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 United

States

friend; Samuel Yarber; Earline Caldwell; * District Court for the

Lillie Caldwell; Gwendolyn Daniels; * Eastern District of

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

 Filed: September 25, 1997

 

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

 

HEANEY, Circuit Judge.

The State of Missouri (State) appeals from an April

10, 1997 order of the United States District Court for

the Eastern District of Missouri denying the State’s

motion to end all efforts to recruit and admit new

students into the voluntary interdistrict transfer plan

(VITP) for the 1997-98 school year. The State contends

that the district court acted contrary to the United

States Supreme Court’s decision in Missouri v. Jenkins,

115 S. Ct. 2038 (1995) (Jenkins III) in denying its

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 April 23, 1996, the district court appointed Dr.

William H. Danforth as settlement coordinator with the

responsibility and authority to conduct conferences with

all persons involved in the case, to secure the services

of experts, and to stimulate negotiations among the

parties. Dr. Danforth continues in this capacity as of

the date of this opinion. Moreover, the district court

has under consideration a motion by the State to have the

St. Louis School District declared unitary. Given the

long history of state-mandated, segregated schools, the

complexity of the issues, and the difficulty of

developing a plan that will ensure that students of all

races will have a continuing equal opportunity for a

quality, integrated education, the district court did not

abuse its discretion in denying the State’s motion to

phase out the voluntary transfer of black city students

to county districts pending settlement negotiations. We

encourage the parties to proceed diligently with their

negotiations and believe that the settlement coordinator

should be permitted to complete this important

assignment. We urge the district court to ascertain the

status of the negotiations, and in the event the

negotiations reach an impasse, the district court should

promptly rule on the pending unitary status motion. We

affirm the order of the district court.

Background

The early history of this litigation is chronicled in

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, 454 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 the

Board of Education of the City of St. Louis (City Board)

alleging that the city schools were segregated by race as

a matter of state law and practice. Thereafter, the

State of 
Only one 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. The plaintiffs

and the United States as amicus submitted desegregation

plans to the district court. The district court held a

trial and found no constitutional violation. We

reversed, holding that prior to 1865 the State prohibited

the creation or maintenance of schools for teaching black

children to read or write and that, after that date until

1980, the City Board and the State were jointly

responsible for maintaining a segregated school system.

Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.)

(en banc), cert. denied, 449 U.S. 826 (1980). We further

2

noted that the City Board and the State failed to take

effective measures to desegregate the school system in

the years immediately following Brown v. Board of

Education, 347 U.S. 483 (1954). We remanded the matter

to the district court with directions to develop and

implement a plan to integrate the St. Louis public

schools.

On remand, the district court ordered the

implementation of a mandatory desegregation plan within

the city schools with funding to be shared equally by the

City Board and the State. The district court directed

the City Board and the State to develop and submit plans

to alleviate the segregated conditions within the city

schools through interdistrict transfers between the city

and the suburban school districts. Liddell v. Board of

Educ., 491 F. Supp. 351 (E.D. Mo. 1980). The Liddell and

Caldwell plaintiffs (representing black parents and

students) and the Adams plaintiffs (representing white
The 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 that

3

it should not be required to pay any of the costs of

integration and specifically challenged paragraph 12 of

the district court’s order which provided:
9

12. The State defendants, the United

States, and the St. Louis Board of Education are

ordered and directed as follows:

 a) To make every feasible effort to

work out with the appropriate school

districts in the St. Louis County and

develop, for 1980-81 implementation, a

voluntary, cooperative plan of pupil

exchanges which will assist in alleviating

the school segregation in the City of St.

Louis, and which also insures that interdistrict pupil transfers will not impair the

desegregation of the St. Louis school

district ordered herein, and submit such

plan to the Court for approval by July 1,

1980.

Id. at 353. We affirmed, noting that “the voluntary

exchanges contemplated by section [12](a) must be viewed

as a valid part of the attempt to fashion a workable

remedy within the City.” Liddell v. Board of Educ., 667

F.2d 643, 651 (8th Cir.), cert. denied, 454 U.S. 1081

(1981).

On August 24, 1981, the district court added eighteen

St. Louis County suburban school districts (County

Districts) as parties defendant and entered various other

orders relating to desegregation of the city schools.

