Missouri v. Jenkins

No. 93-1823

Argued January 11, 1995

Decided June 12, 1995 *

[U.S. Reports citation not yet available]

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Syllabus



In this 18-year-old school desegregation litigation, see, e.g., Missouri

v. Jenkins, 495 U.S. 33, Missouri challenges the District Court's orders

requiring the State (1) to fund salary increases for virtually all

instructional and noninstructional staff within the Kansas City,

Missouri, School District (KCMSD), and (2) to continue to fund remedial

"quality education" programs because student achievement levels were

still "at or below national norms at many grade levels."  In affirming

the orders, the Court of Appeals rejected the State's argument that the

salary increases exceeded the District Court's remedial authority

because they did not directly address and relate to the State's

constitutional violation:  its operation, prior to 1954, of a segregated

school system within the KCMSD.  The Court of Appeals observed, inter

alia, that the increases were designed to eliminate the vestiges of

state-imposed segregation by improving the "desegregative

attractiveness" of the district and by reversing "white flight" to the

suburbs.  The Court of Appeals also approved the District Court's

"implici[t]" rejection of the State's request for a determination of

partial unitary status, under Freeman v. Pitts, 503 U.S. 467, 491, with

respect to the existing quality education programs.



Held:



1. Respondents' arguments that the State may no longer challenge the

District Court's desegregation remedy and that, in any event, the

propriety of the remedy is not before this Court are rejected.  Because,

in Jenkins, 495 U.S. at 37, certiorari was granted to review the manner

in which this remedy was funded, but denied as to the State's challenge

to review the remedial order's scope, this Court resisted the State's

efforts to challenge such scope and, thus, neither approved nor

disapproved the Court of Appeals' conclusion that the remedy was proper,

see, e.g., id. at 53.  Here, however, the State has challenged the

District Court's approval of across-the-board salary increases as beyond

its remedial authority.  Because an analysis of the permissible scope of

that authority is necessary for a proper determination of whether the

salary increases exceed such authority, a challenge to the scope of the

remedy is fairly included in the question presented for review.  See

this Court's Rule 14.1 and, e.g., Procunier v. Navarette, 434 U.S. 555,

560, n. 6.  Pp. ___.



2. The challenged orders are beyond the District Court's remedial

authority.  Pp. ___.



(a) Although a District Court necessarily has discretion to fashion a

remedy for a school district unconstitutionally segregated in law, such

remedial power is not unlimited and may not be extended to purposes

beyond the elimination of racial discrimination in public schools. 

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 22-23.  Proper

analysis of the orders challenged here must rest upon their serving as

proper means to the end of restoring the victims of discriminatory

conduct to the position they would have occupied absent that conduct,

see, e.g., Milliken v. Bradley, 418 U.S. 717, 746, and their eventual

restoration of state and local authorities to the control of a school

system that is operating in compliance with the Constitution, see, e.g.,

Freeman, 503 U.S. at 489.  The factors which must inform a court's

discretion in ordering complete or partial relief from a desegregation

decree are:  (1) whether there has been compliance with the decree in

those aspects of the school system where federal supervision is to be

withdrawn; (2) whether retention of judicial control is necessary or

practicable to achieve compliance in other facets of the system; and (3)

whether the district has demonstrated to the public and to the parents

and students of the once disfavored race its good faith commitment to

the whole of the decree and to those statutes and constitutional

provisions that were the predicate for judicial intervention in the

first place.  Id. at 491.  The ultimate inquiry is whether the

constitutional violator has complied in good faith with the decree since

it was entered, and whether the vestiges of discrimination have been

eliminated to the extent practicable.  Id. at 492.  Pp. ___.



(b) The order approving salary increases, which was grounded in

improving the "desegregative attractiveness" of the KCMSD, exceeds the

District Court's admittedly broad discretion.  The order should have

sought to eliminate to the extent practicable the vestiges of prior de

jure segregation within the KCMSD:  a system-wide reduction in student

achievement and the existence of 25 racially identifiable schools with a

population of over 90% black students.  Instead, the District Court

created a magnet district of the KCMSD in order to attract nonminority

students from the surrounding suburban school districts and to

redistribute them within the KCMSD schools.  This interdistrict goal is

beyond the scope of the intradistrict violation identified by the

District Court.  See, e.g., Milliken, supra, at   Indeed, the District

Court has found, and the Court of Appeals has affirmed, that the case

involved no interdistrict violation that would support interdistrict

relief.  See, e.g., Jenkins, supra, at 37, n. 3.  The District Court has

devised a remedy to accomplish indirectly what it admittedly lacks the

remedial authority to mandate directly:  the interdistrict transfer of

students.  See Milliken, 418 U.S. at 745.  The record does not support

the District Court's reliance on "white flight" as a justification for a

permissible expansion of its intradistrict remedial authority through

its pursuit of desegregative attractiveness.  See, e.g., id. at 746. 

Moreover, that pursuit cannot be reconciled with this Court's decisions

placing limitations on a district court's remedial authority.  See,

e.g., ibid.  Nor are there appropriate limits to the duration of the

District Court's involvement.  See, e.g., Freeman, supra, at 489.  Thus,

the District Court's pursuit of the goal of "desegregative

attractiveness" results in too many imponderables and is too far removed

from the task of eliminating the racial identifiability of the schools

within the KCMSD.  Pp. ___.



(c) Similarly, the order requiring the State to continue to fund the

quality education programs cannot be sustained.  Whether or not KCMSD

student achievement levels are still "at or below national norms at many

grade levels" clearly is not the appropriate test for deciding whether a

previously segregated district has achieved partially unitary status. 

The District Court should sharply limit, if not dispense with, its

reliance on this factor in reconsidering its order, and should instead

apply the three-part Freeman test.  It should bear in mind that the

State's role with respect to the quality education programs has been

limited to the funding, not the implementation, of those programs; that

many of the goals of the quality education plan already have been

attained; and that its end purpose is not only to remedy the violation

to the extent practicable, but also to restore control to state and

local authorities.  Pp. ___.



11 F.3d 755 (first case) and 13 F.3d 1170 (second case), reversed.



REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR,

SCALIA, KENNEDY, and THOMAS, JJ., joined.  O'CONNOR, J., and THOMAS, J.,

filed concurring opinions.  SOUTER, J., filed a dissenting opinion, in

which STEVENS, GINSBURG, and BREYER, JJ., joined.  GINSBURG, J., filed a

dissenting opinion. REHNQUIST, J., lead opinion



CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.



As this school desegregation litigation enters its 18th year, we are

called upon again to review the decisions of the lower courts.  In this

case, the State of Missouri has challenged the District Court's order of

salary increases for virtually all instructional and noninstructional

staff within the Kansas City, Missouri, School District (KCMSD) and the

District Court's order requiring the State to continue to fund remedial

"quality education" programs because student achievement levels were

still "at or below national norms at many grade levels." I



A general overview of this litigation is necessary for proper resolution

of the issues upon which we granted certiorari.  This case has been

before the same United States District Judge since 1977.  Missouri v.

Jenkins, 491 U.S. 274, 276 (1989) (Jenkins I).  In that year, the KCMSD,

the school board, and the children of two school board members brought

suit against the State and other defendants.  Plaintiffs alleged that

the State, the surrounding suburban school districts (SSD's), and

various federal agencies had caused and perpetuated a system of racial

segregation in the schools of the Kansas City metropolitan area.  The

District Court realigned the KCMSD as a nominal defendant and certified

as a class, present and future KCMSD students.  The KCMSD brought a

cross-claim against the State for its failure to eliminate the vestiges

of its prior dual school system.



After a trial that lasted 7 1/2 months, the District Court dismissed the

case against the federal defendants and the SSD's, but determined that

the State and the KCMSD were liable for an intradistrict violation,

i.e., they had operated a segregated school system within the KCMSD. 

Jenkins v. Missouri, 593 F.Supp. 1485 (WD Mo. 1984).  The District Court

determined that prior to 1954 "Missouri mandated segregated schools for

black and white children."  Id. at 1490.  Furthermore, the KCMSD and the

State had failed in their affirmative obligations to eliminate the

vestiges of the State's dual school system within the KCMSD.  Id. at

1504.



In June, 1985, the District Court issued its first remedial order and

established as its goal the "elimination of all vestiges of state

imposed segregation."  Jenkins v. Missouri, 639 F.Supp. 19, 23 (WD Mo.

1985).  The District Court determined that "[s]egregation ha[d] caused a

system-wide reduction in student achievement in the schools of the

KCMSD."  Id. at 24.  The District Court made no particularized findings

regarding the extent that student achievement had been reduced or what

portion of that reduction was attributable to segregation.  The District

Court also identified 25 schools within the KCMSD that had enrollments

of 90% or more black students.  Id. at 36.



The District Court, pursuant to plans submitted by the KCMSD and the

State, ordered a wide range of quality education programs for all

students attending the KCMSD.  First, the District Court ordered that

the KCMSD be restored to an AAA classification, the highest

classification awarded by the State Board of Education.  Id. at 26. 

Second, it ordered that the number of students per class be reduced so

that the student-to-teacher ratio was below the level required for AAA

standing.  Id. at 28-29.  The District Court justified its reduction in

class size as an essential part of any plan to remedy the vestiges of

segregation in the KCMSD.  Reducing class size will serve to remedy the

vestiges of past segregation by increasing individual attention and

instruction, as well as increasing the potential for desegregative

educational experiences for KCMSD students by maintaining and attracting

nonminority enrollment. Id. at 29.  The District Court also ordered

programs to expand educational opportunities for all KCMSD students: 

full-day kindergarten; expanded summer school; before- and after-school

tutoring; and an early childhood development program.  Id. at 30-33. 

Finally, the District Court implemented a state-funded "effective

schools" program that consisted of substantial yearly cash grants to

each of the schools within the KCMSD.  Id. at 33-34.  Under the

"effective schools" program, the State was required to fund programs at

both the 25 racially identifiable schools as well as the 43 other

schools within the KCMSD.  Id. at 33.



The KCMSD was awarded an AAA rating in the 1987-1988 school year, and

there is no dispute that, since that time, it has "`maintained and

greatly exceeded AAA requirements.'"  19 F.3d 393, 401 (CA8 1994) (Beam,

J., dissenting from denial of rehearing en banc).  The total cost for

these quality education programs has exceeded $220 million.  Missouri

Department of Elementary and Secondary Education, KCMSD Total

Desegregation Program Expenditures (Sept. 30, 1994) (Desegregation

Expenditures).



The District Court also set out to desegregate the KCMSD but believed

that "[t]o accomplish desegregation within the boundary lines of a

school district whose enrollment remains 68.3% black is a difficult

task."  639 F.Supp. at 38.  Because it had found no interdistrict

violation, the District Court could not order mandatory interdistrict

redistribution of students between the KCMSD and the surrounding SSD's. 

Ibid.; see also Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I). 

The District Court refused to order additional mandatory student

reassignments because they would "increase the instability of the KCMSD

and reduce the potential for desegregation."  639 F.Supp. at 38. 

Relying on favorable precedent from the Eighth Circuit, the District

Court determined that [a]chievement of AAA status, improvement of the

quality of education being offered at the KCMSD schools, magnet schools,

as well as other components of this desegregation plan can serve to

maintain and hopefully attract nonminority student enrollment. Ibid.



In November, 1986, the District Court approved a comprehensive magnet

school and capital improvements plan and held the State and the KCMSD

jointly and severally liable for its funding.  1 App. 130-193.  Under

the District Court's plan, every senior high school, every middle

school, and one-half of the elementary schools were converted into

magnet schools.  Id. at 131.  The District Court adopted the

magnet-school program to "provide a greater educational opportunity to

all KCMSD students," id. at 131-132, and because it believed that the

proposed magnet plan [was] so attractive that it would draw nonminority

students from the private schools who have abandoned or avoided the

KCMSD, and draw in additional nonminority students from the suburbs. Id.

at 132.  The District Court felt that [t]he long-term benefit of all

KCMSD students of a greater educational opportunity in an integrated

environment is worthy of such an investment. Id. at 133.  Since its

inception, the magnet school program has operated at a cost, including

magnet transportation, in excess of $448 million.  See Desegregation

Expenditures.  In April, 1993, the District Court considered, but

ultimately rejected, the plaintiffs' and the KCMSD's proposal seeking

approval of a long-range magnet renewal program that included a 10-year

budget of well over $500 million, funded by the State and the KCMSD on a

joint-and-several basis.  App. to Pet. for Cert. A-123.



In June 1985, the District Court ordered substantial capital

improvements to combat the deterioration of the KCMSD's facilities.  In

formulating its capital improvements plan, the District Court dismissed

as "irrelevant" the "State's argument that the present condition of the

facilities [was] not traceable to unlawful segregation."  639 F.Supp. at

40.  Instead, the District Court focused on its responsibility to

"remed[y] the vestiges of segregation" and to "implemen[t] a

desegregation plan which w[ould] maintain and attract nonminority

members."  Id. at 41.  The initial phase of the capital improvements

plan cost $37 million.  Ibid.  The District Court also required the

KCMSD to present further capital improvements proposals "in order to

bring its facilities to a point comparable with the facilities in

neighboring suburban school districts."  Ibid.  In November, 1986, the

District Court approved further capital improvements in order to remove

the vestiges of racial segregation and "to . . . attract nonminority

students back to the KCMSD."  App. to Pet. for Cert. 133-134.



In September, 1987, the District Court adopted, for the most part,

KCMSD's long-range capital improvements plan at a cost in excess of $187

million.  Jenkins v. Missouri, 672 F.Supp. 400, 408 (WD Mo. 1987).  The

plan called for the renovation of approximately 55 schools, the closure

of 18 facilities, and the construction of 17 new schools.  Id. at 405. 

The District Court rejected what it referred to as the "`patch and

repair' approach proposed by the State" because it would not achieve

suburban comparability or the visual attractiveness sought by the Court

as it would result in floor coverings with unsightly sections of

mismatched carpeting and tile, and individual walls possessing different

shades of paint. Id. at 404.  The District Court reasoned that, if the

KCMSD schools underwent the limited renovation proposed by the State,

the schools would continue to be unattractive and substandard, and would

certainly serve as a deterrent to parents considering enrolling their

children in KCMSD schools. Id. at 405.  As of 1990, the District Court

had ordered $260 million in capital improvements.  Missouri v. Jenkins,

495 U.S. 33, 61 (1990) (Jenkins II) (KENNEDY, J., concurring in part and

concurring in judgment).  Since then, the total cost of capital

improvements ordered has soared to over $540 million.



As part of its desegregation plan, the District Court has ordered salary

assistance to the KCMSD.  In 1987, the District Court initially ordered

salary assistance only for teachers within the KCMSD.  Since that time,

however, the District Court has ordered salary assistance to all but

three of the approximately 5,000 KCMSD employees.  The total cost of

this component of the desegregation remedy since 1987 is over $200

million.  See Desegregation Expenses.



The District Court's desegregation plan has been described as the most

ambitious and expensive remedial program in the history of school

desegregation.  19 F.3d at 397 (Beam, J., dissenting from denial of

rehearing en banc).  The annual cost per pupil at the KCMSD far exceeds

that of the neighboring SSD's or of any school district in Missouri. 

Nevertheless, the KCMSD, which has pursued a "friendly adversary"

relationship with the plaintiffs, has continued to propose ever more

expensive programs.  As a result, the desegregation costs have escalated

and now are approaching an annual cost of $200 million.  These massive

expenditures have financed high schools in which every classroom will

have air conditioning, an alarm system, and 15 microcomputers; a

2,000-square-foot planetarium; green houses and vivariums; a 25-acre

farm with an airconditioned meeting room for 104 people; a Model United

Nations wired for language translation; broadcast capable radio and

television studios with an editing and animation lab; a temperature

controlled art gallery; movie editing and screening rooms; a

3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot

elementary school animal rooms for use in a zoo project; swimming pools;

and numerous other facilities. Jenkins II, 495 U.S. at 77 (Kennedy, J.,

concurring in part and concurring in judgment).  Not surprisingly, the

cost of this remedial plan has "far exceeded KCMSD's budget, or for that

matter, its authority to tax."  Id. at 60.  The State, through the

operation of joint and several liability, has borne the brunt of these

costs.  The District Court candidly has acknowledged that it has

"allowed the District planners to dream" and "provided the mechanism for

th[ose] dreams to be realized."  App. to Pet. for Cert. A-133.  In

short, the District Court "has gone to great lengths to provide KCMSD

with facilities and opportunities not available anywhere else in the

country."  Id. at A-115. II



With this background, we turn to the present controversy.  First, the

State has challenged the District Court's requirement that it fund

salary increases for KCMSD instructional and noninstructional staff. 

Id. at A-76 to A-93 (District Court's Order of June 15, 1992); id. at

A-94 to A-109 (District Court's Order of June 30, 1993); id. at A-110 to

A-121 (District Court's Order of July 30, 1993).  The State claimed that

funding for salaries was beyond the scope of the District Court's

remedial authority.  Id. at A-86.  Second, the State has challenged the

District Court's order requiring it to continue to fund the remedial

quality education programs for the 1992-1993 school year.  Id. at A-69

to A-75 (District Court's Order of June 17, 1992).  The State contended

that under Freeman v. Pitts, 503 U.S. 467 (1992), it had achieved

partial unitary status with respect to the quality education programs

already in place.  As a result, the State argued that the District Court

should have relieved it of responsibility for funding those programs.



The District Court rejected the State's arguments.  It first determined

that the salary increases were warranted because [h]igh quality

personnel are necessary not only to implement specialized desegregation

programs intended to "improve educational opportunities and reduce

racial isolation" . . .  but also to "ensure that there is no diminution

in the quality of its regular academic program." App. to Pet. for Cert.

A-87 (internal citations omitted).  Its "ruling [was] grounded in

remedying the vestiges of segregation by improving the desegregative

attractiveness of the KCMSD."  Id. at A-90.  The District Court did not

address the State's Freeman arguments; nevertheless, it ordered the

State to continue to fund the quality education programs for the

1992-1993 school year.  See App. to Pet. for Cert. A-70.



The Court of Appeals for the Eighth Circuit affirmed.  11 F.3d 755

(1993).  It rejected the State's argument that the salary increases did

not directly address and relate to the State's constitutional violation

and that "low teachers salaries d[id] not flow from any earlier

constitutional violations by the State."  Id. at 767.  In doing so, it

observed that, [i]n addition to compensating the victims, the remedy in

this case was also designed to reverse white flight by offering superior

educational opportunities. Ibid.; see also 13 F.3d 1170, 1172 (CA8 1993)

(affirming the District Court's June 30, 1993, and July 30, 1993,

orders).



The Court of Appeals concluded that the District Court implicitly had

rejected the State's Freeman arguments in spite of the fact that it had

failed "to articulate . . . even a conclusory rejection" of them.  11

F.3d at 765.  It looked to the District Court's comments from the bench

and its later orders to "illuminate the June 1992 order."  Id. at 761. 

The Court of Appeals relied on statements made by the District Court

during a May 28, 1992 hearing: The Court's goal was to integrate the

Kansas City, Missouri, School District to the maximum degree possible,

and all these other matters were elements to be used to try to integrate

the Kansas City, Missouri, schools so the goal is integration.  That's

the goal.  And a high standard of quality education.  The magnet

schools, the summer school program and all these programs are tied to

that goal, and until such time as that goal has been reached, then we

have not reached the goal. . . .  The goal is to integrate the Kansas

City, Missouri, School district.  So I think we are wasting our time. 2

App. 482 (emphasis added).  See 11 F.3d at 761.  Apparently, the Court

of Appeals extrapolated from the findings regarding the magnet school

program and later orders and imported those findings wholesale to reject

the State's request for a determination of partial unitary status as to

the quality education programs.  See id. at 761-762.  It found

significant the District Court's determination that although there had

been a trend of improvement in academic achievement, . . . the school

district was far from reaching its maximum potential because KCMSD is

still at or below national norms at many grade levels. Ibid.  It went on

to say that with respect to quality education, implementation of

programs in and of itself is not sufficient.  The test, after all, is

whether the vestiges of segregation, here the system-wide reduction in

student achievement, have been eliminated to the greatest extent

practicable.  The success of quality education programs must be measured

by their effect on the students, particularly those who have been the

victims of segregation. Id. at 766.



The Court of Appeals denied rehearing en banc, with five judges

dissenting.  19 F.3d at 395.  The dissent first examined the salary

increases ordered by the District Court and characterized the current

effort by the KCMSD and the American Federation of Teachers . . . aided

by the plaintiffs, to bypass the collective bargaining process as

"uncalled for" and "probably not an exercise reasonably related to the

constitutional violations found by the court."  Id. at 399.  The dissent

also agree[d] with the [S]tate that logic d[id] not directly relate the

pay of parking lot attendants, trash haulers and food handlers . . . to

any facet or phase of the desegregation plan or to the constitutional

violations. Ibid.



Second, the dissent believed that in evaluating whether the KCMSD had

achieved partial unitary status in its quality education programs, the

District Court and the panel had misrea[d] Freeman and create[d] a

hurdle to the withdrawal of judicial intervention from public education

that has no support in the law.  The district court has, with the

approbation of the panel, imbedded a student achievement goal measured

by annual standardized tests into its test of whether the KCMSD has

built a high-quality educational system sufficient to remedy past

discrimination.  The Constitution requires no such standard. Id. at 400.

 The dissent noted that "KCMSD students have in place a system that

offers more educational opportunity than anywhere in America," id. at

403, but that the District Court was "not satisfied that the District

has reached anywhere close to its maximum potential because the District

is still at or below national norms at many grade levels," ibid.

(emphasis added).  The dissent concluded that this case "as it now

proceeds, involves an exercise in pedagogical sociology, not

constitutional adjudication."  Id. at 404.



Because of the importance of the issues, we granted certiorari to

consider the following:  (1) whether the District Court exceeded its

constitutional authority when it granted salary increases to virtually

all instructional and noninstructional employees of the KCMSD, and (2)

whether the District Court properly relied upon the fact that student

achievement test scores had failed to rise to some unspecified level

when it declined to find that the State had achieved partial unitary

status as to the quality education programs.  512 U.S. ___ (1994). III



Respondents argue that the State may no longer challenge the District

Court's remedy, and, in any event, the propriety of the remedy is not

before the Court.  Brief for Respondent KCMSD et al. 40-49; Brief for

Respondent Jenkins et al. 23.  We disagree on both counts.  In Jenkins

II, we granted certiorari to review the manner in which the District

Court had funded this desegregation remedy.  495 U.S. at 37.  Because we

had denied certiorari on the State's challenge to review the scope of

the remedial order, we resisted the State's efforts to challenge the

scope of the remedy.  Id. at 53; cf. id. at 80 (KENNEDY, J., concurring

in part and concurring in judgment).  Thus, we neither "approv[ed]" nor

"disapprov[ed], the Court of Appeals' conclusion that the District

Court's remedy was proper."  Id. at 53.



