United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 97-2009

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; * 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; *3

Richard A. Hanson, Commissioner of * Administration; Robert E. Bartman, * Commissioner of Education; Missouri * State Board of Education, and its * members; Thomas R. Davis; Gary M. * Cunningham; Sharon M. Williams; * Peter F. Herschend; Jacqueline D. * Wellington; Betty E. Preston; Russell V. * Thompson; Rice Pete Burns; *
* 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; St. Louis * County; Buzz Westfall, County * Executive; James Baker, Director of * Administration, St. Louis County, *4

Missouri; Robert H. Peterson, Collector * of St. Louis County "Contract Account," * St. Louis County, Missouri; *
* Defendants-Appellees; *
* The St. Louis Career Education * District; *
* Defendant;

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

Submitted: July 17, 1997
Fi led: September 25, 1997

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

HEANEY, Circuit Judge.

The Sta te of Missouri (State) appeals from an Apri l 10, 19 97 order of the United States District Court fo r the Eastern District of Missouri denying the State’ s
mo tion to end all efforts to recruit and admit ne w students into the voluntary interdistrict transfer pla n (VITP) for the 1997-98 school year. The State contend s th at the district court acted contrary to the Unite d Stat es Supreme Court’s decision in Missouri v. Jenkins , 115 S. Ct. 2038 (1995) ( Jenkins III ) in denying it s motion. We do not believe that it did.See Liddell v. Board of Educ. , 882 F.2d 298 (8th Cir. 1989); Liddell v. Board 1 of Educ. , 873 F. 2d 191 ( 8th Cir. 1989); Liddell v. Missouri , 731 F.2d 1294 (8th Cir.)

5 On Apri l 23, 1996, the district court appointed Dr

. Will iamH. Danforth as settlement coordinator with th e responsibi lity and authority to conduct conferences with all person s involved in the case, to secure the services of e xperts, and to stimulate negotiations among th e parties

. Dr. Danforth continues in this capacity as o f the dat e of this opinion. Moreover, the district cour t has under consideration a motion by the State to have the St. Louis School District declared unitary. Given th e long history of state-mandated, segregated schools, th e comp lexityof the issues, and the difficulty o f develop ing a plan that will ensure that students of al l

ra ces will have a continuing equal opportunity for a quality, integrated education, the district c ourt did not abuse i ts discretion in denying the State’s motion t o phase out the voluntary transfer of black city student s to county districts pending settlement negotiations. We

enco urage the parties to proceed diligently with thei r negotiatio ns and believe that the settlement coordinator shou ld be permitted to complete this importan t assignment. We urge the district court to a scertain the status of the negotiations, and in the event th e negotiatio ns reach an impasse, the district court should promptl yrule on the pending unitary status motion. W e affirm the order of the district court.

Background

The early history of this litigation is chronicled i n
our earlier opinions and will only be summarized here. 1(en banc), cert. denied , 469 U. S. 816 (1984) ( Liddell VII ); Liddell v. Board of Educ. ,

677 F.2d 626 (8th Cir.), cert. denied , 459 U.S. 877 (1982) ( Liddell V ); Liddell v. Board of Educ. , 667 F.2d 643 (8th Cir.), cert. denied , 4 54 U.S. 1081 (1981) ( Liddell III ); and Adams v. United States , 620 F.2d 1277 (8th Cir.) (en banc), cert. denied , 449 U.S. 826 (1980).

6 In 1972 , the plaintiffs brought an action against th e Board of E ducation of the City of St. Louis (City Board) alleging that the city schools were segregate d by race as

a ma tter of state law and practice. Thereafter, th e State ofOnlyone party, the Adams plaintiffs, petitioned the Supreme Court for a writ 2 of certiorari. The State did not file a petition.

