[92] BALDOCK, Circuit Judge, dissenting.

It is ironic that the capstone of this court's opinion is a quote from Justice Powell, concerning the importance of securing quality education free from "protracted and debilitating battles over court-ordered student transportation." Keyes v. School Dist. No. 1, 413 U.S. 189, 253, 93 S.Ct. 2686, 2719, 37 L.Ed.2d 548 (1973) (Powell, J., concurring in part and dissenting in part); see Court's Opinion at 1505 (quoting same). Here, despite the school district's continued unitary status, this court retains jurisdiction and now orders the school district to racially balance the elementary schools which most certainly will require busing. Court's Opinion at 1506. The court also orders the school district to racially balance the elementary faculties. Id. The district court is to proceed "with deliberate speed." Id. at 1505. See W. Douglas, The Court Years 115 (1980) (discussing delay attributable to Justice Frankfurter's "all deliberate speed" language in Brown v. Board of Educ. (Brown II), 349 U.S. 294, 301, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955)).

Apparently, Justice Powell's view concerning transportation of elementary students was overlooked by this court. In fact, in the very next sentence of the passage relied upon by this court, Court's Opinion at 1505, Justice Powell expressed his disapproval: "The single most disruptive element in education today is the widespread use of compulsory transportation, especially at elementary grades." Keyes, 413 U.S. at 253, 93 S.Ct. at 2719 (Powell J., concurring in part and dissenting in part). He urged a return "to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert." Id.; see also Columbus, 443 U.S. at 479, 486-87, 99 S.Ct. at 2991 (Powell, J., dissenting). Justice Powell's views concerning elementary transportation and other educational objectives, while perhaps not persuasive concerning an officially dual school system in 1973 when Keyes was decided, would seem to have greater force where, as here, a school system has achieved unitary status and seeks to enhance parental involvement, retain students and improve educational opportunity through a return to neighborhood schooling, only in grades 1-4, at the elementary level. The "more balanced evaluation" of educational and social objectives is precisely what is missing from this court's resolution of the case.

I.

This court's opinion is faulty for three reasons: 1) improper reliance upon principles concerning the modification and termination of injunctions which are inapposite in the school desegregation context, 2) inadequate recognition of the legal effect of the school district's unitary status, and 3) insufficient deference to the factual findings of the district court concerning segregative intent.

A.

This case arises in the unusual procedural context of the district court finding the school system unitary in 1977 and terminating jurisdiction of the case. The case was revived when the school district adopted a new student assignment plan, although a 1972 decree had not been lifted. In Dowell v. Board of Educ., 795 F.2d 1516 (10th Cir.), cert. denied, 479 U.S. 938, 107 S.Ct. 420, 93 L.Ed.2d 370 (1986), this court determined that reopening the case was appropriate so that the plaintiffs would have an opportunity to be heard on the constitutionality of the plan. Id. at 1519.

Although Dowell did not express an opinion concerning the constitutionality of the neighborhood school plan at the elementary level, it cast the dispute in terms of injunction modification and termination law, and decided that a finding of unitariness does not alter the defendants' "duty to persist in the elimination of the vestiges of segregation." 795 F.2d at 1520. Of course, a finding of unitariness is inconsistent with remaining vestiges of state-imposed segregation (a constitutional violation), but in this case, the court adheres to its erroneous decision that "a finding of unitariness [does not] mandate the later dissolution of the decree without proof of a substantial change in circumstances which led to issuance of that decree." Court's Opinion at 1492.

Although the court in Dowell did not intend, even implicitly, to address the ultimate issue of constitutionality of the neighborhood school plan, 795 F.2d at 1523, the court framed the issue so as to give no practical effect to the 1977 unitariness finding. The school board retained the burden of proof that its conduct was not segregative; the plaintiffs only were required to prove that the 1972 decree had been violated. Id. In its opinion, the court has adopted that approach and has given no effect to the principle that "the differentiating factor between de jure and . . . de facto segregation . . . is purpose or intent to segregate." Keyes, 413 U.S. at 208, 93 S.Ct. at 2697 (emphasis in original). This case really turns on the responsibility of these defendants to ameliorate the effects of residential separation so often found in urban locations, including Oklahoma City.

It is beyond dispute that the school board cannot take actions intended to perpetuate or reestablish a dual school system. See Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979 (concerning student assignment, school construction and closings); Columbus, 443 U.S. 449, at 460, 99 S.Ct. 2941 at 2948, 61 L.Ed.2d 666 (concerning school construction and closings); Swann, 402 U.S. at 21, 91 S.Ct. at 1278 (same). Here, the school board deviated from the student assignment plan contained in the 1972 decree (grades 1-4) because the plan no longer was equitable and the board sought to improve the quality of elementary education. Although the school board should have proceeded to district court to have the 1972 decree dissolved, its apparent belief that the 1977 finding of unitariness dissolved the decree was certainly understandable given the state of the law at the time. In any event, we now consider whether the 1972 decree should be enforced or modified. Court's Opinion at 1487.

At the hearing below, both parties sought to modify the district court's 1972 decree requiring implementation of the Finger Plan. The defendants sought to retain their neighborhood school plan at the elementary level. The plaintiffs sought to eliminate, at least in part, the neighborhood school plan and substitute in its place a new plan, prepared by Dr. Gordon Foster, which involved pairing and clustering schools and changing the grade structure of several elementary schools. The plaintiffs contended that the proposed plan was consistent with the 1972 decree, which they maintained had become inequitable, and they contended that the proposed plan was better than the neighborhood school plan. See rec. vol. I, doc. 17, app. A (final pretrial order — plaintiffs' contentions).

Because the school district had attained and maintained unitary status, plaintiffs were required to demonstrate that the district had lost its unitary status through purposefully segregative school board actions. When the entirety of Supreme Court desegregation precedent is applied in the context of a unitary school district, I do not agree with this court that the findings of the district court are clearly erroneous. Rather those findings are supported by the record and merely reflect the district court's choice among expert and lay testimony, which at times conflicted, concerning direct and circumstantial evidence of segregative intent.

Moreover, I question retention of jurisdiction in this case given the unitary status of the school district. Four other circuits hold that current desegregation law does not envision continued federal jurisdiction in the affairs of local school districts in perpetuity once a school district becomes unitary. See United States v. Overton, 834 F.2d 1171, 1176, 1174-77 (5th Cir. 1987) ("We see Dowell's effort to declare a school district to be unitary while retaining jurisdiction as an illusion that denies the essence of unitariness.") (Higginbotham, J.); Morgan v. Nucci, 831 F.2d 313, 318 (1st Cir. 1987) ("Although the [Supreme] Court has produced no formula for recognizing a unitary school system, the one thing certain about unitariness is its consequences: the mandatory devolution of power to local authorities."); Riddick v. School Bd., 784 F.2d 521, 535, 534-39 (4th Cir. 1986); ("[O]nce the goal of a unitary school system is achieved, the district court's role ends."); Vaughns v. Board of Educ., 758 F.2d 983, 988 (4th Cir. 1985) ("A district court's jurisdiction to grant further relief in school desegregation cases in not perpetual. . . . Once a school system has achieved unitary status, a court may not order further relief to counteract resegregation that does not result from the school system's intentionally discriminatory acts."); Spangler v. Pasadena Bd. of Educ., 611 F.2d 1239, 1241 (9th Cir. 1979); Id. at 1247 ("Retention of jurisdiction when there is no longer a demonstrated need to monitor compliance may defeat important governmental and personal interests. . . . There is no warrant for retaining further jurisdiction in the case, and the district court should enter an order relinquishing all further jurisdiction.") (Kennedy, J., concurring); but see United States v. Board of Educ., 794 F.2d 1541, 1543 (11th Cir. 1986) (per curiam) (when parties have relied on desegregation orders to make commitment to start desegregation process, it may be inappropriate to vacate such orders even after unitary status attained). Contra Dowell, 795 F.2d at 1516 (10th Cir.). This court's "semantic recasting of unitary status," Overton, 834 F.2d at 1176, in terms of prohibitory injunction law aimed at private parties and relief from judgment, Fed.R.Civ.P. 60(b), displaces the concept of unitary status and insures federal involvement, even in the absence of a constitutional violation.

To impose onerous duties on the school board, this court improperly relies upon desegregation passages involving dual systems charged with the affirmative duty to eradicate de jure segregation and its vestiges. See, e.g., Court's Opinion at 1499 (relying upon Swann's quotation of Green v. County School Bd., 391 U.S. 430, 439, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716 (1968), 402 U.S. at 13, 91 S.Ct. at 1274, for affirmative duty); Court's Opinion at 1503 (relying upon Swann, 402 U.S. at 28, 91 S.Ct. at 1282, for discussion of neutral assignment plans which may not be compatible with affirmative duty); Court's Opinion at 1503 (relying upon Davis v. Board of School Comm'rs, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577 (1971), for concept that desegregation plan must be effective, given remedial responsibility of local board); Court's Opinion at 1493, 1504-05 (relying upon Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979, concerning board's affirmative duty not to perpetuate or reestablish dual school system and the heavy burden the board faces in explaining actions not consistent with the affirmative duty). We have a very different situation in this case — this board has met its affirmative duty and no longer is under "an unsatisfied duty to liquidate a dual system." See Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979.

