Cite as: 515 U. S. 70 (1995)
Souter, J., dissenting
tary status as to the KCMSD's Milliken II programs. Indeed, the opinion concurring in the denial of rehearing en banc below (not mentioned by the Court, although it is certainly more probative of the governing law in the Eighth Circuit than the dissenting opinion on which the Court does rely) expressly disavows any dispositive role for test scores:
"The dissent accepts, at least in part, the State's argument that the district court adopted a student achievement goal, measured by test scores, as the only basis for determining whether past discrimination has been remedied. . . . When we deal with student achievement in a quality education program in the context of relieving a school district of court supervision, test results must be considered. Test scores, however, must be only one factor in the equation. Nothing in this court's opinion, the district court's opinion, or the testimony of KCMSD's witnesses indicates that test results were the only criteria used in denying the State's claim that its obligation for the quality education programs should be ended by a declaration they are unitary." 19 F. 3d 393, 395 (1994) (Gibson, J., concurring in denial of rehearing en banc).
If, then, test scores do not explain why there was no finding of unitary status as to the Milliken II programs, one may ask what does explain it. The answer is quite straightforward. The Court of Appeals refused to order the District Court to enter a finding of partial unitary status as to the KCMSD's Milliken II programs (and apparently, the District Court did not speak to the issue itself) simply because the State did not attempt to make the showing required for that relief. As the Court recognizes, ante, at 88- 89, we have established a clear set of procedures to be followed by governmental entities seeking the partial termination of a desegregation decree. In Freeman v. Pitts, 503 U. S. 467 (1992), we held that "[t]he duty and responsibility
149
Page: Index Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 NextLast modified: October 4, 2007