           _____________

           No. 95-2347EA
           _____________

Catherine Edgerson, on Behalf        *
of Joe N. Edgerson, Jr., Hazel       *
R. Edgerson and Jarred J.            *
Edgerson; Jarred J. Edgerson;        *
Hazel R. Edgerson; Joe N.            *
Edgerson, Jr.,                       *
                                     *
           Plaintiffs-Appellants,*
                                     *
     v.                              *
                                     *
Bill Clinton, Governor of            *
the State of Arkansas,               *
Individually; Burton Elliott,        *
Director of the Arkansas State       *
Department of Education,             *
Individually; Rae Rice Perry,        *
Member of the Arkansas State         *
Board of Education,                  *
Individually; James McLarty,         *
Member of the Arkansas State         *
Board of Education,                  *
Individually; L. D. Harris,          *
Member of the Arkansas State         *   Appeals from the United States
Board of Education,                  *   District Court for the Eastern
Individually; Richard Smith,         *   District of Arkansas.
Member of the Arkansas State         *
Board of Education,                  *
Individually; Elaine Scott,          *
Member of the Arkansas State         *
Board of Education,                  *
Individually; Walter Turnbow,        *
Member of the Arkansas State         *
Board of Education,                  *
Individually; Nancy Wood,            *
Member of the Arkansas State         *
Board of Education,                  *
Individually; Star City              *
Arkansas School District No.         *
11, Board of Education; Gould        *
Arkansas School District, Board      *
of Education, A Public Body          *
Corporate; Grady Arkansas            *
School District, Board of            *
Education, A Public Body             *
Corporate; Dumas Arkansas            *
School District, Board of            *
Education, A Public Body             *
Corporate; Lincoln County,           *
Board of Education, A Public         *
Body Corporate, *
                                     *
           Defendants-Appellees.     *

           _____________

           No. 95-2667EA
           _____________

Catherine Edgerson, on Behalf        *
of Joe N. Edgerson, Jr., Hazel       *
R. Edgerson and Jarred J.            *
Edgerson; Jarred J. Edgerson;        *
Hazel R. Edgerson; Joe N.            *
Edgerson, Jr.,                       *
                                     *
           Plaintiffs-Appellees,     *
                                     *
     v.                              *
                                     *
Bill Clinton, Governor of the        *
State of Arkansas, Individually;*
Burton Elliott, Director of the      *
Arkansas State Department of         *
Education, Individually; Rae         *
Rice Perry, Member of the            *
Arkansas State Board of              *
Education, Individually; James       *
McLarty, Member of the               *
Arkansas State Board of              *
Education, Individually; L. D.       *
Harris, Member of the                *
Arkansas State Board of              *
Education, Individually;             *
Richard Smith, Member of the         *
Arkansas State Board of              *
Education, Individually; Elaine      *
Scott, Member of the Arkansas        *
State Board of Education,            *
Individually; Walter Turnbow,        *
Member of the Arkansas State         *
Board of Education,                  *
Individually; Nancy Wood,            *
Member of the Arkansas State         *
Board of Education,                  *
Individually; Star City              *
Arkansas School District No. 11 *
Board of Education;                  *
                                     *




                                    -2-
            Defendants-Appellees,      *
                                       *
Gould Arkansas School District         *
Board of Education, A Public           *
Body Corporate; *
                                       *
            Defendant,                 *
                                       *
Grady Arkansas School District         *
Board of Education, A Public           *
Body Corporate; *
                                       *
            Defendant-Appellant,       *
                                       *
Dumas Arkansas School District         *
Board of Education, A Public           *
Body Corporate; *
                                       *
            Defendant-Appellee,        *
                                       *
Lincoln County Board of                *
Education, A Public Body               *
Corporate,       *
                                     *
            Defendant.               *
                               _____________

                         Submitted:   April 10, 1996

                           Filed: June 21, 1996
                                _____________

Before McMILLIAN and FAGG, Circuit Judges, and BURNS,* District
      Judge.
                              _____________


FAGG, Circuit Judge.


