Ayers v. Fordice Brief and Opinion

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 95-60431

JAKE AYERS, JR, Private Plaintiffs 
United States Congressman, Second Mississippi

; BENNIE G THOMPSON, 
Congressional District /

Plaintiffs - Appellants 
UNITED STATES OF AMERICA

Intervenor Plaintiff - Appellant
v.

JUNIO^Tf???1^' G°ve^nor' Defendants/Senior Colleges; HINDS UNIOR COLLEGE, Board of Trustees; UTICA JUNIOR COLTFCF n
of Trustees; MISSISSIPPI DELTA JUNIOR COLLEGE? COAHOMA '

JUNIOR COLLEGE; STATE OF MISSISSIPPI, Defendants^
Defendants - Appellees

v.

LOUIS ARMSTRONG
Movant - Appellant

Appeal from the United States District Court 
for the Northern District of Mississippi

April 23, 1997



TABLE OF CONTT-iUTg

I.
II.
III.

BACKGROUND ................
STANDARD OF REVIEW ..........
DISCUSSION ................
A* Missions Policies and Practippg............

!• Background Facts ............
2* Undergraduate Admissions Standar-Hc . . . .

. 4 
10 
12 
12 
12 
15

3.

a. District court ruling........
b. Arguments on appeal ........ „c. Analysis............ * .......... 22

i. Rejection of plaintiffs' proposals ’ 28ii. Reliance on spring screening and
summer remedial program ..........  32

iii. Elimination of existing remedialcourses ........
iv. Timing........ ’ ’ * * ^ 4

d. Conclusions regarding undergraduate admissions standards
3- Scholarship Policies * * * • • • • • • •  39

a. District court ruling . . . .
c. Arguments on appeal . ........ Anc. Analysis..........* .....................
d. Conclusions regarding scholarship 42policies . . . * * " * • • • • •  52

Enhancement of Historically Black instit,n-i . 53

1• Background Facts . ............................ 53
2* New Academic Programs ...................... 54

a. District court ruling ...............  R
b. Arguments on appeal . *c. Analysis.......... * .............. ...
d. Conclusions regarding new academic* 61programs ..............* * * .......... 67

3 * Land_Grant P r o a r a m g ...............................  68
a. District court ruling . . . .
b. Arguments on appeal . ..........c. Analysis............* * ..............7 0

2



d. Conclusions regarding land grant programs.......... . . y
4. Duplication of Programs . .

73
73

a. Fordice ........
b. District court ruling .
c. Arguments on appeal . .
d. Analysis ..............
e. Conclusions regarding program duplication ..............

73
74
79
80
83

5. Funding 83
a. District court ruling ............
b. Arguments on appeal ..............c. Analysis ....................
d. Conclusions regarding funding . . . . . .

Employment of Black Faculty and Administrators 
D- System Governance ........ * • • • • • •

IV. CONCLUSION . . .

83
88
89
94
94
99

101

3



Before KING, JOLLY, and DENNIS, Circuit Judges.

KING, Circuit Judge:

This case concerns the obligation of the state of 
Mississippi and the other defendants to dismantle the system of 
~  iUre se9regation that was maintained in public universities in 
Mississippi. After we heard the initial appeal of this case in 
1990, the Supreme Court established, for the first time, the 
standards for determining in the university context whether a 
state has met its affirmative obligation to dismantle its prior 
~  ***** system* We now review the district court’s ruling 
following trial on remand to determine whether it erred in its 
application of these standards.

For the reasons set forth below, we affirm in part, reverse 
m  part, and remand the case to the district court for further 
proceedings consistent with this opinion.

I. background

Mississippi's system of public four-year universities was 
formally segregated by race from its inception in 1848 through 
1962, when the first black student was admitted to the University 
of Mississippi by order of this court. See Meredith u v,,- 3 0 6  

F.2d 3 7 4 (5th Cir.), cert, denied, 3 7 1 U.S. 828 (1962). The 
racial identiflability of Mississippi's eight public universities 
changed little during the decade following the landmark admission 
of James Meredith. The student composition of the University of 
Mississippi, Mississippi state University, Mississippi University

4



for Women, University of Southern Mississippi, and Delta state 
University (collectively, “historically white institutions” or 
“HWIs”) remained almost entirely white, while that of Jackson 
State University, Mississippi Valley State University, and Alcorn 
State University (collectively, “historically black institutions” 
or “HBIs”) remained almost entirely black. See Uryjted_States_vi_ 
Fordice, 505 U.S. 717, 722 (1992). The racial identifiability of 
these institutions persists to the present. 1

Private plaintiffs initiated this class action2 in 1975, 
complaining that Mississippi was maintaining a racially dual 
system of higher education in violation of the Fifth, Ninth, 
Thirteenth, and Fourteenth Amendments to the United States 
Constitution, 42 U.S.C. §§ 1981 and 1983, and Title VI of the 
Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7. The 
United States intervened as plaintiff and alleged violations of
the Equal Protection Clause of the Fourteenth Amendment and Title 
VI.

For twelve years the parties attempted to resolve their 
differences through voluntary dismantlement of the prior

PnmiiJnf ̂  f®11. of 1993' the on-campus undergraduate*as,at least 75% white at each of the HWIs, and at least 93% black at each of the HBIs.
2 The class was certified by the court as:

blacJc citizens residing in Mississippi, whether students, former students, parents, employees, or
Wh° haVe been' are' or w i l 1 be discriminated against on account of race in . . . the universities operated by said Board of Trustees. diversities

Ayers v. Allain, 674 F. Supp. 1523, 1526 (N.D. Miss. 1987).
5



segregated system. Unable to achieve ultimate agreement, the 
parties proceeded to trial in 1987. The district court ruled 
that Mississippi had discharged its affirmative duty to dismantle 
the former de jure segregated system of higher education through 
its adoption and implementation of good-faith, race-neutral 
policies and procedures in student admissions and other areas, 
aners V. Mlflln, 674 F. Supp. 1523, 1564 (N.D. Miss. 1987) fAvers 
I). Sitting en banc, this court affirmed. Avers v. » u ai. 9 1 4

F.2d 676 (5th cir. 1990). The United states Supreme Court 
granted certiorari. Avers v. Mahns 4 9 9 U-S. 9 5 8 (1991)_

The Supreme court vacated the judgment and remanded for 
further proceedings, holding that the mere adoption and 
implementation of race-neutral policies was insufficient to 
demonstrate complete abandonment of the racially dual system. 
Eatdice, 505 u.s. at 731, 743. The Court stated that

even after a State dismantles its segregative

policies traceable Z° t h f S L S ^ y s i e m ' are' siin in 

cconsistent with sound educational practices.
Id^ at 729. Applying this standard, the Court identified 
admissions standards, program duplication, institutional mission 
assignments, and continued operation of all eight public 
universities as a nonexclusive list of “constitutionally suspect’ 
remnants of the prior de_jure system, “for even though such 
policies may be race neutral on their face, they substantially 
restrict a person's choice of which institution to enter, and

6



they contribute to the racial identifiability of the eight public
universities. Mississippi must justify these policies or
eliminate them.” Id,, at 733. The Court directed that these and
“each of the other policies now governing the State's university
system that have been challenged or that are challenged on
remand” be examined “in light of the standard that we articulate 
today.” Id.

On remand, the district court ordered each party to submit 
proposed remedies “to resolve the areas of the State's liability 
pursuant to the Supreme Court mandate.” Without conceding 
liability, defendant Board of Trustees of State Institutions of 
Higher Learning (the “Board” ) 3 responded by presenting a 
detailed proposal for modification of the higher education 
system. This proposal contained, among other provisions, uniform 
standards of admission for all universities, as well as a plan to 
merge Delta State University and Mississippi Valley State
University into one institution to serve students in the 
Mississippi Delta."

The private plaintiffs and the United States (collectively,

of fhl ^  iS resP°nsible for the management and controleight Publlc universities at issue in this case m t«CODE ANN. § 3 7-1 0 1 - 1 M 9Qfi\ Ti-c 7 unis case. MISS., , 7  1 (iyy6)- Its general powers and duties
innrt d ' alla> mana<?ing all university property disbursinafunds, establishing standards for admission and gradation and 9  
supervise the functioning of eaoh institution.9 I S  ifl! £ 3 7 -

c o u r t ^ n ' o c t ^ e t S r ^ r  &  S V u b ^ t e T i
and^ergerbplan^were^ontained

7



plaintiffs”) responded by insisting that the range of 
constitutionally suspect policies and practices to be examined on 
remand had yet to be determined. 5 Pursuant to a subsequent 
court order, plaintiffs identified the following policies and 
practices for examination: admissions standards that allegedly 
deny black students equal access to higher education and tend to 
channel black students to the HBIs; the use of ACT scores as a 
basis for awarding undergraduate scholarships at the HWIs; 
maintenance of institutional mission assignments that largely 
follow historical racial designations; funding policies that 
disproportionately benefit the HWIs; allocation of academic 
programs that is unfavorable to the HBIs; allocation of land
grant programs between Alcorn state and Mississippi State that is 
unfavorable to Alcorn; duplication of the HBIs' programs and 
course offerings at the HWIs; maintenance of facilities at the 
HBIS that are inferior to those at the HWIs; employment practices 
that perpetuate the racial identiflability of the universities 
and compensate faculty at the HBIs at a lower rate than faculty 
at the HWIs; maintenance of all eight institutions; and practices 
that limit the participation of black persons in system
governance. Trial commenced on May 9, 1994, following lengthy 
attempts at settlement.

We
S S E t ^ *  S T  aS - e fi S l i ^ n n ^ 1 hend ^

8



court madeAfter ten weeks of testimony, the district 
additional findings of fact and conclusions of law. The district 
court found vestiges of de jure segregation in the areas of 
undergraduate admissions, institutional mission assignments, 
funding, equipment availability and library allocations, program 
duplication, land grant programs, and number of universities. 
Ayers v. Fordice, 879 F. Supp. 1419, 1477 (N.D. Miss. 1995)
(Ayers II).6 The district court entered a remedial decree on 
March 7, 1995.7

The remedial decree enjoins defendants from maintaining 
remnants of the prior system and engaging in practices impeding 
desegregation. Specific relief includes adoption of the uniform 
admissions standards proposed by the Board and allocation of 
additional resources to Jackson State University and Alcorn State 
University. The district court did not order implementation of 
the Board's proposal to consolidate Delta State University and 
Mississippi Valley state University. The decree establishes a 
Monitoring Committee to monitor implementation of the terms and 
obligations imposed by the decree. The Monitoring Committee is 
to consist of three disinterested persons with experience in the

a , -
asp ? L T tive effects- Srisrsrsss M S  M r

opi„iOT F S supp°rtat i % ^ 6entl„reetl U ”t the
th0Se “ »"*• tbe^remedialdecree p e ^ S n V S

9



field of higher education, agreed upon by the parties and
appointed by the court. The Monitoring Committee is to receive 
and evaluate reports reguired of defendants and make
recommendations to the district court, which has retained 
jurisdiction over the action. 8

Plaintiffs now contend that the district court left in place 
practices that are traceable to the prior dual system and that 

discriminatory effects and adopted reforms proposed by the 
Board without examining the soundness or practicability of 
alternative, less discriminatory proposals. Issues on appeal 
encompass undergraduate admissions standards, scholarship 
criteria, enhancement of historically black universities, system 
governance, and employment. 8 No party appeals the district 
court's rejection of the Board's consolidation proposal.

-L-L • ai'AW U AKD  O F  RFVTTTW

The standard set forth by the Supreme Court in Ford ice 
guides our review of the district court's judgment. Ford ice 
established that "a state does not discharge its constitutional

stayed appointment of”'the*l .Z 1996' the district court
reports ?egu?red to L  »ade ?o al°ng "ith anycompletion of “the appellate process ” uI1s L C'>“ lttee' Pending
assumethattthettay ^  • ̂ c S S t S S T "  w t  « “
Committee will be activated%roSp£ly. ̂  that the Honltoring

broader some^respectt'thatlhif^/tH ar9UI”ent ™  appeal is
the two positions overlap considerablv^Wetot althoughwhere relevant. F aeraoiy. We note distinctions

10



obligations until it eradicates policies and practices traceable
to its prior de -jure dual system that continue to foster
segregation. 505 U.S. at 728. More specifically,

[i]f the State perpetuates policies and practices 
traceable to its prior system that continue to have 
segregative effects —  whether by influencing student 
enroiiment decisions or by fostering segregation in 
other facets of the university system —  and such 
policies are without sound educational justification 
and can be practicably eliminated, the State has not
S^prior system!^" °f Pr°Ving ^  At h*S dismantled

^  at 731. We have read Fordice to require that “each suspect
state policy or practice be analyzed to determine whether it is
traceable to the prior de jure system, whether it continues to
foster segregation, whether it lacks sound educational
justification, and whether its elimination is practicable.”
United States v. Louisiana, 9 F.3d 1159, 1164 (5th Cir. 1 9 9 3 ).
The State s liability depends upon these factors. id. 10

Once liability is found, the offending policies and
practices “must be reformed to the extent practicable and
consistent with sound educational practices.” Fordice. 505 U.S.
at 729. “[S]urely the State may not leave in place policies
rooted in its prior officially segregated system that serve to
maintain the racial identiflability of its universities if those

“liabUi?u”thlS stage in a desegregation case, a state'slabilitiy consists of its obligation to remedy remnants of a
sys^em for which constitutional liability has

“U;b?iitv”ninSt M llShed- ^ Ui5iana' we used the terT vestiaes of J J L ^  sense of an affirmative obligation to remedy
SnStint6 d° USe “^ ^ t y ^ i n  thi^JeM^hw^^iSit^iS'th e''®understanding that the liability of the statP Af • •
* threSh°ld “ « « ■  =tems ' S ' S i t S .

11



policies can practicably be eliminated without eroding sound
educational policies." ^  at 743. Accordingly, we have

interpreted the directives of Fordice “as recognizing the need to
consider the practicability and soundness of educational
practices in determining remedies as well as in making an initial
determination of liability." Louisiana 9 F.3d at 1164.

We apply the directives of Eprdice in conjunction with
general standards of appellate review. This appeal challenges
elements of the district court's remedial decree and implicates
several of its findings and conclusions. We do not disturb the
district court's findings of fact unless they are clearly
erroneous, although we freely reassess its conclusions of law
under the de novo standard of review. Boss v, Honstnn
Sch. Dist. , 699 F. 2d 218, 226 (5th Cir lQR-n a  ̂ ., tir. 1983). A third standard
applies to our review of the remedial decree itself. A
desegregation remedy is an exercise of a trial court's equitable
power and as such is reviewable, within the context of Fordice.
for abuse of discretion, fiU Valley v. B r i des Parish so, -a
702 F.2d 1221, 1225 (5th Cir.), cert, denied 464 U.S. 9 1 4  

(1983) .

