 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

UNITED STATES v. FORDICE, GOVERNOR OF MIS-
                                  SISSIPPI, et al.
certiorari to the united states court of appeals for
           the fifth circuit
No. 90-1205.   Argued November 13, 1991"Decided June 26, 1992

Despite this Court's decisions in Brown v. Board of Education (Brown
I), 347 U.S. 483, and Brown v. Board of Education (Brown II), 349
U.S. 294, Mississippi continued its policy of de jure segregation in
its public university system, maintaining five almost completely white
and three almost exclusively black universities.  Private petitioners
initiated this lawsuit in 1975, and the United States intervened,
charging that state officials had failed to satisfy their obligation
under, inter alia, the Equal Protection Clause of the Fourteenth
Amendment and Title VI of the Civil Rights Act of 1964 to dismantle
the dual system.  In an attempt to reach a consensual resolution
through voluntary dismantlement, the State Board of Trustees, in
1981, issued ``Mission Statements'' classifying the three flagship white
institutions during the de jure period as ``comprehensive'' universities
having the most varied programs and offering doctoral degrees,
redesignating one of the black colleges as an ``urban'' university with
limited research and degree functions geared toward its urban
setting, and characterizing the rest of the colleges as ``regional''
institutions which functioned primarily in an undergraduate role.
When, by the mid-1980's, the student bodies at the white universities
were still predominantly white, and the racial composition at the
black institutions remained largely black, the suit proceeded to trial.
After voluminous evidence was presented on a full range of educa-
tional issues, the District Court entered extensive findings of fact on,
among other things, admissions requirements, institutional classifica-
tion and missions assignments, duplication of programs, and funding.
Its conclusions of law included rulings that, based on its interpreta-
tion of Bazemore v. Friday, 478 U.S. 385, and other cases, the
affirmative duty to desegregate in the higher education context does
not contemplate either restricting student choice or the achievement
of any degree of racial balance; that current state policies and
practices should be examined to ensure that they are racially neutral,
developed and implemented in good faith, and do not substantially
contribute to the racial identifiability of individual institutions; and
that Mississippi's current actions demonstrate conclusively that the
State is fulfilling its affirmative duty to disestablish the former
de jure segregated system.  In affirming, the Court of Appeals left
largely undisturbed the lower court's findings and conclusions.
Held:
1.The courts below did not apply the correct legal standard in
ruling that Mississippi has brought itself into compliance with the
Equal Protection Clause.  If the State perpetuates policies and
practices traceable to its prior de jure dual system that continue to
have segregative effects"whether by influencing student enrollment
decisions or by fostering segregation in other facets of the university
system"and such policies are without sound educational justification
and can be practicably eliminated, the policies violate the Clause,
even though the State has abolished the legal requirement that the
races be educated separately and has established racially neutral
policies not animated by a discriminatory purpose.  Bazemore v.
Friday, supra, distinguished.  The proper inquiry asks whether
existing racial identifiability is attributable to the State, see, e. g.,
Freeman v. Pitts, 503 U.S. ___, and examines a wide range of
factors to determine whether the State has perpetuated its former
segregation in any facet of its system, see, e. g., Board of Education
of Oklahoma City v. Dowell, 498 U.S. ___, ___.  Because the District
Court's standard did not ask the appropriate questions, the Court of
Appeals erred in affirming the lower court's judgment.  Pp.8-13.
2.When the correct legal standard is applied, it becomes apparent
from the District Court's undisturbed factual findings that there are
several surviving aspects of Mississippi's prior dual system which are
constitutionally suspect; for even though such policies may be race-
neutral on their face, they substantially restrict a person's choice of
which institution to enter and they contribute to the racial identifi-
ability of the eight public universities.  Mississippi must justify these
policies, as well as any others that are susceptible to challenge by
petitioners on remand under the proper standard, or eliminate them.
Pp.13-14.
(a)Although the State's current admissions policy requiring
higher minimum composite scores on the American College Testing
Program (ACT) for the five historically white institutions than for the
three historically black universities derived from policies enacted in
the 1970's to redress the problem of student unpreparedness, the
policy is constitutionally suspect because it was originally enacted in
1963 by three of the white universities to discriminate against black
students, who, at the time, had an average ACT score well below the
required minimum.  The policy also has present discriminatory
effects, since a much higher percentage of white than of black high
school seniors recently scored at or above the minimum necessary to
enter a white university.  The segregative effect of this standard is
especially striking in light of the differences in minimum required
entrance scores among the white and black regional universities and
colleges with dissimilar programmatic missions, and yet the courts
below made little effort to justify those disparities in educational
terms or to inquire whether it was practicable to eliminate them.
The State's refusal to consider high school grade performance along
with ACT scores is also constitutionally problematic, since the ACT's
administering organization discourages use of ACT scores alone, the
disparity between black and white students' high school grade
averages is much narrower than the gap between their average ACT
scores, most States use high school grades and other indicators along
with standardized test scores, and Mississippi's approach was not
adequately justified or shown to be unsusceptible to elimination
without eroding sound educational policy.  Pp.14-18.
(b)The District Court's treatment of the widespread duplication
of programs at the historically black and historically white Missis-
sippi universities is problematic for several reasons.  First, it can
hardly be denied that such duplication represents a continuation of
the ``separate but equal'' treatment required by the prior dual system,
and yet the court's holding that petitioners could not establish a
constitutional defect shifted the burden of proof away from the State
in violation of Brown II, supra, at 300, and its progeny.  Second,
implicit in the court's finding of ``unnecessary'' duplication is the
absence of any educational justification and the fact that some if not
all duplication may be practically eliminated.  Finally, by treating
this issue in isolation, the court failed to consider the combined
effects of unnecessary duplication with other policies in evaluating
whether the State had met its constitutional duty.  Pp.18-20.
(c)Mississippi's 1981 mission assignments scheme has as its
antecedents the policies enacted to perpetuate racial separation
during the de jure period.  When combined with the differential
admission practices and unnecessary program duplication, it is likely
that the mission designations interfere with student choice and tend
to perpetuate the segregated system.  On remand, the court should
inquire whether it would be practicable and consistent with sound
educational practices to eliminate any such discriminatory effects.
Pp.20-22.
(d)Also on remand, the court should inquire and determine
whether the State's retention and operation of all eight higher
educational institutions in an attempt to bring itself into constitution-
al compliance actually affects student choice and perpetuates the
de jure system, whether maintenance of each of the universities is
educationally justifiable, and whether one or more of them can
practicably be closed or merged with other existing institutions.
Though certainly closure of one or more institutions would decrease
the system's discriminatory effects, the present record is inadequate
to demonstrate whether such action is constitutionally required.
Pp.22-23.
(e)In addition to the foregoing policies and practices, the full
range of the State's higher educational activities, including its
funding of the three historically black schools, must be examined on
remand under the proper standard to determine whether the State
is taking the necessary steps to dismantle its prior system.
Pp.23-24.
914 F.2d 676, vacated and remanded.

White, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Blackmun, Stevens, O'Connor, Kennedy, Souter, and
Thomas, JJ., joined.  O'Connor, J., and Thomas, J., filed concurring
opinions.  Scalia, J., filed an opinion concurring in the judgment in
part and dissenting in part.


NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES--------
     Nos. 90-1205 and 90-6588
             --------
     UNITED STATES, PETITIONER
90-1205              v.
KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.

       JAKE AYERS, et al., PETITIONERS
90-6588              v.
KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.
on writs of certiorari to the united states court of
        appeals for the fifth circuit
               [June 26, 1992]

