Jenkins v. Missouri , 807 F.2d 657 ( 1986 )

JOHN R. GIBSON, Circuit Judge.

This case arises from claims of unconstitutional racial segregation of school children in the Kansas City metropolitan area. After trial, the district court¹ imposed an intradistrict remedy against the Kansas City, Missouri School District (KCMSD) and the State of Missouri with the State bearing approximately three-fourths of the cost. The district court found that the KCMSD and the State had not eradicated vestiges of the racially segregated dual school system once required under state law in violation of the Constitution. The claim for interdistrict relief in the form of consolidation or realignment of the suburban school districts (SSDs) was rejected as the SSDs were found to have eliminated all vestiges of their segregated school systems and there was no finding of interdistrict violation or interdistrict effect. The SSDs were dismissed from the action. The United States Department of Housing and Urban Development (HUD) also was held not liable. In this appeal, both the KCMSD and Kalima Jenkins, the named plaintiff in a certified class of present and future KCMSD students (Jenkins class),² challenge the denial of interdistrict relief. The Jenkins class also appeals the judgment in favor of HUD. In addition, both the KCMSD and the State challenge the scope and the allocation of costs of the intradis-trict remedy ordered against each.

The district court’s findings and conclusion that the suburban school districts are not liable for interdistrict violation and may not be ordered to participate in interdistrict relief, on those issues not related to housing, are affirmed by the vote of five judges (Judges Ross, Fagg and Wollman join in this opinion; Judge Arnold concurs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).

The interdistrict findings and conclusion on the housing issues are affirmed by an equally divided court (Judges Ross, Fagg and Wollman join in this opinion; Judge Arnold files a concurring and dissenting opinion in which he concludes that the case should be remanded to the district court to consider whether there are interdistrict housing violations which would require relief; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).

The dismissal of the SSDs and HUD at the close of the plaintiff’s evidence is therefore affirmed.

The intradistrict remedy ordered against the State of Missouri and KCMSD is modified in some respects with five judges concurring (Judges Ross, Fagg and Wollman join in the opinion and Judge Arnold concurs in the result; Chief Judge Lay, joined by Judges Heaney and McMillian, dissents).

This suit was filed in 1977 by the KCMSD, the School Board, and four children of two School Board members. The complaint alleged that the State, surrounding school districts in Missouri and Kansas, and several federal agencies including HUD ³ had helped cause or had been part of a system of racial segregation among Kansas City metropolitan area school districts. In October 1978, the district court dismissed the Kansas defendants for want of jurisdiction. It also concluded that the KCMSD lacked standing to bring an action against the State as party plaintiff and realigned the KCMSD as a defendant. School District of Kansas City, Missouri v. Missouri, 460 F.Supp. 421 (W.D.Mo. 1978).⁴

In May 1979, an amended complaint was filed against KCMSD, and the federal and Missouri defendants named in the original complaint. The amended complaint made two distinct allegations: first, of an inter-district violation, committed by the SSDs, and the State and federal defendants; and second, of an intradistrict violation within the KCMSD, committed by the KCMSD and the State defendants. KCMSD pursued its claim by filing, in July 1979, a cross-claim against the State, reiterating the allegation of interdistrict violation made by the Jenkins class, and seeking indemnification against any intradistrict liability.

Trial to the court commenced October 31, 1983.⁵ Over the course of 64 trial days, plaintiff called over 140 witnesses, offered 2,100 exhibits, and designated approximately 10,000 pages of depositions. Before hearing evidence in response, the district court, based on standards set out by the Supreme Court in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), dismissed the eleven SSDs from the case under Fed.R.Civ.P. 41(b).⁶ The court found that school districts in Missouri are autonomous and that none of the districts had committed any acts with intent to discriminate on the basis of race, to contain blacks in the KCMSD, or bar blacks from the SSDs. The court further found that within four years after Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (Brown I), and in most cases within a shorter time, all the SSDs had eradicated the vestiges of their dual school systems and were operating unitary systems. The court further found that none of the alleged discriminatory actions committed by the State or the federal defendants had caused any significant current interdistrict segregation. The district court therefore denied interdistrict relief. See generally Order of June 5, 1984.

The district court then heard additional evidence and, on September 17, 1984, issued its order holding the State and the KCMSD liable for racial segregation of students within the KCMSD. Jenkins v. Missouri, 593 F.Supp. 1485 (W.D.Mo.1984). The court observed that before 1954, the State and the KCMSD had maintained a racially segregated dual school system. The court found, in the existence of twenty-four KCMSD schools with a black enrollment in excess of 90%, and in other areas, vestiges of the now unlawful dual school system. It therefore held that the State, and the KCMSD, under principles announced by the Supreme Court in Brown v. Board of Education, 349 U.S. 294, 301, 75 5. Ct. 753, 756-57, 99 L.Ed. 1083 (1955) (Brown II), had failed in their affirmative duty to dismantle the unconstitutional pre1954 system. The court also held that HUD was not liable, finding that HUD had followed a balanced approach to sponsoring subsidized housing projects in both innercity and suburban areas.

On June 14, 1985, after a two-week hearing on the scope of appropriate relief, the court, 639 F.Supp. 19 (1985), issued a remedial order requiring the State and the KCMSD to fund compensatory and remedial educational programs and necessary capital improvements in KCMSD schools. The plan is projected to cost $87,000,000 over the next three years, with the State bearing approximately $67,000,000 and the KCMSD approximately $20,000,000. See Memorandum Opinion of June 14, 1985 at 41-42.

In this appeal the Jenkins class challenges the district court’s dismissal of HUD, and joined by KCMSD, its dismissal of the SSDs, and its denial of interdistrict relief. The KCMSD also challenges the district court’s realignment of the KCMSD as a party defendant. The State challenges the scope of the district court’s remedy and the allocation of costs.

INTERDISTRICT LIABILITY FINDINGS

In Milliken, 418 U.S. 717, 94 S.Ct. 3112, the Supreme Court held that an interdis-trict remedy may not be imposed absent a finding of a constitutional violation within one district producing a significant segre-gative effect in another school district. Id. at 744-75, 94 S.Ct. at 3127. Without an interdistrict violation and interdistrict effect, there is no constitutional wrong requiring an interdistrict remedy. Id. Plaintiffs advanced to the district court three theories to support their claim of interdis-trict violation and effect, requiring the imposition of an interdistrict remedy in the form of consolidation of the KCMSD and SSDs:

[Fjirst, that the SSDs, as agents of the state, were guilty of operating a regional system of segregated schools that centered on and impacted Kansas City with blacks and made the suburbs whiter before 1954; second, that the SSDs failed in their affirmative duty to eliminate the vestiges of the dual school system; and third, that the SSDs are liable for the effects of actions by the KCMSD and other defendants and can therefore be included in an interdistrict remedy.

Order of June 5, 1984 at 5. The district court found, based on the Milliken holding, that there was lack of proof of discriminatory intent in the establishment or change of any school district boundary and thus distinguished the interdistrict cases upon which the plaintiffs relied. It rejected the arguments that the SSDs were not separate and autonomous but were instead agents of the State. It further rejected the argument that, as agents and subdivisions of the State, the SSDs must be included in an interdistrict remedy absent any finding that they had committed specific violations by their own initiative.

The court examined the plaintiffs’ argument that the pre-1954 dual school systems had caused racial segregation in the Kansas City metropolitan area. The court acknowledged the substantial increase in the KCMSD black population from 1910 to 1960, but found that the increase resulted principally from the unusual economic and employment ramifications of the World Wars and intervening Depression. Order of June 5, 1984 at 17. The absence of black schools in the SSDs, it found, had not discouraged black families outside or within Missouri from moving to and living in those districts. The district court also rejected the argument that within the SSDs any vestiges or significant effects of the pre-1954 dual school system remained. The acts thirty years past, the court found, had negligible current effects. While some of the SSDs had dual school systems in the pre-1954 era and some did not,⁷ after Brown I each had disestablished its pre-1954 school system with deliberate speed and all vestiges of those systems have long since disappeared. The district court entered separate findings with respect to each SSD. It found that all were unitary, most by 1955, in immediate compliance with the mandate of Brown I, two more by the 1957-58 school year, and the last, Park Hill, was fully integrated by the 1959-60 school year. Id. at 43-95.

The court then considered the plaintiffs’ second theory, that the SSDs had failed in their duty, pursuant to the mandate of Brown II, to eliminate vestiges. The district court found that the establishment of an association of regional school districts did not negate the autonomy of the individual SSDs, and that the sharing of sales tax revenues by certain of the SSDs whose area may have been partly within the Kansas City, Missouri, city limits did not amount to a constitutional violation. Id. at 19-21. Further, a juvenile home, local special and vocational education programs, and particularly the creation of certain vocational education districts were examined and found not to have been constitutional violations on the part of the SSDs. Id. at 21-26. The district court also examined a statute enacted by the Missouri General Assembly in 1957 enlarging the size of a city that should constitute a single school district.⁸ The court found that the enactment was not driven by an intent to concentrate black students within KCMSD, and therefore, was not an intentional interdis-trict violation. Id. at 28-29. The court also examined the SSDs’ response to recommendations of the Spainhower School District Commission of 1979, regarding realignment of boundaries so as to create some twenty school districts in the state, and with respect to financing and local control, and found no evidence that any of the SSDs rejected or declined to consider these proposals for reasons at all related to race. It further rejected arguments based upon employment practices in the SSDs.

The district court finally analyzed in detail plaintiffs’ third theory, that the SSDs may be included in an interdistrict remedy because the effects of others’ discriminatory acts were felt within the SSDs. It found no evidence that white families had been lured to or black families discouraged from living in the SSDs. Nor did any of the factual evidence concerning housing implicate any of the SSD defendants. Id. at 34-35. The steady increase in black enrollment in the SSDs since 1968, particularly in Raytown, Hickman Mills, Center, and Grandview districts,⁹ and the fact that in 1980, 23,434 blacks resided outside the principal contiguous area was found to refute the testimony of plaintiffs’ experts. The court rejected white-flight theory as a constitutional violation by the SSDs. Id. at 36-39.

The district court also addressed plaintiffs’ claims regarding housing violations. While the court found that before 1948, in several areas within the SSDs restrictive covenants were enforced, the court further found that such enforcement did not have a current significant segregative effect.¹⁰ With respect to public housing, it found that such housing is available in significant amounts within every SSD and that the HUD section 8 program is available in all parts of the metropolitan area. No testimony linked any SSD to the transition of neighborhoods within the KCMSD from white to black and the accompanying white flight which had taken place in Kansas City since 1940. Id. at 41.

