Chinyere Jenkins v. State of Missouri

`

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

_____________

No. 97-1968
_____________

Chinyere Jenkins, by her next friend, *
Joi Jenkins; Nicholas Paul Winchester- *
Rabelier, by his next friend, Paula *
Winchester; Margo Vaughn-Bey, by her *
next friend, Franklin Vaughn-Bey; *
Nicholas C. Light, by his next friend, *
Marian Light; Stephon D. Jackson, by *
his next friend, B. J. Jones; Travis N. *
P e t e r , by his next friend, Debora Chadd- *
Appeals from the United States
P e t e r ; Leland Guess, by his next friend, *
District Court for the
Sharon Guess, * Western District of Missouri.
*
Plaintiffs - Appellants *
*
American Federation of Teachers, Local *
691, *
*
Intervenor below - Appellee *
*
v. *
*
State of Missouri; Mel Carnahan, *
Governor of the State of Missouri; Bob *
Holden, Treasurer of the State of *
Missouri; Missouri State Board of *
Education; Peter Herschend, Member of *
the Missouri State Board of Education; *
Thomas R. Davis, Member of the *
Missouri State Board of Education; *
Robert E. Bartman, Commissioner of *
Education of the State of Missouri; Gary *
D. Cunningham, Member of the *
Missouri State Board of Education; Rice *
Pete Burns, Member of the Missouri *
State Board of Education; Sharon M. *
Williams, Member of the Missouri State *
Board of Education; Betty Preston, *
Member of the Missouri State Board of *
Education; Jacquelline Wellington, *
Member of the Missouri State Board of *
Education; Russell Thompson, *
Member of the Missouri State Board of *
Education; School District of Kansas *
City; Dr. Henry D. Williams, *
Superintendent thereof; Terry M. Riley, *
Member of the Board of Directors; *
Lance Loewenstein, Member of the *
Board of Directors; Marilyn Simmons, *
Member of the Board of Directors; *
Sandy Aguire Mayer, Member of the *
Board of Directors; John A. Rios, *
Member of the Board of Directors; *
Darwin Curls, Member of the Board of *
Directors; Patricia Kurtz, Member of the *
Board of Directors; Edward J. *
Newsome, Member of the Board of *
Directors; Dr. Julia H. Hill, Member of *
the Board of Directors; John W. Still, *
Member of the Board of Directors, *
*
Defendants - Appellees *

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 _____________

No. 97-2078
_____________

Chinyere Jenkins, by her next friend, *
Joi Jenkins; Nicholas Paul Winchester- *
Rabelier, by his next friend, Paula *
Winchester; Margo Vaughn-Bey, by her *
next friend, Franklin Vaughn-Bey; *
Nicholas C. Light, by his next friend, *
Marian Light; Stephon D. Jackson, by *
his next friend, B. J. Jones; Travis N. *
Peter, by his next friend, Debora Chadd- *
Peter; Leland Guess, by his next friend, *
Sharon Guess; *
*
Plaintiffs - Appellees *
*
American Federation of Teachers, Local *
691, *
*
Intervenor below - Appellee *
*
v. *
*
State of Missouri; Mel Carnahan, *
Governor of the State of Missouri; Bob *
Holden, Treasurer of the State of *
Missouri; Missouri State Board of *
Education; Peter Herschend, Member of *
the Missouri State Board of Education; *
Thomas R. Davis, Member of the *
Missouri State Board of Education; *
Robert E. Bartman, Commissioner of *
Education of the State of Missouri; Gary *
D. Cunningham, Member of the *

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Missouri State Board of Education; Rice *
Pete Burns, Member of the Missouri *
State Board of Education; Sharon M. *
Williams, Member of the Missouri State *
Board of Education; Betty Preston, *
Member of the Missouri State Board of *
Education; Jacquelline Wellington, *
Member of the Missouri State Board of *
Education; Russell Thompson, Member *
of the Missouri State Board of *
Education; *
*
Defendants - Appellants *
*
School District of Kansas City; Dr. *
Henry D. Williams, Superintendent *
thereof; Terry M. Riley, Member of the *
Board of Directors; Lance Loewenstein, *
Member of the Board of Directors; *
Marilyn Simmons, Member of the Board *
of Directors; Sandy Aguire Mayer, *
Member of the Board of Directors; John *
A. Rios, Member of the Board of *
Directors; Darwin Curls, Member of the *
Board of Directors; Patricia Kurtz, *
Member of the Board of Directors; *
Edward J. Newsome, Member of the *
Board of Directors; Dr. Julia H. Hill, *
Member of the Board of Directors; John *
W. Still, Member of the Board of *
Directors, *
*
Defendants - Appellees. *

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 _____________

Submitted: May 27, 1997
Filed: August 12, 1997
_____________

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

JOHN R. GIBSON, Circuit Judge.

After the Supreme Court's decision in Missouri v. Jenkins, 515 U.S.
70 (1995) (Jenkins III), the State of Missouri filed a motion in this
lengthy school desegregation case asking the court to declare the Kansas
City, Missouri School District unitary, to dissolve all injunctions, and
to relinquish jurisdiction of the case. Less than a month later, the State
and the KCMSD entered into an agreement under which the State would pay the
KCMSD a total of $320 million over three years and be released from any
further obligation in this desegregation litigation. The court held a
hearing from January 13 through January 31, 1997, receiving testimony from
a large number of witnesses and a considerable volume of documentary
evidence. On March 25, 1997, the district court1 entered its order denying
the motion for unitary status in all respects except extra-curricular
activities, but approving the agreement between the State and the KCMSD.
Jenkins v. Missouri, 959 F. Supp. 1151 (W.D. Mo. 1997). The Jenkins Class
appealed the ruling approving the agreement.2 The State appealed the
district court's order denying a declaration of unitary status. We affirm
the district court's order.

1
The Honorable Russell G. Clark, Senior Judge, United States District Court for
the Western District of Missouri.
2
The Jenkins Class moved for a stay of the court's order. We took the motion
for stay with the case until we had heard oral argument. Because we have now decided
the case, the motion for stay is moot.

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 In discussing the State's motion for unitary status, the district
court first outlined its earlier orders finding that there had been a
system-wide reduction in student achievement in the schools of the KCMSD.
959 F. Supp. at 1153. It looked to its earlier orders identifying the
purpose of the public schools as furnishing quality education to their
students and identifying educational achievement as a proper goal in a
desegregation remedy. Id. (citing Jenkins v. Missouri, 593 F. Supp. 1485,
1506 (W.D. Mo. 1984); Jenkins v. Missouri, 639 F. Supp. 19, 24 (W.D. Mo.
1985), aff'd as modified, 807 F.2d 657 (8th Cir. 1986), cert. denied, 484
U.S. 816 (1987)). The court then briefly reviewed the progress made in the
KCMSD. 959 F. Supp. at 1156.