  Justice White delivered the opinion of the Court.
  In 1954, this Court held that the concept of  `separate but
equal' has no place in the field of public education.
Brown v. Board of Education (Brown I), 347 U. S. 483, 495
(1954).  The following year, the Court ordered an end to
segregated public education  with all deliberate speed.
Brown v. Board of Education (Brown II), 349 U. S. 294, 301
(1955).  Since these decisions, the Court has had many
occasions to evaluate whether a public school district has
met its affirmative obligation to dismantle its prior de jure
segregated system in elementary and secondary schools.  In
this case we decide what standards to apply in determining
whether the State of Mississippi has met this obligation in
the university context.
                      I
  Mississippi launched its public university system in 1848
by establishing the University of Mississippi, an institution
dedicated to the higher education exclusively of white
persons.  In succeeding decades, the State erected addi-
tional post-secondary, single-race educational facilities.
Alcorn State University opened its doors in 1871 as  an
agricultural college for the education of Mississippi's black
youth.  Ayers v. Allain, 674 F. Supp. 1523, 1527 (ND Miss.
1987).  Creation of four more exclusively white institutions
followed: Mississippi State University (1880), Mississippi
University for Women (1885), University of Southern
Mississippi (1912), and Delta State University (1925).  The
State added two more solely black institutions in 1940 and
1950: in the former year, Jackson State University, which
was charged with training  black teachers for the black
public schools, id., at 1528; and in the latter year, Missis-
sippi Valley State University, whose functions were to
educate teachers primarily for rural and elementary schools
and to provide vocational instruction to black students.
  Despite this Court's decisions in Brown I and Brown II,
Mississippi's policy of de jure segregation continued.  The
first black student was not admitted to the University of
Mississippi until 1962, and then only by court order.  See
Meredith v. Fair, 306 F. 2d 374 (CA5), cert. denied, 371
U. S. 828, enf'd, 313 F. 2d 532 (1962) (en banc) (per
curiam).  For the next 12 years the segregated public
university system in the State remained largely intact.
Mississippi State University, Mississippi University for
Women, University of Southern Mississippi, and Delta
State University each admitted at least one black student
during these years, but the student composition of these
institutions was still almost completely white.  During this
period, Jackson State and Mississippi Valley State were
exclusively black; Alcorn State had admitted five white
students by 1968.
  In 1969, the United States Department of Health, Edu-
cation and Welfare (HEW) initiated efforts to enforce Title
VI of the Civil Rights Act of 1964, 42 U. S. C. 2000d.
HEW requested that the State devise a plan to disestablish
the formerly de jure segregated university system.  In June
1973, the Board of Trustees of State Institutions of Higher
Learning submitted a Plan of Compliance, which expressed
the aims of improving educational opportunities for all
Mississippi citizens by setting numerical goals on the
enrollment of other-race students at State universities,
hiring other-race faculty members, and instituting remedial
programs and special recruitment efforts to achieve those
goals.  App. 898-900.  HEW rejected this Plan as failing to
comply with Title VI because it did not go far enough in the
areas of student recruitment and enrollment, faculty hiring,
elimination of unnecessary program duplication, and
institutional funding practices to ensure that  a student's
choice of institution or campus, henceforth, will be based on
other than racial criteria.  Id., at 205.  The Board reluc-
tantly offered amendments, prefacing its reform pledge to
HEW with this statement:  With deference, it is the
position of the Board of Trustees . . . that the Mississippi
system of higher education is in compliance with Title VI of
the Civil Rights Act of 1964.  Id., at 898.  At this time, the
racial composition of the State's universities had changed
only marginally from the levels of 1968, which were almost
exclusively single-race.  Though HEW refused to accept
the modified Plan, the Board adopted it anyway.  674 F.
Supp., at 1530.  But even the limited effects of this Plan in
disestablishing the prior de jure segregated system were
substantially constricted by the state legislature, which
refused to fund it until Fiscal Year 1978, and even then at
well under half the amount sought by the Board.  App.
896-897, 1444-1445, 1448-1449.
  Private petitioners initiated this lawsuit in 1975.  They
complained that Mississippi had maintained the racially
segregative effects of its prior dual system of post-secondary
education in violation of the Fifth, Ninth, Thirteenth, and
Fourteenth Amendments, 42 U. S. C. 1981 and 1983, and
Title VI of the Civil Rights Act of 1964, 42 U. S. C. 2000d.
Shortly thereafter, the United States filed its complaint in
intervention, charging that State officials had failed to
satisfy their obligation under the Equal Protection Clause
of the Fourteenth Amendment and Title VI to dismantle
Mississippi's dual system of higher education.
  After this lawsuit was filed, the parties attempted for 12
years to achieve a consensual resolution of their differences
through voluntary dismantlement by the State of its prior
separated system.  The Board of Trustees implemented re-
views of existing curricula and program  mission at each
institution.  In 1981, the Board issued  Mission Statements
that identified the extant purpose of each public university.
These  missions were clustered into three categories: com-
prehensive, urban, and regional.   Comprehensive universi-
ties were classified as those with the greatest existing re-
sources and program offerings.  All three such institutions
(University of Mississippi, Mississippi State, and Southern
Mississippi) were exclusively white under the prior de jure
segregated system.  The Board authorized each to continue
offering doctoral degrees and to assert leadership in certain
disciplines.  Jackson State, the sole urban university, was
assigned a more limited research and degree mission, with
both functions geared toward its urban setting.  It was ex-
clusively black at its inception.  The  regional designation
was something of a misnomer, as the Board envisioned
those institutions primarily in an undergraduate role,
rather than a  regional one in the geographical sense of
serving just the localities in which they were based.  Only
the universities classified as  regional included institu-
tions that, prior to desegregation, had been either exclu-
sively white"Delta State and Mississippi University for
Women"or exclusively black"Alcorn State and Mississippi
Valley.
  By the mid-1980's, 30 years after Brown, more than 99
percent of Mississippi's white students were enrolled at
University of Mississippi, Mississippi State, Southern Mis-
sissippi, Delta State, and Mississippi University for Women.
The student bodies at these universities remained predomi-
nantly white, averaging between 80 and 91 percent white
students.  Seventy-one percent of the State's black students
attended Jackson State, Alcorn State, and Mississippi
Valley, where the racial composition ranged from 92 to 99
percent black.  Ayers v. Allain, 893 F. 2d. 732, 734-735
(CA5 1990) (panel decision).
                     II
  By 1987, the parties concluded that they could not agree
on whether the State had taken the requisite affirmative
steps to dismantle its prior de jure segregated system.
They proceeded to trial.  Both sides presented voluminous
evidence on a full range of educational issues spanning
admissions standards, faculty and administrative staff re-
cruitment, program duplication, on-campus discrimination,
institutional funding disparities, and satellite campuses.
Petitioners argued that in various ways the State continued
to reinforce historic, race-based distinctions among the
universities.  Respondents argued generally that the State
had fulfilled its duty to disestablish its state-imposed
segregative system by implementing and maintaining good-
faith, nondiscriminatory race-neutral policies and practices
in student admission, faculty hiring, and operations.  More-
over, they suggested, the State had attracted significant
numbers of qualified black students to those universities
composed mostly of white persons.  Respondents averred
that the mere continued existence of racially identifiable
universities was not unlawful given the freedom of students
to choose which institution to attend and the varying objec-
tives and features of the State's universities.
  At trial's end, based on the testimony of 71 witnesses and
56,700 pages of exhibits, the District Court entered exten-
sive findings of fact.  The court first offered a historical
overview of the higher education institutions in Mississippi
and the developments in the system between 1954 and the
filing of this suit in 1975.  674 F. Supp., at 1526-1530.  It
then made specific findings recounting post-1975 develop-
ments, including a description at the time of trial, in those
areas of the higher education system under attack by plain-
tiffs: admission requirements and recruitment; institutional
classification and assignment of missions; duplication of
programs; facilities and finance; the land grant institutions;
faculty and staff; and governance.  Id., at 1530-1550.
  The court's conclusions of law followed.  As an overview,
the court outlined the common ground in the case:  Where
a state has previously maintained a racially dual system of
public education established by law, it assumes an `affirma-
tive duty' to reform those policies and practices which re-
quired or contributed to the separation of the races.  Id., at
1551.  Noting that courts unanimously hold that the affir-
mative duty to dismantle a racially dual structure in ele-
mentary and secondary schools also governs in the higher
education context, the court observed that there was dis-
agreement whether Green v. New Kent County School Bd.,
391 U. S. 430 (1968), applied in all of its aspects to formerly
dual systems of higher education, i.e., whether  some level
of racial mixture at previously segregated institutions of
higher learning is not only desirable but necessary to `effec-
tively' desegregate the system.  674 F. Supp., at 1552.  Re-
lying on a Fifth Circuit three-judge court decision, Alabama
State Teachers Assn. (ASTA) v. Alabama Public School and
College Authority, 289 F. Supp. 784 (MD Ala. 1968), our per
curiam affirmance of that case, 393 U. S. 400 (1969), and
its understanding of our later decision in Bazemore v. Fri-
day, 478 U. S. 385 (1986), the court concluded that in the
higher education context,  the affirmative duty to desegre-
gate does not contemplate either restricting choice or the
achievement of any degree of racial balance.  674 F. Supp.,
at 1553.  Thus, the court stated:  While student enrollment
and faculty and staff hiring patterns are to be examined,
greater emphasis should instead be placed on current state
higher education policies and practices in order to insure
that such policies and practices are racially neutral, de-
veloped and implemented in good faith, and do not substan-
tially contribute to the continued racial identifiability of
individual institutions.  Id., at 1554.
  When it addressed the same aspects of the university sys-
tem covered by the fact-findings in light of the foregoing
standard, the court found no violation of federal law in any
of them.   In summary, the court finds that current actions
on the part of the defendants demonstrate conclusively that
the defendants are fulfilling their affirmative duty to dis-
establish the former de jure segregated system of higher
education.  Id., at 1564.
  The Court of Appeals reheard the case en banc and af-
firmed the decision of the District Court.  Ayers v. Allain,
914 F. 2d 676 (CA5 1990).  With a single exception, see
infra, at ___, it did not disturb the District Court's findings
of fact or conclusions of law.  The en banc majority agreed
that  Mississippi was . . . constitutionally required to elimi-
nate invidious racial distinctions and dismantle its dual
system.  Id., at 682.  That duty, the court held, had been
discharged since  the record makes clear that Mississippi
has adopted and implemented race neutral policies for op-
erating its colleges and universities and that all students
have real freedom of choice to attend the college or uni-
versity they wish . . . .  Id., at 678.
  We granted the respective writs of certiorari filed by the
United States and the private petitioners.  499 U. S. ___
(1991).
                     III
  The District Court, the Court of Appeals, and respondents
recognize and acknowledge that the State of Mississippi had
the constitutional duty to dismantle the dual school system
that its laws once mandated.  Nor is there any dispute that
this obligation applies to its higher education system.  If
the State has not discharged this duty, it remains in vio-
lation of the Fourteenth Amendment.  Brown v. Board of
Education and its progeny clearly mandate this observation.
Thus, the primary issue in this case is whether the State
has met its affirmative duty to dismantle its prior dual
university system.
  Our decisions establish that a State does not discharge its
constitutional obligations until it eradicates policies and
practices traceable to its prior de jure dual system that