The County Districts, the State, and the City Board

appealed. The State contended that it could not be

required to implement a remedy affecting County Districts

until a hearing had been held. The Adams plaintiffs

contended the district court could order the State to

consolidate city and county schools if necessary to

effectuate desegregation of the city schools and that
10

these actions could be taken without additional hearings

or liability findings. The City Board argued that the

district court orders were not reviewable. We held that

the court order adding additional parties was not

appealable. We stated:

The district court has yet to issue an order

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 what

the district court may have in mind and to

instruct it as to what it can or cannot do. The

most that can be said 
The settlement agreement further provided “that after a school district receives 4

an order granting it final judgment, it has a continuing obligation to: ‘cooperate in the

recruitment and promotion of transfers . . . .’” Liddell v. Board of Educ., 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 more of its orders that it may take actions

which impact significantly on St. Louis County

school districts. 

Liddell v. Board of Educ., 677 F.2d 626, 641 (8th Cir.),

cert. denied, 459 U.S. 877 (1982). We remanded to the

district court for action consistent with our opinion.

On August 6, 1982, the district court entered an

order in which it disclosed that if it held a hearing and

found that the County Districts had committed

constitutional violations that contributed to the

segregation of the St. Louis School District, it would

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 Liddell plaintiffs, the Caldwell plaintiffs, and all

eighteen County Districts entered into a settlement

agreement that settled the plaintiffs’ interdistrict

claims against the eighteen County Districts. The

agreement provided for voluntary interdistrict transfers

between city and county schools and included fiscal

incentives to be funded by the State to encourage the

transfers. Each district receiving sufficient transfers

within five years to satisfy its desegregation

obligations would receive a final judgment. The State, 4

having been found to be the primary constitutional

violator, was ordered to fund the transfer of city
In 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 constant up to the present. The County

Districts state in their current briefs that they are willing to continue to accept the

voluntary transfers under the terms of the settlement agreement. Most, if not all, of the

County Districts have achieved the plan ratios or goals established under the settlement

agreement. 

12

students to the County Districts. We affirmed the

district court in an en banc opinion and set forth our

reasons in great detail. Liddell v. Missouri (Liddell

VII), 731 F.2d 1294, 1301-09 (8th Cir.) (en banc), cert.

denied, 496 U.S. 816 (1984).5
13

In Liddell v. Board of Education, 873 F.2d 191, 192

(8th Cir. 1989), the State appealed from a district

court order “clarifying the extent of Missouri’s funding

obligations for interdistrict student transfers in the .

. . desegregation case.” It took the position that when

a County District had achieved its designated plan ratio,

the State was no longer required to pay for transfers.

The State sought further clarification of its funding

obligation. We stated:

Missouri’s obligation is to fund interdistrict

transfers necessary to reach 15,000 students--no

more, no less. . . . The parties agree the

total number of students currently attending

county schools under the interdistrict transfer

program is less than 15,000. Thus, Missouri’s

obligation to fund interdistrict transfers has

not yet been fulfilled. Insofar as the district

court’s order restoring state funding complies

with this portion of our opinion, we affirm.

Furthermore, the parties shall take whatever

steps are necessary to ensure that 15,000 city

students are enrolled in the county schools. In

light of the parties’ progress to date, this

goal is attainable, and it must be achieved at

the earliest opportunity.

Id. at 194. No petition for a writ of certiorari was

filed. We were asked to clarify our opinion a few months

later. We again stated:

1. Missouri is obligated to fund voluntary

transfer 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 the

voluntary transfer of students will continue
14

until such time as the state is 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 was

filed.
15

In October 1991, the State filed the first of three

motions to declare the St. Louis School District unitary,

terminate desegregation funding, and release all

defendants from court supervision. The United States,

the City Board, and the plaintiffs responded that

consideration of unitary status was premature. The State

did not reply to the responses. Instead, it filed a new

motion on May 7, 1992, requesting partial unitary status.

The district court held that while the State’s request

was premature, the State was entitled to answers to

certain discovery requests because a future declaration

of unitary status might be warranted. The State did not

appeal this ruling to this court.

In November 1993, the State filed an amended motion

for unitary 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 State

asked the district court for a hearing date on its motion

for unitary status. On February 28, 1995, the district

court scheduled a hearing for September 1995. This

hearing was later rescheduled for March 1996. 