The court determined that the burden of proof was on the State, the
adjudged constitutional violator, to show that no vestiges of prior
discrimination remained in the KCMSD. Id. at 1156-57. It pointed out that
once a court has found an unlawful dual school system, the plaintiffs are
entitled to a presumption that existing disparities are causally related
to prior segregation, and the burden of proving otherwise rests on
defendants. Id. at 1157 (citing Dayton Bd. of Educ. v. Brinkman, 443 U.S.
526, 537 (1979); Keyes v. School Dist. No. 1, 413 U.S. 189, 211 n.17
(1973)). One of the vestiges the court found was an achievement gap
between black and white students in the KCMSD. The State argued that the
Jenkins Class should bear the burden of proving that this student
achievement disparity was caused by the State's constitutional violation.
The court rejected the State's arguments, concluding that the achievement
gap issue should be governed by the same burden-shifting rules as the other
factors, and that the State must prove it did not cause the disparity. Id.

The court analyzed in detail the testimony on this issue, including
expert opinions. The court found that a portion of the achievement gap was
attributable to de jure segregation and that unitary status had not been
attained in this respect. The court ordered the KCMSD to eliminate that
portion of the achievement gap within three years. Id. at 1165.

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 The court then turned to an analysis of the Green factors.3 With
respect to student assignments or the racial isolation vestige, the court
recognized testimony that the KCMSD had realized a high degree of racial
balance, but pointed out that the schools lost significant enrollment of
white suburban students in the 1995-96 school year following the Jenkins
III decision. Id. at 1166. Moreover, the racial imbalance index showed
an increase in 1996 for both elementary and secondary schools. Id. The
court looked at testimony that the KCMSD must develop and implement a
student assignment system focusing exclusively on the pupils residing in
the district, and that this could be accomplished within a two- to three-
year period. Id. The district court concluded that the KCMSD had not yet
achieved unitary status with regard to the racial isolation vestige, but
that within a three-year period it would be possible to assess the effects
of Jenkins III on minority enrollment. Id. at 1167.

With respect to faculty and staff assignments, the district court
recounted the testimony that the district had maintained a substantial
degree of racial balance in faculty assignments. Id. at 1166. However,
the court also recognized testimony that, during recent years, while the
secondary schools fell within the desired variance level, the elementary
schools had shown a steady decline in compliance. Id. at 1166. The court
held that the steady decline at the elementary school level of a balanced
faculty warranted further investigation, and so "the court [found] that the
KCMSD has not yet achieved unitary status as to faculty assignments." Id.
at 1168. However, the court also stated that the KCMSD should be able to
remedy this defect in a period of three years. Id.

3
In Green v. County School Board, 391 U.S. 430, 435 (1968), the Supreme
Court stated that school districts were obliged to desegregate all aspects of their school
systems, including: student assignments, faculty and staff assignments, transportation,
facilities, and extra-curricular activities. Disparities in these five aspects of a school's
operations are the most important indicia of a segregated school system. See Jenkins
III, 515 U.S. at 88.

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 With respect to the facilities of the KCMSD, the court observed that
the capital improvements already ordered were almost, but not entirely,
completed. The court held that declaration of unitary status should be
withheld until the ordered improvements were completed, which would
certainly be accomplished in less than three years. Id. at 1168.

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

As to the State's motion for unitary status regarding extra-
curricular activities, the court held that the State has carried its burden
of proving the KCMSD unitary in this respect. The adverse parties seem to
agree on this issue. Id. The court rejected the State's argument in all
other respects.
The court then considered whether to approve the agreement between
the State and the KCMSD releasing the State from liability upon the payment
of $314 million (plus an additional $6 million added by the court after the
agreement was entered). Id. at 1152. The court looked at various figures
reflecting the spending level in the KCMSD per pupil as compared with the
other largest school districts in the United States. Id. at 1170. It
recited the testimony of Dr. John Murphy that the transition funding
provided under the agreement would be sufficient to allow a systematic and
orderly transition period during which the KCMSD could become self-
sufficient. It looked to Dr. Murphy's testimony that if the agreement were
approved, the KCMSD would have sufficient funds not only to offer quality
education, but to make the curriculum and other reforms necessary to
improve student achievement. Id. The court also looked at testimony
concerning the possibilities of the KCMSD achieving other savings, such
as reduced transportation expenditures. The fact that much of the capital
improvement program had been paid for out of current revenue, rather than
debt,

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created a situation in which the district would have to pay little for debt
service in future years. Id. at 1171. The court also considered that the
racial isolation vestige could be rectified in two years, and that many of
the goals of the quality education programs had been reached. Id. at 1171-
72.

The district court rejected arguments of the Jenkins Class that the
court had no authority or jurisdiction to approve the agreement. Id. at
1172. The district court concluded that, considering the KCMSD's proximity
to unitary status, any remaining obligation of the State to the KCMSD
school children would be discharged by the payment of the funds provided
in the agreement. It observed that the State has been responsible for the
funding, and not the implementation, of the desegregation programs. The
court therefore modified the joint and several liability finding to make
the KCMSD liable individually. The court decreed that the State's
obligation shall end and the State will be entitled to an order from the
court dismissing it from the action when it has paid the sums provided for
in the agreement. Id.

While the court had released the State from further obligations,
except for the payment of funds, it suggested that Dr. Robert Bartman of
the Department of Elementary and Secondary Education of Missouri had the
educational expertise and familiarity with the history of the KCMSD
desegregation effort to provide guidance during the transition period, and
that the Department should give approval before decisions are made about
the necessary budget cuts. Id. at 1178. This was made as an appeal to the
Department and Dr. Bartman's sense of duty. The court concluded that if
the Department and Dr. Bartman declined the court's appeal, then the court
would seek the Department's help in finding a special master to oversee the
KCMSD. Id. at 1179. We are informed that the Department and Dr. Bartman
have declined this invitation. The issue, however, remains before the
district court, and while the district judge presiding over this case for
many years has turned over superintendence of the

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case to another judge,4 we are satisfied that the urgency of timely
disposition of further supervision over the district will be promptly
considered.

I.