The court therefore concluded that there was no interdistrict violation and interdis-trict effect. Thus, as required by Milliken, interdistrict relief was denied. Id. at 95. The court stressed that awarding relief “ ‘would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.’ ” Id. at 96 (quoting Milliken, 418 U.S. at 746, 94 S.Ct. at 3128). It rejected a cumulative effect and found plaintiffs’ evidence de minimis at most and legally insufficient to justify the relief sought against the SSDs. Id. at 97-98. The court thus dismissed the case against the SSDs.

INTRADISTRICT LIABILITY FINDINGS

The district court then tried the intradis-trict issues and found that the inferior education indigenous to the State-compelled dual school system has lingering effects in the KCMSD. Jenkins v. Missouri, 593 F.Supp. at 1492. The district court recognized the stipulation that before 1977 KCMSD was not unitary and did not comply with federal regulations. Id. at 1489. KCMSD was majority white in enrollment until 1970 and could have achieved mathematical racial balance in its schools. Id. at 1492. Instead, it chose to operate some completely segregated schools and other integrated ones. In 1974, twenty years after Brown I, 39 schools were more than 90% black; another 38 had 10% to 90% black enrollment. Eighty percent of all blacks in the district attended schools that were 90% black. Only 19% of the blacks attended a school that was 10% to 90% black. Id. at 1492-93. As of 1977, 25 one-race schools under the pre-1954 system remained 90% or more of the same race. Id. In addition, four schools that were black under the dual system were predominantly black when closed in 1968. Id. at 1492. In the 1983-84 school year no KCMSD school had less than 30% black enrollment, but 24 schools were racially isolated at more than 90% black. Id. at

1493.

The court found that the KCMSD still has not entirely dismantled the dual school system. The court then made particular findings on the liberal transfer policy, the neighborhood school policy, and attendance zones, and found that these, rather than facilitating integration, fostered the maintenance of segregated attendance patterns. Intact busing was found to have been seg-regative in intent and effect, but, as it was stopped in the 1960’s, no continuing violation existed. The court found that plans had not been adopted for district-wide desegregation until 1977-78. Id. at 1493-94.

Similarly, the court imposed liability on the State based on its intentional creation of the dual school system and the obligation that existed to disestablish such a system.¹¹ As vestiges of the State’s dual school system lingered in KCMSD, the obligations of KCMSD and the State had not been met. The court rejected the State’s argument that constraints imposed by the state constitution or statutes prevented its affirmative disestablishment of the ■ dual school system. It held the issues in favor of the Jenkins class and against KCMSD and the State and held the issues in favor of KCMSD and against the State on the cross-claim. Id. at 1505.

LIABILITY OF HUD

With respect to the claim against HUD, the court examined Federal Housing Administration appraisal practices before 1949, cooperative agreements with the City of Kansas City under the auspices of the Housing Authority of Kansas City (HAKC) and the Land Clearance for Redevelopment Authority (LCRA), and section 8 certificates. It found that HUD followed a balanced housing policy and attempted to insure that assisted housing was located in both innercity and suburban areas. There was no evidence that HUD’s site selection and approval practices for federally subsidized multi-family housing substantially affected the racial composition of schools within KCMSD. Id. at 1499. The court pointed to HUD’s affirmative marketing efforts to apprise participating section 8 certificate-holders that affordable housing was available throughout the entire community. Id. at 1500. There was no evidence that HUD routinely denied blacks FHA mortgages, that it discriminatorily foreclosed on mortgages held by blacks, or that it avoided selling the homes on which its insured mortgages had been foreclosed to blacks. Further, there was no evidence that neglect of HUD-held homes was racially discriminatory in intent or purpose. The issues were held in favor of HUD.

I.

We have had earlier occasion to deal with the legal standards governing interdistrict school desegregation cases. See, e.g., Little Rock School District v. Pulaski County Special School District No. 1, 778 F.2d 404 (8th Cir.1985); Liddell v. Missouri, 731 F.2d 1294 (8th Cir.), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984).¹² We draw our basic guidance from the Supreme Court’s decision in Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974):

Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation. Thus an interdistrict remedy might be in order where the racially discriminatory acts of one or more school districts caused racial segregation in an adjacent district, or where district lines have been deliberately drawn on the basis of race. In such circumstances an interdistrict remedy would be appropriate to eliminate the interdistrict segregation directly caused by the constitutional violation. Conversely, without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an inter-district remedy.

418 U.S. 744-75, 94 S.Ct. at 3127 (citations omitted).

Two courts of appeals have read this language to require clear proof of cause and effect of a constitutional violation, and a careful delineation of the extent of the effect, before an interdistrict remedy may be invoked. Goldsboro City Board of Education v. Wayne County Board of Education, 745 F.2d 324, 332 (4th Cir.1984); Lee v. Lee County Board of Education, 639 F.2d 1243, 1256 (5th Cir.1981). As the Fifth Circuit stated in Lee:

We believe the Court’s deliberate choice of phrases such as “substantial” or “direct cause” and “significant segregative effect” also expresses an insistence that in cases where an interdistrict remedy is requested, there must be clear proof of cause and effect and a careful delineation of the extent of the effect. In the absence of such a showing, school district lines are to be carefully observed and desegregation remedies confined to orders affecting the school district in which the condition of segregation is manifest.

Id. at 1256.

In addition to “clear proof” of the interdistrict violation and its interdistrict effect and “a careful delineation” of the extent of the interdistrict effects, it must be shown that the interdistrict segregative effects are current. Lee, 639 F.2d at 1260. Federal courts may not invoke their equitable power to fashion a remedy to correct a condition unless it currently offends the Constitution. As the Court stated in Milliken: “A federal remedial power may be exercised ‘only on the basis of a constitutional violation' and, ‘[a]s with any equity case, the nature of the violation determines the scope of the remedy.’ ” Id. at 738, 94 S.Ct. at 3124 (quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971)); see also General Building Contractors v. Pennsylvania, 458 U.S. 375, 399, 102 S.Ct. 3141, 3154-55, 73 L.Ed.2d 835 (1982) (a remedial decree should “extend no farther than required by the nature and the extent of that violation”).

II.

We must also recognize at the outset the importance of the district court’s factual findings in school desegregation cases. As we stated in Little Rock:

We will not reverse the district court’s factual findings with respect to liability unless we conclude that they are clearly erroneous. Fed.R.Civ.P. 52(a); Anderson v. City of Bessemer City [470 U.S. 564], 105 S.Ct. 1504 [84 L.Ed.2d 518] (1985); Pullman-Standard v. Swint, 456 U.S. 273, 287-90 [102 S.Ct. 1781,1789-91, 72 L.Ed.2d 66] (1982); Dayton II [v. Brinkman], 443 U.S. [526] at 534 n. 8 [99 S.Ct. 2971 at 2977 n. 8, 61 L.Ed.2d 720 (1979)]; Columbus Board of Education v. Penick, 443 U.S. [449] at 468-71 [99 S.Ct. 2941 at 2952, 2983, 61 L.Ed.2d 666 (1979) ] (concurring opinions of Burger, C.J., and Stewart, J.); United States v. United States Gypsum Co., 333 U.S. 364, 395 [68 S.Ct. 525, 542, 92 L.Ed. 746] (1978). Nor will we reverse such findings when they are based on inferences from other facts unless the rigorous standards of the same rule are met. Anderson, 105 S.Ct. at 1511. The Supreme Court has emphasized the importance of the clearly erroneous rule in civil rights cases, see, e.g., Pullman-Standard v. Swint, 456 U.S. at 287-90 [102 S.Ct. at 1789-91], and, more particularly, in school desegregation cases:

The elimination of the more conspicuous forms of governmentally ordained racial segregation * * * counsels undiminished deference to the factual adjudications of the federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.

Columbus Board of Education v. Pen-ick, 443 U.S. at 449, 470 [99 S.Ct. at 2941, 2983] (1979) (Stewart, J., concurring, with whom Burger, C.J., joins, concurring).

Little Rock, 778 F.2d at 410-11. See Morrilton School District No. 32 v. United States, 606 F.2d 222, 230 (8th Cir.1979), cert. denied, 444 U.S. 1071, 100 S.Ct. 1015, 62 L.Ed.2d 753 (1980); see also Riddick v. School Board of the City of Norfolk, 784 F.2d 521, 533 (4th Cir.1986) (factual findings by a district court in school desegregation cases are entitled to great deference on review “especially where the presiding judicial officer has lived with a case for many years”).

The Supreme Court in Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), has explained that the trial judge’s role is to determine fact, and duplication of these efforts in the courts of appeals “would very likely contribute only negligibly to the accuracy of fact determination.” Id., 105 S.Ct. at 1512. The Court stated:

The reviewing court oversteps the bounds of its duty under Rule 52 if it undertakes to duplicate the role of the lower court. “In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 [89 S.Ct 1562, 1576, 23 L.Ed.2d 129] (1969). If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

Id. at 1511-12.

Chief Judge Lay’s dissent,¹³ in violation of the teachings of Anderson, duplicates the role of the district court and is an exercise in appellate factfinding. A reading of the dissent is sufficient to demonstrate the rejection of the district court’s carefully weighed findings of fact and substitution of those more desirable, frequently based on evidence considered and rejected by the district court.¹⁴ While on some occasions placing the mantle of the clearly erroneous rule about the discussion, it is evident that Chief Judge Lay was engaging in an original evaluation of the voluminous and ofttimes contradictory record seeking an ultimate conclusion more satisfactory than that reached by the district court. This is directly contrary to the mandate of Anderson.

III.

The Jenkins class does not challenge the findings of the district court. Rather, it argues that the findings establish continuing interlocking, interdistrict violations whose cross-district nature and metropolitan-wide scope require relief encompassing the SSDs. It argues particularly that there is an interdistrict violation or effect under Milliken and Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976), and points to several independent bases for interdistrict relief. These are: the pre-1954 interdistrict system of locating dual schools; the State’s and the SSDs continuing interdistrict violations; KCMSD’s officially sanctioned suburban flight violation; the State’s market-wide dual housing systems; and LCRA and HAKC’s racial steering and siting violations.

