United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-3572

Michael C. Liddell, a minor, by * Minnie Liddell, his mother and next * friend; Kendra Liddell, a minor, * by Minnie Liddell, her mother and next * friend; Minnie Liddell; Roderick D. * LeGrand, a minor, by Lois LeGrand, * his mother and next friend; Lois * LeGrand; Clodis Yarber, a minor, by * Samuel Yarber, his father and next * Appeal from the Unite d States friend; Samuel Yarber; Earline Caldwell; * District Court for the Lillie Caldwell; Gwendolyn Daniels; * Eastern District o f Missouri. National Association for the * Advancement of Colored People; * United States of America; *
* Plaintiffs-Appellees; *
* City of St. Louis; *
* Plaintiff; *
*
v. * * The Board of Education of the City of * St. Louis; Hattie R. Jackson, President, * Board of Education of the City of St. * Louis; Rev. Earl E. Nance, Jr., a * member of the Board of Education of * the City of St. Louis; Renni B. Shuter, *2

a member of the Board of Education; * of the City of St. Louis; Paula V. * Smith, a member of the Board of Educa- * tion of the City of St. Louis; Dr. Albert * D. Bender, Sr., a member of the Board * of Education of the City of St. Louis; * Eddie G. Davis, a member of the Board * of Education of the City of St. Louis; * Dr. John P. Mahoney, a member of the * Board of Education of the City of St. * Louis; Marybeth McBryan, a member * of the Board of Education of the City * of St. Louis; Thomas M. Nolan, a * member of the Board of Education of * the City of St. Louis; William Purdy, a * member of the Board of Education of * the City of St. Louis; Robbyn G. Wahby, * a member of the Board of Education of * the City of St. Louis; Madye Henson * Whithead, a member of the Board of * Education of the City of St. Louis; * Dr. Cleveland Hammonds, Jr., Super- * intendent of Schools for the City of St. * Louis; *
* Defendants-Appellees; *
* Ronald Leggett, St. Louis Collector of * Revenue; *

Defendant; *
* State of Missouri; Mel Carnahan, * Governor of the State of Missouri; * Jeremiah (Jay) W. Nixon, Attorney * General; Bob Holden, Treasurer; * Richard A. Hanson, Commissioner of * Administration; Robert E. Bartman, *3

Commissioner of Education; Missouri * State Board of Education, and its * members; Thomas R. Davis; * Sharon M. Williams; Peter F. * Herschend; Jacqueline D. Wellington; * Betty E. Preston; Russell V. Thompson; * Rice Pete Burns; William Kahn; *
* Defendants-Appellants; *
* Special School District of St. Louis * County; Affton Board of Education; * Bayless Board of Education; Brentwood * Board of Education; Clayton Board of * Education; Ferguson-Florissant Board * of Education; Hancock Place Board of * Education; Hazelwood Board of * Education; Jennings Board of Education; * Kirkwood Board of Education; LaDue * Board of Education; Lindbergh Board of * Education; Maplewood-Richmond * Heights Board of Education; Mehlville * Board of Education; Normandy Board * of Education; Parkway Board of * Education; Pattonville Board of Educa- * tion; Ritenour Board of Education; * Riverview Gardens Board of Education; * Rockwood Board of Education; * University City Board of Education; * Valley Park Board of Education; * Webster Groves Board of Education; * Wellston Board of Education; *
* Defendants-Appellees; *
*4

St. Louis County; Buzz Westfall, County * Executive; James Baker, Director of * Administration, St. Louis County, * Missouri; Robert H. Peterson, Collector * of St. Louis County "Contract Account," * St. Louis County, Missouri;The St. * Louis Career Education District; *
* Defendants; *

* St. Louis Teachers' Union, Local 420, * AFT, AFL-CIO; *
* Intervenor Below. *

Submitted: February 25, 1998 Filed: April 28, 1998

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

The State of Missouri (State) appeals from the district court & s July 22, 199 7 order requiring the State to pay the Special School District (SSD) the costs of providing special education services to city voluntary interdi strict transfer students between 1985 and 1996, and

ordering the parties to resolve by September 19, 1997, any differences regarding the

method for calculating the amounts due. We affirm in part, and reverse and remand in part.5