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

Generally, once there has been a finding that a defendant established
an unlawful dual school system in the past, there is a presumption that
current disparities are the result of the defendant's unconstitutional
conduct. See Keyes v. School Dist. No. 1, 413 U.S. 189, 208-09 (1973);
Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 537-38 (1979); Freeman v.
Pitts, 503 U.S. 467, 494 (1992); see also United States v. Fordice, 505
U.S. 717, 744 (1992) (O'Connor, J., concurring). Only when a school
district has attained unitary status does the burden of proving disparities
were caused by intentional segregation shift back to the plaintiffs. See
School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987); see also
Oliver v. Kalamazoo Bd. of Educ., 640 F.2d 782, 810 (6th Cir. 1980) (error
in assigning burden of proof to defendants where defendants' liability
under earlier decree "had been satisfied").5 If, however, a defendant is
joined after the finding of liability, that defendant is, naturally, not
subject to the presumption applied to adjudicated constitutional violators.
See United States v. City of Yonkers, 833 F.

4
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
5
In Kalamazoo Board of Education, 640 F.2d at 808-09, another reason for
putting the burden of proof on plaintiffs was that they were seeking additional relief,
whereas the original decree stated that any party seeking to modify the decree would
bear the burden of "justifying changes."

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

The State contends that the general rule of presuming causation
applies to disparities of the sort mentioned in Green, 391 U.S. at 435, but
not to disparities in student achievement. The State contends this
distinction is appropriate because the defendants have control over the
Green factors, such as student assignment, equality of facilities, and
transportation, whereas the defendants do not have control over student
achievement. The State argues that too many external factors affect student
achievement to require the State to prove that it did not cause low
minority achievement.

This argument is not persuasive. As the Supreme Court noted in
Jenkins III, the Green factors can also be affected by forces outside the
defendants' control:

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

515 U.S. at 102 (citation omitted). The task of the court in analyzing
either type of disparity is to determine whether it was caused by
defendants' misconduct or by external factors. The burden of proof rules
are simply the framework for making that inquiry.

There is, nevertheless, a meaningful distinction between the Green
factors and the student achievement factor. Disparities in the Green
factors, such as student assignment, inherently define a dual school
system, which could not exist without such disparities. See Coalition to
Save Our Children v. State Bd. of Educ., 90 F.3d 752, 776 (3d Cir. 1996)
(Green factors are per se vestiges of de jure segregation). On the other

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hand, disparity or impairment in student achievement may or may not be
found in a particular case and may or may not be the result of a
segregated or dual system. For this reason, the presumption of causation
will only be applied to student achievement disparities if the court has
already specifically found that student achievement in the district has
suffered as a result of the dual system. Thus, in Coalition to Save Our
Children, the district court had not included disparity in student
achievement as a subject for ancillary (i.e., non-Green) relief in its
remedial decree. When the defendants later moved for a declaration of
unitary status, the Third Circuit held that the plaintiffs had the burden
of proving that disparities in student achievement were vestiges of de jure
segregation. Id. at 776-77. Accord City of Yonkers, 833 F. Supp. at 222
n.3 (no initial finding that segregation caused reduction in student
achievement; plaintiffs bear burden of showing causation).

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

The Court finds the inferior education indigenous of the state-
compelled dual school system has lingering effects in the
Kansas City, Missouri School District.

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

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

. . . .

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

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639 F. Supp. at 24, 28. Therefore, the Jenkins Class was entitled to a
presumption that current deficiencies in student achievement were a
continuation of the vestige already identified. See Baliles, 829 F.2d at
1311-12 (rejecting argument that presumption of causation only applies to
Green factors, not to student achievement). But see People Who Care v.
Rockford Bd. of Educ., No. 89 C 20168, 1996 WL 364802 at *73 n.146 (N.D.
Ill. June 7, 1996) (presumption of causation not applicable to achievement
disparity), aff'd in part and rev'd on other grounds, 111 F.3d 528, 537-38
(7th Cir. 1997) (in light of lack of evidence about proportion of
achievement gap caused by defendants, district court erred in ordering
defendants to close 50% of gap).

The State contends that in Jenkins III the Supreme Court held the
district court's findings of student achievement vestiges in the KCMSD were
inadequate and therefore ineffective to shift the burden of proof to the
State. In fact, the Supreme Court did not say the district court's
student achievement findings were insufficient to establish liability for
the student achievement vestige. To the contrary, the Court specifically
contemplated that the reduction in student achievement must be remedied:

Thus, the proper response by the District Court should have
been to eliminate to the extent practicable the vestiges of
prior de jure segregation within the KCMSD: a system-wide
reduction in student achievement and the existence of 25
racially identifiable schools. . . .

515 U.S. at 90. As the State points out, the Court observed that the
district court had never made findings on the severity of the vestige, or
the "incremental effect that segregation has had on minority student
achievement or the specific goals of the quality education programs." Id.
at 101. The Court made this observation in the context of discussing what
measure of improvement should be required to establish unitariness. In the
same paragraph the Court stated: "Under our precedents, the State and the
KCMSD are entitled to a rather precise statement of [their] obligations
under a desegregation decree." Id. (quotation omitted). The Court did not
question the

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existence of the achievement vestige; instead, it ordered that the district
court clarify the quantum of the student achievement vestige, so that the
parties could know what mark they and the court were aiming at. But see
id. at 118 (Thomas, J., concurring) (questioning validity of 1984 finding).
In the order we review today, the district court complied faithfully with
the Supreme Court's command to quantify the vestige.

The State also argues that the passage of time since the days of
state-mandated segregation makes it inappropriate to presume that current
conditions resulted from that segregation. Justice Scalia's concurrence
in Freeman suggested that the passage of time renders the presumption of
causation inappropriate. See 503 U.S. at 506 (Scalia, J., concurring)
("[T]he rational basis for the extraordinary presumption of causation
simply must dissipate as the de jure system and the school boards who
produced it recede further into the past."). However, the majority opinion
in Freeman continued to recognize the presumption. The majority opinion
acknowledged that the passage of time does have some probative value,
tending to strengthen a defendant's case that de jure segregation did not
cause current disparities. The majority stated:

As the de jure violation becomes more remote in time and
these demographic changes intervene, it becomes less likely
that a current racial imbalance in a school district is a
vestige of the prior de jure system. . . . In light of its
finding that the demographic changes in DeKalb County are
unrelated to the prior violation, the District Court was
correct to entertain the suggestion that DCSS had no duty to
achieve system-wide racial balance in the student population.