The Jenkins class further argues that the district court denied interdistrict relief based on a “concatenation of legal error” as to interdistrict liability. It argues that in six respects the district court abandoned controlling legal principles in concluding that: the existence of dual schools before 1954 does not now amount to a constitutional violation; the SSDs were autonomous and independent; the SSDs were absolved of liability for their pre-1954 violations and erroneously ignoring the post-1954 segregative acts and omissions; without a finding of fault, the SSDs may not be required to take part in eliminating the effects on children in their districts of the State's metropolitan-wide dual school and housing violations; the SSDs did not invidiously entice white families to move into their district, and that unconstitutional actions within one district making it blacker which reciprocally affects adjacent districts by making them whiter may not provide an independent basis for interdistrict relief; and absent intentional segregative acts by each school board sought to be included, a finding of liability against actors in the housing market is irrelevant to the SSDs. The housing argument will be discussed separately in IV and V.

Finally, the Jenkins class argues that the district court applied an improper burden and standard of proof of significant effects in an improperly piecemeal fashion. It further argues that the district court improperly fragmented the evidence of unconstitutional acts rather than evaluating the evidence as a whole. It argues that the district court’s finding of six distinct metropolitan-wide constitutional violations satisfies Milliken’s significant segregative effect standard. It urges under Swann that proof of a system with a history of segregation warrants a presumption against schools that remain disproportionate in their racial composition. It argues that the proof acknowledged by the court, of prior de jure segregation on an area-wide basis, coupled with a patently continuing racial imbalance among the SSDs’ student and faculty compositions, established the liability of the SSDs. It further argues that the district court improperly rejected much of the evidence, and improperly barred the presentation of quantitative evidence, as irrelevant.

The broad scope of these arguments is considerably narrowed when viewed in light of significant factual findings of the district court. These findings are not challenged as clearly erroneous. The district court found that the SSDs were autonomous and locally controlled,¹⁵ and that the State was powerless to require a merger or consolidation.

The district court recognized the stipulation that before 1954 the State mandated dual school systems and mandated SSDs’ compliance in maintaining dual systems. It found that all SSDs met their constitutional obligation to operate a unitary school system within a maximum of four years after Brown I, most of them doing so within one year. The dismantling of the dual system was accomplished with all deliberate speed. Order of June 5, 1984 at 99. It specifically found that the evidence established that there was no barrier to movement of blacks into the SSDs. Id. at 39. It found the pre-Brown acts thirty years past to have negligible present effects. It further found that the faculty and staff composition of the SSDs do not affect the racial composition of the student bodies. The court found the faculty were hired and promoted on a racially neutral basis. The court could not conclude that there was an interdistrict violation from any possible mtradistrict factors.

The factual argument based on the pre-Brown interdistrict system of locating dual schools. flies in the face of the district court’s finding that the pre-Brown acts have negligible present effects. Chief Judge Lay’s dissent suffers from a similar infirmity as the district court made numerous findings interspersed through its order concerning the negligible and de minimis nature of any such effects. These findings are not clearly erroneous.¹⁶ These findings make unnecessary a detailed recitation of the pre-1954 evidence.

The argument that the State and SSDs participated in continuing interdistrict violations is contrary to the district court’s finding that the SSDs had met their constitutional obligation to operate unitary school systems within four years after Brown I, most of them doing so within a year. Similarly, the argument that KCMSD officially sanctioned suburban flight looks first to KCMSD’s violation which the district court clearly found to be only intradistrict in nature. The argument based on flight into neighboring SSDs making the southeast area schools blacker and recipient SSD schools whiter, thereby causing racial segregation in adjacent districts, is contrary to the district court’s finding that there was no barrier of movement to blacks to the SSDs. The district court specifically found that there was considerable increase in the black enrollment of the SSDs, particularly Center, Grandview, Hickman Mills, and Raytown.

Similarly, in the enumeration of six legal errors, three are based upon pre-1954 actions of the SSDs. The district court’s findings that these acts have negligible present effect fundamentally undermines the validity of these arguments. As we have seen, the argument based on the actions of KCMSD and white flight run contrary to the factual findings mentioned above.

So also, the argument that the SSDs, though not at fault, would still be liable to take part in eliminating the effects on children in their districts of the State’s metropolitan-wide dual school violations, suffers from two fatal deficiencies. It ignores the lack of finding of any such effects, and is contrary to the district court’s findings that within at most four years after Brown I, any vestiges of the dual school systems that may have existed in the SSDs had been eliminated.

The Jenkins class further argues that Swann raises a presumption against schools that are disproportionate in their racial composition. The district court did not err in rejecting the Swann presumption. Milliken was careful to point out that disparity in the racial composition of pupils within a single district merely signals an inquiry into the causes for pronounced racial identifiability of schools within one school system. The Milliken limitation of this presumption is the subject of comment by the Fifth Circuit in Lee v. Lee County Board of Education, where the court stated:

It seems important to note also that Milliken, unlike Swann and Keyes v. School Dist. No. 1, 413 U.S. 189 [93 S.Ct. 2686, 37 L.Ed.2d 548] (1973), did not sanction the use of any presumptions on the question of the cause of interdistrict segregation. Thus, while Swann, as noted above, permits an inference that the continued existence of one-race schools in a system that formerly practiced de jure segregation is a vestige of such segregation, and Keyes permits one to infer the existence of systemwide de jure segregation from proof that school authorities have pursued an intentional policy of segregation in a substantial portion of a school district, Milliken refused to sanction a presumption that significant disparities in the racial composition of autonomous school districts resulted from impermissible action by those districts and thus justified imposing upon them the burden of remedying conditions of segregation existing in other districts. The Milliken Court noted that both Keyes and Swann merely involved “the use of a significant racial imbalance in schools within an autonomous school district as a signal which operates to shift the burden of proof [which] is a very different matter from equating racial imbalance with a constitutional violation calling for a remedy.” 418 U.S. at 741 n. 19 [94 S.Ct. at 3125 n. 19] * * *.

639 F.2d at 1254.

Contrary to the argument of the Jenkins class, cases of this court do not adopt the Swann presumption in interdistrict cases. See Morrilton School District No. 32 v. United States, 606 F.2d at 230; see also United States v. Missouri, 515 F.2d 1365 (8th Cir.), cert. denied, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975); Haney v. County Board of Education, 410 F.2d 920 (8th Cir.1969). They simply recognize that racial gerrymandering, which the district court specifically found is absent here, will make school authorities responsible for the foreseeable effects. So also, the argument concerning the presumption runs directly contrary to the teachings of Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976), that there must be a showing in a school desegregation case of “a current condition of segregation” resulting from intentional state action. The district court’s finding that the SSDs were autonomous prevents a conclusion that there is a single system to which such a presumption applies.

The arguments of the Jenkins class run contrary to the facts found by the district court.¹⁷ In essence, in the detailed recitation of evidence, it seeks to have this court substitute its judgment for that of the district court. This is contrary to the general rule of Anderson v. City of Bessemer City, supra, and to the specific dictate of this court that we give “undiminished deference to the factual adjudications of federal trial judges in cases such as these, uniquely situated as those judges are to appraise the societal forces at work in the communities where they sit.” Little Rock, 778 F.2d at 410-11.

IV.

We next consider arguments advanced by the Jenkins class that racially discriminatory acts by the State in housing-related areas justified interdistrict relief involving the SSDs. Before considering the district court’s findings on this matter, we must address the class’ argument that the district court misread Milliken in deciding whether the SSDs could be required to participate in an interdistrict remedy. In doing so, we must read all of Milliken and all of the district court’s order. According to the class, the district court read Milliken as holding that each SSD could not be required to participate in an interdistrict remedy absent a finding that that SSD had engaged in racially discriminatory conduct.

The passage from Milliken set forth above in Part I, supra, made plain that, before a federal court may impose an inter-district remedy, “it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district.” 418 U.S. at 744-45, 94 S.Ct. at 3127. Specifically, the court must find that racially discriminatory acts “have been a substantial cause of interdistrict segregation.” Id. at 745, 94 S.Ct. at 3127. Absent this showing, “there is no constitutional wrong calling for an interdistrict remedy.” Id. On the facts before it, the Court was forced to conclude in Milliken that:

With no showing of significant violation by the 53 outlying school districts and no evidence of any interdistrict violation or effect, the court went beyond the original theory of the case as framed by the pleadings and mandated a metropolitan area remedy. To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court.

Id.

The Court’s decision in Hills v. Gau-treaux, 425 U.S. 284, 96 S.Ct. 1538, two years later, forcefully emphasized this central holding of Milliken. Justice Stewart wrote for the Court:

Once a constitutional violation is found, a federal court is required to tailor “the scope of the remedy” to fit “the nature and extent of the constitutional violation.” * * * In Milliken, there was no finding of unconstitutional action on the part of the suburban school officials and no demonstration that the violations committed in the operation of the Detroit school system had had any significant segregative effects in the suburbs. * * * The desegregation order in Milliken requiring the consolidation of local school districts in the Detroit metropolitan area thus constituted direct federal judicial interference with local governmental entities without the necessary predicate of a constitutional violation by those entities or of the identification within them of any significant segregative effects resulting from the Detroit school officials’ unconstitutional conduct. Under these circumstances, the Court held that the interdistrict decree was impermissible because it was not commensurate with the constitutional violation to be repaired.

Id. at 293-94, 96 S.Ct. at 1544-45 (emphasis added) (citations omitted); see also Golds-boro City Board of Education v. Wayne County Board of Education, 745 F.2d at 328 (“An independent school district which has not caused segregation in a neighboring independent district has no duty to rectify a racial imbalance in the other districts.”).

Milliken and Hills make clear that we may grant interdistrict relief only to remedy a constitutional violation committed by the SSD, or to remedy an inter-district effect in the SSD caused by a constitutional violation in KCMSD. The district court first carefully considered whether the SSDs had violated the Constitution. It found they had not. Indeed, the district court concluded that to award relief in this case would, as the Court concluded in Mil-liken, “impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy.” 418 U.S. at 745, 94 S.Ct. at 3127. Order of June 5, 1984 at 96. It further found that the Jenkins class had not established any acts or omissions by the SSDs “which have had a substantial segregative impact in any other district.”¹⁸ The district court was compelled to make this inquiry by Milliken and Hills, stressing as they do the significance of the commission of a constitutional violation. The court’s consideration of the appropriateness of interdistrict relief would have been incomplete without this inquiry. Milliken makes plain that the issue of whether the parties are constitutional violators must be considered as well as the issue of whether there is a constitutional violation in one district causing a significant segregative effect in a neighboring district.

Moreover, contrary to the argument of the class that the court looked only to the culpability of the SSDs, the scope of the order is far broader. The court’s order admittedly emphasizes the absence of culpability of the suburban districts. However, the court explicitly recognized that under Milliken “there must be evidence of a constitutional violation in one district that produces a significant segregative effect in another district.” Order of June 5,1984 at 14, 95. The district court compared the theories before it with those in Milliken. It noted that only the schools in one district were affected and that the remedy must be limited to that system. In examining the cause and effect issue, the court noted that “not only is plaintiff’s evidence here blurred as to cause and effect, there is no ‘careful delineation of the extent of the effect.’ ” Id. at 96 (quoting Lee, 639 F.2d at 1256). The district court thus dealt not only with the issue of whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effects. See V, infra. When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met.

