OCTOBER TERM, 1991SyllabusUNITED STATES
v. FORD ICE, GOVERNOR OF MISSISSIPPI, ETAL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTHCIRCUITNo. 90-1205. Argued November 13, 1991-Decided June 26,1992*Despite this Court's decisions in
Brown v.
Board ofEducation, 347 U. S.
483 (Brown I), and
Brown v.
Board of Education,349 U. S. 294(BrownII), Mississippi continued its policy of
de juresegregation in its public university system, maintaining fivealmost completely white and three almost exclusively blackuniversities. Private petitioners initiated this lawsuit in 1975,and the United States intervened, charging that state officials hadfailed to satisfy their obligation under,
inter alia, theEqual Protection Clause of the Fourteenth Amendment and Title VI ofthe Civil Rights Act of 1964 to dismantle the dual system. In anattempt to reach a consensual resolution through voluntarydismantlement, the State Board of Trustees, in 1981, issued"Mission Statements" classifying the three flagship whiteinstitutions during the
de jure period as "comprehensive"universities having the most varied programs and offering doctoraldegrees, redesignating one of the black colleges as an "urban"university with limited research and degree functions geared towardits urban setting, and characterizing the rest of the colleges as"regional" institutions which functioned primarily in anundergraduate role. When, by the mid-1980's, the student bodies atthe white universities were still predominantly white, and theracial composition at the black institutions remained largelyblack, the suit proceeded to trial. After voluminous evidence waspresented on a full range of educational issues, the District Courtentered extensive findings of fact on, among other things,admissions requirements, institutional classification and missionsassignments, duplication of programs, and funding. Its conclusionsof law included rulings that, based on its interpretation of
Bazemore v.
Friday,478 U. S. 385, and othercases, the affirmative duty to desegregate in the higher educationcontext does not contemplate either restricting student choice orthe achievement of any degree of racial balance; that current statepolicies and practices should be examined to ensure that they areracially neutral, developed and implemented in good faith, and donot 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 samecourt.
718Syllabusof individual institutions; and that Mississippi's currentactions demonstrate conclusively that the State is fulfilling itsaffirmative duty to disestablish the former
de juresegregated system. In affirming, the Court of Appeals left largelyundisturbed the lower court's findings and conclusions.Held:1. The courts below did not apply the correct legal standard inruling that Mississippi has brought itself into compliance with theEqual Protection Clause. If the State perpetuates policies andpractices traceable to its prior
de jure dual system thatcontinue to have segregative effects-whether by influencing studentenrollment decisions or by fostering segregation in other facets ofthe university system-and such policies are without soundeducational justification and can be practicably eliminated, thepolicies violate the Clause, even though the State has abolishedthe legal requirement that the races be educated separately and hasestablished racially neutral policies not animated by adiscriminatory purpose.
Bazemore v.
Friday, supra,distinguished. The proper inquiry asks whether existing racialidentifiability is attributable to the State, see,
e. g.,Freeman v.
Pitts,503 U. S. 467, andexamines a wide range of factors to determine whether the State hasperpetuated 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 askthe appropriate questions, the Court of Appeals erred in affirmingthe lower court's judgment. Pp. 727-732.2. When the correct legal standard is applied, it becomesapparent from the District Court's undisturbed factual findingsthat there are several surviving aspects of Mississippi's priordual system which are constitutionally suspect; for even thoughsuch policies may be race neutral on their face, they substantiallyrestrict a person's choice of which institution to enter and theycontribute to the racial identifiability of the eight publicuniversities. Mississippi must justify these policies, as well asany others that are susceptible to challenge by petitioners onremand under the proper standard, or eliminate them. Pp.732-743.(a) Although the State's current admissions policy requiringhigher minimum composite scores on the American College TestingProgram (ACT) for the five historically white institutions than forthe three historically black universities derived from policiesenacted in the 1970's to redress the problem of studentunpreparedness, the policy is constitutionally suspect because itwas originally enacted in 1963 by three of the white universitiesto discriminate against black students, who, at the time, had anaverage ACT score well below the required minimum.
719The policy also has present discriminatory effects, since a muchhigher percentage of white than of black high school seniorsrecently scored at or above the minimum necessary to enter a whiteuniversity. The segregative effect of this standard is especiallystriking in light of the differences in minimum required entrancescores among the white and black regional universities and collegeswith dissimilar programmatic missions, and yet the courts belowmade little effort to justify those disparities in educationalterms or to inquire whether it was practicable to eliminate them.The State's refusal to consider high school grade performance alongwith ACT scores is also constitutionally problematic, since theACT's administering organization discourages use of ACT scoresalone, the disparity between black and white students' high schoolgrade averages is much narrower than the gap between their averageACT scores, most States use high school grades and other indicatorsalong with standardized test scores, and Mississippi's approach wasnot adequately justified or shown to be unsusceptible toelimination without eroding sound educational policy. Pp.733-738.(b) The District Court's treatment of the widespread duplicationof programs at the historically black and historically whiteMississippi universities is problematic for several reasons. First,it can hardly be denied that such duplication represents acontinuation of the "separate but equal" treatment required by theprior dual system, and yet the court's holding that petitionerscould not establish a constitutional defect shifted the burden ofproof 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 educationaljustification and the fact that some, if not all, duplication maybe practically eliminated. Finally, by treating this issue inisolation, the court failed to consider the combined effects ofunnecessary duplication with other policies in evaluating whetherthe State had met its constitutional duty. Pp.738-739.(c) Mississippi's 1981 mission assignments scheme has as itsantecedents the policies enacted to perpetuate racial separationduring the
de jure period. When combined with thedifferential admission practices and unnecessary programduplication, it is likely that the mission designations interferewith student choice and tend to perpetuate the segregated system.On remand, the court should inquire whether it would be practicableand consistent with sound educational practices to eliminate anysuch discriminatory effects. Pp. 739-741.(d) Also on remand, the court should inquire and determinewhether the State's retention and operation of all eight highereducational institutions in an attempt to bring itself intoconstitutional compliance actually affects student choice andperpetuates the
de jure system,
720Syllabuswhether maintenance of each of the universities is educationallyjustifiable, and whether one or more of them can practicably beclosed or merged with other existing institutions. Though certainlyclosure of one or more institutions would decrease the system'sdiscriminatory effects, the present record is inadequate todemonstrate whether such action is constitutionally required.Pp.741-742.(e) In addition to the foregoing policies and practices, thefull range of the State's higher educational activities, includingits funding of the three historically black schools, must beexamined on remand under the proper standard to determine whetherthe State is taking the necessary steps to dismantle its priorsystem. Pp.742-743.
914 F.2d676, vacated and remanded.WHITE, J., delivered the opinion of the Court, in whichREHNQUIST, C. J., and BLACKMUN, STEVENS, O'CONNOR, KENNEDY, SOUTER,and THOMAS, JJ., joined. O'CONNOR, J.,
post, p. 743, andTHOMAS, J.,
post, p. 745, filed concurring opinions. SCALIA,J., filed an opinion concurring in the judgment in part anddissenting 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 respondentsin both cases. With him on the brief were
Mike Moore,Attorney General of Mississippi, and
Paul H. Stephenson IIIand
William F. Ray, Special Assistant AttorneysGeneral.ttBriefs of
amici curiae urging reversal were filed forthe State of Tennessee by
Charles W Burson, Attorney Generalof Tennessee,
John Knox Walkup, Solicitor General, and
Christine Modisher, Assistant Attorney General; for AlcornState University by
Gilbert Kujovich; for Jackson StateUniversity by
Deborah McDonald and
Carrol Rhodes; forthe NAACP Legal Defense and Educational Fund, Inc., et al. by
Julius LeVonne Chambers, Charles Stephen Ralston, NormanJ.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 forthe Board of Trustees of the University of Alabama by C.
GlennPowell and
StanleyJ.
721JUSTICE WHITE delivered the opinion of the Court.In 1954, this Court held that the concept of " 'separate butequal''' 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 tosegregated 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 manyoccasions to evaluate whether a public school district has met itsaffirmative obligation to dismantle its prior
de juresegregated system in elementary and secondary schools. In thesecases we decide what standards to apply in determining whether theState of Mississippi has met this obligation in the universitycontext.IMississippi launched its public university system in 1848 byestablishing the University of Mississippi, an institutiondedicated to the higher education exclusively of white persons. Insucceeding decades, the State erected additional postsecondary,single-race educational facilities. Alcorn State University openedits doors in 1871 as "an agricultural college for the education ofMississippi's black youth."
Ayers v.
Allain, 674 F.Supp. 1523, 1527 (ND Miss. 1987). Creation of four more exclusivelywhite institutions followed:Mississippi State University (1880), Mississippi University forWomen (1885), University of Southern Mississippi (1912), and DeltaState University (1925). The State added two more solely blackinstitutions in 1940 and 1950: in the former year, Jackson StateUniversity, which was charged with training "black teachers for theblack public schools,"
id., at 1528; and in the latter year,Mississippi Valley State Univer-Murphy; and for Charles E. "Buddy" Roemer III, Governor of theState 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 abrief of amicus curiae for Joseph A. Califano, Jr., et al.
