` 

 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 

_____________

 No. 97-1968

_____________

 

Chinyere Jenkins, by her next friend, *

Joi Jenkins; Nicholas Paul Winchester- *

Rabelier, by his next friend, Paula *

Winchester; Margo Vaughn-Bey, by her *

next friend, Franklin Vaughn-Bey; *

Nicholas C. Light, by his next friend, *

Marian Light; Stephon D. Jackson, by *

his next friend, B. J. Jones; Travis N. *

Peter, by his next friend, Debora Chadd- *

Appeals from the United States

Peter; Leland Guess, by his next friend, *

District Court for the

Sharon Guess, * Western District of Missouri.

*

Plaintiffs - Appellants *

*

American Federation of Teachers, Local *

691, *

*

Intervenor below - Appellee *

*

v. *

*

State of Missouri; Mel Carnahan, *

Governor of the State of Missouri; Bob *

Holden, Treasurer of the State of *

Missouri; Missouri State Board of *

Education; Peter Herschend, Member of *

the Missouri State Board of Education; *
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Thomas R. Davis, Member of the *

Missouri State Board of Education; *

Robert E. Bartman, Commissioner of *

Education of the State of Missouri; Gary *

D. Cunningham, Member of the *

Missouri State Board of Education; Rice *

Pete Burns, Member of the Missouri *

State Board of Education; Sharon M. *

Williams, Member of the Missouri State *

Board of Education; Betty Preston, *

Member of the Missouri State Board of *

Education; Jacquelline Wellington, *

Member of the Missouri State Board of *

Education; Russell Thompson, *

Member of the Missouri State Board of *

Education; School District of Kansas *

City; Dr. Henry D. Williams, *

Superintendent thereof; Terry M. Riley, *

Member of the Board of Directors; *

Lance Loewenstein, Member of the *

Board of Directors; Marilyn Simmons, *

Member of the Board of Directors; *

Sandy Aguire Mayer, Member of the *

Board of Directors; John A. Rios, *

Member of the Board of Directors; *

Darwin Curls, Member of the Board of *

Directors; Patricia Kurtz, Member of the *

Board of Directors; Edward J. *

Newsome, Member of the Board of *

Directors; Dr. Julia H. Hill, Member of *

the Board of Directors; John W. Still, *

Member of the Board of Directors, *

*

Defendants - Appellees *
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_____________

 No. 97-2078

_____________

Chinyere Jenkins, by her next friend, *

Joi Jenkins; Nicholas Paul Winchester- *

Rabelier, by his next friend, Paula *

Winchester; Margo Vaughn-Bey, by her *

next friend, Franklin Vaughn-Bey; *

Nicholas C. Light, by his next friend, *

Marian Light; Stephon D. Jackson, by *

his next friend, B. J. Jones; Travis N. *

Peter, by his next friend, Debora Chadd- *

Peter; Leland Guess, by his next friend, *

Sharon Guess; *

*

Plaintiffs - Appellees *

*

American Federation of Teachers, Local *

691, *

*

Intervenor below - Appellee *

*

v. *

*

State of Missouri; Mel Carnahan, *

Governor of the State of Missouri; Bob *

Holden, Treasurer of the State of *

Missouri; Missouri State Board of *

Education; Peter Herschend, Member of *

the Missouri State Board of Education; *

Thomas R. Davis, Member of the *

Missouri State Board of Education; *

Robert E. Bartman, Commissioner of *

Education of the State of Missouri; Gary *

D. Cunningham, Member of the *
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Missouri State Board of Education; Rice *

Pete Burns, Member of the Missouri *

State Board of Education; Sharon M. *

Williams, Member of the Missouri State *

Board of Education; Betty Preston, *

Member of the Missouri State Board of *

Education; Jacquelline Wellington, *

Member of the Missouri State Board of *

Education; Russell Thompson, Member *

of the Missouri State Board of *

Education; *

*

Defendants - Appellants *

*

School District of Kansas City; Dr. *

Henry D. Williams, Superintendent *

thereof; Terry M. Riley, Member of the *

Board of Directors; Lance Loewenstein, *

Member of the Board of Directors; *

Marilyn Simmons, Member of the Board *

of Directors; Sandy Aguire Mayer, *

Member of the Board of Directors; John *

A. Rios, Member of the Board of *

Directors; Darwin Curls, Member of the *

Board of Directors; Patricia Kurtz, *

Member of the Board of Directors; *

Edward J. Newsome, Member of the *

Board of Directors; Dr. Julia H. Hill, *

Member of the Board of Directors; John *

W. Still, Member of the Board of *

Directors, *

*

Defendants - Appellees. *
The Honorable Russell G. Clark, Senior Judge, United States District Court for 1

the Western District of Missouri.

The Jenkins Class moved for a stay of the court's order. We took the motion 2

for stay with the case until we had heard oral argument. Because we have now decided

the case, the motion for stay is moot.

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_____________

Submitted: May 27, 1997

Filed: August 12, 1997

_____________

Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.

_____________

JOHN R. GIBSON, Circuit Judge.

After the Supreme Court's decision in Missouri v. Jenkins, 515 U.S.

70 (1995) (Jenkins III), the State of Missouri filed a motion in this

lengthy school desegregation case asking the court to declare the Kansas

City, Missouri School District unitary, to dissolve all injunctions, and

to relinquish jurisdiction of the case. Less than a month later, the State

and the KCMSD entered into an agreement under which the State would pay the

KCMSD a total of $320 million over three years and be released from any

further obligation in this desegregation litigation. The court held a

hearing from January 13 through January 31, 1997, receiving testimony from

a large number of witnesses and a considerable volume of documentary

evidence. On March 25, 1997, the district court entered its order denying 1

the motion for unitary status in all respects except extra-curricular

activities, but approving the agreement between the State and the KCMSD.

Jenkins v. Missouri, 959 F. Supp. 1151 (W.D. Mo. 1997). The Jenkins Class

appealed the ruling approving the agreement. The State appealed the

2

district court's order denying a declaration of unitary status. We affirm

the district court's order.
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In discussing the State's motion for unitary status, the district

court first outlined its earlier orders finding that there had been a

system-wide reduction in student achievement in the schools of the KCMSD.

959 F. Supp. at 1153. It looked to its earlier orders identifying the

purpose of the public schools as furnishing quality education to their

students and identifying educational achievement as a proper goal in a

desegregation remedy. Id. (citing Jenkins v. Missouri, 593 F. Supp. 1485,

1506 (W.D. Mo. 1984); Jenkins v. Missouri, 639 F. Supp. 19, 24 (W.D. Mo.

1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484

U.S. 816 (1987)). The court then briefly reviewed the progress made in the

KCMSD. 959 F. Supp. at 1156.

