APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

[604] John F. Davis argued the cause for appellant. On the brief were Solicitor General Rankin, Assistant Attorney General Yeagley and Kevin T. Maroney.

David Rein argued the cause for appellee. With him on the brief was Joseph Forer.

MR. JUSTICE HARLAN delivered the opinion of the Court.

From a decision of the District Court for the District of Columbia holding § 202 (n) of the Social Security Act (68 Stat. 1083, as amended, 42 U. S. C. § 402 (n)) unconstitutional, the Secretary of Health, Education, and Welfare takes this direct appeal pursuant to 28 U. S. C. § 1252. The challenged section, set forth in full in the margin,^[1] provides for the termination of old-age, survivor, [605] and disability insurance benefits payable to, or in certain cases in respect of, an alien individual who, after September 1, 1954 (the date of enactment of the section), is deported under § 241 (a) of the Immigration and Nationality Act (8 U. S. C. § 1251 (a)) on any one of certain grounds specified in § 202 (n).

Appellee, an alien, immigrated to this country from Bulgaria in 1913, and became eligible for old-age benefits in November 1955. In July 1956 he was deported pursuant to § 241 (a) (6) (C) (i) of the Immigration and Nationality Act for having been a member of the Communist Party from 1933 to 1939. This being one of the benefit-termination deportation grounds specified in § 202 (n), appellee's benefits were terminated soon thereafter, and notice of the termination was given to his wife, [606] who had remained in this country.^[2] Upon his failure to obtain administrative reversal of the decision, appellee commenced this action in the District Court, pursuant to § 205 (g) of the Social Security Act (53 Stat. 1370, as amended, 42 U. S. C. § 405 (g)), to secure judicial review.^[3] On cross-motions for summary judgment, the District Court ruled for appellee, holding § 202 (n) unconstitutional under the Due Process Clause of the Fifth Amendment in that it deprived appellee of an accrued property right. 169 F. Supp. 922. The Secretary prosecuted an appeal to this Court, and, subject to a jurisdictional question hereinafter discussed, we set the case down for plenary hearing. 360 U. S. 915.

The preliminary jurisdictional question is whether 28 U. S. C. § 2282 is applicable, and therefore required that the case be heard below before three judges, rather than by a single judge, as it was. Section 2282 forbids the issuance, except by a three-judge District Court, of [607] any "interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution . . . ." Neither party requested a three-judge court below, and in this Court both parties argue the inapplicability of § 2282. If the provision applies, we cannot reach the merits, but must vacate the judgment below and remand the case for consideration by a three-judge District Court. See Federal Housing Administration v. The Darlington, Inc., 352 U. S. 977.

Under the decisions of this Court, this § 205 (g) action could, and did, draw in question the constitutionality of § 202 (n). See, e. g., Anniston Mfg. Co. v. Davis, 301 U. S. 337, 345-346. However, the action did no more. It did not seek affirmatively to interdict the operation of a statutory scheme. A judgment for appellee would not put the operation of a federal statute under the restraint of an equity decree; indeed, apart from its effect under the doctrine of stare decisis, it would have no other result than to require the payment of appellee's benefits. In these circumstances we think that what was said in Garment Workers v. Donnelly Co., 304 U. S. 243, where this Court dealt with an analogous situation, is controlling here:

"[The predecessor of § 2282] does not provide for a case where the validity of an Act of Congress is merely drawn in question, albeit that question be decided, but only for a case where there is an application for an interlocutory or permanent injunction to restrain the enforcement of an Act of Congress.. . . Had Congress intended the provision. . . , for three judges and direct appeal, to apply whenever a question of the validity of an Act of Congress became involved, Congress would naturally have used the familiar phrase `drawn in question' . . . ." Id., at 250.

[608] We hold that jurisdiction over the action was properly exercised by the District Court, and therefore reach the merits.

I.

We think that the District Court erred in holding that § 202 (n) deprived appellee of an "accrued property right." 169 F. Supp., at 934. Appellee's right to Social Security benefits cannot properly be considered to have been of that order.

The general purposes underlying the Social Security Act were expounded by Mr. Justice Cardozo in Helvering v. Davis, 301 U. S. 619, 640-645. The issue here, however, requires some inquiry into the statutory scheme by which those purposes are sought to be achieved. Payments under the Act are based upon the wage earner's record of earnings in employment or self-employment covered by the Act, and take the form of old-age insurance and disability insurance benefits inuring to the wage earner (known as the "primary beneficiary"), and of benefits, including survivor benefits, payable to named dependents ("secondary beneficiaries") of a wage earner. Broadly speaking, eligibility for benefits depends on satisfying statutory conditions as to (1) employment in covered employment or self-employment (see § 210 (a), 42 U. S. C. § 410 (a)); (2) the requisite number of "quarters of coverage"—i. e., three-month periods during which not less than a stated sum was earned—the number depending generally on age (see §§ 213-215, 42 U. S. C. §§ 413-415); and (3) attainment of the retirement age (see § 216 (a), 42 U. S. C. § 416 (a)). § 202 (a), 42 U. S. C. § 402 (a).^[4] Entitlement to benefits once gained, [609] is partially or totally lost if the beneficiary earns more than a stated annual sum, unless he or she is at least 72 years old. § 203 (b), (e), 42 U. S. C. § 403 (b), (e). Of special importance in this case is the fact that eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes, but rather on the earnings record of the primary beneficiary.

The program is financed through a payroll tax levied on employees in covered employment, and on their employers. The tax rate, which is a fixed percentage of the first $4,800 of employee annual income, is set at a scale which will increase from year to year, presumably to keep pace with rising benefit costs. I. R. C. of 1954, §§ 3101, 3111, 3121 (a). The tax proceeds are paid into the Treasury "as internal-revenue collections," I. R. C., § 3501, and each year an amount equal to the proceeds is appropriated to a Trust Fund, from which benefits and the expenses of the program are paid. § 201, 42 U. S. C. § 401. It was evidently contemplated that receipts would greatly exceed disbursements in the early years of operation of the system, and surplus funds are invested in government obligations, and the income returned to the Trust Fund. Thus, provision is made for expected increasing costs of the program.

The Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress' power to "spend money in aid of the `general welfare,' " Helvering v. Davis, supra, at 640, whereby persons gainfully employed, and those who employ them, are taxed to permit the payment of benefits to the retired and disabled, and their dependents. Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. But each worker's benefits, though flowing from the contributions he made to the [610] national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.

It is hardly profitable to engage in conceptualizations regarding "earned rights" and "gratuities." Cf. Lynch v. United States, 292 U. S. 571, 576-577. The "right" to Social Security benefits is in one sense "earned," for the entire scheme rests on the legislative judgment that those who in their productive years were functioning members of the economy may justly call upon that economy, in their later years, for protection from "the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near." Helvering v. Davis, supra, at 641. But the practical effectuation of that judgment has of necessity called forth a highly complex and interrelated statutory structure. Integrated treatment of the manifold specific problems presented by the Social Security program demands more than a generalization. That program was designed to function into the indefinite future, and its specific provisions rest on predictions as to expected economic conditions which must inevitably prove less than wholly accurate, and on judgments and preferences as to the proper allocation of the Nation's resources which evolving economic and social conditions will of necessity in some degree modify.

To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands. See Wollenberg, Vested Rights in Social-Security Benefits, 37 Ore. L. Rev. 299, 359. It was doubtless out of an awareness of the need for such flexibility that Congress included in the original Act, and [611] has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act. § 1104, 49 Stat. 648, 42 U. S. C. § 1304. That provision makes express what is implicit in the institutional needs of the program. See Analysis of the Social Security System, Hearings before a Subcommittee of the Committee on Ways and Means, House of Representatives, 83d Cong., 1st Sess., pp. 920-921. It was pursuant to that provision that § 202 (n) was enacted.

We must conclude that a person covered by the Act has not such a right in benefit payments as would make every defeasance of "accrued" interests violative of the Due Process Clause of the Fifth Amendment.

II.

This is not to say, however, that Congress may exercise its power to modify the statutory scheme free of all constitutional restraint. The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause. In judging the permissibility of the cut-off provisions of § 202 (n) from this standpoint, it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether it comports well or ill with the purposes of the Act. "Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom." Helvering v. Davis, supra, at 644. Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.

[612] Such is not the case here. The fact of a beneficiary's residence abroad—in the case of a deportee, a presumably permanent residence—can be of obvious relevance to the question of eligibility. One benefit which may be thought to accrue to the economy from the Social Security system is the increased over-all national purchasing power resulting from taxation of productive elements of the economy to provide payments to the retired and disabled, who might otherwise be destitute or nearly so, and who would generally spend a comparatively large percentage of their benefit payments. This advantage would be lost as to payments made to one residing abroad. For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision, as it is irrelevant that the section does not extend to all to whom the postulated rationale might in logic apply.^[5] See United States v. Petrillo, 332 U. S. 1, 8-9; Steward Machine Co. v. Davis, 301 U. S. 548, 584-585; cf. Carmichael v. Southern Coal Co., 301 U. S. 495, 510-513. Nor, apart from this, can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute.

We need go no further to find support for our conclusion that this provision of the Act cannot be condemned as so lacking in rational justification as to offend due process.

III.

The remaining, and most insistently pressed, constitutional objections rest upon Art. I, § 9, cl. 3, and Art. III, [613] § 2, cl. 3, of the Constitution, and the Sixth Amendment.^[6] It is said that the termination of appellee's benefits amounts to punishing him without a judicial trial, see Wong Wing v. United States, 163 U. S. 228; that the termination of benefits constitutes the imposition of punishment by legislative act, rendering § 202 (n) a bill of attainder, see United States v. Lovett, 328 U. S. 303; Cummings v. Missouri, 4 Wall. 277; and that the punishment exacted is imposed for past conduct not unlawful when engaged in, thereby violating the constitutional prohibition on ex post facto laws, see Ex parte Garland, 4 Wall. 333.^[7] Essential to the success of each of these contentions is the validity of characterizing as "punishment" in the constitutional sense the termination of benefits under § 202 (n).

In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was [614] focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. In the earliest case on which appellee relies, a clergyman successfully challenged a state constitutional provision barring from that profession—and from many other professions and offices—all who would not swear that they had never manifested any sympathy or support for the cause of the Confederacy. Cummings v. Missouri, supra. The Court thus described the aims of the challenged enactment:

"The oath could not . . . have been required as a means of ascertaining whether parties were qualified or not for their respective callings or the trusts with which they were charged. It was required in order to reach the person, not the calling. It was exacted, not from any notion that the several acts designated indicated unfitness for the callings, but because it was thought that the several acts deserved punishment. . . ." Id., at 320. (Emphasis supplied.)

Only the other day the governing inquiry was stated, in an opinion joined by four members of the Court, in these terms:

"The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation, such as the proper qualifications for a profession." De Veau v. Braisted, 363 U. S. 144, 160 (plurality opinion).

[615] In Ex parte Garland, supra, where the Court struck down an oath—similar in content to that involved in Cummings—required of attorneys seeking to practice before any federal court, as also in Cummings, the finding of punitive intent drew heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and "the fierce passions which that struggle aroused." Cummings v. Missouri, supra, at 322.^[8] Similarly, in United States v. Lovett, supra, where the Court invalidated, as a bill of attainder, a statute forbidding—subject to certain conditions—the further payment of the salaries of three named government employees, the determination that a punishment had been imposed rested in large measure on the specific Congressional history which the Court was at pains to spell out in detail. See 328 U. S., at 308-312. Most recently, in Trop v. Dulles, 356 U. S. 86, which held unconstitutional a statute providing for the expatriation of one who had been sentenced by a court-martial to dismissal or dishonorable discharge for wartime desertion, the majority of the Court characterized the statute as punitive. However, no single opinion commanded the support of a majority. The plurality opinion rested its determination, at least in part, on its inability to discern any alternative purpose which the statute could be thought to serve. Id., at 97. The concurring opinion found in the specific historical evolution of the provision in question compelling evidence of punitive intent. Id., at 107-109.

[616] It is thus apparent that, though the governing criterion may be readily stated, each case has turned on its own highly particularized context. Where no persuasive showing of a purpose "to reach the person, not the calling," Cummings v. Missouri, supra, at 320, has been made, the Court has not hampered legislative regulation of activities within its sphere of concern, despite the often-severe effects such regulation has had on the persons subject to it.^[9] Thus, deportation has been held to be not punishment, but an exercise of the plenary power of Congress to fix the conditions under which aliens are to be permitted to enter and remain in this country. Fong Yue Ting v. United States, 149 U. S. 698, 730; see Galvan v. Press, 347 U. S. 522, 530-531. Similarly, the setting by a State of qualifications for the practice of medicine, and their modification from time to time, is an incident of the State's power to protect the health and safety of its citizens, and its decision to bar from practice persons who commit or have committed a felony is taken as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment of ex-felons. Hawker v. New York, 170 U. S. 189. See De Veau v. Braisted, supra (regulation of crime on the waterfront through disqualification of ex-felons from holding union office). Cf. Helvering v. Mitchell, 303 U. S. 391, 397-401, holding that, with respect to deficiencies due to fraud, a 50 percent addition to the tax imposed was not punishment so as to prevent, upon principles of double jeopardy, its assessment against one acquitted of tax evasion.

Turning, then, to the particular statutory provision before us, appellee cannot successfully contend that the language and structure of § 202 (n), or the nature of [617] the deprivation, requires us to recognize a punitive design. Cf. Wong Wing v. United States, supra (imprisonment, at hard labor up to one year, of person found to be unlawfully in the country). Here the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed, and certainly nothing approaching the "infamous punishment" of imprisonment, as in Wong Wing, on which great reliance is mistakenly placed. Moreover, for reasons already given (ante, pp. 611-612), it cannot be said, as was said of the statute in Cummings v. Missouri, supra, at 319; see Dent v. West Virginia, 129 U. S. 114, 126, that the disqualification of certain deportees from receipt of Social Security benefits while they are not lawfully in this country bears no rational connection to the purposes of the legislation of which it is a part, and must without more therefore be taken as evidencing a Congressional desire to punish. Appellee argues, however, that the history and scope of § 202 (n) prove that no such postulated purpose can be thought to have motivated the legislature, and that they persuasively show that a punitive purpose in fact lay behind the statute. We do not agree.

We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it. "[I]t is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void." Fletcher v. Peck, 6 Cranch 87, 128.

[618] Section 202 (n) was enacted as a small part of an extensive revision of the Social Security program. The provision originated in the House of Representatives. H. R. 9366, 83d Cong., 2d Sess., § 108. The discussion in the House Committee Report, H. R. Rep. No. 1698, 83d Cong., 2d Sess., pp. 5, 25, 77, does not express the purpose of the statute. However, it does say that the termination of benefits would apply to those persons who were "deported from the United States because of illegal entry, conviction of a crime, or subversive activity . . . ." Id., at 25. It was evidently the thought that such was the scope of the statute resulting from its application to deportation under the 14 named paragraphs of § 241 (a) of the Immigration and Nationality Act. Id., at 77.^[10]

The Senate Committee rejected the proposal, for the stated reason that it had "not had an opportunity to give sufficient study to all the possible implications of this provision, which involves termination of benefit rights under the contributory program of old-age and survivors insurance . . . ." S. Rep. No. 1987, 83d Cong., 2d Sess., p. 23; see also id., at 76. However, in Conference, the proposal was restored in modified form,^[11] and as modified was enacted as § 202 (n). See H. R. Conf. Rep. No. 2679, 83d Cong., 2d Sess., p. 18.

Appellee argues that this history demonstrates that Congress was not concerned with the fact of a beneficiary's [619] deportation—which it is claimed alone would justify this legislation as being pursuant to a policy relevant to regulation of the Social Security system—but that it sought to reach certain grounds for deportation, thus evidencing a punitive intent.^[12] It is impossible to find in this meagre history the unmistakable evidence of punitive intent which, under principles already discussed, is required before a Congressional enactment of this kind may be struck down. Even were that history to be taken as evidencing Congress' concern with the grounds, rather than the fact, of deportation, we do not think that this, standing alone, would suffice to establish a punitive purpose. This would still be a far cry from the situations involved in such cases as Cummings, Wong Wing, and Garland (see ante, p. 617), and from that in Lovett, supra, where the legislation was on its face aimed at particular individuals. The legislative record, however, falls short of any persuasive showing that Congress was in fact concerned alone with the grounds of deportation. To be sure Congress did not apply the termination [620] provision to all deportees. However, it is evident that neither did it rest the operation of the statute on the occurrence of the underlying act. The fact of deportation itself remained an essential condition for loss of benefits, and even if a beneficiary were saved from deportation only through discretionary suspension by the Attorney General under § 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U. S. C. § 1254), § 202 (n) would not reach him.

Moreover, the grounds for deportation referred to in the Committee Report embrace the great majority of those deported, as is evident from an examination of the four omitted grounds, summarized in the margin.^[13] Inferences drawn from the omission of those grounds cannot establish, to the degree of certainty required, that Congressional concern was wholly with the acts leading to deportation, and not with the fact of deportation.^[14] To hold otherwise would be to rest on the "slight implication and vague conjecture" against which Chief Justice Marshall warned. Fletcher v. Peck, supra, at 128.

The same answer must be made to arguments drawn from the failure of Congress to apply § 202 (n) to beneficiaries [621] voluntarily residing abroad. But cf. § 202 (t), ante, note 5. Congress may have failed to consider such persons; or it may have thought their number too slight, or the permanence of their voluntary residence abroad too uncertain, to warrant application of the statute to them, with its attendant administrative problems of supervision and enforcement. Again, we cannot with confidence reject all those alternatives which imaginativeness can bring to mind, save that one which might require the invalidation of the statute.

Reversed.

MR. JUSTICE BLACK, dissenting.

For the reasons stated here and in the dissents of MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN I agree with the District Court that the United States is depriving appellee, Ephram Nestor, of his statutory right to old-age benefits in violation of the United States Constitution.

Nestor came to this country from Bulgaria in 1913 and lived here continuously for 43 years, until July 1956. He was then deported from this country for having been a Communist from 1933 to 1939. At that time membership in the Communist Party as such was not illegal and was not even a statutory ground for deportation. From December 1936 to January 1955 Nestor and his employers made regular payments to the Government under the Federal Insurance Contributions Act, 26 U. S. C. §§ 3101-3125. These funds went to a special federal old-age and survivors insurance trust fund under 49 Stat. 622, 53 Stat. 1362, as amended, 42 U. S. C. § 401, in return for which Nestor, like millions of others, expected to receive payments when he reached the statutory age. In 1954, 15 years after Nestor had last been a Communist, and 18 years after he began to make payments into the old-age security fund, Congress passed a law providing, among other things, that any person who had been deported from [622] this country because of past Communist membership under 66 Stat. 205, 8 U. S. C. § 1251 (a) (6) (C) should be wholly cut off from any benefits of the fund to which he had contributed under the law. 68 Stat. 1083, 42 U. S. C. § 402 (n). After the Government deported Nestor in 1956 it notified his wife, who had remained in this country, that he was cut off and no further payments would be made to him. This action, it seems to me, takes Nestor's insurance without just compensation and in violation of the Due Process Clause of the Fifth Amendment. Moreover, it imposes an ex post facto law and bill of attainder by stamping him, without a court trial, as unworthy to receive that for which he has paid and which the Government promised to pay him. The fact that the Court is sustaining this action indicates the extent to which people are willing to go these days to overlook violations of the Constitution perpetrated against anyone who has ever even innocently belonged to the Communist Party.

I.

In Lynch v. United States, 292 U. S. 571, this Court unanimously held that Congress was without power to repudiate and abrogate in whole or in part its promises to pay amounts claimed by soldiers under the War Risk Insurance Act of 1917, §§ 400-405, 40 Stat. 409. This Court held that such a repudiation was inconsistent with the provision of the Fifth Amendment that "No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Court today puts the Lynch case aside on the ground that "It is hardly profitable to engage in conceptualizations regarding `earned rights' and `gratuities.' " From this sound premise the Court goes on to say that while "The `right' to Social Security benefits is in one sense `earned,' " [623] yet the Government's insurance scheme now before us rests not on the idea of the contributors to the fund earning something, but simply provides that they may "justly call" upon the Government "in their later years, for protection from `the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.' " These are nice words but they cannot conceal the fact that they simply tell the contributors to this insurance fund that despite their own and their employers' payments the Government, in paying the beneficiaries out of the fund, is merely giving them something for nothing and can stop doing so when it pleases. This, in my judgment, reveals a complete misunderstanding of the purpose Congress and the country had in passing that law. It was then generally agreed, as it is today, that it is not desirable that aged people think of the Government as giving them something for nothing. An excellent statement of this view, quoted by MR. JUSTICE DOUGLAS in another connection, was made by Senator George, the Chairman of the Finance Committee when the Social Security Act was passed, and one very familiar with the philosophy that brought it about:

"It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles— that what is due as a matter of earned right is far better than a gratuity. . . .

.....

"Social Security is not a handout; it is not charity; it is not relief. It is an earned right based upon the contributions and earnings of the individual. As an earned right, the individual is eligible to receive his benefit in dignity and self-respect." 102 Cong. Rec. 15110.

[624] The people covered by this Act are now able to rely with complete assurance on the fact that they will be compelled to contribute regularly to this fund whenever each contribution falls due. I believe they are entitled to rely with the same assurance on getting the benefits they have paid for and have been promised, when their disability or age makes their insurance payable under the terms of the law. The Court did not permit the Government to break its plighted faith with the soldiers in the Lynch case; it said the Constitution forbade such governmental conduct. I would say precisely the same thing here.

The Court consoles those whose insurance is taken away today, and others who may suffer the same fate in the future, by saying that a decision requiring the Social Security system to keep faith "would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands." People who pay premiums for insurance usually think they are paying for insurance, not for "flexibility and boldness." I cannot believe that any private insurance company in America would be permitted to repudiate its matured contracts with its policyholders who have regularly paid all their premiums in reliance upon the good faith of the company. It is true, as the Court says, that the original Act contained a clause, still in force, that expressly reserves to Congress "[t]he right to alter, amend, or repeal any provision" of the Act. § 1104, 49 Stat. 648, 42 U. S. C. § 1304. Congress, of course, properly retained that power. It could repeal the Act so as to cease to operate its old-age insurance activities for the future. This means that it could stop covering new people, and even stop increasing its obligations to its old contributors. But that is quite different from disappointing the just expectations of the contributors to the fund which the Government has compelled [625] them and their employers to pay its Treasury. There is nothing "conceptualistic" about saying, as this Court did in Lynch, that such a taking as this the Constitution forbids.

II.

In part II of its opinion, the Court throws out a line of hope by its suggestion that if Congress in the future cuts off some other group from the benefits they have bought from the Government, this Court might possibly hold that the future hypothetical act violates the Due Process Clause. In doing so it reads due process as affording only minimal protection, and under this reading it will protect all future groups from destruction of their rights only if Congress "manifests a patently arbitrary classification, utterly lacking in rational justification." The Due Process Clause so defined provides little protection indeed compared with the specific safeguards of the Constitution such as its prohibitions against taking private property for a public use without just compensation, passing ex post facto laws, and imposing bills of attainder. I cannot agree, however, that the Due Process Clause is properly interpreted when it is used to subordinate and dilute the specific safeguards of the Bill of Rights, and when "due process" itself becomes so wholly dependent upon this Court's idea of what is "arbitrary" and "rational." See Levine v. United States, 362 U. S. 610, 620 (dissenting opinion); Adamson v. California, 332 U. S. 46, 89-92 (dissenting opinion); Rochin v. California, 342 U. S. 165, 174 (concurring opinion). One reason for my belief in this respect is that I agree with what is said in the Court's quotation from Helvering v. Davis, 301 U. S. 619, 644:

"Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for [626] us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom."

And yet the Court's assumption of its power to hold Acts unconstitutional because the Court thinks they are arbitrary and irrational can be neither more nor less than a judicial foray into the field of governmental policy. By the use of this due process formula the Court does not, as its proponents frequently proclaim, abstain from interfering with the congressional policy. It actively enters that field with no standards except its own conclusion as to what is "arbitrary" and what is "rational." And this elastic formula gives the Court a further power, that of holding legislative Acts constitutional on the ground that they are neither arbitrary nor irrational, even though the Acts violate specific Bill of Rights safeguards. See my dissent in Adamson v. California, supra. Whether this Act had "rational justification" was, in my judgment, for Congress; whether it violates the Federal Constitution is for us to determine, unless we are by circumlocution to abdicate the power that this Court has been held to have ever since Marbury v. Madison, 1 Cranch 137.

III.

The Court in part III of its opinion holds that the 1954 Act is not an ex post facto law or bill of attainder even though it creates a class of deportees who cannot collect their insurance benefits because they were once Communists at a time when simply being a Communist was not illegal. The Court also puts great emphasis on its belief that the Act here is not punishment. Although not believing that the particular label "punishment" is of decisive importance, I think the Act does impose punishment even in a classic sense. The basic reason for [627] Nestor's loss of his insurance payments is that he was once a Communist. This man, now 69 years old, has been driven out of the country where he has lived for 43 years to a land where he is practically a stranger, under an Act authorizing his deportation many years after his Communist membership. Cf. Galvan v. Press, 347 U. S. 522, 532, 533 (dissenting opinions). Now a similar ex post facto law deprives him of his insurance, which, while petty and insignificant in amount to this great Government, may well be this exile's daily bread, for the same reason and in accord with the general fashion of the day— that is, to punish in every way possible anyone who ever made the mistake of being a Communist in this country or who is supposed ever to have been associated with anyone who made that mistake. See, e. g., Barenblatt v. United States, 360 U. S. 109, and Uphaus v. Wyman, 360 U. S. 72. In United States v. Lovett, 328 U. S. 303, 315-316, we said:

". . . legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution."

Faithful observance of our holdings in that case, in Ex parte Garland, 4 Wall. 333, and in Cummings v. Missouri, 4 Wall. 277, would, in my judgment, require us to hold that the 1954 Act is a bill of attainder. It is a congressional enactment aimed at an easily ascertainable group; it is certainly punishment in any normal sense of the word to take away from any person the benefits of an insurance system into which he and his employer have paid their moneys for almost two decades; and it does all this without a trial according to due process of law. It is true that the Lovett, Cummings and Garland Court opinions were [628] not unanimous, but they nonetheless represent positive precedents on highly important questions of individual liberty which should not be explained away with cobwebbery refinements. If the Court is going to overrule these cases in whole or in part, and adopt the views of previous dissenters, I believe it should be done clearly and forthrightly.

A basic constitutional infirmity of this Act, in my judgment, is that it is a part of a pattern of laws all of which violate the First Amendment out of fear that this country is in grave danger if it lets a handful of Communist fanatics or some other extremist group make their arguments and discuss their ideas. This fear, I think, is baseless. It reflects a lack of faith in the sturdy patriotism of our people and does not give to the world a true picture of our abiding strength. It is an unworthy fear in a country that has a Bill of Rights containing provisions for fair trials, freedom of speech, press and religion, and other specific safeguards designed to keep men free. I repeat once more that I think this Nation's greatest security lies, not in trusting to a momentary majority of this Court's view at any particular time of what is "patently arbitrary," but in wholehearted devotion to and observance of our constitutional freedoms. See Wieman v. Updegraff, 344 U. S. 183, 192 (concurring opinion).

I would affirm the judgment of the District Court which held that Nestor is constitutionally entitled to collect his insurance.

MR. JUSTICE DOUGLAS, dissenting.

Appellee came to this country from Bulgaria in 1913 and was employed, so as to be covered by the Social Security Act, from December 1936 to January 1955—a period of 19 years. He became eligible for retirement [629] and for Social Security benefits in November 1955 and was awarded $55.60 per month. In July 1956 he was deported for having been a member of the Communist Party from 1933 to 1939. Pursuant to a law, enacted September 1, 1954, he was thereupon denied payment of further Social Security benefits.

This 1954 law seems to me to be a classic example of a bill of attainder, which Art, I, § 9 of the Constitution prohibits Congress from enacting. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Cummings v. Missouri, 4 Wall. 277, 323.

In the old days punishment was meted out to a creditor or rival or enemy by sending him to the gallows. But as recently stated by Irving Brant,^[15]

". . . By smiting a man day after day with slanderous words, by taking away his opportunity to earn a living, you can drain the blood from his veins without even scratching his skin.

"Today's bill of attainder is broader than the classic form, and not so tall and sharp. There is mental in place of physical torture, and confiscation of tomorrow's bread and butter instead of yesterday's land and gold. What is perfectly clear is that hate, fear and prejudice play the same role today, in the destruction of human rights in America that they did in England when a frenzied mob of lords, judges, bishops and shoemakers turned the Titus Oates blacklist into a hangman's record. Hate, jealousy and spite continue to fill the legislative attainder lists just as they did in the Irish Parliament of ex-King James."

[630] Bills of attainder, when they imposed punishment less than death, were bills of pains and penalties and equally beyond the constitutional power of Congress. Cummings v. Missouri, supra, at 323.

Punishment in the sense of a bill of attainder includes the "deprivation or suspension of political or civil rights." Cummings v. Missouri, supra, at 322. In that case it was barring a priest from practicing his profession. In Ex parte Garland, 4 Wall. 333, it was excluding a man from practicing law in the federal courts. In United States v. Lovett, 328 U. S. 303, it was cutting off employees' compensation and barring them permanently from government service. Cutting off a person's livelihood by denying him accrued social benefits—part of his property interests—is no less a punishment. Here, as in the other cases cited, the penalty exacted has one of the classic purposes of punishment^[16]—"to reprimand the wrongdoer, to deter others." Trop v. Dulles, 356 U. S. 86, 96.

[631] Social Security payments are not gratuities. They are products of a contributory system, the funds being raised by payment from employees and employers alike, or in case of self-employed persons, by the individual alone. See Social Security Board v. Nierotko, 327 U. S. 358, 364. The funds are placed in the Federal Old-Age and Survivors Insurance Trust Fund, 42 U. S. C. § 401 (a); and only those who contribute to the fund are entitled to its benefits, the amount of benefits being related to the amount of contributions made. See Stark, Social Security: Its Importance to Lawyers, 43 A. B. A. J. 319, 321 (1957). As the late Senator George, long Chairman of the Senate Finance Committee and one of the authors of the Social Security system, said:

"There has developed through the years a feeling both in and out of Congress that the contributory social insurance principle fits our times—that it serves a vital need that cannot be as well served otherwise. It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles—that what is due as a matter of earned right is far better than a gratuity. . . .

.....

"Social security is not a handout; it is not charity; it is not relief. It is an earned right based upon the [632] contributions and earnings of the individual. As an earned right, the individual is eligible to receive his benefit in dignity and self-respect." 102 Cong. Rec. 15110.

Social Security benefits have rightly come to be regarded as basic financial protection against the hazards of old age and disability. As stated in a recent House Report:

"The old-age and survivors insurance system is the basic program which provides protection for America's families against the loss of earned income upon the retirement or death of the family provider. The program provides benefits related to earned income and such benefits are paid for by the contributions made with respect to persons working in covered occupations." H. R. Rep. No. 1189, 84th Cong., 1st Sess. 2.

Congress could provide that only people resident here could get Social Security benefits. Yet both the House and the Senate rejected any residence requirements. See H. R. Rep. No. 1698, 83d Cong., 2d Sess. 24-25; S. Rep. No. 1987, 83d Cong., 2d Sess. 23. Congress concededly might amend the program to meet new conditions. But may it take away Social Security benefits from one person or from a group of persons for vindictive reasons? Could Congress on deporting an alien for having been a Communist confiscate his home, appropriate his savings accounts, and thus send him out of the country penniless? I think not. Any such Act would be a bill of attainder. The difference, as I see it, between that case and this is one merely of degree. Social Security benefits, made up in part of this alien's own earnings, are taken from him because he once was a Communist.

The view that § 202 (n), with which we now deal, imposes a penalty was taken by Secretary Folsom, appellant's [633] predecessor, when opposing enlargement of the category of people to be denied benefits of Social Security, e. g., those convicted of treason and sedition. He said:

"Because the deprivation of benefits as provided in the amendment is in the nature of a penalty and based on considerations foreign to the objectives and provisions of the old-age and survivors insurance program, the amendment may well serve as a precedent for extension of similar provisions to other public programs and to other crimes which, while perhaps different in degree, are difficult to distinguish in principle.

"The present law recognizes only three narrowly limited exceptions^[17] to the basic principle that benefits are paid without regard to the attitudes, opinions, behavior, or personal characteristics of the individual. . . ." Hearings, Senate Finance Committee on Social Security Amendments of 1955, 84th Cong., 2d Sess. 1319.

The Committee Reports, though meagre, support Secretary Folsom in that characterization of § 202 (n). The House Report tersely stated that termination of the benefits would apply to those persons who were deported "because of illegal entry, conviction of a crime, or subversive activity." H. R. Rep. No. 1698, 83d Cong., 2d Sess. 25. The aim and purpose are clear—to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology. That is a modern version [634] of the bill of attainder—as plain, as direct, as effective as those which religious passions once loosed in England and which later were employed against the Tories here.^[18] I would affirm this judgment.

MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.

When Nestor quit the Communist Party in 1939 his past membership was not a ground for his deportation. Kessler v. Strecker, 307 U. S. 22. It was not until a year later that past membership was made a specific ground for deportation.^[19] This past membership has cost Nestor [635] dear. It brought him expulsion from the country after 43 years' residence—most of his life. Now more is exacted from him, for after he had begun to receive benefits in 1955—having worked in covered employment the required time and reached age 65—and might anticipate receiving them the rest of his life, the benefits were stopped pursuant to § 202 (n) of the Amended Social Security Act.^[20] His predicament is very real—an aging man deprived of the means with which to live after being separated from his family and exiled to live among strangers in a land he quit 47 years ago. The common sense of it is that he has been punished severely for his past conduct.

Even the 1950 statute deporting aliens for past membership raised serious questions in this Court whether the prohibition against ex post facto laws was violated. In Galvan v. Press, 347 U. S. 522, 531, we said "since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation." However, precedents which treat deportation not as punishment, but as a permissible exercise of congressional power to enact the conditions under which aliens may [636] come to and remain in this country, governed the decision in favor of the constitutionality of the statute.

However, the Court cannot rest a decision that § 202 (n) does not impose punishment on Congress' power to regulate immigration. It escapes the common-sense conclusion that Congress has imposed punishment by finding the requisite rational nexus to a granted power in the supposed furtherance of the Social Security program "enacted pursuant to Congress' power to `spend money in aid of the "general welfare." ' " I do not understand the Court to deny that but for that connection, § 202 (n) would impose punishment and not only offend the constitutional prohibition on ex post facto laws but also violate the constitutional guarantees against imposition of punishment without a judicial trial.

The Court's test of the constitutionality of § 202 (n) is whether the legislative concern underlying the statute was to regulate "the activity or status from which the individual is barred" or whether the statute "is evidently aimed at the person or class of persons disqualified." It rejects the inference that the statute is "aimed at the person or class of persons disqualified" by relying upon the presumption of constitutionality. This presumption might be a basis for sustaining the statute if in fact there were two opposing inferences which could reasonably be drawn from the legislation, one that it imposes punishment and the other that it is purposed to further the administration of the Social Security program. The Court, however, does not limit the presumption to that use. Rather the presumption becomes a complete substitute for any supportable finding of a rational connection of § 202 (n) with the Social Security program. For me it is not enough to state the test and hold that the presumption alone satisfies it. I find it necessary to examine the Act and its consequences to ascertain whether there [637] is ground for the inference of a congressional concern with the administration of the Social Security program. Only after this inquiry would I consider the application of the presumption.

The Court seems to acknowledge that the statute bears harshly upon the individual disqualified, but states that this is permissible when a statute is enacted as a regulation of the activity. But surely the harshness of the consequences is itself a relevant consideration to the inquiry into the congressional purpose.^[21] Cf. Trop v. Dulles, 356 U. S. 86, 110 (concurring opinion).

It seems to me that the statute itself shows that the sole legislative concern was with "the person or class of persons disqualified." Congress did not disqualify for benefits all beneficiaries residing abroad or even all dependents residing abroad who are aliens. If that had been the case I might agree that Congress' concern would have been with "the activity or status" and not with the "person or class of persons disqualified." The scales would then be tipped toward the conclusion that Congress desired to limit benefit payments to beneficiaries residing in the United States so that the American economy would be aided by expenditure of benefits here. Indeed a proposal along those lines was submitted to Congress in [638] 1954, at the same time § 202 (n) was proposed,^[22] and it was rejected.^[23]

Perhaps, the Court's conclusion that regulation of "the activity or status" was the congressional concern would be a fair appraisal of the statute if Congress had terminated the benefits of all alien beneficiaries who are deported. But that is not what Congress did. Section 202 (n) applies only to aliens deported on one or more of 14 of the 18 grounds for which aliens may be deported.^[24]

H. R. Rep. No. 1698, 83d Cong., 2d Sess. 25, 77, cited by the Court, describes § 202 (n) as including persons who were deported "because of unlawful entry, conviction of a crime, or subversive activity." The section, in addition, covers those deported for such socially condemned acts as narcotic addiction or prostitution. The common element of the 14 grounds is that the alien has been guilty of some blameworthy conduct. In other words Congress worked its will only on aliens deported for conduct displeasing to the lawmakers.

This is plainly demonstrated by the remaining four grounds of deportation, those which do not result in the cancellation of benefits.^[25] Two of those four grounds cover persons who become public charges within five years after entry for reasons which predated the entry. A third ground covers the alien who fails to maintain his nonimmigrant status. The fourth ground reaches the alien who, prior to or within five years after entry, aids other aliens to enter the country illegally.

Those who are deported for becoming public charges clearly have not, by modern standards, engaged in conduct worthy of censure. The Government's suggestion [639] that the reason for their exclusion from § 202 (n) was an unarticulated feeling of Congress that it would be unfair to the "other country to deport such destitute persons without letting them retain their modicum of social security benefits" appears at best fanciful, especially since, by hypothesis, they are deportable because the conditions which led to their becoming public charges existed prior to entry.

The exclusion from the operation of § 202 (n) of aliens deported for failure to maintain nonimmigrant status rationally can be explained, in the context of the whole statute, only as evidencing that Congress considered that conduct less blameworthy. Certainly the Government's suggestion that Congress may have thought it unlikely that such persons would work sufficient time in covered employment to become eligible for Social Security benefits cannot be the reason for this exclusion. For frequently the very act which eventually results in the deportation of persons on that ground is the securing of private employment. Finally, it is impossible to reconcile the continuation of benefits to aliens who are deported for aiding other aliens to enter the country illegally, except upon the ground that Congress felt that their conduct was less reprehensible. Again the Government's suggestion that the reason might be Congress' belief that these aliens would not have worked in covered employment must be rejected. Five years after entry would be ample time within which to secure employment and qualify. Moreover the same five-year limitation applies to several of the 14 grounds of deportation for which aliens are cut off from benefits and the Government's argument would apply equally to them if that in fact was the congressional reason.

