`



# 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; *

## -2-

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 *

## -3- _____________ 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 *

## -4-

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. TheJenkins 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.
-5- _____________ 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 (199 5) ( Jenkins III ), the State of Missouri filed a motion in thi s lengthyschool 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 Stat e and the KCMSD entered into an agreement under which the State would pay th e KCMSD a total of $320 million over three years and be released from an y further obligation in this desegregation litigation. The court held a hearing from January 13 through January 31, 1997 , receiving testimony from

a la rge number of witnesses and a considerable volume of documentar y evidence. On March 25, 1997, the district court entered its o rder denying 1 the mo tion for unitary status in all respects except extra-curricula r 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 th e 2 district court's order denying a declaration of unitary status. We affirm the district court's order.

## -6- In discussing the State's motion for unitary status, the distric t court firs t outlined its earlier orders finding that there had been a system-wide reductionin student achievement in the schools of the KCMSD. 959 F. S upp. at 1153. It looked to its earlier orders identifying th e purpose of the public schools as furnishing quality education to thei r students and identifying educational achievement as a proper goal in a desegregation remedy. Id. (citing Jenkins v. Mi ssouri , 593 F. Supp. 1485, 1506 (W.D. Mo. 1984); Jenkins v. Missouri , 639 F. Supp. 19, 24 (W.D. Mo. 1985), aff'd as modif ied , 807 F.2d 657 (8th Cir. 1986), cert. denied , 484 U.S. 816 (1987)). The court then briefly reviewed the progress made in th e KCMSD. 959 F. Supp. at 1156.

The court determined that the burden of proof was on the State, the adjudg ed constitutional violator, to show that no vestiges of prio r discrimination remained in the KCMSD. Id. at 1156-57. It pointed out tha t once a court has foun d 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 o n 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.1 7 (1973) ). One of the vestiges the court found was an achievement ga p between black and whi te students in the KCMSD. The State argued that the Jenki ns Class should bear the burden of proving that this studen t achievement disparity was caused by the State's constitutional violation. The court rejected th e State's arguments, concluding that the achievement gap issue should be governed by the same burden-shifting rules as the othe r 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 wa s 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 Gr een v. County School Board , 391 U.S. 430, 435 (1968), the Suprem e 3 

## Court stated that school districts were obliged to desegre gate all aspects of their school systems, including: stu dent assignments, faculty and staff assignments, transportation, facilities, and extra -curricular activities. Disparities in these five aspects of a school's operations a

re the most important indicia of a segregated school system. See Jenkins III , 515 U.S. at 88.
-7- The cour t then turned to an analysis of the Green factors. Wit h 3 respect to student as signments 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 look ed at testimony that the KCMSD must develop and implement a student assignment system focusing exclusively on the pupils residing in the district, and tha t 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 poss ible to assess the effects of Jenkins III on minority enrollment. Id. at 1167.

With respect to faculty and staff assignments, the district cour t
recoun ted the testimony that the district had maintained a substantia l degree of racial balance in faculty assignments. Id. at 1166. However, the court also recognized testimony that, during recent years, while the secondaryschools 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 th e KCMSD has not yet achieved unitary status as to faculty assignments." Id. at 1168. However, th e 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 th e KCMSD, the court observed that the ca pital improvements already ordered were almost, but not entirely , completed. The court held that declaration of unitary status should b e withh eld until the ordered improvements were completed, which woul d certainly be accomplished in less than three years. Id. at 1168.

Th e court held that transportation was so closely related to th e racial isolation vestige that it was not advisable to relinquis h jurisdiction over the transportation aspect unti l the KCMSD was unitary in student assignments. The court therefore declined to find the State had carried its burden of proof on the transportation vestige. Id.

As to the State's motion for unitary status regarding extra

curricular activities, the court held that the State has carried its burde n of proving the KCMSD unitary in this respect. T he 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 betwee n the State and the KCMSD releasing the State from liability upon the paymen t of $314 million (plus an additional $6 million added by the court after th e agreement was entered). Id. at 1152. The court looked at various figures reflecting the spendi ng level in the KCMSD per pupil as compared with the other la rgest school districts in the United States. Id. at 1170. I t reci ted the testimony of Dr. John Murphy that the transition fundin g provided under the agreement would be sufficient to allow a systematic and orderl ytransition period during which the KCMSD could become self

sufficient. It looked to Dr. Murphy's testimony that if the agreement wer e approved, the KCMSD w ould have sufficient funds not only to offer quality educ ation, but to make the curriculum and other reforms necessary t o improve st udent achievement. Id. The court also looked at testimon y concerning the possibilities of the KCMSD achieving other savings, such as reduced transportation expenditures. The fac t that much of the capital improvement program h ad been paid for out of current revenue, rather than debt,

## -9-

created a situation in which the district would have to pay little for deb t service in future years. Id. at 1171. The cour t also considered that the racial isolation vestige could be rectified in t wo years, and that many of the goals of the quality education programs had been reached. Id. at 1171

- 72.