continue to foster segregation.  Thus we have consistently
asked whether existing racial identifiability is attributable
to the State, see, e.g., Freeman v. Pitts, 503 U. S. ___ (1992)
(slip op., at 24); Bazemore v. Friday, supra, at 407
(White, J., concurring); Pasadena City Board of Educ. v.
Spangler, 427 U. S. 424, 434 (1976); Gilmore v. City of
Montgomery, 417 U. S. 556, 566-567 (1974); and examined
a wide range of factors to determine whether the State has
perpetuated its formerly de jure segregation in any facet
of its institutional system.  See, e.g., Board of Education of
Oklahoma City v. Dowell, 498 U. S. ___, ___ (slip op., at 11);
Swann v. Charlotte-Mecklenburg Bd. of Education, 402
U. S. 1, 18 (1971); Green v. New Kent County School Bd.,
supra, at 435-438.
                         The Court of Appeals concluded that the State had ful-
filled its affirmative obligation to disestablish its prior
de jure segregated system by adopting and implementing
race-neutral policies governing its college and university
system.  Because students seeking higher education had
 real freedom to choose the institution of their choice, the
State need do no more.  Even though neutral policies and
free choice were not enough to dismantle a dual system of
primary or secondary schools, Green v. New Kent County
School Board, supra, the Court of Appeals thought that
universities  differ in character fundamentally from lower
levels of schools, 914 F. 2d, at 686, sufficiently so that our
decision in Bazemore v. Friday, supra, justified the conclu-
sion that the State had dismantled its former dual system.
  Like the United States, we do not disagree with the Court
of Appeals' observation that a state university system is
quite different in very relevant respects from primary and
secondary schools.  Unlike attendance at the lower level
schools, a student's decision to seek higher education has
been a matter of choice.  The State historically has not
assigned university students to a particular institution.
Moreover, like public universities throughout the country,
Mississippi's institutions of higher learning are not fungi-
ble"they have been designated to perform certain missions.
Students who qualify for admission enjoy a range of choices
of which institution to attend.  Thus, as the Court of Ap-
peals stated,  [i]t hardly needs mention that remedies
common to public school desegregation, such as pupil
assignments, busing, attendance quotas, and zoning, are
unavailable when persons may freely choose whether to
pursue an advanced education and, when the choice is
made, which of several universities to attend.  914 F. 2d,
at 687.
  We do not agree with the Court of Appeals or the District
Court, however, that the adoption and implementation of
race-neutral policies alone suffice to demonstrate that the
State has completely abandoned its prior dual system.  That
college attendance is by choice and not by assignment does
not mean that a race-neutral admissions policy cures the
constitutional violation of a dual system.  In a system based
on choice, student attendance is determined not simply by
admissions policies, but also by many other factors.  Al-
though some of these factors clearly cannot be attributed to
State policies, many can be.  Thus, even after a State dis-
mantles its segregative admissions policy, there may still be
state action that is traceable to the State's prior de jure
segregation and that continues to foster segregation.  The
Equal Protection Clause is offended by  sophisticated as
well as simple-minded modes of discrimination.  Lane v.
Wilson, 307 U. S. 268, 275 (1939).  If policies traceable to
the de jure system are still in force and have discriminatory
effects, those policies too must be reformed to the extent
practicable and consistent with sound educational practices.
Freeman, supra, at ___ (slip op., at 21-22; Dowell, supra, at
___ (slip op., at 11); Green, 391 U. S., at 439; Florida ex rel.
Hawkins v. Board of Control of Fla., 350 U. S. 413, 414
(1956) (per curiam).  We also disagree with respondents
that the Court of Appeals and District Court properly relied
on our decision in Bazemore v. Friday, 478 U. S. 385 (1986).
Bazemore neither requires nor justifies the conclusions
reached by the two courts below.
  Bazemore raised the issue whether the financing and op-
erational assistance provided by a state university's exten-
sion service to voluntary 4-H and Homemaker Clubs was
inconsistent with the Equal Protection Clause because of
the existence of numerous all-white and all-black clubs.
Though prior to 1965 the clubs were supported on a segre-
gated basis, the District Court had found that the policy of
segregation had been completely abandoned and that no evi-
dence existed of any lingering discrimination in either
services or membership; any racial imbalance resulted from
the wholly voluntary and unfettered choice of private in-
dividuals.  Bazemore, supra, at 407 (White, J., concurring).
In this context, we held inapplicable the Green Court's judg-
ment that a voluntary choice program was insufficient to
dismantle a de jure dual system in public primary and sec-
ondary schools, but only after satisfying ourselves that the
State had not fostered segregation by playing a part in the
decision of which club an individual chose to join.
                         Bazemore plainly does not excuse inquiry into whether
Mississippi has left in place certain aspects of its prior dual
system that perpetuate the racially segregated higher edu-
cation system.  If the State perpetuates policies and prac-
tices traceable to its prior system that continue to have
segregative effects"whether by influencing student enroll-
ment decisions or by fostering segregation in other facets of
the university system"and such policies are without sound
educational justification and can be practicably eliminated,
the State has not satisfied its burden of proving that it has
dismantled its prior system.  Such policies run afoul of the
Equal Protection Clause, even though the State has abol-
ished the legal requirement that whites and blacks be edu-
cated separately and has established racially neutral poli-
cies not animated by a discriminatory purpose.  Because
the standard applied by the District Court did not make
these inquiries, we hold that the Court of Appeals erred in
affirming the District Court's ruling that the State had
brought itself into compliance with the Equal Protection
Clause in the operation of its higher education system.
                                            IV
  Had the Court of Appeals applied the correct legal stand-
ard, it would have been apparent from the undisturbed fac-
tual findings of the District Court that there are several
surviving aspects of Mississippi's prior dual system which
are constitutionally suspect; for even though such policies
may be race-neutral on their face, they substantially re-
strict a person's choice of which institution to enter and
they contribute to the racial identifiability of the eight
public universities.  Mississippi must justify these policies
or eliminate them.
  It is important to state at the outset that we make no ef-
fort to identify an exclusive list of unconstitutional rem-
nants of Mississippi's prior de jure system.  In highlighting,
as we do below, certain remnants of the prior system that
are readily apparent from the findings of fact made by the
District Court and affirmed by the Court of Appeals, we by
no means suggest that the Court of Appeals need not exam-
ine, in light of the proper standard, each of the other poli-
cies now governing the State's university system that have
been challenged or that are challenged on remand in light
of the standard that we articulate today.  With this caveat
in mind, we address four policies of the present system:
admission standards, program duplication, institutional
mission assignments, and continued operation of all eight
public universities.
  We deal first with the current admissions policies of Mis-
sissippi's public universities.  As the District Court found,
the three flagship historically white universities in the
system"University of Mississippi, Mississippi State Uni-
versity, and University of Southern Mississippi"enacted
policies in 1963 requiring all entrants to achieve a mini-
mum composite score of 15 on the American College Testing
Program (ACT).  674 F. Supp., at 1531.  The court described
the  discriminatory taint of this policy, id., at 1557, an
obvious reference to the fact that, at the time, the average
ACT score for white students was 18 and the average score
for blacks was 7.  893 F. 2d, at 735.  The District Court
concluded, and the en banc Court of Appeals agreed, that
present admissions standards derived from policies enacted
in the 1970's to redress the problem of student unprepared-
ness.  914 F. 2d, at 679; 674 F. Supp., at 1531.  Obviously,
this mid-passage justification for perpetuating a policy en-
acted originally to discriminate against black students does
not make the present admissions standards any less consti-
tutionally suspect.
  The present admission standards are not only traceable
to the de jure system and were originally adopted for a
discriminatory purpose, but they also have present dis-
criminatory effects.  Every Mississippi resident under 21
seeking admission to the university system must take the
ACT.  Any applicant who scores at least 15 qualifies for
automatic admission to any of the five historically white
institutions except Mississippi University for Women, which
requires a score of 18 for automatic admission unless the
student has a 3.0 high school grade average.  Those scoring
less than 15 but at least 13 automatically qualify to enter
Jackson State University, Alcorn State University, and Mis-
sissippi Valley State University.  Without doubt, these re-
quirements restrict the range of choices of entering students
as to which institution they may attend in a way that per-
petuates segregation.  Those scoring 13 or 14, with some ex-
ceptions, are excluded from the five historically white uni-
versities and if they want a higher education must go to one
of the historically black institutions or attend junior college
with the hope of transferring to a historically white institu-
tion.  Proportionately more blacks than whites face this
choice: in 1985, 72 percent of Mississippi's white high school
seniors achieved an ACT composite score of 15 or better,
while less than 30 percent of black high school seniors
earned that score.  App. 1524-1525.  It is not surprising
then that Mississippi's universities remain predominantly
identifiable by race.
  The segregative effect of this automatic entrance stand-
ard is especially striking in light of the differences in mini-
mum automatic entrance scores among the regional univer-
sities in Mississippi's system.  The minimum score for auto-
matic admission to Mississippi University for Women
(MUW) is 18; it is 13 for the historically black universities.
Yet MUW is assigned the same institutional mission as two
other regional universities, Alcorn State and Mississippi
Valley"that of providing quality undergraduate education.
The effects of the policy fall disproportionately on black
students who might wish to attend MUW; and though the
disparate impact is not as great, the same is true of the
minimum standard ACT score of 15 at Delta State Univer-
sity"the other  regional university"as compared to the
historically black  regional universities where a score of 13
suffices for automatic admission.  The courts below made
little if any effort to justify in educational terms those
particular disparities in entrance requirements or to inquire
whether it was practicable to eliminate them.
  We also find inadequately justified by the courts below or
by the record before us the differential admissions require-
ments between universities with dissimilar programmatic
missions.  We do not suggest that absent a discriminatory
purpose different programmatic missions accompanied by
different admission standards would be constitutionally sus-
pect simply because one or more schools are racially iden-
tifiable.  But here the differential admission standards are
remnants of the dual system with a continuing discrimina-
tory effect, and the mission assignments  to some degree
follow the historical racial assignments, 914 F. 2d, at 692.
Moreover, the District Court did not justify the differing
admission standards based on the different mission assign-
ments.  It observed only that in the 1970's, the Board of
Trustees justified a minimum ACT score of 15 because too
many students with lower scores were not prepared for the
historically white institutions and that imposing the 15
score requirement on admissions to the historically black
institutions would decimate attendance at those universi-
ties.  The District Court also stated that the mission of the
regional universities had the more modest function of pro-
viding quality undergraduate education.  Certainly the com-
prehensive universities are also, among other things, edu-
cating undergraduates.  But we think the 15 ACT test score
for automatic admission to the comprehensive universities,
as compared with a score of 13 for the regionals, requires
further justification in terms of sound educational policy.
  Another constitutionally problematic aspect of the State's
use of the ACT test scores is its policy of denying automatic
admission if an applicant fails to earn the minimum ACT
score specified for the particular institution, without also
resorting to the applicant's high school grades as an addi-
