1. Marvin J. Sonosky Chair in Law and Public Policy, University of Minnesota Law School; Executive Director, Institute on Race and Poverty. I appreciate the research assistance of Mark Girouard and Colleen Walbran. 
   
2. See STEPHANIE M. WILDMAN ET AL., PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES AMERICA (1996). See also Ruth Frankenberg, Whiteness and Americanness: Examining Constructions of Race, Culture, and Nation in White Women's Life Narratives, in RACE 62 (Steven Gregory & Roger Sanjek eds., 1994).
   
3. See John O. Calmore, Racialized Space and the Culture of Segregation: "Hewing a Stone of Hope from a Mountain of Despair", 143 U. PA. L. REV. 1233 (1995); Kimberle Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988); RICHARD DELGADO, THE RODRIGO CHRONICLES: CONVERSATIONS ABOUT AMERICA AND RACE (1995); Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 BERKELEY WOMEN'S L.J. 16 (1995); DAVID ROEDIGER, TOWARDS THE ABOLITION OF WHITENESS (1994).
   
4. See Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women's Studies, Working Paper No. 189, Wellsley College Center for Research on Women (1988), in POWER, PRIVILEGE AND LAW (Leslie Bender & Daan Braveman eds., 1995).
   
5. See IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE (1990).
   
6. See GENEVIEVE LLOYD, THE MAN OF REASON: "MALE" AND "FEMALE" IN WESTERN PHILOSOPHY (1984).
   WILDMAN ET AL., supra note 1, at 29.
   
7. See, e.g., Ferdinand de Saussure, Course in General Linguistics, in CRITICAL THEORY SINCE PLATO (Hazard Adams ed., rev. ed. 1992) 718-726.
   
8. See Margalynne Armstrong, Privilege in Residential Housing, in PRIVILEGE REVEALED, supra note 1, at 52.
9. See, e.g., Jacques Derrida, Structure, Sign, and Play in the Discourse of the Human Sciences, in CRITICAL THEORY SINCE PLATO, supra note 7, at 1117-1126.
   
10. See RAYMOND WILLIAMS, KEYWORDS: A VOCABULARY OF CULTURE AND SOCIETY 324 (rev. ed. 1983).
    WILDMAN ET AL., supra note 1, at 14.
    
11. See id. at 27.
12. See id. at 26-27.
    
13. See id. at 31-32.
    
14. Armstrong, supra note 8, at 59.
    
15. WILDMAN, supra note 1, at 13.
    
16. The concept of White innocence has been discussed by a number of scholars. See, e.g., Kathleen M. Sullivan, The Supreme Court¾Comment, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78 (1986).
    
17. See Thomas Ross, Innocence and Affirmative Action, 43 VAND. L. REV. 297 (1990).
    
18. See id.
    
19. See id. at 311.
    
20. Id. at 313.
    
21. See id. at 315.
    The insinuation of the rhetoric of innocence into contemporary jurisprudence is addressed more fully, infra Part III. [KS: Please double check that you think this should refer to Part III- thanks.]
    
22. See McIntosh, supra note 3, at 27.
    
23. Id.
    
24. See id.
    
25. Id. at 31.
26. 
    Martha Minow, Making All the Difference, in POWER, PRIVILEGE AND LAW, supra note 3, at 93.
    
27. See infra Part III.D. [KS: Please double check- should this refer to part III.D.?]
    
28. See LLOYD, supra note 5, at 101.
    
29. See Minow, supra note 28, at 93.
    
30. See Martha Minow, Partial Justice and Minorities, in POWER, PRIVILEGE AND LAW, supra note 3, at 16, 17.
    
31. Rebecca Aanerud, Fictions of Whiteness: Speaking the Names of Whiteness in U.S. Literature, in DISPLACING WHITENESS: ESSAYS IN SOCIAL AND CULTURAL CRITICISM 42, 43 (Ruth Frankenberg ed., 1997).
    
32. See id. at 56-57.
    
33. See id.
    
34. Ruth Frankenberg, Introduction: Local Whitenesses, Localizing Whiteness, in DISPLACING WHITENESS, supra note 33 at 15-16.
    
