Michael Liddell v. State of Missouri ( 1997 )


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  •                 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