 

The court determined that the burden of proof was on the State, the

adjudged constitutional violator, to show that no vestiges of prior

discrimination remained in the KCMSD. Id. at 1156-57. It pointed out that

once a court has found an unlawful dual school system, the plaintiffs are

entitled to a presumption that existing disparities are causally related

to prior segregation, and the burden of proving otherwise rests on

defendants. Id. at 1157 (citing Dayton Bd. of Educ. v. Brinkman, 443 U.S.

526, 537 (1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 211 n.17

(1973)). One of the vestiges the court found was an achievement gap

between black and white students in the KCMSD. The State argued that the

Jenkins Class should bear the burden of proving that this student

achievement disparity was caused by the State's constitutional violation.

The court rejected the State's arguments, concluding that the achievement

gap issue should be governed by the same burden-shifting rules as the other

factors, and that the State must prove it did not cause the disparity. Id.

The court analyzed in detail the testimony on this issue, including

expert opinions. The court found that a portion of the achievement gap was

attributable to de jure segregation and that unitary status had not been

attained in this respect. The court ordered the KCMSD to eliminate that

portion of the achievement gap within three years. Id. at 1165. 
In Green v. County School Board, 391 U.S. 430, 435 (1968), the Supreme

3

Court stated that school districts were obliged to desegregate all aspects of their school

systems, including: student assignments, faculty and staff assignments, transportation,

facilities, and extra-curricular activities. Disparities in these five aspects of a school's

operations are the most important indicia of a segregated school system. See Jenkins

III, 515 U.S. at 88.

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The court then turned to an analysis of the Green factors. With

3

respect to student assignments or the racial isolation vestige, the court

recognized testimony that the KCMSD had realized a high degree of racial

balance, but pointed out that the schools lost significant enrollment of

white suburban students in the 1995-96 school year following the Jenkins

III decision. Id. at 1166. Moreover, the racial imbalance index showed

an increase in 1996 for both elementary and secondary schools. Id. The

court looked at testimony that the KCMSD must develop and implement a

student assignment system focusing exclusively on the pupils residing in

the district, and that this could be accomplished within a two- to threeyear period. Id. The district court concluded that the KCMSD had not yet

achieved unitary status with regard to the racial isolation vestige, but

that within a three-year period it would be possible to assess the effects

of Jenkins III on minority enrollment. Id. at 1167. 

With respect to faculty and staff assignments, the district court

recounted the testimony that the district had maintained a substantial

degree of racial balance in faculty assignments. Id. at 1166. However,

the court also recognized testimony that, during recent years, while the

secondary schools fell within the desired variance level, the elementary

schools had shown a steady decline in compliance. Id. at 1166. The court

held that the steady decline at the elementary school level of a balanced

faculty warranted further investigation, and so "the court [found] that the

KCMSD has not yet achieved unitary status as to faculty assignments." Id.

at 1168. However, the court also stated that the KCMSD should be able to

remedy this defect in a period of three years. Id.
-8-

With respect to the facilities of the KCMSD, the court observed that

the capital improvements already ordered were almost, but not entirely,

completed. The court held that declaration of unitary status should be

withheld until the ordered improvements were completed, which would

certainly be accomplished in less than three years. Id. at 1168. 

The court held that transportation was so closely related to the

racial isolation vestige that it was not advisable to relinquish

jurisdiction over the transportation aspect until the KCMSD was unitary in

student assignments. The court therefore declined to find the State had

carried its burden of proof on the transportation vestige. Id. 

As to the State's motion for unitary status regarding extracurricular activities, the court held that the State has carried its burden

of proving the KCMSD unitary in this respect. The adverse parties seem to

agree on this issue. Id. The court rejected the State's argument in all

other respects.

The court then considered whether to approve the agreement between

the State and the KCMSD releasing the State from liability upon the payment

of $314 million (plus an additional $6 million added by the court after the

agreement was entered). Id. at 1152. The court looked at various figures

reflecting the spending level in the KCMSD per pupil as compared with the

other largest school districts in the United States. Id. at 1170. It

recited the testimony of Dr. John Murphy that the transition funding

provided under the agreement would be sufficient to allow a systematic and

orderly transition period during which the KCMSD could become selfsufficient. It looked to Dr. Murphy's testimony that if the agreement were

approved, the KCMSD would have sufficient funds not only to offer quality

education, but to make the curriculum and other reforms necessary to

improve student achievement. Id. The court also looked at testimony

concerning the possibilities of the KCMSD achieving other savings, such

as reduced transportation expenditures. The fact that much of the capital

improvement program had been paid for out of current revenue, rather than

debt, 
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created a situation in which the district would have to pay little for debt

service in future years. Id. at 1171. The court also considered that the

racial isolation vestige could be rectified in two years, and that many of

the goals of the quality education programs had been reached. Id. at 1171-

72.

The district court rejected arguments of the Jenkins Class that the

court had no authority or jurisdiction to approve the agreement. Id. at

1172. The district court concluded that, considering the KCMSD's proximity

to unitary status, any remaining obligation of the State to the KCMSD

school children would be discharged by the payment of the funds provided

in the agreement. It observed that the State has been responsible for the

funding, and not the implementation, of the desegregation programs. The

court therefore modified the joint and several liability finding to make

the KCMSD liable individually. The court decreed that the State's

obligation shall end and the State will be entitled to an order from the

court dismissing it from the action when it has paid the sums provided for

in the agreement. Id.

While the court had released the State from further obligations,

except for the payment of funds, it suggested that Dr. Robert Bartman of

the Department of Elementary and Secondary Education of Missouri had the

educational expertise and familiarity with the history of the KCMSD

desegregation effort to provide guidance during the transition period, and

that the Department should give approval before decisions are made about

the necessary budget cuts. Id. at 1178. This was made as an appeal to the

Department and Dr. Bartman's sense of duty. The court concluded that if

the Department and Dr. Bartman declined the court's appeal, then the court

would seek the Department's help in finding a special master to oversee the

KCMSD. Id. at 1179. We are informed that the Department and Dr. Bartman

have declined this invitation. The issue, however, remains before the

district court, and while the district judge presiding over this case for

many years has turned over superintendence of the 
The Honorable Dean Whipple, United States District Judge for the Western

4

District of Missouri.

In Kalamazoo Board of Education, 640 F.2d at 808-09, another reason for

5

putting the burden of proof on plaintiffs was that they were seeking additional relief,

whereas the original decree stated that any party seeking to modify the decree would

bear the burden of "justifying changes."

-10-

case to another judge, we are satisfied that the urgency of timely

4

disposition of further supervision over the district will be promptly

considered. 

I.

