___________

No. 96-2809

___________
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 - Appellants * Appeals from the United States * District Court for the American Federation of * Western District of Missouri. Teachers, Local 691, * * Intervenor - 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 Hershend, * 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 Missouri State * Board of Education; Terry M. * Riley, Member of the Board of * Directors; Sharon M. Williams, * Member of the Missouri State * Board of Education; Lance * Loewenstein, Member of the Board*

### -2-

of Directors; Betty Preston, * Member of the Missouri State * Board of Education; Russell * Thompson, Member of the * Missouri State Board of * Education; Jacquelline * Wellington, Member of the * Missouri State Board of * Education; Marilyn Simmons, * Member of the Board of * Directors; Sandy Aguire Mayer, * Member of the Board of * Directors; School District of * Kansas City; Dr. Henry D. * Williams, Superintendent * thereof; 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; John W. Still, * Member of the Board of * Directors, * * Defendants - Appellees *

___________ No. 96-2918

___________ 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, *

### -3- * Intervenor - 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 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 *

### -4-

Directors; Dr. Julia H. Hill, * Member of the Board of * Directors; John W. Still, * Member of the Board of * Directors, * * Defendants - Appellees *

___________ No. 96-3215

___________ 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 - 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 Missouri State *

### -5-

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. *

___________ No. 96-3568

___________ Chinyere Jenkins, by her next * friend, Joi Jenkins; Nicholas * Paul Winchester-Rabelier, by * his next friend, Paula * Winchester; Margo Vaughn-Bey, *

### -6-

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 - 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 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 *

### The Honorable Russell G. Clark, Senior Judge, United States 1 

### District Court for the Western District of Missouri.
-7- 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. *

___________ Submitted: December 9, 1996 Filed: January 10, 1997

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

___________ JOHN R. GIBSON, Circuit Judge.

The State of Missouri appeals from orders of the district court 1 establishinga remedy plan and budget for the 1996-97 school year in the ongoin gKansas City, Missouri School District desegregation case. Th e State also appeals from the district court's order phasing out the Missour i Cityvoluntary interdistrict transfer program. The Jenkins Class crossappeals from the orde r phasing out the Missouri City program and from the order

### The orders on appeal are the July 15, 199 6 order with respect 2 

### to the 1996-97 budget; the order of August 30, 1996, denying stay pending appeal; and the March 7, 1996 order, disapproving the use of funds for the purpose of recruiting resident nonminorities and establ ishinga phaseout plan for the Missouri City Voluntar y Interdistrict Transfer Plan. The Jenkins Class moved to alter or amend this order, and the district court denied the motion on May 31, 1996.
-8- pr ohibitinguse of desegregation funds for marketing and recruitmen t efforts directed solely at nonminority students living within the KCMSD wh o attend private and parochial schools. We affirm the district court's orde r with respect to the budget for the 1996-97 school year, remand the Missour i CityProgram issue for further consideration, and reverse and remand the orde r relating to recruiting resident nonminorities who attend privat e schools. 2

In Missouri v. Jenkins , 115 S. Ct. 2038 (1995) ( Jenkins III ), th e Court reversed an order funding salary increases for KCMSD personnel, whic h the di strict court had imposed to increase KCMSD's desegregativ e attractiv eness. Id. at 2055. The Court also reversed an order fundin g quality education programs because the order was based on findings that th e student achievement levels were at or below national norms based on test

scores. The Supreme Court remanded for reconsideration of the qualit y educationorder under the three-part test of Freeman v. Pitts , 503 U.S

. 467, 491 (1992). It further instructed that the district court "bear in mind tha t its end purpose is not only `to remedy the violation' to th e extent practicable, but also `to restore state and local authorities to th e control o f a school system that is operating in compliance with th e Constitution.'" Id . at 2056 (quoting Freeman , 503 U.S. at 489).

After the Supreme Court's remand, the State moved for an orde r declaring the KCMSD unitary and relinquishing ju risdiction over the entire case. Moreover, on M ay 21, 1996, the State and the KCMSD entered into an agreement that the State would continue to make

### -9-

payments over the next three years, with its liability to end at that time , subject to court approval. The Jenkins class was not a party to th e agr eement. In light of the magnitude of the issues raised by th e unitar iness motion and the settlement agreement, the district court se t both matters for a hearing to commence on January 13, 1997.