7 Missouri was joined as a party defendant. Th e plaintiffs and the United States as amicus submitted desegregatio n plans to the district court. The district court held a tria l and found no constitutional violation. W e reversed, holding that prior to 1865 the Stat e prohibited the creation or maintenance of schools for te aching black children to read or write and that, after tha t date until 1980, the City Board and the State were jointl y responsible for maintaining a segregated school system

. Adams v. United States , 620 F.2d 1277, 1280 (8th Cir. ) (enbanc), cert. denied , 449 U.S. 826 (1980). We furthe r 2 noted that the City Board and the State failed to tak e effe ctive measures to desegregate the school system i n the years immediately following Brown v. Board o f Educati on , 347 U.S. 483 (1954). We remanded the matte r to the district court with directions to develop an d implement a plan to integrate the St. Louis publi c schools.

On re mand, the district court ordered th e implementation of a mandatory desegregation plan withi n the city schools with funding to be shared eq ually by the City B oard and the State. The district court directe d the City B oard and the State to develop and submit plans to a lleviate the segregated conditions within the cit y schools th rough interdistrict transfers between the city and the suburban school districts. Liddell v. Board o f Educ. , 491 F. Supp. 351 (E.D. Mo. 1980). The Liddell and Caldwell plaintiffs (representing black parents an d students) and the Adams plaintiffs (representing whit eThe Liddell plaintiffs contended that the plan did not go far enough to remedy 3 the defendants’ discriminatory practices; and the Adams plaintiffs contended that the district court had gone too far in its St. Louis School District reassignment plan.

8 parents and students) appealed. The State contended tha t 3 it should not be required to pay any of the costs o f integration and specifically challenged paragraph 12 o f the district court’s order which provided:9 12. The State defendants, the Unite d States, and the St. Louis Boar d of Education are ordered and directed as follows: a) To make every feasible effort t o work out with the appropriate schoo l districts in the St. Louis County an d de velop, for 1980-81 implementation, a voluntary, cooperative plan of pupi l exchanges which will assist in alleviatin g th e school segregation in the City of St

. Louis , and which also insures that inter

district pupil transfers will not impair the desegregation of the St. Louis schoo l district ordered herein, and submit suc h plan to the Court for approval by July 1 , 1980.

Id. at 353. We affirmed, noting that “the voluntar y exchanges contemplated by section [12](a) must be viewed

as a valid part of the attempt to fashion a workabl e remedy wit hin the City.” Liddell v. Board of Educ. , 667 F.2d 643, 651 (8th Cir.), cert. denied , 454 U.S. 108 1 (1981).

OnAugust 24, 1981, the district court added eightee n St

. Louis County suburban school districts (Count y Districts) as parties defendant and entered v arious other orde rs relating to desegregation of the city schools

. The C ounty Districts, the State, and the City Boar d app ealed. The State contended that it could not b e required to implement a remedy affecting Coun ty Districts unti l a hearing had been held. The Adams plaintiff s contend ed the district court could order the State t o
cons olidate city and county schools if necessary t o effe ctuate desegregation of the city schools and tha t10

these acti ons could be taken without additional hearings

or lia bility findings. The City Board argued that th e district c ourt orders were not reviewable. We held that the court order adding additional parties was no t appealable. We stated:

The di strict court has yet to issue an orde r that impacts any of the county schools or units of government. Thus, we are being asked not to rule on a specific plan but to anticipate wha t the district court may have in mind and t o instruct it as to what it can or cannot do. The most that can be saidThe settlement agreement further provided “that after a school district receives 4 an order granting it fina

l judgment, it has a continuing obligation to: ‘cooperate in the recruitment and promotion of transfers . . . .’” Liddell v. Board of Edu c. , 96 F.3d 1091, 1094 (8th Cir. 1996) (quoting Appellants’ Jt. App. at 108).

11 is that the district court has indicated in one
or m ore of its orders that it may take action s whic h impact significantly on St. Louis Count y school districts.
Liddell v. Board of Educ. , 677 F.2d 626, 641 (8th Cir.), cert. denied , 459 U.S. 877 (1982). We remanded to th e dist rict court for action consistent with our opinion.