tional factor in predicting college performance.  The United
States produced evidence that the American College Testing
Program (ACTP), the administering organization of the
ACT, discourages use of ACT scores as the sole admissions
criterion on the ground that it gives an incomplete  picture
of the student applicant's ability to perform adequately in
college.  App. 1209-1210.  One ACTP report presented into
evidence suggests that  it would be foolish to substitute a
3- or 4-hour test in place of a student's high school grades
as a means of predicting college performance.  Id., at 193.
The record also indicated that the disparity between black
and white students' high school grade averages was much
narrower than the gap between their average ACT scores,
thereby suggesting that an admissions formula which in-
cluded grades would increase the number of black students
eligible for automatic admission to all of Mississippi's public
universities.
                         The United States insists that the State's refusal to
consider information which would better predict college
performance than ACT scores alone is irrational in light of
most States' use of high school grades and other indicators
along with standardized test scores.  The District Court
observed that the Board of Trustees was concerned with
grade inflation and the lack of comparability in grading
practices and course offerings among the State's diverse
high schools.  Both the District Court and the Court of
Appeals found this concern ample justification for the fail-
ure to consider high school grade performance along with
ACT scores.  In our view, such justification is inadequate
because the ACT requirement was originally adopted for
discriminatory purposes, the current requirement is trace-
able to that decision and seemingly continues to have segre-
gative effects, and the State has so far failed to show that
the  ACT-only admission standard is not susceptible to
elimination without eroding sound educational policy.
  A second aspect of the present system that necessitates
further inquiry is the widespread duplication of programs.
 Unnecessary duplication refers, under the District Court's
definition,  to those instances where two or more institu-
tions offer the same nonessential or noncore program.
Under this definition, all duplication at the bachelor's level
of nonbasic liberal arts and sciences course work and all
duplication at the master's level and above are considered
to be unnecessary.  674 F. Supp., at 1540.  The District
Court found that 34.6 percent of the 29 undergraduate
programs at historically black institutions are  unnec-
essarily duplicated by the historically white universities,
and that 90 percent of the graduate programs at the
historically black institutions are unnecessarily duplicated
at the historically white institutions.  Id., at 1541.  In its
conclusions of law on this point, the District Court never-
theless determined that  there is no proof that such
duplication  is directly associated with the racial identifi-
ability of institutions, and that  there is no proof that the
elimination of unnecessary program duplication would be
justifiable from an educational standpoint or that its
elimination would have a substantial effect on student
choice.  Id., at 1561.
  The District Court's treatment of this issue is problematic
from several different perspectives.  First, the court ap-
peared to impose the burden of proof on the plaintiffs to
meet a legal standard the court itself acknowledged was not
yet formulated.  It can hardly be denied that such duplica-
tion was part and parcel of the prior dual system of higher
education"the whole notion of  separate but equal re-
quired duplicative programs in two sets of schools"and
that the present unnecessary duplication is a continuation
of that practice.  Brown and its progeny, however, estab-
lished that the burden of proof falls on the State, and not
the aggrieved plaintiffs, to establish that it has dismantled
its prior de jure segregated system.  Brown II, 349 U. S., at
300.  The court's holding that petitioners could not establish
the constitutional defect of unnecessary duplication, there-
fore, improperly shifted the burden away from the State.
Second, implicit in the District Court's finding of  unneces-
sary duplication is the absence of any educational justifica-
tion and the fact that some if not all duplication may be
practicably eliminated.  Indeed, the District Court observed
that such duplication  cannot be justified economically or in
terms of providing quality education.  674 F. Supp., at
1541.  Yet by stating that  there is no proof that elimina-
tion of unnecessary duplication would decrease institutional
racial identifiability, affect student choice, and promote
educationally sound policies, the court did not make clear
whether it had directed the parties to develop evidence on
these points, and if so, what that evidence revealed.  See
id., at 1561.  Finally, by treating this issue in isolation,
the court failed to consider the combined effects of unneces-
sary program duplication with other policies, such as differ-
ential admissions standards, in evaluating whether the
State had met its duty to dismantle its prior de jure segre-
gated system.
  We next address Mississippi's scheme of institutional mis-
sion classification, and whether it perpetuates the State's
formerly de jure dual system.  The District Court found
that, throughout the period of de jure segregation, Univer-
sity of Mississippi, Mississippi State University, and Uni-
versity of Southern Mississippi were the flagship institu-
tions in the state system.  They received the most funds, in-
itiated the most advanced and specialized programs, and
developed the widest range of curricular functions.  At their
inception, each was restricted for the education solely of
white persons.  Id., at 1526-1528.  The missions of Missis-
sippi University for Women and Delta State University
(DSU), by contrast, were more limited than their other all-
white counterparts during the period of legalized segrega-
tion.  MUW and DSU were each established to provide un-
dergraduate education solely for white students in the
liberal arts and such other fields as music, art, education,
and home economics.  Id., at 1527-1528.  When they were
founded, the three exclusively black universities were more
limited in their assigned academic missions than the five
all-white institutions.  Alcorn State, for example, was des-
ignated to serve as  an agricultural college for the education
of Mississippi's black youth.  Id., at 1527.  Jackson State
and Mississippi Valley State were established to train black
teachers.  Id., at 1528.  Though the District Court's findings
do not make this point explicit, it is reasonable to infer that
state funding and curriculum decisions throughout the pe-
riod of de jure segregation were based on the purposes for
which these institutions were established.
  In 1981, the State assigned certain missions to Missis-
sippi's public universities as they then existed.  It classified
University of Mississippi, Mississippi State, and Southern
Mississippi as  comprehensive universities having the most
varied programs and offering graduate degrees.  Two of the
historically white institutions, Delta State University and
Mississippi University for Women, along with two of the
historically black institutions, Alcorn State University and
Mississippi Valley State University, were designated as  re-
gional universities with more limited programs and de-
voted primarily to undergraduate education.  Jackson State
University was classified as an  urban university whose
mission was defined by its urban location.
  The institutional mission designations adopted in 1981
have as their antecedents the policies enacted to perpetuate
racial separation during the de jure segregated regime.  The
Court of Appeals expressly disagreed with the District
Court by recognizing that the  inequalities among the insti-
tutions largely follow the mission designations, and the
mission designations to some degree follow the historical
racial assignments.  914 F. 2d, at 692.  It nevertheless
upheld this facet of the system as constitutionally accept-
able based on the existence of good-faith racially neutral
policies and procedures.  That different missions are as-
signed to the universities surely limits to some extent an
entering student's choice as to which university to seek
admittance.  While the courts below both agreed that the
classification and mission assignments were made without
discriminatory purpose, the Court of Appeals found that the
record  supports the plaintiffs' argument that the mission
designations had the effect of maintaining the more limited
program scope at the historically black universities.  Id., at
690.  We do not suggest that absent discriminatory purpose
the assignment of different missions to various institutions
in a State's higher education system would raise an equal
protection issue where one or more of the institutions be-
come or remain predominantly black or white.  But here the
issue is whether the State has sufficiently dismantled its
prior dual system; and when combined with the differential
admission practices and unnecessary program duplication,
it is likely that the mission designations interfere with
student choice and tend to perpetuate the segregated sys-
tem.  On remand, the court should inquire whether it would
be practicable and consistent with sound educational prac-
tices to eliminate any such discriminatory effects of the
State's present policy of mission assignments.
  Fourth, the State attempted to bring itself into compli-
ance with the Constitution by continuing to maintain and
operate all eight higher educational institutions.  The ex-
istence of eight instead of some lesser number was undoubt-
edly occasioned by State laws forbidding the mingling of the
races.  And as the District Court recognized, continuing to
maintain all eight universities in Mississippi is wasteful
and irrational.  The District Court pointed especially to the
facts that Delta State and Mississippi Valley are only 35
miles apart and that only 20 miles separate Mississippi
State and Mississippi University for Women.  674 F. Supp.,
at 1563-1564.  It was evident to the District Court that  the
defendants undertake to fund more institutions of higher
learning than are justified by the amount of financial
resources available to the state, id., at 1564, but the court
concluded that such fiscal irresponsibility was a policy
choice of the legislature rather than a feature of a system
subject to constitutional scrutiny.
  Unquestionably, a larger rather than a smaller number
of institutions from which to choose in itself makes for
different choices, particularly when examined in the light
of other factors present in the operation of the system, such
as admissions, program duplication, and institutional mis-
sion designations.  Though certainly closure of one or more
institutions would decrease the discriminatory effects of the
present system, see, e.g., United States v. Louisiana, 718 F.
Supp. 499, 514 (ED La. 1989), based on the present record
we are unable to say whether such action is constitutionally
required.  Elimination of program duplication and revi-
sion of admissions criteria may make institutional closure
unnecessary.  However, on remand this issue should be
carefully explored by inquiring and determining whether
retention of all eight institutions itself affects student
choice and perpetuates the segregated higher education
system, whether maintenance of each of the universities is
educationally justifiable, and whether one or more of them
can be practicably closed or merged with other existing
institutions.
  Because the former de jure segregated system of public
universities in Mississippi impeded the free choice of pro-
spective students, the State in dismantling that system
must take the necessary steps to ensure that this choice
now is truly free.  The full range of policies and practices
must be examined with this duty in mind.  That an
institution is predominantly white or black does not in itself
make out a constitutional violation.  But surely the State
may not leave in place policies rooted in its prior officially-
segregated system that serve to maintain the racial
identifiability of its universities if those policies can
practicably be eliminated without eroding sound education-
al policies.
  If we understand private petitioners to press us to order
the upgrading of Jackson State, Alcorn State, and Missis-
sippi Valley solely so that they may be publicly financed,
exclusively black enclaves by private choice, we reject that
request.  The State provides these facilities for all its citi-
zens and it has not met its burden under Brown to take af-
firmative steps to dismantle its prior de jure system when
it perpetuates a separate, but  more equal one.  Whether
such an increase in funding is necessary to achieve a full
dismantlement under the standards we have outlined,
however, is a different question, and one that must be ad-
dressed on remand.
  Because the District Court and the Court of Appeals
failed to consider the State's duties in their proper light, the
cases must be remanded.  To the extent that the State has
not met its affirmative obligation to dismantle its prior dual
system, it shall be adjudged in violation of the Constitution
and Title VI and remedial proceedings shall be conducted.
The decision of the Court of Appeals is vacated, and the
cases are remanded for further proceedings consistent with
this opinion.
                            It is so ordered.



