Jenkins ex rel. Agyei v. Missouri

931 F.2d 470
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 22, 1991
DocketNos. 89-1253, 89-1311, 89-1838, 89-1956, 89-2337 and 89-2643
StatusPublished
Cited by1 cases

This text of 931 F.2d 470 (Jenkins ex rel. Agyei v. Missouri) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins ex rel. Agyei v. Missouri, 931 F.2d 470 (8th Cir. 1991).

Opinion

JOHN R. GIBSON, Circuit Judge.

The Kansas City school desegregation remedy continues to spawn numerous district court orders and appeals therefrom, most of them by the State of Missouri. Here, the State appeals from five separate district court orders that: 1) approved a revised procedure for funding the desegregation remedy; 2) required the State to pay the entire cost of asbestos removal in one phase of the school renovation capital improvements plan and fifty percent of it in the remaining phases of the plan; 3) approved the cost overrun on the construction of the new Central High School and required the State to pay half; 4) approved a formula for calculating costs the school district avoided as a result of the establishment of two new middle schools required by the desegregation plan; and 5) refused to require the desegregation monitoring committee to allow the State to bring its own court reporter to the committee’s proceedings. In addition, a group of schoolchildren appeal from an order disqualifying their attorney and denying their motion to modify the magnet school plan. We affirm the orders entered by the district court.

[475]*475In a June 5, 1984, order the district court rejected claims of interdistrict violations. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 105 (W.D.Mo. June 5, 1984). After hearing additional evidence, the district court found the State of Missouri and the Kansas City, Missouri School District (KCMSD) liable for racial segregation of students within KCMSD and for failure to dismantle the dual school system. Jenkins v. Missouri, 593 F.Supp. 1485, 1503-04 (W.D.Mo.1984). After additional hearings, the district court ordered intradistrict remedies against KCMSD and the State. This court reviewed these several orders in Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) (en banc) (Jenkins I), cert. denied, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987). Additional orders dealt specifically with developing and funding a desegregation plan, including a capital improvement plan, which provided for the renovation of certain existing facilities, construction of new facilities, and a magnet school plan. Jenkins v. Missouri, 639 F.Supp. 19 (W.D. Mo.1985); Jenkins v. Missouri, 672 F.Supp. 400 (W.D.Mo.1987). We affirmed these orders in Jenkins v. Missouri, 855 F.2d 1295 (8th Cir.1988) (,Jenkins II). The Supreme Court granted certiorari to hear appeals related to the funding of the remedy by increased property taxes, Missouri v. Jenkins, 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1990), and affirmed this court’s rulings on the issue. Missouri v. Jenkins, — U.S. -, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990).

The implementation and funding of the desegregation remedy has resulted in continued litigation. The district court established a desegregation monitoring committee to oversee implementation of the court’s orders, recommend modifications, and consider certain issues subject to review by the district court. The functioning of this committee and issues relating to the remedy and the funding of the remedy were before us in Jenkins v. Missouri, 890 F.2d 65 (8th Cir.1989) (Jenkins III). As the parties have continued to differ on the development of the details of the desegregation remedy, the district court has held additional hearings and entered numerous orders. A group of six orders comes to us on appeal in what is now the fourth round of the intra-district desegregation litigation.1 While the broad scope of the desegregation litigation bears upon each issue in these orders, we believe that it is most efficient to forego a lengthy history and instead state the relevant facts as we discuss the separate issues.

I.

The State first appeals from the district court’s order of January 3, 1989, approving a revised procedure for funding the desegregation remedy. Jenkins v. Missouri, No. 77-0420-CV-W-4 (W.D.Mo. Jan. 3, 1989).

In response to this court’s ruling that the district court exceeded its power in ordering an income tax surcharge to fund desegregation costs, Jenkins II, 855 F.2d at 1315-16 (8th Cir.1988), KCMSD requested increased funds from the State in order to insure that the remedy would be fully funded. The January 3, 1989, order implemented a revised funding method, known as a drawdown procedure, which works as follows: In any given month, desegregation costs are first paid by KCMSD with available desegregation revenues. After KCMSD spends all of its available funds, desegregation expenses are paid by withdrawing money from a special joint program account, into which the Treasurer of Missouri deposits the State’s share of desegregation costs. The court ordered the State to maintain an $11 million balance in the account at the beginning of each month. Jenkins, slip op. at 4 (Jan. 3, 1989). Prior to this order, the State had been [476]*476ordered to maintain a $5.25 million balance. The district court increased the State’s funding obligation because the State and KCMSD were jointly and severally liable and this court has mandated that the remedies be fully funded.