The State argues that it is entitled to a declaration that the KCMSD

has achieved unitary status. Interestingly, the KCMSD, as well as the

Jenkins Class, defend the district court's holding that the KCMSD is not

unitary. The threshold issue is whether the State or the Jenkins Class

bears the burden of proof on this issue. 

Generally, once there has been a finding that a defendant established

an unlawful dual school system in the past, there is a presumption that

current disparities are the result of the defendant's unconstitutional

conduct. See Keyes v. School Dist. No. 1, 413 U.S. 189, 208-09 (1973);

Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537-38 (1979); Freeman v.

Pitts, 503 U.S. 467, 494 (1992); see also United States v. Fordice, 505

U.S. 717, 744 (1992) (O'Connor, J., concurring). Only when a school

district has attained unitary status does the burden of proving disparities

were caused by intentional segregation shift back to the plaintiffs. See

School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987); see also

Oliver v. Kalamazoo Bd. of Educ., 640 F.2d 782, 810 (6th Cir. 1980) (error

in assigning burden of proof to defendants where defendants' liability

under earlier decree "had been satisfied"). If, however, a defendant is 5

joined after the finding of liability, that defendant is, naturally, not

subject to the presumption applied to adjudicated constitutional violators.

See United States v. City of Yonkers, 833 F. 
-11-

Supp. 214, 220 (S.D.N.Y. 1993) (shifting burden to new defendant would be

"problematic").

The State contends that the general rule of presuming causation

applies to disparities of the sort mentioned in Green, 391 U.S. at 435, but

not to disparities in student achievement. The State contends this

distinction is appropriate because the defendants have control over the

Green factors, such as student assignment, equality of facilities, and

transportation, whereas the defendants do not have control over student

achievement. The State argues that too many external factors affect student

achievement to require the State to prove that it did not cause low

minority achievement. 

This argument is not persuasive. As the Supreme Court noted in

Jenkins III, the Green factors can also be affected by forces outside the

defendants' control:

Just as demographic changes independent of de jure segregation

will affect the racial composition of student assignments, so

too will numerous external factors beyond the control of the

KCMSD and the State affect minority student achievement.

515 U.S. at 102 (citation omitted). The task of the court in analyzing

either type of disparity is to determine whether it was caused by

defendants' misconduct or by external factors. The burden of proof rules

are simply the framework for making that inquiry.

There is, nevertheless, a meaningful distinction between the Green

factors and the student achievement factor. Disparities in the Green

factors, such as student assignment, inherently define a dual school

system, which could not exist without such disparities. See Coalition to

Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776 (3d Cir. 1996)

(Green factors are per se vestiges of de jure segregation). On the other
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hand, disparity or impairment in student achievement may or may not be

found in a particular case and may or may not be the result of a

segregated or dual system. For this reason, the presumption of causation

will only be applied to student achievement disparities if the court has

already specifically found that student achievement in the district has

suffered as a result of the dual system. Thus, in Coalition to Save Our

Children, the district court had not included disparity in student

achievement as a subject for ancillary (i.e., non-Green) relief in its

remedial decree. When the defendants later moved for a declaration of

unitary status, the Third Circuit held that the plaintiffs had the burden

of proving that disparities in student achievement were vestiges of de jure

segregation. Id. at 776-77. Accord City of Yonkers, 833 F. Supp. at 222

n.3 (no initial finding that segregation caused reduction in student

achievement; plaintiffs bear burden of showing causation).

In the early days of this case, the district court specifically found

impairment in student achievement in the KCMSD was a result of the dual

school system. In 1984 the district court found:

The Court finds the inferior education indigenous of the statecompelled dual school system has lingering effects in the

Kansas City, Missouri School District.

593 F. Supp. at 1492. Again, in 1985, the District Court found:

Segregation has caused a system wide reduction in student

achievement in the schools of the KCMSD . . . .

. . . .

. . . [The] education process has been further "bogged down" in

the KCMSD by a history of segregated education. Too often, as

a result, a higher percentage of black students are among the

lower achievers.
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639 F. Supp. at 24, 28. Therefore, the Jenkins Class was entitled to a

presumption that current deficiencies in student achievement were a

continuation of the vestige already identified. See Baliles, 829 F.2d at

1311-12 (rejecting argument that presumption of causation only applies to

Green factors, not to student achievement). But see People Who Care v.

Rockford Bd. of Educ., No. 89 C 20168, 1996 WL 364802 at *73 n.146 (N.D.

Ill. June 7, 1996) (presumption of causation not applicable to achievement

disparity), aff'd in part and rev'd on other grounds, 111 F.3d 528, 537-38

(7th Cir. 1997) (in light of lack of evidence about proportion of

achievement gap caused by defendants, district court erred in ordering

defendants to close 50% of gap).

The State contends that in Jenkins III the Supreme Court held the

district court's findings of student achievement vestiges in the KCMSD were

inadequate and therefore ineffective to shift the burden of proof to the

State. In fact, the Supreme Court did not say the district court's

student achievement findings were insufficient to establish liability for

the student achievement vestige. To the contrary, the Court specifically

contemplated that the reduction in student achievement must be remedied:

Thus, the proper response by the District Court should have

been to eliminate to the extent practicable the vestiges of

prior de jure segregation within the KCMSD: a system-wide

reduction in student achievement and the existence of 25

racially identifiable schools. . . .

515 U.S. at 90. As the State points out, the Court observed that the

district court had never made findings on the severity of the vestige, or

the "incremental effect that segregation has had on minority student

achievement or the specific goals of the quality education programs." Id.

at 101. The Court made this observation in the context of discussing what

measure of improvement should be required to establish unitariness. In the

same paragraph the Court stated: "Under our precedents, the State and the

KCMSD are entitled to a rather precise statement of [their] obligations

under a desegregation decree." Id. (quotation omitted). The Court did not

question the 
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existence of the achievement vestige; instead, it ordered that the district

court clarify the quantum of the student achievement vestige, so that the

parties could know what mark they and the court were aiming at. But see

id. at 118 (Thomas, J., concurring) (questioning validity of 1984 finding).

In the order we review today, the district court complied faithfully with

the Supreme Court's command to quantify the vestige.

The State also argues that the passage of time since the days of

state-mandated segregation makes it inappropriate to presume that current

conditions resulted from that segregation. Justice Scalia's concurrence

in Freeman suggested that the passage of time renders the presumption of

causation inappropriate. See 503 U.S. at 506 (Scalia, J., concurring)

("[T]he rational basis for the extraordinary presumption of causation

simply must dissipate as the de jure system and the school boards who

produced it recede further into the past."). However, the majority opinion

in Freeman continued to recognize the presumption. The majority opinion

acknowledged that the passage of time does have some probative value,

tending to strengthen a defendant's case that de jure segregation did not

cause current disparities. The majority stated:

As the de jure violation becomes more remote in time and

these demographic changes intervene, it becomes less likely

that a current racial imbalance in a school district is a

vestige of the prior de jure system. . . . In light of its

finding that the demographic changes in DeKalb County are

unrelated to the prior violation, the District Court was

correct to entertain the suggestion that DCSS had no duty to

achieve system-wide racial balance in the student population.

