dissenting.
It is easy to be seduced by the majority’s superficial analysis of the issues involved in this case and lose sight of the fact that this case is not about inflexible quotas, busing, or local control of school boards. Rather, this case concerns the constitutional rights of black children who have been and continue to be denied the right to attend school in a unitary school system in which there are simply schools rather than “black” schools or “white” schools. The question before us is whether after more than thirty years of state-sanctioned racial isolation of black children in the Cleveland schools and more than twenty years of active resistance to the district court’s orders requiring desegregation of those schools, the Cleveland Board of Education should be allowed to implement an assignment plan that will return Cleveland schools to a state of racial segregation. Because I believe the answer to that question is no, I respectfully dissent from the majority’s opinion.
I. BACKGROUND
My disagreement with the majority begins with a different understanding of the facts in this case. Although the majority attempts to paint a picture of a school desegregation process in which all parties harmoniously worked toward the goal of *474establishing a unitary school'system, the record reveals a much more menacing history, one of resistance, defiance, and utter disregard for the district court’s orders or, more importantly, for the rights of black children. Absent from the majority’s narration is a description of the Cleveland Board of Education’s refusal to halt its discriminatory practices and its undermining of the district court’s attempts to dismantle Cleveland’s unconstitutional dual school system.
Although the defendants’ discriminatory policies, customs and practices pre-date the instant lawsuit by fifty years or more, the legal action that commenced this action began in 1973 with the filing of this lawsuit against the Cleveland Board of Education and various other defendants. On August 31,1976, after a lengthy bench trial, Judge Frank J. Battisti found in a comprehensive 203-page opinion, that from 1940 to 1975 the Cleveland Board of Education and the Ohio State Board of Education engaged in a pattern of intentional and pervasive conduct for the express purpose of maintaining and perpetuating a dual school system, with certain schools designated for black students and others for whites. See Reed v. Rhodes, 422 F.Supp. 708, 796 (N.D.Ohio 1976). These defendants undertook and accomplished their segregative purpose in a variety of ways. For example, the district court found that the defendants used “relay classes” — the practice of teaching one group of students in the morning and another in the afternoon, such that those students received abbreviated and inferior instruction — and portable classrooms to ease overcrowding at majority black schools instead of transferring these students to neighboring majority white schools that had sufficient space. Reed, 422 F.Supp. at 782-83. Even when black students were transported to majority white schools for classes, the black students traveled as a group, including their instructor, and formed a single, separate unit at the receiving school. Every attempt was made, the court observed, to keep the transported black students isolated from the remainder of the student body. See id. at 783. In addition, the Cleveland Board of Education used devices such as special transfers for individual students and optional attendance zones to maintain segregated student bodies. See id. at 784. With respect to residential segregation, the court concluded that the Cleveland Board of Education contributed to residential segregation of the city by constructing schools to serve the segregated housing communities created by Cuya-hoga Metropolitan Housing Authority (“CMHA”). See id. at 789-90. The combination of the Cleveland Board of Education’s school construction program and CHMA’s discriminatory housing policies resulted in schools that could be identified as “black” or “white” based on location and the race of the student population. See id.
As a result of the defendants’ actions, the majority of children who attended public schools in Cleveland were educated in a segregated setting. See id. This intentional separation from their white counterparts led to further abuses of the rights, of black children, which included the assignment of lesser qualified teachers to black schools and the assignment of black children to overcrowded, inadequate facilities. See id. at 782-92.
Following its finding of de jure segregation, the district court permanently enjoined the defendants “from discriminating on the basis of race in the operation of the public schools of the City of Cleveland, and from creating, promoting, or maintaining racial segregation in any school or other facility in the Cleveland Public Schools.” See id. at 797. The district court then issued an order providing Instructions and Guidelines to assist the defendants in the development of a desegregation plan that would provide a comprehensive, system-wide remedy to eliminate the vestiges of the city’s segregated school system. See JA at 625 (District Court Order: 12/7/76). After the appointment of a Special Master and two experts on school desegregation *475as well as the involvement of the Cleveland community, the district court issued a comprehensive Remedial Order on February 6, 1978, which required the defendants to desegregate Cleveland’s school system, including the area of student assignments. See Reed v. Rhodes, 455 F.Supp. 569 (N.D.Ohio 1978). The defendants were required to bring the racial composition of each school into compliance with a maximum 15% deviation from the percentage of black students in the school system as a whole. See Reed v. Rhodes, 472 F.Supp. 615, 617 (N.D.Ohio 1979) (stating that “[a] fifteen percent deviation from the percent ratio of the district as a whole is the maximum deviation that would be reasonable”). In addition, the Remedial Order required that the defendants desegregate administrative, supervisory, and teaching personnel, all academic programs, and extracurricular activities. From the beginning, however, the Cleveland Board of Education actively resisted implementation of the Remedial Order.1 For example, almost ten years after the district court’s initial finding of de jure segregation in 1976, the defendants had yet to demonstrate any meaningful compliance with the district court’s directives. As a result, in 1987, the district court approved an Unfinished Compliance Agenda, which set forth the fourteen components of its Remedial Order and stated in broad terms the systems and policies that would be established for each component. See JA at 773 (District Court Order: 8/14/87). In approving the Agenda, the district court stated:
[T]he court gives the [defendants] flexibility in shaping the systems and policies identified in the document. This willingness to give defendants flexibility must not be treated as an invitation to delay even further compliance with the Court’s remedial orders.... The Unfinished Compliance Agenda is ample evidence of local defendant’s failure to implement remedial orders over the past nine years.
Id. (emphasis added).
