Michael Liddell v. State of Missouri , 126 F.3d 1049 ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
No. 97-2009
Michael C. Liddell, a minor,* by
Minnie Liddell, his mother and
* next
friend; Kendra Liddell, a minor,
*
by Minnie Liddell, her mother
* and next
friend; Minnie Liddell; Roderick
* D.
LeGrand, a minor, by Lois LeGrand,
*
his mother and next friend; *Lois
LeGrand; Clodis Yarber, a minor,
* by
Samuel Yarber, his father and
* Appeal
next from the United
States
friend; Samuel Yarber; Earline
* District
Caldwell;
Court for the
Lillie Caldwell; Gwendolyn Daniels;
* Eastern District of
Missouri.
National Association for the*
Advancement of Colored People;
*
United States of America; *
*
Plaintiffs-Appellees; *
*
City of St. Louis; *
*
Plaintiff; *
*
v. *
*
The Board of Education of the
* City of
St. Louis; Hattie R. Jackson,
* President,
Board of Education of the City
* of St.
Louis; Rev. Earl E. Nance, Jr.,
* a
member of the Board of Education
* of
the City of St. Louis; Renni* B. Shuter,
a member of the Board of Education;
*
of the City of St. Louis; Paula
* V.
Smith, a member of the Board* of Educa-
tion of the City of St. Louis;
* Dr. Albert
D. Bender, Sr., a member of *the Board
of Education of the City of *St. Louis;
Eddie G. Davis, a member of *the Board
of Education of the City of *St. Louis;
Eddie G. Davis, a member of *the Board
of Education of the City of *St. Louis;
Dr. John P. Mahoney, a member* of the
Board of Education of the City
* of St.
Louis; Marybeth McBryan, a member
*
of the Board of Education of* the City
of St. Louis; Thomas M. Nolan,
* a
member of the Board of Education
* of
the City of St. Louis; William
* Purdy, a
member of the Board of Education
* of
the City of St. Louis; Robbyn* G. Wahby,
a member of the Board of Education
* of
the City of St. Louis; Madye* Henson
Whithead, a member of the Board
* of
Education of the City of St.* Louis;
Dr. Cleveland Hammonds, Jr.,* Super-
intendent of Schools for* the City of St.
Louis; *
*
Defendants-Appellees;*
*
Ronald Leggett, St. Louis Collector
* of
Revenue; *
Defendant; *
*
State of Missouri; Mel Carnahan,
*
Governor of the State of Missouri;
*
Jeremiah (Jay) W. Nixon, Attorney
*
General; Bob Holden, Treasurer;
*
2
Richard A. Hanson, Commissioner
* of
Administration; Robert E. Bartman,
*
Commissioner of Education; Missouri
*
State Board of Education, and
* its
members; Thomas R. Davis; Gary
* M.
Cunningham; Sharon M. Williams;
*
Peter F. Herschend; Jacqueline
* D.
Wellington; Betty E. Preston;
* Russell V.
Thompson; Rice Pete Burns; *
*
Defendants-Appellants;*
*
Special School District of St.
* Louis
County; Affton Board of Education;
*
Bayless Board of Education; *Brentwood
Board of Education; Clayton *Board of
Education; Ferguson-Florissant
* Board
of Education; Hancock Place *Board of
Education; Hazelwood Board of
*
Education; Jennings Board of* Education;
Kirkwood Board of Education;* LaDue
Board of Education; Lindbergh
* Board of
Education; Maplewood-Richmond
*
Heights Board of Education; *Mehlville
Board of Education; Normandy* Board
of Education; Parkway Board *of
Education; Pattonville Board* of Educa-
tion; Ritenour Board of Education;
*
Riverview Gardens Board of Education;
*
Rockwood Board of Education;*
University City Board of Education;
*
Valley Park Board of Education;
*
Webster Groves Board of Education;
*
Wellston Board of Education;* St. Louis
County; Buzz Westfall, County
*
Executive; James Baker, Director
* of
Administration, St. Louis County,
*
3
Missouri; Robert H. Peterson,
* Collector
of St. Louis County "Contract
* Account,"
St. Louis County, Missouri; *
*
Defendants-Appellees;*
*
The St. Louis Career Education
*
District; *
*
Defendant;
*
*
St. Louis Teachers' Union, Local
* 420,
AFT, AFL-CIO; *
*
Intervenor Below. *
Submitted: July 17, 1997
Filed: September 25, 1997
Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.