Here, however, the State has challenged the District Court's approval of

across-the-board salary increases for instructional and noninstructional

employees as an action beyond its remedial authority.  Pet. for Cert. i.

 An analysis of the permissible scope of the District Court's remedial

authority is necessary for a proper determination of whether the order

of salary increases is beyond the District Court's remedial authority,

see Milliken I, 418 U.S. at  745, and thus, it is an issue subsidiary to

our ultimate inquiry.  Cf. Yee v. Escondido, 503 U.S. 519, 537 (1992). 

Given that the District Court's basis for its salary order was grounded

in "improving the desegregative attractiveness of the KCMSD,"  App. to

Pet. for Cert. A-90, we must consider the propriety of that reliance in

order to resolve properly the State's challenge to that order.  We

conclude that a challenge to the scope of the District Court's remedy is

fairly included in the question presented.  See this Court's Rule 14.1;

Procunier v. Navarette, 434 U.S. 555, 560, n. 6 (1978) ("Since

consideration of these issues is essential to analysis of the Court of

Appeals' [decision] we shall also treat these questions as subsidiary

issues `fairly comprised' by the question presented"); see also United

States v. Mendenhall, 446 U.S. 544,  n. 5 (1980) (opinion of Stewart,

J.) (Where the determination of a question "is essential to the correct

disposition of the other issues in the case, we shall treat it as

`fairly comprised' by the questions presented in the petition for

certiorari"); cf. Yee, supra, at



JUSTICE SOUTER argues that our decision to review the scope of the

District Court's remedial authority is both unfair and imprudent.  Post

at ___.  He claims that factors such as our failure to grant certiorari

on the State's challenge to the District Court's remedial authority in

1988 lulled [respondents] into addressing the case without sufficient

attention to the foundational issue, and their lack of attention has now

infected the Court's decision. Post at ___.  JUSTICE SOUTER concludes

that we have "decide[d] the issue without any warning to respondents." 

Post at ___.  These arguments are incorrect.



Of course, "[t]he denial of a writ of certiorari imports no expression

of opinion upon the merits of the case, as the bar has been told many

times."  United States v. Carver, 260 U.S. 482, 490 (1923).  A fortiori,

far from lulling respondents into a false sense of security, our

previous decision in Jenkins v. Missouri put respondents on notice that

the Court had not affirmed the validity of the District Court's remedy,

495 U.S. at 53, and that at least four Justices of the Court questioned

that remedy, id. at 75-80 (KENNEDY, J., concurring in part and

concurring in judgment).



With respect to the specific orders at issue here, the State has once

again challenged the scope of the District Court's remedial authority. 

The District Court was aware of this fact.  See App. to Pet. for Cert.

A-86 ("The State claims that the Court should not approve desegregation

funding for salaries because such funding would be beyond the scope of

the Court's remedial authority") (District Court's June 25, 1992,

order); id. at A-97 ("The State has argued repeatedly and currently on

appeal that the salary component is not a valid component of the

desegregation remedy") (District Court's June 30, 1993, order).  The

Court of Appeals also understood that the State had renewed this

challenge.  See 11 F.3d at 766 ("The State argues first that the salary

increase remedy sought exceeded that necessary to remedy the

constitutional violations, and alternatively, that if the district court

had lawful authority to impose the increases, it abused its discretion

in doing so"); id. at 767 ("The State's legal argument is that the

district court should have denied the salary increase funding because it

was contrary to Milliken II and Swann in that it does not directly

address and relate to the State's constitutional violation"); 13 F.3d at

1172 ("We reject the State's argument that the salary order is contrary

to Milliken II and Swann").  The State renewed this same challenge in

its petition for certiorari, Pet. for Cert. i, and argued here that the

District Court's salary orders were beyond the scope of its remedial

authority.  Brief for Petitioners 27-32; Reply Brief for Petitioners

6-12.  In the 100 pages of briefing provided by respondents, they have

argued that the State's challenge to the scope of the District Court's

remedial authority is not fairly presented and is meritless.  See Brief

for Respondent KCMSD et al. 40-49; Brief for Respondent Jenkins et al.

2-21, 44-49; cf. Reply Brief for Petitioners 2 ("[R]espondents . . .

urge the Court to dismiss the writ as improvidently granted.  This is

not surprising; respondents cannot defend the excesses of the courts

below").



In short, the State has challenged the scope of the District Court's

remedial authority.  The District Court, the Court of Appeals, and

respondents have recognized this to be the case.  Contrary to JUSTICE

SOUTER's arguments, there is no unfairness or imprudence in deciding

issues that have been passed upon below, are properly before us, and

have been briefed by the parties.  We turn to the questions presented.



Almost 25 years ago, in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402

U.S. 1 (1971), we dealt with the authority of a district court to

fashion remedies for a school district that had been segregated in law

in violation of the Equal Protection Clause of the Fourteenth Amendment.

 Although recognizing the discretion that must necessarily adhere in a

district court in fashioning a remedy, we also recognized the limits on

such remedial power: [E]limination of racial discrimination in public

schools is a large task, and one that should not be retarded by efforts

to achieve broader purposes lying beyond the jurisdiction of the school

authorities.  One vehicle can carry only a limited amount of baggage. 

It would not serve the important objective of Brown I to seek to use

school desegregation cases for purposes beyond their scope, although

desegregation of schools ultimately will have impact on other forms of

discrimination. Id. at 22-23.



Three years later, in Milliken I, supra, we held that a District Court

had exceeded its authority in fashioning interdistrict relief where the

surrounding school districts had not themselves been guilty of any

constitutional violation.  Id. at   We said that a desegregation remedy

is necessarily designed, as all remedies are, to restore the victims of

discriminatory conduct to the position they would have occupied in the

absence of such conduct. Id. at 746.  "[W]ithout an interdistrict

violation and interdistrict effect, there is no constitutional wrong

calling for an interdistrict remedy."  Id. at 745.  We also rejected

[t]he suggestion . . . that schools which have a majority of Negro

students are not "desegregated," whatever the makeup of the school

district's population and however neutrally the district lines have been

drawn and administered. Id. at 747, n. 22; see also Freeman, 503 U.S. at

474 ("[A] critical beginning point is the degree of racial imbalance in

the school district, that is to say a comparison of the proportion of

majority to minority students in individual schools with the proportions

of the races in the district as a whole").



Three years later, in Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken

II), we articulated a three-part framework derived from our prior cases

to guide district courts in the exercise of their remedial authority. In

the first place, like other equitable remedies, the nature of the

desegregation remedy is to be determined by the nature and scope of the

constitutional violation.  Swann v. Charlotte-Mecklenburg Board of

Education, 402 U.S. at 16.  The remedy must therefore be related to "the

condition alleged to offend the Constitution. . . ."  Milliken I, 418

U.S. at 738.  Second, the decree must indeed be remedial in nature, that

is, it must be designed as nearly as possible "to restore the victims of

discriminatory conduct to the position they would have occupied in the

absence of such conduct."  Id. at 746.  Third, the federal courts in

devising a remedy must take into account the interests of state and

local authorities in managing their own affairs, consistent with the

Constitution. Id. at (footnotes omitted).  We added that the principle

that the nature and scope of the remedy are to be determined by the

violation means simply that federal court decrees must directly address

and relate to the constitutional violation itself. Id. at   In applying

these principles, we have identified "student assignments, . . .

`faculty, staff, transportation, extracurricular activities and

facilities,'" as the most important indicia of a racially segregated

school system.  Board of Ed. of Oklahoma City Pub. Schools v. Dowell,

498 U.S. 237, 250 (1991) (quoting Green v. School Bd. of New Kent

County, 391 U.S. 430, 435 (1968)).



Because "federal supervision of local school systems was intended as a

temporary measure to remedy past discrimination," Dowell, supra, at 247,

we also have considered the showing that must be made by a school

district operating under a desegregation order for complete or partial

relief from that order.  In Freeman, we stated that [a]mong the factors

which must inform the sound discretion of the court in ordering partial

withdrawal are the following:  [1] whether there has been full and

satisfactory compliance with the decree in those aspects of the system

where supervision is to be withdrawn; [2] whether retention of judicial

control is necessary or practicable to achieve compliance with the

decree in other facets of the school system; and [3] whether the school

district has demonstrated, to the public and to the parents and students

of the once disfavored race, its good-faith commitment to the whole of

the courts' decree and to those provisions of the law and the

Constitution that were the predicate for judicial intervention in the

first instance. 503 U.S. at 491.   The ultimate inquiry is "whether the

[constitutional violator] ha[s] complied in good faith with the

desegregation decree since it was entered, and whether the vestiges of

past discrimination ha[ve] been eliminated to the extent practicable."

Id. at 492 (quoting Dowell, supra, at .



Proper analysis of the District Court's orders challenged here, then,

must rest upon their serving as proper means to the end of restoring the

victims of discriminatory conduct to the position they would have

occupied in the absence of that conduct and their eventual restoration

of "state and local authorities to the control of a school system that

is operating in compliance with the Constitution."  503 U.S. at 489.  We

turn to that analysis.



The State argues that the order approving salary increases is beyond the

District Court's authority because it was crafted to serve an

"interdistrict goal," in spite of the fact that the constitutional

violation in this case is "intradistrict" in nature.  Brief for

Petitioners 19.  "[T]he nature of the desegregation remedy is to be

determined by the nature and scope of the constitutional violation." 

Milliken II, supra, at 280; Pasadena City Bd. of Ed. v. Spangler, 427

U.S. 424, 434 (1976) ("`[T]here are limits' beyond which a court may not

go in seeking to dismantle a dual school system").  The proper response

to an intradistrict violation is an intradistrict remedy, see Milliken

I, 418 U.S. at  Milliken II, supra, at 280, that serves to eliminate the

racial identity of the schools within the effected school district by

eliminating, as far as practicable, the vestiges of de jure segregation

in all facets of their operations.  See Dowell, supra, at 250; see also

Swann, 402 U.S. at 18-19; Green, supra, at 435.



Here, the District Court has found, and the Court of Appeals has

affirmed, that this case involved no interdistrict constitutional

violation that would support interdistrict relief.  Jenkins II, 495 U.S.

at 37, n. 3 ("The District Court also found that none of the alleged

discriminatory actions had resulted in lingering interdistrict effects

and so dismissed the suburban school districts and denied interdistrict

relief"); id. at 76 (KENNEDY, J., concurring in part and concurring in

judgment) ("[T]here was no interdistrict constitutional violation that

would support mandatory interdistrict relief").  Thus, the proper

response by the District Court should have been to eliminate to the

extent practicable the vestiges of prior de jure segregation within the

KCMSD:  a system-wide reduction in student achievement and the existence

of 25 racially identifiable schools with a population of over 90% black

students.  639 F.Supp. at 24, 36.



The District Court and Court of Appeals, however, have felt that because

the KCMSD's enrollment remained 68.3% black, a purely intradistrict

remedy would be insufficient.  Id. at 38; Jenkins v. Missouri, 855 F.2d

1296, 1302 (CA8 1988) ("[V]oluntary interdistrict remedies may be used

to make meaningful integration possible in a predominantly minority

district").  But, as noted in Milliken I, supra, we have rejected the

suggestion that schools which have a majority of Negro students are not

"desegregated" whatever the racial makeup of the school district's

population and however neutrally the district lines have been drawn and

administered. Id. at 747, n. 22; see Milliken II, 433 U.S. at 280, n. 14

("[T]he Court has consistently held that the Constitution is not

violated by racial imbalance in the schools, without more"); Spangler,

supra, at 434.



Instead of seeking to remove the racial identity of the various schools

within the KCMSD, the District Court has set out on a program to create

a school district that was equal to or superior to the surrounding

SSD's.  Its remedy has focused on "desegregative attractiveness,"

coupled with "suburban comparability."  Examination of the District

Court's reliance on "desegregative attractiveness" and "suburban

comparability" is instructive for our ultimate resolution of the salary

order issue.



The purpose of desegregative attractiveness has been not only to remedy

the system-wide reduction in student achievement, but also to attract

nonminority students not presently enrolled in the KCMSD.  This remedy

has included an elaborate program of capital improvements, course

enrichment, and extracurricular enhancement not simply in the formerly

identifiable black schools, but in schools throughout the district.  The

District Court's remedial orders have converted every senior high

school, every middle school, and one-half of the elementary schools in

the KCMSD into "magnet" schools.  The District Court's remedial order

has all but made the KCMSD itself into a magnet district.



We previously have approved of intradistrict desegregation remedies

involving magnet schools.  See, e.g., Milliken II, supra, at 272. 

Magnet schools have the advantage of encouraging voluntary movement of

students within a school district in a pattern that aids desegregation

on a voluntary basis, without requiring extensive busing and redrawing

of district boundary lines.  Cf. Jenkins II, 495 U.S. at 59-60 (KENNEDY,

J., concurring in part and concurring in judgment) (citing Milliken II,

supra, at 272).  As a component in an intradistrict remedy, magnet

schools also are attractive because they promote desegregation while

limiting the withdrawal of white student enrollment that may result from

mandatory student reassignment.  See 639 F.Supp. at 37; cf. Scotland

Neck City Bd. of Ed., 407 U.S. 484, 491 (1972).



The District Court's remedial plan in this case, however, is not

designed solely to redistribute the students within the KCMSD in order

to eliminate racially identifiable schools within the KCMSD.  Instead,

its purpose is to attract nonminority students from outside the KCMSD

schools.  But this interdistrict goal is beyond the scope of the

intradistrict violation identified by the District Court.  In effect,

the District Court has devised a remedy to accomplish indirectly what it

admittedly lacks the remedial authority to mandate directly:  the

interdistrict transfer of students.  639 F.Supp. at 38 ("`[B]ecause of

restrictions on this Court's remedial powers in restructuring the

operations of local and state government entities,' any mandatory plan

which would go beyond the boundary lines of KCMSD goes far beyond the

nature and extent of the constitutional violation [that] this Court

found existed").



In Milliken I, we determined that a desegregation remedy that would

require mandatory interdistrict reassignment of students throughout the

Detroit metropolitan area was an impermissible interdistrict response to

the intradistrict violation identified.  418 U.S. at 745.  In that case,

the lower courts had ordered an interdistrict remedy because any less

comprehensive a solution than a metropolitan area plan would result in

an all black school system immediately surrounded by practically all

white suburban school systems, with an overwhelmingly white majority

population in the total metropolitan area." Id. at 735.  We held that,

before a district court could order an interdistrict remedy, there must

be a showing 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. Id. at 745.  Because the record

"contain[ed] evidence of de jure segregated conditions only in the

Detroit Schools" and there had been "no showing of significant violation

by the 53 outlying school districts and no evidence of interdistrict

violation or effect," we reversed the District Court's grant of

interdistrict relief.  Ibid.



Justice Stewart provided the Court's fifth vote and wrote separately to

underscore his understanding of the decision.  In describing the

requirements for imposing an "interdistrict" remedy, Justice Stewart

stated: Were it to be shown, for example, that state officials had

contributed to the separation of the races by drawing or redrawing

school district lines; by transfer of school units between districts; or

by purposeful, racially discriminatory use of state housing or zoning

laws, then a decree calling for the transfer of pupils across district

lines or for restructuring of district lines might well be appropriate. 

In this case, however, no such interdistrict violation was shown. Id. at

755 (concurring opinion) (citations omitted).  Justice Stewart concluded

that the Court properly rejected the District Court's interdistrict

remedy because [t]here were no findings that the differing racial

composition between schools in the city and in the outlying suburbs was

caused by official activity of any sort. Id. at 757.



What we meant in Milliken I by an interdistrict violation was a

violation that caused segregation between adjoining districts.  Nothing

in Milliken I suggests that the District Court in that case could have

circumvented the limits on its remedial authority by requiring the State

of Michigan, a constitutional violator, to implement a magnet program

designed to achieve the same interdistrict transfer of students that we

held was beyond its remedial authority.  Here, the District Court has

done just that:  created a magnet district of the KCMSD in order to

serve the interdistrict goal of attracting nonminority students from the

surrounding SSD's and redistributing them within the KCMSD.  The

District Court's pursuit of "desegregative attractiveness" is beyond the

scope of its broad remedial authority.  See Milliken II, 433 U.S. at

280.



Respondents argue that the District Court's reliance upon desegregative

attractiveness is justified in light of the District Court's statement

that segregation has "led to white flight from the KCMSD to suburban

districts."  1 App. 126; see Brief for Respondent KCMSD et al. 44-45,

and n. 28; Brief for Respondent Jenkins et al. 47-49.  The lower courts'

"findings" as to "white flight" are both inconsistent internally, and

inconsistent with the typical supposition, bolstered here by the record

evidence, that "white flight" may result from desegregation, not de jure

segregation.  The United States, as amicus curiae, argues that the

District Court's finding that de jure segregation in the KCMSD caused

white students to leave the system . . . is not inconsistent with the

district court's earlier conclusion that the suburban districts did

nothing to cause this white flight, and therefore could not be included

in a mandatory interdistrict remedy. Brief for United States as Amicus

Curiae 19, n. 2; see also post at ___.  But the District Court's earlier

findings, affirmed by the Court of Appeals, were not so limited:

[C]ontrary to the argument of [plaintiffs] that the [district court]

looked only to the culpability of the SSDs, the scope of the order is

far broader. . . .  It noted that only the schools in one district were

affected and that the remedy must be limited to that system.  In

examining the cause and effect issue, the court noted that "not only is

plaintiff's evidence here blurred as to cause and effect, there is no

`careful delineation of the extent of the effect.'" . . .  The district

court thus dealt not only with the issue whether the SSDs were

constitutional violators but also whether there were significant

interdistrict segregative effects. . . .  When it did so, it made

specific findings that negate current significant interdistrict effects,

and concluded that the requirements of Milliken had not been met.

Jenkins v. Missouri, 807 F.2d 657, 672 (CA8 1986) (affirming, by an

equally divided court, the District Court's findings and conclusion that

there was no interdistrict violation or interdistrict effect) (en banc).



In Freeman, we stated that [t]he vestiges of segregation that are the

concern of the law in a school case may be subtle and intangible, but

nonetheless they must be so real that they have a causal link to the de

jure violation being remedied. 503 U.S. at 496.  The record here does

not support the District Court's reliance on "white flight" as a

justification for a permissible expansion of its intradistrict remedial

authority through its pursuit of desegregative attractiveness.  See

Milliken I, 418 U.S. at 746; see also Dayton Bd. of Ed. v. Brinkman, 433

U.S. 406, 417 (1977) (Dayton I).



JUSTICE SOUTER claims that our holding effectively overrules Hills v.

Gautreaux, 425 U.S. 284 (1976).  See also Brief for American Civil

Liberties Union et al. as Amici Curiae 18-20.  In Gautreaux, the Federal

Department of Housing and Urban Development (HUD) was found to have

participated, along with a local housing agency, in establishing and

maintaining a racially segregated public housing program.  425 U.S. at  

After the Court of Appeals ordered "`the adoption of a comprehensive

metropolitan area plan,'" id. at 291, we granted certiorari to consider

the "permissibility in the light of [Milliken I] of `interdistrict

relief for discrimination in public housing in the absence of a finding

of an interdistrict violation.'"  Gautreaux, supra, at 292.  Because the

"relevant geographic area for the purposes of the [plaintiffs'] housing

options [was] the Chicago housing market, not the Chicago city limits,"

425 U.S. at 299, we concluded that "a metropolitan area remedy . . .

[was] not impermissible as a matter of law," id. at 306.  Cf. id. at

298, n. 13 (distinguishing Milliken I, in part, because prior cases had

established that racial segregation in schools is "to be dealt with in

terms of `an established geographic and administrative school system'").



In Gautreaux, we did not obligate the District Court to "subjec[t] HUD

to measures going beyond the geographical or political boundaries of its

violation."  Post at ___.  Instead, we cautioned that our holding

"should not be interpreted as requiring a metropolitan area order." 

Gautreaux, supra, at 306.  We reversed appellate factfinding by the

Court of Appeals that would have mandated a metropolitan area remedy,

see id. at  n. 11, and remanded the case back to the District Court

"`for additional evidence and for further consideration of the issue of

metropolitan area relief,'" id. at 306.



Our decision today is fully consistent with Gautreaux.  A district court

seeking to remedy an intradistrict violation that has not "directly

caused" significant interdistrict effects, Milliken I, supra, at 

exceeds its remedial authority if it orders a remedy with an

interdistrict purpose.  This conclusion follows directly from Milliken

II, decided one year after Gautreaux, where we reaffirmed the bedrock

principle that federal court decrees exceed appropriate limits if they

are aimed at eliminating a condition that does not violate the

Constitution or does not flow from such a violation. 433 U.S. at 282. 

In Milliken II, we also emphasized that federal courts in devising a

remedy must take into account the interests of state and local

authorities in managing their own affairs, consistent with the

Constitution. Id. at   Gautreaux, however, involved the imposition of a

remedy upon a federal agency.  See 425 U.S. at 292, n. 9.  Thus, it did

not raise the same federalism concerns that are implicated when a

federal court issues a remedial order against a State.  See Milliken II,

supra, at



The District Court's pursuit of "desegregative attractiveness" cannot be

reconciled with our cases placing limitations on a district court's

remedial authority.  It is certainly theoretically possible that the

greater the expenditure per pupil within the KCMSD, the more likely it

is that some unknowable number of nonminority students not presently

attending schools in the KCMSD will choose to enroll in those schools. 

Under this reasoning, however, every increased expenditure, whether it

be for teachers, noninstructional employees, books, or buildings, will

make the KCMSD in some way more attractive, and thereby perhaps induce

nonminority students to enroll in its schools.  But this rationale is

not susceptible to any objective limitation.  Cf. Milliken II, 433 U.S.

at 280 (remedial decree "must be designed as nearly as possible `to

restore the victims of discriminatory conduct to the position they would

have occupied in the absence of such conduct'").  This case provides

numerous examples demonstrating the limitless authority of the District

Court operating under this rationale.  See e.g., App. to Pet. for Cert.