O ̂ U O CD 1UI\
A. Admissions Policies and Practirps 

1• Background Fart^
In 1961, less than one week after James Meredith applied to 

the University of Mississippi, the Board adopted a policy

12



requiring all applicants for undergraduate admission to any state 
institution of higher education to take the American College Test 
(“ACT”). Ayers I, 674 F. Supp. at 1530-31. Several months 
later, the Board authorized each university to set a minimum ACT 
score for eligibility for admission. Id^ at 1531. By 1963, the 
University of Mississippi, Mississippi State University, and the 
University of Southern Mississippi required an ACT composite 
score of at least 15 for all freshmen applicants. Id^ At the 
time, the average ACT score among white students was 18, while 
that for black students was 7. Fordice, 505 U.S. at 7 3 4 .

When this case was tried initially in 1987, admissions 
standards for first-time freshman varied along with the 
historical racial identiflability of each institution. Four HWIs 
continued to require a composite score of at least 15 on the ACT 
for automatic admission; the other HWI, Mississippi University 
for Women, required a score of 15-17 together with a high school 
grade point average of at least 3 . 0 on a 4 . 0  scale, or a score of 
at least 18. Ayers I, 674 F. Supp. at 1533-34. The HBIs 
required a minimum ACT composite score of 13. Id̂ _ at 1534.11

Based on the undisturbed factual findings of the district 
court —  and unmoved by lower court determinations that the 
admissions standards derived from policies enacted in the 1970s 
to redress the problem of student unpreparedness —  the Supreme 
Court concluded in Fo_rdice that the policies were traceable to

than theTJWIsBIflthin^hined liberal exceptions policies
an S T A S E S ?  ^

13



the dSLjUEE system, were originally adopted for a disoriminatory 
purpose, and continued to have discriminatory effects. 5 0 5 u s 
at 734. The Court found that the minimum ACT requirements 
restrict[ed] the range of choices of entering students as to 

which institution they may attend in a way that perpetuate[d] 
segregation.” Those students who received ACT scores too
low to meet the admissions requirements at the HWIs were 
restricted to the HBIs or community colleges if they wanted a 
higher education. id., at 734-35. As the Court stated,
[P]roportionately more blacks than whites face[d] this choice:

In 1985, 72 percent of Mississippi's white high school seniors 
achieved an ACT composite score of 15 or better, while less than 
3 0 percent of black high school seniors earned that score.” id̂ _ 
at 735. The Court also deemed ‘‘constitutionally problematic” the 
fact that the State denied automatic admission if an applicant 
did not achieve the minimum ACT score specified for a particular 
institution, without also considering high school grades as an
additional factor in predicting college performance. id, at 
736.12

Plaintiffs' challenges on remand included the use of 
differential ACT-based admissions policies at the HWIs and HBIs, 
as well as the use of ACT cutoff scores and alumni connection in

12

14



Thethe award of undergraduate scholarships at the HWis. 13

district court's ruling on each of these issues is now before us 
on appeal.

2. Undergraduate Admissions Standards
a. District court ruling

The district court concluded that “ [undergraduate
admissions policies and practices are vestiges of de jure
segregation that continue to have segregative effects.” Avers 
II, 879 F. supp. at 1477. More specifically, the court found 
that the admissions standards in place at the time of the 1987 
trial were traceable to the prior de jure system and continued to 
have segregative effects in a system where racially identifiable 
institutions offer numerous duplicative academic programs. id̂ . 
at 1434. The court held that defendants had a duty to eradicate 
use of the ACT cutoff score “as a sole criterion for admission to 
the system when the ACT is used in conjunction with differing 
admissions standards between the HBIs and HWis.” Id. 14

nertaininrr ^  ffS alS° challen9ed policies and practices 
l admissions exceptions. The district court's finding that no such policies or practices are traceable to the de—jure system is not contested on appeal.

14

se unlawful n°^ rUle that use of. an ACT cutoff is per. , ‘. Rather, its particular use in any circumstance
cha 11 e n a e d ^  C°nsider “hathar as a =°mpoLS of S e  policy 
S S S ? da7 r r . SsSp"attriS:ble tD Pri°r segregation.

of A c S S o r i r S S i d S S S 6/ 131!11” 3 ' claims that tha addition scores to high school grades as a predictor of freshmangrades improves the prediction only marginally, the district
admTL?°nC^ ded that the ACT Was “a so^ d component of the
w Sh hiSSSoolSrades ^  reaS°n that the ACT' in c°"*ination 9 schOQl grades, remains a better predictor of academic

15



Although admissions standards had been modified somewhat by 
the time of the trial on remand, the district court found that 
they "basically utilized a version of the 1987 standards with 
various exceptions." Id. at 1431. m  1989, the ACT was replaced 
by the Enhanced ACT. Id. at 1430. Scores on the two tests are 
not equivalent; the American College Testing Program accordingly 
publishes concordance tables that correlate scores on the old ACT 
and Enhanced ACT according to percentile rank. 15 The 
introduction of the Enhanced ACT prompted the Board to solicit 
recommendations from the eight universities for revised 
admissions standards based on the new test. Each HHI recommended 
use of an Enhanced ACT score of is for regular admission, which 
approximated the previous standard of an ACT score of 1 5 . Each 
HBI recommended use of an Enhanced ACT score of 15 for regular 
admission, the concordant value of which was 1 1 on the old ACT. 
Because the HBIs had previously required an ACT score of at least 
13 for regular admission, this recommendation represented an 
effective lowering of admissions standards at these 
institutions.,s Throughout the system, students not qualifying

performance than either criterion alone.” 
conclusion is supported by the record. Id. at 1482. This

15

Of 18 on the E n h a n c e d ° A C T ^ • lnS^hn̂ e' haS 9 concordant value 
would be in thfsamf percentile r L ^ n a  °f 15 °n the ACTEnhanced ACT. P 1 rankln9 as a score of 18 on the

foreclosed^i^an^earlier^ncreasy Her increase in minimum ACT requirements.
16



for regular admission could be admitted as “high risk” 
exceptions. The recommended Enhanced ACT scores for high risk 
applicants ranged from 14 to 17 at the HWIs, and from 12 to 14 at 
the HBIs. The Board approved all recommendations. 17 

Differential admissions standards thus persisted in the system 
through the 1994 trial and, as found by the district court, 
resulted in the 'channeling effect' described in Fordice.” id. 

at 1434. The district court's remedial order responded to the 
standards in place in 1 9 9 4 .18

Defendants proposed, and the district court ordered 
implementation of, new admissions criteria that standardize 
requirements at all eight universities beginning with 
applications for admission in the fall of 1996. The new criteria

in liohrofhev?den^Ct C°Urt'S r U l i " 9 a9ainst this backdrop and light of evidence concerning educational soundness.
17 The district court noted that although the lower ACT

S E i S S S f  is%heBIn “T  °ri9ina11* ProPosedby°the £55252 25 ' ^  th Board s responsibility to manage the higher education system in accordance with constitutional principles. Ayers II. 879 F. Supp. at 1 4 3 4 . rurional
While it found that admissions policies continued to have segregative effects, the district court also fou^d that

pa£ticioationPof If P°llCy or.Practice of minimizing the £55555” ^  of African-Americans in the [higher education]
~Yr S 11 • 8 7 9 F- SuPP- at 1 4 35. The court found credible evidence indicating that defendants had made substantial

See idSSat°!i' « 3  “ i n ° r i t Y to higher education.£j|e 1 0 . at 1433, 1435. In Mississippi, the ratio of the qtafp’c
shiire of the nation's black enrollment in public four-year
institutions to its share of the nation's blacj poSSati™ is
W *  st«es Seeai’dthetn5'^?nal “ean a"d that °* ”anV n™  de -3-' f spates. See ld^ at 1435. Private plaintiffs aDDear tn
^ Pend !hat the district court’s finding of no current per se p cy of limiting access to the higher education system is
SiSS S ° t neous- we conclude that a"^ c o S t S  i:

17



grant “regular admission” 19 to applicants who have (i) a gpa of 
at least 3.20 in a designated core curriculum, (2) a GPA of at 
least 2.50 in the core curriculum or class rank in the top 50% 
and an Enhanced ACT score of at least 16, or (3) a GPA of at
least 2.0 in the core curriculum and an Enhanced ACT score of at 
least 18. Id. at 1477-78.

The admissions policy ordered by the district court provides 
an important alternative to regular admission through a spring 
screening and summer remedial program for applicants who do not 
meet the reguirements for regular admission. Students 
participating in the spring screening process will take the 
Mississippi College Placement Examination (the “accuplacer”) 
during the spring of their senior year in high school. Based 
upon these scores, Enhanced ACT subtest scores, and counselor 
interviews, students will either be admitted for the fall 
semester or invited to participate in the summer remedial 
program. 20 The summer program is designed to provide ten to 
eleven weeks of remedial instruction in reading, writing, and 
mathematics, taught both in traditional classroom settings and

20 T,__ i appears, based on the language of the RnarH1cproposal and testimony durina trial \-h = +- 1 rne B°?rd s

options. advised to pursue other educational

18



through computer-assisted individual components. id^ at i478.
In addition, the program plan incorporates cultural and 
recreational activities to “climatize” students to the college 
campus. IdJ1 Those students who successfully complete the 
summer program, by passing at minimum the remedial English and 
mathematics courses, will be admitted in the fall.

The district court found that “the new admissions standards 
through their uniformity will eliminate the prior segregative 
effects of the previous differential admissions standards between 
the HBIs and HWIs, noted by the Supreme Court in Fordice.” id_̂  
at 1481. The district court found that as compared with the 
standards litigated in the 1987 trial, the new standards would 
result in an overall increase in the number of black students 
eligible for regular admission to the university system. 22 As

. Although the district court made no specific findinas in
remed?J?ard' the undlsPuted evidence indicates that the summer remedial program is a departure from past remedial practices
order" f5i universit:y system. Prior to the district court's order, full semester remedial courses were offered at each
summerSnrn * Altho!!9h students who are granted admission via the summer program must participate in a year-long academic suooort 
program designed to provide individualized support for marainallv 

students enrolled in regular academi^credl? courts Y 
a^ nJly.many of the remedial courses previously offered during

^ r t T A T . t . r . l l ^ be ell"lnated P I -  ^  ?

impact:,t. The new standards were predicted to have the following

(a) the pool of black students eligible for regular admission to a public HWI will increase from
s ? u d tD 52’5%; (b) the P°o1 of b^ck 
1 9 9 5 wni i 9lble f°r regular admission at the HBIs in co Wldl bf lncreased from approximately 45.3% to 52.5%, (C) the pool of black students eligible for
admission to the system as a whole will also increase

19



1994compared with the standards in place at the time of the 
trial, which were less stringent than in 1987 as a result of the 
1989 changes in requirements at the HBIs, the new standards would 
result in an overall decline in the percentage of black students 
eligible for regular admission to the system. 23 The district 
court noted, however, that the summer program offers a distinct 
opportunity for applicants to gain admission. 1^. at 1 4 7 9 ."
The court found the summer program to be "credible and 
educationally advanced. In its proposed form, it is considered 
by its developers as an educationally sound developmental 
system.” I<U at 1481. The district court concluded that

system as either regular or remediated admittees.
Id.

Finally, although the State's community college system is

1987rstandards°Sed 1 9 9 5 Standards «■ compared with the 
Ayers—II, 879 F. Supp. at 1 4 7 9 .

ACT were '"eligible ̂f or ̂ requi'ar- ̂ admi sc^°°* graduates who took the
system at the time of the 1 9 9 4 trial 10?h SOine university in the
projected to reduce this figure to 52 I T ”***F. Supp. at 1 4 7 9 . y >̂2.5% or 50.7%. Ayers II. 879

“summer program” ̂ nly C°UWe note^hat1S flIldlng. in terms of the
can^ead ^admission fSr ^ T i l ^  ^ " T s S e n i ^ o g r a m  
i^the summer r e m e d i a l £ e £ . f ' ^ F^ ^ ° "

20



the subject of a separate lawsuit, the district court made 
findings and ordered relief in this regard because the community 
college system is relevant to the issue of access to higher 
education. The court found evidence that the community college 
system “can have an impact on the admissions policies of the 
universities and their ability to further diversify institutions 
of higher learning.” Id^ at 1475. The court also found, 
however, that the community college system in Mississippi is not 
providing remediation for students unprepared for four-year 
institutions “to any great degree.” Id^ The district court 
apparently linked this to at least two factors. First, in 
contrast to the open admissions policy that prevailed at all 
community colleges when this case was tried in 1987, some 
community colleges now require minimum ACT scores for admission 
to certain programs. IcL at 1474-75.25 Second, the 
“overwhelming majority” of students who start at the community 
college level do not transfer to four-year universities. Id^ at 
1475. The University of Southern Mississippi has the highest 
proportion of transfer students in its student body, largely 
attributable to its recruiting efforts and articulation 
agreements with several community colleges in surrounding 
regions. IcL, Black students transfer at a significantly lower

25

colleqe is ̂ iot ^ A°T CUt°flfs for admission to the community lege is not an issue in this case, and the district court -̂i*
not make findings or conclusions with respect to the
onstitutionaiity of this practice. Accordingly, we do not

opinion. aSPeCt °f the COITm,unity college system in our

21



rate than whites, possibly because a high percentage of black 
students in community colleges are enrolled in two-year 
vocational programs.

The district court concluded that the State “is losing a 
valuable resource in not coordinating the admissions requirements 
and remedial programs between the community colleges and the 
universities.” Id, The remedial decree contains a provision 
ordering the Board “to study the feasibility of establishing 
system-wide coordination of the community colleges in the State 
m  the areas of admissions standards and articulation 
procedures,” and to report its findings to the Monitoring 
Committee. id, at 1496.

k* Arguments on appeal
The district court s finding that undergraduate admissions 

policies and practices are vestiges of de jure segregation that 
continue to have segregative effects is not contested on appeal. 
Plaintiffs do contest the remedy thereupon ordered.