722sity, whose functions were to educate teachers primarily forrural and elementary schools and to provide vocational instructionto black students.Despite this Court's decisions in
Brown I and
BrownII, Mississippi's policy of
de jure segregationcontinued. The first black student was not admitted to theUniversity of Mississippi until 1962, and then only by court order.See
Meredith v.
Fair,306 F.2d374 (CA5), cert. denied, 371 U. S. 828, enf'd,
313 F.2d532 (1962) (en bane)
(per curiam). For the next 12 yearsthe segregated public university system in the State remainedlargely intact. Mississippi State University, MississippiUniversity for Women, University of Southern Mississippi, and DeltaState University each admitted at least one black student duringthese years, but the student composition of these institutions wasstill almost completely white. During this period, Jackson Stateand Mississippi Valley State were exclusively black; Alcorn Statehad admitted five white students by 1968.In 1969, the United States Department of Health, Education andWelfare (HEW) initiated efforts to enforce Title VI of the CivilRights Act of 1964,42 U. S. C. §2000d.1 HEW requested that theState devise a plan to disestablish the formerly
de juresegregated university system. In June 1973, the Board of Trusteesof State Institutions of Higher Learning (Board) submitted a planof compliance, which expressed the aims of improving educationalopportunities for all Mississippi citizens by setting numericalgoals on the enrollment of other-race students at stateuniversities, hiring other-race faculty members, and institutingremedial programs and special recruitment efforts to achieve thosegoals. App. 898900. HEW rejected this Plan as failing to complywith Title VI because it did not go far enough in the areas ofstudentIThis provision states: "No person in the United States shall,on the ground of race, color, or national origin, be excluded fromparticipation in, be denied the benefits of, or be subjected todiscrimination under any program or activity receiving Federalfinancial assistance."
723recruitment and enrollment, faculty hiring, elimination ofunnecessary program duplication, and institutional fundingpractices to ensure that "a student's choice of institution orcampus, 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: "Withdeference, it is the position of the Board of Trustees ... that theMississippi system of higher education is in compliance with TitleVI of the Civil Rights Act of
1964." Id., at 898. At thistime, the racial composition of the State's universities hadchanged only marginally from the levels of 1968, which were almostexclusively single race.2 Though HEW refused to accept the modifiedPlan, the Board adopted it anyway. 674 F. Supp., at 1530. But eventhe limited effects of this Plan in disestablishing the prior
de jure segregated system were substantially constricted bythe state legislature, which refused to fund it until fiscal year1978, and even then at well under half the amount sought by theBoard. App. 896-897, 1444-1445, 1448-1449.3Private petitioners initiated this lawsuit in 1975. Theycomplained that Mississippi had maintained the racially segregativeeffects of its prior dual system of postsecondary education inviolation of the Fifth, Ninth, Thirteenth, and FourteenthAmendments, 42 U. S. C. §§ 1981 and 1983, and Title VI of the CivilRights Act of 1964, 42 U. S. C. § 2000d.2 For the 1974-1975 school year, black students comprised 4.1percent of the full-time undergraduate enrollments at University ofMississippi; at Mississippi State University, 7.5 percent; atUniversity of Southern Mississippi, 8.0 percent; at Delta StateUniversity, 12.6 percent; at Mississippi University for Women, 13.0percent. At Jackson State, Alcorn State, and Mississippi ValleyState, the percentages of black students were 96.6 percent, 99.9percent, and 100 percent, respectively. Brief for United States7.3 According to counsel for respondents, it was in this timeperiod-the mid- to late-1970's-that the State came into full"compliance with the law" as having taken the necessary affirmativesteps to dismantle its prior
de jure system. Tr. of OralArg. 45.
724Shortly thereafter, the United States filed its complaint inintervention, charging that state officials had failed to satisfytheir obligation under the Equal Protection Clause of theFourteenth Amendment and Title VI to dismantle Mississippi's dualsystem of higher education.After this lawsuit was filed, the parties attempted for 12 yearsto achieve a consensual resolution of their differences throughvoluntary dismantlement by the State of its prior separated system.The board of trustees implemented reviews of existing curricula andprogram "mission" at each institution. In 1981, the Board issued"Mission Statements" that identified the extant purpose of eachpublic university. These "missions" were clustered into threecategories: comprehensive, urban, and regional. "Comprehensive"universities were classified as those with the greatest existingresources and program offerings. All three such institutions(University of Mississippi, Mississippi State, and SouthernMississippi) were exclusively white under the prior
de juresegregated system. The Board authorized each to continue offeringdoctoral degrees and to assert leadership in certain disciplines.Jackson State, the sole urban university, was assigned a morelimited research and degree mission, with both functions gearedtoward its urban setting. It was exclusively black at itsinception. The "regional" designation was something of a misnomer,as the Board envisioned those institutions primarily in anundergraduate role, rather than a "regional" one in thegeographical sense of serving just the localities in which theywere based. Only the universities classified as "regional" includedinstitutions that, prior to desegregation, had been eitherexclusively white-Delta State and Mississippi University forWomen-or exclusively black-Alcorn State and Mississippi ValleyState.By the mid-1980's, 30 years after
Brown, more than 99percent of Mississippi's white students were enrolled at Universityof Mississippi, Mississippi State, Southern Mississippi, DeltaState, and Mississippi University for Women.
725The student bodies at these universities remained predominantlywhite, averaging between 80 and 91 percent white students.Seventy-one percent of the State's black students attended JacksonState, Alcorn State, and Mississippi Valley State, where the racialcomposition ranged from 92 to 99 percent black.
Ayers v.
Allain,893 F.2d732, 734-735 (CA5 1990) (panel decision).IIBy 1987, the parties concluded that they could not agree onwhether the State had taken the requisite affirmative steps todismantle its prior
de jure segregated system. Theyproceeded to trial. Both sides presented voluminous evidence on afull range of educational issues spanning admissions standards,faculty and administrative staff recruitment, program duplication,on-campus discrimination, institutional funding disparities, andsatellite campuses. Petitioners argued that in various ways theState continued to reinforce historic, race-based distinctionsamong the universities. Respondents argued generally that the Statehad fulfilled its duty to disestablish its state-imposedsegregative system by implementing and maintaining good-faith,nondiscriminatory race-neutral policies and practices in studentadmission, faculty hiring, and operations. Moreover, theysuggested, the State had attracted significant numbers of qualifiedblack students to those universities composed mostly of whitepersons. Respondents averred that the mere continued existence ofracially identifiable universities was not unlawful given thefreedom of students to choose which institution to attend and thevarying objectives and features of the State's universities.At trial's end, based on the testimony of 71 witnesses and56,700 pages of exhibits, the District Court entered extensivefindings of fact. The court first offered a historical overview ofthe higher education institutions in Mississippi and thedevelopments in the system between 1954 and the filing of this suitin 1975. 674 F. Supp., at 1526-1530. It
726then made specific findings recounting post-1975 developments,including a description at the time of trial, in those areas of thehigher education system under attack by plaintiffs: admissionrequirements and recruitment; institutional classification andassignment of missions; duplication of programs; facilities andfinance; the land grant institutions; faculty and staff; andgovernance.
Id., at 1530-1550.The court's conclusions of law followed. As an overview, thecourt outlined the common ground in the action: "Where a state haspreviously maintained a racially dual system of public educationestablished by law, it assumes an 'affirmative duty' to reformthose policies and practices which required or contributed to theseparation of races."
Id., at 1551. Noting that courtsunanimously hold that the affirmative duty to dismantle a raciallydual structure in elementary and secondary schools also governs inthe higher education context, the court observed that there wasdisagreement whether
Green v.
School Bd. of New KentCounty,391 U. S.430 (1968), applied in all of its aspects to formerly dualsystems of higher education, i.
e., whether "some level ofracial mixture at previously segregated institutions of higherlearning is not only desirable but necessary to 'effectively'desegregate the system." 674 F. Supp., at 1552. Relying on a FifthCircuit 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 affirmanceof that case,
393 U.S. 400 (1969), and its understanding of our later decision in
Bazemore v.
Friday,478 U. S. 385 (1986), thecourt concluded that in the higher education context, "theaffirmative duty to desegregate does not contemplate eitherrestricting choice or the achievement of any degree of racialbalance." 674 F. Supp., at 1553. Thus, the court stated: "Whilestudent enrollment and faculty and staff hiring patterns are to beexamined, greater emphasis should instead be placed on currentstate higher education policies and practices in order to insurethat such
727policies and practices are racially neutral, developed andimplemented in good faith, and do not substantially contribute tothe continued racial identifiability of individual institutions."
Id., at 1554.When it addressed the same aspects of the university systemcovered by the findings of fact in light of the foregoing standard,the court found no violation of federal law in any of them. "Insummary, the court finds that current actions on the part of thedefendants demonstrate conclusively that the defendants arefulfilling their affirmative duty to disestablish the former
dejure segregated system of higher education."
