OCTOBER TERM, 1991
Syllabus
UNITED STATES
v. FORD ICE, GOVERNOR OF MISSISSIPPI, ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 90-1205. Argued November 13, 1991-Decided June 26,1992*
Despite this Court's decisions in
Brown v.
Board of
Education, 347 U. S.
483 (Brown I), and
Brown v.
Board of Education, 349 U. S. 294 (Brown
II), Mississippi continued its policy of
de jure
segregation in its public university system, maintaining five
almost completely white and three almost exclusively black
universities. Private petitioners initiated this lawsuit in 1975,
and the United States intervened, charging that state officials had
failed to satisfy their obligation under,
inter alia, the
Equal Protection Clause of the Fourteenth Amendment and Title VI of
the Civil Rights Act of 1964 to dismantle the dual system. In an
attempt to reach a consensual resolution through voluntary
dismantlement, the State Board of Trustees, in 1981, issued
"Mission Statements" classifying the three flagship white
institutions during the
de jure period as "comprehensive"
universities having the most varied programs and offering doctoral
degrees, redesignating one of the black colleges as an "urban"
university with limited research and degree functions geared toward
its urban setting, and characterizing the rest of the colleges as
"regional" institutions which functioned primarily in an
undergraduate role. When, by the mid-1980's, the student bodies at
the white universities were still predominantly white, and the
racial composition at the black institutions remained largely
black, the suit proceeded to trial. After voluminous evidence was
presented on a full range of educational issues, the District Court
entered extensive findings of fact on, among other things,
admissions requirements, institutional classification and missions
assignments, duplication of programs, and funding. Its conclusions
of law included rulings that, based on its interpretation of
Bazemore v.
Friday, 478 U. S. 385, and other
cases, the affirmative duty to desegregate in the higher education
context does not contemplate either restricting student choice or
the achievement of any degree of racial balance; that current state
policies and practices should be examined to ensure that they are
racially neutral, developed and implemented in good faith, and do
not substantially contribute to the racial identifiability
*Together with No. 90-6588,
Ayers et al. v.
Fordice,
Governor of Mississippi, et al., also on certiorari to the same
court.
718
Syllabus
of individual institutions; and that Mississippi's current
actions demonstrate conclusively that the State is fulfilling its
affirmative duty to disestablish the former
de jure
segregated system. In affirming, the Court of Appeals left largely
undisturbed the lower court's findings and conclusions.
Held:
1. The courts below did not apply the correct legal standard in
ruling that Mississippi has brought itself into compliance with the
Equal Protection Clause. If the State perpetuates policies and
practices traceable to its prior
de jure dual system that
continue to have segregative effects-whether by influencing student
enrollment decisions or by fostering segregation in other facets of
the university system-and such policies are without sound
educational justification and can be practicably eliminated, the
policies violate the Clause, even though the State has abolished
the legal requirement that the races be educated separately and has
established racially neutral policies not animated by a
discriminatory purpose.
Bazemore v.
Friday, supra,
distinguished. The proper inquiry asks whether existing racial
identifiability is attributable to the State, see,
e. g.,
Freeman v.
Pitts, 503 U. S. 467, and
examines a wide range of factors to determine whether the State has
perpetuated its former segregation in any facet of its system, see,
e. g., Board of Ed. of Oklahoma City Public Schools v.
Dowell, 498 U.
S. 237, 250. Because the District Court's standard did not ask
the appropriate questions, the Court of Appeals erred in affirming
the lower court's judgment. Pp. 727-732.
2. When the correct legal standard is applied, it becomes
apparent from the District Court's undisturbed factual findings
that there are several surviving aspects of Mississippi's prior
dual system which are constitutionally suspect; for even though
such policies may be race neutral on their face, they substantially
restrict a person's choice of which institution to enter and they
contribute to the racial identifiability of the eight public
universities. Mississippi must justify these policies, as well as
any others that are susceptible to challenge by petitioners on
remand under the proper standard, or eliminate them. Pp.
732-743.
(a) Although the State's current admissions policy requiring
higher minimum composite scores on the American College Testing
Program (ACT) for the five historically white institutions than for
the three historically black universities derived from policies
enacted in the 1970's to redress the problem of student
unpreparedness, the policy is constitutionally suspect because it
was originally enacted in 1963 by three of the white universities
to discriminate against black students, who, at the time, had an
average ACT score well below the required minimum.
719
The policy also has present discriminatory effects, since a much
higher percentage of white than of black high school seniors
recently scored at or above the minimum necessary to enter a white
university. The segregative effect of this standard is especially
striking in light of the differences in minimum required entrance
scores among the white and black regional universities and colleges
with dissimilar programmatic missions, and yet the courts below
made little effort to justify those disparities in educational
terms or to inquire whether it was practicable to eliminate them.
The State's refusal to consider high school grade performance along
with ACT scores is also constitutionally problematic, since the
ACT's administering organization discourages use of ACT scores
alone, the disparity between black and white students' high school
grade averages is much narrower than the gap between their average
ACT scores, most States use high school grades and other indicators
along with standardized test scores, and Mississippi's approach was
not adequately justified or shown to be unsusceptible to
elimination without eroding sound educational policy. Pp.
733-738.
(b) The District Court's treatment of the widespread duplication
of programs at the historically black and historically white
Mississippi universities is problematic for several reasons. First,
it can hardly be denied that such duplication represents a
continuation of the "separate but equal" treatment required by the
prior dual system, and yet the court's holding that petitioners
could not establish a constitutional defect shifted the burden of
proof away from the State in violation of
Brown II, supra,
at 300, and its progeny. Second, implicit in the court's finding of
"unnecessary" duplication is the absence of any educational
justification and the fact that some, if not all, duplication may
be practically eliminated. Finally, by treating this issue in
isolation, the court failed to consider the combined effects of
unnecessary duplication with other policies in evaluating whether
the State had met its constitutional duty. Pp.738-739.
(c) Mississippi's 1981 mission assignments scheme has as its
antecedents the policies enacted to perpetuate racial separation
during the
de jure period. When combined with the
differential admission practices and unnecessary program
duplication, it is likely that the mission designations interfere
with student choice and tend to perpetuate the segregated system.
On remand, the court should inquire whether it would be practicable
and consistent with sound educational practices to eliminate any
such discriminatory effects. Pp. 739-741.
(d) Also on remand, the court should inquire and determine
whether the State's retention and operation of all eight higher
educational institutions in an attempt to bring itself into
constitutional compliance actually affects student choice and
perpetuates the
de jure system,
720
Syllabus
whether maintenance of each of the universities is educationally
justifiable, and whether one or more of them can practicably be
closed or merged with other existing institutions. Though certainly
closure of one or more institutions would decrease the system's
discriminatory effects, the present record is inadequate to
demonstrate whether such action is constitutionally required.
Pp.741-742.
(e) In addition to the foregoing policies and practices, the
full range of the State's higher educational activities, including
its funding of the three historically black schools, must be
examined on remand under the proper standard to determine whether
the State is taking the necessary steps to dismantle its prior
system. Pp.742-743.
914 F.2d
676, vacated and remanded.
WHITE, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, KENNEDY, SOUTER,
and THOMAS, JJ., joined. O'CONNOR, J.,
post, p. 743, and
THOMAS, J.,
post, p. 745, filed concurring opinions. SCALIA,
J., filed an opinion concurring in the judgment in part and
dissenting in part,
post, p. 749.
Solicitor General Starr argued the cause for the United States.
With him on the briefs were Assistant Attorney General Dunne,
Deputy Solicitor General Roberts, Roger Clegg and Barbara S. Drake,
Deputy Assistant Attorneys General, and Jeffrey P. Minear. Alvin O.
Chambliss, Jr., argued the cause for petitioners in No. 90-6588.
With him on the briefs were Lawrence Young and Robert Pressman.
William F. Goodman, Jr., argued the cause for respondents
in both cases. With him on the brief were
Mike Moore,
Attorney General of Mississippi, and
Paul H. Stephenson III
and
William F. Ray, Special Assistant Attorneys
General.t
tBriefs of
amici curiae urging reversal were filed for
the State of Tennessee by
Charles W Burson, Attorney General
of Tennessee,
John Knox Walkup, Solicitor General, and
Christine Modisher, Assistant Attorney General; for Alcorn
State University by
Gilbert Kujovich; for Jackson State
University by
Deborah McDonald and
Carrol Rhodes; for
the NAACP Legal Defense and Educational Fund, Inc., et al. by
Julius LeVonne Chambers, Charles Stephen Ralston, Norman
J. Chachkin, John W Garland, Janell M. Byrd, and
John A. Powell; and for the National Bar Association et al.
by
J. Clay Smith, Jr., and
Herbert O.
Reid,
Sr.
Briefs of
amici curiae urging affirmance were filed for
the Board of Trustees of the University of Alabama by C.
Glenn
Powell and
Stanley J.
721
JUSTICE WHITE delivered the opinion of the Court.
In 1954, this Court held that the concept of " 'separate but
equal''' has no place in the field of public education.
Brown v.
Board of Education, 347 U. S. 483, 495
(Brown 1). The following year, the Court ordered an end to
segregated public education "with all deliberate speed."