In Bell v. Board of Education, 683 F.2d 963 (6th Cir.1982), the Sixth Circuit suggested a number of practical problems in attempting to order school districts to remedy housing violations:

We do not find any case addressing the argument that a school board otherwise innocent of segregative intent is liable for the discriminatory housing practices of other governmental agencies. We decline to accept this argument. Under this argument the discriminatory conduct of the FHA in making housing loans and local housing authorities in the construction and rental of public housing is attributable to school boards. Such a proposal places too heavy a burden on the schools to remedy wrongs for which they are no more or less responsible than the plaintiffs, the courts, the churches, the Congress or other institutions. Plaintiffs do not suggest how the schools, after a finding of liability, would go about remedying this problem or what kind of order a federal court could enter that might as a practical matter have a chance of changing the fact that black and white families live in separate neighborhoods in most towns and cities.

Id. at 968 (footnote omitted).

The Supreme Court has given consistent admonition in Hills and Milliken that federal courts may not “restructur[e] the operation of local governmental entities that were not implicated in any constitutional violation.” 425 U.S. at 296, 96 S.Ct. at 1546. The district court’s findings amply establish that the SSDs were not “implicated” in the State’s housing violations. See Part V.

We have considered that culpability is an important factor in interdistrict analysis. In Little Rock, 778 F.2d 404, we ordered that the boundaries of the North Little Rock School District remain intact “in partial recognition of the fact that the nature and extent of its interdistrict violations are less severe than those of the other defendants.” Id. at 435. Judge Arnold’s separate concurring and dissenting opinion recognizes that the remedy to be imposed against the SSDs must be “limited by the fact that the SSD is not itself a constitutional violator.” Post at 694.

We recognize that Morrilton School District No. 32 v. United States, 606 F.2d 222, states that school districts may be required to participate in a remedy when “there was no evidence implicating them in a direct way with the establishment” of the segregated district. Id. at 228. Morrilton is a gerrymandering case. Its broad language must be limited to its facts, an interdistrict violation in the consolidation of school districts, with the effects felt in each.¹⁹ An attempt to imbue Morrilton with broader force disregards not only its salient facts, but also the Seventh Circuit precedent it quotes: “If the state has contributed to the separation of the races, it has the obligation to remedy the constitutional violations. That remedy may include school districts which are its instrumentalities and which were the product of the violation.” Morrilton, 606 F.2d at 229 (quoting United States v. Board of School Commissioners, 573 F.2d 400, 410 (7th Cir.), cert. denied sub nom. Bowen v. United States, 439 U.S. 824, 99 S.Ct. 93, 58 L.Ed.2d 116 (1978)). Here the district court clearly found that the SSDs were autonomous, not mere instrumentalities of the State, and their boundaries not the product of any constitutional violation by the State. Despite plaintiffs’ urging, the language of Morrilton is limited to its facts, and does not reach the issues we face today.

y.

The Jenkins class argues that a dual housing violation, fueled by State enforcement of racially restricted covenants and felt in virtually every other housing program in the three-county area touching lending, appraisal, and sales practices, effectively channelled black and white low-income families to separate communities. Such violation and effects, it argues, were interdistrict, and therefore require the in-terdistrict remedy of consolidation. The Jenkins class further argues that as part and parcel of the State’s dual housing market violations, there were constitutional violations by the LCRA and HAKC, which diverted blacks exclusively to the black areas within the KCMSD.

The district court made a general finding that not only is the evidence “blurred as to the cause and effect, there was no ‘careful delineation of the extent of the effect.’ ” Order of June 5, 1984 at 96. It made specific findings that negate the existence of significant interdistrict current effects in the SSDs.²⁰ As Milliken requires an interdistrict violation causing a significant segregative effect in another district, these findings pose an insuperable barrier to granting interdistrict relief.

The district court found that school district boundaries had not constrained black movement in any way, id. at 39, and no acts of the SSDs contained blacks in KCMSD or kept them out of the SSDs. Id. at 3. The absence of black schools in the defendant districts before Brown did not discourage black families from outside or within Missouri from moving to and living in those districts. Id. at 18. The district court found that there was steady increase in black enrollments in the SSDs since 1968, and in 1980, 23,434 blacks resided outside the principal contiguous area. Id. at 36-37. We have observed the increase in black enrollment in Hickman Mills, Center, Grandview, and Raytown. See note 9, supra.

The court found that the substantial increases in the KCMSD black population were in large part due to the unusual economic and employment ramifications of the World Wars and intervening Depression. Id. at 17. None of the SSDs were shown by the expert Dr. Tobin to have played any significant role in housing matters or to have exerted any control whatsoever over the private decisions people made about where to live. Id. at 37-38. The district court made numerous findings concerning housing choices, economics, and job opportunities. Jenkins v. Missouri, 593 F.Supp. at 1490. In rejecting the expert testimony of Dr. Kane, the court pointed to the importance of job location, ethnic clustering, and personal preference. Id. at 1491. These findings demonstrate the importance of personal choice,²¹ referred to by at least two courts as “voting with feet.” See Riddick, 784 F.2d at 537; Davis v. East Baton Rouge Parish School Board, 721 F.2d 1425, 1435 (5th Cir.1983).

Regarding the existence of racially restrictive covenants, stressed by the Jenkins class and by Judge Arnold in his concurring and dissenting opinion, the district court made it plain that the restrictive covenants have no current effect in the SSDs. The district court found no evidence that the covenants were enforced by state courts following Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). It recognized the tremendous housing growth in many suburban areas after 1948, when the covenants were a nullity. That blacks presently live in locations previously covered by restrictive covenants further undermines their significance. Order of June 5, 1984 at 39.²²

These findings of the district court that we have outlined above deal with conditions or effects that would have been expected had there been an interdistrict effect in the SSDs flowing from housing violations committed by the State or other actors in KCMSD.

Judge Arnold’s concurring and dissenting opinion argues, as does the Jenkins class, that Evans v. Buchanan, 393 F.Supp. 428 (D.GDel.), aff'd 423 U.S. 963, 96 S.Ct. 381, 46 L.Ed.2d 293 (1975), and United States v. Board of School Commissioners, 637 F.2d 1101 (7th Cir.), cert. denied, 449 U.S. 838, 101 S.Ct. 114, 66 L.Ed.2d 45 (1980), both approved interdis-trict remedies based in part upon housing discrimination practiced by state actors. Post at 689.²³ In Evans, the district court found that governmental authorities had provided public housing almost exclusively within the confines of Wilmington and restricted the availability of private and public housing to blacks in suburban New Castle County. 393 F.Supp. at 435. In Board of School Commissioners, the Seventh Circuit affirmed a finding that all public housing in the county had been located within the boundaries of the Indianapolis public school district and this was the segregative intent of state agencies.²⁴ 637 F.2d at 1110-11.

In this case the district court findings are far different. There was no lack of balance between federally assisted housing within the KCMSD and the suburban areas, as demonstrated by the 6,832 HUD-insured or subsidized multi-family units within KCMSD and 9,872 such units in the eleven SSDs. Jenkins v. Missouri, 593 F.Supp. at 1499. HUD efforts were designed to insure that participating section 8 certificate-holders were aware that affordable housing was available throughout the entire community and that they were informed of their rights under the fair housing laws. Id. at 1500. The court pointed to the affirmative marketing efforts in the Parvin Estates area, located in predominantly white North Kansas City, which were never able to attract more than 12% minority residents. Id. The district court further found no evidence that the practices of HUD in site selection and approval for federally subsidized multi-family housing had a substantial effect upon the racial make-up of schools in KCMSD. Id. at 1499. The findings contained in the analysis of HUD’s liability also relate to LCRA and HAKC.

The facts relied on to support the housing violations in Evans and Board of School Commissioners are directly contrary to those found in this case. These cases simply give no assistance to the argument that there have been constitutional violations by housing actors having a significant segregative effect in the SSDs.

Other findings on housing practices are significant. The district court specifically found that FHA appraisal practices before 1950 had at most a de minimis effect on present racial housing patterns. It examined LCRA practices and its role in administering urban renewal programs under the Housing Act of 1949. It found that HUD had investigated LCRA and issued a report in April 1972 finding discrimination in LCRA’s referral practices and in requiring that such practices be ceased and reports filed. Failure to correct this led in June 1973 to refusal to fund the program and a cooperative agreement between HUD, LCRA, and the City of Kansas City by which the city assumed responsibility for relocation under the Act. The relocation report showed that during the period from 1971 to 1976, only 174 black families were relocated. Jenkins v. Missouri, 593 F.Supp. at 1497-98. Again, the finding of the district court concerns and is limited to intradistrict claims. This finding is not sufficient to justify remand to the district court for consideration, as Judge Arnold suggests, of what interdistrict effect may have resulted from such actions.

The district court found that while the HAKC constructed seven family projects between 1952 and 1963 within the model cities or urban renewal areas, the location was in accordance with congressional acts and the assignment practices were approved by HUD. Id. at 1498-99. The court reviewed HUD policies and found expenditures to be balanced between KCMSD and the suburban areas. Id. at 1499. It further found no evidence that the practices of HUD in site selection and approval for federally subsidized multifamily housing substantially affected the racial make-up of schools within the KCMSD. Id.

These findings clearly were made with reference to the claims against HUD. They do not apply to the housing practices in KCMSD. They belie the possibility of interdistrict effect occurring in the SSDs.

Another weakness immediately is apparent in analyzing the Jenkins class’ arguments in the context of the district court’s findings. The activities of LCRA and HAKC to which attention is primarily pointed, the investigation and the change in practices, both occurred in the 1970’s after KCMSD had experienced the substantial increase in black school population. The exhibit relied upon by the district court in its findings demonstrates that the KCMSD black population was 18.9% in 1955-56, that it had grown to 30.7% in 1961-62, and had reached 50.2% in the 1970-71 school year. The substantial increase which resulted in the district becoming majority black thus had .occurred before the particular events to which the Jenkins class points. To argue that alleged LCRA and HAKC violations created these interdistrict effects simply ignores logic.