Id., at1564.The Court of Appeals reheard the action en banc and affirmed thedecision of the District Court.
Ayers v.
Allain,914 F.2d676 (CA5 1990). With a single exception, see
infra, at741, it did not disturb the District Court's findings of fact orconclusions of law. The en banc majority agreed that "Mississippiwas ... constitutionally required to eliminate invidious racialdistinctions and dismantle its dual system."
Id., at 682.That duty, the court held, had been discharged since "the recordmakes clear that Mississippi has adopted and implemented raceneutral policies for operating its colleges and universities andthat all students have real freedom of choice to attend the collegeor university they wish .... "
Id., at 678.We granted the respective writs of certiorari filed by theUnited States and the private petitioners. 499 U. S. 958(1991).IIIThe District Court, the Court of Appeals, and respondentsrecognize and acknowledge that the State of Mississippi had theconstitutional duty to dismantle the dual school system that itslaws once mandated. Nor is there any dispute that this obligationapplies to its higher education system. If the State has notdischarged this duty, it remains in violation of the FourteenthAmendment.
Brown v.
Board of Education
728and its progeny clearly mandate this observation. Thus, theprimary issue in these cases is whether the State has met itsaffirmative duty to dismantle its prior dual university system.Our decisions establish that a State does not discharge itsconstitutional obligations until it eradicates policies andpractices traceable to its prior
de jure dual system thatcontinue to foster segregation. Thus we have consistently askedwhether existing racial identifiability is attributable to theState, 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 whetherthe State has perpetuated its formerly
de jure segregationin any facet of its institutional system. See,
e. g., Board ofEd. 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 itsaffirmative obligation to disestablish its prior
de juresegregated system by adopting and implementing race-neutralpolicies governing its college and university system. Becausestudents seeking higher education had "real freedom" to choose theinstitution of their choice, the State need do no more. Even thoughneutral policies and free choice were not enough to dismantle adual system of primary or secondary schools,
Green v.
School Bd. of New Kent County, 391 U. S. 430 (1968), theCourt of Appeals thought that universities "differ in characterfundamentally" 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 dismantledits former dual system.Like the United States, we do not disagree with the Court ofAppeals' observation that a state university system is
729quite different in very relevant respects from primary andsecondary schools. Unlike attendance at the lower level schools, astudent's decision to seek higher education has been a matter ofchoice. The State historically has not assigned university studentsto a particular institution. Moreover, like public universitiesthroughout the country, Mississippi's institutions of higherlearning are not fungible-they have been designated to performcertain missions. Students who qualify for admission enjoy a rangeof choices of which institution to attend. Thus, as the Court ofAppeals stated, "[i]t hardly needs mention that remedies common topublic school desegregation, such as pupil assignments, busing,attendance quotas, and zoning, are unavailable when persons mayfreely choose whether to pursue an advanced education and, when thechoice 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-neutralpolicies alone suffice to demonstrate that the State has completelyabandoned its prior dual system. That college attendance is bychoice and not by assignment does not mean that a race-neutraladmissions policy cures the constitutional violation of a dualsystem. In a system based on choice, student attendance isdetermined not simply by admissions policies, but also by manyother factors. Although some of these factors clearly cannot beattributed to state policies, many can be. Thus, even after a Statedismantles its segregative
admissions policy, there maystill be state action that is traceable to the State's prior
dejure segregation and that continues to foster segregation. TheEqual Protection Clause is offended by "sophisticated as well assimple-minded modes of discrimination."
Lane v.
Wilson,307 U.S. 268, 275 (1939). If policies traceable to the
de juresystem are still in force and have discriminatory effects, thosepolicies too must be reformed to the extent practicable andconsistent with sound educational practices.
Freeman,
730supra, at 494;
Dowell, supra, at 250;
Green,supra, at 439;
Florida ex rel. Hawkins v.
Board ofControl of Fla., 350 U. S. 413, 414 (1956)
(percuriam}.4 We also disagree with respondents that the Court ofAppeals and District Court properly relied on our decision in
Bazemore v.
Friday,478 U. S. 385 (1986).
Bazemore neither requires nor justifies the conclusionsreached by the two courts below. 54 To the extent we understand private petitioners to urge us tofocus on present discriminatory effects without addressing whethersuch consequences flow from policies rooted in the prior system, wereject this position. Private petitioners contend that the Statemust not only cease its legally authorized discrimination, it mustalso "eliminate its continuing effects insofar as practicable."Brieffor Petitioners in No. 90-6588, p. 44. Though they seem todisavow as radical a remedy as student reassignment in theuniversity setting,
id., at 66, their focus on "studentenrollment, faculty and staff employment patterns, [and] blackcitizens' college-going and degree-granting rates,"
id., at63, 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
Greenby no means suggests that the racial identifiability of theinstitutions in a university system is irrelevant to decidingwhether a State such as Mississippi has satisfactorily dismantledits prior
de jure dual system or that the State need nottake additional steps to ameliorate such identifiability.5 Similarly, reliance on our
per curiam affirmance in
Alabama State Teachers Assn. v.
Alabama Public School andCollege Authority, 289 F. Supp. 784 (MD Ala. 1968)
(ASTA), aff'd,
393 U. S. 400 (1969)
(per curiam), is misplaced. In
ASTA, the stateteachers association sought to enjoin construction of an extensioncampus of Auburn University in Montgomery, Alabama. The three-judgeDistrict Court rejected the allegation that such a facility wouldperpetuate the State's dual system. It found that the State hadeducationally justifiable reasons for this new campus and that ithad acted in good faith in the fields of admissions, faculty, andstaff. 289 F. Supp., at 789. The court also noted that it was"reasonable to conclude that a new institution will not be a whiteschool or a Negro school, but just a school."
Ibid.Respondents are incorrect to suppose that
ASTA validatespolicies traceable to the
de jure system regardless ofwhether or not they are educationally justifiable or can bepracticably altered to reduce their segregative effects.
731Bazemore raised the issue whether the financing andoperational assistance provided by a state university's extensionservice to voluntary 4-H and Homemaker Clubs was inconsistent withthe Equal Protection Clause because of the existence of numerousall-white and all-black clubs. Though prior to 1965 the clubs weresupported on a segregated basis, the District Court had found thatthe policy of segregation had been completely abandoned and that noevidence existed of any lingering discrimination in either servicesor membership; any racial imbalance resulted from the whollyvoluntary and unfettered choice of private individuals.
Bazemore, supra, at 407 (WHITE, J., concurring). In thiscontext, we held inapplicable the
Green Court's judgmentthat 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 fosteredsegregation by playing a part in the decision of which club anindividual chose to join.
Bazemore plainly does not excuse inquiry into whetherMississippi has left in place certain aspects of its prior dualsystem that perpetuate the racially segregated higher educationsystem. If the State perpetuates policies and practices traceableto its prior system that continue to have segregativeeffects-whether by influencing student enrollment decisions or byfostering segregation in other facets of the university system-andsuch policies are without sound educational justification and canbe practicably eliminated, the State has not satisfied its burdenof proving that it has dismantled its prior system. Such policiesrun afoul of the Equal Protection Clause, even though the State hasabolished the legal requirement that whites and blacks be educatedseparately and has established racially neutral policies
732not animated by a discriminatory purpose.6 Because the standardapplied by the District Court did not make these inquiries, we holdthat the Court of Appeals erred in affirming the District Court'sruling that the State had brought itself into compliance with theEqual Protection Clause in the operation of its higher educationsystem.7IVHad the Court of Appeals applied the correct legal standard, itwould have been apparent from the undisturbed fac-6 Of course, if challenged policies are not rooted in the priordual system, the question becomes whether the fact of racialseparation establishes a new violation of the Fourteenth Amendmentunder traditional principles.
Board of Ed. of Oklahoma CityPublic Schools v.
Dowell,498 U. S. 237, 250-251(1991);
Arlington Heights v.
Metropolitan HousingDevelopment Corp.,429 U. S. 252 (1977).7 The Court of Appeals also misanalyzed the Title VI claim. Thecourt stated that "we are not prepared to say the defendants havefailed to meet the duties outlined in the regulations."
914 F.2d676, 687-688, n. 11
(CA5 1990). The court added that itneed not "discuss the scope of Mississippi's duty under theregulations" because "the duty outlined by the Supreme Court in
Bazemore controls in Title VI cases."
Ibid. It willbe recalled, however, that the relevant agency and the courts hadspecifically 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 samefactual inquiry and application as the courts in
Bazemorehad made, therefore, the Court of Appeals' reliance on
Bazemore to
avoid conducting a similar analysis inthese cases was inappropriate.Private petitioners reiterate in this Court their assertion thatthe state system also violates Title VI, citing a regulation tothat statute which requires States to "take affirmative action toovercome the effects of prior discrimination." 34 CFR §100.3(b)(6)(i) (1991). Our cases make clear, and the parties do notdisagree, that the reach of Title VI's protection extends nofurther than the Fourteenth Amendment. See
Regents of Univ. ofCalifornia 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 partand 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 casesas they are implicated under the Constitution.