This appraisal of the distinctions drawn by Congress between various kinds of conduct impels the conclusion, beyond peradventure that the distinctions can be [640] understood only if the purpose of Congress was to strike at "the person or class of persons disqualified." The Court inveighs against invalidating a statute on "implication and vague conjecture." Rather I think the Court has strained to sustain the statute on "implication and vague conjecture," in holding that the congressional concern was "the activity or status from which the individual is barred." Today's decision sanctions the use of the spending power not to further the legitimate objectives of the Social Security program but to inflict hurt upon those who by their conduct have incurred the displeasure of Congress. The Framers ordained that even the worst of men should not be punished for their past acts or for any conduct without adherence to the procedural safeguards written into the Constitution. Today's decision is to me a regretful retreat from Lovett, Cummings and Garland.

Section 202 (n) imposes punishment in violation of the prohibition against ex post facto laws and without a judicial trial.^[26] I therefore dissent.

[1] Section 202 (n) provides as follows:

"(n) (1) If any individual is (after the date of enactment of this subsection) deported under paragraph (1), (2), (4), (5), (6), (7), (10), (11), (12), (14), (15), (16), (17), or (18) of section 241 (a) of the Immigration and Nationality Act, then, notwithstanding any other provisions of this title—

"(A) no monthly benefit under this section or section 223 [42 U. S. C. § 423, relating to "disability insurance benefits"] shall be paid to such individual, on the basis of his wages and self-employment income, for any month occurring (i) after the month in which the Secretary is notified by the Attorney General that such individual has been so deported, and (ii) before the month in which such individual is thereafter lawfully admitted to the United States for permanent residence,

"(B) if no benefit could be paid to such individual (or if no benefit could be paid to him if he were alive) for any month by reason of subparagraph (A), no monthly benefit under this section shall be paid, on the basis of his wages and self-employment income, for such month to any other person who is not a citizen of the United States and is outside the United States for any part of such month, and

"(C) no lump-sum death payment shall be made on the basis of such individual's wages and self-employment income if he dies (i) in or after the month in which such notice is received, and (ii) before the month in which he is thereafter lawfully admitted to the United States for permanent residence.

"Section 203 (b) and (c) of this Act shall not apply with respect to any such individual for any month for which no monthly benefit may be paid to him by reason of this paragraph.

"(2) As soon as practicable after the deportation of any individual under any of the paragraphs of section 241 (a) of the Immigration and Nationality Act enumerated in paragraph (1) in this subsection, the Attorney General shall notify the Secretary of such deportation."

The provisions of § 241 (a) of the Immigration and Nationality Act are summarized in notes 10, 13, post, pp. 618, 620.

[2] Under paragraph (1) (B) of § 202 (n) (see note 1, ante), appellee's wife, because of her residence here, has remained eligible for benefits payable to her as the wife of an insured individual. See § 202 (b), 53 Stat. 1364, as amended, 42 U. S. C. § 402 (b).

[3] Section 205 (g) provides as follows:

"(g) Any individual, after any final decision of the Board made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Board may allow. . . . As part of its answer the Board shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Board, with or without remanding the cause for a rehearing. The findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive . . . . The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions."

[4] In addition, eligibility for disability insurance benefits is of course subject to the further condition of the incurring of a disability as defined in the Act. § 223, 42 U. S. C. § 423. Secondary beneficiaries must meet the tests of family relationship to the wage earner set forth in the Act. § 202 (b)-(h), 42 U. S. C. § 402 (b)-(h).

[5] The Act does not provide for the termination of benefits of nonresident citizens, or of some aliens who leave the country voluntarily— although many nonresident aliens do lose their eligibility by virtue of the provisions of § 202 (t), 70 Stat. 835, as amended, 42 U. S. C. § 402 (t)—or of aliens deported pursuant to paragraphs 3, 8, 9, or 13 of the 18 paragraphs of § 241 (a) of the Immigration and Nationality Act. See note 13, post.

[6] Art. I, § 9, cl. 3:

"No bill of attainder or ex post facto law shall be passed."

Art. III, § 2, cl. 3:

"The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed . . . ."

Amend. VI:

"In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence."

[7] Appellee also adds, but hardly argues, the contention that he has been deprived of his rights under the First Amendment, since the adverse consequences stemmed from "mere past membership" in the Communist Party. This contention, which is no more than a collateral attack on appellee's deportation, is not open to him.

[8] See also Pierce v. Carskadon, 16 Wall. 234. A West Virginia statute providing that a nonresident who had suffered a judgment in an action commenced by attachment, but in which he had not been personally served and did not appear, could within one year petition the court for a reopening of the judgment and a trial on the merits, was amended in 1865 so as to condition that right on the taking of an exculpatory oath that the defendant had never supported the Confederacy. On the authority of Cummings and Garland, the amendment was invalidated.

[9] As prior decisions make clear, compare Ex parte Garland, supra, with Hawker v. New York, supra, the severity of a sanction is not determinative of its character as "punishment."

[10] Paragraphs (1), (2), and (10) of § 241 (a) relate to unlawful entry, or entry not complying with certain conditions; paragraphs (6) and (7) apply to "subversive" and related activities; the remainder of the included paragraphs are concerned with convictions of designated crimes, or the commission of acts related to them, such as narcotics addiction or prostitution.

[11] For example, under the House version termination of benefits of a deportee would also have terminated benefits paid to secondary beneficiaries based on the earning records of the deportee. The Conference proposal limited this effect to secondary beneficiaries who were nonresident aliens. See note 2, ante.

[12] Appellee also relies on the juxtaposition of the proposed § 108 and certain other provisions, some of which were enacted and some of which were not. This argument is too conjectural to warrant discussion. In addition, reliance is placed on a letter written to the Senate Finance Committee by appellant's predecessor in office, opposing the enactment of what is now § 202 (u) of the Act, 70 Stat. 838, 42 U. S. C. § 402 (u), on the ground that the section was "in the nature of a penalty and based on considerations foreign to the objectives" of the program. Social Security Amendments of 1955, Hearings before the Senate Committee on Finance, 84th Cong., 2d Sess., p. 1319. The Secretary went on to say that "present law recognizes only three narrowly limited exceptions [of which § 202 (n) is one] to the basic principle that benefits are paid without regard to the attitudes, opinions, behavior, or personal characteristics of the individual. . . ." It should be observed, however, that the Secretary did not speak of § 202 (n) as a penalty, as he did of the proposed § 202 (u). The latter provision is concededly penal, and applies only pursuant to a judgment of a court in a criminal case.

[13] They are: (1) persons institutionalized at public expense within five years after entry because of "mental disease, defect, or deficiency" not shown to have arisen subsequent to admission (§ 241 (a) (3)); (2) persons becoming a public charge within five years after entry from causes not shown to have arisen subsequent to admission § 241 (a) (8)); (3) persons admitted as nonimmigrants (see § 101 (a) (15), 66 Stat. 167, 8 U. S. C. § 1101 (a) (15)) who fail to maintain, or comply with the conditions of, such status (§ 241 (a) (9)); (4) persons knowingly and for gain inducing or aiding, prior to or within five years after entry, any other alien to enter or attempt to enter unlawfully (§ 241 (a) (13)).

[14] Were we to engage in speculation, it would not be difficult to conjecture that Congress may have been led to exclude these four grounds of deportation out of compassionate or de minimis considerations.

[15] Address entitled Bills of Attainder in 1787 and Today. Columbia Law Review dinner 1954, published in 1959 by the Emergency Civil Liberties Committee, under the title Congressional Investigations and Bills of Attainder.

[16] The broad sweep of the idea of punishment behind the concept of the bill of attainder was stated as follows by Irving Brant, op. cit., supra, note 1, 9-10:

"In 1794 the American people were in a state of excitement comparable to that which exists today. Supporters of the French Revolution had organized the Democratic Societies—blatantly adopting that subversive title. Then the Whisky Rebellion exploded in western Pennsylvania. The Democratic Societies were blamed. A motion censuring the Societies was introduced in the House of Representatives.

"There, in 1794, you had the basic division in American thought—on one side the doctrine of political liberty for everybody, with collective security resting on the capacity of the people for self-government; on the other side the doctrine that the people could not be trusted and political liberty must be restrained.

"James Madison challenged this latter doctrine. The investigative power of Congress over persons, he contended, was limited to inquiry into the conduct of individuals in the public service. `Opinions,' he said, `are not the subjects of legislation.' Start criticizing people for abuse of their reserved rights, and the censure might extend to freedom of speech and press. What would be the effect on the people thus condemned? Said Madison:

" `It is in vain to say that this indiscriminate censure is no punishment.. . . Is not this proposition, if voted, a bill of attainder?'

"Madison won his fight, not because he called the resolution a bill of attainder, but because it attainted too many men who were going to vote in the next election. The definition, however, was there—a bill of attainder—and the definition was given by the foremost American authority on the principles of liberty and order underlying our system of government."

[17] The three exceptions referred to were (1) § 202 (n); (2) Act of September 1, 1954, 68 Stat. 1142, 5 U. S. C. §§ 2281-2288; (3) Regulation of the Social Security Administration, 20 CFR § 403.409— denying dependent's benefits to a person found guilty of felonious homicide of the insured worker.

[18] Brant, op. cit., supra, note 1, states at p. 9:

"What were the framers aiming at when they forbade bills of attainder? They were, of course, guarding against the religious passions that disgraced Christianity in Europe. But American bills of attainder, just before 1787, were typically used by Revolutionary assemblies to rid the states of British Loyalists. By a curious coincidence, it was usually the Tory with a good farm who was sent into exile, and all too often it was somebody who wanted that farm who induced the legislature to attaint him. Patriotism could serve as a cloak for greed as easily as religion did in that Irish Parliament of James the Second.

"But consider a case in which nothing could be said against the motive. During the Revolution, Governor Patrick Henry induced the Virginia legislature to pass a bill of attainder condemning Josiah Phillips to death. He was a traitor, a murderer, a pirate and an outlaw. When ratification of the new Constitution came before the Virginia Convention, Henry inveighed against it because it contained no Bill of Rights. Edmund Randolph taunted him with his sponsorship of the Phillips bill of attainder. Henry then made the blunder of defending it. The bill was warranted, he said, because Phillips was no Socrates. That shocking defense of arbitrary condemnation may have produced the small margin by which the Constitution was ratified."

[19] The Alien Registration Act, 1940, 54 Stat. 673, made membership in an organization which advocates the overthrow of the Government of the United States by force or violence a ground for deportation even though the membership was terminated prior to the passage of that statute. See Harisiades v. Shaughnessy, 342 U. S. 580. Until the passage of the Internal Security Act of 1950, 64 Stat. 1006, 1008, it was necessary for the Government to prove in each case in which it sought to deport an alien because of membership in the Communist Party that that organization in fact advocated the violent overthrow of the Government. The 1950 Act expressly made deportable aliens who at the time of entry, or at any time thereafter were "members of or affiliated with . . . the Communist Party of the United States." See Galvan v. Press, 347 U. S. 522, 529.

[20] A comparable annuity was worth, at the time appellee's benefits were canceled, approximately $6,000. To date he has lost nearly $2,500 in benefits.

[21] The Court, recognizing that Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, strongly favor the conclusion that § 202 (n) was enacted with punitive intent, rejects the force of those precedents as drawing "heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and `the fierce passions which that struggle aroused.' " This seems to me to say that the provision of § 202 (n) which cuts off benefits from aliens deported for past Communist Party membership was not enacted in a similar atmosphere. Our judicial detachment from the realities of the national scene should not carry us so far. Our memory of the emotional climate stirred by the question of communism in the early 1950's cannot be so short.

[22] See H. R. Rep. No. 1698, 83d Cong., 2d Sess. 24-25.

[23] See S. Rep. No. 1987, 83d Cong., 2d Sess. 23; H. R. Conf. Rep. No. 2679, 83d Cong., 2d Sess. 4.

[24] See Court's opinion, ante, note 1.

[25] See the Court's opinion, ante, note 13.

[26] It is unnecessary for me to reach the question whether the statute also constitutes a bill of attainder.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT.

[620] Mr. Edward F. McClennen, with whom Mr. Jacob J. Kaplan was on the brief, for respondent.

[634] MR. JUSTICE CARDOZO delivered the opinion of the Court.

The Social Security Act (Act of August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C., c. 7, (Supp.)) is challenged once again.

In Steward Machine Co. v. Davis, decided this day, ante, p. 548, we have upheld the validity of Title IX of the act, imposing an excise upon employers of eight or more. In this case Titles VIII and II are the subject of attack. Title VIII lays another excise upon employers in addition to the one imposed by Title IX (though with different exemptions). It lays a special income tax upon employees to be deducted from their wages and paid by the employers. Title II provides for the payment of Old Age Benefits, and supplies the motive and occasion, in the view of the assailants of the statute, for [635] the levy of the taxes imposed by Title VIII. The plan of the two titles will now be summarized more fully.

Title VIII, as we have said, lays two different types of tax, an "income tax on employees," and "an excise tax on employers." The income tax on employees is measured by wages paid during the calendar year. § 801. The excise tax on the employer is to be paid "with respect to having individuals in his employ," and, like the tax on employees, is measured by wages. § 804. Neither tax is applicable to certain types of employment, such as agricultural labor, domestic service, service for the national or state governments, and service performed by persons who have attained the age of 65 years. § 811 (b). The two taxes are at the same rate. §§ 801, 804. For the years 1937 to 1939, inclusive, the rate for each tax is fixed at one per cent. Thereafter the rate increases 1/2 of 1 per cent every three years, until after December 31, 1948, the rate for each tax reaches 3 per cent. Ibid. In the computation of wages all remuneration is to be included except so much as is in excess of $3,000 during the calendar year affected. § 811 (a). The income tax on employees is to be collected by the employer, who is to deduct the amount from the wages "as and when paid." § 802 (a). He is indemnified against claims and demands of any person by reason of such payment. Ibid. The proceeds of both taxes are to be paid into the Treasury like internal-revenue taxes generally, and are not earmarked in any way. § 807 (a). There are penalties for non-payment. § 807 (c).

Title II has the caption "Federal Old-Age Benefits." The benefits are of two types, first, monthly pensions, and second, lump sum payments, the payments of the second class being relatively few and unimportant.

The first section of this title creates an account in the United States Treasury to be known as the "Old-Age [636] Reserve Account." § 201. No present appropriation, however, is made to that account. All that the statute does is to authorize appropriations annually thereafter, beginning with the fiscal year which ends June 30, 1937. How large they shall be is not known in advance. The "amount sufficient as an annual premium" to provide for the required payments is "to be determined on a reserve basis in accordance with accepted actuarial principles, and based upon such tables of mortality as the Secretary of the Treasury shall from time to time adopt, and upon an interest rate of 3 per centum per annum compounded annually." § 201 (a). Not a dollar goes into the Account by force of the challenged act alone, unaided by acts to follow.

Section 202 and later sections prescribe the form of benefits. The principal type is a monthly pension payable to a person after he has attained the age of 65. This benefit is available only to one who has worked for at least one day in each of at least five separate years since December 31, 1936, who has earned at least $2,000 since that date, and who is not then receiving wages "with respect to regular employment." §§ 202 (a), (d), 210 (c). The benefits are not to begin before January 1, 1942. § 202 (a). In no event are they to exceed $85 a month. § 202 (b). They are to be measured (subject to that limit) by a percentage of the wages, the percentage decreasing at stated intervals as the wages become higher. § 202 (a). In addition to the monthly benefits, provision is made in certain contingencies for "lump sum payments" of secondary importance. A summary by the Government of the four situations calling for such payments is printed in the margin.^[1]

[637] This suit is brought by a shareholder of the Edison Electric Illuminating Company of Boston, a Massachusetts corporation, to restrain the corporation from making the payments and deductions called for by the act, which is stated to be void under the Constitution of the United States. The bill tells us that the corporation has decided to obey the statute, that it has reached this decision in the face of the complainant's protests, and that it will make the payments and deductions unless restrained by a decree. The expected consequences are indicated substantially as follows: The deductions from the wages of the employees will produce unrest among them, and will be followed, it is predicted, by demands that wages be increased. If the exactions shall ultimately be held void, the company will have parted with moneys which as a practical matter it will be impossible to recover. Nothing is said in the bill about the promise of indemnity. The prediction is made also that serious consequences will ensue [638] if there is a submission to the excise. The corporation and its shareholders will suffer irreparable loss, and many thousands of dollars will be subtracted from the value of the shares. The prayer is for an injunction and for a declaration that the act is void.

The corporation appeared and answered without raising any issue of fact. Later the United States Commissioner of Internal Revenue and the United States Collector for the District of Massachusetts, petitioners in this court, were allowed to intervene. They moved to strike so much of the bill as has relation to the tax on employees, taking the ground that the employer, not being subject to tax under those provisions, may not challenge their validity, and that the complainant shareholder, whose rights are no greater than those of his corporation, has even less standing to be heard on such a question. The intervening defendants also filed an answer which restated the point raised in the motion to strike, and maintained the validity of Title VIII in all its parts. The District Court held that the tax upon employees was not properly at issue, and that the tax upon employers was constitutional. It thereupon denied the prayer for an injunction, and dismissed the bill. On appeal to the Circuit Court of Appeals for the First Circuit, the decree was reversed, one judge dissenting. 89 F. (2d) 393. The court held that Title II was void as an invasion of powers reserved by the Tenth Amendment to the states or to the people, and that Title II in collapsing carried Title VIII along with it. As an additional reason for invalidating the tax upon employers, the court held that it was not an excise as excises were understood when the Constitution was adopted. Cf. Davis v. Boston & Maine R. Co., 89 F. (2d) 368, decided the same day.

A petition for certiorari followed. It was filed by the intervening defendants, the Commissioner and the Collector, and brought two questions, and two only, to our [639] notice. We were asked to determine: (1) "whether the tax imposed upon employers by § 804 of the Social Security Act is within the power of Congress under the Constitution," and (2) "whether the validity of the tax imposed upon employees by § 801 of the Social Security Act is properly in issue in this case, and if it is, whether that tax is within the power of Congress under the Constitution." The defendant corporation gave notice to the Clerk that it joined in the petition, but it has taken no part in any subsequent proceedings. A writ of certiorari issued.

First. Questions as to the remedy invoked by the complainant confront us at the outset.

Was the conduct of the company in resolving to pay the taxes a legitimate exercise of the discretion of the directors? Has petitioner a standing to challenge that resolve in the absence of an adequate showing of irreparable injury? Does the acquiescence of the company in the equitable remedy affect the answer to those questions? Though power may still be ours to take such objections for ourselves, is acquiescence effective to rid us of the duty? Is duty modified still further by the attitude of the Government, its waiver of a defense under § 3224 of the Revised Statutes, its waiver of a defense that the legal remedy is adequate, its earnest request that we determine whether the law shall stand or fall? The writer of this opinion believes that the remedy is ill conceived, that in a controversy such as this a court must refuse to give equitable relief when a cause of action in equity is neither pleaded nor proved, and that the suit for an injunction should be dismissed upon that ground. He thinks this course should be followed in adherence to the general rule that constitutional questions are not to be determined in the absence of strict necessity. In that view he is supported by MR. JUSTICE BRANDEIS, MR. JUSTICE STONE and MR. JUSTICE ROBERTS. However, a majority of the [640] court have reached a different conclusion. They find in this case extraordinary features making it fitting in their judgment to determine whether the benefits and the taxes are valid or invalid. They distinguish Norman v. Consolidated Gas Co., 89 F. (2d) 619, recently decided by the Court of Appeals for the Second Circuit, on the ground that in that case, the remedy was challenged by the company and the Government at every stage of the proceeding, thus withdrawing from the court any marginal discretion. The ruling of the majority removes from the case the preliminary objection as to the nature of the remedy which we took of our own motion at the beginning of the argument. Under the compulsion of that ruling, the merits are now here.

Second. The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment.

Congress may spend money in aid of the "general welfare." Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law. [641] "When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress." United States v. Butler, supra, p. 67. Cf. Cincinnati Soap Co. v. United States, ante, p. 308; United States v. Realty Co., 163 U.S. 427, 440; Head Money Cases, 112 U.S. 580, 595. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the Nation. What is critical or urgent changes with the times.

The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from State to State, the hinterland now settled that in pioneer days gave an avenue of escape. Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 442. Spreading from State to State, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the Nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co., supra, has set the doubt at rest. But the ill is all one, or at least not greatly different, whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.

Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President's Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory [642] groups.^[2] Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance.^[3] A great mass of evidence was brought together supporting the policy which finds expression in the act. Among the relevant facts are these: The number of persons in the United States 65 years of age or over is increasing proportionately as well as absolutely. What is even more important the number of such persons unable to take care of themselves is growing at a threatening pace. More and more our population is becoming urban and industrial instead of rural and agricultural.^[4] The evidence is impressive that among industrial workers the younger men and women are preferred over the older.^[5] In times of retrenchment the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for reemployment. Statistics are in the brief. A few illustrations will be chosen from many there collected. In 1930, out of 224 American factories investigated, 71, or almost one third, had fixed maximum hiring age limits; in 4 plants the limit was under 40; in 41 it was under 46. In the other 153 plants there were no fixed limits, but in practice few were hired if they were over 50 years of age.^[6] With the loss of savings inevitable in periods of idleness, [643] the fate of workers over 65, when thrown out of work, is little less than desperate. A recent study of the Social Security Board informs us that "one-fifth of the aged in the United States were receiving old-age assistance, emergency relief, institutional care, employment under the works program, or some other form of aid from public or private funds; two-fifths to one-half were dependent on friends and relatives, one-eighth had some income from earnings; and possibly one-sixth had some savings or property. Approximately three out of four persons 65 or over were probably dependent wholly or partially on others for support."^[7] We summarize in the margin the results of other studies by state and national commissions.^[8] They point the same way.

[644] The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem.^[9] Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation. Steward Machine Co. v. Davis, supra. A system of old age pensions has special dangers of its own, if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.

Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom. Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government [645] may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago.^[10] When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

Third. Title II being valid, there is no occasion to inquire whether Title VIII would have to fall if Title II were set at naught.

The argument for the respondent is that the provisions of the two titles dovetail in such a way as to justify the conclusion that Congress would have been unwilling to pass one without the other. The argument for petitioners is that the tax moneys are not earmarked, and that Congress is at liberty to spend them as it will. The usual separability clause is embodied in the act. § 1103.

We find it unnecessary to make a choice between the arguments, and so leave the question open.

Fourth. The tax upon employers is a valid excise or duty upon the relation of employment.

As to this we need not add to our opinion in Steward Machine Co. v. Davis, supra, where we considered a like question in respect of Title IX.

[646] Fifth. The tax is not invalid as a result of its exemptions.

Here again the opinion in Steward Machine Co. v. Davis, supra, says all that need be said.

Sixth. The decree of the Court of Appeals should be reversed and that of the District Court affirmed.

Reversed.

MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER are of opinion that the provisions of the act here challenged are repugnant to the Tenth Amendment, and that the decree of the Circuit Court of Appeals should be affirmed.

[1] (1) If through an administrative error or delay a person who is receiving a monthly pension dies before he receives the correct amount, the amount which should have been paid to him is paid in a lump sum to his estate [§ 203 (c)].

(2) If a person who has earned wages in each of at least five separate years since December 31, 1936, and who has earned in that period more than $2,000, dies after attaining the age of 65, but before he has received in monthly pensions an amount equal to 3 1/2 percent of the "wages" paid to him between January 1, 1937, and the time he reaches 65, then there is paid in a lump sum to his estate the difference between said 3 1/2 percent and the total amount paid to him during his life as monthly pensions [§ 203 (b)].

(3) If a person who has earned wages since December 31, 1936, dies before attaining the age of 65, then there is paid to his estate 3 1/2 percent of the "wages" paid to him between January 1, 1937, and his death [§ 203 (a)].

(4) If a person has, since December 31, 1936, earned wages in employment covered by Title II, but has attained the age of 65 either without working for at least one day in each of 5 separate years since 1936, or without earning at least $2,000 between January 1, 1937, and the time he attains 65, then there is paid to him [or to his estate, § 204 (b)], a lump sum equal to 3 1/2 percent of the "wages" paid to him between January 1, 1937, and the time he attained 65 [§ 204 (a)].

[2] Report to the President of the Committee on Economic Security, 1935.

[3] Hearings before the House Committee on Ways and Means on H.R. 4120, 74th Congress, 1st session; Hearings before the Senate Committee on Finance on S. 1130, 74th Congress, 1st Session.

[4] See Report of the Committee on Recent Social Trends, 1932, vol. 1, pp. 8, 502; Thompson and Whelpton, Population Trends in the United States, pp. 18, 19.

[5] See the authorities collected at pp. 54-62 of the Government's brief.

[6] Hiring and Separation Methods in American Industry, 35 Monthly Labor Review, pp. 1005, 1009.

[7] Economic Insecurity in Old Age (Social Security Board, 1937), p. 15.

[8] The Senate Committee estimated, when investigating the present act, that over one half of the people in the United States over 65 years of age are dependent upon others for support. Senate Report, No. 628, 74th Congress, 1st Session, p. 4. A similar estimate was made in the Report to the President of the Committee on Economic Security, 1935, p. 24.

A Report of the Pennsylvania Commission on Old Age Pensions made in 1919 (p. 108) after a study of 16,281 persons and interviews with more than 3,500 persons 65 years and over showed two fifths with no income but wages and one fourth supported by children; 1.5 per cent had savings and 11.8 per cent had property.

A report on old age pensions by the Massachusetts Commission on Pensions (Senate No. 5, 1925, pp. 41, 52) showed that in 1924 two thirds of those above 65 had, alone or with a spouse, less than $5,000 of property, and one fourth had none. Two thirds of those with less than $5,000 and income of less than $1,000 were dependent in whole or in part on others for support.

A report of the New York State Commission made in 1930 (Legis. Doc. No. 67, 1930, p. 39) showed a condition of total dependency as to 58 per cent of those 65 and over, and 62 per cent of those 70 and over.

The national Government has found in connection with grants to states for old age assistance under another title of the Social Security Act (Title I) that in February, 1937, 38.8 per cent of all persons over 65 in Colorado received public assistance; in Oklahoma the percentage was 44.1, and in Texas 37.5. In 10 states out of 40 with plans approved by the Social Security Board more than 25 per cent of those over 65 could meet the residence requirements and qualify under a means test and were actually receiving public aid. Economic Insecurity in Old Age, supra, p. 15.

[9] Economic Insecurity in Old Age, supra, chap. VI, p. 184.

[10] IV Channing, History of the United States, p. 404 (South Carolina Nullification); 8 Adams, History of the United States (New England Nullification and the Hartford Convention).

[14] Sri Srinivasan, for Petitioner.

John G. Jacobs, Chicago, IL, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Acting Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Eric J. Feigin, Assistant to the Solicitor General, Mark B. Stern, Henry C. Whitaker, Attorneys, Department of Justice, Washington, DC, for Petitioner.

[15] John G. Jacobs, Counsel of Record, Jacobs Kolton Chartered, Chicago, IL, Gregory A. Beck, Allison M. Zieve, Public Citizen Litigation Group, Washington, DC, for Respondent.

Justice SCALIA delivered the opinion of the Court.

The Little Tucker Act, 28 U.S.C. § 1346(a)(2), provides that "[t]he district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims, of ... [a]ny ... civil action or claim against the United States, not exceeding $10,000 in amount, founded ... upon ... any Act of Congress." We consider whether the Little Tucker Act waives the sovereign immunity of the United States with respect to damages actions for violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq.

I

The Fair Credit Reporting Act has as one of its purposes to "protect consumer privacy." Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 52, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007); see 84 Stat. 1128, 15 U.S.C. § 1681. To that end, FCRA provides, among other things, that "no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." § 1681c(g)(1) (emphasis added). The Act defines "person" as "any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity." § 1681a(b).

FCRA imposes civil liability for willful or negligent noncompliance with its requirements: "Any person who willfully fails to comply" with the Act "with respect to any consumer," "is liable to that consumer" for actual damages or damages "of not less than $100 and not more than $1,000," as well as punitive damages, attorney's fees, and costs. § 1681n(a); see also § 1681o (civil liability for negligent noncompliance). The Act includes a jurisdictional provision, which provides that "[a]n action to enforce any liability created under this subchapter may be brought in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction" within the earlier of "2 years after the date of discovery by the plaintiff of the violation that is the basis for such liability" or "5 years after the date on which the violation that is the basis for such liability occurs." § 1681p.

Respondent James X. Bormes is an attorney who filed a putative class action against the United States in the United States District Court for the Northern District of Illinois seeking damages under FCRA. Bormes alleged that he paid a $350 federal-court filing fee for a client using his own credit card on Pay.gov, an Internet-based system used by federal courts and dozens of federal agencies to process online payment transactions. According to Bormes, his Pay.gov electronic receipt included the last four digits of his credit card, in addition to its expiration date, in willful violation of § 1681c(g)(1). He claimed that he and thousands of similarly situated persons were entitled to recover damages under § 1681n, and asserted jurisdiction under § 1681p, as well as under the Little Tucker Act, 28 U.S.C. § 1346(a)(2).

The District Court dismissed the suit, holding that FCRA does not contain the [16] explicit waiver of sovereign immunity necessary to permit a damages suit against the United States. 638 F.Supp.2d 958, 962 (N.D.Ill.2009). The court did not address the Little Tucker Act as an asserted basis for jurisdiction. Respondent appealed to the Federal Circuit, which has exclusive jurisdiction "of an appeal from a final decision of a district court of the United States... if the jurisdiction of that court was based, in whole or in part, on" the Little Tucker Act. 28 U.S.C. § 1295(a)(2). Arguing that the Little Tucker Act's jurisdictional grant did not apply to respondent's suit, the Government moved to transfer the appeal to the Seventh Circuit.

The Federal Circuit denied the transfer motion and went on to vacate the District Court's decision. Without deciding whether FCRA itself contained the requisite waiver of sovereign immunity, the court held that the Little Tucker Act provided the Government's consent to suit for violation of FCRA. The court explained that the Little Tucker Act applied because FCRA "`can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" 626 F.3d 574, 578 (2010) (quoting United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003)). This "fair interpretation" rule, the court explained, "demands a showing `demonstrably lower' than the initial waiver of sovereign immunity" contained in the Little Tucker Act itself. 626 F.3d, at 578. The court reasoned that FCRA satisfied the "fair interpretation" rule because its damages provision applies to "any person" who willfully violates its requirements, 15 U.S.C. § 1681n(a), and the Act elsewhere defines "person" to include "any ... government," § 1681a(b). 626 F.3d, at 580. The Federal Circuit remanded to the District Court for further proceedings. We granted certiorari, 565 U.S. ___, 132 S.Ct. 1088, 181 L.Ed.2d 806 (2012).

II

Sovereign immunity shields the United States from suit absent a consent to be sued that is "`unequivocally expressed.'" United States v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992) (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); some internal quotation marks omitted). The Little Tucker Act is one statute that unequivocally provides the Federal Government's consent to suit for certain money-damages claims. United States v. Mitchell, 463 U.S. 206, 216, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (Mitchell II). Subject to exceptions not relevant here, the Little Tucker Act provides that "district courts shall have original jurisdiction, concurrent with the United States Court of Federal Claims," of a "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." 28 U.S.C. § 1346(a)(2).^[1] The Little Tucker Act and its companion statute, the Tucker Act, § 1491(a)(1),^[2] do not themselves "creat[e] [17] substantive rights," but "are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law." United States v. Navajo Nation, 556 U.S. 287, 290, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009).

Bormes argues that whether or not FCRA itself unambiguously waives sovereign immunity, the Little Tucker Act authorizes his FCRA damages claim against the United States. The question, then, is whether a damages claim under FCRA "falls within the terms of the Tucker Act," so that "the United States has presumptively consented to suit." Mitchell II, supra, at 216, 103 S.Ct. 2961. It does not. Where, as in FCRA, a statute contains its own self-executing remedial scheme, we look only to that statute to determine whether Congress intended to subject the United States to damages liability.

A

The Court of Claims was established, and the Tucker Act enacted, to open a judicial avenue for certain monetary claims against the United States. Before the creation of the Court of Claims in 1855, see Act of Feb. 24, 1855 (1855 Act), ch. 122, § 1, 10 Stat. 612, it was not uncommon for statutes to impose monetary obligations on the United States without specifying a means of judicial enforcement.^[3] As a result, claimants routinely petitioned Congress for private bills to recover money owed by the Federal Government. See Mitchell II, supra, at 212, 103 S.Ct. 2961 (citing P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 98 (2d ed.1973)). As this individualized legislative process became increasingly burdensome for Congress, the Court of Claims was created "to relieve the pressure on Congress caused by the volume of private bills." Glidden Co. v. Zdanok, 370 U.S. 530, 552, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion). The 1855 Act authorized the Court of Claims to hear claims against the United States "founded upon any law of Congress," § 1, 10 Stat. 612, and thus allowed claimants to sue the Federal Government for monetary relief premised on other sources of law. (Specialized legislation remained necessary to authorize the payments approved by the Court of Claims until 1863, when Congress empowered the court to enter final judgments. See Act of Mar. 3, 1863 (1863 Act), ch. 92, 12 Stat. 765; Mitchell II, supra, at 212-214, 103 S.Ct. 2961 (recounting the history of the Court of Claims)).

Enacted in 1887, the Tucker Act was the successor statute to the 1855 and 1863 Acts and replaced most of their provisions. [18] See Act of Mar. 3, 1887 (1887 Act), ch. 359, 24 Stat. 505; Mitchell II, supra, at 213-214, 103 S.Ct. 2961. Like the 1855 Act before it, the Tucker Act provided the Federal Government's consent to suit in the Court of Claims for claims "founded upon ... any law of Congress." 1887 Act § 1, 24 Stat. 505. Section 2 of the 1887 Act created concurrent jurisdiction in the district courts for claims of up to $1,000. The Tucker Act's jurisdictional grant, and accompanying immunity waiver, supplied the missing ingredient for an action against the United States for the breach of monetary obligations not otherwise judicially enforceable.^[4]

B

The Tucker Act is displaced, however, when a law assertedly imposing monetary liability on the United States contains its own judicial remedies. In that event, the specific remedial scheme establishes the exclusive framework for the liability Congress created under the statute. Because a "precisely drawn, detailed statute pre-empts more general remedies," Hinck v. United States, 550 U.S. 501, 506, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (quoting EC Term of Years Trust v. United States, 550 U.S. 429, 434, 127 S.Ct. 1763, 167 L.Ed.2d 729 (2007); internal quotation marks omitted), FCRA's self-executing remedial scheme supersedes the gap-filling role of the Tucker Act.

We have long recognized that an additional remedy in the Court of Claims is foreclosed when it contradicts the limits of a precise remedial scheme. In Nichols v. United States, 7 Wall. 122, 131, 19 L.Ed. 125 (1869), the issue was whether the 1855 Act authorized suit in the Court of Claims for improper assessment of duties on imported liquor that had already been paid without protest. The Court held that it did not. The revenue laws already provided a remedy: An aggrieved merchant could sue to recover the tax, but only after paying the duty under protest. Act of Feb. 26, 1845, ch. 22, 5 Stat. 727. The Court rejected the supposition that "Congress, after having carefully constructed a revenue system, with ample provisions to redress wrong, intended to give to the taxpayer and importer a further and different remedy." 7 Wall., at 131. Permitting suit under the 1855 Act, the Court concluded, would frustrate congressional intent with respect to the specific remedial scheme already in place. The 1855 Act was confined to a gap-filling role. As we said in a later case, "the general laws which govern the Court of Claims may be resorted to for relief" only because "[n]o special remedy has been provided" to enforce a payment to which the claimant was entitled. United States v. Kaufman, 96 U.S. 567, 569, 24 L.Ed. 792 (1878). Where the "liability is one created by statute," the "special remedy provided by the same statute is exclusive." Ibid.

Our more recent cases have consistently held that statutory schemes with their own remedial framework exclude alternative relief under the general terms of the Tucker Act. See, e.g., Hinck, supra; United States v. Fausto, 484 U.S. 439, 108 S.Ct. 668, 98 L.Ed.2d 830 (1988); United States v. Erika, Inc., 456 U.S. 201, 102 S.Ct. 1650, 72 L.Ed.2d 12 (1982). Respondent contends that in each of those cases Congress [19] had unambiguously demonstrated its intent to foreclose additional review by the Court of Federal Claims — whereas here, no similar intent to preclude Tucker Act jurisdiction is apparent. See Brief for Respondent 27-28. But our precedents collectively stand for a more basic proposition: Where a specific statutory scheme provides the accoutrements of a judicial action, the metes and bounds of the liability Congress intended to create can only be divined from the text of the statute itself.^[5]

In Hinck, for example, we held that the Tax Court provides the exclusive forum for suits under 26 U.S.C. § 6404(h), which authorizes judicial review of the Secretary's decision not to abate interest under § 6404(e)(1). We relied on "our past recognition that when Congress enacts a specific remedy when no remedy was previously recognized ... the remedy provided is generally regarded as exclusive." 550 U.S., at 506, 127 S.Ct. 2011. Section 6404(h), we concluded, "fits the bill": it "provides a forum for adjudication, a limited class of potential plaintiffs, a statute of limitations, a standard of review, and authorization for judicial relief." Ibid. It did not matter that Congress "fail[ed] explicitly to define the Tax Court's jurisdiction as exclusive." Ibid. We found it "quite plain that the terms of § 6404(h) — a `precisely drawn, detailed statute' filling a perceived hole in the law — control all requests for review of § 6404(e)(1) determinations." Ibid.

Like § 6404(h), FCRA creates a detailed remedial scheme. Its provisions "set out a carefully circumscribed, time-limited, plaintiff-specific" cause of action, and "also precisely define the appropriate forum." Id., at 507, 127 S.Ct. 2011. It authorizes aggrieved consumers to hold "any person" who "willfully" or "negligent[ly]" fails to comply with the Act's requirements liable for specified damages. 15 U.S.C. §§ 1681n(a), 1681o. Claims to enforce liability must be brought within a specified limitations period, § 1681p, and jurisdiction will lie "in any appropriate United States district court, without regard to the amount in controversy, or in any other court of competent jurisdiction." Ibid. Without resort to the Tucker Act, FCRA enables claimants to pursue in court the monetary relief contemplated by the statute.

Plaintiffs cannot, therefore, mix and match FCRA's provisions with the Little Tucker Act's immunity waiver to create an action against the United States. Since FCRA is a detailed remedial scheme, only its own text can determine whether the damages liability Congress crafted extends to the Federal Government. To hold otherwise — to permit plaintiffs to remedy the absence of a waiver of sovereign immunity in specific, detailed statutes by pleading general Tucker Act jurisdiction — would transform the sovereign-immunity landscape.