HEANEY, Circuit Judge.
The State of Missouri (State) appeals from an April
10, 1997 order of the United States District Court for
the Eastern District of Missouri denying the State’s
motion to end all efforts to recruit and admit new
students into the voluntary interdistrict transfer plan
(VITP) for the 1997-98 school year. The State contends
that the district court acted contrary to the United
States Supreme Court’s decision in Missouri v. Jenkins,
115 S. Ct. 2038 (1995) (Jenkins III) in denying its
motion. We do not believe that it did.
4
On April 23, 1996, the district court appointed Dr.
William H. Danforth as settlement coordinator with the
responsibility and authority to conduct conferences with
all persons involved in the case, to secure the services
of experts, and to stimulate negotiations among the
parties. Dr. Danforth continues in this capacity as of
the date of this opinion. Moreover, the district court
has under consideration a motion by the State to have the
St. Louis School District declared unitary. Given the
long history of state-mandated, segregated schools, the
complexity of the issues, and the difficulty of
developing a plan that will ensure that students of all
races will have a continuing equal opportunity for a
quality, integrated education, the district court did not
abuse its discretion in denying the State’s motion to
phase out the voluntary transfer of black city students
to county districts pending settlement negotiations. We
encourage the parties to proceed diligently with their
negotiations and believe that the settlement coordinator
should be permitted to complete this important
assignment. We urge the district court to ascertain the
status of the negotiations, and in the event the
negotiations reach an impasse, the district court should
promptly rule on the pending unitary status motion. We
affirm the order of the district court.
Background
The early history of this litigation is chronicled in
our earlier opinions and will only be summarized here.1
1
See Liddell v. Board of Educ., 882 F.2d 298 (8th Cir. 1989); Liddell v. Board
of Educ., 873 F.2d 191 (8th Cir. 1989); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.)
5
In 1972, the plaintiffs brought an action against the
Board of Education of the City of St. Louis (City Board)
alleging that the city schools were segregated by race as
a matter of state law and practice. Thereafter, the
State of
(en banc), cert. denied, 469 U.S. 816 (1984) (Liddell VII); Liddell v. Board of Educ.,
677 F.2d 626 (8th Cir.), cert. denied, 459 U.S. 877 (1982) (Liddell V); Liddell v. Board
of Educ., 667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1081 (1981) (Liddell III); and
Adams v. United States, 620 F.2d 1277 (8th Cir.) (en banc), cert. denied, 449 U.S. 826
(1980).
6
Missouri was joined as a party defendant. The plaintiffs
and the United States as amicus submitted desegregation
plans to the district court. The district court held a
trial and found no constitutional violation. We
reversed, holding that prior to 1865 the State prohibited
the creation or maintenance of schools for teaching black
children to read or write and that, after that date until
1980, the City Board and the State were jointly
responsible for maintaining a segregated school system.
Adams v. United States, 620 F.2d 1277, 1280 (8th Cir.)
(en banc), cert. denied, 449 U.S. 826 (1980).2 We further
noted that the City Board and the State failed to take
effective measures to desegregate the school system in
the years immediately following Brown v. Board of
Education, 347 U.S. 483 (1954). We remanded the matter
to the district court with directions to develop and
implement a plan to integrate the St. Louis public
schools.
On remand, the district court ordered the
implementation of a mandatory desegregation plan within
the city schools with funding to be shared equally by the
City Board and the State. The district court directed
the City Board and the State to develop and submit plans
to alleviate the segregated conditions within the city
schools through interdistrict transfers between the city
and the suburban school districts. Liddell v. Board of
Educ., 491 F. Supp. 351 (E.D. Mo. 1980). The Liddell and
Caldwell plaintiffs (representing black parents and
students) and the Adams plaintiffs (representing white
2
Only one party, the Adams plaintiffs, petitioned the Supreme Court for a writ
of certiorari. The State did not file a petition.
7
parents and students) appealed.3 The State contended that
it should not be required to pay any of the costs of
integration and specifically challenged paragraph 12 of
the district court’s order which provided:
3
The Liddell plaintiffs contended that the plan did not go far enough to remedy
the defendants’ discriminatory practices; and the Adams plaintiffs contended that the
district court had gone too far in its St. Louis School District reassignment plan.