Plaintiffs challenge to the admissions remedy has two 
parts. First, plaintiffs argue that the district court's 
adoption of the Board's proposed standards was improper because 
these standards will significantly reduce the number of black 
students eligible for regular admission to the university system, 
and thereby disproportionately burden black students with a loss 
of educational opportunity. Plaintiffs assert that the district 
court was obligated by Fordice to consider the educational 
soundness of alternative proposals that would have excluded fewer

22



so.black students, but failed to do
Second, plaintiffs argue that the district court's reliance 

on the spring screening and summer remedial program to compensate 
for the projected decline in regular admission of black students 
was inappropriate because the program was untested and 
incompletely defined at the time of trial. Plaintiffs contend 
that although the district court found the summer program to be 
“credible and educationally advanced,” it did not specifically 
find that the program would be an effective means of identifying 
students capable of succeeding in college or that it could 
achieve the same results as “existing remedial p r o g r a m s . m  
addition, plaintiffs argue that the summer program is not a 
viable option for the many black students who must work during 
the summer in order to afford to go to college in the fall, and 
that the community college system currently does not provide an 
adequate alternative. Plaintiffs therefore argue that the Board 
should be required to maintain existing remedial courses and to 
adopt standards that minimize any reduction in the number of 
black students eligible for admission, at least during the period 
that the summer program is being tested and the community college

**&5SE&BSiESSag3P

23



system undergoing change.

Although their criticise of the new admissions standards 
coincide, private plaintiffs and the United states advocate 
different admissions policies as alternatives. Private 
plaintiffs proposed below and re-urge here adoption of a tiered 
admissions policy, in which admissions reguirements vary along 
with the mission of each university,2' with the most accessible 
tier having “open admissions." By “open admissions,” private 
plaintiffs mean a policy of granting admission to students with a 
high school diploma and ACT score of 10. at 1480. Under
private plaintiffs' proposal, the three comprehensive 
universities would use the admissions standards proposed by the 
Board, and Jackson state University would have open admissions 
for eight years with the option thereafter of gradually raising 
admissions standards to the level prevailing at the comprehensive 
universities. Id^ Existing remedial programs would be 
strengthened in this scheme.

The united states proposed below and re-urges here an 
admissions policy, which was presented to the Board in 1992 but

State Unpirsi?” a r r “LmprehensiJe"Minive?si?i4sanwhichSo??iPPi 
statruniv“ si??9L s nanh"u?bfn"1mVel °t ?e9ree Jackson
~ £ a t 1  ^ “ S°ShiSh1 T T . tS c ^ S n
Si“ e?sf^y for w ^ e n 1^ 0^ ^  State UniVerSity'“regional" « v.r" ie th" S ? P1'V a U ?y stat* diversity are education. In priJaie b^a^tf??.' Pr“ « H y  °n undergraduate 
universities w o S l ^ n s S f t S I E  m L T a ^ c ^ i b ^

24



would be granted tonever adopted, in which regular admission 
students achieving (!) a 2.0 GPA in the core curriculum and a 
minimum of 16 on the Enhanced ACT or (2) a 2.50 GPA in the core, 
a ranking in the top 50% of the class, and a minimum of 13 on the 
Enhanced ACT.28 The United States contends that under this 
standard, an estimated 73.6% of black students who took the ACT 
would qualify for admission, as compared to 52.5% or 50.7% under 
the proposal adopted by the district, court. The United States 
states that “ACT predictive data indicate that, at the [HBIs], 
where remedial instruction was given, freshmen with these 
qualifications could be expected to achieve at least a C 
average.” U.S. Br. at 12.

Defendants argue that the new admissions criteria wholly 
eliminate prior policies traceable to de jure segregation. 
Defendants contend that the new admissions standards sufficiently 
address the concerns articulated in Fordice because they do not 
differentiate between universities according to historical racial 
designation and do not rely on the ACT as the sole criterion for 
admission. Defendants argue that under Fordice. the traceable 
admissions policy was the Board's particular use of differential 
ACT cutoff scores, which effectively channeled black students to 
the HBIs, and not use of the ACT per se. Accordingly, defendants 
contend that the new policy is not traceable to the prior de jure

28, The district court noted that the United States “has
4yers 11' 8 7 9 F- SuPP* at 14807States does not urge this standard on appeal. The United

25



system end may be implemented because the record discloses that 
it is educationally sound and was not adopted for a
discriminatory purpose. While defendants maintain that F o r d W  
does not require the district court to select the educationally 
sound alternative with the least discriminatory effect, they 
argue that even if the district court did have such an 
obligation, its findings regarding the segregative effect and
educational soundness of the new admissions standards effectively 
discharged it.

c. Analvsi s
The district court's findings that the new criteria for 

admission are educationally sound and will not perpetuate 
segregation within the system are not challenged on appeal. 
Plaintiffs contend, rather, that the district court erred by 
failing to consider the educational soundness of proposals that 
would have resulted in a smaller reduction in the number of black 
students excluded from regular admission.

We agree with plaintiffs that it would be inappropriate to 
remedy the traceable, segregative effects of an admissions policy 
in a system originally designed to limit educational opportunity 
for black citizens by adopting a policy that itself caused a 
reduction in meaningful educational opportunity for black 
citizens. we do not, however, understand the district court to 
have done so. The district court considered and rejected 
alternative proposals as educationally unsound, and expressly 
contemplated that the remedial route to admission could alleviate

26



any potential disproportionate impact on those black students who 
are capable, with reasonable remediation, 29 of doing college 
level work.

We understand the district court to have determined, in the 
specific context of formulating an appropriate remedial decree in 
this case under Fordice, that access to higher education must be 
provided only to those applicants who can demonstrate, based on 
educationally sound and constitutionally permissible indicators, 
an ability (with reasonable remediation) to do college level work 
and who therefore have a real prospect of earning a degree. 30 

The court found that admission of students unprepared to do 
college level work may result in significant attrition 
accompanied by unprofitable debt accumulation. Avers IT. 879 F. 
Supp. at 1435.31 Fordice does not require that all students who

29
issue reflects that each of the universities athere has for many years recognized that remediation is appropriate to enable certain students successfully *.
uriiidVhUCati°n' ThC a"0Unt °f radiation that has beer 3 provided has varied among the universities. We recognize that how much remediation is appropriate or “rea^nn^hio” j 
by concepts of practrcabi?^t/and^dScat^naT^ndn^s^0™ *
student* * * 1 Mi,fsissiPPi universities at issue here require students to achieve at least a C average in order to graduate 
Indeed, as indicated in our discussion below, all parties kev* 
SttZ ^tguments regarding the educational soundness of Yalternative admissions proposals to this standard.
maintain The court found that Louisiana institutions, which maintain open admissions, ‘‘suffer from a very high attrition rat resulting in students owing one, two or thre^ vefr* o£ rate
expenses and having little or nothing to show for it.” Avers^T

s r s S '

Boylan testified that "(access without an opportunity io succeed
27



would have been admitted under the prior, unconstitutional 
admissions standards be admitted under the reformed admissions 
standards without regard to the educational soundness of the 
reformed standards, instead, the district court's mandate under
£gr4^Ce WaS limited to reforming traceable, segregative policies 

the extent practicable and consistent with sound educational 
practices.” 505 U.s. at 729.32 Having found admissions 
policies and practices to be traceable to the de jure system and 
to have present segregative effects, the district court properly 
focused its consideration of alternative admissions policies on 
their educational soundness and potential to eliminate existing 
segregative effects; its focus, in turn, on ability to do college 
level work is consistent with both the evidence as presented by 
plaintiffs and Fordice.

i- Rejection of plaintiffs' ornnn^lc

isn t really access, 
a revolving door.” If you have an open door it quickly becomes

The Court in Fordice declined would require the State to eliminate 
present discriminatory effects of the

to adopt a standard that 
insofar as practicable all prior system:

us We understand Private petitioners to urgeocus on Present discriminatory effects without
rootedSin9thh6ther SUCh conse(Iuences flow from policies Thm>S thri°r system, we reject this position.
as" shiripn!-9h they Seem t 0  dlsavow as radical a remedy as student reassignment in the university setting Y
their focus on student enrollment, faculty and staffemployment patter, [and] black citizens'coUege-
™  H'and de9 ree-granting rates” would seemingly9compel

rkl\ t0 thOSe upheld in green v- g°MS.V Kent County were we to adopt their legal standard.
505 U.S. at 730 n.4 (citations original); see also id. at 732 omitted) n. 6 . (second alteration in

28



The district court set forth in detail the respective 
admissions standards proposed by private plaintiffs and the 
United States. £ee Ayers II, 879 F. Supp. at 1479-80. Although 
the district court credited expert testimony indicating that 
differential or tiered admissions standards are both sound and 
routinely used, id̂ . at 1482, it did not adopt private plaintiffs' 
proposal in light of its finding that the open admissions 
component of this proposal was educationally unsound. Id^ at 
1481-82. The district court found that

tSiardSh?ihS ac^oss the nation generally are moving
Accordino re{?uirements, not lower ones.the testimony, students in working toward
If thpv1^ iUSUally d° that which is expected of them, 
colleae b v^Jw need n0t PrePare themselves for
they Sil? no? d" 9 ^  curriculum in high school,them t?XL??o 5 0 * SUGh ^Preparedness may bringcollege campuses unable to execute the rigors of coiiege work and result in low retention ratSs
degrees ^  aC^ ffi“latl°ns and years expended with no ofg5?-; • • • Jt has_also been shown that institutions Stndon? learning which open their doors to unprepared students via open admissions not only do a disservice 
o many of the admittees, but can lower the quality

ge?4 ral?yUr y' ^  preStige of the institutions

~  at 1482-83. These findings are not clearly erroneous, and 
the district court did not abuse its discretion in rejecting 
private plaintiffs proposal.

Even assuming that tiered admissions could be implemented 
without open admissions as a component thereof, it was not an 
abuse of discretion in this context for the district court to opt 
instead for a policy based on uniform standards. in the 
Mississippi system of higher education, differential admissions 
criteria were rooted in the de jure past and fostered both

29



perception that thesegregation of the races and the public 
institutions with lower standards ~  the HBIs ~  were of inferior 
quality. Id*, at 1477, i486. A tiered system would continue to 
differentiate among institutions based on their respective 
missions. See at 1482. In light of the history of 
differential admissions in Mississippi higher education, and in 
light of its finding that policies and practices governing the 
missions of the universities are traceable to de jure segregation 
and continue to have segregative effects, the district court was 
within its discretion to unify standards across institutions.

The standards proposed by the United States met this 
interest in uniformity, but were fixed at a level that the 
district court found to be educationally unsound. Under the 
United States's proposal, students with a 2.5 GPA and a class 
rank in the top 50% would qualify for regular admission with an 
Enhanced ACT score of 13. while this formula adds high school 
grades and class rank into the eligibility determination, it 
nevertheless represents a lowering of the ACT score requirement 
from even post-1989 levels at the HBIs. In contrast, students 
with identical qualifications would need an Enhanced ACT score of 
16 to qualify for regular admission under the Board's proposal.
The district court concluded that the requirements for regular 
admission under the Board's proposal were “quite moderate,” and 
stated that it “does not find persuasive or educationally sound 
the adoption of open admissions or continually lowering 
admissions standards, as was done at the HBIs after the 1987

30



trial. —  We understand this finding to encompass the 
standards endorsed by the United States.

Both plaintiffs and defendants cite ACT predictive data in 
support of their respective proposals. The United States points 
out that such data indicates that students with the minimum 
qualifications they propose would be expected to achieve at least 
a C average by the end of their freshman year at each of the 
HBIs. We note that such students are predicted to complete their 
freshman year with grades significantly below a C average, the 
minimum required for graduation, at any of the HWIs. See 
PP 39-R. Defendants highlight a different aspect of the same 
predictive data, which the district court apparently found 
persuasive: students with the minimum qualifications proposed by
the Board would be expected to complete their freshman year with 
a C average or slightly below at each of the HWIs. The district 
court s finding that the Board's proposed standards are “quite 
moderate” is indeed supported by the evidence. On this record, 
the district court could fairly conclude that it would be 
educationally unsound to adopt an admissions policy under which 
students could do college level work at only three institutions 
in rhe system. 33 We realize that no set of standards is without 
its flaws. Significantly, as we discuss below, the standards 
that the district court did adopt provide an alternative route to

. . Under the United States’s proposal, the three
ihStinTtl0nS at which students could do college level work are
couldhave lh& Standards Pr°P°sed by the United States therefore could have the perverse, albeit unintended, effect of
perpetuating the channeling effect described in Fordice.

31



Theadmission that does not rely on ACT scores whatsoever, 
district court's decision to order implementation of this system 
rather than dilute standards for regular admission, was a proper 
exercise of its discretion.

1 1 * Reliance on spring screening and summer- remedial program
The district court recognized the likelihood that the 

Board's standards would reduce the number of black students 
eligible for regular admission as compared to then-prevailing 
standards, 34 and chose to adopt them only in conjunction with 
the additional opportunity to gain admission through the spring 
screening and summer remedial program. The district court was 
unable to conclude that the new standards, which provide an 
alternative route to admission that does not rely on ACT scores 
whatsoever, 35 would actually reduce the total number of black 
students eligible for admission either as regular or remediated 
admittees. In light of the district court finding that lowering 
admissions standards “as was done at the HBIs after the 1987 
trial” is educationally unsound, the court apparently determined 
that to the extent any reduction in the number of black students 
eligible for admission relative to post-1989 standards does take

tha Board's ' s t a n d s  ̂ the
ex?steLadatiS?ie°ntr 1V r reaSe relative'to^ndardl^ 1’ 1 6 ^
Supp «  1 4 7 9 trlal ln 1987' See Avers IT. 879 F.

reaardle«Cfldin9Jt° the Board' anV high school graduate 
screening5 T h e b e ' perf°r"'an«. participate in spring
screening take the Ic? I d ^ " ^  “ “  ParticiP*hts i" spring

32



place, it may reflect the educational unsoundness of prior 
policies. As contemplated, the new standards should result in 
the identification and admission of those applicants who, with 
reasonable remediation, can do college level work. This is 
consistent with fordice's mandate of a reformed admissions policy 
that is practicable and educationally sound.