A-115 (The District Court has recognized that it has "provide[d] the

KCMSD with facilities and opportunities not available anywhere else in

the country"); id. at A-140 ("The District has repeatedly requested that

the [District Court] provide extravagant programs based on the hopes

that they will succeed in the desegregation effort").  In short,

desegregative attractiveness has been used "as the hook on which to hang

numerous policy choices about improving the quality of education in

general within the KCMSD."  Jenkins II, 495 U.S. at 76 (Kennedy, J.,

concurring in part and concurring in judgment).



Nor are there limits to the duration of the District Court's

involvement.  The expenditures per pupil in the KCMSD currently far

exceed those in the neighboring SSD's.  19 F.3d at 399 (Beam, J.,

dissenting from denial of rehearing en banc) (per-pupil costs within the

SSD's, excluding capital costs, range from $2,854 to $5,956; per pupil

costs within the KCMSD, excluding capital costs, are $9,412); Brief for

Respondent KCMSD et al. 18, n. 5 (arguing that per pupil costs in the

KCMSD, excluding capital costs, are $7,665.18).  Sixteen years after

this litigation began, the District Court recognized that the KCMSD has

yet to offer a viable method of financing the "wonderful school system

being built."  App to Pet. for Cert. A-124; cf. Milliken II, supra, at

293 (Powell, J., concurring in judgment) ("Th[e] parties . . . have now

joined forces apparently for the purpose of extracting funds from the

state treasury").  Each additional program ordered by the District Court

-- and financed by the State -- to increase the "desegregative

attractiveness" of the school district makes the KCMSD more and more

dependent on additional funding from the State; in turn, the greater the

KCMSD's dependence on state funding, the greater its reliance on

continued supervision by the District Court.  But our cases recognize

that local autonomy of school districts is a vital national tradition,

Dayton I, supra, at 410, and that a district court must strive to

restore state and local authorities to the control of a school system

operating in compliance with the Constitution.  See Freeman, supra, at

489; Dowell, 498 U.S. at 247.



The District Court's pursuit of the goal of "desegregative

attractiveness" results in so many imponderables and is so far removed

from the task of eliminating the racial identifiability of the schools

within the KCMSD that we believe it is beyond the admittedly broad

discretion of the District Court.  In this posture, we conclude that the

District Court's order of salary increases, which was "grounded in

remedying the vestiges of segregation by improving the desegregative

attractiveness of the KCMSD," App. to Pet. for Cert. A-90, is simply too

far removed from an acceptable implementation of a permissible means to

remedy previous legally mandated segregation.  See Milliken II, supra,

at 280.



Similar considerations lead us to conclude that the District Court's

order requiring the State to continue to fund the quality education

programs because student achievement levels were still "at or below

national norms at many grade levels" cannot be sustained.  The State

does not seek from this Court a declaration of partial unitary status

with respect to the quality education programs.  Reply Brief for

Petitioners 3.  It challenges the requirement of indefinite funding of a

quality education program until national norms are met, based on the

assumption that while a mandate for significant educational improvement,

both in teaching and in facilities, may have been justified originally,

its indefinite extension is not.



Our review in this respect is needlessly complicated because the

District Court made no findings in its order approving continued funding

of the quality education programs.  See App. to Pet. for Cert. A-69 to

A-75.  Although the Court of Appeals later recognized that a

determination of partial unitary status requires "careful factfinding

and detailed articulation of findings," 11 F.3d at 765, it declined to

remand to the District Court.  Instead it attempted to assemble an

adequate record from the District Court's statements from the bench and

subsequent orders.  Id. at 761.  In one such order relied upon by the

Court of Appeals, the District Court stated that the KCMSD had not

reached anywhere close to its "maximum potential because the District is

still at or below national norms at many grade levels."  App. to Pet.

for Cert. A-131.



But this clearly is not the appropriate test to be applied in deciding

whether a previously segregated district has achieved partially unitary

status.  See Freeman, 503 U.S. at 491; Dowell, 498 U.S. at   The basic

task of the District Court is to decide whether the reduction in

achievement by minority students attributable to prior de jure

segregation has been remedied to the extent practicable.  Under our

precedents, the State and the KCMSD are "entitled to a rather precise

statement of [their] obligations under a desegregation decree."  Id. at

246.  Although the District Court has determined that "[s]egregation has

caused a system wide reduction in achievement in the schools of the

KCMSD," 639 F.Supp. at 24, it never has identified the incremental

effect that segregation has had on minority student achievement or the

specific goals of the quality education programs.  Cf. Dayton I, 433

U.S. at 420.{10}



In reconsidering this order, the District Court should apply our

three-part test from Freeman v. Pitts, supra, at 491.  The District

Court should consider that the State's role with respect to the quality

education programs has been limited to the funding, not the

implementation, of those programs.  As all the parties agree that

improved achievement on test scores is not necessarily required for the

State to achieve partial unitary status as to the quality education

programs, the District Court should sharply limit, if not dispense with,

its reliance on this factor.  Brief for Respondent KCMSD et al. 34-35;

Brief for Respondent Jenkins et al. 26.  Just as demographic changes

independent of de jure segregation will affect the racial composition of

student assignments, Freeman, supra, at  so too will numerous external

factors beyond the control of the KCMSD and the State affect minority

student achievement.  So long as these external factors are not the

result of segregation, they do not figure in the remedial calculus.  See

Spangler, 427 U.S. at 434; Swann, 402 U.S. at 22.  Insistence upon

academic goals unrelated to the effects of legal segregation

unwarrantably postpones the day when the KCMSD will be able to operate

on its own.



The District Court also should consider that many goals of its quality

education plan already have been attained:  the KCMSD now is equipped

with "facilities and opportunities not available anywhere else in the

country."  App. to Pet. for Cert. A-115.  KCMSD schools received an AAA

rating eight years ago, and the present remedial programs have been in

place for seven years.  See 19 F.3d at 401 (Beam, J., dissenting from

denial of rehearing en banc).  It may be that in education, just as it

may be in economics, a "rising tide lifts all boats," but the remedial

quality education program should be tailored to remedy the injuries

suffered by the victims of prior de jure segregation.  See Milliken II,

433 U.S. at 287.  Minority students in kindergarten through grade 7 in

the KCMSD always have attended AAA-rated schools; minority students in

the KCMSD that previously attended schools rated below AAA have since

received remedial education programs for a period of up to seven years.



On remand, the District Court must bear in mind that its end purpose is

not only "to remedy the violation" to the extent practicable, but also

"to restore state and local authorities to the control of a school

system that is operating in compliance with the Constitution."  Freeman,

supra, at 489.



The judgment of the Court of Appeals is reversed.



It is so ordered. O'CONNOR, J., concurring



JUSTICE O'CONNOR, concurring.



Because "[t]he mere fact that one question must be answered before

another does not insulate the former from Rule 14.1(a)," Lebron v.

National Railroad Passenger Corporation, 513 U.S. ___, ___ (1995)

(O'CONNOR, J., dissenting), I reject the State's contention that the

propriety of the District Court's remedy is fairly included in the

question whether student achievement is a valid measure of partial

unitary status as to the quality education program, Brief for

Petitioners 18.



The State, however, also challenges the District Court's order setting

salaries for all but 3 of the 5,000 persons employed by the Kansas City,

Missouri, School District (KCMSD).  In that order, the court stated: the

basis for this Court's ruling is grounded in remedying the vestiges of

segregation by improving the desegregative attractiveness of the KCMSD. 

In order to improve the desegregative attractiveness of the KCMSD, the

District must hire and retain high quality teachers, administrators and

staff. App. to Pet. for Cert. A-90.  The question presented in the

petition for certiorari asks whether the order comports with our cases

requiring that remedies "address and relate to the constitutional

violation and be tailored to cure the condition that offends the

Constitution," Pet. for Cert. i.  Thus, the State asks not only whether

salary increases are an appropriate means to achieve the District

Court's goal of desegregative attractiveness, but also whether that goal

itself legitimately relates to the predicate constitutional violation. 

The propriety of desegregative attractiveness as a remedial purpose,

therefore, is not simply an issue "prior to the clearly presented

question," Lebron, supra, at ___; it is an issue presented in the

question itself and, as such, is one that we appropriately and

necessarily consider in answering that question.



Beyond the plain words of the question presented, the State's opening

brief placed respondents on notice of its argument; fully 25 of the

State's 30 pages of discussion were devoted to desegregative

attractiveness and suburban comparability.  See Brief for Petitioners

19-45.  Such focus should not come as a surprise.  At every stage of

this litigation, as the Court notes, ante at ___, the State has

questioned whether the salary increase order exceeded the nature and

scope of the constitutional violation.  In disposing of the argument,

the lower courts explicitly relied on the need for desegregative

attractiveness and suburban comparability.  See, e.g., 13 F.3d 1170,

1172 (CA8 1993) ("The significant finding of the court with respect to

the earlier funding order was that the salary increases were essential

to comply with the court's desegregation order, and that high quality

teachers, administrators, and staff must be hired to improve the

desegregative attractiveness of KCMSD"); 11 F.3d 755, 767 (CA8 1993)

("In addition to compensating the victims, the remedy in this case was

also designed to reverse white flight by offering superior educational

opportunities").



Given the State's persistence and the specificity of the lower court

decisions, respondents would have ignored the State's arguments on white

flight and desegregative attractiveness at their own peril.  But they

did not do so, and instead engaged those arguments on the merits.  See

Brief for Respondent KCMSD et al. 44-49; Brief for Respondent Jenkins et

al. 41-49.  Perhaps the response was not made as artfully and completely

as the dissenting Justices would like, but it was made nevertheless;

whatever the cause of respondents' supposed failure to appreciate "what

was really at stake," post at ___ (SOUTER, J., dissenting), it is

certainly not lack of fair notice.



Given such notice, there is no unfairness to the Court resolving the

issue.  Unlike Bray v. Alexandria Women's Health Clinic, 506 U.S. ___

(1993), for example, where, in order to decide a particular question,

one would have had to find in the complaint claims that the respondents

themselves have admitted are not there; . . . resolve a question not

presented to or ruled on by any lower court; . . . revise the rule that

it is the Petition for Certiorari (not the Brief in Opposition and later

briefs) that determines the questions presented; and . . . penalize the

parties for not addressing an issue on which the Court specifically

denied supplemental briefing, id. at ___, in this case, one need only

read the opinions below to see that the question of desegregative

attractiveness was presented to and passed upon by the lower courts; the

petition for certiorari to see that it was properly presented; and the

briefs to see that it was fully argued on the merits.  If it could be

thought that deciding the question in Bray presented no "unfairness"

because it "was briefed, albeit sparingly, by the parties prior to the

first oral argument," id. at ___ (SOUTER, J., concurring in judgment in

part and dissenting in part), there should hardly be cause to cry foul

here.  The Court today transgresses no bounds of orderly adjudication in

resolving a genuine dispute that is properly presented for its decision.



On the merits, the Court's resolution of the dispute comports with Hills

v. Gautreaux, 425 U.S. 284 (1976).  There, we held that there is no "per

se rule that federal courts lack authority to order parties found to

have violated the Constitution to undertake remedial efforts beyond the

municipal boundaries of the city where the violation occurred," id. at

298.  This holding follows from our judgment in Milliken v. Bradley, 418

U.S. 717 (1974) (Milliken I) that an interdistrict remedy is

permissible, but only upon a showing "that there has been a

constitutional violation within one district that produces a significant

segregative effect in another district," id. at 745.  The per se rule

that the petitioner urged upon the Court in Gautreaux would have erected

an "arbitrary and mechanical" shield at the city limits, 425 U.S. at

300, and contradicted the holding in Milliken I that remedies may go

beyond the boundaries of the constitutional violator.  Gautreaux,

however, does not eliminate the requirement of Milliken I that such

territorial transgression is permissible only upon a showing that the

intradistrict constitutional violation produced significant

interdistrict segregative effects; if anything, our opinion repeatedly

affirmed that principle, see Gautreaux, supra, at  id. at 296, n. 12. 

More important for our purposes here, Gautreaux in no way contravenes

the underlying principle that the scope of desegregation remedies, even

those that are solely intradistrict, is "determined by the nature and

extent of the constitutional violation."  Milliken I, supra, at 744

(citing Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16

(1971)).  Gautreaux simply does not give federal courts a blank check to

impose unlimited remedies upon a constitutional violator.



As an initial matter, Gautreaux itself may not even have concerned a

case of interdistrict relief at least not in the sense that Milliken I

and other school desegregation cases have understood it.  Our opinion

made clear that the authority of the Department of Housing and Urban

Development (HUD) extends beyond the Chicago city limits, see Gautreaux,

supra, at  n. 14, and that HUD's own administrative practice treated the

Chicago metropolitan area as an undifferentiated whole, id. at 299. 

Thus, "[t]he relevant geographic area for purposes of the respondents'

housing options is the Chicago housing market, not the Chicago city

limits."  Ibid.  Because the relevant district is the greater

metropolitan area, drawing the remedial line at the city limits would be

"arbitrary and mechanical."  Id. at 300.



JUSTICE SOUTER, post at ___, makes much of how HUD phrased the question

presented:  whether it is appropriate to grant "`interdistrict relief

for discrimination in public housing in the absence of a finding of an

interdistrict violation.'"  Gautreaux, supra, at 292.  HUD obviously had

an interest in phrasing the question thus, since doing so emphasizes the

alleged deviation from Milliken I.  But the Court was free to reject

HUD's characterization of the relevant district, which it did: The

housing market area "usually extends beyond the city limits" and in the

larger markets "may extend into several adjoining counties." . . .  An

order against HUD and CHA regulating their conduct in the greater

metropolitan area will do no more than take into account HUD's expert

determination of the area relevant to the respondents' housing

opportunities and will thus be wholly commensurate with "the nature and

extent of the constitutional violation." Id. at (quoting Milliken I,

supra, at 744).  In light of this explicit holding, any suggestion that

Gautreaux dispensed with the predicates of Milliken I for interdistrict

relief rings hollow.



This distinction notwithstanding, the dissent emphasizes a footnote in

Gautreaux, in which we reversed the finding by the Court of Appeals that

"either an interdistrict violation or an interdistrict segregative

effect may have been present," 425 U.S. at 294, n. 11, and argues that

implicit in that holding is a suggestion that district lines may be

ignored even absent a showing of interdistrict segregative effects, post

at ___.  But no footnote is an island, entire of itself, and our

statement in footnote 11 must be read in context.  As explained above,

we rejected the petitioner's categorical suggestion that "court-ordered

metropolitan area relief in this case would be impermissible as a matter

of law," 425 U.S. at 305.  But the Court of Appeals had gone too far the

other way, suggesting that the District Court had to consider

metropolitan area relief because the conditions of Milliken I -- i. e.,

interdistrict violation or significant interdistrict segregative effects

-- had been established as a factual matter.  We reversed these

ill-advised findings by the appellate court in order to preserve to the

District Court its proper role, acknowledged by the dissent, post at

___, n. 10, of finding the necessary facts and exercising its discretion

accordingly.  Indeed, in footnote 11 itself, we repeated the requirement

of a "significant segregative effect in another district," Milliken I,

supra, at 745, and held that the Court of Appeals' "unsupported

speculation falls far short of the demonstration" required.  Gautreaux,

supra, at 295, n. 11.  There would have been little need to overrule the

Court of Appeals expressly on these factual matters if they were indeed

irrelevant.



It is this reading of Hills v. Gautreaux -- as an affirmation of, not a

deviation from, Milliken I -- that the Court of Appeals itself adopted

in an earlier phase of this litigation: Milliken and Hills make clear

that we may grant interdistrict relief only to remedy a constitutional

violation by the SSD [suburban school district], or to remedy an

interdistrict effect in the SSD caused by a constitutional violation in

KCMSD. Jenkins v. Missouri, 807 F.2d 657, 672 (CA8 1986) (en banc). 

Perhaps Gautreaux was "mentioned only briefly" by the respondents, post

at ___, because the case may actually lend support to the State's

argument.



Absent Gautreaux, the dissent hangs on the semantic distinction that the

District Court did not mean by an "intradistrict violation" what the

Court apparently means by it today.  The District Court meant that the

violation within the KCMSD had not led to segregation outside of it, and

that no other school districts had played a part in the violation.  It

did not mean that the violation had not produced effects of any sort

beyond the district. Post at ___.  The relevant inquiry under Milliken I

and Gautreaux, however, is not whether the intradistrict violation

"produced effects of any sort beyond the district," but rather whether

such violation caused "significant segregative effects" across district

boundaries, Milliken I, supra, at 745.  When the Court of Appeals

affirmed the District Court's initial remedial order, it specifically

stated that the District Court dealt not only with the issue of whether

the SSDs [suburban school districts] were constitutional violators, but

also whether there were significant interdistrict segregative effects. .

. .  When it did so, it made specific findings that negate current

significant interdistrict effects, and concluded that the requirements

of Milliken had not been met. Jenkins v. Missouri, 807 F.2d at 672. 

This holding is unambiguous.  Neither the legal responsibility for nor

the causal effects of KCMSD's racial segregation transgressed its

boundaries, and, absent such interdistrict violation or segregative

effects, Milliken and Gautreaux do not permit a regional remedial plan.



JUSTICE SOUTER, however, would introduce a different level of ambiguity,

arguing that the District Court took a limited view of what effects are

segregative: while white flight would have produced significant effects

in other school districts, in the form of greatly increased numbers of

white students, those effects would not have been segregative beyond the

KCMSD, as the departing students were absorbed into wholly unitary

systems. Post at ___.  Even if accurate, this characterization of the

District Court's findings would be of little significance as to its

authority to order interdistrict relief.  Such remedy is appropriate

only "to eliminate the interdistrict segregation directly caused by the

constitutional violation," Milliken I, supra, at 745.  Whatever effects

KCMSD's constitutional violation may be ventured to have had on the

surrounding districts, those effects would justify interdistrict relief

only if they were "segregative beyond the KCMSD."



School desegregation remedies are intended, as all remedies are, to

restore the victims of discriminatory conduct to the position they would

have occupied in the absence of such conduct. Milliken I, 418 U.S. at

746.  In the paradigmatic case of an interdistrict violation, where

district boundaries are drawn on the basis of race, a regional remedy is

appropriate to ensure integration across district lines.  So too where

surrounding districts contribute to the constitutional violation by

affirmative acts intended to segregate the races -- e. g., where those

districts "arrang[e] for white students residing in the Detroit District

to attend schools in Oakland and Macomb Counties," id. at   Milliken I,

of course, permits interdistrict remedies in these instances of

interdistrict violations.  Beyond that, interdistrict remedies are also

proper where "there has been a constitutional violation within one

district that produces a significant segregative effect in another

district."  Id. at 745.  Such segregative effect may be present where a

predominantly black district accepts black children from adjacent

districts, see id. at 750, or perhaps even where the fact of

intradistrict segregation actually causes whites to flee the district,

cf. Gautreaux, 425 U.S. at 295, n. 11, for example, to avoid

discriminatorily underfunded schools-and such actions produce regional

segregation along district lines.  In those cases, where a purely

intradistrict violation has caused a significant interdistrict

segregative effect, certain interdistrict remedies may be appropriate. 

Where, however, the segregative effects of a district's constitutional

violation are contained within that district's boundaries, there is no

justification for a remedy that is interdistrict in nature and scope.



Here, where the District Court found that KCMSD students attended

schools separated by their race and that facilities have "literally

rotted," Jenkins v. Missouri, 672 F.Supp. 400, 411 (WD Mo. 1987), the

district court of course should order restorations and remedies that

would place previously segregated black KCMSD students at par with their

white KCMSD counterparts.  The District Court went further, however, and

ordered certain improvements to KCMSD as a whole, including schools that

were not previously segregated; these district-wide remedies may also be

justified (the State does not argue the point here) in light of the

finding that segregation caused "a system wide reduction in student

achievement in the schools of the KCMSD," Jenkins v. Missouri, 639

F.Supp. 19, 24 (WD Mo. 1985).  Such remedies obviously may benefit some

who did not suffer under -- and, indeed, may have even profited from --

past segregation.  There is no categorical constitutional prohibition on

nonvictims enjoying the collateral, incidental benefits of a remedial

plan designed "to restore the victims of discriminatory conduct to the

position they would have occupied in the absence of such conduct." 

Milliken I, supra, at 746.  Thus, if restoring KCMSD to unitary status

would attract whites into the school district, such a reversal of the

white exodus would be of no legal consequence.



What the District Court did in this case, however, and how it

transgressed the constitutional bounds of its remedial powers, is to

make desegregative attractiveness the underlying goal of its remedy for

the specific purpose of reversing the trend of white flight.  However

troubling that trend may be, remedying it is within the District Court's

authority only if it is "directly caused by the constitutional

violation."  Id. at 745.  The Court and the dissent attempt to reconcile

the different statements by the lower courts as to whether white flight

was caused by segregation or desegregation.  See ante at ___; post at

___.  One fact, however, is uncontroverted.  When the District Court

found that KCMSD was racially segregated, the constitutional violation

from which all remedies flow in this case, it also found that there was

neither an interdistrict violation nor significant interdistrict

segregative effects.  See Jenkins v. Missouri, 807 F.2d at 672; ante at

___.  Whether the white exodus that has resulted in a school district

that is 68% black was caused by the District Court's remedial orders or

by natural, if unfortunate, demographic forces, we have it directly from

the District Court that the segregative effects of KCMSD's

constitutional violation did not transcend its geographical boundaries. 

In light of that finding, the District Court cannot order remedies

seeking to rectify regional demographic trends that go beyond the nature

and scope of the constitutional violation.



This case, like other school desegregation litigation, is concerned with

the elimination of the discrimination inherent in the dual school

systems, not with myriad factors of human existence which can cause

discrimination in a multitude of ways on racial, religious, or ethnic

grounds. Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 22

(1971).  Those myriad factors are not readily corrected by judicial

intervention, but are best addressed by the representative branches;

time and again, we have recognized the ample authority legislatures

possess to combat racial injustice, see, e. g., Wisconsin v. Mitchell,

508 U.S. ___, ___ (1993); Jones v. Alfred H. Mayer Co, 392 U.S. 409,

(1968); Katzenbach v. Morgan, 384 U.S. 641, 651 (1966); South Carolina

v. Katzenbach, 383 U.S. 301, 326 (1966).  It is true that where such

legislative efforts classify persons on the basis of their race, we have

mandated strict judicial scrutiny to ensure that the personal right to

equal protection of the laws has not been infringed.  Richmond v. J. A.