     Catherine Edgerson and her three school-aged children, residents of
the Gould School District in Lincoln County, Arkansas, brought this lawsuit
against the Gould School District; the neighboring Grady, Star City, and
Dumas School Districts; the Lincoln County School Board; and various state
officials




     *The HONORABLE JAMES M. BURNS, United States
     District Judge for the District of Oregon, sitting
     by designation.

                                      -3-
responsible for the Arkansas public education system.            Edgerson asserted
the defendants intentionally caused the school districts to become racially
segregated, in violation of the Fourteenth Amendment's Equal Protection
Clause and 42 U.S.C. §§ 1981, 1983, and 2000(d).           See Brown v. Board of
Educ.,    347 U.S. 483, 495 (1954).             As a remedy, Edgerson requested
consolidation of some of the districts, or the creation of magnet schools
and other programs to improve the racial balance among the districts and
eliminate racial disparities.        Each defendant filed cross-claims asserting
that if segregation had occurred, the other defendants were to blame.
Following a bench trial, the district court entered judgment for the
defendants on Edgerson's claim, and dismissed the cross-claims.            Edgerson
appeals, and the Grady School District appeals the dismissal of its cross-
claims.    We affirm.


        As an initial matter, we deny the Dumas School District's motion
seeking dismissal from this appeal.        Contrary to Dumas's view, Edgerson's
failure to name Dumas as an appellee in her notice of appeal did not
violate Federal Rule of Appellate Procedure 3(c).           Thomas v. Gunter, 32
F.3d 1258, 1262 (8th Cir. 1994).        Finding no procedural error, we turn to
the merits.


        Most of the relevant facts are undisputed.      During the first half of
this century, each school district in this appeal operated one school
system for white students and a separate school system for black students,
as Arkansas law required.       Ark. Stat. Ann. § 80-509(c) (1980) (repealed
1983).    After the United States Supreme Court rejected the "separate but
equal" doctrine in 1954, see Brown v. Board of Educ., 347 U.S. at 495, the
State     of   Arkansas   actively    opposed    desegregation   and   delayed   the
elimination of the dual school system for many years.        The school districts
finally merged their black and white schools during the late 1960s and
early 1970s.     Since then, the Gould and Grady districts have had a large
majority of black students.          The Dumas district is also predominantly
black, but to a lesser extent than Gould or Grady,




                                         -4-
and Star City is a mostly white district.


     Arkansas has several laws that allow students to attend school
outside the districts where they reside.       One of the laws, known as the
Sibling Act, was passed in 1983.     The Sibling Act permits students who were
attending school outside their resident district during the 1982-83 or
1983-84 school years, and all of the students' current or future siblings,
to continue attending the same school.       Ark. Code Ann. § 6-18-205(a)(1)
(Michie 1993).      Arkansas also has a statute that permits students to
transfer from their resident school district to a different district with
the consent of both districts and the county school board (the transfer
statute).     Id. § 6-18-316.   In 1987, the Arkansas Legislature limited the
use of the transfer statute by prohibiting transfers that adversely affect
the racial balance in a school district that is or has been under a court
desegregation order.      Id. § 6-18-317.    Both Gould and Grady have been
subject to desegregation orders in the past.     Raney v. Board of Educ., 391
U.S. 443, 447-48 (1968) (Gould);     Carthan v. Board of Educ., No. PB 68-C-35
(E.D. Ark. filed Apr. 20, 1971) (unpublished consent decree) (Grady).


     Before the 1987 restriction on transfers, all four school districts
and the Lincoln County Board of Education routinely granted transfer
applications.     Between 1971 and 1985, 84 students transferred from Grady
to Star City;     27 students transferred from Gould to Star City;    and 100
transferred from Gould to Dumas.       Over 90% of the transferring students
were white.    Gould and Grady stopped granting transfers in 1987.   The State
Board of Education later asked Gould and Grady to review the transfers
granted in earlier years because the transfers might have upset the
districts' racial balance.        In response, Gould and Grady revoked all
transfers effective 1991.       For reasons that are disputed, not all of the
transfer students from Grady returned to the Grady schools.       In addition
to the transfers, students covered by the Sibling Act have attended school
outside their resident districts as a matter of




                                       -5-
right, usually without leaving any record that they were attending under
the Sibling Act.