Brown v.
Board of Education, 349 U. S. 294, 301 (1955)
(Brown II). Since these decisions, the Court has had many
occasions to evaluate whether a public school district has met its
affirmative obligation to dismantle its prior
de jure
segregated system in elementary and secondary schools. In these
cases we decide what standards to apply in determining whether the
State of Mississippi has met this obligation in the university
context.
I
Mississippi launched its public university system in 1848 by
establishing the University of Mississippi, an institution
dedicated to the higher education exclusively of white persons. In
succeeding decades, the State erected additional postsecondary,
single-race educational facilities. Alcorn State University opened
its doors in 1871 as "an agricultural college for the education of
Mississippi's black youth."
Ayers v.
Allain, 674 F.
Supp. 1523, 1527 (ND Miss. 1987). Creation of four more exclusively
white institutions followed:
Mississippi State University (1880), Mississippi University for
Women (1885), University of Southern Mississippi (1912), and Delta
State University (1925). The State added two more solely black
institutions in 1940 and 1950: in the former year, Jackson State
University, which was charged with training "black teachers for the
black public schools,"
id., at 1528; and in the latter year,
Mississippi Valley State Univer-
Murphy; and for Charles E. "Buddy" Roemer III, Governor of the
State of Louisiana, et al. by John N. Kennedy, Joseph
J.
Levin, Jr., Margaret E. Woodward, and W Shelby McKenzie.
Joseph A. Califano, Jr., pro se, and David S. Tatel filed a
brief of amicus curiae for Joseph A. Califano, Jr., et al.
722
sity, whose functions were to educate teachers primarily for
rural and elementary schools and to provide vocational instruction
to black students.
Despite this Court's decisions in
Brown I and
Brown
II, Mississippi's policy of
de jure segregation
continued. The first black student was not admitted to the
University of Mississippi until 1962, and then only by court order.
See
Meredith v.
Fair, 306 F.2d
374 (CA5), cert. denied, 371 U. S. 828, enf'd,
313 F.2d
532 (1962) (en bane)
(per curiam). For the next 12 years
the segregated public university system in the State remained
largely intact. Mississippi State University, Mississippi
University for Women, University of Southern Mississippi, and Delta
State University each admitted at least one black student during
these years, but the student composition of these institutions was
still almost completely white. During this period, Jackson State
and Mississippi Valley State were exclusively black; Alcorn State
had admitted five white students by 1968.
In 1969, the United States Department of Health, Education and
Welfare (HEW) initiated efforts to enforce Title VI of the Civil
Rights Act of 1964,42 U. S. C. §2000d.1 HEW requested that the
State devise a plan to disestablish the formerly
de jure
segregated university system. In June 1973, the Board of Trustees
of State Institutions of Higher Learning (Board) submitted a plan
of compliance, which expressed the aims of improving educational
opportunities for all Mississippi citizens by setting numerical
goals on the enrollment of other-race students at state
universities, hiring other-race faculty members, and instituting
remedial programs and special recruitment efforts to achieve those
goals. App. 898900. HEW rejected this Plan as failing to comply
with Title VI because it did not go far enough in the areas of
student
IThis provision states: "No person in the United States shall,
on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance."
723
recruitment and enrollment, faculty hiring, elimination of
unnecessary program duplication, and institutional funding
practices to ensure that "a student's choice of institution or
campus, henceforth, will be based on other than racial criteria."
Id., at 205. The Board reluctantly offered amendments,
prefacing its reform pledge to HEW with this statement: "With
deference, it is the position of the Board of Trustees ... that the
Mississippi system of higher education is in compliance with Title
VI of the Civil Rights Act of
1964." Id., at 898. At this
time, the racial composition of the State's universities had
changed only marginally from the levels of 1968, which were almost
exclusively single race.2 Though HEW refused to accept the modified
Plan, the Board adopted it anyway. 674 F. Supp., at 1530. But even
the limited effects of this Plan in disestablishing the prior
de jure segregated system were substantially constricted by
the state legislature, which refused to fund it until fiscal year
1978, and even then at well under half the amount sought by the
Board. App. 896-897, 1444-1445, 1448-1449.3
Private petitioners initiated this lawsuit in 1975. They
complained that Mississippi had maintained the racially segregative
effects of its prior dual system of postsecondary education in
violation of the Fifth, Ninth, Thirteenth, and Fourteenth
Amendments, 42 U. S. C. §§ 1981 and 1983, and Title VI of the Civil
Rights Act of 1964, 42 U. S. C. § 2000d.
2 For the 1974-1975 school year, black students comprised 4.1
percent of the full-time undergraduate enrollments at University of
Mississippi; at Mississippi State University, 7.5 percent; at
University of Southern Mississippi, 8.0 percent; at Delta State
University, 12.6 percent; at Mississippi University for Women, 13.0
percent. At Jackson State, Alcorn State, and Mississippi Valley
State, the percentages of black students were 96.6 percent, 99.9
percent, and 100 percent, respectively. Brief for United States
7.
3 According to counsel for respondents, it was in this time
period-the mid- to late-1970's-that the State came into full
"compliance with the law" as having taken the necessary affirmative
steps to dismantle its prior
de jure system. Tr. of Oral
Arg. 45.
724
Shortly thereafter, the United States filed its complaint in
intervention, charging that state officials had failed to satisfy
their obligation under the Equal Protection Clause of the
Fourteenth Amendment and Title VI to dismantle Mississippi's dual
system of higher education.
After this lawsuit was filed, the parties attempted for 12 years
to achieve a consensual resolution of their differences through
voluntary dismantlement by the State of its prior separated system.
The board of trustees implemented reviews of existing curricula and
program "mission" at each institution. In 1981, the Board issued
"Mission Statements" that identified the extant purpose of each
public university. These "missions" were clustered into three
categories: comprehensive, urban, and regional. "Comprehensive"
universities were classified as those with the greatest existing
resources and program offerings. All three such institutions
(University of Mississippi, Mississippi State, and Southern
Mississippi) were exclusively white under the prior
de jure
segregated system. The Board authorized each to continue offering
doctoral degrees and to assert leadership in certain disciplines.
Jackson State, the sole urban university, was assigned a more
limited research and degree mission, with both functions geared
toward its urban setting. It was exclusively black at its
inception. The "regional" designation was something of a misnomer,
as the Board envisioned those institutions primarily in an
undergraduate role, rather than a "regional" one in the
geographical sense of serving just the localities in which they
were based. Only the universities classified as "regional" included
institutions that, prior to desegregation, had been either
exclusively white-Delta State and Mississippi University for
Women-or exclusively black-Alcorn State and Mississippi Valley
State.
By the mid-1980's, 30 years after
Brown, more than 99
percent of Mississippi's white students were enrolled at University
of Mississippi, Mississippi State, Southern Mississippi, Delta
State, and Mississippi University for Women.
725
The student bodies at these universities remained predominantly
white, averaging between 80 and 91 percent white students.
Seventy-one percent of the State's black students attended Jackson
State, Alcorn State, and Mississippi Valley State, where the racial
composition ranged from 92 to 99 percent black.
Ayers v.
Allain, 893 F.2d
732, 734-735 (CA5 1990) (panel decision).
II
By 1987, the parties concluded that they could not agree on
whether the State had taken the requisite affirmative steps to
dismantle its prior
de jure segregated system. They
proceeded to trial. Both sides presented voluminous evidence on a
full range of educational issues spanning admissions standards,
faculty and administrative staff recruitment, program duplication,
on-campus discrimination, institutional funding disparities, and
satellite campuses. Petitioners argued that in various ways the
State continued to reinforce historic, race-based distinctions
among the universities. Respondents argued generally that the State
had fulfilled its duty to disestablish its state-imposed
segregative system by implementing and maintaining good-faith,
nondiscriminatory race-neutral policies and practices in student
admission, faculty hiring, and operations. Moreover, they
suggested, the State had attracted significant numbers of qualified
black students to those universities composed mostly of white
persons. Respondents averred that the mere continued existence of
racially identifiable universities was not unlawful given the
freedom of students to choose which institution to attend and the
varying objectives and features of the State's universities.
At trial's end, based on the testimony of 71 witnesses and
56,700 pages of exhibits, the District Court entered extensive
findings of fact. The court first offered a historical overview of
the higher education institutions in Mississippi and the
developments in the system between 1954 and the filing of this suit
in 1975. 674 F. Supp., at 1526-1530. It
726
then made specific findings recounting post-1975 developments,
including a description at the time of trial, in those areas of the
higher education system under attack by plaintiffs: admission
requirements and recruitment; institutional classification and
assignment of missions; duplication of programs; facilities and
finance; the land grant institutions; faculty and staff; and
governance.
Id., at 1530-1550.
The court's conclusions of law followed. As an overview, the
court outlined the common ground in the action: "Where a state has
previously maintained a racially dual system of public education
established by law, it assumes an 'affirmative duty' to reform
those policies and practices which required or contributed to the
separation of races."
Id., at 1551. Noting that courts
unanimously hold that the affirmative duty to dismantle a racially
dual structure in elementary and secondary schools also governs in
the higher education context, the court observed that there was
disagreement whether
Green v.