Croson Co, 488 U.S. 469, (1989) (plurality opinion).  But it is not true

that strict scrutiny is "strict in theory, but fatal in fact," Fullilove

v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in

judgment); cf. post at ___ (THOMAS, J., concurring).  It is only by

applying strict scrutiny that we can distinguish between

unconstitutional discrimination and narrowly tailored remedial programs

that legislatures may enact to further the compelling governmental

interest in redressing the effects of past discrimination.



Courts, however, are different.  The necessary restrictions on our

jurisdiction and authority contained in Article III of the Constitution

limit the judiciary's institutional capacity to prescribe palliatives

for societal ills.  The unfortunate fact of racial imbalance and bias in

our society, however pervasive or invidious, does not admit of judicial

intervention absent a constitutional violation.  Thus, even though the

Civil War Amendments altered the balance of authority between federal

and state legislatures, see Ex parte Virginia, 100 U.S. 339, 345 (1880),

JUSTICE THOMAS cogently observes that what the federal courts cannot do

at the federal level they cannot do against the States; in either case,

Article III courts are constrained by the inherent constitutional

limitations on their powers. Post at ___.  Unlike Congress, which enjoys

"`discretion in determining whether and what legislation is needed to

secure the guarantees of the Fourteenth Amendment,'" Croson, 488 U.S. at

490 (quoting Katzenbach v. Morgan, 384 U.S. at 651), federal courts have

no comparable license, and must always observe their limited judicial

role.  Indeed, in the school desegregation context, federal courts are

specifically admonished to "take into account the interests of state and

local authorities in managing their own affairs," Milliken v. Bradley,

433 U.S. 267, 281 (1977) (Milliken II), in light of the intrusion into

the area of education, "where States historically have been sovereign,"

United States v. Lopez, 514 U.S. ___, ___ (1995), and "to which States

lay claim by right of history and expertise," id. at ___ (KENNEDY, J.,

concurring).



In this case, it may be the "myriad factors of human existence," Swann,

supra, at 22, that have prompted the white exodus from KCMSD, and the

District Court cannot justify its transgression of the above

constitutional principles simply by invoking desegregative

attractiveness.  The Court today discusses desegregative attractiveness

only insofar as it supports the salary increase order under review, see

ante at ___, and properly refrains from addressing the propriety of all

the remedies that the District Court has ordered, revised, and extended

in the 18-year history of this case.  These remedies may also be

improper to the extent that they serve the same goals of desegregative

attractiveness and suburban comparability that we hold today to be

impermissible, and, conversely, the District Court may be able to

justify some remedies without reliance on these goals.  But these are

questions that the Court rightly leaves to be answered on remand.  For

now, it is enough to affirm the principle that "the nature of the

desegregation remedy is to be determined by the nature and scope of the

constitutional violation."  Milliken II, supra, at 280.



For these reasons, I join the opinion of the Court. THOMAS, J.,

concurring



JUSTICE THOMAS, concurring.



It never ceases to amaze me that the courts are so willing to assume

that anything that is predominantly black must be inferior.  Instead of

focusing on remedying the harm done to those black schoolchildren

injured by segregation, the District Court here sought to convert the

Kansas City, Missouri, School District (KCMSD) into a "magnet district"

that would reverse the "white flight" caused by desegregation.  In this

respect, I join the Court's decision concerning the two remedial issues

presented for review.  I write separately, however, to add a few

thoughts with respect to the overall course of this litigation.  In

order to evaluate the scope of the remedy, we must understand the scope

of the constitutional violation and the nature of the remedial powers of

the federal courts.



Two threads in our jurisprudence have produced this unfortunate

situation, in which a District Court has taken it upon itself to

experiment with the education of the KCMSD's black youth.  First, the

court has read our cases to support the theory that black students

suffer an unspecified psychological harm from segregation that retards

their mental and educational development.  This approach not only relies

upon questionable social science research, rather than constitutional

principle, but it also rests on an assumption of black inferiority. 

Second, we have permitted the federal courts to exercise virtually

unlimited equitable powers to remedy this alleged constitutional

violation.  The exercise of this authority has trampled upon principles

of federalism and the separation of powers and has freed courts to

pursue other agendas unrelated to the narrow purpose of precisely

remedying a constitutional harm. I A



The mere fact that a school is black does not mean that it is the

product of a constitutional violation.  A "racial imbalance does not

itself establish a violation of the Constitution."  United States v.

Fordice, 505 U.S. ___, ___ (1992) (THOMAS, J., concurring).  Instead, in

order to find unconstitutional segregation, we require that plaintiffs

prove all of the essential elements of de jure segregation -- that is,

stated simply, a current condition of segregation resulting from

intentional state action directed specifically to the [allegedly

segregated] schools. Keyes v. School Dist. No. 1, Denver, 413 U.S. 189,

(1973) (emphasis added).  "[T]he differentiating factor between de jure

segregation and so-called de facto segregation . . . is purpose or

intent to segregate."  Id. at 208 (emphasis in original).



In the present case, the District Court inferred a continuing

constitutional violation from two primary facts:  the existence of de

jure segregation in the KCMSD prior to 1954, and the existence of de

facto segregation today.  The District Court found that in 1954, the

KCMSD operated 16 segregated schools for black students, and that, in

1974, 39 schools in the district were more than 90% black. 

Desegregation efforts reduced this figure somewhat, but the District

Court stressed that 24 schools remained "racially isolated," that is,

more than 90% black, in 1983-1984.  Jenkins v. Missouri, 593 F.Supp.

1485, 1492-1493 (WD Mo. 1984).  For the District Court, it followed that

the KCMSD had not dismantled the dual system entirely.  Id. at 1493. 

The District Court also concluded that, because of the KCMSD's failure

to "become integrated on a system-wide basis," the dual system still

exerted "lingering effects" upon KCMSD black students, whose "general

attitude of inferiority" produced "low achievement . . . which

ultimately limits employment opportunities and causes poverty."  Id. at

1492.



Without more, the District Court's findings could not have supported a

finding of liability against the state.  It should by now be clear that

the existence of one-race schools is not, by itself, an indication that

the State is practicing segregation.  See, e.g., Swann v.

Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 26 (1971); Pasadena City

Bd. of Ed. v. Spangler, 427 U.S. 424, (1976); Freeman v. Pitts, 503 U.S.

467, (1992).  The continuing "racial isolation" of schools after de jure

segregation has ended may well reflect voluntary housing choices or

other private decisions.  Here, for instance, the demography of the

entire KCMSD has changed considerably since 1954.  Though blacks

accounted for only 18.9% of KCMSD's enrollment in 1954, by 1983-1984,

the school district was 67.7% black.  593 F.Supp. at 1492, 1495.  That

certain schools are overwhelmingly black in a district that is now more

than two-thirds black is hardly a sure sign of intentional state action.



In search of intentional state action, the District Court linked the

State and the dual school system of 1984 in two ways.  First, the Court

found that, "[i]n the past," the State had placed its "imprimatur on

racial discrimination."  As the Court explained, laws from the Jim Crow

era created "an atmosphere in which . . . private white individuals

could justify their bias and prejudice against blacks," with the

possible result that private realtors, bankers, and insurers engaged in

more discriminatory activities than would otherwise have occurred.  593

F.Supp. at 1503.  But the District Court itself acknowledged that the

State's alleged encouragement of private discrimination was a fairly

tenuous basis for finding liability.  Ibid.  The District Court

therefore rested the State's liability on the simple fact that the State

had intentionally created the dual school system before 1954, and had

failed to fulfill "its affirmative duty of disestablishing a dual school

system subsequent to 1954."  Id. at 1504.  According to the District

Court, the schools whose student bodies were more than 90% black

constituted "vestiges" of the prior de jure segregation, which the State

and the KCMSD had an obligation to eliminate.  Id. at 1504, 1506. 

Later, in the course of issuing its first "remedial" order, the District

Court added that a "system wide reduction in student achievement in the

schools of . . . KCMSD" was also a vestige of the prior de jure

segregation.  Jenkins v. Missouri, 639 F.Supp. 19, 24 (WD Mo. 1985)

(emphasis deleted).  In a subsequent order, the District Court indicated

that post-1954 "white flight" was another vestige of the pre-1954

segregated system.  1 App. 126.



In order for a "vestige" to supply the ground for an exercise of

remedial authority, it must be clearly traceable to the dual school

system.  The vestiges of segregation that are the concern of the law in

a school case may be subtle and intangible, but nonetheless they must be

so real that they have a causal link to the de jure violation being

remedied. Freeman v. Pitts, 503 U.S. at 406.  District Courts must not

confuse the consequences of de jure segregation with the results of

larger social forces or of private decisions. It is simply not always

the case that demographic forces causing population change bear any real

and substantial relation to a de jure violation. Ibid.; accord, id. at

501 (SCALIA, J., concurring);  Columbus Bd. of Ed. v. Penick, 443 U.S.

449, 512 (1979) (REHNQUIST, J., dissenting); Pasadena City Bd. of Ed. v.

Spangler, supra, at   As state-enforced segregation recedes farther into

the past, it is more likely that "these kinds of continuous and massive

demographic shifts," Freeman, 503 U.S. at 495, will be the real source

of racial imbalance or of poor educational performance in a school

district.  And as we have emphasized,  "[i]t is beyond the authority and

beyond the practical ability of the federal courts to try to counteract"

these social changes.  Ibid.



When a district court holds the State liable for discrimination almost

30 years after the last official state action, it must do more than show

that there are schools with high black populations or low test scores. 

Here, the district judge did not make clear how the high black

enrollments in certain schools were fairly traceable to the State of

Missouri's actions.  I do not doubt that Missouri maintained the

despicable system of segregation until 1954.  But I question the

District Court's conclusion that because the State had enforced

segregation until 1954, its actions, or lack thereof, proximately caused

the "racial isolation" of the predominantly black schools in 1984.  In

fact, where, as here, the finding of liability comes so late in the day,

I would think it incumbent upon the District Court to explain how more

recent social or demographic phenomena did not cause the "vestiges." 

This the District Court did not do. B



Without a basis in any real finding of intentional government action,

the District Court's imposition of liability upon the State of Missouri

improperly rests upon a theory that racial imbalances are

unconstitutional.  That is, the court has indulged the presumption,

often irrebuttable in practice, that a presently observed [racial]

imbalance has been proximately caused by intentional state action during

the prior de jure era. United States v. Fordice, 505 U.S. at ___

(THOMAS, J., concurring) (citing Dayton Bd. of Ed. v. Brinkman, 443 U.S.

526, 537 (1979), and Keyes v. School Dist. No. 1, 413 U.S. at 211).  In

effect, the court found that racial imbalances constituted an ongoing

constitutional violation that continued to inflict harm on black

students.  This position appears to rest upon the idea that any school

that is black is inferior, and that blacks cannot succeed without the

benefit of the company of whites.



The District Court's willingness to adopt such stereotypes stemmed from

a misreading of our earliest school desegregation case.  In Brown v.

Board of Education, 347 U.S. 483 (1954) (Brown I), the Court noted

several psychological and sociological studies purporting to show that

de jure segregation harmed black students by generating "a feeling of

inferiority" in them.  Seizing upon this passage in Brown I, the

District Court asserted that "forced segregation ruins attitudes and is

inherently unequal."  593 F.Supp. at 1492.  The District Court suggested

that this inequality continues in full force even after the end of de

jure segregation: The general attitude of inferiority among blacks

produces low achievement which ultimately limits employment

opportunities and causes poverty.  While it may be true that poverty

results in low achievement regardless of race, it is undeniable that

most poverty-level families are black.  The District stipulated that as

of 1977 they had not eliminated all the vestiges of the prior dual

system.  The Court finds the inferior education indigenous of the

state-compelled dual school system has lingering effects in the [KCMSD].

Ibid. (citations omitted).  Thus, the District Court seemed to believe

that black students in the KCMSD would continue to receive an "inferior

education" despite the end of de jure segregation, as long as de facto

segregation persisted.  As the District Court later concluded,

compensatory educational programs were necessary "as a means of

remedying many of the educational problems which go hand in hand with

racially isolated minority student populations."  639 F.Supp. at 25. 

Such assumptions and any social science research upon which they rely

certainly cannot form the basis upon which we decide matters of

constitutional principle.



It is clear that the District Court misunderstood the meaning of Brown

I.  Brown I did not say that "racially isolated" schools were inherently

inferior; the harm that it identified was tied purely to de jure

segregation, not de facto segregation.  Indeed, Brown I itself did not

need to rely upon any psychological or social-science research in order

to announce the simple, yet fundamental truth that the Government cannot

discriminate among its citizens on the basis of race.  See McConnell, 

Originalism and the Desegregation Decisions, 81 Va. L.Rev. 947 (1995). 

As the Court's unanimous opinion indicated:  "[I]n the field of public

education, the doctrine of `separate but equal' has no place.  Separate

educational facilities are inherently unequal."  Brown I, 347 U.S. at

495.  At the heart of this interpretation of the Equal Protection Clause

lies the principle that the Government must treat citizens as

individuals, and not as members of racial, ethnic or religious groups. 

It is for this reason that we must subject all racial classifications to

the strictest of scrutiny, which (aside from two decisions rendered in

the midst of wartime, see Hirabayashi v. United States, 320 U.S. 81

(1943); Korematsu v. United States, 323 U.S. 214 (1944)) has proven

automatically fatal.



Segregation was not unconstitutional because it might have caused

psychological feelings of inferiority.  Public school systems that

separated blacks and provided them with superior educational resources

-- making blacks "feel" superior to whites sent to lesser schools --

would violate the Fourteenth Amendment whether or not the white students

felt stigmatized, just as do school systems in which the positions of

the races are reversed.  Psychological injury or benefit is irrelevant

to the question whether state actors have engaged in intentional

discrimination -- the critical inquiry for ascertaining violations of

the Equal Protection Clause.  The judiciary is fully competent to make

independent determinations concerning the existence of state action

without the unnecessary and misleading assistance of the social

sciences.



Regardless of the relative quality of the schools, segregation violated

the Constitution because the State classified students based on their

race.  Of course, segregation additionally harmed black students by

relegating them to schools with substandard facilities and resources. 

But neutral policies, such as local school assignments, do not offend

the Constitution when individual private choices concerning work or

residence produce schools with high black populations.  See Keyes v.

School Dist. No. 1, 413 U.S. at 211.  The Constitution does not prevent

individuals from choosing to live together, to work together, or to send

their children to school together, so long as the State does not

interfere with their choices on the basis of race.



Given that desegregation has not produced the predicted leaps forward in

black educational achievement, there is no reason to think that black

students cannot learn as well when surrounded by members of their own

race as when they are in an integrated environment.  Indeed, it may very

well be that what has been true for historically black colleges is true

for black middle and high schools.  Despite their origins in "the

shameful history of state-enforced segregation," these institutions can

be "both a source of pride to blacks who have attended them and a source

of hope to black families who want the benefits of . . . learning for

their children." Fordice, 505 U.S. at ___ (THOMAS, J., concurring). 

Because of their "distinctive histories and traditions," id. at ___,

black schools can function as the center and symbol of black

communities, and provide examples of independent black leadership,

success, and achievement.



Thus, even if the District Court had been on firmer ground in

identifying a link between the KCMSD's pre-1954 de jure segregation and

the present "racial isolation" of some of the district's schools, mere

de facto segregation (unaccompanied by discriminatory inequalities in

educational resources) does not constitute a continuing harm after the

end of de jure segregation.  "Racial isolation" itself is not a harm;

only state-enforced segregation is.  After all, if separation itself is

a harm, and if integration therefore is the only way that blacks can

receive a proper education, then there must be something inferior about

blacks.  Under this theory, segregation injures blacks because blacks,

when left on their own, cannot achieve.  To my way of thinking, that

conclusion is the result of a jurisprudence based upon a theory of black

inferiority.



This misconception has drawn the courts away from the important goal in

desegregation.  The point of the Equal Protection Clause is not to

enforce strict race-mixing, but to ensure that blacks and whites are

treated equally by the State without regard to their skin color.  The

lower courts should not be swayed by the easy answers of social science,

nor should they accept the findings, and the assumptions, of sociology

and psychology at the price of constitutional principle. II



We have authorized the district courts to remedy past de jure

segregation by reassigning students in order to eliminate or decrease

observed racial imbalances, even if present methods of pupil assignment

are facially neutral.  See Swann v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 1 (1971); Green v. School Bd. of New Kent County, 391 U.S. 430

(1968).  The District Court here merely took this approach to its

logical next step.  If racial proportions are the goal, then schools

must improve their facilities to attract white students until the

district's racial balance is restored to the "right" proportions.  Thus,

fault for the problem we correct today lies not only with a twisted

theory of racial injuries, but also with our approach to the remedies

necessary to correct racial imbalances.



The District Court's unwarranted focus on the psychological harm to

blacks and on racial imbalances has been only half of the tale.  Not

only did the court subscribe to a theory of injury that was predicated

on black inferiority, it also married this concept of liability to our

expansive approach to remedial powers.  We have given the federal courts

the freedom to use any measure necessary to reverse problems-such as

racial isolation or low educational achievement-that have proven

stubbornly resistant to government policies.  We have not permitted

constitutional principles such as federalism or the separation of powers

to stand in the way of our drive to reform the schools.  Thus, the

District Court here ordered massive expenditures by local and state

authorities, without congressional or executive authorization and

without any indication that such measures would attract whites back to

KCMSD or raise KCMSD test scores.  The time has come for us to put the

genie back in the bottle. A



The Constitution extends "[t]he judicial Power of the United States" to

"all Cases, in Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made . . . under their Authority." 

Art. III,  1, 2.  I assume for purposes of this case that the remedial

authority of the federal courts is inherent in the "judicial Power," as

there is no general equitable remedial power expressly granted by the

Constitution or by statute.  As with any inherent judicial power,

however, we ought to be reluctant to approve its aggressive or

extravagant use, and instead we should exercise it in a manner

consistent with our history and traditions.  See Chambers v. NASCO,

Inc., 501 U.S. 32, 63-76 (1991) (KENNEDY, J., dissenting); Young v.

United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, (1987)

(SCALIA, J., concurring in judgment).



Motivated by our worthy desire to eradicate segregation, however, we

have disregarded this principle and given the courts unprecedented

authority to shape a remedy in equity.  Although at times we have

invalidated a decree as beyond the bounds of an equitable remedy, see

Milliken v. Bradley, 418 U.S. 717 (1974) (Milliken I), these instances

have been far outnumbered by the expansions in the equity power.  In

United States v. Montgomery Cty. Bd. of Ed., 395 U.S. 225 (1969), for

example, we allowed federal courts to desegregate faculty and staff

according to specific mathematical ratios, with the ultimate goal that

each school in the system would have roughly the same proportions of

white and black faculty.  In Swann v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 1 (1971), we permitted federal courts to order busing, to set

racial targets for school populations, and to alter attendance zones. 

And in Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken II), we

approved the use of remedial or compensatory education programs paid for

by the State.



In upholding these court-ordered measures, we indicated that trial

judges had virtually boundless discretion in crafting remedies once they

had identified a constitutional violation.  As Swann put it, "[o]nce a

right and a violation have been shown, the scope of a district court's

equitable powers to remedy past wrongs is broad, for breadth and

flexibility are inherent in equitable remedies."  402 U.S. at 15.  We

did say that "the nature of the violation determines the scope of the

remedy," id. at 16, but our very next sentence signaled how weak that

limitation was: [i]n default by the school authorities of their

obligation to proffer acceptable remedies, a district court has broad

power to fashion a remedy that will assure a unitary school system.

Ibid.



It is perhaps understandable that we permitted the lower courts to

exercise such sweeping powers.  Although we had authorized the federal

courts to work toward "a system of determining admission to the public

schools on a nonracial basis" in Brown v. Board of Education, 349 U.S.

294, (1955) (Brown II), resistance to Brown I produced little

desegregation by the time we decided Green v. School Board of New Kent

County, supra.  Our impatience with the pace of desegregation and with

the lack of a good faith effort on the part of school boards led us to

approve such extraordinary remedial measures.  But such powers should

have been temporary and used only to overcome the widespread resistance

to the dictates of the Constitution.  The judicial overreaching we see

before us today perhaps is the price we now pay for our approval of such

extraordinary remedies in the past.



Our prior decision in this litigation suggested that we would approve

the continued use of these expansive powers even when the need for their

exercise had disappeared.  In Missouri v. Jenkins, 495 U.S. 33 (1990)

(Jenkins I), the District Court in this case had ordered an increase in

local property taxes in order to fund its capital improvements plan. 

KCMSD, which had been ordered by the Court to finance 25% of the plan,

could not pay its share due to state constitutional and statutory

provisions placing a cap on property taxes.  Id. at 38, 41.  Although we

held that principles of comity barred the District Court from imposing

the tax increase itself (except as a last resort), we also concluded

that the Court could order KCMSD to raise taxes, and could enjoin the

state laws preventing KCMSD from doing so.  With little analysis, we

held that "a court order directing a local government body to levy its

own taxes is plainly a judicial act within the power of a federal

court."  Id. at 55.



Our willingness to unleash the federal equitable power has reached areas

beyond school desegregation.  Federal courts have used "structural

injunctions," as they are known, not only to supervise our Nation's

schools, but also to manage prisons, see Hutto v. Finney, 437 U.S. 678

(1978), mental hospitals, Thomas S. v. Flaherty, 902 F.2d 250 (CA4),

cert. denied, 498 U.S. 951 (1990), and public housing, Hills v.

Gautreaux, 425 U.S. 284 (1976).  See generally D. Horowitz, The Courts

and Social Policy 4-9 (1977).  Judges have directed or managed the

reconstruction of entire institutions and bureaucracies, with little

regard for the inherent limitations on their authority. B



Such extravagant uses of judicial power are at odds with the history and

tradition of the equity power and the Framers' design.  The available

historical records suggest that the Framers did not intend federal

equitable remedies to reach as broadly as we have permitted. 

Anticipating the growth of our modern doctrine, the Anti-Federalists

criticized the Constitution because it might be read to grant broad

equitable powers to the federal courts.  In response, the defenders of

the Constitution "sold" the new framework of government to the public by

espousing a narrower interpretation of the equity power.  When an attack

on the Constitution is followed by an open Federalist effort to narrow

the provision, the appropriate conclusion is that the drafters and

ratifiers of the Constitution approved the more limited construction

offered in response.  See McIntyre v. Ohio Elections Commission, 514

U.S. ___, ___ (1995) (THOMAS, J., concurring in judgment).



