KALIMA JENKINS, ET AL., PETITIONERS V. THE STATE OF MISSOURI, ET
   AL.

   KANSAS CITY, MISSOURI SCHOOL DISTRICT, ET AL., PETITIONERS V. THE
STATE OF MISSOURI, ET AL.

   No. 86-1717 and 86-1718

   In the Supreme Court of the United States

   October Term, 1987

   On Petitions for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   Memorandum for the Federal Respondents in Opposition

   Petitioners contend that the court of appeals misinterpreted
Milliken v. Bradley, 418 U.S. 717 (1974), when it affirmed the
district court's denial of interdistrict relief in this school
desegregation case.  As the questions presented in the petitions are
directed primarily at parties other than the federal respondents, this
memorandum will explain first why there is no issue involving the
federal respondents that warrants this Court's review and, second, why
the questions on which petitioners seek certiorari are not properly
presented on the record in this case.

   1. a. In its early stages, this case involved a broad-based
challenge to alleged racial segregation in the public schools in the
Kansas City, Missouri School District (KCMSD), and, more generally, in
the Kansas City metropolitan area.  Claims of interdistrict and
intradistrict violations were asserted against the KCMSD, suburban
school districts (SSDs), the State of Missouri, and a host of local,
state and federal agencies and officials.  /1/ Following a lengthy
presentation of evidence by the plaintiff (64 trial days, more than
140 witnesses, 2,100 exhibits, and 10,000 designated pages of
depositions (see Pet. App. 12a)), the district court found no
discrimination on the part of the SSDs and no lingering effects in
those districts of prior discriminatory actions, and it therefore
rejected petitioners' claims for interdistrict relief.  /2/ Following
the presentation of further evidence, the court found that racial
segregation continued to exist within the district (KCMSD) in which
the individual petitioners attend school and accordingly ordered
substantial intradistrict relief against that district and the State
of Missouri.  /3/ The district court dismissed all claims against HUD.

   The court made several findings that specifically negate any
liability on the part of HUD for segregation in the public schools
within the KCMSD district.  The court found:  (1) "(i)f (the Federal
Housing Authority's) appraisal practices prior to 1950 (which, it was
claimed, considered the impact of racially restrictive covenants on
market prices) had any effect on present racial housing patterns, it
would, at most, be de minim(i)s" (Pet. App. 570a);  (2) HUD "acted in
a reasonable and responsive manner" in working out cooperation
agreements with the Kansas City Land Clearance for Redevelopment
Authority and the City of Kansas City, Missouri, to stop
discrimination, permit HUD to monitor housing referrals, and increase
referrals of minorities to housing locations outside the inner city
(id. at 573a);  (3) "the location of the public housing was in
accordance with the congressional acts and * * * HUD's monitoring of
the program was neither arbitrary nor capricious and * * * the
compliance agreement entered into between (the Housing Authority of
Kansas City) and HUD was reasonable" (id. at 578a);  (4) "HUD followed
a balanced housing policy and attempted to insure that assisted
housing located in the inner city area was balanced by assisted
housing projects in the suburban areas (ibid.);  and (5) "(t)here was
no evidence in the case that the practices of HUD in site selection
and approval for federally subsidized multi-family housing had a
substantial effect upon the racial makeup of schools within the KCMSD"
(id. at 580a).  The district court therefore held that HUD had no
liability (id. at 616a).

   b. An evenly divided court of appeals, sitting en banc, affirmed
the portion of the district court's judgment that dismissed all claims
against HUD, noting that the petitioners did not "assert that the
district court's underlying factual findings are clearly erroneous"
(Pet. App. 111a).  /4/

   The court of appeals found that petitioners had presented no basis
for concluding that the district court had erred as a matter of law in
its judgment in favor of HUD (Pet. App. 114a), and accordingly, held
that HUD had no liability.  The court of appeals also affirmed the
district court's denial of interdistrict relief as to all defendants
and affirmed, as modified, the award of intradistrict relief against
the KCMSD and the State of Missouri.