8
12. The State defendants, the United
States, and the St. Louis Board of Education are
ordered and directed as follows:
a) To make every feasible effort to
work out with the appropriate school
districts in the St. Louis County and
develop, for 1980-81 implementation, a
voluntary, cooperative plan of pupil
exchanges which will assist in alleviating
the school segregation in the City of St.
Louis, and which also insures that inter-
district pupil transfers will not impair the
desegregation of the St. Louis school
district ordered herein, and submit such
plan to the Court for approval by July 1,
1980.
Id. at 353. We affirmed, noting that “the voluntary
exchanges contemplated by section [12](a) must be viewed
as a valid part of the attempt to fashion a workable
remedy within the City.” Liddell v. Board of Educ., 667
F.2d 643, 651 (8th Cir.), cert. denied, 454 U.S. 1081
(1981).
On August 24, 1981, the district court added eighteen
St. Louis County suburban school districts (County
Districts) as parties defendant and entered various other
orders relating to desegregation of the city schools.
The County Districts, the State, and the City Board
appealed. The State contended that it could not be
required to implement a remedy affecting County Districts
until a hearing had been held. The Adams plaintiffs
contended the district court could order the State to
consolidate city and county schools if necessary to
effectuate desegregation of the city schools and that
9
these actions could be taken without additional hearings
or liability findings. The City Board argued that the
district court orders were not reviewable. We held that
the court order adding additional parties was not
appealable. We stated:
The district court has yet to issue an order
that impacts any of the county schools or units
of government. Thus, we are being asked not to
rule on a specific plan but to anticipate what
the district court may have in mind and to
instruct it as to what it can or cannot do. The
most that can be said
10
is that the district court has indicated in one
or more of its orders that it may take actions
which impact significantly on St. Louis County
school districts.
Liddell v. Board of Educ., 677 F.2d 626, 641 (8th Cir.),
cert. denied, 459 U.S. 877 (1982). We remanded to the
district court for action consistent with our opinion.
On August 6, 1982, the district court entered an
order in which it disclosed that if it held a hearing and
found that the County Districts had committed
constitutional violations that contributed to the
segregation of the St. Louis School District, it would
order the consolidation of the city and county schools.
The court scheduled interdistrict liability hearings.
Before the hearings were held, however, the City Board,
the Liddell plaintiffs, the Caldwell plaintiffs, and all
eighteen County Districts entered into a settlement
agreement that settled the plaintiffs’ interdistrict
claims against the eighteen County Districts. The
agreement provided for voluntary interdistrict transfers
between city and county schools and included fiscal
incentives to be funded by the State to encourage the
transfers. Each district receiving sufficient transfers
within five years to satisfy its desegregation
obligations would receive a final judgment.4 The State,
having been found to be the primary constitutional
violator, was ordered to fund the transfer of city
4
The settlement agreement further provided “that after a school district receives
an order granting it final judgment, it has a continuing obligation to: ‘cooperate in the
recruitment and promotion of transfers . . . .’” Liddell v. Board of Educ., 96 F.3d 1091,
1094 (8th Cir. 1996) (quoting Appellants’ Jt. App. at 108).
11
students to the County Districts. We affirmed the
district court in an en banc opinion and set forth our
reasons in great detail. Liddell v. Missouri (Liddell
VII), 731 F.2d 1294, 1301-09 (8th Cir.) (en banc), cert.
denied, 496 U.S. 816 (1984).5
5
In a subsequent opinion, Liddell v. Board of Educ., 851 F.2d 1104, 1105 (8th
Cir. 1988), we noted that 12,000 black students were then enrolled in the County
Districts. This number has remained relatively constant up to the present. The County
Districts state in their current briefs that they are willing to continue to accept the
voluntary transfers under the terms of the settlement agreement. Most, if not all, of the
County Districts have achieved the plan ratios or goals established under the settlement
agreement.
12
In Liddell v. Board of Education, 873 F.2d 191, 192
(8th Cir. 1989), the State appealed from a district
court order “clarifying the extent of Missouri’s funding
obligations for interdistrict student transfers in the .
. . desegregation case.” It took the position that when
a County District had achieved its designated plan ratio,
the State was no longer required to pay for transfers.