733tual findings of the District Court that there are severalsurviving aspects of Mississippi's prior dual system which areconstitutionally suspect; for even though such policies may be raceneutral on their face, they substantially restrict a person'schoice of which institution to enter, and they contribute to theracial 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 toidentify an exclusive list of unconstitutional remnants ofMississippi's prior
de jure system. In highlighting, as wedo below, certain remnants of the prior system that are readilyapparent from the findings of fact made by the District Court andaffirmed by the Court of Appeals,s we by no means suggest that theCourt of Appeals need not examine, in light of the proper standard,each of the other policies now governing the State's universitysystem that have been challenged or that are challenged on remandin light of the standard that we articulate today. With this caveatin mind, we address four policies of the present system: admissionsstandards, program duplication, institutional mission assignments,and continued operation of all eight public universities.We deal first with the current admissions policies ofMississippi's public universities. As the District Court found, thethree flagship historically white universities in the sys-8 In this sense, it is important to reiterate that we do notdisturb the findings of no discriminatory purpose in the manyinstances in which the courts below made such conclusions. Theprivate petitioners and the United States, however, need not showsuch discriminatory intent to establish a constitutional violationfor the perpetuation of policies traceable to the prior
dejure segregative regime which have continuing discriminatoryeffects. As for present policies that do not have such historicalantecedents, a claim of violation of the Fourteenth Amendmentcannot be made out without a showing of discriminatory purpose. See
supra, at 732, n. 6.
734tern-University of Mississippi, Mississippi State University,and University of Southern Mississippi-enacted policies in 1963requiring all entrants to achieve a minimum composite score of 15on 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, anobvious reference to the fact that, at the time, the average ACTscore for white students was 18 and the average score for blackswas 7. 893 F. 2d, at 735. The District Court concluded, and the enbanc Court of Appeals agreed, that present admissions standardsderived from policies enacted in the 1970's to redress the problemof student unpreparedness. 914 F. 2d, at 679; 674 F. Supp., at1531. Obviously, this mid passage justification for perpetuating apolicy enacted originally to discriminate against black studentsdoes not make the present admissions standards any lessconstitutionally suspect.The present admissions standards are not only traceable to the
de jure system and were originally adopted for adiscriminatory purpose, but they also have present discriminatoryeffects. Every Mississippi resident under 21 seeking admission tothe university system must take the ACT test. Any applicant whoscores at least 15 qualifies for automatic admission to any of thefive historically white institutions except Mississippi Universityfor Women, which requires a score of 18 for automatic admissionunless the student has a 3.0 high school grade average. Thosescoring less than 15 but at least 13 automatically qualify to enterJackson State University, Alcorn State University, and MississippiValley State University. Without doubt, these requirements restrictthe range of choices of entering students as to which institutionthey may attend in a way that perpetuates segregation. Thosescoring 13 or 14, with some exceptions, are excluded from the fivehistorically white universities and if they want a higher educationmust go to one of the historically black institutions or attendjunior college with the hope
735of transferring to a historically white institution.9Proportionately more blacks than whites face this choice: In 1985,72 percent of Mississippi's white high school seniors achieved anACT composite score of 15 or better, while less than 30 percent ofblack high school seniors earned that score. App. 1524-1525. It isnot surprising then that Mississippi's universities remainpredominantly identifiable by race.The segregative effect of this automatic entrance standard isespecially striking in light of the differences in minimumautomatic entrance scores among the regional universities inMississippi's system. The minimum score for automatic admission toMississippi University for Women is 18; it is 13 for thehistorically black universities. Yet Mississippi University forWomen is assigned the same institutional mission as two otherregional universities, Alcorn State and Mississippi ValleyState-that of providing quality undergraduate education. Theeffects of the policy fall disproportionately on black students whomight wish to attend Mississippi University for Women; and thoughthe disparate impact is not as great, the same is true of theminimum standard ACT score of 15 at Delta State University-theother "regional" university-as compared to the historically black"regional" universities where a score of 13 suffices for automaticadmission. The courts below made little, if any, effort to justifyin educational terms those particular disparities in entrancerequirements or to inquire whether it was practicable to eliminatethem.9The District Court's finding that "[v]ery few black students,if any, are actually denied admission to a Mississippi universityas a first-time freshman for failure to achieve the minimal ACTscore,"
Ayers v.
Allain, 674 F. Supp. 1523, 1535 (NDMiss. 1987), ignores the inherent self-selection that accompaniespublic announcement of "automatic" admissions standards. It islogical to think that some percentage of black students who fail toscore 15 do
not seek admission to one of the historicallywhite universities because of this automatic admissionsstandard.
736We also find inadequately justified by the courts below or bythe record before us the differential admissions requirementsbetween universities with dissimilar programmatic missions. We donot suggest that absent a discriminatory purpose differentprogrammatic missions accompanied by different admissions standardswould be constitutionally suspect simply because one or moreschools are racially identifiable. But here the differentialadmissions standards are remnants of the dual system with acontinuing discriminatory effect, and the mission assignments "tosome degree follow the historical racial assignments," 914 F. 2d,at 692. Moreover, the District Court did not justify the differingadmissions standards based on the different mission assignments. Itobserved only that in the 1970's, the board of trustees justified aminimum ACT score of 15 because too many students with lower scoreswere not prepared for the historically white institutions and thatimposing the 15 score requirement on admissions to the historicallyblack institutions would decimate attendance at those universities.The District Court also stated that the mission of the regionaluniversities had the more modest function of providing qualityundergraduate education. Certainly the comprehensive universitiesare also, among other things, educating undergraduates. But wethink the 15 ACT test score for automatic admission to thecomprehensive universities, as compared with a score of 13 for theregionals, requires further justification in terms of soundeducational policy.Another constitutionally problematic aspect of the State's useof the ACT test scores is its policy of denying automatic admissionif an applicant fails to earn the minimum ACT score specified forthe particular institution, without also resorting to theapplicant's high school grades as an additional factor inpredicting college performance. The United States produced evidencethat the American College Testing Program (ACTP), the administeringorganization of the ACT, discourages use of ACT scores as the soleadmissions crite-
737rion on the ground that it gives an incomplete "picture" of thestudent 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 ofa student's high school grades as a means of predicting collegeperformance.
Id., at 193. The record also indicated that thedisparity between black and white students' high school gradeaverages was much narrower than the gap between their average ACTscores, thereby suggesting that an admissions formula whichincluded grades would increase the number of black studentseligible for automatic admission to all of Mississippi's publicuniversities.10The United States insists that the State's refusal to considerinformation which would better predict college performance than ACTscores alone is irrational in light of most States' use of highschool grades and other indicators along with standardized testscores. The District Court observed that the board of trustees wasconcerned with grade inflation and the lack of comparability ingrading practices and course offerings among the State's diversehigh schools. Both the District Court and the Court of Appealsfound this concern ample justification for the failure to considerhigh school grade performance along with ACT scores. In our view,such justification is inadequate because the ACT requirement wasoriginally adopted for discriminatory purposes, the10 In 1985, 72 percent of white students in Mississippi scored15 or better on the ACT test, whereas only 30 percent of blackstudents achieved that mark, a difference of nearly 21/2 times. Bycontrast, the disparity among grade averages was not nearly sowide. 43.8 percent of white high school students and 30.5 percentof black students averaged at least a 3.0, and 62.2 percent ofwhites and 49.2 percent of blacks earned at least a 2.5 grade pointaverage. App. 1524-1525. Though it failed to make specificfactfindings on this point, this evidence, which the State does notdispute, is fairly encompassed within the District Court'sstatement that "[b]lack students on the average score somewhatlower [than white students]." 674 F. Supp., at 1535.
738current requirement is traceable to that decision and seeminglycontinues to have segregative effects, and the State has so farfailed to show that the "ACT-only" admissions standard is notsusceptible to elimination without eroding sound educationalpolicy.A second aspect of the present system that necessitates furtherinquiry is the widespread duplication of programs. "Unnecessary"duplication refers, under the District Court's definition, "tothose instances where two or more institutions offer the samenonessential or noncore program. Under this definition, allduplication at the bachelor's level of nonbasic liberal arts andsciences course work and all duplication at the master's level andabove are considered to be unnecessary." 674 F. Supp., at 1540. TheDistrict Court found that 34.6 percent of the 29 undergraduateprograms at historically black institutions are "unnecessarilyduplicated" by the historically white universities, and that 90percent of the graduate programs at the historically blackinstitutions are unnecessarily duplicated at the historically whiteinstitutions.
Id., at 1541. In its conclusions of law onthis point, the District Court nevertheless determined that "thereis no proof" that such duplication "is directly associated with theracial identifiability of institutions," and that "there is noproof that the elimination of unnecessary program duplication wouldbe justifiable from an educational standpoint or that itselimination would have a substantial effect on student choice."