On January 4, 1996, while the unitary status motion

was still pending, the State filed a motion to terminate

the VITP on the basis of Jenkins III. It described its

motion as conditional and not ripe for court action

because it desired a ruling on its motion only if the

court failed to enter a finding of unitary status

following the hearing scheduled for March 1996. The City

Board and the plaintiffs requested that the hearing on

unitary status be postponed while the State’s Jenkins III

motion was adjudicated. The plaintiffs, joined by the
16

United States, alternatively requested that the court

appoint a settlement coordinator to resolve the

litigation without the need for trial. The State again

requested that the Jenkins III issue be addressed only

after a hearing on its unitary status motion and then

only if the unitary status motion was not granted in

full.

On February 15, 1996, the court denied the State’s

Jenkins III motion as not ripe. It also denied the

request to postpone the hearing on unitary status and

decided that the 
17

appointment of a settlement coordinator would be more

beneficial after a hearing on the State’s unitary status

motion had been held. The court stated that:

[It] agreed with plaintiffs that the best

resolution of this case would be an agreed-upon

plan for ending Court supervision of the St.

Louis Public Schools. The Court however is

reluctant to continue the hearing. It may well

be that the possibility for settlement will be

greater following the hearing, at which time the

appointment of a Settlement Coordinator would be

appropriate and beneficial.

G(1939)96 at 2. The State did not appeal the order

denying its Jenkins III motion.

In March 1996, following extensive discovery, the

district court conducted a three-week unitary status

hearing. Following the hearing, it appointed Dr. William

H. Danforth, former Chancellor of Washington University

of St. Louis, as the settlement coordinator. It gave the

coordinator broad powers designed to stimulate

negotiations and directed the parties and their counsel

to attend all meetings scheduled by the settlement

coordinator and to participate in good faith in the

negotiations. It ordered “that all components of the

settlement agreement now in force shall continue as they

are currently operating.” G(2062)96. 

On June 26, 1996, the district court, responding to

a motion by the State, held that settlement negotiations

would be kept confidential, that the settlement

coordinator should not recommend to the court how the

case should be resolved, and refused to set a time limit
18

for the parties to continue negotiations, indicating it

was confident that the settlement coordinator would

proceed with all diligence. G(2134)96.

On July 24, 1996, the State appealed district court

orders G(2062)96 and G(2134)96, and sought a stay of the

interdistrict component of the desegregation remedy

pending appeal of the order appointing the settlement

coordinator. It sought alternative remedies limiting its

obligations under the desegregation plan. The district
19

court denied 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. The State again appealed the denial of the stay

motion. This court consolidated and then dismissed all

pending appeals. We noted that G(2062)96 and G(2134)96

were interlocutory and related to settlement procedures

and case management and could not be characterized as

appeals from orders denying an injunction. We stated

that “[a] district court, particularly in school

desegregation cases, has broad discretion to control its

docket and has the necessary flexibility to shape

remedies that adjust public and private needs.” Liddell

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

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

The State argues that the district court erred

because it effectively denied its motion for

unitary status. We disagree. The district

court has yet to rule on the State’s unitary

status motion. The district court in this case

has not refused to rule on the State’s motion

that the St. Louis School District be declared

unitary. It has simply postponed post-hearing

briefing and deferred final ruling on this

matter. We cannot review a matter that has not

been ruled on by the district court. We lack

jurisdiction over the State’s claim that the

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

On March 14, 1997, the State moved the district court

for an order directing that all parties immediately cease

efforts to recruit and admit new students into the VITP

and relieve the State from any funding obligations with

respect to such students. The State made the same

argument in this motion as it made in Liddell v. Board of

Education, 105 F.3d 1208 (8th Cir. 1997), that the VITP

violates Jenkins III. On April 10, 1997, the district

court denied the State’s motion, stating that it did so

for the 
The County Districts maintained that, while they took no position regarding

6

when the VITP might be phased out, a sufficient amount of “lead time” would be

necessary to prevent disruption to students, parents, and staff as well as to preserve the

interests of sound budgetary and operational management. The United States

contended that the settlement process should be permitted to run its course and that the

State’s Jenkins III motion was not yet ripe. The Caldwell plaintiffs argued that the