The State sought further clarification of its funding
obligation. We stated:
Missouri’s obligation is to fund interdistrict
transfers necessary to reach 15,000 students--no
more, no less. . . . The parties agree the
total number of students currently attending
county schools under the interdistrict transfer
program is less than 15,000. Thus, Missouri’s
obligation to fund interdistrict transfers has
not yet been fulfilled. Insofar as the district
court’s order restoring state funding complies
with this portion of our opinion, we affirm.
Furthermore, the parties shall take whatever
steps are necessary to ensure that 15,000 city
students are enrolled in the county schools. In
light of the parties’ progress to date, this
goal is attainable, and it must be achieved at
the earliest opportunity.
Id. at 194. No petition for a writ of certiorari was
filed. We were asked to clarify our opinion a few months
later. We again stated:
1. Missouri is obligated to fund voluntary
transfer students up to a total of 15,000,
regardless of any individual county district’s
Plan Ratio and/or Plan Goal attainment. . . .
2. The state’s obligation to fund the
voluntary transfer of students will continue
13
until such time as the state is relieved of that
obligation.
Liddell v. Board of Educ., 882 F.2d 298, 299 (8th Cir.
1989). Again, no petition for a writ of certiorari was
filed.
14
In October 1991, the State filed the first of three
motions to declare the St. Louis School District unitary,
terminate desegregation funding, and release all
defendants from court supervision. The United States,
the City Board, and the plaintiffs responded that
consideration of unitary status was premature. The State
did not reply to the responses. Instead, it filed a new
motion on May 7, 1992, requesting partial unitary status.
The district court held that while the State’s request
was premature, the State was entitled to answers to
certain discovery requests because a future declaration
of unitary status might be warranted. The State did not
appeal this ruling to this court.
In November 1993, the State filed an amended motion
for unitary status. It informed the court that it would
be prepared to present evidence in support of its amended
motion within one year. Eleven months later the State
asked the district court for a hearing date on its motion
for unitary status. On February 28, 1995, the district
court scheduled a hearing for September 1995. This
hearing was later rescheduled for March 1996.
On January 4, 1996, while the unitary status motion
was still pending, the State filed a motion to terminate
the VITP on the basis of Jenkins III. It described its
motion as conditional and not ripe for court action
because it desired a ruling on its motion only if the
court failed to enter a finding of unitary status
following the hearing scheduled for March 1996. The City
Board and the plaintiffs requested that the hearing on
unitary status be postponed while the State’s Jenkins III
motion was adjudicated. The plaintiffs, joined by the
15
United States, alternatively requested that the court
appoint a settlement coordinator to resolve the
litigation without the need for trial. The State again
requested that the Jenkins III issue be addressed only
after a hearing on its unitary status motion and then
only if the unitary status motion was not granted in
full.
On February 15, 1996, the court denied the State’s
Jenkins III motion as not ripe. It also denied the
request to postpone the hearing on unitary status and
decided that the
16
appointment of a settlement coordinator would be more
beneficial after a hearing on the State’s unitary status
motion had been held. The court stated that:
[It] agreed with plaintiffs that the best
resolution of this case would be an agreed-upon
plan for ending Court supervision of the St.
Louis Public Schools. The Court however is
reluctant to continue the hearing. It may well
be that the possibility for settlement will be
greater following the hearing, at which time the
appointment of a Settlement Coordinator would be
appropriate and beneficial.
G(1939)96 at 2. The State did not appeal the order
denying its Jenkins III motion.
In March 1996, following extensive discovery, the
district court conducted a three-week unitary status
hearing. Following the hearing, it appointed Dr. William
H. Danforth, former Chancellor of Washington University
of St. Louis, as the settlement coordinator. It gave the
coordinator broad powers designed to stimulate
negotiations and directed the parties and their counsel
to attend all meetings scheduled by the settlement
coordinator and to participate in good faith in the
negotiations. It ordered “that all components of the
settlement agreement now in force shall continue as they
are currently operating.” G(2062)96.
On June 26, 1996, the district court, responding to
a motion by the State, held that settlement negotiations
would be kept confidential, that the settlement
coordinator should not recommend to the court how the
case should be resolved, and refused to set a time limit
17
for the parties to continue negotiations, indicating it
was confident that the settlement coordinator would
proceed with all diligence. G(2134)96.