The rise of the English equity courts as an alternative to the rigors of

the common law, and the battle between the courts of equity and the

courts of common law, is by now a familiar tale.  See T. Plucknett, A

Concise History of the Common Law 191-198, 673-694 (5th ed. 1956).  By

the middle of the 18th century, equity had developed into a precise

legal system encompassing certain recognized categories of cases, such

as those involving special property forms (trusts) or those in which the

common law did not provide relief (fraud, forgery, or mistake).  See 5

W. Holdsworth, History of English Law 300-338 (1927); S. Milsom,

Historical Foundations of the Common Law 85-87 (1969); J. Baker, An

Introduction to English Legal History 93-95 (2d ed. 1979).  In this

fixed system, each of these specific actions then called for a specific

equitable remedy.



Blackstone described the principal differences between courts of law and

courts of equity as lying only in the "modes of administering justice,"

-- "in the mode of proof, the mode of trial, and the mode of relief."  3

W. Blackstone, Commentaries 436 (1768).  As to the last, the English

jurist noted that courts of equity held a concurrent jurisdiction when

there is a "want of a more specific remedy, than can be obtained in the

courts of law."  Id. at 438.  Throughout his discussion, Blackstone

emphasized that courts of equity must be governed by rules and

precedents no less than the courts of law. [I]f a court of equity were

still at sea, and floated upon the occasional opinion which the judge

who happened to preside might entertain of conscience in every

particular case, the inconvenience that would arise from this

uncertainty, would be a worse evil than any hardship that could follow

from rules too strict and inflexible. Id. at 440.  If their remedial

discretion had not been cabined, Blackstone warned, equity courts would

have undermined the rule of law and produced arbitrary government. [The

judiciary's] powers would have become too arbitrary to have been endured

in a country like this, which boasts of being governed in all respects

by law and not by will. Ibid. (footnote omitted); see also 1 id. at

61-62.



So cautioned, the Framers approached equity with suspicion.  As Thomas

Jefferson put it, Relieve the judges from the rigour of text law, and

permit them, with pretorian discretion, to wander into it's equity, and

the whole legal system becomes incertain. 9 Papers of Thomas Jefferson

71 (J. Boyd ed. 1954).  Suspicion of judicial discretion led to

criticism of Article III during the ratification of the Constitution. 

Anti-Federalists attacked the Constitution's extension of the federal

judicial power to "Cases, in Law and Equity," arising under the

Constitution and federal statutes.  According to the Anti-Federalists,

the reference to equity granted federal judges excessive discretion to

deviate from the requirements of the law.  Said the "Federal Farmer,"

"by thus joining the word equity with the word law, if we mean any

thing, we seem to mean to give the judge a discretionary power." 

Federal Farmer No. 15, January 18, 1788, in 2 The Complete

Anti-Federalist 322 (H. Storing ed. 1981) (hereinafter Storing).  He

hoped that the Constitution's mention of equity jurisdiction was not

"intended to lodge an arbitrary power or discretion in the judges, to

decide as their conscience, their opinions, their caprice, or their

politics might dictate."  Id. at 322-323.  Another Anti-Federalist,

Brutus, argued that the equity power would allow federal courts to

"explain the constitution according to the reasoning spirit of it,

without being confined to the words or letter."  Brutus No. 11, January

31, 1788, id. at 419.  This, predicted Brutus, would result in the

growth of federal power and the "entire subversion of the legislative,

executive and judicial powers of the individual states."  Id. at 420. 

See G. McDowell, Equity and the Constitution 43-44 (1982).



These criticisms provoked a Federalist response that explained the

meaning of Article III's words. Answering the Anti-Federalist challenge

in The Federalist Papers, Alexander Hamilton described the narrow role

that the federal judicial power would play.  Initially, Hamilton

conceded that the federal courts would have some freedom in interpreting

the laws and that federal judges would have lifetime tenure.  The

Federalist No. 78, p. 528 (J. Cooke ed. 1961).  Nonetheless, Hamilton

argued (as Blackstone had in describing the English equity courts) that

rules and established practices would limit and control the judicial

power: To avoid an arbitrary discretion in the courts, it is

indispensable that they should be bound down by strict rules and

precedents, which serve to define and point out their duty in every

particular case that comes before them. Id. at 529.  Cf. 1 J. Story,

Commentaries on Equity Jurisprudence  18-20, pp. 15-17 (I. Redfield 9th

ed. 1866).  Hamilton emphasized that "[t]he great and primary use of a

court of equity is to give relief in extraordinary cases," and that "the

principles by which that relief is governed are now reduced to a regular

system."  The Federalist No. 83 at 569, and n.



In response to Anti-Federalist concerns that equity would permit federal

judges an unchecked discretion, Hamilton explicitly relied upon the

precise nature of the equity system that prevailed in England and had

been transplanted in America.  Equity jurisdiction was necessary,

Hamilton argued, because litigation "between individuals" often would

contain claims of "fraud, accident, trust or hardship, which would

render the matter an object of equitable, rather than of legal

jurisdiction."  Id. No. 80 at 539.  "In such cases," Hamilton concluded,

"where foreigners were concerned on either side, it would be impossible

for the federal judicatories to do justice without an equitable, as well

as a legal jurisdiction."  Id. at 540.  Thus, Hamilton sought to narrow

the expansive Anti-Federalist reading of inherent judicial equity power

by demonstrating that the defined nature of the English and colonial

equity system -- with its specified claims and remedies -- would

continue to exist under the federal judiciary.  In line with the

prevailing understanding of equity at the time, Hamilton described

Article III "equity" as a jurisdiction over certain types of cases

rather than as a broad remedial power.  Hamilton merely repeated the

well-known principle that equity would be controlled no less by rules

and practices than was the common law.



In light of this historical evidence, it should come as no surprise that

there is no early record of the exercise of broad remedial powers. 

Certainly there were no "structural injunctions" issued by the federal

courts, nor were there any examples of continuing judicial supervision

and management of governmental institutions.  Such exercises of judicial

power would have appeared to violate principles of state sovereignty and

of the separation of powers as late in the day as the turn of the

century.  "Born out of the desegregation litigation in the 1950's and

1960's, suits for affirmative injunctions were virtually unknown when

the Court decided Ex parte Young, [209 U.S. 123, 158 (1908).]"  Dwyer,

Pendent Jurisdiction and the Eleventh Amendment, 75 Cal. L.Rev. 129, 162

(1987) (footnotes omitted).  Indeed, it appears that the framers

continued to follow English equity practice well after the Ratification.

 See, e.g., Robinson v. Campbell, 3 Wheat. 212, 221-223 (1818).  At the

very least, given the Federalists' public explanation during the

ratification of the federal equity power, we should exercise the power

to impose equitable remedies only sparingly, subject to clear rules

guiding its use. C



Two clear restraints on the use of the equity power- federalism and the

separation of powers-derive from the very form of our Government. 

Federal courts should pause before using their inherent equitable powers

to intrude into the proper sphere of the States.  We have long

recognized that education is primarily a concern of local authorities. 

"[L]ocal autonomy of school districts is a vital national tradition." 

Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406, 410 (1977); see also United

States v. Lopez, 514 U.S. ___, ___ (1995) (KENNEDY, J., concurring);

Milliken I, 418 U.S. at  San Antonio Independent School Dist. v.

Rodriguez, 411 U.S. 1, 50 (1973); ante at ___ (O'CONNOR, J.,

concurring).  A structural reform decree eviscerates a State's

discretionary authority over its own program and budgets and forces

state officials to reallocate state resources and funds to the

desegregation plan at the expense of other citizens, other government

programs, and other institutions not represented in court.  See Dwyer,

supra, at 163.  When District Courts seize complete control over the

schools, they strip state and local governments of one of their most

important governmental responsibilities, and thus deny their existence

as independent governmental entities.



Federal courts do not possess the capabilities of state and local

governments in addressing difficult educational problems.  State and

local school officials not only bear the responsibility for educational

decisions, they also are better equipped than a single federal judge to

make the day-to-day policy, curricular, and funding choices necessary to

bring a school district into compliance with the Constitution.  See

Wright v. Council of City of Emporia, 407 U.S. 451, (1972) (Burger,

C.J., dissenting).  Federal courts simply cannot gather sufficient

information to render an effective decree, have limited resources to

induce compliance, and cannot seek political and public support for

their remedies.  See generally P. Schuck, Suing Government 150-181

(1983).  When we presume to have the institutional ability to set

effective educational, budgetary, or administrative policy, we transform

the least dangerous branch into the most dangerous one.



The separation of powers imposes additional restraints on the

judiciary's exercise of its remedial powers.  To be sure, this is not a

case of one branch of Government encroaching on the prerogatives of

another, but rather of the power of the Federal Government over the

States.  Nonetheless, what the federal courts cannot do at the federal

level they cannot do against the States; in either case, Article III

courts are constrained by the inherent constitutional limitations on

their powers.  There simply are certain things that courts, in order to

remain courts, cannot and should not do.  There is no difference between

courts running school systems or prisons and courts running executive

branch agencies.



In this case, not only did the district court exercise the legislative

power to tax, it also engaged in budgeting, staffing, and educational

decisions, in judgments about the location and aesthetic quality of the

schools, and in administrative oversight and monitoring.  These

functions involve a legislative or executive, rather than a judicial,

power.  See generally Jenkins I, 495 U.S. at 65-81 (KENNEDY, J.,

concurring in part and concurring in judgment); Nagel, Separation of

Powers and the Scope of Federal Equitable Remedies, 30 Stan.L.Rev. 661

(1978).  As Alexander Hamilton explained the limited authority of the

federal courts: The courts must declare the sense of the law; and if

they should be disposed to exercise WILL instead of JUDGMENT, the

consequence would equally be the substitution of their pleasure to that

of the legislative body. The Federalist No. 78 at 526.  Federal judges

cannot make the fundamentally political decisions as to which priorities

are to receive funds and staff, which educational goals are to be

sought, and which values are to be taught.  When federal judges

undertake such local, day-to-day tasks, they detract from the

independence and dignity of the federal courts and intrude into areas in

which they have little expertise.  Cf. Mishkin, Federal Courts as State

Reformers, 35 Wash. & Lee L.Rev. 949 (1978).



It is perhaps not surprising that broad equitable powers have crept into

our jurisprudence, for they vest judges with the discretion to escape

the constraints and dictates of the law and legal rules.  But I believe

that we must impose more precise standards and guidelines on the federal

equitable power, not only to restore predictability to the law and

reduce judicial discretion, but also to ensure that constitutional

remedies are actually targeted toward those who have been injured. D



The dissent's approval of the District Court's treatment of salary

increases is typical of this Court's failure to place limits on the

equitable remedial power.  The dissent frames the inquiry thus:  "[t]he

only issue, then, is whether the salary increases ordered by the

District Court have been reasonably related towards achieving" the goal

of remedying a systemwide reduction in student achievement, "keeping in

mind the broad discretion enjoyed by the District Court in exercising

its equitable powers."  Post at ___.  In response to its question, the

dissent concludes that "it is difficult to see how the District Court

abused its discretion" in either the 1992 or 1993 orders, post at ___,

and characterizes the lower court's orders as "beyond reproach," post at

___.  When the standard of review is as vague as whether "federal court

decrees . . . directly address and relate to the constitutional

violation," Milliken II, 433 U.S. at  it is difficult to ever find a

remedial order "unreasonable."  Such criteria provide District Courts

with little guidance, and provide appellate courts few principles with

which to review trial court decisions.  If the standard reduces to what

one believes is a "fair" remedy, or what vaguely appears to be a good

"fit" between violation and remedy, then there is little hope of

imposing the constraints on the equity power that the framers envisioned

and that our constitutional system requires.



Contrary to the dissent's conclusion, the District Court's remedial

orders are in tension with two common-sense principles.  First, the

District Court retained jurisdiction over the implementation and

modification of the remedial decree, instead of terminating its

involvement after issuing its remedy.  Although briefly mentioned in

Brown II as a temporary measure to overcome local resistance to

desegregation, 349 U.S. at 301 ("[d]uring this period of transition, the

courts will retain jurisdiction"), this concept of continuing judicial

involvement has permitted the District Courts to revise their remedies

constantly in order to reach some broad, abstract, and often elusive

goal.  Not only does this approach deprive the parties of finality and a

clear understanding of their responsibilities, but it also tends to

inject the judiciary into the day-to-day management of institutions and

local policies -- a function that lies outside of our Article III

competence.  Cf. Fuller, The Forms and Limits of Adjudication, 92

Harv.L.Rev. 353 (1978).



Much of the District Court's overreaching in this case occurred because

it employed this hit-or-miss method to shape, and reshape, its remedial

decree.  Using its authority of continuing jurisdiction, the Court

pursued its goal of decreasing "racial isolation" regardless of the cost

or of the difficulties of engineering demographic changes.  Wherever

possible, district courts should focus their remedial discretion on

devising and implementing a unified remedy in a single decree.  This

method would still provide the lower courts with substantial flexibility

to tailor a remedy to fit a violation, and courts could employ their

contempt power to ensure compliance.  To ensure that they do not

overstep the boundaries of their Article III powers, however, district

courts should refrain from exercising their authority in a manner that

supplants the proper sphere reserved to the political branches, who have

a coordinate duty to enforce the Constitution's dictates, and to the

States, whose authority over schools we have long sought to preserve. 

Only by remaining aware of the limited nature of its remedial powers,

and by giving the respect due to other governmental authorities, can the

Judiciary ensure that its desire to do good will not tempt it into

abandoning its limited role in our constitutional Government.



Second, the District Court failed to target its equitable remedies in

this case specifically to cure the harm suffered by the victims of

segregation.  Of course, the initial and most important aspect of any

remedy will be to eliminate any invidious racial distinctions in matters

such as student assignments, transportation, staff, resource allocation,

and activities.  This element of most desegregation decrees is fairly

straightforward and has not produced many examples of overreaching by

the district courts.  It is the "compensatory" ingredient in many

desegregation plans that has produced many of the difficulties in the

case before us.



Having found that segregation "has caused a systemwide reduction in

student achievement in the schools of the KCMSD," 639 F.Supp. at 24, the

District Court ordered the series of magnet school plans, educational

programs, and capital improvements that the Court criticizes today

because of their interdistrict nature.  In ordering these programs, the

District Court exceeded its authority by benefitting those who were not

victims of discriminatory conduct.  KCMSD as a whole may have

experienced reduced achievement levels, but raising the test scores of

the entire district is a goal that is not sufficiently tailored to

restoring the victims of segregation to the position they would have

occupied absent discrimination.  A school district cannot be

discriminated against on the basis of its race, because a school

district has no race.  It goes without saying that only individuals can

suffer from discrimination, and only individuals can receive the remedy.



Of course, a district court may see fit to order necessary remedies that

have the side effect of benefitting those who were not victims of

segregation.  But the court cannot order broad remedies that

indiscriminately benefit a school district as a whole, rather than the

individual students who suffered from discrimination.  Not only do such

remedies tend to indicate "efforts to achieve broader purposes lying

beyond" the scope of the violation, Swann, 402 U.S. at 22, but they also

force state and local governments to work toward the benefit of those

who have suffered no harm from their actions.



To ensure that district courts do not embark on such broad initiatives

in the future, we should demand that remedial decrees be more precisely

designed to benefit only those who have been victims of segregation. 

Race-conscious remedies for discrimination not only must serve a

compelling governmental interest (which is met in desegregation cases),

but also must be narrowly tailored to further that interest.  See

Richmond v. J. A. Croson Co., 488 U.S. 469, (1989) (plurality opinion). 

In the absence of special circumstances, the remedy for de jure

segregation ordinarily should not include educational programs for

students who were not in school (or were even alive) during the period

of segregation.  Although I do not doubt that all KCMSD students benefit

from many of the initiatives ordered by the court below, it is for the

democratically accountable state and local officials to decide whether

they are to be made available even to those who were never harmed by

segregation. III



This Court should never approve a State's efforts to deny students,

because of their race, an equal opportunity for an education.  But the

federal courts also should avoid using racial equality as a pretext for

solving social problems that do not violate the Constitution.  It seems

apparent to me that the District Court undertook the worthy task of

providing a quality education to the children of KCMSD.  As far as I can

tell, however, the District Court sought to bring new funds and

facilities into the KCMSD by finding a constitutional violation on the

part of the State where there was none.  Federal courts should not

lightly assume that States have caused "racial isolation" in 1984 by

maintaining a segregated school system in 1954.  We must forever put

aside the notion that simply because a school district today is black,

it must be educationally inferior.



Even if segregation were present, we must remember that a deserving end

does not justify all possible means.  The desire to reform a school

district, or any other institution, cannot so captivate the Judiciary

that it forgets its constitutionally mandated role.  Usurpation of the

traditionally local control over education not only takes the judiciary

beyond its proper sphere, it also deprives the States and their elected

officials of their constitutional powers.  At some point, we must

recognize that the judiciary is not omniscient, and that all problems do

not require a remedy of constitutional proportions. SOUTER, J.,

dissenting



JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE

BREYER join, dissenting.



The Court's process of orderly adjudication has broken down in this

case.  The Court disposes of challenges to only two of the District

Court's many discrete remedial orders by declaring that the District

Court erroneously provided an interdistrict remedy for an intradistrict

violation.  In doing so, it resolves a foundational issue going to one

element of the District Court's decree that we did not accept for review

in this case, that we need not reach in order to answer the questions

that we did accept for review, and that we specifically refused to

consider when it was presented in a prior petition for certiorari. 

Since, under these circumstances, the respondent school district and

pupils naturally came to this Court without expecting that a fundamental

premise of a portion of the District Court's remedial order would become

the focus of the case, the essence of the Court's misjudgment in

reviewing and repudiating that central premise lies in its failure to

have warned the respondents of what was really at stake.  This failure

lulled the respondents into addressing the case without sufficient

attention to the foundational issue, and their lack of attention has now

infected the Court's decision.



No one on the Court has had the benefit of briefing and argument

informed by an appreciation of the potential breadth of the ruling.  The

deficiencies from which we suffer have led the Court effectively to

overrule a unanimous constitutional precedent of 20 years standing,

which was not even addressed in argument, was mentioned merely in

passing by one of the parties, and discussed by another of them only in

a misleading way.



The Court's departures from the practices that produce informed

adjudication would call for dissent even in a simple case.  But in this

one, with a trial history of more than 10 years of litigation, the

Court's failure to provide adequate notice of the issue to be decided

(or to limit the decision to issues on which certiorari was clearly

granted) rules out any confidence that today's result is sound, either

in fact or in law. I



In 1984, 30 years after our decision in Brown v. Board of Education, 347

U.S. 483 (1954), the District Court found that the State of Missouri and

the Kansas City, Missouri School District (KCMSD) had failed to reform

the segregated scheme of public school education in the KCMSD,

previously mandated by the State, which had required black and white

children to be taught separately according to race.  Jenkins v.

Missouri, 593 F.Supp. 1485, 1490-1494, 1503-1505 (WD Mo. 1984).  After

Brown, neither the State nor the KCMSD moved to dismantle this system of

separate education "root and branch," id. at 1505, despite their

affirmative obligation to do that under the Constitution.  Green v.

School Bd. of New Kent County, 391 U.S. 430, (1968).  "Instead, the

[KCMSD] chose to operate some completely segregated schools and some

integrated ones,"  Jenkins, 593 F.Supp. at 1492, using devices like

optional attendance zones and liberal transfer policies to "allo[w]

attendance patterns to continue on a segregated basis."  Id. at 1494. 

Consequently, on the 20th anniversary of Brown in 1974, 39 of the 77

schools in the KCMSD had student bodies that were more than 90 percent

black, and 80 percent of all black schoolchildren in the KCMSD attended

those schools.  Id. at 1492-1493.  Ten years later, in the 1983-1984

school year, 24 schools remained racially isolated with more than 90

percent black enrollment.  Id. at 1493.  Because the State and the KCMSD

intentionally created this segregated system of education, and

subsequently failed to correct it, the District Court concluded that the

State and the district had "defaulted in their obligation to uphold the

Constitution."  Id. at 1505.



Neither the State nor the KCMSD appealed this finding of liability,

after which the District Court entered a series of remedial orders aimed

at eliminating the vestiges of segregation.  Since the District Court

found that segregation had caused, among other things, "a system wide

reduction in student achievement in the schools of the KCMSD,"  Jenkins

v. Missouri, 639 F.Supp. 19, 24 (WD Mo. 1985) (emphasis in original), it

ordered the adoption, starting in 1985, of a series of remedial programs

to raise educational performance.  As the Court recognizes, the District

Court acted well within the bounds of its equitable discretion in doing

so, ante at ___; in Milliken v. Bradley, 433 U.S. 267 (1977) (Milliken

II), we held that a district court is authorized to remedy all

conditions flowing directly from the constitutional violations committed

by state or local officials, including the educational deficits that

result from a segregated school system  (programs aimed to correct those

deficits are therefore frequently referred to as Milliken II programs). 

Id. at   Nor was there any objection to the District Court's orders from

the State and the KCMSD, who agreed that it was "`appropriate to include

a number of properly targeted educational programs in [the]

desegregation plan,'" Jenkins, 639 F.Supp. at 24 (quoting from the

State's desegregation proposal).  They endorsed many of the initiatives

directed at improving student achievement that the District Court

ultimately incorporated into its decree, including those calling for the

attainment of AAA status for the KCMSD (a designation, conferred by the

State Department of Elementary and Secondary Education upon

consideration of a limited number of criteria, indicating "that a school

system quantitatively and qualitatively has the resources necessary to

provide minimum basic education to its students," id. at 26), full-day

kindergarten, summer school, tutoring before and after school, early

childhood development, and reduction in class sizes.  Id. at 24-26.



Between 1985 and 1987, the District Court also ordered the

implementation of a magnet school concept, 1 App. 131-133 (Order of Nov.

12, 1986), and extensive capital improvements to the schools of the

KCMSD.  Jenkins v. Missouri, 672 F.Supp. 400, 405-408 (WD Mo. 1987); 1

App. 133-134 (Order of Nov. 12, 1986); Jenkins, 639 F.Supp. at 39-41. 

The District Court found that magnet schools would not only serve to

remedy the deficiencies in student achievement in the KCMSD, but would

also assist in desegregating the district by attracting white students

back into the school system.  See, e.g., 1 App. 118 (Order of June 16,

1986) ("[C]ommitment, when coupled with quality planning and sufficient

resources can result in the establishment of magnet schools which can

attract nonminority enrollment as well as be an integral part of

district-wide improved student achievement"); see also Jenkins v.

