in the
United States Court of Appeals
for the Eighth Circuit
Nos. 00-1048 and 00-1288
CHINYERE JENKINS, et al.,
Appellants,
v.
THE SCHOOL DISTRICT OF KANSAS CITY, MISSOURI, et al.,
Appellees.
Appeal from the United States District Court
Western District of Missouri, Western Division
The Honorable Dean Whipple, District Judge
APPELLANTS' REPLY BRIEF
ARTHUR BENSON & ASSOCIATES
Arthur A. Benson II Mo. Bar. #21107 Jamie Kathryn Lansford Mo. Bar #31133
4006 Central Avenue (Courier Zip: 64111)
P.O. Box 119007
Kansas City, Missouri 64171-9007
(816) 531-6565
(816) 531-6688 (telefacsimile)
Attorneys for Chinyere Jenkins, et al.
TABLE OF CONTENTS
Pages
TABLE OF CONTENTS i
TABLE OF AUTHORITIES ii
SUPPLEMENTAL STATEMENT OF FACTS 1
ARGUMENT 8
Introduction 8
I. The KCMSD Has Not Met Its Remedial Obligations 8
II. The District Court Erred in Not Gathering Evidence
on the Issues 10
III. There is No Basis for Substituting the State of Missouri for the District Court in Monitoring Implementation of Ordered
Educational Plans 14
IV. The KCMSD is Correct as to the "Ultimate Inquiry" 16
CONCLUSION 18
Pages
Cases
Alberti v. Klevenhagen, 46 F.3d 1347 (5th Cir. 1995) 11-12, 13
Freeman v. Pitts, 503 U.S. 467 (1992) 5
Green v. County School Board, 391 U.S. 430, 435 (1968) 2
Inmates of the Suffolk County Jail, et al. v. Kearney, et al.,
734 F.Supp. 561 (D.Mass. 1990) 11
Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo. 1997),
aff'd, 122 F.3d 588 (8th Cir. 1997) (Jenkins XIV) 3
Jenkins v. Missouri, 639 F. Supp. 19 (W.D.Mo. 1985),
aff'd and modified in part, 807 F.2d 657 (8th Cir. 186) (en banc),
cert. denied, 484 U.S. 816 (Jenkins I). 1
Jenkins v. Missouri, 593 F.Supp. 1485 (W.D.Mo. 1984) 1
Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988),
cert. denied in part, 490 U.S. 1034 (1989), and aff'd in part,
495 U.S. 33 (1990); vacated, 864 F.2d 1454 (8th Cir. 1989) 1
Missouri v. Jenkins, 495 U.S. 33 (1990) (Jenkins I) 1
Missouri v. Jenkins, 515 U.S. 70 (1995) (Jenkins III) 2, 3
Pasadena Bd. of Education v. Spangler, 427 U.S. 424 (1976) 5
In re Pearson, 990 F.2d 653 (1st Cir. 1993) 13-14
Rufo v. Inmates of Suffock County Jail, 502 U.S. 366 (1992) 10-11, 12
United States v. City of Miami, 2 F.3d 1497 (11th Cir. 1993) 13
United States v. State of Texas, 158 F.3d 299 (5th Cir. 1998) 13
Williams v. Edwards, 87 F.3d 126 (5th Cir. 1996) 13
Rules
Fed. R. App. P. 28 (j) 10
Orders
Jenkins, et al. v. The School District of Kansas City, Missouri, et al.,
No. 77-0420-CV-W-1 (W.D. Mo.)
Order, March 25, 1997 2, 3, 4, 6
Order, May 27, 1999 9
SUPPLEMENTAL STATEMENT OF FACTS
Early History
This case was tried in 1983-84 and the district court, the Hon. Russell G. Clark presiding, entered its liability findings in September, 1984. Jenkins v. Missouri, 593 F.Supp. 1485 (W.D.Mo. 1984). The first remedy order was entered in June, 1985, and this Court en banc affirmed both as to liability and the initial remedial orders. Jenkins v. Missouri, 639 F.Supp. 19 (W.D.Mo. 1985), aff'd and modified in part, 807 F.2d 657 (8th Cir. 1986) (en banc), cert. denied, 484 U.S. 816 (Jenkins I). After additional remedial orders by the district court, including orders affecting taxes to fund the remedies, in 1988, this Court affirmed the scope of the remedies and the property tax order but reversed as to the income tax order. Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988), cert. denied in part, 490 U.S. 1034 (1989), and aff'd in part, 495 U.S. 33 (1990); vacated, 864 F.2d 1454 (8th Cir. 1989). In 1990, the United States Supreme Court affirmed this Court as to the property tax order. Missouri v. Jenkins, 495 U.S. 33 (1990).