On July 24, 1996, the State appealed district court
orders G(2062)96 and G(2134)96, and sought a stay of the
interdistrict component of the desegregation remedy
pending appeal of the order appointing the settlement
coordinator. It sought alternative remedies limiting its
obligations under the desegregation plan. The district
18
court denied motions for a stay pending appeal on August
14, 1996. G(2175)96. This court and Justice Thomas, as
Circuit Justice, denied substantially similar motions for
a stay. The State again appealed the denial of the stay
motion. This court consolidated and then dismissed all
pending appeals. We noted that G(2062)96 and G(2134)96
were interlocutory and related to settlement procedures
and case management and could not be characterized as
appeals from orders denying an injunction. We stated
that “[a] district court, particularly in school
desegregation cases, has broad discretion to control its
docket and has the necessary flexibility to shape
remedies that adjust public and private needs.” Liddell
v. Board of Educ., 105 F.3d 1208, 1212 (8th Cir. 1997).
With respect to G(2175)96, we stated:
The State argues that the district court erred
because it effectively denied its motion for
unitary status. We disagree. The district
court has yet to rule on the State’s unitary
status motion. The district court in this case
has not refused to rule on the State’s motion
that the St. Louis School District be declared
unitary. It has simply postponed post-hearing
briefing and deferred final ruling on this
matter. We cannot review a matter that has not
been ruled on by the district court. We lack
jurisdiction over the State’s claim that the
district court has erroneously denied its motion
for unitary status.
Id. The State filed a petition for rehearing en banc;
that petition was denied on May 7, 1997. No petition for
a writ of certiorari was filed.
19
On March 14, 1997, the State moved the district court
for an order directing that all parties immediately cease
efforts to recruit and admit new students into the VITP
and relieve the State from any funding obligations with
respect to such students. The State made the same
argument in this motion as it made in Liddell v. Board of
Education, 105 F.3d 1208 (8th Cir. 1997), that the VITP
violates Jenkins III. On April 10, 1997, the district
court denied the State’s motion, stating that it did so
for the
20
reasons set forth by the responses of certain county
districts, the United States, the Caldwell-NAACP
plaintiffs, and the City Board. The State now appeals.6
The District Court Did Not Abuse Its Discretion in
Denying the
State’s Motion to Phase Out the VITP
The State appeals from a district court order denying
its motion for an order (1) directing that all parties
and all court advisory panels immediately cease all
efforts to recruit and admit new students into the VITP,
and (2) relieving the State from any funding obligations
as to such students. We ruled against the State on a
similar question only eight months ago and held that the
district court did not abuse its discretion in denying
the State’s request. Liddell, 105 F.3d at 1212. No new
arguments are advanced that cause us to change our
position at this time. Settlement negotiations are still
ongoing. At oral argument, counsel for the State
asserted that settlement negotiations have reached an
6
The County Districts maintained that, while they took no position regarding
when the VITP might be phased out, a sufficient amount of “lead time” would be
necessary to prevent disruption to students, parents, and staff as well as to preserve the
interests of sound budgetary and operational management. The United States
contended that the settlement process should be permitted to run its course and that the
State’s Jenkins III motion was not yet ripe. The Caldwell plaintiffs argued that the
State had already lost its challenge to the continuation of the VITP and questioned the
State’s public posturing during the settlement process. They maintained that the State
had made no showing that the city schools, faculty, etc. were capable of absorbing
returning students if the VITP were terminated. The City Board argued that the State’s
motion should be denied because it undermined the settlement process, failed on the
merits, and violated the mandate from Freeman v. Pitts, 503 U.S. 467 (1992), that
requires a transition phase for the orderly withdrawal of court supervision.
21
impasse, but counsel for all the other parties disagreed.
As all parties are bound by a district court order to
maintain confidentiality and as the settlement
coordinator has not yet filed a report indicating an
impasse, we
22
can only assume the settlement coordinator is making
every effort to resolve the many complex issues that must
be addressed.7
It is important to bear in mind that the current
school desegregation plan is based on a “unique and
comprehensive settlement agreement” approved by this
court sitting en banc in 1984. Liddell, 731 F.2d at
8
1297. We note that all parties other than the State have
indicated a willingness to continue essential elements of
the plan, including the interdistrict transfer of black
city students to the County Districts.
Settlement is the preferred method of resolving
protracted school desegregation cases. As recently as
7
We note that as recently as September 10, 1997, the attorney general of the
State of Missouri made public a new proposal to end the litigation. We assume the
settlement director and all parties to this litigation were notified of the proposal and that
this proposal, as well as others, will be considered by the parties in settlement
negotiations.