In September 1983, the SSD, the Board of Education of the City of St. Loui s (City Board), the United States, and the Liddell and Caldwell plaintiffs, entered into an agreement and submitted a pro posed plan to settle claims relating to special education services arising from the pending desegregation litigation. In 1985, following a fairness hearing, the district court approved the special education plan. The plan addressed , inter alia , education services for Phase I students--students with mild disabilities who receive itinerant and resource classroom special educat ion services and who spend less than 50% of their instructional time in self-contained special education classes. Under the plan, the SSD was to provide necessary special education services to Phase I stu dents who transfer to suburban school districts from the city under the voluntar y interdistrict transfer plan. The plan required t he State to reimburse the SSD for the per pupil costs of providing these services. In approving the plan, the district court ordered the State to pay the reasonable, actual unreimbursed costs of implementing th e approved plan, including unreimbursed per pupil costs, certain administ rative costs, and transportation. Additionally, the per pupil reimbursement was to be determined b y averaging the costs directly att ributable to Phase I students. In other words, the direct
costs of the teacher, classroom rental, and direct supervisory time attributed to Phase I students would be charged to the State.

In March 1995, the SSD r equested that the State reimburse it for $7,425,000 in costs for providing special education services to P hase I transfer students for the 1994- 95 scho ol year. The SSD indicated that in prior years, the SSD had chosen to forego Sta te reimbursement for Phase I costs, but that, because of an increase in the number of vol untary transfer students being serviced by the SSD and its severe budge t problems , the SSD was seeking reimbursement. The SSD also estimated that th e State & s obligations for the 1995-96 school year would be a similar amount. The district court d id not rule on this request. In May 1996, the SSD supplemented its request to inclu de costs for the school years from 1986 through 1996. Again, no action wa s taken.6

In November 1996, the SSD filed a motion with the district court seeking State reimbursement for the school years from 1985-86 through 1996-97, or alternatively for release from the special education plan. The SSD indicated that it and the State ha d agreed on the methodology for calculating the costs for the 1994-95 school year, and the SSD sought an opportuni ty to reach an agreement with the State on the calculations for the other years. The State opposed the motion, arguing, inter alia, that the doctrines of waiver and l aches barred the SSD & s request for the years before 1994, and that th e SSD & s request for diagnostic, screening, and evaluation costs were not reimbursable.

Th e district court granted the SSD & s motion for reimbursement. The cour t concluded that waiver or laches did not apply. Accordingly, the district court ordered the State to resolve i ts differences about the method for calculating the amounts due by S e ptember 19, 1997. SSD submitted its position statement showing an amount due of $27,113,177, and with interest, $39,976,542.

On appeal, the State reiterates its arguments that it is not obligated to continu e funding because there is no interdistrict violation under Missouri v. Jenkins , 515 U.S

. 70 (1995), unitary status has been achieved, and there are no longer victims of de jure violation. We reject the State & s renewed objections to its general funding obligations for the reasons stated in Liddell v. Board of Education , 126 F.3d 1049, 1055-59 (8th Cir. 1997), cert. denied , 118 S. Ct. 1164 (1998). We decline to reconsider that decision.

We agree with the State and the City Board that the SSD & s ten-year delay i n seeking reimbursem ent and its 1994 declaration that it had previously chosen to forego reimburseme nt for Phase I costs before the 1994-95 school year constitutes an express waiver of its rig ht to receive these costs before 1994. See Johnson v. Zerbst , 304 U.S. 458, 464 (1938) (waiver is intentional relinquishment or aband onment of a known right). In addition, we conclude that the doctrine of laches also applies here to avoid7

unfairnes s resulting from the prosecution of stale claims. See Goodman v. McDonnell Douglas Corp. , 606 F.2d 800, 805 (8th Cir. 1979), cert. denied , 446 U.S. 913 (1980). T o prove laches, courts look to whether the delay in exercising a right is unreasonable

a n d unexcused and whether the delay results in prejudice for the defendant. See id. at 804. We conclude that SSD has no t adequately explained the ten-year delay in seeking reimbursement, and that the paucity of records hinde rs the State & s ability to retroactively apply the complex reimbursement formula.

We also agree with the State that diagnostic, screening, and evaluation costs are not reimbursable under the spe cial education plan. We understand from counsel at oral argument that these diagnostic costs for the school years beginning 1994-95 have been quantified, and that the parties have reached an agreement as to the methodology fo r computing other reimbursable costs for the years after 1994-95. We t rust that the parties will come to a resolution of the amount s in issue without further court intervention. We note that the State is not obligated to pay interest on the reimbursable costs.

Accor dingly, we reverse the district court & s order requiring the State to pay th e SSD for all reimbursable costs from 1986 through the 1993-94 school year, and remand fo r a determination of reimbursable costs under the special education plan, minu s diagnost ic, screening, and evaluation costs, beginning from the 1994-95 school year through the 1996-97 school year.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.