School Bd. of New Kent
County, 391 U. S.
430 (1968), applied in all of its aspects to formerly dual
systems of higher education, i.
e., whether "some level of
racial mixture at previously segregated institutions of higher
learning is not only desirable but necessary to 'effectively'
desegregate the system." 674 F. Supp., at 1552. Relying on a Fifth
Circuit three-judge court decision,
Alabama State Teachers Assn.
(ASTA) v.
Alabama Public School and College Authority,
289 F. Supp. 784 (MD Ala. 1968), our
per curiam affirmance
of that case,
393 U.
S. 400 (1969), and its understanding of our later decision in
Bazemore v.
Friday, 478 U. S. 385 (1986), the
court concluded that in the higher education context, "the
affirmative duty to desegregate does not contemplate either
restricting choice or the achievement of any degree of racial
balance." 674 F. Supp., at 1553. Thus, the court stated: "While
student enrollment and faculty and staff hiring patterns are to be
examined, greater emphasis should instead be placed on current
state higher education policies and practices in order to insure
that such
727
policies and practices are racially neutral, developed and
implemented in good faith, and do not substantially contribute to
the continued racial identifiability of individual institutions."
Id., at 1554.
When it addressed the same aspects of the university system
covered by the findings of fact in light of the foregoing standard,
the court found no violation of federal law in any of them. "In
summary, the court finds that current actions on the part of the
defendants demonstrate conclusively that the defendants are
fulfilling their affirmative duty to disestablish the former
de
jure segregated system of higher education."
Id., at
1564.
The Court of Appeals reheard the action en banc and affirmed the
decision of the District Court.
Ayers v.
Allain,
914 F.2d
676 (CA5 1990). With a single exception, see
infra, at
741, it did not disturb the District Court's findings of fact or
conclusions of law. The en banc majority agreed that "Mississippi
was ... constitutionally required to eliminate invidious racial
distinctions and dismantle its dual system."
Id., at 682.
That duty, the court held, had been discharged since "the record
makes clear that Mississippi has adopted and implemented race
neutral policies for operating its colleges and universities and
that all students have real freedom of choice to attend the college
or university they wish .... "
Id., at 678.
We granted the respective writs of certiorari filed by the
United States and the private petitioners. 499 U. S. 958
(1991).
III
The District Court, the Court of Appeals, and respondents
recognize and acknowledge that the State of Mississippi had the
constitutional duty to dismantle the dual school system that its
laws once mandated. Nor is there any dispute that this obligation
applies to its higher education system. If the State has not
discharged this duty, it remains in violation of the Fourteenth
Amendment.
Brown v.
Board of Education
728
and its progeny clearly mandate this observation. Thus, the
primary issue in these cases is whether the State has met its
affirmative duty to dismantle its prior dual university system.
Our decisions establish that a State does not discharge its
constitutional obligations until it eradicates policies and
practices traceable to its prior
de jure dual system that
continue to foster segregation. Thus we have consistently asked
whether existing racial identifiability is attributable to the
State, see,
e. g., Freeman v.
Pitts, 503 U. S. 467, 496
(1992);
Bazemore v.
Friday, supra, at 407 (WHITE, J.,
concurring);
Pasadena City Bd. of Ed. v.
Spangler,
427 U. S. 424,
434
(1976); Gilmore v.
City of Montgomery, 417 U. S. 556, 566567
(1974); and examined a wide range of factors to determine whether
the State has perpetuated its formerly
de jure segregation
in any facet of its institutional system. See,
e. g., Board of
Ed. of Oklahoma City Public Schools v.
Dowell, 498 U. S. 237, 250
(1991);
Swann v.
CharlotteMecklenburg Bd. of Ed.,
402 U. S. 1, 18
(1971);
Green v.
School Bd. of New Kent County,
supra, at 435-438.
The Court of Appeals concluded that the State had fulfilled its
affirmative obligation to disestablish its prior
de jure
segregated system by adopting and implementing race-neutral
policies governing its college and university system. Because
students seeking higher education had "real freedom" to choose the
institution of their choice, the State need do no more. Even though
neutral policies and free choice were not enough to dismantle a
dual system of primary or secondary schools,
Green v.
School Bd. of New Kent County, 391 U. S. 430 (1968), the
Court of Appeals thought that universities "differ in character
fundamentally" from lower levels of schools, 914 F. 2d, at 686,
sufficiently so that our decision in
Bazemore v.
Friday,
supra, justified the conclusion that the State had dismantled
its former dual system.
Like the United States, we do not disagree with the Court of
Appeals' observation that a state university system is
729
quite different in very relevant respects from primary and
secondary schools. Unlike attendance at the lower level schools, a
student's decision to seek higher education has been a matter of
choice. The State historically has not assigned university students
to a particular institution. Moreover, like public universities
throughout the country, Mississippi's institutions of higher
learning are not fungible-they have been designated to perform
certain missions. Students who qualify for admission enjoy a range
of choices of which institution to attend. Thus, as the Court of
Appeals stated, "[i]t hardly needs mention that remedies common to
public school desegregation, such as pupil assignments, busing,
attendance quotas, and zoning, are unavailable when persons may
freely choose whether to pursue an advanced education and, when the
choice is made, which of several universities to attend." 914 F.
2d, at 687.
We do not agree with the Court of Appeals or the District Court,
however, that the adoption and implementation of race-neutral
policies alone suffice to demonstrate that the State has completely
abandoned its prior dual system. That college attendance is by
choice and not by assignment does not mean that a race-neutral
admissions policy cures the constitutional violation of a dual
system. In a system based on choice, student attendance is
determined not simply by admissions policies, but also by many
other factors. Although some of these factors clearly cannot be
attributed to state policies, many can be. Thus, even after a State
dismantles its segregative
admissions policy, there may
still be state action that is traceable to the State's prior
de
jure segregation and that continues to foster segregation. The
Equal Protection Clause is offended by "sophisticated as well as
simple-minded modes of discrimination."
Lane v.
Wilson, 307 U.
S. 268, 275 (1939). If policies traceable to the
de jure
system are still in force and have discriminatory effects, those
policies too must be reformed to the extent practicable and
consistent with sound educational practices.
Freeman,
730
supra, at 494;
Dowell, supra, at 250;
Green,
supra, at 439;
Florida ex rel. Hawkins v.
Board of
Control of Fla., 350 U. S. 413, 414 (1956)
(per
curiam}.4 We also disagree with respondents that the Court of
Appeals and District Court properly relied on our decision in
Bazemore v.
Friday, 478 U. S. 385 (1986).
Bazemore neither requires nor justifies the conclusions
reached by the two courts below. 5
4 To the extent we understand private petitioners to urge us to
focus on present discriminatory effects without addressing whether
such consequences flow from policies rooted in the prior system, we
reject this position. Private petitioners contend that the State
must not only cease its legally authorized discrimination, it must
also "eliminate its continuing effects insofar as practicable."
Brieffor Petitioners in No. 90-6588, p. 44. Though they seem to
disavow as radical a remedy as student reassignment in the
university setting,
id., at 66, their focus on "student
enrollment, faculty and staff employment patterns, [and] black
citizens' college-going and degree-granting rates,"
id., at
63, would seemingly compel remedies akin to those upheld in
Green v.
School Ed. of New Kent County, 391 U. S. 430 (1968),
were we to adopt their legal standard. As will become clear,
however, the inappropriateness of remedies adopted in
Green
by no means suggests that the racial identifiability of the
institutions in a university system is irrelevant to deciding
whether a State such as Mississippi has satisfactorily dismantled
its prior
de jure dual system or that the State need not
take additional steps to ameliorate such identifiability.
5 Similarly, reliance on our
per curiam affirmance in
Alabama State Teachers Assn. v.
Alabama Public School and
College Authority, 289 F. Supp. 784 (MD Ala. 1968)
(ASTA), aff'd,
393 U. S. 400 (1969)
(per curiam), is misplaced. In
ASTA, the state
teachers association sought to enjoin construction of an extension
campus of Auburn University in Montgomery, Alabama. The three-judge
District Court rejected the allegation that such a facility would
perpetuate the State's dual system. It found that the State had
educationally justifiable reasons for this new campus and that it
had acted in good faith in the fields of admissions, faculty, and
staff. 289 F. Supp., at 789. The court also noted that it was
"reasonable to conclude that a new institution will not be a white
school or a Negro school, but just a school."
Ibid.
Respondents are incorrect to suppose that
ASTA validates
policies traceable to the
de jure system regardless of
whether or not they are educationally justifiable or can be
practicably altered to reduce their segregative effects.
731
Bazemore raised the issue whether the financing and
operational assistance provided by a state university's extension
service to voluntary 4-H and Homemaker Clubs was inconsistent with
the Equal Protection Clause because of the existence of numerous
all-white and all-black clubs. Though prior to 1965 the clubs were
supported on a segregated basis, the District Court had found that
the policy of segregation had been completely abandoned and that no
evidence existed of any lingering discrimination in either services
or membership; any racial imbalance resulted from the wholly
voluntary and unfettered choice of private individuals.