The court specifically found that KCMSD assignments of children to particular schools had an intradistrict effect and were not influenced by any SSD. Further, these actions did not have a significant effect on the enrollment in any SSD. Order of June 5, 1984 at 38.²⁵

The court considered many non-governmental housing factors and rejected the theory that liability may be imposed upon the SSDs for being the recipients of people moving for whatever reason. The court found that red-lining, steering, and blockbusting practices by private real estate agents, which may have affected the racial composition of KCMSD, were not the actions of KCMSD or of any SSD and are beyond the control of any school district. The transition of neighborhoods from white to black and accompanying white flight existed in Kansas City since the 1940’s, but no testimony linked the SSDs to the process. Id. at 41. Absent a nexus between the conduct of the SSDs and the policies or practices of independent housing actors, the court would not hold the SSDs liable for racial imbalance. Id. at 42.

Judge Arnold stresses the district court’s findings that there is a dual housing market impacting blacks in the KCMSD and causing the public schools to swell in black enrollment, 593 F.Supp. at 1491, and that the State had encouraged racial discrimination by private individuals. Id. at 1503. The court went no further but commented that the question of State liability would be close if it hinged solely on this encouragement of private discrimination. It then proceeded to base its finding against the State on the intentional creation of the dual school system in KCMSD and the failure to eradicate its vestiges. The Jenkins class makes much of these statements by the district court. Nevertheless, they fall short of making a specific finding of a constitutional violation, and certainly make no finding of any interdistrict effect. That the findings are in the district court’s separate opinion concerning intradistrict liability prevents extension of such findings to arguments regarding interdistrict effect in the SSDs.

Thus, even accepting the Jenkins class’ arguments that the district court misread Milliken by improperly limiting its inquiry solely to whether the SSDs were guilty of committing constitutional violations, we conclude that the factual findings of the district court effectively foreclose findings of interdistrict effect in the SSDs flowing from constitutional violations with respect to housing that may have occurred in KCMSD.²⁶ It is, of course, evident from the findings that there were no constitutional violations in the SSDs. Under Mil-liken this answers the arguments made by the Jenkins class, as well as the further articulation in the arguments of KCMSD, and forecloses efforts to require the SSDs to be subject to the claim for interdistrict relief, be it consolidation or some step less drastic.

To consider isolated bits of evidence, de minimis in nature, and to mix this with speculation is insufficient to support the conclusion that there are additional factual issues not passed upon by the district court. The findings made were adequate to dispel the conclusion required by Milliken that there be significant segregative effects in the SSDs caused by actions of a constitutional violator in KCMSD.

The housing discussion is not complete without another word of caution. Plaintiffs expert, Dr. Gary Orfield, testified that the Kansas City metropolitan area, located in both Missouri and Kansas, comprised a single housing market. Dr. Kane testified that 7,239 black students now in Missouri schools would be in Kansas schools had there not been housing discrimination. Record at 7669-70, Pi’s Exhibit 1265-R. A number of witnesses called by plaintiff testified their children were moved from the KCMSD to Johnson County, Kansas. Record at 6722-23, 6809, 6863-64, 6953. The district court dismissed the Kansas districts from this action in its order of October 6, 1978. School District of Kansas City v. Missouri, 460 F.Supp. at 431. Accordingly, it made no findings on these issues. This evidence, however, points to the serious complications present in a claim based on housing violations where the housing market extends into another state and there is movement from an impacted district into the other state.

VI.

The Jenkins class relies particularly on decisions from Wilmington, Louisville, Indianapolis, and Allegheny County, in which interdistrict remedies had been ordered. These cases involved gerrymandering; the present case does not. The district court specifically found that the establishment and maintenance of school district boundaries was a local matter in Missouri, determined through local initiative, and uninfluenced by racial animus. The district court thus held the gerrymandering cases inappo-site. We agree.

Evans v. Buchanan, 393 F.Supp. 428, considered the effect of Delaware legislation explicitly prohibiting the state board from altering the boundaries of the Wilmington school district, fixed as coterminous with the Wilmington city limits. The district court found no racially discriminatory purpose in the Act’s freezing of the Wilmington district’s boundaries. Id. at 439. It held, however, that the Act helped to maintain the racial identifiability of the Wilmington and the suburban New Castle County school districts and thus contributed to the segregation of the races. Id. at 445-46. The district court also found that the Wilmington district and the suburban districts were not meaningfully separate and autonomous. Id. at 428.

Similarly, in Newburg Area Council, Inc. v. Board of Education, 510 F.2d 1358 (6th Cir.1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1658, 44 L.Ed.2d 88 (1975), the court observed that while the county was established by statute as the basic educational unit, “school district lines in Kentucky ha[d] been ignored in the past for the purpose of aiding and implementing continued segregation,” and that “[s]uch disregard continue[d] to have an effect on the racial imbalance in the county’s schools * * Id. at 1360. In addition, the court specifically recognized that both the Louisville and Jefferson County school districts had failed to eliminate all vestiges of state-imposed segregation. Id. at 1359. Accordingly, it is clear that unlike the present case, the Louisville boundary lines were purposefully manipulated to maintain segregated school districts.

United States v. Board of School Commissioners, 637 F.2d 1101, involved the exclusion of certain school districts from the Uni-Gov legislation which perpetuated the segregated white schools in suburban Marion County. Id. at 1105. The issue involved was whether the school boundaries should coincide with the expansion of the boundaries of the City of Indianapolis. The Fourth Circuit affirmed the findings that the decisions were made with discriminatory purpose. Id. at 1108.

In Hoots v. Pennsylvania, 672 F.2d 1107 (3d Cir.), cert. denied, 459 U.S. 824, 103 S.Ct. 55, 74 L.Ed.2d 60 (1982), the court pointed to findings that in 1971 the state and county boards inténtionally created a district which was 63% black, and four nearby districts that were from 87% to over 99% white. Id. at 1111. This process involved the redrawing of school boundaries, and as such was a constitutional violation. Id. at 1120. The violation was interdistrict in nature and required interdistrict relief.

These cases all involve governmental action fixing or ignoring boundaries with discriminatory intent. The findings in the case before us are to the contrary. These cases are therefore distinguishable as are the boundary cases such as Morrilton, considered by this court. See Part IV, supra. These decisions upon which the Jenkins class so heavily relies, when viewed in light of the findings made by the district court, plainly have no applicability to the present case. The district court therefore correctly rejected arguments based upon them.

VII.

To the contrary, other decisions relied upon by the district court carry great force. Lee v. Lee County Board of Education, 639 F.2d 1243, distinguishing New-burg and Evans, refused to impose an in-terdistrict remedy on truly autonomous local school districts. Taylor v. Ouachita Parish School Board, 648 F.2d 959, 966 (5th Cir. 1981), also found autonomous school districts and an intradistrict violation as opposed to interdistrict violations. A showing of segregative effect alone was considered to be insufficient under Milliken without demonstration of interdistrict violation and interdistriet effect.

Goldsboro City Board of Education v. Wayne County Board of Education, 745 F.2d 324, presents many similarities to the case before us. The argument was made, similar to that advanced by the Jenkins class, that the district court erred in its legal ruling that the county board owed no duty to the city board to decrease the proportion of blacks in the city schools. Both the city and county school districts were unitary. The court in Goldsboro stated:

An independent school district which has. not caused segregation in a neighboring independent district has no duty to rectify a racial imbalance in the other district. * * * Both the City and County were found to have unitary school systems. * * * Swann implies that once a school system is unitary it has no duty to go to extraordinary measures to compensate for demographic changes it did not cause or encourage.

Id. at 328-29 (citations omitted) (footnote omitted). Goldsboro rejected the argument that it violated the Constitution by maintaining separate county and city school districts which, while racially neutral when created, had in the face of demographic changes made the population of the city schools more black.²⁷

The Atlanta case also involves facts similar to those before us. The decision of a three-judge court in Armour v. Nix, 16-708 (N.D.Ga.1979), aff'd, 446 U.S. 930,100 S.Ct. 2146, 64 L.Ed.2d 784 (1980), denied an interdistrict remedy. Armour discussed particularly past conditions and practices and stressed the need for a current interdistrict effect. The holding in Armour was best summarized in Lee v. Lee County Board of Education, 639 F.2d 1243, as follows:

Armour involved the City of Atlanta school district and a number of suburban county districts in the metropolitan Atlanta area. The demographic pattern was a familiar one. The City of Atlanta, and its school system, has become smaller and predominantly black, as the surrounding suburban communities have expanded rapidly and become predominantly white. Given these residential patterns, no intradistrict desegregation plan promised any degree of meaningful racial integration of the public schools within the city district. In Armour, the court concluded that interdistrict relief would, nevertheless, be inappropriate because the current pattern of pervasive residential segregation, which the court found to be the proximate cause of the racial disparities in the population of the various districts, was not the direct result of any official action on the part of the school authorities or any other governmental agent.

Id. at 1259 (footnote omitted).

It is interesting to observe that the central thrust of the jurisdictional statement filed with the Supreme Court by appellant in Armour is based on acts of state actors causing housing segregation in the greater Atlanta area, which, it was argued should require an interdistrict remedy. The Supreme Court’s summary affirmance of Armour, therefore, provides precedential guidance for us. Tully v. Griffin, 429 U.S. 68, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976); Hicks v. Miranda, 422 U.S. 332, 343-45, 95 S.Ct. 2281, 2289-90, 45 L.Ed.2d 223 (1975).

VIII.

Yet another reason gives strong support to the district court’s denial of interdistrict relief. The district court, as we have observed on several occasions, made strong findings that the SSDs had become unitary and had eliminated all vestiges of the dual school system at least by the early 1960’s.²⁸ This makes appropriate, as the district court correctly recognized, the Court’s discussion in Swann v. Charlotte-Mecklen-burg Board of Education, 402 U.S. 1, 91 S.Ct. 1267:

At some point, these school authorities and others like them should have achieved full compliance with this Court’s decision in Brown I. The sys-terns would then be “unitary” in the sense required by our decisions in Green [v. County School Bd., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968)] and Alexander [v. Holmes County Bd. of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed .2d 19 (1969)].

It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

Id. at 31-32, 91 S.Ct. at 1283-84.

The district court found that in the 1954-55 school year 18.9% of KCMSD’s students were black and that the district was majority white in enrollment until 1970. Jenkins v. Missouri, 593 F.Supp. at 1492. The exhibit upon which these findings were based further demonstrates that the district became 30% black in the 1961-62 school year, 40% black in the 1965-66 school year, and 60% black in the 1975-76 school year. The significance of these findings is that the increase in black population in KCMSD accelerated after the SSDs eliminated the vestiges of the dual system and began operating unitary school systems. The situation is similar to that in Goldsboro, 745 F.2d at 328-29.

