Transcript

IN THE SUPREME COURT OF THE UNITED STATES

MISSOURI, ET AL., Petitioners v. KALIMA JENKINS, ET AL.

No. 93-1823

January 11, 1995

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m.

APPEARANCES:

JOHN R. MUNICH, ESQ., Assistant Attorney General of Missouri, Jefferson City, Missouri; on behalf of the Petitioners.

THEODORE M. SHAW, ESQ., New York, New York; on behalf of the Respondents.

PAUL BENDER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Respondents.

PROCEEDINGS

10:00 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 93-1823, Missouri v. Jenkins.

Mr. Munich.

ORAL ARGUMENT OF JOHN R. MUNICH ON BEHALF OF THE PETITIONERS

MR. MUNICH: Mr. Chief Justice and may it please the Court:

This 17-year-old desegregation case involves a remedy of unprecedented breadth and unparalleled expense. One of the remedy's central aims is to lure nonminority children from the suburbs to the district for the express purpose of altering the racial balance within the Kansas City School District.

In pursuit of this so-called desegregative attractiveness goal and the companion objective of suburban comparability, one of the orders at issue here today requires the State of Missouri to prove that a quality education component of the remedy has produced improved student achievement.

In the other orders at issue today, the lower courts have also ruled that the State must fund salary increases for noninstructional personnel of the KCMSD, again premised on the same goals of suburban comparability and desegregative attractiveness.

These rulings, and the underlying goals that motivate them, far exceed the scope of the violation found in this case. They must be corrected to ensure that the case may proceed to unitary status in a proper and orderly fashion.

We start off with the proposition that the core mandate in one of these cases is to eliminate the racially identifiable schools from the district. That has been the focus since Green, and carried through in Dowell and Freeman.

That test looks to whether the resources and the students in the district have been allocated in a race-neutral fashion to the intent possible, to the intent practicable. In other words, has everything practically been done to ensure that students are assigned to schools on an equitable basis, and that resources are assigned to schools --

QUESTION: Mr. Munich, there was an order entered by the district court, I take it, requiring improved student achievement?

MR. MUNICH: That's correct, Your Honor.

QUESTION: And I take it from the questions presented in the petition for certiorari in this case that we are not asked to review the propriety of that order?

MR. MUNICH: What we are asking the Court to do, Justice O'Connor --

QUESTION: Isn't that right? I mean, that -- we are not asked to review whether that order was proper or not?

MR. MUNICH: At the outset, that's correct, Justice O'Connor. What we are asking the Court to do, though, is to examine today, in light of the State's -- the posture of this case for unitary status, whether the goals that the lower courts have held the State to are proper today, and those goals are what we view as the interdistrict goals of suburban comparability and --

QUESTION: You know, I thought we were here to review whether the State, as opposed to the school district, should have partial unitary status. I mean, I thought that was really the question before us, and whether the courts below examined the proper factors and made the proper determination on that issue. Is that right?

MR. MUNICH: That's correct, Justice O'Connor, and we --

QUESTION: Because much in your brief seemed to go quite beyond that and reach back to the validity of the order that was initially entered.

MR. MUNICH: I think the posture of this case, Justice O'Connor, is very similar to what the Court confronted in Spangler. There, there had been initial orders and goals set for minority to majority transfers and racial balances and all of that. The Court said that -- and when it took the case, it would not review the validity of those goals back then, but it would look to the validity of those goals in 1974, when the district had asked to be relieved of the order.

We are asking for the same thing here. We are not saying that everything that has already happened needs to be undone, but what we are saying is that the goals that are still extant in these orders, these interdistrict goals, go beyond the scope of the violation here, and when we are being held, when the State of Missouri is being held to those goals, that the Court must look at those in the context of the question of whether partial unitary status should be ordered and what the standards are, more importantly.

QUESTION: Do you take the position that the measurement of student achievement is irrelevant in determining whether the goals have been met?

MR. MUNICH: We do, Your Honor. For the purpose of unitary status there's no question about that. We believe that if one --

QUESTION: There is no question that it is irrelevant?

MR. MUNICH: We don't think it is relevant, Your Honor, for these reasons. First off, the traditional Green factors that the Court has historically looked at deals with facilities --

QUESTION: Well, the Green -- you -- I take it you would accept the proposition that the Green factors are not exclusive?

MR. MUNICH: Your Honor, we think that they may not be completely exclusive. However, we think that they --

QUESTION: Well, that means they're not exclusive.

MR. MUNICH: That's correct, Your Honor --

QUESTION: Okay.

MR. MUNICH: -- but we do think they focus on allocation of resources and not what you get after you do that, and we think the reason --

QUESTION: That's right. They may, indeed, so focus, but if it is appropriate to look at some point to educational offerings as being a goal, ultimate or intermediate, then why is it irrelevant to look to the measurement of whether those educational offerings are having any effect or not?

MR. MUNICH: We think for this reason, Justice Souter. Educational quality, of course, was one of the things the district court looked at in Freeman, and it looked at whether resources had been allocated, textbooks, faculty assignments, were teachers biased, the good teachers, the better quality teachers biased in favor of the white schools or the black schools, and those are the types of things that we believe can be looked at.

But when we're talking about how the student does, on the other hand, we think that's quite a different story, and for this reason. On the one hand, when we talk about a school district that makes assignments, that is asked to basically allocate resources to eliminate racial identifiability in the schools, it can do that by executing a change in policy. If it says, the boundary line shall be henceforth moved, it happens. If it says that the athletic league shall henceforth be unified, it happens.

On the other hand, when we are talking about how a student does, those inputs that the school board introduces are filtered through individual students and their individual talents, volitions --

QUESTION: Even if it happened, then, even if there were a remarkable increase in achievement level, that, too, would be irrelevant, that it doesn't matter, even if you could show a remarkable improvement, that would not qualify you in any way to be released?

