dissenting.
I respectfully dissent from the denial of the suggestion for rehearing en banc of the panel opinion filed April 2,1990. The panel now has filed a modified opinion, supra p. 417, and has withdrawn the April 2, 1990 opinion.1 Unfortunately, the modified opinion is as flawed as its predecessor.
Even though the panel takes pains in the modified opinion to make it appear the suburban school districts are being given a choice in the matter, the reality is that the Court effectively is decreeing a massive compulsory interdistrict transfer plan, one that the suburban districts will be forced to accept and implement on pain of being found guilty by this Court of racial discrimination if they do not. The question before us is whether a so-called voluntary transfer plan can be anything but compulsory when this Court already has signalled, in unmistakable terms, that the suburban school districts’ refusal to accept large numbers of transfer students from the Kansas City School District pursuant to “a voluntary *426interdistrict program” will be “a very significant factor in determining discriminatory intent in the future litigation.” Jenkins v. Missouri, 807 F.2d 657, 687 (8th Cir.1986) (Ross, J., concurring) (Jenkins I), quoted with approval in the modified opinion of the panel majority, supra at 418 and Judge John R. Gibson’s concurring opinion, supra at p. 422 n. 7. The modified opinion of the panel majority, supra at 418 also quotes approvingly from footnote 30 of Jenkins I, which lauds the virtues of voluntary interdistrict transfer programs and concludes, ominously, that, “Whether a refusal of a district to participate in such a voluntary program may evidence discriminatory intent and thus be an independent basis for further relief and mandatory participation is an issue that we should not anticipate.” Jenkins, 807 F.2d at 683 n. 30.
The case thus takes on an Alice-in-Wonderland quality. On the one hand, the suburban districts, not having been found guilty of a constitutional violation (and therefore having been dismissed from the Jenkins case) cannot judicially be compelled to take part in an interdistrict remedy. On the other hand, our Court has made them an offer they can’t refuse: unless they start “voluntarily” admitting transfers from the Kansas City School District, they will be adjudged to be violating the Equal Protection Clause, and then will be subject to the full remedial powers of the federal courts. I think no more than this need be said to demonstrate the unmistakably coercive nature of the panel opinion.
An interdistrict transfer plan might or might not be a good thing. That is not the issue. The issue is the constitutional allocation of power, and whether our Court has been faithful to it. Clearly it has not. Instead, what we have here is a raw exercise of power in pursuit of what the Court perceives to be a noble purpose, namely, the dispersion of black students from the inner city into the mostly white suburban districts. This decision, if it is not overturned, will stand as a monument to the often tempting but always pernicious doctrine that arguably worthy ends justify illegitimate means. Moreover, it may have unintended practical consequences that will cause great harm to innocent school districts. When we tinker with local arrangements, we do so at great risk to the health of the body politic. Only when the Constitution commands it are we justified in intruding. Here, it cannot even be pretended that the Court’s coercive order has a constitutional basis.
I am also troubled by the implicit premise that appears to guide the panel opinion, that premise being that black children somehow will be better off if they are removed from classrooms where they enjoy majority status and are transported to more distant classrooms where they will comprise a distinct minority. If this be truth, it certainly is not of the self-evident variety. The premise seems especially hollow here in view of the vast sums of money that are being judicially compelled from unwilling taxpayers to make the Kansas City School District second to none in the opulence of its facilities and in the plenitude of its educational frills. In any event, the idea that a good education for black students requires their submersion in a sea of white students strikes me as being patronizing and demeaning to blacks. As far as I know, it is unsupported by any empirical evidence. I find it offensive.
My essential quarrel with the panel opinion, however, is that it goes further than any court has the right to go. The words of Justice Kennedy, dissenting in Missouri v. Jenkins, — U.S. —, 110 S.Ct. 1651, 109 L.Ed.2d 31 (1990), are apposite here:
James Madison observed: “Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit.” The Federalist, No. 51, p. 352 (J. Cooke ed. 1961). In pursuing the demand of justice for racial equality, I fear that the Court today loses sight of other basic political liberties guaranteed by our constitutional system, liberties that can coexist with a proper exercise of judicial remedial powers adequate to correct constitutional violations.
*427For the reasons I have briefly stated, I would grant the petition for rehearing en banc on all the issues raised by the petition. As I read the petition, it asks us to rehear, inter alia, the issue whether the District Court properly granted summary judgment in favor of the suburban districts on the discrete claim of discrimination that is the gravamen of the Naylor appellants’ complaint. I here express no opinion on the merits of that issue. I observe, however, that even if the Naylor appellants were ultimately to prevail on their discrimination claim, the sweeping relief that our Court has ordered would not be justified. When a state (or one or more of its subdivisions) is found to have violated the Constitution, the remedy should be precisely tailored to right the constitutional wrong, and should intrude no more than necessary upon state and local prerogatives. See Milliken v. Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). Here, our Court flouts that salutary teaching by effectively ordering (while pretending not to do so) a blunderbuss remedy that goes light years beyond anything that would be necessary to correct the constitutional violation alleged in the Naylor appellants’ complaint — and it does so despite the District Court’s grant of summary judgment for the suburban districts and despite the panel majority’s concession that “a material factual dispute remains respecting the suburban school districts’ racial motivation in refusing to accept black transfer students from the KCMSD.” Naylor v. Lee’s Summit Reorganized School Dist., No. 89-2452, Op. at 8 (8th Cir. May 23, 1990).
Our Court has acted with the best of intentions. Good intentions, however, are not an adequate substitute for constitutional authority, which here is sorely lacking. Nor do good intentions excuse judicial abuse of the Court’s de facto ability to bully litigants into submission not to the law but to the Court’s will. The illegitimacy of what the panel has done is so painfully obvious that I find it difficult to believe a majority of the judges of this Court would not feel duty-bound to grant the petition for rehearing en banc.
. The modified panel opinion 904 F.2d 415, is being filed simultaneously with this order denying rehearing en banc.