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989); Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). The flaw in this argument lies in its misreading of the holding of Hutto. It is true that in Hutto we noted that Congress could, in the exercise of its enforcement power under § 5 of the Fourteenth Amendment, set aside the States’ immunity from retroactive damages, 437 U.S., at 693, 98 S.Ct., at 2574–75, citing Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and that Congress intended to do so in enacting § 1988, 437 U.S., at 693– 694, 98 S.Ct., at 2574–2575. But we also made clear that the application of § 1988 to the States did not depend on congressional abrogation of the States’ immunity. We did so in rejecting precisely the “clear statement” argument that Missouri now suggests has undermined Hutto. Arkansas had argued that § 1988 did not plainly abrogate the States’ immunity; citing Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973), and Edelman v. Jordan, supra, the State contended that “retroactive liability” could not be imposed on the States “in the absence of an extraordinarily explicit *280 statutory mandate.” Hutto, 437 U.S., at 695, 98 S.Ct., at 2576. We responded as follows: “[T]hese cases [Employees and Edelman ] concern retroactive liability for prelitigation conduct rather than expenses incurred in litigation seeking only prospective relief. The Act imposes attorney’s fees ‘as part of the costs.’ Costs have traditionally been awarded without regard for the States’ Eleventh Amendment immunity.” Ibid.
The holding of Hutto, therefore, was not just that Congress had spoken sufficiently clearly to overcome Eleventh Amendment immunity in enacting § 1988, but rather that the Eleventh Amendment did not apply to an award of attorney’s fees ancillary to a grant of prospective relief. See Maine v. Thiboutot, 448 U.S. 1, 9, n. 7, 100 S.Ct. 2502, 2507, n. 7, 65 L.Ed.2d 555 (1980). That holding is unaffected by our subsequent jurisprudence concerning the degree of clarity with which Congress must speak in order to override Eleventh Amendment immunity, and we reaffirm it today.
[3] Missouri’s other line of argument is based on our decision in Library of Congress v. Shaw, supra. Shaw involved an application of the longstanding “no-interest rule,” under which interest cannot be awarded against the United States unless it has expressly waived its sovereign immunity. We held that while Congress, in making the Federal Government a potential defendant under Title VII of the Civil Rights Act of 1964, had waived the United States’ immunity from suit and from costs including reasonable attorney’s fees, it had not waived the Federal Government’s traditional immunity from any award of interest. We thus held impermissible a 30 percent increase in the “lodestar” fee to compensate for delay in payment. Because we refused to find in the language of § 1988 a waiver of the United States’ immunity from interest, Missouri argues, we should likewise conclude that Title VII is not sufficiently explicit to constitute an abrogation **2468 of the States’ immunity under the Eleventh Amendment in regard to any award of interest.
*281 The answer to this contention is already clear from what we have said about Hutto v. Finney. Since, as we held in Hutto, the Eleventh Amendment does not bar an award of attorney’s fees ancillary to a grant of prospective relief, our holding in Shaw has no application, even by analogy.3 There is no need in this case to determine whether Congress has spoken sufficiently clearly to meet a “clear statement” requirement, and it is therefore irrelevant whether the Eleventh Amendment standard should be, as Missouri contends, as stringent as the one we applied for purposes of the no-interest rule in Shaw. Rather, the issue here—whether the “reasonable attorney’s fee” provided for in § 1988 should be calculated in such a manner as to include an enhancement, where appropriate, for delay in payment—is a straightforward *282 matter of statutory interpretation. For this question, it is of no relevance whether the party against which fees are awarded is a State. The question is what Congress intended—not whether it manifested “the clear affirmative intent ... to waive the sovereign’s immunity.” Shaw, 478 U.S., at 321, 106 S.Ct. at 2965.4
This question is not a difficult one. We have previously explained, albeit in dicta, why an enhancement for delay in payment is, where appropriate, part of a “reasonable attorney’s fee.” In Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987), we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment. But we took care to distinguish that risk from the factor of delay:
“First is the matter of delay. When plaintiffs’ entitlement to attorney’s fees depends on success, their lawyers are not paid until a favorable decision finally eventuates, which may be years later.... Meanwhile, their expenses of doing business continue and must be met. In setting fees for prevailing counsel, the courts have regularly recognized the delay factor, either by basing the award on current rates or by adjusting the fee based on historical rates to reflect its present value. See, e.g., Sierra Club v. EPA, 248 U.S.App.D.C. 107, 120–121, 769 F.2d 796, 809–810 (1985); Louisville Black Police Officers Organization, Inc. v. Louisville, 700 F.2d 268, 276, 281 (CA6 1983). Although delay and the risk of nonpayment are often mentioned **2469 in the same breath, adjusting for the former is a distinct issue.... We do not suggest ... that adjustments for delay are *283 inconsistent with the typical fee-shifting statute.” Id., at 716, 107 S.Ct., at 3082.

[4] [5] The same conclusion is appropriate under § 1988.5 Our cases have repeatedly stressed that attorney’s fees awarded under this statute are to be based on market rates for the services rendered. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986); Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Clearly, compensation received several years after the services were rendered—as it frequently is in complex civil rights litigation—is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private billings.6 We agree, therefore, *284 that an appropriate adjustment for delay in payment—whether by the application of current rather than historic hourly rates or otherwise—is within the contemplation of the statute.
[6] To summarize: We reaffirm our holding in Hutto v. Finney that the Eleventh Amendment has no application to an award of attorney’s fees, ancillary to a grant of prospective relief, against a State. It follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney’s fee under § 1988. An award against a State of a fee that includes such an enhancement for delay is not, therefore, barred by the Eleventh Amendment.
III
Missouri’s second contention is that the District Court erred in compensating the work of law clerks and paralegals (hereinafter collectively “paralegals”) at the market rates for their services, rather than at their cost to the attorney. While Missouri agrees that compensation for the cost of these personnel should be included in the fee award, it suggests that an hourly rate of $15—which it argued below corresponded to their salaries, benefits, and overhead—would be appropriate, rather than the market rates of $35 to $50. According to Missouri, § 1988 does not authorize billing paralegals’ hours at market rates, and doing so produces a “windfall” for the attorney. **2470 7]
*285 [7] We begin with the statutory language, which provides simply for “a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988. Clearly, a “reasonable attorney’s fee” cannot have been meant to compensate only work performed personally by members of the bar. Rather, the term must refer to a reasonable fee for the work product of an attorney. Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit. The parties have suggested no reason why the work of paralegals should not be similarly compensated, nor can we think of any. We thus take as our starting point the self-evident proposition that the “reasonable attorney’s fee” provided for by statute should compensate the work of paralegals, as well as that of attorneys. The more difficult question is how the work of paralegals is to be valuated in calculating the overall attorney’s fee.
[8] The statute specifies a “reasonable” fee for the attorney’s work product. In determining how other elements of the attorney’s fee are to be calculated, we have consistently looked to the marketplace as our guide to what is “reasonable.” In Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), for example, we rejected an argument that attorney’s fees for nonprofit legal *286 service organizations should be based on cost. We said: “The statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be calculated according to the prevailing market rates in the relevant community....” Id., at 895, 104 S.Ct., at 1547. See also, e.g., Delaware Valley, 483 U.S., at 732, 107 S.Ct., at 3090 (O’CONNOR, J., concurring) (controlling question concerning contingency enhancements is “how the market in a community compensates for contingency”); Rivera, 477 U.S., at 591, 106 S.Ct. at 2703 (REHNQUIST, J., dissenting) (reasonableness of fee must be determined “in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a ‘reasonable’ attorney’s fee under § 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys”). A reasonable attorney’s fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i.e., “in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation,” Blum, supra, 465 U.S., at 896, n. 11, 104 S.Ct., at 1547, n. 11, and one that grants the successful civil rights plaintiff a “fully compensatory fee,” Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983), comparable to what “is traditional with attorneys compensated by a fee-paying client.” S.Rep. No. **2471 94–1011, p. 6 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5913.
If an attorney’s fee awarded under § 1988 is to yield the same level of compensation that would be available from the market,

the “increasingly widespread custom of separately billing for the services of paralegals and law students who serve as clerks,” Ramos v. Lamm, 713 F.2d 546, 558 (CA10 1983), must be taken into account. All else being equal, the hourly fee charged by an attorney whose rates include paralegal work in her hourly fee, or who bills separately for the work of paralegals at cost, will be higher than the hourly fee charged by an attorney competing in the same market who bills separately for the work of paralegals at “market rates.” In other words, the prevailing “market rate” for attorney time is not independent of the manner in which paralegal *287 time is accounted for.8 Thus, if the prevailing practice in a given community were to bill paralegal time separately at market rates, fees awarded the attorney at market rates for attorney time would not be fully compensatory if the court refused to compensate hours billed by paralegals or did so only at “cost.” Similarly, the fee awarded would be too high if the court accepted separate billing for paralegal hours in a market where that was not the custom.
We reject the argument that compensation for paralegals at rates above “cost” would yield a “windfall” for the prevailing attorney. Neither petitioners nor anyone else, to our knowledge, has ever suggested that the hourly rate applied to the work of an associate attorney in a law firm creates a windfall for the firm’s partners or is otherwise improper under § 1988, merely because it exceeds the cost of the attorney’s services. If the fees are consistent with market rates and practices, the “windfall” argument has no more force with regard to paralegals than it does for associates. And it would hardly accord with Congress’ intent to provide a “fully compensatory fee” if the prevailing plaintiff’s attorney in a civil rights lawsuit were not permitted to bill separately for paralegals, while the defense attorney in the same litigation was able to take advantage of the prevailing practice and obtain market rates for such work. Yet that is precisely the result sought in this case by the State of Missouri, which appears to have paid its own outside counsel for the work of paralegals at the hourly rate of $35. Record 2696, 2699.9
*288 [9] Nothing in § 1988 requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that § 1988 requires. Where, however, the prevailing practice is to bill paralegal work at market rates, treating civil rights lawyers’ fee requests in the same way is not only permitted by § 1988, but also makes economic sense. By encouraging the use of lower cost paralegals rather than attorneys wherever possible, permitting market-rate billing of paralegal hours “encourages cost-effective delivery of legal services and, by reducing the spiraling cost of civil rights litigation, furthers the policies underlying civil rights statutes.” Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 846 (CA7 1984), cert. denied, **2472 469 U.S. 1106, 105 S.Ct. 780, 83 L.Ed.2d 775 (1985).10
*289 Such separate billing appears to be the practice in most communities today.11 In the present case, Missouri concedes that “the local market typically bills separately for paralegal services,” Tr. of Oral Arg. 14, and the District Court found that the requested hourly rates of $35 for law clerks, $40 for paralegals, and $50 for recent law graduates were the prevailing rates for such services in the Kansas City area. App. to Pet. for Cert. A29, A31, A34. Under these circumstances, the court’s decision to award separate compensation at these rates was fully in accord with § 1988.
IV
The courts below correctly granted a fee enhancement to compensate for delay in payment and approved compensation of paralegals and law clerks at market rates. The judgment of the Court of Appeals is therefore
Affirmed.
Justice MARSHALL took no part in the consideration or decision of this case.
Justice O’CONNOR, with whom Justice SCALIA joins, and with whom THE CHIEF JUSTICE joins in part, concurring in part and dissenting in part.
I agree with the Court that 42 U.S.C. § 1988 allows compensation for the work of paralegals and law clerks at market rates, and therefore join Parts I and III of its opinion. I do not join Part II, however, for in my view the Eleventh Amendment does

not permit enhancement of attorney’s *290 fees assessed against a State as compensation for delay in payment.
The Eleventh Amendment does not, of course, provide a State with across-the-board immunity from all monetary relief. Relief that “serves directly to bring an end to a violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect” on a State’s treasury. Papasan v. Allain, 478 U.S. 265, 278, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986). Thus, in Milliken v. Bradley, 433 U.S. 267, 289–290, 97 S.Ct. 2749, 2761–2762, 53 L.Ed.2d 745 (1977), the Court unanimously upheld a decision ordering a State to pay over $5 million to eliminate the effects of de jure segregation in certain school systems. On the other hand, “[r]elief that in essence serves to compensate a party injured in the past,” such as relief “expressly denominated as damages,” or “relief [that] is tantamount to an award of damages for a past violation of federal law, even though styled as something else,” is prohibited by the Eleventh Amendment. Papasan, supra, **2473 478 U.S., at 278, 106 S.Ct., at 2940. The crucial question in this case is whether that portion of respondents’ attorney’s fees based on current hourly rates is properly characterized as retroactive monetary relief.
In Library of Congress v. Shaw, 478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986), the Court addressed whether the attorney’s fees provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5(k), permits an award of attorney’s fees against the United States to be enhanced in order to compensate for delay in payment. In relevant part, § 2000e–5(k) provides:
“In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the [Equal Employment Opportunity Commission (EEOC) ] or the United States, a reasonable attorney’s fees as part of the costs, and the [EEOC] and the United States shall be liable for costs the same as a private person.”
The Court began its analysis in Shaw by holding that “interest is an element of damages separate from damages on the *291 substantive claim.” 478 U.S., at 314, 106 S.Ct., at 2961 (citing C. McCormick, Law of Damages § 50, p. 205 (1935)). Given the “no-interest” rule of federal sovereign immunity, under which the United States is not liable for interest absent an express statutory waiver to the contrary, the Court was unwilling to conclude that, by equating the United States’ liability to that of private persons in § 2000e–5(k), Congress had waived the United States’ immunity from interest. 478 U.S., at 314–319, 106 S.Ct., at 2961–2964. The fact that § 2000e–5(k) used the word “reasonable” to modify “attorney’s fees” did not alter this result, for the Court explained that it had “consistently ... refused to impute an intent to waive immunity from interest into the ambiguous use of a particular word or phrase in a statute.” Id., at 320, 106 S.Ct., at 2964. The description of attorney’s fees as costs in § 2000e–5(k) also did not mandate a contrary conclusion because “[p]rejudgment interest ... is considered as damages, not a component of ‘costs,’ ” and the “term ‘costs’ has never been understood to include any interest component.” Id., at 321, 106 S.Ct. at 2965 (emphasis added) (citing 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §§ 2664, 2666, 2670 (2d ed. 1983); 2 A. Sedgwick & G. Van Nest, Sedgwick on Damages 157–158 (7th ed. 1880)). Finally, the Court rejected the argument that the enhancement was proper becausethe “no-interest” rule did not prohibit compensation for delay in payment: “Interest and a delay factor share an identical function. They are designed to compensate for the belated receipt of money.” 478 U.S., at 322, 106 S.Ct., at 2965.
As the Court notes, ante, at 2468, n. 3, the “no-interest” rule of federal sovereign immunity at issue in Shaw provided an “added gloss of strictness,” 478 U.S., at 318, 106 S.Ct., at 2963, and may have explained the result reached by the Court in that case, i.e., that § 2000e–5(k) did not waive the United States’ immunity against awards of interest. But there is not so much as a hint anywhere in Shaw that the Court’s discussions and definitions of interest and compensation for delay were dictated by, or limited to, the federal “no-interest” rule. As the *292 quotations above illustrate, the Court’s opinion in Shaw is filled with broad, unqualified language. The dissenters in Shaw did not disagree with the Court’s sweeping characterization of interest and compensation for delay as damages. Rather, they argued only that § 2000e–5(k) had waived the immunity of the United States with respect to awards of interest. See id., at 323–327, 106 S.Ct., at 2966–2968 (BRENNAN, J., dissenting). I therefore emphatically disagree with the Court’s statement that “Shaw ... does not represent a general-purpose definition of compensation for delay that governs here.” Ante, at 2468, n. 3.
Two general propositions that are relevant here emerge from Shaw. First, interest is considered damages and not costs. **2474 Second, compensation for delay, which serves the same function as interest, is also the equivalent of damages. These two propositions make clear that enhancement for delay constitutes retroactive monetary relief barred by the Eleventh Amendment. Given my reading of Shaw, I do not think the Court’s reliance on the cost rationale of § 1988 set forth in Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), is persuasive. Because Shaw teaches that compensation for delay constitutes damages and cannot be considered costs, see 478 U.S., at 321–322, 106 S.Ct., at 2965–2966, Hutto is not controlling. See Hutto, supra, at 697, n. 27, 98 S.Ct., at 2577, n. 27 (“[W]e do not suggest that our analysis would be the

same if Congress were to expand the concept of costs beyond the traditional category of litigation expenses”). Furthermore, Hutto does not mean that inclusion of attorney’s fees as costs in a statute forecloses a challenge to the enhancement of fees as compensation for delay in payment. If it did, then Shaw would have been resolved differently, for § 2000e–5(k) lists attorney’s fees as costs.
Even if I accepted the narrow interpretation of Shaw proffered by the Court, I would disagree with the result reached by the Court in Part II of its opinion. On its own terms, the Court’s analysis fails. The Court suggests that the definitions of interest and compensation for delay set forth in Shaw *293 would be triggered only by a rule of sovereign immunity barring awards of interest against the States: “Outside the context of the ‘no-interest rule’ of federal immunity, we see no reason why compensation for delay cannot be included within § 1988 attorney’s fee awards.” Ante, at 2468, n. 3. But the Court does not inquire about whether such a rule exists. In fact, there is a federal rule barring awards of interest against States. See Virginia v. West Virginia, 238 U.S. 202, 234, 35 S.Ct. 795, 808, 59 L.Ed. 1272 (1915) (“Nor can it be deemed in derogation of the sovereignty of the State that she should be charged with interest if her agreement properly construed so provides”) (emphasis added); United States v. North Carolina, 136 U.S. 211, 221, 10 S.Ct. 920, 924, 34 L.Ed. 336 (1890) (“general principle” is that “an obligation of the State to pay interest, whether as interest or as damages, on any debt overdue, cannot arise except by the consent and contract of the State, manifested by statute, or in a form authorized by statute”) (emphasis added). The Court has recently held that the rule of immunity set forth in Virginia and North Carolina is inapplicable in situations where the State does not retain any immunity, see West Virginia v. United States, 479 U.S. 305, 310–312, 107 S.Ct. 702, 706–707, 93 L.Ed.2d 639 (1987) (State can be held liable for interest to the United States, against whom it has no sovereign immunity), but the rule has not otherwise been limited, and there is no reason why it should not be relevant in the Eleventh Amendment context presented in this case.
As Virginia and North Carolina indicate, a State can waive its immunity against awards of interest. See also Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882–83, 27 L.Ed. 780 (1883). The Missouri courts have interpreted Mo.Rev.Stat. § 408.020 (1979 and Supp.1989), providing for prejudgment interest on money that becomes due and payable, and § 408.040, providing for prejudgment interest on court judgments and orders, as making the State liable for interest. See Denton Construction Co. v. Missouri State Highway Comm’n, 454 S.W.2d 44, 59–60 (Mo.1970) (§ 408.020); *294 Steppelman v. State Highway Comm’n of Missouri, 650 S.W.2d 343, 345 (Mo.App.1983) (§ 408.040). There can be no argument, however, that these Missouri statutes and cases allow interest to be awarded against the State here. A “State’s waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, n. 9, 104 S.Ct. 900, 907, n. 9, 79 L.Ed.2d 67 (1984).
**2475 The fact that a State has immunity from awards of interest is not the end of the matter. In a case such as this one involving school desegregation, interest or compensation for delay (in the guise of current hourly rates) can theoretically be awarded against a State despite the Eleventh Amendment’s bar against retroactive monetary liability. The Court has held that Congress can set aside the States’ Eleventh Amendment immunity in order to enforce the provisions of the Fourteenth Amendment. See City of Rome v. United States, 446 U.S. 156, 179, 100 S.Ct. 1548, 1562–63, 64 L.Ed.2d 119 (1980); Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Congress must, however, be unequivocal in expressing its intent to abrogate that immunity. See generally Atascadero State Hospital v. Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3148, 87 L.Ed.2d 171 (1985) ( “Congress must express its intention to abrogate the Eleventh Amendment in unmistakable language in the statute itself”).
In Hutto the Court was able to avoid deciding whether § 1988 met the “clear statement” rule only because attorney’s fees (without any enhancement) are not considered retroactive in nature. See 437 U.S., at 695–697, 98 S.Ct., at 2575–2577. The Court cannot do the same here, where the attorney’s fees were enhanced to compensate for delay in payment. Cf. Osterneck v. Ernst & Whinney, 489 U.S. 169, 175, 109 S.Ct. 987, 991, 103 L.Ed.2d 146 (1989) (“[U]nlike attorney’s fees, which at common law were regarded as an element of costs, ... prejudgment interest traditionally has been considered part of the compensation due [the] plaintiff”).
In relevant part, § 1988 provides:
“In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, *295 title IX of Public Law 92–318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
In my view, § 1988 does not meet the “clear statement” rule set forth in Atascadero. It does not mention damages, interest,

compensation for delay, or current hourly rates. As one federal court has correctly noted, “Congress has not yet made any statement suggesting that a § 1988 attorney’s fee award should include prejudgment interest.” Rogers v. Okin, 821 F.2d 22, 27 (CA1 1987). A comparison of the statute at issue in Shaw also indicates that § 1988, as currently written, is insufficient to allow attorney’s fees assessed against a State to be enhanced to compensate for delay in payment. The language of § 1988 is undoubtedly less expansive than that of § 2000e–5(k), for § 1988 does not equate the liability of States with that of private persons. Since § 2000e–5(k) does not allow enhancement of an award of attorney’s fees to compensate for delay, it is logical to conclude that § 1988, a more narrowly worded statute, likewise does not allow interest (through the use of current hourly rates) to be tacked on to an award of attorney’s fees against a State.
Compensation for delay in payment was one of the reasons the District Court used current hourly rates in calculating respondents’ attorney’s fees. See App. to Pet. for Cert. A26–A27; 838 F.2d 260, 263, 265 (CA8 1988). I would reverse the award of attorney’s fees to respondents and remand so that the fees can be calculated without taking compensation for delay into account.
Chief Justice REHNQUIST, dissenting.
I agree with Justice O’CONNOR that the Eleventh Amendment does not permit an award of attorney’s fees against a State which includes compensation for delay in payment. Unlike Justice O’CONNOR, however, I do not agree with the *296 Court’s approval of the award of law clerk and paralegal fees made here.
Title 42 U.S.C. § 1988 gives the district courts discretion to allow the prevailing party in an action under 42 U.S.C. § 1983 “a reasonable attorney’s fee as part of the **2476 costs.” The Court reads this language as authorizing recovery of “a ‘reasonable’ fee for the attorney’s work product,” ante, at 2470, which, the Court concludes, may include separate compensation for the services of law clerks and paralegals. But the statute itself simply uses the very familiar term “a reasonable attorney’s fee,” which to those untutored in the Court’s linguistic juggling means a fee charged for services rendered by an individual who has been licensed to practice law. Because law clerks and paralegals have not been licensed to practice law in Missouri, it is difficult to see how charges for their services may be separately billed as part of “attorney’s fees.” And since a prudent attorney customarily includes compensation for the cost of law clerk and paralegal services, like any other sort of office overhead—from secretarial staff, janitors, and librarians, to telephone service, stationery, and paper clips—in his own hourly billing rate, allowing the prevailing party to recover separate compensation for law clerk and paralegal services may result in “double recovery.”
The Court finds justification for its ruling in the fact that the prevailing practice among attorneys in Kansas City is to bill clients separately for the services of law clerks and paralegals. But I do not think Congress intended the meaning of the statutory term “attorney’s fee” to expand and contract with each and every vagary of local billing practice. Under the Court’s logic, prevailing parties could recover at market rates for the cost of secretaries, private investigators, and other types of lay personnel who assist the attorney in preparing his case, so long as they could show that the prevailing practice in the local market was to bill separately for these services. Such a result would be a sufficiently drastic departure from the traditional concept of “attorney’s fees” that I *297 believe new statutory authorization should be required for it. That permitting separate billing of law clerk and paralegal hours at market rates might “ ‘reduc[e] the spiraling cost of civil rights litigation’ ” by encouraging attorneys to delegate to these individuals tasks which they would otherwise perform themselves at higher cost, ante, at 2471, and n. 10, may be a persuasive reason for Congress to enact such additional legislation. It is not, however, a persuasive reason for us to rewrite the legislation which Congress has in fact enacted. See Badaracco v. Commissioner, 464 U.S. 386, 398, 104 S.Ct. 756, 764, 78 L.Ed.2d 549 (1984) ( “Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement”).
I also disagree with the State’s suggestion that law clerk and paralegal expenses incurred by a prevailing party, if not recoverable at market rates as “attorney’s fees” under § 1988, are nonetheless recoverable at actual cost under that statute. The language of § 1988 expands the traditional definition of “costs” to include “a reasonable attorney’s fee,” but it cannot fairly be read to authorize the recovery of all other out-of-pocket expenses actually incurred by the prevailing party in the course of litigation. Absent specific statutory authorization for the recovery of such expenses, the prevailing party remains subject to the limitations on cost recovery imposed by Federal Rule of Civil Procedure 54(d) and 28 U.S.C. § 1920, which govern the taxation of costs in federal litigation where a cost-shifting statute is not applicable. Section 1920 gives the district court discretion to tax certain types of costs against the losing party in any federal litigation. The statute specifically

enumerates six categories of expenses which may be taxed as costs: fees of the court clerk and marshal; fees of the court reporter; printing fees and witness fees; copying fees; certain docket fees; and fees of court-appointed experts and interpreters. We have held that this list is exclusive. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). Since none of these categories can possibly be construed to include the fees of law clerks and paralegals, **2477 *298 I would also hold that reimbursement for these expenses may not be separately awarded at actual cost.
I would therefore reverse the award of reimbursement for law clerk and paralegal expenses.

All Citations
491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229, 50 Fair Empl.Prac.Cas. (BNA) 17, 50 Empl. Prac. Dec. P 39,069, 57 USLW 4735, 54 Ed. Law Rep. 16

Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions

for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 237,

50 L.Ed. 499.

1

Section 1988 provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981, 1982,

1983, 1985, and 1986 of this title, title IX of Public Law 92–318 [20 U.S.C. § 1681 et seq.], or title VI of the Civil

Rights Act of 1964 [42 U.S.C. § 2000d et seq.], the court, in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee as part of the costs.”

2

The holding of the Court of Appeals on this point, 838 F.2d, at 265–266, is in conﬂict with the resolution of the

same question in Rogers v. Okin, 821 F.2d 22, 26–28 (CA1 1987), cert. denied sub nom. Commissioner,

Massachusetts Dept. of Mental Health v. Rogers, 484 U.S. 1010, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988).

3

Our opinion in Shaw does, to be sure, contain some language that, if read in isolation, might suggest a different

result in this case. Most signiﬁcantly, we equated compensation for delay with prejudgment interest, and observed

that “[p]rejudgment interest ... is considered as damages, not a component of ‘costs.’ ... Indeed, the term ‘costs’

has never been understood to include any interest component.” Library of Congress v. Shaw, 478 U.S. 310, 321,

106 S.Ct. 2957, 2965, 92 L.Ed.2d 250 (1986). These observations, however, cannot be divorced from the context

of the special “no-interest rule” that was at issue in Shaw. That rule, which is applicable to the immunity of the

United States and is therefore not at issue here, provides an “added gloss of strictness,” id., at 318, 106 S.Ct., at

2963, only where the United States’ liability for interest is at issue. Our inclusion of compensation for delay within

the deﬁnition of prejudgment interest in Shaw must be understood in light of this broad proscription of interest

awards against the United States. Shaw thus does not represent a general-purpose deﬁnition of compensation for

delay that governs here. Outside the context of the “no-interest rule” of federal immunity, we see no reason why

compensation for delay cannot be included within § 1988 attorney’s fee awards, which Hutto held to be “costs”

not subject to Eleventh Amendment strictures.

We cannot share Justice O’CONNOR’s view that the two cases she cites, post, at 2474, demonstrate the

existence of an equivalent rule relating to state immunity that embodies the same ultrastrict rule of construction

for interest awards that has grown up around the federal no-interest rule. Cf. Shaw, supra, at 314–317, 106

S.Ct., at 2961–2963 (discussing historical development of the federal no-interest rule).

4

In Shaw, which dealt with the sovereign immunity of the Federal Government, there was of course no

prospective-retrospective distinction as there is when, as in Hutto and the present case, it is the Eleventh

Amendment immunity of a State that is at issue.

5

Delaware Valley was decided under § 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d). We looked for guidance,

however, to § 1988 and our cases construing it. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711,

713, n. 1, 107 S.Ct. 3078, 3080, n. 1, 97 L.Ed.2d 585 (1987).

6

This delay, coupled with the fact that, as we recognized in Delaware Valley, the attorney’s expenses are not

deferred pending completion of the litigation, can cause considerable hardship. The present case provides an

illustration. During a period of nearly three years, the demands of this case precluded attorney Benson from

accepting other employment. In order to pay his staff and meet other operating expenses, he was obliged to

borrow $633,000. As of January 1987, he had paid over $113,000 in interest on this debt, and was continuing to

borrow to meet interest payments. Record 2336–2339; Tr. 130–131. The LDF, for its part, incurred deﬁcits of

4

In Shaw, which dealt with the sovereign immunity of the Federal Government, there was of course no

prospective-retrospective distinction as there is when, as in Hutto and the present case, it is the Eleventh

Amendment immunity of a State that is at issue.

5

Delaware Valley was decided under § 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d). We looked for guidance,

however, to § 1988 and our cases construing it. Pennsylvania v. Delaware Valley Citizens’ Council, 483 U.S. 711,

713, n. 1, 107 S.Ct. 3078, 3080, n. 1, 97 L.Ed.2d 585 (1987).

6

This delay, coupled with the fact that, as we recognized in Delaware Valley, the attorney’s expenses are not

deferred pending completion of the litigation, can cause considerable hardship. The present case provides an

illustration. During a period of nearly three years, the demands of this case precluded attorney Benson from

accepting other employment. In order to pay his staff and meet other operating expenses, he was obliged to

borrow $633,000. As of January 1987, he had paid over $113,000 in interest on this debt, and was continuing to

borrow to meet interest payments. Record 2336–2339; Tr. 130–131. The LDF, for its part, incurred deﬁcits of

$700,000 in 1983 and over $1 million in 1984, largely because of this case. Tr. 46. If no compensation were

provided for the delay in payment, the prospect of such hardship could well deter otherwise willing attorneys from

accepting complex civil rights cases that might offer great beneﬁt to society at large; this result would work to

defeat Congress’ purpose in enacting § 1988 of “encourag[ing] the enforcement of federal law through lawsuits

ﬁled by private persons.” Delaware Valley, supra, at 737, 107 S.Ct., at 3093 (BLACKMUN, J., dissenting).

We note also that we have recognized the availability of interim fee awards under § 1988 when a litigant

becomes a prevailing party on one issue in the course of the litigation. Texas State Teachers Assn. v. Garland

Independent School Dist., 489 U.S. 782, 791–792, 109 S.Ct. 1486, 1492–1493, 103 L.Ed.2d 866 (1989). In

economic terms, such an interim award does not differ from an enhancement for delay in payment.

7

The Courts of Appeals have taken a variety of positions on this issue. Most permit separate billing of paralegal

time. See, e.g., Save Our Cumberland Mountains, Inc. v. Hodel, 263 U.S.App.D.C. 409, 420, n. 7, 826 F.2d 43,

54, n. 7 (1987), vacated in part on other grounds, 273 U.S.App.D.C. 78, 857 F.2d 1516 (1988) (en banc); Jacobs

v. Mancuso, 825 F.2d 559, 563, and n. 6 (CA1 1987) (collecting cases); Spanish Action Committee of Chicago v.

Chicago, 811 F.2d 1129, 1138 (CA7 1987); Ramos v. Lamm, 713 F.2d 546, 558–559 (CA10 1983); Richardson v.

Byrd, 709 F.2d 1016, 1023 (CA5), cert. denied sub nom. Dallas County Commissioners Court v. Richardson, 464

U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983). See also Riverside v. Rivera, 477 U.S. 561, 566, n. 2, 106 S.Ct.

2686, 2690, n. 2, 91 L.Ed.2d 466 (1986) (noting lower court approval of hourly rate for law clerks). Some courts,

on the other hand, have considered paralegal work “out-of-pocket expense,” recoverable only at cost to the

attorney. See, e.g., Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 639 (CA6 1979),

cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); Thornberry v. Delta Air Lines, Inc., 676 F.2d

1240, 1244 (CA9 1982), vacated, 461 U.S. 952, 103 S.Ct. 2421, 77 L.Ed.2d 1311 (1983). At least one Court of

Appeals has refused to permit any recovery of paralegal expense apart from the attorney’s hourly fee. Abrams v.

Baylor College of Medicine, 805 F.2d 528, 535 (CA5 1986).

8

The attorney who bills separately for paralegal time is merely distributing her costs and proﬁt margin among the

hourly fees of other members of her staff, rather than concentrating them in the fee she sets for her own time.

9

A variant of Missouri’s “windfall” argument is the following: “If paralegal expense is reimbursed at a rate many

times the actual cost, will attorneys next try to bill separately—and at a proﬁt—for such items as secretarial time,

paper clips, electricity, and other expenses?” Reply Brief for Petitioners 15–16. The answer to this question is, of

course, that attorneys seeking fees under § 1988 would have no basis for requesting separate compensation of

such expenses unless this were the prevailing practice in the local community. The safeguard against the billing at

a proﬁt of secretarial services and paper clips is the discipline of the market.

10

It has frequently been recognized in the lower courts that paralegals are capable of carrying out many tasks,

under the supervision of an attorney, that might otherwise be performed by a lawyer and billed at a higher rate.

Such work might include, for example, factual investigation, including locating and interviewing witnesses;

assistance with depositions, interrogatories, and document production; compilation of statistical and ﬁnancial

data; checking legal citations; and drafting correspondence. Much such work lies in a gray area of tasks that

might appropriately be performed either by an attorney or a paralegal. To the extent that fee applicants under §

1988 are not permitted to bill for the work of paralegals at market rates, it would not be surprising to see a greater

amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation.

Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who

performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974),

said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish

between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and

other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no

other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just

because a lawyer does it.”

11

Amicus National Association of Legal Assistants reports that 77 percent of 1,800 legal assistants responding to a

survey of the association’s membership stated that their law ﬁrms charged clients for paralegal work on an hourly

billing basis. Brief for National Association of Legal Assistants as Amicus Curiae 11.

amount of such work performed by attorneys themselves, thus increasing the overall cost of litigation. Of course, purely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of who performs them. What the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (CA5 1974), said in regard to the work of attorneys is applicable by analogy to paralegals: “It is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical work, compilation of facts and statistics and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.”

11

Amicus National Association of Legal Assistants reports that 77 percent of 1,800 legal assistants responding to a

survey of the association’s membership stated that their law ﬁrms charged clients for paralegal work on an hourly

billing basis. Brief for National Association of Legal Assistants as Amicus Curiae 11.

 
 890 F.2d 65 United States Court of Appeals,
Eighth Circuit.
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, 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, Appellees, and
American Federation of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education Roseann Bentley, Dan Blackwell, Terry A.
Bond, President, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Member of the Missouri State Board of Education Arthur L. Mallory, Commissioner of Education of the State of
Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City
Mantel & Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; Linda Frazier; Rick Feierabend; Linda Hollenbeck; James Hollenbeck; Susan Horseman; and Clifford M. Horseman, Jackson
County, Missouri.
Nos. 88–2502, 88–2837. |
Submitted May 8, 1989. |
Decided Nov. 20, 1989. |
On application for Attorneys’ Fees, Expenses and Costs Jan. 10, 1990.
Synopsis State of Missouri appealed from orders of the United States District Court for the Western District of Missouri, Russell G. Clark, J., in ongoing litigation surrounding desegregation of Kansas City school district. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) desegregation monitoring committee established by district court to oversee implementation of its orders by conducting evaluations, collecting information, and recommending modifications in orders was not improperly delegated central attributes of judicial powers; (2) sanctions would not be imposed against school district based on its withdrawal of funds from state’s desegregation program account to pay for costs of providing transportation to and from magnet schools during 1986–1987 school year; and (3) district court could use maximum, rather than average, class sizes to determine how many teachers had to be employed by district even though Court of Appeals had approved use of average class size in similar computations in St. Louis desegregation case.
Affirmed.
Attorneys and Law Firms
*66 Michael J. Fields, Asst. Atty. Gen., Jefferson City, Mo., for appellants.
Allen R. Snyder, Washington, D.C. and Arthur A. Benson, Kansas City, Mo., for appellees.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

Opinion
JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from four orders entered by the district court in the ongoing litigation surrounding the desegregation of the Kansas City, Missouri, School District (“KCMSD”). The State argues that the district court1 erroneously: (1) delegated powers to the Desegregation Monitoring Committee; (2) denied the State’s motion for declaratory relief and sanctions against the KCMSD; (3) approved certain portions of the desegregation budget; and (4) required the State to pay the full cost of providing transportation to and from magnet schools for the 1986–87 school year. We affirm all of the orders.
I.
[1] The district court established the Desegregation Monitoring Committee to oversee implementation of the court’s orders by conducting evaluations, collecting information, and recommending modifications in the orders. Jenkins v. Missouri, 639 F.Supp. 19, 42 (W.D.Mo.1985), aff’d as modified, 807 F.2d 657 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). “In its letter dated March 24, 1988, the [district court] directed the parties to submit any disputes involving interpretation of the [c]ourt’s desegregation orders to the Desegregation Monitoring Committee for initial resolution.” May 11, 1988, Order at 1. The court adopted this procedure “because it provides a practical method of carrying out the [c]ourt’s remedial orders on a day-to-day basis without unnecessary court involvement.” Id. In granting the power to the Monitoring Committee, the court relied upon its “inherent power to supply itself with assistance for carrying out duties necessary to the administration of justice.” Id. at 2 (citing Schwimmer v. United States, 232 F.2d 855, 865 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956)). Any party may ask the district court to review a Monitoring Committee decision on a de novo basis.2 The court will *67 comply with all timely requests for review; if no appeal is made to the district court within fifteen days after the Monitoring Committee makes a decision, the parties are bound by it.3 August 29, 1988, Order at 1–2.
Both in the district court and on appeal, the State has argued that essential attributes of judicial power have been improperly delegated to the Monitoring Committee in violation of Article III of the United States Constitution, as interpreted by the Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982).4 In its May 11, 1988, Order, the district court rejected the State’s argument, and we are similarly unpersuaded. A district court’s order authorizing the initial determination of issues by an appointed referee or master does not contravene Article III if the ruling is susceptible to de novo review by the district court. See United States v. Raddatz, 447 U.S. at 681– 84, 100 S.Ct. at 2415–16.
The Monitoring Committee’s determinations will not be subject to de novo review by the district court if the parties fail to appeal the orders to that court within fifteen days. However, this procedural rule does not violate Article III. See Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985) (upholding, against an Article III challenge, a rule which permitted “both the district judge and the court of appeals to refuse to review a magistrate’s report absent timely objection”); cf. United States v. Peacock, 761 F.2d 1313, 1318 (9th Cir.) (Kennedy, J.) (“Where de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties”), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985).
The State also challenges the district court’s power to create the Monitoring Committee. Relying primarily upon La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the State argues that the district court did not comply with Federal Rule of Civil Procedure 53, which governs the use of special masters. The district court did not rely uponRule 53 when it created the Monitoring Committee, and we need not decide whether its actions are consistent with that Rule. As Judge Rubin has stated:
[R]ule 53 does not terminate or modify the district court’s inherent equitable power to appoint a person, whatever be his title, to assist it in administering a remedy. The power of a federal court to appoint an agent to supervise the

implementation of its decrees has long been established. Such court-appointed agents have been identified by “a confusing plethora of titles: ‘receiver,’ ‘Master,’ ‘Special Master,’ ‘master hearing officer,’ ‘monitor,’ ‘human rights committee,’ ‘Ombudsman,’ ” and others. The function is clear, whatever the title.
Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir.) (footnotes omitted) (quoting Special *68 Project, The Remedial Process in Institutional Reform Litigation, 78 Colum.L.Rev. 784, 826 (1978)), amended in part and vacated in part on other grounds, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). See also Swann v. Board of Educ., 402 U.S. 1, 15, 91 S.Ct. 1267, 1275–76, 28 L.Ed.2d 554 (1971) (stressing a district court’s broad “equitable powers” to remedy the effects of segregation); Schwimmer v. United States, 232 F.2d at 865 (holding that a district court has equitable powers which go “[b]eyond the provisions of Rule 53”). The district court’s use of the Monitoring Committee is well within the court’s equitable powers.
II.
[2] The KCMSD withdrew $1,255,956 from the State’s desegregation program account to pay for the cost of providing transportation to and from magnet schools during the 1986–87 school year. The State asked the district court to impose sanctions upon the KCMSD because, according to the State, the withdrawal had not been authorized by the district court. The district court rejected the State’s argument and denied the motion for sanctions, because it concluded that its order of June 16, 1986, clearly provided that the State would pay the full cost of the transportation in question. August 29, 1988, Order at 7–8. The court further observed that, before withdrawing the money from the State’s program account, the KCMSD sought an interpretation from the Monitoring Committee, which stated that the full cost of the transportation program should be paid by the State. Id. at 8.
The State now recognizes that the withdrawals were authorized by the district court order, but nevertheless claims that sanctions should be imposed because the KCMSD could not have known when it withdrew the money that its actions were authorized by the district court. In essence, the State asks that we reverse the district court’s denial of sanctions in spite of the fact that the KCMSD obtained a favorable ruling from the Monitoring Committee, and in spite of the district court’s conclusion that the KCMSD acted properly. We decline its invitation. Moreover, the State’s use of the terms “theft” and “pilferage” to describe the KCMSD’s action exceeds the bounds of acceptable advocacy.
III.
[3] The State argues that the district court’s decision to use maximum, rather than average, class sizes to determine how many teachers must be employed by the KCMSD is erroneous because this court approved the use of average class size in similar computations in the St. Louis desegregation case. See Liddell v. Board of Educ., 830 F.2d 823, 826–27 (8th Cir.1987); Liddell v. Board of Educ., 823 F.2d 1252, 1254 (8th Cir.1987).
The state’s argument is unavailing for two reasons. First, the district court in this case has consistently used maximum class size measurements as a means of calculating teacher requirements, see Jenkins, 639 F.Supp. at 30, and it has become the law of the case, see Liddell v. Missouri, 731 F.2d 1294, 1304–05 (8th Cir.) (en banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984). Second, the question in the Liddell case was not whether courts must always use average class size figures when computing the number of teachers which a school must employ. Rather, we simply held in Liddell that, on the facts of that case, it was appropriate to use a formula based upon average class size. See 731 F.2d at 1313–17. Similarly, the district court in this case has not exceeded its broad discretion to shape remedial measures. See United States v. Paradise, 480 U.S. 149, 184, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (“[T]he choice of remedies to redress racial discrimination is ‘a balancing process left, within appropriate constitutional or statutory limits, to the sound discretion of the trial court’ ”) (quoting Fullilove v. Klutznick, 448 U.S. 448, 508, 100 S.Ct. 2758, 2790, 65 L.Ed.2d 902 (1980) (Powell, J., concurring)).

IV.
The State also claims that the district court erroneously: (1) refused to adjust the State’s funding obligation to reflect an alleged *69 error which had been made in calculating the base number of teachers required in 1987–88; (2) approved a purportedly excessive number of teachers for the 1988–89 school year; (3) and required the state to pay certain percentages of the cost of magnet school transportation. These arguments do not merit detailed discussion. The district court’s orders reflect a careful analysis of the issues presented and a conscientious and thorough effort to remedy constitutional violations.

V.
We acknowledge that different remedies have been fashioned in the Kansas City desegregation effort than in the comparable St. Louis case. However, the remedies approved in either case do not necessarily restrict the options of the district court in the other. As the Supreme Court has stated, “There is no universal answer to complex problems of desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance.” Green v. County School Bd., 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968).
Finally, we observe that the State’s briefs contain excessive language as well as a repetition of issues which have already been decided.
Accordingly, we affirm in all respects the orders which the district court issued on May 11, 1988; July 25, 1988; August 29, 1988; and November 28, 1988.5

ORDER
Applications for attorneys’ fees, expenses and costs filed by counsel for the Jenkins Class and counsel for Kansas City, Missouri School District are before the court. The State has responded to both applications.
Having carefully considered the application of the Jenkins Class, and the objections filed by the State, we conclude that attorneys’ fees should be awarded in the amount of $14,793.50. We have concluded that the time devoted to the case was reasonable, and that the hourly rates requested were reasonable. Expenses of the Jenkins Class in the amount of $723.33 are awarded.
With respect to the motion of KCMSD, and having considered the response of the State, we award fees in the following amounts:

Lawyer time Non-lawyer services Expenses

$45,000.00 $3,625.00 $2,317.27

While we reduced the requested fee of KCMSD in our order of March 2, 1989 by 25 percent because of apportionment of the liability to KCMSD, the issues involved in this appeal do not render such a reduction equitable, in our judgment. We make some reduction in the fee requested because of the likelihood of duplication of effort considering the five attorneys that worked on the brief. We are aware of the nature of the issues raised, that one issue that was briefed would have been before argument.
The Clerk is directed to enter costs in favor of KCMSD in the amount of $218.30. With respect to the time of the non-lawyer librarian, we made reference to time of such personnel in our oder of March 2, 1989. The services rendered by such personnel are essentially similar to those rendered by paralegals.

All Citations 890 F.2d 65, 57 Ed. Law Rep. 368

Footnotes

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

The State argues that the Order does not indicate what standard of review will be utilized by the district court.

Jenkins and the KCMSD both state that the district court will employ a de novo standard when reviewing the

Monitoring Committee’s recommendations. We are satisﬁed that the district court will review an interpretation of

one of its earlier orders on a de novo basis. We add that this construction of the Order helps to ensure the

constitutionality of the court’s actions. See United States v. Raddatz, 447 U.S. 667, 681–84, 100 S.Ct. 2406,

2415–17, 65 L.Ed.2d 424 (1980) (holding that the use of a magistrate to initially resolve a motion to suppress

evidence did not violate Article III as long as the district court reviewed the determination on a de novo basis).

3

A Monitoring Committee interpretation is stayed on the date an appeal with supporting suggestions is ﬁled with

the district court. August 29, 1988, Order at 2. The State suggests that to protect itself it must bring a computer

and photocopy machine to each meeting of the Monitoring Committee, prepare its motion and suggestions, and

ﬁle them as soon as the district court opens the following morning. This frivolous argument does not persuade us

that the district court will do other than properly exercise its discretion in considering requested stays.

4

In Northern Pipeline, just as in the later cases of Granﬁnanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782,

106 L.Ed.2d 26 (1989); Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92

L.Ed.2d 675 (1986); and Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 105 S.Ct. 3325, 87

L.Ed.2d 409 (1985), the Supreme Court reviewed congressional attempts to establish adjudicatory bodies other

than Article III courts. The congressional action in those cases raised separation of powers issues which are not

raised by the district court’s use of the Monitoring Committee. See Granﬁnanciera, 109 S.Ct. at 2802–05 (Scalia,

J., concurring); Schor, 478 U.S. at 848–57, 106 S.Ct. at 3255–60; Thomas, 473 U.S. at 582–94, 105 S.Ct. at

3333–40; Northern Pipeline, 458 U.S. at 57–87, 102 S.Ct. at 2864–80.

5

While this appeal was pending, the State ﬁled a supplemental brief which essentially challenges arguments made

by the KCMSD in the district court. We decline to review these matters not yet decided by the district court.

Although the State describes the KCMSD’s arguments in the district court as “admissions” which are relevant to

the issues properly before us on appeal, we ﬁnd this interpretation to be, at best, unpersuasive. Our refusal to

grant the State any relief at this time is without prejudice to its right to appropriately appeal from any district court

order.

 
 731 F.Supp. 1437 United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
Feb. 26, 1990.
Synopsis After judgment was entered in favor of plaintiffs in school desegregation case, 593 F.Supp. 1485, plaintiffs filed motion for award of postjudgment interest. The District Court, Russell G. Clark, J., held that postjudgment interest on attorneys’ fees awarded to plaintiffs began to accrue from date court recognized plaintiffs’ right to recover such fees, rather than when order was entered quantifying the award.
Motion granted.
Attorneys and Law Firms
*1437 Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., and Russell E. Lovell, Des Moines, Iowa, for plaintiffs.
Shirley Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and Allen R. Snyder, Hogan & Hartson, Washington, D.C., for KCMSD.
Bartow Farr, III, Onek, Klein & Farr, Washington, D.C. and Michael Fields, Asst. Atty. Gen., Jefferson City, Mo., for State of Missouri.
Michael Gordon, Jolley, Walsh, Hager & Gordon, Kansas City, Mo., for intervenor Amer. Fed. of Teachers.
ORDER
RUSSELL G. CLARK, District Judge.
Before the Court is plaintiffs’ motion for award of post-judgment interest. The State filed a response and plaintiffs filed a reply to the State’s response. The State filed a memorandum reply to plaintiffs’ reply and plaintiffs filed a comment to the State’s memorandum reply. Plaintiffs’ motion *1438 for award of post-judgment interest will be granted.
On September 17, 1984, the Court entered judgment in the above-captioned case in favor of plaintiffs and against the State and the KCMSD. Jenkins v. State of Missouri, 593 F.Supp. 1485 (W.D.Mo.1984). On February 24, 1986, the Court entered an order stating that “[c]learly under the law, counsel for plaintiffs are entitled to an award of attorney’s fees” and ordered the State to make an immediate partial payment of attorneys’ fees to Arthur Benson in the amount of $200,000. Id., Order of February 24, 1986, at 1–2. Subsequently, on May 11, 1987, the Court entered an order stating that plaintiffs were entitled to recover attorneys’ fees in the above-captioned case and directing the State to pay Benson $1,687,139.92 in attorneys’ fees and expenses and to pay the Legal Defense Fund $2,365,875.74 in attorneys’ fees and expenses.
Plaintiffs’ motion for award of post-judgment interest argues that plaintiffs are entitled to post-judgment interest on attorneys’ fees from the date of the February 24, 1986, order in which the Court first determined plaintiffs were entitled to an award of attorneys’ fees. The State responds that post-judgment interest is only available from the date of the May 11, 1987, order

quantifying plaintiffs’ attorneys’ fees and that even if post-judgment interest runs from a date earlier than the quantifying of the fee award, the Court’s award of current market rates and enhancement of Benson’s rate for delay in payment should preclude awarding post-judgment interest prior to the quantifying of the fee award, as it would result in a windfall to plaintiffs.
[1] Plaintiffs originally alleged claims against defendants under 42 U.S.C. §§ 1983 and 2000d and under the 14th Amendment to the United States Constitution. Id., 593 F.Supp. at 1488. Plaintiffs were successful on their claims, see id. at 1506, and were subsequently awarded attorneys’ fees as a “prevailing party” pursuant to 42 U.S.C. § 1988. Id., Order of May 11, 1987, at 2. 28 U.S.C. § 1961(a) (emphasis added) provides:
Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges.
It is well-settled that the language “any money judgment” in § 1961 includes a judgment awarding attorneys’ fees, see, e.g., Mathis v. Spears, 857 F.2d 749, 760 (Fed.Cir.1988); R.W.T. v. Dalton, 712 F.2d 1225, 1234–35 (8th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542, 543 (5th Cir.1983) (en banc) (per curiam); Spain v. Mountanos, 690 F.2d 742, 748 (9th Cir.1982), and therefore plaintiffs are entitled to an award of interest on their attorneys’ fees judgment pursuant to § 1961. The dispute resulting in the current motion arises from the following § 1961 language: “Such interest shall be calculated from the date of the entry of the judgment....” Plaintiffs contend that interest on plaintiffs’ attorneys’ fees award should begin to accrue on February 24, 1986, which is the date the Court first entered an order stating that plaintiffs were entitled to recover attorneys’ fees. The State argues that interest on the attorneys’ fees award should not begin to accrue until May 11, 1987, which is the date the Court entered an order quantifying plaintiffs’ attorneys’ fees award.
All courts that have specifically addressed this issue have determined that interest should accrue from the date the *1439 Court recognizes the party’s right to recover attorneys’ fees even if the fees were not quantified. The Fifth Circuit has stated:
If a judgment is rendered that does not mention the right to attorneys’ fees, and the prevailing party is unconditionally entitled to such fees by statutory right, interest will accrue from the date of judgment. If, however, judgment is rendered without mention of attorneys’ fees, and the allowance of fees is within the discretion of the court, interest will accrue only from the date the court recognizes the right to such fees in a judgment.
Copper Liquor, 701 F.2d at 545 (emphasis added). In a footnote that court stated that the “rule should not extend to the allowance of interest prior to the time of the judgment recognizing the right to costs and fees.” Id. at 544 n. 3 (emphasis added). The Federal Circuit agreed with the Fifth Circuit:
The provision for calculating interest from entry of judgment deters use of the appellate process by the judgment debtor solely as a means of prolonging its free use of money owed the judgment creditor. Interest on an attorney fee award thus runs from the date of the judgment establishing the right to the award, not the date of the judgment establishing its quantum.
Mathis, 857 F.2d at 760 (citation omitted) (emphasis added). The district courts which have specifically addressed the issue reach the same result as Copper Liquor and Mathis. See Water Technologies Corp. v. Calco Ltd., 714 F.Supp. 899, 910 (N.D.Ill.1989); Procter & Gamble Co. v. Weyerhaeuser Co., 711 F.Supp. 904, 908 (N.D.Ill.1989); Williamsburg Fair Housing Committee v. Ross–Rodney Housing Corp., 599 F.Supp. 509, 522–23 (S.D.N.Y.1984); Burston v. Commonwealth of Virginia, 595 F.Supp. 644, 652 (E.D.Va.1984). The court in Williamsburg justified its award of interest on attorneys’ fees from the date the fees were awarded as follows:
If a dollar amount had been set by this Court when the order was entered [granting plaintiffs’ request

for attorneys’ fees], the plaintiffs’ attorneys would have been entitled to immediate payment. Since the amount of the award was not set forth at that time, the defendants have enjoyed the use of that money and the plaintiffs’ attorneys have not.
Williamsburg, 599 F.Supp. at 523.
It appears that the cases cited by the State to support the proposition that interest begins to accrue on the date an attorneys’ fees award is quantified are distinguishable from the current case and do not specifically address the issue raised in the current motion. In R.W.T. v. Dalton, 712 F.2d 1225, 1228 (8th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983), the district court granted summary judgment in favor of plaintiffs on October 14, 1980, and on March 30, 1982, entered a final judgment awarding plaintiffs’ attorneys’ fees in the amount of $34,815, but with no award of post-judgment interest. The Eighth Circuit determined that the district court should have awarded interest on plaintiffs’ attorneys’ fees award from March 30, 1982, until payment. Id. at 1234–35. The State argues that Dalton indicates that the Eighth Circuit intended for post-judgment interest on an attorneys’ fees award to begin to accrue only from the date of an order quantifying such award. Although Dalton is somewhat ambiguous on this issue, the Court does not agree with the State’s interpretation of Dalton. From the Eighth Circuit’s opinion it would appear that the district court determined that plaintiffs were entitled to an award of attorneys’ fees and quantified the award of fees both in the March 30, 1982, order. Therefore, there was no need for the Eighth Circuit to specifically address and determine if post-judgment interest began to accrue on the date the court determined plaintiffs were entitled to an award of attorneys’ fees or the date the attorneys’ fees award was quantified. In addition, the Court notes that in Dalton the Eighth Circuit approvingly cited Copper Liquor as authority. Id. at 1234.
The State also cites Griffin v. Ozark County, Missouri, 688 F.Supp. 1372 (W.D.Mo.1988). In Griffin, the court entered an *1440 order on December 8, 1987, in favor of plaintiff in the amount of $500 plus attorneys’ fees. Id. at 1372. On June 1, 1988, the court entered an order quantifying the attorneys’ fees award. Id. at 1377. The court cited Dalton in awarding plaintiff interest on attorneys’ fees from the date of the order quantifying the attorneys’ fees award. However, based upon the discussion of Dalton previously in this order, it appears that the Griffin court’s reliance on Dalton is misplaced. In addition, the Court notes that the Griffin court did not specifically address the issue raised by the current motion.
The remaining cases cited by the State or disclosed through the Court’s research are not dispositive on the issue of when postjudgment interest begins to accrue on an attorneys’ fees award because the cases do not specifically address that issue and the courts in those cases both awarded attorneys’ fees and quantified such awards on the same date. See Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 927 (3d Cir.1985); McCullough v. Cady, 640 F.Supp. 1012, 1028 (E.D.Mich.1986); Advo System, Inc. v. Walters, 110 F.R.D. 426, 433 (E.D.Mich.1986); Spell v. McDaniel, 616 F.Supp. 1069, 1115 (E.D.N.C.1985), vacated in part on other grounds, 824 F.2d 1380 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988). In fact, the court in Spell cited Dalton when stating that “interest accrues as a matter of course from the date of entry of the judgment awarding fees,” as opposed to quantifying fees. Id. (emphasis added). The court in Advo also stated that interest accrues “from the date of the judgment allowing this award.” Advo, 110 F.R.D. at 433 (emphasis added). Although the court in McCullough made the correct statement that “[c]laims for attorneys’ fees and costs are unliquidated until finally determined by the court and a judgment entered,” the court continued by stating that “interest will be applied to the total amount of [the attorneys’ fees award] from the date of the judgment allowing this award.” Id. (emphasis added).
[2] Therefore, the Court finds that the weight of authority favors an award of interest on plaintiffs’ attorneys’ fees award from February 24, 1986, the date the Court first determined that plaintiffs were entitled to an award of attorneys’ fees. The State argues that even if post-judgment interest is available to plaintiffs from February 24, 1986, such an award would not be appropriate in this case because plaintiffs received both current market rates and an enhancement for delay in payment in the May 11, 1987, order quantifying plaintiffs’ attorneys’ fees award. Thus, the State argues that allowing plaintiffs to receive post-judgment interest from February 24, 1986, results in a windfall to plaintiffs. However, allowing plaintiffs to receive post-judgment interest from February 24, 1986, does not result in a windfall to plaintiffs. In its order of May 11, 1987, the Court determined that Benson’s hourly rate would fall at the high end of a $125 to $175 per hour range. Jenkins, Order of May 11, 1987, at 4. The Court then considered the preclusion of other employment by Benson due to this case, the undesirability of the case and the delay in payment and found that “a reasonable hourly rate for Mr. Benson’s services from 1979 through June 30, 1986, is $200.00 per hour.” Id. at 4–5. Thus, it is clear that the enhanced hourly rate for Benson was not based solely on delay in payment, but also included the undesirability of the case and preclusion of other employment. In addition, although the Court stated that the enhanced hourly rate was for Benson’s services through June 30, 1986, Benson’s last time entry for litigation other than Year I monitoring and attorneys’ fees litigation, which were compensated at a lower hourly rate of $125, id. at 8; id., Order of July 14, 1987, at 2, was on September 3, 1985. Benson was the only attorney whose

hourly rate was enhanced and this enhancement was for services rendered prior to September 3, 1985. This fact, combined with the Court’s statement that “a reasonably hourly rate for Mr. Benson’s services from 1979 through June 30, 1986, is $200.00 per hour,” id., Order of May 11, 1987, at 4–5, indicates that the May 11, 1987, order did not compensate *1441 Benson at current 1987 market rates, but instead at 1986 rates. The attorneys’ fees award at the 1986 rates and its enhancement was not meant to be a substitute for post-judgment interest. Therefore, the Court finds that an award of postjudgment interest on plaintiffs’ attorneys’ fees award is appropriate.
In the alternative, plaintiffs’ motion requests the Court to award Benson $178,859.18 in prejudgment interest. Because the Court will grant plaintiffs’ motion, it is unnecessary for the Court to address the issues contained in plaintiffs’ alternative motion.
For the foregoing reasons the Court will grant plaintiffs’ motion for award of post-judgment interest. The United States Treasury Bill rate on February 24, 1986, was 7.71% and, therefore, plaintiffs are entitled to an award of interest on their attorneys’ fees award at a rate of 7.71% from February 24, 1986. The State shall be solely liable for such interest payments. See id. at 14–16. The State’s post-judgment interest obligation to Arthur Benson and the Legal Defense Fund shall be credited $113,379.44 and $184,124.26, respectively, for June 23, 1989, payments of post-judgment interest by the State.
Accordingly, it is hereby
ORDERED that plaintiffs’ motion for award of post-judgment interest is granted; and it is further
ORDERED that plaintiffs are awarded post-judgment interest at a rate of 7.71% from February 24, 1986, on their attorneys’ fees award; and it is further
ORDERED that the State shall be solely liable for post-judgment interest payments to plaintiffs; and it is further
ORDERED that the State’s post-judgment interest obligation to Arthur Benson and the Legal Defense Fund shall be credited $113,379.44 and $184,124.26, respectively, for previous post-judgment interest payments.
All Citations
731 F.Supp. 1437, 59 Ed. Law Rep. 364

 
 110 S.Ct. 1651 Supreme Court of the United States
MISSOURI, et al., Petitioners v.
Kalima JENKINS et al.
No. 88–1150. |
Argued Oct. 30, 1989. |
Decided April 18, 1990.
Synopsis State, county and taxpayers appealed from judgment of the United States District Court for the Western District of Missouri, Russell G. Clark, J., 672 F.Supp. 400, establishing school desegregation plan and methods by which plan would be funded. The Court of Appeals for the Eighth Circuit affirmed in part and reversed in part, 855 F.2d 1295, and State filed petition for certiorari. The Supreme Court, Justice White, held that: (1) “petition for rehearing en banc” filed with Court of Appeals, although technically not permitted by Rules of Appellate Procedure, qualified for treatment as petition for rehearing and tolled 90–day period in which to file petition for certiorari; (2) order imposing increase in property taxes levied by school district to insure funding for desegregation of district’s public schools violated principles of federal/state comity; and (3) federal courts could require school district to levy taxes in excess of limits set by state statute in order to fund school desegregation plan.
Affirmed in part, reversed in part, and remanded.
Justice Kennedy filed opinion concurring in part and concurring in judgment in which Chief Justice Rehnquist, Justice O’Connor and Justice Scalia joined.
**1653 *33 Syllabus* In an action under 42 U.S.C. § 1983, the District Court found that the Kansas City, Missouri, School District (KCMSD) and petitioner State had operated a segregated school system within the KCMSD. The court issued an order detailing a desegregation remedy and the financing necessary to implement it. Although it allocated the costs of the remedy between the governmental entities, the court determined that several state-law provisions would prevent KCMSD from being able to pay its share. Rather than exercising what it believed to be its power to order a tax increase to fund the remedy, the court chose to impose other means—including enjoining the effect of one of the state-law provisions—to allow KCMSD to raise additional revenue. The Court of Appeals affirmed most of the initial order, but ordered the lower court to divide the remedy’s cost equally between the entities. On remand, however, the District Court held that the State and KCMSD were 75% and 25% at fault, respectively, ordered them to share the cost of the remedy in that proportion, and held them jointly and severally liable. Subsequently, the court determined that KCMSD had exhausted all available means of raising additional revenue, and, finding itself with no choice but to exercise its remedial powers, ordered the KCMSD property tax levy increased through the 1991–1992 fiscal year. On appeal, the Court of Appeals rejected the State’s argument that a federal court lacks judicial power to order a tax increase. Accepting the District Court’s conclusion that state-law limitations prevented KCMSD from raising sufficient funds, it held that those limitations must fall to the Constitution’s command and affirmed all of the District Court’s actions taken to that point. However, concluding that federal/state comity principles required the District Court to use minimally obtrusive methods to remedy constitutional violations, it required that in the future the lower court should not set the property tax rate itself but should authorize KCMSD to submit a levy to state tax collection authorities and should enjoin the operation of state tax laws hindering KCMSD from adequately funding the remedy. The Court of Appeals’ judgment was entered on August 19, 1988. On September 16, the State filed with the court a document styled “State Appellants’ Petition for Rehearing En Banc.” On October 14, 1988, the Court of Appeals denied this and two *34 similarly styled petitions by other parties seeking to intervene and issued its mandate. One of the would-be intervenors filed with this Court an application for extension of time to file a petition for certiorari 78 days after the issuance of the order denying rehearing and 134 days after

the entry of the Court of Appeals’ judgment. The application was returned as untimely pursuant to 28 U.S.C. § 2101(c)— which requires that a civil certiorari petition be filed within 90 days after the entry of the judgment below and that any application for an extension of time **1654 be filed within the original 90–day period—since, while the filing of a “petition for rehearing” under Federal Rule of Appellate Procedure 40 tolls the running of the 90–day period, the filing of a “suggestion for rehearing in banc” under Rule 35 does not. On January 10, 1989, the Clerk of the Court of Appeals issued an amended order, recalling the October 14 mandate and entering nunc pro tunc effective October 14 an order denying the three “petitions for rehearing with suggestions for rehearing en banc.” The State filed a petition for certiorari within 90 days of the October 14, 1988, order, which was granted, limited to the question of the property tax increase.
Held:
1. The State’s certiorari petition was timely filed. The Court of Appeals appears to have interpreted and actually treated the State’s papers as including a petition for rehearing before the panel. Had it regarded the State’s papers as only a suggestion for rehearing in banc, without a petition for rehearing, it would have, as required by Federal Rules of Appellate Procedure 35(c) and 41(a), issued its mandate within 21 days of the entry of the panel’s judgment or would have, under Rule 41(a), issued an order extending the time for the issuance of the mandate. Although this Court of Appeals may not on every occasion have observed these technicalities, it cannot be concluded that the court has engaged in a systematic practice of ignoring them. Although a court cannot, post hoc, amend an order to make it appear that it took an action which it never took, the Court of Appeals actually amended its order to reflect the reality of the action taken on October 14, at which time it had entered an order denying the “petitions for rehearing en banc” because this was the manner in which the papers filed with the court had been styled. While the court below, unlike other Courts of Appeals, does not have a published practice of treating all suggestions for rehearing in banc as containing both petitions for rehearing and suggestions for rehearing in banc, this Court will not assume that the court’s action in this case is not in accord with its regular practice. Pp. 1660–1662.
2. The District Court abused its discretion in imposing the tax increase, which contravened the principles of comity. Although that court believed that it had no alternative to imposing the tax itself, it, in *35 fact, had the very alternative outlined by the Court of Appeals. Authorizing and directing local government institutions to devise and implement remedies not only protects the function of those institutions but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems. While a district court should not grant local government carte blanche, local officials should at least have the opportunity to devise their own solutions to such problems. Here, KCMSD was ready, willing, and, but for the operation of state law, able to remedy the deprivation of constitutional rights itself. Pp. 1662–1663.
3. The Court of Appeals’ modifications of the District Court’s order satisfy equitable and constitutional principles governing the District Court’s power. Pp. 1663–1666.
(a) This Court accepts the Court of Appeals’ conclusion that the District Court’s remedy was proper. The State’s argument that the funding ordered by the District Court violates the principles of equity and comity because the remedial order itself was excessive aims at the scope of the remedy rather than the manner in which the remedy is to be funded and thus falls outside this Court’s limited grant of certiorari. P. 1664.
(b) Under the circumstances of this case, the District Court did not abuse its discretion in ruling that KCMSD should be responsible for funding its share of the remedy. Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745, did not hold that **1655 a district court could never set aside state laws preventing local governments from raising funds sufficient to satisfy their constitutional obligations just because those funds could also be obtained from the States. To the contrary, § 1983 is authority enough to require each tortfeasor to pay its share of the cost of a remedy if it can, and apportionment of the cost is part of the District Court’s equitable powers. Here, the court believed that the Court of Appeals had ordered it to allocate the costs between the two entities. Had the court chosen, as the State argues, to allow the monetary obligations that KCMSD could not meet to fall on the State rather than interfere with state law to permit KCMSD to meet them, the implementation of the order might have been delayed if the State resisted efforts by KCMSD to obtain contribution. P. 1664.
(c) The modifications are not invalid under the Tenth Amendment, since that Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment. P. 1665.
(d) The Court of Appeals’ order does not exceed the judicial power under Article III. A court can direct a local government body to levy *36 its own taxes. See, e.g., Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233, 84 S.Ct. 1226,

1234, 12 L.Ed.2d 256. The State’s argument that federal courts cannot set aside state-imposed limitations on local taxing authority because that requires local governments to do more than exercise the power that is theirs has been rejected, Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403, and fails to take account of local governments’ obligations, under the Supremacy Clause, to fulfill the requirements that the Constitution imposes on them. Pp. 1665–1667.
855 F.2d 1295 (CA 8 1988), affirmed in part, reversed in part, and remanded.
WHITE, J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III and IV, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment, in which REHNQUIST, C.J., and O’CONNOR and SCALIA, JJ., joined, post, p. 1667.
Attorneys and Law Firms
H. Bartow Farr III argued the cause for petitioners. With him on the briefs were William Webster, Attorney General of Missouri, James B. Deutsch, Deputy Attorney General, Michael J. Fields, Assistant Attorney General, and David R. Boyd.
Allen R. Snyder argued the cause for respondents. With him on the brief for respondents Kalima Jenkins et al. were David S. Tatel, Walter A. Smith, Jr., Patricia A. Brannan, Shirley W. Keeler, Arthur A. Benson II, James S. Liebman, Julius L. Chambers, James M. Nabrit III, Theodore M. Shaw, and Norman J. Chachkin. Michael D. Gordon and Lawrence A. Poltrock filed a brief for respondent American Federation of Teachers, Local 691.*
* Briefs of amici curiae urging reversal were filed for the State of New Mexico by Hal Stratton, Attorney General, Randall W. Childress, Deputy Attorney General, Charles R. Peifer, Chief Assistant Attorney General, and Paul Farley, Assistant Attorney General; for Jackson County, Missouri, by John B. Williams and Russell D. Jacobson; for the National Governors’ Association et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Andrew D. Hurwitz; and for Icelean Clark et al. by Mark J. Bredemeier and Jerald L. Hill.
Peter S. Hendrixson filed a brief for the Lawyers’ Committee for Civil Rights Under Law as amicus Curiae urging affirmance.
Opinion
*37 Justice WHITE delivered the opinion of the Court.
The United States District Court for the Western District of Missouri imposed an increase in the property taxes levied by the Kansas City, Missouri, School District (KCMSD) to ensure funding for the desegregation of KCMSD’s public schools. We granted certiorari to consider the State of Missouri’s argument that the District Court lacked the power to raise local property taxes. For the reasons given below, we hold that the District Court abused its discretion in imposing the tax increase. We also hold, however, that the modifications of the District Court’s order made by the Court of Appeals do satisfy equitable and constitutional principles governing the District Court’s power.
I
In 1977, KCMSD and a group of KCMSD students filed a complaint alleging that the State of Missouri and surrounding school districts had operated a segregated public school system in the Kansas City metropolitan area.1 The District Court realigned KCMSD as a party defendant, **1656 School Dist. of Kansas City v. Missouri, 460 F.Supp. 421 (WD Mo.1978), and KCMSD filed a cross-claim against the State, seeking indemnification for any liability that might be imposed on KCMSD for intradistrict segregation.2 After a lengthy trial, the District Court found that KCMSD and the State had operated a segregated school system within the KCMSD. Jenkins v. Missouri, 593 F.Supp. 1485 (1984).3
*38 The District Court thereafter issued an order detailing the remedies necessary to eliminate the vestiges of segregation and

the financing necessary to implement those remedies. Jenkins v. Missouri, 639 F.Supp. 19 (1985).4 The District Court originally estimated the total cost of the desegregation remedy to be almost $88 million over three years, of which it expected the State to pay $67,592,072 and KCMSD to pay $20,140,472. Id., at 43–44. The court concluded, however, that several provisions of Missouri law would prevent KCMSD from being able to pay its share of the obligation. Id., at 44. The Missouri Constitution limits local property taxes to $1.25 per $100 of assessed valuation unless a majority of the voters in the district approve a higher levy, up to $3.25 per $100; the levy may be raised above $3.25 per $100 only if two-thirds of the voters agree. Mo. Const., Art. X, §§ 11(b), (c).5 The “Hancock Amendment” requires property tax rates to be rolled back when property is assessed at a higher valuation to ensure that taxes will not be increased solely as a result of reassessments. *39 Mo. Const., Art. X, § 22(a); Mo.Rev.Stat. § 137.073.2 (1986). The Hancock Amendment thus prevents KCMSD from obtaining any revenue increase as a result of increases in the assessed valuation of real property. “Proposition C” allocates one cent of every dollar raised by the state sales tax to a schools trust fund and requires school districts to reduce property taxes by an amount equal to 50% of the previous year’s sales tax receipts in the district. Mo.Rev.Stat. § 164.013.1 (Supp. 1988). However, the trust fund is allocated according to a formula that does not compensate KCMSD for the amount lost in property tax revenues, and the effect of Proposition C is to divert nearly half of the sales taxes collected in KCMSD to other parts of the State.
The District Court believed that it had the power to order a tax increase to ensure adequate funding of the desegregation plan, but it hesitated to take this step. It chose instead to enjoin the effect of the Proposition C rollback to allow KCMSD to raise an additional $4 million for the coming fiscal year. The court ordered KCMSD to submit to the **1657 voters a proposal for an increase in taxes sufficient to pay for its share of the desegregation remedy in following years. Jenkins v. Missouri, 639 F.Supp., at 45.
The Court of Appeals for the Eighth Circuit affirmed the District Court’s findings of liability and remedial order in most respects. Jenkins v. Missouri, 807 F.2d 657 (1986) (in banc). The Court of Appeals agreed with the State, however, that the District Court had failed to explain adequately why it had imposed most of the cost of the desegregation plan on the State. Id., at 684, 685. The Eighth Circuit ordered the District Court to divide the cost equally between the State and KCMSD. Id., at 685. We denied certiorari. Kansas City, Missouri, School Dist. v. Missouri, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).
Proceedings before the District Court continued during the appeal. In its original remedial order, the District Court had directed KCMSD to prepare a study addressing the usefulness *40 of “magnet schools” to promote desegregation.6 Jenkins v. Missouri, supra, at 34–35. A year later, the District Court approved KCMSD’s proposal to operate six magnet schools during the 1986–1987 school year.7 The court again faced the problem of funding, for KCMSD’s efforts to persuade the voters to approve a tax increase had failed, as had its efforts to seek funds from the Kansas City Council and the state legislature. Again hesitating to impose a tax increase itself, the court continued its injunction against the Proposition C rollback to enable KCMSD to raise an additional $6.5 million. App. 138–142.
In November 1986, the District Court endorsed a marked expansion of the magnet school program. It adopted in substance a KCMSD proposal that every high school, every middle school, and half of the elementary schools in KCMSD become magnet schools by the 1991–1992 school year. It also approved the $142,736,025 budget proposed by KCMSD for implementation of the magnet school plan, as well as the expenditure of $52,858,301 for additional capital improvements. App. to Pet. for Cert. 120a–124a.
The District Court next considered, as the Court of Appeals had directed, how to shift the cost of desegregation to KCMSD. The District Court concluded that it would be “clearly inequitable” to require the population of KCMSD to pay half of the desegregation cost, and that “even with Court help it would be very difficult for the KCMSD to fund more than 25% of the costs of the entire remedial plan.” Id., at 112a. The court reasoned that the State should pay for most of the desegregation cost under the principle that “ ‘the person *41 who starts the fire has more responsibility for the damages caused than the person who fails to put it out,’ ” id. at 111a, and that apportionment of damages between the State and KCMSD according to fault was supported by the doctrine of comparative fault in tort, which had been adopted by the Missouri Supreme Court in Gustafson v. Benda, 661 S.W.2d 11 (1983). The District Court then held that the State and KCMSD were 75% and 25% at fault, respectively, and ordered them to share the cost of the desegregation remedy in that proportion. To ensure complete funding of the remedy, the court also held the two tortfeasors jointly and severally liable for the cost of the plan. App. to Pet. for Cert. 113a.
**1658 Three months later, the District Court adopted a plan requiring $187,450,334 in further capital improvements. 672 F.Supp. 400, 408 (WD Mo.1987). By then it was clear that KCMSD would lack the resources to pay for its 25% share of the

desegregation cost. KCMSD requested that the District Court order the State to pay for any amount that KCMSD could not meet. The District Court declined to impose a greater share of the cost on the State, but it accepted that KCMSD had “exhausted all available means of raising additional revenue.” Id., at 411. Finding itself with “no choice but to exercise its broad equitable powers and enter a judgment that will enable the KCMSD to raise its share of the cost of the plan,” ibid., and believing that the “United States Supreme Court has stated that a tax may be increased if ‘necessary to raise funds adequate to ... operate and maintain without racial discrimination a public school system,’ ” id., at 412 (quoting Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964)), the court ordered the KCMSD property tax levy raised from $2.05 to $4.00 per $100 of assessed valuation through the 1991–1992 fiscal year. 672 F.Supp., at 412–413.8 KCMSD was also directed to issue $150 *42 million in capital improvement bonds. Id., at 413. A subsequent order directed that the revenues generated by the property tax increase be used to retire the capital improvement bonds. App. to Pet. for Cert. 63a.
The State appealed, challenging the scope of the desegregation remedy, the allocation of the cost between the State and KCMSD, and the tax increase. A group of local taxpayers (Clark Group) and Jackson County, Missouri, also appealed from an order of the District Court denying their applications to intervene as of right. A panel of the Eighth Circuit affirmed in part and reversed in part. 855 F.2d 1295 (1988). With respect to the would-be intervenors, the Court of Appeals upheld the denial of intervention. Id., at 1316–1317. The scope of the desegregation order was also upheld against all the State’s objections, id., at 1301–1307, as was the allocation of costs, id., at 1307–1308.
Turning to the property tax increase, the Court of Appeals rejected the State’s argument that a federal court lacks the judicial power to order a tax increase. The Court of Appeals agreed with the District Court that Griffin v. Prince Edward County School Bd., supra, 377 U.S., at 233, 84 S.Ct., at 1234, had established the District Court’s authority to order county officials to levy taxes.9 Accepting also the District Court’s conclusion that state law prevented KCMSD from raising funds sufficient to implement the desegregation remedy, the Court of Appeals held that such state-law limitations must fall to the command of the Constitution. 855 F.2d, at 1313.
*43 Although the Court of Appeals thus “affirm[ed] the actions that the [District] [C]ourt has taken to this point,” id., at 1314, it agreed with the State that principles of federal/state comity required the District Court to use “minimally obtrusive methods to remedy constitutional violations.” Ibid. The Court of Appeals thus required that in the future, the District Court should not set the property tax rate itself but should authorize KCMSD to submit a levy to the state tax collection authorities and should enjoin the **1659 operation of state laws hindering KCMSD from adequately funding the remedy.10 The Court of Appeals reasoned that permitting the school board to set the levy itself would minimize disruption of state laws and processes and would ensure maximum consideration of the views of state and local officials. Ibid.11
The judgment of the Court of Appeals was entered on August 19, 1988. On September 16, 1988, the State filed with the Court of Appeals a document styled “State Appellants’ Petition for Rehearing En Banc.” App. 489–502. Jackson County also filed a “Petition ... for Rehearing by Court En Banc,” id., at 458–469, and Clark Group filed a “Petition for Rehearing En Banc with Suggestions in Support.” Id., at 470–488. On October 14, 1988, the Court of Appeals denied the petitions with an order stating as follows: “There are now three petitions for rehearing en banc pending before the Court. It is hereby ordered that all petitions for rehearing *44 en banc are denied.” App. to Pet. for Cert. 53a. The mandate of the Court of Appeals issued on October 14.
On December 31, 1988, 78 days after the issuance of the order denying rehearing and 134 days after the entry of the Court of Appeals’ judgment, Jackson County presented to this Court an application for extension of time in which to file a petition for certiorari.12 The Clerk of this Court returned the application to Jackson County as untimely. App. 503. According to the Clerk, the 90–day period in which Jackson County could petition for certiorari began to run on August 19, 1988, and expired on November 17, 1988. The Clerk informed Jackson County that although the timely filing of a “petition for rehearing” with the Court of Appeals tolls the running of the 90–day period, the filing of a “petition for rehearing en banc” does not toll the time.
On January 10, 1989, the Clerk of the Eighth Circuit issued an order amending the order of October 14, 1988. The amended order stated:
“This Court’s mandate which was issued on October 14, 1988, is hereby recalled.
“There are three (3) petitions for rehearing with suggestions for rehearing en banc pending before the Court. It is hereby ordered that the petitions for rehearing and the petitions for rehearing with suggestions for rehearing en banc are denied.

“This order is entered nunc pro tunc effective October 14, 1988. The Court’s mandate shall now issue forthwith.” Id., at 513 (emphasis added).
*45 The State, Jackson County, and Clark Group filed petitions for certiorari within 90 days of the October 14, 1988, order. The State’s petition argued that the remedies imposed by the District Court were excessive in scope and that the property tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We denied the petitions of **1660 Jackson County and Clark Group. 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). We granted the State’s petition, limited to the question of the property tax increase, but we requested the parties to address whether the petition was timely filed. 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1989).
II
[1] We deal first with the question of our own jurisdiction. Title 28 U.S.C. § 2101(c) requires that a petition for certiorari in a civil case be filed within 90 days of the entry of the judgment below. This 90–day limit is mandatory and jurisdictional. We have no authority to extend the period for filing except as Congress permits. Unless the State’s petition was filed within 90 days of the entry of the Court of Appeals’ judgment, we must dismiss the petition.
[2] Since Department of Banking of Nebraska v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254 (1942), it has been the consistent practice of the Court to treat petitions for rehearing timely presented to the Courts of Appeals as tolling the start of the period in which a petition for certiorari must be sought until rehearing is denied or a new judgment is entered on the rehearing.13 As *46 was explained in Pink, “[a] timely petition for rehearing ... operates to suspend the finality of the ... court’s judgment, pending the court’s further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties.” Id., at 266, 63 S.Ct., at 234. To put the matter another way, while the petition for rehearing is pending, there is no “judgment” to be reviewed. Cf. Zimmern v. United States, 298 U.S. 167, 169, 56 S.Ct. 706, 707, 80 L.Ed. 1118 (1936); Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 205, 63 S.Ct. 543, 544, 87 L.Ed. 714 (1943).
But as respondents point out, it has also been our consistent practice to treat suggestions for rehearing in banc presented to the United States Courts of Appeals that do not also include petitions for rehearing by the panel as not tolling the period for seeking certiorari. Our Rule 13.4 now expressly incorporates this practice. See n. 13, supra. This practice rests on the important distinction between “petitions for rehearing,” which are authorized by Rule 40(a) of the Federal Rules of Appellate Procedure, and “suggestions for rehearing in banc,” which are permitted by Rule 35(b).14 In *47 this case, the State styled its filing as a “Petition for Rehearing **1661 En Banc.”15 There is technically no provision for the filing of a “Petition for Rehearing En Banc” in the Rules of Appellate Procedure. A party may petition for rehearing before the panel under Rule 40, file a suggestion for a rehearing in banc under Rule 35, or do both, separately or together. The State’s filing on its face did not exactly comport with any of these options. If the filing was no more than a suggestion for rehearing in banc, as respondents insist, the petition for certiorari was untimely. But if, as the State argues, its papers qualified for treatment as a petition for rehearing within the meaning of Rule 40 as well as a suggestion for rehearing in banc under Rule 35, the 90–day period for seeking certiorari began on October 14, 1988, and the State’s petition for certiorari was timely filed.
[3] Though the matter is not without difficulty, we conclude that the State has the better of the argument. It appears to us that the Court of Appeals interpreted and actually treated the State’s papers as including a petition for rehearing before the panel. 16 If the Eighth Circuit had regarded the State’s *48 papers as only a suggestion for rehearing in banc, without a petition for panel rehearing as well, Rules 35(c) and 41(a) of the Federal Rules of Appellate Procedure would have required the court to issue its mandate within 21 days of the entry of the panel’s judgment.17 The Court of Appeals did not issue the mandate within 21 days of the panel’s judgment but issued it only upon its October 14 order denying the State’s petition. Nor did the Court of Appeals issue an order extending the time for the issuance of the mandate, as it may do under Rule 41(a).
Respondents insist that the Eighth Circuit routinely withholds the mandate during the pendency of a suggestion for rehearing in banc even without the order contemplated by Rule 41(a) and point us to United States v. Samuels, 808 F.2d 1298, 1299 (1987), where the Chief Judge of that court wrote separately respecting the denial of rehearing in banc to emphasize that the Eighth Circuit has done so. The Court of Appeals may not on every occasion have observed the technicalities of Rules 35(c)

and 41(a), but we cannot conclude from the respondents’ submission that the Eighth Circuit has engaged in a systematic practice of ignoring those formalities. **1662 We presume that the Eighth Circuit withheld the mandate *49 because, under Rule 41(a), it must do so when a petition for panel rehearing is pending.
It is true that the Eighth Circuit’s original October 14 order stated that there were three “petitions for rehearing en banc pending before the Court” and that all “petitions for rehearing en banc” were denied. Only after this Court’s Clerk informed Jackson County that its application for extension of time was untimely did the Court of Appeals amend its October 14 order nunc pro tunc to state that there were “petitions for rehearing with suggestions for rehearing en banc pending before the Court” and that those “petitions for rehearing ... with suggestions for rehearing en banc” were denied. Respondents argue that the original order is more probative of the Eighth Circuit’s contemporaneous treatment of the State’s petition, and they contend that order clearly does not treat the petition as requesting panel rehearing. They insist that the Eighth Circuit cannot, post hoc, amend its order to make it appear that it took an action which it never took.
[4] [5] The Court of Appeals of course cannot make the record what it is not. The time for applying for certiorari will not be tolled when it appears that the lower court granted rehearing or amended its order solely for the purpose of extending that time. Cf. Wayne United Gas Co. v. Owens–Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557 (1937); Conboy v. First National Bank of Jersey City, 203 U.S. 141, 145, 27 S.Ct. 50, 52, 51 L.Ed. 128 (1906); Credit Co. v. Arkansas Central R. Co., 128 U.S. 258, 261, 9 S.Ct. 107, 108, 32 L.Ed. 448 (1888). But, as we see it, that is not what happened in this case: the Eighth Circuit originally entered an order denying the “petitions for rehearing en banc” because the papers filed with the court were styled as “petitions for rehearing en banc.” When it was subsequently brought to the Eighth Circuit’s attention that it had neglected to refer to those papers in its order as petitions for rehearing with suggestions for rehearing in banc, the court amended its order nunc pro tunc to ensure that the order reflected the reality of the action taken on October 14. The Eighth Circuit surely knows *50 more than we do about the meaning of its orders, and we accept its action for what it purports to be.
The Eighth Circuit, unlike other Circuits, does not have a published practice of treating all suggestions for rehearing in banc, no matter how styled, as containing both petitions for panel rehearing and suggestions for rehearing in banc. Cf. Gonzalez v. Southern Pacific Transportation Co., 773 F.2d 637, 639 (CA5 1985); Eleventh Circuit Rule 35–6. Respondents argue that accepting the Eighth Circuit’s interpretation of its October 14 order in this case risks confusion in future cases and invites the lower courts to pick and choose between those parties whose “petitions for rehearing in banc” they view favorably and wish to give additional time for seeking review in this Court, and those whose petitions they wish to give no such aid.
[6] We share respondents’ concern about the stability and clarity of jurisdictional rules. It is undoubtedly desirable to have published rules of procedure giving parties fair warning of the treatment afforded petitions for rehearing and suggestions for rehearing in banc. Regular adherence to published rules of procedure best promotes the principles of fairness, stability, and uniformity that those rules are designed to advance. But in the end we accept the Eighth Circuit’s interpretation of its October 14 order and will not assume that its action in this case is not in accord with its regular practice.
III
[7] We turn to the tax increase imposed by the District Court. The State urges us to hold that the tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We find it unnecessary to reach the difficult constitutional issues, for **1663 we agree with the State that the tax increase contravened the principles of comity that must govern the exercise of the District Court’s equitable discretion in this area.
*51 [8] It is accepted by all the parties, as it was by the courts below, that the imposition of a tax increase by a federal court was an extraordinary event. In assuming for itself the fundamental and delicate power of taxation the District Court not only intruded on local authority but circumvented it altogether. Before taking such a drastic step the District Court was obliged to assure itself that no permissible alternative would have accomplished the required task. We have emphasized that although the “remedial powers of an equity court must be adequate to the task, ... they are not unlimited,” Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971), and one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions. Especially is this true where, as here, those institutions are ready, willing, and—but for the operation of state law curtailing their powers—

able to remedy the deprivation of constitutional rights themselves.
The District Court believed that it had no alternative to imposing a tax increase. But there was an alternative, the very one outlined by the Court of Appeals: it could have authorized or required KCMSD to levy property taxes at a rate adequate to fund the desegregation remedy and could have enjoined the operation of state laws that would have prevented KCMSD from exercising this power. 855 F.2d, at 1314; see infra, at 1664. The difference between the two approaches is far more than a matter of form. Authorizing and directing local government institutions to devise and implement remedies not only protects the function of those institutions but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems.
[9] [10] As Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 755–756, 99 L.Ed. 1083 (1955), observed, local authorities have the “primary responsibility for elucidating, assessing, and solving” the problems of desegregation. See also *52 Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). This is true as well of the problems of financing desegregation, for no matter has been more consistently placed upon the shoulders of local government than that of financing public schools. As was said in another context, “[t]he very complexity of the problems of financing and managing a ... public school system suggests that ‘there will be more than one constitutionally permissible method of solving them,’ and that ... ‘the legislature’s efforts to tackle the problems’ should be entitled to respect.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973) (quoting Jefferson v. Hackney, 406 U.S. 535, 546–547, 92 S.Ct. 1724, 1731–1732, 32 L.Ed.2d 285 (1972)). By no means should a district court grant local government carte blanche, cf. Swann v. Charlotte–Mecklenburg Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), but local officials should at least have the opportunity to devise their own solutions to these problems. Cf. Sixty– seventh Minnesota State Senate v. Beens, 406 U.S. 187, 196, 92 S.Ct. 1477, 1483, 32 L.Ed.2d 1 (1972) (per curiam ).
The District Court therefore abused its discretion in imposing the tax itself. The Court of Appeals should not have allowed the tax increase to stand and should have reversed the District Court in this respect. See Langnes v. Green, 282 U.S. 531, 541– 542, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931).
IV
We stand on different ground when we review the modifications to the District Court’s order made by the Court of Appeals. **1664 As explained supra, at 1658, the Court of Appeals held that the District Court in the future should authorize KCMSD to submit a levy to the state tax collection authorities adequate to fund its budget and should enjoin the operation of state laws that would limit or reduce the levy below that amount. 855 F.2d, at 1314.18
*53 [11] The State argues that the funding ordered by the District Court violates principles of equity and comity because the remedial order itself was excessive. As the State puts it, “[t]he only reason that the court below needed to consider an unprecedented tax increase was the equally unprecedented cost of its remedial programs.” Brief for Petitioners 42. We think this argument aims at the scope of the remedy rather than the manner in which the remedy is to be funded and thus falls outside our limited grant of certiorari in this case. As we denied certiorari on the first question presented by the State’s petition, which did challenge the scope of the remedial order, we must resist the State’s efforts to argue that point now. We accept, without approving or disapproving, the Court of Appeals’ conclusion that the District Court’s remedy was proper. See Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 754, 91 L.Ed. 849 (1947).
[12] The State has argued here that the District Court, having found the State and KCMSD jointly and severally liable, should have allowed any monetary obligations that KCMSD *54 could not meet to fall on the State rather than interfere with state law to permit KCMSD to meet them.19 Under the circumstances of this case, we cannot say it was an abuse of discretion for the District Court to rule that KCMSD should be responsible for funding its share of the remedy. The State strenuously opposed efforts by respondents to make it responsible for the cost of implementing the order and had secured a reversal of the District Court’s earlier decision placing on it all of the cost of substantial portions of the order. See 807 F.2d, at 684–685. The District Court declined to require the State to pay for KCMSD’s obligations because it believed that the Court of Appeals had ordered it to allocate the costs between the two governmental entities. See 672 F.Supp., at 411. Furthermore, if the District Court had chosen the route now suggested by the State, implementation of the remedial order might have been delayed if the State resisted efforts by KCMSD to obtain contribution.

It is true that in Milliken v. Bradley, 433 U.S., at 291, 97 S.Ct., at 2763, we stated that **1665 the enforcement of a money judgment against the State did not violate principles of federalism because “[t]he District Court ... neither attempted to restructure local governmental entities nor ... mandat[ed] a particular method or structure of state or local financing.” But we did not there state that a district court could never set aside state laws preventing local governments from raising funds sufficient to satisfy their constitutional obligations just because those funds could also be obtained from the States. To the contrary, 42 U.S.C. § 1983, on which respondents’ complaint is based, is authority enough to require each tortfeasor to pay its share of the cost of the remedy if it can, and apportionment of the cost is part of the equitable power of the District Court. Cf. Milliken v. Bradley, supra, at 289–290, 97 S.Ct., at 2761–2762.
*55 [13] We turn to the constitutional issues. The modifications ordered by the Court of Appeals cannot be assailed as invalid under the Tenth Amendment. “The Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment.” 433 U.S., at 291, 97 S.Ct., at 2762. “The Fourteenth Amendment ... was avowedly directed against the power of the States,” Pennsylvania v. Union Gas Co., 491 U.S. 1, 42, 109 S.Ct. 2273, 2303, 105 L.Ed.2d 1 (1989) (SCALIA, J., concurring in part and dissenting in part), and so permits a federal court to disestablish local government institutions that interfere with its commands. Cf. New York City Bd. of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393–1394, 12 L.Ed.2d 506 (1964).
[14] [15] Finally, the State argues that an order to increase taxes cannot be sustained under the judicial power of Article III. Whatever the merits of this argument when applied to the District Court’s own order increasing taxes, a point we have not reached, see supra, at 1664, a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court. We held as much in Griffin v. Prince Edward County School Bd., 377 U.S., at 233, 84 S.Ct., at 1234, where we stated that a District Court, faced with a county’s attempt to avoid desegregation of the public schools by refusing to operate those schools, could “require the [County] Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system....” Griffin followed a long and venerable line of cases in which this Court held that federal courts could issue the writ of mandamus to compel local governmental bodies to levy taxes adequate to satisfy their debt obligations. See, e.g., Louisiana ex rel. Hubert v. Mayor and Council of New Orleans, 215 U.S. 170, 30 S.Ct. 40, 54 L.Ed. 144 (1909); Graham v. Folsom, 200 U.S. 248, 26 S.Ct. 245, 50 L.Ed. 464 (1906); Wolff v. New Orleans, 103 U.S. 358, 26 L.Ed. 395 (1881); United States v. New Orleans, 98 U.S. 381, 25 L.Ed. 225 (1879); Heine v. Levee *56 Commissioners, 19 Wall. 655, 657, 22 L.Ed. 223 (1874); City of Galena v. Amy, 5 Wall. 705, 18 L.Ed. 560 (1867); Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403 (1867); Board of Commissioners of Knox County v. Aspinwall, 24 How. 376, 16 L.Ed. 735 (1861).20
**1666 [16] The State maintains, however, that even under these cases, the federal judicial power can go no further than to require local governments to levy taxes as authorized under state law. In other words, the State argues that federal courts cannot set aside state-imposed limitations on local taxing authority because to do so is to do more than to require the local government “to exercise the power that is theirs.” We disagree. This argument was rejected as early as Von Hoffman v. City of Quincy, supra. There the holder of bonds issued by the city sought a writ of mandamus against the city requiring it to levy taxes sufficient to pay interest *57 coupons then due. The city defended based on a state statute that limited its power of taxation, and the Circuit Court refused to mandamus the city. This Court reversed, observing that the statute relied on by the city was passed after the bonds were issued and holding that because the city had ample authority to levy taxes to pay its bonds when they were issued, the statute impaired the contractual entitlements of the bondholders, contrary to Art. I, § 10, cl. 1, of the Constitution, under which a State may not pass any law impairing the obligation of contracts. The statutory limitation, therefore, could be disregarded and the city ordered to levy the necessary taxes to pay its bonds.
[17] It is therefore clear that a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation. In Von Hoffman, the limitation was disregarded because of the Contract Clause. Here, the KCMSD may be ordered to levy taxes despite the statutory limitations on its authority in order to compel the discharge of an obligation imposed on KCMSD by the Fourteenth Amendment. To hold otherwise would fail to take account of the obligations of local governments, under the Supremacy Clause, to fulfill the requirements that the Constitution imposes on them. However wide the discretion of local authorities in fashioning desegregation remedies may be, “if a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.” North Carolina Bd. of

Education v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971). Even though a particular remedy may not be required in every case to vindicate constitutional guarantees, where (as here) it has been found that a particular remedy is required, the State cannot hinder the *58 process by preventing a local government from implementing that remedy.21
**1667 Accordingly, the judgment of the Court of Appeals is affirmed insofar as it required the District Court to modify its funding order and reversed insofar as it allowed the tax increase imposed by the District Court to stand. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice KENNEDY, with whom THE CHIEF JUSTICE, Justice O’CONNOR, and Justice SCALIA join, concurring in part and concurring in the judgment.
In agreement with the Court that we have jurisdiction to decide this case, I join Parts I and II of the opinion. I agree also that the District Court exceeded its authority by attempting to impose a tax. The Court is unanimous in its holding, that the Court of Appeals’ judgment affirming “the actions that the [district] court has taken to this point,” 855 F.2d 1295, 1314 (CA8 1988), must be reversed. This is consistent with our precedents and the basic principles defining judicial power.
In my view, however, the Court transgresses these same principles when it goes further, much further, to embrace by broad dictum an expansion of power in the Federal Judiciary beyond all precedent. Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards *59 fundamental precepts for the democratic control of public institutions. I cannot acquiesce in the majority’s statements on this point, and should there arise an actual dispute over the collection of taxes as here contemplated in a case that is not, like this one, premature, we should not confirm the outcome of premises adopted with so little constitutional justification. The Court’s statements, in my view, cannot be seen as necessary for its judgment, or as precedent for the future, and I cannot join Parts III and IV of the Court’s opinion.
I
Some essential litigation history is necessary for a full understanding of what is at stake here and what will be wrought if the implications of all the Court’s statements are followed to the full extent. The District Court’s remedial plan was proposed for the most part by the Kansas City, Missouri, School District (KCMSD) itself, which is in name a defendant in the suit. Defendants, and above all defendants that are public entities, act in the highest and best tradition of our legal system when they acknowledge fault and cooperate to suggest remedies. But in the context of this dispute, it is of vital importance to note the KCMSD demonstrated little concern for the fiscal consequences of the remedy that it helped design.
As the District Court acknowledged, the plaintiffs and the KCMSD pursued a “friendly adversary” relationship. Throughout the remedial phase of the litigation, the KCMSD proposed ever more expensive capital improvements with the agreement of the plaintiffs, and the State objected. Some of these improvements involved basic repairs to deteriorating facilities within the school system. The KCMSD, however, devised a broader concept for districtwide improvement, and the District Court approved it. The plan involved a variation of the magnet school concept. Magnet schools, as the majority opinion notes, ante, at 1657, n. 6, offer special programs, *60 often used to encourage voluntary movement of students within the district in a pattern that aids desegregation.
Although we have approved desegregation plans involving magnet schools of this conventional definition, see Milliken v. Bradley, 433 U.S. 267, 272, 97 S.Ct. 2749, 2753, 53 L.Ed.2d 745 (1977), the District Court found this insufficient. App. to Pet. for Cert. 122a. Instead, the court and the KCMSD decided **1668 to make a magnet of the district as a whole. The hope was to draw new nonminority students from outside the district. The KCMSD plan adopted by the court provided that “every senior high school, every middle school, and approximately one-half of the elementary schools in the KCMSD will become magnet schools by the school year 1991–92.” Id., at 121a. The plan was intended to “improve the quality of education of all KCMSD students.” Id., at 103a. The District Court was candid to acknowledge that the “long term goal of this Court’s remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district.” Id., at 145a–146a (emphasis in

original).
It comes as no surprise that the cost of this approach to the remedy far exceeded KCMSD’s budget, or for that matter, its authority to tax. A few examples are illustrative. Programs such as a “performing arts middle school,” id., at 118a, a “technical magnet high school” that “will offer programs ranging from heating and air conditioning to cosmetology to robotics,” id., at 75a, were approved. The plan also included a “25 acre farm and 25 acre wildland area” for science study. Id., at 20a. The court rejected various proposals by the State to make “capital improvements necessary to eliminate health and safety hazards and to provide a good learning environment,” because these proposals failed to “consider the criteria of suburban comparability.” Id., at 70a. The District Court stated: “This ‘patch and repair’ approach proposed by the State would not achieve suburban comparability or the *61 visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint.” Id., at 70a. Finding that construction of new schools would result in more “attractive” facilities than renovation of existing ones, the District Court approved new construction at a cost ranging from $61.80 per square foot to $95.70 per square foot as distinct from renovation at $45 per square foot. Id., at 76a.
By the time of the order at issue here, the District Court’s remedies included some “$260 million in capital improvements and a magnet-school plan costing over $200 million.” Missouri v. Jenkins, 491 U.S. 274, 276, 109 S.Ct. 2463, 2465, 105 L.Ed.2d 229 (1989). And the remedial orders grew more expensive as shortfalls in revenue became more severe. As the Eighth Circuit judges dissenting from denial of rehearing in banc put it: “The remedies ordered go far beyond anything previously seen in a school desegregation case. The sheer immensity of the programs encompassed by the district court’s order—the large number of magnet schools and the quantity of capital renovations and new construction—are concededly without parallel in any other school district in the country.” 855 F.2d, at 1318–1319.
The judicial taxation approved by the Eighth Circuit is also without parallel. Other Circuits that have faced funding problems arising from remedial decrees have concluded that, while courts have undoubted power to order that schools operate in compliance with the Constitution, the manner and methods of school financing are beyond federal judicial authority. See National City Bank v. Battisti, 581 F.2d 565 (CA6 1977); Plaquemines Parish School Bd. v. United States, 415 F.2d 817 (CA5 1969). The Third Circuit, while leaving open the possibility that in some situations a court-ordered tax might be appropriate, has also declined to approve judicial interference in taxation. Evans v. Buchanan, 582 F.2d 750 (1978), cert. denied sub nom. Alexis I. du Pont *62 School Dist. v. Evans, 447 U.S. 916, 100 S.Ct. 3004, 64 L.Ed.2d 865 (1980). The Sixth Circuit, in a somewhat different context, has recognized the severe intrusion caused by federal court interference in state and local financing. **1669 Kelley v. Metropolitan County Bd. of Education of Nashville and Davidson County, Tenn., 836 F.2d 986 (1987), cert. denied, 487 U.S. 1206, 108 S.Ct. 2848, 101 L.Ed.2d 885 (1988).
Unlike these other courts, the Eighth Circuit has endorsed judicial taxation, first in dicta from cases in which taxation orders were in fact disapproved. United States v. Missouri, 515 F.2d 1365, 1372–1373 (1975) (District Court may “implement its desegregation order by directing that provision be made for the levying of taxes”); Liddell v. Missouri, 731 F.2d 1294, 1320, cert. denied sub nom. Leggett v. Liddell, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984) (District Court may impose tax “after exploration of every other fiscal alternative”). The case before us represents the first in which a lower federal court has in fact upheld taxation to fund a remedial decree.
For reasons explained below, I agree with the Court that the Eighth Circuit’s judgment affirming the District Court’s direct levy of a property tax must be reversed. I cannot agree, however, that we “stand on different ground when we review the modifications to the District Court’s order made by the Court of Appeals,” ante, at 1663. At the outset, it must be noted that the Court of Appeals made no “modifications” to the District Court’s order. Rather, it affirmed “the actions that the court has taken to this point.” 855 F.2d, at 1314. It is true that the Court of Appeals went on “to consider the procedures which the district court should use in the future.” Ibid. (emphasis added). But the Court of Appeals’ entire discussion of “a preferable method for future funding,” ibid., can be considered no more than dictum, the court itself having already upheld the District Court’s actions to date. No other order of the District Court was before the Court of Appeals.
The Court states that the Court of Appeals’ discussion of future taxation was not dictum because although the Court of *63 Appeals “did not require the District Court to reverse the tax increase that it had imposed for prior fiscal years,” it “required the District Court to use the less obtrusive procedures beginning with the fiscal year commencing after the remand.” Ante, at 1664, n. 18. But no such distinction is found in the Court of Appeals’ opinion. Rather, the court “affirm[ed] the actions that the [district] court has taken to this point,” which included the District Court’s October 27, 1987, order increasing property taxes in the KCMSD through the end of fiscal year 1991–1992. The District Court’s January 3, 1989, order does not support, but refutes, the Court’s characterization. The District Court rejected a request by the KCMSD to increase the property tax rate

using the method endorsed by the Eighth Circuit from $4 to $4.23 per $100 of assessed valuation. The District Court reasoned that an increase in 1988 property taxes would be difficult to administer and cause resentment among taxpayers, and that an increase in 1989 property taxes would be premature because it was not yet known whether an increase would be necessary to fund expenditures. App. 511–512. In rejecting the KCMSD’s request, the District Court left in effect the $4.00 rate it had established in its October 27, 1987, order.
Whatever the Court thinks of the Court of Appeals’ opinion, the District Court on remand appears to have thought it was under no compulsion to disturb its existing order establishing the $4 property tax rate through fiscal year 1991–1992 unless and until it became necessary to raise property taxes even higher. The Court’s discussion today, and its stated approval of the “method for future funding” found “preferable” by the Court of Appeals, is unnecessary for the decision in this case. As the Court chooses to discuss the question of future taxation, however, I must state my respectful disagreement with its analysis and conclusions on this vital question.
The premise of the Court’s analysis, I submit, is infirm. Any purported distinction between direct imposition of a tax *64 by the **1670 federal court and an order commanding the school district to impose the tax is but a convenient formalism where the court’s action is predicated on elimination of state-law limitations on the school district’s taxing authority. As the Court describes it, the local KCMSD possesses plenary taxing powers, which allow it to impose any tax it chooses if not “hinder[ed]” by the Missouri Constitution and state statutes. Ante, at 1666. This puts the conclusion before the premise. Local government bodies in Missouri, as elsewhere, must derive their power from a sovereign, and that sovereign is the State of Missouri. See Mo. Const., Art. X, § 1 (political subdivisions may exercise only “[tax] power granted to them” by Missouri General Assembly). Under Missouri law, the KCMSD has power to impose a limited property tax levy up to $1.25 per $100 of assessed value. The power to exact a higher rate of property tax remains with the people, a majority of whom must agree to empower the KCMSD to increase the levy up to $3.75 per $100, and two-thirds of whom must agree for the levy to go higher. See Mo. Const., Art. X, §§ 11(b), (c). The Missouri Constitution states that “[p]roperty taxes and other local taxes ... may not be increased above the limitations specified herein without direct voter approval as provided by this constitution.” Mo. Const., Art. X, § 16.
For this reason, I reject the artificial suggestion that the District Court may, by “prevent[ing] ... officials from applying state law that would interfere with the willing levy of property taxes by KCMSD,” ante, at 1666, n. 20, cause the KCMSD to exercise power under state law. State laws, including taxation provisions legitimate and constitutional in themselves, define the power of the KCMSD. Cf. Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 695, 99 S.Ct. 3055, 3079, 61 L.Ed.2d 823 (1979) (whether a state agency “may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful”). Absent a change in state law, no increase in property taxes could take *65 place in the KCMSD without a federal court order. It makes no difference that the KCMSD stands “ready, willing, and ... able” to impose a tax not authorized by state law. Ante, at 1663. Whatever taxing power the KCMSD may exercise outside the boundaries of state law would derive from the federal court. The Court never confronts the judicial authority to issue an order for this purpose. Absent a change in state law, the tax is imposed by federal authority under a federal decree. The question is whether a district court possesses a power to tax under federal law, either directly or through delegation to the KCMSD.
II
Article III of the Constitution states that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The description of the judicial power nowhere includes the word “tax” or anything that resembles it. This reflects the Framers’ understanding that taxation was not a proper area for judicial involvement. “The judiciary ... has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961) (A. Hamilton).
Our cases throughout the years leave no doubt that taxation is not a judicial function. Last Term we rejected the invitation to cure an unconstitutional tax scheme by broadening the class of those taxed. We said that such a remedy “could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court.” Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 818, 109 S.Ct. 1500, 1509, 103 L.Ed.2d 891 (1989). Our statement in Davis rested on the explicit holding in Moses Lake Homes, Inc. v. Grant County, 365 U.S. 744, 81 S.Ct. 870, 6 L.Ed.2d 66 (1961), in which we reversed a judgment directing a District Court **1671 to decree a valid tax in place of an invalid one that the State had attempted to enforce:

*66 “The effect of the Court’s remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one.” Id., at 752, 81 S.Ct., at 874.
The nature of the District Court’s order here reveals that it is not a proper exercise of the judicial power. The exercise of judicial power involves adjudication of controversies and imposition of burdens on those who are parties before the Court. The order at issue here is not of this character. It binds the broad class of all KCMSD taxpayers. It has the purpose and direct effect of extracting money from persons who have had no presence or representation in the suit. For this reason, the District Court’s direct order imposing a tax was more than an abuse of discretion, for any attempt to collect the taxes from the citizens would have been a blatant denial of due process.
Taxation by a legislature raises no due process concerns, for the citizens’ “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule.” Bi–Metallic Co. v. Colorado State Bd. of Equalization, 239 U.S. 441, 445, 36 S.Ct. 141, 142, 60 L.Ed. 372 (1915). The citizens who are taxed are given notice and a hearing through their representatives, whose power is a direct manifestation of the citizens’ consent. A true exercise of judicial power provides due process of another sort. Where money is extracted from parties by a court’s judgment, the adjudication itself provides the notice and opportunity to be heard that due process demands before a citizen may be deprived of property.
The order here provides neither of these protections. Where a tax is imposed by a governmental body other than *67 the legislature, even an administrative agency to which the legislature has delegated taxing authority, due process requires notice to the citizens to be taxed and some opportunity to be heard. See, e.g., Londoner v. Denver, 210 U.S. 373, 385–386, 28 S.Ct. 708, 713–714, 52 L.Ed. 1103 (1908). The citizens whose tax bills would have been doubled under the District Court’s direct tax order would not have had these protections. The taxes were imposed by a District Court that was not “representative” in any sense, and the individual citizens of the KCMSD whose property (they later learned) was at stake were neither served with process nor heard in court. The method of taxation endorsed by today’s dicta suffers the same flaw, for a district court order that overrides the citizens’ state-law protection against taxation without referendum approval can in no sense provide representational due process. No one suggests the KCMSD taxpayers are parties.
A judicial taxation order is but an attempt to exercise a power that always has been thought legislative in nature. The location of the federal taxing power sheds light on today’s attempt to approve judicial taxation at the local level. Article I, § 1, states that “[a ]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” (Emphasis added.) The list of legislative powers in Article I, § 8, cl. 1, begins with the statement that “[t]he Congress shall have Power To lay and collect Taxes....” As we have said, “[t]axation is a legislative function, and Congress ... is the sole organ for levying taxes.” National Cable Television Assn., Inc. v. United States, 415 U.S. 336, 340, 94 S.Ct. 1146, 1149, 39 L.Ed.2d 370 (1974) (citing Article I, § 8, cl. 1).
**1672 True, today’s case is not an instance of one branch of the Federal Government invading the province of another. It is instead one that brings the weight of federal authority upon a local government and a State. This does not detract, however, from the fundamental point that the Judiciary is not free to exercise all federal power; it may exercise only the *68 judicial power. And the important effects of the taxation order discussed here raise additional federalism concerns that counsel against the Court’s analysis.
In perhaps the leading case concerning desegregation remedies, Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), we upheld a prospective remedial plan, not a “money judgment,” ante, at 1665, against a State’s claim that principles of federalism had been ignored in the plan’s implementation. In so doing the Court emphasized that the District Court had “neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state or local financing.” 433 U.S., at 291, 97 S.Ct., at 2763. No such assurances emerge from today’s decision, which endorses federal-court intrusion into these precise matters. Our statement in a case decided more than 100 years ago should apply here.
“This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important.” Rees v. City of Watertown, 19 Wall. 107, 116–117, 22 L.Ed.

72 (1874).
The confinement of taxation to the legislative branches, both in our Federal and State Governments, was not random. It reflected our ideal that the power of taxation must be under the control of those who are taxed. This truth animated all our colonial and revolutionary history.
“Your Memorialists conceive it to be a fundamental Principle ... without which Freedom can no Where exist, that the People are not subject to any Taxes but such as are laid on them by their own Consent, or by those who are legally appointed to represent them: Property must become too precarious for the Genius of a free People *69 which can be taken from them at the Will of others, who cannot know what Taxes such people can bear, or the easiest Mode of raising them; and who are not under that Restraint, which is the greatest Security against a burthensome Taxation, when the Representatives themselves must be affected by every tax imposed on the People.” Virginia Petitions to King and Parliament, December 18, 1764, reprinted in The Stamp Act Crisis 41 (E. Morgan ed. 1952).
The power of taxation is one that the Federal Judiciary does not possess. In our system “the legislative department alone has access to the pockets of the people,” The Federalist No. 48, p. 334 (J. Cooke ed. 1961) (J. Madison), for it is the Legislature that is accountable to them and represents their will. The authority that would levy the tax at issue here shares none of these qualities. Our Federal Judiciary, by design, is not representative or responsible to the people in a political sense; it is independent. Federal judges do not depend on the popular will for their office. They may not even share the burden of taxes they attempt to impose, for they may live outside the jurisdiction their orders affect. And federal judges have no fear that the competition for scarce public resources could result in a diminution of their salaries. It is not surprising that imposition of taxes by an authority so insulated from public communication or control can lead to deep feelings of frustration, powerlessness, and anger on the part of taxpaying citizens.
The operation of tax systems is among the most difficult aspects of public administration. **1673 It is not a function the Judiciary as an institution is designed to exercise. Unlike legislative bodies, which may hold hearings on how best to raise revenues, all subject to the views of constituents to whom the Legislature is accountable, the Judiciary must grope ahead with only the assistance of the parties, or perhaps random amici curiae. Those hearings would be without principled direction, for there exists no body of juridical axioms by *70 which to guide or review them. On this questionable basis, the Court today would give authority for decisions that affect the life plans of local citizens, the revenue available for competing public needs, and the health of the local economy.
Day-to-day administration of the tax must be accomplished by judicial trial and error, requisitioning the staff of the existing tax authority, or the hiring of a staff under the direction of the judge. The District Court orders in this case suggest the pitfalls of the first course. See App. to Pet. for Cert. 55a (correcting order for assessment of penalties for nonpayment that “mistakenly” assessed penalties on an extra tax year); id., at 57a (“clarify[ing]” the inclusion of savings and loan institutions, estates, trusts, and beneficiaries in the court’s income tax surcharge and enforcement procedures). Forcing citizens to make financial decisions in fear of the fledgling judicial tax collector’s next misstep must detract from the dignity and independence of the federal courts.
The function of hiring and supervising a staff for what is essentially a political function has other complications. As part of its remedial order, for example, the District Court ordered the hiring of a “public information specialist,” at a cost of $30,000. The purpose of the position was to “solicit community support and involvement” in the District Court’s desegregation plan. See id., at 191a. This type of order raises a substantial question whether a district court may extract taxes from citizens who have no right of representation and then use the funds for expression with which the citizens may disagree. Cf. Abood v. Detroit Bd. of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977).
The Court relies on dicta from Griffin v. Prince Edward County School Bd., 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964) to support its statements on judicial taxation. In Griffin, the Court faced an unrepentent and recalcitrant school board that attempted to provide financial support for white schools while refusing to operate schools for black schoolchildren. We stated that the District Court could “require the Supervisors to exercise the *71 power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system.” Id., at 233, 84 S.Ct., at 1234 (emphasis added). There is no occasion in this case to discuss the full implications of Griffin ‘s observation, for it has no application here. Griffin endorsed the power of a federal court to order the local authority to exercise existing authority to tax.
This case does not involve an order to a local government with plenary taxing power to impose a tax, or an order directed at

one whose taxing power has been limited by a state law enacted in order to thwart a federal court order. An order of this type would find support in the Griffin dicta, and present a closer question than the one before us. Yet that order might implicate as well the “perversion of the normal legislative process” that we have found troubling in other contexts. See Spallone v. United States, 493 U.S. 265, 280, 110 S.Ct. 625, 634, 107 L.Ed.2d 644 (1990). A legislative vote taken under judicial compulsion blurs lines of accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise. For this reason, it is difficult to see the difference between an order to tax and direct judicial imposition of a tax.
The Court asserts that its understanding of Griffin follows from cases in which the Court upheld the use of mandamus to compel local officials to collect taxes that were authorized under state law in order to meet bond **1674 obligations. See ante, at 1665–1666. But as discussed, supra, at 1669–1670, there was no state authority in this case for the KCMSD to exercise. In this situation, there could be no authority for a judicial order touching on taxation. See United States v. County of Macon, 99 U.S. 582, 591, 25 L.Ed. 331 (1879) (where the statute empowering the corporation to issue bonds contains a limit on the taxing power, federal court has no power of mandamus to compel a levy in excess of that power; “We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new *72 rights or confer new powers. All we can do is to bring existing powers into operation”).
The Court cites a single case, Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403 (1867), for the proposition that a federal court may set aside state taxation limits that interfere with the remedy sought by the district court. But the Court does not heed Von Hoffman’s holding. There a municipality had authorized a tax levy in support of a specific bond obligation, but later limited the taxation authority in a way that impaired the bond obligation. The Court held the subsequent limitation itself unconstitutional, a violation of the Contracts Clause. Once the limitation was held invalid, the original specific grant of authority remained. There is no allegation here, nor could there be, that the neutral tax limitations imposed by the people of Missouri are unconstitutional. Compare Tr. of Oral Arg. 41 (“nothing in the record to suggest” that tax limitation was intended to frustrate desegregation) with Griffin, supra, 377 U.S., at 221, 84 S.Ct., at 1228 (State Constitution amended as part of state and school district plan to resist desegregation). The majority appears to concede that the Missouri tax law does not violate a specific provision of the Constitution, stating instead that state laws may be disregarded on the basis of a vague “reason based in the Constitution.” Ante, at 1666. But this broad suggestion does not follow from the holding in Von Hoffman.
Examination of the “long and venerable line of cases,” ante, at 1665, cited by the Court to endorse judicial taxation reveals the lack of real support for the Court’s rationale. One group of these cases holds simply that the common-law writ of mandamus lies to compel a local official to perform a clear duty imposed by state law. See United States v. New Orleans, 98 U.S. 381, 25 L.Ed. 225 (1879) (reaffirming legislative nature of the taxing power and the availability of mandamus to compel officers to levy a tax where they were required by state law to do so); City of Galena v. Amy, 5 Wall. 705, 18 L.Ed. 560 (1867) (mandamus to state officials to collect a tax authorized by state law *73 in order to fund a state bond obligation); Board of Commissioners of Knox County v. Aspinwall, 24 How. 376, 16 L.Ed. 735 (1861) (state statute gave tax officials authority to levy the tax needed to satisfy a bond obligation and explicitly required them to do so; mandamus was proper to compel performance of this “plain duty” under state law). These common-law mandamus decisions do not purport to involve the Federal Constitution or remedial powers.
A second set of cases, including the Von Hoffman case relied upon by the Court, invalidates on Contracts Clause grounds statutory limitations on taxation power passed subsequent to grants of tax authority in support of bond obligations. See Louisiana ex rel. Hubert v. Mayor and Council of New Orleans, 215 U.S. 170, 30 S.Ct. 40, 54 L.Ed. 144 (1909) (state law authorized municipal tax in support of bond obligation; subsequent legislation removing the authority is invalid under Contracts Clause, and mandamus will lie against municipal official to collect the tax); Graham v. Folsom, 200 U.S. 248, 26 S.Ct. 245, 50 L.Ed. 464 (1906) (where state municipality enters into a bond obligation based on delegated state power to collect a tax, State may not by subsequent abolition of the municipality remove the taxing power; such an act is itself invalid as a **1675 violation of the Contracts Clause); Wolff v. New Orleans, 103 U.S. 358, 26 L.Ed. 395 (1881) (same). These cases, like Von Hoffman, are inapposite because there is no colorable argument that the provision of the Missouri Constitution limiting property tax assessments itself violates the Federal Constitution.
A third group of cases involving taxation and municipal bonds is more relevant. These cases hold that where there is no state or municipal taxation authority that the federal court may by mandamus command the officials to exercise, the court is itself without authority to order taxation. In some of these cases, the officials charged with administering the tax resigned their positions, and the Court held that no judicial remedy was available. See Heine v. Levee Commissioners, 19 Wall. 655, 22 L.Ed. 223 (1874) (where the levee commissioners *74 had resigned their office no one remained on whom the mandamus could operate). In Heine, the Court held that it had no equitable power to impose a tax in order to prevent the plaintiff’s right

from going without a remedy.
“The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, State or National.... It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee.” Id., at 660–661.
Other cases state more broadly that absent state authority for a tax levy, the exercise of which may be compelled by mandamus, the federal court is without power to impose any tax. See Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880) (where State repealed municipal charter, federal court had no authority to impose taxes, which may be collected only under authority from the legislature); id., at 515 (Field, J., concurring in judgment) (“The levying of taxes is not a judicial act. It has no elements of one”); United States v. County of Macon, 99 U.S. 582, 25 L.Ed. 331 (1879) (no authority to compel a levy higher than state law allowed outside situation where a subsequent limitation violated Contracts Clause); Rees v. City of Watertown, 19 Wall. 107, 22 L.Ed. 72 (1874) (holding mandamus unavailable where officials have resigned, and that tax limitation in effect when bond obligation was undertaken may not be exceeded by court order).
With all respect, it is this third group of cases that applies. The majority would limit these authorities to a narrow “exceptio[n]” *75 for cases where local officers resigned. Ante, at 1666, n. 20. This is not an accurate description. Rather, the cases show that where a limitation on the local authority’s taxing power is not a subsequent enactment itself in violation of the Contracts Clause, a federal court is without power to order a tax levy that goes beyond the authority granted by state law. The Court states that the KCMSD was “invested with authority to collect and disburse the property tax.” Ibid. Invested by whom? It is plain that the KCMSD had no such power under state law. That being so, the authority to levy a higher tax would have to come from the federal court. The very cases cited by the majority show that a federal court has no such authority.
At bottom, today’s discussion seems motivated by the fear that failure to endorse judicial taxation power might in some extreme circumstance leave a court unable to remedy a constitutional violation. As I discuss below, I do not think this possibility is in reality a significant one. More important, this possibility is nothing more or less than **1676 the necessary consequence of any limit on judicial power. If, however, judicial discretion is to provide the sole limit on judicial remedies, that discretion must counsel restraint. Ill-considered entry into the volatile field of taxation is a step that may place at risk the legitimacy that justifies judicial independence.
III
One of the most troubling aspects of the Court’s opinion is that discussion of the important constitutional issues of judicial authority to tax need never have been undertaken to decide this case. Even were I willing to accept the Court’s proposition that a federal court might in some extreme case authorize taxation, this case is not the one. The suggestion that failure to approve judicial taxation here would leave constitutional rights unvindicated rests on a presumption that the District Court’s remedy is the only possible cure for the constitutional violations it found. Neither our precedents *76 nor the record support this view. In fact, the taxation power is sought here on behalf of a remedial order unlike any before seen.
It cannot be contended that interdistrict comparability, which was the ultimate goal of the District Court’s orders, is itself a constitutional command. We have long since determined that “unequal expenditures between children who happen to reside in different districts” do not violate the Equal Protection Clause. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 54–55, 93 S.Ct. 1278, 1307–1308, 36 L.Ed.2d 16 (1973). The District Court in this case found, and the Court of Appeals affirmed, that there was no interdistrict constitutional violation that would support mandatory interdistrict relief. See Jenkins v. Missouri, 807 F.2d 657 (CA8 1986). Instead, the District Court’s conclusion that desegregation might be easier if more nonminority students could be attracted into the KCMSD was used as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD. The State’s complaint that this suit represents the attempt of a school district that could not obtain public support for increased spending to enlist the District Court to finance its educational policy cannot be dismissed out of hand. The plaintiffs and KCMSD might well be seen as parties that have “joined forces apparently for the purpose of extracting funds from the state treasury.” Milliken v. Bradley, 433 U.S., at 293, 97 S.Ct., at 2763 (Powell, J., concurring in judgment).

This Court has never approved a remedy of the type adopted by the District Court. There are strong arguments against the validity of such a plan. A remedy that uses the quality of education as a lure to attract nonminority students will place the District Court at the center of controversies over educational philosophy that by tradition are left to this Nation’s communities. Such a plan as a practical matter raises many of the concerns involved in interdistrict desegregation remedies. Cf. *77 Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 1974) (invalidating interdistrict remedial plan). District courts can and must take needed steps to eliminate racial discrimination and ensure the operation of unitary school systems. But it is discrimination, not the ineptitude of educators or the indifference of the public, that is the evil to be remedied. An initial finding of discrimination cannot be used as the basis for a wholesale shift of authority over day-to-day school operations from parents, teachers, and elected officials to an unaccountable district judge whose province is law, not education.
Perhaps it is good educational policy to provide a school district with the items included in the KCMSD capital improvement plan, for example: high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000–square–foot planetarium; greenhouses and vivariums; a 25–acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language **1677 translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500–square–foot dust-free diesel mechanics room; 1,875–square–foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities. But these items are a part of legitimate political debate over educational policy and spending priorities, not the Constitution’s command of racial equality. Indeed, it may be that a mere 12–acre petting farm, or other corresponding reductions in court-ordered spending, might satisfy constitutional requirements, while preserving scarce public funds for legislative allocation to other public needs, such as paving streets, feeding the poor, building prisons, or housing the homeless. Perhaps the KCMSD’s Classical Greek theme schools emphasizing forensics and self-government will provide exemplary training in participatory democracy. But if today’s dicta become law, such lessons will be of little use to students who grow up to become taxpayers in the KCMSD.
*78 I am required in light of our limited grant of certiorari to assume that the remedy chosen by the District Court was a permissible exercise of its remedial discretion. But it is misleading to suggest that a failure to fund this particular remedy would leave constitutional rights without a remedy. In fact, the District Court acknowledged in its very first remedial order that the development of a remedy in this case would involve “a choice among a wide range of possibilities.” App. to Pet. for Cert. 153a. Its observation was consistent with our cases concerning the scope of equitable remedies, which have recognized that “equity has been characterized by a practical flexibility in shaping its remedies.” Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955).
Any argument that the remedy chosen by the District Court was the only one possible is in fact unsupportable in light of our previous cases. We have approved desegregation orders using assignment changes and some ancillary education programs to ensure the operation of a unitary school system for the district’s children. See, e.g., Columbus Bd. of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979); Dayton Bd. of Education v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977). To suggest that a constitutional violation will go unremedied if a district does not, through capital improvements or other means, turn every school into a magnet school, and the entire district into a magnet district, is to suggest that the remedies approved in our past cases should have been disapproved as insufficient to deal with the violations. The truth of the matter is that the remedies in those cases were permissible choices among the many that might be adopted by a district court.
The prudence we have required in other areas touching on federal court intrusion in local government, see, e.g., Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990), is missing here. Even on the assumption that a federal court might order taxation in an extreme case, the unique nature of the taxing power would demand that this remedy be used as a last resort. In my view, a taxation order should not even be *79 considered, and this Court need never have addressed the question, unless there has been a finding that without the particular remedy at issue the constitutional violation will go unremedied. By this I do not mean that the remedy is, as we assume this one was, within the broad discretion of the district court. Rather, as a prerequisite to considering a taxation order, I would require a finding that any remedy less costly than the one at issue would so plainly leave the violation unremedied that its implementation would itself be an abuse of discretion. There is no showing in this record that, faced with the revenue shortfall, the District Court gave due consideration to the possibility that another remedy among the “wide range of possibilities” **1678 would have addressed the constitutional violations without giving rise to a funding crisis.
The District Court here did consider alternatives to the taxing measures it imposed, but only funding alternatives. See, e.g.,

App. to Pet. for Cert. 86a. There is no indication in the record that the District Court gave any consideration to the possibility that an alternative remedial plan, while less attractive from an educational policy viewpoint, might nonetheless suffice to cure the constitutional violation. Rather, it found only that the taxation orders were necessary to fund the particular remedy it had devised. This Court, with full justification, has given latitude to the district judges that must deal with persisting problems of desegregation. Even when faced with open defiance of the mandate of educational equality, however, no court has ever found necessary a remedy of the scope presented here. For this reason, no order of taxation has ever been approved. The Court fails to provide any explanation why this case presents the need to endorse by dictum so drastic a step.
The suggestion that our limited grant of certiorari requires us to decide this case blinkered as to the actual remedy underlying it, ante, at 1664, is ill founded. A limited grant of certiorari is not a means by which the Court can pose for itself *80 an abstract question. Our jurisdiction is limited to particular cases and controversies. U.S. Const., Art. III, § 2, cl. 1. The only question this Court has authority to address is whether a judicial tax was appropriate in this case. Moreover, the petition for certiorari in this case included the contention that the District Court should not have considered the power to tax before considering whether its choice of remedy was the only possible way to achieve desegregation as a part of its argument on Question 2, which the Court granted. Pet. for Cert. 27. Far from being an improper invitation to go outside the question presented, attention to the extraordinary remedy here is the Court’s duty. This would be a far more prudent course than recharacterizing the case in an attempt to reach premature decision on an important question. If the Court is to take upon itself the power to tax, respect for its own integrity demands that the power be exercised in support of true constitutional principle, not “suburban comparability” and “visual attractiveness.”

IV
This case is a stark illustration of the ever-present question whether ends justify means. Few ends are more important than enforcing the guarantee of equal educational opportunity for our Nation’s children. But rules of taxation that override state political strictures not themselves subject to any constitutional infirmity raise serious questions of federal authority, questions compounded by the odd posture of a case in which the Court assumes the validity of a novel conception of desegregation remedies we never before have approved. The historical record of voluntary compliance with the decree of Brown v. Board of Education is not a proud chapter in our constitutional history, and the judges of the District Courts and Courts of Appeals have been courageous and skillful in implementing its mandate. But courage and skill must be exercised with due regard for the proper and historic role of the courts.
*81 I do not acknowledge the troubling departures in today’s majority opinion as either necessary or appropriate to ensure full compliance with the Equal Protection Clause and its mandate to eliminate the cause and effects of racial discrimination in the schools. Indeed, while this case happens to arise in the compelling context of school desegregation, the principles involved are not limited to that context. There is no obvious limit to today’s discussion that would prevent judicial taxation in cases involving prisons, hospitals, or other public institutions, or indeed to pay a large damages award levied against a municipality under 42 U.S.C. § 1983. This assertion of judicial power in one of the most **1679 sensitive of policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies.
James Madison observed: “Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” The Federalist, No. 51, p. 352 (J. Cooke ed. 1961). In pursuing the demand of justice for racial equality, I fear that the Court today loses sight of other basic political liberties guaranteed by our constitutional system, liberties that can coexist with a proper exercise of judicial remedial powers adequate to correct constitutional violations.

All Citations 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31, 58 USLW 4480, 59 Ed. Law Rep. 298

Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions

for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287,

50 L.Ed. 499.

1

This litigation has come to us once before, on the collateral issue of attorney’s fees. Missouri v. Jenkins, 491 U.S.

Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions

for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287,

50 L.Ed. 499.

1

This litigation has come to us once before, on the collateral issue of attorney’s fees. Missouri v. Jenkins, 491 U.S.

274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).

2

The complaint originally alleged that the defendants had caused interdistrict segregation of the public schools.

After KCMSD was realigned as a defendant, a group of students ﬁled an amended complaint that also alleged

intradistrict segregation. The District Court certiﬁed a plaintiff class of present and future KCMSD students.

3

The District Court also found that none of the alleged discriminatory actions had resulted in lingering interdistrict

effects and so dismissed the suburban school districts and denied interdistrict relief.

4

KCMSD was ordered to improve the quality of the curriculum and library, reduce teaching load, and implement

tutoring, summer school, and child development programs. The cost of these remedies was to be borne equally

by the State and KCMSD. 639 F.Supp., at 28, 31–33. The District Court ordered an extensive capital

improvement program to rehabilitate the deteriorating physical plant of KCMSD, the cost of which was estimated

as at least $37 million, of which $27 million was to be contributed by the State. Id., at 39–41. The District Court

also required the defendants to encourage voluntary interdistrict transfer of students. No cost was placed on the

interdistrict transfer program, but the State was ordered to underwrite the program in full. Id., at 38–39. The

District Court further ordered the State to fund fully other portions of the desegregation program intended to

reduce class size and to improve student achievement. Id., at 30, 33.

5

KCMSD voters approved a levy of $3.75 per $100 in 1969, but efforts to raise the tax rate higher than that had

consistently failed to obtain the approval of two-thirds of the voters, and the District Court found it unlikely that a

proposal to raise taxes above $3.75 per $100 would receive the voters’ approval. Id., at 44.

6

“Magnet schools,” as generally understood, are public schools of voluntary enrollment designed to promote

integration by drawing students away from their neighborhoods and private schools through distinctive curricula

and high quality. See Price & Stern, Magnet Schools as a Strategy for Integration and School Reform, 5 Yale L. &

Policy Rev. 291 (1987).

7

The District Court authorized $12,972,727 for operation of the six magnet schools and $12,877,330 for further

capital improvements at those schools. Jenkins v. Missouri, 639 F.Supp., at 53–55.

8

The district court also imposed a 1.5% surcharge on the state income tax levied within the KCMSD. 672 F.Supp.

400, 412 (WD Mo.1987). The income tax surcharge was reversed by the Eighth Circuit. 855 F.2d 1295, 1315–

1316 (1988). Respondents did not cross-petition to challenge this aspect of the Court of Appeals’ judgment, so

the surcharge is not before us.

9

The Court of Appeals also relied on Circuit precedent suggesting that a District Court could order a property tax

increase after exploring every other ﬁscal alternative. Id., at 1310–1311; see Liddell v. Missouri, 731 F.2d 1294 (in

banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984); United States v. Missouri, 515 F.2d 1365

(in banc), cert. denied sub nom. Ferguson Reorganized School Dist. R–2 v. United States, 423 U.S. 951, 96 S.Ct.

374, 46 L.Ed.2d 288 (1975).

10

The Court of Appeals rejected the argument that such an injunction would violate the Tax Injunction Act, 28 U.S.C.

§ 1341, as the injunction would require the collection of additional taxes, not inhibit the collection of taxes. 855 F.

2d, at 1315. Accord, Appling County v. Municipal Electric Authority of Georgia, 621 F.2d 1301, 1304 (CA5), cert.

denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980).

11

Chief Judge Lay dissented from the resolution of the property tax issue. He argued that as the State and KCMSD

were jointly and severally liable for the cost of the desegregation remedy, the District Court should have allowed

any amount that KCMSD was unable to pay to fall on the State rather than require the tax increase. 855 F.2d, at

1318.

12

As we discuss infra, at 1660, 28 U.S.C. § 2101(c) requires that a petition for certiorari in a civil case be ﬁled within

90 days after the entry of the judgment sought to be reviewed. Section 2101(c) also permits a Justice of this

Court, “for good cause shown,” to grant an extension of time for the ﬁling of a petition for certiorari in a civil case

for a period not exceeding 60 days. In civil cases, applications for extension of time must be presented during the

original 90–day period. This Court’s Rule 30.2.

§ 1341, as the injunction would require the collection of additional taxes, not inhibit the collection of taxes. 855 F. 2d, at 1315. Accord, Appling County v. Municipal Electric Authority of Georgia, 621 F.2d 1301, 1304 (CA5), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980).

11

Chief Judge Lay dissented from the resolution of the property tax issue. He argued that as the State and KCMSD

were jointly and severally liable for the cost of the desegregation remedy, the District Court should have allowed

any amount that KCMSD was unable to pay to fall on the State rather than require the tax increase. 855 F.2d, at

1318.

12

As we discuss infra, at 1660, 28 U.S.C. § 2101(c) requires that a petition for certiorari in a civil case be ﬁled within

90 days after the entry of the judgment sought to be reviewed. Section 2101(c) also permits a Justice of this

Court, “for good cause shown,” to grant an extension of time for the ﬁling of a petition for certiorari in a civil case

for a period not exceeding 60 days. In civil cases, applications for extension of time must be presented during the

original 90–day period. This Court’s Rule 30.2.

13

This practice is now reﬂected in this Court’s Rule 13.4: “[I]f a petition for rehearing is timely ﬁled in the lower court

by any party in the case, the time for ﬁling the petition for a writ of certiorari ... runs from the date of the denial of

the petition for rehearing or the entry of a subsequent judgment. A suggestion made to a United States court of

appeals for a rehearing in banc ... is not a petition for rehearing within the meaning of this Rule.” The practice

does not extend to petitions for rehearing seeking only to correct a formal defect in the judgment or opinion of the

lower court. In such cases, of which Pink was one, “no ... alteration of the rights [is] asked, and the ﬁnality of the

court’s ﬁrst order [is] never suspended.” 317 U.S., at 266, 63 S.Ct., at 234. See also FTC v. Minneapolis–

Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952).

14

A petition for rehearing is designed to bring to the panel’s attention points of law or fact that it may have

overlooked. Fed.Rule App.Proc. 40(a). The panel is required to consider the contentions in the petition for

rehearing, if only to reject them. Rehearing in banc is a discretionary procedure employed only to address

questions of exceptional importance or to maintain uniformity among Circuit decisions. Fed.Rule App.Proc. 35(a).

As the Reporter for the Advisory Committee drafting the Rules has observed: “[A] party who desires a hearing or

rehearing in banc may ‘suggest’ the appropriateness of such a hearing.... The term ‘suggest’ was deliberately

chosen to make it clear that a party’s sole entitlement is to direct the attention of the court to the desirability of in

banc consideration. A suggestion is neither a petition nor a motion; consequently, it requires no disposition by the

court.” Ward, The Federal Rules of Appellate Procedure, 28 Federal B.J. 100, 110–111 (1968); see also Moody v.

Albemarle Paper Co., 417 U.S. 622, 625, 94 S.Ct. 2513, 2515, 41 L.Ed.2d 358 (1974) (per curiam ); Shenker v.

Baltimore & Ohio R. Co., 374 U.S. 1, 5, 83 S.Ct. 1667, 1670, 10 L.Ed.2d 709 (1963); Western Paciﬁc Railroad

Case, 345 U.S. 247, 258–259, 73 S.Ct. 656, 661–662, 97 L.Ed. 986 (1953). Consequently, Rule 35(c) speciﬁcally

provides that the ﬁling of a suggestion for rehearing in banc, unlike a petition for rehearing, “shall not affect the

ﬁnality of the judgment of the court of appeals or stay the issuance of the mandate.”

15

We note that the Federal Rules of Appellate Procedure and 28 U.S.C. § 46(c) (which provides the courts of

appeals with authority to sit in banc) speak of rehearing in banc, not en banc.

16

Although respondents do not agree that the Eighth Circuit so treated the State’s papers, they do not argue the

Court of Appeals lacked the power to treat the State’s “Petition for Rehearing En Banc” as a petition for panel

rehearing, even if it was intended subjectively and could be read objectively as only a suggestion for rehearing in

banc. Furthermore, parties frequently combine a petition for rehearing and a suggestion for rehearing in banc in

one document incorrectly labeled as a “petition for rehearing in banc,” see Advisory Committee’s Notes on

Fed.Rule App.Proc. 35, 28 U.S.C.App., p. 491, and the Eighth Circuit may have believed, because of the label on

the State’s papers, that the State intended its ﬁling to be read as containing both. Other Circuits routinely treat

documents so labeled as containing only suggestions for rehearing in banc. See, e.g., United States v. Buljubasic,

828 F.2d 426 (CA7 1987).

17

Rule 35(c) explicitly states that the pendency of a suggestion for rehearing in banc shall not “affect the ﬁnality of

the judgment of the court of appeals or stay the issuance of the mandate.” Rule 41(a) requires the mandate of the

Court of Appeals to issue “21 days after the entry of judgment unless the time is shortened or enlarged by order,”

but provides that a timely petition for panel rehearing “will stay the mandate until disposition of the petition unless

otherwise ordered by the court.” This case thus stands in contrast to United States v. Buljubasic, supra, where the

Court of Appeals allowed the mandate to issue even though the appellant had ﬁled a “Petition for Rehearing En

Banc.” In that case, the Court of Appeals treated the “Petition” as only a suggestion for rehearing in banc and

allowed the mandate to issue, as it was required to do under Rule 35(c).

18

The Court of Appeals “afﬁrm[ed] the actions that the court has taken to this point,” but detailed “the procedures

which the district court should use in the future.” 855 F.2d, at 1314. The Court of Appeals’ discussion of the

procedures to be used in the future was not dictum, for the court had before it the State’s appeal from the entire

funding order of the District Court. The Court of Appeals required the District Court to use the less obtrusive

procedures beginning with the ﬁscal year commencing after the remand but did not require the District Court to

reverse the tax increase that it had imposed for prior ﬁscal years. See id., at 1299 (“[W]e modify [the order’s]

future operation to more closely comport with limitations upon our judicial authority”); id., at 1318 (“We ... remand

for further modiﬁcations as provided in this opinion”). This interpretation is supported by an order of the District

Court issued on January 3, 1989. The District Court took no action to reverse its tax increase through ﬁscal year

1988–1989. The court also denied as premature a motion by KCMSD to approve a proposed property tax levy of

$4.23 for ﬁscal year 1989–1990. The court then directed KCMSD to “approve a property tax levy rate for 1989 at

a later date when ﬁnancial calculations for the 1989–1990 school year are clear and submit the proposed levy

17

Rule 35(c) explicitly states that the pendency of a suggestion for rehearing in banc shall not “affect the ﬁnality of

the judgment of the court of appeals or stay the issuance of the mandate.” Rule 41(a) requires the mandate of the

Court of Appeals to issue “21 days after the entry of judgment unless the time is shortened or enlarged by order,”

but provides that a timely petition for panel rehearing “will stay the mandate until disposition of the petition unless

otherwise ordered by the court.” This case thus stands in contrast to United States v. Buljubasic, supra, where the

Court of Appeals allowed the mandate to issue even though the appellant had ﬁled a “Petition for Rehearing En

Banc.” In that case, the Court of Appeals treated the “Petition” as only a suggestion for rehearing in banc and

allowed the mandate to issue, as it was required to do under Rule 35(c).

18

The Court of Appeals “afﬁrm[ed] the actions that the court has taken to this point,” but detailed “the procedures

which the district court should use in the future.” 855 F.2d, at 1314. The Court of Appeals’ discussion of the

procedures to be used in the future was not dictum, for the court had before it the State’s appeal from the entire

funding order of the District Court. The Court of Appeals required the District Court to use the less obtrusive

procedures beginning with the ﬁscal year commencing after the remand but did not require the District Court to

reverse the tax increase that it had imposed for prior ﬁscal years. See id., at 1299 (“[W]e modify [the order’s]

future operation to more closely comport with limitations upon our judicial authority”); id., at 1318 (“We ... remand

for further modiﬁcations as provided in this opinion”). This interpretation is supported by an order of the District

Court issued on January 3, 1989. The District Court took no action to reverse its tax increase through ﬁscal year

1988–1989. The court also denied as premature a motion by KCMSD to approve a proposed property tax levy of

$4.23 for ﬁscal year 1989–1990. The court then directed KCMSD to “approve a property tax levy rate for 1989 at

a later date when ﬁnancial calculations for the 1989–1990 school year are clear and submit the proposed levy

rate to the Court for approval at that time.” App. 511–512. This direction indicates that the District Court

understood that it was now obliged to allow KCMSD to set the tax levy itself. The District Court’s approval of the

levy was necessary because the Court of Appeals had required it to establish a maximum for the levy. See 855 F.

2d, at 1314.

19

See Tr. of Oral Arg. 14. This suggestion was also made by the judge dissenting below and by Clark Group. See

855 F.2d, at 1318 (Lay, C.J., concurring and dissenting); Brief for Icelean Clark et al. as Amici Curiae 25–26.

20

The old cases recognized two exceptions to this rule, neither of which is relevant here. First, it was held that

federal courts could not by writ of mandamus compel state ofﬁcers to release funds in the state treasury sufﬁcient

to satisfy state bond obligations. The Court viewed this attempt to employ the writ of mandamus as a ruse to

avoid the Eleventh Amendment’s bar against exercising federal jurisdiction over the State. See Louisiana v.

Jumel, 107 U.S. 711, 720–721, 2 S.Ct. 128, 135–136, 27 L.Ed. 448 (1883). This holding has no application to this

case, for the Eleventh Amendment does not bar federal courts from imposing on the States the costs of securing

prospective compliance with a desegregation order, Milliken v. Bradley, 433 U.S. 267, 290, 97 S.Ct. 2749, 2762,

53 L.Ed.2d 745 (1977), and does not afford local school boards like KCMSD immunity from suit, Mt. Healthy City

Bd. of Education v. Doyle, 429 U.S. 274, 280–281, 97 S.Ct. 568, 572–573, 50 L.Ed.2d 471 (1977). Second, it was

held that the writ of mandamus would not lie to compel the collection of taxes when there was no person against

whom the writ could operate. See Meriwether v. Garrett, 102 U.S. 472, 501, 26 L.Ed. 197 (1880); id., at 515

(Field, J., concurring in judgment) (“[W]hen the law is gone, and the ofﬁce of the collector abolished, there is

nothing upon which the courts can act”); cf. Wolff v. New Orleans, 103 U.S. 358, 368, 26 L.Ed. 395 (1881)

(distinguishing Meriwether, supra ). This exception also has no application to this case, where there are state and

local ofﬁcials invested with authority to collect and disburse the property tax and where, as matters now stand, the

District Court need only prevent those ofﬁcials from applying state law that would interfere with the willing levy of

property taxes by KCMSD.

21

United States v. County of Macon, 99 U.S. 582, 25 L.Ed. 331 (1879), held that mandamus would not lie to force a

local government to levy taxes in excess of the limits contained in a statute in effect at the time the City incurred

its bonded indebtedness, for the explicit limitation on the taxing power became part of the contract, the

bondholders had notice of the limitation and were deemed to have consented to it, and hence no contractual

remedy was unconstitutionally impaired by observing the statute. County of Macon has little relevance to the

present case, for KCMSD’s obligation to fund the desegregation remedy arises from its operation of a segregated

school system in violation of the Constitution, not from a contract between KCMSD and respondents.

 
 904 F.2d 415 United States Court of Appeals,
Eighth Circuit.
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, by his next friend, Maurice Dydell; Terrance Cason,
by his next friend, Antoria Cason; Jonathan Wiggins, by his next friend Rosemary Jacobs Love; Kirk Allen 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; Appellants, American Federation of Teachers, Local 691, Appellee,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education; Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education; Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellees, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees. Jennifer T. NAYLOR and Eric J. Naylor, by their next friend Reverend James NAYLOR; Dwayne Shores, by his mother and next friend Rose Shores; Adrian R. Dean, Tanisha M. Johnson, Andrea L. Johnson, and Gregory T. Johnson, by their mother and next friend Patience M. Johnson; Kevin Dion Innis, by his mother and next friend Linda Innis; Deidra Jovan Rayfield, by her mother and next friend Latricia Rayfield McArn; Nicole R. Griffith,
by her father and next friend Raymond B. Griffith, Sr.; Chrissean King, by his mother and next friend Patti King; Ronale M. Dunn, by his mother and next friend Janice Dunn; LaShonda M. Gross, by her father and next
friend Michael L. Gross; Jerry Steve Roggett, by his grandmother and next friend, Martha M. Anderson; and Bryant Tucker, by his mother and next friend Gladys Tucker, Appellants, Arthur A. Benson, II, Appellant, v.
LEE’S SUMMIT REORGANIZED SCHOOL DISTRICT R–7; Dr. Gail Williams, Acting Superintendent thereof; and Robert Jones, Robert Bruce, James Coleman, John Patterson, Margaret Piepergerdes, Sherry Sims,
Members of the Board of Education thereof; North Kansas City, Missouri School District; Dr. Gene Denisar, Superintendent thereof; and Freddie Nichols, Rick Moore, Sandra Clark, Mary Smith, Bill Trickey, Joe Jacobs, Wes McCullough, Members of the Board of Education thereof; School District of the City of Independence; Dr. Robert Henley, Superintendent thereof; and Sharon Williams, Helen French, Michael Barnett, Ronald Sinke,
Sharon Floyd, Phillip Parrino, Members of the Board of Education thereof; The State of Missouri; John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Robert Bartman, Commissioner of Education of the State of Missouri; and Roseann Bentley, Dan Blackwell, Pres. Terry A. Bond, Delmar A. Cobble, Grover Gamm, Jimmy Robertson, Robert L. Welling, Donald E. West, Members of
the Missouri State Board of Education, Appellees.
Nos. 89–1957, 89–2452. |
Submitted Feb. 21, 1990. |
Decided May 23, 1990. |
Order on Denial of Rehearing and Rehearing En Banc May 23, 1990.
Synopsis Black students from urban school district brought suit alleging that they had been denied admission into suburban school districts because of their race. The United States District Court for the Western District of Missouri, Joseph E. Stevens, Jr., J., granted summary judgment in favor of state and school districts, and students appealed. The Court of Appeals, Heaney, Senior Circuit Judge, held that: (1) fact question as to suburban school districts’ racial motivation precluded summary judgment, and (2) students’ attorney should not have been assessed Rule 11 sanctions.

Reversed and remanded with directions in part and vacated in part.
John R. Gibson, Circuit Judge, filed concurring opinion.
Bowman and Wollman, Circuit Judges, dissented from denial of petition for rehearing en banc and filed separate opinions.
Attorneys and Law Firms
*417 Arthur A. Benson, II, Kansas City, Mo., and Patricia A. Brannan, Washington, D.C., for appellants.
Michael J. Fields, Jefferson City, Mo., for appellees.
Bertrand M. Cooper, Seth Aronson, Scott J. Kaplan, O‘Melveny & Myers Los Angeles, Cal., for appellant Arthur A. Benson II.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion
HEANEY, Senior Circuit Judge.
We are concerned in these consolidated appeals with the following questions: (1) did the district court err in granting summary judgment to the North Kansas City School District, Lee’s Summit Reorganized School District R–7, and the Independence School District; (2) did the district court err in granting summary judgment to the State of Missouri; and (3) did the district court err in imposing sanctions of $83,761.59 on appellants’ attorney, Arthur A. Benson II. We answer all three questions in the affirmative and remand to the district court with directions that it promulgate a voluntary interdistrict transfer plan. This plan will require the State of Missouri to pay transportation and tuition costs for a limited number of black students residing in the Kansas City, Missouri School District who desire to attend suburban schools and who are accepted pursuant to the plan.
BACKGROUND
On June 14, 1985, Judge Russell Clark entered an order desegregating the Kansas City, Missouri School District (KCMSD). Jenkins v. Missouri, 639 F.Supp. 19 (W.D.Mo.1985), aff’d, 807 F.2d 657 (8th Cir.1986), cert. denied sub nom. Kansas City, Missouri School Dist. v. Missouri, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). An integral provision of the order required the State of Missouri to actively seek the cooperation of each suburban school district in the Kansas City area in a voluntary interdistrict transfer (VIT) program. The order required the State to pay for the transportation and tuition of black students who transfer from a school within the KCMSD in which their race is in the majority, with preference to students from schools with 90% or more black students, to a suburban school where space is available and in which their race is in the minority. The order required that the State continue to pay the KCMSD the full student foundation allotment for each student who transfers from that district to a suburban school. Id. at 39.
The order provided that a receiving district must: (1) agree not to reject individual applicants unless there is a history of serious discipline problems; (2) allow the transfer students to remain in attendance until such student graduates or returns to the student’s home district as long as that student satisfies all academic and other standards applicable to resident students; (3) treat transfer students in the same manner as it treats resident students; and (4) permit the KCMSD to recruit within its district applicants for interdistrict transfers. The order also required the State of Missouri to provide a full-time counselor for every 100 students who transfer from the KCMSD to a suburban school district. Id.
This order providing for VITs, a component of the district court’s comprehensive desegregation plan, was appealed to this Court. On December 5, 1986, we affirmed. Jenkins v. Missouri, 807 F.2d 657, 686 (8th Cir.1986), cert. denied sub nom. Kansas City, Missouri School Dist. v. Missouri, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). We held that while the

facts did not justify a compulsory interdistrict remedy, the interdistrict transfer plan ordered by the district court was constitutionally justified.1
*418 In footnote 30 of that opinion, we stated:
A voluntary interdistrict program is one that has great potential for improving the racial balance in the Kansas City area. The experience in St. Louis with such a plan seems to have been favorable. The district court is correct in its holding that such a program cannot be mandatorily imposed upon the record before the court. Whether a refusal of a district to participate in such a voluntary program may evidence discriminatory intent and thus be an independent basis for further relief and mandatory participation is an issue that we should not anticipate.
Id. at 683 n. 30. Judge Ross wrote separately to emphasize the importance of this admonition. He stated:
At the time of argument it was my understanding that a voluntary interdistrict program, patterned along the lines of the St. Louis program was a real possibility. It would now appear that some of the districts are not moving forward with this plan.
In my opinion the failure to organize and implement this program would be a very significant factor in determining discriminatory intent in the future litigation which is certain to result from the further processing of this case. The St. Louis program would be a useful model for the actions to be taken by all the Missouri districts which are parties to this action.
Id. at 687 (Ross, J., concurring).2
I. Claims of Naylor Plaintiffs In the summer of 1988, 134 black students applied for admission into three suburban school districts, North Kansas City, Lee’s Summit, and Independence. They were denied admission. Arthur Benson, acting as counsel for the students who had been rejected, commenced an action asserting that these students had been denied admission because of their race and asking the court to order the school districts to admit them, and to order the State to pay their transportation and tuition costs. The case was initially assigned to Judge D. Brook Bartlett of the Western District of Missouri. Benson made application to transfer the case to Judge Russell Clark, who retained responsibility for the Jenkins case. That motion was denied. After Judge Bartlett recused himself, the case was reassigned to Judge Joseph E. Stevens, Jr. Benson made a second motion for transfer, which was also denied. On January 11, 1989, Judge Stevens granted summary judgment in favor of the State and the three school districts.
Judge Stevens reasoned that the conditions which the suburban school districts set forth in denying the black students’ transfer applications were prospective only, and were suggested components of voluntary interdistrict transfer plans that had not yet been finalized or approved. He held that the black students were denied admission for the 1988–89 school year only because they failed to meet the suburban districts’ existing requirements for nonresident transfers. Consequently, Judge Stevens concluded that the black students’ *419 challenge to the proposed conditions for voluntary interdistrict transfers was not yet ripe.
[1] Judge Stevens finally concluded that because none of the black students had been admitted to the suburban districts for the 1988–89 school year, the State had not violated its obligation under the June 14, 1985 order by refusing to pay their tuition and transportation costs. Plaintiffs appeal from the district court’s entry of summary judgment.3 We reverse because a material factual dispute remains respecting the suburban school districts’ racial motivation in refusing to accept black transfer students from the KCMSD.
[2] While the record is replete with allegations, affidavits, counter-affidavits, and letters between the parties bearing on the question whether the suburban school districts’ refusal to accept the black students was racially motivated, one thing is clear from the record. Since June 14, 1985, not a single suburban school district has admitted a single black student from the KCMSD pursuant to a plan negotiated by the State and the suburban school districts. While there may be many reasons contributing to this failure, it seems clear to us that a very important one is the State’s refusal to pay transportation costs and tuition for students until a VIT plan has been negotiated with the suburban districts and approved by the district court. Meanwhile, no suburban district is willing to accept any transfer student until it is assured that it will receive State funding.

Although we cannot say with certainty that the State and the suburban school districts would never agree to a VIT plan on their own, after five years, we believe that further delay cannot be countenanced. The time has come for the district court itself to formulate and implement a plan. We therefore remand to the district court with directions to reassign the Naylor case to Judge Russell Clark, the judge currently responsible for the Jenkins litigation.
In No. 89–1957, Jenkins v. Missouri, the plaintiff class appeals from the district court’s determination that the question of funding voluntary interdistrict transfers was not ripe. We disagree with this decision and believe that it should be vacated, and the case remanded for further proceedings consistent with this opinion.
Resolution of the issues presented in Jenkins v. Missouri requires that the district court, after giving the parties an opportunity to suggest proposals, promptly develop a voluntary interdistrict transfer program to implement the remedy called for in its opinion of July 14, 1985, which we affirmed. Jenkins, 807 F.2d at 682–84, 712. The essentials of the plan should be generally consistent with those originally set forth in the opinion of June 14, 1985, as modified and affirmed by this Court. Additionally, the district court may find guidance in development of such a plan in the several decisions of this Court in Liddell v. Missouri, 731 F.2d 1294, 1302 (8th Cir.) (en banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984); see also Liddell v. Board of Education, 567 F.Supp. 1037, 1055 (E.D.Mo.1983); Liddell v. Board of Education, 873 F.2d 191, 193–94 (8th Cir.1989). It is to be hoped that the district court can develop a program so that school districts which desire to do so may participate in the 1990–91 school year.4
Any statements submitted to the district court by the plaintiffs, the Jenkins class, *420 the State, the suburban school districts, or others as to the contents of the voluntary interdistrict transfer program may not be used as evidence of racial animus in any future proceedings.
For reasons already given in this opinion, we are also remanding for further proceedings before Judge Clark, the Naylor case, in which we have held a genuine issue of material fact exists as to the racial motivation of appellees’ refusal to accept black transfer students from KCMSD. The district court should consider whether this litigation should be stayed pending the formulation of the voluntary interdistrict transfer program, and a decision by the suburban school districts as to whether to participate in it. This decision we leave to the district court’s discretion.
In Naylor, the summary judgment for the defendants is reversed, and the cause is remanded for further proceedings consistent with this opinion. In Jenkins, the decision of the district court denying the motion of the Jenkins class for implementation of the voluntary interdistrict plan is likewise reversed, and the cause remanded for further proceedings consistent with this opinion.
II. Sanctions Judge Stevens imposed sanctions of $83,761.59 on Benson, appellants’ attorney, after entering summary judgment in favor of all defendants. Judge Stevens sanctioned Benson because plaintiffs’ claim that the suburban school districts treated black transfer applicants differently from white transfer applicants was frivolous, because Benson withdrew a motion for a preliminary injunction after asserting that plaintiffs would be satisfied only with immediate relief, and because Benson filed a second motion to transfer the case to Judge Clark after his first such motion had been denied.
[3] We apply a three-pronged review to a district court’s award of Rule 11 sanctions. E.E.O.C. v. Milavetz & Assocs., P.A., 863 F.2d 613, 614 (8th Cir.1988). Factual findings supporting the sanctions are reversed only if clearly erroneous, the legal conclusion that Rule 11 has been violated is reviewed de novo, and the appropriateness of the sanction is reviewed for abuse of discretion. Id.
[4] Judge Stevens found frivolous that portion of plaintiffs’ complaint alleging that the suburban school districts treated black transfer applicants differently from their white counterparts.5 In our view, this allegation is not so frivolous as to warrant Rule 11 sanctions. Plaintiffs presented letters written by the school districts *421 to parents of the unsuccessful transfer applicants containing proposed conditions for transfers clearly tied to the ongoing Kansas City school desegregation litigation. These conditions could not be applied to white transfer applicants who were not parties to the desegregation litigation. Additionally, we do not believe plaintiffs’ complaint is as easily divided into two separate claims, one frivolous and one not, as Judge Stevens concluded it was.

