Chinyere Jenkins v. AFT

___________

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*
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, *

-2-
 *
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 *

-3-
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 *

-4-
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, *

-5-
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 *

-6-
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 court1
establishing a remedy plan and budget for the 1996-97 school year in the
ongoing Kansas City, Missouri School District desegregation case. The
State also appeals from the district court's order phasing out the Missouri
City voluntary interdistrict transfer program. The Jenkins Class cross-
appeals from the order phasing out the Missouri City program and from the
order

1
The Honorable Russell G. Clark, Senior Judge, United States
District Court for the Western District of Missouri.

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prohibiting use of desegregation funds for marketing and recruitment
efforts directed solely at nonminority students living within the KCMSD who
attend private and parochial schools. We affirm the district court's order
with respect to the budget for the 1996-97 school year, remand the Missouri
City Program issue for further consideration, and reverse and remand the
order relating to recruiting resident nonminorities who attend private
schools.2

In Missouri v. Jenkins, 115 S. Ct. 2038 (1995) (Jenkins III), the
Court reversed an order funding salary increases for KCMSD personnel, which
the district court had imposed to increase KCMSD's desegregative
attractiveness. Id. at 2055. The Court also reversed an order funding
quality education programs because the order was based on findings that the
student achievement levels were at or below national norms based on test
scores. The Supreme Court remanded for reconsideration of the quality
education order 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 that its end purpose is not only `to remedy the violation' to the
extent practicable, but also `to restore state and local authorities to the
control of a school system that is operating in compliance with the
Constitution.'" Id. at 2056 (quoting Freeman, 503 U.S. at 489).

After the Supreme Court's remand, the State moved for an order
declaring the KCMSD unitary and relinquishing jurisdiction over the entire
case. Moreover, on May 21, 1996, the State and the KCMSD entered into an
agreement that the State would continue to make

2
The orders on appeal are the July 15, 1996 order with respect
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
establishing a phaseout plan for the Missouri City Voluntary
Interdistrict Transfer Plan. The Jenkins Class moved to alter or
amend this order, and the district court denied the motion on May
31, 1996.

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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 the
agreement. In light of the magnitude of the issues raised by the
unitariness motion and the settlement agreement, the district court set
both matters for a hearing to commence on January 13, 1997.

In the interim a budget for the upcoming 1996-97 school year was
established. The parties were able for the most part to agree on a budget
as an interim measure. The parties agreed to a 1996-97 remedy plan and
budget that reduced the KCMSD budget to $35 million below the preceding
year, subject to a list of items on which the Jenkins Class disagreed with
the other parties regarding the necessity of expenditures. That list
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 parties agreed that although there would have to be a hearing to
resolve the disputed budget issues, the weighty issues raised by the
Supreme Court opinion would be reserved for later resolution. In
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 State
denies that there are such remaining effects. All parties
agree that they will not present any evidence at the June 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 the
parties or ordering implementation of any desegregation
remedies proposed by any of the parties for the 1996-97 school
year, and that no party will challenge any remedy component
currently requested by any party and ordered by the Court for
the 1996-97 school year on that basis.

The district court generally approved this stipulation, but the
court disapproved the agreement to reserve consideration of the Missouri
City transfer program and the expenditure of funds for advertising aimed
at nonminority private and parochial school

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students within the KCMSD. The court found that it was in the best
interests of all the parties to resolve those two issues sooner, rather
than later. Order of March 7, 1996, slip op. at 2. Therefore, the
court did not consider those two issues to be subject to the
Stipulation.

In considering the Missouri City transfer program, the district
court concluded that the program was a type of interdistrict relief not
permitted by the Supreme Court's reasoning in Jenkins III. Slip op. at
3. However, the district court found it necessary and equitable 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 this
process of winding down the Missouri City program resolves the
difficulties of this situation in a reasonable equitable
manner.

Id. at 5.