Id. at 496. At the same time, the Freeman majority reiterated: "The
school district bears the burden of showing that any current imbalance is
not traceable, in a proximate way, to the prior violation." Id. at 494.
Keyes specifically rejected the idea that the passage of time could cause
the burden to shift back to the plaintiffs: "[C]ertainly plaintiffs in a
school desegregation case are not required to prove 'cause' in the sense

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of 'non-attenuation.'" 413 U.S. at 211 n.17. Therefore, we conclude that
the passage of time6 is an evidentiary consideration, but not a bar to the
usual burden-shifting rules.

The State also argues that the presumption of invidious causation
should not be applied to the State because the State's obligation has only
been to pay for the remedy, not to implement it. We deal with this
argument infra at pages 16-18.

II.

Jenkins III reiterated the standard for determining whether a school
district has become unitary:
[A]mong the factors which must inform the sound
discretion of the court in ordering partial
withdrawal are the following: [1] whether there
has been full and satisfactory compliance with the
decree in those aspects of the system where
supervision is to be withdrawn; [2] whether
retention of judicial control is necessary or
practicable to achieve compliance with the decree
in other facets of the school system; and [3]
whether the school district has demonstrated, to
the public and to the parents and students of the
once disfavored race, its good-faith commitment to
the whole of the court's decree and to those
provisions of the

6
The passage of time is often overstated by reference to the time of the de jure
violations or the duration of this suit. It is frequently overlooked that the obligation of
the KCMSD and the State to eliminate the vestiges of the de jure dual school system
was not seriously undertaken until after the affirmance by this court in Jenkins v.
Missouri, 855 F.2d 1295 (8th Cir. 1988), cert. denied in part, 490 U.S. 1034 (1989),
aff'd in part and rev'd in part, 495 U.S. 33 (1990), of the intradistrict remedies crafted
by the district court. Thus, it was not until the late 1980's that implementation of the
remedies was commenced, and it was in the early 1990's that the effort was well under
way.

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 law and the Constitution that were the predicate for judicial
intervention in the first instance. [Freeman v. Pitts,] 503
U.S., at 491.

The ultimate inquiry is whether the [constitutional violator]
ha[s] complied in good faith with the desegregation decree
since it was entered, and whether the vestiges of past
discrimination ha[ve] been eliminated to the extent
practicable.

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

The Court of Appeals reviews the district court's findings as to the
existence of vestiges of segregation under the "clearly erroneous"
standard. See Lockett v. Board of Educ., 111 F.3d 839, 841-42 (11th Cir.
1997) (per curiam); Coalition to Save Our Children, 90 F.3d at 760; Flax
v. Potts, 915 F.2d 155, 157 (5th Cir. 1990).

The difficult issue before the district court and before us in this
appeal is whether the vestiges of past discrimination have been eliminated
to the extent practicable. Before we reach this issue, we will briefly
comment on whether there has been full and satisfactory compliance with the
decree in those aspects where supervision is to be withdrawn, and whether
the State has demonstrated to the public, the parents, and the students of
the once disfavored race a good faith commitment to the whole of the court
decree.

The Supreme Court observed that the State's role with respect to
quality education programs has been limited to funding, not implementation,
of these programs. Jenkins III, 515 U.S. at 101. The district court
recognized the Supreme Court's language in its opinion. 959 F. Supp. at
1172. With the passage of time this has been the nature of the State's
compliance. It should be remarked, however, that in the early days of
crafting the intra-district remedy, the Jenkins Class, the KCMSD, and the
State were called upon to submit proposed remedial plans, and did so. The
early orders of

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the district court accepted the plans put forth by the Jenkins Class and
the KCMSD, and rejected the State's proposals as inadequate. See, e.g.,
Jenkins v. Missouri, 672 F. Supp. 400, 404 (W.D. Mo. 1987), aff'd in
relevant part, 855 F.2d 1295 (8th Cir. 1988), cert. denied in relevant
part, 490 U.S. 1034 (1989). Perhaps this established a pattern of either
the Jenkins Class or the KCMSD assuming responsibility for proposing
remedial measures, and the State relying upon legal objections to the plan
and ultimately ceasing any effort to make a contribution toward directing
or administering the aspects of the remedy. The State had an opportunity
to help shape the remedy, and perhaps the long history of this litigation
would have been different had it accepted the challenge to do more than pay
when ordered to do so. Nevertheless, this pattern having been established,
the State has undoubtedly complied with the decrees of the district court
by funding the programs that have been ordered.

The State places great emphasis on the amount of money that has been
spent in Kansas City. It must be remembered in looking back on the long
history of this case, however, that the district court found and this
court affirmed findings that the physical plant of the KCMSD had literally
rotted; that the inferior education indigenous of the state-compelled dual
school system has lingering effects in the Kansas City, Missouri School
District; that the general attitude of inferiority among blacks produces
low achievement which ultimately limits employment opportunities and causes
poverty; and finally, that segregation has caused a system-wide reduction
in student achievement in the schools of the KCMSD. See Jenkins v.
Missouri, 855 F.2d at 1300 (citing district court decisions at 593 F. Supp.
at 1492, 639 F. Supp. at 24, and 672 F. Supp. at 411).

Restoration of the physical facilities has had a total cost of
approximately $500 million, with funds contributed roughly equally by the
State and the KCMSD. With respect to educational and other programs, the
State has spent approximately $950 million, and the KCMSD has spent about
$350 million. The extensive constitutional violations have required
extensive expenditures.

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 Suffice it to say that we are left with some question in our minds
as to whether the State has demonstrated a "good-faith commitment to the
whole of the court's decree and to those provisions of the law and the
Constitution that were the predicate for judicial intervention in the first
instance." Freeman, 503 U.S. at 491. Justice Souter, in his dissent in
Jenkins III, questioned the State's commitment to complying with the
district court's decree. He quoted the district court's statement that
"during the course of this lawsuit the Court has not been informed of one
affirmative act voluntarily taken by the Executive Department of the State
of Missouri or the Missouri General Assembly to aid a school district that
is involved in a desegregation program." 515 U.S. at 152 (Souter, J.,
dissenting) (quoting District Court's Order of Nov. 12, 1986, slip op. at
7). Justice Souter also quoted the following statement of the district
court: "The State, also a constitutional violator, has historically
opposed the implementation of any program offered to desegregate the KCMSD.
. . . [T]he State has never offered the Court a viable, even tenable,
alternative and has been extremely antagonistic in its approach to
effecting the desegregation of the KCMSD." Id. (quoting District Court's
Order of April 16, 1993, slip op. at 2). In view of our analysis of
whether the vestiges of segregation have been remedied to the extent
practicable, we need not further examine this issue.

III.

