United States v. Fordice: The Mississippi Aftermath

Dannye Holley ^(*) & L. Darnell Weeden^(**)

I. Introduction

In 1992, the United States Supreme Court decided United States v. Fordice⁽¹⁾ (Fordice I)--an opinion on the current constitutionality of the formerly de jure segregated state higher education system of Mississippi.⁽²⁾ The opinion can be characterized as a directive to the State of Mississippi, and by analogy to other similarly situated states, that they still have a constitutional duty to eliminate or diminish all significant vestiges of the prior de jure segregated system of higher education, or to prove that sound educational policy and/or necessity warrant retention to some degree of such a vestige.⁽³⁾

The key premise of this Article is that the true significance of Fordice I, like many other United States Supreme Court decisions, is the quality of guidance it provides to the states, prospective plaintiffs, lawyers for the parties, and trial and appellate judges with regard to the standards that they should use to determine if a former de jure segregated state system of higher education remains unconstitutional.⁽⁴⁾ Given this premise, the first objective of this Article is to identify and evaluate the guidance that can be gained from Justice White's majority opinion in Fordice I. Part II of this Article is devoted to accomplishing this objective.⁽⁵⁾

The second objective of this Article is to identify the impact and lessons that the defendant, the State of Mississippi, the plaintiffs, and the trial judge in fact drew from Fordice I.⁽⁶⁾ Part III of this Article is devoted to accomplishing this objective.⁽⁷⁾

The third and final objective of this Article is to predict, in light of the apparent Fordice I guidance and how that guidance was interpreted/used by the key players in the Mississippi remand, the likely outcome of Ayers v. Fordice⁽⁸⁾ (Fordice II) should it return to the United States Supreme Court. Part IV is devoted to accomplishing this objective.⁽⁹⁾

II.  Evaluating Fordice I as Guidance

Fordice I held that states, which until the mid-1950s racially segregated their state higher education systems by law, have the burden of proving, forty years after their racially discriminatory systems were declared unconstitutional, that they have dismantled that system.⁽¹⁰⁾ The majority opinion in Fordice I required the states to therefore prove that they have eliminated or diminished remnants of that de jure system that continue to have segregative effect; or justify on grounds of necessity and/or sound educational policy why such vestiges cannot be so eliminated or diminished.⁽¹¹⁾ The Court identified four such vestiges, acknowledged the possibility that there may be others, and remanded the case to the federal district and appeals courts to apply the standards it had articulated for the first time in its opinion.⁽¹²⁾

We turn next to an evaluation of the precedent bases of the majority opinion in Fordice I. The most significant precedent decision made by the eight-person majority, which led to this holding, was choosing to follow Brown v. Board of Education⁽¹³⁾ and its remedy progeny, rather than Bazemore v. Friday.⁽¹⁴⁾ with regard to the scope of the duty states, which segregated their systems of education, have to end racial segregation in public education.⁽¹⁵⁾

There are two significant justifications that the Court could have relied upon in choosing the more sweeping remedy of Brown and its progeny rather than the more limited Bazemore remedy. First, the nature of the injuries suffered by the plaintiffs and their ancestors in Fordice were more like the injuries suffered by the plaintiffs in Brown. Those injuries were apartheid stigma, multi-generational denial of equal educational opportunity, and their interactive effects.⁽¹⁶⁾ Second, Mississippi had done nothing significant in the intervening forty years since Brown, to improve racial integration in the state system of higher education, except eventually obey Brown's order to end racial segregation by law.⁽¹⁷⁾ In fact, Mississippi had undertaken at least two affirmative steps in the intervening period that had the effect of perpetuating racial segregation in its system of higher education.⁽¹⁸⁾

Yet, the Court ignored completely the focus on a comparative evaluation of the "nature of the injury" rationale, and by implication rejected the second rationale by indicating that sometimes a former de jure state need do no more than cease segregation by law, as long as nothing else they have done or are doing is currently influencing the de facto segregation.⁽¹⁹⁾ Distinguishing Bazemore on this basis is tantamount to putting forth the proposition that sometimes a state must dismantle and sometimes a state need not dismantle, and the historical evidence/evidence standard that is the basis for deciding which of these paths a former de jure state must follow is obscure.

The second most significant precedent decision made by the majority was to follow prior decisions that held that Title VI of the Civil Rights Act of 1964 provided no greater protection, hence no greater remedy than the Equal Protection Clause of the Fourteenth Amendment.⁽²⁰⁾ This precedent decision is significant because it explains why the opinions in Fordice ignored the negotiations and consent agreements, based upon Title VI of the Civil Rights Act of 1964, fashioned by the Office of Civil Rights, of the United States Department of Education, with several states that historically had de jure racially segregated systems of higher education.⁽²¹⁾ While the majority opinion did begin by recounting the effort of the federal government, beginning in 1969, to enforce Title VI against Mississippi with respect to desegregating its state system of higher education (an effort that ultimately failed) there is almost no discussion of the substance of these negotiations in any of the opinions.⁽²²⁾

A. Fordice Criteria to Identify Vestiges of Prior De Jure Segregation

This subsection identifies and evaluates the criteria articulated in the majority opinion in Fordice that litigants and courts should employ to identify vestiges of a prior de jure segregated system of higher education and its continuing constitutional significance. In this section, we synthesize the key lessons from Fordice I, in an attempt to cast the guidance provided by the majority opinion in the most favorable light.⁽²³⁾

A "vestige" of the de jure segregation era of state higher education is a state policy or practice of omission or commission adopted during that period.⁽²⁴⁾ Arguably, a post-Brown newly enacted policy or practice, enacted in the wake of the mandate to end legally required segregation, hence very likely enacted to perpetuate racial segregation in the universities, is also a vestige.⁽²⁵⁾

Vestiges have current racially segregative effect when they remain a significant contributing independent factor, or in combination with other vestiges constitute such a contributing factor, to the continuing racial segregation in student enrollment in the state university system, or in some other significant element of that system.⁽²⁶⁾ The majority opinion failed, however, to expressly identify either how it measured the contribution to the continuing segregation of the Mississippi state higher education system made by a vestige or combination of vestiges, nor the basis for characterizing the contribution as significant.⁽²⁷⁾

The Court also indicated that Mississippi might be able to make a sufficient showing of educational policy necessity, which would leave little option but to leave some or all of a vestige in place.⁽²⁸⁾ It failed, however, to provide illustrations of what would constitute such an educational policy necessity. The majority opinion provided some indication that the Court would defer to a lower court finding of educational policy necessity, but also indicated that the state would not be able to simply assert that it lacked the funding to take the significant steps needed to dismantle vestiges of the de jure system.⁽²⁹⁾ The Court also failed to identify the current harm(s) being suffered and who was suffering injury as a result of the continuation into the 1990s of the de facto segregation of Mississippi's higher education system, some forty years after the supposed end of de jure segregation.⁽³⁰⁾

B. Fordice I Constitutional Criteria As Applied

We turn next to examining how the Fordice I majority applied its constitutional criteria. This subsection examines why the majority opinion found each of the four policies it identified qualified presumptively as remnants. We also examine the Court's basis for concluding that each currently contributed to the continuing segregation of the Mississippi State Higher Education System, its sense of the significance of that contribution, and the degree to which the majority opinion estimated the possibility and wisdom of the elimination and/or diminution of each will be examined. We begin with the differential admissions standards.

The continuing use of more rigorous automatic admission standards by the historically white universities (particularly the universities with the same institutional mission as the Historically Black Universities) in comparison to the Historically Black Universities was declared presumptively to be a vestige by the Court, because of its apparent original post-Brown purpose to perpetuate segregation by serving as at least a partial substitute for de jure segregation.⁽³¹⁾ While the Court found that the admission standards were having a current segregative effect, it failed, however, to specifically identify the current segregative effect that could be attributed to differences in the automatic admission policies, and failed to expressly acknowledge that the only plausible segregative effect of these standards would be to keep African-Americans from attending historically white universities, not White-Americans from attending Historically Black Universities.⁽³²⁾ The majority opinion concluded that the state was required to provide stronger educational policy justification for all of its differential automatic admission standards, and identified one alternative to basing automatic admissions solely on standardized test scores.⁽³³⁾

The majority opinion found the hierarchial "Mission Statements" scheme designed by the Mississippi Board of Trustees in 1981 was presumptively a vestige, because it was substantially the same hierarchy established in the de jure segregation era.⁽³⁴⁾ The Court failed to identify any evidence to use as a basis for projecting the current independent segregative effect of the hierarchial mission scheme; instead suggesting that the lower court consider its potential effect in combination with the differential admission standards and unnecessary duplication of programs.⁽³⁵⁾ Hence, the Court missed its best opportunity to direct the lower courts and Mississippi to come to grips with the most salient reason for racial segregation of Mississippi's universities, the failure of white Mississippi students to apply and enroll at the three Historically Black Universities.⁽³⁶⁾ The majority opinion also failed to expressly discuss the relative ability of Mississippi to modify its mission's hierarchial scheme.

The Court accepted the district court's sui generis and puzzling definition of "unnecessary" duplication of programs, and then fell into, arguably, an inherent contradiction by identifying it presumptively as a vestige of the de jure system, because the original dual racial system by definition created unnecessary duplication of programs.⁽³⁷⁾ The majority opinion found that because the district court had erroneously placed the burden of proof on the plaintiffs to prove that the unnecessary duplication of programs had a segregative effect, it had failed to require Mississippi to introduce evidence that it was not having such an effect.⁽³⁸⁾ The Court made reference to the district court finding that there was no educational policy justification for the unnecessary duplication of programs, and then speculated, without reference to evidence, that such programs could be eliminated.⁽³⁹⁾

The majority opinion found the continuing existence of all eight state universities, three historically black and five historically white, to be a vestige of the de jure era by first reviewing the history of their establishment--all eight were established in the pre-1954 de jure segregation era.⁽⁴⁰⁾ Subsequently, the majority opinion implied, with little evidential support, that maintenance of all eight universities was unwarranted given the state finances available, and could possibly have a segregative effect by influencing student choice.⁽⁴¹⁾ It is little wonder, therefore, that the Court concluded that the current record would not support a conclusion that closure of any of the universities was constitutionally mandated.⁽⁴²⁾

III.  Identifying the Lessons Plaintiffs, Defendant Mississippi, and the Trial Court Learned from the Fordice I Decision

A. Lessons Learned by the United States Government, as Institutional Plaintiff

The authors, to identify the lessons learned by the United States, as institutional plaintiff from the Fordice I decision, studied the interrogatories, requests for documents, and most significantly a list of "Current Remnants" the United States filed when the case was remanded to the federal District Court for retrial.⁽⁴³⁾ In its remnants document, the United States listed forty-six such remnants, and generally alleged that they were remnants because they were each traceable to the dual system.⁽⁴⁴⁾ Apparently ignoring the guidance provided by Fordice, the United States offered no specific evidence to prove that each/any of the identified remnants was traceable to the prior de jure system, or were enacted to preserve that system.⁽⁴⁵⁾

Of the forty-six remnants alleged by the United States, five were references to the four presumptive vestiges identified by the Supreme Court in the Fordice I opinion or elements of one of those vestiges, and forty-one were "new" remnants or elements of a "new" remnant. The references to the Supreme Court remnants were very conclusionary, for the most part simply restating three of the four remnants as found by the Court, and failing to take any position with regard to the elimination of one or more of the universities.⁽⁴⁶⁾