MR. MUNICH: We think that's right, Justice Ginsburg. We're not trying to have both sides of the pie, here. If resources are not allocated equally, if there is racial identifiability in the schools because of the way resources are allocated, we're not -- the State should not be left off the hook because scores have gone up for some reason.

QUESTION: I'm glad that you've clarified that, that it's irrelevant either way, and I would also be helped if you could point to the precise part of the district court's order that you're challenging, because there seems to be some confusion.

Two of the members of the dedicated panel on the Eighth Circuit thought that there was no order that increased test scores were required. I'm sure you're familiar with the part of the clarification that two of the judges gave on rehearing. It was that test scores must be only one factor in the equation.

So where -- and those two judges also said nothing in the district court's opinion said otherwise, so where do you find this order that there must be an improvement in the scores?

MR. MUNICH: One of the problems here, of course, Justice Ginsburg, is the fact that the district court did not directly address the State's partial unitary status in the order that it issued on June 17, 1992.

What the court of appeals did when it examined the State's claims on appeal was, it looked not only at that order, but it also looked at several other orders to try to ascertain from those whether the district court had properly analyzed the State's Freeman arguments, the unitary -- partial unitary status argument.

It looked, for example -- this is in the petition appendix at page 131, where the district court relied on national norms in another order. That's the April 16th, '93 order.

QUESTION: But why shouldn't we take it as the law of the case that nothing in the district court's opinion so required, that what was said with regard to test scores is that there a factor in the equation?

MR. MUNICH: Well, Your Honor, we would -- it's certainly unclear, as you point out, whether it is a -- whether the panel meant it is a factor or a controlling factor, but we think that the State's view is that either way it should not be considered on the question of whether unitary status is at hand, that the whole point of looking at whether unitary status is at hand is a question of whether, again, the resources within the district have been allocated properly. The Eighth Circuit standard, even if we read it narrowly as simply a relevant factor, we think does an injustice to that standard.

QUESTION: You say it is not a relevant factor, and that if all other factors have been satisfied but this one hasn't, and therefore that's the sole basis why you're denied the unitary status, that's wrong?

MR. MUNICH: We think that's wrong, Justice Scalia.

QUESTION: Aren't you retreating from your answer to me a moment ago? You agreed that the Green factors were not exclusive. You seem to be coming back to the position that nothing but allocation is resources, which I take to be a Green factor enumeration, is relevant. You conceded a moment ago that there is more that may be relevant than that.

MR. MUNICH: Justice Souter, let me make sure that I'm -- that my answer on that is clear. There may be things other than faculty assignments, extracurricular activities, facilities, which are among the traditional Green factors. Those things may include, we think, allocation of textbooks, allocation of computers, per capita spending -- in Freeman, of course, there was some question whether per capita spending among students had been equalized.

We think that those things can properly be considered. In our view, they are probably subsumed within the six Green factors as they exist, but we would say -- we would concede that allocation issues, when we're talking about resources, are things that Green looks to, but that --

QUESTION: Do we somehow blind ourselves to the forest for the trees, here, because the forest is the elimination of the vestiges of the prior de jure discrimination, and it seems to me that the argument you're making is that we ignore the forest for the trees, and by and large the trees are the Green trees?

MR. MUNICH: I don't think that would be the result, Justice Souter.

QUESTION: Where, then, in your analysis, is there room to consider the -- sort of the ultimate question of the elimination of vestiges?

MR. MUNICH: We think that the elimination of vestiges, to the extent practical, comes about by the allocation, by -- first by the allocation of equal resources, and --

QUESTION: Well, isn't one of the original evils of a segregated system substandard academic performance?

MR. MUNICH: If that has been found in a proper case, Justice Kennedy, that is correct, and that gets us to what --

QUESTION: And you would not challenge that finding in this case, as I understand it.

MR. MUNICH: We're not saying that that's a clearly erroneous finding. We are challenging the legal sufficiency of it, Justice Souter.

But to get back to your question, Justice Kennedy, we think that -- our view is that one of the inherent flaws that has guided the lower courts below is a commingling of the analysis, of the analyses as to whether, 1) whether unitary status is at hand, measured by the Green factors, and as I say, we look -- we believe that fairly looks to whether resources have been allocated equally.

The point that Your Honor makes I think is the second point, which is namely, are there some sort of educational deficits that the de jure system have visited upon minority students? The problem, we think, is that -- and that, of course, is Milliken II.

The problem, we think, is that the courts below have not -- have failed to distinguish between those two components of the remedy, and that is why -- of the analysis, and that is why we have rather skewed tests as to when the remedy should end, rather skewed goals here as to what must be attained, and what we view, in essence, as an open-ended remedy.

QUESTION: I assume that if you have nondiscriminatory input, teachers and textbooks and so forth, for a certain period of time, for long enough, that every student who is currently in the school system has not been subjected to lower input. Then it could not be possible that any of the lower achievement is a vestige of discrimination, isn't that right?

MR. MUNICH: That's correct, Justice Scalia.

QUESTION: And for how long has that compliance with the equal input requirement existed in this school system?

MR. MUNICH: In this case the initial Milliken II, the compen -- what the parties refer to here as the Milliken II components were implemented in the beginning of 1985, '86.

QUESTION: '85, '86?

MR. MUNICH: That's right, Justice Scalia.

QUESTION: So at least at the grammar school level, through eighth grade, there's nobody in that system that hasn't had equal input?

MR. MUNICH: That's correct, Justice Scalia. The other thing I should point out is that before the remedy was entered in this case, the Kansas City District, beginning in 1977, implemented its own voluntary student reassignment policy. It was a massive effort. It transferred -- involved the transfer of some 16,000 of the school district's 41,000 students.

It used noncontiguous zoning, clustering, pairing, a lot of the same types of things that were -- procedures and remedies that were used throughout the South to desegregate heavily segregated school districts. That has been going on since 1977 in this district.