On August 6, 1982, the district court entered a n order in which it disclosed that if it held a hearing and fou nd that the County Districts had committe d constitutional violations that contributed to th e segr egation of the St. Louis School District, it woul d order the consolidation of the city and county schools

. The court scheduled interdistrict liability hearings

. Before the hearings were held, however, the City Board , the Liddel l plaintiffs, the Caldwell plaintiffs, and all eig hteen County Districts entered into a settlemen t agreement that settled the plaintiffs’ interdistric t clai ms against the eighteen County Districts. Th e agreement provided for voluntary interdistrict transfers betw een city and county schools and included fisca l incen tives to be funded by the State to encourage th e transfers. Each district receiving sufficient transfers with in five years to satisfy its desegregatio n obligations would receive a final judgment. The State, 4 havi ng been found to be the primary constitutiona l violator, was ordered to fund the transfer of cit yIn a subsequent opinion, Liddell v. Board of Educ. , 851 F.2d 1104, 1105 (8th 5 Cir. 1988), we noted that 12,000 black students were then enrolled in the County Districts. This number has remained relatively co nstant up to the present. The County Districts s tate in their current briefs that they are willing to continue to accept th e voluntary transfers under the terms of the settlement agreement. Most, if not all, of the County Districts have achieved the plan ratios or goals estab lished under the settlement agreement.

12 students to the County Districts. We affirmed th e district court in an en banc opinion and set forth ou r
reas ons in great detail. Liddell v. Missouri ( Liddel l VII ), 731 F.2d 1294, 1301-09 (8th Cir.) (en banc), cert. denied , 496 U.S. 816 (1984). 513

In Lid dell v. Board of Education , 873 F.2d 191, 19 2 (8th Cir. 1989), the State appealed from a distric t court orde r “clarifying the extent of Missouri’s funding obligation s for interdistrict student transfers in the . . . desegr egation case.” It took the position that when a County District had achieved its designatedplan ratio, the St ate was no longer required to pay for transfers

. The State sought further clarification of its fundin g obligation. We stated:

Missouri’s obligation is to fund interdistric t transfers necessary to reach 1 5,000 students--no more, no less. . . . The parties agree th e total number of students currently attendin g countyschools under the interdistrict transfe r progr amis less than 15,000. Thus, Missouri’ s obligation to fund interdistrict transfers ha s not yet been fulfilled. Insof ar as the district court’s order restoring state funding complie s with this portion of our opinion, we affirm

. Furthermore, the parties shall take whateve r steps are necessary to ensure that 15,000 cit y students are enrolled in the c ounty schools. In light of the parties’ progress to date, thi s goal is attainable, and it must be achieved a t the earliest opportunity.

Id. at 194. No petition for a writ of certiorari wa s filed. We were asked to clarify our opinion a few months later. We again stated:

1. M issouri is obligated to fund voluntary trans fer students up to a total of 15,000 , regardless of any individual county district’ s Plan Ratio and/or Plan Goal attainment. . . .

2. The state’s obligation to fund th e voluntarytransfer of students will continu e14

until such time as the state i s relieved of that obligation.
Liddell v. Board of Educ. , 882 F.2d 298, 299 (8th Cir

. 1989)

. Again, no petition for a writ of certiorari wa s filed.15

In Oct ober 1991, the State filed the first of thre e motions to declare the St. Louis School Distr ict unitary, terminate desegregation funding, and release al l defe ndants from court supervision. The United States , the City Board, and the plaintiffs responded tha t consideration of unitary status was premature . The State did not re ply to the responses. Instead, it filed a new motion on May 7, 1992, requesting partial uni tary status. The district court held that while the State’s reques t
was premature, the State was entitled to answers t o certain discovery requests because a future declaratio n of unitary

status might be warranted. The State did not appeal this ruling to this court.

In Nove mber 1993, the State filed an amended motio n for unitar y status. It informed the court that it would be prepared to present evidence in support of its amended motion within one year. Eleven months later the Stat e asked the district court for a hearing date o n its motion for uni tary status. On February 28, 1995, the distric t court scheduled a hearing for September 1995. Thi s hearing was later rescheduled for March 1996.

