Chinyere Jenkins v. School Distric of KC

691, Intervenor— Local BEAM, Circuit Before WOLLMAN Appellee PANNER,1 Judge. District Judges, CURIAM. PER Carnahan, MISSOURI; Mel State Missouri; the State appeals Governor Bailey Crystalline S. Plaintiff State of Holden, Treasurer Bob summary grant of court’s2 Missouri; State Missouri Packaging Anchor for defendant judgment Woods, States Heniy United Panner, 2. The Honorable United M. Owen Honorable Ar- Eastern District Judge for the District of Ore- the District District States kansas. sitting by gon, designation. Education; Herschend, Peter Member Missouri State Board of Edu-

cation; Davis, R. Thomas Member of

the Missouri State Board of Edu-

cation; Bartman, E. Robert Commis-

sioner of Education of the State of

Missouri; Burns, Rice Pete Member

of the Missouri State Board of Edu-

cation; Williams, Sharon M. Member

of the Missouri State Board of Edu-

cation; Betty Preston, Member of the

Missouri State Education; Board of

Jacquelline Wellington, Member of

the Missouri State Board of Edu-

cation; Thompson, Russell Member of

the Missouri State Board of Edu-

cation, Defendants

School City; District of Benja Kansas Jr.,

min Demps, Superintendent,

School City, District of Kansas Mis

souri; Rios, John A. School Board

President; Kurtz, Patricia School Member; Barnes, Jr., Lee Member;

School Board Lance Loew

enstein, Member; School Board Sandy

Aguire Mayer, Member; School Board Warrick,

Elma Member; School Board

Fifi Weideman, Bliss School Board

Member, Appellees. Defendants — 00-1048,

Nos. 00-1288.

United States Court of Appeals,

Eighth Circuit. May 16,

Submitted

Filed June normalized gap of ten Mis- Benson, City, Kansas A. Arthur KCMSD’s between equivalents curve appellant. souri, argued, vestige was a white students black and Mis- Thornhill, City, A. Mark violation, or- and he the constitutional appellee. souri, argued, steps to reasonable to take dered the next vestige within that eradicate WOLLMAN, Judge, Chief Before 1157-65, At the 1179. Id. years. three McMILLIAN, S. RICHARD HEANEY, a settle- time, approved Clark same GIBSON, ARNOLD, R. JOHN State, the and KCMSD between ment HANSEN, LOKEN, BEAM, BOWMAN, pay would the State that providing ARNOLD, SHEPPARD MORRIS years, three over million $320 KCMSD BYE, Judges. MURPHY, Circuit and from return, would be dismissed in and GIBSON, Judge. Id. Circuit at 1180. R. litigation. the JOHN chil class, the representing Jenkins The judge district the January On Missouri School City, the Kansas dren supervision Judge Clark who succeeded case, desegregation in this District declaring an order entered of the case de court’s order the district appealed the obligation under paid its had the State dismissing unitary and claring the district from the State dismissing and settlement fol The order prejudice. with case the January Order of the case. consid court to hearing the set a lowed continue must that the State court said equita for motion amended er KCMSD’s it under- any obligations comply Missouri the ruling of a relief from ble lawsuit the course the during took declaring Education State and agreement by the covered were not would of KCMSD accreditation the taking action against the State warned After May effective withdrawn ultimate- from KCMSD prevent that might motion, KCMSD’s court denied the district remedial its court-ordered fulfilling ly to a discussion sponte proceeded it sua pointed court then Id. at 6. The goals. de the unitary status three giving KCMSD order Judge Clark’s unitary. panel A to be the district clared vestig- remaining all to eliminate years remanded, Jen court reversed commented the court segregation; es of (8th Missouri, Cir. F.3d 361 v. kins time on this remained months that fifteen motion KCMSD’s 2000), granted and we “lengthy considering the Id. After line. receiving After banc. rehearing en for to attend likely process” litigious parties from filings additional status, unitary motion renewed remand. we reverse argument, hearing for a prepare parties to directed the January begin on hearing to unitary long status in detail not discuss needWe 3,2000. Id. desegre- City school history of of con- a finding After litigation. gation super- its new had hired When violations, effort years of stitutional intendent, Benjamin Demps, them, litigation and extended remedy 19, 1999, told July on hearing judge, at catalog, the we need which appeals hearing unitary status Demps that Mr. for a moved declaration Missouri State January 3. was set for March On unitary status. appeared before Counsel Clark, presided had who Russell scheduling confer- for a August filing, granted case since over “to ad- stated ence, the court which See part. in denied part, but motion status preparing ... 1151 dress F.Supp. particular, January,” and hearing Cir. aff'd, (W.D.Mo.), F.3d pre- anticipated parties XIV). evidence what 1997) (Jenkins particular, for the hearing. Counsel senting twenty-six percent held Judge Clark suggested class delaying the hearing. He said he would need to have a hearing to said that it would be difficult for KCMSD take testimony from one of experts to make a case that everything practicable who testified at the earlier unitariness done, had been because a “pret- there was hearing and also to hear whether the dis- ty widely agreement shared that this is not trict was “on track” in implementing the Furthermore, the case.” some test data five programs. The court commented that in, were not and others seemed to show problem had been delay imple- achievement had not been closed. mentation plans five to reduce the Nor had implemented the curric- gap. The court further com- ulum, professional development, and ac- mented that the track record of the dis- countability plans designed to close the trict had not convinced him that KCMSD Also, gap. just KCMSD had hired a new was putting heart and soul imple- behind superintendent. The class’s counsel sug- menting plans the five or that KCMSD gested a hearing the late summer of could out of get political get mode and 2000. into looking after the best interests children. pointed

The then court to Judge Clark’s statement that gave the district three Following conference, the court filed years to eliminate vestiges of discrimi- a written order formally denying the mo- nation. The court he stated “believed the continuance, tion for stating: Supreme Court they when told me to get provided [T]he Court for termination of this school district returned to local con- [DMC] March 2000. See trol” and that both he Clark Order at Doc. #4575 (August had given years KCMSD three comply. to 1997), .... if [E]ven the KCMSD has Counsel pointed for the class out that not unitary status, attained all three recently the had monitoring been less Monitors would be removed. See id. heavy-handed, and that the monitoring time, At that the Court would need to committee, which was commonly referred determine the need for new Monitors or DMC, to as the had sending things been even a new remedial structure. Such a back to the superintendent new to handle. determination cannot be made without Counsel said there many ways were evidence the KCMSD’s current status. committee could lighten its monitoring. Counsel for the class stated that he did not ... [unitary hearing status] will

anticipate that he would presenting new begin, scheduled, on January approaches or anything imple- than other mentation of the five programs already 26,1999 Order of August (empha- planned for reducing added). the black-white sis gap: curriculum, achievement class- 21, 1999, On October the State Board of practices, room professional development, Education voted to withdraw accreditation assessment, and accountability plans. KCMSD as of May In re-

The district court then stated sponse, that he KCMSD an filed amended motion sensed that both the class and equitable KCMSD for 25, 1999, relief on October were “pretty satisfied that the school dis- to bar seeking the State’s action on the trict can’t ... go with the ground forward burden it would interfere with the proof that the has narrowed.”1 He remedial decree Jenkins.2 That same 1. This statement came following after the ex- KCMSD's counsel "[W]e said: have a sense change. When class counsel said in moment ... that the district would have there “widely agreement” uphill fight January.” shared KCMSD everything practicable had not done to gap, eradicate KCMSD 2. In KCMSD’s motion relief from the de- object did not action, to representation. accreditation it asked the stay to ab initio The action of setting declare void issued an order