Of the new remnants/elements of new remnants alleged by the United States, two were entitled "Failure to Address the Remediation of the Dual Systems;" five were entitled "Policies and Practices Concerning the Governance of the System;" eight were headed "Policies and Practices Concerning Admissions and Student Access;" and almost all of the remaining twenty-six were headed "Policies and Practices Bearing upon the Ability of the Historically Black Institutions to Attract Diverse Student Populations."⁽⁴⁷⁾ Hence, the United States remnant list did focus on two critical residual issues unresolved by the United States Supreme Court in Fordice I--Mississippi's forty-year failure to develop a good-faith overall plan to dismantle its segregated system, and its failure to ever take significant steps to remove the stigma and presumption of inferiority from its three Historically Black Universities so as to begin to cure the almost total failure of white Mississippi students to choose to attend them.⁽⁴⁸⁾ The major thrust of the United States' position in the identification and ordering of these remnants was that multiple, system-wide omissions, including long-term underfunding (such as funding formulas, pay, and facilities); programmatic inadequacies (including long-term failure to gain accreditation for Historically Black University programs and schools, as well as allocation of degree programs in a manner disadvantageous to Historically Black Universities); location of institutions of higher education decisions, employment; and other barriers made the historically the black universities unequal and hence very unattractive choices for Mississippi white students.⁽⁴⁹⁾

The United States demonstrated that it had learned a key lesson from the Supreme Court's Fordice I opinion, by alleging generally that the identified remnants each was a cause of segregation in the current Mississippi higher education system, and that this effect was exacerbated by the interactive effect between some of the remnants.⁽⁵⁰⁾ The United States, however, consistent with a major flaw of the Fordice I opinion, failed in the document to make reference to general or specific evidence that would be introduced at trial to establish the segregative effect of any of the identified remnants, or the interactive segregative effect of any combination of the remnants.⁽⁵¹⁾

B. Lessons Learned by the Private Plaintiffs

To identify the lessons the private plaintiffs learned from the Fordice I opinion, we studied their "Revised List of Remnants," their "Response to the Board of Trustees Proposed Stipulation Regarding Remnants," pretrial motions and other procedural documents filed by the private plaintiffs on remand of the case to the United States District Court.⁽⁵²⁾ In their documents the private plaintiffs identified approximately the same number of remnants as did the United States, forty-six; but while very similar to the government's list in number and categorization, there were some differences.⁽⁵³⁾

Of the forty-six remnants alleged by the private plaintiffs, only four were references to the four presumptive vestige's or elements thereof, identified by the Supreme Court in the Fordice I opinion, or elements of one of those vestiges.⁽⁵⁴⁾ The private plaintiffs' references to the Supreme Court remnants, like those of the United States, were very conclusionary; for the most part simply restating three of the four remnants as found by the Court, and omitting any express reference to the elimination of one or more of the universities.⁽⁵⁵⁾

Of the new remnants/elements of new remnants alleged by the private plaintiffs, the headings were almost identical to those used by the United States.⁽⁵⁶⁾ Six were headed "Policies and Practices Concerning the Governance of the System," twelve were headed "Policies and Practices Concerning Admissions and Student Access;" twenty were headed "Policies and Practices Bearing upon the Ability of the Historically Black Institutions to Attract Diverse Student Populations," and four were headed "Employment."⁽⁵⁷⁾ Hence, the private plaintiffs' remnant list, like the United States, did focus on a critical residual issue unresolved by the United States Supreme Court in Fordice I--the greatest factual reason for the continuation of a segregated state higher educational system--the almost total failure of white Mississippi students to choose to attend the Historically Black Universities.⁽⁵⁸⁾

The private plaintiffs, like the United States, identified the same multiple remnant types, and specific elements of those remnants that resulted in the Historically Black Universities remaining unequal, and hence very unattractive choices to Mississippi white students.⁽⁵⁹⁾ Like the United States, the private plaintiffs apparently took a risk based on the ambiguity in Justice White's majority opinion in Fordice I, hence, making no reference to specific sources of evidence that would be introduced at trial to prove that any of the new alleged remnants were traceable to the prior de jure system or were enacted to preserve that system.⁽⁶⁰⁾

The private parties, however, unlike the United States, did allege facts to support the existence of some of its alleged new remnants.⁽⁶¹⁾ Unlike the United States, the private plaintiffs failed to demonstrate that they had learned a key lesson from the Fordice opinion, omitting general allegations that the identified remnants each was a cause of segregation in the current higher educational system of Mississippi, and/or that this effect was created or exacerbated because of the interactive effect between some of the remnants.⁽⁶²⁾ Consistent with a major flaw of the Fordice opinion, and the United States' position on remand, no general or specific evidence sources were identified by the private plaintiffs that would be used to prove the segregative effect of any of the identified remnants or the interactive segregative effect of any combination of the remnants.⁽⁶³⁾

C. Lessons Learned by the Defendant, State of Mississippi

To identify the lessons learned by the defendant, the State of Mississippi, from the Fordice I opinion, we studied its Board of Trustees of State Institutions of Higher Learning "Proposed Remedies;" its "Responses to List of Current Remnants Submitted by the United States;" its "Responses to List of Current Remnants Submitted by the private plaintiffs;" and pretrial motions and other procedural documents filed by the State of Mississippi on remand of the case to the United States District Court.⁽⁶⁴⁾ The principal Mississippi response to the four "Fordice" identified remnants was found in the "Proposed Remedies" document.⁽⁶⁵⁾

With regard to disparate, potentially segregative automatic admission standards, Mississippi proposed that it would completely abandon those standards as of 1995, and replace them with a uniform, tiered admissions system for all four-year universities.⁽⁶⁶⁾ The tiered system began with an automatic admission standard that created three bases for automatic admission, one of which abandoned any reliance on standardized test scores; instead relying on a grade point average of 3.2 in a "College Prepatory Curriculum" (CPC).⁽⁶⁷⁾ The other two automatic admission bases retained partial reliance on minimum performance on the same standardized test as the prior standards, coupled with grade point averages on the CPC, while one of these bases also relied on class rank.⁽⁶⁸⁾ Mississippi failed, however, to include in its proposal a comparative analysis of how Mississippi's black and white students would collectively fare under each of these automatic admission options.⁽⁶⁹⁾

Mississippi next created a system-wide second-tier basis for admission it characterized as "conditional admission."⁽⁷⁰⁾ Successful performance on a standardized screening test, the College Placement Examination (CPE), was required.⁽⁷¹⁾ Students were also required to attend pre-admission screening/counseling sessions at the campus they wished to attend prior to taking the CPE and their admission was still conditioned on a year-long participation in an Academic Support Program.⁽⁷²⁾ Mississippi failed again, however, to include in its proposal an analysis and evidence of how this element of its revised admissions proposal would cure the lingering de jure injuries to African-Americans or what could be done to assure uniform and fair administration by all the universities, or a projection of its desegregative impact--how Mississippi's African-American high school students, most of whom would have to qualify for university admission via this second tier, were likely to fare on this CPE.⁽⁷³⁾

Mississippi next proposed a third and final admissions option for those students who did not gain admission to a university through automatic admission, and who failed the CPE related option--attendance and successful "exiting" of a Summer Remedial Program.⁽⁷⁴⁾ A student who successfully exited the Summer Remedial Program was admitted to the fall semester, subject to the condition of a one-year long participation in the Academic Support Program.⁽⁷⁵⁾ Mississippi failed again, however, to include in its proposal an analysis and evidence of how this element of its proposal would cure the lingering de jure injury to African-Americans, or what would be done to assure uniform and fair administration by all the universities, or its desegregative impact--how Mississippi's African-American high school students, most of whom may qualify for university admission via this third tier, were likely to fare in this summer remediation program.⁽⁷⁶⁾

Finally, the Mississippi proposal also made reference to the admission standards for transferring from a Mississippi junior college to a Mississippi university.⁽⁷⁷⁾ It noted that no standardized test would be required for university admission of such transferees/junior college graduates, and that admission standards (unspecified) for students were extremely modest.⁽⁷⁸⁾ Mississippi again failed to include an assessment of how this transfer policy was likely to lessen racial stigma or segregation, or enhance equal educational opportunity.⁽⁷⁹⁾

With respect to the three highly interrelated Fordice II remnants--differential mission statements, unnecessary duplication of programs, and possible merger or closure of one or more of the eight existing universities--Mississippi proposed a series of remedies. First, Mississippi proposed to merge two of its most geographically proximate universities, Delta State University and Mississippi Valley State University to form Delta Valley University.⁽⁸⁰⁾ The effect of the merger would be to end the physical existence of Mississippi Valley State University, one of the three Historically Black Universities, because under the proposal that campus would be closed, and operation of the merged university carried on only at the campus of Delta State University.⁽⁸¹⁾

Second, Mississippi proposed to elevate Jackson State University, one of its three Historically Black Universities, to a Level 1 research university, to join the three historically white universities--the three universities with a long-standing history of a broad research mission.⁽⁸²⁾ Third, Mississippi proposed to make administrative units of each of its remaining three primarily undergraduate universities with three of its four (Jackson State University omitted) research universities.⁽⁸³⁾ Fourth, with regard to unnecessary program duplication, Mississippi proposed a review of the costs and benefits of remaining undergraduate and graduate programs.⁽⁸⁴⁾ Mississippi failed to include an assessment of how the merger, the administrative integrations, the enhancements at Jackson State University, and the program review were likely to lessen racial stigma or segregation, or enhance equal educational opportunity.⁽⁸⁵⁾

The principal Mississippi response to the plaintiffs' allegations of new remnants was found in its "Response to List of Current Remnants Submitted by the United States."⁽⁸⁶⁾ The Fordice I opinion suggested that Mississippi could defend against alleged remnants on at least three levels.⁽⁸⁷⁾

First, Mississippi could allege and seek to prove that the plaintiffs' remnant was never a specific state policy or practice, was a current practice or policy not traceable to the former de jure system, or was a de jure practice or policy that had been remedied or substantially remedied.⁽⁸⁸⁾ Mississippi made allegations at this policy level in responding to thirty-three of thirty-nine new remnants alleged by the United States and the private plaintiffs.⁽⁸⁹⁾ Mississippi misinterpreted the Fordice opinion, however, by also seeking to attack several of the plaintiffs' alleged new remnants on the independent grounds that the alleged remnant was not a current policy or practice of the state.⁽⁹⁰⁾

In contrast to the failure of the United States and private parties to present systematic evidence in their pre-trial documents to support its allegations, Mississippi provided factual support the majority (twenty-one of thirty-three) of the time, it alleged that the new remnant that the plaintiffs identified, failed at least one of the three policy tests identified herein.⁽⁹¹⁾ Mississippi only rarely (four of thirty-nine), however, relied on the first of these policy defenses by arguing a plaintiffs' new remnant was never a specific state policy or practice, and failed to provide factual support when it relied on this defense.⁽⁹²⁾ Mississippi defended by arguing that a plaintiffs' remnant, even if a current practice or policy, was not traceable to the former de jure system with regard to just over half (twenty of the thirty-nine) the new remnants alleged by the plaintiffs, and presented factual support about a third of the time, (seven of the twenty) it made this argument.⁽⁹³⁾ Mississippi defended by arguing that the plaintiffs' remnant was a practice or policy that had been remedied or substantially remedied with regard to almost half (eighteen of the thirty-nine) of the new remnants alleged by the plaintiffs, and presented factual support every time, except once, that it made this argument.⁽⁹⁴⁾ Of course, Mississippi could make inconsistent arguments and allege any two, or all three of these defenses with regard to any given plaintiffs' alleged new remnant. This was a tactic Mississippi employed in response to one-third of the new remnants alleged by the plaintiffs.⁽⁹⁵⁾

