IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

CHINYERE JENKINS, et al.,			)
 
							 )

		Plaintiffs,				)

							 )

	v.						)   Case No. 77-0420-CV-W-1

							 )

THE STATE OF MISSOURI, et al.,		   )

						         )

		Defendants.			    )

PLAINTIFFS' MOTION

FOR STAY PENDING APPEAL

The Jenkins Class of plaintiff schoolchildren move this Court to enter an order pursuant to Fed. R. Civ. P. 62(c) staying, pending appeal, that portion of its Order entered November 17, 1999 (Jenkins v. School District of Kansas City, Missouri, 1999 WL 1124585 (W.D. Mo. November 17, 1999), dismissing this case with prejudice.

SUGGESTIONS IN SUPPORT OF MOTION

I. Introduction

The Jenkins Class intends within the time allotted by rule to file its notice of appeal from that portion of this court's Order entered November 17, 1999, dismissing this case with prejudice. Pending the outcome of that appeal, including any settlement of this case, plaintiffs move this Court to restore the status quo ante and thus permit the resumption of the Court's monitoring and enforcement of the defendants' efforts to achieve their obligations under the court-ordered goals that remained after the Order entered in this case on March 27, 1997. Jenkins v. State of Missouri, 959 F. Supp. 1151 (W.D. Mo. 1997), aff'd, Jenkins v. State of Missouri, 122 F.3d 588 (8th Cir. 1997). Plaintiffs will not appeal that portion of the Order of November 17, 1999 rejecting the motion of the School District of Kansas City, Missouri ("KCMSD") with respect to the accreditation issue and the Class seeks no relief with respect thereto.

II. Applicable Standards for Granting a Stay

A party seeking a stay in this circuit must establish that (1) it will likely prevail on the merits in further litigation; (2) it will suffer irreparable injury unless the stay is granted; (3) no substantial harm will come to other interested parties; and, (4) the stay will do no harm to the public interest. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981). See also Jenkins v. State of Missouri, 965 F. Supp. 1295, 1297 (W.D. Mo. 1997).

III. Applicable Facts

The facts in this nearly twenty-three year old case are complex and familiar to the courts, have been recited frequently ­ most recently by this Court in the Order of November 17, 1999 ­ by the courts called upon to resolve disputed issues in this case, and will not be repeated at length here by plaintiffs except as they relate immediately to the issues raised by this motion for a stay pending appeal.

On January 28, 1999, this Court in an Order, Doc. No. 4760, dismissed the State of Missouri defendants and set a hearing "beginning the first week of January 2000 to determine whether the KCMSD has attained unitary status or taken all practicable steps in attempting to do so." Id. at 7. At a status conference on August 24, 1999, the parties expressed considerable doubt as to whether the KCMSD could meet its burden of proving either achievement of its court-ordered objectives or exhaustion of practicable efforts to do so. Tr. (August 24, 1999) at 4-6; 18-19 (Benson); 10-14; 21 (Delaney). The Court denied Plaintiffs' request for a continuance of the January, 2000 unitary status hearing but suggested that it would entertain such a motion from the KCMSD at a later date when the 1999 student achievement data had been reviewed more carefully by the KCMSD. Id. at 24-25.

On November 2, 1999, at the conclusion of the accreditation hearing, the KCMSD announced by counsel that the school board had "voted unanimously to seek a continuance" of the unitary status hearing and had also authorized counsel to agree to a "continuation of the monitoring committee in its current configuration until the end of the year when [the KCMSD] would come into court and review where the district is at that time." Tr. (November 2, 1999) at 479. It is reasonable to infer that the KCMSD itself did not believe it could marshal the evidence necessary to prove its entitlement to a declaration of unitary status and it would not be reasonable to infer otherwise.

There is no evidence that the KCMSD has attained its student achievement goal. The data from the Spring 1999 standardized tests had not, as of November 17, 1999, and still have not, been disaggregated by race, analyzed, or in any way viewed by any party to suggest that the KCMSD has accomplished its student achievement goals.

Similarly, there is no evidence that the KCMSD has taken all practicable steps to reach its achievement goals. What evidence exists suggests the opposite. The KCMSD adopted in 1997 and the Court approved a Transition Plan that included steps to improve achievement and the Court's own Monitoring Committee has for over two years concentrated its efforts on means to encourage or require the KCMSD to adopt and implement measures designed to fulfill the requirements of the Transition Plan and to improve teaching and learning. If implemented, these measures were intended by the Monitoring Committee to move the KCMSD toward its court-ordered achievement goals.