          SUPREME COURT OF THE UNITED STATES--------
                Nos. 90-1205 and 90-6588
                        --------
                UNITED STATES, PETITIONER
90-1205                         v.
           KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.

                  JAKE AYERS, et al., PETITIONERS
90-6588                         v.
           KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.
       on writs of certiorari to the united states court of
                   appeals for the fifth circuit
                          [June 26, 1992]

       Justice O'Connor, concurring.
       I join the opinion of the Court, which requires public
universities, like public elementary and secondary schools,
to affirmatively dismantle their prior de jure segregation in
order to create an environment free of racial discrimination
and to make aggrieved individuals whole.  See Brown v.
Board of Education, 349 U. S. 294, 299 (1955) (Brown II);
Milliken v. Bradley, 418 U. S. 717, 746 (1974).  I write
separately to emphasize that it is Mississippi's burden to
prove that it has undone its prior segregation, and that the
circumstances in which a State may maintain a policy or
practice traceable to de jure segregation that has segrega-
tive effects are narrow.  In light of the State's long history
of discrimination, and the lost educational and career
opportunities and stigmatic harms caused by discriminatory
educational systems, see Brown v. Board of Education, 347
U. S. 483, 494 (1954) (Brown I); Sweatt v. Painter, 339 U. S.
629, 634-635 (1950); McLaurin v. Oklahoma State Regents
for Higher Ed., 339 U. S. 637, 640-641 (1950), the courts
below must carefully examine Mississippi's proffered
justifications for maintaining a remnant of de jure segrega-
tion to ensure that such rationales do not merely mask the
perpetuation of discriminatory practices.  Where the State
can accomplish legitimate educational objectives through
less segregative means, the courts may infer lack of good
faith;  at the least it places a heavy burden upon the [State]
to explain its preference for an apparently less effective
method.  Green v. New Kent County School Bd., 391 U. S.
430, 439 (1968).  In my view, it also follows from the State's
obligation to prove that it has  take[n] all steps to elimi-
nate policies and practices traceable to de jure segregation,
Freeman v. Pitts, 503 U. S. ___, ___ (1992) (slip op., at 15),
that if the State shows that maintenance of certain rem-
nants of its prior system is essential to accomplish its
legitimate goals, then it still must prove that it has counter-
acted and minimized the segregative impact of such policies
to the extent possible.  Only by eliminating a remnant that
unnecessarily continues to foster segregation or by negating
insofar as possible its segregative impact can the State
satisfy its constitutional obligation to dismantle the
discriminatory system that should, by now, be only a
distant memory.



           SUPREME COURT OF THE UNITED STATES--------
                Nos. 90-1205 and 90-6588
                        --------
                UNITED STATES, PETITIONER
90-1205                         v.
           KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.

                  JAKE AYERS, et al., PETITIONERS
90-6588                         v.
           KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.
       on writs of certiorari to the united states court of
                   appeals for the fifth circuit
                          [June 26, 1992]