Five years later, the district court once again was compelled to state its dissatisfaction with the defendants’ lack of compliance during the course of the litigation:
Despite judicial rulings, upheld on appeal, that the defendants engaged in clear and intentional racial segregation, for more than a decade they displayed recalcitrance and hostility toward the laws of the land and the remedial orders of this court that not only prevented progress in this case but also inflicted grievous wounds on the community as a whole. Of late, no one has been heard to assert that the schools are operated in a satisfactory manner.... Some would have preferred to continue denying black students educational opportunities. The time has passed when they were able to speak openly and they have learned to use code words. It is time though to stop using code words. It is time instead to commit ourselves to desegregated and improved schools for all of our students.
District Court Order: 4/2/92.
In 1992, the district court ordered the parties to commence negotiations to bring the case to a just and orderly resolution and to reach an agreement regarding the changes, if any, that would be implement*476ed in the 1994-95 school year and beyond, as well as an agreement on financing those changes. The parties were encouraged to present the court with a settlement agreement by February 1,1994.
Also at this time, the Cleveland Board of Education, proclaiming a newfound desire to improve educational opportunities for all children, filed a motion to adopt an alternate student assignment plan termed “Phase I,” which exempted six elementary schools from the mandatory student assignment process set forth in the Remedial Order. The district court granted the motion on August 5, 1992. Because these six schools drew their students from some of the more racially integrated neighborhoods in Cleveland, the student bodies were naturally integrated. Encouraged by what they considered to be phenomenal results and tremendous community approval of Phase I, the Cleveland Board of Education developed a comprehensive plan popularly referred to as Vision 212 and filed a motion with the court for adoption of this plan. The Ohio State Board of Education filed objections to the adoption of Vision 21, citing the increased number of racially identifiable schools and the local defendants’ indifference to that increase. In addition, the plaintiffs filed a memorandum citing their concerns regarding the adoption of Vision 21. Like the state defendants, plaintiffs’ primary concern was the specter of racially identifiable schools. With the Cleveland Board of Education’s assurance that the number of racially identifiable schools would not increase with parental choice and that integration would be maintained, the parties entered into an agreed order on July 21, 1993, to implement Vision 21, including its parental choice component, for the 1993-94 school year. That year, as few as forty-one and as many as forty-nine of one hundred twenty-seven schools fell outside the 15% racial parameter.. All twenty of the schools that contained a disproportionately high percentage of black students were located on Cleveland’s predominantly black East Side. Of the twenty-nine schools that had a disproportionately low percentage of black students, twenty-seven were located on Cleveland’s predominantly white West Side.
Considering the explosion of racially identifiable schools under Vision 21’s pa-, rental choice component, the plaintiffs continued to advocate retention of the Remedial Order’s 15% requirement during negotiation of a settlement agreement. The parties ultimately entered into a Settlement Agreement on February 24, 1994, agreeing to maintain racially balanced schools in accordance with the 15% parameter until July 1, 2000. See JA at 986 (Settlement Agreement at pp. 2). The Settlement Agreement was converted to a Consent Decree on May 25, 1994.3 See *477Reed v. Rhodes, 869 F.Supp. 1265 (N.D.Ohio 1994).4
Despite the language of the Consent Decree, on January 5, 1995, the local defendants filed motions for a declaration of unitary status as to student assignments and a dissolution of the 15% student assignment requirement.5 Before this motion was ruled upon, however, the district court appointed Daniel J. McMullen as a special master to supervise discussions and facilitate an agreement between the parties regarding student assignments; unfortunately, the parties could not reach such an agreement.6 Ultimately, on May 16, 1995, the parties entered into a Joint Stipulation, pursuant to which the defendants withdrew their motion for a declaration of partial unitary status. In addition, the Joint Stipulation provided that, for the 1995-96 school year only, student assignments would be based on defendants’ proposed plan and that any increase in the number of schools exceeding the 15% requirement would not be deemed a violation of the Consent Decree. That year, fifty-eight schools — -nearly one-half of the city’s public schools — fell outside the 15% parameter. See JA at 1465 (Report of Superintendent Richard A. Boyd Evaluating the Results of Pupil Assignments for the 1995-96 School Year).
Pursuant to the Joint Stipulation, the parties were obligated to file a settlement agreement as to student assignments by December 31, 1995. The parties failed to do so because they were unable to reach an accord. On January 3, 1996, the defendants, moved for an order to modify the Consent Decree to eliminate the 15% requirement and for a declaration of unitary status as to student assignments. On May 8, 1996, the district court granted the motion.7 The majority opinion affirms that order.
II. DISCUSSION
Our analysis in this case, and indeed, in any school desegregation case starts with Brown, which enunciated the basic tenet that “in the field of public education the doctrine of separate-but-equal has no place.” Brown v. Board of Educ. (Brown I), 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954). However, crucial to the issues presented in this case are three cases decided a few years after Brown I, cases in which the Supreme Court expounded upon its holding in Brown I, and recognized that due to the force with which segregated school systems resisted the Court’s decision in Brown I, its “all deliberate speed” directive was woefully inadequate. See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Green v. New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 *478L.Ed.2d 554 (1971). Because any significant discussion of these cases is conspicuously absent from the majority opinion, a brief discussion of the bedrock principles set forth in this trilogy of cases warrants mention here. The following three cases, all of which are controlling Supreme Court precedent, are among those that guide my analysis.
Cooper
In Cooper, the Supreme Court made clear that public opinion cannot divest lower courts of their duty to effectuate the Court’s directives regarding school desegregation. Specifically, the Court explained as follows:
In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers, nor nullified indirectly by them through evasive schemes for segregation, whether attempted “ingeniously or ingenuously.” Smith v. Texas, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84 [1940].