The distr ict 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 proximit y to unitary status, any remaining obligation of the State to the KCMS D school children would be discharged by the payment of the funds provided in the agreement. It observed that the State ha s 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 KCMS D 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 educat ional expertise and familiarity with the history of the KCMS D 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 th e Department and Dr. Bartman's sense of duty. The court concluded that if the Department and Dr. Bartman declined the cour t's appeal, then the court would seek the Department's help in finding a special master to oversee th e KCMSD. Id. at 1179. We are informed that the Department and Dr. Bartman have declined this invitation. The issue, however, remains before th e district court, and while the district judge presiding over this case for many years has turned over superintendence of the

## The Ho norable Dean Whipple, United States District Judge for the Western 4 

## District of Missouri.
In Kal amazoo Board of Education , 640 F.2d at 808-09, another reason fo r 5 

## putting the burden of proof on plaintiffs was that they were seeking additional relief,
w hereas the original decree stated that any party seeking to modify the decree would bear the burden of "justifying changes."
-10- case to a nother judge, we are satisfied that the urgency of timel y 4 dispos ition of further supervision over the district will be promptl y considered.

I.

The State argues that it is entitledto a declaration that the KCMSD has achie ved unitary status. Interestingly, the KCMSD, as well as th e Jenkins Class, defend the district court's holding that the KCMSD is not unitary. The threshold issue is whether the State or the Jenkins Clas s bears the burden of proof on this issue.

Generally, once there has been a finding that a defendant estab lished

an unlawf ul dual school system in the past, there is a presumption tha t
curr ent disparities are the result of the defendant's unconstitutiona l 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 , 50 3 U.S. 467, 494 (1992); see also United States v. Fordice , 50 5 U.S. 717, 744 (1992) (O'Connor, J., concurring). Only when a schoo l district has attained unitary status does the burden of proving disparitie s were caused by intent ional segregation shift back to the plaintiffs. See School Bd . v. Baliles , 829 F.2d 1308, 1311 (4th Cir. 1987); see als o Oliver v. Kalamazoo Bd. of Educ. , 640 F.2d 782, 810 (6th Cir. 1980) (error in ass igning burden of proof to defendants where defendants' liabilit y under earl ier decree "had been satisfied"). If, however, a defendant is 5 joined after the find ing 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 causatio n applies to disparities of the sort mentioned in Green , 391 U.S. at 435, bu t not to disparities in student achievement. The State contends thi s distin ction is appropriate because the defendants have control over th e Green factors, such as student assignment, equality of facilities, an d transp ortation, whereas the defendants do not have control over studen t achievement. The State argues that too many external factors affect studen t achieveme nt to require the State to prove that it did not cause lo w minority achievement.

This argument is not persuasive. As the Supreme Court noted i n Jenkins III , the Greenfactors can also be affe cted by forces outside the defendants' control:

Just as demographic chan ges independent of de jure segregation will affect the racial composition of student assignments, so too will numerous external factors beyond the control of th e KCMSD and the State affect minority student achievement.

515 U.S . at 102 (citation omitted). The task of the court in analyzin g either t ype of disparity is to determine whether it was caused b y defendants' misconduc t or by external factors. The burden of proof rules are simply the framework for making that inquiry.

Th ere is, nevertheless, a meaningful distinction between the Gree n factors and the student achievement factor. Disparities in the Gree n factor s, such as student assignment, inherently define a dual schoo l system, which could n ot exist without such disparities. See Coalition to Save Our Children v. State Bd. of Educ. , 90 F.3d 752, 776 (3d Cir. 1996) ( Greenfactors are pe r se vestiges of de jure segregation). On the other

## -12-

hand, disparity or impairment in student achievement may or may not b e found in a particular case and may or may not be the result of a segregated or dual sy stem. For this reason, the presumption of causation will only be applied to student achievement disparities if the court has alread yspecifically found that student achievement in the district ha s suffere d as a result of the dual system. Thus, in Coalition to Save Ou r Childr en , the district court had not included disparity in studen t achievement as a subject for ancillary ( i.e. , non- Green ) relief in it s remed ial decree. When the defendants later moved for a declaration o f unitary status, the T hird Circuit held that the plaintiffs had the burden of proving that disparities in student achievement were vestiges of de jur e segregation. Id. at 776-77. Accord City of Yonkers , 833 F. Supp. at 222 n.3 (n o initial finding that segregation caused reduction in studen t achievement; plaintiffs bear burden of showing causation).

