746
Thomas, J., concurring
211 (1973). As a result, we have repeatedly authorized the district courts to reassign students, despite the operation of facially neutral assignment policies, in order to eliminate or decrease observed racial imbalances. See, e. g., Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 22-31 (1971); Green, supra, at 442, n. 6.
Whatever the merit of this approach in the grade-school context, it is quite plainly not the approach that we adopt today to govern the higher education context. We explicitly reject the use of remedies as "radical" as student reassignment—i. e., "remedies akin to those upheld in Green." Ante, at 730, n. 4; see also ante, at 728-729. Of necessity, then, we focus on the specific policies alleged to produce racial imbalance, rather than on the imbalance itself. Thus, a plaintiff cannot obtain relief merely by identifying a persistent racial imbalance, because the district court cannot provide a reassignment remedy designed to eliminate that imbalance directly. Plaintiffs are likely to be able to identify, as these plaintiffs have identified, specific policies traceable to the de jure era that continue to produce a current racial imbalance. As a practical matter, then, the district courts administering our standard will spend their time determining whether such policies have been adequately justified— a far narrower, more manageable task than that imposed under Green.
A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification. When each of these elements has been met, I believe, we are justified in not requiring proof of a present specific intent to discriminate. It is safe to assume that a policy adopted during the de jure era, if it produces segregative effects, reflects a discriminatory intent. As long as that intent remains, of course, such a policy cannot continue. And given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both be-
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