In the interim a budget for the upcoming 1996-97 school year wa s established. The parties were able for the most part to agree on a budget

as an i nterim measure. The parties agreed to a 1996-97 remedy plan an d budget that reduced the KCMSD budget to $35 million below the precedin g year, subject to a list of items on which the Je nkins Class disagreed with the oth er parties regarding the necessity of expenditures. That lis t included three of the budget items at issue in this appeal: the fourth

round budget cuts, the extended day program, and the permanent substitutes

. The pa rties agreed that although there would have to be a hearing t o
reso lve the disputed budget issues, the weighty issues raised by th e Supre me Court opinion would be reserved for later resolution. I n particular, the parties agreed:

Certain parties contend that the State and the KCMSD have a continuing obligation to eliminate the remaining effects of de jure segregation to the extent practicable. The Stat e den ies that there are such remaining effects. All partie s agree that they will not present any evidence at the June 1996 hearingon this issue, that no findings will be requested o n this issue, that the Cou rt need not enter any findings on this iss ue for the purpose of resolving the disputes among th e par ties or ordering implementation of any desegregatio n remedies proposed by any of the parties for the 1996-97 school yea r, and that no party will challenge any remedy componen t currentlyrequested by any party and ordered by the Court for the 1996-97 school year on that basis.

The d istrict court generally approved this stipulation, but th e court disapproved the agreement to reserve considerati on of the Missouri City transfer program and the expenditure of funds foradvertising aimed at nonminority private and parochial school

### -10-

stu dents within the KCMSD. The court found that it was in the bes t interests of all the partie s to resolve those two issues sooner, rather than later. Order of March 7, 1996, slip op. at 2. Therefore, th e court did not consider those two issues to be subject to th e Stipulation.

In co nsidering the Missouri City transfer program, the distric t court concluded that the pr ogram was a type of interdistrict relief not permitted by the Supreme Co urt's reasoning in Jenkins III . Slip op. at 3. However, the district court found it necessary andequitable to take into account the interests of the students who had volunteered to be a part of the transfer program and whose educations would be disrupted by an abrupt termination of the program. Id. at 4-5. The court held:

Balancing the interests of the participants with those of the State, the Court finds that equity requires that the present participants in the program be allowed to remain with present State funding per pupil until they graduate the eighth grade or voluntarily leave the program. The Court believes thi s process of winding down the Missouri City program reso lves the dif ficulties of this situation in a reasonable equitabl e manner.

Id. at 5.

The court next considered the permissib ility of using desegregation fund s for advertising aimed at attracting nonminority students wh o reside in the KCMSD but attend private or parochial sc hools. The court held: "T he State is correct that Jenkins III forecloses the use o f desegregationfunds for recruitment efforts where the sole purpose o f the particular recruitment project is aimed at encouraging residen t nonminorities currently in private or parochial school s to enroll in the KCMSD." Id. at 5. The court held, however, that the recruitment an d mark etingdepartment of the KCMSD still had a legitimate function i n encouraging voluntary transfer of students

### -11-

within the KCMSD itself to magnet schools. Id. at 6-7. To the extent that this sort of advertisi ng reaches nonminority private and parochial students incidentally, it is of no legal import. Id. at 7. The court therefore approved the proposed budget item for the recruiting an d marketing department, but o rdered that the department should not direct any efforts solely at recru iting nonminority students who reside in the KCMSD but attend private schools. Id. at 7-8. The court also state d that it considered the State to have waived any objection to this item for the 1996-97 school yearby the terms of the Stipulation. Id. at 7.

In a later order, the district court reached the items that ha d been reserved for its consideration by the terms of the Stipulation

. The court considered the Jenkins Class's proposal to r estore funding for the ext ended day program, less $1 million the Jenkins Class estimate d the KCMSD could collect by charging fees for enrollment in the program for children who do not qua lify for free or reduced price lunch. Order of July 15, 1996, slip op. at 8. The court ruled that the extended day program should be preserved . The court explicitly based its holding on the state of the record before it, stating:

Plaint iffs presented substantial evidence in support of th e current Extended Day Program. The KCMSD does not dispute the sincerity or accuracy of the testimony elicited by pla intiffs. . . . The Court was presented no evidence that the Extended Da yProgram as a whole has become ineffective or is a n improper component of a desegregation remedy.