day, the court classifying of Education hearing on Novem- State Board motion KCMSD’s dis- an unaccredited school on three enumerat- KCMSD as 1 to hear evidence ber (1) the motion ruling on before court should trict.3 After whether the ed issues: it, (2) proceeded sponte sua to con- declare the court rejoin party; as a the State the district was sider issue whether the action of the Missouri void ab initio light the nature of our classifying unitary. Education State Board of district; necessary it that we set out ruling, as an unaccredited rea- (3) substance the court’s detail the enjoin application that, much soning. say Suffice which the State statutes on of several parties’ surprise, the court ended de- action was based. Board’s uni- claring that the KCMSD had achieved hearing held the KCMSD’s The court case tary The court dismissed the status. 1-2, 1999. We need motion on November prejudice. testimony before in detail the discuss court, except to that it was di- state I. outlined issues rected 25. The court in order October us The issue before is whether parties agreed argument in oral before determining erred in court unitary was a panel hearing that the unitary and the dismissing to be KCMSD At of the hearing. the conclusion status hearing evidence or taking case without 2, the proceedings of November arguments. staff counsel whether the asked KCMSD’s January In 1999 the court scheduled a agreed there be a KCMSD board should hearing unitary January on for status January. in Coun- unitary hearing status 2000, and in a conference with coun- both sel that the board voted unanimous- stated August sel and a written order in 1999 authorized ly to seek a continuance and necessity on specifically commented the a the agree her to to continuation of moni- continuing hearing for a to evaluate what configura- in current toring committee its judicial would required. involvement tion aca- until the end 1999-2000 1-2, setting order the November The year demic June. hearing hearing limited that to issues 9, 1999, KCMSD a On November filed rejoined as whether the State should be requesting written motion a continuance of party a and whether de-accreditation unitary hearing January set status ab initio. order should be declared void 3, 2000, consenting super- to continued transcript testimony that the discloses sug- vision DMC. KCMSD further hearing were directed and evidence gested appropriate it would be to inquiry to these at the issues. The court’s beyond extend the term limits of the DMC hearing 1-2 conclusion of November 25, 2000, and hearing March to set unitary to whether there should be a sta- year, end the academic June January hearing tus demonstrates 2000, to the role of the DMC and assess it had the court did consider conducted scope consider reduction in the hearing. re- such KCMSD’s counsel’s oversight body in the future. sponse inquiry by written motion November On November the district court is- filed request hearing denying sued an order KCMSD’s continuance the unitariness party as a did not consider rejoin refusing State demonstrate and, years regain if the de-accreditation until plans five remedial which accreditation not, fully implemented. consequences, had been in- does further serious it district, cluding may follow. dissolution of The action of State Board of Education 1,May effective 2000. KCMSD has two was that there had been a hearing mate way, to prior violation.” Other status. statements in Freeman similarly recog- nized that the burden was on the district It is evident from what we have said good demonstrate a faith commitment above that did nothing to contest to compliance with the desegregation plan. class’s statements 498-99, Id. at 112 S.Ct. pre- 1430. This KCMSD was not ready to move forward sumption places the burden hearing and establish that KCMSD unitary, on unitary KCMSD, status on including the judge acknowledged as much. the issue of reduction in student achieve- From and from the court’s order limit- ment and the achievement gap. KCMSD ing proof at the November hear- admittedly made attempt no to demon- ing, the Jenkins class as well as KCMSD strate that unitary status had been into the hearing went with no expectation achieved.4 that unitary status was an issue to be tried. This court stated in v. Special Booker School District No. F.2d held, Jenkins XTV we based (8th Cir.1978), “There is no question that upon abundant authority, Court in a proper case a federal district court that once there has been a finding that a that has injunction issued an may vacate it defendant established an unlawful dual modify or it is established that if school system past, pre there is a continue it in force or without modification sumption that disparities current would (em- work inequitable result .” sort listed Green v. County School added.) phasis Board, 430, 435, U.S. 88 S.Ct. (1968), L.Ed.2d 716 are the result of the In United States School defendant’s unconstitutional Commissioners, conduct. See 128 F.3d 507 Cir. XIV, 122 Therefore, 1997), F.3d at 593. the Seventh Circuit a faced situation the burden proving unitariness rests on nearly identical to the one before today. us the constitutional violator. There, Id. 593-95. the Board of School Commissioners statement Our in Jenkins sup XIV found of the Indianapolis Public School District in port Pitts, Freeman v. 467, 503 U.S. requested that the judge lift injunction an 494, 1430, 112 S.Ct. 118 L.Ed.2d 108 requiring busing of public school students (1992), where the Court stated- on ground the the district had respect with to racial in imbalance student unitary achieved status.5 The district court by attendance caused the policy unlawful declined to address the issue of unitary of a system, “The status, School District but modified existing its order bears the burden of showing that any cur extending the busing to kindergartners, an rent traceable, imbalance is not in proxi- a issue that had not been raised the XIV, Cir.1986), pointed 4. In Jenkins we finding to modified, the 'das 807 F.2d 657 aff ce the district in the first remedial order denied, rt. 108 S.Ct. 98 decisions that "the indige- inferior education (1987)). L.Ed.2d 34 The district found state-compelled nous of the sys- dual school that the minority adverse on effect student lingering tem has effects in the City, persisted achievement still in 1997 in the Missouri School District.” 122 F.3d at 594 form of an gap; we held that (quoting Jenkins v. F.Supp. 593 finding clearly was not erroneous. Id. at (W.D.Mo.1984)). We quoted also 597-99. findings, later tem wide the "Segregation sys- has caused a reduction student achievement in opinion schools of the 5. The Seventh KCMSD.... Circuit’s [The] edu- stated that a process cation 'bogged has been phase further district wanting desegregation to out a down’ in the KCMSD a history segregat- permitted decree could only be to upon sodo often, result, ed education. Too as a higher a presenting existing evidence that the order percentage of among black students are the had outlived its usefulness. See F.3d at lower (quoting Id. achievers.” Jenkins v. Mis- souri, 19, (W.D.Mo.1985), 639 F.Supp. later, the deprived Jen- two months Circuit, opin- some in an Seventh parties. guarantee. constitutional of this kins Class Posner, stated: by Chief ion that the conceded KCMSD for modifi- Counsel this for judge the asked one No argued not ground was on a ruling a court’s As hearing on it. no cation; was there the court but insisted parties, by the judge’s nothing result, there Having ahead of KCMSD. thinking was it is which record order, in the or liti- from release unexpected achieved kindergarten respective based, about support to give to hastens KCMSD gation, in the facilities, capacities programs, ruling. about areas or and transferee transferor compelling the district court appropriateness argues that KCMSD against young children declaring such busing of err did not they notice, argu- hearing, whether wishes parents’ their benefit without much evidentiary presentation. ment, same buses or to other are be Railroad Wabash Link v. cites children. older 8 L.Ed.2d Co., U.S. court’s support 512. In F.3d at that “Parties (1962), principle for here, did not they, like KCMSD order hearing.” to always entitled not point- appellees place, in the first seek little, any, relevance if Link had “learned judge out ed Link, court set case. in Mar- school education public lot about counsel. notified conference pretrial he has thirty years County ion did not plaintiff lawyer for When Id. litigation.” over presiding been set, court dismissed the time appear at responded: Circuit The Seventh and failure appear failure to the action temptation [Gjreat knowledge is a no did 629. Link Id. at prosecute. temptation blur a resource: well as fail- dismissal that the than rule more shift powers, separation of dis- abuse prosecute ure to courts the federal between balance 82 S.Ct. Id. at cretion. far to- too government local state and sanctions, about what about Link is proce- disregard courts, and to ward given parties should opportunity a con- niceties, all fulfillment dural be- argument and make evidence present of mission. fident sense case. their the merits ruling on fore a Id. proper proce- the not about certainly is It was deal- the Seventh Circuit Although desegrega- of a school dismissal for dure we remedy and aof expansion ing with district a school in which tion case one, princi- the elimination with the deal vio- constitutional liable for adjudged been equate niceties procedural the same: ple is decree. a remedial subjected to and lations the be afforded must and due process general However, have some does Link vacated Circuit the Seventh As parties. as it dis- insofar to this case applicability for the and remanded order sponte the sua justify can that the circumstances cussed evidentiary hear- an to hold district opportunity without of an order entry we. so ing, should of notice adequacy “The heard: to be may that proceedings respecting hearing to entitled notice parties The turns, a consider- to rights party’s unitary affect status for a prepare to opportunity which the knowledge extent, on able burden carry the would hearing. may be party such show circumstances and the Jenkins hearing, proof at such his consequences taken to have opportunity to an be entitled would class 332, 82 S.Ct. conduct.” own requires lawof process Due respond. to attorney Link, where Unlike ruling sponte The sua less. no conference pretrial had notice earlier court, several spite of its district ap- to his failure that have known hearing should unitary status setting the orders pear consequences, would have in this case come implementation down to of the five (classroom there was no parties, notice to plans practices, professional de- either victims, constitutional violator or velopment, assessment, accountability and that the unitary curriculum) issue of status was to be crafted improve student considered decided at the November achievement and eliminate the achieve- hearing. To contrary, every there was ment between white and black stu- unitary assurance that status would not be dents. us, Counsel conceded to as well as considered until the scheduled January court, to the district that when these five hearing, requests plans KCMSD’s for implemented have been satisfactori- strongly continuance suggested ly, he will have no further plans sug- would position be in a even to contend gest. The remaining issues have been thus district January narrowed. 2000. Link simple demonstrates fair- panel ordefed that on remand the ness requires notice and hearing before a judges of the Western District of Missouri decision that dismisses the case. assign should this case to another district

