Cite as: 515 U. S. 70 (1995)
Souter, J., dissenting
quate notice to the parties is the virtual certainty that briefing and argument will not go to the real point. If respondents had had reason to suspect that the validity of applying the District Court's remedial concept of magnet schools in this case would be the focus of consideration by this Court, they presumably would have devoted significant attention to Gautreaux in their briefing. As things stand, the only references to the case in the parties' briefs were two mere passing mentions by the Jenkins respondents and a footnote by the State implying that Gautreaux was of little relevance here. The State's footnote says that "in Gautreaux, there was evidence of suburban discrimination and of the 'extra-city impact of [HUD's] intracity discrimination.' " Brief for Petitioners 28, n. 18. That statement, however, is flatly at odds with Justice Stewart's opinion for the Court: "the Court of Appeals surmised that either an interdistrict violation or an interdistrict segregative effect may have been present in this case. There is no support provided for either conclusion. . . . [I]t is apparent that the Court of Appeals was mistaken in supposing that the [record contains] evidence of suburban discrimination justifying metropolitan area relief. . . . [And the Court of Appeals's] unsupported speculation falls far short of the demonstration of a 'significant segregative effect in another district' discussed in the Milliken opinion." Gautreaux, 425 U. S., at 294-295, n. 11.8
8 Justice O'Connor thinks I place undue emphasis on the Gautreaux Court's footnote, turning it into an "island, entire of itself . . . ," ante, at 107, but it cannot be shrunk to the dimension necessary to support the majority's result. According to Justice O'Connor, Gautreaux holds that "territorial transgression" of any kind "is permissible only upon a showing that [an] intradistrict constitutional violation [has] produced significant interdistrict segregative effects. . . ." Ante, at 106. She finds Gautreaux significant only in reversing the Court of Appeals's finding that such effects had been established on the record of that case, and she understands that the Court remanded the case to the District Court with the understanding that it would order relief going beyond the city of Chicago's
173
Page: Index Previous 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 NextLast modified: October 4, 2007