United States v. Fordice, 505 U.S. 717, 41 (1992)

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

Opinion of Scalia, J.

not "in absence of evidence of state action playing a part in the decision of which club an individual chose to join." The only thing we "satisfied ourselves" about in Bazemore was that the club members' choices were "wholly voluntary and unfettered," 478 U. S., at 407—which does not mean the State "play[ed] [no] part in the decision of which club an individual chose to join," however much the Court may mush the concepts together today. It is, on the face of things, entirely unbelievable that the previously established characteristics of the various all-white and all-black 4-H Clubs (where each of them met, for example) did not even play a part in young people's decisions of which club to join.

Bazemore's standard for dismantling a dual system ought to control here: discontinuation of discriminatory practices and adoption of a neutral admissions policy. To use Green nomenclature, modern racial imbalance remains a "vestige" of past segregative practices in Mississippi's universities, in that the previously mandated racial identification continues to affect where students choose to enroll—just as it surely affected which clubs students chose to join in Bazemore. We tolerated this vestigial effect in Bazemore, squarely rejecting the view that the State was obliged to correct "the racial segregation resulting from [its prior] practice[s]." 478 U. S., at 417 (Brennan, J., dissenting in part). And we declined to require the State, as the Court has today, to prove that no holdover practices of the de jure system, e. g., program offerings in the different clubs, played a role in the students' decisions of which clubs to join. If that analysis was correct six years ago in Bazemore, and I think it was, it must govern here as well. Like the club attendance in Bazemore (and unlike the school attendance in Green), attending college is voluntary, not a legal obligation, and which institution particular students attend is determined by their own choice, not by "school boards [who] customarily have the power to create school attendance areas and otherwise designate the school that particular students may attend." Baze-

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