At oral argument, judge. KCMSD’s counsel 205 F.3d at 370. objects suggested that the Jenkins class had to the reassignment order argues opportunity present evidence on it was improperly entered. Eight of the question unitariness hearing judges on this court have determined that class’s stay motion to pend- the dismissal the court should not' order reassignment ing appeal. The opportunity to argue a remand.7 motion, stay with the class having the bur- We reverse and remand for pro- further den issues, on four discrete placed which ceedings in accordance with opinion. position constitutional victims in the of The mandate shall issue forthwith.

arguing horse should put back barn, does not substitute WOLLMAN, Chief Judge, with whom present chance to evidence and argue the MORRIS ARNOLD, SHEPPARD Circuit merits in a hearing purpose called Judge, joins, concurring. of determining unitariness. I agree with the court that the district The sua sponte ruling declaring the dis- court erred in not according parties trict unitary and releasing the admitted the unitary hearing status that had been constitutional violator from further court promised to them. join I Accordingly, supervision, without giving notice either the holding reversing the appealed order the constitutional violator or the victims or from and remanding the case to the dis- permitting parties present evidence trict court without reassignment to anoth- issues, and argue these was error.6 er judge. I write separately only to I indicate that

II. do my agreement not wish with dispo- the class, The counsel, Jenkins through its sition of the appeal to be my read informed the district court and to conceded of all endorsement that is said within the this court that the issues opinion case had regarding this court’s opin- earlier 6. The court has not necessary today it parties found The before us have not raised the to reach the of merits the district court's Indeed, issues discussed in the dissents. both dissents, however, order. Both are focused parties accepted have Jenkins XIV as the stan- case, on the merits of the and almost exclu dard unitary under which the issue status sively opinions on of the district be must considered. court, Missouri, court and this Jenkins v. (W.D.Mo.), F.Supp. aff'd, 122 F.3d 588 McMillian, Judges Gibson, Heaney, R. John (8th Cir.1997) (Jenkins XIV). After the deci Bye and reassignment would order of the case XIV, sion in parties none of asked on judge. remand to another district rehearing petition or filed a for certiorari. seg- remained City schools The is said case, of that or all

ions ap- year, we In that until 1986. must regated District the School what regarding after them desegregate to plan that it is a proved court the district satisfy to show slavery— years has of forty-five that it than more a declaration to entitled me, is it For the education forbid unitary status. the state when achieved blacks, the State say that to see Laws enough hearing parties at 104 given Assembly, 1st Session have should 14th General opinion court’s 1847) The years them. promised (Jefferson City it had —and I hearing, which that them of now assures for black public schools segregation —when reasonably near held will be hope infe- only separate, but were students notes, counsel class theAs students, future. Brown see for white rior to those sta- unitary that the August last suggested Educ., 75 S.Ct. in late summer hearing be set tus (1955). We believed 99 L.Ed. last No- suggested District and the School and fully plan if the court-ordered the end hearing be set a vember city white students implemented, faithfully will which year, academic parochial schools and private attended who on June occur system, public school to the return would able at- will be would be District students School white Whether suburban and demonstrating that to be magnet schools carry integrated its burden tracted status, I unitary do we Importantly, city. has achieved established hear- status theBy voluntary time interdistrict know. also stated will have held, District the School in St. ing similar program transfer take further months to number had a in Kansas implemented Louis should the several implementing steps towards City. since programs

remedial decrees, the a result As dismissing 1999 order court’s November books improved, more facilities have District steps School the case. What available, class size teaching aids intervening months those during has taken compensatory reduced, remedial been commitment of its may be measure well funded been have programs educational efforts good-faith self-proclaimed to its opportu implemented, educational eliminat- steps towards practicable take all alike students and white for black nities of discrimination. vestiges provable ing City’s Although Kansas improved. have would improved, they public whom schools HEANEY, Judge, with Circuit and the KCMSD the State joins, had McMILLIAN, be better Judge, Circuit Supreme with complied promptly concurring. in 1955 to instruction unanimous Court’s R. Gib- John wholly I concur speed,” id. all deliberate “desegregate with Taking care opinion. well-reasoned son’s Supreme or with 75 S.Ct. path established stay “that opinion unanimous Court’s States the United precedents of run speed has deliberate for mere time court, cor- Gibson Court board the school burden on .... out parents the students holds that rectly plan forward today is to come process due were denied of the KCMSD prom work and realistically to promises the school court declared when the district now,” Green realistically to work ises no- affording them without 438-39, Bd., 391 U.S. County Sch. separately to I hearing. write tice or (1968). More L.Ed.2d 716 agree- my fully reasons express more could over, and the State cor- opinion and to majority ing with improvement for further ensured history painted revisionist rect positively and they promptly had schools Beam’s dissent. Judge complied with the district court’s spire 1986 de- community, parental, or student con- segregation fidence in the orders.8 school district. There is no doubt the KCMSD years The fact is that 165 of racial dis- currently is faced with more than fair its crimination simply could not be overcome share of difficulties—difficulties brought in fourteen years short of court supervi- on in large measure State. Shortly sion, particularly without the full coopera- after receiving a judgment declaring that State, KCMSD, tion of the and the it had satisfied obligations being suburban schools. period, Over this none case, dismissed from this the State took of these entities imple- made effort to two dramatic actions that will impair the

ment a voluntary interdistrict transfer ability KCMSD’s provide to a quality edu- program, complete thus preventing inte- cation First, for its students. it authorized gration City Kansas Fur- schools.9 creation charter schools in St. Louis ther, the State of Education no took second, City, Kansas it de-accred- responsibility for the KCMSD’s perfor- ited the City Kansas May schools effective mance, and never once during the four- 2000 because students have done poorly teen-year period implement moved to student achievement tests. quality programs education called for in is, It course, appropriate for the State plan. Clark’s It simply complied to schools, create charter but is difficult

with the district court’s funding orders. to understand why it authorized the cre- addition, In the constant bickering be- ation of these only schools in the state’s tween the State and the KCMSD and the cities, two largest both of which enroll a changes numerous in leadership in the large majority of black students. Addi- Kansas City schools obviously did in- tionally, not required KCMSD is pay to Among 8. programs approved by the dis- I would hold that the District Court erred in trict court and library, this court were concluding that the SSDs cannot be re- load, teaching ments; improve- curriculum quired participate in an interdistrict rem- counselors; additional summer edy for interdistrict segregation school programs; school full-day kindergarten; be- by the caused State’s constitutional viola- fore and after tutoring; early tions in the area housing. The case development programs. childhood ap- Also should be remanded to the District Court proved were a student achievement program for determination of the current interdis- and a programs class size reduction. The effects, any, trict housing if of the State’s designed were remedy the effects of the Any violations. implicated by SSDs this system dual bring systematic and to about analysis obliged participate should be improvements. educational Jenkins v. Mis- appropriately tailored interdistrict reme- souri, (8th Cir.1986) 807 F.2d dy- (en banc) (Jenkins I). (Arnold, J., Id. at concurring). Further- more, Judge Ross stated: I, In Jenkins we stated: At argument the time of my it was under- A voluntary program interdistrict transfer is standing that a voluntary pro- interdistrict great one potential that has for improving gram, patterned along lines of the St. the racial City in the balance area. program possibility. was a Louis It real experience in St. Louis with such a appear would now some districts plan seems to have been favorable. The moving are plan. forward with this district court holding is correct in its opinion my organize failure program such a mandatorily cannot be im- implement program very posed would be a upon the record before the court. significant determining factor in discrimi- Whether a refusal of a district participate natory intent litigation voluntary program in such a future which may evidence discriminatory process- certain to result from the further intent and thus be an inde- pendent ing program basis case. The St. for further relief and Louis manda- tory participation is an be a useful issue that should would model for the we actions to anticipate. all taken the Missouri districts which concurrence, 807 F.2d at 683 parties n. In his to this action. J., (Ross, Arnold stated: Id. concurring). to as question also a serious There is transporting educating cost of accept will schools suburban whether the As a these schools. attend who students black stu- City’s Kansas large will numbers public schools City’s result, Kansas dents. providing time difficult more