Cooper, 358 U.S. at 17, 78 S.Ct. 1401. Thus, despite the majority’s claim to the contrary, neither the public’s so-called “support” of Vision 21, nor potentially adverse public reaction to the district court’s decision, overrides the district court’s obligation to ensure that the Supreme Court’s directives are enforced.
Green
In Green, the Supreme Court criticized so-called “freedom-of-choice” plans that did not promise to effectively eliminate segregation. The Court concluded that “[t]he burden on a school board today is to come forward with a plan that promises realistically to work, and promises realistically to work now. ” Green, 391 U.S. at 439, 88 S.Ct. 1689 (emphasis in original). In addition, the Court, unlike the majority in this case, recognized that “a plan that at this late date fails to provide meaningful assurance of prompt and effective disestablishment of a dual system is also intolerable.” Id. at 438, 88 S.Ct. 1689. Further, the Supreme Court noted that “[t]he obligation of the district courts, as it always has been, is to assess the effectiveness of a proposed plan in achieving desegregation..” Id. at 439, 88 S.Ct. 1689 (emphasis added). Thus, it follows that “achieving desegregation,” not yielding to public pressure or parental “choice,” is the district court’s primary obligation. The majority’s decision not only allows the district court to cave in to such public pressure, but rewards the defendants for their dilatory and improper tactics. Indeed, here, the very reason that the case sub judice was still in the interim remedy phase was due to years of the defendants’ refusals to comply with the district court’s orders directing them to develop a plan that “promises realistically to work now.”
Swann
In Swann, the Supreme Court provided the following guidance on the very type of parental choice and school assignments at issue in this case. Significantly, the Court opined as follows:
Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively, awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.
Swann, 402 U.S. at 28, 91 S.Ct. 1267. Further, the Court recognized what the *479majority fails to recognize here, that an assignment plan (or indeed a parental “choice” plan) is “not acceptable simply because it appears to be neutral.” Id.
Given the degree of recalcitrance by the defendants, it is clear that the Supreme Court’s mandates in Cooper, Green and Swann were consistently flouted. For the majority opinion to harp on the age of this case and to allow impatience to be the basis for violating the Supreme Court’s clearly enunciated standards is suspect at best.
A. Modification of the Consent Decree
The district court found, and the majority agrees, that the irreconcilable conflict between the 15% requirement and Vision 21’s parental choice assignment plan, both adopted in the Settlement Agreement and Consent Decree, represented a significant changed circumstance and, therefore, modification of the Consent Decree was proper. I disagree. First and foremost, the defendants did not demonstrate that there were significant changed and unforeseen circumstances justifying such a modification. See Rufo v. Inmates of Suffolk County, 502 U.S. 367, 384-88, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). Second, the proposed modification was not suitably tailored to the alleged changed circumstance. See id. at 391, 112 S.Ct. 748. As a result, the district court abused its discretion by modifying the Consent Decree when the legal standard for such a modification was not met.
As the majority explains, a party seeking modification of a consent decree must establish a significant change in the factual circumstances of the case that makes compliance with the consent decree substantially more onerous, shows a change in the law that renders the obligations placed upon the parties impermissible under federal law, or shows that the law has changed to make legal what the consent decree was designed to prevent. See id. at 384-88, 112 S.Ct. 748. Modification should not be granted, however, when a party relies upon events that actually were anticipated at the time it entered into such a decree. See id. at 386, 112 S.Ct. 748.
Here, any conflict between the 15% requirement and Vision 21’s parental choice plan does not represent a significant change in circumstances justifying modification of the Consent Decree. The difficulty of balancing student populations in accordance with the 15% parameter while permitting parental choice was neither a new nor unforeseen circumstance. See id. at 385, 112 S.Ct. 748. Based on the implementation of parental choice during the 1993-94 school year, the parties were well aware that the application of parental choice significantly increased the number of schools that fell outside the 15% parameter; that year the number of schools not in compliance with the 15% requirement increased from between ten to fourteen to between forty-one to forty-nine out of one hundred and twenty-seven schools, depending on whose statistics one adopts. As Rufo advises, modification should not be granted when a party relies upon events that were actually anticipated at the time it entered into a consent decree. See id. at 386, 112 S.Ct. 748. Here, the defendants were certainly cognizant that parental choice would dramatically increase the number of racially identifiable schools. The plaintiffs, also anticipating this fact, refused to abandon the 15% parameter for precisely that reason. Because the difficulty of implementing both the parental choice plan and the 15% requirement was anticipated by the parties at the time of the negotiations that led to the Settlement Agreement and the Consent Decree, that difficulty cannot serve as a significant changed factual circumstance justifying modification.8
*480Another glaring defect in the district court’s decision is its failure to engage in any meaningful analysis of whether the proposed modification, elimination of the 15% requirement, was suitably tailored to address the so-called “irreconcilable” conflict between the requirement and Vision 21’s parental choice student assignment plan. Once the party requesting modification has met its initial burden of establishing an unforeseen, changed circumstance, a court must then determine whether the proposed modification is suitably tailored to the changed circumstance. See id. at 391, 112 S.Ct. 748. In evaluating the appropriateness of the modification, the court must take into account three concerns. First, a proposed modification must not create or perpetuate a constitutional violation. See id. Second, a proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor, meaning that if the consent decree provides for more protection than the Constitution requires, courts should not approve modifications that seek to conform only to the bare minimum the Constitution requires. See id. Finally, courts should not inquire whether any of the provisions could have been successfully opposed. See id. It is the first consideration that renders the proposed modification in this ease inappropriate.
