Cite as: 503 U. S. 467 (1992)
Scalia, J., concurring
Thus began judicial recognition of an "affirmative duty" to desegregate, id., at 15; Green, supra, at 437-438, achieved by allocating the burden of negating causality to the defendant. Our post-Green cases provide that, once state-enforced school segregation is shown to have existed in a jurisdiction in 1954, there arises a presumption, effectively irrebuttable (because the school district cannot prove the negative), that any current racial imbalance is the product of that violation, at least if the imbalance has continuously existed, see, e. g., Swann, supra, at 26; Keyes, 413 U. S., at 209-210.
In the context of elementary and secondary education, the presumption was extraordinary in law but not unreasonable in fact. "Presumptions normally arise when proof of one fact renders the existence of another fact 'so probable that it is sensible and timesaving to assume the truth of [the inferred] fact . . . until the adversary disproves it.' " NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 788-789 (1990), quoting E. Cleary, McCormick on Evidence § 343, p. 969 (3d ed. 1984). The extent and recency of the prior discrimination, and the improbability that young children (or their parents) would use "freedom of choice" plans to disrupt existing patterns "warrant[ed] a presumption [that] schools that are substantially disproportionate in their racial composition" were remnants of the de jure system. Swann, supra, at 26.
But granting the merits of this approach at the time of Green, it is now 25 years later. "From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination." Dowell, 498 U. S., at 247 (emphasis added). We envisioned it as temporary partly because "[n]o single tradition in public education is more deeply rooted than local control over the operation of schools," Milliken v. Bradley, 418 U. S. 717, 741 (1974) (Milliken I), and because no one's interest is furthered by subjecting the Nation's educational system to "judicial tutelage for the indefinite future," Dowell, supra, at 249; see also
505
Page: Index Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 NextLast modified: October 4, 2007