The district court also recognized that the spring screening 
and summer remedial program was untested and its standards not 
fully established at the time of trial. See id^ at 1478-79,
1481. we think that the program was sufficiently defined that 
the district court did not abuse its discretion in ordering its 
implementation. If, however, as plaintiffs suggest may be the 
case,36 the spring and summer program is unable to any 
significant degree to achieve its intended objectives of 
identifying and admitting otherwise eligible applicants —  j.e,. 
applicants who could, with reasonable remediation, successfully 
complete a regular academic program —  for whatever reason, then 
the program must be reevaluated.37 The district court's proper

presents rec^ntfrd^covere^^vi^e^l con^rni^g \h^first ̂ ea^1 s implementation of the new standards and the Spring and s u L ^

n b i ^ Th\ diStriCt court s conclusion that the Board's

33



retention of jurisdiction over this action indicates its intent 
to examine this important component of the admissions system once 
the relevant data becomes available.38 if the district court 
ultimately concludes that the spring screening and summer 
remedial program (as it may be modified) is unable to any 
significant degree to achieve its objectives, then the court 
should, if possible, identify and implement another practicable 
and educationally sound method for achieving those objectives.

iii* Elimination of existing remedial coursps 
We have thus far addressed the spring and summer program as 

a component of the reformed admissions policy. We turn now to 
the argument made by the plaintiffs that the district court erred 
in relying upon the summer remedial program to replace the 
existing remedial courses in the absence of a finding that the 
summer program could achieve the same results as the 
universities' existing remedial courses in enabling students to 
succeed in and graduate from college.

We note in this connection that the plan proposed by the 
Board provides that “[d]evelopmental studies are only offered

academic placement analysis ” Avprc tt m o  t? <-
«a°soSWeS in9 insofar •• is

oPthePable °f d°in9 £vel Wor*
ZJ& TrXtrlT-i—  ‘Ar-nV ~ rr 5SSV E ""

38____—  £feen v- County Sch. Bd. . 391 U.S. 430 439

removed.”). * G lmposed segregation has been completely

34



during the summer session.” In ordering implementation of this 
plan, the district court tacitly approved the elimination of 
most, perhaps even all, of the remedial courses that had been 
offered by all the universities at issue here, most notably by 
the HBIs. This is a troubling decision, implicating the reformed 
policies for regular admission as well as the spring screening 
and summer remedial program. On the one hand, there was evidence 
to indicate that an intensive, structured program of remedial 
instruction during the summer months prior to a student's 
immersion in the college experience may actually be more 
effective at preparing students for college than a more diffused 
program of remedial instruction throughout the academic year. On 
the other hand, the district court appeared to base its decision 
not to consolidate Mississippi Valley state University with Delta 
State University, at least in part, on the significant percentage 
of students enrolled in remedial, or developmental, education at 
Mississippi Valley and on Mississippi Valley's role as “a 
significant nurturer of underprepared blacks,” id^ at 1 4 9 2 , a 
role that the district court apparently did not want to see 
eliminated.39 Further, it is not clear to what extent the 
operative predictive data assumes the existence of remedial 
programs insofar as it is based on historical achievement. It is 
clear that the predictive data relied upon by the State in

39• . We flnd it: significant that the presidents of
s t h e ^ t u d e n t s ^ t h e y

35



support of its argument that its proposed admissions standards 
were “quite moderate" indicate that students who are admitted 
with the minimum quantisations required under the new standards 
are not predicted to achieve a c average during their first year 
at at least three of the HWIs. This suggests, as defendants note 
in their brief and indicated at oral argument before this court, 
that many students who are admitted under the reformed standards 
will need “substantial educational assistance," possibly 
including remedial courses." Remedial courses may be an 
important part of the admissions policy at any school in which a 
significant number of students are not predicted to achieve a c 
average during their first year.

The plaintiffs did not challenge the State’s existing 
remediation policies as traceable to the de jure era. There was 
therefore no requirement, under Fordice, for reformation of those 
policies as such. However, the Board's proposed admissions 
standards (Bd. R-202) treated the adoption of the summer program 
and the elimination of the existing remedial courses as 
components of its admissions standards, and the district court, 
m  ordering the implementation of the Board’s proposal, 
effectively did the same. The principle that apparently 
underlies the Board's admissions policy (and, therefore, the

S S ”= i s = S , S
36



district court’s decision) is that, in the case of any applicant 
what can and cannot be accomplished with reasonable remediation 
is a key element of the admissions decision. Clearly, this 
principle is educationally sound. But the court's action in 
eliminating the existing remedial courses can legitimately be 
challenged by plaintiffs as an inappropriate feature of the 
court's admissions remedy. We have recognized that there are 
some tensions in the district court's findings in this regard.
In the light of these tensions and the absence of specific 
consideration of the justification for, or reasonableness of, 
eliminating these unchallenged courses, we are sufficiently 
concerned about the district court's exercise of its discretion 
m  thls regard to direct the court on remand to reconsider its 
decision to eliminate these courses. On remand, the district 
court should determine if remedial courses are needed to help 
ensure that students admitted under the new admissions criteria 
have a realistic chance of achieving academic success.41

iv. Timing
The United States argues that it may take several years for 

the summer program to be thoroughly implemented, tested, and 
evaluated and argues that during the interim, an admissions 
policy that minimizes any reduction in the number of black

41

decision whether to take more evidence on the 

With the summer remedial program, is left to the distaic? co“ t.
37



be installed.42students eligible for regular admission should 
We reject this argument. The summer program has sufficient 
promise, on the present state of the record, to allow it “to 
prove itself in operation,” Green v. Countv snh n* 391 u>s>
430, 440-41 (1968), should the district court decide to continue 
on that path. There is no reason why, however, reconsideration 
of the district court's decision to eliminate the existing 
remedial courses cannot be done promptly. We intimate no view on 
the outcome of that reconsideration.

d* Conclusions regarding undergraduate admissions standards ------------- —
Except as set forth below, we affirm paragraph 2 of the 

remedial decree which reads in relevant part as follows: “The 
1995 admissions standards as proposed by the Board for first-time 
freshmen, effective for the academic year (1996-97], shall be 
implemented at all universities.” Ayers II. 879 F. Supp. at 
1494. We do not affirm paragraph 2 insofar as it eliminates the 
remedial courses previously offered at each of the eight 
universities. We remand this latter issue for reconsideration in 
the light of this opinion. We understand the district court's 
continuing jurisdiction to encompass the evaluation of the 
effectiveness of the spring screening and summer remedial

to the tiie a Si1milar arc?uinent with respect. ime cnar it will take to implement chancre =,+-

t?meerto»tati?n °f this aspect of the remedial'decree wUl £aLpolicy?eS nDt rSqUlre installation of an interim admissions

38



program, as a component of the admissions system, in achieving 
its intended objectives of identifying and admitting those 
students who are capable, with reasonable remediation, of doing 
college level work but who fail to qualify for regular admission. 
Should the district court ultimately conclude that this program 
(as it may be modified) is unable to any significant degree to 
achieve its objectives, then the court will need to identify and 
implement another method for achieving those objectives.

3. Scholarship Policies
a* District court ruling

While the district court found that undergraduate admissions 
policies in general are vestiges of de jure segregation that 
continue to have segregative effects, it found that scholarship 
policies in particular are not. On remand, plaintiffs challenged 
the use of ACT cutoff scores for the award of undergraduate 
academic scholarships at the HWIs, as well as the use of ACT 
cutoff scores and alumni connection in the award of nonresident 
fee waivers for out-of-state admittees.43 Unlike most other

43 The n°nresident feG waivers for children of nonresident
scholarship^6”err»ed t0 ln thG record also as “alumni scholarships. Our use of the term “scholarships” encompasses
uSf?heCt ^ ° ‘‘arShipS,aS WeU aS r e s i d e n t  f e e w a i v e d  bu^ we
this type of awa?d6S ^  WaiVer when referring solely to

= u°te that Mississippi University for Women offers certain
that ?eaui?e t° reSlden  ̂and President children of MUW alumni reqdlre a minimum ACT score of 21 for eligibility These scholarships are distinct from the nonresident fee waivers but Plaintiffs challenge the use of the ACT cutoff sJore and ?Ae
scholarshipsCas°well.dGterm^n^n9 eligibility for these

39



forms of financial aid, the scholarships challenged by plaintiffs 
are generally awarded on the basis of academic achievement, not 
financial need, and do not require repayment by the recipient.
The district court found a significant disparity in the 
percentage of nonresident fee waivers awarded by race in any 
given year. 1^. at 1433. The evidence indicated similar 
disparities in the award of academic scholarships. The district 
court concluded, however, that

waiveri^to hi k S 1 y of allowing [nonresident fee ] to be based on ACT cutoffs and the use of ACT cutoff scores as the sole criterion for the receipt of
liikigiCwith°iirS!jiP in0nieS haS n0t been Proven to have linkage with the de ~]ure system, and there is no

tha  ̂th6Se Practices currently foster
Shoi“  ?hirp^he raC6i such.as influencing student c a n n o t  TheJefo5e' reformation of these policies cannot be ordered consistent with the law of the case
c o ^ f f i n d s T *  °f liscriminatory purpose of which ?h4 court finds none. The use of ACT scores in awardina

ls.wldesPread throughout the United Stltes and generally viewed as educationally sound.
—  at 1434-35 (footnote omitted). The district court did not 
make a specific finding with regard to the traceability of the 
alumni connection requirement for nonresident fee waivers. The 
remedial decree does not order alteration of any of the 
challenged scholarship policies.

b- Arguments on apppai
Plaintiffs argue that the district court clearly erred in 

finding that the use of ACT cutoffs in the award of academic 
scholarships and nonresident fee waivers at the HWIs is not 
traceable to the dual system and does not have segregative 
effects. Although the district court's findings and conclusions

40



with respect to academic scholarships focus specifically on 
policies that establish an ACT cutoff score as the sole criterion 
for award, plaintiffs' challenge encompasses all instances in 
which the HWIs require a minimum ACT score for scholarship 
eligibility.44 Accordingly, plaintiffs have identified on 
appeal numerous scholarships at various HWIs that are available 
only to students with certain minimum ACT scores. Plaintiffs 
contend that the use of ACT cutoff scores for scholarship 
eligibility is traceable to the de jure system because under that 
system ACT cutoff scores were implemented for the purpose of 
excluding black students from the HWIs. The segregative effects 
of this practice, plaintiffs argue, are evident in the racial 
disparity in scholarship awards. Because black students receive 
only a very small proportion of such scholarships, yet are more 
likely than white students to be in need of financial aid, the 
policy effectively reduces the number of black students able to 
attend the HWIs. Moreover, plaintiffs argue that the record does

, -̂n Pretrial Order, private plaintiffs listed ac a
sP?pi!;fnged remnant “[t]he policy of using ACT cutoff scores in selecting persons to receive particular scholarships at the
idenSifdaJh leV?? aV ach HWI*” The United States similarly ACT L  «  B J alleged remnant as “[t]he practice of using the ACT m  selecting persons to receive scholarships at the 9 undergraduate level.” p
u . si^nificantiy, plaintiffs do not challenge any of the scholarship policies at the HBIs and no party argues on appeal that such policies either are traceable to the d ^ W e ~  

have present segregative effects. Accordingly, we^xpress no opinion on the scholarship policies at the HBIs or their 
relevance in reforming scholarship policies to eliminate present 
segregate effects. m  fashioning the most appropriate K m e d f

court may £ind i c

41



not support the district court's finding that the use of ACT 
cutoff scores in the award of scholarships is widespread.

Plaintiffs also contend that the district court erred in 
upholding the practice of limiting nonresident fee waivers to 
children of an institution's alumni. Plaintiffs maintain that 
the alumni connection reguirement is traceable to the de jure 
system in that parents of today's students were systematically 
excluded from the HWIs under the de -jure system. 

c- Analysis
Although it is clear from the record that undergraduate 

scholarship policies were litigated on remand, the district court 
made virtually no fact findings with regard to specific policy 
criteria or operation. The parties' original briefing of this 
issue on appeal was also scant.45 in response to our request 
for supplementary briefing, plaintiffs provided a summary of the 
challenged policies along with the racial breakdown of their 
distribution for the 1992-93 year (and in one instance, for the 
1991-92 year). Defendants have not contested the accuracy of 
this summary, which is drawn from defendants' answers to 
interrogatories and from other evidence introduced by defendants. 
We therefore accept plaintiffs’ factual summary. According to 
that summary, the scholarships alleged to be traceable to de jure 
segregation and to have present discriminatory effects are as

45

“ “ p p - r rw % ^ e ssetded°,f and 
schola?ship=PP tal briefi"9 the issue of undergraduate

42



follows:

DELTA STATE UNIVERSITY First-time freshman enrollment 1992-93: 21% black
ScholarshipName" MinimusACTScore

Nuabe' of Recsipients Dollars Received
Black White Total Black White Total

Dean's and 
Presidential 26 2 160 162 $1,375 $131,175 $132,550

1% black 1H black

MISSISSIPPI ST#TE UNIVERS][TY First-time freshman enrollment 1992-93: 16% blank
ScholarshipName MinimusACTScore

Number of Recipients Dollars Received
Black White Total Black White Total

Entering 
Freshman ACT 8,000

31 1 294 299 $2,000 $546,000 $555,000

Sharp Forestry 31 0 3 3 0 7,500 7,500Entering 
Freshman ACT 5,000 and Schillig

29 5 454 468 16,250 596,836 626,836

Ramsey & 
Elaine O'Neal and Hearin- Hess

26 0 41 41 0 115,500 115,500

Entering 
Freshmen ACT 
4,000, South 
Central Bell, 
and Jesse & 
Lillian Tims

28 5 248 267 7,944 239,444 261,388

Leadership 20 8 71 80 3,600 34,450 38,550John C. 
Stennis 24 1 6 8 1,000 6,000 8,000
Alumni 21 N/A N/A N/A N/A N/A N/ATOTAL 20 1117 1166 $30,794 $1,545,730 $1,612,774

2% black 2% black

46, , Plaintiffs advise in their brief that in some instances
h»C hf°r “0re than °ne scholarship with the same ACT cutoff score
SScJSShiTSEf'l ThiS re“ eCtS the ”ay defendants p r o v e d  ”scholarship data in response to interrogatories.