The Federal Circuit was therefore wrong to conclude that the Tucker [20] Act justified applying a "less stringent" sovereign-immunity analysis to FCRA than our cases require. 626 F.3d, at 582. It distorted our case law in applying to FCRA the immunity-waiver standard we expressed in White Mountain Apache Tribe, 537 U.S., at 472, 123 S.Ct. 1126: whether the statute "`can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.'" 626 F.3d, at 578. That is the test for determining whether a statute that imposes an obligation but does not provide the elements of a cause of action qualifies for suit under the Tucker Act — more specifically, whether the failure to perform an obligation undoubtedly imposed on the Federal Government creates a right to monetary relief. See White Mountain Apache Tribe, supra; Mitchell II, 463 U.S. 206, 103 S.Ct. 2961, 77 L.Ed.2d 580. That test is not relevant when a "mandate of compensation" is contained in a statute that provides a detailed judicial remedy against those who are subject to its requirements. FCRA is such a statute. By using the "fair interpretation" test to determine whether FCRA's civil liability provisions apply to the United States, the Federal Circuit directed the test to a purpose for which it was not designed and leapfrogged the threshold concern that the Tucker Act cannot be superimposed on an existing remedial scheme.

* * *

We do not decide here whether FCRA itself waives the Federal Government's immunity to damages actions under § 1681n. That question is for the Seventh Circuit to consider once this case is transferred to it on remand. But whether or not FCRA contains the necessary waiver of immunity, any attempt to append a Tucker Act remedy to the statute's existing remedial scheme interferes with its intended scope of liability.

The judgment of the Court of Appeals is vacated, and the case remanded with instructions to transfer the case to the United States Court of Appeals for the Seventh Circuit for further proceedings consistent with this opinion.

It is so ordered.

[1] It is undisputed that this class action satisfied the Little Tucker Act's amount-in-controversy limitation. We have held that to require only that the "claims of individual members of the clas[s] do not exceed $10,000." United States v. Will, 449 U.S. 200, 211, n. 10, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980).

[2] Whereas the Little Tucker Act creates jurisdiction in the district courts concurrent with the Court of Federal Claims for covered claims of $10,000 or less, the Tucker Act assigns jurisdiction to the Court of Federal Claims regardless of monetary amount. As relevant here, the scope of the two statutes is otherwise the same. The third statute in the Tucker Act trio, the Indian Tucker Act, 28 U.S.C. § 1505, "confers a like waiver for Indian tribal claims that `otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe.'" United States v. White Mountain Apache Tribe, 537 U.S. 465, 472, 123 S.Ct. 1126, 155 L.Ed.2d 40 (2003) (quoting § 1505).

[3] For example, the Act of March 30, 1814, provided that every noncommissioned U.S. army officer who "may be captured by the enemy, shall be entitled to receive during his captivity ... the same pay, subsistence, and allowance to which he may be entitled whilst in the actual service of the United States." § 14, 3 Stat. 115, repealed in 1962 by Pub.L. 87-649, § 14, 76 Stat. 498. The 1814 Act clearly "command[ed] the payment of a specified amount of money by the United States," Bowen v. Massachusetts, 487 U.S. 879, 923, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (SCALIA, J., dissenting), but did not designate a means of judicial relief in the event the Government failed to pay.

[4] For purposes of this case, the current versions of the Tucker Act and Little Tucker Act resemble the 1887 Act. Compare 28 U.S.C. § 1491(a)(1) (permitting suits "founded ... upon ... any Act of Congress") with Tucker Act § 1, 24 Stat. 505 (permitting suits "founded upon ... any law of Congress, except for pensions"). The prior functions of the Court of Claims are now divided between the Court of Federal Claims at the trial level and the Federal Circuit at the appellate.

[5] We therefore need not resolve the parties' disagreement about whether certain inconsistencies between the Little Tucker Act and FCRA can be reconciled. Compare 28 U.S.C. § 1346(a)(2) (no claims in district court "exceeding $10,000 in amount") with 15 U.S.C. § 1681p (claims may be brought in district court "without regard to the amount in controversy"); compare 28 U.S.C. § 2501 (claims must be filed in the Court of Federal Claims within six years of accrual) with 15 U.S.C. § 1681p (claims under FCRA must be filed within the earlier of two years after discovery or five years after the alleged violation). Reconcilable or not, FCRA governs. The Government also contends that the Tucker Act does not apply because §§ 1681n and 1681o sound in tort. We do not decide the merits of that alternative argument.

495 U.S. 33 (1990)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

[36] H. Bartow Farr III argued the cause for petitioners. With him on the briefs were William Webster, Attorney General of Missouri, James B. Deutsch, Deputy Attorney General, Michael J. Fields, Assistant Attorney General, and David R. Boyd.

Allen R. Snyder argued the cause for respondents. With him on the brief for respondents Kalima Jenkins et al. were David S. Tatel, Walter A. Smith, Jr., Patricia A. Brannan, Shirley W. Keeler, Arthur A. Benson II, James S. Liebman, Julius L. Chambers, James M. Nabrit III, Theodore M. Shaw, and Norman J. Chachkin. Michael D. Gordon and Lawrence A. Poltrock filed a brief for respondent American Federation of Teachers, Local 691.^[1]

[37] JUSTICE WHITE delivered the opinion of the Court.

The United States District Court for the Western District of Missouri imposed an increase in the property taxes levied by the Kansas City, Missouri, School District (KCMSD) to ensure funding for the desegregation of KCMSD's public schools. We granted certiorari to consider the State of Missouri's argument that the District Court lacked the power to raise local property taxes. For the reasons given below, we hold that the District Court abused its discretion in imposing the tax increase. We also hold, however, that the modifications of the District Court's order made by the Court of Appeals do satisfy equitable and constitutional principles governing the District Court's power.

I

In 1977, KCMSD and a group of KCMSD students filed a complaint alleging that the State of Missouri and surrounding school districts had operated a segregated public school system in the Kansas City metropolitan area.^[2] The District Court realigned KCMSD as a party defendant, School Dist. of Kansas City v. Missouri, 460 F. Supp. 421 (WD Mo. 1978), and KCMSD filed a cross-claim against the State, seeking indemnification for any liability that might be imposed on KCMSD for intradistrict segregation.^[3] After a lengthy trial, the District Court found that KCMSD and the State had operated a segregated school system within the KCMSD. Jenkins v. Missouri, 593 F. Supp. 1485 (1984).^[4]

[38] The District Court thereafter issued an order detailing the remedies necessary to eliminate the vestiges of segregation and the financing necessary to implement those remedies. Jenkins v. Missouri, 639 F. Supp. 19 (1985).^[5] The District Court originally estimated the total cost of the desegregation remedy to be almost $88 million over three years, of which it expected the State to pay $67,592,072 and KCMSD to pay $20,140,472. Id., at 43-44. The court concluded, however, that several provisions of Missouri law would prevent KCMSD from being able to pay its share of the obligation. Id., at 44. The Missouri Constitution limits local property taxes to $1.25 per $100 of assessed valuation unless a majority of the voters in the district approve a higher levy, up to $3.25 per $100; the levy may be raised above $3.25 per $100 only if two-thirds of the voters agree. Mo. Const., Art. X, §§ 11(b),(c).^[6] The "Hancock Amendment" requires property tax rates to be rolled back when property is assessed at a higher valuation to ensure that taxes will not be increased solely as a result of reassessments. Mo. Const., Art. X, [39] § 22(a); Mo. Rev. Stat. § 137.073.2 (1986). The Hancock Amendment thus prevents KCMSD from obtaining any revenue increase as a result of increases in the assessed valuation of real property. "Proposition C" allocates one cent of every dollar raised by the state sales tax to a schools trust fund and requires school districts to reduce property taxes by an amount equal to 50% of the previous year's sales tax receipts in the district. Mo. Rev. Stat. § 164.013.1 (Supp. 1988). However, the trust fund is allocated according to a formula that does not compensate KCMSD for the amount lost in property tax revenues, and the effect of Proposition C is to divert nearly half of the sales taxes collected in KCMSD to other parts of the State.

The District Court believed that it had the power to order a tax increase to ensure adequate funding of the desegregation plan, but it hesitated to take this step. It chose instead to enjoin the effect of the Proposition C rollback to allow KCMSD to raise an additional $4 million for the coming fiscal year. The court ordered KCMSD to submit to the voters a proposal for an increase in taxes sufficient to pay for its share of the desegregation remedy in following years. Jenkins v. Missouri, 639 F. Supp., at 45.

The Court of Appeals for the Eighth Circuit affirmed the District Court's findings of liability and remedial order in most respects. Jenkins v. Missouri, 807 F. 2d 657 (1986) (in banc). The Court of Appeals agreed with the State, however, that the District Court had failed to explain adequately why it had imposed most of the cost of the desegregation plan on the State. Id., at 684, 685. The Eighth Circuit ordered the District Court to divide the cost equally between the State and KCMSD. Id., at 685. We denied certiorari. Kansas City, Missouri, School Dist. v. Missouri, 484 U. S. 816 (1987).

Proceedings before the District Court continued during the appeal. In its original remedial order, the District Court had directed KCMSD to prepare a study addressing the usefulness [40] of "magnet schools" to promote desegregation.^[7]Jenkins v. Missouri, supra, at 34-35. A year later, the District Court approved KCMSD's proposal to operate six magnet schools during the 1986-1987 school year.^[8] The court again faced the problem of funding, for KCMSD's efforts to persuade the voters to approve a tax increase had failed, as had its efforts to seek funds from the Kansas City Council and the state legislature. Again hesitating to impose a tax increase itself, the court continued its injunction against the Proposition C rollback to enable KCMSD to raise an additional $6.5 million. App. 138-142.

In November 1986, the District Court endorsed a marked expansion of the magnet school program. It adopted in substance a KCMSD proposal that every high school, every middle school, and half of the elementary schools in KCMSD become magnet schools by the 1991-1992 school year. It also approved the $142,736,025 budget proposed by KCMSD for implementation of the magnet school plan, as well as the expenditure of $52,858,301 for additional capital improvements. App. to Pet. for Cert. 120a-124a.

The District Court next considered, as the Court of Appeals had directed, how to shift the cost of desegregation to KCMSD. The District Court concluded that it would be "clearly inequitable" to require the population of KCMSD to pay half of the desegregation cost, and that "even with Court help it would be very difficult for the KCMSD to fund more than 25% of the costs of the entire remedial plan." Id., at 112a. The court reasoned that the State should pay for most of the desegregation cost under the principle that "the person [41] who starts the fire has more responsibility for the damages caused than the person who fails to put it out,' " id. at 111a, and that apportionment of damages between the State and KCMSD according to fault was supported by the doctrine of comparative fault in tort, which had been adopted by the Missouri Supreme Court in Gustafson v. Benda, 661 S. W. 2d 11 (1983). The District Court then held that the State and KCMSD were 75% and 25% at fault, respectively, and ordered them to share the cost of the desegregation remedy in that proportion. To ensure complete funding of the remedy, the court also held the two tortfeasors jointly and severally liable for the cost of the plan. App. to Pet. for Cert. 113a.

Three months later, the District Court adopted a plan requiring $187,450,334 in further capital improvements. 672 F. Supp. 400, 408 (WD Mo. 1987). By then it was clear that KCMSD would lack the resources to pay for its 25% share of the desegregation cost. KCMSD requested that the District Court order the State to pay for any amount that KCMSD could not meet. The District Court declined to impose a greater share of the cost on the State, but it accepted that KCMSD had "exhausted all available means of raising additional revenue." Id., at 411. Finding itself with "no choice but to exercise its broad equitable powers and enter a judgment that will enable the KCMSD to raise its share of the cost of the plan," ibid., and believing that the "United States Supreme Court has stated that a tax may be increased if `necessary to raise funds adequate to . . . operate and maintain without racial discrimination a public school system,' " id., at 412 (quoting Griffin v. Prince Edward County School Bd., 377 U. S. 218, 233 (1964)), the court ordered the KCMSD property tax levy raised from $2.05 to $4.00 per $100 of assessed valuation through the 1991-1992 fiscal year. 672 F. Supp., at 412-413.^[9] KCMSD was also directed to issue $150 [42] million in capital improvement bonds. Id., at 413. A subsequent order directed that the revenues generated by the property tax increase be used to retire the capital improvement bonds. App. to Pet. for Cert. 63a.

The State appealed, challenging the scope of the desegregation remedy, the allocation of the cost between the State and KCMSD, and the tax increase. A group of local taxpayers (Clark Group) and Jackson County, Missouri, also appealed from an order of the District Court denying their applications to intervene as of right. A panel of the Eighth Circuit affirmed in part and reversed in part. 855 F. 2d 1295 (1988). With respect to the would-be intervenors, the Court of Appeals upheld the denial of intervention. Id., at 1316-1317. The scope of the desegregation order was also upheld against all the State's objections, id., at 1301-1307, as was the allocation of costs, id., at 1307-1308.

Turning to the property tax increase, the Court of Appeals rejected the State's argument that a federal court lacks the judicial power to order a tax increase. The Court of Appeals agreed with the District Court that Griffin v. Prince Edward County School Bd., supra, at 233, had established the District Court's authority to order county officials to levy taxes.^[10] Accepting also the District Court's conclusion that state law prevented KCMSD from raising funds sufficient to implement the desegregation remedy, the Court of Appeals held that such state-law limitations must fall to the command of the Constitution. 855 F. 2d, at 1313.

[43] Although the Court of Appeals thus "affirm[ed] the actions that the [District] [C]ourt has taken to this point," id., at 1314, it agreed with the State that principles of federal/state comity required the District Court to use "minimally obtrusive methods to remedy constitutional violations." Ibid. The Court of Appeals thus required that in the future, the District Court should not set the property tax rate itself but should authorize KCMSD to submit a levy to the state tax collection authorities and should enjoin the operation of state laws hindering KCMSD from adequately funding the remedy.^[11] The Court of Appeals reasoned that permitting the school board to set the levy itself would minimize disruption of state laws and processes and would ensure maximum consideration of the views of state and local officials. Ibid.^[12]

The judgment of the Court of Appeals was entered on August 19, 1988. On September 16, 1988, the State filed with the Court of Appeals a document styled "State Appellants' Petition for Rehearing En Banc." App. 489-502. Jackson County also filed a "Petition . . . for Rehearing by Court En Banc," id., at 458-469, and Clark Group filed a "Petition for Rehearing En Banc with Suggestions in Support." Id., at 470-488. On October 14, 1988, the Court of Appeals denied the petitions with an order stating as follows: "There are now three petitions for rehearing en banc pending before the Court. It is hereby ordered that all petitions for rehearing [44] en banc are denied." App. to Pet. for Cert. 53a. The mandate of the Court of Appeals issued on October 14.

On December 31, 1988, 78 days after the issuance of the order denying rehearing and 134 days after the entry of the Court of Appeals' judgment, Jackson County presented to this Court an application for extension of time in which to file a petition for certiorari.^[13] The Clerk of this Court returned the application to Jackson County as untimely. App. 503. According to the Clerk, the 90-day period in which Jackson County could petition for certiorari began to run on August 19, 1988, and expired on November 17, 1988. The Clerk informed Jackson County that although the timely filing of a "petition for rehearing" with the Court of Appeals tolls the running of the 90-day period, the filing of a "petition for rehearing en banc" does not toll the time.

On January 10, 1989, the Clerk of the Eighth Circuit issued an order amending the order of October 14, 1988. The amended order stated:

"This Court's mandate which was issued on October 14, 1988, is hereby recalled.

"There are three (3) petitions for rehearing with suggestions for rehearing en banc pending before the Court. It is hereby ordered that the petitions for rehearing and the petitions for rehearing with suggestions for rehearing en banc are denied.

"This order is entered nunc pro tunc effective October 14, 1988. The Court's mandate shall now issue forthwith." Id., at 513 (emphasis added).

[45] The State, Jackson County, and Clark Group filed petitions for certiorari within 90 days of the October 14, 1988, order. The State's petition argued that the remedies imposed by the District Court were excessive in scope and that the property tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We denied the petitions of Jackson County and Clark Group. 490 U. S. 1034 (1989). We granted the State's petition, limited to the question of the property tax increase, but we requested the parties to address whether the petition was timely filed. 490 U. S. 1034 (1989).

II

We deal first with the question of our own jurisdiction. Title 28 U. S. C. § 2101(c) requires that a petition for certiorari in a civil case be filed within 90 days of the entry of the judgment below. This 90-day limit is mandatory and jurisdictional. We have no authority to extend the period for filing except as Congress permits. Unless the State's petition was filed within 90 days of the entry of the Court of Appeals' judgment, we must dismiss the petition.

Since Department of Banking of Nebraska v. Pink, 317 U. S. 264 (1942), it has been the consistent practice of the Court to treat petitions for rehearing timely presented to the Courts of Appeals as tolling the start of the period in which a petition for certiorari must be sought until rehearing is denied or a new judgment is entered on the rehearing.^[14] As [46] was explained in Pink, "[a] timely petition for rehearing . . . operates to suspend the finality of the . . . court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties." Id., at 266. To put the matter another way, while the petition for rehearing is pending, there is no "judgment" to be reviewed. Cf. Zimmern v. United States, 298 U. S. 167, 169 (1936); Leishman v. Associated Wholesale Electric Co., 318 U. S. 203, 205 (1943).

But as respondents point out, it has also been our consistent practice to treat suggestions for rehearing in banc presented to the United States Courts of Appeals that do not also include petitions for rehearing by the panel as not tolling the period for seeking certiorari. Our Rule 13.4 now expressly incorporates this practice. See n. 13, supra. This practice rests on the important distinction between "petitions for rehearing," which are authorized by Rule 40(a) of the Federal Rules of Appellate Procedure, and "suggestions for rehearing in banc," which are permitted by Rule 35(b).^[15] In [47] this case, the State styled its filing as a "Petition for Rehearing En Banc."^[16] There is technically no provision for the filing of a "Petition for Rehearing En Banc" in the Rules of Appellate Procedure. A party may petition for rehearing before the panel under Rule 40, file a suggestion for a rehearing in banc under Rule 35, or do both, separately or together. The State's filing on its face did not exactly comport with any of these options. If the filing was no more than a suggestion for rehearing in banc, as respondents insist, the petition for certiorari was untimely. But if, as the State argues, its papers qualified for treatment as a petition for rehearing within the meaning of Rule 40 as well as a suggestion for rehearing in banc under Rule 35, the 90-day period for seeking certiorari began on October 14, 1988, and the State's petition for certiorari was timely filed.

Though the matter is not without difficulty, we conclude that the State has the better of the argument. It appears to us that the Court of Appeals interpreted and actually treated the State's papers as including a petition for rehearing before the panel.^[17] If the Eighth Circuit had regarded the State's [48] papers as only a suggestion for rehearing in banc, without a petition for panel rehearing as well, Rules 35(c) and 41(a) of the Federal Rules of Appellate Procedure would have required the court to issue its mandate within 21 days of the entry of the panel's judgment.^[18] The Court of Appeals did not issue the mandate within 21 days of the panel's judgment, but issued it only upon its October 14 order denying the State's petition. Nor did the Court of Appeals issue an order extending the time for the issuance of the mandate, as it may do under Rule 41(a).

Respondents insist that the Eighth Circuit routinely withholds the mandate during the pendency of a suggestion for rehearing in banc even without the order contemplated by Rule 41(a) and point us to United States v. Samuels, 808 F. 2d 1298, 1299 (1987), where the Chief Judge of that court wrote separately respecting the denial of rehearing in banc to emphasize that the Eighth Circuit has done so. The Court of Appeals may not on every occasion have observed the technicalities of Rules 35(c) and 41(a), but we cannot conclude from the respondents' submission that the Eighth Circuit has engaged in a systematic practice of ignoring those formalities. We presume that the Eighth Circuit withheld the mandate [49] because, under Rule 41(a), it must do so when a petition for panel rehearing is pending.

It is true that the Eighth Circuit's original October 14 order stated that there were three "petitions for rehearing en banc pending before the Court" and that all "petitions for rehearing en banc" were denied. Only after this Court's Clerk informed Jackson County that its application for extension of time was untimely did the Court of Appeals amend its October 14 order nunc pro tunc to state that there were "petitions for rehearing with suggestions for rehearing en banc pending before the Court" and that those "petitions for rehearing . . . with suggestions for rehearing en banc" were denied. Respondents argue that the original order is more probative of the Eighth Circuit's contemporaneous treatment of the State's petition, and they contend that order clearly does not treat the petition as requesting panel rehearing. They insist that the Eighth Circuit cannot, post hoc, amend its order to make it appear that it took an action which it never took.

The Court of Appeals of course cannot make the record what it is not. The time for applying for certiorari will not be tolled when it appears that the lower court granted rehearing or amended its order solely for the purpose of extending that time. Cf. Wayne United Gas Co. v. OwensIllinois Glass Co., 300 U. S. 131, 137 (1937); Conboy v. First National Bank of Jersey City, 203 U. S. 141, 145 (1906); Credit Co. v. Arkansas Central R. Co., 128 U. S. 258, 261 (1888). But, as we see it, that is not what happened in this case: the Eighth Circuit originally entered an order denying the "petitions for rehearing en banc" because the papers filed with the court were styled as "petitions for rehearing en banc." When it was subsequently brought to the Eighth Circuit's attention that it had neglected to refer to those papers in its order as petitions for rehearing with suggestions for rehearing in banc, the court amended its order nunc pro tunc to ensure that the order reflected the reality of the action taken on October 14. The Eighth Circuit surely knows [50] more than we do about the meaning of its orders, and we accept its action for what it purports to be.

The Eighth Circuit, unlike other Circuits, does not have a published practice of treating all suggestions for rehearing in banc, no matter how styled, as containing both petitions for panel rehearing and suggestions for rehearing in banc. Cf. Gonzalez v. Southern Pacific Transportation Co., 773 F. 2d 637, 639 (CA5 1985); Eleventh Circuit Rule 35-6. Respondents argue that accepting the Eighth Circuit's interpretation of its October 14 order in this case risks confusion in future cases and invites the lower courts to pick and choose between those parties whose "petitions for rehearing in banc" they view favorably and wish to give additional time for seeking review in this Court, and those whose petitions they wish to give no such aid.

We share respondents' concern about the stability and clarity of jurisdictional rules. It is undoubtedly desirable to have published rules of procedure giving parties fair warning of the treatment afforded petitions for rehearing and suggestions for rehearing in banc. Regular adherence to published rules of procedure best promotes the principles of fairness, stability, and uniformity that those rules are designed to advance. But in the end we accept the Eighth Circuit's interpretation of its October 14 order and will not assume that its action in this case is not in accord with its regular practice.

III

We turn to the tax increase imposed by the District Court. The State urges us to hold that the tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We find it unnecessary to reach the difficult constitutional issues, for we agree with the State that the tax increase contravened the principles of comity that must govern the exercise of the District Court's equitable discretion in this area.

[51] It is accepted by all the parties, as it was by the courts below, that the imposition of a tax increase by a federal court was an extraordinary event. In assuming for itself the fundamental and delicate power of taxation the District Court not only intruded on local authority but circumvented it altogether. Before taking such a drastic step the District Court was obliged to assure itself that no permissible alternative would have accomplished the required task. We have emphasized that although the "remedial powers of an equity court must be adequate to the task, . . . they are not unlimited," Whitcomb v. Chavis, 403 U. S. 124, 161 (1971), and one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions. Especially is this true where, as here, those institutions are ready, willing, and — but for the operation of state law curtailing their powers — able to remedy the deprivation of constitutional rights themselves.

The District Court believed that it had no alternative to imposing a tax increase. But there was an alternative, the very one outlined by the Court of Appeals: it could have authorized or required KCMSD to levy property taxes at a rate adequate to fund the desegregation remedy and could have enjoined the operation of state laws that would have prevented KCMSD from exercising this power. 855 F. 2d, at 1314; see infra, at 52. The difference between the two approaches is far more than a matter of form. Authorizing and directing local government institutions to devise and implement remedies not only protects the function of those institutions but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems.

As Brown v. Board of Education, 349 U. S. 294, 299 (1955), observed, local authorities have the "primary responsibility for elucidating, assessing, and solving" the problems of desegregation. See also Milliken v. Bradley, 433 U. S. [52] 267, 281 (1977). This is true as well of the problems of financing desegregation, for no matter has been more consistently placed upon the shoulders of local government than that of financing public schools. As was said in another context, "[t]he very complexity of the problems of financing and managing a . . . public school system suggests that `there will be more than one constitutionally permissible method of solving them,' and that . . . `the legislature's efforts to tackle the problems' should be entitled to respect." San Antonio Independent School District v. Rodriguez, 411 U. S. 1, 42 (1973) (quoting Jefferson v. Hackney, 406 U. S. 535, 546-547 (1972)). By no means should a district court grant local government carte blanche, cf. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1 (1971), but local officials should at least have the opportunity to devise their own solutions to these problems. Cf. Sixty-seventh Minnesota State Senate v. Beens, 406 U. S. 187, 196 (1972) (per curiam).

The District Court therefore abused its discretion in imposing the tax itself. The Court of Appeals should not have allowed the tax increase to stand and should have reversed the District Court in this respect. See Langnes v. Green, 282 U. S. 531, 541-542 (1931).

IV

We stand on different ground when we review the modifications to the District Court's order made by the Court of Appeals. As explained supra, at 43, the Court of Appeals held that the District Court in the future should authorize KCMSD to submit a levy to the state tax collection authorities adequate to fund its budget and should enjoin the operation of state laws that would limit or reduce the levy below that amount. 855 F. 2d, at 1314.^[19]

[53] The State argues that the funding ordered by the District Court violates principles of equity and comity because the remedial order itself was excessive. As the State puts it, "[t]he only reason that the court below needed to consider an unprecedented tax increase was the equally unprecedented cost of its remedial programs." Brief for Petitioners 42. We think this argument aims at the scope of the remedy rather than the manner in which the remedy is to be funded and thus falls outside our limited grant of certiorari in this case. As we denied certiorari on the first question presented by the State's petition, which did challenge the scope of the remedial order, we must resist the State's efforts to argue that point now. We accept, without approving or disapproving, the Court of Appeals' conclusion that the District Court's remedy was proper. See Cone v. West Virginia Pulp & Paper Co., 330 U. S. 212, 215 (1947).

The State has argued here that the District Court, having found the State and KCMSD jointly and severally liable, should have allowed any monetary obligations that KCMSD [54] could not meet to fall on the State rather than interfere with state law to permit KCMSD to meet them.^[20] Under the circumstances of this case, we cannot say it was an abuse of discretion for the District Court to rule that KCMSD should be responsible for funding its share of the remedy. The State strenuously opposed efforts by respondents to make it responsible for the cost of implementing the order and had secured a reversal of the District Court's earlier decision placing on it all of the cost of substantial portions of the order. See 807 F. 2d, at 684-685. The District Court declined to require the State to pay for KCMSD's obligations because it believed that the Court of Appeals had ordered it to allocate the costs between the two governmental entities. See 672 F. Supp., at 411. Furthermore, if the District Court had chosen the route now suggested by the State, implementation of the remedial order might have been delayed if the State resisted efforts by KCMSD to obtain contribution.

It is true that in Milliken v. Bradley, 433 U. S., at 291, we stated that the enforcement of a money judgment against the State did not violate principles of federalism because "[t]he District Court . . . neither attempted to restructure local governmental entities nor . . . mandat[ed] a particular method or structure of state or local financing." But we did not there state that a district court could never set aside state laws preventing local governments from raising funds sufficient to satisfy their constitutional obligations just because those funds could also be obtained from the States. To the contrary, 42 U. S. C. § 1983, on which respondents' complaint is based, is authority enough to require each tortfeasor to pay its share of the cost of the remedy if it can, and apportionment of the cost is part of the equitable power of the District Court. Cf. Milliken v. Bradley, supra, at 289-290.

[55] We turn to the constitutional issues. The modifications ordered by the Court of Appeals cannot be assailed as invalid under the Tenth Amendment. "The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment." 433 U. S., at 291. "The Fourteenth Amendment. . . was avowedly directed against the power of the States," Pennsylvania v. Union Gas Co., 491 U. S. 1, 42 (1989) (SCALIA, J., concurring in part and dissenting in part), and so permits a federal court to disestablish local government institutions that interfere with its commands. Cf. New York City Bd. of Estimate v. Morris, 489 U. S. 688 (1989); Reynolds v. Sims, 377 U. S. 533, 585 (1964).

Finally, the State argues that an order to increase taxes cannot be sustained under the judicial power of Article III. Whatever the merits of this argument when applied to the District Court's own order increasing taxes, a point we have not reached, see supra, at 53, a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court. We held as much in Griffin v. Prince Edward County School Bd., 377 U. S., at 233, where we stated that a District Court, faced with a country's attempt to avoid desegregation of the public schools by refusing to operate those schools, could "require the [County] Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system . . . ." Griffin followed a long and venerable line of cases in which this Court held that federal courts could issue the writ of mandamus to compel local governmental bodies to levy taxes adequate to satisfy their debt obligations. See, e. g., Louisiana ex rel. Hubert v. Mayor and Council of New Orleans, 215 U. S. 170 (1909); Graham v. Folsom, 200 U. S. 248 (1906); Wolff v. New Orleans, 103 U. S. 358 (1881); United States v. New Orleans, 98 U. S. 381 (1879); Heine v. Levee [56] Commissioners, 19 Wall. 655, 657 (1874); City of Galena v. Amy, 5 Wall. 705 (1867); Von Hoffman v. City of Quincy, 4 Wall. 535 (1867); Board of Commissioners of Knox County v. Aspinwall, 24 How. 376 (1861).^[21]

The State maintains, however, that even under these cases, the federal judicial power can go no further than to require local governments to levy taxes as authorized under state law. In other words, the State argues that federal courts cannot set aside state-imposed limitations on local taxing authority because to do so is to do more than to require the local government "to exercise the power that is theirs." We disagree. This argument was rejected as early as Von Hoffman v. City of Quincy, supra. There the holder of bonds issued by the city sought a writ of mandamus against the city requiring it to levy taxes sufficient to pay interest [57] coupons then due. The city defended based on a state statute that limited its power of taxation, and the Circuit Court refused to mandamus the city. This Court reversed, observing that the statute relied on by the city was passed after the bonds were issued and holding that because the city had ample authority to levy taxes to pay its bonds when they were issued, the statute impaired the contractual entitlements of the bondholders, contrary to Art. I, § 10, cl. 1, of the Constitution, under which a State may not pass any law impairing the obligation of contracts. The statutory limitation, therefore, could be disregarded and the city ordered to levy the necessary taxes to pay its bonds.

It is therefore clear that a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation. In Von Hoffman, the limitation was disregarded because of the Contract Clause. Here, the KCMSD may be ordered to levy taxes despite the statutory limitations on its authority in order to compel the discharge of an obligation imposed on KCMSD by the Fourteenth Amendment. To hold otherwise would fail to take account of the obligations of local governments, under the Supremacy Clause, to fulfill the requirements that the Constitution imposes on them. However wide the discretion of local authorities in fashioning desegregation remedies may be, "if a state-imposed limitation on a school authority's discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees." North Carolina Bd. of Education v. Swann, 402 U. S. 43, 45 (1971). Even though a particular remedy may not be required in every case to vindicate constitutional guarantees, where (as here) it has been found that a particular remedy is required, the State cannot hinder the [58A] process by preventing a local government from implementing that remedy.^[22]

Accordingly, the judgment of the Court of Appeals is affirmed insofar as it required the District Court to modify its funding order and reversed insofar as it allowed the tax increase imposed by the District Court to stand. The case is remanded for further proceedings consistent with this opinion.

It is so ordered.

[58B] JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE O'CONNOR, and JUSTICE SCALIA join, concurring in part and concurring in the judgment.

In agreement with the Court that we have jurisdiction to decide this case, I join Parts I and II of the opinion. I agree also that the District Court exceeded its authority by attempting to impose a tax. The Court is unanimous in its holding, that the Court of Appeals' judgment affirming "the actions that the [district] court has taken to this point," 855 F.2d 1295, 1314 (CA8 1988), must be reversed. This is consistent with our precedents and the basic principles defining judicial power.

In my view, however, the Court transgresses these same principles when it goes further, much further, to embrace by broad dictum an expansion of power in the Federal Judiciary beyond all precedent. Today's casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards [59] fundamental precepts for the democratic control of public institutions. I cannot acquiesce in the majority's statements on this point, and should there arise an actual dispute over the collection of taxes as here contemplated in a case that is not, like this one, premature, we should not confirm the outcome of premises adopted with so little constitutional justification. The Court's statements, in my view, cannot be seen as necessary for its judgment, or as precedent for the future, and I cannot join Parts III and IV of the Court's opinion.

I

Some essential litigation history is necessary for a full understanding of what is at stake here and what will be wrought if the implications of all the Court's statements are followed to the full extent. The District Court's remedial plan was proposed for the most part by the Kansas City, Missouri, School District (KCMSD) itself, which is in name a defendant in the suit. Defendants, and above all defendants that are public entities, act in the highest and best tradition of our legal system when they acknowledge fault and cooperate to suggest remedies. But in the context of this dispute, it is of vital importance to note the KCMSD demonstrated little concern for the fiscal consequences of the remedy that it helped design.

As the District Court acknowledged, the plaintiffs and the KCMSD pursued a "friendly adversary" relationship. Throughout the remedial phase of the litigation, the KCMSD proposed ever more expensive capital improvements with the agreement of the plaintiffs, and the State objected. Some of these improvements involved basic repairs to deteriorating facilities within the school system. The KCMSD, however, devised a broader concept for districtwide improvement, and the District Court approved it. The plan involved a variation of the magnet school concept. Magnet schools, as the majority opinion notes, ante, at 40, n. 6, offer special programs, [60] often used to encourage voluntary movement of students within the district in a pattern that aids desegregation.

Although we have approved desegregation plans involving magnet schools of this conventional definition, see Milliken v. Bradley, 433 U. S. 267, 272 (1977), the District Court found this insufficient. App. to Pet. for Cert. 122a. Instead, the court and the KCMSD decided to make a magnet of the district as a whole. The hope was to draw new nonminority students from outside the district. The KCMSD plan adopted by the court provided that "every senior high school, every middle school, and approximately one-half of the elementary schools in the KCMSD will become magnet schools by the school year 1991-92." Id., at 121a. The plan was intended to "improve the quality of education of all KCMSD students." Id., at 103a. The District Court was candid to acknowledge that the "long term goal of this Court's remedial order is to make available to all KCMSD students educational opportunities equal to or greater than those presently available in the average Kansas City, Missouri metropolitan suburban school district." Id., at 145a-146a (emphasis in original).

It comes as no surprise that the cost of this approach to the remedy far exceeded KCMSD's budget, or for that matter, its authority to tax. A few examples are illustrative. Programs such as a "performing arts middle school," id., at 118a, a "technical magnet high school" that "will offer programs ranging from heating and air conditioning to cosmetology to robotics," id., at 75a, were approved. The plan also included a "25 acre farm and 25 acre wildland area" for science study. Id., at 20a. The court rejected various proposals by the State to make "capital improvements necessary to eliminate health and safety hazards and to provide a good learning environment," because these proposals failed to "consider the criteria of suburban comparability." Id., at 70a. The District Court stated: "This `patch and repair' approach proposed by the State would not achieve suburban comparability or the [61] visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint." Id., at 70a. Finding that construction of new schools would result in more "attractive" facilities than renovation of existing ones, the District Court approved new construction at a cost ranging from $61.80 per square foot to $95.70 per square foot as distinct from renovation at $45 per square foot. Id., at 76a.

By the time of the order at issue here, the District Court's remedies included some "$260 million in capital improvements and a magnet-school plan costing over $200 million." Missouri v. Jenkins, 491 U. S. 274 (1989). And the remedial orders grew more expensive as shortfalls in revenue became more severe. As the Eighth Circuit judges dissenting from denial of rehearing in banc put it: "The remedies ordered go far beyond anything previously seen in a school desegregation case. The sheer immensity of the programs encompassed by the district court's order — the large number of magnet schools and the quantity of capital renovations and new construction — are concededly without parallel in any other school district in the country." 855 F. 2d, at 1318-1319.

The judicial taxation approved by the Eighth Circuit is also without parallel. Other Circuits that have faced funding problems arising from remedial decrees have concluded that, while courts have undoubted power to order that schools operate in compliance with the Constitution, the manner and methods of school financing are beyond federal judicial authority. See National City Bank v. Battisti, 581 F. 2d 565 (CA6 1977); Plaquemines Parish School Bd. v. United States, 415 F. 2d 817 (CA5 1969). The Third Circuit, while leaving open the possibility that in some situation a court-ordered tax might be appropriate, has also declined to approve judicial interference in taxation. Evans v. Buchanan, 582 F. 2d 750 (1978), cert. denied sub nom. Alexis I. du Pont [62] School Dist. v. Evans, 446 U. S. 923 (1980). The Sixth Circuit, in a somewhat different context, has recognized the severe intrusion caused by federal court interference in state and local financing. Kelley v. Metropolitan County Bd. of Education of Nashville and Davidson County, Tenn., 836 F. 2d 986 (1987), cert. denied, 487 U. S. 1206 (1988).

Unlike these other courts, the Eighth Circuit has endorsed judicial taxation, first in dicta from cases in which taxation orders were in fact disapproved. United States v. Missouri, 515 F. 2d 1365, 1372-1373 (1975) (District Court may "implement its desegregation order by directing that provision be made for the levying of taxes"); Liddell v. Missouri, 731 F. 2d 1294, 1320, cert. denied sub nom. Leggett v. Liddell, 469 U. S. 816 (1984) (District Court may impose tax "after exploration of every other fiscal alternative"). The case before us represents the first in which a lower federal court has in fact upheld taxation to fund a remedial decree.

For reasons explained below, I agree with the Court that the Eighth Circuit's judgment affirming the District Court's direct levy of a property tax must be reversed. I cannot agree, however, that we "stand on different ground when we review the modifications to the District Court's order made by the Court of Appeals," ante, at 52. At the outset, it must be noted that the Court of Appeals made no "modifications" to the District Court's order. Rather, it affirmed "the actions that the court has taken to this point." 855 F. 2d, at 1314. It is true that the Court of Appeals went on "to consider the procedures which the district court should use in the future." Ibid. (emphasis added). But the Court of Appeals' entire discussion of "a preferable method for future funding," ibid., can be considered no more than dictum, the court itself having already upheld the District Court's actions to date. No other order of the District Court was before the Court of Appeals.