Toward these goals, the KCMSD in 1997 adopted a core curriculum but since then has failed to achieve substantial implementation of it in KCMSD classrooms. Tr. (November 1, 1999) at 15 (Dr. John Murphy: "The District has to be able to implement its core curriculum. That has not been done to the satisfaction of the DMC or to anyone else, to my knowledge, to this point in time."); Desegregation Monitoring Committee's Report to the Court of October 23, 1999 (hereinafter "1999 DMC Report") at 2 (". . . Demps, Jr., is moving forward to implement the core curriculum . . ."); 3 (". . . KCMSD was underway in implementing the above stated areas. . . . implementation had begun. . ."; "Will the Plaintiffs' counsel . . . in the Spring of 2000 find that the curriculum has been fully implemented by each teacher?"); Appendix A (October 19, 1999 Memorandum to Walter-Mack from Murphy requesting submission by November 2, 1999 of timeline for implementation of Professional Development Plan, Accountability Plan, and Core Curriculum). The KCMSD filed with this Court in January, 1999 a plan to reform professional development but has, as yet, failed to implement that plan to any significant degree. Tr. (November 1, 1999) at 16 (Murphy: ". . . so that the professional development plan can kick into place and address those deficiencies."), 38 (Murphy: "Staff development has quite a bit of work to be done yet."); 1999 DMC Report at 3-4 ("Will the American Federation of Teachers be able to say . . . that the KCMSD did not implement its Professional Development Plan thereby providing the cover for an unacceptable level of student achievement . . . Will the Plaintiffs' counsel . . . find that classroom practices provide for active learners . . . Will the school principals have been involved in a comprehensive professional development effort to eqiup them with the skills needed . . .."); Appendix A. The KCMSD agreed in its Transition Plan to adopt and implement an Accountability Plan but it has done neither. Tr. (November 1, 1999) at 16 (Murphy: "There has to be an accountability plan that is going to hold everyone accountable and identify specific decisions . . .."); 1999 DMC Report at 3-4 ("Will the KCMSD have been able to determine if students in a particular teacher's classroom made an acceptable level of academic achievement growth . . . What will be the consequence for the teachers who students have not made an acceptable level of academic growth . . . Will good teachers have been recognized and rewarded . . .."); Appendix A. These failures of the KCMSD have led the court's own Monitoring Committee to complain that the KCMSD was making inadequate progress toward unitary status. Id. at 2 ("great strides" necessary for KCMSD to be declared unitary); Tr. at 38 (Murphy: None of these programs are fully implemented . . . "And a lack of leadership and a lack of focus have frustrated us. . . . And we have been attempting to prod the district to get those things done.").

No party in this case disputes that (1) the low levels of achievement can be raised substantially, (2) the achievement gap between black and white students can be reduced to meet the court-ordered goal, (3) the educational reforms mandated by the court-approved transition plan are practicable to implement, or that (4) if implemented, those reforms will over time result in substantial, if not complete, attainment of the student achievement gains needed for the KCMSD to attain unitary status.

Similarly, there is no evidence in the record that the KCMSD has substantially met its court-ordered obligations with respect to the capital improvement, transportation, budget, and other goals set forth in the March 27, 1997 order. Although the KCMSD has made significant progress toward meeting all of those goals except the critical student achievement goal, there is no evidence in the record that those goals have actually been met or that the KCMSD has attempted all practicable means to achieve them.

Nonetheless, this Court on November 17, 1999, sua sponte, dismissed this school desegregation case. Jenkins, 1999 WL 1124585 at *24. The case was dismissed with no prior notice to the parties, without an opportunity for the parties to offer evidence or make arguments on the issues, and without facts of record to support findings of fact made by the Court.

IV. A Stay Should Issue

This Court should issue a stay pending appeal and restore the status quo ante to the conditions governing the remedial and monitoring activities of the parties as they existed just before the Order of November 17, 1999 was entered.

a. The Plaintiffs Will Likely Succeed on Appeal

In its Order of November 17, 1999, this Court made a number of fact findings without benefit of formal evidence, without a hearing, and without entertaining the arguments of the parties. This failure to hold a hearing will likely be reversed on appeal. Further, the fact findings made by the Court will not stand the scrutiny of trial on remand because the KCMSD has not yet attained unitary status. For these reasons, the plaintiffs are likely to succeed on the merits and this Court should stay the effect of its dismissal of this case pending appeal.

This Court made several fact findings critical to the issues in this case. It found that the "KCMSD has made significant progress toward eliminating the academic achievement gap and is on track to continue its progress." Jenkins, 1999 WL 1124585 at *23. There is no evidence of that progress before the Court. The "performance gap" issue is to be measured by standardized test scores. Jenkins, 959 F.Supp. at 1165. No test scores for years subsequent to 1997 have been offered into evidence and no recent scores have even been disaggregated by race. On information and belief, such standardized test scores as exist show no significant progress toward closing the gap and, contrary to the Court's finding, show some widening of that gap in some grades.