Id. at 9. The court reject ed the idea of charging fees for the program based on financial need; since the program was intended to remedy constitutional violations suffered on account of race, not on account of financial status, the Jenki ns Class's proposal would result in charging some victims for a remedy to which they were entitled. Id. at 9-10.

### Th e schools were Trailwoods Elementary, Knotts Elementary , 3 

### No rthRock Creek/Korte, J.A. Rogers Middle School, Kansas Cit y Middle School for the Performi ng Arts, the Foreign Language Middle School, and East High School.
-12- Next, the court considered the Jenkins Class's objections to th e four th-roundbudget cuts. KCMSD had proposed budget cuts in layers , withthe first three rounds of cuts being the responsibility of th e administration at the affec ted schools. The final, or fourth, round of budget cuts was imposed by the KCMSD administration, in some cases over the protest of the school principals. Again, the court based it s decision on the testimony before it. Principals of some of the affected schools testified that the fourth-round c uts would damage the integrity

3 of their schools' magnet themes. Id. at 11. Therefore, the cour t orde redthe fourth-round budget cuts to be reinstated at those seve n schools. Id. Not all principals were called to testi fy. Consequently, the cou rt was unable to make determinations about the advisability o f the fourth-round budget cuts at the schools whose principals did no t testify, and directed the Desegregation Monitoring Com mittee to evaluate whether the cuts should be made at those schools. Id. at 11-12. The Jenkins Class also proposed that the KCMSD be required t o maintain permanent substitutes at each of the district's schools. The court found that permanent substitutes were not generally necessar y
ex cept in the foreign language magnets. These schools depend o n imm ersionin the foreign language, which entails teaching substantiv e courses in the foreign language. Because of the difficulty in finding substitutes qualified to conduct classes in the various languages, the court found it appropriate that permanent substitutes be retained at the language magnets. Id. at 13.

### -13- I.

A.

The State attacks the district court's reinstatement of the extend ed day program, the fourth-round budget cuts in the seven schools, and the permanent substitutes in the foreign language magnets. The Stat e contends that these expenditures violate the command of Jenkins III to consider the interest in local autonomy and to limit t he aim of remedial programs to restoring the victims of de juresegregati on to the position theywould have occupied absent the constitutional violation. Thes e argumen ts depend on antecedent assumptions or findings about wha t vestiges of injury remain in the KCMSD. The State stipulated away its right to make this sort of argument at this stage of the litigation in its agreement limiting the issues to be decided in connection with the 1996-97 budget:

Certain parties contend that the State and the KC MSD have a continuing obligation to eliminate the remaining effects of de jure segregation to the extent practicable. The Stat e denies that there are such remaining effects. All partie s agree that they will not present any evidence at the J une 1996 hearing on this issue, that no findings will be requested on this issue, that the Court need not enter any findings on this issue for the purpose of resolving the disputes among th e par ties or ordering implementation of any desegregatio n remedies proposed by any of the parties for the 1996-9 7 school year . . . .

The effect o f the Stipulation was before us on the motion to stay. We there held the issue raised by the State to be foreclosed by th e Stipulation. Order of October 23, 1996. We have give n further detailed study to the terms of the Stipulation and reach the same conclusion as we did before.

Byarguin g that Jenkins III requires the district court to tak e action without regard to the existence and extent of

### -14-

vestiges of segregation, the State shows an imperfect understanding of the Jenki ns III holding. The reasoning in Jenkins III depends on a framework of three factors that must be balanced against each other in crafting a desegregation remedy under Milliken v. Brad ley , 433 U.S. 267, 280 -81 (1977) ( Milliken II ): (1) the nature of the remedy must b e determined by the nature and scope of the constitutional violation; (2) the decree must remedy the unconstitutional condition by restoring the victims as nearly as possible to the position they would have occupied had the violation never taken place; and (3) the decree must take into account the importance of state and local autonomy. 1 15 S. Ct. at 2049. The Supreme Court emphasized that remedial orders sho uld not be crafted taking the first factor into consideration without adequate regard for th e second two. Id. This certainly does not lead to the conclusio n that such orders can be crafted only by reference to the third factor, witho ut consideration of the first two factors. Yet, the State woul d have us assess the propriet y of the three disputed programs in light of Jenkins III when the State has stipulated that the court shall make no findings with regard to the second factor, whether the re exists vestiges of the unconstitutional condition. The Supreme Court ordered a balancing process; the State asks us to carry out that process with only one side of the scale. This is impossible, and would be erroneous under Jenkins III