In the early days of this case, the district court specifically found impairmen t in student achievement in the KCMSD was a result of the dua l school system. In 1984 the district court found:

The Court finds the inferior education indigenous o f the statecompell ed dual school system has lingering effects in th e Kansas City, Missouri School District. 593 F. Supp. at 1492. Again, in 1985, the District Court found:

Segregation has caused a system wide re duction in student achievement in the schools of the KCMSD . . . .

. . . . . . . [The] education process has been further "bog ged down" in the KCMSD by a history o f segregated education. Too often, as
a result, a higher percentage of black students are among the lower achievers.

## -13-

639 F . Supp. at 24, 28. Therefore, the Jenkins Class was entitled to a presu mption that current deficiencies in student achievement were a continuation of the v estige already identified. See Baliles , 829 F.2d at 1311-12 (rejecting ar gument that presumption of causation only applies to Green fac tors, 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 gro unds , 111 F.3d 528, 537-38 (7th Cir. 1997) (in light of lack of evidence about proportion o f achiev ement gap caused by defendants, district court erred in orderin g defendants to close 50% of gap).

The State contends that in Jenkins III the Supreme Court held th e district court's findings of student achievement vestiges in the KCMSD wer e 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 f indings were insufficient to establish liability for the student achieveme nt vestige. To the contrary, the Court specifically contemplated that the reduction in student achievement must be remedied:

Thu s, the proper response by the District Court should hav e bee n to eliminate to the extent practicable the vestiges o f prior d e jure segregation within the KCMSD: a system-wid e re duction in student achievement and the existence of 2 5 racially identifiable schools. . . .

515 U.S. at 90. As the State points out, the Court observed that th e district court had ne ver made findings on the severity of the vestige, or the "i ncremental effect that segregation has had on minority studen t 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 th e same paragraph the Court stated: "Under our pre cedents, the State and the KCM SD are entitled to a rather precise statement of [their] obligation s under a desegregation decree." Id. (quotation omitted). The Court did no t question the

## -14-

existence of the achievement vestige; instead, it ordered that the distric t court clarify the qua ntum 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 revie w 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 o f state-mandated segreg ation 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 causatio n sim plymust dissipate as the de jure system and the school boards wh o produced it recede further into the past."). However, the majority opinio n in Freeman continued to recognize the presumption. The majority opinion acknowl edged that the passage of time does have some probative value , tending to strengthena defendant's case that de jure segregation did not cause current disparities. The majority stated:

As the de ju re violation becomes more remote in time and these demographic changes intervene, it becomes less likel y that a current racial imbalance in a school district is a vestige of the prior de jure system. . . . In light of it s finding that the demographic changes in DeKalb County ar e un related to the prior violation, the District Court wa s correct to entertain the suggestion that DCSS had no duty t o achieve system-wide racial balance in the student population.

Id. at 49 6. At the same time, the Freeman majority reiterated: "Th e 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 re jected the idea that the passage of time could cause the burden to shift b ack 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 theKCMSD and the State to eliminate the vestiges of the de jure dual school system
wa s 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 a

nd 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 ear ly 1990's that the effort was well under way.
-15- 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 causatio n should not be applied to the State because the S tate's obligation has only been to pay for the remedy, not to implement it. We deal with thi s argument infra at pages 16-18.

II

.

Jenkins III reiterated the standard for determining whether a school district has become unitary:

[A]m ong the factors which must inform the soun d dis cretion of the court in ordering partia l withd rawal are the following: [1] whether ther e has been full and satisfactory compliance with the decree in those aspects of the system wher e sup ervision is to be withdrawn; [2] whethe r ret ention of judicial control is necessary o r pra cticable to achieve compliance with the decre e in othe r facets of the school system; and [3 ] whether the school district has demonstrated, t o the public and to the parents and students of th e once disfavored race, its good-faith commitment to th e whole of the court's decree and to thos e provisions of the

## -16- lawand 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 decre e sin ce it was entered, and whether the vestiges of pas t dis crimination ha[ve] been eliminated to the exten t practicable. 515 U.S. at 89 (quotation omitted).