       From the 1979-80 school year to the 1991-92 school year, the student
population of Gould dwindled from 495 students to 357.                    The racial
composition of the school system changed from 80% black and 20% white to
about 97% black and 3% white.           Grady's total enrollment dropped from 540
to 360 students over the same period, and the racial composition changed
from 76% black and 24% white to about 87% black and 13% white.            The change
in the black-white student ratio can be attributed in part to transfers of
white students.     Also, some white families moved out of the Gould and Grady
districts during this period.      The loss in student enrollment caused a loss
of state education funds.         In fact, the Gould and Grady districts are
barely financially viable, and state evaluations of the school districts
show student academic achievement is markedly lower in the Gould and Grady
districts than in Star City and Dumas.


       Based on these facts, Edgerson contends the Lincoln County schools
have become resegregated and the community perceives Gould and Grady as
"black districts" neighbored by much "whiter" districts, Star City and
Dumas.    See United States v. Lowndes County Bd. of Educ., 878 F.2d 1301,
1305 (11th Cir. 1989).        Edgerson claims the state officials and school
districts    promoted     resegregation     by   permitting   or   encouraging   white
students from the Gould and Grady districts to attend the Star City or
Dumas schools under the transfer statute and the Sibling Act.               Edgerson
also     contends   the   Star   City    district    encouraged    resegregation    by
discriminating against black students, and state officials failed to remedy
county-wide racial disparities and the serious educational deficiencies at
the Gould and Grady schools.


       The parties agree on the applicable law.        Brown v. Board of Education
established that "in the field of public education the




                                           -6-
doctrine of `separate but equal' has no place.                       Separate educational
facilities [based on race] are inherently unequal."                      347 U.S. at 495.
Accordingly, the Fourteenth Amendment's Equal Protection Clause prohibits
states from mandating or deliberately maintaining segregated schools.
Milliken v. Bradley, 418 U.S. 717, 737 (1974).                       States that operated
segregated schools in the past must take necessary steps to eliminate
segregation "root and branch."         Columbus Bd. of Educ. v. Penick, 443 U.S.
449, 459 (1979) (quoting Green v. County Sch. Bd., 391 U.S. 430, 438
(1968)).


     To prove an Equal Protection violation, Edgerson must show the state
and local officials acted with a discriminatory purpose.                 Little Rock Sch.
Dist. v. Pulaski County Special Sch. Dist. No. 1, 778 F.2d 404, 410 (8th
Cir. 1985), cert. denied, 476 U.S. 1186 (1986).                      Because Edgerson is
seeking an interdistrict remedy (consolidation or an interdistrict magnet
school plan), she also must show "there has been a constitutional violation
within one district that produces a significant segregative effect in
another district.        Specifically, [Edgerson must show] 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."    Milliken, 418 U.S. at 745;            Missouri v. Jenkins, 115 S. Ct.
2038, 2050-52 (1995).      Unlike cases involving segregation within a single
school district, there is no presumption that racial imbalances among
separate,    independent      school       districts    were    caused       by   intentional
discrimination.       Jenkins v. Missouri, 807 F.2d 657, 670 (8th Cir. 1986),
cert. denied, 484 U.S. 816 (1987).             Rather, Edgerson must present clear
proof of an interdistrict violation and clearly explain the extent of the
interdistrict effects.        Id. at 666.       Also, Edgerson must demonstrate the
interdistrict segregative effects are current.                 Id.     "Federal courts may
not . . . fashion a remedy to correct a condition unless it currently
offends the Constitution."       Id.


     The district court concluded the state and local officials'




                                             -7-
actions did not have a significant interdistrict effect because the
decrease in Gould and Grady's white enrollment was mainly a result of
demographic changes.       Also, the district court found the challenged actions
had no current segregative effect, because at the time of trial there were
no transfers that were negatively affecting the districts' racial balance.
Edgerson challenges these findings and conclusions.              Because the district
court's finding of no current segregative effect is not clearly erroneous,
see Little Rock Sch. Dist., 778 F.2d at 410-11, we affirm.


