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UNITED STATES v. KIRK FORDICE

decided: June 26, 1992; *fn* As Amended July 9, 1992.

UNITED STATES, PETITIONER 90-1205 v. KIRK FORDICE, GOVERNOR OF MISSISSIPPI, ET AL. JAKE AYERS, ET AL., PETITIONERS 90-6588 V. KIRK FORDICE, GOVERNOR OF MISSISSIPPI, ET AL.


ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

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., and Thomas, J., filed concurring opinions. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part.

Author: White

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 (Brown I), 347 U.S. 483, 495 (1954). The following year, the Court ordered an end to segregated public education "with all deliberate speed." Brown v. Board of Education (Brown II), 349 U.S. 294, 301 (1955). 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 this case 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 post-secondary, 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 University, 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 banc) (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.*fn1 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 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. 898-900. HEW rejected this Plan as failing to comply with Title VI because it did not go far enough in the areas of student 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.*fn2 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.*fn3

Private petitioners initiated this lawsuit in 1975. They complained that Mississippi had maintained the racially segregative effects of its prior dual system of post-secondary 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. 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.

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. 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, 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 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 case: "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 the 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. New Kent County School Bd., 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 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 fact-findings 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 case 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 , 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. , 112 S. Ct. 1579, 113 L. Ed. 2d 644 (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 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.

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. , 112 S. Ct. 1430, 118 L. Ed. 2d 108 (1992) (slip op., at 24); Bazemore v. Friday, supra, at 407 (WHITE, J., concurring); Pasadena City Board of Educ. v. Spangler, 427 U.S. 424, 434 (1976); Gilmore v. City of Montgomery, 417 U.S. 556, 566-567 (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 Education of Oklahoma City v. Dowell, 498 U.S. , , 111 S. Ct. 630, 112 L. Ed. 2d 715 (slip op., at 11); Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 18 (1971); Green v. New Kent County School Bd., 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. New Kent County School Board, supra, 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 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, "it 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, supra, at (slip op., at 21-22; Dowell, supra, at (slip op., at 11); Green, 391 U.S., at 439; Florida ex rel. Hawkins v. Board of Control of Fla., 350 U.S. 413, 414 (1956) (per curiam).*fn4 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.*fn5

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 not animated by a discriminatory purpose.*fn6 Because the standard applied by the District Court did not ...


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