       Justice Thomas, concurring.
       ``We must rally to the defense of our schools.  We must
repudiate this unbearable assumption of the right to kill
institutions unless they conform to one narrow standard.''
W.E.B. Du Bois, Schools, 13 The Crisis 111, 112 (1917).
       I agree with the Court that a State does not satisfy its
obligation to dismantle a dual system of higher education
merely by adopting race-neutral policies for the future
administration of that system.  Today, we hold that ``[i]f
policies traceable to the de jure system are still in force and
have discriminatory effects, those policies too must be
reformed to the extent practicable and consistent with
sound educational policies.''  Ante, at 10.  I agree that this
statement defines the appropriate standard to apply in the
higher-education context.  I write separately to emphasize
that this standard is far different from the one adopted to
govern the grade-school context in Green v. New Kent
County School Bd., 391 U. S. 430 (1968), and its progeny.
In particular, because it does not compel the elimination of
all observed racial imbalance, it portends neither the
destruction of historically black colleges nor the severing of
those institutions from their distinctive histories and
traditions.
       In Green, we held that the adoption of a freedom-of-choice
plan does not satisfy the obligations of a formerly de jure
grade-school system should the plan fail to decrease, if not
eliminate, the racial imbalance within that system.  See id.,
at 441.  Although racial imbalance does not itself establish
a violation of the Constitution, our decisions following
Green indulged the presumption, often irrebuttable in
practice, that a presently observed imbalance has been
proximately caused by intentional state action during the
prior de jure era.  See, e.g., Dayton Bd. of Ed. v. Brinkman,
443 U. S. 526, 537 (1979); Keyes v. School Dist. No. 1,
Denver, Colo., 413 U. S. 189, 211 (1973).  As a result, we
have repeatedly authorized the district courts to reassign
students, despite the operation of facially neutral assign-
ment policies, in order to eliminate or decrease observed
racial imbalances.  See, e.g., Swann v. Charlotte-Mecklen-
burg Board of Ed., 402 U. S. 1, 22-31 (1971); Green, supra,
at 442, n. 6.
       Whatever the merit of this approach in the grade-school
context, it is quite plainly not the approach that we adopt
today to govern the higher-education context.  We explicitly
reject the use of remedies as ``radical'' as student reassign-
ment"i.e., ``remedies akin to those upheld in Green.''  Ante,
at 10, n. 4; see also ante, at 9.  Of necessity, then, we
focus on the specific policies alleged to produce racial
imbalance, rather than on the imbalance itself.  Thus, a
plaintiff cannot obtain relief merely by identifying a
persistent racial imbalance, because the district court
cannot provide a reassignment remedy designed to elimi-
nate that imbalance directly.  Plaintiffs are likely to be able
to identify, as these plaintiffs have identified, specific
policies traceable to the de jure era that continue to produce
a current racial imbalance.  As a practical matter, then, the
district courts administering our standard will spend their
time determining whether such policies have been ade-
quately justified"a far narrower, more manageable task
than that imposed under Green.
       A challenged policy does not survive under the standard
we announce today if it began during the prior de jure era,
produces adverse impacts, and persists without sound
educational justification.  When each of these elements has
been met, I believe, we are justified in not requiring proof
of a present specific intent to discriminate.  It is safe to
assume that a policy adopted during the de jure era, if it
produces segregative effects, reflects a discriminatory
intent.  As long as that intent remains, of course, such a
policy cannot continue.  And given an initially tainted
policy, it is eminently reasonable to make the State bear
the risk of nonpersuasion with respect to intent at some
future time, both because the State has created the dispute
through its own prior unlawful conduct, see, e.g., Keyes,
supra, at 209-210, and because discriminatory intent does
tend to persist through time, see, e.g., Hazelwood School
Dist. v. United States, 433 U. S. 299, 309-310, n. 15 (1977).
Although we do not formulate our standard in terms of a
burden shift with respect to intent, the factors we do
consider"the historical background of the policy, the degree
of its adverse impact, and the plausibility of any justifica-
tion asserted in its defense"are precisely those factors that
go into determining intent under Washington v. Davis, 426
U. S. 229 (1976).  See, e.g., Arlington Heights v. Metropoli-
tan Housing Development Corp., 429 U. S. 252, 266-267
(1977).  Thus, if a policy remains in force, without adequate
justification and despite tainted roots and segregative
effect, it appears clear"clear enough to presume conclu-
sively"that the State has failed to disprove discriminatory
intent.
       We have no occasion to elaborate upon what constitutes
an adequate justification.  Under Green, we have recognized
that an otherwise unconstitutional policy may be justified
if it serves ``important and legitimate ends,'' Dayton, supra,
at 538, or if its elimination is not ``practicable,'' Board of
Ed. of Oklahoma City v. Dowell, 498 U. S. ___, ___ (1991)
(slip. op., at 11).  As Justice Scalia points out, see post, at
5-6, our standard appears to mirror these formulations
rather closely.  Nonetheless, I find most encouraging the
Court's emphasis on ``sound educational practices,'' ante, at
10 (emphasis added); see also, e.g., ante, at 12 (``sound
educational justification''); ante, at 17 (``sound educational
policy'').  From the beginning, we have recognized that
desegregation remedies cannot be designed to ensure the
elimination of any remnant at any price, but rather must
display ``a practical flexibility'' and ``a facility for adjusting
and reconciling public and private needs.''  Brown v. Board
of Ed., 349 U. S. 294, 300 (1955).  Quite obviously, one
compelling need to be considered is the educational need of
the present and future students in the Mississippi univer-
sity system, for whose benefit the remedies will be crafted.
       In particular, we do not foreclose the possibility that
there exists ``sound educational justification'' for maintain-
ing historically black colleges as such.  Despite the shame-
ful history of state-enforced segregation, these institutions
have survived and flourished.  Indeed, they have expanded
as opportunities for blacks to enter historically white
institutions have expanded.  Between 1954 and 1980, for
example, enrollment at historically black colleges increased
from 70,000 to 200,000 students, while degrees awarded
increased from 13,000 to 32,000.  See S. Hill, National
Center for Education Statistics, The Traditionally Black
Institutions of Higher Education 1860 to 1982, pp. xiv-xv
(1985).  These accomplishments have not gone unnoticed:
``The colleges founded for Negroes are both a source of
pride to blacks who have attended them and a source
of hope to black families who want the benefits of
higher learning for their children.  They have exercised
leadership in developing educational opportunities for
young blacks at all levels of instruction, and, especially
in the South, they are still regarded as key institutions
for enhancing the general quality of the lives of black
Americans.''  Carnegie Commission on Higher Educa-
tion, From Isolation to Mainstream: Problems of the
Colleges Founded for Negroes 11 (1971).
    I think it undisputable that these institutions have
succeeded in part because of their distinctive histories and
traditions; for many, historically black colleges have become
``a symbol of the highest attainments of black culture.''  J.
Preer, Lawyers v. Educators:  Black Colleges and Desegre-
gation in Public Higher Education 2 (1982).  Obviously, a
State cannot maintain such traditions by closing particular
institutions, historically white or historically black, to
particular racial groups.  Nonetheless, it hardly follows that
a State cannot operate a diverse assortment of institu-
tions"including historically black institutions"open to all
on a race-neutral basis, but with established traditions and
programs that might disproportionately appeal to one race
or another.  No one, I imagine, would argue that such
institutional diversity is without ``sound educational
justification,'' or that it is even remotely akin to program
duplication, which is designed to separate the races for the
sake of separating the races.  The Court at least hints at
the importance of this value when it distinguishes Green in
part on the ground that colleges and universities ``are not
fungible.''  Ante, at 9.  Although I agree that a State is not
constitutionally required to maintain its historically black
institutions as such, see ante, at 23-24, I do not understand
our opinion to hold that a State is forbidden from doing so.
It would be ironic, to say the least, if the institutions that
sustained blacks during segregation were themselves
destroyed in an effort to combat its vestiges.


           SUPREME COURT OF THE UNITED STATES--------
                Nos. 90-1205 and 90-6588
                        --------
                UNITED STATES, PETITIONER
90-1205                         v.
           KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.

                  JAKE AYERS, et al., PETITIONERS
90-6588                         v.
           KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.
       on writs of certiorari to the united states court of
                   appeals for the fifth circuit
                          [June 26, 1992]