On Janu ary 4, 1996, while the unitary status motio n was still pending, the State filed a motion to terminate the VITP on the basis of Jenkins III . It described it s motio n as conditional and not ripe for court actio n becau se it desired a ruling on its motion only if th e
cou rt failed to enter a finding of unitary statu s following the hearing scheduled for March 199 6. The City Boar d and the plaintiffs requested that the hearing o n unitary status be postponed while the State’s Jenkins III moti on was adjudicated. The plaintiffs, joined by th e16

Unite d States, alternatively requested that the cour t appoi nt a settlement coordinator to resolve th e litigat ion without the need for trial. The State agai n requ ested that the Jenkins III issue be addressed onl y after a hearing on its unitary status motion and the n only if the unitary status motion was not granted i n full. On February 15, 1996, the court denied the State’ s Jenki ns III motion as not ripe. It also denied th e request to postpone the hearing on unitary status an d decided that the17

appo intment of a settlement coordinator would be mor e beneficial after a hearing on the State’s unitary status motion had been held. The court stated that:

[It] agreed with plaintiffs that the bes t resolution of this case would be an agreed-upon plan for ending Court supervision of the St

. Louis Public Schools. The Court however i s reluctant to continue the hearing. It may well be th at the possibility for settlement will b e greater following the hearing, at which time the appointment of a Settlement Co ordinator would be appropriate and beneficial.
G(193 9)96 at 2. The State did not appeal the orde r denying its Jenkins III motion.

In March 1996, following extensive discovery, th e dist rict court conducted a three-week unitary statu s hearing. Following the hearing, it appointedDr. William H. Danforth, former Chancellor of Washington Universit y of St. Louis, as the settlement coordinator. It gave the coordinator broad powers designed to stimulat e nego tiations and directed the parties and their counse l to a ttend all meetings scheduled by the settlemen t coord inator and to participate in good faith in th e negotia tions. It ordered “that all components of th e settlement agreement now in force shall continue as they are currently operating.” G(2062)96.

On June 26, 1996, the district court, responding t o a motion by the State, held that settlement negotiations woul d be kept confidential, that the settlemen t coordin ator should not recommend to the court how th e case shoul d be resolved, and refused to set a time limit18

for the parties to continue negotiations, indicating i t
was confident that the settlement coordinator woul d proceed with all diligence. G(2134)96.

On July 24, 1996, the State appealed district cour t orders G(2 062)96 and G(2134)96, and sought a stay of the interdistrict component of the desegregation remed y pend ing appeal of the order appointing the settlemen t coordinator. It sought alternative remedies limiting its obli gations under the desegregation plan. The distric t19

court deni ed motions for a stay pending appeal on August 14, 1996. G(2175)96. This court and Justice Thomas, as Circuit Justice, denied substantially similar motions for a stay. T he State again appealed the denial of the stay motion. This court consolidated and then dismissed al l pending appeals. We noted that G(2062)96 and G(2134)9 6

were interlocutory and related to settlement procedure s and cas e management and could not be characterized a s appeals from orders denying an injunction. We state d that “[a] district court, particularly in schoo l desegregat ion cases, has broad discretion to control its dock et and has the necessary flexibility to shap e remedies t hat adjust public and private needs.” Liddell

v. Bo ard of Educ. , 105 F.3d 1208, 1212 (8th Cir. 1997)

. With respect to G(2175)96, we stated:

The S tate argues that the district court erre d be cause it effectively denied its motion fo r unita rystatus. We disagree. The distric t court has yet to rule on the State’s unitar y status motion. The district court in this case has not refused to rule on the State’s motio n that the St. Louis School District be declare d unit ary. It has simply postponed post-hearin g briefing and deferred final ruling on thi s matter. We cannot review a matter that has not bee n ruled on by the district court. We lac k ju risdiction over the State’s claim that th e district court has erroneously denied its motion for unitary status.

