United States v. Fordice, 505 U.S. 717, 39 (1992)

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Cite as: 505 U. S. 717 (1992)

Opinion of Scalia, J.

identifiable schools—while still assuring each individual student the right to attend whatever school he wishes—do not have these consequences.

Our decisions immediately following Brown I also fail to sustain the Court's approach. They, too, suggest that former de jure States have one duty: to eliminate discriminatory obstacles to admission. Brown v. Board of Education, 349 U. S. 294 (1955) (Brown II), requires States "to achieve a system of determining admission to the public schools on a nonracial basis," id., at 300-301, as do other cases of that era, see, e. g., Cooper v. Aaron, 358 U. S. 1, 7 (1958); Goss v. Board of Ed. of Knoxville, 373 U. S. 683, 687 (1963).

Nor do Hawkins or Gilmore support what the Court has done. Hawkins involved a segregated graduate school, to be sure. But our one-paragraph per curiam opinion supports nothing more than what I have said: The duty to dismantle means the duty to establish nondiscriminatory admissions criteria. See 350 U. S., at 414 ("He is entitled to prompt admission under the rules and regulations applicable to other qualified candidates"). Establishment of neutral admissions standards, not the eradication of all "policies traceable to the de jure system . . . hav[ing] discriminatory effects," ante, at 729, is what Hawkins is about. Finally, Gilmore, quite simply, is inapposite. All that we did there was uphold an order enjoining a city from granting exclusive access to its parks and recreational facilities to segregated private schools and to groups affiliated with such schools. 417 U. S., at 569. Notably, in the one case that does bear proximately on today's decision, Bazemore, supra, we declined to apply Gilmore. See Bazemore, supra, at 408 (White, J., concurring) ("Our cases requiring parks and the like to be desegregated lend no support for requiring more than what has been done in this case").

If we are looking to precedent to guide us in the context of higher education, we need not go back 38 years to Brown I, read between the lines of Hawkins, or conjure authority

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