United States v. Fordice

505 U.S. 717

Case Year: 1992

Case Ruling: 8-1, Vacated and Remanded

Opinion Justice: White

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Kennedy, O'Connor, Rehnquist, Souter, Stevens, Thomas


1st Concurring Opinion

Author: O'Connor


1st Dissenting Opinion

Author: Scalia in Part


2nd Concurring Opinion

Author: Thomas


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Mississippi founded its public university system in 1848 with the establishment of the University of Mississippi. Over the years, seven institutions were added to the system. The universities operated on a racially segregated basis. Five schools were dedicated to the teaching of white students: University of Mississippi, Mississippi State University, Mississippi University for Women, University of Southern Mississippi, and Delta State University. Three institutions exclusively served black students: Alcorn State University, Jackson State University, and Mississippi Valley State University.

The state did not respond quickly to the Supreme Court's decision in Brown v. Board of Education (1954). The first black student did not enroll in the University of Mississippi until 1962, and then only under court order. Over the next twelve years, no meaningful desegregation occurred. For example, the schools that had previously educated only white students remained almost totally white. No white students attended Jackson State or Mississippi Valley, and only five whites enrolled at Alcorn State.

In 1969 the U.S. Department of Health, Education, and Welfare began efforts to force Mississippi to desegregate its universities. After several years of controversy, the board of trustees for the university system developed a desegregation plan, which the federal government found inadequate. When no significant progress was made, private parties, later joined by the United States, filed suit in 1975. These plaintiffs claimed that the university system was in violation of the Equal Protection Clause and the Civil Rights Act of 1964. For the next twelve years, the involved parties unsuccessfully attempted to reach consensus on a desegregation plan. Into the mid-1980s, 99 percent of Mississippi's white college students attended the five "white" universities. These schools were 80 percent to 91 percent white. The three "black" universities remained 92 percent to 99 percent black.

Failing to reach an out-of-court agreement, the case went to trial in 1987. Seventy-one witnesses gave testimony, and the record included 56,700 pages of exhibits. The district court ruled in favor of the state, finding that it had imposed desegregation policies in good faith and had not violated federal law. The court of appeals affirmed. The United States appealed this decision to the United States Supreme Court. Governor Kirk Fordice defended the state's position.



... 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 and its progeny clearly mandate this observation. Thus, the primary issue in this case is whether the State has met its affirmative duty to dismantle its prior dual university system....

Like the United States, we do not disagree with the Court of Appeals' observation that a state university system is 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....

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.... 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.... We also disagree with respondents that the Court of Appeals and District Court properly relied on our decision in Bazemore v. Friday (1986). Bazemore neither requires nor justifies the conclusions reached by the two courts below.

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.... In this context, we held inapplicable the Green [ v. New Kent County School Bd., 1968] 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 not animated by a discriminatory purpose. 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.

Had the Court of Appeals applied the correct legal standard, it would have been apparent from the undisturbed factual 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 de jure system.... With this caveat in mind, we address four policies of the present system: admission 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 system--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 American College Testing Program (ACT).... The court described the "discriminatory taint" of this policy, an obvious reference to the fact that, at the time, the average ACT score for white students was 18 and the average for blacks was 7.... 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.... 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 admission 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. 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....

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 (MUW) is 18; it is 13 for the historically black universities. Yet MUW is assigned the same institutional mission as two other regional universities, Alcorn State and Mississippi Valley--that of providing quality undergraduate education. The effects of the policy fall disproportionately on black students who might wish to attend MUW; 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.

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 admission standards are remnants of the dual system with a continuing discriminatory effect, and the mission assignments "to some degree follow the historical racial assignments."... Moreover, the District Court did not justify the differing admission 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 (ATCP), the administering organization of the ACT, discourages use of ACT scores as the sole admissions criterion on the ground that it gives an incomplete "picture" of the student applicant's ability to perform adequately in college.... 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....

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."... 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.... 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.-...

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. 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.... 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."... 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.... 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 formerlyde 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.... The missions of Mississippi University for Women and Delta State University (DSU), by contrast, were more limited than their other all-white counterparts during the period of legalized segregation. MUW and DSU 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.... 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."...

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... 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.... 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 are only 35 miles apart and that only 20 miles separate Mississippi State and Mississippi University for Women.... 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, ... 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, ... based on the present record we are unable to say whether such action is constitutionally required. 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 prospective 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....

Because the District Court and the Court of Appeals failed to reconsider 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.