United States v. Fordice,
Annotate this Case
505 U.S. 717 (1992)
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OCTOBER TERM, 1991
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.
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.
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.