Id. at 496. At the same time, the Freeman majority reiterated: "The

school district bears the burden of showing that any current imbalance is

not traceable, in a proximate way, to the prior violation." Id. at 494.

Keyes specifically rejected the idea that the passage of time could cause

the burden to shift back to the plaintiffs: "[C]ertainly plaintiffs in a

school desegregation case are not required to prove 'cause' in the sense
The passage of time is often overstated by reference to the time of the de jure 6

violations or the duration of this suit. It is frequently overlooked that the obligation of

the KCMSD and the State to eliminate the vestiges of the de jure dual school system

was not seriously undertaken until after the affirmance by this court in Jenkins v.

Missouri, 855 F.2d 1295 (8th Cir. 1988), cert. denied in part, 490 U.S. 1034 (1989),

aff'd in part and rev'd in part, 495 U.S. 33 (1990), of the intradistrict remedies crafted

by the district court. Thus, it was not until the late 1980's that implementation of the

remedies was commenced, and it was in the early 1990's that the effort was well under

way. 

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of 'non-attenuation.'" 413 U.S. at 211 n.17. Therefore, we conclude that

the passage of time is an evidentiary consideration, but not a bar to the 6

usual burden-shifting rules.

The State also argues that the presumption of invidious causation

should not be applied to the State because the State's obligation has only

been to pay for the remedy, not to implement it. We deal with this

argument infra at pages 16-18.

II.

Jenkins III reiterated the standard for determining whether a school

district has become unitary: 

[A]mong the factors which must inform the sound

discretion of the court in ordering partial

withdrawal are the following: [1] whether there

has been full and satisfactory compliance with the

decree in those aspects of the system where

supervision is to be withdrawn; [2] whether

retention of judicial control is necessary or

practicable to achieve compliance with the decree

in other facets of the school system; and [3]

whether the school district has demonstrated, to

the public and to the parents and students of the

once disfavored race, its good-faith commitment to

the whole of the court's decree and to those

provisions of the 
-16-

law and the Constitution that were the predicate for judicial

intervention in the first instance. [Freeman v. Pitts,] 503

U.S., at 491.

The ultimate inquiry is whether the [constitutional violator]

ha[s] complied in good faith with the desegregation decree

since it was entered, and whether the vestiges of past

discrimination ha[ve] been eliminated to the extent

practicable. 

515 U.S. at 89 (quotation omitted). 

The Court of Appeals reviews the district court's findings as to the

existence of vestiges of segregation under the "clearly erroneous"

standard. See Lockett v. Board of Educ., 111 F.3d 839, 841-42 (11th Cir.

1997) (per curiam); Coalition to Save Our Children, 90 F.3d at 760; Flax

v. Potts, 915 F.2d 155, 157 (5th Cir. 1990). 

The difficult issue before the district court and before us in this

appeal is whether the vestiges of past discrimination have been eliminated

to the extent practicable. Before we reach this issue, we will briefly

comment on whether there has been full and satisfactory compliance with the

decree in those aspects where supervision is to be withdrawn, and whether

the State has demonstrated to the public, the parents, and the students of

the once disfavored race a good faith commitment to the whole of the court

decree. 

The Supreme Court observed that the State's role with respect to

quality education programs has been limited to funding, not implementation,

of these programs. Jenkins III, 515 U.S. at 101. The district court

recognized the Supreme Court's language in its opinion. 959 F. Supp. at

1172. With the passage of time this has been the nature of the State's

compliance. It should be remarked, however, that in the early days of

crafting the intra-district remedy, the Jenkins Class, the KCMSD, and the

State were called upon to submit proposed remedial plans, and did so. The

early orders of 
-17-

the district court accepted the plans put forth by the Jenkins Class and

the KCMSD, and rejected the State's proposals as inadequate. See, e.g.,

Jenkins v. Missouri, 672 F. Supp. 400, 404 (W.D. Mo. 1987), aff'd in

relevant part, 855 F.2d 1295 (8th Cir. 1988), cert. denied in relevant

part, 490 U.S. 1034 (1989). Perhaps this established a pattern of either

the Jenkins Class or the KCMSD assuming responsibility for proposing

remedial measures, and the State relying upon legal objections to the plan

and ultimately ceasing any effort to make a contribution toward directing

or administering the aspects of the remedy. The State had an opportunity

to help shape the remedy, and perhaps the long history of this litigation

would have been different had it accepted the challenge to do more than pay

when ordered to do so. Nevertheless, this pattern having been established,

the State has undoubtedly complied with the decrees of the district court

by funding the programs that have been ordered. 

The State places great emphasis on the amount of money that has been

spent in Kansas City. It must be remembered in looking back on the long

history of this case, however, that the district court found and this

court affirmed findings that the physical plant of the KCMSD had literally

rotted; that the inferior education indigenous of the state-compelled dual

school system has lingering effects in the Kansas City, Missouri School

District; that the general attitude of inferiority among blacks produces

low achievement which ultimately limits employment opportunities and causes

poverty; and finally, that segregation has caused a system-wide reduction

in student achievement in the schools of the KCMSD. See Jenkins v.

Missouri, 855 F.2d at 1300 (citing district court decisions at 593 F. Supp.

at 1492, 639 F. Supp. at 24, and 672 F. Supp. at 411).

Restoration of the physical facilities has had a total cost of

approximately $500 million, with funds contributed roughly equally by the

State and the KCMSD. With respect to educational and other programs, the

State has spent approximately $950 million, and the KCMSD has spent about

$350 million. The extensive constitutional violations have required

extensive expenditures.
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Suffice it to say that we are left with some question in our minds

as to whether the State has demonstrated a "good-faith commitment to the

whole of the court's decree and to those provisions of the law and the

Constitution that were the predicate for judicial intervention in the first

instance." Freeman, 503 U.S. at 491. Justice Souter, in his dissent in

Jenkins III, questioned the State's commitment to complying with the

district court's decree. He quoted the district court's statement that

"during the course of this lawsuit the Court has not been informed of one

affirmative act voluntarily taken by the Executive Department of the State

of Missouri or the Missouri General Assembly to aid a school district that

is involved in a desegregation program." 515 U.S. at 152 (Souter, J.,

dissenting) (quoting District Court's Order of Nov. 12, 1986, slip op. at

7). Justice Souter also quoted the following statement of the district

court: "The State, also a constitutional violator, has historically

opposed the implementation of any program offered to desegregate the KCMSD.