.
Despi te its Stipulation, the State argues that the court erred i n orderingrelief that benefits students who are not victims o f segregation. This assumes the very fact that the Stat e stipulated would not be resolved--whether there exist to this day vestiges or after

ef fects of the unconstitutional system that still affect studen t achievem ent levels in the KCMSD. The Supreme Court mentioned tha t students in kindergarten through grade 7 have always attended AAA schools, and that the older students have received remedial educatio n programs f or up to seven years. Jenkins III , 115 S. Ct. at 2056

. However, the

### -15-

Sup reme Court did not say that there were no remaining victims of th e after-effects of segregation. Rather, the Court remanded for furthe r proceedings. "But these ar e questions that the Court rightly leaves to be answered on remand." Id

. at 2061. (O'Connor, J., concurring). The State's inference that the Supreme Court considered the State's wor k done and the KCMSD unitary is grossly premature, as we ll as inconsistent with the Stipulation, which acknowledged this to be a disputed question. Until we know the answer to that question, we certainl y cannot say which stude nts are affected by vestiges of segregation and in what way

. Con sequently, the State's contention that the district court's order s benefited non-victims begs the question by assuming that we know who the remaining victims are.

In light of the Stipulation which the State entered and the distri ct
cou rt approved, we can only view the 1996-97 budget as an interi m measure. Clearly, the matt er had to be resolved before the school year and yet, a full adjudication of the constitutional que stions inherent in the m atter would require hearings and findings which could not b e achieved before the school year began. In response tothis dilemma, the pa rties entered into the Stipulation reserving the constitutiona l questions for a later day. With this compromise befor e it, the district court acted properly in judging the propriety of the disputed programs by criteria that remained available after the Stipulation. In the case of the fourth-round budget cuts and the permanent subs titutes, the court decided that doing away with the particular programs w ould undermine the magnet th emes. In the case of the extended day program, it decide d simplytha t the program was beneficial to the students. The Suprem e Court certainly did not disapprove either of the idea of magnet schools,

see Je nkins III , 115 S. Ct. at 2051 ("We previously have approved o f intradistrict desegregation remedies involving magnet schools"), or of improving the quality of education offered in the district, see id. at 2050 ("Thus, the proper response by the

### -16-

District Court should have been to eliminate to the extent practicable the v estiges of prior de jure segregation within the KCMSD: a system

wide reduction in student achievement and the existence of 25 racially identi fiable schools. . . ."). The Supreme Court only held that th e appropriateness of orders pursuing those goals must be ascertained by balancing all three Milliken II factors, and the State stipulated that the di strict court would not determine one of those factors i n adjudicating the propriety of the three programs in question.

In su m, the State's arguments attacking the approval of the thre e disp utedprograms for the 1996-97 year depend on a reasoning proces s that the district court could not complete because of the parties ' Stipulation. The district court appropriately considered the propriety of t hose programs as an interim measure, as was contemplated by th e parties' agreement. We therefore affirm the district court's orde r regarding the extended day program, permanent substitu tes in the foreign language magnets, and the restoration of the fourth-ro und budget cuts in the seven schools.

B.

The S tate argues that the record evidence showed the extended da y programis "just babysitting," and that therefore its only possibl e purpose is to attract suburban students. While the ex tended day program undeniabl yserves a child care function, there was a great deal o f testimony before the court that the program also serves an educational purpose. We have reviewed the testimony the State cites, and i t certainly does not compel the conclusion that the extended day program only exists to attract suburban students.