8
This desegregation plan resulted from a settlement agreement encouraged by the
Honorable William L. Hungate, United States District Judge for the Eastern District of
Missouri. In encouraging the parties to settle, he stated:
Society’s greatest opportunities lie in encouraging human inclinations
toward compromise, rather than stirring our tendencies for competition
and rivalry. If lawyers, educators, and public officials do not help
marshall cooperation and design mechanisms that promote peaceful
resolution of conflicts, we shall miss an opportunity to participate in the
most creative social experiments of our time.
Liddell v. Board of Educ., 567 F. Supp. 1037, 1041 (E.D. Mo. 1983) (citation omitted).
23
1990 in considering the proposed settlement of the Little
Rock School District desegregation case, we stated:
24
The law strongly favors settlements. Courts
should hospitably receive them. This may be
especially true in the present context--a
protracted, highly divisive, even bitter
[desegregation] litigation, any lasting solution
to which necessarily depends on the good faith
and cooperation of all the parties, especially
the defendants. As a practical matter, a remedy
that everyone agrees to is a lot more likely to
succeed than one to which the defendants must be
dragged kicking and screaming.
Little Rock Sch. Dist. v. Pulaski County Special Sch.
Dist. No. 1, 921 F.2d 1371, 1383 (8th Cir. 1990).
Consistent with this court’s preference, we recently
approved a settlement agreement in the Kansas City School
District desegregation case. Jenkins v. Missouri, No. 97-
1968, slip op. at 35 (8th Cir. Aug. 12, 1997).9
Given the long history of state-mandated, segregated
schools, the complexity of the issues, and the difficulty
of developing a plan that will ensure that students of
all races will have a continuing equal opportunity for a
quality, integrated education, the district court did not
abuse its discretion in denying the State’s motion to
phase out the voluntary transfer of black city students
to the County Districts pending settlement negotiations.
9
The general principle that the law favors settlement agreements has been
recognized for over 100 years. See Williams v. First Nat’l Bank, 216 U.S. 582, 595
(1910) (compromises of disputed claims are favored by the courts) (citing Hennessy
v. Bacon, 137 U.S. 78 (1890)). This principle is recognized in desegregation cases.
Armstrong v. Board of Sch. Dirs., 616 F.2d 305, 313 (7th Cir. 1980)); Jones v. Caddo
Parish Sch. Bd., 704 F.2d 206, 221 (5th Cir. 1983). See also Daniel J. McMullen and
Irene Hirata McMullen, Stubborn Facts of History--The Vestiges of Past
Discrimination in School Desegregation Cases, 44 Case W. Res. L. Rev. 75 (1993)).
25
There can be no doubt as to the complexity of the
issues that need to be resolved either by settlement or
court order. For example, over the course of several
years, approximately 12,000 black city students per year
have voluntarily transferred from city schools to county
schools. Ending or phasing out this program will
inevitably lead to
26
a significant increase in the black population of the St.
Louis School District and may well result in the
resegregation of the St. Louis schools through something
other than a change in demographic factors. Moreover,
the desegregation plan involves remedial programs, magnet
schools, student assignments, teacher exchanges, and
other programs designed to give students of all races an
equal opportunity for a quality, integrated education,
each of which must be independently considered pursuant
to Green v. New Kent County School Board., 391 U.S. 430
(1968), and Freeman v. Pitts, 503 U.S. 467 (1992). From
the beginning, the plan has relied on state and city
funding. All elements of the plan have been repeatedly
subject to district and circuit court review, many of
which became the subject of petitions for writs of
certiorari to the United States Supreme Court. See note
1, supra. Under these circumstances, we do not believe
that the district court abused its discretion in refusing
the State’s request to enjoin the parties and panels from
immediately ceasing all efforts to recruit and admit new
students into the VITP and relieve the State from any
funding obligations as to such students pending
settlement negotiations.
The Unitary Status Motion
In the event the district court determines that an
impasse in the settlement negotiations has been reached,
it must then decide the State’s pending motion to have
the St. Louis School District declared unitary and
determine the consequences that flow from that decision.
In reaching these decisions, the district court shall be
guided by the Supreme Court’s decisions in Freeman,
27
Dowell v. Board of Education of Oklahoma City Public
Schools, 498 U.S. 237 (1991), and Green.
