concurring.
I concur in the court’s opinion and write separately only to explain more completely my reasons for concluding that the rulings of the district court should be reversed.
This case demonstrates the difficulty of determining complex cases involving school desegregation, and the attendant issues of discriminatory intent, by summary judgment. Text writers have discussed the inapplicability of summary judgment in such cases.6 This is just such a case involving the question whether there was discriminatory intent on the part of three suburban school districts, which necessarily involves an analysis of the actions, practices, decisions, and policies of school boards and of those delegated to assist the boards in carrying out their responsibilities. This is not a case where a minimal record exists, since the record before the district court consisted of some 1,983 pages. Recent Su*422preme Court decisions amplifying the scope of summary judgment under Federal Rule of Civil Procedure 56 do not support the district court’s grant of a summary judgment in this case. Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), makes it plain that drawing legitimate inferences from the facts is a function for the fact-finder and:
[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Neither do we suggest that the trial courts should act other than with caution in granting summary judgment or that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.
Id. at 255, 106 S.Ct. at 2513 (citations omitted).
Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), also underscores the necessity for genuine issues of material fact to defeat summary judgment. As Matsushita demonstrates, the substantive law in an area can limit the range of permissible inferences that can be drawn from a set of facts. See id. at 587-88, 106 S.Ct. at 1356.
The Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), made the following statements that must guide this court in determining whether there is an issue for trial:
Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action — whether it “bears more heavily on one race than another,” Washington v. Davis, [426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976) ] — may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion [v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (I960)] or Yick Wo [v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) ], impact alone is not determinative, and the Court must look to other evidence.
The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes. The specific sequence of events leading up to the challenged decision also may shed some light on the decisionmaker’s purposes .... Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role. Substantive departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.
429 U.S. at 266-67, 97 S.Ct. at 564 (citations and footnotes omitted).
As the court’s opinion today points out, four years have passed, no plan has been adopted, and not one black student has been voluntarily transferred from KCMSD to a suburban school district.7 The record before the district court demonstrated that two of the districts, North Kansas City and Independence, had, over the last several years, declining enrollments which would indicate the availability of physical plant space. The record also reveals that in 1986 the Lee’s Summit Schools had a 1.4 percent black enrollment and the Independence Schools had a 1.8 percent black enrollment, while the North Kansas City Schools’ student body was: 1.7 percent black, 2.7 percent Hispanic, 1.2 percent Asian-Pacific, and .4 percent American Indian or Alaskan *423Native, for a total minority enrollment of 6 percent. (Jt.App. at 1163-65).8
The Naylor Class argues with some force that the district court’s analysis unduly focused upon whether the suburban school districts’ “nonresident policies had the foreseeable consequence” of preventing the plaintiff class from attending the suburban school districts based on their race, and failed to properly evaluate the practices of the suburban school districts in light of all the principles underscored in Arlington Heights. I am also convinced that the district court erred in viewing the actions of the suburban school districts as merely preliminary proposals which could not serve as the basis for a finding of invidious discrimination. The entire situation before us simply demonstrates that the suburban school districts and the State have failed to make any headway toward the development of voluntary interdistrict transfer plans, and that each utilizes the inaction of the other as an excuse for its refusal to act.
I am satisfied that a review of both the policies and practices of the individual suburban school districts demonstrates that there is a genuine issue of material fact concerning the question of discriminatory intent.
When Naylor Class members requested admission to the Independence School District, the district responded by stating that the children would be admitted only if: (1) the State agreed to build and turn over to the district a new elementary school; (2) the district was reimbursed for its expenses in the prior Jenkins litigation and indemnified against the cost of future litigation arising out of the transfer program; and (3) the Jenkins Class attorneys agreed to not represent the children with respect to the district. These conditions were all set forth in a July 22, 1988, letter to Dr. Terry Stewart, Coordinator for Administrative Services, of the State Department of Elementary and Secondary Education. (Jt. App. at 1143-45). Moreover, while the Independence School District had an official non-resident student policy authorizing admission of four categories of students, (Jt. App. at 1083), the district referred to only one of those categories, namely non-resident students whose parents owned real estate in Independence, in a letter to Dr. Stewart dated February 10, 1987, (Jt.App. at 1118-19). The evidence also disclosed that in the five school years between 1984 and 1989, the district had admitted 115 special education students, of whom 108 were white, three were black, and four were members of other minority groups. The district also admitted eight white students from the Drumm Farm, a residential institution for children. (Jt.App. at 1387). Those students were not within any of the categories described in the district’s nonresident policy. The Naylor Class asks why the district strictly adhered to its nonresident policy to reject the black children while at the same time violating its policies in order to accept the predominantly white special education children. That question raises the issue of whether the Independence district has departed from normal procedures and created special conditions for the Naylor Class such as those referred to in Arlington Heights. I am satisfied that these are issues that preclude summary judgment.