have a pro- teachers, educational trained take issue I concluding, must Before necessary to en- materials and the grams, Judge comments some stu- of those improved sure First, assertion his Beam’s dissent. black, who remain dents, overwhelmingly routine “[sjtudent scores measured schools.10 public standardized administered regularly de- or have static have remained tests worse, de-accredi- matters To make 1987 to From clined” is unfounded. students allows tation of the only im- test scores KCMSD student within other attend schools significantly but grades, in most proved It is expense. KCMSD’s at the the state however, test op- improved. State, which noteworthy that cited resulting in those dropped, past scores over the transfers posed interdistrict for the decline The Beam. reasons suddenly approves years, now fourteen may in the record unexplained explana- are only logical transfers. such hearing. unitary status during the explored of heart change sudden the State’s tion for test scores comparison of the Below is now be must of transfers the cost is that State, from 1988 to rather than the KCMSD paid by by any school district spent other City public school of Kansas 10. If number fact is that re- schools charter children enrolled year which statistics year, KCMSD will the last in FY school mains constant $8,240 available, pupil districts in per unless spending several school be limited money through per expended pupil additional more able to raise it is State of Missouri Moreover, Brentwood, (J.A. 1041.) KCMSD, including wit- at taxation. did local than Ladue, $9,938; they $11,239; ex- $8,735; testified Clayton, for the KCMSD nesses 3,200 other districts Center, $8,583. pect pupils transfer Social Office of See $35,892,000. the KCMSD of University cost to at (J.A. total of Mis- Analysis, Data Economic 1043.) students this number of If souri, <http://www.oseda.missouri.edu/coun- $7,450 transferred, just will have year, typage>. the 1994-95 Since remaining to educate per pupil available declined pupil spending has per KCMSD’s 21%, (J.A. 1045.) 28,000 students. spending in the above- per pupil while average districts increased cited school Contrary assertion Beam's See id. spending is well above 19.5%. City pupil per Second, Judge Beam states Missouri Education, State Board of racially “students remain as iso- close the achievement between black lated when the first remedial order white students even to the modest district, twenty- entered.” He notes that degree required by the court and five minority had 90%+ enroll- required schools now by this court. The fact of ment, 1999, and in in- number had the matter is that achievement levels of twenty-seven. creased to His statements City’s Kansas black students have im- misleading. racially- The number of proved and will continue to improve as isolated schools the KCMSD decreased long as the State and the KCMSD under- twenty-five from sixteen in 1996. stand that it is their responsibility do See KCMSD (Sept. Student Census Count everything reasonably practicable 25, 1996; 1997; 1997; Sept. Jan. achieve this result. 28, 1998; 30, 1998; Sept. Jan. Jan. As Court made clear in 1999). Only in past three years has Dowell, Board Educ. racially-isolated the number of schools (1991), S.Ct. L.Ed.2d 715 jumped twenty-seven, from sixteen to withdrawal supervision of federal requires 69% increase. Such a substantial increase not only compliance with the commands of may indicate that the KCMSD is in the Equal Clause, Protection but also a process of resegregating itself. showing “that it unlikely [is] Third, Judge Beam asserts that bil- $2 return to its ways.” [will] former lion in spent tax dollars has been since status, Thus to achieve unitary 1985 to the plan desegregate fund the KCMSD only must demonstrate not that it City Kansas Accepting schools. the validi- has eliminated racial isolation to the extent ty of that statement for purpose of this practicable, Jenkins, see Missouri v. concurring opinion, I note that over the 70, 90, 115 U.S. 132 L.Ed.2d 63 period, fourteen-year the State and the (1995), but that it also will maintain those spent $142,800,000 an average of gains when the litigation ends. Absent per year $3,900 or approximately per pu- unitary hearing, status it could not be de pil. sum, Of this City Kansas contributed termined whether the KCMSD has met approximately million or per $417 $833 requirements. these pupil per year. next, No one knows what will occur but expenditure This by the State and the one thing certain: City is Kansas needs KCMSD to desegregate City’s Kansas good public students, schools that offer all schools context., must be viewed in As white, black or poor, rich or good edu- noted, black previously children were de- cation. good public Without a sys- nied forty-five education for years and tem, all of City will suffer-the com- inferior, provided were segregated edu- munity, parents, and most of all the years. cation for 120 Although precise students who deserve an education which dollar amount is not contained in the rec- will enable to be productive them citizens. ord, it is clear that both the and the State If the State of Missouri now believes that KCMSD saved hundreds of millions of dol- capable KCMSD is not operating lars during slavery and segregation schools, City the Kansas it can and should periods. expenditures for desegrega- take over the schools and try its hand at must against tion be balanced the savings giving quality the students a desegregated years. made over 165 education. If the State is to do unwilling Of all the conclusions reached point so-and to this it has been-it should dissent, Beam his the most disturbing penalize is not the students dismantling beyond power, the KCMSD’s the KCMSD. Rather the State should with or cooperation without way find a to work with the KCMSD to 1997, KCMSD us in before case was re- the the provide and education