The plaintiffs’ allegations arose out of a single set of facts, the suburban school districts’ denial of their transfer applications. Plaintiffs filed their suit in August 1988, shortly after their applications were denied, and sought relief to take effect for the 1988–89 school year. In view of the limited time in which Benson had to act, we believe that the complaint he filed on plaintiffs’ behalf was, to the best of his knowledge after a reasonable investigation, well grounded in fact and warranted by a good faith argument for the extension or modification of existing law. See Fed.R.Civ.P. 11; see also id. advisory committee note (what constitutes a reasonable inquiry may depend on the amount of time for investigation available to the signer).
[5] Judge Stevens also based the sanction award on Benson’s second motion to transfer the case to Judge Clark. In our view, the Naylor plaintiffs’ claims are inextricably involved with the Jenkins litigation and this case should have been assigned to Judge Clark in the first place. We believe Benson’s motions to transfer were not intended to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation, but were instead intended to place identical issues before a single decision maker. Accordingly, we vacate the order of the district court imposing sanctions on Benson.
CONCLUSION
In conclusion, we repeat what we have said before. The interests of the students of the KCMSD and the suburban districts will be well served if all the parties see fit to participate in the VIT plan to be promulgated by the district court.
JOHN R. GIBSON, Circuit Judge, concurring.
I concur in the court’s opinion and write separately only to explain more completely my reasons for concluding that the rulings of the district court should be reversed.
This case demonstrates the difficulty of determining complex cases involving school desegregation, and the attendant issues of discriminatory intent, by summary judgment. Text writers have discussed the inapplicability of summary judgment in such cases.6 This is just such a case involving the question whether there was discriminatory intent on the part of three suburban school districts, which necessarily involves an analysis of the actions, practices, decisions, and policies of school boards and of those delegated to assist the boards in carrying out their responsibilities. This is not a case where a minimal record exists, since the record before the district court consisted of some 1,983 pages. Recent Supreme *422 Court decisions amplifying the scope of summary judgment under Federal Rule of Civil Procedure 56 do not support the district court’s grant of a summary judgment in this case. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), makes it plain that drawing legitimate inferences from the facts is a function for the fact-finder and:
[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial. Id. at 255, 106 S.Ct. at 2513 (citations omitted). Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), also underscores the necessity for genuine issues of material fact to defeat summary judgment. As Matsushita demonstrates, the substantive law in an area can limit the range of permissible inferences that can be drawn from a set of facts. See id. at 587–88, 106 S.Ct. at 1356.
The Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), made the following statements that must guide this court in determining whether there is an issue for trial:
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action—whether it “bears more heavily on one race than another,” Washington v. Davis, [426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976) ] —may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. The evidentiary inquiry

is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion [v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) ] or Yick Wo [v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ], impact alone is not determinative, and the Court must look to other evidence.
The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes.... Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.
429 U.S. at 266–67, 97 S.Ct. at 564 (citations and footnotes omitted).
As the court’s opinion today points out, four years have passed, no plan has been adopted, and not one black student has been voluntarily transferred from KCMSD to a suburban school district.7 The record before the district court demonstrated that two of the districts, North Kansas City and Independence, had, over the last several years, declining enrollments which would indicate the availability of physical plant space. The record also reveals that in 1986 the Lee’s Summit Schools had a 1.4 percent black enrollment and the Independence Schools had a 1.8 percent black enrollment, while the North Kansas City Schools’ student body was: 1.7 percent black, 2.7 percent Hispanic, 1.2 percent Asian–Pacific, and .4 percent American Indian or Alaskan *423 Native, for a total minority enrollment of 6 percent. (Jt.App. at 1163–65).8
The Naylor Class argues with some force that the district court’s analysis unduly focused upon whether the suburban school districts’ “nonresident policies had the foreseeable consequence” of preventing the plaintiff class from attending the suburban school districts based on their race, and failed to properly evaluate the practices of the suburban school districts in light of all the principles underscored in Arlington Heights. I am also convinced that the district court erred in viewing the actions of the suburban school districts as merely preliminary proposals which could not serve as the basis for a finding of invidious discrimination. The entire situation before us simply demonstrates that the suburban school districts and the State have failed to make any headway toward the development of voluntary interdistrict transfer plans, and that each utilizes the inaction of the other as an excuse for its refusal to act.
I am satisfied that a review of both the policies and practices of the individual suburban school districts demonstrates that there is a genuine issue of material fact concerning the question of discriminatory intent.
When Naylor Class members requested admission to the Independence School District, the district responded by stating that the children would be admitted only if: (1) the State agreed to build and turn over to the district a new elementary school; (2) the district was reimbursed for its expenses in the prior Jenkins litigation and indemnified against the cost of future litigation arising out of the transfer program; and (3) the Jenkins Class attorneys agreed to not represent the children with respect to the district. These conditions were all set forth in a July 22, 1988, letter to Dr. Terry Stewart, Coordinator for Administrative Services, of the State Department of Elementary and Secondary Education. (Jt.App. at 1143–45). Moreover, while the Independence School District had an official non-resident student policy authorizing admission of four categories of students, (Jt.App. at 1083), the district referred to only one of those categories, namely non-resident students whose parents owned real estate in Independence, in a letter to Dr. Stewart dated February 10, 1987, (Jt.App. at 1118–19). The evidence also disclosed that in the five school years between 1984 and 1989, the district had admitted 115 special education students, of whom 108 were white, three were black, and four were members of other minority groups. The district also admitted eight white students from the Drumm Farm, a residential institution for children. (Jt.App. at 1387). Those students were not within any of the categories described in the district’s non-resident policy. The Naylor Class asks why the district strictly adhered to its non-resident policy to reject the black children while at the same time violating its policies in order to accept the predominantly white special education children. That question raises the issue of whether the Independence district has departed from normal procedures and created special conditions for the Naylor Class such as those referred to in Arlington Heights. I am satisfied that these are issues that preclude summary judgment.
Lee’s Summit had maintained a policy allowing students not residing in Lee’s Summit “to attend the district’s schools upon payment of tuition as established by the Board.” (Jt.App. at 1088). On July 27, 1988, the district wrote Dr. Stewart to inform the State of the district’s decision to not accept the plaintiffs, because the State would not pay their tuition. (Jt.App. at 1151). When counsel for the Jenkins Class informed the district that the plaintiffs would fulfill reasonable tuition requirements that the district would determine, (Jt.App. at 1154–55), the district answered *424 that the students were denied admission because they did not satisfy the district’s admission policy and practice, which focused on residency and property ownerships. (Jt.App. at 991). Later, an affidavit from the former board president stated that the district’s policy was to accept

non-resident students only to the extent required by law or to allow students to continue where the family had moved out of the district. Again, the district’s shifting rationale and its failure to follow its own expressed policy both implicate the principles in Arlington Heights and could create an inference of discriminatory motive.
The North Kansas City School District had a policy allowing the enrollment of non-residents in several specified categories.9 When the request was made for transfer by members of the Naylor Class, the district wrote to the State and to the parents of the black children stating that the children would be admitted only if: the district retained sole and final authority to accept or reject applicants; the students’ parents or guardians pledged to support the students’ educational activities and to be immediately available for consultation with school officials; certain school districts in the State of Kansas also agreed to accept KCMSD students; the State, KCMSD, and the plaintiff class provided full and unqualified indemnity to the district; KCMSD and the plaintiff class agreed to not pursue future litigation against the district; the district was fully reimbursed for all of the district’s fees, expenses, and costs from both the previous Jenkins litigation and its investigation of voluntary programs; and a set aside fund was placed under the district’s control for a five-year period to partially insure the required indemnities. (Jt.App. at 1130–38). I am convinced that these conditions, particularly the reimbursement of the earlier Jenkins litigation expenses, could raise an inference of discriminatory intent, because they are imposed against only one group of transfer students: the group of black students seeking admission.
As part of the response to the motion for summary judgment, the class filed affidavits from two Professors of Sociology, Dr. Robert L. Crane of Columbia University’s Teachers College, and Dr. Mary R. Jackman of the University of Michigan, both claiming to be knowledgeable in the area of racial attitudes. Both of them analyzed the letter from the North Kansas City School District and expressed opinions in detail that the letter demonstrated racially discriminatory intent. These opinions are further support for the conclusion that factual issues were presented.
The record also reveals that North Kansas City School District had accepted non-residents if it was able, and the student’s home district was unable, to meet the applicant’s educational needs and if tuition was paid by the home district. Those accepted were routinely white, coming from home districts that were nearly all white.
In view of our determination that we must remand the issues with respect to the three suburban school districts for further proceedings, and in view of our earlier orders requiring that the State take the lead in developing voluntary interdistrict transfer plans, I believe that we need say no more concerning the need for remand as to the State.
A few further words are in order concerning the refusal to transfer this case to Judge Clark, who has presided over the Jenkins litigation. Evidently when filed, the Naylor case was assigned to a different division under the procedures of the clerk’s office. Motions to transfer or consolidate were then denied. The order of the district court, however, in ruling on Naylor, made numerous references to Judge Clark’s participation in Jenkins. In that order, the court questioned whether the eleven criteria of the North Kansas City School District’s letter would qualify *425 as an appropriate voluntary transfer plan under Judge Clark’s order in Jenkins. Naylor v. Lee’s Summit Reorg. School Dist. R–7, 703 F.Supp. 803, 816 n. 17 (W.D.Mo.1989).10 In considering the liability of the State, the district court referred to Judge Clark’s order and held that it did not have jurisdiction to decide whether the State had a duty to fund a voluntary interdistrict plan, as these requirements stem from Judge Clark’s remedial order, and it was for him to make this determination. Id. at 818. The court also acknowledged Judge Clark’s role in formulating a voluntary plan as well as the right of the State to challenge its responsibility to finance tuition and transportation of students in such a plan, which it could not find to be evidence of discrimination against plaintiffs in the case before it. These references to the Jenkins litigation pending before Judge Clark and to the need for action by him in that case point to the interrelationship of the Naylor case with Jenkins and the desirability of determining all of the voluntary transfer issues in one court, that responsible for the Jenkins litigation.
Interestingly, the district court in Naylor pointed to the prematurity of the issues because the North Kansas City School District’s proposal was not yet a final plan. That proposal was predicated upon the State’s willingness to pay tuition for the transfer students. Lee’s Summit refused to accept transfer students because of the State’s refusal to pay tuition. The State argued successfully before Judge Clark that whether the State had to fund voluntary transfer plans was a moot question, because no plans existed. These circular rationalizations, with the suburban school districts refusing to adopt a plan because the State has not made funds available, and the State arguing that there is no voluntary plan for it to fund, make the remand to fashion a voluntary plan essential. It also underscores the desirability of a stay of further litigation in Naylor.

ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
The suggestion for rehearing en banc has been considered by the court and is denied by reason of the lack of majority of active judges voting to rehear the case en banc. Judges Bowman and Wollman dissent from the denial of the petition for rehearing en banc. The petition for rehearing is also denied. The panel opinion in that matter, which was consolidated with No. 89–1957, Kalima Jenkins, et al. v. The State of Missouri, et al., and filed April 2, 1990, is withdrawn. A substituted opinion in both matters is filed simultaneously with this order.
BOWMAN, Circuit Judge, dissenting.
I respectfully dissent from the denial of the suggestion for rehearing en banc of the panel opinion filed April 2, 1990. The panel now has filed a modified opinion, supra p. 417, and has withdrawn the April 2, 1990 opinion.1 Unfortunately, the modified opinion is as flawed as its predecessor.
Even though the panel takes pains in the modified opinion to make it appear the suburban school districts are being given a choice in the matter, the reality is that the Court effectively is decreeing a massive compulsory interdistrict transfer plan, one that the suburban districts will be forced to accept and implement on pain of being found guilty by this Court of racial discrimination if they do not. The question before us is whether a so-called voluntary transfer plan can be anything but compulsory when this Court already has signalled, in unmistakable terms, that the suburban school districts’ refusal to accept large numbers of transfer students from the Kansas City School District pursuant to “a voluntary *426 interdistrict program” will be “a very significant factor in determining discriminatory intent in the future litigation.” Jenkins v. Missouri, 807 F.2d 657, 687 (8th Cir.1986) (Ross, J., concurring) (Jenkins I), quoted with approval in the modified opinion of the panel majority, supra at 418 and Judge John R. Gibson’s concurring opinion, supra at p. 422 n. 7. The modified opinion of the panel majority, supra at 418 also quotes approvingly from footnote 30 of Jenkins I, which lauds the virtues of voluntary interdistrict transfer programs and concludes, ominously, that, “Whether a refusal of a district to participate in such a voluntary program may evidence discriminatory intent and thus be an independent basis for further relief and mandatory participation is an issue that we should not anticipate.” Jenkins, 807 F.2d at 683 n. 30.
The case thus takes on an Alice-in-Wonderland quality. On the one hand, the suburban districts, not having been found guilty of a constitutional violation (and therefore having been dismissed from the Jenkins case) cannot judicially be compelled to take part in an interdistrict remedy. On the other hand, our Court has made them an offer they can’t refuse: unless they start “voluntarily” admitting transfers from the Kansas City School District, they will be adjudged to be violating the Equal Protection Clause, and then will be subject to the full remedial powers of the federal courts. I think no more than this need be said to demonstrate the unmistakably coercive nature of the panel opinion.
An interdistrict transfer plan might or might not be a good thing. That is not the issue. The issue is the constitutional allocation of power, and whether our Court has been faithful to it. Clearly it has not. Instead, what we have here is a raw exercise of power in pursuit of what the Court perceives to be a noble purpose, namely, the dispersion of black students from the inner city into the mostly white suburban districts. This decision, if it is not overturned, will stand as a monument to the often tempting but always pernicious doctrine that arguably worthy ends justify illegitimate means. Moreover, it may have unintended practical consequences that will cause great harm to innocent school districts. When we tinker with local arrangements, we do so at great risk to the health of the body politic. Only when the Constitution commands it are we justified in intruding. Here, it cannot even be pretended that the Court’s coercive order has a constitutional basis.
I am also troubled by the implicit premise that appears to guide the panel opinion, that premise being that black children somehow will be better off if they are removed from classrooms where they enjoy majority status and are transported to more distant classrooms where they will comprise a distinct minority. If this be truth, it certainly is not of the self-evident variety. The premise seems especially hollow here in view of the vast sums of money that are being judicially compelled from unwilling taxpayers to make the Kansas City School District second to none in the opulence of its facilities and in the plenitude of its educational frills. In any event, the idea that a good education for black students requires their submersion in a sea of white students strikes me as being patronizing and demeaning to blacks. As far as I know, it is unsupported by any empirical evidence. I find it offensive.

My essential quarrel with the panel opinion, however, is that it goes further than any court has the right to go. The words of Justice Kennedy, dissenting in Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), are apposite here:
James Madison observed: “Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” The Federalist, No. 51, p. 352 (J. Cooke ed. 1961). In pursuing the demand of justice for racial equality, I fear that the Court today loses sight of other basic political liberties guaranteed by our constitutional system, liberties that can coexist with a proper exercise of judicial remedial powers adequate to correct constitutional violations.
*427 For the reasons I have briefly stated, I would grant the petition for rehearing en banc on all the issues raised by the petition. As I read the petition, it asks us to rehear, inter alia, the issue whether the District Court properly granted summary judgment in favor of the suburban districts on the discrete claim of discrimination that is the gravamen of the Naylor appellants’ complaint. I here express no opinion on the merits of that issue. I observe, however, that even if the Naylor appellants were ultimately to prevail on their discrimination claim, the sweeping relief that our Court has ordered would not be justified. When a state (or one or more of its subdivisions) is found to have violated the Constitution, the remedy should be precisely tailored to right the constitutional wrong, and should intrude no more than necessary upon state and local prerogatives. See Milliken v. Bradley, 433 U.S. 267, 280–81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). Here, our Court flouts that salutary teaching by effectively ordering (while pretending not to do so) a blunderbuss remedy that goes light years beyond anything that would be necessary to correct the constitutional violation alleged in the Naylor appellants’ complaint— and it does so despite the District Court’s grant of summary judgment for the suburban districts and despite the panel majority’s concession that “a material factual dispute remains respecting the suburban school districts’ racial motivation in refusing to accept black transfer students from the KCMSD.” Naylor v. Lee’s Summit Reorganized School Dist., No. 89–2452, Op. at 8 (8th Cir. May 23, 1990).
Our Court has acted with the best of intentions. Good intentions, however, are not an adequate substitute for constitutional authority, which here is sorely lacking. Nor do good intentions excuse judicial abuse of the Court’s de facto ability to bully litigants into submission not to the law but to the Court’s will. The illegitimacy of what the panel has done is so painfully obvious that I find it difficult to believe a majority of the judges of this Court would not feel duty-bound to grant the petition for rehearing en banc.

WOLLMAN, Judge, dissenting. I agree with much of what is said in Judge Bowman’s dissenting statement, and I too would grant the petition for rehearing in banc on all of the issues raised by the petition.

All Citations 904 F.2d 415, 60 Ed. Law Rep. 1090

Footnotes

1

This Court’s opinion modiﬁed the district court’s requirement that the State pay the KCMSD the full student

foundation allotment for each student transferring out of the district and authorized the formation of a citizens

committee to monitor the interdistrict transfer plan. 807 F.2d at 684.

2

Judges Lay, Heaney, and McMillian would have ordered compulsory interdistrict relief. Id. at 712 (Lay, C.J.,

dissenting). Judge Arnold dissented from that part of the Court’s order which held that the suburban school

districts could not be required to participate in an interdistrict remedy for interdistrict school segregation caused by

the State’s unconstitutional housing segregation. Id. at 687 (Arnold, J., concurring in part and dissenting in part).

In late 1987, the Jenkins plaintiffs charged that the State of Missouri was not seriously committed to seeking

the cooperation of the suburban school districts in a voluntary interdistrict program and requested the court to

direct the state defendants to engage in further efforts and activities towards achieving such a program. Jenkins

v. Missouri, No. 77–0420–CV–W–4, slip op. at 14 (W.D.Mo. Jan. 7, 1988). The court acknowledged that

progress in achieving a voluntary interdistrict program had been slow, but denied plaintiffs’ motion, stating that

the newly-created subcommittee of the Desegregation Monitoring Committee was fully committed to assisting

the state and the other parties in developing a program and that the subcommittee was the most effective

means of achieving a successful interdistrict transfer program. Id.

3

We have consolidated this appeal with that in Jenkins v. Missouri, No. 89–1957. The Jenkins class appeals Judge

Footnotes

1

This Court’s opinion modiﬁed the district court’s requirement that the State pay the KCMSD the full student

foundation allotment for each student transferring out of the district and authorized the formation of a citizens

committee to monitor the interdistrict transfer plan. 807 F.2d at 684.

2

Judges Lay, Heaney, and McMillian would have ordered compulsory interdistrict relief. Id. at 712 (Lay, C.J.,

dissenting). Judge Arnold dissented from that part of the Court’s order which held that the suburban school

districts could not be required to participate in an interdistrict remedy for interdistrict school segregation caused by

the State’s unconstitutional housing segregation. Id. at 687 (Arnold, J., concurring in part and dissenting in part).

In late 1987, the Jenkins plaintiffs charged that the State of Missouri was not seriously committed to seeking

the cooperation of the suburban school districts in a voluntary interdistrict program and requested the court to

direct the state defendants to engage in further efforts and activities towards achieving such a program. Jenkins

v. Missouri, No. 77–0420–CV–W–4, slip op. at 14 (W.D.Mo. Jan. 7, 1988). The court acknowledged that

progress in achieving a voluntary interdistrict program had been slow, but denied plaintiffs’ motion, stating that

the newly-created subcommittee of the Desegregation Monitoring Committee was fully committed to assisting

the state and the other parties in developing a program and that the subcommittee was the most effective

means of achieving a successful interdistrict transfer program. Id.

3

We have consolidated this appeal with that in Jenkins v. Missouri, No. 89–1957. The Jenkins class appeals Judge

Clark’s denial of its motion to compel the State of Missouri to fund VIT expenses for the 1988–89 school year.

Judge Clark denied the motion as moot because the suburban school districts admitted no KCMSD transfer

students for the 1988–89 school year.

4

The State of Missouri resisted the Naylor and Jenkins plaintiffs’ requests that the district court order the State to

fund voluntary interdistrict transfers because no VIT plan had yet been approved by the district court. The State

also contended that it had no obligation to fund the plaintiffs’ proposed transfers because Judge Clark’s original

order directed the State, rather than the plaintiffs, to implement a VIT plan. Judge Clark rejected the latter

contention, noting that:

there is nothing in the prior orders preventing the other parties from seeking the cooperation of other school

districts in a VIT program. This is evidenced by the Court’s statement that ‘the newly created voluntary

interdistrict transfer subcommittee of the Desegregation Monitoring Committee is fully committed to assisting

the State and the other parties in developing a voluntary interdistrict transfer program.’

Jenkins, No. 77–0420–CV–W–4 (W.D.Mo. Nov. 29, 1988), Order at 5 (quoting Jan. 7, 1988 Order at 14)

(emphasis added to original).

Judge Clark’s opinion of June 14, 1985 also admonished:

[T]he State of Missouri must demonstrate that they are seriously committed to seeking the cooperation of

each suburban school district in the Kansas City, Missouri metropolitan area. If the State does not

demonstrate its commitment, then this Court will seek other methods of accomplishing this task at the State’s

expense.

Jenkins, 639 F.Supp. at 51.

Additionally, Judge Clark has several times underscored the need for the district court to maintain control of and

to ﬁnally approve any VIT plan that is to be implemented. E.g., Jenkins, No. 77–0420–CV–W–4 (W.D.Mo. Feb.

16, 1989), Order at 3; Jenkins, No. 77–0420–CV–W–4 (W.D.Mo. May 5, 1989), Order at 2.

Despite Judge Clark’s initial instruction to the State to propose a VIT plan in 1985, nearly ﬁve years have

passed without the State demonstrating its willingness to propose such a plan. In view of the State’s apparent

reluctance to proceed, and because of the district court’s repeated intention to retain ﬁnal approval over any

VIT proposal, we believe that the time has come for the district court itself to develop a VIT plan in order to

implement the remedy called for in its June 14, 1985 opinion and approved by this Court.

5

Judge Stevens originally found the entire claim to be sanctionable. On reconsideration, however, the court

concluded that plaintiffs’ allegation of discriminatory intent was prompted by this Court’s decision in Jenkins v.

Missouri, 807 F.2d at 683 n. 30. Accordingly, Judge Stevens ordered Benson to pay half the defendants’

attorney’s fees.

6

Professors Wright, Miller, and Kane have stated that:

Cases premised on alleged violations of the constitutional or civil rights of plaintiffs frequently are unsuitable

for summary judgment. As is true with cases involving important public issues, courts may refuse to grant

summary judgment in these actions because it is felt that a fuller record is necessary in order to be able to

decide properly the issues involved. Further, the very nature of the claims involved often presents factual

issues that require summary judgment to be denied.

In many constitutional and civil rights cases, a necessary element of the claim for relief presents an inquiry

into the state of mind of one or more of the parties.... [C]laims requiring a determination regarding intentions

or motives are particularly unsuitable for summary adjudication....

Finally, in actions charging various forms of discrimination, in violation of the constitution or some statute,

material fact issues may exist concerning whether the defendant intended or knowingly discriminated,

thereby precluding summary judgment. Thus, for example, in cases alleging sexual or racial discrimination in

employment or housing, an examination of motive and intent usually is involved, making the granting of

summary judgment especially questionable.

10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2732.2, at 340–51 (2d ed. 1983)

reluctance to proceed, and because of the district court’s repeated intention to retain ﬁnal approval over any VIT proposal, we believe that the time has come for the district court itself to develop a VIT plan in order to implement the remedy called for in its June 14, 1985 opinion and approved by this Court.

5

Judge Stevens originally found the entire claim to be sanctionable. On reconsideration, however, the court

concluded that plaintiffs’ allegation of discriminatory intent was prompted by this Court’s decision in Jenkins v.

Missouri, 807 F.2d at 683 n. 30. Accordingly, Judge Stevens ordered Benson to pay half the defendants’

attorney’s fees.

6

Professors Wright, Miller, and Kane have stated that:

Cases premised on alleged violations of the constitutional or civil rights of plaintiffs frequently are unsuitable

for summary judgment. As is true with cases involving important public issues, courts may refuse to grant

summary judgment in these actions because it is felt that a fuller record is necessary in order to be able to

decide properly the issues involved. Further, the very nature of the claims involved often presents factual

issues that require summary judgment to be denied.

In many constitutional and civil rights cases, a necessary element of the claim for relief presents an inquiry

into the state of mind of one or more of the parties.... [C]laims requiring a determination regarding intentions

or motives are particularly unsuitable for summary adjudication....

Finally, in actions charging various forms of discrimination, in violation of the constitution or some statute,

material fact issues may exist concerning whether the defendant intended or knowingly discriminated,

thereby precluding summary judgment. Thus, for example, in cases alleging sexual or racial discrimination in

employment or housing, an examination of motive and intent usually is involved, making the granting of

summary judgment especially questionable.

10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2732.2, at 340–51 (2d ed. 1983)

(footnotes omitted).

7

Judge Ross’ concurring opinion in Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) [hereinafter Jenkins I ],

expressed the opinion that failure to organize and implement a voluntary interdistrict program would be a

signiﬁcant factor in determining discriminatory intent in future litigation. Id. at 687 (Ross, J., concurring).

8

While not in the record before the district court, publicly available enrollment ﬁgures demonstrate that black

enrollment has continued to increase in four non-party suburban school districts, Center, Grandview, Hickman

Mills, and Raytown, the districts that we recognized had made steady increases in black enrollment in Jenkins I,

807 F.2d at 664 n. 9. Insofar as this may be material in this case, the district court on remand may make

appropriate inquiry and ﬁndings.

9

These included children enrolled in special education programs, children whose families had moved from the

North Kansas City School District, orphaned children, children whose legal residence was found to exist in the

district by a court, foreign and domestic exchange students, and children of a non-resident person paying a

school tax in the district. (Jt.App. at 1115–17).

10

The district court stated that several of the conditions in the North Kansas City School District’s proposal were

perhaps in violation of the equal protection clause, and questioned whether they would pass constitutional muster

standing on their own, but further concluded that the issue was not before it. Id. at 816.

1

The modiﬁed panel opinion 904 F.2d 415, is being ﬁled simultaneously with this order denying rehearing en banc.

 
 1990 WL 515176 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
June 26, 1990.
ORDER
RUSSELL G. CLARK, District Judge.
*1 Before the Court is plaintiffs’ motion for Year VI program and budget modifications and KCMSD’s motion for approval of desegregation plan for 1990–91. Subsequently the parties filed a joint stipulation regarding certain issues in the KCMSD’s and plaintiffs’ motions. On April 23, 1990, the Court entered an order in accordance with the stipulations. Subsequently the State filed a memorandum on the remaining Year VI budget issues and the KCMSD and plaintiffs filed a joint response to the State’s memorandum. The State filed a reply memorandum and the KCMSD and plaintiffs filed a joint response. Plaintiffs’ motion for Year VI program and budget modifications and the KCMSD’s motion for approval of desegregation plan for 1990–91 will be granted as set forth below.
AAA
In its order of July 25, 1988, this Court approved a 1990–91 AAA budget of $6,574,673, with the KCMSD solely responsible for $1,963,535. Jenkins v. State of Missouri, Order of July 25, 1988, at 21–24 (W.D.Mo.1988). The KCMSD seeks a slightly reduced 1990–91 AAA budget of $6,569,389. In addition, the KCMSD proposes to use one of the Court-approved counselors to provide counseling services at Delano and the Teenage–Parent Center, two of the KCMSD’s special schools. The State argues that the time has come for the KCMSD to solely bear the costs of maintaining AAA status. The KCMSD counters that the achievement and retention of AAA status is a proper desegregation expense. In addition, the KCMSD states that its operating budget is not sufficient to meet the requirements of AAA status. The retention of AAA status is a proper desegregation expense. Liddell v. Board of Education of City of St. Louis, 758 F.2d 290, 294 (8th Cir.1985); Liddell v. State of Missouri, 731 F.2d 1294, 1318 (8th Cir.), cert. denied, 469 U.S. 816 (1984); Jenkins, Order of July 25, 1988, at 24; id., Order of July 6, 1987, at 10. Therefore, the Court will approve a AAA budget of $6,569,389 in 1990–91 with the KCMSD solely responsible for $3,111,035. In addition, the Court will approve the use of one counselor to provide counseling services at two of the KCMSD’s special schools.
Reduction in Class Size
The Court previously approved a reduction in class size budget of $8,787,191 for 1990–91 stating that “[i]f student enrollments justify additional funding for ... 1990–91, KCMSD may move the Court for such funding.” Id., Order of July 25, 1988, at 8. The KCMSD has determined that it can meet the Court-ordered class sizes with fewer teachers than the Court approved in the July 25, 1988, order, resulting in a 1990–91 budget request of $4,683,986. The KCMSD seeks to eliminate 31 approved positions at the elementary level, 38.5 positions at the middle school level and 72.5 positions at the high school

level. The State does not oppose the KCMSD’s budget request. Therefore, the Court will approve a reduction in class size budget of $4,683,986 for 1990–91 with the KCMSD solely responsible for $3,512,990 pursuant to the Court’s order of July 5, 1989. Id., Order of July 5, 1989, at 6–8.
Full–Day Kindergarten
The Court previously approved a full-day kindergarten budget of $1,773,185 for 1990–91 stating that “[i]f student enrollments justify increased or decreased funding for ... 1990–91, the Court will make an appropriate modification.” Id., Order of July 25, 1988, at 14. The KCMSD has not requested a modification of the previously approved budget for 1990–91. The State does not oppose the full-day kindergarten budget request. Therefore, the Court will approve a full-day kindergarten budget of $1,773,185 for 1990–91 with the KCMSD responsible for $443,296 of that budget.
1986–87 Magnet Schools
Previously the Court refused to approve the KCMSD’s 1990–91 budget for the 1986–87 magnets because the budget did not properly delineate between base operating costs and incremental magnet costs. Id., Order of July 5, 1989, at 3–4; id., Order of July 25, 1988, at 20–21. The KCMSD now seeks approval of a 1990–91 1986–87 magnet budget of $15,694,833 with $10,385,602 of this budget deemed a desegregation expense allocated 100% to the KCMSD.
*2 In 1988–89 and 1989–90 the Court approved total 1986–87 magnet budgets as a desegregation expense and subsequently allowed the State a credit in the amount of base costs necessary to operate a traditional program at each school against the amount of their total desegregation obligation for 1988–89 and 1990–91, respectively, because base costs for the 1986–87 magnets are not a proper desegregation expense and the KCMSD should be solely liable for such costs out of its operating budget. Id., Order of October 18, 1989, at 2–3; id., Order of November 2, 1989, at 4–5; id., Order of January 23, 1990, at 1–6. The State argues that the Court should approve only the 1986–87 magnet school incremental costs as a desegregation expense in 1990–91 with the base costs of these schools included in the KCMSD’s 1990–91 operating budget. However, on February 1, 1990, this Court entered an order which suspended and stayed the Court’s orders of October 18, 1989, November 2, 1989, and January 23, 1990. Therefore, the Court finds that the proposed budget of $15,694,833 for 1990–91 is reasonable and will approve such budget as a desegregation expense with $10,385,602 allocated 100% to the KCMSD. If the February 1, 1990, stay is subsequently lifted, the State shall be allowed a credit in the amount of the base costs necessary to operate a traditional program at each school against the amount of their total desegregation obligation for 1990–91.
Base Budgets
The KCMSD requests a 1990–91 budget for base budgets for New Paseo Middle School, Lincoln Middle School, New West Elementary, New Gladstone Elementary, Middle School I, Middle School II and Elementary III. In 1990–91 the KCMSD will also be opening four additional elementary magnet schools but is not requesting base budget funding for these schools because it is closing four traditional elementary schools in 1990–91. The State argues that the time has come to no longer fund the base budget magnets as a separate desegregation expense, but instead treat them like the schools under the LRMP. The Court has previously approved base budget components as a desegregation expense. Id., Order of July 5, 1989, at 4; id., Order of July 25, 1988, at 18–19. The base budget component is a proper desegregation expense because the district would not have been required to open and operate these new magnets but for the Court-ordered LRMP. The State offers no basis to the Court to revise the prior rulings regarding the base budget component. The State appears to be attempting to relitigate the issue of costs avoided elsewhere, which was addressed by this Court in its order of May 24, 1989. Therefore, the Court will approve the base budget component of $15,358,428 as a desegregation expense with the KCMSD’s obligation totaling $3,839,607. However, the State will be allowed a credit for the amount of costs avoided elsewhere as addressed by the Court in its order of May 24, 1989. The Court directs the KCMSD to submit the amount of costs avoided elsewhere for 1990–91 as soon as they are available.

Security
*3 The maintenance plan approved by the Court as part of its September 15, 1987, order provides $170,022 for 1990–91 and 1991–92 to upgrade the KCMSD security program. The KCMSD now proposes to increase the security budget to $224,752 in 1990–91 and $428,339 in 1991–92 to continue the reorganization of the KCMSD security department as thefts become more costly as a result of the influx of educational equipment from the desegregation programs. The KCMSD argues that the proposal will provide a critical link in the recruiting effort and enable the KCMSD to protect more effectively the equipment that has been purchased in furtherance of the desegregation plan. The KCMSD’s original proposal requested desegregation funds for ten additional site-based security guards, one new manager of site-based security officers, one new investigator and five additional patrol officer dispatchers. The KCMSD also proposed to extend the contracts of all sixteen site-based security guards from ten months to twelve months. The DMC took no exception to the ten additional site-based security guards and one new investigator, but did take exception to one new manager of site-based security officers and five additional patrol officer dispatchers. DMC Minutes of March 19, 1990, at 10. The DMC determined that the non-site-based security initiatives proposed by the KCMSD were “too staff intensive,” and urged the KCMSD “to develop a more cost-effective and efficient proposal which addresses internal security as well as external.” Id. In response, the KCMSD eliminated the site-based manager position from the proposal, but retained the dispatchers “because of their importance to the District’s effort to combat property losses.” KCMSD’s Motion for Approval of Desegregation Plan for 1990–91 at 27. The State responds that security is a maintenance function which is not a proper desegregation expense. The KCMSD counters that proper security makes the KCMSD schools more desegregatively attractive and that much of the property the KCMSD is trying to protect is needed to carry out the desegregation plan.
The Court recognizes that security has become an important issue in the KCMSD. See Declaration of William M. Threatt, Jr., at ¶ 7. Proper security is vital to the desegregative attractiveness of the KCMSD. See id. at ¶ 8. During the 1988–89 school year alone there were 926 incidents reported to the KCMSD security department resulting in losses totaling $221,958. KCMSD’s 1990–91 Year VI Desegregation Plan at 136. A large portion of the KCMSD’s losses are attributable to electronic equipment purchased to implement the desegregation plan. Declaration of William M. Threatt, Jr., at ¶ 6. The Court has previously stated: “The Court recognizes that the security needs of the KCMSD ... have changed dramatically as a result of the desegregation plan. It would be illogical for the Court to order implementation of a desegregation plan calling for new and renovated facilities containing new equipment, supplies and furniture without adequate security to protect such investments.” Jenkins, Order of March 30, 1989, at 2–3. In the March 30, 1989, order the Court granted the KCMSD’s request to recognize summer security expenses as desegregation expenses. Therefore, the Court finds that the KCMSD’s request for security funds is a proper desegregation expense. However, the Court will not approve the KCMSD’s request for five additional patrol officer dispatchers to which the DMC took exception. The KCMSD shall file a proposed budget for security for 1990–91 and 1991–92 deleting the five additional patrol officer dispatchers on or before July 13, 1990.
Desegregation Monitoring Committee
*4 As this Court has stated many times before, the DMC is an arm of the Court and has shown itself to be an effective and impartial group committed to achieving the goals outlined in this Court’s desegregation plan. See, e.g., id., Order of July 5, 1989, at 26; id., Order of July 25, 1988, at 5. The Court cannot over emphasize the importance of the DMC to the Court and the desegregation plan. The Court will approve a DMC budget of $416,655 for 1990–91. The Court will approve a per diem budget component totaling $116,300, which consists of an increase in compensable hours to 225 hours for the general chairperson, 188 hours for committee chairpersons and 163 hours for committee members. Such an increase is warranted, as the DMC members spend many hours on DMC matters for which they are not compensated. See Attachment A. A research budget of $54,200 and an operating budget of $35,000 will be approved. The Court will approve a staff compensation budget of $211,155, which includes a six percent salary increase for the executive secretary and administrative assistant, addition of benefits for the administrative assistant and the addition of two evaluators to the staff to assist with the day-to-day program monitoring and general assessment of the implementation of the plan. The Court will also approve a carryover of the balances of the fiscal year 1990 accounts to the 1991 fiscal year, which will result in a credit to the State and the KCMSD against their respective share of the funding.

Conclusion The budgets approved previously in this order shall be allocated 25% to the KCMSD and 75% to the State, unless otherwise provided, with joint and several liability. Accordingly, it is hereby ORDERED that plaintiffs’ motion for Year VI program and budget modifications is granted as set forth in this order; and it is further ORDERED that the KCMSD’s motion for approval of desegregation plan for 1990–91 is granted as set forth in this order; and it is further ORDERED that the DMC’s budget request is granted as set forth in this order; and it is further ORDERED that the KCMSD shall file a proposed security component budget for 1990–91 and 1991–92 on or before July 13, 1990; and it is further ORDERED that the KCMSD shall submit the amount of costs avoided elsewhere for 1990–91 as soon as they are available.
PER DIEM REPORT—AS OF 4/30/90

HOURS

HOURS

PROJECTED

MEMB COMPENSATE UNCOMPENSATED

ER

D

TOTAL

HRS. REMAINING

YR. END HOURS

(as of 4/30/90)

(1st 10 mos.)

(where compensation

is available)

Eubanks Oglesby
Perez

180 47 66.75

72.75 –0– –0–

252.75 47
66.75

–0– 103 63.25

318.9 56.4 80.1

Eubanks

180

Oglesby

47

Perez

66.75

Stanton

68.75

Kraft

150

Jordan

99.25

Bixby

114.75

Sancho

150

Neal

95

Cozad

49.25

DiCapo

119.75

James

130

Holland

58

TOTALS

1,328.50

72.75 –0– –0– –0– 12.50 –0– –0– 28.25 –0– –0– –0– 9.25 –0– 122.75

252.75 47
66.75 68.75 162.50 99.25 114.75 178.25
95 49.25 119.75 139.25
58 1,451.25

–0– 103 63.25 61.25 –0– 30.75 15.25 –0– 35 80.75 30.25 –0– 73 491.50

318.9 56.4 80.1 80.1 195 119.15 144.25 226.80 114 59.1 153.3 167.1 72 1,799.2

All Citations Not Reported in F.Supp., 1990 WL 515176

 
 1990 WL 362044 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
Oct. 29, 1990.
Attorneys and Law Firms
Arthur A. Benson, II, Carolyn Bayer, Benson & McKay, Kansas City, Mo., for plaintiffs.
Shirley W. Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., Allen R. Snyder, Pat Brannan, Hogan & Hartson, Washington, D.C., for defendant Kansas City, Missouri School District.
Michael Fields, Bart Matanic, Atty. General’s Office, Jefferson, Mo., for defendant State of Missouri.
Doyle R. Pryor, Jolley, Wash, Hager & Gordon, Kansas City, Mo., for Intervenor American Federation of Teachers.
ORDER
RUSSELL G. CLARK, District Judge.
*1 Before the Court is Property Taxpayers’ “taxpayers’ ” motion for leave to intervene for the limited purpose of seeking a refund and motion to recover a full refund of the Court-ordered property tax. The KCMSD and plaintiffs filed a joint response in which they did not oppose the taxpayers’ motion for leave to intervene. The KCMSD and plaintiffs filed a motion in opposition to the taxpayers’ motion to recover a full refund. The State responded to the taxpayers’ motion to recover a full refund. The KCMSD and plaintiffs filed a reply to the State’s response. The taxpayers filed a reply and a second reply memorandum in support of their motion to intervene and to recover a full refund. The KCMSD and plaintiffs filed a surreply to the taxpayers’ motion to recover a full refund.
The Court shall not order a hearing on this matter. The Court shall allow the taxpayers to intervene for the limited purpose of seeking to recover a full refund of the Court-ordered property tax. The Court shall order all 1987 taxes paid under protest to be refunded. The Court shall not order the 1988 or 1989 taxes to be refunded.
Also before the Court is the State of Missouri’s motion for an order directing that property tax funds currently held in escrow be applied to outstanding KCMSD obligations to the State. The KCMSD and plaintiffs filed a joint response to the State’s motion. The State filed a reply to the joint response of the KCMSD and plaintiffs.
Intervention Property taxpayers move this Court for leave to intervene pursuant to Fed.R.Civ.P. 24 in the above-captioned case for the limited purpose of asserting their rights and interests in the refund of the property tax levy imposed on them by this Court. Applicants are KCMSD property taxpayers and as a direct result of the Court’s order of September 15, 1987 imposing a $1.95 property tax levy increase, applicants submit that they have paid an unlawful judicial property tax. Some applicants have paid these taxes under protest pursuant to Mo.Rev.Stat. § 139.031.

Applicants state that they have an immediate interest relating to the property which is the subject of the Supreme Court’s April 18, 1990 decision and the Eighth Circuit’s June 6, 1990 mandate to this Court. Applicants claim that they are so situated that the disposition of the court-ordered property tax refund issues will impair and impede their ability to adequately represent and protect their interests. Applicants state that neither the Jenkins class counsel, nor the KCMSD, nor the State of Missouri can adequately represent or protect the interests of the applicants. Applicants allege that all of these parties have made arguments contrary to the refund interests of the applicants.
Although the KCMSD and plaintiffs oppose the position of the taxpayers on the merits of the refund issue, they do not oppose the taxpayers’ intervention for the limited purpose stated in their motion for leave to intervene. The KCMSD and plaintiffs emphasize that the taxpayers should be strictly limited to intervene for the purpose of asserting their rights and interests in the refund of the property tax levy recently reversed by the Supreme Court. The taxpayers shall be allowed to intervene.
*2 Intervenors request that this Court grant their motion to recover:
(a) a refund of all 1987 KCMSD property tax payments made in compliance with the $1.95 levy increase, whether paid under protest or not; and
(b) a refund of all 1988 and 1989 KCMSD property tax payments made in compliance with the $1.95 levy increase, whether paid under protest or not.
Intervenors also request that a fair and expeditious refund procedure be promptly established.
1987 Taxes On September 15, 1987 this Court ordered a $1.95 tax levy increase which was affirmed and modified by the Eighth Circuit and reversed by the United States Supreme Court on April 18, 1990. In 1987, pursuant to Mo.Rev.Stat. § 139.031, approximately 9,000 taxpayers paid a total of $10,695,197 under protest. Icelean Clark et al. Reply Memo at 3. These funds have been held in escrow by Jackson County.
On August 19, 1989 the Eighth Circuit modified the property tax increase ordering that future funding of the KCMSD desegregation liability be accomplished by the Kansas City School Board submitting a levy to collection authorities adequate to fund its desegregation budget—subject to limitations set by the District Court. Jenkins, 855 F.2d at 1314. The intervenors assert that it is indisputable that the 1987 KCMSD property tax levy increase from $2.05 to $4.00 was the result of this Court’s September 15, 1987 order. The intervenors submit that the Supreme Court’s decision held that the 1987 property taxes were improperly collected and should be returned to the taxpayers. The KCMSD, plaintiffs and the State of Missouri agree that the 1987 taxes should be refunded; “Icelean Clark, et al., are correct insofar as they suggest that the 1987 tax levy increase has now been determined to be invalid.” Opposition of KCMSD and Plaintiffs to Proposed Intervenor at 4.
Missouri statutes provide that, in the event a taxpayer is successful in his protest and recovery action, the protested tax payment—together with interest—is to be returned to the taxpayer by county collection officials. Mo.Rev.Stat. § 139.031.4 The intervenors maintain that all 1987 taxes should be refunded, whether paid under protest or not. The intervenors suggest that because of lack of knowledge or legal resources, taxpayers who paid a total of $23,140,758 did not make use of the Missouri protest provisions. Icelean Clark et al. Reply Memo at 6. However, the KCMSD, plaintiffs and State argue that the Court should only order a refund of those taxes paid under protest.
The intervenors cite McKesson Corp. v. Division of Alcoholic Beverages & Tobacco, 495 U.S. ––––, 110 S.Ct. –––– (June 4, 1990) which stated that “the Due Process Clause of the Fourteenth Amendment obligates States to provide meaningful backward-looking relief to rectify any unconstitutional deprivation.” The intervenors contend that this Court must refund funds not paid under protest because specialized state protest and refund devices that usually apply only to taxes levied by the state could hardly be considered meaningful backward-looking relief for taxpayers seeking a refund of an unlawful tax levy. The intervenors suggest that principles of fundamental fairness and due process dictate a full refund for all taxpayers, regardless of whether they paid under protest.
*3 The KCMSD, plaintiffs and the State argue that the intervenors ignore the requirements of Missouri law concerning taxes paid under protest. The KCMSD and plaintiffs argue that there is no proper legal basis for deviating from Missouri’s statutory requirements. In order for a taxpayer to be eligible for a refund, the taxpayer must have protested the tax at the time of

payment and must have filed a petition seeking recovery of the taxes in the circuit court within ninety days after filing the protest. Mo.Rev.Stat. § 139.031.
Missouri law has consistently held that taxes, once paid, can only be recovered through proper statutory proceedings. B & D Inv. Co. v. Schneider, 646 S.W.2d 759 (Mo.1983) (en banc). In B & D, the court held that a taxpayer must comply with the statute requiring a property owner to file a written statement with the collector protesting all or any part of taxes so paid. The statute exclusively prescribes the manner in which a taxpayer must proceed in paying illegally imposed taxes before the taxpayer may recover such taxes by judicial action. Id. at 763–4. See also Adcor Realty v. State Tax Comm’n, 627 S.W.2d 604, 606 (Mo.1982) (en banc); Xerox Corp. v. Travers, 529 S.W.2d 418, 422 (Mo.1975) (en banc). Specifically, the Missouri statute provides that “[a]ny taxpayer may protest all or any part of any taxes assessed against him.... Any such taxpayer desiring to pay any taxes under protest shall, at the time of paying such taxes, file with the collector a written statement setting forth the grounds on which his protest is based.” Mo.Rev.Stat. § 139.031.(1).
The KCMSD and plaintiffs also submit that while the Court in McKesson reversed the Florida Supreme Court’s refusal to order a refund of money collected through a tax scheme which was found to violate the Due Process Clause, it expressly noted that Florida law did not require a taxpayer to pay under protest in order to preserve the right to challenge a remittance in a post-payment refund action. Id. at 4667, n. 4. Conversely, Missouri requires taxpayers to protest in order to preserve the right to bring a postpayment refund action. The Court in McKesson stated that the “state’s freedom to impose various procedural requirements on actions for postdeprivation relief sufficiently meets [the state’s concern for fiscal stability] with respect to future cases. The state might, for example, provide by statute that refunds will be available only to those taxpayers paying under protest.” Id.
Thus, as long as the state has made a protest procedure available, there is no constitutional right to a refund of unlawfully collected taxes. The Supreme Court in McKesson noted that “States may avail themselves of a variety of procedural protections against any disruptive effects of a tax scheme’s invalidation.” Id. at 4674. Missouri has clearly adopted such a procedural protection by enacting a protest statute. McKesson emphasized that in postpayment recovery actions, the taxpayers’ interests are not the only interests at stake; countervailing state interests in fiscal stability must also be considered. McKesson found that a protest requirement balanced competing interests. Such procedural measures would “sufficiently protect states’ fiscal security when weighed against their obligation to provide meaningful relief for their unconstitutional tax.” Id.
*4 McKesson illustrated that there is no blanket refund requirement for money collected under a subsequently invalidated tax scheme. A state has the power to limit the circumstances under which it will be required to provide refunds. Therefore, only those 1987 tax payments paid under protest shall be subject to a refund. The Court notes that the full refund of the income tax surcharge provides no precedent for the return of non-protested 1987 property taxes. The income-tax surcharge was not covered by the protest statute but was subject to a separate statutory refund procedure. See Mo.Rev.Stat. § 143.801; Homestake Lead Co. v. Director of Revenue, 759 S.W.2d 847, 849 (Mo.1988) (en banc).
The intervenors respond to the KCMSD, plaintiffs and State by suggesting that the protest provision under Mo.Rev.Stat. § 139.031 does not control this situation because the statute applies only to state taxes imposed by state and local taxing authorities—not to an unlawful judicial tax levied by a federal court. The KCMSD and plaintiffs respond that the plain language of section 139.031(1) contradicts the intervenor’s position. The statute clearly states that “any taxpayer may protest all or any part of any taxes assessed against him, except taxes collected by the director of revenue of Missouri.” Even if the taxes were assessed by a federal court, the plain language of the statute allows protests of “any taxes”, therefore the Missouri protest statute controls this case.
Taxpayers have routinely filed section 139.031 protests based on a variety of legal challenges, including protests that taxes were levied under an unconstitutional statute or on behalf of a governmental entity not properly meeting statutory requirements. See Boyd–Richardson Co. v. Leachman, 615 S.W.2d 46 (Mo.1981) (en banc). The Court agrees that the plain language of section 139.031 applies to this case and a refund is appropriate only for properly protested 1987 property taxes.
The State proposes that, if escrowed funds are insufficient, refund payments authorized by the Court should be the responsibility of the KCMSD. The State claims that under the Supreme Court’s April 18, 1990 decision, the KCMSD no longer has the option to choose not to pay its share of the remedial costs; requiring the State to make the refunds would “permit the KCMSD to simply disavow financial responsibility for the injury it has begotten while permitting it to propose, without risk, any expense and grandiose programs or facilities it might desire, without any concern for fiscal responsibility.” State’s Response at 13.

The KCMSD and plaintiffs disagree with the State’s position, suggesting that it is irrelevant and incorrect to suggest that additional refund payments could be made by the KCMSD and financed by a tax increase regardless of the reasonable limits required by the Eighth Circuit. More importantly, the KCMSD and plaintiffs submit that as a matter of law, only properly protested property taxes are eligible for a refund. These funds are currently held in escrow so no question need arise about the source of a refund.
1988 Property Taxes *5 While the Eighth Circuit affirmed this Court’s $1.95 KCMSD property tax increase, it instructed that future funding of KCMSD’s obligations under the desegregation plan be modified. Jenkins v. Missouri, 855 F.2d 1295, 1314 (8th Cir.1988). Future levies were to be set by the Kansas City School Board—subject to limits set by the District Court. The Eighth Circuit’s August 19, 1988 opinion stated that the levy must be set by the KCMSD rather than the District Court. The Eighth Circuit’s mandate was issued on October 14, 1988.
The intervenors argue that, prior to October 14, 1988 the District Court did not have jurisdiction to implement the modification set forth in the mandate. The intervenors suggest that the court did not technically implement the modification until nearly one full year later when, in its September 13, 1989 order, this Court approved the 1989 levy set by the Kansas City School Board pursuant to the August 19, 1988 opinion of the Eighth Circuit. While it may be technically correct that the district court did not have jurisdiction to implement the modification mandated by the Eighth Circuit, there is no question that the KCMSD followed the modified procedure approved by the Eighth Circuit and affirmed by the Supreme Court. The proper focus is on what action the KCMSD took.
On September 13, 1988 the KCMSD met and voted to seek approval of a cap on the district’s property tax levy of no more than $4.23 for $100 of assessed valuation pursuant to the August 19, 1988 opinion of the Eighth Circuit Court of Appeals. The KCMSD stated that it would officially set the levy at the new maximum rate once the Court ruled. If the District Court did not rule on the KCMSD’s motion by October 11, 1988, the Board anticipated that it would set the 1988–89 levy at a rate of $4.00 per $100 assessed valuation pursuant to this Court’s September 15, 1987 ruling. This Court ordered that because the 1988 tax bills had already been sent, it was too late to authorize a new maximum levy for 1988. January 3, 1989 Order at 6–7. Thus, the Court tacitly approved as reasonable the Board’s action at its October 11, 1988 meeting to set the levy at $4.00. The intervenors argue that rejection of the proposed $4.23 levy cannot be considered as approval of the existing $4.00 levy.
Since the Eighth Circuit mandate had not come down, the intervenors argue that the property tax bills for 1988 were based on the court-ordered levy imposed in 1987 which was subsequently reversed by the Supreme Court. In addition, intervenors submit that the Supreme Court’s opinion found that the KCMSD did not levy its own tax rate in October, 1988. Intervenors quote the language of the Supreme Court which stated that “The Court of Appeals required the District Court to use less obtrusive procedures beginning with the fiscal year commencing after the remand but did not require the District Court to reverse the tax increase that it had imposed for prior fiscal years.” Jenkins, 110 S.Ct. at 1664, n. 18. (emphasis added). The KCMSD, plaintiffs and State suggest that the intervenors read far too much into a single “s” in the word “years.” The intervenors attempt to stretch the use of the plural word “years” into a factual finding about the propriety of the 1987 and 1988 tax levies. Yet, the Supreme Court avoided dictating the precise consequences of its ruling which was that only tax increases imposed pursuant to the Eighth Circuit’s revised procedures were valid.
*6 The Supreme Court remanded the case to the Eighth Circuit to determine whether the essential elements of its revised procedures were followed in setting the KCMSD property tax levy. The KCMSD, plaintiffs and State maintain that in 1988 the KCMSD itself adopted the $4.00 tax levy. Prior to the Eighth Circuit’s decision, this Court and the KCMSD understood who must set the levy for 1988. The Board itself set the 1988 levy on October 11, 1988.
Intervenors suggest that since the Eighth Circuit mandate had not yet issued, it was impossible for the parties to follow the Eighth Circuit’s guidance on October 11, 1988. While the failure of the Eighth Circuit’s mandate to issue before October 11, 1988 prevented the KCMSD from obtaining a ruling from this Court on its request for a higher limit, it did not prevent the KCMSD from setting its own levy at the same rate previously approved by this Court. The KCMSD followed the essential elements of the Eighth Circuit’s modifications to the district court’s previous orders. At its October 11, 1988 meeting, the KCMSD, not the district court, set the levy at $4.00 per $100 assessed valuation. Also, by the time the taxes set by the KCMSD’s action of October 11, 1988 were actually collected, the Eighth Circuit’s modification to the district court order was in effect. The taxes were collected lawfully in accordance with the Eighth Circuit’s modified procedure.

Thus, the tax levies adopted by the KCMSD in 1988 and 1989, pursuant to the Eighth Circuit’s decision, were valid and should be released to the KCMSD and paid to the State in accordance with the State’s Motion of May 23, 1990 and Joint Response of Plaintiffs and KCMSD. The intervenors’ request for a refund of protested and unprotested property taxes collected in 1988 and 1989 pursuant to the increase established by the KCMSD shall be denied.
Escrowed Taxes The State of Missouri requests this Court to direct the property tax funds collected in 1988 and 1989 pursuant the orders of this Court, as modified by the Eighth Circuit and affirmed by the Supreme Court, to be paid directly to the State. During 1988 and 1989, $23,170,027 was collected and is currently held under protest by the Jackson County tax collection authority. State’s Motion at 2. The State understands that the Jackson County tax collection authority intends to release those funds to the KCMSD upon instruction from the Court.
In its order of February 22, 1988, this Court held that the KCMSD owes the State a credit of $7,427,638.77 pursuant to its reallocation of the respective obligations of the KCMSD and State for funding capital improvements under Phase I of the KCMSD Capital Improvements Plan. State’s Motion at 2. The reallocation resulting in a credit to the State was a result of the Eighth Circuit’s Jenkins v. Missouri, 807 F.2d 657, 685 (8th Cir.1986) decision. In its orders of October 18, 1989 and November 2, 1989, this Court recognized that the KCMSD owes the State a total of $15,855,061. State’s Motion at 2.
*7 The payment which the State requests would abrogate the need for funds to be taken from the KCMSD operating budget to apply to the debts to the State. Recognizing that the KCMSD may intend to appeal the Court’s determination that the base costs of the 1986–87 magnets are not properly desegregation expenses, the State requests that if the Court does not require Jackson County to immediately pay those funds over to the State to liquidate the KCMSD’s debts, it should require the KCMSD to place any funds distributed by Jackson County in a new interest bearing escrow account pending resolution of any appeal. The State proposes that it would be prudent for the KCMSD to take advantage of the one-time availability of escrowed funds in order to pay off quantified past obligations to the State.
The KCMSD and plaintiffs agree, without waiving their rights under this Court’s February 1, 1990 Order, that the Court should order the KCMSD to pay the State the property tax funds for years 1988 and 1989 which are currently held in escrow. With one caveat, the KCMSD would consent to such an order: the KCMSD is not willing to waive its rights under this Court’s February 1, 1990 order to obtain further review of the October 18, 1989 and November 2, 1989 rulings. If these rights are preserved, the KCMSD is willing to pay the escrowed funds over to the State.
The State further argues that the KCMSD now has the capacity to obtain any funds necessary to pay all of its desegregation obligations, in full, without reliance on any other party. Specifically, the State submits that the concept of joint and several liability should no longer apply to allow the KCMSD to “stand idly by and to continue to propose even more extravagant and expensive programs for which the State would be obligated to pay some portion of the KCMSD’s share.” State’s Motion at 7.
The KCMSD submits that the State is incorrect in its assertion that the KCMSD now has the capacity to obtain all funds necessary to pay all of its desegregation obligations in full and that joint and several liability should no longer apply in this case. The KCMSD notes that the Eighth Circuit’s ruling on the tax relief ordered by this Court in Jenkins, 855 F.2d 1295, 1315–16 (8th Cir.1988), left no doubt that the KCMSD might continue to lack adequate revenue to completely fund its share of the desegregation programs. The Eighth Circuit indicated that the property tax should not be raised to unreasonable levels merely to cover the KCMSD’s share. The Eighth Circuit also stated that the “State does have an obligation to pay any required sums which are beyond the capacity of the school district.” Id. at 1316, n. 21. The Supreme Court affirmed the Eighth Circuit.
Thus, there is no basis for the State’s assertion that the KCMSD must now pay all of its desegregation obligations, regardless of the availability of revenues to meet those obligations. This Court’s orders as modified by the Eighth Circuit and affirmed by the Supreme Court provide a process for tax increases that yield desegregation revenue to offset part of the KCMSD’s share. However, such orders do not eliminate the State’s responsibility under principles of joint and several liability to fund whatever portion of the District’s obligation there may be in excess of the revenue generated by a reasonable levy rate.
*8 Accordingly, it is hereby
ORDERED that property taxpayers’ motion to intervene for the limited purpose of seeking a full refund is granted; and it is further

ORDERED that the 1987 tax levy increase was improper under the Supreme Court’s decision in Missouri v. Jenkins, 495 U.S. ––––, 110 S.Ct. –––– (April 18, 1990), and the protested funds collected under the 1987 tax levy and held in escrow shall be deemed available to be refunded to the affected taxpayers; and it is further
ORDERED that the parties shall file with the Court a proposed procedure to refund the affected taxpayers; and it is further
ORDERED that the tax levies set by the KCMSD in 1988 and 1989 are valid and operable and meet the constitutional requirements as set forth in the Supreme Court’s decision in this matter; and it is further
ORDERED that the $23,170,027 in escrowed taxes for 1988 and 1989, plus accrued interest, shall be paid directly to the State to the extent necessary to satisfy the obligations described in this Court’s orders of February 22, 1988 ($7,427,638.77), October 18, 1989 (7,804,780) and November 2, 1989 (8,050,281); and it is further
ORDERED that notwithstanding the above, the KCMSD and plaintiffs retain their rights under this Court’s February 1, 1990 order to obtain further review of this Court’s orders of October 18, 1989 and November 2, 1989; and it is further
ORDERED that the State continues to be jointly and severally liable for desegregation obligations.
All Citations Not Reported in F.Supp., 1990 WL 362044

 
 931 F.2d 470 United States Court of Appeals,
Eighth Circuit.
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, 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, 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, Appellees, American Federation of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri, Appellants, Wendell Bailey, Treasurer of the State of Missouri;
Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri,
Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City Mantel & Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; Robert Frazier; Rick Feierabend; Linda Hollenbeck; James Hollenbeck; Susan Horseman; and Clifford M. Horseman, Jackson
County, Missouri. 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, 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, American Federal of Teachers, Local 691, v.
The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City Mantel & Tile Co.; Coulas & Griffin Insurance Agency, Inc.; Sharon Dunham; Lindsay K. Kirk; Robert Frazier; Rick Feierabend; Linda Hollenbeck; James Hollenbeck; Susan Horseman; and Clifford M. Horseman, Jackson
County, Missouri. 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, 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, Appellees, American Federation of Teachers, Local 691,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan L. Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, 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, 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, Appellees, American Federation of Teachers, Local 691,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, 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, 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, Appellees, American Federation of Teachers, Local 691,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, 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, 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, Appellees, American Federation of Teachers, Local 691,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellees, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees, Ronika Newton, by her next friends, Ronald and Debra Newton; Marques Bussey, by his next friend, Christie
Newman; Brian McClelland, by his next friend, Ella McClelland; Bryant Lightsey, by his next friend, Gina Lightsey; Nia Webster, by her next friend, Ajamu Webster; and Courtney Adams, by her next friend, Clinton
Adams, Jr., Appellants.
Nos. 89–1253, 89–1311, 89–1838, 89–1956, 89–2337 and 89–2643. |
Submitted Feb. 21, 1990. |
Decided April 22, 1991.
Synopsis Appeal was taken from order of the United States District Court for the Western District of Missouri, Russell G. Clark, J.,

entered in school desegregation case. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) Court properly approved revised procedure for funding desegregation remedies; (2) State was properly required to pay costs of asbestos removal from schools being renovated as part of desegregation plan; (3) Court properly approved costs overrun on construction of new high school; (4) Court properly approved formula for calculating costs which the school district avoided as result of establishment of two new schools required by desegregation plan; (5) desegregation monitoring committee was not required to allow State to bring its own court reporter to the meetings; and (6) Court properly disqualified counsel who had conflict of interest.
Affirmed.
Attorneys and Law Firms
*474 Michael J. Fields and John W. Simon, Jefferson City, Mo., for appellants.
Patricia Brannan, Washington, D.C., and Arthur Benson, Kansas City, Mo., for appellees.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion
JOHN R. GIBSON, Circuit Judge.
The Kansas City school desegregation remedy continues to spawn numerous district court orders and appeals therefrom, most of them by the State of Missouri. Here, the State appeals from five separate district court orders that: 1) approved a revised procedure for funding the desegregation remedy; 2) required the State to pay the entire cost of asbestos removal in one phase of the school renovation capital improvements plan and fifty percent of it in the remaining phases of the plan; 3) approved the cost overrun on the construction of the new Central High School and required the State to pay half; 4) approved a formula for calculating costs the school district avoided as a result of the establishment of two new middle schools required by the desegregation plan; and 5) refused to require the desegregation monitoring committee to allow the State to bring its own court reporter to the committee’s proceedings. In addition, a group of schoolchildren appeal from an order disqualifying their attorney and denying their motion to modify the magnet school plan. We affirm the orders entered by the district court.
*475 In a June 5, 1984, order the district court rejected claims of interdistrict violations. Jenkins v. Missouri, No. 77–0420– CV–W–4, slip op. at 105 (W.D.Mo. June 5, 1984). After hearing additional evidence, the district court found the State of Missouri and the Kansas City, Missouri School District (KCMSD) liable for racial segregation of students within KCMSD and for failure to dismantle the dual school system. Jenkins v. Missouri, 593 F.Supp. 1485, 1503–04 (W.D.Mo.1984). After additional hearings, the district court ordered intradistrict remedies against KCMSD and the State. This court reviewed these several orders in Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). Additional orders dealt specifically with developing and funding a desegregation plan, including a capital improvement plan, which provided for the renovation of certain existing facilities, construction of new facilities, and a magnet school plan. Jenkins v. Missouri, 639 F.Supp. 19 (W.D.Mo.1985); Jenkins v. Missouri, 672 F.Supp. 400 (W.D.Mo. 1987). We affirmed these orders in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ). The Supreme Court granted certiorari to hear appeals related to the funding of the remedy by increased property taxes, Missouri v. Jenkins, 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1990), and affirmed this court’s rulings on the issue. Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990).
The implementation and funding of the desegregation remedy has resulted in continued litigation. The district court established a desegregation monitoring committee to oversee implementation of the court’s orders, recommend modifications, and consider certain issues subject to review by the district court. The functioning of this committee and issues relating to the remedy and the funding of the remedy were before us in Jenkins v. Missouri, 890 F.2d 65 (8th Cir.1989) (Jenkins III ). As the parties have continued to differ on the development of the details of the desegregation remedy, the district court has held additional hearings and entered numerous orders. A group of six orders comes to us on appeal in what is now the fourth round of the intra-district desegregation litigation.1 While the broad scope of the desegregation litigation bears upon each issue in these orders, we believe that it is most efficient to forego a lengthy history and instead state the relevant facts as we discuss the separate issues.

I.
The State first appeals from the district court’s order of January 3, 1989, approving a revised procedure for funding the desegregation remedy. Jenkins v. Missouri, No. 77–0420–CV–W–4 (W.D.Mo. Jan. 3, 1989).
In response to this court’s ruling that the district court exceeded its power in ordering an income tax surcharge to fund desegregation costs, Jenkins II, 855 F.2d at 1315–16 (8th Cir.1988), KCMSD requested increased funds from the State in order to insure that the remedy would be fully funded. The January 3, 1989, order implemented a revised funding method, known as a drawdown procedure, which works as follows: In any given month, desegregation costs are first paid by KCMSD with available desegregation revenues. After KCMSD spends all of its available funds, desegregation expenses are paid by withdrawing money from a special joint program account, into which the Treasurer of Missouri deposits the State’s share of desegregation costs. The court ordered the State to maintain an $11 million balance in the account at the beginning of each month. Jenkins, slip op. at 4 (Jan. 3, 1989). Prior to this order, the State had been *476 ordered to maintain a $5.25 million balance. The district court increased the State’s funding obligation because the State and KCMSD were jointly and severally liable and this court has mandated that the remedies be fully funded.
[1] The State argues that the district court erred in ordering the revised drawdown procedure because the State is now required to pay remedial costs for which KCMSD had been previously held to be solely liable. The State boldly argues that the district court has not held the State and KCMSD jointly and severally liable for the legal wrong underlying the remedy. The State urges that the district court did not make a finding of joint and several liability for the underlying wrong at the liability trial, and that the district court’s application of joint and several liability was a “recent fabrication” in reaction to the State’s successful appeal of the income tax surcharge.
We reject these arguments. We view the State’s arguments as mere efforts to relitigate an issue that was settled long ago. In our decision dealing with the funding of the remedy, we made abundantly clear “that the constitutional violations must be remedied and the remedies fully funded.” Jenkins II, 855 F.2d at 1316. We stated:
In our earlier en banc opinion we made clear that the remedy ordered by the district court must be fully funded. Should the funds that KCMSD can provide for desegregation expenses under today’s decision fall short, the remainder must be paid by the State, as the orders of the district court have imposed joint and several liability on the State and KCMSD.
Id. (citation omitted).
The district court’s order recognized this very language in requiring the State to pay the balance of desegregation expenses as a jointly and severally liable party. Jenkins, slip op. at 4 (Jan. 3, 1989). In so doing, the district court carefully followed our specific directions that the remedies be fully funded.
The State’s argument, with its all too evident personal overtones implying that the district judge recently fabricated a finding of joint and several liability, is plainly refuted by numerous orders entered in this litigation. For example, the district court order entered November 12, 1986, explicitly found the State and KCMSD jointly and severally liable for a portion of the magnet school plan, and the State solely liable for the remaining costs of its implementation. Jenkins v. Missouri, No. 77– 0420–CV–W–4, slip op. at 1 (W.D.Mo. Nov. 12, 1986). The same order held the State and KCMSD jointly and severally liable for the cost of the capital facilities program, the site acquisitions, and the magnet school plan. Id. at 5–6.
Likewise, in its July 6, 1987, order, the district court applied comparative fault principles to allocate desegregation costs between KCMSD and the State, ruled that the State and KCMSD were “jointly and severally liable for the entire [1987– 1988] budget,” Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 15 (W.D.Mo. July 6, 1987), and ordered contribution between the two constitutional violators to be 75 percent for the State and 25 percent for KCMSD, id. at 14. The district court ordered joint and several liability in that instance pursuant to this court’s mandate that “the remedy ordered by the Court be fully funded.” Id. at 15 (quoting Jenkins I, 807 F.2d at 686).2 This court subsequently affirmed the July 6, 1987 order. Jenkins II, 855 F.2d at 1308.

It is significant that five other district court orders3 also refer to the joint and *477 several liability of KCMSD and the State. In appealing these orders, the State never attacked the findings of joint and several liability. Instead, the State limited its appeals to challenging the amount of financial contribution, the allocation of costs, and alleged violations of the eleventh amendment and federal-state comity principles. In the State’s appeal from the district court’s allocation of desegregation costs, the State admitted that “the State and KCMSD have been held jointly liable for an intradistrict violation.” Reply Brief for Appellant at 27, Jenkins II, 855 F.2d 1295 (8th Cir.1988) (No. 86–1934–WM). In the same appeal, the State argued that “the court repeatedly made the State liable for most of the mandated costs, while casting its orders in the form of joint and several liability.” Brief for Appellant at 15–16, Jenkins II, 855 F.2d 1295 (8th Cir.1988) (No. 86–1934–WM). We need not read these statements as admissions that the district court based its orders upon a finding of joint and several liability, however, because the district court orders themselves clearly address that issue.
In Jenkins II, we affirmed the five district court orders using the language of joint and several liability. 855 F.2d at 1310–11, 1314 n. 18, 1316 n. 21. The State’s argument that these orders only provided for joint and several liability as to certain parts of the remedy is fully answered by this court’s affirmance of these orders. In affirming these orders, we explicitly stated that the remedy must be fully funded and should KCMSD’s funds fall short, the remainder must be paid by the State, as a jointly and severally liable party. Id. at 1316.4
Insofar as the State has any right to complain, not having raised the issue on appeal from the earlier orders, it is evident that the district court based its order on its findings that the State created a system of segregated schools, and that both the State and KCMSD failed to dismantle that system. Jenkins II, 855 F.2d at 1300 (citing Jenkins, 593 F.Supp. at 1485, 1490, 1504). We entertain no doubt that the district court’s 1985 order based its finding of intradistrict liability on the State’s and KCMSD’s failure to perform a common duty and on an indivisible harm caused by independent separate and concurring torts of two or more tortfeasors. Jenkins, 593 F.Supp. at 1503–04. Joint and several liability is, therefore, appropriate. Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, and n. 8, 99 S.Ct. 2753, 2756 and n. 8, 61 L.Ed.2d 521 (1979); Brickner v. Normandy Osteopathic Hosp., Inc., 687 S.W.2d 910, 911 (Mo.Ct.App.1985); See Restatement (Second) of Torts § 878 (1977).
We deem it unnecessary to discuss the several criminal cases cited by the State, or its argument about the burdens placed upon all of the Missouri taxpayers. The State has opposed the district court orders placing a greater financial burden on KCMSD as well as orders placing on the State an obligation to pay for remedies KCMSD could not fund. Simply put, joint and several liability is an issue that has been previously decided by the district court and this court, and we reject the State’s effort to argue otherwise.5 In similar circumstances, we would entertain the possibility of awarding sanctions, but because a fee will be awarded to prevailing *478 counsel, we are satisfied that it is most appropriate to leave the State with the additional expense it will be required to pay.
II.
[2] The State next appeals from the district court’s May 5, 1989, order increasing funding for asbestos abatement in the capital improvement plan ordered as part of the desegregation remedy. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 4–5 (W.D.Mo. May 5, 1989).
KCMSD sought $910,224 in additional funding from the State for 100% of the asbestos abatement costs incurred in the renovation of five elementary schools and one high school.6 Id. at 1. In addition, KCMSD sought a court order authorizing it to proceed with asbestos abatement for all Phase III renovations and directing that the costs of such removal be shared by the State. Id. KCMSD also sought a court order establishing guidelines for asbestos abatement for the remainder of the capital improvement plan in compliance with the Asbestos Hazard and Emergency Response Act (AHERA), 15 U.S.C. §§ 2641– 2654 (1988).
The district court concluded that asbestos abatement costs were a proper desegregation expense and ordered the additional funding, but allocated the cost equally between KCMSD and the State. Jenkins, slip op. at 4 (May 5, 1989). The district court also concluded that asbestos abatement costs in later phases of the capital improvement plan should be allocated equally between the State and KCMSD with joint and several liability, and approved the use of the AHERA regulations as guidelines for the asbestos abatement process. Id. at 4–5. See 15 U.S.C. § 2643; 40 C.F.R. §§ 763.80–99 (1990).

On appeal, the State makes the same arguments that the district court rejected. The State first argues that the presence of asbestos was not caused by illegal segregation in the school district, is not a vestige of segregation, and therefore, the cost of eliminating asbestos is not a cost of desegregation or a cost for which the State can be held jointly and severally liable. The State urges that the duty to abate asbestos has been placed essentially on all schools in the country, and that it is a problem at both formerly all black and formerly all white schools. The State also argues that our earlier decision, Jenkins II, required KCMSD to pay asbestos abatement costs out of interest income from capital improvement bonds, and that KCMSD is required to pursue claims against other responsible entities or funding sources before it can recover such expenses from the State.
The district court based its ruling concerning asbestos abatement costs on its previous findings, affirmed by this court, that “ ‘[t]he improvement of school facilities is an important factor in the overall success of this desegregation plan,’ ” and that “ ‘safety and health hazards [in a school facility are] both an obstacle to education as well as to maintaining and attracting nonminority enrollment.’ ” Jenkins, slip op. at 3 (May 5, 1989) (quoting Jenkins, 639 F.Supp. at 40) (emphasis added in May 5 order). The district court also acknowledged this court’s conclusion that capital improvements are “ ‘necessary for successful desegregation,’ ” id. (quoting Jenkins I, 807 F.2d at 685), and are “ ‘required both to improve the education available to the victims of segregation as well as to attract whites to the schools,’ ” id. (quoting Jenkins II, 855 F.2d at 1305).
Moreover, we note that the district court ordered the renovation of older school buildings to remedy physical facilities that “ ‘have literally rotted,’ ” Jenkins II, 855 F.2d at 1300 (quoting Jenkins, 672 F.Supp. at 411) and that both KCMSD and the State caused the decay of these facilities. Jenkins II, 855 F.2d at 1305 (citing Jenkins, slip op. at 4 (November 12, 1986); Jenkins, 639 F.Supp. at 411). KCMSD presented uncontested evidence to the district court that asbestos was found in existing buildings during the court-ordered renovation, and that many asbestos-containing products *479 that normally would pose no danger (such as flooring), became potentially dangerous when disturbed during the renovation work. Thus, the evidence in the record before the district court differentiates this situation from situations found at other school districts, or for that matter any other public buildings. Here, KCMSD and the State are under an order to remove decay, caused by both, so as to provide safe and healthy school facilities that are not an obstacle to education or desegregation, and asbestos removal is necessary to comply with that order. The unique circumstances presented here cause us to conclude that the district court did not err in holding that asbestos abatement costs are a proper desegregation expense, and in requiring the State to assume a portion of these costs as a jointly and severally liable party.
The State’s remaining arguments on this issue require little discussion. The State’s insistence that our earlier decision required KCMSD to fund asbestos removal out of interest from funds generated by the bond issue simply does not square with the language in our opinion. See Jenkins II, 855 F.2d at 1306. Our language in that decision suggested only that interest from bond proceeds will be available as a possible source of funding KCMSD’s share of additional desegregation expenses, such as additional asbestos removal costs. Id. Likewise, the argument that the district court abused its discretion in not requiring KCMSD to pursue claims against responsible entities is fully answered by the fact that such litigation has commenced, as demonstrated by pleadings furnished to this court of which we take judicial notice. School Dist. v. Acands, Inc., No. 87–903– CV–W–9 (W.D.Mo., docketed Oct. 23, 1987). Similarly, we cannot conclude that the district court abused its discretion in refusing to allow the State to make its own asbestos survey of the KCMSD schools. We reject this argument in light of the facts that the State declined to participate in the formulation of a plan for asbestos abatement in the KCMSD schools or to initiate joint meetings with the staff, and that the desegregation monitoring committee was kept abreast of the asbestos abatement problems.
We further note that the State did not appeal earlier orders of the district court and this court that included asbestos abatement costs in the capital improvements plan. Asbestos abatement costs were included in the budgets for Phase III capital improvement projects that the district court held were to be financed by the State, see 639 F.Supp. at 56, and the budget in the long range capital improvement plan approved by this court. Jenkins II, 855 F.2d at 1295. Accordingly, for the reasons stated above, we cannot conclude that the district court’s characterization of asbestos abatement costs as a desegregation expense is clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 573–74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
III.
The State next appeals from that portion of the district court’s January 13, 1989, order that approved a decision of the desegregation monitoring committee refusing to allow a court reporter to be present at its proceedings. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 5 (W.D.Mo. Jan. 13, 1989). The district court held that the committee was not intended to

function with “overly formal procedures,” and that the presence of a court reporter would tend to increase the level of formality and thereby hinder “an open exchange of thoughts, opinions and ideas.” Id.
To a great extent, the State’s arguments express objections to the functioning of the desegregation monitoring committee that we addressed in the Jenkins III opinion. 890 F.2d at 66–68. In Jenkins III, we held that the use of the desegregation monitoring committee was an appropriate exercise of the district court’s powers in obtaining assistance for carrying out its duties, and that decisions of the committee could be final unless appealed to the district court. Id.
[3] As the creation of this committee was within the district court’s equitable power, and as the parties have a right to *480 appeal the committee’s rulings to the district court, we are not convinced that the district court erred or abused its discretion by denying the State’s request to require the committee to allow the presence of a court reporter at its meetings. Our earlier opinion made clear that the use of this committee is based upon the right of de novo appeal, and we believe it best to leave the details of the committee’s functioning to the district court’s sound discretion. The State has established neither an error compromising legal rights nor an abuse of discretion. We affirm the district court’s order refusing to require the committee to allow a court reporter at its proceedings.
IV.
[4] The State appeals from the district court’s May 24, 1989, order that adopted a formula for calculating costs that were avoided in other parts of the school system in 1987–88 because of the establishment of Lincoln and New Paseo middle schools. Jenkins v. Missouri, No. 77–0420–CV–W–4 (W.D.Mo. May 24, 1989). In making its determination, the district court accepted KCMSD’s proposal, which divided costs into fixed and variable components. The court found that fixed costs would not generate cost avoidance because they are necessary to operate the schools regardless of enrollment, and that variable costs might generate cost avoidance because they are dependent on enrollment and calculated on a per pupil basis. Id. at 4–5.
The State argues that the court should adopt a formula previously used to calculate the magnet transportation budget that, incidentally, the State had unsuccessfully opposed on appeal in Jenkins III. 890 F.2d at 69. The State’s approach would multiply the number of students from the KCMSD attending Lincoln and New Paseo middle schools by the inflation-adjusted per pupil cost of educating them elsewhere in the school district. The per pupil cost would be based on the per pupil figure used in the 1984–85 school year, the year preceding implementation of the desegregation plan, and would be adjusted for inflation. The State’s formula would result in a cost avoidance figure of $2,278,604, as compared with the $96,106 reached by application of the KCMSD formula. Jenkins, slip op. at 2–3 (May 24, 1989).
The KCMSD formula resulted in a lower cost avoidance figure because it divided costs into fixed and variable categories and excluded from its calculation such fixed items as the costs of principals, assistant principals, instruction coordinators, librarians, cafeteria employees, nurses, clerical employees, security guards, utilities, maintenance, equipment, telephone service, and other similar expenses. Id. at 4–5. The court found that these costs will occur at other schools in KCMSD regardless of the transfer of some of their students to Lincoln and New Paseo. Id. at 5. Variable costs that were avoided by the opening of the two middle schools include the costs of such items as supplies, textbooks, and postage. The district court found that these costs will decline at other schools in KCMSD as their students transfer to Lincoln and New Paseo. Id.
The district court thus concluded that the distinction between fixed and variable costs was valid, and it rejected the State’s proposal because it included fixed costs that are not avoided elsewhere as a result of student transfers to Lincoln and New Paseo.
The State argues, in addition to advocating application of the magnet transportation budget formula, that the use of the KCMSD formula violates limitations on desegregation remedies announced in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ) and reiterated in Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ).
In Milliken I, the Court stated that “the scope of the remedy is determined by the nature and extent of the constitutional violation.” 418 U.S. at 744, 94 S.Ct. at 3127. In Milliken II, the Court emphasized that “federal-court decrees must directly address and relate to the constitutional violation itself.” 433 U.S. at 282, 97 S.Ct. at 2758. KCMSD agrees that Milliken I and

Milliken II require that the State receive *481 an appropriate credit for any savings in the KCMSD’s operating budget that result from operation of the new magnet schools funded by the desegregation plan’s base budget. KCMSD asserts that its formula abides by Milliken I and Milliken II by insuring that nondesegregation costs are excluded from the State’s obligation.
By relying on Milliken I and Milliken II, the State is apparently arguing that the district court made an error of law. We see no basis for concluding that the district court applied rules of law that conflict with Milliken I and Milliken II, and are convinced that nothing in the Milliken cases in any way impinges upon the district court’s factual findings or analysis.
The determination of the proper formula to calculate costs avoided necessarily involves a distinctly fact-bound inquiry, and, indeed, the district court here made detailed findings of fact. Factual findings are not overturned unless clearly erroneous, Fed.R.Civ.P. 52(a), and the State makes no effort to demonstrate that the district court clearly erred.
In analyzing the cost avoidance issue, we are convinced of the necessity of distinguishing between fixed and variable costs. We therefore conclude that the district court did not err in rejecting a formula that did not incorporate that distinction nor in accepting a formula that properly relied on that distinction. As time goes on, and the desegregation plan is further implemented, the district court is free to consider further arguments that the application of a different formula to costs avoided is warranted.
For the foregoing reasons, we affirm the district court’s order on the cost avoidance issue.
V.
[5] The State next argues that the district court exceeded its authority in approving an increase of $8,231,565 in Central High School’s construction budget. Jenkins v. Missouri, No. 77–0420–CV–W–4 (W.D.Mo. Apr. 20, 1989). The district court’s November 12, 1986, order had approved a budget for capital facilities in magnet schools, including $15,243,050 for Central High School. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at Attachment B (W.D.Mo. Nov. 12, 1986). The April 1989 order increased Central’s budget to $23,474,615, and quoted language in the November 1986 order which stated “that the budget ‘consists of studied estimates which would be adjusted as actual costs are ascertained.’ ” Jenkins, slip op. at 3 (April 20, 1989) (quoting Jenkins, slip op. at 4, 6 (Nov. 12, 1986)).
The district court in its April 20, 1989 order found: 1) that the location of Central in the predominantly black central corridor area of Kansas City made its desegregation a challenge; 2) that alterations in and additions to the planned athletic facilities, which include an olympic-size pool, indoor running track, and a gymnastics facility, caused the budget for such facilities to exceed preliminary estimates; 3) that the expanded athletic facilities and the space allocation of 220 square feet per student are necessary to implement the Computers Unlimited and Classical Greek magnet themes and to attract non-minority students; 4) that the planned Central facilities are more extensive than any other high school in the Kansas City area and that such facilities are necessary to attract non-minority suburban students to the inner city; 5) that the original budget omitted costs for architects and engineers, advertising, soil surveys and testing, furniture and construction contingencies; 6) that the original budget assumed a net space to gross space efficiency ratio of 85 percent, while the new budget assumes a 72 percent ratio.7 Jenkins, slip op. at 1–8 (April 20, 1989).
The district court stated that the State did not contest KCMSD’s motion for approval of a site acquisition and preparation budget or KCMSD’s motion for a $1,739,077 increase in Central’s equipment budget. Id. at 9–10.
*482 The district court approved the Central High construction, site acquisition and preparation, and equipment budgets, id. at 10–11, but rejected the planned installation of a 10–meter diving platform, id. at 5. The court held that costs associated with the construction and site acquisition and preparation budgets approved in its order shall be allocated equally between the State and KCMSD, with joint and several liability. Id. at 11. The court also held that the costs associated with the equipment budget shall be allocated 75 percent to the State and 25 percent to KCMSD, with joint and several liability. Id.
The State argues that the district court erred in approving the overrun in Central’s construction and equipment budgets because KCMSD failed to prove or even plead the changed circumstances necessary to justify modifying an existing injunction. The State contends that the district court erred by failing to require such proof. The State further argues that the district court erred in modifying its November 1986 order to impose joint and several liability on the State for additional

amounts approved by the district court to construct and equip Central. The State contends that KCMSD should fully fund the budget increases because the Central cost overrun resulted either from errors by KCMSD in formulating the original estimate or from plans to enhance Central beyond what is necessary to achieve desegregation.
The State asserts that KCMSD unjustifiably expanded Central’s plans after the district court approved the original budget estimate instead of attempting to adjust the plans to conform to the budget. It also contends KCMSD did not inform the district court of the planned increase in Central’s facility and budget for 18 months in an attempt to “maneuver” the district court into acceding to its wishes.
We are not persuaded by the State’s argument that the district court exceeded its authority in modifying injunctive relief. We have held that a federal court has “inherent jurisdiction in the exercise of its equitable discretion and subject to appropriate appellate review to vacate or modify its injunctions.” Booker v. Special School Dist. No. 1, 585 F.2d 347, 352 (8th Cir.1978), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979). School desegregation plans are particularly likely to need adjustment. As the Supreme Court has observed regarding such cases: “[E]quity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Milliken II, 433 U.S. at 288, 97 S.Ct. at 2761 (quoting Brown v. Board of Educ., 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955)). The Fifth Circuit recently cited with approval a treatise that stated: “ ‘[A] court must continually be willing to redraft the order at the request of the party who obtained equitable relief in order to insure that the decree accomplishes its intended result.’ ” United States v. Lawrence County School Dist., 799 F.2d 1031, 1046 (5th Cir.1986) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2961, at 599 (1973)).
We have said that the basic responsibility for determining whether and to what extent an injunction should be modified “rests primarily on the shoulders of the district court that issued the injunction in the first place.” Booker, 585 F.2d at 353. Based on the foregoing authorities, we conclude that the district court had the authority to modify its earlier injunctive order.
The district court correctly recognized that the November 1986 budget consisted of studied estimates to be adjusted as actual costs were ascertained. The State’s argument essentially seeks to require KCMSD to construct the new Central High for the amount of the original estimate plus a contingency overrun and engineering and architectural fees totaling approximately $3.3 million. The April 1989 order establishes that the district court carefully considered the extensive evidence regarding the design process for Central, including the athletic facilities, the classical Greek and computer magnet programs, and the size and space requirements for the school. The court’s analysis particularly focused on the attractiveness of Central’s facilities to non-minority students. The district *483 court cited the removal of certain athletic, art and music facilities from Central’s design plans and the efforts of the project management team to live within the original budget as factors indicating KCMSD’s efforts to reduce Central’s cost. Jenkins slip op. at 8–9 (April 20, 1989). The district court also pointed out that even a witness for the State conceded that the Central High concept was outstanding and could help achieve desegregation in the KCMSD. Id. at 9.
After carefully considering the evidence regarding space needs for the magnet programs and athletic facilities, the district court found that the space allocation of 220 square feet per student was justified and that the “magnet programs could not be successfully implemented in a lesser facility.” Id. at 8. While the original budget contained certain flaws, the district court found that the process used by KCMSD in the design of Central followed the procedures the State’s expert outlined as normally used by educators and architects in designing schools. Id. at 4. The district court therefore rejected the State’s claim that the design process was inappropriate. Id.
The State makes no argument that any of the district court’s findings are clearly erroneous. The State characterizes the district court’s findings as “policy judgments” and argues that its determinations should be subject to de novo review. We reject the State’s argument as wholly unpersuasive. Applying the standard of Bessemer City, 470 U.S. at 573–74, 105 S.Ct. at 1511, we are convinced that the district court did not clearly err in finding that the KCMSD’s design process was appropriate, that the additions to the planned athletic facilities were justified, that the allocated space of 220 square feet per student is necessary to implement the magnet themes and enhance the school’s attractiveness to non-minority students, and that the increased construction and equipment budgets are necessary to meet the design requirements.
The State’s final argument, concerning joint and several liability, is an argument with which we have already dealt in this decision. The State’s argument is particularly unpersuasive in view of the fact that the November 1986 order charged the State with joint and several liability for the costs of the capital improvements and new construction and made the State solely liable for a portion of the relief ordered. Jenkins, slip op. at 1, 5–6 (Nov. 12, 1986).

This court affirmed the November 1986 order following an appeal by the State. Jenkins II, 855 F.2d at 1308. The State did not appeal to this court the finding of joint and several liability for the capital facilities program that included Central. Joint and several liability for the construction costs of Central is thus the law of the case. See Liddell v. Missouri, 731 F.2d 1294, 1304–05 (8th Cir.1984) (en banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).
In sum, the district court’s November 1986 order expressly stated that the capital improvements budget was subject to adjustment as actual costs were ascertained. The district court based its April 1989 order on factual findings that the State does not allege to be clearly erroneous. We are convinced that the district court did not err in exercising its equitable power to modify the original cost estimates, and we therefore affirm its April 1989 order permitting an increase in the construction and equipment budgets for Central High School and allocating costs between the State and KCMSD with joint and several liability.
VI.
The last of the appeals before us8 is from the district court’s order disqualifying the attorneys for the Ronika Newton group, a group of black schoolchildren, and denying their motion to modify the long-range magnet school plan. Jenkins v. Missouri, *484 No. 77–0420–CV–W–4, slip op. at 10–11 (W.D.Mo. Sept. 11, 1989). The district court permitted the Newton group to file an amicus brief in which the group sought to eliminate the racial quota guidelines from the magnet plan’s admission standards. Jenkins, slip op. at 1, 8 (Sept. 11, 1989).
[6] The district court disqualified the Newton group’s counsel, Mark J. Bredemeier, Jerald L. Hill and Richard P. Hutchison, of the Landmark Legal Foundation, because they “previously represented and currently represent[ ] in this litigation interests adverse to the interest of movants.” Id. at 10. The Landmark attorneys were, and continue to be, counsel of record for amici curiae Icelean Clark and others in actions challenging the court-ordered property and income tax surcharges. Id. at 9–10. Landmark also represented intervenors Eleanor Graham and others when that group challenged the court-ordered property tax increases. Id. Landmark’s clients in this case, the Newton group members, are participants in the magnet school program, and as such are direct beneficiaries of the same court-ordered taxes that Landmark opposed in its representation of the Clark and Graham groups and continues to oppose by representing the Clark group today.
In reaching its decision to disqualify, the district court cited the ABA Model Code of Professional Responsibility EC 5–15 (1980) which states: “A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests.”9 Id. (quoted in Jenkins, slip op. at 10 (Sept. 11, 1989)). Rule 1.7 of the Missouri Supreme Court Rules of Professional Conduct (1986) (found at Missouri Rule 4) prohibits representation of a client if the representation “may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests....”
[7] We have, in attorney disqualification issues, stated that the district court bears responsibility for supervision of the members of its bar. Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 605 (8th Cir.1977) (citing Hull v. Celanese Corp., 513 F. 2d 568, 571 (2d Cir.1975)) (subsequent history omitted). See also Central Milk Producers Coop. v. Sentry Food Stores, Inc., 573 F.2d 988, 991–93 (8th Cir.1978); Black v. Missouri, 492 F.Supp. 848, 859 (W.D.Mo.1980). The district court’s action in this case is discretionary and will only be upset upon a showing of abuse of discretion. Fred Weber, Inc., 566 F.2d at 606. That discretion is particularly broad in class actions, and especially when, as in this case, there is ongoing litigation. Mendoza v. United States, 623 F.2d 1338, 1346 (9th Cir.1980) ( “class suit imposes special responsibilities upon the trial judge” because it carries “inherent dangers of conflict”), cert. denied, 450 U.S. 912, 101 S.Ct. 1351, 67 L.Ed.2d 336 (1981). See Fed.R.Civ.P. 23(d) (granting district court authority to make “appropriate orders” in class actions).
On behalf of the Newton group, Landmark argues that its appearance before the Supreme Court on the tax issue has not and will not have any effect on the magnet school plan or full funding of the desegregation plan. Landmark argues that neither the Clark nor the Graham group has ever contested the implementation of the desegregation plan, or that it should be fully funded, only the propriety of funding via court-imposed taxes. Landmark further argues that vague and general inconsistencies *485 giving rise to hypothetical conflicts do not justify disqualification.
We are unconvinced by these arguments. The district court made the following statements about the conflict arising from Landmark’s representation:

[The Newton group members’] desire to participate in the magnet school program evidences their interest in the successful implementation of the desegregation remedy, which includes the magnet school program. As a result, [the Newton group members] would benefit from the court-ordered income tax surcharge and property tax increase, which amici curiae Icelean Clark, et al, previously opposed and currently opposes through representation by [the Newton group’s] counsel. Thus, it is clear that amici curiae Icelean Clark, et al’s, interest in reversing the court-ordered taxes to fund the desegregation remedy is adverse to [the Newton group’s] interest in seeking greater access to magnet schools.
Jenkins, slip op. at 10 (Sept. 11, 1989).
[8] When this appeal was argued before us, Landmark had represented the Clark group before the Supreme Court on the tax issue,10 and was awaiting the Court’s decision. We also take judicial notice that Landmark continues to represent the Clark group in further litigation not only before the district court, but in this court. In representing the Clark group, Landmark’s efforts threatened the viability of the desegregation plan by challenging the plan’s funding.
Landmark’s representation of the Newton group while still counsel of record for the Clark group presented a genuine conflict of interest. The district court recognized this potential conflict and correctly disqualified Landmark from the Newton group’s motion.
Landmark also argues that no conflict of interest arises out of its prior representation of the Graham group because the district court dismissed the Graham group from this litigation after that group prevailed on its only claim. Landmark complains that the district court relied on a boilerplate allegation from the memorandum in support of the Graham group’s motion to intervene in the surcharge refund action and that the alleged conflict is irrelevant because those proceedings have ended.
We recognize, as did the district court, that the Graham group was no longer a party in the Jenkins litigation when Landmark began representing the Newton group. The district court did not base its disqualification on a conflict of interest arising out of Landmark’s prior representation of the Graham group and its present representation of the Newton group. The court only quoted statements Landmark made during the previous representation because the reasoning therein provided additional support for the court’s decision to prevent Landmark’s concurrent representation of the Newton and Clark groups. See Jenkins, slip op. at 10–11 (Sept. 11, 1989).
The district court relied specifically on an allegation in the Graham group’s motion for leave to intervene that stated: “All of the present parties clearly have interests adverse to those of Applicants: Plaintiffs [including the Ronika Newton group members], obviously, are the direct beneficiaries of the revenues generated by the income tax surcharge.” Id. at 10–11 (citing Graham group’s memorandum in support of motion to intervene at 3) (emphasis added by district court). The district court viewed this statement as an admission by Landmark that a conflict of interest exists between two parties when one party wishes to challenge the legitimacy of a court-ordered remedy and another party stands to benefit from the same remedy the first party is challenging. We find no error in the district court’s application of this reasoning to Landmark’s simultaneous representation of the Clark and Newton groups.
We also reject Landmark’s attempt to brand an allegation essential to the Graham group’s right to intervene as simply boilerplate. Such categorization is inappropriate in light of Fed.R.Civ.P. 11, which requires an attorney filing a pleading to *486 sign the pleading thereby certifying that “to the best of the signer’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact.” Id.
[9] Landmark argues that to the extent any conflict of interest arises by its representation of the Newton group, this conflict is ameliorated by the informed consent of that group’s members. See Rule 1.7 of the Missouri Supreme Court Rules of Professional Conduct. The Newton group members are minor schoolchildren, and as such, are not capable of giving fully informed consent. We observe that a trial court has a special obligation to see that minors are properly represented, United States v. Reilly, 385 F.2d 225, 228 (10th Cir.1967), because it assumes the ultimate responsibility for determinations made on behalf of children. Noe v. True, 507 F.2d 9, 12 (6th Cir.1974); Black v. State of Missouri, 492 F.Supp. 848, 869 (W.D.Mo. 1980). Thus, by disqualifying Landmark as the Newton group’s counsel, the district court properly discharged its special responsibility by deciding that conflicts of interest rendered Landmark an inappropriate advocate of the Newton group.

We find no abuse of discretion in the district court’s decision to disqualify Landmark. In Central Milk, we stated the general rule that “we encourage the district courts to strictly enforce the Code of Professional Responsibility.” 573 F.2d at 993. With that in mind, we affirm the district court’s decision to disqualify.
The Newton group argues that despite disqualification of counsel, the district court should, nonetheless, have considered the group’s motion to modify the long-range magnet school plan. We believe that the district court correctly denied the motion because the Newton group was acting through counsel, and counsel had been disqualified. We also point out that counsel had not filed a motion to intervene on behalf of the Newton group, although it is evident from their representation of other amici and interested parties that they were aware of this procedure. Finally, the Newton group concedes that its members have all been admitted to magnet schools since the filing of this action, Brief for Appellants at 5 n. 3, Jenkins v. Newton (8th Cir.1989) (No. 89–263) so it is likely their action would now be moot. See Carson v. Pierce, 719 F.2d 931, 933 (8th Cir.1983).
With regard to modifying the magnet school plan, this court affirmed the present version of the program. See Jenkins II, 855 F.2d at 1301–04. Certainly as time passes, the magnet school program will be subject to modification. Indeed, in the order now under appeal, the district court considered a motion by the Jenkins class to modify the magnet admissions policy and the racial quota that the district court established. The appellate briefs also inform us of other ongoing efforts to modify the magnet school racial guideline policy. We are satisfied that our best course at this time is to affirm the district court order of September 11, 1989, and leave further development of this issue for the future.
We affirm the orders of the district court of January 3, 1989, January 13, 1989, April 20, 1989, May 5, 1989, May 24, 1989, and September 11, 1989.

All Citations 931 F.2d 470, 67 Ed. Law Rep. 464

Footnotes

1

The State appeals district court orders of January 3, 1989; January 13, 1989; April 20, 1989; May 5, 1989; and

May 24, 1989. A group of KCMSD schoolchildren (the Ronika Newton group) appeal from an order dated

September 11, 1990.

2

Numerous other orders of the district court found joint and several liability with respect to particular aspects of the

remedial plan. See, e.g., Orders of: April 29, 1987, slip op. at 3; August 19, 1987, slip op. at 3–4; September 15,

1987, slip op. at 13; July 25, 1988, slip op. at 28; January 13, 1989, slip op. at 5; March 30, 1989, slip op. at 8;

April 4, 1989, slip op. at 3; April 12, 1989, slip op. at 7–8; April 20, 1989, slip op. at 11–12; May 5, 1989, slip op. at

4–5.

3

November 12, 1986, slip op. at 1; July 6, 1987, slip op. at 15; April 29, 1987, slip op. at 3; August 19, 1987, slip

op. at 3–4; September 15, 1987, slip op. at 14–15.

4

Two footnotes reiterated this holding:

We recognize that there may be some circumstances in which the district court could justiﬁably ﬁnd that

KCMSD did not have sufﬁcient resources to fully fund the apportionment we have afﬁrmed today of the

desegregative costs, and if it so ﬁnds, we do not preclude the district court from placing the remainder of the

burden on the State. It is our intent that KCMSD contribute its share, subject to these considerations.

855 F.2d at 1314 n. 18 (citations omitted).

While we have rejected the argument urged by a number of the amici and adopted by the dissent that under

this principle all costs should be borne by the State, the State does have an obligation to pay any required

sums which are beyond the capacity of the school district.

Id. at 1316 n. 21.

5

The State’s arguments are at best frivolous and represent another example of the verbal excess we have earlier

criticized. See Jenkins III, 890 F.2d at 68–69.

6

Cook, Swinney, Volker, Marlborough, Hartman elementary schools and Lincoln Academy.

7

The ratio of useable space (which excludes space for circulation, restrooms, mechanical equipment and janitor’s

closets) to total space is referred to as “efﬁciency.” A 75 percent efﬁciency ratio is usual for school buildings.

Jenkins, slip op. at 8 (April 20, 1989).

While we have rejected the argument urged by a number of the amici and adopted by the dissent that under this principle all costs should be borne by the State, the State does have an obligation to pay any required sums which are beyond the capacity of the school district. Id. at 1316 n. 21.

5

The State’s arguments are at best frivolous and represent another example of the verbal excess we have earlier

criticized. See Jenkins III, 890 F.2d at 68–69.

6

Cook, Swinney, Volker, Marlborough, Hartman elementary schools and Lincoln Academy.

7

The ratio of useable space (which excludes space for circulation, restrooms, mechanical equipment and janitor’s

closets) to total space is referred to as “efﬁciency.” A 75 percent efﬁciency ratio is usual for school buildings.

Jenkins, slip op. at 8 (April 20, 1989).

8

The State also appealed a November 15, 1988, order that awarded the Jenkins class fees under 42 U.S.C. §

1988 (1988) at “market rates” for paralegal workers and law clerks. Jenkins v. State of Missouri, No. 77–0420–

CV–W–4, slip op. at 6–9 (W.D.Mo. Nov. 15, 1988). The State withdrew this appeal after the Supreme Court

decided the issue in Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 2471–72, 105 L.Ed.2d 229 (1989).

9

The Newton group’s brief points out that the district court for the Western District of Missouri does not follow the

ABA Model Code of Professional Responsibility, which contains Ethical Consideration 5–15. Under Rule 2(D)(2)

of the Rules of the District Court for the Western District of Missouri (1983), the Western District follows whatever

rules of professional responsibility the Missouri Supreme Court adopts, and on August 7, 1985, the Missouri

Supreme court adopted the newer Model Rules of Professional Conduct. Missouri Rule 4. On this issue the Model

Rules are substantially similar to the Model Code. Model Rule 1.7 states: “A lawyer shall not represent a client if

the representation of that client will be directly adverse to another client ...” Model Rules of Professional Conduct

Rule 1.7 (1983); Missouri Rule 4 (Rule 1.7).

10

Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 1664 n. 19, 109 L.Ed.2d 31 (1990).

 
 931 F.2d 1273 United States Court of Appeals,
Eighth Circuit.
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, 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; Appellees, American Federation of Teachers, Local 691,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Gary M. Cunningham, Roger L. Tolliver, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education
of the State of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof.
No. 90-1534. |
Submitted Dec. 12, 1990. |
Decided April 29, 1991.
Synopsis After judgment was entered in favor of plaintiff class in school desegregation case, 593 F.Supp. 1485, plaintiffs filed motion for award of postjudgment interest. The United States District Court for the Western District of Missouri, Russell G. Clark, J., granted motion, 731 F.Supp. 1437, and appeal was taken. The Court of Appeals, John R. Gibson, Circuit Judge, held that plaintiff class was entitled to interest on its attorneys’ fees accruing from date court first determined that class was entitled to award of fees, rather than date court quantified fees.
Affirmed.
Lay, Chief Judge, filed concurring opinion.
Attorneys and Law Firms
*1274 Bart Matanic, Jefferson City, Mo., for appellants.
Russell E. Lovell II, Des Moines, Iowa, for appellees.
Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion
JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from an order of the district court1 holding that the Jenkins class is entitled to post-judgment interest on its attorneys’ fees accruing from the date when the court first determined that the class was entitled to an award of attorneys’ fees, rather than the date when the court quantified the fees. Jenkins v. Missouri, 731 F.Supp. 1437, 1440-41

(W.D.Mo.1990). The district court thus held that post-judgment interest should accrue from February 24, 1986, the date on which it determined entitlement to the fees. Id. at 1441. The State argues that the accrual should not begin until May 11, 1987, the date when the district court quantified the fees. We affirm the order of the district court.
This action for post-judgment interest on attorneys’ fees has its origins in the 1977 lawsuit that challenged segregation in the Kansas City, Missouri, School District. Arthur A. Benson, II, entered his appearance on behalf of the plaintiffs in March 1979, and the NAACP Legal Defense Fund entered as co-counsel in March 1982. Following a three-month bench trial, the district court in September 1984 held the State defendants and the KCMSD liable for intradistrict segregation. Jenkins v. Missouri, 593 F.Supp. 1485, 1505-06 (W.D.Mo.1984). In June 1985, after a two-week hearing on remedies, the district court entered judgment on the merits, ordering $87 million in capital improvements and operating programs. Jenkins v. Missouri, 639 F.Supp. 19, 43-44 (W.D.Mo.1985), aff’d as modified, 807 F.2d 657, 662 (8th Cir.1986) (en banc), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).
On February 5, 1986, the Jenkins class filed application for attorneys’ fees under The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988 (1988). On February 24, 1986, the district court found that “[c]learly under the law, counsel for plaintiffs are entitled to an award of attorney’s fees” and ordered the State to make an immediate partial payment of $200, 000 to Benson. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 1-2 (W.D.Mo. Feb. 24, 1986). The State did not appeal this award, and it made three payments, totalling $347,332.93, to Benson during the litigation of the fees dispute in district court. In May and July of 1987, the district court entered two separate orders directing the State to pay Benson a total additional amount of $1,381,897.44 in attorneys’ fees and expenses. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 16 (W.D.Mo. May 11, 1987); Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 2-3 (W.D.Mo. July 16, 1987). It also awarded the Legal Defense Fund $2,365,875.74 in fees and expenses. Jenkins, slip op. at 16 *1275 (May 11, 1987). This court and the Supreme Court affirmed the district court’s orders. Jenkins v. Missouri, 838 F.2d 260, 268 (8th Cir.1988), aff’d, 491 U.S. 274, 109 S.Ct. 2463, 2472, 105 L.Ed.2d 229 (1989).
In December 1989, the Jenkins class filed a motion for post-judgment interest. The district court found that Benson and the Legal Defense Fund were entitled to such interest from February 24, 1986, the date when it had first determined that the class was entitled to attorneys’ fees, rather than from May 11, 1987, the date when the court had quantified the fees. Jenkins, 731 F.Supp. at 1438-40. The district court also held that interest should accrue at a rate of 7.71 percent, the U.S. Treasury Bill rate on February 24, 1986. Id. at 1441. See also 28 U.S.C. § 1961(a) (1988) (prescribing application of Treasury Bill rate).
The parties here agree that the Jenkins class is entitled to post-judgment interest on its attorney fee award under 28 U.S.C. § 1961(a), which states:
Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment.
(Emphasis added).
The phrase “any money judgment” in section 1961(a) is construed as including a judgment awarding attorneys’ fees. R.W.T. v. Dalton, 712 F.2d 1225, 1234 (8th Cir.), cert. denied, 464 U.S. 1009, 104 S.Ct. 527, 78 L.Ed.2d 710 (1983); Spain v. Mountanos, 690 F.2d 742, 747-48 (9th Cir.1982). In Dalton, this court held that post-judgment interest on attorneys’ fees was mandatory under section 1961(a) and that denial of such interest constituted reversible error. 712 F.2d at 1234-35.
With the entitlement to post-judgment interest clear, the parties’ disagreement is confined to the meaning of the phrase “shall be calculated from the date of the entry of the judgment.” The State contends that the proper construction of this language establishes that the relevant date is when the fee award is quantified or “liquidated.” The Jenkins class contends that the relevant date is when the prevailing party becomes unconditionally entitled to fees, either because of a statutory right or because the court in its discretion has determined the party is entitled to attorneys’ fees.
The district court concluded that all of the relevant authority supported the plaintiffs’ position. 731 F.Supp. at 1438-40. After the district court issued its opinion, however, the Seventh Circuit decided Fleming v. County of Kane, 898 F.2d 553, 565 (7th Cir.1990), which awarded the plaintiff post-judgment interest on his attorneys’ fees from the date the fees were quantified. Id. at 565. The Fleming court did not explain why it selected the date of fee quantification rather than the date of fee entitlement,

and it is not clear whether the parties presented this issue. Fleming reversed the district court’s ruling that had awarded prejudgment interest on the attorney’s fees. The Fleming court explained: “Prior to the date the judgment on attorney’s fees was entered, plaintiff’s attorneys’ claim for unpaid attorney’s fees was unliquidated and, as such, not entitled to interest.” Id. The court then concluded that the “award of attorney’s fees was entered” on the date the fees were quantified. Id.
The Fleming result runs counter to the holdings of the Fifth Circuit in Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983) (per curiam), and the Federal Circuit in Mathis v. Spears, 857 F.2d 749, 760 (Fed.Cir.1988). The Copper Liquor court prescribed a two-part test to determine when attorneys’ fees should begin to accrue interest:
If a judgment is rendered that does not mention the right to attorneys’ fees, and the prevailing party is unconditionally entitled to such fees by statutory right, interest will accrue from the date of judgment. If, however, judgment is rendered without mention of attorneys’ fees, *1276 and the allowance of fees is within the discretion of the court, interest will accrue only from the date the court recognizes the right to such fees in a judgment.
Id. at 545. Under either part of the Copper Liquor test, interest accrues from the date that the party becomes unconditionally entitled to fees, even if those fees are not yet quantified. Id. The Mathis court followed Copper Liquor, stating that “[i]nterest on an attorney fee award ... runs from the date of the judgment establishing the right to the award, not the date of the judgment establishing its quantum.” 857 F.2d at 760. The Jenkins class contends that under Copper Liquor and Mathis, postjudgment interest should accrue from a date no later than February 24, 1986.2
The State argues that there is no need to apply Copper Liquor or Mathis because an Eighth Circuit case, Dalton, holds that post-judgment interest does not begin to accrue until the date when the fees are quantified.3 In Dalton, the district court granted summary judgment in favor of the plaintiffs on October 14, 1980. 712 F.2d at 1228. On March 30, 1982, it entered a final judgment awarding costs and fees to the plaintiffs. Id. Following the district court’s denial of post-judgment interest on the attorneys’ fees, this court reversed and held that post-judgment interest should accrue from the March 30, 1982, award of fees. Id. at 1234-35.
The State argues that Dalton stands for the proposition that post-judgment interest does not begin to accrue until the date when fees are quantified. We reject such a reading of Dalton, as did the district court. Jenkins, 731 F.Supp. at 1439. Dalton, simply did not address the issue presented here. In Dalton, the district court apparently established the plaintiffs’ right to fees on the same date as it quantified the fees. Id. The court therefore had no need to address the issue before us.
After considering the purposes underlying the award of post-judgment interest, we are convinced that Copper Liquor and Mathis establish the proper rule. In Dalton, we recognized the purposes that are furthered by the awarding of post-judgment interest on attorneys’ fees:
[A denial of post-judgment interest] would effectively reduce the judgment for attorneys’ fees and costs, because a certain sum of money paid at a certain time in the future is worth less than the same sum of money paid today. Failing to allow awards of attorneys’ fees to bear interest would give parties against whom such awards have been entered an artificial and undesirable incentive to appeal or otherwise delay payment.
Dalton, 712 F.2d at 1234-35. See also Mathis, 857 F.2d at 760 (“The provision for calculating interest from entry of judgment deters use of the appellate process by the judgment debtor solely as a means of prolonging its free use of money owed the judgment creditor”). The award of interest also serves the make-whole objective of fee awards in civil rights cases. Gates v. Collier, 616 F.2d 1268, 1275-76 (5th Cir.1980). See generally S.Rep. 94-1011, 94th Cong., 2d Sess. 2-5, reprinted in 1976 U.S. Code Cong. & Admin. News 5908, 5909-13 (discussing purposes of Civil Rights Attorney’s Fees Award Act of 1976). We also *1277 observe that if the accrual of post-judgment interest is delayed until fee awards are quantified and attorneys are thus not fully compensated for their successful efforts, they may be reluctant to take on complex and expensive litigation.
The State argues that until the fee award is liquidated, the party responsible for payment has no way to satisfy its obligation, and thus, no interest should accrue. We are not persuaded by this argument. The fee-paying party suffers no prejudice from any delay in quantifying the award because it has the use of the money in the interim and because the statutory interest rate is tied to the U.S. Treasury Bill rate. See 28 U.S.C. § 1961(a).
Several of the district courts that have considered the issue of when post-judgment interest begins to accrue on attorneys’ fees

have applied the same approach used in Copper Liquor and Mathis. See, e.g., Water Technologies Corp. v. Calco Ltd., 714 F.Supp. 899, 910 (N.D.Ill.1989); Procter & Gamble Co. v. Weyerhaeuser Co., 711 F.Supp. 904, 908 (N.D.Ill.1989); Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F.Supp. 509, 522-23 (S.D.N.Y.1984); Burston v. Commonwealth of Virginia, 595 F.Supp. 644, 652 (E.D.Va.1984). But see Griffin v. Ozark County, 688 F.Supp. 1372, 1377 (W.D.Mo.1988) (post-judgment interest on attorneys’ fees accrues from date of judgment quantifying fees); McCullough v. Cady, 640 F.Supp. 1012, 1028 (E.D.Mich.1986) (dictum suggesting that post-judgment interest properly accrues from date of judgment quantifying attorneys’ fees because the fee claim is unliquidated before that date).
Applying the second part of the Copper Liquor standard,4 which states that interest will accrue from “the date the court recognizes the right to such fees in a judgment,” we conclude that the Jenkins class is entitled to post-judgment interest on its attorneys’ fees accruing from the February 24, 1986, order declaring the class’s entitlement to those fees.
For the foregoing reasons, we affirm the judgment of the district court.

LAY, Chief Judge, concurring.
I concur in the award of post-judgment interest on the attorney’s fees beginning on February 24, 1986. I must, however, disagree with the studied effort used by the majority in recognizing that award. The majority opinion relies on Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir.1983) (en banc) (per curiam). This case is not germane to our discussion and does not address the issue at hand. In Copper Liquor, the Fifth Circuit discussed an attorney’s fee award under the Sherman Act, 15 U.S.C. § 1 (1988) and the Clayton Act, 15 U.S.C. § 15 (1988). Under the antitrust laws the attorney’s fee award was recognized as a matter of right under the applicable statutes. The interest on the award accrued from the date of the judgment because the prevailing party was unconditionally entitled to such fees by statute, even if the judgment did not mention the right to attorney’s fees. See Copper Liquor, 701 F.2d at 545. In the present case, we are dealing with an award of attorney’s fees under the Civil Rights Act, 42 U.S.C. § 1988 (1988). Under section 1988 attorney’s fees are awarded, not as a matter of right, but as a matter of discretion by the trial court. Id.; see White v. New Hampshire Dep’t of Employment Sec., 455 U.S. 445, 454, 102 S.Ct. 1162, 1167-68, 71 L.Ed.2d 325 (1982). The prevailing party is not entitled to post-judgment interest on an award for attorney’s fees unless the court specifically enters such a judgment.
This case is relatively simple. The statutory provision governing post-judgment interest is found in 28 U.S.C. § 1961(a) (1988), which states in part that “[s]uch interest shall be calculated from the date of the entry of the judgment.” In determining when the judgment is entered on an award of attorney’s fees, Rule 58 of the Federal Rules of Civil Procedure provides in part that “[e]very judgment shall be set forth on a separate document. A judgment *1278 is effective only when so set forth and when entered as provided in Rule 79(a).” Fed.R.Civ.P. 58. In the present case, the district court, on February 24, 1986, awarded a judgment under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988 (1988). At that time the district court ordered that “ ‘counsel for plaintiffs are entitled to an award of attorney’s fees’ and ordered the state to make an immediate partial payment” of $200,000 to attorney Arthur Benson. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 1-2 (W.D.Mo. Feb. 26, 1986). This clearly constituted a final judgment under Rule 58.
Post-judgment interest on the final judgment began to run on the total judgment from the date of the judgment awarding the attorney’s fees. The fact that the February 24 judgment contained only a partial sum for attorney’s fees is immaterial. The total sum is readily ascertainable by mathematical computation or other recognized standards.1 We need only look to Rule 58 and section 1961 to ascertain the date from which the post-judgment interest should run.2

All Citations 931 F.2d 1273, 111 A.L.R. Fed. 875, 67 Ed. Law Rep. 487

Footnotes

1

The Honorable RUSSELL G. CLARK, United States District Judge for the Western District of Missouri.

2

Although the Jenkins class sought and was awarded post-judgment interest from February 24, 1986, the class

maintains that under the ﬁrst prong of Copper Liquor it is entitled to interest accruing from the June 14, 1985,

judgment on the merits. See Jenkins v. Missouri, 639 F.Supp. 19 (W.D.Mo.1985), aff’d as modiﬁed, 807 F.2d 657

(8th Cir.1986) (en banc), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). As the Jenkins class

Footnotes

1

The Honorable RUSSELL G. CLARK, United States District Judge for the Western District of Missouri.

2

Although the Jenkins class sought and was awarded post-judgment interest from February 24, 1986, the class

maintains that under the ﬁrst prong of Copper Liquor it is entitled to interest accruing from the June 14, 1985,

judgment on the merits. See Jenkins v. Missouri, 639 F.Supp. 19 (W.D.Mo.1985), aff’d as modiﬁed, 807 F.2d 657

(8th Cir.1986) (en banc), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). As the Jenkins class

does not actually seek interest accruing from the June 14, 1985, judgment, we need not decide this issue.

3

The State, while relying primarily on Dalton, also argues that support for its argument can be found in Fleming;

Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3d Cir.1986); Institutionalized Juveniles v. Secretary of

Public Welfare, 758 F.2d 897, 927 (3d Cir.1985); Perkins v. Standard Oil Co., 487 F.2d 672, 675 (9th Cir.1973);

and Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 110 S.Ct. 1570, 1575-76, 108 L.Ed.2d 842

(1990). We agree that Fleming lends some support to the State’s position, but conclude that Sun Ship,

Institutionalized Juveniles, Perkins, and Bonjorno do not address the issue before us.

4

As the Jenkins class has not sought post-judgment interest accruing from the June 1985 judgment on the merits,

see footnote 2, we apply the second part of the Copper Liquor test.

1

As the Supreme Court has indicated, in an award for attorney’s fees under section 1988, there can be several

ﬁnal judgments. White, 455 U.S. at 453, 102 S.Ct. at 1167.

2

As pointed out in the majority opinion, the state urges that we should follow the Seventh Circuit decision in

Fleming v. County of Kane, 898 F.2d 553 (7th Cir.1990). In Fleming, the Seventh Circuit acknowledged that the

ﬁnal judgment did not occur until June 24, 1988. Id. at 565. Although the court recited that the district court had

rendered a memorandum opinion and order on April 12, 1988, and a minute order on June 23, 1988, I submit the

only reasonable conclusion is that the earlier opinions of the district court were not ﬁnal judgments under Rule 58.

Under the circumstances, the decision in Fleming is not supportive of any argument to the contrary. As the

Supreme Court has observed, “it may be unclear even to counsel which orders are and which are not ‘ﬁnal

judgments.’ ” White, 455 U.S. at 453, 102 S.Ct. at 1167. The purpose of Rule 58 was to obviate that confusion.

See Bankers Trust Co. v. Mallis, 435 U.S. 381, 386, 98 S.Ct. 1117, 1120-21, 55 L.Ed.2d 357 (1978).

 
 1991 WL 346392 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
The STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
May 28, 1991.
Attorneys and Law Firms
Arthur A. Benson, II, Benson & McKay, Kansas City, Mo., for plaintiffs.
Shirley W. Keeler, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., Allen R. Snyder, Pat Brannan, Hogan & Hartson, Washington, D.C., for defendant Kansas City, Missouri School District.
Michael Fields, Bart Matanic, Atty. General’s Office, Jefferson City, Mo., for defendant State of Missouri.
Doyle R. Pryor, Fred Wickham, Jolley, Wash, Hager & Gordon, Kansas City, Mo., for Intervenor American Federation of Teachers.
ORDER
RUSSELL G. CLARK, Senior District Judge.
*1 Pending before the Court is the motion of plaintiffs for approval of a budget for 1991–92 for the voluntary interdistrict transfer plan involving the Missouri City School District (“Missouri City”). The proposed budget is an extension without increase in cost of the budget agreed to by the parties for 1990–91 and approved by this Court. The budget for 1991–92 is reasonable and necessary for the continued implementation of the voluntary interdistrict transfer component of the plan for the desegregation of the School District of Kansas City, Missouri (“KCMSD”) and is approved.
The State of Missouri defendants are ordered in 1991–92: to fund Missouri City tuition costs of $5,000 per student for up to ten KCMSD students to attend school in 1991–92 in Missouri City, to pay to Missouri City the difference between Missouri City’s cost for a .2 full time equivalent counsellor and the cost of a full time counsellor, to pay to the KCMSD the reasonable cost of a .6 FTE home school coordinator, to pay Missouri City $8,000 for staff development, and to provide transportation for up to ten KCMSD transfer students under the terms and conditions currently in effect.
All Citations
Not Reported in F.Supp., 1991 WL 346392

 
 1991 WL 538841 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Southern Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE of Missouri, et al., Defendants.
No. 77–0420–CV–W–4. |
July 5, 1991.
ORDER
RUSSELL G. CLARK, District Judge.
*1 Before the Court is the KCMSD’s motion for approval of the desegregation plan for 1991–92. The KCMSD filed an amended motion and the State filed a response to the KCMSD’s motion and amended motion. The KCMSD filed a reply to the State’s response and filed a second motion for leave to amend its motion for approval of the desegregation plan for 1991– 92. On June 10, 1991 the Court held a hearing on disputed issues for the 1991–92 desegregation plan. Parties filed posthearing briefs on June 21, 1991.
The KCMSD moves this Court to enter an order approving its proposed desegregation plan for the 1991–92 school year. The KCMSD submits that it proposes only a modest one-year extension of its present desegregation programs with minimal necessary modifications. The proposal incorporates a number of adjustments some of which are based on enrollment driven formulas. In addition the KCMSD proposes two new initiatives and five magnet school program modifications based on the needs of magnet programs. The two new initiatives are a proposal to improve security at secondary schools and to lengthen the school day at four magnet schools. The KCMSD proposes to continue the basic educational components of the remedy previously approved by the Court.
The State’s position with regard to the proposed Year VII budget is that the Court should freeze all regular operating and desegregation programs at their current levels. The State also believes that no new programs should be approved for the KCMSD in light of the KCMSD’s severe budget crisis. The State suggests that if some programs require more funding in Year VII, while other programs require less, the increased funding for those programs can come from budget transfers from those programs which have been reduced from Year VI. The State submitted specific objections to the KCMSD’s proposed Year VII budget.
The KCMSD filed a reply to the State’s response. The KCMSD noted that it considered “freezing” all programs at current levels when it developed the Year VII desegregation plan and budget. However, the KCMSD submits that the Court should not adopt the State’s request for a freeze because it is not consistent with the purpose of the remedy. The KCMSD points out that the overall Year VII budget is an increase of approximately 3% over the 1990–91 approved budget.
The parties have agreed on the following components of the Year VII budget with the understandings stated. Components as to which there is no dispute are: reduced class size, full day kindergarten, extended day at traditional schools, summer school 1991, effective schools, base budgets, district communications, research and evaluation, interest expense, and the Westport computer technician.
Reduced Class Size On July 25, 1988 this Court approved the class size reduction component for 1988–89 through 1990–91. The KCMSD has

reviewed planned enrollments for 1991–92 and has determined how many teachers it will need to meet the Court-ordered maximum class sizes. The budget reflecting these calculations was based on the assumption that base as well as theme costs for the 1986–87 magnets will remain in the desegregation budget in 1990–91.
*2 The State responds that if increase in the reduced class size budget is enrollment driven and provided that the KCMSD hires only the number of teachers that are needed to meet the court-ordered maximum class sizes, the State has no objection to the Court’s continuation of this component. However, the State requests that the KCMSD file a report with the DMC by October 15, 1991 justifying the number of full-time equivalents funded under this component and listing actual enrollment in each school, teachers hired under this component and grade level for teachers hired.
The KCMSD responds that the type of detailed report requested by the State is best left to discussion among the parties and the DMC. The KCMSD believes it can work with the DMC and the parties to devise a report that will not be unduly burdensome and that can be delivered by a reasonably early date in the fall of 1991.
The KCMSD has presented a proposed method which it believes will more equitably allocate teacher costs between the operating and desegregation budgets. If such a method is approved, the budgetary estimate for reduced class size may have to be adjusted. The State reserves the right to contest such adjustments and the parties agree to brief this issue at the appropriate time.

1990–91 Budget $4,683,986

1991–92 Budget $5,627,985

KCMSD Obligation $5,627,985

Summer School 1992 On July 25, 1988 this Court approved a summer school program for the summers of 1989–91. Last year the parties agreed to modify the 1991 summer school program. The KCMSD proposes to offer the same summer school program in 1992. The proposed budget does not include transportation. A request for transportation will be filed later on an actual cost basis.
The State responds that the KCMSD should provide an estimate of its transportation costs in order to enable the State to comment on the proposed budget and asks that the Court require the KCMSD to present a complete budget to the Court.
The KCMSD states that it has no means of accurately discerning, until immediately before summer classes begin, the transportation related costs of the summer program. The KCMSD indicated that a very rough estimate of costs would be $610,281—the amount budgeted in 1991 for transportation costs. Therefore, the State reserves the right to contest transportation costs.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$2,310,967

$1,744,296 (excluding trans-

$436,075

1990–91 Budget

1991–92 Budget

$2,310,967

$1,744,296 (excluding transportation costs)

KCMSD Obligation $436,075

Full Day Kindergarten The KCMSD submits that full day kindergarten continues to be successful. The KCMSD requests a slightly increased level of funding based on increased enrollment for the 1991–92 school year.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$1,773,185

$1,837,094

$459,274

Extended Day at Traditional Schools *3 In 1988 this Court approved an extended day program in ten traditional elementary schools with a total budget of $600,000. This Court’s July 5, 1989 Order approved an extended day program for six schools for 1989–90. The KCMSD proposes that extended day should be continued at the six schools.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$453,000

$453,000

$113,250

1990–91 Budget $453,000

1991–92 Budget $453,000

KCMSD Obligation $113,250

Effective Schools In the July 5, 1988 Order the Court approved the funding requested by the KCMSD for the effective schools component for 1988–89 through 1990–91. The KCMSD proposes to continue the effective schools program under current DMC guidelines and procedures with the same level of funding per school. However, as a result of the anticipated change in the use of Southeast Annex, the budget requested is below that approved for 1990–91.
The State responds that there are no measures of reasonable progress in place which can evaluate the effectiveness of this program. Therefore, the KCMSD should be required to prove that increases in test scores are directly attributable to the effective schools funding. Dr. Marks requested one more year to show some kind of increase in test scores. Based on Dr. Marks’ promise that test scores will go up or he will not request continuation of the program, the State does not object to this program being continued for one additional year. The State urges the Court to require the development of a definite set of standards by which the efficacy of effective schools funding will be measured over the next year.
The KCMSD states that instituting a more elaborate “evaluative criteria” process would take time and administrative resources. The KCMSD believes it is more productive for this issue to proceed on an informal basis through the DMC rather than formalizing the process and creating new burdens for the program.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$7,350,000

$7,250,000

$1,812,500

Base Budgets For 1990–91 the Court approved desegregation funding for the base costs of seven new magnet schools. The KCMSD proposes that base costs of these schools continue to be funded in this way.
The State does not object to this part of the Year VII desegregation plan as long as the FTE’s hired are based on actual enrollments.
As with reduced class size, the KCMSD states that it is confident that working with the parties and the DMC, it can devise a simple report that responds to the State’s needs and deliver the report by an appropriate date in the fall.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$14,867,645

$13,308,424

$3,477,708

District Communications In its July 25, 1988 Order the Court approved a three-year budget for the District Communications office. The KCMSD proposes to continue this program in Year VII.
*4 The KCMSD resubmitted a proposal in which it agreed not to use desegregation funds to print an annual report. In addition the KCMSD agreed to freeze this budget at its 1990–91 level.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$31,125

$31,125

$7,781

Interest Expense In its July 25, 1988 Order the Court found that the interest expense on the KCMSD’s original bond issue for capital improvement costs was a desegregation expense. Therefore the KCMSD has treated these expenses as part of its annual desegregation budgets and proposes to continue to do so in 1991–92.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$788,068

$593,503

$593,503

Research and Evaluation In its July 25, 1988 order the Court approved the purchase of computer equipment for KCMSD research, evaluation and testing department. The Court also approved a repair and maintenance contract for such equipment in 1989–90 and 1990–91.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$5,414

$5,060

$1,265

Westport Computer Technician

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$65,113

$16,278

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$65,113

$16,278

The total stipulated Year VII budget is $30,915,600. The KCMSD’s obligation is $12,545,619.
The components of the Year VII budget which are disputed and which were the subject of the hearing are: early childhood education, 1986–87 magnets, security, lengthened school day, Central High School coaches, Montessori equipment, TTAP for paraprofessionals, resource teachers and home-school coordinator for J.A. Rogers, and reconsideration of computers for Richardson and Banneker schools. Components of the budget which were not discussed at the hearing but which are disputed are: AAA Achievement, recruitment aide and five of six 1986–87 magnet schools.
Early Childhood Education Development Program In its July 25, 1988 Order this Court approved the Early Childhood Education Development program requested by the KCMSD with several modifications. The KCMSD and State have jointly developed the Early Childhood program for 1991– 92. However, the State has not agreed to an expansion of the program. The KCMSD proposes to offer the program to an additional 400 students next year. The KCMSD intends to locate the classrooms for this expansion at Pershing School. The program will provide screening for 4,464 children ages three to four; instructional services to 1,400 children in early learning center classrooms and parent education services to 5,000 families.
The State objects to the KCMSD’s effort to add classrooms and teachers in light of the KCMSD’s current budget crisis. Additional classrooms and teachers would add administrative expenses. In addition, the State points out that the budget request is only part of the funding requested by the KCMSD because staging costs have not been included. Staging costs would be approximately 1.1 million making the total increase 2.3 million and would bring the total cost of the early childhood program to approximately 5.9 million. The State asserts that the KCMSD should not attempt to provide expanded programs at this point.
*5 The KCMSD replies that the increase requested is an enrollment driven expansion and is an ongoing obligation on the part of the State to remedy years of State-imposed segregation. The evidence presented at the hearing demonstrated that the Early Childhood program is valuable and successful in enhancing the achievement of developmentally delayed children. The State has also objected because of the cost of adding 20 teachers.
The KCMSD notes that to the extent the State objects to the costs of staging the expanded program at Pershing school, these matters will be fully argued through the briefing process on this matter and that particular issue is still before the DMC. The evidence at the hearing supported the need for an expansion in the Early Childhood program to accommodate the enrollment demand. Therefore the Court will approve the District’s proposal to expand the Early Childhood program.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$3,598,491

$4,835,690

$1,208,923

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$3,598,491

$4,835,690

$1,208,923

Lincoln College Preparatory Teachers (1986–87 Magnet Schools) The KCMSD states the LCPA is a successful magnet school which includes an International Baccalaureate program. KCMSD presented evidence which shows that to maintain and improve Lincoln’s success, five additional teachers are necessary to teach the academically rigorous courses and Advanced Placement courses. The DMC took no exception to this proposal “provided that meaningful increases in the admissions standards are instituted at Lincoln.” Dr. Henley stated in her testimony that such an increase would be adopted for fall of 1992. The KCMSD submits that it currently does not have enough teachers to teach the intensive IB and AP classes, thus teachers must use a planning period to teach these classes. The KCMSD proposes the addition of two resource teachers to support the IB program. These teachers would provide academic guidance, counseling and mentoring to prepare students for the IB program and AP classes.
The State asserts that the mentoring teachers will serve to accommodate the increased admissions standards in serving students who are having academic difficulties. The State feels that the KCMSD should consider whether those students should be demitted to enroll at other schools. Since Lincoln College Prep is designed to be a school for high achievers, there should not be a need for the proposed remedial help that the KCMSD is requesting. The State adds that the sole reason for adding teachers is to give currently employed teachers planning time, which the State considers to be an insufficient reason at this time of budget crisis.
The cost of adding five teachers is $233,017 and is included in the proposed budget for 1986–87 magnet schools.
Security The KCMSD presented evidence that additional security is necessary to school safety and desegregative attractiveness. Captain Robert Livingston stated that there had been a 34% increase in personal security-related incidents and the KCMSD proposal is designed to address such incidents. The KCMSD proposes to add twenty-four site-based officers and four patrol officers. The proposed increase in school-based security officers would bring the average number of security officers up to four officers at the high school level and two officers at the middle school level. The goal is to deter personal security incidents by increasing security staff visibility and providing more comprehensive coverage of each school facility.
*6 The KCMSD also proposes a pilot identification card system for Southeast High School which is designed to allow staff and administrators to quickly identify individuals involved in an incident to determine whether they belong in the facility. In addition, the KCMSD proposes hand-held metal detectors to provide for a quick and unintrusive weapon search which will deter students from carrying weapons into the school buildings.
The KCMSD has proposed a pilot closed-circuit TV system for Southwest High School. The CCTV system is designed to allow security personnel to more effectively monitor the building and promptly deploy personnel to potential security incidents as they develop. The KCMSD anticipates that these pilot programs will be more cost-effective than adding additional security guards beyond those currently proposed by the KCMSD.
The State asserts that there was no showing that the KCMSD’s security proposal is directed at any particular security problem which is related to prior segregation. The State emphasizes that the security measures proposed by the KCMSD are not vandal-proof and Mr. Livingston, witness for the KCMSD, admitted that the KCMSD had not considered whether it could possibly close certain entrances and exits to alleviate the need for additional security. Nor has the KCMSD pursued any arrangement with the Kansas City, Missouri Police Department to provide for further security needs. The State submits that, in this time of budgeting crisis, expanded and expensive pilot security programs which are of speculative value, should not be approved.
The Court will approve the District’s security proposal. However, the Court notes that the obligation to provide security is the

primary responsibility of the Kansas City, Missouri Police Department and the District is encouraged to request the Police Department to fulfill its obligation.

1990–91 Budget N/A

1991–92 Budget $1,003,345

KCMSD Obligation $250,836

Lengthened School Day at East, Southeast, Central and Northeast Middle Schools The KCMSD proposes to lengthen the school day at four magnet schools to make the themes more educationally effective and desegregatively attractive. The KCMSD presented evidence that it was difficult to fit the required state, magnet theme and general elective curriculum classes into the standard seven-day period. In addition, lengthening the school day will allow students to take traditional secondary electives such as advanced courses in music, typing and ROTC.
The State objects to lengthening the school day because of additional administrative costs and lack of a demonstrable interest in the proposal. This proposal would add 24 new teachers to the KCMSD for which the KCMSD has no plan to pay its share of the additional cost of this proposal. Furthermore, the State asserts that with more careful scheduling, students could take all of the courses needed to complete a program in a seven period day. The State argues that no showing was made that this expensive adjustment is necessary.
*7 The Court will approve the District’s request to lengthen the school day at East, Southeast, Central and Northeast Middle schools.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

N/A

$929,728

$232,432

Central High School Coaches The KCMSD requests Court approval for additional coaches at Central High School, beyond those funded through the

operating budget at other schools. The KCMSD submits that additional coaches are essential to implementing the Classical Greek Magnet theme at Central. The KCMSD states that it will not ordinarily employ a coach for a team sport based upon the request of a single or a few students; however, for those sports which require only a single participant, the KCMSD will critically evaluate the need for providing that student with a coach. The KCMSD specifically requests an off-season track and field coach.
The State asserts that there are substantial numbers of personnel already directed at teaching athletics at Central High School and they should be sufficient to provide any coaching that is needed. The State adds that it seems particularly inappropriate for the KCMSD to assert a demand for additional coaches unless there is a substantial demand demonstrated by the KCMSD from a significant number of students who are interested in a particular activity.
The Court will deny the District’s proposal for Central High School Coaches. However, the District may submit separate motions to the Court, upon a showing of need and demand, requesting coaches for specific sports.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

N/A

$213,105

$53,276

Montessori Equipment The KCMSD presented evidence that it is necessary to teach six new classes that will be opening at Faxon and Harold Holliday Montessori magnets this fall. The KCMSD considers the Faxon and Holliday magnets to be immensely successful magnet programs that consistently meet the desegregation goals of the LRMP. Both schools are meeting the requirements for certification by the Association Montessori Internationale, the only internationally recognized American certification.
Montessori schools rely on special equipment instead of traditional textbooks. The equipment requested is necessary to implement the magnet theme in the six additional classrooms that open next year. All of the equipment requested is also required to meet the AMI accreditation standard. AMI certification is helpful in attracting children from private schools.
The Court will approve the District’s proposal for Montessori equipment.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

N/A

$150,000

$37,500

1990–91 Budget

1991–92 Budget

KCMSD Obligation

N/A

$150,000

$37,500

Tuition Assistance for Paraprofessionals (TAP) The KCMSD and AFT submitted evidence that the TAP program will help certify 30 qualified paraprofessionals, with a demonstrated commitment to the KCMSD, to teach in the District in accordance with the goals of the LRMP. The KCMSD and AFT suggest that there are qualified full-time paraprofessionals in the District who could become certified full-time teachers. Without tuition assistance, these individuals would find it difficult, if not impossible, to obtain a Missouri teaching certificate. The KCMSD states that enabling these individuals to become certified to teach will reduce the turnover rate within the District.
*8 The State responds that the KCMSD proposes a cost of $63,000 for this program and that in addition to adding costs for which the KCMSD has no funds available, this new program proposal does not appear to lead to obtaining high quality teachers that the Court’s salary increase of July 23, 1990 was directed to accomplish. The State objects to the low grade point average required for the TTAP. While the State acknowledges that this proposal could be worthwhile in a district with funds to spare, it is not a program which is necessary. Clearly, the State submits, if this were an operating budget program, it would be a candidate for budget cutting.
The Court will deny the District’s request for Tuition Assistance for Paraprofessionals based on the reasons set forth by the State.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

N/A

$63,000

$15,750

J.A. Rogers Academy of Liberal Arts & Sciences The KCMSD states that in order to support the liberal arts and sciences middle school magnet theme at J.A. Rogers Academy, it has proposed the addition of two resource teachers to teach Philosophy and Geography. These two positions were identified in the planning process by the school’s task force as necessary to fully implement the magnet theme. The KCMSD also proposes the continuation of the home school coordinator to provide academic support to students. The KCMSD states that the coordinator is important to provide students with extra academic support. The coordinator also serves as a liaison between students’ families and the school to ensure that their personal, social and monetary needs are not interfering with the academic rigors of the program.
The State asserts that regular teachers could perform all of the functions of the proposed resource teachers, especially in

helping students with their thesis. Regarding the home school coordinator, the State emphasizes that this position is designed for a social worker, not an academic teacher. The State maintains that the KCMSD should be cutting nonacademic personnel, rather than seeking to increase them.
The Court will approve the District’s request for two resource teachers and continuation of the home-school coordinator.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

Teachers:

N/A

$97,737

$24,434

Home–School Coordinator:

$18,150

$18,150

$ 4,538

Banneker and Richardson Computer Equipment The KCMSD submits that plaintiff’s request for computer equipment at Banneker and Richardson computer magnet elementary schools is critical to implementation of the computer theme and to maintaining the desegregative attractiveness of these programs. Thus, the KCMSD supports plaintiff’s motion to alter or amend this Court’s order of May 30, 1991 denying plaintiff’s request for additional equipment. The KCMSD agrees with plaintiffs that the request is necessary to equip six

additional classrooms. Also plaintiff’s proposal for repair and maintenance funds are claimed to be critical to successful implementation of the magnet theme at Richardson. Plaintiffs request additional computers in the same amounts and configurations as the State agreed to last year.
*9 The State notes that this proposal would cost $648,000 and maintains that there was no showing that additional computer equipment is absolutely necessary.
This request is before the Court on a motion to reconsider. The Court will reconsider its order and approve the software requests at Banneker and the repair and maintenance and software requests at Richardson.

Banneker Software

Total

$160,120

$290,120

Richardson Repair and Maintenance and Software

$130,000

1986–87 Magnets The KCMSD indicates that the State has persisted in its argument that the base costs of Lincoln, Swinney, Volker, Cook, Marlborough and Hartman should be carried by the KCMSD operating budget and not the desegregation budget. The KCMSD submits that the Deloitte & Touche report did not conclude that the KCMSD operating budget has millions of dollars available to fund base costs of the 1986–87 magnets. As in Year VI, the KCMSD asserts that the full costs of these magnet schools should be approved as desegregation costs in Year VII with base costs to be a 100% KCMSD obligation and the theme and other desegregation costs allocated 75% to the State and 25% to the KCMSD, with joint and several liability.
The State objects to permitting the KCMSD to continue to show the base costs of these schools as a desegregation obligation.

The KCMSD admits that this Court’s orders of October 18, 1989, November 2, 1989 and January 23, 1990 indicated that the base costs of these schools should be borne by the operating budget. However those orders were all stayed by the Court on February 1, 1990 pending a study of the KCMSD operating budget. The study did not indicate that the KCMSD has resources available from its operating budget to support the base budgets. The KCMSD suggests that the Court leave the stay in place and permit the costs to be carried in the desegregation budget, at least pending resolution of the operating budget funding issue.
The Court will approve the District’s proposal for the 1986–87 magnets.

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$15,694,833

$14,920,610

$9,443,399

AAA Achievement On July 25, 1988 this Court approved the AAA component requested by the KCMSD for 1988–89 through 1990–91 in order for the KCMSD to be able to provide sufficient library, counseling, art, music and physical education services to attain a AAA rating. For 1991–92 the KCMSD has calculated its AAA requirements according to the same formula used in the past.
The State asserts that the KCMSD ought to bear the full cost of maintenance of AAA status as an operating expense. The State maintains that it has fulfilled its initial obligations to fund the attainment of AAA status and has funded maintenance as well. Thus, the State believes that it is appropriate to shift fiscal responsibility for maintenance of AAA back to the KCMSD entirely as an operating expense. Alternatively the State suggests that this Court shift the allocation to the KCMSD as a 100% desegregation liability. The State particularly objects to the KCMSD using desegregation funds to maintain certain libraries in excess of AAA standards. The State submits that in no event should it be required to pay more than $1,479,100 which is the appropriate cost for library maintenance.
*10 In its reply the KCMSD notes that this Court has previously rejected the KCMSD’s argument. The KCMSD also disagrees with the State’s position that the AAA budget devoted to library resources is too high because this Court has previously approved AAA budgets built exactly the same way.
The State notes that the KCMSD stipulated that the count of some materials in its libraries is in excess of the minimum requirements for AAA, due partly to the use of AAA maintenance funds. The State’s position is that AAA maintenance funds should not be used to exceed the minimum requirements for AAA libraries. AAA maintenance funds should not be used to allow the KCMSD to exceed the AAA library standards. Thus, the State argues that there is no basis to require more than the cost of reaching the minimum requirements for AAA libraries with any desegregation funds.
The Court agrees that the State should not be required to assist the District in exceeding AAA requirements for libraries. Therefore, the Court will approve $1,479,100 for library resources. The proposed budget for 1991–92 is as follows:

Schools:

1990–91 Budget

1991–92 Budget

KCMSD Obligation

$4,611,139

$4,613,310

$1,153,328

Library Resources:

1990–91 Budget $1,958,250

1991–92 Budget $2,007,794

KCMSD Obligation 2,007,794

Total proposed:

$6,569,389

$6,621,104

$3,161,122

Total proposed:

$6,569,389

$6,621,104

$3,161,122

The Total approved for AAA status is $6,092,410 and the KCMSD’s obligation is $2,629,428.
Recruitment Aide Plaintiffs have requested a magnet recruiting aide, a proposal which the KCMSD supports. This position would relieve recruiters of clerical tasks which would enable them to spend more time in direct contact with potential applicants and their parents. The KCMSD asserts that magnet school recruiting is one of the most critical functions if the KCMSD is to be desegregated. The State asserts that this is yet one more administrative position for which the KCMSD will not be able to pay its share of the cost.
Plaintiff’s motion to reconsider plaintiffs’ request for a recruitment aide will be denied.
In addition, the Court will add to the Year VII desegregation budget the seventeen resource teachers who the Court finds are academic personnel and who were cut as a result of the new administration’s reorganization plan for the operating budget. The cost for the resource teachers is $763,657.
The total Year VII budget on disputed issues is $29,101,447. The total Year VII KCMSD obligation is $14,094,934. The total Year VII budget is $60,017,047. The KCMSD obligation is $26,640,553. The State’s obligation is $33,376,494.
Accordingly it is hereby
ORDERED that this Court approves the stipulated Year VII budget items; and it is further
ORDERED that the KCMSD’s proposal for the Early Childhood Education Development Program is granted; and it is further
ORDERED that the KCMSD’s proposal to add five teachers at the Lincoln College Preparatory Academy is granted; and it is further
*11 ORDERED that the KCMSD’s security proposal is granted; and it is further
ORDERED that the KCMSD’s lengthened school day proposal at East, Southeast, Central and Northeast Middle schools is granted; and it is further
ORDERED that the KCMSD’s Central High School coaches proposal is denied; and it is further
ORDERED that the KCMSD’s Montessori equipment proposal is granted; and it is further
ORDERED that the KCMSD’s Tuition Assistance for Paraprofessionals proposal is denied; and it is further
ORDERED that the KCMSD’s J.A. Rogers Academy of Liberal Arts and Sciences proposal to add two teachers and continue the home school coordinator is granted; and it is further
ORDERED that plaintiff’s request for reconsideration of the Banneker and Richardson computer equipment proposal is granted as to software and repair and maintenance; and it is further
ORDERED that the KCMSD’s proposal for 1986–87 magnets is granted; and it is further
ORDERED that the KCMSD’s proposal for AAA Achievement is granted with the exception that the State is not required to assist the KCMSD in exceeding AAA requirements for libraries; and it is further

ORDERED that plaintiff’s request for reconsideration of the Recruitment Aide is denied; and it is further ORDERED that the seventeen resource teachers who were cut from the operating budget as a result of administrative reorganization are added to the Year VII desegregation budget.
All Citations Not Reported in F.Supp., 1991 WL 538841

 
 942 F.2d 487 United States Court of Appeals,
Eighth Circuit.
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, 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; Appellees, American Federation of Teachers, Local 691, Appellee,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri;
Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education Roseann Bentley Dr. Dan Blackwell Rev. Raymond McCallister, Jr. Susan D.
Finke Thomas R. Davis (Presiding) Cynthia B. Thompson Gary M. Cunningham Members of the Missouri State Board of Education Robert E. Bartman, Commissioner of Education of the State
of Missouri, Appellants, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees.
No. 90–2314. |
Submitted June 25, 1991. |
Decided Aug. 14, 1991.
Synopsis In school desegregation case, the United States District Court for the Western District of Missouri, Russell G. Clark, J., approved contingency plan that temporarily modified a magnet school admissions policy which had required that new magnet schools open with a student population of 60% minority and 40% nonminority. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) expert testimony on phenomenon of “tipping” did not have to be given preclusive effect even though not opposed, and (2) district court did not abuse its discretion in adopting the contingency plan when it became evident that if a 60%/40% goal were adhered to not all minority students could be placed in middle or high schools for the school year, rather than adopting the State’s proposed alternatives of “demagnetizing” certain schools or creating traditional school annexes at existing magnet schools for students who could not be served consistently with the 60%/40% guidelines.
Affirmed.
Attorneys and Law Firms
*488 Michael Fields, Jefferson City, Mo., argued, for appellant; John W. Simon and Bart A. Matanic, Jefferson City, Mo., on the brief.
Arthur Benson, Kansas City, Mo., argued, for appellee; Theodore M. Shaw, Los Angeles, Cal. and Doyle R. Pryor of Kansas City, Mo., on the brief.
Before McMILLIAN and JOHN R. GIBSON, and Circuit Judges, HEANEY, Senior Circuit Judge.
Opinion
JOHN R. GIBSON, Circuit Judge.

Another appeal from the Kansas City, Missouri, School District desegregation remedy is now before us. The State appeals from a district court1 order approving a contingency plan that modifies the magnet school admissions policy for the 1990–91 school year. The contingency plan temporarily allows deviation from the original Long–Range Magnet School Plan, which required that new magnet schools open with a student population that is 60% minority and 40% non-minority. The State argues that the district court erred or abused its discretion in adopting the contingency plan and in rejecting the State’s two alternatives to the contingency plan. The State also argues that the contingency plan will result in the reestablishment of racially identifiable schools, and thus, the court cannot require funding of certain components of the remedial plan. The State’s *489 arguments lack merit, and we affirm the district court order.
On June 14, 1985, the district court entered its first order for the desegregation of the Kansas City, Missouri, School District. Jenkins v. Missouri, 639 F.Supp. 19 (W.D.Mo.1985), aff’d as modified, 807 F.2d 657 (8th Cir.1986) (en banc), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). An important part of the district court remedy included the implementation of a magnet school program. Id. at 34–35. The KCMSD prepared and presented its Long–Range Magnet School Plan, which the district court approved on November 12, 1986. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 4 (W.D.Mo. Nov. 12, 1986).
The Long–Range Magnet School Plan provided that all of the middle and high schools in the KCMSD become magnet schools in the 1990–91 school year. The Plan required that the district’s new magnet schools open with a 60% minority and 40% non-minority student population. The Plan also required that existing schools that are converted to magnet schools reduce their minority percentage by 2% per year until the schools reach the 60%/40% goal.
As the 1990–91 school year approached, it became evident that the 60%/40% goal would not be reached and that if the goal were adhered to, all minority students could not be placed in the middle and high schools for the school year. KCMSD proposed a contingency plan providing for a temporary deviation from the 60%/40% racial admissions guideline. The State objected to the KCMSD’s contingency plan, arguing that the plan would lead to the reestablishment of racially segregated schools. The State suggested that instead of adopting the contingency plan proposed by the KCMSD, the KCMSD should either convert the failing magnet schools back to traditional schools to accommodate students who could not get into magnet schools without upsetting the racial guideline, or open traditional school annexes at the magnet schools for such students. Although the district court stated that it viewed the 60%/40% guideline as a steadfast magnet school admissions requirement, it adopted the contingency plan as temporarily necessary under the circumstances and rejected the alternatives proposed by the State. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 4 (W.D.Mo. July 3, 1990). The State appeals, arguing that the district court erred or abused its discretion in: (1) adopting the contingency plan because the plan will lead to the reestablishment of racially identifiable schools; (2) failing to accept its alternatives to the contingency plan; and (3) continuing to hold the State liable for the funding of remedial components in these circumstances.
Before we address the merits of the State’s arguments, we note that we view the district court order in the context of the court crafting and managing a remedy for the failure of both the KCMSD and the State to eliminate vestiges of the dual school system lingering in the KCMSD. We need not, as we deal with each chapter of this ongoing and thoroughly litigated remedy, recite all of the details as to what has gone on before, but those who are interested may refer to Jenkins v. Missouri, 807 F.2d 657, 682–686 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987), Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed. 2d 31 (1990), Jenkins v. Missouri, 890 F.2d 65 (8th Cir.1989) (Jenkins III ), and Jenkins v. Missouri, 931 F.2d 470 (8th Cir. 1991) (Jenkins IV ).
I.
The State first argues that the district court abused its discretion or otherwise erred in failing to consider, credit, or properly weigh evidence that the adoption of the contingency plan would lead to the reestablishment of racially identifiable schools.
[1] The district court has broad discretion over the implementation of its remedial orders. As we stated in Jenkins IV, “a federal court has ‘inherent jurisdiction in *490 the exercise of its equitable discretion and subject to appropriate appellate review to vacate or modify its injunctions.’ ” 931 F.2d at 482 (quoting Booker v. Special School Dist. No. 1, 585 F.2d 347, 352 (8th Cir.1978), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979)). School desegregation plans are

particularly likely to need adjustment. As the Supreme Court has observed in such cases: “ ‘[E]quity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ ” Milliken v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1977) (Milliken II ) (quoting Brown v. Board of Educ., 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955)). The Fifth Circuit recently cited with approval a treatise that stated: “ ‘[A] court must continually be willing to redraft the order at the request of the party who obtained equitable relief in order to insure that the decree accomplishes its intended result.’ ” United States v. Lawrence County School Dist., 799 F.2d 1031, 1046 (5th Cir.1986) (quoting 11 C. Wright & A. Miller, Federal Practice and Procedure, § 2961 at 599 (1973)).
[2] The State argues that the district court erred or abused its discretion in rejecting the testimony of its expert witnesses who testified about the phenomenon of “tipping.” The experts testified that if a minority population at a school reaches a certain level, non-minority students will leave and the school will become all-minority or nearly all-minority, and that this phenomenon is described as “tipping.”
The State presented affidavits from Joan Solomon, Director of Urban Education for the State of Missouri, who had been the State’s representative to several committees in the St. Louis desegregation case, and Fred Linhardt, Director of Vocational Planning and Evaluation for the Department of Elementary and Secondary Education for the State of Missouri, also a member of one of the committees in the St. Louis case. Solomon testified in her affidavit that “any increase in minority percentage over 60% in Kansas City’s magnet schools could well make it significantly more difficult to attract non-minority students to the schools, and to retain present non-minority students.” Likewise, Linhardt testified that in his experience it was difficult to attract and retain non-minority students in primarily minority schools, and that he had witnessed tipping in public vocational high schools in St. Louis City and County. He also concluded that increasing the minority percentage in the magnet schools above 60% “could well make it significantly more difficult” to attract and retain non-minority students.
The State argues that its evidence regarding tipping was uncontroverted as KCMSD presented no affidavits, declarations, or documents saying that tipping would not be a problem in the magnet schools. The State also points to decisions of various other courts, as well as this court, recognizing the difficulties attendant to desegregation efforts when minority percentages in schools reach varying higher levels.2 The district court answered the State’s argument by concluding that “[t]he State has failed to provide support for its proposition that allowing the KCMSD to enroll more than 60% minority students in magnet schools would make it more difficult for the KCMSD to attract and retain non-minority students.” Slip op. at 5 (July 3, 1990 order).
The State’s argument on appeal is easily answered. The State’s argument is based upon the assumption that its unopposed testimony has preclusive weight. In essence, the State’s argument is that the district court judge, who has lived with this case since 1977, must give credit to the affidavits of two state employees with respect to the tipping phenomenon after *491 problems have developed in the first few years of implementing a massive school desegregation plan. The State’s argument ignores the district court’s duty to make factual findings based on the evidence before it and, in doing so, the court’s right to reject testimony that may be presented by either side.
A number of additional factors support our decision to reject the State’s argument. First, at this point, KCMSD has only begun its vast efforts to remedy the vestiges of the dual system of education in the school district. Second, despite repeated urging by this court, as of yet, the parties have only been able to achieve a voluntary interdistrict transfer plan involving 10 KCMSD students attending an elementary school in Missouri City. It is evident that utilizing a voluntary interdistrict transfer plan would ease the task of increasing the non-minority enrollment percentage in the KCMSD. Third, although the progress to date has been excruciatingly slow, the record demonstrates that progress has occurred, and the State’s assumption that the plan is a failure is premature, to say the least. The KCMSD enrollment figures indicate that in the 1987–88 school year, KCMSD placed approximately 140 new non-minority students in the magnet schools; in 1988–89, 300; in 1989–90, 517; and in 1990–91, 654. Moreover, many schools with a high percentage of minority students have, in fact, been successful in attracting non-minority students. For example, Central Middle School, which was nearly 100% minority, now has a 24% nonminority enrollment. In addition, Pinkerton Latin Grammar Elementary, Knotts Environmental Science Elementary, and Faxon Elementary have made similar progress in increasing their non-minority student population.
Under these circumstances, we cannot conclude that the district court erred or abused its discretion in adopting the contingency plan.

II.
[3] The State next argues that the district court erred in failing to accept either of its two alternatives to the contingency plan and in concluding that the State had failed to present a viable solution to the potential problems of student placement for the 1990–91 school year. Specifically, the State suggested that instead of modifying the 60%/40% guideline, the KCMSD should either “de-magnetize” certain magnet schools that had been unsuccessful in attracting non-minority students and open these as traditional schools to students not admitted to magnet schools, or create traditional school annexes at the existing magnet schools for the temporary use by students whom the KCMSD could not serve consistently with the 60%/40% guideline. Along similar lines, the State argues that if the KCMSD is allowed to abandon the goal of numerical integration, then the court should not require the State or the KCMSD’s patrons to fund remedial components that have as their sole or principal justification the attraction of non-minority students from the suburban and private schools.
The district court rejected the State’s alternatives because it concluded that either suggestion would re-create totally segregated schools in the KCMSD. Slip op. at 5 (July 3, 1990). It stated: “The State’s assumption that some magnet schools are failing is premature, as the [Long Range Magnet Plan] has not been fully implemented.” Id.
The district court did not err in rejecting the State’s alternatives and continuing to hold the State responsible for funding of the remedial plan. The most obvious shortcoming of the State’s arguments is that the arguments are directed solely to the KCMSD’s progress in attracting non-minority students to the magnet schools and do not consider any of the district court’s findings concerning the past segregation in the KCMSD or the causes and effects of that segregation. In Jenkins II, we pointed to district court findings that segregation has caused a system-wide reduction in student achievement in the KCMSD schools, 855 F.2d at 1300 (citing Jenkins, 639 F.Supp. at 24), that segregation in KCMSD had caused the departure of whites in the system to private and suburban schools, id. *492 (citing slip op. at 1–2 (August 25, 1986)), and that “ ‘[KCMSD’s] physical facilities have literally rotted’ ”, id. (quoting Jenkins v. Missouri, 672 F.Supp. 400, 411 (W.D.Mo.1987)). We affirmed the remedial orders entered by the district court stating: “The foundation of the plan adopted was the idea that improving the KCMSD as a system would at the same time compensate the blacks for the education they had been denied and attract whites from within and without the KCMSD to formerly black schools.” Id. at 1301. We affirmed the magnet school program as an integral part of the remedy with the goals of improving the education provided to all KCMSD students and attracting non-minority students back to the KCMSD schools. Id. at 1301–02. We further concluded that a substantial capital improvement plan would be required to achieve these goals. Id. at 1304–05.
As we have made abundantly clear, the purpose of the remedy in this litigation is at least two-fold: First, to remedy the deprivation of educational opportunities to children in the KCMSD, and second, to attract non-minority students to the school district. As we reiterated in Jenkins II, the long term goal of the district court’s effort was:
to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri, metropolitan suburban school district. In achieving this goal the victims of unconstitutional segregation will be restored to the position they would have occupied absent such conduct, while establishing an environment designed to maintain and attract non-minority enrollment.
855 F.2d at 1301–02 (citing slip op. at 17 (June 16, 1986)) (emphasis added in 855 F.2d at 1301–1302).
The State’s arguments simply ignore the goals of the district court remedial orders that have been amply discussed and approved by this court. Improving educational opportunities and attempting to attract non-minority students, whether from private schools or schools outside the district, present difficult management tasks. That effort is now in mid-stream. Under these circumstances, we are particularly mindful of the difficulty faced by the district court judge. We see no abuse of discretion in the orders entered in this case, no legal error, and insofar as the findings are based upon findings of fact, no findings of fact that are clearly erroneous.
The corollary to the State’s argument is that if the integration goals are not achieved, KCMSD should simply reestablish what the district court termed “the recreation of totally segregated schools in the KCMSD.” Slip op. at 5 (July 3, 1990). The district court did not err when it concluded that the State’s alternatives would re-create segregated schools. The State’s argument does not otherwise deserve further response.

It must be remembered that the district court issued its magnet school order on November 12, 1986. This court decided the appeal of that order and others on August 19, 1988. Jenkins II, 855 F.2d at 1296. Implementation of the magnet school orders has been slow. Part of the reason for the slow progress is the enormity of the task of remedying constitutional wrongs that had a tremendous impact in the Kansas City area. Implementation of the plan is requiring a considerable expenditure of funds to build new facilities and to develop plans for ambitious educational programs. It must also be said that in all likelihood, part of the reason for the slow pace is the fact that the State or a group of citizens has vigorously challenged and appealed every step and turn in implementing the desegregation plan. Exclusive of disputes on attorneys’ fees, this is the twentieth appeal since our first order approving the intradistrict desegregation plan. At the time the parties argued this case, four other cases were argued, and we have ascertained since argument that four more appeals have been filed. It is to be expected that an issue of this kind will, after the first litigation, produce other contested issues. On the other hand, there is a unique irony in this situation in which one of the parties substantially contributing to the protracted litigation presents an argument that because *493 there has not been immediate success, the plan should be scrapped.
The beneficiaries of the desegregation plan are the children of the Kansas City, Missouri, School District. The programs being developed in the district are proving to be of interest to an increasingly larger group of non-minority students who had been enrolled in suburban districts and private schools and must be given a chance to work.
The Jenkins group has argued that the issues in this appeal are moot. Without extended discussion, we conclude that the issues are capable of repetition. Indeed, the records of this court reflect that the State has filed another appeal from a similar order with respect to the 1991–92 school year. This satisfies us that we need not stay our hand because of mootness.
Finally, a brief has also been filed for a group of amici curiae arguing that they may be precluded from attending the KCMSD school of their choice in the future as a result of the magnet school admissions racial quota policy. It is evident from the contingency plan adopted that efforts are being made to ensure that minority school children will be able to attend magnet schools. Indeed, that is the very intent of the contingency plan. We, therefore, reject the arguments put forth by amici.
We affirm the district court’s order.

All Citations 942 F.2d 487, 69 Ed. Law Rep. 705

Footnotes

1

The Honorable Russell G. Clark, United States District Judge, Western District of Missouri.

2

Liddell v. Board of Educ., 469 F.Supp. 1304, 1327 (E.D.Mo.1979), rev’d on other grounds, Adams v. United

States, 620 F.2d 1277 (8th Cir.1980) (subsequent history omitted); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) (en

banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984); Clark v. Board of Educ., 705 F.2d 265 (8th

Cir.1983); Morgan v. Kerrigan, 401 F.Supp. 216 (D.Mass.1975), aff’d, 530 F.2d 401 (1st Cir.), cert. denied, White

v. Morgan, 426 U.S. 935, 96 S.Ct. 2648, 49 L.Ed.2d 386 (1976).

 
 943 F.2d 840 United States Court of Appeals,
Eighth Circuit.
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, 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, Appellees, American Federation of Teachers, Local 691, Appellee,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri,
Wendell Bailey, Treasurer of the State of Missouri, Missouri State Board of Education: Roseann Bentley, Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis (Presiding), Gary D. Cunningham, Rebecca M. Cook, Sharon M. Williams, Members of the Missouri, State
Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, Appellants, and
School District of Kansas City, Missouri, Claude C. Perkins, Superintendent thereof, Appellees, Icelean Clark, Bobby Anderton, Eleanor Graham, John C. Howard, Craig Martin, Gay D. Williams, Kansas City
Mantel & Tile Co., Coulas and Griffin Insurance Agency, Inc., Lucille Trimble, Berlau Paper House, Inc., Andrew J. Winningham, Intervenors–Appellees.
No. 91–1398. |
Submitted June 25, 1991. |
Decided Aug. 30, 1991.
Synopsis State sought order requiring school district to increase its property tax levy on district taxpayers in order to fund its fair share of costs of school desegregation. The United States District Court for the Western District of Missouri, Russell G. Clark, J., refused to require school district to increase its property tax levy, and state appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that judgment previously entered in school desegregation case, which required school district, if possible, to fund its fair share of costs of school desegregation, did not require district to increase its property tax levy to level greatly in excess of levy in surrounding districts.
Affirmed.
Attorneys and Law Firms
*841 Michael Fields, Jefferson City, Mo., for appellants.
Kevin Lanigan, Washington, D.C., for appellees.
Arthur Benson, Mark Bredemeier, Kansas City, Mo., for intervenors-appellees.
Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and HEANEY, Senior Circuit Judge.
Opinion
JOHN R. GIBSON, Circuit Judge.