The Court of Appeals reviews the dis trict court's findings as to the existence of vestiges of segregation under the "clearly erroneous " standard. See Locket t 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 diffi cult issue before the district court and before us in this appeal is whether the vestiges of past discrimin ation have been eliminated to the ex tent practicable. Before we reach this issue, we will briefl y comment on whether there has been full and satisfactory compliance with th e decree in those aspec ts where supervision is to be withdrawn, and whether the State has demonstrated to the public, the pa rents, and the students of the once disfavored race a good faith commitment to the whole of the court decree.

Th e Supreme Court observed that the State's role with respect t o quality education programs has been limited to funding, not implementation , of these programs. Jenkins III , 515 U.S. at 101. The district cour t recognized the Suprem e 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 o f crafting the intra-district remedy, the Jenkins Class, the KCMSD, and the State were called upon to submit proposed remedi al 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. , Jenkin s v. Missouri , 672 F. Supp. 400, 404 (W.D. Mo. 1987), aff'd i n relev ant part , 855 F.2d 1295 (8th Cir. 1988), cert. denied in relevan t part , 490 U.S. 1034 ( 1989). Perhaps this established a pattern of either the Je nkins Class or the KCMSD assuming responsibility for proposin g remedial measures, and the State relying upon le gal objections to the plan and ultimately ceasin g any effort to make a contribution toward directing or administering the aspects of the remedy. The State had an opportunity to help shape the rem edy, and perhaps the long history of this litigation would have been different had it accepted the challenge to do more than pa y when ordered to do so. Nevertheless, this pattern having been established , the State has undoubt edly complied with the decrees of the district court by funding the programs that have been ordered.

The State places great emphasis on t he amount of money that has been spent in Kansas City. It must be remembered in looking back on the long historyof this case, however, that the district court found and thi s court affirmed findings that the physical plant of the KCMSD had literally rotted; that the inferior education indigenous o f the state-compelled dual sch ool system has lingering effects in the Kansas City, Missouri Schoo l District; that the general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and cause s 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 o f approximately $500 million, with funds contribut ed roughly equally by the State and the KCMSD. With respect to educational and other programs, the State has spent approximately $950 million, andthe KCMSD has spent about $3 50 million. The extensive constitutional violations have require d extensive expenditures.

## -18- Suffi ce it to say that we are left with some question in our mind s
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 th e Constitution that were the predicate for judicial intervention in the firs t instance." Freeman , 503 U.S. at 491. Justice Souter, in his dissent in Jenkin s III , questioned the State's commitment to complying with th e dis trict court's decree. He quoted the district court's statement tha t "during the course of this lawsuit the Court has not been informed of one affirmative act voluntarily taken by the Executi ve 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 distric t court: "The State, also a constitutional violator, has historicall y opposed the implementation of any program offered to desegregate the KCMSD

.

. . . [T]he State has never offered the Court a viable, even tenable , altern ative and has been extremely antagonistic in its approach t o effecting the desegre gation of the KCMSD." Id. (quoting District Court's Order of April 16, 1993, slip op. at 2). In view of our analysis o f whet her the vestiges of segregation have been remedied to the exten t practicable, we need not further examine this issue.

III.

We now turn to the issue that the Supreme Court stated was the basic task o f the district court, namely deciding whether reduction i n 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, th e State and the KCMSD are "entitled to
a rathe r precise statement of [their] obligations under a desegr egation decree." [ Freeman , 498 U.S.] at 246. Althoug h the Di strict Court has determined that "[s]egregation ha s caused a system wide reduction in achievement in

## -19- the sc hools of the KCMSD," 639 F. Supp., at 24, it never ha s identified the incremental effect that segregation has had on minorit ystudent achievement or the specific goals of th e quality education programs.

515 U.S. at 101.

In the order now before us, the district court directed its att ention to identifying the incremental effect that segre gation has had on minority stud ent achievement, and also to specifying the goals of the qualit y educational programs. It should first be said that the district court in its order of Septembe r 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 opportunitie s and causes poverty. . . . The District stipulated that as of 1977 they had not eliminated all the vestiges of th e prior dual system. The Court finds the inferior education indigenous of the state-compelled dual school system has lingerin g 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. Th e court stated:

Duri ng the 1983-84 year, no school had less than 30% blac k enrollment; 24 schools h owever 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 c ourt also stated that because most of the schools were i n raciallysegregated neighborhoods before 1954, the adoption of th e neighborhood school concept did not substantially change the segregate d school system. Id. Optional attendance zones adopted after Brown v. Boar d of Education , 349 U.S. 294 (1955), did not aid t he 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 i n 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), white s scored about ten NCEs higher than blacks. Armor testified tha t "most, if not virtually all" of this achievement gap in the Kansas City, Missour i School District was the result of socio-economic conditions

. However, Dr. Armor could only identify socio-economic conditions accountin g for about two-thirds of the gap; the other third remained unexplained. 95 9 F. Supp. at 1163.