State had already lost its challenge to the continuation of the VITP and questioned the

State’s public posturing during the settlement process. They maintained that the State

had made no showing that the city schools, faculty, etc. were capable of absorbing

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 the

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

reasons set forth by the responses of certain county

districts, the United States, the Caldwell-NAACP

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 denying

its motion for an order (1) directing that all parties

and all court advisory panels immediately cease all

efforts to recruit and admit new students into the VITP,

and (2) relieving the State from any funding obligations

as to such students. We ruled against the State on a

similar question only eight months ago and held that the

district court did not abuse its discretion in denying

the State’s request. Liddell, 105 F.3d at 1212. No new

arguments are advanced that cause us to change our

position at this time. Settlement negotiations are still

ongoing. At oral argument, counsel for the State

asserted that settlement negotiations have reached an
22

impasse, but counsel for all the other parties disagreed.

As all parties are bound by a district court order to

maintain confidentiality and as the settlement

coordinator has not yet filed a report indicating an

impasse, we 
We note that as recently as September 10, 1997, the attorney general of the

7

State of Missouri made public a new proposal to end the litigation. We assume the

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 settlement

negotiations.

This desegregation plan resulted from a settlement agreement encouraged by the 8

Honorable William L. Hungate, United States District Judge for the Eastern District of

Missouri. In encouraging the parties to settle, he stated:

Society’s greatest opportunities lie in encouraging human inclinations

toward compromise, rather than stirring our tendencies for competition

and rivalry. If lawyers, educators, and public officials do not help

marshall cooperation and design mechanisms that promote peaceful

resolution 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) (citation omitted).

23

can only assume the settlement coordinator is making

every effort to resolve the many complex issues that must

be addressed. 

7

It is important to bear in mind that the current

school desegregation plan is based on a “unique and

comprehensive settlement agreement” approved by this

court sitting en banc in 1984. Liddell, 731 F.2d at

1297. We note that all parties other than the State have

8

indicated a willingness to continue essential elements of

the plan, including the interdistrict transfer of black

city students to the County Districts. 

Settlement is the preferred method of resolving

protracted school desegregation cases. As recently as
24

1990 in considering the proposed settlement of the Little

Rock School District desegregation case, we stated:
The general principle that the law favors settlement agreements has been

9

recognized for over 100 years. See Williams v. First Nat’l Bank, 216 U.S. 582, 595

(1910) (compromises of disputed claims are favored by the courts) (citing Hennessy

v. Bacon, 137 U.S. 78 (1890)). This principle is recognized in desegregation cases.

Armstrong v. Board of Sch. Dirs., 616 F.2d 305, 313 (7th Cir. 1980)); Jones v. Caddo

Parish Sch. Bd., 704 F.2d 206, 221 (5th Cir. 1983). See also Daniel J. McMullen and

Irene Hirata McMullen, Stubborn Facts of History--The Vestiges of Past

Discrimination in School Desegregation Cases, 44 Case W. Res. L. Rev. 75 (1993)).

25

The law strongly favors settlements. Courts

should hospitably receive them. This may be

especially true in the present context--a

protracted, highly divisive, even bitter

[desegregation] litigation, any lasting solution

to which necessarily depends on the good faith

and cooperation of all the parties, especially

the defendants. As a practical 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).

Consistent with this court’s preference, we recently

approved a settlement agreement in the Kansas City School

District desegregation case. Jenkins v. Missouri, No. 97-

1968, slip op. at 35 (8th Cir. Aug. 12, 1997).9

Given the long history of state-mandated, segregated

schools, the complexity of the issues, and the difficulty

of developing a plan that will ensure that students of

all races will have a continuing equal opportunity for a

quality, integrated education, the district court did not

abuse its discretion in denying the State’s motion to

phase out the voluntary transfer of black city students

to the County Districts pending settlement negotiations.
26

There can be no doubt as to the complexity of the

issues that need to be resolved either by settlement or

court order. For example, over the course of several

years, approximately 12,000 black city students per year

have voluntarily transferred from city schools to county

schools. Ending or phasing out this program will

inevitably lead to 
27

a significant increase in the black population of the St.

