                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 _____________

                                  No. 97-2619
                                 _____________

Chinyere Jenkins, by her next friend,  *
Joi Jenkins; Nicholas Paul Winchester- *
Rabelier, by his next friend, Paula    *
Winchester; Margo Vaughn-Bey, by       *
her next friend, Franklin Vaughn-Bey;  *
Nicholas C. Light, by his next friend, *
Marian Light; Stephon D. Jackson, by   *
his next friend, B. J. Jones; Travis N.*
Peter, by his next friend, Debora      *
Chadd-Peter; Leland Guess, by his next *
friend, Sharon Guess;                  *
                                       *
       Plaintiffs - Appellees          *   Appeal from the United States
                                       *   District Court for the
American Federation of Teachers,       *   Western District of Missouri.
Local 691,                             *
                                       *
       Intervenor                      *
                                       *
       v.                              *
                                       *
State of Missouri; Mel Carnahan,       *
Governor of the State of Missouri; Bob *
Holden, Treasurer of the State of      *
Missouri; Missouri State Board of      *
Education; Peter Hershend, Member of *
the Missouri State Board of Education; *
Thomas R. Davis, Member of the         *
Missouri State Board of Education;     *
Robert E. Bartman, Commissioner of     *
Education of the State of Missouri;     *
Gary D. Cunningham, Member of the       *
Missouri State Board of Education;      *
Rice Pete Burns, Member of the          *
Missouri State Board of Education;      *
Sharon M. Williams, Member of the       *
Missouri State Board of Education;      *
Betty Preston, Member of the Missouri   *
State Board of Education; Jacquelline   *
Wellington, Member of the Missouri      *
State Board of Education; Russell       *
Thompson, Member of the Missouri        *
State Board of Education;               *
                                        *
       Defendants - Appellees           *
                                        *
School District of Kansas City; Terry   *
M. Riley, Member of the Board of        *
Directors; Lance Loewenstein, Member *
of the Board of Directors; Marilyn      *
Simmons, Member of the Board of         *
Directors; Sandy Aguire Mayer,          *
Member of the Board of Directors;       *
John A. Rios, Member of the Board of *
Directors; Darwin Curls, Member of      *
the Board of Directors, Patricia Kurtz, *
Member of the Board of Directors;       *
Edward J. Newsome, Member of the        *
Board of Directors; Henry D. Williams, *
Superintendent; John W. Still, Member *
of the Board of Directors,              *
                                        *
       Defendants - Appellants.         *




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                                   _____________

                             Submitted: January 14, 1998
                                 Filed: October 19, 1998
                                  _____________

Before McMILLIAN, HEANEY, and JOHN R. GIBSON, Circuit Judges.
                          _____________

JOHN R. GIBSON, Circuit Judge.

       The Kansas City, Missouri School District appeals from an order of the district
court of March 25, 1997, and particularly two statements in the opinion, one that it was
not the court's duty to insure funding for the KCMSD, and one denying that there was
a financial vestige that must be remedied. The funding problems that are of particular
concern to the KCMSD have been resolved by a state constitutional amendment
authorizing the board to set the levy at $4.95. See H.J.R. No. 9, 89th General
Assembly (Mo. 1997) (approved by the voters April 7, 1998) (amending Mo. Const.
Art. 10 § 11(g) to permit school boards whose operating levy for 1995 was set by court
order to set subsequent tax rates at any level lower than the 1995 rate (which was $4.96
for the KCMSD) without voter approval). The uncertainty over the availability of these
funds seems to generate KCMSD's primary argument. The second concern is that a
second piece of legislation which could provide additional funding for the district,
Senate Bill 781, is contingent on final settlement of the St. Louis desegregation case on
or before March 15, 1999. The KCMSD states that this issue is not yet ripe and
suggests holding it in abeyance until the contingency has been resolved. We believe
our best course is to dismiss the appeal.

       The district court's order of March 25, 1997, approved a settlement agreement
between the KCMSD and the State of Missouri, and denied the State's claim that the
district was unitary. Jenkins v. Missouri, 959 F. Supp. 1151 (W.D. Mo. 1997). We
affirmed in Jenkins v. Missouri, 122 F.3d 588 (8th Cir. 1997) (Jenkins XIV). The

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district court's decision was a lengthy one and made a detailed review of the long
history of this litigation. The district court denied that there was a financial vestige as
such and stated further that it was not the court's duty to insure funding for the
KCMSD. 959 F. Supp. at 1169.