Under any test in which segregative intent is relevant, I cannot agree that the neighborhood school plan for the elementary grades 1-4 had "the effect of making the District ` un-unitary' by reviving the effects of past discrimination." Court's Opinion at 1499 (emphasis in original); see also id. at 1504 ("the Plan restores the effects of past discriminatory intent remedied by the decree") (emphasis in original). Of course, the word "un-unitary" seems unnecessary in the lexicon of school desegregation law; an "un-unitary" system is a dual system, and the inquiry here is whether the neighborhood school plan signals the return of a dual system. This court overturns the district court's decision to dissolve the injunction implementing the 1972 desegregation plan for two reasons: 1) because the district court "failed to address or distinguish plaintiffs' contrary evidence," and 2) because the district court "cast the evidence on which it relied in a form to provide an answer to the single question of discriminatory intent. . . ." Id. at 1504. Both reasons given by this court are wanting.

B.

Under Fed.R.Civ.P. 52(a) and Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985), we are not at liberty to reverse the district court's factual findings unless they are clearly erroneous. Where, as here, "there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Id. Admittedly, the failure to address truly contrary evidence may leave the door open for the court of appeals to find internal inconsistencies or implausibility in the evidence relied upon, see id. at 575, 105 S.Ct. at 1512, but the ultimate inquiry is whether the "district court's account of the evidence is plausible in light of the record viewed in its entirety." Id. at 574, 105 S.Ct. at 1511. Considering what issues are material in this lawsuit, I would affirm the district court. There is ample evidence to support the finding that, even with the introduction of a neighborhood school plan in grades 1-4, the school board still operates a unitary system.

One of the most serious technical problems with this court's decision is the methodology of identifying racially disproportionate schools after implementation of the neighborhood plan. This court claims that 32 out of 64, or one-half, of the elementary schools are now "one-race majority schools." Court's Opinion at 1493, 1497, 1502. We are told that only "[t]hirty-two elementary schools remained racially mixed." Id. at 1487. This analysis is flawed. The district court properly was concerned with the emergence of 90+ black schools as a result of the neighborhood plan. Dowell v. Bd. of Educ., 677 F. Supp. 1503, 1509-10 (W.D.Okla. 1987). Here, this court correctly notes that 11 out of 64 elementary schools are 90% + black after the plan. Court's Opinion at 1486-87. But then the court adds to the number of racially disproportionate schools by deciding that if a school has less than 10.7% black enrollment, it is not racially mixed, regardless of the presence of other minorities. See id. at 1487, 1487 n. 2. A significant portion of the data in this case only distinguished between black students and other students.

While such date clearly indicates concentration of black students, such an approach fails to recognize the presence of other minorities which increased since 1972; in 1985-86, non-black minorities comprised 13.3% of the elementary system enrollment (Hispanic, 6.8%; Native American, 4.2%; Asian-American, 2.3%). See Dowell, 677 F. Supp. at 1510; def. ex. 63, reproduced in Appellees' Addendum to Brief.

This is a school district in which the elementary students are 50.7% white, 36.0% black and 13.3% other minority (total minority percentage of 49.3). Dowell, 677 F. Supp. at 1510 (1985-86). If we compare the white enrollment with the aggregated number of minority students as is appropriate under Keyes, 413 U.S. at 197-98, 93 S.Ct. at 2691-92; see also Riddick, 784 F.2d at 527 n. 7 (minority percentage aggregated, not expressed solely in terms of black enrollment), and as was done by the district court, 677 F. Supp. at 1509-10, the 21 extra schools identified by this court range from 13.8% (Lafayette) to 58.5% (Willard) minority enrollment — these extra 21 schools are not one-race schools, even if they do not contain the system-wide average (40%) of black students. Indeed, some of these schools approach the elementary system-wide minority percentage, e.g. Lee, 44.5% minority; Willard, 58.5%. Insofar as the permissible inference of segregative intent is concerned, the 21 schools identified by this court simply do not have the same implications as the eleven 90% + black schools. This is true notwithstanding Dr. Finger's reluctance to agree that schools which have more than 10% minority enrollment, but less than 10% black enrollment, are not segregated white schools. See Court's Opinion at 1496.

Indeed, one of the limitations of the 1972 Finger Plan is that it sought racial balance only with respect to black students. Rec. vol. III at 321. Dr. Biscoe, school administrator, was aware of this feature and testified that notwithstanding, it is important to look at total minority percentages, not just black, when evaluating the district. She said:

Since I work a lot with federal programs and attend a lot of those meetings, as I've gone around the country one thing I've noticed that happens in many of the school districts is that people look at the percent of minority students in their district, including Orientals, Native American students, Hispanic students.

Of course[,] if you look at our district in terms of total minority population as compared to white population, you get a totally different picture than if you just look at those data black-white.

Id. The district court correctly decided to aggregate minority percentages when reviewing the effects of the neighborhood plan.

Although the district court is criticized for its finding concerning intent, Court's Opinion at 1504, it is apparent that this court is merely reweighing the evidence and crediting the circumstantial evidence of segregative intent — namely the emergence of one-race schools. See id. at 1502-04. Of course, reweighing the evidence is not consistent with our appellate function. See 5A J. Moore J. Lucas, Moore's Federal Practice, ¶ 52.03[1] (1989). This court is under the mistaken impression that circumstantial evidence of segregative intent must be preferred in these types of cases. See Court's Opinion at 1503 (quoting Keyes v. School Dist. No. 1, 670 F. Supp. 1513, 1516 (D.Colo. 1987), appeal pending, Nos. 85-2814 87-2634 (10th Cir. submitted Jan. 17, 1989). Despite the court's contrary conclusion, the district court properly weighed all of the evidence and came to a permissible conclusion that there was an absence of segregative intent necessary support a constitutional violation.

C.

Another obvious problem with the court's resolution of this case is its reliance upon general principles concerning the modification of injunctions when principles specifically concerning the process of desegregation have been enunciated by the Supreme Court. This court relies upon the standard of United States v. Swift Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), an antitrust case, for the proposition that, despite unitariness, the school board must show that the condition the injunction was designed to protect against has abated and the failure to modify the injunction will result in extreme hardship to the school board. Court's Opinion at 1489-91. It is not enough that the constitutional violation has been remedied. Id. at 1490-91 ("The condition that eventuates as a function of the injunction cannot alone become the basis for altering the decree absent the Swift showing."). This court severs the integral link between the desegregation decree and an extant constitutional violation contending that "`an injunction takes on a life of its own and becomes an edict quite independent of the law it is meant of effectuate.'" Id. at 1490 (quoting T. Jost, From Swift to Stotts and Beyond: Modification of Injunctions in the Federal Courts, 64 Tex.L.Rev. 1101, 1105 (1986)). How ridiculous that an injunction, meant to effectuate the law, "becomes an edict quite independent of the law it is meant to effectuate." See id.

II.

Given the court's position on insuring prospective relief even in the absence of a constitutional violation, unitariness is not a bar to reconsideration of the decree. Court's Opinion at 1491. The court tempers its reliance on the exacting standard required for modification of injunctions by citing the dissenting portion (without so indicating) of Judge Higginbotham's opinion in United States v. Lawrence County School Dist., 799 F.2d 1031, 1056 (5th Cir. 1986) ("By its forward cast, an injunction contemplates change and thus must be sufficiently malleable to adapt the ordered relief to contemporary circumstances.") (Higginbotham J., concurring in part and dissenting in part). See Court's Opinion at 1491; see also Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424, 437, 96 S.Ct. 2697, 2705, 49 L.Ed.2d 599 (1976) (recognizing propriety of modification when there is continuing supervision). Moreover, Judge Higginbotham, writing for a unanimous panel, quite firmly has rejected this court's approach in Dowell. Overton, 834 F.2d at 1174-77.

Swift simply does not apply to the vast majority of desegregation decrees. In Spangler v. Pasadena Bd. of Educ., Justice (then Judge) Kennedy explained the inapplicability of Swift to a district court's termination of equitable jurisdiction in school desegregation cases. Spangler, 611 F.2d at 1245 n. 5.

Swift involved the efforts of antitrust defendants who had entered into a consent decree prohibiting anticompetitive actions to modify the decree by lifting some of its prohibitions. It is doubtful the case supports the district court's retention of jurisdiction. Swift establishes general criteria for dissolution or modification of prohibitory injunctions against private wrongdoers. More recent Supreme Court desegregation decisions have established specific criteria for dissolution of regulatory injunctions imposed upon public school authorities . . . [T]hese criteria recognize (1) that the proper function of a school desegregation decree is remedial, and (2) necessary concern for the important values of local control of public school systems dictates that a federal court's regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination. See Milliken v. Bradley [Milliken II], . . . 433 U.S. [267,] at 280-82, 97 S.Ct. 2749, 2757-58, 53 L.Ed.2d 745 [(1977)].

Id. Justice Kennedy's reasoning is equally applicable to this court's retention in perpetuity of equitable jurisdiction over a unitary system, using the desegregation decree as the vehicle.