35. WILDMAN ET AL., supra note 1, at 24.
36. See LLOYD, supra note 5, at 102.
    
37. See generally THEODORE W. ALLEN, THE INVENTION OF THE WHITE RACE, VOLUME ONE: RACIAL OPPRESSION AND SOCIAL CONTROL (1994); YOUNG, supra note 4.
    
38. For a good critique of this position, see generally Marilyn Frye, Oppression, in POWER, PRIVILEGE AND LAW, supra note 3, at 60.
    
39. See, e.g., DANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW (1997); See, e.g., John O. Calmore, Random Notes of an Integration Warrior¾Part 2: A Critical Response to the Hegemonic "Truth" of Daniel Farber and Suzanna Sherry, 83 MINN. L. REV. 1589 (1999).
    
40. The height of the claim for the objective universal function of reason was epitomized by such philosophers as Kant and Descartes. See generally IMMANUEL KANT, CRITIQUE OF PURE REASON (Paul Guyer & Allen W. Wood trans. & ed., 1998); RENE DESCARTES, DISCOURSE ON METHOD: AND, THE MEDITATIONS (F. E. Sutcliffe trans., 1968)[KS: There should be an accent from lower left to upper right above the "E" in Rene. But, almost immediately, these claims were challenged by philosophers like Hegel. See generally GEORG W.F. HEGEL, REASON IN HISTORY: A GENERAL INTRODUCTION TO THE PHILOSOPHY OF HISTORY (Robert S. Hartman trans., 1953).
    
41. WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES TOWARD THE NEGRO 1550-1812 (1968).
    
42. See id.
    
43. See id.; see also KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE CONSTITUTION (1989).
    
44. See, e.g., YOUNG, supra note 4; CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987); MARTHA MINOW, NOT ONLY FOR MYSELF: IDENTITY, POLITICS, AND THE LAW (1997); Frye, supra note 40.
    
45. See YOUNG, supra note 4; see also Minow, supra note 32.
    
46. See generally john a. powell, The "Racing" of American Society: Race Functioning as a Verb Before Signifying a Noun, 15 LAW & INEQ. J. 99 (1997).
    
47. See john a. powell, "Is Racial Integration Essential to Achieving Quality Education for Low-Income Minority Students, In the Short Term? In the Long Term?", 5 POVERTY & RACE 7 (September/October 1996).
    
48. See generally CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE, POVERTY, AND THE UNDERCLASS (1992).
    
49. This argument will be very familiar to those who claim that Affirmative Action is both unfair and illegal. See, e.g., FARBER & SHERRY, supra note 41.
    
50. See Joan Williams, Dissolving the Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism in Feminist and Critical Race Theory, in POWER, PRIVILEGE AND LAW, supra note 3, at 488.
    
51. See ALLEN, supra note 39, at 35.
    
52. See john a. powell, Talking Race, 31 HUNGRY MIND REV. 15 (1994).
    
53. DAVID THEO GOLDBERG, RACIST CULTURE: PHILOSOPHY AND THE POLITICS OF MEANING (1993).
    
54. See id.
    
55. See Robin West, Jurisprudence & Gender, 55 U. CHI. L. REV. 1 (1988).
    
56. See Gary Peller, Race Consciousness, 1990 DUKE L. J. 758, 761-62 (1990).
    
57. See Signithia Fordham & John U. Ogbu, Black Students' School Success: Coping with the "Burden of 'Acting White'", 18 URB. REV. 176, 177 (1986).
    
58. See Lisa Duggan, Making It Perfectly Queer, 22 SOCIALIST REV. 11 (1992), reprinted in SEX WARS 155 (Lisa Duggan & Nan D. Hunter eds., 1995).
    
59. See Michael Omi, Racial Identity and the State: The Dilemmas of Classification, 15 LAW & INEQ. J. 7 (1997).
    
60. See powell, supra note 48.
    
61. Marshall insisted on calling himself and other Blacks "Negro" for some time, challenging the appropriateness of the terms "Black" and "African American." See Peter Linzer, White Liberal Looks at Racist Speech, 65 ST. JOHN'S L. REV. 187, 214 n.121 (1991).
    