Id., at 1561.The District Court's treatment of this issue is problematic fromseveral different perspectives. First, the court appeared to imposethe burden of proof on the plaintiffs to meet a legal standard thecourt itself acknowledged was not yet formulated. It can hardly bedenied that such duplication was part and parcel of the prior dualsystem of higher education-the whole notion of "separate but equal"required duplicative programs in two sets of schools-and that thepresent unnecessary duplication is a continuation of thatpractice.
739Brown and its progeny, however, established that theburden of proof falls on the
State, and not the aggrievedplaintiffs, to establish that it has dismantled its prior
dejure segregated system.
Brown II, 349 U. S., at 300. Thecourt's holding that petitioners could not establish theconstitutional defect of unnecessary duplication, therefore,improperly shifted the burden away from the State. Second, implicitin the District Court's finding of "unnecessary" duplication is theabsence of any educational justification and the fact that some, ifnot all, duplication may be practicably eliminated. Indeed, theDistrict Court observed that such duplication "cannot be justifiedeconomically or in terms of providing quality education." 674 F.Supp., at 1541. Yet by stating that "there is no proof" thatelimination of unnecessary duplication would decrease institutionalracial identifiability, affect student choice, and promoteeducationally sound policies, the court did not make clear whetherit 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 toconsider the combined effects of unnecessary program duplicationwith other policies, such as differential admissions standards, inevaluating whether the State had met its duty to dismantle itsprior
de jure segregated system.We next address Mississippi's scheme of institutional missionclassification, 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 ofMississippi, Mississippi State University, and University ofSouthern Mississippi were the flagship institutions in the statesystem. They received the most funds, initiated the most advancedand specialized programs, and developed the widest range ofcurricular functions. At their inception, each was restricted forthe education solely of white persons.
Id., at 1526-1528.The missions of Mississippi University for Women and Delta StateUniversity, by contrast, were more
740limited than their other all-white counterparts during theperiod of legalized segregation. Mississippi University for Womenand Delta State University were each established to provideundergraduate education solely for white students in the liberalarts and such other fields as music, art, education, and homeeconomics.
Id., at 1527-1528. When they were founded, thethree exclusively black universities were more limited in theirassigned academic missions than the five all-white institutions.Alcorn State, for example, was designated to serve as "anagricultural college for the education of Mississippi's blackyouth."
Id., at 1527. Jackson State and Mississippi ValleyState were established to train black teachers.
Id., at1528. Though the District Court's findings do not make this pointexplicit, it is reasonable to infer that state funding andcurriculum decisions throughout the period of
de juresegregation were based on the purposes for which these institutionswere established.In 1981, the State assigned certain missions to Mississippi'spublic universities as they then existed. It classified Universityof Mississippi, Mississippi State, and Southern Mississippi as"comprehensive" universities having the most varied programs andoffering graduate degrees. Two of the historically whiteinstitutions, Delta State University and Mississippi University forWomen, along with two of the historically black institutions,Alcorn State University and Mississippi Valley State University,were designated as "regional" universities with more limitedprograms and devoted primarily to undergraduate education. JacksonState University was classified as an "urban" university whosemission was defined by its urban location.The institutional mission designations adopted in 1981 have astheir antecedents the policies enacted to perpetuate racialseparation during the
de jure segregated regime. The Courtof Appeals expressly disagreed with the District Court byrecognizing that the "inequalities among the institutions largelyfollow the mission designations, and the mis-
741sion designations to some degree follow the historical racialassignments." 914 F. 2d, at 692. It nevertheless upheld this facetof the system as constitutionally acceptable based on the existenceof good-faith racially neutral policies and procedures. Thatdifferent missions are assigned to the universities surely limitsto some extent an entering student's choice as to which universityto seek admittance. While the courts below both agreed that theclassification and mission assignments were made withoutdiscriminatory purpose, the Court of Appeals found that the record"supports the plaintiffs' argument that the mission designationshad the effect of maintaining the more limited program scope at thehistorically black universities."
Id., at 690. We do notsuggest that absent discriminatory purpose the assignment ofdifferent missions to various institutions in a State's highereducation system would raise an equal protection issue where one ormore of the institutions become or remain predominantly black orwhite. But here the issue is whether the State has sufficientlydismantled its prior dual system; and when combined with thedifferential admission practices and unnecessary programduplication, it is likely that the mission designations interferewith student choice and tend to perpetuate the segregated system.On remand, the court should inquire whether it would be practicableand consistent with sound educational practices to eliminate anysuch discriminatory effects of the State's present policy ofmission assignments.Fourth, the State attempted to bring itself into compliance withthe Constitution by continuing to maintain and operate all eighthigher educational institutions. The existence of eight instead ofsome lesser number was undoubtedly occasioned by state lawsforbidding the mingling of the races. And as the District Courtrecognized, continuing to maintain all eight universities inMississippi is wasteful and irrational. The District Court pointedespecially to the facts that Delta State and Mississippi ValleyState are only 35 miles apart
742and that only 20 miles separate Mississippi State andMississippi University for Women. 674 F. Supp., at 1563-1564. Itwas evident to the District Court that "the defendants undertake tofund more institutions of higher learning than are justified by theamount of financial resources available to the state,"
id.,at 1564, but the court concluded that such fiscal irresponsibilitywas a policy choice of the legislature rather than a feature of asystem subject to constitutional scrutiny.Unquestionably, a larger rather than a smaller number ofinstitutions from which to choose in itself makes for differentchoices, particularly when examined in the light of other factorspresent in the operation of the system, such as admissions, programduplication, and institutional mission designations. Thoughcertainly closure of one or more institutions would decrease thediscriminatory 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 unableto say whether such action is constitutionally required.llElimination of program duplication and revision of admissionscriteria may make institutional closure unnecessary. However, onremand this issue should be carefully explored by inquiring anddetermining whether retention of all eight institutions itselfaffects student choice and perpetuates the segregated highereducation system, whether maintenance of each of the universitiesis educationally justifiable, and whether one or more of them canbe practicably closed or merged with other existinginstitutions.Because the former
de jure segregated system of publicuniversities in Mississippi impeded the free choice of pro-11 It should be noted that in correspondence with the board oftrustees in 1973, an HEW official expressed the "overall objective"of the Plan to be "that a student's choice of institution orcampus, henceforth, will be based on other than racial criteria."App. 205. The letter added that closure of a formerly
dejure black institution "would create a presumption that agreater burden is being placed upon the black students and facultyin Mississippi."
Id., at 206.
743spective students, the State in dismantling that system musttake the necessary steps to ensure that this choice now is trulyfree. The full range of policies and practices must be examinedwith this duty in mind. That an institution is predominantly whiteor black does not in itself make out a constitutional violation.But surely the State may not leave in place policies rooted in itsprior officially segregated system that serve to maintain theracial identifiability of its universities if those policies canpracticably be eliminated without eroding sound educationalpolicies.If we understand private petitioners to press us to order theupgrading of Jackson State, Alcorn State, and Mississippi ValleyState
solely so that they may be publicly financed,exclusively black enclaves by private choice, we reject thatrequest. The State provides these facilities for
all itscitizens and it has not met its burden under
Brown to takeaffirmative steps to dismantle its prior
de jure system whenit perpetuates a separate, but "more equal" one. Whether such anincrease in funding is necessary to achieve a full dismantlementunder the standards we have outlined, however, is a differentquestion, and one that must be addressed on remand.Because the District Court and the Court of Appeals failed toconsider the State's duties in their proper light, the cases mustbe remanded. To the extent that the State has not met itsaffirmative obligation to dismantle its prior dual system, it shallbe adjudged in violation of the Constitution and Title VI andremedial proceedings shall be conducted. The decision of the Courtof Appeals is vacated, and the cases are remanded for furtherproceedings consistent with this opinion.It is so ordered.JUSTICE O'CONNOR, concurring.I join the opinion of the Court, which requires publicuniversities, like public elementary and secondary schools, to
744affirmatively dismantle their prior
de jure segregationin order to create an environment free of racial discrimination andto make aggrieved individuals whole. See
Brown v.
Boardof Education,349U. S. 294, 299 (1955);
Milliken v.
Bradley,418 U. S. 717,746 (1974). I write separately to emphasize that it isMississippi's burden to prove that it has undone its priorsegregation, and that the circumstances in which a State maymaintain a policy or practice traceable to
de juresegregation that has segregative effects are narrow. In light ofthe State's long history of discrimination, and the losteducational and career opportunities and stigmatic harms caused bydiscriminatory educational systems, see
Brown v.
Board ofEducation,347 U.S. 483, 494 (1954);
Sweatt v.
Painter,339 U. S. 629, 634-635(1950);
McLaurin v.