Between 1985 and 1995, the School District of Kansas City, Missouri (KCMSD), overseen by the district court with the assistance of a Desegregation Monitoring Committee (DMC), set about implementing the components of the remedial decrees. Those components consisted of four sets of measures to remedy effects or vestiges specifically found by the district court and affirmed by this Court. Those vestiges were found to have been caused either by the pre-1954 racial segregation mandated by the State of Missouri and implemented by the KCMSD or by the post-1954 failures of the State and the KCMSD to eliminate those vestiges. The four sets of measures were based on the so-called Green factors, Green v. County School Board, 391 U.S. 430, 435 (1968), and included a) magnet schools to eliminate racial isolation of students; b) capital improvements to address the facility issues; c) local taxes and state funding to remedy the funding issues; and d) educational improvements to address the inferior quality of education vestige identified by the district court.
Recent Proceedings
In 1995, the Supreme Court held that the remedial measures exceeded the scope of the constitutional violation and required the narrowing of KCMSD remedy. Missouri v. Jenkins, 515 U.S. 70 (1995). In so holding, the Supreme Court noted that the KCMSD was entitled to a "precise statement of its remedial obligations". Id., at 101. On remand, in April, 1996, the State of Missouri moved for declaration of unitary status. While the parties conducted discovery in preparation for hearing on the motion, in June, 1996, the KCMSD settled with the State of Missouri and those parties sought district court approval of the settlement. In early 1997, the district court conducted an extensive evidentiary hearing on both the settlement and the State's unitary status motion. On March 25, 1997, the district court, approved the KCMSD-State settlement, granted in part and denied in part the State's motion for unitary status(1), and narrowed the remaining remedial goals for the KCMSD. Jenkins v. Missouri, 959 F.Supp. 1151 (W.D.Mo. 1997). Judge Clark then recused himself from further involvement in this case and the matter was reassigned to the Honorable Dean Whipple. J.App. at 4-5, Doc. No. 4456.
The narrowed goals established in the March 25, 1997 order continued to guide remedial efforts until the case was dismissed sua sponte by the district court on November 17, 1999. Between the date this matter was assigned to Judge Whipple and the date the case was dismissed, the district court held no plenary hearings. A short evidentiary hearing was held in June, 1997 to consider the fate of fewer than twenty (20) African-American students transferring at State expense to the Missouri City School District at the time of Jenkins III and in November, 1999 on the KCMSD's motion to enjoin the State from stripping the KCMSD of its state accreditation. J.App. at 837.
Before the dismissal, no party filed a motion for unitary status; no hearing was held on unitary status issues; no reports of the DMC to the district court suggested fact findings on unitary status issues; and, what was in the record suggested that the monitoring committee and the KCMSD itself did not believe that the KCMSD would be able to establish unitary status at the unitary status hearing the scheduled for January, 2000. See Appellants' Br. at 8-9 (citing J.App. at 829-30, 832-33). The KCMSD, just days before the dismissal of this case asked the district court to postpone the unitary status hearing and to continue Monitoring Committee oversight in the interim. See Appellants' Br. at 9 (citing J.App. at 962, 479, 43). That request was mooted by the sua sponte dismissal of this case.
Status of Remedial Goals
At the time of the dismissal, the KCMSD remained under the obligation of the March 25, 1997 order that had narrowed and focused its remedial obligations. Those obligations include the racial isolation/magnet schools issue, budget, facility, and transportation, and quality of education matters. The Class has represented to the district court and to this Court that some of those issues are near resolution, others have been or may be considerably narrowed, and only the educational improvements measures remain significantly unattained.