Modification of the subject Consent Decree clearly perpetuates racially identifiable schools. Segregated schools are the ends and means of a policy of de jure segregation. See Freeman, 503 U.S. at 474, 112 S.Ct. 1430 (noting that racial exclusion was both the means and ends of a policy motivated by disparagement of, or hostility toward, the black race). Racially identifiable schools are one of the primary vestiges or effects of state-sanctioned segregation. See Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 262, 111 S.Ct. 630, 112 L.Ed.2d 715 (1991) (Marshall, J., dissenting). Therefore, the struggle for equality of schools involves not only an assurance that students receive the same educational resources, but that they do so in a racially integrated environment rather than in a racially isolated one. See Brown I, 347 U.S. at 495, 74 S.Ct. 686 (holding that separate educational facilities are inherently unequal). Black children are not only entitled to non-discriminatory treatment in the future, they also must receive “what Brown I promised them: a school system in which all vestiges of enforced racial segregation have been eliminated.” Wright v. Council of the City of Emporia, 407 U.S. 451, 463, 92 S.Ct. 2196, 33 L.Ed.2d 51 (1972). Accordingly, school districts are “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” Green, 391 U.S. at 437-38, 88 S.Ct. 1689.
We need not speculate whether schools in Cleveland would become resegregated if the 15% requirement were eliminated and parental choice were adopted; there is ample evidence of that result. In 1995-96, when virtually unfettered parental choice was allowed, there were fifty-eight out of one hundred twenty-seven schools outside the 15% requirement. Therefore, elimination of the 15% requirement and the implementation of a “choice plan” that will lead to an increase in the number of racially identifiable schools, the primary vestige of a de jure school system, continues and perpetuates the unconstitutional condition of school segregation. See Rufo, 502 U.S. at 391, 112 S.Ct. 748.
Considering that the defendants have failed to demonstrate a significant changed circumstance justifying modification and *481that the proposed modification would perpetuate an unconstitutional condition, the district court’s modification of the Consent Decree was improper. I therefore would reverse the district court’s decision on this issue.
B. Unitary Status
Similar to its decision to modify the Consent Decree, the district court’s decision to declare unitary status and withdraw its supervision in the area of student assignments is unsupported by the record and the law. A school district, once segregated by law, is required to take all steps necessary to eliminate the vestiges or effects of de jure segregation. See Freeman v. Pitts, 503 U.S. 467, 485, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). Thus, a school system seeking relief from a desegregation order has the burden of proving that it has complied in good faith with the desegregation order since it was entered and that the effects of state-sanctioned segregation have been eliminated to the extent practicable. See Dowell, 498 U.S. at 249-50, 111 S.Ct. 630. In Freeman, the Supreme Court cleared the way for district courts to relinquish control incrementally over certain aspects of a school’s operation found to be in compliance with the desegregation order while maintaining supervision over other aspects that are not yet in compliance. See 503 U.S. at 489, 112 S.Ct. 1430. Therefore, it is without question that a federal court in a school desegregation case has the discretion to order incremental or partial withdrawal of its supervision or control. See id. The question is the point at which such discretion may or can be exercised.
Freeman instructs that courts must consider three factors in determining whether such partial withdrawal of supervision is proper: 1) whether there has been full and satisfactory compliance with the decree in those aspects of the system in which 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 parents of the children of the “once disfavored race” and to the public, 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 predicates for judicial intervention in the first instance. See id. at 491, 112 S.Ct. 1430. Two of these three factors fail to support the district court’s withdrawal of judicial supervision over student assignments in Cleveland.
1. Full and Satisfactory Compliance
A school district claiming full and satisfactory compliance in the area of student assignments must' demonstrate that it has eliminated the effects of de jure segregation in the area of student assignments to the extent practicable. One vestige of de jure segregation in the area of student assignments is the existence of racially identifiable schools. When such schools exist, a school district must establish that the current racial imbalance was attributable to independent factors and not traceable to school board action. See id. at 494, 112 S.Ct. 1430. Therefore, for the defendants to succeed in their motion for unitary status with respect to student assignments, they must establish that the Cleveland Board of Education has eliminated racial segregation to the extent practicable and that the existence of any racially identifiable schools is not traceable to its actions. See Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 465 n. 13, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979).
In Freeman, the Court, addressing this factor, agreed with the district court’s finding that the Dekalb County School System had demonstrated full compliance in the area of student assignments because it had achieved desegregation to the extent practicable. Though there were racially identifiable schools in the district, the existence of those schools was not traceable to school board action. See 503 U.S. at 495, 112 S.Ct. 1430. Rather, resegregation of *482the system was attributable to demographic changes that had taken place in Dekalb County over a twenty-year period. See id. at 494, 112 S.Ct. 1430. Because the current resegregation in Dekalb County was the result of demographic shifts rather than school board policy, the school district was under no duty to remedy the resegre-gation. See id. at 495, 112 S.Ct. 1430.
In this ease, the defendants’ claim that Freeman supports the declaration of partial unitary status because segregation had been eliminated to the extent practicable and that the increase in the number of one-race schools was attributable to demographic -shifts and parents’ individual choices rather than Cleveland Board of Education action. As evidence that the school district was desegregated and current racial imbalances were not traceable to school board action in any proximate way, the defendants point to a 1991 Office of School Monitoring and Community Relations (OSMCR)9 Report stating that the Cleveland Board of Education had complied in large part with the district court’s orders with respect to student assignments and that ho evidence suggested that the Cleveland Board of Education was responsible for the racially identifiable schools existing at that time.10 JA at 791.