Second, Mississippi could allege and seek to prove that a new remnant alleged by the plaintiffs was not currently having a significant independent or interactive segregative effect.⁽⁹⁶⁾ Mississippi made this argument with regard to over three quarters of the plaintiffs' new remnants, but failed in every instance to present factual support for its reliance on this defense.⁽⁹⁷⁾ Mississippi in relying on this defense, particularly with respect to the majority of plaintiffs' remnants--which focused on the comparative fiscal, physical, and programmatic deficiencies of the Historically Black Universities, was clearly relying on the inference that no current change would prompt a significant number of whites to apply to Historically Black Universities.⁽⁹⁸⁾

Third, Mississippi could allege and seek to prove that a current remnant was warranted by sound educational policy, and/or necessity.⁽⁹⁹⁾ Mississippi defended by arguing a plaintiffs' current remnant was warranted by sound educational policy and/or necessity with regard to a majority (twenty-two out of thirty-nine) of the new remnants alleged by the plaintiffs, but presented factual support less than half of the time that it made this argument.⁽¹⁰⁰⁾

In summarizing the highlights of Mississippi's reading of the Fordice I opinion, the first critical point is with regard to proposed uniform admission standards. The Fordice I majority specifically focused constitutional concern on the perception created by significant differentials in the automatic admission of black and white students to Mississippi universities, and what it signals with regard to stigma.⁽¹⁰¹⁾ The revised Mississippi admissions system does almost nothing to alleviate that concern.⁽¹⁰²⁾ This is especially true in light of the nature of the only two admissions options for a far greater percentage of African-American Mississippi students than white Mississippi students. These were "conditional" admissions programs: one requiring an undefined successful passage of another standardized test, the other requiring an unspecified and perhaps not uniform successful completion of a summer "remedial" program; and both requiring as a condition subsequent, year-long participation in an Academic Support Program.⁽¹⁰³⁾

The second critical point in assessing the Mississippi defense is that the state substantially disregarded the Fordice I mandate to prove it had dismantled the former de jure system of higher education, at least with regard to the new remnants identified in the plaintiffs' remand allegations. For example, scholars, if not the plaintiffs in this case, had documented that during the de jure period, blacks, solely because of their race, were relegated to the three universities, which were by state design, fiscally, physically, and programmatically inferior to their white counterparts.⁽¹⁰⁴⁾ Mississippi failed to prove that since Brown it had eliminated this racial stigma by curing these deficiencies so as to make the three Historically Black Universities attractive choices for both black and white students. Instead, Mississippi responded by simply asserting that it had ceased deliberately underfunding Historically Black Universities, and with regard to some of the remnants, had closed some of the gap. Finally, Mississippi repeatedly failed to specifically assess the effect on racial segregation of its Proposed Remedial Plan, and argued, but failed to offer any significant proof, that almost none of the new remnants alleged by the plaintiffs had a current segregative effect.⁽¹⁰⁵⁾

D.  Lessons Learned by the Trial Judge from Fordice I

The parties took their theories of the case on remand back to trial in May, 1994 (Fordice II).⁽¹⁰⁶⁾ This trial, before the same federal district judge, Judge Neil Biggers, Jr., who presided over the first trial in 1987, lasted ten weeks.⁽¹⁰⁷⁾ To evaluate Judge Biggers' interpretation of Fordice I, his reliance thereon, and the degree to which he adopted the theories of the case of the parties on remand, we turn next to his March, 1995 decision.⁽¹⁰⁸⁾

Judge Biggers began his opinion by making specific reference to what he apparently believed were the key elements in the Fordice I opinion that constituted the standard he was to follow on remand.⁽¹⁰⁹⁾ He failed to mention at this point that the sequential guidelines of the Fordice I opinion must be followed in assessing whether a policy was a remnant, its segregative effect, or an educational justification, nor did Judge Biggers seek to identify any working rules the Supreme Court opinion suggested with regard to application of these standards.⁽¹¹⁰⁾ While he recognized that the Fordice I opinion required that the state make the best efforts to dismantle the prior de jure system of higher education, he made no direct reference in this initial restatement to the fact that the Fordice I opinion expressly placed the burden of persuasion on the state to prove that it had in fact made such best efforts.⁽¹¹¹⁾ Hence he made no express reference to the fact that it is the state which has the burden of persuasion with regard to proving that an alleged remnant was never a state policy of omission or commission, lacked de jure segregation roots, was cured, was not currently having independently or interactively a significant segregative effect, or was warranted by necessity and/or educational policy.⁽¹¹²⁾

Judge Biggers also failed to make express reference, in his initial restatement of Fordice I, to the four presumptive remnants of the de jure system identified in that opinion.⁽¹¹³⁾ Judge Biggers made no attempt to evaluate why the United States Supreme Court found them as remnants, especially since in his 1987 opinion, he had decided that none of the state policies violated the national constitution.⁽¹¹⁴⁾ The failure to restate the burden of proof and key substantive guidance of Fordice I at the beginning of his Fordice II opinion would significantly impact Judge Biggers' evaluation of the evidence, Mississippi's Proposed Remedies Plan and the plaintiffs reaction to it, the new allegations of remnants made by the plaintiffs and Mississippi's defenses to them, and therefore his ultimate decision in the case.⁽¹¹⁵⁾ In fact, he waited until the end of his opinion to fully restate the details of the Fordice I opinion.⁽¹¹⁶⁾

After his cursory review of Fordice I at the outset of his opinion, Judge Biggers provided his summary of the parties' positions on remand.⁽¹¹⁷⁾ He began with defendant Mississippi's arguments, summarizing them as asserting that the "proposed remedies plan" had dismantled the prior de jure system with regard to the Fordice I identified remnants, and that any new remnants alleged by the plaintiffs were precluded by his 1987 decision or by Fordice I's standards.⁽¹¹⁸⁾ He cited to no specific Mississippi documents or trial evidence as authority for his summary.

He summarized the plaintiff parties' position as asserting that the "proposed remedies plan" would not cure the continuing segregative effects of past discriminatory policies; and that other policies identified in 1987 and during the course of the remand proceedings were also remnants--policies traceable to the de jure period that continue to have a segregative effect.⁽¹¹⁹⁾ He cited to no specific plaintiff documents or trial evidence as authority for his summary. Next, Judge Biggers indicated that he would first address the alleged remnants, practices, and policies as they coincide with the areas outlined by Fordice I.⁽¹²⁰⁾

In the section of his opinion ostensibly devoted to evaluating the new remnants alleged by the plaintiffs, made only eleven express references to the majority opinion in Fordice I in the approximately forty pages of this section of the opinion.⁽¹²¹⁾ Almost all (nine of eleven) of the express references, however, were in fact in the context of his reassessment of the four presumptive remnants found in Fordice I, as he interwove these reassessments into the fabric of this section of his opinion.⁽¹²²⁾ Judge Biggers, in the section of his opinion ostensibly evaluating the alleged new remnants, made four express references to the Fordice I majority's three-level sequence for assessing whether an alleged remnant was in fact, at least presumptively, an unconstitutional remnant.⁽¹²³⁾

A significant consequence of Judge Biggers' reassessment of the four Fordice II presumptive remnants was, unlike in 1987, that he ultimately concluded that all four were remnants of the de jure era, and that all (in some variant) continued to have segregative effect.⁽¹²⁴⁾ This was a startling conclusion because during Judge Biggers detailed reassessment of the four Fordice I presumptive remnants, his view was that Fordice did not preclude de novo examination of the definition of those remnants, whether these remnants were having segregative effect singly or in combination with each other, or were capable of reform consistent with sound educational policy.⁽¹²⁵⁾ Hence, elements of the four Fordice presumptive remnants were found by Judge Biggers to be unconnected to the de jure era, despite strong indications in the Fordice I majority opinion to the contrary.⁽¹²⁶⁾

Judge Biggers also rarely noted the Fordice I guideline that a state policy in interaction with other state policies could have a significant segregative effect, and even when he did note this guideline he did so while discussing the four Fordice presumptive remnants, and disregarded some of the interactive segregation findings of the majority opinion in Fordice I.⁽¹²⁷⁾ He did, however, during the course of his reassessment, recognize and use the reciprocal principle that if a policy was altered so as to further integration, it could also have the impact of lessening the segregative effect of another policy.⁽¹²⁸⁾ Although Judge Biggers found the four Fordice II presumptive remnants to be de jure remnants, still having segregative effect, he nevertheless ultimately concluded that Mississippi's "Proposed Remedy Plan" would cure most of the constitutional defects with regard to admissions and missions; that unnecessary duplication of programs were not significantly segregative, and that duplication causing segregation he was willing to tolerate duplication that caused segregation; and that there was no adequate proof that closure of any of the eight universities was educationally necessary.⁽¹²⁹⁾

With regard to disparate, potentially segregative automatic admission standards, Judge Biggers found that Mississippi's proposal would completely abandon those standards as of 1995, and replace them with a uniform, tiered-admissions system for all four-year universities, satisfied the principle concerns that the United States Supreme Court expressed in Fordice I.⁽¹³⁰⁾ Judge Biggers included in his assessment of the revised admission standards an evaluation of how Mississippi's African-American high school students would fare with regard to regular admissions in comparison to the admission standards in 1987 and 1994-95.⁽¹³¹⁾ He projected that under the new plan more than half, 52.5%, would be eligible for regular admission to all of the universities, while less than one-third, 32.4%, were eligible for regular admission at the historically white universities under the standards that existed in 1987 at the time of the first trial--the standards reviewed by the Supreme Court in Fordice I.⁽¹³²⁾ He acknowledged, however, that the effect of the proposal in comparison to the standards that were in effect in 1994-95, would be to reduce the percentage of African-American high school students eligible for regular admission to a four-year state university from 68.2% to 52.5%.⁽¹³³⁾ He failed, however, to project the percentage of white students who would be eligible for automatic/regular admission under the new standards in comparison to the 1987 or 1994-95 standards.