It is clear from these decisions, particularly
Freeman and Dowell, that the Supreme Court requires that
once a school district has achieved unitary status, a
district court should not deny that status to a school
district because of demographic factors or changes since
the desegregation plan was initiated. The Court made
clear in Dowell
28
that on obtaining unitary status, the defendant school
district would not return to its former ways.10
Herein lies the problem. The historical record
reveals that significant progress has been made in
providing equal opportunities through the programs that
have been in effect for several years. As previously
noted, if some or all of these programs are ended by a
declaration that the St. Louis School District has
achieved unitary status, then the immediate effect will
most probably be a significant resegregation of the city
schools. The inescapable result would be that
approximately 12,000 black students would be reassigned
to the city schools, thereby increasing the degree of
segregation in those schools. Unlike the situation in
Freeman and Dowell, the resegregation would not result
from changed demographic factors. Moreover, segregation
may very well be increased in the city schools if the
magnet or remedial programs are either eliminated or
limited in scope and the students are reassigned on the
basis of neighborhood schools rather than on the current
basis, which is designed to secure the maximum
10
The Court stated that:
In the present case, a finding by the District Court that the Oklahoma City
School District was being operated in compliance with the commands of
the Equal Protection Clause of the Fourteenth Amendment, and that it was
unlikely that the Board would return to its former ways, would be a
finding that the purposes of the desegregation litigation had been fully
achieved. No additional showing of ‘grievous wrong evoked by new and
unforeseen conditions’ is required of the Board.
Dowell, 498 U.S. at 247.
29
desegregation practicable.11 We do not say and are not
prepared to say at this time how the mandate of the
Supreme Court, particularly in Dowell that
11
It may well be, as Freeman points out, that some elements of the program are
unitary and will remain so if that status is declared. The Supreme Court states that each
element is to be treated independently. Freeman, 503 U.S. at 489.
30
resegregation should not result from a declaration of
unitary status, can be achieved; but the issue is one
that must be dealt with either in settlement negotiations
or by district court order.
The State does not dispute the fact that ending the
voluntary interdistrict transfer of black city students
to the County Districts and limiting its other
responsibilities will probably result in some
resegregation of the city schools. Nor does it dispute
that black students in St. Louis were either denied an
education or limited to attending segregated schools for
at least 140 years, resulting in savings to the St. Louis
School District and the State. See Adams v. United
States, 620 F.2d 1277 (8th Cir. 1980). Rather than
address these issues, the State argues that it has
expended large sums of money in the twenty years that
this program has been in effect, it has done its share,
and the time has come to end its responsibilities in the
matter. In support of ending its obligations, the State
points to the fact that it has initiated a number of
programs that have particular benefit to disadvantaged
city students12 and has publicly proposed to settle its
obligations by making a lump sum payment to the St. Louis
School District.
The district court must take all of these factors
into consideration in determining whether to grant full
12
These programs include a comprehensive school improvement program,
reading intervention programs, drug-free schools program, emphasis on early childhood
education, early childhood programs, AIDS awareness education, unwed mothers’
education, gun-free schools, provision of medical services to Medicaid-eligible school
children, and Missouri’s nationally-renowned “Parents as Teachers” program. See Mo.
Rev. Stat. §§ 162.300; 167.268, .270, .294, .606; 191.668; 195.214; 571.030.
31
or partial unitary status and what the defendants’
continuing obligations will be if such status is granted.
We will not prejudge that matter or issue an advisory
opinion. We merely repeat that the complexity of the
issues involved support the view heretofore expressed
that the best way to resolve these problems and provide
a quality, integrated education to all city students is
through good-faith settlement negotiations.
32
The Jenkins III Issue
The State’s principal argument is that the district
court is without discretion in this matter and that
Jenkins III requires that the VITP be phased out now. We
do not agree that Jenkins III requires this result. A
premise of Jenkins III was that the trial court
specifically found that no interdistrict violation had
taken place. No such determination has been made here.13
To the contrary, from the beginning the plaintiffs
asserted interdistrict violations. Rather than contest
these allegations, the County Districts entered into a
settlement agreement under which they agreed to accept a
significant number of transfer students and in return
were promised judgments relieving them from any possible
constitutional violations. Under these circumstances, it
would be wholly inappropriate for this court to make an
initial determination with respect to an interdistrict
violation.