Missouri, 855 F.2d 1295, 1301 (CA8 1988) ("The foundation of the plans

adopted was the idea that improving the KCMSD as a system would at the

same time compensate the blacks for the education they had been denied

and attract whites from within and without the KCMSD to formerly black

schools").



The District Court, finding that the physical facilities in the KCMSD

had "literally rotted,"  Jenkins, 672 F.Supp. at 411, similarly grounded

its orders of capital improvements in the related remedial objects of

improving student achievement and desegregating the KCMSD.  Jenkins, 639

F.Supp. at 40 ("The improvement of school facilities is an important

factor in the overall success of this desegregation plan.  Specifically,

a school facility which presents safety and health hazards to its

students and faculty serves both as an obstacle to education as well as

to maintaining and attracting nonminority enrollment.  Further,

conditions which impede the creation of a good learning climate, such as

heating deficiencies and leaking roofs, reduce the effectiveness of the

quality education components contained in this plan"); see also Jenkins,

855 F.2d at 1305 ("[T]he capital improvements [are] required both to

improve the education available to the victims of segregation as well as

to attract whites to the schools").



As a final element of its remedy, in 1987 the District Court ordered

funding for increases in teachers' salaries as a step towards raising

the level of student achievement. t is essential that the KCMSD have

sufficient revenues to fund an operating budget which can provide

quality education, including a high quality faculty. Jenkins, 672

F.Supp. at 410.  Neither the State nor the KCMSD objected to increases

in teachers' salaries as an element of the comprehensive remedy, or to

this cost as an item in the desegregation budget.



In 1988, however, the State went to the Eighth Circuit with a broad

challenge to the District Court's remedial concept of magnet schools and

to its orders of capital improvements (though it did not appeal the

salary order), arguing that the District Court had run afoul of Milliken

v. Bradley, 418 U.S. 717 (1974) (Milliken I), by ordering an

interdistrict remedy for an intradistrict violation.  The Eighth Circuit

rejected the State's position, Jenkins, 855 F.2d 1295, and in 1989 the

State petitioned for certiorari.



The State's petition presented two questions for review, one challenging

the District Court's authority to order a property tax increase to fund

its remedial program, the other going to the legitimacy of the magnet

school concept at the very foundation of the Court's desegregation plan:



For a purely intradistrict violation, the courts below have ordered

remedies -- costing hundreds of millions of dollars -- with the stated

goals of attracting more nonminority students to the school district and

making programs and facilities comparable to those in neighboring

districts. . . .



The questio[n] presented [is]. . . .



. . .  Whether a federal court, remedying an intradistrict violation

under Brown v. Board of Education, 347 U.S. 483 (1954), may



a) impose a duty to attract additional nonminority students to a school

district, and



b) require improvements to make the district schools comparable to those

in surrounding districts. Pet. for Cert. in Missouri v. Jenkins, O.T.

1988, No. 88-1150, p. i.  We accepted the taxation question, and decided

that, while the District Court could not impose the tax measure itself,

it could require the district to tax property at a rate adequate to fund

its share of the costs of the desegregation remedy.  Jenkins v.

Missouri, 495 U.S. 33, 50-58 (1990).  If we had accepted the State's

broader, foundational question going to the magnet school concept, we

could also have made an informed decision on whether that element of the

District Court's remedial scheme was within the limits of the Court's

equitable discretion in response to the constitutional violation found. 

Each party would have briefed the question fully and would have

identified in some detail those items in the record bearing on it.  But

none of these things happened.  Instead of accepting the foundational

question in 1989, we denied certiorari on it.  Missouri v. Jenkins, 490

U.S. 1034.



The State did not raise that question again when it returned to this

Court with its 1994 petition for certiorari, which led to today's

decision.  Instead, the State presented, and we agreed to review, these

two questions:



1. Whether a remedial educational desegregation program providing

greater educational opportunities to victims of past de jure segregation

than provided anywhere else in the country nonetheless fails to satisfy

the Fourteenth Amendment (thus precluding a finding of partial unitary

status) solely because student achievement in the District, as measured

by results on standardized test scores, has not risen to some

unspecified level?



2. Whether a federal court order granting salary increases to virtually

every employee of a school district -- including noninstructional

personnel -- as a part of a school desegregation remedy conflicts with

applicable decisions of this court which require that remedial

components must directly address and relate to the constitutional

violation and be tailored to cure the condition that offends the

Constitution? Pet. for Cert. i.  These questions focus on two discrete

issues:  the extent to which a district court may look at students' test

scores in determining whether a school district has attained partial

unitary status as to its Milliken II educational programs and whether

the particular salary increases ordered by the District Court constitute

a permissible component of its remedy.



The State did not go beyond these discrete issues, and it framed no

broader, foundational question about the validity of the District

Court's magnet concept.  The Court decides, however, that it can reach

that question of its own initiative, and it sees no bar to this course

in the provision of this Court's Rule 14.1 that "[o]nly the questions

set forth in the petition, or fairly included therein, will be

considered. . . ."   Ante at ___.  The broader issue, the Court claims,

is "fairly included" in the State's salary question.  But that claim

does not survive scrutiny.



The standard under Rule 14.1 is quite simple:  as the Court recognizes,

we have held that an issue is fairly comprehended in a question

presented when the issue must be resolved in order to answer the

question.  See ante at ___, citing Procunier v. Navarette, 434 U.S. 555,

560, n. 6 (1978);  United States v. Mendenhall, 446 U.S. 544,  n. 5

(1980).  That should be the end of the matter here, since the State

itself concedes that we can answer its salary and test score questions

without addressing the soundness of the magnet element of the District

Court's underlying remedial scheme, see Brief for Petitioners 18 ("each

question [presented] can be dealt with on its own terms . . .").  While

the Court ignores that concession, it is patently correct.  There is no

reason why we cannot take the questions as they come to us; assuming the

validity of the District Court's basic remedial concept, we can

determine the significance of test scores and assess the salary orders

in relation to that concept.



Of course, as we understand necessity in prudential matters like this,

it comes in degrees, and I would not deny that sometimes differing

judgments are possible about the need to go beyond a question as

originally accepted.  But this is not even arguably such a case.  It is

instead a case that presents powerful reasons to confine discussion to

the questions taken.



Quite naturally, the respondents here chose not to devote any

significant attention to a question not raised, and they presumably had

no reason to designate for printing those portions of the record bearing

on an issue not apparently before us.  And while respondents seemingly

gave some thought to the bare possibility that the Court would choose to

deal with the discrete questions by going beyond them to a more

comprehensive underlying issue, they were entitled to reject that

possibility as a serious one for the very reason that the Court had

already, in 1989, expressly refused to consider that foundational issue

when the State expressly attempted to raise it.  Our deliberate refusal

to entertain so important an issue is and ought to be a reasonable basis

to infer that we will not subsequently allow it to be raised on our own

motion without saying so in advance and giving notice to a party whose

interests might be adversely affected.



Thus the Court misses the point when it argues that the foundational

issue is in a sense antecedent to the specific ones raised, and that

those can be answered by finding error in some element of the underlying

remedial scheme.  Even if the Court were correct that the foundational

issue could be reached under Rule 14.1, the critical question surely is

whether that issue may fairly be decided without clear warning at the

culmination of a course of litigation in which this Court has

specifically refused to consider the issue and given no indication of

any subsequent change of mind.  The answer is obviously no.  And the

Court's claim of necessity rings particularly hollow when one considers

that if it really were essential to decide the foundational issue to

address the two questions that are presented, the Court could give

notice to the parties of its intention to reach the broader issue, and

allow for adequate briefing and argument on it.  And yet the Court does

none of that, but simply decides the issue without any warning to

respondents.



If there is any doubt about the lack of fairness and prudence displayed

by the Court, it should disappear upon seeing two things:  first, how

readily the questions presented can be answered on their own terms,

without giving any countenance to the State's now successful attempt to

"`smuggl[e] additional questions into a case after we grant[ed]

certiorari,'"  Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips

Corp., 510 U.S. ___, ___ (1993), quoting Irvine v. California, 347 U.S.

128, 129 (1954) (plurality opinion of Jackson, J.); and, second, how the

Court's decision to go beyond those questions to address an issue not

adequately briefed or argued by one set of parties leads it to render an

opinion anchored in neither the findings and evidence contained in the

record, nor in controlling precedent, which is squarely at odds with the

Court's holding today. II A



The test score question as it comes to us is one of word play, not

substance.  While the Court insists that the District Court's Order of

June 17, 1992 (the only order relevant to the test score question on

review here), requir[ed] the State to continue to fund the quality

education programs because student achievement levels [in the KCMSD]

were still "at or below national norms at many grade levels . . . ,"

ante at ___; see also ante at ___, that order contains no discussion at

all of student achievement levels in the KCMSD in comparison to national

norms, and in fact does not explicitly address the subject of partial

unitary status.  App. to Pet. for Cert. A-69 to A-75.  The reference to

test scores "at or below national norms" comes from an entirely

different and subsequent order of the District Court (dated Apr. 16,

1993) which is not under review.  Its language presumably would not have

been quoted to us, if the  Court of Appeals' opinion affirming the

District Court's June 17, 1992 order had not canvassed subsequent orders

and mentioned the District Court's finding of fact that the "KCMSD is

still at or below national norms at many grade levels," 11 F.3d 755, 762

(CA8 1994), citing Order of Apr. 16, 1993, App. to Pet. for Cert. A-130.

 In any event, what is important here is that none of the District

Court's or Court of Appeals' opinions or orders requires a certain level

of test scores before unitary status can be found, or indicates that

test scores are the only thing standing between the State and a finding

of unitary status as to the KCMSD's Milliken II programs.  Indeed, the

opinion concurring in the denial of rehearing en banc below (not

mentioned by the Court, although it is certainly more probative of the

governing law in the Eighth Circuit than the dissenting opinion on which

the Court does rely) expressly disavows any dispositive role for test

scores:



The dissent accepts, at least in part, the State's argument that the

district court adopted a student achievement goal, measured by test

scores, as the only basis for determining whether past discrimination

has been remedied. . . .  When we deal with student achievement in a

quality education program in the context of relieving a school district

of court supervision, test results must be considered.  Test scores,

however, must be only one factor in the equation.  Nothing in this

court's opinion, the district court's opinion, or the testimony of

KCMSD's witnesses indicates that test results were the only criteria

used in denying the State's claim that its obligation for the quality

education programs should be ended by a declaration they are unitary. 19

F.3d 393, 395 (1994) (Gibson, J., concurring in denial of rehearing en

banc).



If, then, test scores do not explain why there was no finding of unitary

status as to the Milliken II programs, one may ask what does explain it.

 The answer is quite straightforward.  The Court of Appeals refused to

order the District Court to enter a finding of partial unitary status as

to the KCMSD's Milliken II programs (and apparently, the District Court

did not speak to the issue itself) simply because the State did not

attempt to make the showing required for that relief.  As the Court

recognizes, ante at ___, we have established a clear set of procedures

to be followed by governmental entities seeking the partial termination

of a desegregation decree.  In Freeman v. Pitts,  503 U.S. 467 (1992),

we held that [t]he duty and responsibility of a school district once

segregated by law is to take all steps necessary to eliminate the

vestiges of the unconstitutional de jure system. Id. at 485. 

Accordingly, before a district court may grant a school district (or

other governmental entity) partial release from a desegregation decree,

it must first consider whether there has been full and satisfactory

compliance with the decree in those aspects of the system where

supervision is to be withdrawn. . . . Id. at 491.  Full and satisfactory

compliance, we emphasized in Freeman, is to be measured by "`whether the

vestiges of past discrimination ha[ve] been eliminated to the extent

practicable.'"  Id. at 492, quoting Board of Ed. of Oklahoma City Public

Schools v. Dowell, 498 U.S. 237, (1991).  The district court must then

consider whether retention of judicial control is necessary or

practicable to achieve compliance with the decree in other facets of the

school system, and whether the school district [or other governmental

entity] has demonstrated, to the public and to the parents and students

of the once disfavored race, its good faith commitment to the whole of

the court's decree and to those provisions of the law and the

Constitution that were the predicate for judicial intervention in the

first instance. 503 U.S. at 491.  The burden of showing that these

conditions to finding partial unitary status have been met rests (as one

would expect) squarely on the constitutional violator who seeks relief

from the existing remedial order.  Id. at 494.



While the Court recognizes the three-part showing that the State must

make under Freeman in order to get a finding of partial unitary status,

ante at ___, it fails to acknowledge that the State did not even try to

make a Freeman showing in the litigation leading up to the District

Court's Order of June 17, 1992.  The District Court's order was

triggered not by a motion for partial unitary status filed by the State,

but by a motion filed by the KCMSD for approval of its desegregation

plan for the 1992-1993 school year.  See App. to Pet. for Cert. A-69. 

While the State's response to that motion suggested that the District

Court should enter a finding of partial unitary status as to the

district's Milliken II component of its decree, State's Response to

KCMSD Motion for Approval of Desegregation Plan for 1992-1993, pp. 1-20

(hereinafter State's Response), the State failed even to allege its

compliance with two of the three prongs of the Freeman test.



The State did not claim that implementation of the Milliken II component

of the decree had remedied the reduction in student achievement in the

KCMSD to the extent practicable; it simply argued that various Milliken

II programs had been implemented.  State's Response 9-17.  Accordingly,

in the hearings held by the District Court on the KCMSD's motion, the

State's expert witness testified only that the various Milliken II

programs had been implemented and had increased educational opportunity

in the district.  2 App. 439-483.  With the exception of the "effective

schools" program, he said nothing about the effects of those programs on

student achievement, and in fact admitted on cross-examination that he

did not have an opinion as to whether the programs had remedied to the

extent practicable the reduction in student achievement caused by the

segregation in the KCMSD. Q:  Dr. Stewart, do you, testifying on behalf

of the State . . . have an opinion as to whether or not the educational

deficits that you acknowledged were vestiges of the prior segregation

have been eliminated to the extent practicable in the Kansas City School

District? A:  No, that's not the purpose of my testimony, Mr. Benson.

Id. at 483.



Nor did the State focus on its own good faith in complying with the

District Court's decree; it emphasized instead the district's commitment

to the decree and to the constitutional provisions on which the decree

rested.  State's Response 8.  The State, indeed, said nothing to

contradict the very findings made elsewhere by the District Court that

have called the State's own commitment to the success of the decree into

question.  See, e.g., 1 App. 136 (Order of Nov. 12, 1986) ("[D]uring the

course of this lawsuit, the Court has not been informed of one

affirmative act voluntarily taken by the Executive Department of the

State of Missouri or the Missouri General Assembly to aid a school

district that is involved in a desegregation program");  see also App.

to Pet. for Cert. A-123 (Order of Apr. 16, 1993) ("The State, also a

constitutional violator, has historically opposed the implementation of

any program offered to desegregate the KCMSD.  The Court recognizes that

the State has had to bear the brunt of the costs of desegregation due to

the joint and several liability finding previously made by the Court. 

However, the State has never offered the Court a viable, even tenable,

alternative, and has been extremely antagonistic in its approach to

effecting the desegregation of the KCMSD") (emphasis in original).



Thus, it was the State's failure to meet or even to recognize its burden

under Freeman that led the Court of Appeals to reject the suggestion

that it make a finding of partial unitary status as to the district's

Milliken II education programs: It is . . . significant that the

testimony of [the State's expert] did no more than describe the

successful establishment of the several educational programs, but gave

no indication of whether these programs had succeeded in improving

student achievement. . . .



The only evidence before the district court with respect to the degree

of progress on elimination of vestiges of past discrimination was, at

best, that a start had been made.  The evidence on the record fell far

short of establishing that such vestiges had been eliminated to the

extent practicable. . . .



. . .  [Further, the] State did not try to prove that it has

demonstrated a good faith commitment to the whole of the court's decree.

. . . *    *    *    *



. . .  [T]he district court did not abuse its discretion in continuing

the quality education programs. 11 F.3d at 764-765 (citations omitted).



Examining only the first Freeman prong, there can be no doubt that the

Court of Appeals was correct.  Freeman and Dowell make it entirely clear

that the central focus of this prong of the unitary status enquiry is on

effects:  to the extent reasonably possible, a constitutional violator

must remedy the ills caused by its actions before it can be freed of the

court-ordered obligations it has brought upon itself.  Under the logic

of the State's arguments to the District Court, the moment the Milliken

II programs were put in place, the State was at liberty to walk away

from them, no matter how great the remaining consequences of segregation

for educational quality or how great the potential for curing them if

State funding continued.



Looking ahead, if indeed the State believes itself entitled to a finding

of partial unitary status on the subject of educational programs, there

is an orderly procedural course for it to follow.  It may frame a proper

motion for partial unitary status, and prepare to make a record

sufficient to allow the District Court and the Court of Appeals to

address the continued need for and efficacy of the Milliken II programs.



In the development of a proper unitary status record, test scores will

undoubtedly play a role.  It is true, as the Court recognizes, that all

parties to this case agree that it would be error to require that the

students in a school district attain the national average test score as

a prerequisite to a finding of partial unitary status, if only because

all sorts of causes independent of the vestiges of past school

segregation might stand in the way of the goal.  Ante at ___.  That

said, test scores will clearly be relevant in determining whether the

improvement programs have cured a deficiency in student achievement to

the practicable extent.  The District Court has noted (in the finding

that the Court would read as a dispositive requirement for unitary

status) that while students' scores have shown a trend of improvement,

they remain at or below national norms.  App. to Pet. for Cert. A-131

(Order of Apr. 16, 1993).  The significance of this fact is subject to

assessment.  Depending, of course, on other facts developed in the

course of unitary status proceedings, the improvement to less than the

national average might reasonably be taken to show that education

programs are having a good effect on student achievement, and that

further improvement can be expected.  On the other hand, if test score

changes were shown to have flattened out, that might suggest the

impracticability of any additional remedial progress. While the

significance of scores is thus open to judgment, the judgment is not

likely to be very sound unless it is informed by more of a record than

we have in front of us, and the Court's admonition that the District

Court should "sharply limit" its reliance on test scores, ante at ___,

should be viewed in this light. B



The other question properly before us has to do with the propriety of

the District Court's recent salary orders.  While the Court suggests

otherwise, ante at ___, the District Court did not ground its orders of

salary increases solely on the goal of attracting students back to the

KCMSD.  From the start, the District Court has consistently treated

salary increases as an important element in remedying the systemwide

reduction in student achievement resulting from segregation in the

KCSMD.  As noted above, the Court does not question this remedial goal,

which we expressly approved in Milliken II.  See supra at ___.  The only

issue, then, is whether the salary increases ordered by the District

Court have been reasonably related to achieving that goal, keeping in

mind the broad discretion enjoyed by the District Court in exercising

its equitable powers.



The District Court first ordered KCMSD salary increases, limited to

teachers, in 1987, basing its decision on the need to raise the level of

student achievement. [I]t is essential that the KCMSD have sufficient

revenues to fund an operating budget which can provide quality

education, including a high quality faculty. Jenkins, 672 F.Supp. at

410.  The State raised no objection to the District Court's order, and

said nothing about the issue of salary increases in its 1988 appeal to

the Eighth Circuit.



When the District Court's 1987 order expired in 1990, all parties,

including the State, agreed to a further order increasing salaries for

both instructional and noninstructional personnel through the 1991-1992

school year.  1 App. 332-337 (Order of July 23, 1990).  In 1992, the

District Court merely ordered that salaries in the KCMSD be maintained

at the same level for the following year, rejecting the State's argument

that desegregation funding for salaries should be discontinued, App. to

Pet. for Cert. A-76 to A-93 (Order of June 25, 1992), and in 1993 the

District Court ordered small salary increases for both instructional and

noninstructional personnel through the end of the 1995-1996 school year.

 App. to Pet. for Cert. A-94 to A-109 (Order of June 30, 1993).



It is the District Court's 1992 and 1993 orders that are before us, and

it is difficult to see how the District Court abused its discretion in

either instance.  The District Court had evidence in front of it that

adopting the State's position and discontinuing desegregation funding

for salary levels would result in their abrupt drop to 1986-1987 levels,

with the resulting disparity between teacher pay in the district and the

nationwide level increasing to as much as 40-45 percent, and a mass

exodus of competent employees likely taking place.  Id. at A-76, A-78 to

A-91.  Faced with this evidence, the District Court found that continued

desegregation funding of salaries, and small increases in those salaries

over time, were essential to the successful implementation of its

remedial scheme, including the elevation of student achievement: [I]n

the absence of desegregation funding for salaries, the District will not

be able to implement its desegregation plan. . . . *    *    *    *



High quality personnel are necessary not only to implement specialized

desegregation programs intended to "improve educational opportunities

and reduce racial isolation," but also to "ensure that there is no

diminution in the quality of its regular academic program." . . .



. . .  There is no question but that a salary roll back would have

effects that would drastically impair implementation of the

desegregation remedy. *    *    *    *



. . .  A salary roll back would result in excessive employee turnover, a

decline in the quality and commitment of work and an inability of the

KCMSD to achieve the objectives of the desegregation plan. Id. at A-86

to A-91 (Order of June 25, 1992), quoting Jenkins, 855 F.2d at 1301, and

Jenkins, 672 F.Supp. at 410.  See also App. to Pet. for Cert. A-95 to

A-97, A-101 to A-102 (Order of June 30, 1993).  The Court of Appeals

affirmed the District Court's orders on the basis of these findings,

again taking special note of the importance of adequate salaries to the

remedial goal of improving student achievement: [Q]uality education

programs and magnet schools [are] a part of the remedy for the vestiges

of segregation causing a system-wide reduction in student achievement in

the KCMSD schools. . . .  The significant finding of the [district]

court with respect to the earlier funding order was that the salary

increases were essential to comply with the court's desegregation

orders, and that high quality teachers, administrators, and staff must

be hired to improve the desegregative attractiveness of KCMSD. *    *   

*    *



It is evident that the district court had before it substantial evidence

of a statistically significant reduction in the turnover rates for

full-time employees, a dramatic increase in the percentage of certified

employees selecting KCMSD because of the salary increases, and a

significant decline in the number of employees lost to other districts. 

Further, the court heard testimony that the average performance

evaluation for the professional employees increased positively and

significantly. 13 F.3d 1170, 1172-1174 (CA8 1993).  See also 11 F.3d at

766-769.