The Court also found that the "KCMSD has eliminated the vestiges of prior segregation to the extent practicable." Jenkins, 1999 WL 1124585 at *23. This critical finding of fact was also made without benefit of formal evidence while the facts known to the parties are just the contrary. The vestiges of prior segregation included "inferior education". Jenkins v. State of Missouri, 593 F.Supp. 1485, 1492 (W.D. Mo. 1984). The goal for eliminating that vestige was narrowed after the Supreme Court noted that the KCMSD deserved a "rather precise statement of [its] obligations" under the remedial provisions of a desegregation order. Jenkins v. State of Missouri, 515 U.S. 70, 101 (1995) (Jenkins III). The academic achievement goal was then focused upon closing the academic performance gap between black and white students by an amount specifically determined by the Court to be the lingering effect of prior segregation. Jenkins, 959 F.Supp. at 1165. The narrowing and focusing of this educational objective was not appealed and has become the law of the case.

Since 1997, the parties and the Court's Monitoring Committee have agreed on the practicable means for attaining that objective: implementation of the new curriculum, reform of classroom practices, new assessment tools for classroom use, professional development to help teachers and principals master the new curriculum and implement new classroom practices, and personnel and evaluation policies ­ including accountability practices ­ that support and insure these reforms. Tr. (November 1, 1999) at 15-16 (Murphy: "The transition plan calls for an intense focus on the academic program in the district. It very cleraly spells out those steps that need to be implemented in order to overcome the academic deficiencies that have existed in the past and continue to exist in the school district. The district has to be able to implement its core curriculum . . . to be able to put together an assessment program . . . There has to be an accountability plan . . . so that the staff development plan can kick into place . . .."; 32-33 (Murphy: "The [instructional] remedial goals are the most important goals that the district has to be able to accomplish . . .."), 34 (Murphy: If the district is unable to meet those [instructional] remedial goals they will not be able claim they have done "all that is practical in terms of meeting the needs of their children . . .."). See also Tr. at 201-202 (Demps: agrees with Murphy that academic reforms were the most critical tasks facing the KCMSD and considers accountability, assessment, professional development, classroom practices, and curriculum implementation to be parts of that academic reform, along with personnel decisions based upon contribution to teaching and learning.). There is no evidence before the Court, however, that the KCMSD has actually fully implemented any of these reforms. See supra at 4-5. To the contrary, while the new curriculum was adopted for pilot schools in 1996 and formally adopted for the KCMSD as a whole in 1997, to date it remains largely an unused document in most KCMSD classrooms. Tr. at 198 (Demps: ". . . some are are using it, but my understanding is not all, certainly not enough, because it is not all, in my opinion."); at 361 (Joyner: KCMSD has struggled in its effort to implement its curriculum). While the KCMSD was repeatedly ordered to develop a plan for reformed Professional Development, the ultimate plan had to be largely written for the KCMSD when the KCMSD could not produce it on its own. That plan was filed with the Court in January, 1999 but has not been implemented. Tr. (November 2, 1999) at 208 (Demps: "That profession [sic] development piece has not moved very far since I have come on board."); see also supra at 4-5. Classrooms teaching practices have not been reformed. New classroom assessment practices are used effectively in only a few KCMSD classrooms and the KCMSD has not been able, nearly two years after its original DMC deadline of March 31, 1998, to complete an Accountability Plan, much less implement it. Tr. at 38 (Murphy: none of the programs are fully implemented). Each one of these reforms is "practicable" but none have been implemented to the extent practicable and, consequently, the agreed upon practicable means for achieving the KCMSD's remaining obligations under its remedial responsibilities have not been carried out.

There is thus no factual basis for the Court's finding that the KCMSD has eliminated the vestiges of segregation to the extent practicable and on that issue plaintiffs are likely to prevail on appeal.

This Court also concluded as a matter of law that the "sole question in this case is whether the KCMSD is currently providing an equal education to its students, regardless of their race." Jenkins, 1999 WL 1124585 at * 24. If the Court meant by that conclusion that the sole question was whether the KCMSD was or is intentionally discriminating against students on the basis of their race, that is an incorrect statement of the applicable law. The sole remaining legal question is whether the KCMSD has removed the vestiges of prior segregation to the extent practicable. Jenkins III, 505 U.S. at 101; Jenkins, 959 F.Supp. at 1155. It was error for the Court to view the facts of this complex case through that erroneous prism of the applicable law. If, on the other hand, the Court meant by that conclusion that the sole question was whether the KCMSD is currently providing an equal education to its students, regardless of their race, by operating a school district free of the vestiges of prior unlawful segregation, that sole legal question asks the factual question discussed above, on which there is no evidence before the Court. There is thus no basis for the Court to rely on any answer that sole remaining question to dismiss this case.

