                United States Court of Appeals
                  FOR THE EIGHTH CIRCUIT



                       No. 97-3572



Michael C. Liddell, a minor,* by
Minnie Liddell, his mother and
                            *    next
friend; Kendra Liddell, a minor,
                            *
by Minnie Liddell, her mother
                            * and next
friend; Minnie Liddell; Roderick
                            *       D.
LeGrand, a minor, by Lois LeGrand,
                            *
his mother and next friend; *Lois
LeGrand; Clodis Yarber, a minor,
                            *       by
Samuel Yarber, his father and
                            * Appeal
                               next     from the United
States
friend; Samuel Yarber; Earline
                            * District
                                 Caldwell;
                                         Court for the
Lillie Caldwell; Gwendolyn Daniels;
                            * Eastern       District   of
Missouri.
National Association for the*
Advancement of Colored People;
                            *
United States of America; *
                            *
    Plaintiffs-Appellees; *
                            *
City of St. Louis;          *
                            *
                 Plaintiff; *
                            *
         v.                 *
                               *
The Board of Education of the
                            * City of
St. Louis; Hattie R. Jackson,
                            * President,
Board of Education of the City
                            *    of St.
Louis; Rev. Earl E. Nance, Jr.,
                            *     a
member of the Board of Education
                            *       of
the City of St. Louis; Renni* B. Shuter,
a member of the Board of Education;
                             *
of the City of St. Louis; Paula
                             *     V.
Smith, a member of the Board* of Educa-
tion of the City of St. Louis;
                             *   Dr. Albert
D. Bender, Sr., a member of *the Board
of Education of the City of *St. Louis;
Eddie G. Davis, a member of *the Board
of Education of the City of *St. Louis;
Dr. John P. Mahoney, a member* of the
Board of Education of the City
                             *   of St.
Louis; Marybeth McBryan, a member
                             *
of the Board of Education of* the City
of St. Louis; Thomas M. Nolan,
                             *   a
member of the Board of Education
                             *      of
the City of St. Louis; William
                             *   Purdy, a
member of the Board of Education
                             *      of
the City of St. Louis; Robbyn* G. Wahby,
a member of the Board of Education
                             *         of
the City of St. Louis; Madye* Henson
Whithead, a member of the Board
                             *      of
Education of the City of St.* Louis;
Dr. Cleveland Hammonds, Jr.,* Super-
intendent of      Schools for* the City of St.
Louis;                       *
                             *
       Defendants-Appellees;*
                             *
Ronald Leggett, St. Louis Collector
                             *          of
Revenue;                     *
              Defendant;     *
                             *
State of Missouri; Mel Carnahan,
                             *
Governor of the State of Missouri;
                             *
Jeremiah (Jay) W. Nixon, Attorney
                             *
General; Bob Holden, Treasurer;
                             *
Richard A. Hanson, Commissioner
                             *      of
Administration; Robert E. Bartman,
                             *




                            2
Commissioner of Education; Missouri
                            *
State Board of Education, and
                            * its
members; Thomas R. Davis; *
Sharon M. Williams; Peter F.*
Herschend; Jacqueline D. Wellington;
                            *
Betty E. Preston; Russell V.* Thompson;
Rice Pete Burns; William Kahn;
                            *
                            *
      Defendants-Appellants;*
                            *
Special School District of St.
                            *   Louis
County; Affton Board of Education;
                            *
Bayless Board of Education; *Brentwood
Board of Education; Clayton *Board of
Education; Ferguson-Florissant
                            *   Board
of Education; Hancock Place *Board of
Education; Hazelwood Board of
                            *
Education; Jennings Board of* Education;
Kirkwood Board of Education;* LaDue
Board of Education; Lindbergh
                            * Board of
Education; Maplewood-Richmond
                            *
Heights Board of Education; *Mehlville
Board of Education; Normandy* Board
of Education; Parkway Board *of
Education; Pattonville Board* of Educa-
tion; Ritenour Board of Education;
                            *
Riverview Gardens Board of Education;
                            *
Rockwood Board of Education;*
University City Board of Education;
                            *
Valley Park Board of Education;
                            *
Webster Groves Board of Education;
                            *
Wellston Board of Education;*
                            *
       Defendants-Appellees;*
                            *




                            3
St. Louis County; Buzz Westfall,
                            *     County
Executive; James Baker, Director
                            *     of
Administration, St. Louis County,
                            *
Missouri; Robert H. Peterson,
                            * Collector
of St. Louis County "Contract
                            * Account,"
St. Louis County, Missouri;The
                            *  St.
Louis Career Education District;
                            *
                            *
                Defendants; *
                            *
St. Louis Teachers' Union, Local
                            *     420,
AFT, AFL-CIO;               *
                            *
        Intervenor Below. *


                            Submitted: February 25, 1998

                                  Filed: April 28, 1998


Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.



HEANEY, Circuit Judge.

       The State of Missouri (State) appeals from the district court&s July 22, 1997
order requiring the State to pay the Special School District (SSD) the costs of providing
special education services to city voluntary interdistrict transfer students between 1985
and 1996, and ordering the parties to resolve by September 19, 1997, any differences
regarding the method for calculating the amounts due. We affirm in part, and reverse
and remand in part.