There is nothing exceptionable in the lower courts' findings about the

relationship between salaries and the District Court's remedial

objectives, and certainly nothing in the record suggests obvious error

as to the amounts of the increases ordered.  If it is tempting to

question the place of salary increases for administrative and

maintenance personnel in a desegregation order, the Court of Appeals

addressed the temptation in specifically affirming the District Court's

finding that such personnel are critical to the success of the

desegregation effort, 13 F.3d at 1174 (referring to order of June 30,

1993, App. to Pet. for Cert. A-104), and did so in the circumstances of

a district whose schools have been plagued by leaking roofs, defective

lighting, and reeking lavatories.  See Jenkins, 855 F.2d at 1306;

Jenkins, 672 F.Supp. at 403-404.  As for teachers' increases, the

District Court and the Court of Appeals were beyond reproach in finding

and affirming that, in order to remedy the educational deficits flowing

from segregation in the KCMSD, "those persons charged with implementing

the [remedial] plan [must] be the most qualified persons reasonably

attainable," App. to Pet. for Cert. A-102.



Indeed, the Court does not question the District Court's salary orders

insofar as they relate to the objective of raising the level of student

achievement in the KCMSD, but rather overlooks that basis for the orders

altogether.  The Court suggests that the District Court rested its

approval of salary increases only on the object of drawing students into

the district's schools, ante at ___, and rejects the increases for that

reason.  It seems clear, however, that the District Court and the Court

of Appeals both viewed the salary orders as serving two complementary

but distinct purposes, and to the extent that the District Court

concludes on remand that its salary orders are justified by reference to

the quality of education alone, nothing in the Court's opinion precludes

those orders from remaining in effect. III



The two discrete questions that we actually accepted for review are,

then, answerable on their own terms without any need to consider whether

the District Court's use of the magnet school concept in its remedial

plan is itself constitutionally vulnerable.  The capacity to deal thus

with the questions raised, coupled with the unfairness of doing

otherwise without warning, are enough to demand a dissent.



But there is more to fuel dissent.  On its face, the Court's opinion

projects an appealing pragmatism in seeming to cut through the details

of many facts by applying a rule of law that can claim both precedential

support and intuitive sense, that there is error in imposing an

interdistrict remedy to cure a merely intradistrict violation.  Since

the District Court has consistently described the violation here as

solely intradistrict, and since the object of the magnet schools under

its plan includes attracting students into the district from other

districts, the Court's result seems to follow with the necessity of

logic, against which arguments about detail or calls for fair warning

may not carry great weight.



The attractiveness of the Court's analysis disappears, however, as soon

as we recognize two things.  First, the District Court did not mean by

an "intradistrict violation" what the Court apparently means by it

today.  The District Court meant that the violation within the KCMSD had

not led to segregation outside of it, and that no other school districts

had played a part in the violation.  It did not mean that the violation

had not produced effects of any sort beyond the district.  Indeed, the

record that we have indicates that the District Court understood that

the violation here did produce effects spanning district borders and

leading to greater segregation within the KCMSD, the reversal of which

the District Court sought to accomplish by establishing magnet schools. 

Insofar as the Court assumes that this was not so in fact, there is at

least enough in the record to cast serious doubt on its assumption. 

Second, the Court violates existing case law even on its own apparent

view of the facts, that the segregation violation within the KCMSD

produced no proven effects, segregative or otherwise, outside it. 

Assuming this to be true, the Court's decision that the rule against

interdistrict remedies for intradistrict violations applies to this

case, solely because the remedy here is meant to produce effects outside

the district in which the violation occurred, is flatly contrary to

established precedent. A



The Court appears to assume that the effects of segregation were wholly

contained within the KCMSD, and based on this assumption argues that any

remedy looking beyond the district's boundaries is forbidden.  The

Court's position rests on the premise that the District Court and the

Court of Appeals erred in finding that segregation had produced effects

outside the district, and hence were in error when they treated the

reversal of those effects as a proper subject of the equitable power to

eliminate the remaining vestiges of the old segregation so far as

practicable.



The Court has not shown the trial court and the Eighth Circuit to be

wrong on the facts, however, and on the record before us this Court's

factual assumption is at the very least a questionable basis for

removing one major foundation of the desegregation decree.  I do not, of

course, claim to be in a position to say for sure that the Court is

wrong, for I, like the Court, am a victim of an approach to the case

uninformed by any warning that a foundational issue would be

dispositive.  My sole point is that the Court is not in any obvious

sense correct, wherever the truth may ultimately lie.



To be sure, the District Court found, and the Court of Appeals affirmed,

that the SSDs had taken no action contributing to segregation in the

KCMSD.  Jenkins v. Missouri, 807 F.2d 657, 664, 668-670 (CA8 1986);  3

App. 723, 738 (Order of June 5, 1984).  Those courts further concluded

that the constitutional violations committed by the State and the KCMSD

had not produced any significant segregative effects in the SSDs, all of

which have operated as unitary districts since shortly after our

decision in Brown.  Jenkins, 807 F.2d at 672, 678; 3 App. 813, 816.  It

was indeed on the basis of just these findings that the District Court

concluded that it was dealing with an intradistrict violation, and,

consistently with our decision in Milliken I, refused to consolidate the

SSDs with the KCMSD.  Jenkins, 807 F.2d at 660-661, 674; 3 App. 721-723,

725, 810-811.



There is no inconsistency between these findings and the possibility,

however, that the actions of the State and the KCMSD produced

significant nonsegregative effects outside the KCMSD that led to greater

segregation within it.  To the contrary, the District Court and the

Court of Appeals concurred in finding that the preponderance of black

students in the [KCMSD] was due to the State and KCMSD's constitutional

violations, which caused white flight. . . .  [T]he existence of

segregated schools led to white flight from the KCMSD to suburban

districts and to private schools. Jenkins, 855 F.2d at 1302, citing the

District Court's Order of August 25, 1986, 1 App. 126 ("[S]egregated

schools, a constitutional violation, ha[ve] led to white flight from the

KCMSD to suburban districts [and] large numbers of students leaving the

schools of Kansas City and attending private schools . . .").  While

this exodus of white students would not have led to segregation within

the SSDs, which have all been run in a unitary fashion since the time of

Brown, it clearly represented an effect spanning district borders, and

one which the District Court and the Court of Appeals expressly

attributed to segregation in the KCMSD.



The Court, however, rejects the findings of the District Court, endorsed

by the Court of Appeals, that segregation led to white flight from the

KCMSD, and does so at the expense of another accepted norm of our

appellate procedure.  We have long adhered to the view that [a] court of

law, such as this Court is, rather than a court for correction of errors

in factfinding, cannot undertake to review concurrent findings of fact

by two courts below in the absence of a very obvious and exceptional

showing of error. Graver Tank & Mfg. Co. v. Linde Air Products Co., 336

U.S. 271, 275 (1949); see also Branti v. Finkel, 445 U.S. 507, 512, n. 6

(1980) (referring to "our settled practice of accepting, absent the most

exceptional circumstances, factual determinations in which the district

court and the court of appeals have concurred . . .").  The Court fails

to show any exceptional circumstance present here, however:  it relies

on a "contradiction" that is not an obvious contradiction at all, and on

an arbitrary "supposition" that "`white flight' may result from

desegregation, not de jure segregation,"  ante at ___, a supposition

said to be bolstered by the District Court's statement that there was an

abundance of evidence that many residents of the KCMSD left the district

and moved to the suburbs because of the district's efforts to integrate

its schools. 672 F.Supp. at 412.



The doubtful contradiction is said to exist between the District Court's

findings, on the one hand, that segregation caused white flight to the

SSDs, and the Court of Appeals' conclusion, on the other, that the

District Court "`made specific findings that negate current significant

interdistrict effects. . . . '"  Ante at ___, quoting Jenkins, 807 F.2d

at 672.  Any impression of contradiction quickly disappears, however,

when the Court of Appeals' statement is read in context: [T]he

[district] court explicitly recognized that, [to consolidate school

districts] under Milliken [I], "there must be evidence of a

constitutional violation in one district that produces a significant

segregative effect in another district."  Order of June 5, 1984 at 14,

95. . . .  The district court thus dealt not only with the issue of

whether the SSDs were constitutional violators, but also whether there

were significant interdistrict segregative effects.  See V, infra.  When

it did so, it made specific findings that negate current significant

interdistrict effects. . . . Ibid.  It is clear that, in this passage,

the Court of Appeals was summarizing the District Court's findings that

the constitutional violations within the KCMSD had not produced any

segregative effects in other districts.  Ibid.  While the Court of

Appeals did not repeat the word "segregative" in its concluding

sentence, there is nothing to indicate that it was referring to anything

but segregative effects, and there is in fact nothing in the District

Court's own statements going beyond its finding that the State and the

KCMSD's actions did not lead to segregative effects in the SSDs.  There

is, in turn, no contradiction between this finding and the District

Court's findings about white flight:  while white flight would have

produced significant effects in other school districts, in the form of

greatly increased numbers of white students, those effects would not

have been segregative beyond the KCMSD, as the departing students were

absorbed into wholly unitary systems.



Without the contradiction, the Court has nothing to justify its

rejection of the District Court's finding that segregation caused white

flight but its supposition that flight results from integration, not

segregation.  The supposition, and the distinction on which it rests,

are untenable.  At the more obvious level, there is in fact no break in

the chain of causation linking the effects of desegregation with those

of segregation.  There would be no desegregation orders and no remedial

plans without prior unconstitutional segregation as the occasion for

issuing and adopting them, and an adverse reaction to a desegregation

order is traceable in fact to the segregation that is subject to the

remedy.  When the Court quotes the District Court's reference to

abundant evidence that integration caused flight to the suburbs, then,

it quotes nothing inconsistent with the District Court's other findings

that segregation had caused the flight.  The only difference between the

statements lies in the point to which the District Court happened to

trace the causal sequence.



The unreality of the Court's categorical distinction can be illustrated

by some examples.  There is no dispute that, before the District Court's

remedial plan was placed into effect, the schools in the unreformed

segregated system were physically a shambles:



The KCMSD facilities still have numerous health and safety hazards,

educational environment hazards, functional impairments, and appearance

impairments.  The specific problems include:  inadequate lighting;

peeling paint and crumbling plaster on ceilings, walls and corridors;

loose tiles, torn floor coverings; odors resulting from unventilated

restrooms with rotted, corroded toilet fixtures; noisy classrooms due to

lack of adequate acoustical treatment; lack of off-street parking and

bus loading for parents, teachers and students; lack of appropriate

space for many cafeterias, libraries and classrooms; faulty and

antiquated heating and electrical systems; damaged and inoperable

lockers; and inadequate fire safety systems.  The conditions at Paseo

High School are such that even the principal stated that he would not

send his own child to that facility. 672 F.Supp. at 403 (citations

omitted).  See also Jenkins, 855 F.2d at 1300 (reciting District Court

findings);  Jenkins, 639 F.Supp. at 39-40.  The cost of turning this

shambles into habitable schools was enormous, as anyone would have seen

long before the District Court ordered repairs.  See Missouri v.

Jenkins, 495 U.S. at 38-40 (discussing the costs of the remedial program

and the resulting increases in tax rates within the KCMSD).  Property

taxpaying parents of white children, seeing the handwriting on the wall

in 1985,  could well have decided that the inevitable cost of cleanup

would produce an intolerable tax rate, and could have moved to escape

it.  The District Court's remedial orders had not yet been put in place.

 Was the white flight caused by segregation or desegregation?  The

distinction has no significance.



Another example makes the same point.  After Brown, white parents likely

came to understand that the practice of spending more on white schools

than on black ones would be stopped at some point.  If they were

unwilling to raise all expenditures to match the customary white school

level, they must have expected the expenditures on white schools to drop

to the level of those for the segregated black schools or to some level

in between.  See, e.g., 639 F.Supp. at 39-40 (describing a decline in

all 68 of the KCMSD's school buildings in the past "10 to 15 years"). 

If they thus believed that the white schools would deteriorate they

might then have taken steps to establish private white schools, starting

a practice of local private education that has endured.  Again, what

sense does it make to say of this example that the cause of white

private education was desegregation (not yet underway), rather than the

segregation that led to it?



I do not claim that either of these possible explanations would

ultimately turn out to be correct, for any such claim would head me down

the same road the Court is taking, of resolving factual issues

independently of the trial court without warning the respondents that

the full evidentiary record bearing on the issue should be identified

for us.  My point is only that the Court is on shaky grounds when it

assumes that prior segregation and later desegregation are separable in

fact as causes of "white flight," that the flight can plausibly be said

to result from desegregation alone, and that therefore, as a matter of

fact, the "intradistrict" segregation violation lacked the relevant

consequences outside the district required to justify the District

Court's magnet concept.  With the arguable plausibility of each of these

assumptions seriously in question, it is simply rash to reverse the

concurrent factual findings of the District Court and the Court of

Appeals.  All the judges who spoke to the issue below concluded that

segregated schooling in the KCMSD contributed to the exodus of white

students from the district.  Among them were not only the judges most

familiar with the record of this litigation, Judge Clark of the District

Court and the three members of the Court of Appeals panel that has

retained jurisdiction over the case, see supra at ___, but also the five

judges who dissented from the denial of rehearing en banc in the Court

of Appeals (whose opinion the majority does not hesitate to rely on for

other purposes): [By 1985], "[w]hite flight" to private schools and to

the suburbs was rampant.



The district court, correctly recognizing that at least part of this

problem was the consequence of the de jure segregation previously

practiced under Missouri constitutional and statutory law, fashioned a

remedial plan for the desegregation of the KCMSD. . . . 19 F.3d at  397

(Beam, J., dissenting from denial of rehearing en banc).  The reality is

that the Court today overturns the concurrent factual findings of the

District Court and the Court of Appeals without having identified any

circumstance in the record sufficient to warrant such an extraordinary

course of action. B



To the substantial likelihood that the Court proceeds on erroneous

assumptions of fact must be added corresponding errors of law.  We have

most recently summed up the obligation to correct the condition of de

jure segregation by saying that the duty of a former de jure district is

to take "whatever steps might be necessary to convert to a unitary

system in which racial discrimination would be eliminated root and

branch." Freeman, 503 U.S. at 486, quoting Green, 391 U.S. at   Although

the fashioning of judicial remedies to this end has been left, in the

first instance, to the equitable discretion of the district courts, in

Milliken I we established an absolute limitation on this exercise of

equitable authority.  "[W]ithout an interdistrict violation and

interdistrict effect, there is no constitutional wrong calling for an

interdistrict remedy."  Milliken I, 418 U.S. at 745.



The Court proceeds as if there is no question but that this proscription

applies to this case.  But the proscription does not apply.  We are not

dealing here with an interdistrict remedy in the sense that Milliken I

used the term.  In the Milliken I litigation, the District Court had

ordered 53 surrounding school districts to be consolidated with the

Detroit school system, and mandatory busing to be started within the

enlarged district, even though the court had not found that any of the

suburban districts had acted in violation of the Constitution. The

metropolitan remedy would require, in effect, consolidation of 54

independent school districts historically administered as separate units

into a vast new super school district. Id. at 743.  It was this

imposition of remedial measures on more than the one wrongdoing school

district that we termed an "interdistrict remedy": We . . . turn to

address, for the first time, the validity of a remedy mandating

cross-district or interdistrict consolidation to remedy a condition of

segregation found to exist in only one district. Id. at 744.  And it was

just this subjection to court order of school districts not shown to

have violated the Constitution that we deemed to be in error: Before the

boundaries of separate and autonomous school districts may be set aside

by consolidating the separate units for remedial purposes or by imposing

a cross-district remedy, it must first be shown that there has been a

constitutional violation within one district that produces a significant

segregative effect in another district. . . .



. . .  To approve the remedy ordered by the court would impose on the

outlying districts, not shown to have committed any constitutional

violation, a wholly impermissible remedy based on a standard not hinted

at in Brown I and II or any holding of this Court. Id. at



We did not hold, however, that any remedy that takes into account

conditions outside of the district in which a constitutional violation

has been committed is an "interdistrict remedy," and, as such, improper

in the absence of an "interdistrict violation."  To the contrary, by

emphasizing that remedies in school desegregation cases are grounded in

traditional equitable principles, id. at  we left open the possibility

that a district court might subject a proven constitutional wrongdoer to

a remedy with intended effects going beyond the district of the

wrongdoer's violation, when such a remedy is necessary to redress the

harms flowing from the constitutional violation.



The Court, nonetheless, reads Milliken I quite differently.  It reads

the case as categorically forbidding imposition of a remedy on a guilty

district with intended consequences in a neighboring innocent district,

unless the constitutional violation yielded segregative effects in that

innocent district.  See, e.g., ante at ___ ("But this interdistrict goal

[of attracting nonminority students from outside the KCMSD schools] is

beyond the scope of the intradistrict violation identified by the

District Court" (emphasis deleted).).



Today's decision therefore amounts to a redefinition of the terms of

Milliken I, and consequently to a substantial expansion of its

limitation on the permissible remedies for prior segregation.  But that

is not the only prior law affected by today's decision.  The Court has

not only rewritten Milliken I; it has effectively overruled a subsequent

case expressly refusing to constrain remedial equity powers to the

extent the Court does today, and holding that courts ordering relief

from unconstitutional segregation may, with an appropriate factual

predicate, exercise just the authority that the Court today eliminates.



Two Terms after Milliken, we decided Hills v. Gautreaux, 425 U.S. 284

(1976), in a unanimous opinion by Justice Stewart.  The District Court

in Gautreaux had found that the United States Department of Housing and

Urban Development (HUD) and the Chicago Housing Authority (CHA) had

maintained a racially segregated system of public housing within the

City of Chicago, in violation of various constitutional and statutory

provisions.  There was no indication that the violation had produced any

effects outside the city itself.  The issue before us was whether "the

remedial order of the federal trial court [might] extend beyond

Chicago's territorial boundaries."  Id. at 286.  Thus, while JUSTICE

O'CONNOR suggests that Gautreaux may not have addressed the propriety of

a remedy with effects going beyond the district in which the

constitutional violation had occurred, ante at ___, her suggestion

cannot be squared with our express understanding of the question we were

deciding: the permissibility in light of Milliken of "interdistrict

relief for discrimination in public housing in the absence of a finding

of an interdistrict violation." Gautreaux, supra, at 292.



HUD argued that the case should turn on the same principles governing

school desegregation orders and that, under Milliken I, the District

Court's order could not look beyond Chicago's city limits, because it

was only within those limits that the constitutional violation had been

committed.  425 U.S. at   We agreed with HUD that the principles of

Milliken apply outside of the school desegregation context, 425 U.S. at

294, and n. 11, but squarely rejected its restricted interpretation of

those principles and its view of limited equitable authority to remedy

segregation.  We held that a district court may indeed subject a

governmental perpetrator of segregative practices to an order for relief

with intended consequences beyond the perpetrator's own subdivision,

even in the absence of effects outside that subdivision, so long as the

decree does not bind the authorities of other governmental units that

are free of violations and segregative effects: [Milliken's] holding

that there had to be an interdistrict violation or effect before a

federal court could order the crossing of district boundary lines

reflected the substantive impact of a consolidation remedy on separate

and independent school districts.  The District Court's desegregation

order in Milliken was held to be an impermissible remedy not because it

envisioned relief against a wrongdoer extending beyond the city in which

the violation occurred but because it contemplated a judicial decree

restructuring the operation of local governmental entities that were not

implicated in any constitutional violation. Id. at 296 (footnote

omitted).



In the face of Gautreaux's language, the Court claims that it was only

because the "`relevant geographic area for the purposes of the

[plaintiffs'] housing options [was] the Chicago housing market, not the

Chicago city limits,'" ante at ___, quoting Gautreaux, supra, at 299,

that we held that "`a metropolitan area remedy [was] not impermissible

as a matter of law,'" ante at ___, quoting Gautreaux, supra, at 306. 

See also ante at ___ (O'CONNOR, J., concurring).  But that was only half

the explanation.  Requiring a remedy outside the city in the wider

metropolitan area was permissible not only because that was the area of

the housing market even for people who lived within the city (thus

relating the scope of the remedy to the violation suffered by the

victims), but also because the trial court could order a remedy in that

market without binding a governmental unit innocent of the violation and

free of its effects.  In reject[ing] the contention that, since HUD's

constitutional and statutory violations were committed in Chicago,

Milliken precludes an order against HUD that will affect its conduct in

the greater metropolitan area, we stated plainly that [t]he critical

distinction between HUD and the suburban school districts in Milliken is

that HUD has been found to have violated the Constitution.  That

violation provided the necessary predicate for the entry of a remedial

order against HUD and, indeed, imposed a duty on the District Court to

grant appropriate relief. Gautreaux, 425 U.S. at 297.  Having found HUD

in violation of the Constitution, the District Court was obligated to

make every effort . . . to employ those methods [necessary] "to achieve

the greatest possible degree of [relief], taking into account the

practicalities of the situation," ibid. quoting Davis v. Board of School

Comm'rs of Mobile County, 402 U.S. 33, 37 (1971), and the District

Court's methods could include subjecting HUD to measures going beyond

the geographical or political boundaries of its violation. Nothing in

the Milliken decision suggests a per se rule that federal courts lack

authority to order parties found to have violated the Constitution to

undertake remedial efforts beyond the municipal boundaries of the city

where the violation occurred. 425 U.S. at 298.



On its face, the District Court's magnet school concept falls entirely

within the scope of equitable authority recognized in Gautreaux.   In

Gautreaux, the fact that the CHA and HUD had the authority to operate

outside the limits of the City of Chicago meant that an order to fund or

build housing beyond those limits would "not necessarily entail coercion

of uninvolved governmental units. . . ."  Id. at 298.  Here, by the same

token, the District Court has not sought to "consolidate or in any way

restructure" the SSDs, id. at  or, indeed, to subject them to any

remedial obligation at all.  The District Court's remedial measures go

only to the operation and quality of schools within the KCMSD, and the

burden of those measures accordingly falls only on the two proven

constitutional wrongdoers in this case, the KCMSD and the State.  And

insofar as the District Court has ordered those violators to undertake

measures to increase the KCMSD's attractiveness to students from other

districts and thereby to reverse the flight attributable to their prior

segregative acts, its orders do not represent an abuse of discretion,

but instead appear "wholly commensurate with the `nature and extent of

the constitutional violation.'"  Id. at 300, quoting Milliken I, 418

U.S. at 744.