Oklahoma State Regents for HigherEd.,339 U. S.637, 640-641 (1950), the courts below must carefully examineMississippi's proffered justifications for maintaining a remnant of
de jure segregation to ensure that such rationales do notmerely mask the perpetuation of discriminatory practices. Where theState can accomplish legitimate educational objectives through lesssegregative means, the courts may infer lack of good faith; "at theleast it places a heavy burden upon the [State] to explain itspreference for an apparently less effective method."
Greenv.
School Bd. of New Kent County,391 U. S. 430, 439(1968). In my view, it also follows from the State's obligation toprove that it has "take[n] all steps" to eliminate policies andpractices traceable to
de jure segregation,
Freemanv.
Pitts,503U. S. 467, 485 (1992), that if the State shows that maintenanceof certain remnants of its prior system is essential to accomplishits legitimate goals, then it still must prove that it hascounteracted and minimized the segregative impact of such policiesto the extent possible. Only by eliminating a remnant thatunnecessarily continues to foster segregation or by negatinginsofar as possible its segregative impact can the State satisfyits
745constitutional obligation to dismantle the discriminatory systemthat should, by now, be only a distant memory.JUSTICE THOMAS, concurring."We must rally to the defense of our schools. We must repudiatethis unbearable assumption of the right to kill institutions unlessthey conform to one narrow standard." Du Bois, Schools, 13 TheCrisis 111, 112 (1917).I agree with the Court that a State does not satisfy itsobligation to dismantle a dual system of higher education merely byadopting race-neutral policies for the future administration ofthat system. Today, we hold that "[i]f policies traceable to the
de jure system are still in force and have discriminatoryeffects, those policies too must be reformed to the extentpracticable and consistent with sound educational practices."
Ante, at 729. I agree that this statement defines theappropriate standard to apply in the higher education context. Iwrite separately to emphasize that this standard is far differentfrom the one adopted to govern the grade-school context in
Green v.
School Bd. of New Kent County,391 U. S. 430 (1968), andits progeny. In particular, because it does not compel theelimination of all observed racial imbalance, it portends neitherthe destruction of historically black colleges nor the severing ofthose institutions from their distinctive histories andtraditions.In
Green, we held that the adoption of afreedom-of-choice plan does not satisfy the obligations of aformerly
de jure grade-school system should the plan fail todecrease, if not eliminate, the racial imbalance within thatsystem. See
id., at 441. Although racial imbalance does notitself establish a violation of the Constitution, our decisionsfollowing
Green indulged the presumption, often irrebuttablein practice, that a presently observed imbalance has beenproximately caused by intentional state action during the prior
de jure era. See,
e.g.,Dayton Bd. ofEd. v.
Brinkman,443 U. S. 526, 537
(1979); Keyes v.
School Dist. No.1, Denver,413 U. S. 189,
746211 (1973). As a result, we have repeatedly authorized thedistrict courts to reassign students, despite the operation offacially neutral assignment policies, in order to eliminate ordecrease 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 governthe higher education context. We explicitly reject the use ofremedies 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 focuson the specific
policies alleged to produce racialimbalance, rather than on the
imbalance itself. Thus, aplaintiff cannot obtain relief merely by identifying a persistentracial imbalance, because the district court cannot provide areassignment remedy designed to eliminate that imbalance directly.Plaintiffs are likely to be able to identify, as these plaintiffshave identified, specific policies traceable to the
de jureera that continue to produce a current racial imbalance. As apractical matter, then, the district courts administering ourstandard will spend their time determining whether such policieshave been adequately justifieda far narrower, more manageable taskthan that imposed under
Green.A challenged policy does not survive under the standard weannounce today if it began during the prior
de jure era,produces adverse impacts, and persists without sound educationaljustification. When each of these elements has been met, I believe,we are justified in not requiring proof of a present specificintent to discriminate. It is safe to assume that a policy adoptedduring 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 initiallytainted policy, it is eminently reasonable to make the State bearthe risk of nonpersuasion with respect to intent at some futuretime, both be-
747cause the State has created the dispute through its own priorunlawful conduct, see,
e. g., Keyes, supra, at 209-210, andbecause 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 notformulate our standard in terms of a burden shift with respect tointent, the factors we do consider-the historical background of thepolicy, the degree of its adverse impact, and the plausibility ofany justification asserted in its defense-are precisely thosefactors 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 adequatejustification and despite tainted roots and segregative effect, itappears clear-clear enough to presume conclusively-that the Statehas failed to disprove discriminatory intent.We have no occasion to elaborate upon what constitutes anadequate justification. Under
Green, we have recognized thatan otherwise unconstitutional policy may be justified if it serves"important and legitimate ends,"
Dayton, supra, at 538, orif its elimination is not "practicable,"
Board of Ed. ofOklahoma 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 (emphasisadded); see also,
e. g., ante, at 731 ("sound educationaljustification");
ante, at 736 ("sound educational policy").From the beginning, we have recognized that desegregation remediescannot be designed to ensure the elimination of any remnant at anyprice, but rather must display "a practical flexibility" and "afacility 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 isthe
educational need of the present and
748future
students in the Mississippi university system, forwhose benefit the remedies will be crafted.In particular, we do not foreclose the possibility that thereexists "sound educational justification" for maintaininghistorically black colleges
as such. Despite the shamefulhistory of state-enforced segregation, these institutions havesurvived and flourished. Indeed, they have expanded asopportunities for blacks to enter historically white institutionshave expanded. Between 1954 and 1980, for example, enrollment athistorically black colleges increased from 70,000 to 200,000students, while degrees awarded increased from 13,000 to 32,000.See S. Hill, National Center for Education Statistics, TheTraditionally Black Institutions of Higher Education 1860 to 1982,pp. xiv-xv (1985). These accomplishments have not goneunnoticed:
"The colleges founded for Negroes are both a source of pride toblacks who have attended them and a source of hope to blackfamilies who want the benefits of higher learning for theirchildren. They have exercised leadership in developing educationalopportunities for young blacks at all levels of instruction, and,especially in the South, they are still regarded as keyinstitutions for enhancing the general quality of the lives ofblack Americans." Carnegie Commission on Higher Education, FromIsolation to Mainstream: Problems of the Colleges Founded forNegroes 11 (1971).
I think it undisputable that these institutions have succeededin part because of their distinctive histories and traditions; formany, historically black colleges have become "a symbol of thehighest attainments of black culture." J. Preer, Lawyers v.Educators: Black Colleges and Desegregation in Public HigherEducation 2 (1982). Obviously, a State cannot maintain suchtraditions by closing particular institutions, historically whiteor historically black, to particular racial groups. Nonetheless, ithardly follows that a
749State cannot operate a diverse assortment ofinstitutionsincluding historically black institutions-open to allon a race-neutral basis, but with established traditions andprograms that might disproportionately appeal to one race oranother. No one, I imagine, would argue that such institutional
diversity is without "sound educational justification," orthat it is even remotely akin to program
duplication, whichis designed to separate the races for the sake of separating theraces. The Court at least hints at the importance of this valuewhen it distinguishes
Green in part on the ground thatcolleges and universities "are not fungible."
Ante, at 729.Although I agree that a State is not constitutionally
required to maintain its historically black institutions assuch, see
ante, at 743, I do not understand our opinion tohold that a State is
forbidden to do so. It would be ironic,to say the least, if the institutions that sustained blacks duringsegregation were themselves destroyed in an effort to combat itsvestiges.JUSTICE SCALIA, concurring in the judgment in part anddissenting in part.With some of what the Court says today, I agree. I agree, ofcourse, that the Constitution compels Mississippi to remove alldiscriminatory 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 compelMississippi to remedy funding disparities between its historicallyblack institutions (HBI's) and historically white institutions(HWI's). And I agree that Mississippi's American College TestingProgram (ACT) requirements need further review. I reject, however,the effectively unsustainable burden the Court imposes onMississippi, and all States that formerly operated segregateduniversities, to demonstrate compliance with
Brown 1. Thatrequirement, which resembles what we prescribed for primary andsecondary schools in
Green v.
