Cite as: 503 U. S. 467 (1992)
Scalia, J., concurring
Almost a quarter century ago, in Green v. School Bd. of New Kent County, 391 U. S. 430, 437-438 (1968), this Court held that school systems which had been enforcing de jure segregation at the time of Brown had not merely an obligation to assign students and resources on a race-neutral basis but also an "affirmative duty" to "desegregate," that is, to achieve insofar as practicable racial balance in their schools. This holding has become such a part of our legal fabric that there is a tendency, reflected in the Court of Appeals opinion in this case, to speak as though the Constitution requires such racial balancing. Of course it does not: The Equal Protection Clause reaches only those racial imbalances shown to be intentionally caused by the State. As the Court reaffirms today, if "desegregation" (i. e., racial balancing) were properly to be ordered in the present case, it would be not because the extant racial imbalance in the DeKalb County School System offends the Constitution, but rather because that imbalance is a "lingering effect" of the pre-1969 de jure segregation that offended the Constitution. For all our talk about "unitary status," "release from judicial supervision," and "affirmative duty to desegregate," the sole question in school desegregation cases (absent an allegation that current policies are intentionally discriminatory) is one of remedies for past violations.
Identifying and undoing the effects of some violations of the law is easy. Where, for example, a tax is found to have been unconstitutionally imposed, calculating the funds derived from that tax (which must be refunded), and distinguishing them from the funds derived from other taxes (which may be retained), is a simple matter. That is not so with respect to the effects of unconstitutionally operating a legally segregated school system; they are uncommonly difficult to identify and to separate from the effects of other causes. But one would not know that from our instructions to the lower courts on this subject, which tend to be at a level of generality that assumes facile reduction to specifics.
501
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007