Bazemore, supra, at 407 (WHITE, J., concurring). In this
context, we held inapplicable the
Green Court's judgment
that a voluntary choice program was insufficient to dismantle a
de jure dual system in public primary and secondary schools,
but only after satisfying ourselves that the State had not fostered
segregation by playing a part in the decision of which club an
individual chose to join.
Bazemore plainly does not excuse inquiry into whether
Mississippi has left in place certain aspects of its prior dual
system that perpetuate the racially segregated higher education
system. If the State perpetuates policies and practices traceable
to its prior system that continue to have segregative
effects-whether by influencing student enrollment decisions or by
fostering segregation in other facets of the university system-and
such policies are without sound educational justification and can
be practicably eliminated, the State has not satisfied its burden
of proving that it has dismantled its prior system. Such policies
run afoul of the Equal Protection Clause, even though the State has
abolished the legal requirement that whites and blacks be educated
separately and has established racially neutral policies
732
not animated by a discriminatory purpose.6 Because the standard
applied by the District Court did not make these inquiries, we hold
that the Court of Appeals erred in affirming the District Court's
ruling that the State had brought itself into compliance with the
Equal Protection Clause in the operation of its higher education
system.7
IV
Had the Court of Appeals applied the correct legal standard, it
would have been apparent from the undisturbed fac-
6 Of course, if challenged policies are not rooted in the prior
dual system, the question becomes whether the fact of racial
separation establishes a new violation of the Fourteenth Amendment
under traditional principles.
Board of Ed. of Oklahoma City
Public Schools v.
Dowell, 498 U. S. 237, 250-251
(1991);
Arlington Heights v.
Metropolitan Housing
Development Corp., 429 U. S. 252 (1977).
7 The Court of Appeals also misanalyzed the Title VI claim. The
court stated that "we are not prepared to say the defendants have
failed to meet the duties outlined in the regulations."
914 F.2d
676, 687-688, n. 11
(CA5 1990). The court added that it
need not "discuss the scope of Mississippi's duty under the
regulations" because "the duty outlined by the Supreme Court in
Bazemore controls in Title VI cases."
Ibid. It will
be recalled, however, that the relevant agency and the courts had
specifically found no violation of the regulation in
Bazemore v.
Friday, 478 U. S. 385,409 (1986)
(WHITE, J., concurring). Insofar as it failed to perform the same
factual inquiry and application as the courts in
Bazemore
had made, therefore, the Court of Appeals' reliance on
Bazemore to
avoid conducting a similar analysis in
these cases was inappropriate.
Private petitioners reiterate in this Court their assertion that
the state system also violates Title VI, citing a regulation to
that statute which requires States to "take affirmative action to
overcome the effects of prior discrimination." 34 CFR §
100.3(b)(6)(i) (1991). Our cases make clear, and the parties do not
disagree, that the reach of Title VI's protection extends no
further than the Fourteenth Amendment. See
Regents of Univ. of
California v.
Bakke, 438 U. S. 265, 287 (1978)
(opinion of Powell, J.);
id., at 328 (opinion of Brennan,
WHITE, Marshall, and BLACKMUN, JJ., concurring in judgment in part
and dissenting in part); see also
Guardians Assn. v.
Civil Service Comm'n of New York City, 463 U. S. 582, 610-611
(1983) (Powell, J., concurring in judgment);
id., at 612-613
(O'CONNOR, J., concurring in judgment);
id., at 639-643
(STEVENS, J., dissenting). We thus treat the issues in these cases
as they are implicated under the Constitution.
733
tual findings of the District Court that there are several
surviving aspects of Mississippi's prior dual system which are
constitutionally suspect; for even though such policies may be race
neutral on their face, they substantially restrict a person's
choice of which institution to enter, and they contribute to the
racial identifiability of the eight public universities.
Mississippi must justify these policies or eliminate them.
It is important to state at the outset that we make no effort to
identify an exclusive list of unconstitutional remnants of
Mississippi's prior
de jure system. In highlighting, as we
do below, certain remnants of the prior system that are readily
apparent from the findings of fact made by the District Court and
affirmed by the Court of Appeals,s we by no means suggest that the
Court of Appeals need not examine, in light of the proper standard,
each of the other policies now governing the State's university
system that have been challenged or that are challenged on remand
in light of the standard that we articulate today. With this caveat
in mind, we address four policies of the present system: admissions
standards, program duplication, institutional mission assignments,
and continued operation of all eight public universities.
We deal first with the current admissions policies of
Mississippi's public universities. As the District Court found, the
three flagship historically white universities in the sys-
8 In this sense, it is important to reiterate that we do not
disturb the findings of no discriminatory purpose in the many
instances in which the courts below made such conclusions. The
private petitioners and the United States, however, need not show
such discriminatory intent to establish a constitutional violation
for the perpetuation of policies traceable to the prior
de
jure segregative regime which have continuing discriminatory
effects. As for present policies that do not have such historical
antecedents, a claim of violation of the Fourteenth Amendment
cannot be made out without a showing of discriminatory purpose. See
supra, at 732, n. 6.
734
tern-University of Mississippi, Mississippi State University,
and University of Southern Mississippi-enacted policies in 1963
requiring all entrants to achieve a minimum composite score of 15
on the test administered by the American College Testing Program
(ACT). 674 F. Supp., at 1531. The court described the
"discriminatory taint" of this policy,
id., at 1557, an
obvious reference to the fact that, at the time, the average ACT
score for white students was 18 and the average score for blacks
was 7. 893 F. 2d, at 735. The District Court concluded, and the en
banc Court of Appeals agreed, that present admissions standards
derived from policies enacted in the 1970's to redress the problem
of student unpreparedness. 914 F. 2d, at 679; 674 F. Supp., at
1531. Obviously, this mid passage justification for perpetuating a
policy enacted originally to discriminate against black students
does not make the present admissions standards any less
constitutionally suspect.
The present admissions standards are not only traceable to the
de jure system and were originally adopted for a
discriminatory purpose, but they also have present discriminatory
effects. Every Mississippi resident under 21 seeking admission to
the university system must take the ACT test. Any applicant who
scores at least 15 qualifies for automatic admission to any of the
five historically white institutions except Mississippi University
for Women, which requires a score of 18 for automatic admission
unless the student has a 3.0 high school grade average. Those
scoring less than 15 but at least 13 automatically qualify to enter
Jackson State University, Alcorn State University, and Mississippi
Valley State University. Without doubt, these requirements restrict
the range of choices of entering students as to which institution
they may attend in a way that perpetuates segregation. Those
scoring 13 or 14, with some exceptions, are excluded from the five
historically white universities and if they want a higher education
must go to one of the historically black institutions or attend
junior college with the hope
735
of transferring to a historically white institution.9
Proportionately more blacks than whites face this choice: In 1985,
72 percent of Mississippi's white high school seniors achieved an
ACT composite score of 15 or better, while less than 30 percent of
black high school seniors earned that score. App. 1524-1525. It is
not surprising then that Mississippi's universities remain
predominantly identifiable by race.
The segregative effect of this automatic entrance standard is
especially striking in light of the differences in minimum
automatic entrance scores among the regional universities in
Mississippi's system. The minimum score for automatic admission to
Mississippi University for Women is 18; it is 13 for the
historically black universities. Yet Mississippi University for
Women is assigned the same institutional mission as two other
regional universities, Alcorn State and Mississippi Valley
State-that of providing quality undergraduate education. The
effects of the policy fall disproportionately on black students who
might wish to attend Mississippi University for Women; and though
the disparate impact is not as great, the same is true of the
minimum standard ACT score of 15 at Delta State University-the
other "regional" university-as compared to the historically black
"regional" universities where a score of 13 suffices for automatic
admission. The courts below made little, if any, effort to justify
in educational terms those particular disparities in entrance
requirements or to inquire whether it was practicable to eliminate
them.
9The District Court's finding that "[v]ery few black students,
if any, are actually denied admission to a Mississippi university
as a first-time freshman for failure to achieve the minimal ACT
score,"
Ayers v.
Allain, 674 F. Supp. 1523, 1535 (ND
Miss. 1987), ignores the inherent self-selection that accompanies
public announcement of "automatic" admissions standards. It is
logical to think that some percentage of black students who fail to
score 15 do
not seek admission to one of the historically
white universities because of this automatic admissions
standard.
736
We also find inadequately justified by the courts below or by
the record before us the differential admissions requirements
between universities with dissimilar programmatic missions. We do
not suggest that absent a discriminatory purpose different
programmatic missions accompanied by different admissions standards
would be constitutionally suspect simply because one or more
schools are racially identifiable. But here the differential
admissions standards are remnants of the dual system with a
continuing discriminatory effect, and the mission assignments "to
some degree follow the historical racial assignments," 914 F. 2d,
at 692. Moreover, the District Court did not justify the differing
admissions standards based on the different mission assignments. It
observed only that in the 1970's, the board of trustees justified a
minimum ACT score of 15 because too many students with lower scores
were not prepared for the historically white institutions and that
imposing the 15 score requirement on admissions to the historically
black institutions would decimate attendance at those universities.
The District Court also stated that the mission of the regional
universities had the more modest function of providing quality
undergraduate education. Certainly the comprehensive universities
are also, among other things, educating undergraduates. But we
think the 15 ACT test score for automatic admission to the
comprehensive universities, as compared with a score of 13 for the
regionals, requires further justification in terms of sound
educational policy.