43



MISSISSIPPI UNIVERSITY FOR WOIIEN 
First-tiae freshaan enrollaent 1992-93: 21% black
ScholarshipNaas MiniauaACT Nuaber of Recipients Dollars Received

Score Black White Total Black White Total
Centennial and 
Eudora Welty 26 0 26 26 $0 $142,464 $142,464
Regional 21 _____2 68 70 1,200 74,400 75,600Aluani 21 2 50 52 600 32,540 33,140Academic 21 10 208 218 3,402 111,500 114,902Valedictorian 21 0 6 6 0 7,075 7,075Salutatorian 21 0 6 6 0 4,125 4,125TOTAL 14 364 378 $5,202 $372,104 $377,306

4% black 1% black
First-time freshman enrollment 1991-92: N/A
ScholarshipNaae MiniauaACT

Score
Nuaber of Rec: ipients Dollars Received
Black White Total Black White TotalSpecial

Conditions 21 34 154 188 $40,820 $139,163 $179,983
Academic 25 0 79 79 0 130,425 130,425 |TOTAL 34 233 267 $40,820 $269,588 $310,408 I

13% black 135b black

UNIVERSITY OF IIISSISSIPPI First-time freshman enrollment 1992-93: 7% black
ScholarshipNaae MiniauaACT

Score
Nuaber of Rec.Lpients Dollars Received
Black White Total Black White TotalChildren of 

Nonresident Alumni
21 1 305 307 $1,960 $529,512 $533,432

Children of 
Faculty & 
Staff Post- 1977

18 10 106 118 14,092 88,540 104,196

Children of 
Faculty & Staff Pre- 
1977-76

19 10 104 116 19,780 195,263 215,783

Academic 28 6 683 701 14,130 1,608,555 1,641,805Academic 30 2 27 29 9,500 105,000 114,500Academic 22 9 240 253 11,350 244,467 258,642

44



Special
Conditions 22 6 130 140 6,810 211,550 224,240
TOTAL 44 1595 1664 $77,622 $2,982,887 $3,092,598

3% black 3% black

UNIVERSITY OF SOUTHERN III !S51SSIPPI First-time freshman enrollment 1992-93: 27% bind
ScholarshipName MinimumACTScore

Number of RecLpients Dollars Received
Black White Total Black White Total

Presidential, Schillig- 
Baird, Pulley, Pulley, and Gough

29 0 36 36 $0 $194,043 $194,043

AcademicExcellence 28 7 352 371 8,375 773,490 816,860
Regional 25 0 43 47 0 72,914 79,774Alumni 21 1 143 146 1 ,960 230,333 236,213TOTAL 8 574 600 $10,335 $1,270,780 $1,326,890

1% black 1% black

The district court found that basing scholarship eligibility 
on ACT cutoff scores is not traceable to the dual system and does 
not have current segregative effects. We agree with the 
principle articulated by the district court that use of an ACT 
cutoff is not unlawful in all circumstances. “Rather, its 
particular use in any circumstance must be examined to consider 
whether as a component of the policy challenged, the same is 
traceable to prior de,jure segregation.” Avers IT. 879 F. Supp. 
at 1434. In light of the facts set out above, however, we 
conclude that the district court erred in arriving at its 
findings regarding traceability and segregative effects.47

47

cutoffs Our conclusion in this regard applies to the in all challenged scholarships. use of ACT

45



The district court may have applied an erroneous view of 
traceability. As defendants point out in their supplemental 
letter brief, a traceable policy is one “rooted in” the prior 
dual system. See Fordice, 505 U.S. at 730 n.4, 732 n.6, 7 4 3 . it 
is only “surviving aspects” of de, jure segregation that a state 
need remedy, gee .liL. at 733. That is not to say, however, that 
a challenged policy as it exists today must have been in effect 
during the de jure period in order to be constitutionally 
problematic. The undergraduate admissions criteria that the 
district court found to be traceable, for instance, had been 
modified several times since the de jure era but nonetheless were 
found to be rooted in the prior system. Similarly, the Supreme 
Court found Mississippi's scheme of institutional mission 
classifications to be traceable to de jure segregation even 
though it was not put in place until several years after 
termination of official segregation. See id^ at 732-33, 739-41. 
The Court noted that “[t]he institutional mission designations 
adopted in 1981 have as their antecedents the policies enacted to 
perpetuate racial separation during the de -jure segregated 
regime.” Id^ at 739. m  United States v, Louisian* this court 
implicitly recognized that Louisiana's open admissions policy 
could be traceable to that state's prior de jure system despite 
its adoption only after de.jure segregation had ended. See 9 
F.3d at 1167. Because the district court had not addressed the
policy s traceability, we left the issue open for resolution on 
remand. id.

46



record does notIn this case, plaintiffs concede that the 
contain evidence directly linking the use of ACT cutoffs for 
scholarship purposes with any time prior to 1980. Such evidence 
apparently was not developed because plaintiffs concluded, in our 
view correctly, that the discriminatory use of ACT cutoffs to 
exclude black students from the HWIs during the de jure period 
establishes traceability with respect to all current practices 
that limit black student access to the HWIs by setting ACT cutoff 
scores at a level that disproportionately favors white students. 
Defendants contend that plaintiffs have failed to prove 
traceability because they have not produced evidence establishing 
that the practice of using ACT cutoffs in the award of 
scholarships was initiated either “(i) during de jure 
segregation, (ii) as an integral component of de jure 
segregation, (iii) to continue, perpetuate, or further 
segregation, or (iv) because of some intentionally segregative 
policy which formerly existed.”48 This argument misses the 
mark. First, to the extent defendants suggest it is lacking, 
evidence of discriminatory purpose is required to establish a 
constitutional violation only for present policies that are not 
traceable to the prior system; discriminatory purpose is not an 
element of traceability itself. Fordice. 505 U.S. at 733 n.8. 
Second, this argument ignores the relationship between

" ^yp0n motion Plaintiffs, the district court placed the

this Respect ?h°Ut a i s t r ^ c o ^ d i f
47



scholarship awards and grants of admission, an element nissing 
from the district court's analysis as well.

Scholarship decisions are not wholly independent of 
admissions in the way that most financial aid determinations are. 
Indeed, the record indicates that at University of Mississippi, 
Delta State University, and Mississippi University for Women, the 
application for admission also constitutes the application for 
scholarships. it is because scholarships are intended to reward 
exemplary academic achievement, as defendants point out, that 
scholarship decision criteria overlap more with those for 
admission than for financial aid. By their nature, scholarships 
are designed to attract outstanding students to the awarding 
institution; that scholarships need not be repaid is a powerful 
incentive for students to both pursue and accept them. As a 
component of admissions, scholarship policies further the process 
that ultimately culminates in matriculation. In finding that the 
use of ACT cutoffs in the scholarship context is not traceable to 
the de_ -jure system, the district court may have distinguished 
scholarships too strictly from admissions, although its opinion, 
which addresses scholarships as a component of admissions, 
suggests otherwise. See Ayers II, 879 F. Supp. at 1424, 1431-35.

As presented by plaintiffs, the challenged scholarships 
require students to achieve a certain minimum ACT score to be 
eligible for the award. Accordingly, a student who has not 
achieved the requisite ACT score will not be considered, 
regardless of how impressive his or her grades or other academic

48



achievements might be. This is “constitutionally problematic” 
for the same reason the Supreme Court found the use of the ACT in 
admissions to be so. See fordice, 505 U.s. at 736 (“Another 
constitutionally problematic aspect of the State’s use of the ACT 
test scores is its policy of denying automatic admission if an 
applicant fails to earn the minimum ACT score specified for the 
particular institution, without also resorting to the applicant’s 
high school grades as an additional factor in predicting college 
performance.”). Just as there may be students who could do 
college level work yet might be precluded from enrolling in an 
institution that maintains ACT cutoffs in admissions, there may 
be students who have outstanding academic achievement that merits 
recognition apart from their ACT scores.

It bears emphasis that the use of ACT cutoffs in the award 
of scholarships raises constitutional suspicion only because of 
the history of de lure segregation in Mississippi. The practice 
of rewarding academic achievement as determined by standardized 
test scores, even where it results in significant racial 
disparities in receipt of awards, is not per se unconstitutional. 
Use of ACT cutoffs does not take place on a clean slate in 
Mississippi, however. The alleged practice of basing scholarship 
eligibility on minimum ACT scores flows from earlier 
discriminatory use of ACT cutoffs and therefore triggers further 
constitutional inquiry, under Fqrdice, into whether it continues 
to have segregative effects.

The use of ACT cutoff scores in the award of scholarships

49



restricts black students' access to the HWls in much the same way 
that the use of ACT cutoff scores in a system of differential 
admission standards was found to restrict access. The district 
court findings and other evidence indicate that scholarships with 
ACT cutoff scores are disproportionately awarded to white 
students. £ee &yers II, 879 F. Supp. at 1433. In addition, the 
district court found that black applicants to Mississippi's 
universities are more likely to need financial aid than white 
applicants, id^ at 1433-34 n.28. To the extent that
academically accomplished black students are unable to achieve 
ACT scores that would qualify them for scholarships at the HWIs, 
they are discouraged from both applying to and matriculating at 
these institutions while the potential segregative effect of 
the use of ACT cutoffs in determining scholarship eligibility is 
perhaps somewhat less pronounced than that of the use of ACT
cutoffs in admissions, the evidence nevertheless indicates that 
such potential does exist.

The fact that some HWIs offer scholarships specifically for 
black applicants does not, as the State argues, alter this 
conclusion. The evidence suggests that such scholarships 
represent an extremely limited proportion of available 
scholarship monies, and in most instances fall significantly 
short of the amount of aid offered through generally available 
scholarships. The availability of a small number of minority

50



scholarships at the HWIs does not automatically neutralize the 
ongoing discriminatory effects of current scholarship policies 
rooted in the de jure past.

There is evidence in the record to indicate that the use of 
ACT cutoffs in the award of scholarships can be practicably 
eliminated consistent with sound educational practices, of 
course, as we noted with respect to undergraduate admission 
policies, we do not hold that reliance on ACT scores for 
scholarship purposes be eradicated entirely. We leave to the 
district court on remand factfinding with regard to the 
practicability of reforming current policies consistent with 
sound educational practices.

Plaintiffs also argue that the district court erred in
failing to find that basing eligibility for nonresident fee
waivers (and, in the case of Mississippi University for Women,
certain scholarships for children of resident and nonresident
alumni) on relationship to alumni of Mississippi's HWIs is
traceable to the de -jure system and has present segregative
effects. We agree that this practice, which the district court
found to result in the disproportionate award of such
scholarships to white students, has present segregative effects.
We are not persuaded, however, that traceability has been
established on this record ^ pi a z zr _ trecord. Plaintiffs argument rests upon

Our conclusion connection requirement Mississippi University 
nonresident fee waivers

in this regard applies to the alumni 
in the challenged scholarships offered by for Women as well as that in the

51



the exclusion of blacks from the HWIs during the de jure period. 
This fact, without more, does not establish the traceability of 
the alumni element of the present nonresident fee waivers, m  
effect, plaintiffs seek relief for “present discriminatory 
effects without addressing whether such consequences flow from 
policies rooted in the prior system.” Fordice. 505 U.S. at 730 
n.4. The Supreme Court has rejected this position. id. 
Plaintiffs note in their briefs that this court struck down, as 
unlawfully discriminating against black applicants to Mississippi 
universities, a requirement established by the Board shortly 
after the decision in Brown v. Board of Edim^Hnn 347 U.S. 483 
(1954), that each applicant for admission furnish letters or 
certificates from alumni attesting to the good moral character of 
the applicant. See Meredith v. Fair, 305 F.2d 343, 351 (5th 
Cir.), cert, denied, 371 U.S. 828 (1962). m  our view (assuming 
that plaintiffs intend this as an alternative basis for 
traceability), on this record the alumni certificate requirement 
for admission has no connection, historical or otherwise, with 
the nonresident fee waivers presently awarded to the children of 
nonresident alumni except for the fact that both involve some 
alumni connection.” Any such argument urges us to a level of

generality that is beyond the traceability contemplated by 
Fordice.

d- Conclusions regarding scholarship nm i 
We reverse the district court's finding that the use of ACT 

cutoff scores as a criterion for the award of scholarships at the

52



HWIs is not traceable to the de jure system and does not 
currently foster segregation. We remand for determination of the 
practicability and educational soundness of reforming this aspect 
of the undergraduate scholarship policies at the HWIs and the 
implementation, if necessary, of appropriate remedial relief.

B* Enhancement of Historically Black Institutions
1* Background Farts
Plaintiffs contend that several policies related to funding 

and programs at the HBIs are remnants of the de jure system that 
must be remedied by relief more expansive than that ordered by 
the district court. Plaintiffs' arguments in this regard 
encompass four interrelated areas: new academic programs, land 
grant programs, program duplication, and funding. According to 
plaintiffs, these aspects of higher education affect student 
choice, and existing policies must be remedied in order to enable 
the HBIs to attract students of all races.51

In addition, private plaintiffs appear to advocate 
enhancement of the HBIs in order to rectify the detrimental 
effects of past de jure segregation, without regard to present 
policies and practices. This position is at odds with standards 
established in Fordice. The Supreme Court expressly rejected the 
proposition that the State's duty to dismantle its prior de jure

51

attendinohfh^i™ f iCt C°Urt £°Und that “tbUacks are now attending the HWIs as a group m  statistical parity with their
1486eS ^  ln ^  qualified Pool.” Ayers II. 879 F. Supp. at

53



system requires elimination of all continuing discriminatory 
effects: “To the extent we understand private petitioners to 
urge us to focus on present discriminatory effects without 
addressing whether such consequences flow from policies rooted in
the prior system, we reject this position.” Fordice, 505 u.S. at 
730 n.4. Likewise,

to OTJ f I underftand Private petitioners to press us anrf j a d i n g  of Jackson State, Alcorn State,
oublfifv ^ lppi Yalley state solely so that they may be publicly financed, exclusively black enclaves by Y
nriv?HLC?K:LCe,.We.rejeCt that request. The State
has not met6??./hC1iltleS^f°r a11 its citizens and it StinS 3^ its burden under Brown to take affirmative
S S h t V 1Snantle ltS prior de iure system when it perpetuates a separate, but ‘more equal' one

Id. at 743.

The appropriate inquiry under Fordice. then, is whether
changes in resource allocation are necessary to dismantle fully
present policies and practices rooted in the prior system that
serve to maintain the racial identiflability of the universities
and that can practicably be eliminated without eroding sound
educational policies. See isU Current policies and practices
(as distinguished from lingering disparities in institutional
development per se) implicate the Fourteenth Amendment only
insofar as they are traceable to the prior system and continue to
have segregative effects, either by influencing student choice or 
otherwise.

2• New Academic Programs
a- District court ruling

The programmatic expansions of Jackson State and Alcorn

54



State ordered by the district court respond to its findings 
concerning deliberate efforts by the State of Mississippi to 
restrict the educational opportunities of its black citizens, as 
well as the traceability of current mission assignments to these 
historical antecedents. See Ayers u. 879 F. Supp. at 1437-41, 
1477, 1483-86. As the district court found, after establishment 
of Alcorn State in 1871 and continuing through roughly the first 
half of this century, the prevailing, notion concerning the 
education of blacks was that blacks could benefit only from 
agricultural or mechanical training, rather than a liberal 
education as provided to whites. Id^ at 1437-38. Alcorn State 
was originally designated as an agricultural college for 
Mississippi's black youth, and Jackson State and Mississippi 
Valley State, founded in 1940 and 1950, respectively, were 
established primarily to train black teachers. Avers T. 674 F. 
Supp. at 1527-28. During the years 1945 through 1970, when both 
the HWIs and the HBIs experienced considerable growth in 
enrollment, the bulk of the State's higher education resources, 
particularly programmatic allocations, went to University of 
Mississippi, University of Southern Mississippi, and Mississippi 
State University, the three leading white universities. Ayers 
II, 879 F. Supp. at 1439.

