Excerpts From Dissenting Opinion

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Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.

The Court's process of orderly adjudication has broken down in this case. The Court disposes of challenges to only two of the District Court's many discrete remedial orders by declaring that the District Court erroneously provided an interdistrict remedy for an intradistrict violation. In doing so, it resolves a foundational issue going to one element of the District Court's decree that we did not accept for review in this case, that we need not reach in order to answer the questions that we did accept for review, and that we specifically refused to consider when it was presented in a prior petition for certiorari. ...

The test score question as it comes to us is one of word play, not substance. ... [W]hat is important here is that none of the District Court's or Court of Appeals' opinions or orders require a certain level of test scores before unitary status can be found, or indicates that test scores are the only thing standing between the State and a finding of unitary status as to the K.C.M.S.D.'s Milliken II programs. ...

In the development of a proper unitary status record, test scores will undoubtedly play a role. It is true, as the Court recognizes, that all parties to this case agree that it would be error to require that the students in a school district attain the national average test score as a prerequisite to a finding of partial unitary status, if only because all sorts of causes independent of the vestiges of past school segregation might stand in the way of the goal. That said, test scores will clearly be relevant in determining whether the improvement programs have cured a deficiency in student achievement to the practicable extent. ...

There is nothing exceptionable in the lower courts' findings about the relationship between salaries and the District Court's remedial objectives, and certainly nothing in the record suggests obvious error as to the amounts of the increases ordered. If it is tempting to question the place of salary increases for administrative and maintenance personnel in a desegregation order, the Court of Appeals addressed the temptation in specifically affirming the District Court's finding that such personnel are critical to the success of the desegregation effort, and did so in the circumstances of a district whose schools have been plagued by leaking roofs, defective lighting, and reeking lavatories. ...

We have most recently summed up the obligation to correct the condition of de jure segregation by saying that the duty of a former de jure district is to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch. Although the fashioning of judicial remedies to this end has been left, in the first instance, to the equitable discretion of the district courts, in Milliken I we established an absolute limitation on this exercise of equitable authority. Without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy.

The Court proceeds as if there is no question but that this proscription applies to this case. But the proscription does not apply. We are not dealing here with an interdistrict remedy in the sense that Milliken I used the term. In the Milliken I litigation, the District Court had ordered 53 surrounding school districts to be consolidated with the Detroit school system, and mandatory busing to be started within the enlarged district, even though the court had not found that any of the suburban districts had acted in violation of the Constitution. ...

The Court ... reads Milliken I ... as categorically forbidding imposition of a remedy on a guilty district with intended consequences in a neighboring innocent district, unless the constitutional violation yielded segregative effects in that innocent district.

Today's decision therefore amounts to a redefinition of the terms of Milliken I and consequently to a substantial expansion of its limitation on the permissible remedies for prior segregation. ...

I respectfully dissent.

Vol. 14, Issue 39

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