### -17- C.

The State also argues that the district court's order of July 15 , 1996 contravenes Jenkins III , and that the district co urt's authority is simplyto execute the mandate of Jenkins III . It argues that by ordering the three disputed programs the district court has refused to follow the Supreme Court's mandate that the process of returning KCMSD to local control begin in earnest. The St ate argues that Jenkins III requires restoration of loca l

con trol at the earliest practical date. The argument is based on th e State's re ading of Jenkins III that "the District Court must bear i n mind that its end purpose is . . . to restore state and loca l authorities to . . . control," 115 S. Ct. at 2056 (quotation omitted). The Sta te argues that the Supreme Court emphasized the vital nationa l tradition of local autonomy of school districts and ordered that n o additional programs be impo sed that unwarrantably postpone the day when KCMSD will be able to operate on its own. Id. at 2056.

The shortcoming of the State's argument is that it edits th e language of the Supreme Court in a manner that present s less than a full andfair reading of the Court's holding. The Court in Jenkins II I certainlyrefers to the restoration of local control on severa l

occas ions, see , e.g. , id. at 2054, 2056, and the Court emphasizes th e goal of returning the school district to local control, but the othe r part of the equation is that the district court must consider whethe r the previously segregated d istrict has achieved partial unitary status. Jen kins III points out that the State had not sought a declaration o f partial unitary status with respect to quality education programs. Id. at 2055. In rejecting arguments relating to whether national norm s couldbe considered in evaluating the success of educational program s the Supreme Court stated:

### -18- But this clearly is not the appropriate test to b e applied in deciding whether a previously segregated district has achieved partially unit ary status. See Freeman , 503 U.S. at 491 ; Dowell , 498 U.S. at 249-50. The basic task of th e District Court is to decide whether the reduction i n achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicabl e. . . .
In re considering this order, the District Court shoul d apply our three-part test from Freeman v. Pitts , supra , 503 U. S., at 491, 112 S. Ct., at 1445-1446.

Id. The three-part test for partial unitariness was stated in Freeman v. Pitts , 503 U.S. at 491:

A court's discretion to order the incremen tal withdrawal of its supervision in a school desegregation case must b e ex ercisedin a manner consistent with the purposes an d objectives of its equitable power. Among the factors whic h must inform the sound discretion of the court in orderin g partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in thos e aspects of the system where supervision is to be withdrawn ; whether retention of judicial control is necessary o r practi cable to achieve compliance with the decree in othe r facets of the school system; and whether the school district has demonstrated, to the public and to the parents an d studen ts of the once disfavored race, its good-fait h comm itment to the whole of the court's decree and to thos e provisions of the law and the Constitution that were th e predicate for judicial intervention in the first instance.

Jenkins III concludes:

On remand, the District Court must bear inmind that its end purp ose is not only "to remedy the violation" to th e exte nt practicable, but also "to restore state and loca l authorities to the control of a school system that i s operating in compliance wit h the Constitution." Freeman , 503 U.S. at 489.

115 S. Ct. at 2056.

The last passage above demonstrates that the State, in

### -19-

stressingthe return to local control, has completely ignored th e Court's direction to engage in the inquiry required by Freeman v. Pitts , to ascertain whether unitary status has been achieved, whether th e results of segregation have been remedied to the exten t practicable, and whether a school system operating in compliance with the Constitutio n may be restored to state and local control.

We thus r eject the argument the State makes that Jenkins III ha s mandated determination of the issues now before us. The Supreme Court has made clear in Jenkins I II that the State did not seek a declaration of partial unitary status with respect to the quality educatio n prog rams, 115 S. Ct. at 2055, but rather that the case now must b e returned to the district court to make that inquiry.

In view of t he parties' stipulation and the Supreme Court's remand to the district court to consider the question of unitary status under Freeman , it is not necessary that we reach the merits of the arguments advanced by the State.

II.

Th e Jenkins Class cross-appeals, arguing that the district cour t erred i n prohibiting the use of desegregation funds for marketing an d recruitment efforts directed solely at drawing private school students living within the KCMSD boundaries. In its orders of March 7, 1996 , slip op. at 5-7, and May 31, 1996, slip op. at 2-3, the district court rul edthat the desegregative attractiveness discussion in Jenkins II I forbade use of desegregation funding to recruit nonminority privat e school students living with in the KCMSD, as well as to recruit suburban nonminorities. The distric t court reasoned that "private and parochial schools are essentially districts within themselves," slip op. at 6, and that therefore spending desegregation money to

### -20-

recruit students from those schools was based upon the sam e impermissible interdistrict goals as recruiting students from suburban public school districts. Id.