62. The anti-assimilation position was and still is often confused with an anti-integrationist movement. In much of the popular debate, these terms are used interchangeably. But true integration is not the same as assimilation. See john powell, Segregation and Educational Inadequacy in Twin Cities Public Schools, 17 HAMLINE J. PUB. L. & POL'Y 337, 353-54 (1996). One can also think of assimilation from either a transformative perspective or from more narrow perspectives. See YOUNG, supra note 4. The confusion of these terms has made the discourse on these issues more torrent than needed.
    
63. Of course, the universality and normalcy of Whiteness was never complete. If it were, there would be no counter story or challenge to the dominant discourse. At times, society has enforced the material and cultural logic of this dominant story by brute force and threats. See, e.g., Crenshaw, supra note 2.
    
64. See Ross, supra note 18.
    
65. See, e.g., Regents of University of California v. Bakke, 438 U.S. 265 (1978).
    
66. See the language to this effect in Hopwood v. Texas, 861 F. Supp. 551 (1994), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
    
67. See Crenshaw, supra note 2.
    
68. See JENCKS, supra note 48; JUDY H. KATZ, WHITE AWARENESS: HANDBOOK FOR ANTI-RACISM TRAINING (1978).
    
69. See john a. powell, The Colorblind Multiracial Dilemma: Racial Categories Reconsidered, 31 U.S.F. L. REV. 789 (1997).
    
70. See generally TONI MORRISON, PLAYING IN THE DARK (1992).
    
71. For a counter-story about the Jews making it without help, see Karen Brodkin Sacks, How Did Jews Become White Folks?, in RACE 78 (Steven Gregory & Roger Sanjeck eds., 1994).
    
72. Notice that I am not calling for a rejection or an embracing of what is considered the norm. It is not so easy to understand what our relationship to these norms should be.
    
73. See YOUNG, supra note 4; LLOYD, supra note 5.
    
74. Iris Young recognizes the distributive approach as the one most heavily relied upon by justice theorists, and she is explicitly critical of this approach. See YOUNG, supra note 4.
    
75. Id.
    
76. LLOYD, supra note 5.
    
77. YOUNG, supra note 4, at 159. Because racism and other forms of exclusion and subordination reflect a set of practices, they change. See powell, supra note 48; Omi, supra note 61; WILLIAMS, supra note 10; Crenshaw, supra note 2; and GOLDBERG, supra note 53. This also means that the strategies to challenge these practices must also change. See Crenshaw, supra note 2; GOLDBERG, supra note 55.
    
78. See YOUNG, supra note 4, at 165.
    
79. Id.
    ·
80. See id. at 166.
    
81. See id.
    
82. See id. at 167-68.
    
83. See id. at 166.
    
84. Id. at 163.
    
85. Id. at 169 (citations omitted).
    
86. Id. at 170.
    
87. Daniel R. Ortiz, Categorical Community, 51 STAN. L. REV. 769, 796 (1999) (emphasis added).
    ·
88. See id. at 802.
    
89. Id. at 797.
    
90. See id. at 799.
    
91. See id. (citing CATHARINE A. MACKINNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987)).
    
92. See id. at 800.
    
93. See id. (citing Mary Anne C. Case, Disaggregating Gender from Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 YALE L.J. 1, 102 n.359 (1995)).
    
94. Id. at 801.
    
95. Id. at 803.
    
96. See, e.g., Berta Esperanza Hernandez-Truyol, Borders (En)gendered: Normativities, Latinas, and a LatCrit Paradigm, 72 N.Y.U. L. REV. 882 (1997).
    
97. Ortiz, supra note 89, at 804.
    
98. Id.
    
99. Id. at 805 (citing Judith Butler, Critically Queer, in BODIES THAT MATTER: ON THE DISCURSIVE LIMITS OF "SEX" 223, 225 (1993).
    
100. Unfortunately, this type of serial integration overlooks how people actually find themselves. Identity is complex but not in this protean way. Most of us do not shift dynamically from one simple totalizing description to another. More of us assume instead one complex identity for a period of time. This complex identity is dynamic, of course, because the many different communities a person may inhabit at any one time exert constantly changing claims over his identity.
     
101. Id. at 805 n.206.
     
102. Id. at 806.
     
103. YOUNG, supra note 4, at 171 (citations omitted).
     
104. The discussion about Whites giving up White privilege often suffers from this limitation. See McIntosh, supra note 3; see also JANE LAZARRE, BEYOND THE WHITENESS OF WHITENESS: MEMOIR OF A WHITE MOTHER OF BLACK SONS (1996).
     