improve that the ruling the supported sought and that end. necessary to achieve sources segrega- vestige gap was achievement brief, KCMSD XIV In its Jenkins GIBSON, Judge, with tion. Circuit R. JOHN the court McMILLIAN, expert, whom “KCMSD’s stated: and whom HEANEY causal credible, the established separately. writing declared join, Judges, Circuit jure segregation de between connection to ex- in concurrence separately I write achieve- minority student and current appears that upon the statement pand presented at 36. “KCMSD ment.” Brief to opinion the court’s 6 of footnote student the that evidence substantial the dissents. respond to continues, consistent vestige achievement argue that dissents Both Brief at 35. III standards.” with Jenkins the ruling the to follow failed XIV Jenkins from the KCMSD benefitted Jenkins, v. in Missouri Supreme Court it to retain $4.96 allowed ruling, which 2038, 132 L.Ed.2d 63 70, 115 S.Ct. 515 U.S. remedy to fund levy imposed tax III). (Jenkins district court (1995) violation. See continuing constitutional directions in referred specifically KCMSD, having F.Supp. at 1154-55. 959 whether “decide III that it should Jenkins enjoyed the having ruling and sought that minority in achievement reduction repudi- it, not now seek does benefits jure de seg prior attributable students it. ate extent [the] remedied has been regation Clark Judge that states Judge Loken “incremental identify the practicable” and that finding the critical not make “did minority on has had segregation that effect students within gap among achievement goals specific or the student achievement of discrimi- vestige the KCMSD was also Jen programs.” education quality jure the de link to a causal nation with F.Supp. kins at 743 being remedied.” violation Infra III, 515 U.S. Jenkins (W.D.Mo.) (quoting omitted). (internal Judge Clark quotation 2038), aff'd, 122 F.3d 588 at S.Ct. that Dr. Trent’s finds “The Court stated: XIV). (Jenkins (8th Cir.1997) accurately identifies test is reliable III that “Jenkins asserts Beam portion [of the incremental achieve- purported not authorize does jure de prior dis- to the attributable gap] at 736-37. vestige.” gap as ment Infra Later, F.Supp. at 1164. crimination.” III neither “authorizes” fact, Jenkins In Clark findings, Judge up his summing vestige; type on this forbids nor reliance that 13% has found “The Court wrote: rather, look at the evidence it us to tells increase 13% of the initial gap gap part what the case to determine prior dis- traced to the may be (if constitutional caused any) was Id. at within KCMSD.” crimination 101, 115 violation. See found, F.Supp. Judge Clark so Judge Clark contends that Loken 1157-65, findings were held we his imposed the burden should XIV, See Jenkins clearly erroneous. violators to constitutional proof XIV is thus Jenkins 122 F.3d at 597-99. gap was not the achievement show that case. the law of the violations. the constitutional caused faithfully followed order Judge Clark’s fully question proof This burden III. Jenkins opin- in our and decided considered XIV, F.3d at 593-95. Jenkins ion. See us to recon- not now ask does this court in brief filed with XIV, present KCMSD’s nor did sider of dem- burden “[t]he argued it he was recon- suggest judge exists, unitary status ... onstrating exception applying any sidering it or viola- with the constitutional Further, squarely rests when doctrine. law case ditures). tor.” Brief at 29. Although this argu- I am confident that average ment dealt with the State as a per constitution- pupil amount is well spent above that violator, al KCMSD has admitted that it is by any other school district in Missouri for also a constitutional violator period.13 the same Until attorneys proof burden of point rests it. At no for the Jenkins class freely roamed the proceedings below or classrooms, hallways and playgrounds position has KCMSD taken any other than monitoring, observing, talking project- bears burden proof to demon- ing themselves into the work and edu- strate status. cational lives of principals, school faculty, staff and Appellants’ students. brief at 5. BEAM, Judge, Circuit with whom Until very recently, a Desegregation Moni- LOKEN, BOWMAN and Judges, Circuit toring Committee under the direct control join, dissenting. of the district court involved itself in the day-to-day activities of the system. school After years twenty-three of federal Joint Appendix at 1109-11. Unremark- supervision, the educational program ably, the Office of Superintendent of City of Kansas Missouri School Dis- Schools, supposed chief executive of (KCMSD) trict inis shambles. Its stu- system, school has been a revolving remain racially dents isolated as when door and once the office was empty for a the first order remedial was entered by significant period of time. Jenkins v. Mis 14, district court on June 1985.11 Stu- souri, 1151, 959 F.Supp. (W.D.Mo.1997) dent scores as measured routine and (Je VIII), aff'd, 122 F.3d 588 nkins regularly administered standardized tests (8th Cir.1997) (Jenkins XIV); Jenkins v. have declined,12 remained static or have School Dist. City, F.Supp.2d of and this has occurred even though over 1058, (W.D.Mo.1999) (Jenkins X). two-billion tax dollars have spent been Finally, the State has now designated the alone, since 1985 on plan the remedial with KCMSD as unaccredited. total spending educational averaging more $9,000 per (in than per student year addi- regrettable As and tragic as this situa- tion millions of in capital dollars expen- is, tion parts none of in parade this of In minority the KCMSD had a ginning stu- year in the 1987-88 school 11. continu- population dent twenty-five of 73.5% with ing until at least year the 1994-95 school with having greater schools minority than en- 90% exception kindergarten. placed I have rollment. See Jenkins v. School Dist. Kansas the earliest most and recent in scores table City, F.Supp.2d form, noting change average test scores (W.D.Mo.1999) (Jenkins X). January As of period. over this minority KCMSD popula- had student provided The Jenkins class the Missouri As- tion of twenty-seven and 81.8% schools had sessment Program results. The students are greater minority than 90% enrollment. See placed categories, in one of five per- and the However, id. Supreme because the Court in centage placed of students category each Jenkins, 70, 98, Missouri v. 115 S.Ct. for each of testing years is noted in table (1995) (Jenkins III), 132 L.Ed.2d 63 form. Both tables are in the addendum to "desegregative eliminated the attractiveness” opinion. this plan, remedial longer oper- KCMSD could no ate magnet program extensive school nor (exclusive per pupil 13.The expenditures provide transportation could it for non-resi- capital amounts improvements) for were as dent students. Given wh'at the 1993-$8,626; 1994-$9,646, follows: 1995- Court said it remedy, could use as a and an $10,308; 1996-$9,320; 1997-$8,688. and 8.3%, increase of minority population Appendix Joint at 971 and 1054. In for KCMSD has everything done practicable to instance, per KCMSD had pupil expenditure reduce the racial isolation in $8,239. Department disputed no See Missouri one has of Ele- this conclusion Education, mentary appeal. Secondary Card, Report School District provided the Iowa Test of http://www.dese.state.mo.us/reportsummary/ Basic every grade Skills for scores level be- average In districts/048078.html. short, a district school a federal court. or past pres- level of rises problems viola- a constitutional shambles remediable discrimination invidious ent tion.14 Missouri, 731 $5,925. Liddell required. See in Missouri per pupil expenditure Cir.1984) (en banc). 1294, 1302-09 F.2d id. See my questions Heaney, Judge in footnote Heaney contends Judge In his concurrence figures the education- spending taxing and history” First, paint a "revisionist that I cites he the KCMSD. operations of al I sincerely could wish While I litigation. school figures the 1998-1999 single-year case, I history this troublesome revise have not done St. Louis suburbs affluent year for three instead, have, accurately so. I near Kansas affluent one small Judge before that was the record reflected compari- average long-term I cite City, while citations amply provided Whipple and districts the school for KCMSD sons conclusions. my support statements But, the 1998- to consider across Missouri. history sordid Heaney discusses Heaney, KCMSD year America, allwe a circumstance slavery in excluding $8,239 operations, for school spent and unlaw- unequal discusses regret, and surrounding the improvements, while capital in Missouri system that existed dual school ful average of spent an districts school suburban course, facts, of These prior to 1954. how $5,834 general, no matter pupil. per In all, of relevant, matter only the initial at if figures, there is sim- you manipulate isolated long holding segregation, unconstitutional years, last fourteen over the ply no doubt and now ratified and determined since substantially per stu- more spent appeal. any or recent in this issue school any other Missouri year than per dent Mis State of Heaney also faults the Judge district. his embrace alleged failure for souri to misunderstand Heaney seems Judge also the Kan how vision of and social pedagogical therefore, the and, my of misapply discussion oper been system should have City sas school the cost of estimate for dollars two billion 1986, acceptance of a failure ated since plan. He misses desegregation court’s many ad shared, by school part, in least is mentioned dollars the two point that billion officials, public local other ministrators this plan desegregation alone for and numerous all races of parents students of beyond usual annual is above and amount expenses repre bargaining their collective teachers operations of for educational However, Supreme Court sentative. Indeed, capital expendi- excluding KCMSD. III, Judge most of in Jenkins pointedly noted operational ex- tures, total has had of the reme well outside Heaney's vision falls dol- billion approximately one penditures of spe in this authority federal court dial 1997, 1, very recent alone. A July lars since litigation litigation or other similar cific cal- Heaney’s erroneous Judge of illustration 70, generally, 515 U.S. See for that matter. oper- for in record can be found culations Further, 63. L.Ed.2d July from by KCMSD expenditures ational ap from this dismissed State was since years two through June in Whipple's predecessor Judge by peal improve- excluding capital expenditures, of court, by this affirmed that was a decision $9,426 or, $679,196,524, ments, amounted to disapproval directed Heaney's is Judge record estab- per year and the per student and, perhaps, this court non-party ward years for earlier per costs student lishes that proposals of rejected several his because always almost desegregation plan have many years ago. See Jenkins en banc review VIII, fig- recent these more equaled or exceeded 588; aff'd, 122 F.3d F.Supp. course, is, far differ- amount This ures. Missouri, Cir. 807 F.2d Jenkins fourteen-year unsup- Judge Heaney's ent from I). Judge banc) (Jenkins Finally, 1986) (en $3,900 pupil. per ported calculation disapproval actions Heaney expresses vein, Heaney takes me In a similar City re schools and Kansas suburban edu- my accurate statement task "voluntary” programs undertaken fers to or static have “remained test scores cational However, under his statement St. Louis. desegre- during the life declined” point-suburban important scores an rebuttal, from results he cites gation plan. districts, Heaney’s ob over City school What he does year 1993-1994. school to be free specifically found were jection, hearing gap at the achievement note duly dis and were violations constitutional Trent, pre- Judge Clark's Dr. William I, litigation. See missed from during time expert, that some noted hand, ferred St. Louis the other On F.2d at 672-73. test form” "a new year school schools, finding of of a under threat suburban See scaling” was used. Tran- "different by Court complicity constitutional is contained evidence script at Similar into a entered District Eastern such I submit the record. elsewhere dis agreement, enforceable settlement comparisons pro- year-to-year changes make court, state-fund program trict in which However, dispute, test without stipulated to blematic. were ed interdistrict transfers years, So after fifteen case, we are called this if any, portion lies within a of a upon only to decide one issue-whether the black-white educational achievement gap district court was in dismissing among correct exists students of KCMSD. costly theory This seemingly endless case conceived without Dr. William Trent adopted by holding an evidentiary hearing.15 district court in Jenkins VIII after a three-week-long hear- agree I with Judge Loken that ing determine, held to in part, the State’s both the district court and this court vio- motion status of KCMSD. 959 lated the Court’s mandate in F.Supp. at 1158. Jenkins III shifting the proof burden of As a matter, threshold I note that any on the issue of whether an achievement evidence that such a vestige exists in gap is a vestige of a jure de segregated KCMSD is dubious at best. Even a curso- system. I separately write only ry examination of the bases for Dr. Trent’s emphasize that if even such an achieve- opinions reveal them to nothing be more ment gap can correctly as a viewed guesses than speculation. This court’s prior discrimination, vestige of reliance on a black-white gap court had more than sufficient evidence to measure lingering effects of invidious the record to rule that KCMSD had shoul- segregation runs contrary to the finding of dered its burden of showing that it had every other Circuit Court that has consid- eliminated the practica- to the extent ered the issue. See United States v. City ble. This entitled KCMSD to a determi- Yonkers, 41, (2d 197 F.3d 54-55 Cir. of nation of unitary status. 1999); People Who Care v. Bd. Rockford of (and Unitary status final relief from Educ., 528, 111 F.3d Cir.1997); 537-38 control) is achieved when the vestig- Coalition to Save Our Children v. State of prior es discrimination have been elimi- Educ., Bd. 752, (3d 90 F.3d of nated “to the practicable.” extent Mis- Cir.1996). fact, In Dr. Trent’s testimony Jenkins, 70, souri v. 102, 515 U.S. 115 on this purported phenomenon reject- was 2038, (1995) (Jenkins S.Ct. 132 L.Ed.2d 63 ed the First Circuit. See Wessmann v. III) mine). (emphasis Gittens, The class now (1st con- 790, Cir.1998). 160 F.3d 804 cedes that only remaining vestige in Similar evidence upon based Dr. Trent’s experienced steady scores a decline apparent from the resegregation is a result of a limita- year by Judge cited Heaney until at least the tion on remedies available to the federal court event, year. end of the 1999 school In imposed by Supreme Court in Jenkins III. although changes Thus, during peri- occurred my this statement City the Kansas od, beginning ending figures my in schools racially segregated remain as today as absolutely table are my correct as is litigation conclu- began when the is accurate. ITBS, recurring sion that TAP and MAP scores indicate that advances in 15. The hearing educational class contends the held on 7, 2000, achievement did occur especial- January over time was not sufficient because ly upper elementary grades high proof KCMSD had the burden of on uni- However, school. tary proof only status. burden of is Finally, Judge Heaney my claims that con- an issue if the evidence equipoise. stands in clusions on racial isolation Additionally, mis- party a proof with the burden of leading, is, points course, period to a short of time of allowed to rest on the record when several dropped ninety schools below a before the court in order to shoulder both its level, percent minority production the level above which burden ther, persuasion. of Fur- the term "racial definitionally isolation” is odd beneficiary is that the of another applied. burden, While party's here, he is correct for this limited as the class is would