The Je nkins Class argues that the district court drew incorrec t inferences from Jenkins III in considering private schools to b e equivalent to other public school districts. The Class argues that the

reasonthe Supreme Court disapproved of interdistrict relief was t o
avo id"burdening other public school districts which were no t constitutional violators, not [to protect] independent privat e enti ties." The Class also points out that the district court rule d before these issues had been thoroughly briefed.

We first must concede that the record with respect to this issue may have been most generally developed with respect to the difference s between private and parochial schools and public schools, and we hav e questions with respect to whether they are "essentiall y districts within themselves" as found by the district court. We believe, however, that this issue can be addressed again with a more completerecord on remand.

We con clude that the legal underpinning in the district court' s analy sis runs contrary to Jenkins III

. Jenkins III discussed at som e length the difference between intradistrict violations and interdistrict violations, and the remedies that may be appropriate for each. 115 S. Ct. at 2049-54. It conclud ed that the interdistrict goal of attracting students from surrounding districts was an interdistrict remedy for an intradistrict violation. Id. at 2052.

The fo llowing passages from Jenkins III demonstrate the basis fo r the Court's ruling:

### Jenkins III also made the following statements: 4


### Thepurpose of desegregative attractiveness has bee n not only to remedy the system-wide reduction in student achievement, but also to attract nonminority students no t presently enrolled in the KCMSD. . . .

. . . The District Court's remedial plan in this case , however, is not designed solely to redistribute th e students within the KCMSD in o rder to eliminate racially identi fiable schools within the KCMSD. Instead, it s purpose is to attract nonminority students from outside theKCMSD schools. But this inter district goal is beyond th e scope of the intra district violation identified by the District Court. In effect, the District Court ha s devis eda remedy to accomplish indirectly what i t admittedlylacks the remedial authority to mandat e directly: the interdistrict transfer of students. 639 F. Supp. at 38 ("`[B]ecause of restrictions on thi s Court's remedial powers in restructuring the operations of local and state government entities,' any mandator y pla nwhich would go beyond the boundary lines of KCMS D go es far beyond the nature and extent of th e constitutional violation [that] this Court found existed").

-21-

Wha t we meant in Milliken I [ Milliken v. Bradley , 41 8 U.S. 717 (1974)] by an interdistrict violation was a v iolation that caused segregation between adjoining districts.

115 S. Ct. at 2052. In Jenkins III , the Supreme Court said that nothing in Milliken I suggested tha t the district court could have required the State of Michigan to implement a magnet program designed to achieve the same interdistrict transfer of students that Milliken I had held to be beyond its remedial authority. 115 S. Ct. at 2052. Jenkins II I continued:

Here, the District Court has done just that: created a magnet district of the KCMSD in order to serve the inter distr ict goal of attracting nonminority s tudents from the surrounding SSD's and red istributing them within the KCMSD. The Distric t Cou rt's pursuit of "desegregative attractiveness" is beyon d the scope of its broad remedial authority. 4

### In M illiken I we determined that a desegregatio n

remedythat would require mandatory interdistric t reassignment of students throughout the Detroi t metropolitanarea was an impermissible interdistric t response to the intradistrict violation identified. 115 S. Ct. at 2051 (emphasis in last paragraph added).
-22- Id. at 2052 (second emphasis added). The Supreme Court then discussed the issue of white flight and concluded:

The record here does not support the District Court's reliance on "white flight" as a justification for a permissibl e expansion of its intradistr ict remedial authority through its pursuit of desegregative attractiveness.

115 S. Ct. at 2053.

This languag e from Jenkins III indicates that the remedy cannot be designed to recruit students from adjoining districts to the Kansas City schools in an effort to remedy intradistrict violation s. We do not read Jenki ns III as restricting the KCMSD's efforts to attract back to it s schools those residents of the district who now attend private an d parochial schools. As the Jenkins Class points out, t he funding for the schools under the state procedures is based upon enrollment, and a n increa se in enrollment is in the best interest of KCMSD. As th e district court discussed, efforts directed at KCMSD st udents may have an impact on KCMSD resident students in parochial and private schools

. Slip op. at 7. As pointed out by Justice O'Connor, such effects are of

no conseq uence. See Jenkins III , 115 S. Ct. at 2060 (O'Connor, J. , concurring).