The district court found that the mission designations 
adopted by the Board in 1981 -  and in place throughout both the 
1987 and 1994 trials —  effectively fixed the scope of 
programmatic offerings that were in place at each university

55



during the fle lure period. UL. at 1438-39. The Board designated 
University of Mississippi, University of Southern Mississippi, 
and Mississippi State University “comprehensive” universities, 
thereby indicating that these institutions would continue to 
offer a greater number and a higher level of degree programs than 
all other institutions. Based on its location in the city of 
Jackson, Jackson State was designated an “urban” university with 
the mission of serving the urban community. The Board designated 
Alcorn State, Delta State, Mississippi University for Women, and 
Mississippi Valley state “regional” universities, signifying a
programmatic range limited to undergraduate instruction. id^ at 
1438.

In Fordice, the Supreme Court found that
when combined with the differential admission practices 
and unnecessary program duplication, it is likely that
and tiJd1?^ desig"atlons interfere with student choice d«-h perpetuate the segregated system. On
£***??: H 16 co^rt should inquire whether it would be practicable and consistent with sound educational
o?aS i C?f^°'ellminate any SUCh discriminatory effects of the State s present policy of mission assignments.

505 U.S. at 741. The district court indeed found that
[P]olicies and practices governing the missions of the

institutions of higher learning are traceable to de jure 
segregation and continue to foster separation of the races
A*ers_II, 879 F. Supp. at 1477. The remedial decree, however, 
does not order any alteration of the mission designations. See

56



id̂ . at 1483. No party appeals retention of the mission 
designations per se.

The remedial decree does order some augmentation of the 
programs offered at Jackson State and Alcorn State.53 The 
district court found that the policies and practices of de jure 
segregation impeded the development of both universities, id^ at 
1466, 1484. At Jackson State, the court found that the dearth of 
professional programs hindered potential other-race enrollment at 
he main campus. Id. at 1485. Although the court found that the 

record supported neither the educational soundness of 
transferring programs to Jackson State nor the desegregative 
potential of institutional affiliation with the University of 
Mississippi Medical Center, it found that the addition of other 
unique, high demand programs did have potential to desegregate 
the institution. See id, at 1485-86. The district court 
accordingly ordered implementation at Jackson State of programs 
m  allied health, social work (Ph.D), urban planning 
(Masters/Ph.D), and business (DBA).54 id. at 1 4 9 4 . in
addition, the remedial decree directs the Board to undertake an 
institutional study

State L Tle ®°a5d apP,arently has upgraded the mission of Jackson Statute an enhanced urban designation. Ayers II. 879 F Supp.

fnnH-i™ Jhe rffedial decree orders the State to provide the 
supp It tut. measares °rdered by the decree. Avers II. 879 F.

54
t i, d°ftorai program in business is to be imDlemented
Ayers°ll. lit pr°grams are ^credited."

57



with the express purpose of determining the nature anrt 
direction of those programs slated to be implemented 
s well as further programmatic expansion at JSU to' 

best achieve the urban emphasis of its mission 
Included in this study will be an evaluation of the 
easibility and educational soundness of establishing 

an engineering school, a public law school, and a fi?e-
ITjSU CY Pr°9raffi UndSr the dire^ion And control

EdL. at 1495.

With respect to Alcorn State, the district court found that 
certain proposed programmatic enhancements promised realistically 
to increase other-race presence and were educationally sound. 
Accordingly, the district court ordered implementation of an MBA 
program at Alcorn's Natchez Center, to be funded specially by the 
State along with related capital improvements. The court also 
ordered the State to provide the Small Farm Development Center at 
Alcorn with annual research and extension funds to match similar 
federal funds appropriated to Alcorn, up to an aggregate of $4  

million each year. 55 id. at 1 4 9 5 .
The district court did not order any programmatic 

enhancements at Mississippi Valley State. Although the court 
found that Mississippi Valley State's proximity to Delta State 
tended to perpetuate segregation, 56 it stated that

institutions?^ h * * thG COUrt cannot find that institutional enhancement of MVSU will eliminate the
55

grant function'of A?«rn“s t a ^ T ^ ' ? ? £allS wlthi" the land

“nr S S S S S s a r
58



vestiges of segregation that have contributed to MVSU's
essen^ially a one-race institution. Evidence does not persuade the court that merely adding program! 

and increasing budgets will desegregate a HBI. That is 
not to say, however, that changes made over time at the university consistent with its mission as a 
baccalaureate institution cannot promote diversity at 
the campus. The court cannot find that institutional 
or programmatic enhancement of MVSU is justified as
thi!ari!!?d!Y S°Und f°r dese9re9ati°n purposes based on

Id. at 1491. The court also found, however, that while
tn evide?ce to suggest that transferring programs“ay.;ot be educationally sound, there is
over^ti!eSVi?!nCe thal measures can be taken which,one of th4 tilt*-a potenblal of desegregating MVSU. As one of the State s own witnesses testified, evidence
Itltls HBIS in °ther formally -de jure segregatedstates have been successful in integrating their
measures trough a variety of approaches and

The sole portion of the remedial decree that pertains 
specifically to Mississippi Valley state is the following section 
concerning the proposed merger with Delta State:

ff' after further study of any available 
thatablonally sound alternatives, the Board determines 
a H ^ def grfgatlon ln the Mississippi Delta can be attained only through its DSU/MVSU consolidation
p!!!!!?lyai! S a 1 aband°nin<3 the financial investment presently in place at the [MVSU] campus and
constructing replacement facilities at the [DSU] camouspresent a practical course of action, it shall ^
J o that conclusion no later than July 1, 1996 to the Monitoring Committee.

Id. at 1495.
Finally, the district court determined that practices 

concerning accreditation of academic programs at the HBIs did not

59



warrant remedial relief.57 none ofThe court found that while 
the HBIs was accredited as of 1961, each has now attained 
accreditation and “(sjince 1980, with the possible exception of 
JSU, the overall percentage of programs accredited at all 
universities has increased substantially.” at 1 4 4 1 . The
court found that the State's “inattentiveness” to the HBIs during 
the de jure period with regard to program and institutional 
accreditation negatively affected institutional prestige, but 
that “there is no evidence that the State's previous failings in 
this regard persist into the present day.” Id^ at 1445. The 
court stated that little evidence had been presented on the 
present status of the accreditation issue. id. 

k* Arguments on appeal
Plaintiffs argue that the district court erred as a matter 

of law by failing to order any new programs at Mississippi Valley 
State and only two new programs at Alcorn State. While 
plaintiffs do not challenge the district court's rejection of the 
Board's proposal to merge Mississippi Valley state and Delta 
State, they contend that the record does not support the court's 
conclusion that programmatic enhancement of Mississippi Valley 
State will not help to desegregate the Delta. Plaintiffs argue 
with respect to Alcorn state that further relief is warranted 
given the Natchez location of the MBA program, which plaintiffs

57

“rtlhe practice ffS *nd the United States challenged
the provisionn of require?acult“ l)'“t T I Z t t T  (1"ClUdin9

Pr09ra"£ “  — •” ^ S ^ .  379 K. supp.

60



contend will not help to desegregate the main campus,58 and the
State's prior commitment to funding the Small Farm Development 
Center. The United States specifically asks this court to remand 
with instructions to order the Board to study and report to the
Monitoring Committee on actions that could be taken to enable 
Mississippi Valley state and Alcorn State to attract students of 
all races, including improvement of existing programs and the 
addition of unique, high demand programs.59 Plaintiffs do not
appeal the district court's order as it pertains to programmatic 
enhancement of Jackson State.60

Private plaintiffs also argue that the district court 
clearly erred in finding that problems with accreditation of 
programs at the HBIs do not persist to the present.

Defendants contend that the traceability of mission 
assignments does not warrant institutional enhancement of the 
HBIs beyond that ordered by the district court, and that the
record does not support general enhancement of these institutions 
as a desegregation tool.

c. Analvs is

58•pr Thei Natchez Center is located approximately 40 milesAlcorn s main campus. Ayers I. 674 F. Supp. at 1542.
59

court
among other things, "improve the quality o A x L S n g  pjogr^s." u.s. Br. at 44. Except for specific issues (such as for
addresi4dPe S e r r i f t W s 1op1n"on£aS lty Sala"ies> '«»t we have 
quality is not briefed and wePt h e r e f o « d T S ^ i d t o M  £ . pro«r“

programs ̂ n  particular ̂ re^di'sciTs^ed " p a r t ^ I I . ̂ "^r^a.
61



The issue of programmatic enhancement directly implicates
policies governing institutional missions, which the district
court found to be traceable to the de jure system and to have
current segregative effects. Fordice mandates that the state
eliminate such vestiges of the prior system to the extent
practicable and consistent with sound educational practices.
This is a substantial burden; accordingly, to the extent that the
record indicates that the State could practicably take steps to
desegregate that do not run afoul of sound educational practices,
the State has a duty to do so and the remedial decree should so 
reflect.

Our review of the record leads us to conclude that the
district court's finding that "merely adding programs and 
increasing budgets is not likely to desegregate an HBI, Avers 
II, 879 F. Supp. at 1491, is supported by the evidence and is not 
clearly erroneous. There was testimony that the Louisiana 
experience with implementation of a consent decree to desegregate 
public institutions of higher education was not successful in 
attracting white students to historically black universities, 
despite investment of over 575 million in new academic programs 
at those universities. The evidence showed that there was no 
correlation between dollars expended on new program 
implementation and white enrollment in those programs. During 
the six years (1981-87, that the Louisiana consent decree was in 
effect, white enrollment in predominantly black universities 
increased by just 1.1%, while black enrollment in predominantly

62



47% of black enrollmentwhite universities decreased from 56% to 
in the system as a whole.61

The district court’s findings do indicate, however, that 
steps can be taken that might serve to desegregate Mississippi 
Valley State, although determining what those steps might be 
requires further study. In its discussion of Mississippi Valley 
State in the context of the proposed merger with Delta State, the 
court stated that “evidence suggests that HBIs in other formally 
"  iure segregated states have been successful in integrating 
their student bodies through a variety of approaches and 
measures.” Id^ Indeed, evidence presented by the United States 
and defendants indicates that well-planned programs that respond 
to the particular needs and interests of local populations can 
help to desegregate historically black institutions. Witnesses 
for both parties testified that programs not duplicated at 
proximate institutions, targeted to local demands, and in many 
cases offered through alternative delivery systems (such as off- 
campus, evening, or weekend programs) have had success in

n  T —hited States v, Louisiana. 692 F. Supp. 642 645
<f*E* L** ^88) (“Despite the slight increase in black enrollment statewide, the racial polarization has increased as a whole

bhe teF“ of the c°nsent decree: the predominantly white 
1981 W h n ? \ £  ab°“t 2000 fewer black students in 1987 than in

Predomlna«ly black institutions showed only a negligible increase in white enrollment from around 0.3% in 1981
tha? 1987:">' Acc°rdi"9 to the three-juige cSu«
case “Ti?h d the speCial faster s final report in the Louisiana case, [t]he experience of the consent decree confirms that
enhancement of [predominantly black institutions] wi?hou£ more
to blark ?SHCP?ed0minantly black institutions] more attractive ,k. students, without attracting white students.” United ££?tes v. Louisiana, 718 F. Supp. 499, 508 (E.D. La. 1989)

63



attracting white students to historically black institutions in 
other states.

Consistent with its findings regarding the potential to 
desegregate Mississippi Valley State, the district court stated 
in its opinion that it “will direct the Board to explore these 
areas more thoroughly to determine what measures have had success 
m  other systems of higher education, if any, which also have a 
reasonable chance of success in desegregating MVSU.” id. at 
1492. This directive, however, was not incorporated into the 
remedial decree. This may be explained by the fact that the 
future of Mississippi Valley state was uncertain at the time the 
district court drafted its opinion. Under the remedial decree, 
merger with DSU remained a possibility that depended upon the 
Board’s study of options for desegregating the Delta region. We 
cannot conclude that the district court abused its discretion in 
failing to order the above relief when the very existence of 
Mississippi Valley state as an independent institution remained 
m  9uestion- At present, however, all parties apparently have 
concluded that merger of Mississippi Valley State with Delta 
State is neither required nor desired.62 On remand, the 
district court must clarify the status of the merger proposal.
If the district court confirms that merger will no longer be

2‘; r. isr^
oppos^n'to^erler351^  State their

64



pursued, then the district court must address the continuing 
segregative effects of Mississippi Valley State's limited mission 
and incorporate into its remedial decree a provision reguiring 
the Board, on a continuing basis, to study and report to the 
Monitoring Committee on new academic programs that have a 
reasonable chance of increasing other-race presence at 
Mississippi Valley State.

Plaintiffs' contention that the district court was required 
to order further relief at Alcorn State is less persuasive, at 
least as it addresses the short term. We are not persuaded that 
further relief is warranted on the basis of the MBA program's 
location away from the main campus at Natchez; plaintiffs' own 
expert testified that off-campus offerings are among those 
initiatives that have been successful at attracting other-race 
students to historically black institutions. Nor are we 
persuaded that the State's prior commitment to funding the Small 
Farm Development Center necessitates the order of additional 
relief; this fact does not implicate the Fordice standard for 
remedial relief. The record does suggest, however, that measures 
that have been successful in desegregating historically black 
institutions in other states may have potential over the longer 
term to be effective also at Alcorn State. We see no reason, in 
light of the traceability of the HBIs' limited missions and of 
their continuing racial identiflability, to limit continuing 
study of new academic programs with desegregative potential to 
Jackson State. The district court should have incorporated such

65



relief with respect to Alcorn State into the remedial decree.
We recognize that substantial evidence indicates that 

efforts to desegregate an HBI can succeed only insofar as they 
tap into locale-specific demands. Any such inherent limitation 
on the potential to achieve desegregation in the university 
context may underlie some of the district court's findings and 
suggests that implementation of unique, high demand programs that 
can reasonably be expected to attract white students to HBIs may 
ultimately turn out to be quite modest.

Private plaintiffs argument that the district court clearly 
erred in finding no present neglect by the State with respect to 
accreditation of programs at the HBIs is unavailing. The 
district court’s finding of substantial increases in the 
percentage of programs accredited at all universities is 
supported by the record, and private plaintiffs do not identify 
any present policy that currently hinders accreditation of 
programs at the HBIs.