1. Issues Near Resolution. The KCMSD has apparently completed its facility improvement measures. After the panel decision in this appeal, under the guidance of the Hon. Fernando Gaitan, Jr., the parties established a process by which the KCMSD would produce documents so that Class counsel could conduct a due diligence inquiry to determine if in fact the KCMSD had accomplished its facility improvement goals, as was suspected but not established. It was anticipated that the parties would stipulate to partial unitary status as to the facilities issue upon review of the documentation. The KCMSD had not produced the documents when this Court granted en banc review and the mandate was recalled.
2. Issues Narrowed. Also operating under the guidance of Judge Gaitan, the Class had informally agreed that the KCMSD was entitled to partial unitary status as to all aspects of the budget and transportation issues except as to the extent to which budget and transportation were necessarily intertwined with racial isolation and quality of education issues. Freeman v. Pitts, 503 U.S. 467, 489 (1992) ("Today, we make explicit the rationale that was central in [Pasadena Bd. of Education v.] Spangler[, 427 U.S. 424, 438 (1976)]. A federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control."). The schoolchildren were preparing to stipulate that the KCMSD was entitled to such a declaration of partial unitary status.
The racial isolation goal was also being narrowed. The Class advised the district court and the parties that it had some suggestions as to how racial isolation could be reduced or how recent increases in racial isolation could be stabilized or reversed, at least in middle and high schools. It was anticipated by the district court and the parties that a schedule would be established for the KCMSD to produce data on student enrollment by race and by school; for the Class to analyze those data and make recommendations to the KCMSD and for the KCMSD to respond; for a hearing on any recommendations not adopted by the KCMSD to determine if they were practicable; and to enter appropriate orders by the end of this summer.
3. Remedial Goal Not Attained. The March 25, 1997 order provided the KCMSD with the precise statement of its remedial obligations as required by the Supreme Court. That obligation was to reduce the gap in achievement between black and white students by 2.6 Normal Curve Equivalents (NCEs) as measured by the Iowa Test of Basic Skills. That remained the KCMSD's obligation - and it is not disputed that the KCMSD had not fulfilled it - when this case was dismissed on November 17, 1999. After the panel decision in this appeal, under Judge Gaitan's guidance a schedule was being prepared pursuant to which the KCMSD would move for unitary status as to this issue - presumably asserting not that it had improved educational achievement or closed the achievement gap - but that it had done everything practicable to meet its educational obligations under the court's remedial orders. The Class was preparing to refute these assertions, arguing that the KCMSD's own plans, if effectively implemented, were practicable and would cause the KCMSD to meet its educational goals. It was anticipated that a hearing on the educational improvement component of the remedy would be held before the end of this year. When the mandate was recalled by this Court, the efforts described above to resolve or narrow the remaining unitary status issues were suspended pending en banc review.
Introduction
The KCMSD does not dispute that it has failed to meet its specific court-ordered remedial obligations. It does not argue that educational achievement has been improved overall. It does not argue that the achievement gap between black and white students has been narrowed at all, much less by the modest amount ordered by the district court in 1997. Further, the KCMSD does not even argue that it has even done everything practicable to meet its goals. Instead, it argues, KCMSD Brief at 37, that it is entitled to a declaration of unitary status because it has implemented orders in good faith, has complied with court orders, and continued judicial control is unnecessary. These arguments fail on both the facts and the law.
Since the district court did not have a motion for unitary status before it, or any evidence on unitary status issues, and since it held no hearing on those issues and had no findings from its Monitoring Committee, the record, such as it is, does not support either the KCMSD's arguments or the district court's dismissal.
I. The KCMSD Has Not Met Its Remedial Obligations
The KCMSD has not complied with the court's orders. Complying with the orders was and is practicable and, if the KCMSD implemented the ordered educational plans, to the extent practicable, it would meet its ordered obligations.
In approving the educational portions of the Transition Plan that was to guide the KCMSD in its transition to unitary status, the district court warned the KCMSD that it should expect the Court's scrutiny "concerning implementation of its plans." J.App. at 175 (Order, May 27, 1999). In fact, many of the constituent components of the Transition Plan have not been implemented, and the KCMSD does not assert otherwise. Specifically, the KCMSD has not implemented its new curriculum throughout the district; has not done so largely because its teachers have not adopted the classroom practice reforms required by the curriculum; the teachers have not made those reforms because they have not been provided with the required professional development; and, the KCMSD has not implemented the educational reforms in significant part because it has yet to complete the required accountability plan. In addition, the assessment plan has only partially been implemented and the unimplemented portions are not the subject of KCMSD actions at this time. Appellants' Brief at 9-13. There is thus no basis for the argument that the KCMSD has complied with the court's orders.