. . . [T]he State has never offered the Court a viable, even tenable,

alternative and has been extremely antagonistic in its approach to

effecting the desegregation of the KCMSD." Id. (quoting District Court's

Order of April 16, 1993, slip op. at 2). In view of our analysis of

whether the vestiges of segregation have been remedied to the extent

practicable, we need not further examine this issue.

III.

We now turn to the issue that the Supreme Court stated was the basic

task of the district court, namely deciding whether reduction in

achievement by minority students attributable to prior de jure segregation

has been remedied to the extent practicable. In Jenkins III the Supreme

Court said:

Under our precedents, the State and the KCMSD are "entitled to

a rather precise statement of [their] obligations under a

desegregation decree." [Freeman, 498 U.S.] at 246. Although

the District Court has determined that "[s]egregation has

caused a system wide reduction in achievement in 
-19-

the schools of the KCMSD," 639 F. Supp., at 24, it never has

identified the incremental effect that segregation has had on

minority student achievement or the specific goals of the

quality education programs. 

515 U.S. at 101. 

In the order now before us, the district court directed its attention

to identifying the incremental effect that segregation has had on minority

student achievement, and also to specifying the goals of the quality

educational programs. It should first be said that the district court in

its order of September 17, 1984, pointed to evidence in the record before

it in stating: 

The general attitude of inferiority among blacks produces low

achievement which ultimately limits employment opportunities

and causes poverty. . . . The District stipulated that as of

1977 they had not eliminated all the vestiges of the prior dual

system. The Court finds the inferior education indigenous of

the state-compelled dual school system has lingering effects in

the Kansas City, Missouri School District.

593 F. Supp. at 1492 (citations omitted).

The court pointed out further that various plans adopted by the KCMSD

in an effort to reduce minority isolation had not been effective. The

court stated: 

During the 1983-84 year, no school had less than 30% black

enrollment; 24 schools however are racially isolated with 90 +

% black enrollment. The Court finds the District did not and

has not entirely dismantled the dual school system. Vestiges

of that dual system still remain.

Id. at 1493 (citations omitted).
-20-

The court also stated that because most of the schools were in

racially segregated neighborhoods before 1954, the adoption of the

neighborhood school concept did not substantially change the segregated

school system. Id. Optional attendance zones adopted after Brown v. Board

of Education, 349 U.S. 294 (1955), did not aid the district's integration,

but on the contrary allowed segregated attendance patterns to continue.

593 F. Supp. at 1494.

There is a significant relationship between the testimony the court

pointed to in 1984 and the testimony presented at the hearing in January

1997 by the expert witnesses. 

The State's expert witness, Dr. David Armor, testified that in

analyzing test scores of black and white students in the KCMSD, using a

bell curve with a median score of 50 normalized curve equivalent (NCEs),

whites scored about ten NCEs higher than blacks. Armor testified that

"most, if not virtually all" of this achievement gap in the Kansas City,

Missouri School District was the result of socio-economic conditions.

However, Dr. Armor could only identify socio-economic conditions accounting

for about two-thirds of the gap; the other third remained unexplained. 959

F. Supp. at 1163. 

On the other hand, the expert produced by the KCMSD, Dr. William

Trent, testified that after controlling for poverty, family background, and

other factors, there was still a "race effect" that could be due to past

segregation. Id. at 1158. The gap existed in 1986 and 1988, continues to

exist now, and has never been eliminated. Dr. Trent concluded that about

4% to 9% of the achievement gap was explained by race. Id. Significantly,

the State's expert, Dr. Armor, testified that the size of the achievement

gap grows larger the longer the children remain in school. Id. at 1159.

Moreover, Dr. Trent testified that teachers' low expectations of

achievement in schools with high percentages of minority students also

contribute to the achievement gap. Id. 
The State briefly suggests that Dr. Trent's testimony did not "rise to the level of 7

evidence" contemplated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579 (1993). The State does not cite any reference to the record at which it objected

to the evidence under Daubert. We therefore understand the State's argument to be a

substantive argument about sufficiency of the evidence, rather than an evidentiary

objection.

-21-

After setting out the substance of the testimony of these expert

witnesses, the district court pointed out that the State's reliance on

socio-economic factors was inadequate to explain about 35% of the gap, even

taking the State's expert at his word. Id. at 1163. The court found that

Dr. Trent's analysis showing a "race effect" explaining 4-9% of the gap was

"reliable and accurately identifies the incremental portion attributable

to the prior de jure discrimination." Id. The court found that the

teacher expectation variable explains 2-4% of the gap, id., and that the

teachers' lower expectations were a result of earlier de jure segregation.

Id. at 1164. The court took the high end of these ranges in reaching the

figure of 13%. The court also held that the increase in the gap as the

children progressed through the KCMSD could also be attributed to

discrimination, id. at 1165, and this, together with the gap when the

students entered school, was 26% of the achievement gap. The court

concluded that these figures translated into a mandate to the school

district to reduce the achievement gap by 2.6 NCEs. The court ordered that

this task was to be completed within three years. It concluded that KCMSD

has not currently attained unitary status regarding the quality of

education. Id.

It is evident that the district court rejected Dr. Armor's opinion

that socio-economic factors alone were the cause of the achievement gap in

the KCMSD. We cannot say that the district court clearly erred in making

this finding. The burden of proof was on the State to prove that it had

not caused the gap, and the State's expert could not explain a third of the

achievement gap by his socio-economic theory. The State simply failed to

carry its burden, and our discussion could end at this point. But in

addition, the district court accepted Dr. Trent's explanation quantifying

that part of the achievement gap resulting from race; that was a finding

of fact based upon research by a well-qualified expert. Dr. Trent's

7

testimony provided a rational explanation for 
The expert testimony was responsive to the Supreme Court's direction to

8

quantify the achievement gap. It was the only testimony to address this issue, and came

from all parties.

-22-

the achievement gap and the extent of it, and we cannot conclude that the

district court erred in so finding.8

IV.

The State attacks the district court's denial of unitariness status

as to four of the five Green factors--student assignments, faculty and

staff assignments, transportation, and facilities.

The KCMSD contended that the current racial balance within its

schools was unknown because of the effect of the withdrawal of suburban

students after Jenkins III. The district court observed that the student

assignment aspect of the remedy in this case had depended primarily on

voluntary transfers from the suburbs in conjunction with magnet schools,

rather than on mandatory reassignment. Id. at 1166. After Jenkins III,

many suburban students left the KCMSD. The district court found that the

"ramifications of the withdrawal of the 1476 white students cannot be

judged at this time." Id. at 1167. The court declined to declare the

KCMSD unitary in this regard until the effects of this change in the

enrollment could be ascertained. Therefore, the State failed to carry its

burden of proof that there was no student assignment vestige. The State

contends that, whatever the student assignment statistics, the KCMSD is not

currently engaging in discriminatory student assignment practices, and

therefore there should be no vestige under Pasadena City Board of Education

v. Spangler, 427 U.S. 424 (1976).
-23-

Under Spangler and Freeman, school districts that have once

eliminated the student assignment vestige are not required to readjust

student assignments to compensate for subsequent imbalances caused by

forces other than intentional segregation. "Once the racial imbalance due

to the de jure violation has been remedied, the school district is under

no duty to remedy imbalance that is caused by demographic factors."