Another constitutionally problematic aspect of the State's use
of the ACT test scores is its policy of denying automatic admission
if an applicant fails to earn the minimum ACT score specified for
the particular institution, without also resorting to the
applicant's high school grades as an additional factor in
predicting college performance. The United States produced evidence
that the American College Testing Program (ACTP), the administering
organization of the ACT, discourages use of ACT scores as the sole
admissions crite-
737
rion on the ground that it gives an incomplete "picture" of the
student applicant's ability to perform adequately in college. App.
1209-1210. One ACTP report presented into evidence suggests that
"it would be foolish" to substitute a 3- or 4-hour test in place of
a student's high school grades as a means of predicting college
performance.
Id., at 193. The record also indicated that the
disparity between black and white students' high school grade
averages was much narrower than the gap between their average ACT
scores, thereby suggesting that an admissions formula which
included grades would increase the number of black students
eligible for automatic admission to all of Mississippi's public
universities.10
The United States insists that the State's refusal to consider
information which would better predict college performance than ACT
scores alone is irrational in light of most States' use of high
school grades and other indicators along with standardized test
scores. The District Court observed that the board of trustees was
concerned with grade inflation and the lack of comparability in
grading practices and course offerings among the State's diverse
high schools. Both the District Court and the Court of Appeals
found this concern ample justification for the failure to consider
high school grade performance along with ACT scores. In our view,
such justification is inadequate because the ACT requirement was
originally adopted for discriminatory purposes, the
10 In 1985, 72 percent of white students in Mississippi scored
15 or better on the ACT test, whereas only 30 percent of black
students achieved that mark, a difference of nearly 21/2 times. By
contrast, the disparity among grade averages was not nearly so
wide. 43.8 percent of white high school students and 30.5 percent
of black students averaged at least a 3.0, and 62.2 percent of
whites and 49.2 percent of blacks earned at least a 2.5 grade point
average. App. 1524-1525. Though it failed to make specific
factfindings on this point, this evidence, which the State does not
dispute, is fairly encompassed within the District Court's
statement that "[b]lack students on the average score somewhat
lower [than white students]." 674 F. Supp., at 1535.
738
current requirement is traceable to that decision and seemingly
continues to have segregative effects, and the State has so far
failed to show that the "ACT-only" admissions standard is not
susceptible to elimination without eroding sound educational
policy.
A second aspect of the present system that necessitates further
inquiry is the widespread duplication of programs. "Unnecessary"
duplication refers, under the District Court's definition, "to
those instances where two or more institutions offer the same
nonessential or noncore program. Under this definition, all
duplication at the bachelor's level of nonbasic liberal arts and
sciences course work and all duplication at the master's level and
above are considered to be unnecessary." 674 F. Supp., at 1540. The
District Court found that 34.6 percent of the 29 undergraduate
programs at historically black institutions are "unnecessarily
duplicated" by the historically white universities, and that 90
percent of the graduate programs at the historically black
institutions are unnecessarily duplicated at the historically white
institutions.
Id., at 1541. In its conclusions of law on
this point, the District Court nevertheless determined that "there
is no proof" that such duplication "is directly associated with the
racial identifiability of institutions," and that "there is no
proof that the elimination of unnecessary program duplication would
be justifiable from an educational standpoint or that its
elimination would have a substantial effect on student choice."
Id., at 1561.
The District Court's treatment of this issue is problematic from
several different perspectives. First, the court appeared to impose
the burden of proof on the plaintiffs to meet a legal standard the
court itself acknowledged was not yet formulated. It can hardly be
denied that such duplication was part and parcel of the prior dual
system of higher education-the whole notion of "separate but equal"
required duplicative programs in two sets of schools-and that the
present unnecessary duplication is a continuation of that
practice.
739
Brown and its progeny, however, established that the
burden of proof falls on the
State, and not the aggrieved
plaintiffs, to establish that it has dismantled its prior
de
jure segregated system.
Brown II, 349 U. S., at 300. The
court's holding that petitioners could not establish the
constitutional defect of unnecessary duplication, therefore,
improperly shifted the burden away from the State. Second, implicit
in the District Court's finding of "unnecessary" duplication is the
absence of any educational justification and the fact that some, if
not all, duplication may be practicably eliminated. Indeed, the
District Court observed that such duplication "cannot be justified
economically or in terms of providing quality education." 674 F.
Supp., at 1541. Yet by stating that "there is no proof" that
elimination of unnecessary duplication would decrease institutional
racial identifiability, affect student choice, and promote
educationally sound policies, the court did not make clear whether
it had directed the parties to develop evidence on these points,
and if so, what that evidence revealed. See
id., at 1561.
Finally, by treating this issue in isolation, the court failed to
consider the combined effects of unnecessary program duplication
with other policies, such as differential admissions standards, in
evaluating whether the State had met its duty to dismantle its
prior
de jure segregated system.
We next address Mississippi's scheme of institutional mission
classification, and whether it perpetuates the State's formerly
de jure dual system. The District Court found that,
throughout the period of
de jure segregation, University of
Mississippi, Mississippi State University, and University of
Southern Mississippi were the flagship institutions in the state
system. They received the most funds, initiated the most advanced
and specialized programs, and developed the widest range of
curricular functions. At their inception, each was restricted for
the education solely of white persons.
Id., at 1526-1528.
The missions of Mississippi University for Women and Delta State
University, by contrast, were more
740
limited than their other all-white counterparts during the
period of legalized segregation. Mississippi University for Women
and Delta State University were each established to provide
undergraduate education solely for white students in the liberal
arts and such other fields as music, art, education, and home
economics.
Id., at 1527-1528. When they were founded, the
three exclusively black universities were more limited in their
assigned academic missions than the five all-white institutions.
Alcorn State, for example, was designated to serve as "an
agricultural college for the education of Mississippi's black
youth."
Id., at 1527. Jackson State and Mississippi Valley
State were established to train black teachers.
Id., at
1528. Though the District Court's findings do not make this point
explicit, it is reasonable to infer that state funding and
curriculum decisions throughout the period of
de jure
segregation were based on the purposes for which these institutions
were established.
In 1981, the State assigned certain missions to Mississippi's
public universities as they then existed. It classified University
of Mississippi, Mississippi State, and Southern Mississippi as
"comprehensive" universities having the most varied programs and
offering graduate degrees. Two of the historically white
institutions, Delta State University and Mississippi University for
Women, along with two of the historically black institutions,
Alcorn State University and Mississippi Valley State University,
were designated as "regional" universities with more limited
programs and devoted primarily to undergraduate education. Jackson
State University was classified as an "urban" university whose
mission was defined by its urban location.
The institutional mission designations adopted in 1981 have as
their antecedents the policies enacted to perpetuate racial
separation during the
de jure segregated regime. The Court
of Appeals expressly disagreed with the District Court by
recognizing that the "inequalities among the institutions largely
follow the mission designations, and the mis-
741
sion designations to some degree follow the historical racial
assignments." 914 F. 2d, at 692. It nevertheless upheld this facet
of the system as constitutionally acceptable based on the existence
of good-faith racially neutral policies and procedures. That
different missions are assigned to the universities surely limits
to some extent an entering student's choice as to which university
to seek admittance. While the courts below both agreed that the
classification and mission assignments were made without
discriminatory purpose, the Court of Appeals found that the record
"supports the plaintiffs' argument that the mission designations
had the effect of maintaining the more limited program scope at the
historically black universities."
Id., at 690. We do not
suggest that absent discriminatory purpose the assignment of
different missions to various institutions in a State's higher
education system would raise an equal protection issue where one or
more of the institutions become or remain predominantly black or
white. But here the issue is whether the State has sufficiently
dismantled its prior dual system; and when combined with the
differential admission practices and unnecessary program
duplication, it is likely that the mission designations interfere
with student choice and tend to perpetuate the segregated system.
On remand, the court should inquire whether it would be practicable
and consistent with sound educational practices to eliminate any
such discriminatory effects of the State's present policy of
mission assignments.
Fourth, the State attempted to bring itself into compliance with
the Constitution by continuing to maintain and operate all eight
higher educational institutions. The existence of eight instead of
some lesser number was undoubtedly occasioned by state laws
forbidding the mingling of the races. And as the District Court
recognized, continuing to maintain all eight universities in
Mississippi is wasteful and irrational. The District Court pointed
especially to the facts that Delta State and Mississippi Valley
State are only 35 miles apart
742
and that only 20 miles separate Mississippi State and
Mississippi University for Women. 674 F. Supp., at 1563-1564. It
was evident to the District Court that "the defendants undertake to
fund more institutions of higher learning than are justified by the
amount of financial resources available to the state,"
id.,
at 1564, but the court concluded that such fiscal irresponsibility
was a policy choice of the legislature rather than a feature of a
system subject to constitutional scrutiny.
Unquestionably, a larger rather than a smaller number of
institutions from which to choose in itself makes for different
choices, particularly when examined in the light of other factors
present in the operation of the system, such as admissions, program
duplication, and institutional mission designations. Though
certainly closure of one or more institutions would decrease the
discriminatory effects of the present system, see,
e.
g., United States v.