Judge Biggers' reasoning was also based on his comparative evaluation of the educational soundness of the proposed plan's revised admission standards with that of his assessment of the admissions proposals of the private plaintiffs and the United States.⁽¹³⁴⁾ He placed prime reliance on his conclusion that the requisite high school averages be pegged to the core college curriculum and the continuing role given to it and a standardized test in defining eligibility for regular admissions was educationally sound.⁽¹³⁵⁾ Ultimately Judge Biggers merely concluded that the Fordice I majority's concern with the segregative effect of differential admissions would be eliminated by the uniform standards.⁽¹³⁶⁾ He made no express reference, however, to the specifics of the concerns identified in Fordice I, nor did he seek to restate those concerns.⁽¹³⁷⁾ He failed to directly address how possibly increasing the percentage of African-American students eligible to attend historically white universities from thirty-two to fifty-two percent constituted dismantling the remnant of de jure segregation as identified by the Fordice I majority, especially since the actual impact of the revision would significantly reduce the eligibility of African-Americans to the system as a whole.⁽¹³⁸⁾ This is especially true because the revised standards would continue to rely heavily on the same standardized test first used to perpetuate segregation as a significant element of automatic/regular admissions, and Judge Biggers omitted making any projection of the number of white high school students who would gain automatic/regular admissions under the revised standards.⁽¹³⁹⁾ Hence, he did not address the Supreme Court's concern with the continuing stigma attendant to a significantly disproportionate number of blacks in comparison to whites eligible to gain admission only on a discretionary basis, was now worsened by characterizations of such admissions as "conditional" and "remedial."⁽¹⁴⁰⁾ Nor did Judge Biggers project how much more integrated would any of the eight universities be as a result of this revised admissions scheme.⁽¹⁴¹⁾

With regard to the three highly interrelated Fordice I remnants--differential mission statements, unnecessary duplication of programs, and possible merger or closure of one or more of the eight existing universities--Judge Biggers nixed a key element of Mississippi's series of proposed remedies.⁽¹⁴²⁾ He decided to at least postpone implementation of Mississippi's proposed merger of its two "Delta" universities--Delta State University and Mississippi Valley State University.⁽¹⁴³⁾ Judge Biggers expressly recognized that the state believed that the Delta merger was necessary to satisfy the Fordice I finding of presumptive remnant, and he expressly recognized that the continuance of the two "Delta" universities constituted his only finding of unnecessary duplication of programs, and continued to have racially segregative effect.⁽¹⁴⁴⁾ He simply substituted his conclusionary judgment, again failing to cite to a single source of evidence in support, that there was no reliable evidence that the merger would in fact significantly further integration.⁽¹⁴⁵⁾ He failed to expressly comment on the state's assumption that Fordice I mandated the merger, and paid no heed that he had again improperly switched of the burden of proof, and failed to cite to the Fordice I opinion to evaluate the concern as expressed therein. Hence he failed to assess in detail the integrative effect of the merger. Instead, Judge Biggers apparently projected that there was some chance for some integration of Mississippi Valley State in the future, if the right steps were taken.⁽¹⁴⁶⁾

No mention was made on how Delta State University would be further integrated without the merger.⁽¹⁴⁷⁾ Instead, Judge Biggers turned to his own favorite justification--sound educational policy--and conducted his assessment of the cost savings that would result from the merger, and declared them not clearly significant.⁽¹⁴⁸⁾ He then went on to reason that the merger would end the physical existence of Mississippi Valley State University, which was unwarranted, given the different populations it and Delta State served, and given its role in providing a viable educational option to educationally disadvantaged African-American students.⁽¹⁴⁹⁾ He required the state to prove that the merger was the only educationally sound solution to the segregation of the "Delta" schools.⁽¹⁵⁰⁾ Judge Biggers failed to cite to any specific passage in Fordice I as authority for this ruling. Nor could he because his last ruling contradicted the letter and spirit of Fordice I by setting aside a state initiated remedy likely to address a Fordice I remnant on grounds that Fordice never sanctioned.⁽¹⁵¹⁾

Hence, the Fordice I constitutional concern that the continuation of all eight universities would continue to be a cause of racial segregation rooted in the de jure era was not viewed as controlling by Judge Biggers, even when the state apparently interpreted the Fordice I mandate to require some action with regard to the existence of all eight universities. This is additional evidence that a district court judge can maintain his perspective about what the case is about--here sound educational policy--rather than the constitutional principles as articulated by the United States Supreme Court.

While Mississippi's remedy plan characterized Jackson State as a Level 1 research university along with the other three historical research historically white universities--all with a single mission--Judge Biggers characterized the proposal as maintaining the same mission designations--including the urban mission of Jackson State University.⁽¹⁵²⁾ He did recognize the enhancements to Jackson State proposed in the remedy plan, and did focus on the correct evaluation in accordance with Fordice I; that is, the likelihood that the proposed enhancements would significantly desegregate Jackson State.⁽¹⁵³⁾ His evaluation, however, was skewed turning first to reject the plaintiffs' enhancements which would call for transfer and creation of high demand programs to/at Jackson State.⁽¹⁵⁴⁾ Again, Judge Biggers relied on his conclusionary pronouncement that such transfers were not educationally sound, and not on an evaluation of whether they were necessary to significantly desegregate Jackson State.⁽¹⁵⁵⁾

He did order the state, however, to conduct studies to determine what mix of proposed enhancements, as well as additional changes, would improve the potential for racial diversity at Jackson State University.⁽¹⁵⁶⁾ He also ordered stronger articulation agreements between Jackson State and area community colleges in the hope that it would improve integration at the university, but he did not cite to evidence to warrant a finding that such agreements would significantly improve integration.⁽¹⁵⁷⁾ Ultimately, he failed to even offer an estimate of to what degree, if at all, the state's current proposals would integrate Jackson State University.⁽¹⁵⁸⁾

By contrast, however, he did conclude that a sizeable endowment and a small farms center would solve Alcorn State University's other race problem.⁽¹⁵⁹⁾ He never mentioned or expressed a view at this point with regard to that part of the remedy plan designed to reduce the significance of the differential mission standards by making each of the its primarily undergraduate universities into administrative units of a research university.⁽¹⁶⁰⁾ According to Judge Biggers, therefore, almost all the universities maintained their same relative missions, yet he found constitutional a plan that might enhance programs at two of the HBIs so that they might become more integrated, to some unspecified degree, at some unspecified time in the future. Hence, the Fordice I constitutional concern that the hierarchial "Mission Statements" designation by the Mississippi Board of Trustees in 1980 was presumptively a vestige, because it was substantially the same hierarchy of missions established in the de jure segregation era and continued to be a cause of racial segregation, was not adequately addressed by Judge Biggers.⁽¹⁶¹⁾

Judge Biggers reexamined the unnecessary duplication remnant and decided, contrary to his original opinion and the Fordice I decision, that the only unnecessary duplication that was unnecessary was duplication of programs at geographically proximate universities,because only such duplication caused segregation.⁽¹⁶²⁾ This redefinition of "unnecessary duplication" ignored the express ruling in Fordice I that Judge Biggers had erred in his opinion by failing to require the state to prove that system-wide duplication was not continuing to have segregative effect.⁽¹⁶³⁾ His decision converted this remnant into a subcategory of the continued existence of all eight university remnants, but as we have already seen, he decided, at least temporarily, to continue the existence of all the universities.⁽¹⁶⁴⁾ In making this decision, Judge Biggers cited to no studies or other evidence to support his conclusion; instead, switching the burden of persuasion, by finding that there was no evidence that duplication of programs at universities, which were not geographically proximate, made a significant contribution to segregation.⁽¹⁶⁵⁾ He also cited other factors that he found had more to do with student choice, rather than program offerings.⁽¹⁶⁶⁾

Judge Biggers went on to approve the major element of Mississippi's remedy for the unnecessary duplication of program remnant: a review of the costs and benefits of remaining undergraduate and graduate programs.⁽¹⁶⁷⁾ He did not explain, however, how this review process was any different from the review process employed by the state since the beginning of the 1980s with regard to dismantling this vestige--and most specifically how significant an impact, if any, this review process was likely to have on lessening racial segregation at the universities.⁽¹⁶⁸⁾ Judge Biggers did not cite to any specific passage in Fordice I as authority for his decision.⁽¹⁶⁹⁾

Judge Biggers made only two express references to the Fordice I opinion in evaluating truly new remnants as alleged by the plaintiffs.⁽¹⁷⁰⁾ In evaluating these alleged new remnants, he made only one express reference to the Fordice I majority's allocation of the burden of persuasion to the defendant Mississippi to prove that it had discharged its affirmative duty to dismantle its prior de jure segregated system of higher education.⁽¹⁷¹⁾ Consistent with the absence of this reference to the burden of persuasion statement in Fordice I as a touchstone for his evaluation, Judge Biggers made express findings that the plaintiffs had failed to prove one of the elements of the Fordice I holding.⁽¹⁷²⁾

A significant consequence of Judge Biggers failure to refer to and follow the specific guidance of Fordice, with regard to assessing alleged new remnants, was that sometimes he began an evaluation of an alleged new remnant without an exploration of whether it was rooted in the de jure period of segregation.⁽¹⁷³⁾ Without such an historical reference point, Judge Biggers neither measured the quality and quantity of the injuries created by the arguably de jure rooted policy, nor, what the state would have to do to "dismantle" it.

Even when Judge Biggers did evaluate whether an alleged remnant was rooted in the de jure era, he sometimes applied too narrow of a nexus standard in light of Fordice I, and hence erroneously concluded that the alleged remnant was not borne of the de jure era.⁽¹⁷⁴⁾ Even when he ultimately found that a policy of commission or omission had de jure origins, Judge Biggers concluded that it did not have current segregative effect, or he frequently failed to project the long-term segregative effects of that policy, or inquire in detail into whether the policy was since dismantled, or continued to have segregative effect.⁽¹⁷⁵⁾ In fact, he even acknowledged that certain of these state policies had not been dismantled since the Brown decision.⁽¹⁷⁶⁾ It was enough for Judge Biggers, however, if he concluded that the state at some point abandoned the policy, or that he found the policy's dismantlement was unwarranted given countervailing educational concerns, or that its abandonment would not further integration or any combination thereof.⁽¹⁷⁷⁾ Hence, whether he was evaluating a true new remnant or reassessing a Fordice presumptive remnant or element thereof, Judge Biggers rarely used specific Fordice I criteria to guide his fact finding or evidence evaluation.⁽¹⁷⁸⁾

On the other hand, Judge Biggers made multiple express references to his own 1987 opinion, and the conclusions, reasoning, and standards therein, in assessing the new remnant claims of the plaintiffs on remand.⁽¹⁷⁹⁾ Judge Biggers even justified his conclusions with regard to new remnants by express reference and reliance on his prior findings and conclusions twice.⁽¹⁸⁰⁾ With regard to these remnants, he almost always reached the same conclusion that he reached in 1987,often relying on the same or similar basis with regard to almost all of the non-Fordice remnants presented to him in 1987 and again on remand in 1994-95.⁽¹⁸¹⁾ Ultimately, he failed to find a single non-Fordice presumptive remnant unconstitutional.⁽¹⁸²⁾

This subsection examines the degree to which Judge Biggers modeled the structure of his opinion on the structure/content of the plaintiffs' and defendant's arguments on remand of Fordice. Judge Biggers, in evaluating the new remnants alleged by the plaintiffs, made several references to his view of the contentions of the private plaintiffs and the United States, and cited multiple times to the exhibits and testimony of the plaintiffs' witnesses at trial.⁽¹⁸³⁾ Judge Biggers did not justify his conclusions with regard to new remnants by specific reliance on plaintiffs' theories of the case and evidence.