For the sake of argument, even if the Cleveland schools were desegrated at the time of the OSMCR Report in 1991, the Supreme Court has made clear that unitary status in the area of student assignment cannot be hinged on the attainment of such status for a brief moment. See Freeman, 503 U.S. at 478, 112 S.Ct. 1430. More important, regardless of whether the Cleveland school district was desegregated in 1991, the current racial imbalance existing in the district is traceable to Cleveland Board of Education action. The increase in the number of racially identifiable schools is the result of a school board plan permitting parents to choose segregated schools for their children to attend rather than adhering to the 15% requirement. This is distinguishable from the facts of Freeman, in which parents chose to move to a different part of the city so that their children could attend certain schools and, as a result of those residential choices, schools then became racially identifiable. In Cleveland, by contrast, the Cleveland Board of Education made it possible for schools to become racially identifiable by directly offering parents a segregated choice.11 Against the background of former state sponsorship of one-race schools, any state-sponsored, plan that allows for the persistence of racially identifiable schools perpetuates the message of racial inferiority associated with segregation. *483See Dowell, 498 U.S. at 261, 111 S.Ct. 630 (Marshall, J., dissenting). Because the choices exercised by the parents in Cleveland are done so in the context of a state-sponsored plan which offers a segregated schooling choice, it is indisputable that the increase in the number of racially identifiable schools since implementation of the parental choice plan is traceable to Cleveland Board of Education action.12
Neither the district court, nor the majority for that matter, addresses whether the allowance of parental choice pursuant to Vision 21 is tantamount to state action. Instead, both base their analyses on a comparison of the number of racially identifiable schools in the Dekalb County School System and the number of racially identifiable schools now existing in Cleveland. Because racially identifiable schools in Dekalb County significantly outnumber those existing in Cleveland, the majority reasons that because the Supreme Court found that Dekalb County was unitary, then surely Cleveland is as well. This reasoning ignores the fundamental analysis required by consideration of the three factors articulated in Freeman. Such an analysis should not be based on comparison of numbers with other districts, but on whether a specific district has been in full and satisfactory compliance with respect to student assignments and the school board’s contribution to racially identifiable schools. Contrary to the district court’s opinion, Freeman did not establish any benchmarks for allowable percentages of racially identifiable schools. Following this faulty reasoning to its logical conclusion, the issue of whether schools are unitary with respect to student assignments would be determined simply by comparing the number of racially identifiable schools in that district with those existing in De-kalb County. Such an analysis conflicts with more than forty years of school desegregation case law.
Furthermore, contrary to the defendants’ assertions, there is no evidence in the record suggesting that the increase in racially identifiable schools is attributable to demographic factors. At the time the desegregation order was entered, the West Side of Cleveland was predominantly white and the East Side was predominantly black. That has not changed since this case was filed more than twenty years ago, a fact that the Cleveland Board of Education’s senior officials have acknowledged. Since implementation of Vision 21’s parental choice plan, Cleveland schools have experienced rapid segregation that mirrors the residential segregation of the city. Schools that are more than 90% black are located on the East Side of Cleveland, while schools that are predominantly white are located on the West Side. Although the defendants cite changing demographics as a basis for relinquishing supervision, they, as well as the majority and district court, fail to identify such changing demographic factors. Their failure to do so is understandable given that there were no significant changes in demographics, a fact readily acknowledged by the Cleveland Board of Education.
Had the majority engaged in an analysis of the current racial imbalance existing in Cleveland, it would have reached the inescapable conclusion that the increase in the number of racially identifiable schools is attributable to Cleveland Board of Education action. Unlike in Freeman, demographic changes did not play a role in the current racial imbalance existing in Cleveland public schools. Accordingly, the record does not support a finding that there has been full and satisfactory compliance with respect to student assignments. “It *484is a hollow remedy indeed where ‘after supposed “desegregation” the schools remained segregated in fact.’ ” Milliken v. Bradley, 418 U.S. 717, 808, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Marshall, J., dissenting).
2. Good Faith
In addition, the defendants have not demonstrated good faith in complying with the district court’s desegregation orders over time. See Dowell, 498 U.S. at 249-50, 111 S.Ct. 630. A history of good-faith compliance is evidence that current racial imbalances are not the product of de jure segregation and enables a court to better accept a school board’s representation that it will not intentionally discriminate in the future. See Freeman, 503 U.S. at 498, 112 S.Ct. 1430. When a school district has not demonstrated good faith under a comprehensive plan to remedy ongoing violations, courts have without hesitation approved comprehensive and continued district court supervision. See id. at 499, 112 S.Ct. 1430 (citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 461, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979)).
Throughout the period of judicial supervision, the Cleveland Board of Education has failed to demonstrate good faith in its compliance with the district court’s orders for any reasonable length of time. The late Judge Battisti stated that the record amply demonstrated the Cleveland Board of Education’s history of indifference, active resistance and defiance in advancing its Remedial Order. Judge Krupansky made a nearly identical observation in 1994 in commenting that the Cleveland Board of Education exhibited “a lack of good faith.” Further, at one point, the district court sua sponte requested an investigation of Cleveland school officials because of their continued resistance. And, in 1992, the district court admonished the local defendants for their failure to comply with its orders.
Most telling, however, is the defendants’ course of conduct with respect to the Consent Decree. As recounted supra, the defendants agreed to the Consent Decree and it was tentatively approved by Judge Battisti on March 18, 1994. Reed v. Rhodes, 869 F.Supp. 1265 (N.D.Ohio.1994). From the very beginning, however, defendants refused to abide by its terms. Dr. Ted Sanders, State Superintendent of Public Instruction, stated that the Cleveland Board of Education knew at the time it signed the Consent Decree that it was not altering its student assignment programs to comply with the decree, yet the Board failed to disclose this fact to either the plaintiffs or the state defendants. J.A. at 1404. The failure to disclose its true intentions, coupled with their long history of active resistance to Judge Battisti’s orders, runs contrary to a finding of good faith.