Louisiana, 718 F. Supp.
499, 514 (ED La. 1989), based on the present record we are unable
to say whether such action is constitutionally required.ll
Elimination of program duplication and revision of admissions
criteria may make institutional closure unnecessary. However, on
remand this issue should be carefully explored by inquiring and
determining whether retention of all eight institutions itself
affects student choice and perpetuates the segregated higher
education system, whether maintenance of each of the universities
is educationally justifiable, and whether one or more of them can
be practicably closed or merged with other existing
institutions.
Because the former
de jure segregated system of public
universities in Mississippi impeded the free choice of pro-
11 It should be noted that in correspondence with the board of
trustees in 1973, an HEW official expressed the "overall objective"
of the Plan to be "that a student's choice of institution or
campus, henceforth, will be based on other than racial criteria."
App. 205. The letter added that closure of a formerly
de
jure black institution "would create a presumption that a
greater burden is being placed upon the black students and faculty
in Mississippi."
Id., at 206.
743
spective students, the State in dismantling that system must
take the necessary steps to ensure that this choice now is truly
free. The full range of policies and practices must be examined
with this duty in mind. That an institution is predominantly white
or black does not in itself make out a constitutional violation.
But surely the State may not leave in place policies rooted in its
prior officially segregated system that serve to maintain the
racial identifiability of its universities if those policies can
practicably be eliminated without eroding sound educational
policies.
If we understand private petitioners to press us to order the
upgrading of Jackson State, Alcorn State, and Mississippi Valley
State
solely so that they may be publicly financed,
exclusively black enclaves by private choice, we reject that
request. The State provides these facilities for
all its
citizens and it has not met its burden under
Brown to take
affirmative steps to dismantle its prior
de jure system when
it perpetuates a separate, but "more equal" one. Whether such an
increase in funding is necessary to achieve a full dismantlement
under the standards we have outlined, however, is a different
question, and one that must be addressed on remand.
Because the District Court and the Court of Appeals failed to
consider the State's duties in their proper light, the cases must
be remanded. To the extent that the State has not met its
affirmative obligation to dismantle its prior dual system, it shall
be adjudged in violation of the Constitution and Title VI and
remedial proceedings shall be conducted. The decision of the Court
of Appeals is vacated, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring.
I join the opinion of the Court, which requires public
universities, like public elementary and secondary schools, to
744
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
745
constitutional obligation to dismantle the discriminatory system
that should, by now, be only a distant memory.
JUSTICE THOMAS, concurring.
"We must rally to the defense of our schools. We must repudiate
this unbearable assumption of the right to kill institutions unless
they conform to one narrow standard." Du Bois, Schools, 13 The
Crisis 111, 112 (1917).
I agree with the Court that a State does not satisfy its
obligation to dismantle a dual system of higher education merely by
adopting race-neutral policies for the future administration of
that system. Today, we hold that "[i]f policies traceable to the
de jure system are still in force and have discriminatory
effects, those policies too must be reformed to the extent
practicable and consistent with sound educational practices."
Ante, at 729. I agree that this statement defines the
appropriate standard to apply in the higher education context. I
write separately to emphasize that this standard is far different
from the one adopted to govern the grade-school context in
Green v.
School Bd. of New Kent County, 391 U. S. 430 (1968), and
its progeny. In particular, because it does not compel the
elimination of all observed racial imbalance, it portends neither
the destruction of historically black colleges nor the severing of
those institutions from their distinctive histories and
traditions.
In
Green, we held that the adoption of a
freedom-of-choice plan does not satisfy the obligations of a
formerly
de jure grade-school system should the plan fail to
decrease, if not eliminate, the racial imbalance within that
system. See
id., at 441. Although racial imbalance does not
itself establish a violation of the Constitution, our decisions
following
Green indulged the presumption, often irrebuttable
in practice, that a presently observed imbalance has been
proximately caused by intentional state action during the prior
de jure era. See,
e. g., Dayton Bd. of
Ed. v.
Brinkman, 443 U. S. 526, 537
(1979); Keyes v.
School Dist. No.1, Denver, 413 U. S. 189,
746
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 justifieda 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-
747
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
748
future
students in the Mississippi university system, for
whose benefit the remedies will be crafted.
In particular, we do not foreclose the possibility that there
exists "sound educational justification" for maintaining
historically black colleges
as such. Despite the shameful
history of state-enforced segregation, these institutions have
survived and flourished. Indeed, they have expanded as
opportunities for blacks to enter historically white institutions
have expanded. Between 1954 and 1980, for example, enrollment at
historically black colleges increased from 70,000 to 200,000
students, while degrees awarded increased from 13,000 to 32,000.
See S. Hill, National Center for Education Statistics, The
Traditionally Black Institutions of Higher Education 1860 to 1982,
pp. xiv-xv (1985). These accomplishments have not gone
unnoticed:
"The colleges founded for Negroes are both a source of pride to
blacks who have attended them and a source of hope to black
families who want the benefits of higher learning for their
children. They have exercised leadership in developing educational
opportunities for young blacks at all levels of instruction, and,
especially in the South, they are still regarded as key
institutions for enhancing the general quality of the lives of
black Americans." Carnegie Commission on Higher Education, From
Isolation to Mainstream: Problems of the Colleges Founded for
Negroes 11 (1971).
I think it undisputable that these institutions have succeeded
in part because of their distinctive histories and traditions; for
many, historically black colleges have become "a symbol of the
highest attainments of black culture." J. Preer, Lawyers v.
Educators: Black Colleges and Desegregation in Public Higher
Education 2 (1982). Obviously, a State cannot maintain such
traditions by closing particular institutions, historically white
or historically black, to particular racial groups. Nonetheless, it
hardly follows that a
749
State cannot operate a diverse assortment of
institutionsincluding historically black institutions-open to all
on a race-neutral basis, but with established traditions and
programs that might disproportionately appeal to one race or
another. No one, I imagine, would argue that such institutional
diversity is without "sound educational justification," or
that it is even remotely akin to program
duplication, which
is designed to separate the races for the sake of separating the
races. The Court at least hints at the importance of this value
when it distinguishes
Green in part on the ground that
colleges and universities "are not fungible."
Ante, at 729.
Although I agree that a State is not constitutionally
required to maintain its historically black institutions as
such, see
ante, at 743, I do not understand our opinion to
hold that a State is
forbidden to do so. It would be ironic,
to say the least, if the institutions that sustained blacks during
segregation were themselves destroyed in an effort to combat its
vestiges.
JUSTICE SCALIA, concurring in the judgment in part and
dissenting in part.
With some of what the Court says today, I agree. I agree, of
course, that the Constitution compels Mississippi to remove all
discriminatory barriers to its state-funded universities.
Brown v.
Board of Education, 347 U. S. 483 (1954)
(Brown I). I agree that the Constitution does not compel
Mississippi to remedy funding disparities between its historically
black institutions (HBI's) and historically white institutions
(HWI's). And I agree that Mississippi's American College Testing
Program (ACT) requirements need further review. I reject, however,
the effectively unsustainable burden the Court imposes on
Mississippi, and all States that formerly operated segregated
universities, to demonstrate compliance with
Brown 1. That
requirement, which resembles what we prescribed for primary and
secondary schools in
Green v.
School Bd. of New Kent
County, 391 U. S. 430
750
Opinion of SCALIA, J.
(1968), has no proper application in the context of higher
education, provides no genuine guidance to States and lower courts,
and is as likely to subvert as to promote the interests of those
citizens on whose behalf the present suit was brought.
I
Before evaluating the Court's handiwork, it is no small task
simply to comprehend it. The Court sets forth not one, but
seemingly two different tests for ascertaining compliance with
Brown I-though in the last analysis they come to the same.
The Court initially announces the following test, in Part III of
its opinion: All policies (i) "traceable to [the State's] prior
[de jure] system" (ii) "that continue to have segregative
effects-whether by influencing student enrollment decisions or by
fostering segregation in other facets of the university system-"
must be eliminated (iii) to the extent "practicabl[e]" and (iv)
consistent with "sound educational" practices.
Ante, at 731.
When the Court comes to applying its test, however, in Part IV of
the opinion, "influencing student enrollment decisions" is not
merely one example of a "segregative effec[t]," but is elevated to
an independent and essential requirement of its own. The policies
that must be eliminated are those that (i) are legacies of the dual
system, (ii) "contribute to the racial identifiability" of the
State's universities (the same as (i) and (ii) in Part II!), and,
in addition, (iii) do so in a way that
"substantially
restrict[s] a person's choice of which institution to enter."
Ante, at 733 (emphasis added). See also
ante, at
734-735, 738-739, 741-743.