Louis School District and may well result in the

resegregation of the St. Louis schools through something

other than a change in demographic factors. Moreover,

the desegregation plan involves remedial programs, magnet

schools, student assignments, teacher exchanges, and

other programs designed to give students of all races an

equal opportunity for a quality, integrated education,

each of which must be independently considered pursuant

to Green v. New Kent County School Board., 391 U.S. 430

(1968), and Freeman v. Pitts, 503 U.S. 467 (1992). From

the beginning, the plan has relied on state and city

funding. All elements of the plan have been repeatedly

subject to district and circuit court review, many of

which became the subject of petitions for writs of

certiorari to the United States Supreme Court. See note

1, supra. Under these circumstances, we do not believe

that the district court abused its discretion in refusing

the State’s request to enjoin the parties and panels from

immediately ceasing all efforts to recruit and admit new

students into the VITP and relieve the State from any

funding obligations as to such students pending

settlement negotiations.

The Unitary Status Motion

In the event the district court determines that an

impasse in the settlement negotiations has been reached,

it must then decide the State’s pending motion to have

the St. Louis School District declared unitary and

determine the consequences that flow from that decision.

In reaching these decisions, the district court shall be

guided by the Supreme Court’s decisions in Freeman,
28

Dowell v. Board of Education of Oklahoma City Public

Schools, 498 U.S. 237 (1991), and Green.

It is clear from these decisions, particularly

Freeman and Dowell, that the Supreme Court requires that

once a school district has achieved unitary status, a

district court should not deny that status to a school

district because of demographic factors or changes since

the desegregation plan was initiated. The Court made

clear in Dowell
The Court stated that: 10

In the present case, a finding by the District Court that 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

unlikely that the Board would return to its former ways, would be a

finding that the purposes of the desegregation litigation had been fully

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 school

district would not return to its former ways.10

Herein lies the problem. The historical record

reveals that significant progress has been made in

providing equal opportunities through the programs that

have been in effect for several years. As previously

noted, if some or all of these programs are ended by a

declaration that the St. Louis School District has

achieved unitary status, then the immediate effect will

most probably be a significant resegregation of the city

schools. The inescapable result would be that

approximately 12,000 black students would be reassigned

to the city schools, thereby increasing the degree of

segregation in those schools. Unlike the situation in

Freeman and Dowell, the resegregation would not result

from changed demographic factors. Moreover, segregation

may very well be increased in the city schools if the

magnet or remedial programs are either eliminated or

limited in scope and the students are reassigned on the

basis of neighborhood schools rather than on the current

basis, which is designed to secure the maximum
It may well be, as Freeman points 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 not

11

prepared to say at this time how the mandate of the

Supreme Court, particularly in Dowell that 
These programs include a comprehensive school improvement program,

12

reading intervention programs, drug-free schools program, emphasis on early childhood

education, early childhood programs, AIDS awareness education, unwed mothers’

education, gun-free schools, provision 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

resegregation should not result from a declaration of

unitary status, can be achieved; but the issue is one

that must be dealt with either in settlement negotiations

or by district court order.

The State does not dispute the fact that ending the

voluntary interdistrict transfer of black city students

to the County Districts and limiting its other

responsibilities will probably result in some

resegregation of the city schools. Nor does it dispute

that black students in St. Louis were either denied an

education or limited to attending segregated schools for

at least 140 years, resulting in savings to the St. Louis

School District and the State. See Adams v. United

States, 620 F.2d 1277 (8th Cir. 1980). Rather than

address these issues, the State argues that it has

expended large sums of money in the twenty years that

this program has been in effect, it has done its share,

and the time has come to end its responsibilities in the

matter. In support of ending its obligations, the State

points to the fact that it has initiated a number of

programs that have particular benefit to disadvantaged

city students and has publicly proposed to settle its

12

obligations by making a lump sum payment to the St. Louis

School District.

The district court must take all of these factors

into consideration in determining whether to grant full
32

or partial unitary status and what the defendants’

continuing obligations will be if such status is granted.