Lee’s Summit had maintained a policy allowing students not residing in Lee’s Summit “to attend the district’s schools upon payment of tuition as established by the Board.” (Jt.App. at 1088). On July 27, 1988, the district wrote Dr. Stewart to inform the State of the district’s decision to not accept the plaintiffs, because the State would not pay their tuition. (Jt.App. at 1151). When counsel for the Jenkins Class informed the district that the plaintiffs would fulfill reasonable tuition requirements that the district would determine, (Jt.App. at 1154-55), the district answered *424that the students were denied admission because they did not satisfy the district’s admission policy and practice, which focused on residency and property ownerships. (JtApp. at 991). Later, an affidavit from the former board president stated that the district’s policy was to accept nonresident students only to the extent required by law or to allow students to continue where the family had moved out of the district. Again, the district’s shifting rationale and its failure to follow its own expressed policy both implicate the principles in Arlington Heights and could create an inference of discriminatory motive.
The North Kansas City School District had a policy allowing the enrollment of non-residents in several specified categories.9 When the request was made for transfer by members of the Naylor Class, the district wrote to the State and to the parents of the black children stating that the children would be admitted only if: the district retained sole and final authority to accept or reject applicants; the students’ parents or guardians pledged to support the students’ educational activities and to be immediately available for consultation with school officials; certain school districts in the State of Kansas also agreed to accept KCMSD students; the State, KCMSD, and the plaintiff class provided full and unqualified indemnity to the district; KCMSD and the plaintiff class agreed to not pursue future litigation against the district; the district was fully reimbursed for all of the district’s fees, expenses, and costs from both the previous Jenkins litigation and its investigation of voluntary programs; and a set aside fund was placed under the district’s control for a five-year period to partially insure the required indemnities. (Jt.App. at 1130-38). I am convinced that these conditions, particularly the reimbursement of the earlier Jenkins litigation expenses, could raise an inference of discriminatory intent, because they are imposed against only one group of transfer students: the group of black students seeking admission.
As part of the response to the motion for summary judgment, the class filed affidavits from two Professors of Sociology, Dr. Robert L. Crane of Columbia University’s Teachers College, and Dr. Mary R. Jack-man of the University of Michigan, both claiming to be knowledgeable in the area of racial attitudes. Both of them analyzed the letter from the North Kansas City School District and expressed opinions in detail that the letter demonstrated racially discriminatory intent. These opinions are further support for the conclusion that factual issues were presented.
The record also reveals that North Kansas City School District had accepted nonresidents if it was able, and the student’s home district was unable, to meet the applicant’s educational needs and if tuition was paid by the home district. Those accepted were routinely white, coming from home districts that were nearly all white.
In view of our determination that we must remand the issues with respect to the three suburban school districts for further proceedings, and in view of our earlier orders requiring that the State take the lead in developing voluntary interdistrict transfer plans, I believe that we need say no more concerning the need for remand as to the State.