Private plaintiffs accreditation concerns are relevant, 
however, to one aspect of the district court's remedial decree.
The doctoral program in business that the court ordered at
Jackson State is not to be implemented until existing business 
programs are accredited, and the record indicates that despite 
the Board's goal of achieving accreditation for these programs, 
set forth as early as 1974 in the Board's plan of compliance with 
Title VI, it has not yet been accomplished. The record is not 
clear as to the reasons that these programs are not yet

66



accredited. In the interest of ensuring that the district 
court's order concerning the doctoral program in business be 
given meaningful effect, the district court on remand should 
inquire into present efforts to achieve accreditation of Jackson 
State's business programs and order any relief that is 
appropriate with respect to the Board.

d* Conclusions regarding new academic programs 
We affirm the portions of the remedial decree addressing the 

addition of new academic programs at Jackson State and Alcorn 
State. We direct the district court on remand to clarify the 
status of the Board's proposal to merge Mississippi Valley State 
with Delta State. if the district court confirms that merger 
will no longer be pursued, it should incorporate into the 
remedial decree a provision directing the Board to study and to 
report to the Monitoring Committee on whether there are any new 
academic programs, including programs which have had success in 
desegregating other systems of higher education, that may have a 
reasonable chance of success in desegregating Mississippi Valley 
State. We further remand for incorporation into the remedial 
decree of a similar provision directed to Alcorn State covering 
new academic and land grant programs. On the issue of 
accreditation, the district court should determine the status of 
current efforts to achieve accreditation of existing business 
programs at Jackson State and order appropriate relief, if 
necessary, to ensure that the Board is taking steps commensurate 
with its role in this accreditation process.

67



Land Grant Programs
a* Eigtrict court ruling

Mississippi State University and Alcorn State University are 
Mississippi's two public land grant institutions.63 As found by 
the district court, the traditional elements of the land grant 
function consist of residential instruction, agricultural 
research (including an experiment station), and an extension 
service.64 Ayers JI, 879 F. Supp. at 1464. The district court 
found that during the de jure period the State consistently 
directed federal and state land grant funds toward Mississippi 
State University rather than Alcorn State. Id^ at 1464-65. 
Specifically, Mississippi directed all federal funding for 
agricultural research under the Hatch Act, 7 U.S.C. §§ 361a-361i, 
and all federal funding for extension services to farmers under

• . ^ lQnd grant institution is defined as a cnlipno
fro^th^f HSiCi] entitled to financial and programmatic Support from the federal government pursuant to a series of statutes
189?!” A v e r s ^  6 7 4 S" * 1 1 1 Acts enacted by Congress in 1862 and . , —^ ' 674 F. Supp. at 1543. The Morrill Act of inc?
instituti?rtLrj£Uteri “defined the land ^ant college to be an institution that provides instruction in agriculture and
mechanical arts, research in agriculture through the experimental stations and extension of knowledge to farmer? throuahP mental cooperative extension programs." id trough

Cooperative extension is a joint effort government, land grant institutions, and county 
transfer knowledge to farmers and assist in the 
farm operations. Ayers I, 674 F. Supp. at 1545
«  i ^ 1?io°ri4 nated uith the Sndth-Lever Act of SS 341-349, and is jointly financed by federal governments. id.

of the federal 
governments to 
development of 
Cooperative 1914, 7 U.S.C. 

state and county

68



the Smith-Lever Act, 7 U.S.c. SS 341-349, to Mississippi 
State,65 while Alcorn State received federal funding only under 
an 1890 federal statute providing funds for black land grant 
colleges. 14,. at 1464. As a result, Mississippi State enjoys 
land grant activities of much greater size and breadth than 
Alcorn State. IsL. at 1466. The district court found that 
“[operation and maintenance of two racially identifiable land 
grant programs are traceable to dg_jure segregation and have
segregative effects.” id. at 1 4 7 7 .

The court made findings with respect to each of the 
traditional land grant functions. The court found that the 
quality of residential instruction is directly and positively 
affected by agricultural research conducted on the campus of a 
land grant institution, which is more extensive at Mississippi 
State than at Alcorn State due to Mississippi State's broader
research mission. Id^ at 1464, 1466. Turning to agricultural 
research, the court found:

. Wlth llttle or no exception, federal Hatch Act doilars are administered in every state by a sinale 
institution. In this time of feier and fewer pe?sSns entering the field of agriculture, but the system 
iTwouldless effectiuely feeding more and more people
insoSnd to J  ?1£nt and' thUS' educationally unsound to administer two separate agricultural
research programs in the state. To diffuse the nroaram 
would create two separate administrative entities 9 
difficulties m  communication among the particinat i nrr scientists, and inefficient duplication. P 9

were - = ^ g  “ t a t ^ ^ s  ̂
Smith-Leve^federal Appropriations. alDn^ the Hatch and

69



I&,- at 1465.

Similarly, the court found that it would be unsound to 
administer federal funds for cooperative extension work through 
two independent cooperative extension programs:

- The ge”eiral rule of Practice is that Smith-Lever funds are administered by only one university in each 
• • • • To duplicate administrative processes and procedures as it relates to the delivery of extension 

programming is unsound because the short duration of 
extension educational programs makes program coordination difficult from year to year.

Id̂ _ at 1465-66.
Although the court found that “the operation of two racially 

identifiable land grant institutions might continue to have some 
segregative effects that would be minuscule because of the small 
number of students now majoring in agriculture,” id^ at 1484, it 
concluded that “[t]he current allocation of agricultural 
education programs is educationally sound and there exists no 
practical alternative to the current method of providing research 
and extension services.” Id^ at 1466. with the exception of a 
special funding allocation for the Small Farm Development Center 
at Alcorn State, the remedial decree did not mandate any changes 
in current land grant policies or practices. See id^ at 1494-96.

Arguments on appeal
The United States argues that “the court erred as a matter 

of law when it failed to evaluate alternative proposals for 
changes in the allocation of land grant programs short of 
dividing the land grant programs equally between the 2 
institutions.” U.S. Br. at 47. The United States further

70



contends that to the extent the district court's conclusion that 
there are no practical alternatives to the current method of 
providing research and extension services “is a finding that 
there are no educationally sound alternatives to the present 
allocation of programs, that finding is clearly erroneous.” id. 
Private plaintiffs advance similar arguments. Both the United 
States and private plaintiffs cite evidence that there are unmet 
needs in Mississippi for new land grant programs, such as water 
quality, that could be met at Alcorn State.

Defendants argue that the district court correctly found 
that any segregative effects associated with the operation of two 
racially identifiable land grant institutions could not be 
remedied consistent with sound educational practices. Defendants 
further contend that the addition of agricultural programs at 
Alcorn State will not contribute to desegregation, 

c• Analvs is
The district court's finding that it would be impractical 

and educationally unsound to alter the current method of 
providing research and extension services is well supported by 
expert testimony in the record. As the district court found, the 
primary source of federal funds for agricultural research is the 
Hatch Act, and for cooperative extension funds the Smith-Lever 
Act. Ayers II, 879 F. Supp. at 1464. Substantial evidence 
indicates that federal (and matching state) funds appropriated 
through these acts typically are administered by a single 
institution in each state and that it would be unsound to

71



administer in Mississippi either two separate research programs
with Hatch funds or two separate extension programs with Smith- 
Lever funds.

Contrary to the suggestion of plaintiffs, the district court 
opinion does not limit its consideration of changes in the 
allocation of research and extension funds to “equally” dividing 
such funds between Mississippi state and Alcorn State, while the 
court recognized that it would be inappropriate to break up the 
academic and research facilities at Mississippi State and Alcorn 
State and divide them “equally” between educational institutions 
solely on the basis of Alcorn State's heretofore restricted 
development, see id^ at 1466, this statement reflects a legal 
standard rather than a finding drawn from the evidence on 
practicability or educational soundness. The evidence led the 
district court to conclude more generally that “[t]he current 
allocation of agricultural education programs is educationally 
sound and there exists no practical alternative to the current 
method of providing research and extension services.” id.66 
Plaintiffs' argument that the district court should have 
considered alternatives other than an “equal” division of land 
grant programs accordingly is without merit.

We read the district court’s conclusion that it would be 
impractical and educationally unsound to change the current

06 The district court similarly stated fhaf “r+-iK . .
wlthindt h f e%t0"ard the in c lu s io n  ythat d L drng the roles “

72



practice of administering research and extension services 
primarily through Mississippi State to be limited to research and 
extension services funded through the Hatch and Smith-Lever Acts, 
as those statutes are now configured. Significantly, we do not 
read the district court opinion to preclude future implementation 
of land grant programs at Alcorn State. Instead, the district 
court's implicit decision not to order implementation at this 
time at Alcorn State of a program in water guality or any other 
land grant program offered by plaintiffs reflects the lack of 
sufficient definition of any of these programs in this record.
The addition to the remedial decree, see Part III.B.2.d supra, of 
a provision directing the Board, on a continuing basis, to study 
and to report to the Monitoring Committee on programs that have a 
reasonable chance of increasing other-race presence at Alcorn 
State encompasses land grant programs as well as new academic
programs and permits further study of the programs proposed by 
plaintiffs.

d* Conclusions regarding land grant Droaraffic
We affirm the district court's ruling as it concerns land 

grant functions at Mississippi State and Alcorn State.
4• Duplication of Programs 

a. Fordice
Program duplication was one of the four remnants of the de 

lure system identified by the Supreme Court in Fordice. 5 0 5 u.S. 
at 738. Following the 1987 trial, the district court found 
significant duplication of programs at the HBIs by the HWIs

73



asarsj, 674 F. supp. at 1541, but concluded that "there is no 
proof” that such duplication “is directly associated with the 
racial identiflability of institutions," and that “there is no 
proof that the elimination of unnecessary program duplication 
would be justifiable from an educational standpoint or that its 
elimination would have a substantial effect on student choice.” 
Id^ at 1561. The Supreme Court stated that “[i]t can hardly be 
denied that such duplication was part and parcel of the prior 
dual system of higher education —  the whole notion of ' separate 
but equal' required duplicative programs in two sets of schools - 
and that the present unnecessary duplication is a continuation 

of that practice.” Fqrdice, 505 U.S. at 738. The Court 
emphasized that the State bears the burden of proving that 
present-day program duplication is not constitutionally defective 
and held that the district court had improperly shifted the 
burden to plaintiffs. id. The Court indicated that, on remand, 
the district court should “consider the combined effects of 
unnecessary program duplication with other policies, such as 
differential admissions standards, in evaluating whether the
State had met its duty to dismantle its prior de jure segregated 
system.” id, at 739.

b* District court ruling
The alleged remnant presented by plaintiffs to the district 

court on remand was “(t]he policy and practice of unnecessarily 
duplicating HBIs' programs and course offerings at HWIs.” Avers 
U ,  879 F. supp. at 1498, 15 0 2. The district court defined

74



or more“unnecessary duplication" as “• those instances where two 
institutions offer the sane nonessential or nonoore program.'” 
ISL, at 1441  (quoting fly e r s  I , 674 F .  Supp. at 1 5 4 0 ) .  “• under
this definition, all duplication at the bachelors level of 
nonbasic liberal arts and sciences course work and all
duplication at the masters level and above are considered to be 
unnecessary.'” id.

The district court found that 40% of the noncore bachelors 
programs offered at one or more of the three HBIs are 
unnecessarily duplicated at one or more of the five HWIs; 83% of 
the masters programs offered at one or more of the HBIs are 
unnecessarily duplicated at one or more of the five HWIs; 60% of 
the specialist programs offered at one or more of the HBIs are 
unnecessarily duplicated at one or more of the five HWIs; and 25% 
of the doctoral programs offered at one or more of the HBIs are 
unnecessarily duplicated at one or more of the five HWIs. Id^ at 
1443. As a group, the HWIs have significantly more high demand, 
noncore programs that are not duplicated anywhere else in the 
system as compared with the HBIs as a group. id, at 1442.

Analyzing program duplication in general, the district court 
found that the joint operation of duplicative offerings between 
racially identifiable institutions and differential admissions 
standards “raises a serious inference that this duplication 
continues to promote segregation.” Id, at 1445. The court drew 
a distinction, however, between proximate and nonproximate 
institutions in making more specific findings on the question of

75



segregative effect. The court concluded that only program 
duplication between proximate, racially identifiable institutions 
was traceable to de jure segregation and had segregative effects. 
IsL. at 1477, I486.

The court addressed two instances of program duplication 
between proximate, racially identifiable institutions. First, 
m  its remedial decree, the district court ordered the Board to 
“take whatever remaining steps are necessary, if any, to vest 
complete institutional control in JSU over the facility formerly 
known as the Universities Center in JSU.” id^ at 1 4 9 5 . The 
Universities Center, located in Jackson, consisted of extension 
programs operated by various HWIs. Avers I. 674 F. Supp. at 
1542. In 1972 the Board voted to assign management 
responsibilities for the Universities Center to Mississippi 
State, the University of Mississippi and Jackson State. id^ At 
the trials in 1987 and 1994, Plaintiffs identified continued 
operation of these extension programs in close proximity with 
Jackson State as a vestige of the de jure system. The district 
court’s order eliminates whatever competition for enrollment the 
Universities Center fostered with respect to Jackson State.

Second, the court considered program duplication between 
Mississippi Valley state and Delta State, which are proximate,
racially identifiable institutions in the Delta. The district 
court found that

E*™CaUSe °f,the Proximity of these institutions (approximately 35 miles apart) and the similar scope of 
their missions, (liberal arts undergraduate P
institutions) [sic] location, costs and program

76



offerings would not appear to have a significant 
on student choice. Rather, lower admissions standarric 

MVSU appear more likely to attract black students of 
the Delta region, since as a class black students score 
lower on the standardized tests used for admission to 
universities. In light of differing admissions 
standards, it is clear that program duplication between these two universities does foster segregation.

Ayers II, 879 F. Supp. at 1486. The district court noted that
merger of Mississippi Valley State and Delta State would
eliminate segregative duplication, id. at i486, 1489, but
rejected the Board's merger proposal for a number of other
reasons. See id_̂  at 14 91-92. in so doing, the court indicated
that measures “less drastic” than merger should be considered.
—  at 1492• In its conclusions of law, the district court
stated that “the Board must study program duplication between DSU
and MVSU to determine whether any segregative duplication may be
eliminated consistent with sound educational practices.” id^ at
1494. Neither this directive nor any other remedy pertaining to
decreasing program duplication with respect to Mississippi Valley
State, however, was incorporated into the remedial decree.