We now turn to the issue that the Supreme Court stated was the basic
task of the district court, namely deciding whether reduction in
achievement by minority students attributable to prior de jure segregation
has been remedied to the extent practicable. In Jenkins III the Supreme
Court said:

Under our precedents, the State and the KCMSD are "entitled to
a rather precise statement of [their] obligations under a
desegregation decree." [Freeman, 498 U.S.] at 246. Although
the District Court has determined that "[s]egregation has
caused a system wide reduction in achievement in

-18-
 the schools of the KCMSD," 639 F. Supp., at 24, it never has
identified the incremental effect that segregation has had on
minority student achievement or the specific goals of the
quality education programs.

515 U.S. at 101.

In the order now before us, the district court directed its attention
to identifying the incremental effect that segregation has had on minority
student achievement, and also to specifying the goals of the quality
educational programs. It should first be said that the district court in
its order of September 17, 1984, pointed to evidence in the record before
it in stating:

The general attitude of inferiority among blacks produces low
achievement which ultimately limits employment opportunities
and causes poverty. . . . The District stipulated that as of
1977 they had not eliminated all the vestiges of the prior dual
system. The Court finds the inferior education indigenous of
the state-compelled dual school system has lingering effects in
the Kansas City, Missouri School District.

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

The court pointed out further that various plans adopted by the KCMSD
in an effort to reduce minority isolation had not been effective. The
court stated:

During the 1983-84 year, no school had less than 30% black
enrollment; 24 schools however are racially isolated with 90 +
% black enrollment. The Court finds the District did not and
has not entirely dismantled the dual school system. Vestiges
of that dual system still remain.

Id. at 1493 (citations omitted).

-19-
 The court also stated that because most of the schools were in
racially segregated neighborhoods before 1954, the adoption of the
neighborhood school concept did not substantially change the segregated
school system. Id. Optional attendance zones adopted after Brown v. Board
of Education, 349 U.S. 294 (1955), did not aid the district's integration,
but on the contrary allowed segregated attendance patterns to continue.
593 F. Supp. at 1494.

There is a significant relationship between the testimony the court
pointed to in 1984 and the testimony presented at the hearing in January
1997 by the expert witnesses.

The State's expert witness, Dr. David Armor, testified that in
analyzing test scores of black and white students in the KCMSD, using a
bell curve with a median score of 50 normalized curve equivalent (NCEs),
whites scored about ten NCEs higher than blacks. Armor testified that
"most, if not virtually all" of this achievement gap in the Kansas City,
Missouri School District was the result of socio-economic conditions.
However, Dr. Armor could only identify socio-economic conditions accounting
for about two-thirds of the gap; the other third remained unexplained. 959
F. Supp. at 1163.

On the other hand, the expert produced by the KCMSD, Dr. William
Trent, testified that after controlling for poverty, family background, and
other factors, there was still a "race effect" that could be due to past
segregation. Id. at 1158. The gap existed in 1986 and 1988, continues to
exist now, and has never been eliminated. Dr. Trent concluded that about
4% to 9% of the achievement gap was explained by race. Id. Significantly,
the State's expert, Dr. Armor, testified that the size of the achievement
gap grows larger the longer the children remain in school. Id. at 1159.
Moreover, Dr. Trent testified that teachers' low expectations of
achievement in schools with high percentages of minority students also
contribute to the achievement gap. Id.

-20-
 After setting out the substance of the testimony of these expert
witnesses, the district court pointed out that the State's reliance on
socio-economic factors was inadequate to explain about 35% of the gap, even
taking the State's expert at his word. Id. at 1163. The court found that
Dr. Trent's analysis showing a "race effect" explaining 4-9% of the gap was
"reliable and accurately identifies the incremental portion attributable
to the prior de jure discrimination." Id. The court found that the
teacher expectation variable explains 2-4% of the gap, id., and that the
teachers' lower expectations were a result of earlier de jure segregation.
Id. at 1164. The court took the high end of these ranges in reaching the
figure of 13%. The court also held that the increase in the gap as the
children progressed through the KCMSD could also be attributed to
discrimination, id. at 1165, and this, together with the gap when the
students entered school, was 26% of the achievement gap. The court
concluded that these figures translated into a mandate to the school
district to reduce the achievement gap by 2.6 NCEs. The court ordered that
this task was to be completed within three years. It concluded that KCMSD
has not currently attained unitary status regarding the quality of
education. Id.

It is evident that the district court rejected Dr. Armor's opinion
that socio-economic factors alone were the cause of the achievement gap in
the KCMSD. We cannot say that the district court clearly erred in making
this finding. The burden of proof was on the State to prove that it had
not caused the gap, and the State's expert could not explain a third of the
achievement gap by his socio-economic theory. The State simply failed to
carry its burden, and our discussion could end at this point. But in
addition, the district court accepted Dr. Trent's explanation quantifying
that part of the achievement gap resulting from race; that was a finding
of fact based upon research by a well-qualified expert.7 Dr. Trent's
testimony provided a rational explanation for

7
The State briefly suggests that Dr. Trent's testimony did not "rise to the level of
evidence" contemplated by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993). The State does not cite any reference to the record at which it objected
to the evidence under Daubert. We therefore understand the State's argument to be a
substantive argument about sufficiency of the evidence, rather than an evidentiary
objection.

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the achievement gap and the extent of it, and we cannot conclude that the
district court erred in so finding.8

IV.

The State attacks the district court's denial of unitariness status
as to four of the five Green factors--student assignments, faculty and
staff assignments, transportation, and facilities.

The KCMSD contended that the current racial balance within its
schools was unknown because of the effect of the withdrawal of suburban
students after Jenkins III. The district court observed that the student
assignment aspect of the remedy in this case had depended primarily on
voluntary transfers from the suburbs in conjunction with magnet schools,
rather than on mandatory reassignment. Id. at 1166. After Jenkins III,
many suburban students left the KCMSD. The district court found that the
"ramifications of the withdrawal of the 1476 white students cannot be
judged at this time." Id. at 1167. The court declined to declare the
KCMSD unitary in this regard until the effects of this change in the
enrollment could be ascertained. Therefore, the State failed to carry its
burden of proof that there was no student assignment vestige. The State
contends that, whatever the student assignment statistics, the KCMSD is not
currently engaging in discriminatory student assignment practices, and
therefore there should be no vestige under Pasadena City Board of Education
v. Spangler, 427 U.S. 424 (1976).

8
The expert testimony was responsive to the Supreme Court's direction to
quantify the achievement gap. It was the only testimony to address this issue, and came
from all parties.