The court next considered the permissibility of using desegregation
funds for advertising aimed at attracting nonminority students who
reside in the KCMSD but attend private or parochial schools. The court
held: "The State is correct that Jenkins III forecloses the use of
desegregation funds for recruitment efforts where the sole purpose of
the particular recruitment project is aimed at encouraging resident
nonminorities currently in private or parochial schools to enroll in the
KCMSD." Id. at 5. The court held, however, that the recruitment and
marketing department of the KCMSD still had a legitimate function in
encouraging voluntary transfer of students

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within the KCMSD itself to magnet schools. Id. at 6-7. To the extent
that this sort of advertising 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 and
marketing department, but ordered that the department should not direct
any efforts solely at recruiting nonminority students who reside in the
KCMSD but attend private schools. Id. at 7-8. The court also stated
that it considered the State to have waived any objection to this item
for the 1996-97 school year by the terms of the Stipulation. Id. at 7.

In a later order, the district court reached the items that had
been reserved for its consideration by the terms of the Stipulation.
The court considered the Jenkins Class's proposal to restore funding for
the extended day program, less $1 million the Jenkins Class estimated
the KCMSD could collect by charging fees for enrollment in the program
for children who do not qualify 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:

Plaintiffs presented substantial evidence in support of the
current Extended Day Program. The KCMSD does not dispute the
sincerity or accuracy of the testimony elicited by plaintiffs.
. . . The Court was presented no evidence that the Extended
Day Program as a whole has become ineffective or is an
improper component of a desegregation remedy.

Id. at 9. The court rejected 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 Jenkins Class's proposal would result in charging
some victims for a remedy to which they were entitled. Id. at 9-10.

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 Next, the court considered the Jenkins Class's objections to the
fourth-round budget cuts. KCMSD had proposed budget cuts in layers,
with the first three rounds of cuts being the responsibility of the
administration at the affected 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 its
decision on the testimony before it. Principals of some of the affected
3
schools testified that the fourth-round cuts would damage the integrity
of their schools' magnet themes. Id. at 11. Therefore, the court
ordered the fourth-round budget cuts to be reinstated at those seven
schools. Id. Not all principals were called to testify. Consequently,
the court was unable to make determinations about the advisability of
the fourth-round budget cuts at the schools whose principals did not
testify, and directed the Desegregation Monitoring Committee 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 to
maintain permanent substitutes at each of the district's schools. The
court found that permanent substitutes were not generally necessary
except in the foreign language magnets. These schools depend on
immersion in the foreign language, which entails teaching substantive
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.

3
The schools were Trailwoods Elementary, Knotts Elementary,
North Rock Creek/Korte, J.A. Rogers Middle School, Kansas City
Middle School for the Performing Arts, the Foreign Language Middle
School, and East High School.

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 I.

A.

The State attacks the district court's reinstatement of the extended
day program, the fourth-round budget cuts in the seven schools, and the
permanent substitutes in the foreign language magnets. The State
contends that these expenditures violate the command of Jenkins III to
consider the interest in local autonomy and to limit the aim of remedial
programs to restoring the victims of de jure segregation to the position
they would have occupied absent the constitutional violation. These
arguments depend on antecedent assumptions or findings about what
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 KCMSD have
a continuing obligation to eliminate the remaining effects of
de jure segregation to the extent practicable. The State
denies that there are such remaining effects. All parties
agree that they will not present any evidence at the June 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 the
parties or ordering implementation of any desegregation
remedies proposed by any of the parties for the 1996-97 school
year . . . .

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

By arguing that Jenkins III requires the district court to take
action without regard to the existence and extent of

-13-
vestiges of segregation, the State shows an imperfect understanding of
the Jenkins 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. Bradley, 433 U.S. 267,
280-81 (1977) (Milliken II): (1) the nature of the remedy must be
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. 115 S. Ct. at 2049.
The Supreme Court emphasized that remedial orders should not be crafted
taking the first factor into consideration without adequate regard for
the second two. Id. This certainly does not lead to the conclusion
that such orders can be crafted only by reference to the third factor,
without consideration of the first two factors. Yet, the State would
have us assess the propriety 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 there 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.

