Freeman v. Pitts, 503 U.S. 467, 40 (1992)

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506

FREEMAN v. PITTS

Scalia, J., concurring

Dayton Bd. of Education v. Brinkman, 433 U. S. 406, 410 (1977); Spangler v. Pasadena City Bd. of Education, 611 F. 2d 1239, 1245, n. 5 (CA9 1979) (Kennedy, J., concurring). But we also envisioned it as temporary, I think, because the rational basis for the extraordinary presumption of causation simply must dissipate as the de jure system and the school boards who produced it recede further into the past. Since a multitude of private factors has shaped school systems in the years after abandonment of de jure segregation—normal migration, population growth (as in this case), "white flight" from the inner cities, increases in the costs of new facilities— the percentage of the current makeup of school systems attributable to the prior, government-enforced discrimination has diminished with each passing year, to the point where it cannot realistically be assumed to be a significant factor.

At some time, we must acknowledge that it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools. We are close to that time. While we must continue to prohibit, without qualification, all racial discrimination in the operation of public schools, and to afford remedies that eliminate not only the discrimination but its identified consequences, we should consider laying aside the extraordinary, and increasingly counterfactual, presumption of Green. We must soon revert to the ordinary principles of our law, of our democratic heritage, and of our educational tradition: that plaintiffs alleging equal protection violations must prove intent and causation and not merely the existence of racial disparity, see Baze-more, supra, at 407-409 (White, J., concurring); Washington v. Davis, 426 U. S. 229, 245 (1976); that public schooling, even in the South, should be controlled by locally elected authorities acting in conjunction with parents, see, e. g., Dowell, supra, at 248; Dayton, supra, at 410; Milliken I, supra, at

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