-22-
 Under Spangler and Freeman, school districts that have once
eliminated the student assignment vestige are not required to readjust
student assignments to compensate for subsequent imbalances caused by
forces other than intentional segregation. "Once the racial imbalance due
to the de jure violation has been remedied, the school district is under
no duty to remedy imbalance that is caused by demographic factors."
Freeman, 503 U.S. at 494. The key distinction between this case, on the
one hand, and Spangler and Freeman, on the other, is that there is no
finding in this case that the KCMSD ever eliminated the student assignment
vestige. The district court's strategy for eliminating this vestige was
the magnet school program, rather than the sort of unilateral reassignment
decree used in Spangler. See 427 U.S. at 435-36. This strategy was at
least partly aborted by the Jenkins III ruling, and the district court
found that, on the present state of the record, it was impossible to assess
the racial balance in the schools during the process of dismantling the
original remedy. This finding was not clearly erroneous. Accordingly, the
State's invocation of Spangler and Freeman on this point is premature. See
Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th Cir. 1985) ("Until a
unitary system is created, a school system is not absolved from this duty
by reason of demographic changes."); Haycraft v. Board of Educ., 560 F.2d
755, 756 (6th Cir. 1977) (Spangler not relevant where segregation has never
been remedied).

The district court found that the transportation factor was so
closely bound to student assignment that the uncertainty affecting the
student assignment vestige also prevented a finding of unitariness as to
transportation. 959 F. Supp. at 1168. In Freeman the Supreme Court
foresaw the possibility of such intertwining. "Two or more Green factors
may be intertwined or synergistic in their relation, so that a
constitutional violation in one area cannot be eliminated unless the
judicial remedy addresses other matters as well." 503 U.S. at 497. There
is no clear error in the district court's finding.
As to the facilities factor, the district court found that certain
court-ordered renovations remain to be completed. 959 F. Supp. at 1168.
The district court did not

-23-
err in requiring the terms of the court's decree to be completely fulfilled
before relinquishing the ability to enforce compliance with the decree.

In considering the faculty and staff assignments factor, the district
court relied on the testimony of the State's witness Dr. Armor, who
testified that, while the KCMSD had once complied with the court's orders
to bring about racial balance in faculty and staff assignments, the
percentage of elementary schools complying with the balance guidelines had
"decreased steadily" in recent years. Id. at 1168. The court also
concluded that it was necessary for the court to retain control over
faculty appointments in order to maintain flexibility in other areas, such
as reducing expenditures. Id. Under Freeman, the district court retains
discretion to determine whether to relinquish jurisdiction on a piecemeal
basis. See 503 U.S. at 493. Where the district court has reason to retain
supervision over an area to aid its jurisdiction over unfinished business,
Freeman certainly does not require the court to declare partial
unitariness. See id. at 497-98.

We thus conclude that the district court did not err in finding that
the achievement gap vestige had not been remedied to the extent
practicable, and that four out of the five Green factors had not been
remedied. Thus, the KCMSD could not be held unitary in any aspect other
than extra-curricular activities.

V.

The Jenkins Class appeals the district court's approval of the
agreement between the State and the KCMSD. Pursuant to the agreement, the
State will be dismissed from this litigation after it pays the KCMSD
approximately $320 million over three fiscal years to implement
desegregation remedies in the district.

-24-
 A.

The Jenkins Class contends that we review the district court's
approval of the agreement de novo. The State contends that the district
court had discretion to modify its earlier remedial orders based on changed
conditions, and that we review such a modification only under an abuse of
discretion standard. The KCMSD argues that the district court has broad
discretion to determine the scope of its remedy.

There is no single blueprint or universal answer for desegregation
cases, see Milliken v. Bradley, 433 U.S. 267, 287 (1977), and "there is
obviously no one plan that will do the job in every case." See Green, 391
U.S. at 439. Instead, the district court, which has "firsthand experience
with the parties and is best qualified to deal with the 'flinty,
intractable realities of day-to-day implementation of constitutional
commands,'" has broad and flexible equitable powers to fashion
desegregation remedies. United States v. Paradise, 480 U.S. 149, 184
(1987) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1,
6 (1971)). "Once a right and a violation have been shown, the scope of a
district court's equitable powers to remedy past wrongs is broad, for
breadth and flexibility are inherent in equitable remedies." Swann, 402
U.S. at 15; see also Little Rock Sch. Dist. v. Pulaski County Special Sch.
Dist., 839 F.2d 1296, 1314 (8th Cir.) (the district court has "broad
remedial authority in dismantling segregation"), cert. denied, 488 U.S. 869
(1988). Because the district court possesses such broad discretion, "[o]ur
standard of review of the district court's actions . . . is restricted."
Jenkins, 855 F.2d at 1299. We must "give great deference to a district
court's exercise of its broad equitable powers in crafting a remedy in
school desegregation cases." Jenkins v. Missouri, 965 F.2d 654, 656 (8th
Cir. 1992).

The district court retains this broad equitable authority throughout
the entire desegregation case to modify the remedy as it deems necessary.
Indeed, the district court has often done so during the long life of this
case, and we have affirmed such modifications. The court has "inherent
capacity to adjust remedies in a feasible and

-25-
practical way to eliminate" the unconstitutional conditions. Freeman, 503
U.S. at 487, 489 (holding that the district court had discretion "to order
an incremental or partial withdrawal of its supervision and control"). In
an earlier Jenkins opinion, we described the district court's broad and
continuing equitable authority:

[A] federal court has "inherent jurisdiction in the exercise of
its equitable discretion and subject to appropriate appellate
review to vacate or modify its injunctions." Booker v. Special
School Dist. No. 1, 585 F.2d 347, 352 (8th Cir. 1978), cert.
denied, 443 U.S. 915 (1979). School desegregation plans are
particularly likely to need adjustment. As the Supreme Court
has observed regarding such cases: "[E]quity has been
characterized by a practical flexibility in shaping its
remedies and by a facility for adjusting and reconciling public
and private needs." Milliken [v. Bradley, 433 U.S. 267, 288
(1977)] (quoting Brown v. Board of Educ., 349 U.S. 294, 300
(1955)). . . .

We have said that the basic responsibility for
determining whether and to what extent an injunction should be
modified "rests primarily on the shoulders of the district
court that issued the injunction in the first place." Booker,
585 F.2d at 353.

Jenkins v. Missouri, 931 F.2d 470, 482 (8th Cir.), cert. denied, 502 U.S.
967 (1991).

Thus, our review of the district court's order approving the
agreement is limited, and we may reverse that order only if we conclude
that it was an abuse of the court's discretion. See, e.g., Swann, 402 U.S.
at 31 (court must affirm desegregation order if it is reasonable,
feasible, and workable). To the extent that the court based its order on
findings of fact, those findings "may not be disturbed unless clearly
erroneous." Jenkins, 855 F.2d at 1300. With these standards in mind, we
now consider the merits of the agreement.

