140
Souter, J., dissenting
v. Missouri, 593 F. Supp. 1485, 1490-1494, 1503-1505 (WD Mo. 1984).1 After Brown, neither the State nor the KCMSD moved to dismantle this system of separate education "root and branch," id., at 1505, despite their affirmative obligation to do that under the Constitution. Green v. School Bd. of New Kent Cty., 391 U. S. 430, 437-438 (1968). "Instead, the [KCMSD] chose to operate some completely segregated schools and some integrated ones," Jenkins, 593 F. Supp., at 1492, using devices like optional attendance zones and liberal transfer policies to "allo[w] attendance patterns to continue on a segregated basis." Id., at 1494. Consequently, on the 20th anniversary of Brown in 1974, 39 of the 77 schools in the KCMSD had student bodies that were more than 90 percent black, and 80 percent of all black schoolchildren in the KCMSD attended those schools. 593 F. Supp., at 1492- 1493. Ten years later, in the 1983-1984 school year, 24 schools remained racially isolated with more than 90 percent black enrollment. Id., at 1493. Because the State and the KCMSD intentionally created this segregated system of education, and subsequently failed to correct it, the District Court concluded that the State and the district had "defaulted in their obligation to uphold the Constitution." Id., at 1505.
Neither the State nor the KCMSD appealed this finding of liability, after which the District Court entered a series of remedial orders aimed at eliminating the vestiges of segrega-1 In related litigation about the schools of St. Louis, the Eighth Circuit has noted that "[b]efore the Civil War, Missouri prohibited the creation of schools to teach reading and writing to blacks. Act of February 16, 1847, § 1, 1847 Mo. Laws 103. State-mandated segregation was first imposed in the 1865 Constitution, Article IX § 2. It was reincorporated in the Missouri Constitution of 1945: Article IX specifically provided that separate schools were to be maintained for 'white and colored children.' In 1952, the Missouri Supreme Court upheld the constitutionality of Article IX under the United States Constitution. Article IX was not repealed until 1976." Liddell v. Missouri, 731 F. 2d 1294, 1305-1306 (CA8 1984) (case citations and footnote omitted).
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