Scalia’s Concurrence

April 08, 1992 6 min read
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JUSTICE SCALIA, concurring....

Our decision will be of great assistance to the citizens of DeKalb County, who for the first time since 1969 will be able to run their own public schools, at least so far as student assignments are concerned. It will have little effect, however, upon the many other school districts throughout the country that are still being supervised by federal judges, since it turns upon the extraordinarily rare circumstance of a finding that no portion of the current racial imbalance is a remnant of prior de jure discrimination. While it is perfectly appropriate for the Court to decide this case on that narrow basis, we must resolve--if not today, then soon--what is to be done in the vast majority of other districts, where, though our cases continue to profess that judicial oversight of school operations is a temporary expedient, democratic processes remain suspended, with no prospect of restoration, 38 years after Brown v. Board of Education.

Almost a quarter-century ago, in Green v. School Bd., New Kent County, this Court held that school systems which had been enforcing de jure segregation at the time of Brown I had not merely an obligation to assign students and resources on a race-neutral basis but also an “affirmative duty’’ to “desegregate,’' that is, to achieve insofar as practicable racial balance in their schools. This holding has become such a part of our legal fabric that there is a tendency, reflected in the court of appeals opinion in this case, to speak as though the Constitution requires such racial balancing. Of course it does not: The equal-protection clause reaches only those racial imbalances shown to be intentionally caused by the state. As the Court reaffirms today, if “desegregation’’ (i.e., racial balancing) were properly to be ordered in the present case, it would be not because the extant racial imbalance in the [DeKalb County] public schools offends the Constitution, but rather because that imbalance is a “lingering effect’’ of the pre-1969 de jure segregation that offended the Constitution. For all our talk about “unitary status,’' “release from judicial supervision,’' and “affirmative duty to desegregate,’' the sole question in school-desegregation cases (absent an allegation that current policies are intentionally discriminatory) is one of remedies for past violations.

Identifying and undoing the effects of some violations of the law is easy. Where, for example, a tax is found to have been unconstitutionally imposed, calculating the funds derived from that tax (which must be refunded), and distinguishing them from the funds derived from other taxes (which may be retained), is a simple matter. That is not so with respect to the effects of unconstitutionally operating a legally segregated school system; they are uncommonly difficult to identify and to separate from the effects of other causes. But one would not know that from our instructions to the lower courts on this subject, which tend to be at a level of generality that assumes facile reduction to specifics. "[Desegregation] decrees,’' we have said, “exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.’' We have never sought to describe how one identifies a condition as the effluent of a violation, or how a “vestige’’ or a “remnant’’ of past discrimination is to be recognized. Indeed, we have not even betrayed an awareness that these tasks are considerably more difficult than calculating the amount of taxes unconstitutionally paid. It is time for us to abandon our studied disregard of that obvious truth, and to adjust our jurisprudence to its reality....

Racially imbalanced schools are ... the product of a blend of public and private actions, and any assessment that they would not be segregated, or would not be as segregated, in the absence of a particular one of those factors is guesswork.... Thus, allocation of the burden of proof foreordains the result in almost all of the “vestige of past discrimination’’ cases. If, as is normally the case under our equal-protection jurisprudence (and in the law generally), we require the plaintiffs to establish the asserted facts entitling them to relief--that the racial imbalance they wish corrected is at least in part the vestige of an old de jure system--the plaintiffs will almost always lose. Conversely, if we alter our normal approach and require the school authorities to establish the negative--that the imbalance is not attributable to their past discrimination--the plaintiffs will almost always win.

Since neither of these alternatives is entirely palatable, an observer unfamiliar with the history surrounding this issue might suggest that we avoid the problem by requiring only that the school authorities establish a regime in which parents are free to disregard neighborhood-school assignment, and to send their children (with transportation paid) to whichever school they choose. So long as there is free choice, he would say, there is no reason to require that the schools be made identical. The constitutional right is equal racial access to schools, not access to racially equal schools; whatever racial imbalances such a free-choice system might produce would be the product of private forces. We apparently envisioned no more than this in our initial post-Brown cases....

But we ultimately charted a different course with respect to public elementary and secondary schools. We concluded in Green that a “freedom of choice’’ plan was not necessarily sufficient, and later applied this conclusion to all jurisdictions with a history of intentional segregation.... Thus began judicial recognition of an “affirmative duty’’ to desegregate, achieved by allocating the burden of negating causality to the defendant. Our post-Green cases provide that, once state-enforced school segregation is shown to have existed in a jurisdiction in 1954, there arises a presumption, effectively irrebuttable (because the school district cannot prove the negative), that any current racial imbalance is the product of that violation, at least if the imbalance has continuously existed....

At some time, we must acknowledge that it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools. We are close to that time. While we must continue to prohibit, without qualification, all racial discrimination in the operation of public schools, and to afford remedies that eliminate not only the discrimination but its identified consequences, we should consider laying aside the extraordinary, and increasingly counterfactual, presumption of Green. We must soon revert to the ordinary principles of our law, of our democratic heritage, and of our educational tradition: that plaintiffs alleging equal-protection violations must prove intent and causation and not merely the existence of racial disparity; that public schooling, even in the South, should be controlled by locally elected authorities acting in conjunction with parents; and that it is “desirable’’ to permit pupils to attend “schools nearest their homes.’'

A version of this article appeared in the April 08, 1992 edition of Education Week as Scalia’s Concurrence


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