Id

. The State filed a petition for rehearing en banc ; that petition was denied on May 7, 1997. No petition for a writ of certiorari was filed.20

OnMarch 14, 1997, the State moved the district cour t for an order directing that all parties immed iately cease efforts to recruit and admit new students into the VIT P and relieve the State from any funding obligations wit h

re spect to such students. The State made the sam e argument in this motion as it made in Liddell v. Board of Educati on , 105 F.3d 1208 (8th Cir. 1997), that the VIT P violat es Jenkins III . On April 10, 1997, the distric t court d enied the State’s motion, stating that it did s o for theTheCounty Districts maintained that, while they took no position regardin g 6 when the VI TP might be phased out, a sufficient amount of “lead time” would b e necessary to prevent disruption to students, parents, a nd staff as well as to preserve the inter ests of sound budgetary and operational management. The United State s contended that the settlement process should be permi tted to run its course and that the State’s Jenkins IIImotion was not yet ripe. The Caldwell plaintiffs argued that th e State had already lost its ch allenge to the continuation of the VITP and questioned the State’s public posturing duri ng the settlement process. They maintained that the State had made no showing that the city schools, faculty, etc. were capable of absorbin g returning students if the VITP were terminated. The City Board argued that the State’s motion should be denied because it undermined the settlement process, failed on th e merits, and violated the mandate from Freeman v. Pitts , 503 U.S. 467 (1992) , that requires a transition phase for the orderly withdrawal of court supervision.

21 re asons set forth by the responses of certain count y districts, the United States, the Caldwell-NAAC P plaintiffs, and the City Board. The State now appeals. 6

The District Court Did Not Abuse Its Discretion in Denying the

State’s Motion to Phase Out the VITP

The State appeals from a district court order denyin g its mo tion for an order (1) directing that all partie s and all court advisory panels immediately cease al l efforts to recruit and admit new students into the VITP, and (2) re lieving the State from any funding obligations

as to s uch students. We ruled against the State on a similar qu estion only eight months ago and held that the dist rict court did not abuse its discretion in denyin g the State’ s request. Liddell , 105 F.3d at 1212. No new arguments are advanced that cause us to change ou r position at this time. Settlement negotiatio ns are still

on going. At oral argument, counsel for the Stat e
asser ted that settlement negotiations have reached a n22

impasse, but counsel for all the other partie s disagreed. As al l parties are bound by a district court order t o maintain confidentiality and as the settlemen t
co ordinator has not yet filed a report indicating a n impasse, weWe not e that as recently as September 10, 1997, the attorney general of th e 7 State of Missouri made public a new proposal to end the litigation. We assume th e settlement director and all parties to this litigation were notified of the proposal and that this proposal, as well as others, will be considered by the parties in settlemen t negotiations. This desegregation plan resulted from a settlement agreement encouraged by the 8 Honorable William L. Hungate, United State s District Judge for the Eastern District of Missouri. In encouraging the parties to settle, he stated:

So ciety’s greatest opportunities lie in encouraging human inclination s towa rdcompromise, rather than stirring our tendencies for competitio n and rival ry. If lawyers, educators, and public officials do not hel p mar shallcooperation and design mechanisms that promote peacefu l
r e solution of conflicts, we shall miss an opportunity to participate in the most creative social experiments of our time.

Liddell v. Board of Educ. , 567 F. Supp. 1037, 1041 (E.D. Mo. 1983) (ci tation omitted).

23 can only assume the settlement coordinator is makin g every effort to resolve the many complex issu es that must be addressed. 7

It is important to bear in mind that the curren t schoo l desegregation plan is based on a “unique an d comprehensive settlement agreement” approved by thi s court sitting en banc in 1984. Liddell , 731 F.2d a t 1297. We note that all parties other than the State hav e

8 indicated a willingness to continue essential elements of the plan, including the interdistrict transfer of blac k city students to the County Districts.

Settl ement is the preferred method of resolvin g prot racted school desegregation cases. As recently a s24

1990 in considering the proposed settlement o f the Little Rock School District desegregation case, we stated:Thegeneral principle that the law favors settlement agreements has bee n 9 recognizedfor over 100 years. See Williams v. First Nat’l Bank , 216 U.S. 582, 595 (19 10) (compromises of disputed claims are favored by the courts) (citing Henness y v. Bac on , 137 U.S. 78 (1890)). This principle is recognized in desegregation cases

. Armstrong v. Board of Sch. Dirs. , 61 6 F.2d 305, 313 (7th Cir. 1980)); Jones v. Caddo Parish Sch. Bd. , 704 F.2d 206, 22 1 (5th Cir. 1983). See also Daniel J. McMullen and Irene H irata McMullen, Stubborn Facts of History--The Vestiges of Pas t Disc rimination in School Desegregation Cases , 44 Case W. Res. L. Rev. 75 (1993)).