The State of Missouri, in the ongoing Kansas City, Missouri, School District litigation, appeals from a district court1 order refusing to require the KCMSD to increase the property tax levy on KCMSD taxpayers. The State argues that the levy must be raised because it is insufficient to allow the KCMSD to pay its current share of desegregation obligations and repay the State for past desegregation obligations the State has been required to pay. The State asserts that the Supreme Court’s decision in Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), insofar as it affirmed the judgment of this court in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ),2 requires that the KCMSD pay in full its present and past obligations. The district court rejected the State’s request, which would have required an increase in the property tax rate in the district of between 35 and 125 percent. The district court held that our decision in Jenkins II required it to set some reasonable limit on the levy that was to be established by the school board and required the State to pay sums beyond the capacity of the KCMSD. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 6–8 (W.D.Mo. Jan. 24, 1991). The district court correctly interpreted this court’s and the Supreme Court’s decisions. We affirm.
In Jenkins II, we affirmed the district court order setting the property tax levy but prescribed a different procedure to be followed in the future. Under this procedure, the school board would be authorized to submit a proposed levy to fund its budget, including its share of the desegregation costs, subject to a reasonable limitation set by the district court. Jenkins II, 855 F.2d at 1314. The district court would then enjoin the application of Missouri constitutional and statutory provisions that would reduce or limit the levy below the amount submitted by the school board. Id. In Jenkins II, we also reversed the income tax surcharge. Id. at 1315–16.
The State petitioned for certiorari, which the Supreme Court granted. The Supreme Court reversed the portion of our decision that upheld the district court’s setting of the tax levy, 110 S.Ct. at 1663, but affirmed our judgment “insofar as it required the District Court to modify its funding order.” 110 S.Ct. at 1667. Following our decision, the district court had entered an order approving a property tax levy set by the school board at $4.00 per $100 of assessed *842 valuation.3 On July 23, 1990, the district court entered an order consented to by the State and KCMSD in which they agreed that a tax levy of $4.96 was a reasonable maximum rate for the 1990 and 1991 tax years. Jenkins v. Missouri, No. 77–0420–CV–W–4, slip op. at 5 (W.D.Mo. July 23, 1990).
Shortly thereafter, the State filed this motion seeking an order requiring KCMSD to set a levy in accordance with the Supreme Court’s decision, which it asserted requires the KCMSD to pay its full adjudicated 25 percent share of the desegregation remedy. The State asserts that the $4.96 levy will generate only 54 percent of the amount necessary to fund KCMSD’s share of the desegregation budget for the 1991 fiscal year. The State argues that the order should require the school board to set the levy high enough to allow the KCMSD to fully fund its current 25 percent obligation, as well as to repay the $113,781,011.63 that the State claims it is owed for funding past desegregation obligations of the KCMSD. The State proposed four options: (1) a levy of $11.16 to be in effect for one year, followed by a drop to $6.63, the level necessary to fund current obligations; (2) a levy of $7.68 for five years, followed by a drop to the levy necessary to fund current obligations; (3) a levy of $7.06 to pay off 20–year general obligation bonds that would be used to pay off past obligations; (4) the same as option number 3, but with a levy of $6.70. The lower levy would be based on the assumption that the KCMSD would spend only 90 percent of its annual desegregation budget.
The district court rejected the State’s motion, relying on our holding in Jenkins II that the State has an obligation to pay any required sums that are beyond the capacity of the KCMSD. Jenkins, slip op. at 6–8 (Jan. 24, 1991). The district court concluded that no basis existed for the State’s argument that KCMSD must now pay all of its allocated desegregation costs regardless of the availability of revenue. Id. at 8. The district court stressed our holding that the levy must be subject to some reasonable limitation in reference to levies in neighboring areas. Id. at 6–7 (citing Jenkins II, 855 F.2d at 1314). It concluded that its orders as modified by this court and affirmed by the Supreme Court “provide for tax increases that yield desegregation revenue to offset part of the KCMSD’s share,” but that this revenue “does not eliminate the State’s responsibility under principles of joint and several liability to fund desegregation costs in excess of the revenue generated by a reasonable levy rate.” Id. at 8.
The district court concluded its order by admonishing the KCMSD to “commit itself not to impose unnecessary fiscal burdens on the State simply because the desegregation remedy provides for joint and several liability.” Id. at 8–9.
On appeal, the State essentially reiterates the arguments it unsuccessfully pressed in the district court. It argues that we must apply the Supreme Court’s decision affirming our holding that KCMSD patrons could be taxed without their consent above the amounts permitted by the state constitution and statutes. The State cited language in the Supreme Court decision that each tortfeasor was required to pay “its share of the cost of the remedy if it can,” 110 S.Ct. at 1665, and argued that the Court did

not indicate that the KCMSD’s obligation to pay its share was limited in any way and specifically did not discuss “reasonable” limits. It argues that the Supreme Court granted KCMSD the ability to raise all necessary funds over the State’s objections and despite the State’s offer to fund the entire remedy, if necessary, to preserve the constitutional power of its political subdivisions to control their local tax rates.
In a sense, the State’s argument attempts to push the Supreme Court decision to its logical extreme. Indeed, the State flatly asserts: “Having won it[s] argument in the Supreme Court, however, KCMSD now appears to be avoiding the logical conclusion of its victory.” It argues that the Supreme Court’s approval of overriding state constitutional and statutory provisions *843 makes sense only in the context of a holding that the KCMSD is responsible for its full adjudicated share of the remedy.
As the State’s arguments boil down to its contention that the district court misread this court’s opinion in Jenkins II as well as the Supreme Court’s decision, we set out the relevant language of those opinions.
In Jenkins II, after setting out the future procedure under which the school board would submit a proposed levy to collection authorities adequate to fund its budget and the district court would enjoin Missouri constitutional and statutory limitations that would limit or reduce the levy below that level, we stated:
However, the levy must be subject to some reasonable limitation, taking into consideration rates in neighboring areas.... There are several possible approaches for such a limitation. One would be to allow the highest levy approved by any district in Jackson County, which in this case is Lee’s Summit with a levy of $4.77. Another approach would be to allow a combination of the highest levies for operating expenses and bonded indebtedness ever approved by KCMSD voters. A third approach would be to allow the average of the highest two or three levies in Jackson County. The levy must, of course, be sufficient to fund the necessary desegregation programs, and we believe that it is best to leave the selection of an appropriate limitation to the district court’s discretion.
Permitting the school board to determine the amount of its levy (subject to reasonable limits) will give maximum consideration to the views of state and local officials and is least disruptive of existing state laws and procedures. The KCMSD board and county and state officials will be allowed to perform their functions as required by state law. In addition, the district court will be removed from the process of setting the levy and limited solely to establishing the maximum limit and enjoining enforcement of those provisions of Missouri law that prevent KCMSD from raising the money to remedy the constitutional violations.
Jenkins II, 855 F.2d at 1314 (citation omitted).
We appended this footnote to our discussion of a reasonable limit:
We recognize that there may be some circumstances in which the district court could justifiably find that KCMSD did not have sufficient resources to fully fund the apportionment we have affirmed today of the desegregative costs, and if it so finds, we do not preclude the district court from placing the remainder of the burden on the State.... It is our intent that KCMSD contribute its share, subject to these considerations.
Id. at 1314 n. 18.
After reversing that portion of the district court’s judgment ordering an income tax surcharge, we stated:
We caution that the constitutional violations must be remedied and the remedies fully funded. Any refund orders must be crafted recognizing this fundamental principle.
Id. at 1316. We concluded our discussion by stating:
In our earlier en banc opinion we made clear that the remedy ordered by the district court must be fully funded.... Should the funds that KCMSD can provide for desegregation expenses under today’s decision fall short, the remainder must be paid by the State, as the orders of the district court have imposed joint and several liability on the State and KCMSD....
The funding provisions that we have affirmed today will continue until further order by the district court, or until KCMSD is able to fund its share of the desegregation remedy or the legislature has made other sources of revenue available for this

purpose.
Id. (emphasis added). We appended the following footnote to this discussion:
While we have rejected the argument urged by a number of the amici and adopted by the dissent that under this principle all costs should be borne by the State, the State does have an obligation *844 to pay any required sums which are beyond the capacity of the school district.
Id. at 1316 n. 21 (emphasis added).
In its opinion, the Supreme Court considered the modified procedure for setting the tax levy prescribed in Jenkins II, and held that our discussion was not dictum, as we had before us the State’s appeal from the entire funding order of the district court. 110 S.Ct. at 1664 n. 18. It then looked to the district court order of January 3, 1989, following remand after Jenkins II, in which the court directed the school board to submit a property tax levy rate for its approval. The Court observed: “The District Court’s approval of the levy was necessary because the Court of Appeals had required it to establish a maximum for the levy. See 855 F.2d at 1314.” Id. at 1664 n. 18.
In answer to the State’s arguments that monetary obligations that KCMSD could not meet should fall on the State rather than result in interference with state law, the Court replied: “[W]e cannot say it was an abuse of discretion for the District Court to rule that KCMSD should be responsible for funding its share of the remedy.” Id. at 1664. The Supreme Court further stated that 42 U.S.C. § 1983, on which the Jenkins claim is based, “is authority enough to require each tortfeasor to pay its share of the cost of the remedy if it can, and apportionment of the cost is part of the equitable power of the District Court.” Id. at 1665 (emphasis added).
The Court concluded its opinion by stating:
Accordingly, the judgment of the Court of Appeals is affirmed insofar as it required the District Court to modify its funding order and reversed insofar as it allowed the tax increase imposed by the District Court to stand. The case is remanded for further proceedings consistent with this opinion.
Id. at 1667.
Most charitably put, the State’s argument that the opinions of this court and the Supreme Court require the full burden of current and past obligations to be placed on KCMSD is untenable. The State ignores the requirement of a reasonable limit on the levy rate and the fact that it is obligated to “pay any required sums which are beyond the capacity of the school district.” 855 F.2d at 1316 n. 21. The State compounds this further when it blinks the Supreme Court’s affirmance of our judgment modifying the funding order. In short, the State’s position is legally frivolous.4 We need say little more in answer to the arguments asserted.
We think it appropriate to point out, however, that if the reasonable limit requirement were to be set aside, as the State apparently suggests, the tax levy in the KCMSD would greatly exceed the levy in the surrounding districts. The current rate of $4.96 is somewhat higher than the average of the highest three levies in Jackson County and is only slightly under the highest levy in that county. The $4.96 rate is comparable to the tax rate in neighboring Johnson County, Kansas.5 The State’s four proposals, requiring levy rates of $6.70 to $11.16, would result in a substantially higher tax rate in the KCMSD than in neighboring school districts.
One or two further comments are in order. We note that the State filed the motion now before us only three months after the district court entered the consent order in which the parties, including the State, agreed to a reasonable maximum levy limit *845 of $4.96. We also observe that the State’s claim that there should be no levy limit at all runs totally counter to its earlier position against enjoining state constitutional and statutory provisions to allow a levy increase.
We find it hard to believe the State can seriously make its present argument in light of our April 22, 1991, decision, which followed the District Court’s order in this case but preceded by 18 days the filing of the State’s brief in this appeal. Referring to our earlier decisions, we wrote: “[W]e explicitly stated that the remedy must be fully funded and should KCMSD’s funds fall short, the remainder must be paid by the State....” Jenkins IV, 931 F.2d at 477. We also specifically pointed to footnotes 18 and 21 in Jenkins II, see 931 F.2d at 477, which have been earlier cited in this opinion.

Taxpayer intervenors6 have joined in the arguments of the KCMSD, the Jenkins class, and the American Federation of Teachers, also an intervenor, asking that we set forth a number of guidelines directing future KCMSD taxation. We decline to do so because we believe this asks us to render an advisory opinion.
The State has requested an early decision in this case so that the tax assessments to be made in the fall of 1991 may proceed.
The judgment of the District Court denying the motion is affirmed.

All Citations 943 F.2d 840, 70 Ed. Law Rep. 319

Footnotes

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

See Jenkins v. Missouri, 931 F.2d 470, 475 (8th Cir.1991) (Jenkins IV ) for a brief history of the Jenkins litigation.

3

Future references to the levy rate will omit the phrase “per $100 of assessed valuation.”

4

It is appropriate to observe that this appeal has caused an appendix of 1,295 pages to be ﬁled.

5

Our decision in Jenkins II suggests a number of approaches the district court could use in setting a reasonable

limit on the levy. As these approaches rely on comparisons with levy rates in surrounding districts, it is useful here

to observe that the highest levy in Jackson County is $5.07 (in Lee’s Summit), and the average of the highest

three levies in the county is $4.45. The highest levy ever approved by KCMSD voters is $4.23. An afﬁdavit

submitted by the Jenkins class states that the property tax rate in the KCMSD is comparable to the property tax

rate in Johnson County. On a home with a market value of $100,000, the tax rate is about $5 higher per month in

the KCMSD than in Johnson County.

6

Intervenors also appeal from the district court’s consent order ﬁnding the reasonable maximum levy limit to be

$4.96.

 
 981 F.2d 1009 United States Court of Appeals,
Eighth Circuit.
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. |
Submitted July 15, 1992. |
Decided Dec. 31, 1992.
Synopsis Black students from urban school district brought suit and alleged that they were denied admission into suburban school district because of race. The United States District Court for the Western District of Missouri granted summary judgment for state and schools, and students appealed. The Court of Appeals, 904 F.2d 415, reversed and remanded with directions in part and vacated in part. On remand, the District Court, Russell G. Clark, J., denied approval of proposed settlement plans, and appeal was taken. The Court of Appeals, John R. Gibson, Circuit Judge, held that remand was required so that district court could hold evidentiary hearing to reconsider objections to proposed voluntary interdistrict plan to desegregate school district.
Remanded.
Attorneys and Law Firms
*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.
Opinion
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.
*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 granted summary judgment in favor of all defendants, Naylor v. Lee’s Summit Reorganized School District R–VII, 703 F.Supp. 803 (W.D.Mo.1989). We reversed and remanded this case with orders that it be transferred to Judge Clark. Jenkins v. Missouri, 904 F.2d 415 (8th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 311 (1990).
Thereafter, the Missouri City School District agreed to accept ten voluntary interdistrict transfer students from KCMSD. The second year funding of this plan was before this court in Jenkins v. Missouri, 965 F.2d 654 (8th Cir.1992).
Our remand in the Naylor case led to negotiations between the Jenkins Class and Independence and North Kansas City School Districts. Eventually, each of the two districts proposed a separate voluntary interdistrict transfer plan and the plaintiffs dismissed the Naylor suit with prejudice. The Independence School District plan would admit 420 KCMSD students, beginning with thirty-five seventh grade students in 1992 and an additional thirty-five seventh graders the next year. After the first two years the program would be centered in a collaborative school that would require construction of a new building at an estimated cost of $4,402,341 to ultimately house 480 students, half of whom would be minority students from KCMSD and the remainder students from the Independence District. The North Kansas City plan would accept sixty kindergartners and sixty first graders in the program’s first year, and thereafter sixty kindergarten students a year would be admitted so that a maximum of 780 KCMSD students might ultimately attend school in North Kansas City. The KCMSD transfer students would be dispersed throughout the North Kansas City school system. The North Kansas *1012 City plan also envisioned construction of additional facilities at a cost of $4,386,600 plus additional amounts for architect’s fees, land acquisition, furniture and equipment, and attorneys’ fees. Both plans would admit minority KCMSD students with no history

of serious discipline problems. A representative of the Jenkins Class was to select the students to participate in the transfer program. Both plans would require the expenditure of funds for tuition, transportation and incremental costs such as salaries for additional certified classroom teachers, counselors, school nurses, and administrators required by the program, as well as costs of staff development programs to prepare the staff, resident and transfer students and parents for successful operation of the plan. Both districts state that their school system is now operating at or near capacity.
The Jenkins Class moved in the district court for approval of these plans. The other parties to the suit, KCMSD, the State and the American Federation of Teachers, all articulated support for the general concept of voluntary interdistrict transfer plans, but objected to the particular plans before the district court. The State objected to the lack of uniformity in the plans, which would make the plans difficult to administer. Order of May 24, 1991, slip op. at 2. The district court catalogued a number of the State’s other objections, including complaints that: the plans are proposed in addition to the existing long range magnet and capital improvements plan which should therefore be cut back as quid pro quo for the new programs; the tuition figures for the state to pay are excessive; the definition of minority students to include students other than blacks is over inclusive; the forty-five minute transportation time limits provided in the plans are unreasonable; and the Independence plan to create a predominantly minority school in a predominantly white school district is of questionable constitutionality. Order of Mar. 24, 1991, slip op. at 2–3.
The court also pointed to KCMSD’s concerns about whether additional capacity is actually necessary to accommodate transfer students in Independence; whether a magnet school is necessary there to attract minority transfers from KCMSD; and whether it would be permissible for Independence to operate a predominantly minority school in an overwhelmingly nonminority school district. Slip op. at 3. KCMSD also expressed concern about whether there is any need for the requested capital improvements in North Kansas City. Id.
The court recognized the teachers’ concerns that the plans do not adequately address insuring a racially and ethnically diverse work force or provide appropriate protection against job displacement for KCMSD employees. Slip op. at 4.
The court further acknowledged the truth of the Jenkins Class’ response that because the suburban school districts are not parties to the case or adjudged constitutional violators, they can walk away from the plan if the parties do not agree to it exactly as proposed. Id. It concluded, however, that the issues raised were too important to ignore for the sake of quickly implementing the two plans. Id. at 4–5. It encouraged the Jenkins Class and the SSD’s to submit revised proposed transfer plans and respond to the concerns set forth by the State, KCMSD, and the teachers. Id.
Thereafter, the Jenkins Class informs us that it held further discussions with Independence and North Kansas City, and the Class renewed its motion for approval of the voluntary interdistrict plans. Again, KCMSD, the State and the Teachers filed responses in opposition. The district court recognized that the plans were identical to those submitted earlier, and acknowledged the Jenkins Class’ statement that the objections and reservations had been considered and could not be accommodated without losing the voluntary participation of the two suburban school districts. The court then denied the renewed motion for approval of the plans “for the reasons set forth in this court’s order of May 24, 1991.” Order of Jan. 24, 1992.
Although the parties suggested the need for a hearing the court did not conduct a hearing on either of the motions.
*1013 I.
This case stands in a somewhat unique posture as the May 24, 1991 order catalogs issues too important to ignore, without deciding them. When the parties resubmitted the identical plans, the court denied them without articulating its reasons, other than by reference to its first order, or conducting a hearing. Order of January 24, 1992. Thus, while recognizing the issues, the district court did not finally decide them and no opportunity was given to explore modifications. There has been no clear articulation of the reasons for the decision.
We must first address two procedural questions before considering the merits of the Jenkins Class’ motion.
First, the nub of the Jenkins Class’ argument is that because the denial of approval by the district court was not based upon factual findings, we must conduct a de novo review. The Jenkins Class then argues that since it presented a settlement with two suburban districts, the court must assume that the plans as a matter of fact will accomplish the interdistrict transfer of

KCMSD minority students consistent with the voluntary interdistrict transfer component of the remedy. They further argue that unless this court concludes that these plans call for practices which have been ruled in prior judicial decisions to be per se illegal or unconstitutional, the district court’s orders must be reversed and the plans approved.
[1] KCMSD attacks the Jenkins Class’ argument that its “settlement must be presumed valid,” since there has been no settlement between the parties, but only between one of the parties and two nonparties. KCMSD’s response has a significant weakness: as a voluntary interdistrict transfer plan of necessity must involve suburban school districts that are not parties to this litigation, it would be essential that the settlement include non-parties in order for there to be any plan at all. KCMSD and the State as constitutional violators, are subject to an order to participate in such plans even though they may not have participated in the settlement discussions or agreed to the settlement. See Liddell, 731 F.2d at 1311. In view of the hesitancy or timidity, if not tacit resistance, of the three opposing parties to this settlement, it is not surprising that the Jenkins Class representative would directly approach the suburban school districts to try to achieve a settlement. While the settlement before the court in Little Rock School District v. Pulaski County Special School District No. 1, 921 F.2d 1371, 1384–85 (8th Cir.1990), was between all parties to the litigation, under the unique circumstances before us, we believe that a settlement between one of the parties and two of the only kind of entities with whom a settlement is possible, is at least deserving of careful scrutiny by the court and an effort to determine if the plan may be effectuated.
Second, the State argues that this case is moot as both Independence and North Kansas City have withdrawn their agreement to participate in the plans. The record indeed contains correspondence from the attorney for the two districts indicating that the districts’ willingness to participate in the proposed plan would expire if Judge Clark ruled the plans unacceptable, and that neither district was willing to “ ‘negotiate’ any sort of participation in a voluntary transfer plan.” The State argues that the Jenkins Class dismissed its action against the suburban school districts in Naylor with prejudice in order to get the two suburban districts to participate in the plans presented to Judge Clark and containing the expiry provision. Therefore, once Judge Clark failed to order the plans, the Jenkins Class lost its bargaining power. This, says the State, was a gamble that the Jenkins Class took and lost.
We cannot accept the State’s argument that the appeal should be dismissed as moot. Since 1985 the district court, with the approval and urging of this court, has been attempting to include as part of the desegregation remedy a voluntary interdistrict transfer plan. Thus far, this has resulted *1014 in the implementation of a program involving exactly ten students in Missouri City. In view of the earlier statements of the district court and this court that such plans should be implemented, we refuse to terminate further exploration of voluntary interdistrict plans on the basis of an argument of mootness.
Further, as the armamentarium of the lawyer must include intractability, we hope that on further examination the court may find that the school districts have some flexibility consistent with their commendable attitude in initially agreeing to the plans.
II.
With these preliminary comments in mind, we turn to the specifics of the plans before the district court, and whether the plans contain any constitutional or legal infirmities.
[2] With respect to Independence, three infirmities present themselves. First, all of the Jenkins Class students participating in the voluntary plan in Independence would be transferred to the newly constructed magnet or collaborative school as a single minority outpost in an overwhelmingly non-minority school district. KCMSD and the State argue that the plan is defective for this reason. We entertain no doubt that this plan is constitutionally suspect on its face.
[3] A second deficiency, also of constitutional dimension, is apparent in the Independence plan. The plan requires construction, at a cost in excess of $4,000,000, of a magnet school in a predominantly non-minority area that would exist to serve a school population one-half of which would be non-minority students from that district. The State and KCMSD argue that this would create a windfall for Independence in building additional space to house Independence’ own students. Such a remedy would not be tailored to remedy a constitutional violation, as required by Milliken v. Bradley, 433 U.S. 267, 282, 97 S.Ct. 2749, 2758, 53 L.Ed.2d 745 (1977) (Milliken II ); Board of Education v. Dowell, 498 U.S. 237, ––––, 111 S.Ct. 630, 637, 112 L.Ed.2d 715 (1991). This is particularly true in light of the claims made by the State, which have not been subjected

to any verification by factfinding, that there is sufficient classroom space available in the Independence district to house transfer students participating in an interdistrict plan.
Finally, KCMSD and the State make the same argument with respect to the provision in the Independence plan that there be one teacher for every 15 students in the new magnet school. This is a substantially lower teacher to student ratio than has been approved by the district court for the schools in KCMSD. The desegregation remedy provided for a ratio of 22:1 in grades K–3 and 27:1 in grades 4–5. It is difficult to see how a student-teacher ratio found adequate to remedy constitutional violations within KCMSD is inadequate, without some record support and factual findings, for the same students once they transfer to a suburban school district.
Thus, there are particular constitutional infirmities in the Independence plan that prevent approval of such a plan by the district court.
In the North Kansas City plan, the transferring students were to be dispersed throughout the district. However, the plan requires construction of additional classroom facilities, also at a cost of in excess of $4,000,000, without any determination by the district court as to the need for such facilities and with some dispute between the parties as to whether sufficient classroom facilities already exist. Without a demonstration of need for the facilities to house the transferring students, this plan also runs afoul of the principles of Milliken II, as reiterated in Dowell, 498 U.S. at ––––, 111 S.Ct. at 637.
The State argues that the net effect of the capital improvement aspects and, to a degree, the program costs of both plans, is to require the State to pay for a desegregation remedy twice, first within KCMSD and then in a suburban district participating in a voluntary interdistrict transfer plan. We see this as producing no more than the possibility of such a duplication, as the *1015 KCMSD intra-district remedy is still in the implementation phase (even though it may be well along at this point). Should participation of KCMSD students in voluntary interdistrict transfer plans result in lessened need for facilities within KCMSD, adjustments can be made. However, the spectre of duplication does not foreclose construction of new facilities that the district court determines to be necessary to accommodate transfer students in a suburban district, as the court can offset such increases with reductions in later construction within the district, if required. Needless to say, there should be no reduction in KCMSD construction for this reason until it is evident that the voluntary interdistrict transfer plans are having a real impact on enrollment within KCMSD. Avoidance of duplication is for the district court to consider in ordering new expenditures.
Many of the more technical complaints, particularly the State’s objections concerning transportation times, tuition rates, and attorneys’ fees, are issues that require further factual development by the district court. The fact that the State has proposed a plan demonstrates that many of these issues are matters of degree that may be resolved by negotiation and further investigation by the district court.
Both the State and KCMSD urge that the indemnity agreements that are a part of the two plans present potential constitutional or legal deficiencies, but we think that this is a sufficiently fact-bound inquiry that it should be first developed by the district court.
The teachers argue that the plans do not provide appropriate protection against displacement of Kansas City School District teachers, as a reduction of students in the district would result in a reduction in teachers and support staff in the district, and the agreements as proposed do not insure an ethnically diverse work force in the suburban districts. We do not consider the plans legally deficient in these respects. Certainly, the hiring practices in all school districts must comply with laws prohibiting discrimination. On the other hand, to mandate further protections in the voluntary interdistrict transfer plans adds an additional obstacle to the adoption of such plans.
The numerous objections to the two plans demonstrate the difficulties of achieving an interdistrict plan. Years have passed, however, and such plans have not come into existence, with the exception of the one noteworthy plan, which insofar as we are able to ascertain is working successfully. It is evident that the efforts to this point have not been successful in expanding the voluntary transfer remedy beyond this small scope. The desegregation monitoring committee, while serving an admirable function in other respects, has not succeeded in developing voluntary interdistrict transfer plans.
[4] It is important for the district court to give full attention to development of an interdistrict plan. An evidentiary hearing is necessary for this purpose and that the court should give detailed consideration to the plan prepared by the State, as a starting point. The suburban school districts should be invited to participate in this evidentiary hearing, and the district court should make clear to the suburban schools that if they participate, such participation will not be used in any way to affect whatever

legal rights they have. Any plan developed should have sufficient flexibility so that it may be tailored to each district. The beginning of this entire effort, however, should be a hearing by the district court to develop an overall master plan as a basis for discussions with the suburban districts. The time has come for affirmative efforts to push such plans to completion. Circulation of plans with a cover letter and the efforts of some committees have simply proved to be inadequate. Positive action is required.
The development of the plan should have as its cornerstone a truly voluntary selection of students, in which the students make application and indicate their choice of schools and willingness to attend. Once accepted into those schools, the students should be subject to the administrative and disciplinary procedures of the host district.
*1016 The funding provisions imposed upon the State must be sufficient to cover the reasonable costs for the plans so that the participating suburban districts are fully reimbursed for their expenditures. While the State makes much of avoiding windfalls to participating districts, it is evident that suburban districts participating in such plans must have the costs of such plans paid by the State.
As pointed out by KCMSD, the State, through its legislative and administrative bodies, has authority to effectively establish an interdistrict plan if it chooses, and it may require suburban districts to accept minority transfer students from KCMSD. The State could establish such a plan and implement it without the constraints that limit the courts. As the Supreme Court made clear in Freeman v. Pitts, 503 U.S. 467, ––––, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992):
[I]t must be acknowledged that the potential for discrimination and racial hostility is still present in our country, and its manifestations may emerge in new and subtle forms after the effects of de jure segregation have been eliminated. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its school systems. Where control lies, so too does responsibility.
Indeed, meaningful and effective action of the State in establishing such plans would demonstrate a commencement of responsible assumption of local control of educational policies for desegregation purposes as referred to in Dowell and Freeman.
KCMSD proposes that the district court consider the possibility of enlisting the assistance of an independent, well-respected individual to attempt to bring the parties and suburban school districts together in achieving a plan. We consider this a sensible suggestion. There are a number of individuals in the Kansas City area with not only local, but also state-wide and national standing, reputation and abilities to make them valuable in this respect. Possibly someone from outside the area would give fresh insight to this effort. We urge that the district court consider the desirability of such a step. What is of utmost importance is that a major effort be made to achieve what the district court and this court have held to be a desirable program in orders going back more than seven years. The time has come for effective action to develop a voluntary interdistrict plan that “promises realistically to work now.” Green v. New Kent County Sch. Bd., 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968), quoted in Freeman v. Pitts, 503 U.S. at ––––, 112 S.Ct. at 1436.
We remand for further consideration the two plans now before us and for renewed efforts to effectuate a voluntary interdistrict plan in the Kansas City area.
All Citations
981 F.2d 1009, 79 Ed. Law Rep. 769

 
 965 F.2d 654 United States Court of Appeals,
Eighth Circuit.
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–Appellees, 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,
Defendants–Appellants, School District of Kansas City, Missouri; Walter L. Marks, Superintendent thereof, Defendants–Appellees.
No. 91–2512. |
Submitted Jan. 8, 1992. |
Decided June 2, 1992.
Synopsis State appealed order of the United States District Court for the Western District of Missouri, Russell G. Clark, Senior District Judge, requiring state to pay $5,000 for each student participating in voluntary interdistrict transfer plan for desegregation. The Court of Appeals, John R. Gibson, Circuit Judge, held that evidence supported order requiring state to pay $5,000 per student.
Affirmed.
Attorneys and Law Firms
*655 Michael J. Fields, Jefferson City, Mo., argued (Bart A. Matanic, on the brief), for appellants.
Arthur A. Benson, II, Kansas City, Mo., argued (Dianne E. Moritz, Michael Thompson and Shirley Ward Keeler, Kansas City, Mo., and David S. Tatel, Kevin J. Lanigan and Wilhelmina M. Wright, Washington, D.C., on the briefs), for appellees.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion
JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from an order of the district court1 that it pay *656 tuition costs of $5,000 for two students of the Kansas City, Missouri, School District participating in a voluntary interdistrict transfer plan to the Missouri City schools. The students were replacements for two of the original group of ten in the program, one of whom had graduated and the other

of whom withdrew from the program. The State argues that the expenditures exceed the costs of the receiving school district and should be limited to the actual costs under the standards contained in Liddell v. Missouri, 731 F.2d 1294, 1302 (8th Cir.) (en banc) (Liddell VII ), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984). We affirm the judgment of the district court.
This court has in numerous decisions dealing with the Kansas City school desegregation litigation strongly urged the State to work with the suburban school districts surrounding KCMSD to develop a voluntary interdistrict transfer plan. Such a plan in St. Louis has made substantial progress toward desegregating the schools in that area. See Jenkins v. Missouri, 807 F.2d 657, 683 n. 30 (8th Cir.1986) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987); Jenkins v. Missouri, 904 F.2d 415, 418 (8th Cir.) (Jenkins IV ), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 311 (1990).
The first progress toward a voluntary interdistrict transfer plan in the history of the desegregation efforts in the Kansas City schools occurred when the State called a meeting on May 29, 1990. After the meeting, Missouri City indicated a desire to participate in further discussions. Missouri City has a total enrollment of about 97 students and is a community of less than 400 people2 in Clay County, Missouri. The parties and Missouri City negotiated a plan, and after some difficulties the plan was completed and presented to the court. The district court approved the plan in large part, but rejected portions of it. Order of Sept. 4, 1990, slip op. at 1. The parties agreed to a modified plan, which the court approved. Order of Sept. 24, 1990, slip op. at 1. The plan provided for payment of no less than $5,000 per year for each of the original ten students for as long as they chose to continue participating in the plan. The plan provided that this figure was reached on the basis of incomplete information and in the absence of an opportunity for more thorough analysis and for the purpose of agreeing to the program before the beginning of the 1990–91 school year.
After the 1990–91 school year, one student graduated and one withdrew from the plan. Two replacement students were added and the district court ordered tuition of $5,000 per student to be paid to Missouri City, stating: “The budget for 1991–92 is reasonable and necessary for the continued implementation of the voluntary interdistrict transfer component of the plan for the desegregation [of KCMSD] and is approved.” Order of May 28, 1991, slip op. at 1.
Before entry of the order, the State argued that Missouri City’s actual cost per student was the limit that should be paid under Liddell VII and Jenkins I. The State filed an affidavit containing detailed calculations showing the cost per student under the Liddell VII formula was $3,672.74.
[1] [2] The district court did not specifically address the State’s argument in its order. The district court found that the tuition of $5,000 per student was “reasonable and necessary for the continued implementation of the voluntary interdistrict transfer component of the [desegregation] plan.” Order of May 28, 1991, slip op. at 1. We give great deference to a district court’s exercise of its broad equitable powers in crafting a remedy in school desegregation cases. Liddell v. Board of Educ., 867 F.2d 1153, 1155 (8th Cir.1989) (per curiam); Jenkins v. Missouri, 855 F.2d 1295, 1310 (8th Cir.1988) (Jenkins II ), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990); *657 Davis v. Board of Educ., 674 F.2d 684, 688 (8th Cir.), cert. denied, 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 146 (1982); Booker v. Special School Dist. No. 1, 585 F.2d 347, 354 (8th Cir.1978), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979). There was sufficient evidence before the district court to support its finding. The $5,000 tuition figure had been developed by all of the parties for the 1990–91 school year when all agreed that it was a reasonable minimum tuition for the original ten students throughout their tenure in Missouri City. While there was language providing that the terms of the VIT plan would not have “preclusive or precedential effect, with respect to future VIT plans,” the district court made clear that the plan would have significant evidentiary value in other suburban districts and that evidence gained as a result of the plan would be important in the event that one of the parties sought to modify the plan, and accordingly refused to order that information gained from the plan could not be used as evidence. Order of Sept. 4, 1990, slip op. at 4. On the basis of this record, the court could certainly consider the plan and its agreed tuition in considering the substitution of the two students one year later. While the State presented an affidavit of a state official that the tuition exceeded actual costs, the district court in making its finding was not required to accept this figure. See Jenkins v. Missouri, 942 F.2d 487, 490–91 (8th Cir.1991) (Jenkins V ). The court’s rejection of that evidence does not make its finding clearly erroneous or its remedial order an abuse of discretion.
The State argues that the tuition should be limited by the formula approved in Liddell VII. What we said in Jenkins v. Missouri, 890 F.2d 65 (8th Cir.1989) (Jenkins III ), is a complete answer to this argument:
We acknowledge that different remedies have been fashioned in the Kansas City desegregation effort than in the comparable St. Louis case. However, the remedies approved in either case do not necessarily restrict the options of the district court in the other. As the Supreme Court has stated, “There is no universal answer to complex problems of

desegregation; there is obviously no one plan that will do the job in every case. The matter must be assessed in light of the circumstances present and the options available in each instance.” Green v. County School Bd., 391 U.S. 430, 439, 88 S.Ct. 1689, 1695, 20 L.Ed.2d 716 (1968).
Id. at 69.
[3] In considering voluntary interdistrict transfer plans, the district court certainly should consider the Liddell formula, as well as the costs of the receiving district, but in the last analysis the determination of a proper tuition figure must be made by the district court considering the factual setting of the case before it. The record demonstrates that this was done and the district court in looking to the amount agreed to by the parties the year before had sufficient factual support for its finding. We affirm the order of the district court.

All Citations 965 F.2d 654, 75 Ed. Law Rep. 773

Footnotes

1

The Honorable Russell G. Clark, Senior United States District Judge for the Western District of Missouri.

2

The 1991–92 Ofﬁcial Manual of the State of Missouri, p. 754, lists the 1990 population as 348.

 
 1992 WL 551569 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
June 17, 1992.

ORDER
RUSSELL G. CLARK, Senior District Judge. *1 Before the Court is the KCMSD’s Year VIII Desegregation Plan. The parties have stipulated to budgets for certain components and the Court heard evidence regarding the remaining disputed components on May 27–28, 1992. The Year VIII Desegregation Budget will be approved as set forth below.
The parties have stipulated to the following components and budgets:

Stipulated Year VIII Budget

KCMSD Obligation

AAA Reduced Class Size Full Day Kindergarten

6,138,490 16,988,240 1,880,137

2,703,822 16,988,240
470,034

Reduced Class Size Full Day Kindergarten Summer School Early Childhood Education Interest Expense Maintenance

16,988,240
1,880,137 2,334,374
4,451,351 593,500 4,233,527 36,619,619

16,988,240
470,034 583,595
1,112,038 593,500 4,233,527 26,684,756

The parties dispute budgets for the following components:
Extended Day, Effective Schools, 1986–87 Magnets, District Communications, Security, Special Education Compliance and High School Prep. In addition plaintiffs have requested an Eight Period Day at Westport High School, Playground Equipment for Faxon Montessori and Team Travel/Tournament Entrance Fees for Central High School. Extended Day—The KCMSD proposes a budget of $453,000 to continue the extended day programs at Border Star, James, Greenwood, Rock Creek West, Scarritt and Askew. The State objects that this program is not attracting non-minority students to the District’s traditional schools. However, the KCMSD states that the program is an important factor in the decision of parents who chose these schools, particularly non-minority parents. The KCMSD also states that the program is having a significant impact on academic achievement.
Effective Schools—The KCMSD proposes a budget of $7,250,000 to continue the effective schools program. The KCMSD has restructured the program to focus on instruction and school climate, as well as competitive grants based on school success. The State objects that the effective schools program has not been successful in improving student achievement through planning and implementation at the school level.

The KCMSD admits that the program has resulted in mixed success. The KCMSD maintains that raw test score results when compared only with test score objectives do not adequately reflect improvements in achievement. Also, several school principals testified that their programs would suffer drastically without effective schools funding. The Court will continue funding for Year VIII.
1986–87 Magnets—The KCMSD proposes a budget of $8,001,410 to fund the 1986–87 Magnets. During 1991 the District initiated discussions with the State and the DMC Budget Subcommittee on the desirability of providing Year VIII budgets in a manner that would more clearly depict the desegregation contributions of major activities funded by the Court. The Year VIII Magnet base budget reflects transfers of appropriate positions to other budgets. Also the 1992–93 proposal delineates base and theme costs. This Court agrees with the KCMSD that these programs should remain viable with desegregation funding for Year VIII.
*2 District Communications—The KCMSD proposes a budget of $31,125 to publish a District newspaper ten times during the 1992–93 school year. The State objects that this component should be taken over by the District and placed in its operating budget. However, the newsletter is directly related to attracting non-minority suburban students into the KCMSD.
Security—The KCMSD proposes a budget of $1,897,037 for security. The KCMSD requests the addition of two clericals, two dispatchers, two patrol officers and an assistant to the Safety Manager. The KCMSD also requests overtime funding for approved desegregation budgets and the addition of five security vehicles. While this Court continues to believe that the primary responsibility for KCMSD security rests with the Kansas City Missouri Police Department, evidence at the hearing suggests that the KCPD is understaffed. Robert Livingston testified that personnel at the KCPD has not increased even though there has been a 300% increase in calls. Mr. Livingston concluded that the KCPD could not provide any additional help at this time.
There was substantial evidence regarding the number of calls and incidents at District schools, as well as the need for documentation and reports. The KCMSD clearly demonstrated the need for the additional security positions. The Court disagrees with the State’s position that adding security makes schools less desegregatively attractive. Instead, increased security should add to the attractiveness of a school which may be perceived as unsafe.
The Court notes that the budget for the addition of security vehicles should be calculated as $65,000 with the trade-in value of the replaced vehicles to be included in the $65,000 budget cap.
Special Education Compliance—The KCMSD proposes a budget of $990,044 for Special Education Compliance. The KCMSD suggests that the desegregation program has brought unique burdens to the KCMSD’s efforts to maintain compliance with State and Federal guidelines for providing equal educational opportunities. The State argues that this request goes beyond the parameters of a desegregation remedy. This is an issue of State and Federal compliance with which each school district in the State must comply. The Court will deny desegregation funds for Special Education Compliance because the KCMSD has not shown that the desegregation program actually has presented a greater burden to maintain special education compliance.
High School Prep—The KCMSD proposes a budget of $323,145 for continuation of the High School Prep program which the KCMSD initiated in 1991–92 and has funded out of its operating budget. The KCMSD maintains that the High School Prep program is a desegregation component because the District needs to improve the achievement levels within the system in order to attract non-minorities outside of the system.
The High School Prep program focuses on significantly overaged middle school students who have been retained in a grade for two or more years. The voluntary program is designed to reduce the drop-out rate among high-risk students. The KCMSD states that the program makes a critical contribution to the overall success of the desegregation remedy by providing an opportunity to accelerate the educational progress of over-age students who are immediately at risk of leaving the educational system. The program allows the student to re-enter the system at an age-appropriate level, substantially increasing the likelihood that the student will continue his education and graduate. The KCMSD notes that the program has been immensely popular.
*3 While the Court agrees that this program is vital to the KCMSD and should be continued, the Court cannot justify the use of desegregation funds to help remedy a nationwide problem which the KCMSD has not specifically shown to be a vestige of segregation.

Eight Period Day at Westport High School—Plaintiffs request a budget of $262,500 for the addition of an eight period day at Westport High School. Plaintiffs state that without an extra period students at Westport will not be able to take all of the required core curriculum courses and also be able to take two or three courses which would provide a more intense exposure to theme studies.
Playground Equipment at Faxon Montessori—Plaintiffs request a budget of $22,500 for playground equipment at the Faxon Elementary Montessori Magnet School. The original planning budget did not provide for the purchase of any playground equipment. Plaintiffs submit that this is a problem at a Montessori school with its popular early childhood program for three and four year old children.
Team Travel/Tournament Entrance Fees for Central High School—Plaintiffs request a budget of $45,000 for travel and tournament costs. The evidence at the hearing demonstrated that athletes in programs such as fencing and weightlifting have been so successful that the teams must travel substantial distances in order to find comparably skilled teams for meaningful competition. Steve Butler, one of the fencing coaches at Central High School, stated that the fencing team at Central High School is beginning to receive national as well as international attention. There is no doubt but that the success and notoriety of the athletic programs at Central High School will contribute to the desegregative attractiveness of the Classical Greek theme.
This Court will approve the following Year VIII budgets in addition to those components already stipulated to by the parties.

Proposed Year VIII Budget

KCMSD Obligation

Extended Day Effective Schools 1986–87 Magnets District Comm. Security Playground Eqpt.

453,000 7,250,000 8,001,410
31,125 1,897,037
22,500

113,250 1,812,500 3,745,050
7,781 739,844
5,625

District Comm. Security Playground Eqpt. CHS Team/Travel Westport Ext. Day

31,125 1,897,037
22,500 45,000 262,500 17,962,572

7,781 739,844
5,625 11,250 65,625 6,500,925

Also before the Court is the State’s motion to require the KCMSD to submit its proposal for a long-term extension of the LRMP in lieu of a proposal for a one-year extension. The KCMSD filed a motion for approval of the LRMP extension. Both parties filed responses and presented oral arguments on the issue on May 29, 1992. This Court will require the KCMSD’s LRMP proposal to be filed on or before September 1, 1992. It is important for students, patrons, parties and the Court to know which programs are effective and which programs should be changed or terminated.
Accordingly, it is hereby
ORDERED that the Year VIII Desegregation Budget is as follows:

Desegregation Budget

KCMSD Obligation

AAA Reduced Class Size Full Day

6,138,490

2,703,822

16,988,240

16,988,240

Reduced Class Size Full Day Kindergarten Summer School Early Childhood Education Interest Expense Maintenance
Extended Day Effective Schools 1986–87 Magnets District Comm.

16,988,240

16,988,240

1,880,137 2,334,374

470,034 583,595

4,451,351 593,500 4,233,527 36,619,619
453,000 7,250,000 8,001,410
31,125

1,112,038 593,500 4,233,527 26,684,756
113,250 1,812,500 3,745,050
7,781

Effective Schools 1986–87 Magnets District Comm. Security Playground Eqpt. CHS Team/Travel Westport Ext. Day
Total Desegregation Budget

7,250,000 8,001,410
31,125 1,897,037
22,500 45,000 262,500 17,962,572
54,592,191

1,812,500 3,745,050
7,781 739,844
5,625 11,250 65,625 6,500,925
33,185,681

*4 and it is further ORDERED that the KCMSD submit its Long Range Magnet Plan on or before September 1, 1992.
All Citations Not Reported in F.Supp., 1992 WL 551569

 
 1992 WL 551568 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
June 25, 1992.
ORDER
RUSSELL G. CLARK, Senior District Judge.
*1 Before the Court is the AFT’s proposal for desegregation funding for teacher salary increases for fiscal years 1992–93 through 1994–95. The KCMSD filed a separate salary proposal for 1992–93. The State filed a response to both proposals. The parties filed subsequent replies and responses to the proposals. The Court set this matter for a hearing on June 9–12, 1992 and will approve a teacher salary package as set forth below.
At the end of the current fiscal year, desegregation funding for both the 1987 teacher salary package and the 1990 salary increase settlement will expire. If desegregation funding for salaries is not extended, teacher salaries will roll back to 1986– 87 levels. The AFT has proposed a salary increase to keep the KCMSD competitive with the national urban market. The KCMSD has proposed to maintain salaries at their current levels with moderate equity adjustments. The State has proposed that this Court roll back teacher salaries to their 1986–87 levels because the salary increases have not met the goals set by the Court.
AFT SALARY PROPOSAL The AFT’s salary proposal requests that continued and increased desegregation funding of teacher salaries is necessary in order to assure equitable and effective implementation of the desegregation plan. The AFT proposes to raise salaries to levels that are competitive with the national urban market. Specifically, the AFT requests that the Court establish teacher salary schedules for the next three years at a level at least equal to the projected national urban average teacher salaries. The AFT also suggests that the KCMSD redirect under-expended resources out of other desegregation programs and into the budget for teacher salaries.
The AFT and the KCMSD assert that the most relevant market for setting teacher salaries in the KCMSD is the national urban school market. The AFT and KCMSD suggest that urban districts throughout the country provide a more meaningful comparison with the KCMSD in terms of size of budget, enrollment, employees, inner-city working conditions, minority/ non-minority enrollment patterns, socio-economic levels and special needs of urban versus suburban student bodies. The surrounding local suburban school districts do not provide this same type of useful comparison.
The AFT asserts that setting salaries that are competitive with the national urban market is necessary so that the District can retain and attract high quality teachers. The AFT stresses that high quality teachers are essential to successful implementation of the desegregation plan. The AFT proposes that current KCMSD teacher salaries be restructured and increased so that the District will be comparable to or higher than average salaries paid in urban school districts throughout the United States.
The State disagrees that the national urban market is the most relevant market for purposes of comparison. The State of Missouri argues that the relevant labor market for teachers in the KCMSD is the “regional market.” The “regional market” is

defined as Missouri and the eight states contiguous to Missouri: Kansas, Nebraska, Iowa, Illinois, Kentucky, Tennessee, Arkansas, and Oklahoma. The State’s view is based on the origin of actual hires.
*2 Recruitment efforts by the KCMSD indicate that the District recruits on a national level and the pool of certified applicants indicate that the District competes at a national level. After the 1990 salary order, 20.9 percent of the applicants were from Missouri, 23.2 percent of the applicants were from the eight contiguous states, 35.3 percent of the applicants were from other States and 20.7 percent of the applicants were from unknown origin. See AFT Ex. 28. This Court does not accept the State’s contention that in order to find that the District competes in the national urban market, the District must show that it actually hires a substantial number of teachers or personnel from the national urban market. Also, Kansas City, Missouri is a part of the national urban market and other national urban cities are competing for Kansas City’s teachers and staff. Therefore the Court agrees with the AFT and KCMSD that the national urban market is the most relevant market for purposes of comparing salaries in the KCMSD.
The AFT recommends that the best measure of the national urban market for teachers is the Department of Defense (“DOD”) salary schedule which is based upon the average salaries of all urban school systems in cities of 100,000 or more population in the United States. Each year the DOD compiles a database of teacher salaries paid in approximately 170 urban school districts in the United States.
The AFT presented evidence that teacher salaries in the District lag significantly below the national urban average. According to the most recent statistics, teacher salaries in the national urban market have increased approximately 6.71% each year in the last eighteen years. In terms of the dollar differences, the gap between KCMSD teacher salaries and the national urban average today is close to the gap that existed in 1986–87, before any desegregation funding for salaries was provided by the Court. See AFT Proposal at 21.
Thus, in the current 1991–92 school year, the gap between KCMSD teacher salaries and the actual and projected urban average salaries is considerable and will worsen unless significant salary increases are authorized and funded. For example, KCMSD salaries for beginning teachers in the B.A. and M.A. salary lanes are currently below the national urban average by approximately 4%. See AFT Ex. 14. At the top end of the B.A. and M.A. lanes the KCMSD’s most experienced teachers are currently earning, respectively, about 19% and 14% less than the national urban average. See AFT Ex. 14. The AFT cautions that if teachers are paid at the same level in 1992–93, the KCMSD’s ability to compete in the marketplace for teaching talent will be diminished even more severely.
Moreover, if the current salary increase orders are allowed to expire on June 30, 1992, teacher salaries for the 1992–93 school year will fall from a starting salary of $22,215 to just over $17,000. The net result of a roll back would be that the KCMSD would be forced to compete in the national urban market for beginning teachers at a 40–45% disadvantage. See AFT Ex. 31. The AFT warns that if current salaries are allowed to expire, salaries will revert to a level which will result in intolerable consequences for the desegregation plan. Such a roll back would place the KCMSD teacher salary schedule thousands of dollars behind any comparable school district and would devastate the District’s ability to attract and retain teachers. The AFT fears that a roll back would essentially paralyze the District’s ability to recruit and retain quality teachers who are vital to the desegregation program.
*3 Art Rainwater, Associate Superintendent for Instruction, testified that a roll back would cause a number of teachers to defect to other markets and would definitely hurt the desegregation program. A salary decrease of this proportion could cause a mass exodus of District employees. Those teachers who could not leave the system would likely suffer from internal morale problems which might be passed on to the schoolchildren. A salary roll back would inevitably affect the attitudes of teachers who stayed in the District.
The AFT’s proposal would remedy other inequities in the current KCMSD salary schedule. In the current KCMSD teacher salary schedule there are a number of non-uniform salary steps. For example, when a teacher in the B.A. salary lane moves from step to step, he or she normally receives a raise of $778.00. However, when moving from step four to step five in the B.A. lane, the teacher receives a raise of $888.00. When moving from step five to step six the teacher gets a raise of $667.00. There has been no explanation for these arbitrary differences between steps.
The AFT also urges that adoption of the DOD national urban market teacher salary schedule would permit the KCMSD to reform its current salary schedule by adding step increases for years of experience or “longevity” steps. Longevity steps are found in most urban salary schedules. The AFT proposes that the Court remedy disparities at the top end of the salary schedule by adding longevity steps. Longevity steps would account for additional salary shortfalls as compared to the

national urban average.
Another problem with the absence of step increases in the KCMSD salary schedule is that there are salary inequities among similarly-situated teachers. Teachers within the District have been frozen at their current levels for two years. For example, a teacher who began her teaching career in the KCMSD and has taught for ten years would be paid at step nine instead of step eleven. However, a teacher who taught for ten years in another school before being hired to teach in the KCMSD this year would be paid at step eleven. A two-step differential could result in a pay scale difference of $1,444 to $2,443 per year. Testimony at the hearing indicated that these types of inequities cause morale problems within the District and lead to internal dissatisfaction with the system. In turn, this leads to ineffective implementation of the desegregation program.
In summary, the AFT requests that this Court adopt the national urban average as the relevant market in which the KCMSD competes for teachers, administrators and staff. The AFT proposes to raise salaries, eliminate step inequalities and add step increases for teachers. The AFT also proposes to raise salaries of all categories of classified personnel: paraprofessionals, administrators, professionals, technical, clerical, security, nurses, food service, operating, building managers, cafeteria managers, information systems, miscellaneous schedule five employees, part-time workers, operating, maintenance, and parent educators.
*4 The AFT urges this Court to order funding that will allow teachers to earn their regular hourly rate of pay for participating in workshops and inservice training outside of their regular work schedule. The AFT disagrees with the KCMSD that if current salary levels are maintained for 1992–93, the salaries will be roughly competitive with the national urban market. Finally, the AFT foresees particularly drastic consequences if salaries are rolled back to their 1986–87 levels.
KCMSD SALARY PROPOSAL Due to the dire fiscal constraints currently facing the District, the KCMSD submitted a one-year proposal instead of supporting the AFT’s three-year proposal. The KCMSD believes that the salary increases proposed by the AFT are larger than the District can responsibly propose at this time. The KCMSD teacher salary proposal requests that this Court maintain current salaries and provide for minor equity adjustments for those positions which are paid substantially below relevant market rates.
The KCMSD proposes to maintain inservice programs for teachers in the 1990 salary package and continue inservice training for paraprofessionals. The District strongly believes that inservice training provides a valuable opportunity to develop themerelated expertise and to share teaching innovations which enhance the quality of curriculum offerings. The KCMSD’s salary proposal would extend the work year for elementary principals by fifteen days to provide additional time for leadership and magnet theme training. In the past, many elementary principals have spent several uncompensated days addressing the needs of their schools. In addition, the KCMSD salary plan proposes to continue paying substitutes $75.00 per day, continue compensation for supervision of extra-curricular activities and maintain a reserve fund in the amount of $500,000.
The District’s proposal offers a fiscally conservative, yet roughly competitive compensation plan for 1992–93. The KCMSD is confident that its proposal would enable District personnel to continue to attract and retain highly qualified personnel necessary to implement the desegregation plan.
STATE SALARY PROPOSAL The State of Missouri responded to the salary proposals with a request that this Court discontinue desegregation funding for teacher salaries. The State asserts that its analysis of the effect of the 1990 salary increase demonstrates that the salary increase did not achieve its objectives. For instance, the State submits that the increase had virtually no effect on increasing the quality of new hires or decreasing the quality of staff who left the District. The State claims that the AFT and the KCMSD have virtually ignored the evaluative criteria approved by the Court.
The State concludes that the salary increases have had no demonstrable effect on improving the KCMSD’s ability to implement the desegregation remedy and therefore the Court should allow salaries to roll back to the 1986–87 levels. The State suggests that continuation of salary increases would constitute an unauthorized upgrade of District operations under the guise of desegregation. The State submits that to the extent KCMSD resident taxpayers wish to support the school system, they should be given an opportunity to show that support by approving an operating levy increase sufficient to support the existing salary levels.

*5 The State adds that quite apart from its position that increasing salaries is not desegregation related, the AFT has presented no evidence that the KCMSD is having any great difficulty recruiting nurses. The State maintains that health care for students is not related to the desegregation effort and that the school nurse issue is beyond the parameters of the resolution the DMC passed regarding the salary issue.
For that matter, the State maintains that all other categories of classified personnel for whom the AFT seeks salary increases are also non-instructional personnel, with the possible exception of paraprofessionals. The State argues that there is no data that the KCMSD is having difficulty attracting and retaining these personnel.
RESULTS OF THE SALARY INCREASES Pursuant to this Court’s previous orders, the KCMSD agreed to collect and report appropriate data regarding the results of the District’s recruiting efforts and to implement reorganization of personnel recruiting efforts by adopting a personnel recruitment plan and schedule. The Court also approved the use of eighteen evaluative criteria as a means to assess the effects of the salary increases approved in the July 23, 1990 Order. The Court noted that the evaluative criteria, which were designed to identify trends, should not be construed as setting “absolute numerical requirements or bright lines.” Id. at 6.
The AFT, KCMSD and the State have interpreted the results of the data differently. The AFT and KCMSD contend that the data generally indicate that the salary increases assisted the KCMSD in becoming more attractive to higher quality personnel needed to implement the desegregation orders. The KCMSD emphasized that the results should be viewed in the context that the 1990 salary package did not provide a competitive salary advantage to the District but instead helped to alleviate a substantial and growing competitive disadvantage.
One issue of major contention was whether or not the salary increase had an effect on the District’s ability to recruit and retain teachers. The District maintains that while salary may not be the sole factor in the KCMSD’s recruiting and retention experience, no data are required to support the sound and logical conclusion that if salaries had lagged more than twenty percent below their current levels, it would have been considerably more difficult to attract and retain even nominally qualified and experienced personnel.
The KCMSD asserts that since the salary increase, more new hires have cited salary as their reason for selecting the KCMSD. See KCMSD Exs. 12, 14 and 15. However, the State’s expert, Dr. Gold, asserts that the primary selection criteria for choosing to work at the KCMSD was “non-salary based.” The District submits that this claim is not supported by the survey data which show that salary was identified as the number one reason newly hired certified personnel selected the KCMSD. See KCMSD Ex. 11. More newly hired classified, administrative and professional staff also identified salary as their reason for selecting KCMSD after the salary increase. See KCMSD Exs. 12 and 13.
*6 The KCMSD argues that Dr. Gold’s conclusion is a result of the manner in which he combined certain reasons for selecting the KCMSD. The survey provides eight reasons for selecting the KCMSD: salary, family relocation, location, magnet plan, specific magnet program, benefits, KCMSD reputation and other. Dr. Gold combined “family relocation” with “location” and he combined “magnet plan” with “specific magnet program.” He also separated “salary” and “benefits.” Dr. Gold’s results indicated that location and program-related interests are the primary selection criteria.
Regardless of whether salary is the primary reason for selecting the KCMSD, the results show that salary is a significant factor in the selection process. In light of the growing disparity between KCMSD salaries and salaries in the national urban market, it is no surprise that location and program-related interests are also significant factors which attract teachers to the KCMSD.
At the hearing, the State also presented evidence regarding the results of other data as applied to the eighteen evaluative criteria. The State’s experts generally concluded that the salary increase did not produce statistically significant effects or trends. One aspect of the State’s analysis used a “quality index” which combined years of experience, degree and most recent degree grade point average as a basis to determine the quality components included in some of the eighteen evaluative criteria.
The “quality index” was criticized for its limited value in measuring objective quality criteria. The AFT and the KCMSD emphasized that the index could not measure quality factors such as personality, charisma, motivation or enthusiasm. Nor did the quality index account for a teacher’s entire undergraduate grade point average, the prestige of a particular university, other

interests, honors or publications. Therefore, while the parties agreed that the quality index is comprised of important factors in determining the quality of a teacher, it is by no means representative of the whole spectrum of desirable teacher “qualities” that are considered in the hiring process.
The “quality index” does not necessarily demonstrate that the District was unsuccessful in hiring and retaining quality staff. Instead it may show that it is impossible to evaluate the true quality of teachers with three objective criteria. The quality index formula measures quantifiable factors of acknowledged relevance. Yet, these factors alone are an imperfect yardstick by which to measure the quality of thousands of individual teachers at the KCMSD.
The State concludes that the salary increase has not met the goals set by the Court and the salary increase should not be continued or expanded. The State insists that the lack of statistically significant trends in improvement signals the death knell for continued Court-ordered funding.
FUNDING PROPOSALS Logic and empirical data show that in the absence of desegregation funding for salaries, the District will not be able to implement its desegregation plan. The AFT and KCMSD agree that the salary proposal adopted by the Court should be approved as a desegregation expense. The AFT requests that this Court impose joint and several liability with the State to pay 75% of the cost and the KCMSD to pay 25% of the cost. The AFT requests a three-year extension of the existing 96–cent property tax. The KCMSD urges the Court to approve its proposal as a desegregation expense with the State contributing 75% and the District contributing 25%. The KCMSD proposes to fund its share with a continuation of the 96–cent tax levy. The KCMSD’s proposal would cost approximately $49.7 million and the AFT’s proposal would add another $17.5 million for a total proposal of approximately $67.2 million.
*7 The State claims that the Court should not approve desegregation funding for salaries because such funding would be beyond the scope of the Court’s remedial authority. However, the Supreme Court has recently stated that “[t]he essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action.” Freeman v. Pitts, 112 S.Ct. 1430 (1992). It is well-settled that a district court may require the expenditure of funds to implement a desegregation remedy. See Milliken v. Bradley, 433 U.S. 267 (1977).
This Court and the Eighth Circuit have “made abundantly clear ‘that the constitutional violations must be remedied and these remedies fully funded.’ ” Jenkins v. Missouri, 931 F.2d 470, 476 (8th Cir.1991), cert. denied. 112 S.Ct. 437 (1991). “[A] court is entitled to require money for programs that materially aid the success of the overall desegregation effort.” See Arthur v. Nyquist, 712 F.2d 809, 813 (2d Cir.1983).
In 1989, this Court concluded that the KCMSD’s difficulty in hiring and retaining qualified personnel adversely affected the desegregation plan. This Court previously expressed concern about the District’s ability to implement the desegregation plan in light of its salary structure. July 5, 1989 Order at 23. In approving the 1990 salary package, this Court found that the salary increases for KCMSD personnel were “essential to comply with the Court’s desegregation orders.” July 23, 1990 Order at 6.
High quality personnel are necessary not only to implement specialized desegregation programs intended to “improve educational opportunities and reduce racial isolation” Jenkins v. Missouri, 855 F.2d 1295, 1301 (8th Cir.1988), aff’d in part, rev’d in part on other grounds, 495 U.S. 33 (1990), but also to “ensure that there is no diminution in the quality of its regular academic program.” Jenkins v. Missouri, 672 F.Supp. 400, 410 (Mo.1987), aff’d, 855 F.2d 1295 (8th Cir.1988).
The KCMSD asserts that funding of the 1992–93 salary package as a desegregation expense is premised on the Court’s findings that the District has difficulties “hiring and retaining qualified personnel” which, in turn, negatively affect implementation of the desegregation remedy. There is no question but that a salary roll back would have effects that would drastically impair implementation of the desegregation remedy.
1992–93 TEACHER SALARY PACKAGE The Court will adopt the KCMSD’s salary proposal to maintain salaries for the 1992–93 school year, provide moderate equity adjustments, add fifteen days to the school year for elementary principals, maintain inservice training, maintain substitute pay, maintain extra-curricular pay rates and maintain a reserve fund. The Court will approve a joint and several funding

allocation of 50%/50% between the State and the KCMSD. *8 The KCMSD salary proposal is as follows:

PROPOSED

CURRENT AMOUNT ALLOCATED

ADDITIONAL FUNDS NEEDED

Maintain Current Teacher Salary
Level for Teachers Currently
Budgeted
Provide Current Teacher Salary
Level For Teachers Projected
For Year VIII
Maintain Current Salaries of
Other Employees

35,016,077

33,417,873

1,598,204

564,715

0

564,715

10,654,870

9,166,659

1,488,211

Level For Teachers Projected For Year VIII Maintain Current Salaries of Other Employees Provide Equity Adjustments Lengthen School Year for Elementary Principals Maintain Inservice Days for New Teachers Provide Five Days of Paraprofessional Inservice Maintain Substitute Rate at $75 Per Day Maintain Extra–Curricular Pay Rates

564,715

0

564,715

10,654,870 1,102,388

9,166,659

1,488,211

0

1,102,388

231,866

0

231,866

261,746

213,638

48,108

220,688

220,688

0

621,130

450,000

171,130

568,911

675,000

(106,089)

$75 Per Day Maintain Extra–Curricular Pay Rates Reserve TOTAL

621,130

450,000

171,130

568,911

675,000

(106,089)

500,000

656,142

(156,142)

49,742,391

44,800,000

4,942,391

The additional funds needed for current teacher salary levels are for the cost of two summer school sessions, current vacancies, lane changes and fringe benefit increases. The District also estimates that there will be approximately 53 new teacher positions. These figures could change based on actual enrollment. The budget for maintenance of current salaries for other employees is increased slightly to include vacancies, new positions, overtime costs and revised fringe benefits rates.
The internal equity study cost projections for 1992–93 are as follows:

Executive Secretaries Secretary A’s Secretary B’s Clerks Admin. Staff Nurses

69,564 479,176 263,205 216,179
44,498 29,765 1,102,388

Admin. Staff Nurses

44,498 29,765 1,102,388

The State declares that, with the proposition of a salary roll back, “[the State] is not so naive as to believe” that the Court will not consider “the discomfort of those whose salaries would be reduced.” State Post–Hearing Brief at 34. However, the basis for this Court’s ruling is grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD. In order to improve the desegregative attractiveness of the KCMSD, the District must hire and retain high quality teachers, administrators and staff.
The success of the prior salary orders has been described as “qualified.” Yet, the Court agrees with the KCMSD and the AFT that the results must be viewed in the context of how KCMSD teacher salaries actually compared with the national urban average teacher salaries. The State argues that the AFT and the KCMSD have improperly focused on the effect of a roll back. However, this is a relevant consideration. The success of the desegregation program rests in great measure upon those charged with implementing the plan.
In light of the District’s current financial crisis, this Court will maintain salaries at their current levels for the 1992–93 school year and continue the 96–cent levy increase for an additional year. At this time, the AFT’s proposal is simply not economically feasible. However, this Court rejects the State’s proposition that “to tie salaries for employees to an asserted national urban market would be a gross misuse of public funds.” State Post–Hearing Brief at 5. Instead, the substantial increase sought by the AFT should be deferred.
*9 The State’s proposal would cause severe harm to the desegregation effort. It is critical to the success of the desegregation plan that the employees who carry it out are compensated at or near the relevant market rates of compensation so that the District can attract and retain employees with the training and experience necessary to implement the Court’s plan. A salary roll back would result in excessive employee turnover, a decline in the quality and commitment of work and an inability of the KCMSD to achieve the objectives of the desegregation plan.
Accordingly, it is hereby
ORDERED the KCMSD’s salary proposal for 1992–93 is approved as follows:

PROPOSED

ALLOCATED

CURRENT AMOUNT NEEDED

ADDITIONAL FUNDS

Maintain Current Teacher Salary Level for Teachers Currently Budgeted Provide Current Teacher Salary Level For Teachers Projected For Year VIII Maintain Current Salaries of Other Employees Provide Equity Adjustments Lengthen School Year for Elementary Principals Maintain Inservice Days for New Teachers

35,016,077

33,417,873

1,598,204

564,715

0

564,715

10,654,870 1,102,388

9,166,659

1,488,211

0

1,102,388

231,866

0

231,866

261,746

213,638

48,108

Lengthen School Year for Elementary Principals Maintain Inservice Days for New Teachers Provide Five Days of Paraprofessional Inservice Maintain Substitute Rate at $75 Per Day Maintain Extra–Curricular Pay Rates Reserve TOTAL

231,866

0

231,866

261,746

213,638

48,108

220,688

220,688

0

621,130

450,000

171,130

568,911

675,000

(106,089)

500,000

656,142

(156,142)

49,742,391

44,800,000

4,942,391

and it is further
ORDERED that the KCMSD is authorized to maintain its property tax levy at a rate of $4.96 per $100 assessed valuation for the 1992–93 tax year; and it is further
ORDERED that funding for the 1992–93 salary package will be 50%/50% joint and several liability between the State and

the KCMSD.
All Citations Not Reported in F.Supp., 1992 WL 551568

 
 967 F.2d 1245 United States Court of Appeals,
Eighth Circuit.
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, 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; Appellees, American Federation of Teachers, Local 691, Appellee,
v. The STATE OF MISSOURI; Honorable John Ashcroft, Governor of the State of Missouri; Wendell Bailey, Treasurer of the State of Missouri; Missouri State Board of Education, Roseann Bentley, Rev. Raymond McCallister, Jr., Susan D. Finke, Thomas R. Davis (Presiding), Gary D. Cunningham, Rebecca M. Cook, Sharon
M. Williams, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, Appellees, and
School District of Kansas City, Missouri and Claude C. Perkins, Superintendent thereof, Appellees, Icelean Clark; Bobby Anderton; Eleanor Graham; John C. Howard; Craig Martin; Gay D. Williams; Kansas City
Mantel & Tile Co.; Coulas and Griffin Insurance Agency, Inc.; Lucille Trimble; Berlau Paper House, Inc.; and Andrew J. Winningham, Appellants.
No. 90–2461. |
Submitted June 25, 1991. |
Decided June 30, 1992.
Synopsis In school desegregation case, the United States District Court for the Western District of Missouri, Russell G. Clark, Senior District Judge, approved partial settlement agreement whereby tax on property within school district would be raised to pay salary increases for school district employees. Property owners appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that property owners’ notice of appeal was not effective since property owners were not parties to suit, did not move to intervene until time for appeal had already expired, and there was no underlying appeals in which property owners could intervene.
Appeal dismissed.
See also 967 F.2d 1248.
Attorneys and Law Firms
*1246 Mark J. Bredemeier, Kansas City, Mo., argued (Mark J. Bredemeier, Jerald L. Hill and Richard P. Hutchison, on the brief), for appellants.
Bart Matanic, Jefferson City, Mo., argued (David S. Tatel, Patricia A. Brannan, Daniel B. Kohrman and Kevin J. Lanigan, Washington, D.C., Michael Thompson, Arthur A. Benson II and Doyle R. Pryor, Kansas City, Mo., and Michael J. Fields, Jefferson City, Mo., on the brief), for appellees.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion

JOHN R. GIBSON, Circuit Judge.
Icelean Clark et alia appeal from the district court’s1 approval of a partial settlement in the Kansas City school desegregation case, Jenkins v. Missouri, No. 77–0420–CV–W–4. On July 23, 1990, the district court approved an agreement of the parties to the suit whereby the tax on property within the Kansas City, Missouri, School District would be raised $.96 per $100 of assessed valuation to pay for salary increases for KCMSD employees. The Clark group consists of various property owners within the district who object to the decision to raise taxes in this way. Before we can reach the propriety of the settlement, we must first decide whether this *1247 appeal lies, since there is question as to whether the Clark group filed an effective notice of appeal. As we conclude that it did not, we need not consider the substantive questions here presented. We dismiss the appeal.
The chronology of events leading up to this appeal is crucial to our holding. On July 3, 1990, the district court entered an order announcing a proposed settlement by the parties to the Jenkins litigation of certain issues involving KCMSD employee salary raises and a $.96 property tax increase that would be levied in the district, in part to fund the salary increases. The court held a hearing on the proposed settlement on July 17 and the Clark group’s counsel argued against the settlement at the hearing. The district court approved the settlement on July 23, and the Kansas City school board actually voted to levy the tax on August 20.
On August 22, within the thirty day period for filing a notice of appeal, Fed.R.App.P. 4, the Clark group filed such a notice. At that point not only were they not parties to the suit, but they had not moved to intervene. On August 28, they finally moved to intervene “for the limited purpose of seeking appellate review of the July 23, 1990 order.” The district court granted their motion on October 23, 1990, stating that the Clark group was entitled to intervene as of right under Fed.R.Civ.P. 24(a) (2) since under the settlement they would suffer a pecuniary loss and since no party to the action adequately represented the taxpayers’ interests. Order of Oct. 23, 1990, slip op. at 2–6. The district court held that the motion to intervene was timely, stating that “once final judgment was entered, the taxpayers had a legal interest which satisfied the requirements of Rule 24.” Id. at 6.
About the time the district court granted the motion to intervene, this court dismissed the Clark group’s appeal for lack of jurisdiction because the would-be appellants were not parties to the Jenkins suit. Order of October 26, 1990. The Clark group sought rehearing and filed a second notice of appeal on November 23, 1990, some four months after the order appealed from. We obtained additional briefing and heard oral argument on the jurisdiction issue and the merits of the appeal.
We conclude that our initial assessment of the matter was correct—that no effective notice of appeal has been filed to confer jurisdiction on the court. When the Clark group filed its first notice of appeal, its members were not parties to this suit and had not even asked to become parties. “The rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 587, 98 L.Ed.2d 629 (1988) (per curiam). Accord Karcher v. May, 484 U.S. 72, 77, 108 S.Ct. 388, 392, 98 L.Ed.2d 327 (1987); United States v. City of Oakland, 958 F.2d 300, 301–02 (9th Cir.1992).
There are some exceptions to this rule; for instance, a non party may appeal an injunction that purports to bind the non party, Thompson v. Freeman, 648 F.2d 1144, 1147 n. 5 (8th Cir.1981). See generally 9 James W. Moore et al., Moore’s Federal Practice ¶ 203.06 (2d ed. 1991). The Clark group does not argue that any exception to the rule makes intervention unnecessary. The group does, however, cite to Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (en banc), cert. denied, 478 U.S. 1022, 106 S.Ct. 3337, 92 L.Ed.2d 742 (1986), in which a member of a defendant class was permitted to appeal a judgment after the class representative abandoned its appeal on behalf of the class. After filing his notice of appeal as a non party, the class member moved for, and was granted, intervenor status in the Court of Appeals, and the Fifth Circuit decided the appeal on the merits. 769 F.2d at 291–92. Wade is distinguishable from this case, since a party had initiated the appeal. Judge Rubin’s dissent in Wade points out that the majority did not hold that the non party class member’s appeal was properly lodged, but rather that he would be permitted to intervene in the appeal first lodged, then abandoned by the class representative. 769 F.2d at 295. There was no underlying appeal in this case for the Clark group to intervene in; and, in any case, we are not persuaded that *1248 the Wade case was correctly decided, for reasons stated in Judge Rubin’s dissent. 769 F.2d at 293–97.
We conclude that the first notice of appeal, filed before the intervention motion, was ineffective to confer jurisdiction on this court. The second notice of appeal was filed grossly out of time, with no attempt made to obtain any extension of the deadline

for noticing the appeal. See Fed.R.App.P. 4(a)(4).
Thus, we have no jurisdiction over the appeal.
The Clark group’s arguments cannot muddy these clear waters. The Clark group argues that it has been placed in a “procedural box from which there is no escape.” They argue that they had no “justiciable interest” that had been “impair[ed]” until the school board voted to levy the $.96 increase on August 20, and that therefore it was impracticable for them to move for intervention before the time for appeal ran on August 22. This argument mistakes the nature of the “interest” requirement of Rule 24(a), and of the very concept of intervention. The language of the rule itself contemplates that the affected party can intervene in proceedings that “may” affect him before harm is done by execution of a court order. See Little Rock School Dist. v. Pulaski County Special School Dist., 738 F.2d 82, 84 (8th Cir.1984) (“The rule does not require, after all, that appellants demonstrate to a certainty that their interests will be impaired in the ongoing action. It requires only that they show that the disposition of the action ‘may as a practical matter’ impair their interests.”) (emphasis in original). A party claiming an interest in the litigation does not have to wait until he has suffered irreparable harm before he has an interest permitting intervention under Rule 24(a). The Clark group had clear notice as early as July 3 that all the parties to the litigation had agreed to the tax hike. On July 23 the court approved the settlement; at that time (at the very latest) the taxpayers had an interest protectible by intervention as of right.
The Clark group further argues that even if its members had moved to intervene sooner, they probably would not have received a ruling from the district court on their motion in time to file a notice of appeal. We have no way of knowing whether they would have received such a ruling in time to appeal, because they made no motion at all until the time for appeal was already gone. See United Airlines, Inc. v. McDonald, 432 U.S. 385, 396, 97 S.Ct. 2464, 2471, 53 L.Ed.2d 423 (1977) (holding a motion to intervene for purposes of appeal was timely because it was filed within the period in which the parties could have taken an appeal); In re Grand Jury Proceedings (Malone), 655 F.2d 882, 885 n. 2 (8th Cir.1981) (motion to intervene in appeal filed within time to appeal). If they had moved promptly for intervention, and perhaps had asked for an expedited decision or an extension of the time to appeal, Fed.R.App.P. 4(a)(5), the “procedural box” argument would have considerable force. Since they did none of those things, we are not troubled by this argument.
In light of the Clark group’s failure to make a timely motion to intervene and the consequent failure to file a timely notice of appeal, the district court’s October 23, 1990, ruling granting the group intervenor status cannot breathe life into rights already foregone.
We therefore dismiss the appeal for lack of jurisdiction. As an epilogue, we observe that though we do not reach the merits of this appeal due to jurisdictional defect, we have studied the parties’ briefs and they demonstrate that we are being asked to review an order for abuse of discretion. Were we to consider this issue, suffice it to say that no showing has been made that there was an error of law or an abuse of discretion in approving the settlement.

All Citations 967 F.2d 1245, 22 Fed.R.Serv.3d 1108

Footnotes

1

The Honorable Russell G. Clark, Senior United States District Judge for the Western District of Missouri.

 
 1993 WL 546576 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
June 30, 1993.
ORDER
RUSSELL G. CLARK, Senior District Judge.
*1 This matter comes before the Court on the American Federation of Teachers, Local 691’s (“AFT”) motion for desegregation funding for certified and classified employee salary increases in Fiscal Years 1993–94 through 2002–3; AFT’s motion for desegregation funding for operating, warehouse, maintenance, mailroom, and food service employee wage increases in fiscal years 1993–94 through 1995–96; the Kansas City Missouri School District’s (“KCMSD”) motion for desegregation funding of its salary proposal for 1993–94 through 1995–96; the State of Missouri’s (“State”) motion for an order expressly establishing the State’s right of contribution; and the State’s motion to strike the plaintiffs’ pleading filed post-hearing or in the alternative for leave to file a response to said pleading. This matter has been the subject of extensive briefing by the parties. The State has responded by way of its consolidated response in opposition to AFT’s and KCMSD’s salary motions. The KCMSD and AFT have each replied to the State’s memorandum in opposition to the motions. A hearing was held on June 1–3, 1993 and the Court received evidence on the issues presented in the above referenced pleadings. The plaintiffs filed a post-trial memorandum in support of desegregation funded salary increases for KCMSD employees. The State has filed a motion to strike plaintiffs’ pleadings or in the alternative for leave to file a response. The Court, after reviewing the evidence presented at trial and after a thorough examination of the pleadings submitted by the parties, will grant the AFT’s motion in part and deny it in part; grant the KCMSD’s motion in part and deny it in part; deny the State’s motion to strike; grant the State’s motion for leave to file a response to plaintiffs’ post-hearing memorandum; and defer ruling on the State’s motion for an order establishing a right of contribution as set out herein.
The Court has previously addressed the issue of “law of the case” to the extent that it applies to the evidence presented herein. The Court announced to the parties at the trial of these issues that the “law of the case” doctrine applies only where the district court has decided an issue and that issue has been presented to and resolved by an appellate court. The same issues as those presented this year in the salary hearing were presented last year and are currently on appeal to the Eighth Circuit Court of Appeals. That being the case, the “law of the case” doctrine will not operate to bar the Court from considering the evidence and deciding the issues again this year. However, the Court is not inclined to make a different ruling where the evidence presented is substantially unchanged. The Court has reviewed the evidence in its entirety and finds that the evidence presented this year is strikingly similar to the evidence presented last year. Therefore, the Court will not change its rulings with respect to the issues contested by the State in this year’s hearing. There is no basis to find that the KCMSD is no longer in the national urban market nor that salaries of KCMSD personnel are not appropriately considered to be a desegregation expense. The Court does have inherent authority to modify its remedy in this matter. It is the intention of the Court to modify the salary component of the desegregation remedy as set out below.
*2 Due to the insignificant, if any, change in the evidence from last year to this year the Court will not elaborate on the evidence adduced at the trial on this issue. Rather, it is the Court’s intention to fashion a salary order which is appropriate under the continued climate in the district. The one glaring problem made obvious by the testimony at this year’s hearing is the absence of the step increases over the last three years. The inequality created by the missed step increases is a fundamental flaw in the compensation package in the KCMSD. It is the purpose of this Order to rectify the inequality and

allow those missing steps to be recompensed. The proposal of the AFT was to reinstate the lost steps over a period of three years. While this proposal would reduce the initial outlay of funds, it would not immediately correct the inequality in the salary package. The Court also notes that the immediate adjustment for lost steps would lessen the long-run costs in the salary component, albeit by a relatively small amount. Therefore, the Court will order that the KCMSD make reparation to those individual employees currently employed by the district who have not been afforded step increases due to the structure of the salary package.
The next issue raised in this litigation was whether the KCMSD participated in the national urban market. The Court has previously held that the KCMSD did, in fact, compete in the national urban market for teachers. The State, again this year, sought to present evidence to the contrary. However, if anything, the State’s expert witnesses supported the proposition that the District did compete in a national urban market. The Court finds no reason to alter its previous findings and would therefore reaffirm its finding that the KCMSD competes in the national urban market for teachers.
The Court has found that the underlying issues of whether the national urban market is correctly applied, whether the salary component is properly a desegregation expense, and whether salary increases have a positive impact on the desegregation effort should be resolved again this year in the same manner as last. The Court, having found that the salary increases are a necessary component of the desegregation program, must now determine the extent to which a raise would be appropriate this year.
State’s Plan
The State submitted to the Court a plan by which the KCMSD classroom teachers and other instructional personnel would receive a 1% increase of their base salary for FY1994 + $400. The Court, again, finds that the State has failed to bring to the Court a serious proposal for the issue currently pending. This proposal is reminiscent of “patch and paint” or “OBE in three schools in place of the magnet program”. The State’s proposal is simply not consistent with the meaningful implementation of the desegregation program. The State has argued repeatedly and currently on appeal that the salary component is not a valid component of the desegregation remedy. The State has every right to maintain its position. However, the State has the ability to offer a reasonable alternative while not jeopardizing its legal arguments currently on appeal. The proposals of the State have been of little or no benefit in the past and are of painfully little aid to the Court in this instance, as well. Therefore, it is left to the Court to craft a viable alternative given the constraints facing the district at this point in time.
*3 The Court will note that the testimony at trial reflected that the Missouri Legislature has had five years to pass legislation which would enable the KCMSD to fund its share of the desegregation expenses. While the State has not passed such legislation, as of this date, the Legislature has inserted a line item in this fiscal year’s budget to reflect the anticipated costs of a salary increase. The Court notes with approval the State’s effort to maintain its fiscal responsibility in this area.
The Court has previously found that the AFT’s proposal for 1992–93 was not economically feasible at the time but that the Court, if able, would provide for much of the salary increases proposed by the AFT. Additionally, the Court specifically rejected “the State’s proposition that ‘to tie salaries for employees to an asserted national market would be a gross misuse of public funds.’ ” (June 25, 1992 Order, at 16). Here again, the Court is compelled to consider the same alternatives. There is one major difference. The persons for whom raises are sought have foregone yet another year without salary adjustments.
AFT’s Plan
The AFT has submitted a proposal for certified and classified personnel to receive additional compensation as per the following scenarios. First, it is suggested that the Court adopt the 1992–1993 DOD salary schedule in 1993–94. Additionally, the AFT suggested that the Court also include Longevity Steps and make up the lost steps which current teachers have previously foregone. The estimated costs of these respective alternatives were presented in AFT Exhibit 32 and are set out below:

ESTIMATED COST PROJECTIONS AFT SALARY PACKAGE 1993–94 TO 1995–96

Current Amount Allocated

1993–94 Proposed

1994–95 Proposed

1995–96 Proposed

Maintain proposed teacher salary for teachers currently budgeted

35,016,077

Maintain proposed salaries and work year of other employees

8,055,509

Provide proposed salary increases for additional employees

564,715

Maintain inservice days for new teachers

261,746

Maintain substitute rate at $75 per day

621,130

Maintain extracurricular pay rates

568,911

Regular hourly rate for magnet

0

inservice

54,867,436 11,759,051 1,328,859
277,451 621,130 568,911 2,394,576

67,083,995 14,247,767 2,289,441
294,098 621,130 568,911 2,573,532

80,213,547 16,894,576 3,217,861
311,744 621,130 568,911 2,765,862

Maintain inservice days for new teachers
Maintain substitute rate at $75 per day
Maintain extracurricular pay rates
Regular hourly rate for magnet inservice
Reserve

261,746 621,130 568,911
0 500,000

277,451

294,098

311,744

621,130

621,130

621,130

568,911

568,911

568,911

2,394,576

2,573,532

2,765,862

500,000

500,000

500,000

TOTAL

45,588,168

72,317,414

88,178,874

105,093,431

ANALYSIS OF AFT SALARY PROPOSAL

Proposal

1993–94 Estimated

1994–95 Estimated

1995–96 Estimated

Cost

Cost

Cost

1992–93 DOD Implement in 1993–94 Includes all Lost Steps and Longevity

72,317,414

88,178,874

105,093,431

Cost

Cost

Cost

1992–93 DOD Implement in 1993–94 Includes all Lost Steps and Longevity
1992–93 DOD Implement in 1993–94 Includes all Lost Steps—No Longevity
1992–93 DOD Implement in 1993–94 No Lost Steps— No Longevity
Annual Incremental Costs:
Cost to Make Up Lost Steps and Grant Longevity (1992– 93 DOD in 1993–94)
Cost of Longevity Steps (1992–93 DOD in 1993–94)
Cost to Make Up Lost Steps (1992–93 DOD in 1993–94)

72,317,414 68,308,205 63,642,828
8,674,586 4,009,209 4,665,377

88,178,874

105,093,431

83,798,440

100,325,951

78,726,048

94,827,515

9,452,826

10,265,916

4,380,434

4,767,480

5,072,392

5,498,436

*4 The Court must consider the fiscal realities in which the District is forced to operate. Also, the Court must consider the need to have successful implementation of the desegregation program. It has repeatedly been decided by this Court that the salaries at issue herein are a proper expense under the desegregation program. Therefore, the question, as correctly stated by the District, the AFT and the plaintiffs at the beginning of the trial on this issue, is not whether to give a raise to those included in these programs, but rather how much of an increase is appropriate.
The Court views the fiscal horizon as changing for the district. The Legislature has adopted a new educational funding package which appears to result in a substantial gain for the KCMSD in terms of a net increase in state non-desegregation funding. The Court has further noted that there has been some activity in the Legislature towards allowing the KCMSD some

viable alternatives in financing its share of the desegregation expense. Moreover, the Legislature, anticipating the salary increase contemplated herein, included an increase in this year’s budget item for salaries over last year’s. Moreover, the Court in April of this year adopted a two-year extension of the LRMP with certain minor modifications. The Court adopted what was most certainly a less expensive plan than that offered by the KCMSD. It is expected that this cost savings would be used to the benefit of the desegregation program in general and specifically there should be some added ability of the District to fund its share of the salary increases. The Court finds that the fiscal climate in the District is changing for the better and that there is a substantial need to address the inequalities in teachers’ salaries created in the past.
The Court finds that the area of foremost importance is the return to the teachers of lost step increases. As noted above, the Court believes that the best approach in this instance is to return the lost steps in year one (FY93–94). This will result in an inordinate increase in year one but in the long-run will be the least-cost approach. Therefore, the Court will order that the missed salary steps for current KCMSD teachers be restored in FY93–94.
The Court further finds that the teachers in the KCMSD have gone without a salary increase for long enough. It is essential to the success of the desegregation program that those persons charged with implementing the plan be the most qualified persons reasonably attainable. The Court has found that the KCMSD most assuredly competes in the national urban market. Therefore, it is appropriate for the Court to look to this market for guidance as to what the relevant teachers’ salary should be. The DOD schedule provides an accurate representation of what the national urban market will bear in terms of teachers’ salaries. The Court finds that the DOD schedule is the appropriate benchmark for the KCMSD to use in determining teachers’ salaries. While the Court does find that the AFT’s package would be of the greatest advantage to those represented, it is still not viable for the Court to implement at this time. However, as repeatedly announced herein, the Court does find that some increase is appropriate.
KCMSD Plan
*5 The KCMSD has proposed for 1993–94 to set teachers salaries by reference to a teacher salary schedule prepared by the DOD for 1991–92. This would result in an approximately four percent increase in entry-level pay for KCMSD teachers with a bachelor’s or a master’s degree. All eligible teachers would again receive regular annual step increases. The KCMSD recognizes that its proposal is not designed to allow the KCMSD to immediately be competitive in the national urban market. Rather, the plan offered by the District calls for the District to be “roughly competitive”. The Court expects that the District will one day be more than “roughly competitive”, however, at this date the District has offered the most fiscally sound alternative. Therefore, the Court will adopt the District’s proposal with the addition of the step increases as discussed above. The package offered by the District and approved by the Court is as follows:
ESTIMATED COST PROJECTIONS *
KCMSD SALARY PACKAGE
1993–94 TO 1995–96
(without step increases restored)

Current Amount Allocated

1993–94 Proposed

1994–95 Proposed

1995–96 Proposed

Maintain proposed teacher salary for teachers currently budgeted
Maintain proposed salaries and work year of other employees
Provide proposed salary increases for additional employees
Maintain inservice days for new teachers
Maintain substitute rate at $75 per day
Maintain extracurricular pay rates
Reserve

35,016,077 12,209,812
564,715 261,746 621,130 568,911 500,000

41,621,333

48,218,767

55,108,579

15,743,754

19,154,177

22,782,827

1,027,317

1,671,709

2,260,665

269,598

277,686

286,017

621,130

621,130

621,130

568,911 500,000

568,911 500,000

568,911 500,000

TOTAL

49,742,391

60,352,043

71,012,380

82,128,129

The Court will further order that the District’s proposal for a 2% per year increase for administrators and non-represented employees, as well as for classified employees (other than those listed below) be adopted for FY93–94 through FY95–96. Next, the Court is asked to consider the “group exit” program. The program offered by the District is of the type which the Court would generally support. The Court will approve the KCMSD’s proposal to develop a “group exit” program but will reserve approval of any specific program until the District brings forth the completed version of any such program.

AFT Proposal for SEIU Local 12 Bargaining Unit
The Court will next address the AFT’s motion for desegregation funding for operating, warehouse, maintenance, mailroom, and food service employee wage increases in FY93–94 through FY95–96. The evidence presented at trial reaffirmed the position that the support personnel of the district are critical to the successful implementation of the desegregation program. The AFT has put forth a proposal as follows:

Operating Dept. Maintenance Dept. Warehouse Dept. Mailroom Dept.

1993–94

1994–95 and 1995–96

4% Wage Increase

4% Annual Increases

+ Step Increase

+ Step Increases

10% Wage Increase +

4% Annual Increases

Equity Adjustments for Truck

Driver and Warehouseperson

Wage Increases Based on

4% Annual Increases

Those Given Identical Job

Titles in Maint. Dept.

Wage Increases Based on

4% Annual Increases

Those Given Same/Similar Job

Mailroom Dept. Food Services

Those Given Identical Job

Titles in Maint. Dept.

Wage Increases Based on

4% Annual Increases

Those Given Same/Similar Job

Titles in Maint. Dept.

6% Wage Increase +

4% Annual Increases

Elementary School Manager + Step Increases

Equity Adjustment

+ Step Increases

*6 The Court has carefully considered the AFT’s proposal with respect to the employees listed above. The District has proposed a 4% annual salary increase for maintenance workers without annual step increases through FY95–96. While the Court has consistently found that the support personnel form an integral component of the desegregation program, the Court is not convinced that the increases sought by the AFT or the District are sufficiently well supported to allow for such a large increase at this time. The Court finds, however, that some increase is appropriate. The Court finds that the appropriate amount of increase in the wage rate for these departments is 2.5% for each of the periods listed above, for a total of 7.5%. The Court will not direct that the District implement the step increases as urged by the AFT. Rather, the Court finds that this matter is better left to the bargaining between the parties.
The Court finds that it is important for the KCMSD to be able to continue to contribute to the salary expense incurred due to the desegregation program. Therefore, the Court will order that the KCMSD is authorized to maintain its property tax levy at a rate of $4.96 per $100 assessed valuation for the 1993–94, 1994–95, and 1995–96 school years. The funding for the salary package announced herein will be 50%/50% with joint and several liability between the State and the KCMSD.
State’s Additional Motions
The State has filed a motion to strike the plaintiffs’ post-hearing brief or in the alternative has requested leave to file a reply to plaintiffs’ memorandum. The Court does not condone haphazard disregard for the time limits which are imposed by the Court, usually after protracted negotiation between the parties. Additionally, the Court notes to plaintiffs that a discussion with the judge’s law clerk is in no way seeking leave of the Court to file a pleading out of time. The Court agrees that in the further pursuit of an equitable resolution of the matters herein it is appropriate to have the position of the plaintiff schoolchildren before the Court. The position taken is of surprise to no one. The Court finds that no party is prejudiced by the filing out of time of plaintiffs’ memorandum. However, in the interest of fairness the Court will grant the State’s motion for leave to file a reply. The Court has considered each of the pleadings in making the decision announced herein.

Next, the State has moved the Court for an Order establishing an express right of contribution in the State. The Court has reviewed the briefs of the parties on this issue and finds them to be exemplary. It has come to the Court’s attention that there may be further evidence adduced at the forthcoming hearing on this issue. Thus, the Court finds that it is appropriate to defer ruling on the issue of the State’s right to contribution. The Court specifically finds that the issue for contribution with respect to the matters decided herein will be deferred pending the trial on the Milliken II issues on July 7, 1993.
*7 In summary, the Court has found that the salary package presented by the District is the most economically feasible at this time. There, is no basis for the Court to change its previous rulings on the issues presented herein. It is the Court’s intention that the lost-steps be recompensed in FY93–94. The Court will defer ruling on the State’s motion for contribution but expressly reserves any ruling on the issue of contribution for the salary package adopted herein.
Accordingly, it is hereby ORDERED that the KCMSD’s salary proposal for 1993–94, 1994–95, and 1995–96 is approved as follows:

Current Amount Allocated

1993–94 Proposed

1994–95 Proposed

1995–96 Proposed

Maintain proposed teacher salary for teachers currently budgeted
Maintain proposed salaries and work year of other employees
Provide proposed salary increases for additional employees
Maintain inservice days for new teachers
Maintain substitute rate at $75 per day
Maintain extracurricular pay rates

35,016,077 12,209,812
564,715 261,746 621,130 568,911

41,621,333

48,218,767

55,108,579

15,743,754

19,154,177

22,782,827

1,027,317

1,671,709

2,260,665

269,598 621,130 568,911

277,686 621,130 568,911

286,017 621,130 568,911

increases for additional employees
Maintain inservice days for new teachers
Maintain substitute rate at $75 per day
Maintain extracurricular pay rates
Reserve

261,746 621,130 568,911 500,000

269,598 621,130 568,911 500,000

277,686 621,130 568,911 500,000

286,017 621,130 568,911 500,000

TOTAL

49,742,391

60,352,043

71,012,380

82,128,129

and it is further ORDERED that the foregone salary step increases are ordered restored for FY93–94; and it is further
ORDERED that the Court approves funding for 2% annual wage increases in FY93–94 through FY95–96 for administrators and other non-represented employees as well as for classified personnel (other than those discussed herein); and it is further
ORDERED that the Court approves a 2.5% annual wage increase for each of those persons represented by the AFT’s motion for operating, warehouse, maintenance, mailroom, and food service departments for FY93–94, FY94–95, and FY95–96 for a total of 7.5%; and it is further
ORDERED that the District’s request to develop a “group exit” program is granted; and it is further
ORDERED that the State’s motion to strike plaintiffs’ post-trial memorandum is denied; and it is further
ORDERED that the State’s motion for leave to file a reply to plaintiffs’ memorandum is granted; and it is further
ORDERED that the Court will defer ruling the State’s motion for an order establishing an express right of contribution until after the July 7, 1993 hearing on Milliken II issues.

All Citations Not Reported in F.Supp., 1993 WL 546576

Footnotes

*

This cost projection includes restoration of step increases but does not compensate for missed step increases

and does not include certain longevity steps in the DOD teacher Salary schedule.

 
 1993 WL 566488 Only the Westlaw citation is currently available. United States District Court, W.D. Missouri, Western Division.
Kalima JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–4. |
July 30, 1993.
ORDER
RUSSELL G. CLARK, Senior District Judge.
*1 The Court has pending before it several motions regarding the desegregation programs in the KCMSD. The first matter is the joint motion of the KCMSD and plaintiffs for approval of next two years of Milliken II desegregation plan. Also before the Court is the motion of the KCMSD for approval of final FY92 costs for temporary relocation of students and programs (“Staging”). Lastly, the KCMSD has filed a motion to alter or amend the Court’s Order of June 30, 1993 (“Salary Order”).
The AFT has responded to the KCMSD’s motion to alter or amend the Salary Order. Additionally, the State has responded to the motion as well. The Court has previously indicated to the parties through informal communications that it intended to issue an order clarifying the Salary Order and will do so in response to the KCMSD’s motion to alter or amend. The Court will grant the KCMSD’s motion in part and deny it in part.
With respect to the motion for approval of final FY92 staging costs, the parties have informally made known to the Court that there was no opposition to the District’s motion. A response has not been filed by any party. The Court having duly considered the merits of the KCMSD’s motion for final FY92 staging costs will grant the KCMSD’s motion as proposed.
The State has responded to the joint motion with respect to the Milliken II component of the desegregation program. A joint stipulation was filed in this matter resolving many of the components of the Milliken II program. On July 7, 1993, the Court held a hearing on the remaining disputed items in the joint proposal. Upon consideration of the evidence presented at the hearing and the arguments made by the parties in pleadings previously submitted, the Court will grant the joint motion in part and deny it in part in accordance with the following discussion.
MILLIKEN II
The remaining Milliken II components for which the State has alleged factual disputes are (1) inclusion of additional special education teachers in the Base Budgets; (2) use of the 1986–87 level for determination of the appropriate level of maintenance spending; (3) enhancements to the security program currently in effect; (4) extension of the Effective Schools program; (5) inclusion of the Full–Day Kindergarten program without offset for monies received as a result of S.B. 380. The State further argues that the Court should reject the joint motion in toto because the KCMSD has attained the sufficient levels of desegregation called for under Freeman v. Pitts, 112 S.Ct. 1430 (1992). Based on this argument the State urges the Court to deny any additional funding of any of the Milliken II components requested in the joint motion. Lastly, the State again calls for an order of the Court expressly establishing a right of contribution in the State for monies expended under the previous orders of the Court allowing for joint and several liability for desegregation expenses in the KCMSD.

*2 The Court will first address the State’s argument that the desegregation programs called for under the Milliken II component have reached the necessary level of compliance with the desegregation decree in this case. The State offers the findings of the United States Supreme Court in Freeman v. Pitts, 112 S.Ct. 1430 (1992) in support of its arguments. In Pitts the Court held that where a district court’s desegregation order has been substantively complied with in certain areas the court may withdraw desegregation supervision of those areas even though the program has not been fulfilled in its entirety. The Court has heard evidence presented by the State in several recent hearings offered to show that the desegregation program in the KCMSD has been a complete failure. In the LRMP renewal hearing held early in this year the State repeatedly argued that the District has failed to show sufficient signs of improvement as a result of the magnet program to justify continuation of that program. The State has repeatedly taken the position that the desegregation programs ordered by the Court have been of absolutely no benefit to the school children of the KCMSD.
It appears now that the State is arguing that all is cured. The State, as it has in the previous Milliken II hearings, has argued that the programs covered under this component have attained the necessary levels of desegregative effect and should therefore be turned over to the KCMSD for continued implementation. The Court has previously ruled as a result of the LRMP renewal process that the KCMSD has not met the goals and standards set by the Court in establishing the desegregation remedy. The Milliken II component is an integral part of the overall desegregation remedy and the Court finds that the State’s arguments that these components have attained unitary status are unpersuasive. The State should not be heard to complain that the desegregation plan is a complete failure on the one hand and that the Milliken II components are completely successful on the other. The Court finds that the State has made fundamentally flawed arguments in pursuit of an order determining unitary status in the KCMSD. The Court does find that the Milliken II components have been partially successful in implementing the goals and standards of the desegregation remedy. However, these components have not yet met these goals in their entirety. The Court finds that it would be wholly inappropriate to deem the KCMSD unitary or partially unitary at this time. Therefore, the Court will order the continued implementation and funding of the Milliken II components for which the joint stipulation was entered for two years.
The Court will next consider the individual programs with which factual issues have been raised regarding their further implementation as part of the Milliken II component of the desegregation remedy. The first issue is inclusion of additional special education teachers in the Base Budgets. The State opposes the additional special education teachers on the basis that this expense is incurred as a result of an accounting mistake on the part of the District and the State argues that it should not be made to bear this burden. The Court finds that the teachers at issue herein are necessary to meet the special needs of some students who choose to attend magnet programs. The fact that these positions have been the subject of a previous accounting error is irrelevant to the future consideration of desegregation expenses as a result of the need to provide these services. The Court finds that these positions are legitimate desegregation expenses and their inclusion in the Base Budgets is appropriate. Therefore, the Court will approve the requested addition to the Base Budget component.
*3 Next, the Court will consider the use of the 1986–87 square footage level for determination of the appropriate level of maintenance spending. Mr. Robert Brogi, Deputy Superintendent, testified to the appropriate measurement of maintenance attributable to the desegregation program. In order to calculate this amount, Mr. Brogi compared the pre-remedy square footage to the post-remedy square footage and determined that the difference was the amount attributable to desegregation. He further testified that he believed that the maintenance in the KCMSD was getting better but there were some areas which could use improvement. The Court has reviewed the maintenance component submitted as a part of the Milliken II program and finds that the Maintenance plan is an appropriate component to the overall desegregation remedy. It is imperative that the District be able to maintain the programs made available as a result of the desegregation remedy and the Court will do everything in its power to see that this goal is met. However, the concept of using the 1985–86 as the base year for attributing desegregation expenses presupposes that the KCMSD would never have incurred any growth in its physical plant over the time period contemplated. The Court does not have an exact method of determining the precise amount of square footage attributable to desegregation. However, it is the belief of the Court that the District should be responsible for some of the growth in the district and finds that the recommendation of the DMC to use August 1991 as the base year is the appropriate method for calculation. The Court will therefore order the extension of the maintenance component of the Milliken II component as proposed by the District with the modification that the base year for comparison be August 1991.
The Court will next consider the proposed enhancements to the security program offered by the District in the Milliken II proposal. Captain Livingston testified that the security of the KCMSD was a legitimate expense to be incurred by the desegregation program and that to fully implement the security plan it would need to be expanded as proposed. The Court concurs with Captain Livingston’s assertion that the Security Component is a primary consideration in the implementation of the desegregation remedy. Moreover, the Court finds that the security of the school children and the staff of the schools is of utmost importance to the Court in fashioning the remedy in this case.

The Court does not wish to express its concern over the submission of expenses for security as desegregation related expenses when there is no such relationship. These allegations were made during the hearing, but not fully substantiated. The Court would suggest to the district that it use all due diligence in tracking such expenses and ensuring that there is no opportunity for misapplying already scarce resources. The Court will not look favorably on a return of such claims. The Court does not believe that it is imperative to have the additional officers as requested by the reorganization of the security department. While it is the Court’s opinion that there is no question that the additional personnel would heighten security the Court does not believe that the changes, as proposed, are fiscally sound. Therefore, the Court will deny the request for additional staffing.
*4 It is appropriate at this point for the Court to note that the City has a vested interest in the school system being rebuilt. The Court has gone to great lengths to provide the KCMSD with facilities and opportunities not available anywhere else in the country. The City must take some responsibility in maintaining these schools. The City receives the benefit of the attractiveness and acclaim of these schools. However, it appears to the Court that the City has shirked its responsibility in maintaining the school system being provided to it. It is entirely appropriate for the Police Department of Kansas City, Missouri to supply security to schools that are in need. The police in Kansas City have the responsibility of protecting its citizens and the many thousands of school children are just as deserving as any other citizen. The Court urges the District to approach the City and attempt to coordinate some provision of security by the police department whether it be in the form of sub-stations or some other alternative. It is incumbent on the City to be responsible for all of its citizens.
The Security proposal included the request for additional vehicles. Captain Livingston testified that should the request for additional personnel be denied that there would be no need for additional vehicles. The Court, having found that the additional personnel will not be provided, further finds that the request for additional vehicles will also be denied. The KCMSD has proposed the addition of walk-thru metal detectors for purposes of security. The Court finds that the climate of activity in the KCMSD is such that this is a reasonable expense. The Court will therefore grant the request for walk-thru metal detectors. The Court will extend the Security component of the Milliken II program for a concurrent two-year time period with the other components but the Court will deny the requested additions to the Security component with the exception of the walk-thru metal detectors.
The Court will next consider the proposed extension of the Effective Schools program. The State has taken the position that the District failed to present any evidence for evaluation of the Effective Schools program and that the motion for extension of that component should therefore be denied. The District and plaintiffs argue that there exists no evidence of success or failure as the data has not been available for evaluation. The data will be available at the end of the 1993–94 school year to measure the impact of the Effective Schools program. The plaintiffs further argue that the Court, in its previous order, adopted the Effective Schools program for two years but funded it for only one. The plaintiffs argue that it was implicit in the Court’s previous order that it would extend funding for the second year even though it would be impossible to evaluate the program as the data would not yet be available. The Court finds that the Effective Schools program should be extended for one additional year per its previous order. The District is directed to continue to collect data to evaluate the impact of the Effective Schools program. The Court, in considering the appropriateness of a further extension of the Effective Schools program at the end of FY93–94, will expect that the District be able to submit a detailed analysis of the impact of this program for the Court’s review at that time. The Court will therefore grant the District’s motion for extension of the Effective Schools component and appropriate funding for FY93–94.
*5 The Court will next consider whether the inclusion of the Full–Day Kindergarten program without offset for monies received as a result of S.B. 380 is an appropriate component of the Milliken II program. The Court has previously found that the Full–Day Kindergarten was a benefit to the desegregation effort in the KCMSD and an essential part of the remedy. The Court finds that the evidence presented at the hearing on this issue did nothing to change the Court’s perception of this program. It is fundamental that the school children of the KCMSD be given every advantage at the earliest possible age and this program addresses that need. The State argues that the District is receiving a windfall because Full–Day Kindergarten is a qualifying requirement for certain monies under the new school foundation formula known as S.B. 380. The Court finds that the fact that the district receives additional resources from the State’s formula because a portion of the formula recognizes the benefits of the Full–Day Kindergarten program is of no consequence when determining whether to include that program as part of the remedy. The Court has found that the State is a constitutional violator and is required to fund the remedy as ordered by the Court. The fact that the District is going to receive additional revenues under the new foundational formula is irrelevant to the consideration of obligations due the plaintiff school children as a result of the constitutional violations of the State. The Court will not allow the offset of Full–Day Kindergarten monies by any additional amount received under S.B. 380. The Court will grant the joint motion with respect to the Full–Day Kindergarten component as proposed.

SALARY ORDER
With respect to the KCMSD’s motion to alter or amend the Salary Order the Court has previously indicated its inclination to issue an order clarifying its original opinion. The Court has fully considered the arguments presented by the parties and finds that there exist two major issues to be addressed. First, is the issue of whether there is to be an actual cash outlay to current teachers in compensation for lost steps. It was the original intention of the Court to put the teachers in FY93–94 on the step where they would have been had there been consistent step increases in the past. The Court by its June 30, 1993 Order did not intend to have the District make a cash outlay to the teachers for foregone step increases. However, the teachers currently in the district will receive the prospective benefit of lost step increases by being placed on the higher steps for which they are eligible.
The next issue addressed by the KCMSD’s motion to alter or amend the Salary Order is in the area of step increases for administrators. In its Order of June 30, 1993 the Court intended to restore lost step increases only to teachers. The Court granted a two percent pay increase to the administrators and it was the intention of the Court that such pay increase be a flat rate increase. As a matter of illustration, an administrator who made $100 in FY92–93 would receive $102 in FY93–94 and a similar two percent increase in each of the other years covered by the Salary Order. The Court did not intend to adopt the salary proposal of the District which allowed for step increases for administrators. It was the sole intention of the Court that the administrators receive a two percent flat rate increase.
*6 The Court, by this Order, does not intend to disparage the administrators and other non-represented personnel of the KCMSD and finds specifically that the proper administration of the district is imperative to the continued success of the desegregation program. However, as a matter of fiscal conservatism in the face of the budget constraints faced by the District the Court finds that it is appropriate only to allow for a small increase in compensation at this time. The Court believes that the District may have opportunity to provide further increases through the operating budget for administration but further finds that a sufficient level of support is currently provided through desegregation funding.
The KCMSD next queries whether it was the Court’s intent to disallow the equity adjustments previously provided by the Court in its Order of June 25, 1992. The Court finds that this equity adjustment for administrative and non-represented personnel was previously approved by the Court but not fully implemented by the District. While this adjustment would result in an initial increase of over two percent in FY93–94 it is the intention of the Court that this equity adjustment be allowed. The Court having previously allowed such an adjustment is not inclined to subsequently disallow it. The Court considered the flat rate two percent per year incremental adjustment ordered on June 30, 1993 to be made in addition to the equity adjustments approved in the June 25, 1992 Salary Order. Therefore, the Court will disallow the step increases for those persons contemplated by the District’s motion but the Court will again approve the equity adjustments allowed in the June 25, 1992 Salary Order.
The last issue for consideration by the Court is the State’s motion for an order expressly establishing a right of contribution both retroactively and prospectively. The matter was originally brought before the Court as a part of the Salary dispute previously resolved by the Court’s Order of June 30, 1993. The Court is currently in the process of evaluating the submissions of the parties on this issue and expects that a ruling will issue in the near future. However, as of this date, the Court will not announce its findings as to the contribution issue. The Court will defer ruling on this issue at this time.
Accordingly, it is hereby
ORDERED that the KCMSD’s motion for approval of final FY92 staging costs is approved; and it is further
ORDERED that the KCMSD’s motion to alter or amend the Court’s June 30, 1993 Salary Order is granted in part and denied in part; and it is further
ORDERED that the step increases for administrators and other non-represented personnel contemplated by the KCMSD’s motion to alter or amend the Salary Order of June 30, 1993 are not allowed by the Court; and it is further
ORDERED that the equity adjustments previously ordered by the Court in its June 25, 1992 Salary Order are again approved for inclusion in the Salary Order of June 30, 1993 as amended herein and that the administrators and other non-represented

personnel are to receive a flat two percent per year increase in compensation; and it is further
*7 ORDERED that the joint motion for approval of Milliken II funding is granted in part and denied in part; and it is further
ORDERED that the joint motion with respect to those items subject to the joint stipulation is granted; and it is further
ORDERED that the joint motion with respect to the adjustment for special education teachers in the Base Budget component is granted; and it is further
ORDERED that the joint motion with respect to the maintenance component is granted except that the District is directed to use August 1991 as the baseline for calculation of desegregation related maintenance expenses; and it is further
ORDERED that the joint motion with respect to the security component is granted in that the current budget is ordered extended but the Court denies the motion for additional personnel or equipment except the Court will allow the expenditure of desegregation funds for walk-thru metal detectors as proposed; and it is further
ORDERED that the joint motion with respect to the Effective Schools is granted and funding is approved for FY93–94 and the District is directed to submit to the Court a complete evaluation of the program in the event the District returns to the Court for renewal of funding; and it is further
ORDERED that the joint motion with respect to Full–Day Kindergarten is granted and the State’s request for offset of S.B. 380 monies is denied; and it is further
ORDERED that the Court approves the budgets as submitted except as modified herein with joint and several liability; and it is further
ORDERED that the District shall use the AAA minimum standard; and it is further
ORDERED that the motion of the State for an order expressly establishing a right of contribution is deferred pending further analysis by the Court.
All Citations
Not Reported in F.Supp., 1993 WL 566488

 
 11 F.3d 755 United States Court of Appeals,
Eighth Circuit.
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,
Plaintiffs–Appellees, American Federation of Teachers, Local 691, Plaintiffs,
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; Dan L. Blackwell; Gary M. Cunningham; Raymond McCallister, Jr.; Susan D. Finke; Thomas R. Davis; Cynthia B. Thompson, Members of the Missouri
State Board of Education; Robert E. Bartman, Commissioner of Education of the State of Missouri, Defendants–Appellants,*
School District of Kansas City, Missouri; Claude C. Perkins, Superintendent thereof, Defendants–Appellees.* 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
Allen 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, Plaintiffs–Appellees, 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; 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, Vice–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, President, 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–Appellants,*
School District of Kansas City; Walter L. Marks, Superintendent thereof, Defendants–Appellees.*
Nos. 90–2238, 91–3636, 92–3194 and 92–3200. |
Submitted Sept. 15, 1993. |
Decided Nov. 29, 1993. |
As Amended on Denial of Rehearing Feb. 24, 1994. |
Rehearing En Banc Denied March 15, 1994.**
Synopsis In school desegregation action, the United States District Court for the Western District of Missouri, Russell G. Clark, J., entered various funding orders, from which state of Missouri appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) base costs of magnet schools were properly included as desegregation costs that state could be required to pay as result of its joint and several liability for desegregation expenses; (2) school district’s quality education programs were not unitary; and (3) ordering salary increase for school district teachers and other employees was not outside District Court’s authority.
Affirmed.

Attorneys and Law Firms
*757 Bart A. Matanic, Asst. Atty. Gen., Jefferson City, MO, argued for appellant.
Daniel B. Kohrman and Kevin J. Lanigan, Washington, D.C., argued, for Kelima Jenkins, et al.
Shirley Ward Keeler and Arthur A. Benson, II, Kansas City, MO, argued, for Kansas City School Dist.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion
JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from four orders of the district court1 entered in the ongoing Kansas City school desegregation case. The district court ruled in two orders that base costs of the original group of magnet schools were properly included as desegregation costs, which the State could be required to pay as a result of its joint and several liability for desegregation expenses. The State argues that the district court erred in placing this expense on the State, because in earlier orders the district court had required that these orders be paid by the Kansas City, Missouri School District. The State appeals the district court order approving certain quality education programs known as Milliken II programs after Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ), for the *758 1992–93 school year.2 The State contends that the Milliken II programs already in place had achieved the goals set for them, and had attained unitary status under Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), and the district court erred in not recognizing this and in ordering further programs. Finally, the State appeals from orders requiring the State to pay for a salary increase for KCMSD teachers and other employees. We affirm the orders of the district court.
I.
The first two appeals involve orders allowing the base costs of the “flagship magnets” as desegregation expenses for which the State and KCMSD are jointly and severally liable. The flagship magnets (also referred to as the “1986–87” magnets in reference to their inception date) are schools that existed before the desegregation remedy and were converted into magnet schools as part of the desegregation remedy.3 The costs that KCMSD would have incurred in running these schools, regardless of the desegregation remedy, are referred to as “base costs.” Costs associated with the magnet themes are called “incremental magnet costs.”
In the original magnet school order, June 16, 1986, the court made no distinction between base costs and incremental costs for the flagship schools, but classified the total amount as a desegregation expense, allocating half to the State and half to the KCMSD. Jenkins v. Missouri, 639 F.Supp. 19, 53–55 (order on pending motions) (W.D.Mo.1985), aff’d, 855 F.2d 1295 (8th Cir.1988), cert. denied as to this order, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). The State alluded to this very briefly in an appeal of that funding order, complaining that the district court “held all of the operating costs of the schools, whether part of the original budgets or newly ordered by the court, were to be counted as necessary desegregation expenses,” and that the court had “effectively transfer[red] to the desegregation plan all of the operating expenses of the schools.” We affirmed the June 16, 1986 order, though without discussion of this point. Jenkins v. Missouri, 855 F.2d 1295, 1319 (8th Cir. 1988) (Jenkins II ), cert. denied in relevant part, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989).
The district court in November 1986 ordered a more extensive “Long Range Magnet Plan” which created new magnets in addition to the flagship magnet schools. The Long Range Magnet Plan budget distinguished between base and incremental costs for the new magnets, and required the KCMSD to pay base costs from its operating budget. On July 25, 1988, the district court decided that the flagship magnets and the new magnets should be funded according to the same principles, and that it would therefore not require the State to pay the base costs for the flagship magnets for 1988–89. Because the KCMSD could not show which costs were base and which incremental, the court simply included the whole cost in the desegregation

budget, but allowed the State a credit for the base amount, which was to be determined later. The court issued a similar ruling for 1989–90.
Before the State obtained the benefit of these credits, however, money problems intervened. The court stayed the orders requiring the KCMSD to pay the 1988–89 and 1989–90 base costs, pending a review of KCMSD’s finances by an independent consulting firm to determine what KCMSD could pay for out of its operating budget.4
Two orders are on appeal, dated June 26, 1990 and July 5, 1991, in which the district court approved the total expenses for the *759 flagship magnets as desegregation expenses for the years 1990–91 and 1991–92, respectively. In those orders, the court allocated the flagship base costs entirely to the KCMSD, but the effect of joint and several liability is that the State could be called on to pay these costs. In the 1990–91 order the court stated that the consultant’s study was still pending, and that if the report should result in the February 1, 1990 stay order being lifted, the State could receive a credit for the base costs. In the 1991–92 order the court stated the budget study did not indicate that the KCMSD had the money to pay the base costs from its operating budget, and therefore, the costs would have to be shifted to the desegregation budget.
The State’s objection is that by designating the 1990–91 and 1991–92 base costs as desegregation expenses, payable by the KCMSD, the court is indirectly requiring the State to pay the costs, through the operation of joint and several liability. The State raises four arguments against such a result.
[1] First, the State argues that requiring it to pay for the ordinary costs of operating KCMSD’s schools is impermissibly granting relief not related to the State’s constitutional violation, since KCMSD would have had to pay the operating costs of its schools, whether or not the State ever committed a constitutional violation.
The cases the State cites are not directly applicable, since they either address situations in which there was no relation between the remedy ordered and the constitutional violation,5 or simply refer generally to the requirement that the remedy be limited to rectifying conditions that offend the Constitution.6 As we discuss at length in Part II, the effect of the constitutional violations in this case was to lessen student achievement in the KCMSD and to cause white flight. Jenkins II, 855 F.2d at 1300. It has already been determined that the proper remedy for these injuries is to improve the quality of education given to minority students and to implement superior educational programs that will attract white students back to the District and redistribute the whites concentrated in certain parts of the District. Id. The flagship magnet schools are a cornerstone of the remedial plan. The relation between payment of the magnets’ base costs and the success of the constitutional remedy is evident. If KCMSD cannot pay the basic costs of keeping the schools open, the magnet programs at those schools cannot go forward and the remedial plan will be stillborn. It is therefore consistent with Milliken II to require the State to pay costs the KCMSD would have been otherwise responsible for when KCMSD cannot pay, and when failure to pay would fatally undermine the constitutionally-mandated remedy. In fact, it is settled law in this circuit that a desegregation remedy can require the State to pay the entire costs of educating at least some of a district’s students, since we affirmed such an order in St. Louis over the same sort of objection the State makes here. See Liddell v. Missouri, 801 F.2d 278, 282–83 (8th Cir.1986) (Liddell IX ).
[2] Next, the State argues that the district court’s decision to place the base costs in the desegregation budget is inconsistent with other decisions that the district court has made in this case. The State argues that the authority of the court’s orders separating base and incremental costs for the flagship magnets’ 1988–89 and 1989–90 funding is not affected by the February 1, 1990 stay of those orders and the rationale of those orders should govern later years. We have recognized the practical flexibility of the court in shaping remedies and adjusting and modifying injunctions in Jenkins v. Missouri, 931 F.2d 470, 482 (8th Cir.) (Jenkins III ), cert. denied, 502 U.S. 967, 112 S.Ct. 437, 116 L.Ed.2d 456 (1991), particularly where there *760 are changed circumstances. The district court exercised this flexibility when it changed from full desegregation funding for the flagship magnets (as it had ordered before 1988–89) to separating base from incremental costs. In response to a budget study which “did not indicate that the KCMSD has resources available from its operating budget to support the base budgets,” the court once again consolidated the base costs with incremental costs. There was adequate rationale for the change and the 1990–91 and 1991–92 orders do not conflict with the court’s earlier treatment of the base costs.
The State quotes language from the district court opinion of July 5, 1991, in which the court rejected the KCMSD’s “no money” argument in another context. The KCMSD had argued that because it was always out of money and could not pay for its operating costs, its operating and desegregation budgets should be merged, with the State required to pay any expenses the KCMSD could not afford. The district court rejected this argument, stating, “There is no legal authority for essentially transforming the State into a guarantor of KCMSD operating budget shortfalls.” Order of July 5, 1991 at 9. The court then

advised KCMSD either to pursue additional funding or to institute cuts to balance its operating budget. Even granting that there may be tension between the July 5, 1991 decision and the orders before us, the district court did not err or abuse its discretion in making an adjustment or modification of its earlier equitable orders dealing with the flagship magnets’ funding, so vitally important to the remedy of the constitutional violations.
[3] Finally, the State suggests that the entire issue should be remanded to the district court for reconsideration in light of the State’s enactment of a new school finance formula, which the State argues will provide significantly greater state funding to KCMSD. This new development may well affect funding in future years, but at this point we simply do not know how. Any effect it may have will be determined by the district court as it considers future funding orders. It is not appropriate that we consider it in the first instance.
The parties evidently delayed the presentation of this appeal for some time in the hopes that the issue would be settled by the report of the independent consultant. It was only when the report’s result did not reveal sufficient money available to KCMSD to solve the problem that the State prosecuted its appeal. We view this as a recognition of the need to balance the many conflicting issues in crafting an appropriate remedy, and this further supports our conclusion that we should affirm the district court’s orders with respect to the base costs of the flagship magnets.
II.
[4] The State argues that the district court erred as a matter of law or, in the alternative, abused its discretion by failing to address in its June 17, 1992 order the State’s argument that the Milliken II quality education programs were unitary. Even if the district court was not obliged to make findings on this issue, the State argues that it abused its discretion in failing to hold the district unitary in the quality education area. We affirm the district court’s judgment.
KCMSD submitted its motion for approval of the desegregation plan for 1992–93, including continuation of the Milliken II programs, which the court had originally approved in order to improve student achievement in the KCMSD. While the KCMSD’s motion was pending, the United States Supreme Court decided Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). The State then relied on Pitts to argue that the Milliken II programs had been implemented fully and that the court should declare these programs unitary and return responsibility for them to the school district. The court held a hearing on the 1992–93 budget issues on May 27 to 29, 1992, and while rejecting some requests, ordered most of the Milliken II programs fully funded.
[5] The June 17, 1992 order approved the KCMSD’s 1991–92 budgets without comment. Order of June 17, 1992 at 7. In granting the funding, it is evident that the district court rejected the State’s arguments. The district court did not err in so ruling, *761 even though it did not articulate its reasoning in approving the funds. Rejection of the State’s argument is demonstrated by the district court’s failure to make findings based on these arguments. See Switzer Brothers, Inc. v. Locklin, 297 F.2d 39, 45 (7th Cir.1961) ( “[F]ailure to enter findings with respect [to certain evidence] is tantamount to findings adverse to appellants upon the evidence.”), cert. denied, 369 U.S. 851, 82 S.Ct. 934, 935, 8 L.Ed.2d 9 (1962). The district court need not make specific findings on all facts, but must only rule on the ultimate facts necessary to reach a decision in the case. United States v. F.D. Rich Co., Inc., 439 F.2d 895, 899 (8th Cir.1971); Falcon Equip. Corp. v. Courtesy Lincoln Mercury, Inc., 536 F.2d 806, 808 (8th Cir.1976) (“It is well established that the trial court does not need to make specific findings on all facts but only must formulate findings on the ultimate facts necessary to reach a decision.”). The district court’s order some nine months later in which it anticipated an orderly and gradual withdrawal of court control demonstrates the court’s grasp of the Freeman v. Pitts argument asserted by the State, and of the issues there raised.
Were we to entertain any question about the import of the district court’s June 17, 1992 order, the district judge’s comments from the bench during the hearing and later orders raising the same or similar issues answer our concerns. The State argues that the court should have declared the KCMSD unitary in regard to the quality education programs because the only goal of the desegregation remedy is the “full implementation” of the remedial programs, which the State asserts it has accomplished. However, during the hearing the court pointed out that the goal was not to implement certain programs, but rather to integrate the school district. Judge Clark stated:
The [c]ourt’s goal was to integrate the Kansas City, Missouri, School District ... and all these other

matters were elements to be used to try to integrate the [KCMSD].... That’s the goal. And a high standard of quality education. The magnet schools, the summer school program and all these programs are tied to that goal.... But when [the State] says no particular goal has been set, I think [it is] in error.
Judge Clark’s order rejecting funding for some of the programs and granting funding for continuation of other programs could only have done so on the basis that the goals of the desegregation programs, the elimination of the vestiges of past discrimination to the extent practicable, had not yet been achieved.
Because this desegregation litigation is ongoing, we also find it appropriate to refer to later orders which show that the district court considered and rejected the State’s arguments. Nine months after the order giving rise to this appeal, the court considered a motion for approval of the Long Range Magnet Renewal Plan. On April 16, 1993, the district court entered an order which dealt more explicitly with many of the arguments now urged by the State. Order of April 16, 1993. None of the parties has appealed this April 1993 order. Yet, this order helps illuminate the June 1992 order now before us. In the April order, the district court made the sort of findings contemplated by Freeman, anticipating an orderly and gradual withdrawal of court control. See 503 U.S. at ––––, 112 S.Ct. at 1445.
In the April 1993 order, the district court defined the first issue as whether the magnet programs have improved the educational lot of the victims of unconstitutional segregation and whether approval of the Long Range Magnet Renewal Plan would likely result in additional educational progress. The second issue was whether the original Long Range Magnet Plan had helped the KCMSD reverse white flight, and whether the Long Range Magnet Renewal Plan would bring more white students into the District. The third issue the court considered was whether the magnet programs have redistributed the students within KCMSD for maximum desegregation and whether the Renewal Plan would result in stabilization and further enhancement of desegregative gains.
The district court commented on the substantial progress made in desegregating KCMSD schools. The court found that there had been a trend of improvement in academic *762 achievement, but that the school district was far from reaching its maximum potential because KCMSD is still at or below national norms at many grade levels. Order of April 16, 1993 at 11. The court observed that the magnet school plan has been successful overall, with a substantial pool of suburban whites expressing an interest in attending KCMSD magnet schools. Id. at 9. The educational opportunities afforded in the magnet schools are better than previously available. Id. at 13. The court then extended the duration of the magnet plan. Id. at 14. The court stated that it was important to maintain the magnet plan as it is because of the positive impact on both the desegregation effort and on achievement. Id. at 20. The court ordered a two-year extension of the current plan (with certain modifications) in order to maintain the integrity of the programs currently offered, and to allow the KCMSD to better measure the effectiveness of the programs. Id. The court expressed a need for the parties’ views of an effective method by which the district may fund its share of the programs. It directed the KCMSD to submit a plan commensurate with current funding or at a level permitting maintenance of the same quality of both facilities and instruction, assuming withdrawal of court ordered funding at alternative intervals of three, five, seven or ten years. Id. at 21.
In essence, the court’s order indicated that the magnet school plan had been substantially successful, that further areas for improvement still existed, and that the court was looking forward to the day when a gradual phase-out would be considered. This order specifically addresses the issues raised by Freeman v. Pitts. See 503 U.S. at ––––, 112 S.Ct. at 1446 (listing factors a district court must consider to order a partial withdrawal of its supervision).
Further, the district court’s July 30, 19937 order regarding Milliken II programs expressly decides these issues. The State appealed this order but raised no Freeman v. Pitts arguments; the State only attacks the salary issue. We refer to the July 1993 order only as it fleshes out the meaning of the earlier district court orders dealing with the Freeman issues. In the July order the district court stated that it had previously ruled in the April 16, 1993 order as a result of the Long Range Magnet Renewal Plan that “KCMSD has not met the goals and standards set by the [c]ourt in establishing the desegregation remedy.” Order of July 30, 1993 at 3. The court unambiguously stated: “The court finds that the State’s arguments that these components have attained unitary status are unpersuasive.” Id. These statements leave no doubt that the court rejected the State’s Freeman arguments in July 1993, and it follows that in this ongoing litigation, it did so in the earlier orders dealing with the issue.
The court said next that the State argues inconsistently that the desegregation plan is a complete failure, but on the other hand, that the Milliken II components are completely successful. The court also concluded that the State has continued to make fundamentally flawed arguments in pursuit of an order determining unitary status in the KCMSD. The court found that the Milliken II components have been partially successful in implementing the goals and standards of the desegregation remedy, but the components have not yet met these goals in their entirety. The court’s statements in its July 30, 1993 order,

which the State referred to only most obliquely in the argument of the issues before us, substantiates our reading and interpretation of the orders heretofore entered by the district court.
[6] The State next argues that even if we conclude (as we have) that the district court was not obligated to issue findings of fact regarding the success of the Milliken II programs, the district court abused its discretion when it held that the Milliken II programs were not unitary. The essence of the State’s argument is that it complied fully and satisfactorily with all court orders, insofar as the remedial programs have been fully implemented and funded for a seven-year period. This, it argues, is the extent of its liability. We reject the State’s argument that the District has achieved unitary status *763 regarding the quality education offered its students.
The Supreme Court has twice in recent years considered the standards to be employed in determining whether a school system has become unitary.
First, in Board of Education of Oklahoma City v. Dowell, 498 U.S. 237, 245, 111 S.Ct. 630, 636, 112 L.Ed.2d 715 (1991), the Supreme Court stated that in determining whether there was constitutional compliance in a school desegregation case, the district court “should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable.” Id. at 249–50, 111 S.Ct. at 638. The Court itemized a number of facets of school operation that a court should consider in determining whether the vestiges of de jure segregation had been “eliminated as far as practicable,” including “student assignments, ... ‘faculty, staff, transportation, extra-curricular activities and facilities.’ ” Id. (quoting Green v. New Kent County School Bd., 391 U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968)).8
Second, in Freeman v. Pitts, the Court dealt specifically with whether a district court could withdraw incrementally from supervising a school desegregation case. The Court held that the Court of Appeals for the Eleventh Circuit erred in requiring retention of full remedial authority until a school district had achieved unitary status in all categories. 503 U.S. at ––––, 112 S.Ct. at 1446.
In discussing the meaning of “unitary,” Freeman began with the basis for the court’s exercise of equitable power. The Court stated:
The essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision.... “The task is to correct, by a balancing of the individual and collective interest, the condition that offends the Constitution.” The requirement of a unitary school system must be implemented according to this prescription.
Id. at ––––, 112 S.Ct. at 1444 (citations omitted).
Freeman stressed that the end purpose of a court’s supervision is to remedy the violation and then to restore to state and local authorities control of the school system. Id. at ––––, 112 S.Ct. at 1445. Partial relinquishment of judicial control can be a significant step in fulfilling the district court’s duty to return the control of schools to local authorities. Id. “A transition phase in which control is relinquished in a gradual way is an appropriate means to this end.” Id. The Court continued:
[O]ne of the prerequisites to relinquishment of control in whole or in part is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution.
Id.
Freeman authorizes a district court to relinquish control in stages, outlining the analysis it should follow and requiring careful articulation of its reasoning. The district court is given discretion based upon its assessment of many factors, some of which are most intangible:
A court’s discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power. Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those

aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to *764 the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court’s decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first instance.
Id. at ––––, 112 S.Ct. at 1446 (emphasis added).
In order to analyze this case under Freeman v. Pitts to determine if KCMSD has achieved unitary status, we must consider the constitutional injury, the methods selected to remedy that injury, the goals of the remedy, and the success achieved by the remedy in eliminating the vestiges of the constitutional violations to the extent practicable.
Of course, the injury is that vestiges remain of the dual school system once required by the State of Missouri. Those vestiges take the form of reduced student achievement and white flight, resulting in the anomaly of a racially isolated school district in the midst of a population with a far different racial makeup. In Jenkins II, we quoted the district court’s findings:
“[W]itnesses confirmed the conclusion reached by the Supreme Court in Brown I [Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ] that forced segregation ruins attitudes and is inherently unequal.... The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty.” “Segregation has caused a system wide reduction in student achievement in the schools of the KCMSD.”
...
The district court found that segregation in KCMSD caused the departure of the whites in the system to private schools and to the suburbs. During the years between Brown I and trial, the enrollment of KCMSD shifted from predominantly white to predominantly black. In the 1958–59 school year, blacks constituted 22.5% of KCMSD enrollment, but by 1983–84 enrollment was 67.7% black and white enrollment had dropped 80%. “[A]s of 1974, 20 years after Brown I, 39 schools were more than 90% black.... Eighty percent of all blacks in the District attended schools that were 90% black....” KCMSD later reduced the number of over-90%-black-enrollment-schools, but the district court found in 1984 that KCMSD had still not completely dismantled the dual system.
855 F.2d at 1300 (citations omitted).
The remedy consisted of a capital improvements plan to rectify the decay in the school’s physical facilities,9 numerous quality education programs, and a far-reaching magnet school plan. The goals of the remedial programs were: (1) to compensate the victims by improving the education given them; (2) to enhance the programs so as to reverse the white flight pattern, winning back white students from private and suburban schools, and thus ending the racial isolation of the victims; and (3) to use the magnet schools as a way of bringing about voluntary redistribution of children within the KCMSD itself. Id. at 1302.
The substance of the State’s argument is that the Milliken II quality education programs have been established successfully and are of superior quality to those programs offered in the suburban school districts and, therefore, that the goal of ameliorating inferior educational opportunities has been accomplished. The State presented Dr. Terrance Stewart, Assistant Commissioner of Education for the State of Missouri, as its witness with respect to the implementation of the Milliken II programs. The district court viewed his testimony as giving a glowing report of the success of the programs. However, the court made clear that the goal was to integrate the Kansas City, Missouri School District, and that the various programs were tools to be used to do so. The court rejected Dr. Stewart’s argument that no goals had been achieved. It is also significant that the testimony of Dr. Stewart did no more than describe the successful establishment of the several educational programs, but gave no indication of whether these programs had *765 succeeded in improving student achievement. On the other hand, KCMSD’s Superintendent Walter Marks, and Assistant Superintendent of Instruction Art Rainwater, testified that while the programs had been established and progress was being made both in academic achievement and reduction of racial isolation, much remains to be done.
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. See Freeman, 503 U.S. at ––––, 112 S.Ct. at 1446 (quoting Dowell, 498 U.S. at 249, 111 S.Ct. at 638). 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.
Further, Freeman did not indicate that the State is entitled to be released upon accomplishment of any particular objective without also considering whether retention of judicial control was necessary or practicable to achieve compliance with the decree in other facets of the school system. The State did not try to prove that it has demonstrated a good faith commitment to the whole of the court’s decree. See Freeman, 503 U.S. at ––––, 112 S.Ct. at 1446; see Brown v. Board of Educ., 978 F.2d 585, 592 (10th Cir.1992) ( “[S]pecific policies, decisions, and courses of action that extend into the future must be examined to assess the [defendant’s] good faith.”), cert. denied, 509 U.S. 903, 113 S.Ct. 2994, 125 L.Ed.2d 688 (1993).
KCMSD argues that the State’s evidence is insufficient to justify exercise of the court’s discretion to grant unitary status under Freeman. KCMSD’s argument has much merit, but the State asks only that we hold the district court abused its discretion in continuing the education programs.
We have considered the State’s arguments in considerable detail, and we are satisfied that Judge Clark’s comments during the four-day hearing show that he fully considered the State’s Freeman arguments. In his order, he rejected funding for some of the programs, while granting the funds for others; thus, he implicitly rejected the State’s Freeman arguments. While it might have been desirable for the court to articulate explicitly even a conclusory rejection of the State’s Freeman arguments, the district court did not abuse its discretion in continuing the quality education programs.
In view of the State’s arguments that under Freeman it is entitled to a determination on an incremental basis that KCMSD has become unitary, a few further words are appropriate.10 Dowell and Freeman both outline in considerable detail the nature of the inquiry the district court must undertake in considering this issue. These principles must be applied in analyzing the question of unitariness, and in determining the success of the remedy in eliminating the vestiges of the constitutional violations found to exist in KCMSD to the extent practicable. Our earlier opinions which we have discussed above, particularly Jenkins II and the district court orders there in issue, set forth in detail the constitutional violations and the impact upon the District. It goes without saying that careful factfinding and detailed articulation of findings will be required, particularly with respect to whether vestiges of discrimination have been eliminated to the extent practicable, and thus certain aspects of KCMSD have become unitary. It is evident that in considering the various parts of the remedy, some questions will be far more easily resolved than others. The improvement of the physical facilities is one that lends itself to relatively simple quantification. Questions of student assignments, faculty and staff composition, as well as extra-curricular activities and facilities, are only slightly more complicated.
When the question of quality of education is reached, however, the issue is far more complex. The district court correctly observed that implementation of programs in and of itself is not sufficient. The test, after all, is whether the vestiges of segregation, here the system-wide reduction in student *766 achievement, have been eliminated to the greatest extent practicable. The success of quality of education programs must be measured by their effect on the students, particularly those who have been the victims of segregation. It will take time to remedy the system-wide reduction in student achievement in the KCMSD schools, and the orders of the district court reflect that it is aware of this fact.
We must also recognize that the funding problems are an inherent part of the entire problem in KCMSD, as we observed in Jenkins II, 855 F.2d at 1305. The atmosphere within the community and the legal climate within the State have prevented KCMSD from raising the necessary funds to maintain its schools and to fund remedial programs. These are all aspects that the district court must consider as it continues to address this issue in the future.
III.
[7] The State also argues that the district court erred as a matter of law in approving salary increases for KCMSD employees in its order of June 25, 1992. Order of June 25, 1992 at 15–16. The State argues first that the salary increase remedy sought exceeded that necessary to remedy the constitutional violations, and alternatively, that if the district court had lawful authority to impose the increases, it abused its discretion in doing so. We reject the State’s arguments and affirm the district court’s June 25, 1992 order granting the salary increases.11
On September 15, 1987, the district court ordered salary increases to be paid out of the desegregation budget, finding that high quality personnel are necessary not only to implement specialized desegregation programs intended to improve

educational opportunities and reduce racial isolation, but also to ensure that there is no diminution in the quality of its regular education programs. Jenkins v. Missouri, 672 F.Supp. 400, 410 (W.D.Mo.1987), aff’d in relevant part, 855 F.2d 1295 (8th Cir.1988), cert. denied as to relevant part, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). Additional increases to be paid from the desegregation budget were sought in 1990, and after several days of hearings in June of that year, the parties reached a settlement as to salary increases to be paid equally by the State and KCMSD, with KCMSD’s fifty percent share to be funded by an increase in the real estate tax levy from $4 per $100 valuation to $4.96. The settlement specifically provided that joint and several liability would not apply to these salary obligations. The parties in this litigation did not appeal from the order, and this court dismissed an appeal filed by a group of taxpayers. Jenkins v. Missouri, 967 F.2d 1245, 1248 (8th Cir.) (property owners’ notice of appeal was ineffective since they did not move to intervene until time to appeal had already expired), cert. denied, 506 U.S. 1033, 113 S.Ct. 811, 121 L.Ed.2d 684 (1992).
In early 1992 the American Federation of Teachers and KCMSD sought additional increases in salaries to be paid as desegregation expenses. The State opposed the increases and argued that the court should order a roll-back of salaries of the KCMSD staff to the 1986–87 levels because the salary increases did not meet the goals set by the court.
After a hearing lasting four days, the district court entered its order approving the salary increases. Order of June 25, 1992 at 16. The court set forth in detail the respective contentions of the parties and supporting evidence and ordered the State to fund fifty percent of the increases and KCMSD to fund fifty percent, with joint and several liability. Most importantly in this order, the court found that Kansas City, Missouri is part of the national urban market, and that other cities are competing for Kansas City’s teachers and staff. The district court found that the State’s roll-back proposal would drastically impair implementation of the desegregation remedy. Order of June 25, 1992 at 13. The district court concluded that logic and *767 empirical data showed that in an absence of desegregation funding for salaries, the District would not be able to implement the desegregation plan. Id. at 12. Quoting Freeman v. Pitts, the court found that the “essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action.” Id. at 12 (quoting Freeman v. Pitts, 503 U.S. at ––––, 112 S.Ct. at 1444). The court referred to its ruling in 1989 that KCMSD’s difficulty in hiring and retaining qualified personnel adversely affected the desegregation plan. Id. at 13 (citing Order of July 5, 1989 at 23). In approving the 1990 salary package, the court found that salary increases for KCMSD’s personnel were “essential to comply with the [c]ourt’s desegregation orders.” Order of June 25, 1992 at 13 (quoting Order of July 23, 1990 at 6). The district court also referred to its earlier orders and decisions of this court that high quality personnel are necessary not only to implement specialized desegregation programs intended to improve educational opportunities and reduce racial isolation, but also to “insure that there is no diminution in the quality of its regular academic program.” Jenkins v. Missouri, 672 F.Supp. at 410. The court found: “In order to improve the desegregative attractiveness of the KCMSD, the District must hire and retain high quality teachers, administrators and staff.” Order of June 25, 1992 at 15. Finally, the district court concluded that the basis for its ruling is grounded “in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD.” Id.
The State makes no claim that the findings of fact of the district court are clearly erroneous. Instead, it simply argues that as a matter of law there is no support for the district court’s order, and if there is such support, the district court abused its discretion in ordering the salary payments. In great part, the State seems to be urging that we review the issue de novo based upon factual arguments that it now asserts, many based on evaluative criteria it claims the district court had adopted.
The State’s legal argument is that the district court should have denied the salary increase funding because it is contrary to Milliken II and Swann in that it does not directly address and relate to the State’s constitutional violation. The State argues that low teacher salaries do not flow from any earlier constitutional violations by the State. The State particularly targets pay of non-teacher personnel as beyond the power of the court to reach.
The State’s argument requires that we look again to the finding, which we affirmed in Jenkins II, 855 F.2d at 1300, that “[s]egregation has caused a system wide reduction in student achievement in the schools of the KCMSD” as well as departures of whites to private schools and suburbs. The goals of the remedial programs are to improve the educational lot of the victims of unconstitutional segregation, to regain some portion of the white students who have fled the District and retain those that are still there, and to redistribute the students within the KCMSD to achieve the maximum desegregation possible. 855 F.2d at 1302. The State has too narrow an approach to the nature of the constitutional violation and injury, which is extremely broad. See page 764, supra. In addition to compensating the victims, the remedy in this case was also designed to reverse white flight by offering superior educational opportunities. See Jenkins II, 855 F.2d at 1302.
Contrary to the State’s argument, the issue is not that low teacher pay in and of itself is a constitutional violation that must be remedied, but rather the systemic reduction of student achievement and white flight which require as part of the remedy

quality education programs and magnet schools. This remedy finds its earliest support in Milliken II, which stated: “In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation.... [T]he decree ... must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.’ ” 433 U.S. at 280, 97 S.Ct. at 2757 (citations omitted). *768 Milliken II discussed educational remedies deemed necessary to restore the victims of discriminatory conduct to the position they would have enjoyed in terms of education provided in a non-discriminatory manner in a school system free from pervasive de jure racial segregation. Id. at 282, 97 S.Ct. at 2758. Milliken II specifically approved remedial education programs “to overcome past inadequacies and to compensate minority children for unequal educational opportunities resulting from past or present racial and ethnic isolation.” Id. at 284–85, 97 S.Ct. at 2759–60. Indeed, Milliken II looked to habits of speech, conduct, and attitudes reflecting cultural isolation as conditions that the remedy could appropriately address. Id. at 287, 97 S.Ct. at 2760.
The establishment of the quality educational programs in KCMSD springs from these roots and from the ample findings that we have reviewed on numerous occasions.
To this beginning proposition we must then add the findings of the district court that salary funding is necessary to implement the desegregation plan. The court stated in its June 1992 order that “[l]ogic and empirical data show that in the absence of desegregation funding for salaries, the district will not be able to implement its segregation plan.” Order of June 25, 1992 at 12. It was particularly appropriate that in this same order the district court looked to the language in Freeman v. Pitts that “[t]he essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action,” slip op. at 12 (quoting Freeman, 503 U.S. at ––––, 112 S.Ct. at 1444), and further that a district court may require the expenditure of funds to implement a desegregation remedy, slip op. at 12 (citing Milliken II ). The court looked to its earlier holdings that KCMSD’s difficulty in hiring and retaining qualified personnel adversely affected the desegregation plan. Slip op. at 13. “High quality personnel are necessary not only to implement specialized desegregation programs intended to ‘improve educational opportunities and reduce racial isolation,’ but also to ‘ensure that there is no diminution in the quality of its regular academic program.’ ” Id. at 13 (citing Jenkins II ). The court also found that to improve the KCMSD’s desegregative attractiveness, KCMSD must be able to hire and retain high quality teachers, administrators, and staff. Slip op. at 15.
What we have said, coupled with the district court’s findings detailed above, demonstrates the legal basis for the court’s salary orders. Further, as we said in discussing the decay of the district’s physical facilities in Jenkins II, the constitutional violations by the State and failure to remove the vestiges of the dual school system “ ‘contributed to, if not precipitated, an atmosphere which prevented the KCMSD from raising the necessary funds to maintain its schools.’ ” 855 F.2d at 1305. The same principle applies equally to the salary issue before us. In Jenkins II we rejected an argument similar to that asserted by the State today. It is also significant that the district court, in its first order relating to salaries, specifically referred to the deterioration in KCMSD’s teacher salary position because of failure to obtain passage of a tax levy. Jenkins v. Missouri, 672 F.Supp. at 410.
We reject the State’s argument that the salary order entered by the district court was without lawful authority. We are satisfied that the district court’s factual findings provide sufficient underpinning for the legal conclusion the district court reached in this case.
We need not engage in a detailed analysis of the State’s factual arguments. There was substantial evidence to support the district court’s findings we have referred to above. Further, the court heard testimony from the State’s experts that there was a statistically significant, positive change in the turnover rates for full-time employees after the earlier salary increase, that the percentage of certified employees selecting KCMSD dramatically increased because of the earlier salary increases, that the percentage of employees lost to other school districts after the salary increase declined significantly, and that the average performance evaluation for the professional employees increased positively and significantly. The record provides ample support for the district court’s findings, and *769 we conclude that it did not abuse its discretion in approving the salary increases.
We affirm the various orders entered by the district court.
All Citations
11 F.3d 755, 88 Ed. Law Rep. 33

Footnotes

*

Although we are aware that many of those named as defendants no longer hold their ofﬁces and substitution of

public ofﬁcers is automatic under Fed.R.App.P. 43(c), the parties have not notiﬁed us of the names of the

successors in ofﬁce. Therefore, we have not amended the style in this case.

**

Editor’s Note: The court’s order denying rehearing en banc and the dissent thereto will be published in a

subsequent advance sheet. See 1994 WL 79717.

1

The Honorable Russell G. Clark, Senior United States District Judge for the Western District of Missouri.

2

The Milliken II programs included extended day, effective schools, 1986–87 magnets, district communications,

security, playground equipment, Central High School athletic team travel, and extended day program for Westport

School.

3

The ﬂagship magnets are the three schools of the Southwest cluster (Cook, Hartman, and Marlborough), Swinney

and Volker, and the Lincoln College Preparatory magnet.

4

By later agreement of the parties, the State actually recovered the money from the 1988–89 and 1989–90 credits,

out of the proceeds from property taxes that had been paid into escrow but were released for the District’s use

after the Supreme Court afﬁrmed the property tax order under which they were authorized.

5

Milliken v. Bradley, 418 U.S. 717, 744–45, 94 S.Ct. 3112, 3126–27, 41 L.Ed.2d 1069 (1974) (Milliken I ); Liddell v.

Missouri, 731 F.2d 1294, 1309 (8th Cir.) (Liddell VII ), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30

(1984).

6

Freeman v. Pitts, 503 U.S. 467, ––––, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992); Milliken v. Bradley, 433 U.S.

267, 281–82, 97 S.Ct. 2749, 2757–58, 53 L.Ed.2d 745 (1977) (Milliken II ); Swann v. Charlotte–Mecklenburg Bd.

of Educ., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971); Arthur v. Nyquist, 712 F.2d 809, 813 (2d

Cir.1983), cert. denied, 466 U.S. 936, 104 S.Ct. 1907, 80 L.Ed.2d 456 (1984).

7

This appeal bears our docket No. 93–3274, and was argued November 3, 1993.

8

Another factor to be considered is the quality of education offered to the white and black students. See Freeman,

503 U.S. at ––––, 112 S.Ct. at 1437.

9

The capital improvements are not before us in this appeal. But see Jenkins II, 855 F.2d at 1300, 1306–07.

10

Another part of the remedy we have stressed repeatedly is the development of a voluntary inter-district plan. We

observe once again that the only implementation of any such plan is the ten student exchange with the Missouri

City schools.

11

The salary increases called for in the court’s order had been completely paid when argument was heard in this

case. Presumably, the State would seek recovery of the funds from KCMSD, and whether there is a practical

effect, in view of joint and several liability, is a question that we need not ponder.

 
 13 F.3d 1170 United States Court of Appeals,
Eighth Circuit.
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, Plaintiffs–Appellees, 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, Vice–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, President, 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; Jacqueline Wellington, Member of the Missouri State Board of Education, Defendants–Appellants,
School District, of Kansas City; Walter L. Marks, Superintendent thereof, Defendants–Appellees.
No. 93–3274. |
Submitted Nov. 3, 1993. |
Decided Dec. 8, 1993.
Synopsis The United States District Court for the Western District of Missouri, Russell G. Clark, Senior District Judge, granted salary increases to school district personnel as part of remedy in ongoing school desegregation case, and the state of Missouri appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that district court did not abuse its discretion.
Affirmed.
Attorneys and Law Firms
Michael J. Fields, Asst. Atty. Gen., of Jefferson City, MO, argued (Jeremiah W. Nixon and Bart A. Matanic, on the brief) for appellant.
Wilhemina M. Wright, Washington, DC, argued (David S. Tatel, Allen R. Snyder, Patricia A. Brannan, Maree F. Sneed and Arthur A. Benson II, on brief), for School Dist., et al.
Scott A. Raisher, Kansas City, MO, argued (Frederic O. Wickham and Brian P. Wood, on brief), for intervenor American Federation of Teachers.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Opinion
*1172 JOHN R. GIBSON, Circuit Judge.

The State of Missouri once again appeals from orders of the district court1 granting salary increases to KCMSD personnel as part of the remedy in the ongoing Kansas City school desegregation case. Jenkins v. Missouri, No. 77–0420–CV–W–4, 1993 WL 546576 and 1993 WL 566488 (W.D.Mo. June 30 and July 30, 1993). We affirm.
We have in our most recent opinion affirmed salary orders entered by the district court on June 25, 1992, 1992 WL 551568. Jenkins v. Missouri, 11 F.3d 755 (8th Cir.1993). In our opinion we outlined the history of the court’s orders dealing specifically with salaries as a part of the desegregation remedy, including the original salary order of September 15, 1987, and a settlement reached by the parties in 1990, and finally, the affirmance of the 1992 order. We need not repeat that history which is set out in our earlier opinion. 11 F.3d at 766–69. Additional hearings were held on salary motions for the school years 1993–94, 1994–95, and 1995–96, and the district court in an order dated June 30, 1993 granted salary increases to be effective in the three school years.
I.
[1] The State first argues that the district court should have denied the salary increase funding, as it is contrary to Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ), in that it does not directly address and relate to the constitutional violation. The State argues that low teacher salaries do not flow from any earlier constitutional violations by the State, and therefore violate Milliken II, as well as Swann v. Charlotte–Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), requiring the remedial steps be carefully tailored to correct the vestiges of prior segregation and no more. The State particularly targets pay of non-teacher personnel as not flowing from constitutional violations by the State, and beyond the power of the court to reach.
We have rejected the same arguments with respect to the 1992–93 salary funding order. See Jenkins v. Missouri, 11 F.3d 755, 766–69 (8th Cir.1993). We reasoned that quality education programs and magnet schools were a part of the remedy for the vestiges of segregation causing a system wide reduction in student achievement in the KCMSD schools. Id. at 767–68. Further, we pointed to the district court’s findings that the failure to remove the vestiges of the dual school system precipitated an atmosphere which prevented KCMSD from raising necessary funds, specifically those to maintain required salary levels. Id., at 768–69. It is significant that in its order for the earlier year the district court underscored the language from Freeman v. Pitts, 503 U.S. 467, ––––, 112 S.Ct. 1430, 1444, 118 L.Ed.2d 108 (1992), that “[t]he essence of a court’s equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action.” Order of June 25, 1992 at 12. The significant finding of the court with respect to the earlier funding order was that the salary increases were essential to comply with the court’s desegregation orders, and that high quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD.
We reject the State’s argument that the salary order is contrary to Milliken II and Swann.
II.
[2] The State next argues that the district court’s finding that KCMSD competes in a national urban market for teachers is clearly erroneous. We first observe that this is an argument that the State did not make with respect to this same finding in the June 1992 district court order. The essence of the State’s argument is that it presented four witnesses on the issue of the national urban market, that there was and is no national urban market from which school districts compete for staff in any significant fashion, *1173 and even if there was, KCMSD does not compete in it.
We have said on numerous occasions, particularly in school desegregation cases, we give great deference to the factual findings of the district court, and reverse only if clearly erroneous, under the standards set forth in Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). The litigation before us dates back to 1977, with Judge Clark presiding over the case during the entire period. We traced this history in Jenkins v. Missouri, 807 F.2d 657, 661–62 (8th Cir.1986) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987), and on numerous occasions since that time we have updated the long chronology. Contrary to the State’s arguments, there was substantial evidence that the District actively recruits and competes for teachers on a nationwide basis. In 1991 and 1992 KCMSD representatives traveled

to New Mexico, North Carolina, Texas, Florida, Wisconsin, Arizona, Colorado, Michigan, New Jersey, Ohio, and New York to recruit qualified teachers. In addition, they advertise in numerous journals on a nationwide basis. Both Superintendent Marks and AFT witness Gould testified about the difficulty in recruiting teachers to work in urban school districts.
The evidence introduced was sufficient to support the district court’s findings that there was a national urban market. Even the testimony offered by the State tended to confirm this fact. The State’s witnesses, though they stated they knew of no national market, conceded that their own school districts did at least some nationwide recruiting.
The record provides abundant support for the district court’s finding and only ambiguous evidence detracting from it. This record in no way inspires a “definite and firm conviction that a mistake has been committed.” Anderson v. Bessemer City, 470 U.S. at 573, 105 S.Ct. at 1511. Therefore, we may not disturb the district court’s finding.
III.
[3] Finally, the State argues that the court abused its discretion in approving the salary increases even if pay raises for some KCMSD employees are permissible. The State contends that the district court abused its discretion when it did not properly assess the results based on evaluative criteria the court had approved earlier, that the expert testimony provided by AFT and KCMSD failed to show that the salary increases had a positive effect on the quality of the KCMSD staff, and that the court had no basis for its finding that the non-teacher personnel were entitled to salary increases. The district court first found that because the salary increases are a necessary component of the desegregation program, the court only needed to determine the extent to which a raise would be appropriate. The district court then conducted a detailed analysis of the proposals submitted by the three parties. Our analysis of the district court’s careful factfinding demonstrates that it did not abuse its discretion.
In its proposal to the district court, the State argued that only certain of the instructional personnel should receive a one percent plus $400 increase for fiscal year 1994. The State, in essence, asked the court to freeze salaries at fiscal year 1993 levels for the other teachers and the rest of the personnel in the KCMSD. The State has failed to give, either to the district court or to us in this appeal, any clear basis for differentiating between that group of teachers who would be entitled to a raise and those who would not. The district court rejected the State’s proposal, stating that the State had failed to submit a serious proposal and that the State’s plan was “not consistent with the meaningful implementation of the desegregation program.” Order of June 30, 1993 at 4. Viewing the State’s proposals as “little or no benefit” to crafting a desegregation remedy, the court pointed to the legislature’s failure to pass legislation which would enable the KCMSD to fund its share of desegregation expenses. Id. at 4–5. The district court then carefully weighed the proposals made by the AFT and KCMSD, and concluded that because resources were not available to fund the AFT plan, the court could not implement AFT’s suggestions. Id. at 5. The court also referred to its earlier adoption of a less expensive proposal with respect to the Long *1174 Range Magnet Plan as evidence that the cost savings there would be used to the benefit of the desegregation program and help facilitate KCMSD’s ability to fund salary increases. Id. at 8. We have observed in numerous orders appealed to us that the district court has juridically pruned applications of funding that have been presented to it. We are convinced that the district court’s detailed analysis demonstrates a careful exercise of discretion and prevents any conclusion that it abused this discretion.
The State also argues that the district court abused its discretion in not considering the evaluative criteria the court had earlier endorsed and approved, and that the salary increase has not changed the basic pattern of hiring or departures in the District. In a sense, the essence of the State’s argument is that the district court should have accepted the testimony of its witnesses in this respect, a proposition we have on two occasions in this long litigation rejected. See Jenkins v. Missouri, 942 F.2d 487, 490–91 (8th Cir.1991), and Jenkins v. Missouri, 965 F.2d 654, 657 (8th Cir.1992). It is enough to say that the district court recognized and rejected these specific arguments in its June 1992 order. Order of June 25, 1992 at 9–11, 15. In the order before us, the court clearly stated that it declined to make a different ruling on substantially unchanged evidence. Order of June 30, 1993 at 2. It is evident that the district court had before it substantial evidence of a statistically significant reduction in the turnover rates for full-time employees, a dramatic increase in the percentage of certified employees selecting KCMSD because of the salary increases, and a significant decline in the number of employees lost to other districts. Further, the court heard testimony that the average performance evaluation for the professional employees increased positively and significantly.
The State also disputes the two percent per year pay increase the court granted to certain non-teacher personnel, and 2.5 percent per year pay increase to the remaining group, including maintenance workers, cooks and the like. We have already discussed the court’s finding that salary increases for KCMSD’s personnel were essential to comply with the court’s

desegregation order. Order of June 25, 1992 at 15. To improve the desegregative attractiveness of the KCMSD, the District must hire and retain high quality teachers, administrators, and staff. Id. In the June 1993 order, the district court reiterated that the salaries of KCMSD personnel are appropriately considered a desegregation expense. Order of June 30, 1993 at 2. It made specific findings with respect to the two percent per year increase for administrators and non-represented employees, and with respect to the operating, warehouse, maintenance, mail room and food service employees, and stated that the evidence reaffirmed that support personnel are critical to the successful implementation of the desegregation program. Id. at 12. These findings are not shown to be clearly erroneous, and are a sufficient basis to support the court’s finding with respect to salary increases for those personnel, and accordingly, the district court did not abuse its discretion in ordering these increases.
We believe that the court did not abuse its discretion in the June 1993 order. It is evident that in considering the salary proposal now before us, the district court carefully analyzed the positions of the three parties, threaded its way through conflicting evidence, made findings of fact, and accepted the proposals it considered the best for the desegregation remedy of KCMSD. In addition, the district court has not hesitated to reject requests for funding that it determined were not appropriate. Finally, as we have observed in our latest opinion, the district court has requested submissions for funding proposals based on alternative phaseout periods of three, five, seven, or ten years. Thus, all of its careful analysis leads to the inescapable conclusion that the court is completely aware of not only the full scope but also the particular details in the desegregation remedy, and that it is anticipating the day when it may declare certain portions of the program unitary. The district court did not abuse its discretion in the June 1993 order.
We affirm the judgment of the district court.

All Citations 13 F.3d 1170

Footnotes

1

The Honorable Russell G. Clark, Senior United States District Judge for the Western District of Missouri.

 
 23 F.3d 1297 United States Court of Appeals,
Eighth Circuit.
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.
No. 93–3975. |
Submitted March 31, 1994. |
Decided May 3, 1994.
Synopsis The United States District Court for the Western District of Missouri, Russell G. Clark, J., granted salary increases to school district personnel as part of remedy in ongoing school desegregation case. State of Missouri appealed. The Court of Appeals, 13 F.3d 1170, affirmed. School district moved to continue quality education programs for two school years. The District Court approved continuation of programs. State appealed. The Court of Appeals, John R. Gibson, Senior Circuit Judge, held that: (1) state did not show that school district had achieved unitary status regarding quality education offered to its students so as to entitle state to either elimination of requirement that it provide funding for district quality education programs or phased-in decrease in state funding, and (2) enactment of state legislation changing method of computing foundation formula aid for school districts, such that full-time kindergarten child was counted as one student rather than as one-half student, did not render state entitled to reduction in its funding liability for school district desegregation programs.
Affirmed.
Attorneys and Law Firms
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.
Opinion

JOHN R. GIBSON, Senior Circuit Judge.
The State of Missouri again appeals, the second time in less than a year, an order of *1299 the district court1 approving Milliken II2 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 ) (as amended on denial of rehearing), 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, 503 U.S. 467, 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 testimony3 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 (summarizing Dr. Rainwater’s similar testimony at earlier hearing). 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 (summarizing Dr. Stewart’s testimony at earlier hearing).
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.
*1300 I.
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).
[1] 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. *1301 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) (Beam, J. dissenting, joined by Bowman, Wollman, Loken and Morris Sheppard Arnold, JJ.). 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 have now made filings with the district court pursuant to the April 16, 1993 order, and we presume that the district court will in time conduct hearings on these issues. In Jenkins IX, we outlined many of those considerations:
Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good faith commitment to the whole of the court’s decree and to those provisions of the law and the constitution that were the predicate for judicial intervention in the first instance.
11 F.3d at 763–64 (quoting Freeman, 503 U.S. at ––––, 112 S.Ct. at 1446 (emphasis added in Jenkins IX )). We framed the inquiry as outlined in Dowell:
[T]he Supreme Court stated that in determining whether there was constitutional *1302 compliance in a school desegregation case, the district court “should address itself to whether the Board had complied in good faith with the

desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable....”
Jenkins IX, 11 F.3d at 763 (quoting Dowell, 498 U.S. at 249–50, 111 S.Ct. at 637–38).
The State argues that it has demonstrated its good faith commitment to all of the court’s decrees, and that its objection to numerous aspects of the desegregation program in litigation does not negate such commitment or reflect an unwillingness or intransigence toward achieving the goal of providing equal educational opportunity. It argues that it has clearly met the Supreme Court standards for good faith commitment. In essence, the State is asking this court to determine an issue which the Supreme Court in Dowell and Freeman has made clear is an issue for factual determination by the district court. As we said in Jenkins IX, and as the record reflects in the appeal before us, the State has not attempted to make a factual showing on this issue for determination by the district court. 11 F.3d at 765. This issue must first be developed by the district court.
When the district court considers the Freeman and Dowell issues drawn into sharp focus by its order of April 16, 1993, and now briefed in detail by the parties, we are satisfied that the court will be mindful of its responsibility to make detailed factfindings as it considers the several inquiries required by Freeman and Dowell. The long history of this litigation demonstrates that that order will likely be the subject of an appeal, and the district court will render substantial assistance to review on appeal by making a full and complete record. We are confident that when the district court’s order is entered, we will have an adequate record before us for our review.
II.
[2] The State also argues that passage of Missouri Senate Bill 380 requires an adjustment in the State’s desegregation liability. Senate Bill 380 counts a full-time kindergarten child as one student for purposes of computing the foundation formula aid for school districts in Missouri, whereas the earlier formula counted such children as one-half a student. The State currently pays part of the cost of full-day kindergarten as a Milliken II quality education cost. As a result of the combination of Senate Bill 380 and the State’s Milliken II obligations, the State argues that KCMSD will receive payments greater than the total cost of the full day kindergarten program, and that this is a windfall.
It must first be recognized that the funding under Senate Bill 380 measured by full-day kindergarten students need not be spent on kindergarten programs. It is simply a way of measuring allocations of general state aid that can be used for any school purpose.
The district court recognized that the future impact of Senate Bill 380 was far from certain. The State’s witnesses testified that the exact amount KCMSD would receive could be significantly different due to a change in the method by which all students are counted, with the new system relying more heavily on daily attendance than the old system. There is a gradual phase-in of Senate Bill 380 formula in increments of 25% over a four year period, and the new formula would not be entirely implemented until the 1996–97 school year. Further, the appropriation process could increase or decrease the amount of money available, as could the amounts withheld for growth. In addition, there are uncertainties due to the state finance litigation.
These uncertainties are reason enough for affirming the district court’s decision to reject the State’s argument. Exactly what KCMSD may receive and when it will receive it because of change in the foundation formula is yet to be determined.
The State has not demonstrated that the district court made findings of fact that were clearly erroneous, or abused its discretion in rejecting the State’s request to allow an off-set of the full-day kindergarten monies to reflect amounts received under Senate Bill 380.
We affirm the order of the district court.
All Citations
23 F.3d 1297, 91 Ed. Law Rep. 489

Footnotes

1

The Honorable Russell G. Clark, Senior United States District Judge for the Western District of Missouri.