Virtually all of the cases relied upon by this court in its application of Swift involve unsuccessful attempts to obtain, modify or dissolve injunctions which forbid or limit private commercial conduct; in the main, they concern prohibitory private injunctions. See Court's Opinion at 1489-91; SEC v. Blinder, Robinson Co., 855 F.2d 677, 679-80 (10th Cir. 1988) (declining to vacate injunction prohibiting securities firm from engaging in deceptive practices), cert. denied, ___ U.S. ___, 109 S.Ct. 1172, 103 L.Ed.2d 230 (1989); EEOC v. Safeway Stores, Inc., 611 F.2d 795, 797-98, 799 n. 7 (10th Cir. 1979) (Title VII consent decree not modified), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 809 (1980); SEC v. Thermodynamics, Inc., 464 F.2d 457, 458 (10th Cir. 1972) (declining to modify injunction prohibiting individual from violating registration and antifraud provisions of 1933 Act), cert. denied, 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 588 (1973); SEC v. Jan-Dal Oil Gas, Inc., 433 F.2d 304, 305 (10th Cir. 1970) (reinstating injunction prohibiting company and individual from selling mineral interests or any other security in violation of 1933 Act); Humble Oil Refining Co. v. American Oil Co., 405 F.2d 803, 807 n. 1 (8th Cir.) (declining to modify injunction prohibiting energy company from using trademark or trade name), cert. denied, 395 U.S. 905, 89 S.Ct. 1745, 23 L.Ed.2d 218 (1969); but see United States v. W.T. Grant Co., 345 U.S. 629, 630, 73 S.Ct. 894, 896, 97 L.Ed. 1303 (1953) (affirming denial of injunction).

The one case concerning a public injunction relied upon by this court is Battle v. Anderson, 708 F.2d 1523 (10th Cir. 1983) (McKay, J. Doyle J.), cert. dismissed, 465 U.S. 1014, 104 S.Ct. 1019, 79 L.Ed.2d 248 (1984). The case involved the district court's jurisdiction to require prison authorities to submit: 1) a policy statement, and 2) a plan to avoid a return to unconstitutional prison conditions, and indicate when compliance with an earlier stipulation concerning prison conditions could be expected. Id. at 1540. This court understood that the district court order was "limited in scope and . . . targeted to assure compliance with past decrees and to prevent a recurrence of unconstitutional conditions." Id. The school desegregation cases were cited as authority for the court's decision. Id. at 1538, 1538 n. 3.

Under the Swift standard it is "virtually impossible" to vacate or modify an injunction when the beneficiary of the injunction does not consent. SEC v. Blinder, Robinson Co., 855 F.2d at 679. Thus, from a practical perspective, the Swift line of cases are ill-suited for deciding when a desegregation decree should be terminated or modified on motion of a school board. Desegregation decrees are primarily mandatory injunctions, rather than prohibitory injunctions, and involve complex affirmative commands often concerning student and faculty/staff assignment. See D. Dobbs, Handbook on the Law of Remedies, § 2.10 at 105 (1973). As the volume of litigation indicates, the framing and enforcement of a desegregation decree is more complex than merely prohibiting an act.

Another reason why the Swift line of cases is inappropriate is that desegregation decrees are not designed to operate over several decades. See Court's Opinion at 1491 n. 12 (noting Swift decrees were in effect for 76 years). As Dr. Finger testified in this trial, he would have expected that his 1972 plan "would have been quite extensively modified." Rec. vol. VIII at 1198. For example, he did not expect that the fifth-year centers would be retained, but rather would have been incorporated into the middle schools. Rec. vol. VIII at 1198-99. Nor did he expect that there would be resistance to "stand-alone" schools, for one of the traditional objectives of desegregation planning is "to make as many naturally desegregated schools as you can make." Id. at 1200.

Dr. Finger's testimony underscores why compliance to the letter with a desegregation decree over an unlimited time span would be inappropriate. In explaining his reaction to the unexpected retention of the fifth-year centers contained in his 1972 plan, he said:

[A] lot of things happened . . . that people didn't anticipate, . . . that our cities would become more minority, that birth rates would change, that the . . . number of white children in cities would change. A lot of things have happened since 1972. The world today is not the same as it was in 1972, . . . and very drastic changes have taken place, and I . . . know its been difficult for the school board and the school department to contend with all these differences that occurred, . . . and I can see that these decisions are really tough.

Id. at 1199. A school district does not have the luxury of ignoring change; it is part of a dynamic system continually confronted by demographic and social forces not of its own making. See Swann, 402 U.S. at 31-32, 91 S.Ct. at 1283-84. The Swift standard has been applied in the context of terminating antitrust injunctions, or other commercial injunctions between private parties. Applying the Swift standard to the modification or termination of school desegregation orders is unwarranted and impractical.

From the beginning, the Supreme Court recognized the need for "practical flexibility" in "effectuat[ing] a transition to a racially nondiscriminatory school system." Brown II, 349 U.S. at 300-01, 75 S.Ct. at 756-57. The Court also recognized the need for continued oversight and adjustment during this period. Id.; Green, 391 U.S. at 439, 88 S.Ct. at 1694 (continued evaluation by district court needed). In the remedial phase, the Court has insisted upon flexibility, see, e.g., Swann 402 U.S. at 28, 91 S.Ct. at 1282, which is inconsistent with the fixed nature of the relief generally founded in cases following Swift. Indeed, at the conclusion of its opinion, this court recognizes the need for continual redrafting of desegregation decrees, but only for the plaintiffs in school desegregation litigation, not for the defendants. Court's Opinion at 1505; see also id. at 1490 n. 11 (relying upon United States v. United Shoe Mach. Corp., 391 U.S. 244, 248-49, 88 S.Ct. 1496, 1499-1500, 20 L.Ed.2d 562 (1968)). Despite this court's protestations to the contrary in its revised opinion, Court's Opinion at 1505 n. 57, the standard it adopts for modification of desegregation decrees at the request of defendants is far more difficult than the standard for plaintiffs.

III.

In deciding whether a desegregation decree should take on a life of its own after unitary status has been achieved, it is well to keep in mind the purpose of and criteria for the design of equitable relief in the remedial phase of school desegregation cases. The purpose of the relief is to eliminate an unconstitutional dual school system and its vestiges arising from state-imposed segregation. Swann, 402 U.S. at 15, 28, 91 S.Ct. at 1275, 1282. In devising a remedy, three factors predominate: 1) the nature and scope of the constitutional violation determines the remedy, Swann, 402 U.S. at 16, 91 S.Ct. at 1276; see also Pasadena, 427 U.S. at 434, 96 S.Ct. at 2703; Milliken v. Bradley (Milliken I), 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974), 2) the decree must be remedial, designed to restore the victims of discriminatory conduct to the position that they would have been in had the discriminatory conduct not occurred, Milliken I, 418 U.S. at 746, 94 S.Ct. at 3128, and, 3) the district court must consider the value of state and local control of public education, Dayton I, 433 U.S. at 410, 97 S.Ct. at 2770. Milliken II, 433 U.S. at 280-81, 97 S.Ct. at 2757. Of course, local school district boundaries and policies must be set aside if they conflict with the dictates of the fourteenth amendment. Milliken I, 418 U.S. at 744, 94 S.Ct. at 3126. But in this case, all of the above factors have not been applied; instead a new long-term remedy has been imposed under the guise of an extension of the old, without due regard for the restitutionary purpose of a desegregation remedy and the importance of local control. This comes as no surprise because the court "approach[es] this case not so much as one dealing with desegregation, but as one dealing with the proper application of the federal law on injunctive remedies." Court's Opinion at 1486, but see id. at 1493 n. 19 ("[O]ur focus is upon the issue of desegregation.").

The Supreme Court's desegregation cases suggest that a district court's jurisdiction is finite and that the decree does not survive the termination of jurisdiction. The Court envisioned a "period of transition" "to a racially nondiscriminatory school system." Brown II, 349 U.S. at 301, 75 S.Ct. at 756. A "transition" is defined as "a passage or movement from one state, condition, or place to another." Webster's Third New Int'l Dictionary at 2428 (1981). In Green, the Supreme Court spoke of "convert[ing] to a unitary system" and "retain[ing] jurisdiction until it is clear that state-imposed segregation has been completely removed." 391 U.S. at 438-39, 88 S.Ct. at 1694-95. The goal was "to convert promptly to a system without a `white' school and a `Negro' school, but just schools." Id. at 442, 88 S.Ct. at 1696. In Raney v. Board of Educ. 391 U.S. 443, 88 S.Ct. 1697, 20 L.Ed.2d 727 (1968), decided the same day as Green, the court held that rather than dismissing a desegregation complaint, a district court should "retain jurisdiction until it is clear that disestablishment had been achieved." Id. at 449, 88 S.Ct. at 1700.

In Swann, Chief Justice Burger, writing for a unanimous Court, indicated that the role of the federal court would end at some time. 402 U.S. at 31-32, 91 S.Ct. at 1283-84. The Court further recognized that the school desegregation cases are not the appropriate vehicle for alleviating the effects of other private or public action which might result in segregation.

We are concerned in these cases 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. . . . The elimination 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 jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination.

Swann, 402 U.S. at 22-23, 91 S.Ct. at 1279. Although that the Court did not address other state action which might contribute to disproportionate racial concentrations in some schools, id. at 23, 91 S.Ct. at 1279-80, the Court discussed limitations on federal equitable power and said:

At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems would then be "unitary" in the sense required by our decisions in Green and Alexander.

It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.

Id. at 31-32, 91 S.Ct. at 1283-84. This suggests that a desegregation decree does not have an unlimited life, once the constitutional violation is remedied. This view is consistent with the Court's earlier comment that "[a]bsent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis." Id. at 28, 91 S.Ct. at 1282. Nevertheless, this court's command for racial balancing is judicially ordered assignment in the absence of a constitutional violation. It is notable that the Court did not hold that the district court could deal with future problems after unitary status by relying upon a violation of the last injunctive decree; rather, the district court can fashion a remedy based upon current conditions, or upon a showing of purposeful resegregation, a constitutional violation.