25 Th e law strongly favors settlements. Court s shoul d hospitably receive them. This may b e especiallytrue in the present context-- a pr otracted, highly divisive, even bitte r [desegregation] litigation, an y lasting solution to wh ich necessarily depends on the good fait h and cooperation of all the parties, especiall y the defendants. As a practica l matter, a remedy that everyone agrees to is a lot more likely to succeed than one to which the defendants must be dragged kicking and screaming.
Little Rock Sch. Dist. v. Pulaski County Special Sch

. Dist. No. 1 , 921 F.2d 1371, 1383 (8th Cir. 1990)

. Cons istent with this court’s preference, we recentl y approved a settlement agreement in the Kansas City School District desegregation case. Jenkins v. Misso uri , No. 97- 1968, slip op. at 35 (8th Cir. Aug. 12, 1997). 9

Given the long histo ry of state-mandated, segregated schools, the complexity of the issues, and th e difficulty of dev eloping a plan that will ensure that students o f all races will have a continuing equal opportunity for a quality, integrated education, the district c ourt did not abuse i ts discretion in denying the State’s motion t o phase out the voluntary transfer of black city student s to the Cou nty Districts pending settlement negotiations.26

There can be no doubt as to the complexity of th e issues that need to be resolved either by settlement o r court order. For example, over the course of severa l years, app roximately 12,000 black city students per year have volun tarily transferred from city schools to county sch ools. Ending or phasing out this program wil l inevitably lead to27

a significant increase in the black populatio n of the St. Louis School District and may well result in th e resegregat ion of the St. Louis schools through something othe r than a change in demographic factors. Moreover , the desegregation plan involves remedial prog rams, magnet schools, student assignments, teacher exchanges, an d other prog rams designed to give students of all races an equal opportunity for a quality, integrated education , each of which must be independently considered pursuan t to Gr een v. New Kent County School Board. , 391 U.S. 43 0 (1968), an d Freeman v. Pitts , 503 U.S. 467 (1992). From the beginning, the plan has relied on state and cit y funding

. All elements of the plan have been repeatedl y subject to district and circuit court review, many o f which became the subject of petitions for writs o f certiorari to the United States Supreme Court. See note 1, supr a . Under these circumstances, we do not believ e that the district court abused its discretionin refusing the State’s request to enjoin the parties andpanels from immediatel y ceasing all efforts to recruit and admit new stude nts into the VITP and relieve the State from an y fundi ng obligations as to such students pendin g settlement negotiations.

The Unitary Status Motion

In the event the district court determines that a n impasse inthe settlement negotiations has been reached, it mus t then decide the State’s pending motion to hav e the St. Louis School District declared unitary an d determine the consequences that flow from that decision. In reachin g these decisions, the district court shall be guid ed by the Supreme Court’s decisions in Freeman ,28

Do well v. Board of Education of Oklahoma City Publi c Schools , 498 U.S. 237 (1991), and Green

.

It i s clear from these decisions, particularl y Freemanan d Dowell , that the Supreme Court requires that

once a school district has achieved unitary status, a distri ct court should not deny that status to a schoo l district b ecause of demographic factors or changes since the des egregation plan was initiated. The Court mad e clear in DowellThe Court stated that: 10
In the present case, a finding by the District Court t hat the Oklahoma City School District was being operated in compliance with the commands of the Equal Protection Clause of the Fourteenth Amendment, and that it was unl ikelythat the Board would return to its former ways, would be a fi ndingthat the purposes of the desegregation litigation had been full y achieved. No additional showing of ‘grievous wrong evoked by new and unforeseen conditions’ is required of the Board.

Dowell , 498 U.S. at 247.