2

Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). These programs included reduced class

size, attainment and maintenance of AAA status, full-day kindergarten, early childhood education, extended day,

effective schools, and district communications.

3

The district court held an extensive hearing on approval of the Milliken II quality education programs for the 1992–

93 year, which we have described in Jenkins IX, 11 F.3d at 764. While KCMSD’s motion to renew those programs

was pending, Freeman v. Pitts was decided. The State then asked that the Milliken II quality education programs

be declared unitary under the approach articulated in Freeman and Board of Education v. Dowell, 498 U.S. 630,

111 S.Ct. 630, 112 L.Ed.2d 715 (1991). On June 17, 1992 the district court ordered continuation of the Milliken II

programs for the 1992–93 year, and we afﬁrmed. See Jenkins IX, 11 F.3d at 760. We cited as additional support

for the district court’s order its April 16, 1993 consideration of the Freeman issue in adopting the long range

magnet renewal plan, and also the district court’s July 30, 1993 order concerning the Milliken II programs. Jenkins

IX, 11 F.3d at 761–62. We have ordered, on the State’s motion, that the record before the court in Jenkins IX be

made a part of the record before the court in this appeal.

4

At the time of our decision in Jenkins IX, we had before us that portion of the July 30, 1993 order dealing with

salary issues, but the portion of the order relating to Milliken II programs had not been appealed. See 11 F.3d at

762. After the district court denied the State’s motion for reconsideration on October 20, 1993, the State appealed

on the Milliken II issues. During argument of Jenkins IX the parties did not refer to the July 30, 1993 order, nor

was it mentioned in the argument of Jenkins v. Missouri, 13 F.3d 1170 (8th Cir.1993) (Jenkins X ). In Jenkins IX

we discussed the Milliken II quality education portion of this order insofar as it “ﬂeshes out the meaning of the

earlier district court orders.” 11 F.3d at 762.

5

The State says that its position in the district court was that “Pitts justiﬁed either an immediate or gradual return to

the KCMSD of control and responsibility for the Milliken II programs.” It summarized its argument by stating that it

is “entitled to a declaration of unitary status with regard to the Milliken II quality education programs in place in the

KCMSD.” Further, “with regard to the quality of education component ... the State sought withdrawal of District

Court supervision after presenting evidence of compliance with the desegregation decrees of the District Court.”

6

The State argued in Jenkins IX that it had complied fully with the district court’s desegregation decree as to the

Milliken II programs, “and is entitled to have this aspect of [KCMSD] operations declared unitary, at least

regarding the State’s obligations.” “Because of the State’s record of full and satisfactory compliance with this

aspect of the desegregation decrees and because the State can do no more to ensure provision of quality

education and remedial programs to the KCMSD than it has already done by funding the programs, the State

meets squarely this measure of ‘unitariness’ for the Milliken II aspects of the desegregation remedy.” The State

argued that “this Court should either declare the Milliken II aspect of KCMSD’s operations to be unitary” or

reverse and remand for speciﬁc ﬁndings of facts.

Before the district court on the motion which led to Jenkins IX, the State ﬁrst ﬁled a rather general objection to

the budget for the 1992–93 school year on February 7, 1992. After the decision in Freeman, the State ﬁled a

response with respect to this school year in which it stated: “Pitts supports the immediate elimination of the

Year VIII [1992–93] programs as the ﬁrst step in a phaseout process, the purpose of which is to ultimately

totally reestablish local control over school district operations.” “[T]he State believes the programs should be

returned to local control with extraordinary funding ended now. In the alternative ... a brief phaseout period

could be imposed, gradually increasing the KCMSD responsibility for continued implementation and actual

funding of the annual budget programs through its local autonomy and local resources.” “It will be up to the

KCMSD to decide whether, in what form and to what extent, to continue the programs at issue.” “The [c]ourt

here can take the ﬁrst step toward returning control of the KCMSD to the local authorities by terminating its

supervision over these annual budget programs, and requiring the District to resume both control and the ﬁscal

responsibility for the continuation of such programs....”

 
 38 F.3d 960 United States Court of Appeals,
Eighth Circuit.
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. 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, 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, Defendants–Appellants, School District of Kansas City; Walter L. Marks, Superintendent thereof; Paul V. Arena, Member of the Board of Directors; Paul B. Ballard, Member of the Board of Directors; Alex P. Ellison, Member of the Board of Directors;
Dr. Julia H. Hill, Member of the Board of Directors; Rev. John Navarre, Member of the Board of Directors; Aasim Baheyadeen, Member of the Board of Directors; Ruth L. Bauch, Member of the Board of Directors; Sue Fulson, Member of the Board of Directors; E.J. Holland, Jr., Member of the Board of Directors, Defendants.
Nos. 94–1405, 94–1408, 94–1414, 94–1496 and 94–1681. |
Submitted May 4, 1994 and June 1, 1994. |
Decided Oct. 13, 1994.
Synopsis Black students from urban school district brought suit alleging that they were denied admission into school district because of race. The United States District Court for the Western District of Missouri granted summary judgment for state and schools and students appealed. The Court of Appeals, 904 F.2d 415, reversed and remanded with directions in part and vacated in

part. On remand the District Court denied approval of proposed settlement plans and appeals were taken. The Court of Appeals, 981 F.2d 1009, remanded. On remand the District Court, Russell G. Clark, J., approved plan involving interactive electronic communication between students, and rejected plan proposed by suburban district. Appeal was taken. The Court of Appeals, John R. Gibson, Senior Circuit Judge, held that: (1) interactive electronic communication between districts did not satisfy desegregation requirements; (2) trial court did not err in rejecting suburban plan; and (3) remand would be required for further efforts to develop plan agreeable to parties concerned.
Affirmed in part; reversed in part and remanded.
Attorneys and Law Firms
*961 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.
Opinion
*962 JOHN R. GIBSON, Senior Circuit Judge.
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) (referring to slip op. at 21 (W.D.Mo. April 16, 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 *963 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. The court stated that a committee should be selected which would be responsible for the screening of applicants. Id. at 7.
The court found NKCSD’s concerns about involving itself in the litigation to be reasonable, but that the provisions in the plan for the exemption of liability were of some concern. Even more so was the provision that the Desegregation Monitoring Committee would have no authority or involvement in the VIT program or its administration. This it found to be “unacceptable and reason alone to reject the NKC plan.” It would be irresponsible for the court to adopt a plan without control over the ultimate use of the funds. Id. It could not and would not approve a plan which would limit the ability of the court, through the desegregation monitoring committee, to monitor the desegregation program. Id.
The court pointed out that it had rejected the same plan offered by NKCSD on two previous occasions. Id. at 8. It believed, however, that the parties had “taken an important first step.” The NKC plan, however, was unreasonable and was rejected, and the State plan was wholly reasonable but has not been accepted. The State plan was found to be “the appropriate starting point for negotiation of a viable VIT plan.” The court then ordered the parties to meet with NKCSD officials to attempt to negotiate a VIT plan that addresses the enumerated concerns. Id.
The district court, consistent with our suggestion in Jenkins VIII, appointed Magistrate Judge Robert E. Larsen to attempt to bring the parties together to negotiate a successful transfer plan. Jenkins VIII, 981 F.2d at 1016. Judge Larsen has filed reports indicating that his efforts were not successful.
The Desegregation Monitoring Committee in the summer of 1993 proposed to Judge Clark a SHARE NET plan for voluntary student transfers. Slip op. at 1 (Aug. 9, 1993). Under SHARE NET students in suburban districts would communicate with selected students in KCMSD using computers and either electronic mail or fax transmissions. Every other week they would take joint field trips outside either of the school districts. Summer camp sessions were part of the program. The district court expressed the hope that the SHARE NET plan could be considered an initial positive step toward establishment of a voluntary interdistrict transfer plan. Slip op. at 5–6 (Jan. 10, 1994). Comments of the parties were sought, and *964 KCMSD, the Jenkins Class, American Federation of Teachers, and the State all objected that the plan was not a student transfer plan at all. The Desegregation Monitoring Committee then forwarded to the district court a proposed budget, and a hearing was held at which opposition was expressed by the parties. The district court expressed the thought that the SHARE NET plan offered opportunity for children of KCMSD and participating suburban districts to “interact both via computer and in joint field trip and summer camp settings.” Slip op. at 3 (Jan. 10, 1994). It found that the SHARE NET proposal offers “opportunities which are beneficial to the remedial plan in the KCMSD.” Id. The district court further found that “the opportunity for interaction through computers is a positive step to the desegregation program,” and offered “sufficient desegregative and educational opportunities for the court to order it funded as part of the remedial plan.” Id. at 4. It further found that the SHARE NET plan offered “opportunities to both the children of KCMSD and the suburban school districts,” as an “important first step in the

renewed relationship between these entities.” Id. at 5. The district court ordered funding of the program at a cost of approximately $1.2 million.
The State moved to alter or amend. See slip op. at 1 (Feb. 14, 1994). The district court, in an order denying this motion, looked to affidavits of suburban school administrators that the SHARE NET program provided a means of establishing relationships between administrators, students and patrons of the suburban districts and KCMSD, and that it would be a beginning of a fruitful dialogue in the area of interdistrict transfer with some educational benefit. Id. at 2. The court found that the program had substantial merit as an educational tool and as an opportunity for KCMSD and the suburban districts to begin to develop positive relationships, and allowed the program to continue. Id.
The State, KCMSD and the Jenkins Class all appealed. (Appeal Nos. 94–1408, 94–1496, 94–1414, 94–1681). The district court filed a statement of its reasons for adopting the plan.
After the filing of this appeal, a motion to stay implementation of this order was filed with us, and after first granting the motion in its entirety, we later amended our order to permit the summer camp program to proceed in the summer of 1994 because, at the time we considered the motion, $250,000 had already been expended toward the program, and another $200,000 was yet to be expended.
Following our order and presentation of statements of positions of the parties at the argument in the related appeal, the district court scheduled an additional hearing on the SHARE NET program and took testimony from a number of witnesses. This record has now been certified to us.
I.
[1] While we are sympathetic with the position of the district court in approving the SHARE NET program, in view of the long and frustrating history of efforts to achieve a voluntary interdistrict transfer plan, we believe that the SHARE NET plan lies outside the limited area available to the district court in crafting a desegregation remedy. Milliken II teaches that the remedy must be determined by the nature and scope of the constitutional violation, and be designed “to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Milliken II, 433 U.S. at 280–81, 97 S.Ct. at 2757 (quoting Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I )). The shortcoming of the SHARE NET plan is simply that the high water mark of the record in support of the plan is that it will build relationships between students of KCMSD and the suburban districts, as well as teachers and administrators, begin a fruitful dialogue in the area of interdistrict transfer, and develop positive relationships. There is simply not evidence in the record before the district court that the establishment of such a plan and its successful implementation would remedy any constitutional violations.
What we have before us is simply a voluntary interdistrict electronic communication program which will indeed put students in *965 the differing districts in contact with each other electronically, but not in the physical sense. The students are in reality sitting before computer screens miles apart.
A somewhat similar plan involving two-way television contact with weekly classroom visits was rejected by the Fifth Circuit in Tasby v. Estes, 517 F.2d 92 (5th Cir.), cert. denied, 423 U.S. 939, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975).
The record before the district court reveals that numerous witnesses, even those devising the program, admitted that the plan would not materially advance the cause of desegregation or have a positive effect on the racial composition of any KCMSD school. There was testimony that the program would more likely have a negative effect on desegregation, that it was incompatible with certain KCMSD magnet themes, and that it might compete with the district’s computer magnets for suburban transfer students. In addition, there was testimony that the requirement of two hour blocks of time set aside for utilization of the program would have a deleterious influence on not only the magnet programs in many of the schools, but the other educational programs in KCMSD.
The statements of the Desegregation Monitoring Committee demonstrate the critical weakness of the plan. The DMC hoped the plan would be considered as an initial positive step toward establishment of a VIT plan. We believe that more than initial positive steps must be required to meet Milliken II. Indeed there was no evidence submitted that the plan would have a

desegregative impact upon student enrollment in KCMSD.
In addition, an examination of the plan reveals that the cooperating suburban school districts would receive computers, modems, fax machines and other equipment, as well as an unrestricted annual cash payment of $1,750 per student, which under the plan need not be spent on the SHARE NET program itself but could be utilized for any purpose. The other students at the suburban district schools would have use of the computer equipment. We believe that the evidence demonstrates that the plan cannot pass muster under Milliken II.
With respect to the summer camp program involving students of the participating suburban districts and KCMSD, the district court is at liberty to assess the experience of the camp conducted in the summer of 1994, and if it concludes that the camps had an appropriate desegregative function, may consider continuation of them.
II.
[2] The Jenkins Class argues that the district court has abused its discretion and erred in finding that the terms of the North Kansas City VIT proposal are wholly unreasonable, and argues that the proposal is a constitutionally permissible method of implementing the desegregation remedy. It argues that the plan utilizes a formula reflecting the district’s incremental expenditures, assures cost neutrality, and in the long run closely approximates the Liddell funding formula. The Class argues that the evidence and the State’s admissions conclusively establish that NKCSD requires additional capital facilities in order to implement its VIT plan, that it is reasonable for NKC to utilize its discretion in the assignment of transfer students, and that the district court gave weight to irrelevant and otherwise improper factors in rejecting the NKCSD plan.
We are convinced that the district court did not abuse its discretion when it concluded that the North Kansas City plan was unreasonable, and that the determination was based on findings of fact that are not clearly erroneous.
We have referred above to the findings with respect to operating costs, specifically the funding for additional teachers and nurses. See slip op. at 4–5 (Dec. 22, 1993). The district court did not clearly err in making these findings.
With respect to the additional classroom facilities, it has not been shown that the district court clearly erred in finding that the plaintiffs failed to present sufficient evidence to prove that NKCSD was currently at capacity. Id. at 5. The court left the issue open for further exploration. Id. The court expressly found that expenditure of capital funds in the receiving district as a result of a *966 VIT program should be compensated, and with this proposition the State had no quarrel, id. at 6, nor do we. The court’s rejection of capital funding was based on the fact that there was “neither a showing of actual transfer numbers, nor an adequate showing of capacity requirements.” Id. The district court did not abuse its discretion in these rulings, nor were the underlying findings of fact, decided in part on credibility determination, clearly erroneous.
The district court did not abuse its discretion in encouraging the selection of a committee that would be responsible for the screening of applicants.
The district court further found that the plan submitted by the State is a reasonable one, with the obvious deficiency that not one suburban district has agreed to participate. Id. at 8. The district court added “there may well be sufficient negotiating room above the terms outlined by the State for several viable alternatives to be created.” Id. at 3. The Jenkins Class position on appeal has been to forego specific attacks on the State plan, but simply to argue generally that the NKCSD plan is preferable, that it could be implemented, and represents the only terms under which it will participate, and that any further efforts will be futile.
The ultimate point made by the district court was that while the NKCSD plan was unreasonable, and that of the State reasonable but ineffective, the State plan did create a starting point for development of an interdistrict plan that will be effective in achieving the actual transfer of students. Id. at 8.
III.

In Jenkins VIII, we traced the orders of both the district court and this court calling for creation of a voluntary interdistrict transfer plan. Jenkins VIII, 981 F.2d at 1011. Our en banc decision in Jenkins v. Missouri, 807 F.2d 657, 683–84 (8th Cir. 1986) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987), requires no less. Judge Clark has made clear that a viable VIT plan is absolutely essential before consideration can be given to eventual declaration of unitary status. In Jenkins VIII we recognized that “the State, through its legislative and administrative bodies has authority to effectively establish an interdistrict plan if it chooses, and may require suburban districts to accept minority transfer students from KCMSD.” Jenkins VIII, 981 F.2d at 1016. “The State could establish such a plan and implement it without constraints that limit the courts.” Id. We pointed to “the meaningful and effective action of the State in establishing such plans as demonstration of a commencement of responsible assumption of local control of educational policies as referred to in [Board of Education v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), and Freeman v. Pitts, 503 U.S. 467, ––––, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992) ].” Jenkins VIII, 981 F.2d at 1016.
We are mindful that the Supreme Court has granted certiorari to consider our opinion in Jenkins v. Missouri, 11 F.3d 755 (8th Cir.1993) (Jenkins IX), dealing with whether the quality education programs were unitary,2 one facet of the desegregation program in Kansas City. The issue of the unitariness of the other aspects has not yet been put in issue in this case. Thus, a viable interdistrict transfer plan may be validly considered by the district court in determining whether further orders declaring the district to be unitary may properly be entered.
It is evident that the State’s plan, no matter how reasonable, has failed to attract favorable reaction from the suburban school districts. Slip op. at 3 (Dec. 22, 1993). For the plan to be successful, and to promise “realistically to work now,”3 more must be done either by way of further inducements to *967 the suburban districts, or in more coercive actions that the State is empowered to take. As the district court recognized some nine years ago, if the State does not demonstrate its commitment, the court “will seek other methods of accomplishing the [VIT] at the State’s expense.” Jenkins v. Missouri, 639 F.Supp. 19, 51 (W.D.Mo.1985), aff’d as modified, 807 F.2d 657 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).
It must be remembered that a voluntary interdistrict transfer plan is voluntary insofar as the suburban school districts, and the students from KCMSD that are interested in transferring to such districts, are concerned. The State of Missouri, however, is a constitutional violator, and is subject to coercive remedial orders. The district court should not hesitate to explore the propriety of further incentives, including some suggested by NKCSD, that are consistent with prior orders of this court and that will enhance the probability of an effective voluntary interdistrict transfer plan being established. To this end we remand to the district court with directions to spell out in detail a plan that will meet constitutional standards, and be sufficiently attractive to the suburban districts to “work now.” The district court may, if it deems it appropriate, order state educational officials to assist in this effort. When this has been done, the suburban school districts will for the first time have a specific plan to consider.
Many of the provisions in the State’s plan, insofar as they are consistent with what we say today, may be incorporated essentially as written. A few further words are in order.
The State accepts the proposition that incremental expenditures for operating expenses so as to assure cost neutrality must be a part of such a plan. Further, the State accepts the proposition that capital expenditures in the suburban school districts that are necessary to accommodate such programs, where current capacity is not available, is a required aspect of the plan. As we pointed out in Jenkins VIII, 981 F.2d at 1015, if this requires adjustments for lessened need for facilities in KCMSD, such offsets can be made. The State accepts responsibility for the required transportation.
Further, the State plan contains provision for a voluntary interdistrict transfer authority with responsibility to recruit and arrange for assignment of students to the various suburban districts, and to perform an oversight function so as to make unnecessary detailed supervision by the Desegregation Monitoring Committee. However, some reporting function by the DMC may be desirable so as to satisfy the concerns of the district court, and to supplement those reports that may be received from the voluntary interdistrict transfer authority.4 See slip op. at 7 (Dec. 22, 1993).
We are mindful of the difficult issues that are presented by the differing indemnity provisions that have been contained in the several plans. We recognize the importance of such provisions, but are also concerned that they not be used to avoid legal responsibility unduly. The crafting of such provision we believe is best left to the discretion of the district court.
We believe that there are other modifications and supplements to the State plan that are consistent with prior orders of this court and that could reasonably be expected to encourage suburban school districts to participate in a voluntary interdistrict

transfer plan:
(1) the State should be required to provide funding for the construction, expansion and renovation of capital facilities in participating SSDs for the purpose of providing such space as will allow each SSD to maintain existing class size and school assignment policies;
(2) in the first year of operation of any such plan, VIT students will attend SSDs on a space available basis, and the State will survey participating SSDs to arrive at a uniform assessment of the space available, and foreseeably available, and of the additional capital support that would be *968 required to allow the participating SSDs to accept additional students consistent with their current class size and assignment policy;
(3) the policy of school selection may be by transportation zones within KCMSD which will govern student placement and assignment, except when it is necessary for a participating SSD to accept students from other zones in order to meet its commitment with respect to the number of transferring students it will accept;
(4) the district court should establish a limit to the obligation of the State to fund transfers to a specific number of eligible students; the State suggested limit seems reasonable to us; and
(5) the district court should determine a specific minimum period of commitment for each participating SSD when no capital improvements have been involved, possibly three years. The acceptance of funding for capital improvements should carry a concomitant commitment to accept VIT students during a longer period, considering the effective life of the improvements, and the termination point for court ordered desegregation funding.
Certainly the district court, with its long experience in attempting to initiate a voluntary interdistrict transfer plan, will have thoughts as to additional provisions that are consistent with the prior orders of this court and that could reasonably be expected to encourage suburban school districts to participate in the voluntary interdistrict transfer plan. The task of the district court is to exercise its best judgment to develop a plan that will have the best chance of being accepted by the suburban district. These should be incorporated in an amended plan that the State, if need be, may be compelled to offer to these districts.
We affirm the order of the district court with respect to the North Kansas City plan, reverse as to SHARE NET, and remand for development of a plan the state shall offer to suburban districts.

All Citations 38 F.3d 960, 95 Ed. Law Rep. 94

Footnotes

1

All of the district court opinions to which we refer are captioned Jenkins v. Missouri and entered under district

court docket number 77–0420–CV–W–4. None of these opinions were published. For simplicity’s sake, we will

cite them in the following form: slip op., page number and date.

2

There we followed the teachings of Dowell, 498 U.S. at 249, 111 S.Ct. at 637–38, and Freeman, 503 U.S. at

––––, 112 S.Ct. at 1446, in holding that the quality education programs were not unitary. Jenkins IX, 11 F.3d at

765. See also Jenkins v. Missouri, 23 F.3d 1297 (8th Cir.1994) (Jenkins XI ). Jenkins XI deals with the same

arguments repeated in less than a year with respect to the district court’s order on the quality education programs

for two later school years.

3

Green v. New Kent County Sch. Bd., 391 U.S. 430, 439, 88 S.Ct. 1689, 1694–95, 20 L.Ed.2d 716 (1968), quoted

in Freeman, 503 U.S. at ––––, 112 S.Ct. at 1436, and Jenkins VIII, 981 F.2d at 1016.

4

The State has objected to the deﬁnition of minority students in the NKCSD plan to include minorities other than

African–Americans, speciﬁcally Hispanic and Asian students. Law of the case may govern the issue, but we

believe that it should ﬁrst be considered by the district court.

 
 115 S.Ct. 2038 Supreme Court of the United States
MISSOURI, et al., Petitioners v.
Kalima JENKINS, et al.
No. 93–1823. |
Argued Jan. 11, 1995. |
Decided June 12, 1995.
Synopsis State appealed from orders of the United States District Court for the Western District of Missouri entered in school desegregation case. The Court of Appeals for the Eighth Circuit affirmed, 11 F.3d 755 and 13 F.3d 1170, and certiorari was granted. The Supreme Court, Chief Justice Rehnquist, held that: (1) orders designed to attract nonminority students from outside the school district into the school district sought interdistrict goal which was beyond the scope of intradistrict violation identified by District Court; (2) order requiring across-the-board salary increases for teachers and staff in pursuit of desegregative attractiveness was beyond the scope of the court’s remedial authority; and (3) whether students in district are at or below national norms is not appropriate test to determine whether previously segregated district has achieved partially unitary status.
Reversed.
Justices Thomas and O’Connor filed concurring opinions.
Justice Souter dissented and filed an opinion in which Justice Stevens, Justice Ginsburg, and Justice Breyer joined.
Justice Ginsburg filed a dissenting opinion.
**2040 Syllabus*
*70 In this 18–year–old school desegregation litigation, see, e.g., Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31, Missouri challenges the District Court’s orders requiring the State (1) to fund salary increases for virtually all instructional and noninstructional staff within the Kansas City, Missouri, School District (KCMSD), and (2) to continue to fund remedial “quality education” programs because student achievement levels were still “at or below national norms at many grade levels.” In affirming the orders, the Court of Appeals rejected the State’s argument that the salary increases exceeded the District Court’s remedial authority because they did not directly address and relate to the State’s constitutional violation: its operation, prior to 1954, of a segregated school system within the KCMSD. The Court of Appeals observed, inter alia, that the increases were designed to eliminate the vestiges of state-imposed segregation by improving the “desegregative attractiveness” of the district and by reversing “white flight” to the suburbs. The Court of Appeals also approved the District Court’s “implici[t]” rejection of the State’s request for a determination of partial unitary status, under Freeman v. Pitts, 503 U.S. 467, 491, 112 S.Ct. 1430, 1445–1446, 118 L.Ed.2d 108, with respect to the existing quality education programs.
Held:
1. Respondents’ arguments that the State may no longer challenge the District Court’s desegregation remedy and that, in any event, the propriety of the remedy is not before this Court are rejected. Because, in Jenkins, 495 U.S., at 37, 110 S.Ct., at 1655–1656, certiorari was granted to review the manner in which this remedy was funded, but denied as to the State’s

challenge to review the remedial order’s scope, this Court resisted the State’s efforts to challenge such scope and, thus, neither approved nor disapproved the Court of Appeals’ conclusion that the remedy was proper, see, e.g., id., at 53, 110 S.Ct. at 1664. Here, however, the State has challenged the District Court’s approval of across-the-board salary increases as beyond its remedial authority. Because an analysis of the permissible scope of that authority is necessary for a proper determination of whether the *71 salary increases exceed such authority, a challenge to the scope of the remedy is fairly included in the question presented for review. See this Court’s Rule 14.1 and, e.g., Procunier v. Navarette, 434 U.S. 555, 560, n. 6, 98 S.Ct. 855, 859 n. 6, 55 L.Ed.2d 24. Pp. 2046–2048.
2. The challenged orders are beyond the District Court’s remedial authority. Pp. 2048–2056.
(a) Although a District Court necessarily has discretion to fashion a remedy for a school district unconstitutionally segregated in law, such remedial power is not unlimited and may not be extended to purposes beyond the elimination of racial discrimination in public schools. Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 22–23, 91 S.Ct. 1267, 1279–80, 28 L.Ed.2d 554. Proper analysis of the orders challenged here must **2041 rest upon their serving as proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied absent that conduct, see, e.g., Milliken v. Bradley, 418 U.S. 717, 746, 94 S.Ct. 3112, 3128, 41 L.Ed.2d 1069, and their eventual restoration of state and local authorities to the control of a school system that is operating in compliance with the Constitution, see, e.g., Freeman, 503 U.S., at 489, 112 S.Ct., at 1444–1445. The factors that must inform a court’s discretion in ordering complete or partial relief from a desegregation decree are: (1) whether there has been compliance with the decree in those aspects of the school system where federal supervision is to be withdrawn; (2) whether retention of judicial control is necessary or practicable to achieve compliance in other facets of the system; and (3) whether the district has demonstrated to the public and to the parents and students of the once disfavored race its good-faith commitment to the whole of the decree and to those statutes and constitutional provisions that were the predicate for judicial intervention in the first place. Id., at 491, 112 S.Ct., at 1445–46. The ultimate inquiry is whether the constitutional violator has complied in good faith with the decree since it was entered, and whether the vestiges of discrimination have been eliminated to the extent practicable. Id., at 492, 112 S.Ct., at 1446. Pp. 2048–2049.
(b) The order approving salary increases, which was grounded in improving the “desegregative attractiveness” of the KCMSD, exceeds the District Court’s admittedly broad discretion. The order should have sought to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a systemwide reduction in student achievement and the existence of 25 racially identifiable schools with a population of over 90% black students. Instead, the District Court created a magnet district of the KCMSD in order to attract nonminority students from the surrounding suburban school districts and to redistribute them within the KCMSD schools. This interdistrict goal is beyond the scope of the intradistrict violation identified by the District Court. See, e.g., Milliken, supra, at 746–747, 94 S.Ct., at 3128. Indeed, the District *72 Court has found, and the Court of Appeals has affirmed, that the case involved no interdistrict violation that would support interdistrict relief. See, e.g., Jenkins, supra, at 37, n. 3, 110 S.Ct., at 1656 n. 3. The District Court has devised a remedy to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of students. See Milliken, 418 U.S., at 745, 94 S.Ct., at 3127. The record does not support the District Court’s reliance on “white flight” as a justification for a permissible expansion of its intradistrict remedial authority through its pursuit of desegregative attractiveness. See, e.g., id., at 746, 94 S.Ct., at 3128. Moreover, that pursuit cannot be reconciled with this Court’s decisions placing limitations on a district court’s remedial authority. See, e.g., ibid. Nor are there appropriate limits to the duration of the District Court’s involvement. See, e.g., Freeman, supra, at 489, 112 S.Ct., at 1444–1445. Thus, the District Court’s pursuit of the goal of “desegregative attractiveness” results in too many imponderables and is too far removed from the task of eliminating the racial identifiability of the schools within the KCMSD. Pp. 2049–2055.
(c) Similarly, the order requiring the State to continue to fund the quality education programs cannot be sustained. Whether or not KCMSD student achievement levels are still “at or below national norms at many grade levels” clearly is not the appropriate test for deciding whether a previously segregated district has achieved partially unitary status. The District Court should sharply limit, if not dispense with, its reliance on this factor in reconsidering its order, and should instead apply the three-part Freeman test. It should bear in mind that the State’s role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs; that many of the goals of the quality education plan already have been attained; and that its end purpose is not only to remedy the violation to the extent practicable, but also to restore control to state and local authorities. Pp. 2055–2056.
**2042 11 F.3d 755 (CA 1993) (first case) and 13 F.3d 1170 (CA8 1993) (second case), reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which O’CONNOR, SCALIA, KENNEDY, and THOMAS, JJ.,

joined. O’CONNOR, J., post, p. 2056, and THOMAS, J., post, p. 2061, filed concurring opinions. SOUTER, J., filed a dissenting opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined, post, p. 2073. GINSBURG, J., filed a dissenting opinion, post, p. 2091.
Attorneys and Law Firms
John R. Munich, for petitioners.
*73 Theodore M. Shaw, for respondents.
Paul Bender, for the U.S., as amicus curiae by special leave of the Court.
Opinion
Chief Justice REHNQUIST delivered the opinion of the Court.
As this school desegregation litigation enters its 18th year, we are called upon again to review the decisions of the lower courts. In this case, the State of Missouri has challenged the District Court’s order of salary increases for virtually all instructional and noninstructional staff within the Kansas City, Missouri, School District (KCMSD) and the District Court’s order requiring the State to continue to fund remedial “quality education” programs because student achievement levels were still “at or below national norms at many grade levels.”
*74 I
A general overview of this litigation is necessary for proper resolution of the issues upon which we granted certiorari. This case has been before the same United States District Judge since 1977. Missouri v. Jenkins, 491 U.S. 274, 276, 109 S.Ct. 2463, 2465, 105 L.Ed.2d 229 (1989) (Jenkins I). In that year, the KCMSD, the school board, and the children of two school board members brought suit against the State and other defendants. Plaintiffs alleged that the State, the surrounding suburban school districts (SSD’s), and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. The District Court realigned the KCMSD as a nominal defendant and certified as a class, present and future KCMSD students. The KCMSD brought a cross-claim against the State for its failure to eliminate the vestiges of its prior dual school system.
After a trial that lasted 7 ½ months, the District Court dismissed the case against the federal defendants and the SSD’s, but determined that the State and the KCMSD were liable for an intradistrict violation, i.e., they had operated a segregated school system within the KCMSD. Jenkins v. Missouri, 593 F.Supp. 1485 (WD Mo.1984). The District Court determined that prior to 1954 “Missouri mandated segregated schools for black and white children.” Id., at 1490. Furthermore, the KCMSD and the State had failed in their affirmative obligations to eliminate the vestiges of the State’s dual school system within the KCMSD. Id., at 1504.
In June 1985, the District Court issued its first remedial order and established as its goal the “elimination of all vestiges of state imposed segregation.” Jenkins v. Missouri, 639 F.Supp. 19, 23 (WD Mo.1985). The District Court determined that “[s]egregation ha[d] caused a system wide reduction in student achievement in the schools of the KCMSD.” Id., at 24. The District Court made no particularized findings regarding the extent that student achievement *75 had been reduced or what portion of that reduction was attributable to segregation. The District Court also identified 25 schools within the KCMSD that had enrollments of 90% or more black students. Id., at 36.
The District Court, pursuant to plans submitted by the KCMSD and the State, ordered a wide range of quality education programs for all students attending the KCMSD. First, the District Court ordered that the KCMSD be restored to an AAA classification, the highest classification awarded by the State Board of Education. Id., at 26. Second, it ordered that the number of students per class be reduced so that the student-to-teacher ratio was below the **2043 level required for AAA standing. Id., at 28–29. The District Court justified its reduction in class size as
“an essential part of any plan to remedy the vestiges of segregation in the KCMSD. Reducing class size will serve to

remedy the vestiges of past segregation by increasing individual attention and instruction, as well as increasing the potential for desegregative educational experiences for KCMSD students by maintaining and attracting non-minority enrollment.” Id., at 29.
The District Court also ordered programs to expand educational opportunities for all KCMSD students: full-day kindergarten; expanded summer school; before- and after-school tutoring; and an early childhood development program. Id., at 30–33. Finally, the District Court implemented a state-funded “effective schools” program that consisted of substantial yearly cash grants to each of the schools within the KCMSD. Id., at 33–34. Under the “effective schools” program, the State was required to fund programs at both the 25 racially identifiable schools as well as the 43 other schools within the KCMSD. Id., at 33.
The KCMSD was awarded an AAA rating in the 1987–1988 school year, and there is no dispute that since that time it has “ ‘maintained and greatly exceeded AAA requirements.”’ *76 19 F.3d 393, 401 (CA8 1994) (Beam, J., dissenting from denial of rehearing en banc). The total cost for these quality education programs has exceeded $220 million. Missouri Department of Elementary and Secondary Education, KCMSD Total Desegregation Program Expenditures (Sept. 30, 1994) (Desegregation Expenditures).
The District Court also set out to desegregate the KCMSD but believed that “[t]o accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task.” 639 F.Supp., at 38. Because it had found no interdistrict violation, the District Court could not order mandatory interdistrict redistribution of students between the KCMSD and the surrounding SSD’s. Ibid.; see also Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I). The District Court refused to order additional mandatory student reassignments because they would “increase the instability of the KCMSD and reduce the potential for desegregation.” 639 F.Supp., at 38. Relying on favorable precedent from the Eighth Circuit, the District Court determined that “[a]chievement of AAA status, improvement of the quality of education being offered at the KCMSD schools, magnet schools, as well as other components of this desegregation plan can serve to maintain and hopefully attract non-minority student enrollment.” Ibid.
In November 1986, the District Court approved a comprehensive magnet school and capital improvements plan and held the State and the KCMSD jointly and severally liable for its funding. 1 App. 130–193. Under the District Court’s plan, every senior high school, every middle school, and one-half of the elementary schools were converted into magnet schools.1 Id., at 131. The District Court adopted the *77 magnet-school program to “provide a greater educational opportunity to all KCMSD students,” id., at 131–132, and because it believed “that the proposed magnet plan [was] so attractive that it would draw nonminority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs.” Id., at 132. The District Court felt that “[t]he long-term benefit of all KCMSD students of a greater educational opportunity in an integrated environment is worthy of such an investment.” Id., at 133. Since its inception, the magnet-school program has operated at a cost, including magnet transportation, in excess of $448 million. See Desegregation Expenditures. In April 1993, the District Court considered, but ultimately rejected, the plaintiffs’ and the KCMSD’s proposal seeking approval of a **2044 long-range magnet renewal program that included a 10–year budget of well over $500 million, funded by the State and the KCMSD on a joint-and-several basis. App. to Pet. for Cert. A–123.
In June 1985, the District Court ordered substantial capital improvements to combat the deterioration of the KCMSD’s facilities. In formulating its capital-improvements plan, the District Court dismissed as “irrelevant” the “State’s argument that the present condition of the facilities [was] not traceable to unlawful segregation.” 639 F.Supp., at 40. Instead, the District Court focused on its responsibility to “remed[y] the vestiges of segregation” and to “implemen[t] a desegregation plan which w[ould] maintain and attract non-minority enrollment.” Id., at 41. The initial phase of the capital-improvements plan cost $37 million. Ibid. The District Court also required the KCMSD to present further capital-improvements proposals “in order to bring its facilities to a point comparable with the facilities in neighboring suburban school districts.” Ibid. In November 1986, the District Court approved further capital improvements in order to remove the vestiges of racial segregation *78 and “to ... attract non-minority students back to the KCMSD.” App. to Pet. for Cert. A–133 to A–134.
In September 1987, the District Court adopted, for the most part, KCMSD’s long-range capital-improvements plan at a cost in excess of $187 million. Jenkins v. Missouri, 672 F.Supp. 400, 408 (WD Mo.1987). The plan called for the renovation of approximately 55 schools, the closure of 18 facilities, and the construction of 17 new schools. Id., at 405. The District Court rejected what it referred to as the “ ‘patch and repair’ approach proposed by the State” because it “would not achieve suburban comparability or the visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint.” Id., at 404. The District Court reasoned that “if the KCMSD schools underwent the limited renovation proposed by the State, the schools would continue to be unattractive and substandard, and would certainly serve as a deterrent to parents considering enrolling their

children in KCMSD schools.” Id., at 405. As of 1990, the District Court had ordered $260 million in capital improvements. Missouri v. Jenkins, 495 U.S. 33, 61, 110 S.Ct. 1651, 1668, 109 L.Ed.2d 31 (1990) (Jenkins II ) (KENNEDY, J., concurring in part and concurring in judgment). Since then, the total cost of capital improvements ordered has soared to over $540 million.
As part of its desegregation plan, the District Court has ordered salary assistance to the KCMSD. In 1987, the District Court initially ordered salary assistance only for teachers within the KCMSD. Since that time, however, the District Court has ordered salary assistance to all but three of the approximately 5,000 KCMSD employees. The total cost of this component of the desegregation remedy since 1987 is over $200 million. See Desegregation Expenditures.
The District Court’s desegregation plan has been described as the most ambitious and expensive remedial program in the history of school desegregation. 19 F.3d, at 397 *79 Beam, J., dissenting from denial of rehearing en banc). The annual cost per pupil at the KCMSD far exceeds that of the neighboring SSD’s or of any school district in Missouri. Nevertheless, the KCMSD, which has pursued a “friendly adversary” relationship with the plaintiffs, has continued to propose ever more expensive programs.2 As a result, the desegregation costs have escalated and now are approaching an annual cost of $200 million. These massive expenditures have financed
“high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000– square–foot planetarium; green houses and vivariums; a 25–acre farm with an air-conditioned **2045 meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500–square–foot dust-free diesel mechanics room; 1,875–square–foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities.” Jenkins II, 495 U.S., at 77, 110 S.Ct., at 1676–1677 (KENNEDY, J., concurring in part and concurring in judgment). Not surprisingly, the cost of this remedial plan has “far exceeded KCMSD’s budget, or for that matter, its authority to tax.” Id., at 60, 110 S.Ct., at 1668. The State, through the operation of joint-and-several liability, has borne the brunt of these costs. The District Court candidly has acknowledged that it has “allowed the District planners to dream” and “provided the *80 mechanism for th[ose] dreams to be realized.” App. to Pet. for Cert. A–133. In short, the District Court “has gone to great lengths to provide KCMSD with facilities and opportunities not available anywhere else in the country.” Id., at A– 115.
II
With this background, we turn to the present controversy. First, the State has challenged the District Court’s requirement that it fund salary increases for KCMSD instructional and noninstructional staff. Id., at A–76 to A–93 (District Court’s Order of June 15, 1992); id., at A–94 to A–109 (District Court’s Order of June 30, 1993); id., at A–110 to A–121 (District Court’s Order of July 30, 1993). The State claimed that funding for salaries was beyond the scope of the District Court’s remedial authority. Id., at A–86. Second, the State has challenged the District Court’s order requiring it to continue to fund the remedial quality education programs for the 1992–1993 school year. Id., at A–69 to A–75 (District Court’s Order of June 17, 1992). The State contended that under Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), it had achieved partial unitary status with respect to the quality education programs already in place. As a result, the State argued that the District Court should have relieved it of responsibility for funding those programs.
The District Court rejected the State’s arguments. It first determined that the salary increases were warranted because “[h]igh quality personnel are necessary not only to implement specialized desegregation programs intended to ‘improve educational opportunities and reduce racial isolation’, but also to ‘ensure that there is no diminution in the quality of its regular academic program.’ ” App. to Pet. for Cert. A–87 (citations omitted). Its “ruling [was] grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD.” Id., at A–90. The District Court did not address the State’s Freeman arguments; nevertheless, it ordered the State to continue to *81 fund the quality education programs for the 1992–1993 school year. See App. to Pet. for Cert. A–70.
The Court of Appeals for the Eighth Circuit affirmed. 11 F.3d 755 (1993). It rejected the State’s argument that the salary increases did not directly address and relate to the State’s constitutional violation and that “low teacher salaries d[id] not flow from any earlier constitutional violations by the State.” Id., at 767. In doing so, it observed that “[i]n addition to compensating the victims, the remedy in this case was also designed to reverse white flight by offering superior educational

opportunities.” Ibid.; see also 13 F.3d 1170, 1172 (1993) (affirming the District Court’s June 30, 1993, and July 30, 1993, orders).
The Court of Appeals concluded that the District Court implicitly had rejected the State’s Freeman arguments in spite of the fact that it had failed “to articulate ... even a conclusory rejection” of them. 11 F.3d, at 765. It looked to the District Court’s comments from the bench and its later orders to “illuminate the June 1992 order.” Id., at 761. The Court of Appeals relied on statements made by the District Court during a May 28, 1992, hearing:
“The Court’s goal was to integrate the Kansas City, Missouri, School District to the maximum degree possible, and all **2046 these other matters were elements to be used to try to integrate the Kansas City, Missouri, schools so the goal is integration. That’s the goal. And a high standard of quality education. The magnet schools, the summer school program and all these programs are tied to that goal, and until such time as that goal has been reached, then we have not reached the goal.... The goal is to integrate the Kansas City, Missouri, School district. So I think we are wasting our time.” 2 App. 482 (emphasis added).
See 11 F.3d, at 761. Apparently, the Court of Appeals extrapolated from the findings regarding the magnet-school *82 program and later orders and imported those findings wholesale to reject the State’s request for a determination of partial unitary status as to the quality education programs. See id., at 761–762. It found significant the District Court’s determination that although “there had been a trend of improvement in academic achievement, ... the school district was far from reaching its maximum potential because KCMSD is still at or below national norms at many grade levels.” Ibid. It went on to say that with respect to quality education, “implementation of programs in and of itself is not sufficient. The test, after all, is whether the vestiges of segregation, here the systemwide reduction in student achievement, have been eliminated to the greatest extent practicable. The success of quality of education programs must be measured by their effect on the students, particularly those who have been the victims of segregation.” Id., at 766.
The Court of Appeals denied rehearing en banc, with five judges dissenting. 19 F.3d, at 395. The dissent first examined the salary increases ordered by the District Court and characterized “the current effort by the KCMSD and the American Federation of Teachers ... aided by the plaintiffs, to bypass the collective bargaining process” as “uncalled for” and “probably not an exercise reasonably related to the constitutional violations found by the court.” Id., at 399. The dissent also “agree[d] with the [S]tate that logic d[id] not directly relate the pay of parking lot attendants, trash haulers and food handlers ... to any facet or phase of the desegregation plan or to the constitutional violations.” Ibid.
Second, the dissent believed that in evaluating whether the KCMSD had achieved partial unitary status in its quality education programs, the District Court and the panel had
“misrea[d] Freeman and create[d] a hurdle to the withdrawal of judicial intervention from public education that has no support in the law. The district court has, *83 with the approbation of the panel, imbedded a student achievement goal measured by annual standardized tests into its test of whether the KCMSD has built a high-quality educational system sufficient to remedy past discrimination. The Constitution requires no such standard.” Id., at 400.
The dissent noted that “KCMSD students have in place a system that offers more educational opportunity than anywhere in America,” id., at 403, but that the District Court was “ ‘not satisfied that the District has reached anywhere close to its maximum potential because the District is still at or below national norms at many grade levels,’ ” ibid. (emphasis added). The dissent concluded that this case, “as it now proceeds, involves an exercise in pedagogical sociology, not constitutional adjudication.” Id., at 404.
Because of the importance of the issues, we granted certiorari to consider the following: (1) whether the District Court exceeded its constitutional authority when it granted salary increases to virtually all instructional and noninstructional employees of the KCMSD, and (2) whether the District Court properly relied upon the fact that student achievement test scores had failed to rise to some unspecified level when it declined to find that the State had achieved partial unitary status as to the quality education programs. 512 U.S. 1287, 115 S.Ct. 41, 129 L.Ed.2d 936 (1994).
III
[1] Respondents argue that the State may no longer challenge the District Court’s remedy, and in any event, the propriety of the remedy is not before the Court. Brief **2047 for Respondents KCMSD et al. 40–49; Brief for Respondents Jenkins et al.

23. We disagree on both counts. In Jenkins II, we granted certiorari to review the manner in which the District Court had funded this desegregation remedy. 495 U.S., at 37, 110 S.Ct., at 1655–56. Because we had denied certiorari on the State’s *84 challenge to review the scope of the remedial order, we resisted the State’s efforts to challenge the scope of the remedy. Id., at 53, 110 S.Ct., at 1664; cf. id., at 80, 110 S.Ct., at 1678 (KENNEDY, J., concurring in part and concurring in judgment). Thus, we neither “approv[ed]” nor “disapprov[ed] the Court of Appeals’ conclusion that the District Court’s remedy was proper.” Id., at 53, 110 S.Ct., at 1664.
[2] Here, however, the State has challenged the District Court’s approval of across-the-board salary increases for instructional and noninstructional employees as an action beyond its remedial authority. Pet. for Cert. i.3 An analysis of the permissible scope of the District Court’s remedial authority is necessary for a proper determination of whether the order of salary increases is beyond the District Court’s remedial authority, see Milliken I, 418 U.S., at 738–740, 745, 94 S.Ct., at 3124–3125, 3127–3128, and thus, it is an issue subsidiary to our ultimate inquiry. Cf. Yee v. Escondido, 503 U.S. 519, 537, 112 S.Ct. 1522, 1533–1534, 118 L.Ed.2d 153 (1992). Given that the District Court’s basis for its salary order was grounded in “improving the desegregative attractiveness of the KCMSD,” App. to Pet. for Cert. A–90, we must consider the propriety of that reliance in order to resolve properly the State’s challenge to that order. We conclude that a challenge to the scope of the District Court’s remedy is fairly included in the question presented. See this Court’s Rule 14.1; Procunier v. Navarette, 434 U.S. 555, 560, n. 6, 98 S.Ct. 855, 859, n. 6, 55 L.Ed.2d 24 (1978) (“Since consideration of these issues is essential to analysis of the Court of Appeals’ [decision] we shall also treat these questions as subsidiary issues ‘fairly comprised’ by the question presented”); see also United States v. Mendenhall, 446 U.S. 544, 551–552, n. 5, 100 S.Ct. 1870, 1875–1876, n. 5, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (Where *85 the determination of a question “is essential to the correct disposition of the other issues in the case, we shall treat it as ‘fairly comprised’ by the questions presented in the petition for certiorari”); cf. Yee, supra, 503 U.S., at 536–537, 112 S.Ct., at 1533–1534.
Justice SOUTER argues that our decision to review the scope of the District Court’s remedial authority is both unfair and imprudent. Post, at 2077. He claims that factors such as our failure to grant certiorari on the State’s challenge to the District Court’s remedial authority in 1988 “lulled [respondents] into addressing the case without sufficient attention to the foundational issue, and their lack of attention has now infected the Court’s decision.” Post, at 2074. Justice SOUTER concludes that we have “decide[d] the issue without any warning to respondents.” Post, at 2077. These arguments are incorrect.
Of course, “[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923). A fortiori, far from lulling respondents into a false sense of security, our previous decision in Jenkins v. Missouri put respondents on notice that the Court had not affirmed the validity of the District Court’s remedy, 495 U.S., at 53, 110 S.Ct., at 1664, and that at least four Justices of the Court questioned that remedy, id., at 75–80, 110 S.Ct., at 1675–1678 (KENNEDY, J., concurring in part and concurring in judgment).
With respect to the specific orders at issue here, the State has once again challenged the scope of the District Court’s remedial authority. The District Court was aware of this fact. See App. to Pet. for Cert. A–86 (“The State claims that the Court should not approve **2048 desegregation funding for salaries because such funding would be beyond the scope of the Court’s remedial authority”) (District Court’s June 25, 1992, order); id., at A–97 (“The State has argued repeatedly and currently on appeal that the salary component is not a valid component of the desegregation remedy”) (District *86 Court’s June 30, 1993, order). The Court of Appeals also understood that the State had renewed this challenge. See 11 F.3d, at 766 (“The State argues first that the salary increase remedy sought exceeded that necessary to remedy the constitutional violations, and alternatively, that if the district court had lawful authority to impose the increases, it abused its discretion in doing so”); id., at 767 (“The State’s legal argument is that the district court should have denied the salary increase funding because it is contrary to Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977), and Swann [v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971),] in that it does not directly address and relate to the State’s constitutional violation”); 13 F.3d, at 1172 (“We reject the State’s argument that the salary order is contrary to Milliken II and Swann ”). The State renewed this same challenge in its petition for certiorari, Pet. for Cert. i, and argued here that the District Court’s salary orders were beyond the scope of its remedial authority. Brief for Petitioners 27–32; Reply Brief for Petitioners 6–12. In the 100 pages of briefing provided by respondents, they have argued that the State’s challenge to the scope of the District Court’s remedial authority is not fairly presented and is meritless. See Brief for Respondents KCMSD et al. 40–49; Brief for Respondents Jenkins et al. 2–21, 44–49; cf. Reply Brief for Petitioners 2 (“[R]espondents ... urge the Court to dismiss the writ as improvidently granted. This is not surprising; respondents cannot defend the excesses of the courts below”).
In short, the State has challenged the scope of the District Court’s remedial authority. The District Court, the Court of

Appeals, and respondents have recognized this to be the case. Contrary to Justice SOUTER’s arguments, there is no unfairness or imprudence in deciding issues that have been passed upon below, are properly before us, and have been briefed by the parties. We turn to the questions presented.
Almost 25 years ago, in Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), we dealt with the authority of a district court to fashion remedies for a school district that *87 had been segregated in law in violation of the Equal Protection Clause of the Fourteenth Amendment. Although recognizing the discretion that must necessarily adhere in a district court in fashioning a remedy, we also recognized the limits on such remedial power:
“[E]limination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of the school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown [v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed.2d 873 (1954),] to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination.” Id., at 22–23, 91 S.Ct., at 1279.
Three years later, in Milliken I, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), we held that a District Court had exceeded its authority in fashioning interdistrict relief where the surrounding school districts had not themselves been guilty of any constitutional violation. Id., 418 U.S., at 746–747, 94 S.Ct., at 3128. We said that a desegregation remedy “is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Id., at 746, 94 S.Ct., at 3128. “[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.” Id., at 745, 94 S.Ct., at 3127. We also rejected “[t]he suggestion ... that schools which have a majority of Negro students are not ‘desegregated,’ whatever the makeup of the school district’s population and however neutrally the district lines have been drawn and administered.” Id., at 747, n. 22, 94 S.Ct., at 3128, n. 22; see also Freeman, 503 U.S., at 474, 112 S.Ct., at 1437 (“[A] critical beginning point is the degree of racial imbalance in the school district, that is to say a comparison of the proportion of majority to minority students in individual **2049 schools with the proportions of the races in the district as a whole”).
*88 Three years later, in Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II), we articulated a three-part framework derived from our prior cases to guide district courts in the exercise of their remedial authority.
“In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte–Mecklenburg Board of Education, 402 U.S., at 16 [91 S.Ct., at 1276]. The remedy must therefore be related to ‘the condition alleged to offend the Constitution....’ Milliken I, 418 U.S., at 738 [94 S.Ct., at 3124]. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.’ Id., at 746 [94 S.Ct., at 3128]. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Id., at 280–281, 97 S.Ct., at 2757 (footnotes omitted).
We added that the “principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and relate to the constitutional violation itself.” Id., at 281–282, 97 S.Ct., at 2758. In applying these principles, we have identified “student assignments, ... ‘faculty, staff, transportation, extracurricular activities and facilities’ ” as the most important indicia of a racially segregated school system. Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991) (quoting Green v. School Bd. of New Kent Cty., 391 U.S. 430, 435, 88 S.Ct. 1689, 1693, 20 L.Ed.2d 716 (1968)).
Because “federal supervision of local school systems was intended as a temporary measure to remedy past discrimination,” Dowell, supra, at 247, 111 S.Ct., at 637, we also have considered the showing that must be made by a school district operating under a desegregation order for complete or partial relief from that order. In Freeman, we stated that
*89 “[a]mong the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the courts’ decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.” 503 U.S., at 491, 112 S.Ct., at 1446.
The ultimate inquiry is “ ‘whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.’ ” Id., at

492, 112 S.Ct., at 1446 (quoting Dowell, supra, 498 U.S., at 249–250, 111 S.Ct., at 638).
[3] Proper analysis of the District Court’s orders challenged here, then, must rest upon their serving as proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct and their eventual restoration of “state and local authorities to the control of a school system that is operating in compliance with the Constitution.” 503 U.S., at 489, 112 S.Ct., at 1444. We turn to that analysis.
[4] [5] The State argues that the order approving salary increases is beyond the District Court’s authority because it was crafted to serve an “interdistrict goal,” in spite of the fact that the constitutional violation in this case is “intradistrict” in nature. Brief for Petitioners 19. “[T]he nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation.” **2050 Milliken II, supra, 433 U.S., at 280, 97 S.Ct., at 2757; Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424, 434, 96 S.Ct. 2697, 2704, 49 L.Ed.2d 599 (1976) (“ ‘[T]here are limits’ beyond which a *90 court may not go in seeking to dismantle a dual school system”). The proper response to an intradistrict violation is an intradistrict remedy, see Milliken I, supra, 418 U.S., at 746–747, 94 S.Ct., at 3128; Milliken II, supra, 433 U.S., at 280, 97 S.Ct., at 2757, that serves to eliminate the racial identity of the schools within the affected school district by eliminating, as far as practicable, the vestiges of de jure segregation in all facets of their operations. See Dowell, supra, 498 U.S., at 250, 111 S.Ct., at 638; see also Swann, 402 U.S., at 18–19, 91 S.Ct., at 1277–1278; Green, supra, 391 U.S., at 435, 88 S.Ct., at 1692–1693.
Here, the District Court has found, and the Court of Appeals has affirmed, that this case involved no interdistrict constitutional violation that would support interdistrict relief. Jenkins II, 495 U.S., at 37, n. 3, 110 S.Ct., at 1656, n. 3 (“The District Court also found that none of the alleged discriminatory actions had resulted in lingering interdistrict effects and so dismissed the suburban school districts and denied interdistrict relief”); id., at 76, 110 S.Ct., at 1676 (KENNEDY, J., concurring in part and concurring in judgment) (“[T]here was no interdistrict constitutional violation that would support mandatory interdistrict relief”).4 Thus, the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a systemwide reduction in student achievement and the existence of 25 racially identifiable schools with a population of over 90% black students. 639 F.Supp., at 24, 36.
*91 The District Court and Court of Appeals, however, have felt that because the KCMSD’s enrollment remained 68.3% black, a purely intradistrict remedy would be insufficient. Id., 495 U.S., at 38, 110 S.Ct., at 1656; Jenkins v. Missouri, 855 F. 2d 1295, 1302 (CA8 1988) (“[V]oluntary interdistrict remedies may be used to make meaningful integration possible in a predominantly minority district”). But, as noted in Milliken I, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), we have rejected the suggestion “that schools which have a majority of Negro students are not ‘desegregated’ whatever the racial makeup of the school district’s population and however neutrally the district lines have been drawn and administered.” Id., 418 U.S., at 747, n. 22, 94 S.Ct., at 3128, n. 22; see Milliken II, 433 U.S., at 280, n. 14, 97 S.Ct., at 2757, n. 14 (“[T]he Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more”); Spangler, supra, 427 U.S., at 434, 96 S.Ct., at 2703–2704.5
Instead of seeking to remove the racial identity of the various schools within the KCMSD, the District Court has set out on a program to create a school district that was equal to or superior to the surrounding SSD’s. Its remedy has focused on “desegregative attractiveness,” coupled with “suburban comparability.” Examination of the District Court’s reliance on “desegregative attractiveness” and “suburban comparability” **2051 is instructive for our ultimate resolution of the salaryorder issue.
The purpose of desegregative attractiveness has been not only to remedy the systemwide reduction in student achievement, but also to attract nonminority students not presently enrolled in the KCMSD. This remedy has included an elaborate program of capital improvements, course enrichment, *92 and extracurricular enhancement not simply in the formerly identifiable black schools, but in schools throughout the district. The District Court’s remedial orders have converted every senior high school, every middle school, and one-half of the elementary schools in the KCMSD into “magnet” schools. The District Court’s remedial order has all but made the KCMSD itself into a magnet district.
We previously have approved of intradistrict desegregation remedies involving magnet schools. See, e.g., Milliken II, supra, 433 U.S., at 272, 97 S.Ct., at 2753. Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis, without requiring extensive busing and redrawing of district boundary lines. Cf. Jenkins II, supra, 495 U.S., at 59–60, 110 S.Ct., at 1667–1668 (KENNEDY, J., concurring in part and concurring in judgment) (citing Milliken II, supra, 433 U.S., at 272, 97 S.Ct., at 2753). As a component in an intradistrict remedy, magnet schools also are attractive because they promote desegregation while limiting

the withdrawal of white student enrollment that may result from mandatory student reassignment. See 639 F.Supp., at 37; cf. United States v. Scotland Neck City Bd. of Ed., 407 U.S. 484, 491, 92 S.Ct. 2214, 2218, 33 L.Ed.2d 75 (1972).
The District Court’s remedial plan in this case, however, is not designed solely to redistribute the students within the KCMSD in order to eliminate racially identifiable schools within the KCMSD. Instead, its purpose is to attract nonminority students from outside the KCMSD schools. But this inter district goal is beyond the scope of the intradistrict violation identified by the District Court. In effect, the District Court has devised a remedy to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of students. 639 F.Supp., at 38 (“ ‘[B]ecause of restrictions on this Court’s remedial powers in restructuring the operations of local and state government entities,’ any mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond *93 the nature and extent of the constitutional violation [that] this Court found existed”).
In Milliken I we determined that a desegregation remedy that would require mandatory interdistrict reassignment of students throughout the Detroit metropolitan area was an impermissible interdistrict response to the intradistrict violation identified. 418 U.S., at 745, 94 S.Ct., at 3127–3128. In that case, the lower courts had ordered an interdistrict remedy because “ ‘any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.’ ” Id., at 735, 94 S.Ct., at 3122. We held that before a district court could order an interdistrict remedy, there must be a showing that “racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation.” Id., at 745, 94 S.Ct., at 3127. Because the record “contain[ed] evidence of de jure segregated conditions only in the Detroit Schools” and there had been “no showing of significant violation by the 53 outlying school districts and no evidence of interdistrict violation or effect,” we reversed the District Court’s grant of interdistrict relief. Ibid.
Justice Stewart provided the Court’s fifth vote and wrote separately to underscore his understanding of the decision. In describing the requirements for imposing an “interdistrict” remedy, Justice Stewart stated: “Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines; by transfer of school units between districts; or by purposeful, racially discriminatory use of state housing or zoning laws, **2052 then a decree calling for the transfer of pupils across district lines or for restructuring of district lines might well be appropriate. In this case, however, no such interdistrict violation was shown.” Id., at 755, 94 S.Ct., at 3132 (concurring opinion) (citations omitted). Justice Stewart concluded that the Court *94 properly rejected the District Court’s interdistrict remedy because “[t]here were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort.” Id., at 757, 94 S.Ct., at 3133.
[6] [7] What we meant in Milliken I by an interdistrict violation was a violation that caused segregation between adjoining districts. Nothing in Milliken I suggests that the District Court in that case could have circumvented the limits on its remedial authority by requiring the State of Michigan, a constitutional violator, to implement a magnet program designed to achieve the same interdistrict transfer of students that we held was beyond its remedial authority. Here, the District Court has done just that: created a magnet district of the KCMSD in order to serve the interdistrict goal of attracting nonminority students from the surrounding SSD’s and redistributing them within the KCMSD. The District Court’s pursuit of “desegregative attractiveness” is beyond the scope of its broad remedial authority. See Milliken II, 433 U.S., at 280, 97 S.Ct., at 2757.
Respondents argue that the District Court’s reliance upon desegregative attractiveness is justified in light of the District Court’s statement that segregation has “led to white flight from the KCMSD to suburban districts.” 1 App. 126; see Brief for Respondents KCMSD et al. 44–45, and n. 28; Brief for Respondents Jenkins et al. 47–49.6 The lower *95 courts’ “findings” as to “white flight” are both inconsistent internally,7 and inconsistent with the typical supposition, bolstered here by the record evidence, that “white flight” may result from desegregation, not de jure segregation.8 The United States, as amicus curiae, argues that the District Court’s finding that “de jure segregation in the KCMSD caused white students to leave the system ... is not inconsistent with the district court’s earlier conclusion that the suburban districts did nothing to cause this white flight and therefore could not be included in a mandatory interdistrict remedy.” Brief for United States as Amicus Curiae 19, n. 2; see also post, at 2083–2085. But the District Court’s earlier findings, affirmed by the Court of Appeals, were not so limited:
“[C]ontrary to the argument of [plaintiffs] that the [district court] looked only to the culpability of the SSDs, the scope of the order is far broader.... It noted that only the schools in one district were affected and that the remedy must be limited to **2053 that system. In examining the cause and effect issue, the court noted that ‘not only is plaintiff’s evidence here

blurred as to cause and *96 effect, there is no “careful delineation of the extent of the effect.” ’ ... The district court thus dealt not only with the issue whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effects.... “When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met.” Jenkins v. Missouri, 807 F.2d 657, 672 (CA8 1986) (affirming, by an equally divided court, the District Court’s findings and conclusion that there was no interdistrict violation or interdistrict effect) (en banc).9 [8] In Freeman, we stated that “[t]he vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied.” 503 U.S., at 496, 112 S.Ct., at 1448. The record here does not support the District Court’s reliance on “white flight” as a justification for a permissible expansion of its intradistrict remedial authority through its pursuit of desegregative attractiveness. See Milliken I, 418 U.S., at 746, 94 S.Ct., at 3128; see also Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 417, 97 S.Ct. 2766, 2774, 53 L.Ed.2d 851 (1977) (Dayton I ).
Justice SOUTER claims that our holding effectively overrules Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). See also Brief for American Civil Liberties Union et al. as Amici Curiae 18–20. In Gautreaux, the Federal Department of *97 Housing and Urban Development (HUD) was found to have participated, along with a local housing agency, in establishing and maintaining a racially segregated public housing program. 425 U.S., at 286–291, 96 S.Ct., at 1541–1543. After the Court of Appeals ordered “ ‘the adoption of a comprehensive metropolitan area plan,’ ” id., at 291, 96 S.Ct., at 1543, we granted certiorari to consider the “permissibility in light of [Milliken I] of ‘inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation.’ ” Gautreaux, supra, at 292, 96 S.Ct., at 1544. Because the “relevant geographic area for purposes of the [plaintiffs’] housing options [was] the Chicago housing market, not the Chicago city limits,” 425 U.S., at 299, 96 S.Ct., at 1547, we concluded that “a metropolitan area remedy ... [was] not impermissible as a matter of law,” id., at 306, 96 S.Ct., at 1550. Cf. id., at 298, n. 13, 96 S.Ct., at 1546– 1547, n. 13 (distinguishing Milliken I, in part, because prior cases had established that racial segregation in schools is “to be dealt with in terms of ‘an established geographic and administrative school system’ ”).
In Gautreaux, we did not obligate the District Court to “subjec[t] HUD to measures going beyond the geographical or political boundaries of its violation.” Post, at 2089. Instead, we cautioned that our holding “should not be interpreted as requiring a metropolitan area order.” Gautreaux, 425 U.S., at 306, 96 S.Ct., at 1550. We reversed appellate factfinding by the Court of Appeals that would have mandated a metropolitan-area remedy, see id., at 294–295, n. 11, 96 S.Ct., at 1551, n. 11, and remanded the case back to the District Court “ ‘for additional evidence and for further consideration of the issue of metropolitan area relief,’ ” id., at 306, 96 S.Ct., at 1550.
Our decision today is fully consistent with Gautreaux. A district court seeking to remedy an intradistrict violation that has not “directly caused” significant interdistrict effects, Milliken I, supra, 418 U.S., at 744–745, 94 S.Ct., at 3126–3128, exceeds its remedial **2054 authority if it orders a remedy with an interdistrict purpose. This conclusion follows directly from Milliken II, decided one year after Gautreaux, where we reaffirmed the bedrock *98 principle that “federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.” 433 U.S., at 282, 97 S.Ct., at 2758. In Milliken II, we also emphasized that “federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Id., at 280–281, 97 S.Ct., at 2757. Gautreaux, however, involved the imposition of a remedy upon a federal agency. See 425 U.S., at 292, n. 9, 96 S.Ct., at 1544, n. 9. Thus, it did not raise the same federalism concerns that are implicated when a federal court issues a remedial order against a State. See Milliken II, supra, 433 U.S., at 280–281, 97 S.Ct., at 2757–2758.
The District Court’s pursuit of “desegregative attractiveness” cannot be reconciled with our cases placing limitations on a district court’s remedial authority. It is certainly theoretically possible that the greater the expenditure per pupil within the KCMSD, the more likely it is that some unknowable number of nonminority students not presently attending schools in the KCMSD will choose to enroll in those schools. Under this reasoning, however, every increased expenditure, whether it be for teachers, noninstructional employees, books, or buildings, will make the KCMSD in some way more attractive, and thereby perhaps induce nonminority students to enroll in its schools. But this rationale is not susceptible to any objective limitation. Cf. Milliken II, supra, at 280, 97 S.Ct., at 2757 (remedial decree “must be designed as nearly as possible ‘to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct’ ”). This case provides numerous examples demonstrating the limitless authority of the District Court operating under this rationale. See, e.g., App. to Pet. for Cert. A–115 (The District Court has recognized that it has “provide[d] the KCMSD with facilities and opportunities not available anywhere else in the country”); id., at A–140 (“The District has repeatedly requested that the [District Court] provide extravagant *99 programs based on the hopes that they will succeed in the desegregation effort”). In

short, desegregative attractiveness has been used “as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD.” Jenkins II, 495 U.S., at 76, 110 S.Ct., at 1676 (KENNEDY, J., concurring in part and concurring in judgment).
[9] Nor are there limits to the duration of the District Court’s involvement. The expenditures per pupil in the KCMSD currently far exceed those in the neighboring SSD’s. 19 F.3d, at 399 (Beam, J., dissenting from denial of rehearing en banc) (per-pupil costs within the SSD’s, excluding capital costs, range from $2,854 to $5,956; per-pupil costs within the KCMSD, excluding capital costs, are $9,412); Brief for Respondent KCMSD et al. 18, n. 5 (arguing that per-pupil costs in the KCMSD, excluding capital costs, are $7,665.18). Sixteen years after this litigation began, the District Court recognized that the KCMSD has yet to offer a viable method of financing the “wonderful school system being built.” App. to Pet. for Cert. A–124; cf. Milliken II, supra, 433 U.S., at 293, 97 S.Ct., at 2763 (Powell, J., concurring in judgment) (“Th[e] parties ... have now joined forces apparently for the purpose of extracting funds from the state treasury”). Each additional program ordered by the District Court—and financed by the State—to increase the “desegregative attractiveness” of the school district makes the KCMSD more and more dependent on additional funding from the State; in turn, the greater the KCMSD’s dependence on state funding, the greater its reliance on continued supervision by the District Court. But our cases recognize that local autonomy of school districts is a vital national tradition, Dayton I, 433 U.S., at 410, 97 S.Ct., at 2770, and that a district court must strive to restore state and local authorities to the control of a school system operating in compliance with the Constitution. See Freeman, 503 U.S., at 489, 112 S.Ct., at 1445; Dowell, 498 U.S., at 247, 111 S.Ct., at 636–637.
**2055 [10] *100 The District Court’s pursuit of the goal of “desegregative attractiveness” results in so many imponderables and is so far removed from the task of eliminating the racial identifiability of the schools within the KCMSD that we believe it is beyond the admittedly broad discretion of the District Court. In this posture, we conclude that the District Court’s order of salary increases, which was “grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD,” App. to Pet. for Cert. A–90, is simply too far removed from an acceptable implementation of a permissible means to remedy previous legally mandated segregation. See Milliken II, 433 U.S., at 280, 97 S.Ct., at 2757.
[11] Similar considerations lead us to conclude that the District Court’s order requiring the State to continue to fund the quality education programs because student achievement levels were still “at or below national norms at many grade levels” cannot be sustained. The State does not seek from this Court a declaration of partial unitary status with respect to the quality education programs. Reply Brief for Petitioners 3. It challenges the requirement of indefinite funding of a quality education program until national norms are met, based on the assumption that while a mandate for significant educational improvement, both in teaching and in facilities, may have been justified originally, its indefinite extension is not.
Our review in this respect is needlessly complicated because the District Court made no findings in its order approving continued funding of the quality education programs. See App. to Pet. for Cert. A–69 to A–75. Although the Court of Appeals later recognized that a determination of partial unitary status requires “careful factfinding and detailed articulation of findings,” 11 F.3d, at 765, it declined to remand to the District Court. Instead it attempted to assemble an adequate record from the District Court’s statements *101 from the bench and subsequent orders. Id., at 761. In one such order relied upon by the Court of Appeals, the District Court stated that the KCMSD had not reached anywhere close to its “maximum potential because the District is still at or below national norms at many grade levels.” App. to Pet. for Cert. A–131.
[12] [13] [14] But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status. See Freeman, supra, 503 U.S., at 491, 112 S.Ct., at 1445–1446; Dowell, 498 U.S., at 249– 250, 111 S.Ct., at 637–638. The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable. Under our precedents, the State and the KCMSD are “entitled to a rather precise statement of [their] obligations under a desegregation decree.” Id., at 246, 111 S.Ct., at 636. Although the District Court has determined that “[s]egregation has caused a system wide reduction in achievement in the schools of the KCMSD,” 639 F.Supp., at 24, it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs. Cf. Dayton I, supra, 433 U.S., at 420, 97 S.Ct., at 2775–2776.10
[15] In reconsidering this order, the District Court should apply our three-part test from Freeman v. Pitts, supra, 503 U.S., at 491, 112 S.Ct., at 1445–1446. The District Court should consider that the State’s role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs. As all the parties agree that improved achievement on test scores is not necessarily required for the State to achieve partial unitary status as to the quality education

programs, the District Court should sharply limit, if not dispense with, its reliance on this factor. Brief for Respondents *102 KCMSD et al. 34–35; Brief for Respondents Jenkins et al. 26. Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, Freeman, 503 U.S., at 494–495, 112 S.Ct., at 1447– 1448, **2056 so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus. See Spangler, 427 U.S., at 434, 96 S.Ct., at 2703–2704; Swann, 402 U.S., at 22, 91 S.Ct., at 1279. Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own.
[16] The District Court also should consider that many goals of its quality education plan already have been attained: the KCMSD now is equipped with “facilities and opportunities not available anywhere else in the country.” App. to Pet. for Cert. A–115. KCMSD schools received an AAA rating eight years ago, and the present remedial programs have been in place for seven years. See 19 F.3d, at 401 (Beam, J., dissenting from denial of rehearing en banc). It may be that in education, just as it may be in economics, a “rising tide lifts all boats,” but the remedial quality education program should be tailored to remedy the injuries suffered by the victims of prior de jure segregation. See Milliken II, supra, 433 U.S., at 287, 97 S.Ct., at 2760– 2761. Minority students in kindergarten through grade 7 in the KCMSD always have attended AAA-rated schools; minority students in the KCMSD that previously attended schools rated below AAA have since received remedial education programs for a period of up to seven years.
On remand, the District Court must bear in mind that its end purpose is not only “to remedy the violation” to the extent practicable, but also “to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman, supra, 503 U.S., at 489, 112 S.Ct., at 1445.
*103 The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice O’CONNOR, concurring.
Because “[t]he mere fact that one question must be answered before another does not insulate the former from Rule 14.1(a),” Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 404, 115 S.Ct. 961, 977, 130 L.Ed.2d 902 (1995) (O’CONNOR, J., dissenting), I reject the State’s contention that the propriety of the District Court’s remedy is fairly included in the question whether student achievement is a valid measure of partial unitary status as to the quality education program, Brief for Petitioners 18.
The State, however, also challenges the District Court’s order setting salaries for all but 3 of the 5,000 persons employed by the Kansas City, Missouri, School District (KCMSD). In that order, the court stated: “[T]he basis for this Court’s ruling is grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD. In order to improve the desegregative attractiveness of the KCMSD, the District must hire and retain high quality teachers, administrators and staff.” App. to Pet. for Cert. A–90. The question presented in the petition for certiorari asks whether the order comports with our cases requiring that remedies “address and relate to the constitutional violation and be tailored to cure the condition that offends the Constitution,” Pet. for Cert. i. Thus, the State asks not only whether salary increases are an appropriate means to achieve the District Court’s goal of desegregative attractiveness, but also whether that goal itself legitimately relates to the predicate constitutional violation. The propriety of desegregative attractiveness as a remedial purpose, therefore, is not simply an issue “prior to the clearly presented question,” Lebron, supra, at 382, 115 S.Ct., at 966; it is an issue presented in the question itself and, as such, is one that *104 we appropriately and necessarily consider in answering that question.
Beyond the plain words of the question presented, the State’s opening brief placed respondents on notice of its argument; fully 25 of the State’s 30 pages of discussion were devoted to desegregative attractiveness and suburban comparability. See Brief for Petitioners 19–45. Such focus should not come as a surprise. At every stage of this litigation, as the Court notes, ante, at 2074, the **2057 State has questioned whether the salary increase order exceeded the nature and scope of the constitutional violation. In disposing of the argument, the lower courts explicitly relied on the need for desegregative attractiveness and suburban comparability. See, e.g., 13 F.3d, 1170, 1172 (CA8 1993) (“The significant finding of the court

with respect to the earlier funding order was that the salary increases were essential to comply with the court’s desegregation orders, and that high quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD”); 11 F.3d 755, 767 (CA8 1993) (“In addition to compensating the victims, the remedy in this case was also designed to reverse white flight by offering superior educational opportunities”).
Given the State’s persistence and the specificity of the lower court decisions, respondents would have ignored the State’s arguments on white flight and desegregative attractiveness at their own peril. But they did not do so, and instead engaged those arguments on the merits. See Brief for Respondents KCMSD et al. 44–49; Brief for Respondents Jenkins et al. 41–49. Perhaps the response was not made as artfully and completely as the dissenting Justices would like, but it was made nevertheless; whatever the cause of respondents’ supposed failure to appreciate “what was really at stake,” post, at 2074 (SOUTER, J., dissenting), it is certainly not lack of fair notice.
Given such notice, there is no unfairness to the Court resolving the issue. Unlike Bray v. Alexandria Women’s *105 Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), for example, where in order to decide a particular question, one would have had to “find in the complaint claims that the respondents themselves have admitted are not there; ... resolve a question not presented to, or ruled on by, any lower court; ... revise the rule that it is the petition for certiorari (not the brief in opposition and later briefs) that determines the questions presented; and ... penalize the parties for not addressing an issue on which the Court specifically denied supplemental briefing,” id., at 280–281, 113 S.Ct., at 765, in this case one need only read the opinions below to see that the question of desegregative attractiveness was presented to and passed upon by the lower courts; the petition for certiorari to see that it was properly presented; and the briefs to see that it was fully argued on the merits. If it could be thought that deciding the question in Bray presented no “unfairness” because it “was briefed, albeit sparingly, by the parties prior to the first oral argument,” id., at 291, 113 S.Ct., at 770 (SOUTER, J., concurring in judgment in part and dissenting in part), there should hardly be cause to cry foul here. The Court today transgresses no bounds of orderly adjudication in resolving a genuine dispute that is properly presented for its decision.
On the merits, the Court’s resolution of the dispute comports with Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed. 2d 792 (1976). There, we held that there is no “per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred,” id., at 298, 96 S.Ct., at 1546. This holding follows from our judgment in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ), that an interdistrict remedy is permissible, but only upon a showing that “there has been a constitutional violation within one district that produces a significant segregative effect in another district,” id., at 745, 94 S.Ct., at 3127. The per se rule that the petitioner urged upon the Court in Gautreaux would have erected an “arbitrary and mechanical” shield at the city limits, *106 425 U.S., at 300, 96 S.Ct., at 1547, and contradicted the holding in Milliken I that remedies may go beyond the boundaries of the constitutional violator. Gautreaux, however, does not eliminate the requirement of Milliken I that such territorial transgression is permissible only upon a showing that the intradistrict constitutional violation produced significant interdistrict segregative effects; if anything, our opinion repeatedly affirmed that principle, see Gautreaux, supra, 425 U.S., at 292–294, 296, n. 12, 96 S.Ct., at 1543–1545, n. 12. More important for our purposes here, Gautreaux in no way contravenes **2058 the underlying principle that the scope of desegregation remedies, even those that are solely intradistrict, is “determined by the nature and extent of the constitutional violation.” Milliken I, supra, 418 U.S., at 744, 94 S.Ct., at 3127 (citing Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971)). Gautreaux simply does not give federal courts a blank check to impose unlimited remedies upon a constitutional violator.
As an initial matter, Gautreaux itself may not even have concerned a case of interdistrict relief, at least not in the sense that Milliken I and other school desegregation cases have understood it. Our opinion made clear that the authority of the Department of Housing and Urban Development (HUD) extends beyond the Chicago city limits, see Gautreaux, 425 U.S., at 298–299, n. 14, 96 S.Ct., at 1547, n. 14, and that HUD’s own administrative practice treated the Chicago metropolitan area as an undifferentiated whole, id., at 299, 96 S.Ct., at 1547. Thus, “[t]he relevant geographic area for purposes of the respondents’ housing options is the Chicago housing market, not the Chicago city limits.” Ibid. Because the relevant district is the greater metropolitan area, drawing the remedial line at the city limits would be “arbitrary and mechanical.” Id., at 300, 96 S.Ct., at 1547.
Justice SOUTER, post, at 2087–2088, makes much of how HUD phrased the question presented: whether it is appropriate to grant “ ‘inter-district relief for discrimination in public housing in the absence of a finding of an interdistrict violation.’ ” Gautreaux, supra, at 292, 96 S.Ct., at 1544. HUD obviously had an interest in phrasing the question thus, since doing so *107 emphasizes the alleged deviation from Milliken I. But the Court was free to reject HUD’s characterization of the relevant district, which it did:

“The housing market area ‘usually extends beyond the city limits’ and in the larger markets ‘may extend into several adjoining counties.’ ... An order against HUD and CHA regulating their conduct in the greater metropolitan area will do no more than take into account HUD’s expert determination of the area relevant to the respondents’ housing opportunities and will thus be wholly commensurate with ‘the nature and extent of the constitutional violation.’ ” 425 U.S., at 299–300, 96 S.Ct., at 1547 (quoting Milliken I, supra, 418 U.S., at 744, 94 S.Ct., at 3127).
In light of this explicit holding, any suggestion that Gautreaux dispensed with the predicates of Milliken I for interdistrict relief rings hollow.
This distinction notwithstanding, the dissent emphasizes a footnote in Gautreaux, in which we reversed the finding by the Court of Appeals that “either an interdistrict violation or an interdistrict segregative effect may have been present,” 425 U.S., at 294, n. 11, 96 S.Ct., at 1545, n. 11, and argues that implicit in that holding is a suggestion that district lines may be ignored even absent a showing of interdistrict segregative effects, post, at 2090. But no footnote is an island, entire of itself, and our statement in footnote 11 must be read in context. As explained above, we rejected the petitioner’s categorical suggestion that “court-ordered metropolitan area relief in this case would be impermissible as a matter of law,” 425 U.S., at 305, 96 S.Ct., at 1550. But the Court of Appeals had gone too far the other way, suggesting that the District Court had to consider metropolitan area relief because the conditions of Milliken I—i.e., interdistrict violation or significant interdistrict segregative effects—had been established as a factual matter. We reversed these ill-advised findings by the appellate court in order to preserve to the District Court its proper role, *108 acknowledged by the dissent, post, at 2090, n. 8, of finding the necessary facts and exercising its discretion accordingly. Indeed, in footnote 11 itself, we repeated the requirement of a “significant segregative effect in another district,” Milliken I, 418 U.S., at 745, 94 S.Ct., at 3127, and held that the Court of Appeals’ “unsupported speculation falls far short of the demonstration” required, Gautreaux, supra, 425 U.S., at 295, n. 11, 96 S.Ct., at 1545, n. 11. There would have been little need to overrule the Court of Appeals expressly on these factual matters if they were indeed irrelevant.
**2059 It is this reading of Hills v. Gautreaux—as an affirmation of, not a deviation from, Milliken I—that the Court of Appeals itself adopted in an earlier phase of this litigation: “Milliken and Hills make clear that we may grant interdistrict relief only to remedy a constitutional violation by the SSD [suburban school district], or to remedy an interdistrict effect in the SSD caused by a constitutional violation in KCMSD.” Jenkins v. Missouri, 807 F.2d 657, 672 (CA8 1986) (en banc). Perhaps Gautreaux was “mentioned only briefly” by the respondents, post, at 2090, because the case may actually lend support to the State’s argument.
Absent Gautreaux, the dissent hangs on the semantic distinction that “the District Court did not mean by an ‘intradistrict violation’ what the Court apparently means by it today. The District Court meant that the violation within the KCMSD had not led to segregation outside of it, and that no other school districts had played a part in the violation. It did not mean that the violation had not produced effects of any sort beyond the district.” Post, at 2083. The relevant inquiry under Milliken I and Gautreaux, however, is not whether the intradistrict violation “produced effects of any sort beyond the district,” but rather whether such violation caused “significant segregative effects” across district boundaries, Milliken I, supra, 418 U.S., at 745, 94 S.Ct., at 3127. When the Court of Appeals affirmed the District Court’s initial remedial order, it specifically stated that the District Court “dealt not only with the issue of whether the SSDs [suburban school *109 districts] were constitutional violators but also whether there were significant interdistrict segregative effects.... When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met.” Jenkins v. Missouri, 807 F.2d, at 672. This holding is unambiguous. Neither the legal responsibility for nor the causal effects of KCMSD’s racial segregation transgressed its boundaries, and absent such interdistrict violation or segregative effects, Milliken and Gautreaux do not permit a regional remedial plan.
Justice SOUTER, however, would introduce a different level of ambiguity, arguing that the District Court took a limited view of what effects are segregative: “[W]hile white flight would have produced significant effects in other school districts, in the form of greatly increased numbers of white students, those effects would not have been segregative beyond the KCMSD, as the departing students were absorbed into wholly unitary systems.” Post, at 2085. Even if accurate, this characterization of the District Court’s findings would be of little significance as to its authority to order interdistrict relief. Such remedy is appropriate only “to eliminate the interdistrict segregation directly caused by the constitutional violation,” Milliken I, supra, 418 U.S., at 745, 94 S.Ct., at 3127. Whatever effects KCMSD’s constitutional violation may be ventured to have had on the surrounding districts, those effects would justify interdistrict relief only if they were “segregative beyond the KCMSD.”
School desegregation remedies are intended, “as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Milliken I, 418 U.S., at 746, 94 S.Ct., at 3128. In the

paradigmatic case of an interdistrict violation, where district boundaries are drawn on the basis of race, a regional remedy is appropriate to ensure integration across district lines. So, too, where surrounding districts contribute to the constitutional *110 violation by affirmative acts intended to segregate the races—e.g., where those districts “arrang[e] for white students residing in the Detroit District to attend schools in Oakland and Macomb Counties,” id., at 746–747, 94 S.Ct., at 3128. Milliken I of course permits interdistrict remedies in these instances of interdistrict violations. Beyond that, interdistrict remedies are also proper where “there has been a constitutional violation within one district that produces a significant segregative effect in another district.” Id., at 745, 94 S.Ct., at 3127. Such segregative effect may be present where a predominantly black district accepts black children from adjacent districts, see id., at 750, 94 S.Ct., at 3130, or perhaps even where the fact of intradistrict segregation actually **2060 causes whites to flee the district, cf. Gautreaux, 425 U.S., at 295, n. 11, 96 S.Ct., at 1545, for example, to avoid discriminatorily underfunded schools—and such actions produce regional segregation along district lines. In those cases, where a purely intradistrict violation has caused a significant interdistrict segregative effect, certain interdistrict remedies may be appropriate. Where, however, the segregative effects of a district’s constitutional violation are contained within that district’s boundaries, there is no justification for a remedy that is interdistrict in nature and scope.
Here, where the District Court found that KCMSD students attended schools separated by their race and that facilities have “literally rotted,” Jenkins v. Missouri, 672 F.Supp. 400, 411 (WD Mo.1987), it of course should order restorations and remedies that would place previously segregated black KCMSD students at par with their white KCMSD counterparts. The District Court went further, however, and ordered certain improvements to KCMSD as a whole, including schools that were not previously segregated; these district-wide remedies may also be justified (the State does not argue the point here) in light of the finding that segregation caused “a system wide reduction in student achievement in the schools of the KCMSD,” Jenkins v. Missouri, 639 F.Supp. 19, 24 (WD Mo.1985). Such remedies *111 obviously may benefit some who did not suffer under—and, indeed, may have even profited from—past segregation. There is no categorical constitutional prohibition on nonvictims enjoying the collateral, incidental benefits of a remedial plan designed “to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.” Milliken I, 418 U.S., at 746, 94 S.Ct., at 3128. Thus, if restoring KCMSD to unitary status would attract whites into the school district, such a reversal of the white exodus would be of no legal consequence.
What the District Court did in this case, however, and how it transgressed the constitutional bounds of its remedial powers, was to make desegregative attractiveness the underlying goal of its remedy for the specific purpose of reversing the trend of white flight. However troubling that trend may be, remedying it is within the District Court’s authority only if it is “directly caused by the constitutional violation.” Id., at 745, 94 S.Ct., at 3127. The Court and the dissent attempt to reconcile the different statements by the lower courts as to whether white flight was caused by segregation or desegregation. See ante, at 2052–2053; post, at 2084–2086. One fact, however, is uncontroverted. When the District Court found that KCMSD was racially segregated, the constitutional violation from which all remedies flow in this case, it also found that there was neither an interdistrict violation nor significant interdistrict segregative effects. See Jenkins v. Missouri, 807 F.2d, at 672; ante, at 2053. Whether the white exodus that has resulted in a school district that is 68% black was caused by the District Court’s remedial orders or by natural, if unfortunate, demographic forces, we have it directly from the District Court that the segregative effects of KCMSD’s constitutional violation did not transcend its geographical boundaries. In light of that finding, the District Court cannot order remedies seeking to rectify regional demographic trends that go beyond the nature and scope of the constitutional violation.
*112 This case, like other school desegregation litigation, is concerned with “the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds.” Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S., at 22, 91 S.Ct., at 1279. Those myriad factors are not readily corrected by judicial intervention, but are best addressed by the representative branches; time and again, we have recognized the ample authority legislatures possess to combat racial injustice, see, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 487–488, 113 S.Ct. 2194, 2200–2201; Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443–444, 88 S.Ct. 2186, 2205–2206, 20 L.Ed.2d 1189 (1968); Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723–1724, 16 L.Ed. 2d 828 (1966); **2061 South Carolina v. Katzenbach, 383 U.S. 301, 326, 86 S.Ct. 803, 817–818, 15 L.Ed.2d 769 (1966). It is true that where such legislative efforts classify persons on the basis of their race, we have mandated strict judicial scrutiny to ensure that the personal right to equal protection of the laws has not been infringed. Richmond v. J.A. Croson Co., 488 U.S. 469, 493–494, 109 S.Ct. 706, 721–722, 102 L.Ed.2d 854 (1989) (plurality opinion). But it is not true that strict scrutiny is “strict in theory, but fatal in fact,” Fullilove v. Klutznick, 448 U.S. 448, 519, 100 S.Ct. 2758, 2795–2796, 65 L.Ed.2d 902 (1980) (Marshall, J., concurring in judgment); cf. post, at 2065 (THOMAS, J., concurring). It is only by applying strict scrutiny that we can distinguish between unconstitutional discrimination and narrowly tailored remedial programs that legislatures may enact to further the compelling governmental interest in redressing the effects of past discrimination.

Courts, however, are different. The necessary restrictions on our jurisdiction and authority contained in Article III of the Constitution limit the judiciary’s institutional capacity to prescribe palliatives for societal ills. The unfortunate fact of racial imbalance and bias in our society, however pervasive or invidious, does not admit of judicial intervention absent a constitutional violation. Thus, even though the Civil War Amendments altered the balance of authority between federal and state legislatures, see *113 Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676 (1880), Justice THOMAS cogently observes that “what the federal courts cannot do at the federal level they cannot do against the States; in either case, Article III courts are constrained by the inherent constitutional limitations on their powers.” Post, at 2070–2071. Unlike Congress, which enjoys “ ‘discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ ” Croson, supra, 488 U.S., at 490, 109 S.Ct., at 720 (quoting Katzenbach v. Morgan, supra, 384 U.S., at 651, 86 S.Ct., at 1724), federal courts have no comparable license and must always observe their limited judicial role. Indeed, in the school desegregation context, federal courts are specifically admonished to “take into account the interests of state and local authorities in managing their own affairs,” Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (Milliken II ), in light of the intrusion into the area of education, “where States historically have been sovereign,” United States v. Lopez, 514 U.S. 549, 564, 115 S.Ct. 1624, 1632, 131 L.Ed.2d 626 (1995), and “to which States lay claim by right of history and expertise,” id., at 583, 115 S.Ct., at 1641 (KENNEDY, J., concurring).
In this case, it may be the “myriad factors of human existence,” Swann, supra, at 22, 91 S.Ct., at 1279, that have prompted the white exodus from KCMSD, and the District Court cannot justify its transgression of the above constitutional principles simply by invoking desegregative attractiveness. The Court today discusses desegregative attractiveness only insofar as it supports the salary increase order under review, see ante, at 2047, 2049, and properly refrains from addressing the propriety of all the remedies that the District Court has ordered, revised, and extended in the 18–year history of this case. These remedies may also be improper to the extent that they serve the same goals of desegregative attractiveness and suburban comparability that we hold today to be impermissible, and, conversely, the District Court may be able to justify some remedies without reliance on these goals. But these are questions that the Court rightly leaves to be answered on remand. For now, it is enough to affirm the *114 principle that “the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation.” Milliken II, supra, at 280, 97 S.Ct., at 2757.
For these reasons, I join the opinion of the Court.
Justice THOMAS, concurring.
It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior. Instead of focusing on remedying the harm done to those black schoolchildren injured by segregation, the District Court here sought to convert the Kansas City, Missouri, School District (KCMSD) into a “magnet district” **2062 that would reverse the “white flight” caused by desegregation. In this respect, I join the Court’s decision concerning the two remedial issues presented for review. I write separately, however, to add a few thoughts with respect to the overall course of this litigation. In order to evaluate the scope of the remedy, we must understand the scope of the constitutional violation and the nature of the remedial powers of the federal courts.
Two threads in our jurisprudence have produced this unfortunate situation, in which a District Court has taken it upon itself to experiment with the education of the KCMSD’s black youth. First, the court has read our cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority. Second, we have permitted the federal courts to exercise virtually unlimited equitable powers to remedy this alleged constitutional violation. The exercise of this authority has trampled upon principles of federalism and the separation of powers and has freed courts to pursue other agendas unrelated to the narrow purpose of precisely remedying a constitutional harm.
*115 I

A
The mere fact that a school is black does not mean that it is the product of a constitutional violation. A “racial imbalance does not itself establish a violation of the Constitution.” United States v. Fordice, 505 U.S. 717, 745, 112 S.Ct. 2727, 2744, 120 L.Ed.2d 575 (1992) (THOMAS, J., concurring). Instead, in order to find unconstitutional segregation, we require that plaintiffs “prove all of the essential elements of de jure segregation—that is, stated simply, a current condition of segregation resulting from intentional state action directed specifically to the [allegedly segregated] schools.” Keyes v. School Dist. No. 1, Denver, 413 U.S. 189, 205–206, 93 S.Ct. 2686, 2696, 37 L.Ed.2d 548 (1973) (emphasis added). “[T]he differentiating factor between de jure segregation and so-called de facto segregation ... is purpose or intent to segregate.” Id., at 208, 93 S.Ct., at 2697 (emphasis in original).
In the present case, the District Court inferred a continuing constitutional violation from two primary facts: the existence of de jure segregation in the KCMSD prior to 1954, and the existence of de facto segregation today. The District Court found that in 1954, the KCMSD operated 16 segregated schools for black students, and that in 1974 39 schools in the district were more than 90% black. Desegregation efforts reduced this figure somewhat, but the District Court stressed that 24 schools remained “racially isolated,” that is, more than 90% black, in 1983–1984. Jenkins v. Missouri, 593 F.Supp. 1485, 1492–1493 (WD Mo.1984). For the District Court, it followed that the KCMSD had not dismantled the dual system entirely. Id., at 1493. The District Court also concluded that because of the KCMSD’s failure to “become integrated on a system-wide basis,” the dual system still exerted “lingering effects” upon KCMSD black students, whose “general attitude of inferiority” produced “low achievement ... which ultimately limits employment opportunities and causes poverty.” Id., at 1492.
*116 Without more, the District Court’s findings could not have supported a finding of liability against the State. It should by now be clear that the existence of one-race schools is not by itself an indication that the State is practicing segregation. See, e.g., Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 26, 91 S.Ct. 1267, 1281, 28 L.Ed.2d 554 (1971); Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424, 435–437, 96 S.Ct. 2697, 2704–2705, 49 L.Ed.2d 599 (1976); Freeman v. Pitts, 503 U.S. 467, 493–494, 112 S.Ct. 1430, 1447, 118 L.Ed.2d 108 (1992). The continuing “racial isolation” of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions. Here, for instance, the demography of the entire KCMSD has changed considerably since 1954. Though blacks accounted for only 18.9% of KCMSD’s enrollment in 1954, by 1983–1984 the school district was 67.7% black. **2063 593 F.Supp., at 1492, 1495. That certain schools are overwhelmingly black in a district that is now more than two-thirds black is hardly a sure sign of intentional state action.
In search of intentional state action, the District Court linked the State and the dual school system of 1984 in two ways. First, the court found that “[i]n the past” the State had placed its “imprimatur on racial discrimination.” As the court explained, laws from the Jim Crow era created “an atmosphere in which ... private white individuals could justify their bias and prejudice against blacks,” with the possible result that private realtors, bankers, and insurers engaged in more discriminatory activities than would otherwise have occurred. Id., at 1503. But the District Court itself acknowledged that the State’s alleged encouragement of private discrimination was a fairly tenuous basis for finding liability. Ibid. The District Court therefore rested the State’s liability on the simple fact that the State had intentionally created the dual school system before 1954, and had failed to fulfill “its affirmative duty of disestablishing a dual school system subsequent to 1954.” Id., at 1504. According to the District Court, the schools whose student bodies were *117 more than 90% black constituted “vestiges” of the prior de jure segregation, which the State and the KCMSD had an obligation to eliminate. Id., at 1504, 1506. Later, in the course of issuing its first “remedial” order, the District Court added that a “system wide reduction in student achievement in the schools of ... KCMSD” was also a vestige of the prior de jure segregation. Jenkins v. Missouri, 639 F.Supp. 19, 24 (WD Mo.1985) (emphasis deleted).1 In a subsequent order, the District Court indicated that post–1954 “white flight” was another vestige of the pre–1954 segregated system. 1 App. 126.
In order for a “vestige” to supply the ground for an exercise of remedial authority, it must be clearly traceable to the dual school system. The “vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied.” Freeman v. Pitts, 503 U.S., at 496, 112 S.Ct., at 1448. District courts must not confuse the consequences of de jure segregation with the results of larger social forces or of private decisions. “It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation.” Ibid.; accord, id., at 501, 112 S.Ct., at 1451. (SCALIA, J., concurring); Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 512, 99 S.Ct. 2941, 2964, 61 L.Ed.2d 666 (1979) (REHNQUIST, J., dissenting); Pasadena City Bd. of Ed. v. Spangler, supra, at 435–436, 96 S.Ct., at 2704–2705. As state-enforced segregation recedes further into the past, it is more likely that “these kinds of continuous and massive demographic shifts,”

Freeman, 503 U.S., at 495, 112 S.Ct., at 1448, will be the real source of racial imbalance or of poor educational performance in a school district. *118 And as we have emphasized, “[i]t is beyond the authority and beyond the practical ability of the federal courts to try to counteract” these social changes. Ibid.
When a district court holds the State liable for discrimination almost 30 years after the last official state action, it must do more than show that there are schools with high black populations or low test scores. Here, the District Judge did not make clear how the high black enrollments in certain schools were fairly traceable to the State of Missouri’s actions. I do not doubt that Missouri maintained the despicable system of segregation until 1954. But I question the District Court’s conclusion that because the State had enforced segregation until 1954, its actions, or lack thereof, proximately caused the “racial isolation” of the predominantly black schools in 1984. In fact, where, as here, the finding of liability comes so late in the day, I would think it incumbent upon the District Court to explain how more recent social or demographic phenomena did not cause the **2064 “vestiges.” This the District Court did not do.
B
Without a basis in any real finding of intentional government action, the District Court’s imposition of liability upon the State of Missouri improperly rests upon a theory that racial imbalances are unconstitutional. That is, the court has “indulged the presumption, often irrebuttable in practice, that a presently observed [racial] imbalance has been proximately caused by intentional state action during the prior de jure era.” United States v. Fordice, 505 U.S., at 745, 112 S.Ct., at 2744 (THOMAS, J., concurring) (citing Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979), and Keyes v. School Dist. No. 1, 413 U.S., at 211, 93 S.Ct., at 2698–2699). In effect, the court found that racial imbalances constituted an ongoing constitutional violation that continued to inflict harm on black students. *119 This position appears to rest upon the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.
The District Court’s willingness to adopt such stereotypes stemmed from a misreading of our earliest school desegregation case. In Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I ), the Court noted several psychological and sociological studies purporting to show that de jure segregation harmed black students by generating “a feeling of inferiority” in them. Seizing upon this passage in Brown I, the District Court asserted that “forced segregation ruins attitudes and is inherently unequal.” 593 F.Supp., at 1492. The District Court suggested that this inequality continues in full force even after the end of de jure segregation:
“The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty. While it may be true that poverty results in low achievement regardless of race, it is undeniable that most poverty-level families are black. The District stipulated that as of 1977 they had not eliminated all the vestiges of the prior dual system. The Court finds the inferior education indigenous of the state-compelled dual school system has lingering effects in the [KCMSD].” Ibid. (citations omitted).
Thus, the District Court seemed to believe that black students in the KCMSD would continue to receive an “inferior education” despite the end of de jure segregation, as long as de facto segregation persisted. As the District Court later concluded, compensatory educational programs were necessary “as a means of remedying many of the educational problems which go hand in hand with racially isolated minority student populations.” 639 F.Supp., at 25. Such assumptions and any social science research upon which they rely *120 certainly cannot form the basis upon which we decide matters of constitutional principle.2
It is clear that the District Court misunderstood the meaning of Brown I. Brown I did not say that “racially isolated” schools were inherently inferior; the harm that it **2065 identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental, truth that the government cannot discriminate among its citizens on the basis of race. See McConnell, Originalism and the Desegregation Decisions, 81 Va.L.Rev. 947 (1995). As the Court’s unanimous opinion indicated: “[I]n the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Brown I, supra, 347 U.S., at 495, 74 S.Ct., at 692. At the heart of this interpretation of the Equal Protection Clause lies the principle that the government must treat citizens *121 as individuals, and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny, which (aside from two decisions rendered in the midst of wartime, see Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed.

1774 (1943); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944)) has proven automatically fatal.
Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources—making blacks “feel” superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination—the critical inquiry for ascertaining violations of the Equal Protection Clause. The judiciary is fully competent to make independent determinations concerning the existence of state action without the unnecessary and misleading assistance of the social sciences.
Regardless of the relative quality of the schools, segregation violated the Constitution because the State classified students based on their race. Of course, segregation additionally harmed black students by relegating them to schools with substandard facilities and resources. But neutral policies, such as local school assignments, do not offend the Constitution when individual private choices concerning work or residence produce schools with high black populations. See Keyes v. School Dist. No. 1, 413 U.S., at 211, 93 S.Ct., at 2698–2699. The Constitution does not prevent individuals from choosing to live together, to work together, or to send their children to school together, so long as the State does not interfere with their choices on the basis of race.
Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no *122 reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. Indeed, it may very well be that what has been true for historically black colleges is true for black middle and high schools. Despite their origins in “the shameful history of state-enforced segregation,” these institutions can be “ ‘both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of ... learning for their children.’ ” Fordice, 505 U.S., at 748, 112 S.Ct., at 2746. (THOMAS, J., concurring) (citation omitted). Because of their “distinctive histories and traditions,” ibid., black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.
Thus, even if the District Court had been on firmer ground in identifying a link between the KCMSD’s pre–1954 de jure segregation and the present “racial isolation” of some of the district’s schools, mere de facto segregation (unaccompanied by discriminatory inequalities in educational resources) does not constitute a continuing harm after the end of de jure segregation. “Racial isolation” itself is not a harm; only state-enforced segregation is. After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks. Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve. To **2066 my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority.
This misconception has drawn the courts away from the important goal in desegregation. The point of the Equal Protection Clause is not to enforce strict race-mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color. The lower courts should not be swayed by the easy answers of social science, *123 nor should they accept the findings, and the assumptions, of sociology and psychology at the price of constitutional principle.
II
We have authorized the district courts to remedy past de jure segregation by reassigning students in order to eliminate or decrease observed racial imbalances, even if present methods of pupil assignment are facially neutral. See Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Green v. School Bd. of New Kent Cty., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). The District Court here merely took this approach to its logical next step. If racial proportions are the goal, then schools must improve their facilities to attract white students until the district’s racial balance is restored to the “right” proportions. Thus, fault for the problem we correct today lies not only with a twisted theory of racial injuries, but also with our approach to the remedies necessary to correct racial imbalances.
The District Court’s unwarranted focus on the psychological harm to blacks and on racial imbalances has been only half of the tale. Not only did the court subscribe to a theory of injury that was predicated on black inferiority, it also married this concept of liability to our expansive approach to remedial powers. We have given the federal courts the freedom to use any measure necessary to reverse problems—such as racial isolation or low educational achievement—that have proven stubbornly resistant to government policies. We have not permitted constitutional principles such as federalism or the

separation of powers to stand in the way of our drive to reform the schools. Thus, the District Court here ordered massive expenditures by local and state authorities, without congressional or executive authorization and without any indication that such measures would attract whites back to KCMSD or raise KCMSD test scores. The time has come for us to put the genie back in the bottle.
*124 A
The Constitution extends “[t]he judicial Power of the United States” to “all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made ... under their Authority.” Art. III, §§ 1, 2. I assume for purposes of this case that the remedial authority of the federal courts is inherent in the “judicial Power,” as there is no general equitable remedial power expressly granted by the Constitution or by statute. As with any inherent judicial power, however, we ought to be reluctant to approve its aggressive or extravagant use, and instead we should exercise it in a manner consistent with our history and traditions. See Chambers v. NASCO, Inc., 501 U.S. 32, 63–76, 111 S.Ct. 2123, 2142–49, 115 L.Ed.2d 27 (1991) (KENNEDY, J., dissenting); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 815–825, 107 S.Ct. 2124, 2141–47, 95 L.Ed.2d 740 (1987) (SCALIA, J., concurring in judgment).
Motivated by our worthy desire to eradicate segregation, however, we have disregarded this principle and given the courts unprecedented authority to shape a remedy in equity. Although at times we have invalidated a decree as beyond the bounds of an equitable remedy, see Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ), these instances have been far outnumbered by the expansions in the equity power. In United States v. Montgomery County Bd. of Ed., 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969), for example, we allowed federal courts to desegregate faculty and staff according to specific mathematical ratios, with the ultimate goal that each school in the system would have roughly the same proportions of white and black faculty. **2067 In Swann v. Charlotte–Mecklenburg Bd. of Ed., supra, we permitted federal courts to order busing, to set racial targets for school populations, and to alter attendance zones. And in Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ), we approved the use of remedial or compensatory education programs paid for by the State.
In upholding these court-ordered measures, we indicated that trial judges had virtually boundless discretion in crafting *125 remedies once they had identified a constitutional violation. As Swann put it, “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” 402 U.S., at 15, 91 S.Ct., at 1276. We did say that “the nature of the violation determines the scope of the remedy,” id., at 16, 91 S.Ct., at 1276, but our very next sentence signaled how weak that limitation was: “In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system,” ibid.
It is perhaps understandable that we permitted the lower courts to exercise such sweeping powers. Although we had authorized the federal courts to work toward “a system of determining admission to the public schools on a nonracial basis” in Brown v. Board of Education, 349 U.S. 294, 300–301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II ), resistance to Brown I produced little desegregation by the time we decided Green v. School Bd. of New Kent Cty., supra. Our impatience with the pace of desegregation and with the lack of a good-faith effort on the part of school boards led us to approve such extraordinary remedial measures. But such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution. The judicial overreaching we see before us today perhaps is the price we now pay for our approval of such extraordinary remedies in the past.
Our prior decision in this litigation suggested that we would approve the continued use of these expansive powers even when the need for their exercise had disappeared. In Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990) (Jenkins II ), the District Court in this litigation had ordered an increase in local property taxes in order to fund its capital improvements plan. KCMSD, which had been ordered by the Court to finance 25% of the plan, could not pay its share due to state constitutional and statutory provisions placing a cap on property taxes. Id., at 38, 41, 110 S.Ct., at 1656, 1657–1658. Although we held that principles *126 of comity barred the District Court from imposing the tax increase itself (except as a last resort), we also concluded that the court could order KCMSD to raise taxes, and could enjoin the state laws preventing KCMSD from doing so. With little analysis, we held that “a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court.” Id., at 55, 110 S.Ct., at 1665.
Our willingness to unleash the federal equitable power has reached areas beyond school desegregation. Federal courts have

used “structural injunctions,” as they are known, not only to supervise our Nation’s schools, but also to manage prisons, see Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), mental hospitals, Thomas S. v. Flaherty, 902 F.2d 250 (C.A. 4), cert. denied, 498 U.S. 951, 111 S.Ct. 373, 112 L.Ed.2d 335 (1990), and public housing, Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976). See generally D. Horowitz, The Courts and Social Policy 4–9 (1977). Judges have directed or managed the reconstruction of entire institutions and bureaucracies, with little regard for the inherent limitations on their authority.
B
Such extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers’ design. The available historical records suggest that the Framers did not intend federal equitable remedies to reach as broadly as we have permitted. Anticipating the growth of our **2068 modern doctrine, the Anti–Federalists criticized the Constitution because it might be read to grant broad equitable powers to the federal courts. In response, the defenders of the Constitution “sold” the new framework of government to the public by espousing a narrower interpretation of the equity power. When an attack on the Constitution is followed by an open Federalist effort to narrow the provision, the appropriate conclusion is that the drafters and ratifiers of the Constitution approved the more limited construction offered in response. See McIntyre v. Ohio *127 Elections Comm’n, 514 U.S. 334, 367, 115 S.Ct. 1511, 1528–1529, 131 L.Ed.2d 426 (1995) (THOMAS, J., concurring in judgment).
The rise of the English equity courts as an alternative to the rigors of the common law, and the battle between the courts of equity and the courts of common law, is by now a familiar tale. See T. Plucknett, A Concise History of the Common Law 191–198, 673–694 (5th ed. 1956). By the middle of the 18th century, equity had developed into a precise legal system encompassing certain recognized categories of cases, such as those involving special property forms (trusts) or those in which the common law did not provide relief (fraud, forgery, or mistake). See 5 W. Holdsworth, History of English Law 300–338 (1927); S. Milsom, Historical Foundations of the Common Law 85–87 (1969); J. Baker, An Introduction to English Legal History 93–95 (2d ed. 1979). In this fixed system, each of these specific actions then called for a specific equitable remedy.
Blackstone described the principal differences between courts of law and courts of equity as lying only in the “modes of administering justice,”—“in the mode of proof, the mode of trial, and the mode of relief.” 3 W. Blackstone, Commentaries on the Laws of England 436 (1768). As to the last, the English jurist noted that courts of equity held a concurrent jurisdiction when there is a “want of a more specific remedy, than can be obtained in the courts of law.” Id., at 438. Throughout his discussion, Blackstone emphasized that courts of equity must be governed by rules and precedents no less than the courts of law. “[I]f a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible.” Id., at 440. If their remedial discretion had not been cabined, Blackstone warned, equity courts would have undermined *128 the rule of law and produced arbitrary government. “[The judiciary’s] powers would have become too arbitrary to have been endured in a country like this, which boasts of being governed in all respects by law and not by will.” Ibid. (footnote omitted); see also 1 id., at 61–62.3
So cautioned, the Framers approached equity with suspicion. As Thomas Jefferson put it: “Relieve the judges from the rigour of text law, and permit them, with pretorian discretion, to wander into it’s equity, and the whole legal system becomes incertain.” 9 Papers of Thomas Jefferson 71 (J. Boyd ed. 1954). Suspicion of judicial discretion led to criticism of Article III during the ratification of the Constitution. Anti–Federalists attacked the Constitution’s extension of the federal judicial power to “Cases, in Law and Equity,” arising under the Constitution and federal statutes. According to the Anti–Federalists, the reference to equity granted federal judges excessive discretion to deviate from the requirements of the law. Said the “Federal Farmer,” “by thus joining the word equity with the word law, if we mean any thing, we seem to mean to give the judge a discretionary power.” Federal Farmer No. 15, Jan. 18, 1788, in 2 The Complete Anti–Federalist 322 (H. Storing ed. 1981) (hereinafter Storing). He hoped that the Constitution’s mention of equity jurisdiction was not **2069 “intended to lodge an arbitrary power or discretion in the judges, to decide as their conscience, their opinions, their caprice, or their politics might dictate.” Id., at 322–323.4 Another Anti–Federalist, Brutus, argued that the *129 equity power would allow federal courts to “explain the constitution according to the reasoning spirit of it, without being confined to the words or letter.” Brutus No. 11, Jan. 31, 1788, id., at 419. This, predicted Brutus, would result in the growth of federal power and the “entire subversion of the legislative, executive and judicial powers of the individual states.” Id., at 420. See G. McDowell, Equity and the Constitution 43–44 (1982).

These criticisms provoked a Federalist response that explained the meaning of Article III’s words. Answering the Anti– Federalist challenge in The Federalist Papers, Alexander Hamilton described the narrow role that the federal judicial power would play. Initially, Hamilton conceded that the federal courts would have some freedom in interpreting the laws and that federal judges would have lifetime tenure. The Federalist No. 78, p. 528 (J. Cooke ed. 1961). Nonetheless, Hamilton argued (as Blackstone had in describing the English equity courts) that rules and established practices would limit and control the judicial power: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Id., at 529. Cf. 1 J. Story, Commentaries on Equity Jurisprudence §§ 18–20, pp. 15–17 (I. Redfield 9th ed. 1866). Hamilton emphasized that “[t]he great and primary use of a court of equity is to give relief in extraordinary cases,” and that “the principles by which that relief is governed are now reduced to a regular system.” The Federalist No. 83, at 569, and n.
*130 In response to Anti–Federalist concerns that equity would permit federal judges an unchecked discretion, Hamilton explicitly relied upon the precise nature of the equity system that prevailed in England and had been transplanted in America. Equity jurisdiction was necessary, Hamilton argued, because litigation “between individuals” often would contain claims of “fraud, accident, trust or hardship, which would render the matter an object of equitable, rather than of legal jurisdiction.” Id., No. 80, at 539. “In such cases,” Hamilton concluded, “where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable, as well as a legal jurisdiction.” Id., at 540. Thus, Hamilton sought to narrow the expansive Anti–Federalist reading of inherent judicial equity power by demonstrating that the defined nature of the English and colonial equity system—with its specified claims and remedies—would continue to exist under the federal judiciary. In line with the prevailing understanding of equity at the time, Hamilton described Article III “equity” as a jurisdiction over certain types of cases rather than as a broad remedial power. Hamilton merely repeated the well-known principle that equity would be controlled no less by rules and practices than was the common law.
In light of this historical evidence, it should come as no surprise that there is no early record of the exercise of broad remedial powers. Certainly there were no “structural injunctions” issued by the federal courts, nor were there any examples of continuing judicial supervision and management of governmental institutions. Such exercises of judicial power would have appeared to violate principles of state sovereignty and of the separation of powers as late in the day as the turn of the century. “Born out of the desegregation litigation in the 1950’s and 1960’s, **2070 suits for affirmative injunctions were virtually unknown when the Court decided Ex parte Young, [209 U.S. 123, 158, 28 S.Ct. 441, 453, 52 L.Ed. 714 (1908)].” Dwyer, *131 Pendent Jurisdiction and the Eleventh Amendment, 75 Calif.L.Rev. 129, 162 (1987) (footnotes omitted). Indeed, it appears that the Framers continued to follow English equity practice well after the Ratification. See, e.g., Robinson v. Campbell, 3 Wheat. 212, 221–223, 4 L.Ed. 372 (1818). At the very least, given the Federalists’ public explanation during the ratification of the federal equity power, we should exercise the power to impose equitable remedies only sparingly, subject to clear rules guiding its use.
C
Two clear restraints on the use of the equity power—federalism and the separation of powers—derive from the very form of our Government. Federal courts should pause before using their inherent equitable powers to intrude into the proper sphere of the States. We have long recognized that education is primarily a concern of local authorities. “[L]ocal autonomy of school districts is a vital national tradition.” Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 410, 97 S.Ct. 2766, 2770, 53 L.Ed.2d 851 (1977); see also United States v. Lopez, 514 U.S. 549, 580, 115 S.Ct. 1624, 1640, 131 L.Ed.2d 626 (1995) (KENNEDY, J., concurring); Milliken I, 418 U.S., at 741–742, 94 S.Ct., at 3125–26; San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 1305, 36 L.Ed.2d 16 (1973); ante, at 2061 (O’CONNOR, J., concurring). A structural reform decree eviscerates a State’s discretionary authority over its own program and budgets and forces state officials to reallocate state resources and funds to the desegregation plan at the expense of other citizens, other government programs, and other institutions not represented in court. See Dwyer, supra, at 163. When district courts seize complete control over the schools, they strip state and local governments of one of their most important governmental responsibilities, and thus deny their existence as independent governmental entities.
Federal courts do not possess the capabilities of state and local governments in addressing difficult educational problems. State and local school officials not only bear the responsibility for educational decisions, they also are better equipped than a single federal judge to make the day-to-day *132 policy, curricular, and funding choices necessary to bring a school district into compliance with the Constitution. See Wright v. Council of Emporia, 407 U.S. 451, 477–478, 92 S.Ct. 2196, 2210–11, 33

L.Ed.2d 51 (1972) (Burger, C.J., dissenting).5 Federal courts simply cannot gather sufficient information to render an effective decree, have limited resources to induce compliance, and cannot seek political and public support for their remedies. See generally P. Schuck, Suing Government 150–181 (1983). When we presume to have the institutional ability to set effective educational, budgetary, or administrative policy, we transform the least dangerous branch into the most dangerous one.
The separation of powers imposes additional restraints on the judiciary’s exercise of its remedial powers. To be sure, this is not a case of one branch of Government encroaching on the prerogatives of another, but rather of the power of the Federal Government over the States. Nonetheless, what the federal courts cannot do at the federal level they **2071 cannot do against the States; in either case, Article III courts are constrained by the inherent constitutional limitations on their powers. There simply are certain things that courts, in order to remain courts, cannot and should not do. There *133 is no difference between courts running school systems or prisons and courts running Executive Branch agencies.
In this case, not only did the District Court exercise the legislative power to tax, it also engaged in budgeting, staffing, and educational decisions, in judgments about the location and esthetic quality of the schools, and in administrative oversight and monitoring. These functions involve a legislative or executive, rather than a judicial, power. See generally Jenkins II, 495 U.S., at 65–81, 110 S.Ct., at 1670–79. (KENNEDY, J., concurring in part and concurring in judgment); Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 Stan.L.Rev. 661 (1978). As Alexander Hamilton explained the limited authority of the federal courts: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78, at 526. Federal judges cannot make the fundamentally political decisions as to which priorities are to receive funds and staff, which educational goals are to be sought, and which values are to be taught. When federal judges undertake such local, day-to-day tasks, they detract from the independence and dignity of the federal courts and intrude into areas in which they have little expertise. Cf. Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L.Rev. 949 (1978).
It is perhaps not surprising that broad equitable powers have crept into our jurisprudence, for they vest judges with the discretion to escape the constraints and dictates of the law and legal rules. But I believe that we must impose more precise standards and guidelines on the federal equitable power, not only to restore predictability to the law and reduce judicial discretion, but also to ensure that constitutional remedies are actually targeted toward those who have been injured.
*134 D
The dissent’s approval of the District Court’s treatment of salary increases is typical of this Court’s failure toplace limits on the equitable remedial power. The dissent frames the inquiry thus: “The only issue, then, is whether the salary increases ordered by the District Court have been reasonably related to achieving” the goal of remedying a systemwide reduction in student achievement, “keeping in mind the broad discretion enjoyed by the District Court in exercising its equitable powers.” Post, at 2081. In response to its question, the dissent concludes that “it is difficult to see how the District Court abused its discretion” in either the 1992 or 1993 orders, ibid., and characterizes the lower court’s orders as “beyond reproach,” post, at 2082. When the standard of review is as vague as whether “Federal-court decrees ... directly address and relate to the constitutional violation,” Milliken II, 433 U.S., at 281–282, 97 S.Ct., at 2758, it is difficult to ever find a remedial order “unreasonable.” Such criteria provide district courts with little guidance, and provide appellate courts few principles with which to review trial court decisions. If the standard reduces to what one believes is a “fair” remedy, or what vaguely appears to be a good “fit” between violation and remedy, then there is little hope of imposing the constraints on the equity power that the Framers envisioned and that our constitutional system requires.
Contrary to the dissent’s conclusion, the District Court’s remedial orders are in tension with two commonsense principles. First, the District Court retained jurisdiction over the implementation and modification of the remedial decree, instead of terminating its involvement after issuing its remedy. Although briefly mentioned in Brown II as a temporary measure to overcome local resistance to desegregation, 349 U.S., at 301, 75 S.Ct., at 756 (“During this period of transition, the courts will retain jurisdiction”), this concept of continuing judicial involvement has permitted the District Courts to revise **2072 their remedies constantly in order to reach some broad, abstract, *135 and often elusive goal. Not only does this approach deprive the parties of finality and a clear understanding of their responsibilities, but it also tends to inject the judiciary into the day-to-day management of institutions and local policies—a function that lies outside of our Article III competence. Cf. Fuller, The Forms and Limits of Adjudication, 92 Harv.L.Rev. 353 (1978).

Much of the District Court’s overreaching in this case occurred because it employed this hit-or-miss method to shape, and reshape, its remedial decree.6 Using its authority of continuing jurisdiction, the court pursued its goal of decreasing “racial isolation” regardless of the cost or of the difficulties of engineering demographic changes. Wherever possible, district courts should focus their remedial discretion on devising and implementing a unified remedy in a single decree. This method would still provide the lower courts with *136 substantial flexibility to tailor a remedy to fit a violation, and courts could employ their contempt power to ensure compliance. To ensure that they do not overstep the boundaries of their Article III powers, however, district courts should refrain from exercising their authority in a manner that supplants the proper sphere reserved to the political branches, who have a coordinate duty to enforce the Constitution’s dictates, and to the States, whose authority over schools we have long sought to preserve. Only by remaining aware of the limited nature of its remedial powers, and by giving the respect due to other governmental authorities, can the judiciary ensure that its desire to do good will not tempt it into abandoning its limited role in our constitutional Government.
Second, the District Court failed to target its equitable remedies in this case specifically to cure the harm suffered by the victims of segregation. Of course, the initial and most important aspect of any remedy will be to eliminate any invidious racial distinctions in matters such as student assignments, transportation, staff, resource allocation, and activities. This element of most desegregation decrees is fairly straightforward and has not produced many examples of overreaching by the district courts. It is the “compensatory” ingredient in many desegregation plans that has produced many of the difficulties in the case before us.
Having found that segregation “has caused a system wide reduction in student achievement in the schools of the KCMSD,” 639 F.Supp., at 24, the District Court ordered the series of magnet school plans, educational programs, and capital improvements that the Court criticizes today because of their interdistrict nature. In ordering these programs, the District Court exceeded its authority by benefiting those who were not victims of discriminatory conduct. KCMSD as a whole may have experienced reduced achievement levels, but raising the test scores of the entire district is a goal that is not sufficiently tailored to restoring the victims of segregation to the position they would have occupied absent *137 discrimination. A school district **2073 cannot be discriminated against on the basis of its race, because a school district has no race. It goes without saying that only individuals can suffer from discrimination, and only individuals can receive the remedy.
Of course, a district court may see fit to order necessary remedies that have the side effect of benefiting those who were not victims of segregation. But the court cannot order broad remedies that indiscriminately benefit a school district as a whole, rather than the individual students who suffered from discrimination. Not only do such remedies tend to indicate “efforts to achieve broader purposes lying beyond” the scope of the violation, Swann, 402 U.S., at 22, 91 S.Ct., at 1279, but they also force state and local governments to work toward the benefit of those who have suffered no harm from their actions.
To ensure that district courts do not embark on such broad initiatives in the future, we should demand that remedial decrees be more precisely designed to benefit only those who have been victims of segregation. Race-conscious remedies for discrimination not only must serve a compelling governmental interest (which is met in desegregation cases), but also must be narrowly tailored to further that interest. See Richmond v. J.A. Croson Co., 488 U.S. 469, 509–510, 109 S.Ct. 706, 730– 731, 102 L.Ed.2d 854 (1989) (plurality opinion). In the absence of special circumstances, the remedy for de jure segregation ordinarily should not include educational programs for students who were not in school (or were even alive) during the period of segregation. Although I do not doubt that all KCMSD students benefit from many of the initiatives ordered by the court below, it is for the democratically accountable state and local officials to decide whether they are to be made available even to those who were never harmed by segregation.
III
This Court should never approve a State’s efforts to deny students, because of their race, an equal opportunity for an *138 education. But the federal courts also should avoid using racial equality as a pretext for solving social problems that do not violate the Constitution. It seems apparent to me that the District Court undertook the worthy task of providing a quality education to the children of KCMSD. As far as I can tell, however, the District Court sought to bring new funds and facilities into the KCMSD by finding a constitutional violation on the part of the State where there was none. Federal courts should not lightly assume that States have caused “racial isolation” in 1984 by maintaining a segregated school system in 1954. We must forever put aside the notion that simply because a school district today is black, it must be educationally inferior.

Even if segregation were present, we must remember that a deserving end does not justify all possible means. The desire to reform a school district, or any other institution, cannot so captivate the judiciary that it forgets its constitutionally mandated role. Usurpation of the traditionally local control over education not only takes the judiciary beyond its proper sphere, it also deprives the States and their elected officials of their constitutional powers. At some point, we must recognize that the judiciary is not omniscient, and that all problems do not require a remedy of constitutional proportions.
Justice SOUTER, with whom Justice STEVENS, Justice GINSBURG, and Justice BREYER join, dissenting.
The Court’s process of orderly adjudication has broken down in this case. The Court disposes of challenges to only two of the District Court’s many discrete remedial orders by declaring that the District Court erroneously provided an interdistrict remedy for an intradistrict violation. In doing so, it resolves a foundational issue going to one element of the District Court’s decree that we did not accept for review in this case, that we need not reach in order to answer the questions that we did accept for review, and that we specifically *139 refused to consider when it was presented in a prior petition for certiorari. Since, under these circumstances, the respondent school district and pupils naturally came to this Court without expecting that a fundamental premise of a portion of the District Court’s remedial order would **2074 become the focus of the case, the essence of the Court’s misjudgment in reviewing and repudiating that central premise lies in its failure to have warned the respondents of what was really at stake. This failure lulled the respondents into addressing the case without sufficient attention to the foundational issue, and their lack of attention has now infected the Court’s decision.
No one on the Court has had the benefit of briefing and argument informed by an appreciation of the potential breadth of the ruling. The deficiencies from which we suffer have led the Court effectively to overrule a unanimous constitutional precedent of 20 years’ standing, which was not even addressed in argument, was mentioned merely in passing by one of the parties, and discussed by another of them only in a misleading way.
The Court’s departures from the practices that produce informed adjudication would call for dissent even in a simple case. But in this one, with a trial history of more than 10 years of litigation, the Court’s failure to provide adequate notice of the issue to be decided (or to limit the decision to issues on which certiorari was clearly granted) rules out any confidence that today’s result is sound, either in fact or in law.
I
In 1984, 30 years after our decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the District Court found that the State of Missouri and the Kansas City, Missouri, School District (KCMSD) had failed to reform the segregated scheme of public school education in the KCMSD, previously mandated by the State, which had required black and white children to be taught separately according to race. Jenkins *140 v. Missouri, 593 F.Supp. 1485, 1490–1494, 1503–1505 (WD Mo.1984).1 After Brown, neither the State nor the KCMSD moved to dismantle this system of separate education “root and branch,” id., at 1505, despite their affirmative obligation to do that under the Constitution. Green v. School Bd. of New Kent Cty., 391 U.S. 430, 437–438, 88 S.Ct. 1689, 1693–1694, 20 L.Ed.2d 716 (1968). “Instead, the [KCMSD] chose to operate some completely segregated schools and some integrated ones,” Jenkins, 593 F.Supp., at 1492, using devices like optional attendance zones and liberal transfer policies to “allo [w] attendance patterns to continue on a segregated basis.” Id., at 1494. Consequently, on the 20th anniversary of Brown in 1974, 39 of the 77 schools in the KCMSD had student bodies that were more than 90 percent black, and 80 percent of all black schoolchildren in the KCMSD attended those schools. 593 F.Supp., at 1492–1493. Ten years later, in the 1983–1984 school year, 24 schools remained racially isolated with more than 90 percent black enrollment. Id., at 1493. Because the State and the KCMSD intentionally created this segregated system of education, and subsequently failed to correct it, the District Court concluded that the State and the district had “defaulted in their obligation to uphold the Constitution.” Id., at 1505.
Neither the State nor the KCMSD appealed this finding of liability, after which the District Court entered a series of remedial orders aimed at eliminating the vestiges of segregation. *141 Since the District Court found that segregation had caused, among other things, “a system wide reduction in student achievement in the schools of the KCMSD,” Jenkins v. Missouri, 639 F.Supp. 19, 24 (WD Mo.1985) (emphasis in original), it ordered the adoption, starting in 1985, of a series of remedial

programs to raise educational performance. As the Court recognizes, the District Court acted well within the bounds of its equitable discretion in doing so, ante, at 2050, 2055; in **2075 Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ), we held that a district court is authorized to remedy all conditions flowing directly from the constitutional violations committed by state or local officials, including the educational deficits that result from a segregated school system (programs aimed to correct those deficits are therefore frequently referred to as Milliken II programs). Id., at 281–283, 97 S.Ct., at 2757–2759. Nor was there any objection to the District Court’s orders from the State and the KCMSD, who agreed that it was “ ‘appropriate to include a number of properly targeted educational programs in [the] desegregation plan,’ ” Jenkins, 639 F.Supp., at 24 (quoting from the State’s desegregation proposal). They endorsed many of the initiatives directed at improving student achievement that the District Court ultimately incorporated into its decree, including those calling for the attainment of AAA status for the KCMSD (a designation, conferred by the State Department of Elementary and Secondary Education upon consideration of a limited number of criteria, indicating “that a school system quantitatively and qualitatively has the resources necessary to provide minimum basic education to its students,” id., at 26), full day kindergarten, summer school, tutoring before and after school, early childhood development, and reduction in class sizes. Id., at 24–26.
Between 1985 and 1987 the District Court also ordered the implementation of a magnet school concept, 1 App. 131–133 (Order of Nov. 12, 1986), and extensive capital improvements to the schools of the KCMSD. *142 Jenkins v. Missouri, 672 F.Supp. 400, 405–408 (WD Mo.1987); 1 App. 133–134 (Order of Nov. 12, 1986); Jenkins, 639 F.Supp., at 39–41. The District Court found that magnet schools would not only serve to remedy the deficiencies in student achievement in the KCMSD, but would also assist in desegregating the district by attracting white students back into the school system. See, e.g., 1 App. 118 (Order of June 16, 1986) (“[C]ommitment, when coupled with quality planning and sufficient resources can result in the establishment of magnet schools which can attract non-minority enrollment as well as be an integral part of district-wide improved student achievement”); see also Jenkins v. Missouri, 855 F.2d 1295, 1301 (CA8 1988) (“The foundation of the plans adopted was the idea that improving the KCMSD as a system would at the same time compensate the blacks for the education they had been denied and attract whites from within and without the KCMSD to formerly black schools”).
The District Court, finding that the physical facilities in the KCMSD had “literally rotted,” Jenkins, 672 F.Supp., at 411, similarly grounded its orders of capital improvements in the related remedial objects of improving student achievement and desegregating the KCMSD. Jenkins, 639 F.Supp., at 40. (“The improvement of school facilities is an important factor in the overall success of this desegregation plan. Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan”); see also Jenkins, 855 F.2d, at 1305 (“[T]he capital improvements [are] required both to improve the education available to the victims of segregation as well as to attract whites to the schools”).
*143 As a final element of its remedy, in 1987 the District Court ordered funding for increases in teachers’ salaries as a step toward raising the level of student achievement. “[I]t is essential that the KCMSD have sufficient revenues to fund an operating budget which can provide quality education, including a high quality faculty.” Jenkins, 672 F.Supp., at 410. Neither the State nor the KCMSD objected to increases in teachers’ salaries as an element of the comprehensive remedy, or to this cost as an item in the desegregation budget.
In 1988, however, the State went to the Eighth Circuit with a broad challenge to the District Court’s remedial concept of magnet schools and to its orders of capital improvements (though it did not appeal the salary order), arguing that the District Court had **2076 run afoul of Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ), by ordering an interdistrict remedy for an intradistrict violation. The Eighth Circuit rejected the State’s position, Jenkins, 855 F. 2d 1295, and in 1989 the State petitioned for certiorari.
The State’s petition presented two questions for review, one challenging the District Court’s authority to order a property tax increase to fund its remedial program, the other going to the legitimacy of the magnet school concept at the very foundation of the Court’s desegregation plan:
“For a purely intradistrict violation, the courts below have ordered remedies—costing hundreds of millions of dollars— with the stated goals of attracting more non-minority students to the school district and making programs and facilities comparable to those in neighboring districts....
“The questio[n] presented [is]....

“... Whether a federal court, remedying an intradistrict violation under Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), may
*144 “a) impose a duty to attract additional non-minority students to a school district, and
“b) require improvements to make the district schools comparable to those in surrounding districts.” Pet. for Cert. in Missouri v. Jenkins, O.T.1988, No. 88–1150, p. i.
We accepted the taxation question, and decided that while the District Court could not impose the tax measure itself, it could require the district to tax property at a rate adequate to fund its share of the costs of the desegregation remedy. Missouri v. Jenkins, 495 U.S. 33, 50–58, 110 S.Ct. 1651, 1662–1667, 109 L.Ed.2d 31 (1990). If we had accepted the State’s broader, foundational question going to the magnet school concept, we could also have made an informed decision on whether that element of the District Court’s remedial scheme was within the limits of the Court’s equitable discretion in response to the constitutional violation found. Each party would have briefed the question fully and would have identified in some detail those items in the record bearing on it. But none of these things happened. Instead of accepting the foundational question in 1989, we denied certiorari on it. Missouri v. Jenkins, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403.
The State did not raise that question again when it returned to this Court with its 1994 petition for certiorari, which led to today’s decision. Instead, the State presented, and we agreed to review, these two questions:
“1. Whether a remedial educational desegregation program providing greater educational opportunities to victims of past de jure segregation than provided anywhere else in the country nonetheless fails to satisfy the Fourteenth Amendment (thus precluding a finding of partial unitary status) solely because student achievement in the District, as measured by results on standardized test scores, has not risen to some unspecified level?
“2. Whether a federal court order granting salary increases to virtually every employee of a school district—including *145 non-instructional personnel—as a part of a school desegregation remedy conflicts with applicable decisions of this court which require that remedial components must directly address and relate to the constitutional violation and be tailored to cure the condition that offends the Constitution?” Pet. for Cert. i.
These questions focus on two discrete issues: the extent to which a district court may look at students’ test scores in determining whether a school district has attained partial unitary status as to its Milliken II educational programs, and whether the particular salary increases ordered by the District Court constitute a permissible component of its remedy.
The State did not go beyond these discrete issues, and it framed no broader, foundational question about the validity of the District Court’s magnet concept. The Court decides, however, that it can reach that question of its own initiative, and it sees no bar to this course in the provision of this Court’s Rule 14.1 that “[o]nly the questions set forth in the petition, or fairly included therein, will be considered....” Ante, at 2047. The broader **2077 issue, the Court claims, is “fairly included” in the State’s salary question. But that claim does not survive scrutiny.
The standard under Rule 14.1 is quite simple: as the Court recognizes, we have held that an issue is fairly comprehended in a question presented when the issue must be resolved in order to answer the question. See ibid., citing Procunier v. Navarette, 434 U.S. 555, 560, n. 6, 98 S.Ct. 855, 858, n. 6, 55 L.Ed.2d 24 (1978); United States v. Mendenhall, 446 U.S. 544, 551–552, n. 5, 100 S.Ct. 1870, 1875–1876, n. 5, 64 L.Ed.2d 497 (1980). That should be the end of the matter here, since the State itself concedes that we can answer its salary and test-score questions without addressing the soundness of the magnet element of the District Court’s underlying remedial scheme, see Brief for Petitioners 18 (“each question [presented] can be dealt with on its own terms ...”). While the Court ignores that concession, it is patently correct. There *146 is no reason why we cannot take the questions as they come to us; assuming the validity of the District Court’s basic remedial concept, we can determine the significance of test scores and assess the salary orders in relation to that concept.
Of course, as we understand necessity in prudential matters like this, it comes in degrees, and I would not deny that sometimes differing judgments are possible about the need to go beyond a question as originally accepted. But this is not even arguably such a case. It is instead a case that presents powerful reasons to confine discussion to the questions taken.2
Quite naturally, the respondents here chose not to devote any significant attention to a question not raised, and they presumably had no reason to designate for printing those portions of the record bearing on an issue not apparently before us. And while respondents seemingly gave some thought to the bare possibility that the Court would choose *147 to deal with

the discrete questions by going beyond them to a more comprehensive underlying issue, they were entitled to reject that possibility as a serious one for the very reason that the Court had already, in 1989, expressly refused to consider that foundational issue when the State expressly attempted to raise it. Our deliberate refusal to entertain so important an issue is and ought to be a reasonable basis to infer that we will not subsequently allow it to be raised on our own motion without saying so in advance and giving notice to a party whose interests might be adversely affected.
Thus the Court misses the point when it argues that the foundational issue is in a sense antecedent to the specific ones raised, and that those can be answered by finding error in some element of the underlying remedial scheme. Even if the Court were correct that the foundational issue could be reached under Rule 14.1, the critical question surely is whether that issue may fairly be decided without clear warning, at the culmination of a course of litigation in which this Court has specifically refused to consider the issue and given no indication of any subsequent change of mind. The answer is obviously no. And the Court’s claim of necessity rings particularly hollow when one considers that if it really were essential to decide the **2078 foundational issue to address the two questions that are presented, the Court could give notice to the parties of its intention to reach the broader issue, and allow for adequate briefing and argument on it. And yet the Court does none of that, but simply decides the issue without any warning to respondents.
If there is any doubt about the lack of fairness and prudence displayed by the Court, it should disappear upon seeing two things: first, how readily the questions presented can be answered on their own terms, without giving any countenance to the State’s now successful attempt to “ ‘smuggl[e] additional questions into a case after we grant[ed] certiorari,’ ” Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 34, 114 S.Ct. 425, 428, 126 L.Ed.2d 396 (1993), quoting *148 Irvine v. California, 347 U.S. 128, 129, 74 S.Ct. 381, 381, 98 L.Ed. 561 (1954) (plurality opinion of Jackson, J.); and, second, how the Court’s decision to go beyond those questions to address an issue not adequately briefed or argued by one set of parties leads it to render an opinion anchored in neither the findings and evidence contained in the record, nor in controlling precedent, which is squarely at odds with the Court’s holding today.
II
A
The test-score question as it comes to us is one of word play, not substance. While the Court insists that the District Court’s Order of June 17, 1992 (the only order relevant to the test-score question on review here), “requir[ed] the State to continue to fund the quality education programs because student achievement levels [in the KCMSD] were still ‘at or below national norms at many grade levels’ ...,” ante, at 2055; see also ante, at 2042, that order contains no discussion at all of student achievement levels in the KCMSD in comparison to national norms, and in fact does not explicitly address the subject of partial unitary status. App. to Pet. for Cert. A–69 to A–75. The reference to test scores “at or below national norms” comes from an entirely different and subsequent order of the District Court (dated Apr. 16, 1993) which is not under review. Its language presumably would not have been quoted to us, if the Court of Appeals’s opinion affirming the District Court’s June 17, 1992, order had not canvassed subsequent orders and mentioned the District Court’s finding of fact that the “KCMSD is still at or below national norms at many grade levels,” 11 F.3d 755, 762 (CA8 1993), citing Order of Apr. 16, 1993, App. to Pet. for Cert. A–130. In any event, what is important here is that none of the District Court’s or Court of Appeals’s opinions or orders requires a certain level of test scores before unitary status can be found, or indicates that test scores are the only thing standing between the State and a finding of unitary *149 status as to the KCMSD’s Milliken II programs. Indeed, the opinion concurring in the denial of rehearing en banc below (not mentioned by the Court, although it is certainly more probative of the governing law in the Eighth Circuit than the dissenting opinion on which the Court does rely) expressly disavows any dispositive role for test scores:
“The dissent accepts, at least in part, the State’s argument that the district court adopted a student achievement goal, measured by test scores, as the only basis for determining whether past discrimination has been remedied.... When we deal with student achievement in a quality education program in the context of relieving a school district of court supervision, test results must be considered. Test scores, however, must be only one factor in the equation. Nothing in this court’s opinion, the district court’s opinion, or the testimony of KCMSD’s witnesses indicates that test results were the only criteria used in denying the State’s claim that its obligation for the quality education programs should be ended by a declaration they are unitary.” 19 F.3d 393, 395 (1994) (Gibson, J., concurring in denial of rehearing en banc).

If, then, test scores do not explain why there was no finding of unitary status as to the Milliken II programs, one may ask what does explain it. The answer is quite straightforward. The Court of Appeals refused **2079 to order the District Court to enter a finding of partial unitary status as to the KCMSD’s Milliken II programs (and apparently, the District Court did not speak to the issue itself) simply because the State did not attempt to make the showing required for that relief. As the Court recognizes, ante, at 2049, we have established a clear set of procedures to be followed by governmental entities seeking the partial termination of a desegregation decree. In Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), we held that “[t]he duty and responsibility *150 of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system.” Id., at 485, 112 S.Ct., at 1443. Accordingly, before a district court may grant a school district (or other governmental entity) partial release from a desegregation decree, it must first consider “whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn....” Id., at 491, 112 S.Ct., at 1446. Full and satisfactory compliance, we emphasized in Freeman, is to be measured by “ ‘whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.’ ” Id., at 492, 112 S.Ct., at 1446, quoting Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 249–250, 111 S.Ct. 630, 637–638, 112 L.Ed.2d 715 (1991). The district court must then consider “whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district [or other governmental entity] has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.” 503 U.S., at 491, 112 S.Ct., at 1446. The burden of showing that these conditions to finding partial unitary status have been met rests (as one would expect) squarely on the constitutional violator who seeks relief from the existing remedial order. Id., at 494, 112 S.Ct., at 1447.
While the Court recognizes the three-part showing that the State must make under Freeman in order to get a finding of partial unitary status, ante, at 2049, it fails to acknowledge that the State did not even try to make a Freeman showing in the litigation leading up to the District Court’s Order of June 17, 1992. The District Court’s order was triggered not by a motion for partial unitary status filed by the State, but by a motion filed by the KCMSD for approval of its desegregation plan for the 1992–1993 school year. See App. to Pet. for Cert. A–69. While the State’s response to *151 that motion suggested that the District Court should enter a finding of partial unitary status as to the district’s Milliken II component of its decree, State’s Response to KCMSD Motion for Approval of Desegregation Plan for 1992–1993, pp. 1–20 (hereinafter State’s Response), the State failed even to allege its compliance with two of the three prongs of the Freeman test.
The State did not claim that implementation of the Milliken II component of the decree had remedied the reduction in student achievement in the KCMSD to the extent practicable; it simply argued that various Milliken II programs had been implemented. State’s Response 9–17. Accordingly, in the hearings held by the District Court on the KCMSD’s motion, the State’s expert witness testified only that the various Milliken II programs had been implemented and had increased educational opportunity in the district. 2 App. 439–483. With the exception of the “effective schools” program, he said nothing about the effects of those programs on student achievement, and in fact admitted on cross-examination that he did not have an opinion as to whether the programs had remedied to the extent practicable the reduction in student achievement caused by the segregation in the KCMSD.
“Q: Dr. Stewart, do you, testifying on behalf of the State ... have an opinion as to whether or not the educational deficits that you acknowledged were vestiges of the prior segregation have been eliminated to the extent practicable in the Kansas City School District?
**2080 “A: No, that’s not the purpose of my testimony, Mr. Benson.” Id., at 483.
Nor did the State focus on its own good faith in complying with the District Court’s decree; it emphasized instead the district’s commitment to the decree and to the constitutional provisions on which the decree rested. State’s Response 8. The State, indeed, said nothing to contradict the very findings *152 made elsewhere by the District Court that have called the State’s own commitment to the success of the decree into question. See, e.g., 1 App. 136 (Order of Nov. 12, 1986) (“[D]uring the course of this lawsuit the Court has not been informed of one affirmative act voluntarily taken by the Executive Department of the State of Missouri or the Missouri General Assembly to aid a school district that is involved in a desegregation program”); see also App. to Pet. for Cert. A–123 (Order of Apr. 16, 1993) (“The State, also a constitutional violator, has historically opposed the implementation of any program offered to desegregate the KCMSD. The Court recognizes that the State has had to bear the brunt of the costs of desegregation due to the joint and several liability finding previously made by the Court. However, the State has never offered the Court a viable, even tenable, alternative and has been extremely antagonistic in its approach to effecting the desegregation of the KCMSD”) (emphasis in original).

Thus, it was the State’s failure to meet or even to recognize its burden under Freeman that led the Court of Appeals to reject the suggestion that it make a finding of partial unitary status as to the district’s Milliken II education programs:
“It is ... significant that the testimony of [the State’s expert] did no more than describe the successful establishment of the several educational programs, but gave no indication of whether these programs had succeeded in improving student achievement....
“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....
*153 “... [Further, the] State did not try to prove that it has demonstrated a good faith commitment to the whole of the court’s decree....
. . . . .
“... [T]he district court did not abuse its discretion in continuing the quality education programs.” 11 F.3d, at 764–765 (citations omitted).
Examining only the first Freeman prong, there can be no doubt that the Court of Appeals was correct. Freeman and Dowell make it entirely clear that the central focus of this prong of the unitary status enquiry is on effects: to the extent reasonably possible, a constitutional violator must remedy the ills caused by its actions before it can be freed of the court-ordered obligations it has brought upon itself. Under the logic of the State’s arguments to the District Court, the moment the Milliken II programs were put in place, the State was at liberty to walk away from them, no matter how great the remaining consequences of segregation for educational quality or how great the potential for curing them if state funding continued.
Looking ahead, if indeed the State believes itself entitled to a finding of partial unitary status on the subject of educational programs, there is an orderly procedural course for it to follow. It may frame a proper motion for partial unitary status, and prepare to make a record sufficient to allow the District Court and the Court of Appeals to address the continued need for and efficacy of the Milliken II programs.
In the development of a proper unitary status record, test scores will undoubtedly play a role. It is true, as the Court recognizes, that all parties to this case agree that it would be error to require that the students in a school district attain the national average test score as a prerequisite to a finding of partial unitary status, if only because all sorts of causes independent of the vestiges of past school segregation might stand in the way of the goal. Ante, at 2055–2056. That *154 said, test scores will clearly be relevant in determining whether the improvement programs have cured a deficiency in student **2081 achievement to the practicable extent. The District Court has noted (in the finding that the Court would read as a dispositive requirement for unitary status) that while students’ scores have shown a trend of improvement, they remain at or below national norms. App. to Pet. for Cert. A–131 (Order of Apr. 16, 1993). The significance of this fact is subject to assessment. Depending, of course, on other facts developed in the course of unitary status proceedings, the improvement to less than the national average might reasonably be taken to show that education programs are having a good effect on student achievement, and that further improvement can be expected. On the other hand, if test-score changes were shown to have flattened out, that might suggest the impracticability of any additional remedial progress. While the significance of scores is thus open to judgment, the judgment is not likely to be very sound unless it is informed by more of a record than we have in front of us, and the Court’s admonition that the District Court should “sharply limit” its reliance on test scores, ante, at 2055, should be viewed in this light.
B
The other question properly before us has to do with the propriety of the District Court’s recent salary orders. While the Court suggests otherwise, ante, at 2047, 2055, the District Court did not ground its orders of salary increases solely on the goal of attracting students back to the KCMSD. From the start, the District Court has consistently treated salary increases as an important element in remedying the systemwide reduction in student achievement resulting from segregation in the KCMSD. As noted above, the Court does not question this remedial goal, which we expressly approved in Milliken II. See supra, at 2074–2076. The only issue, then, is whether the salary increases ordered by the District Court have been reasonably related to

achieving *155 that goal, keeping in mind the broad discretion enjoyed by the District Court in exercising its equitable powers.
The District Court first ordered KCMSD salary increases, limited to teachers, in 1987, basing its decision on the need to raise the level of student achievement. “[I]t is essential that the KCMSD have sufficient revenues to fund an operating budget which can provide quality education, including a high quality faculty.” Jenkins, 672 F.Supp., at 410. The State raised no objection to the District Court’s order, and said nothing about the issue of salary increases in its 1988 appeal to the Eighth Circuit.
When the District Court’s 1987 order expired in 1990, all parties, including the State, agreed to a further order increasing salaries for both instructional and noninstructional personnel through the 1991–1992 school year. 1 App. 332–337 (Order of July 23, 1990). In 1992 the District Court merely ordered that salaries in the KCMSD be maintained at the same level for the following year, rejecting the State’s argument that desegregation funding for salaries should be discontinued, App. to Pet. for Cert. A–76 to A–93 (Order of June 25, 1992), and in 1993 the District Court ordered small salary increases for both instructional and noninstructional personnel through the end of the 1995–1996 school year. App. to Pet. for Cert. A–94 to A– 109 (Order of June 30, 1993).
It is the District Court’s 1992 and 1993 orders that are before us, and it is difficult to see how the District Court abused its discretion in either instance. The District Court had evidence in front of it that adopting the State’s position and discontinuing desegregation funding for salary levels would result in their abrupt drop to 1986–1987 levels, with the resulting disparity between teacher pay in the district and the nationwide level increasing to as much as 40 to 45 percent, and a mass exodus of competent employees likely taking place. Id., at A–76, A–78 to A–91. Faced with this evidence, the District Court found that continued desegregation funding of salaries, and small increases in those salaries *156 over time, were essential to the successful implementation of its remedial scheme, including the elevation of student achievement:
“[I]n the absence of desegregation funding for salaries, the District will not be able to implement its desegregation plan....
. . . . .
**2082 “High quality personnel are necessary not only to implement specialized desegregation programs intended to ‘improve educational opportunities and reduce racial isolation,’ but also to ‘ensure that there is no diminution in the quality of its regular academic program.’ ...
“... There is no question but that a salary roll back would have effects that would drastically impair implementation of the desegregation remedy.
. . . . . “... A salary roll back would result in excessive employee turnover, a decline in the quality and commitment of work and an inability of the KCMSD to achieve the objectives of the desegregation plan.” Id., at A–86 to A–91 (Order of June 25, 1992), quoting Jenkins, 855 F.2d, at 1301, and Jenkins, 672 F.Supp., at 410.
See also App. to Pet. for Cert. A–95 to A–97, A–101 to A–102 (Order of June 30, 1993). The Court of Appeals affirmed the District Court’s orders on the basis of these findings, again taking special note of the importance of adequate salaries to the remedial goal of improving student achievement:
“[Q]uality education programs and magnet schools [are] a part of the remedy for the vestiges of segregation causing a system wide reduction in student achievement in the KCMSD schools.... The significant finding of the [district] court with respect to the earlier funding order was that the salary increases were essential to comply with the court’s desegregation orders, and that high *157 quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD.
. . . . .
“... It is evident that the district court had before it substantial evidence of a statistically significant reduction in the turnover rates for full-time employees, a dramatic increase in the percentage of certified employees selecting KCMSD because of the salary increases, and a significant decline in the number of employees lost to other districts. Further, the court heard testimony that the average performance evaluation for the professional employees increased positively and significantly.” 13 F.3d 1170, 1172–1174 (CA8 1993).

See also 11 F.3d, at 766–769.
There is nothing exceptionable in the lower courts’ findings about the relationship between salaries and the District Court’s remedial objectives, and certainly nothing in the record suggests obvious error as to the amounts of the increases ordered.3 If it is tempting to question the place of salary increases for administrative and maintenance personnel in a desegregation order, the Court of Appeals addressed the temptation in specifically affirming the District Court’s finding that such personnel are critical to the success of the desegregation effort, 13 F.3d, at 1174 (referring to order of June 30, 1993, App. to Pet. for Cert. A–104), and did so in the circumstances of a district whose schools have been plagued by leaking roofs, defective lighting, and reeking *158 lavatories. See Jenkins, 855 F.2d, at 1306; Jenkins, 672 F.Supp., at 403–404. As for teachers’ increases, the District Court and the Court of Appeals were beyond reproach in finding and affirming that in order to remedy the educational deficits flowing from segregation in the KCMSD, “those persons charged with implementing the [remedial] plan [must] be the most qualified persons reasonably attainable,” App. to Pet. for Cert. A–102.
Indeed, the Court does not question the District Court’s salary orders insofar as they relate to the objective of raising the level of student achievement in the KCMSD, but rather overlooks that basis for the orders altogether. The Court suggests that the District Court rested its approval of salary increases only on the object of drawing students **2083 into the district’s schools, ante, at 2050, and rejects the increases for that reason. It seems clear, however, that the District Court and the Court of Appeals both viewed the salary orders as serving two complementary but distinct purposes, and to the extent that the District Court concludes on remand that its salary orders are justified by reference to the quality of education alone, nothing in the Court’s opinion precludes those orders from remaining in effect.
III
The two discrete questions that we actually accepted for review are, then, answerable on their own terms without any need to consider whether the District Court’s use of the magnet school concept in its remedial plan is itself constitutionally vulnerable. The capacity to deal thus with the questions raised, coupled with the unfairness of doing otherwise without warning, are enough to demand a dissent.
But there is more to fuel dissent. On its face, the Court’s opinion projects an appealing pragmatism in seeming to cut through the details of many facts by applying a rule of law that can claim both precedential support and intuitive sense, that there is error in imposing an interdistrict remedy to *159 cure a merely intradistrict violation. Since the District Court has consistently described the violation here as solely intradistrict, and since the object of the magnet schools under its plan includes attracting students into the district from other districts, the Court’s result seems to follow with the necessity of logic, against which arguments about detail or calls for fair warning may not carry great weight.
The attractiveness of the Court’s analysis disappears, however, as soon as we recognize two things. First, the District Court did not mean by an “intradistrict violation” what the Court apparently means by it today. The District Court meant that the violation within the KCMSD had not led to segregation outside of it, and that no other school districts had played a part in the violation. It did not mean that the violation had not produced effects of any sort beyond the district. Indeed, the record that we have indicates that the District Court understood that the violation here did produce effects spanning district borders and leading to greater segregation within the KCMSD, the reversal of which the District Court sought to accomplish by establishing magnet schools.4 Insofar as the Court assumes that this *160 was not so in fact, there is at least enough in the record to cast serious doubt on its assumption. Second, the Court violates existing case law even on its own apparent view of the facts, that the segregation violation within the KCMSD produced no proven effects, segregative or otherwise, outside it. Assuming this to be true, the Court’s decision that the rule against interdistrict remedies for intradistrict violations applies to this case, solely because the remedy here is meant to produce effects outside the district in which the violation occurred, is flatly contrary to established precedent.
A
The Court appears to assume that the effects of segregation were wholly contained within the KCMSD, and based on this

assumption argues that any remedy looking beyond the district’s boundaries is forbidden. The Court’s position rests on the premise that the District Court and the Court of **2084 Appeals erred in finding that segregation had produced effects outside the district, and hence were in error when they treated the reversal of those effects as a proper subject of the equitable power to eliminate the remaining vestiges of the old segregation so far as practicable.
The Court has not shown the trial court and the Eighth Circuit to be wrong on the facts, however, and on the record before us this Court’s factual assumption is at the very least a questionable basis for removing one major foundation of the desegregation decree. I do not, of course, claim to be in a position to say for sure that the Court is wrong, for I, like the Court, am a victim of an approach to the case uninformed by any warning that a foundational issue would be dispositive. My sole point is that the Court is not in any obvious sense correct, wherever the truth may ultimately lie.
To be sure, the District Court found, and the Court of Appeals affirmed, that the suburban school districts (SSD’s) had taken no action contributing to segregation in the KCMSD. Jenkins v. Missouri, 807 F.2d 657, 664, 668–670 (CA8 1986); *161 3 App. 723, 738 (Order of June 5, 1984). Those courts further concluded that the constitutional violations committed by the State and the KCMSD had not produced any significant segregative effects in the SSD’s, all of which have operated as unitary districts since shortly after our decision in Brown. Jenkins, 807 F.2d, at 672, 678; 3 App. 813, 816. It was indeed on the basis of just these findings that the District Court concluded that it was dealing with an intradistrict violation, and, consistently with our decision in Milliken I, refused to consolidate the SSD’s with the KCMSD. Jenkins, 807 F.2d, at 660– 661, 674; 3 App. 721–723, 725, 810–811.
There is no inconsistency between these findings and the possibility, however, that the actions of the State and the KCMSD produced significant nonsegregative effects outside the KCMSD that led to greater segregation within it. To the contrary, the District Court and the Court of Appeals concurred in finding that “the preponderance of black students in the [KCMSD] was due to the State and KCMSD’s constitutional violations, which caused white flight.... [T]he existence of segregated schools led to white flight from the KCMSD to suburban districts and to private schools.” Jenkins, 855 F.2d, at 1302, citing the District Court’s Order of Aug. 25, 1986, 1 App. 126 (“[S]egregated schools, a constitutional violation, ha[ve] led to white flight from the KCMSD to suburban districts [and] large numbers of students leaving the schools of Kansas City and attending private schools ...”). While this exodus of white students would not have led to segregation within the SSD’s, which have all been run in a unitary fashion since the time of Brown, it clearly represented an effect spanning district borders, and one which the District Court and the Court of Appeals expressly attributed to segregation in the KCMSD.
The Court, however, rejects the findings of the District Court, endorsed by the Court of Appeals, that segregation led to white flight from the KCMSD, and does so at the expense *162 of another accepted norm of our appellate procedure. We have long adhered to the view that “[a] court of law, such as this Court is, rather than a court for correction of errors in factfinding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.” Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275, 69 S.Ct. 535, 538, 93 L.Ed. 672 (1949); see also Branti v. Finkel, 445 U.S. 507, 512, n. 6, 100 S.Ct. 1287, 1291, n. 6, 63 L.Ed.2d 574 (1980) (referring to “our settled practice of accepting, absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred”). The Court fails to show any exceptional circumstance present here, however: it relies on a “contradiction” that is not an obvious contradiction at all, and on an arbitrary “supposition” that “ ‘white flight’ may result from desegregation, not de jure segregation,” ante, at 2052, a supposition said to be bolstered by the District Court’s statement that there was “an abundance of evidence that many residents of the KCMSD left the district and moved to **2085 the suburbs because of the district’s efforts to integrate its schools.” 672 F.Supp., at 412.5
The doubtful contradiction is said to exist between the District Court’s findings, on the one hand, that segregation caused white flight to the SSD’s, and the Court of Appeals’s conclusion, on the other, that the District Court “ ‘made specific findings that negate current significant interdistrict effects....’ ” Ante, at 2053, quoting Jenkins, 807 F.2d, at 672. Any impression of contradiction quickly disappears, however, when the Court of Appeals’s statement is read in context:
“[T]he [district] court explicitly recognized that [to consolidate school districts] under Milliken [I] ‘there *163 must be evidence of a constitutional violation in one district that produces a significant segregative effect in another district.’ Order of June 5, 1984 at 14, 95.... The district court thus dealt not only with the issue of whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effects. See V, infra. When it did so, it made specific findings that negate current significant interdistrict effects....” Ibid.
It is clear that, in this passage, the Court of Appeals was summarizing the District Court’s findings that the constitutional violations within the KCMSD had not produced any segregative effects in other districts. Ibid. While the Court of Appeals did not repeat the word “segregative” in its concluding sentence, there is nothing to indicate that it was referring to anything

but segregative effects, and there is in fact nothing in the District Court’s own statements going beyond its finding that the State and the KCMSD’s actions did not lead to segregative effects in the SSD’s.6 *164 There is, in turn, no contradiction between this finding and the District Court’s findings about white flight: while white flight would have produced significant effects in other school districts, in the form of greatly increased numbers of white students, those effects would not have been segregative beyond the KCMSD, as the departing students were absorbed into wholly unitary systems.
Without the contradiction, the Court has nothing to justify its rejection of the District Court’s finding that segregation caused white flight but its supposition that flight results from integration, not segregation. The supposition, and the distinction on which it rests, are untenable. At the more obvious level, there is in fact no break in the chain of causation linking the effects of desegregation with those of segregation. There would be no desegregation orders and no remedial plans without prior unconstitutional segregation as the occasion for issuing and adopting them, and an adverse reaction to a desegregation order is traceable in fact to the segregation that is subject to the remedy. When the Court quotes the District Court’s reference to abundant evidence that integration caused flight to the suburbs, then, it quotes nothing inconsistent with the District Court’s other findings that segregation had caused the flight. The only difference between the **2086 statements lies in the point to which the District Court happened to trace the causal sequence.
The unreality of the Court’s categorical distinction can be illustrated by some examples. There is no dispute that before the District Court’s remedial plan was placed into effect the schools in the unreformed segregated system were physically a shambles:
“The KCMSD facilities still have numerous health and safety hazards, educational environment hazards, functional impairments, and appearance impairments. The *165 specific problems include: inadequate lighting; peeling paint and crumbling plaster on ceilings, walls and corridors; loose tiles, torn floor coverings; odors resulting from unventilated restrooms with rotted, corroded toilet fixtures; noisy classrooms due to lack of adequate acoustical treatment; lack of off street parking and bus loading for parents, teachers and students; lack of appropriate space for many cafeterias, libraries, and classrooms; faulty and antiquated heating and electrical systems; damaged and inoperable lockers; and inadequate fire safety systems. The conditions at Paseo High School are such that even the principal stated that he would not send his own child to that facility.” 672 F.Supp., at 403 (citations omitted).
See also Jenkins, 855 F.2d, at 1300 (reciting District Court findings); Jenkins, 639 F.Supp., at 39–40. The cost of turning this shambles into habitable schools was enormous, as anyone would have seen long before the District Court ordered repairs. See Missouri v. Jenkins, 495 U.S., at 38–40, 110 S.Ct., at 1656–57 (discussing the costs of the remedial program and the resulting increases in tax rates within the KCMSD). Property tax-paying parents of white children, seeing the handwriting on the wall in 1985, could well have decided that the inevitable cost of cleanup would produce an intolerable tax rate and could have moved to escape it. The District Court’s remedial orders had not yet been put in place. Was the white flight caused by segregation or desegregation? The distinction has no significance.
Another example makes the same point. After Brown, white parents likely came to understand that the practice of spending more on white schools than on black ones would be stopped at some point. If they were unwilling to raise all expenditures to match the customary white school level, they must have expected the expenditures on white schools to drop to the level of those for the segregated black schools or to some level in between. See, e.g., 639 F.Supp., at 39–40 *166 describing a decline in all 68 of the KCMSD’s school buildings in the past “10 to 15 years”). If they thus believed that the white schools would deteriorate they might then have taken steps to establish private white schools, starting a practice of local private education that has endured. Again, what sense does it make to say of this example that the cause of white private education was desegregation (not yet underway), rather than the segregation that led to it?
I do not claim that either of these possible explanations would ultimately turn out to be correct, for any such claim would head me down the same road the Court is taking, of resolving factual issues independently of the trial court without warning the respondents that the full evidentiary record bearing on the issue should be identified for us. My point is only that the Court is on shaky grounds when it assumes that prior segregation and later desegregation are separable in fact as causes of “white flight,” that the flight can plausibly be said to result from desegregation alone, and that therefore as a matter of fact the “intradistrict” segregation violation lacked the relevant consequences outside the district required to justify the District Court’s magnet concept. With the arguable plausibility of each of these assumptions seriously in question, it is simply rash to reverse the concurrent factual findings of the District Court and the Court of Appeals. All the judges who spoke to the issue below concluded that segregated schooling in the KCMSD contributed to the exodus of white students from the district. Among them were not only the judges most familiar with the record of this litigation, Judge Clark of the District Court and the three members of the Court of Appeals panel that has retained jurisdiction **2087 over the case, see supra, at 2084–2086,

but also the five judges who dissented from the denial of rehearing en banc in the Court of Appeals (whose opinion the majority does not hesitate to rely on for other purposes):
“[By 1985], ‘[w]hite flight’ to private schools and to the suburbs was rampant.
*167 “The district court, correctly recognizing that at least part of this problem was the consequence of the de jure segregation previously practiced under Missouri constitutional and statutory law, fashioned a remedial plan for the desegregation of the KCMSD....” 19 F.3d, at 397 (Beam, J., dissenting from denial of rehearing en banc).
The reality is that the Court today overturns the concurrent factual findings of the District Court and the Court of Appeals without having identified any circumstance in the record sufficient to warrant such an extraordinary course of action.
B
To the substantial likelihood that the Court proceeds on erroneous assumptions of fact must be added corresponding errors of law. We have most recently summed up the obligation to correct the condition of de jure segregation by saying that “the duty of a former de jure district is to ‘take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.’ ” Freeman, 503 U.S., at 486, 112 S.Ct., at 1443 quoting Green, 391 U.S., at 437–438, 88 S.Ct., at 1694. Although the fashioning of judicial remedies to this end has been left, in the first instance, to the equitable discretion of the district courts, in Milliken I we established an absolute limitation on this exercise of equitable authority. “[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.” Milliken I, 418 U.S., at 745, 94 S.Ct., at 3128.
The Court proceeds as if there is no question but that this proscription applies to this case. But the proscription does not apply. We are not dealing here with an interdistrict remedy in the sense that Milliken I used the term. In the Milliken I litigation, the District Court had ordered 53 surrounding school districts to be consolidated with the Detroit *168 school system, and mandatory busing to be started within the enlarged district, even though the court had not found that any of the suburban districts had acted in violation of the Constitution. “The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district.” Id., at 743, 94 S.Ct., at 3125. It was this imposition of remedial measures on more than the one wrongdoing school district that we termed an “interdistrict remedy”:
“We ... turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district.” Id., at 744, 94 S.Ct., at 3127.
And it was just this subjection to court order of school districts not shown to have violated the Constitution that we deemed to be in error:
“Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district.... “... To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.” Id., at 744–745, 94 S.Ct., at 3127.
We did not hold, however, that any remedy that takes into account conditions outside of the district in which a constitutional violation has been committed is an “interdistrict remedy,” and as such improper in the absence of an “interdistrict violation.” To the contrary, by emphasizing that remedies in school desegregation cases are grounded in traditional equitable *169 principles, **S.Ct.2088 id., at 737–738, 94 S.Ct., at 3123–3124, we left open the possibility that a district court might subject a proven constitutional wrongdoer to a remedy with intended effects going beyond the district of the wrongdoer’s violation, when such a remedy is necessary to redress the harms flowing from the constitutional violation.
The Court, nonetheless, reads Milliken I quite differently. It reads the case as categorically forbidding imposition of a remedy on a guilty district with intended consequences in a neighboring innocent district, unless the constitutional violation yielded segregative effects in that innocent district. See, e.g., ante, at 2051 (“But this interdistrict goal [of attracting nonminority students from outside the KCMSD schools] is beyond the scope of the intradistrict violation identified by the District

Court” (emphasis deleted)).
Today’s decision therefore amounts to a redefinition of the terms of Milliken I and consequently to a substantial expansion of its limitation on the permissible remedies for prior segregation. But that is not the only prior law affected by today’s decision. The Court has not only rewritten Milliken I; it has effectively overruled a subsequent case expressly refusing to constrain remedial equity powers to the extent the Court does today, and holding that courts ordering relief from unconstitutional segregation may, with an appropriate factual predicate, exercise just the authority that the Court today eliminates.
Two Terms after Milliken, we decided Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), in a unanimous opinion by Justice Stewart. The District Court in Gautreaux had found that the United States Department of Housing and Urban Development (HUD) and the Chicago Housing Authority (CHA) had maintained a racially segregated system of public housing within the city of Chicago, in violation of various constitutional and statutory provisions. There was no indication that the violation had produced any effects outside the city itself. The issue before us was whether “the remedial order *170 of the federal trial court [might] extend beyond Chicago’s territorial boundaries.” Id., at 286, 96 S.Ct., at 1541. Thus, while Justice O’CONNOR suggests that Gautreaux may not have addressed the propriety of a remedy with effects going beyond the district in which the constitutional violation had occurred, ante, at 2057–2058, her suggestion cannot be squared with our express understanding of the question we were deciding: “the permissibility in light of Milliken of ‘interdistrict relief for discrimination in public housing in the absence of a finding of an inter-district violation.’ ” Gautreaux, supra, at 292, 96 S.Ct., at 1543–1544.
HUD argued that the case should turn on the same principles governing school desegregation orders and that, under Milliken I, the District Court’s order could not look beyond Chicago’s city limits, because it was only within those limits that the constitutional violation had been committed. 425 U.S., at 296–297, 96 S.Ct., at 1545–1546. We agreed with HUD that the principles of Milliken apply outside of the school desegregation context, 425 U.S., at 294, and n. 11, 96 S.Ct., at 1544–1545, and n. 11, but squarely rejected its restricted interpretation of those principles and its view of limited equitable authority to remedy segregation. We held that a district court may indeed subject a governmental perpetrator of segregative practices to an order for relief with intended consequences beyond the perpetrator’s own subdivision, even in the absence of effects outside that subdivision, so long as the decree does not bind the authorities of other governmental units that are free of violations and segregative effects:
“[Milliken ‘s] holding that there had to be an interdistrict violation or effect before a federal court could order the crossing of district boundary lines reflected the substantive impact of a consolidation remedy on separate and independent school districts. The District Court’s desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a *171 judicial decree restructuring the operation of local governmental entities that were not implicated in any constitutional violation.” Id., at 296, 96 S.Ct., at 1545–1546 (footnote omitted).
**2089 In the face of Gautreaux’s language, the Court claims that it was only because the “ ‘relevant geographic area for purposes of the [plaintiffs’] housing options [was] the Chicago housing market, not the Chicago city limits,’ ” ante, at 2053, quoting Gautreaux, supra, at 299, 96 S.Ct., at 1547, that we held that “ ‘a metropolitan area remedy ... [was] not impermissible as a matter of law,’ ” ante, at 2053, quoting Gautreaux, supra, at 306, 96 S.Ct., at 1550. See also ante, at 2058 (O’CONNOR, J., concurring). But that was only half the explanation. Requiring a remedy outside the city in the wider metropolitan area was permissible not only because that was the area of the housing market even for people who lived within the city (thus relating the scope of the remedy to the violation suffered by the victims) but also because the trial court could order a remedy in that market without binding a governmental unit innocent of the violation and free of its effects. In “reject[ing] the contention that, since HUD’s constitutional and statutory violations were committed in Chicago, Milliken precludes an order against HUD that will affect its conduct in the greater metropolitan area,” we stated plainly that “[t]he critical distinction between HUD and the suburban school districts in Milliken is that HUD has been found to have violated the Constitution. That violation provided the necessary predicate for the entry of a remedial order against HUD and, indeed, imposed a duty on the District Court to grant appropriate relief.” Gautreaux, 425 U.S., at 297, 96 S.Ct., at 1546. Having found HUD in violation of the Constitution, the District Court was obligated to make “every effort ... to employ those methods [necessary] ‘to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation,’ ” ibid., quoting Davis v. Board of School Comm’rs of Mobile Cty., 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971), and the District Court’s methods could include subjecting HUD to measures going beyond the *172 geographical or political boundaries of its violation. “Nothing in the Milliken decision suggests a per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred.” 425 U.S., at 298, 96 S.Ct., at 1546.

