Cite as: 505 U. S. 717 (1992)
Thomas, J., concurring
cause the State has created the dispute through its own prior unlawful conduct, see, e. g., Keyes, supra, at 209-210, and because discriminatory intent does tend to persist through time, see, e. g., Hazelwood School Dist. v. United States, 433 U. S. 299, 309-310, n. 15 (1977). Although we do not formulate our standard in terms of a burden shift with respect to intent, the factors we do consider—the historical background of the policy, the degree of its adverse impact, and the plausibility of any justification asserted in its defense—are precisely those factors that go into determining intent under Washington v. Davis, 426 U. S. 229 (1976). See, e. g., Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266-267 (1977). Thus, if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear—clear enough to presume conclusively—that the State has failed to disprove discriminatory intent.
We have no occasion to elaborate upon what constitutes an adequate justification. Under Green, we have recognized that an otherwise unconstitutional policy may be justified if it serves "important and legitimate ends," Dayton, supra, at 538, or if its elimination is not "practicable," Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 250 (1991). As Justice Scalia points out, see post, at 753-754, our standard appears to mirror these formulations rather closely. Nonetheless, I find most encouraging the Court's emphasis on "sound educational practices," ante, at 729 (emphasis added); see also, e. g., ante, at 731 ("sound educational justification"); ante, at 736 ("sound educational policy"). From the beginning, we have recognized that desegregation remedies cannot be designed to ensure the elimination of any remnant at any price, but rather must display "a practical flexibility" and "a facility for adjusting and reconciling public and private needs." Brown v. Board of Education, 349 U. S. 294, 300 (1955). Quite obviously, one compelling need to be considered is the educational need of the present and
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