QUESTION: Mr. Munich, then you're saying that the Government was inaccurate in telling us, as they did in their brief, that in 1985 you joined -- the State joined in urging the district court to order programs that would increase student level achievements at the both elementary and secondary level, so apparently in 1985 you thought that there was not the required upgrading of the system.

MR. MUNICH: After liability was ordered -- found here, Justice Ginsburg, the court ordered the parties to come forward with plans, and the court made it very clear that what it wanted was plans that would be addressed to student achievement. The State, of course, came forward with such plans.

I should add, though, that the point here is that on two occasions at least the State challenged whether those compensatory plans, or those remedial plans, could be applied in a system-wide fashion such as we have here, and that --

QUESTION: But there is no -- I'm trying to determine the basis for your saying that everything was up to snuff in 1985, because it seems the district court didn't think so, and from what the Government represents about the State's position, even the State didn't think that in 1985 you were in full compliance.

MR. MUNICH: Our position is not, Justice Ginsburg, that we were -- that the district was fully equalized as of 1985. That's when the programs, these compensatory or remedial programs began.

The point that I may have been unclear on was that prior to that, at least in the student assignment arena, there had been massive changes going on.

QUESTION: I thought in '85 the district court was not trying to equalize all of the schools in the district, but was rather trying to have a level of input, and of accomplishment, that made that district better than all the surrounding districts.

MR. MUNICH: That is correct, Justice Scalia.

QUESTION: Wasn't that the purpose for the additional upgrading that you agreed to, not necessarily assume that all these schools within the district were equal, but rather, to make this district better than the ones around it so it would attract new students?

MR. MUNICH: That's correct, Justice Scalia, and that's where we parted ways with the district court. We had the view back then, and still take the view, that to the extent there were identifiable victims of the de jure system who had suffered educational deficits, that Milliken II, of course, makes clear that something extraordinary can be done for them.

But it needs to be targeted to those victims, and one of our complaints with this remedy is that this -- these remedial components were not so targeted.

QUESTION: Yes, but your complaint is with the remedy, but your -- we do not have the question before us whether that goal, whether that underlying theory to which the remedy relates, was legally erroneous or not. That's over and done with. We denied cert on that in 1989, as I understand it.

MR. MUNICH: I -- that is correct, Justice Souter, it was denied.

QUESTION: So the only question we come back to is, assuming that to be, as it were, the standard of the case, is it legally irrelevant that the test scores are up, down, or unchanged?

MR. MUNICH: Justice Souter, I would disagree with you on the question of whether that question -- whether those goals are correctly before the Court or not. We think that it --

QUESTION: What's the significance of the denial of cert in '89 if they are?

MR. MUNICH: I think it has no significance, Your Honor. I think that --

QUESTION: What's the significance of your not repeating the questions you brought up then?

Your current position pinpoints two precise questions, and it's strikingly different from your petition the last time around, when you did present to the Court, and the Court did not grant cert on, the broad question.

Now, presented with the broad question, the Court denied cert. This time, you chose not to repeat the broad question, and then just to give us those two specific questions.

I've heard of bringing in narrower questions under a larger umbrella, but how do you present the narrower questions and then reach up to the large question that you didn't repeat?

MR. MUNICH: Justice Ginsburg, I think the difference is exactly the type of situation that occurred in Spangler, where we are not saying today -- back in '88, when we did raise the issue of the scope, that was as an initial matter of whether these remedies should go forward as of this day, and the Court denied cert on that issue, but we do not think today in 1995 that the Court can properly examine the question of unitary status in this case without looking at those unitary goals.

Indeed, the Eighth Circuit, when it analyzed our appeal in this case, said that it had to look at those goals to ensure whether we had been held to them properly or not, and the Eighth Circuit did in fact go back, and one of the things it did was look at whether the goals of desegregative attractiveness and suburban comparability had been met.

And, in fact, even the Jenkins respondents argued in their brief at page 25 that the State had the burden below of proving that the quality of education programs had achieved their remedial goals, so we think, in fact, that it would be examining this question, this question of partial unitary status here and what the standards are, with blinders, to look at that question without examining the Eighth Circuit's underlying goals, because --

QUESTION: Well, what specific decision of the court of appeals do you want us to reverse here? I mean, being very precise, looking at what the court of appeals did, what is it you're asking?

MR. MUNICH: There are two decisions, Justice O'Connor. One was in November and one was in December of 1993. The first dealt with this so-called Freeman issue, the -- and the salary issue, the second dealt with the salary issue, also.

We want the Court -- or, what we ask the Court to do is to reverse both those orders on the grounds that -- on the first, on the grounds --

QUESTION: Well, excuse me, because you state in your reply brief that you do not seek a declaration of partial unitary status, so please tell us, as simply as you can, precisely what it is you are saying, you are asking us to do with regard to the court of appeals decision.

MR. MUNICH: First, to reverse the orders. Second, to instruct the lower courts that the interdistrict goals of suburban comparability and desegregative attractiveness are beyond the scope of this intradistrict case. Third, to instruct the lower courts that the compensatory or remedial programs in this case must be limited to those victims of segregation, and third to -- and last to make sure that the -- to make clear to the lower courts that the question of student outcomes, as opposed to allocation of resources, has no part in this case.

QUESTION: Why do we have to instruct the lower courts to that effect? Isn't it enough simply to answer the questions that you presented in your petition and to say that no, student achievement levels cannot be the basis for measuring compliance because -- because, without ordering it to do anything, because you have no power to require this district to be better than surrounding districts? Can we not just give it as a reason for the precise matters you ask us to address in issuing any order on that subject?

MR. MUNICH: That may suffice, Justice Scalia, but the thing that I need --

QUESTION: Unless you do that, it seems to me you're going beyond the questions presented.