The State argues that the district court erred in ordering the revised draw-down procedure because the State is now required to pay remedial costs for which KCMSD had been previously held to be solely liable. The State boldly argues that the district court has not held the State and KCMSD jointly and severally liable for the legal wrong underlying the remedy. The State urges that the district court did not make a finding of joint and several liability for the underlying wrong at the liability trial, and that the district court’s application of joint and several liability was a “recent fabrication” in reaction to the State’s successful appeal of the income tax surcharge.

We reject these arguments. We view the State’s arguments as mere efforts to relitigate an issue that was settled long ago. In our decision dealing with the funding of the remedy, we made abundantly clear “that the constitutional violations must be remedied and the remedies fully funded.” Jenkins II, 855 F.2d at 1816. We stated:

In our earlier en banc opinion we made clear that the remedy ordered by the district court must be fully funded. Should the funds that KCMSD can provide for desegregation expenses under today’s decision fall short, the remainder must be paid by the State, as the orders of the district court have imposed joint and several liability on the State and KCMSD.

Id. (citation omitted).

The district court’s order recognized this very language in requiring the State to pay the balance of desegregation expenses as a jointly and severally liable party. Jenkins, slip op. at 4 (Jan. 3, 1989). In so doing, the district court carefully followed our specific directions that the remedies be fully funded.

The State’s argument, with its all too evident personal overtones implying that the district judge recently fabricated a finding of joint and several liability, is plainly refuted by numerous orders entered in this litigation. For example, the district court order entered November 12, 1986, explicitly found the State and KCMSD jointly and severally liable for a portion of the magnet school plan, and the State solely liable for the remaining costs of its implementation. Jenkins v. Missouri, No. 77-0420-CV-W-4, slip op. at 1 (W.D.Mo. Nov. 12, 1986).