29 that on obtaining unitary status, the defendant schoo l district would not return to its former ways. 10

Herein lies the problem. The historical recor d

reve als that significant progress has been made i n providing equal opportunities through the programs tha t have been in effect for several years. As previousl y noted , if some or all of these programs are ended by a decl aration that the St. Louis School District ha s achi eved unitary status, then the immediate effect wil l most proba bly be a significant resegregation of the city scho ols. The inescapable result would be tha t approximately 12,000 black students would be reassigne d to the city schools, thereby increasing the degree o f segr egation in those schools. Unlike the situation i n Free man and Dowell , the resegregation would not resul t from chang ed demographic factors. Moreover, segregation may v ery well be increased in the city schools if th e magn et or remedial programs are either eliminated o r limited in scope and the students are reassigned on th e basis of n eighborhood schools rather than on the current basi s, which is designed to secure the maximu mIt may w ell be, as Freemanpoints out, that some elements of the program are 11 unitary and will remain so if that status is declared. The Supreme Court states that each element is to be treated independently. Freeman , 503 U.S. at 489.

30 desegregation practicable. We do not say and are no t 11 prepa red to say at this time how the mandate of th e Supreme Court, particularly in Dowell thatThese programs include a comprehensive school improvement program , 12 reading intervention programs, drug-free schools program, emphasis on early childhood edu cation, early childhood programs, AIDS awareness education, unwed mothers ’ education, gun-free schools, pro vision of medical services to Medicaid-eligible school children, and Missouri’s nationally-renowned “Parents as Teachers” program. See Mo. Rev. Stat. §§ 162.300; 167.268, .270, .294, .606; 191.668; 195.214; 571.030.

31 rese gregation should not result from a declaration o f unita rystatus, can be achieved; but the issue is on e that must be dealt with either in settlement negotiations or by district court order.

The St ate does not dispute the fact that ending th e voluntary interdistrict transfer of black city student s to t he County Districts and limiting its othe r responsibilities will probably result in som e resegre gation of the city schools. Nor does it disput e that b lack students in St. Louis were either denied a n education or limited to attending segregated schools for at least 140 years, resulting in savings to t he St. Louis Sch ool District and the State. See Adams v. Unite d Sta tes , 620 F.2d 1277 (8th Cir. 1980). Rather tha n address these issues, the State argues that it ha s expen ded large sums of money in the twenty years tha t this program has been in effect, it has done its share , and the ti me has come to end its responsibilities in the matter. I n support of ending its obligations, the State points to the fact that it has initiated a number o f programs that have particular benefit to disadvantage d city st udents and has publicly proposed to settle it s 12 obligations by making a lump sum payment to t he St. Louis School District. The d istrict court must take all of these factor s into consideration in determining whether to grant ful l32

or p artial unitary status and what the defendants ’ continuing obligations will be if such status is granted. We wi ll not prejudge that matter or issue an advisor y opini on. We merely repeat that the complexity of th e issue s involved support the view heretofore expresse d that th e best way to resolve these problems and provid e
a quality, integrated education to all city students i s through good-faith settlement negotiations.Ju stice O’Connor stated in Jenkins IIIin discussing the Kansas City Schoo l 13 District, “Neither the legal responsibility for nor the causal effects of . . . racia l segreg ationtransgressed its boundaries, and absent such interdistrict violation o r segre gativeeffects, Millikenand Gatreaux do not permit a regional remedial plan. ” Jenkins III , 115 S. Ct. at 2059 (O’Connor, J., concurring).

33 The Jenkins III Issue

The State’s principal argument is that the distric t court is without discretion in this matter and tha t Jenkins III requires that the VITP be phased out now. We do not agree that Jenkins III requires this result. A premise of Jenkins III was that the trial cour t specificallyfound that no interdistrict violation ha d taken place. N o such determination has been made here. 13 To t he contrary, from the beginning the plaintiff s asserted interdistrict violations. Rather than contes t thes e allegations, the County Districts entered into a settlement agreement under which they agreed to accept a sign ificant number of transfer students and in retur n were promi sed judgments relieving them from any possible constitutional violations. Under these circu mstances, it would b e wholly inappropriate for this court to make a n initial determination with respect to an interdistric t violation. Making such a determination would invade th e province of the district court and would be u nfair to the parties by denying them the opportunity, shou ld it become necessary, to litigate the interdistrict viol ation issue. To r equire the County Districts to litigate this issu e
no w, after voluntarily accepting thousands of cit y tran sfer students for twenty years, would violate thei r fundamental right to due process. The plaintiffs woul d34