On its face, the District Court’s magnet school concept falls entirely within the scope of equitable authority recognized in Gautreaux. In Gautreaux, the fact that the CHA and HUD had the authority to operate outside the limits of the city of Chicago meant that an order to fund or build housing beyond those limits would “not necessarily entail coercion of uninvolved governmental units....” Id., at 298, 96 S.Ct., at 1547. Here, by the same token, the District Court has not sought to “consolidate or in any way restructure” the SSD’s, id., at 305–306, 96 S.Ct., at 1550–1551, or, indeed, to subject them to any remedial obligation at all.7 The District Court’s remedial measures go only to the operation and quality of schools within the KCMSD, and the burden of those measures accordingly falls only on the two proven constitutional wrongdoers in this case, the KCMSD and the State. And insofar as the District Court has ordered those violators to undertake measures to increase the KCMSD’s attractiveness to students from other districts and thereby to reverse the flight attributable to their prior segregative acts, its orders do not represent an abuse of discretion, but instead appear “wholly commensurate with the ‘nature and extent of the constitutional violation.’ ” Id., at 300, 96 S.Ct., at 1547, quoting Milliken I, 418 U.S., at 744, 94 S.Ct., at 3127.
The Court’s failure to give Gautreaux its due points up the risks of its approach to this case. The major peril of addressing an important and complex question without adequate *173 notice to the parties is the virtual certainty that briefing and argument will not go to the real point. If respondents had had reason to suspect that the validity of applying **2090 the District Court’s remedial concept of magnet schools in this case would be the focus of consideration by this Court, they presumably would have devoted significant attention to Gautreaux in their briefing. As things stand, the only references to the case in the parties’ briefs were two mere passing mentions by the Jenkins respondents and a footnote by the State implying that Gautreaux was of little relevance here. The State’s footnote says that “in Gautreaux, there was evidence of suburban discrimination and of the ‘extra-city impact of [HUD’s] intracity discrimination.’ ” Brief for Petitioners 28, n. 18. That statement, however, is flatly at odds with Justice Stewart’s opinion for the Court: “the Court of Appeals surmised that either an interdistrict violation or an interdistrict segregative effect may have been present in this case. There is no support provided for either conclusion.... [I]t is apparent that the Court of Appeals was mistaken in supposing that the [record contains] evidence of suburban discrimination justifying metropolitan area relief.... [And the Court of Appeals’s] unsupported speculation falls far short of the demonstration of a ‘significant segregative effect in another district’ discussed in the Milliken opinion.” Gautreaux, 425 U.S., at 294–295, n. 11, 96 S.Ct., at 1545, n. 11.8
*174 After being misrepresented by the State and mentioned only briefly by the other parties, Gautreaux ‘s holding is now effectively overruled, for the Court’s opinion can be viewed as correct only on that assumption. But there is no apparent reason to reverse that decision, which represented the judgment of a unanimous Court, seems to reflect equitable common sense, and has been in the reports for two decades. While I would reserve final judgment on Gautreaux ‘s future until a time when the subject has been given a full hearing, *175 I realize that after today’s decision there may never be an occasion for any serious examination of Gautreaux. If things work out that way, there will doubtless be those who will quote from Gautreaux to describe today’s opinion as “transform[ing] Milliken ‘s principled limitation on the exercise of federal judicial authority into an arbitrary and mechanical shield for those found **2091 to have engaged in unconstitutional conduct.” Id., at 300, 96 S.Ct., at 1547.
I respectfully dissent.
Justice GINSBURG, dissenting.
I join Justice SOUTER’s illuminating dissent and emphasize a consideration key to this controversy.
The Court stresses that the present remedial programs have been in place for seven years. Ante, at 2055–2056. But compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the District Court has been evanescent.
In 1724, Louis XV of France issued the Code Noir, the first slave code for the Colony of Louisiana, an area that included Missouri. Violette, The Black Code in Missouri, in 6 Proceedings of the Mississippi Valley Historical Association 287, 288 (B. Shambaugh ed. 1913). When Missouri entered the Union in 1821, it entered as a slave State. Id., at 303.
Before the Civil War, Missouri law prohibited the creation or maintenance of schools for educating blacks: “No person shall keep or teach any school for the instruction of negroes or mulattoes, in reading or writing, in this State.” Act of Feb. 16, 1847, § 1, 1847 Mo.Laws 103.

Beginning in 1865, Missouri passed a series of laws requiring separate public schools for blacks. See, e.g., Act of Mar. 29, 1866, § 20, 1865 Mo.Laws 177. The Missouri Constitution first permitted, then required, separate schools. See Mo. Const. Art. IX, § 2 (1865); Mo. Const. Art. XI, § 3 (1875).
After this Court announced its decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Missouri’s Attorney General *176 declared these provisions mandating segregated schools unenforceable. See Jenkins v. Missouri, 593 F.Supp. 1485, 1490 (WD Mo.1984). The statutes were repealed in 1957 and the constitutional provision was rescinded in 1976. Ibid. Nonetheless, 30 years after Brown, the District Court found that “the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District.” 593 F.Supp., at 1492. The District Court concluded that “the State ... cannot defend its failure to affirmatively act to eliminate the structure and effects of its past dual system on the basis of restrictive state law.” Id., at 1505. Just ten years ago, in June 1985, the District Court issued its first remedial order. Jenkins v. Missouri, 639 F.Supp. 19 (WD Mo.).
Today, the Court declares illegitimate the goal of attracting nonminority students to the Kansas City, Missouri, School District, ante, at 2052, and thus stops the District Court’s efforts to integrate a school district that was, in the 1984/1985 school year, sorely in need and 68.3% black. 639 F.Supp., at 36; see also Jenkins v. Missouri, 672 F.Supp. 400, 411 (WD Mo. 1987) (reporting that physical facilities in the School District had “literally rotted”). Given the deep, inglorious history of segregation in Missouri, to curtail desegregation at this time and in this manner is an action at once too swift and too soon. Cf. 11 F.3d 755, 762 (CA8 1993) (Court of Appeals noted with approval that the District Court had ordered the School District to submit plans projecting termination of court-ordered funding at alternative intervals, running from April 1993, of three, five, seven, or, at most, ten years).

All Citations 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63, 63 USLW 4486, 100 Ed. Law Rep. 506

Footnotes

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions

for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287,

50 L.Ed. 499.

1

“ ‘Magnet schools,’ as generally understood, are public schools of voluntary enrollment designed to promote

integration by drawing students away from their neighborhoods and private schools through distinctive curricula

and high quality.” Missouri v. Jenkins, 495 U.S. 33, 40, n. 6, 110 S.Ct. 1651, 1657, n. 6, 109 L.Ed.2d 31 (1990).

2

In April 1993, 16 years after this litigation began, the District Court acknowledged that the KCMSD and the

plaintiffs had “barely addressed ... how the KCMSD proposes to ultimately fund the school system developed

under the desegregation plan.” App. to Pet. for Cert. A–123. In the context of a proposal to extend funding of the

magnet-school program for 10 additional years at a cost of over $500 million, the District Court noted that “[t]he

District’s proposals do not include a viable method of ﬁnancing any of the programs.” Id., at A–140.

3

“Whether a federal court order granting salary increases to virtually every employee of a school district—including

non-instructional personnel—as part of a school desegregation remedy conﬂicts with applicable decisions of this

court which require that remedial components must directly address and relate to the constitutional violation and

be tailored to cure the condition that offends the Constitution?” Pet. for Cert. i.

4

See also Jenkins v. Missouri, 931 F.2d 1273, 1274 (CA8 1991) (“[T]he district court in September 1984 held the

State defendants and the KCMSD liable for intradistrict segregation”); Jenkins v. Missouri, 931 F.2d 470, 475

(CA8 1991) (“In a June 5, 1984, order the district court rejected claims of interdistrict violations”); Jenkins v.

Missouri, 838 F.2d 260, 264 (CA8 1988) (“In this case, the plaintiffs made unsuccessful claims against the State

as well as the suburban, federal, and Kansas defendants for interdistrict relief. They also made successful

intradistrict claims against the State and KCMSD”); Jenkins v. Missouri, 807 F.2d 657, 669–670 (CA8 1986) (en

banc) (“[T]he argument that KCMSD ofﬁcially sanctioned suburban ﬂight looks ﬁrst to KCMSD ‘s violation which

the district court clearly found to be only intradistrict in nature”).

5

See also Green v. School Bd. of New Kent Cty., 391 U.S. 430, 432, 88 S.Ct. 1689, 1691, 20 L.Ed.2d 716 (1968)

(approving a desegregation plan which had a racial composition of 57% black and 43% white); Wright v. Council

of Emporia, 407 U.S. 451, 457, 92 S.Ct. 2196, 2200–2201, 33 L.Ed.2d 51 (1972) (approving a desegregation plan

which had a racial composition of 66% black and 34% white); United States v. Scotland Neck City Bd. of Ed., 407

under the desegregation plan.” App. to Pet. for Cert. A–123. In the context of a proposal to extend funding of the magnet-school program for 10 additional years at a cost of over $500 million, the District Court noted that “[t]he District’s proposals do not include a viable method of ﬁnancing any of the programs.” Id., at A–140.

3

“Whether a federal court order granting salary increases to virtually every employee of a school district—including

non-instructional personnel—as part of a school desegregation remedy conﬂicts with applicable decisions of this

court which require that remedial components must directly address and relate to the constitutional violation and

be tailored to cure the condition that offends the Constitution?” Pet. for Cert. i.

4

See also Jenkins v. Missouri, 931 F.2d 1273, 1274 (CA8 1991) (“[T]he district court in September 1984 held the

State defendants and the KCMSD liable for intradistrict segregation”); Jenkins v. Missouri, 931 F.2d 470, 475

(CA8 1991) (“In a June 5, 1984, order the district court rejected claims of interdistrict violations”); Jenkins v.

Missouri, 838 F.2d 260, 264 (CA8 1988) (“In this case, the plaintiffs made unsuccessful claims against the State

as well as the suburban, federal, and Kansas defendants for interdistrict relief. They also made successful

intradistrict claims against the State and KCMSD”); Jenkins v. Missouri, 807 F.2d 657, 669–670 (CA8 1986) (en

banc) (“[T]he argument that KCMSD ofﬁcially sanctioned suburban ﬂight looks ﬁrst to KCMSD ‘s violation which

the district court clearly found to be only intradistrict in nature”).

5

See also Green v. School Bd. of New Kent Cty., 391 U.S. 430, 432, 88 S.Ct. 1689, 1691, 20 L.Ed.2d 716 (1968)

(approving a desegregation plan which had a racial composition of 57% black and 43% white); Wright v. Council

of Emporia, 407 U.S. 451, 457, 92 S.Ct. 2196, 2200–2201, 33 L.Ed.2d 51 (1972) (approving a desegregation plan

which had a racial composition of 66% black and 34% white); United States v. Scotland Neck City Bd. of Ed., 407

U.S. 484, 491, n. 5, 92 S.Ct. 2214, 2218, n. 5, 33 L.Ed.2d 75 (1972) (approving implicitly a desegregation plan

which had a racial composition of 77% black and 22% white).

6

Prior to 1954, Missouri mandated segregated schools for black and white children. Jenkins v. Missouri, 593

F.Supp. 1485, 1490 (WD Mo.1984). Immediately after the Court’s decision in Brown v. Board of Education, 347

U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), the State’s Attorney General issued an opinion declaring the

provisions that mandated segregation unenforceable. 593 F.Supp., at 1490. In the 1954–1955 school year, 18.9%

of the KCMSD ‘s students were black. 807 F.2d, at 680. The KCMSD became 30% black in the 1961–1962 school

year, 40% black in the 1965–1966 school year, and 60% black in the 1975–1976 school year. Ibid. In 1977, the

KCMSD implemented the 6C desegregation plan in order to ensure that each school within the KCMSD had a

minimum minority enrollment of 30%. Jenkins v. Missouri, 639 F.Supp. 19, 35 (WDMo.1985). Overall enrollment in

KCMSD decreased by 30% from the time that the 6C plan ﬁrst was implemented until 1986. Id., at 36. During the

same time period, white enrollment decreased by 44%. Ibid.

7

Compare n. 4, supra, and Jenkins, 807 F.2d, at 662 (“[N]one of the alleged discriminatory actions committed by

the State or the federal defendants ha[s] caused any signiﬁcant current interdistrict segregation”), with Jenkins v.

Missouri, 855 F.2d 1295, 1302 (CA8 1988) (“These holdings are bolstered by the district court’s ﬁndings that the

preponderance of black students in the district was due to the State and KCMSD ‘s constitutional violations, which

caused white ﬂight”).

8

“During the hearing on the liability issue in this case there was an abundance of evidence that many residents of

the KCMSD left the district and moved to the suburbs because of the district’s efforts to integrate its schools.” 1

App. 239; see also U.S. v. Scotland Neck City Bd. of Ed., 407 U.S., at 491, 92 S.Ct., at 2218 (recognizing that

implementation of a desegregation remedy may result in “white ﬂight”).

9

Justice SOUTER construes the Court of Appeals’ determination to mean that the violations by the State and the

KCMSD did not cause segregation within the limits of each of the SSD ‘s. Post, at 2085. But the Court of Appeals

would not have decided this question at the behest of these plaintiffs—present and future KCMSD students—who

have no standing to challenge segregation within the conﬁnes of the SSD ‘s. Cf. Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–561, 112 S.Ct. 2130, 2136–2137, 119 L.Ed.2d 351 (1992). Ergo, the Court of Appeals meant

exactly what it said: the requirements of Milliken I had not been met because the District Court’s speciﬁc ﬁndings

“negate current signiﬁcant interdistrict effects.” Jenkins, 807 F.2d, at 672.

10

To the extent that the District Court has adopted the quality education program to further the goal of

desegregative attractiveness, that goal is no longer valid. See supra, at 2049–2052.

1

It appears that the low achievement levels were never properly attributed to any discriminatory actions on the part

of the State or of KCMSD. The District Court simply found that the KCMSD ‘s test scores were below national

norms in reading and mathematics. 639 F.Supp., at 25. Without more, these statistics are meaningless.

2

The studies cited in Brown I have received harsh criticism. See, e.g., Yudof, School Desegregation: Legal

Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp. Prob.

57, 70 (Autumn 1978); L. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools

27–28 (1976). Moreover, there simply is no conclusive evidence that desegregation either has sparked a

permanent jump in the achievement scores of black children, or has remedied any psychological feelings of

inferiority black schoolchildren might have had. See, e.g., Bradley & Bradley, The Academic Achievement of Black

Students in Desegregated Schools, 47 Rev. Educational Research 399 (1977); N. St. John, School

Desegregation: Outcomes for Children (1975); Epps, The Impact of School Desegregation on Aspirations, Self–

Concepts and Other Aspects of Personality, 39 Law & Contemp. Prob. 300 (Spring 1975). Contra, Crain &

Mahard, Desegregation and Black Achievement: A Review of the Research, 42 Law & Contemp. Prob. 17

(Summer 1978); Crain & Mahard, The Effect of Research Methodology on Desegregation–Achievement Studies:

10

To the extent that the District Court has adopted the quality education program to further the goal of

desegregative attractiveness, that goal is no longer valid. See supra, at 2049–2052.

1

It appears that the low achievement levels were never properly attributed to any discriminatory actions on the part

of the State or of KCMSD. The District Court simply found that the KCMSD ‘s test scores were below national

norms in reading and mathematics. 639 F.Supp., at 25. Without more, these statistics are meaningless.

2

The studies cited in Brown I have received harsh criticism. See, e.g., Yudof, School Desegregation: Legal

Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp. Prob.

57, 70 (Autumn 1978); L. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools

27–28 (1976). Moreover, there simply is no conclusive evidence that desegregation either has sparked a

permanent jump in the achievement scores of black children, or has remedied any psychological feelings of

inferiority black schoolchildren might have had. See, e.g., Bradley & Bradley, The Academic Achievement of Black

Students in Desegregated Schools, 47 Rev. Educational Research 399 (1977); N. St. John, School

Desegregation: Outcomes for Children (1975); Epps, The Impact of School Desegregation on Aspirations, Self–

Concepts and Other Aspects of Personality, 39 Law & Contemp. Prob. 300 (Spring 1975). Contra, Crain &

Mahard, Desegregation and Black Achievement: A Review of the Research, 42 Law & Contemp. Prob. 17

(Summer 1978); Crain & Mahard, The Effect of Research Methodology on Desegregation–Achievement Studies:

A Meta–Analysis, 88 Am.J. of Sociology 839 (1983). Although the gap between black and white test scores has

narrowed over the past two decades, it appears that this has resulted more from gains in the socioeconomic

status of black families than from desegregation. See Armor, Why is Black Educational Achievement Rising?, 108

The Public Interest 65, 77–79 (Summer 1992).

3

As Blackstone wrote: “[A] set of great and eminent lawyers ... have by degrees erected the system of relief

administered by a court of equity into a regular science, which cannot be attained without study and experience,

any more than the science of law: but from which, when understood, it may be known what remedy a suitor is

entitled to expect, and by what mode of suit, as readily and with as much precision, in a court of equity as in a

court of law.” 3 Blackstone, at 440–441.

4

The Federal Farmer particularly feared the combination of equity and law in the same federal courts: “It is a very

dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity; for if the

law restrain him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may

dictate; we have no precedents in this country, as yet, to regulate the divisions in equity as in Great Britain; equity,

therefore, in the supreme court for many years will be mere discretion.” Federal Farmer No. 3, Oct. 10, 1787, in 2

Storing 244. In such a system, the Anti–Federalist writer concluded, there would not be “a spark of freedom” to be

found. Ibid.

5

Certain aspects of this desegregation plan—for example, compensatory educational programs and orders that the

State pay for half of the costs—come perilously close to abrogating the State’s Eleventh Amendment immunity

from federal money damages awards. See Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362–63, 39

L.Ed.2d 662 (1974) ( “[A] federal court’s remedial power ... may not include a retroactive award which requires the

payment of funds from the state treasury”). Although we held in Milliken II, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.

2d 745 (1977), that such remedies did not run afoul of the Eleventh Amendment, id., at 290, 97 S.Ct., at 2762, it is

difﬁcult to see how they constitute purely prospective relief rather than retrospective compensation. See P. Bator,

D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1191–1192

(3d ed. 1988). Of course, the state treasury inevitably must fund a State’s compliance with injunctions

commanding prospective relief, see Edelman, supra, at 668, 94 S.Ct., at 1358, but that does not require a State

to supply money to comply with orders that have a backward-looking, compensatory purpose.

6

First, the District Court set out to achieve some unspeciﬁed levels of racial balance in the KCMSD schools and to

raise the test scores of the school districts as a whole. 639 F.Supp. 19 24, 38 (WDMo.1985). In order to achieve

that goal, the court ordered quality education programs to address the “system wide reduction in student

achievement” caused by segregation, even though the court never speciﬁed how or to what extent the dual

system had actually done so. Id., at 46–51. After the State had spent $220 million and KCMSD had achieved a

AAA rating, see ante, at 2043, the District Court decided that even further measures were needed. In 1986, it

ordered a massive magnet school and capital improvement plan to attract whites into KCMSD. 1 App. 130–193.

In 1987, the District Court decided that KCMSD needed better instructional staff and ordered salary assistance for

teachers. Ante, at 2044. In 1992, the District Court found that KCMSD was having trouble attracting faculty and

staff, and ordered a round of salary increases for virtually all employees. Ante, at 2045. Every year the District

Court holds a proceeding to review budget proposals and educational policies for KCMSD, and it has formed a

“desegregation monitoring committee” to assess the implementation of its decrees. One need only review the

District Court’s ﬁrst remedial order in 1984 to comprehend the level of detail with which it has made decisions

concerning construction, facilities, stafﬁng, and educational policy. 639 F.Supp. 19; see also Missouri v. Jenkins,

495 U.S. 33, 60–61, 110 S.Ct. 1651, 1667–1668, 109 L.Ed.2d 31 (1990) (KENNEDY, J., concurring in part and

concurring in judgment).

1

In related litigation about the schools of St. Louis, the Eighth Circuit has noted that “[b]efore the Civil War,

Missouri prohibited the creation of schools to teach reading and writing to blacks. Act of February 16, 1847, § 1,

1847 Mo. Laws 103. State-mandated segregation was ﬁrst imposed in the 1865 Constitution, Article IX § 2. It was

reincorporated in the Missouri Constitution of 1945: Article IX speciﬁcally provided that separate schools were to

be maintained for ‘white and colored children.’ In 1952, the Missouri Supreme Court upheld the constitutionality of

teachers. Ante, at 2044. In 1992, the District Court found that KCMSD was having trouble attracting faculty and staff, and ordered a round of salary increases for virtually all employees. Ante, at 2045. Every year the District Court holds a proceeding to review budget proposals and educational policies for KCMSD, and it has formed a “desegregation monitoring committee” to assess the implementation of its decrees. One need only review the District Court’s ﬁrst remedial order in 1984 to comprehend the level of detail with which it has made decisions concerning construction, facilities, stafﬁng, and educational policy. 639 F.Supp. 19; see also Missouri v. Jenkins, 495 U.S. 33, 60–61, 110 S.Ct. 1651, 1667–1668, 109 L.Ed.2d 31 (1990) (KENNEDY, J., concurring in part and concurring in judgment).

1

In related litigation about the schools of St. Louis, the Eighth Circuit has noted that “[b]efore the Civil War,

Missouri prohibited the creation of schools to teach reading and writing to blacks. Act of February 16, 1847, § 1,

1847 Mo. Laws 103. State-mandated segregation was ﬁrst imposed in the 1865 Constitution, Article IX § 2. It was

reincorporated in the Missouri Constitution of 1945: Article IX speciﬁcally provided that separate schools were to

be maintained for ‘white and colored children.’ In 1952, the Missouri Supreme Court upheld the constitutionality of

Article IX under the United States Constitution. Article IX was not repealed until 1976.” Liddell v. Missouri, 731 F.

2d 1294, 1305–1306 (CA8 1984) (case citations and footnote omitted).

2

Justice O’CONNOR suggests that I am saying something inconsistent with the position I took in Bray v.

Alexandria Women’s Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993), see ante, at 2057, but

her claim rests on a misunderstanding of my position in that case. I did not think that in Bray we could reach the

question whether respondents’ claims fell within the “prevention clause” of 42 U.S.C. § 1985(3) simply because

the question “ ‘was briefed, albeit sparingly, by the parties prior to the ﬁrst oral argument.’ ” Ante, at 2057. Rather,

I said that “[t]he applicability of the prevention clause is fairly included within the questions presented, especially

as restated by respondents....” Bray, supra, at 290, 113 S.Ct., at 770. (SOUTER, J., concurring in judgment in part

and dissenting in part). Thus the question was literally before us (as Justice O’CONNOR believes the

foundational question is before us under the second of the State’s questions). What is not debatable is that Bray

was not preceded by prior litigation indicating we would not consider the “prevention clause” issue, whereas this

case was preceded by a refusal to take the very foundational issue that Justice O’CONNOR argues is within the

literal terms of the second question focusing on salaries. See supra, at 2075–2076. I obviously thought the Court

was wrong to reject supplemental brieﬁng on the prevention clause, but that rejection was a far cry from refusing

to take the issue.

3

There is no claim of anything unreasonable in the salary increases merely because the District Court has ordered

them, whereas they might otherwise have been set by collective bargaining. For that matter, the Court of Appeals

observed that the District Court has not replaced collective bargaining in the KCMSD with a rubber stamping of

union requests, but rather has “juridically pruned applications of funding that have been presented to it,” 13 F.3d,

at 1174, ordering salary increases that have been far smaller than those requested by the union. See, e.g., App.

to Pet. for Cert. A–102, A–104 to A–106 (Order of June 30, 1993).

4

This was not the only, or even the principal, purpose of the magnet schools. The District Court found that magnet

schools would assist in remedying the deﬁciencies in student achievement in the KCMSD, see supra, at 2074–

2075. Moreover, while the Court repeatedly describes the magnet school program as looking beyond the

boundaries of the district, the program is primarily aimed not at drawing back white children whose parents have

moved to another district, but rather at drawing back children who attend private schools while living within the

geographical conﬁnes of the KCMSD, whose population remains majority white, Jenkins v. Missouri, 855 F.2d

1295, 1302–1303 (CA8 1988). See 1 App. 132 (Order of Nov. 12, 1986) (“Most importantly, the Court believes

that the proposed magnet plan is so attractive that it would draw non-minority students from the private schools

who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs”). As

such, a substantial impetus for the District Court’s remedy does not consider the world beyond district boundaries

at all, and much of the Court’s opinion is of little signiﬁcance to the case before it.

5

Justice O’CONNOR also rests on supposition. See ante, at 2061 (“In this case, it may be the ‘myriad factors of

human existence,’ that have prompted the white exodus from the KCMSD ...”) (citation omitted).

6

The Court states that the Court of Appeals would not have decided the question whether the State and the

KCMSD ‘s violations produced segregative effects in the SSD’s, as respondents lacked standing to raise the

issue. Ante, at 2053, n. 9. This statement eludes explanation. In Milliken I, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.

2d 1069 (1974), we held that before a district court may order the mandatory interdistrict reassignment of

students throughout a metropolitan area, it must ﬁrst ﬁnd either that multiple school districts participated in the

unconstitutional segregation of students, or that the violation within a single school district “produce [d] ...

signiﬁcant segregative effect[s]” in the others. Id., at 744–745, 94 S.Ct., at 3127. See ante, at 2051 ante, at 2057,

2058 (O’CONNOR, J., concurring); see also infra, at 2088–2089. In the earlier stages of this litigation, the Jenkins

respondents sought the mandatory reassignment of students throughout the Kansas City metropolitan area, and

the District Court, 3 App. 721–820 (Order of June 5, 1984), and the Court of Appeals, Jenkins, 807 F.2d, at 665–

666, 672, rejected such relief on the grounds that the requirements of Milliken I had not been satisﬁed. The Court

is now saying that respondents lacked standing to raise the issue of interdistrict segregative effects, and that the

District Court and the Court of Appeals lacked the authority to reach the issue, even though that is precisely what

was required of them under Milliken I.

7

Thus, the Court errs in suggesting that the District Court has sought to do here indirectly what we held the District

Court could not do directly in Milliken I. Ante, at 2052. The District Court here has not attempted, directly or

indirectly, to impose any remedial measures on school districts innocent of a constitutional violation or free from

its segregative effects.

that the proposed magnet plan is so attractive that it would draw non-minority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs”). As such, a substantial impetus for the District Court’s remedy does not consider the world beyond district boundaries at all, and much of the Court’s opinion is of little signiﬁcance to the case before it.

5

Justice O’CONNOR also rests on supposition. See ante, at 2061 (“In this case, it may be the ‘myriad factors of

human existence,’ that have prompted the white exodus from the KCMSD ...”) (citation omitted).

6

The Court states that the Court of Appeals would not have decided the question whether the State and the

KCMSD ‘s violations produced segregative effects in the SSD’s, as respondents lacked standing to raise the

issue. Ante, at 2053, n. 9. This statement eludes explanation. In Milliken I, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.

2d 1069 (1974), we held that before a district court may order the mandatory interdistrict reassignment of

students throughout a metropolitan area, it must ﬁrst ﬁnd either that multiple school districts participated in the

unconstitutional segregation of students, or that the violation within a single school district “produce [d] ...

signiﬁcant segregative effect[s]” in the others. Id., at 744–745, 94 S.Ct., at 3127. See ante, at 2051 ante, at 2057,

2058 (O’CONNOR, J., concurring); see also infra, at 2088–2089. In the earlier stages of this litigation, the Jenkins

respondents sought the mandatory reassignment of students throughout the Kansas City metropolitan area, and

the District Court, 3 App. 721–820 (Order of June 5, 1984), and the Court of Appeals, Jenkins, 807 F.2d, at 665–

666, 672, rejected such relief on the grounds that the requirements of Milliken I had not been satisﬁed. The Court

is now saying that respondents lacked standing to raise the issue of interdistrict segregative effects, and that the

District Court and the Court of Appeals lacked the authority to reach the issue, even though that is precisely what

was required of them under Milliken I.

7

Thus, the Court errs in suggesting that the District Court has sought to do here indirectly what we held the District

Court could not do directly in Milliken I. Ante, at 2052. The District Court here has not attempted, directly or

indirectly, to impose any remedial measures on school districts innocent of a constitutional violation or free from

its segregative effects.

8

Justice O’CONNOR thinks I place undue emphasis on the Gautreaux Court’s footnote, turning it into an “island,

entire of itself ...,” ante, at 2058, but it cannot be shrunk to the dimension necessary to support the majority’s

result. According to Justice O’CONNOR, Gautreaux holds that “territorial transgression” of any kind “is

permissible only upon a showing that [an] intradistrict constitutional violation [has] produced signiﬁcant interdistrict

segregative effects....” Ante, at 2058. She ﬁnds Gautreaux signiﬁcant only in reversing the Court of Appeals’s

ﬁnding that such effects had been established on the record of that case, and she understands that the Court

remanded the case to the District Court with the understanding that it would order relief going beyond the city of

Chicago’s boundaries only if it found signiﬁcant interdistrict segregative effects to exist. Ante, at 2058.

But this is an implausible reading. Justice O’CONNOR is correct that in Gautreaux we reiterated the importance

of Milliken I’s requirement of signiﬁcant interdistrict segregative effects, but we did so only in connection with

the type of relief at issue in Milliken I, that involving “direct federal judicial interference with local governmental

entities” not shown to have violated the Constitution. Gautreaux, 425 U.S., at 294, 96 S.Ct., at 1545; see

generally id., at 292–298, 96 S.Ct., at 1543–1547. As the language I have quoted above demonstrates, we

made it very clear in Gautreaux that the District Court could order relief going beyond the boundaries of the city

of Chicago without any ﬁnding of such effects, because that relief would impose no obligation on governmental

units innocent of a constitutional violation and free of its effects. Indeed, when we summarized our holding at

the conclusion of our opinion, we made the point yet again. “In sum, there is no basis for the petitioner’s claim

that court-ordered metropolitan area relief in this case would be impermissible as a matter of law under the

Milliken decision. In contrast to the desegregation order in that case, a metropolitan area relief order directed to

HUD would not consolidate or in any way restructure local governmental units.” Id., at 305–306, 96 S.Ct., at

1550–1551. While Justice O’CONNOR, ante, at 2058 (and the Court, ante, at 2053) seeks to make much of the

fact that we did not order metropolitan relief ourselves in Gautreaux, but rather remanded the case to the

District Court, we did so because we recognized that the question of what relief to order was a matter for the

District Court in the ﬁrst instance. “The nature and scope of the remedial decree to be entered on remand is a

matter for the District Court in the exercise of its equitable discretion, after affording the parties an opportunity

to present their views.” 425 U.S., at 306, 96 S.Ct., at 1550. Nowhere did we state that before the District Court

could order metropolitan area relief, it would ﬁrst have to make ﬁndings of signiﬁcant segregative effects

extending beyond the City of Chicago’s borders.

 
 73 F.3d 201 United States Court of Appeals,
Eighth Circuit.
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, Plaintiffs–Appellees, 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; 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; Sharon M. Williams, Member of the Missouri State Board of Education; Betty Preston, Member of
the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education, Defendants–Appellants,
School District of Kansas City; Walter L. Marks, Superintendent thereof; Paul V. Arena, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors;
Terry Hamilton–Poore, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of Directors; Carol A. Shank, Member of the Board of Directors; John W. Still, Member of the Board of Directors, Defendants–Appellees.
No. 95–1829. |
Submitted Sept. 12, 1995. |
Decided Jan. 8, 1996. |
Rehearing and Suggestion for Rehearing En Banc Denied March 4, 1996.*
Synopsis Black students from urban school district brought suit alleging they were denied admission into school district because of race. The United States District Court for the Western District of Missouri, Joseph E. Stevens, Jr., J., granted summary judgment for state and schools. Students appealed. The Court of Appeals, 904 F.2d 415, reversed and remanded. On remand, the District Court, Russell G. Clark, J., denied approval of proposed settlement plans, and appeals were taken. The Court of Appeals, 981 F.2d 1009, remanded. On remand, the District Court approved plan involving interactive electronic communication between students. Appeal was taken. The Court of Appeals, 38 F.3d 960, rejected proposal for interactive electronic communication. On remand, attorneys for plaintiff class sought fees for opposing program. The District Court awarded fees. State appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) attorneys were entitled to fees, and (2) state’s opposition to the interactive electronic communication program did not exempt it from liability for fees.
Affirmed.
Attorneys and Law Firms
*202 Bart A. Matanic, Assistant Attorney General, argued (John R. Munich, Chief Counsel for Litigation, and Michael J. Fields, Assistant Attorney General, on brief), for appellant.
Arthur A. Benson of Kansas City, Missouri, argued (Dianne E. Moritz of Kansas City, Missouri, on brief), for appellee.
Before McMILLIAN, HEANEY and JOHN R. GIBSON, Circuit Judges.

Opinion
JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from an award of attorneys’ fees to attorneys for the Jenkins class for representing the class in opposing the adoption of the ShareNet program as part of a voluntary interdistrict transfer plan. The district court approved the ShareNet program, but we reversed in Jenkins v. Missouri, 38 F.3d 960 (8th Cir.1994) (Jenkins XII ). The State argues that the Jenkins class attorneys are not entitled to fees because ShareNet was not proposed as part of the remedy, and because the State, as well as the Jenkins class, opposed ShareNet. The State also urges us to reconsider our opinion in Jenkins v. Missouri, 967 F.2d 1248 (8th Cir.1992) (Jenkins Fees IV ). We affirm the judgment of the district court.1
The Desegregation Monitoring Committee (DMC) proposed a program in which students in suburban districts would communicate by electronic mail or fax with students in the Kansas City, Missouri School District (KCMSD). The district court approved the plan as an initial positive step toward establishing a voluntary interdistrict transfer plan. The Jenkins class, the KCMSD, and the State all appealed from entry of the order. We held in Jenkins XII, 38 F.3d at 965, that the ShareNet plan lay outside the limited area available to the district court in crafting a desegregation remedy under Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II ).
The Jenkins class then sought fees and expenses from the State of Missouri for its role in opposing the ShareNet program. The district court concluded that the class incurred the attorneys’ fees in defending the desegregation remedy. Order of February 28, 1995, slip op. at 2. The court rejected the State’s arguments that the class was not a prevailing party because it did not obtain a “benefit from victory which was the object of filing the lawsuit.” Id. at 1–2. The court also held that whether the State opposed the ShareNet program was not a relevant factor in deciding whether to award fees under Jenkins Fees IV. Id. at 2. The court awarded $14,369.06 in attorneys’ fees and expenses. The State appeals.
I.
[1] The State first argues that the Jenkins class’s fees were not incurred “in defense of the remedy.” This argument is based on language in our opinion in Jenkins Fees IV. There, we permitted the award of fees to the Jenkins class against the State for *203 defending the Jenkins remedy against attack by intervenors. At the same time, we reversed the award of fees to the Jenkins class against the State for defending against a collateral attack in a separate lawsuit proposing an alternative, supplemental remedy (the Rivarde case). Jenkins Fees IV, 967 F.2d at 1252. The State argues that the ShareNet plan was like the alternative remedy for which we reversed the fee award in Jenkins Fees IV, and that therefore, we must reverse the fee award in this case.
There are several flaws in the State’s reasoning. First, the State ignores the principal holding about the Rivarde case in Jenkins Fees IV. The primary basis for denying the fee award for Rivarde was simply that Rivarde was a separate lawsuit and the Supreme Court had disapproved of awarding fees in one case for services rendered in another. We said:
We believe that this question must be decided on the basis of [Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989) ]. Part of the Zipes majority’s reasoning was that plaintiffs should not be awarded fees against intervenors, since they would not be entitled to fees had the intervenors chosen to bring suit in a collateral attack. 491 U.S. at 762 [109 S.Ct. at 2737]. Rivarde was, of course, a collateral attack, and therefore Zipes would seem to forbid an award of fees in Jenkins for services rendered in Rivarde.
967 F.2d at 1252. We belabor the obvious to say that the ShareNet litigation occurred as part of the Jenkins case. Therefore, it falls on the compensable side of the line we drew in Jenkins Fees IV.
This case differs critically from Rivarde in that it is not a collateral suit and does not involve fees attributable to an intervention. To the contrary, ShareNet was proposed by the Desegregation Monitoring Committee, which is not an

intervenor or a stranger to the Jenkins suit, but rather an arm of the court. See Jenkins v. Missouri, 890 F.2d 65, 67–68 (8th Cir.1989) (Jenkins III ). The district court instituted the DMC to help monitor the remedy. We approved the creation of the DMC. See id. The DMC suggested the ShareNet program in its official capacity. As we stated in Jenkins Fees IV, Zipes only considered whether it was proper to award fees against an intervenor; Zipes does not address the question of whether a defendant can be held liable for fees incurred in litigation against an intervenor. 967 F.2d at 1250. Nor does Zipes consider the present situation, where the fees were incurred due to suggestions made by an arm of the court. Because the fees resulted from a suggestion of the DMC, this case presents a stronger case for fee-shifting than did the award of fees for intervenor litigation which we affirmed in Jenkins Fees IV.
The second flaw in the State’s reasoning is its erroneous assertion that the defeat of the ShareNet program did not aid the Jenkins remedy. In making this argument the State relies on language from Jenkins Fees IV that was phrased as a postscript to the primary holding:
Further, in Rivarde the thrust of the litigation was inadequacy of the remedy and the proposal of an alternative remedy in addition to that in Jenkins. In issues as close as those before us, this also militates against awarding fees incurred in Rivarde.
967 F.2d at 1252. We did not state that the distinction between defending against an attack on the remedy and defending against a proposal of a supplemental remedy would, alone, have decided the Jenkins Fees IV case. The State wrongly concludes that the Jenkins Fees IV case turned on the distinction between defending against proposals that would undo the remedy and those that would supplement it.
Even indulging the State’s erroneous assumption, this case involves a program that threatened the integrity of the remedy, as we held in Jenkins XII:
There was testimony that the [ShareNet] program would more likely have a negative effect on desegregation, that it was incompatible with certain KCMSD magnet *204 themes, and that it might compete with the district’s computer magnets for suburban transfer students. In addition, there was testimony that the requirement of two hour blocks of time set aside for utilization of the program would have a deleterious influence on not only the magnet programs in many of the schools, but the other educational programs in KCMSD.
38 F.3d at 965. Therefore, the Jenkins class was acting in defense of the remedy when it incurred fees warding off the ShareNet program. We reject the State’s arguments based on Jenkins Fees IV.
II.
[2] The State argues that the district court could not award the Jenkins class fees against the State for opposing the ShareNet plan, since the State as well as the Jenkins class opposed the plan. The State cites United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032, 1045–46 (6th Cir.1994); Bigby v. City of Chicago, 927 F.2d 1426, 1429 (7th Cir. 1991); Reeves v. Harrell, 791 F.2d 1481, 1484 (11th Cir.1986), cert. denied, 479 U.S. 1033, 107 S.Ct. 880, 93 L.Ed.2d 834 (1987); Action on Smoking and Health v. CAB, 724 F.2d 211, 216 (D.C.Cir.1984); and Firebird Society v. Board of Fire Commissioners, 556 F.2d 642, 644 (2d Cir.1977) (per curiam). If these cases hold that a court can only award attorneys’ fees against a defendant if the fees were incurred directly litigating against the defendant, they conflict with Jenkins Fees IV. However, since none of these cases involve school desegregation litigation, they are distinguishable from Jenkins Fees IV, which depends on the special nature of school desegregation cases. See 967 F.2d at 1251. The reasons we gave for permitting recovery in Jenkins Fees IV still exist here, despite the fact that the State joined the Jenkins class in opposing ShareNet.2 In Jenkins Fees IV we stressed that in school desegregation cases there is no money award from which the plaintiffs can pay extra fee expenses.3 Moreover, interventions and the attendant expenses are practically unavoidable in litigation proceeding over long periods of time and affecting so many people. Therefore, attorneys’ fees must be available to permit school desegregation plaintiffs to defend the remedy, or else prevailing on the merits against the original defendants would become a meaningless victory for plaintiffs who cannot afford to defend the remedy against later intervenors. We held that it is equitable to require the State, as a constitutional *205 violator, to pay the fees necessary to defend the remedy.

Therefore, the State’s opposition to ShareNet does not exempt it from liability for fees under the reasoning of Jenkins Fees IV.

III.
The State argues that, based on cases from other circuits,4 we should overrule Jenkins Fees IV. These cases all consider whether defendants can be made to pay plaintiffs’ fees incurred in litigating against intervenors; those cases are not relevant here, where the litigation did not involve an intervenor, but the DMC, an arm of the court.
We further observe that none of the cases relied upon by the State involved defending or monitoring implementation of a desegregation remedy. We thus do not see these cases as contrary appellate authority to our decision in Jenkins Fees IV.
[3] [4] Finally, Jenkins Fees IV, as a decision of a panel, is the law of the circuit and binds other panels. It may only be reconsidered and overruled by the court en banc. Even though the same three judges hearing this case were the panel in Jenkins Fees IV, we are not at liberty to refuse to follow our earlier case, and the State has not advanced any argument of sufficient merit to convince us to suggest rehearing en banc.
We affirm the judgment of the district court.

All Citations 73 F.3d 201, 106 Ed. Law Rep. 80

Footnotes

*

Wollman, Beam, and Morris Sheppard Arnold, Circuit Judges, would grant the suggestion for rehearing en banc.

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

The State and the Jenkins class both claim that they took the laboring oar in opposing ShareNet. We need not

resolve that question, since it does not bear directly on any issue relevant to our decision.

3

We said in Jenkins Fees IV:

[G]iven the special nature of desegregation cases, withholding from the plaintiffs the means for paying their

attorneys could be devastating to the national policy of enforcing civil rights laws through the use of private

attorneys general. School desegregation cases can continue for years and affect nearly everyone in the

community in one way or another. Various interventions and collateral attacks are not only predictable, but

inevitable in litigation affecting so many people in so many different capacities. Furthermore, a school

desegregation case differs from much other litigation in that the main action does not result in a monetary

recovery that might enable plaintiffs to ﬁnance a defense against collateral attacks on their judgments. The

only monetary award received by the plaintiffs in a desegregation case is simply payment of their attorneys’

fees, and it is inequitable to require the attorney for the class to defend against collateral attacks on the

award. Such service is just as much a part of the representation of the plaintiff class as obtaining relief in the

ﬁrst instance. To deny plaintiffs fees in a desegregation case would be to deny them the means to respond to

attacks on the remedy. Monitoring implementation of the remedy is a crucial part of the plaintiffs’ function in

these cases: “Services devoted to reasonable monitoring of the court’s decrees, both to insure full

compliance and to ensure that the plan is indeed working to desegregate the school system, are

compensable services. They are essential to the long-term success of the plaintiff’s suit.” Northcross v. Board

of Educ., 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862

(1980).

[Moreover,] the State, unlike the intervenor in Zipes, is a constitutional violator, and not entitled to the

solicitude Zipes showed the “blameless” intervenor. See 491 U.S. at 761, 109 S.Ct. at 2737.

967 F.2d at 1251.

4

These include the cases we discuss at page 204, supra, and Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d

169, 177 (4th Cir.1994), which disagrees with our reading of Zipes.

Wollman, Beam, and Morris Sheppard Arnold, Circuit Judges, would grant the suggestion for rehearing en banc.

1

The Honorable Russell G. Clark, United States District Judge for the Western District of Missouri.

2

The State and the Jenkins class both claim that they took the laboring oar in opposing ShareNet. We need not

resolve that question, since it does not bear directly on any issue relevant to our decision.

3

We said in Jenkins Fees IV:

[G]iven the special nature of desegregation cases, withholding from the plaintiffs the means for paying their

attorneys could be devastating to the national policy of enforcing civil rights laws through the use of private

attorneys general. School desegregation cases can continue for years and affect nearly everyone in the

community in one way or another. Various interventions and collateral attacks are not only predictable, but

inevitable in litigation affecting so many people in so many different capacities. Furthermore, a school

desegregation case differs from much other litigation in that the main action does not result in a monetary

recovery that might enable plaintiffs to ﬁnance a defense against collateral attacks on their judgments. The

only monetary award received by the plaintiffs in a desegregation case is simply payment of their attorneys’

fees, and it is inequitable to require the attorney for the class to defend against collateral attacks on the

award. Such service is just as much a part of the representation of the plaintiff class as obtaining relief in the

ﬁrst instance. To deny plaintiffs fees in a desegregation case would be to deny them the means to respond to

attacks on the remedy. Monitoring implementation of the remedy is a crucial part of the plaintiffs’ function in

these cases: “Services devoted to reasonable monitoring of the court’s decrees, both to insure full

compliance and to ensure that the plan is indeed working to desegregate the school system, are

compensable services. They are essential to the long-term success of the plaintiff’s suit.” Northcross v. Board

of Educ., 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862

(1980).

[Moreover,] the State, unlike the intervenor in Zipes, is a constitutional violator, and not entitled to the

solicitude Zipes showed the “blameless” intervenor. See 491 U.S. at 761, 109 S.Ct. at 2737.

967 F.2d at 1251.

4

These include the cases we discuss at page 204, supra, and Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d

169, 177 (4th Cir.1994), which disagrees with our reading of Zipes.

 
 78 F.3d 1270 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess; Plaintiffs—Appellees, American Federation of Teachers, Local 691, Intervenor—Appellee.
Hashina Webster, by her parents and next friends Elaine and Ajamu Webster; Nia Webster, by her parents and next friends Elaine and Ajamu Webster; Alley Pope, by her parent and next friend Carol Coe; Kimberly Beasley,
by her parents and next friends Arthur and Patricia Beasley; Arthur Beasley, by his parents and next friends Arthur and Patricia Beasley; Felicia Rhodes, by her parents and next friends Charles and Elizabeth Rhodes; Christina Gravley, by her parent and next friend Mona Hicks; Shara Kennedy, by her parent and next friend Ernestine Kennedy; Cassandra Young, by her parent and next friend Bea Sanders; Ajamu Webster; Elaine Webster; Carol Coe; Patricia Beasley; Mona Hicks; Ernestine Kennedy; Bea Sanders, as concerned parents,
Intervenor—Plaintiffs—Appellants 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; 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; Betty Preston, Member of the Missouri State Board of Education; Sharon M. Williams, Member of
the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; School District of Kansas City; Paul
V. Arena, Member of the Board of Directors; Walter L. Marks, Superintendent thereof; Dr. Julia H. Hill, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Terry Hamilton–Poore, Member of the Board of Directors; Carol A. Shank, Member of the
Board of Directors; John W. Still, Member of the Board of Directors, Defendants—Appellees.
No. 95–1823. |
Submitted Sept. 12, 1995. |
Decided March 6, 1996. |
Rehearing and Suggestion for Rehearing En Banc Denied April 24, 1996.
Synopsis Students and their parents sought to intervene in school desegregation suit. The United States District Court for the Western District of Missouri, Russell G. Clark, J., denied intervention, and appeal was taken. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) record did not support proposed intervenors’ contention that district court applied improper legal standard in denying intervention on ground that there was no impairment to interests of intervenors, and (2) evidence supported district court’s implicit finding that intervenors’ interests were adequately represented by plaintiff class.
Affirmed.
*1272 Appeal from the United States District Court for the Western District of Missouri; Russell Clark, Judge.
Attorneys and Law Firms
Clinton Adams, Jr. of Kansas City, MO, argued (Edward L. Pendleton and Holly Winkler of Kansas City, on the brief), for appellants.

Arthur A. Benson of Kansas City, MO, argued (John R. Munich, Michael Fields, and Bart Matanic, Asst. Attys. Gen., Jefferson City, MO, on the brief), for appellees.
Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
Hashina Webster and her proposed co-intervenors1 appeal from an order of the district court2 denying their motion to intervene as a matter of right in the ongoing Kansas City, Missouri School District desegregation litigation. The Webster group argues that the district court correctly determined that its motion to intervene was timely, but that the court erred in holding the group already had adequate means to protect its interests without intervention. We affirm the order of the district court.
The Kansas City school desegregation litigation began in 1977 when the KCMSD, the School Board, and the children of four board members filed suit. The district court converted the suit into a class action, making a plaintiff class of all present and future students of the KCMSD. We affirmed the district court’s finding of constitutional violations by the KCMSD and the State of Missouri in Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). We later considered the district court’s remedy for these constitutional violations in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed. 2d 31 (1990). In all, this court has heard over twenty appeals, including twelve dealing with the remedy,3 four dealing with voluntary *1273 interdistrict transfer plans,4 and four dealing with attorneys’ fees.5 The Supreme Court has heard this case three times. Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995); Missouri v. Jenkins, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990); Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).
The Webster group sought to intervene in this litigation on December 1, 1994. The Webster group is comprised of African– American children, who are or might be in the future students in the KCMSD, and their parents. In its motion to intervene, the Webster group stated that the KCMSD was failing to eliminate the segregated school system in Kansas City and contributing to low achievement and a general attitude of inferiority among African–American students. The Webster group also asserted that the plaintiff Jenkins class no longer adequately represented the interests of African–American students, even though all African–American students are members of the Jenkins class. Consequently, the Webster group wanted to intervene to represent the interests of African–American students.
The district court denied the Webster group’s motion to intervene. The court concluded that the Webster group timely filed its motion, but denied the motion to intervene as a matter of right because there were sufficient avenues open for the group to protect its interests without intervention. Since the children in the Webster group were already members of the Jenkins class, the court encouraged the members of the Webster group to express their concerns to the attorneys for the Jenkins class. The court pointed out that the Webster group could communicate its views to the Desegregation Monitoring Committee, which in turn could present them to the court. The court encouraged the Webster group to file amicus curiae briefs and seek permission to testify on any issue before the court. Finally, the court denied the group’s motion for permissive intervention. See Fed.R.Civ.P. 24(b). The Webster group now appeals only the denial of its motion to intervene as a matter of right. See Fed.R.Civ.P. 24(a).
I.
The Jenkins class and the State of Missouri oppose the Webster group’s motion to intervene and argue that the district court erred in determining the motion was timely.
[1] [2] A district court should consider all of the circumstances when determining the timeliness of a motion to intervene. NAACP v. New York, 413 U.S. 345, 365–66, 93 S.Ct. 2591, 2602–03, 37 L.Ed.2d 648 (1973). In looking at all of the

circumstances, the court should pay particular attention to: (1) how far the proceedings have progressed; (2) the proposed intervenor’s reason for delay in seeking intervention; and (3) the possible *1274 prejudice to the parties already in the proceedings if the court allows intervention. Nevilles v. EEOC, 511 F.2d 303, 305 (8th Cir.1975) (per curiam). We review the district court’s timeliness determinations for abuse of discretion. NAACP v. New York, 413 U.S. at 366, 93 S.Ct. at 2603.
The Webster group argues that its motion is timely because its members only recently became aware of the need to protect the interests of African–American students. The group states that it was not until the middle of 1994 that it became obvious the Jenkins class was no longer protecting the interests of its African–American members. In April 1994, the Jenkins class supported the construction of a new magnet school, despite the need to renovate traditional schools. The Webster group contends that renovation of the traditional schools would better serve African–American students because these schools are dilapidated and predominantly populated by minority students. In the late summer of 1994, the Jenkins class argued against increasing the number of minority students in the KCMSD’s magnet schools. The Webster group contends that the magnet schools are the better schools in the KCMSD and increased minority enrollment in these schools would benefit African– American students. The Webster group argues that these actions by the Jenkins class show that the class is no longer representing the interests of African–American students. Until these actions occurred, the Webster group argues that it had no reason to intervene.
The Jenkins class and the State argue that the Webster group’s motion to intervene is not timely because members of the group were aware of the issues raised in their motion to intervene long before they filed their motion. The Jenkins class points out that Ajamu Webster testified on February 22, 1993, about the relationship between magnet schools and traditional schools within the KCMSD. Webster testified that there was an undue emphasis on magnet schools over traditional schools and that magnet schools overemphasized the importance of white students to the detriment of African–American students.
Webster also described the Coalition for Education and Economic Justice, which included two members of the Webster group and one of its attorneys. The Coalition proposed a program to change the funding and teaching of the seventeen traditional schools and presented the program to the Desegregation Monitoring Committee. The Coalition had several discussions with the KCMSD administration and the Board of Education, and its relationship with them has been less than friendly on occasion.
The Jenkins class points out that four members of the Webster group have been members of school advisory committees, and that others have testified before the Desegregation Monitoring Committee and appeared before the KCMSD board. The State points out that from 1987 to 1990 the district court established the priorities for the improvement of the traditional schools.
Considering all of these factors, it is evident that the adult members of the Webster group knew of the issues they presented in their motion to intervene well before they filed their motion. This record demonstrates that the timeliness of the Webster group’s motion to intervene is a close and troublesome question. We dispose of this case on the basis of the district court’s reasoning which makes it unnecessary for us to decide the timeliness issue. If any group seeks intervention in the future, the district court should carefully consider the timeliness of the intervention efforts.
II.
The Webster group argues that it is entitled to intervene as a matter of right under Federal Rule of Civil Procedure 24(a)(2). Under Rule 24(a)(2), intervention shall be permitted if: (1) the proposed intervenor claims an interest relating to the property or transaction which is the subject of the action; (2) the disposition of the action may as a practical matter impair or impede the proposed intervenor’s ability to protect that interest; and (3) no existing party adequately represents the proposed intervenor’s interest.
*1275 [3] [4] The district court held that the Webster group was not entitled to intervene as a matter of right because the “intervenors will not be impaired or impeded in their ability to protect” their interests during the disposition of the case. The Webster group argues that the district court applied an improper legal standard in so ruling, as all that it must demonstrate is that the action “may as a practical matter” impair its interests. Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 738 F.2d 82, 84 (8th Cir.1984) (per curiam). We reject this argument.
The district court’s discussion of this issue does not demonstrate that the court imposed a heavier burden on the Webster

group than the rule requires. In KPERS v. Reimer & Koger Assocs., 60 F.3d 1304 (8th Cir.1995), decided after the briefs were filed in this case, we made clear that a proposed intervenor does not bear the burden of establishing that its interests will actually be impaired by the disposition of the case. Id. at 1307–08. In KPERS, the district court imposed such a burden, saying that the proposed intervenor’s stare decisis argument did not “necessitate a finding” that the intervening interests “will be practically impaired but for its involvement,” and that it was unlikely that the proposed intervenor “would be adversely affected” in a later proceeding by rulings in the KPERS case. Id. at 1306. We held that such a standard conflicted with the language of Rule 24(a)(2) and holdings of this court. Id. at 1308.
In contrast, the district court in this case clearly stated the proper standard, and then found that the “proposed intervenors will not be impaired or impeded in their ability to protect” their interest. This finding rules out the possibility that the Webster group could show that its interests may, as a practical matter, be impaired.
This is not a case where the impairment of the interest of the applicant is conceded, assumed, or generally accepted. See Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir.1987); Morgan v. McDonough, 726 F.2d 11, 13 (1st Cir.1984); United States v. Board of Sch. Comm’rs, 466 F.2d 573, 575 (7th Cir.1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). The district court squarely faced those issues and found that there was no impairment of the interests of the Webster group because of the other avenues available to it. We are persuaded that the district court did not err in this ruling.
[5] The district court’s holding also rests on the alternative ground that the Webster group’s interests are adequately represented. Although the court stated that it need not reach the adequacy of representation, it discussed the avenues open to the Webster group to express the group’s position, either through the Desegregation Monitoring Committee, through counsel for the Jenkins class, by filing amicus curiae briefs, or by requesting permission to testify in hearings. In this discussion, the court actually deals with the adequacy of representation. Furthermore, in its discussion of permissive intervention later in the opinion, the court explicitly concluded that the Webster group’s interests are being adequately represented.
[6] [7] [8] A party cannot intervene as of right if another party in the litigation adequately represents its interests. Fed.R.Civ.P. 24(a)(2). There is a presumption of adequate representation when the persons attempting to intervene are members of a class already involved in the litigation or are intervening only to protect the interests of class members. See Bradley, 828 F.2d 1186, 1192; cf. United States v. South Bend Community Sch. Corp., 692 F.2d 623, 628 (7th Cir.1982). See generally 7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1909, at 318–19, 324–29 (1986). A difference of opinion concerning litigation strategy or individual aspects of a remedy does not overcome the presumption of adequate representation. See Bradley, 828 F.2d at 1192; Stadin v. Union Elec. Co., 309 F.2d 912, 919 (8th Cir.1962), cert. denied, 373 U.S. 915, 83 S.Ct. 1298, 10 L.Ed.2d 415 (1963); see also South Bend Community Sch. Corp., 692 F.2d at 628; Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3rd Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976); cf. United States v. Perry County Bd. of Educ., 567 F.2d 277, 280 (5th Cir.1978). But see *1276 United States v. Oregon, 839 F. 2d 635, 638 (9th Cir.1988).
There is no dispute that the students in the Webster group are members of the Jenkins class. The parents in the Webster group seek to intervene only to protect their children’s interests. Thus, there is a presumption that the Jenkins class adequately represents the interests of the Webster group. See Bradley, 828 F.2d at 1192. See generally 7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1909, at 318–19, 324–29.
The Webster group argues that the KCMSD has failed to implement programs designed to help African–American students who are still suffering from the harmful effects of past segregation. On numerous occasions in our earlier opinions we discussed the development of the programs designed to remedy the pervasive effects of past segregation, with particular attention to the victims. See Jenkins II, 855 F.2d at 1300–02 (citing Jenkins v. Missouri, 593 F.Supp. 1485, 1492 (W.D.Mo. 1984) and Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D.Mo.1985), aff’d as modified by, 807 F.2d 657 (8th Cir.1986) (en banc)). The district court and this Court have discussed in detail over the last ten years the development of the educational programs designed to remedy the effects of segregation and the extensive construction and renovation of facilities to serve as both magnet schools and traditional schools. The Webster group’s argument that KCMSD has failed to help develop programs designed to help the victims of unconstitutional segregation is contrary to the record in this case.
The rest of the Webster group’s argument consists of assertions that the Jenkins class ought to support increased minority enrollment in the magnet schools and have different priorities in the improvement of KCMSD schools. These arguments are disagreements over the details of the remedy and do not show inadequate representation. See Bradley, 828 F.2d at 1192.

The Webster group cites Liddell v. Caldwell, 546 F.2d 768 (8th Cir.1976), cert. denied, 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed. 2d 1100 (1977), in support of its argument that the Jenkins class no longer adequately represents the interests of African– American students. Liddell found of great significance the fact that the district court at the time of the intervention in question had “only partially approved specific plans for desegregation.” Id. at 771. This situation is in stark contrast to that in the case before us, where the desegregation program has been developed and partially implemented over the last ten years, substantial efforts and funds expended, and, indeed, where the State is calling for a declaration of unitary status. The Webster group does not argue that the Jenkins class has given up the goal of a unitary school system or that the Jenkins class cannot reach that goal on the path it has chosen. The group argues only that its members would prefer the Jenkins class take a different path to that goal. While the Jenkins class may not have completely satisfied all of its members, there is no showing that its conduct has been so deficient as to render its representation inadequate.
We believe that the district court implicitly reached the issue of adequacy of representation, and that the district court’s order is also sustainable on this ground. Indeed, we have serious doubts as to whether the Webster group presented evidence that would have been sufficient as a matter of law to sustain a finding that the Webster group’s interests were inadequately represented by existing parties and procedures.
If future developments in the ongoing litigation again present the necessity to rule on intervention issues, there will be time enough for further development of the record in the district court at that point.
We affirm the district court’s denial of the Webster group’s motion to intervene.

All Citations 78 F.3d 1270, 34 Fed.R.Serv.3d 834, 107 Ed. Law Rep. 598

Footnotes

1

The other proposed intervenors are Nia Webster, by her parents and next friends Elaine and Ajamu Webster;

Alley Pope, by her parent and next friend Carol Coe; Kimberly Beasley, by her parents and next friends Arthur

and Patricia Beasley; Arthur Beasley, by his parents and next friends Arthur and Patricia Beasley; Felicia Rhodes,

by her parents and next friends Charles and Elizabeth Rhodes; Christina Gravley, by her parent and next friend

Mona Hicks; Shara Kennedy, by her parent and next friend Ernestine Kennedy; Cassandra Young, by her parent

and next friend Bea Sanders; Ajamu Webster; Elaine Webster; Carol Coe; Patricia Beasley; Mona Hicks;

Ernestine Kennedy; and Bea Sanders.

2

The Honorable Russell G. Clark, Senior Judge, United States District Court for the Western District of Missouri.

3

Jenkins v. Missouri, 23 F.3d 1297 (8th Cir.1994) (Jenkins XI ), vacated, 515 U.S. 1139, 115 S.Ct. 2573, 132 L.Ed.

2d 824 (1995); Jenkins v. Missouri, 13 F.3d 1170 (8th Cir.1993) (Jenkins X ), rev’d, 515 U.S. 70, 115 S.Ct. 2038,

132 L.Ed.2d 63 (1995); Jenkins v. Missouri, 11 F.3d 755 (8th Cir.1993) (as amended on denial of rehearing en

banc) (Jenkins IX ), reh’g en banc denied, 19 F.3d 393 (8th Cir.1994), rev’d, 515 U.S. 70, 115 S.Ct. 2038, 132

L.Ed.2d 63 (1995); Jenkins v. Missouri, 967 F.2d 1245 (8th Cir.) (Jenkins–Clark II ), cert. denied, 506 U.S. 1033,

113 S.Ct. 811, 121 L.Ed.2d 684 (1992); Jenkins v. Missouri, 962 F.2d 762 (8th Cir.) (Jenkins–Clark I ), cert.

denied, 506 U.S. 915, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992); Jenkins v. Missouri, 949 F.2d 1052 (8th Cir.1991)

(Jenkins VII ); Jenkins v. Missouri, 943 F.2d 840 (8th Cir.1991) (Jenkins VI ); Jenkins v. Missouri, 942 F.2d 487

(8th Cir.1991) (Jenkins V ); Jenkins v. Missouri, 931 F.2d 470 (8th Cir.) (Jenkins IV ), cert. denied, 502 U.S. 967,

112 S.Ct. 437, 116 L.Ed.2d 456 (1991); Jenkins v. Missouri, 890 F.2d 65 (8th Cir.1989) (Jenkins III ); Jenkins v.

Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651,

109 L.Ed.2d 31 (1990); Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, 484

U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).

4

Jenkins v. Missouri, 38 F.3d 960 (8th Cir.1994) (Jenkins XII ); Jenkins v. Missouri, 981 F.2d 1009 (8th Cir.1992)

(Jenkins VIII ); Jenkins v. Missouri, 965 F.2d 654 (8th Cir.1992) (Jenkins– Missouri City ); Jenkins v. Missouri, 904

F.2d 415 (8th Cir.) (Naylor ), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 311 (1990).

5

Jenkins v. Missouri, 967 F.2d 1248 (8th Cir.1992) (Jenkins Fees IV ); Jenkins v. Missouri, 931 F.2d 1273 (8th Cir.)

(Jenkins Fees III ), cert. denied, 502 U.S. 925, 112 S.Ct. 338, 116 L.Ed.2d 278 (1991); Jenkins v. Missouri, 862 F.

2d 677 (8th Cir.1988) (Jenkins Fees II ); Jenkins v. Missouri, 838 F.2d 260 (8th Cir.1988) (Jenkins Fees I ), aff’d,

491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).

112 S.Ct. 437, 116 L.Ed.2d 456 (1991); Jenkins v. Missouri, 890 F.2d 65 (8th Cir.1989) (Jenkins III ); Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990); Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc) (Jenkins I ), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).

4

Jenkins v. Missouri, 38 F.3d 960 (8th Cir.1994) (Jenkins XII ); Jenkins v. Missouri, 981 F.2d 1009 (8th Cir.1992)

(Jenkins VIII ); Jenkins v. Missouri, 965 F.2d 654 (8th Cir.1992) (Jenkins– Missouri City ); Jenkins v. Missouri, 904

F.2d 415 (8th Cir.) (Naylor ), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 311 (1990).

5

Jenkins v. Missouri, 967 F.2d 1248 (8th Cir.1992) (Jenkins Fees IV ); Jenkins v. Missouri, 931 F.2d 1273 (8th Cir.)

(Jenkins Fees III ), cert. denied, 502 U.S. 925, 112 S.Ct. 338, 116 L.Ed.2d 278 (1991); Jenkins v. Missouri, 862 F.

2d 677 (8th Cir.1988) (Jenkins Fees II ); Jenkins v. Missouri, 838 F.2d 260 (8th Cir.1988) (Jenkins Fees I ), aff’d,

491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).

 
 103 F.3d 731 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, 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 Hershend, 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; Terry M. Riley, Member of the Board of Directors; Sharon M. Williams, Member of the Missouri State Board of Education; Lance Loewenstein, Member of the Board of Directors; Betty Preston, Member of the
Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; John A. Rios, Member of the Board of Directors; Darwin Curls,
Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; John W. Still, Member of the Board of Directors, Defendants—Appellees. Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs—Appellees, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants—Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants—Appellees. Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs—Appellees, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants—Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the

Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants—Appellees. Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs—Appellees, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants—Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants—Appellees.
Nos. 96–2809, 96–2918, 96–3215 and 96–3568. |
Submitted Dec. 9, 1996. |
Decided Jan. 10, 1997. |
Rehearing and Suggestion for Rehearing En Banc Denied March 19, 1997. |
Rehearing and Suggestion for Rehearing En Banc Denied Dec. 1, 1997.
Synopsis State appealed from orders of the United States District Court for the Western District of Missouri, Russell G. Clark, Senior District Judge, entered in school desegregation case. The Court of Appeals for the Eighth Circuit affirmed, 11 F.3d 755 and 13 F.3d 1170, and certiorari was granted. The Supreme Court, Chief Justice Rehnquist, reversed. After remand, the District Court established interim remedy plan and budget. State appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) district court appropriately permitted reinstatement of extended day program, disallowed budget cuts in seven schools and allowed permanent substitutes in foreign magnet schools as interim remedy plan and budget; (2) remand was required for district court to reconsider whether use of desegregation funds for marketing and recruitment efforts as part of remedy was prohibited; and (3) remand was required for district court to further consider whether continuation or phaseout of interdistrict transfer program was appropriate in desegregation action.
Affirmed in part and reversed and remanded in part.
Attorneys and Law Firms
*734 John R. Munich, Assistant Attorney General, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, Michael J. Fields and Bart A. Matanic, on the brief), for appellants/cross–appellees.
Mark A. Thornhill, Kansas City, MO, argued (Michael F. Delaney, John P. Jennings, Taylor Fields and Charles R. Brown, on the brief), for Kansas City Missouri School District.

Arthur A. Benson, II, Kansas City, MO, argued (Jamie Kathryn Lansford, on the brief), for Chinyere Jenkins.
Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
The State of Missouri appeals from orders of the district court1 establishing a remedy plan and budget for the 1996–97 school year in the ongoing Kansas City, Missouri School District desegregation case. The State also appeals from the district court’s order phasing out the Missouri City voluntary interdistrict transfer program. The Jenkins Class cross-appeals from the order phasing out the Missouri City program and from the order prohibiting use of desegregation funds for marketing and recruitment efforts directed solely at nonminority students living within the KCMSD who attend private and parochial schools. We affirm the district court’s order with respect to the budget for the 1996–97 school year, remand the Missouri City Program issue for further consideration, and reverse and remand the order relating to recruiting resident nonminorities who attend private schools.2
In Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ), the Court reversed an order funding salary increases for KCMSD personnel, which the district court had imposed to increase KCMSD’s desegregative attractiveness. Id. at ––––, 115 S.Ct. at 2055. The Court also reversed an order funding quality education programs because the order was based on findings that the student achievement levels were at or below national norms based on test scores. The Supreme Court remanded for reconsideration of the quality education order under the three-part test of Freeman v. Pitts, 503 U.S. 467, 491, 112 S.Ct. 1430, 1445, 118 L.Ed.2d 108 (1992). It further instructed that the district court “bear in mind that its end purpose is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.’ ” Id. at ––––, 115 S.Ct. at 2056 (quoting Freeman, 503 U.S. at 489, 112 S.Ct. at 1445).
After the Supreme Court’s remand, the State moved for an order declaring the KCMSD unitary and relinquishing jurisdiction over the entire case. Moreover, on May *735 21, 1996, the State and the KCMSD entered into an agreement that the State would continue to make payments over the next three years, with its liability to end at that time, subject to court approval. The Jenkins class was not a party to the agreement. In light of the magnitude of the issues raised by the unitariness motion and the settlement agreement, the district court set both matters for a hearing to commence on January 13, 1997.
In the interim a budget for the upcoming 1996–97 school year was established. The parties were able for the most part to agree on a budget as an interim measure. The parties agreed to a 1996–97 remedy plan and budget that reduced the KCMSD budget to $35 million below the preceding year, subject to a list of items on which the Jenkins Class disagreed with the other parties regarding the necessity of expenditures. That list included three of the budget items at issue in this appeal: the fourthround budget cuts, the extended day program, and the permanent substitutes. The parties agreed that although there would have to be a hearing to resolve the disputed budget issues, the weighty issues raised by the Supreme Court opinion would be reserved for later resolution. In particular, the parties agreed:
Certain parties contend that the State and the KCMSD have a continuing obligation to eliminate the remaining effects of de jure segregation to the extent practicable. The State denies that there are such remaining effects. All parties agree that they will not present any evidence at the June 1996 hearing on this issue, that no findings will be requested on this issue, that the Court need not enter any findings on this issue for the purpose of resolving the disputes among the parties or ordering implementation of any desegregation remedies proposed by any of the parties for the 1996–97 school year, and that no party will challenge any remedy component currently requested by any party and ordered by the Court for the 1996–97 school year on that basis.
The district court generally approved this stipulation, but the court disapproved the agreement to reserve consideration of the Missouri City transfer program and the expenditure of funds for advertising aimed at nonminority private and parochial school students within the KCMSD. The court found that it was in the best interests of all the parties to resolve those two issues sooner, rather than later. Order of March 7, 1996, slip op. at 2. Therefore, the court did not consider those two issues to

be subject to the Stipulation.
In considering the Missouri City transfer program, the district court concluded that the program was a type of interdistrict relief not permitted by the Supreme Court’s reasoning in Jenkins III. Slip op. at 3. However, the district court found it necessary and equitable to take into account the interests of the students who had volunteered to be a part of the transfer program and whose educations would be disrupted by an abrupt termination of the program. Id. at 4–5. The court held:
Balancing the interests of the participants with those of the State, the Court finds that equity requires that the present participants in the program be allowed to remain with present State funding per pupil until they graduate the eighth grade or voluntarily leave the program. The Court believes this process of winding down the Missouri City program resolves the difficulties of this situation in a reasonable equitable manner.
Id. at 5.
The court next considered the permissibility of using desegregation funds for advertising aimed at attracting nonminority students who reside in the KCMSD but attend private or parochial schools. The court held: “The State is correct that Jenkins III forecloses the use of desegregation funds for recruitment efforts where the sole purpose of the particular recruitment project is aimed at encouraging resident nonminorities currently in private or parochial schools to enroll in the KCMSD.” Id. at 5. The court held, however, that the recruitment and marketing department of the KCMSD still had a legitimate function in encouraging voluntary transfer of students within the KCMSD itself to magnet schools. Id. at 6–7. To the extent that this sort of advertising reaches nonminority private and parochial students incidentally, *736 it is of no legal import. Id. at 7. The court therefore approved the proposed budget item for the recruiting and marketing department, but ordered that the department should not direct any efforts solely at recruiting nonminority students who reside in the KCMSD but attend private schools. Id. at 7–8. The court also stated that it considered the State to have waived any objection to this item for the 1996–97 school year by the terms of the Stipulation. Id. at 7.
In a later order, the district court reached the items that had been reserved for its consideration by the terms of the Stipulation. The court considered the Jenkins Class’s proposal to restore funding for the extended day program, less $1 million the Jenkins Class estimated the KCMSD could collect by charging fees for enrollment in the program for children who do not qualify for free or reduced price lunch. Order of July 15, 1996, slip op. at 8. The court ruled that the extended day program should be preserved. The court explicitly based its holding on the state of the record before it, stating:
Plaintiffs presented substantial evidence in support of the current Extended Day Program. The KCMSD does not dispute the sincerity or accuracy of the testimony elicited by plaintiffs.... The Court was presented no evidence that the Extended Day Program as a whole has become ineffective or is an improper component of a desegregation remedy.
Id. at 9. The court rejected the idea of charging fees for the program based on financial need; since the program was intended to remedy constitutional violations suffered on account of race, not on account of financial status, the Jenkins Class’s proposal would result in charging some victims for a remedy to which they were entitled. Id. at 9–10.
Next, the court considered the Jenkins Class’s objections to the fourth-round budget cuts. KCMSD had proposed budget cuts in layers, with the first three rounds of cuts being the responsibility of the administration at the affected schools. The final, or fourth, round of budget cuts was imposed by the KCMSD administration, in some cases over the protest of the school principals. Again, the court based its decision on the testimony before it. Principals of some of the affected schools3 testified that the fourth-round cuts would damage the integrity of their schools’ magnet themes. Id. at 11. Therefore, the court ordered the fourth-round budget cuts to be reinstated at those seven schools. Id. Not all principals were called to testify. Consequently, the court was unable to make determinations about the advisability of the fourth-round budget cuts at the schools whose principals did not testify, and directed the Desegregation Monitoring Committee to evaluate whether the cuts should be made at those schools. Id. at 11–12.
The Jenkins Class also proposed that the KCMSD be required to maintain permanent substitutes at each of the district’s schools. The court found that permanent substitutes were not generally necessary except in the foreign language magnets. These schools depend on immersion in the foreign language, which entails teaching substantive courses in the foreign language. Because of the difficulty in finding substitutes qualified to conduct classes in the various languages, the court found it appropriate that permanent substitutes be retained at the language magnets. Id. at 13.

I.
A.
[1] The State attacks the district court’s reinstatement of the extended day program, the fourth-round budget cuts in the seven schools, and the permanent substitutes in the foreign language magnets. The State contends that these expenditures violate the command of Jenkins III to consider the interest in local autonomy and to limit the aim of remedial programs to restoring the victims of de jure segregation to the position they would have occupied absent the constitutional violation. These arguments depend on antecedent assumptions or findings about what *737 vestiges of injury remain in the KCMSD. The State stipulated away its right to make this sort of argument at this stage of the litigation in its agreement limiting the issues to be decided in connection with the 1996–97 budget:
Certain parties contend that the State and the KCMSD have a continuing obligation to eliminate the remaining effects of de jure segregation to the extent practicable. The State denies that there are such remaining effects. All parties agree that they will not present any evidence at the June 1996 hearing on this issue, that no findings will be requested on this issue, that the Court need not enter any findings on this issue for the purpose of resolving the disputes among the parties or ordering implementation of any desegregation remedies proposed by any of the parties for the 1996–97 school year....
The effect of the Stipulation was before us on the motion to stay. We there held the issue raised by the State to be foreclosed by the Stipulation. Order of October 23, 1996. We have given further detailed study to the terms of the Stipulation and reach the same conclusion as we did before.
By arguing that Jenkins III requires the district court to take action without regard to the existence and extent of vestiges of segregation, the State shows an imperfect understanding of the Jenkins III holding. The reasoning in Jenkins III depends on a framework of three factors that must be balanced against each other in crafting a desegregation remedy under Milliken v. Bradley, 433 U.S. 267, 280–81, 97 S.Ct. 2749, 2757–58, 53 L.Ed.2d 745 (1977) (Milliken II ): (1) the nature of the remedy must be determined by the nature and scope of the constitutional violation; (2) the decree must remedy the unconstitutional condition by restoring the victims as nearly as possible to the position they would have occupied had the violation never taken place; and (3) the decree must take into account the importance of state and local autonomy. 515 U.S. at ––––, 115 S.Ct. at 2049. The Supreme Court emphasized that remedial orders should not be crafted taking the first factor into consideration without adequate regard for the second two. Id. This certainly does not lead to the conclusion that such orders can be crafted only by reference to the third factor, without consideration of the first two factors. Yet, the State would have us assess the propriety of the three disputed programs in light of Jenkins III when the State has stipulated that the court shall make no findings with regard to the second factor, whether there exists vestiges of the unconstitutional condition. The Supreme Court ordered a balancing process; the State asks us to carry out that process with only one side of the scale. This is impossible, and would be erroneous under Jenkins III.
Despite its Stipulation, the State argues that the court erred in ordering relief that benefits students who are not victims of segregation. This assumes the very fact that the State stipulated would not be resolved—whether there exist to this day vestiges or after-effects of the unconstitutional system that still affect student achievement levels in the KCMSD. The Supreme Court mentioned that students in kindergarten through grade 7 have always attended AAA schools, and that the older students have received remedial education programs for up to seven years. Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2056. However, the Supreme Court did not say that there were no remaining victims of the after-effects of segregation. Rather, the Court remanded for further proceedings. “But these are questions that the Court rightly leaves to be answered on remand.” Id. at ––––, 115 S.Ct. at 2061. (O’Connor, J., concurring). The State’s inference that the Supreme Court considered the State’s work done and the KCMSD unitary is grossly premature, as well as inconsistent with the Stipulation, which acknowledged this to be a disputed question. Until we know the answer to that question, we certainly cannot say which students are affected by vestiges of segregation and in what way. Consequently, the State’s contention that the district court’s orders benefited non-victims begs the question by assuming that we know who the remaining victims are.

In light of the Stipulation which the State entered and the district court approved, we can only view the 1996–97 budget as an *738 interim measure. Clearly, the matter had to be resolved before the school year and yet, a full adjudication of the constitutional questions inherent in the matter would require hearings and findings which could not be achieved before the school year began. In response to this dilemma, the parties entered into the Stipulation reserving the constitutional questions for a later day. With this compromise before it, the district court acted properly in judging the propriety of the disputed programs by criteria that remained available after the Stipulation. In the case of the fourth-round budget cuts and the permanent substitutes, the court decided that doing away with the particular programs would undermine the magnet themes. In the case of the extended day program, it decided simply that the program was beneficial to the students. The Supreme Court certainly did not disapprove either of the idea of magnet schools, see Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2051 (“We previously have approved of intradistrict desegregation remedies involving magnet schools”), or of improving the quality of education offered in the district, see id. at ––––, 115 S.Ct. at 2050 (“Thus, the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a systemwide reduction in student achievement and the existence of 25 racially identifiable schools....”). The Supreme Court only held that the appropriateness of orders pursuing those goals must be ascertained by balancing all three Milliken II factors, and the State stipulated that the district court would not determine one of those factors in adjudicating the propriety of the three programs in question.
In sum, the State’s arguments attacking the approval of the three disputed programs for the 1996–97 year depend on a reasoning process that the district court could not complete because of the parties’ Stipulation. The district court appropriately considered the propriety of those programs as an interim measure, as was contemplated by the parties’ agreement. We therefore affirm the district court’s order regarding the extended day program, permanent substitutes in the foreign language magnets, and the restoration of the fourth-round budget cuts in the seven schools.
B.
The State argues that the record evidence showed the extended day program is “just babysitting,” and that therefore its only possible purpose is to attract suburban students. While the extended day program undeniably serves a child care function, there was a great deal of testimony before the court that the program also serves an educational purpose. We have reviewed the testimony the State cites, and it certainly does not compel the conclusion that the extended day program only exists to attract suburban students.
C.
The State also argues that the district court’s order of July 15, 1996 contravenes Jenkins III, and that the district court’s authority is simply to execute the mandate of Jenkins III. It argues that by ordering the three disputed programs the district court has refused to follow the Supreme Court’s mandate that the process of returning KCMSD to local control begin in earnest.
The State argues that Jenkins III requires restoration of local control at the earliest practical date. The argument is based on the State’s reading of Jenkins III that “the District Court must bear in mind that its end purpose is ... to restore state and local authorities to ... control,” 515 U.S. at ––––, 115 S.Ct. at 2056 (quotation omitted). The State argues that the Supreme Court emphasized the vital national tradition of local autonomy of school districts and ordered that no additional programs be imposed that unwarrantably postpone the day when KCMSD will be able to operate on its own. Id. at ––––, 115 S.Ct. at 2056.
The shortcoming of the State’s argument is that it edits the language of the Supreme Court in a manner that presents less than a full and fair reading of the Court’s holding. The Court in Jenkins III certainly refers to the restoration of local control on several occasions, see, e.g., id. at ––––, ––––, 115 S.Ct. at 2054, 2056, and the Court emphasizes *739 the goal of returning the school district to local control, but the other part of the equation is that the district court must consider whether the previously segregated district has achieved partial unitary status. Jenkins III points out that the State had not sought a declaration of partial unitary status with respect to quality education programs. Id. at ––––, 115 S.Ct. at 2055. In rejecting arguments relating to whether national norms could be considered in evaluating the success of educational programs the

Supreme Court stated:
But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status. See Freeman, 503 U.S. at 491 [112 S.Ct. at 1445]; [Board of Educ. of Oklahoma City Public Schools v.] Dowell, 498 U.S. [237] at 249–50 [111 S.Ct. 630, 637–38, 112 L.Ed.2d 715 (1991)]. The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable....
In reconsidering this order, the District Court should apply our three-part test from Freeman v. Pitts, supra, 503 U.S., at 491, 112 S.Ct., at 1445–1446.
Id. The three-part test for partial unitariness was stated in Freeman v. Pitts, 503 U.S. at 491, 112 S.Ct. at 1446:
A court’s discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power. Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.
Jenkins III concludes:
On remand, the District Court must bear in mind that its end purpose is not only “to remedy the violation” to the extent practicable, but also “to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Freeman, 503 U.S. at 489, 112 S.Ct. at 1445.
115 S.Ct. at 2056.
The last passage above demonstrates that the State, in stressing the return to local control, has completely ignored the Court’s direction to engage in the inquiry required by Freeman v. Pitts, to ascertain whether unitary status has been achieved, whether the results of segregation have been remedied to the extent practicable, and whether a school system operating in compliance with the Constitution may be restored to state and local control.
We thus reject the argument the State makes that Jenkins III has mandated determination of the issues now before us. The Supreme Court has made clear in Jenkins III that the State did not seek a declaration of partial unitary status with respect to the quality education programs, 515 U.S. at ––––, 115 S.Ct. at 2055, but rather that the case now must be returned to the district court to make that inquiry.
In view of the parties’ stipulation and the Supreme Court’s remand to the district court to consider the question of unitary status under Freeman, it is not necessary that we reach the merits of the arguments advanced by the State.
II.
[2] The Jenkins Class cross-appeals, arguing that the district court erred in prohibiting the use of desegregation funds for marketing and recruitment efforts directed solely at drawing private school students living within the KCMSD boundaries. In its orders of March 7, 1996, slip op. at 5–7, and May 31, 1996, slip op. at 2–3, the district *740 court ruled that the desegregative attractiveness discussion in Jenkins III forbade use of desegregation funding to recruit nonminority private school students living within the KCMSD, as well as to recruit suburban nonminorities. The district court reasoned that “private and parochial schools are essentially districts within themselves,” slip op. at 6, and that therefore spending desegregation money to recruit students from those schools was based upon the same impermissible interdistrict goals as recruiting students from suburban public school districts. Id.
The Jenkins Class argues that the district court drew incorrect inferences from Jenkins III in considering private schools to be

equivalent to other public school districts. The Class argues that the reason the Supreme Court disapproved of interdistrict relief was to avoid “burdening other public school districts which were not constitutional violators, not [to protect] independent private entities.” The Class also points out that the district court ruled before these issues had been thoroughly briefed.
We first must concede that the record with respect to this issue may have been most generally developed with respect to the differences between private and parochial schools and public schools, and we have questions with respect to whether they are “essentially districts within themselves” as found by the district court. We believe, however, that this issue can be addressed again with a more complete record on remand.
We conclude that the legal underpinning in the district court’s analysis runs contrary to Jenkins III. Jenkins III discussed at some length the difference between intradistrict violations and interdistrict violations, and the remedies that may be appropriate for each. 515 U.S. at –––– – ––––, 115 S.Ct. at 2049–54. It concluded that the interdistrict goal of attracting students from surrounding districts was an interdistrict remedy for an intradistrict violation. Id. at ––––, 115 S.Ct. at 2052.
The following passages from Jenkins III demonstrate the basis for the Court’s ruling:
What we meant in Milliken I [Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ] by an interdistrict violation was a violation that caused segregation between adjoining districts.
515 U.S. at ––––, 115 S.Ct. at 2052. In Jenkins III, the Supreme Court said that nothing in Milliken I suggested that the district court could have required the State of Michigan to implement a magnet program designed to achieve the same interdistrict transfer of students that Milliken I had held to be beyond its remedial authority. 515 U.S. at ––––, 115 S.Ct. at 2052. Jenkins III continued:
Here, the District Court has done just that: created a magnet district of the KCMSD in order to serve the inter district goal of attracting nonminority students from the surrounding SSD’s and redistributing them within the KCMSD. The District Court’s pursuit of “desegregative attractiveness” is beyond the scope of its broad remedial authority.4
*741 Id. at ––––, 115 S.Ct. at 2052 (second emphasis added). The Supreme Court then discussed the issue of white flight and concluded:
The record here does not support the District Court’s reliance on “white flight” as a justification for a permissible expansion of its intradistrict remedial authority through its pursuit of desegregative attractiveness.
515 U.S. at ––––, 115 S.Ct. at 2053.
This language from Jenkins III indicates that the remedy cannot be designed to recruit students from adjoining districts to the Kansas City schools in an effort to remedy intradistrict violations. We do not read Jenkins III as restricting the KCMSD’s efforts to attract back to its schools those residents of the district who now attend private and parochial schools. As the Jenkins Class points out, the funding for the schools under the state procedures is based upon enrollment, and an increase in enrollment is in the best interest of KCMSD. As the district court discussed, efforts directed at KCMSD students may have an impact on KCMSD resident students in parochial and private schools. Slip op. at 7. As pointed out by Justice O’Connor, such effects are of no consequence. See Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2060 (O’Connor, J., concurring).
Thus, we conclude that the district court’s analysis rested on a questionable reading of Jenkins III, and we remand this issue for further consideration.
III.
[3] The State argues that the district court abused its discretion in ordering continued funding of the Missouri City

Interdistrict Transfer Program for eight additional years, because it is an impermissible interdistrict remedy in this intradistrict case. The Jenkins Class argues that the district court erred in ordering the phaseout of the program. Only thirteen students participate in this program. No other suburban schools have accepted minority students from KCMSD.
The district court’s order of March 7, 1996, recognizes that the Missouri City Program is an interdistrict program based upon a stipulation, and that this stipulation can be modified by changing circumstances, such as those provided by the Supreme Court opinion in Jenkins III. Slip op. at 4 (citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 390, 112 S.Ct. 748, 763, 116 L.Ed.2d 867 (1992)). The district court, however, looked to the limits of this responsibility to determine whether the proposed modification is suitably tailored to the changing circumstances. Slip op. at 4–5. In doing so, it rejected the State’s argument that the program should be discontinued after one year, but looked to the public interest in seeing the State honor its agreements made on the public’s behalf. The district court therefore ordered that the present participants in the program be allowed to remain with present state funding until they graduate eighth grade or voluntarily leave the program.
The State’s argument that the court lacks authority to order such a program is somewhat weakened by its admission in oral argument that the district court should discontinue the program with reasonable promptness, at most the completion of the school year in question. The State’s position at least approaches a concession that the district court may determine what is reasonable promptness, and the proper length of the phaseout.
The State makes a robust argument that Jenkins III bars such interdistrict remedies. On the other hand, the legal underpinning in the past has been that voluntary plans can be a part of an intradistrict remedy and that the burden can be placed on the constitutional violator, in this instance, the State of Missouri.
The Missouri City order was entered on March 7, 1996, one of the first orders entered by the court following Jenkins III, and it was not thoroughly briefed. While the State had filed a motion for declaration of unitary status by March 7, the State had not made an effort to call for a hearing on this issue. After the March 1996 order, the State and KCMSD entered a proposed agreement for a three-year phaseout of the desegregation remedy, subject to court approval. Both the unitariness and settlement matters were set for hearing.
*742 Under these circumstances, we deem it unnecessary to discuss the arguments in further detail. In view of the State’s concession that some reasonable phaseout is authorized, we think it appropriate to remand this issue to the district court for further consideration after the hearing concerning unitary status and the proposed settlement.
...
The opinion of the Supreme Court in Jenkins III gave specific directions to the district court to reconsider the order on quality education programs under the three-part test from Freeman v. Pitts. The Court makes clear the necessity for detailed and specific findings by the district court and that it identify the incremental effect that segregation has had on minority student achievement, and the specific goals of the quality education programs. 515 U.S. at ––––, 115 S.Ct. at 2055. It further instructed that the district court should “sharply limit, if not dispense with, its reliance” on improved achievement on test scores. Id. It cautioned that the quality education programs should be tailored to remedy the injuries suffered by the victims of prior de jure segregation. Id. at ––––, 115 S.Ct. at 2056.
We think it also appropriate to observe the comment of Justice O’Connor, who joined in the opinion of the Court, but in her concurring opinion noted that the Court refrained from addressing the propriety of all the remedies the district court has ordered, revised, and extended in the eighteen-year-old history of the case. While these remedies may be improper to the extent that they serve the goals of desegregative attractiveness and suburban comparability that were held to be impermissible, “conversely, the District Court may be able to justify some remedies without reliance on these goals. But these are questions that the Court rightly leaves to be answered on remand.” 515 U.S. at ––––, 115 S.Ct. at 2061 (O’Connor, J., concurring).
We therefore affirm the district court’s disposition of the 1996–97 budget issues, and reverse and remand on the private school recruiting issue and the Missouri City transfer program issue.

All Citations 103 F.3d 731, 115 Ed. Law Rep. 302

Footnotes

1

The Honorable Russell G. Clark, Senior Judge, United States District Court for the Western District of Missouri.

2

The orders on appeal are the July 15, 1996 order with respect to the 1996–97 budget; the order of August 30,

1996, denying stay pending appeal; and the March 7, 1996 order, disapproving the use of funds for the purpose

of recruiting resident nonminorities and establishing a phaseout plan for the Missouri City Voluntary Interdistrict

Transfer Plan. The Jenkins Class moved to alter or amend this order, and the district court denied the motion on

May 31, 1996.

3

The schools were Trailwoods Elementary, Knotts Elementary, North Rock Creek/Korte, J.A. Rogers Middle

School, Kansas City Middle School for the Performing Arts, the Foreign Language Middle School, and East High

School.

4

Jenkins III also made the following statements:

The purpose of desegregative attractiveness has been not only to remedy the system-wide reduction in

student achievement, but also to attract nonminority students not presently enrolled in the KCMSD....

...

The District Court’s remedial plan in this case, however, is not designed solely to redistribute the students

within the KCMSD in order to eliminate racially identiﬁable schools within the KCMSD. Instead, its purpose is

to attract nonminority students from outside the KCMSD schools. But this inter district goal is beyond the

scope of the intra district violation identiﬁed by the District Court. In effect, the District Court has devised a

remedy to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the

interdistrict transfer of students. 639 F.Supp. [19] at 38 [W.D.Mo.1985] (“ ‘[B]ecause of restrictions on this

Court’s remedial powers in restructuring the operations of local and state government entities,’ any

mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond the nature and extent

of the constitutional violation [that] this Court found existed”).

In Milliken I we determined that a desegregation remedy that would require mandatory interdistrict

reassignment of students throughout the Detroit metropolitan area was an impermissible interdistrict

response to the intradistrict violation identiﬁed.

515 U.S. at ––––, 115 S.Ct. at 2051 (emphasis in last paragraph added).

 
 959 F.Supp. 1151 United States District Court,
W.D. Missouri, Western Division.
Chinyere JENKINS, et al., Plaintiffs, v.
STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–RGC. |
March 25, 1997.
Synopsis In desegregation action, state moved for determination of unitary status and approval of transition plan reflected in agreement among state, school district and teachers’ union. The District Court, Russell G. Clark, Senior District Judge, held that: (1) state had burden to prove that any achievement gap in test scores of black and white students was not vestige of prior discrimination; (2) evidence warranted finding that part of achievement gap was effect of prior discrimination; (3) evidence indicated that district had not achieved unitary status as to assignment of students and faculty, facilities, and transportation, but had achieved such status as to extracurricular activities; and (4) approval of transition funding agreement and dismissal of state from action upon payment of the funds thereunder was warranted.
Ordered accordingly.
Attorneys and Law Firms
*1152 Arthur A. Benson, II, Jamie Lansford, Jane McQueeny, Kathy Finnell, Gregg F. Lombardi, Benson and McKay, Kansas City, MO, for Plaintiffs.
John R. Munich, Deputy Attorney General, Michael J. Fields, Gregory J. Scott, Bart A. Matanic, John Jackson, Assistant Attorneys General, Jefferson City, MO, Alfred A. Lindseth, Rocco E. Testani, Sutherland, Asbill & Brennan, L.L.P., Atlanta, GA, for Defendant State of Missouri.
Mark A. Thornhill, Michael F. Delaney, John P. Jennings, Spencer, Fane, Britt & Browne, Kansas City, MO, for Defendant Kansas City, Missouri School District.
Scott Raisher, Fredrick Wickham, Brian P. Wood, Jolley, Walsh & Hager, P.C., Kansas City, MO, for AFT Local 691.
OPINION AND ORDER
RUSSELL G. CLARK, Senior District Judge.
On April 26, 1996, the State of Missouri (State) filed a Motion for Declaration of Unitary Status, Dissolution of all Injunctions, and Relinquishment of Jurisdiction from the desegregation order previously entered by this Court. On May 21, 1996, however, the State and the Kansas City Missouri School District (KCMSD or District) entered into an agreement (Agreement) pursuant to which the State would pay $314 million in desegregation funding to the KCMSD over a three-year period. On July 3, 1996, the American Federation of Teachers (AFT) announced that it would join in the Agreement. Subsequently, on July 19, 1996, the State filed a Motion for Final Dismissal and Approval of Transition Plan Reflected in the Agreement Between the State, KCMSD and AFT. Upon final approval of the Agreement by this Court, and the payment of $314 million, the State would be entitled to an order dismissing the State from this action. The Agreement provides that the

State would pay any further court-ordered payments in addition to the original $314 million. This Court increased the State’s finding obligations by $6 million at the June, 1996 budget hearing. That would, therefore, bring the total to be paid by the State to approximately $320 million. The State has already paid $107 million for Fiscal Year 1997, leaving a net amount due under the Agreement of approximately $213 million. On August 14, 1996, the KCMSD filed a “Memorandum In Support of Its May 21, 1996 Agreement With the State Defendants and AFT.” The KCMSD, therefore, while opposing the State’s Motion for Unitary Status, agrees with the State that the Court should release the State from any obligations except those to which the State *1153 has pledged itself in the Agreement. The AFT occupies the same position as the KCMSD, opposing the unitary status motion, while endorsing the Agreement. The plaintiffs contest both the State’s Motion for Unitary Status and the Approval of the Agreement.
The Court held a hearing in Kansas City, Missouri for three weeks from January 13 through January 31, 1997 to hear testimony concerning the above motions. Evidence included testimony from a number of expert witnesses, KCMSD board members, administrators and teachers of the KCMSD, representatives of the Missouri Department of Elementary and Secondary Education (DESE), students who attend the KCMSD, and parents of KCMSD students. The Court has reviewed all the exhibits, testimony from the hearing, and post-hearing briefs. For the reasons set forth below, the Court will approve the Agreement between the State and the KCMSD, deny in part the State’s Motion for Unitary Status, and grant in part the State’s Motion for Unitary Status.
I. Introduction
In 1977, members of the Kansas City School Board, the KCMSD, and plaintiff schoolchildren brought suit against the State and other defendants. Plaintiffs alleged that the State, the surrounding suburban school districts (SSDs), and various federal agencies had caused and perpetuated a system of racial segregation within the KCMSD. The Court realigned the KCMSD as a defendant and after a trial on liability, dismissed the federal agencies and SSDs, holding the State and the KCMSD jointly and severally liable.
In 1984, the Court instructed both the KCMSD and the State to prepare a plan to establish a unitary school system. Jenkins v. Missouri, 593 F.Supp. 1485, 1506 (W.D.Mo.1984). After directing the parties to focus their energies on schools with over 90% minority enrollment, the Court identified the purpose of public schools as furnishing “quality education” to its students. Id. This Court’s first remedial order in 1985 identified educational achievement as a proper goal in a desegregation remedy. Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D.Mo.1985). This Court found that there had been a “system wide reduction ” in student achievement in the schools of the KCMSD. The Court also quoted from A Nation of Risk:
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
Id. (quoting U.S. NAT’L COMM’N ON EXCELLENCE IN EDUCATION, A NATION AT RISK: THE IMPERATIVE FOR EDUCATIONAL REFORM 1 (1983)) (emphasis added). Nearly twelve years later, as this Court re-examines the status of the KCMSD, these words bear repeating. As the gap between rich and poor widens, and racial divisions, once thought in the healing process, expose long-festering wounds to a public that cannot imagine the reality of being black in America, this Court warns not only the citizens of Kansas City, but also the entire country, that while this Court may be powerless to remedy societal ills, some action must come soon to give hope to these disenfranchised citizens before the chasm in America becomes so wide that it may not be crossed.
II. Background
While the quality of education received by KCMSD students is at issue, an undercurrent runs through the pleadings of the parties: money—how much the State has spent during the course of the remedy and from what direction future funding will flow. This present proceeding had its birth in the Supreme Court decision of June, 1995. In that case, Missouri v. Jenkins, 515

U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ), the Supreme Court strained legal reasoning to examine both the scope of the remedy and the voluntary interdistrict remedy prescribed by this Court. The Supreme Court concluded that this Court had exceeded its equitable powers. The Jenkins III *1154 Court spoke at length concerning the cost of the remedial efforts undertaken within the KCMSD. “The total cost for these quality education programs has exceeded $220 million.” Id. at ––––, 115 S.Ct. at 2043. “Since its inception, the magnet school program has operated at a cost, including magnet transportation, in excess of $448 million.” Id. “As of 1990, the District Court had ordered $260 million in capital improvements.... Since then, the total cost of capital improvements ordered has soared to over $540 million.” Id. at ––––, 115 S.Ct. at 2044. “The District Court’s desegregation plan has been described as the most ambitious and expensive remedial program in the history of school desegregation.... As a result, the desegregation costs have escalated and now are approaching an annual cost of $200 million.” Id. “The State, through the operation of joint-and-several liability, has borne the brunt of these costs.” Id. at ––––, 115 S.Ct. at 2045. The State defendants have contributed approximately $1.2 billion to the Kansas City Missouri School District. The KCMSD has expended over $600 million of its own funds, bringing the total cost of the desegregation effort to $1.8 billion.
Fueled by the victory before the Supreme Court, the State placed a motion before the Court in April of 1996 for a declaration of unitary status. If the Court would grant unitary status, however, in addition to the loss of the state-supplied desegregation funding, the court-ordered KCMSD tax levy would fall from $4.96 to the state-ordered minimum of $2.75. Voters in the KCMSD have not passed an increase of the tax levy since 1969. In addition to the loss of these tax revenues, the decrease in the tax levy would cause a further decrease in the amount received from the state-funding formula, which provides increased funding for districts with higher levies. This could amount to a decrease in funding of approximately $75 million per year, in addition to the elimination of the state desegregation funding, which is also $75 to $80 million annually. This would reduce the current KCMSD budget to about half of what it is now.
In May of 1996, a month after the State put forth its Motion for Unitary Status, the State and the KCMSD signed an agreement whereby the State would pay the KCMSD $314 million over a three-year period, dependent upon the State’s release from further desegregation obligations and the jurisdiction of the Court. The Court, however, must approve the Agreement. If the Court approves the Agreement, it releases the State from further financial obligation but leaves in place the $4.96 court-ordered levy. All of the parties agree that removal of the court-ordered levy would result in “fiscal chaos.”
The Court held a hearing beginning on January 13, 1997 concerning the State’s Motion for Unitary Status and its Motion for Approval of the Agreement. The State believes that its massive contributions over the last eleven years should outweigh any constitutional harm imposed some thirty to forty years previously. Much of the evidence at the hearing centered around how much the State has paid over the course of the litigation and the financial turmoil that would ensue if the KCMSD was declared to be unitary. Post-hearing briefs from all of the parties contained many references to the funding issues. In a proposed order submitted with its post-hearing brief, the State included findings of fact and conclusions of law that supported the approval of the Agreement with the KCMSD but declined to rule on the issue of unitary status. A further State Brief supplied more details of the financial calamity that would ensue were the Court to declare unitary status. This leads the Court to believe that the State defendants do not really wish this Court to declare unitary status. Even the KCMSD, presumably the beneficiary of a return to local control, does not want this Court to grant the State’s Motion for Unitary Status.
In a prior ruling in this litigation, the Supreme Court cautioned against the plaintiffs and the KCMSD holding the State hostage to ever-increasing expenditures. Missouri v. Jenkins, 495 U.S. 33, 76, 110 S.Ct. 1651, 1676, 109 L.Ed.2d 31 (1990) (Kennedy, J., concurring). In this current proceeding, however, this Court is not too sure that the KCMSD and the State are not collaborating to hold the KCMSD taxpayers hostage to a court-ordered levy—all of which has the effect *1155 of allowing either the voters of the Kansas City Missouri School District or the state legislature to avoid making difficult decisions about the financial support of the second largest school district in the state and one in which state-supported segregation had some egregious effects. The Court, however, must focus on the legal issues involved, in addition to the welfare of the Kansas City schoolchildren and the mandate of the Supreme Court to return the KCMSD to the control of state and local authorities as soon as possible-presumably whether they would like it or not Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2056.
The shifting postures of the parties in this case mirror the change in direction that the Supreme Court has taken in recent years in their decisions regarding school desegregation. See Board of Education v. Dowell, 498 U.S. 237, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991); Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992); Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995). No longer must the Court eliminate the vestiges of segregation “root and branch.” See Green v. County School Board of New Kent County, 391 U.S. 430, 438, 88 S.Ct. 1689, 1694,20 L.Ed.2d 716 (1968). Instead, the Court must only assess whether everything “practicable” has been done to eliminate the vestiges of the prior

discrimination and further, the Court may grant unitary status in incremental stages. The clear standard articulated in recent unitary status cases by the Supreme Court requires that defendants must show that they have “complied in good faith with the desegregation decree since it was entered” and that the “vestiges of past discrimination have been eliminated to the extent practicable.” Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2049 (quoting Freeman v. Pitts, 503 U.S. 467, 492, 112 S.Ct. 1430, 1446, 118 L.Ed.2d 108 (1992)). Courts examine the factors identified in Green for remaining vestiges of the prior discrimination to determine if a school system has attained unitary status. See Green, 391 U.S. at 435, 88 S.Ct. at 1692. Thus, the Court should scrutinize the equality of student, faculty, and staff assignments, facilities, transportation, and extracurricular activities. Id.
Additionally, in Jenkins III, the Supreme Court directed this Court to:
(1) “decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to extent practicable”;
(2) identify the “incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs”; and
(3) apply the three-part test articulated by the Court in Freeman v. Pitts.
Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2055. The test from Freeman v. Pitts requires the Court to consider the following questions:
[W]hether there been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.
Freeman, 503 U.S. at 491, 112 S.Ct. at 1446. Having set forth the legal standards, the Court will consider the current status of the KCMSD, now in the twelfth year of its remedial plan.
III. Unitary Status: Examining the Vestiges of the Prior Segregation
A. History From the late 1950s until the mid–1970s, the KCMSD maintained schools that were identifiable by race: schools with a predominantly black enrollment had black teachers; black schools were often overcrowded even though under-utilized white schools were nearby; black schools had older and less useful books and equipment than white schools; black schools had fewer or inferior *1156 libraries, science laboratories, and physical education facilities compared to white schools; black schools offered diluted educational programs, including fewer college preparatory courses (or none) compared to white schools; and the general physical condition of black schools was worse than the condition of white schools. Stipulation, February 21, 1984.
The State took positive actions that discriminated against blacks, contributed significantly to the dual housing market, which denied black families ownership in certain neighborhoods, and thus harmed blacks financially. Jenkins, 593 F.Supp. at 1503. The State engaged in a wide range of activities, both officially and unofficially that discriminated against blacks in their public and private lives, and placed the State’s imprimatur on racial discrimination. Jenkins, 593 F.Supp. at 1503. These actions contributed significantly to the creation and maintenance of the racially discriminatory dual housing system in the KCMSD. Id. The many blacks who were harmed financially by the dual housing market were further harmed in the 1970s and early 1980s when inflation caused home equity to increase for most U.S. households. (Testimony of Hanushek, Tr. at 830). The financial discrimination of the dual housing market which denied blacks substantial growth in home equity deprived many black parents of KCMSD students of the household wealth they would have had but for the dual housing market. (Testimony of Hanushek, Tr. at 829–30).

B. Today The State has given approximately $1.2 billion to the KCMSD for remedial programs since 1985 to desegregate the District’s schools. (State Ex. 81). Additionally, the KCMSD has contributed approximately $600 million of its own to desegregation funding. (State Ex. 82). The desegregation plan in Kansas City is by far the most expensive ever implemented in any school district. (Testimony of Rossell, Tr. at 189). Since 1986, the State and the KCMSD have spent over $488 million for the construction of new schools and renovation of existing schools. (State Ex. 74). Since 1985, 15 new schools have been built and 54 schools have been completely renovated. (State Ex. 84). Many of its facilities can accurately be described as the finest in Missouri, if not the country. Order of July 30, 1993. A videotape tour of several schools introduced as evidence by the State at the hearing demonstrated that even those schools considered as aging have enjoyed a “facelift” and now provide a clean, pleasant environment for the students. (State Exs. 63A–D). The State’s expert on magnet schools, Dr. Christine Rossell, stated she had never seen the level of resources that have been expended on magnet schools as in the Kansas City Missouri School District. (Testimony of Rossell, Tr. at 139). According to one expert witness, the equipment-student ratios in the KCMSD magnet schools were “truly phenomenal.” (Testimony of Armor, Tr. at 426).
C. A Preliminary Issue: The Burden of Proof [1] Plaintiffs and the KCMSD maintain that because the State violated the Constitution, the burden of proof rests on the adjudged constitutional violator to show the elimination of any vestiges of the prior discrimination. The State contends that while this might be true for a vestige of a racial imbalance, it does not apply to any educational vestiges, such as the achievement gap shown to exist between test scores of black and white students within the KCMSD. As support, the State cites several unitary status cases that, according to the State, shift the burden of proof back to the plaintiffs when the alleged vestige is an achievement gap. See Coalition to Save Our Children v. State Board of Education, 90 F.3d 752, 776–78 (3d Cir. 1996) (burden of proof on plaintiff because alleged student achievement disparities that were raised in the unitary status hearing had not previously been identified as a vestige of de jure segregation); School Board of the City of Richmond v. Baliles, 829 F.2d 1308, 1310–11 (4th Cir.1987) (affirming the district court decision to shift the burden of proof to plaintiffs because the school district had already attained unitary status); Oliver v. Kalamazoo Board of Education, 640 F.2d 782, 810– 11 (6th Cir.1980) (because school district had achieved unitary *1157 status, burden of proof on plaintiffs regarding the achievement gap); People Who Care v. Rockford Board of Education, No. 89–C20168, 1996 WL 364802, at *73 & n. 146 (N.D.Ill. June 7, 1996) (refusing to extend burden shifting to achievement scores). United States v. City of Yonkers, 833 F.Supp. 214, 220 (S.D.N.Y.1993) (causation issue deferred, but court notes that burden of proof rests on defendant once constitutional infraction is established).
[2] It is well established that once a court has found an unlawful dual school system, the plaintiffs are entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants. Dayton Board of Education v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2979, 61 L.Ed.2d 720 (1979). “[A]fter past intentional actions resulting in segregation have been established ... the burden becomes the school authorities’ to show that the current segregation is in no way the result of those past segregative actions.” Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 211 n. 17, 93 S.Ct. 2686, 2699 n. 17, 37 L.Ed.2d 548 (1973). This presumption ends, however, once a school district has achieved unitary status. Riddick v. School Board, 784 F.2d 521 (4th Cir.), cert. denied, 479 U.S. 938, 107 S.Ct. 420, 93 L.Ed.2d 370 (1986).
All of the cases cited by the State, save one, do not support the position the State has taken. Only in People Who Care—a district court decision from Illinois—has a court made a distinction between who should properly bear the burden of proof based on whether the vestige was a racial imbalance or an achievement gap. This Court is not bound by another district court’s interpretation of the legal analysis. A controlling distinction in the burden of proof analysis is first, whether a defendant has been adjudged to be a constitutional violator, and second, whether an educational vestige was originally identified when liability was found. The Jenkins litigation meets both of these threshold requirements. The State was found to be the primary constitutional violator and “quality education” was identified as a goal of the remedy. As to its Motion for Unitary Status, the State, therefore, has the burden to prove that any achievement gap is not a vestige of the prior discrimination. However, the Court will note at this point that the State’s responsibility has always been limited to the funding of the remedy, not the implementation. It is this distinction that allows the Court to find that while the State may not meet the burden of proof relating to a vestige of the prior discrimination, and is therefore denied unitary status as to the vestige, it is consistent to find the State has done everything practicable to eliminate the vestige because they have adequately funded it.

D. Theories of Vestiges The plaintiffs and the KCMSD both presented evidence concerning the alleged remaining vestiges of the prior de jure segregation. Plaintiffs and the KCMSD contend an achievement gap exists between the test scores of black and white students. Testimony at the hearing often touched on the effect of “low expectations” and the intergenerational effect of segregation upon the achievement gap. The State argues that while an achievement gap exists, it persists throughout the state and the country, and is a product not of race, but poverty. Plaintiffs and the KCMSD also maintain the KCMSD continues to display signs of racial isolation, pointing to the number of schools that still have over a 90% minority enrollment. Finally, the KCMSD charges that what it refers to as a “financing vestige” has never been eliminated. The KCMSD alleges that because voters within the KCMSD have not approved a school tax levy since 1969—“dating from precisely the moment when the school district became majority black”—court supervision cannot be withdrawn until alternative sources of funding are assured.
1. The Achievement Gap While the Supreme Court instructed this Court to “sharply limit” its reliance on the comparison of the students within the KCMSD to “national norms,” Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2045, the witnesses for all parties agreed that, as measured by scores on standardized achievement *1158 tests, a gap exists between the test scores of black and white children within the KCMSD, irrespective of any nationwide comparison. Further, these test scores are the only tools for any historical comparison because that is what the KCMSD has available for analysis. (Testimony of Trent, Tr. at 1275).
Dr. David Armor, the State’s expert, testified that this achievement gap was about 10 normalized curve equivalents (NCEs). (Testimony of Armor, Tr. at 446). Normalized curve equivalents or NCEs explain individual student scores on a normal distribution or bell-shaped curve with 50 NCEs as the median score. The size of the gap between black and white scores has remained fairly constant for the past ten years. Dr. Armor further testified the size of the gap was larger in the higher grades than in the elementary grades. (Testimony of Armor, Tr. at 450; State Exs. 142–45). Dr. Armor performed a statistical analysis of recent test scores in the KCMSD. He found that about 65% of the difference in test scores between black and white children was due to measurable socioeconomic status (SES) differences between black and white families. (Testimony of Armor, Tr. at 456; State Ex. 146).
This phenomenon is not restricted to the KCMSD. All major school districts suffer this test score achievement gap, according to Dr. Armor. The size of the gap nationally is approximately four-fifths of a standard deviation, compared to the gap in the KCMSD of one-half of a standard deviation. (Testimony of Armor, Tr. at 449). This means that the gap within the KCMSD is less severe than the national gap. The national gap measured in NCEs is approximately sixteen, compared to the gap in the KCMSD of ten. A school district operating with a gap between black and white test scores of about 10 NCEs is considered a good school system. (Testimony of Armor, Tr. at 449–50).
Dr. William Trent, an expert witness for the KCMSD, determined that KCMSD students do lag behind nationally in comparisons of test scores, but that after controlling for poverty, family background, and other factors, there is a penalty or “cost” to minority students—a “race effect”—affecting the achievement gap, which has continued without abatement since 1986. (Testimony of Trent, Tr. at 1276–77; KCMSD Exs. 24B–J). Because this Court found that there was a system wide reduction in achievement in the KCMSD, at least partially due to the past segregation, and a gap existed in 1986, Dr. Trent concluded the current gap could also be due to the past segregation. (Testimony of Trent, Tr. at 1277).
Dr. Trent performed a multiple regression analysis on test score data from the KCMSD that analyzed the effect that various factors have on minority student scores on the Iowa Test of Basic Skills (ITBS). Dr. Trent analyzed both the 1994 reading and mathematics scores for students in the fifth through the tenth grades. (Testimony of Trent, Tr. at 1300–09; KCMSD Exs. 24E– J). He concluded that some part of the variance—approximately 4% to 9%—between black and white test scores could be explained by race. (Testimony of Trent, Tr. at 1398). The District suggested that a significant figure to calculate the race effect would be to consider the proportion that the race effect plays in relation to the entire percentage of known and measurable differences. In other words, if Dr. Trent could identify 40% of the factors that effected the NCE score, an important percentage would be the race effect—the 4% to 9%— divided by the total percentage of measurable effects on the NCE score. However, this would ignore the myriad of other effects that Dr. Trent did not analyze: birth weight, whether the student is raised by a single parent, proficiency in English, parental interest and involvement. This list is by no means exhaustive. The more accurate identification is simply the percentage of the achievement gap that may be explained by race.

Teacher efficacy (low expectations) increases this “race effect.” (Testimony of Trent, Tr. at 1364–69). Teacher efficacy refers to the feeling that a teacher has that he or she has the ability to make a difference. If a teacher does not expect achievement from his or her students, then it may not be produced. Using responses from questionnaires of students concerning the expectations of their teachers, Dr. Trent assigned values to particular schools, ranging from one to five—five being highest— which rated *1159 the schools regarding teacher efficacy. Dr. Trent found a positive correlation between schools with high teacher efficacy and higher test scores, as well as the converse correlation. (Testimony of Trent, Tr. at 1340–41, 1348, 1364– 69, 1374; KCMSD Ex. 24K). Using KCMSD Exhibit 24G, the following table represents a summation of the effect that race and teacher efficacy has on student mathematic scores taken in 1994:

GRADE Fifth Grade Sixth Grade Seventh Grade Eighth Grade Ninth Grade Tenth Grade

% Effect of Race 4.2% 7.3% 5.6% 6.2% 7.8% 5.3%

% Effect of Teacher Efﬁcacy 2.8% 2.8% 1.7% 1.3% .7% 0%

The next table depicts the same data for reading scores within the KCMSD (KCMSD Ex. 24H):

GRADE Fifth Grade Sixth Grade Seventh Grade

% Effect of Race 4.3% 7.9% 4.8%

% Effect of Teacher Efﬁcacy 2.5% 4.0% 1.8%

GRADE Fifth Grade Sixth Grade Seventh Grade Eighth Grade Ninth Grade Tenth Grade

% Effect of Race 4.3% 7.9% 4.8% 6.4% 9.2% 8.4%

% Effect of Teacher Efﬁcacy 2.5% 4.0% 1.8% 2.1% 2.2% .7%

The percentage shown identifies the effect that race and teacher efficacy had on the gap between black and white test scores. Dr. Trent performed a series of regression analyses on the test score data and could account for approximately 35% and 40% of the total gap, leaving at least 60% unexplained. (Testimony of Trent, Tr. at 1309).
As Dr. Armor pointed out, not only is there a gap between black and white test scores, this gap increases as KCMSD students proceed through school. (Testimony of Armor, Tr. at 450). Using KCMSD Exhibit 24B for the background data, the following table represents the increase in the gap between black and white students in reading and math scores for the KCMSD. The series of grades in school that the test scores were taken are indicated in parentheses:

CLASS

Increase in Math Gap

Increase in Reading Gap

Class of 1992 (8–12)

1.71

5.46

Class of 1993 (7–12)

2.60

5.86

Class of 1994 (6–12)

9.73

6.46

Class of 1995 (6–11)

8.37

7.96

Class of 1996 (4–10)

6.46

6.95

Class of 1997 (3–9)

4.88

7.36

Class of 1994 (6–12) Class of 1995 (6–11) Class of 1996 (4–10) Class of 1997 (3–9) Class of 1998 (2–8) Class of 1999 (1–7) Class of 2000 (K–6) Class of 2001 (K–5) Class of 2002 (K–4)

9.73 8.37 6.46 4.88 2.63 1.96 3.61 3.45 ( .18)

6.46 7.96 6.95 7.36 2.70 8.01 10.15 4.74 6.76

————— These figures translate into a reality within the KCMSD of black students who not only arrive at school achieving below their white classmates, but also whose separation grows as they attend the KCMSD. In other words, while the gap between black and white test scores is in place when a kindergarten student enrolls in the KCMSD, ranging from between four and eleven NCEs, by the time that student has reached the fifth or sixth grade, the gap has increased by an amount ranging from between three and a half to as many as ten NCEs. While the size of the increase varies from class to class, in only one instance does it narrow. The increase in the achievement gap appears to be less severe in the scores for mathematics compared to the reading scores. Dr. Armor also testified, however, that the increase in the achievement gap that occurs as a student moves through school is a national trend as well. (Testimony of Armor, Tr. at 450–51). According to Dr. Trent, many factors influence the increased size of the gap as students move through the higher grades. (Testimony of Trent, Tr. at 1290–91). These factors include the change of the mix of students who take the test, as well as changes in students’ performance from year to year. The gap increases, however, at all grade levels tested except one: the mathematic scores from the kindergarten to fourth grade. The gap actually decreased a small amount (.18) in the comparison of these grade levels.
In another comparison of black and white gains within the KCMSD, black students *1160 gain on average only 1.1 grade equivalents in reading skills in the four years of high school, compared to the average white gain of 3.4. (State Ex. 154). Central High School and East High School registered no increase at all in grade equivalents in reading for black students. A black student in those two high schools exits with his or her diploma and the same skill level in reading as when they entered as a freshman. Black students fare somewhat better in mathematics. An average black student in the KCMSD increases 2.1 grade equivalents for the four years of high school, while a white student increases by 3.5 grade equivalents. Id.
The State attempted to use other evidence to demonstrate the educational achievement of KCMSD students. Dr. Armor testified both about the differences in dropout rates between black and white students and college attendance plans. The unreliability of the statistics that Dr Armor used, however, casts a shadow upon their usefulness. Therefore, the Court will not consider that data.

a. Low Expectations
Much of the plaintiffs’ and KCMSD’s case focused on their allegation that teachers in the KCMSD have “low expectations” for black students. Plaintiffs argued that state-mandated segregation led to the view that blacks were inferior learners and less capable students. As the black population increased in the District and black students enrolled in schools that had been previously nearly all white, many whites moved out. Jenkins, 593 F.Supp. at 1494. As white students abandoned the formerly all-white schools, the KCMSD further weakened the course offerings in the schools they left, compounding the distinction between black and white schools and adding substance to the general view that schools with black students were inferior to schools with primarily white students. Stipulation, February 21, 1984 at n. 75. This created a spiraling effect that diluted learning and resulted in a characterization of the KCMSD as offering lowered educational opportunities.
The plaintiffs and the KCMSD offered witnesses who claimed these vestiges of “low expectations” lead to poor performance by black students on standardized achievement tests. Using a 1995 KCMSD survey of students, Dr. William Trent assigned an efficacy rating to each school, which resulted in a rating between 3.30 and 4.20, with the median value being 3.66. (Testimony of Trent, Tr. at 1345, 1350). Dr. Trent defined efficacy as a teacher’s feeling that he or she could make a difference in a child’s achievement. (Testimony of Trent, Tr. at 1279). He then concluded that higher efficacy seemed to be correlated with higher achievement and low efficacy seemed to be correlated with lower achievement. (Testimony of Trent, Tr. at 1279–80, 1352). According to Dr. Trent, lower expectations of minority students at least partially cause the increase in the achievement gap as a student moves through the higher grades. (Testimony of Trent, Tr. at 1291). Dr. Trent submitted data that the Court used to create charts that show the “efficacy effect” on KCMSD students’ test scores, supra, under the discussion of the achievement gap.
Much of the rest of the evidence concerning low expectations and low teacher efficacy was anecdotal. Several KCMSD witnesses testified that teachers evidenced “low expectations” by allowing students in the classroom to remain “offtask.” (Testimony of J. Williams, Tr. at 1225; Testimony of Love, Tr. at 1479–81). Off-task activities included sleeping, sitting idle, and inattentiveness to classroom lessons. (Testimony of Love, Tr. at 1479–80). Low expectations also manifest themselves in the assignments students are given. Rather than foster creative interaction with the students, many teachers assign worksheets for the students to complete in the classroom. (Testimony of Love, Tr. at 1479). Several students testified they were not aware of “low expectations” from their teachers, although many spoke of non-challenging class work and little homework. Almost all of the students complained of being given only worksheets to fill out in class. One school lacked the supply of books necessary to allow the students to take their books home. (Testimony of Banks, Tr. at 2812; Testimony of Holt, Tr. at 2822, 2829; Testimony *1161 of Oulds, Tr. at 2828–29; Testimony of Cunningham, Tr. at 2831–32, 2838).
Dr. Eric Cooper, a KCMSD expert, testified that he visited two KCMSD schools in connection with his expert analysis in this case. (Testimony of Cooper, Tr. at 1868–71 ). He saw no evidence of low expectations at either school. Instead, he observed students “engaged in collaborative experiences” at one school and “committed teachers and a committed principal” at the other school he visited. (Testimony of Cooper, Tr. at 1868, 1871). To the extent some teachers in the KCMSD may have low expectations for their students, such expectations typically arise out of teachers’ sincere frustrations at their inability to help students learn and not because of discrimination or racism. (Testimony of Cooper, Tr. at 1872). Dr. Cooper testified that the problem of low expectations is a national problem that exists in all urban school districts and to the extent low expectations exist in the KCMSD, Dr. Cooper admitted the problem is no worse than it is elsewhere. (Testimony of Cooper, Tr. at 1871– 72).
b. Intergenerational Effect
While all students can learn to high degrees of success, they do not all begin at the same starting line. (Testimony of Bartman, Tr. at 3113). Family income and educational attainment have important educational effects on children. (Testimony of Armor, Tr. at 280; Testimony of Hanushek, Tr. at 831–32). These factors affect what is in the “tool box” students bring to school. (Testimony of Rainwater, Tr. at 2412, 2414). They influence the readiness of children to learn, the breadth of their experiences, and their pre-school ability to read (Testimony of Rainwater, Tr. at 2414).
Dr. David Armor testified that a student’s socioeconomic background (SES) determined the size of the achievement gap between test scores of black and white students. (Testimony of Armor, Tr. at 506). Plaintiffs, however, argued that the parents’

low SES was itself caused by both the effect of the dual housing market within the KCMSD and the parents attendance at de jure segregated schools in the KCMSD. (See Testimony of Hanushek, Tr. at 828–30). Continuing down that path of logic, any low achievement of their children, therefore, caused by low SES was itself a direct result of prior de jure segregation in the KCMSD.
Plaintiffs attempted to link the prior state-sanctioned discriminatory practices within the housing market to the low wealth and income of blacks residing within the KCMSD. Racial discrimination affects wealth distribution in that a significant portion of family wealth consists of equity in the home. (Testimony of Hanushek, Tr. at 829). As a result of the State’s housing market discrimination, large numbers of blacks were denied the opportunity to own a home. As a result of the dual housing market in the KCMSD, not only were blacks less likely to be homeowners, but those blacks who were homeowners achieved much less appreciation in their homes during subsequent periods of inflation, in the 1970s and early 1980s. (Testimony of Hanushek, Tr. at 830).
Additionally, plaintiffs presented evidence to connect KCMSD parents’ attendance at segregated schools to the low achievement of their children. Dr. Robert Crain conducted an extensive survey in which he collected data concerning the parents of KCMSD students and characteristics of their households. (Testimony of Crain, Tr. at 2090–91). The survey included information on the parents’ income, education, whether they attended segregated or integrated schools, and details about their home life. One analysis of a larger sample included parents who had attended segregated schools, but not necessarily within the Kansas City Missouri School District. A smaller sample contained parents who had attended segregated schools only within the KCMSD. (Testimony of Crain, Tr. at 2194–95). Dr. Crain matched the survey results of parents’ background and home life with the child’s achievement test scores. (Testimony of Crain, Tr. at 2117). In the analysis performed on the larger sample survey results, which included parents who had attended any segregated school, Dr. Crain found the following statistically significant: it was less likely that the *1162 parents would read, that the child would read, or that there would be a computer with a modem in the home than those parents who had attended integrated schools. (Testimony of Crain, Tr. at 2125; Plaintiffs Ex. 40–S). In the analysis conducted on the smaller sample—those parents who had attended only KCMSD segregated schools—statistics revealed a significant relationship between a KCMSD parent who had attended a KCMSD segregated school and their child performing poorly on specific mathematics standardized tests. (Testimony of Crain, Tr. at 2194–96; Plaintiffs Ex. 40–R). This result was obtained, however, when using KCMSD records of the racial composition of schools, not the individual parent’s recollection of the racial make-up of the school they attended. (Testimony of Crain, Tr. at 2117).
c. Curriculum and Other Deficiencies
Both the plaintiffs and the KCMSD presented a multitude of evidence concerning problems which exist within the KCMSD. Many KCMSD teachers, principals, and central administrators admitted that the District has had no district-wide core curriculum specifying what all students should know and be able to do. (See, e.g., Testimony of Norby, Tr. at 1127, 1129, 1200; Testimony of Mahone, Tr. at 1739–40; Testimony of Ramsey, Tr at 3180–81; Testimony of Love, Tr. at 1520; Testimony of Rainwater, Tr. at 2443; Testimony of J. Williams, Tr. at 1228–29). Only recently has the KCMSD implemented its newly developed core curriculum in a few schools, with full implementation to be in place in three to five years. (Testimony of Norby, Tr. at 1149). Similarly, learning in the KCMSD suffers because of the uneven quality of instruction. KCMSD teachers range from very good to very poor and there are far too many mediocre and poor teachers. (Testimony of Love, Tr. at 1554; Testimony of Ramsey, Tr. at 3187). General professional development efforts in the KCMSD have been without a district focus, often without even a building-level focus. (Testimony of Cooper, Tr. at 1784–86, 1801–09; Testimony of Norby, Tr. at 1115, 1117; Testimony of Mahone, Tr. at 1728). Teachers need to incorporate a wide variety of assessment tools in their classroom practice that will help them determine the level of individual learning so that they can understand each student’s strengths and needs. (Testimony of Rainwater, Tr. at 2424). These assessment tools provide each student with the learning experiences needed in order to master the curriculum and become a participating citizen with a family-sustaining job. (Testimony of Rainwater, Tr. at 2423; Testimony of Cooper, Tr. at 1784).
d. Analysis of Unitary Status: The Achievement Gap
[3] At the outset, the Court notes the awkward posture that the KCMSD has assumed. Basically the KCMSD has placed itself

in the role of arguing that it is an ineffective school district, compared to the ordinary school district that touts its accomplishments at a unitary status hearing. This is viewed by the Court as an obvious attempt to keep in place the courtordered tax levy. There is absolutely no basis under the law that the Court can sustain imposition of that levy simply because the alternative would result in “fiscal chaos.” See Jenkins III, 515 U.S. at ––––, ––––, 115 S.Ct. at 2054, 2056 (mandating that a district court’s responsibility is to return schools to local control as soon as practicable so that true accountability within our governmental system may be restored); Freeman, 503 U.S. at 489, 112 S.Ct. at 1449 (same); Arthur v. Nyquist, 904 F.Supp. 112, 118 (W.D.N.Y.1995) (denying plaintiff’s request for the court to retain control of the school system solely for the purpose of ensuring continued funding).
[4] The Court’s task, following the mandate in Jenkins III, is to restore state and local control as soon as possible, and if the KCMSD has not achieved unitary status, identify the incremental effect that the prior discrimination had on the achievement gap. Jenkins III, 515 U.S. at –––– – ––––, 115 S.Ct. at 2055–56. Further, Jenkins III requires that the Court give the District a precise statement of its obligations in the remedial effort to cure the effects of the prior discrimination. Id. at ––––, 115 S.Ct. at 2055.
*1163 [5] There is no dispute between the parties that an achievement gap exists between black and white test scores. The question the Court must focus on is the cause of the gap. The State maintains the gap is explained by socioeconomic factors: 65% by factors whose effects can be measured, with the remaining portion attributable to unmeasured or unmeasurable socioeconomic factors. First, KCMSD and the plaintiffs argue that while socioeconomic status plays a role in the achievement gap, so too does race. KCMSD’s expert identified a 4% to 9% “race effect” factor in his analysis of the achievement gap. Further, plaintiffs advance the notion that because race influenced the determination of socioeconomic status by affecting the parents who attended segregated schools—the so-called intergenerational theory—therefore by extension that prior discrimination affects the achievement gap of their children. Another argument advanced by both the plaintiffs and the KCMSD centers around the perceptions of KCMSD teachers. The plaintiffs and KCMSD contend that some teachers in the KCMSD have lowered expectations for minority students, thus lowering those students’ achievements. Finally, plaintiffs and the KCMSD point to a plethora of factors that make “quality education” presently unattainable in the KCMSD schools. The Court will discuss each of the above factors on achievement and the achievement gap in reverse order.
First, plaintiffs and the KCMSD set forth deficiencies within the KCMSD. These include a lack of a core curriculum, uneven quality of teachers, a sustained district-wide focus on professional development, and a failure to implement a variety of assessment tools. The Court believes that each of these are important to the growth of achievement overall, but does not necessarily involve the reduction of the achievement gap between black and white test scores. These deficiencies relate only peripherally to an achievement gap. Instead, these factors constitute the building blocks of a good school system, which admittedly, the KCMSD is not. Improvements in those areas will influence the achievement of all students, and in the process will affect the gap between black and white students. The Court does not believe these deficiencies can be tied to the prior discrimination that occurred thirty years ago. In a later section, however, the Court will discuss the need for a focus on education and achievement and a move away from the top-heavy administration in the KCMSD.
Second, addressing plaintiffs’ intergenerational theory: nationwide, in 1995, over 29% of blacks lived below the poverty line, compared to only 11% of whites. JULIE A. NICE & LOUISE G. TRUBEK, CASES AND MATERIALS ON POVERTY LAW 9 (1997). This means that if you are born black, you stand more than two and a half times greater chance than a white person to live in poverty. It is a dismal legacy that in this country, you are much more likely to be poor if you are a member of a minority. Further, once in poverty, escape is mired by too few jobs and in many cases, a substandard education. Perhaps no decision delivered by the Supreme Court has had such a far-reaching societal effect as its pronouncement that in America, children are not entitled to an equally-funded education but simply a public one. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Children of poor parents live in poor neighborhoods and attend poor schools, staffed by teachers who make less, make do with less, and, some of the time, teach less. Dropout rates escalate, as do crime rates. The cycle of poverty continues if not momentarily broken by the drug culture, or alternatively, prison time However, these societal woes fall outside the jurisdiction of this Court. As shamed as we all should be of the condition of some of our nation’s cities and schools, this Court may attempt to remedy only a constitutional wrong, as interpreted by the Supreme Court.
Next, the Court turns to the plaintiffs’ and KCMSD’s theory of the allegedly “low expectations” (or “low teacher efficacy”) of the KCMSD teachers regarding black students. Some of the most appalling testimony this Court heard during the threeweek hearing on these motions was the admission of some members of the KCMSD administration that *1164 they had witnessed students who simply filled out a worksheet during class time, as well as students sleeping in class. It is beyond

belief to this Court that these administrators took no action upon witnessing these classroom behaviors. The State suggests in their post-hearing briefs that this low expectation theory came late in the day to the plaintiffs and the KCMSD and the witnesses contradicted their prior deposition testimony at the hearing. Whether true or not, let the Court say distinctly that low expectations have no place in a school system. Every child can learn, and it is the mission of educators to achieve that goal. An impoverished student, whether white or black, deserves more concentration and focus, not less. How can this society ever hope to remedy the societal ills of abject poverty without the help of educators? That it may be difficult is not the issue. Of course it will be difficult. But elusive goals are not necessarily unattainable goals.
Concerning the effect of low expectations on the achievement gap, low expectations of teachers, which manifests itself in lowered academic standards, academic challenges stripped from already disadvantaged students, contacts with teachers minimalized, and bare rote memorization as well as only tedious completion of worksheets, deny students—all students—a quality education. To qualify for a remedy from this Court, however, it must be connected to the prior de jure discrimination. Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2056.
Only Dr. Trent’s analysis statistically supports the conclusion that teacher efficacy increases the “race effect” on the achievement gap. In the chart that the Court prepared, the increase in the achievement gap between black and white students caused by low teacher efficacy ranges between 2% and 4%. When Dr. Trent initially isolated the race effect on the achievement gap, he found that race decreased the students’ NCE scores by between 8.8 and 13.1 points. The other factors Dr. Trent identified all reduced the effect of race on the achievement gap. In other words, for each additional variable introduced in the analysis, the gap became smaller. However, when Dr. Trent ran the analysis using his efficacy rating, that variable caused an increase in the gap. The Court finds that the increase in the achievement gap of 2% to 4% due to teacher efficacy can be shown to be related to the prior discrimination.
Finally, concerning the existence of an achievement gap, the Court notes that these gaps exist across the country: in prior segregated school districts and districts that have not discriminated against minority students. As many witnesses testified, poor students come to school with fewer skills. As well as suffering an initial disadvantage, the environment at home to which these students are subjected also negatively impacts their educational experience. That is exactly why the school district has to put forth more effort, not less. Dr Trent’s regression analysis, however, demonstrated that race does negatively affect the test scores of minority students. A minority student reduces his NCE score by a range of some 4% to 9% simply by being born a particular race, unrelated to SES.
As the Court discussed earlier, regarding its motion for unitary status, the State bears the burden of showing this effect is not causally related to the prior discrimination. Only in school districts that have already been declared unitary does the burden shift to the plaintiffs. The Court finds that Dr. Trent’s test is reliable and accurately identifies the incremental portion attributable to the prior de jure discrimination. Race, by itself, reduces a black student’s test score by 4% to 9%. Low expectations increase the achievement gap by 2% to 4%. Combining these incremental portions, using the high end of the range for both factors—race and teacher efficacy—the total “race effect” amounts to 13% of the achievement gap.
Further, the increase in the gap needs consideration. While minority school children arrive at school without the necessary skills for high achievement, the gap between blacks and whites increases while they are students within the KCMSD. As the Court discussed earlier, this gap grows from as little as three and a half to as large as ten *1165 NCEs. The Court cannot say for certain that the same factors that play a role in the original gap do not influence the increase in the gap as well. It seems reasonable to this Court that the “race effect” plays just as substantial a role in the increase that it did in creating the original gap.
Therefore, to sum up, the original gap between black and white test scores is approximately ten NCEs. The increase in the achievement gap at the high end is approximately ten NCEs. The Court has found that 13% of the initial gap and 13% of the increase in the gap may be traced to the prior discrimination within the KCMSD. This translates into a mandate to the KCMSD to reduce the achievement gap by 2.6 NCEs. Further, as discussed later in this opinion, this task is to be completed within three years. The Court finds that the KCMSD has not currently attained unitary status regarding the achievement gap.

2. The Green Factors

a. Student Assignments (Racial Isolation Vestige)

[6] Dr. Christine Rossell reviewed the success of the KCMSD in reducing the number of either predominantly minority or white schools. The number of schools with enrollments greater than 90% minority have been reduced from 25 in 1986 to 16 in 1996. (State Exs. 10b, 50). Minority enrollment at four high schools, two middle schools, and ten elementary schools exceeds 90%. Dr. Rossell testified that this number is not likely to decrease further because of the approximately 80% minority enrollment of the KCMSD. (Testimony of Rossell, Tr. at 88; State Ex. 8). Dr. Michael Stolee, an expert for the KCMSD, confirmed that, given the constraints of the District’s demographics, further efforts at achieving a better racial balance would be impractical. (Testimony of Stolee, Tr. at 1993). Within the boundaries of the KCMSD, the District contains a central area with a high percentage of minority residents. As this central core of heavy minority population expanded, so too did the number of minority schools. (Testimony of Clark, Tr. at 1010–13: State Exs. 116–18). Using 1990 census data, one witness reported that the proportion of the city which is less than five percent minority has decreased to about a third, compared to the approximately two-thirds it comprised in 1970. (Testimony of Clark, Tr. at 1010). This expansion of a central core of heavy minority residential area makes it difficult to alter the racial composition at the traditional elementary schools which lie within that area. (Testimony of Clark, Tr. at 1021).
White enrollment for the District has steadily declined since 1967, although at a much lower rate in recent years, while minority enrollment has remained fairly constant since 1979, and increased in recent years. (State Exs. 3a, 4, 5). The number of schools whose enrollments contained greater than 50% white students dropped from 17 schools in 1986 to only two in 1992. Beginning in 1993, the enrollment of every school in the KCMSD has been at least 50% minority. (State Ex. 9).
With regard to the level of desegregation achieved, Dr. Rossell relied on two indices commonly used by social scientists. The Court notes, however, that these compare only averages, not the success or failure of desegregation at individual schools. An aggregate often presents a different picture from its parts. The interracial exposure index measures the average percent white enrollment in the typical minority child’s school. Its maximum value is the percent white in the entire school system—about 20 in the KCMSD. (Testimony of Rossell, Tr. at 91–92). Dr. Rossell testified that the value of the index was almost at its maximum value for all schools, as well as for each grade level. (State Exs 3a, 6) The other evaluation used by Dr Rossell to determine the level of desegregation is called the racial imbalance index. The lower the index value—a number from zero to one hundred—the more racial balance achieved by that district. (Testimony of Rossell, Tr. at 94–95). Dr. Rossell testified that the index for all schools in the KCMSD was approximately 30, which, when compared to other school districts under court order, was relatively low, indicating a *1166 high degree of racial balance had been realized. (Testimony of Rossell, Tr. at 97– 98; State Ex. 14). Dr. Rossell believed it would be counterproductive to mandatorily reassign children to achieve any greater balance because that would result in the loss of white enrollment as white students reacted negatively to the mandatory assignments. (Testimony of Rossell, Tr. at 107). This, in turn, would result in less interracial exposure and less desegregation. (State Exs. 55a, 55b).
The KCMSD maintains the current racial balance is unknown. The elimination of racial isolation within the KCMSD has been achieved by an aggressive system of magnet schools, which in part relied on the voluntary transfer of suburban students. (Testimony of Stolee, Tr. at 1993). The Supreme Court disapproved that portion of the remedial plan which sought to attract suburban white students in order to eliminate racially identifiable schools within the KCMSD. Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2051. Schools lost significant enrollment of white suburban students in the 1995–96 school year after the District ceased providing transportation for those students because of the Supreme Court decision. Thus, the KCMSD contends the District is in a stage of transition and unable to assess its racial composition until the full ramifications of the withdrawal of the suburban students is known. East High School lost approximately 20 white suburban transfer students following the Supreme Court’s ruling in Jenkins III. (Testimony of Maricle, Tr. at 3042). Further, after decreasing steadily over the last few years, the racial imbalance index used by Dr. Rossell shows an increase in 1996 across both elementary and secondary schools. (State Exs 10a, 34a, 42a). Dr. Rossell opined that significant changes in white enrollment from resident white students within the KCMSD are not likely to occur now if they have not occurred before. (Testimony of Rossell, Tr at 278).
The uncertain status of the available revenues for the District further complicates the analysis of the racial isolation vestige. The KCMSD will not be able to support and maintain the present magnet system because it is too costly, considering fiscal realities. (Testimony of Stolee, Tr. at 1995). According to Dr. Stolee, the KCMSD must develop and implement a student assignment system that focuses exclusively upon pupils residing in the District, achieves a substantial measure of racial balance in as many schools as possible, and can be accomplished at a cost which can be sustained through the District’s anticipated revenues, even if those revenues are based only on the state-minimum tax levy of $2.75. (Testimony of Stolee, Tr. at 1993–94). Dr. Stolee concluded that within a two- to three-year period, the KCMSD can be reorganized in a way that will save many millions of dollars in staffing costs, transportation costs, and program expenses without sacrificing all of the gains which the KCMSD has made in eliminating racial isolation. (Testimony of Stolee, Tr. at 2009–10).

b. Faculty and Staff Assignments
Dr. David Armor, an expert testifying for the State, conducted an analysis of faculty assignments for school years 1992–93 through 1995–96 to determine if a pattern of racial discrimination existed in the assignment of faculty within the KCMSD. Using a plus or minus range of 15%, Dr. Armor concluded the KCMSD had maintained a substantial degree of racial balance in faculty assignments. In other words, he sought to determine that the number of minority faculty assigned to particular schools did not vary more that 15% from the number of minority students within the District as a whole. During the four years he investigated, 90% to 95% of all secondary schools fell within the plus or minus 15% guideline and 72% to 85% of the elementary schools met the guideline. (State Ex. 132). However, the elementary schools showed a steady decline from a high of 85% of schools in 1992–93 falling within the guideline, to only 72% in 1996.
c. The Remaining Green Factors
No one can doubt the excellence of the current KCMSD school facilities. While some renovation work remains incomplete at a few schools, the KCMSD still enjoys almost unequaled physical resources. The plaintiffs charge, however, that while the buildings *1167 have been completed, many of the magnet programs have not been fully and effectively implemented. At least fifteen magnet schools within the KCMSD were not fully implemented in full compliance with the orders of this Court. To arrive at this figure, plaintiffs have compared the magnet schools to the Long Range Magnet Plan (LRMP). Sharon LePage, the DESE Director of Desegregation Services, testified however, that all magnet themes have been in place since at least 1991 with the exception of Elementary II, a new Montessori school, only ordered in 1993. (Testimony of LePage, Tr. at 306–08; State Exs. 51, 68A–C). Dr. Christine Rossell testified that during her career, she had inspected hundreds of magnet schools. After her inspection of some of the KCMSD magnets, she testified that the facilities and resources devoted to the KCMSD magnet programs surpassed by far any other program she had ever seen. (Testimony of Rossell, Tr. at 139).
To determine any possible inequitable distribution of funding and teacher resources, Dr. David Armor analyzed data for two recent school years, 1994–95 and 1995–96. Because the traditional elementary schools are predominantly minority, while the magnet elementary schools tend to have a more integrated enrollment, Dr. Armor compared the distribution of teacher resources at the two types of schools. For both school years, he found no significant differences in teacher assignments disfavoring the predominantly minority traditional schools with respect to the years of teaching experience, the degree of teacher education, or the student-pupil ratio. Concerning the equality of funding, Dr. Armor determined approximately $500 to $600 more per pupil was spent at the magnet elementary schools, but this amount was within the normal range of extra funding required for magnet schools. (State Exs. 137–39).
Because all secondary schools are magnet schools, Dr Armor compared the allocation of’ resources at schools with an enrollment of over 90% minority students with those at the schools with less than a 90% minority enrollment. He found no significant differences that disfavored the over 90% minority schools. In 1994–95, the over 90% minority schools had more experienced teachers, more teachers with master’s degrees, and lower pupil-teacher ratios. (State Ex. 134). With regard to funding, the schools with enrollments greater than 90% minority spent slightly more on instructional salaries, instructional supplies, and total operational funding, although the differences were not significant. (State Exs 137–39).
Both former and current KCMSD officials testified there was no discrimination in the provision of transportation and extracurricular activities in the KCMSD. (Testimony of Newsome, Tr. at 2575; Testimony of Rainwater, Tr. at 2459; Testimony of J. Williams, Tr. at 1213–14; Testimony of Love, Tr. at 1538).
d. Analysis of Unitary Status: The Green Factors
The remedy of desegregation in the KCMSD relied heavily on voluntarily attracting white students from the surrounding area. Beginning in 1990, the non-resident enrollment of white students had climbed constantly until the outcome of the litigation over the increase in salaries and the “quality education” components of the remedy—Jenkins III—prompted a decrease in 1995 enrollment. The Supreme Court decreed that it was not within this Court’s equitable power to order

programs designed to promote “desegregated attractiveness” that would voluntarily attract non-resident white students. Before Jenkins III, the enrollment for non-resident white students reached a high of 1476 students. (State Ex. 3a). In 1995, this figure decreased by 636 students and in 1996, enrollment of non-resident white students dropped by 840 additional students.
The full ramifications of the withdrawal of 1476 white students cannot be judged at this time. The Court, therefore, finds that the KCMSD has not yet achieved unitary status with regard to the racial isolation vestige. However, the Court believes that it will take only a three-year period to assess the effect of Jenkins III on the minority enrollment within the KCMSD.
*1168 Regarding faculty and staff assignments, the Court notes the testimony of the State’s witness, Dr. David Armor, who analyzed the KCMSD data. He testified that in recent years the number of elementary schools falling within the plus or minus range of 15% has decreased steadily. No matter which party carries the burden of proof, the steady decline at the elementary school level of a balanced faculty warrants further investigation. Additionally, applying the test from Freeman, retention of judicial control is necessary to allow the Court flexibility to achieve compliance in other areas, such as reducing expenditures. The Court finds that the KCMSD has not yet achieved unitary status as to faculty assignments. However, the Court also believes that the KCMSD should be able to remedy this defect in a period of three years. The Court orders the KCMSD to attempt to achieve by all practicable measures, a plus or minus range of 15% in faculty assignments at 80% of the elementary schools in the District.
Finally, regarding the other Green factors, the Court believes that no remedy plan can be set in concrete. In a desegregation effort, especially a voluntary one such as that of the KCMSD, the plan must offer some flexibility. Some programs may simply not work. It would not be in the best interests of the KCMSD for this Court to declare that unitary status may not be achieved unless every minute detail of the magnet schools as originally conceived is in place. Some magnet themes may not achieve the gains originally forecast. Budget constraints may force consolidation. Improvements in themes could always be identified, so that unitary status could never be attained. The standard required by the Supreme Court only asks that everything practicable be achieved. No one can ignore the improvement in the facilities of the KCMSD. This work is almost complete.
The Court will withhold the declaration of unitary status as to the facilities until the final renovations are completed. The Court, however, believes that this may be achieved in a relatively short time, certainly less than the three year mark that the Court has set for the other factors. Therefore, the Court orders the KCMSD to finish the facilities upgrade within a period of two years. Further, the Court realizes that during this transition phase, while the KCMSD learns to stop relying on others for funding, some modifications will have to be made. Dr. Stolee testified that he advised combining certain magnet programs and discontinuing others. (Testimony of Stolee, Tr. at 2004–13). The Court realizes this is a necessity and orders the KCMSD to assess what combination of magnet themes should be utilized in the future to produce the best results within the fiscal realities. The Court orders the KCMSD to prepare a transition plan for submission to the Court by August 15, 1997.
Finally, the Court will address the issues of transportation and extracurricular activities: plaintiffs argue that transportation is crucial to the ability to redistribute students throughout the District. Neither the plaintiffs nor the KCMSD object to any remaining distributional inequalities in the area of extracurricular activities.
The Court agrees with the plaintiffs that the area of transportation may not be declared unitary at this time because the vestige of racial isolation remains. Transportation plays an essential role in achieving racial balance. Until that vestige has been eliminated to the extent practicable, the Court cannot relinquish its jurisdiction of transportation. Further, transportation in the KCMSD is one of the most costly elements in the budget. The Court may have to oversee transportation costs in the future. Regarding the State’s motion for unitary status concerning extracurricular activities, however, the Court believes the State has carried its burden of proof. The adverse parties seem to agree no vestiges remain in the resources spent on these activities. The Court will deny unitary status as to transportation, but will grant unitary status as to extracurricular activities.
3. The “Financial Vestige” The basis for this new theory of a remaining vestige from the prior discriminatory *1169 conduct has its roots in the KCMSD’s need for money. As discussed earlier, the KCMSD operates under a court-ordered tax levy of $4.96. Taxpayers of Kansas City last voted a tax levy increase in 1969. (KCMSD Ex. 27). The KCMSD first became a majority black district in 1969—the precise moment when voters stopped approving tax levies and bond issues. Those tax and bond issues had received a higher percentage of votes in support of the measure in black voting wards. See Jenkins v. Missouri, 855 F.2d 1295, 1305 n. 7 (8th Cir.1988). The KCMSD charges that the actions of the State precipitated an atmosphere “which

prevented the KCMSD from raising the necessary funds to maintain its schools.” (KCMSD’s Post–Hearing Brief at 40). According to the KCMSD, by helping to perpetuate the dual system, the State contributed to the public’s perception that the KCMSD was an ineffective school district.
The Court notes again it is not the duty of this Court to ensure funding for the KCMSD. That responsibility falls on the residents of the KCMSD or the state of Missouri. The KCMSD argues this Court stopped just short of finding this “financial vestige” in the Order setting forth the funding responsibilities for the capital improvement program. See Jenkins v. Missouri, November 12, 1986 Order at 4. The KCMSD further maintains the Eighth Circuit affirmed this vestige in its opinion reviewing that Order. See Jenkins, 855 F.2d at 1305. However, the comments the Eighth Circuit made in that opinion referred to the justification for requiring the State to fund 75% of the remedy ordered by this Court. Further, the KCMSD quoted language actually advanced by plaintiffs in a brief submitted to the Eighth Circuit. The Eighth Circuit did not issue that language as its own. The Court rejects this theory as constituting any part of the remaining vestige of the prior discrimination.
IV. The Agreement
[7] The Agreement provides for payment of $314 million from the State to the KCMSD over a three-year period. Some of the funds due under the Agreement have already been paid for Fiscal Year 1997. The Agreement provides further details regarding the payment of the remainder of the funds, and the State acknowledges that the actual payments will amount to an approximate total of $320 million because of increased funding ordered by the Court in its July 15, 1996 Order.
The State maintains it has fulfilled its remedial obligations due to its prior unconstitutional conduct and that the Agreement provides ample transition funds while the KCMSD becomes self-sufficient. The State further argues it has provided sufficient funds over the last eleven years to the KCMSD with which the KCMSD should have been able to implement programs to eliminate the vestiges of the prior discrimination.
The AFT recognizes the Agreement will provide for transition funding while the KCMSD searches for replacement revenue. While noting that endorsing the Agreement was a difficult decision, the AFT believes that the benefits outweigh the risks associated with approval of the Agreement.
The KCMSD posits that elimination of the constant litigation will enable the KCMSD to concentrate on removing the final vestiges of the prior segregation. Additionally, the KCMSD asserts that the Agreement will ensure more funding than the KCMSD could reasonably expect to gain from further litigation. “The Agreement offers the District more funding than could be obtained through continued litigation....” (KCMSD’S Post–Hearing Brief at 2). Approval of the Agreement will foster increased cooperation from the State rather than the continual litigious nature of the relationship in the past. In considering programs to advance the goals of the KCMSD, the State can focus on the benefits of the program without considering that they will be responsible for the funding.
The plaintiffs present several arguments against the proposed Agreement: (1) the State should not be allowed to “purchase its way out of its obligations as the primary constitutional violator” (Post–Trial Memorandum of Plaintiffs in Opposition to the Motions for Unitary Status and for Approval of *1170 the May 21, 1996 Agreement at 3); (2) approval of the Agreement would be procedurally improper because the plaintiffs cannot be bound to a contract to which they were not a party; (3) the Agreement is beyond the authority of the Court to approve because it cannot affect the matter in issue and is not a justiciable controversy (id. at 10–13); and (4) even when viewed as alternative remedy plan, approval of the Agreement would be procedurally improper because the State has never properly pled an action for declaratory relief pursuant to Rule 8 of the Federal Rules of Civil Procedure. (Id. at 14–15).
In Jenkins III, the Supreme Court provided guidance on the issue of releasing the State from further desegregation obligations. First, it directed this Court to “consider that the State’s role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs.” Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2055. Further, Jenkins III appraised the remedy ordered by this Court for the KCMSD:
The District Court also should consider that many goals of its quality education plan already have been attained: the KCMSD now is equipped with “facilities and opportunities not available anywhere else in the country.” KCMSD schools received an AAA rating eight years ago, and the present remedial programs have been in place for seven years. It may be

that in education, just as it may be in economics, a “rising tide lifts all boats,” but the remedial quality education program should be tailored to remedy the injuries suffered by the victims of prior de jure segregation. Minority students in kindergarten through grade 7 in the KCMSD always have attended AAA-rated schools; minority students in the KCMSD that previously attended schools rated below AAA have since received remedial education programs for a period of up to seven years.
Id. at ––––, 115 S.Ct. at 2056 (internal quotations omitted).
The State presented evidence concerning the level of desegregation funding in Kansas City compared to other school districts, as well as the level of State spending compared to other states. Dr. Eric Hanushek, a professor of economics at the University of Rochester, testified that after adjusting for regional cost of living differences, the KCMSD spends more per pupil than any of the largest 280 school districts in the United States. (Testimony of Hanushek, Tr. at 768; State Ex. 164). While the KCMSD reported spending $8316 per pupil in the fall of 1993, when adjusted for cost of living—which standardizes the amount spent in districts across the country by what purchasing power those dollars actually have—that amount increased to $8990. When unadjusted for the cost of living, the KCMSD still ranked ninth out of the 280 largest districts with a per-pupil expenditure of $8,316 compared to the average of $5,095.
If Kansas City receives the $320 million from the Agreement and equalizes spending over a five-year period, the KCMSD would still rank as one of the top ten spending school districts in the nation. (State Ex. 174). Even if the KCMSD lost all State desegregation funding, the KCMSD would remain in the top 25% of the largest school districts with regard to the amount it would be able to spend on each pupil.
The KCMSD presented evidence that the transition funding provided under the Agreement would be sufficient to allow a systematic and orderly transition period during which the KCMSD could become self-sufficient and independent from State desegregation funding. Dr. John Murphy, a former superintendent of schools in both Prince George’s County and Charlotte– Mecklenburg, testified that if the Agreement was approved, the KCMSD would have approximately $6,000 per pupil to spend per year. (Testimony of Murphy, Tr. at 1941). This amount would provide the KCMSD sufficient funds not only to offer a quality education, but also to make the curriculum and other reforms necessary to improve student achievement. (Testimony of Murphy, Tr. at 1903, 1940—42). Strategies for success in the KCMSD, however, must be designated for priority needs. Id. Dr. Murphy accomplished similar goals in *1171 Prince George’s County while spending only $5405 per pupil in 1993–94, compared to the KCMSD’s per pupil expenditure of $8,316. (State Ex. 184).
The KCMSD provided further evidence of its ability to reduce its expenditures by presenting a transition plan which would close several high schools. The KCMSD currently operates magnet programs in each of the ten regular high schools. These ten high schools have seats for 15,969 pupils, but enroll only 7,680 pupils. (Testimony of Stolee, Tr. at 1996). Some schools that are now operating below 50% capacity could absorb other magnet programs. The “capacity” of a school equals the actual number of seats available multiplied by 85%. In other words, the “capacity” of a school amounts to only 85% of the true number of seats available for students. Several of the KCMSD magnet high schools are under-utilized. Paseo High School presently enrolls 751 pupils in a building with an 85% capacity of 1556. This amounts to a utilization rate of 48% of the 85% capacity figure. Lincoln Prep High School utilizes only 35% of its 85% capacity capability figure of 1479 by enrolling only 574 pupils. Metro High School enrolls only 835 pupils in a building which has an 85% capacity of 2040. This amounts to a 41% utilization rate. (Testimony of Stolee, Tr. at 1998; KCMSD Ex. 10).
Transportation costs for high schools are costly since pupils are transported from all parts of the KCMSD to high schools in all parts of the KCMSD. Any plan to close high schools must also provide for a decrease in transportation cost. (Testimony of Stolee, Tr. at 1995–99). One possible scenario would require that three or four centrally located high schools would house all of the high school magnet programs. This would result in a decrease in transportation costs. Id.
Dr. Michael Stolee, Professor Emeritus at the University of Wisconsin–Milwaukee, testified further savings could be realized by creating attendance zones, especially for the traditional elementary schools. Currently, the KCMSD transports minority students who reside near the south boundary line of the primarily minority central core of the KCMSD to attend school in the north and conversely, bus students who live in the north to attend school in the south. (Testimony of Stolee, Tr. at 2002–03; State Exs. 122, 125). Certain elementary schools in the KCMSD are located in racially diverse residential areas, but children are transported to distant schools (Testimony of Stolee, Tr. at 1002–04). The transition plan provides that these schools should serve the area in which they are located. Dr Stolee also recommended consolidating magnet programs and therefore achieving further transportation savings.