The KCMSD argues that the district court was "fully aware that the plans had not been fully implemented; there was no need for a hearing to demonstrate it." KCMSD Brief at 38. That argument evades the central factual issue: whether it was practicable for the KCMSD to implement the plans. It also evades the central legal issue: can the KCMSD be declared unitary if it has failed to carry out the court orders to implement these practicable educational reforms.
If the KCMSD has failed to carry out court-ordered reforms that are practicable, it cannot be declared unitary. There is no evidence in the record to suggest, and the district court in dismissing the case did not suggest, that implementation of the educational plans was not practicable. Thus, the failure to implement them is unexcused and not a basis for ending judicial supervision of their implementation.
II. The District Court Erred in Not Gathering Evidence on the Issues
Neither the KCMSD's brief nor its Rule 28(j) letter of May 10, 2000 provide a legal basis for the sua sponte dismissal of this case. The district, although the case was assigned to it for three years, had held only two evidentiary hearings, neither on unitary status issues in general nor even on the narrow educational plan issues. Even its own Monitoring Committee had not made unitary status findings, and had in fact only recently informed the court that the KCMSD was not progressing toward unitary status. J.App. at 1492 (DMC Report at 2 ("great strides" necessary for KCMSD to be declared unitary).
The cases cited by the KCMSD in its Rule 28(j) letter, support the position that a hearing or some alternative form of contested fact finding was necessary.
Rufo v. Inmates of Suffock County Jail, 502 U.S. 366, 393 (1992) does indeed hold that a district court may revise injunctive decree in response to significant change in the facts or the law, as KCMSD indicates. However, KCMSD ignores the crucial distinction between Rufo and this case: in Rufo, the district court was presented with a motion by the Suffolk County Sheriff to allow modification of the consent decree prohibiting double-celling of inmates to the extent of 197 of 316 cells. The Sheriff argued that there had been a clarification of the law (because of the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520 (1979)) and a change in the operative facts (continuing increases in detainee population). While the district court's decision does not recite that there was a hearing on the Sheriff's motion, the decision reveals that statistical evidence and legal argument directed at the supporting the respective parties' positions were considered by the district court. Inmates of the Suffolk County Jail, et al. v. Kearney, et al., 734 F.Supp. 561, 564 (D.Mass. 1990) (reciting statistical evidence considered and citing the parties' exhibits and Plaintiffs' Memorandum of Law). The Court itself held only that "a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree and that the proposed modification is suitably tailored to the changed circumstance." Rufo, 502 U.S. at 393.
Alberti v. Klevenhagen, 46 F.3d 1347 (5th Cir. 1995) is also distinguishable and the holding recited by KCMSD is not unqualified as implied by KCMSD. After declaring that a district court has the ability, "regardless of the parties' silence or inertia, to modify a decree when the court sees that the factual circumstances or the law underlying that decree has changed," the Fifth Circuit also acknowledged that the power to modify a consent decree "is not unfettered," Alberti, 46 F.3d at 1366, and invoked the Rufo standard (a modification should occur when it is established that a significant change in circumstances warrants revision of the decree, and when relating to the "vindication of a constitutional right," must be "suitably tailored to the changed circumstance", Rufo, 502 U.S. at 383 and n. 7). The actions of the district court in Alberti are also distinguishable from those of the district court here. In Alberti, the monitors entered proposed findings of fact which were adopted by the district court after it considered the parties' objections. Alberti, 46 F.3d at 1366. Unlike Alberti, where the monitors found compliance with the consent judgment's requirements, id., here, the district court ignored the evidence of its own monitors who expressed the view that the KCMSD had not met the remedial goal nor had it exhausted all practical steps to obtain the goal. And most importantly, the Alberti court insisted, based on Rufo, that before the court may alter the consent decree upon a showing of a significant change of circumstance, there must be such a showing. Id. at 1368-69 (citing Rufo, 502 U.S. at 383-85). The one modification which was contrary to the monitors' findings was reversed. Id.