In Riddick, 784 F.2d 521, the court stated:

But once the goal of a unitary school system is achieved, the district court’s role ends.

******

We have only recently examined both Pasadena [City Bd. of Ed. v. Spangler, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976)] and Swann and concluded that a district court’s power to effect additional remedial orders is limited. “Once a school system has achieved unitary status, a court may not order further relief to counter-act resegregation that does not result from the school system’s intentionally discriminatory acts.” Vaughns, [v. Bd. of Ed. of Prince George’s Cty., 758 F.2d 983 (4th Cir. 1985) ], supra, at 988. Other courts have reached the same conclusion. Davis, supra, 721 F.2d at 1435 (“Changes in neighborhood ethnicity taking place after school officials have transformed their system into a unitary one need not be remedied, of course, for school officials are under no duty to adjust for the purely private acts of those who chose to vote with their feet.”); Ross v. Houston Independent School Dist., 699 F.2d 218, 225 (5th Cir.1983).

Id. at 535-37.

Thus, the findings of the district court that the SSDs had become unitary, and that only later did the KCMSD’s black population grow, together with the explanation in Swann, compel the conclusion that there be no further intervention by federal courts with the SSDs.²⁹

IX.

The district court dismissed the claims that HUD, in administering housing policies and programs, had violated the Fifth Amendment of the United States Constitution, Title VI of the Civil Rights Act of 1964, 41 U.S.C. § 2000d, et seq., Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601, et seq., and various housing laws and regulations.

We have discussed briefly, in the housing context, the Jenkins class’ claims against HUD. It claims that HUD violated its Title VI and Title VIII obligation by continuing to fund LCRA and HAKC after it knew that that agencies employed racially discriminatory housing practices, and by continuing to administer its section 8 housing program in a manner which is segregative in fact. Section 8 is a housing assistance payment program in which HUD issues certificates to low income renters who then present these certificates to landlords for rental payments. The Jenkins class maintains that HUD failed to direct the certificate recipients to integrative locations and, as a result, three-fourths of certificate holders rent in predominantly black housing units within the KCMSD. It further contends that HUD administered its section 235 single-family mortgage assistance program in a manner which funneled blacks into transitional areas of KCMSD and whites into the SSDs. Ultimately, the Jenkins class asserts, HUD allowed foreclosed section 235 housing in these transitional areas to deteriorate, thus contributing to white flight into the suburbs. They finally charge that although HUD abandoned its 1960s “social homogeneity” policy, it took no steps to encourage families benefiting from its housing programs to make integrative choices.

The district court addressed these contentions in denying the claims against HUD. The Jenkins class simply reasserts these claims on appeal. They do not assert that the district court’s underlying factual findings are clearly erroneous. With respect to HUD’s relationship with HAKC and LCRA, the court found, as we discussed above, that HUD investigated the violations and entered a cooperative agreement with those agencies and the City of Kansas City to correct the violations. The court found that HUD acted in a reasonable and responsive manner, that its conduct was not arbitrary and capricious, and concluded that there was no violation of plaintiffs’ fifth amendment rights. Jenkins v. Missouri, 593 F.Supp. at 1498-99. Regarding section 8 certificate-holders, the court found no evidence that HUD attempted to direct these individuals into particular housing areas. With respect to the other siting issues, the district court found that HUD followed a balanced housing policy and, by assisting housing projects in the suburban area, attempted to ensure that housing located in inner-city areas was balanced. Id. at 1499. Further, it is again relevant that the section 235 program, authorized by the National Housing Act in 1968, began essentially after the massive shift in the racial population of southeast Kansas City had occurred. Record at 12048-49. Most of these schools had by then become predominantly black. The rapid racial turnover was attributed by plaintiffs’ witnesses to a variety of non-HUD related factors and was considered by one of plaintiffs’ expert witnesses to be inevitable. Record at 12034, 12061. Plaintiffs’ expert, Dr. Gary Orfield, testified that by 1954 the KCMSD schools, like those of most central cities in the country, were on course to become predominantly black, regardless of the desegregation actions taken at that point. Record at 14891-93.

We conclude that plaintiffs’ arguments do not show that the district court erred as a matter of law in its judgment for HUD. We affirm the district court’s dismissal of the claims against HUD.

X.

Finally, the KCMSD challenges the district court’s ruling that for lack of standing KCMSD must be dismissed as a party plaintiff and realigned as a defendant. KCMSD argued that it sustained economic injury through the action of the other defendants and therefore had standing to seek recovery against them. The district court carefully considered this and other arguments urged by KCMSD to proceed as a party plaintiff. The court recognized a potential conflict between the interests of students seeking to demonstrate the existence of segregative conditions in the area, and those of the KCMSD, which would resist the introduction of incriminating evidence concerning its own past or present actions. School District of Kansas City, Mo. v. Missouri, 460 F.Supp. at 441. The findings of KCMSD liability in the Order of September 17, 1984, Jenkins v. Missouri, 593 F.Supp. at 1492-95, 1504, 1506, and the Order of June 14, 1985, confirm the concerns of the district comí; in October 1978 that a conflict of interest existed. The district court therefore did not err in dismissing KCMSD as a party plaintiff and realigning it as a defendant.

XI.

We now consider the intradistrict remedy ordered by the district court. No one challenges the substantial portion in which the costs are divided evenly between the State and the KCMSD. These include a program to achieve the AAA rating which would include library improvement and teaching load and curriculum improvements and addition of counselors. The implementation of a summer school program and full-day kindergarten, before- and after-school tutoring, and an early childhood development program are the other remedial steps ordered by the district court. These programs impose a cost over a three-year period on both the State and KCMSD of $10,-140,472 each.

The State, however, challenges an improved student achievement program which essentially involves grants to each of the schools in KCMSD for a three-year period, the voluntary interdistrict transfer plan, and the reduction of class size proposal, all of which involve costs to be imposed upon the State alone. We will consider each of these items in turn, as well as the capital improvements program which imposed a cost on the school district of $10,-000,000 over a three-year period, and $27,-000,000 on the State over the same period.

We have approved remedial and compensatory programs in school desegregation cases. See Liddell v. Missouri, 731 F.2d 1294. There we stated, in a portion of the opinion joined by eight judges of this court:

[T]o remedy the effects of a dual system which operated for decades with the sanction of law, remedial efforts must also concentrate on systemic educational improvements.

A secondary remedial objective of the quality education improvements is to enhance the appeal of the city school system, thereby promoting the chances of a stable and successful voluntary desegregation plan. The exodus of white parents and students out of fear of integration, or “white flight,” is no excuse for school officials to avoid desegregating.

Id. at 1313 (emphasis in original) (citations omitted).

The district court properly recognized this principle when it stated in its Memorandum Opinion of June 14, 1985:

Measures requiring educational improvements have been incorporated into many desegregation remedies. * * * The use of ancillary programs to improve the educational quality of a school district in a desegregation remedy is based upon the federal district’s “duty to render a decree which will so far as possible eliminate the discriminatory effects of the past____” * * * No party to this case has suggested that this plan should not contain components designed to improve educational achievement. In fact, it is “appropriate to include a number of properly targeted educational programs in a desegregation plañ” (State Plan at 5). This is true because “individuals in our society who do not possess the levels of skill, literacy, and training essential to this new era will be effectively disenfranchised, not simply from the material rewards that accompany competent performance, but also from the chance to participate fully in our national life.” A Nation at Risk at p. 7.

Memorandum Opinion of June 14, 1985 at 3-4 (citations omitted).

Recognizing these principles, a number of the programs designed to improve student achievement are not the subject of attack in this appeal before us.

A.

The State argues that the voluntary interdistrict transfer plan imposes an interdistrict remedy for an intradistrict violation. The State concedes that this argument was rejected in Liddell, 731 F.2d 1294. This court there held, relying on its earlier decisions in the Liddell litigation, that a voluntary interdistrict program was a “valid part of the attempt to fashion a workable remedy within the city” and would be entirely enforceable against the State. Id. at 1303.³⁰

Our holding in Liddell was the basis for the following findings of the district court:

To accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task. As this Court stated in its January 25, 1985 order, “because of restrictions on this Court’s remedial powers in restructuring the operations of local and state government entities,” any mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond the nature and extent of the constitutional violation this Court found existed. * * * In addition, voluntary inter-district transfers may serve to provide additional opportunities for desegregated schools as well as desegregative educational experiences for KCMSD students.

Order of June 14, 1985 at 31 (citations omitted).

The district court specifically found that the State had created the dual school system in Kansas City, that vestiges still lingered, and the obligations of KCMSD and the State to eliminate them have not been met. Jenkins v. Missouri, 593 F.Supp. at 1503-04. This finding of a constitutional violation, even though intradistrict in nature, is sufficient under the principles of Liddell to place upon the State the obligation to fund the voluntary interdistrict transfer program, under procedures enunciated in Liddell.

We believe, however, that the State properly raises a valid concern with respect to the requirement that the State pay KCMSD the full student foundation allotment for each student who transfers from KCMSD to a SSD. KCMSD, after all, has also been found to have violated the Constitution. We believe that the situation is not unlike that in St. Louis where both the State and the school district were constitutional violators in an intradistrict violation. There we approved payment by the State on one of two formulas, either one-half of the State aid the district would have received had the student not transferred, or, if a district sends more students than it receives, State aid based on the district’s enrollment for the second prior year. Lid-dell, 731 F.2d at 1302. We also have concern that the court has given to the State alone full authority to monitor the voluntary interdistrict program. We believe that the use of a citizens committee in the St. Louis area with authority to monitor the program and assist in recruitment has been most effective. We direct that the district court modify its order on the voluntary interdistrict program so that it is consistent with that approved in Liddell.

B.

The State argues that the district court improperly ordered it to fund an increase in the number of teachers above and beyond that necessary to meet AAA standards.³¹ The district court found that “achieving reduced class size is an essential part of any plan to remedy the vestiges of segregation in the KCMSD.” Memorandum Opinion of June 14, 1985 at 13.³² The district court analyzed the school system in detail ordering an increased number of teachers so as to reach the achieved class size goals. It placed the entire burden of this cost on the State and required that any responsibility beyond the minimal goals would be borne by KCMSD. The order contains no findings specifically directed to the issue of the liability of the State for this cost as opposed to that of KCMSD. We believe this portion of the order is infirm in two respects. First, it goes beyond the scope of our order in Liddell, which approved the requirements that would bring the schools within the AAA standing, but only as applied to the non-integrated schools. It also runs counter to the Liddell provision for funding equally divided between the State and the school district. 731 F.2d at 1318. As we have observed, both KCMSD and the State are constitutional violators. We see no reason for this cost being placed solely on the State. We direct the district court to modify that portion of its order dealing with reducing elementary and secondary school class size so as to divide the cost equally between the KCMSD and the State.