In Pasadena, the Supreme Court held that once a desegregation plan concerning student assignment had achieved its objectives, and no showing is made of intentionally segregative actions by the school board, the district court's role in student assignment comes to an end. 427 U.S. at 435-37, 96 S.Ct. at 2704-05. This court distinguished Pasadena in Dowell as a case in which "an aggrieved party sought remedial relief in addition to the previous decree." 795 F.2d at 1522. But in Pasadena, the school board, "requested the District Court to dissolve its injunctive order requiring that there be no school in the [district] with a majority of any minority students enrolled." Pasadena, 427 U.S. at 431, 96 S.Ct. at 2702; see also id. at 428-29, 96 S.Ct. at 2701 (setting out relief requested by school board); Spangler v. Pasadena Bd. of Educ., 375 F. Supp. 1304, 1305 (C.D.Cal. 1974) (relief sought by school board), aff'd, 519 F.2d 430 (9th Cir. 1975), vacated and remanded, 427 U.S. 424, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976). Thus, contrary to this court's assumption, Pasadena was not a case "in which an aggrieved party sought remedial relief in addition to the previous decree" or "an attempt to achieve further desegregation based upon minor demographic changes not `chargeable' to the board." See Dowell, 795 F.2d at 1522. The court's characterization is understandable only if compliance with the plan is viewed as an attempt to achieve further desegregation.

The court in Dowell also suggested that Pasadena was explainable in terms of "minor shifts in demographics or minor changes in other circumstances which are not the result of an intentional and racially motivated scheme to avoid the consequences of a mandatory injunction. . . ." 795 F.2d at 1522. The court then contrasted this case with Pasadena because this case involves abandoning the 1972 desegregation plan in favor of a plan "which appears to have the same segregative effect as the attendance plan which generated the original lawsuit." Id. (emphasis in original).

The rationale of Pasadena and Swann consistently address the limits of federal equitable power when unitariness has been attained and the constitutional violation abated. The result of Pasadena turns, not upon the size of the racial imbalance or demographic shift, but rather, upon whether the school district engineered an unconstitutional separation after achieving unitariness with respect to student assignment. 427 U.S. at 434, 96 S.Ct. at 2703.

A dispassioned reading of Pasadena also seriously undercuts this court's view that the 90%+ black schools in this case are ipso facto an effect of past discriminatory intent. See Court's Opinion at 1504. In Pasadena, 5 out of 32 schools had majority black student enrollments just four years after the 1970 decree implementing the desegregation plan. 427 U.S. at 431, 96 S.Ct. at 2702. Yet, because the school board was not responsible for creating this situation, readjustment was not necessary. Attendance areas could be left as they were. Finally, Pasadena made it clear that a school system can be unitary with respect to student assignment, even if it is not with respect to faculty/staff assignment. Id. at 436, 96 S.Ct. at 2704.

IV.

Resuscitating the 1972 decree in this case has the effect of vitiating any benefits of unitary status for the school district. As noted by the Fifth Circuit:

The difficulty with Dowell's approach is that it denies meaning to unitariness by failing ever to end the judicial superintendence of schools. Of course, school districts cannot escape the duty to maintain their school systems in conformity with the Constitution. Attaining unitary status, however, means that a school board is free to act without federal supervision so long as the board does not purposefully discriminate; only intentional discrimination violates the Constitution. As we have said, a school district is released from the consequences of its past misdeeds when it eliminates the vestiges of a segregated system and achieves a true unitary system.

Overton, 834 F.2d at 1175 (footnote omitted). Redemption is not the hallmark of this court's approach, but there are several other reasons why the approach of Dowell as realized in this case, is not in keeping with the mechanics of school desegregation litigation.

Most critical is the burden of proof. Without question, this court today has placed upon the unitary school district the same burden it would have, had it operated a statutorily or officially dual school system yesterday. This court's first error is in assuming that certain concepts associated with becoming unitary such as "affirmative duty" and "maximum practicable desegregation," Court's Opinion at 1493, have equal relevance once the district has attained and maintained unitary status. This court reasons that once the plaintiffs have shown that the injunction has not been complied with, here because of the emergence of the inflated 32 out of 64 "one-race majority" schools, see supra p. 1510-13, the defendants have the burden of showing "changed circumstances or oppressive hardship." Court's Opinion at 1493.

What this means is that the school board is put back at the "proverbial first square." See id. at 1491. Indeed, in its discussion of the burden of proof, this court resurrects two presumptions: one applies when a prima facie case of intentional segregation by school authorities has been proven; the other applies once a system-wide violation has been established and a remedy is being implemented. Court's Opinion at 1492-93; see also Dowell v. Board of Educ., 465 F.2d 1012, 1014 (10th Cir.) (presumptions applied to Oklahoma system), cert. denied, 409 U.S. 1041, 93 S.Ct. 526, 34 L.Ed.2d 490 (1972). This court relies upon Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979, as quoted in Clark v. Board of Educ., 705 F.2d 265, 271 (8th Cir. 1983) for the presumption that actions which increase or continue the effects of a dual system are inconsistent with a school board's affirmative duty to liquidate that system, and that the board faces a heavy burden in providing an explanation for such actions. See Court's Opinion at 1493. The court also discusses the Swann presumption against one-race schools, 402 U.S. at 26, 91 S.Ct. at 1281, in the remedial phase of desegregation litigation.

To understand the problems with this court's approach, it is necessary to understand how the burden of proof is allocated before a school district becomes unitary. In a system that was statutorily or officially dual, plaintiffs may establish the prima facie case by proving that there is a current condition of intentional segregation; that the de jure system or its vestiges remain or were reestablished in part of the school system. Columbus, 443 U.S. at 463-68, 99 S.Ct. at 2949-52. Even an isolated condition of current intentional segregation would violate the affirmative duty to eliminate the dual system and its vestiges and to convert to a unitary system in which racial discrimination is eradicated. Dayton II, 443 U.S. at 537, 99 S.Ct. at 2979; Columbus, 443 U.S. at 459, 99 S.Ct. at 2947; see also L. Tribe, American Constitutional Law 1498-1500 (2d ed. 1988) (discussing Supreme Court school desegregation cases).

That critical finding shifts the burden of proof to the defendants because it provides "a sufficient basis for an inferential finding of systemwide discriminatory intent," which in turn will be applied to explain "racial separation in other parts of the school system." Columbus, 443 U.S. at 467-68, 99 S.Ct. at 2951-52. At that point, the school defendants must come forward with "proof sufficient to support a finding that segregative intent was not among the factors that motivated their actions." Keyes, 413 U.S. at 210, 93 S.Ct. at 2698. If intent cannot be disproved, the defendants must show that their "past segregative acts did not create or contribute to the current segregated condition," in other parts of the system. Id. at 211, 93 S.Ct. at 2699. Before a determination of unitariness, the "board has a `heavy burden' of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends." Dayton II, 443 U.S. at 538, 99 S.Ct. at 2979.

To summarize, "once a court has found an unlawful dual school system, the plaintiffs are entitled to the presumption that current disparities are causally related to prior segregation, and the burden of proving otherwise rests upon the defendants." School Bd. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987). Where, as here, the system has achieved unitariness, the presumption ends. Id.; see also Riddick, 784 F.2d at 543.

But in this case, the court not only has failed to terminate the presumptions which resulted in the 1972 decree, but also has added new burdens for the school board. Now, the school board must bear the same burden it was under when discharging its affirmative duty to liquidate a dual school system, and it must also demonstrate that deviating from the 1972 decree would result in such extreme and unexpected hardship as to render the decree oppressive. See Court's Opinion at 1493. According to the court, the school board was required to meet its evidentiary burden "by clear and convincing evidence." Court's Opinion at 1491. It is easy to understand why concerns with educational effectiveness, parental involvement, student retention and the inconvenience of forced transportation pale in comparison to such a draconian standard.

Thus, I cannot agree with the court that the school district's "burden is not alleviated after a finding of unitariness when the decree remains in place." Id. at 1493. As noted by the Fifth Circuit, it matters little whether we call it "maintenance of a decree or dispensing with proof of purpose or shifting the burden of proof" because the effect is the same: federal judicial power displacing local control long after schools which were once part of a dual system are "just schools" in a unitary system. Overton, 834 F.2d at 1176. Rejecting the argument that a unitary school district must continue with a burden to prove continually that its decisions are free of segregative purpose, the Fifth Circuit commented upon the relationship between unitary status and the school district's burden of proof.

The elements of a violation and who must bear the burden of proof are not conceptually distinct from unitary status but are its components; indeed, the contrary assertion is dissembling. In the real world of trial and uncertain proofs, a perpetual placement upon a school board of the burden of persuading its innocence of conduct with segregative impact differs little in effect from the superintendence that attends an extant decree and pending suit.

Id. at 1176. The acknowledgment of the school district's unitary status, Dowell, 795 F.2d 1522; Court's Opinion at 1486, 1499, while requiring the school board to retain the burden of proof (and presumptions against it) in addition to the additional burden of meeting the Swift criteria for modifying a decree, proves too much. It not only "denies the essence of unitariness," but may very well impose greater substantive burdens on the school board than before the unitariness finding. See Overton, 834 F.2d at 1176.