School Bd. of New KentCounty, 391 U. S. 430
750Opinion of SCALIA, J.(1968), has no proper application in the context of highereducation, provides no genuine guidance to States and lower courts,and is as likely to subvert as to promote the interests of thosecitizens on whose behalf the present suit was brought.IBefore evaluating the Court's handiwork, it is no small tasksimply to comprehend it. The Court sets forth not one, butseemingly 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 ofits opinion: All policies (i) "traceable to [the State's] prior
[de jure] system" (ii) "that continue to have segregativeeffects-whether by influencing student enrollment decisions or byfostering 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 ofthe opinion, "influencing student enrollment decisions" is notmerely one example of a "segregative effec[t]," but is elevated toan independent and essential requirement of its own. The policiesthat must be eliminated are those that (i) are legacies of the dualsystem, (ii) "contribute to the racial identifiability" of theState's universities (the same as (i) and (ii) in Part II!), and,in addition, (iii) do so in a way that
"substantiallyrestrict[s] a person's choice of which institution to enter."Ante, at 733 (emphasis added). See also
ante, at734-735, 738-739, 741-743.What the Court means by "substantially restrict[ing] a person'schoice of which institution to enter" is not clear. During thecourse of the discussion in Part IV the requirement changes fromone of strong coercion ("substantially restrict,"
ante, at733, "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). Ifwords have any
751meaning, in this last stage of decrepitude the requirement is sofrail that almost anything will overcome it. Even anopen-admissions policy would fall short of ensuring that studentchoice is
unaffected by state action. The Court's resultsalso suggest that the "restricting choice" requirement istoothless. Nothing else would explain how it could be met byMississippi's mission designations, program duplication, andoperation of all eight formerly
de jure colleges. Only atest aimed at state action that "affects" student choice couldimplicate policies such as these, which in no way
restrictthe decision where to attend college. (Indeed, program duplicationand continuation of the eight schools have quite the oppositeeffect; they
multiply, rather than restrict, limit, orimpede the available choices.) At the end of the day, then, theCourt dilutes this potentially useful concept to the point of suchinsignificance that it adds nothing to the Court's test exceptconfusion. It will be a fertile source of litigation.Almost as inscrutable in its operation as the "restrictingchoice" requirement is the requirement that challenged statepractices 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 designatingthree colleges of the same prior disposition (HWI's) as the
only comprehensive schools, Mississippi encouragedintegration; and that the suggested alternative of elevating an HBIto comprehensive status (so that blacks could go there instead ofto the HWI's) would have been an invitation to continuingsegregation. See
Ayers v.
Allain, 674 F. Supp. 1523,1562 (ND Miss. 1987) ("Approximately 30% of all black collegestudents attending four-year colleges in the state attend one ofthe comprehensive universities"). It appears, moreover, that evenif a particular practice does not, in isolation, rise to theminimal level of fostering segregation, it can be aggregated withother ones, and the
composite condemned. See
ante, at739-740 ("by treating [the] issue [of program duplication] inisolation, the [district] court failed to consider the combinedeffects of unnecessary program duplication
752Opinion of SCALIA, J.with other policies, such as differential admissionsstandards");
ante, at 741 ("[W]hen combined with thedifferential admission practices and unnecessary programduplication, it is likely that the mission designations ... tend toperpetuate the segregated system"). It is interesting to speculatehow university administrators are going to guess which practices adistrict judge will choose to aggregate; or how district judges aregoing to guess when disaggregation is lawful.The Court appears to suggest that a practice that has beenaggregated and condemned may be disaggregated and approved so longas it does not
itself "perpetuat[e] the segregated highereducation system,"
ante, at 742-which seems, of course, tonegate the whole purpose of aggregating in the first place. TheCourt says:
"Elimination of program duplication and revision of admissionscriteria may make institutional closure unnecessary .... [O]nremand this issue should be carefully explored by inquiring anddetermining whether retention of all eight institutions itself ...perpetuates the segregated higher education system, whethermaintenance of each of the universities is educationallyjustifiable, and whether one or more of them can be practicablyclosed or merged with other existing institutions."Ibid.
Perhaps the Court means, however, that even if retention of alleight institutions is found by itself
not to "perpetuat[e]the segregated higher education system," it must
still befound that such retention is "educationally justifiable," or thatnone of the institutions can be "practicably closed or merged." Itis unclear.Besides the ambiguities inherent in the "restricting choice"requirement and the requirement that the challenged state practiceor practices perpetuate segregation, I am not sanguine that therewill be comprehensible content to the to-be-defined-Iater (and,make no mistake about it, outcome-
753determinative) notions of "sound educational justification" and"impracticable elimination." In short, except for the results thatit produces in the present litigation (which are what they arebecause the Court says so), I have not the slightest idea how toapply the Court's analysis-and I doubt whether anyone elsewill.Whether one consults the Court's description of what it purportsto be doing, in Part III,
ante, at 727-732, or what theCourt actually does, in Part IV,
ante, at 732-743, one mustconclude that the Court is essentially applying to universities theamorphous 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 theordinarily unsustainable burden of proving the negative propositionthat
it is not responsible for extant racial disparity inenrollment. See
ante, at
728. Green requires schoolboards to prove that racially identifiable schools are
notthe 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 provethat racially identifiable schools are
not the consequenceof any practice or practices (in such impromptu "aggregation" asmight strike the fancy of a district judge) held over from theprior
de jure regime. This will imperil virtually anypractice or program plaintiffs decide to challenge-just as
Green has-so long as racial imbalance remains. And just asunder
Green, so also under today's decision, the onlypracticable way of disproving that "existing racial identifiabilityis attributable to the State,"
ante, at 728,
is toeliminate extant segregation, i.
e., to assure racialproportionality in the schools. Failing that, the State's onlydefense will be to establish an excuse for each challengedpractice-either impracticability of elimination, which is also atheoretical excuse under the
Green regime, see
Board ofEd. of Oklahoma City Public Schools v.
Dowell,498 U. S. 237, 249-250(1991),
754Opinion of SCALIA, J.or sound educational value, which (presumably) is not muchdifferent from the "important and legitimate ends" excuse availableunder
Green, see
Dayton Bd. of Ed. v.
Brinkman,443U. S. 526, 538 (1979).IIApplication of the standard (or standards) announced today hasno justification in precedent, and in fact runs contrary to a casedecided six years ago, see
Bazemore v.
Friday,478 U. S. 385(1986). The Court relies primarily upon citations of
Greenand other primary and secondary school cases. But those decisionsleft open the question whether
Green merits application inthe distinct context of higher education. Beyond that, the Courtrelies on
BrownI,Florida ex rel. Hawkins v.
Board of Control of Fla.,350 U. S. 413(1956)(per curiam), and
Gilmore v.
City ofMontgomery,417U. S. 556 (1974). That reliance also is mistaken.The constitutional evil of the "separate but equal" regime thatwe confronted in
Brown I was that blacks were told to go toone set of schools, whites to another. See
Plessy v.
Ferguson,163U. S. 537 (1896). What made this "evenhanded" racialpartitioning offensive to equal protection was its implicitstigmatization of minority students: "To separate [black students]from others of similar age and qualifications solely because oftheir race generates a feeling of inferiority as to their status inthe community that may affect their hearts and minds in a wayunlikely ever to be undone."
BrownI, 347 U. S., at494. In the context of higher education, a context in whichstudents decide whether to attend school and if so where, the onlyunconstitutional derivations of that bygone system are those thatlimit access on discriminatory bases; for only they have thepotential to generate the harm
Brown I condemned, and onlythey have the potential to deny students equal access to the bestpublic education a State has to offer. Legacies of the dual systemthat permit (or even incidentally facilitate) free choice ofracially
755identifiable schools-while still assuring each individualstudent the right to attend
whatever school he wishes-do nothave these consequences.Our decisions immediately following
Brown I also fail tosustain the Court's approach. They, too, suggest that former
dejure States have one duty: to eliminate discriminatoryobstacles to admission.
Brown v.
Board of Education,349 U. S. 294(1955)
(Brown II), requires States "to achieve a system ofdetermining 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 Courthas done.
Hawkins involved a segregated graduate school, tobe sure. But our one-paragraph
per curiam opinion supportsnothing more than what I have said: The duty to dismantle means theduty to establish nondiscriminatory admissions criteria. See 350 U.S., at 414 ("He is entitled to prompt admission under the rules andregulations applicable to other qualified candidates").Establishment of neutral admissions standards, not the eradicationof all "policies traceable to the
de jure system ...hav[ing] discriminatory effects,"
ante, at 729, is what
Hawkins is about. Finally,
Gilmore, quite simply, isinapposite. All that we did there was uphold an order enjoining acity from granting exclusive access to its parks and recreationalfacilities to segregated private schools and to groups affiliatedwith such schools. 417 U. S., at 569. Notably, in the one case thatdoes bear proximately on today's decision,
Bazemore, supra,we declined to apply
Gilmore. See
Bazemore, supra, at408 (WHITE, J., concurring) ("Our cases requiring parks and thelike to be desegregated lend no support for requiring more thanwhat has been done in this case").If we are looking to precedent to guide us in the context ofhigher education, we need not go back 38 years to
Brown I,read between the lines of
Hawkins, or conjure authority
756Opinion of SCALIA, J.
(Gilmore) that does not exist. In
Bazemore v.