C.

The State also objects to that part of the court’s order providing for an effective school program, with the goal of improving student achievement, to be funded entirely by the State. This program provides specific grants for each school, in an amount higher for those with 90% or more black enrollment. Over three years, it totals $17,000,000.

The district court made detailed findings with respect to the first year’s expenditures and the components to be considered that year, and ruled that later years would be determined by a school advisory committee at each school making recommendations to the School Board. Memorandum Opinion of June 14, 1985 at 22. The goals of the program were to be directed toward improvement of elementary reading and improving the pass rate on the BEST on the secondary level. We have no difficulty concluding that the findings of the district court support the creation of this fund as its purpose is to provide programs that would enhance education. Nevertheless, we see no findings in the district court order that in any way substantiates placing the entire burden of this program on the State. We believe that the cost should be shared equally between the State and KCMSD and direct that the district court modify its order in this respect.

D.

The State argues that it should not be required to furnish $27,000,000 toward a $37,000,000 capital improvement program.

The district court found that the average age of the sixty-eight school buildings utilized by KCMSD is fifty-eight years and that improvement of school facilities is an important factor in the overall success of the desegregation plan. The district court said:

Specifically, a school' facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan.

Memorandum Opinion of June 14, 1985 at 34.

These findings of the district court are sufficient to support its conclusion that capital improvements are necessary for successful desegregation. The State raises a troublesome' argument based upon the finding of the district court that the buildings in the school district were in need of repair because of deferred maintenance and the failure to maintain the buildings. It argues that this was not the result of an unlawful action by the State. Nevertheless, we believe that the district court findings establish the propriety of this portion of the remedy and because the State is a constitutional violator, it has the obligation to support its proportionate share of this aspect of the remedy. Once again, however, we believe that the equal division between the State and KCMSD, both constitutional violators, is more equitable, and is consistent with our earlier opinion. See Liddell 731 F.2d at 1318-19.

Further findings support our view. The district court found that the deferred maintenance was a result of KCMSD’s lack of financial resources as evidenced by its inability to pass a capital improvements bond issue, although several attempts had been made since 1965. Memorandum Opinion of June 14, 1985 at 33. This is not unlike the situation in St. Louis where only one bond issue was passed in the last twenty-four years and thirteen were rejected. We are troubled with the district court’s reasoning in which it takes into consideration the expenditure by KCMSD of $15,000,000 to $18,000,000 for implementation of an earlier desegregation plan for which it was not reimbursed and for its budgeting in the 1986 fiscal year of approximately $17,000,-000 for desegregation programs not covered in the plan. The State argues that to apply such payments to justify additional contribution by the State is similar to the equitable restitution for payments unlawfully withheld in the past, which were condemned as contrary to the Eleventh Amendment by the Supreme Court in Edel-man v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In view of our conclusion that these costs should be shared equally by the State and KCMSD prospectively, we need not give further consideration to this troublesome issue.

E.

The State makes a final argument that the total cost of the funding placed approximately 80% on the State and only 20% on KCMSD. Our discussion of the specific items above and our conclusion that these costs should be shared equally by KCMSD and the State obviate our further consideration of these arguments. We have already pointed to the role of both as constitutional violators and we need not catalog further the acts of the State or of KCMSD that causes liability to be placed upon each entity. Equal division of costs between the local school authorities and the State was approved in Milliken v. Bradley, 433 U.S. 267, 277, 97 S.Ct. 2749, 2755, 53 L.Ed.2d 745 (1977); Penick v. Columbus Board of Education, 519 F.Supp. 925, 942 (S.D. Ohio), aff'd, 663 F.2d 24 (6th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982); and Reed v. Rhodes, 500 F.Supp.. 404, 424-26 (N.D.Ohio 1980), aff'd, 662 F.2d 1219 (6th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1713, 72 L.Ed.2d 135 (1982).

We observe also that the record before the district court demonstrates that KCMSD has a higher property valuation than those in the SSDs³³ and that KCMSD has imposed upon itself a below average rate of tax levy. KCMSD had a levy of $3.43 per $100 while the other districts in the Kansas City metropolitan area had an average levy of $4.28. This real estate tax falls upon a property base, a great portion of which is highly developed commercial real estate, as opposed to single family homes occupied by students in KCMSD.

We are aware of the complexities of the State’s funding of Missouri schools. While the district court made no findings on this subject, a memorandum filed by the State discusses the procedure established in Chapter 163, R.S.Mo, in great detail. The wealth of the school district plays a considerable role in determining the working of the State formula. As the formula deals entirely with distribution of funds, we believe that, should the district court determine it to be desirable, further consideration could be given to the working of this formula, particularly in reference to desegregation plans in the case now before us, and that in St. Louis, which we treated in Liddell, to determine whether there is any discriminatory motive or action in application of the formula and distribution of funds to school districts.

While our decision places greater financial obligation on KCMSD, it is our intention that the remedy ordered by the court be fully funded. We discussed in detail methods available to the district court to achieve this goal in Liddell, 731 F.2d at 1319-23.

CONCLUSION

One further comment is in order. The record demonstrates in a number of areas that insofar as “white flight” may have been a factor in the Kansas City area, it cannot be considered without reference to the schools in the neighboring State of Kansas. This aspect of the case was not developed in detail nor did the court find it necessary to make findings on this issue. Nevertheless, it is a fact that might at some appropriate time in the future need to be given consideration in evaluating the segregation that may exist in the greater Kansas City area. Certainly, it would be appropriate and desirable, although we admit complex, to give careful consideration to inclusion of the Kansas schools in any voluntary interdistrict plan.

We affirm the judgment of the district court in favor of the SSDs and affirm the judgment of the district court and its in-tradistrict remedy imposed upon the State and the KCMSD with the exceptions we have discussed above that equalize the cost between the State and KCMSD.

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

2 . The named student plaintiffs were replaced at various times during the litigation. In February 1985, the court certified the class of present and future KCMSD students.

3 . The named defendants included the State of Missouri, the Missouri State Board of Education and various Missouri officials, the State of Kansas, the Kansas State Board of Education and various Kansas officials, several Kansas school districts in the Kansas City metropolitan area, twelve Missouri school districts in the area, the United States Departments of Transportation (DOT), Health, Education, and Welfare (HEW), and Housing and Urban Development (HUD).

4 . These rulings were certified under 28 U.S.C. § 1292(b) for interlocutory review. 460 F.Supp. at 445. An appeal, taken by the KCMSD and the North Kansas City School District, was denied by this court. KCMSD thereafter filed an appeal under 28 U.S.C. § 1291 which was dismissed. See School District of Kansas City, Missouri v. Missouri, 592 F.2d 493 (8th Cir.1979).

5 . Before trial, the DOT and one of the SSDs, the Raymore-Peculiar School District, were dismissed voluntarily. See Order of June 5, 1984 at 2.

6 . The eleven districts dismissed were the Blue Springs, Center, Fort Osage, Grandview, Hickman Mills, Independence, Lee’s Summit, Liberty, North Kansas City, Park Hill, and Raytown School Districts. HEW subsequently was dismissed for plaintiffs’ failure to prove that the agency acted with racial animus or abused its discretion in the enforcement of Title VI. See Order of July 16, 1984.

7 . The court specifically found that Independence, Lee’s Summit, Liberty, North Kansas City, and Park Hill had earlier, maintained dual school systems, but the other districts had not. Id. at 43-95.

8 . H.B. 171 increased from 500,000 to 700,000 the size of a city that should constitute a single school district. In the 1960 census, the population of Kansas City did not exceed 500,000. The court found that significant annexations in eastern and southern Jackson and Clay Counties occurred after the bill was enacted and that KCMSD had annexed several all-white schools from 1955 to 1973.

9 . In 1982 the Center district had an enrollment of 10.6% black, Grandview 9.8%, Hickman Mills 16.7%, and Raytown 7.6%. Id. at 41-42.

10 . See Note 22, infra.

11 . While the court conceded that the State may have through its actions created an atmosphere in which private white individuals and members of the real estate, banking, and insurance communities could justify bias against blacks, it found no evidence that the State significantly encouraged such practices. 593 F.Supp. at 1501-03. The court also found that freeway placement did not amount to a constitutional violation.

12 . In Little Rock this court rejected the consolidation remedy but ordered adjustment of the boundaries between the districts, a voluntary intradistrict or interdistrict transfer system, the exploration of magnet or special school or programs, and consideration of cooperative programs. 778 F.2d at 435-36. In Liddell we approved a settlement providing for intradistrict relief, a voluntary transfer program between cities and suburban schools and a magnet school program.

13 . Chief Judge Lay’s dissent, in contrasting facts to rhetoric "doth protest too much." W. Shakespeare, Hamlet, Act III, sc. ii, line 242. The language, on its first page particularly, is exaggerated, without support in the record. The "extravagant language” (see Milliken, Stewart, J., concurring, 418 U.S. 753, 94 S.Ct. 3112, requires this rejoinder.

14 . We need point to only a few examples. "The record is replete with evidence of constitutional violations by many of the SSDs and of the effect those violations had on all of the SSDs and on the KCMSD.” Chief Judge Lay’s dissent at 94. In discussing the rejection of the evidence of Dr. James D. Anderson, plaintiffs expert historian which the district court discussed in detail in the June 5, 1985 Order, id. at 15-16, 18, Chief Judge Lay states: "This evidence was highly probative and it was wholly arbitrary for the court to reject it and inject its own inferences. Moreover, I believe it is especially crucial in a case of this nature to give great consideration to the testimony of historial experts where the theory to be proved occurred long ago and few witnesses are alive to testify." Chief Judge Lay’s dissent at 103, n. 17. The increase in black enrollment in the SSDs since Brown “is conclusive evidence that the lack of schools for blacks in the SSDs prior to 1954 was a deterrent to blacks settling there. * * * It is clear that the SSDs as well as the state and KCMSD, have all failed to fulfill their affirmative duty under Brown v. Board of Ed. to eliminate the vestiges of their prior segregative policies and that significant interdistrict effects of these policies are still evident in the Kansas City metropolitan area." Id. at 106. “Here the racial imbalance is clear evidence of continuing segregation following a pre-1954 de jure policy." Id. at 109.