The Court states that the Court of Appeals' discussion of future taxation was not dictum because although the Court of [63] Appeals "did not require the District Court to reverse the tax increase that it had imposed for prior fiscal years," it "required the District Court to use the less obtrusive procedures beginning with the fiscal year commencing after the remand." Ante, at 52-53, n. 18. But no such distinction is found in the Court of Appeals' opinion. Rather, the court "affirm[ed] the actions that the [district] court has taken to this point," which included the District Court's October 27, 1987, order increasing property taxes in the KCMSD through the end of fiscal year 1991-1992. The District Court's January 3, 1989, order does not support, but refutes, the Court's characterization. The District Court rejected a request by the KCMSD to increase the property tax rate using the method endorsed by the Eighth Circuit from $4 to $4.23 per $100 of assessed valuation. The District Court reasoned that an increase in 1988 property taxes would be difficult to administer and cause resentment among taxpayers, and that an increase in 1989 property taxes would be premature because it was not yet known whether an increase would be necessary to fund expenditures. App. 511-512. In rejecting the KCMSD's request, the District Court left in effect the $4 rate it had established in its October 27, 1987, order.

Whatever the Court thinks of the Court of Appeals' opinion, the District Court on remand appears to have thought it was under no compulsion to disturb its existing order establishing the $4 property tax rate through fiscal year 1991-1992 unless and until it became necessary to raise property taxes even higher. The Court's discussion today, and its stated approval of the "method for future funding" found "preferable" by the Court of Appeals, is unnecessary for the decision in this case. As the Court chooses to discuss the question of future taxation, however, I must state my respectful disagreement with its analysis and conclusions on this vital question.

The premise of the Court's analysis, I submit, is infirm. Any purported distinction between direct imposition of a tax [64] by the federal court and an order commanding the school district to impose the tax is but a convenient formalism where the court's action is predicated on elimination of state-law limitations on the school district's taxing authority. As the Court describes it, the local KCMSD possesses plenary taxing powers, which allow it to impose any tax it chooses if not "hinder[ed]" by the Missouri Constitution and state statutes. Ante, at 57. This puts the conclusion before the premise. Local government bodies in Missouri, as elsewhere, must derive their power from a sovereign, and that sovereign is the State of Missouri. See Mo. Const., Art. X, § 1 (political subdivisions may exercise only "[tax] power granted to them" by Missouri General Assembly). Under Missouri law, the KCMSD has power to impose a limited property tax levy up to $1.25 per $100 of assessed value. The power to exact a higher rate of property tax remains with the people, a majority of whom must agree to empower the KCMSD to increase the levy up to $3.75 per $100, and two-thirds of whom must agree for the levy to go higher. See Mo. Const., Art. X, §§ 11(b),(c). The Missouri Constitution states that "[p]roperty taxes and other local taxes . . . may not be increased above the limitations specified herein without direct voter approval as provided by this constitution." Mo. Const., Art. X, § 16.

For this reason, I reject the artificial suggestion that the District Court may, by "prevent[ing] . . . officials from applying state law that would interfere with the willing levy of property taxes by KCMSD," ante, at 56, n. 20, cause the KCMSD to exercise power under state law. State laws, including taxation provisions legitimate and constitutional in themselves, define the power of the KCMSD. Cf. Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 695 (1979) (whether a state agency "may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful"). Absent a change in state law, no increase in property taxes could take [65] place in the KCMSD without a federal court order. It makes no difference that the KCMSD stands "ready, willing, and . . . able" to impose a tax not authorized by state law. Ante, at 51. Whatever taxing power the KCMSD may exercise outside the boundaries of state law would derive from the federal court. The Court never confronts the judicial authority to issue an order for this purpose. Absent a change in state law, the tax is imposed by federal authority under a federal decree. The question is whether a district court possesses a power to tax under federal law, either directly or through delegation to the KCMSD.

II

Article III of the Constitution states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." The description of the judicial power nowhere includes the word "tax" or anything that resembles it. This reflects the Framers' understanding that taxation was not a proper area for judicial involvement. "The judiciary . . . has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever." The Federalist No. 78, p. 523 (J. Cooke ed. 1961) (A. Hamilton).

Our cases throughout the years leave no doubt that taxation is not a judicial function. Last Term we rejected the invitation to cure an unconstitutional tax scheme by broadening the class of those taxed. We said that such a remedy "could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court." Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 818 (1989). Our statement in Davis rested on the explicit holding in Moses Lake Homes, Inc. v. Grant County, 365 U. S. 744 (1961), in which we reversed a judgment directing a District Court to decree a valid tax in place of an invalid one that the State had attempted to enforce:

[66] "The effect of the Court's remand was to direct the District Court to decree a valid tax for the invalid one which the State had attempted to exact. The District Court has no power so to decree. Federal courts may not assess or levy taxes. Only the appropriate taxing officials of Grant County may assess and levy taxes on these leaseholds, and the federal courts may determine, within their jurisdiction, only whether the tax levied by those officials is or is not a valid one." Id., at 752.

The nature of the District Court's order here reveals that it is not a proper exercise of the judicial power. The exercise of judicial power involves adjudication of controversies and imposition of burdens on those who are parties before the Court. The order at issue here is not of this character. It binds the broad class of all KCMSD taxpayers. It has the purpose and direct effect of extracting money from persons who have had no presence or representation in the suit. For this reason, the District Court's direct order imposing a tax was more than an abuse of discretion, for any attempt to collect the taxes from the citizens would have been a blatant denial of due process.

Taxation by a legislature raises no due process concerns, for the citizens' "rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Bi-Metallic Co. v. Colorado State Bd. of Equalization, 239 U. S. 441, 445 (1915). The citizens who are taxed are given notice and a hearing through their representatives, whose power is a direct manifestation of the citizens' consent. A true exercise of judicial power provides due process of another sort. Where money is extracted from parties by a court's judgment, the adjudication itself provides the notice and opportunity to be heard that due process demands before a citizen may be deprived of property.

The order here provides neither of these protections. Where a tax is imposed by a governmental body other than [67] the legislature, even an administrative agency to which the legislature has delegated taxing authority, due process requires notice to the citizens to be taxed and some opportunity to be heard. See, e. g., Londoner v. Denver, 210 U. S. 373, 385-386 (1908). The citizens whose tax bills would have been doubled under the District Court's direct tax order would not have had these protections. The taxes were imposed by a District Court that was not "representative" in any sense, and the individual citizens of the KCMSD whose property (they later learned) was at stake were neither served with process nor heard in court. The method of taxation endorsed by today's dicta suffers the same flaw, for a district court order that overrides the citizens' state-law protection against taxation without referendum approval can in no sense provide representational due process. No one suggests the KCMSD taxpayers are parties.

A judicial taxation order is but an attempt to exercise a power that always has been thought legislative in nature. The location of the federal taxing power sheds light on today's attempt to approve judicial taxation at the local level. Article I, § 1, states that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Emphasis added.) The list of legislative powers in Article I, § 8, cl. 1, begins with the statement that "[t]he Congress shall have Power To lay and collect Taxes. . . ." As we have said, "[t]axation is a legislative function, and Congress . . . is the sole organ for levying taxes." National Cable Television Assn., Inc. v. United States, 415 U. S. 336, 340 (1974) (citing Article I, § 8, cl. 1).

True, today's case is not an instance of one branch of the Federal Government invading the province of another. It is instead one that brings the weight of federal authority upon a local government and a State. This does not detract, however, from the fundamental point that the Judiciary is not free to exercise all federal power; it may exercise only the [68] judicial power. And the important effects of the taxation order discussed here raise additional federalism concerns that counsel against the Court's analysis.

In perhaps the leading case concerning desegregation remedies, Milliken v. Bradley, 433 U. S. 267 (1977), we upheld a prospective remedial plan, not a "money judgment," ante, at 54, against a State's claim that principles of federalism had been ignored in the plan's implementation. In so doing the Court emphasized that the District Court had "neither attempted to restructure local governmental entities nor to mandate a particular method or structure of state or local financing." 433 U. S., at 291. No such assurances emerge from today's decision, which endorses federal-court intrusion into these precise matters. Our statement in a case decided more than 100 years ago should apply here.

"This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important." Rees v. City of Watertown, 19 Wall. 107, 116-117 (1874).

The confinement of taxation to the legislative branches, both in our Federal and State Governments, was not random. It reflected our ideal that the power of taxation must be under the control of those who are taxed. This truth animated all our colonial and revolutionary history.

"Your Memorialists conceive it to be a fundamental Principle. . . without which Freedom can no Where exist, that the People are not subject to any Taxes but such as are laid on them by their own Consent, or by those who are legally appointed to represent them: Property must become too precarious for the Genius of a free People [69] which can be taken from them at the Will of others, who cannot know what Taxes such people can bear, or the easiest Mode of raising them; and who are not under that Restraint, which is the greatest Security against a burthensome Taxation, when the Representatives themselves must be affected by every tax imposed on the People." Virginia Petitions to King and Parliament, December 18, 1764, reprinted in The Stamp Act Crisis 41 (E. Morgan ed. 1952).

The power of taxation is one that the Federal Judiciary does not possess. In our system "the legislative department alone has access to the pockets of the people," The Federalist No. 48, p. 334 (J. Cooke ed. 1961) (J. Madison), for it is the Legislature that is accountable to them and represents their will. The authority that would levy the tax at issue here shares none of these qualities. Our Federal Judiciary, by design, is not representative or responsible to the people in a political sense; it is independent. Federal judges do not depend on the popular will for their office. They may not even share the burden of taxes they attempt to impose, for they may live outside the jurisdiction their orders affect. And federal judges have no fear that the competition for scarce public resources could result in a diminution of their salaries. It is not surprising that imposition of taxes by an authority so insulated from public communication or control can lead to deep feelings of frustration, powerlessness, and anger on the part of taxpaying citizens.

The operation of tax systems is among the most difficult aspects of public administration. It is not a function the Judiciary as an institution is designed to exercise. Unlike legislative bodies, which may hold hearings on how best to raise revenues, all subject to the views of constituents to whom the Legislature is accountable, the Judiciary must grope ahead with only the assistance of the parties, or perhaps random amici curiae. Those hearings would be without principled direction, for there exists no body of juridical axioms by [70] which to guide or review them. On this questionable basis, the Court today would give authority for decisions that affect the life plans of local citizens, the revenue available for competing public needs, and the health of the local economy.

Day-to-day administration of the tax must be accomplished by judicial trial and error, requisitioning the staff of the existing tax authority, or the hiring of a staff under the direction of the judge. The District Court orders in this case suggest the pitfalls of the first course. See App. to Pet. for Cert. 55a (correcting order for assessment of penalties for nonpayment that "mistakenly" assessed penalties on an extra tax year); id., at 57a ("clarify[ing]" the inclusion of savings and loan institutions, estates, trusts, and beneficiaries in the court's income tax surcharge and enforcement procedures). Forcing citizens to make financial decisions in fear of the fledgling judicial tax collector's next misstep must detract from the dignity and independence of the federal courts.

The function of hiring and supervising a staff for what is essentially a political function has other complications. As part of its remedial order, for example, the District Court ordered the hiring of a "public information specialist," at a cost of $30,000. The purpose of the position was to "solicit community support and involvement" in the District Court's desegregation plan. See id., at 191a. This type of order raises a substantial question whether a district court may extract taxes from citizens who have no right of representation and then use the funds for expression with which the citizens may disagree. Cf. Abood v. Detroit Bd. of Education, 431 U. S. 209 (1977).

The Court relies on dicta from Griffin v. Prince Edward County School Bd., 377 U. S. 218 (1964), to support its statements on judicial taxation. In Griffin, the Court faced an unrepentent and recalcitrant school board that attempted to provide financial support for white schools while refusing to operate schools for black schoolchildren. We stated that the District Court could "require the Supervisors to exercise the [71] power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system." Id., at 233 (emphasis added). There is no occasion in this case to discuss the full implications of Griffin's observation, for it has no application here. Griffin endorsed the power of a federal court to order the local authority to exercise existing authority to tax.

This case does not involve an order to a local government with plenary taxing power to impose a tax, or an order directed at one whose taxing power has been limited by a state law enacted in order to thwart a federal court order. An order of this type would find support in the Griffin dicta and present a closer question than the one before us. Yet that order might implicate as well the "perversion of the normal legislative process" that we have found troubling in other contexts. See Spallone v. United States, 493 U. S. 265, 280 (1990). A legislative vote taken under judicial compulsion blurs lines of accountability by making it appear that a decision was reached by elected representatives when the reality is otherwise. For this reason, it is difficult to see the difference between an order to tax and direct judicial imposition of a tax.

The Court asserts that its understanding of Griffin follows from cases in which the Court upheld the use of mandamus to compel local officials to collect taxes that were authorized under state law in order to meet bond obligations. See ante, at 55-57. But as discussed supra, at 63-65, there was no state authority in this case for the KCMSD to exercise. In this situation, there could be no authority for a judicial order touching on taxation. See United States v. County of Macon, 99 U. S. 582, 591 (1879) (where the statute empowering the corporation to issue bonds contains a limit on the taxing power, federal court has no power of mandamus to compel a levy in excess of that power; "We have no power by mandamus to compel a municipal corporation to levy a tax which the law does not authorize. We cannot create new [72] rights or confer new powers. All we can do is to bring existing powers into operation").

The Court cites a single case, Von Hoffman v. City of Quincy, 4 Wall. 535 (1867), for the proposition that a federal court may set aside state taxation limits that interfere with the remedy sought by the district court. But the Court does not heed Von Hoffman's holding. There a municipality had authorized a tax levy in support of a specific bond obligation, but later limited the taxation authority in a way that impaired the bond obligation. The Court held the subsequent limitation itself unconstitutional, a violation of the Contracts Clause. Once the limitation was held invalid, the original specific grant of authority remained. There is no allegation here, nor could there be, that the neutral tax limitations imposed by the people of Missouri are unconstitutional. Compare Tr. of Oral Arg. 41 ("nothing in the record to suggest" that tax limitation was intended to frustrate desegregation) with Griffin, supra, at 221 (State Constitution amended as part of state and school district plan to resist desegregation). The majority appears to concede that the Missouri tax law does not violate a specific provision of the Constitution, stating instead that state laws may be disregarded on the basis of a vague "reason based in the Constitution." Ante, at 57. But this broad suggestion does not follow from the holding in Von Hoffman.

Examination of the "long and venerable line of cases," ante, at 55, cited by the Court to endorse judicial taxation reveals the lack of real support for the Court's rationale. One group of these cases holds simply that the common-law writ of mandamus lies to compel a local official to perform a clear duty imposed by state law. See United States v. New Orleans, 98 U. S. 381 (1879) (reaffirming legislative nature of the taxing power and the availability of mandamus to compel officers to levy a tax where they were required by state law to do so); City of Galena v. Amy, 5 Wall. 705 (1867) (mandamus to state officials to collect a tax authorized by state law [73] in order to fund a state bond obligation); Board of Commissioners of Knox County v. Aspinwall, 24 How. 376 (1861) (state statute gave tax officials authority to levy the tax needed to satisfy a bond obligation and explicitly required them to do so; mandamus was proper to compel performance of this "plain duty" under state law). These common-law mandamus decisions do not purport to involve the Federal Constitution or remedial powers.

A second set of cases, including the Von Hoffman case relied upon by the Court, invalidates on Contracts Clause grounds statutory limitations on taxation power passed subsequent to grants of tax authority in support of bond obligations. See Louisiana ex rel. Hubert v. Mayor and Council of New Orleans, 215 U. S. 170 (1909) (state law authorized municipal tax in support of bond obligation; subsequent legislation removing the authority is invalid under Contracts Clause, and mandamus will lie against municipal official to collect the tax); Graham v. Folsom, 200 U. S. 248 (1906) (where state municipality enters into a bond obligation based on delegated state power to collect a tax, State may not by subsequent abolition of the municipality remove the taxing power; such an act is itself invalid as a violation of the Contracts Clause); Wolff v. New Orleans, 103 U. S. 358 (1881) (same). These cases, like Von Hoffman, are inapposite because there is no colorable argument that the provision of the Missouri Constitution limiting property tax assessments itself violates the Federal Constitution.

A third group of cases involving taxation and municipal bonds is more relevant. These cases hold that where there is no state or municipal taxation authority that the federal court may by mandamus command the officials to exercise, the court is itself without authority to order taxation. In some of these cases, the officials charged with administering the tax resigned their positions, and the Court held that no judicial remedy was available. See Heine v. Levee Commissioners, 19 Wall. 655 (1874) (where the levee commissioners [74] had resigned their office no one remained on whom the mandamus could operate). In Heine, the Court held that it had no equitable power to impose a tax in order to prevent the plaintiff's right from going without a remedy.

"The power we are here asked to exercise is the very delicate one of taxation. This power belongs in this country to the legislative sovereignty, State or National.. . . It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to suppose that the legislature would ever select a Federal court for that purpose. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee." Id., at 660-661.

Other cases state more broadly that absent state authority for a tax levy, the exercise of which may be compelled by mandamus, the federal court is without power to impose any tax. See Meriwether v. Garrett, 102 U. S. 472 (1880) (where State repealed municipal charter, federal court had no authority to impose taxes, which may be collected only under authority from the legislature); id., at 515 (Field, J., concurring in judgment) ("The levying of taxes is not a judicial act. It has no elements of one"); United States v. County of Macon, 99 U. S. 582 (1879) (no authority to compel a levy higher than state law allowed outside situation where a subsequent limitation violated Contracts Clause); Rees v. City of Watertown, 19 Wall. 107 (1874) (holding mandamus unavailable where officials have resigned, and that tax limitation in effect when bond obligation was undertaken may not be exceeded by court order).

With all respect, it is this third group of cases that applies. The majority would limit these authorities to a narrow "exceptio[n]" [75] for cases where local officers resigned. Ante, at 56, n. 20. This is not an accurate description. Rather, the cases show that where a limitation on the local authority's taxing power is not a subsequent enactment itself in violation of the Contracts Clause, a federal court is without power to order a tax levy that goes beyond the authority granted by state law. The Court states that the KCMSD was "invested with authority to collect and disburse the property tax." Ibid. Invested by whom? It is plain that the KCMSD had no such power under state law. That being so, the authority to levy a higher tax would have to come from the federal court. The very cases cited by the majority show that a federal court has no such authority.

At bottom, today's discussion seems motivated by the fear that failure to endorse judicial taxation power might in some extreme circumstance leave a court unable to remedy a constitutional violation. As I discuss below, I do not think this possibility is in reality a significant one. More important, this possibility is nothing more or less than the necessary consequence of any limit on judicial power. If, however, judicial discretion is to provide the sole limit on judicial remedies, that discretion must counsel restraint. Ill-considered entry into the volatile field of taxation is a step that may place at risk the legitimacy that justifies judicial independence.

III

One of the most troubling aspects of the Court's opinion is that discussion of the important constitutional issues of judicial authority to tax need never have been undertaken to decide this case. Even were I willing to accept the Court's proposition that a federal court might in some extreme case authorize taxation, this case is not the one. The suggestion that failure to approve judicial taxation here would leave constitutional rights unvindicated rests on a presumption that the District Court's remedy is the only possible cure for the constitutional violations it found. Neither our precedents [76] nor the record support this view. In fact, the taxation power is sought here on behalf of a remedial order unlike any before seen.

It cannot be contended that interdistrict comparability, which was the ultimate goal of the District Court's orders, is itself a constitutional command. We have long since determined that "unequal expenditures between children who happen to reside in different districts" do not violate the Equal Protection Clause. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 54-55 (1973). The District Court in this case found, and the Court of Appeals affirmed, that there was no interdistrict constitutional violation that would support mandatory interdistrict relief. See Jenkins v. Missouri, 807 F. 2d 657 (CA8 1986). Instead, the District Court's conclusion that desegregation might be easier if more nonminority students could be attracted into the KCMSD was used as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD. The State's complaint that this suit represents the attempt of a school district that could not obtain public support for increased spending to enlist the District Court to finance its educational policy cannot be dismissed out of hand. The plaintiffs and KCMSD might well be seen as parties that have "joined forces apparently for the purpose of extracting funds from the state treasury." Milliken v. Bradley, 433 U. S., at 293 (Powell, J., concurring in judgment).

This Court has never approved a remedy of the type adopted by the District Court. There are strong arguments against the validity of such a plan. A remedy that uses the quality of education as a lure to attract nonminority students will place the District Court at the center of controversies over educational philosophy that by tradition are left to this Nation's communities. Such a plan as a practical matter raises many of the concerns involved in interdistrict desegregation remedies. Cf. Milliken v. Bradley, 418 U. S. 717 [77] (1974) (invalidating interdistrict remedial plan). District courts can and must take needed steps to eliminate racial discrimination and ensure the operation of unitary school systems. But it is discrimination, not the ineptitude of educators or the indifference of the public, that is the evil to be remedied. An initial finding of discrimination cannot be used as the basis for a wholesale shift of authority over day-to-day school operations from parents, teachers, and elected officials to an unaccountable district judge whose province is law, not education.

Perhaps it is good educational policy to provide a school district with the items included in the KCMSD capital improvement plan, for example: high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; greenhouses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities. But these items are a part of legitimate political debate over educational policy and spending priorities, not the Constitution's command of racial equality. Indeed, it may be that a mere 12-acre petting farm, or other corresponding reductions in court-ordered spending, might satisfy constitutional requirements, while preserving scarce public funds for legislative allocation to other public needs, such as paving streets, feeding the poor, building prisons, or housing the homeless. Perhaps the KCMSD's Classical Greek theme schools emphasizing forensics and self-government will provide exemplary training in participatory democracy. But if today's dicta become law, such lessons will be of little use to students who grow up to become taxpayers in the KCMSD.

[78] I am required in light of our limited grant of certiorari to assume that the remedy chosen by the District Court was a permissible exercise of its remedial discretion. But it is misleading to suggest that a failure to fund this particular remedy would leave constitutional rights without a remedy. In fact, the District Court acknowledged in its very first remedial order that the development of a remedy in this case would involve "a choice among a wide range of possibilities." App. to Pet. for Cert. 153a. Its observation was consistent with our cases concerning the scope of equitable remedies, which have recognized that "equity has been characterized by a practical flexibility in shaping its remedies." Brown v. Board of Education, 349 U. S. 294, 300 (1955).

Any argument that the remedy chosen by the District Court was the only one possible is in fact unsupportable in light of our previous cases. We have approved desegregation orders using assignment changes and some ancillary education programs to ensure the operation of a unitary school system for the district's children. See, e. g., Columbus Bd. of Education v. Penick, 443 U. S. 449 (1979); Dayton Bd. of Education v. Brinkman, 433 U. S. 406 (1977). To suggest that a constitutional violation will go unremedied if a district does not, though capital improvements or other means, turn every school into a magnet school, and the entire district into a magnet district, is to suggest that the remedies approved in our past cases should have been disapproved as insufficient to deal with the violations. The truth of the matter is that the remedies in those cases were permissible choices among the many that might be adopted by a district court.

The prudence we have required in other areas touching on federal court intrusion in local government, see, e. g., Spallone v. United States, 493 U. S. 265 (1990), is missing here. Even on the assumption that a federal court might order taxation in an extreme case, the unique nature of the taxing power would demand that this remedy be used as a last resort. In my view, a taxation order should not even be [79] considered, and this Court need never have addressed the question, unless there has been a finding that without the particular remedy at issue the constitutional violation will go unremedied. By this I do not mean that the remedy is, as we assume this one was, within the broad discretion of the district court. Rather, as a prerequisite to considering a taxation order, I would require a finding that that any remedy less costly than the one at issue would so plainly leave the violation unremedied that its implementation would itself be an abuse of discretion. There is no showing in this record that, faced with the revenue shortfall, the District Court gave due consideration to the possibility that another remedy among the "wide range of possibilities" would have addressed the constitutional violations without giving rise to a funding crisis.

The District Court here did consider alternatives to the taxing measures it imposed, but only funding alternatives. See, e. g., App. to Pet. for Cert. 86a. There is no indication in the record that the District Court gave any consideration to the possibility that an alternative remedial plan, while less attractive from an educational policy viewpoint, might nonetheless suffice to cure the constitutional violation. Rather, it found only that the taxation orders were necessary to fund the particular remedy it had devised. This Court, with full justification, has given latitude to the district judges that must deal with persisting problems of desegregation. Even when faced with open defiance of the mandate of educational equality, however, no court has ever found necessary a remedy of the scope presented here. For this reason, no order of taxation has ever been approved. The Court fails to provide any explanation why this case presents the need to endorse by dictum so drastic a step.

The suggestion that our limited grant of certiorari requires us to decide this case blinkered as to the actual remedy underlying it, ante, at 53, is ill founded. A limited grant of certiorari is not a means by which the Court can pose for itself [80] an abstract question. Our jurisdiction is limited to particular cases and controversies. U. S. Const., Art. III, § 2, cl. 1. The only question this Court has authority to address is whether a judicial tax was appropriate in this case. Moreover, the petition for certiorari in this case included the contention that the District Court should not have considered the power to tax before considering whether its choice of remedy was the only possible way to achieve desegregation as a part of its argument on Question 2, which the Court granted. Pet. for Cert. 27. Far from being an improper invitation to go outside the question presented, attention to the extraordinary remedy here is the Court's duty. This would be a far more prudent course than recharacterizing the case in an attempt to reach premature decision on an important question. If the Court is to take upon itself the power to tax, respect for its own integrity demands that the power be exercised in support of true constitutional principle, not "suburban comparability" and "visual attractiveness."

IV

This case is a stark illustration of the ever-present question whether ends justify means. Few ends are more important than enforcing the guarantee of equal educational opportunity for our Nation's children. But rules of taxation that override state political structures not themselves subject to any constitutional infirmity raise serious questions of federal authority, questions compounded by the odd posture of a case in which the Court assumes the validity of a novel conception of desegregation remedies we never before have approved. The historical record of voluntary compliance with the decree of Brown v. Board of Education is not a proud chapter in our constitutional history, and the judges of the District Courts and Courts of Appeals have been courageous and skillful in implementing its mandate. But courage and skill must be exercised with due regard for the proper and historic role of the courts.

[81] I do not acknowledge the troubling departures in today's majority opinion as either necessary or appropriate to ensure full compliance with the Equal Protection Clause and its mandate to eliminate the cause and effects of racial discrimination in the schools. Indeed, while this case happens to arise in the compelling context of school desegregation, the principles involved are not limited to that context. There is no obvious limit to today's discussion that would prevent judicial taxation in cases involving prisons, hospitals, or other public institutions, or indeed to pay a large damages award levied against a municipality under 42 U. S. C. § 1983. This assertion of judicial power in one of the most sensitive of policy areas, that involving taxation, begins a process that over time could threaten fundamental alteration of the form of government our Constitution embodies.

James Madison observed: "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit." The Federalist, No. 51, p. 352 (J. Cooke ed. 1961). In pursuing the demand of justice for racial equality, I fear that the Court today loses sight of other basic political liberties guaranteed by our constitutional system, liberties that can coexist with a proper exercise of judicial remedial powers adequate to correct constitutional violations.

[1] Briefs of amici curiae urging reversal were filed for the State of New Mexico by Hal Stratton, Attorney General, Randall W. Childress, Deputy Attorney General, Charles R. Peifer, Chief Assistant Attorney General, and Paul Farley, Assistant Attorney General; for Jackson County, Missouri, by John B. Williams and Russell D. Jacobson; for the National Governors' Association et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, and Andrew D. Hurwitz; and for Icelean Clark et al. by Mark J. Bredemeier and Jerald L. Hill.

Peter S. Hendrixson filed a brief for the Lawyers' Committee for Civil Rights Under Law as amicus curiae urging affirmance.

[2] This litigation has come to us once before, on the collateral issue of attorney's fees. Missouri v. Jenkins, 491 U. S. 274 (1989).

[3] The complaint originally alleged that the defendants had caused interdistrict segregation of the public schools. After KCMSD was realigned as a defendant, a group of students filed an amended complaint that also alleged intradistrict segregation. The District Court certified a plaintiff class of present and future KCMSD students.

[4] The District Court also found that none of the alleged discriminatory actions had resulted in lingering interdistrict effects and so dismissed the suburban school districts and denied interdistrict relief.

[5] KCMSD was ordered to improve the quality of the curriculum and library, reduce teaching load, and implement tutoring, summer school, and child development programs. The cost of these remedies was to be borne equally by the State and KCMSD. 639 F. Supp., at 28, 31-33. The District Court ordered an extensive capital improvement program to rehabilitate the deteriorating physical plant of KCMSD, the cost of which was estimated as at least $37 million, of which $27 million was to be contributed by the State. Id., at 39-41. The District Court also required the defendants to encourage voluntary interdistrict transfer of students. No cost was placed on the interdistrict transfer program, but the State was ordered to underwrite the program in full. Id., at 38-39. The District Court further ordered the State to fund fully other portions of the desegregation program intended to reduce class size and to improve student achievement. Id., at 30, 33.

[6] KCMSD voters approved a levy of $3.75 per $100 in 1969, but efforts to raise the tax rate higher than that had consistently failed to obtain the approval of two-thirds of the voters, and the District Court found it unlikely that a proposal to raise taxes above $3.75 per $100 would receive the voters' approval. Id., at 44.

[7] "Magnet schools," as generally understood, are public schools of voluntary enrollment designed to promote integration by drawing students away from their neighborhoods and private schools through distinctive curricula and high quality. See Price & Stern, Magnet Schools as a Strategy for Integration and School Reform, 5 Yale L. & Policy Rev. 291 (1987).

[8] The District Court authorized $12,972,727 for operation of the six magnet schools and $12,877,330 for further capital improvements at those schools. Jenkins v. Missouri, 639 F. Supp., at 53-55.

[9] The District Court also imposed a 1.5% surcharge on the state income tax levied within the KCMSD. 672 F. Supp. 400, 412 (WD Mo. 1987). The income tax surcharge was reversed by the Eighth Circuit. 855 F. 2d 1295, 1315-1316 (1988). Respondents did not cross-petition to challenge this aspect of the Court of Appeals' judgment, so the surcharge is not before us.

[10] The Court of Appeals also relied on Circuit precedent suggesting that a district court could order a property tax increase after exploring every other fiscal alternative. Id., at 1310-1311; see Liddell v. Missouri, 731 F. 2d 1294 (in banc), cert. denied, 469 U. S. 816 (1984); United States v. Missouri, 515 F. 2d 1365 (in banc), cert. denied sub nom. Ferguson Reorganized School Dist. R-2 v. United States, 423 U. S. 951 (1975).

[11] The Court of Appeals rejected the argument that such an injunction would violate the Tax Injunction Act, 28 U. S. C. § 1341, as the injunction would require the collection of additional taxes, not inhibit the collection of taxes. 855 F. 2d, at 1315. Accord, Applying County v. Municipal Electric Authority of Georgia, 621 F. 2d 1301, 1304 (CA5), cert. denied, 449 U. S. 1015 (1980).

[12] Chief Judge Lay dissented from the resolution of the property tax issue. He argued that as the State and KCMSD were jointly and severally liable for the cost of the desegregation remedy, the District Court should have allowed any amount that KCMSD was unable to pay to fall on the State rather than require the tax increase. 855 F. 2d, at 1318.

[13] As we discuss infra, at 45, 28 U. S. C. § 2101(c) requires that a petition for certiorari in a civil case be filed within 90 days after the entry of the judgment sought to be reviewed. Section 2101(c) also permits a Justice of this Court, "for good cause shown," to grant an extension of time for the filing of a petition for certiorari in a civil case for a period not exceeding 60 days. In civil cases, applications for extension of time must be presented during the original 90-day period. This Court's Rule 30.2.

[14] This practice is now reflected in this Court's Rule 13.4: "[I]f a petition for rehearing is timely filed in the lower court by any party in the case, the time for filing the petition for a writ of certiorari . . . runs from the date of the denial of the petition for rehearing or the entry of a subsequent judgment. A suggestion made to a United States court of appeals for a rehearing in banc . . . is not a petition for rehearing within the meaning of this Rule." The practice does not extend to petitions for rehearing seeking only to correct a formal defect in the judgment or opinion of the lower court. In such cases, of which Pink was one, "no . . . alteration of the rights [is] asked, and the finality of the court's first order [is] never suspended." 317 U. S., at 266. See also FTC v. Minneapolis-Honeywell Regulator Co., 344 U. S. 206 (1952).

[15] A petition for rehearing is designed to bring to the panel's attention points of law or fact that it may have overlooked. Fed. Rule App. Proc. 40(a). The panel is required to consider the contentions in the petition for rehearing, if only to reject them. Rehearing in banc is a discretionary procedure employed only to address questions of exceptional importance or to maintain uniformity among Circuit decisions. Fed. Rule App. Proc. 35(a). As the Reporter for the Advisory Committee drafting the Rules has observed: "[A] party who desires a hearing or rehearing in banc may `suggest' the appropriateness of such a hearing. . . . The term `suggest' was deliberately chosen to make it clear that a party's sole entitlement is to direct the attention of the court to the desirability of in banc consideration. A suggestion is neither a petition nor a motion; consequently, it requires no disposition by the court." Ward, The Federal Rules of Appellate Procedure, 28 Federal B. J. 100, 110-111 (1968); see also Moody v. Albemarle Paper Co., 417 U. S. 622, 625 (1974) (per curiam); Shenker v. Baltimore & Ohio R. Co., 374 U. S. 1, 5 (1963); Western Pacific Railroad Case, 345 U. S. 247, 258-259 (1953). Consequently, Rule 35(c) specifically provides that the filing of a suggestion for rehearing in banc, unlike a petition for rehearing, "shall not affect the finality of the judgment of the court of appeals or stay the issuance of the mandate."

[16] We note that the Federal Rules of Appellate Procedure and 28 U. S. C. § 46(c) (which provides the courts of appeals with authority to sit in banc) speak of rehearing in banc, not en banc.

[17] Although respondents do not agree that the Eighth Circuit so treated the State's papers, they do not argue the Court of Appeals lacked the power to treat the State's "Petition for Rehearing En Banc" as a petition for panel rehearing, even if it was intended subjectively and could be read objectively as only a suggestion for rehearing in banc. Furthermore, parties frequently combine a petition for rehearing and a suggestion for rehearing in banc in one document incorrectly labeled as a "petition for rehearing in banc," see Advisory Committee's Notes on Fed. Rule App. Proc. 35, 28 U. S. C. App., p. 491, and the Eighth Circuit may have believed, because of the label on the State's papers, that the State intended its filing to be read as containing both. Other Circuits routinely treat documents so labeled as containing only suggestions for rehearing in banc. See, e. g., United States v. Buljubasic, 828 F. 2d 426 (CA7 1987).

[18] Rule 35(c) explicitly states that the pendency of a suggestion for rehearing in banc shall not "affect the finality of the judgment of the court of appeals or stay the issuance of the mandate." Rule 41(a) requires the mandate of the Court of Appeals to issue "21 days after the entry of judgment unless the time is shortened or enlarged by order," but provides that a timely petition for panel rehearing "will stay the mandate until disposition of the petition unless otherwise ordered by the court." This case thus stands in contrast to United States v. Buljubasic, supra, where the Court of Appeals allowed the mandate to issue even though the appellant had filed a "Petition for Rehearing En Banc." In that case, the Court of Appeals treated the "Petition" as only a suggestion for rehearing in banc and allowed the mandate to issue, as it was required to do under Rule 35(c).

[19] The Court of Appeals "affirm[ed] the actions that the court has taken to this point," but detailed "the procedures which the district court should use in the future." 855 F. 2d, at 1314. The Court of Appeals' discussion of the procedures to be used in the future was not dictum, for the court had before it the State's appeal from the entire funding order of the District Court. The Court of Appeals required the District Court to use the less obtrusive procedures beginning with the fiscal year commencing after the remand but did not require the District Court to reverse the tax increase that it had imposed for prior fiscal years. See id., at 1299 ("[W]e modify [the order's] future operation to more closely comport with limitations upon our judicial authority"); id., at 1318 ("We . . . remand for further modifications as provided in this opinion"). This interpretation is supported by an order of the District Court issued on January 3, 1989. The District Court took no action to reverse its tax increase through fiscal year 1988-1989. The court also denied as premature a motion by KCMSD to approve a proposed property tax levy of $4.23 for fiscal year 1989-1990. The court then directed KCMSD to "approve a property tax levy rate for 1989 at a later date when financial calculations for the 1989-1990 school year are clear and submit the proposed levy rate to the Court for approval at that time." App. 511-512. This direction indicates that the District Court understood that it was now obliged to allow KCMSD to set the tax levy itself. The District Court's approval of the levy was necessary because the Court of Appeals had required it to establish a maximum for the levy. See 855 F. 2d, at 1314.

[20] See Tr. of Oral Arg. 14. This suggestion was also made by the judge dissenting below and by Clark Group. See 855 F. 2d, at 1318 (Lay, C. J., concurring and dissenting); Brief for Icelean Clark et al. as Amici Curiae 25-26.

[21] The old cases recognized two exceptions to this rule, neither of which is relevant here. First, it was held that federal courts could not by writ of mandamus compel state officers to release funds in the state treasury sufficient to satisfy state bond obligations. The Court viewed this attempt to employ the writ of mandamus as a ruse to avoid the Eleventh Amendment's bar against exercising federal jurisdiction over the State. See Louisiana v. Jumel, 107 U. S. 711, 720-721 (1883). This holding has no application to this case, for the Eleventh Amendment does not bar federal courts from imposing on the States the costs of securing prospective compliance with a desegregation order, Milliken v. Bradley, 433 U. S. 267, 290 (1977), and does not afford local school boards like KCMSD immunity from suit, Mt. Healthy City Bd. of Education v. Doyle, 429 U. S. 274, 280-281 (1977). Second, it was held that the writ of mandamus would not lie to compel the collection of taxes when there was no person against whom the writ could operate. See Meriwether v. Garrett, 102 U. S. 472, 501 (1880); id., at 515 (Field, J., concurring in judgment) ("[W]hen the law is gone, and the office of the collector abolished, there is nothing upon which the courts can act"); cf. Wolff v. New Orleans, 103 U. S. 358, 368 (1881) (distinguishing Meriwether, supra). This exception also has no application to this case, where there are state and local officials invested with authority to collect and disburse the property tax and where, as matters now stand, the District Court need only prevent those officials from applying state law that would interfere with the willing levy of property taxes by KCMSD.

[22] United States v. County of Macon, 99 U. S. 582 (1879), held that mandamus would not lie to force a local government to levy taxes in excess of the limits contained in a statute in effect at the time the county incurred its bonded indebtedness, for the explicit limitation on the taxing power became part of the contract, the bondholders had notice of the limitation and were deemed to have consented to it, and hence no contractual remedy was unconstitutionally impaired by observing the statute. County of Macon has little relevance to the present case, for KCMSD's obligation to fund the desegregation remedy arises from its operation of a segregated school system in violation of the Constitution, not from a contract between KCMSD and respondents.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

[72] [72] Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. O'Connor, J., post, p. 103, and Thomas, J., post, p. 114, filed concurring opinions. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 138. Ginsburg, J., filed a dissenting opinion, post, p. 175.