Equally indicative of the defendants’ bad faith with respect to the Consent Decree is that they sought to modify the decree by motion on January 5, 1995, just nine months after it was negotiated. Ostensibly, the defendants were concerned with the reassignment of some 400 students. Whatever problems the reassignment of those students presented were surely foreseeable nine months earlier when the Consent Decree was effectuated. Instead, the only material change in circumstances during the interim was that Judge Battisiti had passed away, and Judge Krupansky was assigned to the case on November 1, 1994. Two months later, the defendants filed their motion seeking relief from the Consent Decree. The plaintiffs contend that defendants viewed Judge Krupansky as more receptive to their position. Whether that is true or not is subject to debate; however, Judge Krupansky did ultimately grant the defendants’ request.
I am thus convinced that any minimal good faith exhibited by the defendants is outweighed by years and years of resistance to desegregation. Accordingly, any finding of good faith was clearly erroneous. Indeed, it is entirely unclear to me what facts influenced Judge Krupansky to change his initial conclusion that the defen*485dants demonstrated anything but bad faith in complying with the district court’s remedial orders.
3. Supervision Required To Ensure Compliance In Other Areas
The district court concluded that continued supervision in the area of student assignments was not required to ensure compliance in other areas, such as faculty assignments and extracurricular activities. It does not appear that the district court clearly erred with regard to this factor. Thus, I accept that continued supervision over student assignments is not necessary to ensure compliance in other areas of the school system.
Nevertheless, the other two Freeman factors, full and satisfactory compliance in the area of student assignments and good faith, establish that the district court’s withdrawal of its supervision was premature. The defendants plainly and simply have not demonstrated that they have eliminated segregation in that aspect of the school system to the extent practicable. Nor have they proven that the increase in racially identifiable schools was not caused by Cleveland Board of Education action. To the contrary, defendants’ lack of good faith supports the inference that not only is the current resegregation attributable to their actions, but once they are not subject to judicial supervision, further reseg-regation is likely to occur. See Freeman, 503 U.S. at 499, 112 S.Ct. 1430 (“A finding of good faith ... reduces the possibility that a school system’s compliance with court orders is but a temporary constitutional ritual.”) (quoting Morgan v. Nucci, 831 F.2d 313, 321(1st. Cir.1987)). There was simply no legal or factual basis for the district court to declare partial unitary status in this case.
Though it is not necessary to do so for purposes of analysis pursuant to Freeman, I would be remiss if I did not address what seems to be a paramount concern of the district court and the majority: the length of time of court supervision of the Cleveland school district. It is true that the Supreme Court never contemplated perpetual judicial oversight of former de jure segregated school districts. However, the Constitution requires that the job of school desegregation be fully . completed and maintained so that the harm identified in Brown does not recur upon lifting the decree. The Cleveland Board of Education’s history of unflagging defiance and its implementation of a plan that is rapidly returning the school district to a state of segregation suggests that lifting the decree is premature at this point. The Constitution has “imposed on school districts an unconditional duty to eliminate any condition that perpetuates the message of racial inferiority inherent in the policy of state-sponsored segregation.” Dowell, 498 U.S. at 268, 111 S.Ct. 630 (Marshall, J., dissenting). Courts should be hesitant to terminate court supervision prior to fulfillment of this duty merely because litigation has gone on for a long time. The focus should not be on the length of the court’s supervision, but on the factors and circumstances that make such lengthy supervision necessary. As Justice Blackmun noted: “[A]n integrated school system is no less desirable béeause it is difficult to achieve, and it is no less a constitutional imperative because that imperative has gone unmet for [decades].” Freeman, 503 U.S. at 518, 112 S.Ct. 1430.
In Cleveland, this litigation has stretched nearly three decades not because of insuperable difficulties of implementing the commands of the Supreme Court and the Constitution, but because of the unpardonable recalcitrance of the defendants. This court should not affirm termination of supervision simply because the defendants have delayed compliance or because they claim, without offering proof, that they are not responsible for the increasing number of racially identifiable schools.
Desegregation is not an easy task. Nonetheless, neither the difficulty in *486achieving desegregation nor the length of time it takes can take precedence over the constitutional guarantee of equal justice. For all these reasons, I dissent from the majority’s decision to affirm the district court’s declaration of partial unitary status and its withdrawal of supervision over student assignments.
C. Ex Parte Contacts
The plaintiffs filed a motion for recusal pursuant to 28 U.S.C. § 455(a), asserting that they “obviously and consistently” were excluded from numerous meetings and conferences “concerning financial, organizational, and academic issues which bear directly on contested remedial issues in this lawsuit.” They claim that Judge Krupansky engaged in a succession of improper, disqualifying ex parte contacts with state defendants and officials, local defendants and staff, and private citizens. Judge Krupansky denied the motion.
The plaintiffs claim that Judge Krupan-sky abused his discretion in failing to re-cuse himself. They contend that the judge’s numerous ex parte contacts evidence his bias, prejudice and partiality. In his Order denying the plaintiffs’ recusal request, Judge Krupansky concedes that he had ex parte meetings in his chambers with Dr. Sanders, the State Superintendent of Public Instruction; his assistants, Dr. John Goff and Dr. Richard Boyd; and state defendants’ counsel, Mark O’Neill. Judge Krupansky also acknowledges that he met, on six or seven occasions, with corporate executive representatives of civic organizations regarding the financial and management capabilities of the school system, including Robert Rawsen from the Cleveland Institute for Education. Judge Krupansky likewise recalls meetings and other contacts with the State of Ohio’s Auditor, James Petro, and members of his staff. It also appears that Judge Krupan-sky had several contacts with Wanda Arnold, the City of Cleveland’s general counsel.
