166
Souter, J., dissenting
(describing a decline in all 68 of the KCMSD's school buildings in the past "10 to 15 years"). If they thus believed that the white schools would deteriorate they might then have taken steps to establish private white schools, starting a practice of local private education that has endured. Again, what sense does it make to say of this example that the cause of white private education was desegregation (not yet underway), rather than the segregation that led to it?
I do not claim that either of these possible explanations would ultimately turn out to be correct, for any such claim would head me down the same road the Court is taking, of resolving factual issues independently of the trial court without warning the respondents that the full evidentiary record bearing on the issue should be identified for us. My point is only that the Court is on shaky grounds when it assumes that prior segregation and later desegregation are separable in fact as causes of "white flight," that the flight can plausibly be said to result from desegregation alone, and that therefore as a matter of fact the "intradistrict" segregation violation lacked the relevant consequences outside the district required to justify the District Court's magnet concept. With the arguable plausibility of each of these assumptions seriously in question, it is simply rash to reverse the concurrent factual findings of the District Court and the Court of Appeals. All the judges who spoke to the issue below concluded that segregated schooling in the KCMSD contributed to the exodus of white students from the district. Among them were not only the judges most familiar with the record of this litigation, Judge Clark of the District Court and the three members of the Court of Appeals panel that has retained jurisdiction over the case, see supra, at 162-164, but also the five judges who dissented from the denial of rehearing en banc in the Court of Appeals (whose opinion the majority does not hesitate to rely on for other purposes):
"[By 1985], '[w]hite flight' to private schools and to the suburbs was rampant.
Page: Index Previous 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 NextLast modified: October 4, 2007