105. See Ross, supra note 18. While most of the Court's language on affirmative action reflects this, the Court has recognized that one of the purposes of affirmative action is undoing the effects of White Supremacy. See Johnson v. Transportation Agency, Santa Clara County, Cal., 480 U.S. 616 (1987).
     
106. See YOUNG, supra note 4.
     
107. In discussing the Black Power Movement and Feminist separatism, Iris Young's suggestion that these groups might be embracing separatism as a way to gain inclusion in society is questionable. See id. at 159-62.
     
108. See e.g., Frye, supra note 40 and MACKINNON, supra note 46.
     
109. See LLOYD, supra note 5.
     
110. See id.
     
111. See id.
     
112. See id.
     
113. See id.
     
114. See id. at 96-97.
     
115. See id. at 97-98.
     
116. See id. at 100-01.
     
117. See id.
     
118. See GOLDBERG, supra note 55.
     
119. See LLOYD, supra note 5, at 102-04.
     
120. Id. at 104-05.
     
121. Id. at 106.
     
122. See, e.g., Omi, supra note 61; GOLDBERG, supra note 55; ALLEN, supra note 39.
     
123. Toni Morrison makes the observation that we have not focused on the scarring consequence to Whites of living in a society with slavery and White supremacy. See MORRISON, supra note 72. Whites are often willing to concede that slavery and racism have marked Blacks, but assume they have remained largely untouched.
     
124. LLOYD, supra note 5, at 106.
     
125. Id. at 109.
     
126. Id. at 109. Unfortunately, frequently the challenge to Reason and other false claims of universal norms by groups excluded by these norms is an assertion of the objectivity of such norms that define the exclusion as justified. See generally, FARBER & SHERRY, supra note 41.
     
127. See YOUNG, supra note 4.
     
128. See john a. powell, Worlds Apart: Reconciling Freedom of Speech and Equality, 85 KY. L. J. 9, 93 (1996-97) (citing ROBERTO MANGABEIRA UNGER, KNOWLEDGE AND POWER (1975)).
     
129. See id.
     
130. See JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION (Thomas McCarthy trans., Beacon Press 3rd ed. 1985) (1981).
     
131. Ross, supra note 18, at 300-01.
     
132. Stephanie M. Wildman & Adrienne D. Davis, Making Systems of Privilege Visible, in PRIVILEGE REVEALED, supra note 1, at 7, 8.
     
133. Id.
     
134. See Ross, supra note 18, at 301.
     
135. 476 U.S. 267 (1986).
     
136. Id. at 276.
     
137. Ross, supra note 18, at 304.
     
138. See Plessy v. Ferguson, 163 U.S. 537, 544-51 (1896).
     
139. See McCleskey v. Kemp, 481 U.S. 279, 316-17 (1987).
     
140. 438 U.S. 265 (1978).
     
141. Id. at 407 (Blackmun, J., dissenting).
     
142. See Cedric Merlin Powell, Blinded by Color: The New Equal Protection, the Second Deconstruction, and Affirmative Inaction, 51 U. MIAMI L. REV. 191 (1997).
     
143. Id. at 200.
     
144. John E. Morrison, Colorblindness, Individuality, and Merit: An Analysis of the Rhetoric Against Affirmative Action, 79 IOWA L. REV. 313, 324 (1994).
     
145. Professor Morrison lists the following:
     
146. [1] Affirmative action is not colorblind, because it intentionally invokes racial classifications; [2] Affirmative action is not based on individuals, but on groups; [3] Affirmative action is not based on merit; [4] Affirmative action leads to racial politics and backlash in the form of white extremists; [5] Affirmative action is exploited by middle?class African?Americans; [6] Affirmative action stigmatizes its intended "beneficiaries"; [7] Affirmative action is social engineering, demanding equal results rather than equal opportunity; and [8] Affirmative action victimizes innocent (white) workers.
     
147. Id. at 314.
     
148. Id. at 338.
     
149. 438 U.S. 265, 294 n.34 (1978).
     