In response to these allegations, Judge Krupansky asserts that the in-chambers meetings involved his oversight of the school system, which he had placed in state receivership and therefore were ministerial in nature. The judge also notes that he invited the plaintiffs’ counsel to attend the meetings, not initially, but at a later date, and that the plaintiffs’ counsel chose not to attend.
28 U.S.C. § 455(a) provides: “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Section 455(a) is designed “to promote public confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (emphasis added). Therefore, when the question of a judge’s impartiality is a close one, the judge must recuse himself. See United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir.1993).
This issue places me in the unenviable position of determining whether a colleague on this court, who volunteered to sit by designation as a district judge to hear this case upon Judge Battisti’s death, abused his discretion in refusing to recuse himself. It really does not matter, for these purposes, that this was a racially polarized desegregation case; the only question is whether the record evidences bias or prejudice, or whether Judge Kru-pansky’s impartiality might reasonably be questioned. Reluctantly, and with all due respect to my colleague, I find that Judge Krupansky should have recused himself given the clear and unequivocal appearance of partiality.
Although § 455(a) sets forth the statutory'requirement for recusal, federal judges must also abide by a Code of Judicial Conduct for United States Judges, as adopted by the Judicial Conference of the United States. There are two canons of the Code that, in my view, would apply to *487Judge Krupansky’s handling of this case. The first, Canon 3(A)(4), provides:
A judge should accord to every person who is legally interested in a proceeding, or the person’s lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding. A judge may, however, obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. A judge may, with consent of the parties, confer separately with the parties and their counsel in an effort to mediate or settle pending matters, (emphasis added)
The second Canon 3(C)(1)(a), reads:
A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which ... the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding ... (emphasis added)
In this case, Judge Krupanksy does not deny holding meetings with state educational officials subsequent to the district court’s order of March 3, 1995, directing the state to assume management of the Cleveland school district. JA at 1626-27 (District court order: 2/1/96 at pp.. 14-15). According to Judge Krupansky, when legal counsel attended these meetings the discussions addressed “collateral state vs. local board jurisdictional conflicts ...” Judge Krupansky denies discussing “any substantive legal issues anchored in the mandates of [the] Court’s various desegregation remedial orders and consent decrees, or those joined by the local board’s motion of January 5, 1995 ...” Plaintiffs were neither informed of nor invited to these meetings.13 Judge Krupansky stated that the meetings were purely ministerial, concerning the fiscal and administrative operations of the school district, and did not involve issues between the parties as adversaries in the pending litigation. See id. In addition, Judge Krupansky stated that he personally explained the nature of the meetings to plaintiffs’ counsel, Mr. Hardiman and Mr. Atkins, once he received word in June 1995 that they had expressed concern about the nature of the meetings. See id. at 1630. Judge Kru-pansky also stated that he personally extended an invitation to both men to attend the meetings, but that over an eight-month period neither followed up on that invitation. See id.
It is without dispute, then, that Judge Krupansky (1) met repeatedly with defendants or their representatives; (2) conducted those meetings off the record; (3) failed to advise plaintiffs’ counsel about the meetings prior to their occurrence; (4) advised plaintiffs’ counsel about the meetings only after they had taken place and the issue had been aired by the newspapers; and (5) advised plaintiffs’ counsel of some, but not all, of the meetings. It is also uncontroverted that a number of topics regarding the overall operation of the school district were discussed, including general management of the district, the district’s position on a variety of related matters, and the status of pending attorneys’ fees applications — which, in and of itself, is related directly to this case. Taken together, or viewed separately, these many ex parte contacts would lead any party in the position of the plaintiffs to question the fairness of the litigation. I simply do not see how any objective person could reach the contrary conclusion.
*488Looking first at the Canons, it is clear that they were each designed to afford parties their fair day in court. The cornerstone of fair judicial proceedings is a fair and impartial judicial officer. The Due Process Clause requires nothing less. As we have previously explained:
It is beyond dispute that “[a] fair trial in a fair tribunal is a basic requirement of due process. Fairness, of course, requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) ... (emphasis added)
In Marshall v. Jerrico, Inc., 446 U.S. 238, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980), the Supreme Court recognized that the “requirement of neutrality in adjudicative proceedings” serves dual interests of equal importance, as “it preserves both the appearance and reality of fairness, ‘generating the feeling, so important to a popular government, that justice has been done,’ by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” Id. at 252, 100 S.Ct. at 1618 (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 128, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring)) (emphasis supplied). Thus, the neutrality requirement not only guarantees that each litigant receives a fair trial as determined by those learned in the law, but also engenders the faith in the integrity of this country’s tribunals that is so unquestionably vital to this government’s existence.
Anderson v. Sheppard, 856 F.2d 741, 745-46 (6th Cir.1988) (indenting and ellipses deleted; emphasis added). The judicial impartiality referenced in Anderson is of utmost importance, given that a judge must not only be impartial; he or she must, additionally, avoid all appearances of partiality. See id. at 746.
In voting to affirm, the majority hinges their reasoning, in part, on plaintiffs’ supposed failure to timely object to Judge Krupansky’s ex parte conduct. This is impermissible burden-shifting. When a judge violates the Canons or section 455, the burden remains on the judge, at all times, to disqualify him or herself when appropriate- — that burden never shifts to the parties. The majority also notes that Judge Krupansky invited the plaintiffs’ counsel to attend the meetings, but the majority fails to mention that such invitation was extended after undetermined meetings had transpired.
Irrespective of Judge Krupansky’s professed intent simply to oversee the school district’s receivership case, the extent of the meetings and number of people attending unfortunately raised serious questions about the integrity of the judicial process in this case. As such, these plaintiffs and the public, on an objective basis, could reasonably question his impartiality. Accordingly, I would reverse the district court’s denial of plaintiffs’ motion for recu-sal and remand the case for reassignment to another judge.
