Cite as: 503 U. S. 467 (1992)
Scalia, J., concurring
Racially imbalanced schools are hence the product of a blend of public and private actions, and any assessment that they would not be segregated, or would not be as segregated, in the absence of a particular one of those factors is guesswork. It is similarly guesswork, of course, to say that they would be segregated, or would be as segregated, in the absence of one of those factors. Only in rare cases such as this one and Spangler, see 427 U. S., at 435-437, where the racial imbalance had been temporarily corrected after the abandonment of de jure segregation, can it be asserted with any degree of confidence that the past discrimination is no longer playing a proximate role. Thus, allocation of the burden of proof foreordains the result in almost all of the "vestige of past discrimination" cases. If, as is normally the case under our equal protection jurisprudence (and in the law generally), we require the plaintiffs to establish the asserted facts entitling them to relief—that the racial imbalance they wish corrected is at least in part the vestige of an old de jure system—the plaintiffs will almost always lose. Conversely, if we alter our normal approach and require the school authorities to establish the negative—that the imbalance is not attributable to their past discrimination—the plaintiffs will almost always win. See Penick, supra, at 471 (Stewart, J., concurring in result).
Since neither of these alternatives is entirely palatable, an observer unfamiliar with the history surrounding this issue might suggest that we avoid the problem by requiring only that the school authorities establish a regime in which parents are free to disregard neighborhood-school assignment, and to send their children (with transportation paid) to whichever school they choose. So long as there is free choice, he would say, there is no reason to require that the schools be made identical. The constitutional right is equal racial access to schools, not access to racially equal schools; whatever racial imbalances such a free-choice system might produce would be the product of private forces. We appar-
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