The panel order acknowledges that demographic changes affected the DCSS after 1969. Id. at 1442. It relates (Id. at 1441) the current racial imbalance in the DCSS, which Amici submit was caused by demographic changes and not by the DCSS, which the district court has found has complied with its 1969 order in the area of student assignment. Nevertheless, the panel has issued the following far-reaching order:

... The DCSS must consider pairing and clustering of schools, drastic gerrymandering of school zones, and grade reorganization. See Swann, 402 U.S. at 27-28.... The DCSS and the district court must consider busing — regardless of whether the plaintiffs support such a proposal. The DCSS's neighborhood plan is not inviolable.... Id. at 1450.

By its very wording, the order concedes extensive support by students throughout the DCSS for a neighborhood system, and, by implication, opposition to “forced” busing. The trial court is ordered, without any provision for objecting students to be heard, to fashion a plan to reassign them beyond their neighborhood schools on a racial basis.

Swann, 402 U.S. at 28, states that “[a]bsent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis.” Demographic changes, and not DSCC (sic) actions, after 1969 caused what is at most de facto “segregation,” which is not a sufficient basis for the busing order.

The order to racially bus students is, therefore, of a legislative nature beyond the panel's authority. It also fails to provide for hearing the objections of students upon whom it now focuses. Thus, it is in violation of the separation of powers and