United States v. State of Texas, 158 F.3d 299 (5th Cir. 1998) plows no new legal ground in repeating the Fifth Circuit's earlier pronouncements that modification is authorized when "it becomes manifest that here has been a change in the facts or the underlying law that gave rise to the decree." The court cites Williams v. Edwards, 87 F.3d 126, 132 (5th Cir. 1996), in which there were proceedings which led to the district court's 1995 Reinstatement Order and the district court gave the parties notice that it was considering the action ultimately taken and considered expert opinion and responses on the issue, and Alberti. The case is also readily distinguishable because there, the district court held a hearing in which evidence was introduced and testimony of lay and expert witnesses was taken.
United States v. City of Miami, 2 F.3d 1497 (11th Cir. 1993) is also distinguishable. There, the district court was presented with a motion to terminate or modify a consent decree which contended that the decree had served its purpose. The motion was opposed and, unlike here, the district court held a hearing on the motion. In addition, the court of appeals noted that there had been "no specific judicial inquiry as to whether there is an 'evidentiary or legal basis' for termination or modification of the consent decree," and remanded for a determination of whether the decree's basic purpose had been achieved. Id. at 1508.
Finally, In re Pearson, 990 F.2d 653 (1st Cir. 1993), also is not analogous to this case. There, the district court merely appointed a special master to analyze the continuing efficacy of injunctive relief.
III. There is No Basis for Substituting the State of Missouri for the District Court in Monitoring Implementation of Ordered Educational Plans
The KCMSD defends the district court's holding that federal court supervision is no longer necessary because henceforth the State of Missouri's Department of Elementary and Secondary Education (DESE) will oversee future educational reforms in the KCMSD by arguing that failure to improve overall achievement will result in the dissolution of the school district. KCMSD Brief at 20-21. The State of Missouri, however, does not have an identity of interests sufficient to warrant substituting it for court oversight and conflicts of interest undermine protection of the court-ordered remedies for the schoolchildren.
While the State has threatened draconian measures if the KCMSD fails within two years to meet certain achievement objectives, there is no assurance that the State will, in fact, carry out its threat. If DESE hesitates to assume the burdens and risks of day-to-day management of the KCMSD before the court-ordered objectives are achieved, the schoolchildren will have been left with unfulfilled promises of educational improvement. At most, the recent State sanctions, if viewed generously as an alternative means of achieving the court-ordered educational goals, are only an argument for lightened court supervision, not abandoned court supervision, until the State actually effects the improvements it seeks.
Furthermore, the State's educational goals and the court-ordered goals, while parallel, are not identical. The State has no articulated or specific goal of reducing the educational performance gap between African-American and white students while that is central to the narrowly-focused KCMSD goal. Dismissing the case on the unspoken and unsubstantiated hope that the State will address this sensitive issue is justified by neither the record in this case nor by any legal principles.
Reliance on the new role the State may play in educational issues also neglects the non-educational goals of the court-ordered remedy that remain unfulfilled. The KCMSD has not been declared unitary as to the racial isolation vestige and DESE has no interest in effecting, and certainly no demonstrated predisposition to effect, improved racial balance in KCMSD schools. There remain numerous steps that the KCMSD can, and should, take to reduce racial isolation in its schools. The sua sponte declaration of unitary status came three years after a trial on that issue resulted in a denial of unitary status on that issue. There has been no identified change of circumstance since then and the dismissal deprived the schoolchildren of the remedial benefit to which they are entitled. The KCMSD must continue to take practicable steps to reduce racial isolation and the State of Missouri has no interest, shown on the record in this case or elsewhere, in taking over that responsibility.
Finally, even as the KCMSD argues in this Court that the State's accreditation-stripping action demonstrates the State's commitment to educational improvement, the KCMSD has pending in a Missouri state court a petition seeking to overturn that same action. The KCMSD thus argues the benefit of Missouri's de-accreditation action in one court while becrying it in another and seeking to set it aside. Should the KCMSD succeed, either judicially or otherwise, in setting aside or postponing de-accreditation, there will truly be no oversight left to see that the students at last obtain the remedial relief to which they are entitled.
