Cite as: 505 U. S. 717 (1992)
Opinion of Scalia, J.
determinative) notions of "sound educational justification" and "impracticable elimination." In short, except for the results that it produces in the present litigation (which are what they are because the Court says so), I have not the slightest idea how to apply the Court's analysis—and I doubt whether anyone else will.
Whether one consults the Court's description of what it purports to be doing, in Part III, ante, at 727-732, or what the Court actually does, in Part IV, ante, at 732-743, one must conclude that the Court is essentially applying to universities the amorphous standard adopted for primary and secondary schools in Green v. School Bd. of New Kent County, 391 U. S. 430 (1968). Like that case, today's decision places upon the State the ordinarily unsustainable burden of proving the negative proposition that it is not responsible for extant racial disparity in enrollment. See ante, at 728. Green requires school boards to prove that racially identifiable schools are not the consequence of past or present discriminatory state action, Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 26 (1971); today's opinion requires state university administrators to prove that racially identifiable schools are not the consequence of any practice or practices (in such impromptu "aggregation" as might strike the fancy of a district judge) held over from the prior de jure regime. This will imperil virtually any practice or program plaintiffs decide to challenge—just as Green has—so long as racial imbalance remains. And just as under Green, so also under today's decision, the only practicable way of disproving that "existing racial identifiability is attributable to the State," ante, at 728, is to eliminate extant segregation, i. e., to assure racial proportionality in the schools. Failing that, the State's only defense will be to establish an excuse for each challenged practice—either impracticability of elimination, which is also a theoretical excuse under the Green regime, see Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U. S. 237, 249-250 (1991),
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