       A number of issues that have been raised by the parties make some response
desirable, however. We must first say that when an issue is raised by the KCMSD that
points to two specific statements in the district court's opinion, both of which are made
in the court's chain of reasoning for an ultimate holding, we are inclined to view such
arguments as essentially asking for an advisory opinion, and in the context of the
statements made in this case, comments on our earlier decisions. We need not restate
that which was plainly enunciated in Jenkins v. Missouri, 855 F.2d 1296 (8th Cir.
1989) (Jenkins II), aff'd in part and rev'd in part, 495 U.S. 33 (1990). We think it
suffices to say that our decisions heretofore have been clear as to identification of the
vestiges of the segregated school system, and we need refer only to Jenkins II, 855
F.2d at 1305. The answers to the questions raised by the KCMSD can be found in
those decisions and we need not repeat what has been said before.

        It should be further stated, as is so evident, that while a settlement has been
reached between KCMSD and the State of Missouri that will ultimately, if all
conditions are satisfied, result in a final order that the district is unitary with respect to
claims asserted against the State, there is no issue before the court as to whether the
district is unitary with respect to the claims asserted against it by the Jenkins class. The
KCMSD and the Jenkins class remain subject to the orders of the district court and this
court until there has been a final determination that the district is unitary. Any
determination that the district is unitary must, of course, be made in accordance with
those standards we recognized in Jenkins XIV, 122 F.3d at 595-97, and the teachings
of the Supreme Court we discussed in that opinion. Until that time, when ripe issues
are raised that affect the concerns of the KCMSD or the Jenkins Class with respect to


                                             -4-
future funding issues, they may be presented to the district court in the first instance,
and any aggrieved party may appeal from any order of that court.
        The essence of the KCMSD's argument is that it is on the brink of a funding
crisis because it is uncertain whether it will have sufficient funds to retire the bonds
issued to fund the school construction projects ordered in this case. After this appeal
was argued, the voters of Missouri by referendum adopted a constitutional amendment
that allows the board of the KCMSD to set the tax rate at an amount up to $4.95 for
$100 assessed valuation. See H.J.R. No. 9. It is now evident that KCMSD can raise
funds to retire the bonds. The only contingency would be that the KCMSD board
would fail or refuse to vote such levies, which is strictly hypothetical on the record
before us. We believe that the KCMSD is asking for an advisory opinion concerning
its predicament should certain facts come about. This is a thicket we should not enter.
See Preiser v. NewKirk, 422 U.S. 395, 401-03 (1975) (court lacks power to render
advisory opinion); Gopher Oil Co. v. Bunker, 84 F. 3d 1047, 1050-51 (8th Cir. 1996)
(ripeness requires a live dispute, not speculative threat).

        The documents authorizing the issuance of the bonds have declared the intention
to satisfy the obligation to make payments out of the "increase in the property tax levy
of $1.95 per $100 assessed valuation." This was a portion of the additional property
taxes that were made possible through the procedure suggested by this court and
approved by the Supreme Court, namely that the school board was authorized to set a
levy necessary to fund the operation of the school district, including the desegregation
funding; insofar as state laws would interfere with the adoption of said levy, the district
court could enter injunctive orders to set aside the enforcement of such state laws or
constitutional provisions. See Jenkins II, 855 F.2d at 1314, aff'd in relevant part, 495
U.S. 33 (1990). The new constitutional amendment now gives the KCMSD board
authority to maintain that part of its levy which has heretofore been devoted to retire
its indebtedness.




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        Should the KCMSD fail to provide sufficient funding to cover retirement of the
bonds or other obligations, the aggrieved parties can seek appropriate relief. Should
efforts be made to declare the district unitary before retirement of the obligations for
the new construction, the issue can appropriately be determined at that time. Should
this issue arise, there will be time enough to bring it before this court.

       New legislation enacted after argument on this appeal, S. Bill No. 781, 89th
General Assembly (Mo. 1998) (enacted), is expected to result in significant additional
revenues to the KCMSD. As the parties make clear, this legislation is contingent upon
settlement of the St. Louis school desegregation on or before March 15, 1999. If the
funds are available, KCMSD's financial concerns will be greatly alleviated. KCMSD
agrees that any issue concerning this additional funding is not yet ripe for review
insofar as various hypothetical occurrences arise from the arguments of the parties. If
the issue requires resolution in the future, it may be addressed on the record then before
us.

       Accordingly, the appeal is dismissed with the clear proviso that if some of the
contingencies argued by the parties come to pass the issues may be raised when they
are ripe and require a decision.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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