We will not prejudge that matter or issue an advisory

opinion. We merely repeat that the complexity of the

issues involved support the view heretofore expressed

that the best way to resolve these problems and provide

a quality, integrated education to all city students is

through good-faith settlement negotiations.
Justice O’Connor stated in Jenkins III in discussing the Kansas City School

13

District, “Neither the legal responsibility for nor the causal effects of . . . racial

segregation transgressed its boundaries, and absent such interdistrict violation or

segregative effects, Milliken and 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 district

court is without discretion in this matter and that

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 court

specifically found that no interdistrict violation had

taken place. No such determination has been made here.13

To the contrary, from the beginning the plaintiffs

asserted interdistrict violations. Rather than contest

these allegations, the County Districts entered into a

settlement agreement under which they agreed to accept a

significant number of transfer students and in return

were promised judgments relieving them from any possible

constitutional violations. Under these circumstances, it

would be wholly inappropriate for this court to make an

initial determination with respect to an interdistrict

violation.

Making such a determination would invade the

province of the district court and would be unfair to the

parties by denying them the opportunity, should it become

necessary, to litigate the interdistrict violation issue.

To require the County Districts to litigate this issue

now, after voluntarily accepting thousands of city

transfer students for twenty years, would violate their

fundamental right to due process. The plaintiffs would
34

be equally deprived if they were denied the opportunity

to prove interdistrict violations. Moreover, the

fundamental and undisputed fact remains that the State

has been found to be the primary constitutional violator,

and this court has consistently held in panel and in en

banc opinions that the State could be required to fund

the VITP. See note 1, supra. Even if it were

appropriate for us to address that issue today, however,

this court could not make a proper determination without

a complete record. In order 
35

to apprehend fully the constitutional violations as they

existed many years ago, we must employ something more

rigorous than hindsight, guesswork, and speculation. 

In Jenkins III, Chief Justice Rehnquist, speaking for

the Court, stated that the Kansas City desegregation plan

was grounded in “improving the desegregative

attractiveness of the” Kansas City, Missouri School

District (KCMSD). Jenkins III, 115 S. Ct. at 2050.

Here, neither “desegregative attractiveness” nor

“suburban comparability” were the basis of the settlement

agreement or the district court’s or this court’s

approval of the settlement plan. Rather, the plan was

premised on the fact that both the State and the County

Districts opposed consolidation of the city and county

districts and a voluntary transfer plan could and would

be an integral factor in desegregating the city schools.

Everyone but the State agreed to this solution, and it

offered no alternative designed to secure the black city

students an opportunity for an equal education. The

premise has proven valid, and the St. Louis schools have

achieved a high degree of integration. 

We also note that Justice O’Connor, who concurred in

the plurality opinion in Jenkins III, stated that the

district court found “that the segregative effects of

KCMSD’s constitutional violation did not transcend its

geographical 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 to

whether interdistrict violations occurred; and rather

than have this argument resolved after lengthy

litigation, the plaintiffs, the City Board, the County

Districts, and the United States agreed to the VITP.
36

Justice O’Connor also noted the limited nature of the

Jenkins III decision and remand, stating that “[t]he

Court today discusses desegregative attractiveness only

insofar as it supports the salary increase order under

review, . . . and properly refrains from addressing the
The district court determined that the KCMSD had attained unitariness in only 14

one of the five aspects enumerated in Green, 391 U.S. at 435. Jenkins 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 District Court has

ordered, revised, and extended in the 18-year history of

this case.” Id. at 2061.14

There is, of course, language in the majority opinion

in Jenkins III suggesting that no interdistrict relief

can be granted unless an interdistrict violation or

segregative effects have been proved. This language must

be tempered by the facts in Jenkins III and limited

nature of the actual holding. In our view, the question

remains sufficiently open to permit us to follow our

numerous precedents and hold that Jenkins III does not

require us to hold that the VITP must be terminated or

phased out at this time.

Conclusion

We affirm the order of the district court denying the

State’s motion to end all efforts to recruit and admit

new students into the VITP for the 1997-98 school year.

The district court did not abuse its discretion in

denying the State’s motion to phase out the voluntary

transfer of black city students to the County Districts

pending settlement negotiations. Its decision to do so

was not contrary to the Supreme Court’s decision in

Jenkins III. We renew our encouragement to the parties

to make every effort to resolve this matter so that
38

students of all races will have a continuing equal

opportunity for a quality, integrated education. In the

unfortunate event that the negotiations reach an impasse,

the district court should promptly rule on the pending

unitary status motion.
39

A true copy.

Attest.

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