Additionally, Bonnie McKelvey, KCMSD’s Director of Budgeting, testified that the KCMSD occupies a better position than many school districts with respect to capital improvements. Typically, an average school district funds capital improvements through special bond issues, which are amortized over at least twenty years. (Testimony of McKelvey, Tr. at 1619–20). However, a major portion of KCMSD’s capital expenditures have been paid “out of pocket.” During the 1995–96 fiscal year, the capital construction outlay totaled $50 million. While this requires a large expenditure up front, it also means that the KCMSD will have to pay less for debt service in future years. (Testimony of McKelvey, Tr. at 1620).
The KCMSD contends it is in the best interest of the KCMSD for the Court to approve the Agreement. Specifically, the KCMSD points out that of the $73,338,887 paid by the State in Fiscal Year 95, almost 80% ($58,209,975) was spent on programs intended to reduce racial isolation: the magnet plan and magnet transportation. The KCMSD admits the racial isolation vestige is near elimination. Testimony of a KCMSD witness indicated that any remaining racial isolation vestige could be rectified in two years. (Testimony of Stolee, Tr. at 2011). The State argues that the KCMSD is already unitary with respect to the racial isolation vestige considering the constraints imposed by the demographics. (Testimony of Rossell, Tr. at 88). Under Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), *1172 court-supervision and courtordered funding may be withdrawn in stages as partial unitary status is achieved. Believing that the grant of unitary status was near for the vestige of racial isolation, the KCMSD reasoned that it should lock in more money than it could hope to obtain through continued litigation and negotiated with the State to arrive at the funding amount to be paid by the State if the Agreement is approved.
Further, Jenkins III admonishes this Court to remember not only that the State obligation for the quality education programs has always been limited to funding, but also many of the goals of the quality education programs have been reached. The major portion of State funds not devoted to magnet programs and transportation is used for funding the Milliken II programs, which are the quality education components.
[8] The plaintiffs charge that this Court has no authority or jurisdiction to approve the Agreement. The Court would remind the plaintiffs that the principles of a desegregation remedy require a “practical flexibility.” Brown v. Board of Education, 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955) (Brown II ). The plaintiffs maintain that the principles of joint and several liability force the Court to freeze the status quo until the declaration of unitary status. However, “a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.” System Federation No. 91 v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 371, 5 L.Ed.2d 349 (1961). The Eighth Circuit has held that a federal court has “inherent jurisdiction in the exercise of its equitable discretion and subject to appropriate appellate review to vacate or modify its injunctions.” Booker v. Special School District No. 1, 585 F.2d 347, 352 (8th Cir.1978), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979).
Rule 60(b)(5) of the Federal Rules of Civil Procedure provides that “the court may relieve a party ... from a final judgment [or] order” because “it is no longer equitable that the judgment should have prospective application.” The State has contributed almost $1.2 billion to the KCMSD. The KCMSD used those funds to build new facilities and remodel old ones. A major portion of the funding responsibility for the quality education components of the remedy fell upon the State. A majority of those programs are now in place. While the Court feels that the State has been more litigious than necessary and the remedy may have achieved better results had the State chosen to be more cooperative, it is clear that the State has contributed large sums of money to the KCMSD. Additionally, the State has now offered to pay a considerable amount to provide the KCMSD transition funding as it attains self-sufficiency. Finally, approval of the Agreement may encourage legislative action to provide equitable funding for the KCMSD, once the State is relieved of the desegregation funding obligations.
Considering the above findings as to unitary status and the limited time that is required for the KCMSD to remedy the remaining vestiges, the Court feels that any remaining obligation of the State to the school children of Kansas City may be discharged by the payment of the funds provided for in the Agreement. Equity requires a modification of the earlier remedy prescribed by this Court. Following the pronouncement in Jenkins III, the Court observes that the State has been responsible for the funding, not the implementation of the desegregation programs. The Court declares that the joint and several liability finding is therefore modified to individual liability of the KCMSD. The State’s obligation shall end and the State will be entitled to an Order from this Court dismissing the State from this action when the State has paid the sums provided for in the Agreement.

V. Modifications of the Remedy Relating to the KCMSD
A. Introduction If circumstances change, the Court possesses the equitable power to modify the injunction originally imposed. No world may stay frozen in time. The State and the *1173 KCMSD committed serious constitutional harms some years ago. This Court’s responsibility lies in restoring state and local control as soon as possible when the vestiges of the prior discrimination have been remedied to the extent practicable. Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2056. An inspection of the KCMSD reveals a much different school system than the system that confronted this Court almost twenty years ago when the plaintiffs first filed their complaint. No longer do minority residents of the KCMSD occupy a subservient role to a white majority. The Kansas City Missouri School Board presently includes six minority members—a full two-thirds of the School Board— including the President of the Board of Education. Gone too are the decaying buildings, the segregated students forced to use only handed-materials. New and renovated classrooms greet the students and teachers of the KCMSD today.
While the Court remains proud of the innovations it ordered and the strides the KCMSD has taken, the circumstances of the KCMSD today also bring sadness. This Court afforded the KCMSD an opportunity to achieve goals unimaginable in most school districts. A large amount of the money spent in the District has indeed resulted in tangible benefits, such as new and renovated schools, an increased number of computers, higher technology available to all students, and intervention programs to help impoverished children. However, after examination of the exhibits in this hearing, as well as exhibits from the June, 1996 hearing on the budget, the Court cannot fail to see excess expenses in the top-heavy administration in the KCMSD. While extra expenses could be justified with superior performance, the KCMSD presents an opposite picture: large expenses and inadequate performance in many areas.
The Court does not mean to suggest that the District has achieved nothing over the course of this litigation. The KCMSD instituted massive directives to implement magnet schools and attract non-minority students. The KCMSD has employed many highly competent people over the course of this Court’s involvement with desegregating the District. Additionally, any school district would find it difficult to overcome some of the obstacles the KCMSD has faced. The transient nature of the leadership within the KCMSD administration provides a formidable barrier. Ten people have occupied the position of superintendent of the KCMSD in nine years. However, not even the changes in leadership can explain some of the performance deficiencies in the KCMSD.
The matters addressed below are not intended to be findings of fact and played no role in the Court’s opinion as to the approval of the Agreement or the existence of a unitary school system within the KCMSD. Instead, the Court wishes to identify some of its concerns about the current status of the KCMSD. The District’s recent performance has been dismal at best:
1. The KCMSD still lacks a comprehensive, integrated educational and instructional plan. In its July 15, 1996 Order, this Court expressed its frustration at the KCMSD’s continued slow movement in the creation of an instructional plan. The Court directed the KCMSD to place completion of the plan as its top priority. Yet at the January, 1997 hearing on unitary status, the Deputy Superintendent of Educational Services of the KCMSD testified as to the intended date for KCMSD’s submission of a plan: “I believe it’s March 1st. I think it’s March 1st or April 1st. I can’t remember the exact date.”
2. The District’s fragmented efforts to implement meaningful staff development have fallen far short of the mark. While there is some good teaching and learning going on in KCMSD schools, there is a great deal of poor teaching and little learning in many schools. Only five elementary schools, one middle school, and one high school within the KCMSD meet or exceed the statewide average on the Missouri Mastery and Achievement Tests (MMAT).
3. On-going administrative instability has plagued the District for years, resulting in a lack of accountability for deficiencies. Individual schools have seen similar high *1174 turnover rates for principals. Essential programs for improvement attain only a continual state of limbo, awaiting the next KCMSD administration to modify the plans. An instructional plan that overcomes this instability is essential to attain a quality education for all students.
4. The KCMSD still lacks a security plan. The Desegregating Monitoring Committee (DMC) identified safety and security as a major concern last year. The Court ordered a plan to be completed by February 14, 1997. The KCMSD did submit some broad statements of security policy and informed the Court that work was continuing on a final product that consisted of input from many groups. It is a sad commentary, however, that based upon this Court’s experience with the

KCMSD, without further reminders and demands from the Court, the security plan may be delayed for a substantial length of time. A safe and secure school is an absolute prerequisite for a successful school.
5. The KCMSD is unable to supply a budget for a particular fiscal year, reconciled with actual expenditures for specific line items. The purpose of a budget is to plan for upcoming expenses and only deviate from that budgeted amount for good cause The KCMSD, however, appears to simply throw large sums into various accounts, allowing departments to either exceed the budgeted amount by a huge sum, or not use significant portions in that account. This lack of true budgeting makes identifying how much money the District actually needs to operate extremely difficult.
These deficiencies in performance cannot be blamed on a lack of financial resources. While many of the remedies imposed by this Court require larger expenditures than some school districts, the KCMSD has an operating budget that far exceeds the budgets of other school districts. (State Ex. 164). The first table below shows the amount spent in districts approximately the same size as the KCMSD. The figures shown for the total operating expense were calculated by multiplying the. enrollment by the per pupil amount shown in the exhibit. The amount shown for the KCMSD excludes any expenses for capital expenditures. The operating expense column based on dollars spent per pupil does not factor in the cost of living within that particular district. Therefore, the next column calculates the operating budget, adjusting the budget depending upon the cost of living within that district.

District
Montgomery Co. Ala. Stockton City, Cal. Chatham Co. Ga. Richmond Co. Ga. Kansas City, Mo. Oklahoma City, Okla. Alief ISD, Texas

Enrollment

Student–

Percent

Operating

Operating

Fall/1993

Teacher

Minority

Budget/

Budget/Real

Ratio

$/pupil

$ per pupil

35,244

17.7

64.7

$107,317,980

$120,569,720

34,337

23.1

81.3

$179,548,170

$161,315,220

35,358

15.9

62.1

$167,101,900

$183,437,300

35,422

17.2

64.7

$143,423,670

$157,450,790

36,599

12.7

75.5

$304,357,280

$329,025,010

38,052

17.0

60.0

$157,230,860

$177,855,040

33,315

16.7

73.2

$122,232,730

$135,825,250

————— The next table shows districts somewhat smaller than the KCMSD, so the actual dollar per pupil column is excluded, replaced by another column that reflects what the district would incur in operating expenses if it were the same size as the

KCMSD: District
Little Rock, Ark. Bakersﬁeld, Calif. Fontana, Calif. Springﬁeld, Mo.

Enrollment

Student–

Percent

Operating

Budget

Fall/1993

Teacher

Minority

Budget/Real

Adjusted for

Ratio

$/pupil

Size: Real

25,543

15.7

66.9

$141,687,020

$182,776,250

26,366

24.7

71.4

$ 96,578,658

$123,620,680

29,764

26.8

68.9

$118,163,080

$141,795,690

24,632

18.0

6.3

$101,533,100

$135,039,020

*1175 The Court is aware that some of these school districts are not operating under a desegregation order, and of those that are, perhaps the constraints imposed by the courts are different than those of the KCMSD. It cannot go unnoticed, however, that the KCMSD figure surpasses other districts by a substantial amount, even considering those differences.
When examining the KCMSD budget for 1996–1997, several items attract attention. First, the sheer size of the administrative budget appears lavish. One is struck first at the number of the many departments. The following table depicts employees of the KCMSD who are not teachers, principals, or the support staff at the various schools. It also excludes special education teachers and administrators, alternative education teachers, gifted and talented teachers, and the food service employees:
NON-TEACHING POSITIONS, EXCLUDING FOOD SERVICE

1996–97

Department
Board Services Chief Exec. Ofﬁcer (Superintendent) Director, Public Information Legal Counsel Internal Auditor Admin. Hearing Ofﬁcer District Legal Counsel M/WBE Information Systems Assoc. Super./Human Resources Recruiting & Stafﬁng Employ. Relations Employ. Service

No. of

Budgeted

Persons

Salary

2

$56,983

6

$307,842

11

$393,301

3

$166,731

4

$165,638

6

$206,213

1.28

$77,315

43

$1,795,109

6

$201,908

9

$314,828

2

$80,936

7

$171,359

Assoc. Super./Human Resources Recruiting & Stafﬁng Employ. Relations Employ. Service Compensation & Classiﬁcation Assoc. Sup. of Transportation Chief Instructional Ofﬁcer/Deputy Ass’t Sup./Educ. Support Services Director/Spec. Education Teacher Support Proj. Coordinator/Pupil Services Athletics & Activities/Instruct. Admin. Military Science/Instruct. Admin. Director/Curriculum Development Director/Instruct. Services Spec. Lib/Media Service/Instruct. Admin. Textbook Depository/Instruct. Admin. Parenting Resource Center/Instruct. Admin.

6 9 2 7 2 26.30 5 6 6 2 2.75 2 2 26 19 8 8 3

$201,908 $314,828
$80,936 $171,359
$54,876 $712,352 $296,215 $205,488 $318,922
$23,634 $102,259
$75,848 $80,439 $1,191,021 $743,138 $187,787 $202,967 $86,747

Director/Instruct. Services Spec. Lib/Media Service/Instruct. Admin. Textbook Depository/Instruct. Admin. Parenting Resource Center/Instruct. Admin. School Community Partner/Instruct. Admin. Human Relations Assistant Superintendents (Maint./Cust./Sec.) Maintenance—Supervision Custodial Services District Engineer Safety & Security CIP Oversight Environmental Services Dept. Dir./Admissions Assoc. Supt. Planning Dir. Deseg. Planning Assoc. Supt./Business & Finance Beneﬁts/Risk Mgt.

19

$743,138

8

$187,787

8

$202,967

3

$86,747

1

$53,398

3

$129,839

6.5

$251,580

141

$3,637,678

418

$8,239,414

2

$69,644

119

$2,581,486

4

$143,602

2

$73,559

14

$437,415

2

$109,255

10

$431,670

2

$115,062

5

$163,220

Assoc. Supt. Planning Dir. Deseg. Planning Assoc. Supt./Business & Finance Beneﬁts/Risk Mgt. Dir. Budget/Fiscal Planning Dir. Acct. & Investments Dir. Purchasing Warehousing Mail Dist/Dupl. Center

2 10 2 5 18 35 13.80 19.30 5

$109,255 $431,670 $115,062 $163,220 $671,763 $1,105,619 $517,634 $465,506 $102,701

1,038.93

$27,519,901

————— *1176 The total spent on salaries for these departments do not reflect the total amount actually budgeted for those departments. Miscellaneous line items for “other professional services,” “other purchased services,” or “repair and maintenance” contain a significant amount of expenditures as well.
A further modification of the data above is required to calculate the number of people an average person might consider as an “administrator” rather than a “worker.” Of course, the Court’s rough definition does not coincide with the District’s. Criticism has been leveled at the KCMSD, however, because of its top-heavy administration, which requires a broad definition instead of a narrow one. When the “workers” are subtracted from the total above, the remaining “administrators” total 404.93. However, the list above includes the “clerical” positions in each of the departments. Subtracting the total of clerical staff (57) who work in each of the above departments leaves the count at 347.93. Adding the principals and vice-principals from the various schools, the approximate number of “administrators” that the KCMSD increases to 564.93. The KCMSD lists 363.5 as the number of administrators in its budget document that was submitted as evidence in the June, 1996 hearing. (1996 KCMSD Ex. 13). That exhibit was also utilized for the figures in the table above. The Court is sure that the root of the discrepancy in the two figures probably lies in the Court’s definition, but the concern about the number of administrators employed lingers.
A comparison with another school district similarly reveals distressing figures. The Court requested a budget document from the Springfield Missouri School District, which has an enrollment of approximately of 24,000 students. The enrollment of the KCMSD is approximately one third larger than the Springfield schools. The table below depicts a rough comparison between

the two districts of the number of persons employed in various categories. The middle column contains the Springfield personnel number for that category increased by 33%, in order to give a rough approximation of the effect of the size differential between the two districts. The table excludes “clerical” staff from all KCMSD figures for a particular category. The “teacher” category does not include music, art, or physical education teachers, which are considered “itinerant” positions, sometimes moving between schools. Further, the KCMSD does not actually operate its own transportation service. The Springfield District owns and operates its own fleet of school buses. The figures in this table relating to transportation obviously reflect only the administration figures in Springfield:

Category

Springﬁeld

Spﬂd. + 33% KCMSD

Accounting Data Processing Human Resources Transportation (Admin. only) Teachers (not including itinerants) Building Services (Maint./Custodial)

3.00 5.00 1.00 2.00 1111.15 219.50

3.99

63.80

6.65

42.00

1.33

19.00

2.66

20.30

1477.83 2496.28

291.94 531.00

————— The Court realizes that the KCMSD must employ extra staff to comply with the desegregation remedy and raw comparisons such as this are inherently fraught with inequities. *1177 However, the above disparities remain alarming even taking the desegregation staffing into account and factors that the KCMSD must face that the Springfield District does not, such as a large minority enrollment. Many witnesses at the hearing expressed concern at the size and inefficiencies of the KCMSD administration.
The Court’s main goal in ordering the remedy it imposed was to benefit the children of the KCMSD through better buildings, as well as better teaching, to provide an increased quality of education. The better buildings are in place. The KCMSD has teaching resources available that most districts lack. When dividing the total enrollment of each school by the number of teachers assigned to that school, the KCMSD’s student to teacher ratio is amazingly low. (KCMSD Ex. 29). The studentteacher ratio in the elementary schools ranges from a low of 8.62 students per teacher to a high of 18.43 students per teacher. The range of student-teacher ratios in the middle schools is 10.3 to 14.83. The high school range is from 12.59 to 17.3 students per teacher. Upon closer examination, however, the actual class sizes climb dramatically. The total number of

teachers assigned to a particular school includes the itinerant teachers, the special education teachers, resource teachers, and content teachers. Because these teachers are added to the total number of teachers assigned to a particular school, this artificially decreases the student-teacher ratio.
When the Court requested additional information from the KCMSD regarding its class sizes, a different picture emerged. More common class sizes at the elementary school level ranged between 22–28 than between 11–17. Many elementary classes had enrollments of 28 and 29, rather than the state desirable standard of 20 students for K–2, 22 students for 3–4, and 25 students for 5–6. A first-grade class at Carver had 38 students enrolled, while one first-grade class at Troost showed an enrollment of 69. At Graceland and Richardson, 40 and 46 students were enrolled in second-grade classes, respectively. A third-grade class at Ladd had an enrollment of 42, and several kindergarten classes carried an enrollment ranging in the forties to the seventies. The data from the middle and high schools presents mixed results. The class size ranges in many schools are below the desirable ratios that DESE sets forth in its Missouri School Improvement Plan (MSIP) standards. The number of students that each teacher sees, however, often exceeds the state level of 125. At the middle-school level, even more teachers suffer an increased teaching load. Most middle schools have teachers who are responsible for teaching six classes per day, which often causes them to teach between 135–140 students. Achievement levels of minority students begin their precipitous decline at the middle-school level.
Further, teaching loads seem to vary from school to school. At Central High School, most teachers have only three classes per day, while the other schools have either five or six classes per day. A corresponding gain in achievement at Central because of the decreased teaching responsibility of the staff does not occur. The opposite is true. Central has lower scores on the MMAT, for instance, than Van Horn High School, at which teachers are responsible for six classes per day.
The Court has tediously listed the above figures to demonstrate its grave concern for the future direction of the Kansas City Missouri School District. The KCMSD must come to grips with fiscal reality. That reality is approaching within a very short time frame. The Supreme Court has mandated that desegregation remedies should be temporary, not permanent. Jenkins III, 515 U.S. at ––––, ––––, 115 S.Ct. at 2038, 2049. The KCMSD must begin to move decisively so that it can be ready to stand on its own in the near future. It cannot continue to spend money on either excess or incompetent personnel. The KCMSD must instead effectively educate its students, as well as provide a safe and secure environment for both students and teachers.
B. Modification of the Remedy The constant changes in leadership of the KCMSD affords little hope that the concentrated *1178 efforts that are required of the District has any hope of succeeding. The Court, therefore, orders a modification of the remedy in an effort to overcome this instability of leadership. The Court believes that the KCMSD requires help with some demanding decisions in the near future. The District must trim its budget, as well as its staff. The Court readily admits it has no educational expertise and has only identified general areas of worry. A strong hand is needed to guide the District through the difficult waters that lie ahead. Because of the KCMSD’s troubled past, the District has lost the confidence of many of its staff, students, parents, and the community at large. Continual change frustrates the teaching staff, which in turn complicates acquiring teachers’ cooperation in the efforts needed to increase the educational quality of the KCMSD. Already low achievement scores have fallen in the last year or two and the debacles of the School Board have provided near constant fodder for the news media.
While the Court has released the State from any further obligations in this case except for the payment of funds as provided for in the Agreement, the Court has a high regard for Dr. Robert Bartman and the Department of Elementary and Secondary Education (DESE), now under his direction. In the post-hearing briefs submitted to the Court, the Plaintiffs have requested the close collaboration of DESE to share its expertise with the KCMSD to pursue the goals set out by the Court. The KCMSD has also said it would welcome this close collaboration with DESE. Dr. Bartman testified that DESE would provide any help requested to the KCMSD.
The Court, however, desires more than a close cooperative effort between DESE and the KCMSD. The Court would like to place DESE in a position of overseeing the KCMSD through this transition phase. The Court envisions that the KCMSD will have a transition plan submitted to the Court by the beginning of school in the fall of 1997. Dr. Stolee stated he thought the planning of the implementation could be completed in that school year. The time period set forth by the Court for the remaining vestiges to be completed will afford the KCMSD two years of implementation.
With the approval of the Agreement, and a short time span allotted by the Court to cure the remaining vestiges, the KCMSD must move quickly and correctly to get its financial affairs in order. The Court believes that the administration of the KCMSD is not up to this task. Not only do superintendents come and go with too great a frequency, but difficult decisions

will have to be made on where to cut the budget. In the past, the KCMSD administration has found much to cut in the way of school services, but little in the area of administration. Further, while teaching staff may need to be cut, the Court feels that a strong hand with educational expertise and no “vested interest” is essential to accomplish the difficult goals in this transitory period. DESE and Dr. Bartman have both the educational expertise and the familiarity with the history of the KCMSD desegregation effort to provide guidance through this transition period. But let the Court be clear, this is not mere “guidance” that the Court is seeking. The Court is asking DESE to give approval before KCMSD decisions are made about the necessary budget cuts. As the State pointed out countless times during the hearing, it has spent a considerable amount of money on this desegregation effort. Under the Agreement approved by the Court in this Order, the State still remains obligated for a large sum to be paid to the KCMSD. The Court feels that the State should have a hand in saying how its money is being spent.
The Department of Elementary and Secondary Education (DESE) of course has an obligation to ensure a quality of education for all of the state’s citizens. The Revised Missouri Statutes provide that the Department should “seek in every way to elevate the standards and efficiency of the instruction given in the public schools of the state.” RSMo. § 161.122 (1991). This Court will appeal, however, to the Department’s and Dr. Bartman’s sense of duty to help the state’s second largest school system, now floundering, and in desperate need of DESE’s educational expertise.
*1179 The Court cautions that any involvement in the operation of the KCMSD by the State Attorney General’s office would be inappropriate because of the long litigious nature of the relationship between that office and the KCMSD. If DESE and Dr. Bartman decline the Court’s appeal, then the Court would seek DESE’s help in finding a Special Master to oversee the KCMSD. Time is of the essence and the Court would urge DESE to act with all due haste. The Court hopes that this procedure will not be necessary, however.
The Court feels that it would be inappropriate for the Court to impose any constraints on this management effort from DESE. Dr. Murphy and Dr. Stolee presented excellent testimony at the hearing concerning what direction the KCMSD could take to maintain the integrity of the desegregation programs as much as possible considering the imposition of budget restrictions. The Court would urge DESE to examine Dr. Stolee’s transition plan to see if it is viable for implementation in the KCMSD. Other general areas of concern include the budgeting process itself and increased class sizes. The Court discussed both of those problems above. The only order that this Court will impose upon the KCMSD now concerning those matters is that the budget should be redesigned to reconcile actual expenses with budgeted expenses for every line item. Other matters are best left to the discretion of DESE and Dr. Bartman.
While the Court does not possess a crystal ball and, therefore, is unable to say with absolute certainty if the KCMSD will have attained unitary status within the three-year time period that the Court has given it to eliminate the remaining vestiges, the Court feels that the three-year period is a reasonable time frame for the KCMSD to accomplish its work. Even the KCMSD witnesses testified that two to three years was appropriate to eliminate some of the remaining vestiges, while other witnesses said that three to five years would be required for other programs. This Court feels that three years should be enough for all the implementation to be completed. At the end of three years, the KCMSD should plan on being entirely selfsufficient, even if that means regressing to a $2.75 levy. The Court will repeat that it is not the federal court system’s responsibility to ensure funding. That is the province of the state legislature and the voters of the District.
One final word: as the parties know, this is the last time that this Court will hear matters involving this case, The Court is aware that the appeal process is sometimes long, therefore often delaying the official implementation of the lower Court’s order. This Court urges the KCMSD to act for the good of the children entrusted to its care and not wait until the final appeal has been heard to begin working on trimming its budget in a serious fashion and preparing for the future. The focus of the District must be on improving the quality of education for its students. This will require the dedication of the KCMSD’s administration, teachers, parents, and community. A delay will serve no interests except self-serving ones of the KCMSD. The future is in the children.
Accordingly, it is
ORDERED that the KCMSD reduce its achievement gap by 2.6 NCE’s within three years; and it is further
ORDERED that the KCMSD attempt to achieve by all practicable measures a plus or minus range of 15% in 80% of its elementary schools within three years; and it is further
ORDERED that the KCMSD file a transition plan with the Court no later than August 15, 1997; and it is further

ORDERED that the KCMSD modify its budgeting process so that actual expenditures may be reconciled with the budgeted amounts for each line item by department; and it is further ORDERED that the State’s Motion for Unitary Status is denied as to the educational vestige, the assignment of students and faculty, facilities, and transportation; and it is further *1180 ORDERED that the State’s Motion for Unitary Status is granted as to extracurricular activities; and it is further ORDERED that the State’s Motion for Approval of the Agreement with the KCMSD is granted and the State will be dismissed from this action upon the payment of the amount designated in the Agreement.
All Citations 959 F.Supp. 1151, 118 Ed. Law Rep. 117

 
 965 F.Supp. 1295 United States District Court,
W.D. Missouri, Western Division. Chinyere JENKINS, et al., Plaintiffs,
v. The STATE OF MISSOURI, et al., Defendants.
No. 77–0420–CV–W–1. |
May 22, 1997.
Synopsis In ongoing school desegregation action, plaintiffs moved to stay court’s approval, 959 F.Supp. 1151, of settlement agreement between state and school district, pending appeal therefrom. The District Court, Whipple, J., held that: (1) approval of settlement agreement amounted to partial dissolution of structural injunction, and (2) potential harm to plaintiffs did not rise to level of irreparable injury, stay of approval would result in immediate harm to defendants, and plaintiffs failed to demonstrate sufficient likelihood of success on merits of their appeal to overcome balance of harms weighing against them.
Motion denied.
Attorneys and Law Firms *1296 Arthur A. Benson, II, Kansas City, MO, for plaintiffs. Mark A. Thornhill, Spencer, Fane, Britt & Browne, Kansas City, MO, Taylor Fields, Charles R. Brown, Fields & Brown, Kansas City, MO, for defendant KCMOSD. Missouri Attorney General’s Office, Bart A. Matanic, Jefferson City, MO, for defendant State of MO. Scott Raisher, Jolley, Walsh, Hurley, Raisher Schaeffer & Roher, Kansas City, MO, for American Federation of Teachers.
ORDER
WHIPPLE, District Judge. Pending before the Court is Plaintiffs’ motion, pursuant to Federal Rule of Civil Procedure 62(c), to stay the Court’s approval of the settlement agreement between the State of Missouri and the Kansas City, Missouri School District (“KCMSD”) pending appeal.
I. Factual and Procedural Background On April 26, 1996, the State of Missouri filed a motion that requested a declaration of unitary status, dissolution of all injunctions, and relinquishment of jurisdiction from the Court’s desegregation order. On May 21, 1996, the State and the KCMSD announced that they had entered into a settlement agreement which, if approved by the Court, would release the State from joint and several liability. The release would end the State’s obligation to fund the desegregation remedy after the

payment of $314 million over a three-year period. The American Federation of Teachers (“AFT”), an intervenor in this action, joined the agreement. On July 19, 1996, the State filed a motion requesting final dismissal of the case and approval of the agreement.
At the June 1996 budget hearing, the Court increased the State’s funding obligations by $6 million, which escalated the State’s total obligation to approximately $320 million. The State has already paid $69 million for Fiscal Year 1997, which leaves a net *1297 amount due under the agreement of approximately $251 million. See Order of May 20, 1997 (correcting the numerical amounts that the State had paid and the net due). Consistent with the State’s role throughout the remedial phase of this case, the agreement focuses only on funding. It is silent as to how the KCMSD must administer the funds to implement the desegregation remedy.
On August 14, 1996, the KCMSD filed a memorandum supporting approval of the agreement. The KCMSD opposed the state’s motion for unitary status but agreed that the Court should release the State from any further obligations except those delineated in the agreement. The AFT took the same position as the KCMSD. Plaintiffs contested both the State’s motion for unitary status and motion for approval of the agreement.
The Court held a three-week hearing to hear testimony relating to the above-mentioned motions. It also permitted the parties to file post-hearing briefs. On March 25, 1997, before transferring the case to this division, Judge Russell Clark approved the settlement agreement. Judge Clark summarized the consequences of the approval:
[T]he Court feels that any remaining obligation of the State to the school children of Kansas City may be discharged by the payment of the funds provided for in the Agreement. Equity requires a modification of the earlier remedy prescribed by this Court ... The Court declares that the joint and several liability finding [between the State and the KCMSD] is therefore modified to individual liability of the KCMSD. The State’s obligation shall end and the State will be entitled to an Order from this Court dismissing the State from this action when the State has paid the sums provided for in the Agreement.
Order of March 25, 1997 at 44. Although the Court approved the settlement agreement and released the State from joint and several liability, it granted the State’s motion for unitary status only in part. See Order of March 25, 1997 at 12–37. The Court repeatedly noted that granting unitary status to the entire school district would result not only in the loss of state-supplied desegregation funding, but also of the court-ordered portion of the tax levy. See, e.g., Order of March 25, 1997 at 5–6, 31, 36–37. Subsequently, a host of motions were filed, including Plaintiffs’ pending motion to stay the Court’s approval of the settlement agreement pending appeal.
II. Standard For Granting A Stay Under Rule 62(c)
[1] [2] When a party appeals a judgment that dissolves an injunction, Federal Rule of Civil Procedure 62(c) authorizes the district court to stay its own order of dissolution during the pendency of the appeal. See Fed.R.Civ.P. 62(c). Stays are commonly intended to preserve the status quo until the court of appeals can determine the validity of the district court’s dissolution of the injunction. See 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2904 (2d ed. 1995). In this case, Plaintiffs invoke Rule 62(c) to stay the portion of the Court’s Order of March 25, 1997 that approved the settlement agreement and modified the State’s liability under the earlier desegregation order. Essentially, the Order’s release and approval of the settlement was a partial dissolution of the structural injunction over the administration of the school district, making Rule 62(c) applicable.
The factors to be considered in granting a stay pending judicial review under Rule 62 are essentially those factors considered in Dataphase Sys., Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981) for granting preliminary injunctive relief. Packard Elevator v. I.C.C., 782 F.2d 112, 114 (8th Cir.1986). The Eighth Circuit has adopted both a traditional test and an alternative test for evaluating requests under Rule 62(c). See Dataphase Sys., 640 F.2d at 112. The traditional test requires the moving party to demonstrate the following factors: (1) a substantial probability of success on the merits of the appeal; (2) a showing that the failure to grant a stay would cause irreparable injury; (3) a showing that no substantial harm will come to other interested parties; and (4) a showing that a stay will do no harm to the public interest. *1298 Dataphase Sys., 640 F.2d at 112; Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987).

[3] [4] In Dataphase, the Eighth Circuit Court of Appeals explained that the alternative test differs from the traditional test in its method of evaluating the elements of success on the merits and irreparable injury. The alternative test entails a slidingscale inquiry. Dataphase Sys., 640 F.2d at 113. The court explained that, if, absent a stay, the movant’s chance of suffering irreparable injury is outweighed by the likely injury to the non-moving party if the Court grants the stay, then the movant faces a “heavy burden” of demonstrating that he is likely to prevail on the merits. Id. Conversely, where the movant has raised a substantial question and the equities are otherwise strongly in his favor, his showing of success on the merits can be less. Id. Plaintiffs advocate the use of the alternative test. See Pl. Reply at 4.
A. Irreparable Harm to Plaintiffs
[5] To warrant a stay, Plaintiffs must first demonstrate that the Court’s Order of March 27 will irrevocably and adversely change their claimed rights and powers before the Eighth Circuit Court of Appeals has an opportunity to determine the validity of the Order. See Iowa Utilities Bd. v. F.C.C., 109 F.3d 418, 425 (8th Cir.1996) (“[T]o demonstrate irreparable harm, a party must show that the harm is certain and great and of such imminence that there is a clear and present need for equitable relief.”); Packard Elevator, 782 F.2d at 114 (“The [petitioner] must provide proof that the harm has occurred in the past and is likely to occur again, or proof indicating that the harm is certain to occur in the near future. Further, the [petitioner] must show that the alleged harm will directly result from the action which the [petitioner] seeks to enjoin.”) (citations and internal quotations omitted); JACK H. FRIEDENTHAL, ET AL., CIVIL PROCEDURE § 15.4 (2d ed. 1993); see, e.g., English v. Cunningham, 80 S.Ct. 18, 20, 4 L.Ed.2d 42 (1959). To be exact, Plaintiffs’ arguments must satisfy at least two elements. First, the alleged threat of irreparable injury must be capable of occurring (and likely to occur or “imminent”) between the effective date of the Order and the date when the court of appeals will likely rule on the validity of the Order. See Iowa Utilities Bd., 109 F.3d at 425. Second, Plaintiffs must show that the disputed Order will directly cause the alleged irreparable injury. Packard Elevator, 782 F.2d at 114.
Plaintiffs argue that failure to enjoin approval of the settlement agreement would cause three injuries to their claimed rights and powers: (1) lost educational opportunities, such as the magnet programs, Pl. Memo. at 7–8,1 (2) alienation of parents, students, and educators, id.,2 and (3) denial of the children’s “constitutional right to an ‘effective’ remedy,” Pl. Reply at 2–3.3 In sum, “the harm here is the removal from the schoolchildren of remedial provisions that are presently providing them with a constitutionally mandated remedy.” Pl. Memo. at 5.
Notably, Plaintiffs leave the practical effect of a stay ambiguous. They fail to expressly indicate how a stay of the agreement pending appeal will afford them the relief they seek. Plaintiffs intimate, however, that a stay of the agreement would prevent the *1299 KCMSD from implementing any extensive changes that may be grounded in its need to reduce the budget as a result of the agreement rather than in the need to effectively remedy the harms of the past discrimination.4
1. Lost Educational Opportunities
Plaintiffs first argue that approval of the agreement will cause budget cuts which will cause the loss of educational programs. Plaintiffs argument is unpersuasive for at least two reasons.5 First, the proposition that educational programs will be irrecoverably dismantled between now and the date of the resolution of the appeal is speculative, at best. The agreement does not encompass any substantive plan for modifying the remedial program. It targets only funding. Thus, educational programs cannot be modified until a plan is developed and approved by the Court. It is exceedingly doubtful that such a plan could be developed, approved, and unalterably implemented before the Eighth Circuit judges the validity of the settlement agreement. Speculative doomsdaying is not grounds for a stay. See Iowa Utilities Bd. v. F.C.C., 109 F.3d at 425; Packard Elevator v. I.C.C., 782 F.2d at 115 (denying stay because irreparable harm was speculative and unsubstantiated by the record).
Second, the KCMSD astutely targets the weakness in Plaintiffs’ causational link. Plaintiffs must show that approval of the agreement will promptly cause budget reductions which will promptly cause the alleged irreparable injury to the educational programs. Here, causation is lacking: The agreement will not be the cause of any imminent budget reductions nor any imminent changes to the educational programs. Plaintiffs fail to distinguish between the Court’s rulings on unitary status and

its approval of the settlement agreement, which were both included in the March 25 Order.
The settlement agreement provides for payment of $314 million over a three-year period. Thus, the settlement agreement ensures that the KCMSD will have ample funding for the next several years and will not precipitate budget reductions. Admittedly, however, budget reductions are imminent. Judge Clark’s Order of March 25, 1997 forewarned the KCMSD that it was approaching unitary status and, consequently, it would have to swiftly begin preparation for self-sustainment without the court-ordered tax-levy. See Order of March 25, 1997 at 6, 31, 36–37; see also Order of Apr. 16, 1993 (ordering the KCMSD to rein in spending); Order of Sept. 13, 1989. Once the Court declares the school district unitary, the district will relinquish the court-ordered portion of the tax levy. Accordingly, prompt budget reductions are necessary, not because of the settlement agreement, but because the KCMSD’s annual budget has escalated exorbitantly, to a level that it will be unable to maintain when the district finally achieves *1300 unitary status and the Court withdraws supervision and the court-ordered portion of the tax levy.
Likewise, the agreement will not cause modifications to the educational programs, like the magnet program which Plaintiffs specifically target. The magnet program was designed to eliminate the racial-isolation-vestige of former unconstitutional discrimination by attracting white suburban children to the KCMSD. Missouri v. Jenkins, 515 U.S. 70, 91–92, 115 S.Ct. 2038, 2051, 132 L.Ed.2d 63, 83 (1995) [hereinafter “Jenkins III”]. Consequently, Plaintiffs argue that modification of the magnet program could result in the loss of the benefits of desegregated learning between now and the date when the court of appeals renders judgment on the validity of the settlement agreement. See Pl. Memo. at 8. However, immediate changes to the magnet program, even if practicable, would not be the result of the settlement agreement. The funding under the agreement would be sufficient to sustain the magnet program in its present state at least until the court of appeals rules on the validity of the agreement.6 Nonetheless, the magnet programs will undoubtedly change. Judge Clark’s Order of March 25, 1997 discussed the inefficiencies of the present magnet program7 and the likelihood that the KCMSD will attain unitary status in several years, thereby losing the court-ordered tax-levy. Thus, the KCMSD will almost certainly consolidate the magnet program to prepare for self-sufficiency after court-supervision is withdrawn. Furthermore, in Jenkins III, the Supreme Court held that the goal of attracting white suburban children to the KCMSD through “desegregative attractiveness” was unconstitutional. 515 U.S. at 94, 115 S.Ct. at 2052, 132 L.Ed.2d at 84. Accordingly, any changes in the magnet program will reflect the state of the law and common-sense efficiencies.
2. Alienation of Parents, Students, and Educators
Plaintiffs next argue that approval of the agreement “signals that the future is unsettled,” which could lead to the alienation of parents, students, and educators. Even if unsettled expectations were an injury that the Court would recognize as redressable, however, the proposition that the approval of the agreement will cause unsettled expectations which will cause parents, students, and teachers to leave the school district before the court of appeals can rule on the validity of the agreement is highly speculative and not a basis to enjoin approval of the agreement. See Iowa Utilities Bd. v. F.C.C., 109 F.3d at 425; Packard Elevator v. I.C.C., 782 F.2d at 115.
Furthermore, any unsettled expectations about the future viability of the school district would be caused not by the settlement agreement but by the prospect of withdrawal of court supervision; the concomitant abolishment of the court-ordered portion of the tax levy; and by the record of incompetent management of the school district, which portends a tumultuous return of power to local authorities.8 In fact, approval of the settlement agreement ensures economic stability for the next three to five years.9 These several years will afford the school district time to prepare to become self-sufficient so that the return of power to local authorities will be less tumultuous than if the Court had withdrawn supervision without warning.
3. Effective Remedy
It is the courts’ duty to ensure that school systems make a good-faith effort to eliminate the vestiges of their prior de jure segregation to the extend practicable. *1301 Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2050, 132 L.Ed.2d at 82. Here, the remaining vestiges of prior de jure segregation are a system-wide reduction in student achievement and the existence of racially identifiable schools. Id. Plaintiffs argue that failure to enjoin the approval of the agreement will cause irreparable

injury to the effectiveness of the KCMSD schoolchildren’s remedy of these vestiges before the court of appeals can determine the validity of the disputed Order which approved the agreement.
Plaintiffs’ argument that the schoolchildren’s right to an effective remedy is at risk is merely a conceptual paraphrase of the previous argument that children’s educational opportunities are at risk. Consequently, the former suffers the same infirmities as the latter. As discussed above, it is exceedingly doubtful that a plan to modify the remedial programs could be developed, approved, and unalterably implemented before the Eighth Circuit Court of Appeals can judge the approval of the settlement agreement. This Court will not base a stay on improbable consequences of conjecture. See Iowa Utilities Bd. v. F.C.C., 109 F. 3d at 425; Packard Elevator v. I.C.C., 782 F.2d at 115.
Furthermore, Plaintiffs’ argument also bears the same causational defect as their previous argument. The State’s obligation under the agreement will provide ample funding over the next several years, and certainly will provide ample funding until the Eighth Circuit can rule on the validity of the disputed Order. Thus, it is not approval of the agreement which would cause modification of the remedial plain. Rather, it is the KCMSD’s anticipation of attaining unitary status and the attendant consequences that will precipitate eventual modifications to the remedial plan. Additionally, as discussed above, the Supreme Court’s rulings in Jenkins III will cause continued modifications of the remedy.
Finally, Plaintiffs’ argument is premised on two flawed presumptions: It presumes that this Court will neglect its duty to demand good-faith pursuit of an effective yet practicable remedy and it presumes that effectiveness is measured by the number of dollars injected into the school system. As to the former presumption, the Court adamantly assures Plaintiffs that it will not vary from the course demarcated in Jenkins III. The latter presumption exposes an underlying misconception that has plagued the remedial phase of this litigation. Money is a means, not an end. Though it can provide opportunities, it is not tantamount to an effective remedy. See, e.g., Order of March 25, 1997 (“While extra expenses could be justified with superior performance, the KCMSD presents an opposite picture: large expenses and inadequate performance in many areas.”); id. at 31 (“[W]ithin a two- to three-year period, the KCMSD can be reorganized in a way that will save many millions of dollars in staffing costs, transportation costs, and program expenses without sacrificing all of the gains which the KCMSD has made in eliminating racial isolation.”); Jenkins III, 515 U.S. at 138, 115 S.Ct. at 2073, 132 L.Ed.2d at 111 (“[W]e must remember that a deserving end does not justify all possible means.”). Based on the foregoing, the Court rejects Plaintiffs’ arguments that approval of the settlement will precipitate irreparable injuries before the court of appeals can rule on the validity of the disputed Order.
B. Harm To Other Interested Parties
Plaintiffs assert that other interested parties will not be significantly harmed by a stay of the approval of the agreement pending appeal. See Pl. Mem. at 9–10; Pl. Reply at 10. Conversely, the State and the KCMSD argue that a stay would cause immediate financial turmoil. No court-order approving funding for the 1997–98 school year exists. Without the money payable under the agreement, KCMSD will receive no desegregation funding from the State at the end of this fiscal year, which ends June 30, 1997. Consequently, a stay of the agreement would require an immediate hearing on funding.10 *1302 Such a hearing would cause the State and the KCMSD to relapse to the roles of adversaries and would dissipate resources that undoubtedly could be better spent. Unlike Plaintiffs’ alleged injuries, a stay of the settlement agreement would cause financial turmoil before the court of appeals could determine the validity of the order approving the agreement. Thus, absent a stay of the approval of the agreement pending appeal, Plaintiffs’ chance of suffering irreparable injury is slim (if even existent) compared to the likelihood that such a stay would immediately harm the other interested parties.
C. Success on the Merits
Because the likely injury to the KCMSD and the State if the Court grants the stay outweighs Plaintiffs’ chance of suffering irreparable injury, Plaintiffs face a substantial burden of demonstrating that they are likely to prevail on the merits. See Dataphase Sys., 640 F.2d at 113 (discussing the alternative, sliding scale test). Plaintiffs argue that they have satisfied their burden because (1) approval of this type of an agreement is unprecedented and similar cases approving settlements are distinguishable and (2) the Court’s approval of the agreement misapplies Jenkins III.

Approval of settlement agreements in school desegregation cases are not uncommon. See, e.g., Liddell v. Bd. of Educ., 567 F.Supp. 1037, 1042 (E.D.Mo.1983); aff’d in part, 732 F.2d 1294 (7th Cir.1984); Armstrong v. Bd. of School Directors, 471 F.Supp. 800, 804 (E.D.Wis.1979), aff’d, 616 F.2d 305 313 (7th Cir.1980). Nonetheless, the Court’s approval of this settlement agreement, releasing the State from joint and several liability for past acts of unconstitutional discrimination without consent of the Plaintiffs, is indeed unprecedented.11 The Court can locate no other desegregation case involving jointly liable constitutional violators in which the court released one co-violator while refusing to declare unitary status and retaining jurisdiction over the other co-violator.12 Also unprecedented, however, is the extent and expense of the KCMSD’s desegregation effort and the seeming irresponsibility and lack of forethought with which millions of dollars were extracted from the state treasury for over ten years. See Order of March 25, 1997 at 22–24 (identifying numerous deficiencies within the KCMSD and criticizing it as a “top-heavy” administration); Jenkins III, 515 U.S. at 79–80, 115 S.Ct. at 2044–45, 132 L.Ed.2d at 74–75 (discussing expense of the remedial program); id., 515 U.S. at 98, 115 S.Ct. at 2054, 132 L.Ed.2d at 87 (discussing the self-perpetuating characteristic of the expanding remedial program); see also Missouri v. Jenkins, 495 U.S. 33, 76, 110 S.Ct. 1651, 1676, 109 L.Ed.2d 31 (1990) (Kennedy, J., concurring) (“The plaintiffs and KCMSD might well be seen as parties that have joined forces apparently for the purpose of extracting funds from the state treasury.”) (internal quotations omitted). These unique facts produced a unique (and thus “unprecedented”), but not unprincipled, result. The fact that a court has never previously addressed this precise scenario in no way undermines the Court’s judgment and, consequently, does little to support Plaintiffs’ argument that they will likely prevail on the merits on appeal.
*1303 Likewise, Plaintiffs do not persuade this Court that they are likely to succeed on their argument that the Court misapplied Supreme Court precedent, including Jenkins III, when it released the State from liability before granting the school district unitary status. In Jenkins III, the Supreme Court set forth what it identified as the “ultimate inquiry” when determining whether a constitutional violator remains liable for its past acts of discrimination: “whether the constitutional violator has complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination have been eliminated to the extent practicable.” Jenkins III, 515 U.S. at 89, 115 S.Ct. at 2049, 132 L.Ed.2d at 81. Plaintiffs correctly point out that the “ultimate inquiry” is phrased in the conjunctive. They also point out that the school district has earned only partial unitary status, which means that vestiges of discrimination have not been eliminated to the extent practicable. Accordingly, they argue that, because vestiges remain, the Court mistakenly released the State from liability upon merely a showing of good faith compliance with the desegregation order. This argument, however, misrepresents Jenkins III and the basis of this Court’s judgment.
Jenkins III not only identified the ultimate inquiry, but also directed the district court to look to Freeman v. Pitts for guidance and to “consider that the State’s role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs.” Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2055, 132 L.Ed.2d at 88 (citing Freeman v. Pitts, 503 U.S. 467, 495–96, 112 S.Ct. 1430, 1448, 118 L.Ed.2d 108 (1992)).
[6] In Freeman v. Pitts, the Supreme Court held that a district court may relinquish its supervision and control over those aspects of a school system that comply with a desegregation decree, even though other aspects of the system remain in noncompliance. By analogy, a district court is authorized to relinquish supervision over a constitutional violator which has complied with a desegregation decree, even though its co-violator has not.
[7] [8] [9] Freeman also stressed that disparities among the races are not remediable unless those disparities have some manifest causal link to the de jure violation. 503 U.S. 467, 495–96, 112 S.Ct. 1430, 1448, 118 L.Ed.2d 108 (1992);13 see also Jenkins III, 515 U.S. at 117, 115 S.Ct. at 2063, 132 L.Ed.2d at 98–99 (Thomas, J., concurring).14 For example, a causal link may be absent where present disparities result from discriminatory forces, such as socio-economic factors, which operate independently of the State or the KCMSD. Jenkins III, 515 U.S. at 117, 115 S.Ct. at 2063, 132 L.Ed.2d at 99 (Thomas, J., concurring). Also, the span of time between the present disparities and the past discriminatory conduct may attenuate the causal link. Id. Freeman’s emphasis on causation and Jenkins III ‘s emphasis on *1304 “good faith” and “practicability” demonstrate the Supreme Court’s judgment that the Constitution does not obligate school systems to eradicate every racial disparity and every lingering effect of prior discrimination.15 Further, in this context where there are co-violators, Jenkins III ‘s emphasis on each violator’s role during the remedial phase of the case demonstrates the Supreme Court’s judgment that the Constitution will not hold defendants accountable for a co-defendant’s deficient performance in the remedial phase. Instead, the two cases essentially establish a standard for determining when a wrongdoer’s past discrimination is the proximate cause of racial disparities within the school system. If the constitutional violator has made a good faith effort to take all practicable steps within its control to eliminate vestiges of its prior discrimination, that violator is not the proximate cause of any racial disparities even if it is, in some sense, a direct cause. The fact that disparities among the races linger is relevant to whether both wrongdoers have taken all practicable steps in their good faith, remedial effort and, thus, relevant to whether the school

district has attained unitary status. Lingering disparities, however, are not dispositive of a wrongdoer’s continued individual liability nor of a school district’s achievement of unitary status. This standard properly balances the court’s equitable power to compel a constitutional violator to remedy its wrong with the constitutional restraints of separation of powers and federalism. See Jenkins III, 515 U.S. at 88, 115 S.Ct. at 2049, 132 L.Ed.2d at 80 (setting forth three-part framework to aid district courts’ equitable balancing of interests); id. at 96–98, 97–100, 115 S.Ct. at 2053–54, 2054–55, 132 L.Ed.2d at 86, 87 (indicating that the restraints of federalism and separation of powers limit the court’s exercise of equitable power); id. at 114–15, 115 S.Ct. at 2062, 132 L.Ed.2d at 97 (O’Connor, J. concurring) (same); id. at 128–32, 115 S.Ct. at 2069–71, 132 L.Ed.2d at 107–08 (Thomas, J. concurring) (same). It requires the wrongdoer to take corrective action while ensuring a seasonable restoration of power to state and local authorities, which are politically accountable and better-designed to manage the day-to-day operations of a school district. Refusing to hold a constitutional violator responsible for its co-violator’s deficient performance in the remedial phase likewise strikes an appropriate balance among the identified interests. Emphasizing a coviolator’s remedial role ensures that power is restored to at least one politically accountable body once it has demonstrated compliance with the Constitution.
Applying these principles to this case, the Court did not misapply Jenkins III ‘s two-part ultimate inquiry. Rather, the Court applied the test in light of the Supreme Court’s later direction to consider the State’s limited responsibility during the remedial phase. See Jenkins III, 515 U.S. at 99–100, 115 S.Ct. at 2055, 132 L.Ed.2d at 88. Jenkins III ‘s directive plainly suggested that the State’s limited responsibility for funding *1305 the remedial program attenuated the causal link between the state-mandate of segregation and present racial disparities in the school district and also between the prior conduct and the school district’s failure to achieve unitary status. Thus, it was this Court’s task to inquire whether the State had, in good faith, done everything practicable within its responsibility (i.e., funding) to eliminate the vestiges of its prior order of segregation. If so, the State would not be legally responsible (i.e., not a proximate cause) for racial disparities within the school district and, consequently, continued court-supervision over the State would be an abuse of the Court’s equitable power.
The State has been responsible only for funding the remedial phase of this case. It has contributed approximately $1.2 billion to the KCMSD and has agreed to pay an additional $320 million over the next three years. KCMSD, on the other hand, was responsible for implementing the remedy. As discussed previously, KCMSD’s past performance of its duties was deficient and wasteful. Furthermore, evidence showed that neither the State nor the KCMSD were responsible for some demographic and socio-economic factors that have perpetuated lingering disparities within the KCMSD. Finally, the State has not mandated segregated schools since before 1954. On the other hand, although the Court made no relevant factual findings on the issue, it suggested that the State’s over-litigious record may have been in bad faith and may have causally contributed,to the remaining disparities in the school district. See Order of March 25, 1997 at 44. The Court also found that the State was partially responsible for some of the discriminatory social forces that perpetuated racial disparities in the school district. See Order of March 25, 1997 at 8 (stating that a number of discriminatory state laws had the effect of placing the State’s imprimatur on racial discrimination and, thus, had contributed to the creation and maintenance of a dual housing market, which perpetuated lingering disparities within the KCMSD (citing the findings in Jenkins v. Missouri, 593 F.Supp. 1485, 1503 (W.D.Mo.1984))). The State’s discriminatory acts, however, occurred thirty and forty years ago. See Jenkins, 593 F.Supp. at 1503. The KCMSD’s deficient performance, the socio-economic factors, the State’s litigious record, the State’s acts which fueled discriminatory social forces, and the span of time since the last discriminatory acts were relevant to determining whether racial disparities in the school district remained because of (i) the KCMSD’s bad faith failure to take all practicable steps to remedy the vestiges, (ii) the State’s bad faith failure to take all practicable steps to remedy the vestiges, or (iii) both, or (iv) because of some other factors for which neither the State nor the KCMSD were legally responsible.
Evidence of the KCMSD’s unfocused implementation of the remedial program for eleven years, the role of discriminatory forces independent of either the State or the KCMSD, and the span of time between the State’s prior order of segregation and the present racial disparities amply demonstrated that the State, which had expended millions of dollars, was not legally responsible for any remaining disparities nor for the school district’s failure to achieve unitary status. The State’s good faith expenditure of approximately $1.2 billion and its promise to pay an additional $320 million over the next three years satisfied the State’s obligation to do everything practicable within its realm of responsibility to eliminate remaining vestiges of its past mandate of segregation.16 Consequently, retaining control over the State would have been an abuse of the Court’s *1306 equitable power. The KCMSD, on the other hand, had not demonstrated that it had, in good faith, done everything practicable within its power to eliminate the vestiges of its prior discrimination. Consequently, the Court refused to relinquish control over the KCMSD and refused to grant unitary status.
Plaintiffs do not contend that the Court lacks equitable authority to modify its own injunctions. Supreme Court precedent would preclude such an argument. See, e.g., Freeman, 503 U.S. at 488, 112 S.Ct. at 1444–45 (“A federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control.”). Thus,

their challenge must be to the Court’s reading of Jenkins III or to the primary underpinning of the Court’s decision to release the State from liability, which was a predominantly fact-based judgment about good faith, practicability, and legal causation. However, Plaintiffs reading of Jenkins III is not persuasive and does not convince the Court that they are likely to succeed on the merits of their appeal. Further, although the fact-based judgments have serious consequences, they involve issues that district courts are accustomed to resolving.17 Consequently, based on the plain implications of Jenkins III and on the sound judgments of Judge Clark discussed above, the Court finds that Plaintiffs have not satisfied their burden of demonstrating the likelihood that they will succeed on the merits of their appeal.

D. Public Interest
The public—including the schoolchildren, parents, and faculty—have an interest in an orderly, well-planned transfer of power from the Court to the state and local government. It is obvious that Judge Clark contemplated this interest and, consequently, seriously considered the parties’ arguments that fiscal chaos would ensue if he declared unitary status without much forewarning. See, e.g., Order of March 25, 1997 at 4–5. It is equally obvious that Judge Clark recognized that Jenkins III did not approve of the history of this remedy. See, e.g., id. In deference to the dictates of Jenkins III, he repeatedly indicated that he expects the KCMSD to attain unitary status within the next three years and, with respect to some areas, much sooner. These pronouncements were not unfounded speculation. Judge Clark supervised the remedy for eighteen years and convened a rigorous, three-week hearing on the matter. Thus, Judge Clark’s approval of the settlement and substantial forewarning about the impending finding of unitary status complies with the legal directives of the Supreme Court while still avoiding turmoil of an abrupt declaration of unitary status and withdrawal of court-supervision.18 It also gives the KCMSD ample funding to begin its journey to self-sufficiency and a non-adversarial companion in the State to offer guidance.

III. Order
Based on the foregoing, it is hereby ORDERED that Plaintiffs’ motion under Federal Rule of Civil Procedure 62(c) for a stay of the Court’s approval of the settlement agreement pending appeal is DENIED.

All Citations 965 F.Supp. 1295, 119 Ed. Law Rep. 146

Footnotes

1

See Pl. Memo. at 7–8 (“The harm to the schoolchildren from large budget reductions necessitated by the

Agreement which result in lost educational programs is irreparable.... There is no denying that approval of the

Agreement will mean substantial modiﬁcations to the magnet plan and the anticipation of a reduction in their

choices at the entering grades ..., or the anticipation of the elimination of a child’s chosen theme, will immediately

begin to have ripple effects on the decision making of parents and children.”)

2

See Pl. Memo. at 8 (“More harm results because approval of the Agreement signals parents that the future is

unsettled—that they cannot be conﬁdent that there will be a KCMSD capable of providing a quality education at

the end of three years because there is no reason to believe that KCMSD will have a means of replacing not only

the State contribution to desegregation funding but the court-ordered portion of the tax-levy as well ... Recapturing

alienated parents, students, and educators will be nearly impossible.”)

3

See Pl. Reply at 2 (“Under the Agreement ... this Court will be required to adopt a remedy that is constrained not

by effectiveness, but by how it coincides with KCMSD’s need to reduce its budget by at least $55 million over

three years, irrespective of effectiveness.”).

4

The Court can ﬁnd only one instance where Plaintiffs suggest the practical effect of staying the agreement and

how that effect would give them relief: “Plaintiffs seek only a stay of the approval of the Agreement, not a stay of

the District’s planning for a self-sufﬁcient future. Courts in several desegregation stay opinions have distinguished

between ‘implementation’ and ‘planning,’ staying the former but requiring that the latter continue.” Pl. Memo. at 9;

see also Pl. Reply at 3 (“The KCMSD has no plan and budget for the next school year ... this Court must adopt a

plan and a budget supporting the plan in short order. Whether that plan is constrained unconstitutionally by the

unsettled—that they cannot be conﬁdent that there will be a KCMSD capable of providing a quality education at the end of three years because there is no reason to believe that KCMSD will have a means of replacing not only the State contribution to desegregation funding but the court-ordered portion of the tax-levy as well ... Recapturing alienated parents, students, and educators will be nearly impossible.”)

3

See Pl. Reply at 2 (“Under the Agreement ... this Court will be required to adopt a remedy that is constrained not

by effectiveness, but by how it coincides with KCMSD’s need to reduce its budget by at least $55 million over

three years, irrespective of effectiveness.”).

4

The Court can ﬁnd only one instance where Plaintiffs suggest the practical effect of staying the agreement and

how that effect would give them relief: “Plaintiffs seek only a stay of the approval of the Agreement, not a stay of

the District’s planning for a self-sufﬁcient future. Courts in several desegregation stay opinions have distinguished

between ‘implementation’ and ‘planning,’ staying the former but requiring that the latter continue.” Pl. Memo. at 9;

see also Pl. Reply at 3 (“The KCMSD has no plan and budget for the next school year ... this Court must adopt a

plan and a budget supporting the plan in short order. Whether that plan is constrained unconstitutionally by the

Agreement matters immensely.”).

5

The Court does not address whether the loss of particular educational programs, such as the magnet program, is

a cognizable injury. It is highly questionable whether any of the active programs are “constitutionally mandated”

as part of an effective remedy. Thus, elimination or modiﬁcation of particular programs—including the magnet

program—might not be the basis of a charge of irreparable injury so long as the school system can show that it is

pursuing an effective remedy to the extent practicable. See Jenkins III, 515 U.S. at ––––, 115 S.Ct. at 2073, 132

L.Ed.2d at 111 (“[W]e must remember that a deserving end does not justify all possible means.”). Such evidence

was presented that a more practicable, efﬁcient remedy could be created without sacriﬁcing the effectiveness by

restructuring the school system’s programs. See Order of March 25, 1997 at 31 (“... within a two- to three-year

period, the KCMSD can be reorganized in a way that will save many millions of dollars in stafﬁng costs,

transportation costs, and program expenses without sacriﬁcing all of the gains which the KCMSD has made in

eliminating racial isolation.”).

6

See Order of March 25, 1997 at 40 (stating that, if the school district “receives $320 million from the Agreement

and equalizes spending over a ﬁve-year period, the KCMSD would still rank as one of the top ten spending

districts in the nation.”).

7

See Order of March 25, 1997 at 40–41.

8

See, e g., Order of March 25, 1997 at 45 (“[T]he Court cannot fail to see excess expenses in the top-heavy

administration in the KCMSD. While extra expenses could be justiﬁed with superior performance, the KCMSD

presents an opposite picture: large expenses and inadequate performance in many areas.”); id. at 53 (“Many

witnesses at the hearing expressed concern at the size and inefﬁciencies of the KCMSD administration.”).

9

See Order of March 25, 1997 at 40.

10

By suggesting that the State may be required to pay more money than the amount required by the agreement,

Plaintiffs implicitly support the necessity of a prompt hearing to determine the funding obligations of the State.

See Pl. Mem. at 9 (“The only cost to the State is ﬁnancial, but any additional money it would pay it can get back

because, if approval of the Agreement is ultimately upheld, the State’s ﬁnancial payments are limited and it would

have simply been spent sooner, but not more altogether.”). Somehow, however, Plaintiffs fail to recognize this as

an immediate harm to an interested party caused by a stay of the agreement. See id. (“There is no harm to the

other interested parties that would result if a stay was granted.”).

11

Calling this agreement a “settlement agreement” is somewhat misleading. Plaintiffs, the injured parties, were not

a party to the agreement. Thus, they did not consent to release the defendant State from liability. Instead, the

agreement was primarily between the State and the KCMSD, the two wrongdoers. Properly understood, the

approval of the agreement was a court-determination to release the State from liability over the objections of

Plaintiffs—it was not a consensual settlement agreement.

12

The absence of cases precisely on point, however, is not rare, nor is it tantamount to the absence of analogous

cases and evident guiding principles. Under the law and facts of this case, Freeman v. Pitts is analogous and

Jenkins III offers evident guidance. See Freeman v. Pitts, 503 U.S. 467, 485, 112 S.Ct. 1430, 1442, 118 L.Ed.2d

108 (1992) (framing the principal issue as “whether a district court may relinquish its supervision and control over

those aspects of a school system in which there has been compliance with a desegregation decree if other

aspects of the system remain in noncompliance”).

13

In one sense of the term, vestiges of past segregation by state decree do remain in our society and in our

schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of

history. And stubborn facts of history linger and persist. But though we cannot escape our history, neither must

we overstate its consequences in ﬁxing legal responsibilities. The vestiges of segregation that are the concern

of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a

causal link to the de jure violation being remedied.... The causal link between current conditions and the prior

violation is even more attenuated if the school district has demonstrated its good faith.

Freeman, 503 U.S. at 495–96, 112 S.Ct. at 1448.

Plaintiffs—it was not a consensual settlement agreement.

12

The absence of cases precisely on point, however, is not rare, nor is it tantamount to the absence of analogous

cases and evident guiding principles. Under the law and facts of this case, Freeman v. Pitts is analogous and

Jenkins III offers evident guidance. See Freeman v. Pitts, 503 U.S. 467, 485, 112 S.Ct. 1430, 1442, 118 L.Ed.2d

108 (1992) (framing the principal issue as “whether a district court may relinquish its supervision and control over

those aspects of a school system in which there has been compliance with a desegregation decree if other

aspects of the system remain in noncompliance”).

13

In one sense of the term, vestiges of past segregation by state decree do remain in our society and in our

schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of

history. And stubborn facts of history linger and persist. But though we cannot escape our history, neither must

we overstate its consequences in ﬁxing legal responsibilities. The vestiges of segregation that are the concern

of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a

causal link to the de jure violation being remedied.... The causal link between current conditions and the prior

violation is even more attenuated if the school district has demonstrated its good faith.

Freeman, 503 U.S. at 495–96, 112 S.Ct. at 1448.

14

In order for a “vestige” to supply the ground for an exercise of remedial authority, it must be clearly traceable to

the dual school system.... District Courts must not confuse the consequences of de jure segregation with the

results of larger social forces or of private decisions. It is simply not always the case that demographic forces

causing population change bear any real and substantial relationship to a de jure violation ... As state-enforced

segregation recedes farther into the past, it is more likely that these kinds of continuous and massive

demographic shifts will be the real source of racial imbalance or of poor educational performance in a school

district. And as we have emphasized, it is beyond the authority and beyond the practicable ability of the federal

courts to try to counteract these social changes.

Jenkins III, 515 U.S. at 117–18, 115 S.Ct. at 2063, 132 L.Ed.2d at 98–99 (Thomas, J., concurring) (internal

quotations and citations omitted).

15

Prior Supreme Court cases suggested that state and local governments who had mandated dual school systems

did have such an obligation to extinguish all effects of prior discrimination. See, e.g., Green v. County School Bd.

of New Kent County, 391 U.S. 430, 437–38, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968) (“School boards ...

operating state-compelled dual systems [are] clearly charged with the afﬁrmative duty to take whatever steps

might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and

branch.”). Green, which followed Brown I and Brown II, was the ﬁrst Supreme Court case to hold that the

Constitution obligated governments which had mandated dual school systems to take afﬁrmative, corrective steps

to integrate the schools. Compare Brown v. Bd. of Educ., 347 U.S. 483, 495, 74 S.Ct. 686, 692, 98 L.Ed. 873

(1954) (“Brown I”) (stating that “[s]eparate educational facilities are inherently unequal,” but failing to articulate

what remedial action was required of the school systems) and Brown v. Bd. of Educ., 349 U.S. 294, 300–01, 75

S.Ct. 753, 756–57, 99 L.Ed. 1083 (1955) (“Brown II”) (stating that the school systems were required to “make a

prompt and reasonable start” toward “achiev[ing] a system of determining admission to the public schools on a

nonracial basis”) with Green, 391 U.S. at 437–38, 88 S.Ct. at 1693–94. Since Green, the Supreme Court has

gradually chiseled a more deﬁnite standard of the school systems’ corrective duties, as illustrated in Freeman v.

Pitts and Jenkins III. See, e.g., Freeman, 503 U.S. at 487–88, 112 S.Ct. at 1444 (deﬁning “unitary” status and

indicating that it can be attained before a school district eliminates every remote vestige of prior discrimination);

Jenkins III, 515 U.S. at 88, 115 S.Ct. at 2049, 132 L.Ed.2d at 81 (indicating that unitary status is achieved when a

wrongdoer proves that it has complied with the court decree in good faith and has done everything practicable to

remedy the effects of the prior discrimination).

16

See Order of March 25, 1997 at 11 (stating that, although the school district has not yet achieved unitary status,

the State can no longer be held legally responsible for the remaining vestiges of prior discrimination because it

has never been responsible for the implementation of the remedial plan); id. at 37 (paraphrasing the State’s

argument, which ultimately prevailed, that it fulﬁlled its remedial obligations under the Constitution by providing

the KCMSD with sufﬁcient funds with which the KCMSD should have been able to implement programs to

eliminate the vestiges of prior discrimination); id. at 39, 43, 44 (noting that the State has been responsible only for

funding the remedy, not for implementing it); id. at 43–44 (indicating that many of the goals of programs funded by

the State have already been reached); id. at 48 (“[The KCMSD’s] deﬁciencies in performance cannot be blamed

on lack of ﬁnancial resources.”).

17

Whether a constitutional violator remains liable for his past acts of discrimination is a mixed question of law and

fact. Consequently, the district court’s factual ﬁndings are subject to the clearly erroneous standard of review,

while the district court’s legal conclusions are subject to de novo review. McCauley–Bey v. Delo, 97 F.3d 1104,

1105 (8th Cir.1996). Accordingly, Plaintiffs will have a substantial burden challenging the Court’s factual ﬁndings.

This standard of review supports the conclusion that Plaintiffs are not likely to succeed on the merits of their

appeal.

18

Just as a court has the obligation at the outset of a desegregation decree to structure a plan so that all

available resources of the court are directed to comprehensive supervision of its decree, so too must a court

provide an orderly means for withdrawing from control when it is shown that the school district has attained the

requisite degree of compliance. A transition phase in which control is relinquished in a gradual way is all

appropriate means to this end.

See Freeman, 503 U.S. at 489–90, 112 S.Ct. at 1445.

on lack of ﬁnancial resources.”).

17

Whether a constitutional violator remains liable for his past acts of discrimination is a mixed question of law and

fact. Consequently, the district court’s factual ﬁndings are subject to the clearly erroneous standard of review,

while the district court’s legal conclusions are subject to de novo review. McCauley–Bey v. Delo, 97 F.3d 1104,

1105 (8th Cir.1996). Accordingly, Plaintiffs will have a substantial burden challenging the Court’s factual ﬁndings.

This standard of review supports the conclusion that Plaintiffs are not likely to succeed on the merits of their

appeal.

18

Just as a court has the obligation at the outset of a desegregation decree to structure a plan so that all

available resources of the court are directed to comprehensive supervision of its decree, so too must a court

provide an orderly means for withdrawing from control when it is shown that the school district has attained the

requisite degree of compliance. A transition phase in which control is relinquished in a gradual way is all

appropriate means to this end.

See Freeman, 503 U.S. at 489–90, 112 S.Ct. at 1445.

 
 122 F.3d 588 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd-Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs—Appellants, American Federation of Teachers, Local 691, Intervenor below—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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education; School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of
Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of Directors; John W. Still, Member of the Board of Directors, Defendants—
Appellees. Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs—Appellees, American Federation of Teachers, Local 691, Intervenor below—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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants—Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants—Appellees.
Nos. 97–1968, 97–2078. |
Submitted May 27, 1997. |
Decided Aug. 12, 1997.
Synopsis In desegregation action, state moved for determination of unitary status and approval of transition plan and settlement reflected in agreement between state and school district, which would result in dismissal of state from case. The United States District Court for the Western District of Missouri, Russell G. Clark, Senior District Judge, 959 F.Supp. 1151, denied motion

for unitary status in all respects except extra-curricular activities, but approved settlement agreement, and appeal was taken. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) presumption that current disparities were result of prior unconstitutional conduct applied to disparities in student achievement; (2) district court did not err in finding that district had not achieved unitary status with respect to student assignments, transportation, facilities, or faculty and staff assignments, and (3) district court did not abuse its discretion in approving agreement between district and state.
Affirmed.
Attorneys and Law Firms
*590 Arthur A. Benson II, Kansas City, MO, argued, for Appellants.
Mark A. Thornkill, Kansas City, MO, argued, for Appellees Still, Hill, Newsome, Kurtz, Curls, Mayer, Simmons, Loewenstein, Riley, Williams, and School District of Kansas City.
John R. Minich, Kansas City, MO, argued, for Appellees Thompson, Wellington, Preston, williams, Davis, Herschend, Missouri State Board of Education, Holden, Carnahan, and State of Missouri.
Taylor Fields, Charles R. Brown, David A. Naatz, Keith R. Powell, Michael F. Delaney, Terry W. Schackmann, and John P. Jennings, Kansas City, MO, on the brief, for Kansas City Missouri School District.
Bart A. Matanic and Michael J. Fields, Kansas City, MO, on the brief, for State of Missouri.
Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
After the Supreme Court’s decision in Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ), the *591 State of Missouri filed a motion in this lengthy school desegregation case asking the court to declare the Kansas City, Missouri School District unitary, to dissolve all injunctions, and to relinquish jurisdiction of the case. Less than a month later, the State and the KCMSD entered into an agreement under which the State would pay the KCMSD a total of $320 million over three years and be released from any further obligation in this desegregation litigation. The court held a hearing from January 13 through January 31, 1997, receiving testimony from a large number of witnesses and a considerable volume of documentary evidence. On March 25, 1997, the district court1 entered its order denying the motion for unitary status in all respects except extra-curricular activities, but approving the agreement between the State and the KCMSD. Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.1997). The Jenkins Class appealed the ruling approving the agreement.2 The State appealed the district court’s order denying a declaration of unitary status. We affirm the district court’s order.
In discussing the State’s motion for unitary status, the district court first outlined its earlier orders finding that there had been a system-wide reduction in student achievement in the schools of the KCMSD. 959 F.Supp. at 1153. It looked to its earlier orders identifying the purpose of the public schools as furnishing quality education to their students and identifying educational achievement as a proper goal in a desegregation remedy. Id. (citing Jenkins v. Missouri, 593 F.Supp. 1485, 1506 (W.D.Mo.1984); Jenkins v. Missouri, 639 F.Supp. 19, 24 (W.D.Mo.1985), aff’d as modified, 807 F.2d 657 (8th Cir.1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987)). The court then briefly reviewed the progress made in the KCMSD. 959 F.Supp. at 1156.
The court determined that the burden of proof was on the State, the adjudged constitutional violator, to show that no vestiges of prior discrimination remained in the KCMSD. Id. at 1156–57. It pointed out that once a court has found an unlawful dual school system, the plaintiffs are entitled to a presumption that existing disparities are causally related to prior segregation, and the burden of proving otherwise rests on defendants. Id. at 1157 (citing Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 2978–79, 61 L.Ed.2d 720 (1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 211 n. 17, 93 S.Ct. 2686, 2699 n. 17, 37 L.Ed.2d 548 (1973)). One of the vestiges the court found was an achievement gap between black and white students in the KCMSD. The State argued that the Jenkins Class should bear the burden of proving that this student

achievement disparity was caused by the State’s constitutional violation. The court rejected the State’s arguments, concluding that the achievement gap issue should be governed by the same burden-shifting rules as the other factors, and that the State must prove it did not cause the disparity. Id.
The court analyzed in detail the testimony on this issue, including expert opinions. The court found that a portion of the achievement gap was attributable to de jure segregation and that unitary status had not been attained in this respect. The court ordered the KCMSD to eliminate that portion of the achievement gap within three years. Id. at 1165.
The court then turned to an analysis of the Green factors.3 With respect to student assignments or the racial isolation vestige, the court recognized testimony that the KCMSD had realized a high degree of racial balance, *592 but pointed out that the schools lost significant enrollment of white suburban students in the 1995–96 school year following the Jenkins III decision. Id. at 1166. Moreover, the racial imbalance index showed an increase in 1996 for both elementary and secondary schools. Id. The court looked at testimony that the KCMSD must develop and implement a student assignment system focusing exclusively on the pupils residing in the district, and that this could be accomplished within a two- to three-year period. Id. The district court concluded that the KCMSD had not yet achieved unitary status with regard to the racial isolation vestige, but that within a three-year period it would be possible to assess the effects of Jenkins III on minority enrollment. Id. at 1167.
With respect to faculty and staff assignments, the district court recounted the testimony that the district had maintained a substantial degree of racial balance in faculty assignments. Id. at 1166. However, the court also recognized testimony that, during recent years, while the secondary schools fell within the desired variance level, the elementary schools had shown a steady decline in compliance. Id. at 1166. The court held that the steady decline at the elementary school level of a balanced faculty warranted further investigation, and so “the court [found] that the KCMSD has not yet achieved unitary status as to faculty assignments.” Id. at 1168. However, the court also stated that the KCMSD should be able to remedy this defect in a period of three years. Id.
With respect to the facilities of the KCMSD, the court observed that the capital improvements already ordered were almost, but not entirely, completed. The court held that declaration of unitary status should be withheld until the ordered improvements were completed, which would certainly be accomplished in less than three years. Id. at 1168.
The court held that transportation was so closely related to the racial isolation vestige that it was not advisable to relinquish jurisdiction over the transportation aspect until the KCMSD was unitary in student assignments. The court therefore declined to find the State had carried its burden of proof on the transportation vestige. Id.
As to the State’s motion for unitary status regarding extra-curricular activities, the court held that the State has carried its burden of proving the KCMSD unitary in this respect. The adverse parties seem to agree on this issue. Id. The court rejected the State’s argument in all other respects.
The court then considered whether to approve the agreement between the State and the KCMSD releasing the State from liability upon the payment of $314 million (plus an additional $6 million added by the court after the agreement was entered). Id. at 1152. The court looked at various figures reflecting the spending level in the KCMSD per pupil as compared with the other largest school districts in the United States. Id. at 1170. It recited the testimony of Dr. John Murphy that the transition funding provided under the agreement would be sufficient to allow a systematic and orderly transition period during which the KCMSD could become self-sufficient. It looked to Dr. Murphy’s testimony that if the agreement were approved, the KCMSD would have sufficient funds not only to offer quality education, but to make the curriculum and other reforms necessary to improve student achievement. Id. The court also looked at testimony concerning the possibilities of the KCMSD achieving other savings, such as reduced transportation expenditures. The fact that much of the capital improvement program had been paid for out of current revenue, rather than debt, created a situation in which the district would have to pay little for debt service in future years. Id. at 1171. The court also considered that the racial isolation vestige could be rectified in two years, and that many of the goals of the quality education programs had been reached. Id. at 1171–72.
The district court rejected arguments of the Jenkins Class that the court had no authority or jurisdiction to approve the agreement. Id. at 1172. The district court concluded that, considering the KCMSD’s proximity to unitary status, any remaining obligation of the State to the KCMSD school children would be discharged by the payment of the funds provided in the agreement. It *593 observed that the State has been responsible for the funding, and not the implementation, of the desegregation programs. The court therefore modified the joint and several liability finding to make the KCMSD liable individually. The court decreed that the State’s obligation shall end and the State will be entitled to an order from the court dismissing it from the action when it has paid the sums provided for in the agreement. Id.

While the court had released the State from further obligations, except for the payment of funds, it suggested that Dr. Robert Bartman of the Department of Elementary and Secondary Education of Missouri had the educational expertise and familiarity with the history of the KCMSD desegregation effort to provide guidance during the transition period, and that the Department should give approval before decisions are made about the necessary budget cuts. Id. at 1178. This was made as an appeal to the Department and Dr. Bartman’s sense of duty. The court concluded that if the Department and Dr. Bartman declined the court’s appeal, then the court would seek the Department’s help in finding a special master to oversee the KCMSD. Id. at 1179. We are informed that the Department and Dr. Bartman have declined this invitation. The issue, however, remains before the district court, and while the district judge presiding over this case for many years has turned over superintendence of the case to another judge,4 we are satisfied that the urgency of timely disposition of further supervision over the district will be promptly considered.
I.
The State argues that it is entitled to a declaration that the KCMSD has achieved unitary status. Interestingly, the KCMSD, as well as the Jenkins Class, defend the district court’s holding that the KCMSD is not unitary. The threshold issue is whether the State or the Jenkins Class bears the burden of proof on this issue.
[1] [2] Generally, once there has been a finding that a defendant established an unlawful dual school system in the past, there is a presumption that current disparities are the result of the defendant’s unconstitutional conduct. See Keyes v. School Dist. No. 1, 413 U.S. 189, 208–09, 93 S.Ct. 2686, 2697–98, 37 L.Ed.2d 548 (1973); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537–38, 99 S.Ct. 2971, 2978–80, 61 L.Ed.2d 720 (1979); Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 1447–48, 118 L.Ed.2d 108 (1992); see also United States v. Fordice, 505 U.S. 717, 744, 112 S.Ct. 2727, 2743–44, 120 L.Ed.2d 575 (1992) (O’Connor, J., concurring). Only when a school district has attained unitary status does the burden of proving disparities were caused by intentional segregation shift back to the plaintiffs. See School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir.1987); see also Oliver v. Kalamazoo Bd. of Educ., 640 F.2d 782, 810 (6th Cir.1980) (error in assigning burden of proof to defendants where defendants’ liability under earlier decree “had been satisfied”).5 If, however, a defendant is joined after the finding of liability, that defendant is, naturally, not subject to the presumption applied to adjudicated constitutional violators. See United States v. City of Yonkers, 833 F.Supp. 214, 220 (S.D.N.Y.1993) (shifting burden to new defendant would be “problematic”).
[3] The State contends that the general rule of presuming causation applies to disparities of the sort mentioned in Green, 391 U.S. at 435, 88 S.Ct. at 1692–93, but not to disparities in student achievement. The State contends this distinction is appropriate because the defendants have control over the Green factors, such as student assignment, equality of facilities, and transportation, whereas the defendants do not have control over student achievement. The State argues that too many external factors affect student achievement to require the State to prove *594 that it did not cause low minority achievement.
This argument is not persuasive. As the Supreme Court noted in Jenkins III, the Green factors can also be affected by forces outside the defendants’ control:
Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement.
515 U.S. at 102, 115 S.Ct. at 2055–56 (citation omitted). The task of the court in analyzing either type of disparity is to determine whether it was caused by defendants’ misconduct or by external factors. The burden of proof rules are simply the framework for making that inquiry.
There is, nevertheless, a meaningful distinction between the Green factors and the student achievement factor. Disparities in the Green factors, such as student assignment, inherently define a dual school system, which could not exist without such disparities. See Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776 (3d Cir.1996) (Green factors are per se vestiges of de jure segregation). On the other hand, disparity or impairment in student achievement may or may not be found in a particular case and may or may not be the result of a segregated or dual system. For this reason, the presumption of

causation will only be applied to student achievement disparities if the court has already specifically found that student achievement in the district has suffered as a result of the dual system. Thus, in Coalition to Save Our Children, the district court had not included disparity in student achievement as a subject for ancillary (i.e., non-Green ) relief in its remedial decree. When the defendants later moved for a declaration of unitary status, the Third Circuit held that the plaintiffs had the burden of proving that disparities in student achievement were vestiges of de jure segregation. Id. at 776–77. Accord City of Yonkers, 833 F.Supp. at 222 n. 3 (no initial finding that segregation caused reduction in student achievement; plaintiffs bear burden of showing causation).
In the early days of this case, the district court specifically found impairment in student achievement in the KCMSD was a result of the dual school system. In 1984 the district court found:
The Court finds the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District.
593 F.Supp. at 1492. Again, in 1985, the District Court found:
Segregation has caused a system wide reduction in student achievement in the schools of the KCMSD....
....
... [The] education process has been further “bogged down” in the KCMSD by a history of segregated education. Too often, as a result, a higher percentage of black students are among the lower achievers.
639 F.Supp. at 24, 28. Therefore, the Jenkins Class was entitled to a presumption that current deficiencies in student achievement were a continuation of the vestige already identified. See Baliles, 829 F.2d at 1311–12 (rejecting argument that presumption of causation only applies to Green factors, not to student achievement). But see People Who Care v. Rockford Bd. of Educ., No. 89 C 20168, 1996 WL 364802 at *73 n. 146 (N.D.Ill. June 7, 1996) (presumption of causation not applicable to achievement disparity), aff’d in part and rev’d on other grounds, 111 F.3d 528, 537–38 (7th Cir.1997) (in light of lack of evidence about proportion of achievement gap caused by defendants, district court erred in ordering defendants to close 50% of gap).
The State contends that in Jenkins III the Supreme Court held the district court’s findings of student achievement vestiges in the KCMSD were inadequate and therefore ineffective to shift the burden of proof to the State. In fact, the Supreme Court did not say the district court’s student achievement findings were insufficient to establish liability for the student achievement vestige. To the contrary, the Court specifically contemplated that the reduction in student achievement must be remedied:
*595 Thus, the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a system-wide reduction in student achievement and the existence of 25 racially identifiable schools....
515 U.S. at 90, 115 S.Ct. at 2050. As the State points out, the Court observed that the district court had never made findings on the severity of the vestige, or the “incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs.” Id. at 101, 115 S.Ct. at 2055. The Court made this observation in the context of discussing what measure of improvement should be required to establish unitariness. In the same paragraph the Court stated: “Under our precedents, the State and the KCMSD are entitled to a rather precise statement of [their] obligations under a desegregation decree.” Id. (quotation omitted). The Court did not question the existence of the achievement vestige; instead, it ordered that the district court clarify the quantum of the student achievement vestige, so that the parties could know what mark they and the court were aiming at. But see id. at 118, 115 S.Ct. at 2063–64 (Thomas, J., concurring) (questioning validity of 1984 finding). In the order we review today, the district court complied faithfully with the Supreme Court’s command to quantify the vestige.
The State also argues that the passage of time since the days of state-mandated segregation makes it inappropriate to presume that current conditions resulted from that segregation. Justice Scalia’s concurrence in Freeman suggested that the passage of time renders the presumption of causation inappropriate. See 503 U.S. at 506, 112 S.Ct. at 1453 (Scalia, J., concurring) (“[T]he rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede further into the past.”). However, the majority opinion in Freeman continued to recognize the presumption. The majority opinion acknowledged that the passage of time does have some probative value,

tending to strengthen a defendant’s case that de jure segregation did not cause current disparities. The majority stated:
As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system.... In light of its finding that the demographic changes in DeKalb County are unrelated to the prior violation, the District Court was correct to entertain the suggestion that DCSS had no duty to achieve system-wide racial balance in the student population.
Id. at 496, 112 S.Ct. at 1448. At the same time, the Freeman majority reiterated: “The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.” Id. at 494, 112 S.Ct. at 1447. Keyes specifically rejected the idea that the passage of time could cause the burden to shift back to the plaintiffs: “[C]ertainly plaintiffs in a school desegregation case are not required to prove ‘cause’ in the sense of ‘non-attenuation.’ ” 413 U.S. at 211 n. 17, 93 S.Ct. at 2699 n. 17. Therefore, we conclude that the passage of time6 is an evidentiary consideration, but not a bar to the usual burden-shifting rules.
The State also argues that the presumption of invidious causation should not be applied to the State because the State’s obligation has only been to pay for the remedy, not to implement it. We deal with this argument infra at pages 16–18.
II.
Jenkins III reiterated the standard for determining whether a school district has become unitary:
*596 [A]mong the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. [Freeman v. Pitts,] 503 U.S. at 491, 112 S.Ct. at 1445–46.
The ultimate inquiry is whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.
515 U.S. at 89, 115 S.Ct. at 2041 (quotation omitted).
[4] The Court of Appeals reviews the district court’s findings as to the existence of vestiges of segregation under the “clearly erroneous” standard. See Lockett v. Board of Educ., 111 F.3d 839, 841–42 (11th Cir.1997) (per curiam); Coalition to Save Our Children, 90 F.3d at 760; Flax v. Potts, 915 F.2d 155, 157 (5th Cir.1990).
The difficult issue before the district court and before us in this appeal is whether the vestiges of past discrimination have been eliminated to the extent practicable. Before we reach this issue, we will briefly comment on whether there has been full and satisfactory compliance with the decree in those aspects where supervision is to be withdrawn, and whether the State has demonstrated to the public, the parents, and the students of the once disfavored race a good faith commitment to the whole of the court decree.
The Supreme Court observed that the State’s role with respect to quality education programs has been limited to funding, not implementation, of these programs. Jenkins III, 515 U.S. at 101, 115 S.Ct. at 2055. The district court recognized the Supreme Court’s language in its opinion. 959 F.Supp. at 1172. With the passage of time this has been the nature of the State’s compliance. It should be remarked, however, that in the early days of crafting the intra-district remedy, the Jenkins Class, the KCMSD, and the State were called upon to submit proposed remedial plans, and did so. The early orders of the district court accepted the plans put forth by the Jenkins Class and the KCMSD, and rejected the State’s proposals as inadequate. See, e.g., Jenkins v. Missouri, 672 F.Supp. 400, 404 (W.D.Mo.1987), aff’d in relevant part, 855 F.2d 1295 (8th Cir.1988), cert. denied in relevant part, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). Perhaps this established a pattern of either the Jenkins Class or the KCMSD assuming responsibility for proposing remedial measures, and the State relying upon legal

objections to the plan and ultimately ceasing any effort to make a contribution toward directing or administering the aspects of the remedy. The State had an opportunity to help shape the remedy, and perhaps the long history of this litigation would have been different had it accepted the challenge to do more than pay when ordered to do so. Nevertheless, this pattern having been established, the State has undoubtedly complied with the decrees of the district court by funding the programs that have been ordered.
The State places great emphasis on the amount of money that has been spent in Kansas City. It must be remembered in looking back on the long history of this case, however, that the district court found and this court affirmed findings that the physical plant of the KCMSD had literally rotted; that the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District; that the general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty; and finally, that segregation has caused a system-wide reduction in student achievement in the schools of the KCMSD. See Jenkins v. Missouri, *597 855 F.2d at 1300 (citing district court decisions at 593 F.Supp. at 1492, 639 F.Supp. at 24, and 672 F.Supp. at 411).
Restoration of the physical facilities has had a total cost of approximately $500 million, with funds contributed roughly equally by the State and the KCMSD. With respect to educational and other programs, the State has spent approximately $950 million, and the KCMSD has spent about $350 million. The extensive constitutional violations have required extensive expenditures.
Suffice it to say that we are left with some question in our minds as to whether the State has demonstrated a “good-faith commitment to the whole of the court’s decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance.” Freeman, 503 U.S. at 491, 112 S.Ct. at 1446. Justice Souter, in his dissent in Jenkins III, questioned the State’s commitment to complying with the district court’s decree. He quoted the district court’s statement that “during the course of this lawsuit the Court has not been informed of one affirmative act voluntarily taken by the Executive Department of the State of Missouri or the Missouri General Assembly to aid a school district that is involved in a desegregation program.” 515 U.S. at 152, 115 S.Ct. at 2080 (Souter, J., dissenting) (quoting District Court’s Order of Nov. 12, 1986, slip op. at 7). Justice Souter also quoted the following statement of the district court: “The State, also a constitutional violator, has historically opposed the implementation of any program offered to desegregate the KCMSD.... [T]he State has never offered the Court a viable, even tenable, alternative and has been extremely antagonistic in its approach to effecting the desegregation of the KCMSD.” Id. (quoting District Court’s Order of April 16, 1993, slip op. at 2). In view of our analysis of whether the vestiges of segregation have been remedied to the extent practicable, we need not further examine this issue.
III.
[5] We now turn to the issue that the Supreme Court stated was the basic task of the district court, namely deciding whether reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable. In Jenkins III the Supreme Court said:
Under our precedents, the State and the KCMSD are “entitled to a rather precise statement of [their] obligations under a desegregation decree.” [Dowell, 498 U.S.] at 246, 111 S.Ct. at 636. Although the District Court has determined that “[s]egregation has caused a system wide reduction in achievement in the schools of the KCMSD,” 639 F.Supp. at 24, it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs.
515 U.S. at 101, 115 S.Ct. at 2055.
In the order now before us, the district court directed its attention to identifying the incremental effect that segregation has had on minority student achievement, and also to specifying the goals of the quality educational programs. It should first be said that the district court in its order of September 17, 1984, pointed to evidence in the record before it in stating:
The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty.... The District stipulated that as of 1977 they had not

eliminated all the vestiges of the prior dual system. The Court finds the inferior education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri School District.
593 F.Supp. at 1492 (citations omitted).
The court pointed out further that various plans adopted by the KCMSD in an effort to reduce minority isolation had not been effective. The court stated:
During the 1983–84 year, no school had less than 30% black enrollment; 24 schools however are racially isolated with 90 + % black enrollment. The Court finds the District did not and has not entirely dismantled *598 the dual school system. Vestiges of that dual system still remain.
Id. at 1493 (citations omitted).
The court also stated that because most of the schools were in racially segregated neighborhoods before 1954, the adoption of the neighborhood school concept did not substantially change the segregated school system. Id. Optional attendance zones adopted after Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), did not aid the district’s integration, but on the contrary allowed segregated attendance patterns to continue. 593 F.Supp. at 1494.
There is a significant relationship between the testimony the court pointed to in 1984 and the testimony presented at the hearing in January 1997 by the expert witnesses.
The State’s expert witness, Dr. David Armor, testified that in analyzing test scores of black and white students in the KCMSD, using a bell curve with a median score of 50 normalized curve equivalent (NCEs), whites scored about ten NCEs higher than blacks. Armor testified that “most, if not virtually all” of this achievement gap in the Kansas City, Missouri School District was the result of socio-economic conditions. However, Dr. Armor could only identify socio-economic conditions accounting for about two-thirds of the gap; the other third remained unexplained. 959 F.Supp. at 1163.
On the other hand, the expert produced by the KCMSD, Dr. William Trent, testified that after controlling for poverty, family background, and other factors, there was still a “race effect” that could be due to past segregation. Id. at 1158. The gap existed in 1986 and 1988, continues to exist now, and has never been eliminated. Dr. Trent concluded that about 4% to 9% of the achievement gap was explained by race. Id. Significantly, the State’s expert, Dr. Armor, testified that the size of the achievement gap grows larger the longer the children remain in school. Id. at 1159. Moreover, Dr. Trent testified that teachers’ low expectations of achievement in schools with high percentages of minority students also contribute to the achievement gap. Id.
After setting out the substance of the testimony of these expert witnesses, the district court pointed out that the State’s reliance on socio-economic factors was inadequate to explain about 35% of the gap, even taking the State’s expert at his word. Id. at 1163. The court found that Dr. Trent’s analysis showing a “race effect” explaining 4–9% of the gap was “reliable and accurately identifies the incremental portion attributable to the prior de jure discrimination.” Id. The court found that the teacher expectation variable explains 2–4% of the gap, id., and that the teachers’ lower expectations were a result of earlier de jure segregation. Id. at 1164. The court took the high end of these ranges in reaching the figure of 13%. The court also held that the increase in the gap as the children progressed through the KCMSD could also be attributed to discrimination, id. at 1165, and this, together with the gap when the students entered school, was 26% of the achievement gap. The court concluded that these figures translated into a mandate to the school district to reduce the achievement gap by 2.6 NCEs. The court ordered that this task was to be completed within three years. It concluded that KCMSD has not currently attained unitary status regarding the quality of education. Id.
It is evident that the district court rejected Dr. Armor’s opinion that socio-economic factors alone were the cause of the achievement gap in the KCMSD. We cannot say that the district court clearly erred in making this finding. The burden of proof was on the State to prove that it had not caused the gap, and the State’s expert could not explain a third of the achievement gap by his socio-economic theory. The State simply failed to carry its burden, and our discussion could end at this point. But in addition, the district court accepted Dr. Trent’s explanation quantifying that part of the achievement gap resulting from race; that was a finding of fact based upon research by a well-qualified expert.7 Dr. Trent’s testimony provided a *599 rational explanation for the achievement gap and the extent of it, and we cannot conclude that the district court erred in so finding.8

IV.
The State attacks the district court’s denial of unitariness status as to four of the five Green factors—student assignments, faculty and staff assignments, transportation, and facilities.
[6] The KCMSD contended that the current racial balance within its schools was unknown because of the effect of the withdrawal of suburban students after Jenkins III. The district court observed that the student assignment aspect of the remedy in this case had depended primarily on voluntary transfers from the suburbs in conjunction with magnet schools, rather than on mandatory reassignment. Id. at 1166. After Jenkins III, many suburban students left the KCMSD. The district court found that the “ramifications of the withdrawal of the 1476 white students cannot be judged at this time.” Id. at 1167. The court declined to declare the KCMSD unitary in this regard until the effects of this change in the enrollment could be ascertained. Therefore, the State failed to carry its burden of proof that there was no student assignment vestige. The State contends that, whatever the student assignment statistics, the KCMSD is not currently engaging in discriminatory student assignment practices, and therefore there should be no vestige under Pasadena City Board of Education v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).
Under Spangler and Freeman, school districts that have once eliminated the student assignment vestige are not required to readjust student assignments to compensate for subsequent imbalances caused by forces other than intentional segregation. “Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors.” Freeman, 503 U.S. at 494, 112 S.Ct. at 1447. The key distinction between this case, on the one hand, and Spangler and Freeman, on the other, is that there is no finding in this case that the KCMSD ever eliminated the student assignment vestige. The district court’s strategy for eliminating this vestige was the magnet school program, rather than the sort of unilateral reassignment decree used in Spangler. See 427 U.S. at 435–36, 96 S.Ct. at 2704–05. This strategy was at least partly aborted by the Jenkins III ruling, and the district court found that, on the present state of the record, it was impossible to assess the racial balance in the schools during the process of dismantling the original remedy. This finding was not clearly erroneous. Accordingly, the State’s invocation of Spangler and Freeman on this point is premature. See Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th Cir.1985) (“Until a unitary system is created, a school system is not absolved from this duty by reason of demographic changes.”); Haycraft v. Board of Educ., 560 F.2d 755, 756 (6th Cir.1977) (Spangler not relevant where segregation has never been remedied).
[7] The district court found that the transportation factor was so closely bound to student assignment that the uncertainty affecting the student assignment vestige also prevented a finding of unitariness as to transportation. 959 F.Supp. at 1168. In Freeman the Supreme Court foresaw the possibility of such intertwining. “Two or more Green factors may be intertwined or synergistic in their relation, so that a constitutional violation in one area cannot be eliminated unless the judicial remedy addresses other matters as well.” 503 U.S. at 497, 112 S.Ct. at 1449. There is no clear error in the district court’s finding.
[8] As to the facilities factor, the district court found that certain court-ordered renovations remain to be completed. 959 F.Supp. at 1168. The district court did not err in requiring the terms of the court’s decree to *600 be completely fulfilled before relinquishing the ability to enforce compliance with the decree.
[9] In considering the faculty and staff assignments factor, the district court relied on the testimony of the State’s witness Dr. Armor, who testified that, while the KCMSD had once complied with the court’s orders to bring about racial balance in faculty and staff assignments, the percentage of elementary schools complying with the balance guidelines had “decreased steadily” in recent years. Id. at 1168. The court also concluded that it was necessary for the court to retain control over faculty appointments in order to maintain flexibility in other areas, such as reducing expenditures. Id. Under Freeman, the district court retains discretion to determine whether to relinquish jurisdiction on a piecemeal basis. See 503 U.S. at 493, 112 S.Ct. at 1446–47. Where the district court has reason to retain supervision over an area to aid its jurisdiction over unfinished business, Freeman certainly does not require the court to declare partial unitariness. See id. at 497–98, 112 S.Ct. at 1449.
We thus conclude that the district court did not err in finding that the achievement gap vestige had not been remedied to the extent practicable, and that four out of the five Green factors had not been remedied. Thus, the KCMSD could not be held unitary in any aspect other than extra-curricular activities.

V.
The Jenkins Class appeals the district court’s approval of the agreement between the State and the KCMSD. Pursuant to the agreement, the State will be dismissed from this litigation after it pays the KCMSD approximately $320 million over three fiscal years to implement desegregation remedies in the district.
A.
[10] The Jenkins Class contends that we review the district court’s approval of the agreement de novo. The State contends that the district court had discretion to modify its earlier remedial orders based on changed conditions, and that we review such a modification only under an abuse of discretion standard. The KCMSD argues that the district court has broad discretion to determine the scope of its remedy.
[11] There is no single blueprint or universal answer for desegregation cases, see Milliken v. Bradley, 433 U.S. 267, 287, 97 S.Ct. 2749, 2760–61, 53 L.Ed.2d 745 (1977), and “there is obviously no one plan that will do the job in every case.” See Green, 391 U.S. at 439, 88 S.Ct. at 1695. Instead, the district court, which has “firsthand experience with the parties and is best qualified to deal with the ‘flinty, intractable realities of day-to-day implementation of constitutional commands,’ ” has broad and flexible equitable powers to fashion desegregation remedies. United States v. Paradise, 480 U.S. 149, 184, 107 S.Ct. 1053, 1073, 94 L.Ed.2d 203 (1987) (quoting Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 6, 91 S.Ct. 1267, 1271, 28 L.Ed.2d 554 (1971)). “Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann, 402 U.S. at 15, 91 S.Ct. at 1276; see also Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 839 F.2d 1296, 1314 (8th Cir.) (the district court has “broad remedial authority in dismantling segregation”), cert. denied, 488 U.S. 869, 109 S.Ct. 177, 102 L.Ed. 2d 146 (1988). Because the district court possesses such broad discretion, “[o]ur standard of review of the district court’s actions ... is restricted.” Jenkins, 855 F.2d at 1299. We must “give great deference to a district court’s exercise of its broad equitable powers in crafting a remedy in school desegregation cases.” Jenkins v. Missouri, 965 F.2d 654, 656 (8th Cir.1992).
The district court retains this broad equitable authority throughout the entire desegregation case to modify the remedy as it deems necessary. Indeed, the district court has often done so during the long life of this case, and we have affirmed such modifications. The court has “inherent capacity to adjust remedies in a feasible and practical way to eliminate” the unconstitutional conditions. *601 Freeman, 503 U.S. at 487, 489, 112 S.Ct. at 1444, 1445 (holding that the district court had discretion “to order an incremental or partial withdrawal of its supervision and control”). In an earlier Jenkins opinion, we described the district court’s broad and continuing equitable authority:
[A] federal court has “inherent jurisdiction in the exercise of its equitable discretion and subject to appropriate appellate review to vacate or modify its injunctions.” Booker v. Special School Dist. No. 1, 585 F.2d 347, 352 (8th Cir.1978), cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979). School desegregation plans are particularly likely to need adjustment. As the Supreme Court has observed regarding such cases: “[E]quity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.” Milliken [v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2749, 2761, 53 L.Ed.2d 745 (1977) ] (quoting Brown v. Board of Educ., 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955))....
We have said that the basic responsibility for determining whether and to what extent an injunction should be modified “rests primarily on the shoulders of the district court that issued the injunction in the first place.” Booker, 585 F.2d at 353.
Jenkins v. Missouri, 931 F.2d 470, 482 (8th Cir.), cert. denied, 502 U.S. 967, 112 S.Ct. 437, 116 L.Ed.2d 456 (1991).
Thus, our review of the district court’s order approving the agreement is limited, and we may reverse that order only if we conclude that it was an abuse of the court’s discretion. See, e.g., Swann, 402 U.S. at 31, 91 S.Ct. at 1283 (court must affirm desegregation order if it is reasonable, feasible, and workable). To the extent that the court based its order on findings of fact, those findings “may not be disturbed unless clearly erroneous.” Jenkins, 855 F.2d at 1300. With these standards in mind, we

now consider the merits of the agreement.
B.
[12] Certain aspects of the agreement, and its intended effect, are greatly troubling to us. The two constitutional violators, the State and the KCMSD, have agreed to release one of the violators, the State, from any further duty to the constitutional victims beyond the duty to pay the specified sums of money. The constitutional victims are not a party to this agreement. We must bear in mind, however, the Supreme Court’s directive in Jenkins III that the district court “should consider that the State’s role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs.” 515 U.S. at 101, 115 S.Ct. at 2055. The Court also reaffirmed the district court’s ability to declare partial unitary status and permit the violator’s partial withdrawal in phases. See id. at 88, 101, 115 S.Ct. at 2049, 2055. With the Supreme Court’s directives in mind, we will now turn to the considerations supporting approval of the agreement.
The basic foundation for the district court’s approval of the agreement is its assumption that the KCMSD will be unitary within two to three years. As set forth in parts III and IV of this opinion, we affirm the court’s findings regarding unitary status both as to educational achievement and as to the Green factors.
The court properly recognized that the Supreme Court’s standard for unitary status does not require total elimination of the vestiges of discrimination, including the achievement gap, but focuses on whether those vestiges have “been eliminated to the extent practicable.” Id. at 89, 115 S.Ct. at 2049 (quoting Freeman, 503 U.S. at 492, 112 S.Ct. at 1446). Perhaps the district judge who has lived with this case for nearly twenty years was making an optimistic prediction about the KCMSD’s progress toward desegregation in the next two to three years. On the other hand, however, we must affirm if the district court’s findings support its conclusion that a period of two to three years will allow the remaining vestiges to be eliminated to the extent practicable.
The district court relied primarily on the testimony of Dr. John Murphy, a former school superintendent for both the Prince George’s County, Maryland district and the Charlotte–Mecklenburg district in North *602 Carolina, as well as other districts. Both Prince George’s County and Charlotte–Mecklenburg were subject to court desegregation orders during Dr. Murphy’s tenure. Dr. Murphy was asked to develop a transition plan to focus on improving the quality of learning in the KCMSD with the understanding that there would be a significant reduction in expenditures over three years. He expressed the opinion this could be done. Dr. Murphy testified that the agreement would provide the KCMSD with approximately $6,000 per pupil per year, an amount which would be sufficient not only to offer a quality education, but also to make the curriculum and other reforms necessary to improve student achievement. There was evidence in the record that Dr. Murphy had achieved similar goals in Prince George’s County while spending $5,405 per pupil. While it may be true that Dr. Murphy’s testimony dealt with one-third of the district he supervised in the 1992–93 school year and with costs for a different time and locality, the weight of his testimony was to be assessed by the district court. His testimony was clear that the level of funding provided by the agreement would be sufficient to implement the strategies and improvements that he believed were necessary in the KCMSD, similar to those in Charlotte–Mecklenburg or Prince George’s County. The phase-out over a three-year period was critical to Dr. Murphy, and he testified that a gradual reduction in funding would allow district administration and staff to do a better job, even while resources were being tightened.
Dr. Michael Stolee, an experienced educator and former director of the Florida School Desegregation Consulting Center, provided evidence regarding student assignments. He testified that the KCMSD could be reorganized within a two-year period at a cost paid by anticipated revenues in a manner to eliminate racial isolation to the extent practicable.
The district court ordered the KCMSD to reduce the achievement gap by 2.6 NCEs within three years. 959 F.Supp. at 1179. Although the court was unable to say with absolute certainty that the KCMSD will have attained unitary status within the next three years, the court nevertheless concluded that the three-year period was a reasonable time frame for the KCMSD to accomplish its task. Id. The court noted that some witnesses had testified that two to three years was sufficient to eliminate some of the remaining vestiges, while other witnesses had testified that three to five years would be required. Id. It concluded that three years should be sufficient. Id. The court did not find that the remaining vestiges can be eliminated to the extent practicable within this period, but rather expressed a judgment as to the extent of the State’s remaining obligation, which was based on the testimony before it. We cannot conclude that the district court erred or abused its discretion in this regard.

With respect to the remaining Green factors, as we noted above, the district court made factual findings that unitariness could be accomplished in these areas within two to three years. We have reviewed the record as a whole and conclude that these findings are not clearly erroneous. To the extent there are conflicts in the evidence, resolution of such conflicts is for the district court.
In light of the evidence before the district court, we cannot hold its findings to be clearly erroneous or its conclusion to be an abuse of discretion. We confess that if we were the trier of fact, we would not have reached this result with respect to the achievement gap. Our duty, however, is to review the district court’s findings for clear error, rather than to make our own findings, and we do not find a basis for reversal under this standard.
C.
It is also significant that the time frame for terminating state funding contemplated by the agreement is similar to that envisioned by the district court several years ago. In 1993, the court called upon the parties to submit plans for terminating funding based on assumptions that the termination would occur in three, five, seven, or ten years. See District Court’s Order of April 16, 1993, slip op. at 21. The longer periods would terminate funding in either 2000 or 2003. The agreement provides for State payments over three years, which the KCMSD has agreed *603 to spend over five years, thus providing funding until the year 2001 or 2002. Therefore, there is only a small difference between the timing of terminating State funding under the agreement and the time frame previously contemplated by the district court. Resolving issues such as extent and degree is a core function of the district court, and it has considerable discretion in this task. We cannot conclude that the district court abused its discretion in approving this period for the phase-out of the State’s funding obligation.
D.
We have described the State’s role in implementing desegregation remedies in this case as being limited to only providing funding. This issue merits further discussion.9
Certainly, the Missouri Constitution imposes broader responsibilities upon the State than simply providing financing. It provides that the General Assembly shall establish and maintain free public schools for the instruction of all children in the State, and that the supervision of instruction in the public schools shall be vested in a state board of education. Mo. Const. art. IX, §§ 1(a), 2(a).
The State bore a duty under the federal Constitution to eliminate the dual school system created by law, which indeed it has done, but its duty did not end there. The State was further required to eliminate the vestiges of such system to the extent practicable, a far broader responsibility. Despite this constitutional responsibility, however, the State’s only action besides funding has essentially been limited to repeatedly objecting to the remedy proposals submitted by both the Jenkins Class and the KCMSD, as shown by a perusal of this court’s opinions.
Thus, the State’s role in this protracted litigation has evolved into one of funding only. The agreement essentially acknowledges the present state of affairs, and the KCMSD, by entering into the agreement, has expressed its acceptance of this limited role.10
Funding for the KCMSD is unquestionably critical to the continuing success of the district’s programs. Indeed, the present level of funding, on which the continuing operation of the schools is dependent, exists only because of the district court’s authority to enjoin enforcement of state laws that bar the KCMSD from establishing a levy sufficient to operate the schools. See Missouri v. Jenkins, 495 U.S. 33, 52, 110 S.Ct. 1651, 1663–64, 109 L.Ed.2d 31 (1990). We also note that the Missouri General Assembly, in its most recent session, passed a house joint resolution submitting for state-wide voter consideration a constitutional amendment to allow the KCMSD to maintain the levy at its present level with district voter approval, thereby providing a means for continued financial support of the KCMSD independent of court order after the KCMSD is no longer under court supervision. See 1997 Mo. Legis. Serv. H.J.R. No. 9 (Vernon’s).
Sufficient funding is absolutely essential to the school district’s continued viability. All parties agree that the loss of the level

of funding under the current levy would be catastrophic and would reduce the district’s funding to less than half the amount that has been available to the KCMSD for a number of years. Should this loss of funding occur, it would present a changed circumstance that could call for reconsideration of the agreement.
E.
[13] The Jenkins Class argues that the State cannot be dismissed because it is both a constitutional violator and a defendant subject to joint and several liability. The district court has concluded that the State’s liability as constitutional violator will be satisfied by the payments called for in the settlement. It has amended the remedy with *604 regard to joint and several liability.11 Although the agreement contemplates the dismissal of the State in the future, the KCMSD will nevertheless remain subject to court supervision as a constitutional violator liable to the constitutional victims. The KCMSD has not sought a declaration of unitary status with respect to any part of its operations. The effect of the agreement is that the KCMSD now bears sole responsibility for implementing the desegregation remedy and obtaining the funding necessary to do so.
In the district court’s order approving the settlement, the court expressed concerns about the KCMSD’s management, including its top-heavy administration. 959 F.Supp. at 1175–77. The court acknowledged that the KCMSD has made significant progress in the face of substantial obstacles, not the least of which has been the ever-shifting leadership in the KCMSD administration. Id. at 1173. There have been ten district superintendents in the last nine years. Id. The district court made plain that it was simply making observations, and not findings of fact, and that its observations played no role in its decision to approve the agreement. We find instructive, however, the court’s identification of areas in which the district’s performance has been “dismal at best.” Id. These include: (1) the KCMSD still lacks a comprehensive integrated educational and instructional plan; (2) the KCMSD’s fragmented efforts to implement meaningful staff development measures have fallen far short of the mark; (3) ongoing administrative instability has plagued the KCMSD for years, resulting in a lack of accountability for deficiencies; (4) the KCMSD still lacks a security plan; and (5) the KCMSD is unable to produce a budget for a particular fiscal year and reconcile it with actual expenditures for specific line items. Id. at 1173–74.
The district judge making these observations, Judge Russell Clark, has presided over this litigation from its inception in 1977 until his decision to withdraw following issuance of the order which we now review. In that twenty-year period, this case was consistently before the court, and Judge Clark’s extensive knowledge of conditions in the district has come the hard way, through numerous hearings. His observations point to the nature of the problems facing the district and sharply contrast with the type of operation described by Dr. Murphy in his testimony. Needless to say, these problems are substantial obstacles to the KCMSD’s satisfying its obligation to provide quality education. These obstacles are a challenge to the KCMSD’s management, and also impose a heavy duty on the district court to closely supervise and monitor the KCMSD management. Thus, in entering into this agreement, the KCMSD may well have brought upon itself a circumstance that will subject it to more, rather than less, judicial supervision, particularly during the transition period of the next three to four years, and until the vestiges of segregation have been eliminated to the extent practicable.
The district court stated that the KCMSD’s administration was not up to the task of eliminating the remaining vestiges within the short time required by the court. It expressed the view that a strong hand with educational expertise and no “vested interest” was essential to accomplish the difficult goals in this transitory period. Id. at 1178. We have referred to the refusal of the court’s request that Dr. Bartman and DESE play a role in this respect. The district court stated that in this event it would consider appointment of a special master to oversee the KCMSD and urged that time was of the *605 essence. We are in full agreement that on remand the district court should promptly consider the issue of appropriate supervision over the district. The deficiencies outlined by the district court which we have discussed above and achievement of the goal of attaining unitary status are difficult and complex. We agree with the district court that this is attainable, but it will require skillful and complex administrative and management effort. We leave to the discretion of the district court how best to exercise its oversight. Time is short, and the district court must do what is necessary to assure that the goals are achieved.
We affirm in all respects the district court’s statements concerning the transition leading to return of the district to local control. The goal is to eliminate, to the extent practicable, the vestiges of discrimination in this school district, and the district court should spare no effort in ensuring that this goal is reached.
Many aspects of the agreement and its effects are troublesome, and we remain deeply concerned about the future of the KCMSD. The issue of whether the district court erred in approving the agreement is a close one. Nevertheless, we cannot say

that the district court clearly erred in its factual findings regarding the agreement, nor that it abused its discretion in approving the agreement and, in effect, modifying the earlier remedy ordered by the court.
We thus affirm the judgment of the district court.

All Citations 122 F.3d 588, 120 Ed. Law Rep. 930

Footnotes

1

The Honorable Russell G. Clark, Senior Judge, United States District Court for the Western District of Missouri.

2

The Jenkins Class moved for a stay of the court’s order. We took the motion for stay with the case until we had

heard oral argument. Because we have now decided the case, the motion for stay is moot.

3

In Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 1692–93, 20 L.Ed.2d 716 (1968), the

Supreme Court stated that school districts were obliged to desegregate all aspects of their school systems,

including: student assignments, faculty and staff assignments, transportation, facilities, and extra-curricular

activities. Disparities in these ﬁve aspects of a school’s operations are the most important indicia of a segregated

school system. See Jenkins III, 515 U.S. at 88, 115 S.Ct. at 2049.

4

The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.

5

In Kalamazoo Board of Education, 640 F.2d at 808–09, another reason for putting the burden of proof on plaintiffs

was that they were seeking additional relief, whereas the original decree stated that any party seeking to modify

the decree would bear the burden of “justifying changes.”

6

The passage of time is often overstated by reference to the time of the de jure violations or the duration of this

suit. It is frequently overlooked that the obligation of the KCMSD and the State to eliminate the vestiges of the de

jure dual school system was not seriously undertaken until after the afﬁrmance by this court in Jenkins v.

Missouri, 855 F.2d 1295 (8th Cir.1988), cert. denied in part, 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403

(1989), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), of the intradistrict

remedies crafted by the district court. Thus, it was not until the late 1980’s that implementation of the remedies

was commenced, and it was in the early 1990’s that the effort was well under way.

7

The State brieﬂy suggests that Dr. Trent’s testimony did not “rise to the level of evidence” contemplated by

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The State

does not cite any reference to the record at which it objected to the evidence under Daubert. We therefore

understand the State’s argument to be a substantive argument about sufﬁciency of the evidence, rather than an

evidentiary objection.

8

The expert testimony was responsive to the Supreme Court’s direction to quantify the achievement gap. It was

the only testimony to address this issue, and came from all parties.

9

We must ﬁrst pause to say that the State’s funding-only role has come about through the State’s conscious policy

choices to so limit its involvement. We do not believe that either state or federal law contemplated such a limited

role for the State.

10

During oral argument, the parties identiﬁed a number of State programs that are being developed that will be

available to the KCMSD, but these programs have not yet had a signiﬁcant impact on the district.

11

We have considered, and now reject, the Jenkins Class’s other arguments in opposition to the agreement. The

Class analogizes the agreement to a contract and contends that it cannot be bound by a contract to which it is not

a party. Regardless of the agreement, the district court’s order is not akin to a contract. The Class presented its

objections to the district court, those objections were overruled, and the Class is now bound by that order to the

same extent as any other court order in this case.

The Class also argues that the district court erred in approving the agreement because: (1) the court was not

presented with a justiciable controversy; (2) the order is invalid as an advisory opinion; and (3) the agreement

9

We must ﬁrst pause to say that the State’s funding-only role has come about through the State’s conscious policy

choices to so limit its involvement. We do not believe that either state or federal law contemplated such a limited

role for the State.

10

During oral argument, the parties identiﬁed a number of State programs that are being developed that will be

available to the KCMSD, but these programs have not yet had a signiﬁcant impact on the district.

11

We have considered, and now reject, the Jenkins Class’s other arguments in opposition to the agreement. The

Class analogizes the agreement to a contract and contends that it cannot be bound by a contract to which it is not

a party. Regardless of the agreement, the district court’s order is not akin to a contract. The Class presented its

objections to the district court, those objections were overruled, and the Class is now bound by that order to the

same extent as any other court order in this case.

The Class also argues that the district court erred in approving the agreement because: (1) the court was not

presented with a justiciable controversy; (2) the order is invalid as an advisory opinion; and (3) the agreement

cannot be viewed as an alternative remedy plan because the State did not seek declaratory relief. These

arguments must fail based on our holding that the court’s approval of the agreement was an exercise of its

continuing equitable authority to devise and implement a remedy in this case.

 
 121 F.3d 712 Unpublished Disposition NOTICE: THIS IS AN UNPUBLISHED OPINION. (The Court’s decision is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. Use FI CTA8 Rule 28A, FI CTA8 IOP and FI CTA8 APP. I for rules regarding the citation of unpublished
opinions.) United States Court of Appeals, Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi Jenkins; Nicholas Paul Winchester-Rabelier, by his next friend, Paula Winchester; Margo Vaughn-Bey, by her next friend, Franklin Vaughn-Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd-Peter; Leland Guess, by his next friend, Sharon Guess, Western District of Missouri. Plaintiffs-
Appellees v.
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; Thomas R. Davis, Member of the Missouri State Board of Education; Robert E. Bartman,
Commissioner of Education of the State of Missouri; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member of the Missouri State Board of Education; Betty Preston, Member of
the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; William Kahn, Member of
the Missouri State Board of Education, Defendants-Appellants School District of Kansas City; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Henry D. Williams, Superintendent; John W. Still, Member of the Board of Directors, Defendants.
No. 97-2626. |
Aug. 14, 1997.
Appeal from the United States District Court for the Western District of Missouri.
Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
PER CURIAM.
*1 The State of Missouri appeals from an order of the district court granting fees and expenses to the Jenkins Class, including expert fees, for services rendered in the first three quarters of Year XII of the remedy. Those services included litigation of the State’s motions for unitary status and for approval of the State’s agreement with the Kansas City, Missouri School District. District Court Order of March 27, 1997. In addition, the district court entered a stay of execution pending appeal. District Court Order of May 14, 1997. We affirm the order granting fees and expenses to the Jenkins Class.1
The district court held that the KCMSD was not yet unitary, but nevertheless approved the agreement between the State and the KCMSD. Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.), aff’d, 1997 WL 456549, No. 97-1968, 97-2078 (8th Cir. Aug. 12, 1997). The State argues that the fee award should be reduced because the Jenkins Class failed to prevent dismissal of the State from the litigation. The district court found that the issues were interrelated, Order of March 27, 1997, slip op. at 7, and awarded fees and expenses in the amounts of $17,034.41 for the first quarter of Year XII, id. at 6, $146,599.05 for the second quarter, id. at 8, and $313,943.85 for the third quarter, id. at 12. The district court found that the Jenkins Class had

won “substantial relief” in the hearing and that the results could not be characterized as “only limited success.” Id. at 7. The district court found that the Jenkins Class was in a defensive posture on these inter-related claims, slip op. at 6, which weighed in favor of awarding them fees under Association for Retarded Citizens v. Schafer, 83 F.3d 1008, 1011 (8th Cir.), cert. denied, 117 S.Ct. 482 (1996). The district court’s order on the motions for unitariness and approval of the agreement demonstrates the close inter-relationship between the issues pertaining to unitary status and approval of the settlement. Indeed, the district court’s findings that the achievement gap had not been remedied, but was to be remedied within three years, and that the Green2 factors, with the exception of extracurricular activities, would be unitary within two or three years, were essentially the factual findings undergirding the district court’s approval of the settlement between the State and the KCMSD. The Jenkins Class prevailed on the unitariness issue, and we affirmed the district court’s judgment. We cannot conclude that the district court erred in finding the Jenkins Class had earned “substantial relief” and was entitled to a fully compensatory fee.
The State argues that the district court erred in allowing the shifting of expert witness fees, contrary to West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991). The district court’s order recited that plaintiffs had not claimed $17,359.10 in expert expenses that clearly related to litigation. Order of March 27, 1997, slip op. at 9-10. The State specifically objected to a fee of $982.50 for Robert Thaler’s work in computational assistance for preparing an analysis of the vestiges of segregation for Dr. Robert Crain, and $11,275.00 for Dr. Crain and his associates for work that included scale construction and preparation of charts. With respect to Thaler’s services, the district court stated that the work was completed in December and included helping Dr. Crain in analyzing the vestiges of prior discrimination. Slip op. at 10. As one of the Jenkins Class’s duties was assessing the status of the KCMSD to monitor racial balance and racial attitudes, the court found that this expense was a reasonable cost for those monitoring activities. Id. at 11. With respect to the request for the work done by Dr. Robert Crain, the court reduced the request by $1,000 for preparation of charts, which was clearly litigation-related activity, and found that the other categories of expense, $10,275, were reasonable monitoring activities. The court allowed a payment of $1,380 for a video production that the Jenkins Class counsel used at the unitariness hearing. It found that the video showed a teaching method that the Jenkins Class had mentioned throughout the proceedings, and the video was useful because it gave form and substance to an abstract teaching method. Id. at 11-12.
*2 The State argues that the expert witness fees of Dr. Crain are not recoverable because 42 U.S.C. § 1988(b) (1994), as interpreted in Casey, gives no authority to shift expert fees for either testimonial or non-testimonial work. We are persuaded, however, that the district court did not err in concluding that Dr. Crain’s work was monitoring activity, which the Jenkins Class has the responsibility to conduct and for which it has the right to be compensated. See Jenkins v. Missouri, 967 F.2d 1248, 1251 (8th Cir.1992) (“Monitoring implementation of the remedy is a crucial part of the plaintiffs’ function in these cases ...”).
The State also appeals the award of 13.5 hours for legal research on the Equal Educational Opportunities Act. These fees total $877.50. The district court found that attorneys often research different courses to follow in litigation efforts, and the hours were not excessive for a path that “did not lead where plaintiffs thought it might.” Order of March 27, 1997, slip op. at 9. We reject the State’s argument.
We affirm the fees awarded for the first, second and third quarters of Year XII in the amounts which we have catalogued above.

All Citations 121 F.3d 712 (Table), 1997 WL 464173, 122 Ed. Law Rep. 571

Footnotes

1

The Jenkins Class has moved to vacate the stay of execution. In light of our decision, the motion is moot.

2

Green v. County School Bd., 391 U.S. 430 (1968).

 
 Opinion

124 F.3d 1310 United States Court of Appeals,
Eighth Circuit
Chinyere JENKINS, etc., et al., Appellants, v.
STATE OF MISSOURI, et al., Appellees.
No. 96-3870. |
Sept. 10, 1997.

Prior report: 115 F.3d 554.
Appellees’ suggestion for rehearing en banc has been considered by the court and is granted as to case No. 96-3870. The court’s opinion and judgment entered May 22, 1997, are vacated.
The case is set for oral argument at 2:00 p.m. on Wednesday, October 22, 1997, in the United States Courthouse in St. Paul, Minnesota.

All Citations 124 F.3d 1310 (Mem)

 
 133 F.3d 559 United States Court of Appeals,
Eighth Circuit. Chinyere JENKINS, etc., et al., Appellees,
v. STATE OF MISSOURI, et al., Appellants.
No. 97–2626. |
Oct. 10, 1997.
Appeal from the United States District Court for the Western District of Missouri.
AMENDED ORDER Appellants’ suggestion for rehearing by the court en banc is granted. The grant of rehearing en banc is limited to the issue presented in appellants’ suggestion for rehearing regarding the award of expert witness fees to Dr. Robert Crain. The remainder of the court’s August 14, 1997 opinion and judgment are not affected by this order granting rehearing en banc.
*560 The case will be argued to the en banc court during the January session in St. Louis with the specific date and time to be fixed by later order of this court.
All Citations 133 F.3d 559 (Mem), 123 Ed. Law Rep. 475

 
 127 F.3d 709 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs–Appellants, American Federation of Teachers, Local 691, Intervenor below, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants–Appellees, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants.
No. 96–3870. |
Submitted Oct. 14, 1997. |
Decided Oct. 14, 1997.
Synopsis In school desegregation suit, the United States District Court for the Western District of Missouri, Russell G. Clark, J., entered order denying plaintiffs postjudgment attorney fees. Plaintiffs appealed. On rehearing en banc, the Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) Court would review issue of plaintiffs’ prevailing party status de novo; (2) Supreme Court’s reversal of district court determinations in favor of plaintiffs on issues of teacher salary increases and funding of quality education programs did not change plaintiffs’ prevailing party status in underlying litigation; and (3) plaintiffs were entitled to award of one-half of postjudgment attorney fees requested for contesting state’s petition for certiorari to Supreme Court.
Reversed and fees awarded.
Opinion, 115 F.3d 554, vacated.
Attorneys and Law Firms
*712 Arthur A. Benson II, Kansas City, MO, argued (John E. Kirklin and Jamie K. Lansford, on the brief), for Plaintiffs– Appellants.
Bart A. Matanic, Jefferson City, MO (John R. Munich, Michael J. Fields and Jeremiah W. Nixon, on the brief), for Defendants–Appellees.
Before RICHARD S. ARNOLD, Chief Judge, HEANEY, McMILLIAN, GIBSON, FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HENSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, En Banc.

ORDER
On its own motion, the Court en banc hereby vacates the order previously entered granting in part the State of Missouri’s suggestion for rehearing en banc. The en banc setting of an oral argument for Wednesday, October 22, 1997, is also vacated.
This action is taken by the Court en banc in anticipation of the filing of a revised panel opinion, which opinion will be filed immediately after the entry of this order. The case is hereby remanded to the panel for that purpose.
Either side is free to file a petition for rehearing, with or without suggestion for rehearing en banc, directed to the revised panel opinion.
Judge Bowman, Judge Wollman, Judge Beam, Judge Loken, and Judge Morris Sheppard Arnold dissent.
All members of the Court reserve the right to file opinions explaining their votes in this matter.
Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
The plaintiffs in the Kansas City school desegregation case appeal the district court’s order denying them an award of attorneys’ fees for their participation in the proceedings in the Supreme Court that culminated in Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ). The district court denied fees on the theory that, since the Supreme Court decided Jenkins III against the Jenkins class, the Jenkins class could not be considered the “prevailing party” within the meaning of the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (West Supp.1997).1 We reverse and award fees.
*713 The Jenkins class filed its application for attorneys’ fees for the work in defending the State’s certiorari petition, which resulted in the Supreme Court’s decision in Jenkins III. The State’s response was a legal one, that the State fully prevailed in the Supreme Court, reversing the decisions of this court over the opposition of the Jenkins class that the interdistrict goals of suburban comparability and desegregative attractiveness were beyond the scope of the intradistrict case, that the compensatory remedial program should be limited to victims of segregation, and that student achievement was not to be considered in the unitary status analysis. It asserts that it received all that it asked for, over the opposition of the Jenkins class. Therefore, the Jenkins class was not a prevailing party at the Supreme Court stage in the litigation, and could not be compensated for its fees. The State concluded by arguing that there was no exception to this rule in desegregation cases.
The district court found that plaintiffs had not achieved partial success in the certiorari proceedings. The district court stated: “Plaintiffs cannot be said to be ‘prevailing parties’ in the action before the Supreme Court.” It rejected the Jenkins class’s argument that even if it did not achieve success on appeal, it was entitled to retain the status of prevailing party from the underlying litigation.
I.
[1] The State argues generally that the standard of review in claims for attorneys’ fees is abuse of discretion, citing Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 884 (8th Cir.1995). In Friends, an Equal Access to Justice Act case, we stated that broad rule, id. at 884, but continued by stating that in applying the standard, we review the district court’s conclusions of law de novo and reject findings of fact only if they are clearly erroneous. Id. at 885. In Friends, there was no issue as to whether the plaintiffs were prevailing parties, but the question in issue under the EAJA was whether the government’s position was substantially justified. The State also cites Johnson v. Bismarck Public School District, 949 F.2d

1000 (8th Cir.1991), in which we stated the rule that attorneys’ fee award decisions are reviewed on an abuse of discretion standard. Id. at 1003. It is evident, however, that Johnson passed beyond the prevailing party issue and based its decision on the fee reduction on the ground of limited success, an area particularly appropriate for discretionary determination by the district court.
We have, however, on numerous occasions clearly stated that we review de novo the legal question of whether a litigant is a prevailing party. See Pottgen v. Missouri State High Sch. Activities Ass’n, 103 F.3d 720, 723 (8th Cir.1997); St. Louis Fire Fighters Ass’n v. St. Louis, 96 F.3d 323, 330 (8th Cir.1996). Accord Church of Scientology v. City of Clearwater, 2 F.3d 1509, 1512–13 (11th Cir.1993) (“We review the factual findings underlying a district court’s determination regarding ‘prevailing party’ status for clear error.... Whether the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal question reviewed de novo.”), cert. denied, 513 U.S. 807, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994). In Association for Retarded Citizens v. Schafer, 83 F.3d 1008 (8th Cir.), cert. denied, 519 U.S. 993, 117 S.Ct. 482, 136 L.Ed.2d 376 (1996), we stated that we reviewed fee awards for an abuse of discretion, “or an error in implementing the governing legal standards.” Id. at 1010 (quotation omitted). The Supreme Court has defined and applied the test for prevailing party status in unmistakably legal terms: “[A] plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992). Thus, while abuse of discretion governs in reviewing fee awards, the question of prevailing party status, a *714 statutory term, presents a legal issue for decision, which we review de novo.
The district court’s decision is based solely on the State’s legal argument that the Jenkins class was not a prevailing party. It did not go beyond this threshold issue to areas requiring the exercise of discretion. The State made no argument that any fees awarded should be reduced because of limited success. The State’s argument was an all-or-nothing one, that the Jenkins class was not a prevailing party and not entitled to recover any fees at all. Thus, we analyze the prevailing party issue de novo.
II.
The Jenkins class argues that its status as “prevailing party” was established when it was determined that the State had violated the Constitution and was obliged to remedy the unconstitutional conditions it had created. Thereafter, the class representatives were obliged to defend the remedy and entitled to fees for doing so. They argue that the purpose of section 1988 requires that they be compensated for efforts necessary to defend the remedy, without constant reevaluation of their entitlement to fees, depending on whether they win every controversy that arises.
[2] [3] It is generally true that status as a prevailing party is determined on the outcome of the case as a whole, rather than by piecemeal assessment of how a party fares on each motion along the way. “Any given civil action can have numerous phases. While the parties’ postures on individual matters may be more or less justified, the [Equal Access to Justice Act]—like other fee-shifting statutes—favors treating a case as an inclusive whole, rather than as atomized line items.” Commissioner, INS v. Jean, 496 U.S. 154, 161–62, 110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990) (citing section 1988 case, among others). This is true of matters decided after judgment on the merits, as well as those decided before. See id.
[4] [5] Naturally, reversal on appeal of the merits can change a prevailing party into a non-prevailing party, and require that earlier fee awards be vacated. See Pottgen, 103 F.3d at 724; Pedigo v. P.A.M. Transp., Inc., 98 F.3d 396, 398 (8th Cir.1996). Jenkins III did not affect in any way the holding that the State had committed constitutional violations or that it was obliged to remedy those violations. In fact, Jenkins III only reversed orders providing quality education programs for the year 1992– 93, 515 U.S. at 80, 115 S.Ct. at 2045, and salary increases ordered in 1992 and 1993, id.. These orders represent a small fraction of the relief that has been ordered in this case. The State can hardly dispute the substantiality of the remedy ordered by the district court and sustained in numerous appeals, since the State described the remedy as “massive,” “unprecedented,” and “astounding” in its brief before the Supreme Court.
Even though the actual holding of Jenkins III is limited to reversing the orders before it, the State argues that Jenkins III has ramifications that must affect the case as a whole, either resulting in a finding of unitariness or at least circumscribing the scope of the entire remedy.2 Regardless of the effect of Jenkins III on the future progress of this case, it does not retroactively take away the Jenkins class’s status as prevailing party in the underlying case. In Balark v. City of Chicago, 81 F.3d 658 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996), the Seventh Circuit rejected an argument that plaintiffs who enjoyed a consent decree for ten years were deprived of prevailing party status when their decree was

dissolved under Fed. Rule Civ. P. 60(b). Balark queried:
How can one say that the plaintiffs did not prevail when their decree governed the parties’ behavior for ten years, and the termination is prospective only? The only possible perspective from which the entitlement to fees can be considered is at the *715 time the final judgment determining who prevails is entered (taking into account any appeals ...). Id. at 665. Like the Balark plaintiffs, the Jenkins class has enjoyed the benefits of prevailing in this litigation for more than a decade. Jenkins III did not void the many remedial orders issued in this case that have never been reversed “during the process of a direct appeal.” Balark, 81 F.3d at 663. Moreover, though the State certainly obtained significant changes in the theories that would govern this action, it exaggerates when it contends that the effect of Jenkins III was to cut off relief to the Jenkins class peremptorily. The Supreme Court remanded for purposes of considering the partial unitary status issue under the principles of Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). See Jenkins III, 515 U.S. at 101–03, 115 S.Ct. at 2055–56. The Supreme Court disapproved of the district court’s use of desegregative attractiveness and suburban comparability as goals in this intradistrict case. Id. at 98–99, 115 S.Ct. at 2054. Justice O’Connor, in casting the fifth and deciding vote, observed that the Court properly refrained from addressing “the propriety of all the remedies that the District Court has ordered, revised, and extended in the 18–year history of this case.” Id. at 113, 115 S.Ct. at 2061. While these remedies may be improper to the extent that they serve the goals of desegregative attractiveness and suburban comparability, she added: “[C]onversely, the District Court may be able to justify some remedies without reliance on these goals.” Id. The Supreme Court also cautioned against use of achievement disparities in determining whether vestiges of segregation remained without attention to the proportion of such disparities caused by the constitutional violation. Id. at 101, 115 S.Ct. at 2055.
After remand, the Jenkins class continued to litigate various aspects of the remedial orders. Some three of these orders were before us in Jenkins v. Missouri, 103 F.3d 731 (8th Cir.1997) (Jenkins XIII ). We affirmed the remedy plan and budget for the 1996–97 school year, but only three limited issues were before us.3 We discussed in some detail the impact of Jenkins III on the litigation as it remained before the district court. Id. at 736–38. Of greatest significance was the stipulation in which the State agreed to, and the district court approved, a State payment of $74.2 million to fund the budget for that year.4 Id. at 737– 38.
Nearly ten months after Jenkins III, on April 26, 1996, the State filed a motion for declaration of unitary status. Shortly thereafter, the State and the KCMSD entered into an agreement in which the State’s responsibility would be phased out over a three-year period in return for a payment of $314 million dollars (later increased to $320 million). The district court denied the State’s motion for unitary status with the exception of the Green5 factor of extracurricular activities, and approved the terms of the settlement agreement. The State appealed the district court’s denial of unitary status, and the Jenkins class appealed the district court’s approval of the settlement. We affirmed the orders of the district court in Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ). On the all-encompassing issue of unitariness, the Jenkins class undoubtedly prevailed. Had the State won all in the *716 Supreme Court, as it contends, there would have been no legal justification for any further payments. Yet, in the months following Jenkins III, the State undertook new obligations to pay first $74.2 million and then $320 million to satisfy its liability to KCMSD. The State did so only because of its continuing exposure to fund the desegregation remedies, which was confirmed by the district court’s denial of its unitary motion status, which we in turn affirmed. This eloquently points to the Jenkins class’s continuing status as a prevailing party in this litigation after Jenkins III. The award of $320 million would have made the Jenkins class a prevailing plaintiff, even if it had obtained no other relief in the case. See Farrar, 506 U.S. at 111, 113 S.Ct. at 572–73. Therefore, we conclude as a matter of law that the Jenkins class is still the prevailing party in this litigation.
III.
Jean stated that status as the “prevailing party” is only the beginning of the fees inquiry, since the “prevailing party” requirement is “a generous formulation that brings the plaintiff only across the statutory threshold.” Jean, 496 U.S. at 160– 61, 110 S.Ct. at 2320 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)); see Joseph A. v. New Mexico Dep’t of Human Serv., 28 F.3d 1056, 1060 (10th Cir.1994). Once over that threshold, important questions still remain about whether fees should be awarded for matters on which the plaintiff lost. See Foster v. Board of Sch. Comm’rs, 810 F.2d 1021, 1024 (11th Cir.) (per curiam), cert. denied, 484 U.S. 829, 108 S.Ct. 99, 98 L.Ed.2d 60 (1987).

[6] We have observed that a district court’s discretion to deny attorneys’ fees to a prevailing plaintiff is narrow. Prevailing plaintiffs should ordinarily recover fees unless special circumstances would make such an award unjust. See New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68, 100 S.Ct. 2024, 2033, 64 L.Ed.2d 723 (1980); St. Louis Fire Fighters Ass’n, 96 F.3d at 331; Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. No. 1, 17 F.3d 260, 262–63 (8th Cir.1994); Hatfield v. Hayes, 877 F.2d 717, 719 (8th Cir.1989).
[7] [8] [9] Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), gives the paradigm for determining whether fees are compensable under section 1988 in cases in which the plaintiff has prevailed on some, but not all, of his claims. If any issues on which the plaintiff lost are unrelated to those on which he won, the unrelated issues must be treated as if they were separate cases and no fees can be awarded. See id. at 434–35, 103 S.Ct. at 1939–40. If, however, the claims on which the plaintiff lost are related to those on which he won, the court may award a reasonable fee. See id. The most important factor in determining what is a reasonable fee is the magnitude of the plaintiff’s success in the case as a whole. See id. at 436, 103 S.Ct. at 1941; Farrar v. Hobby, 506 U.S. at 114, 113 S.Ct. at 574–75. If the plaintiff has won excellent results, he is entitled to a fully compensatory fee award, which will normally include time spent on related matters on which he did not win. See Hensley, 461 U.S. at 435, 103 S.Ct. at 1940. If the plaintiff’s success is limited, he is entitled only to an amount of fees that is reasonable in relation to the results obtained. See id. at 440, 103 S.Ct. at 1943. Finally, of course, any fees must be “reasonably expended,” so that services that were redundant, inefficient, or simply unnecessary are not compensable. See id. at 434, 103 S.Ct. at 1939–40.
Hensley itself did not address the treatment of fees incurred after judgment on the merits, but we nevertheless apply its principles in such cases. See Schafer, 83 F.3d at 1010–12. However, it is more complicated to assess the relations of each part of the litigation to the whole in cases that proceed over an indefinite time than in a simple action that comes to judgment and ends. Reimbursement for post-judgment litigation fees can be as important as reimbursement for pre-judgment fees in accomplishing the purpose of section 1988. In suits for long-term injunctive relief, such as institutional reform cases and school desegregation cases, the remedy can unfold in phases over many years.
[10] A plaintiff’s attorney may engage in several kinds of post-judgment activity. Some types of post-judgment activities are readily seen to be necessary adjuncts to the initial litigation, whereas other types of activities *717 are more like a new, separate lawsuit and require a fee determination independent of the underlying case. Thus, monitoring the defendant’s compliance with court orders and enforcing the remedy are generally compensable as part of the underlying case. See Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 559, 106 S.Ct. 3088, 3095, 92 L.Ed.2d 439 (1986) (various monitoring and enforcement activities, including work before administrative agencies that could have adversely affected rights under consent decree); Schafer, 83 F.3d at 1010–11; Duran v. Carruthers, 885 F.2d 1492 (10th Cir.1989) (monitoring).
We have also stressed the importance of allowing the plaintiff in such cases fees for successfully defending the remedy against attacks. In Jenkins v. Missouri, 967 F.2d 1248 (8th Cir.1992)(Jenkins Fees IV ), we said:
[G]iven the special nature of desegregation cases, withholding from the plaintiffs the means for paying their attorneys could be devastating to the national policy of enforcing civil rights laws through the use of private attorneys general. School desegregation cases can continue for years and affect nearly everyone in the community in one way or another. Various interventions and collateral attacks are not only predictable, but inevitable in litigation affecting so many people in so many different capacities. Furthermore, a school desegregation case differs from much other litigation in that the main action does not result in a monetary recovery that might enable plaintiffs to finance a defense against collateral attacks on their judgments. The only monetary award received by the plaintiffs in a desegregation case is simply payment of their attorneys’ fees, and it is inequitable to require the attorney for the class to defend against collateral attacks on the award. Such service is just as much a part of the representation of the plaintiff class as obtaining relief in the first instance. To deny plaintiffs fees in a desegregation case would be to deny them the means to respond to attacks on the remedy.
Id. at 1251.
[11] Where, however, the plaintiff asks for remedial measures that are ultimately denied, he cannot be said to be “defending” the remedy, because the thing he sought has been declared not to be part of the remedy. Assuming the plaintiff can still be

characterized as the prevailing party in the case as a whole, the question arises whether he is entitled to fees despite his failure on the particular matter, and if so, whether the fees should be reduced to reflect his lack of success. Under Hensley the first inquiry is whether the issues in the post-judgment litigation are inextricably intertwined with those on which the plaintiff prevailed in the underlying suit or whether they are distinct. The Fourth Circuit has applied this distinction to deny fees in civil rights cases where the parties entered a consent decree and further litigation concerned contractual issues under the consent decree, not the underlying civil rights claim. See Willie M. v. Hunt, 732 F.2d 383, 386 (4th Cir.1984). In Arvinger v. Mayor and City Council of Baltimore, 31 F.3d 196 (4th Cir.1994), the Fourth Circuit summarized its cases on this issue:
Thus, when subsequent litigation seeks to enforce or interpret a settlement agreement or consent decree, involving facts and principles different from those considered in the underlying litigation, the second is not considered “inextricably intermingled” with the first. On the other hand, a subsequent litigation initiated against the successful party to modify or “replay” the issues of the first litigation may be so intermingled. Plyler [v. Evatt, 902 F.2d 273 (4th Cir.1990) ] applies to carry forward prevailing party status only in this latter circumstance, and only that when the plaintiffs are forced to litigate to preserve the relief originally obtained.
Id. at 202. We applied this distinction in Schafer, where we held that the plaintiffs’ post-judgment activities were so much greater than would have been necessary for monitoring the decree that they amounted to the assertion of distinct, new claims for relief, which could not be compensated on the strength of the plaintiffs’ prevailing party status in the underlying suit. 83 F. 3d at 1011.
*718 [12] If, on the other hand, the plaintiff’s claim in the post-judgment litigation is inextricably intertwined with the underlying claims, then we must determine what fee award, if any, would be reasonable. Assessing the reasonableness of a fee requires us to consider the plaintiff’s overall success; the necessity and usefulness of the plaintiff’s activity in the particular matter for which fees are requested; and the efficiency with which the plaintiff’s attorneys conducted that activity.
[13] The most critical factor in the fixing of a reasonable fee is the overall success obtained. See Farrar, 506 U.S. at 114, 113 S.Ct. at 574–75. We must therefore determine the relationship the post-judgment litigation bears to the case as a whole, rather than assessing the plaintiff’s success on the particular question in isolation. See Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir. 1990). The outcome of disputes about the scope of the remedy can greatly reduce the magnitude of relief obtained in the case as a whole; changes in the scope of the remedy may not change a prevailing party into a non-prevailing party, but they certainly can change the overall significance of the plaintiff’s victory.
[14] Even if the issue on which the plaintiff lost is minor in the context of a substantial victory, to be compensable, postjudgment work must be “useful and of a type ordinarily necessary,” Delaware Valley, 478 U.S. at 561, 106 S.Ct. at 3096 (quotation marks omitted), to secure the result obtained in the underlying litigation. See Schafer, 83 F.3d at 1012. The courts have not interpreted this requirement tautologically, to mean that any unsuccessful efforts were perforce unnecessary, but rather have asked whether the plaintiff’s attorneys would have been expected or obliged to take the position they took. See Plyler, 902 F.2d at 281 (awarding fees to counsel who were under clear obligation to defend remedy, though they lost on issue in question). For instance, in People Who Care v. Rockford Board of Education, 90 F.3d 1307, 1314 (7th Cir.1996), the Seventh Circuit reversed the district court’s denial of fees for a certain appeal. The district court had refused to award fees because the appeal had been dismissed. The Seventh Circuit stated:
A court’s focus should not be limited to the success/failure of each of the attorney’s actions. Rather, it should be upon whether those actions were reasonable. In other words, the court should not look to whether F & H “won” the 1990 appeal, but should instead look to whether the fees F & H requests for that appeal were reasonably incurred.
Id. The Fourth Circuit stated that the court should consider whether the position the fee applicant unsuccessfully advocated was “essential to the preservation of the integrity of the consent decree as a whole.” Plyler, 902 F.2d at 281.
Nevertheless, success or failure on the particular matter in question (as opposed to overall success) is still a factor in deciding the reasonableness of the attorney’s efforts. See Schafer, 83 F.3d at 1012; Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.1988) (“Since the reasonableness of a fee is a function in part of the success achieved by the expenditure, lack of success ... is certainly material in deciding how large the reimbursement should be.”); Stewart v. Gates, 987 F.2d 1450, 1454 (9th Cir. 1993) (plaintiffs not entitled to fee award for unsuccessful defense of section 1988 fee award on appeal).

Making success on the particular matter relevant but not determinative to the reasonableness of the fee fits well with our observations in Jenkins Fees IV, 967 F.2d at 1251, about the importance of providing post-judgment fees to assure enforcement of civil rights awards. If the plaintiffs’ attorneys in extended civil rights cases must succeed on every matter they litigate, they are likely to be less vigorous in their representation of the class. The Ninth Circuit rejected an argument that section 1988 only permits fees for phases of the litigation in which the plaintiff won:
Lawsuits usually involve many reasonably disputed issues and a lawyer who takes on only those battles he is certain of winning is probably not serving his client vigorously enough; losing is part of winning. The County would have us scalpel out attorney’s fees for every set-back, no matter how temporary, regardless of its relationship to the ultimate disposition of the case. This makes little sense.
*719 Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir.1991) (Kozinski, J.). Awarding fees that were reasonably incurred, though perhaps they did not lead to a success in court, is more likely to result in responsible management of the remedial phase of desegregation suits.
[15] Another factor that has been considered in deciding whether post-judgment fees were necessary and useful is whether the attorneys’ activity was defensive, seeking to preserve relief obtained earlier, or offensive, seeking to augment what had already been approved. In Ustrak v. Fairman, the Seventh Circuit distinguished between a case in which the fee applicant unsuccessfully defends an appeal of relief he has won below and a case in which the fee applicant unsuccessfully appeals, seeking to expand his victory. 851 F.2d at 990. The Seventh Circuit concluded that it would be more likely to award fees in the former case than in the latter. We have referred to this case with approval in Schafer, 83 F.3d at 1012, and denied a fee where the prevailing party was seeking a greater victory, rather than defending the remedy.
IV.
[16] Applying Hensley to this case therefore requires us to decide first if the issues litigated were related to those on which the class prevailed. Two kinds of orders were at issue in Jenkins III, the orders instituting salary increases, see 515 U.S. at 80, 115 S.Ct. at 2045, and the order requiring the State to continue funding quality education programs despite the State’s contention that the KCMSD had achieved partial unitary status with respect to those programs. See id. Both matters had been decided in the class’s favor in the district court and in this court, and the class was defending the orders against the State’s petition for certiorari.
The State’s certiorari petition raised issues that were integrally related to the underlying case. The Supreme Court summed up the nature of the State’s arguments: “In short, the State has challenged the scope of the District Court’s remedial authority.” Id. at 86, 115 S.Ct. at 2048. Although we have pointed out that the actual holding of Jenkins III only affected a very limited portion of the relief that has been ordered in this case since its inception, the scope of the arguments in Jenkins III was not so limited. The State mounted a challenge to remedial theories that were fundamental to the district court’s remedial approach. We therefore conclude that the fees in question were closely related to the theories on which the Jenkins Class prevailed and that the Jenkins Class should therefore be awarded a reasonable fee.
In this circuit, we ourselves have awarded fees for appellate work, without the necessity of remanding for the district court to award the fees in the first instance. See Reel v. Arkansas Dep’t of Correction, 672 F.2d 693, 699 (8th Cir.1982); Campbell v. Cauthron, 623 F.2d 503, 509 (8th Cir.1980); Finney v. Hutto, 548 F.2d 740, 743 (8th Cir.1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).6
Following the issuance of the panel opinion in this case, the Jenkins Class filed a fee application with this court and the State filed objections. We sustain a number of the specific objections and reduce the amount requested accordingly.7
[17] As we have observed, Hensley teaches that limited success on the merits is a factor in considering the reasonableness of the fee in relation to the results obtained. See 461 U.S. at 440, 103 S.Ct. at 1943. We have discussed in detail above the holding of the Supreme Court, and the extent to which it affected the position of each of the parties. *720 Certainly, the State prevailed on the several discrete issues, as we

have said. The overall status of the Jenkins class as a prevailing party has not been altered. The class survived to litigate further and to prevail further, as we have outlined above. In deciding what allowance should be made to take into effect the limited success in the Supreme Court, we think an award to counsel for the Jenkins class in the amount of fifty percent requested is appropriate.
Accordingly, we award fees in the following amounts:
Work in the Supreme Court: Arthur Benson & Associates $76,154; James S. Liebman $11,150; Theodore M. Shaw $24,587.
For expenses: Arthur Benson & Associates $8,847.53; Mr. Shaw $1,674.88.
For district court work on the Supreme Court fees: Mr. Kirklin $8,712. For work on the appeal in this court on fees, Mr. Kirklin $7,711.50, Arthur Benson & Associates $3,744.25. Expenses: Arthur Benson & Associates $495.92.

All Citations 127 F.3d 709, 121 Ed. Law Rep. 914

Footnotes

1

42 U.S.C.A. § 1988(b) provides:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law 92–318 [20 U.S.C.A. § 1681 et seq.], the Religious Freedom Restoration Act of

1993 [42 U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000d et seq.], or

section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee as part of the costs .... (footnote omitted).

2

After brieﬁng in this appeal was complete, the district court determined that the KCMSD had attained unitariness

in only one of the ﬁve aspects enumerated in Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689,

1692–93, 20 L.Ed.2d 716 (1968). Jenkins v. Missouri, 959 F.Supp. 1151, 1165–68 (W.D.Mo.1997). We afﬁrmed

the district court’s order. Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ).

3

The issues were reinstatement of the extended-day program, speciﬁc budget cuts for seven schools, and

permanent substitutes in the foreign language magnets.

4

The parties entered into this stipulation at the commencement of the hearing June 6, 1996, to consider the budget

for the years 1997–2001. The parties also agreed that no evidence would be presented on whether vestiges of

discrimination remained in the KCMSD. The settlement agreement between KCMSD and the State to discharge

the State’s remaining liability for a payment of $320 million recited that such payment for the 1996–97 year would

be credited against the $320 million settlement ﬁgure. There was a hearing on the settlement in January 1997,

and the order of the district court approving the settlement was entered March 25, 1997. Before ﬁnal approval of

the settlement and afﬁrmance of the district court order by this court on August 12, 1997, the State had agreed to

expend $74.2 million to fund the 1996–97 budget of KCMSD with only the protection of the credit called for in the

settlement agreement, which was subject to this later approval by the court.

5

Green v. County Sch. Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

6

The issue of whether the Court of Appeals may award fees in the ﬁrst instance, though settled in this circuit, is the

subject of a split of authority elsewhere. Compare Yaron v. Township of Northampton, 963 F.2d 33, 36 (3d Cir.

1992), and Ustrak, 851 F.2d at 990 (fees awarded in Court of Appeals), with Smith v. Detroit Bd. of Educ., 728 F.

2d 359, 360 (6th Cir.1984) (per curiam) (district court more appropriate forum to award fees incurred in appeal),

and Souza v. Southworth, 564 F.2d 609, 613–14 (1st Cir.1977), and Ninth Circuit Rule 39–1.6–1.8. See generally

Attorneys’ Fees–Civil Rights–Fees on Appeal, 8 No. 4 Fed. Litig. 113 (1993).

7

We believe a reduction of 12 hours of Mr. Benson’s time is required. With respect to Attorney Moritz’s time, a

reduction of 4.5 hours, and law clerks, 5 hours, is in our estimation reasonable. We are concerned about Mr.

Shaw’s failure to give a more speciﬁc day by day itemization of his time, and that at least part of his time was

spent in discussing who should argue the case. A reduction of 20 hours is appropriate. We reduce Mr. Kirklin’s

hours by 2.

6

The issue of whether the Court of Appeals may award fees in the ﬁrst instance, though settled in this circuit, is the

subject of a split of authority elsewhere. Compare Yaron v. Township of Northampton, 963 F.2d 33, 36 (3d Cir.

1992), and Ustrak, 851 F.2d at 990 (fees awarded in Court of Appeals), with Smith v. Detroit Bd. of Educ., 728 F.

2d 359, 360 (6th Cir.1984) (per curiam) (district court more appropriate forum to award fees incurred in appeal),

and Souza v. Southworth, 564 F.2d 609, 613–14 (1st Cir.1977), and Ninth Circuit Rule 39–1.6–1.8. See generally

Attorneys’ Fees–Civil Rights–Fees on Appeal, 8 No. 4 Fed. Litig. 113 (1993).

7

We believe a reduction of 12 hours of Mr. Benson’s time is required. With respect to Attorney Moritz’s time, a

reduction of 4.5 hours, and law clerks, 5 hours, is in our estimation reasonable. We are concerned about Mr.

Shaw’s failure to give a more speciﬁc day by day itemization of his time, and that at least part of his time was

spent in discussing who should argue the case. A reduction of 20 hours is appropriate. We reduce Mr. Kirklin’s

hours by 2.

 
 131 F.3d 716 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester-Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd-Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs–Appellants, American Federation of Teachers, Local 691, Intervenor below–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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education; School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of
Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of Directors; John W. Still, Member of the Board of Directors, Defendants–
Appellees. Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester-Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd-Peter; Leland Guess, by his next friend, Sharon Guess; Plaintiffs–Appellees, American Federation of Teachers, Local 691, Intervenor below–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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education; Defendants–Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants–Appellees.
Nos. 97–1968, 97–2078. |
Submitted Sept. 10, 1997. |
Decided Dec. 1, 1997.
Synopsis In school desegregation action, state moved for determination of unitary status and approval of transition plan and settlement with school district that would result in state’s dismissal from case. Plaintiffs opposed motions. The United States District Court for the Western District of Missouri, Russell G. Clark, Senior District Judge, 959 F.Supp. 1151, denied unitary status

except as to extracurricular activities but approved settlement. Plaintiffs and state cross-appealed. The Court of Appeals, 122 F.3d 588, affirmed. Plaintiffs applied for award of fees incurred on appeal. State objected. The Court of Appeals, John R. Gibson, Circuit Judge, held that: (1) plaintiffs were entitled to fee award for briefing appeal of approval of settlement agreement between state and school district; (2) terms of settlement did not shift to school district any liability for award of statutory attorney fees incurred by plaintiffs in opposing approval of agreement; (3) plaintiffs were entitled to award of fees for time counsel spent in seeking stay pending appeal; but (4) plaintiffs were not entitled to recover fee for approximately one hour that counsel spent in talking to media.
Fees and expenses awarded.
Attorneys and Law Firms
*718 Arthur A. Benson, II, Jamie K. Lansford, Benson & Associates, Kansas City, MO, for Plaintiffs–Appellants.
Scott Alan Raisher, Jolley & Walsh, Kansas City, MO, for American Federation of Teachers, Local 691.
Bart Anton Matanic, John R. Munich, Attorney General’s Office, Jefferson City, MO, for State of Mo., Mel Carnahan, Bob Holden, Missouri State Bd. of Educ., Peter Herschend, Thomas R. Davis, Robert E. Bartman, Gary D. Cunningham, Rice Pete Burns, Sharon M. Williams, Betty Preston, Jacquelline Wellington, Russell Thompson.
Mark A. Thornhill, Spencer & Fane, Kansas City, MO, Taylor Fields, Fields & Brown, Kansas City, MO, for School Dist. of Kansas City, Dr. Henry D. Williams, Terry M. Riley, Lance Loewenstein, Marilyn Simmons, Sandy Aguire Mayer, John A. Rios, Darwin Curls, Patricia Kurtz, Edward J. Newsome, Dr. Julia H. Hill, John W. Still.
Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
The Jenkins Class presents an application for fees for the appeals that resulted in our affirmance of the district court’s decision denying unitary status and approving the settlement *719 between the State of Missouri and the Kansas City, Missouri School District. The Jenkins Class appealed the order approving the settlement, and the State appealed the district court’s order denying unitary status. Our decision on these appeals is Jenkins v. State of Missouri, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ).
The State objects to the request for a fee because the Jenkins Class was unsuccessful in its main goal of keeping the State in the case and because the Jenkins Class appeal sought unsuccessfully to enhance its victory in the district court. The State also argues that the Jenkins Class’s request should be reduced by sixty percent to account for the lack of success on the Agreement appeal. The Jenkins Class responds that, even though it did not succeed in its challenge to the Agreement, the Agreement issue was inextricably intertwined with the unitariness issue on which it did prevail. The State argues that the unitariness issue and Agreement issues were not inextricably intertwined, and therefore the Jenkins Class should not receive fees for briefing its appeal of the district court’s approval of the Agreement.
The State also argues that if the Jenkins Class receives any fee, it should be paid by KCMSD under the terms of the settlement Agreement.
The final position of the State is that, should the State not prevail on its other arguments, the court should exclude all time requested for the stay motion filed by the Jenkins Class and time spent by counsel for the Jenkins Class in discussions with the media.
I.

[1] The State first argues that the unitary status and agreement issues were not inextricably intertwined, and thus the Class should not receive fees for briefing the appeal of the district court’s approval of the Agreement. This argument, however, is directly contrary to the ruling of the district court granting fees to the Jenkins Class for the trial court activities in litigating the unitary status/Agreement issues. The district court referred to these as inter-related claims. In affirming the district court order, we stated in our unpublished order in Jenkins v. Missouri, No. 97–2626, 1997 WL 464173 (8th Cir. Aug. 14, 1997) (unpublished), vacated in part on different grounds, 128 F.3d 1201(8th Cir.1997):
The district court’s order on the motions for unitariness and approval of the agreement demonstrates the close inter-relationship between the issues pertaining to unitary status and approval of the settlement. Indeed, the district court’s findings that the achievement gap had not been remedied, but was to be remedied within three years, and that the Green1 factors, with the exception of extracurricular activities, would be unitary within two or three years, were essentially the factual findings undergirding the district court’s approval of the settlement between the State and the KCMSD.
Id. at *1. (Footnote omitted). The State filed a motion for rehearing en banc with respect to that order, directed only to the issue of expert witness fees. This court has granted the State’s motion. Order of October 10, 1997. The State did not challenge that part of our order in No. 97–2626 which concerns the same issues before us in this appeal.
The inter-relation between the Agreement issues and the unitariness issues is demonstrated in our opinion in Jenkins XIV, 122 F.3d at 601–03. We stated that the basic foundation of the district court’s approval of the Agreement was the assumption that KCMSD will be unitary within two to three years. Id. at 601. We discussed in some detail the testimony of the several witnesses. Id. at 601–02. Our discussion leaves no question that the issues were closely inter-related. Therefore, the Jenkins Class is entitled to a fee for both the work in defending the State’s appeal of the unitariness issue and the Agreement issues.
[2] We further reject the State’s argument that the Jenkins Class “appealed seeking to expand their victory by defeating the District Court’s approval of the Agreement.” *720 (citing Jenkins v. Missouri, 115 F.3d 554, 560 (8th Cir.1997), as modified, 127 F.3d 709 (8th Cir.1997) (Jenkins Fees VI )). The Jenkins Class found itself caught between the State and KCMSD in an agreement by the two that restricted the total amount of funds to be available for concluding the remedy for the constitutional violations. We have no hesitation in saying that, in this two on one struggle, the Jenkins Class’s participation in the appeal was as a whole defensive, not only in defending the ruling rejecting a finding of unitariness, but also in attempting to escape the imposition of a settlement to which it was not a party, the net result of which would reduce the funds available for the remedy. Moreover, we have already held that the Agreement issue was inextricably intertwined with the unitariness issue, in which the Class was in this court defending its success below.
II.
[3] The State further argues that if fees are awarded for the Agreement appeal, the KCMSD should be required to pay them. It argues that the district court’s order approving the Agreement affirmed by this court, as well as the Agreement itself, requires that the KCMSD bear this burden.
The issue of attorneys’ fees for the Jenkins Class is not dealt with explicitly in the Agreement itself. The Agreement provides generally: “[T]he Court shall not impose or order any further obligations on the State and the State’s only obligations during [the period in which the state is still making payments] shall be those set forth in the Agreement.” The language of the Agreement recited that it was “contingent upon court approval” and, except for the section on interim payments, would not become binding on any of the parties unless and until final court approval was obtained. Final court approval was said in section 2 to occur when “the District Court approves the Agreement and such approval has been upheld by the appellate courts, or all appeals or requests for review have been dismissed, whichever occurs earlier.” The fee application before us concerns work performed before our judicial approval of the Agreement, and, therefore, before the Agreement effectively altered the parties’ relations. As the long history of this litigation has demonstrated to all parties, the litigation of the issues on the merits has been followed routinely by requests for fees by the Jenkins Class, and upon occasion by others, and this in turn has spawned considerable additional litigation. We have published six opinions on fee issues,2 one of which has gone on to the Supreme Court, and it would not be fruitful for us to catalog the number of unpublished orders issued by this court dealing with fees. Under these circumstances, when the State and the KCMSD entered into an agreement to settle the claims

and conclude the payments for the remedy, we cannot believe that fee litigation was a consideration that would escape their attention. The State and the KCMSD could have specifically dealt with this issue had they so chosen, but they did not do so. Further, as the Jenkins Class was not a party to the Agreement, we cannot conclude that it is foreclosed from seeking a fee from the State for this litigation on both unitariness and the Agreement. First, the fees were incurred by the Jenkins Class before the action of this court in affirming the approval of the Agreement, and secondly the final act that concludes liability of the State, the payment of the amounts due under the Agreement, has not yet occurred. We therefore conclude that the terms of the Agreement did not shift to the KCMSD any liability for an award of statutory attorneys’ fees incurred in opposing the district court’s adoption of the Agreement.3

*721 III.
[4] Finally, the State argues that time spent by the Jenkins Class attorneys seeking a stay order should be excluded. The motion for stay of the district court’s order pending the appeal was directly related to the appellate activity before this court. We took the motion with the case, to be disposed of at the time of disposition on the merits. However, the motion was not entirely without effect, since it resulted in an expedited briefing and argument schedule for the appeal. Counsel for the Jenkins Class deducted from its fee request some of the time two of its attorneys recorded for the stay motion. We reject the argument that such time should be excluded altogether.
[5] In one respect, the State makes a valid assertion. Attorney Lansford’s time sheets submitted with the application show approximately one hour spent in talking to the media. We have held that public relation efforts necessary to accomplish the objectives of the litigation may be compensated under section 1988. Jenkins v. Missouri, 862 F.2d 677, 678 (8th Cir.1988) ( Jenkins Fees II ). Since the Jenkins Class has not informed the court of the purpose of attorney Lansford’s press contacts so that we may determine if the services were necessary to the litigation, we disallow the hour.