John R. Munich, Chief Counsel for Litigation, argued the cause for petitioners State of Missouri et al. With him on the briefs were Jeremiah W. (Jay) Nixon, Attorney General, James R. Layton, Michael J. Fields, and Bart A. Matanic, [73] Assistant Attorneys General, Carter G. Phillips, Mark D. Hopson, and Janet M. Letson.

Theodore M. Shaw argued the cause for respondents. With him on the briefs for respondents Jenkins et al. were Arthur A. Benson II, James S. Liebman, and Elaine R. Jones. Allen R. Snyder, Patricia A. Brannan, John W. Borkowski, Scott A. Raisher, and Frederick O. Wickham filed a brief for respondents Kansas City, Missouri, School District et al.

Deputy Solicitor General Bender argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Assistant Attorney General Patrick, Irving L. Gornstein, Dennis J. Dimsey, and Mark L. Gross.^[2]

Chief Justice Rehnquist delivered the opinion of the Court.

As this school desegregation litigation enters its 18th year, we are called upon again to review the decisions of the lower courts. In this case, the State of Missouri has challenged the District Court's order of salary increases for virtually all instructional and noninstructional staff within the Kansas City, Missouri, School District (KCMSD) and the District Court's order requiring the State to continue to fund remedial "quality education" programs because student achievement levels were still "at or below national norms at many grade levels."

[74] I

A general overview of this litigation is necessary for proper resolution of the issues upon which we granted certiorari. This case has been before the same United States District Judge since 1977. Missouri v. Jenkins, 491 U. S. 274, 276 (1989) (Jenkins I). In that year, the KCMSD, the school board, and the children of two school board members brought suit against the State and other defendants. Plaintiffs alleged that the State, the surrounding suburban school districts (SSD's), and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. The District Court realigned the KCMSD as a nominal defendant and certified as a class, present and future KCMSD students. The KCMSD brought a cross-claim against the State for its failure to eliminate the vestiges of its prior dual school system.

After a trial that lasted 7 12months, the District Court dismissed the case against the federal defendants and the SSD's, but determined that the State and the KCMSD were liable for an intradistrict violation, i. e., they had operated a segregated school system within the KCMSD. Jenkins v. Missouri, 593 F. Supp. 1485 (WD Mo. 1984). The District Court determined that prior to 1954 "Missouri mandated segregated schools for black and white children." Id., at 1490. Furthermore, the KCMSD and the State had failed in their affirmative obligations to eliminate the vestiges of the State's dual school system within the KCMSD. Id., at 1504.

In June 1985, the District Court issued its first remedial order and established as its goal the "elimination of all vestiges of state imposed segregation." Jenkins v. Missouri, 639 F. Supp. 19, 23 (WD Mo. 1985). The District Court determined that "[s]egregation ha[d] caused a system wide reduction in student achievement in the schools of the KCMSD." Id., at 24. The District Court made no particularized findings regarding the extent that student achievement [75] had been reduced or what portion of that reduction was attributable to segregation. The District Court also identified 25 schools within the KCMSD that had enrollments of 90% or more black students. Id., at 36.

The District Court, pursuant to plans submitted by the KCMSD and the State, ordered a wide range of quality education programs for all students attending the KCMSD. First, the District Court ordered that the KCMSD be restored to an AAA classification, the highest classification awarded by the State Board of Education. Id., at 26. Second, it ordered that the number of students per class be reduced so that the student-to-teacher ratio was below the level required for AAA standing. Id., at 28-29. The District Court justified its reduction in class size as

"an essential part of any plan to remedy the vestiges of segregation in the KCMSD. Reducing class size will serve to remedy the vestiges of past segregation by increasing individual attention and instruction, as well as increasing the potential for desegregative educational experiences for KCMSD students by maintaining and attracting non-minority enrollment." Id., at 29.

The District Court also ordered programs to expand educational opportunities for all KCMSD students: full-day kindergarten; expanded summer school; before- and after-school tutoring; and an early childhood development program. Id., at 30-33. Finally, the District Court implemented a statefunded "effective schools" program that consisted of substantial yearly cash grants to each of the schools within the KCMSD. Id., at 33-34. Under the "effective schools" program, the State was required to fund programs at both the 25 racially identifiable schools as well as the 43 other schools within the KCMSD. Id., at 33.

The KCMSD was awarded an AAA rating in the 1987— 1988 school year, and there is no dispute that since that time it has "`maintained and greatly exceeded AAA requirements.' [76] " 19 F. 3d 393, 401 (CA8 1994) (Beam, J., dissenting from denial of rehearing en banc). The total cost for these quality education programs has exceeded $220 million. Missouri Department of Elementary and Secondary Education, KCMSD Total Desegregation Program Expenditures (Sept. 30, 1994) (Desegregation Expenditures).

The District Court also set out to desegregate the KCMSD but believed that "[t]o accomplish desegregation within the boundary lines of a school district whose enrollment remains 68.3% black is a difficult task." 639 F. Supp., at 38. Because it had found no interdistrict violation, the District Court could not order mandatory interdistrict redistribution of students between the KCMSD and the surrounding SSD's. Ibid.; see also Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I). The District Court refused to order additional mandatory student reassignments because they would "increase the instability of the KCMSD and reduce the potential for desegregation." 639 F. Supp., at 38. Relying on favorable precedent from the Eighth Circuit, the District Court determined that "[a]chievement of AAA status, improvement of the quality of education being offered at the KCMSD schools, magnet schools, as well as other components of this desegregation plan can serve to maintain and hopefully attract non-minority student enrollment." Ibid.

In November 1986, the District Court approved a comprehensive magnet school and capital improvements plan and held the State and the KCMSD jointly and severally liable for its funding. 1 App. 130-193. Under the District Court's plan, every senior high school, every middle school, and one-half of the elementary schools were converted into magnet schools.^[3] Id., at 131. The District Court adopted the [77] magnet-school program to "provide a greater educational opportunity to all KCMSD students," id., at 131-132, and because it believed "that the proposed magnet plan [was] so attractive that it would draw non-minority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs." Id., at 132. The District Court felt that "[t]he long-term benefit of all KCMSD students of a greater educational opportunity in an integrated environment is worthy of such an investment." Id., at 133. Since its inception, the magnet-school program has operated at a cost, including magnet transportation, in excess of $448 million. See Desegregation Expenditures. In April 1993, the District Court considered, but ultimately rejected, the plaintiffs' and the KCMSD's proposal seeking approval of a longrange magnet renewal program that included a 10-year budget of well over $500 million, funded by the State and the KCMSD on a joint-and-several basis. App. to Pet. for Cert. A-123.

In June 1985, the District Court ordered substantial capital improvements to combat the deterioration of the KCMSD's facilities. In formulating its capital-improvements plan, the District Court dismissed as "irrelevant" the "State's argument that the present condition of the facilities [was] not traceable to unlawful segregation." 639 F. Supp., at 40. Instead, the District Court focused on its responsibility to "remed[y] the vestiges of segregation" and to "implemen[t] a desegregation plan which w[ould] maintain and attract non-minority enrollment." Id., at 41. The initial phase of the capital-improvements plan cost $37 million. Ibid. The District Court also required the KCMSD to present further capital-improvements proposals "in order to bring its facilities to a point comparable with the facilities in neighboring suburban school districts." Ibid. In November 1986, the District Court approved further capital improvements in order to remove the vestiges of racial segregation [78] and "to . . . attract non-minority students back to the KCMSD." App. to Pet. for Cert. A-133 to A-134.

In September 1987, the District Court adopted, for the most part, KCMSD's long-range capital-improvements plan at a cost in excess of $187 million. Jenkins v. Missouri, 672 F. Supp. 400, 408 (WD Mo. 1987). The plan called for the renovation of approximately 55 schools, the closure of 18 facilities, and the construction of 17 new schools. Id., at 405. The District Court rejected what it referred to as the "`patch and repair' approach proposed by the State" because it "would not achieve suburban comparability or the visual attractiveness sought by the Court as it would result in floor coverings with unsightly sections of mismatched carpeting and tile, and individual walls possessing different shades of paint." Id., at 404. The District Court reasoned that "if the KCMSD schools underwent the limited renovation proposed by the State, the schools would continue to be unattractive and substandard, and would certainly serve as a deterrent to parents considering enrolling their children in KCMSD schools." Id., at 405. As of 1990, the District Court had ordered $260 million in capital improvements. Missouri v. Jenkins, 495 U. S. 33, 61 (1990) (Jenkins II) (Kennedy, J., concurring in part and concurring in judgment). Since then, the total cost of capital improvements ordered has soared to over $540 million.

As part of its desegregation plan, the District Court has ordered salary assistance to the KCMSD. In 1987, the District Court initially ordered salary assistance only for teachers within the KCMSD. Since that time, however, the District Court has ordered salary assistance to all but three of the approximately 5,000 KCMSD employees. The total cost of this component of the desegregation remedy since 1987 is over $200 million. See Desegregation Expenditures.

The District Court's desegregation plan has been described as the most ambitious and expensive remedial program in the history of school desegregation. 19 F. 3d, at 397 [79] (Beam, J., dissenting from denial of rehearing en banc). The annual cost per pupil at the KCMSD far exceeds that of the neighboring SSD's or of any school district in Missouri. Nevertheless, the KCMSD, which has pursued a "friendly adversary" relationship with the plaintiffs, has continued to propose ever more expensive programs.^[4] As a result, the desegregation costs have escalated and now are approaching an annual cost of $200 million. These massive expenditures have financed

"high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; green houses and vivariums; a 25-acre farm with an air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities." Jenkins II, 495 U. S., at 77 (Kennedy, J., concurring in part and concurring in judgment).

Not surprisingly, the cost of this remedial plan has "far exceeded KCMSD's budget, or for that matter, its authority to tax." Id., at 60. The State, through the operation of jointand-several liability, has borne the brunt of these costs. The District Court candidly has acknowledged that it has "allowed the District planners to dream" and "provided the [80] mechanism for th[ose] dreams to be realized." App. to Pet. for Cert. A-133. In short, the District Court "has gone to great lengths to provide KCMSD with facilities and opportunities not available anywhere else in the country." Id., at A-115.

II

With this background, we turn to the present controversy. First, the State has challenged the District Court's requirement that it fund salary increases for KCMSD instructional and noninstructional staff. Id., at A-76 to A-93 (District Court's Order of June 15, 1992); id., at A-94 to A-109 (District Court's Order of June 30, 1993); id., at A-110 to A-121 (District Court's Order of July 30, 1993). The State claimed that funding for salaries was beyond the scope of the District Court's remedial authority. Id., at A-86. Second, the State has challenged the District Court's order requiring it to continue to fund the remedial quality education programs for the 1992-1993 school year. Id., at A-69 to A-75 (District Court's Order of June 17, 1992). The State contended that under Freeman v. Pitts, 503 U. S. 467 (1992), it had achieved partial unitary status with respect to the quality education programs already in place. As a result, the State argued that the District Court should have relieved it of responsibility for funding those programs.

The District Court rejected the State's arguments. It first determined that the salary increases were warranted because "[h]igh quality personnel are necessary not only to implement specialized desegregation programs intended to `improve educational opportunities and reduce racial isolation', but also to `ensure that there is no diminution in the quality of its regular academic program.' " App. to Pet. for Cert. A-87 (citations omitted). Its "ruling [was] grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD." Id., at A-90. The District Court did not address the State's Freeman arguments; nevertheless, it ordered the State to continue to [81] fund the quality education programs for the 1992-1993 school year. See App. to Pet. for Cert. A-70.

The Court of Appeals for the Eighth Circuit affirmed. 11 F. 3d 755 (1993). It rejected the State's argument that the salary increases did not directly address and relate to the State's constitutional violation and that "low teacher salaries d[id] not flow from any earlier constitutional violations by the State." Id., at 767. In doing so, it observed that "[i]n addition to compensating the victims, the remedy in this case was also designed to reverse white flight by offering superior educational opportunities." Ibid.; see also 13 F. 3d 1170, 1172 (1993) (affirming the District Court's June 30, 1993, and July 30, 1993, orders).

The Court of Appeals concluded that the District Court implicitly had rejected the State's Freeman arguments in spite of the fact that it had failed "to articulate . . . even a conclusory rejection" of them. 11 F. 3d, at 765. It looked to the District Court's comments from the bench and its later orders to "illuminate the June 1992 order." Id., at 761. The Court of Appeals relied on statements made by the District Court during a May 28, 1992, hearing:

"The Court's goal was to integrate the Kansas City, Missouri, School District to the maximum degree possible, and all these other matters were elements to be used to try to integrate the Kansas City, Missouri, schools so the goal is integration. That's the goal. And a high standard of quality education. The magnet schools, the summer school program and all these programs are tied to that goal, and until such time as that goal has been reached, then we have not reached the goal. . . . The goal is to integrate the Kansas City, Missouri, School district. So I think we are wasting our time." 2 App. 482 (emphasis added).

See 11 F. 3d, at 761. Apparently, the Court of Appeals extrapolated from the findings regarding the magnet-school [82] program and later orders and imported those findings wholesale to reject the State's request for a determination of partial unitary status as to the quality education programs. See id., at 761-762. It found significant the District Court's determination that although "there had been a trend of improvement in academic achievement, . . . the school district was far from reaching its maximum potential because KCMSD is still at or below national norms at many grade levels." Ibid. It went on to say that with respect to quality education, "implementation of programs in and of itself is not sufficient. The test, after all, is whether the vestiges of segregation, here the system wide reduction in student achievement, have been eliminated to the greatest extent practicable. The success of quality of education programs must be measured by their effect on the students, particularly those who have been the victims of segregation." Id., at 766.

The Court of Appeals denied rehearing en banc, with five judges dissenting. 19 F. 3d, at 395. The dissent first examined the salary increases ordered by the District Court and characterized "the current effort by the KCMSD and the American Federation of Teachers . . . aided by the plaintiffs, to bypass the collective bargaining process" as "uncalled for" and "probably not an exercise reasonably related to the constitutional violations found by the court." Id., at 399. The dissent also "agree[d] with the [S]tate that logic d[id] not directly relate the pay of parking lot attendants, trash haulers and food handlers . . . to any facet or phase of the desegregation plan or to the constitutional violations." Ibid.

Second, the dissent believed that in evaluating whether the KCMSD had achieved partial unitary status in its quality education programs, the District Court and the panel had

"misrea[d] Freeman and create[d] a hurdle to the withdrawal of judicial intervention from public education that has no support in the law. The district court has, [83] with the approbation of the panel, imbedded a student achievement goal measured by annual standardized tests into its test of whether the KCMSD has built a high-quality educational system sufficient to remedy past discrimination. The Constitution requires no such standard." Id., at 400.

The dissent noted that "KCMSD students have in place a system that offers more educational opportunity than anywhere in America," id., at 403, but that the District Court was "`not satisfied that the District has reached anywhere close to its maximum potential because the District is still at or below national norms at many grade levels,' " ibid. (emphasis added). The dissent concluded that this case, "as it now proceeds, involves an exercise in pedagogical sociology, not constitutional adjudication." Id., at 404.

Because of the importance of the issues, we granted certiorari to consider the following: (1) whether the District Court exceeded its constitutional authority when it granted salary increases to virtually all instructional and noninstructional employees of the KCMSD, and (2) whether the District Court properly relied upon the fact that student achievement test scores had failed to rise to some unspecified level when it declined to find that the State had achieved partial unitary status as to the quality education programs. 512 U. S. 1287 (1994).

III

Respondents argue that the State may no longer challenge the District Court's remedy, and in any event, the propriety of the remedy is not before the Court. Brief for Respondents KCMSD et al. 40-49; Brief for Respondents Jenkins et al. 23. We disagree on both counts. In Jenkins II, we granted certiorari to review the manner in which the District Court had funded this desegregation remedy. 495 U. S., at 37. Because we had denied certiorari on the State's [84] challenge to review the scope of the remedial order, we resisted the State's efforts to challenge the scope of the remedy. Id., at 53; cf. id., at 80 (Kennedy, J., concurring in part and concurring in judgment). Thus, we neither "approv[ed]" nor "disapprov[ed] the Court of Appeals' conclusion that the District Court's remedy was proper." Id., at 53.

Here, however, the State has challenged the District Court's approval of across-the-board salary increases for instructional and noninstructional employees as an action beyond its remedial authority. Pet. for Cert. i.^[5] An analysis of the permissible scope of the District Court's remedial authority is necessary for a proper determination of whether the order of salary increases is beyond the District Court's remedial authority, see Milliken I , 418 U. S., at 738-740, 745, and thus, it is an issue subsidiary to our ultimate inquiry. Cf. Yee v.Escondido, 503 U. S. 519, 537 (1992). Given that the District Court's basis for its salary order was grounded in "improving the desegregative attractiveness of the KCMSD," App. to Pet. for Cert. A-90, we must consider the propriety of that reliance in order to resolve properly the State's challenge to that order. We conclude that a challenge to the scope of the District Court's remedy is fairly included in the question presented. See this Court's Rule 14.1; Procunier v. Navarette, 434 U. S. 555, 560, n. 6 (1978) ("Since consideration of these issues is essential to analysis of the Court of Appeals' [decision] we shall also treat these questions as subsidiary issues `fairly comprised' by the question presented"); see also United States v. Mendenhall, 446 U. S. 544, 551-552, n. 5 (1980) (opinion of Stewart, J.) (Where [85] the determination of a question "is essential to the correct disposition of the other issues in the case, we shall treat it as `fairly comprised' by the questions presented in the petition for certiorari"); cf. Yee, supra, at 536-537.

Justice Souter argues that our decision to review the scope of the District Court's remedial authority is both unfair and imprudent. Post, at 147. He claims that factors such as our failure to grant certiorari on the State's challenge to the District Court's remedial authority in 1988 "lulled [respondents] into addressing the case without sufficient attention to the foundational issue, and their lack of attention has now infected the Court's decision." Post, at 139. Justice Souter concludes that we have "decide[d] the issue without any warning to respondents." Post, at 147. These arguments are incorrect.

Of course, "[t]he denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times." United States v. Carver, 260 U. S. 482, 490 (1923). A fortiori, far from lulling respondents into a false sense of security, our previous decision in Jenkins v. Missouri put respondents on notice that the Court had not affirmed the validity of the District Court's remedy, 495 U. S., at 53, and that at least four Justices of the Court questioned that remedy, id., at 75-80 (Kennedy, J., concurring in part and concurring in judgment).

With respect to the specific orders at issue here, the State has once again challenged the scope of the District Court's remedial authority. The District Court was aware of this fact. See App. to Pet. for Cert. A-86 ("The State claims that the Court should not approve desegregation funding for salaries because such funding would be beyond the scope of the Court's remedial authority") (District Court's June 25, 1992, order); id., at A-97 ("The State has argued repeatedly and currently on appeal that the salary component is not a valid component of the desegregation remedy") (District [86] Court's June 30, 1993, order). The Court of Appeals also understood that the State had renewed this challenge. See 11 F. 3d, at 766 ("The State argues first that the salary increase remedy sought exceeded that necessary to remedy the constitutional violations, and alternatively, that if the district court had lawful authority to impose the increases, it abused its discretion in doing so"); id., at 767 ("The State's legal argument is that the district court should have denied the salary increase funding because it is contrary to Milliken [v. Bradley, 433 U. S. 267 (1977),] and Swann [v. CharlotteMecklenburg Bd. of Ed., 402 U. S. 1 (1971),] in that it does not directly address and relate to the State's constitutional violation"); 13 F. 3d, at 1172 ("We reject the State's argument that the salary order is contrary to Milliken II and Swann "). The State renewed this same challenge in its petition for certiorari, Pet. for Cert. i, and argued here that the District Court's salary orders were beyond the scope of its remedial authority. Brief for Petitioners 27-32; Reply Brief for Petitioners 6-12. In the 100 pages of briefing provided by respondents, they have argued that the State's challenge to the scope of the District Court's remedial authority is not fairly presented and is meritless. See Brief for Respondents KCMSD et al. 40-49; Brief for Respondents Jenkins et al. 2-21, 44-49; cf. Reply Brief for Petitioners 2 ("[R]espondents. . . urge the Court to dismiss the writ as improvidently granted. This is not surprising; respondents cannot defend the excesses of the courts below").

In short, the State has challenged the scope of the District Court's remedial authority. The District Court, the Court of Appeals, and respondents have recognized this to be the case. Contrary to Justice Souter's arguments, there is no unfairness or imprudence in deciding issues that have been passed upon below, are properly before us, and have been briefed by the parties. We turn to the questions presented.

Almost 25 years ago, in Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971), we dealt with the authority of a district court to fashion remedies for a school district that [87] had been segregated in law in violation of the Equal Protection Clause of the Fourteenth Amendment. Although recognizing the discretion that must necessarily adhere in a district court in fashioning a remedy, we also recognized the limits on such remedial power:

"[E]limination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of the school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown [v. Board of Education, 347 U. S. 483 (1954),] to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination." Id., at 22— 23.

Three years later, in Milliken I , 418 U. S. 717 (1974), we held that a District Court had exceeded its authority in fashioning interdistrict relief where the surrounding school districts had not themselves been guilty of any constitutional violation. Id., at 746-747. We said that a desegregation remedy "is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Id. , at 746. "[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy." Id., at 745. We also rejected "[t]he suggestion . . . that schools which have a majority of Negro students are not `desegregated,' whatever the makeup of the school district's population and however neutrally the district lines have been drawn and administered." Id., at 747, n. 22; see also Freeman, 503 U. S., at 474 ("[A] critical beginning point is the degree of racial imbalance in the school district, that is to say a comparison of the proportion of majority to minority students in individual schools with the proportions of the races in the district as a whole").

[88] Three years later, in Milliken v. Bradley, 433 U. S. 267 (1977) (Milliken II), we articulated a three-part framework derived from our prior cases to guide district courts in the exercise of their remedial authority.

"In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S., at 16. The remedy must therefore be related to `the condition alleged to offend the Constitution. . . .' Milliken I, 418 U. S., at 738. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible `to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Id., at 746. Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." Id., at 280-281 (footnotes omitted).

We added that the "principle that the nature and scope of the remedy are to be determined by the violation means simply that federal-court decrees must directly address and ;relate to the constitutional violation itself." Id., at 281-282. In applying these principles, we have identified "student assignments, . . . `faculty, staff, transportation, extracurricular activities and facilities' " as the most important indicia of a racially segregated school system. Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 250 (1991) (quoting Green v. School Bd. of New Kent Cty., 391 U. S. 430, 435 (1968)).

Because "federal supervision of local school systems was intended as a temporary measure to remedy past discrimination," Dowell, supra, at 247, we also have considered the showing that must be made by a school district operating under a desegregation order for complete or partial relief from that order. In Freeman, we stated that

[89] "[a]mong the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: [1] whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; [2] whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and [3] whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the courts' decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance." 503 U. S., at 491.

The ultimate inquiry is "`whether the [constitutional violator] ha[s] complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.' " Id., at 492 (quoting Dowell, supra, at 249-250).

Proper analysis of the District Court's orders challenged here, then, must rest upon their serving as proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct and their eventual restoration of "state and local authorities to the control of a school system that is operating in compliance with the Constitution." 503 U. S., at 489. We turn to that analysis.

The State argues that the order approving salary increases is beyond the District Court's authority because it was crafted to serve an "interdistrict goal," in spite of the fact that the constitutional violation in this case is "intradistrict" in nature. Brief for Petitioners 19. "[T]he nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation." Milliken II, supra, at 280; Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 434 (1976) ("`[T]here are limits' beyond which a [90] court may not go in seeking to dismantle a dual school system"). The proper response to an intradistrict violation is an intradistrict remedy, see Milliken I, supra, at 746-747; Milliken II, supra, at 280, that serves to eliminate the racial identity of the schools within the affected school district by eliminating, as far as practicable, the vestiges of de jure segregation in all facets of their operations. See Dowell, supra, at 250; see also Swann, 402 U. S., at 18-19; Green, supra, at 435.

Here, the District Court has found, and the Court of Appeals has affirmed, that this case involved no interdistrict constitutional violation that would support interdistrict relief. Jenkins II, 495 U. S., at 37, n. 3 ("The District Court also found that none of the alleged discriminatory actions had resulted in lingering interdistrict effects and so dismissed the suburban school districts and denied interdistrict relief"); id., at 76 (Kennedy, J., concurring in part and concurring in judgment) ("[T]here was no interdistrict constitutional violation that would support mandatory interdistrict relief").^[6] Thus, the proper response by the District Court should have been to eliminate to the extent practicable the vestiges of prior de jure segregation within the KCMSD: a system wide reduction in student achievement and the existence of 25 racially identifiable schools with a population of over 90% black students. 639 F. Supp., at 24, 36.

[91] The District Court and Court of Appeals, however, have felt that because the KCMSD's enrollment remained 68.3% black, a purely intra district remedy would be insufficient. Id., at 38; Jenkins v. Missouri, 855 F. 2d 1296, 1302 (CA8 1988) ("[V]oluntary interdistrict remedies may be used to make meaningful integration possible in a predominantly minority district"). But, as noted in Milliken I, 418 U. S. 717 (1974), we have rejected the suggestion "that schools which have a majority of Negro students are not `desegregated' whatever the racial makeup of the school district's population and however neutrally the district lines have been drawn and administered." Id., at 747, n. 22; see Milliken II, 433 U. S., at 280, n. 14 ("[T]he Court has consistently held that the Constitution is not violated by racial imbalance in the schools, without more"); Spangler, supra, at 434.^[7]

Instead of seeking to remove the racial identity of the various schools within the KCMSD, the District Court has set out on a program to create a school district that was equal to or superior to the surrounding SSD's. Its remedy has focused on "desegregative attractiveness," coupled with "suburban comparability." Examination of the District Court's reliance on "desegregative attractiveness" and "suburban comparability" is instructive for our ultimate resolution of the salary-order issue.

The purpose of desegregative attractiveness has been not only to remedy the systemwide reduction in student achievement, but also to attract nonminority students not presently enrolled in the KCMSD. This remedy has included an elaborate program of capital improvements, course enrichment, [92] and extracurricular enhancement not simply in the formerly identifiable black schools, but in schools throughout the district. The District Court's remedial orders have converted every senior high school, every middle school, and one-half of the elementary schools in the KCMSD into "magnet" schools. The District Court's remedial order has all but made the KCMSD itself into a magnet district.

We previously have approved of intradistrict desegregation remedies involving magnet schools. See, e. g., Milliken II, supra, at 272. Magnet schools have the advantage of encouraging voluntary movement of students within a school district in a pattern that aids desegregation on a voluntary basis, without requiring extensive busing and redrawing of district boundary lines. Cf. Jenkins II, supra, at 59-60 (Kennedy, J., concurring in part and concurring in judgment) (citing Milliken II, supra, at 272). As a component in an intradistrict remedy, magnet schools also are attractive because they promote desegregation while limiting the withdrawal of white student enrollment that may result from mandatory student reassignment. See 639 F. Supp., at 37; cf. United States v. Scotland Neck City Bd. of Ed., 407 U. S. 484, 491 (1972).

The District Court's remedial plan in this case, however, is not designed solely to redistribute the students within the KCMSD in order to eliminate racially identifiable schools within the KCMSD. Instead, its purpose is to attract nonminority students from outside the KCMSD schools. But this inter district goal is beyond the scope of the intra district violation identified by the District Court. In effect, the District Court has devised a remedy to accomplish indirectly what it admittedly lacks the remedial authority to mandate directly: the interdistrict transfer of students. 639 F. Supp., at 38 ("`[B]ecause of restrictions on this Court's remedial powers in restructuring the operations of local and state government entities,' any mandatory plan which would go beyond the boundary lines of KCMSD goes far beyond [93] the nature and extent of the constitutional violation [that] this Court found existed").

In Milliken I we determined that a desegregation remedy that would require mandatory interdistrict reassignment of students throughout the Detroit metropolitan area was an impermissible interdistrict response to the intradistrict violation identified. 418 U. S., at 745. In that case, the lower courts had ordered an interdistrict remedy because "`any less comprehensive a solution than a metropolitan area plan would result in an all black school system immediately surrounded by practically all white suburban school systems, with an overwhelmingly white majority population in the total metropolitan area.' " Id., at 735. We held that before a district court could order an interdistrict remedy, there must be a showing that "racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation." Id., at 745. Because the record "contain[ed] evidence of de jure segregated conditions only in the Detroit Schools" and there had been "no showing of significant violation by the 53 outlying school districts and no evidence of interdistrict violation or effect," we reversed the District Court's grant of interdistrict relief. Ibid.

Justice Stewart provided the Court's fifth vote and wrote separately to underscore his understanding of the decision. In describing the requirements for imposing an "interdistrict" remedy, Justice Stewart stated: "Were it to be shown, for example, that state officials had contributed to the separation of the races by drawing or redrawing school district lines; by transfer of school units between districts; or by purposeful, racially discriminatory use of state housing or zoning laws, then a decree calling for the transfer of pupils across district lines or for restructuring of district lines might well be appropriate. In this case, however, no such interdistrict violation was shown." Id., at 755 (concurring opinion) (citations omitted). Justice Stewart concluded that the Court [94] properly rejected the District Court's interdistrict remedy because "[t]here were no findings that the differing racial composition between schools in the city and in the outlying suburbs was caused by official activity of any sort." Id., at 757.

What we meant in Milliken I by an interdistrict violation was a violation that caused segregation between adjoining districts. Nothing in Milliken I suggests that the District Court in that case could have circumvented the limits on its remedial authority by requiring the State of Michigan, a constitutional violator, to implement a magnet program designed to achieve the same interdistrict transfer of students that we held was beyond its remedial authority. Here, the District Court has done just that: created a magnet district of the KCMSD in order to serve the inter district goal of attracting nonminority students from the surrounding SSD's and redistributing them within the KCMSD. The District Court's pursuit of "desegregative attractiveness" is beyond the scope of its broad remedial authority. See Milliken II, 433 U. S., at 280.

Respondents argue that the District Court's reliance upon desegregative attractiveness is justified in light of the District Court's statement that segregation has "led to white flight from the KCMSD to suburban districts." 1 App. 126; see Brief for Respondents KCMSD et al. 44-45, and n. 28; Brief for Respondents Jenkins et al. 47-49.^[8] The lower [95] courts' "findings" as to "white flight" are both inconsistent internally,^[9] and inconsistent with the typical supposition, bolstered here by the record evidence, that "white flight" may result from desegregation, not de jure segregation.^[10] The United States, as amicus curiae, argues that the District Court's finding that "de jure segregation in the KCMSD caused white students to leave the system . . . is not inconsistent with the district court's earlier conclusion that the suburban districts did nothing to cause this white flight and therefore could not be included in a mandatory interdistrict remedy." Brief for United States as Amicus Curiae 19, n. 2; see also post, at 160-164. But the District Court's earlier findings, affirmed by the Court of Appeals, were not so limited:

"[C]ontrary to the argument of [plaintiffs] that the [district court] looked only to the culpability of the SSDs, the scope of the order is far broader. . . . It noted that only the schools in one district were affected and that the remedy must be limited to that system. In examining the cause and effect issue, the court noted that `not only is plaintiff's evidence here blurred as to cause and [96] effect, there is no "careful delineation of the extent of the effect."` .. . The district court thus dealt not only with the issue whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effects. . . . When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met." Jenkins v. Missouri, 807 F. 2d 657, 672 (CA8 1986) (affirming, by an equally divided court, the District Court's findings and conclusion that there was no interdistrict violation or interdistrict effect) (en banc).^[11]

In Freeman, we stated that "[t]he vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied." 503 U. S., at 496. The record here does not support the District Court's reliance on "white flight" as a justification for a permissible expansion of its intradistrict remedial authority through its pursuit of desegregative attractiveness. See Milliken I, 418 U. S., at 746; see also Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 417 (1977) (Dayton I).

Justice Souter claims that our holding effectively overrules Hills v. Gautreaux, 425 U. S. 284 (1976). See also Brief for American Civil Liberties Union et al. as Amici Curiae 18-20. In Gautreaux, the Federal Department of [97] Housing and Urban Development (HUD) was found to have participated, along with a local housing agency, in establishing and maintaining a racially segregated public housing program. 425 U. S., at 286-291. After the Court of Appeals ordered "`the adoption of a comprehensive metropolitan area plan,' " id., at 291, we granted certiorari to consider the "permissibility in light of [Milliken I] of `inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation.' " Gautreaux, supra, at 292. Because the "relevant geographic area for purposes of the [plaintiffs'] housing options [was] the Chicago housing market, not the Chicago city limits," 425 U. S., at 299, we concluded that "a metropolitan area remedy . . . [was] not impermissible as a matter of law," id., at 306. Cf. id., at 298, n. 13 (distinguishing Milliken I, in part, because prior cases had established that racial segregation in schools is "to be dealt with in terms of `an established geographic and administrative school system' ").

In Gautreaux, we did not obligate the District Court to "subjec[t] HUD to measures going beyond the geographical or political boundaries of its violation." Post, at 171— 172. Instead, we cautioned that our holding "should not be interpreted as requiring a metropolitan area order." Gautreaux, 425 U. S., at 306. We reversed appellate fact finding by the Court of Appeals that would have mandated a metropolitan-area remedy, see id., at 294-295, n. 11, and remanded the case back to the District Court "`for additional evidence and for further consideration of the issue of metropolitan area relief,' " id., at 306.

Our decision today is fully consistent with Gautreaux. A district court seeking to remedy an intra district violation that has not "directly caused" significant interdistrict effects, Milliken I, supra, at 744-745, exceeds its remedial authority if it orders a remedy with an interdistrict purpose. This conclusion follows directly from Milliken II, decided one year after Gautreaux, where we reaffirmed the bedrock [98] principle that "federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation." 433 U. S., at 282. In Milliken II, we also emphasized that "federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." Id., at 280-281. Gautreaux, however, involved the imposition of a remedy upon a federal agency. See 425 U. S., at 292, n. 9. Thus, it did not raise the same federalism concerns that are implicated when a federal court issues a remedial order against a State. See Milliken II, supra, at 280-281.

The District Court's pursuit of "desegregative attractiveness" cannot be reconciled with our cases placing limitations on a district court's remedial authority. It is certainly theoretically possible that the greater the expenditure per pupil within the KCMSD, the more likely it is that some unknowable number of nonminority students not presently attending schools in the KCMSD will choose to enroll in those schools. Under this reasoning, however, every increased expenditure, whether it be for teachers, noninstructional employees, books, or buildings, will make the KCMSD in some way more attractive, and thereby perhaps induce nonminority students to enroll in its schools. But this rationale is not susceptible to any objective limitation. Cf. Milliken II, supra, at 280 (remedial decree "must be designed as nearly as possible `to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct' "). This case provides numerous examples demonstrating the limitless authority of the District Court operating under this rationale. See, e. g., App. to Pet. for Cert. A-115 (The District Court has recognized that it has "provide[d] the KCMSD with facilities and opportunities not available anywhere else in the country"); id., at A-140 ("The District has repeatedly requested that the [District Court] provide extravagant [99] programs based on the hopes that they will succeed in the desegregation effort"). In short, desegregative attractiveness has been used "as the hook on which to hang numerous policy choices about improving the quality of education in general within the KCMSD." Jenkins II, 495 U. S., at 76 (Kennedy, J., concurring in part and concurring in judgment).

Nor are there limits to the duration of the District Court's involvement. The expenditures per pupil in the KCMSD currently far exceed those in the neighboring SSD's. 19 F. 3d, at 399 (Beam, J., dissenting from denial of rehearing en banc) (per-pupil costs within the SSD's, excluding capital costs, range from $2,854 to $5,956; per-pupil costs within the KCMSD, excluding capital costs, are $9,412); Brief for Respondent KCMSD et al. 18, n. 5 (arguing that per-pupil costs in the KCMSD, excluding capital costs, are $7,665.18). Sixteen years after this litigation began, the District Court recognized that the KCMSD has yet to offer a viable method of financing the "wonderful school system being built." App. to Pet. for Cert. A-124; cf. Milliken II, supra, at 293 (Powell, J., concurring in judgment) ("Th[e] parties . . . have now joined forces apparently for the purpose of extracting funds from the state treasury"). Each additional program ordered by the District Court—and financed by the State—to increase the "desegregative attractiveness" of the school district makes the KCMSD more and more dependent on additional funding from the State; in turn, the greater the KCMSD's dependence on state funding, the greater its reliance on continued supervision by the District Court. But our cases recognize that local autonomy of school districts is a vital national tradition, Dayton I, 433 U. S., at 410, and that a district court must strive to restore state and local authorities to the control of a school system operating in compliance with the Constitution. See Freeman, 503 U. S., at 489; Dowell, 498 U. S., at 247.

[100] The District Court's pursuit of the goal of "desegregative attractiveness" results in so many imponderables and is so far removed from the task of eliminating the racial identifiability of the schools within the KCMSD that we believe it is beyond the admittedly broad discretion of the District Court. In this posture, we conclude that the District Court's order of salary increases, which was "grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD," App. to Pet. for Cert. A-90, is simply too far removed from an acceptable implementation of a permissible means to remedy previous legally mandated segregation. See Milliken II, 433 U. S., at 280.

Similar considerations lead us to conclude that the District Court's order requiring the State to continue to fund the quality education programs because student achievement levels were still "at or below national norms at many grade levels" cannot be sustained. The State does not seek from this Court a declaration of partial unitary status with respect to the quality education programs. Reply Brief for Petitioners 3. It challenges the requirement of indefinite funding of a quality education program until national norms are met, based on the assumption that while a mandate for significant educational improvement, both in teaching and in facilities, may have been justified originally, its indefinite extension is not.

Our review in this respect is needlessly complicated because the District Court made no findings in its order approving continued funding of the quality education programs. See App. to Pet. for Cert. A-69 to A-75. Although the Court of Appeals later recognized that a determination of partial unitary status requires "careful factfinding and detailed articulation of findings," 11 F. 3d, at 765, it declined to remand to the District Court. Instead it attempted to assemble an adequate record from the District Court's statements [101] from the bench and subsequent orders. Id., at 761. In one such order relied upon by the Court of Appeals, the District Court stated that the KCMSD had not reached anywhere close to its "maximum potential because the District is still at or below national norms at many grade levels." App. to Pet. for Cert. A-131.