        The record supports the district court's finding that the transfer
policies were not negatively affecting the districts' racial balance at the
time of trial, and thus had no current segregative effect.                     The record
shows that since 1987, Arkansas law has prohibited transfers that would
negatively affect the racial balance in the Gould and Grady districts, and
those districts have refused to grant transfers.                 Gould and Grady also
revoked all past transfers effective 1991.             Although some of the transfer
students from Grady never returned, there was evidence that no transfer
students were still attending the Star City or Dumas schools at the time
of trial.      For example, the Star City superintendent testified that by
1993,    there were no transfer students in his district.                      The Dumas
superintendent testified there were about thirty transfer students at Dumas
when Gould and Grady revoked the transfers, but after Dumas officials
notified    the   students    about    the     revocation,   some   of   the     students
established legal residence in Dumas or left the district, and the
superintendent refused to re-enroll a few students he identified as
nonresidents.     The superintendent believed all the former transfer students
attending the Dumas schools at the time of trial were lawfully attending
in Dumas.   As far as the Sibling Act is concerned, there was testimony that
only nine white students attended the Star City schools under the Sibling
Act   during    1992-93,    and   by   the   1993-94    school   year,   all    nine   had
established legal residence in Star City or were no longer attending school
there.    There were only two white families




                                             -8-
attending the Dumas schools based on the Sibling Act.


       Despite the district court's repeated requests for specific proof,
Edgerson's witnesses were not able to identify any other students who
resided in the Gould or Grady districts and were still attending the Star
City   or   Dumas   schools   based   on     the   challenged    transfer   policies.
Edgerson's witnesses pointed to lists of students who had been covered by
the Sibling Act or had been granted legal transfers at one time, but the
defendants   presented   evidence     that    most   of   the   listed   students   had
graduated, stopped attending, established residence in Star City or Dumas,
or were lawfully attending the Star City and Dumas schools based on state
statutes not involved in this case.          On this record, the district court's
finding of no current segregative effect is well supported.


       Edgerson contends that even if there are currently no student
transfers that are negatively affecting the schools' racial balance, the
transfer policies caused other current segregative effects in the Gould and
Grady districts.      Specifically, Edgerson claims the transfer policies
created a continuing community perception that Gould and Grady are strictly
black school districts and that Star City and Dumas are havens for white
students.     Relying on expert testimony presented at trial, Edgerson
predicts white families will move out of the Gould and Grady districts,
causing the local schools to lose more students and resources.                 No one
disputes the white population in Gould and Grady is decreasing, but
Edgerson did not show any specific individuals had moved or decided to move
because of the transfer policies.      Further, there is evidence in the record
that Gould and Grady's declining agrarian economy offers limited job
opportunities and some residents are moving away for this reason.                   The
record also shows that before the Sibling Act and the transfer statute ever
came into use, Gould and Grady were predominantly black districts and some
white residents were threatening to move rather than send their children
to school there.    Looking at this mix of factors, the district court could




                                        -9-
reasonably conclude the transfer policies were not causing white flight.
District courts are "`uniquely situated . . . to appraise the societal
forces at work in the communities were they sit.'"         Little Rock Sch. Dist.,
778 F.2d at 411 (quoting Columbus Bd. of Educ., 443 U.S. at 470 (Stewart,
J., concurring)).


        Edgerson also claims the district court ignored her contentions that
the Star City School District discriminates against black students and that
state officials have not taken adequate steps to improve black student
performance and the quality of education in Gould and Grady.          Although the
district court did not discuss these contentions at length, we think the
district court considered the contentions because the district court
specifically mentioned them in its order.             According to Edgerson, Star
City's discrimination and the state officials' inaction are causing out-of-
district attendance and white flight, but as we have already discussed, the
district court was entitled to take a different view of the evidence.              We
are not holding that state officials may turn a blind eye to any lingering
effects of the past, state-mandated dual school system within individual
school districts.        We are simply saying that the remedy must fit the wrong.
Under Milliken, we cannot order interdistrict relief without a showing of
interdistrict segregation.         418 U.S. at 745.


        In conclusion, because the district court properly found the alleged
constitutional violations are not currently causing racial segregation
among     the   school    districts,   the   court   correctly   refused   to   order
consolidation or an interdistrict magnet school plan.               We affirm the
district court's denial of Edgerson's claim and dismissal of the cross-
claims.




                                         -10-
A true copy.


     Attest:


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




                            -11-