The Court's failure to give Gautreaux its due points up the risks of its

approach to this case.  The major peril of addressing an important and

complex question without adequate notice to the parties is the virtual

certainty that briefing and argument will not go to the real point.  If

respondents had had reason to suspect that the validity of applying the

District Court's remedial concept of magnet schools in this case would

be the focus of consideration by this Court, they presumably would have

devoted significant attention to Gautreaux in their briefing.  As things

stand, the only references to the case in the parties' briefs were two

mere passing mentions by the Jenkins respondents and a footnote by the

State implying that Gautreaux was of little relevance here.  The State's

footnote says that, "in Gautreaux, there was evidence of suburban

discrimination and of the `extra-city impact of [HUD's] intracity

discrimination.'"  Brief for Petitioners 28, n. 18.  That statement,

however, is flatly at odds with Justice Stewart's opinion for the Court:

the Court of Appeals surmised that either an interdistrict violation or

an interdistrict segregative effect may have been present in this case. 

There is no support provided for either conclusion. . . .  [I]t is

apparent that the Court of Appeals was mistaken in supposing that the

[record contains] evidence of suburban discrimination justifying

metropolitan area relief. . . .  [And the Court of Appeals'] unsupported

speculation falls far short of the demonstration of a "significant

segregative effect in another district" discussed in the Milliken

opinion. Gautreaux, 425 U.S. at  n. 11.



After being misrepresented by the State and mentioned only briefly by

the other parties, Gautreaux's holding is now effectively overruled, for

the Court's opinion can be viewed as correct only on that assumption. 

But there is no apparent reason to reverse that decision, which

represented the judgment of a unanimous Court, seems to reflect

equitable common sense, and has been in the reports for two decades. 

While I would reserve final judgment on Gautreaux's future until a time

when the subject has been given a full hearing, I realize that, after

today's decision, there may never be an occasion for any serious

examination of Gautreaux.  If things work out that way, there will

doubtless be those who will quote from Gautreaux to describe today's

opinion as transform[ing] Milliken's principled limitation on the

exercise of federal judicial authority into an arbitrary and mechanical

shield for those found to have engaged in unconstitutional conduct. Id.

at 300.



I respectfully dissent. GINSBURG, J., dissenting



JUSTICE GINSBURG, dissenting.



I join JUSTICE SOUTER's illuminating dissent and emphasize a

consideration key to this controversy.



The Court stresses that the present remedial programs have been in place

for seven years.  Ante at ___.  But compared to more than two centuries

of firmly entrenched official discrimination, the experience with the

desegregation remedies ordered by the District Court has been

evanescent.



In 1724, Louis XV of France issued the Code Noir, the first slave code

for the Colony of Louisiana, an area that included Missouri.  Violette,

The Black Code in Missouri, in 6 Proceedings of the Mississippi Valley

Historical Association 287, 288 (B. Shambaugh ed. 1913).  When Missouri

entered the Union in 1821, it entered as a slave State.  Id. at 303.



Before the Civil War, Missouri law prohibited the creation or

maintenance of schools for educating blacks:  "No person shall keep or

teach any school for the instruction of negroes or mulattoes, in reading

or writing, in this State."  Act of February 16, 1847,  1, 1847 Mo.Laws

103.



Beginning in 1865, Missouri passed a series of laws requiring separate

public schools for blacks.  See, e.g., Act of March 29, 1866,  20, 1865

Mo.Laws 177.  The Missouri Constitution first permitted, then required,

separate schools.  See Mo.Const. 1865, Art. IX,  2; Mo.Const. 1875, Art.

XI,  3.



After this Court announced its decision in Brown v. Board of Education,

347 U.S. 483 (1954), Missouri's Attorney General declared these

provisions mandating segregated schools unenforceable.  See Jenkins v.

Missouri, 593 F.Supp. 1485, 1490 (WD Mo. 1984).  The statutes were

repealed in 1957, and the constitutional provision was rescinded in

1976.  Ibid.  Nonetheless, thirty years after Brown, the District Court

found that "the inferior education indigenous of the state-compelled

dual school system has lingering effects in the Kansas City, Missouri

School District."  593 F.Supp. at 1492.  The District Court concluded

that the State . . . cannot defend its failure to affirmatively act to

eliminate the structure and effects of its past dual system on the basis

of restrictive state law. Id. at 1505.  Just ten years ago, in June,

1985, the District Court issued its first remedial order.  Jenkins v.

Missouri, 639 F.Supp. 19 (WD Mo. 1985).



Today, the Court declares illegitimate the goal of attracting

nonminority students to the Kansas City, Missouri, School District, ante

at ___, and thus stops the District Court's efforts to integrate a

school district that was, in the 1984/1985 school year, sorely in need

and 68.3% black.  639 F.Supp. at 36; see also Jenkins v. Missouri, 672

F.Supp. 400, 411 (WD Mo. 1987) (reporting that physical facilities in

the School District had "literally rotted").  Given the deep, inglorious

history of segregation in Missouri, to curtail desegregation at this

time and in this manner is an action at once too swift and too soon. 

Cf. App. to Pet. for Cert. A-13 (Court of Appeals noted with approval

that the District Court had ordered the School District to submit plans

projecting termination of court-ordered funding at alternative

intervals, running from April 1993, of three, five, seven, or at most,

ten years). Footnotes REHNQUIST, J., lead opinion (Footnotes)



* Together with Missouri et al. v. Jenkins et al., also on certiorari to

the same court (see this Court's Rule 12.2).



1. "Magnet schools," as generally understood, are public schools of

voluntary enrollment designed to promote integration by drawing students

away from their neighborhoods and private schools through distinctive

curricula and high quality. Missouri v. Jenkins, 495 U.S. 33, 40, n. 6

(1990).



2. In April 1993, 16 years after this litigation began, the District

Court acknowledged that the KCMSD and the plaintiffs had "barely

addressed . . . how the KCMSD proposes to ultimately fund the school

system developed under the desegregation plan."  App. to Pet. for Cert.

A-123.  In the context of a proposal to extend funding of the

magnet-school program for ten additional years at a cost of over $500

million, the District Court noted that "[t]he District's proposals do

not include a viable method of financing any of the programs." Id. at

A-140.



3. Whether a federal court order granting salary increases to virtually

every employee of a school district -- including noninstructional

personnel -- as part of a school desegregation remedy conflicts with

applicable decisions of this court which require that remedial

components must directly address and relate to the constitutional

violation and be tailored to cure the condition that offends the

Constitution? Pet. for Cert. i.



4. See also Jenkins v. Missouri, 931 F.2d 1273, 1274 (CA8 1991) ("[T]he

district court in September 1984 held the State defendants and the KCMSD

liable for intradistrict segregation"); Jenkins v. Missouri, 931 F.2d

470, 475 (CA8 1991) ("In a June 5, 1984, order the district court

rejected claims of interdistrict violations"); Jenkins v. Missouri, 838

F.2d 260, 264 (CA8 1988) ("In this case, the plaintiffs made

unsuccessful claims against the State as well as the suburban, federal,

and Kansas defendants for interdistrict relief.  They also made

successful intradistrict claims against the State and KCMSD"); Jenkins

v. Missouri, 807 F.2d 657, 669-670 (CA8 1986) (en banc) ("[T]he argument

that KCMSD officially sanctioned suburban flight looks first to KCMSD's

violation which the district court clearly found to be only

intradistrict in nature").



5. See also Green v. School Bd. of New Kent County, 391 U.S. 430, 432

(1968) (approving a desegregation plan which had a racial composition of

57% black and 43% white); Wright v. Council of City of Emporia, 407 U.S.

451, 457 (1972) (approving a desegregation plan which had a racial

composition of 66% black and 34% white); United States v. Scotland Neck

City Bd. of Ed., 407 U.S. 484, 491, n. 5 (1972) (approving implicitly a

desegregation plan which had a racial composition of 77% black and 22%

white).



6. Prior to 1954, Missouri mandated segregated schools for black and

white children.  Jenkins v. Missouri, 593 F.Supp. 1485, 1490 (WD Mo.

1984).  Immediately after the Court's decision in Brown v. Board of

Education, 347 U.S. 483 (1954), the State's Attorney General issued an

opinion declaring the provisions that mandated segregation

unenforceable.  593 F.Supp. at 1490.  In the 1954-1955 school year,

18.9% of the KCMSD's students were black.  807 F.2d at 680.  The KCMSD

became 30% black in the 1961-1962 school year, 40% black in the

1965-1966 school year, and 60% black in the 1975-1976 school year. 

Ibid.  In 1977, the KCMSD implemented the 6C desegregation plan in order

to ensure that each school within the KCMSD had a minimum minority

enrollment of 30%.  639 F.Supp. at 35.  Overall enrollment in KCMSD

decreased by 30% from the time that the 6C plan first was implemented

until 1986.  Id. at 36.  During the same time period, white enrollment

decreased by 44%.  Ibid.



7. Compare n. 4, supra, and Jenkins, 807 F.2d at 662 ("[N]one of the

alleged discriminatory actions committed by the State or the federal

defendants ha[s] caused any significant current interdistrict

segregation"), with Jenkins v. Missouri, 855 F.2d 1295, 1302 (CA8 1988)

("These holdings are bolstered by the district court's findings that the

preponderance of black students in the district was due to the State and

KCMSD's constitutional violations, which caused white flight").



8. During the hearing on the liability issue in this case, there was an

abundance of evidence that many residents of the KCMSD left the district

and moved to the suburbs because of the district's efforts to integrate

its schools. 1 App. 239; see also Scotland Neck City Bd. of Ed., 407

U.S. at 491 (recognizing that implementation of a desegregation remedy

may result in "white flight").



9. JUSTICE SOUTER construes the Court of Appeals' determination to mean

that the violations by the State and the KCMSD did not cause segregation

within the limits of each of the SSD's.  Post at ___.  But the Court of

Appeals would not have decided this question at the behest of these

plaintiffs -- present and future KCMSD students -- who have no standing

to challenge segregation within the confines of the SSD's.  Cf. Lujan v.

Defenders of Wildlife, 504 U.S. 555, (1992).  Ergo, the Court of Appeals

meant exactly what it said:  the requirements of Milliken I had not been

met because the District Court's specific findings "negate current

significant interdistrict effects."  Jenkins, 807 F.2d at 672.



10. To the extent that the District Court has adopted the quality

education program to further the goal of desegregative attractiveness,

that goal is no longer valid.  See supra, at ___. THOMAS, J., concurring

(Footnotes)



1. It appears that the low achievement levels were never properly

attributed to any discriminatory actions on the part of the State or of

KCMSD.  The District Court simply found that the KCMSD's test scores

were below national norms in reading and mathematics.  639 F.Supp. at

25.  Without more, these statistics are meaningless.



2.  The studies cited in Brown I have received harsh criticism.  See,

e.g., Yudof, School Desegregation:  Legal Realism, Reasoned Elaboration,

and Social Science Research in the Supreme Court, 42 L. & Contemp.

Probs. 57, 70 (Autumn 1978); L. Graglia, Disaster by Decree:  The

Supreme Court Decisions on Race and the Schools 27-28 (1976).  Moreover,

there simply is no conclusive evidence that desegregation either has

sparked a permanent jump in the achievement scores of black children, or

has remedied any psychological feelings of inferiority black

schoolchildren might have had.  See, e.g., Bradley & Bradley, The

Academic Achievement of Black Students in Desegregated Schools, 47

Rev.Educational Research 399 (1977); N. St. John, School Desegregation: 

Outcomes for Children (1975); Epps, The Impact of School Desegregation

on Aspirations, Self-Concepts and Other Aspects of Personality, 39 L. &

Contemp. Probs. 300 (Spring 1975).  Contra Crain & Mahard, Desegregation

and Black Achievement:  A Review of the Research, 42 L. & Contemp.

Probs. 17 (Summer 1978); Crain & Mahard, The Effect of Research

Methodology on Desegregation-Achievement Studies:  A Meta-Analysis, 88

Am.J. of Sociology 839 (1983).  Although the gap between black and white

test scores has narrowed over the past two decades, it appears that this

has resulted more from gains in the socioeconomic status of black

families than from desegregation.  See Armor, Why is Black Educational

Achievement Rising?, 108 The Public Interest 65, 77-79 (Summer 1992).



3. As Blackstone wrote: [A] set of great and eminent lawyers . . . have

by degrees erected the system of relief administered by a court of

equity into a regular science, which cannot be attained without study

and experience, any more than the science of law, but from which, when

understood, it may be known what remedy a suitor is entitled to expect,

and by what mode of suit, as readily and with as much precision, in a

court of equity as in a court of law. 3 Blackstone at 440-441.



4. The Federal Farmer particularly feared the combination of equity and

law in the same federal courts: It is a very dangerous thing to vest in

the same judge power to decide on the law, and also general powers in

equity; for if the law restrain him, he is only to step into his shoes

of equity, and give what judgment his reason or opinion may dictate; we

have no precedents in this country, as yet, to regulate the divisions in

equity as in Great Britain; equity, therefore, in the supreme court for

many years will be mere discretion. Federal Farmer No. 3, October 10,

1787, in 2 Storing 244.  In such a system, the Anti-Federalist writer

concluded, there would not be "a spark of freedom" to be found.  Ibid.



5.  Certain aspects of this desegregation plan -- for example,

compensatory educational programs and orders that the State pay for half

of the costs -- come perilously close to abrogating the State's Eleventh

Amendment immunity from federal money damage awards.  See Edelman v.

Jordan, 415 U.S. 651, 677 (1974) ("a federal court's remedial power . .

. may not include a retroactive award which requires the payment of

funds from the state treasury").  Although we held in Milliken II, 433

U.S. 267 (1977), that such remedies did not run afoul of the Eleventh

Amendment, id. at 290, it is difficult to see how they constitute purely

prospective relief rather than retrospective compensation.  See P.

Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The

Federal Courts and the Federal System 1191-1192 (3d ed. 1988).  Of

course, the state treasury inevitably must fund a State's compliance

with injunctions commanding prospective relief, see Edelman, supra, at

668, but that does not require a State to supply money to comply with

orders that have a backward-looking, compensatory purpose.



6. First, the District Court set out to achieve some unspecified levels

of racial balance in the KCMSD schools and to raise the test scores of

the school districts as a whole.  639 F.Supp. at 24, 38.  In order to

achieve that goal, the court ordered quality education programs to

address the "system wide reduction in student achievement" caused by

segregation, even though the court never specified how or to what extent

the dual system had actually done so.  Id. at 46-51.  After the State

had spent $220 million and KCMSD had achieved a AAA rating, see ante at

___, the District Court decided that even further measures were needed. 

In 1986, it ordered a massive magnet school and capital improvement plan

to attract whites into KCMSD.  1 App. 130-193.  In 1987, the district

court decided that KCMSD needed better instructional staff and ordered

new hiring.  Ante at 6.  In 1992, the District Court found that KCMSD

was having trouble attracting faculty and staff, and ordered a round of

salary increases for virtually all employees.  Ante at ___.  Every year,

the District Court holds a proceeding to review budget proposals and

educational policies for KCMSD, and it has formed a "desegregation

monitoring committee" to assess the implementation of its decrees.  One

need only review the District Court's first remedial order in 1984 to

comprehend the level of detail with which it has made decisions

concerning construction, facilities, staffing, and educational policy. 

639 F.Supp. 19; see also Jenkins I, 495 U.S. at 60-61 (KENNEDY, J.,

concurring in part and concurring in judgment). SOUTER, J., dissenting

(Footnotes)



1. In related litigation about the schools of St. Louis, the Eighth

Circuit has noted that, [b]efore the Civil War, Missouri prohibited the

creation of schools to teach reading and writing to blacks.  Act of Feb.

16, 1847,  1, 1847 Mo. Laws 103.  State-mandated segregation was first

imposed in the 1865 Constitution, Article IX  2.  It was reincorporated

in the Missouri Constitution of 1945:  Article IX specifically provided

that separate schools were to be maintained for "white and colored

children."  In 1952, the Missouri Supreme Court upheld the

constitutionality of Article IX under the United States Constitution. 

Article IX was not repealed until 1976. Liddell v.Missouri, 731 F.2d

1294, 1305-1306 (CA8 1984) (case citations and footnote omitted).



2. JUSTICE O'CONNOR suggests that I am saying something inconsistent

with the position I took in Bray v. Alexandria Women's Health Clinic,

506 U.S. ___ (1993), see ante at ___, but her claim rests on a

misunderstanding of my position in that case.  I did not think that, in

Bray, we could reach the question whether respondents' claims fell

within the "prevention clause" of 42 U.S.C.  1985(3) simply because the

question "`was briefed, albeit sparingly, by the parties prior to the

first oral argument.'"  Ante at ___.  Rather, I said that "[t]he

applicability of the prevention clause is fairly included within the

questions presented, especially as restated by respondents. . . . " 

Bray, supra, at ___ (SOUTER, J., concurring in judgment in part and

dissenting in part).  Thus, the question was literally before us (as

JUSTICE O'CONNOR believes the foundational question is before us under

the second of the State's questions).  What is not debatable is that

Bray was not preceded by prior litigation indicating we would not

consider the "prevention clause" issue, whereas this case was preceded

by a refusal to take the very foundational issue that JUSTICE O'CONNOR

argues is within the literal terms of the second question focusing on

salaries.  See infra.  I obviously thought the Court was wrong to reject

supplemental briefing on the prevention clause, but that rejection was a

far cry from refusing to take the issue.



3. There is no claim of anything unreasonable in the salary increases

merely because the District Court has ordered them, whereas they might

otherwise have been set by collective bargaining.  For that matter, the

Court of Appeals observed that the District Court has not replaced

collective bargaining in the KCMSD with a rubber stamping of union

requests, but rather has "juridically pruned applications of funding

that have been presented to it,"  13 F.3d at 1174, ordering salary

increases that have been far smaller than those requested by the union. 

See, e.g., App. to Pet. for Cert. A-102, A-104 to A-106 (Order of June

30, 1993).



4. This was not the only, or even the principal, purpose of the magnet

schools.  The District Court found that magnet schools would assist in

remedying the deficiencies in student achievement in the KCMSD, see

supra at ___.  Moreover, while the Court repeatedly describes the magnet

school program as looking beyond the boundaries of the district, the

program is primarily aimed not at drawing back white children whose

parents have moved to another district, but rather at drawing back

children who attend private schools while living within the geographical

confines of the KCMSD, whose population remains majority white, Jenkins,

855 F.2d at 1302-1303.  See 1 App. 132 (Order of Nov. 12, 1986) ("Most

importantly, the Court believes that the proposed magnet plan is so

attractive that it would draw nonminority students from the private

schools who have abandoned or avoided the KCMSD, and draw in additional

nonminority students from the suburbs").  As such, a substantial impetus

for the District Court's remedy does not consider the world beyond

district boundaries at all, and much of the Court's opinion is of little

significance to the case before it.



5. JUSTICE O'CONNOR also rests on supposition.  See ante at ___ ("In

this case, it may be the `myriad factors of human existence,' that have

prompted the white exodus from the KCMSD . . .") (citation omitted).



6. The Court states that the Court of Appeals would not have decided the

question whether the State and the KCMSD's violations produced

segregative effects in the SSDs, as respondents lacked standing to raise

the issue.  Ante at ___, n. 9.  This statement eludes explanation.  In

Milliken I, 418 U.S. 717 (1974), we held that, before a district court

may order the mandatory interdistrict reassignment of students

throughout a metropolitan area, it must first find either that multiple

school districts participated in the unconstitutional segregation of

students, or that the violation within a single school district

"produce[d] . . . significant segregative effect[s]" in the others.  Id.

at   See ante at ___; ante at ___ (O'CONNOR, J., concurring); see also

infra at ___.  In the earlier stages of this litigation, the Jenkins

respondents sought the mandatory reassignment of students throughout the

Kansas City metropolitan area, and the District Court, 3 App. 721-820

(Order of June 5, 1984), and the Court of Appeals, Jenkins, 807 F.2d at

665-666, 672, rejected such relief on the grounds that the requirements

of Milliken I had not been satisfied.  The Court is now saying that

respondents lacked standing to raise the issue of interdistrict

segregative effects, and that the District Court and the Court of

Appeals lacked the authority to reach the issue, even though that is

precisely what was required of them under Milliken I.



7. Thus, the Court errs in suggesting that the District Court has sought

to do here indirectly what we held the District Court could not do

directly in Milliken I.  Ante at ___.  The District Court here has not

attempted, directly or indirectly, to impose any remedial measures on

school districts innocent of a constitutional violation or free from its

segregative effects.



8. JUSTICE O'CONNOR thinks I place undue emphasis on the Gautreaux

Court's footnote, turning it into an "island, entire of itself . . . ," 

ante at ___, but it cannot be shrunk to the dimension necessary to

support the majority's result.  According to JUSTICE O'CONNOR, Gautreaux

holds that "territorial transgression" of any kind is permissible only

upon a showing that [an] intradistrict constitutional violation [has]

produced significant interdistrict segregative effects. . . . Ante at

___.  She finds Gautreaux significant only in reversing the Court of

Appeals' finding that such effects had been established on the record of

that case, and she understands that the Court remanded the case to the

District Court with the understanding that it would order relief going

beyond the City of Chicago's boundaries only if it found significant

interdistrict segregative effects to exist.  Ante at ___.   But this is

an implausible reading.  JUSTICE O'CONNOR is correct that, in Gautreaux,

we reiterated the importance of Milliken I's requirement of significant

interdistrict segregative effects, but we did so only in connection with

the type of relief at issue in Milliken I, that involving "direct

federal judicial interference with local governmental entities" not

shown to have violated the Constitution.  Gautreaux, 425 U.S. at 294;

see generally id. at   As the language I have quoted above demonstrates,

we made it very clear in Gautreaux that the District Court could order

relief going beyond the boundaries of the City of Chicago without any

finding of such effects, because that relief would impose no obligation

on governmental units innocent of a constitutional violation and free of

its effects.  Indeed, when we summarized our holding at the conclusion

of our opinion, we made the point yet again. In sum, there is no basis

for the petitioner's claim that court-ordered metropolitan area relief

in this case would be impermissible as a matter of law under the

Milliken decision.  In contrast to the desegregation order in that case,

a metropolitan area relief order directed to HUD would not consolidate

or in any way restructure local governmental units. Id. at   While

JUSTICE O'CONNOR, ante at ___, (and the Court, ante at ___) seeks to

make much of the fact that we did not order metropolitan relief

ourselves in Gautreaux, but rather remanded the case to the District

Court, we did so because we recognized that the question of what relief

to order was a matter for the District Court in the first instance. The

nature and scope of the remedial decree to be entered on remand is a

matter for the District Court in the exercise of its equitable

discretion, after affording the parties an opportunity to present their

views. Id. at 306.  Nowhere did we state that, before the District Court

could order metropolitan area relief, it would first have to make

findings of significant segregative effects extending beyond the City of

Chicago's borders.