15 . The district court pointed to evidence that the SSDs are governed by local boards elected by the voters, hire the superintendents and teachers, by vote establish their own tax levy, have plenary power to establish school attend-anee zones, and determine whether to provide transportation for their students. Reorganization is a decision to be made by the local school districts, and the state constitution prohibits legislative enactment of special laws to change the boundaries of any school district. The district court further found that there was no discriminatory intent in the establishment or maintenance of the boundary lines between the school districts. Order of June 5, 1984 at 10-11.

16 . The district court in its June 5, 1984 Order made the following findings: The evidence that segregated schools existing before 1954 were the direct and substantial cause of blacks leaving each SSD, and that such had a significant segre-gative effect in the KCMSD "was weak, speculative and in any event de minimis.” See Order of June 5, 1984 at 12. Plaintiffs argument that the state through its agents, the SSDs, maintained a regional black interdistrict school system causing blacks to leave the SSDs and migrate to Kansas City in search of an education is not supported by the law or the evidence. Id. at 15. Assuming the entire population decrease in the three county area was caused by people leaving and going to Kansas City because of the dual school system, it found "the impact of that movement on the KCMSD enumeration insignificant.” Id. at 16. The motivation for blacks leaving the three county area and moving to Kansas City “resulting from segregated schools was de minimis and insignificant” when compared with other primary motivating factors transferring blacks to the KCMSD under the segregated school system "is not a cause of the present racial distribution of the population in the three county area.” Id. at 18. The Jenkins class did not persuade the court "that any vestiges or significant effects of the pre-1954 dual school system remain” in any of the SSDs. Id. at 18. "At most plaintiffs evidence is only de minimis and is therefore legally insufficient to justify the relief sought against the suburban school district defendants.” Id. at 98. The district court summarized:

Another factor negating the importance of plaintiffs’ voluminous pre-1954 evidence is simply its age. Our society is dynamic; myriad factors produce a multitude of simultaneous decisions and consequent effects. If it were a stagnant entity, the pernicious effects of de jure segregation would be obvious. Due to its fluid nature, however, acts now 30 years past have negligible present effects. Such is the fate of the discriminatory practices plaintiffs took months to develop. Too many events have intervened, reshaping earlier actions. Lee v. Lee County, supra, 639 F.2d at 1259.

Id. at 98-99. In concluding, the district court stated "even if the court were to view plaintiffs evidence liberally, which under Rule 41(b), it is not required to do, the violations proved are at most, de minimis and far removed in time." Id. at 105.

Chief Judge Lay's dissent does not establish what the Jenkins class and KCMSD did not argue, that these findings of fact are clearly erroneous.

17 . Chief Judge Lay’s dissent also argues that a recent order of the district court made some nine months after the argument of this case illustrates that the refusal to grant interdistrict relief was clearly erroneous and contradictory to its own findings. We cannot read the general statement in the recent order to have the effect of setting aside carefully detailed findings of facts and conclusions in its 105 page June 5 Order, its 21 page order on intradistrict liability, or its 45 page order on remedy.

18 . See Note 16, supra.

19 . Milliken makes clear that "an interdistrict remedy might be in order * * * where district lines have been deliberately drawn on the basis of race.” 606 F.2d at 228 (quoting Milliken, 418 U.S. at 745, 94 S.Ct. at 3127). Unlike the present case, Morrilton contains findings that clearly fall within the Milliken language. We dealt in Morrilton with the consolidation of school districts in Conway County, Arkansas that created an all-black East Side District and a disproportionately white Morrilton District. The court stated:

The violation here is clearly interdistrict in nature. East Side is almost entirely black and includes territory that would properly have been absorbed by the surrounding districts were it not for racial considerations. The boundaries of the East Side District, and consequently, the boundaries of the other school districts in Conway County, were not neutrally drawn. Thus, the prohibition in other cases * * * is not applicable here. Interdis-trict relief is appropriate and necessary to remedy the constitutional violation.

Id. (citations omitted). The court continued: Here, the nature of the violation was the consolidation of school districts on the basis of race. * * * [T]he effects of that consolidation were manifested primarily in the boundaries and racial composition of the Morrilton, Plumerville and East Side Districts. East Side is almost all black, and Morrilton is disproportionately white.

Id. at 229.

Morrilton holds that the unconstitutional consolidation of school districts so as to create an all-black district leaving others disproportionately white may properly be remedied through interdistrict relief. To argue that Morrilton compels imposition of an interdistrict remedy on the innocent SSDs in this case ignores that it deals with racial gerrymandering.

20 . The court also specifically found the converse. The district court found that no SSD had committed any constitutional violation that had interdistrict segregative effect in the KCMSD or any other district. Order of June 5, 1984 at 18-19, 45, 48, 51, 54, 59, 67, 74, 78, 83, 91, and 95.

21 . The court observed that people move for a variety of reasons, including a desire to be with persons of the same race or religion. It specifically found that many blacks who moved to the suburbs did so to enjoy a middle class environment rather than an integrated environment. Order of June 5, 1984 at 35. A substantial number of black families moved to the SSDs during and after the 1960s, many from inside the KCMSD. Id. at 41-42. There was testimony that crime and city riots were factors in housing choices.

22 . With respect to the various districts, the court found that Fort Osage had had no covenants, Order of June 5, 1984 at 51, that Grand-view, Lee’s Summit, and North Kansas City had very few covenants, id. at 55, 73, and 83, and that Independence and Liberty also had few such covenants. Id. at 66, 77. The district court found that the restrictive covenants had no effect in Blue Springs, id. at 44-45, and Park Hill, id. at 90. There was no evidence that covenants prevented blacks from moving into Independence, id. at 66, Lee’s Summit, id. at 73, or Liberty, id. at 78, and there was no present effect of past practices in preventing movement into Center, id. at 48, Hickman Mills, id. at 59, and Raytown, id. at 94. There was no credible evidence of housing discrimination in North Kansas City that had substantial interdistrict effect and much of the development there occurred after the effects of the few covenants were mooted by Shelley, id. at 83, and similar development after Shelley eliminated the effect of such covenants in Grandview. Id. at 53.

23 . Both cases dealt not only with the housing issue, but also contained strong findings based upon boundary violations. See Part VI, infra.

24 . On similar facts in United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y. 1985), decided after submission of this case, a New York district court imposed an interdistrict remedy based on housing violations. The detailed findings of the district court established a lengthy chain of actions which were designed to and succeeded in concentrating the black population in southwest Yonkers and in maintaining east and northwest Yonkers as overwhelmingly white communities. In contrast to the facts presented in this case, not one of Yonkers’ subsidized housing projects for families was located in the overwhelmingly white neighborhoods of the city’s east and northwest sections. Sites for such projects in white communities were repeatedly considered and rejected. Such action contributed significantly to extreme segregation in Yonkers. Id. at 1364-65. More than 30 years of subsidized housing activity with a sizeable and changing group of city officials sharing responsibility was involved. Id. at 1369. Over ■ that period, there was constant strong community opposition following proposals of sites, a political structure likely to make community opposition effective, and extreme consistency in sites in east Yonkers and other heavily white areas being rejected. Whatever the personnel, there was a common theme that racially influenced opposition to subsidized housing in certain areas of the city and acquiescence in that opposition by city officials. Id. at 1369-70. The court found that the extreme concentration of subsidized housing in southwest Yonkers was the result of a pattern and practice of racial discrimination by city officials. Id. at 1373.

25 . Chief Judge Lay’s dissent devotes considerable discussion to the findings of the district court in the intradistrict hearing concerning the acts of KCMSD. It refers to the movement of the black population from the central city in a southeast direction. See 593 F.Supp. at 1494. The dissent embarks upon factfindings of its own, however, when it argues that such movement “directly result[ed] in displacing whites into the SSDs.” Chief Judge Lay’s dissent at 98-99. This is directly contrary to the finding of the district court in its consideration of inter-district liability, and the dissent makes no effort to consider these statements in a proper Rule 52(a) analysis.

26 . A recent article. Housing Discrimination as a Basis for Interdistrict School Desegregation Remedies, 93 Yale L.J. 340 (1983), flatly argues for the extension of housing as a basis for metropolitan school desegregation remedies and as a means of overcoming the Milliken barriers. It outlines in some detail the use of this theory in various desegregation cases, including this one. See id. at nn. 20 & 21. Its description of the limitations of this theory are of interest:

By contrast, the housing approach is limited in two ways. It does not justify expansion of the remedy beyond the geographical area of operation of the housing authority or other governmental entity found guilty of constitutional violations. Further, the scope of the remedy is limited to the extent to which official housing discrimination demonstrably caused school segregation. Consequently, the housing approach is consistent with the agency principle that seeks to prevent local agents of the state from escaping participating in remedies for their own wrongdoing.

Id. at 347 (emphasis added) (footnotes omitted). There simply is no evidence in the record in this case that official housing discrimination caused school segregation and the findings of the district court as we have outlined above so demonstrate.

27 . Goldsboro commented about the myriad reasons for increase in black population in metropolitan areas, referring to Bradley v. School Board of the City of Richmond, Va., 462 F.2d 1058, 1066 (4th Cir. 1972), aff'd without opinion by an equally divided court, 412 U.S. 92, 93 S.Ct. 1952, 36 L.Ed.2d 771 (1973). Goldsboro, 745 F.2d at 330 n. 9.

28 . Chief Judge Lay in his dissent argues that the SSDs did not satisfy the requirements of Brown by simply adopting a racially neutral position. The argument that the SSDs must do more to counteract the interdistrict effects flowing from the pre-1954 interdistrict violations completely and totally ignores the district court’s findings that any pre-1954 acts had negligible and de minimis current effects.

29 . The Supreme Court, in Wygant v. Jackson Board of Education, — U.S. -, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986), pointed to the continued vitality of this principle.

30 . A voluntary interdistrict program is one that has great potential for improving the racial balance in the Kansas City area. The experience in St. Louis with such a plan seems to have been favorable. The district court is correct in its holding that such a program cannot be manda-torily imposed upon the record before the court. Whether a refusal of a district to participate in such a voluntary program may evidence discriminatory intent and thus be an independent basis for further relief and mandatory participation is an issue that we should not anticipate.

31 . That portion of the court’s order relating to achieving AAA status divided costs evenly between the State and KCMSD. None of the parties object to this portion of the ordered remedy which provides for an increase in librarians and teachers primarily for the purpose of providing additional planning time.

32 . This program carried a total cost of $12,000,-000 with payments of $2,000,000, $4,000,000, and $6,000,000 for each of three years.

33 . The valuation per pupil in KCMSD is $60,371 as opposed to averages of $40,000 in the SSDs. State Ex. 4.