I thought your position was, in answering the question presented, of course you can't decide whether this particular matter is within the power of the court to decree unless you know what the court is authorized to achieve, and if it is not authorized to achieve interdistrict comparability, or, indeed, interdistrict superiority, then this particular factor is improper.

MR. MUNICH: That would probably do the trick, Justice Scalia, but --

QUESTION: It's the most you'll get from me.

(Laughter.)

QUESTION: Let me ask you this: in Missouri, have there been any challenges brought by districts that are not within this district who claim, we're being denied equal protection because the facilities and opportunities afforded us by the State are so much less than afforded in this district? Have you had to face those claims yet?

MR. MUNICH: We have not -- my office, Your Honor, has not defended any such claims. I don't know whether anything is brewing out there or not. Obviously, there are complaints from school --

QUESTION: What is the difference between per-student spending in this district versus per-student spending in Missouri districts as a whole?

MR. MUNICH: On the general level the average State-wide is somewhere between $3,000 and $4,000 per student, Justice -- Chief Justice -- Mr. Chief Justice.

In the district, there is some question whether you take out the capital costs or not, but it's somewhere between, with the capital we would say about $13,500 as of 1992, '93. If you take the capital out, somewhere about $9,000 or $10,000.

QUESTION: As opposed to $4,000 State-wide?

MR. MUNICH: That's correct, Mr. Chief Justice.

QUESTION: I have two questions, if I may ask you very briefly. When in the district court did the State first take the position that student achievement was totally irrelevant to the issues before the court?

MR. MUNICH: I think, Justice Stevens, that it certainly occurred at the court of appeals level.

QUESTION: No, no, I said in the district court.

MR. MUNICH: One of the -- the reason I answer that way is that the district court did not tell us when the State moved for partial unitary status that that was the standard it would be holding the State to. In fact, that standard --

QUESTION: Really? But as I understand it, earlier in the proceedings you had agreed that they were, or at least you had accepted the proposition that the district court was going to rely in part on this factor.

MR. MUNICH: On the --

QUESTION: And I'm just wondering when you told the district court for the first time that you felt it was totally irrelevant.

MR. MUNICH: On the Milliken II side, Justice Stevens, we did, when the court ordered us to, propose compensatory programs that were remedial in nature, aimed at helping students out with extraordinary educational programs. At that time, though, and until -- as far as I am aware, until this court of appeals decision that -- November '93 court of appeals decision --

QUESTION: But you never asked the district court to rule squarely one way or the other as to whether or not this was a factor that it was permissible for it to consider?

MR. MUNICH: That's correct, Justice Stevens. That --

QUESTION: You did not ever ask --

MR. MUNICH: Again, that first surfaced in the court of appeals.

QUESTION: My second question is, throughout your brief, you use the phrase, the dedicated panel. I didn't quite understand whether you were challenging the integrity of the panel or not.

MR. MUNICH: It didn't occur to me until --

QUESTION: What did you mean by that? What did you mean by that?

MR. MUNICH: It didn't occur to me until after we wrote that that that could be misconstrued.

QUESTION: It was misconstrued by me, and I thought it was a most unfortunate phrase.

MR. MUNICH: The Eighth Circuit in the case is referred to as a dedicated panel because the same three judges sit on every appeal.

QUESTION: Is every panel that has the same judges over and over again a dedicated panel?

MR. MUNICH: Yes. Yes.

Unless there are further questions, Mr. Chief Justice --

QUESTION: I do actually have a -- I want to go back to your initial statement. Are you saying, imagine a school district was segregated for many years, and as a result, those discriminated against could not read, and then it was segregated. Why isn't it at least relevant, when you're asking whether the desegregation is working, that you'd look at some point to see if they can read?

MR. MUNICH: For a couple of reasons, Justice Breyer.

QUESTION: Are you honestly saying you can't look to see if they can read now?

MR. MUNICH: We think that that is -- if the question is whether the State has done what it can do, we think that it's inherently impractical to ask more than that the State put into place the programs that the experts say are the appropriate ones to monitor them, to make sure that they're funded properly, and to allow the students to proceed through their academic careers in those programs.

QUESTION: Well, I suppose it's always a matter of argument as to how long you keep having to dedicate the court's efforts to see that the school system is functioning properly, and in trying to answer that question, are we still okay? Do we have to do more? In trying to answer that question, how long, can't you at least look to see if they can read now?

MR. MUNICH: We don't think, Justice Breyer, that that should be the analysis that the court undertakes, for this reason.

It's just -- again, it's inherently impractical, when -- the respondents' briefs and the United States' briefs even concede that, for example, if outcomes are flat, that may either mean that you've done all you can do, or that you need to do more, and it simply strikes us as being not as probative, in fact probably wholly or almost wholly nonprobative as compared to the question of whether you've applied the proper resources, monitored them, funded them, and made sure that they're in place.

QUESTION: Let me ask you a related question. One of the assumptions is, and I guess one of the findings in this case is, that one of the effects of the prior de jure segregation is an effect in sort of attitude and expectation which affects the performance that kids in school actually come up with, and the assumption, and again I think the finding here is, that those attitudes and expectations and attitudes get passed on. They go from one school generation, or, indeed, one biological generation to another, and it takes time to change them.

Do you deny that, a) that is a fact, and do you deny that that is a relevant consideration in coming to the conclusion of whether the vestiges of de jure segregation have been eliminated?

MR. MUNICH: We don't think that that's a proper consideration, Justice Souter, because we think that --

QUESTION: I take it you accept it as a fact, then, and you're just saying it should not be a legally relevant fact?

MR. MUNICH: It's possible, and the Court's opinions have certainly held that there's discrimination out there in society that -- that is unfortunate --

QUESTION: Well, we're not talking about discrimination in society here, we're talking about, sort of expectations about what can be achieved in school which just get passed on from parents to children, and from one group of kids to another group of kids.