period, he also admits that due changing complain, especially cause to since an neighborhood demographics and other unfettered opportunity un- anything to rebut reasons, stated racially the number of thought persuasive isolated the record to the district (i.e., ninety percent schools higher or minori- was afforded the class the court. If ty population) now procedural reached the level process argument, I set due is the un- And, my forth in the body of dissent. of existing precedent, der the class has been course, that, he part, doesn’t mention process this afforded more than was due. 736 vestige. as a gap purported under inadmissible was held

methodology ves- list exhaustive not an Although Circuit. by the Seventh standards Daubert discrimination, achieve- student Care, at 537. 111 F.3d of tiges Who People See re- to the factors17 among the clings six Nonetheless, is not this court ment v. vestige of dis- Green under unitary status such quired existence claimed County, Kent New School Bd. County crimination.16 716 20 L.Ed.2d 88 S.Ct. in Jen position court’s Contrary to flag on red (1968). fact, raising a In (8th Cir. 588 F.3d v. kins of an achievement nature problematic not authorize III does 1997), Jenkins opinion for panel unreviewed previously the court opinion for 6 of his In footnote States, 162 Irving v. United concurrence, See Judge first time. John R. separate his And, Cir.1998). Judge (1st as merits of F.3d my for the concern faults Gibson en "the court Judge formula- in Liddell Gibson’s stated Although himself Gibson case. cor- the case slightly attempt different to decide appeal is on should issue banc tion 724-25, stated, we consistently.” both 731 F.2d ante rather than rectly I have than Whipple’s Judge correctness agree that the unitary sta- panel of the existence errone- determination Clark and In question component of the is a in KCMSD tus Court directions disregarded ously if KCMSDhas my position that at hand. It sub- proof and other concerning burdens status, Judge Whipple should unitary was, that, reached Beyond there mandates. stantive Thus, merits of dissent, be affirmed. a total Judge Loken's as noted reviewed, and the en- holding must be status vestige of discrimination establish failure to developed on Novem- record, just that tire "traceable, way, prior Pitts, [a] proximate in a be considered. must ber 1 and Freeman violation.” [constitutional] panel opinion position spite his 467, 494, U.S. part en in substantial to restate he continues banc, (1992). simply noth- There L.Ed.2d hinge purports to Judge Gibson now speculation beyond Judge Clark ing offered Whipple failure on his reversal of and, body cataloged in the conjecture, subject hearing hold schedule and ap- dissent, has been every court that my States v. cites United He unitary status. rejected it out theory has proached Commissioners, F.3d School of hand. 1997), that actual (7th inapposite case Cir. to misunder- Judge seems Finally, Gibson direction, prop for opposite ly cuts panel's affirmance my concern that stand deprived of a "con class was osition that gap vestige flies Judge achievement Clark's of unitary status of guarantee” stitutional Supreme Court's of directly the face deprivation, he This hearing. at 726. Ante My point is that III . in Jenkins mandate and remand. Oth requires a reversal posits, County v. School only Green does Commissioners, School than er Board of 430, 88 S.Ct. County, U.S. 391 Kent New you unremarkably cannot holds which (1968), omit student 20 L.Ed.2d 716 (rather Judge Whip than less as impose more for for consideration a factor as achievement school dis requirements on a proposes) ple status, ex- specifically unitary Jenkins III Judge hearing, Gib notice and without trict controlled, as it is factor because cludes this newly minted authority this cites no son noted, by circumstances Supreme Court at 512. I 128 F.3d guarantee. constitutional discrimina- wholly independent of unlawful guarantee whether no such is believe there 100-02, III, 115 U.S. at Jenkins tion. equal protection or process, upon due based to con- asked Every other circuit S.Ct. 2038. provision. Under the any other constitutional achieve- scholastic manifestation sider followed, clearly af was the class procedures agreed with vestige factor as ment any apposite process than due more forded rejected III and Jenkins interpretation of required. ever precedent has City Yonk- States See United proposition. argues merits that the also Gibson Cir.1999); (2d People ers, 54-55 197 F.3d decision, pur- finding a Clark's Educ., 111 F.3d Bd. Care v. Who prior Rockford vestige discrimination ported 1997); Save Coalition to Cir. gap, be- are achievement wrapped up in an Educ., F.3d Bd. v. State Children Our en banc. the court yond consideration Cir.1996). (3d 752, 776-77 upon a apparently based argument is This theory. Again, he cites no the case” "law of assignments, trans- indeed, student The factors are and proposition precedent for facilities, extracurricular physical portation, principles law of case argument turns activities, resource assignments, and faculty especially when true This is upside down. here, a allocation. considering, court en banc factor, as a Court noted that this court has determined the suburban many “demographic changes independent” City Kansas Schools were discrimination jure segregation of de could contribute to a free. See generally Jenkins v. III, gap. 515 U.S. at (8th Cir.1986) (en banc). F.2d 657 S.Ct. 2038. The Court stated “insistence Assuming, for the discussion, sake of upon goals academic unrelated to the ef- that the gap achievement is a vestige of of legal fects segregation unwarrantably discrimination, I turn the unsupportable postpones day when the KCMSD will position of the class and the court operate be able to on how on its own.” Id. to narrow gap. KCMSD has identified The of an frailty achievement gap aas five areas that supposedly contribute to vestige is dramatized testimony low achievement its minority students. two of the experts educational heard at the (1) These areas expectations by teach- January status hearing-—Dr. (2) ers; lack (3) of a curriculum; core Trent and Dr. David Armor.18 Both ex- (4) ineffective staff development; lack of a perts acknowledged that a gap exists na- comprehensive system; assessment tionwide, [Trent]) (Transcript at 1391-92 (5) the absence of accountability [Armor]) at all lev- (Transcript at 437 and Dr. Ar- created, els. KCMSD pointed mor had out the court gap City approve, plans five was lower than the address national these fac- average gap (classroom tors practices, and lower than professional the gap in suburban de- velopment, assessment, schools surrounding Transcript KCMSD. accountability, and at 499 & 502-03. Many of curriculum). Each the other plans these is now schools with a similar or greater gap purportedly at a stage different of its im- never been guilty found of race plementation, discrimina- ranging from nearly com- tion of any Id at 502-03. Indeed, sort. plete barely underway.19 All parties Additionally, it seems inconceivable that tary Education, Secondary for all this court validated the finding district court’s KCMSD schools. (b) portion liable anof Reduction of class sizes to levels below that existed even before the required those rating. for AAA children entered system. (c) the school See Jen- library improvements Extensive through VIII, But, kins F.Supp. at 1164-65. improved library media resources did. through hiring of at least twen- librarians, ty-two new thirteen of whom class, 19. Judges the court Heaney elementary are certified for schools. and Gibson in their concurrences concentrate (d) system-wide computer A pro- education solely upon the KCMSD educational pro- gram with state-of-the-art automation grams purportedly developed implement- and equipment highly and skilled instruc- (or ed process implementation) of since tors. panel's Clark's and adoption the of an (e) teaching A reduced load for all teachers gap However, vestige achievement in 1997. improved and an curriculum with addi- the record available Whipple to shows art, physical tional education and music that the 1985 KCMSD plan, remedial formu- programs specialty teachers. by Judge lated approved by Clark and the (f) Additional begin school counselors to panel, designed to achieve "results more at the elementary service level and to norms,” keeping with national with read- reduce the existing of workload counsel- ing skills at such national norms to be secondary at the ors level one to full achieved years, within four or five and was time counselor for each 390 students or identical, similar if almost not with one ex- fraction thereof. ception, present to plans the set of touted (g) program A summer providing school re- the class upon by insisted panel and the developmental medial and learning ex- now opinion. vacated Jenkins v. periences, reinforcement and enrich- F.Supp. (W.D.Mo.1985), aff'd "desegregative ment and a instruction part, Cir.1986) (en banc). 807 F.2d 657 learning experience.” That program educational included: (h) day kindergarten program A full in all (a)An AAA, rating annual evaluation of the elementary in the schools district. highest (i) awarded classification the day program extended including An be- Department Missouri State of Elemen- and tutoring. fore after school in normalized rate at the same improve can never plans the some of that concede then, (NCEs). Clearly equivalents of the idea curve because fully implemented