   2. Neither petition raises a question challenging the findings and
holdings of both lower courts that HUD has no liability in this case.
Although the petition in No. 86-1717 makes several references to HUD,
/5/ it does not challenge the factual findings, in which both courts
below concurred, that support the dismissal of all claims against HUD.
 Nor, for that matter, does the petition in No. 86-1717 contend that
HUD caused any illegal segregation that may presently exist in the
local public schools.  /6/

   In addition, petitioners do not challenge the district court's
finding, affirmed by the court of appeals, that "(t)here was no
evidence in the case that the practices of HUD in site selection and
approval for federally subsidized multi-family housing had a
substantial effect upon the racial makeup of schools within the KCMSD"
(Pet. App. 580a).  See Goodman v. Lukens Steel Co., No. 85-1626 (June
19, 1987), slip op. 8;  Graver Mfg. Co. v. Linde Co., 336 U.S. 271,
275 (1949).  At all events, the key factual findings in this case, on
which both lower courts agreed, are well supported by the record.  The
HUD-assisted housing program at issue here did not even begin until
1969 and the overwhelming majority of HUD-assisted multifamily housing
units within KCMSD were developed subsequent to 1970 -- after the
KCMSD had already become a majority black school district (7 C.A. App.
2229).  The small number of families using the mortgage assistance
offered as part of that program belies the notion that HUD had a
significant impact on the racial composition of the schools (Tr.
12,371, 12,062-12,063).  /7/

   3. As the dismissal of HUD from this case is a wholly factbound
matter that petitioners do not challenge, HUD has no continuing role
in this case.  Indeed, HUD did not take a position in the lower courts
on the questions that petitioners raise here, which focus on the court
of appeals' reliance on Milliken v. Bradley in affirming the denial of
interdistrict relief.  /8/ Although HUD's participation in the case is
unrelated to the issues raised in the petitions, those issues are of
interest to the United States and we will therefore comment briefly on
whether further review is warranted with respect to the lower courts'
denial of interdistrict relief against other respondents in this case.

   a. In our view, the record in this case presents no occasion for
this Court to consider whether the court of appeals miscontrued
Milliken v. Bradley.  As a threshold matter, petitioners' effort to
press their claim for interdistrict relief against the other
respondents suffers from problems similar to those that beset
petitioners' claims against HUD.  In a case in which the lower courts'
unchallenged findings show no interdistrict violation and no present
significant interdistrict effects flowing from any intradistrict
violation (see Pet. App. 65a-66a), the prospect of an interdistrict
remedy simply does not arise.

   Petitioners argue that Milliken v. Bradley does not require as a
predicate to the imposition of an interdistrict desegregation remedy
against a given school district that that school district be found to
have committed an independent constitutional violation.  Building on
this premise, petitioners contend that they are entitled to
interdistrict relief against the suburban school districts based on
constitutional violations by the State.  But even if all of
petitioners' legal contentions were accepted, it would not change the
judgment in this case.  The court of appeals concluded, based on the
district court's unchallenged factual findings, that the SSDs had not
themselves committed constitutional violations (Pet. App. 63a);  that
"all SSDs met their obligation to operate a unitary school system
within a maximum of four years after Brown (v. Board of Education, 347
U.S. 483 (1954)), most of them doing so within one year" (Pet. App.
47a-48a);  and that the intradistrict violation by the State had no
present effect in the SSDs, a conclusion based on "the district
court's findings that within at most four years after Brown I, any
vestiges of the dual school systems that may have existed in the SSDs
(prior to 1954) had been eliminated" (id. at 54a;  see id. at 66a).
/9/

   The court of appeals identified the feature of petitioners' theory
that remains its fatal weakness in this Court, viz., that "(t)he
arguments of (petitioners in No. 86-1717) run contrary to the facts
found by the district court" (Pet. App. 57a (footnote omitted)).
Having concluded that the district court's findings were not clearly
erroneous, the plurality of the court of appeals, relying on Anderson
v. City of Bessemer City, 470 U.S. 564, 573-575 (1985), properly
refused to "substitute its judgment for that of the district court"
(Pet. App. 58a).  See City of Pleasant Grove v. United States, No.
85-1244 (Jan. 21, 1987), slip op. 9-10;  Maine v. Taylor, No. 85-62
(June 23, 1986), slip op. 13-15.  Given the factual record on which
the case comes before this court, it is plain that the interdistrict
remedial questions posed by petitioners would not be reached in
disposing of this case.  It is similarly clear that Milliken v.
Bradley is controlling.