And so it's not -- I think the point that I'm making is not that present racial attitudes are sort of undermining the scheme. I'm just saying that a certain set of attitudes gets passed on, and I take it you say as a factual matter, yes, it's true, they do.

MR. MUNICH: That may happen, and we think that that --

QUESTION: But you are saying that it's legally irrelevant and shouldn't be considered in assessing compliance with a plan like this?

MR. MUNICH: We think that's right, Justice Souter. It's just one of those things that --

QUESTION: Why should it be irrelevant if it's a fact, and if the object is to eliminate the vestiges, why should that be irrelevant?

MR. MUNICH: It's one of those things, we think, Justice Souter, that is just beyond, as Swann pointed out, the capacity of the schools to deal with.

QUESTION: Thank you, Mr. Munich.

Mr. Shaw, we'll hear from you.

ORAL ARGUMENT OF THEODORE M. SHAW ON BEHALF OF THE RESPONDENTS

MR. SHAW: Mr. Chief Justice, and may it please the Court:

The respondents contend that the principal issue in this case is whether the State, without even attempting to meet its burden of proof under this Court's decision in Freeman v. Pitts, is entitled to an order of partial unitary status ending the Milliken II remedial components of the remedy ordered by the district court.

Under Freeman, of course, the State had the burden of showing 1) that the vestiges of segregation have been eliminated to the extent practicable, secondly that retention of judicial control was not necessary to achieve the compliance with the decree in other aspects of the system, or the facets of the system, and thirdly, that there has been full and complete compliance with the remedial decree in good faith.

The State has not even attempted to meet its burden of proof. At the hearing below --

QUESTION: Do you think those vestiges include what Justice Souter was asking about, or the fact that that attitudes in one generation get passed on to another generation?

MR. SHAW: Justice Scalia, I think that they do. I think that Brown v. Board of Education --

QUESTION: And that -- those were included in the vestiges?

MR. SHAW: They may be included in the vestiges, but I realize --

QUESTION: That the State has to prove that they are no longer there?

MR. SHAW: No, I -- Justice Scalia, I think it depends on the findings of the district court. If there's a district court finding that there's a violation with effects, that those effects can be remedied, then I think there's a duty to remedy them. The State, of course, is always free to come in and show that it is impossible to remedy those effects of the violation.

QUESTION: That's the only defense? That's the only defense? The State is obliged to prove that there is no such vestige, or that if there is, there is nothing the State can do about it, even for something as remote, as unproximate as a generational attitude that's several generations back?

MR. SHAW: My argument and my position is simply that Swann controls. That is to say that the scope of the remedy is determined by the nature and extent of the violation, if there are findings, that they have to be remedied, but that's beyond what's presented in this Court.

QUESTION: I'd hate to have to try to prove that, either that it no longer existed, or that there was nothing that could be done about it. It seems to me quite impossible.

MR. SHAW: In any event, Justice Scalia, I believe that's beyond what's presented before this Court. It's not necessary to reach that question, because that's not what the district court relied upon. It's not what the plaintiffs rely upon. It's not what the school district relies upon in their arguments that the remedy needs to be full and complete in its effectiveness.

QUESTION: So you don't argue here that the lingering consequences of attitude on the part of the people who were in segregated schools is a factor in this particular case?

MR. SHAW: The findings here -- no. The findings here are much more specific. The findings here go to the effects of segregation with respect to the school district's ability to provide quality education and also the segregation that remained in the system.

There are findings, in fact, that talk about other effects of segregation, but we believe that those findings are not as crucial to the remedy here.

QUESTION: Mr. Shaw, who has the management authority over the schools in this district? Is it the State, or the school district, basically?

MR. SHAW: The school board certainly still has the management responsibilities over the district.

QUESTION: Are there -- as a result, are there any differences in -- for the district court to consider in an application for partial unitary status made by the State as opposed to the school district itself? In other words, are there different things required of the State and the school district that has the managing authority?

MR. SHAW: I think, Justice O'Connor, that because the State has been found guilty of the constitutional violation which precipitated the conditions in the Kansas City School District, its responsibility is to see that that -- that the effects of that violation are remedied to the extent practicable.

Now, in answering that question, it may be that because the State is not as close to the day-to-day operations of the school district, that in the facts of determining what is practicable, there may be a difference.

QUESTION: Yes, I thought there --

MR. SHAW: But that's a factual matter.

QUESTION: -- actually might be, that the State might be responsible more for the provision of facilities but not for the day-to-day teaching and that sort of thing that goes on, and I just wondered whether that has to be taken into account.

MR. SHAW: I think, Justice O'Connor, that no question with respect to what is practicable and what the State can accomplish has been foreclosed by the district court. Indeed, the problem is that the --

QUESTION: Well, except that if the lower courts here think that the State has to be maintained under its jurisdiction here until certain student test scores reach a certain level, then there may be a problem.

MR. SHAW: Well, perhaps it's time for me to speak to that point, then.

QUESTION: Yes.

MR. SHAW: It is not the position of the plaintiffs or the Kansas City, Missouri School District and the district court that this is an outcome-based measure. That is to say, unitary status does not depend on any particular degree of test scores. The district court simply did not apply that standard.

The argument that we are making, which is consistent with this Court's precedent in Swann and Milliken II and, indeed, in all its school desegregation jurisprudence, is that a district court has to have flexibility in fashioning a desegregation remedy, and in the process of doing so, it certainly can continue -- can consider test scores as one among many factors as to whether or not the violation has been remedied, but it can't do it inflexibly.

QUESTION: But you agree that no particular level of achievement could be the sole determining factor?

MR. SHAW: I agree that -- that's right. That is our position here, that we have -- we're not arguing here that any particular level of achievement is the sole determining factor, absolutely.

