dissenting.
I join in Judge John R. Gibson’s well-reasoned dissent concerning the lack of findings to support the interdistrict aspects of the remedy, the lack of findings to support *1333the requirement that the State provide funding for capital improvements in the physical plant of the City schools, and the singular inappropriateness in our Constitutional system of a federal court’s ordering state and local taxing authorities to impose specific tax increases. His opinion adequately reflects my disagreement with the decision of the Court in all three of those areas. I cannot agree, however, that the remaining intradistrict aspects of the remedy approved by the Court are justified by adequate findings, and for that reason I dissent separately.
The issue in this case is not whether quality education is a good thing, or whether it would be wise public policy for the State to dedicate more of its resources to the public schools. Instead, the issue is whether, on the present record, we have the Constitutional authority to compel the State to provide funding for the array of costly programs required by the settlement plan. I submit that we do not.
The costs of carrying out the plan that the Court today approves will be enormous. For the 1984-85 year alone, the State’s share of these costs is likely to exceed $49,000,000, with the City school board contributing additional funds of approximately $15,000,000. These costs, and particularly the State’s share, will increase very substantially in future years as the pace of implementation quickens. If these costs are necessary to remedy a Constitutional violation, then they must be borne by the responsible parties — and ultimately by the citizens of the State — no matter how financially painful compliance may be. But if these costs go beyond what is needed to right a Constitutional wrong, if in fact the plan includes programs and amenities that may be laudable from an educational standpoint but are not tailored to the incremental segregative effects that have been caused by the Constitutional violation, then the effect of the Court’s decision is to transfer, without any basis in law or the Constitution, funds from taxpayers or other competing programs (including other needy school districts) to the beneficiaries of this plan. Our problem as a reviewing court is that the record gives us no basis for an intelligent and principled determination of the critical question in this case: on which side of the line — Constitutional necessity or judicial excursion into policy-making and educational experimentation— do the various components of the plan approved by the district court fall?1
We do not have before us a desegregation plan fashioned by the district court after careful findings of fact of the kind required by the Supreme Court in Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 417, 420, 97 S.Ct. 2766, 2774, 2775, 53 L.Ed.2d 851 (1977). Rather, what we have before us is a desegregation plan fashioned by agreement of the City school board, the suburban school boards, and the plaintiffs. The State, which must bear the brunt of the costs, is not a party to the agreement. Over the objections of the State, the dis*1334trict court has adopted the agreement or plan, and it has done so without inquiring into the continuing effects of the Constitutional violation and the need for the various programs included in this plan to remedy those continuing effects.
In considering the proposed plan, the district court merely conducted a hearing to determine whether the proposed settlement plan “is fair, reasonable, and adequate for the resolution of the 12(c) interdistrict phase of this school desegregation case.” Liddell v. Bd. of Educ., 567 F.Supp. 1037, 1039 (E.D.Mo.1983) (emphasis added). Thus the district court’s inquiry was nothing more than the inquiry required under Rule 23(e), Fed.R.Civ.P., to determine whether a settlement of a class action should be approved. Moreover, the inquiry was focused on the interdistrict phase of the case, not the intradistrict phase. Finding the plan satisfactory in terms of the Rule 23 considerations set forth in Grunin v. Int’l House of Pancakes, 513 F.2d 114, 123 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975), and in Professor Moore’s discussion of Rule 23, 3B Moore’s Federal Practice 1123.80[4] at 23-521 through 23-524, and giving a few obligatory bows to the Constitution in language wholly conclusory, the district court approved the plan and ordered all signatories, as well as the State defendants, to comply with all its provisions. 567 F.Supp. at 1042, 1055.
The district court’s approach and its findings are totally inadequate to provide a Constitutional basis for its sweeping order and the only slightly less sweeping order that this Court today approves. The Constitutional violation that has been found against the City school board and the State2 would justify requiring them to create a unitary school system within the City school district, but it does not justify the judicially-compelled creation of a system that never would have existed even if de jure segregation never had been practiced in the City schools. As the Supreme Court has made clear, the remedy in a school desegregation case should restore the students in the affected school district “ ‘to the position they would have occupied in the absence of such conduct.’ ” Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977) (citation omitted) (Milliken II). Similarly, in Dayton, supra, the Supreme Court has made our duty — and the limits of our authority— plain. In that case the Court was dealing, as we are dealing here, with a situation where de jure segregation of the races in the schools ceased many years ago. If, said the Court, Constitutional violations are found, then
[T]he District Court in the first instance, subject to review by the Court of Appeals, must determine how much incremental segregative effect these violations had on the racial distribution of the Dayton school population as presently constituted, when that distribution is compared to what it would have been in the absence of such constitutional violations. The remedy must be designed to redress that difference, and only if there has been a systemwide impact may there be a systemwide remedy.