Despite its Stipulation, the State argues that the court erred in
ordering relief that benefits students who are not victims of
segregation. This assumes the very fact that the State stipulated would
not be resolved--whether there exist to this day vestiges or after-
effects of the unconstitutional system that still affect student
achievement levels in the KCMSD. The Supreme Court mentioned that
students in kindergarten through grade 7 have always attended AAA
schools, and that the older students have received remedial education
programs for up to seven years. Jenkins III, 115 S. Ct. at 2056.
However, the

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Supreme Court did not say that there were no remaining victims of the
after-effects of segregation. Rather, the Court remanded for further
proceedings. "But these are 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 work
done and the KCMSD unitary is grossly premature, as well as inconsistent
with the Stipulation, which acknowledged this to be a disputed question.
Until we know the answer to that question, we certainly cannot say which
students are affected by vestiges of segregation and in what way.
Consequently, the State's contention that the district court's orders
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 district
court approved, we can only view the 1996-97 budget as an interim
measure. Clearly, the matter had to be resolved before the school year
and yet, a full adjudication of the constitutional questions inherent in
the matter would require hearings and findings which could not be
achieved before the school year began. In response to this dilemma, the
parties entered into the Stipulation reserving the constitutional
questions for a later day. With this compromise before 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 substitutes, the court
decided that doing away with the particular programs would undermine the
magnet themes. In the case of the extended day program, it decided
simply that the program was beneficial to the students. The Supreme
Court certainly did not disapprove either of the idea of magnet schools,
see Jenkins III, 115 S. Ct. at 2051 ("We previously have approved of
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

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District Court should have been to eliminate to the extent practicable
the vestiges of prior de jure segregation within the KCMSD: a system-
wide reduction in student achievement and the existence of 25 racially
identifiable schools. . . ."). The Supreme Court only held that the
appropriateness of orders pursuing those goals must be ascertained by
balancing all three Milliken II factors, and the State stipulated that
the district court would not determine one of those factors in
adjudicating the propriety of the three programs in question.

In sum, the State's arguments attacking the approval of the three
disputed programs for the 1996-97 year depend on a reasoning process
that the district court could not complete because of the parties'
Stipulation. The district court appropriately considered the propriety
of those programs as an interim measure, as was contemplated by the
parties' agreement. We therefore affirm the district court's order
regarding the extended day program, permanent substitutes in the foreign
language magnets, and the restoration of the fourth-round budget cuts in
the seven schools.

B.

The State argues that the record evidence showed the extended day
program is "just babysitting," and that therefore its only possible
purpose is to attract suburban students. While the extended day program
undeniably serves a child care function, there was a great deal of
testimony before the court that the program also serves an educational
purpose. We have reviewed the testimony the State cites, and it
certainly does not compel the conclusion that the extended day program
only exists to attract suburban students.

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 C.

The State also argues that the district court's order of July 15,
1996 contravenes Jenkins III, and that the district court's authority is
simply to 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 State argues that Jenkins III requires restoration of local
control at the earliest practical date. The argument is based on the
State's reading of Jenkins III that "the District Court must bear in
mind that its end purpose is . . . to restore state and local
authorities to . . . control," 115 S. Ct. at 2056 (quotation omitted).
The State argues that the Supreme Court emphasized the vital national
tradition of local autonomy of school districts and ordered that no
additional programs be imposed 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 the
language of the Supreme Court in a manner that presents less than a full
and fair reading of the Court's holding. The Court in Jenkins III
certainly refers to the restoration of local control on several
occasions, see, e.g., id. at 2054, 2056, and the Court emphasizes the
goal of returning the school district to local control, but the other
part of the equation is that the district court must consider whether
the previously segregated district has achieved partial unitary status.
Jenkins III points out that the State had not sought a declaration of
partial unitary status with respect to quality education programs. Id.
at 2055. In rejecting arguments relating to whether national norms
could be considered in evaluating the success of educational programs
the Supreme Court stated:

-17-
 But this clearly is not the appropriate test to be
applied in deciding whether a previously segregated district
has achieved partially unitary status. See Freeman, 503 U.S.
at 491; Dowell, 498 U.S. at 249-50. The basic task of the
District Court is to decide whether the reduction in
achievement by minority students attributable to prior de jure
segregation has been remedied to the extent practicable. . . .