Making such a determination would invade the
province of the district court and would be unfair to the
parties by denying them the opportunity, should it become
necessary, to litigate the interdistrict violation issue.
To require the County Districts to litigate this issue
now, after voluntarily accepting thousands of city
transfer students for twenty years, would violate their
fundamental right to due process. The plaintiffs would
13
Justice O’Connor stated in Jenkins III in discussing the Kansas City School
District, “Neither the legal responsibility for nor the causal effects of . . . racial
segregation transgressed its boundaries, and absent such interdistrict violation or
segregative effects, Milliken and Gatreaux do not permit a regional remedial plan.”
Jenkins III, 115 S. Ct. at 2059 (O’Connor, J., concurring).
33
be equally deprived if they were denied the opportunity
to prove interdistrict violations. Moreover, the
fundamental and undisputed fact remains that the State
has been found to be the primary constitutional violator,
and this court has consistently held in panel and in en
banc opinions that the State could be required to fund
the VITP. See note 1, supra. Even if it were
appropriate for us to address that issue today, however,
this court could not make a proper determination without
a complete record. In order
34
to apprehend fully the constitutional violations as they
existed many years ago, we must employ something more
rigorous than hindsight, guesswork, and speculation.
In Jenkins III, Chief Justice Rehnquist, speaking for
the Court, stated that the Kansas City desegregation plan
was grounded in “improving the desegregative
attractiveness of the” Kansas City, Missouri School
District (KCMSD). Jenkins III, 115 S. Ct. at 2050.
Here, neither “desegregative attractiveness” nor
“suburban comparability” were the basis of the settlement
agreement or the district court’s or this court’s
approval of the settlement plan. Rather, the plan was
premised on the fact that both the State and the County
Districts opposed consolidation of the city and county
districts and a voluntary transfer plan could and would
be an integral factor in desegregating the city schools.
Everyone but the State agreed to this solution, and it
offered no alternative designed to secure the black city
students an opportunity for an equal education. The
premise has proven valid, and the St. Louis schools have
achieved a high degree of integration.
We also note that Justice O’Connor, who concurred in
the plurality opinion in Jenkins III, stated that the
district court found “that the segregative effects of
KCMSD’s constitutional violation did not transcend its
geographical boundaries.” Jenkins III, id. at 2060. As
previously noted, there has been no such finding in this
case. Indeed, the parties are still at odds as to
whether interdistrict violations occurred; and rather
than have this argument resolved after lengthy
litigation, the plaintiffs, the City Board, the County
Districts, and the United States agreed to the VITP.
35
Justice O’Connor also noted the limited nature of the
Jenkins III decision and remand, stating that “[t]he
Court today discusses desegregative attractiveness only
insofar as it supports the salary increase order under
review, . . . and properly refrains from addressing the
36
propriety of all the remedies that the District Court has
ordered, revised, and extended in the 18-year history of
this case.” Id. at 2061.14
There is, of course, language in the majority opinion
in Jenkins III suggesting that no interdistrict relief
can be granted unless an interdistrict violation or
segregative effects have been proved. This language must
be tempered by the facts in Jenkins III and limited
nature of the actual holding. In our view, the question
remains sufficiently open to permit us to follow our
numerous precedents and hold that Jenkins III does not
require us to hold that the VITP must be terminated or
phased out at this time.
Conclusion
We affirm the order of the district court denying the
State’s motion to end all efforts to recruit and admit
new students into the VITP for the 1997-98 school year.
The district court did not abuse its discretion in
denying the State’s motion to phase out the voluntary
transfer of black city students to the County Districts
pending settlement negotiations. Its decision to do so
was not contrary to the Supreme Court’s decision in
Jenkins III. We renew our encouragement to the parties
to make every effort to resolve this matter so that
14
The district court determined that the KCMSD had attained unitariness in only
one of the five aspects enumerated in Green, 391 U.S. at 435. Jenkins v. Missouri, No.
77-0420-CV-W-RGC, slip op. at 28-37, 59 (W.D. Mo. Mar. 25, 1997). We affirmed
the district court’s order. Jenkins v. Missouri, No. 97-1968, slip op. (8th Cir. Aug. 12,
1997).
37
students of all races will have a continuing equal
opportunity for a quality, integrated education. In the
unfortunate event that the negotiations reach an impasse,
the district court should promptly rule on the pending
unitary status motion.
38
A true copy.
Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
39