A few further words are in order concerning the refusal to transfer this case to Judge Clark, who has presided over the Jenkins litigation. Evidently when filed, the Naylor case was assigned to a different division under the procedures of the clerk’s office. Motions to transfer or consolidate were then denied. The order of the district court, however, in ruling on Naylor, made numerous references to Judge Clark’s participation in Jenkins. In that order, the court questioned whether the eleven criteria of the North Kansas City School District’s letter would qualify *425as an appropriate voluntary transfer plan under Judge Clark’s order in Jenkins. Naylor v. Lee’s Summit Reorg. School Dist. R-7, 703 F.Supp. 803, 816 n. 17 (W.D.Mo.1989).10 In considering the liability of the State, the district court referred to Judge Clark’s order and held that it did not have jurisdiction to decide whether the State had a duty to fund a voluntary inter-district plan, as these requirements stem from Judge Clark’s remedial order, and it was for him to make this determination. Id. at 818. The court also acknowledged Judge Clark’s role in formulating a voluntary plan as well as the right of the State to challenge its responsibility to finance tuition and transportation of students in such a plan, which it could not find to be evidence of discrimination against plaintiffs in the case before it. These references to the Jenkins litigation pending before Judge Clark and to the need for action by him in that case point to the interrelationship of the Naylor case with Jenkins and the desirability of determining all of the voluntary transfer issues in one court, that responsible for the Jenkins litigation.
Interestingly, the district court in Naylor pointed to the prematurity of the issues because the North Kansas City School District’s proposal was not yet a final plan. That proposal was predicated upon the State’s willingness to pay tuition for the transfer students. Lee’s Summit refused to accept transfer students because of the State’s refusal to pay tuition. The State argued successfully before Judge Clark that whether the State had to fund voluntary transfer plans was a moot question, because no plans existed. These circular rationalizations, with the suburban school districts refusing to adopt a plan because the State has not made funds available, and the State arguing that there is no voluntary plan for it to fund, make the remand to fashion a voluntary plan essential. It also underscores the desirability of a stay of further litigation in Naylor.
ORDER DENYING PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
The suggestion for rehearing en banc has been considered by the court and is denied by reason of the lack of majority of active judges voting to rehear the case en banc. Judges Bowman and Wollman dissent from the denial of the petition for rehearing en banc. The petition for rehearing is also denied. The panel opinion in that matter, which was consolidated with No. 89-1957, Kalima Jenkins, et al. v. The State of Missouri, et al., and filed April 2, 1990, is withdrawn. A substituted opinion in both matters is filed simultaneously with this order.
. Professors Wright, Miller, and Kane have stated that:
Cases premised on alleged violations of the constitutional or civil rights of plaintiffs frequently are unsuitable for summary judgment. As is true with cases involving important public issues, courts may refuse to grant summary judgment in these actions because it is felt that a fuller record is necessary in order to be able to decide properly the issues involved. Further, the very nature of the claims involved often presents factual issues that require summary judgment to be denied.
In many constitutional and civil rights cases, a necessary element of the claim for relief presents an inquiry into the state of mind of one or more of the parties.... [C]laims requiring a determination regarding intentions or motives are particularly unsuitable for summary adjudication....
Finally, in actions charging various forms of discrimination, in violation of the constitution or some statute, material fact issues may exist concerning whether the defendant intended or knowingly discriminated, thereby precluding summary judgment. Thus, for example, in cases alleging sexual or racial discrimination in employment or housing, an examination of motive and intent usually is involved, making the granting of summary judgment especially questionable.
10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2732.2, at 340-51 (2d ed. 1983) (footnotes omitted).
. Judge Ross' concurring opinion in Jenkins v. Missouri, 807 F.2d 657 (8th Cir.1986) [hereinafter Jenkins /], expressed the opinion that failure to organize and implement a voluntary in-terdistrict program would be a significant factor in determining discriminatory intent in future litigation. Id. at 687 (Ross, J., concurring).
. While not in the record before the district court, publicly available enrollment figures demonstrate that black enrollment has continued to increase in four non-party suburban school districts, Center, Grandview, Hickman Mills, and Raytown, the districts that we recognized had made steady increases in black enrollment in Jenkins I, 807 F.2d at 664 n. 9. Insofar as this may be material in this case, the district court on remand may make appropriate inquiry and findings.
. These included children enrolled in special education programs, children whose families had moved from the North Kansas City School District, orphaned children, children whose legal residence was found to exist in the district by a court, foreign and domestic exchange students, and children of a non-resident person paying a school tax in the district. (Jt.App. at 1115-17).
. The district court stated that several of the conditions in the North Kansas City School District’s proposal were perhaps in violation of the equal protection clause, and questioned whether they would pass constitutional muster standing on their own, but further concluded that the issue was not before it. Id. at 816.