QUESTION: Mr. Shaw, as I understand the law, a State can have different districts that have a different level of educational input, and districts that have a different level of achievement, so long as there's not discrimination within each of those districts between majority and minority students.

Why is it relevant to that issue of law what the test scores of the district as a whole are? As I understand what we're talking about here, it's not the test scores of minority students who are presumably bearing the vestiges of prior discrimination, but rather the test scores of the entire district, white and minority as well. I don't see any relevance of that to the issue.

MR. SHAW: Justice Scalia, the district court made a finding that there has been a system-wide reduction in academic achievement in consequence of the constitutional violation -- that is, the segregation.

This is a district that is a heavily majority black district, and it is that way as a consequence of the violation that the State initiated, and in which the Kansas City, Missouri School District was complicit. As a consequence of that violation --

QUESTION: But that would be an interdistrict violation, and I thought there had been no finding of an interdistrict -- in fact, a finding that there was no interdistrict violation. The only issue here is whether there is discrimination within the district between minority and majority students, and I don't see it's at all relevant to that what the average test score of the district as a whole is. It would be -- it would be arguably relevant what the test scores of the minority students were, but --

MR. SHAW: Let me -- let me answer that question --

QUESTION: Now, I do see how it's relevant what the test score of the whole district is if you're trying to attract students from other districts, but that's an interdistrict problem and an interdistrict remedy. I don't see how it relates to intradistrict matters.

MR. SHAW: Let me answer that question in two ways. First, Justice Scalia, the district court did not find an interdistrict violation as it related to the suburban school districts. They were let out by the court's June 5th, 1984 order. It did not find that they were complicit in the violation, or that there was any effect in any one of those school districts.

The district court, however, has made findings that as a consequence of segregation, black students were impacted in the Kansas City School District, and that the Kansas City School District swelled in black enrollment. As a consequence of that, the Kansas City School District ultimately was rendered unable to raise the revenue necessary to fund public education in an adequate way.

As a consequence, all of the schools began to deteriorate. That affected all of the students in the system.

Let me use this analogy. If there is a school that is a majority black school as a consequence of segregative State action, and it is created as a majority black school, and there are still some white students in it, those white students will suffer the same effects of the violation as the black students or the majority in that school.

That is the same thing that happened in the Kansas City, Missouri School District. Eventually, the segregation violation overtook the entire district, and all of the students suffered. That was why the district court order was aimed at remedying the system-wide reduction in achievement.

Secondly --

QUESTION: I understand that explanation, but I don't see why it isn't an explanation that rests on a presumption of an interdistrict violation.

MR. SHAW: Let me, then, address the second part, which I think may -- I hope it will answer that question, Justice Scalia, and that's that the interdistrict violation was not found by the district court, but however, there are findings that white students left the system and went to public schools. Some left for the suburbs -- went to private schools, rather.

Certainly, even in an intradistrict remedy, it's appropriate for, given those findings, which are not under challenge here and we believe cannot be challenged at this point, for the court to fashion a remedy that attempts to attract those students back into the district.

It's voluntary. It doesn't run afoul of Milliken I. It doesn't impinge upon the autonomy of the suburban school districts. It also aims at attracting students back into the system who are in private schools within the boundaries of the Kansas City, Missouri School District.

That doesn't in any way implicate the interdistrict violation concerns that Milliken I addresses. That's why we lost on interdistrict relief. We know that. But we also know that the district court carefully fashioned a remedy that would precisely address the violation that it found and its effects.

QUESTION: Has the district court made any determinations or given any guidance as to when it is feasible or practical -- practicable to end its supervision?

MR. SHAW: That question, Justice Kennedy, the court began to take up in the April 16, 1993 order, which the Eighth Circuit relied upon. That -- in that order, the court asked for plans from -- or some -- rather, not -- yes, some plans from the parties to talk about a phaseout procedure over an alternative scheme of years. That indicated that the court is already thinking about that, and I want to stress that contrary --

QUESTION: Well, it must think about that under Freeman and Pitts, must it not --

MR. SHAW: That's right.

QUESTION: -- that the principal objective of the court must be to return control of this district to the civic authorities, not the judicial authorities?

MR. SHAW: That's correct. That -- I would only add that the principal objective also is to remedy the violation and then return it to the control of the authorities.

QUESTION: Mr. Shaw, could you be more specific about what those plans that were called for were, because they seemed to in years go from 3 years to 10 years. The district court said, come up with plans to get the State -- to get the court out of this, and why 3 years, 5 years, 7 years, and 10 years?

MR. SHAW: I think that the court was attempting to get before it an array of alternative plans under which it could consider what the best transition was going to be. That's why it chose these 3-year, 7-year, 10-year plans as the panoply at which it wanted to look. That makes sense. It wanted to carefully consider the transition phase.

It also stressed, I think, contrary to what I believe the State's representations to be, that it was contemplating this transition to a system in which the Kansas City, Missouri School District would be largely responsible, or wholly responsible, for funding whatever components of the remedy are left in place, and it would have to consider that consistent with the fact that the State would no longer be in as a defendant that was funding the remedy. We think that's proper under Freeman, under Dowell, and it's a responsible way for the district court to proceed.

QUESTION: Would you --

QUESTION: As a practical matter, doesn't that sound like the district is kind of walking towards a cliff? If they're now getting somewhere between $9,000 and $13,000 per student, as compared to $4,000 in other Missouri districts, and all of a sudden that funding is gone, then what happens to the school district?

MR. SHAW: Justice Rehnquist, that is exactly the kind of concern that I think the district court contemplated addressing in asking for these plans.

QUESTION: Well, what sort of plan would solve that problem?

MR. SHAW: Well, I think in part the answer is that if the plan as it is working now continues to succeed in attracting white patients back into the district, that would undercut the stigma that has been attached to the school district in which whites were not enrolled and as a consequence they wouldn't fund the district, and it may be possible to get on a better footing with respect to local funding for the school system.