-26-
 B.

Certain aspects of the agreement, and its intended effect, are
greatly troubling to us. The two constitutional violators, the State and
the KCMSD, have agreed to release one of the violators, the State, from any
further duty to the constitutional victims beyond the duty to pay the
specified sums of money. The constitutional victims are not a party to
this agreement. We must bear in mind, however, the Supreme Court's
directive in Jenkins III that the district court "should consider that the
State's role with respect to the quality education programs has been
limited to the funding, not the implementation, of those programs." 515
U.S. at 101. The Court also reaffirmed the district court's ability to
declare partial unitary status and permit the violator's partial withdrawal
in phases. See id. at 88, 101. With the Supreme Court's directives in
mind, we will now turn to the considerations supporting approval of the
agreement.

The basic foundation for the district court's approval of the
agreement is its assumption that the KCMSD will be unitary within two to
three years. As set forth in parts III and IV of this opinion, we affirm
the court's findings regarding unitary status both as to educational
achievement and as to the Green factors.

The court properly recognized that the Supreme Court's standard for
unitary status does not require total elimination of the vestiges of
discrimination, including the achievement gap, but focuses on whether those
vestiges have "been eliminated to the extent practicable." Id. at 89
(quoting Freeman, 503 U.S. at 492). Perhaps the district judge who has
lived with this case for nearly twenty years was making an optimistic
prediction about the KCMSD's progress toward desegregation in the next two
to three years. On the other hand, however, we must affirm if the district
court's findings support its conclusion that a period of two to three years
will allow the remaining vestiges to be eliminated to the extent
practicable.

-27-
 The district court relied primarily on the testimony of Dr. John
Murphy, a former school superintendent for both the Prince George's County,
Maryland district and the Charlotte-Mecklenburg district in North Carolina,
as well as other districts. Both Prince George's County and Charlotte-
Mecklenburg were subject to court desegregation orders during Dr. Murphy's
tenure. Dr. Murphy was asked to develop a transition plan to focus on
improving the quality of learning in the KCMSD with the understanding that
there would be a significant reduction in expenditures over three years.
He expressed the opinion this could be done. Dr. Murphy testified that the
agreement would provide the KCMSD with approximately $6,000 per pupil per
year, an amount which would be sufficient not only to offer a quality
education, but also to make the curriculum and other reforms necessary to
improve student achievement. There was evidence in the record that Dr.
Murphy had achieved similar goals in Prince George's County while spending
$5,405 per pupil. While it may be true that Dr. Murphy's testimony dealt
with one-third of the district he supervised in the 1992-93 school year and
with costs for a different time and locality, the weight of his testimony
was to be assessed by the district court. His testimony was clear that the
level of funding provided by the agreement would be sufficient to
implement the strategies and improvements that he believed were necessary
in the KCMSD, similar to those in Charlotte-Mecklenburg or Prince George's
County. The phase-out over a three-year period was critical to Dr. Murphy,
and he testified that a gradual reduction in funding would allow district
administration and staff to do a better job, even while resources were
being tightened.

Dr. Michael Stolee, an experienced educator and former director of
the Florida School Desegregation Consulting Center, provided evidence
regarding student assignments. He testified that the KCMSD could be
reorganized within a two-year period at a cost paid by anticipated revenues
in a manner to eliminate racial isolation to the extent practicable.

-28-
 The district court ordered the KCMSD to reduce the achievement gap
by 2.6 NCEs within three years. 959 F. Supp. at 1179. Although the court
was unable to say with absolute certainty that the KCMSD will have attained
unitary status within the next three years, the court nevertheless
concluded that the three-year period was a reasonable time frame for the
KCMSD to accomplish its task. Id. The court noted that some witnesses
had testified that two to three years was sufficient to eliminate some of
the remaining vestiges, while other witnesses had testified that three to
five years would be required. Id. It concluded that three years should
be sufficient. Id. The court did not find that the remaining vestiges
can be eliminated to the extent practicable within this period, but rather
expressed a judgment as to the extent of the State's remaining obligation,
which was based on the testimony before it. We cannot conclude that the
district court erred or abused its discretion in this regard.

With respect to the remaining Green factors, as we noted above, the
district court made factual findings that unitariness could be accomplished
in these areas within two to three years. We have reviewed the record as
a whole and conclude that these findings are not clearly erroneous. To the
extent there are conflicts in the evidence, resolution of such conflicts
is for the district court.

In light of the evidence before the district court, we cannot hold
its findings to be clearly erroneous or its conclusion to be an abuse of
discretion. We confess that if we were the trier of fact, we would not
have reached this result with respect to the achievement gap. Our duty,
however, is to review the district court's findings for clear error, rather
than to make our own findings, and we do not find a basis for reversal
under this standard.

C.

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

-29-
years ago. In 1993, the court called upon the parties to submit plans for
terminating funding based on assumptions that the termination would occur
in three, five, seven, or ten years. See District Court's Order of April
16, 1993, slip op. at 21. The longer periods would terminate funding in
either 2000 or 2003. The agreement provides for State payments over three
years, which the KCMSD has agreed to spend over five years, thus providing
funding until the year 2001 or 2002. Therefore, there is only a small
difference between the timing of terminating State funding under the
agreement and the time frame previously contemplated by the district court.
Resolving issues such as extent and degree is a core function of the
district court, and it has considerable discretion in this task. We cannot
conclude that the district court abused its discretion in approving this
period for the phase-out of the State's funding obligation.

D.

We have described the State's role in implementing desegregation
remedies in this case as being limited to only providing funding. This
issue merits further discussion.9

Certainly, the Missouri Constitution imposes broader responsibilities
upon the State than simply providing financing. It provides that the
General Assembly shall establish and maintain free public schools for the
instruction of all children in the State, and that the supervision of
instruction in the public schools shall be vested in a state board of
education. Mo. Const. art. IX, §§ 1(a), 2(a).

The State bore a duty under the federal Constitution to eliminate the
dual school system created by law, which indeed it has done, but its duty
did not end there. The

9
We must first pause to say that the State's funding-only role has come about
through the State's conscious policy choices to so limit its involvement. We do not
believe that either state or federal law contemplated such a limited role for the State.

-30-
State was further required to eliminate the vestiges of such system to the
extent practicable, a far broader responsibility. Despite this
constitutional responsibility, however, the State's only action besides
funding has essentially been limited to repeatedly objecting to the remedy
proposals submitted by both the Jenkins Class and the KCMSD, as shown by
a perusal of this court's opinions.