150. See Erin E. Byrnes, Note, Unmasking White Privilege to Expose the Fallacy of White Innocence: Using a Theory of Moral Correlativity to Make the Case for Affirmative Action Programs in Education, 41 ARIZ. L. REV. 535 (1999).
     
151. Bakke, 438 U.S. at 294 n.34.
     
152. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 270-76 (1986).
     
153. 488 U.S. 469 (1989).
     
154. Id. at 516 (Stevens, J., concurring).
     
155. Ross, supra note 18, at 306.
     
156. See City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 526-28 (Scalia, J., concurring).
     
157. Id. at 527.
     
158. 515 U.S. 200 (1995).
     
159. See id. at 205.
     
160. Id. at 229-30.
     
161. See id. at 235-37.
     
162. 448 U.S. 448 (1980).
     
163. Id. at 484. Justice Burger also stressed the "relatively light" burden that would be placed on nonminority contractors by this limited and flexible set-aside. Id.
     
164. 430 U.S. 144 (1977).
165. Id. at 174 (Brennan, J., concurring).
     
166. Id. at 177-78 (Brennan, J., concurring) (footnote omitted).
     
167. 480 U.S. 149 (1987).
     
168. Id. at 182.
     
169. Id. at 183.
     
170. See Adarand, 515 U.S. at 270 (Souter, J., dissenting).
     
171. Id. (Souter, J., dissenting).
     
172. Id. (Souter, J., dissenting).
     
173. See id. (Souter, J. dissenting). The "temporary nature of this [race?based] remedy ensures that a race?conscious program will not last longer than the discriminatory effects it is designed to eliminate." Id. (Souter, J., dissenting) (quoting Fullilove v. Klutznick, 448 U.S. 448, 513 (1980) (Powell, J., concurring)).
     
174. See, e.g., Michael L. Manuel, Adarand Constructors, Inc. v. Pena: Is Strict Scrutiny Fatal in Fact for Governmental Affirmative Action Programs?, 31 NEW ENG. L. REV. 975 (1997); Michel Rosenfeld, Decoding Richmond: Affirmative Action and the Elusive Meaning of Constitutional Equality, 87 MICH. L. REV. 1729, 1789-90 (1989) (discussing the distinguishing features between exclusionary and inclusionary uses of race, and how they pertain to the Equal Protection Clause).
     
175. Rosenfeld, supra note 173, at 1789-90. Justice Brennan in his Bakke concurrence noted that the rejection of Bakke from medical school would not "affect him throughout his life in the same way as the segregation of the Negro school children in Brown I would have [been affected]." Regents of the University of Cal. v. Bakke, 438 U.S. 265, 375 (1978) (Brennan, J., concurring).
     
176. Rosenfeld, supra note 173, at 1790.
     
177. Id. (footnote omitted).
     
178. See Byrnes, supra note 149, at 558.
     
179. Id.
     
180. Id. (quoting Peggy McIntosh, White Privilege: Unpacking the Invisible Knapsack, 1990 INDEP. SCH. 31, 31-33 (1990)).
     
181. 481 U.S. 279 (1987).
     
182. See id. at 286.
     
183. 426 U.S. 229, 239 (1976).
     
184. Tanya Kateri Hernandez, "Multiracial" Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 MD. L. REV. 97, 142 n.229 (1998). [KS: There should be accent from lower left to upper right above the "I" in her first name and above the "a" in her last name.]
     
185. See McCleskey, 481 U.S. at 279, 283.
     
186. See id. at 286.
     
187. See id.
     
188. See id.
     
189. See id. at 292-93 (citing Whitus v. Georgia, 385 U.S. 545, 550 (1967) and Wayte v. United States, 470 U.S. 598, 608 (1985)).
     
190. See LESLIE BENDER & DAAN BRAVEMAN, POWER, PRIVILEGE AND LAW, supra note 3, at 138-41.
     
191. See Wildman & Davis, supra note 133, at 8.
     
192. "My schooling gave me no training in seeing myself as an oppressor, as an unfairly advantaged person, or as a participant in a damaged culture. I was taught to see myself as an individual whose moral state depended on her individual moral will." McIntosh, supra note 3, at 24.
     