But this clearly is not the appropriate test to be applied in deciding whether a previously segregated district has achieved partially unitary status. See Freeman, supra, at 491; Dowell, 498 U. S., at 249-250. The basic task of the District Court is to decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedied to the extent practicable. Under our precedents, the State and the KCMSD are "entitled to a rather precise statement of [their] obligations under a desegregation decree." Id., at 246. Although the District Court has determined that "[s]egregation has caused a system wide reduction in achievement in the schools of the KCMSD," 639 F. Supp., at 24, it never has identified the incremental effect that segregation has had on minority student achievement or the specific goals of the quality education programs. Cf. Dayton I, supra, at 420.^[12]

In reconsidering this order, the District Court should apply our three-part test from Freeman v. Pitts , supra, at 491. The District Court should consider that the State's role with respect to the quality education programs has been limited to the funding, not the implementation, of those programs. As all the parties agree that improved achievement on test scores is not necessarily required for the State to achieve partial unitary status as to the quality education programs, the District Court should sharply limit, if not dispense with, its reliance on this factor. Brief for Respondents [102] KCMSD et al. 34-35; Brief for Respondents Jenkins et al. 26. Just as demographic changes independent of de jure segregation will affect the racial composition of student assignments, Freeman, 503 U. S., at 494-495, so too will numerous external factors beyond the control of the KCMSD and the State affect minority student achievement. So long as these external factors are not the result of segregation, they do not figure in the remedial calculus. See Spangler, 427 U. S., at 434; Swann, 402 U. S., at 22. Insistence upon academic goals unrelated to the effects of legal segregation unwarrantably postpones the day when the KCMSD will be able to operate on its own.

The District Court also should consider that many goals of its quality education plan already have been attained: the KCMSD now is equipped with "facilities and opportunities not available anywhere else in the country." App. to Pet. for Cert. A-115. KCMSD schools received an AAA rating eight years ago, and the present remedial programs have been in place for seven years. See 19 F. 3d, at 401 (Beam, J., dissenting from denial of rehearing en banc). It may be that in education, just as it may be in economics, a "rising tide lifts all boats," but the remedial quality education program should be tailored to remedy the injuries suffered by the victims of prior de jure segregation. See Milliken II, supra, at 287. Minority students in kindergarten through grade 7 in the KCMSD always have attended AAArated schools; minority students in the KCMSD that previously attended schools rated below AAA have since received remedial education programs for a period of up to seven years.

On remand, the District Court must bear in mind that its end purpose is not only "to remedy the violation" to the extent practicable, but also "to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." Freeman, supra, at 489.

[103] The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice O'Connor, concurring.

Because "[t]he mere fact that one question must be answered before another does not insulate the former from Rule 14.1(a)," Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 404 (1995) (O'Connor, J., dissenting), I reject the State's contention that the propriety of the District Court's remedy is fairly included in the question whether student achievement is a valid measure of partial unitary status as to the quality education program, Brief for Petitioners 18.

The State, however, also challenges the District Court's order setting salaries for all but 3 of the 5,000 persons employed by the Kansas City, Missouri, School District (KCMSD). In that order, the court stated: "[T]he basis for this Court's ruling is grounded in remedying the vestiges of segregation by improving the desegregative attractiveness of the KCMSD. In order to improve the desegregative attractiveness of the KCMSD, the District must hire and retain high quality teachers, administrators and staff." App. to Pet. for Cert. A-90. The question presented in the petition for certiorari asks whether the order comports with our cases requiring that remedies "address and relate to the constitutional violation and be tailored to cure the condition that offends the Constitution," Pet. for Cert. i. Thus, the State asks not only whether salary increases are an appropriate means to achieve the District Court's goal of desegregative attractiveness, but also whether that goal itself legitimately relates to the predicate constitutional violation. The propriety of desegregative attractiveness as a remedial purpose, therefore, is not simply an issue "prior to the clearly presented question," Lebron, supra, at 382; it is an issue presented in the question itself and, as such, is one that [104] we appropriately and necessarily consider in answering that question.

Beyond the plain words of the question presented, the State's opening brief placed respondents on notice of its argument; fully 25 of the State's 30 pages of discussion were devoted to desegregative attractiveness and suburban comparability. See Brief for Petitioners 19-45. Such focus should not come as a surprise. At every stage of this litigation, as the Court notes, ante, at 85-86, the State has questioned whether the salary increase order exceeded the nature and scope of the constitutional violation. In disposing of the argument, the lower courts explicitly relied on the need for desegregative attractiveness and suburban comparability. See, e. g., 13 F. 3d, 1170, 1172 (CA8 1993) ("The significant finding of the court with respect to the earlier funding order was that the salary increases were essential to comply with the court's desegregation orders, and that high quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD"); 11 F. 3d 755, 767 (CA8 1993) ("In addition to compensating the victims, the remedy in this case was also designed to reverse white flight by offering superior educational opportunities").

Given the State's persistence and the specificity of the lower court decisions, respondents would have ignored the State's arguments on white flight and desegregative attractiveness at their own peril. But they did not do so, and instead engaged those arguments on the merits. See Brief for Respondents KCMSD et al. 44-49; Brief for Respondents Jenkins et al. 41-49. Perhaps the response was not made as artfully and completely as the dissenting Justices would like, but it was made nevertheless; whatever the cause of respondents' supposed failure to appreciate "what was really at stake," post, at 139 (Souter, J., dissenting), it is certainly not lack of fair notice.

Given such notice, there is no unfairness to the Court resolving the issue. Unlike Bray v. Alexandria Women's [105] Health Clinic, 506 U. S. 263 (1993), for example, where in order to decide a particular question, one would have had to "find in the complaint claims that the respondents themselves have admitted are not there; . . . resolve a question not presented to, or ruled on by, any lower court; . . . revise the rule that it is the petition for certiorari (not the brief in opposition and later briefs) that determines the questions presented; and . . . penalize the parties for not addressing an issue on which the Court specifically denied supplemental briefing," id. , at 280-281, in this case one need only read the opinions below to see that the question of desegregative attractiveness was presented to and passed upon by the lower courts; the petition for certiorari to see that it was properly presented; and the briefs to see that it was fully argued on the merits. If it could be thought that deciding the question in Bray presented no "unfairness" because it "was briefed, albeit sparingly, by the parties prior to the first oral argument," id., at 291 (Souter, J., concurring in judgment in part and dissenting in part), there should hardly be cause to cry foul here. The Court today transgresses no bounds of orderly adjudication in resolving a genuine dispute that is properly presented for its decision.

On the merits, the Court's resolution of the dispute comports with Hills v. Gautreaux, 425 U. S. 284 (1976). There, we held that there is no "per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred," id., at 298. This holding follows from our judgment in Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I), that an interdistrict remedy is permissible, but only upon a showing that "there has been a constitutional violation within one district that produces a significant segregative effect in another district," id., at 745. The per se rule that the petitioner urged upon the Court in Gautreaux would have erected an "arbitrary and mechanical" shield at the city limits, 425 U. S., at [106] 300, and contradicted the holding in Milliken I that remedies may go beyond the boundaries of the constitutional violator. Gautreaux, however, does not eliminate the requirement of Milliken I that such territorial transgression is permissible only upon a showing that the intradistrict constitutional violation produced significant interdistrict segregative effects; if anything, our opinion repeatedly affirmed that principle, see Gautreaux, supra, at 292-294, 296, n. 12. More important for our purposes here, Gautreaux in no way contravenes the underlying principle that the scope of desegregation remedies, even those that are solely intradistrict, is "determined by the nature and extent of the constitutional violation." Milliken I, supra, at 744 (citing Swann v. CharlotteMecklenburg Bd. of Ed., 402 U. S. 1, 16 (1971)). Gautreaux simply does not give federal courts a blank check to impose unlimited remedies upon a constitutional violator.

As an initial matter, Gautreaux itself may not even have concerned a case of interdistrict relief, at least not in the sense that Milliken I and other school desegregation cases have understood it. Our opinion made clear that the authority of the Department of Housing and Urban Development (HUD) extends beyond the Chicago city limits, see Gautreaux, 425 U. S., at 298-299, n. 14, and that HUD's own administrative practice treated the Chicago metropolitan area as an undifferentiated whole, id., at 299. Thus, "[t]he relevant geographic area for purposes of the respondents' housing options is the Chicago housing market, not the Chicago city limits." Ibid. Because the relevant district is the greater metropolitan area, drawing the remedial line at the city limits would be "arbitrary and mechanical." Id., at 300.

Justice Souter, post, at 169-170, makes much of how HUD phrased the question presented: whether it is appropriate to grant "`inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation.' " Gautreaux, supra, at 292. HUD obviously had an interest in phrasing the question thus, since doing so [107] emphasizes the alleged deviation from Milliken I. But the Court was free to reject HUD's characterization of the relevant district, which it did:

"The housing market area `usually extends beyond the city limits' and in the larger markets `may extend into several adjoining counties.' . . . An order against HUD and CHA regulating their conduct in the greater metropolitan area will do no more than take into account HUD's expert determination of the area relevant to the respondents' housing opportunities and will thus be wholly commensurate with `the nature and extent of the constitutional violation.' " 425 U. S., at 299-300 (quoting Milliken I, supra, at 744).

In light of this explicit holding, any suggestion that Gautreaux dispensed with the predicates of Milliken I for interdistrict relief rings hollow.

This distinction notwithstanding, the dissent emphasizes a footnote in Gautreaux, in which we reversed the finding by the Court of Appeals that "either an interdistrict violation or an interdistrict segregative effect may have been present," 425 U. S., at 294, n. 11, and argues that implicit in that holding is a suggestion that district lines may be ignored even absent a showing of interdistrict segregative effects, post, at 173. But no footnote is an island, entire of itself, and our statement in footnote 11 must be read in context. As explained above, we rejected the petitioner's categorical suggestion that "court-ordered metropolitan area relief in this case would be impermissible as a matter of law," 425 U. S., at 305. But the Court of Appeals had gone too far the other way, suggesting that the District Court had to consider metropolitan area relief because the conditions of Milliken I —i. e., interdistrict violation or significant interdistrict segregative effects—had been established as a factual matter. We reversed these ill-advised findings by the appellate court in order to preserve to the District Court its proper role, [108] acknowledged by the dissent, post, at 173-174, n. 8, of finding the necessary facts and exercising its discretion accordingly. Indeed, in footnote 11 itself, we repeated the requirement of a "significant segregative effect in another district," Milliken I, 418 U. S., at 745, and held that the Court of Appeals' "unsupported speculation falls far short of the demonstration" required, Gautreaux, supra, at 295, n. 11. There would have been little need to overrule the Court of Appeals expressly on these factual matters if they were indeed irrelevant.

It is this reading of Hills v. Gautreaux —as an affirmation of, not a deviation from, Milliken I —that the Court of Appeals itself adopted in an earlier phase of this litigation: "Milliken and Hills make clear that we may grant interdistrict relief only to remedy a constitutional violation by the SSD [suburban school district], or to remedy an interdistrict effect in the SSD caused by a constitutional violation in KCMSD." Jenkins v. Missouri, 807 F. 2d 657, 672 (CA8 1986) (en banc). Perhaps Gautreaux was "mentioned only briefly" by the respondents, post, at 174, because the case may actually lend support to the State's argument.

Absent Gautreaux, the dissent hangs on the semantic distinction that "the District Court did not mean by an `intradistrict violation' what the Court apparently means by it today. The District Court meant that the violation within the KCMSD had not led to segregation outside of it, and that no other school districts had played a part in the violation. It did not mean that the violation had not produced effects of any sort beyond the district." Post, at 159. The relevant inquiry under Milliken I and Gautreaux, however, is not whether the intradistrict violation "produced effects of any sort beyond the district," but rather whether such violation caused "significant segregative effects" across district boundaries, Milliken I, supra, at 745. When the Court of Appeals affirmed the District Court's initial remedial order, it specifically stated that the District Court "dealt not only with the issue of whether the SSDs [suburban school [109] districts] were constitutional violators but also whether there were significant interdistrict segregative effects. . . . When it did so, it made specific findings that negate current significant interdistrict effects, and concluded that the requirements of Milliken had not been met." Jenkins v. Missouri, 807 F. 2d, at 672. This holding is unambiguous. Neither the legal responsibility for nor the causal effects of KCMSD's racial segregation transgressed its boundaries, and absent such interdistrict violation or segregative effects, Milliken and Gautreaux do not permit a regional remedial plan.

Justice Souter, however, would introduce a different level of ambiguity, arguing that the District Court took a limited view of what effects are segregative: "[W]hile white flight would have produced significant effects in other school districts, in the form of greatly increased numbers of white students, those effects would not have been segregative beyond the KCMSD, as the departing students were absorbed into wholly unitary systems." Post, at 164. Even if accurate, this characterization of the District Court's findings would be of little significance as to its authority to order interdistrict relief. Such remedy is appropriate only "to eliminate the interdistrict segregation directly caused by the constitutional violation," Milliken I, supra, at 745. Whatever effects KCMSD's constitutional violation may be ventured to have had on the surrounding districts, those effects would justify interdistrict relief only if they were "segregative beyond the KCMSD."

School desegregation remedies are intended, "as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Milliken I, 418 U. S., at 746. In the paradigmatic case of an interdistrict violation, where district boundaries are drawn on the basis of race, a regional remedy is appropriate to ensure integration across district lines. So, too, where surrounding districts contribute to the constitutional [110] violation by affirmative acts intended to segregate the races—e. g., where those districts "arrang[e] for white students residing in the Detroit District to attend schools in Oakland and Macomb Counties," id., at 746-747. Milliken I of course permits interdistrict remedies in these instances of interdistrict violations. Beyond that, interdistrict remedies are also proper where "there has been a constitutional violation within one district that produces a significant segregative effect in another district." Id., at 745. Such segregative effect may be present where a predominantly black district accepts black children from adjacent districts, see id., at 750, or perhaps even where the fact of intradistrict segregation actually causes whites to flee the district, cf. Gautreaux, 425 U. S., at 295, n. 11, for example, to avoid discriminatorily underfunded schools—and such actions produce regional segregation along district lines. In those cases, where a purely intradistrict violation has caused a significant interdistrict segregative effect, certain interdistrict remedies may be appropriate. Where, however, the segregative effects of a district's constitutional violation are contained within that district's boundaries, there is no justification for a remedy that is interdistrict in nature and scope.

Here, where the District Court found that KCMSD students attended schools separated by their race and that facilities have "literally rotted," Jenkins v. Missouri, 672 F. Supp. 400, 411 (WD Mo. 1987), it of course should order restorations and remedies that would place previously segregated black KCMSD students at par with their white KCMSD counterparts. The District Court went further, however, and ordered certain improvements to KCMSD as a whole, including schools that were not previously segregated; these district-wide remedies may also be justified (the State does not argue the point here) in light of the finding that segregation caused "a system wide reduction in student achievement in the schools of the KCMSD," Jenkins v. Missouri, 639 F. Supp. 19, 24 (WD Mo. 1985). Such remedies [111] obviously may benefit some who did not suffer under—and, indeed, may have even profited from—past segregation. There is no categorical constitutional prohibition on nonvictims enjoying the collateral, incidental benefits of a remedial plan designed "to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." Milliken I, 418 U. S., at 746. Thus, if restoring KCMSD to unitary status would attract whites into the school district, such a reversal of the white exodus would be of no legal consequence.

What the District Court did in this case, however, and how it transgressed the constitutional bounds of its remedial powers, was to make desegregative attractiveness the underlying goal of its remedy for the specific purpose of reversing the trend of white flight. However troubling that trend may be, remedying it is within the District Court's authority only if it is "directly caused by the constitutional violation." Id., at 745. The Court and the dissent attempt to reconcile the different statements by the lower courts as to whether white flight was caused by segregation or desegregation. See ante, at 94-96; post, at 161-164. One fact, however, is uncontroverted. When the District Court found that KCMSD was racially segregated, the constitutional violation from which all remedies flow in this case, it also found that there was neither an interdistrict violation nor significant interdistrict segregative effects. See Jenkins v. Missouri, 807 F. 2d, at 672; ante, at 96. Whether the white exodus that has resulted in a school district that is 68% black was caused by the District Court's remedial orders or by natural, if unfortunate, demographic forces, we have it directly from the District Court that the segregative effects of KCMSD's constitutional violation did not transcend its geographical boundaries. In light of that finding, the District Court cannot order remedies seeking to rectify regional demographic trends that go beyond the nature and scope of the constitutional violation.

[112] This case, like other school desegregation litigation, is concerned with "the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds." Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S., at 22. Those myriad factors are not readily corrected by judicial intervention, but are best addressed by the representative branches; time and again, we have recognized the ample authority legislatures possess to combat racial injustice, see, e. g., Wisconsin v. Mitchell, 508 U. S. 476, 487-488 (1993); Jones v. Alfred H. Mayer Co, 392 U. S. 409, 443-444 (1968); Katzenbach v. Morgan, 384 U. S. 641, 651 (1966); South Carolina v. Katzenbach, 383 U. S. 301, 326 (1966). It is true that where such legislative efforts classify persons on the basis of their race, we have mandated strict judicial scrutiny to ensure that the personal right to equal protection of the laws has not been infringed. Richmond v. J. A. Croson Co., 488 U. S. 469, 493— 494 (1989) (plurality opinion). But it is not true that strict scrutiny is "strict in theory, but fatal in fact," Fullilove v. Klutznick, 448 U. S. 448, 519 (1980) (Marshall, J., concurring in judgment); cf. post, at 121 (Thomas, J., concurring). It is only by applying strict scrutiny that we can distinguish between unconstitutional discrimination and narrowly tailored remedial programs that legislatures may enact to further the compelling governmental interest in redressing the effects of past discrimination.

Courts, however, are different. The necessary restrictions on our jurisdiction and authority contained in Article III of the Constitution limit the judiciary's institutional capacity to prescribe palliatives for societal ills. The unfortunate fact of racial imbalance and bias in our society, however pervasive or invidious, does not admit of judicial intervention absent a constitutional violation. Thus, even though the Civil War Amendments altered the balance of authority between federal and state legislatures, see Ex parte Virginia, [113] 100 U. S. 339, 345 (1880), Justice Thomas cogently observes that "what the federal courts cannot do at the federal level they cannot do against the States; in either case, Article III courts are constrained by the inherent constitutional limitations on their powers." Post, at 132. Unlike Congress, which enjoys "`discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,' " Croson, supra, at 490 (quoting Katzenbach v. Morgan, supra, at 651), federal courts have no comparable license and must always observe their limited judicial role. Indeed, in the school desegregation context, federal courts are specifically admonished to "take into account the interests of state and local authorities in managing their own affairs," Milliken v. Bradley, 433 U. S. 267, 281 (1977) (Milliken II), in light of the intrusion into the area of education, "where States historically have been sovereign," United States v. Lopez, 514 U. S. 549, 564 (1995), and "to which States lay claim by right of history and expertise," id., at 583 (Kennedy, J., concurring).

In this case, it may be the "myriad factors of human existence," Swann, supra, at 22, that have prompted the white exodus from KCMSD, and the District Court cannot justify its transgression of the above constitutional principles simply by invoking desegregative attractiveness. The Court today discusses desegregative attractiveness only insofar as it supports the salary increase order under review, see ante, at 84, 89-90, and properly refrains from addressing the propriety of all the remedies that the District Court has ordered, revised, and extended in the 18-year history of this case. These remedies may also be improper to the extent that they serve the same goals of desegregative attractiveness and suburban comparability that we hold today to be impermissible, and, conversely, the District Court may be able to justify some remedies without reliance on these goals. But these are questions that the Court rightly leaves to be answered on remand. For now, it is enough to affirm the [114] principle that "the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation." Milliken II, supra, at 280.

For these reasons, I join the opinion of the Court.

Justice Thomas, concurring.

It never ceases to amaze me that the courts are so willing to assume that anything that is predominantly black must be inferior. Instead of focusing on remedying the harm done to those black school children injured by segregation, the District Court here sought to convert the Kansas City, Missouri, School District (KCMSD) into a "magnet district" that would reverse the "white flight" caused by de segregation. In this respect, I join the Court's decision concerning the two remedial issues presented for review. I write separately, however, to add a few thoughts with respect to the overall course of this litigation. In order to evaluate the scope of the remedy, we must understand the scope of the constitutional violation and the nature of the remedial powers of the federal courts.

Two threads in our jurisprudence have produced this unfortunate situation, in which a District Court has taken it upon itself to experiment with the education of the KCMSD's black youth. First, the court has read our cases to support the theory that black students suffer an unspecified psychological harm from segregation that retards their mental and educational development. This approach not only relies upon questionable social science research rather than constitutional principle, but it also rests on an assumption of black inferiority. Second, we have permitted the federal courts to exercise virtually unlimited equitable powers to remedy this alleged constitutional violation. The exercise of this authority has trampled upon principles of federalism and the separation of powers and has freed courts to pursue other agendas unrelated to the narrow purpose of precisely remedying a constitutional harm.

[115] I

A

The mere fact that a school is black does not mean that it is the product of a constitutional violation. A "racial imbalance does not itself establish a violation of the Constitution." United States v. Fordice, 505 U. S. 717, 745 (1992) (Thomas, J., concurring). Instead, in order to find unconstitutional segregation, we require that plaintiffs "prove all of the essential elements of de jure segregation—that is, stated simply, a current condition of segregation resulting from intentional state action directed specifically to the [allegedly segregated] schools." Keyes v. School Dist. No. 1, Denver, 413 U. S. 189, 205-206 (1973) (emphasis added). "[T]he differentiating factor between de jure segregation and so-called de facto segregation . . . is purpose or intent to segregate." Id. , at 208 (emphasis in original).

In the present case, the District Court inferred a continuing constitutional violation from two primary facts: the existence of de jure segregation in the KCMSD prior to 1954, and the existence of de facto segregation today. The District Court found that in 1954, the KCMSD operated 16 segregated schools for black students, and that in 1974 39 schools in the district were more than 90% black. Desegregation efforts reduced this figure somewhat, but the District Court stressed that 24 schools remained "racially isolated," that is, more than 90% black, in 1983-1984. Jenkins v. Missouri, 593 F. Supp. 1485, 1492-1493 (WD Mo. 1984). For the District Court, it followed that the KCMSD had not dismantled the dual system entirely. Id. , at 1493. The District Court also concluded that because of the KCMSD's failure to "become integrated on a system-wide basis," the dual system still exerted "lingering effects" upon KCMSD black students, whose "general attitude of inferiority" produced "low achievement . . . which ultimately limits employment opportunities and causes poverty." Id. , at 1492.

[116] Without more, the District Court's findings could not have supported a finding of liability against the State. It should by now be clear that the existence of one-race schools is not by itself an indication that the State is practicing segregation. See, e. g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 26 (1971); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 435-437 (1976); Freeman v. Pitts, 503 U. S. 467, 493-494 (1992). The continuing "racial isolation" of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions. Here, for instance, the demography of the entire KCMSD has changed considerably since 1954. Though blacks accounted for only 18.9% of KCMSD's enrollment in 1954, by 1983-1984 the school district was 67.7% black. 593 F. Supp., at 1492, 1495. That certain schools are overwhelmingly black in a district that is now more than two-thirds black is hardly a sure sign of intentional state action.

In search of intentional state action, the District Court linked the State and the dual school system of 1984 in two ways. First, the court found that "[i]n the past" the State had placed its "imprimatur on racial discrimination." As the court explained, laws from the Jim Crow era created "an atmosphere in which . . . private white individuals could justify their bias and prejudice against blacks," with the possible result that private realtors, bankers, and insurers engaged in more discriminatory activities than would otherwise have occurred. Id., at 1503. But the District Court itself acknowledged that the State's alleged encouragement of private discrimination was a fairly tenuous basis for finding liability. Ibid. The District Court therefore rested the State's liability on the simple fact that the State had intentionally created the dual school system before 1954, and had failed to fulfill "its affirmative duty of disestablishing a dual school system subsequent to 1954." Id. , at 1504. According to the District Court, the schools whose student bodies were [117] more than 90% black constituted "vestiges" of the prior de jure segregation, which the State and the KCMSD had an obligation to eliminate. Id. , at 1504, 1506. Later, in the course of issuing its first "remedial" order, the District Court added that a "system wide reduction in student achievement in the schools of . . . KCMSD" was also a vestige of the prior de jure segregation. Jenkins v. Missouri, 639 F. Supp. 19, 24 (WD Mo. 1985) (emphasis deleted).^[13] In a subsequent order, the District Court indicated that post-1954 "white flight" was another vestige of the pre-1954 segregated system. 1 App. 126.

In order for a "vestige" to supply the ground for an exercise of remedial authority, it must be clearly traceable to the dual school system. The "vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied." Freeman v. Pitts, 503 U. S., at 496. District courts must not confuse the consequences of de jure segregation with the results of larger social forces or of private decisions. "It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation." Ibid.; accord, id. , at 501 (Scalia, J., concurring); Columbus Bd. of Ed. v. Penick, 443 U. S. 449, 512 (1979) (Rehnquist, J., dissenting); Pasadena City Bd. of Ed. v. Spangler, supra, at 435-436. As state-enforced segregation recedes further into the past, it is more likely that "these kinds of continuous and massive demographic shifts," Freeman, 503 U. S., at 495, will be the real source of racial imbalance or of poor educational performance in a school district. [118] And as we have emphasized, "[i]t is beyond the authority and beyond the practical ability of the federal courts to try to counteract" these social changes. Ibid.

When a district court holds the State liable for discrimination almost 30 years after the last official state action, it must do more than show that there are schools with high black populations or low test scores. Here, the District Judge did not make clear how the high black enrollments in certain schools were fairly traceable to the State of Missouri's actions. I do not doubt that Missouri maintained the despicable system of segregation until 1954. But I question the District Court's conclusion that because the State had enforced segregation until 1954, its actions, or lack thereof, proximately caused the "racial isolation" of the predominantly black schools in 1984. In fact, where, as here, the finding of liability comes so late in the day, I would think it incumbent upon the District Court to explain how more recent social or demographic phenomena did not cause the "vestiges." This the District Court did not do.

B

Without a basis in any real finding of intentional government action, the District Court's imposition of liability upon the State of Missouri improperly rests upon a theory that racial imbalances are unconstitutional. That is, the court has "indulged the presumption, often irrebuttable in practice, that a presently observed [racial] imbalance has been proximately caused by intentional state action during the prior de jure era." United States v. Fordice, 505 U. S., at 745 (Thomas, J., concurring) (citing Dayton Bd. of Ed. v. Brinkman, 443 U. S. 526, 537 (1979), and Keyes v. School Dist. No. 1, 413 U. S., at 211). In effect, the court found that racial imbalances constituted an ongoing constitutional violation that continued to inflict harm on black students. [119] This position appears to rest upon the idea that any school that is black is inferior, and that blacks cannot succeed without the benefit of the company of whites.

The District Court's willingness to adopt such stereotypes stemmed from a misreading of our earliest school desegregation case. In Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I), the Court noted several psychological and sociological studies purporting to show that de jure segregation harmed black students by generating "a feeling of inferiority" in them. Seizing upon this passage in Brown I, the District Court asserted that "forced segregation ruins attitudes and is inherently unequal." 593 F. Supp., at 1492. The District Court suggested that this inequality continues in full force even after the end of de jure segregation:

"The general attitude of inferiority among blacks produces low achievement which ultimately limits employment opportunities and causes poverty. While it may be true that poverty results in low achievement regardless of race, it is undeniable that most poverty-level families are black. The District stipulated that as of 1977 they had not eliminated all the vestiges of the prior dual system. The Court finds the inferior education indigenous of the state-compelled dual school system has lingering effects in the [KCMSD]." Ibid. (citations omitted).

Thus, the District Court seemed to believe that black students in the KCMSD would continue to receive an "inferior education" despite the end of de jure segregation, as long as de facto segregation persisted. As the District Court later concluded, compensatory educational programs were necessary "as a means of remedying many of the educational problems which go hand in hand with racially isolated minority student populations." 639 F. Supp., at 25. Such assumptions and any social science research upon which they rely [120] certainly cannot form the basis upon which we decide matters of constitutional principle.^[14]

It is clear that the District Court misunderstood the meaning of Brown I. Brown I did not say that "racially isolated" schools were inherently inferior; the harm that it identified was tied purely to de jure segregation, not de facto segregation. Indeed, Brown I itself did not need to rely upon any psychological or social-science research in order to announce the simple, yet fundamental, truth that the government cannot discriminate among its citizens on the basis of race. See McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947 (1995). As the Court's unanimous opinion indicated: "[I]n the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal." Brown I, supra, at 495. At the heart of this interpretation of the Equal Protection Clause lies the principle that the government must treat citizens [121] as individuals, and not as members of racial, ethnic, or religious groups. It is for this reason that we must subject all racial classifications to the strictest of scrutiny, which (aside from two decisions rendered in the midst of wartime, see Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1944)) has proven automatically fatal.

Segregation was not unconstitutional because it might have caused psychological feelings of inferiority. Public school systems that separated blacks and provided them with superior educational resources—making blacks "feel" superior to whites sent to lesser schools—would violate the Fourteenth Amendment, whether or not the white students felt stigmatized, just as do school systems in which the positions of the races are reversed. Psychological injury or benefit is irrelevant to the question whether state actors have engaged in intentional discrimination—the critical inquiry for ascertaining violations of the Equal Protection Clause. The judiciary is fully competent to make independent determinations concerning the existence of state action without the unnecessary and misleading assistance of the social sciences.

Regardless of the relative quality of the schools, segregation violated the Constitution because the State classified students based on their race. Of course, segregation additionally harmed black students by relegating them to schools with substandard facilities and resources. But neutral policies, such as local school assignments, do not offend the Constitution when individual private choices concerning work or residence produce schools with high black populations. See Keyes v. School Dist. No. 1, 413 U. S., at 211. The Constitution does not prevent individuals from choosing to live together, to work together, or to send their children to school together, so long as the State does not interfere with their choices on the basis of race.

Given that desegregation has not produced the predicted leaps forward in black educational achievement, there is no [122] reason to think that black students cannot learn as well when surrounded by members of their own race as when they are in an integrated environment. Indeed, it may very well be that what has been true for historically black colleges is true for black middle and high schools. Despite their origins in "the shameful history of state-enforced segregation," these institutions can be "`both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of . . .learning for their children.' " Fordice, 505 U. S., at 748 (Thomas, J., concurring) (citation omitted). Because of their "distinctive histories and traditions," ibid., black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.

Thus, even if the District Court had been on firmer ground in identifying a link between the KCMSD's pre-1954 de jure segregation and the present "racial isolation" of some of the district's schools, mere de facto segregation (unaccompanied by discriminatory inequalities in educational resources) does not constitute a continuing harm after the end of de jure segregation. "Racial isolation" itself is not a harm; only state-enforced segregation is. After all, if separation itself is a harm, and if integration therefore is the only way that blacks can receive a proper education, then there must be something inferior about blacks. Under this theory, segregation injures blacks because blacks, when left on their own, cannot achieve. To my way of thinking, that conclusion is the result of a jurisprudence based upon a theory of black inferiority.

This misconception has drawn the courts away from the important goal in desegregation. The point of the Equal Protection Clause is not to enforce strict race-mixing, but to ensure that blacks and whites are treated equally by the State without regard to their skin color. The lower courts should not be swayed by the easy answers of social science, [123] nor should they accept the findings, and the assumptions, of sociology and psychology at the price of constitutional principle.

II

We have authorized the district courts to remedy past de jure segregation by reassigning students in order to eliminate or decrease observed racial imbalances, even if present methods of pupil assignment are facially neutral. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971); Green v. School Bd. of New Kent Cty., 391 U. S. 430 (1968). The District Court here merely took this approach to its logical next step. If racial proportions are the goal, then schools must improve their facilities to attract white students until the district's racial balance is restored to the "right" proportions. Thus, fault for the problem we correct today lies not only with a twisted theory of racial injuries, but also with our approach to the remedies necessary to correct racial imbalances.

The District Court's unwarranted focus on the psychological harm to blacks and on racial imbalances has been only half of the tale. Not only did the court subscribe to a theory of injury that was predicated on black inferiority, it also married this concept of liability to our expansive approach to remedial powers. We have given the federal courts the freedom to use any measure necessary to reverse problems— such as racial isolation or low educational achievement—that have proven stubbornly resistant to government policies. We have not permitted constitutional principles such as federalism or the separation of powers to stand in the way of our drive to reform the schools. Thus, the District Court here ordered massive expenditures by local and state authorities, without congressional or executive authorization and without any indication that such measures would attract whites back to KCMSD or raise KCMSD test scores. The time has come for us to put the genie back in the bottle.

[124] A

The Constitution extends "[t]he judicial Power of the United States" to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority." Art. III, §§ 1, 2. I assume for purposes of this case that the remedial authority of the federal courts is inherent in the "judicial Power," as there is no general equitable remedial power expressly granted by the Constitution or by statute. As with any inherent judicial power, however, we ought to be reluctant to approve its aggressive or extravagant use, and instead we should exercise it in a manner consistent with our history and traditions. See Chambers v. NASCO, Inc., 501 U. S. 32, 63-76 (1991) (Kennedy, J., dissenting); Young v. United States ex rel. Vuitton et Fils S. A., 481 U. S. 787, 815-825 (1987) (Scalia, J., concurring in judgment).

Motivated by our worthy desire to eradicate segregation, however, we have disregarded this principle and given the courts unprecedented authority to shape a remedy in equity. Although at times we have invalidated a decree as beyond the bounds of an equitable remedy, see Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I), these instances have been far outnumbered by the expansions in the equity power. In United States v. Montgomery County Bd. of Ed., 395 U. S. 225 (1969), for example, we allowed federal courts to desegregate faculty and staff according to specific mathematical ratios, with the ultimate goal that each school in the system would have roughly the same proportions of white and black faculty. In Swann v. Charlotte-Mecklenburg Bd. of Ed., supra, we permitted federal courts to order busing, to set racial targets for school populations, and to alter attendance zones. And in Milliken v. Bradley, 433 U. S. 267 (1977) (Milliken II), we approved the use of remedial or compensatory education programs paid for by the State.

In upholding these court-ordered measures, we indicated that trial judges had virtually boundless discretion in crafting [125] remedies once they had identified a constitutional violation. As Swann put it, "[o]nce a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." 402 U. S., at 15. We did say that "the nature of the violation determines the scope of the remedy," id. , at 16, but our very next sentence signaled how weak that limitation was: "In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system," ibid.

It is perhaps understandable that we permitted the lower courts to exercise such sweeping powers. Although we had authorized the federal courts to work toward "a system of determining admission to the public schools on a nonracial basis" in Brown v. Board of Education, 349 U. S. 294, 300— 301 (1955) (Brown II), resistance to Brown I produced little desegregation by the time we decided Green v. School Bd. of New Kent Cty., supra. Our impatience with the pace of desegregation and with the lack of a good-faith effort on the part of school boards led us to approve such extraordinary remedial measures. But such powers should have been temporary and used only to overcome the widespread resistance to the dictates of the Constitution. The judicial overreaching we see before us today perhaps is the price we now pay for our approval of such extraordinary remedies in the past.

Our prior decision in this litigation suggested that we would approve the continued use of these expansive powers even when the need for their exercise had disappeared. In Missouri v. Jenkins, 495 U. S. 33 (1990) (Jenkins II), the District Court in this litigation had ordered an increase in local property taxes in order to fund its capital improvements plan. KCMSD, which had been ordered by the Court to finance 25% of the plan, could not pay its share due to state constitutional and statutory provisions placing a cap on property taxes. Id. , at 38, 41. Although we held that principles [126] of comity barred the District Court from imposing the tax increase itself (except as a last resort), we also concluded that the court could order KCMSD to raise taxes, and could enjoin the state laws preventing KCMSD from doing so. With little analysis, we held that "a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court." Id. , at 55.

Our willingness to unleash the federal equitable power has reached areas beyond school desegregation. Federal courts have used "structural injunctions," as they are known, not only to supervise our Nation's schools, but also to manage prisons, see Hutto v. Finney, 437 U. S. 678 (1978), mental hospitals, Thomas S. v. Flaherty, 902 F. 2d 250 (CA4), cert. denied, 498 U. S. 951 (1990), and public housing, Hills v. Gautreaux, 425 U. S. 284 (1976). See generally D. Horowitz, The Courts and Social Policy 4-9 (1977). Judges have directed or managed the reconstruction of entire institutions and bureaucracies, with little regard for the inherent limitations on their authority.

B

Such extravagant uses of judicial power are at odds with the history and tradition of the equity power and the Framers' design. The available historical records suggest that the Framers did not intend federal equitable remedies to reach as broadly as we have permitted. Anticipating the growth of our modern doctrine, the Anti-Federalists criticized the Constitution because it might be read to grant broad equitable powers to the federal courts. In response, the defenders of the Constitution "sold" the new framework of government to the public by espousing a narrower interpretation of the equity power. When an attack on the Constitution is followed by an open Federalist effort to narrow the provision, the appropriate conclusion is that the drafters and ratifiers of the Constitution approved the more limited construction offered in response. See McIntyre v. Ohio [127] Elections Comm'n, 514 U. S. 334, 367 (1995) (Thomas, J., concurring in judgment).

The rise of the English equity courts as an alternative to the rigors of the common law, and the battle between the courts of equity and the courts of common law, is by now a familiar tale. See T. Plucknett, A Concise History of the Common Law 191-198, 673-694 (5th ed. 1956). By the middle of the 18th century, equity had developed into a precise legal system encompassing certain recognized categories of cases, such as those involving special property forms (trusts) or those in which the common law did not provide relief (fraud, forgery, or mistake). See 5 W. Holdsworth, History of English Law 300-338 (1927); S. Milsom, Historical Foundations of the Common Law 85-87 (1969); J. Baker, An Introduction to English Legal History 93-95 (2d ed. 1979). In this fixed system, each of these specific actions then called for a specific equitable remedy.

Blackstone described the principal differences between courts of law and courts of equity as lying only in the "modes of administering justice,"—"in the mode of proof, the mode of trial, and the mode of relief." 3 W. Blackstone, Commentaries on the Laws of England 436 (1768). As to the last, the English jurist noted that courts of equity held a concurrent jurisdiction when there is a "want of a more specific remedy, than can be obtained in the courts of law." Id. , at 438. Throughout his discussion, Blackstone emphasized that courts of equity must be governed by rules and precedents no less than the courts of law. "[I]f a court of equity were still at sea, and floated upon the occasional opinion which the judge who happened to preside might entertain of conscience in every particular case, the inconvenience that would arise from this uncertainty, would be a worse evil than any hardship that could follow from rules too strict and inflexible." Id. , at 440. If their remedial discretion had not been cabined, Blackstone warned, equity courts would have undermined [128] the rule of law and produced arbitrary government. "[The judiciary's] powers would have become too arbitrary to have been endured in a country like this, which boasts of being governed in all respects by law and not by will." Ibid. (footnote omitted); see also 1 id. , at 61-62.^[15]

So cautioned, the Framers approached equity with suspicion. As Thomas Jefferson put it: "Relieve the judges from the rigour of text law, and permit them, with pretorian discretion, to wander into it's equity, and the whole legal system becomes incertain." 9 Papers of Thomas Jefferson 71 (J. Boyd ed. 1954). Suspicion of judicial discretion led to criticism of Article III during the ratification of the Constitution. Anti-Federalists attacked the Constitution's extension of the federal judicial power to "Cases, in Law and Equity," arising under the Constitution and federal statutes. According to the Anti-Federalists, the reference to equity granted federal judges excessive discretion to deviate from the requirements of the law. Said the "Federal Farmer," "by thus joining the word equity with the word law, if we mean any thing, we seem to mean to give the judge a discretionary power." Federal Farmer No. 15, Jan. 18, 1788, in 2 The Complete AntiFederalist 322 (H. Storing ed. 1981) (hereinafter Storing). He hoped that the Constitution's mention of equity jurisdiction was not "intended to lodge an arbitrary power or discretion in the judges, to decide as their conscience, their opinions, their caprice, or their politics might dictate." Id. , at 322-323.^[16] Another Anti-Federalist, Brutus, argued that the [129] equity power would allow federal courts to "explain the constitution according to the reasoning spirit of it, without being confined to the words or letter." Brutus No. 11, Jan. 31, 1788, id. , at 419. This, predicted Brutus, would result in the growth of federal power and the "entire subversion of the legislative, executive and judicial powers of the individual states." Id., at 420. See G. McDowell, Equity and the Constitution 43-44 (1982).