be ap- presently is that the shows evidence practices the educational “good” what itself, plan, by concedes also educational class court evolving. The proved always gap. is unitary status to achievement impact the obstacle remaining not the will a “satis- beyond to plans of well from factors implementation influence Without be. may level, now KCMSD, whatever approach factory” control fundamental more However, is a there will the court class and by the championed problem. unattainable. goal make to only serve eliminated, it if short, is when at offered evidence undisputed The federal and because is, will be non-minority shows hearing ever class- effec of curriculum respond equally supervision minority students educational because It will be and innovative teaching instruction. room tive at Transcript not achievable that are techniques.20 changes societal (Armor) and at 498 (Trent), Transcript power and remedial through use Rossell). (Dr. Christine Transcript at courts.21 of the federal authority to-be-implemented implemented use proposed Accordingly, will, according to KCMSD at programs dis- lingering measure gap to achievement all scores of the test raise testimony, idea, and use a misconceived is crimination race. regard without students to reach allow KCMSD never it will after educational sought laudable This class eyes of the “satisfactory” level because,' as the occurs result court. of this and, members perhaps, some III, tide “rising in Jenkins noted Court supervi- scenario, federal III, Under U.S. all boats.” lifts for, another perhaps, continue will words, sion under In other 102, 115 course, This, is twenty-three years. will students all KCMSD plan current however, all the one plan, plan. That develop- early childhood (j) An extensive implemented. fully agree is parties now program. ment ad- plans are now Although the current de- program schools" "effective An [k] edu- necessary for the as new and vanced changes accomplish signed to close progress needed cational up.” This the "bottom from are, KCMSD, really they gap in special money for program involves said, might have Yogi Berra philosopher staff, parents, developed by programs " Although Jenkins again.” deja vu all over administrators, principals, patrons, grandiose 1985 indicates now III teachers students. au- beyond the remedial was well program through special [Q development Staff court, its establishment thority federal goals of principles and training in the unparalleled implementation, vigorous implementation plan, desegregation proves that KCMSD amply taxpayers, cost programs, ef- instructional of effective "practicable” everything done has now transmission, impo- information fective de- Victory should unitary status. achieve solving discipline, equitable sition be dismissed. should now the case clared and problems, use transportation resources, and law community higher achiev- There is also evidence desegregation. applicable to school new respond better these ing will students 393, (8th Missouri, F.3d 398 19 v. Jenkins further. gap even widening the techniques J., Cir.1994) (Beam, dissenting to denial 1411-12). (Trent, Transcript at omitted). (citations rehearing) petition for development staff The above-mentioned Jenkins "[t]he opinion refers The court's development professional plan mirrors class, children representing the plan practices classroom plan at 722. Ante School District.” City, Missouri The educational being pursued. presently case, cur- and the of this evidence Under the were programs schools effective program and by the being advanced arguments vestige rent raising test scores student on focused view, class, is, certain my almost it only current making people accountable. represent interests not now something class does appear to have plan that does KCMSD. the children all of the assessment order is in the 1985 equivalent

739 a lawful application of the clear mandates tion in deciding unitary status was “wheth- Court in Jenkins III. judicial er retention of control is necessary practicable or to achieve compliance with plans

Even if the adopted by the court decree.” Id. at 112 S.Ct. 1430. conceivably could close the achievement Additionally, as we have said in gap, other dis- KCMSD has fulfilled its constitutional cases, crimination when a obligations state remedy takes inde- discrimination pendent extent action that will practicable. Under address the court’s contin- concerns, remedial gency, the issue before the court is wheth- step should plans er the have been implemented aside. See Dist., satis- Liddell v. Special Sch. factorily. The district court’s 149 F.3d Cir.1998). November 1-2,1999, hearing 7, 2000, and the January These findings make it clear the district hearing demonstrate that they have been. presence court’s litigation is long- no After the hearing, November er necessary to achieve constitutional ob- court found the State’s pro- accreditation jectives and the State has adequately ad- “(1) is: cess based standards that are dressed the court’s remaining remedial fully consistent with the desegre- Court’s result, concerns. As a the district court (2) gation orders; attempt to infuse was correct in finding that unitary status accountability in the KCMSD that fully is had been achieved. consistent with the Court’s desegregation In an effort to dodge or obfuscate the orders; (3) unlikely to engender the real case, issues of class, as earlier high degree negative consequences that indicated, complains that it was a violation prevent could compliance with the United process due and reversible error for the States X, Constitution.” Jenkins 73 court to dismiss the case holding without F.Supp.2d at 1077. previously contemplated and announced These holdings have not appealed been evidentiary hearing.22 This argument And, parties. if they have specious and supported is not by the law of been, they are clearly supported by the this or any other circuit. At the remedy record. The court testimony heard from stage aof school desegregation case, the Joyner Dr. Marilou Depart- Missouri’s proceeds equitable under its ment Elementary and Secondary Edu- authority, controlling the outcome of the cation, responsible which is for evaluating litigation with a injunction-like series the school district and making recommen- court, orders. in past This opinions in this dations about accreditation. Dr. Joyner case, has described the broad and continu- testified all five of the court-approved ing equitable authority of the district court plans conform state accreditation re- “as by practical ‘characterized flexibility quirements. Additionally, KCMSD of- in shaping its remedies and a facility fered evidence and neither the class nor for adjusting and reconciling public and the court disputed the showing private needs.’ Milliken v. Bradley, 433 firmly committed to continue with the 267, 288, U.S. 97 S.Ct. 53 L.Ed.2d implementation of plans approved (1977) 745 (quoting Brown v. Board of the district court as the way best to meet Educ., 294, 300, U.S. 75 S.Ct. the state standards-a necessary step to (1955)).” L.Ed. XIV, avoid implementation eventual of the de- 600; F.3d see also Jenkins v. accreditation threat. (8th Cir.1991). 931 F.2d Pitts, Freeman U.S. (1992), Furthermore, L.Ed.2d 108 an evidentiary hearing

Supreme Court stated that one of the fac- was required, not the district as court had tors that should inform the court’s discre- all the requisite evidence it before for true, forth, It is 19, as the court 1999, 24, ing July 1999, sets there 22. August 3, 2000, were 26, January discussions of a August hear- 1999. 740 upon holding, based unitary status court’s par- determination. a reasoned