On the other hand, the expert produced by the KCMSD, Dr. Willia m Trent, testified that after controlling for poverty, family background, an d other factors, there was still a "race effect" that could be due to past segregation. Id. at 1158. The gap existed in 1 986 and 1988, continues to exist now, and has ne ver been eliminated. Dr. Trent concluded that about 4% to 9% of the achievement gap was explained by race. Id. Significantly , the State's expert, D r. Armor, testified that the size of the achievement gap grows larger the longer the children remain in school. Id. at 1159. Moreov er, Dr. Trent testified that teachers' low expectations o f achiev ement in schools with high percentages of minority students als o 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 D aubert . 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 exper t witnesses, the district court pointed out that the State's reliance o n socio-economic factors was inadequate to explain about 35% of the gap, eve n taking the State's expert at his word. Id. at 1 163. The court found that Dr. Trent's analysis showing a "race effect" explaining 4-9% of the gap wa s "reliable and accurately identifies the incremental portion attributable to the pri or de jure discrimination." Id. The court found that th e teacher expectation v ariable explains 2-4% of the gap, id. , and that the teachers' lower expectations were a result of ea rlier de jure segregation. Id. at 1164. The cou rt took the high end of these ranges in reaching the fig ure of 13%. The court also held that the increase in the gap as th e childr en progressed through the KCMSD could also be attributed t o discrimina tion, id. at 1165, and this, together with the gap when th e students entered school, was 26% of the achievement gap. The cour t
conc luded that these figures translated into a mandate to the schoo l district to reduce the achievement gap by 2.6 NCEs. The court ordered tha t this task was to be completed within three years . It concluded that KCMSD has no t currently attained unitary status regarding the quality o f education. Id.

It is ev ident that the district court rejected Dr. Armor's opinio n 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 th e achievement gap by hi s socio-economic theory. The State simply failed to carry its burden, and our discussion could end at this point. But i n addition, the distric t court accepted Dr. Trent's explanation quantifying that part of the achievement gap resulting from race; that was a finding of fact bas ed upon research by a well-qualified expert. Dr. Trent' s 7 testimony provided a rational explanation for

## Theexpert testimony was responsive to the Supreme Court's direction t o 8 

## quantify the achievement gap. It was the only testimony to address this is sue, and came from all parties.
-22- the achievement gap a nd 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 an d staff assignments, transportation, and facilities.

The KCMSD contended that the current racial balance within it s schools was unknown because of the effect of the withdrawal of suburba n students after Jenkin s III . The district court observed that the student assig nment aspect of the remedy in this case had depended primarily o n voluntarytransfers from the suburbs in conjunction with magnet schools, rather than on mandatory reassignment. Id. at 1166. After Jenkins III , many suburban student s left the KCMSD. The district court found that the "ramifi cations of the withdrawal of the 1476 white students cannot b e judg ed at this time." Id. at 1167. The court declined to declare th e KCMSD unitary in this regard until the effects of this change in th e 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 no t
curr entlyengaging in discriminatory student assignment practices, an d therefore there should be no vestige under Pasadena City Board of Educatio n v. Spangler , 427 U.S. 424 (1976).

## -23- Under S pangler and Freeman , school districts that have onc e elimin ated the student assignment vestige are not required to readjus t student assignments to compensate for subsequent imbalances caused b y forces other than intentional segregation. "Onc e 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 n o finding in this case that the KCMSD ever elimina ted 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 decre e used in Spangler

. See 427 U.S. at 435-36. This strategy was a t least partly aborted by the Jenkins III ruling, and the district cour t found that, on the present state of the record, it was impossible to asses s the racial balance in the schools during the process of dismantling th e original remedy. This finding was not clearly erroneous. Accordingly, th e State's invocation of Spangler and Freemanon this point is premature. Se e Vaughns v. Board of Educ. , 758 F.2d 983, 988 (4th Cir. 1985) ("Until a unitary system is cre ated, a school system is not absolved from this duty by reason of demograp hic changes."); Haycraft v. Board of Educ. , 560 F.2d 755, 756 (6th Cir. 1977) ( Spangler not relevant where segregation has neve r been remedied).