IV. We award the Jenkins Class fees and expenses as follows:

Fees Expenses

$68,295.00 $ 2,524.02

All Citations 131 F.3d 716, 122 Ed. Law Rep. 967

Footnotes

1

Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

2

Jenkins v. Missouri, 838 F.2d 260 (8th Cir.1988) (Jenkins Fees I ), aff’d, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.

2d 229 (1989); Jenkins v. Missouri, 862 F.2d 677 (8th Cir.1988) (Jenkins Fees II ); Jenkins v. Missouri, 931 F.2d

1273 (8th Cir.) (Jenkins Fees III ), cert. denied, 502 U.S. 925, 112 S.Ct. 338, 116 L.Ed.2d 278 (1991); Jenkins v.

Missouri, 967 F.2d 1248 (8th Cir.1992) (Jenkins Fees IV ); Jenkins v. Missouri, 73 F.3d 201 (8th Cir.1996)

Footnotes

1

Green v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968).

2

Jenkins v. Missouri, 838 F.2d 260 (8th Cir.1988) (Jenkins Fees I ), aff’d, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.

2d 229 (1989); Jenkins v. Missouri, 862 F.2d 677 (8th Cir.1988) (Jenkins Fees II ); Jenkins v. Missouri, 931 F.2d

1273 (8th Cir.) (Jenkins Fees III ), cert. denied, 502 U.S. 925, 112 S.Ct. 338, 116 L.Ed.2d 278 (1991); Jenkins v.

Missouri, 967 F.2d 1248 (8th Cir.1992) (Jenkins Fees IV ); Jenkins v. Missouri, 73 F.3d 201 (8th Cir.1996)

(Jenkins Fees V ); Jenkins v. Missouri, 127 F.3d 709 (8th Cir.1997) (Jenkins Fees VI ).

3

On several occasions, the State refers to “the three party Agreement,” evidently overlooking our statement in

Jenkins XIV: “The two constitutional violators, the State and the KCMSD, have agreed to release one of the

violators, the State, from any further duty to the constitutional victims beyond the duty to pay the speciﬁed sums

of money. The constitutional victims are not a party to this agreement.” 122 F.3d at 601.

 
 133 F.3d 560 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephen D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess; by his next friend, Sharon Guess, Plaintiff–Appellants, 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; Thomas R. Davis, Member of the Missouri State Board of Education; Robert E. Bartman,
Commissioner of Education of the State of Missouri; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member of the Missouri State Board of Education; Betty Preston, Member of
the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; William Kahn, Member of
the Missouri State Board of Education, Defendants–Appellees, School District of Kansas City; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Dawrin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Henry D. Williams, Superintendent; John W. Still, Member of the Board of Directors, Defendants.
No. 97–2626. |
Dec. 1, 1997.
Before RICHARD S. ARNOLD, Chief Judge, HEANEY, McMILLIAN, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges, En Banc.
Opinion
PER CURIAM.
On October 10, 1997, this Court entered its amended order granting rehearing en banc on the sole issue of the award of expert witness fees. In all other respects, the panel opinion was left in effect.
We have now been advised that the appellees have withdrawn their claim for the expert witness fees that had been in controversy. Accordingly, the remaining issue in this case, the issue with respect to which rehearing en banc was granted, has become moot.
This Court’s order granting rehearing en banc is hereby vacated. There will be no need for an oral argument or further en banc proceedings. The portion of the panel opinion *561 dealing with the expert witness fees in question is vacated as moot.
It is so ordered.
All Citations
133 F.3d 560 (Mem), 123 Ed. Law Rep. 476

 
 158 F.3d 980 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess; Plaintiffs–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; Thomas R. Davis, Member of the Missouri State Board of Education; Robert E. Bartman,
Commissioner of Education of the State of Missouri; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member of the Missouri State Board of Education; Betty Preston, Member of
the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; Defendants–Appellees, School District of Kansas City; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Henry D. Williams, Superintendent; John W. Still, Member of the Board of Directors, Defendants–
Appellants.
Nos. 97–4112, 98–1978. |
Submitted July 9, 1998. |
Decided Oct. 19, 1998.
Synopsis After approval of settlement agreement in school desegregation case, State of Missouri moved for declaration that it would not be liable for any further attorney fees incurred by a class after date of approval of settlement. The United States District Court for the Western District of Missouri, Dean Whipple, J., held school district liable for the fees, and district appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that State was liable for attorney fees.
Reversed and remanded.
Attorneys and Law Firms
*980 Arthur A. Benson II, Kansas City, MO, argued (Jamie Kathryn Lansford, on the brief), for appellees Jenkins, et al.
Bart A. Matanic, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, *981 John R. Munich and Michael F. Fields, on the brief), for appellee State of Missouri.
David A. Naatz, Kansas City, MO, argued (Taylor Fields, Charles R. Brown, Michael F. Delaney, Mark A. Thornhill and John P Jennings, on the brief), for appellants.
Before McMILLIAN, HEANEY and JOHN R. GIBSON, Circuit Judges.
Opinion

JOHN R. GIBSON, Circuit Judge.
The question before us is whether the State of Missouri or the Kansas City, Missouri School District should be liable for the Jenkins’ class’s attorneys’ fees and expenses incurred in litigation in the district court between the date of the district court’s order approving the settlement agreement and the expiration of any right to further appeal from that order. Because the district court’s order holding KCMSD liable is predicated on an interpretation of the settlement agreement in direct conflict with our earlier interpretation of the same agreement, we reverse and order that the fees and expenses be paid by the State. We remand to the district court for further development of the record on the issue of whether to award fees to compensate the Jenkins class for the services of experts engaged in monitoring activities.
I.
On March 25, 1997, the district court simultaneously denied the State’s motion to have the KCMSD declared unitary and approved a settlement agreement between the State and the KCMSD permitting the State to satisfy any further obligations to the KCMSD in the Jenkins litigation by the payment of $320 million. Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.1997). We affirmed. Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ).
After approval of the agreement, the State moved the district court for a declaration that it would not be liable for any further Jenkins class attorneys’ fees incurred after the date of the district court’s approval of the settlement. The State argued that it was no longer liable to do anything other than pay the $320 million agreed to in the settlement. In an opinion issued on October 2, 1997, the district court interpreted the agreement to relieve the State of liability for the Jenkins class’s fees: “The language of the Order and the Agreement indicate that court-approval was based upon on [sic] an understanding that, although the State remained substantively liable on the merits, it would fulfill its remaining remedial duty to the plaintiffs solely through the payments set out in the Agreement.” Order of October 2, 1997, slip op. at 13–14. The district court acknowledged the settlement agreement’s paragraph nine, which provides that the agreement would not become effective until after appeals were exhausted. However, the court annulled paragraph nine under Rule 60(b), citing Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). Slip op. at 17–19. The court therefore held that any compensable fees incurred by the Jenkins class after the date of the district court’s approval of the settlement must be paid by the KCMSD, not the State. However, the court ruled that the State should be liable for the Jenkins class’s fees if those fees arose from legal controversies initiated by the State. Slip op. at 18.
Shortly thereafter, we had occasion to interpret the settlement agreement, and we reached the opposite result from the district court’s holding. On August 26, 1997, the Jenkins class had asked us to hold the State liable for the class’s attorneys’ fees incurred in the appeal of the joint unitariness and settlement order. Jenkins v. Missouri, 131 F.3d 716, 718 (8th Cir.1997) (Jenkins Fees VIII ).1 In Jenkins Fees VIII, the State argued that the terms of the settlement released it from liability except the obligation to pay $320 million. The State contended that only the KCMSD could be liable for any further Jenkins class attorneys’ fees. In an opinion filed December 1, 1997, we rejected the State’s argument on two grounds: first, *982 that the terms of the agreement releasing the State from liability provided that the agreement would not be effective until all appeals were exhausted, which they were not; and second, that the agreement did not release the State from liability until it had paid the $320 million, which it had not yet done. 131 F.3d at 720.2 We held that the State was therefore still liable on the merits notwithstanding the agreement to release it from liability at a later time. We further held that the agreement itself did not purport to affect the State’s established liability for attorneys’ fees as long as the State continued to be liable on the merits. Accordingly, we held the State liable for the Jenkins class’s fees. Id.
After our opinion, the issue of the State’s liability for fees was again presented to the district court. The Jenkins class sought fees from the State for monitoring, implementing, and enforcing the desegregation decree from April through September 1997. The district court acknowledged our Jenkins Fees VIII decision, but nevertheless adhered to its own contrary reasoning concluding that the State was released from liability for fees after the date the district court approved the settlement agreement. The district court stated:
The Eighth Circuit suggested that the Agreement became effective as of the date that it affirmed Judge Clark’s approval of the Agreement. However, the Eighth Circuit’s opinion entirely omitted any discussion of this Court’s October 2nd Order. The omission suggests that, when the Eighth Circuit

issued its December 1st opinion, it was unaware of this Court’s reasoning for releasing the State from liability as of March 25, 1997. Consequently, this Court is hopeful that the Eighth Circuit will change its position....
Order of March 19, 1998, slip op. at 11. Accordingly, the district court awarded the Jenkins class part of the requested fees, but ordered the KCMSD to pay them, with the exception of one matter in which the court found the State had “initiated” legal activity. Id. at 14.
The KCMSD appeals from the district court’s award of fees against it in contravention of our decision in Jenkins Fees VIII. In defense of the district court’s order, the State argues that the court awarding fees has the discretion to allocate fees among the defendants, and that a difference in the allocation arrived at by the district court and this court does not indicate error, but merely demonstrates the leeway inherent in exercising discretion.
[1] [2] [3] It is true that the allocation of attorneys’ fees among defendants under 42 U.S.C. § 1988 involves the exercise of discretion. See Jenkins v. Missouri, 838 F.2d 260, 267 (8th Cir.1988) (Jenkins Fees I ), aff’d, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). Nevertheless, “[a] district court by definition abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). In this case, the district court’s decision to award fees against the KCMSD rather than the State was based on a legal error. The district court first annulled a provision of an agreement after we had approved the agreement in its entirety. Then, after we had ruled specifically on the question of attorneys’ fees under the agreement, the district court rejected our interpretation and holding, and based its fee award on a contrary interpretation of the agreement. This was not a permissible exercise of discretion. The district court’s rulings were premised on a conclusion of law at odds with our opinion in Jenkins Fees VIII. We need hardly say that where the district court’s view of the law conflicts with ours, our view must prevail.
[4] The State further argues that the district court was entitled to modify its earlier decision approving the settlement agreement, in order to take into account a change in circumstances rendering unjust the enforcement of the earlier decision approving the settlement (citing Booker v. Special School Dist. No.1, 585 F.2d 347, 352 (8th Cir.1978), *983 cert. denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979)). A situation that was foreseen at the time the parties entered an agreement is not ordinarily a ground for modifying the decree based on the agreement. Rufo, 502 U.S. at 385, 112 S.Ct. 748. We held in Jenkins Fees VIII that the State’s continued liability for fees was an obvious result of the settlement agreement’s failure to change the status quo regarding fee liability. 131 F.3d at 720 (“[W]hen the State and the KCMSD entered into an agreement to settle the claims and conclude the payments for the remedy, we cannot believe that fee litigation was a consideration that would escape their attention. The State and the KCMSD could have specifically dealt with this issue had they so chosen, but they did not do so.”) There is no change in fact or law warranting modification of the agreement, and the district court’s conclusion to the contrary was based on an erroneous construction of the settlement agreement.
We therefore reverse the district court’s orders holding that the State is released from liability for the Jenkins class’s fees and expenses as of the date of the district court’s approval of the settlement and annulling paragraph nine of the settlement agreement. Though the agreement would perhaps support continued liability for fees until the State has paid its $320 million and retired from the case, the KCMSD conceded at oral argument that the State should be released for fees incurred after November 10, 1997, the date on which the right to petition for writ of certiorari expired. We order that the fees and expenses be assessed against the State.
II.
The district court awarded the Jenkins class fees for the services of two educational “consultants,” Dr. Judith Gouwens and Dianne Seltzer. Although Dr. Gouwens served as an expert witness on issues relating to the Missouri City voluntary interdistrict plan, the Jenkins class argues that it has separated out and excluded from the fee request the expenses for her testimonial services. The class argues that the services for which it obtained a fee award were non-expert “monitoring” services, comparable to services ordinarily provided by paralegals.
In deciding to award the fees, the district court relied on the earlier decision of Judge Clark allowing similar fees earlier in this case. Order of March 19, 1998, slip op. at 22. We initially affirmed Judge Clark’s award, see Jenkins v. Missouri, No. 97– 2626, 121 F.3d 712 (8th Cir.1997) (table) ( Jenkins Fees VII ), but our order was first vacated by a grant of rehearing en banc,

133 F.3d 559 (8th Cir.1997), and then mooted by the Jenkins class’s withdrawal of its claim. 133 F.3d 560 (8th Cir.1997) (en banc).
The parameters of the question before us are set by West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 101, 111 S.Ct. 1138, 113 L.Ed.2d 68 (1991), which held that expert fees could not be shifted to the losing party under § 1988, and Missouri v. Jenkins, 491 U.S. 274, 285, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), which held that a reasonable attorney’s fee under § 1988 “should compensate the work of paralegals, as well as that of attorneys.” Congress amended § 1988 after Casey to authorize the award of expert fees in cases brought under 42 U.S.C. §§ 1981 and 1981a, Pub.L. No. 102–166, § 113(a)(2), 105 Stat. 1071, 1079 (1991), but that amendment does not affect this section 1983 case.
The Jenkins class does not argue that Casey permits the award of expert fees in certain situations, but instead argues that the services for which it sought compensation were not expert services, but rather the sort of information gathering which is often performed by paralegals. The class argues that it should not be penalized for assigning these tasks to persons who happened to be educational experts, when the same services would be compensable had they been performed by paralegals.
Review of the record does not supply the needed information for evaluating the Jenkins class’s argument. The fee application did not include time sheets for Gouwens and Seltzer, such as the class routinely includes for its paralegals. Instead, the application listed their fees as “expenses,” itemized as follows: “6/30/97 Monitoring assistance of *984 Judy Gouwens and Dianne Seltzer to counsel: gathering data by systematic observations in all classrooms at Lincoln College Prep and Missouri City and writing analysis of data; analysis of KCMSD’s new curriculum with respect to materials needed for its [i]mplementation. (MO City $1500.00) $6,963.07.” The application did not list an hourly rate so that the court could determine whether Gouwens and Seltzer were compensated at a rate commensurate with paralegal fees, or whether they were actually paid for their expertise. Nor does the information provided discuss in detail the work actually done by Gouwens and Seltzer. With only skeletal information about the duties performed and no information about hourly rates, we are unable to evaluate the Jenkins class’s argument that these fees fall within the category permitted by the Supreme Court’s Jenkins Fees case, rather than the category excluded by Casey. We therefore remand for development of a record that would permit the district court to assess the Jenkins class’s claim that the fees are compensable.

All Citations 158 F.3d 980, 130 Ed. Law Rep. 110

Footnotes

1

Although the district court issued its October 2, 1997, order while the Jenkins Fees VIII matter was pending, the

parties did not bring the October 2 order to our attention. Because of the extensive ﬁlings in this case, it has not

been our practice to routinely monitor district court orders which have not been appealed.

2

We said: “First, the fees were incurred by the Jenkins Class before the action of this court in afﬁrming the

approval of the Agreement, and secondly the ﬁnal act that concludes liability of the State, the payment of the

amounts due under the Agreement, has not yet occurred.” 131 F.3d at 720.

 
 158 F.3d 984 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester-Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess; Plaintiffs—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 Hershend, 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education; Defendants—Appellees, School District of Kansas City; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors, Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Henry D. Williams, Superintendent; John W. Still, Member of the Board of Directors, Defendants—
Appellants.
No. 97–2619. |
Submitted Jan. 14, 1998. |
Decided Oct. 19, 1998.
Synopsis The United States District Court for the Western District of Missouri, Russell Clark, J., 959 F.Supp. 1151, in approving settlement of school desegregation action and denying State’s claim that school district was unitary, stated that it was not the court’s duty to insure funding for district, and denied that there was a financial vestige that had to be remedied. District appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that issue of funding for school construction projects ordered in the case was not ripe.
Appeal dismissed.
Attorneys and Law Firms
*985 Charles R. Brown, Kansas City, MO, argued (Taylor Fields, David A. Naatz, Michael F. Delaney, Mark A. Thornhill, John P. Jennings, on the brief), for Defendants–Appellants.
Arthur A. Benson, Kansas City, MO, argued (Jamie Kathryn Lansford, on the brief), for Chinyere Jenkins.
Alfred A. Lindseth, Atlanta, GA, argued (Michael J. Fields and Bart A. Matanic, on the brief), for State of Missouri.
Before McMILLIAN, HEANEY, and John R. GIBSON, Circuit Judges.
Opinion

JOHN R. GIBSON, Circuit Judge.
The Kansas City, Missouri School District appeals from an order of the district court of March 25, 1997, and particularly two statements in the opinion, one that it was not the court’s duty to insure funding for the KCMSD, and one denying that there was a financial vestige that must be remedied. The funding problems that are of particular concern to the KCMSD have been resolved by a state constitutional amendment authorizing the board to set the levy at $4.95. See H.J.R. No. 9, 89th General Assembly (Mo.1997) (approved by the voters April 7, 1998) (amending Mo. Const. Art. 10 § 11(g) to permit school boards whose operating levy for 1995 was set by court order to set subsequent tax rates at any level lower than the 1995 rate (which was $4.96 for the KCMSD) without voter approval). The uncertainty over the availability of these funds seems to generate KCMSD’s primary argument. The second concern is that a second piece of legislation which could provide additional funding for the district, Senate Bill 781, is contingent on final settlement of the St. Louis desegregation case on or before March 15, 1999. The KCMSD states that this issue is not yet ripe and suggests holding it in abeyance until the contingency has been resolved. We believe our best course is to dismiss the appeal.
The district court’s order of March 25, 1997, approved a settlement agreement between the KCMSD and the State of Missouri, and denied the State’s claim that the district was unitary. Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.1997). We affirmed in Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ). The district court’s decision was a lengthy one and made a detailed review of the long history of this litigation. The district court denied that there was a financial vestige as such and stated further that it was not the court’s duty to insure funding for the KCMSD. 959 F.Supp. at 1169.
A number of issues that have been raised by the parties make some response desirable, however. We must first say that when an issue is raised by the KCMSD that points to two specific statements in the district court’s opinion, both of which are made in the court’s chain of reasoning for an ultimate holding, we are inclined to view such arguments as essentially asking for an advisory opinion, and in the context of the statements made in this case, comments on our earlier decisions. We need not restate that which was plainly enunciated in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (Jenkins II ), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). We think it suffices to say that our decisions heretofore have been clear as to identification of the vestiges of the segregated school system, and we need refer only to Jenkins II, 855 F.2d at 1305. The answers to the questions raised by the KCMSD can be found in those decisions and we need not repeat what has been said before.
It should be further stated, as is so evident, that while a settlement has been reached between KCMSD and the State of Missouri that will ultimately, if all conditions *986 are satisfied, result in a final order that the district is unitary with respect to claims asserted against the State, there is no issue before the court as to whether the district is unitary with respect to the claims asserted against it by the Jenkins class. The KCMSD and the Jenkins class remain subject to the orders of the district court and this court until there has been a final determination that the district is unitary. Any determination that the district is unitary must, of course, be made in accordance with those standards we recognized in Jenkins XIV, 122 F.3d at 595–97, and the teachings of the Supreme Court we discussed in that opinion. Until that time, when ripe issues are raised that affect the concerns of the KCMSD or the Jenkins Class with respect to future funding issues, they may be presented to the district court in the first instance, and any aggrieved party may appeal from any order of that court.
The essence of the KCMSD’s argument is that it is on the brink of a funding crisis because it is uncertain whether it will have sufficient funds to retire the bonds issued to fund the school construction projects ordered in this case. After this appeal was argued, the voters of Missouri by referendum adopted a constitutional amendment that allows the board of the KCMSD to set the tax rate at an amount up to $4.95 for $100 assessed valuation. See H.J.R. No. 9. It is now evident that KCMSD can raise funds to retire the bonds. The only contingency would be that the KCMSD board would fail or refuse to vote such levies, which is strictly hypothetical on the record before us. We believe that the KCMSD is asking for an advisory opinion concerning its predicament should certain facts come about. This is a thicket we should not enter. See Preiser v. Newkirk, 422 U.S. 395, 401–03, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (court lacks power to render advisory opinion); Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050–51 (8th Cir.1996) (ripeness requires a live dispute, not speculative threat).
The documents authorizing the issuance of the bonds have declared the intention to satisfy the obligation to make payments out of the “increase in the property tax levy of $1.95 per $100 assessed valuation.” This was a portion of the additional property taxes that were made possible through the procedure suggested by this court and approved by the Supreme Court, namely that the school board was authorized to set a levy necessary to fund the operation of the school district, including the desegregation funding; insofar as state laws would interfere with the adoption of said levy, the district court could enter injunctive orders to set aside the enforcement of such state laws or constitutional provisions. See Jenkins II, 855 F.2d at 1314,

aff’d in relevant part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). The new constitutional amendment now gives the KCMSD board authority to maintain that part of its levy which has heretofore been devoted to retire its indebtedness.
Should the KCMSD fail to provide sufficient funding to cover retirement of the bonds or other obligations, the aggrieved parties can seek appropriate relief. Should efforts be made to declare the district unitary before retirement of the obligations for the new construction, the issue can appropriately be determined at that time. Should this issue arise, there will be time enough to bring it before this court.
New legislation enacted after argument on this appeal, S. Bill No. 781, 89th General Assembly (Mo.1998) (enacted), is expected to result in significant additional revenues to the KCMSD. As the parties make clear, this legislation is contingent upon settlement of the St. Louis school desegregation on or before March 15, 1999. If the funds are available, KCMSD’s financial concerns will be greatly alleviated. KCMSD agrees that any issue concerning this additional funding is not yet ripe for review insofar as various hypothetical occurrences arise from the arguments of the parties. If the issue requires resolution in the future, it may be addressed on the record then before us.
Accordingly, the appeal is dismissed with the clear proviso that if some of the contingencies argued by the parties come to pass the issues may be raised when they are ripe and require a decision.
All Citations
158 F.3d 984, 130 Ed. Law Rep. 114

 
 170 F.3d 846 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess; 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; 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; Terry M. Riley, Member of the Board of Directors; Sharon M. Williams, Member of the Missouri State Board of Education; Lance Loewenstein, Member of the Board of Directors; Betty Preston, Member of the
Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; John A. Rios, Member of the Board of Directors; Darwin Curls,
Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; John W. Still, Member of the Board of Directors, Defendants–Appellees. Chinyere Jenkins, by her next friend, Joi Jenkins; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs–Appellees, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants–Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants–Appellees. Chinyere Jenkins, by her next friend, Joi Jenkins; Nicholas Paul Winchester–Rabelier, by his next friend, Paula
Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess; Plaintiffs–Appellees, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants–Appellants, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the

Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants–Appellees. Chinyere Jenkins, by her next friend, Joi Jenkins; Nicholas Paul Winchester–Rabelier, by his next friend, Paula
Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs–Appellees, American Federation of Teachers, Local 691, Intervenor below–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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants–Appellants, School District of Kansas City; Dr. Henry R. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors; John A. Rios, Member of the Board
of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board of Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of
Directors; John W. Still, Member of the Board of Directors, Defendants–Appellees. Chinyere Jenkins, by her next friend, Joi Jenkins; Nicholas Paul Winchester–Rabelier, by his next friend, Paula
Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend,
Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, Plaintiffs–Appellants, 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; 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; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member
of the Missouri State Board of Education; Betty Preston, Member of the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the
Missouri State Board of Education, Defendants–Appellees, School District of Kansas City; Dr. Henry D. Williams, Superintendent thereof; Terry M. Riley, Member of the Board of Directors; Lance Loewenstein, Member of the Board of Directors; Marilyn Simmons, Member of the Board of Directors; Sandy Aguire Mayer, Member of the Board of Directors, John A. Rios, Member of the Board of Directors; Darwin Curls, Member of the Board of Directors; Patricia Kurtz, Member of the Board Directors; Edward J. Newsome, Member of the Board of Directors; Dr. Julia H. Hill, Member of the Board of Directors;
John W. Still, Member of the Board of Directors, Defendants.
Nos. 96–2809, 96–2918, 96–3215, 96–3568 and 96–3870. |
Submitted Nov. 6, 1997. |
Decided March 15, 1999.
Synopsis In school desegregation suit, after the United States District Court for the Western District of Missouri, Dean Whipple, J., denied request for attorneys’ fees, but the Court of Appeals, 127 F.3d 709, reversed and awarded fees, plaintiff class sought award of attorneys’ fees and expenses incurred in defending against state’s petitions for rehearing on earlier fee awards. The Court of Appeals, John R. Gibson, Circuit Judge, held that plaintiff class could recover attorneys’ fees for defending against state’s petitions for rehearing of appeals.

Granted.
Attorneys and Law Firms
*849 Arthur A. Benson, II, Jamie Kathryn Lansford, Kansas City, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, John R. Munich, Michael J. Fields, Bart A. Matanic, for Appellee.
Before: McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
The Jenkins class seeks an award under 42 U.S.C. § 1988 (Supp. II 1996) for attorneys’ fees and expenses incurred in defending against the State’s petitions for rehearing on earlier fee awards. We grant an award of fees and expenses reduced to account for partial success.
After we awarded fees in Jenkins v. Missouri, Nos. 96–2809, 96–2918, 96–3215, and 96–3568 (8th Cir. July 11, 1997) (unpublished), and held that fees should be awarded in Jenkins v. Missouri, 115 F.3d 554 (8th Cir.1997), the State petitioned for rehearing on both orders. Rehearing was denied as to No. 96–2809 and consolidated cases, but granted as to No. 96–3870. Jenkins v. Missouri, 124 F.3d 1310 (8th Cir.1997). We then entered a revised panel opinion in No. 96–3870 in which we adhered to our original holding that fees should be awarded and in fact awarded fees. However, we only awarded half the amount requested by the class, to reflect the class’s limited success in the particular matter for which fees were requested. Jenkins v. Missouri, 127 F.3d 709 (8th Cir.1997) (Jenkins Fees VI ). The Jenkins class then requested an award of fees and expenses for defending against the rehearing petitions. The State and the KCMSD oppose the request.
The State argues that the Jenkins class is not entitled to fees because it was not successful in resisting the rehearing petition in No. 96–3870. This is a question of whether the glass is half full or half empty, since the Jenkins class retained its award but suffered a reduction from its requested amount. Fortunately, Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), gives us a framework for handling such cases. As we developed at length in Jenkins Fees VI, 127 F.3d at 716, the Jenkins class is the prevailing party in this litigation, and the litigation at issue in No. 96–3870 was integrally related to the underlying case in which the class has been quite successful. 127 F.3d at 719. The fees requested here were incurred in work that was “useful and of a type ordinarily necessary.” Id. at 718 (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 561, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986)). Because we held that an award of fees was proper in the two underlying appeals, it follows that defending against an *850 attack on the propriety of those awards is also work that is a proper subject for a fee award.
The KCMSD argues that fee awards for fee litigation must have an end, and that awarding fees in this case will encourage counsel to file further requests “in seriatim and in perpetuity.” The short answer to that argument is that the Jenkins class did not file the rehearing petitions; it is hardly equitable to blame the class for litigation initiated by the State, which the class was required to defend.
We recognized in Jenkins Fees VI that success in the particular matter litigated is “relevant but not determinative to the reasonableness of the fee” in that matter. 127 F.3d at 718. We therefore conclude that a reasonable fee for defending against the partially successful rehearing motion in No. 96–3870 is half the amount requested. We thus award the Jenkins class fees of $11,648.75 and expenses of $835.78 in No. 96–3870. In No. 96–2809 and consolidated cases, in which the rehearing petition was denied, we award full compensation of $1,840.35 for fees and expenses. As the fees and expenses were all incurred before November 10, 1997, the State is liable for the award, in accordance with our opinion in Jenkins v. Missouri, 158 F.3d 980, 983 (8th Cir.1998) (Jenkins Fees IX ).
All Citations

170 F.3d 846, 133 Ed. Law Rep. 344

 
 73 F.Supp.2d 1058 United States District Court,
W.D. Missouri, Western Division. Chinyere JENKINS, et al., Plaintiffs,
v. SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Defendants.
No. 77–0420–CV–W–1. |
Nov. 17, 1999.
Synopsis School district moved to invalidate a decision of the State Board of Education’s decision to designate it as unaccredited. The District Court, Whipple, J., held that: (1) decision to designate school district as unaccredited was based on standards that were fully consistent with the court’s desegregation orders and would not be invalidated, and (2) prior desegregation orders would be modified so as to grant school district complete relief from further liability under those orders.
Order in accordance with opinion.
Attorneys and Law Firms
*1059 Arthur A. Benson, Kansas City, MO, for plaintiffs.
Brian Wood, Kansas City, MO, for American Federation of Teachers.
Mark A. Thornhill, Spencer, Fane, Charles Brown, Kansas City, MO, for Kansas City, MO School District.
Bart A. Matanic , Missouri Attorney General’s Office, Jefferson City, MO, for State of Missouri.
ORDER
WHIPPLE, District Judge.
The Board of Education for the Kansas City Missouri School District (“KCMSD” or “District”) has asked the Court to rule that the KCMSD cannot fulfill its constitutional obligation to provide a desegregated education while remaining subject to state accreditation standards mandating the provision of a quality education. The Court finds that the Constitution’s standards for a desegregated education do not conflict with the State’s standards for a quality education. Moreover, the Court finds that the KCMSD’s loss of accreditation for failing to provide a quality education does not mean that it has failed to provide a desegregated education. The KCMSD has complied in good faith with the Court’s desegregation decrees since they were first entered in 1984 and is currently operating in compliance with the United States Constitution. Finally, the Court finds that the loss of accreditation will not significantly interfere with the KCMSD’s efforts to continue providing a desegregated education in compliance with the Constitution. For these reasons, the Court now enters the following Order:
I. THE KCMSD’S PENDING MOTION

On October 21, 1999, the Missouri State Board of Education (“State Board”) unanimously voted to designate the KCMSD as unaccredited effective May 1, 2000. The State Board based its decision on a detailed review by the Department of Elementary and Secondary Education (“DESE”). In that review, DESE found that the KCMSD had failed to meet any of eleven performance standards used for evaluating and classifying the State of Missouri’s public school districts. See KCMSD Exhibit 4, “Final Report for the Missouri School Improvement Review” at 72 (October 8, 1999).
The Board of Education for the KCMSD (“School Board”) has moved the Court for an Order declaring the State Board’s decision void and, if warranted, rejoining the State of Missouri, the State Board, and the State Commissioner of Education as Defendants in this case. See KCMSD’s Amended Motion for Equitable Relief [Doc. # 4791] (October 25, 1999). The School Board does not challenge the correctness of DESE’s findings or the statutory authority of the State Board to remove the District’s accreditation. Instead, the School Board argues that the State Board’s decision to designate the District as unaccredited impairs the District’s ability to comply with the Court’s desegregation orders and may ultimately prevent it from achieving unitary status. Id. The Court heard evidence and oral arguments on the KCMSD’s motion on November 1st and 2nd, 1999. While preserving its objection to insufficient service of process, the State of Missouri made a limited appearance at the hearing to oppose the KCMSD’s motion.
II. MOTION TO REJOIN THE FORMER STATE DEFENDANTS
The Court previously released the State of Missouri, the Governor, the State Board, and the Commissioner of Education *1060 (collectively referred to as the “former State Defendants”) after finding that they had fully paid all of their funding obligations under the terms of the May 21, 1996 Settlement Agreement with the KCMSD. See Order [Doc. # 4760] (January 28, 1999). The 1996 Settlement Agreement, which was modified and ultimately approved by the Court in March 1997, provided that the former State Defendants would pay the KCMSD $320 million in desegregation funding over a three-year period. See Jenkins v. Missouri, 959 F.Supp. 1151, 1169 (W.D.Mo.1997). Upon final payment of that amount, the former State Defendants would be entitled to an Order dismissing them from the case. See id. at 1172 (“holding that any remaining obligation of the State to the school children of Kansas City may be discharged by the payment of funds provided for in the Agreement”). The former State Defendants paid the final installment to the KCMSD on December 3, 1998; the Court dismissed them from the case with prejudice on January 28, 1999. See Order [Doc. # 4760] (January 28, 1999).
Although the KCMSD’s motion requests rejoinder of the State of Missouri, the State Board, and the State Commissioner of Education, the District’s attorneys did not present any oral arguments on this issue. Moreover, the KCMSD produced no legal authority for a court’s ability to rejoin former parties after it has dismissed those parties from the case with prejudice. Proper respect for the finality of the Court’s dismissal of the former State defendants weighs heavily against rejoinder. The Court holds that circumstances in this case do not presently warrant consideration of the KCMSD’s motion for rejoinder of the former State Defendants. Rejoinder is DENIED.
III. MOTION TO VOID THE UNACCREDITED DESIGNATION
The KCMSD’s motion also asks the Court to declare the State Board’s accreditation decision void ab initio. The KCMSD argues that an unaccredited designation will cripple its ability to comply with the Court’s remedial orders and achieve unitary status. See KCMSD’s Amended Motion for Equitable Relief at 3–4. To resolve the merits of the KCMSD’s arguments, the Court finds it necessary to review the history of this case, the basis for the State’s accreditation decision, and the recent events that have brought the State and the parties to this point.
A. Background and Findings of Fact
1. Initial Liability and Remedy In 1984, the Court held that the State of Missouri had mandated the operation of a dual school system prior to 1954. See Jenkins v. Missouri, 593 F.Supp. 1485, 1504 (W.D.Mo.1984). The Court also held that the State and the KCMSD had not fulfilled their constitutional obligations to dismantle that system. Id. The Court found two vestiges of the former dual school

system still lingering in the KCMSD: (1) the existence of 25 racially isolated schools with over 90% black students, and (2) a “system wide reduction in student achievement.” See Missouri v. Jenkins, 515 U.S. 70, 74–75, 115 S.Ct. 2038, 2042, 132 L.Ed.2d 63 (1995) (Jenkins III ) (citing Jenkins v. Missouri, 639 F.Supp. 19, 24 & 36 (W.D.Mo.1985)). The Court ordered the KCMSD and the State to prepare, implement and fund a remedial plan that would eliminate these lingering effects of prior segregation and achieve a truly unitary school system. Jenkins, 639 F.Supp. at 24 (W.D.Mo.1985).
The resulting desegregation plan was intended to create a premiere school district with excellent facilities, low studentteacher ratios, and high-quality education programs. Id. at 26–41. The ultimate purpose was to raise the achievement of the KCMSD’s existing students as well as attract white suburban children into the KCMSD to neutralize the racial imbalance and raise overall test scores. Id. at 26–29, 37–41. The Court’s desegregation plan has been described as “the most ambitious *1061 and expensive remedial program in the history of school desegregation.” Jenkins III, 515 U.S. at 79, 115 S.Ct. at 2044 (citing Jenkins, 19 F.3d 393, 397 (8th Cir.1994) (Beam, J., dissenting)).
2. The Directives of Jenkins III In 1995, the United States Supreme Court held that portions of the court-ordered desegregation plan were unconstitutional because they went “beyond the scope of [the District Court’s] broad remedial authority.” Jenkins III, 515 U.S. at 94, 115 S.Ct. at 2052. The Supreme Court carefully prescribed the scope of this Court’s remedial authority—“to remedy the violation to the extent practicable.” Id. at 102, 115 S.Ct. at 2056. The Supreme Court acknowledged that racial isolation in 25 KCMSD schools was one effect of prior segregation that must be remedied to the extent practicable. Id. at 90, 115 S.Ct. at 2050. The Supreme Court also directed the Court to identify the precise effects of prior segregation on minority student achievement so that it could tailor the remedy to the academic achievement injuries suffered. Along this line, the Supreme Court instructed the Court to “sharply limit, if not dispense with, its reliance on” student performance on test scores:
Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, so too will numerous factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure into the remedial calculus. Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own.
Id. at 101–02, 115 S.Ct. at 2055–56.
The Supreme Court reminded the Court that the “State and the KCMSD are entitled to a rather precise statement of their obligations under a desegregation decree,” id. at 101, 115 S.Ct. at 2055, and that “its end purpose is not only to remedy the violation to the extent practicable, but also to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Id. at 102, 115 S.Ct. at 2056. The “ultimate inquiry is whether the constitutional violator has complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination have been eliminated to the extent practicable.” Id. at 89, 115 S.Ct. at 2049 (quoting Board of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 250, 111 S.Ct. 630, 638, 112 L.Ed.2d 715 (1991)). As part of this inquiry, the Court must consider whether “retention of judicial control is necessary or practicable to achieve compliance with the [desegregation] decree.” Id. (quoting Freeman v. Pitts, 503 U.S. 467, 491, 112 S.Ct. 1430, 1446, 118 L.Ed.2d 108 (1992)).
3. The March 1997 Transition Order Following the dictates of Jenkins III, the Court conducted a three week hearing in January 1997. The purpose of the hearing was threefold: (1) to determine whether the State and KCMSD had eliminated the vestiges of prior segregation in the District; (2) if they had not, to identify the extent of the vestiges that still lingered; and (3) to give the State and KCMSD a precise statement of their obligations in the remedial effort to cure those remaining vestiges. Jenkins, 959 F.Supp. 1151, 1162 (W.D.Mo.1997). Prior to the January 1997 hearing, the KCMSD and the State of Missouri entered into a settlement agreement in which the State agreed to pay $320 million over a three-year period in exchange for a release from further liability. Id. at 1169. The Court approved the settlement agreement, finding that the State would fulfill its remedial obligations once it fully paid all sums due under the agreement. Id. at 1172.
Although the Court relieved the State from further liability under its desegregation decree, the Court also held that the *1062

KCMSD had not yet fulfilled its constitutional obligation to eliminate the vestiges of prior segregation to the extent practicable. Id. at 1165. Using student achievement scores on the Iowa Test of Basic Skills, the Court determined that an academic achievement gap existed between white and black students in the KCMSD of approximately ten normalized curve equivalents (“NCE’s”). Id. Moreover, the Court found that 26% of this achievement gap was caused by prior segregation in the form of a “race effect” and low teacher expectations of black students. Id. The Court’s finding translated into a mandate that the KCMSD do everything practicable to eliminate the academic achievement gap between black and white students by 2.6 NCE’s. Id.
The Court also found that the KCMSD had not yet achieved unitary status with regard to its racial isolation vestige. Id. at 1167. The Court observed that in the years prior to the Supreme Court’s decision in Jenkins III, white enrollment in the KCMSD had decreased at a lower rate than in previous years. Id. at 1165. Using the enrollment of white, non-resident students and a district-wide transportation plan, the KCMSD had successfully reduced the number of racially isolated schools. Id. The number of schools whose enrollments contained greater than 50% white students dropped from 17 schools in 1986 to zero schools in 1996. Likewise, the number of schools with enrollments greater than 90% minority dropped from 25 in 1986 to 16 in 1996. Id. Experts testified that the KCMSD had achieved a relatively high degree of racial balance by 1996 and that it would be counterproductive to mandatorily reassign students. Id. at 1166.
After Jenkins III ended the Court’s remedial plan of “desegregative attractiveness,” the KCMSD could no longer provide transportation for its non-resident students or maintain its expensive district-wide magnet system. Id. at 1166. Enrollment of white, non-resident students declined by 1476 students in 1995 and 1996. Id. at 1167. The Court found that it could not determine the full effects of the loss in white student enrollment on the KCMSD’s racial isolation vestige. Id. Because the burden rested on the State and the KCMSD to prove that the racial isolation vestige had been eliminated to the extent practicable, the Court held that the KCMSD had not yet achieved unitary status with respect to that vestige. The Court ordered the KCMSD to assess the ramifications of Jenkins III on student enrollment in the KCMSD. The Court indicated that, given the loss of white, non-resident enrollment and the necessity of a greatly reduced transportation budget, the KCMSD should attempt to achieve a substantial measure of racial balance in as many schools as possible. Id. at 1166–67.
The Court made one additional, relevant1 finding as to the KCMSD’s failure to achieve unitary status in March 1997: the capital improvement plan that began under the Court’s prior remedial program had not yet been completed. Id. at 1168. The Court estimated that these renovations could be finished by March 1999 and decided to withhold a declaration of unitary status as to the KCMSD’s facilities until that time. The Court ordered the KCMSD to finish its facilities upgrade within a two-year period. Id.
These three findings—(1) a 2.6 NCE gap caused by prior segregation, (2) an unknown racial imbalance due to the loss of non-resident white enrollment in 1995 and 1996, and (3) an incomplete facilities upgrade with two more years to completion —stood alone as the remaining vestiges of prior segregation in the KCMSD in March 1997. These three vestiges also embodied the whole of the Court’s modified *1063 remedial orders. While the Court ordered the KCMSD to achieve unitary status by eliminating the three vestiges enumerated above, it also acknowledged the Supreme Court’s directive that a voluntary desegregation effort need not actually eliminate all lingering vestiges of segregation so long as all practicable steps are taken in the effort to do so. Id. at 1155 (“No longer must the Court eliminate the vestiges of segregation ‘root and branch.’ Instead, the Court must only assess whether everything ‘practicable’ has been done to eliminate the vestiges of prior discrimination.” (internal citations omitted)). For this reason, the Court included in its modified remedial order several directives that should be placed in the category of “practicable steps.” The Court directed the KCMSD to file a plan that would guide its transition to unitary status and to modify its accounting methods so that actual expenditures could be reconciled with budgeted amounts. Id. at 1179. The Court believed these actions were necessary, not because they were directly tied to vestiges of prior segregation, but because they were necessary for an effective transition to unitary status. Id. at 1168.
4. The KCMSD’s Transition Plan and The Practicable Steps to Unitary Status The KCMSD filed its Transition Plan on schedule in August 1997. See KCMSD’s Plan for Transition to Unitary Status (August 15, 1997). Pursuant to the Court’s directives, the Transition Plan included a security plan for keeping District schools safe, announced modifications to the KCMSD’s accounting methodology, and listed the remaining projects to be completed under the court-ordered capital improvement program. See Transition Plan at 48–69. The Transition Plan laid out the KCMSD’s plans for restructuring to reduce expenses, including the reduction of central administration and consolidation of magnet themes. See Transition Plan at 70–118. The Plan also set forth the KCMSD’s strategy for implementing student

attendance zones to reduce transportation expenses and maintain a practicable racial balance in student enrollment. See Transition Plan at 82–83, 119–128.
With respect to the academic achievement vestige, the KCMSD identified five major factors that have contributed to the perpetuation of the 2.6–NCE gap caused by prior segregation: (1) low expectations by teachers; (2) lack of a core curriculum; (3) ineffective staff development; (4) the lack of a comprehensive assessment system; and (5) the absence of real accountability at all levels. See Transition Plan at 16–17. Having identified these problems, the KCMSD methodically set forth its principle objectives for reducing the academic achievement gap. The KCMSD proposed to implement a new curriculum that was more closely tied to student learning and performance by grade level. See Transition Plan at 21–22, 26– 28. The KCMSD announced new professional staff development efforts targeted at raising teacher expectations for urban learners, promoting learner-centered classroom practices, and emphasizing language and concept development with a strong focus on reading. See Transition Plan at 21–22, 28–46. The KCMSD also proposed implementing a comprehensive assessment and accountability system and a strategic instructional plan to tie all of these reform measures together. See Transition Plan at 21–25, 46–47.
Shortly after the KCMSD presented its Transition Plan to the Court, the Court appointed a new Desegregation Monitoring Committee (“DMC”) consisting of three professional educators. See Order [Doc. 4580] (August 21, 1997). The Court gave the DMC specific areas of responsibility for overseeing the KCMSD transition and carefully outlined the DMC’s role in that process. Pursuant to the Court’s charge, the DMC has closely monitored the KCMSD’s transitional progress, especially with respect to the academic achievement gap.
In four semi-annual reports to the Court, the DMC has consistently expressed *1064 its belief that the essential principles of the KCMSD Transition Plan are both practicable and necessary to eliminate the vestiges of discrimination. In its first report on April 15, 1998, the DMC stated that it
believes that if the KCMSD can implement its core curriculum[,] have quality instruction of the curriculum throughout the KCMSD[,] and implement a comprehensive instructional/management plan or a “Strategic Instructional Plan” as described in the Transition Plan, the KCMSD will achieve or promote the achievement of closing the academic achievement gap.
See DMC Report to the Court at 5 (April 15, 1998). Six months later, on October 14, 1998, the DMC noted that
The KCMSD is now entering its second academic year since the submission of the Transition Plan. That plan detailed the components that are necessary to meet the Court ordered goals. Specifically, essential components of the Transition Plan were designed to reduce the academic achievement gap by changing the KCMSD’s low expectations for its urban students; changing the KCMSD uneven quality of instruction; and changing the KCMSD’s fragmented and uncoordinated professional staff development, assessment and accountability.
See DMC Report to the Court at 7–8 (October 14, 1998). Finally, in the DMC’s last report to the Court, it agreed with “Plaintiffs” counsel that if the KCMSD could make “huge strides” towards implementing the curriculum, classroom practices, professional development, accountability, and assessment [components set forth in the Transition Plan], then the KCMSD would have done everything practicable to close the academic achievement gap between black and white students by 2.6 [NCE’s] and might be declared unitary. See DMC Report to the Court at 1–2 (October 22, 1999).
The Court has relied on the expertise of its DMC and the professional experience of those persons who developed the KCMSD’s Transition Plan to hold that implementation of the principles set forth in that Plan would constitute the practicable steps necessary for unitary status. See e.g. Order at 2 [Doc. # 4772] (June 17, 1999). Thus, the Court has directed the KCMSD that in its effort to close the achievement gap and maintain an appropriate racial balance, the KCMSD should focus on these practicable steps: (1) a realistic budget that can be reconciled with actual expenditures; (2) a completed facilities upgrade; (3) a fully implemented curriculum reflected in classroom instruction; (4) a professional development plan; (5) an assessment plan; and (6) an accountability plan. Id.
At different times in the last two years, the KCMSD, Plaintiffs, American Federation of Teachers (“AFT”), and DMC have told the Court about other issues that they believe should be addressed by the KCMSD. These issues range from the need for more effective leadership in the KCMSD, to recruitment of teachers and other certificated personnel, to planning for the effects of charter schools. See e.g. DMC Reports to the Court (October 14, 1998; April 15, 1999; October 22, 1999). The

Court has encouraged the parties and DMC to address these issues, and even issued Orders regarding these matters. See e.g. Order [Doc. # 4738] (October 23, 1998); Order [Doc. # 4772] (June 17, 1999). Leadership, recruitment, and effective planning are critical issues for any organization that is attempting to achieve lofty goals. These matters are part of the remedial calculus, however, only to the extent that they affect the KCMSD’s efforts to take all practicable steps toward eliminating the vestiges of prior segregation. See e.g. Order at 3 [Doc. 4772] (June 17, 1999) (“[A]n uncompromised leader with intelligence, common-sense, managerial experience, and personal integrity can begin to achieve all of these [practicable steps] quickly and adeptly.”).
*1065 5. The Creation of Charter Schools In addition to operating under its Transition Plan principles and the Court’s remedial directives, the KCMSD has been affected by several actions of the former State Defendants that are (technically) unrelated to this case. The first such notable action involves the State’s passage and implementation of charter schools legislation. Passed in June 1998, Senate Bill 781 included provisions allowing for the creation of charter schools—“independent, publicly supported school[s].” Mo.Rev.Stat. § 160.400 (Supp.1998); 1999 Mo. Legis. Serv., S.B. 781 (West 1999). Charter schools may only operate in St. Louis and Kansas City. These schools can only be created through the sponsorship of the local school district, a four-year college or university located in the district or in an adjacent county, or a community college located in the district. One out of every three charter schools that a sponsor supports must actively recruit and focus on the needs of dropouts and high-risk students. Id.
Charter schools are exempt from all school laws, except that they must be non-sectarian and comply with health, safety and minimum educational standards. Charter schools also must admit any student without regard to race, ethnicity, national origin, disability, gender, income level, language proficiency or athletic ability. Charter schools do not participate in the state accreditation process and are not subject to classification by the State Board. Id. Neither the local school board nor the State Board has the authority to deny an approved charter except on the grounds that its application does not meet the statutory requirements. Once a charter school is approved for sponsorship, it may begin enrolling students residing in the district where it is located. The charter school’s pupils are then counted in the school district’s enrollment numbers for the purpose of collecting state aid. Id. The school district must pay each charter school an amount based on the total enrollment of the charter school multiplied by the tuition for each charter school student, multiplied by the projected daily attendance of those students. See Testimony of Bonnie McKelvy, Transcript at 134 (November 1, 1999).
Fifteen charter schools have opened in the KCMSD during the 1999–2000 school year. See Testimony of Bonnie McKelvy, Transcript at 133. These fifteen charter schools have enrolled 4,354 students, 3,072 of which are former KCMSD students. Id. at 134. Based on this enrollment figure, the KCMSD will have to pay an estimated $23.8 million to the charter schools within its boundaries in fiscal year 2000. Id. at 140; KCMSD Exhibit 6 (November 1, 1999). The KCMSD will not be able to reduce expenditures by that same amount, however, and anticipates an operating deficit for fiscal year 2000 of $3.4 million.
Two additional charter schools within the KCMSD’s boundaries received sponsorship prior to the State Board’s decision to designate the KCMSD as unaccredited. Id. at 135–36. These two schools are likely to enroll approximately 480 pupils total for the 2000–2001 school year. Witnesses for the KCMSD fear that the State Board’s decision to designate the District as unaccredited will prompt an increased rate of charter school applications and enrollment, perhaps by as much as 50 percent. Id. at 147. KCMSD Chief of Staff Cheryl Shannon testified that she believed as many as ten new applicants are seeking sponsorship for charter schools, less than one month after the State Board’s decision. See Testimony of Cheryl Shannon, Transcript at 72–73 (November 1, 1999). The KCMSD submitted into evidence a flyer that was recently posted at Lincoln College Preparatory Academy, the District’s premiere academic high school, soliciting interest in creating a college preparatory charter school. See KCMSD Exhibit 1 (November 1, 1999). The KCMSD claims that if charter school enrollment increases, its projected deficit also will grow. See Testimony of Bonnie McKelvy, Transcript at 142. The District argues that its only method for reducing *1066 expenditures in line with charter school payments will be to restructure—closing and consolidating schools for greater savings. Id. at 148. Because significant restructuring is thought to disrupt educational progress, the KCMSD argues that the State’s enactment of charter school legislation further increases the damaging effect of an unaccredited designation on the KCMSD.2
6. The Accreditation Process and the State Board’s Decision to Designate the KCMSD as Unaccredited The state action that ultimately led to the pending motion is the development and implementation of the Missouri School

Improvement Program (“MSIP”) review process. DESE developed the MSIP process in 1989 to establish a mechanism by which it could evaluate and classify school districts. See Testimony of Marilou Joyner, Transcript at 249–51 (November 1, 1999). Under the MSIP program, DESE evaluates each school district on the basis of resource, process, and performance standards. See Missouri School Improvement Program Standards and Indicators Manual at 2–3 (visited March 3, 1999)< http:// services.dese.state.mo.us /divschsvs/supervision/standards/> (hereinafter cited as “Standards and Indicators Manual”). Districts that do not meet a minimum number of the required standards are designated as “unaccredited” and face sanctions imposed by statute and state regulation. See Testimony of Marilou Joyner, Transcript at 250–51 (November 1, 1999). DESE believes that the initiation of sanctions operates as an incentive for unaccredited school districts to perform to higher standards. Compare id. at 251 (“the districts that were unaccredited (under the old system) typically remained unaccredited year after year.”) with id. at 256 (“we currently have no district unaccredited at this time, so they have all been able to recover at least provisional accreditation” (under the new system).) with id. at 261 (“My experience with that is, again, that the initial [unaccredited] designation is a real shock to the system, but I believe that once it is accepted ... that’s when you can get people motivated.”).
Under the MSIP program, DESE reviews the State’s school districts every five years. The KCMSD underwent its first-cycle review in 1993 and received a “provisionally accredited” designation. Id. at 265. It was scheduled for another MSIP review in January 1998, until DESE, under the leadership of the Dr. Robert Bartman, the Commissioner of Education, decided to postpone the KCMSD’s regularly-scheduled MSIP review. See State’s Exhibit 2, “Memorandum from Marilou Joyner to Commissioner Bartman” (April 7, 1997). DESE’s decision to postpone the KCMSD’s review was prompted by this Court’s March 1997 Order. In that Order, the Court asked Dr. Bartman and DESE to guide and oversee the KCMSD during its transition to unitary status. See Jenkins, 959 F.Supp. 1151, 1178–79 (W.D.Mo.1997). Dr. Bartman responded to the Court’s request in a letter dated April 16, 1997. Dr. Bartman’s letter indicated that
[b]ecause of the complicated issues involved in the transition period and the time commitment which would be required to be successful, I would not be able to provide the day-to-day guidance implied from the Court order.... As I have stated earlier, I and our department stand ready, willing, and able to offer ... any technical assistance we can provide.
*1067 See Letter of Dr. Robert Bartman as read into Evidence, Transcript at 38 (April 17, 1997). To help fulfill his commitment to the Court, Dr. Bartman decided to postpone the KCMSD’s regularly-scheduled MSIP review, which DESE believed was likely to show that the KCMSD did not qualify for accreditation. See State’s Exhibit 2, “Memorandum from Marilou Joyner to Commissioner Bartman” (April 7, 1997). Instead, Dr. Bartman offered to conduct a “technical assistance review” for the KCMSD. Id. This technical assistance review would help the District identify effective instructional practices as well as its needs and concerns. Id.
DESE conducted its technical assistance review of the KCMSD in December 1997. See State’s Exhibit 3, Technical Assistance Report (January 28, 1998). DESE summarized its findings as follows:
The district continues to have significant problems in the area of student performance. Only one of the 12 performance indicators is met at this time. To that end, it is imperative that the KCMSD nurture a process by which all efforts in the district are focused on changing and improving all aspects of performance of the students in the district.
At this time, the district does not have a single, districtwide school improvement plan with measurable performance objectives which guides the overall improvement of student performance. Positive, districtwide improvement will occur only if there is a strong linkage between the district’s planning efforts and the building-level planning efforts. Currently, there is no coordinated, formalized effort to review and evaluate programs and services in the district. Information obtained from such a comprehensive evaluation of programs and services within the district could prove invaluable in the development of a comprehensive improvement plan for the district and the buildings.
In developing the district’s overall plan, careful attention should be given to linking curriculum with instruction, and instruction to professional development. Although the KCMSD offers a wide array of professional development activities, the district should give careful consideration to ensuring that professional development activities transcend activities at the awareness level to a skills development competency and implementation level. Professional development activities should be systematically focused on improved and varied instructional strategies to meet the educational needs of the students within the district.
In a related matter, the district should consider developing within the comprehensive plan a method by which building leadership can remain consistent over a period of time. The frequent turnover of building leadership, as well as central

office leadership, serves as a barrier to the implementation of plans and improvement of student performance.
Id. at 48.
A little over one year after DESE’s technical assistance review, DESE conducted its formal MSIP review of the KCMSD. See KCMSD Exhibit 4. The findings from this review were presented to the State Board for accreditation purposes. See Testimony of Marilou Joyner, Transcript at 276 (November 1, 1999). DESE found that the KCMSD passed all the MSIP resource and process requirements, but failed to meet any of DESE’s eleven performance standards. See KCMSD Exhibit 4 at 72.
The first three MSIP performance indicators measure general academic achievement. See Standards and Indicators Manual, § 16.1 at 28. DESE compiles student scores on the Missouri Assessment Program (“MAP”) tests for two consecutive years. Id. The MAP tests cover math, communication arts, and science in grades 3–5, 6–8, and 9–11. See KCMSD Exhibit 4 at 67–68. DESE rank the students’ scores and places them in four different scoring levels. See Standards and Indicators Manual, § 16.1 at 28–29. DESE then compares the percent of students in each scoring level between the two consecutive *1068 years. Id. In the MSIP review of the KCMSD, DESE found that the District had high percentages of students in the lowest two scoring levels and little improvement between 1998 and 1999. See KCMSD Exhibit 4 at 67–68. The KCMSD received two out of 36 possible points on DESE’s scoring rubric for these three performance indicators. See KCMSD Exhibit 2 (November 1, 1999). Twenty-four points (eight points on each standard) were required to meet DESE’s performance standards. Id. Consequently, DESE reported that the KCMSD failed to meet its three general achievement performance standards. See KCMSD Exhibit 4 at 72.
DESE’s fourth and fifth performance indicators measure the reading achievement of third and seventh or eighth grade students to determine if those students are reading at an acceptable level. See Standards and Indicators Manual, § 16.2 at 29. Based on an analysis of the MAP reading assessment, DESE found the KCMSD had low percentages of third and seventh grade students who were reading at an acceptable level or who significantly improved between 1998 and 1999. See KCMSD Exhibit 4 at 69. DESE reported that the KCMSD failed to meet its two reading achievement performance standards. Id. at 72.
The sixth, seventh, eighth, and ninth performance indicators measure a school district’s success at preparing its students for post-secondary education and/or employment. See Standards and Indicators Manual, § 16.3 at 29. DESE measures the percent of graduates scoring at or above the national average on the ACT or SAT (sixth performance standard); the percent of graduates that earn a college preparatory studies certificate, earn college credit while in high school or receive a score of three or higher on an Advanced Placement Test (seventh performance standard); the percent of graduates who complete vocational education programs approved by DESE (eighth performance standard); and the percent of graduates who complete vocational education programs approved by the Department of Elementary and Secondary Education and are placed in occupations relating to their training, continue their education or are in the military services (ninth performance standard). Id. In its review of the KCMSD, DESE found a small but slightly improved percentage of KCMSD graduates scoring above the national average on the ACT or SAT, a small but improving percentage of credits earned in advanced classes, a low percentage of vocational completers, and an average percentage of vocational completers who were subsequently placed in relevant occupations, continued education, or military service. See KCMSD Exhibit 4 at 69–70. The KCMSD only earned fifteen of 48 possible points on DESE’s scoring rubric for career preparation. See KCMSD Exhibit 3. Thirty-six points were required to pass DESE’s performance standards in this area. Id. DESE reported that the KCMSD failed to meet its career preparation performance standards. See KCMSD Exhibit 4.
The last two performance indicators measure a school district’s ability to keep its pupils in school. See Standards and Indicators Manual, § 17.1 at 29–30. DESE examines the percent of students who drop out of school between ninth and twelfth grades, as well as the percent of students who are in regular daily attendance. Id. The KCMSD had a relatively high and increasing dropout rate (from 9.07% in 1998 to 11.86% in 1999) and a relatively low daily attendance rate (from 87.68% in 1997 to 86.52% in 1998). See KCMSD Exhibit 4 at 71. The KCMSD failed to earn any points out of 24 possible on DESE’s scoring rubric for educational persistence. See KCMSD Exhibit 3. Eighteen points were required. Id. Consequently, DESE reported that the KCMSD failed to meet its educational persistence performance standards. See KCMSD Exhibit 4 at 72.
Acting upon DESE’s findings and its statutory authority, see Mo.Rev.Stat. § 161.092(9), the State Board voted on October *1069 21, 1999 to reduce the KCMSD’s classification from “provisionally accredited” to “unaccredited.” Missouri law prescribes a number of consequences for unaccredited school districts. Students in an unaccredited school district may choose to attend an accredited district, subject to their ability to enroll there, in the same or an adjoining county. See Mo.Rev.Stat. §

167.131; 5 C.S.R. 50–340.010(1)(A)(5). The unaccredited district must notify its students and the parents of its students of their transfer rights. The unaccredited district must also pay tuition for the transferring students and the costs of their transportation to schools in the accredited district. Id. DESE must hold a public hearing in the unaccredited district to review the District’s plans for regaining accredited status or to offer any technical assistance it can provide. Mo.Rev.Stat. § 162.081. In the KCMSD, and in other school districts where the board of education does not anticipate a return to accredited status, the State Board may appoint a special administrative board to run the district. Id. If the unaccredited district cannot regain accreditation within two successive school years, its corporate organization will lapse under state law. Id. Before the unaccredited district lapses, its governing body must submit a plan to the district’s voters to divide the district if it cannot regain accreditation within three years. Id. After lapse, the State Board may appoint a special administrative board to replace the local school board, attach the territory of the lapsed district to other districts, or establish one or more districts within the territory of the lapsed district. Id.
In addition to the statutory consequences of an unaccredited designation, the KCMSD contends that unaccredited status carries indirect consequences that can be just as significant. The KCMSD argues that it will be more difficult to recruit and keep qualified personnel. Tenured teachers at retirement age may simply choose to retire instead of teaching in a failed district, while young, non-tenured teachers may leave for fear they will not be able to serve the full five years required for tenure. The KCMSD also argues that academically motivated students will leave for fear of the District’s unaccredited designation on their chances to get into college. The loss of achieving students will hurt the KCMSD’s test scores as well as the academic environment of the District’s classrooms. Essentially, the KCMSD contends that these indirect effects make recovery from an unaccredited designation nearly impossible to achieve.
7. The KCMSD’s Current Transition Status Notwithstanding DESE’s findings of poor academic performance in the KCMSD, the Court believes that the District has made significant progress toward its transition goals and the Court’s remedial targets. For instance, the school consolidations and budget reductions necessitated by the Supreme Court’s decision in Jenkins III have now been completed. The ramifications of that decision on the KCMSD’s racial balance can easily be determined. Unfortunately, the number of racially isolated schools with over 90% minority enrollment has increased from 16 to 27. See KCMSD Student Census Counts (September 25, 1996; January 29, 1997; September 24, 1997; January 28, 1998; September 30, 1998; January 27, 1999). While these figures are certainly not optimal, they are extremely positive for two reasons. First, the overall percentage of minority students in the KCMSD has increased from 73.5% in 1986, when there were 25 schools with greater than 90% minority enrollment, to 81.8% in January 1999. See State’s Exhibit 3a (Unitary Status Hearing, January 1997); KCMSD Student Census Counts (September 25, 1996; January 29, 1997; September 24, 1997; January 28, 1998; September 30, 1998; January 27, 1999). Considering this 8.3% increase in overall minority enrollment, an increase of only two schools with greater than 90% enrollment can be considered a positive factor.
*1070 Second, the increased number of KCMSD schools with over 90% minority enrollment is positive in light of the massive reduction in district-wide student transportation necessitated by the Supreme Court’s decision in Jenkins III. After 1997, the KCMSD was forced to close multiple schools and create a transportation plan centered around attendance zones. See Transition Plan at 82–83. The creation of attendance zones necessarily led to increased racial imbalance because of demographic conditions in the KCMSD—conditions unrelated to prior de jure segregation and far beyond the control of District officials. Cf. Jenkins III, 515 U.S. at 91, 115 S.Ct. at 2050 (rejecting, again, the suggestion that “schools which have a majority of [African–American] students are not ‘desegregated’ whatever the racial makeup of the school district’s population and however neutrally the district lines have been drawn and administered.”). Even with the construction of a few new schools, the redistribution of students from Border Star, Faxon Annex, Greenwood, Holmes, Bingham, Metro Tech, and Southwest was certain to increase the percentage of minorities in the District’s other schools. With the overall percentage increase in minority enrollment, and the redistribution of students made necessary by transition period budget reductions, the KCMSD can be credited with a careful, well-conceived attendance zone and inter-district magnet plan that has maintained racial balance within the District’s schools to the extent practicable.
The KCMSD also appears to have substantially completed the essential components of the court-ordered capital improvement program. The KCMSD has completed work on all of the construction and renovation projects it outlined in its Transition Plan and all but two of the demolition projects announced there. See Transition Plan at 64. In addition, the KCMSD has effectively reconfigured its schools to establish comprehensive schools and consolidate magnet schools in line with the Transition Plan and the Stipulation and Agreement filed on April 21, 1998. See Transition Plan at 65–68; Stipulation and Agreement [Doc. # 4698] (April 21, 1998). Finally, the KCMSD has developed new long and short-range plans for further maintenance, renovation, and/or replacement of its facilities. See KCMSD Exhibit 4 at 61.

With respect to the KCMSD’s efforts at closing the academic achievement gap, the Court notes that the KCMSD has developed sound educational policies consistent with the Court’s remedial orders. The KCMSD submitted its Professional Development, Assessment and Accountability Plans to the Court last Spring. See KCMSD Motion for Approval of Plans [Doc. # 4761] (January 29, 1999) (submitting plans with motion for approval); KCMSD Updated Accountability Plan [Doc. # 4765] (April 15, 1999). In these plans, the KCMSD reaffirmed its commitment to:
(1) deliver a high quality curriculum that describes what students should know and be able to do;
(2) demonstrate high expectations for achievement through effective instructional practices;
(3) use district and state assessments that measure the level to which students are able to demonstrate the standards identified in the Core Curriculum and [Missouri’s] Show–Me–Standards;
(4) implement an accountability process that provides specific data to assist policy makers and school leaders in making informed on-going decisions to increase student learning ...; and
(5) provide relevant and effective professional development that addresses the obstacles to raising student achievement [and also] provides on-going support to educators in administration of assessments, interpretation of test data, and appropriate instructional strategies based on test results.
See KCMSD Motion for Approval of Plans [Doc. # 4761], Exhibit A at 1–2 (January 29, 1999). The DMC reviewed and approved *1071 the KCMSD’s instructional plans prior to their approval by the Court.
Recently, the DMC noted that the new Superintendent of Schools, Benjamin Demps Jr., was already “moving forward to implement the core curriculum, classroom practices, professional development, accountability, and assessment [plans].” See DMC Report to the Court at 2 (October 22, 1999). Moreover, in the KCMSD’s MSIP review, DESE found that
[T]he district has recently developed and implemented a Core Curriculum for grades K–12 and has focused professional development activities and instructional evaluations on the implementation of this curriculum. This new curriculum represents a significant improvement for the district, and interviews indicate this improvement has been recognized by the staff.
See KCMSD Exhibit 4 at 18. The State also noted “multicultural concepts and practices” in the KCMSD schools, including “professional development workshops on non-biased practices [and] equity awareness,” “specific units of instruction related to equity topics or equity representation,” “written equity criteria related to selection of instructional and LMC resources,” [and] “essential and supplemental learning materials reflect social and cultural diversity.” See KCMSD Exhibit 4 at 26.
While the above observations highlight some of the KCMSD’s successful efforts toward elimination of the academic achievement gap, the Court also recognizes that the KCMSD’s transition efforts have not always proceeded smoothly. Although the KCMSD filed its Transition Plan in August 1997, the parties continued to negotiate and litigate changes in the District’s restructuring plans until April 1998. See e.g. Stipulation and Agreement [Doc. # 4698] (April 21, 1998). The KCMSD was deplorably late in developing the professional development, assessment and accountability plans contemplated in its Transition Plan. In fact, the Court frequently had to set and extend deadlines for the submission of those plans. See e.g. Order [Doc. # 4757] (January 11, 1999). The Court noted that the delayed submission of those plans was not the KCMSD’s fault alone, but could also be attributed to the unfortunate need to involve many opposing interests as a result of this case. Id.
Other examples of the KCMSD’s intermittent transitional progress can be found in DESE’s Final Report from its 1999 MSIP Review. DESE observed that “[s]cope and sequence sections identified in the Core Curriculum guides were very abbreviated and consisted primarily of content strands.... Assessments and instructional strategies ... were not included in the written curriculum guides.... teachers’ curriculum guides do not include [the Show–Me] cross references.” See KCMSD Exhibit 4 at 16. This observation clearly pertains to the District’s implementation of the Core Curriculum. DESE also observed that “dissemination of building test results varies widely within the district” and “that the degree to which current technology is available and is integrated with instruction varies widely among buildings in the district.” Id. at 27. This observation pertains to the KCMSD’s implementation of uniform instructional practices for student achievement.
While it is clear that the KCMSD’s transitional progress has been inconsistent, the DMC has reported to the Court that much

of the KCMSD’s faltering can be attributed to the absence of talented personnel in the District. In its October 14, 1998 report, the DMC presented a number of areas within the KCMSD that, in the DMC’s opinion, “have impeded the implementation of the Court ordered goal in regards to academic achievement.” See DMC Report to the Court at 3 (October 14, 1998). The DMC report focused primarily on the lack of “administrative talent” within the KCMSD. See id. at 5. The DMC noted that Superintendent of Schools Henry Williams, who left the District shortly after the DMC’s report, had a “cultural deficit perspective” that fostered *1072 low expectations for urban students. Id. at 7. The DMC observed that “the KCMSD did not appear to have the necessary leadership to produce a [professional staff development] plan that has been agreed to by all the parties.” Id. at 10. The DMC’s report also set out a number of examples of ineffective “decision-making by the Superintendent and his staff [that] has been shortsighted and reactive in nature.” Id. at 12–19.
The DMC’s April 15, 1999 Report to the Court voiced many of the same concerns. The DMC stated its general belief that the “lack of progress made by the KCMSD is related to the lack of adequate talent to secure results.” See DMC Report to the Court at 1 (April 15, 1999). The DMC noted the KCMSD’s deficiencies in recruiting teachers for the 1998–99 school year and that the KCMSD was doing only slightly better in recruiting for 1999–2000. Id. at 5. The DMC reiterated its belief “that the selection of personnel is the future of the KCMSD,” id. at 9, and that “even the best articulated plans, including a professional development plan, will not save the KCMSD without talented personnel to carry them out.” Id. at 12. DESE’s observations support those of the DMC:
“The instability of top-level administrative positions, the frequent movement of building administrators, frequent program changes, and a lack of clarity about student performance expectations contribute to the district’s inability to realize high student achievement. A concern related to the high turnover of central office and building administrators and the effect these turnovers have on the continuity of district programs was cited in the district’s first-cycle MSIP report.”
See KCMSD Exhibit 4 at 16.
The KCMSD has recently turned a corner on its personnel problems. After a long but successful search, the KCMSD hired a new Superintendent of Schools on July 19, 1999. Having been identified as a highly qualified candidate by the DMC and thoroughly investigated by the Board of Education, Benjamin Demps Jr. offers the kind of intellectual capacity, administrative background, personal integrity, and leadership ability that the KCMSD needs to overcome its administrative problems. Superintendent Demps provides the KCMSD with its best and only chance for changing the District’s culture and raising the performance of its students.
Since coming into office on August 1, 1999, Superintendent Demps has proven that he is properly focused, highly motivated, and effective. At a hearing on August 24, 1999, the Superintendent reminded the Court that his focus was on the children of the District—the most essential topic and one that unfortunately is almost never discussed among the “weighted matters” of the courtroom. See Transcript at 34 [Doc. # 4784] (August 24, 1999). Demps’ presence has already brought successful changes to the District. The KCMSD started the 1999–2000 school year with a lower number of teacher vacancies than it has had in the past five years. See Testimony of Benjamin Demps, Transcript at 192 (November 1, 1999). Although Superintendent Demps credits hard-working staff that would only accept quality applicants, id., there is no doubt that his presence in the KCMSD has motivated existing personnel to new levels.
In addition to the renewed spirit and motivation that Superintendent Demps brings to the KCMSD, Demps has hired dedicated and hard-working personnel to assist him in lifting the KCMSD out of its woes. Superintendent Demps’ Chief of Staff greatly impressed the Court with her knowledge and passion for improvement in the District. Ms. Cheryl Lynn Shannon has worked six and seven days a week since coming to the KCMSD, often for ten and twelve hours a day. See Testimony of Benjamin Demps, Transcript at 194 (November 1, 1999). She has covered operations in the KCMSD’s Human Resources Department in the absence of an HR Director, facilitated professional development *1073 in the absence of a professional development director, and managed the District’s curriculum and instruction department in the absence of a deputy superintendent. See Testimony of Cheryl Shannon, Transcript at 64–65 (November 1, 1999). The DMC has noted that Superintendent Demps and Ms. Shannon have been “moving forward to implement the core curriculum, classroom practices, professional development, accountability, and assessment [components of the Transition Plan].” See DMC Report to the Court at 2 (October 22, 1999). While the KCMSD obviously needs more competent people to follow the lead of Superintendent Demps and Ms. Shannon, the Court is convinced that their leadership will help move the District to higher levels of performance and achievement.
The DMC also has pointed to problems with the School Board for the KCMSD to explain some of the District’s slow

progress toward unitary status. In its April 1999 Report to the Court, the DMC noted that “a clear set of the Board’s goals has not been forthcoming.” Id. at 9. The DMC also observed “that it is unclear whether the Board as a unit believes that personnel recruitment and/or employment of personnel, including the Superintendent, should be its number one priority.” Id. at 12. The DMC expressed its concern that “the Board and the KCMSD are often driven by public relations and not a careful review of the data, facts, and evidence.” Id. at 15. The DMC’s most recent report to the Court focused on inappropriate interference by the Board with Superintendent Demps’ administration of the District. See DMC Report to the Court (October 22, 1999).
Actions by the School Board have long been a concern for the Court and a problem in this case. In March 1997, the Court noted that “[a]lready low achievement scores have fallen in the last year or two and the debacles of the School Board have provided near constant fodder for the news media.” See Jenkins, 959 F.Supp. 1151, 1178 (W.D.Mo.1997). Less than one month later, on April 17, 1997, Dr. Bartman, Commissioner of Education for the State of Missouri, testified that the
[t]he history of this, the Board of Education in the Kansas City District has a history of politics before students. I believe that they have taken their eye off the student along the way and have not tended to the business of policy. I think, frankly, that the methodology that they elect boards in the Kansas City area is one which lends itself more to that kind of activity than in other district in the state, where they elect all board members at large. This Board is relatively new as a board ... and whether they can rise above the politics that has, in my judgment, guided the District’s decision-making over the last many years has [sic], I think, part of the jury is out on that particular issue.
See Testimony of Dr. Robert Bartman, Transcript at 89–90 [Doc. # 4497] (April 17, 1997). While the DMC’s Reports to the Court have confirmed that the “relatively new Board” still places politics before students, the Court believes that this political influence is weakening. DESE’s most recent findings support the Court’s observation:
Interviews indicate that many staff members feel the Board of Education members have an improved understanding of their role as policymakers and are exercising more restraint in becoming involved in administrative duties; however, these same staff members believe more improvement is needed in this area.
See KCMSD Exhibit 4 at 60.
Having reviewed the background and essential facts outlined above, the Court can proceed to the merits of the KCMSD’s pending motion.
B. Discussion [1] The KCMSD has moved this Court for an Order declaring void ab initio the State’s Board’s decision to designate the District as unaccredited. The KCMSD’s motion seeks an extraordinary equitable *1074 remedy. “Although the remedial powers of an equity court must be adequate to the task, they are not unlimited, and one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions.” See Missouri v. Jenkins, 495 U.S. 33, 51, 110 S.Ct. 1651, 1663, 109 L.Ed.2d 31 (1990) (Jenkins II ) (internal quotations and citations omitted). Before attempting to exercise such broad remedial power, the Court must assure itself that the relief sought is absolutely necessary, and that no permissible alternative is available. See e.g. id.
This case has had its share of extraordinary equitable remedies. In 1986, the Court ordered the implementation of an ambitious desegregation plan that far exceeded the scope of its remedial powers. Jenkins III, 515 U.S. 70, 94, 115 S.Ct. 2038, 2052, 132 L.Ed.2d 63 (1995). In 1987, the Court imposed a tax increase to pay for its remedial plan, Jenkins, 672 F.Supp. 400, 412 (W.D.Mo.1987), once again exceeding the scope of its constitutional authority. See Jenkins II, 495 U.S. at 52, 110 S.Ct. at 1663. The Court’s previous exercises of its “broad” equitable power have led this case to the United States Supreme Court two out of three times. Meanwhile, the Court-ordered desegregation plan has cost the State and the KCMSD over $2 billion. See e.g. Jenkins, 959 F.Supp. 1151, 1154 (W.D.Mo.1997).
Despite the expenditure of vast sums, the prolonged oversight of a federal court and its appointees, the efforts of multiple parties, and the passage of forty years since the end of official, de jure segregation in Kansas City, Missouri, the KCMSD still struggles to provide an adequate education to its pupils. As was said in another context, “[t]he very complexity of the problems of ... managing a ... public school system suggests that ‘there will be more than one constitutionally permissible

method of solving them,’ and that ... ‘the legislature’s efforts to tackle the problems’ should be entitled to respect.” San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973) (quoting Jefferson v. Hackney, 406 U.S. 535, 546–47, 92 S.Ct. 1724, 1731–32, 32 L.Ed.2d 285 (1972)). No person involved in this case can deny the complexity of urban education. Neither the Court nor the current parties to this case have “cornered the market” on urban education policy. The State Board’s accreditation decision reflects conscious, race-neutral policy choices made by the state legislature and by state education experts at DESE. These policy choices are entitled to respect. As Plaintiffs’ counsel Arthur Benson noted in April 1997:
the Department of Elementary and Secondary Education ... has a vision, and it uses that word, it has a vision, about how education should most effectively be organized so that teaching and learning can occur in school, so that all children can learn to high standards. And by high standards, we mean minimums. The phrase “high standards” means raising the hurdle over which all children should be able to jump before they finish school. That’s a high standards education, in which the minimum education is at a high enough level that we all believe that the graduates are capable of holding a family supporting job, participating meaningfully in democracy, and fulfilling the[ir] responsibilities. DESE has a vision as to how that hurdle should be raised to high standards in a manner in which all kids, every child, can pass over that hurdle. DESE has that vision.
See Comments of Arthur Benson, Transcript at 76 (April 17, 1997).
[2] While DESE’s and the State Board’s accreditation process is entitled to respect, “[b]y no means should a district court grant [state or] local government[s] carte blanche.” see Jenkins II, 495 U.S. at 52, 110 S.Ct. at 1663 (citing Swann v. Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)). “[I]f a state-imposed limitation on a school authority’s discretion operates to inhibit or obstruct the operation of a unitary *1075 school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees.” North Carolina Bd. of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971). The instant case, however, does not present such a situation.
[3] The standards used by DESE and the State Board to determine that the KCMSD should be designated as unaccredited do not conflict with this Court’s remedial orders. In fact, the two are fully consistent with each other. Just as DESE requires a “Comprehensive School Improvement Plan” to “guide the district in decision-making about the Resource and Process Standards that should lead to higher student performance,” the Court has sought a “comprehensive, integrated educational and instructional plan,” and required the KCMSD to develop a “long-range plan” of the same nature. Compare Standards and Indicators Manual at 3, with Jenkins, 959 F.Supp. at 1173, and Order at 2 [Doc. # 4378] (October 23, 1998). Where DESE suggested the need for a “single, districtwide school improvement plan with measurable performance objectives which guides the overall improvement of student performance,” the Court’s long-range planning requirements included a “list of concrete objectives that conform to the KCMSD’s educational philosophy [and a] cohesive strategy for achieving those objectives that links curriculum, instruction, staff development, personnel and student assessment, and accountability.” Compare State’s Exhibit 3, “Technical Assistance Report” at 48 (January 28, 1998), with Order at 2 [Doc. # 4378] (October 23, 1998).
The Court’s directive that the KCMSD fully implement its core curriculum as reflected in instructional practices is fully consistent with DESE’s curriculum standards. See Standards and Indicators Manual, § 6 at 9–10. Similarly, the court-ordered focus on effective instruction, professional staff development, assessment, and accountability is mirrored in most of DESE’s process standards. See id., §§ 7–12 at 10–21. Of particular relevance is DESE’s requirement that the School Board for the KCMSD must annually review performance data based on race/ethnicity to effectively monitor student progress and, if significant differences exist among various racial and ethnic groups, the District must use this information to adjust its curriculum and instructional programs. See id., § 7.2 at 11. The KCMSD’s Professional Development Plan satisfies both the Court’s requirements and DESE’s professional development requirements. See id., § 12.1(3) at 20. Likewise, the KCMSD’s Assessment Plan closely follows MSIP guidelines. See id., § 7.2 at 11.
Looking at the MSIP performance standards, the Court finds similar correlations to the desegregation remedy. Even during this transition phase since 1997, the Court, DMC, and parties have focused on improving the general academic achievement of the District. DESE’s performance standards measure just that—student academic achievement. The MSIP review process analyzes student achievement in Math, Communication Arts, and Science (performance indicators for Social Studies may become available at a later date). Student achievement in these areas is equally important to the Court’s review of the academic achievement gap.3 A narrow view of student academic achievement might exclude assessments of career

preparation, vocational education, *1076 and educational persistence. The Court is not inclined to adopt such a narrow view, however, and believes, as the State Board evidently does, that all of these indicators tie closely together. The Court believes that if the KCMSD improved its ability to keep its students in school on a daily basis, those students’ overall academic achievement also would improve. Cf. Testimony of Marilou Joyner, Transcript at 283 (November 1, 1999). Similarly, the Court believes that increased reading achievement through more effective instruction would enhance students’ career preparation and educational persistence. Cf. id. Most importantly, the Court believes that compliance with MSIP guidelines will help eliminate the 2.6–NCE academic achievement gap. Cf. id. at 283–84.
Not only are the State Board’s accreditation standards fully consistent with the Court’s remedial orders, the State Board’s decision to designate the KCMSD as unaccredited is also consistent with the Court’s (and parties’) desegregation efforts. The very purpose of the State Board’s accreditation process is to infuse accountability into its school districts’ educational efforts. See Testimony of Marilou Joyner, Transcript at 251 (November 1, 1999). National education experts advocate the use of accountability at all levels to improve educational performance. See e.g. John M. Goff, A More Comprehensive Accountability Model, Council for Basic Education (visited October 26, 1996) < http://www.c-b-e.org/articles/goff.htm > (“The individual school as the focal point of accountability is as it should be. This is where the ‘rubber meets the road’ in the delivery of education to our nation’s children. To make such demands however, when key stakeholders, including local board members, parents, superintendents and district staff, state agency staff, state board members, teacher preparation institutions, and other policy makers are not carrying out their responsibilities creates conditions that are neither fair nor reasonable.”). Plaintiffs’ counsel has specifically advocated for the infusion of accountability in the KCMSD:
No systemic process exists by which poor and mediocre teachers are weeded out, because the school district doesn’t have any idea what its measuring them against, because it has no vision and no criteria, and therefore, no reason judgments are made on the decisions that must be made.... And the same thing applies to programs, which programs to retain and which programs to cut....
See Comments of Arthur Benson, Transcript at 78–79 (April 17, 1997). Likewise, the Court and DMC have demanded real accountability in the KCMSD as a practicable and necessary step toward unitary status. See e.g. Order at 2 [Doc. # 4772] (June 17, 1999) (naming implementation of accountability plan as a “practicable step” toward unitary status); Order at 2 [Doc. # 4738] (October 23, 1998) (requiring development of an “effective program for assessment and accountability”); Order [Doc. # 4735] (October 14, 1998) (approving School Board’s decision to buy out former Superintendent’s contract because his administration was not performing and was disruptive to the KCMSD’s progress).
In fact, the KCMSD Transition Plan identified the absence of “real accountability at all levels” as one of the primary factors contributing to the “perpetuation of the achievement gap between black and white students in the KCMSD.” See Transition Plan at 16–17. When the KCMSD submitted its Accountability Plan this past Spring, the KCMSD stated:
Public schools are only going to stay in business if they are able to prove that they can teach the children in their charge to read, write, and compute at high levels. Bottom line, they must produce and showcase quantifiable results on tests and other achievement indicators. Making test results and other academic data the central piece of the school accountability tool will help to answer the following questions: What have students learned as a consequence of going to school? Are the schools in the district improving? Are students *1077 prepared for entry after graduation into post-secondary education institutions; the military; and/or the job market? Are they prepared with the skills to allow them to make choices that impact the quality of their lives?
Performance indicators, or outputs, are more difficult to measure than school inputs, but they are valid indicators of progress. No indicator system could accommodate all of the potentially important indicators of valid educational processes and still remain manageable. The indicators chosen were consistent with those identified as important in the Research and/ or by the State of Missouri.
See KCMSD Motion for Approval of Plans [Doc. # 4761], Exhibit A, “Accountability Plan” (January 29, 1999); KCMSD Updated Accountability Plan [Doc. # 4765] (April 15, 1999). Not only did the KCMSD rely on MSIP performance indicators to develop its court-ordered accountability plan, therefore, the District also acknowledged its responsibility to educate students or be put out of business.
The State Board’s accreditation decision holds the KCMSD accountable for its educational failures. The KCMSD has previously praised the need for such accountability. The Court believes that an Order declaring the State Board’s decision void would simply allow the KCMSD to avoid being held accountable and further shirk its educational responsibilities to the State of Missouri and the children of Kansas City. Such an Order would not, on the other hand, further the constitutional

standards of a desegregated, equal education.
While the negative consequences of an unaccredited designation, both direct and indirect, may indeed be real, they can be attributed to the State Board’s decision only to the extent that decision increases the District’s problems. The KCMSD fears that its unaccredited status will motivate student flight to charter schools. A student’s decision to leave the District for a charter school is more likely to be motivated, however, by his or her realization that the KCMSD is not, in fact, providing the education needed. The potential that students would come to this conclusion existed long before the State Board voted to designate the KCMSD as unaccredited. See e.g. Testimony of Dr. John Murphy, Transcript at 31 (November 1, 1999) (“If you have to be awakened in Kansas City to the fact that students aren’t performing, you have been completely under a rock for the last five years.”). Similar reasoning applies to fears about the potential flight of qualified teachers and administrators. The Court does not believe that the State Board’s accreditation decision is any more likely to inhibit the KCMSD’s recruiting potential. Working in the KCMSD, regardless of its unaccredited status, presents a major challenge that will either attract or repel education professionals.
In sum, the Court believes the State Board’s decision to designate the KCMSD as unaccredited is: (1) based on standards that are fully consistent with the Court’s desegregation orders; (2) an attempt to infuse accountability in the KCMSD that is fully consistent with the Court’s desegregation orders; and (3) unlikely to engender the high degree of negative consequences that could prevent compliance with the United States Constitution. For all of these reasons, the State Board’s decision is entitled to respect and the Court will not declare that decision void.
IV. MODIFICATION OF THE COURT’S DESEGREGATION ORDERS
[4] The foregoing discussion has raised serious questions for the Court about the efficacy of continued judicial control over the KCMSD. The KCMSD is entering its twenty-third year of Court supervision; during fifteen of those years, the Court has directed the KCMSD’s remedial efforts. The KCMSD has consistently complied in good-faith with the Court’s desegregation orders. See e.g. Jenkins III, 515 U.S. 70, 89, 115 S.Ct. 2038, 2049, 132 L.Ed.2d 63 (1995). Furthermore, the *1078 KCMSD has expended great energy on the Court’s remedial orders. Given its long history of administrative problems, the KCMSD has attempted in every way practicable to eliminate the vestiges of prior segregation.
The KCMSD has successfully established a stable and practicable racial balance in light of its concentrated minority student population. The capital improvement program ordered by the Court prior to 1997 has been substantially and practicably completed. The KCMSD has also significantly modified its accounting practices so that it could reconcile actual expenditures to budgeted amounts. The KCMSD has developed quality instructional plans, including a new Core Curriculum, a professional development plan, and assessment and accountability plans. Although the KCMSD’s development of these plans came late in the day, the Court, the DMC, and DESE have all noted that the District’s administration is now making substantial progress implementing these plans.
While the KCMSD’s transition progress in implementing the Court’s remedial directives has often been slow and intermittent, the KCMSD has faced significant hurdles during its transition phase. A major, but necessary, budget reduction, a poorly-qualified and unstable administration, and an overly political Board have all impeded the KCMSD’s progress. Administrative difficulties and non-discriminatory political influences in local policy are not constitutional violations, however. Nor can the Court consider these “hurdles” to be vestiges of prior segregation. In fact, the Court has already concluded that prior segregation did not result in other, similar deficiencies, such as the previous “lack of a core curriculum [and] uneven quality of teachers.” Jenkins, 959 F.Supp. at 1163. Thus, even though administrative efficiencies and a nonpoliticized focus on education may constitute “the building blocks of a good school system, which admittedly, the KCMSD is not,” these “deficiencies relate only peripherally” to the KCMSD’s remedial targets.
The KCMSD has not only had to overcome internal difficulties, it has also faced external problems resulting directly from this case. The parties and the DMC have mired the KCMSD’s educational policies in repeated litigation when such policy decisions would normally fall within the KCMSD’s exclusive domain. See e.g. AFT Objection to DMC Recommendation [Doc. # 4776] (July 26, 1999) (objecting to reconstitution of KCMSD schools); Order [Doc. # 4780] (August 12, 1999) (requiring answers to certain questions); Order [Doc. # 4782] (August 26, 1999)(denying AFT objection and ordering KCMSD to show cause why DMC recommendation should not be adopted as Court Order); KCMSD Objection to DMC Recommendation [Doc. # 4786] (September 24, 1999) (regarding placement of middle school teachers); KCMSD Objection

to DMC Recommendation [Doc. # 4789] (October 8, 1999) (regarding Internal Auditor position). The Court understands that the District’s poor track record of making (or not making) such decisions has led to the necessary involvement of other actors. Indeed, the Court asked its DMC to be closely involved in the KCMSD’s day-to-day operations. See Order [Doc. # 4580] (August 21, 1997). Without the DMC’s involvement, the KCMSD may not have succeeded to the extent that it has, and the DMC should be praised for its actions and decisions. The Court also believes, however, that repeated litigation over the KCMSD’s educational policy has slowed the District’s progress.
A secondary consequence of the repeated litigiousness spawned by this case is the KCMSD’s need to set-aside large sums of money to pay its attorney’s fees and litigation costs. Moreover, continued Court oversight has warped the KCMSD’s lines of communication such that its general counsel reports directly to the School Board rather than to the Superintendent. See DMC Report to the Court at 12–13 (October 22, 1999). This dual system of communicating with the School Board not only violates state standards for school district operation, they also circumvent the *1079 Superintendent’s ability to control the decisionmaking and direction of the administration. Compare 5 C.S.R. 50–340.010(2)(C) (1998), with DMC Report to the Court at 13 (October 22, 1999). This case also has forced KCMSD personnel to operate under multiple chains of authority, including the Court, the DMC, the School Board, the Superintendent, the KCMSD’s attorneys, the Plaintiffs’ counsel, and the AFT. All of these entities, including the Court, have helped to pull the KCMSD away from its primary focus—educating children. It is also possible, even likely, that the large number of chefs in the KCMSD’s kitchen has contributed to its administrative instability, leading some of the District’s past administrators and Superintendents to leave the KCMSD rather than be endlessly prodded in different directions. Certainly, the Court’s oversight of the KCMSD and School Board has led to intensified media scrutiny and politicization of administrative and educational issues, further damaging the District’s ability to focus and progress.
These by-products of Court oversight suggest that retention of judicial control may be more disruptive than beneficial to the KCMSD. The Court is drawn even closer to this conclusion by the fact that the KCMSD and the Kansas City community have repeatedly used the Court’s presence as a shield from responsibility. In 1997, the Court’s continued oversight served to protect the KCMSD from having its tax levy reduced from the court-ordered amount of $4.96 to the state-ordered minimum of $2.75. See Jenkins, 959 F.Supp. at 1154. Taxpayers of Kansas City had not approved a tax levy increase since 1969. Id. at 1169. After 1986, the Court’s presence obviated any need for local leaders to seek such a difficult vote. Although the KCMSD’s tax levy financing no longer appears to be a problem, see Jenkins, 158 F.3d 984, 985 (8th Cir.1998)4, Superintendents and School Board members have continued to use the Court as a shield from responsibility, placing blame on the Court and DMC for the KCMSD’s inability to make particular reforms. See e.g. Phillip O’Connor, Judge Rebukes School Board: Quit politicking, he tells members, K.C. Star, June 16, 1999, at A1 (“ ‘You can’t give the DMC operational, day-today control and excuse them when things don’t go right,’ said board member Lance Loewenstein. ‘Either the DMC is responsible, or they’re [sic] not.’ ”). In essence, District leaders have attempted to avoid accountability by hiding under the Court’s oversight. The KCMSD has once again sought to shield itself behind the Court—this time, from the State’s accreditation process. The Court believes that the KCMSD’s ability to use the Court as a shield from responsibility and accountability negatively impacts its motivation to take the actions necessary to be an effective school district.
From the above analysis, the Court believes the time has come to modify its prior desegregation orders and grant the KCMSD complete relief from further liability under those orders.5 Informing the *1080 Court’s decision to exercise its discretion at this time are the following factors: The KCMSD has made significant progress toward eliminating the academic achievement gap and is on track to continue its progress. The District has a valuable new leader and well-conceived instructional plans to guide its way. It has consistently complied in good-faith with the Court’s remedial orders since they were entered, and it is currently operating in compliance with the Constitution. Considering the obstacles that the KCMSD has faced in the form of administrative incompetence, instability, repeated litigiousness, warped lines of authority and communication, and major budget reductions necessitated by a scaled-back remedial plan, the Court concludes that the KCMSD has eliminated the vestiges of prior segregation to the extent practicable.
Also weighing heavily in the Court’s decision is its belief that judicial supervision is more likely to impede the KCMSD’s progress than motivate it, especially considering the degree of consistency between the State’s accreditation standards and constitutional requirements. Where the Court’s continued oversight was previously necessary to hold the KCMSD’s feet to the fire, such supervision is no longer so important. The KCMSD must remain focused on its current path if it has any hope of regaining accreditation. If the KCMSD fails to continue its focus on professional development, curriculum implementation, methodically targeting assessments toward improved academic achievement, and keeping its students in school, it will most certainly fail to regain accreditation and its corporate charter will lapse. This fear alone should motivate the District and community. Court oversight, then, is unnecessary to keep the KCMSD on track.

Finally, the Court notes the peculiarity of the KCMSD’s current situation. The Court’s desegregation orders are only intended to enforce constitutional guarantees of an equal education; they do not and cannot make a high standards education the primary focus of this case. By contrast, the State Board’s accreditation standards are intended to ensure high educational standards and a quality education for Missouri schoolchildren. Despite this important difference in purpose, the KCMSD’s transition principles and remedial targets are virtually identical to the State Board’s resource and process standards for state accreditation purposes. The United States Constitution does not set academic standards for education. The founding fathers left this realm to the various states, and no amendment has yet changed this balance of educational authority. Consequently, absent some further direction from the Supreme Court or a new constitutional amendment, it is incumbent on this Court to ensure that the Fourteenth Amendment not become so corrupted as to guarantee general educational standards that it was never meant to ensure. The sole question in this case is whether the KCMSD is currently providing an equal education to its students, regardless of their race. The Court must answer this question in the affirmative.
The KCMSD is not in any way segregating its students or otherwise discriminating on the basis of race; it has not done so for many years. In contrast, the District has made every practicable effort to eliminate the lingering vestiges of prior segregation. Asking any more, even in the face of the KCMSD’s obvious educational deficiencies, would unnecessarily intrude upon the “interests of state and local authorities in managing their own affairs consistent with the Constitution.” Jenkins III, 515 U.S. at 98, 115 S.Ct. at 2054 (quoting Milliken v. Bradley, 433 U.S. 267, 280–81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977)). Consequently, the Court believes that modification of its remedial orders is necessary to “restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.” Jenkins III, 515 U.S. at 102, 115 S.Ct. at 2056.

V. CONCLUSION
For the foregoing reasons, the Court DENIES the KCMSD’s motion for equitable *1081 relief. The Court will not rejoin the former State Defendants as parties in this case or declare the State Board’s accreditation decision void ab initio. Furthermore, it is
ORDERED that the Kansas City Missouri School District, the Kansas City Missouri Board of Education, and the Superintendent of Schools are hereby relieved from further liability under the Court’s desegregation orders. This case is dismissed with prejudice, subject to Court resolution of pending motions and future motions for costs and fees related to this litigation. To facilitate the Court’s exit from this case, the Court will ORDER that its DMC remain in place, consistent with the Court’s Order of August 21, 1997, until the parties resolve all issues raised by this Order, including a potential appeal, or until March 27, 2000, whichever comes earlier.
IT IS SO ORDERED.

All Citations 73 F.Supp.2d 1058

Footnotes

1

Although the Court also ordered the KCMSD to attempt to achieve a plus or minus range of 15% in faculty

assignments at 80% of the elementary schools in the KCMSD, it later abrogated this order. The Court

acknowledged that an order related to faculty assignments went beyond the scope of the violation and could not

be constitutionally imposed on the KCMSD. See Orders [Doc. # 4658, # 4708] (February 12, May 28, 1998).

2

The Court notes that the KCMSD focuses solely on the adverse impact that charter schools may have on its

operations. The ultimate purpose of this case, however, is to ensure a desegregated education for the plaintiff

schoolchildren. The plaintiff class is deﬁned as all present and future KCMSD students and includes all charter

school students in Kansas City. Thus, while an increase in charter schools may indeed affect the KCMSD (and

that is not a question to be decided here), that increase may be just as likely to advance the quality and

unitariness of education for Kansas City pupils. Additionally, one might hope, as the state legislature apparently

does, that the competition created by charter schools may further improvements in the education that the KCMSD

provides.

3

The only difference lies in the assessment tool. Whereas the Court placed signiﬁcance in 1997 on the Iowa Test

of Basic Skills (“ITBS”), the State has developed an assessment program, the MAP, that more closely measures

Footnotes

1

Although the Court also ordered the KCMSD to attempt to achieve a plus or minus range of 15% in faculty

assignments at 80% of the elementary schools in the KCMSD, it later abrogated this order. The Court

acknowledged that an order related to faculty assignments went beyond the scope of the violation and could not

be constitutionally imposed on the KCMSD. See Orders [Doc. # 4658, # 4708] (February 12, May 28, 1998).

2

The Court notes that the KCMSD focuses solely on the adverse impact that charter schools may have on its

operations. The ultimate purpose of this case, however, is to ensure a desegregated education for the plaintiff

schoolchildren. The plaintiff class is deﬁned as all present and future KCMSD students and includes all charter

school students in Kansas City. Thus, while an increase in charter schools may indeed affect the KCMSD (and

that is not a question to be decided here), that increase may be just as likely to advance the quality and

unitariness of education for Kansas City pupils. Additionally, one might hope, as the state legislature apparently

does, that the competition created by charter schools may further improvements in the education that the KCMSD

provides.

3

The only difference lies in the assessment tool. Whereas the Court placed signiﬁcance in 1997 on the Iowa Test

of Basic Skills (“ITBS”), the State has developed an assessment program, the MAP, that more closely measures

student learning than the older, strictly norm-referenced ITBS. The ITBS only retains its signiﬁcance because of

the Court’s involvement. MAP scores, on the other hand, will better assist the KCMSD in realigning its curriculum

and instruction to identiﬁed weaknesses, making it much more valuable as a tool for improving student

performance.

4

A state constitutional amendment now authorizes the School Board for the KCMSD to set its tax levy as high as

$4.95 without voter approval. See H.J.R. 9, 89th Gen. Assembly (Mo.1997) (approved by voters April 7, 1998)

(amending Mo. Const. Art. 10 § 11(g)).

5

The Court has the “inherent capacity to adjust [its] remedies” and “vacate or modify its injunctions.” See Jenkins,

122 F.3d 588, 600–01 (8th Cir.1997) (quoting Freeman v. Pitts, 503 U.S. 467, 487, 489, 112 S.Ct. 1430, 1444,

1445, 118 L.Ed.2d 108 (1992) and Booker v. Special School Dist. No. 1, 585 F.2d 347, 352 (8th Cir.1978), cert.

denied, 443 U.S. 915, 99 S.Ct. 3106, 61 L.Ed.2d 878 (1979)). This is especially true in a school desegregation

case, where “equity has been characterized by a practical ﬂexibility in shaping its remedies and by a facility for

adjusting and reconciling public and private needs.” Milliken v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2749, 2761,

53 L.Ed.2d 745 (1977) (quoting Brown v. Board of Educ., 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083

(1955)). Moreover, the Court bears the primary responsibility for exercising its discretion in determining “whether

and to what extent an injunction should be modiﬁed.” See Jenkins, 122 F.3d 588, 601 (8th Cir.1997) (citing

Booker, 585 F.2d at 353).

 
 205 F.3d 361 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi JENKINS; Nicholas Paul Winchester-Rabelier, by his next friend, Paula Winchester; Margo Vaughn-Bey, by her next friend, Franklin Vaughn-Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd-Peter; Leland Guess, by his next friend, Sharon Guess, 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; Thomas R. Davis, Member of the Missouri State Board of Education; Robert E. Bartman,
Commissioner of Education of the State of Missouri; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member of the Missouri State Board of Education; Betty Preston, Member of
the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education, Defendants
School District of Kansas City; Benjamin Demps, Jr., Superintendent, School District of Kansas City, Missouri; John A. Rios, School Board President; Patricia Kurtz, School Board Member; Lee Barnes, Jr., School Board Member; Lance Loewenstein, School Board Member; Sandy Aguire Mayer, School Board Member; Elma Warrick, School Board Member; Fifi Bliss Weideman, School Board Member, Defendants-Appellees.
Nos. 00-1048, 00-1288. |
Submitted Feb. 22, 2000. |
Decided Feb. 29, 2000. |
Rehearing En Banc Granted; Opinion and Judgment Vacated and Mandate Recalled April 21, 2000.
Synopsis School district moved to invalidate a decision of the Missouri State Board of Education to designate it as unaccredited. The United States District Court for the Western District of Missouri, Whipple, J., 73 F.Supp.2d 1058, upheld challenged decision and, sua sponte, held that district had attained unitary status, and dismissed desegregation action. Class representing the children of the district appealed. The Court of Appeals, John R. Gibson, Circuit Judge, held that the district court erred in sua sponte determining school district to be unitary and dismissing desegregation case without benefit of notice, hearing, argument, or other evidentiary presentation.
Reversed and remanded.
Attorneys and Law Firms
*362 Arthur A. Benson II, Kansas City, Missouri, argued (Jamie Kathryn Lansford, on the brief), for appellants.
Mark A. Thornhill, Kansas City, Missouri, argued (Michael F. Delaney, Terry W. Schackmann, Michael C. Leitch, Taylor Fields, Charles Brown, and David Naatz, on the brief), for appellees.
*363 Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.

The Jenkins class, representing the children of the Kansas City, Missouri School District in this school desegregation case, has appealed the district court’s order declaring the district unitary and dismissing the case with prejudice. The order followed a hearing set by the court to consider KCMSD’s amended motion for equitable relief from a ruling of the Missouri State Board of Education declaring that the accreditation of KCMSD would be withdrawn effective May 1, 2000. After the district court denied KCMSD’s motion, it proceeded sua sponte to a discussion of the unitary status of the district and declared the district to be unitary. We reverse and remand.
We need not discuss in detail the long history of the Kansas City school desegregation litigation. After a finding of constitutional violations, years of effort to remedy them, and extended litigation and appeals which we need not catalog, the State of Missouri moved for a declaration of unitary status. On March 27, 1997, Judge Russell Clark, who had presided over the case since its filing, granted the motion in part, but denied it in part. See Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.), aff’d, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV). In particular, Judge Clark held that twenty-six percent of the achievement gap of ten normalized curve equivalents between KCMSD’s black and white students was a vestige of the constitutional violation, and he ordered KCMSD to eradicate that vestige within the next three years. Id. at 1157-65, 1179. At the same time, Judge Clark approved a settlement between KCMSD and the State, providing that the State would pay KCMSD $320 million over three years, and in return, would be dismissed from the litigation. Id. at 1180.
On January 28, 1999, the district judge who succeeded Judge Clark to supervision of the case entered an order declaring that the State had paid its obligation under the settlement and dismissing the State from the case. Order of January 28, 1999. The court said that the State must continue to comply with any obligations that it undertook during the course of the lawsuit that were not covered by the agreement and warned the State against taking any action that might prevent KCMSD from ultimately fulfilling its court-ordered remedial goals. Id. at 6. The court then pointed to Judge Clark’s order giving KCMSD three years to eliminate all the remaining vestiges of segregation; the court commented that fifteen months remained on this time line. Id. After considering the “lengthy and litigious process” likely to attend a renewed motion for unitary status, the court directed the parties to prepare for a unitary status hearing to begin on January 3, 2000. Id.
Counsel appeared before the court on August 24, 1999 for a scheduling conference, which the court stated was “to address ... preparing for a unitary status hearing in January,” specifically what evidence the parties anticipated presenting in the hearing. Counsel for the class suggested delaying the hearing. He said that it would be difficult for KCMSD to make a case that everything practicable had been done, because there was a “pretty widely shared agreement that this is not the case.” Furthermore, some test data were not in, and others seemed to show the achievement gap had not been closed. Nor had KCMSD implemented the curriculum, professional development, and accountability plans designed to close the gap. Also, KCMSD had just hired a new superintendent. The class’s counsel suggested a hearing in the late summer of 2000.
The court then pointed to Judge Clark’s statement that gave the district three years to eliminate the vestiges of discrimination, and stated he “believed the Supreme Court when they told me to get this school district returned to local control,” *364 and that both he and Judge Clark had given KCMSD three years to comply.
Counsel for the class pointed out that recently the monitoring had been less heavy-handed, and that the monitoring committee, which was commonly referred to as the DMC, had been sending things back to the new superintendent to handle. Counsel said there were many ways the committee could lighten its monitoring. Counsel for the class stated that he did not anticipate that he would be presenting new approaches or anything other than implementation of the five programs already planned for reducing the black-white achievement gap: the curriculum, classroom practices, professional development, assessment, and accountability plans.
The district court then stated that he sensed that both the class and KCMSD were “pretty satisfied that the school district can’t ... go forward with the burden of proof that the gap has narrowed.”1 He said he would need to have a hearing to take testimony from one of the experts who testified at the earlier unitariness hearing and also to hear whether the district was “on track” in implementing the five programs. The court commented that the problem had been the delay in implementation of the five plans to reduce the achievement gap. The court further commented that the track record of the district had not convinced him that KCMSD was putting heart and soul behind implementing the five areas or that KCMSD could get out of the political mode and get into looking for the best interests of the children.
Following this conference, the court filed a written order formally denying the motion for a continuance, stating: [T]he Court provided for termination of the [DMC] by March 25, 2000. See Order at 21, Doc. # 4575 (August 21, 1997), .... [E]ven if the KCMSD has not attained unitary status, all three Monitors would be

removed. See id. At that time, the Court would need to determine the need for new Monitors or even a new remedial structure. Such a determination cannot be made without evidence of the KCMSD’s current status.
Order of August 26, 1999 at 17-18 (emphasis added).
On October 21, 1999, the State Board of Education voted to withdraw accreditation of KCMSD as of May 1, 2000. In response, KCMSD filed an amended motion for equitable relief on October 25, 1999, seeking to bar the State’s action on the ground that it would interfere with the remedial decree in Jenkins. That same day, the court issued an order setting KCMSD’s motion for hearing on November 1 to hear evidence on three enumerated issues: whether the court should (1) rejoin the State as a party; (2) declare void ab initio the action of the Missouri State Board of Education in classifying KCMSD as an unaccredited school district; and (3) enjoin the application to KCMSD of several statutes on which the State Board’s action was based.2
The court held the hearing on KCMSD’s motion on November 1-2, 1999. We need not discuss in detail the testimony before the court, except to state that it was directed to the issues outlined by the district court in its order of October 25. The parties agreed in oral argument before us that the hearing was not a unitary status hearing. At the conclusion of the proceedings of November 2, the court asked KCMSD’s staff counsel whether the *365 KCMSD board agreed there should be a unitary status hearing in January. Counsel responded that the board voted unanimously to seek a continuance and authorized her to agree to a continuation of the monitoring committee in its current configuration until the end of the 1999-2000 academic year in June.
On November 9, 1999, KCMSD filed a written motion requesting a continuance of the unitary status hearing set for January 3, 2000, and consenting to continued supervision by the DMC. KCMSD further suggested that it would be appropriate to extend the term limits of the DMC beyond March 25, 2000, and to set a hearing at the end of the academic school year, June 3, 2000, to assess the role of the DMC and consider a reduction in the scope of the oversight by that body in the future.
On November 17 the district court issued an order denying KCMSD’s request to rejoin the State as a party and refusing to declare void ab initio the action of the State Board of Education classifying KCMSD as an unaccredited school district.3 After ruling on the motion before it, the court proceeded sua sponte to consider the issue of whether the district was unitary. In light of the nature of our ruling, it is not necessary that we set out in detail the substance of the court’s reasoning. Suffice it to say that, much to the parties’ surprise, the court ended by declaring that the KCMSD had achieved unitary status. The court dismissed the case with prejudice.
I.
[1] We first consider whether the district court erred in determining KCMSD to be unitary and dismissing the case without taking evidence or hearing arguments on the issue.
In January 1999 the court scheduled a hearing on unitary status for January 2000, and both in a conference with counsel and a written order in August 1999 commented specifically on the necessity for a hearing to evaluate what continuing judicial involvement would be required. The order setting the November 1-2, 1999 hearing limited that hearing to the issues of whether the State should be rejoined as a party and whether the de-accreditation order should be declared void ab initio. The transcript discloses that the testimony and evidence at the hearing were directed to these issues. The court’s inquiry at the conclusion of the November 1-2 hearing as to whether there should be a unitary status hearing in January demonstrates that the court did not consider it had conducted such a hearing. KCMSD’s counsel’s response to this inquiry by the court and its written motion filed November 9, 1999 for a continuance of the unitariness hearing demonstrate that KCMSD did not consider that there had been a hearing on unitary status.
It is evident from what we have said above that KCMSD did nothing to contest the Jenkins class’s statements that neither KCMSD nor the class were ready to move forward and establish that KCMSD was unitary, and the judge acknowledged as much. From this and from the court’s order limiting the proof at the November 1-2 hearing, the Jenkins class as well as KCMSD went into the hearing with no expectation that unitary status was an issue to be tried.

[2] In Jenkins XIV we held, based upon abundant Supreme Court authority, that once there has been a finding that a defendant established an unlawful dual school system in the past, there is a presumption that current disparities of the sort listed in Green v. County School *366 Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), are the result of the defendant’s unconstitutional conduct. See Jenkins XIV, 122 F.3d at 593. Therefore, the burden of proving unitariness rests on the constitutional violator. Id. at 593-95. Our statement in Jenkins XIV found support in Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), where the Supreme Court stated with respect to racial imbalance in student attendance caused by the unlawful policy of a school system, “The School District bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.” Other statements in Freeman similarly recognized that the burden was on the district to demonstrate a good faith commitment to compliance with the desegregation plan. Id. at 498-99, 112 S.Ct. 1430. This presumption places the burden in any hearing on unitary status on KCMSD, including the issue of reduction in student achievement and the achievement gap, and it admittedly made no attempt to demonstrate that unitary status had been achieved.4
This court stated in Booker v. Special School District No. 1, 585 F.2d 347, 352 (8th Cir.1978), “There is no question that in a proper case a federal district court that has issued an injunction may vacate it or modify it if it is established that to continue it in force or without modification would work an inequitable result.” (emphasis added.)
The Seventh Circuit faced a nearly identical situation in United States v. Board of School Commissioners, 128 F.3d 507 (7th Cir.1997). There, the Board of School Commissioners of the Indianapolis Public School District requested that the judge lift an injunction requiring busing of public school students on the ground that the district had achieved unitary status.5 The district court declined to address the issue of unitary status, but modified its existing order by extending the busing to kindergartners, an issue that had not been raised by the parties. The Seventh Circuit, in an opinion by Chief Judge Posner, stated:
No one asked the judge for this modification; there was no hearing on it. As a result, there is nothing in the judge’s order, or in the record on which it is based, about the respective kindergarten programs, facilities, and capacities in the transferor and transferee areas or about the appropriateness of compelling the busing of such young children against their parents’ wishes and whether they are to be in the same buses with much older children. 128 F.3d at 512. In support of the court’s order that they, like KCMSD here, did not seek in the first place, the appellees pointed out that the district judge had “learned a lot about public school education in Marion County in the thirty years that he has been presiding over this litigation.” Id. The Seventh Circuit responded:
[G]reat knowledge is a temptation as well as a resource: a temptation to blur the separation of powers, to shift the balance between the federal courts and state and local government too far toward the courts, and to disregard procedural niceties, all in fulfillment of a confident sense of mission.
Id.
Although the Seventh Circuit was dealing with expansion of a remedy and we *367 deal with the elimination of one, the principle is the same: procedural niceties equate with due process and must be afforded the parties. As the Seventh Circuit vacated the sua sponte order and remanded for the district court to hold an evidentiary hearing, so should we.
Counsel for KCMSD conceded that the court’s ruling was on a ground not argued by the parties, but insisted that the court was thinking ahead of KCMSD. Having achieved its unexpected release from litigation, KCMSD hastens to give support to the ruling.
KCMSD argues that the district court did not err in declaring KCMSD unitary without benefit of notice, hearing, argument, or other evidentiary presentation. KCMSD cites Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), for the principle that “Parties are not always entitled to a hearing.” Link has little, if any, relevance to this case. In Link, the district court set a pretrial conference and notified counsel. When the lawyer for the plaintiff did not appear at the time set, the court dismissed the action for failure to appear and failure to prosecute. Id. at 629, 82 S.Ct. 1386. Link did no more than rule that the dismissal for failure to prosecute was not an abuse of discretion. Id. at 633, 82 S.Ct. 1386.
Link is about sanctions, not about what opportunity parties should be given to present evidence and make argument before a ruling on the merits of their case. It certainly is not about the proper procedure for dismissal of a school desegregation case in which a school district has been adjudged liable for constitutional violations and subjected to a remedial decree. However,

Link does have some general applicability to this case insofar as it discussed the circumstances that can justify entry of an order without the opportunity to be heard: “The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.” 370 U.S. at 332, 82 S.Ct. 1502. Unlike Link, where the attorney had notice of the pretrial conference, and should have known that his failure to appear would have consequences, in this case there was no notice to any of the parties, either constitutional violator or victims, that the issue of unitary status was to be considered and decided at the November hearing. To the contrary, there was every assurance that unitary status would not be considered until the scheduled January 2000 hearing, and KCMSD’s requests for continuance strongly suggested that it would not even be in a position to contend that the district was unitary in January 2000. Link certainly demonstrates that simple fairness would require notice and hearing before a decision that dismisses the case.
At oral argument, KCMSD’s counsel suggested that the Jenkins class had the opportunity to present evidence on the unitariness question at the hearing on the class’s motion to stay the dismissal pending appeal. The opportunity to argue a stay motion, with the class having the burden on four discrete issues which placed the constitutional victims in the position of arguing that the horse should be put back in the barn, should not substitute for a chance to present evidence and argue the merits in a hearing called for that purpose.
The sua sponte ruling declaring the district unitary and releasing the admitted constitutional violator from further court supervision, without giving notice either to the constitutional violator or the victims or permitting the parties to present evidence and argue these issues, was error.
II.
Although we do not reach the merits of the unitariness issue, we think it appropriate to comment on some issues the district court will face on remand.
*368 The testimony at the hearing focused on the impact of the de-accreditation order, which Dr. John Murphy, a member of the DMC, described as a death knell, and Superintendent Benjamin Demps6 described as a train wreck. Whatever description is applied, it was a resounding statement, of thunderclap proportions, that KCMSD had not been successful in dealing with the system wide reduction in student achievement, much less the achievement gap. In addition, there was considerable evidence about the effect of the establishment of some fifteen charter schools, unaccredited and not subject to state control, which had siphoned off more than 3,000 students from KCMSD. This resulted in KCMSD suffering a financial loss in the millions of dollars the law required be paid to the charter schools. These developments, the result of state action, have placed KCMSD in a most difficult situation, according to both Superintendent Demps and Dr. Murphy, in working to deal with the difficult educational problems KCMSD faces.
[3] The district court commented that many of the hurdles that are presented to the plan and to unitary status are not constitutional violations. Order of November 17, 1999 at 36. This misses the point. Hurdles and obstacles to eliminating the vestiges of the past dual school system are properly the subject of attention by the court and may be addressed by injunctive order, if needed. Limitations on a school authority’s discretion that impede the disestablishing of a dual school system must fall. North Carolina State Board of Educ. v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 28 L.Ed.2d 586 (1971). This principle was applied earlier in this litigation to state action both by this court, Jenkins v. Missouri, 855 F.2d 1295, 1309-15 (8th Cir. 1988), aff’d in relevant part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), and the Supreme Court in Missouri v. Jenkins, 495 U.S. 33, 57-58, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). The court has the obligation to vindicate federal constitutional guarantees and to take what action is necessary for this purpose. See Missouri v. Jenkins, 495 U.S. at 57-58, 110 S.Ct. 1651.
The district court expressed most positively that he was guided by the three-year limitation set by Judge Clark in March 1997, and he had adopted this as his own limitation as well. Judge Clark’s order, however, while establishing the three-year limitation, was unable to say with absolute certainty that KCMSD would have attained unitary status in that time, and recognized that some thought five years might be needed. 959 F.Supp. at 1179. In affirming this order of Judge Clark’s, we commented that the three-year time table was an optimistic prediction, see 122 F.3d at 601, and the figure was not susceptible of precise calculation. Id. at 602. It is significant that the three-year period has seen the termination of one superintendent of schools, the hiring of another, the later buyout of his contract, and the search for and hiring of the present superintendent.

Superintendent Demps stated that the district is currently undertaking efforts to reduce the achievement gap, which included instructional methodology and professional development, but he said this has not moved far since he came on board. Superintendent Demps further testified that the district is in the process of implementing the core curriculum; however, he had heard from Cheryl Shannon, Chief of Staff of KCMSD, that the curriculum was not aligned with the Missouri Show-Me Standards. There was a difference of opinion on this, and they were going to see to it that the court-ordered curriculum was *369 properly aligned with the State’s new Show-Me Standards.
Shannon stated that there was work remaining to be done toward implementation of the programs ordered to reduce the achievement gap. Implementation of the professional development and assessment plans had begun, but there were hurdles remaining toward getting those plans up and running in part caused by vacancies in key positions. Further, the accountability plan had not been completely developed or accepted, and several scripts had not been developed, including those for teacher, principal, school, and central office evaluation. Shannon believed that the de-accreditation decision would risk further delay in implementing the various plans.
Superintendent Demps identified the accountability plan as a major part of the improvement program. Counsel informed this court at argument that not even a pilot program would be in place until the academic year 2000-01, and full implementation could not occur before the 2001-02 academic year. KCMSD’s brief acknowledged that “teacher acceptance of the courtapproved accountability plan is certain to be among the [topics for the] District’s upcoming negotiations.” A question obviously exists about not only the time frame, but also implementation of the accountability program.
It is also of significance that the March 27 termination of the desegregation monitoring committee and the de-accreditation effective date fall in the middle of the school year. Superintendent Demps expressed his deep concern about this, and we share this concern about the effect of an arbitrarily selected cut-off date bifurcating a school year.
[4] The order of the district court in dismissing the action viewed the question as an all-or-nothing proposition. Yet, the Supreme Court has recognized that gradual and incremental withdrawal of the court’s supervision may be most appropriate. See Freeman, 503 U.S. at 489, 112 S.Ct. 1430 (“Partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court’s duty to return the operations and control of schools to local authorities.”). Counsel for the Jenkins class conceded in the August conference before the district judge that the planning has been completed and he anticipates no suggestion of additional plans. What remains is the issue of the implementation of the plans in the five areas of curriculum, classroom practices, professional development, assessment, and accountability, all of which relate solely to the remedying of the system wide reduction in student achievement and the narrowing of the achievement gap. This concession significantly narrows the scope of the issues left for further judicial attention.
It should be observed that preparation of the plans, which requires effort by educational professionals, may be far simpler than implementation of the plans. This involves seeing that the plans ultimately have major impact in the classroom by teachers and administrators. The end result sought is an improvement in student achievement and reduction of the achievement gap. This is a people management issue requiring substantial effort and dedication, and one of great complexity.
We have affirmed and given our support to the district court in taking steps to improve student achievement and to reduce the achievement gap between black and white students in the Kansas City School District. Insofar as the Missouri State Department of Education shares this goal, it also has our support. Insofar as there may be conflicting goals between the State Department of Education and the district court orders, we believe that the district court should attempt to reconcile those goals so that impediments to the achievement of the goals are removed.
The limited scope of the remaining issues must be a key element in further consideration of this case by the district *370 court. The district court must exercise its judgment and discretion, but it is our suggestion that the following issues be considered:
(1) Determine whether immediate declaration of unitary status as to all issues in the case but the narrowing of the achievement gap is desirable.
(2) The extent to which the district court’s achievement standards and those of the State can be reconciled and a single clearly understood standard be developed by the court which is consistent with the State standard to the maximum extent practicable.
(3) Reevaluate appropriate procedures for monitoring or oversight of narrowing of the achievement gap.

(a) To what degree oversight is necessary. That oversight should be narrowly tailored to successfully complete implementation of the five plans.
(b) Appropriate methods or procedures, be it the desegregation monitoring committee or some other instrumentality or method, for continuation of the monitoring or oversight.
(c) Evaluate and assess the implementation of the five plans, establishing a goal for achieving unitary status of each, and defining a state of implementation of the plans that will allow consideration as to whether there has been successful achievement of implementation. This perhaps will require a determination as to whether a new and realistic time frame is desired.
(4) Consider most carefully the role of court oversight so as to complement and not conflict with the activities of the State with respect to educational improvement efforts.
We also believe the district court should view the role of further monitoring as a protective role, overseeing the superintendent’s activities and his staff in achieving successful implementation of the plans. The district court recognized in particular the past micro-management, politicization and pursuing of personal agendas by the board. The district in its briefs to this court recognized the necessity for negotiation of the assessment and accountability plans with the American Federation of Teachers. In many of these areas such a role by judicial monitoring or oversight could lead to an earlier successful achievement of the implementation of these plans.
We reverse and remand for further proceedings consistent with this opinion. The judges of the Western District of Missouri should, in the manner they deem appropriate, designate another judge to preside over this litigation and do so immediately so as to assure continuity in its management. The mandate shall issue forthwith.

All Citations 205 F.3d 361, 142 Ed. Law Rep. 646

Footnotes

1

This statement came after the following exchange. When the class counsel said in court there was “widely shared

agreement” that KCMSD had not done everything practicable to eradicate the achievement gap, KCMSD did not

object to this representation. KCMSD’s counsel said: “[W]e have a sense at the moment ... that the district would

have an uphill ﬁght in January.”

2

In KCMSD’s motion for relief from the de-accreditation action, it asked the court to stay the de-accreditation until

the ﬁve remedial plans had been fully implemented.

3

The district court’s ruling on the de-accreditation question is not before us. The State argued before the district

court that the action of the State Board of Education is effective May 1, 2000 and that the KCMSD has not

exhausted its administrative remedies. KCMSD conceded that its administrative appeal rights were not yet

exhausted and were not yet ripe.

4

In Jenkins XIV, we pointed to the ﬁnding of the district court in the ﬁrst remedial order decisions that “the inferior

education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri

School District.” 122 F.3d at 594. We also quoted a later ﬁnding, “Segregation has caused a system wide

reduction in student achievement in the schools of the KCMSD.” Id. (emphasis in original). The district court found

that the adverse effect on minority student achievement still persisted in 1997 in the form of an achievement gap;

we held that ﬁnding was not clearly erroneous. 122 F.3d at 597-99.

5

The Seventh Circuit’s opinion stated that the district wanting to phase out can be permitted to do so only by

presenting evidence that the existing order had outlived its usefulness. 128 F.3d at 510.

6

Superintendent Benjamin Demps, Jr. was hired as Superintendent of Schools as of August 1, 1999. The record

demonstrates that there was considerable enthusiasm at his assuming the reins of leadership of KCMSD after a

period of frequent replacement of Superintendents. Superintendent Demps had signiﬁcant management

experience in federal and state government.

School District.” 122 F.3d at 594. We also quoted a later ﬁnding, “Segregation has caused a system wide reduction in student achievement in the schools of the KCMSD.” Id. (emphasis in original). The district court found that the adverse effect on minority student achievement still persisted in 1997 in the form of an achievement gap; we held that ﬁnding was not clearly erroneous. 122 F.3d at 597-99.

5

The Seventh Circuit’s opinion stated that the district wanting to phase out can be permitted to do so only by

presenting evidence that the existing order had outlived its usefulness. 128 F.3d at 510.

6

Superintendent Benjamin Demps, Jr. was hired as Superintendent of Schools as of August 1, 1999. The record

demonstrates that there was considerable enthusiasm at his assuming the reins of leadership of KCMSD after a

period of frequent replacement of Superintendents. Superintendent Demps had signiﬁcant management

experience in federal and state government.

 
 216 F.3d 720 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, by her next friend, Joi Jenkins; Nicholas Paul Winchester–Rabelier, by his next friend, Paula Winchester; Margo Vaughn–Bey, by her next friend, Franklin Vaughn–Bey; Nicholas C. Light, by his next
friend, Marian Light; Stephon D. Jackson, by his next friend, B.J. Jones; Travis N. Peter, by his next friend, Debora Chadd–Peter; Leland Guess, by his next friend, Sharon Guess, 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; Thomas R. Davis, Member of the Missouri State Board of Education; Robert E. Bartman,
Commissioner of Education of the State of Missouri; Rice Pete Burns, Member of the Missouri State Board of Education; Sharon M. Williams, Member of the Missouri State Board of Education; Betty Preston, Member of
the Missouri State Board of Education; Jacquelline Wellington, Member of the Missouri State Board of Education; Russell Thompson, Member of the Missouri State Board of Education, Defendants
School District of Kansas City; Benjamin Demps, Jr., Superintendent, School District of Kansas City, Missouri; John A. Rios, School Board President; Patricia Kurtz, School Board Member; Lee Barnes, Jr., School Board Member; Lance Loewenstein, School Board Member; Sandy Aguire Mayer, School Board Member; Elma Warrick, School Board Member; Fifi Bliss Weideman, School Board Member, Defendants—Appellees.
Nos. 00–1048, 00–1288. |
Submitted May 16, 2000. |
Filed June 15, 2000.
Synopsis School district moved to invalidate decision of the Missouri State Board of Education to designate it as unaccredited. The United States District Court for the Western District of Missouri, Whipple, J., 73 F.Supp.2d 1058, upheld challenged decision and, sua sponte, held that district had attained unitary status and dismissed pending desegregation action with prejudice. Class representing the children of the district appealed. On rehearing en banc, the Court of Appeals, John R. Gibson, Circuit Judge, held that parties were entitled to notice and opportunity to be heard prior to district court’s determination that school district had achieved unitary status.
Reversed and remanded.
Wollman, Chief Judge, filed concurring opinion in which Morris Sheppard Arnold, Circuit Judge, joined.
Heaney, Circuit Judge, filed concurring opinion in which McMillian, Circuit Judge, joined.
John R. Gibson, Circuit Judge, filed separate concurring opinion in which Heaney and McMillian, Circuit Judges, joined.
Beam, Circuit Judge, filed dissenting opinion in which Bowman and Loken, Circuit Judges, joined.
Loken, Circuit Judge, filed dissenting opinion in which Bowman and Beam, Circuit Judges, joined.
Opinion, 205 F.3d 361, vacated.
Attorneys and Law Firms
*722 Arthur A. Benson, Kansas City, Missouri, argued, for appellant.

Mark A. Thornhill, Kansas City, Missouri, argued, for appellee.
Before WOLLMAN, Chief Judge, HEANEY, McMILLIAN, RICHARD S. ARNOLD, JOHN R. GIBSON, BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges.
Opinion
JOHN R. GIBSON, Circuit Judge.
The Jenkins class, representing the children of the Kansas City, Missouri School District in this school desegregation case, has appealed the district court’s order declaring the district unitary and dismissing the case with prejudice. The order followed a hearing set by the court to consider KCMSD’s amended motion for equitable relief from a ruling of the Missouri State Board of Education declaring that the accreditation of KCMSD would be withdrawn effective May 1, 2000. After the district court denied KCMSD’s motion, it proceeded sua sponte to a discussion of the unitary status of the district and declared the district to be unitary. A panel of this court reversed and remanded, Jenkins v. Missouri, 205 F.3d 361 (8th Cir.2000), and we granted KCMSD’s motion for rehearing en banc. After receiving additional filings from the parties and hearing argument, we reverse and remand.
We need not discuss in detail the long history of the Kansas City school desegregation litigation. After a finding of constitutional violations, years of effort to remedy them, and extended litigation and appeals which we need not catalog, the State of Missouri moved for a declaration of unitary status. On March 27, 1997, Judge Russell Clark, who had presided over the case since its filing, granted the motion in part, but denied it in part. See Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.), aff’d, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ). In particular, Judge Clark held that twenty-six percent of the achievement gap of ten normalized curve equivalents between KCMSD’s black and white students was a vestige of the constitutional violation, and he ordered KCMSD to take reasonable steps to eradicate that vestige within the next three years. Id. at 1157–65, 1179. At the same time, Judge Clark approved a settlement between KCMSD and the State, providing that the State would pay KCMSD $320 million over three years, and in return, would be dismissed from the litigation. Id. at 1180.
On January 28, 1999, the district judge who succeeded Judge Clark to supervision of the case entered an order declaring that the State had paid its obligation under the settlement and dismissing the State from the case. Order of January 28, 1999. The court said that the State must continue to comply with any obligations that it undertook during the course of the lawsuit that were not covered by the agreement and warned the State against taking any action that might prevent KCMSD from ultimately fulfilling its court-ordered remedial goals. Id. at 6. The court then pointed to Judge Clark’s order giving KCMSD three years to eliminate all the remaining vestiges of segregation; the court commented that fifteen months remained on this time line. Id. After considering the “lengthy and litigious process” likely to attend a renewed motion for unitary status, the court directed the parties to prepare for a unitary status hearing to begin on January 3, 2000. Id.
When KCMSD had hired its new superintendent, Benjamin Demps, the district judge, at a hearing on July 19, 1999, told Mr. Demps that a unitary status hearing was set for January 3.
Counsel appeared before the court on August 24, 1999 for a scheduling conference, which the court stated was “to address ... preparing for a unitary status hearing in January,” and in particular, what evidence the parties anticipated presenting in the hearing. Counsel for the *723 class suggested delaying the hearing. He said that it would be difficult for KCMSD to make a case that everything practicable had been done, because there was a “pretty widely shared agreement that this is not the case.” Furthermore, some test data were not in, and others seemed to show the achievement gap had not been closed. Nor had KCMSD implemented the curriculum, professional development, and accountability plans designed to close the gap. Also, KCMSD had just hired a new superintendent. The class’s counsel suggested a hearing in the late summer of 2000.
The court then pointed to Judge Clark’s statement that gave the district three years to eliminate the vestiges of discrimination. The court stated he “believed the Supreme Court when they told me to get this school district returned to local control” and that both he and Judge Clark had given KCMSD three years to comply.
Counsel for the class pointed out that recently the monitoring had been less heavy-handed, and that the monitoring committee, which was commonly referred to as the DMC, had been sending things back to the new superintendent to handle. Counsel said there were many ways the committee could lighten its monitoring. Counsel for the class stated that he did not

anticipate that he would be presenting new approaches or anything other than implementation of the five programs already planned for reducing the black-white achievement gap: the curriculum, classroom practices, professional development, assessment, and accountability plans.
The district court then stated that he sensed that both the class and KCMSD were “pretty satisfied that the school district can’t ... go forward with the burden of proof that the gap has narrowed.”1 He said he would need to have a hearing to take testimony from one of the experts who testified at the earlier unitariness hearing and also to hear whether the district was “on track” in implementing the five programs. The court commented that the problem had been the delay in implementation of the five plans to reduce the achievement gap. The court further commented that the track record of the district had not convinced him that KCMSD was putting heart and soul behind implementing the five plans or that KCMSD could get out of the political mode and get into looking after the best interests of the children.
Following this conference, the court filed a written order formally denying the motion for a continuance, stating:
[T]he Court provided for termination of the [DMC] by March 25, 2000. See Order at 21, Doc. # 4575 (August 21, 1997), .... [E]ven if the KCMSD has not attained unitary status, all three Monitors would be removed. See id. At that time, the Court would need to determine the need for new Monitors or even a new remedial structure. Such a determination cannot be made without evidence of the KCMSD’s current status.
. . . . .
... The [unitary status] hearing will begin, as scheduled, on January 3, 2000.
Order of August 26, 1999 at 17–18 (emphasis added).
On October 21, 1999, the State Board of Education voted to withdraw accreditation of KCMSD as of May 1, 2000. In response, KCMSD filed an amended motion for equitable relief on October 25, 1999, seeking to bar the State’s action on the ground that it would interfere with the remedial decree in Jenkins.2 That same *724 day, the court issued an order setting KCMSD’s motion for hearing on November 1 to hear evidence on three enumerated issues: whether the court should (1) rejoin the State as a party; (2) declare void ab initio the action of the Missouri State Board of Education in classifying KCMSD as an unaccredited school district; and (3) enjoin the application to KCMSD of several statutes on which the State Board’s action was based.
The court held the hearing on KCMSD’s motion on November 1–2, 1999. We need not discuss in detail the testimony before the court, except to state that it was directed to the issues outlined by the district court in its order of October 25. The parties agreed in oral argument before the panel that the hearing was not a unitary status hearing. At the conclusion of the proceedings of November 2, the court asked KCMSD’s staff counsel whether the KCMSD board agreed there should be a unitary status hearing in January. Counsel stated that the board voted unanimously to seek a continuance and authorized her to agree to a continuation of the monitoring committee in its current configuration until the end of the 1999–2000 academic year in June.
On November 9, 1999, KCMSD filed a written motion requesting a continuance of the unitary status hearing set for January 3, 2000, and consenting to continued supervision by the DMC. KCMSD further suggested that it would be appropriate to extend the term limits of the DMC beyond March 25, 2000, and to set a hearing at the end of the academic school year, June 3, 2000, to assess the role of the DMC and consider a reduction in the scope of the oversight by that body in the future.
On November 17 the district court issued an order denying KCMSD’s request to rejoin the State as a party and refusing to declare void ab initio the action of the State Board of Education classifying KCMSD as an unaccredited school district.3 After ruling on the motion before it, the court proceeded sua sponte to consider the issue of whether the district was unitary. In light of the nature of our ruling, it is not necessary that we set out in detail the substance of the court’s reasoning. Suffice it to say that, much to the parties’ surprise, the court ended by declaring that the KCMSD had achieved unitary status. The court dismissed the case with prejudice.
I.

[1] The issue before us is whether the district court erred in determining KCMSD to be unitary and dismissing the case without taking evidence or hearing arguments.
In January 1999 the court scheduled a hearing on unitary status for January 2000, and both in a conference with counsel and a written order in August 1999 commented specifically on the necessity for a hearing to evaluate what continuing judicial involvement would be required. The order setting the November 1–2, 1999 hearing limited that hearing to the issues of whether the State should be rejoined as a party and whether the de-accreditation order should be declared void ab initio. The transcript discloses that the testimony and evidence at the hearing were directed to these issues. The court’s inquiry at the conclusion of the November 1–2 hearing as to whether there should be a unitary status hearing in January demonstrates that the court did not consider it had conducted such a hearing. KCMSD’s counsel’s response to this inquiry by the court and its written motion filed November 9, 1999 for a continuance of the unitariness hearing demonstrate that KCMSD did not consider *725 that there had been a hearing on unitary status.
It is evident from what we have said above that KCMSD did nothing to contest the Jenkins class’s statements that KCMSD was not ready to move forward and establish that KCMSD was unitary, and the judge acknowledged as much. From this and from the court’s order limiting the proof at the November 1–2 hearing, the Jenkins class as well as KCMSD went into the hearing with no expectation that unitary status was an issue to be tried.
[2] In Jenkins XIV we held, based upon abundant Supreme Court authority, that once there has been a finding that a defendant established an unlawful dual school system in the past, there is a presumption that current disparities of the sort listed in Green v. County School Board, 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), are the result of the defendant’s unconstitutional conduct. See Jenkins XIV, 122 F.3d at 593. Therefore, the burden of proving unitariness rests on the constitutional violator. Id. at 593–95. Our statement in Jenkins XIV found support in Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), where the Supreme Court stated with respect to racial imbalance in student attendance caused by the unlawful policy of a school system, “The School District bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation.” Other statements in Freeman similarly recognized that the burden was on the district to demonstrate a good faith commitment to compliance with the desegregation plan. Id. at 498– 99, 112 S.Ct. 1430. This presumption places the burden in any hearing on unitary status on KCMSD, including the issue of reduction in student achievement and the achievement gap. KCMSD admittedly made no attempt to demonstrate that unitary status had been achieved.4
This court stated in Booker v. Special School District No. 1, 585 F.2d 347, 352 (8th Cir.1978), “There is no question that in a proper case a federal district court that has issued an injunction may vacate it or modify it if it is established that to continue it in force or without modification would work an inequitable result .” (emphasis added.)
In United States v. Board of School Commissioners, 128 F.3d 507 (7th Cir.1997), the Seventh Circuit faced a situation nearly identical to the one before us today. There, the Board of School Commissioners of the Indianapolis Public School District requested that the judge lift an injunction requiring busing of public school students on the ground that the district had achieved unitary status.5 The district court declined to address the issue of unitary status, but modified its existing order by extending the busing to kindergartners, an issue that had not been raised by the *726 parties. The Seventh Circuit, in an opinion by Chief Judge Posner, stated:
No one asked the judge for this modification; there was no hearing on it. As a result, there is nothing in the judge’s order, or in the record on which it is based, about the respective kindergarten programs, facilities, and capacities in the transferor and transferee areas or about the appropriateness of compelling the busing of such young children against their parents’ wishes and whether they are to be in the same buses with much older children. 128 F.3d at 512. In support of the court’s order that they, like KCMSD here, did not seek in the first place, the appellees pointed out that the district judge had “learned a lot about public school education in Marion County in the thirty years that he has been presiding over this litigation.” Id. The Seventh Circuit responded:
[G]reat knowledge is a temptation as well as a resource: a temptation to blur the separation of powers, to shift the balance between the federal courts and state and local government too far toward the courts, and to disregard procedural niceties, all in fulfillment of a confident sense of mission.
Id.

Although the Seventh Circuit was dealing with expansion of a remedy and we deal with the elimination of one, the principle is the same: procedural niceties equate with due process and must be afforded the parties. As the Seventh Circuit vacated the sua sponte order and remanded for the district court to hold an evidentiary hearing, so should we.
The parties are entitled to notice and an opportunity to prepare for a unitary status hearing. KCMSD would carry the burden of proof at such a hearing, and the Jenkins class would be entitled to an opportunity to respond. Due process of law requires no less. The sua sponte ruling of the district court, in spite of its several earlier orders setting the unitary status hearing some two months later, deprived the Jenkins Class of this constitutional guarantee.
Counsel for KCMSD conceded that the court’s ruling was on a ground not argued by the parties, but insisted that the court was thinking ahead of KCMSD. Having achieved its unexpected release from litigation, KCMSD hastens to give support to the ruling.
KCMSD argues that the district court did not err in declaring KCMSD unitary without benefit of notice, hearing, argument, or other evidentiary presentation. KCMSD cites Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), for the principle that “Parties are not always entitled to a hearing.” Link has little, if any, relevance to this case. In Link, the district court set a pretrial conference and notified counsel. When the lawyer for the plaintiff did not appear at the time set, the court dismissed the action for failure to appear and failure to prosecute. Id. at 629. Link did no more than rule that the dismissal for failure to prosecute was not an abuse of discretion. Id. at 633, 82 S.Ct. 1386.
Link is about sanctions, not about what opportunity parties should be given to present evidence and make argument before a ruling on the merits of their case. It certainly is not about the proper procedure for dismissal of a school desegregation case in which a school district has been adjudged liable for constitutional violations and subjected to a remedial decree. However, Link does have some general applicability to this case insofar as it discussed the circumstances that can justify entry of an order without the opportunity to be heard: “The adequacy of notice and hearing respecting proceedings that may affect a party’s rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct.” 370 U.S. at 332, 82 S.Ct. 1502. Unlike Link, where the attorney had notice of the pretrial conference and should have known that his failure to appear *727 would have consequences, in this case there was no notice to any of the parties, either constitutional violator or victims, that the issue of unitary status was to be considered and decided at the November hearing. To the contrary, there was every assurance that unitary status would not be considered until the scheduled January 2000 hearing, and KCMSD’s requests for continuance strongly suggested that it would not even be in a position to contend that the district was unitary in January 2000. Link demonstrates that simple fairness requires notice and hearing before a decision that dismisses the case.
At oral argument, KCMSD’s counsel suggested that the Jenkins class had the opportunity to present evidence on the unitariness question at the hearing on the class’s motion to stay the dismissal pending appeal. The opportunity to argue a stay motion, with the class having the burden on four discrete issues, which placed the constitutional victims in the position of arguing that the horse should be put back in the barn, does not substitute for a chance to present evidence and argue the merits in a hearing called for the purpose of determining unitariness.
The sua sponte ruling declaring the district unitary and releasing the admitted constitutional violator from further court supervision, without giving notice either to the constitutional violator or the victims or permitting the parties to present evidence and argue these issues, was error.6
II.
The Jenkins class, through its counsel, informed the district court and conceded to this court that the issues in the case had come down to implementation of the five plans (classroom practices, professional development, assessment, accountability and curriculum) crafted to improve student achievement and eliminate the achievement gap between white and black students. Counsel conceded to us, as well as to the district court, that when these five plans have been implemented satisfactorily, he will have no further plans to suggest. The remaining issues have been thus narrowed.
The panel ordered that on remand the judges of the Western District of Missouri should assign this case to another district judge. 205 F.3d at 370. KCMSD objects to the reassignment order and argues that it was improperly entered. Eight of the

judges of this court have determined that the court should not order reassignment on remand.7
We reverse and remand for further proceedings in accordance with this opinion. The mandate shall issue forthwith.
WOLLMAN, Chief Judge, with whom MORRIS SHEPPARD ARNOLD, Circuit Judge, joins, concurring.
I agree with the court that the district court erred in not according the parties the unitary status hearing that had been promised to them. Accordingly, I join in the holding reversing the order appealed from and remanding the case to the district court without reassignment to another district judge.
I write separately only to indicate that I do not wish my agreement with the disposition of the appeal to be read as my endorsement of all that is said within the opinion regarding this court’s earlier opinions *728 in this case, or of all that is said regarding what the School District must show to satisfy the district court that it is entitled to a declaration that it has achieved unitary status. For me, it is enough to say that the district court should have given the parties the hearing it had promised them. The court’s opinion now assures them of that hearing, which I hope will be held in the reasonably near future. As the court notes, class counsel suggested last August that the unitary status hearing be set in late summer of 2000, and the School District suggested last November that a hearing be set at the end of the 1999–2000 academic year, which will occur on June 3.
Whether the School District will be able to carry its burden of demonstrating that it has achieved unitary status, I do not know. By the time a unitary status hearing is held, the School District will have had a number of months to take further steps towards implementing the several remedial programs since the district court’s November 1999 order dismissing the case. What steps the School District has taken during those intervening months may well be a measure of its commitment to its self-proclaimed good-faith efforts to take all practicable steps towards eliminating the provable vestiges of discrimination.
HEANEY, Circuit Judge, with whom McMILLIAN, Circuit Judge, joins, concurring.
I wholly concur in Judge John R. Gibson’s well-reasoned opinion. Taking care to stay on the path established by the precedents of the United States Supreme Court and this court, Judge Gibson correctly holds that the students and parents of the KCMSD were denied due process when the district court declared the school district unitary without affording them notice or a hearing. I write separately to express more fully my reasons for agreeing with the majority opinion and to correct the revisionist history painted by Judge Beam’s dissent.
The Kansas City schools remained segregated until 1986. In that year, we approved a plan to desegregate them after more than forty-five years of slavery—when the state forbid the education of blacks, see Laws of the State of Missouri, 14th General Assembly, 1st Session at 104 (Jefferson City 1847)—and 120 years of segregation—when public schools for black students were not only separate, but inferior to those for white students, see Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). We believed that if the court-ordered plan was fully and faithfully implemented, white city students who attended private and parochial schools would return to the public school system, and white suburban students would be attracted to integrated magnet schools to be established in the city. Importantly, we also stated that a voluntary interdistrict transfer program similar to that in St. Louis should be implemented in Kansas City.
As a result of the 1986 decrees, the facilities have improved, more books and teaching aids are available, class size has been reduced, remedial and compensatory educational programs have been funded and implemented, and educational opportunities for black and white students alike have improved. Although Kansas City’s public schools have improved, they would be better had the State and the KCMSD promptly complied with the Supreme Court’s unanimous instruction in 1955 to “desegregate with all deliberate speed,” id. at 301, 75 S.Ct. 753, or with the Supreme Court’s unanimous opinion in 1968 “that the time for mere deliberate speed has run out .... The burden on the school board today is to come forward with a plan that promises realistically to work and promises realistically to work now,” Green v. County Sch. Bd., 391 U.S. 430, 438–39, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Moreover, the State and the KCMSD could have ensured further improvement for the schools had they promptly and positively *729 complied with the district court’s 1986 desegregation orders.8
The fact is that 165 years of racial discrimination simply could not be overcome in fourteen short years of court supervision,

particularly without the full cooperation of the State, the KCMSD, and the suburban schools. Over this period, none of these entities made any effort to implement a voluntary interdistrict transfer program, thus preventing complete integration of the Kansas City schools.9 Further, the State Board of Education took no responsibility for the KCMSD’s performance, and never once during the fourteen-year period moved to implement the quality education programs called for in Judge Clark’s plan. It simply complied with the district court’s funding orders. In addition, the constant bickering between the State and the KCMSD and the numerous changes in leadership in the Kansas City schools obviously did not inspire community, parental, or student confidence in the school district.
There is no doubt that the KCMSD currently is faced with more than its fair share of difficulties—difficulties brought on in large measure by the State. Shortly after receiving a judgment declaring that it had satisfied its obligations and being dismissed from this case, the State took two dramatic actions that will impair the KCMSD’s ability to provide a quality education for its students. First, it authorized the creation of charter schools in St. Louis and Kansas City, and second, it deaccredited the Kansas City schools effective May 1, 2000 because students have done poorly on student achievement tests.
It is, of course, appropriate for the State to create charter schools, but it is difficult to understand why it authorized the creation of these schools only in the state’s two largest cities, both of which enroll a large majority of black students. Additionally, the KCMSD is required to pay *730 the cost of educating and transporting the students who attend these schools. As a result, Kansas City’s public schools will have a more difficult time providing the trained teachers, the educational programs, and the materials necessary to ensure improved achievement of those students, overwhelmingly black, who remain in the public schools.10
To make matters worse, the de-accreditation of the KCMSD allows students to attend schools in any other district within the state at the KCMSD’s expense. It is noteworthy that the State, which has opposed interdistrict transfers over the past fourteen years, now suddenly approves of such transfers. The only logical explanation for the State’s sudden change of heart is that the cost of transfers must now be paid by the KCMSD rather than the State. There is also a serious question as to whether the suburban schools will accept large numbers of Kansas City’s black students.
Before concluding, I must take issue with some of the comments in Judge Beam’s dissent. First, his assertion that “[s]tudent scores as measured by routine and regularly administered standardized tests have remained static or have declined” is unfounded. From 1987 to 1994, KCMSD student test scores not only improved in most grades, but significantly improved. In 1995, however, the test scores dropped, resulting in those cited by Judge Beam. The reasons for the decline are unexplained in the record and may be explored during the unitary status hearing. Below is a comparison of the test scores from 1988 to 1994.

Grade

1987–88

Math

K

53.4

1

48.9

2

50.6

3

43.4

4

46.0

1993–94 Math 58.6 57.4 55.3 49.5 49.2

Change

1987–88

Reading

5.2+

63.0

8.5+

45.8

4.7+

45.6

6.1+

41.3

3.2+

42.6

1993–94 Reading 65.4(’90) 49.9 46.3 44.2 43.5

Change
2.4+ 4.1+ .7+ 2.9+ .9+

1

48.9

57.4

8.5+

45.8

49.9

4.1+

2

50.6

55.3

4.7+

45.6

46.3

.7+

3

43.4

49.5

6.1+

41.3

44.2

2.9+

4

46.0

49.2

3.2+

42.6

43.5

.9+

5

43.8

50.0

6.2+

43.1

45.4

2.3+

6

42.2

42.4

.2+

40.6

40.6

0

7

40.9

40.5

.4–

42.0

42.6

.6+

8

40.3

41.2

.9+

41.7

42.9

1.2+

1989–90

1993–94

Change

1989–90

1993–94

Change

Math

Math

Reading

Reading

9

37.7

34.3

3.4–

41.4

38.3

3.1–

10

39.7

37.8

1.9–

41.8

40.0

1.8–

11

41.2

41.8

.6+

41.6

41.2

.4–

12

42.0

43.7

1.7+

41.3

42.1

.8+

*731 Second, Judge Beam states that KCMSD “students remain as racially isolated as when the first remedial order was entered.” He notes that in 1986 twenty-five schools had a 90%+ minority enrollment, and in 1999, that number had increased to twenty-seven. His statements are misleading. The number of racially-isolated schools in the KCMSD decreased from twenty-five in 1986 to sixteen in 1996. See KCMSD Student Census Count (Sept. 25, 1996; Jan. 29, 1997; Sept. 24, 1997; Jan. 28, 1998; Sept. 30, 1998; Jan. 27, 1999). Only in the past three years has the number of racially-isolated schools jumped from sixteen to twenty-seven, a 69% increase. Such a substantial increase may indicate that the KCMSD is in the process of resegregating itself.
Third, Judge Beam asserts that $2 billion in tax dollars has been spent since 1985 to fund the plan to desegregate the Kansas

City schools. Accepting the validity of that statement for the purpose of this concurring opinion, I note that over the fourteenyear period, the State and the KCMSD spent an average of $142,800,000 per year or approximately $3,900 per pupil. Of this sum, Kansas City contributed approximately $417 million or $833 per pupil per year.
This expenditure by the State and the KCMSD to desegregate Kansas City’s schools must be viewed in context. As previously noted, black children were denied any education for forty-five years and were provided an inferior, segregated education for 120 years. Although the precise dollar amount is not contained in the record, it is clear that both the State and the KCMSD saved hundreds of millions of dollars during the slavery and segregation periods. The expenditures for desegregation must be balanced against the savings made over 165 years.
Of all the conclusions reached by Judge Beam in his dissent, the most disturbing is that it is beyond the KCMSD’s power, with or without the cooperation of the Missouri State Board of Education, to close the achievement gap between black and white students even to the modest degree required by the district court and now required by this court. The fact of the matter is that achievement levels of Kansas City’s black students have improved and will continue to improve as long as the State and the KCMSD understand that it is their responsibility to do everything reasonably practicable to achieve this result.
As the Supreme Court made clear in Board of Educ. v. Dowell, 498 U.S. 237, 247, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991), withdrawal of federal supervision requires not only compliance with the commands of the Equal Protection Clause, but also a showing “that it [is] unlikely that the Board [will] return to its former ways.” Thus to achieve unitary status, the KCMSD must demonstrate not only that it has eliminated racial isolation to the extent practicable, see Missouri v. Jenkins, 515 U.S. 70, 90, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995), but also that it will maintain those gains when the litigation ends. Absent a unitary status hearing, it could not be determined whether the KCMSD has met these requirements.
No one knows what will occur next, but one thing is certain: Kansas City needs good public schools that offer all students, black or white, rich or poor, a good education. Without a good public school system, all of Kansas City will suffer-the community, the parents, and most of all the students who deserve an education which will enable them to be productive citizens. If the State of Missouri now believes that the KCMSD is not capable of operating the Kansas City schools, it can and should take over the schools and try its hand at giving the students a quality desegregated education. If the State is unwilling to do so-and to this point it has been-it should not penalize the students by dismantling the KCMSD. Rather the State should find a way to work with the KCMSD to *732 improve education and provide the resources necessary to achieve that end.
JOHN R. GIBSON, Circuit Judge, with whom HEANEY and McMILLIAN, Circuit Judges, join, writing separately.
I write separately in concurrence to expand upon the statement that appears in footnote 6 of the court’s opinion and to respond to the dissents.
Both dissents argue that the district court failed to follow the ruling of the Supreme Court in Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ). The district court specifically referred to the directions in Jenkins III that it should “decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to [the] extent practicable” and identify the “incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs.” Jenkins v. Missouri, 959 F.Supp. 1151, 1155 (W.D.Mo.) (quoting Jenkins III, 515 U.S. at 101, 115 S.Ct. 2038), aff’d, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ).
Judge Beam asserts that “Jenkins III does not authorize a purported achievement gap as a vestige.” Infra at 736–37. In fact, Jenkins III neither “authorizes” nor forbids reliance on this type of vestige; rather, it tells us to look at the evidence in the case to determine what part of the gap (if any) was caused by the constitutional violation. See 515 U.S. at 101, 115 S.Ct. 2038. Judge Clark so found, 959 F.Supp. at 1157–65, and we held his findings were not clearly erroneous. See Jenkins XIV, 122 F. 3d at 597–99. Jenkins XIV is thus the law of the case.
Judge Clark’s order faithfully followed Jenkins III.
KCMSD does not now ask us to reconsider Jenkins XIV, nor did the present district judge suggest that he was reconsidering it or applying any exception to the law of the case doctrine. Further, when the case was before us in 1997, KCMSD sought and supported the ruling that the achievement gap was a vestige of segregation. In its Jenkins XIV brief, KCMSD stated: “KCMSD’s expert, whom the court declared credible, established the causal connection between de jure segregation and current minority student achievement.” Brief at 36. “KCMSD presented substantial evidence that the student achievement

vestige continues, consistent with Jenkins III standards.” Brief at 35. KCMSD benefitted from the Jenkins XIV ruling, which allowed it to retain the $4.96 tax levy imposed to fund the remedy for the continuing constitutional violation. See 959 F.Supp. at 1154–55. KCMSD, having sought that ruling and having enjoyed the benefits of it, does not now seek to repudiate it.
Judge Loken states that Judge Clark “did not make the critical finding that any achievement gap among students within the KCMSD was also a vestige of discrimination with a causal link to the de jure violation being remedied.” Infra at 743 (internal quotation omitted). Judge Clark stated: “The Court finds that Dr. Trent’s test is reliable and accurately identifies the incremental portion [of the achievement gap] attributable to the prior de jure discrimination.” 959 F.Supp. at 1164. Later, in summing up his findings, Judge Clark wrote: “The Court has found that 13% of the initial gap and 13% of the increase in the gap may be traced to the prior discrimination within the KCMSD.” Id. at 1165.
Judge Loken contends that Judge Clark should not have imposed the burden of proof on the constitutional violators to show that the achievement gap was not caused by the constitutional violations. This burden of proof question was fully considered and decided in our 1997 opinion. See Jenkins XIV, 122 F.3d at 593–95. In KCMSD’s brief filed with this court in 1997, it argued that “[t]he burden of demonstrating ... that unitary status exists, rests squarely with the constitutional violator.” *733 Brief at 29. Although this argument dealt with the State as a constitutional violator, KCMSD has admitted that it is also a constitutional violator and that the burden of proof rests with it. At no point in the proceedings below or in this court has KCMSD taken any position other than that it bears the burden of proof to demonstrate unitary status.
BEAM, Circuit Judge, with whom BOWMAN and LOKEN, Circuit Judges, join, dissenting.
After twenty-three years of federal court supervision, the educational program of the Kansas City Missouri School District (KCMSD) is in shambles. Its students remain as racially isolated as when the first remedial order was entered by the district court on June 14, 1985.11 Student scores as measured by routine and regularly administered standardized tests have remained static or have declined,12 and this has occurred even though over two-billion tax dollars have been spent since 1985 on the remedial plan alone, with total educational spending averaging more than $9,000 per student per year (in addition to millions of dollars in capital expenditures). I am confident that this average per pupil amount is well above that spent by any other school district in Missouri for the same period.13 Until 1996, attorneys for the Jenkins class freely roamed the classrooms, hallways and playgrounds monitoring, observing, talking and projecting themselves into the work and educational lives of school principals, faculty, staff and students. Appellants’ brief at 5. Until very recently, a Desegregation Monitoring Committee under the direct control of the district court involved itself in the day-to-day activities of the school system. Joint Appendix at 1109–11. Unremarkably, the Office of Superintendent of Schools, the supposed chief executive of the school system, has been a revolving door and once the office was empty for a significant period of time. Jenkins v. Missouri, 959 F.Supp. 1151, 1178 (W.D.Mo.1997) (Jenkins VIII ), aff’d, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ); Jenkins v. School Dist. of Kansas City, 73 F.Supp.2d 1058, 1072 (W.D.Mo.1999) (Jenkins X ). Finally, the State has now designated the KCMSD as unaccredited.
As regrettable and tragic as this situation is, none of the parts in this parade of *734 problems rises to the level of past or present invidious discrimination remediable by a federal court. In short, a school district in shambles is not a constitutional violation.14
*735 So after fifteen years, we are called upon to decide only one issue-whether the district court was correct in dismissing this costly and seemingly endless case without holding an evidentiary hearing.15
I agree with Judge Loken that in 1997 both the district court and this court violated the Supreme Court’s mandate in Jenkins III by shifting the burden of proof on the issue of whether an achievement gap is a vestige of a de jure segregated school system. I write separately only to emphasize that even if such an achievement gap can be correctly viewed as a vestige of prior discrimination, the district court had more than sufficient evidence in the record to rule that KCMSD had shouldered its burden of showing that it had eliminated the gap to the extent practicable. This entitled KCMSD to a determination of unitary status.