making An correct. record, clearly the entire ac- such may take court ticular, a district repre- purportedly educational underlying the sees court if tion the jure de long eliminated vestige of a sents changed. See have legal issues or factual established not been has segregation 299, 312 Texas, F.3d 158 v. States United ap- been, currently with it if has even 46 Klevenhagen, Cir.1998); v. (5th Alberti be it will not programs, educational proved Cir.1995); (5th United 1347, 1366 F.3d much mitigated, indeed, be and, cannot 1497, 1506 Miami, 2 F.3d City States v. “ idea that eradicated. less Cir.1993). judicial discre- ‘Sound done years, twenty-three now, after has the modification may call tion the “remedy practicable everything circum- decree if injunctive of an terms practica- the extent violation [earlier] fact, obtaining or of law stances, whether clearly is clearly ble,” erroneous-it not is or changed, ” have issuance time of its at held to have other- For court correct. v. arisen.’ have since new ones Rufo an have been record would on this wise Jail, U.S. County Inmates of Suffolk discretion. abuse of 748, 116 L.Ed.2d 380, 367, 112 S.Ct. imposed being Employees Railway requirements (1992) All current (quoting 368, 647, beyond 642, well 81 S.Ct. litigation extend U.S. Wright, 364 this of distant (1961)). violations circumstances Such remedies lawful L.Ed.2d And, case segregation. jure this case. arisen in of de obviously acts have judge who district federal about a is 1999, after 21, well On October holding by not mistake procedural made a January potential aof discussions court’s entailing hearing evidentiary yet another changed major event a hearing, taxpayer additional thousands countless litigation. of this scope nature time, attorney time, staff for court dollars Education Board of State The Missouri about It is expert witnesses. fees and accredita- educational withdraw voted to longer no court federal matters a May tion of itself in. to involve right legitimate picture the educational into insert itself to follow time long past It is the State’s As result City. in Jen Court admonition motion made action, quickly the KCMSD au local state “‘restore kins III this action to have court in the district system aof to the control thorities The district initio. void ab declared compliance operating [now] that is evi- immediately and held responded ” 101, 115 at U.S. Constitution.’ 1 and hearing November dentiary Freeman, at 503 U.S. (quoting S.Ct. 1430). “Returning schools S.Ct. the ac- through appearance The State’s authorities of local control to the dramatically altered process creditation to re is essential date practicable earliest With litigation. landscape of gov in our accountability true their store require- and State plans court-approved Freeman, system.” ernmental other, as accord, one with the ments 490, 112 nec- noted, every of evidence item earlier I would affirm unitary. The KCMSD inwas unitary status to determine essary Thus, court.23 court. place before hearing evidentiary an is whether banc alter- upon bent court seems 23. Since Whip- conducted should been course, one addition- proper to make isit nate view, So, decision, my to his ple prior in its footnote The court al observation. concur- Judge Wollman’s Chief footnote unnecessary to discuss it finds states Sheppard Ar- Judge Morris joined rence concern- Judge Whipple’s order the merits signal a clear dissent should nold and Although explicitly ing unitary status. to set free he is now Judge Whipple that only stated, presumably because this is a reasonable hearing accommodates date that en majority of the by a reached issue preparation period parties panel and to then opinion which was vacated hear and decide the case, status KCMSD grant of en banc consideration in this free and any verbiage clear of contained in LOKEN, Judge, Circuit 101, whom 515 U.S. at 115 S.Ct. 2038 (emphasis BEAM, Judges, original). remanded, BOWMAN and Circuit The Court in structing district join, court “that dissenting. end purpose only is not remedy ‘to the viola I dissent. Missouri respectfully In tion’ practicable, to the extent but also ‘to Jenkins, 70, 515 U.S. 115 S.Ct. 132 restore and local state authorities to the (1995) (Jenkins III), L.Ed.2d 63 the Su system control of a school that is operating ” preme Court that'much remedy held in compliance with the Constitution.’ Id. imposed by the district upheld court and 115 S.Ct. quoting Freeman v. panel by a of this court beyond went the Pitts, 467, 489, 112 1430, 118 permissible bounds of an equitable school (1992). L.Ed.2d 108 decree. The desegregation Court defined remand, On the district court up took scope appropriate of an remedy: question of an alleged gap achievement between black white students the proper response by the District prior KCMSD. Its findings as to vestig Court should have been to eliminate to by es—as Supreme determined practicable the extent the vestiges of Court —were limited to finding system- jure de prior segregation within the wide reduction student achievement. systemwide KCMSD: reduction in Yet the court district on remand did student achievement and the existence make the critical finding achieve racially identifiable with a schools ment gap among students within population of over 90% black students. a vestige was also of discrimina tion with causal jure de “a link to the 515 U.S. at 115 S.Ct. 2038. Among the III, being violation remedied.” remedial measures the Court reversed Instead, 515 U.S. at 115 S.Ct. 2038. a mandate to fund “quality pro- education the district court held that “the plaintiffs grams.” In rejecting attempt this court’s are entitled to the presumption cur fill gaps in the district court’s disparities rent causally pri- related to issue, analysis Supreme of that Court or segregation, and proving the burden of cautioned: otherwise rests on the defendants.” Jen Although the District Court has deter- Missouri, kins v. 959 F.Supp. that “[sjegregation mined has caused a (W.D.Mo.1997). Having ducked the criti system wide reduction in achievements cal question, causation the district court KCMSD,” the schools of the 639 proceeded quantify present ef “race F.Supp. it never has identified the fect” of equivalents 2.6 normalized curve incremental effect that segregation has (NCEs) and order that it be remedied. A had minority student or achievement panel of Jen again court affirmed. goals specific quality edu- kins v. 122 F.3d 588 Cir. 1997).24 cation programs. gap The order to close pressed by the achievement nine all Justices for decrees effectively ignored 2.6 require NCEs ex- distaste a certain level perfor- of statistical regime ment, created view, court and this district my will seem- supervision law of of federal court Supreme Court’s violated as- case was then end. The presume never ingly in 1997 deciding

the case recog- judge, is a who gap a new district signed achievement present-day that a mandate, gap jure segregated de nized vestige of the pri- law predecessor under Missouri his imposed system improperly maintained shifting the bur- frus- years ago, The result to 1954. three or arid this court some place on KCMSD was to directive proof Court’s den trates part that no proving to lo- impossible burden this school promptly restore ironically is present-day when KCMSD Accordingly, cal control.27 —which City than the in Kansas less' significantly not meet that could virtually admitted at norm, F.Supp. 1158—is 959 see national foreseeable mandate for the the 2.6-NCE jure segregation to de causally linked unitary future, court declared to Save See Coalition past. the distant now decides Sadly, this court status. Educ., 90 F.3d v. Children Our Supreme of disregard for perpetuate its Cir.1996); (3d Free- see also 752, 776-77 III re- in Jenkins Court’s instructions 503-06, 467, Pitts, 112 U.S. 503 man v. litigation over open-ended more quiring (1992) (Scalia, 1430, L.Ed.2d 108 118 S.Ct. complied with an whether KCMSD Court has J., concurring).25 condition present-day remedy order on defen- proof of this burden only placed vestige proved to be that has never been that resolving lingering claims dants when I af- would jure segregation. de prior were ves- imbalance or racial segregation firm. Even in segregation.26 jure of de tiges has stated cases, the Court those “[a]s de diminishes presumption

causal remote in becomes more

jure violation 496, Freeman, 112 at 503 U.S.

time.” 503-06, 1430; 112 S.Ct. id. at see

S.Ct. III, (Scalia, J., Jenkins concurring);

1430 (Thomas, 118, 115 2038 S.Ct.

515 U.S. at

J., concurring). proof on an the burden

By shifting achieve- such as student

ancillary issue they they so real must be but nonetheless before on standardized tests mance III, jure to the de violation link U.S. causal 515 found. See Jenkins status can be III, 96, 148-49, U.S. at being Jenkins 515 101-02, 2038; remedied.” S.Ct. id. at 115 115 J., S.Ct. (Souter, 115 dissenting). S.Ct. 2038 Fordice, 717, 505 U.S. States v. 26. See United finding of a district court based 25.The 2727, 738-39, L.Ed.2d 575 S.Ct. 112 120 expert opinion quantitative 2.6-NCE 494, Freeman, (1992); U.S. at 112 S.Ct. 503 likely under evidence inadmissible Brinkman, 1430; Dayton v. 443 Bd. Educ. Inc., Pharms., 509 Dow Daubert v. Merrell 2971, 537, 526, L.Ed.2d S.Ct. 61 720 U.S. 99 2786, 469 125 L.Ed.2d S.Ct. U.S. 113 (1979); 413 Keyes v. School No. U.S. Dist. (1993). Bd. People v. Who See Care Rockford 189, 209-10, 548 37 L.Ed.2d 93 S.Ct. 528, 534, Educ., 537-38 F.3d Charlotte-Mecklenburg (1973); Bd. Swann v. event, Cir.1997). wholly evidence 1, 26, Educ., S.Ct. U.S. por any race-related failed to establish (1971). L.Ed.2d 554 gap was caused the achievement tion of segregation. United States prior jure See de Cir.1999), Yonkers, (2d goals unrelated upon academic City F.3d "Insistence - -, denied, unwarrant- legal segregation to the effects rt. U.S. ce (2000). day the KCMSD will vestiges ably postpones the when "The L.Ed.2d III, operate on its be able to own.” the law segregation that concern 115 S.Ct. 2038. intangible may in a school case subtle

Case Details

Case Name: Chinyere Jenkins v. School Distric of KC

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 15, 2000

Citation: 216 F.3d 720

Docket Number: 00-1048, 00-1288

Court Abbreviation: 8th Cir.