The district court found that the transportation factor was s o closel ybound to student assignment that the uncertainty affecting th e student assignment vestige also prevented a finding of unitariness as to transp ortation. 959 F. Supp. at 1168. In Freeman the Supreme Cour t foresaw the possibili ty of such intertwining. "Two or more Green factors may be intertwined or synergistic in their relation, so that a consti tutional violation in one area cannot be eliminated unless th e 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 th e facilities factor, the district court found that certai n 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 fulfille d before relinquishing the ability to enforce compliance with the decree.

In considering the faculty and staff assignments factor, the di strict court rel ied on the testimony of the State's witness Dr. Armor, wh o testified that, while the KCMSD had once complied with the court's orders to bring about racial balance in faculty and staff assignments, th e percentage of elementary schools complying with the balance guidelines had "decrease d steadily" in recent years. Id. at 1168. The court als o
conc luded that it was necessary for the court to retain control ove r faculty appointments in order to maintain flexib ility in other areas, such as reducing expenditu res. Id. Under Freeman , the district court retains discretion to determi ne whether to relinquish jurisdiction on a piecemeal basis. See 503 U.S. at 493. Where the district court has reason to retai n supervision over an area to aid its jurisdictionover unfinished business, Freema n certainly does not require the court to declare partia l unitariness. See id. at 497-98.

We thus conclude that the district c ourt did not err in finding that the achie vement gap vestige had not been remedied to the exten t pra cticable, and that four out of the five Green factors had not bee n 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 th e agreement between the State and the KCMSD. Purs uant to the agreement, the Stat e will be dismissed from this litigation after it pays the KCMS D approximately $320 million over three fiscal years to implemen t 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 change d 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 desegregatio n cases, se e Milliken v. Bradley , 433 U.S. 267, 287 (1977), and "there i s obviously no one plan that will do the job in ev ery case." See Green , 391 U.S. at 439. Instead, the district court, which has "firsthand experience wi th the parties and is best qualified to deal with the 'flinty , intractable realities of day-to-day implementation of constitutiona l

comm ands,'" has broad and flexible equitable powers to fashio n desegre gation remedies. United States v. Paradise , 480 U.S. 149, 18 4 (1987) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ. , 402 U.S. 1, 6 (1971)). "Once a r ight and a violation have been shown, the scope of a distric t court's equitable powers to remedy past wrongs is broad, fo r breadth and flexibility are inherent in equitable remedies." Swann , 402 U.S. at 15; see also Little Rock Sch. Dist. v. P ulaski County Special Sch. Dist

. , 839 F.2d 1296, 1314 (8th Cir.) (the district court has "broa d remedial authority in dismantling segregation"), cert. denied , 488 U.S. 86 9 (1988). Because the district court possesses such broad discretion, "[o]u r standard of review of the district court's actions . . . is restricted." Jenkins , 855 F.2d at 1299. We must "give great deference to a distric t court 's exercise of its broad equitable powers in crafting a remedy i n school desegregation cases." Jenkins v. Missouri , 965 F.2d 654, 656 (8th Cir. 1992).

The district court retains this broa d equitable authority throughout the entire desegregat ion 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 "inheren t 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 cour t had discretion "to order an incremental or partial withdrawal of its supe rvision and control"). In

an earlier Jenkins opinion, we described the district court's broad an d 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." Booke r v. Special School D ist. No. 1 , 585 F.2d 347, 352 (8th Cir. 1978), cert

. den ied , 443 U.S. 915 (1979). School desegregation plans ar e particularlylikely to need adjustment. As the Supreme Court ha s observed regarding such cases: "[E]quity has bee n char acterized by a practical flexibility in shaping it s remedies and by a facility for adjusting and reconc iling public and private needs." Milliken [v. Bradley , 433 U.S. 267, 28 8 (1977)] (quoting Brown v. Board of Educ. , 349 U.S. 294, 30 0 (1955)). . . .

We hav e said that the basic responsibility fo r determining whether and to what extent an injunction should be modi fied "rests primarily on the shoulders of the distric t court that issued the in junction 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 th e agreement is limited, and we may reverse that order only if we conclud e 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 workabl e). To the extent that the court based its order on finding s of fact, those findings "may not be disturbed unless clearl y 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, ar e 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 du ty to the constitutional victims beyond the duty to pay th e specified sums of money. The constitutional victims are not a party t o this agre ement. We must bear in mind, however, the Supreme Court' s directive in Jenkins III that the district court "should consider that the Stat e's role with respect to the quality education programs has bee n 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 withdrawa l in ph ases. See id. at 88, 101. With the Supreme Court's directives i n mind, we will now turn to the considerations supporting approval of th e agreement.