Unitary status (and final relief from court control) is achieved when the vestiges of prior discrimination have been eliminated “to the extent practicable.” Missouri v. Jenkins, 515 U.S. 70, 102, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ) (emphasis mine). The class now concedes that the only remaining vestige in this case, if any, lies within a portion of a blackwhite educational achievement gap that exists among the students of KCMSD. This theory was conceived by Dr. William Trent and adopted by the district court in Jenkins VIII after a three-week-long hearing held to determine, in part, the State’s motion for unitary status of KCMSD. 959 F.Supp. at 1158.
As a threshold matter, I note that any evidence that such a vestige exists in KCMSD is dubious at best. Even a cursory examination of the bases for Dr. Trent’s opinions reveal them to be nothing more than guesses and speculation. This court’s reliance on a black-white achievement gap to measure lingering effects of invidious segregation runs contrary to the finding of every other Circuit Court that has considered the issue. See United States v. City of Yonkers, 197 F.3d 41, 54–55 (2d Cir. 1999); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537–38 (7th Cir.1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776–77 (3d Cir.1996). In fact, Dr. Trent’s testimony on this purported phenomenon was rejected by the First Circuit. See Wessmann v. Gittens, 160 F.3d 790, 804 (1st Cir.1998). Similar evidence based upon Dr. Trent’s *736 methodology was held inadmissible under Daubert standards by the Seventh Circuit. See People Who Care, 111 F.3d at 537. Nonetheless, this court clings to the claimed existence of such a vestige of discrimination.16
Contrary to the court’s position in Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997), Jenkins III does not authorize a purported achievement gap as a vestige. Although not an exhaustive list of the vestiges of discrimination, student achievement is not among the six factors17 required for unitary status under Green v. County School Bd. of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In fact, raising a red flag on the problematic nature of an achievement gap *737 as a factor, the Supreme Court noted that many “demographic changes independent” of de jure segregation could contribute to a gap. Jenkins III, 515 U.S. at 102, 115 S.Ct. 2038. The Court stated “[i]nsistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own.” Id.
The frailty of an achievement gap as a vestige is dramatized by the testimony of two of the educational experts heard at the January 1997 unitary status hearing—Dr. Trent and Dr. David Armor.18 Both experts acknowledged that a gap exists nationwide, (Transcript at 1391–92 [Trent] ) (Transcript at 437 [Armor] ) and Dr. Armor pointed out the gap in Kansas City was lower than the national average gap and lower than the gap in suburban schools surrounding KCMSD. Transcript at 499 & 502–03. Many of the other schools with a similar or greater gap have never been found guilty of race discrimination of any sort. Id. at 502–03. Indeed, this court has determined the suburban Kansas City Schools were discrimination free. See generally Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc).
Assuming, for the sake of discussion, that the achievement gap is a vestige of discrimination, I turn to the unsupportable position of the class and the court on how to narrow the gap. KCMSD has identified five areas that supposedly contribute to low achievement by its minority students. These areas are (1) expectations by teachers; (2) lack of a core curriculum; (3) ineffective staff development; (4) lack of a comprehensive assessment system; and (5) the absence of accountability at all levels. KCMSD created, and had the court approve, five plans to address these factors (classroom practices, professional development, assessment, accountability, and curriculum). Each of these plans is now purportedly at a different stage of its implementation, ranging from nearly complete to barely underway.19 All parties *738 concede that some of the plans can never be fully implemented because the idea of what “good” educational practices are is always evolving. The class also concedes the remaining obstacle to unitary status is the implementation of the plans to a “satisfactory” level, whatever that may be. However, there is a more fundamental problem.
The undisputed evidence offered at the 1997 hearing shows that non-minority and minority students respond equally to effective teaching and innovative educational techniques.20 Transcript at 1411–12 (Trent), Transcript at 498 (Armor) and Transcript at 271 (Dr. Christine Rossell). The implemented and to-be-implemented programs at KCMSD will, according to the testimony, raise the test scores of all KCMSD students without regard to race. This laudable and sought after educational result occurs because, as the Supreme Court noted in Jenkins III, a “rising tide lifts all boats.” Jenkins III, 515 U.S. at 102, 115 S.Ct. 2038. In other words, under the current plan all KCMSD students will improve at the same rate in normalized curve equivalents (NCEs). Clearly then, the evidence shows that the presently approved court educational plan, by itself, will not impact the achievement gap. Without influence from factors well beyond the control of KCMSD, the approach now championed by the class and the court will only serve to make the goal unattainable. In short, when the gap is eliminated, if it ever is, it will not be because of federal court supervision of curriculum and classroom instruction. It will be because of societal changes that are not achievable through use of the remedial power and authority of the federal courts.21

Accordingly, the proposed use of an achievement gap to measure lingering discrimination is a misconceived idea, and use of it will never allow KCMSD to reach a “satisfactory” level in the eyes of the class and, perhaps, some members of this court. Under this scenario, federal court supervision will continue for, perhaps, another twenty-three years. This, of course, is not *739 a lawful application of the clear mandates of the Supreme Court in Jenkins III.
Even if the plans adopted by the court could conceivably close the achievement gap, KCMSD has fulfilled its constitutional obligations to remedy the discrimination to the extent practicable. Under this contingency, the issue before the court is whether the plans have been implemented satisfactorily. The district court’s November 1–2, 1999, hearing and the January 7, 2000, hearing demonstrate that they have been. After the November hearing, the district court found the State’s accreditation process is: “(1) based on standards that are fully consistent with the Court’s desegregation orders; (2) an attempt to infuse accountability in the KCMSD that is fully consistent with the Court’s desegregation orders; and (3) unlikely to engender the high degree of negative consequences that could prevent compliance with the United States Constitution.” Jenkins X, 73 F.Supp.2d at 1077.
These holdings have not been appealed by any of the parties. And, if they have been, they are clearly supported by the record. The court heard testimony from Dr. Marilou Joyner of Missouri’s Department of Elementary and Secondary Education, which is responsible for evaluating the school district and making recommendations about accreditation. Dr. Joyner testified that all five of the court-approved plans conform to state accreditation requirements. Additionally, KCMSD offered evidence and neither the class nor the court has disputed the showing that it was firmly committed to continue with the implementation of the plans approved by the district court as the best way to meet the state standards-a necessary step to avoid eventual implementation of the de-accreditation threat.
In Freeman v. Pitts, 503 U.S. 467, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992), the Supreme Court stated that one of the factors that should inform the court’s discretion in deciding unitary status was “whether retention of judicial control is necessary or practicable to achieve compliance with the decree.” Id. at 491, 112 S.Ct. 1430. Additionally, as we have said in other discrimination cases, when a state takes independent action that will address the court’s remedial concerns, the court should step aside. See Liddell v. Special Sch. Dist., 149 F.3d 862, 870–71 (8th Cir.1998). These findings make it clear the district court’s presence in the litigation is no longer necessary to achieve constitutional objectives and the State has adequately addressed the court’s remaining remedial concerns. As a result, the district court was correct in finding that unitary status had been achieved.
In an effort to dodge or obfuscate the real issues of the case, the class, as earlier indicated, complains that it was a violation of due process and reversible error for the court to dismiss the case without holding a previously contemplated and announced evidentiary hearing.22 This argument is specious and is not supported by the law of this or any other circuit. At the remedy stage of a school desegregation case, the district court proceeds under its equitable authority, controlling the outcome of the litigation with a series of injunction-like orders. This court, in past opinions in this case, has described the broad and continuing equitable authority of the district court as “ ‘characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ Milliken v. Bradley, 433 U.S. 267, 288, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (quoting Brown v. Board of Educ., 349 U.S. 294, 300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955)).” Jenkins XIV, 122 F.3d at 600; see also Jenkins v. Missouri, 931 F.2d 470, 482 (8th Cir.1991).
Furthermore, an evidentiary hearing was not required, as the district court had all the requisite evidence before it for *740 making a reasoned determination. In particular, a district court may take such action if the court sees that the underlying factual or legal issues have changed. See United States v. Texas, 158 F.3d 299, 312 (5th Cir.1998); Alberti v. Klevenhagen, 46 F.3d 1347, 1366 (5th Cir.1995); United States v. City of Miami, 2 F.3d 1497, 1506 (11th Cir.1993). “ ‘Sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen.’ ” Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 380, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) (quoting Railway Employees v. Wright, 364 U.S. 642, 647, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961)). Such circumstances have obviously arisen in this case.
On October 21, 1999, well after the court’s discussions of a potential January 3, 2000, hearing, a major event changed the nature and scope of this litigation. The Missouri State Board of Education voted to withdraw educational accreditation of KCMSD as of May 1, 2000, and insert itself into the educational picture in Kansas City. As a result of the State’s action, the KCMSD quickly made a motion in the district court to have this action declared void ab initio. The district court responded immediately and held the evidentiary hearing of November 1 and 2, 1999.
The State’s appearance through the accreditation process dramatically altered the landscape of the litigation. With court-

approved plans and State requirements in accord, one with the other, as earlier noted, every item of evidence necessary to determine unitary status was in place before the district court. Thus, the court’s unitary status holding, based upon the entire record, was clearly correct. An educational gap that purportedly represents a vestige of long eliminated de jure segregation has not been established and even if it has been, with currently approved educational programs, it will not be and, indeed, cannot be mitigated, much less eradicated. The idea that KCMSD has now, after twenty-three years, done everything practicable to “remedy the [earlier] violation to the extent practicable,” is not clearly erroneous-it is clearly correct. For the court to have held otherwise on this record would have been an abuse of discretion.
All current requirements being imposed by this litigation extend well beyond any lawful remedies for violations of distant acts of de jure segregation. And, this case is not about a federal district judge who made a procedural mistake by not holding yet another evidentiary hearing entailing countless thousands of additional taxpayer dollars for court time, staff time, attorney fees and expert witnesses. It is about matters that a federal court no longer has a legitimate right to involve itself in.
It is long past the time to follow the admonition of the Supreme Court in Jenkins III and “ ‘restore state and local authorities to the control of a school system that is [now] operating in compliance with the Constitution.’ ” 515 U.S. at 101, 115 S.Ct. 2038 (quoting Freeman, 503 U.S. at 489, 112 S.Ct. 1430). “Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system.” Freeman, 503 U.S. at 490, 112 S.Ct. 1430.
The KCMSD is unitary. I would affirm the district court.23
*741 ADDENDUM
IOWA TEST OF BASIC SKILLS TEST SCORES

Grade

1987–88

Math

K

53.4

1

48.9

2

50.6

3

43.4

4

46.0

5

43.8

1998–99

Change

1987–88

Math

Reading

59.6 (’95)

6.2

63.0

48.3 (’96)

–0.6

45.8

47.2 (’95)

–3.4

45.6

36.9

–6.5

41.3

40.9 (’98)

–5.1

42.6

40.1

–3.7

43.1

1998–99

Change

Reading

65.4 (’90)

2.4

47.5 (’96)

1.7

42.5 (’95)

–3.1

37.2

–4.1

39.0 (’98)

–3.6

39.8

–3.3

2

50.6

47.2 (’95)

–3.4

3

43.4

36.9

–6.5

4

46.0

40.9 (’98)

–5.1

5

43.8

40.1

–3.7

6

42.2

36.5 (’98)

–5.7

7

40.9

37.7 (’98)

–3.2

8

40.3

36.2

–4.1

1989–90

1997–98

Math

Math

9

37.7

30.8

–6.9

10

39.7

35.1

–4.6

11

41.2

39.6 (’99)

–1.6

12

42.0

41.7

–0.3

45.6 41.3 42.6 43.1 40.6 42.0 41.7 1989–90 Reading 41.4 41.8 41.6 41.3

42.5 (’95)

–3.1

37.2

–4.1

39.0 (’98)

–3.6

39.8

–3.3

37.6 (’98)

–3.0

38.5 (’98)

–3.5

37.8

–3.9

1997–98

Reading

34.0

–7.4

37.2

–4.6

37.5 (’99)

–4.1

41.4

0.1

Missouri Assessment Program Math Results

Step 1

Progressing

Fourth

199

15%

7

199

13%

8

199

11%

9

Eighth

199

60%

7

199

55%

8

199

46%

9

Tenth

199

68%

7

199

68%

8

199

65%

9

42% 40% 39%
29% 30% 40%
21% 22% 26%

Nearing Proﬁciency
29% 35% 38%
6% 11% 12%
8% 9% 7%

Proﬁcient

Advanced

11%

3%

10%

1%

10%

1%

3%

0%

3%

1%

2%

0%

3%

0%

1%

0%

2%

0%

199

68%

21%

8%

7

199

68%

22%

9%

8

199

65%

26%

7%

9

3%

0%

1%

0%

2%

0%

Missouri Assessment Program Social Studies Results (1999)

Step 1

Progressing

Fourth Eighth Eleventh

29% 48% 56%

39% 20% 21%

Nearing Proﬁciency 24% 19% 19%

Proﬁcient

Advanced

7%

1%

12%

2%

3%

1%

Missouri Assessment Program Communication Arts Results

Step 1

Progressing

Third

199

29%

8

31%

199

26%

9

32%

Seventh

199

48%

8

23%

199

37%

9

27%

Eleventh

199

47%

8

19%

199

42%

9

23%

Nearing Proﬁciency
29% 31%
18% 24%
25% 25%

Proﬁcient
11% 11% 11% 11% 8% 9%

Advanced
0% 0% 1% 1% 1% 0%

Missouri Assessment Program Science Results

Missouri Assessment Program Science Results

Step 1

Progressing

Third

199

20%

8

27%

199

20%

9

30%

Seventh

199

58%

8

31%

199

54%

9

29%

Eleventh

199

59%

8

27%

199

47%

9

38%

Nearing Proﬁciency
34% 35%
9% 11%
12% 14%

Proﬁcient
16% 13% 3% 5% 1% 1%

Advanced
2% 1% 0% 1% 0% 0%

*743 LOKEN, Circuit Judge, with whom BOWMAN and BEAM, Circuit Judges, join, dissenting.
I respectfully dissent. In Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ), the Supreme Court held that much of the remedy imposed by the district court and upheld by a panel of this court went beyond the permissible bounds of an equitable school desegregation decree. The Court defined the scope of an appropriate remedy:
the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a systemwide reduction in student achievement and the existence of 25 racially identifiable schools with a population of over 90% black students.
515 U.S. at 90, 115 S.Ct. 2038. Among the remedial measures the Court reversed was a mandate to fund “quality education programs.” In rejecting this court’s attempt to fill in the gaps in the district court’s analysis of that issue, the Supreme Court cautioned:
Although the District Court has determined that “[s]egregation has caused a system wide reduction in achievements in the schools of the KCMSD,” 639 F.Supp. at 24, it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs.
515 U.S. at 101, 115 S.Ct. 2038 (emphasis in original). The Court remanded, instructing the district court “that its end purpose is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.’ ” Id. at 102, 115 S.Ct. 2038, quoting Freeman v. Pitts, 503 U.S. 467, 489, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992).
On remand, the district court took up the question of an alleged achievement gap between black and white students in the KCMSD. Its prior findings as to vestiges—as determined by the Supreme Court—were limited to finding a systemwide reduction in student achievement. Yet the district court on remand did not make the critical finding that any achievement gap among students within the KCMSD was also a vestige of discrimination with “a causal link to the de jure violation being remedied.” Jenkins III, 515 U.S. at 96, 115 S.Ct. 2038. Instead, the district court held that “the plaintiffs are entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests on the defendants.” Jenkins v. Missouri, 959 F.Supp. 1151, 1157 (W.D.Mo.1997). Having ducked the critical causation question, the district court proceeded to quantify a present “race effect” of 2.6 normalized curve equivalents (NCEs) and order that it be remedied. A panel of this court again affirmed. Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997).24
*744 In my view, the district court and this court violated the Supreme Court’s law of the case by deciding in 1997 to presume that a present-day achievement gap is a vestige of the de jure segregated school system maintained under Missouri law prior to 1954. The result of shifting the burden of proof was to place on KCMSD the impossible burden of proving that no part of the present-day gap—which ironically is significantly less in Kansas City than the national norm, see 959 F.Supp. at 1158—is causally linked to de jure segregation in the distant past. See Coalition to Save Our Children v. Board of Educ., 90 F.3d 752, 776–77 (3d Cir.1996); see also Freeman v. Pitts, 503 U.S. 467, 503–06, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (Scalia, J., concurring).25 The Supreme Court has only placed this burden of proof on defendants when resolving claims that lingering segregation or racial imbalance were vestiges of de jure segregation.26 Even in those cases, the Court has stated that the causal presumption diminishes “[a]s the de jure violation becomes more remote in time.” Freeman, 503 U.S. at 496, 112 S.Ct. 1430; see id. at 503–06, 112 S.Ct. 1430 (Scalia, J., concurring); Jenkins III, 515 U.S. at 118, 115 S.Ct. 2038 (Thomas, J., concurring).
By shifting the burden of proof on an ancillary issue such as student achievement, the district court created a regime of federal court supervision that will seemingly never end. The case was then assigned to a new district judge, who recognized that the achievement gap mandate, improperly imposed by his predecessor and this court some three years ago, frustrates the Supreme Court’s directive to promptly restore this school district to local control.27 Accordingly, when KCMSD virtually admitted that it could not meet the 2.6–NCE mandate for the foreseeable future, the district court declared unitary status. Sadly, this court now decides to perpetuate its disregard for the Supreme Court’s instructions in Jenkins III by requiring more open-ended litigation over whether KCMSD has complied with an order to remedy a present-day condition that has never been proved to be a vestige of prior de jure segregation. I would affirm.

All Citations 216 F.3d 720, 145 Ed. Law Rep. 623

Footnotes

1

This statement came after the following exchange. When the class counsel said in court there was “widely shared

agreement” that KCMSD had not done everything practicable to eradicate the achievement gap, KCMSD did not

object to this representation. KCMSD’s counsel said: “[W]e have a sense at the moment ... that the district would

have an uphill ﬁght in January.”

2

In KCMSD’s motion for relief from the de-accreditation action, it asked the court to stay the de-accreditation until

the ﬁve remedial plans had been fully implemented.

3

The action of the State Board of Education was effective May 1, 2000. KCMSD has two years in which to regain

accreditation and, if it does not, further serious consequences, including dissolution of the district, may follow.

4

In Jenkins XIV, we pointed to the ﬁnding of the district court in the ﬁrst remedial order decisions that “the inferior

education indigenous of the state-compelled dual school system has lingering effects in the Kansas City, Missouri

School District.” 122 F.3d at 594 (quoting Jenkins v. Missouri, 593 F.Supp. 1485, 1492 (W.D.Mo.1984)). We also

quoted later ﬁndings, “Segregation has caused a system wide reduction in student achievement in the schools of

the KCMSD.... [The] education process has been further ‘bogged down’ in the KCMSD by a history of segregated

education. Too often, as a result, a higher percentage of black students are among the lower achievers.” Id.

(quoting Jenkins v. Missouri, 639 F.Supp. 19, 24, 28 (W.D.Mo.1985), aff’d as modiﬁed, 807 F.2d 657 (8th Cir.

1986), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987)). The district court found that the adverse

effect on minority student achievement still persisted in 1997 in the form of an achievement gap; we held that

ﬁnding was not clearly erroneous. Id. at 597–99.

5

The Seventh Circuit’s opinion stated that a district wanting to phase out a desegregation decree could be

permitted to do so only upon presenting evidence that the existing order had outlived its usefulness. See 128 F.3d

at 510.

6

The court has not found it necessary today to reach the merits of the district court’s order. Both dissents, however,

are focused on the merits of the case, and almost exclusively on the 1997 opinions of the district court and this

court, Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo.), aff’d, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV ). After the

decision in Jenkins XIV, none of the parties asked for rehearing or ﬁled a petition for certiorari. The parties before

us have not raised the issues discussed in the dissents. Indeed, both parties have accepted Jenkins XIV as the

standard under which the unitary status issue must be considered.

7

Judges Heaney, McMillian, John R. Gibson, and Bye would order reassignment of the case on remand to another

district judge.

8

Among the programs approved by the district court and this court were library, teaching load, and curriculum

improvements; additional counselors; summer school programs; full-day kindergarten; before and after school

tutoring; and early childhood development programs. Also approved were a student achievement program and a

class size reduction. The programs were designed to remedy the effects of the dual system and to bring about

systematic educational improvements. Jenkins v. Missouri, 807 F.2d 657, 682–83 (8th Cir.1986) (en banc)

(Jenkins I ).

9

In Jenkins I, we stated:

A voluntary interdistrict transfer program is one that has great potential for improving the racial balance in the

Kansas City area. The experience in St. Louis with such a plan seems to have been favorable. The district

court is correct in its holding that such a program cannot be mandatorily imposed upon the record before the

court. Whether a refusal of a district to participate in such a voluntary program may evidence discriminatory

intent and thus be an independent basis for further relief and mandatory participation is an issue that we

should not anticipate.

807 F.2d at 683 n. 30. In his concurrence, Judge Arnold stated:

I would hold that the District Court erred in concluding that the SSDs cannot be required to participate in an

interdistrict remedy for interdistrict school segregation caused by the State’s constitutional violations in the

area of housing. The case should be remanded to the District Court for determination of the current

8

Among the programs approved by the district court and this court were library, teaching load, and curriculum

improvements; additional counselors; summer school programs; full-day kindergarten; before and after school

tutoring; and early childhood development programs. Also approved were a student achievement program and a

class size reduction. The programs were designed to remedy the effects of the dual system and to bring about

systematic educational improvements. Jenkins v. Missouri, 807 F.2d 657, 682–83 (8th Cir.1986) (en banc)

(Jenkins I ).

9

In Jenkins I, we stated:

A voluntary interdistrict transfer program is one that has great potential for improving the racial balance in the

Kansas City area. The experience in St. Louis with such a plan seems to have been favorable. The district

court is correct in its holding that such a program cannot be mandatorily imposed upon the record before the

court. Whether a refusal of a district to participate in such a voluntary program may evidence discriminatory

intent and thus be an independent basis for further relief and mandatory participation is an issue that we

should not anticipate.

807 F.2d at 683 n. 30. In his concurrence, Judge Arnold stated:

I would hold that the District Court erred in concluding that the SSDs cannot be required to participate in an

interdistrict remedy for interdistrict school segregation caused by the State’s constitutional violations in the

area of housing. The case should be remanded to the District Court for determination of the current

interdistrict effects, if any, of the State’s housing violations. Any SSDs implicated by this analysis should be

obliged to participate in an appropriately tailored interdistrict remedy.

Id. at 687 (Arnold, J., concurring). Furthermore, Judge Ross stated:

At the time of argument it was my understanding that a voluntary interdistrict program, patterned along the

lines of the St. Louis program was a real possibility. It would now appear that some of the districts are not

moving forward with this plan.

In my opinion the failure to organize and implement this program would be a very signiﬁcant factor in

determining discriminatory intent in the future litigation which is certain to result from the further processing of

this case. The St. Louis program would be a useful model for the actions to be taken by all the Missouri

districts which are parties to this action.

Id. (Ross, J., concurring).

10

If the number of Kansas City public school children enrolled in the charter schools remains constant in FY 2001,

the KCMSD will be limited to spending $8,240 per pupil unless it is able to raise additional money through local

taxation. (J.A. at 1041.) Moreover, witnesses for the KCMSD testiﬁed that they expect 3,200 pupils to transfer to

other districts at a total cost to the KCMSD of $35,892,000. (J.A. at 1043.) If this number of students transferred,

the KCMSD will have just $7,450 per pupil available to educate its remaining 28,000 students. (J.A. at 1045.)

Contrary to Judge Beam’s assertion that Kansas City per pupil spending is well above that spent by any other

school district in Missouri, the fact is that in the 1998–99 school year, the last year for which statistics are

available, several school districts in the State of Missouri expended more per pupil than did the KCMSD,

including Brentwood, $8,735; Clayton, $11,239; Ladue, $9,938; and Center, $8,583. See Ofﬁce of Social and

Economic Data Analysis, University of Missouri, <http:// www.oseda.missouri.edu/countypage>. Since the

1994–95 school year, KCMSD’s per pupil spending has declined by 21%, while per pupil spending in the

above-cited school districts increased on average 19.5%. See id.

11

In 1986, the KCMSD had a minority student population of 73.5% with twenty-ﬁve schools having greater than

90% minority enrollment. See Jenkins v. School Dist. of Kansas City, Missouri, 73 F.Supp.2d 1058, 1069

(W.D.Mo.1999) (Jenkins X ). As of January 1999, KCMSD had a minority student population of 81.8% and twenty-

seven schools had greater than 90% minority enrollment. See id. However, because the Supreme Court in

Missouri v. Jenkins, 515 U.S. 70, 98, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995) (Jenkins III ), eliminated the

“desegregative attractiveness” remedial plan, KCMSD could no longer operate its extensive magnet school

program nor could it provide transportation for non-resident students. Given what the Supreme Court said it could

use as a remedy, and an increase of the minority population of 8.3%, KCMSD has done everything practicable to

reduce the racial isolation in the KCMSD and no one has disputed this conclusion in this appeal.

12

The KCMSD provided the Iowa Test of Basic Skills scores for every grade level beginning in the 1987–88 school

year continuing until at least the 1994–95 school year with the exception of kindergarten. I have placed the

earliest and most recent scores in table form, noting the change in average test scores over this period.

The Jenkins class provided the Missouri Assessment Program results. The students are placed in one of ﬁve

categories, and the percentage of students placed in each category for each of the testing years is noted in

table form. Both tables are in the addendum to this opinion.

13

The per pupil expenditures (exclusive of amounts for capital improvements) were as follows: 1993–$8,626; 1994–

$9,646, 1995–$10,308; 1996–$9,320; and in 1997–$8,688. Joint Appendix at 971 and 1054. In 1999, for instance,

KCMSD had a per pupil expenditure of $8,239. See Missouri Department of Elementary and Secondary

Education, 1999 School District Report Card, http:// www.dese.state.mo.us/reportsummary/districts/048078.html.

In 1999, the average expenditure per pupil in Missouri was $5,925. See id.

14

In his concurrence Judge Heaney contends that I paint a “revisionist history” of this litigation. While I sincerely

wish that I could revise the history of this troublesome case, I have not done so. I have, instead, accurately

reﬂected the record that was before Judge Whipple and have amply provided citations that support my

statements and conclusions.

Judge Heaney discusses the sordid history of slavery in America, a circumstance we all regret, and discusses

table form. Both tables are in the addendum to this opinion.

13

The per pupil expenditures (exclusive of amounts for capital improvements) were as follows: 1993–$8,626; 1994–

$9,646, 1995–$10,308; 1996–$9,320; and in 1997–$8,688. Joint Appendix at 971 and 1054. In 1999, for instance,

KCMSD had a per pupil expenditure of $8,239. See Missouri Department of Elementary and Secondary

Education, 1999 School District Report Card, http:// www.dese.state.mo.us/reportsummary/districts/048078.html.

In 1999, the average expenditure per pupil in Missouri was $5,925. See id.

14

In his concurrence Judge Heaney contends that I paint a “revisionist history” of this litigation. While I sincerely

wish that I could revise the history of this troublesome case, I have not done so. I have, instead, accurately

reﬂected the record that was before Judge Whipple and have amply provided citations that support my

statements and conclusions.

Judge Heaney discusses the sordid history of slavery in America, a circumstance we all regret, and discusses

the unequal and unlawful dual school system that existed in Missouri prior to 1954. These facts, of course, are

relevant, if at all, only to the initial matter of unconstitutional segregation, a holding long since determined and

ratiﬁed and not now at issue in this or any recent appeal.

Judge Heaney also faults the State of Missouri for its alleged failure to embrace his pedagogical and social

vision of how the Kansas City school system should have been operated since 1986, a failure of acceptance

shared, at least in part, by many school administrators and other local public ofﬁcials, parents of students of all

races and numerous teachers and their collective bargaining representative. However, as the Supreme Court

pointedly noted in Jenkins III, most of Judge Heaney’s vision falls well outside of the remedial authority of the

federal court in this speciﬁc litigation or any other similar litigation for that matter. See generally, 515 U.S. 70,

115 S.Ct. 2038, 132 L.Ed.2d 63. Further, since the State was dismissed from this appeal by Judge Whipple’s

predecessor in 1997, a decision that was afﬁrmed by this court, Judge Heaney’s disapproval is directed toward

a non-party and, perhaps, this court because it rejected several of his proposals on en banc review many years

ago. See Jenkins VIII, 959 F.Supp. 1151, aff’d, 122 F.3d 588; Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986)

(en banc) (Jenkins I ). Finally, Judge Heaney expresses disapproval of the actions of the suburban Kansas City

schools and refers to “voluntary” programs undertaken in St. Louis. However, his statement underscores an

important point-suburban Kansas City school districts, over Judge Heaney’s objection, were speciﬁcally found

to be free of constitutional violations and were duly dismissed from this litigation. See Jenkins I, 807 F.2d at

672–73. On the other hand, St. Louis suburban schools, under threat of a ﬁnding of constitutional complicity by

the Court of the Eastern District of Missouri, entered into a settlement agreement, enforceable by the district

court, in which a program of state-funded interdistrict transfers were stipulated to and required. See Liddell v.

Missouri, 731 F.2d 1294, 1302–09 (8th Cir.1984) (en banc).

Judge Heaney, in footnote 10, questions my taxing and spending ﬁgures for the educational operations of the

KCMSD. First, he cites single-year ﬁgures for the 1998–1999 school year for three afﬂuent suburbs of St. Louis

and one small afﬂuent district near Kansas City, while I cite long-term average comparisons for KCMSD and the

school districts across Missouri. But, to consider the 1998–1999 school year with Judge Heaney, KCMSD spent

$8,239 for school operations, excluding capital improvements, while the surrounding suburban school districts

spent an average of $5,834 per pupil. In general, no matter how you manipulate isolated ﬁgures, there is simply

no doubt that over the last fourteen years, KCMSD has spent substantially more per student per year than any

other Missouri school district.

Judge Heaney also seems to misunderstand and, therefore, misapply my discussion of the two billion dollars

estimate for the cost of the court’s desegregation plan. He misses the point that the two billion dollars

mentioned is for the desegregation plan alone and this amount is above and beyond the usual annual

expenses for educational operations of KCMSD. Indeed, excluding capital expenditures, KCMSD has had total

operational expenditures of approximately one billion dollars since July 1, 1997, alone. A very recent illustration

of Judge Heaney’s erroneous calculations can be found in the record for operational expenditures by KCMSD

from July 1, 1997, through June 30, 1999. The two years of expenditures, excluding capital improvements,

amounted to $679,196,524, or, $9,426 per student per year and the record establishes that per student costs

for earlier years of the desegregation plan have almost always equaled or exceeded these more recent ﬁgures.

This is, of course, an amount far different from Judge Heaney’s fourteen-year unsupported calculation of

$3,900 per pupil.

In a similar vein, Judge Heaney takes me to task for my accurate statement that educational test scores have

“remained static or have declined” during the life of the desegregation plan. In rebuttal, he cites results from

school year 1993–1994. What he does not note is that at the achievement gap hearing in 1997, Dr. William

Trent, Judge Clark’s preferred expert, noted that some time during the 1994–1995 school year “a new test

form” with “different scaling” was used. See Transcript at 1289. Similar evidence is contained elsewhere in the

record. I submit that such changes make year-to-year comparisons problematic. However, without dispute, test

scores experienced a steady decline from the year cited by Judge Heaney until at least the end of the 1999

school year. In any event, although changes occurred during this period, the beginning and ending ﬁgures in

my table are absolutely correct as is my conclusion that recurring ITBS, TAP and MAP scores indicate that

advances in educational achievement did not occur over time especially in the upper elementary grades and in

high school.

Finally, Judge Heaney claims that my conclusions on racial isolation by school are misleading, and points to a

short period of time when several schools dropped below a ninety percent minority level, the level above which

the term “racial isolation” is deﬁnitionally applied. While he is correct for this limited period, he also admits that

due to changing neighborhood demographics and other unstated reasons, the number of racially isolated

schools (i.e., ninety percent or higher minority population) has now reached the level I set forth in the body of

my dissent. And, of course, he doesn’t mention that, in part, this apparent resegregation is a result of a

limitation on remedies available to the federal court imposed by the Supreme Court in Jenkins III. Thus, my

statement that the Kansas City schools remain as racially segregated today as when the litigation began is

accurate.

school year. In any event, although changes occurred during this period, the beginning and ending ﬁgures in my table are absolutely correct as is my conclusion that recurring ITBS, TAP and MAP scores indicate that advances in educational achievement did not occur over time especially in the upper elementary grades and in high school. Finally, Judge Heaney claims that my conclusions on racial isolation by school are misleading, and points to a short period of time when several schools dropped below a ninety percent minority level, the level above which the term “racial isolation” is deﬁnitionally applied. While he is correct for this limited period, he also admits that due to changing neighborhood demographics and other unstated reasons, the number of racially isolated schools (i.e., ninety percent or higher minority population) has now reached the level I set forth in the body of my dissent. And, of course, he doesn’t mention that, in part, this apparent resegregation is a result of a limitation on remedies available to the federal court imposed by the Supreme Court in Jenkins III. Thus, my statement that the Kansas City schools remain as racially segregated today as when the litigation began is accurate.

15

The class contends the hearing held on January 7, 2000, was not sufﬁcient because the KCMSD had the burden

of proof on unitary status. However, burden of proof is only an issue if the evidence stands in equipoise.

Additionally, a party with the burden of proof is, of course, allowed to rest on the record before the court in order

to shoulder both its burden of production and persuasion. Further, it is odd that the beneﬁciary of another party’s

burden, as the class is here, would have cause to complain, especially since an unfettered opportunity to rebut

anything in the record thought persuasive to the district court was afforded the class by the court. If procedural

due process is the argument, under existing precedent, the class has been afforded more process than was due.

16

In footnote 6 of his opinion for the court and his separate concurrence, Judge John R. Gibson faults my concern

for the merits of this case. Although Judge Gibson’s formulation of the issue on appeal is slightly different than I

have stated, ante at 724–25, we both agree that the correctness of Judge Whipple’s determination of the

existence of unitary status in KCMSD is a component of the question at hand. It is my position that if KCMSD has

reached unitary status, Judge Whipple should be afﬁrmed. Thus, the merits of the unitary status holding must be

reviewed, and the entire record, not just that developed on November 1 and 2, 1999, must be considered.

In spite of his panel opinion position that he continues to restate in substantial part en banc, Judge Gibson now

purports to hinge reversal of Judge Whipple on his failure to schedule and hold a hearing on the subject of

unitary status. He cites United States v. Board of School Commissioners, 128 F.3d 507 (7th Cir.1997), an

inapposite case that actually cuts in the opposite direction, for the proposition that the class was deprived of a

“constitutional guarantee” of a unitary status hearing. Ante at 726. This deprivation, he posits, requires a

reversal and remand. Other than Board of School Commissioners, which unremarkably holds that you cannot

impose more (rather than less as Judge Whipple proposes) requirements on a school district without notice and

a hearing, Judge Gibson cites no authority for this newly minted constitutional guarantee. 128 F.3d at 512. I

believe there is no such guarantee whether based upon due process, equal protection or any other

constitutional provision. Under the procedures followed, the class was clearly afforded more due process than

any apposite precedent has ever required.

Judge Gibson also argues that the merits of Judge Clark’s 1997 decision, ﬁnding a purported vestige of prior

discrimination wrapped up in an achievement gap, are beyond consideration by the court en banc. This

argument is apparently based upon a “law of the case” theory. Again, he cites no precedent for this proposition

and indeed, the argument turns law of the case principles upside down. This is especially true when the court

en banc is considering, as here, a previously unreviewed panel opinion for the ﬁrst time. See Irving v. United

States, 162 F.3d 154, 161 (1st Cir.1998). And, as Judge Gibson himself stated in Liddell “the court en banc

should attempt to decide the case correctly rather than consistently.” 731 F.2d at 1331.

In 1997, Judge Clark and the panel erroneously disregarded Supreme Court directions concerning burdens of

proof and other substantive mandates. Beyond that, there was, as noted in Judge Loken’s dissent, a total

failure to establish a vestige of discrimination “traceable, in a proximate way, to [a] prior [constitutional]

violation.” Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). There was simply

nothing offered to Judge Clark beyond speculation and conjecture, and, as cataloged in the body of my dissent,

every court that has been approached with this theory has rejected it out of hand.

Finally, Judge Gibson seems to misunderstand my concern that the panel’s afﬁrmance of Judge Clark’s

achievement gap vestige ﬂies directly in the face of the Supreme Court’s mandate in Jenkins III . My point is

that not only does Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d

716 (1968), omit student achievement as a factor for consideration for unitary status, Jenkins III speciﬁcally

excludes this factor because it is controlled, as the Supreme Court noted, by circumstances wholly independent

of unlawful discrimination. Jenkins III, 515 U.S. at 100–02, 115 S.Ct. 2038. Every other circuit asked to consider

any manifestation of scholastic achievement as a vestige factor has agreed with this interpretation of Jenkins III

and rejected the proposition. See United States v. City of Yonkers, 197 F.3d 41, 54–55 (2d Cir.1999); People

Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537–38 (7th Cir.1997); Coalition to Save Our Children v.

State Bd. of Educ., 90 F.3d 752, 776–77 (3d Cir.1996).

17

The factors are student assignments, transportation, physical facilities, extracurricular activities, faculty

assignments, and resource allocation.

18

Additionally, it seems inconceivable that this court validated the district court’s ﬁnding that KCMSD was liable for a

portion of an achievement gap that existed even before the children entered the school system. See Jenkins VIII,

959 F.Supp. at 1164–65. But, it did.

19

The class, the court and Judges Heaney and Gibson in their concurrences concentrate solely upon the KCMSD

educational programs purportedly developed and implemented (or in process of implementation) since Judge

Clark’s and the panel’s adoption of an achievement gap vestige in 1997. However, the record available to Judge

any manifestation of scholastic achievement as a vestige factor has agreed with this interpretation of Jenkins III and rejected the proposition. See United States v. City of Yonkers, 197 F.3d 41, 54–55 (2d Cir.1999); People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 537–38 (7th Cir.1997); Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776–77 (3d Cir.1996).

17

The factors are student assignments, transportation, physical facilities, extracurricular activities, faculty

assignments, and resource allocation.

18

Additionally, it seems inconceivable that this court validated the district court’s ﬁnding that KCMSD was liable for a

portion of an achievement gap that existed even before the children entered the school system. See Jenkins VIII,

959 F.Supp. at 1164–65. But, it did.

19

The class, the court and Judges Heaney and Gibson in their concurrences concentrate solely upon the KCMSD

educational programs purportedly developed and implemented (or in process of implementation) since Judge

Clark’s and the panel’s adoption of an achievement gap vestige in 1997. However, the record available to Judge

Whipple shows that the 1985 KCMSD remedial plan, formulated by Judge Clark and approved by the panel, was

designed to achieve “results more in keeping with national norms,” with reading skills at such national norms to be

achieved within four or ﬁve years, and was similar if not almost identical, with one exception, to the present set of

plans touted by the class and insisted upon by the panel in its now vacated opinion. Jenkins v. Missouri, 639

F.Supp. 19, 24 (W.D.Mo.1985), aff’d in part, 807 F.2d 657 (8th Cir.1986) (en banc). That educational program

included:

(a) An annual evaluation rating of AAA, the highest classiﬁcation awarded by the Missouri State

Department of Elementary and Secondary Education, for all KCMSD schools.

(b) Reduction of class sizes to levels below those required for the AAA rating.

(c) Extensive library improvements through improved media and library resources and through the hiring of

at least twenty-two new librarians, thirteen of whom are certiﬁed for elementary schools.

(d) A system-wide computer education program with state-of-the-art automation equipment and highly

skilled instructors.

(e) A reduced teaching load for all teachers and an improved curriculum with additional art, physical

education and music programs with specialty teachers.

(f) Additional school counselors to begin service at the elementary level and to reduce the workload of

existing counselors at the secondary level to one full time counselor for each 390 students or fraction

thereof.

(g) A summer school program providing remedial and developmental learning experiences, reinforcement

and enrichment instruction and a “desegregative learning experience.”

(h) A full day kindergarten program in all elementary schools in the district.

(i) An extended day program including before and after school tutoring.

(j) An extensive early childhood development program.

[k] An “effective schools” program designed to accomplish changes in the KCMSD from the “bottom up.”

This program involves money for special programs developed by staff, parents, patrons, administrators,

principals, teachers and students.

[l] Staff development through special training in the principles and goals of the desegregation plan,

implementation of effective instructional programs, effective information transmission, imposition of

equitable discipline, solving transportation problems, use of school and community resources, and the law

applicable to school desegregation.

Jenkins v. Missouri, 19 F.3d 393, 398 (8th Cir.1994) (Beam, J., dissenting to denial of petition for rehearing)

(citations omitted).

The above-mentioned staff development plan mirrors the professional development plan and the classroom

practices plan that are presently being pursued. The educational program and effective schools programs were

focused on raising student test scores and making people accountable. The only current plan that does not

appear to have something equivalent in the 1985 order is the assessment plan. That plan, however, is the one

that all the parties now agree is fully implemented.

Although the current plans are now advanced as new and necessary for the educational progress needed to

close the achievement gap in KCMSD, they really are, as philosopher Yogi Berra might have said, “ déjà vu all

over again.” Although Jenkins III now indicates that this grandiose 1985 program was well beyond the remedial

authority of the federal court, its establishment and vigorous implementation, at unparalleled cost to taxpayers,

amply proves that KCMSD has now done everything “practicable” to achieve unitary status. Victory should be

declared and the case should now be dismissed.

20

There is also evidence that higher achieving students will respond better to these new techniques widening the

gap even further. (Trent, Transcript at 1411–12).

21

The court’s opinion refers to “[t]he Jenkins class, representing the children of the Kansas City, Missouri School

District.” Ante at 722. Under the evidence of this case, and the current vestige arguments being advanced by the

class, it is, in my view, almost certain that the class does not now represent the interests of all of the children of

KCMSD.

22

It is true, as the court sets forth, that there were discussions of a January 3, 2000, hearing on July 19, 1999,

August 24, 1999, and August 26, 1999.

23

Since the court seems bent upon an alternate course, it is proper to make one additional observation. The court in

its footnote 6 states that it ﬁnds it unnecessary to discuss the merits of Judge Whipple’s order concerning unitary

20

There is also evidence that higher achieving students will respond better to these new techniques widening the

gap even further. (Trent, Transcript at 1411–12).

21

The court’s opinion refers to “[t]he Jenkins class, representing the children of the Kansas City, Missouri School

District.” Ante at 722. Under the evidence of this case, and the current vestige arguments being advanced by the

class, it is, in my view, almost certain that the class does not now represent the interests of all of the children of

KCMSD.

22

It is true, as the court sets forth, that there were discussions of a January 3, 2000, hearing on July 19, 1999,

August 24, 1999, and August 26, 1999.

23

Since the court seems bent upon an alternate course, it is proper to make one additional observation. The court in

its footnote 6 states that it ﬁnds it unnecessary to discuss the merits of Judge Whipple’s order concerning unitary

status. Although not explicitly stated, this is presumably because the only issue reached by a majority of the court

en banc is whether an evidentiary hearing should have been conducted by Judge Whipple prior to his decision,

So, in my view, footnote 6, Chief Judge Wollman’s concurrence joined by Judge Morris Sheppard Arnold and this

dissent should be a clear signal to Judge Whipple that he is now free to set a hearing date that accommodates a

reasonable preparation period for the parties and to then hear and decide the unitary status of KCMSD free and

clear of any verbiage contained in the panel opinion which was vacated by the grant of en banc consideration in

this case.

24

The order to close the achievement gap by 2.6 NCEs effectively ignored the distaste expressed by all nine

Justices for decrees that require a certain level of statistical performance on standardized tests before unitary

status can be found. See Jenkins III, 515 U.S. at 101–02, 115 S.Ct. 2038; id. at 148–49, 115 S.Ct. 2038 (Souter,

J., dissenting).

25

The district court based its ﬁnding of a 2.6–NCE quantitative gap on expert opinion evidence that was likely

inadmissible under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

See People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 534, 537–38 (7th Cir.1997). In any event, that

evidence wholly failed to establish that any race-related portion of the achievement gap was caused by the prior

de jure segregation. See United States v. City of Yonkers, 197 F.3d 41, 54–55 (2d Cir.1999), cert. denied, 529

U.S. 1130, 120 S.Ct. 2005, 146 L.Ed.2d 956 (2000). “The vestiges of segregation that are the concern of the law

in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to

the de jure violation being remedied.” Jenkins III, 515 U.S. at 96, 115 S.Ct. 2038.

26

See United States v. Fordice, 505 U.S. 717, 738–39, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992); Freeman, 503 U.S.

at 494, 112 S.Ct. 1430; Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537, 99 S.Ct. 2971, 61 L.Ed.2d 720

(1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 209–10, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v.

Charlotte–Mecklenburg Bd. of Educ., 402 U.S. 1, 26, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971).

27

“Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day

when the KCMSD will be able to operate on its own.” Jenkins III, 515 U.S. at 102, 115 S.Ct. 2038.

 
 2006 WL 3386563 Only the Westlaw citation is currently available.
United States District Court, W.D. Missouri,
Western Division.
Chinyere JENKINS, et al., Plaintiff, v.
SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al., Defendant.
No. 77-0420-CV-W-DW. |
Nov. 21, 2006.
Attorneys and Law Firms
Arthur A. Benson, Jamie Kathryn Lansford, Arthur Benson & Associates, Kansas City, MO, for Plaintiff.
Allen R. Snyder, Kevin J. Lanigan, Patricia A. Brannan, John Borkowski, Hogan & Hartson LLP, Washington, DC, Maurice A. Watson, Hayley Elizabeth Hanson, Blackwell, Sanders, Peper, Martin, LLP, Brian Paul Wood, Wickham & Wood, LLC, Kansas City, MO, Walter R. Roher, Blue Springs, MO, for Defendants.
AMENDED ORDER
DEAN WHIPPLE, District Judge.
*1 The State of Missouri (the “State”) moves the Court to reconsider, or alternatively amend and clarify, its June 15, 2006 Order (Doc. 5146). The Kansas City, Missouri School District (“KCMSD”), the Jenkins Plaintiff Class, and the American Federation of Teachers Local 691 have filed a joint response (Doc. 5149) and the State filed Reply Suggestions (Doc. 5151). The motion is granted and the Court’s June 15, 2006 Order is amended in part.
First, neither the Court’s June 15, 2006 Order nor the present Order should be read to authorize KCMSD to withhold the entire $4.95 per $100 property tax levy from transfer to the charter schools. The State has identified a statement within the June 15, 2006 Order that when considered in isolation is arguably subject to this broad reading. Therefore, to dispel any perceived ambiguity in the Court’s previous Order, the Court hereby clarifies that the scope of the remedy at issue is limited to those funds traditionally withheld by KCMSD under Mo.Rev.Stat. § 160.415.2(5).
Second, after careful consideration of the terms of the 1996 Settlement Agreement (the “Agreement” or “Settlement Agreement”) and the arguments of the parties, the Court amends its June 15, 2006 Order as follows:
On January 28, 1999, the State was dismissed from this action upon payment of the agreed upon amounts designated in the Settlement Agreement. Although the State’s dismissal was with prejudice, certain obligations were specified in the Agreement and continued after dismissal. Most importantly, the State explicitly agreed to “support existing court-ordered financing ... until such time that the District is declared unitary.” (Agreement ¶ 8). “Existing court-ordered financing” included the property tax levy which was initially set at $4.96 by court order and later set at $4.95 pursuant to Missouri law. See Mo. Const. Art. X, § 11(g). When reviewing the Settlement Agreement, the Eighth Circuit expressed that the existence of the current levy provided adequate assurance that KCMSD would have sufficient funding and concluded that approval of the Agreement was appropriate. Relying on the terms of the Settlement Agreement and the conditions of its approval by the Eighth Circuit, the Court finds that “support[ing] existing court-ordered financing,” under the Settlement Agreement, definitively requires the State to permit KCMSD to withhold funds under Mo.Rev.Stat. § 160.415.2(5) through the time it was granted unitary status by the Court’s August 13, 2003 Order.

The next question is whether the State was required to permit KCMSD to withhold funds beyond that date. If the courtordered bonds are deemed to fall within the “court-ordered financing” that the State must support under the Settlement Agreement, then the State would be required to allow KCMSD to withhold funds until the bonds are fully retired. In 1988, the Court ordered the initial bond issue to be retired within 20 years. Although no such limitation was ordered with the two subsequent bond issues in 1993, those issues had original maturity dates in 2014.
*2 There can be no dispute that the bonds were “court-ordered financing” and that had KCMSD not been declared unitary in 2003, the State would have had a continuing obligation to support KCMSD’s retirement of the court-ordered bonds through the original maturity dates in 2014. However, in 1998, the Eighth Circuit directed that “[s]hould efforts be made to declare the district unitary before retirement [of the bonds], the issue can appropriately be determined at that time.” Jenkins v. Missouri, 158 F.3d 984, 986 (8th Cir .1998). As the State has noted, KCMSD did not raise the issue at that time. On the other hand, the State did not restrict funds withheld under § 160.415.2(5) until after KCMSD was declared unitary. Under these circumstances, the Court finds the issue is appropriately raised at this time. Under the Settlement Agreement and previous orders of this Court, the Court finds that the leasehold revenue bond obligations are “court-ordered financing” and the State has a continuing obligation to support KCMSD’s efforts to retire them within their respective initial maturation dates.
Accordingly, the Court hereby ORDERS that the 1996 Settlement Agreement requires the State to permit KCMSD to withhold local property tax levy funds for repayment of court-ordered leasehold revenue bonds from transfer to the charter schools, pursuant to Mo. Rev Stat. § 160.415.2(5), through the respective initial retirement dates of each of the court-ordered leasehold revenue bond obligations.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2006 WL 3386563

 
 516 F.3d 1074 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, Plaintiff–Appellee, v.
KANSAS CITY MISSOURI SCHOOL DISTRICT; American Federation of Teachers, Defendants–Appellees, State Defendants, Defendant–Appellant.
No. 06–3318. |
Submitted: Nov. 14, 2007. |
Filed: Feb. 27, 2008. |
As Corrected March 27, 2008. |
Rehearing and Rehearing En Banc Denied April 21, 2008.*
Synopsis Background: Following a court-supervised desegregation of school district, school district, students, and teachers’ union sought injunction against state’s requirement that district use property tax levy proceeds to fund charter schools. The United States District Court for the Western District of Missouri, Dean Whipple, Senior District Judge, 2006 WL 3386563, enjoined the state from requiring the funding. State appealed.
Holdings: The Court of Appeals, Bowman, Circuit Judge, held that:
[1] district court possessed ancillary jurisdiction over request for injunction, and
[2] state could not require school to use subject proceeds on charter school funding.
Affirmed.
See also 122 F.3d 588.
West Codenotes
Validity Called into Doubt Mo.Rev.Stat. § 33.315
Attorneys and Law Firms
*1076 Alana Barragan–Scott, Assistant Attorney General, argued, Jefferson City, MO, for appellant.
Arthur Benson II, argued, Kansas City, MO, for Jenkins and John Borkowski, argued, South Bend, IN, for Kansas City School District, Jamie Lansford, Fred Wickham, Brian P. Wood, Maurice A. Watson, Kirsten Byrd and Hayley E. Hanson, Kansas City, MO, and Patricia A. Brannan and Joshua I. Civin, Washington, DC, on the brief.
Before RILEY, BOWMAN, and SMITH, Circuit Judges.
Opinion

BOWMAN, Circuit Judge.
This appeal arises out of the court-supervised desegregation of the Kansas City, Missouri, School District (“the District” or “the KCMSD”), which began with the filing of a lawsuit in 1977. Although the District was declared unitary and released from court supervision in 2003, some parties to the desegregation suit filed a motion in the District Court1 on February 22, 2006, asking the court to exercise ancillary jurisdiction and enjoin the State of Missouri and state officials (collectively, “the State”) from acting in a manner inconsistent with earlier court orders (including an agreement between the KCMSD and the State incorporated in court orders). The movants (the KCMSD, a class of plaintiff schoolchildren, and the American Federation of Teachers Local 691) asserted that recent legislative action by the State violated orders issued in the desegregation suit by requiring the KCMSD to use property tax levy proceeds, which were dedicated to the repayment of court-ordered desegregation bonds, to fund charter schools. The District Court agreed, granted the motion, and issued a final order enjoining the State from requiring the KCMSD to divert to the charter schools tax levy funds that were traditionally withheld under Section 160.415.2(5) of the Missouri Revised Statutes. The State appeals the District Court’s order. We affirm.
I.
In 1977, the KCMSD, members of the Kansas City School Board, and four schoolchildren filed suit against the State, suburban school districts surrounding the District, and various federal agencies. The complaint alleged that the defendants caused and perpetuated a racially segregated public school system in the Kansas City, Missouri, metropolitan area. The District Court2 realigned the KCMSD as a defendant and converted the suit into a class action, making a plaintiff class of all present and future KCMSD students. After a 7 ½-month trial, the District Court *1077 dismissed the case against the suburban school districts and federal defendants, but found constitutional violations by the KCMSD and the State. Jenkins v. Missouri, 593 F.Supp. 1485 (W.D.Mo.1984). The court determined that the State had mandated segregated schools for black and white children prior to 1954, id. at 1490, and held that the KCMSD and the State had not met their affirmative obligations to remove all vestiges of that dual school system, id. at 1504. We affirmed this holding in Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc) (Jenkins I),3 cert. denied, 484 U.S. 816 (1987).
To address the vestiges of unconstitutional segregation, the District Court ordered remedial programs and capital improvements throughout the District. By the summer of 1987, the court had approved a series of capital improvement expenditures totaling approximately $110 million. In September 1987, the District Court approved a $187 million “longrange capital improvement plan aimed at eliminating the substandard conditions present in KCMSD schools.”4 Jenkins v. Missouri, 672 F.Supp. 400, 403 (W.D.Mo.1987). These capital improvement costs were in addition to “other desegregation costs.” Id. at 412. While the court had deemed the State and the KCMSD jointly and severally liable for desegregation remedies, the court also recognized that the KCMSD lacked the resources to pay its share of the costs and had exhausted all means of raising additional revenue.5 Concluding that it was “left with no choice but to exercise its broad equitable powers” to effectuate a remedy, id. at 411, the District Court directed the KCMSD to issue capital improvement bonds in the amount of $150 million6 and ordered the property tax levy in the District increased to $4.00 per $100 of assessed valuation, id. at 412–13.7 The court specifically earmarked the proceeds of the property tax increase for the retirement of the capital improvement bonds and ordered that a tax increase in an amount “required to pay the interest and principal of the bond indebtedness shall remain in effect until such time as the bonds are retired or until other provisions are adopted to insure their retirement.” Order of Oct. 27, 1987, at 2. On appeal, we affirmed the issuance of the bonds. Jenkins v. Missouri, 855 F.2d 1295, 1304–07 (8th Cir.1988) (Jenkins II), aff’d in relevant part, 495 U.S. 33, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). We also affirmed the District Court’s action setting aside state law that limited the District’s ability to increase its tax levy. Id. at 1308–15. We required that in the future, however, the amount of the levy be set by the KCMSD school board (rather than by the court), subject to a limit set by the court. Id. at 1314. The Supreme Court then considered the issue and, while holding that the District Court abused its discretion by setting the property tax levy itself, agreed with our proposal that the *1078 District Court authorize the KCMSD to levy property taxes at a rate necessary to fund the desegregation remedy and enjoin state laws that prevent the KCMSD from exercising this power. Missouri v. Jenkins, 495 U.S. 33, 51–58, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990). Pursuant to these orders, in 1990, the KCMSD increased the levy to $4.96 per $100 of assessed valuation. See Jenkins v. Missouri, 943 F.2d 840, 842 (8th Cir.1991) (Jenkins VI).

The District Court—and our Court—continued to oversee the desegregation efforts. The case came before the Supreme Court again in 1995. In Missouri v. Jenkins, 515 U.S. 70, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995), the Supreme Court determined that the District Court had exceeded its power in ordering particular remedies. The Supreme Court found “that many goals of [the District Court’s] quality education plan already have been attained,” id. at 102, 115 S.Ct. 2038, and directed that on remand, the District Court “bear in mind that its end purpose is not only ‘to remedy the violation’ to the extent practicable, but also ‘to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution,’ ” id. (quoting Freeman v. Pitts 503 U.S. 467, 489, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992)). This order changed the direction of the case, refocusing the court and the parties on the goal of ending court supervision of the District.
In April 1996, the State filed a motion asking the District Court to declare the District unitary, to dissolve all injunctions, and to relinquish jurisdiction in the case. Less than a month later, the State and the KCMSD entered into an agreement (“Agreement” or “1996 Agreement”) whereby the State agreed to pay $314 million (later increased to $320 million) in desegregation funding to the KCMSD over a three-year period. The Agreement provided that upon final payment by the State and approval of the Agreement by the District Court, the State would be entitled to an order releasing it from further desegregation obligations and the jurisdiction of the court. Consistent with the State’s role throughout the remedial phase of the case, the Agreement focused only on the amount of funding, not on the use of the funds. The American Federation of Teachers Local 691 (“AFT”), an intervener in the case, joined the Agreement, but the plaintiffs did not. The State then filed a second motion asking the District Court to approve the 1996 Agreement and dismiss the State from the case. After a hearing on the motions, the District Court denied the motion for unitary status except with respect to extra-curricular activities. Jenkins v. Missouri, 959 F.Supp. 1151, 1179–80 (W.D.Mo.1997). The District Court approved the Agreement, however, stating that it was reasonable to expect the KCMSD to be unitary within three years—around the time that the State would be making final funding payments. Id. at 1179. We affirmed the District Court’s order in Jenkins v. Missouri, 122 F.3d 588 (8th Cir.1997) (Jenkins XIV). The State made final payment to the KCMSD under the 1996 Agreement on December 3, 1998, and the District Court8 dismissed the State on January 28, 1999.
In 1998, Missouri passed legislation authorizing the creation of charter schools, i.e., “independent, publicly supported school[s],” in Kansas City and St. Louis. Mo.Rev.Stat. § 160.400. Charter schools established within the boundaries of the KCMSD are funded by diverting federal, state, and local education funding away *1079 from the KCMSD on a per-pupil basis.9 Id. § 160.415.2(1). Recognizing the KCMSD’s financial obligations under the desegregation revenue bonds, however, the legislature swiftly amended the charter-schools statute in 1999 so that “[t]he per pupil amount paid by a school district to a charter school [was] reduced by the amount per pupil ... needed ... for repayment of leasehold revenue bonds obligated pursuant to a federal court desegregation action.” Id. § 160.415.2(5).
In March 2002, the District Court “declared the KCMSD unitary with regard to facilities, budget, transportation, and racial balance.” Order of Mar. 29, 2002, at 22. With regard to the remaining discriminatory vestige, the student achievement gap, the District Court declared the KCMSD unitary and released it from court supervision on August 13, 2003. Am. Order of Aug. 13, 2003, at 30. The KCMSD’s unitary status had no immediate effect on its funding. The property tax levy remained in place, the KCMSD continued to make scheduled payments on the revenue bonds, and the State continued to reduce the KCMSD’s funding obligations to the charter schools under Section 160.415.2(5).
Then, in 2004, the State changed the rules of the game. The Missouri legislature enacted a new statute that authorized the Missouri Board of Fund Commissioners (“BFC”)10 to condition the KCMSD’s withholding of funds under Section 160.415.2(5) on a finding that the KCMSD did not have adequate reserves to satisfy outstanding desegregation bonds:
The [BFC] shall determine whether any governmental entity has sufficient fund balances to redeem leasehold revenue bonds obligated under a federal desegregation action. If the [BFC] determines that any governmental entity has sufficient fund balances to redeem or otherwise pay off such leasehold revenue bonds, the state board of education shall certify, under subdivision (5) of subsection 2 of section 160.415, RSMo, that no amount is needed by such governmental entity to repay such bonds. Mo.Rev.Stat. § 33.315. Pursuant to the statute, the BFC met in April 2005 to determine whether the KCMSD had sufficient funds to redeem the leasehold revenue bonds. At the time, the balance owed on the bonds was approximately $160 million and the last of the bonds was not scheduled to be fully repaid until 2014. Nonetheless, the BFC determined that the KCMSD had sufficient funds in its reserves to immediately pay off the bonds. The Missouri Board of Education then certified that the KCMSD was no longer entitled to make reductions in its per-pupil payments allocated to charter schools pursuant to Section 160.415.2(5). Two months later, the legislature repealed Section 160.415.2(5), effective July 1, 2006.

S.B. No. 287, 93rd Gen. Assem., 1st Reg. Sess. (Mo.2005) (“Senate Bill 287”). As a result of the State’s actions, in July 2006, the KCMSD was forced to begin transferring the full per-pupil portion of the property tax levy funds to the charter schools.11 *1080 On February 22, 2006, the KCMSD, the class of plaintiff schoolchildren, and intervenor AFT filed a joint motion in the District Court asking the court to exercise ancillary jurisdiction and enforce the 1996 Agreement and court orders that incorporated the Agreement and established the terms of the State’s dismissal from the case. The movants argued that the State’s dismissal was premised on the maintenance of the property tax levy proceeds to allow the KCMSD to repay courtordered desegregation bonds. According to the movants, the State violated the Agreement and court orders by enacting Section 33.315 and Senate Bill 287, which require the KCMSD to “use levy proceeds that are devoted to the repayment of the desegregation bonds to fund the charter schools.” Jt. Motion to Enforce Judgments at 2. The movants asked the court to enjoin the State from “using any portion of the per-pupil amount needed for the repayment of leasehold revenue bonds obligated pursuant to this case for the funding of charter schools or any other purpose.” Id.
The District Court granted the motion on June 15, 2006. The court found that “the dismissal of the State was granted subject to assurances of the existence of adequate funding for KCMSD’s operations and the repayment of court-ordered desegregation bonds,” including “the $320 million in transition payments” and “the availability of the entire property tax levy.” Order of June 15, 2006, at 1. The court was “concerned that requiring KCMSD to transfer these funds to the charter schools will impede its ability to fund its ongoing operations and continue to meet its debt service obligation.” Id. at 6. The court concluded that “consistent with the Eighth Circuit’s opinion approving the dismissal of the State, the State must not alter the financial status quo until KCMSD has fully repaid its court-ordered bonds.” Id. at 7. In an amended order issued on November 21, 2006, the court further clarified that “the 1996 Settlement Agreement requires the State to permit KCMSD to withhold local property tax levy funds for repayment of court-ordered leasehold revenue bonds from transfer to charter schools, pursuant to Mo.Rev.Stat. § 160.415.2(5), through the respective initial retirement dates of each of the court-ordered leasehold revenue bond obligations.” Am. Order of Nov. 21, 2006, at 3. The court enjoined the State from requiring the KCMSD to divert to the charter schools property tax levy funds that were traditionally withheld under Section 160.415.2(5). The State appeals this order.
II.
[1] Before reaching the merits of the District Court’s order, we must address the State’s argument that the District Court had no jurisdiction to consider the motion and enjoin the State. The District Court addressed this jurisdictional issue and determined that it had ancillary jurisdiction to enforce prior orders in this case. Order of June 15, 2006, at 3 (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 379, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). We review issues of subject matter jurisdiction de novo. Myers v. Richland County, 429 F.3d 740, 745 (8th Cir.2005).
[2] [3] The State’s argument against jurisdiction has two related prongs, both of which we reject. First, the State asserts that because the District Court declared the District unitary and closed the case in 2003, the court had no jurisdiction “to impose remedies some three years after such declaration.” Br. of Appellants at 51. This argument is based on the faulty premise that the District Court imposed *1081 new obligations on the State. As we discuss in detail below, however, the District Court did nothing more than enforce existing obligations created by previous remedial orders in this case.12 While a district court’s jurisdiction typically ends when a case is closed and judgment entered, a district court retains ancillary jurisdiction to “manage its proceedings, vindicate its authority, and effectuate its decrees.” Kokkonen, 511 U.S. at 380, 114 S.Ct. 1673. The Supreme Court has recognized that “[w]ithout jurisdiction to enforce a judgment entered by a federal court, the judicial power would be incomplete and entirely inadequate to the purposes for which it was conferred by the Constitution.” Peacock v. Thomas, 516 U.S. 349, 356, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996) (internal quotation marks and citation omitted). We affirm the District Court’s determination that it had ancillary jurisdiction to enforce previous orders in this case.
This leads us to the second prong of the State’s jurisdictional argument. The State asserts that the District Court did not have ancillary jurisdiction to enforce the 1996 Agreement because the 1996 Agreement was simply a settlement agreement, the terms of which were not made part of a court order. Kokkonen made clear that federal courts do not retain authority to enforce settlement agreements unless the dismissal order states that the district court is retaining jurisdiction over the agreement or the court incorporates the terms of the agreement into an order. 511 U.S. at 381, 114 S.Ct. 1673. The District Court reiterated that it had approved the 1996 Agreement “as part of a modified judicial order” and noted that “[t]he Eighth Circuit has taken the view that the State was dismissed pursuant to an order of the Court modifying an earlier remedy and not pursuant to an

unincorporated settlement agreement.” Order of June 15, 2006, at 3 (citing Jenkins XIV, 122 F.3d at 605). The District Court thus concluded that it had ancillary jurisdiction to enforce the terms of the Agreement as incorporated into court orders. We reach the same conclusion.
The opinions of both the District Court and this Court make it clear that the 1996 Agreement was incorporated into the District Court’s orders. Initially, the District Court’s March 25, 1997, order approving the Agreement indicated that the District Court was modifying its earlier injunctive decrees. Jenkins v. Missouri, 959 F.Supp. at 1172. The District Court stated that it would approve the Agreement, thereby releasing the State upon the payment of transitional funding, because “[e]quity requires a modification of the earlier remedy.” Id. In a later ruling on the plaintiffs’ motion to stay the order approving the Agreement, the District Court stated, “Properly understood, the approval of the agreement was a court-determination to release the State from liability over the objections of Plaintiffs—it was not a consensual settlement agreement.” Jenkins v. Missouri, 965 F.Supp. 1295, 1302 n. 11 (W.D.Mo.1997). The District Court has not varied from this view. In an October 2, 1997, order discussing attorney fees, the District Court was called on to “defin[e] the nature of the Agreement and the relationship between it and the Order of March 25, 1997.” Order of Oct. 2, 1997, at 5. The court stated: “The Agreement and the Order of March 25, 1997, which approved the Agreement, modified the Court’s original remedial injunction.” Id. The court was persuaded “to view the court-approved Agreement as *1082 a judicial decree, not a contract,” id. at 7, and to “look to law governing judgments, not contract law, to interpret and implement the Agreement and the Order of March 25, 1997,” id. at 7–8. The District Court concluded that “once the Court approved the Agreement, its terms transformed from a contract into a court judgment.” Id. at 17.
Our Court has also taken the view that the District Court’s approval of the 1996 Agreement was a modification of the District Court’s earlier orders. In affirming the approval of the Agreement, we recognized the equitable power possessed by district courts to modify the remedies ordered in school desegregation cases and stated that the District Court “amended the remedy” in this case. Jenkins XIV, 122 F.3d at 603. We rejected the plaintiffs’ argument that they could not be bound by the Agreement, stating that the District Court approved the Agreement as “an exercise of its continuing equitable authority to devise and implement a remedy in this case” and that the District Court’s order was “not akin to a contract.” Id. at 604 n. 11. Finally, we noted that the court could modify the Agreement in the future to hold the State responsible for additional funding. Id. at 603.
Our review of these orders convinces us that while the District Court’s March 25, 1997, order did not state explicitly that it was “incorporating the terms of the 1996 Agreement,” that is exactly what the order did. See Schaefer Fan Co. v. J & D Mfg., 265 F.3d 1282, 1287 (Fed.Cir.2001) (“[A] district court need not use explicit language or any magic form of words to effect a valid incorporation of an agreement into an order.” (Internal quotation marks and citation omitted)). The circumstances here are easily distinguishable from those in Kokkonen where the Supreme Court deemed the district court’s “mere awareness and approval of the terms of the settlement agreement” insufficient to support ancillary jurisdiction. 511 U.S. at 381, 114 S.Ct. 1673. Additionally, as is clear from our discussion below, this Court’s approval of the State’s dismissal and the declaration of unitary status came only after we were confident that the financial conditions in place at the time would provide adequate funding for the KCMSD to meet its court-ordered bond obligations. The District Court was well within its authority to exercise ancillary jurisdiction to enforce the terms of all of its prior orders (including the terms of the incorporated Agreement), as well as all of the prior orders of this Court.
III.
[4] We proceed to consider whether the District Court, in exercising its ancillary jurisdiction, acted appropriately in enjoining the State from requiring the District to divert to charter schools the levy funds that had been dedicated to repayment of the District’s outstanding court-ordered desegregation bonds. The parties disagree on the standard that we should apply in our review. The State argues that the District Court interpreted and modified a settlement agreement and that such action is subject to de novo review. See Little Rock Sch. Dist. v. N. Little Rock Sch. Dist., 451 F.3d 528, 531 (8th Cir.2006). The movants argue that the District Court interpreted its previous orders and that such interpretation is reviewed for abuse of discretion. See Steahr v. Apfel, 151 F.3d 1124, 1126 (8th Cir.1998) (ruling that we must defer to a district court’s construction of its own remand order). Neither characterization of the District Court’s actions is completely accurate, however. As discussed above and in more detail below, the District Court exercised its ancillary jurisdiction by interpreting and enforcing earlier remedial orders (including orders incorporating the Agreement) *1083 of both the District Court (including orders authored by Judge Clark) and the Eighth Circuit. Vindicating the authority of both courts was an exercise of the District Court’s inherent power. Kokkonen, 511 U.S. at 380, 114 S.Ct. 1673.13 In other contexts, we have reviewed a district court’s

exercise of its inherent power for abuse of discretion. See, e.g., K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1017 (8th Cir.2007) (reviewing district court’s refusal to consider party’s argument); Greiner v. City of Champlin, 152 F.3d 787, 790 (8th Cir.1998) (reviewing district court’s award of sanctions). We believe that reviewing for abuse of the district court’s discretion is appropriate in the context of the exercise of ancillary jurisdiction as well.14
In enjoining the State from interfering with the District’s use of levy proceeds previously withheld under Section 160.415.2(5) to repay court-ordered bonds, the District Court indicated that it was enforcing both court orders and the terms of the 1996 Agreement that were incorporated into court orders. Our review of the Agreement and the numerous orders in this case leads us to conclude that the District Court acted properly.
A.
[5] First, we find that the injunction was necessary to effectuate previous court orders. Ensuring the KCMSD’s ability to repay court-ordered funding obligations was a priority for both this Court and the District Court throughout this litigation. Implicit in previous orders is a clear understanding that court-ordered remedies would be fully funded. If we look back to 1987 when the District Court first ordered the issuance of the capital improvement bonds and the property tax levy increase, we see that the District Court specifically required “that the revenues from the property tax increase ... be used to retire the capital improvement bonds.” Order of Oct. 27, 1987, at 1. The court directed that the portion of the tax increase “that is required to pay the interest and principal of the bond indebtedness shall remain in effect until such time as the bonds are retired or until other provisions are adopted to insure their retirement.” Id. at 2. Although on appeal we stated that the property tax levy should be used to fund other desegregation expenses in addition to retiring the bonds, we did not criticize the District Court’s order regarding the repayment of the bonds. Jenkins II, 855 F.2d at 1315.
Ten years later, when asked to approve the Agreement between the State and the KCMSD releasing the State from the case, the courts again considered the property tax levy and the KCMSD’s ability to fund its court-ordered desegregation obligations. In its order approving the Agreement, the District Court recognized that “[a]ll of the parties agree that removal of the court-ordered levy would result in ‘fiscal chaos.’ ” Jenkins v. Missouri, 959 F.Supp. at 1154. While noting that its approval of the Agreement would leave in place the court-ordered $4.96 levy for the three-year transition period contemplated by the Agreement, the District Court warned the KCMSD that it was not the court’s responsibility to ensure funding for the District and directed the KCMSD to *1084 “plan on being entirely self-sufficient [after the three-year period], even if that means regressing to a $2.75 levy.” Id. at 1179. The State asks us to consider this dicta as evidence that the dismissal of the State was not contingent on the District’s continued receipt of levy funds. We decline to do so, however, because the District Court’s order was not the last word on the matter. In addressing two separate appeals of the District Court’s order, our Court took a different approach to funding.
First, in an opinion addressing the plaintiffs’ appeal of the District Court’s approval of the Agreement, we stressed that funding at the “present level” was “unquestionably critical to the continuing success of the district’s programs.” Jenkins XIV, 122 F.3d at 603. We stated that the continuing operation of the schools was dependent on the $4.96 levy, which the KCMSD was only able to establish because the court enjoined the enforcement of state laws that set a lower levy limit. Id. We noted, however, that the Missouri General Assembly had recently passed a joint resolution submitting for voter approval an amendment to the Missouri Constitution that would allow the KCMSD to maintain the levy at the $4.96 level, thereby providing for a means of continued funding after the District was declared unitary and no longer under court supervision. Id. Assured of the likelihood of continued funding, we affirmed the District Court’s approval of the Agreement. We concluded, however, that should “the loss of the level of funding under the current levy ... occur, it would present a changed circumstance that could call for reconsideration of the agreement.” Id.
Then, in addressing the KCMSD’s separate appeal of the District Court’s determination that it was not the court’s duty to ensure funding for the District, we again recognized the KCMSD’s need for sufficient funds to make payments on the bonds. Jenkins v. Missouri, 158 F.3d 984 (8th Cir.1998) (Jenkins XV). We found, however, that the KCMSD’s concern that “it [was] on the brink of a funding crisis because it [was] uncertain whether it [would] have sufficient funds to retire the bonds” was alleviated for the time being because (after the appeal was argued) “the voters of Missouri ... adopted a constitutional amendment that allows the board of the KCMSD to set the tax rate at an amount up to $4.95 for $100 assessed valuation.” Id. at 986 (discussing amendment to Mo. Const. Art. 10 § 11(g)). Based on this constitutional amendment, we stated that “[i]t is now evident that KCMSD can raise funds to retire the [court-ordered] bonds.” Id. We recounted that the documents

authorizing the issuance of the bonds had declared an intent that the bonds be satisfied out of an increase in the property tax levy, and we stated that the constitutional amendment “now gives the KCMSD board authority to maintain that part of its levy which has heretofore been devoted to retire its indebtedness.” Id. (emphasis added). Because the issue of funding was not ripe, we dismissed the appeal. Id. We noted, however, that should state laws interfere with the adoption of a levy in the future, “the district court could enter injunctive orders to set aside enforcement of such state laws or constitutional provisions.” Id. And we concluded that “[s]hould efforts be made to declare the district unitary before retirement of the [bonds], the [bond repayment] issue can appropriately be determined at that time.”15 Id. These two orders clearly indicate that we only affirmed the District Court’s order approving the Agreement *1085 after we were assured that sufficient funding would remain in place to enable the KCMSD to satisfy its desegregation obligations.
After the State made its final payment to the KCMSD under the Agreement, the District Court entered an order dismissing the State from the case. Addressing the funding issue, the District Court stated, “The [funding] concerns expressed by the Eighth Circuit have been addressed and eliminated by passage of H.J.R. 9 [, amending Mo. Const. Art. 10 § 11(g)], which ensures that the levy would remain at $4.95 per $100 by simple majority vote of the school board.” Order of Jan. 28, 1999, at 5 n. 2. While relinquishing jurisdiction over the State, the District Court also ordered the State to “continue to comply with obligations, if any, that it took during the course of this lawsuit and which are not covered by the Agreement itself.” Id. at 6. The District Court concluded with a warning: “The State should be warned by its twenty-one year involvement in this case against taking any actions which might prevent the KCMSD from ultimately fulfilling its court-ordered remedial goals.” Id.16
These five orders paint a picture of the obligation that the District Court and this Court placed on the State to refrain from taking any action that interferes with the KCMSD’s ability to retire the court-ordered bonds. In granting the movants’ recent motion, the District Court enforced this obligation by prohibiting the State from requiring the KCMSD to transfer to charter schools tax levy funds dedicated to the repayment of the bonds and traditionally withheld under Section 160.415.2(5). The State’s argument that the District Court’s order somehow imposed new duties on the State is without merit.
B.
[6] In addition to stopping the State from flouting the court orders themselves, the District Court indicated that it was enforcing the 1996 Agreement, which we have found incorporated into court orders and thus enforceable under the court’s ancillary jurisdiction. See discussion supra at 1081–82.
The 1996 Agreement provided that the “purpose of the [lump-sum] payments by the State to the KCMSD is to provide the KCMSD with a source of funds not only for the next three years, but for future years.” Agreement at ¶ 5. To effectuate that purpose, “the parties agree[d] that the KCMSD shall set aside a portion of the funds being provided by the State for use in years subsequent to fiscal year 1999.” Id. The movants assert that pursuant to this provision, a portion of the $320 million paid by the State remains in the KCMSD’s reserves. According to the movants, the State is indirectly reclaiming funds that it transferred under the Agreement by requiring the KCMSD to divert moneys to the charter schools. With these moneys now unavailable to make payments on the bonds, the KCMSD will be forced to deplete its reserves to service its bond obligations. We agree with the District Court’s finding that implicit in the Agreement was the parties’ expectations that the State would not reclaim the funds that it was transferring under the Agreement. The District Court’s order therefore appropriately gave effect to this provision.
The District Court also considered Paragraph 8 of the Agreement, which required the parties to “jointly support existing court-ordered financing” (including the increased property tax levy) “until such time that the District is declared unitary.” *1086 Agreement at ¶ 8. The court found that “had KCMSD not been declared unitary in 2003, the State would have had a continuing obligation to support KCMSD’s retirement of the court-ordered bonds through the original maturity dates in 2014.” Am. Order of Nov. 21, 2006, at 2–3. While the District Court recognized that this provision per se imposed no obligation on the State after the District was declared unitary,17 the District Court went on to quote our 1998 opinion in which we stated, “Should efforts be made to declare the district unitary before retirement [of the bonds], the issue can appropriately be determined at that time.” Jenkins XV, 158 F.3d at 986 (dismissing the KCMSD’s appeal of the District Court order approving the Agreement). The District Court noted that while the KCMSD did not raise the issue of funding at the unitary status proceedings, the KCMSD would have had no reason to sound the alarm at that time because the State had not yet restricted the District’s withholding under Section 160.415.2(5). “Under these circumstances,” the District Court found the issue “appropriately raised at this time.” Am. Order of Nov. 21, 2006, at 3. The District Court thus relied on both the

Agreement and an order of this Court in finding “that the leasehold revenue bond obligations are ‘court-ordered financing’ and the State has a continuing obligation to support KCMSD’s efforts to retire them within their respective initial maturation dates.” Id. We find the District Court’s opinion well reasoned and conclude that the District Court did not abuse its discretion in ordering the State not to interfere with the KCMSD’s retirement of the bonds.
The State asks us to consider a third provision of the Agreement that the District Court did not directly address. Paragraph 3 of the Agreement relieved the State, following its payment of $320 million, from making any further payments “to fund or otherwise provide for desegregation remedies in the KCMSD.” Agreement at ¶ 3. The State argues that the District Court’s order contradicted Paragraph 3 because the order imposed new funding requirements on the State. This is another argument that arises from the State’s mis-characterization of the District Court’s action. As we stated above, the District Court’s order did not require the State to provide new funding to the District; rather, it simply enforced the State’s long-standing obligation not to impede the District’s ability to use levy proceeds to retire the bonds. Thus, we reject the State’s argument that the District Court’s order unlawfully modified the Agreement.

IV.
The District Court acted properly in exercising ancillary jurisdiction to enforce court orders and the incorporated Agreement. We affirm the District Court’s order.

All Citations 516 F.3d 1074, 229 Ed. Law Rep. 414

Footnotes

*

Chief Judge Loken, Judge Gruender and Judge Shepherd would grant the petition for rehearing en banc.

1

The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.

2

The late Honorable Russell G. Clark, United States District Judge for the Western District of Missouri, presided

over the case from its inception until May 1997 when the case was reassigned to Judge Whipple.

3

This Court has heard over thirty appeals in this case. Where Roman numerals have previously been assigned to

the Court’s opinions, we include those numeric designations.

4

The costs of capital improvements continued to multiply, and the total costs were over $540 million in 1995. See

Missouri v. Jenkins, 515 U.S. 70, 78, 115 S.Ct. 2038, 132 L.Ed.2d 63 (1995).

5

Voters in the KCMSD had not approved a bond passage or tax levy increase since 1969. See Jenkins v. Missouri,

855 F.2d 1295, 1312 (8th Cir.1988) (Jenkins II), aff’d in part and rev’d in part, 495 U.S. 33, 110 S.Ct. 1651, 109

L.Ed.2d 31 (1990).

6

In 1993, the District Court approved the issuance of additional bonds totaling $160 million.

7

The District Court also ordered an income tax surcharge, but that order was reversed on appeal.

8

As noted above, Judge Whipple began presiding over the case in 1997. This was one of his ﬁrst signiﬁcant orders

in the case.

9

“The school district must pay each charter school an amount based on the total enrollment of the charter school

multiplied by the tuition for each charter school student, multiplied by the projected daily attendance of those

students.” Jenkins v. Sch. Dist. of Kansas City, Mo., 73 F.Supp.2d 1058, 1065 (W.D.Mo.1999), rev’d, 216 F.3d 720

(8th Cir.2000) (en banc).

L.Ed.2d 31 (1990).

6

In 1993, the District Court approved the issuance of additional bonds totaling $160 million.

7

The District Court also ordered an income tax surcharge, but that order was reversed on appeal.

8

As noted above, Judge Whipple began presiding over the case in 1997. This was one of his ﬁrst signiﬁcant orders

in the case.

9

“The school district must pay each charter school an amount based on the total enrollment of the charter school

multiplied by the tuition for each charter school student, multiplied by the projected daily attendance of those

students.” Jenkins v. Sch. Dist. of Kansas City, Mo., 73 F.Supp.2d 1058, 1065 (W.D.Mo.1999), rev’d, 216 F.3d 720

(8th Cir.2000) (en banc).

10

The BFC is comprised of Missouri’s Governor, Lieutenant Governor, Attorney General, Auditor, Treasurer, and

Commissioner of Administration. Mo.Rev.Stat. § 33.300.

11

The District Court found that “the amount of § 160.415.2(5) withholding from FY 2000 to FY 2005 has been in the

range of $4M to $6M per year depending on the number of charter school students and KCMSD’s debt service

schedule.” Order of June 15, 2006, at 6.

12

Underlying all of the State’s arguments on appeal is the theory that the District Court unlawfully placed new

requirements on the State when the court granted the motion. We reject this theory at multiple points in this

opinion.

13

“The cases that Kokkonen, 511 U.S. at 380, 114 S.Ct. 1673, 128 L.Ed.2d 391, classiﬁes as examples of the

second head of ancillary jurisdiction do not use the term ancillary jurisdiction, but refer to ‘inherent’ or ‘implied’

power....” United States v. Meyer, 439 F.3d 855, 860 n. 7 (8th Cir.2006).

14

We note, however, that our ultimate conclusion would not change were we to apply de novo review, as the District

Court acted properly in all respects.

15

While we recognize that the KCMSD did not raise the issue at that time, nothing would have prompted it to do so.

The State did not restrict the funds that the KCMSD could withhold and use to repay the bonds until after the

District was declared unitary.

16

The State appears to have taken the warning to heart, as ﬁve months later it passed Section 160.415.2(5),

permitting the KCMSD to reduce its payments to charter schools by the amount needed for repayment of the

bonds.

17

The State argues that the District Court should have construed Paragraph 8 as limiting the State’s obligation to

support the levy. Reply Br. of Appellants at 24 (noting that the parties chose not to “set in stone the $4.96 levy for

the life of the bonds”). The State fails to note that the District Court did recognize that the plain language of

Paragraph 8 did not impose obligations on the State after the District was declared unitary.

 
 525 F.3d 682 United States Court of Appeals,
Eighth Circuit.
Chinyere JENKINS, Plaintiff-Appellee, v.
KANSAS CITY MISSOURI SCHOOL DISTRICT; American Federation of Teachers, Defendants-Appellees, State Defendants, Defendant-Appellant. Chinyere Jenkins, Plaintiff-Appellee, v.
Kansas City Missouri School District; American Federation of Teachers; State Defendants, DefendantsAppellees,
Missouri Charter Public School Association, Appellant.
Nos. 06-3318, 06-3587. |
Filed May 5, 2008.

ORDER
We have before us motions by the Jenkins Plaintiffs and the Kansas City, Missouri, School District (KCMSD) seeking attorney fees1 pursuant to 42 U.S.C. § 1988 and Eighth Circuit Rule 47C. The Jenkins Plaintiffs and the KCMSD were prevailing parties in these cases, and we find reasonable the amount of fees requested. We therefore grant the motions and order an award of $5,672.32 to the Jenkins Plaintiffs and $168,600.51 to the KCMSD.

All Citations 525 F.3d 682 (Mem)

Footnotes

1

The motions also delineate “costs” and “expenses” sought. We note that travel expenses and other out-of-pocket

expenses that a law ﬁrm normally would bill to its client are more properly characterized as part of an attorney fee

award. Pinkham v. Camex, Inc., 84 F.3d 292, 294-95 (8th Cir.1996) (per curiam).

 
 PHV
U.S. District Court Western District of Missouri (Kansas City) CIVIL DOCKET FOR CASE #: 4:77−cv−00420−DW

Jenkins et al v. Kansas City Missouri School District et al Assigned to: District Judge Dean Whipple Case in other court: 8TH CIRCUIT, 03−03037
8th Circuit Court of Appeals, 06−03318
8th Circuit Court of Appeals, 06−03587
8th Circuit Court of Appeals, 07−01891 Cause: 28:1983 Civil Rights Movant

Date Filed: 05/26/1977 Date Terminated: 08/13/2003 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

P.A.C.E.

represented by Larry D. Coleman Larry Delano Coleman 8801 E. 63rd Street Suite 208 Raytown, MO 64133 (816)737−3840 Fax: (816)737−3177 Email: lcole81937@aol.com ATTORNEY TO BE NOTICED

Plaintiff Chinyere Jenkins

represented by Arthur A. Benson Arthur Benson &Associates 4006 Central P. O. Box 119007 Kansas City, MO 64171 (816)531−6565 Fax: (816)531−6688 Email: abenson@bensonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jamie Kathryn Lansford Arthur Benson &Associates 4006 Central Avenue P. O. Box 119007 Kansas City, MO 64171−9007 (816) 531−6565 Fax: (816) 531−6688 Email: jlansford@bensonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Fred L. Slough Slough, Connealy, Irwin &Madden, LLC 1627 Main Suite 900 Kansas City, MO 64108−1325 (816)531−2224 Fax: (816)531−2147 Email: fslough@scimlaw.com TERMINATED: 07/29/2002 ATTORNEY TO BE NOTICED

V. Defendant
Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 1 of 25

Kansas City Missouri School District

represented by Allen R. Snyder Hogan &Hartson LLP 555 Thirteenth, NW Washington, DC 20004 (202)637−5600 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Charles R Brown Fields &Brown 1100 Main Street Suite 1600 Kanas City, MO 64105 816−474−1700 Fax: (816)421−6239 Email: fieldsandbrown@fieldsandbrown.com TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin J. Lanigan Hogan &Hartson LLP 555 Thirteenth, NW Washington, DC 20004 (202)637−5600 Fax: 202−637−5910 Email: kjlanigan@hhlaw.com LEAD ATTORNEY

Kirsten Anne Byrd Husch Blackwell LLP 4801 Main Street Suite 1000 Kansas City, MO 64112 (816)983−8000 Fax: (816) 983−8080 Email: kirsten.byrd@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maurice A. Watson Husch Blackwell LLP 4801 Main Street Suite 1000 Kansas City, MO 64112 (816) 983−8164 Fax: (816) 983−8080 Email: maurice.watson@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Patricia A. Brannan Hogan &Hartson LLP 555 Thirteenth, NW Washington, DC 20004 (202)637−5600 Fax: 202−637−5910 Email: pabrannan@hhlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:77­cv­420

Taylor Fields Fields &Brown 1100 Main Street Suite 1600
As of: 10/16/2012 11:34 AM CDT 2 of 25

Kansas City, MO 64105 (816) 474−1700 Fax: (816)421−6239 Email: tfields@fieldsandbrown.com TERMINATED: 10/02/2001 LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Borkowski Hogan &Hartson, LLP 555 13th Street NW Washington, DC 20004 202−637−5779 ATTORNEY TO BE NOTICED

Mark A Thornhill Spencer Fane Britt &Browne LLP 1000 Walnut Street Suite 1400 Kansas City, MO 64106 (816) 292−8119 Fax: 816−474−3216 Email: mthornhill@spencerfane.com TERMINATED: 10/02/2001 ATTORNEY TO BE NOTICED

Michael F. Delaney Spencer, Fane, Britt &Browne, OPKS 40 Corporate Woods 9401 Indian Creek Parkway Suite 700 Overland Park, KS 66210 (913) 345−8100 Fax: (913) 345−0736 Email: mdelaney@spencerfane.com TERMINATED: 10/02/2001 ATTORNEY TO BE NOTICED

Michael C Leitch Spencer, Fane, Britt &Browne, OPKS 40 Corporate Woods 9401 Indian Creek Parkway Suite 700 Overland Park, KS 66210 (913) 345−8100 Fax: (913) 345−0736 Email: mleitch@spencerfane.com TERMINATED: 10/02/2001

Hayley Elizabeth Hanson Husch Blackwell LLP 4801 Main Street Suite 1000 Kansas City, MO 64112 (816) 983−8377 Fax: (816) 983−8080 Email: hayley.hanson@huschblackwell.com ATTORNEY TO BE NOTICED

Defendant

American Federation of Teachers

represented by Brian Paul Wood Wickham &Wood, LLC 4317 S. River Blvd Independence, MO 64055

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 3 of 25

816−753−8751 Fax: 816−373−9540 Email: brian@wickham−wood.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Walter R Roher 1300 NW Jefferson Court Blue Springs, MO 64015 (816) 220−4130 ATTORNEY TO BE NOTICED

interested party Charles J McClain

represented by Charles J McClain Implementation Monitor 1211 McGee St 8th Floor Kansas City, MO 64106 816−418−7917 PRO SE

interested party
State Defendants party added pursuant to document #5132

represented by Alana M. Barragan−Scott Missouri Department of Revenue Director's Office Truman State Office Building P.O. Box 311 Jefferson City, MO 65105 (573) 751−5671 Fax: (573) 751−7150 Email: alana.barragan−scott@dor.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Yves Hall Missouri Attorney General's Office 207 West High Street Jefferson City, MO 65101 (573)751−8851 Fax: (573) 751−7094 Email: daniel.hall@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

James R. McAdams Missouri Department of Insurance 301 West High Street, Room 530 P.O. Box 690 Jefferson City, MO 65102−0690 (573) 751−1927 Fax: (573) 751−1165 Email: jim.mcadams@difp.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 4:77­cv­420

Maureen C Beekley MO Attorney General's Office P.O. Box 861 St. Louis, MO 63188 (314) 340−6816 Fax: (314) 340−7541 Email: maureen.beekley@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED As of: 10/16/2012 11:34 AM CDT 4 of 25

Intervenor Linwood F Tauheed TERMINATED: 07/30/2002
Intervenor Missouri Charter Public School Association TERMINATED: 09/11/2006

represented by Larry D. Coleman (See above for address) ATTORNEY TO BE NOTICED
represented by Charles W. Hatfield Stinson Morrison Hecker LLP − JC 230 W. McCarty Street Jefferson City, MO 65101 (573) 636−6827 Fax: (573) 636−6231 Email: chatfield@stinson.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian K. O'Bleness Stinson Morrison Hecker,LLP 1201 Walnut Suite 2800 Kansas City, MO 64106 (816)842−8600 Fax: 816−691−3495 Email: bobleness@stinsonmoheck.com ATTORNEY TO BE NOTICED

Date Filed 06/29/2001 07/03/2001 07/03/2001 07/10/2001
07/17/2001
07/18/2001 07/18/2001 07/23/2001
07/24/2001

# Docket Text
4924 MOTION for reconsideration of June 19, 2001 Order filed by Michael F. Delaney on behalf of Kansas City Missouri School District. suggestions in opposition due by 7/11/2001. (Kee, Georgia) (Entered: 07/09/2001)
Remark: This case was originally filed on May 26, 1977 with entries made on paper docket sheets. Entries and documents prior to June 29, 2001 can be viewed at the Federal Courthouse (Kee, Georgia) (Entered: 07/03/2001)
0 Remark: Transcript of Proceedings held on 6/27/01 is in paper form only and is being maintained in the case filed in the Clerk's Office (Kee, Georgia) (Entered: 07/10/2001)
4925 RESPONSE TO MOTION Plaintiffs' Response to KCMSD's Motion for Reconsideration filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. Reply Suggestions due by 7/23/2001. (Related document(s) 4924 ) (Lansford, Jamie) (Entered: 07/10/2001)
4926 MOTION to join With Counsel as Amicus Curiae in the Hearings on the District's Motion for Reconsideration of the Court's June 19, 2001 Order Regarding Powers of the Court's Monitor filed by Fred L. Slough on behalf of Chinyere Jenkins. suggestions in opposition due by 7/30/2001. (Slough, Fred) (Entered: 07/17/2001)
4927 STIPULATION filed by Charles R Brown on behalf of Kansas City Missouri School District. (Brown, Charles) (Entered: 07/18/2001)
4928 STATUS REPORT filed by Charles R Brown on behalf of Kansas City Missouri School District. (Brown, Charles) (Entered: 07/18/2001)
4929 SUGGESTIONS IN OPPOSITION Plaintiffs' Suggestions in Opposition To The Motion Of An Amicus Curiae To Participate In An Evidentiary Hearing filed by Arthur A. Benson on behalf of Chinyere Jenkins. Reply Suggestions due by 8/6/2001. (Related document(s) 4926 ) (Benson, Arthur) (Entered: 07/23/2001)
4930 SUGGESTIONS IN OPPOSITION TO LINDA LOLLIS' MOTION TO PARTICIPATE AS AMICUS CURIAE filed by Michael C Leitch on behalf of Kansas City Missouri School District. Reply Suggestions due by 8/6/2001.

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 5 of 25

08/06/2001 08/13/2001 08/13/2001
08/16/2001 08/16/2001

(Related document(s) 4926 ) (Leitch, Michael) (Entered: 07/24/2001)

4931 REPLY SUGGESTIONS to Plaintiffs' and KCMSD's Opposition to her Motion to Participate as Amicus Curiae filed by Fred L. Slough on behalf of all plaintiffs. (Related document(s) 4926 ) (Slough, Fred) (Entered: 08/06/2001)

4932 MOTION for attorney fees Motion for Disputed Statutory Attorney Fees and Expenses filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. suggestions in opposition due by 8/27/2001. (Lansford, Jamie) (Entered: 08/13/2001)

4933

SUGGESTIONS IN SUPPORT Memorandum in Support of Motion for Disputed Statutory Attorney Fees and Expenses filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Attachments: # 1 Attachment 1, Declaration of Benson# 2 Attachment 2 Differential Summary# 3 Attachment 3 Consumer Price Index# 4 Attachment 4 August 7, 2001 Letter# 5 Attachment 5 Summary of Requested Disputed Fees and Expenses)(Lansford, Jamie) (Entered: 08/13/2001)

4934 MEMORANDUM Professional Development Timeline filed by Charles R Brown on behalf of all parties. (Attachments: # 1 # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10)(Brown, Charles) (Entered: 08/16/2001)

4935 ORDER − by Judge Dean Whipple; The Court expects that any motion to revise the Court−ordered plans addressing academic achievement will be submitted on 8/31/2001, addition to the information regarding implementation of the existing plans.(Johnson, Yvonne) (Entered: 08/16/2001)

08/16/2001 08/16/2001 08/21/2001 08/27/2001
08/31/2001 08/31/2001

4936 Order − by Judge Dean Whipple; ORDERS that the Order of 6/19/2001, is hereby MODIFIED as as set forth above. The June 19, 2001, order remains as entered in all other respects. (Related Doc # 4924 ) (Johnson, Yvonne) (Entered: 08/16/2001)

4937 MEMORANDUM of Corrected Copy of Kansas City, Missouri School District's Professional Development Timeline for 2001−2002 filed by Charles R Brown on behalf of Kansas City Missouri School District. (Kee, Georgia) (Entered: 08/17/2001)

4938 Order − by Judge Dean Whipple; ORDERS that Linda Lollis's motion to participate as amicus curiae is DENIED as moot. (Related Doc # 4926 ) (Johnson, Yvonne) (Entered: 08/22/2001)

4939

SUGGESTIONS IN OPPOSITION TO PLAINTIFFS' MOTION FOR STATUTORY ATTORNEY FEES AND EXPENSES filed by Michael C Leitch on behalf of Kansas City Missouri School District. Reply Suggestions due by 9/10/2001. (Attachments: # 1 Exhibit KCMSD Attachment A# 2 Exhibit KCMSD Attachment B# 3 Exhibit KCMSD Attachment C# 4 Exhibit KCMSD Attachment D# 5 Exhibit KCMSD Attachment E)(Related document(s) 4932 ) (Leitch, Michael) (Entered: 08/27/2001)

4940 STATUS REPORT ON IMPLEMENTATION OF EDUCATIONAL PLANS filed by Michael C Leitch on behalf of Kansas City Missouri School District. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Leitch, Michael) (Entered: 08/31/2001)

4941 STATUS REPORT / CERTIFICATE OF COMPLETION OF STRATEGIC PLAN FOR HUMAN RESOURCES filed by Michael C Leitch on behalf of Kansas City Missouri School District. (Leitch, Michael) (Entered: 08/31/2001)

08/31/2001 09/10/2001 09/10/2001

4942 RESPONSE TO ORDER Response of Plaintiffs to the Court's Order of August 16, 2001 filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Lansford, Jamie) (Entered: 08/31/2001)
4943 MOTION for extension of time filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. suggestions in opposition due by 9/24/2001. (Related document(s) 4932 ) (Lansford, Jamie) Modified on 7/24/2002 to term motion (Kee, Georgia). (Entered: 09/10/2001)
4944 SUGGESTIONS IN SUPPORT of Motion for Extension of Time filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Lansford, Jamie) (Entered: 09/10/2001)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 6 of 25

09/11/2001

4945 MOTION for extension of time filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. suggestions in opposition due by 9/24/2001. (Related document(s) 4932 , 4943 ) (Lansford, Jamie) Modified on 7/24/2002 to term motion (Kee, Georgia). (Entered: 09/11/2001)

09/11/2001

4946 SUGGESTIONS IN SUPPORT of Motion for Extension of Time filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Lansford, Jamie) (Entered: 09/11/2001)

09/12/2001

4947 REPLY SUGGESTIONS Reply Suggestions in Support of Motion for Disputed Statutory Attorney Fees and Expenses filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Attachments: # 1 Attachments 1−4)(Related document(s) 4932 ) (Lansford, Jamie) (Entered: 09/12/2001)

09/13/2001

4948

ORDER − by Judge Dean Whipple; the parties to appear for conference in Courtroom #8B to be held on 9/18/2001 at 10:00 AM at Courtroom 8B, Kansas City, MO. At that conference, the IM will announce the investigator and present a budget for payment of the investigator and appropriate administrative support. (DW) (Johnson, Yvonne) (Entered: 09/13/2001)

09/13/2001

4949 OBJECTIONS TO REPORT AND RECOMMENDATION Response of AFT, Local 691 to KCMSD's Progress Report on Implementation of Instructional Plans filed by Brian Paul Wood on behalf of American Federation of Teachers. (Related document(s) 4945 ) (Wood, Brian) (Entered: 09/13/2001)

09/14/2001

4950 STATUS REPORT Plaintiffs' Additional Response to KCMSD's Progress Report on Implementation of Educational Plans filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Attachments: # 1 Attachment)(Lansford, Jamie) (Entered: 09/14/2001)

09/18/2001

4951 Minute Entry Dated: 9/18/2001 MINUTE ENTRY: Hearing; All parties present; Proposed Investigation Budget filed; file any written objections by 9/26/01; with hearing to any challenges to be held on 10/2/2001 at 09:00 AM at Courtroom 8B, Kansas City (DW) (Kee, Georgia) (Entered: 09/20/2001)

09/18/2001

4952 NOTICE OF FILING of Proposed Investigation Budget filed by pro se Charles J McClain. (Kee, Georgia) (Entered: 09/20/2001)

09/25/2001

4953 MOTION to withdraw/substitute attorney with Supporting Suggestions filed by Michael C Leitch on behalf of Kansas City Missouri School District. suggestions in opposition due by 10/9/2001. (Leitch, Michael) (Entered: 09/25/2001)

09/25/2001

4954 Joint ATTORNEY APPEARANCE of Hogan &Hartson, LLP and Blackwell Sanders Peper Martin, LLP filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Hanson, Hayley) (Entered: 09/25/2001)

09/25/2001

The document which was originally filed as document no. 4955, ATTORNEY APPEARANCE, has been deleted and refiled using the correct event title. Modified on 9/26/2001 (Jones, Robin). (Entered: 09/25/2001)

09/25/2001

4956 OBJECTIONS TO REPORT AND RECOMMENDATION Defendant's Response to the Proposed Investigation Budget filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Related document(s) 4953 ) (Hanson, Hayley) (Entered: 09/25/2001)

09/25/2001

4957 MOTION AND ORDER for Pro Hac Vice granting appearance of Attorney Patricia A. Brannan for Kansas City Missouri School District; Fee paid; receipt number 192718. (Jones, Robin) (Entered: 09/26/2001)

09/25/2001

4958 MOTION AND ORDER for Pro Hac Vice granting appearance of Attorney Kevin J. Lanigan for Kansas City Missouri School District; Fee paid; receipt number 192718. (Jones, Robin) (Entered: 09/26/2001)

09/25/2001

4959 MOTION AND ORDER for Pro Hac Vice granting appearance of Attorney Allen R. Snyder for Kansas City Missouri School District; Fee paid; receipt number 192718. (Jones, Robin) (Entered: 09/26/2001)

09/26/2001

4960 MEMORANDUM Plaintiffs' Response to the Proposed Investigative Budget filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins. (Lansford, Jamie)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 7 of 25

(Entered: 09/26/2001)

10/01/2001

4961 ATTORNEY APPEARANCE filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Hanson, Hayley) Additional attachment(s) added on 10/2/2001 (Kee, Georgia). (Entered: 10/01/2001)

10/01/2001

4962 REPLY SUGGESTIONS Concerning Progress Report on Implementation of Educational Plans filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Related document(s) 4953 ) (Hanson, Hayley) (Entered: 10/01/2001)

10/02/2001

4963 Order − by Judge Dean Whipple; granting defendant's motion to withdraw/substitute attorney (Related Doc # 4953 ) (Johnson, Yvonne) (Entered: 10/03/2001)

10/02/2001

4964

ORDER to show cause − by Judge Dean Whipple; ORDERS the KCMSD to show cause why the Court should approve the newly developed CSIP and the "timeline for Implementation of Professional Development Plan" attached as Exhibit C to the KCMSD's Progress Report on Implementation of Educational Plans as replacing the plans which this Court provisionally approved on 5/27/1999. The KCMSD shall respond to this order by 10/23/2001. If pls. elect to file a reply, they have 12 days after the KCMSD's response within which to file a reply.(Johnson, Yvonne) (Entered: 10/03/2001)

10/02/2001

4969 Minute Entry Dated: 10/2/2001 MINUTE ENTRY: Hearing ; All parties present; Budget discussions held; School District to act under the Order of this Court (Kee, Georgia) (Entered: 10/31/2001)

10/16/2001

4965

ORDER − by Judge Dean Whipple; The Court at the October 2, 2001, hearing, the KCMSD's objections regarding oerhead are overruled. The Court also overrules the parties' objections to providing funds for a "hotline telephone." The Court approves, operative on the date of this Order, the budget to fund the investigative system. (Johnson, Yvonne) (Entered: 10/17/2001)

10/23/2001

4966 RESPONSE TO ORDER Response of the Kansas City, Missouri School District to the October 2, 2001 Order filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Hanson, Hayley) (Entered: 10/23/2001)

10/24/2001

4967 ORDER − by Judge Dean Whipple; The parties to appear for a hearing to be held on 10/25/2001 at 9:00 AM at Courtroom 8B, Kansas City, MO. (DW) (Johnson, Yvonne) (Entered: 10/24/2001)

10/25/2001

4968 Minute Entry Dated: 10/25/2001 MINUTE ENTRY: Hearing − Discovery Dispute (Kee, Georgia) (Entered: 10/31/2001)

11/05/2001

4970 RESPONSE TO ORDER Plaintiffs' Response to the Court's Order of October 2, 2001 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Related document(s) 4963 ) (Benson, Arthur) (Entered: 11/05/2001)

11/09/2001

4971 Reply RESPONSE TO ORDER The Kansas City, Missouri School District's Reply to Response of Plaintiffs to the Court's Order of October 2, 2001 filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Hanson, Hayley) (Entered: 11/09/2001)

11/16/2001

4972

Order − by Judge Dean Whipple; The Court ORDERS the KCMSD to compensate plaintiffs' counsel and paralegals at the requested rates for work performed since July 1, 1999. Plts. motion for any fees and expenses relating to the Mayor's Educational Summit is DENIED. Plts. request for fees and expenses associated with the purchase and reading of books on urban school reform is DENIED. The Court GRANTS plaintiffs' motion for fees for the time spent monitoring coverage of the firing of Superintendent Demps. Plaintiffs' request for fees for Mickelson's services is DENIED. (Related Doc # 4932 ) (Johnson, Yvonne) (Entered: 11/16/2001)

11/16/2001

4973 ORDER − by Judge Dean Whipple; The parties are given until Dec. 17, 2001, to submit any proposed modifications of the educational plans to the Court for approval. It is further ORDERED that the parties are to reach agreement by Dec. 17, 2001, as to how and when the KCMSD will fully implement the Court−ordered

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 8 of 25

12/17/2001
12/28/2001 01/14/2002 01/22/2002 01/22/2002 01/24/2002 02/04/2002 02/04/2002
02/14/2002 02/15/2002 02/18/2002 02/21/2002

educational plans. On or befor 12/17/2001, the parties shall file a detailed report.(Johnson, Yvonne) (Entered: 11/16/2001)

4974

MOTION to amend ALL PARTIES' JOINT PROPOSAL FOR MODIFICATIONS OF EDUCATIONAL PLANS, REPORT ON THE STATUS OF IMPLEMENTATION, AND REQUEST FOR STATUS CONFERENCE filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. suggestions in opposition due by 1/2/2002. (Attachments: # 1 Appendix A# 2 Appendix B)(Hanson, Hayley) (Entered: 12/17/2001)

4975 ORDER by Judge Dean Whipple with status conference to be held on 1/11/2002 at 10:00 AM (Kee, Georgia) (Entered: 01/02/2002)

4976 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Helen J. Ragsdale on 1/3/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 01/16/2002)

4977 NOTICE OF DEPOSITION of Dr. Bernard Taylor on January 28, 2002 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Benson, Arthur) (Entered: 01/22/2002)

4978 NOTICE OF DEPOSITION of Michael Byrd, Linwood Tauheed, and Albert Mauro on 1/29/02; Harriet Plowman, Elma Warrick, and Robert Stringfield on 1/30/02; Lee Barnes and Pam Gard on 1/31/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Benson, Arthur) (Entered: 01/22/2002)

4979 NOTICE OF DEPOSITION of Linwood Tauheed on January 29, 2002 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Benson, Arthur) (Entered: 01/24/2002)

4980 ORDER by Judge Dean Whipple that the IM shall file his report, along with any recommendations he feels appropriate by 2/11/02. The report shall be filed under seal. The parties will be permitted 10 days to respond to the IM's report and recommendations (Kee, Georgia) (Entered: 02/04/2002)

4981

SCHEDULING ORDER by Judge Dean Whipple no later than 2/22/02, KCMSD will provide to the parties a template for and some school samples of a report reflecting the data in Attachment A to the Joint Proposal; no later than 2/15/02, KCMSD will provide to the parties a template for and some school samples of a report reflecting individual school performance on the Cycle Three of the Missouri School Improvement Program Standards; no later than 3/15/02 the parties will report to the Court any resolution of the remaining issues under the Accountability Plan and will suggest hearing dates to the Court on any issues that they are unable to resolve; no later than 4/1/02, KCMSD will provide to the parties a written proposal for modification of the Professional Development Plan; no later than 4/22/02, the parties will report to the Court any resolution of the remaining issues under the Professional Development Plan and will suggest hearing dates to the Court on any issues that they are unable to resolve (Kee, Georgia) (Entered: 02/04/2002)

4982 MOTION to intervene filed by Larry Delano Coleman on behalf of Linwood F Tauheed. suggestions in opposition due by 3/1/2002. (Attachments: # 1 Pleading)(Related document(s) 4936 ) (Coleman, Larry) Additional attachment(s) added on 2/20/2002 (Kee, Georgia). (Entered: 02/14/2002)

4984 COMPLAINT for Equitable Relief against American Federation of Teachers, Kansas City Missouri School District. Filed by Larry Delano Coleman on behalf of Linwood F Tauheed. Receipt number 00. Service due by 6/17/2002, (Beard, Melanie) (Entered: 02/20/2002)

4983 MOTION to seal document PARTIES' MOTION TO SEAL RESPONSES TO MONITOR'S REPORT filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. suggestions in opposition due by 3/5/2002. (Hanson, Hayley) (Entered: 02/18/2002)

4985 Order − by Judge Dean Whipple; granting parties' motion to seal document. (Related Doc # 4983 ) (Johnson, Yvonne) (Entered: 02/21/2002)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 9 of 25

02/21/2002

4986 MOTION for extension of time filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins, Kansas City Missouri School District. suggestions in opposition due by 3/8/2002. (Lansford, Jamie) (Entered: 02/21/2002)

02/21/2002

4987 SUGGESTIONS IN SUPPORT of Motion for Extension of Time filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins, Kansas City Missouri School District. (Lansford, Jamie) (Entered: 02/21/2002)

02/22/2002

4988 Order − by Judge Dean Whipple; granting motion for extension of time (Related Doc # 4986 ) parties to file their responses to the IM's report and recommendation due by 2/22/2002, (Johnson, Yvonne) (Entered: 02/22/2002)

02/22/2002

4989 CERTIFICATE OF SERVICE of Response of Plaintiffs to the Report of Investigation and Recommendations (SEALED) filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Benson, Arthur) (Entered: 02/22/2002)

02/23/2002

4994 Remark: SEALED DOCUMENT (Motion of dft KCSCDMO requesting that monitor's report and responses remain under seal w/memorandum in support and Dft's Responses to Implementation Monitor's Report and Recommendation) placed in vault (Kee, Georgia) (Entered: 03/07/2002)

02/25/2002

4990

MOTION for leave to file DEFENDANT SCHOOL DISTRICT OF KANSAS CITY, MISSOURI'S MOTION FOR LEAVE TO AMEND ITS RESPONSE TO THE IMPLEMENTATION MONITOR'S REPORT AND RECOMMENDATIONS filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. suggestions in opposition due by 3/12/2002. (Hanson, Hayley) (Entered: 02/25/2002)

02/26/2002

Remark: 1 Hard copy given to Courtroom Deputy on this date (Related documents(s) 4989 ) (Kee, Georgia) (Entered: 02/26/2002)

02/27/2002

4991 Order by Judge Dean Whipple entered on 2/27/2002 granting dft, the School District of Kansas City, MO's motion for leave to file an amended response to the Implementation Monitor's (IM) Report. (Related Doc # 4990 ) (Kee, Georgia) (Entered: 02/28/2002)

03/01/2002

4992 NOTICE OF DEPOSITION of Linwood Tauheed on March 18, 2002 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Benson, Arthur) (Entered: 03/01/2002)

03/01/2002

4993

SUGGESTIONS IN OPPOSITION Opposition of the School District of Kansas City, Missouri, Jenkins Plaintiffs and AFT local 691 to Proposed Intervenor Linwood Tauheed's Motion for Leave to Intervene as Plaintiff filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. Reply Suggestions due by 3/18/2002. (Related document(s) 4982 ) (Hanson, Hayley) (Entered: 03/01/2002)

03/13/2002

Minute Entry Dated: 3/13/2002 MINUTE ENTRY: Sealed Document (Kee, Georgia) (Entered: 03/15/2002)

03/14/2002

4995

MOTION to quash filed by Larry Delano Coleman on behalf of Linwood F Tauheed. suggestions in opposition due by 3/29/2002. (Related document(s) 4992 ) (Coleman, Larry) Additional attachment(s) added on 3/15/2002 (Kee, Georgia). Modified on 3/15/2002 to replace with correct document (Kee, Georgia). (Entered: 03/14/2002)

03/15/2002

4996 STATUS REPORT KCMSD's March 15, 2002 Status Report on Accountability Plan Issues filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Hanson, Hayley) (Entered: 03/15/2002)

03/18/2002

4997 Order − by Judge Dean Whipple; denying motion to quash (Related Doc # 4995 ) (Johnson, Yvonne) (Entered: 03/18/2002)

03/18/2002

4999 Remark:Entry of Appearance of Lindsay L. Wood on behalf of Dr. Bernard Tayor, Superintendent of dft School District of Kansas City, Missouri Inc (Kee, Georgia) (Entered: 03/21/2002)

03/19/2002

4998 ORDER − by Judge Dean Whipple; ORDERED that said motion is denied as moot. (related to doc. #4900) (Johnson, Yvonne) (Entered: 03/19/2002)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 10 of 25

03/20/2002 03/26/2002 03/26/2002 03/27/2002 03/29/2002 03/29/2002
04/01/2002 04/01/2002 04/01/2002 04/01/2002 04/01/2002 04/01/2002 04/01/2002 04/08/2002 04/11/2002 04/22/2002 04/22/2002

5000 ORDER by Judge Dean Whipple that the "point system" called for on pages 6−7 of the Accountability Plan will be satisfied with a public report, beginning with the 2002−03 school year. (Kee, Georgia) (Entered: 03/22/2002)
5001 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Michael Byrd taken on 3/11/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 03/27/2002)
5002 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Dr. Bernard Taylor taken on 3/13/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 03/27/2002)
5003 Order − by Judge Dean Whipple; denying Mr. Tauheed's motion to intervene (Related Doc # 4982 ) (Johnson, Yvonne) (Entered: 03/27/2002)
5004 ORDER − by Judge Dean Whipple; The Court GRANTS the KCMSD's Motion to withdraw its unitary status motion as it relates to the student achievement vestige.([related to ICMS doc. #4893])(Johnson, Yvonne) (Entered: 03/29/2002)
5005 ORDER − by Judge Dean Whipple; GRANTS the KCMSD motion for partial unitary status with regard to the facilities, budget, transportation, and racial balance vestiges of prior de jure segregation. ([related to ICMS doc. #4867]) (Johnson, Yvonne) (Entered: 03/29/2002)
5006 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Robert Stringfield taken on 3/20/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5007 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Elma Warrick taken on 3/20/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5008 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Patricia Kurtz taken on 3/20/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5009 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Lee Barnes taken on 3/21/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5010 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Harriett Plowman taken on 3/21/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5011 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Albert Mauro taken on 3/21/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5012 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Brenda Thomas taken on 3/21/02 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/03/2002)
5013 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Linwood Tauheed taken on 3/18/2002 filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Kee, Georgia) (Entered: 04/09/2002)
5014 ORDER − by Judge Dean Whipple; ORDERS that the IM's report and recommendations as well as the parties' responses thereto shall remain under seal until further roder of this Court.(Johnson, Yvonne) (Entered: 04/11/2002)
5015 STATUS REPORT of Plaintiffs and AFT Concerning Professional Development filed by Arthur A. Benson on behalf of Chinyere Jenkins. (Benson, Arthur) (Entered: 04/22/2002)
5016 STATUS REPORT OF KCMSD ON PROFESSIONAL DEVELOPMENT PLAN ISSUES DATED APRIL 22, 2002 filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Hanson, Hayley) (Entered: 04/22/2002)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 11 of 25

04/25/2002

5017 ORDER − by Judge Dean Whipple; ORDERED that KCMSD has to 5/1/2002 to file a detailed report setting forth the material called for in the scheduling order. (Johnson, Yvonne) (Entered: 04/25/2002)

05/01/2002

5018 STATUS REPORT OF KCMSD ON STATUS OF PROFESSIONAL DEVELOPMENT ISSUES filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Attachments: # 1 Exhibit A)(Hanson, Hayley) (Entered: 05/01/2002)

05/03/2002

5019 MOTION for permanent injunction Motion of Plaintiffs to Enjoin the KCMSD Defendants' Planned Expansion of the African Centered Approach filed by Jamie Kathryn Lansford on behalf of all plaintiffs. suggestions in opposition due by 5/20/2002. (Lansford, Jamie) (Entered: 05/03/2002)

05/08/2002

5020

Order − by Judge Dean Whipple; ORDERS that after the common form referenced in the "Resolution of Professional Development Issues" is developed, the KCMSD shall submit the form to the Implementation Monitor (IM) for his approval. The KCMSD shall submit the form to the IM by 6/14/2002. ORDERS that copies of all reports generated by the Professional Development Committees shall be made available to the IM. The IM shall file his initial status report by December 15, 2002. The IM shall file subsequent status reports on a quarterly basis thereafter. (Related Doc # 4974 ) (Johnson, Yvonne) (Entered: 05/08/2002)

05/09/2002

5021

SUGGESTIONS IN OPPOSITION TO MOTION OF PLAINTIFFS TO ENJOIN THE KCMSD DEFENDANTS' PLANNED EXPANSION OF THE AFRICAN CENTERED APPROACH filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. Reply Suggestions due by 5/24/2002. (Attachments: # 1)(Related document(s) 5019 ) (Hanson, Hayley) (Entered: 05/09/2002)

05/10/2002

5022 REPLY SUGGESTIONS Reply of Plaintiffs to KCMSD's Opposition to Plaintiffs' Motion to Enjoin KCMSD's Planned Expansion of the African Centered Approach filed by Jamie Kathryn Lansford on behalf of all plaintiffs. (Related document(s) 5019 ) (Lansford, Jamie) (Entered: 05/10/2002)

05/20/2002

5023

ORDER − by Judge Dean Whipple; ORDERS that Plaintiffs are entitled to proceed with discovery. A hearing date on Plaintiffs' motion to enjoin the KCMSD's expansion of the African Centered Approach to grade levels beyond those in which it is currently implemented is yet to be determined.(Johnson, Yvonne) (Entered: 05/21/2002)

05/23/2002

5024 MOTION for order to decertify class, to certify subclass and alternatively to dismiss class counsel due to bias and prejudice filed by Larry Delano Coleman on behalf of P.A.C.E.. suggestions in opposition due by 6/7/2002. (Coleman, Larry) (Entered: 05/23/2002)

06/07/2002

5025

MOTION for extension of time to file response/reply to Motion to Decertify Class, to Certify Subclass, and Alternatively to Dismiss Class Counsel Due to Bias and Prejudice filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. suggestions in opposition due by 6/24/2002. (Hanson, Hayley) (Entered: 06/07/2002)

06/07/2002

5026

SUGGESTIONS IN OPPOSITION PLAINTIFFS' SUGGESTIONS IN OPPOSITION TO MOTION TO DECERTIFY CLASS, TO CERTIFY SUBCLASS, AND ALTERNATIVELY, TO DISMISS CLASS COUNSEL DUE TO BIAS AND PREJUDICE filed by Jamie Kathryn Lansford on behalf of all plaintiffs. Reply Suggestions due by 6/24/2002. (Related document(s) 5024 ) (Lansford, Jamie) (Entered: 06/07/2002)

06/11/2002

5027 Order − by Judge Dean Whipple; granting KCMSD's motion for extension of time to file Response/Reply (Related Doc # 5025 ) suggestions in opposition to Motion to decertify class is due by 6/14/2002. (Johnson, Yvonne) (Entered: 06/11/2002)

06/13/2002

5028

RESPONSE TO MOTION to Decertify Class, to Certify Subclass, and Alternatively to Dismiss Class Counsel Due to Bias and Prejudice filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. Reply Suggestions due by 6/28/2002. (Related document(s) 5024 ) (Hanson, Hayley) Modified on 6/14/2002 to remove blank page #5 from pleading. (Jones, Robin). (Entered: 06/13/2002)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 12 of 25

06/28/2002 06/28/2002 07/24/2002 07/25/2002
08/05/2002
08/22/2002 08/23/2002 09/24/2002 10/09/2002 10/10/2002
10/11/2002 11/19/2002 12/13/2002 01/14/2003 01/17/2003 01/23/2003 01/23/2003

5030 REPLY SUGGESTIONS filed by Larry Delano Coleman on behalf of P.A.C.E.. (Related document(s) 5024 ) (Coleman, Larry) (Entered: 06/28/2002)
Document # 5029,Reply Suggestions, was filed in error. This document was re−filed as document # 5030 and this case will no longer have a document # 5029. Remark (Related documents(s) 5030 ) (Beard, Melanie) (Entered: 07/01/2002)
5031 Order − by Judge Dean Whipple; denying motion to decertify class, to certify subclass, and alternatively to dismiss class counsel due to bias and prejudice. (Related Doc # 5024 ) (Johnson, Yvonne) (Entered: 07/24/2002)
5032 NOTICE OF FILING Dismissal Without Prejudice of Plaintiffs' Motion to Enjoin the KCMSD Defendants' Planned Expansion of the African−Centered Approach filed by Jamie Kathryn Lansford on behalf of all plaintiffs. (Lansford, Jamie) (Entered: 07/25/2002)
5033 ORDER − by Judge Dean Whipple; The Court hereby GRANTS plaintiffs' motion and hereby dismisses Plaintiffs' Motion to Enjoin the KCMSD Defendants' Planned Expansion of the African−Centered Approach without prejudice to the refiling.([related to doc. #5032]) (Johnson, Yvonne) (Entered: 08/05/2002)
5034 NOTICE OF APPEAL to circuit court filed by Larry Delano Coleman on behalf of P.A.C.E.. Receipt number 200641. (Coleman, Larry) (Entered: 08/22/2002)
Delivered to USCA electronic notification of NOA and NOA Supp. Notice to parties/counsel by regular mail/e−mail. (Related documents(s) 5034 ) (Brogan, Shannon) (Entered: 08/23/2002)
5035 ORDER issued by Judge Dean Whipple granting the Implementation Monitor's request for approval of the Annual Budget for the 2003 fiscal year. (McIlvain, Kelly) (Entered: 09/24/2002)
RE−DELIVERED to USCA electronic notification of NOA and NOA Supp. Notice to parties/counsel by regular mail/e−mail. (Related documents(s) 5034 ) (Brogan, Shannon) (Entered: 10/09/2002)
5036 MEMORANDUM KCMSD'S Protective Exception to the Recommendation of the Implementation Monitor Dated October 1, 2002 filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District. (Attachments: # 1 Exhibit)(Hanson, Hayley) (Entered: 10/10/2002)
Appeal number info from USCA: 02−3487. Appendix by parties due 11/29/02. (Related documents(s) 5034 ) (Brogan, Shannon) (Entered: 10/11/2002)
5037 TRANSCRIPT of Proceedings held on 11/7/02 before Judge Judge Dean Whipple. Court Reporter: Barbara Buesing. (Kee, Georgia) (Entered: 11/19/2002)
5038 Implementation monitor's STATUS REPORT by Charles J McClain. This document is being maintained in the clerk's office records department. (Larson, Susan) (Entered: 12/13/2002)
5039 MANDATE of US COURT OF APPEALS as to 5034 Notice of Appeal filed by P.A.C.E.: The appeal is dismissed. Issued: 12/27/2002. (Brogan, Shannon) (Entered: 01/14/2003)
5040 NOTICE of filing by Kansas City Missouri School District Notice of Filing of Revised Professional Development Plan (Attachments: # 1 Exhibit A)(Hanson, Hayley) (Entered: 01/17/2003)
5041 MOTION for leave to file Suggestions in Excess of Fifteen Pages filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District Suggestions in opposition/response due by 2/7/2003 (Hanson, Hayley) (Entered: 01/23/2003)
5042 MOTION for order KCMSD's for Unitary Status filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District suggestions in opposition due by 2/24/2003. (Hanson, Hayley) Modified on 1/24/2003 to correct title of pleading (Kee, Georgia). (Entered: 01/23/2003)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 13 of 25

01/23/2003 01/23/2003 01/30/2003 01/31/2003
02/13/2003 02/13/2003 02/18/2003 02/20/2003 02/24/2003 02/26/2003 02/26/2003 02/26/2003 02/28/2003
02/28/2003

5043 SUGGESTIONS in support re 5042 MOTION for summary judgment KCMSD's Motion for Unitary Status filed by Hayley Elizabeth Hanson on behalf of Defendant Kansas City Missouri School District. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 5042 ) (Hanson, Hayley) (Entered: 01/23/2003)

5044 ORDER − granting KCMSD's 5041 motion for leave to file in excess of fifteen pages.. Signed by Judge Dean Whipple on 1/23/2003. (Johnson, Yvonne) (Entered: 01/23/2003)

5045 ORDER with hearing on Motion for Unitary Status to be held on 5/12/2003 at 9:00 A.M. at Courtroom 8B, Kansas City, MO.; Joint Proposed scheduling order due by 2/18/2003.. Signed by Judge Dean Whipple on 1/30/2003. (Johnson, Yvonne) (Entered: 01/30/2003)

5046

ORDER − The Court hereby APPROVES the IM's request to employ the services of Dr. D. Kent King, the commissioner of Elementary and Secondary Education for the State of Missouri, to select a team of professionals "to collect evidence regarding the Kansas City, Missouri School District's compliance and/or non−compliance with the Court ordered obligation for the KCMSD to provide professional development.". Signed by Judge Dean Whipple on 1/31/2003. (Johnson, Yvonne) (Entered: 01/31/2003)

5047 NOTICE of filing by Kansas City Missouri School District of Revised Assessment and Accountability Plans (Attachments: # 1 # 2)(Hanson, Hayley) (Entered: 02/13/2003)

5048 NOTICE of filing by Chinyere Jenkins Plaintiffs' Protective Exception To The Recommendation Of The Implementation Monitor Dated January 30, 2003 (Attachments: # 1 Monitor Letter, January 30, 2003)(Benson, Arthur) (Entered: 02/13/2003)

5049 PROPOSED SCHEDULING ORDER by Kansas City Missouri School District. (Hanson, Hayley) (Entered: 02/18/2003)

5050 NOTICE of filing by Kansas City Missouri School District re 5048 Notice of filing Opposition of the KCMSD to Plaintiffs' Protective Exception to the Recommendation of the Implementation Monitor Dated January 30, 2003 (Hanson, Hayley) (Entered: 02/20/2003)

5051 NOTICE of filing by Chinyere Jenkins Plaintiffs' Reply to KCMSD's Opposition to Plaintiffs' Protective Exception to the Recommendation of the Implementation Monitor Dated January 30, 2003 (Benson, Arthur) (Entered: 02/24/2003)

5052 NOTICE to take deposition of Defendant, School District of Kansas City, Missouri filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Benson, Arthur) (Entered: 02/26/2003)

5053 CERTIFICATE OF SERVICE by Chinyere Jenkins Plaintiffs' Certificate of Service for First Request for Production of Documents to Defendant KCMSD filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Benson, Arthur) (Entered: 02/26/2003)

5054 ORDER − Finding the deadlines proposed by the parties to be reasonable, the Court hereby adopts the parties' proposed scheduling order. 5049 . Signed by Judge Dean Whipple on 2/26/2003. (Johnson, Yvonne) (Entered: 02/26/2003)

5055

SUGGESTIONS in opposition re 5042 MOTION for summary judgment KCMSD's Motion for Unitary Status Plaintiffs' Response to KCMSD's Motion for Unitary Status filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins. Reply Suggestions due by 3/17/2003. (Related document(s) 5042 ) (Benson, Arthur) (Entered: 02/28/2003)

5056

SUGGESTIONS in support re 5042 MOTION for summary judgment KCMSD's Motion for Unitary Status AFT Local 691's Suggestions in Support of KCMSD'S Motion for Unitary Status filed by Brian Paul Wood on behalf of Defendant American Federation of Teachers. (Related document(s) 5042 ) (Wood, Brian) (Entered: 02/28/2003)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 14 of 25

03/10/2003
03/14/2003 03/24/2003 03/24/2003 03/24/2003 03/24/2003 03/24/2003 03/24/2003 03/24/2003 03/31/2003 03/31/2003 03/31/2003 03/31/2003 03/31/2003 03/31/2003 03/31/2003 04/07/2003

5057 REPLY SUGGESTIONS to motion re 5042 MOTION for summary judgment KCMSD's Motion for Unitary Status filed by Hayley Elizabeth Hanson on behalf of Defendant Kansas City Missouri School District. (Related document(s) 5042 ) (Hanson, Hayley) (Entered: 03/10/2003)
5058 ORDER − that the IM's second quarterly report shall be filed by 4/17/2003. Signed by Judge Dean Whipple on 3/14/2003. (Johnson, Yvonne) (Entered: 03/14/2003)
5059 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Ralph Corse filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5060 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Bonnie McKelvy filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5061 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Sally Newell filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5062 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Susan Bizorik filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5063 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Cathy Dennis filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5064 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Cathy Dennis, Vol. II filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5065 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Bernard Taylor, Jr filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/24/2003)
5066 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Stacia Brown filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5067 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Phyllis Budesheim filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5068 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Deborah Lee Kelly filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5069 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Kacy Lynn Parker filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5070 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Patricia Williams−Rowles filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5071 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Ralph Corse filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5072 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Richard C. Wallace, Jr filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 03/31/2003)
5073 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Deborah J. Fortner filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/07/2003)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 15 of 25

04/07/2003

5074 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Nancy Henson filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/07/2003)

04/07/2003

5075 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Monica Nance filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/07/2003)

04/07/2003

5076 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Jacqueline Brown filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/07/2003)

04/08/2003

5077 CERTIFICATE OF SERVICE by Chinyere Jenkins Certificate of Service of Plaintiffs' Responses to KCMSD's Request for Production of Documents filed by Jamie Kathryn Lansford on behalf of Plaintiff Chinyere Jenkins.(Lansford, Jamie) (Entered: 04/08/2003)

04/11/2003

5078 CERTIFICATE OF SERVICE of Responses to plfs' 3/21/03, request for production of documents and rquest for production of documents by Kansas City Missouri School District filed by Hayley Elizabeth Hanson on behalf of Defendant Kansas City Missouri School District.(Kee, Georgia) (Entered: 04/14/2003)

04/14/2003

5079 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Susan Bizorik filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/14/2003)

04/14/2003

5080 CERTIFICATE OF TRANSMISSION OF DEPOSITION of F. Robert Bocchino filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/14/2003)

04/14/2003

5081 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Enid Dodson filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/14/2003)

04/14/2003

5082 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Kris McQuitty filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/14/2003)

04/14/2003

5083 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Michael Podursky, Ph.D. filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/14/2003)

04/14/2003

5084 CERTIFICATE OF SERVICE by Chinyere Jenkins Certificate of Service filed by Jamie Kathryn Lansford on behalf of Plaintiff Chinyere Jenkins.(Lansford, Jamie) (Entered: 04/14/2003)

04/15/2003

5085 STATUS REPORT: Implentation Monitor's Report on the Status of Professional Development Activities in the Kansas City, Missouri School District by Charles J McClain. (Attachments: # 1 Notice of Exhibit Attachment)(Kee, Georgia) (Entered: 04/17/2003)

04/28/2003

5086 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Judy Morgan filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/28/2003)

04/28/2003

5087 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Albert P. Mauro filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/28/2003)

04/28/2003

5088 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Judy Pfannenstiel filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/28/2003)

04/28/2003

5089 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Judy Pfannenstiel, Volume II filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/28/2003)

04/28/2003

5090 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Sally Newell filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered:

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 16 of 25

04/28/2003 04/28/2003 05/05/2003 05/07/2003 05/08/2003 05/08/2003 05/12/2003 05/12/2003 05/12/2003 05/13/2003 05/13/2003 05/14/2003 05/15/2003 05/15/2003 05/15/2003 05/19/2003 06/03/2003
06/03/2003

04/28/2003)

5091 CERTIFICATE OF TRANSMISSION OF DEPOSITION of David A. Smith filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/28/2003)

5092 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Bernard Taylor, Jr., Ed.D filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 04/28/2003)

5093 AGREED UPON STATEMENT of Prior Stipulations by Kansas City Missouri School District. (Hanson, Hayley) (Entered: 05/05/2003)

5094 AGREED UPON STATEMENT of Uncontroverted Facts by Kansas City Missouri School District. (Hanson, Hayley) (Entered: 05/07/2003)

5095 TRIAL BRIEF by Chinyere Jenkins. (Lansford, Jamie) (Entered: 05/08/2003)

5096 TRIAL BRIEF by Kansas City Missouri School District. (Hanson, Hayley) (Entered: 05/08/2003)

5097 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Michael Podgursky filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 05/12/2003)

5098 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Philomina Harshaw filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 05/12/2003)

5099 Minute Entry for proceedings held before Judge Dean Whipple : Hearing on Motion for Unitary Status held on 5/12/2003. 1st day of hearing; All parties present. (Court Reporter Barbara Buesing.) (Kee, Georgia) (Entered: 05/19/2003)

5100 Minute Entry for proceedings held before Judge Dean Whipple : Hearing on Motion for Unitary Status held on 5/13/2003. 2nd day of hearing; All parties present. (Court Reporter Barbara Buesing.) (Kee, Georgia) (Entered: 05/19/2003)

5102 JOINT STIPULATION of Unconverted Facts by American Federation of Teachers, Chinyere Jenkins, Kansas City Missouri School District. (Kee, Georgia) (Entered: 05/19/2003)

5101 Minute Entry for proceedings held before Judge Dean Whipple : Hearing on Motion for Unitary Status held on 5/14/2003. 3rd day of hearing; All parties present. (Court Reporter Barbara Buesing.) (Kee, Georgia) (Entered: 05/19/2003)

5103 Minute Entry for proceedings held before Judge Dean Whipple : Hearing on Motion for Unitary Status held on 5/15/2003. 4th day of hearing; All parties present. (Court Reporter Barbara Buesing.) (Kee, Georgia) (Entered: 05/19/2003)

5104 EXHIBIT INDEX by Chinyere Jenkins.. (Kee, Georgia) (Entered: 05/19/2003)

5105 EXHIBIT INDEX by Kansas City Missouri School District.. (Kee, Georgia) (Entered: 05/19/2003)

5106 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Andrew Porter, Ph.D. filed by Arthur A. Benson on behalf of Plaintiff Chinyere Jenkins.(Kee, Georgia) (Entered: 05/19/2003)

5107

TRANSCRIPT of Hearing, Vol I (Pages 1−200) held on 5/12/03 before Judge Dean Whipple. Court Reporter: Barbara Buesing. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Kee, Georgia) (Entered: 06/04/2003)

5108

TRANSCRIPT of Hearing, Vol. II (Pages 201−401) held on 5/13/03 before Judge Dean Whipple. Court Reporter: Barbara Buesing. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Kee, Georgia) (Entered: 06/04/2003)

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06/03/2003
06/03/2003
06/06/2003 06/20/2003 06/23/2003 06/27/2003 08/11/2003 08/11/2003 08/11/2003
08/13/2003
08/13/2003 08/13/2003 08/13/2003 08/14/2003 08/15/2003 08/15/2003

5109

TRANSCRIPT of Hearing, Vol. III (Pages 402−610) held on 5/14/03 before Judge Dean Whipple. Court Reporter: Barbara Buesing. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Kee, Georgia) (Entered: 06/04/2003)

5110

TRANSCRIPT of Hearing, Vol. IV (Pages 611−838) held on 5/15/03 before Judge Dean Whipple. Court Reporter: Barbara Buesing. This is a text entry only − no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (Kee, Georgia) (Entered: 06/04/2003)

5111 PROPOSED FINDINGS OF FACT by Kansas City Missouri School District. (Hanson, Hayley) (Entered: 06/06/2003)

5112 PROPOSED FINDINGS OF FACT and Conclusions of Law by Chinyere Jenkins. (Kee, Georgia) (Entered: 06/24/2003)

***Remark: Document #5112 (Proposed Findings of Fact and Conclusions of Law) has been deleted and will be refiled. (Kee, Georgia) (Entered: 06/23/2003)

5113 PROPOSED FINDINGS OF FACT by Kansas City Missouri School District KCMSD's Reply to Plaintiffs' Proposed Findings of Fact and Conclusions of Law. (Hanson, Hayley) (Entered: 06/27/2003)

5114 ORDER − with a status conference to be held on Wednesday, 8/13/2003 at 10:00 A.M. at Courtroom 8B, Kansas City, MO. Signed by Judge Dean Whipple on 8/11/2003. (Johnson, Yvonne) (Entered: 08/11/2003)

5115 MOTION for extension of time filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School District Suggestions in opposition/response due by 8/26/2003 (Hanson, Hayley) (Entered: 08/11/2003)

5116 AMENDED ORDER − Counsel for plaintiffs, the KCMSD and the AFT to appear for a status conference in Courtroom 8B on Wednesday, 8/13/2003 at 11:00 A.M. at Courtroom 8B, Kansas City, MO. Signed by Judge Dean Whipple on 8/11/2003. (Johnson, Yvonne) (Entered: 08/11/2003)

5117

ORDER − granting "KCMSD" motion for Unitary Status 5042 ; ORDERED that the above−captioned case is DISMISSED WITH PREJUDICE. The Court, however, will retain jurisdiction over pending and future motions for attorneys' fees, expert fees and costs. Signed by Judge Dean Whipple on 8/13/2003. (Johnson, Yvonne) (Entered: 08/13/2003)

5118 CLERK'S JUDGMENT − Entered 8/13/2003 (Johnson, Yvonne) (Entered: 08/13/2003)

5119 AMENDED ORDER − granting "KCMSD" motion for Unitary Status [(second paragraph)date under I. Background, changed from 6/6/1984 to 9/17/1984]. Signed by Judge Dean Whipple on 8/13/2003. (Johnson, Yvonne) (Entered: 08/13/2003)

5120 NOTICE OF APPEAL by Chinyere Jenkins. Filing fee $ 105, receipt number 211928. (Attachments: # 1 Completed Form A# 2 Appellees' Form B (in blank))(Lansford, Jamie) (Entered: 08/13/2003)

Electronic notification of Notice of Appeal and docket sheet to US Court of Appeals 8th Circuit re 5120 Notice of Appeal (Brogan, Shannon) (Entered: 08/14/2003)

US COURT OF APPEALS 8TH CIRCUIT CASE NUMBER 03−3037 for 5120 Notice of Appeal filed by Chinyere Jenkins: Appendix by parties due 10−03−2003. (Brogan, Shannon) (Entered: 08/15/2003)

Transmitted record on Appeal to US Court of Appeals re 5120 Notice of Appeal: One red expandable folder of exhibits containing 4 volumes transcripts of hearing held 05−12−2003 through 05−15−2003 and Implementation Monitor's Report. (Brogan, Shannon) (Entered: 08/15/2003)

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08/25/2003 08/25/2003
09/09/2003 09/24/2003 09/25/2003 10/02/2003 10/07/2003
10/08/2003 10/17/2003 10/30/2003 02/22/2006 02/22/2006 02/22/2006

5121 MOTION for attorney fees Motion for Disputed Statutory Attorney Fees filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins Suggestions in opposition/response due by 9/9/2003 (Lansford, Jamie) (Entered: 08/25/2003)

5122

SUGGESTIONS in support re 5121 MOTION for attorney fees Motion for Disputed Statutory Attorney Fees Suggestions in Support of Motion for Disputed Statutory Attorney Fees filed by Jamie Kathryn Lansford on behalf of Plaintiff Chinyere Jenkins. (Attachments: # 1 Exhibit Exhibit 1, Summary Recap# 2 Exhibit Exhibit 2, Itemizations of Time and Expense# 3 Exhibit Exhibit 3, Declaration of Benson)(Related document(s) 5121 ) (Lansford, Jamie) (Entered: 08/25/2003)

5123

SUGGESTIONS in opposition re 5121 MOTION for attorney fees Motion for Disputed Statutory Attorney Fees and Expenses filed by Hayley Elizabeth Hanson on behalf of Defendant Kansas City Missouri School District. Reply Suggestions due by 9/24/2003. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 5121 ) (Hanson, Hayley) (Entered: 09/09/2003)

5124

MOTION for leave to file excess pages Limit and Suggestions in Support filed by Jamie Kathryn Lansford on behalf of Chinyere Jenkins Suggestions in opposition/response due by 10/9/2003 (Lansford, Jamie) Modified on 9/25/2003 to delete duplicate title in entry (Kee, Georgia). Additional attachment(s) added on 9/25/2003 (Kee, Georgia). (Entered: 09/24/2003)

***Remark: Document #5125 (Reply Suggestions) has been deleted and attached as an Exhibit to Document #5124. The motion has not be ruled by the Court. (Kee, Georgia) (Entered: 09/25/2003)

5125 ORDER − granting plaintiff's motion for leave to file excess page limits 5124 . Signed by Judge Dean Whipple on 10/2/2003. (Johnson, Yvonne) (Entered: 10/02/2003)

5126

REPLY SUGGESTIONS to motion re 5121 MOTION for attorney fees Motion for Disputed Statutory Attorney Fees Reply Suggestions in Support of Motion for Statutory Attorney Fees and Expenses filed by Jamie Kathryn Lansford on behalf of Plaintiff Chinyere Jenkins. (Attachments: # 1 Exhibit Exhibit 1, Summary Recap# 2 Exhibit Reply Exhibit 2, Itemizations of Time and Expense# 3 Exhibit Reply Exhibit 3, Declaration of Benson)(Related document(s) 5121 ) (Lansford, Jamie) (Entered: 10/07/2003)

5127 MANDATE of US COURT OF APPEALS as to 5120 Notice of Appeal filed by Chinyere Jenkins: Appellants' motion to dismiss the appeal is granted. Issued 09−30−2003. (Brogan, Shannon) (Entered: 10/08/2003)

RETURNED FROM USCA regarding 5120 Notice of Appeal: Four volumes transcripts and one volume exhibits. Appeal case no. 03−3037 closed. (Brogan, Shannon) (Entered: 10/17/2003)

5128 ORDER − granting motion for attorney fees in the amount of $113,743.27. 5121 Signed by Judge Dean Whipple on 10/30/2003. (Johnson, Yvonne) (Entered: 10/30/2003)

5129 Joint MOTION for leave to file excess pages filed byHayley Elizabeth Hanson on behalf of Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers Suggestions in opposition/response due by 3/9/2006 unless otherwise directed by the court (Hanson, Hayley) (Entered: 02/22/2006)

5130

Joint MOTION to enforce order/judgment Incorporating Agreement Involving Dismissal of State Defendants filed byHayley Elizabeth Hanson on behalf of Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers Suggestions in opposition/response due by 3/9/2006 unless otherwise directed by the court (Hanson, Hayley) (Entered: 02/22/2006)

5131

SUGGESTIONS in support re 5130 Joint MOTION to enforce order/judgment Incorporating Agreement Involving Dismissal of State Defendants filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. (Related document(s) 5130 ) (Hanson, Hayley) (Entered: 02/22/2006)

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03/14/2006 03/14/2006
03/14/2006 03/20/2006 03/23/2006 03/24/2006 03/27/2006
03/29/2006
04/13/2006
06/15/2006
06/23/2006 06/23/2006
06/23/2006 06/23/2006

The document originally filed as Document No. 5132, ORDER − granting plaintiffs 5129 motion for leave to file excess pages, has been DELETED as the incorrect document was filed. A corrected document will be refiled. Modified on 3/14/2006 (Carr, Lori). (Entered: 03/14/2006)

NOTICE OF DOCKET MODIFICATION. The document originally filed as document no. 5132, ORDER − granting plaintiffs 5129 motion for leave to file excess pages, has been DELETED from the entry. A corrected document will be filed. This is a text entry only − no document is attached. (Carr, Lori) (Entered: 03/14/2006)

5132 ORDER − granting plaintiffs 5129 motion for leave to file excess pages. Defendants shall respond within fifteen (15) days of this Order. Signed by Judge Dean Whipple on 3/14/2006.(Carr, Lori) (Entered: 03/14/2006)

5133 MAIL RETURNED as undeliverable; attempted not known. Mail sent to Walter R. Roher. (Related document(s) 5132 ) (Carr, Lori) (Entered: 03/22/2006)

5134 MAIL RETURNED as undeliverable. Mail sent to Walter R. Roher. (Related document(s) 5132 ) (Carr, Lori) (Entered: 03/23/2006)

5135 Motion to allow John Borkowski to appear pro hac vice (Pro Hac fee $50 receipt number 1226937) filed by Maurice A. Watson on behalf of Kansas City Missouri School District (Watson, Maurice) (Entered: 03/24/2006)

ORDER granting 5135 motion to appear pro hac vice approved by Clerk of Court. Attorney John Borkowski for Kansas City Missouri School District allowed to appear pro hac vice. This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached. (Carr, Lori) (Entered: 03/27/2006)

5136

SUGGESTIONS in opposition re 5130 Joint MOTION to enforce order/judgment Incorporating Agreement Involving Dismissal of State Defendants filed by James R. McAdams on behalf of interested party State Defendants. Reply suggestions due by 4/13/2006 unless otherwise directed by the court (Attachments: # 1 Docket No. 4760 (order))(Related document(s) 5130 ) (McAdams, James) (Entered: 03/29/2006)

5137

REPLY SUGGESTIONS to motion re 5130 Joint MOTION to enforce order/judgment Joint Reply to Suggestion sin Opposition to the Joint Motion to Enforce by Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers (Hanson, Hayley) Modified on 4/14/2006 to correct event title (Jones, Robin). (Entered: 04/13/2006)

5138

ORDER − granting joint 5130 motion to enforce order judgment. The State Defendants are hereby enjoined from requiring KCMSD to divert any funds from the $4.95 per $100 property tax levy to the charter schools until 2014 or until KCMSD has completed repayment of the court−ordered desegregation bonds, whichever occurs first. Signed by Judge Dean Whipple on 6/15/2006. (Johnson, Yvonne) (Entered: 06/15/2006)

5139 MOTION to intervene on an EXPEDITED basis filed by Brian K. O'Bleness on behalf of Missouri Charter Public School Association Suggestions in opposition/response due by 7/10/2006 unless otherwise directed by the court (O'Bleness, Brian) (Entered: 06/23/2006)

5140

SUGGESTIONS in support re 5139 MOTION to intervene on an EXPEDITED basis filed by Brian K. O'Bleness on behalf of Intervnor Missouri Charter Public School Association. (Related document(s) 5139 ) (O'Bleness, Brian) Modified on 6/23/2006 (Kee, Georgia). Modified on 6/23/2006 to correct the party filing the document (Kee, Georgia). (Entered: 06/23/2006)

5141 NOTICE of appearance by Brian K. O'Bleness on behalf of Missouri Charter Public School Association (O'Bleness, Brian) (Entered: 06/23/2006)

5142 MOTION for reconsideration re 5138 Order on Motion to Enforce Order/Judgment, filed by Brian K. O'Bleness on behalf of Missouri Charter Public School Association Suggestions in opposition/response due by 7/10/2006 unless

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 20 of 25

otherwise directed by the court (Related document(s) 5138 ) (O'Bleness, Brian) (Entered: 06/23/2006)

06/23/2006

5143

SUGGESTIONS in support re 5142 MOTION for reconsideration re 5138 Order on Motion to Enforce Order/Judgment, filed by Brian K. O'Bleness on behalf of Intervenor Missouri Charter Public School Association. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23)(Related document(s) 5142 ) (O'Bleness, Brian) (Entered: 06/23/2006)

06/26/2006

5144 MAIL RETURNED as undeliverable. Mail sent to Walter R Roher. (Related document(s) 5138 ) (Kee, Georgia) (Entered: 06/26/2006)

06/26/2006

5145 DISCLOSURE OF CORPORATE INTERESTS filed by Brian K. O'Bleness on behalf of Intervenor Missouri Charter Public School Association.(O'Bleness, Brian) (Entered: 06/26/2006)

06/26/2006

5146

MOTION for reconsideration re 5138 Order on Motion to Enforce Order/Judgment, or in the Alternative to Amend and Clarify, and Stay this Court's Order of June 15, 2006 filed by James R. McAdams on behalf of State Defendants Suggestions in opposition/response due by 7/11/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit 1)(Related document(s) 5138 ) (McAdams, James) (Entered: 06/26/2006)

07/07/2006

5147

SUGGESTIONS in opposition re 5139 MOTION to intervene on an EXPEDITED basis filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. Reply suggestions due by 7/24/2006 unless otherwise directed by the court (Related document(s) 5139 ) (Hanson, Hayley) (Entered: 07/07/2006)

07/10/2006

5148 SUGGESTIONS in opposition re 5139 MOTION to intervene on an EXPEDITED basis filed by James R. McAdams on behalf of interested party State Defendants. Reply suggestions due by 7/25/2006 unless otherwise directed by the court (Related document(s) 5139 ) (McAdams, James) (Entered: 07/10/2006)

07/11/2006

5149

SUGGESTIONS in opposition re 5142 MOTION for reconsideration re 5138 Order on Motion to Enforce Order/Judgment, filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. Reply suggestions due by 7/26/2006 unless otherwise directed by the court (Related document(s) 5142 ) (Hanson, Hayley) (Entered: 07/11/2006)

07/17/2006

5150 NOTICE OF APPEAL as to 5138 Order on Motion to Enforce Order/Judgment, by State Defendants. Filing fee $ 455, receipt number 1305603. (McAdams, James) (Entered: 07/17/2006)

07/24/2006

5151

REPLY SUGGESTIONS to motion re 5146 MOTION for reconsideration re 5138 Order on Motion to Enforce Order/Judgment, or in the Alternative to Amend and Clarify, and Stay this Court's Order of June 15, 2006 filed by James R. McAdams on behalf of interested party State Defendants. (Related document(s) 5146 ) (McAdams, James) (Entered: 07/24/2006)

07/24/2006

5152 REPLY SUGGESTIONS to motion re 5139 MOTION to intervene on an EXPEDITED basis filed by Brian K. O'Bleness on behalf of Intervenor Missouri Charter Public School Association. (Related document(s) 5139 ) (O'Bleness, Brian) (Entered: 07/24/2006)

09/11/2006

5153 ORDER − denying MCPSA's 5139 motion to intervene; and (2) MCPSA's request for leave to participate as amicus curiae is DENIED. Signed by Judge Dean Whipple on 9/11/2006. (Johnson, Yvonne) (Entered: 09/13/2006)

09/11/2006

5154

ORDER − granting in part 5146 motion for reconsideration. ORDERS that the 1996 Settlement Agreement requires the State to permit KCMSD to withhold local property tax levy funds for repayment of court−ordered leasehold revenue bonds from transfer to the charter schools, pursuant to Mo. Rev Stat. Section 160.415.2(5), through the initial retirement date of the court−ordered bonds in

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09/14/2006 09/14/2006 09/19/2006 09/21/2006
09/21/2006

2008. Signed by Judge Dean Whipple on 9/11/2006. (Johnson, Yvonne) (Entered: 09/13/2006)

5155 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 5150 Notice of Appeal (Crespo, Wil) (Entered: 09/14/2006)

***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Thu Sep 14 14:52:56 CDT 2006 (Crespo, Wil) (Entered: 09/14/2006)

USCA Case Number from 8th Circuit Court of Appeals is 06−3318 for 5150 Notice of Appeal filed by State Defendants, attorney's Appendix (3 copies) due 10/30/06. THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Crespo, Wil) (Entered: 09/19/2006)

5156

Joint MOTION to amend/correct 5154 Order on Motion for Reconsideration, filed by Hayley Elizabeth Hanson on behalf of Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers Suggestions in opposition/response due by 10/6/2006 unless otherwise directed by the court (Related document(s) 5154 ) (Hanson, Hayley) (Entered: 09/21/2006)

5157

SUGGESTIONS in support re 5156 Joint MOTION to amend/correct 5154 Order on Motion for Reconsideration, filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. (Attachments: # 1 Exhibit No.1)(Related document(s) 5156 ) (Hanson, Hayley) (Entered: 09/21/2006)

10/02/2006
10/11/2006 10/12/2006 10/12/2006 10/12/2006
10/16/2006

5158

SUGGESTIONS in opposition re 5156 Joint MOTION to amend/correct 5154 Order on Motion for Reconsideration, filed by Alana M. Barragan−Scott on behalf of interested party State Defendants. Reply suggestions due by 10/17/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit 1)(Related document(s) 5156 ) (Barragan−Scott, Alana) (Entered: 10/02/2006)

5159 NOTICE OF APPEAL as to 5153 Order on Motion to Intervene by Missouri Charter Public School Association. Filing fee $ 455, receipt number 245956. (Attachments: # 1 Exhibit Form A)(O'Bleness, Brian) (Entered: 10/11/2006)

5160 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 5159 Notice of Appeal (Crespo, Wil) (Entered: 10/12/2006)

***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Thu Oct 12 10:32:27 CDT 2006 (Crespo, Wil) (Entered: 10/12/2006)

5161

REPLY SUGGESTIONS to motion re 5156 Joint MOTION to amend/correct 5154 Order on Motion for Reconsideration, filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. (Related document(s) 5156 ) (Hanson, Hayley) (Entered: 10/12/2006)

5162

Joint MOTION to enforce order/judgment issued on June 15, 2006 filed by Hayley Elizabeth Hanson on behalf of Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers Suggestions in opposition/response due by 10/31/2006 unless otherwise directed by the court (Hanson, Hayley) (Entered: 10/16/2006)

10/16/2006 10/17/2006 10/30/2006

5163

SUGGESTIONS in support re 5162 Joint MOTION to enforce order/judgment issued on June 15, 2006 filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. (Attachments: # 1 Exhibit A − Affidavit of Veronica G. Sarmiento)(Related document(s) 5162 ) (Hanson, Hayley) (Entered: 10/16/2006)

USCA Case Number from 8th Circuit Court of Appeals is 06−3587 for 5159 Notice of Appeal filed by Missouri Charter Public School Association, attorney's Appendix (3 copies) due 11/27/06. THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Crespo, Wil) (Entered: 10/17/2006)

5164 SUGGESTIONS in opposition re 5162 Joint MOTION to enforce order/judgment issued on June 15, 2006 filed by Alana M. Barragan−Scott on behalf of interested party State Defendants. Reply suggestions due by 11/14/2006 unless otherwise

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 22 of 25

directed by the court (Related document(s) 5162 ) (Barragan−Scott, Alana) (Entered: 10/30/2006)

11/13/2006

5165

REPLY SUGGESTIONS to motion re 5162 Joint MOTION to enforce order/judgment issued on June 15, 2006 in Response to Former State Defendant's Suggestions in Opposition filed by Hayley Elizabeth Hanson on behalf of Plaintiff Chinyere Jenkins, Defendants Kansas City Missouri School District, American Federation of Teachers. (Attachments: # 1 Affidavit)(Related document(s) 5162 ) (Hanson, Hayley) (Entered: 11/13/2006)

11/21/2006

5166

ORDER − granting plaintiff's joint 5156 motion to amend/correct the Court's September 11, 2006 Order. The Court GRANTS Plaintiffs' motion and VACATES its September 11, 2006 Order. The Court will enter an amended order forthwith. Signed by Judge Dean Whipple on 11/21/2006. (Johnson, Yvonne) (Entered: 11/21/2006)

11/21/2006

5167

ORDER − the Court hereby ORDERS that the 1996 Settlement Agreement requires the State to permit KCMSD to withhold local property tax levy funds for repayment of court−ordered leasehold revenue bonds from transfer to the charter schools, pursuant to Mo. Rev Stat. Section 160.415.2(5), through the respective initial retirement dates of each of the Court−ordered leasehold revenue bond obligations. Signed by Judge Dean Whipple on 11/21/2006. (Johnson, Yvonne) (Entered: 11/21/2006)

11/28/2006

5168 AMENDED NOTICE OF APPEAL as to 5167 Order,, 5166 Order on Motion to Amend/Correct, by State Defendants. Filing fee $ 455, receipt number amended. (Barragan−Scott, Alana) Modified on 11/28/2006 to reflect Amended (Price, Jackie). (Entered: 11/28/2006)

11/29/2006

5169 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 5168 Notice of Appeal (Crespo, Wil) (Entered: 11/29/2006)

11/29/2006

***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Wed Nov 29 13:12:34 CST 2006 (Crespo, Wil) (Entered: 11/29/2006)

12/04/2006

5172 MAIL RETURNED as undeliverable. Mail sent to Walter R. Roher. (Related document(s) 5166 ) (Kee, Georgia) (Entered: 12/08/2006)

12/05/2006

5170 MOTION for attorney fees filed by Hayley Elizabeth Hanson on behalf of Kansas City Missouri School DistrictSuggestions in opposition/response due by 12/20/2006 unless otherwise directed by the court. (Hanson, Hayley) (Entered: 12/05/2006)

12/05/2006

5171

SUGGESTIONS in support re 5170 MOTION for attorney fees filed by Hayley Elizabeth Hanson on behalf of Defendant Kansas City Missouri School District. (Attachments: # 1 Exhibit A)(Related document(s) 5170 ) (Hanson, Hayley) Additional attachment(s) added on 12/6/2006 (Kee, Georgia). (Entered: 12/05/2006)

12/06/2006

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 12/5/06 as Document No. 5171, Suggestions In Support. Additional exhibits attached. This is a text entry only − no document is attached. (Kee, Georgia) (Entered: 12/06/2006)

12/20/2006

5173 SUGGESTIONS in opposition re 5170 MOTION for attorney fees filed by Alana M. Barragan−Scott on behalf of interested party State Defendants. Reply suggestions due by 1/4/2007 unless otherwise directed by the court (Related document(s) 5170 ) (Barragan−Scott, Alana) (Entered: 12/20/2006)

01/03/2007

5174

REPLY SUGGESTIONS to motion re 5170 MOTION for attorney fees and Reply to Former State Defendants' Suggestions in Opposition to Same filed by Maurice A. Watson on behalf of Defendant Kansas City Missouri School District. (Attachments: # 1 Affidavit of Patricia Brannan)(Related document(s) 5170 ) (Watson, Maurice) (Entered: 01/03/2007)

01/31/2007

5175 ORDER − denying plaintiff's 5162 motion to enforce order judgment issued on June 15, 2007. Signed by Judge Dean Whipple on 1/31/2006. (Johnson, Yvonne) (Entered: 01/31/2007)

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03/05/2007
03/06/2007
03/14/2007 03/22/2007 03/23/2007 03/26/2007 03/26/2007 04/12/2007 04/13/2007 04/16/2007 04/16/2007 04/18/2007 08/07/2007
08/07/2007

5176

MOTION for leave to file Notice of Appeal filed by Maurice A. Watson on behalf of Kansas City Missouri School District. Suggestions in opposition/response due by 3/22/2007 unless otherwise directed by the court. (Attachments: # 1 Notice of Appeal)(Watson, Maurice) Modified on 3/6/2007 to add Appellant's Form A as the document originally filed was improperly formatted. Counsel has been contacted and advised that a corrected document be served on all case participants. (Carr, Lori). (Entered: 03/05/2007)

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 3/5/07 as Document No. 5176, MOTION for leave to file. Appellant's Form A, which is an exhibit to the Motion, was improperly formatted at the time of the original filing. The corrected document (Appellant's Form A) has been added. Counsel has been contacted and advised that a corrected document must be served on all case participants. (Related Document 5176 ) This is a text entry only − no document is attached. (Carr, Lori) (Entered: 03/06/2007)

5177 ORDER − granting KCMSD &AFT #691's 5176 motion for leave to file an appeal. The notice of appeal shall be fied within five (5) days of this Order. Signed by Judge Dean Whipple on 3/14/2007. (Johnson, Yvonne) (Entered: 03/14/2007)

5178 MOTION for leave to appeal filed by Maurice A. Watson on behalf of Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers. Suggestions in opposition/response due by 4/6/2007 unless otherwise directed by the court. (Attachments: # 1)(Watson, Maurice) (Entered: 03/22/2007)

5179 NOTICE of appearance by Kirsten Anne Byrd on behalf of Kansas City Missouri School District (Byrd, Kirsten) (Entered: 03/23/2007)

NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 3/23/07 as Document No. 5179, NOTICE of appearance. The document has been deleted as it was filed in the incorrect case. This is a text entry only − no document is attached. (Kee, Georgia) (Entered: 03/26/2007)

5180 NOTICE of appearance by Kirsten Anne Byrd on behalf of Kansas City Missouri School District (Byrd, Kirsten) (Entered: 03/26/2007)

5181 ORDER − granting 5178 motion for leave to appeal. Movants shall file their Notice of Appeal within five (5) days of this Order. Signed by Judge Dean Whipple on 4/12/2007. (Johnson, Yvonne) (Entered: 04/12/2007)

5182 NOTICE OF APPEAL as to 5175 Order on Motion to Enforce Order/Judgment by Chinyere Jenkins, Kansas City Missouri School District, American Federation of Teachers. Filing fee $ 455, receipt number 1506437. (Attachments: # 1 Exhibit Appellant's Form A)(Watson, Maurice) (Entered: 04/13/2007)

5183 TRANSMISSION of Notice of Appeal Supplement to US Court of Appeals, 8th Circuit via electronic mail. Related document 5182 Notice of Appeal,. (Crespo, Wil) (Entered: 04/16/2007)

***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Mon Apr 16 12:16:36 CDT 2007 (Court of Appeals3, ) (Entered: 04/16/2007)

5184 USCA Case Number from 8th Circuit Court of Appeals is 07−1891 for 5182 Notice of Appeal, filed by Chinyere Jenkins, American Federation of Teachers, Kansas City Missouri School District. Briefing schedule entered by the Court of Appeals is attached. (Attachments: # 1)(Crespo, Wil) (Entered: 04/18/2007)

5185

USCA Judgment as to 5182 Notice of Appeal, filed by Chinyere Jenkins, American Federation of Teachers, Kansas City Missouri School District This is a preliminary judgment of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. Appellant's motion to dismiss the appeal is granted. The appeal is hereby dismissed. (Crespo, Wil) (Entered: 08/07/2007)

5186 MANDATE of US COURT OF APPEALS as to 5182 Notice of Appeal, filed by Chinyere Jenkins, American Federation of Teachers, Kansas City Missouri School District with mandate issued on 8/7/07. (Crespo, Wil) (Entered: 08/07/2007)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 24 of 25

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5187

USCA Judgment and/or Opinion as to 5150 Notice of Appeal filed by State Defendants This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. It is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. (Attachments: # 1 Opinion)(Crespo, Wil) (Entered: 02/28/2008)

5188

USCA Judgment and/or Opinion as to 5159 Notice of Appeal filed by Missouri Charter Public School Association This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. It is hereby ordered and adjudged that the judgment of the district court in this cause is affirmed in accordance with the opinion of this Court. (Attachments: # 1 Opinion)(Crespo, Wil) (Entered: 02/28/2008)

5189

USCA Corrected Judgment and/or Opinion as to 5159 Notice of Appeal filed by Missouri Charter Public School Association This is a preliminary corrected judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. This judgment corrects the judgment dated February 27, 2008, by correcting the caption. (Attachments: # 1 Opinion)(Crespo, Wil) (Entered: 03/28/2008)

5190

USCA Corrected Judgment and/or Opinion as to 5150 Notice of Appeal filed by State Defendants This is a preliminary corrected judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. This judgment corrects the judgment dated February 27, 2008, by deleting parties fromthe caption. (Attachments: # 1 Opinion)(Crespo, Wil) (Entered: 03/28/2008)

5191 MANDATE of US COURT OF APPEALS as to 5159 Notice of Appeal filed by Missouri Charter Public School Association with mandate issued on 4/4/08. (Crespo, Wil) (Entered: 04/04/2008)

5192 MANDATE of US COURT OF APPEALS as to 5150 Notice of Appeal filed by State Defendants with mandate issued on 4/29/08. (Crespo, Wil) (Entered: 04/29/2008)

5193 NOTICE of filing by Kansas City Missouri School District Letter to Judge Whipple attaching recent 8th Circuit Order regarding Motion for Attorneys Fees (Attachments: # 1 Exhibit 8th Circui t Order)(Hanson, Hayley) (Entered: 05/19/2008)

5194 ORDER granting KCMSD's Motion for Attorneys Fees (Doc. 5170). Signed by District Judge Dean Whipple on 05/23/08. (Willis, Kathy) (Entered: 05/23/2008)

5195 MAIL RETURNED as undeliverable. Mail sent to Walter Roher. (Related document(s) 5194 ) (McDowell, Shelly) (Entered: 06/02/2008)

Case: 4:77­cv­420 As of: 10/16/2012 11:34 AM CDT 25 of 25