D. Attorneys’ Fees and Costs
Because the court’s disposition of the attorneys’ fees issue occurred in the midst of the recusal dispute, I would vacate the district court’s order and remand the issue for disposition by the judge to whom the case had been reassigned.
III. CONCLUSION
For the foregoing reasons, I respectfully DISSENT from the majority’s opinion.
. Following his assignment to preside over this case in 1994, Judge Krupansky stated:
[A]s I go back over the history of the remedial order and the Court's involvement in this case, there are certain images that surface. And from the very beginning, there has been displayed not only indifference on the part of the School Board, but active resistance an [sic] defiance of an all good faith effort to advance the remedial order. ... As a matter of fact, it got so bad at one time that Judge Baltisti sua sponte, as I recollect, initiated the Justice Department investigation, which ultimately ended up in a civil contempt citation. I recognize it was set aside for a lack of evidence, but it reflects a lack of cooperation, a lack of good faith in trying to advance the desegregation of schools....
JA at 1323 (Transcript of Proceedings 2/24/95, pp. 23-24) (emphasis added).
. In its original form, Vision 21 consisted of three major components: 1) Comprehensive Enhancements, which called for a strengthening of the educational foundation of Cleveland Public Schools; 2) Core Enhancements, which were designed lo address the fundamental injustice of racial segregation through programs designed specifically to ensure African-American students a quality education as measured by improved student outcomes over a period of Lime; and 3) Parental Choice, which called for the expansion of the magnet school program and community model schools. Parents would have the choice to send their children to either a community model school or a district-wide magnet program. The defendants claimed that in cases in which the community model schools were racially identifiable, parents had the option of sending their children to a more integrated school. Of course, the local defendants assured the court in its motion that such racially identifiable schools under Vision 21 would be limited in number. Vision 21 was scheduled to be implemented over a four-year period.
. The Consent Decree provided:
5.1 Prior to the opening of school each fall, no school may have a student or faculty composition during the life of this Agreement which varies by more than ± 15 percentage points from the district-wide averages for elementary, middle and high schools.
5.2 The sole exceptions to Section 5.1 are the variances existing during 1993-94 and agreed to for 1994-1995 and 1995-1996 *477school years, as provided in Section 6, and kindergarten classes and Lau sites, which shall be excluded from calculations.
6.3 In the 1996-1997 school year and thereafter until July 1, 2000, all schools shall comply with the requirements of Section 5.1.
Realizing that it would be difficult, though not impossible, for the district to bring out-of-balance schools in compliance with the ± 15% parameter, the plaintiffs agreed to a flexible timetable to allow the defendants to racially balance those schools.
.Six months after the entry of the Consent Decree, Judge Battisti passed away and Chief Judge Thomas D. Lambros assigned Senior Circuit Judge Robert B. Krupansky to preside over the case.
. The Consent Decree provided for the defendants to file a motion for declaration of unitary status on or after July 1, 1997. See Reed v. Rhodes, 869 F.Supp. 1265, 1273 (N.D.Ohio 1994).
. Also at this time, the district court sua sponte directed the Ohio State Board of Education to assume supervisory, operational, financial, and personnel management of the Cleveland School District, which was on the verge of financial collapse.
. The case was transferred to Chief Judge George W. White on March 1, 1996; however, Judge Krupansky issued the May 8, 1996 order.
. The district court stated that modification was permissible because enforcement of the Consent Decree without modification would be detrimental to the public. Nonetheless, the initial burden requires that the party requesting modification demonstrate a signifi*480cant change in circumstances. See Rufo, 502 U.S. at 384, 112 S.Ct. 748 (citing Duran v. Elrod, 760 F.2d 756, 759-61 (7th Cir.1985)). Thus, even if one could make the case that the Consent Decree is detrimental to the public, modification cannot be granted unless that detriment arises because of some significant change in either factual conditions or in the law. See Rufo, 502 U.S. at 384, 112 S.Ct. 748.
. The district court directed the establishment . of the OSMCR for the purpose of desegregation administration.
. The majority repeatedly refers to a statement by Dr. Gordon Foster to the effect that the Cleveland school system is the most desegregated majority black school system in the country. Even if that were true, such a conclusion does not ipso facto mandate nor support a finding that the school system is unitary, considering the standard for that determination is based on facts specific to the district and not on comparison to other school districts. If Cleveland has not eliminated the vestiges of its prior de jure segregated system, then regardless of whether, in the opinion of one person, it is more desegregated ' than other districts, unitary status should not be declared.
.It is disingenuous for the defendants to argue that Vision 21’s parental choice plan offers parents a number of choices in schools and that the predominantly black schools that now exist are the result of such choice. According to one parent of a black child in the Cleveland system, black parents do not have a true choice between sending their children to a one-race school or an integrated one. Rather, she testified, that parents’ choices were constrained by the fact that certain programs were only offered at one-race schools. JA at 1817-18. In order for there to be true choice, she argued, children should have a choice between an integrated school and a one-race school offering the same programs. Id. As it stands now, children who wanted to choose a particular program often had to choose between that program and attending school in an integrated setting because the Cleveland school district did not offer both.
. The district court justified the increase in the number of racially identifiable schools by stating that a school district is not required to annually readjust attendance zones to keep up with demographics. This may be true, see Pasadena Bd. of Educ. v. Spangler, 427 U.S. 424, 436, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976), but the lack of an obligation to readjust attendance zones is premised on a demographic source of racial imbalance, not a state source. See id.
. The number and regularity of ex parte meetings or details regarding these meetings is not set out in the record, which only states that the meetings began subsequent to March 3, 1995. Because plaintiffs were not informed of the meetings until June 1995, the ex parte contacts took place for at least three months.