What the Court means by "substantially restrict[ing] a person's
choice of which institution to enter" is not clear. During the
course of the discussion in Part IV the requirement changes from
one of strong coercion ("substantially restrict,"
ante, at
733, "interfere,"
ante, at 741), to one of middling pressure
("restrict,"
ante, at 734, "limi[t],"
ante, at 741),
to one of slight inducement ("inherent[ly] self-selec[t],"
ante, at 735, n. 9, "affect,"
ante, at 739, 742). If
words have any
751
meaning, in this last stage of decrepitude the requirement is so
frail that almost anything will overcome it. Even an
open-admissions policy would fall short of ensuring that student
choice is
unaffected by state action. The Court's results
also suggest that the "restricting choice" requirement is
toothless. Nothing else would explain how it could be met by
Mississippi's mission designations, program duplication, and
operation of all eight formerly
de jure colleges. Only a
test aimed at state action that "affects" student choice could
implicate policies such as these, which in no way
restrict
the decision where to attend college. (Indeed, program duplication
and continuation of the eight schools have quite the opposite
effect; they
multiply, rather than restrict, limit, or
impede the available choices.) At the end of the day, then, the
Court dilutes this potentially useful concept to the point of such
insignificance that it adds nothing to the Court's test except
confusion. It will be a fertile source of litigation.
Almost as inscrutable in its operation as the "restricting
choice" requirement is the requirement that challenged state
practices perpetuate
de facto segregation. That is "likely"
met, the Court says, by Mississippi's mission designations.
Ante, at 741. Yet surely it is apparent that by designating
three colleges of the same prior disposition (HWI's) as the
only comprehensive schools, Mississippi encouraged
integration; and that the suggested alternative of elevating an HBI
to comprehensive status (so that blacks could go there instead of
to the HWI's) would have been an invitation to continuing
segregation. See
Ayers v.
Allain, 674 F. Supp. 1523,
1562 (ND Miss. 1987) ("Approximately 30% of all black college
students attending four-year colleges in the state attend one of
the comprehensive universities"). It appears, moreover, that even
if a particular practice does not, in isolation, rise to the
minimal level of fostering segregation, it can be aggregated with
other ones, and the
composite condemned. See
ante, at
739-740 ("by treating [the] issue [of program duplication] in
isolation, the [district] court failed to consider the combined
effects of unnecessary program duplication
752
Opinion of SCALIA, J.
with other policies, such as differential admissions
standards");
ante, at 741 ("[W]hen combined with the
differential admission practices and unnecessary program
duplication, it is likely that the mission designations ... tend to
perpetuate the segregated system"). It is interesting to speculate
how university administrators are going to guess which practices a
district judge will choose to aggregate; or how district judges are
going to guess when disaggregation is lawful.
The Court appears to suggest that a practice that has been
aggregated and condemned may be disaggregated and approved so long
as it does not
itself "perpetuat[e] the segregated higher
education system,"
ante, at 742-which seems, of course, to
negate the whole purpose of aggregating in the first place. The
Court says:
"Elimination of program duplication and revision of admissions
criteria may make institutional closure unnecessary .... [O]n
remand this issue should be carefully explored by inquiring and
determining whether retention of all eight institutions itself ...
perpetuates the segregated higher education system, whether
maintenance of each of the universities is educationally
justifiable, and whether one or more of them can be practicably
closed or merged with other existing institutions."
Ibid.
Perhaps the Court means, however, that even if retention of all
eight institutions is found by itself
not to "perpetuat[e]
the segregated higher education system," it must
still be
found that such retention is "educationally justifiable," or that
none of the institutions can be "practicably closed or merged." It
is unclear.
Besides the ambiguities inherent in the "restricting choice"
requirement and the requirement that the challenged state practice
or practices perpetuate segregation, I am not sanguine that there
will be comprehensible content to the to-be-defined-Iater (and,
make no mistake about it, outcome-
753
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.
CharlotteMecklenburg 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),
754
Opinion of SCALIA, J.
or sound educational value, which (presumably) is not much
different from the "important and legitimate ends" excuse available
under
Green, see
Dayton Bd. of Ed. v.
Brinkman, 443
U. S. 526, 538 (1979).
II
Application of the standard (or standards) announced today has
no justification in precedent, and in fact runs contrary to a case
decided six years ago, see
Bazemore v.
Friday,
478 U. S. 385
(1986). The Court relies primarily upon citations of
Green
and other primary and secondary school cases. But those decisions
left open the question whether
Green merits application in
the distinct context of higher education. Beyond that, the Court
relies on
Brown I, Florida ex rel. Hawkins v.
Board of Control of Fla., 350 U. S. 413
(1956) (per curiam), and
Gilmore v.
City of
Montgomery, 417
U. S. 556 (1974). That reliance also is mistaken.
The constitutional evil of the "separate but equal" regime that
we confronted in
Brown I was that blacks were told to go to
one set of schools, whites to another. See
Plessy v.
Ferguson, 163
U. S. 537 (1896). What made this "evenhanded" racial
partitioning offensive to equal protection was its implicit
stigmatization of minority students: "To separate [black students]
from others of similar age and qualifications solely because of
their race generates a feeling of inferiority as to their status in
the community that may affect their hearts and minds in a way
unlikely ever to be undone."
Brown I, 347 U. S., at
494. In the context of higher education, a context in which
students decide whether to attend school and if so where, the only
unconstitutional derivations of that bygone system are those that
limit access on discriminatory bases; for only they have the
potential to generate the harm
Brown I condemned, and only
they have the potential to deny students equal access to the best
public education a State has to offer. Legacies of the dual system
that permit (or even incidentally facilitate) free choice of
racially
755
identifiable schools-while still assuring each individual
student the right to attend
whatever school he wishes-do not
have these consequences.
Our decisions immediately following
Brown I also fail to
sustain the Court's approach. They, too, suggest that former
de
jure States have one duty: to eliminate discriminatory
obstacles to admission.
Brown v.
Board of Education,
349 U. S. 294
(1955)
(Brown II), requires States "to achieve a system of
determining admission to the public schools on a nonracial basis,"
id., at 300-301, as do other cases of that era, see,
e.
g., Cooper v.
Aaron, 358 U. S. 1, 7 (1958);
Goss v.
Board of Ed. of Knoxville, 373 U. S. 683, 687
(1963).
Nor do
Hawkins or
Gilmore support what the Court
has done.
Hawkins involved a segregated graduate school, to
be sure. But our one-paragraph
per curiam opinion supports
nothing more than what I have said: The duty to dismantle means the
duty to establish nondiscriminatory admissions criteria. See 350 U.
S., at 414 ("He is entitled to prompt admission under the rules and
regulations applicable to other qualified candidates").
Establishment of neutral admissions standards, not the eradication
of all "policies traceable to the
de jure system ...
hav[ing] discriminatory effects,"
ante, at 729, is what
Hawkins is about. Finally,
Gilmore, quite simply, is
inapposite. All that we did there was uphold an order enjoining a
city from granting exclusive access to its parks and recreational
facilities to segregated private schools and to groups affiliated
with such schools. 417 U. S., at 569. Notably, in the one case that
does bear proximately on today's decision,
Bazemore, supra,
we declined to apply
Gilmore. See
Bazemore, supra, at
408 (WHITE, J., concurring) ("Our cases requiring parks and the
like to be desegregated lend no support for requiring more than
what has been done in this case").
If we are looking to precedent to guide us in the context of
higher education, we need not go back 38 years to
Brown I,
read between the lines of
Hawkins, or conjure authority
756
Opinion of SCALIA, J.
(Gilmore) that does not exist. In
Bazemore v.
Friday, supra, we addressed a dispute parallel in all
relevant respects to this one. At issue there was state financing
of 4-H and Homemaker youth clubs by the North Carolina Agricultural
Extension Service, a division of North Carolina State University.
In the
Plessy era, club affiliations had been dictated by
race; after 1964, they were governed by neutral criteria. Yet
"there were a great many all-white and allblack clubs" at the time
suit was filed. 478 U. S., at 407. We nonetheless declined to adopt
Green's requirement that "affirmative action [be taken] to
integrate" once segregatedby-law/still segregated-in-fact state
institutions. 478 U. S., at 408. We confined
Green to
primary and secondary public schools, where "schoolchildren must go
to school" and where "school boards customarily have the power to
create school attendance areas and otherwise designate the school
that particular students may attend." 478 U. S, at 408. "[T]his
case," we said, "presents no current violation of the Fourteenth
Amendment since the Service has discontinued its prior
discriminatory practices and has adopted a wholly neutral
admissions policy. The mere continued existence of single-race
clubs does not make out a constitutional violation."
Ibid.
The Court asserts that we reached the result we did in
Bazemore "only after satisfying ourselves that the State had
not fostered segregation by playing a part in the decision of which
club an individual chose to join,"
ante, at 731-implying
that we assured ourselves there, as the Court insists we must do
here, that none of the State's practices carried over from
de
jure days incidentally played a part in the decision of which
club an individual chose to join. We did no such thing. An accurate
description of
Bazemore was set forth in
Richmond v.
J. A. Croson Co., 488 U. S. 469 (1989):
"mere existence of single-race clubs ... cannot create a duty to
integrate," we said
Bazemore held, "in absence of
evidence of exclusion by race," 488 U. S., at 503 (emphasis
ad de d)-
757
not "in absence of evidence of state action playing a
part in the decision of which club an individual chose to join."