In reconsidering this order, the District Court should
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 incremental withdrawal
of its supervision in a school desegregation case must be
exercised in a manner consistent with the purposes and
objectives of its equitable power. Among the factors which
must inform the sound discretion of the court in ordering
partial withdrawal are the following: whether there has been
full and satisfactory compliance with the decree in those
aspects of the system where supervision is to be withdrawn;
whether retention of judicial control is necessary or
practicable to achieve compliance with the decree in other
facets of the school system; and whether the school district
has demonstrated, to the public and to the parents and
students of the once disfavored race, its good-faith
commitment to the whole of the court's decree and to those
provisions of the law and the Constitution that were the
predicate for judicial intervention in the first instance.

Jenkins III concludes:

On remand, the District Court must bear in mind that its
end purpose is not only "to remedy the violation" to the
extent practicable, but also "to restore state and local
authorities to the control of a school system that is
operating in compliance with the Constitution." Freeman, 503
U.S. at 489.

115 S. Ct. at 2056.

The last passage above demonstrates that the State, in

-18-
stressing the return to local control, has completely ignored the
Court's direction to engage in the inquiry required by Freeman v. Pitts,
to ascertain whether unitary status has been achieved, whether the
results of segregation have been remedied to the extent practicable, and
whether a school system operating in compliance with the Constitution
may be restored to state and local control.

We thus reject the argument the State makes that Jenkins III has
mandated determination of the issues now before us. The Supreme Court
has made clear in Jenkins III that the State did not seek a declaration
of partial unitary status with respect to the quality education
programs, 115 S. Ct. at 2055, but rather that the case now must be
returned to the district court to make that inquiry.

In view of the 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.

The Jenkins Class cross-appeals, arguing that the district court
erred in prohibiting the use of desegregation funds for marketing and
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
ruled that the desegregative attractiveness discussion in Jenkins III
forbade use of desegregation funding to recruit nonminority private
school students living within the KCMSD, as well as to recruit suburban
nonminorities. The district court reasoned that "private and parochial
schools are essentially districts within themselves," slip op. at 6, and
that therefore spending desegregation money to

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

The Jenkins Class argues that the district court drew incorrect
inferences from Jenkins III in considering private schools to be
equivalent to other public school districts. The Class argues that the
reason the Supreme Court disapproved of interdistrict relief was to
avoid "burdening other public school districts which were not
constitutional violators, not [to protect] independent private
entities." The Class also points out that the district court ruled
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 differences
between private and parochial schools and public schools, and we have
questions with respect to whether they are "essentially districts within
themselves" as found by the district court. We believe, however, that
this issue can be addressed again with a more complete record on remand.

We conclude that the legal underpinning in the district court's
analysis runs contrary to Jenkins III. Jenkins III discussed at some
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 concluded that the interdistrict goal of attracting
students from surrounding districts was an interdistrict remedy for an
intradistrict violation. Id. at 2052.

The following passages from Jenkins III demonstrate the basis for
the Court's ruling:

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 What we meant in Milliken I [Milliken v. Bradley, 418
U.S. 717 (1974)] by an interdistrict violation was a violation
that caused segregation between adjoining districts.

115 S. Ct. at 2052. In Jenkins III, the Supreme Court said that nothing
in Milliken I suggested that 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 III
continued:

Here, the District Court has done just that: created a magnet
district of the KCMSD in order to serve the interdistrict goal
of attracting nonminority students from the surrounding SSD's
and redistributing them within the KCMSD. The District
Court's pursuit of "desegregative attractiveness" is beyond
the scope of its broad remedial authority.4

4
Jenkins III also made the following statements:

The purpose of desegregative attractiveness has been
not only to remedy the system-wide reduction in student
achievement, but also to attract nonminority students not
presently enrolled in the KCMSD. . . .

. . .