   b. Petitioners' principal quarrel (see 86-1717 Pet. 11, 27-28)
appears to be with the district court's statement (Pet. App. 285a)
that "(t)he linchpin of an interdistrict case, as declared by the
Supreme Court, is whether there has been a racially discriminatory act
by each district that substantially caused segregation in another
district." Petitioners seek to contrast that statement with this
Court's statement in Milliken v. Bradley, 418 U.S. at 744-745, that,
as a necessary predicate for setting aside the boundaries of "separate
and autonomous school districts * * * it must be shown that racially
discriminatory acts of the state or local school districts, or of a
single school district have been a substantial cause of interdistrict
segregation" (see 86-1717 Pet. 34-35).

   Petitioners' emphasis on the particular formulation of the issue by
the district court is of little consequence at this stage in the
litigation.  As the case comes to this Court, the immediate subject of
scrutiny is not the opinion of the district court, but the judgment of
the court of appeals.  And the plurality opinion of the court of
appeals employed a legal standard that was faithfully drawn from
Milliken v. Bradley.  In describing the standard for interdistrict
relief, the court of appeals perceived that "'it must be shown that
racially discriminatory acts of the state or local school districts,
or of a single school district have been a substantial cause of
interdistrict segregation'" (Pet. App. 33a (quoting Milliken v.
Bradley, 418 U.S. at 745)).  Having articulated that unexceptionable
legal standard, the court of appeals proceeded to apply that standard
to the unchallenged facts found by the district court.  At the
completion of that process, the court of appeals concluded that there
was ample basis to hold that this case fits comfortably within the
facts of Milliken v. Bradley and does not vary from the facts of
Milliken v. Bradley in the ways that petitioners suggest.  See Pet.
App. 65a-66a, 74a, 91a-93a.

   The court of appeals' decision denying interdistrict relief was
based on the district court's finding "that none of the alleged
discriminatory actions committed by the State or the federal
defendants had caused any significant current interdistrict
segregation" (Pet. App. 13a-14a) and on "specific findings that negate
the existence of significant interdistrict current effects in the
SSDs" (id. at 74a (footnote omitted);  see id. at 371a-493a (district
court's individualized findings concerning each SSD)).  The court of
appeals concluded that the district court's findings "pose an
insuperable barrier to granting interdistrict relief" (id. at 74a) and
that "even accepting the * * * arguments  of petitioners in No.
86-1717  that the district court misread Milliken by improperly
limiting its inquiry solely to whether the SSDs were guilty of
committing constitutional violations, * * * the factual findings of
the district court effectively foreclose findings of interdistrict
effect in the SSDs flowing from constitutional violations with respect
to housing that may have occurred in KCMSD" (id. at 90a-91a (footnote
omitted)).  It is these findings, rather than any legal conclusion
reached below, that "foreclose   efforts to require the SSDs to be
subject to the claim for interdistrict relief" (id. at 91a-92a).

   By focusing on a statement excerpted from the district court's
extensive discussion without also challenging the findings of fact,
petitioners are at bottom raising a debating point that can have no
effect on the disposition of this case.  In short, petitioners' effort
runs counter to the well-established proposition that "(t)his Court
'reviews judgments, not statements in opinions'" (California v.
Rooney, No. 85-1835 (June 23, 1987) (per curiam), slip op. 3 (quoting
Black v. Cutter Laboratories, 351 U.S. 292, 297 (1956)).  Where, as in
this case, the language petitioners target is not even in the opinion
of the court of appeals, but in the opinion of the district court, the
call for an exercise of this Court's certiorari jurisdiction is all
the more attenuated.