Judge Biggers, in evaluating the new remnants, made several express references to his view of Mississippi's contentions, and cited multiple times to the exhibits and testimony of the state's trial witnesses.⁽¹⁸⁴⁾ Judge Biggers justified his conclusions with regard to new remnants by specific reliance on defendant Mississippi's theories of the case and/or evidence only once.⁽¹⁸⁵⁾

In summary, despite the intervening United States Supreme Court opinion, Judge Biggers modeled his analysis of the issues on remand more on his own 1987 opinion than either the analytical approach taken by the United States Supreme Court or that taken by the parties on remand. He provided, for example, some evidence that state higher education officials paid no heed to the legal standards and concerns the Supreme Court articulated in Fordice I, but gave it no significance in his opinion.⁽¹⁸⁶⁾ He never made the Fordice mandate that Mississippi prove that it had dismantled the remnants of its de jure racially segregated system of higher education the centerpiece of his opinion on remand.⁽¹⁸⁷⁾ His fact finding and evidence evaluation were not faithful to those focuses identified in Fordice I, but he was on the other hand faithful in his finding of facts to those he relied upon in his first opinion.⁽¹⁸⁸⁾

Judge Biggers appraised certain new remnants alleged by the plaintiffs without focusing or too narrowly focusing on whether they were rooted in the de jure era, when in fact they were.⁽¹⁸⁹⁾ He interpreted the Fourteenth Amendment to excuse the lingering segregative effects of policies rooted in the de jure era, even if he determined that such policies were educationally more sound than the action needed to take swifter steps needed to integrate the Mississippi system of higher education.⁽¹⁹⁰⁾ Ultimately, he failed to find a single non-Fordice I presumed remnant unconstitutional.⁽¹⁹¹⁾

More egregiously, he demonstrated several times that he simply did not believe any action would prompt white students to attend Historically Black Universities--ultimately finding that the reasons whites would not attend these universities not central to the issues in the lawsuit.⁽¹⁹²⁾ He exacerbated this one-way integration mentality by approving a remedy package that failed to include the initiation of a single unique program at two of the three Historically Black Universities, by which they could attract more than a token number of white students.⁽¹⁹³⁾ Yet he sanctioned, at least for the time being, the retention of all eight universities.⁽¹⁹⁴⁾ Hence, in the end, Judge Biggers left intact three of the four presumptive Fordice I remnants.⁽¹⁹⁵⁾

IV. Conclusions and Implications--Given the Lessons Learned from Fordice by the Participants

Now, in the early spring of 1997, the Fordice II case since Judge Biggers 1995 decision, has twice returned, in part, amidst some substantial turmoil, to the Federal Fifth Circuit Court of Appeals, and the United States Supreme Court has also declined a request to immediately intervene in the Fifth Circuit's rehearing and decision of that part of the case.⁽¹⁹⁶⁾ The appeal of Judge Biggers' decision was made by the United States and joined by the private plaintiffs.⁽¹⁹⁷⁾ In this Part, we set the stage for predicting the outcome of Fordice II, if it should return to the United States Supreme Court, by recapping and prioritizing a total of ten primary strengths and weaknesses of the first Fordice opinion as guidance, and how the parties and the trial judge reacted to each of these signals.

First, we conclude that the most significant weakness of the first Fordice opinion was its failure to identify the injured parties and the nature of injury resulting from a de jure state's continuing remnants of decades of its de jure racial segregation era for decades--that injury, we have concluded, was to African-American citizens of Mississippi in the form of continuation of racial group stigma and the systematic denial of equal educational opportunity.⁽¹⁹⁸⁾ On remand, the plaintiffs did focus on racial stigma and assumed inferiority in crafting their new remnants list, but their references were to Historically Black Universities and not to the detailed documentation of the nature and scope of injury suffered by generations of African-Americans, nor the nexus between it and the current conditions and status of these institutions.⁽¹⁹⁹⁾ On remand, the defendant, Mississippi, ignored almost completely the issue of who was injured and the nature of the injury that resulted from the de jure era, and its failure to dismantle the remnants of that era. On remand, the trial judge, after acknowledging that the constitutional rights at stake were those of people and not universities, never assessed in detail the nature of those rights, the nature of the injury to those rights caused by the de jure era and the continuation of its remnants, or kept a perspective on how his ruling would remedy the injury or prospectively better protect the rights of the plaintiffs.⁽²⁰⁰⁾

The failure of the parties and the courts, including the United States Supreme Court, to focus the course of this litigation on the injury caused to Mississippi's African-American citizens by separate and unequal apartheid segregation and the failure to dismantle it for almost another half-century, is the strongest indication that if and when Fordice II returns to the United States Supreme Court it will not be decided in a manner that will properly reconcile the substantive interests in conflict. Equal educational opportunity is not likely to be enhanced, and the lingering impact of racial stigma on individual African-Americans, and its transference to the historically black institutions is not likely to be alleviated.

Second, we have concluded that the next most serious flaw in Justice White's majority opinion in Fordice I was the egregious error of favorably citing the 1968 Alabama State Teachers Association (ASTA) per curiam decision, which sanctioned perpetuating segregation and continuing the state's stigmatization of African-Americans and their institutions as inherently inferior.⁽²⁰¹⁾ Inconsistent with that ruling, however, was the express recognition by the majority opinion that post-1954 actions by Mississippi could qualify as presumptive remnants. In fact two of the four presumptive remnants identified in the opinion were of this nature.⁽²⁰²⁾

On remand, both plaintiffs in their allegation of new remnants identified as a remnant the placement of new junior colleges and the extension of historically white universities as new remnants in communities whose primary higher educational unit was an Historically Black University.⁽²⁰³⁾ On remand, Mississippi responded as had Alabama that the location of new higher education options in communities/regions heretofore served by only one of the Historically Black Universities were post-Brown actions not traceable to the de jure era.⁽²⁰⁴⁾ On remand, the trial judge ignored the issue raised by the plaintiffs that the historical and current situations in which Mississippi had placed new community/junior college units, or new campuses of historically white universities into geographic areas served only by Historically Black Universities was a remnant.

If Fordice II on the merits returns to the United States Supreme Court, it is important for the Court to recognize the conflict between ASTA and the broader definition of remnants in Fordice. It is even more important that the Court then realize that the only basis for rationalizing the difference in its position in ASTA and Fordice II, is that dismantling de jure segregation by enhancing integration at a university is a two-way, not just a one-way street; that is, historically black universities, as well as historically white universities are capable of becoming "just universities." Failure to recognize this point means perpetuating the assumption of the inherent intellectual inferiority of African-Americans that was used as a key rationale originally for apartheid and the generations' long denial of equal educational opportunity.⁽²⁰⁵⁾

Third, the majority opinion in Fordice I, inferred but failed to expressly state that all universities founded in the de jure era, predominantly white--not just black, were all remnants of that era.⁽²⁰⁶⁾ On the other hand, the opinion included statements that suggest that even today the Court does not believe that Historically Black Universities can be "just" universities.⁽²⁰⁷⁾

On remand, the plaintiffs did not buttress arguments with regard to their greatest concern--ensuring better/more equal treatment of the Historically Black Universities--by heavy reliance on the reality that all historically white to the same degree as Historically Black Universities, were in fact vestiges of the de jure era, and hence, equally if not more subject to closure or downsizing as an element of an appropriate dismantling plan. On remand, Mississippi made an egregious error in its remedy plan when it opted to propose closing Mississippi Valley State rather than Delta State.⁽²⁰⁸⁾ On remand, Judge Biggers expressly recognized that the white, as well as the black universities, were remnants of the de jure era, but then he strongly indicated that he shared the view of the Court that no remedial action would enable the Historically Black Universities to become "just" universities.⁽²⁰⁹⁾ He did, however, at least temporarily block the proposed closure of Mississippi Valley State University.⁽²¹⁰⁾

If Fordice II on the merits returns to the United States Supreme Court, it will be very important for all members of the Court to expressly recognize that there are strong stigma and equal protection rationales for treating all universities as identical with regard to their de jure origins. Therefore, it is important that the Court expressly recognize that white de jure universities are equally if not more subject to closure or downsizing as an element of an appropriate dismantling plan. Such express recognition would greatly alleviate apprehensions of so many commentators and persons generally.⁽²¹¹⁾

The fourth key finding with regard to Fordice I as guidance, was that the majority expressly chose, but failed to adequately justify, Brown and its progeny over Bazemore as the proper precedent to establish the scope of the "dismantling duty" of a prior de jure state with regard to its state system of higher education.⁽²¹²⁾ On remand, this precedent choice signalled to the plaintiffs that they could pursue their primary goals and strategies from the 1987 litigation. The trial judge similarly characterized the position of the plaintiffs in his remand opinion.⁽²¹³⁾ On remand, this precedent choice forced Mississippi to concede that it had to author some proposal to at least ameliorate the four presumptive remnants identified by the Court, and to defend on the merits against the plaintiffs' allegations of new remnants. But the trial judge also believed Mississippi was arguing that his 1987 opinion precluded reconsideration of certain of plaintiffs' allegations of new remnants.⁽²¹⁴⁾ On remand, District Judge Biggers never made express reference to the United States Supreme Court decision to choose Brown and its progeny over Bazemore, nor did he seek to identify its significance for his remand decision.

If Fordice II returns to the United States Supreme Court for merit re-evaluation, the Court should pay most attention to the reasons identified in this Article for why it was most appropriate to choose Brown/Green over Bazemore as the proper precedent.⁽²¹⁵⁾ The Court should also pay some attention to how its precedent choice was ignored by the trial judge, used by the plaintiffs, and shrugged off in part by the defendant as not requiring relitigation under the new standard of issues with regard to remnants and their effects already decided by the trial judge in the original trial under the old standard.

Fifth, the majority opinion failed to expressly define "dismantle," but did expressly place the burden of persuasion on the defendant, Mississippi, to prove it had dismantled the remnants of its de jure system of state higher education.⁽²¹⁶⁾ Inferentially, the Court made the cornerstone of dismantlement a decent effort to eliminate state policy barriers to ending one-race universities.⁽²¹⁷⁾

On remand, the failure of the Court to comprehensively define "dismantle" apparently significantly influenced the actions of the parties on remand. The plaintiffs, for example, failed to provide a core thesis of what minimum actions or alternative combination of actions would constitute the dismantling de jure era remnants.⁽²¹⁸⁾ On remand, the defendant, Mississippi, seized on the opening provided by the failure to identify in detail what it would take to "dismantle" to focus their proposed remedy plan on only those remnants identified by the Supreme Court, and coupled with a misreading of Fordice to frequently argue that an alleged new remnant was no longer a current state policy or practice.⁽²¹⁹⁾

On remand, Judge Biggers, at the outset of his opinion, while recognizing that Fordice I required Mississippi to dismantle vestiges of the de jure era, failed to synthesize the suggested sequential guidelines and related working rules furnished by the majority opinion in Fordice I, or to acknowledge that Fordice I expressly placed the burden of persuasion on the state to prove it had dismantled, or justify why it could not dismantle all or parts of the remnants of the de jure era.⁽²²⁰⁾ This failure significantly influenced most of the subsequent major elements of his opinion.⁽²²¹⁾ The trial judge also seized on the opening provided by the failure of the Fordice Court to expressly define what it would take to dismantle the remnants of the de jure system, to erroneously focus his decision on finding insufficient evidence to warrant ending one-race universities, relying on his most frequent finding that sound educational policy dictated otherwise.⁽²²²⁾

If Fordice II returns on the merits to the United States Supreme Court, we believe the Court must recognize a quandary it faces. In this summary, we identify the weakness in the Court's guidance concerning dismantle. On the other hand, our study of its first decision led us to synthesize "dismantle" to mean the elimination or diminution of all remnants of the de jure era of racial segregation in its higher education system that were still having segregative effect. The defendant, Mississippi, and the trial judge on remand, we have found, apparently decided that the Court really did not or could not have meant this definition. Should the Court next time provide more guidance or simply demand that the parties and judge follow the guidelines it has provided?

Sixth, we have concluded that a major strength of Fordice I as guidance, was that the majority opinion attempted to provide a comprehensive definition of what qualified as a "remnant" of the de jure era, including providing a strong indication that post de jure policies could qualify as vestiges, but made no express finding with regard to whether policies of omission could qualify.⁽²²³⁾ The majority opinion, however, failed to expressly allocate the burden of persuasion with respect to proving or disproving that a policy was a "vestige."