The only thing we "satisfied ourselves" about in
Bazemore
was that the club members' choices were "wholly voluntary and
unfettered," 478 U. S., at 407-which does not mean the State
"play[ed] [no] part in the decision of which club an individual
chose to join," however much the Court may mush the concepts
together today. It is, on the face of things, entirely unbelievable
that the previously established characteristics of the various
all-white and all-black 4-H Clubs (where each of them met, for
example) did not even playa part in young people's decisions of
which club to join.
Bazemore's standard for dismantling a dual system ought
to control here: discontinuation of discriminatory practices and
adoption of a neutral admissions policy. To use
Green
nomenclature, modern racial imbalance remains a "vestige" of past
segregative practices in Mississippi's universities, in that the
previously mandated racial identification continues to affect where
students choose to enroll-just as it surely affected which clubs
students chose to join in
Bazemore. We tolerated this
vestigial effect in
Bazemore, squarely rejecting the view
that the State was obliged to correct "the racial segregation
resulting from [its prior] practice[s]." 478 U. S., at 417
(Brennan, J., dissenting in part). And we declined to require the
State, as the Court has today, to prove that no holdover practices
of the
de jure system,
e. g., program
offerings in the different clubs, played a role in the students'
decisions of which clubs to join. If that analysis was correct six
years ago in
Bazemore, and I think it was, it must govern
here as well. Like the club attendance in
Bazemore (and
unlike the school attendance in
Green), attending college is
voluntary, not a legal obligation, and which institution particular
students attend is determined by their own choice, not by "school
boards [who] customarily have the power to create school attendance
areas and otherwise designate the school that particular students
may attend."
Baze-
758
Opinion of SCALIA, J.
more, supra, at 408. Indeed,
Bazemore was a more
appealing case than these for adhering to the
Green
approach, since the 4-H Clubs served students similar in age to
those in
Green, and had been "organized in the public
schools" until the early 1960's. 478 U. S., at 417.
It is my view that the requirement of compelled integration
(whether by student assignment, as in
Green itself, or by
elimination of nonintegrated options, as the Court today
effectively decrees) does not apply to higher education. Only one
aspect of a historically segregated university system need be
eliminated: discriminatory admissions standards. The burden is upon
the formerly
de jure system to show that that has been
achieved. Once that has been done, however, it is not just
unprecedented, but illogical as well, to establish that former
de jure States continue to deny equal protection of the law
to students whose choices among public university offerings are
unimpeded by discriminatory barriers. Unless one takes the position
that
Brown I required States not only to provide equal
access to their universities but also to correct lingering
disparities between them, that is, to remedy institutional
noncompliance with the "equal" requirement of
Plessy, a
State is in compliance with
Brown I once it
establishes that it has dismantled all discriminatory barriers to
its public universities. Having done that, a State is free to
govern its public institutions of higher learning as it will,
unless it is convicted of discriminating anew-which requires both
discriminatory intent and discriminatory causation. See
Washington v.
Davis, 426 U. S. 229 (1976).
That analysis brings me to agree with the judgment that the
Court of Appeals must be reversed in part-for the reason (quite
different from the Court's) that Mississippi has not borne the
burden of demonstrating that intentionally discriminatory
admissions standards have been eliminated. It has been established
that Mississippi originally adopted ACT assessments as an
admissions criterion because that was an effective means of
excluding blacks from the HWI's. See
759
Ayers v.
Allain, 674 F. Supp., at 1555;
Ayers v.
Allain, 914 F.2d
676, 690 (CA5 1990) (en bane). Given that finding, the District
Court should have required Mississippi to prove that its continued
use of ACT requirements does not have a racially exclusionary
purpose and effect-a not insubstantial task, see
Freeman v.
Pitts, 503 U.
S. 467, 503 (SCALIA, J., concurring).
III
I must add a few words about the unanticipated consequences of
today's decision. Among petitioners' contentions is the claim that
the Constitution requires Mississippi to correct funding
disparities between its HBI's and HWI's. The Court rejects that,
see
ante, at 743-as I think it should, since it is students
and not colleges that are guaranteed equal protection of the laws.
See
Sweatt v.
Painter, 339 U. S. 629, 635 (1950);
Missouri ex rel. Gaines v.
Canada, 305 U. S. 337, 351
(1938). But to say that the Constitution does not
require
equal funding is not to say that the Constitution
prohibits
it. The citizens of a State may conclude that if certain of their
public educational institutions are used predominantly by whites
and others predominantly by blacks, it is desirable to fund those
institutions more or less equally.
Ironically enough, however, today's decision seems to prevent
adoption of such a conscious policy. What the Court says about
duplicate programs is as true of equal funding:
The requirement "was part and parcel of the prior dual system."
Ante, at 738. Moreover, equal funding, like program
duplication, facilitates continued segregation-enabling students to
attend schools where their own race predominates without paying a
penalty in the quality of education. Nor could such an
equal-funding policy be saved on the basis that it serves what the
Court calls a "sound educational justification." The only
conceivable
educational value it furthers is that of
fostering schools in which blacks receive their education in a
"majority" setting; but to acknowledge that as a "value" would
contradict the compulsory-integration philo so-
760
Opinion of SCALIA, J.
phy that underlies
Green. Just as vulnerable, of course,
would be all other programs that have the effect of facilitating
the continued existence of predominantly black institutions:
elevating an HBI to comprehensive status (but see
ante, at
740-741, where the Court inexplicably suggests that this action may
be required); offering a so-called Afrocentric curriculum, as has
been done recently on an experimental basis in some secondary and
primary schools, see Jarvis,
Brown and the Afrocentric
Curriculum, 101 Yale L. J. 1285, 1287, and n. 12 (1992); preserving
eight separate universities, see
ante, at 741-742, which is
perhaps Mississippi's single policy most segregative in effect; or
providing funding for HBI's as HBI's, see 20 U. S. C. §§
1060-1063c, which does just that.
But this predictable impairment of HBI's should come as no
surprise: for incidentally facilitating-indeed, even tolerating-the
continued existence of HBI's is not what the Court's test is about,
and has never been what
Green is about. See
Green,
391 U. S., at 442 ("The Board must be required to formulate a new
plan and ... fashion steps which promise realistically to convert
promptly to a system without a 'white' school and a 'Negro'
school") (footnote omitted). What the Court's test is designed to
achieve is the elimination of predominantly black institutions.
While that may be good social policy, the present petitioners, I
suspect, would not agree; and there is much to be said for the
Court of Appeals' perception in
Ayers, 914 F. 2d, at 687,
that "if no [state] authority exists to deny [the student] the
right to attend the institution of his choice, he is done a severe
disservice by remedies which, in seeking to maximize integration,
minimize diversity and vitiate his choices." But whether or not the
Court's antagonism to unintegrated schooling is good policy, it is
assuredly not good constitutional law. There is nothing
unconstitutional about a "black" school in the sense, not of a
school that blacks
must attend and that whites
cannot, but of a school that, as a consequence of private
choice
761
in residence or in school selection, contains, and has long
contained, a large black majority. See
McLaurin v.
Oklahoma State Regents for Higher Ed., 339 U. S. 637, 641
(1950). (The Court says this, see
ante, at 743, but does not
appear to mean it, see
ante, at 730, n. 4.) In a perverse
way, in fact, the insistence, whether explicit or implicit, that
such institutions not be permitted to endure perpetuates the very
stigma of black inferiority that
Brown I sought to destroy.
Not only Mississippi, but Congress itself, seems out of step with
the drum that the Court beats today, judging by its passage of an
Act entitled "Strengthening Historically Black Colleges and
Universities," which authorizes the Education Department to provide
money grants to historically black colleges. 20 U. S. C. §§
1060-1063c. The implementing regulations designate Alcorn State
University, Jackson State University, and Mississippi Valley State
University as eligible recipients. See 34 CFR § 608.2(b)
(1991).
***
The Court was asked to decide today whether, in the provision of
university education, a State satisfies its duty under
Brown
I by removing discriminatory barriers to admissions. That
question required us to choose between the standards established in
Green and
Bazemore, both of which involved (as, for
the most part, this does) free-choice plans that failed to end
de facto segregation. Once the confusion engendered by the
Court's something-for-all, guidance-to-none opinion has been
dissipated, compare
ante, at 744-745 (O'CONNOR, J.,
concurring), with
ante, at 747-749 (THOMAS, J., concurring),
it will become apparent that, essentially, the Court has adopted
Green.
I would not predict, however, that today's opinion will succeed
in producing the same result as
Green-viz., compelling the
States to compel racial "balance" in their schools-because of
several practical imperfections: because the Court deprives
district judges of the most efficient (and perhaps
762
Opinion of SCALIA, J.
the only effective)
Green remedy, mandatory student
assignment, see
ante, at 730, n. 4; because some
contradictory elements of the opinion (its suggestion, for example,
that Mississippi's mission designations foster, rather than deter,
segregation) will prevent clarity of application; and because the
virtually standardless discretion conferred upon district judges
(see Part I,
supra) will permit them to do pretty much what
they please. What I do predict is a number of years of
litigation-driven confusion and destabilization in the university
systems of all the formerly
de jure States, that will
benefit neither blacks nor whites, neither predominantly black
institutions nor predominantly white ones. Nothing good will come
of this judicially ordained turmoil, except the public recognition
that any court that would knowingly impose it must hate
segregation. We must find some other way of making that point.
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