   4. This Court has instructed that federal courts are "required to
tailor 'the scope of the remedy' to fit 9the nature and extent of the
constitutional violation.'" Hills v. Gautreaux, 425 U.S. 284, 293-294
(1976) (quoting Milliken v. Bradley, 418 U.S. at 744).  Accord, e.g.,
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16
(1971).  Mindful of the "'fundamental limitations on the remedial
powers of the federal courts,'" this Court has stated that "(t)hose
powers could be exercised only on the basis of a violation of the law
and could extend no farther than required by the nature and extent of
that violation" (General Building Contractors Ass'n v. Pennsylvania,
458 U.S. 375, 399 (1982) (quoting Hills v. Gautreaux, 425 U.S. at
293)).  See also Milliken v. Bradley, 433 U.S. 267, 282 (1977);
Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429
U.S. 252, 264-271 (1977).

   In contrast to these tenets, petitioners would ask this Court to
address novel and complex issues of interdistrict remedies without due
regard to the record.  Under principles announced in 1974 in Milliken
v. Bradley, the absence of any significant present segregative effects
outside of the KCMSD precludes an interdistrict remedy in this case
for the State's intradistrict constitutional violations.  418 U.S. at
744-745, 748;  see Hills v. Gautreaux, 425 U.S. at 293-294.  Further
clarification of that point of law is unnecessary, as is any review of
the court of appeals' application of the law to the unchallenged facts
of this case.  Since this case ultimately does not present a sound
basis for considering questions of interdistrict remedies -- the only
questions petitioners would place before this Court -- the infirmities
in the petitions are best recognized at the present stage in the
proceedings.

   It is therefore respectfully submitted that the petitions for a
writ of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   JULY 1987

   /1/ The complaints named as defendants the United States
Departments of Housing and Urban Development (HUD), Health, Education
and Welfare (HEW), and Transportation (DOT), and the Secretary of HUD.
 DOT was dismissed by stipulation before trial.  HEW was dismissed by
the district court during the trial.  Neither DOT nor HEW participated
in proceedings in the court of appeals.  Of the federal parties
originally involved in this case, only HUD and the Secretary of HUD
participated in the full trial and in the proceedings in the court of
appeals.  The claims against HUD and the Secretary were dismissed
following trial, that dismissal was affirmed by the court of appeals,
and HUD and the Secretary (hereinafter referred to collectively as
HUD) are thus the only federal respondents in this Court.

   /2/ The district court stated that there had been no
racially-motivated manipulation of district boundaries ("(l)ack of
proof of discriminatory intent in the establishment or changing of any
school district boundary lines" (Pet. App. 287a, 294a));  that it was
unpersuaded "that any vestiges or significant effects of the pre-1954
dual school system remain in any of the SSDs" (id. at 315a);  "that
each of the defendant suburban school districts disestablished its
pre-1954 school system with deliberate speed and that all vestiges of
that system have long since ceased to exist" (id. at 316a);  that
neither the State's pre-1948 enforcement of racially restrictive
covenants nor any other housing-related action had a significant
current interdistrict effect (id. at 354a-369a).

   /3/ The court's conclusion that intradistrict segregation exists
within the KCMSD was based on its findings that the State and the
KCMSD had maintained a dual system within that school district prior
to 1954, that "vestiges of the State's dual school system still
linger() in the KCMSD" (Pet. App. 605a), and that the State and the
KCMSD had not fulfilled their "obligation to disestablish that system"
(id. at 604a).

   /4/ In a separate opinion, Judge Arnold dissented only "from those
portions of the lead opinion concerning suburban school district (SSD)
participation in a remedy" (Pet. App. 141a);  "(i)n all other
respects," Judge Arnold "concur(red) in the judgment" (ibid.).  That
statement of his position would have made Judge Arnold an additional
vote to affirm HUD's dismissal, resulting in a 5-3 vote in favor of
affirmance of the dismissal of the claims against HUD.  However,
because Judge Arnold's opinion also expressed "concerns" over the
trial court's analysis of the claims against HUD (id. at 163a n.10),
the plurality opinion deemed the court to be evenly divided on the
disposition of the claims against HUD (see id. at 8a-9a).