Freeman, 503 U.S. at 494. The key distinction between this case, on the

one hand, and Spangler and Freeman, on the other, is that there is no

finding in this case that the KCMSD ever eliminated the student assignment

vestige. The district court's strategy for eliminating this vestige was

the magnet school program, rather than the sort of unilateral reassignment

decree used in Spangler. See 427 U.S. at 435-36. This strategy was at

least partly aborted by the Jenkins III ruling, and the district court

found that, on the present state of the record, it was impossible to assess

the racial balance in the schools during the process of dismantling the

original remedy. This finding was not clearly erroneous. Accordingly, the

State's invocation of Spangler and Freeman on this point is premature. See

Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th Cir. 1985) ("Until a

unitary system is created, a school system is not absolved from this duty

by reason of demographic changes."); Haycraft v. Board of Educ., 560 F.2d

755, 756 (6th Cir. 1977) (Spangler not relevant where segregation has never

been remedied).

The district court found that the transportation factor was so

closely bound to student assignment that the uncertainty affecting the

student assignment vestige also prevented a finding of unitariness as to

transportation. 959 F. Supp. at 1168. In Freeman the Supreme Court

foresaw the possibility of such intertwining. "Two or more Green factors

may be intertwined or synergistic in their relation, so that a

constitutional violation in one area cannot be eliminated unless the

judicial remedy addresses other matters as well." 503 U.S. at 497. There

is no clear error in the district court's finding.

As to the facilities factor, the district court found that certain

court-ordered renovations remain to be completed. 959 F. Supp. at 1168.

The district court did not 
-24-

err in requiring the terms of the court's decree to be completely fulfilled

before relinquishing the ability to enforce compliance with the decree.

In considering the faculty and staff assignments factor, the district

court relied on the testimony of the State's witness Dr. Armor, who

testified that, while the KCMSD had once complied with the court's orders

to bring about racial balance in faculty and staff assignments, the

percentage of elementary schools complying with the balance guidelines had

"decreased steadily" in recent years. Id. at 1168. The court also

concluded that it was necessary for the court to retain control over

faculty appointments in order to maintain flexibility in other areas, such

as reducing expenditures. Id. Under Freeman, the district court retains

discretion to determine whether to relinquish jurisdiction on a piecemeal

basis. See 503 U.S. at 493. Where the district court has reason to retain

supervision over an area to aid its jurisdiction over unfinished business,

Freeman certainly does not require the court to declare partial

unitariness. See id. at 497-98.

We thus conclude that the district court did not err in finding that

the achievement gap vestige had not been remedied to the extent

practicable, and that four out of the five Green factors had not been

remedied. Thus, the KCMSD could not be held unitary in any aspect other

than extra-curricular activities. 

V.

The Jenkins Class appeals the district court's approval of the

agreement between the State and the KCMSD. Pursuant to the agreement, the

State will be dismissed from this litigation after it pays the KCMSD

approximately $320 million over three fiscal years to implement

desegregation remedies in the district. 
-25-

A.

The Jenkins Class contends that we review the district court's

approval of the agreement de novo. The State contends that the district

court had discretion to modify its earlier remedial orders based on changed

conditions, and that we review such a modification only under an abuse of

discretion standard. The KCMSD argues that the district court has broad

discretion to determine the scope of its remedy. 

There is no single blueprint or universal answer for desegregation

cases, see Milliken v. Bradley, 433 U.S. 267, 287 (1977), and "there is

obviously no one plan that will do the job in every case." See Green, 391

U.S. at 439. Instead, the district court, which has "firsthand experience

with the parties and is best qualified to deal with the 'flinty,

intractable realities of day-to-day implementation of constitutional

commands,'" has broad and flexible equitable powers to fashion

desegregation remedies. United States v. Paradise, 480 U.S. 149, 184

(1987) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,

6 (1971)). "Once a right and a violation have been shown, the scope of a

district court's equitable powers to remedy past wrongs is broad, for

breadth and flexibility are inherent in equitable remedies." Swann, 402

U.S. at 15; see also Little Rock Sch. Dist. v. Pulaski County Special Sch.

Dist., 839 F.2d 1296, 1314 (8th Cir.) (the district court has "broad

remedial authority in dismantling segregation"), cert. denied, 488 U.S. 869

(1988). Because the district court possesses such broad discretion, "[o]ur

standard of review of the district court's actions . . . is restricted."

Jenkins, 855 F.2d at 1299. We must "give great deference to a district

court's exercise of its broad equitable powers in crafting a remedy in

school desegregation cases." Jenkins v. Missouri, 965 F.2d 654, 656 (8th

Cir. 1992).

 

The district court retains this broad equitable authority throughout

the entire desegregation case to modify the remedy as it deems necessary.

Indeed, the district court has often done so during the long life of this

case, and we have affirmed such modifications. The court has "inherent

capacity to adjust remedies in a feasible and 
-26-

practical way to eliminate" the unconstitutional conditions. Freeman, 503

U.S. at 487, 489 (holding that the district court had discretion "to order

an incremental or partial withdrawal of its supervision and control"). In

an earlier Jenkins opinion, we described the district court's broad and

continuing equitable authority:

[A] federal court has "inherent jurisdiction in the exercise of

its equitable discretion and subject to appropriate appellate

review to vacate or modify its injunctions." Booker v. Special

School Dist. No. 1, 585 F.2d 347, 352 (8th Cir. 1978), cert.

denied, 443 U.S. 915 (1979). School desegregation plans are

particularly likely to need adjustment. As the Supreme Court

has observed regarding such cases: "[E]quity has been

characterized by a practical flexibility in shaping its

remedies and by a facility for adjusting and reconciling public

and private needs." Milliken [v. Bradley, 433 U.S. 267, 288

(1977)] (quoting Brown v. Board of Educ., 349 U.S. 294, 300

(1955)). . . .

We have said that the basic responsibility for

determining whether and to what extent an injunction should be

modified "rests primarily on the shoulders of the district

court that issued the injunction in the first place." Booker,

585 F.2d at 353. 

Jenkins v. Missouri, 931 F.2d 470, 482 (8th Cir.), cert. denied, 502 U.S.

967 (1991).