It also is not necessary to maintain all of the aspects of the remedy in place, once a district is unitary. At that point, there should be a transition to a system that may be scaled down in terms of the way in which it operates. Many --

QUESTION: But it seems to me that what's happening here is that the greater the intrusion into the local domain, the easier it is for the court to justify its continued supervision, and I should think the calculus ought to be just the other way around.

I mean, you're asking here -- we haven't discussed it yet -- that we affirm the order raising teacher salaries, and I just see no end to this --

MR. SHAW: Oh, well, it --

QUESTION: And I fear, based on your answer to the Chief Justice's question, that the only way for you to continue this funding is to continue the judicial supervision --

MR. SHAW: Justice Kennedy --

QUESTION: -- which is contrary to Freeman and Pitts.

MR. SHAW: -- I have no doubt that there will be an end to this remedy, and certainly this Court's teachings make it clear to all of the parties that the Court will not countenance perpetual jurisdiction. That's not what this remedy is about.

There are difficult questions with respect to how to make the transition once the school system is unitary, but that's precisely what this Court considered in Freeman and why it requires district courts, given the kind of deference that this Court has traditionally placed in the hands of the district courts, to answer the difficult questions about how to make that transition.

I don't have all the answers at this point as to how this would work, because it has not yet been before the district court, but we think those questions should be brought there first, and not here, that the process of adjudication should not be an inverted pyramid in which the issues balloon as the case goes up to the Supreme Court.

QUESTION: Mr. Shaw, do you support even the district court's order increasing salaries of noninstructional employees --

MR. SHAW: Yes, Justice O'Connor.

QUESTION: -- as within he scope of the remedy?

MR. SHAW: Yes, Justice O'Connor, although it is certainly a question of discretion, and I understand the concerns of the Court.

QUESTION: I just wonder whether it might not be an abuse of discretion to go that far. It as nothing to do with student achievement or anything else.

MR. SHAW: No, Justice O'Connor, but --

QUESTION: I'm just quite amazed.

MR. SHAW: -- it does have something to do with the day-to-day operations of the district, and the day-to-day operations of the district with respect to its ability to carry out the desegregation plan.

The findings, again, of the district court are that as a consequence of segregation this is a district that was woefully underfunded. It was devastated as a consequence of the violation. Now, the ability of the school district to raise funds as a consequence of this Court's order with respect to the tax decision that was before it is one that limits those funds to actually desegregation purposes, ultimately.

QUESTION: What is there in this record that shows the inability of the school district to make its own determinations as to how to allocate its existing revenues for salaries?

MR. SHAW: Justice Kennedy --

QUESTION: Why does it need supervision for that?

MR. SHAW: As you phrase the question, I believe, that is to say, as I understand your question, it's what is that says that the court must be involved in the school district's decisions as to how to allocate salary --

QUESTION: Yes.

MR. SHAW: -- a budget for salary? There is no rule of law that per se requires the school district to do that. However, because of the woefully limited funds available to this school district as a consequence of the effects of the violation and the limitations on the money that the school district is able to raise with respect to the necessity to fund its share of the desegregation components of the remedy, it just doesn't leave much money available.

QUESTION: Why are funds limited as a result of the violation?

MR. SHAW: Because --

QUESTION: Because they've all been spent?

MR. SHAW: Because the State has insisted, understandably, that the school district fund its share of the remedy, and it has not always been able to do that, so the court has applied principles of joint and several liability, but the fact is that there's just been limited ability of the school district at this point to fund the remedy.

QUESTION: Thank you, Mr. Shaw.

Mr. Bender.

ORAL ARGUMENT OF PAUL BENDER ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS

MR. BENDER: Thank you, Mr. Chief Justice, and may it please the Court:

The United States believes that the decision of the court of appeals in this case was correct, and that it should be affirmed.

We agree, Justice Scalia, that there's no power in the courts to require this district to achieve educational performance that's equal to or greater than the surrounding suburban districts, or, indeed, equal or greater than any other district in the country, or any arbitrary level or chosen level of achievement, but there is a power and, indeed, a responsibility, to require the district to remove the lingering effects of the unconstitutional segregation that were present in this district for a long time.

There are students who, in 1982 -- in 1992, when the district court order in this case was issued, had spent several years in a segregated situation in this school district. Those years -- assume, for example, that there were the first 4 or 5 years of the student's academic career --

QUESTION: Hypothetically the students should now be, what, high school seniors?

MR. BENDER: They could be in tenth grade.

The remedies in this case, the Milliken II remedies in this case, were not fully implemented until the late 1980's. The district court decided that they should be implemented in 1985. They're not implemented overnight.

So you could have a student in tenth grade now who spent the first 4 or 5 years of her years in school in a segregated system that the district court has found suffered tremendously from the effects of segregation.

QUESTION: In a different school. I mean, I take it, in Kansas City people don't go to the same school from kindergarten through high school senior.

MR. BENDER: I don't think that they do, right. It was probably in a different school. But if a child in the first 4 or 5 years of school did not learn basic reading skills, basic reading comprehension, basic communication skills, basic concepts of number values, basic study skills, you cannot expect a student like that to immediately start achieving at the level the student would have achieved if the student had not suffered those deprivations instantly.

QUESTION: Is all of this funding just directed at those upper grades so that it sort of follows this hypothetical student from the fifth grade, where she was when the disparities were eliminated, up to the sixth grade? It's my impression this money is going to the whole system --

MR. BENDER: Right.

QUESTION: -- including those people who have never been under a segregated --

MR. BENDER: I believe that that's true, and certainly the State can bring before the district court an effort, a claim to have some or all of those remedies reduced or eliminated in some of the lower grades, but there's a procedure that this Court has set out in which the State should do that, and the State has not followed that procedure in this case.