The District Court's remedial plan in this case,
however, is not designed solely to redistribute the
students within the KCMSD in order to eliminate racially
identifiable schools within the KCMSD. Instead, its
purpose is to attract nonminority students from outside
the KCMSD schools. But this interdistrict goal is beyond
the scope of the intradistrict violation identified by
the District Court. In effect, the District Court has
devised a remedy to accomplish indirectly what it
admittedly lacks the remedial authority to mandate
directly: the interdistrict transfer of students. 639
F. Supp. at 38 ("`[B]ecause of restrictions on this
Court's remedial powers in restructuring the operations
of local and state government entities,' any mandatory
plan which would go beyond the boundary lines of KCMSD
goes far beyond the nature and extent of the
constitutional violation [that] this Court found
existed").

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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 permissible
expansion of its intradistrict remedial authority through its
pursuit of desegregative attractiveness.

115 S. Ct. at 2053.

This language 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 violations. We do not read
Jenkins III as restricting the KCMSD's efforts to attract back to its
schools those residents of the district who now attend private and
parochial schools. As the Jenkins Class points out, the funding for the
schools under the state procedures is based upon enrollment, and an
increase in enrollment is in the best interest of KCMSD. As the
district court discussed, efforts directed at KCMSD students 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 consequence. See Jenkins III, 115 S. Ct. at 2060 (O'Connor, J.,
concurring).

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

In Milliken I we determined that a desegregation
remedy that would require mandatory interdistrict
reassignment of students throughout the Detroit
metropolitan area was an impermissible interdistrict
response to the intradistrict violation identified.

115 S. Ct. at 2051 (emphasis in last paragraph added).

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issue for further consideration.

III.

The State argues that the district court abused its discretion in
ordering continued funding of the Missouri City Interdistrict Transfer
Program for eight additional years, because it is an impermissible
interdistrict remedy in this intradistrict case. The Jenkins Class
argues that the district court erred in ordering the phaseout of the
program. Only thirteen students participate in this program. No other
suburban schools have accepted minority students from KCMSD.

The district court's order of March 7, 1996, recognizes that the
Missouri City Program is an interdistrict program based upon a
stipulation, and that this stipulation can be modified by changing
circumstances, such as those provided by the Supreme Court opinion in
Jenkins III. Slip op. at 4 (citing Rufo v. Inmates of Suffolk County
Jail, 502 U.S. 367, 390 (1992)). The district court, however, looked to
the limits of this responsibility to determine whether the proposed
modification is suitably tailored to the changing circumstances. Slip
op. at 4-5. In doing so, it rejected the State's argument that the
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 present
participants in the program be allowed to remain with present state
funding until they graduate eighth grade or voluntarily leave the
program.

The State's argument that the court lacks authority to order such
a program is somewhat weakened by its admission in oral argument that
the district court should discontinue the program with reasonable
promptness, at most the completion of the school year in question. The
State's position at least approaches a

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concession that the district court may determine what is reasonable
promptness, and the proper length of the phaseout.

The State makes a robust argument that Jenkins III bars such
interdistrict remedies. On the other hand, the legal underpinning in
the past has been that voluntary plans can be a part of an intradistrict
remedy and that the burden can be placed on the constitutional violator,
in this instance, the State of Missouri.

The Missouri City order was entered on March 7, 1996, one of the
first orders entered by the court 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 the
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 the
arguments in further detail. In view of the State's concession that
some reasonable phaseout is authorized, we think it appropriate to
remand this issue to the district court for further consideration after
the hearing concerning unitary status and the proposed settlement.

. . .

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

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achievement, and the specific goals of the quality education programs.
115 S. Ct. at 2055. It further instructed that the district court
should "sharply limit, if not dispense with, its reliance" on improved
achievement on test scores. Id. It cautioned that the quality
education programs should be tailored to remedy the injuries suffered by
the victims of prior de jure segregation. Id. at 2056.

We think it also appropriate to observe the comment of Justice
O'Connor, who joined in the opinion of the Court, but in her concurring
opinion noted that the Court refrained from addressing the propriety of
all the remedies the district court has ordered, revised, and extended
in the eighteen-year-old history of the case. While these remedies may
be improper to the extent that they serve the goals of desegregative
attractiveness and suburban comparability that were held to be
impermissible, "conversely, the District Court may be able to justify
some remedies without reliance on these goals. But these are questions
that the Court rightly leaves 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.

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