   /5/ Only the petitioners in No. 86-1717 raised in the court of
appeals the district court's dismissal of HUD;  petitioners in No.
85-1718 did not challenge below the dismissal of HUD and they do not
do so in this Court.

   With respect to the petition in No. 86-1717, it is clear that the
first question presented -- whether interdistrict relief was properly
denied "on the ground that the State and not the surrounding school
districts caused * * * segregation" (Pet. ii) -- does not relate to
HUD.  The second question presented -- whether interdistrict relief is
warranted against "Missouri and the other defendants" that
"intentionally segregated black and white children into separate
school districts prior to 1954 and took no steps thereafter to remedy
that interdistrict segregation" where there are alleged to be
"continuing areawide effects of the defendants' post-1954 segregative
conduct" (id. at ii-iii) -- does not on its face appear to include
HUD, which had no part in the pre-1954 intentional segregation in
Missouri schools.

   If petitioners did intend to embrace HUD within the scope of the
phrase "other defendants," the second question still would not present
an issue involving HUD that warrants this Court's review.  As we
discuss in the text, petitioners did not challenge in the court of
appeals, and they do not challenge in this Court, the findings of fact
that exonerate HUD;  nor do petitioners challenge the judgments of
both lower courts that hold HUD not to be liable.

   /6/ Petitioners' inability to establish in the district court that
HUD's actions contributed to segregation in the schools in the Kansas
City metropolitan area is fatal to any claim against HUD.  Even
petitioners' expert testified (Tr. 14,891-14,893) that by 1954 the
KCMSD schools were bound on a course to become heavily black no matter
what desegregation actions were taken.  Moreover, Hud played no role
in policies that were identified by the witnesses as contributing
significantly to segregation of the Kansas City schools;  KCMSD zone
boundary changes that had the effect of perpetuating the prior system
of de jure segregated schools (Tr. 6798-6799, 6869-6870);  KCMSD's
liberal transfer policy that permitted students to attend schools of
their choice outside the attendance zone in which they lived (Tr.
3024-3028, 6604, 6973;  24 C.A. App. 7368);  KCMSD's policy of opening
newly constructed or annexed schools in the late 1950's and 1960's as
either all-black or all-white schools (7 C.A. App. 1992-2020);
curriculum changes at Paseo High School (Tr. 6654, 15,155);  the urban
riots of April 1968 (Tr. 6851, 6942);  and increases in neighborhood
crime (Tr. 6804, 6851, 6949, 12,119).

   /7/ Similarly, the total number of urban renewal relocations by the
Land Clearance for Redevelopment Authority represented less than .2%
of the overall turnovers in the Kansas City area between 1950 and 1980
(Tr. 20,368-20,369).

   /8/ The district court dismissed the claim against HUD in an order
(Pet. App. 518a-617a) that was entirely separate from the opinion in
which the court dealt with questions of interdistrict remedies against
the SSDs (id. at 274a-517a);  it is the latter opinion that is
targeted by the petitions for a writ of certiorari.

   /9/ This latter point was reiterated in the district court's order
of May 11, 1987, ruling on motions for awards of attorney's fees.  In
that order (at 13), the district court stated that "(i)t is undisputed
that the (petitioners) failed in their attempt to prove an
interdistrict liability against the State of Missouri."

   Even though petitioners "presented no evidence that any of the SSDs
acted to cause segregation" (Pet. App. 352a-353a), the district court
considered and rejected (id. at 303a, 352a-371a) each of petitioners'
theories for including the SSDs in an interdistrict remedy based on
the "effects" of the State's intradistrict violation.  The district
court also rejected petitioners' contention that the SSDs could be
included in an interdistrict remedy as "agents" of the State (id. at
284a);  the court concluded (id. at 290a) in light of the history and
practice of local control over schools in Missouri that "the SSDs are
more autonomous than those discussed in Milliken and numerous other
desegregation cases."