On these issues, central to the few unresolved goals of the KCMSD before it attains unitary status, plaintiffs are likely to succeed on appeal and this Court should stay the effect of its dismissal of this case.

b. Plaintiffs Will Suffer Irreparable Injury

The premature loss of constitutionally required remedial measures irreparably injures the students for whose those measures were ordered. Unless a stay is issued in this case, the plaintiff schoolchildren will suffer the loss of constitutionally required remedial measures and that is itself an irreparable injury. See e.g. Alexander v. Holmes, 396 U.S. 19 (1969); Swann v. Charlotte-Mecklenburg Board of Ed., 399 U.S. 926 (1971); and cases cited in Morgan v. Kerrigan, 523 F.2d 917, 921 (1st Cir. 1975 (per curiam)).

Without the protection of the Court's enforcement of the KCMSD's remedial obligations, and without the monitoring of the Court's own Monitoring Committee, there is no reasonable basis for the Court's optimism that the KCMSD will finally, after three years of bungled attempts and missed opportunities, implement the educational measures all parties agree are necessary if the KCMSD is to achieve unitary status by closing the achievement gap between black and white students. Without this enforcement and monitoring, unfortunately so often required in the past, there can be no assurances that the KCMSD will now do what it has not done in two decades under eighteen superintendents: implement effectively the court-ordered remedial measures, now narrowly focused but still not attained.

For each week or month that passes without the oversight and protection of the federal court, the students will suffer the loss of benefits intended to flow to them and the loss of assurances that when those benefits are not attained, there is recourse to this Court. If the KCMSD has not eliminated to the extent practicable the remaining educational vestiges, the students suffer irreparable injury when the remedy intended for their benefit is prematurely ended. Since tens of thousands of present and future KCMSD students will daily suffer the loss of the constitutional protections to which they are entitled, this Court should stay the effect of its dismissal order.

c. No Substantial Harm Will Come To Other Parties

No substantial harm will flow to other interested parties if this Court stays the effect of its dismissal order. In fact, if Plaintiffs succeed on the merits, no harm whatsoever will be suffered by the other interested parties, the KCMSD and the teachers' union. They would only be required to continue the discharge of their remedial obligations under existing court orders, not a legally cognizable harm to them. If, however, the stay is ordered and later withdrawn, there would still be no substantial harm to the KCMSD or the teachers' union. They would only bear the insubstantial harm of having had to cooperate with the Court's monitoring and enforcement of its remedial orders. That cooperation is nothing significant; it is no more than pursuing the actual implementation of the educational reforms that now exist, primarily, only on paper. The inconvenience of having had to cooperate with the Court's oversight of tasks presently underway is not substantial, especially when compared to the truly substantial benefit to the students of having the protection of the Court's oversight to assure that the agreed upon tasks are actually carried out effectively and with dispatch.

For these reasons, the harm that would come to interested parties from a stay pending appeal is insubstantial and insufficient when considered in connection with the other Dataphase factors to justify not granting a stay of the effects of the dismissal order.

d. No Harm to the Public Interest

It is recognized that the public has an interest in the early return to local control of its public school district. The public, however, has no interest in the continuation of constitutional violations. For a public school district to operate a system with the vestiges of prior unlawful race discrimination ­ where those vestiges may be eliminated by the implementation of specific, ordered, and practicable remedial measures ­ is a constitutional violation in which the public has no interest.

In fact, the public has an interest in continued court supervision of the KCMSD to assure that those remaining vestiges are eliminated to the extent practicable and at the earliest possible date. Not granting the stay may serve only to prolong the constitutional violation. Where Plaintiffs are likely to prevail on the central issue of whether the KCMSD has eliminated the remaining vestiges of race segregation to the extent practicable, there is no public interest in delaying the return of court supervised enforcement of the KCMSD's efforts to achieve unitary status. For that reason, this Court should stay the effect of its dismissal order.

Respectfully submitted,

ARTHUR BENSON & ASSOCIATES

By______________________________

Arthur A. Benson II #21107

Jamie Kathryn Lansford #31133

4006 Central Avenue (Zip for Courier: 64111)

P.O. Box 119007

Kansas City, Missouri 64171-9007

(816) 531-6565

(816) 531-6688 (telefacsimile)

abenson@bensonlaw.com

jlansford@bensonlaw.com

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing was faxed and mailed, postage prepaid, this 15th day of December, 1999 to:

Mr. Michael Delaney Mr. Brian Wood

Mr. Mark Thornhill Roher & Wood

Spencer Fane Britt & Browne 3100 Broadway

Suite 1400, 1000 Walnut Kansas City, Missouri 64111

Kansas City, Missouri 64106

Mr. Taylor Fields

Mr. Charles Brown

Fields & Brown

2544 Holmes

Kansas City, Missouri 64108

__________________________________

Jamie Kathryn Lansford