In its amicus brief, the United States argues that the continuation of the court's jurisdiction in this case via the 1972 decree was inappropriate because of the successful dismantling of the dual school system as signified by unitary status. United States' Brief at 5. This court responded that it "was unwilling to revise Rule 60(b) to accommodate this position." Court's Opinion at 1499 n. 41. Rule 60(b) would hardly need revision to accommodate the legal consequences of a determination of unitary status. The court then rejects the government's argument that "[e]ven if sustained compliance with the plan is not dispositive in the unitariness inquiry, it is entitled to great weight and should create at least a presumption of unitary status," United States' Brief at 9 (emphasis in original). Court's Opinion at 1499 n. 41. While there is a difference between a presumption and relevant evidence, one would expect that sustained compliance with a plan would be highly relevant evidence in a unitariness inquiry.

Indeed, this court just above said that "the good faith of the school officials in the desegregation effort" was a unitariness factor. Court's Opinion at 1499. See Brown v. Board of Educ., No. 87-1668, slip op. at 25 (10th Cir. filed Jun. 2, 1989 withdrawn Jul. 19, 1989); Morgan, 831 F.2d at 321 (good-faith compliance with court's plan is a factor in deciding unitariness); Ross v. Indep. School Dist., 699 F.2d 218, 226 (5th Cir. 1983) (court considered "good-faith efforts to dismantle the dual school system" and declared system unitary).

In justifying its approach, this court explains that it is concerned with the future value of an injunction, not with "fix[ing] for all time equitable relief mandated by constitutional considerations on the basis of present conditions." Court's Opinion at 1499 n. 41. The court reasons that "[t]he extension of the government's theory portends minority citizens have no assurance of any but short-term and pyrrhic victories." Id.

However, during the period in which the constitutional violation is being remedied, a federal court is empowered to make changes in the equitable decree. The relief is not "fixe[d] for all time." Moreover, this court's concern with the absence of a remedy for minority citizens undervalues the force of 35 years of desegregation cases and the alacrity with which a fresh judicial remedy can be imposed upon a showing of purposeful discriminatory action taken by the school board.

In an effort to limit its holding, this court tells us in its revised opinion that it is merely relying upon the district court's power to enforce its equitable remedy, which "does not die until the remedy expires." Court's Opinion at 1492 n. 17. The problem with this analysis is that a remedy imposed and enforced by a court to correct racial discrimination should expire once the condition which offends the Constitution is alleviated. Overton, 834 F.2d at 1176. This court states that its holding is limited because the district court will cease active supervision upon a finding of unitariness, and the district court "retain[s] post-remedy authority over a school district" only "to enforce, modify, or vacate its decree." Court's Opinion at 1492 n. 17. This construct is pure sophistry. The school district will operate under a court-imposed decree, and the parties will have to repair to federal court to get the decree changed. The earlier finding of unitariness in no way lessens the obligation: the district court will never cease active supervision.

This court's laudable purpose for retaining jurisdiction is embedded in an unfortunate rationale which assumes that the arduous gains in racial equality will be lost should the school board be freed of federal control. The Fifth Circuit has addressed the same argument, rejecting the rationale of Dowell, 796 F.2d at 1516:

The argument's essence is that school districts that have intentionally discriminated are not to be trusted with the freedom of the Constitution. It rests upon a fear that the fourteenth amendment, proscribing as it does only purposeful discrimination, inadequately protects desegregation gains, at least at the hands of a former wrongdoer.

We are not persuaded. Whatever the power of Congress to so circumscribe the freedom of state actors, such as not requiring proof of purposeful discrimination in employment, the contended for judicial rule is here a heady call for raw judicial power. It is not that we deny the risk; the risk of wrong decision is inherent in the freedom to choose, and we are not so naive as to believe that we are no longer vulnerable to racism, if such insights are to overtly inform our judgment.

Overton, 834 F.2d at 1176. Though there be a risk, it is a risk which must be taken if ever a local school system is to function independently.

It might appear that this court's perpetual supervision of the school board has been vindicated here, because the school board, incorrectly believing it was free of federal control, enacted a neighborhood school plan which resulted in 11 out of 64 schools having a virtually one-race and black enrollment. However, as discussed below, the district court considered and rejected this circumstantial evidence of segregative intent, given the golconda of contrary evidence offered by the school board. Significantly, the school board has retained elements of the Finger Plan at all but the elementary level (1-4), and has taken other steps which certainly suggest an absence of segregative intent. Approximate racial balance is retained through busing in grades 5-12. The district court's decision rests upon ample evidence; the points raised by this court go to the weight of the evidence, not its sufficiency.

V.

Apart from the clearly erroneous standard which governs our review of the district court's factual findings concerning unitariness, Riddick, 784 F.2d at 533, it is important to understand the importance of intent. After informing us that once a decree is in place, "the intent of the defendants has little, if any, relevance," Court's Opinion at 1491, the court devotes a significant portion of its opinion to discussing intent. See Court's Opinion at 1502-04.

The lifting of the decree should be the natural result of attaining unitary status. Thereafter, the basis for a system-wide remedy should be another intentional violation of the Constitution by school officials. The district court found that the only evidence which was indicative of segregative intent was disproportionate impact upon some black students. Dowell, 677 F. Supp. at 1517. The district court, relying on Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977), and Dayton II, 443 U.S. at 536 n. 9, 99 S.Ct. at 2978 n. 9, declined to find segregative intent based upon the attendance patterns of the plan.

Reviewing the trial transcript, this court perceives that the district court's focus was too narrow and that it "overlooked the broader inquiry mandated by Swann." Court's Opinion at 1503. Of course, the cases this court relies upon involve the affirmative duty to desegregate dual school systems. This court also relies upon Diaz v. San Jose Unified School Dist., 733 F.2d 660, 666 (9th Cir. 1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2140, 85 L.Ed.2d 497 (1985), involving a California state-law affirmative duty to desegregate regardless of the cause of segregation. No such state law is involved in this case, and the affirmative duty to desegregate has been accomplished, as evidenced by the repeated findings of unitary status. See Dowell, 795 F.2d at 1522 (1977 unitariness finding binding); Dowell, 677 F. Supp. at 1515-19 (system has retained unitariness from 1977 to present). Finally, this court quotes the district court decision in Keyes, 609 F. Supp. 1491, now on appeal, see supra note 8, which seems to say that the motivations and good faith of board members or school administrators is not relevant in deciding institutional intent. See Court's Opinion at 1503. According to this court, only circumstantial evidence is available. Id. at 1502 n. 49, 1503.

This is too categorical a view of the intent inquiry. Such an approach essentially makes a credibility determination in advance and, of course, credibility is properly left to the trier of fact, every time. Because the school district is directed by its board and acts through its agents (personnel), the district court certainly could consider testimony concerning whether the neighborhood school plan was enacted with segregative intent, just as it can consider good faith compliance with a desegregation plan in deciding unitariness. Had some school administrator testified that segregative intent motivated the plan, such testimony certainly would be relevant. In addition to the motivation for adoption of the plan, the district court also was required to and did consider the effect of the plan. Finally, in complying with this court's directive in Dowell, 795 F.2d at 1522-23, the court attempted to ascertain whether it was likely that a return to a dual system was imminent should the 1972 decree be dissolved.

The law requires the plaintiffs to prove discriminatory purpose. As the Supreme Court has explained "[t]he school desegregation cases have . . . adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2047-48, 48 L.Ed.2d 597 (1976). "[D]isparate impact and foreseeable consequences, without more, do not establish a constitutional violation. . . . [But] actions having foreseeable and anticipated disparate impact are relevant to prove the ultimate fact, forbidden purpose." Columbus, 443 U.S. at 464, 99 S.Ct. at 2949. A district court may consider a school board's enactment of a neighborhood school plan which may lead to racial imbalance, as one factor among many, in deciding "`whether an inference of segregative intent should be drawn.'" Id. at 465, 99 S.Ct. at 2950 (quoting Penick v. Columbus Bd. of Educ., 429 F. Supp. 229, 255 (S.D.Ohio 1977), aff'd in part and remanded in part, 583 F.2d 787 (6th Cir. 1978), aff'd, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979)). But "[t]he inference is permissible, not mandatory." Higgins v. Board of Educ., 508 F.2d 779, 793 (6th Cir. 1974); see also Alexander v. Youngstown Bd. of Educ., 675 F.2d 787, 792-93 (6th Cir. 1982); Spangler, 611 F.2d at 1245 ("A policy favoring neighborhood schools is not synonymous with an intent to violate the constitution") (Kennedy, J., concurring). Thus, a district court is not required to infer segregative intent when there is racial imbalance in some schools. Id.

The district court's task concerning intent has been summarized by the Sixth Circuit:

It is thus the duty of the District Court to determine whether, on the facts of a particular case, an inference of segregative intent should be drawn. The impact of the challenged official conduct is an important starting point. Other evidentiary sources available to the fact-finder include the historical background of that conduct, the specific events leading up to it, and the administrative record, particularly where there are contemporaneous statements by members of the decisionmaking body, minutes of its meetings, or reports.

Alexander, 675 F.2d at 792. The district court in this case specifically considered the history of the enactment of the neighborhood school plan and found an absence of segregative intent. Dowell, 677 F. Supp. at 1513. Reinforcing this finding is the district court's considered analysis of the documents and testimony concerning the enactment of the neighborhood plan.

