The opinion
PARKER, Circuit Judge,
concurring:
I concur in the majority opinion because I agree that the preliminary injunction should be vacated. I also have no disagreement with the opinion’s view that this Circuit’s jurisprudeneej as enunciated in the two Andrew Jackson High School cases, permits a school board to employ racial classifications in programs designed to remedy de facto segregation. See Parent Ass’n of Andrew Jackson High Sch. v. Ambach, 598 F.2d 705 (2d Cir.1979); Parent Ass’n of Andrew Jackson High Sch. v. Ambach, 738 F.2d 574 (2d Cir.1984). At least at the inception of the program at issue in this case, the defendants may well have had a compelling interest to act to reduce racial isolation. I write specifically, however, to express my serious reservations about any potential remedy which might be available upon remand.
It is important to note that this program has been in existence for 35 years. The program’s goal, as acknowledged in the majority opinion, is reduction of racial isolation. Racial isolation exists when “a school or school district enrollment consists of a predominant number or percentage of students of a particular racial/ethnic group.” N.Y. Comp.Codes R. & Regs. tit. 8, § 175.24(a)(2) (1999). The statistics with which we have been supplied during this appeal suggest that in the 35 years- of its existence the minority pupil population *754 in Rochester City School District (“RCSD”) has increased from 25.6 percent to 80 percent. We have no historical data for the participating suburban Monroe County districts. However, as of the 1996-1997 school year, the percentage of white students in the participating suburban districts ranged from approximately 85 percent to 92 percent. The number of minority students who participated in the program in the 1998-1999 school year was approximately 580. The RCSD pupil enrollment is presently close to 36,000 students. If those statistics are accurate, it is extremely difficult to see how this program has had any meaningful impact upon the existence of schools or school districts with “a predominant number or percentage of students of a particular racial/ethnic group.”
Therefore, even though the defendants may have had a sufficiently compelling interest to justify the program at its inception, it is difficult to see how the interest continues, given the program’s limited impact. If a compelling interest no longer exists, it seems to me that the entire program may fail as being unconstitutional, and the plaintiffs would have no remedy. This aspect of the appeal is one which apparently was not explored by the court below because the plaintiffs made no facial challenge to the program as a whole. Given the very limited development of this issue in the record before us, I believe that a remand for further consideration is the appropriate disposition. I accordingly join with the majority opinion’s disposition.