Friday, supra, we addressed a dispute parallel in allrelevant respects to this one. At issue there was state financingof 4-H and Homemaker youth clubs by the North Carolina AgriculturalExtension Service, a division of North Carolina State University.In the
Plessy era, club affiliations had been dictated byrace; after 1964, they were governed by neutral criteria. Yet"there were a great many all-white and allblack clubs" at the timesuit was filed. 478 U. S., at 407. We nonetheless declined to adopt
Green's requirement that "affirmative action [be taken] tointegrate" once segregatedby-law/still segregated-in-fact stateinstitutions. 478 U. S., at 408. We confined
Green toprimary and secondary public schools, where "schoolchildren must goto school" and where "school boards customarily have the power tocreate school attendance areas and otherwise designate the schoolthat particular students may attend." 478 U. S, at 408. "[T]hiscase," we said, "presents no current violation of the FourteenthAmendment since the Service has discontinued its priordiscriminatory practices and has adopted a wholly neutraladmissions policy. The mere continued existence of single-raceclubs 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 hadnot fostered segregation by playing a part in the decision of whichclub an individual chose to join,"
ante, at 731-implyingthat we assured ourselves there, as the Court insists we must dohere, that none of the State's practices carried over from
dejure days incidentally played a part in the decision of whichclub an individual chose to join. We did no such thing. An accuratedescription 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 tointegrate," we said
Bazemore held, "in absence of
evidence of exclusion by race," 488 U. S., at 503 (emphasisad de d)-
757not "in absence of evidence of state action playing apart in the decision of which club an individual chose to join."The only thing we "satisfied ourselves" about in
Bazemorewas that the club members' choices were "wholly voluntary andunfettered," 478 U. S., at 407-which does not mean the State"play[ed] [no] part in the decision of which club an individualchose to join," however much the Court may mush the conceptstogether today. It is, on the face of things, entirely unbelievablethat the previously established characteristics of the variousall-white and all-black 4-H Clubs (where each of them met, forexample) did not even playa part in young people's decisions ofwhich club to join.
Bazemore's standard for dismantling a dual system oughtto control here: discontinuation of discriminatory practices andadoption of a neutral admissions policy. To use
Greennomenclature, modern racial imbalance remains a "vestige" of pastsegregative practices in Mississippi's universities, in that thepreviously mandated racial identification continues to affect wherestudents choose to enroll-just as it surely affected which clubsstudents chose to join in
Bazemore. We tolerated thisvestigial effect in
Bazemore, squarely rejecting the viewthat the State was obliged to correct "the racial segregationresulting from [its prior] practice[s]." 478 U. S., at 417(Brennan, J., dissenting in part). And we declined to require theState, as the Court has today, to prove that no holdover practicesof the
de jure system,
e.g., programofferings in the different clubs, played a role in the students'decisions of which clubs to join. If that analysis was correct sixyears ago in
Bazemore, and I think it was, it must governhere as well. Like the club attendance in
Bazemore (andunlike the school attendance in
Green), attending college isvoluntary, not a legal obligation, and which institution particularstudents attend is determined by their own choice, not by "schoolboards [who] customarily have the power to create school attendanceareas and otherwise designate the school that particular studentsmay attend."
Baze-
758Opinion of SCALIA, J.
more, supra, at 408. Indeed,
Bazemore was a moreappealing case than these for adhering to the
Greenapproach, since the 4-H Clubs served students similar in age tothose in
Green, and had been "organized in the publicschools" 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 byelimination of nonintegrated options, as the Court todayeffectively decrees) does not apply to higher education. Only oneaspect of a historically segregated university system need beeliminated: discriminatory admissions standards. The burden is uponthe formerly
de jure system to show that that has beenachieved. Once that has been done, however, it is not justunprecedented, but illogical as well, to establish that former
de jure States continue to deny equal protection of the lawto students whose choices among public university offerings areunimpeded by discriminatory barriers. Unless one takes the positionthat
Brown I required States not only to provide equalaccess to their universities but also to correct lingeringdisparities between them, that is, to remedy institutionalnoncompliance with the "equal" requirement of
Plessy, aState is in compliance with
BrownI once itestablishes that it has dismantled all discriminatory barriers toits public universities. Having done that, a State is free togovern its public institutions of higher learning as it will,unless it is convicted of discriminating anew-which requires bothdiscriminatory intent and discriminatory causation. See
Washington v.
Davis,426 U. S. 229 (1976).That analysis brings me to agree with the judgment that theCourt of Appeals must be reversed in part-for the reason (quitedifferent from the Court's) that Mississippi has not borne theburden of demonstrating that intentionally discriminatoryadmissions standards have been eliminated. It has been establishedthat Mississippi originally adopted ACT assessments as anadmissions criterion because that was an effective means ofexcluding blacks from the HWI's. See
759Ayers v.
Allain, 674 F. Supp., at 1555;
Ayers v.
Allain,914 F.2d676, 690 (CA5 1990) (en bane). Given that finding, the DistrictCourt should have required Mississippi to prove that its continueduse of ACT requirements does not have a racially exclusionarypurpose and effect-a not insubstantial task, see
Freeman v.
Pitts,503 U.S. 467, 503 (SCALIA, J., concurring).IIII must add a few words about the unanticipated consequences oftoday's decision. Among petitioners' contentions is the claim thatthe Constitution requires Mississippi to correct fundingdisparities between its HBI's and HWI's. The Court rejects that,see
ante, at 743-as I think it should, since it is studentsand 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
requireequal funding is not to say that the Constitution
prohibitsit. The citizens of a State may conclude that if certain of theirpublic educational institutions are used predominantly by whitesand others predominantly by blacks, it is desirable to fund thoseinstitutions more or less equally.Ironically enough, however, today's decision seems to preventadoption of such a conscious policy. What the Court says aboutduplicate 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 programduplication, facilitates continued segregation-enabling students toattend schools where their own race predominates without paying apenalty in the quality of education. Nor could such anequal-funding policy be saved on the basis that it serves what theCourt calls a "sound educational justification." The onlyconceivable
educational value it furthers is that offostering schools in which blacks receive their education in a"majority" setting; but to acknowledge that as a "value" wouldcontradict the compulsory-integration philo so-
760Opinion of SCALIA, J.phy that underlies
Green. Just as vulnerable, of course,would be all other programs that have the effect of facilitatingthe continued existence of predominantly black institutions:elevating an HBI to comprehensive status (but see
ante, at740-741, where the Court inexplicably suggests that this action maybe required); offering a so-called Afrocentric curriculum, as hasbeen done recently on an experimental basis in some secondary andprimary schools, see Jarvis,
Brown and the AfrocentricCurriculum, 101 Yale L. J. 1285, 1287, and n. 12 (1992); preservingeight separate universities, see
ante, at 741-742, which isperhaps Mississippi's single policy most segregative in effect; orproviding 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 nosurprise: for incidentally facilitating-indeed, even tolerating-thecontinued 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 newplan and ... fashion steps which promise realistically to convertpromptly to a system without a 'white' school and a 'Negro'school") (footnote omitted). What the Court's test is designed toachieve is the elimination of predominantly black institutions.While that may be good social policy, the present petitioners, Isuspect, would not agree; and there is much to be said for theCourt of Appeals' perception in
Ayers, 914 F. 2d, at 687,that "if no [state] authority exists to deny [the student] theright to attend the institution of his choice, he is done a severedisservice by remedies which, in seeking to maximize integration,minimize diversity and vitiate his choices." But whether or not theCourt's antagonism to unintegrated schooling is good policy, it isassuredly not good constitutional law. There is nothingunconstitutional about a "black" school in the sense, not of aschool that blacks
must attend and that whites
cannot, but of a school that, as a consequence of privatechoice
761in residence or in school selection, contains, and has longcontained, 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 notappear to mean it, see
ante, at 730, n. 4.) In a perverseway, in fact, the insistence, whether explicit or implicit, thatsuch institutions not be permitted to endure perpetuates the verystigma of black inferiority that
Brown I sought to destroy.Not only Mississippi, but Congress itself, seems out of step withthe drum that the Court beats today, judging by its passage of anAct entitled "Strengthening Historically Black Colleges andUniversities," which authorizes the Education Department to providemoney grants to historically black colleges. 20 U. S. C. §§1060-1063c. The implementing regulations designate Alcorn StateUniversity, Jackson State University, and Mississippi Valley StateUniversity as eligible recipients. See 34 CFR § 608.2(b)(1991).***The Court was asked to decide today whether, in the provision ofuniversity education, a State satisfies its duty under
BrownI by removing discriminatory barriers to admissions. Thatquestion required us to choose between the standards established in
Green and
Bazemore, both of which involved (as, forthe most part, this does) free-choice plans that failed to end
de facto segregation. Once the confusion engendered by theCourt's something-for-all, guidance-to-none opinion has beendissipated, 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 succeedin producing the same result as
Green-viz., compelling theStates to compel racial "balance" in their schools-because ofseveral practical imperfections: because the Court deprivesdistrict judges of the most efficient (and perhaps
762Opinion of SCALIA, J.the only effective)
Green remedy, mandatory studentassignment, see
ante, at 730, n. 4; because somecontradictory 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 thevirtually standardless discretion conferred upon district judges(see Part I,
supra) will permit them to do pretty much whatthey please. What I do predict is a number of years oflitigation-driven confusion and destabilization in the universitysystems of all the formerly
de jure States, that willbenefit neither blacks nor whites, neither predominantly blackinstitutions nor predominantly white ones. Nothing good will comeof this judicially ordained turmoil, except the public recognitionthat any court that would knowingly impose it must hatesegregation. We must find some other way of making that point.