We realize that this is a difficult task, and that it is much easier for a reviewing court to fault ambiguous phrases such as ‘cumulative violation’ than it is for the finder of fact to make the complex factual determinations in the first instance. Nonetheless, that is what the Constitution and our cases call for, and that is what must be done in this ease.
Dayton, 433 U.S. at 420, 97 S.Ct. at 2775 (citation omitted).
In the case now before us, there has been no attempt to determine the incremental segregative effects of the Constitutional violation committed by the defendants or to compare the present City school population to what it would have been absent a *1335violation. There has been no tailoring of the order to redress only “that difference” referred to in Dayton or to restore students in the City schools “to the position they would have occupied in the absence of such conduct” as required by Müliken II.
The district court’s failure to conduct a Dayton -type inquiry and to make findings on incremental segregative effects has rendered it impossible for this Court properly to review the district court’s order. This failure has left us without any measuring stick by which we can assess the various components of the settlement plan. The opinion of the Court implicitly recognizes this difficulty when, in searching for some standard to guide its review of certain of the compensatory and remedial programs approved by the district court, the Court resorts to a school classification device— Class AAA status — developed by the State’s Department of Education as a means of rating schools, and approves programs necessary to permit the City schools to regain and retain their Class AAA status. Although the Court’s need to find a standard to which it can repair is understandable, I do not believe that the approach taken is sound. There has been no showing of any kind that in the absence of the defendants’ Constitutional violation the City schools would have maintained Class AAA status. Thousands of Missouri school children, over one-quarter of the total number, attend schools that lack Class AAA status. That fact alone, when coupled with the recent restoration of the City schools to Class AAA status, casts considerable doubt on the proposition that any educational problems that may exist within the City schools are of unusual severity or that they rise to a level of Constitutional concern. In any event, we cannot simply make assumptions about the continuing harms that have flowed from the violation; rather, these harms must be determined by the kind of fact-finding by the district court and review by this Court that Dayton mandates.
The process by which the settlement plan came into being underscores the need for careful fact-finding before imposing the plan and its burdensome costs upon the State. In the first place, it would be a most remarkable coincidence if a plan intended to settle the broad interdistrict claims in this case was at the same' time properly tailored to cure only the effects of the intradistrict violation. Moreover, it must be remembered that the negotiations leading to the plan largely excluded the State, at least during the critical latter stages when it had become apparent to the State that it could not agree to a plan of the scope and cost that the other parties were determined to achieve. The plan was expressly conditioned upon compulsory funding from the State, and all the participating school districts stood to reap substantial benefits. None of them had any real incentive to prevent the others from piling their plates high with programs and funds that would benefit their school systems. As might be expected, there is no indication that the parties to the negotiations made any attempt to measure the incremental segregative effects of the violation on which the plan rests or to remedy only those effects. Such negotiations are inherently unlikely to produce a remedy narrowly tailored to the Constitutional wrong and any present-day educational deficiencies resulting therefrom that fairly may be charged to the State and, through it, to citizens in all walks of life throughout the State. Thus the need for judicial alertness, and careful fact-finding, is especially critical in this case.3
*1336For the reasons stated above, I would reverse the judgment of the district court and remand the case to the district court for further proceedings consistent with this opinion. I would hope, of course, that the parties could resume their negotiations and achieve a settlement agreement to which all could assent.
ORDER
On February 8, 1984, this Court filed its opinion in the St. Louis school desegregation cases. We directed that our mandate be issued forthwith. Thereafter, the State of Missouri notified the St. Louis County schools that it would discontinue payments for transporting students between county schools on February 17, 1984. It sent a similar notice to the parents of children participating in such transfers. Subsequently, the county schools and the Caldwell plaintiffs moved this Court for an order directing the State to continue to pay for transporting the county-to-county transfer students for the balance of the 1983-84 school year. At oral argument, it became clear that fiscal incentives for sending and receiving school districts were intended to be included within the purview of the parties’ motions.
We consider the motions filed as motions to recall our mandate and to clarify or modify our opinion in the interests of justice. See Dilley v. Alexander, 627 F.2d 407, 410-411 (D.C.Cir.1980); Reserve Mining Co. v. Lord, 529 F.2d 181, 183 (8th Cir.1976); Reserve Life Ins. Co. v. Pitfield MacKay & Co., 528 F.2d 120, 123 (8th Cir.1976); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 275-279 (D.C. Cir.1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972).
In our view, it would be inequitable to disrupt the education of the 311 students affected. It has been the consistent view of this Court in school desegregation eases that we will avoid disruption during the school year whenever possible. See, e.g., Liddell v. Missouri, 717 F.2d 1180, 1182-1183 (8th Cir.1983) (en banc) (Liddell VI); Liddell v. Bd. of Educ., 667 F.2d 643, 654 (8th Cir.1981) (Liddell III), cert. denied, 454 U.S. 1081, 1091, 102 S.Ct. 634, 656, 70 L.Ed.2d 614, 629 (1982). Cf. Lemon v. Kurtzman, 411 U.S. 192, 194, 199-200, 93 S.Ct. 1463, 1466, 1468-1469, 36 L.Ed.2d 151 (1973); Missouri ex rel. Freeman v. Block, 690 F.2d. 139, 144-145 (8th Cir.1982) (equitable considerations important in remedial context).