       Justice Scalia, concurring in the judgment in part and
dissenting in part.
       With some of what the Court says today, I agree.  I agree,
of course, that the Constitution compels Mississippi to
remove all discriminatory barriers to its state-funded
universities.  Brown v. Board of Education, 347 U. S. 483
(1954) (Brown I).  I agree that the Constitution does not
compel Mississippi to remedy funding disparities between
its historically black institutions (HBIs) and historically
white institutions (HWIs).  And I agree that Mississippi's
American College Testing Program (ACT) requirements
need further review.  I reject, however, the effectively
unsustainable burden the Court imposes on Mississippi,
and all States that formerly operated segregated universi-
ties, to demonstrate compliance with Brown I.  That
requirement, which resembles what we prescribed for
primary and secondary schools in Green v. New Kent
County School Board, 391 U. S. 430 (1968), has no proper
application in the context of higher education, provides no
genuine guidance to States and lower courts, and is as
likely to subvert as to promote the interests of those
citizens on whose behalf the present suit was brought.
                                 I
       Before evaluating the Court's handiwork, it is no small
task simply to comprehend it.  The Court sets forth not one,
but seemingly two different tests for ascertaining compli-
ance with Brown I"though in the last analysis they come
to the same.  The Court initially announces the following
test, in Part III of its opinion: all policies (i)  traceable to
[the State's] prior [de jure] system (ii)  that continue to
have segregative effects"whether by influencing student
enrollment decisions or by fostering segregation in other
facets of the university system"must be eliminated (iii) to
the extent ``practicabl[e] and (iv) consistent with ``sound
educational'' practices.  Ante, at 12.  When the Court comes
to applying its test, however, in Part IV of the opinion,
``influencing student enrollment decisions'' is not merely one
example of a ``segregative effec[t],'' but is elevated to an
independent and essential requirement of its own.  The
policies that must be eliminated are those that (i) are
legacies of the dual system, (ii)  contribute to the racial
identifiability of the State's universities (the same as (i)
and (ii) in Part III), and in addition (iii) do so in a way that
 substantially restrict[s] a person's choice of which institu-
tion to enter (emphasis added).  Ante, at 13.  See also ante,
at 15, 19, 21-23.
       What the Court means by  substantially restrict[ing] a
person's choice of which institution to enter is not clear.
During the course of the discussion in Part IV the require-
ment changes from one of strong coercion ( substantially
restrict, ante, at 13,  interfere, ante, at 21), to one of
middling pressure ( restrict, ante, at 15,  limi[t],'' ante, at
21), to one of slight inducement ( inherent[ly] self-selec[t],
ante, at 15, n. 9,  affect, ante, at 19, 23).  If words have
any meaning, in this last stage of decrepitude the require-
ment is so frail that almost anything will overcome it.
Even an open-admissions policy would fall short of ensuring
that student choice is unaffected by State action.  The
Court's results also suggest that the  restricting-choice
requirement is toothless.  Nothing else would explain how
it could be met by Mississippi's mission designations,
program duplication, and operation of all eight formerly de
jure colleges.  Only a test aimed at state action that
 affects student choice could implicate policies such as
these, which in no way restrict the decision where to attend
college.  (Indeed, program duplication and continuation of
the eight schools have quite the opposite effect; they
multiply, rather than restrict, limit, or impede the available
choices.)  At the end of the day, then, the Court dilutes this
potentially useful concept to the point of such insignificance
that it adds nothing to the Court's test except confusion.  It
will be a fertile source of litigation.
       Almost as inscrutable in its operation as the  restricting-
choice requirement is the requirement that challenged
state practices perpetuate de facto segregation.  That is
 likely met, the Court says, by Mississippi's mission
designations.  Ante, at 21-22.  Yet surely it is apparent that
by designating three colleges of the same prior disposition
(HWIs) as the only comprehensive schools, Mississippi
encouraged integration; and that the suggested alternative
of elevating an HBI to comprehensive status (so that blacks
could go there instead of to the HWIs) would have been an
invitation to continuing segregation.  See Ayers v. Allain,
674 F. Supp. 1523, 1562 (N.D. Miss. 1987) ( Approximately
30% of all black college students attending four-year
colleges in the state attend one of the comprehensive
universities).  It appears, moreover, that even if a particu-
lar practice does not, in isolation, rise to the minimal level
of fostering segregation, it can be aggregated with other
ones, and the composite condemned.  See ante, at 19-20 ( by
treating [the] issue [of program duplication] in isolation, the
[district] court failed to consider the combined effects of
unnecessary program duplication with other policies, such
as differential admissions standards); ante, at 21-22
( when combined with the differential admission practices
and unnecessary program duplication, it is likely that the
mission designations . . . tend to perpetuate the segregated
system).  It is interesting to speculate how university
administrators are going to guess which practices a district
judge will choose to aggregate; or how district judges are
going to guess when disaggregation is lawful.
       The Court appears to suggest that a practice that has
been aggregated and condemned may be disaggregated and
approved so long as it does not itself  perpetuat[e] the
segregated higher education system, ante, at 23"which
seems, of course, to negate the whole purpose of aggregat-
ing in the first place.  The Court says:
 Elimination of program duplication and revision of
admissions criteria may make institutional closure
unnecessary. . . .  [O]n remand, this issue should be
carefully explored by inquiring and determining
whether retention of all eight institutions itself . . .
perpetuates the segregated higher education system,
whether maintenance of each of the universities is
educationally justifiable, and whether one or more of
them can be practicably closed or merged with other
existing institutions.  Ante, at 22-23.
Perhaps the Court means, however, that even if retention
of all eight institutions is found by itself not to  perpetuat[e]
the segregated higher education system, it must still be
found that such retention is  educationally justifiable, or
that none of the institutions can be  practicably closed or
merged.  It is unclear.
       Besides the ambiguities inherent in the  restricting
choice requirement and the requirement that the chal-
lenged state practice or practices perpetuate segregation, I
am not sanguine that there will be comprehensible content
to the to-be-defined-later (and, make no mistake about it,
outcome-determinative) notions of  sound educational
justification and  impracticable elimination.  In short,
except for the results that it produces in the present case
(which are what they are because the Court says so), I have
not the slightest idea how to apply the Court's analy-
sis"and I doubt whether anyone else will.
       Whether one consults the Court's description of what it
purports to be doing, in Part III, ante, at 8-12, or what the
Court actually does, in Part IV, ante, at 13-24, one must
conclude that the Court is essentially applying to universi-
ties the amorphous standard adopted for primary and
secondary schools in Green v. New Kent County School
Board, 391 U. S. 430 (1968).  Like that case, today's
decision places upon the State the ordinarily unsustainable
burden of proving the negative proposition that it is not
responsible for extant racial disparity in enrollment.  See
ante, at 8.  Green requires school boards to prove that
racially identifiable schools are not the consequence of past
or present discriminatory state action, Swann v. Charlotte-
Mecklenburg Bd. of Education, 402 U. S. 1, 26 (1971));
today's opinion requires state university administrators to
prove that racially identifiable schools are not the conse-
quence of any practice or practices (in such impromptu
 aggregation as might strike the fancy of a district judge)
held over from the prior de jure regime.  This will imperil
virtually any practice or program plaintiffs decide to
challenge"just as Green has"so long as racial imbalance
remains.  And just as under Green, so also under today's
decision, the only practicable way of disproving that
 existing racial identifiability is attributable to the State,
ante, at 8, is to eliminate extant segregation, i.e., to assure
racial proportionality in the schools.  Failing that, the
State's only defense will be to establish an excuse for each
challenged practice"either impracticability of elimination,
which is also a theoretical excuse under the Green regime,
see Board of Education of Oklahoma City v. Dowell, 498
U. S. --- (1991) (slip op., at 10-11), or sound educational
value, which (presumably) is not much different from the
 important and legitimate ends excuse available under
Green, see Dayton Board of Education v. Brinkman, 443
U. S. 526, 538 (1979).
                                II
       Application of the standard (or standards) announced
today has no justification in precedent, and in fact runs
contrary to a case decided six years ago, see Bazemore v.
Friday, 478 U. S. 385 (1986).  The Court relies primarily
upon citations of Green and other primary and secondary
school cases.  But those decisions left open the question
whether Green merits application in the distinct context of
higher education.  Beyond that, the Court relies on Brown
I, Florida ex rel. Hawkins v. Board of Control of Fla., 350
U. S. 413 (1956) (per curiam), and Gilmore v. City of
Montgomery, 417 U. S. 556 (1974).  That reliance also is
mistaken.
       The constitutional evil of the  separate but equal regime
that we confronted in Brown I was that blacks were told to
go to one set of schools, whites to another.  See Plessy v.
Ferguson, 163 U. S. 537 (1896).  What made this  even-
handed racial partitioning offensive to equal protection was
its implicit stigmatization of minority students:  To sepa-
rate [black students] from others of similar age and
qualifications solely because of their race generates a
feeling of inferiority as to their status in the community
that may affect their hearts and minds in a way unlikely
ever to be undone.  Brown I, 347 U. S., at 494.  In the
context of higher education, a context in which students
decide whether to attend school and if so where, the only
unconstitutional derivations of that bygone system are
those that limit access on discriminatory bases; for only
they have the potential to generate the harm Brown I
condemned, and only they have the potential to deny
students equal access to the best public education a State
has to offer.  Legacies of the dual system that permit (or
even incidentally facilitate) free choice of racially identifi-
able schools"while still assuring each individual student
the right to attend whatever school he wishes"do not have
these consequences.
       Our decisions immediately following Brown I also fail to
sustain the Court's approach.  They, too, suggest that
former de jure States have one duty: to eliminate discrimi-
natory obstacles to admission.  Brown v. Board of Educa-
tion, 349 U. S. 294 (1955) (Brown II), requires States  to
achieve a system of determining admission to the public
schools on a nonracial basis, id., at 300-301, as do other
cases of that era, see, e.g., Cooper v. Aaron, 358 U. S. 1, 7
(1958); Goss v. Board of Ed. of Knoxville, 373 U. S. 683, 687
(1963).
       Nor do Hawkins or Gilmore support what the Court has
done.  Hawkins involved a segregated graduate school, to be
sure.  But our one-paragraph per curiam opinion supports
nothing more than what I have said: the duty to dismantle
means the duty to establish non-discriminatory admissions
criteria.  See 350 U. S., at 414 ( He is entitled to prompt
admission under the rules and regulations applicable to
other qualified candidates).  Establishment of neutral
admissions standards, not the eradication of all  policies
traceable to the de jure system . . . hav[ing] discriminatory
effects, ante, at 10, is what Hawkins is about.  Finally,
Gilmore, quite simply, is inapposite.  All that we did there
was uphold an order enjoining a city from granting exclu-
sive access to its parks and recreational facilities to
segregated private schools and to groups affiliated with
such schools.  417 U. S., at 569.  Notably, in the one case
that does bear proximately on today's decision, Bazemore,
supra, we declined to apply Gilmore.  See Bazemore, supra,
at 408 (White, J., concurring) ( Our cases requiring parks
and the like to be desegregated lend no support for requir-
ing more than what has been done in this case).
       If we are looking to precedent to guide us in the context
of higher education, we need not go back 38 years to Brown
I, read between the lines of Hawkins, or conjure authority
(Gilmore) that does not exist.  In Bazemore v. Friday, supra,