On remand, the plaintiffs failed, at least in their pre-trial documents, to focus on marshalling evidence to prove at trial that an alleged remnant was clearly a policy traceable to the de jure era, or enacted to perpetuate it, although the private plaintiffs did make reference to evidence with regard to establishing the existence of some of its alleged remnants.⁽²²⁴⁾ On remand, the defendant, Mississippi, argued that about half of the new remnants alleged by the plaintiffs were not traceable to the de jure era; offered proof with regard to one-third of those allegations, and then argued that many of the other alleged new remnants were policies or practices that it had remedied or was working on remedying.⁽²²⁵⁾

On remand, Judge Biggers also paid little heed to thoroughly examining the historical origins of alleged remnants as was seemingly required by the Fordice I decision's guidance. He also erred in the proper application of the Fordice I standard, and thereby lost any opportunity of using this study as the foundation for assessing what it would take to "dismantle" the remnant under consideration.⁽²²⁶⁾

If Fordice II should return to the United States Supreme Court with regard to the merits, the failure of the parties and the trial judge to carefully follow the "remnant" historical definition guidance of Fordice I, will make it difficult for the high court to review, via an adequate factual record, whether any of the alleged new remnants was rooted in the de jure era or enacted to perpetuate it. Of course, the Court may have helped to create an atmosphere of neglect by failing to expressly allocate the burden of proof on this issue. Certainly, the Court should expressly decide that matter if given a second opportunity.

Seventh, the majority opinion in Fordice I expressly recognized four remnants as presumptively vestiges of the de jure era.⁽²²⁷⁾ The Court, however, failed to assess which of these four vestiges continues to exacerbate the key injuries to African-Americans caused by the de jure system and the failure to dismantle it.⁽²²⁸⁾ We have found that Mississippi's current and proposed admissions policies stigmatize African-Americans with the same trappings of inferiority that justified the de jure era and which also deny African-Americans equal educational opportunity; as well as hierarchial mission statements, which perpetuate racial stigma, do perpetuate such injuries.⁽²²⁹⁾ On the other hand, we have concluded that the duplication of programs and the number of universities are intertwined, and do not necessarily perpetuate such injuries.⁽²³⁰⁾

On remand, the plaintiffs apparently assumed that the trial court had no choice but to conclude that at least three of the four (excepting the continued existence of all eight universities) presumptive vestiges identified in Fordice I, were indeed vestiges having current segregative effect that must be remedied, and the defendant, Mississippi, in focusing its remedy plan solely on addressing only these four matters, seemed to share that view.⁽²³¹⁾ The Mississippi remedy plan, however, failed to provide evidence that its new "uniform" admissions policies or the closure of Mississippi Valley State would remedy the injury to African-Americans by the de jure system and the failure to dismantle it, that is, reduce racial stigma or further equal educational opportunity.⁽²³²⁾ The Mississippi Remedy Plan also missed a golden opportunity to take a meaningful step in remedying the racial stigma of the de jure era when it failed to order the closure of Delta State and its merger with Mississippi Valley State.⁽²³³⁾

On remand, the Court's finding of four presumptive remnants strongly influenced Judge Biggers' opinion with regard to its focus, length, and structure, but had little influence on his reasoning.⁽²³⁴⁾ Judge Biggers, however, decided that Mississippi had cured one and hence cured two of the four Fordice I remnants, that an element of a Fordice I remnant was not really a remnant, ignored a specific finding that he had erred in allocating the burden of persuasion in the first trial with regard to "unnecessary" duplication. Instead, he changed the definitional standards with regard to this remnant, examined de novo their segregative effect, and applied his own standard of educational policy/necessity to warrant continuation of three of the four Fordice I remnants, according to him in their same guise, as before the Brown decision.⁽²³⁵⁾ The trial judge left intact three of four presumptive remnants without even the semblance of a justification that would satisfy the standards of the Court in Fordice I. Hence, procedural and strategic decisions aside, the Court should now specifically order Mississippi to remove these state barriers to the elimination of one-race universities. It would be better, of course, for the Court to require Mississippi to terminate or modify these vestiges in a manner designed to maximize the amelioration of the racial stigma and denial of equal educational opportunity injuries suffered by African-Americans as a result of de jure segregation and the continuation of its vestiges for an additional forty-plus years. Regarding the uniform admissions policy as a remedy, the present crucial issue is whether it enhances or injures equal educational opportunity for Mississippi's African-American citizens. While the state has offered some evidence to support its argument that it helps, the weight of the evidence more strongly supports the conclusion that it will not result in a significant change in the present presumptively unconstitutional scheme.

As far as missions, duplication, and continuation of all eight universities are concerned, it is important for the Court to recognize that while in its first opinion, it rejected the creation of better black enclave universities as a mandate of the national constitution, its identification and evaluation of the four presumptive remnants nevertheless placed the focus on efforts to end state barriers to the elimination of one-race universities, rather than the related but more proper focus, the injury done to African-Americans. Since the same magnitude of duplication, the same mission statements, the same number of universities, and not a single new suggested additional remnant related to diminishing on race universities was sanctioned by the trial judge, the Court, if given the opportunity, should first remove the presumption, remember who was injured by de jure racial segregation and the continuation of its remnants, third consider the nature of that injury, and declare that the state must take immediate steps to eliminate or diminish these vestiges.

Eighth, we have concluded that another major strength of Fordice as guidance was that the majority opinion expressly recognized that more de jure remnants than the four presumptive remnants identified in the opinion might exist.⁽²³⁶⁾ On remand, the Court's sanctioning of this possibility most significantly shaped the strategy of the plaintiffs, both private plaintiffs and the United States primarily focused their efforts on identifying an array of approximately forty alleged additional remnants, which in turn dictated the structure of the defense of the state of Mississippi, and to a lesser degree the structure of the trial court's opinion.⁽²³⁷⁾ On remand, Mississippi also failed to concede that a single non-Fordice I presumptive remnant was a remnant; even those inextricably related to one of the four presumptive remnants.⁽²³⁸⁾

On remand, Judge Biggers almost never cited to the allocation of the burden of persuasion or specific substantive guidelines from Fordice I in assessing the plaintiffs' allegations of additional remnants, and multiple times erroneously placed the burden of persuasion on the plaintiffs to prove an element of the Fordice I standard.⁽²³⁹⁾ In the end, he failed to find a single non-Fordice I remnant unconstitutional.⁽²⁴⁰⁾ If Fordice II returns to the United States Supreme Court, the Court will have to come to grips with the quandary that even when it provides decent guidance, a party and the trial judge will find ways to substantially ignore that guidance.

Ninth, we have concluded that a significant weakness of Fordice I as guidance, was that the majority opinion held that de jure vestiges were only unconstitutional when they continued to have, singly or in combination, current significant segregative effects, but failed to set a standard for measuring when a vestige or the interactive impact of multiple vestiges is having such a segregative effect.⁽²⁴¹⁾ The Court did, however, expressly require the state to prove that an identified vestige was not having such an effect.⁽²⁴²⁾ Implicit in this standard, is that relative to the racial demographics of Mississippi's total population, Mississippi's universities remain overwhelmingly one-race universities, and that if they all ceased to be one-race universities, the de jure system would be dismantled.⁽²⁴³⁾

On remand, the parties did not seek to establish specific details of how relatively segregated were Mississippi universities by documenting racial percentages in applicant pools of each university over the last several years, the racial composition of a geographic area in which each university was located, etc. The United States, however, as an institutional plaintiff, unlike the private plaintiffs, did learn from Fordice I of at least the need to allege that each remnant it identified was having independently and/or in combination with other identified remnants a segregative effect.⁽²⁴⁴⁾ Ostensibly, the plaintiffs did not have to prove the magnitude of the segregative effect caused by a given remnant because the Fordice I opinion allocated that burden to the defendant Mississippi, and the plaintiffs in these pre-trial papers did not point to sources of evidence that would be used to prove the nexus between an alleged remnant and the current racial identifiability of Mississippi's universities.⁽²⁴⁵⁾

On remand, Mississippi, which had the burden of persuasion, failed to offer any factual support in its contention that three quarters of the plaintiffs alleged new remnants, were not having a segregative effect.⁽²⁴⁶⁾ Even worse, Mississippi seemed to persist in the assumption of racial inferiority that spawned the de jure era and fueled by its retention by strongly indicating that it believed nothing would prompt most white Mississippians, even at the end of the twentieth century, to attend Historically Black Universities.⁽²⁴⁷⁾

On remand, Judge Biggers again failed to follow the details of a Fordice I majority guideline--never assessing or acknowledging the interactive segregative effect of any of plaintiffs' alleged non-Fordice I remnants--instead, he expressly recognized and applied the reciprocal principal that if he found a segregative policy diminished, it could diminish the segregative effect of other policies.⁽²⁴⁸⁾ The judge placed the burden of proof on the plaintiffs to prove that an alleged remnant was having a segregative effect, found, without reference to proof offered by Mississippi, that proposals in the Mississippi Remedy Plan would lessen state barriers to segregation at one or more of the state universities created by one or more of the Fordice remnants, and left to further student whether any identified proposals would significantly integrate the largest historically black Mississippi University.⁽²⁴⁹⁾ Finally, with regard to several alleged remnants related to the century-long underfunding of the HBIs and their programs, Judge Biggers acknowledged their de jure origins, yet failed to carefully examine the original and continuing segregative consequences of these policies.⁽²⁵⁰⁾

If Fordice II returns to the United States Supreme Court on the merits, the trial record provides an opportunity for the Court to rule that the state completely failed to discharge its burden of persuasion that alleged remnants, found by the trial court to be vestiges on remand, were no longer having significant segregative effect or could not be eradicated or at least diminished.

Tenth, and finally we have concluded that another key flaw of the first Fordice decision, was that the majority opinion expressly recognized, without providing a single specific example, that a former de jure state had a relatively narrow option to prove that there was necessity and/or educational policy grounds for the continuation, at least to some degree, of an established remnant which was having continuing segregative effect.⁽²⁵¹⁾ On remand, the plaintiffs failed to anticipate the degree of reliance Judge Biggers would place on excusing continuance of remnants or eliminating the necessity of remedying remnants by reference to a lack of evidence that such action was educationally sound. Plaintiffs' pre-trial papers, omitted for the most part, delineation of the arguably heavy burden of proof on Mississippi with regard to educational policy justifications, and pointing out the lack of truly viable options to curing or diminishing the remnants they identified.⁽²⁵²⁾

On remand, the defendant, Mississippi, did not expressly acknowledge that it had the burden of persuasion to convince the judge that de jure policies, still having a segregative effect, must be left in place, at least to some extent, because there were no educationally sound options.⁽²⁵³⁾ Mississippi, on the other hand, only asserted reliance on this argument to defend against less than half of the alleged new remnants.⁽²⁵⁴⁾

On remand, District Judge Biggers failed to draw specific lessons that could have been drawn from the Fordice I majority opinion that the existence of less segregative options negated the necessity/educational policy justification, and that such less segregative remedies/revisions in educational policy should not be rejected because they might have some flaws.⁽²⁵⁵⁾ Judge Biggers proceeded to distort the burden of proof and substantive nature of this narrow option, and seized upon it as the most pervasive rationale for finding that none of the approximately forty new remnants alleged by the plaintiffs were unconstitutional, and also used it to leave intact three of the four Fordice I presumed remnants.⁽²⁵⁶⁾ Probably, his most egregious use of necessity/sound educational policy was his continuing theme that curing of the de jure vestiges related to the long-term inferior treatment of the Historically Black Universities for the most part, this was not necessary because nothing could make the overwhelming majority of white students attend a Historically Black University.⁽²⁵⁷⁾

If Fordice II should return on the merits to the United States Supreme Court, the Court should use the return to admonish lower federal court judges to avoid the error in this case; to follow its clear directive in allocating the burden of persuasion to a state to prove that educational policy/necessity requires leaving in place a vestige of the de jure era still having segregative effect. The Court must also reject Judge Biggers' expansive use of educational policy to justify the continuation of a variety of de jure remnants that still have a segregative effect.