If the State followed that procedure, it would be required 1) to show that it has implemented in good faith the remedies that the Court required. Secondly, it would have to show that those remedies have removed the vestiges of segregation to the extent practicable. Not that it has removed them altogether, but to the extent practicable.

QUESTION: How does it make that showing?

MR. BENDER: There are lots of different ways to make that showing. For example, the district court found -- in making its finding that the segregation had had the result of impairing academic performance, the district court relied on a number of factors.

Some were test scores, comparing test scores in this district with test scores in other districts of a similar nature except that they had not suffered segregation. Other things that would indicate that there was low academic performance would be graduation rates, attendance rates, dropout rates, things like that.

The -- I would think that the first thing you would want to do is compare -- let's take this hypothetical tenth grade student now, or tenth grade students in general in the system, and see whether their performance, general academic performance, is comparable with students in systems in other cities of similar size and demographics that had not suffered from the terrible deprivations that segregation caused here. That would be one step.

QUESTION: That sounds to me like a fascinating sociological inquiry, but I submit that it is highly questionable as to whether or not it is a practicable measure for the court to use to determine how quickly it can return the control of this district to the elected and democratically responsible authorities.

MR. BENDER: It seems to me that it could be quite practical, Justice Kennedy.

For example, suppose you saw that the students in the tenth grade in the Kansas City schools had roughly the same academic achievement as the students in the tenth grade in the Philadelphia public schools, or the New York public schools. That would be a very powerful indication that the effects of the segregation were no longer present, because the students in Philadelphia had not suffered that de jure segregation.

QUESTION: Is that the comparison that was made? I thought it was against average national standards.

MR. BENDER: You mean originally, when the district court --

QUESTION: Right. What was the district court looking to?

MR. BENDER: I think the district court compared originally in 1985 --

QUESTION: Below national norms, is what the district court -- below national norms at many grade levels. Well, I mean, half the country is below national norms.

MR. BENDER: National norms would not be -- right. National norms are not the right test. I think if you're going to do that kind of comparison, which is one way, and I think if the comparison showed that they were comparable, that they were about the same, you could easily conclude that the results of segregation had been gone.

Another thing you can look at is, you would expect that if the educational performance was lower in 1985, and then --

QUESTION: But jurisdiction does not remain until the results of segregation are gone. It remains until all practicable remedies to accomplish that have been gone, and that, it seems to me, you have not addressed.

MR. BENDER: Well, one way you could show that, for example, is after the remedies were started you would look at test scores, or other indicia like attendance rates, for the next 2 years, and see what happened to them.

You might find that they went up and then leveled off. I think that would be a very powerful indication that you had done as much as was practicable to do. You might find that they never went up at all, which again I think would show that you had done as much as was practicable to do, because these remedies were the remedies which were the state-of-the-art educational remedies at the time.

But you might find that they have been going up every year, and that that progress continues, and if you found that, and in addition found that the level of progress was below the level in Philadelphia, or San Francisco, or New York, that would be powerful evidence that the remedies should not be stopped, because the effects of the segregation were still there.

QUESTION: Don't you think the amount of money spent is one element of practicability?

MR. BENDER: Absolutely.

QUESTION: At $1.3 billion here already.

MR. BENDER: A lot of that was spent on capital improvements which are not repetitive expenses, but I agree with you completely that the level of expenditure necessary is relevant.

QUESTION: And what about the length of time that you withhold this school district from democratic control --

MR. BENDER: Also relevant.

QUESTION: -- when it's managed by a Federal district judge?

MR. BENDER: All of those things are relevant, but those things are exactly what the district court should be asked to consider, and those are the issues on which the State has the burden of proof in showing that it has done whatever it is practicable to do. What are the additional costs of continuing these remedies for a couple of years?

QUESTION: Well, don't you think those things were before the district court, the amount of money that had been spent and the length of time? Are you suggesting that wasn't presented, or argued, or --

MR. BENDER: No. The amount of money that had been spent up until then was before the district court, but I don't think that the State presented to the district court any of the evidence I'm talking about, or how these remedies worked.

In fact, the State has said here today that that's a totally irrelevant question. If the State maintained that position below, then it did not make that showing.

QUESTION: So you say it must present --

MR. BENDER: That's where the thing starts.

QUESTION: You say it must present this evidence in order to resist an order requiring it to increase teacher salaries? That's exactly where we are.

MR. BENDER: We -- the Government has not taken a position on the teacher salary issue, which does not have national importance. As far as we know this is the only district in which that issue has arisen.

But to the extent that teacher salaries are relevant, and I think to some extent they are, to the quality of the education program, and to the extent that it's necessary to keep teacher salaries at a certain minimum level to ensure that you're getting decent teachers into the system, yes, the State would have to show that if you lowered the teacher salaries, if you withdrew the support for teacher salaries, then you wouldn't go back to the educational deficiencies that you had before.

QUESTION: But on the salary issue it seemed like it was just a very convenient way for the school district and the labor union to get what they wanted without going through collective bargaining, and there are some very unattractive features --

MR. BENDER: I agree --

QUESTION: -- to what the district court did here, and the State is just left holding the bag because the school district and the labor union make a deal with the court that the court's going to set the salaries.

MR. BENDER: But I think, Justice --

QUESTION: It can't be relevant.

MR. BENDER: -- O'Connor, it's very important for this Court to make clear that you have to follow an orderly procedure in withdrawing from those remedies, that you don't do that by making factual assertions in an appellate court or in the Supreme Court that you -- you don't do that by making assertions that you don't back up with proof.

The way to do that is to go to the district court and say, look, we don't think that we should have to be having all-day kindergartens any more, because the students coming into the school now have not been harmed by the prior segregation.

QUESTION: Thank you, Mr. Bender.

MR. BENDER: Thank you.

CHIEF JUSTICE REHNQUIST: The case is submitted.

(Whereupon, at 11:02 a.m., the case in the above-entitled matter was submitted.)