744
O'Connor, J., concurring
affirmatively dismantle their prior de jure segregation in order to create an environment free of racial discrimination and to make aggrieved individuals whole. See Brown v. Board of Education, 349 U. S. 294, 299 (1955); Milliken v. Bradley, 418 U. S. 717, 746 (1974). I write separately to emphasize that it is Mississippi's burden to prove that it has undone its prior segregation, and that the circumstances in which a State may maintain a policy or practice traceable to de jure segregation that has segregative effects are narrow. In light of the State's long history of discrimination, and the lost educational and career opportunities and stigmatic harms caused by discriminatory educational systems, see Brown v. Board of Education, 347 U. S. 483, 494 (1954); Sweatt v. Painter, 339 U. S. 629, 634-635 (1950); McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640-641 (1950), the courts below must carefully examine Mississippi's proffered justifications for maintaining a remnant of de jure segregation to ensure that such rationales do not merely mask the perpetuation of discriminatory practices. Where the State can accomplish legitimate educational objectives through less segregative means, the courts may infer lack of good faith; "at the least it places a heavy burden upon the [State] to explain its preference for an apparently less effective method." Green v. School Bd. of New Kent County, 391 U. S. 430, 439 (1968). In my view, it also follows from the State's obligation to prove that it has "take[n] all steps" to eliminate policies and practices traceable to de jure segregation, Freeman v. Pitts, 503 U. S. 467, 485 (1992), that if the State shows that maintenance of certain remnants of its prior system is essential to accomplish its legitimate goals, then it still must prove that it has counteracted and minimized the segregative impact of such policies to the extent possible. Only by eliminating a remnant that unnecessarily continues to foster segregation or by negating insofar as possible its segregative impact can the State satisfy its
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