104
O'Connor, J., concurring
we appropriately and necessarily consider in answering that question.
Beyond the plain words of the question presented, the State's opening brief placed respondents on notice of its argument; fully 25 of the State's 30 pages of discussion were devoted to desegregative attractiveness and suburban comparability. See Brief for Petitioners 19-45. Such focus should not come as a surprise. At every stage of this litigation, as the Court notes, ante, at 85-86, the State has questioned whether the salary increase order exceeded the nature and scope of the constitutional violation. In disposing of the argument, the lower courts explicitly relied on the need for desegregative attractiveness and suburban comparability. See, e. g., 13 F. 3d, 1170, 1172 (CA8 1993) ("The significant finding of the court with respect to the earlier funding order was that the salary increases were essential to comply with the court's desegregation orders, and that high quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD"); 11 F. 3d 755, 767 (CA8 1993) ("In addition to compensating the victims, the remedy in this case was also designed to reverse white flight by offering superior educational opportunities").
Given the State's persistence and the specificity of the lower court decisions, respondents would have ignored the State's arguments on white flight and desegregative attractiveness at their own peril. But they did not do so, and instead engaged those arguments on the merits. See Brief for Respondents KCMSD et al. 44-49; Brief for Respondents Jenkins et al. 41-49. Perhaps the response was not made as artfully and completely as the dissenting Justices would like, but it was made nevertheless; whatever the cause of respondents' supposed failure to appreciate "what was really at stake," post, at 139 (Souter, J., dissenting), it is certainly not lack of fair notice.
Given such notice, there is no unfairness to the Court resolving the issue. Unlike Bray v. Alexandria Women's
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