Without question, this court's principal concern is "the emergence of thirty-two effectively one-race schools." Court's Opinion at 1502. However, the statistic is inflated and other factors must be considered. Spangler, 611 F.2d at 1245 (Kennedy, J., concurring). To be sure, adoption of an elementary assignment plan in a former de jure system which (1) uses existing neighborhood boundaries which plainly were not drawn for maximum integration, and (2) results in 11 virtually one-race black schools with consequent rise of the system-wide black versus non-black dissimilarity index, from .24 to .39, and an even more pronounced rise in the elementary black versus non-black dissimilarity index, from .24 to .57, Dowell, 677 F. Supp. at 1508-09, creates a permissible inference of segregative intent. So too does the assignment of greater numbers of black faculty/staff to schools with predominantly black enrollments. The district court clearly was aware of these factors and "sharply focused on the racial composition of the predominantly black schools which came into being as a result of the neighborhood plan," Dowell, 677 F. Supp. at 1517, as well as the faculty/staff imbalance. Id. at 1518-19. Although the facts in this case might logically support a judgment for either side, our task is not to decide the case anew. Alexander, 675 F.2d at 801.

VI.

Relevant factors led the district court to conclude that there was an absence of segregative intent on the part of the school board and that the system remained unitary. A neighborhood school policy is not, in and of itself, violative of the fourteenth amendment. Crawford v. Board of Educ., 458 U.S. 527, 537 n. 15, 102 S.Ct. 3211, 3217-18 n. 15, 73 L.Ed.2d 948 (1982). Just as equal educational opportunity is a national policy, so too is neighborhood schooling. 20 U.S.C. § 1701.

A.

The impetus for the neighborhood plan at the elementary level was the board's determination that the 1972 Finger Plan, as modified over the years, was structurally inadequate to meet the educational and equitable objectives of the district in grades 1-5. As enacted and revised, the neighborhood plan had several objectives, including 1) maintaining a unitary system, 2) establishing K-4 schools in the northeast section where none existed, 3) maintaining K-4 neighborhood schools with stability, 4) increasing pride and parental involvement in the elementary schools, and 5) continuing an integrated school district in an urban setting. Pl. hearing ex. 1 (Def. ex. 96, see rec. vol. I, doc. 17, app. D. at 12, 29), § 1 at 2 (1985-86 student assignment plan). The school board expected the following advantages: 1) neighborhood schools, 2) fifth-year centers in all areas, not just the northeast quadrant, 3) reduction of busing, 4) program improvement, including increased participation in extracurricular activities, 5) increased parental participation, and 6) increased community involvement and support. Id.; rec. vol. III at 347. Obviously, the neighborhood assignment plan meets certain of these objectives better than others. It is decidedly ineffective in promoting integration in some schools given the 11 90% + black schools.

In the simplest analysis, the school board appears to have elevated the educational value of student assignment based on proximity over the social value of mandatory integration in grades 1-4. The school board viewed the advantages of neighborhood schooling as outweighing the negative effect that this program has on the racial balance in some elementary schools. From a personal perspective, we may regard this to be a regrettable choice; however, once a de jure school system and its vestiges are eliminated, the Constitution empowers local authorities to make such choices in the absence of segregative purpose. In the factually similar Riddick case, 784 F.2d at 521, the Fourth Circuit upheld a unitary school district's neighborhood plan where 40% of the minority students attended ten 90% + minority schools. Id. at 527 n. 7 (40% derived from data presented in footnote 7). Moreover, even in the remedial phase, which we are long past, a court may not order strict racial balancing or quotas. Swann, 402 U.S. at 23-24, 91 S.Ct. at 1279-1280.

B.

As acknowledged by both sides and found by the trial court, there were inequities associated with the "stand-alone" feature. Dowell, 677 F. Supp. at 1514. These inequities were revisited when the school board voted 4-3 to make Bodine a stand-alone school. Analyzing the events which led up to the neighborhood plan for extreme and unexpected hardship to the school board, Court's Opinion at 1497, this court concludes that the "stand-alone feature . . . emerged from the evidence as a matter of speculation tied to capacity problems, budget constraints, and local politics." Id. at 1498. This implies that the neighborhood plan was motivated by concerns that were not bona fide.

As of 1983-84, there were three K-4 stand-alone schools, Harrison, Edgemere and Western Village, with Rockwood joining the list as of 1984-85. Def. ex. 76, reproduced in Appellants' Addendum to Brief at 332, 345. At the same time there were two K-5 stand-alone: Arcadia, because of location and Horace Mann, because of racial balance. Id. at 347. The board then voted to make Bodine a K-5 stand-alone school. Id. at 351.

Initially, the stand-alone provision in the Finger Plan was to operate when the black student percentage in a neighborhood attendance zone exceeded 10%, but was less than 35%. Pl. ex. 6, reproduced in Appellants' Addendum to Brief at 20. In the 1972-73 school year, there were 11 stand-alone schools, not all of which met the above criteria. Pl. ex. 13, reproduced in Appellants' Addendum to Brief at 98. The criteria changed over the years, but the concept was retained. The school's planning department determined initial eligibility for K-4 and K-5 stand-alone status based on whether the black student percentage of the neighborhood attendance area would result in a school which was plus or minus (0 ±) 10% or ± 15% (depending upon school size) of the district average of black students for the particular grade configuration, i.e. K-4 or K-5. See def. ex. 72, reproduced in Appellants' Addendum to Brief at 275-76. Thus, as of April 1984, the planning department identified 11 schools which were eligible for K-4 stand-alone status. All but one of these schools were eligible, in the alternative, for K-5 stand-alone status in addition to 3 other schools, bringing the total number of schools eligible for K-5 stand-alone status to 13. Id. at 276; accord rec. vol. IV at 427. The planning department then identified 9 schools to be considered as potential K-5 stand-alone sites. See def. ex. 72, reproduced in Appellants' Addendum to Brief at 275.

Dr. Welch also considered the geographic pattern of schools eligible for stand-alone status solely on the basis of whether the racial composition of an elementary attendance area was ± 15% of the system-wide black average of 35%. Rec. vol. III at 216-218. He noted that the location of these schools supported the contention that there had been diffusion of the black population from the northeast quadrant.

The district court correctly noted that three expert witnesses in the case acknowledged that the 1972 Finger Plan, including the stand-alone feature, was now inequitable because of demographic change. Dowell, 677 F. Supp. at 1514. Defendants' expert Dr. Welch testified that "it's just not a plan that was designed to withstand the kind of demographic change that occurred in this district." Rec. vol. III at 220. Quite apart from Dr. Welch's projections indicating that more schools would be eligible for stand-alone status by 1995, he testified that there are inherent limitations to the plan: 1) it was designed for an elementary student population that was 20%, not 40% black, 2) as more schools qualify for stand-alone status, busing distances for those still bused will be longer, and 3) schools housing fifth-year centers will be forced to close if enrollment declines due to fifth grade students attending stand-alone schools. Id. at 219-20, 225-26. Add to that, the plan does not consider the presence of other minority groups. Rec. vol. III at 312-22 (Dr. Biscoe). Dr. Welch's forecasts for 1995 indicated that more schools would qualify for stand-alone status. Id. at 224; see supra note 23.

School board member Dr. Clyde Muse was troubled by the implications of an increasing number of schools eligible for stand-alone status. Rec. vol. IV at 424-28. He believed that because of the central location of many of the potential stand-alone schools, busing distances for some students would increase and the closing of some fifth-year centers in the northeastern part of the district became a real possibility. Id. at 425-26. Plaintiffs' expert Dr. Foster agreed with Dr. Muse concerning the disproportionate impact of stand-alone schools. Rec. vol. VIII at 1266-67. Dr. Muse described the fifth year centers as "the only elementary schools in the black community." Id. He recognized that the "stand-alone" feature of the plan had to be eliminated because the board would always be pressured to create stand-alone neighborhood schools in qualifying neighborhoods, perhaps at the expense of the non-stand-alone components of the elementary system. Id. Board member Hill put it this way: "Our patrons, our communities, had been told since '72 that, if they became integrated, they could have a neighborhood school, and they could not understand why they had followed exactly what the court said and the board was not giving them their K-5 schools." Rec. vol. IV at 528. The comments of Dr. Muse and Mrs. Hill also are corroborated by the minutes of the school board meeting concerning K-5 stand-alone status for Bodine. See Def. ex. 76, reproduced in Appellants' Addendum to Brief at 348-51 (summary of hearings between interested persons and board members concerning stand-alone status for Bodine).

Another inequitable feature of the 1972 Finger Plan as implemented over the years was that black students were bused during the first four years to schools outside black residential areas, while white students were not bused until the fifth year. See rec. vol. VIII at 1265 (Dr. Foster). Of course, a desegregation plan may "not unfairly burden minority students." Keyes v. School Dist. No. 1, 521 F.2d 465, 479 (10th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 806, 46 L.Ed.2d 657 (1976); Higgins, 508 F.2d at 793. Both sides are in agreement that this feature of the 1972 plan required modification.

C.

As designed and implemented, the neighborhood plan continued the majority-to-minority transfer option under existing Policy JCA-M. Pl. hearing ex. 1, § 1 at 4. Free transportation was provided for elementary students exercising the option. Dowell, 677 F. Supp. at 1523. The district court viewed this option as one attribute of a unitary system. The district court said: "In a word, parents in Oklahoma City today have a choice. No pupil of a racial minority is excluded from any school in Oklahoma City on account of race." Id. In a statement too sweeping, this court then says that "[t]he record does not support this assertion." Court's Opinion at 1500. Does the court mean that parents do not have a choice or that minority students are being excluded from schools in the district, or both? The discussion that follows concerns the majority-to-minority transfer option and perhaps the court is questioning only the transfer option. If this court is saying that the efficacy of the transfer option is not supported by the record, that is one thing. But is quite another to claim that the evidence does not support an absence of the purposeful racial discrimination inherent in excluding a student from a public school on the basis of race. The record most certainly and repeatedly supports the contention that students are not excluded from the public schools on the basis of race; there has been compliance with Brown I and the district is not operating a dual system of assignment at any level.