Thus, our review of the district court's order approving the

agreement is limited, and we may reverse that order only if we conclude

that it was an abuse of the court's discretion. See, e.g., Swann, 402 U.S.

at 31 (court must affirm desegregation order if it is reasonable,

feasible, and workable). To the extent that the court based its order on

findings of fact, those findings "may not be disturbed unless clearly

erroneous." Jenkins, 855 F.2d at 1300. With these standards in mind, we

now consider the merits of the agreement.
-27-

B. 

Certain aspects of the agreement, and its intended effect, are

greatly troubling to us. The two constitutional violators, the State and

the KCMSD, have agreed to release one of the violators, the State, from any

further duty to the constitutional victims beyond the duty to pay the

specified sums of money. The constitutional victims are not a party to

this agreement. We must bear in mind, however, the Supreme Court's

directive in Jenkins III that the district court "should consider that the

State's role with respect to the quality education programs has been

limited to the funding, not the implementation, of those programs." 515

U.S. at 101. The Court also reaffirmed the district court's ability to

declare partial unitary status and permit the violator's partial withdrawal

in phases. See id. at 88, 101. With the Supreme Court's directives in

mind, we will now turn to the considerations supporting approval of the

agreement.

The basic foundation for the district court's approval of the

agreement is its assumption that the KCMSD will be unitary within two to

three years. As set forth in parts III and IV of this opinion, we affirm

the court's findings regarding unitary status both as to educational

achievement and as to the Green factors. 

The court properly recognized that the Supreme Court's standard for

unitary status does not require total elimination of the vestiges of

discrimination, including the achievement gap, but focuses on whether those

vestiges have "been eliminated to the extent practicable." Id. at 89

(quoting Freeman, 503 U.S. at 492). Perhaps the district judge who has

lived with this case for nearly twenty years was making an optimistic

prediction about the KCMSD's progress toward desegregation in the next two

to three years. On the other hand, however, we must affirm if the district

court's findings support its conclusion that a period of two to three years

will allow the remaining vestiges to be eliminated to the extent

practicable. 
-28-

The district court relied primarily on the testimony of Dr. John

Murphy, a former school superintendent for both the Prince George's County,

Maryland district and the Charlotte-Mecklenburg district in North Carolina,

as well as other districts. Both Prince George's County and CharlotteMecklenburg were subject to court desegregation orders during Dr. Murphy's

tenure. Dr. Murphy was asked to develop a transition plan to focus on

improving the quality of learning in the KCMSD with the understanding that

there would be a significant reduction in expenditures over three years.

He expressed the opinion this could be done. Dr. Murphy testified that the

agreement would provide the KCMSD with approximately $6,000 per pupil per

year, an amount which would be sufficient not only to offer a quality

education, but also to make the curriculum and other reforms necessary to

improve student achievement. There was evidence in the record that Dr.

Murphy had achieved similar goals in Prince George's County while spending

$5,405 per pupil. While it may be true that Dr. Murphy's testimony dealt

with one-third of the district he supervised in the 1992-93 school year and

with costs for a different time and locality, the weight of his testimony

was to be assessed by the district court. His testimony was clear that the

level of funding provided by the agreement would be sufficient to

implement the strategies and improvements that he believed were necessary

in the KCMSD, similar to those in Charlotte-Mecklenburg or Prince George's

County. The phase-out over a three-year period was critical to Dr. Murphy,

and he testified that a gradual reduction in funding would allow district

administration and staff to do a better job, even while resources were

being tightened. 

Dr. Michael Stolee, an experienced educator and former director of

the Florida School Desegregation Consulting Center, provided evidence

regarding student assignments. He testified that the KCMSD could be

reorganized within a two-year period at a cost paid by anticipated revenues

in a manner to eliminate racial isolation to the extent practicable. 
-29-

The district court ordered the KCMSD to reduce the achievement gap

by 2.6 NCEs within three years. 959 F. Supp. at 1179. Although the court

was unable to say with absolute certainty that the KCMSD will have attained

unitary status within the next three years, the court nevertheless

concluded that the three-year period was a reasonable time frame for the

KCMSD to accomplish its task. Id. The court noted that some witnesses

had testified that two to three years was sufficient to eliminate some of

the remaining vestiges, while other witnesses had testified that three to

five years would be required. Id. It concluded that three years should

be sufficient. Id. The court did not find that the remaining vestiges

can be eliminated to the extent practicable within this period, but rather

expressed a judgment as to the extent of the State's remaining obligation,

which was based on the testimony before it. We cannot conclude that the

district court erred or abused its discretion in this regard. 

With respect to the remaining Green factors, as we noted above, the

district court made factual findings that unitariness could be accomplished

in these areas within two to three years. We have reviewed the record as

a whole and conclude that these findings are not clearly erroneous. To the

extent there are conflicts in the evidence, resolution of such conflicts

is for the district court. 

In light of the evidence before the district court, we cannot hold

its findings to be clearly erroneous or its conclusion to be an abuse of

discretion. We confess that if we were the trier of fact, we would not

have reached this result with respect to the achievement gap. Our duty,

however, is to review the district court's findings for clear error, rather

than to make our own findings, and we do not find a basis for reversal

under this standard. 

C.

It is also significant that the time frame for terminating state

funding contemplated by the agreement is similar to that envisioned by the

district court several 
We must first pause to say that the State's funding-only role has come about

9

through the State's conscious policy choices to so limit its involvement. We do not

believe that either state or federal law contemplated such a limited role for the State.

-30-

years ago. In 1993, the court called upon the parties to submit plans for

terminating funding based on assumptions that the termination would occur

in three, five, seven, or ten years. See District Court's Order of April

16, 1993, slip op. at 21. The longer periods would terminate funding in

either 2000 or 2003. The agreement provides for State payments over three

years, which the KCMSD has agreed to spend over five years, thus providing

funding until the year 2001 or 2002. Therefore, there is only a small

difference between the timing of terminating State funding under the

agreement and the time frame previously contemplated by the district court.

Resolving issues such as extent and degree is a core function of the

district court, and it has considerable discretion in this task. We cannot

conclude that the district court abused its discretion in approving this

period for the phase-out of the State's funding obligation.

D.

We have described the State's role in implementing desegregation

remedies in this case as being limited to only providing funding. This

issue merits further discussion.9

Certainly, the Missouri Constitution imposes broader responsibilities

upon the State than simply providing financing. It provides that the

General Assembly shall establish and maintain free public schools for the

instruction of all children in the State, and that the supervision of

instruction in the public schools shall be vested in a state board of

education. Mo. Const. art. IX, §§ 1(a), 2(a). 

The State bore a duty under the federal Constitution to eliminate the

dual school system created by law, which indeed it has done, but its duty

did not end there. The 
During oral argument, the parties identified a number of State programs that are 10

being developed that will be available to the KCMSD, but these programs have not yet

had a significant impact on the district.