Thus, the State's role in this protracted litigation has evolved into
one of funding only. The agreement essentially acknowledges the present
state of affairs, and the KCMSD, by entering into the agreement, has
expressed its acceptance of this limited role.10

Funding for the KCMSD is unquestionably critical to the continuing
success of the district's programs. Indeed, the present level of funding,
on which the continuing operation of the schools is dependent, exists only
because of the district court's authority to enjoin enforcement of state
laws that bar the KCMSD from establishing a levy sufficient to operate the
schools. See Missouri v. Jenkins, 495 U.S. 33, 52 (1990). We also note
that the Missouri General Assembly, in its most recent session, passed a
house joint resolution submitting for state-wide voter consideration a
constitutional amendment to allow the KCMSD to maintain the levy at its
present level with district voter approval, thereby providing a means for
continued financial support of the KCMSD independent of court order after
the KCMSD is no longer under court supervision. See 1997 Mo. Legis. Serv.
H.J.R. No. 9 (Vernon's).

Sufficient funding is absolutely essential to the school district's
continued viability. All parties agree that the loss of the level of
funding under the current levy would be catastrophic and would reduce the
district's funding to less than half the

10
During oral argument, the parties identified a number of State programs that are
being developed that will be available to the KCMSD, but these programs have not yet
had a significant impact on the district.

-31-
amount that has been available to the KCMSD for a number of years. Should
this loss of funding occur, it would present a changed circumstance that
could call for reconsideration of the agreement.

E.

The Jenkins Class argues that the State cannot be dismissed because
it is both a constitutional violator and a defendant subject to joint and
several liability. The district court has concluded that the State's
liability as constitutional violator will be satisfied by the payments
called for in the settlement. It has amended the remedy with regard to
joint and several liability.11 Although the agreement contemplates the
dismissal of the State in the future, the KCMSD will nevertheless remain
subject to court supervision as a constitutional violator liable to the
constitutional victims. The KCMSD has not sought a declaration of unitary
status with respect to any part of its operations. The effect of the
agreement is that the KCMSD now bears sole responsibility for implementing
the desegregation remedy and obtaining the funding necessary to do so.

11
We have considered, and now reject, the Jenkins Class's other arguments in
opposition to the agreement. The Class analogizes the agreement to a contract and
contends that it cannot be bound by a contract to which it is not a party. Regardless
of the agreement, the district court's order is not akin to a contract. The Class
presented its objections to the district court, those objections were overruled, and the
Class is now bound by that order to the same extent as any other court order in this
case.

The Class also argues that the district court erred in approving the agreement
because: (1) the court was not presented with a justiciable controversy; (2) the order
is invalid as an advisory opinion; and (3) the agreement cannot be viewed as an
alternative remedy plan because the State did not seek declaratory relief. These
arguments must fail based on our holding that the court's approval of the agreement was
an exercise of its continuing equitable authority to devise and implement a remedy in
this case.

-32-
 In the district court's order approving the settlement, the court
expressed concerns about the KCMSD's management, including its top-heavy
administration. 959 F. Supp. at 1175-77. The court acknowledged that the
KCMSD has made significant progress in the face of substantial obstacles,
not the least of which has been the ever-shifting leadership in the KCMSD
administration. Id. at 1173. There have been ten district
superintendents in the last nine years. Id. The district court made plain
that it was simply making observations, and not findings of fact, and that
its observations played no role in its decision to approve the agreement.
We find instructive, however, the court's identification of areas in which
the district's performance has been "dismal at best." Id. These include:
(1) the KCMSD still lacks a comprehensive integrated educational and
instructional plan; (2) the KCMSD's fragmented efforts to implement
meaningful staff development measures have fallen far short of the mark;
(3) ongoing administrative instability has plagued the KCMSD for years,
resulting in a lack of accountability for deficiencies; (4) the KCMSD still
lacks a security plan; and (5) the KCMSD is unable to produce a budget for
a particular fiscal year and reconcile it with actual expenditures for
specific line items. Id. at 1173-74.

The district judge making these observations, Judge Russell Clark,
has presided over this litigation from its inception in 1977 until his
decision to withdraw following issuance of the order which we now review.
In that twenty-year period, this case was consistently before the court,
and Judge Clark's extensive knowledge of conditions in the district has
come the hard way, through numerous hearings. His observations point to
the nature of the problems facing the district and sharply contrast with
the type of operation described by Dr. Murphy in his testimony. Needless
to say, these problems are substantial obstacles to the KCMSD's satisfying
its obligation to provide quality education. These obstacles are a
challenge to the KCMSD's management, and also impose a heavy duty on the
district court to closely supervise and monitor the KCMSD management.
Thus, in entering into this agreement, the KCMSD may well have brought upon
itself a circumstance that will subject it to more, rather than less,
judicial

-33-
supervision, particularly during the transition period of the next three
to four years, and until the vestiges of segregation have been eliminated
to the extent practicable.

The district court stated that the KCMSD's administration was not up
to the task of eliminating the remaining vestiges within the short time
required by the court. It expressed the view that a strong hand with
educational expertise and no "vested interest" was essential to accomplish
the difficult goals in this transitory period. Id. at 1178. We have
referred to the refusal of the court's request that Dr. Bartman and DESE
play a role in this respect. The district court stated that in this event
it would consider appointment of a special master to oversee the KCMSD and
urged that time was of the essence. We are in full agreement that on
remand the district court should promptly consider the issue of appropriate
supervision over the district. The deficiencies outlined by the district
court which we have discussed above and achievement of the goal of
attaining unitary status are difficult and complex. We agree with the
district court that this is attainable, but it will require skillful and
complex administrative and management effort. We leave to the discretion
of the district court how best to exercise its oversight. Time is short,
and the district court must do what is necessary to assure that the goals
are achieved.

We affirm in all respects the district court's statements concerning
the transition leading to return of the district to local control. The
goal is to eliminate, to the extent practicable, the vestiges of
discrimination in this school district, and the district court should spare
no effort in ensuring that this goal is reached.

Many aspects of the agreement and its effects are troublesome, and
we remain deeply concerned about the future of the KCMSD. The issue of
whether the district court erred in approving the agreement is a close one.
Nevertheless, we cannot say that the district court clearly erred in its
factual findings regarding the agreement, nor that it abused its discretion
in approving the agreement and, in effect, modifying the earlier remedy
ordered by the court.

-34-
We thus affirm the judgment of the district court.

A true copy.

Attest:

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

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