The majority-to-minority transfer option has been described "as a useful part of every desegregation plan." Swann, 402 U.S. at 26, 91 S.Ct. at 1281. In a school district charged with an affirmative duty to desegregate, the purpose of the option is remedial. Id. Here, the district court recognized that retention of the option was indicative of the board's legitimate, not discriminatory, motivation in enacting the neighborhood plan. The operation of the option is not indicative of segregative intent.

This court views the district as under an affirmative duty to desegregate and is concerned that parents do not understand the option and will not "freely" exercise it. Court's Opinion at 1501. The option is not new, parents were provided with a letter explaining the option, rec. vol. III at 310, 327, and I submit that the court's real concern is that a voluntary option cannot result in racially balanced schools. Obviously, if only 332 students transferred under the option in 1985-86, and 181 transferred in 1986-87, Dowell, 677 F. Supp. at 1523, the option will not achieve racial balance. The court's real complaint is the paternalistic notion that black parents will not choose the option. Contra P. Gerwitz, Choice in the Transition: School Desegregation and the Corrective Ideal 86 Colum.L.Rev. 728, 756-77 (1986) (cited in Court's Opinion at 1492 n. 18; arguing that choice to attend predominantly minority school is tainted).

D.

The district court also considered the laudable goal of increased parental and community involvement brought about by the neighborhood plan. Dowell, 677 F. Supp. at 1516-17. Apparently, the court views this evidence as an attempt to compensate for the lack of a unitary school system. See Court's Opinion at 1502. Such is not the case. Instead, the evidence reinforces the lack of discriminatory intent in the enactment and implementation of the neighborhood plan. It also corroborates the testimony from school officials that increased parental involvement was a partial motivation for the plan. The court acknowledges that there was a "substantial increase in parent participation," Court's Opinion at 1502 n. 47, yet questions the "conflicting evidence" the district court relied upon in finding a causal link between instituting the neighborhood plan and increased parental participation. Id.

Despite this court's objection on hearsay grounds to Dr. Mason's testimony concerning parental involvement, id., witness after witness testified based upon personal knowledge that the increased participation of parents was due to the neighborhood plan., Conversely, several witnesses indicated that busing had an adverse effect on parental involvement.

Defendants' expert Dr. Lane testified that an effective schools program, is enhanced by a neighborhood schools program because "a neighborhood school program can insure greater parental involvement, and one of the hallmarks of an effective school is parental involvement. . . . Proximity means easy access, and that's very good, and the neighborhood school does help that." Rec. vol. VI at 897. Dr. Walberg indicated that the neighborhood reassignment plan, with its emphasis upon interaction between students, teachers and parents, contributed to the educational mission of the district. See rec. vol. VI at 918-22, 934. He termed it "the next logical step to improve the education of the children in the Oklahoma City Public Schools." Id. at 953. Dr. Steller testified that parental involvement enhances academic achievement. Rec. vol. V at 736; accord id. at 796 (testimony of Ms. Scobey); see also Riddick, 784 F.2d at 541.

E.

This court's approach to the school board's evidence is to judge it against an improper legal standard given the unitary status of the school district. This court then compounds the problem by searching the record for conflicting evidence and holding the school board to an impossible standard of proof which does not allow the school board to prevail if there is any conflicting evidence. This practice is directly contrary to the standard by which we carry out our appellate function. Anderson, 470 U.S. at 573-576, 105 S.Ct. at 1511-1512 ("This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court."). Moreover, this court's appellate factfinding is not free from error.

Consider the conflicting trial evidence on academic achievement. This court addresses such information, Court's Opinion at 1501, and in the context of the district's continued unitary status, comments that "there is no evidence of specific educational programs designed for those racially identifiable elementary schools to counteract the effect of low achievement in these schools." Id. In its revised opinion, this court then criticizes the dissent for "wad[ing] into this area." Court's Opinion at 1503-04 n. 51.

The district court rejected the notion that schools must be racially balanced for maximum academic achievement. Dowell, 677 F. Supp. at 1523-24. In so deciding, the district court relied upon several evidentiary sources, including the school board's information indicating that the gap between black and white third graders was reduced 13% between 1985-86 and 1986-87, after introduction of the neighborhood schools program. Id. at 1524. While the comparison may be difficult to generalize, it is not because the test comparisons are "flawed" because "[t]he group of students studied one year is not the same studied the next year." Court's Opinion at 1501. Dr. Steller indicated that an acceptable comparison could be made even if the students were not the same; that comparison of the same grade level is an accepted technique. Rec.vol. V at 744. Indeed, different groups of third-graders over time are implicit in the comparison. Moreover, even plaintiffs' expert Dr. Crain testified that an alternative to comparing the same group of cohorts over time is to compare different cohorts at particular grade levels. Rec.vol. VII at 1003. The district court could consider this comparison without committing clear error.

The district court also could rely upon the information that 8 of 10 neighborhood elementary schools with 90% + black enrollments had achievement test gains which surpassed the national average for black students. Dowell, 677 F. Supp. at 1524. This court's observation that "gain is an elusive concept," Court's Opinion at 1501 n. 44, goes to the weight of this evidence; it does not render the district court's finding that the neighborhood plan is one factor which may enhance academic achievement at some schools clearly erroneous. See rec. vol. VI at 933-34, 946-47 (Dr. Walberg testified that neighborhood school plan, effective schools program and increased parental involvement are major causes of improvement and only slight drops at other 2 schools).

Though gain may be an elusive concept, the court does tell us that scores at 2 schools dropped. Id. at 1501. Does this mean that gain does not inure to the benefit of the defendants because it is elusive, but loss does? The court is merely reweighing conflicting evidence to produce different outcome. However, the court's efforts notwithstanding, the district court's ultimate finding that academic achievement will not be harmed if schools are not racially balanced is not clearly erroneous.

In the same vein, the court dismisses the effective schools program by telling us that it "is geared to the upper grades." Court's Opinion at 1501. Not so. As support, this court cites Dr. Crain's testimony. Id. (citing Rec.vol. VII at 1004-05). Dr. Crain admitted that there was "not very strong evidence that Oklahoma City is following the national trend in which segregation is harmful to achievement." Rec.vol. VII at 1004. He attributed this to the recency of the neighborhood plan and then said that "[t]he best I can say is that certainly the new effective schools program that I've road some literature about is working in the upper grades better than it is the lower grades." Id. at 1004-05. Dr. Crain's reading about an effective schools program somewhere hardly supports the proposition that this program in this district is geared to the upper grades. To the contrary, the effective schools program appears to have been successfully implemented in the elementary grades at issue. Rec.vol. V at 685-88 (Dr. Hughes); 702-03 (Dr. Steller); vol. VI at 880-81 (Dr. Lane).

Likewise, this court tells us that the effective schools program is "tied to budgetary constraints experienced by the District." Court's Opinion at 1501. For this proposition, the court cites Dr. Lane's testimony where he was asked how Oklahoma City compares to other districts "in implementing an effective schools program and in carrying out their instructional philosophy." Rec.vol. VI at 881. Dr. Lane replied that the district compared favorably. Id. He said: "I have found that this district, laboring under tremendous fiscal constraints, has made giant strides." Id. Such a statement hardly links the effective schools program to the district's fiscal constraints. Likewise, the court is concerned with the absence of specific programs designed for the racially identifiable elementary schools. Court's Opinion at 1501. However, Dr. Hughes testified that one of the major purposes of the effective schools program is to narrow the differences in achievement based upon socioeconomic and racial differences. See rec. vol. V at 688. Indeed, under the proposed Foster Plan B, 24% fewer low income students (710) will be eligible for federally funded remedial math and reading help given the program requirements. Rec. vol. IX at 1496 (Dr. Steller).

The district court's finding concerning increased parental involvement caused by the neighborhood plan, Dowell, 677 F. Supp. at 1516-17, and the efforts of the district to provide improved educational opportunity for all, id. at 1522-24, are not clearly erroneous. These findings, along with others, support the ultimate factual finding of continued unitary status.

VII.

Regarding faculty/staff assignment, this court says that the district court "did not address plaintiffs' exhibits 48, 50, 52 and 54[,]" which show, to use the court's oxymoron, "the growing parity of imbalance" between faculty and students. Court's Opinion at 1500. This court relied on plaintiffs' exhibit 54, prepared by plaintiffs' counsel, rec. vol. VIII at 1270, and introduced through Dr. Foster, which tends to show that schools with higher black enrollments have more black teachers. Without question, the district court was aware of this phenomenon, see Dowell, 677 F. Supp. at 1518, but it declined to infer segregative intent. After the district enacted the neighborhood plan, it became necessary to reassign 500 teachers. Rec. vol. IV at 548. In a negotiated agreement with the teachers' union, whereby teachers were allowed to indicate preferences as to assignment, with senior faculty receiving first preference. Id. at 1518. The executive director of personnel testified that retention of qualified faculty was a motivating concern for the choice provision. Rec. vol. IV at 546, 548. He acknowledged that this caused some racial imbalance and there was a desire to make sure that this assignment process was not repeated. Id. at 555.