V. Conclusion

Finally, we conclude with the following overview observations about the lessons learned from Fordice I as guidance and how that guidance was used by the parties and the trial judge on remand of that decision. While Fordice II was viewed by many as providing poor prospective guidance, a key finding of this Article, based on the behavior of the participants on remand, particularly that of the trial judge, was that an equally great concern is that the guidance that has been provided will be ignored.⁽²⁵⁸⁾ On the other hand, this Article has clearly documented that the Court could have provided better guidance. For example, we have characterized seven of the ten most significant aspects of Fordice I as guidance, as weaknesses or partial weaknesses. For example, United States Supreme Court's decisions which fail to identify and evaluate the injured parties, and the nature and consequences of the injury in the case are destined to flounder as guidance.

While Fordice was viewed as threatening the existence of historically black colleges, the truth of the matter, as expressly recognized only by the trial judge on remand (who proceeded to ignore its implications in his evaluation) was that the Court's first opinion made all universities born in the de jure era, white and black, vestiges of the de jure era, equally subject to closure or revamping. If the Court is given the opportunity, it should provide a ringing endorsement of this principle, which in turn would pave the way for giving the seventeen previously de jure states an opportunity to truly abandon their racist past by focusing on making the changes needed to make all of its higher educational units "just universities."

* Professor of Law, Thurgood Marshall School of Law, Texas Southern University.

** Professor of Law, Thurgood Marshall School of Law, Texas Southern University.

1. 505 U.S. 717 (1992) (Fordice I). Justice White wrote the majority. Justices O'Connor and Thomas concurred, and Justice Scalia concurred in part and dissented in part.

2. The decision was an instant cause celebre among legal commentators. It was cited in over sixty law review articles by the fall of 1994 and included in the title or primary topic of discussion in more than a dozen law review articles, comments and notes. See generally Mary Ann Connell, The Road to United States v. Fordice: What Is the Duty of Public Colleges and Universities in Former De Jure States to Desegregate?, 62 MISS. L.J. 285 (1993); Robert N. Davis, The Quest for Equal Education in Mississippi: The Implications of United States v. Fordice, 62 MISS. L.J. 405 (1993); Kevin Dugan, Constitutional Law--Standards Established for the Desegregation of Public Institutions of Higher Education--United States v. Fordice, 27 SUFFOLK U. L. REV. 165 (1993); Alex M. Johnson, Jr., Bid Whist, Tonk, and United States v. Fordice: Why Integrationism Fails African-Americans Again, 81 CAL. L. REV. 1401 (1993); Robert W. Lockwood, Jr., United States v. Fordice, The Unfortunate Extension of Green v. New Kent County School Board to the University Level, 37 ST. LOUIS U. L.J. 1067 (1993); James A. Washburn, Beyond Brown: Evaluating Equality in Higher Education, 43 DUKE L.J. 1115 (1994); Note: The Supreme Court, 1991 Term, Desegregation of Public Systems of Higher Education, 106 HARV. L. REV. 230 (1992); Leland Ware, The Most Visible Vestige: Black Colleges After Fordice, 35 B.C. L. REV. 633 (1994); L. Darnell Weeden, Statutory and Equal Protection Remedies to Save Historically Black Colleges from the Effects of Invidious Discrimination, 18 T. MARSHALL L. REV. 41 (1992).

3. See Fordice I, 505 U.S. at 727-32.

4. See id. at 750-53 (Scalia, J., dissenting) (dissenting in major part from the majority opinion, Justice Scalia criticized the lack of good guidance in the majority opinion and stated this as the key reason for his dissent). Commentators in a variety of contexts have been critical of the adequacy of the guidance provided by a United States Supreme Court decision, or series of decisions. See, e.g., CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 37-56 (1993) (explaining how the criminal procedure revolution of the 1960s failed because the Court did not provide adequate police guidance); JOSEPH GOLDSTEIN, THE INTELLIGIBLE CONSTITUTION (1992); Diane Wood Hutchinson, Antitrust 1984: Five Decisions in Search of a Theory, 25 Sup. Ct. Rev. 70, 71 (1984).

5. See infra notes 10-42 and accompanying text.

6. See infra notes 43-195 and accompanying text; see also Kenneth N. Vines, Federal District Judges and Race Relation Cases in the South, in THEODORE L. BECKER & MALCOLM M. FEELEY, THE IMPACT OF SUPREME COURT DECISIONS (2d ed. 1973); for a compilation of theoretical but chiefly empirical studies of the impact of United States Supreme Court decisions on judges, other governmental branches, and the public. A key finding of Vine's study was that the strength of United States Supreme Court precedent in favor of a given civil right as applied to African-Americans was not determinative of the greater likelihood of a successful outcome in southern federal district courts. See id. at 81. While this and similar empirical studies base their conclusions on gross assessment measures such as the outcome of similar litigation before a number of district judges, this Article undertakes an intense micro analysis of the influence of one United States Supreme Court decision, on the fact gathering and reasoning of the remand district judge. See infra notes 106-95 and accompanying text. See generally ARYETH NEIER, ONLY JUDGMENT, THE LIMITS OF LITIGATION IN SOCIAL CHANGE (1982); STEPHEN L. WASBY, THE IMPACT OF THE UNITED STATES SUPREME COURT (1970); Tom R. Tyler & Kenneth Rasinski, Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular U.S. Supreme Court Decisions, A Reply to Gibson, 25 L. & SOC'Y REV. 621 (1991).

7. See infra notes 43-195 and accompanying text.

8. 879 F. Supp. 1419 (N.D. Miss. 1995) (Fordice II).

9. See infra notes 197-259 and accompanying text.

10. See Fordice I, 505 U.S. at 727-28, 731, 739. The majority opinion failed to specifically define "dismantle," but did expressly recognize that more than simply ending de jure segregation and adopting racially neutral admission and other higher education policies, procedures, and practices was required. See id.; see also infra note 11 for the authors' inference of what the Court meant by "dismantled." See also notes 22-30 and accompanying text.

11. See id. at 731.

12. See id. at 733-43.

13. 347 U.S. 483 (1954).

14. 478 U.S. 385 (1986).

15. See Fordice I, 505 U.S. at 730. Justice Scalia dissented with regard to this choice. See id. at 754-58 (Scalia, J., dissenting).

16. See infra note 30 (discussing the Court's failure to identify the injury, and Justice O'Connor's concurrence, which identifies the nature of the injury as described in the text); see also Brown, 347 U.S. at 494-95 (discussing the Court's recognition of the gravity of the apartheid stigma injury); Sweatt v. Painter, 339 U.S. 629, 635 (1950) (discussing the Court's earlier recognition of the inevitable interrelationship between apartheid stigma and denial of equal educational opportunity in higher education); JEAN L. PREER, LAWYERS V. EDUCATORS--BLACK COLLEGES AND DESEGREGATION IN PUBLIC HIGHER EDUCATION 68 (1982) (documenting apartheid nature of the stigma by reference to state laws in existence in the late 1930s, making it a crime for any university or professor to allow blacks and whites to attend the same colleges or classes); Zebie A. Grayson, Marshall's Dream Deferred: Almost Four Decades After Brown, The Vestiges of De Jure Segregation Linger as the Implementation Process Continues, 20 S.U. L. REV. 53, 54 (1993) (recognizing stigma as an injury, but premising its comment on the view that black colleges, as opposed to both black and white colleges of the de jure era, are vestiges); Gil Kujovich, Equal Educational Opportunity in Higher Education and the Black Public College: The Era of Separate But Equal, 72 MINN. L. REV. 29, 143-64 (1987).

There are two multiplier effects regarding multi-generational denial of equal educational opportunities. See infra note 104 and accompanying text. First, there is an interplay between the apartheid at the primary and secondary school level and the apartheid at the higher education level. See Kujovich, supra, at 149-51. Second, the multiplier effect results from the interplay of the apartheid stigma and the fact that the separate system was never even marginally equal. See id. at 143-46, 149-50.

17. See Fordice I, 505 U.S. at 724-25. At the beginning of the majority opinion, Justice White noted that as of the mid-1970s, Mississippi, in its course of negotiation with the federal government to comply with Title VI, had asserted that it was in compliance with that statute despite having done nothing to improve the racial segregation in its universities. See id. at 723. Justice White also noted that even in its argument before the Fordice Court, the attorneys for Mississippi argued that the state complied with the Constitution, despite its failure to heed the recommendations of the federal government, by implementing unilaterally its own plan, and having that plan substantially underfunded by the state legislature during that period. See id. at 723 n.3; see also Ayers v. Allain, 674 F. Supp. 1523, 1529-30 (N.D. Miss. 1987). For documentation and commentary on the general defiance of the Brown decision by Mississippi and several other states, see Davison Douglas, The Rhetoric of Moderation: Desegregating the South During the Decade After Brown, 89 NW. U. L. REV. 92 (1994) (noting that even ten years after Brown, no black elementary or secondary student in Mississippi had attended an integrated school).

18. See infra notes 31-36 and accompanying text; see also infra note 25 (discussing whether such post-Brown actions should also be characterized as "vestiges" and whether discriminatory intent must be proven in order for them to qualify as "vestiges").

19. See Fordice I, 505 U.S. at 730-31. The majority opinion began its justification by asserting that Bazemore did not require or justify the lower court's decision in this case. Justice White reasoned that the Court satisfied itself in Bazemore, that no existing Mississippi policy was influencing the private choices that currently resulted in many racially segregated 4H and Homemaker Clubs. But because these same Clubs were once segregated by law, the majority opinion's analytical focus would suggest that the proper inquiry was whether the state which was still knowingly funding these institutions had done anything to dismantle their racially segregated status. Hence, the majority left itself open to be raked over the coals by dissenting Justice Scalia. See id. at 754-58; see also Lockwood, Jr., supra note 2, at 1088-89.

20. See Fordice I, 505 U.S. at 732 n.7.

21. 42 U.S.C. § 200(d) (1994). In fact, none of the opinions in Fordice made a single reference to the large volume of documents, resulting recommendations, and discussions generated by the dialogues between the OCR and these states.

22. See Fordice I, 505 U.S. at 724; see also supra note 17 and accompanying text. The opinions in Fordice also failed to place reliance on other evidence introduced by the parties and used by the trial judge in making findings of fact. This lack of reliance is even more ironic, because in equating the constitutional and statutory protections, the volumes of work done by the OCR with the states to attain compliance with Title VI was identical to the recommendations and actions that would be needed to attain constitutional compliance. Of course, OCR's discussions with these states were for the most part unpublished and not brought squarely to the Court's attention by the litigants. In a forthcoming article, these authors, who have obtained a large portion of these materials from OCR, will evaluate them to assess the national significance of the Fordice decision.

23. See id. at 750-53 (casting the opinion in its worst light as guidance, Justice Scalia applied a literal approach to interpreting the majority opinion).