193. McCleskey, 481 U.S. at 298 n.20.
     
194. See id. at 298.
     
195. Id. at 344 (Brennan, J. dissenting).
     
196. See McCleskey, 481 U.S. at 290.
     
197. Id.
     
198. See id. at 287. As Justice Brennan noted in his dissent, the Court's Title VII jurisprudence did not require multiple regression analysis to account for every conceivable variable, as long as it accounted for the major factors that are likely to influence decisions. See id. at 327-28 (Brennan, J., dissenting). In fact, in response to criticisms and suggestions by the district court, Professor Baldus conducted additional regression analysis, "all of which confirmed, and some of which even strengthened, the study's original conclusions." Id. at 328 (Brennan, J., dissenting).
     
199. See id. at 287. The study found that prosecutors sought the death penalty in 70% of cases involving Black defendants and White victims, but in only 32% of cases involving White defendants and White victims; 15% of cases involving Black defendants and Black victims; and 19% of cases involving White defendants and Black victims. See id. Furthermore, cases involving Black defendants and White victims were more likely to result in a death sentence than any other racial combination of defendant and victim. See id. at 321 (Brennan, J., dissenting).
     
200. See id. at 328-30 (Brennan, J., dissenting). In the 15 years preceding the McCleskey decision, the Court invalidated portions of Georgia's capital sentencing system on three separate occasions. See id. at 330 (Brennan, J., dissenting).
     
201. Id. at 334 (Brennan, J., dissenting).
     
202. Bender and Braveman note that the rhetoric of the slippery slope is commonly used to justify exclusion and subordination. See BENDER & BRAVEMAN, supra note 189 at 140.
     
203. McKleskey, 481 U.S. at 315-17.
     
204. 163 U.S. 537 (1896).
     
205. Plessy, 163 U.S. at 544.
     
206. See id. at 544-45.
     
207. See id. at 544.
     
208. Id. at 550.
     
209. 347 U.S. 483 (1954) [hereinafter Brown I].
     
210. Id. at 495.
     
211. Brown v. Board of Educ., 349 U.S. 294, 300 (1955).
     
212. Id. at 300-01.
     
213. 426 U.S. 229 (1976).
     
214. Id. at 248. According to one study cited by the Court, "disproportionate?impact analysis might invalidate 'tests and qualifications for voting, draft deferment, public employment, jury service, and other government?conferred benefits and opportunities . . .; [s]ales taxes, bail schedules, utility rates, bridge tolls, license fees, and other state-imposed charges.'" Id. at 248, n.14 (citations omitted). In addition, "minimum wage and usury laws as well as professional licensing requirements would require major modifications in light of the unequal?impact rule." Id. (citations omitted).
     
215. Minow, supra note 28, at 106.
     
216. 402 U.S. 1 (1971).
     
217. Id. at 21.
     
218. The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner?city neighborhoods.
     
219. Id. at 20-21.
     
220. Cf. Freeman v. Pitts, where Justice Kennedy approved the district court's decision to relinquish supervision and control over student assignments because the racial imbalance in the "schools was not a vestige of the prior de jure dual education system[,]" but rather the inevitable result of individual housing choices. Freeman v. Pitts, 503 U.S. 467, 478 (1992).
     
221. Swann, 402 U.S. at 14.
     
222. Id. at 28. Compare Justice Kennedy's invocation of the slippery slope in Freeman v. Pitts:
     
223. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never?ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever?changing pattern, one difficult to address through judicial remedies.
     
224. Freeman, 503 U.S. at 495.
     
225. Swann, 402 U.S. at 16.
     
226. 497 U.S. 547 (1990).
     
227. Id. at 553-54.
     
228. See id. at 600.
     
229. 478 U.S. 421 (1986).
     
230. Id. at 474.
     
231. 480 U.S. 616 (1987).
     
232. Id. at 647 (Stevens, J. concurring) (quoting Sullivan, The Supreme Court-Comment, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 HARV. L. REV. 78, 96 (1986)).
     
233. 388 U.S. 1 (1967).
     
234. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 272 (1995) (Ginsburg, J. dissenting) (citing Loving v. Virginia, 388 U.S. 1, 11 (1967)).
     
235. 458 U.S. 886 (1982).
     
236. Claiborne, 458 U.S. 886 at 899-900 n.26.

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