The basic foundation for the district court's approval of th e 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 co urt's findings regarding unitary status both as to educationa l achievement and as to the Green factors.

The court properly recognized that the Supreme Court's standard for unit arystatus does not require total elimination of the vestiges o f discrimination, including the achievement gap, but focuses on whether thos e vestiges h ave "been eliminated to the extent practicable." Id. at 8 9 (quoting Freeman , 503 U.S. at 492). Perhaps the district judge who ha s lived with this case for nearly twenty years was making an optimisti c prediction about the KCMSD's progress toward des egregation in the next two to three years. On the other hand, however, we must affirm if the distric t court's findings support its conclusion that a period of two to three year s wi ll allow the remaining vestiges to be eliminated to the exten t practicable.

## -28- Th e district court relied primarily on the testimony of Dr. Joh n 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 Charlotte

Mecklenburg were subject to court desegregation orders during Dr. Murphy's tenure. Dr. Murphy was asked to develop a transition plan to focus o n improving the quality of learning in the KCMSD w ith 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 th e agreement would provi de the KCMSD with approximately $6,000 per pupil per yea r, an amount which would be sufficient not only to offer a qualit y education, but also t o 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 Geor ge's County while spending $5,405 per pupil. Wh ile it may be true that Dr. Murphy's testimony dealt with one-third of the district he supervised in the 1992-93 school year an d with costs for a diff erent time and locality, the weight of his testimony

was to be assessed by the district court. His testimony was clear that th e level of funding provided by the agreement would be sufficient t o implement the strategies and improvements that he believed were necessary in the KCMSD, similar to those in Charlotte-Meck lenburg 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 admin istration and staff to do a better job, even while resources wer e being tightened.

Dr. Michael Stolee, an experienced educator and former director o f the Florida School Desegregation Consulting Center, provided evidenc e rega rding student assignments. He testified that the KCMSD could b e reorganized within a two-year period at a cost paid by anticipated revenue s in a manner to eliminate racial isolation to the extent practicable.

## -29- The dist rict court ordered the KCMSD to reduce the achievement ga p 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 attaine d unitar ystatus within the next three years, the court nevertheles s 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 tw o to three years was sufficient to eliminate some of the remaining vestige s, 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 with in 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 resp ect to the remaining Green factors, as we noted above, the district court made factual findings that unitariness could be accomplishe d in these areas withintwo to three years. We have reviewed the record as

a whole and conclude that these findings are not clearly erroneous. To th e extent there are conflicts in the evidence, resolution of such conflicts is for the district court.

In ligh t of the evidence before the district court, we cannot hol d 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, rathe r than to make our own findings, and we do not find a basis for reversa l under this standard.

C.

It is also significant that the time frame for terminating stat e funding contemplated by the agreement is similar to that envisioned by the district court several

## We must f irst pause to say that the State's funding-only role has come abou t 9 

## through th e State's conscious policy choices to so limit its involvement. We do no t 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 p arties to submit plans for terminating funding b ased 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 smal l differ ence between the timing of terminating State funding under th e agreement and the time frame previously contemplated by the district court

. Resolv ing issues such as extent and degree is a core function of th e district court, and it has considerable discretion in this task. We canno t 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 desegregatio n remedies in this case as being limited to only providing funding. Thi s issue merits further discussion. 9

Certainly, the Missouri Constitution imposes broader responsibi lities upon the S tate than simply providing financing. It provides that th e General Assembly shal l establish and maintain free public schools for the instructio n of all children in the State, and that the supervision o f ins truction in the public schools shall be vested in a state board o f education. Mo. Const. art. IX, §§ 1(a), 2(a).

The State bore a duty under the federal Constitution to elimina te the dual school system cr eated 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 vest iges of such system to the extent practicable, a far broader responsibility. Despite thi s const itutional responsibility, however, the State's only action beside s funding has essentially been limited to repeated ly 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 evolve d into

one of funding only. The agreement essentially acknowledges the present stat e of affairs, and the KCMSD, by entering into the agreement, ha s expressed its acceptance of this limited role. 10

Funding for the KCMSD is unquestionably critical to the continuin g 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 Missour i v. Jenkins , 495 U.S. 33, 52 (1990). We also note that the Missouri General Assembly, in its most recent session, passed a hous e joint resolution submitting for state-wide voter consideration a constitutional amendment to allow the KCMSD to maintain the levy at it s present level with district voter approval, the reby providing a means for continued financial s upport of the KCMSD independent of court order after the KCMSD is no longe r under court supervision. See 1997 Mo. Legis. Serv. H.J.R. No. 9 (Vernon's).