24. See id. at 728-29. The majority opinion failed to provide specific guidance as to what constituted a de jure era policy or practice, or to expressly recognize that policies and practices can be designed omissions as well as acts of commission. See supra note 16, and infra note 104. The nature of the injury suffered by African-Americans during the de jure era can only be fairly characterized as policies of omission, failures to include persons and institutions in the mainstream of societal and educational developments, and the fiscal and related omissions.

25. See Fordice I, 505 U.S. at 732-33 n.8 (stating the Court's view of the first adoption of the differential admission standards in the 1960s); see also infra notes 31-33 and accompanying text. The majority's undocumented assertion was that the admission standards differential was traceable to the de jure system. See Fordice I, 505 U.S. at 734. Perhaps Justice White at this point was relying on his earlier assertion that Mississippi had continued its policy of de jure segregation into the 1960s, despite Brown I and Brown II. See id. at 722. He clearly indicated that, in the Court's view, this de jure policy did not end until some time after 1962. See id. Since the admissions policies were first adopted in 1963, perhaps Justice White was relying upon the policies that were adopted during what the Court viewed as the continuing de jure segregation era. See id. at 733 n.8. The majority suggested that only those policies with historical antecedents in the de jure segregation period would be considered a vestige for purposes of whether the complaining party has to prove express intent to discriminate. See id. The post-Brown policies referred to in the text, however, have per se a discriminatory "taint" and hence no further proof of express discrimination is required. But the Court's per curiam affirmance in Alabama State Teachers Ass'n v. Alabama Public School and College Authority, 393 U.S. 400 (1969) (ASTA) is revisited and at least partially approved. See id. at 730 n.5. That opinion is characterized as affirming the three-district-court judge finding that extending Auburn University into Montgomery in the 1960s was not likely to perpetuate segregation, despite the fact that the only four-year institution then existing in Montgomery at that time was the historically black Alabama State University. The rationale of the Court at the time of the ASTA decision and again in Fordice ignored the significant fact that Alabama State could have been "just a university," to exactly the same degree as the future extension of Auburn University. Hence, the assumption of racial inferiority that spawned the de jure era, and that produced the pervasive racial stigma injury, was perpetuated by this decision. See Fordice I, 505 U.S. at 746 (Thomas, J., concurring) (stating that no additional discriminatory intent need be proven when vestiges have continuing discriminatory effect without adequate justification).

26. See id. at 723 n.2, 739, 741 (discussing the significant segregative effect caused by the interplay of vestiges). The Court made reference to data that showed the continuing segregation of Mississippi's State Universities as of 1974-75. See id. With respect to the five historically white universities, black students constituted over one-third of Mississippi's population, and were only 4% of student enrollment at the University of Mississippi, 7.5% at Mississippi State University, 8.0% at University of Southern Mississippi, 12.6% at Delta State University, and 13% at the Mississippi University for Women. See id. at 723 n.2. Much more telling, however, was the almost universal refusal of whites to choose to attend the historically black universities: only 3.4% of the Jackson State University enrollment was non-black and less than 1% of the students at Alcorn State and Mississippi Valley State were non-black. See id. By the 1991-92 school year, there was greater integration at all five white universities, but almost no increase in white attendance at the historically black universities. See id. The black student enrollment at the five white universities included 9% at University of Mississippi, 12.6% at Mississippi State University, 14% at University of Southern Mississippi, 23% at Delta State University, and 18.6% at Mississippi University for Women. See id. In comparison, the white student enrollment was 3.6% at Jackson State University, 4.5% at Alcorn State University, and still less than 1% of the students at Mississippi Valley State.

27. For the most part, the majority opinion focused specifically on only those factors that kept African-American students from attending white universities. In fact, the opinion ignored the issue of what kept eligible white students from attending the three historically black universities, once segregation by law was ended. See infra notes 196-259; see also Fordice I, 505 U.S. at 730 n.4. (finding by the Fordice majority that the Constitution's concern is not with the fact that the universities remain segregated, that is racially identifiable, but rather that the reason they remain so is attributable to vestiges of the de jure segregated system).

28. See Fordice I, 505 U.S. at 735 (explaining that a state must not only show that a vestige has educational merit, but must also inquire whether it is practicable to eliminate them). The case also suggests that more educational justification is needed with regard to differential admission standards between comprehensive and regional universities. See id. at 736. This reference to more justification, however, obscures supposed proper focus on "necessity," that is, the state proving that there were no viable options to basing admissions differentials solely on performance on a standardized test. See id. at 739, 741-43. Justice O'Connor's concurring opinion made a much stronger statement concerning Mississippi's justification for escaping responsibility once it was established that a de jure vestige continued to have segregative effect. See id. at 744. Satisfactory justifications were "narrow," because the lower courts must ensure that such justifications "do not merely mask the perpetuation of discriminatory policies." Id. If there are other options, the courts may presume a lack of good faith, or at the very least, the state has a heavy burden to prove why it prefers the more segregative option, and even if it satisfies that burden, it must go on to prove that it has taken steps to minimize the segregative effect of that vestige. See id.

29. See id. at 730 n.5; see also supra note 25 (distinguishing ASTA by pointing to the lower court's finding of educational merit, but omitting reference to whether the Court, in affirming, heeded the lower court's findings and evaluations of alternative educational options, which would have furthered, rather than worsened racial integration). With regard to funding reforms needed to eliminate or diminish vestiges, the Court twice cited to findings by the lower court that the state had wasted money over the years by perpetuating such vestiges as duplicate programs and continuing all eight universities. See Fordice I, 505 U.S. at 739, 742. At the end of the majority opinion, Justice White expressly left open the question of whether application of the guidelines articulated in his opinion would require additional significant funding to the historically black Mississippi universities. See id. at 743.

30. See supra note 16 and accompanying text (identifying and discussing the injury of Mississippi's de facto segregation). Indirectly, the majority opinion did identify a harm that the Constitution's purpose in this context was not designed to remedy. Preservation of the three historically black universities as predominantly black universities with better funding was rejected as a constitutional mandate. See Fordice I, 505 U.S. at 743. Justice O'Connor, in her concurring opinion, identified the harms as a loss of educational and career opportunities and stigmatization that was produced by the discriminatory educational system. See id. at 744 (O'Connor, J., concurring) (citing Brown v. Board of Educ., 347 U.S. 483 (1954); Sweatt v. Painter, 339 U.S. 629 (1950); McLaurin v. Oklahoma State Reg. for Higher Educ., 339 U.S. 637 (1950)). Justice O'Connor, however, failed to identify the time period of the "discriminatory educational system" to which she was referencing, or which persons expressly suffered the harms she identified. Id. (O'Connor, J., concurring).

When the Fordice case was first filed in 1975, the plaintiff class was identified as all black citizens residing in Mississippi, whether students, former students, parents or taxpayers who have been, are, or will be discriminated against on account of race in the universities operated by said Board of Trustees. See Ayers v. Fordice, 879 F. Supp. 1419 (N.D. Miss. 1995) (Fordice II).

31. See Fordice I, 505 U.S. at 733-38. Automatic admission means that a student who earned a certain score on the standardized American College Testing Program (ACT) would be admitted to a university in the system without that university scrutinizing other admissions credentials such as high school GPA. See id. at 734. When the case was returned on remand, the district judge who made the original trial decision in 1987 expressly acknowledged that the state used standardized test cut-off scores to exclude blacks from HWIs shortly after the demise of de jure segregation. See Fordice II, 879 F. Supp. at 1432 n.18.

32. See Fordice I, 505 U.S. at 735 n.9. The Court did note that more than 70% of whites received an ACT score needed to qualify for automatic admission to all but one of the historically white universities, while less than 30% of the black students received such a score. See id. The Court made direct reference to the lower court finding that the differential automatic admission standards did not necessarily keep blacks out of white universities, because of possible discretionary admission and transfer. See id. The Court did not attempt to counter that conclusion with evidence to support an estimate of the number/percentage of black Mississippi high school students denied admission to the white universities. See id. Instead, the Court relied on a "chilling effect" rationale--speculating that African-Americans, attending high school in Mississippi, would know of the automatic admission standards of the historically predominantly white universities, which would exclude from automatic admission more than 70% of them, and therefore be discouraged from applying to the white universities. See id. The Court recognized that black students relegated for the most part to discretionary admission at the white universities would be further impeded by the lack of publicity given to these slots by the HWIs. The Court made no reference to the fact that almost all white-Americans attending high school could gain automatic admission to the historically black universities, but that almost none of them chose to apply to those schools. See supra note 24 and accompanying text. Instead, the Court concluded its evaluation of the impact of the differential admission standards with the broad statement that "[i]t is not surprising that Mississippi's universities remain predominantly identifiable by race." Fordice I, 505 U.S. at 735.

33. See Fordice I, 505 U.S. at 735-38 n.10. The Court noted that evidence was presented to the trial court that the ACT program itself discouraged sole reliance on test results as the sole criteria for admission. See id. at 736-37. The Court stated that more justification would be required to warrant even differential admission standards between the three "flagship" historically white universities and the regional universities. See id. The alternative identified by the Court was greater reliance on high school grade performance as the basis for automatic admission. The Court cited statistics that warranted the conclusion that more African-American students would be able to qualify for automatic admission at all Mississippi universities if at least some reliance was placed on high school grade performance. See id. The Court rejected high-school grade inflation and differences in grading practices and course offerings as adequate justifications for failing to use high school grades as at least part of the automatic admission decisions. See id. at 737-38.

34. See id. at 739-41. Of possible critical significance, and expressly referred to in the majority opinion, was the fact that the three historically black universities were originally charged with the duty to educate blacks to be farmers, teachers, and to provide vocational training. See id. at 740. The 1980 designations of two of the black universities as regional, as opposed to comprehensive, and the other as urban, additionally provided little or no contemporary incentive for whites to attend them. See id.

35. See id. at 741. The Court made reference to an appellate court finding that the effect of the 1981 Mission designations were more limited in scope of the programs that were provided at the historically black universities. See id.

36. See supra notes 26-27, 32, 34. Justice Scalia noted that Mississippi's universities were segregated mainly because almost every white student in the state refused to enroll in the three historically black universities, given their current status. See Fordice I, 505 U.S. at 760 (designating only three white universities as comprehensive, which facilitated integration by encouraging blacks to attend them; but designating a historically black university as comprehensive would discourage blacks from attending the white universities). Justice Scalia thereby ignored completely the possibility that the latter designation may be the only incentive that would result in significant number of whites attending a historically black university.

37. See Fordice I, 505 U.S. at 738-39. The district court found a program to be an unnecessary duplication when the program was offered by both a historically black and white university, with a non-core liberal arts or science course/course of study at the undergraduate level, as well as all duplications at the masters level and above. See id. In the de jure era, however, the duplication of the core curriculum at the black and white universities was the key racist element of that scheme. See id. By exempting the core curriculum from its definition, the district court implied that the core curriculums for all eight universities were necessary. See id. Hence, conceptually it is not clear if this duplication of program vestige can be distinguished from the continuing operation of all eight universities. See infra notes 40-42 and accompanying text.

38. See Fordice I, 505 U.S. at 738.

39. See id. at 739.

40. See id. at 741-43.

41. See id. at 742. The Court's implication that the continuance of all eight universities was unnecessarily relied most specifically upon the bizarre geographic proximity findings of the district court. See id. at 741-42. The Court first asserted that the district judge found that historically black Mississippi Valley State was only 35 miles from historically white Delta State University. See id. The Court, however, failed to give any significance to the fact that Delta State was far more integrated than the three "flagship" historically white universities. See supra