                                           4
        In September 1983, the SSD, the Board of Education of the City of St. Louis
(City Board), the United States, and the Liddell and Caldwell plaintiffs, entered into an
agreement and submitted a proposed plan to settle claims relating to special education
services arising from the pending desegregation litigation. In 1985, following a fairness
hearing, the district court approved the special education plan. The plan addressed,
inter alia, education services for Phase I students--students with mild disabilities who
receive itinerant and resource classroom special education services and who spend less
than 50% of their instructional time in self-contained special education classes. Under
the plan, the SSD was to provide necessary special education services to Phase I
students who transfer to suburban school districts from the city under the voluntary
interdistrict transfer plan. The plan required the State to reimburse the SSD for the per
pupil costs of providing these services. In approving the plan, the district court ordered
the State to pay the reasonable, actual unreimbursed costs of implementing the
approved plan, including unreimbursed per pupil costs, certain administrative costs, and
transportation. Additionally, the per pupil reimbursement was to be determined by
averaging the costs directly attributable to Phase I students. In other words, the direct
costs of the teacher, classroom rental, and direct supervisory time attributed to Phase
I students would be charged to the State.

       In March 1995, the SSD requested that the State reimburse it for $7,425,000 in
costs for providing special education services to Phase I transfer students for the 1994-
95 school year. The SSD indicated that in prior years, the SSD had chosen to forego
State reimbursement for Phase I costs, but that, because of an increase in the number
of voluntary transfer students being serviced by the SSD and its severe budget
problems, the SSD was seeking reimbursement. The SSD also estimated that the
State&s obligations for the 1995-96 school year would be a similar amount. The district
court did not rule on this request. In May 1996, the SSD supplemented its request to
include costs for the school years from 1986 through 1996. Again, no action was
taken.


                                            5
       In November 1996, the SSD filed a motion with the district court seeking State
reimbursement for the school years from 1985-86 through 1996-97, or alternatively for
release from the special education plan. The SSD indicated that it and the State had
agreed on the methodology for calculating the costs for the 1994-95 school year, and the
SSD sought an opportunity to reach an agreement with the State on the calculations for
the other years. The State opposed the motion, arguing, inter alia, that the doctrines of
waiver and laches barred the SSD&s request for the years before 1994, and that the
SSD&s request for diagnostic, screening, and evaluation costs were not reimbursable.

       The district court granted the SSD&s motion for reimbursement. The court
concluded that waiver or laches did not apply. Accordingly, the district court ordered
the State to resolve its differences about the method for calculating the amounts due by
September 19, 1997. SSD submitted its position statement showing an amount due of
$27,113,177, and with interest, $39,976,542.

       On appeal, the State reiterates its arguments that it is not obligated to continue
funding because there is no interdistrict violation under Missouri v. Jenkins, 515 U.S.
70 (1995), unitary status has been achieved, and there are no longer victims of de jure
violation. We reject the State&s renewed objections to its general funding obligations for
the reasons stated in Liddell v. Board of Education, 126 F.3d 1049, 1055-59 (8th Cir.
1997), cert. denied, 118 S. Ct. 1164 (1998). We decline to reconsider that decision.

      We agree with the State and the City Board that the SSD&s ten-year delay in
seeking reimbursement and its 1994 declaration that it had previously chosen to forego
reimbursement for Phase I costs before the 1994-95 school year constitutes an express
waiver of its right to receive these costs before 1994. See Johnson v. Zerbst, 304 U.S.
458, 464 (1938) (waiver is intentional relinquishment or abandonment of a known right).
In addition, we conclude that the doctrine of laches also applies here to avoid




                                            6
unfairness resulting from the prosecution of stale claims. See Goodman v. McDonnell
Douglas Corp., 606 F.2d 800, 805 (8th Cir. 1979), cert. denied, 446 U.S. 913 (1980).
To prove laches, courts look to whether the delay in exercising a right is unreasonable
and unexcused and whether the delay results in prejudice for the defendant. See id. at
804. We conclude that SSD has not adequately explained the ten-year delay in seeking
reimbursement, and that the paucity of records hinders the State&s ability to retroactively
apply the complex reimbursement formula.

       We also agree with the State that diagnostic, screening, and evaluation costs are
not reimbursable under the special education plan. We understand from counsel at oral
argument that these diagnostic costs for the school years beginning 1994-95 have been
quantified, and that the parties have reached an agreement as to the methodology for
computing other reimbursable costs for the years after 1994-95. We trust that the parties
will come to a resolution of the amounts in issue without further court intervention. We
note that the State is not obligated to pay interest on the reimbursable costs.

      Accordingly, we reverse the district court&s order requiring the State to pay the
SSD for all reimbursable costs from 1986 through the 1993-94 school year, and remand
for a determination of reimbursable costs under the special education plan, minus
diagnostic, screening, and evaluation costs, beginning from the 1994-95 school year
through the 1996-97 school year.

      A true copy.

             Attest:

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




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