we addressed a dispute parallel in all relevant respects to
this one.  At issue there was state financing of 4-H and
Homemaker youth clubs by the North Carolina Agricultural
Extension Service, a division of North Carolina State
University.  In the Plessy era, club affiliations had been
dictated by race; after 1964, they were governed by neutral
criteria.  Yet  there were a great many all-white and all-
black clubs at the time suit was filed.  478 U. S., at 407.
We nonetheless declined to adopt Green's requirement that
 affirmative action [be taken] to integrate once segregated-
by-law/still segregated-in-fact state institutions.  478 U. S.,
at 408.  We confined Green to primary and secondary public
schools, where  schoolchildren must go to school and where
 school boards customarily have the power to create school
attendance areas and otherwise designate the school that
particular students may attend.  478 U. S, at 408.   [T]his
case, we said,  presents no current violation of the Four-
teenth Amendment since the Service has discontinued its
prior discriminatory practices and has adopted a wholly
neutral admissions policy.  The mere continued existence of
single-race clubs does not make out a constitutional
violation.  Ibid.
       The Court asserts that we reached the result we did in
Bazemore  only after satisfying ourselves that the State had
not fostered segregation by playing a part in the decision of
which club an individual chose to join, ante, at
11"implying that we assured ourselves there, as the Court
insists we must do here, that none of the State's practices
carried over from de jure days incidentally played a part in
the decision of which club an individual chose to join.  We
did no such thing.  An accurate description of Bazemore was
set forth in Richmond v. J. A. Croson Co., 488 U. S. 469
(1989):  mere existence of single-race clubs . . . cannot
create a duty to integrate, we said Bazemore held,  in
absence of evidence of exclusion by race, 488 U. S., at 503
(emphasis added)"not  in absence of evidence of state
action playing a part in the decision of which club an
individual chose to join.  The only thing we  satisfied
ourselves about in Bazemore was that the club members'
choices were  wholly voluntary and unfettered, 478 U. S.,
at 407"which does not mean the State  play[ed] [no] part
in the decision of which club an individual chose to join,
however much the Court may mush the concepts together
today.  It is on the face of things entirely unbelievable that
the previously established characteristics of the various all-
white and all-black 4-H Clubs (where each of them met, for
example) did not even play a part in young people's deci-
sions of which club to join.
       Bazemore's standard for dismantling a dual system ought
to control here: discontinuation of discriminatory practices
and adoption of a neutral admissions policy.  To use Green
nomenclature, modern racial imbalance remains a  vestige
of past segregative practices in Mississippi's universities, in
that the previously mandated racial identification continues
to affect where students choose to enroll"just as it surely
affected which clubs students chose to join in Bazemore.
We tolerated this vestigial effect in Bazemore, squarely
rejecting the view that the State was obliged to correct  the
racial segregation resulting from [its prior] practice[s].  478
U. S., at 417 (Brennan, J., dissenting in part).  And we
declined to require the State, as the Court has today, to
prove that no holdover practices of the de jure system, e.g.,
program offerings in the different clubs, played a role in the
students' decisions of which clubs to join.  If that analysis
was correct six years ago in Bazemore, and I think it was,
it must govern here as well.  Like the club attendance in
Bazemore (and unlike the school attendance in Green),
attending college is voluntary, not a legal obligation, and
which institution particular students attend is determined
by their own choice, not by ``school boards [who] customarily
have the power to create school attendance areas and
otherwise designate the school that particular students may
attend.''  Bazemore, supra, at 408.  Indeed, Bazemore was
a more appealing case than this for adhering to the Green
approach, since the 4-H Clubs served students similar in
age to those in Green, and had been  organized in the public
schools until the early 1960's.  478 U. S., at 417.
       It is my view that the requirement of compelled integra-
tion (whether by student assignment, as in Green itself, or
by elimination of nonintegrated options, as the Court today
effectively decrees) does not apply to higher education.
Only one aspect of an historically segregated university
system need be eliminated: discriminatory admissions
standards.  The burden is upon the formerly de jure system
to show that that has been achieved.  Once that has been
done, however, it is not just unprecedented, but illogical as
well, to establish that former de jure States continue to
deny equal protection of the law to students whose choices
among public university offerings are unimpeded by
discriminatory barriers.  Unless one takes the position that
Brown I required States not only to provide equal access to
their universities but also to correct lingering disparities
between them, that is, to remedy institutional noncompli-
ance with the  equal requirement of Plessy, a State is in
compliance with Brown I once it establishes that it has
dismantled all discriminatory barriers to its public universi-
ties.  Having done that, a State is free to govern its public
institutions of higher learning as it will, unless it is
convicted of discriminating anew"which requires both
discriminatory intent and discriminatory causation.  See
Washington v. Davis, 426 U. S. 229 (1976).
       That analysis brings me to agree with the judgment that
the Court of Appeals must be reversed in part"for the
reason (quite different from the Court's) that Mississippi
has not borne the burden of demonstrating that intentional-
ly discriminatory admissions standards have been eliminat-
ed.  It has been established that Mississippi originally
adopted ACT assessments as an admissions criterion
because that was an effective means of excluding blacks
from the HWIs.  See Ayers v. Allain, 674 F. Supp., at 1555;
Ayers v. Allain, 914 F. 2d 676, 690 (CA5 1990) (en banc).
Given that finding, the District Court should have required
Mississippi to prove that its continued use of ACT require-
ments does not have a racially exclusionary purpose and
effect"a not insubstantial task, see Freeman v. Pitts, 503
U. S. ---, --- (slip op., at 4) (Scalia, J., concurring).
                                III
       I must add a few words about the unanticipated conse-
quences of today's decision.  Among petitioners' contentions
is the claim that the Constitution requires Mississippi to
correct funding disparities between its HBIs and HWIs.
The Court rejects that, see ante, at 23"as I think it should,
since it is students and not colleges that are guaranteed
equal protection of the laws.  See Sweatt v. Painter, 339
U. S. 629, 635 (1950); Missouri ex rel. Gaines v. Canada,
305 U. S. 337, 351 (1938).  But to say that the Constitution
does not require equal funding is not to say that the
Constitution prohibits it.  The citizens of a State may
conclude that if certain of their public educational institu-
tions are used predominantly by whites and others predomi-
nantly by blacks, it is desirable to fund those institutions
more or less equally.
       Ironically enough, however, today's decision seems to
prevent adoption of such a conscious policy.  What the
Court says about duplicate programs is as true of equal
funding: the requirement  was part and parcel of the prior
dual system.  Ante, at 19.  Moreover, equal funding, like
program duplication, facilitates continued segregation enabling
students to attend schools where their own race
predominates without paying a penalty in the quality of
education.  Nor could such an equal-funding policy be saved
on the basis that it serves what the Court calls a  sound
educational justification.  The only conceivable educational
value it furthers is that of fostering schools in which blacks
receive their education in a  majority setting; but to
acknowledge that as a  value would contradict the compul-
sory-integration philosophy that underlies Green.  Just as
vulnerable, of course, would be all other programs that have
the effect of facilitating the continued existence of predomi-
nantly black institutions: elevating an HBI to comprehen-
sive status (but see ante, at 20-22, where the Court
inexplicably suggests that this action may be required);
offering a so-called Afrocentric curriculum, as has been
done recently on an experimental basis in some secondary
and primary schools, see Jarvis, Brown and the Afrocentric
Curriculum, 101 Yale L. J. 1285, 1287, and n. 12 (1992);
preserving eight separate universities, see ante, at 22-23,
which is perhaps Mississippi's single policy most segrega-
tive in effect; or providing funding for HBIs as HBIs, see
Pub. L. 99-498, Title III, 301(a), 100 Stat. 1294, 20
U. S. C. 1060-1063c, which does just that.
       But this predictable impairment of HBIs should come as
no surprise: for incidentally facilitating"indeed, even
tolerating"the continued existence of HBIs is not what the
Court's test is about, and has never been what Green is
about.  See Green, 391 U. S., at 442 ( The Board must be
required to formulate a new plan and . . . fashion steps
which promise realistically to convert promptly to a system
without a 'white' school and a 'Negro' school) (footnote
omitted).  What the Court's test is designed to achieve is
the elimination of predominantly black institutions.  While
that may be good social policy, the present petitioners, I
suspect, would not agree; and there is much to be said for
the Court of Appeals' perception in Ayers, 914 F. 2d, at 687,
that  if no [state] authority exists to deny [the student] the
right to attend the institution of his choice, he is done a
severe disservice by remedies which, in seeking to maximize
integration, minimize diversity and vitiate his choices.  But
whether or not the Court's antagonism to unintegrated
schooling is good policy, it is assuredly not good constitu-
tional law.  There is nothing unconstitutional about a
 black school in the sense, not of a school that blacks must
attend and that whites cannot, but of a school that, as a
consequence of private choice in residence or in school
selection, contains, and has long contained, a large black
majority.  See McLaurin v. Oklahoma State Regents for
Higher Ed., 339 U. S. 637, 641 (1950).  (The Court says
this, see ante, at 23, but does not appear to mean it, see
ante, at 10, n. 4).  In a perverse way, in fact, the insistence,
whether explicit or implicit, that such institutions not be
permitted to endure perpetuates the very stigma of black
inferiority that Brown I sought to destroy.  Not only
Mississippi but Congress itself seems out of step with the
drum that the Court beats today, judging by its passage of
an Act entitled  Strengthening Historically Black Colleges
and Universities, which authorizes the Education Depart-
ment to provide money grants to historically black colleges.
20 U. S. C. 1060-1063c.  The implementing regulations
designate Alcorn State University, Jackson State Universi-
ty, and Mississippi Valley State University as eligible
recipients.  See 34 CFR 608.2(b) (1991).
                                ***
       The Court was asked to decide today whether, in the
provision of university education, a State satisfies its duty
under Brown I by removing discriminatory barriers to
admissions.  That question required us to choose between
the standards established in Green and Bazemore, both of
which cases involved (as, for the most part, this does) free-
choice plans that failed to end de facto segregation.  Once
the confusion engendered by the Court's something-for-all,
guidance-to-none opinion has been dissipated, compare ante,
(O'Connor, J., concurring), with ante, (Thomas, J., concur-
ring), it will become apparent that, essentially, the Court
has adopted Green.
       I would not predict, however, that today's opinion will
succeed in producing the same result as Green"viz.,
compelling the States to compel racial  balance in their
schools"because of several practical imperfections: because
the Court deprives district judges of the most efficient (and
perhaps the only effective) Green remedy, mandatory
student assignment, see ante, at 10, n. 4; because some
contradictory elements of the opinion (its suggestion, for
example, that Mississippi's mission designations foster,
rather than deter, segregation) will prevent clarity of
application; and because the virtually standardless discre-
tion conferred upon district judges (see Part I, supra) will
permit them to do pretty much what they please.  What I
do predict is a number of years of litigation-driven confu-
sion and destabilization in the university systems of all the
formerly de jure States, that will benefit neither blacks nor
whites, neither predominantly black institutions nor
predominantly white ones.  Nothing good will come of this
judicially ordained turmoil, except the public recognition
that any Court that would knowingly impose it must hate
segregation.  We must find some other way of making that
point.