IV. The KCMSD is Correct as to the "Ultimate Inquiry"
The KCMSD notes that "[t]he ultimate inquiry is whether the District has eliminated the vestige of discrimination (i.e. the 2.6 NCEs) to the extent practicable - not completely". KCMSD Brief at 28 (bold and italics in original). Indeed, that is correct, and it has been the Class's argument all along. There is, however, nothing in the record to support a finding that the KCMSD has done everything practicable. In fact, a close reading of KCMSD's brief reveals that it is careful not to argue that it has in fact done everything practicable to close the black/white achievement gap. The KCMSD cannot argue that it is hopeless to achieve this important goal, both because it is factually not hopeless and because it would be politically inconvenient to admit it if it were.
Instead, KCMSD seeks to deflect the argument. It says it is not practicable to implement educational reforms "fully" because educational reforms are forever evolving. It does not follow from this inevitable evolution, however, that the KCMSD is excused from implementing any or even most aspects of existing plans. Where the KCMSD has not even adopted - three years after it was ordered to do so - any accountability plan of even the most basic iteration, it may not be excused because some later iteration may more "fully" embody the KCMSD's accountability goals. Similarly, the KCMSD, now admittedly one year behind in implementing the professional development plan (only one year after its adoption), should not be excused from court oversight of its failures in this regard because at some point in the future it may amend its plan.
Where, after three years of delays in implementing the components of the Transition Plan, the KCMSD has still accomplished little or no implementation, it is disingenuous for it to complain that it should not be required to implement those plans because they may someday be modified. As the District moves to implement its educational plans, the degree of court supervision should be adjusted accordingly, and then ended. When, as now, however, the KCMSD has no record of significant implementation of its court-ordered educational reform plans, it is premature to leave the District to its own devices and the schoolchildren to defend their remedial rights alone.
CONCLUSION
For the foregoing reasons, this Court should reverse the orders of the district court dismissing this cause of action and remand the case for future proceedings, including addressing at an early date the remaining non-educational unitary status issues, determining whether it is practicable for the KCMSD to implement the court-ordered educational reforms, and, if it is, to determine the appropriate level of court supervision to assure that the school district moves steadily and swiftly toward unitary status.
Respectfully submitted,
ARTHUR BENSON & ASSOCIATES
By_______________________________ Arthur A. Benson II #21107
Jamie Kathryn Lansford #31133
P.O. Box 119007
4006 Central (Courier Zip: 64111)
Kansas City, Missouri 64171-9007
(816) 531-6565
(816) 531-6688 (telefacsimile)
Attorneys for Appellants
Chinyere Jenkins, et al.
May 12, 2000
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with the type and volume limitations of Rule 32(a)(7)(B). It contains no more than 7,000 words of text (specifically, containing 3,981 words). It was prepared using Word Perfect 8.0 for Windows. The enclosed floppy disc also complies with 8th Cir. R. 28A(d) in that it is virus free.
_____________________________
Attorney for Appellants
Chinyere Jenkins, et al.
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
CHINYERE JENKINS, et al., )
)
Plaintiffs-Appellants, )
)
v. ) Case No. 00-1048
)
THE SCHOOL DISTRICT OF )
KANSAS CITY, MISSOURI, et al., )
)
Defendants-Appellees. )
CERTIFICATE OF SERVICE
I hereby certify that on this 12th day of May, 2000, the original and twenty-two copies of Appellants' Reply Brief were hand delivered to the Clerk of the Court for filing, and two copies of Appellants' Reply Brief were served by hand delivery on:
Mr. Michael Delaney Mr. Taylor Fields
Mr. Mark Thornhill Mr. Charles Brown
Mr. Michael Leitch Mr. David Naatz
Spencer Fane Britt & Browne Fields & Brown
Suite 1400, 1000 Walnut 2544 Holmes
Kansas City, Missouri 64106 Kansas City, Missouri 64108
Mr. Brian Wood
Roher & Wood
3100 Broadway, Suite 202
Kansas City, Missouri 64111
______________________________
Jamie Kathryn Lansford
1. The State is no longer a party in this case.