-31-

State was further required to eliminate the vestiges of such system to the

extent practicable, a far broader responsibility. Despite this

constitutional responsibility, however, the State's only action besides

funding has essentially been limited to repeatedly objecting to the remedy

proposals submitted by both the Jenkins Class and the KCMSD, as shown by

a perusal of this court's opinions.

Thus, the State's role in this protracted litigation has evolved into

one of funding only. The agreement essentially acknowledges the present

state of affairs, and the KCMSD, by entering into the agreement, has

expressed its acceptance of this limited role.10

Funding for the KCMSD is unquestionably critical to the continuing

success of the district's programs. Indeed, the present level of funding,

on which the continuing operation of the schools is dependent, exists only

because of the district court's authority to enjoin enforcement of state

laws that bar the KCMSD from establishing a levy sufficient to operate the

schools. See Missouri v. Jenkins, 495 U.S. 33, 52 (1990). We also note

that the Missouri General Assembly, in its most recent session, passed a

house joint resolution submitting for state-wide voter consideration a

constitutional amendment to allow the KCMSD to maintain the levy at its

present level with district voter approval, thereby providing a means for

continued financial support of the KCMSD independent of court order after

the KCMSD is no longer under court supervision. See 1997 Mo. Legis. Serv.

H.J.R. No. 9 (Vernon's).

Sufficient funding is absolutely essential to the school district's

continued viability. All parties agree that the loss of the level of

funding under the current levy would be catastrophic and would reduce the

district's funding to less than half the 
We have considered, and now reject, the Jenkins Class's other arguments in

11

opposition to the agreement. The Class analogizes the agreement to a contract and

contends that it cannot be bound by a contract to which it is not a party. Regardless

of the agreement, the district court's order is not akin to a contract. The Class

presented its objections to the district court, those objections were overruled, and the

Class is now bound by that order to the same extent as any other court order in this

case.

The Class also argues that the district court erred in approving the agreement

because: (1) the court was not presented with a justiciable controversy; (2) the order

is invalid as an advisory opinion; and (3) the agreement cannot be viewed as an

alternative remedy plan because the State did not seek declaratory relief. These

arguments must fail based on our holding that the court's approval of the agreement was

an exercise of its continuing equitable authority to devise and implement a remedy in

this case.

-32-

amount that has been available to the KCMSD for a number of years. Should

this loss of funding occur, it would present a changed circumstance that

could call for reconsideration of the agreement.

E.

The Jenkins Class argues that the State cannot be dismissed because

it is both a constitutional violator and a defendant subject to joint and

several liability. The district court has concluded that the State's

liability as constitutional violator will be satisfied by the payments

called for in the settlement. It has amended the remedy with regard to

joint and several liability. Although the agreement contemplates the

11

dismissal of the State in the future, the KCMSD will nevertheless remain

subject to court supervision as a constitutional violator liable to the

constitutional victims. The KCMSD has not sought a declaration of unitary

status with respect to any part of its operations. The effect of the

agreement is that the KCMSD now bears sole responsibility for implementing

the desegregation remedy and obtaining the funding necessary to do so. 
-33-

In the district court's order approving the settlement, the court

expressed concerns about the KCMSD's management, including its top-heavy

administration. 959 F. Supp. at 1175-77. The court acknowledged that the

KCMSD has made significant progress in the face of substantial obstacles,

not the least of which has been the ever-shifting leadership in the KCMSD

administration. Id. at 1173. There have been ten district

superintendents in the last nine years. Id. The district court made plain

that it was simply making observations, and not findings of fact, and that

its observations played no role in its decision to approve the agreement.

We find instructive, however, the court's identification of areas in which

the district's performance has been "dismal at best." Id. These include:

(1) the KCMSD still lacks a comprehensive integrated educational and

instructional plan; (2) the KCMSD's fragmented efforts to implement

meaningful staff development measures have fallen far short of the mark;

(3) ongoing administrative instability has plagued the KCMSD for years,

resulting in a lack of accountability for deficiencies; (4) the KCMSD still

lacks a security plan; and (5) the KCMSD is unable to produce a budget for

a particular fiscal year and reconcile it with actual expenditures for

specific line items. Id. at 1173-74.

 

The district judge making these observations, Judge Russell Clark,

has presided over this litigation from its inception in 1977 until his

decision to withdraw following issuance of the order which we now review.

In that twenty-year period, this case was consistently before the court,

and Judge Clark's extensive knowledge of conditions in the district has

come the hard way, through numerous hearings. His observations point to

the nature of the problems facing the district and sharply contrast with

the type of operation described by Dr. Murphy in his testimony. Needless

to say, these problems are substantial obstacles to the KCMSD's satisfying

its obligation to provide quality education. These obstacles are a

challenge to the KCMSD's management, and also impose a heavy duty on the

district court to closely supervise and monitor the KCMSD management.

Thus, in entering into this agreement, the KCMSD may well have brought upon

itself a circumstance that will subject it to more, rather than less,

judicial 
-34-

supervision, particularly during the transition period of the next three

to four years, and until the vestiges of segregation have been eliminated

to the extent practicable. 

The district court stated that the KCMSD's administration was not up

to the task of eliminating the remaining vestiges within the short time

required by the court. It expressed the view that a strong hand with

educational expertise and no "vested interest" was essential to accomplish

the difficult goals in this transitory period. Id. at 1178. We have

referred to the refusal of the court's request that Dr. Bartman and DESE

play a role in this respect. The district court stated that in this event

it would consider appointment of a special master to oversee the KCMSD and

urged that time was of the essence. We are in full agreement that on

remand the district court should promptly consider the issue of appropriate

supervision over the district. The deficiencies outlined by the district

court which we have discussed above and achievement of the goal of

attaining unitary status are difficult and complex. We agree with the

district court that this is attainable, but it will require skillful and

complex administrative and management effort. We leave to the discretion

of the district court how best to exercise its oversight. Time is short,

and the district court must do what is necessary to assure that the goals

are achieved. 

We affirm in all respects the district court's statements concerning

the transition leading to return of the district to local control. The

goal is to eliminate, to the extent practicable, the vestiges of

discrimination in this school district, and the district court should spare

no effort in ensuring that this goal is reached. 

Many aspects of the agreement and its effects are troublesome, and

we remain deeply concerned about the future of the KCMSD. The issue of

whether the district court erred in approving the agreement is a close one.

 Nevertheless, we cannot say that the district court clearly erred in its

factual findings regarding the agreement, nor that it abused its discretion

in approving the agreement and, in effect, modifying the earlier remedy

ordered by the court.
-35-

We thus affirm the judgment of the district court.

A true copy.

Attest:

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