We thus order the State to continue to fund county-to-county transfers for the balance of 'the current school year, including payments for transportation and fiscal incentives to sending and receiving school districts. At the end of the current school year, the State and the county school districts shall attempt in good faith to allocate the costs incurred by the State from February 21, 1984, to the end of the school year between the State and all county school districts that are signatories to the settlement agreement. If they fail, the district court shall, after an appropriate hearing, allocate the costs between the county school districts which signed the settlement agreement and the State in such propor*1337tions as it deems fair and equitable. If any party objects to this allocation, it may take an expedited appeal to this Court. We note that in determining the costs of transporting county students, only those costs that would not otherwise have been incurred by the State pursuant to this Court’s opinion should be included.
We have before us a motion to dissolve a temporary stay issued by Judge Theodore McMillian for lack of jurisdiction. This issue has been mooted by the present order.
We also have before us a request by the Kirkwood school district for clarification of our opinion. In response to that request, we note that the State is obligated to pay fiscal incentives to a county school district' which establishes a magnet school and receives black students from the City school district. Such State payments shall not, however, exceed the amount the county school district would receive if these transfer students were enrolled in the county’s regular school. We direct that future requests for clarification of this Court’s opinion should be taken initially to the district court.
The mandate previously issued is reconsidered and amended as indicated by this order. As amended, the mandate of this Court shall issue forthwith. To the extent not granted by this order, the petition for rehearing filed by the Parkway school district is denied.
. A few examples will serve to illustrate the problem. The plan approved by the Court includes millions of dollars for such things as pre-school centers, all-day kindergartens, schools of emphasis (which are in addition to the magnet schools), parental involvement, and Saturday classes. The magnet school component, as presently structured, will require over $22,000,000 during the plan’s first two years. During 1984-85 alone, the plan would provide $1,762,000 for an item designated “Coordination of Instruction" — whatever that may entail. It was not even mentioned, much less discussed or made the subject of fact-finding, during the hearing conducted by the district court, and the same is true of virtually all the plan’s specific items. Substantial funding is provided for "Curriculum Development," "Peer Tutoring,” "Shared Motivation," "Role model experiences," and "Strengthen the capabilities of the public affairs unit.” The capital improvements section of the plan purports to "ensure a learning environment which complements and supports the instructional program in a manner which optimizes the learning process.” While the professional educators who drafted the plan may be forgiven for writing that way, we should not be forgiven if we allow this plan to go into effect without first insisting that it be examined in the manner the Constitution requires. Because of the lack of appropriate inquiry and fact-finding below, there is now no jurisprudentially acceptable way for us to determine whether any of these items are needed to remedy the Constitutional violation.
. As Part I. of Judge John R. Gibson's separate opinion demonstrates, the exact nature of the Constitutional violation previously found in this case is not easily determined. I agree, however, with his conclusion that the violation found on the part of the City school board and the State is failure to take adequate steps to desegregate the schools throughout the City.
. The looseness, vagueness, and uncertainties of the plan were emphasized by one of the witnesses at the hearing before the district court:
In nearly every program budget [of the plan], one can point to some strange budget items, some budget items which are not consistent with the description, certainly not with the planning as is in the case of many programs and I would not approve it under any circumstances until all those points were clarified, until it was clear what was expected to happen as a result of the expenditure of money, and only then if one could conclude it would not interfere so extensively with the programs in the City that they would be rendered in poorer shape than they are.
*1336Testimony of Otis Baker, Coordinator of State and Federal Programs, Division of Instruction, State Department of Elementary and Secondary Education. Tr. of Fairness Hearing, p. 169. Another witness, an out-of-state "expert" presented by the proponents of the plan, acknowledged during cross-examination that to her knowledge there is not another urban school system in the United States that has all the components that are included within the quality education improvements contained in the settlement plan. Testimony of Carol Gibson, Director of Education, National Urban League. Tr. of Fairness Hearing, p. 1-195. One of the opponents’ witnesses made the following observation concerning the quality education improvements portion of the plan:
This whole section of the proposal looks to be an attempt by the Saint Louis school board to justify every expense they now have and every kind of expenses they can dream up for the future, as a part of the desegregation case. We well remember their earlier attempt to have general maintenance and painting needs become a part of the start-up expenses for implementing the 12(a) plan now in effect.
Testimony of Shannon K. Burnside, President, West County Association for Neighborhood Schools. Tr. of Fairness Hearing, p. 3-49, 50.