Sufficien t funding is absolutely essential to the school district's

con tinued viability. All parties agree that the loss of the level o f funding under the cur rent 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 i n 11 

## opposition to the agreement. The Class analogizes the agreement to a contract an d contends that it cannot be bound by a contract to which it is not a party. Regardless of the a greement, the district court's order is not akin to a contract. The Clas s presented its objections to the district court, those objections were overruled, and the Cla ss is now bound by that order to the same extent as any other court order in thi s case.
The Class also argues that the district court erred in approving the agreemen t because: (1) the court was not presented with a justiciable controversy; (2) the order is invalidas an advisory opinion; and (3) the agreement cannot be viewed as an alternative remedy plan because the State did not seek declaratory relief. Thes e arguments must fail based on our holding that the court's approval of the agreement was
a n 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 Jenki ns Class argues that the State cannot be dismissed because it is both a constitu tional violator and a defendant subject to joint and several liability. The district court has concluded that the State' s liabil ityas constitutional violator will be satisfied by the payment s called for in the settlement. It has amended the remedy with regard t o joint and several liability. Although the agreement contemplates th e 11 dismissal of the State in the future, the KCMSD will nevertheless remain sub ject to court supervision as a constitutional violator liable to th e constitutional victims. The KCMSD has not sough t a declaration of unitary status wi th respect to any part of its operations. The effect of th e agreement is that the KCMSD now bears sole respo nsibility for implementing the desegregation remedy and obtaining the funding necessary to do so.

## -33- In the district court's order approving the settlement, the cour t expressed concerns about the KCMSD's management, including its top-heavy administration. 959 F. Supp. at 1175-77. The c ourt acknowledged that the KCMSD has made signif icant progress in the face of substantial obstacles, not the least of whic h has been the ever-shifting leadership in the KCMSD administration. Id. at 1173. There have been ten distric t superintendents in the last nine years. Id. The district court made plai n that it was simply making observations, and not findings of fact, and that its observations play ed no role in its decision to approve the agreement. We find instructive, however, the court's identi fication of areas in which the district's performance has been "dismal at b est." Id. These include: (1) th e KCMSD still lacks a comprehensive integrated educational an d instr uctional plan; (2) the KCMSD's fragmented efforts to implemen t meaningful staff development measures have fallen far short of the mark; (3) on going administrative instability has plagued the KCMSD for years , resulting in a lack of accountability for deficiencies; (4) the KCMSD stil l lacks a security plan; and (5) the KCMSD is unab le to produce a budget for

a particular fiscal year and reconcile it with actual expenditures fo r specific line items. Id. at 1173-74.

Th e district judge making these observations, Judge Russell Clark , has p resided over this litigation from its inception in 1977 until hi s 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 ha s
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 operationdescribed 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 distri ct court to closely supervise and monitor the KCMSD management

. Thus, in entering into this agreement, the KCMSD may well have brought upo n itself a c ircumstance 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 un til the vestiges of segregation have been eliminated to the extent practicable.

The district court stated that the K CMSD's administration was not up to the task of eliminating the remaining vestiges within the short tim e required by the court. It expressed the view that a strong hand wit h educational expertise and no "vested interest" w as essential to accomplish the diffi cult goals in this transitory period. Id. at 1178. We hav e 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 maste r to oversee the KCMSD and urg ed that time was of the essence. We are in full agreement that o n remand the district court should promptly consider the issue of appropriat e supervision over the district. The deficiencies outlined by the district

cou rt which we have discussed above and achievement of the goal o f attai ning unitary status are difficult and complex. We agree with th e district court that this is attainable, but it will require skillful and complex administrativ e and management effort. We leave to the discretion of the district court how best to exercise its oversight. Time is short, and the district cour t must do what is necessary to assure that the goals are achieved.

We affirm in all respects the distri ct court's statements concerning the trans ition leading to return of the district to local control. Th e go al is to eliminate, to the extent practicable, the vestiges o f discrimination in this school district, and the district court should spar e no effort in ensuring that this goal is reached.

Many asp ects of the agreement and its effects are troublesome, an d

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 can not say that the district court clearly erred in its factual findings regarding the agreement, nor that it abused its discretio n in approving the agreement and, in effect, modifying the earlier remed y 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.