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Kalima Jenkins, by Her Friend, Kamau Agyei Carolyn Dawson, by Her Next Friend, Richard Dawson Tufanza A. Byrd, by Her Next Friend, Teresa Byrd Derek A. Dydell, by His Next Friend, Maurice Dydell Terrance Cason, by His Next Friend, Antoria Cason Jonathan Wiggins, by His Next Friend, Rosemary Jacobs Love Kirk Allan Ward, by His Next Friend, Mary Ward Robert M. Hall, by His Next Friend, Denise Hall Dwayne A. Turrentine, Turrentine, by His Next Friend, Shelia Turrentine Gregory A. Pugh, by His Next Friend, David Winters, on Behalf of Themselves and All Others Similarly Situated, American Federation of Teachers, Local 691 v. The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri, Wendell Bailey, Treasurer of the State of Missouri Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, Appellants,and School District of Kansas City, Missouri and Claude C. Perkins, Superintendent Thereof, Icelean Clark Bobby Anderton Eleanor Graham John C. Howard Craig Martin Gay D. Williams Kansas City Mantel & Tile Co. Coulas & Griffin Insurance Agency, Inc. Sharon Dunham Lindsay K. Kirk Robert Frazier Rick Feierabend Linda Hollenbeck James Hollenbeck Susan Horseman and Clifford M. Horseman, Jackson County, Missouri. Kalima Jenkins, by Her Friend, Kamau Agyei Carolyn Dawson, by Her Next Friend, Richard Dawson Tufanza A. Byrd, by Her Next Friend, Teresa Byrd Derek A. Dydell, by His Next Friend, Maurice Dydell Terrance Cason, by His Next Friend, Antoria Cason Jonathan Wiggins, by His Next Friend, Rosemary Jacobs Love Kirk Allan Ward, by His Next Friend, Mary Ward Robert M. Hall, by His Next Friend, Denise Hall Dwayne A. Turrentine, by His Next Friend, Shelia Turrentine Gregory A. Pugh, by His Next Friend, David Winters, on Behalf of Themselves and All Others Similarly Situated, American Federal of Teachers, Local 691 v. The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri Wendell Bailey, Treasurer of the State of Missouri Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, and School District of Kansas City, Missouri and Claude C. Perkins, Superintendent Thereof, Icelean Clark Bobby Anderton Eleanor Graham John C. Howard Craig Martin Gay D. Williams Kansas City Mantel & Tile Co. Coulas & Griffin Insurance Agency, Inc. Sharon Dunham Lindsay K. Kirk Robert Frazier Rick Feierabend Linda Hollenbeck James Hollenbeck Susan Horseman and Clifford M. Horseman, Jackson County, Missouri. Kalima Jenkins, by Her Friend, Kamau Agyei Carolyn Dawson, by Her Next Friend, Richard Dawson Tufanza A. Byrd, by Her Next Friend, Teresa Byrd Derek A. Dydell, by His Next Friend, Maurice Dydell Terrance Cason, by His Next Friend, Antoria Cason Jonathan Wiggins, by His Next Friend, Rosemary Jacobs Love Kirk Allan Ward, by His Next Friend, Mary Ward Robert M. Hall, by His Next Friend, Denise Hall Dwayne A. Turrentine, by His Next Friend, Shelia Turrentine Gregory A. Pugh, by His Next Friend, David Winters, on Behalf of Themselves and All Others Similarly Situated, American Federation of Teachers, Local 691 v. The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri Wendell Bailey, Treasurer of the State of Missouri Missouri State Board of Education, Roseann Bentley, Dan L. Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, and School District of Kansas City, Missouri and Claude C. Perkins, Superintendent Thereof, Kalima Jenkins, by Her Friend, Kamau Agyei Carolyn Dawson, by Her Next Friend, Richard Dawson Tufanza A. Byrd, by Her Next Friend, Teresa Byrd Derek A. Dydell, by His Next Friend, Maurice Dydell Terrance Cason, by His Next Friend, Antoria Cason Jonathan Wiggins, by His Next Friend, Rosemary Jacobs Love Kirk Allan Ward, by His Next Friend, Mary Ward Robert M. Hall, by His Next Friend, Denise Hall Dwayne A. Turrentine, by His Next Friend, Shelia Turrentine Gregory A. Pugh, by His Next Friend, David Winters, on Behalf of Themselves and All Others Similarly Situated, American Federation of Teachers, Local 691 v. The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri Wendell Bailey, Treasurer of the State of Missouri Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, and School District of Kansas City, Missouri and Claude C. Perkins, Superintendent Thereof, Kalima Jenkins, by Her Friend, Kamau Agyei Carolyn Dawson, by Her Next Friend, Richard Dawson Tufanza A. Byrd, by Her Next Friend, Teresa Byrd Derek A. Dydell, by His Next Friend, Maurice Dydell Terrance Cason, by His Next Friend, Antoria Cason Jonathan Wiggins, by His Next Friend, Rosemary Jacobs Love Kirk Allan Ward, by His Next Friend, Mary Ward Robert M. Hall, by His Next Friend, Denise Hall Dwayne A. Turrentine, by His Next Friend, Shelia Turrentine Gregory A. Pugh, by His Next Friend, David Winters, on Behalf of Themselves and All Others Similarly Situated, American Federation of Teachers, Local 691 v. The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri Wendell Bailey, Treasurer of the State of Missouri Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, and School District of Kansas City, Missouri and Claude C. Perkins, Superintendent Thereof, Kalima Jenkins, by Her Friend, Kamau Agyei Carolyn Dawson, by Her Next Friend, Richard Dawson Tufanza A. Byrd, by Her Next Friend, Teresa Byrd Derek A. Dydell, by His Next Friend, Maurice Dydell Terrance Cason, by His Next Friend, Antoria Cason Jonathan Wiggins, by His Next Friend, Rosemary Jacobs Love Kirk Allan Ward, by His Next Friend, Mary Ward Robert M. Hall, by His Next Friend, Denise Hall Dwayne A. Turrentine, by His Next Friend, Shelia Turrentine Gregory A. Pugh, by His Next Friend, David Winters, on Behalf of Themselves and All Others Similarly Situated, American Federation of Teachers, Local 691 v. The State of Missouri Honorable John Ashcroft, Governor of the State of Missouri Wendell Bailey, Treasurer of the State of Missouri Missouri State Board of Education, Roseann Bentley, Dan Blackwell, Terry A. Bond, President, Roger L. Tolliver, Raymond McCallister Jr., Susan D. Finke, Thomas R. Davis, Cynthia B. Thompson, Members of the Missouri State Board of Education, Robert E. Bartman, Commissioner of Education of the State of Missouri, and School District of Kansas City, Missouri and Claude C. Perkins, Superintendent Thereof, Ronika Newton, by Her Next Friends, Ronald and Debra Newton Marques Bussey, by His Next Friend, Christie Newman Brian McClelland by His Next Friend, Ella McClelland Bryant Lightsey, by His Next Friend, Gina Lightsey Nia Webster, by Her Next Friend, Ajamu Webster and Courtney Adams, by Her Next Friend, Clinton Adams, Jr.
931 F.2d 470 (Eighth Circuit, 1991)

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