These criticisms provoked a Federalist response that explained the meaning of Article III's words. Answering the Anti-Federalist challenge in The Federalist Papers, Alexander Hamilton described the narrow role that the federal judicial power would play. Initially, Hamilton conceded that the federal courts would have some freedom in interpreting the laws and that federal judges would have lifetime tenure. The Federalist No. 78, p. 528 (J. Cooke ed. 1961). Nonetheless, Hamilton argued (as Blackstone had in describing the English equity courts) that rules and established practices would limit and control the judicial power: "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them." Id., at 529. Cf. 1 J. Story, Commentaries on Equity Jurisprudence §§ 18-20, pp. 15-17 (I. Redfield 9th ed. 1866). Hamilton emphasized that "[t]he great and primary use of a court of equity is to give relief in extraordinary cases, " and that "the principles by which that relief is governed are now reduced to a regular system." The Federalist No. 83, at 569, and n.

[130] In response to Anti-Federalist concerns that equity would permit federal judges an unchecked discretion, Hamilton explicitly relied upon the precise nature of the equity system that prevailed in England and had been transplanted in America. Equity jurisdiction was necessary, Hamilton argued, because litigation "between individuals" often would contain claims of "fraud, accident, trust or hardship, which would render the matter an object of equitable, rather than of legal jurisdiction." Id., No. 80, at 539. "In such cases," Hamilton concluded, "where foreigners were concerned on either side, it would be impossible for the federal judicatories to do justice without an equitable, as well as a legal jurisdiction." Id. , at 540. Thus, Hamilton sought to narrow the expansive Anti-Federalist reading of inherent judicial equity power by demonstrating that the defined nature of the English and colonial equity system—with its specified claims and remedies—would continue to exist under the federal judiciary. In line with the prevailing understanding of equity at the time, Hamilton described Article III "equity" as a jurisdiction over certain types of cases rather than as a broad remedial power. Hamilton merely repeated the well-known principle that equity would be controlled no less by rules and practices than was the common law.

In light of this historical evidence, it should come as no surprise that there is no early record of the exercise of broad remedial powers. Certainly there were no "structural injunctions" issued by the federal courts, nor were there any examples of continuing judicial supervision and management of governmental institutions. Such exercises of judicial power would have appeared to violate principles of state sovereignty and of the separation of powers as late in the day as the turn of the century. "Born out of the desegregation litigation in the 1950's and 1960's, suits for affirmative injunctions were virtually unknown when the Court decided Ex parte Young, [209 U. S. 123, 158 (1908)]." Dwyer, Pendent Jurisdiction and the Eleventh Amendment, 75 Calif. L. Rev. [131] 129, 162 (1987) (footnotes omitted). Indeed, it appears that the Framers continued to follow English equity practice well after the Ratification. See, e. g., Robinson v. Campbell, 3 Wheat. 212, 221-223 (1818). At the very least, given the Federalists' public explanation during the ratification of the federal equity power, we should exercise the power to impose equitable remedies only sparingly, subject to clear rules guiding its use.

C

Two clear restraints on the use of the equity power—federalism and the separation of powers—derive from the very form of our Government. Federal courts should pause before using their inherent equitable powers to intrude into the proper sphere of the States. We have long recognized that education is primarily a concern of local authorities. "[L]ocal autonomy of school districts is a vital national tradition." Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 410 (1977); see also United States v. Lopez, 514 U. S. 549, 580 (1995) (Kennedy, J.,concurring); Milliken I, 418 U. S., at 741-742; San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 50 (1973); ante, at 113 (O'Connor, J., concurring). A structural reform decree eviscerates a State's discretionary authority over its own program and budgets and forces state officials to reallocate state resources and funds to the desegregation plan at the expense of other citizens, other government programs, and other institutions not represented in court. See Dwyer, supra, at 163. When district courts seize complete control over the schools, they strip state and local governments of one of their most important governmental responsibilities, and thus deny their existence as independent governmental entities.

Federal courts do not possess the capabilities of state and local governments in addressing difficult educational problems. State and local school officials not only bear the responsibility for educational decisions, they also are better equipped than a single federal judge to make the day-to-day [132] policy, curricular, and funding choices necessary to bring a school district into compliance with the Constitution. See Wright v. Council of Emporia, 407 U. S. 451, 477-478 (1972) (Burger, C. J., dissenting).^[17] Federal courts simply cannot gather sufficient information to render an effective decree, have limited resources to induce compliance, and cannot seek political and public support for their remedies. See generally P. Schuck, Suing Government 150-181 (1983). When we presume to have the institutional ability to set effective educational, budgetary, or administrative policy, we transform the least dangerous branch into the most dangerous one.

The separation of powers imposes additional restraints on the judiciary's exercise of its remedial powers. To be sure, this is not a case of one branch of Government encroaching on the prerogatives of another, but rather of the power of the Federal Government over the States. Nonetheless, what the federal courts cannot do at the federal level they cannot do against the States; in either case, Article III courts are constrained by the inherent constitutional limitations on their powers. There simply are certain things that courts, in order to remain courts, cannot and should not do. There [133] is no difference between courts running school systems or prisons and courts running Executive Branch agencies.

In this case, not only did the District Court exercise the legislative power to tax, it also engaged in budgeting, staffing, and educational decisions, in judgments about the location and esthetic quality of the schools, and in administrative oversight and monitoring. These functions involve a legislative or executive, rather than a judicial, power. See generally Jenkins II, 495 U. S., at 65-81 (Kennedy, J., concurring in part and concurring in judgment); Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 Stan. L. Rev. 661 (1978). As Alexander Hamilton explained the limited authority of the federal courts: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." The Federalist No. 78, at 526. Federal judges cannot make the fundamentally political decisions as to which priorities are to receive funds and staff, which educational goals are to be sought, and which values are to be taught. When federal judges undertake such local, day-to-day tasks, they detract from the independence and dignity of the federal courts and intrude into areas in which they have little expertise. Cf. Mishkin, Federal Courts as State Reformers, 35 Wash. & Lee L. Rev. 949 (1978).

It is perhaps not surprising that broad equitable powers have crept into our jurisprudence, for they vest judges with the discretion to escape the constraints and dictates of the law and legal rules. But I believe that we must impose more precise standards and guidelines on the federal equitable power, not only to restore predictability to the law and reduce judicial discretion, but also to ensure that constitutional remedies are actually targeted toward those who have been injured.

[134] D

The dissent's approval of the District Court's treatment of salary increases is typical of this Court's failure to place limits on the equitable remedial power. The dissent frames the inquiry thus: "The only issue, then, is whether the salary increases ordered by the District Court have been reasonably related to achieving" the goal of remedying a systemwide reduction in student achievement, "keeping in mind the broad discretion enjoyed by the District Court in exercising its equitable powers." Post, at 155. In response to its question, the dissent concludes that "it is difficult to see how the District Court abused its discretion" in either the 1992 or 1993 orders, ibid., and characterizes the lower court's orders as "beyond reproach," post, at 158. When the standard of review is as vague as whether "federal-court decrees. . . directly address and relate to the constitutional violation," Milliken II, 433 U. S., at 281-282, it is difficult to ever find a remedial order "unreasonable." Such criteria provide district courts with little guidance, and provide appellate courts few principles with which to review trial court decisions. If the standard reduces to what one believes is a "fair" remedy, or what vaguely appears to be a good "fit" between violation and remedy, then there is little hope of imposing the constraints on the equity power that the Framers envisioned and that our constitutional system requires.

Contrary to the dissent's conclusion, the District Court's remedial orders are in tension with two commonsense principles. First, the District Court retained jurisdiction over the implementation and modification of the remedial decree, instead of terminating its involvement after issuing its remedy. Although briefly mentioned in Brown II as a temporary measure to overcome local resistance to desegregation, 349 U. S., at 301 ("During this period of transition, the courts will retain jurisdiction"), this concept of continuing judicial involvement has permitted the District Courts to revise their remedies constantly in order to reach some broad, abstract, [135] and often elusive goal. Not only does this approach deprive the parties of finality and a clear understanding of their responsibilities, but it also tends to inject the judiciary into the day-to-day management of institutions and local policies—a function that lies outside of our Article III competence. Cf. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).

Much of the District Court's overreaching in this case occurred because it employed this hit-or-miss method to shape, and reshape, its remedial decree.^[18] Using its authority of continuing jurisdiction, the court pursued its goal of decreasing "racial isolation" regardless of the cost or of the difficulties of engineering demographic changes. Wherever possible, district courts should focus their remedial discretion on devising and implementing a unified remedy in a single decree. This method would still provide the lower courts with [136] substantial flexibility to tailor a remedy to fit a violation, and courts could employ their contempt power to ensure compliance. To ensure that they do not overstep the boundaries of their Article III powers, however, district courts should refrain from exercising their authority in a manner that supplants the proper sphere reserved to the political branches, who have a coordinate duty to enforce the Constitution's dictates, and to the States, whose authority over schools we have long sought to preserve. Only by remaining aware of the limited nature of its remedial powers, and by giving the respect due to other governmental authorities, can the judiciary ensure that its desire to do good will not tempt it into abandoning its limited role in our constitutional Government.

Second, the District Court failed to target its equitable remedies in this case specifically to cure the harm suffered by the victims of segregation. Of course, the initial and most important aspect of any remedy will be to eliminate any invidious racial distinctions in matters such as student assignments, transportation, staff, resource allocation, and activities. This element of most desegregation decrees is fairly straightforward and has not produced many examples of overreaching by the district courts. It is the "compensatory" ingredient in many desegregation plans that has produced many of the difficulties in the case before us.

Having found that segregation "has caused a system wide reduction in student achievement in the schools of the KCMSD," 639 F. Supp., at 24, the District Court ordered the series of magnet school plans, educational programs, and capital improvements that the Court criticizes today because of their interdistrict nature. In ordering these programs, the District Court exceeded its authority by benefiting those who were not victims of discriminatory conduct. KCMSD as a whole may have experienced reduced achievement levels, but raising the test scores of the entire district is a goal that is not sufficiently tailored to restoring the victims of segregation to the position they would have occupied absent [137] discrimination. A school district cannot be discriminated against on the basis of its race, because a school district has no race. It goes without saying that only individuals can suffer from discrimination, and only individuals can receive the remedy.

Of course, a district court may see fit to order necessary remedies that have the side effect of benefiting those who were not victims of segregation. But the court cannot order broad remedies that indiscriminately benefit a school district as a whole, rather than the individual students who suffered from discrimination. Not only do such remedies tend to indicate "efforts to achieve broader purposes lying beyond" the scope of the violation, Swann, 402 U. S., at 22, but they also force state and local governments to work toward the benefit of those who have suffered no harm from their actions.

To ensure that district courts do not embark on such broad initiatives in the future, we should demand that remedial decrees be more precisely designed to benefit only those who have been victims of segregation. Race-conscious remedies for discrimination not only must serve a compelling governmental interest (which is met in desegregation cases), but also must be narrowly tailored to further that interest. See Richmond v. J. A. Croson Co., 488 U. S. 469, 509-510 (1989) (plurality opinion). In the absence of special circumstances, the remedy for de jure segregation ordinarily should not include educational programs for students who were not in school (or were even alive) during the period of segregation. Although I do not doubt that all KCMSD students benefit from many of the initiatives ordered by the court below, it is for the democratically accountable state and local officials to decide whether they are to be made available even to those who were never harmed by segregation.

III

This Court should never approve a State's efforts to deny students, because of their race, an equal opportunity for an [138] education. But the federal courts also should avoid using racial equality as a pretext for solving social problems that do not violate the Constitution. It seems apparent to me that the District Court undertook the worthy task of providing a quality education to the children of KCMSD. As far as I can tell, however, the District Court sought to bring new funds and facilities into the KCMSD by finding a constitutional violation on the part of the State where there was none. Federal courts should not lightly assume that States have caused "racial isolation" in 1984 by maintaining a segregated school system in 1954. We must forever put aside the notion that simply because a school district today is black, it must be educationally inferior.

Even if segregation were present, we must remember that a deserving end does not justify all possible means. The desire to reform a school district, or any other institution, cannot so captivate the judiciary that it forgets its constitutionally mandated role. Usurpation of the traditionally local control over education not only takes the judiciary beyond its proper sphere, it also deprives the States and their elected officials of their constitutional powers. At some point, we must recognize that the judiciary is not omniscient, and that all problems do not require a remedy of constitutional proportions.

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 [139] refused to consider when it was presented in a prior petition for certiorari. Since, under these circumstances, the respondent school district and pupils naturally came to this Court without expecting that a fundamental premise of a portion of the District Court's remedial order would become the focus of the case, the essence of the Court's misjudgment in reviewing and repudiating that central premise lies in its failure to have warned the respondents of what was really at stake. This failure lulled the respondents into addressing the case without sufficient attention to the foundational issue, and their lack of attention has now infected the Court's decision.

No one on the Court has had the benefit of briefing and argument informed by an appreciation of the potential breadth of the ruling. The deficiencies from which we suffer have led the Court effectively to overrule a unanimous constitutional precedent of 20 years' standing, which was not even addressed in argument, was mentioned merely in passing by one of the parties, and discussed by another of them only in a misleading way.

The Court's departures from the practices that produce informed adjudication would call for dissent even in a simple case. But in this one, with a trial history of more than 10 years of litigation, the Court's failure to provide adequate notice of the issue to be decided (or to limit the decision to issues on which certiorari was clearly granted) rules out any confidence that today's result is sound, either in fact or in law.

I

In 1984, 30 years after our decision in Brown v. Board of Education, 347 U. S. 483 (1954), the District Court found that the State of Missouri and the Kansas City, Missouri, School District (KCMSD) had failed to reform the segregated scheme of public school education in the KCMSD, previously mandated by the State, which had required black and white children to be taught separately according to race. Jenkins [140] v. Missouri, 593 F. Supp. 1485, 1490-1494, 1503-1505 (WD Mo. 1984).^[19] 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 school children 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 segregation. [141] Since the District Court found that segregation had caused, among other things, "a system wide reduction in student achievement in the schools of the KCMSD," Jenkins v. Missouri, 639 F. Supp. 19, 24 (WD Mo. 1985) (emphasis in original), it ordered the adoption, starting in 1985, of a series of remedial programs to raise educational performance. As the Court recognizes, the District Court acted well within the bounds of its equitable discretion in doing so, ante, at 90, 101; in Milliken v. Bradley, 433 U. S. 267 (1977) (Milliken II), we held that a district court is authorized to remedy all conditions flowing directly from the constitutional violations committed by state or local officials, including the educational deficits that result from a segregated school system (programs aimed to correct those deficits are therefore frequently referred to as Milliken II programs). Id., at 281— 283. Nor was there any objection to the District Court's orders from the State and the KCMSD, who agreed that it was "`appropriate to include a number of properly targeted educational programs in [the] desegregation plan,' " Jenkins , 639 F. Supp., at 24 (quoting from the State's desegregation proposal). They endorsed many of the initiatives directed at improving student achievement that the District Court ultimately incorporated into its decree, including those calling for the attainment of AAA status for the KCMSD (a designation, conferred by the State Department of Elementary and Secondary Education upon consideration of a limited number of criteria, indicating "that a school system quantitatively and qualitatively has the resources necessary to provide minimum basic education to its students," id. , at 26), full day kindergarten, summer school, tutoring before and after school, early childhood development, and reduction in class sizes. Id., at 24-26.

Between 1985 and 1987 the District Court also ordered the implementation of a magnet school concept, 1 App. 131-133 (Order of Nov. 12, 1986), and extensive capital improvements to the schools of the KCMSD. Jenkins v. Missouri, 672 [142] F. Supp. 400, 405-408 (WD Mo. 1987); 1 App. 133-134 (Order of Nov. 12, 1986); Jenkins , 639 F. Supp., at 39-41. The District Court found that magnet schools would not only serve to remedy the deficiencies in student achievement in the KCMSD, but would also assist in desegregating the district by attracting white students back into the school system. See, e. g., 1 App. 118 (Order of June 16, 1986) ("[C]ommitment, when coupled with quality planning and sufficient resources can result in the establishment of magnet schools which can attract non-minority enrollment as well as be an integral part of district-wide improved student achievement"); see also Jenkins v. Missouri, 855 F. 2d 1295, 1301 (CA8 1988) ("The foundation of the plans adopted was the idea that improving the KCMSD as a system would at the same time compensate the blacks for the education they had been denied and attract whites from within and without the KCMSD to formerly black schools").

The District Court, finding that the physical facilities in the KCMSD had "literally rotted," Jenkins , 672 F. Supp., at 411, similarly grounded its orders of capital improvements in the related remedial objects of improving student achievement and desegregating the KCMSD. Jenkins , 639 F. Supp., at 40 ("The improvement of school facilities is an important factor in the overall success of this desegregation plan. Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan"); see also Jenkins , 855 F. 2d, at 1305 ("[T]he capital improvements [are] required both to improve the education available to the victims of segregation as well as to attract whites to the schools").

[143] As a final element of its remedy, in 1987 the District Court ordered funding for increases in teachers' salaries as a step toward raising the level of student achievement. "[I]t is essential that the KCMSD have sufficient revenues to fund an operating budget which can provide quality education, including a high quality faculty." Jenkins , 672 F. Supp., at 410. Neither the State nor the KCMSD objected to increases in teachers' salaries as an element of the comprehensive remedy, or to this cost as an item in the desegregation budget.

In 1988, however, the State went to the Eighth Circuit with a broad challenge to the District Court's remedial concept of magnet schools and to its orders of capital improvements (though it did not appeal the salary order), arguing that the District Court had run afoul of Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I), by ordering an interdistrict remedy for an intradistrict violation. The Eighth Circuit rejected the State's position, Jenkins , 855 F. 2d 1295, and in 1989 the State petitioned for certiorari.

The State's petition presented two questions for review, one challenging the District Court's authority to order a property tax increase to fund its remedial program, the other going to the legitimacy of the magnet school concept at the very foundation of the Court's desegregation plan:

"For a purely intradistrict violation, the courts below have ordered remedies—costing hundreds of millions of dollars—with the stated goals of attracting more nonminority students to the school district and making programs and facilities comparable to those in neighboring districts . . . . "The questio[n] presented [is] . . . .

". . . Whether a federal court, remedying an intradistrict violation under Brown v. Board of Education, 347 U. S. 483 (1954), may

[144] "a) impose a duty to attract additional non-minority students to a school district, and

"b) require improvements to make the district schools comparable to those in surrounding districts." Pet. for Cert. in Missouri v. Jenkins, O. T. 1988, No. 88-1150, p. i. We accepted the taxation question, and decided that while the District Court could not impose the tax measure itself, it could require the district to tax property at a rate adequate to fund its share of the costs of the desegregation remedy. Missouri v. Jenkins, 495 U. S. 33, 50-58 (1990). If we had accepted the State's broader, foundational question going to the magnet school concept, we could also have made an informed decision on whether that element of the District Court's remedial scheme was within the limits of the Court's equitable discretion in response to the constitutional violation found. Each party would have briefed the question fully and would have identified in some detail those items in the record bearing on it. But none of these things happened. Instead of accepting the foundational question in 1989, we denied certiorari on it. Missouri v. Jenkins, 490 U. S. 1034.

The State did not raise that question again when it returned to this Court with its 1994 petition for certiorari, which led to today's decision. Instead, the State presented, and we agreed to review, these two questions:

"1. Whether a remedial educational desegregation program providing greater educational opportunities to victims of past de jure segregation than provided anywhere else in the country nonetheless fails to satisfy the Fourteenth Amendment (thus precluding a finding of partial unitary status) solely because student achievement in the District, as measured by results on standardized test scores, has not risen to some unspecified level?

"2. Whether a federal court order granting salary increases to virtually every employee of a school district— [145] including non-instructional personnel—as a part of a school desegregation remedy conflicts with applicable decisions of this court which require that remedial components must directly address and relate to the constitutional violation and be tailored to cure the condition that offends the Constitution?" Pet. for Cert. i.

These questions focus on two discrete issues: the extent to which a district court may look at students' test scores in determining whether a school district has attained partial unitary status as to its Milliken II educational programs, and whether the particular salary increases ordered by the District Court constitute a permissible component of its remedy.

The State did not go beyond these discrete issues, and it framed no broader, foundational question about the validity of the District Court's magnet concept. The Court decides, however, that it can reach that question of its own initiative, and it sees no bar to this course in the provision of this Court's Rule 14.1 that "[o]nly the questions set forth in the petition, or fairly included therein, will be considered . . . ." Ante, at 84-85. The broader issue, the Court claims, is "fairly included" in the State's salary question. But that claim does not survive scrutiny.

The standard under Rule 14.1 is quite simple: as the Court recognizes, we have held that an issue is fairly comprehended in a question presented when the issue must be resolved in order to answer the question. See ibid., citing Procunier v. Navarette, 434 U. S. 555, 560, n. 6 (1978); United States v. Mendenhall, 446 U. S. 544, 551-552, n. 5 (1980). That should be the end of the matter here, since the State itself concedes that we can answer its salary and test-score questions without addressing the soundness of the magnet element of the District Court's underlying remedial scheme, see Brief for Petitioners 18 ("each question [presented] can be dealt with on its own terms . . ."). While the Court ignores that concession, it is patently correct. There [146] is no reason why we cannot take the questions as they come to us; assuming the validity of the District Court's basic remedial concept, we can determine the significance of test scores and assess the salary orders in relation to that concept.

Of course, as we understand necessity in prudential matters like this, it comes in degrees, and I would not deny that sometimes differing judgments are possible about the need to go beyond a question as originally accepted. But this is not even arguably such a case. It is instead a case that presents powerful reasons to confine discussion to the questions taken.^[20]

Quite naturally, the respondents here chose not to devote any significant attention to a question not raised, and they presumably had no reason to designate for printing those portions of the record bearing on an issue not apparently before us. And while respondents seemingly gave some thought to the bare possibility that the Court would choose [147] to deal with the discrete questions by going beyond them to a more comprehensive underlying issue, they were entitled to reject that possibility as a serious one for the very reason that the Court had already, in 1989, expressly refused to consider that foundational issue when the State expressly attempted to raise it. Our deliberate refusal to entertain so important an issue is and ought to be a reasonable basis to infer that we will not subsequently allow it to be raised on our own motion without saying so in advance and giving notice to a party whose interests might be adversely affected.

Thus the Court misses the point when it argues that the foundational issue is in a sense antecedent to the specific ones raised, and that those can be answered by finding error in some element of the underlying remedial scheme. Even if the Court were correct that the foundational issue could be reached under Rule 14.1, the critical question surely is whether that issue may fairly be decided without clear warning, at the culmination of a course of litigation in which this Court has specifically refused to consider the issue and given no indication of any subsequent change of mind. The answer is obviously no. And the Court's claim of necessity rings particularly hollow when one considers that if it really were essential to decide the foundational issue to address the two questions that are presented, the Court could give notice to the parties of its intention to reach the broader issue, and allow for adequate briefing and argument on it. And yet the Court does none of that, but simply decides the issue without any warning to respondents.

If there is any doubt about the lack of fairness and prudence displayed by the Court, it should disappear upon seeing two things: first, how readily the questions presented can be answered on their own terms, without giving any countenance to the State's now successful attempt to "`smuggl[e] additional questions into a case after we grant[ed] certiorari,' " Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 34 (1993), quoting Irvine v. Cali- [148] fornia, 347 U. S. 128, 129 (1954) (plurality opinion of Jackson, J.); and, second, how the Court's decision to go beyond those questions to address an issue not adequately briefed or argued by one set of parties leads it to render an opinion anchored in neither the findings and evidence contained in the record, nor in controlling precedent, which is squarely at odds with the Court's holding today.

II

A

The test-score question as it comes to us is one of word play, not substance. While the Court insists that the District Court's Order of June 17, 1992 (the only order relevant to the test-score question on review here), "requir[ed] the State to continue to fund the quality education programs because student achievement levels [in the KCMSD] were still `at or below national norms at many grade levels' . . . ," ante, at 100; see also ante, at 73, that order contains no discussion at all of student achievement levels in the KCMSD in comparison to national norms, and in fact does not explicitly address the subject of partial unitary status. App. to Pet. for Cert. A-69 to A-75. The reference to test scores "at or below national norms" comes from an entirely different and subsequent order of the District Court (dated Apr. 16, 1993) which is not under review. Its language presumably would not have been quoted to us, if the Court of Appeals's opinion affirming the District Court's June 17, 1992, order had not canvassed subsequent orders and mentioned the District Court's finding of fact that the "KCMSD is still at or below national norms at many grade levels," 11 F. 3d 755, 762 (CA8 1994), citing Order of Apr. 16, 1993, App. to Pet. for Cert. A-130. In any event, what is important here is that none of the District Court's or Court of Appeals's opinions or orders requires a certain level of test scores before unitary status can be found, or indicates that test scores are the only thing standing between the State and a finding of unitary [149] 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 [150] of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system." Id., at 485. Accordingly, before a district court may grant a school district (or other governmental entity) partial release from a desegregation decree, it must first consider "whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn . . . ." Id., at 491. Full and satisfactory compliance, we emphasized in Freeman, is to be measured by "`whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.' " Id., at 492, quoting Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 249-250 (1991). The district court must then consider "whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district [or other governmental entity] has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court's decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance." 503 U. S., at 491. The burden of showing that these conditions to finding partial unitary status have been met rests (as one would expect) squarely on the constitutional violator who seeks relief from the existing remedial order. Id., at 494.

While the Court recognizes the three-part showing that the State must make under Freeman in order to get a finding of partial unitary status, ante, at 88-89, it fails to acknowledge that the State did not even try to make a Freeman showing in the litigation leading up to the District Court's Order of June 17, 1992. The District Court's order was triggered not by a motion for partial unitary status filed by the State, but by a motion filed by the KCMSD for approval of its desegregation plan for the 1992-1993 school year. See App. to Pet. for Cert. A-69. While the State's response to [151] that motion suggested that the District Court should enter a finding of partial unitary status as to the district's Milliken II component of its decree, State's Response to KCMSD Motion for Approval of Desegregation Plan for 1992-1993, pp. 1-20 (hereinafter State's Response), the State failed even to allege its compliance with two of the three prongs of the Freeman test.

The State did not claim that implementation of the Milliken II component of the decree had remedied the reduction in student achievement in the KCMSD to the extent practicable; it simply argued that various Milliken II programs had been implemented. State's Response 9-17. Accordingly, in the hearings held by the District Court on the KCMSD's motion, the State's expert witness testified only that the various Milliken II programs had been implemented and had increased educational opportunity in the district. 2 App. 439-483. With the exception of the "effective schools" program, he said nothing about the effects of those programs on student achievement, and in fact admitted on cross-examination that he did not have an opinion as to whether the programs had remedied to the extent practicable the reduction in student achievement caused by the segregation in the KCMSD.

"Q: Dr. Stewart, do you, testifying on behalf of the State. . . have an opinion as to whether or not the educational deficits that you acknowledged were vestiges of the prior segregation have been eliminated to the extent practicable in the Kansas City School District? "A: No, that's not the purpose of my testimony, Mr. Benson." Id., at 483.

Nor did the State focus on its own good faith in complying with the District Court's decree; it emphasized instead the district's commitment to the decree and to the constitutional provisions on which the decree rested. State's Response 8. The State, indeed, said nothing to contradict the very findings [152] made elsewhere by the District Court that have called the State's own commitment to the success of the decree into question. See, e. g., 1 App. 136 (Order of Nov. 12, 1986) ("[D]uring the course of this lawsuit the Court has not been informed of one affirmative act voluntarily taken by the Executive Department of the State of Missouri or the Missouri General Assembly to aid a school district that is involved in a desegregation program"); see also App. to Pet. for Cert. A-123 (Order of Apr. 16, 1993) ("The State, also a constitutional violator, has historically opposed the implementation of any program offered to desegregate the KCMSD. The Court recognizes that the State has had to bear the brunt of the costs of desegregation due to the joint and several liability finding previously made by the Court. However, the State has never offered the Court a viable, even tenable, alternative and has been extremely antagonistic in its approach to effecting the desegregation of the KCMSD") (emphasis in original).

Thus, it was the State's failure to meet or even to recognize its burden under Freeman that led the Court of Appeals to reject the suggestion that it make a finding of partial unitary status as to the district's Milliken II education programs:

"It is . . . significant that the testimony of [the State's expert] did no more than describe the successful establishment of the several educational programs, but gave no indication of whether these programs had succeeded in improving student achievement. . . .

"The only evidence before the district court with respect to the degree of progress on elimination of vestiges of past discrimination was at best that a start had been made. The evidence on the record fell far short of establishing that such vestiges had been eliminated to the extent practicable. . . .

[153] ". . . [Further, the] State did not try to prove that it has demonstrated a good faith commitment to the whole of the court's decree. . . .

. . . . .

". . . [T]he district court did not abuse its discretion in continuing the quality education programs." 11 F. 3d, at 764-765 (citations omitted).

Examining only the first Freeman prong, there can be no doubt that the Court of Appeals was correct. Freeman and Dowell make it entirely clear that the central focus of this prong of the unitary status enquiry is on effects: to the extent reasonably possible, a constitutional violator must remedy the ills caused by its actions before it can be freed of the court-ordered obligations it has brought upon itself. Under the logic of the State's arguments to the District Court, the moment the Milliken II programs were put in place, the State was at liberty to walk away from them, no matter how great the remaining consequences of segregation for educational quality or how great the potential for curing them if state funding continued.

Looking ahead, if indeed the State believes itself entitled to a finding of partial unitary status on the subject of educational programs, there is an orderly procedural course for it to follow. It may frame a proper motion for partial unitary status, and prepare to make a record sufficient to allow the District Court and the Court of Appeals to address the continued need for and efficacy of the Milliken II programs.

In the development of a proper unitary status record, test scores will undoubtedly play a role. It is true, as the Court recognizes, that all parties to this case agree that it would be error to require that the students in a school district attain the national average test score as a prerequisite to a finding of partial unitary status, if only because all sorts of causes independent of the vestiges of past school segregation might stand in the way of the goal. Ante, at 101-102. That [154] said, test scores will clearly be relevant in determining whether the improvement programs have cured a deficiency in student achievement to the practicable extent. The District Court has noted (in the finding that the Court would read as a dispositive requirement for unitary status) that while students' scores have shown a trend of improvement, they remain at or below national norms. App. to Pet. for Cert. A-131 (Order of Apr. 16, 1993). The significance of this fact is subject to assessment. Depending, of course, on other facts developed in the course of unitary status proceedings, the improvement to less than the national average might reasonably be taken to show that education programs are having a good effect on student achievement, and that further improvement can be expected. On the other hand, if test-score changes were shown to have flattened out, that might suggest the impracticability of any additional remedial progress. While the significance of scores is thus open to judgment, the judgment is not likely to be very sound unless it is informed by more of a record than we have in front of us, and the Court's admonition that the District Court should "sharply limit" its reliance on test scores, ante, at 101, should be viewed in this light.

B

The other question properly before us has to do with the propriety of the District Court's recent salary orders. While the Court suggests otherwise, ante, at 84, 100, the District Court did not ground its orders of salary increases solely on the goal of attracting students back to the KCMSD. From the start, the District Court has consistently treated salary increases as an important element in remedying the systemwide reduction in student achievement resulting from segregation in the KCMSD. As noted above, the Court does not question this remedial goal, which we expressly approved in Milliken II. See supra, at 141-143. The only issue, then, is whether the salary increases ordered by the District Court have been reasonably related to achieving [155] that goal, keeping in mind the broad discretion enjoyed by the District Court in exercising its equitable powers.

The District Court first ordered KCMSD salary increases, limited to teachers, in 1987, basing its decision on the need to raise the level of student achievement. "[I]t is essential that the KCMSD have sufficient revenues to fund an operating budget which can provide quality education, including a high quality faculty." Jenkins, 672 F. Supp., at 410. The State raised no objection to the District Court's order, and said nothing about the issue of salary increases in its 1988 appeal to the Eighth Circuit.

When the District Court's 1987 order expired in 1990, all parties, including the State, agreed to a further order increasing salaries for both instructional and noninstructional personnel through the 1991-1992 school year. 1 App. 332— 337 (Order of July 23, 1990). In 1992 the District Court merely ordered that salaries in the KCMSD be maintained at the same level for the following year, rejecting the State's argument that desegregation funding for salaries should be discontinued, App. to Pet. for Cert. A-76 to A-93 (Order of June 25, 1992), and in 1993 the District Court ordered small salary increases for both instructional and noninstructional personnel through the end of the 1995-1996 school year, App. to Pet. for Cert. A-94 to A-109 (Order of June 30, 1993).

It is the District Court's 1992 and 1993 orders that are before us, and it is difficult to see how the District Court abused its discretion in either instance. The District Court had evidence in front of it that adopting the State's position and discontinuing desegregation funding for salary levels would result in their abrupt drop to 1986-1987 levels, with the resulting disparity between teacher pay in the district and the nationwide level increasing to as much as 40 to 45 percent, and a mass exodus of competent employees likely taking place. Id., at A-76, A-78 to A-91. Faced with this evidence, the District Court found that continued desegregation funding of salaries, and small increases in those salaries [156] over time, were essential to the successful implementation of its remedial scheme, including the elevation of student achievement:

"[I]n the absence of desegregation funding for salaries, the District will not be able to implement its desegregation plan. . . .

. . . . .

"High quality personnel are necessary not only to implement specialized desegregation programs intended to `improve educational opportunities and reduce racial isolation,' but also to `ensure that there is no diminution in the quality of its regular academic program.' . . .

". . . There is no question but that a salary roll back would have effects that would drastically impair implementation of the desegregation remedy.

. . . . .

". . . A salary roll back would result in excessive employee turnover, a decline in the quality and commitment of work and an inability of the KCMSD to achieve the objectives of the desegregation plan." Id., at A-86 to A-91 (Order of June 25, 1992), quoting Jenkins, 855 F. 2d, at 1301, and Jenkins, 672 F. Supp., at 410.

See also App. to Pet. for Cert. A-95 to A-97, A-101 to A-102 (Order of June 30, 1993). The Court of Appeals affirmed the District Court's orders on the basis of these findings, again taking special note of the importance of adequate salaries to the remedial goal of improving student achievement:

"[Q]uality education programs and magnet schools [are] a part of the remedy for the vestiges of segregation causing a system wide reduction in student achievement in the KCMSD schools. . . . The significant finding of the [district] court with respect to the earlier funding order was that the salary increases were essential to comply with the court's desegregation orders, and that high [157] quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD.

. . . . .

". . . It is evident that the district court had before it substantial evidence of a statistically significant reduction in the turnover rates for full-time employees, a dramatic increase in the percentage of certified employees selecting KCMSD because of the salary increases, and a significant decline in the number of employees lost to other districts. Further, the court heard testimony that the average performance evaluation for the professional employees increased positively and significantly." 13 F. 3d 1170, 1172-1174 (CA8 1993).

See also 11 F. 3d, at 766-769.

There is nothing exceptionable in the lower courts' findings about the relationship between salaries and the District Court's remedial objectives, and certainly nothing in the record suggests obvious error as to the amounts of the increases ordered.^[21] If it is tempting to question the place of salary increases for administrative and maintenance personnel in a desegregation order, the Court of Appeals addressed the temptation in specifically affirming the District Court's finding that such personnel are critical to the success of the desegregation effort, 13 F. 3d, at 1174 (referring to order of June 30, 1993, App. to Pet. for Cert. A-104), and did so in the circumstances of a district whose schools have been plagued by leaking roofs, defective lighting, and reeking [158] lavatories. See Jenkins, 855 F. 2d, at 1306; Jenkins, 672 F. Supp., at 403-404. As for teachers' increases, the District Court and the Court of Appeals were beyond reproach in finding and affirming that in order to remedy the educational deficits flowing from segregation in the KCMSD, "those persons charged with implementing the [remedial] plan [must] be the most qualified persons reasonably attainable," App. to Pet. for Cert. A-102.

Indeed, the Court does not question the District Court's salary orders insofar as they relate to the objective of raising the level of student achievement in the KCMSD, but rather overlooks that basis for the orders altogether. The Court suggests that the District Court rested its approval of salary increases only on the object of drawing students into the district's schools, ante, at 91, and rejects the increases for that reason. It seems clear, however, that the District Court and the Court of Appeals both viewed the salary orders as serving two complementary but distinct purposes, and to the extent that the District Court concludes on remand that its salary orders are justified by reference to the quality of education alone, nothing in the Court's opinion precludes those orders from remaining in effect.

III

The two discrete questions that we actually accepted for review are, then, answerable on their own terms without any need to consider whether the District Court's use of the magnet school concept in its remedial plan is itself constitutionally vulnerable. The capacity to deal thus with the questions raised, coupled with the unfairness of doing otherwise without warning, are enough to demand a dissent.

But there is more to fuel dissent. On its face, the Court's opinion projects an appealing pragmatism in seeming to cut through the details of many facts by applying a rule of law that can claim both precedential support and intuitive sense, that there is error in imposing an interdistrict remedy to [159] cure a merely intradistrict violation. Since the District Court has consistently described the violation here as solely intradistrict, and since the object of the magnet schools under its plan includes attracting students into the district from other districts, the Court's result seems to follow with the necessity of logic, against which arguments about detail or calls for fair warning may not carry great weight.

The attractiveness of the Court's analysis disappears, however, as soon as we recognize two things. First, the District Court did not mean by an "intradistrict violation" what the Court apparently means by it today. The District Court meant that the violation within the KCMSD had not led to segregation outside of it, and that no other school districts had played a part in the violation. It did not mean that the violation had not produced effects of any sort beyond the district. Indeed, the record that we have indicates that the District Court understood that the violation here did produce effects spanning district borders and leading to greater segregation within the KCMSD, the reversal of which the District Court sought to accomplish by establishing magnet schools.^[22] Insofar as the Court assumes that this [160] was not so in fact, there is at least enough in the record to cast serious doubt on its assumption. Second, the Court violates existing case law even on its own apparent view of the facts, that the segregation violation within the KCMSD produced no proven effects, segregative or otherwise, outside it. Assuming this to be true, the Court's decision that the rule against interdistrict remedies for intradistrict violations applies to this case, solely because the remedy here is meant to produce effects outside the district in which the violation occurred, is flatly contrary to established precedent.