The response of the school district to this situation is relevant to understanding the district court's finding of no segregative intent. This court states: "Although the executive director of personnel testified that especially after 1985, the teacher assignments would comply with the district affirmative action goal of 36.9% with a 10% variance factor [± 10%], the numbers belie the aspiration." Court's Opinion at 1500 (footnote omitted). The personnel director, Vern Moore, actually testified that there would be compliance in almost all of the elementary schools by August 1987. Rec. vol. IV at 557; see also def. ex. 199 (tracking status of compliance at schools as of June 1987). His testimony did not indicate that earlier balance was expected. The court's statement makes it appear that since 1985 the district has ignored the situation. Not so. Moreover, this court is of the view that specific evidence of a change is lacking. Court's Opinion at 1500.

Mr. Moore testified that as of April 1987, building administrators were given direct responsibility for compliance with affirmative action goals and faculty racial balance. Rec. vol. IV at 553. Because several schools were closing, it was necessary to assign a veritable gondola of teachers; the board entered into an agreement with the teachers' union that provided that teacher preference would be honored so long as the district's personnel goals were met. Id. at 555. This was expected to be a big help in complying with the board's standard. Id. at 559.

Mr. Moore also prepared projections for the 1987-88 school year, indicating that many K-4 elementary schools would have the system-wide black faculty average of 36.9%, plus or minus (±) 10%. Id. at 556-59. He also indicated that the racial composition of the administrators at the elementary schools with 90% + black enrollment was 4 blacks out of 10 administrators in 1986-87, and 3 blacks out of 10 administrators in 1987-88. Id. at 552. As for those elementary schools with less than 10% black enrollment, the racial composition of the administrators was 1 black out of 13 administrators in 1986-87, and 4 blacks out of 12 administrators in 1987-88. Id. Linda Joyce Johnson, affirmative action program planner for the district, corroborated Mr. Moore's statements. Rec. vol. V at 809-10. Ms. Johnson testified that the board had adopted a recommendation which would bring the faculties into greater racial balance. Id. The district court credited her statements. See Dowell, 677 F. Supp. at 1519.

Plaintiffs' expert Dr. Foster testified that the neighborhood school plan resulted in a higher concentration of black faculty at schools with the highest percentages of black enrollments and a lower concentration at schools with the lowest percentage of black enrollment. Rec. vol. VIII at 1269-70. Dr. Foster's concern was that a school should not be considered racially identifiable based upon faculty assignment. Id. at 1270. On direct examination, Dr. Foster was asked to comment upon the faculty assignment exhibits relied upon by the plaintiffs and this court:

Mr. Chachkin: Now, Dr. Foster, . . . in describing the last four of those exhibits that dealt with faculty, you talked about patterns of assignment.

You've been here through the defendants' testimony concerning the new board policy in administrative procedure concerning faculty assignments and affirmative action goals at individual schools; is that correct?

Dr. Foster: Yes.

Mr. Chachkin: What's you opinion concerning the new policy and procedure in light of — how is that going to affect the patterns that you've noted in your own analysis?

Dr. Foster: In my opinion, if these are followed in a fairly short time, they should be productive to the extent that all schools would . . . be in line.

Id. at 1275-76.

Dr. Foster thought that it might be difficult for the district to comply with its voluntary affirmative action goal of placing ± 10% of the system-wide average (36.9%) of black faculty at every elementary school, but he had no problem with such a standard. Rec. vol. IX at 1387-88. The standard might be difficult to meet because the elementary system-wide average for black faculty is only about 30%. Rec. vol. VIII at 1276. He then stated:

Dr. Foster: Other than that, I think if the personnel services as the board adopted the policy signs off on all transfers and employment and they won't approve them unless they're in line with the goals that are outlined in the policy, it should work out.

It's not that far off as it is right at the moment, but there are trends and discrepancies that have been obvious the last couple of years.

Id. at 1276-77. Dr. Foster also agreed that the imbalance of the faculty was not due to an intent to discriminate by the board, rather "[t]hey simply slid a little bit during that period, and, as I see it, the board is now getting them back into shape." Rec. vol. IX at 1389. Thus, the district court could rely upon the nondiscriminatory one-time reason for the faculty imbalance, together with the efforts of the district to attain racial balance in the elementary faculties, and conclude that the racial imbalance in the faculty which had existed was not indicative of segregative intent.

VIII.

This court's direction to the district court to take evidence concerning "alternatives to maintain racially balanced elementary schools," modify the Finger Plan, and then "retain jurisdiction for a reasonable period of time to oversee the implementation and maintenance of [the] assignments," Court's Opinion at 1506, is nothing short of a call for another remedy of unlimited duration. The district court plainly recognized that residential separation results in neighborhood schools which are virtually one-race black schools. Dowell, 677 F. Supp. at 1521. Plaintiffs' expert Mr. Rabin testified concerning the residential separation which still exists in Oklahoma City. But this residential separation was never linked to the school board:

Mr. Day: My question, Mr. Rabin, was with regard to the actions of the Oklahoma City Board of Education. Are you aware of any action the board took, after this court entered its decree in 1963, which compelled black to live in those tracts or any of the other 16 which you've identified as predominantly black?

Mr. Rabin: I'm not. No. No.

Rec. vol. VII at 1154-55. It is inimical to due process to hold this school board responsible, under power of contempt, Dowell, 795 F.2d at 1523, for a current condition which it did not create and is not empowered to change — residential separation. See Dowell, 677 F. Supp. at 1521.

The reality is that the 1972 plan no longer met the educational objectives of this district in grades 1-4. Resurrecting the 1972 Finger Plan concerning assignment, which was substantially changed over the years due to demographic change and finally replaced in 1985, probably is a step backward. A generation of students has been schooled, facilities have changed, the population has moved and the racial composition of the system has been altered significantly. The district has not been afraid of innovation to improve the educational experience; the Adopt-A-School program, Dowell, 677 F. Supp. at 1517, the Student Interaction Plan, Court's Opinion at 1501, and the Equity Officer and Committee, are evidence of that. These programs do not result in racial balance at every school, see Court's Opinion at 1502, but they do contribute to the district's mission of providing high-quality educational opportunity in a unitary system.

This court does not really deal with the plaintiffs' integration plan which the district court found unworkable as proposed. Dowell, 677 F. Supp. at 1524-26. Stating that its "focus is upon the issue of desegregation," this court ignores the practicality of implementing its mandate, declaring such concern to be "shibolethic [sic] speculation." Court's Opinion at 1493 n. 19. Of course, we know that the 1972 Finger Plan required extensive transportation, as would the proposed Foster Plan. Under Dr. Foster's plan, which restructures some elementary schools into K1-2 and K3-4 schools and leaves others as K1-4, the busing burden would be borne equitably between white and black students. The district court found that the school district would experience "a substantial wave of white flight." Dowell, 677 F. Supp. at 1525. Indeed, one of the permissible motivations of the neighborhood plan was to avoid white flight and increase student retention. See rec. vol. IV at 537-38 (discussing lower non-black retention rates). This court does not reject that finding, although it does cast doubt upon it, based upon a footnote in a law review article that referenced an American Lawyer report. See Court's Opinion at 1505 n. 56. Looking at the data in this case, however, Dr. Steller indicated that if the Foster Plan were adopted some students would have switched schools three times as of the fifth grade. Rec. vol. IX at 1485. Dr. Lane testified that dismantling the neighborhood plan would be disruptive because it destroys the anchor of the neighborhood school and redirects scarce resources: "Let me put it this way. This district has opted for learning; this district has opted, it seems to me, for education; and that's where it wants to put its resources." Rec. vol. VI at 898. With finite resources and energy, the school board necessarily will have to rearrange objectives given this court's decision. Rec. vol. VI at 944 (Dr. Walberg).

Linking the defendants' constitutional responsibilities to the logistics of a 17 year-old desegregation plan requires a very static view of the world. It also confuses the original remedy with the violation. As the Fifth Circuit has said:

[C]ontinuing limits imposed as a remedy after the wrong is righted effectively changes the constitutional measure of the wrong itself; it transposes the dictates of the remedy for the dictates of the constitution and, of course, they are not interchangeable. Stated another way, the constitutional violation is purposeful separation of races in public education. The mix that would have occurred but for the racism is a judicially created hypothetical. We have insisted upon matching that model of a unitary desegregated status as a remedy for the wrong. Refusing, after the match, to allow a school district to vary from that model unless it proves in "nonsegregative" purpose confuses wrong and remedy.

Overton, 834 F.2d at 1176-77. Here, the school district proved non-segregative purpose to the district court and still does not prevail. Absent a constitutional violation, the school district should not be monitored by a federal court in perpetuity. The original desegregation decree in this case should be lifted and the schools entrusted to local control as our federal Constitution envisions.

Membership by School Race K-4 Elementary Schools Includes K-4 Portion of K-5 Elementary Schools 1986-87

90% + Black Elementary Schools

K-4 Elementary Schools Membership by School 1985-86

We used the dissimilarity index primarily as a vehicle for examining school districts through time. Table 13 . . . as we have discussed, is one that simply takes some extreme districts and says, "which districts experienced the largest change . . . over the period of time?"

But we're not trying, typically, in this study to compare one district and say, "This district is particularly well integrated while the other is not," so much as saying "what are the sources of change within districts?" and "what are the plan types that led to the sources of change?"