Th us, we conclude that the district court's analysis rested on a questionable reading of Jenkins III , and we remand this

### -23-

issue for further consideration.

III.

The S tate argues that the district court abused its discretion i n ordering continued funding of the Missouri City Interdistrict Transfer Programfor eight additional years, because it is an impermissibl e interdistrict remedy in this intradistrict case. The Jenkins Clas s argues tha t the district court erred in ordering the phaseout of th e program. Only thirteen students participate in this program. No other suburban schools have accepted minority students from KCMSD.

Th e district court's order of March 7, 1996, recognizes that th e Missouri City Program is an interdistrict program based upon a stipulation, and that this stipulation can be modified by changin g circums tances, such as those provided by the Supreme Court opinion i n Jenkins III . Slip op. at 4 (citing Rufo v. Inmates of Suffolk Count y Jail , 502 U.S. 367, 390 (1992)). The district court, however, looked to the limits of this responsibility to determine whether the propose d modification is suitably tailored to the changing circumstances. Slip op. at 4-5. In doing so, it rejected the State's argument that th e program should be discontinued after one year , but looked to the public interest in seeing the State honor its agreements made on the public's behalf. The district court therefore ordered that the presen t participants in the program be allowed to remain with present stat e fundinguntil they graduate eighth grade or voluntarily leave th e program.

The S tate's argument that the court lacks authority to order suc h

a pro gram is somewhat weakened by its admission in oral argument tha t the dis trict court should discontinue the program with reasonabl e promptness, at most the com pletion of the school year in question. The State's position at least approaches a

### -24-

concessionthat the district court may determine what is reasonabl e promptness, and the proper length of the phaseout.

The State makes a robust argument that Jenkins III bars suc h interdi strict remedies. On the other hand, the legal underpinning i n the past has been that voluntary plans can be a part o f an intradistrict remedy and that the burden can be placed on the consti tutional violator, in this instance, the State of Missouri.

The Mi ssouri City order was entered on March 7, 1996, one of th e first orders entered by thecourt following Jenkins III , and it was not thoroughly briefed. While the State had filed a motion for declaration of unitary status by March 7, the State had not made an effort to call for a hearing on this issue . After the March 1996 order, the State and KCMSD entered a proposed agreement for a three-year phaseout of th e desegregation remedy, subject to court approval. Both the unitariness and settlement matters were set for hearing.

Under these circumstances, we deem it unnecessary to discuss th e arguments in further detail. In view of the State's concession tha t
some reasonable phaseout is authorized, we think it appropriate t o remand this issue to the di strict court for further consideration after the hearing concerning unitary status and the proposed settlement.

. . .

The opinion of the Supreme Court in Jenkins III gave specifi c directions to the district court to reconsider the order on qualit y education programs under the three-part test from Freeman v. Pitts . The Court m akes clear the necessity for detailed and specific findings by the district court and that it identify the incremental effect tha t segregation has had on minority student

### -25-

achievement, and the specific goals of the quality education programs. 115 S. Ct. at 2055. It further instructed that the district cour t should "sharply limit, if not dispense with, its reliance" on improved

ac hievement on test scores. Id. It cautioned that the qualit y education programs should be tailored to remedy the in juries suffered by the victims of prior de jure segregation. Id. at 2056.

We thi nk it also appropriate to observe the comment of Justic e O'Connor, who joined in theopinion of the Court, but in her concurring opinion noted that the Cour t refrained from addressing the propriety of all the remedies the district court has ordered, revised, and extended in the eighteen-year-old hi story of the case. While these remedies may be imprope r to the extent that they serve the goals of desegregativ e attractiveness and suburban comparability that were held to b e impermissible, "conversely, the District Court may be able to justif y some remedies without relia nce on these goals. But these are questions that the Court rightly leav es to be answered on remand." 115 S. Ct. at 2061 (O'Connor, J., concurring).

We therefore affirm the district court' s disposition of the 1996-97 budget issues, and reverse and remand on the private school recruiting issue and the Missouri City transfer program issue.

A true copy.

Attest:

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