A

The Court appears to assume that the effects of segregation were wholly contained within the KCMSD, and based on this assumption argues that any remedy looking beyond the district's boundaries is forbidden. The Court's position rests on the premise that the District Court and the Court of Appeals erred in finding that segregation had produced effects outside the district, and hence were in error when they treated the reversal of those effects as a proper subject of the equitable power to eliminate the remaining vestiges of the old segregation so far as practicable.

The Court has not shown the trial court and the Eighth Circuit to be wrong on the facts, however, and on the record before us this Court's factual assumption is at the very least a questionable basis for removing one major foundation of the desegregation decree. I do not, of course, claim to be in a position to say for sure that the Court is wrong, for I, like the Court, am a victim of an approach to the case uninformed by any warning that a foundational issue would be dispositive. My sole point is that the Court is not in any obvious sense correct, wherever the truth may ultimately lie.

To be sure, the District Court found, and the Court of Appeals affirmed, that the suburban school districts (SSD's) had taken no action contributing to segregation in the KCMSD. Jenkins v. Missouri, 807 F. 2d 657, 664, 668-670 (CA8 1986); [161] 3 App. 723, 738 (Order of June 5, 1984). Those courts further concluded that the constitutional violations committed by the State and the KCMSD had not produced any significant segregative effects in the SSD's, all of which have operated as unitary districts since shortly after our decision in Brown. Jenkins , 807 F. 2d, at 672, 678; 3 App. 813, 816. It was indeed on the basis of just these findings that the District Court concluded that it was dealing with an intradistrict violation, and, consistently with our decision in Milliken I, refused to consolidate the SSD's with the KCMSD. Jenkins , 807 F. 2d, at 660-661, 674; 3 App. 721-723, 725, 810-811.

There is no inconsistency between these findings and the possibility, however, that the actions of the State and the KCMSD produced significant nonsegregative effects outside the KCMSD that led to greater segregation within it. To the contrary, the District Court and the Court of Appeals concurred in finding that "the preponderance of black students in the [KCMSD] was due to the State and KCMSD's constitutional violations, which caused white flight. . . . [T]he existence of segregated schools led to white flight from the KCMSD to suburban districts and to private schools." Jenkins , 855 F. 2d, at 1302, citing the District Court's Order of Aug. 25, 1986, 1 App. 126 ("[S]egregated schools, a constitutional violation, ha[ve] led to white flight from the KCMSD to suburban districts [and] large numbers of students leaving the schools of Kansas City and attending private schools. . ."). While this exodus of white students would not have led to segregation within the SSD's, which have all been run in a unitary fashion since the time of Brown, it clearly represented an effect spanning district borders, and one which the District Court and the Court of Appeals expressly attributed to segregation in the KCMSD.

The Court, however, rejects the findings of the District Court, endorsed by the Court of Appeals, that segregation led to white flight from the KCMSD, and does so at the expense [162] of another accepted norm of our appellate procedure. We have long adhered to the view that "[a] court of law, such as this Court is, rather than a court for correction of errors in factfinding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error." Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U. S. 271, 275 (1949); see also Branti v. Finkel, 445 U. S. 507, 512, n. 6 (1980) (referring to "our settled practice of accepting, absent the most exceptional circumstances, factual determinations in which the district court and the court of appeals have concurred"). The Court fails to show any exceptional circumstance present here, however: it relies on a "contradiction" that is not an obvious contradiction at all, and on an arbitrary "supposition" that "`white flight' may result from desegregation, not de jure segregation," ante, at 95, a supposition said to be bolstered by the District Court's statement that there was "an abundance of evidence that many residents of the KCMSD left the district and moved to the suburbs because of the district's efforts to integrate its schools." 672 F. Supp., at 412.^[23]

The doubtful contradiction is said to exist between the District Court's findings, on the one hand, that segregation caused white flight to the SSD's, and the Court of Appeals's conclusion, on the other, that the District Court "`made specific findings that negate current significant interdistrict effects . . . .' " Ante, at 96, quoting Jenkins, 807 F. 2d, at 672. Any impression of contradiction quickly disappears, however, when the Court of Appeals's statement is read in context:

"[T]he [district] court explicitly recognized that [to consolidate school districts] under Milliken [I] `there [163] must be evidence of a constitutional violation in one district that produces a significant segregative effect in another district.' Order of June 5, 1984 at 14, 95. . . . The district court thus dealt not only with the issue of whether the SSDs were constitutional violators but also whether there were significant interdistrict segregative effects. See V, infra. When it did so, it made specific findings that negate current significant interdistrict effects . . . ." Ibid.

It is clear that, in this passage, the Court of Appeals was summarizing the District Court's findings that the constitutional violations within the KCMSD had not produced any segregative effects in other districts. Ibid. While the Court of Appeals did not repeat the word "segregative" in its concluding sentence, there is nothing to indicate that it was referring to anything but segregative effects, and there is in fact nothing in the District Court's own statements going beyond its finding that the State and the KCMSD's actions did not lead to segregative effects in the SSD's.^[24] [164] There is, in turn, no contradiction between this finding and the District Court's findings about white flight: while white flight would have produced significant effects in other school districts, in the form of greatly increased numbers of white students, those effects would not have been segregative beyond the KCMSD, as the departing students were absorbed into wholly unitary systems.

Without the contradiction, the Court has nothing to justify its rejection of the District Court's finding that segregation caused white flight but its supposition that flight results from integration, not segregation. The supposition, and the distinction on which it rests, are untenable. At the more obvious level, there is in fact no break in the chain of causation linking the effects of desegregation with those of segregation. There would be no desegregation orders and no remedial plans without prior unconstitutional segregation as the occasion for issuing and adopting them, and an adverse reaction to a desegregation order is traceable in fact to the segregation that is subject to the remedy. When the Court quotes the District Court's reference to abundant evidence that integration caused flight to the suburbs, then, it quotes nothing inconsistent with the District Court's other findings that segregation had caused the flight. The only difference between the statements lies in the point to which the District Court happened to trace the causal sequence.

The unreality of the Court's categorical distinction can be illustrated by some examples. There is no dispute that before the District Court's remedial plan was placed into effect the schools in the unreformed segregated system were physically a shambles:

"The KCMSD facilities still have numerous health and safety hazards, educational environment hazards, functional impairments, and appearance impairments. The [165] specific problems include: inadequate lighting; peeling paint and crumbling plaster on ceilings, walls and corridors; loose tiles, torn floor coverings; odors resulting from unventilated restrooms with rotted, corroded toilet fixtures; noisy classrooms due to lack of adequate acoustical treatment; lack of off street parking and bus loading for parents, teachers and students; lack of appropriate space for many cafeterias, libraries, and classrooms; faulty and antiquated heating and electrical systems; damaged and inoperable lockers; and inadequate fire safety systems. The conditions at Paseo High School are such that even the principal stated that he would not send his own child to that facility." 672 F. Supp., at 403 (citations omitted).

See also Jenkins , 855 F. 2d, at 1300 (reciting District Court findings); Jenkins , 639 F. Supp., at 39-40. The cost of turning this shambles into habitable schools was enormous, as anyone would have seen long before the District Court ordered repairs. See Missouri v. Jenkins, 495 U. S., at 38-40 (discussing the costs of the remedial program and the resulting increases in tax rates within the KCMSD). Property tax-paying parents of white children, seeing the handwriting on the wall in 1985, could well have decided that the inevitable cost of cleanup would produce an intolerable tax rate and could have moved to escape it. The District Court's remedial orders had not yet been put in place. Was the white flight caused by segregation or desegregation? The distinction has no significance.

Another example makes the same point. After Brown, white parents likely came to understand that the practice of spending more on white schools than on black ones would be stopped at some point. If they were unwilling to raise all expenditures to match the customary white school level, they must have expected the expenditures on white schools to drop to the level of those for the segregated black schools or to some level in between. See, e. g., 639 F. Supp., at 39-40 [166] (describing a decline in all 68 of the KCMSD's school buildings in the past "10 to 15 years"). If they thus believed that the white schools would deteriorate they might then have taken steps to establish private white schools, starting a practice of local private education that has endured. Again, what sense does it make to say of this example that the cause of white private education was desegregation (not yet underway), rather than the segregation that led to it?

I do not claim that either of these possible explanations would ultimately turn out to be correct, for any such claim would head me down the same road the Court is taking, of resolving factual issues independently of the trial court without warning the respondents that the full evidentiary record bearing on the issue should be identified for us. My point is only that the Court is on shaky grounds when it assumes that prior segregation and later desegregation are separable in fact as causes of "white flight," that the flight can plausibly be said to result from desegregation alone, and that therefore as a matter of fact the "intradistrict" segregation violation lacked the relevant consequences outside the district required to justify the District Court's magnet concept. With the arguable plausibility of each of these assumptions seriously in question, it is simply rash to reverse the concurrent factual findings of the District Court and the Court of Appeals. All the judges who spoke to the issue below concluded that segregated schooling in the KCMSD contributed to the exodus of white students from the district. Among them were not only the judges most familiar with the record of this litigation, Judge Clark of the District Court and the three members of the Court of Appeals panel that has retained jurisdiction over the case, see supra, at 162-164, but also the five judges who dissented from the denial of rehearing en banc in the Court of Appeals (whose opinion the majority does not hesitate to rely on for other purposes):

"[By 1985], `[w]hite flight' to private schools and to the suburbs was rampant.

[167] "The district court, correctly recognizing that at least part of this problem was the consequence of the de jure segregation previously practiced under Missouri constitutional and statutory law, fashioned a remedial plan for the desegregation of the KCMSD . . . ." 19 F. 3d, at 397 (Beam, J., dissenting from denial of rehearing en banc).

The reality is that the Court today overturns the concurrent factual findings of the District Court and the Court of Appeals without having identified any circumstance in the record sufficient to warrant such an extraordinary course of action.

B

To the substantial likelihood that the Court proceeds on erroneous assumptions of fact must be added corresponding errors of law. We have most recently summed up the obligation to correct the condition of de jure segregation by saying that "the duty of a former de jure district is to `take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.' " Freeman, 503 U. S., at 486, quoting Green, 391 U. S., at 437-438. Although the fashioning of judicial remedies to this end has been left, in the first instance, to the equitable discretion of the district courts, in Milliken I we established an absolute limitation on this exercise of equitable authority. "[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy." Milliken I, 418 U. S., at 745.

The Court proceeds as if there is no question but that this proscription applies to this case. But the proscription does not apply. We are not dealing here with an interdistrict remedy in the sense that Milliken I used the term. In the Milliken I litigation, the District Court had ordered 53 surrounding school districts to be consolidated with the Detroit [168] school system, and mandatory busing to be started within the enlarged district, even though the court had not found that any of the suburban districts had acted in violation of the Constitution. "The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district." Id., at 743. It was this imposition of remedial measures on more than the one wrongdoing school district that we termed an "interdistrict remedy":

"We . . . turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district." Id., at 744.

And it was just this subjection to court order of school districts not shown to have violated the Constitution that we deemed to be in error:

"Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. . . .

". . . To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown I and II or any holding of this Court." Id., at 744-745.

We did not hold, however, that any remedy that takes into account conditions outside of the district in which a constitutional violation has been committed is an "interdistrict remedy," and as such improper in the absence of an "interdistrict violation." To the contrary, by emphasizing that remedies in school desegregation cases are grounded in traditional equitable [169] principles, id., at 737-738, we left open the possibility that a district court might subject a proven constitutional wrongdoer to a remedy with intended effects going beyond the district of the wrongdoer's violation, when such a remedy is necessary to redress the harms flowing from the constitutional violation.

The Court, nonetheless, reads Milliken I quite differently. It reads the case as categorically forbidding imposition of a remedy on a guilty district with intended consequences in a neighboring innocent district, unless the constitutional violation yielded segregative effects in that innocent district. See, e. g., ante, at 92 ("But this interdistrict goal [of attracting nonminority students from outside the KCMSD schools] is beyond the scope of the intradistrict violation identified by the District Court" (emphasis deleted)).

Today's decision therefore amounts to a redefinition of the terms of Milliken I and consequently to a substantial expansion of its limitation on the permissible remedies for prior segregation. But that is not the only prior law affected by today's decision. The Court has not only rewritten Milliken I; it has effectively overruled a subsequent case expressly refusing to constrain remedial equity powers to the extent the Court does today, and holding that courts ordering relief from unconstitutional segregation may, with an appropriate factual predicate, exercise just the authority that the Court today eliminates.

Two Terms after Milliken, we decided Hills v. Gautreaux, 425 U. S. 284 (1976), in a unanimous opinion by Justice Stewart. The District Court in Gautreaux had found that the United States Department of Housing and Urban Development (HUD) and the Chicago Housing Authority (CHA) had maintained a racially segregated system of public housing within the city of Chicago, in violation of various constitutional and statutory provisions. There was no indication that the violation had produced any effects outside the city itself. The issue before us was whether "the remedial order [170] of the federal trial court [might] extend beyond Chicago's territorial boundaries." Id., at 286. Thus, while Justice O'Connor suggests that Gautreaux may not have addressed the propriety of a remedy with effects going beyond the district in which the constitutional violation had occurred, ante, at 106, her suggestion cannot be squared with our express understanding of the question we were deciding: "the permissibility in light of Milliken of `inter-district relief for discrimination in public housing in the absence of a finding of an inter-district violation.' " Gautreaux, supra, at 292.

HUD argued that the case should turn on the same principles governing school desegregation orders and that, under Milliken I, the District Court's order could not look beyond Chicago's city limits, because it was only within those limits that the constitutional violation had been committed. 425 U. S., at 296-297. We agreed with HUD that the principles of Milliken apply outside of the school desegregation context, 425 U. S., at 294, and n. 11, but squarely rejected its restricted interpretation of those principles and its view of limited equitable authority to remedy segregation. We held that a district court may indeed subject a governmental perpetrator of segregative practices to an order for relief with intended consequences beyond the perpetrator's own subdivision, even in the absence of effects outside that subdivision, so long as the decree does not bind the authorities of other governmental units that are free of violations and segregative effects:

"[Milliken `s] holding that there had to be an interdistrict violation or effect before a federal court could order the crossing of district boundary lines reflected the substantive impact of a consolidation remedy on separate and independent school districts. The District Court's desegregation order in Milliken was held to be an impermissible remedy not because it envisioned relief against a wrongdoer extending beyond the city in which the violation occurred but because it contemplated a [171] judicial decree restructuring the operation of local governmental entities that were not implicated in any constitutional violation." Id., at 296 (footnote omitted).

In the face of Gautreaux `s language, the Court claims that it was only because the "`relevant geographic area for purposes of the [plaintiffs'] housing options [was] the Chicago housing market, not the Chicago city limits,' " ante, at 97, quoting Gautreaux, supra, at 299, that we held that "`a metropolitan area remedy . . . [was] not impermissible as a matter of law,' " ante, at 97, quoting Gautreaux, supra, at 306. See also ante, at 106 (O'Connor, J., concurring). But that was only half the explanation. Requiring a remedy outside the city in the wider metropolitan area was permissible not only because that was the area of the housing market even for people who lived within the city (thus relating the scope of the remedy to the violation suffered by the victims) but also because the trial court could order a remedy in that market without binding a governmental unit innocent of the violation and free of its effects. In "reject[ing] the contention that, since HUD's constitutional and statutory violations were committed in Chicago, Milliken precludes an order against HUD that will affect its conduct in the greater metropolitan area," we stated plainly that "[t]he critical distinction between HUD and the suburban school districts in Milliken is that HUD has been found to have violated the Constitution. That violation provided the necessary predicate for the entry of a remedial order against HUD and, indeed, imposed a duty on the District Court to grant appropriate relief." Gautreaux, 425 U. S., at 297. Having found HUD in violation of the Constitution, the District Court was obligated to make "every effort . . . to employ those methods [necessary] `to achieve the greatest possible degree of [relief], taking into account the practicalities of the situation,' " ibid., quoting Davis v. Board of School Comm'rs of Mobile Cty., 402 U. S. 33, 37 (1971), and the District Court's methods could include subjecting HUD to measures going beyond the [172] geographical or political boundaries of its violation. "Nothing in the Milliken decision suggests a per se rule that federal courts lack authority to order parties found to have violated the Constitution to undertake remedial efforts beyond the municipal boundaries of the city where the violation occurred." 425 U. S., at 298.

On its face, the District Court's magnet school concept falls entirely within the scope of equitable authority recognized in Gautreaux. In Gautreaux, the fact that the CHA and HUD had the authority to operate outside the limits of the city of Chicago meant that an order to fund or build housing beyond those limits would "not necessarily entail coercion of uninvolved governmental units . . . ." Id., at 298. Here, by the same token, the District Court has not sought to "consolidate or in any way restructure" the SSD's, id., at 305-306, or, indeed, to subject them to any remedial obligation at all.^[25] The District Court's remedial measures go only to the operation and quality of schools within the KCMSD, and the burden of those measures accordingly falls only on the two proven constitutional wrongdoers in this case, the KCMSD and the State. And insofar as the District Court has ordered those violators to undertake measures to increase the KCMSD's attractiveness to students from other districts and thereby to reverse the flight attributable to their prior segregative acts, its orders do not represent an abuse of discretion, but instead appear "wholly commensurate with the `nature and extent of the constitutional violation.' " Id., at 300, quoting Milliken I, 418 U. S., at 744.

The Court's failure to give Gautreaux its due points up the risks of its approach to this case. The major peril of addressing an important and complex question without adequate [173] notice to the parties is the virtual certainty that briefing and argument will not go to the real point. If respondents had had reason to suspect that the validity of applying the District Court's remedial concept of magnet schools in this case would be the focus of consideration by this Court, they presumably would have devoted significant attention to Gautreaux in their briefing. As things stand, the only references to the case in the parties' briefs were two mere passing mentions by the Jenkins respondents and a footnote by the State implying that Gautreaux was of little relevance here. The State's footnote says that "in Gautreaux, there was evidence of suburban discrimination and of the `extra-city impact of [HUD's] intracity discrimination.' " Brief for Petitioners 28, n. 18. That statement, however, is flatly at odds with Justice Stewart's opinion for the Court: "the Court of Appeals surmised that either an interdistrict violation or an interdistrict segregative effect may have been present in this case. There is no support provided for either conclusion. . . . [I]t is apparent that the Court of Appeals was mistaken in supposing that the [record contains] evidence of suburban discrimination justifying metropolitan area relief. . . . [And the Court of Appeals's] unsupported speculation falls far short of the demonstration of a `significant segregative effect in another district' discussed in the Milliken opinion." Gautreaux, 425 U. S., at 294-295, n. 11.^[26]

[174] After being misrepresented by the State and mentioned only briefly by the other parties, Gautreaux `s holding is now effectively overruled, for the Court's opinion can be viewed as correct only on that assumption. But there is no apparent reason to reverse that decision, which represented the judgment of a unanimous Court, seems to reflect equitable common sense, and has been in the reports for two decades. While I would reserve final judgment on Gautreaux `s future until a time when the subject has been given a full hearing, [175] I realize that after today's decision there may never be an occasion for any serious examination of Gautreaux. If things work out that way, there will doubtless be those who will quote from Gautreaux to describe today's opinion as "transform[ing] Milliken `s principled limitation on the exercise of federal judicial authority into an arbitrary and mechanical shield for those found to have engaged in unconstitutional conduct." Id., at 300.

I respectfully dissent.

Justice Ginsburg, dissenting.

I join Justice Souter's illuminating dissent and emphasize a consideration key to this controversy.

The Court stresses that the present remedial programs have been in place for seven years. Ante, at 102. But compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the District Court has been evanescent.

In 1724, Louis XV of France issued the Code Noir, the first slave code for the Colony of Louisiana, an area that included Missouri. Violette, The Black Code in Missouri, in 6 Proceedings of the Mississippi Valley Historical Association 287, 288 (B. Shambaugh ed. 1913). When Missouri entered the Union in 1821, it entered as a slave State. Id., at 303.

Before the Civil War, Missouri law prohibited the creation or maintenance of schools for educating blacks: "No person shall keep or teach any school for the instruction of negroes or mulattoes, in reading or writing, in this State." Act of Feb. 16, 1847, § 1, 1847 Mo. Laws 103.

Beginning in 1865, Missouri passed a series of laws requiring separate public schools for blacks. See, e. g., Act of Mar. 29, 1866, § 20, 1865 Mo. Laws 177. The Missouri Constitution first permitted, then required, separate schools. See Mo. Const., Art. IX, § 2 (1865); Mo. Const., Art. XI, § 3 (1875).

After this Court announced its decision in Brown v. Board of Education, 347 U. S. 483 (1954), Missouri's Attorney General [176] declared these provisions mandating segregated schools unenforceable. See Jenkins v. Missouri, 593 F. Supp. 1485, 1490 (WD Mo. 1984). The statutes were repealed in 1957 and the constitutional provision was rescinded in 1976. Ibid. Nonetheless, 30 years after Brown, the District Court found that "the inferior education indigenous of the statecompelled dual school system has lingering effects in the Kansas City, Missouri School District." 593 F. Supp., at 1492. The District Court concluded that "the State . . . cannot defend its failure to affirmatively act to eliminate the structure and effects of its past dual system on the basis of restrictive state law." Id., at 1505. Just ten years ago, in June 1985, the District Court issued its first remedial order. Jenkins v. Missouri, 639 F. Supp. 19 (WD Mo.).

Today, the Court declares illegitimate the goal of attracting nonminority students to the Kansas City, Missouri, School District, ante, at 94, and thus stops the District Court's efforts to integrate a school district that was, in the 1984/1985 school year, sorely in need and 68.3% black. 639 F. Supp., at 36; see also Jenkins v. Missouri, 672 F. Supp. 400, 411 (WD Mo. 1987) (reporting that physical facilities in the School District had "literally rotted"). Given the deep, inglorious history of segregation in Missouri, to curtail desegregation at this time and in this manner is an action at once too swift and too soon. Cf. 11 F. 3d 755, 762 (CA8 1993) (Court of Appeals noted with approval that the District Court had ordered the School District to submit plans projecting termination of court-ordered funding at alternative intervals, running from April 1993, of three, five, seven, or, at most, ten years).

[1] Together with Missouri et al. v. Jenkins et al., also on certiorari to the same court (see this Court's Rule 12.2).

[2] Mark J. Bredemeier and Jerald L. Hill filed a brief for Icelean Clark et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Christopher A. Hansen, Steven R. Shapiro, and Helen Hershkoff; for the Civic Council of Greater Kansas City by David F. Oliver; for the Lawyers' Committee for Civil Rights Under Law by Jack W. Londen, Michael Cooper, and Thomas J. Henderson; and for James D. Anderson et al. by Kevin J. Hamilton.

William L. Taylor and Dianne M. Pich fileda brief for the National Urban League et al. as amici curiae.

[3] "`Magnet schools,' as generally understood, are public schools of voluntary enrollment designed to promote integration by drawing students away from their neighborhoods and private schools through distinctive curricula and high quality." Missouri v. Jenkins, 495 U. S. 33, 40, n. 6 (1990).

[4] In April 1993, 16 years after this litigation began, the District Court acknowledged that the KCMSD and the plaintiffs had "barely addressed. . . how the KCMSD proposes to ultimately fund the school system developed under the desegregation plan." App. to Pet. for Cert. A-123. In the context of a proposal to extend funding of the magnet-school program for 10 additional years at a cost of over $500 million, the District Court noted that "[t]he District's proposals do not include a viable method of financing any of the programs." Id., at A-140.

[5] "Whether a federal court order granting salary increases to virtually every employee of a school district—including non-instructional personnel—as part of a school desegregation remedy conflicts with applicable decisions of this court which require that remedial components must directly address and relate to the constitutional violation and be tailored to cure the condition that offends the Constitution?" Pet. for Cert. i.

[6] See also Jenkins v. Missouri, 931 F. 2d 1273, 1274 (CA8 1991) ("[T]he district court in September 1984 held the State defendants and the KCMSD liable for intradistrict segregation"); Jenkins v. Missouri, 931 F. 2d 470, 475 (CA8 1991) ("In a June 5, 1984, order the district court rejected claims of interdistrict violations"); Jenkins v. Missouri, 838 F. 2d 260, 264 (CA8 1988) ("In this case, the plaintiffs made unsuccessful claims against the State as well as the suburban, federal, and Kansas defendants for interdistrict relief. They also made successful intradistrict claims against the State and KCMSD"); Jenkins v. Missouri, 807 F. 2d 657, 669— 670 (CA8 1986) (en banc) ("[T]he argument that KCMSD officially sanctioned suburban flight looks first to KCMSD's violation which the district court clearly found to be only intradistrict in nature").

[7] See also Green v. School Bd. of New Kent Cty., 391 U. S. 430, 432 (1968) (approving a desegregation plan which had a racial composition of 57% black and 43% white); Wright v. Council of Emporia, 407 U. S. 451, 457 (1972) (approving a desegregation plan which had a racial composition of 66% black and 34% white); United States v. Scotland Neck City Bd. of Ed., 407 U. S. 484, 491, n. 5 (1972) (approving implicitly a desegregation plan which had a racial composition of 77% black and 22% white).

[8] Prior to 1954, Missouri mandated segregated schools for black and white children. Jenkins v. Missouri, 593 F. Supp. 1485, 1490 (WD Mo. 1984). Immediately after the Court's decision in Brown v. Board of Education, 347 U. S. 483 (1954), the State's Attorney General issued an opinion declaring the provisions that mandated segregation unenforceable. 593 F. Supp., at 1490. In the 1954-1955 school year, 18.9% of the KCMSD's students were black. 807 F. 2d, at 680. The KCMSD became 30% black in the 1961-1962 school year, 40% black in the 1965-1966 school year, and 60% black in the 1975-1976 school year. Ibid. In 1977, the KCMSD implemented the 6C desegregation plan in order to ensure that each school within the KCMSD had a minimum minority enrollment of 30%. Jenkins v. Missouri, 639 F. Supp. 19, 35 (WD Mo. 1985). Overall enrollment in KCMSD decreased by 30% from the time that the 6C plan first was implemented until 1986. Id., at 36. During the same time period, white enrollment decreased by 44%. Ibid.

[9] Compare n. 4, supra, and Jenkins, 807 F. 2d, at 662 ("[N]one of the alleged discriminatory actions committed by the State or the federal defendants ha[s] caused any significant current interdistrict segregation"), with Jenkins v. Missouri, 855 F. 2d 1295, 1302 (CA8 1988) ("These holdings are bolstered by the district court's findings that the preponderance of black students in the district was due to the State and KCMSD's constitutional violations, which caused white flight").

[10] "During the hearing on the liability issue in this case there was an abundance of evidence that many residents of the KCMSD left the district and moved to the suburbs because of the district's efforts to integrate its schools." 1 App. 239; see also Scotland Neck City Bd. of Ed., 407 U. S., at 491 (recognizing that implementation of a desegregation remedy may result in "white flight").

[11] Justice Souter construes the Court of Appeals' determination to mean that the violations by the State and the KCMSD did not cause segregation within the limits of each of the SSD's. Post, at 163-164. But the Court of Appeals would not have decided this question at the behest of these plaintiffs—present and future KCMSD students—who have no standing to challenge segregation within the confines of the SSD's. Cf. Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992). Ergo, the Court of Appeals meant exactly what it said: the requirements of Milliken I had not been met because the District Court's specific findings "negate current significant interdistrict effects." Jenkins, 807 F. 2d, at 672.

[12] To the extent that the District Court has adopted the quality education program to further the goal of desegregative attractiveness, that goal is no longer valid. See supra, at 91-100.

[13] It appears that the low achievement levels were never properly attributed to any discriminatory actions on the part of the State or of KCMSD. The District Court simply found that the KCMSD's test scores were below national norms in reading and mathematics. 639 F. Supp., at 25. Without more, these statistics are meaningless.

[14] The studies cited in Brown I have received harsh criticism. See, e. g., Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp. Prob. 57, 70 (Autumn 1978); L. Graglia, Disaster by Decree: The Supreme Court Decisions on Race and the Schools 27-28 (1976). Moreover, there simply is no conclusive evidence that desegregation either has sparked a permanent jump in the achievement scores of black children, or has remedied any psychological feelings of inferiority black school children might have had. See, e. g., Bradley & Bradley, The Academic Achievement of Black Students in Desegregated Schools, 47 Rev. Educational Research 399 (1977); N. St. John, School Desegregation: Outcomes for Children (1975); Epps, The Impact of School Desegregation on Aspirations, Self-Concepts and Other Aspects of Personality, 39 Law & Contemp. Prob. 300 (Spring 1975). Contra, Crain & Mahard, Desegregation and Black Achievement: A Review of the Research, 42 Law & Contemp. Prob. 17 (Summer 1978); Crain & Mahard, The Effect of Research Methodology on DesegregationAchievement Studies: A Meta-Analysis, 88 Am. J. of Sociology 839 (1983). Although the gap between black and white test scores has narrowed over the past two decades, it appears that this has resulted more from gains in the socioeconomic status of black families than from desegregation. See Armor, Why is Black Educational Achievement Rising?, 108 The Public Interest 65, 77-79 (Summer 1992).

[15] As Blackstone wrote: "[A] set of great and eminent lawyers . .. have by degrees erected the system of relief administered by a court of equity into a regular science, which cannot be attained without study and experience, any more than the science of law: but from which, when understood, it may be known what remedy a suitor is entitled to expect, and by what mode of suit, as readily and with as much precision, in a court of equity as in a court of law." 3 Blackstone, at 440-441.

[16] The Federal Farmer particularly feared the combination of equity and law in the same federal courts: "It is a very dangerous thing to vest in the same judge power to decide on the law, and also general powers in equity; for if the law restrain him, he is only to step into his shoes of equity, and give what judgment his reason or opinion may dictate; we have no precedents in this country, as yet, to regulate the divisions in equity as in Great Britain; equity, therefore, in the supreme court for many years will be mere discretion." Federal Farmer No. 3, Oct. 10, 1787, in 2 Storing 244. In such a system, the Anti-Federalist writer concluded, there would not be "a spark of freedom" to be found. Ibid.

[17] Certain aspects of this desegregation plan—for example, compensatory educational programs and orders that the State pay for half of the costs— come perilously close to abrogating the State's Eleventh Amendment immunity from federal money damages awards. See Edelman v. Jordan, 415 U. S. 651, 677 (1974) ("[A] federal court's remedial power . . . may not include a retroactive award which requires the payment of funds from the state treasury"). Although we held in Milliken II, 433 U. S. 267 (1977), that such remedies did not run afoul of the Eleventh Amendment, id., at 290, it is difficult to see how they constitute purely prospective relief rather than retrospective compensation. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1191-1192 (3d ed. 1988). Of course, the state treasury inevitably must fund a State's compliance with injunctions commanding prospective relief, see Edelman, supra, at 668, but that does not require a State to supply money to comply with orders that have a backwardlooking, compensatory purpose.

[18] First, the District Court set out to achieve some unspecified levels of racial balance in the KCMSD schools and to raise the test scores of the school districts as a whole. 639 F. Supp. 19, 24, 38 (WD Mo. 1985). In order to achieve that goal, the court ordered quality education programs to address the "system wide reduction in student achievement" caused by segregation, even though the court never specified how or to what extent the dual system had actually done so. Id. , at 46-51. After the State had spent $220 million and KCMSD had achieved a AAA rating, see ante, at 75-76, the District Court decided that even further measures were needed. In 1986, it ordered a massive magnet school and capital improvement plan to attract whites into KCMSD. 1 App. 130-193. In 1987, the District Court decided that KCMSD needed better instructional staff and ordered salary assistance for teachers. Ante, at 78. In 1992, the District Court found that KCMSD was having trouble attracting faculty and staff, and ordered a round of salary increases for virtually all employees. Ante, at 80. Every year the District Court holds a proceeding to review budget proposals and educational policies for KCMSD, and it has formed a "desegregation monitoring committee" to assess the implementation of its decrees. One need only review the District Court's first remedial order in 1984 to comprehend the level of detail with which it has made decisions concerning construction, facilities, staffing, and educational policy. 639 F. Supp. 19; see also Missouri v. Jenkins, 495 U. S. 33, 60-61 (1990) (Kennedy, J., concurring in part and concurring in judgment).

[19] 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).

[20] Justice O'Connor suggests that I am saying something inconsistent with the position I took in Bray v. Alexandria Women's Health Clinic, 506 U. S. 263 (1993), see ante, at 105, but her claim rests on a misunderstanding of my position in that case. I did not think that in Bray we could reach the question whether respondents' claims fell within the "prevention clause" of 42 U. S. C. § 1985(3) simply because the question "`was briefed, albeit sparingly, by the parties prior to the first oral argument.' " Ante, at 105. Rather, I said that "[t]he applicability of the prevention clause is fairly included within the questions presented, especially as restated by respondents . . . ."Bray, supra, at 290 (Souter, J., concurring in judgment in part and dissenting in part). Thus the question was literally before us (as Justice O'Connor believes the foundational question is before us under the second of the State's questions). What is not debatable is that Bray was not preceded by prior litigation indicating we would not consider the "prevention clause" issue, whereas this case was preceded by a refusal to take the very foundational issue that Justice O'Connor argues is within the literal terms of the second question focusing on salaries. See supra, at 143-144. I obviously thought the Court was wrong to reject supplemental briefing on the prevention clause, but that rejection was a far cry from refusing to take the issue.

[21] There is no claim of anything unreasonable in the salary increases merely because the District Court has ordered them, whereas they might otherwise have been set by collective bargaining. For that matter, the Court of Appeals observed that the District Court has not replaced collective bargaining in the KCMSD with a rubber stamping of union requests, but rather has "juridically pruned applications of funding that have been presented to it," 13 F. 3d, at 1174, ordering salary increases that have been far smaller than those requested by the union. See, e. g., App. to Pet. for Cert. A-102, A-104 to A-106 (Order of June 30, 1993).

[22] This was not the only, or even the principal, purpose of the magnet schools. The District Court found that magnet schools would assist in remedying the deficiencies in student achievement in the KCMSD, see supra, at 141-142. Moreover, while the Court repeatedly describes the magnet school program as looking beyond the boundaries of the district, the program is primarily aimed not at drawing back white children whose parents have moved to another district, but rather at drawing back children who attend private schools while living within the geographical confines of the KCMSD, whose population remains majority white, Jenkins v. Missouri, 855 F. 2d 1295, 1302-1303 (CA8 1988). See 1 App. 132 (Order of Nov. 12, 1986) ("Most importantly, the Court believes that the proposed magnet plan is so attractive that it would draw non-minority students from the private schools who have abandoned or avoided the KCMSD, and draw in additional non-minority students from the suburbs"). As such, a substantial impetus for the District Court's remedy does not consider the world beyond district boundaries at all, and much of the Court's opinion is of little significance to the case before it.

[23] Justice O'Connor also rests on supposition. See ante, at 113 ("In this case, it may be the `myriad factors of human existence,' that have prompted the white exodus from the KCMSD . . .") (citation omitted).

[24] The Court states that the Court of Appeals would not have decided the question whether the State and the KCMSD's violations produced segregative effects in the SSD's, as respondents lacked standing to raise the issue. Ante, at 96, n. 9. This statement eludes explanation. In Milliken I, 418 U. S. 717 (1974), we held that before a district court may order the mandatory interdistrict reassignment of students throughout a metropolitan area, it must first find either that multiple school districts participated in the unconstitutional segregation of students, or that the violation within a single school district "produce[d] . . . significant segregative effect[s]" in the others. Id., at 744-745. See ante, at 93; ante, at 105, 108 (O'Connor, J., concurring); see also infra, at 170-171. In the earlier stages of this litigation, the Jenkins respondents sought the mandatory reassignment of students throughout the Kansas City metropolitan area, and the District Court, 3 App. 721-820 (Order of June 5, 1984), and the Court of Appeals, Jenkins, 807 F. 2d, at 665-666, 672, rejected such relief on the grounds that the requirements of Milliken I had not been satisfied. The Court is now saying that respondents lacked standing to raise the issue of interdistrict segregative effects, and that the District Court and the Court of Appeals lacked the authority to reach the issue, even though that is precisely what was required of them under Milliken I.

[25] Thus, the Court errs in suggesting that the District Court has sought to do here indirectly what we held the District Court could not do directly in Milliken I. Ante, at 94. The District Court here has not attempted, directly or indirectly, to impose any remedial measures on school districts innocent of a constitutional violation or free from its segregative effects.

[26] Justice O'Connor thinks I place undue emphasis on the Gautreaux Court's footnote, turning it into an "island, entire of itself.. .," ante, at 107, but itcannot be shrunk to the dimension necessary to support the majority's result. According to Justice O'Connor, Gautreaux holds that "territorial transgression" of any kind "is permissible only upon a showing that [an] intradistrict constitutional violation [has] produced significant interdistrict segregative effects. . . ."Ante, at 106. She finds Gautreaux significant only in reversing the Court of Appeals's finding that such effects had been established on the record of that case, and she understands that the Court remanded the case to the District Court with the understanding that it would order relief going beyond the city of Chicago's boundaries only if it found significant interdistrict segregative effects to exist. Ante, at 107-108.

But this is an implausible reading. Justice O'Connor is correct that in Gautreaux we reiterated the importance of Milliken I' s requirement of significant interdistrict segregative effects, but we did so only in connection with the type of relief at issue in Milliken I, that involving "direct federal judicial interference with local governmental entities" not shown to have violated the Constitution. Gautreaux, 425 U. S., at 294; see generally id., at 292-298. As the language I have quoted above demonstrates, we made it very clear in Gautreaux that the District Court could order relief going beyond the boundaries of the city of Chicago without any finding of such effects, because that relief would impose no obligation on governmental units innocent of a constitutional violation and free of its effects. Indeed, when we summarized our holding at the conclusion of our opinion, we made the point yet again. "In sum, there is no basis for the petitioner's claim that court-ordered metropolitan area relief in this case would be impermissible as a matter of law under the Milliken decision. In contrast to the desegregation order in that case, a metropolitan area relief order directed to HUD would not consolidate or in any way restructure local governmental units." Id., at 305-306. While Justice O'Connor, ante, at 107-108 (and the Court, ante, at 97) seeks to make much of the fact that we did not order metropolitan relief ourselves in Gautreaux, but rather remanded the case to the District Court, we did so because we recognized that the question of what relief to order was a matter for the District Court in the first instance. "The nature and scope of the remedial decree to be entered on remand is a matter for the District Court in the exercise of its equitable discretion, after affording the parties an opportunity to present their views." 425 U. S., at 306. Nowhere did we state that before the District Court could order metropolitan area relief, it would first have to make findings of significant segregative effects extending beyond the city of Chicago's borders.