be equally deprived if they were denied the opportunit y to prove interdistrict violations. Moreover, th e fund amental and undisputed fact remains that the Stat e has been found to be the primary constitution al violator, and t his court has consistently held in panel and in e n banc o pinions that the State could be required to fun d the VITP. See note 1, supra . Even if it wer e appropriat e for us to address that issue today, however, this court could not make a proper determination without a complete record. In order35

to apprehe nd fully the constitutional violations as they existed many years ago, we must employ something mor e rigorous than hindsight, guesswork, and speculation.

In Jenkins III , Chief Justice Rehnquist, speaking fo r the Court, stated that the Kansas City desegr egation plan

was grounded in “improving the desegregativ e att ractiveness of the” Kansas City, Missouri Schoo l Dis trict (KCMSD). Jenkins III , 115 S. Ct. at 2050

. He re, neither “desegregative attractiveness” no r “suburban comparability” were the basis of th e settlement agre ement or the district court’s or this court’ s approv al of the settlement plan. Rather, the plan wa s premi sed on the fact that both the State and the Count y Dist ricts opposed consolidation of the city and count y districts and a voluntary transfer plan could and woul d be an inte gral factor in desegregating the city schools. Everyo ne but the State agreed to this solution, and i t offered no alternative designed to secure the black city st udents an opportunity for an equal education. Th e premise ha s proven valid, and the St. Louis schools have achieved a high degree of integration. We also note that Ju stice O’Connor, who concurred in the plu rality opinion in Jenkins III , stated that th e dist rict court found “that the segregative effects o f KCMSD’s constitutional violation did not transcend it s geographic al boundaries.” Jenkins III , id. at 2060. As previously

noted, there has been no such finding in this

case. Indeed, the parties are still at odds as t o whether interdistrict violations occurred; and rathe r than have this argument resolved after length y liti gation, the plaintiffs, the City Board, the Count y Di stricts, and the United States agreed to the VITP

.36

Justice O’Connor also noted the limited nature of th e Jenk ins III decision and remand, stating that “[t]h e Court today discusses desegregative attractiveness onl y inso far as it supports the salary increase order unde r review, . . . and properly refrains from addressing th eThe district court determined that t he KCMSD had attained unitariness in only 14 one of the five aspects enumerated in Green , 391 U.S. at 435. Jenk ins v. Missouri , No. 77-0420-CV-W-RGC, slip op. at 28-37, 59 (W.D. Mo. Mar. 25, 1997). We affirmed the district court’s order. Jenkins v. Missouri , No. 97-1968, slip op. (8th Cir. Aug. 12, 1997).

37 propriety of all the remedies that the Distri ct Court has ordered, r evised, and extended in the 18-year history of this case.” Id. at 2061. 14

There is, of course, language in the majority opinio n in J enkins III suggesting that no interdistrict relie f

can be granted unless an interdistrict violation o r segregative effects have been proved. This l anguage must be tempered by the facts in Jenkins III and limite d nature of the actual holding. In our view, the question

re mains sufficiently open to permit us to follow ou r
nume rous precedents and hold that Jenkins III does no t require us to hold that the VITP must be terminated o r phased out at this time.

Conclusion

We affirm the order of the district court denying th e State’ s motion to end all efforts to recruit and admi t
new stu dents into the VITP for the 1997-98 school year

. The district court did not abuse its discretion i n denying the State’s motion to phase out the voluntar y transfer of black city students to the County District s pending settlement negotiations. Its decision to do s o
was n ot contrary to the Supreme Court’s decision i n Jenkins III . We renew our encouragement to the partie s to make every effort to resolve this matter so tha t38

students of all races will have a continuing equa l opportunit y for a quality, integrated education. In the unfortunate event that the negotiations reachan impasse, the district court should promptly rule on the pendin g unitary status motion.39

A true copy.

Attest.

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

.