Turning to program duplication between nonproximate 
institutions, the district court found that “it has not been 
established that program duplication between non-proximate 
racially identifiable universities significantly fosters 
segregation.” Id^ at i486. The court found that factors 
affecting student choice included location, academic reputation, 
and prestige, none of which is implicated by program duplication. 
IcU Noting that admissions standards help to shape public 
perceptions of an institution, the court found that “[t]he

77



consistently lower admissions standards in effect at the HBIs 
have perpetuated the perception that these institutions are 
inferior. Accordingly, the likelihood of significant 
desegregation of HBIs is small and confined to those students who 
are academically underprepared.” Id,. The court concluded that 
absent differences in “prestige or public image,” unnecessary 
duplication “has little to do with student choice.” id^ Program 
duplication is most likely to influence students who are not
place-bound and who have the greatest flexibility in choosing an 
institution, id.67

The court concluded that [s]ystem-wide admissions 
standards, coupled with the financial and programmatic 
enhancements of JSU and ASU, realistically promise to obviate or 
lessen whatever segregative effects are potentially harbored by 
the duplication between racially identifiable non-proximate 
institutions.” Id^ In addition, the court found that the 
Board's existing process for reviewing programs is an 
educationally sound method of managing duplication in the system. 
—  Under this P^ess, Board staff consults with university 
officials whenever a program's enrollment or graduation rates 
drop below a certain level predetermined by the Board. The 
university is then given an opportunity to justify continuation

Alcorn state’ the district court found that operation of 
raciallv ifS1Sfippi State' which are nonproximate,
to haJ^soBe s e ^ a l i v e ^ f f I c « \ h a f w o u  w T ' ■ ’ C°ntinUeof the small e^recrs that would be minuscule because

n°“ ma5°rin9 in »9riculture."

78



of the program despite its deficiencies, id^ at 1 4 4 3 .
Although the court indicated that uniform admissions, 

programmatic enhancements, and the Board's program review 
procedures would adeguately mitigate any potential segregative 
effects of program duplication between nonproximate institutions, 
it ordered the Board to study program duplication with respect to
Jackson State. The Board is to undertake this as part of a 
general study:

f* The Board shall undertake an on-site
StUdy °f JSU to determine the relative 

l i l t weaknesses of its existing programs as . -i ■ Practicable. . . . The nature and extent of
bePiddJtl0nHW^th °ther institutions in the system will be addressed in this study in the context of
determining whether meaningful programmatic uniqueness
“ y g\lnff which would bring about signifiSan^ wh^e enrollment through elimination and/or transfer of 
existing programs at other institutions and the
and/or^transfer?ati°na* SOUndness °f suc»> elimination 

Id. at 1494-95.
c• Arguments on appeal

The United States argues that the district court erred in 
failing to order the Board “to undertake a system-wide effort to 
reduce program duplication and to increase the numbers of unigue 
high demand offerings at the [HBIs].” u.S. Br. at 47-48. The 
United States's argument on this issue continues, in its 
entirety, as follows:

The court's finding that duplication between
lnstitutions does not cause segregation contains no citations or references to record evidence 

and appears to be based upon its findings that other '
rath^rSrhSUCh 9S locatlon' affect student choice, any evidence that duplication does not ffect choice. Again, the court impermissibly placed

79



the burden of proof on the plaintiffs rsthor
the defendants. And its finding that'the Boardr!" °n
eliminat pr°gram review Process is adequate to eliminate any segregative effect of duplication is
h eaJ;ly erroneous, since that process is not triggered 
desegregation?06 °f dUPlicatio" «  the need to p S £ 5

Bt 48 <citati°ns omitted). Private plaintiffs do not raise 
the issue of program duplication on appeal, 

d. Analysis
No party contests the district court's finding that program 

duplication between proximate racially identifiable institutions 
is traceable to de lure segregation and continues to have 
segregative effects. We therefore accept this finding as 
supported by the record and conclude that the United states's 
argument as it applies to Mississippi Valley state is well taken. 
The district court itself stated that it would order a study of 
program duplication between Mississippi Valley state and Delta 
State, see Ayers II, 879 F. Supp. at 1494, yet failed to 
incorporate any such provision into the remedial decree. Again, 
the omission may have been occasioned by the continuing 
possibility that Mississippi Valley state would be merged with 
Delta state. See Part III.B.2.C supra. We cannot conclude that 
the district court abused its discretion in failing to order a 
study of program duplication at Mississippi Valley state when the 
continued existence of Mississippi Valley state remained in 
question. However, upon conclusion of the inquiry we have 
ordered above, if the district court confirms that merger will no 
longer be pursued, then the district court must incorporate into

80



its remedial decree a provision requiring the Board to study and
report to the Monitoring Committee on unnecessary program
duplication between Mississippi Valley State and Delta State.68
The United States1s argument as it applies to nonproximate
institutions, on the other hand, is not briefed sufficiently for
this court to review this aspect of the district court's ruling
for error, Cf̂ . Cjnel v. Connick, 15 F.3d 1338, 1345 (5th Cir.),
cert, denied, 513 U.S. 868 (1994)(“A party who inadequately
briefs an issue is considered to have abandoned the claim.”). it
is of no consequence that the district court did not cite to the
record in the portion of its opinion addressing the potential
segregative effects of program duplication in nonproximate
institutions. While citations to the record are helpful, and we
commend the district court for its abundant documentation of the
record throughout its opinion as a whole, the district court is
not required to provide them. Significantly, the United States
does not contend that the court's finding of no segregative
effect in the context of nonproximate institutions is clearly 
erroneous.

The United States argues, rather, that the court 
impermissibly shifted the burden of proof on this issue to the

Part tttAr *e, noted in our discussion of new academic programs
s t a t e s ^ n ^ a f S l f h
c o a m i t ^ r o n ^ t ^ n s ^ h a t  m o r f a t t ° n it 0 r in 9white students In lirrht- ■ HBIs more attractive to
the remedial decree, where we have^d^ed^elie? °£enhancement area, we have done so in those tJrml

81



plaintiffs. While the court's language Bight suggest imposition 
Of the burden of proof on plaintiffs (“it has not been 
established that program duplication between non-proximate 
racially identifiable universities significantly fosters 
segregation”), its reasoning indicates reliance not on the 
absence of evidence of segregative effect, but rather on the 
presence of evidence that factors other than duplicative program 
offerings have a more significant effect on student choice. We
are not persuaded that the court erred in its allocation of the 
burden of proof.

The United States's argument that the district court's 
finding “that the Board's existing program review process is 
adequate to eliminate any segregative effect of duplication is 
clearly erroneous” mischaracterizes the district court's finding. 
The court found that “the Board's program review process is an 
educationally sound way of managing duplication in the system.” 
i^rs_ll, 879 F. supp. at 1486. This finding is supported in the 
record and makes no pretense of disposing of the issue of 
potential segregative effects. The court went on to conclude 
that “[s]ystem-wide admissions standards, coupled with the 
financial and programmatic enhancements of JSU and ASU, 
realistically promise to obviate or lessen whatever segregative 
effects are potentially harbored by the duplication between 
racially identifiable non-proximate institutions.” id^ We note 
that even in light of this conclusion, the district court did 
order a study of program duplication at Jackson State to

82



determine if elimination or transfer of programs at other
institutions might help attract white students to Jackson State. 
Idj. at 1495.

e‘ Conclusions regarding program duplication 
We affirm the district court's findings and conclusions on 

the issue of program duplication. if, on remand, the district 
court confirms that the merger of Mississippi Valley State and 
Delta State will no longer be pursued, the district court should 
incorporate into its remedial decree a provision requiring the 
Board to study and to report to the Monitoring Committee on
unnecessary program duplication between Mississippi Valley State 
and Delta State.

5. Funding
a - District court ruling

Mississippi's eight universities receive state funding 
through both an annual legislative general support appropriation 
and line item appropriations. The universities also rely on 
self-generated funds, which include private contributions as well 
as federal grants and loans. See ^  at 1446-53; Avers t 674 F . 
Supp. at 1546-48. In its overall findings of liability, the 
district court concluded that "[funding policies and practices 
follow the mission assignments and, to that degree only, are 
traceable to prior fle_iure segregation." Avers IT. 879 F. Supp. 
at 1477. We discuss each source of state funding and the 
relevant findings of the district court in turn.

The Board is responsible for allocating the legislative

83



general support appropriation among the universities. Beginning 
in 1974, the Board utilized a funding formula that allocated this 
funding to the universities in accordance with their mission 
designations. In November of 1987, following the first trial, 
the Board adopted a new funding formula under which level of 
funding is determined by the size of a university's enrollment, 
faculty, and physical plant. Id, at 1449 & n.122. The 1987 
funding formula consists of eight components: instruction, 
research, public service, academic support, student services, 
institutional support, operation and maintenance, and 
scholarships and fellowships. id, at 1447. By far the largest 
of these components is instruction, which accounted for more than 
58% of the total budget in fiscal year 1994-95. Id, The general 
support appropriation does not include funds for capital 
improvements. id.

The district court found that
because the size of the university's enrollment 
determines the level of funding, the larger 
institutions with the highest percentage of upper level 
programs obtain the greatest amount of funding This causes practically the same result as under ?h4
designation™13 ^  fUnded by institutional mission

Id, at 1449. Stated differently, the court found that “the
historical disparity in funding between the HWIs and HBIs once
practiced by law persists through perpetuation of the status quo
as it existed then.” Id, at 1452-53. The court concluded, 
however, that

84



policy or practice traceable to the de iurp 
Attainment of funding “equity” betweenthe-HBIs * and 

1S lmPractical and educationally unsound it 
neither be attained within our lifetime nor h '
it realistically promise to guarantee further * * S 
desegregation given the present institutional 
landscape. The testimony showed that the formula 

g®?red to fundin<? the students without
t°n °f race at whichever institution the students choose to attend and at the program level the

?und?na%f°°r- . the coSrtfinds ttat thefunding formula should not be altered.
ZfiL at 1453.

Line item appropriations fund specific activities and 
programs offered at the public universities. Capital 
improvements and repair and renovation of existing facilities are 
funded through a combination of line item appropriations and 
self-generated funds. The district court found that line item 
funding accounts for a “substantial” share of total state 
appropriations for institutions of higher education and 
contributes “significantly” to the quality of any given 
institution. Id. at 1 4 5 1 .

The district court found that, in general, line item funding 
“disproportionately flows to the HWIs.” Id, In the context of 
capital improvements and repair and renovation, however, the 
court concluded that funding policies and practices do not follow 
the mission assignments and are not traceable to de jure 
segregation. Id, at 1477. Although the state provided new 
construction funds disproportionately to the HWIs during the late 
1960s, figures from 1970 through 1994 indicate that the HBIs 
received a percentage of capital improvements funds that exceeded

85



their percentage of systemwide enrollment, at 1454 69
The district court made distinct findings with respect to 

library allocations and equipment availability. The court found 
that the library collections of the HWIs have been consistently 
superior to those of the HBIs for the past 40 years, and that the 
physical space of the HBIs' libraries is "of a lesser quality 
overall" than that of the HWIs' libraries. Id, at 1456-57. The 
court likewise found that investment in equipment at the HWIs 
exceeded that provided to the HBIs during the de jure era and 
that, currently, the quality of fixed equipment at the HBIs is 
inferior to that at the HWIs. Id, at 1457. The court concluded
that (p)olicies and practices governing equipment availability 
and library allocations follow the mission assignments and, to 
that degree, are traceable to de jure segregation.” U K  at 1477.

As to the present segregative effects of library and 
equipment funding policies, the district court found generally 
that “ [tjhe nature and condition of facilities of a campus are 
factors that influence student choice in deciding where to attend

69
s  or f

appropriations for "eu construction F ^ o m ^ f ?  u n m
32% of total funding9available ^ stenlwl^e enrollment yet obtained& 879 - supp.da?\:5^i^ £££i.isrjrss: ra,.

86



college.- at 1457. With respect to equipment in particular,
the court found that “[t]he quality and type of equipment 
available on a campus is important from the student's standpoint 
in terms of adequately preparing the student to enter the job 
market.” Id*. As to libraries, the court recognized that, as 
part of an institution's image, the library “plays a part in the 
recruitment of students and faculty,” id. at 1456, but also found 
that “the number of books in the library is [not] a significant 
feature of a university that influences student choice of where 
to attend.” Id. at 1457. in light of these findings, the court 
ultimately concluded that “increasing the size of the HBIs' 
libraries beyond that consistent with their missions is not 
educationally sound.” Id. at 1458. The court found it
significant that the libraries at Alcorn State and Jackson State 
are presently undergoing expansion. id.70

The remedial decree orders the state to provide special 
funds to both Jackson State and Alcorn state in addition to the 
funds necessary for the programmatic additions outlined 
earlier.'1 At Jackson state, the state is to provide, per Board 
proposal over a five-year period, up to $15 million earmarked for

approved'TsiTmil the State Miniature had recently
a S . . d ^ 2 ^ a ? 1ii district "court'
$3PmilliS °h the Xl^rarY at Alcorn State was also undeSrway^with at 1 4 5 7 having already been invested. Ayers II. 879 F^Supp.

71
StatP def:re® c°ntams a general provision that orders the
11, 679 FP lupp6 atn?«I.f°r 311 "easures °tdered therein, ayers

87



property acquisition, campus entrances, campus security, and 
grounds enhancement. For the benefit of Jackson state and Alcorn 
State, respectively, the State is to establish two $5 million 
endowment trusts, “with the income therefrom to be used to 
provide funds for continuing educational enhancement and racial 
diversity, including recruitment of white students and 
scholarships for white applicants in a number and an amount
determined by the court upon recommendation from the Monitoring 
Committee.” id. at 1 4 9 5 .72

k* Arguments on appeal
Plaintiffs argue that the district court misapplied Fordire 

in concluding that “[t]here is no per se funding policy or 
practice traceable to the dejure era.” Plaintiffs contend that 
disparities in current funding are traceable to the de jure 
system, have discriminatory effects, and should be reformed to
the extent practicable and consistent with sound educational 
practices.

Plaintiffs also contend that the district court erred by 
failing to consider adjustments to the funding formula to take 
into account student financial need and the higher costs of 
remedial education, or increases in funding to the [HBIs] to aid

72
th. f.,nH=he court found that "the endowment for JSU and
sound steps'toward corrLt^ng^S
funding for^he s m a l ^ f a r a ^ v e l ” *  f?“nd “the PP°P°sed'
endowment . . . prSmlse r L n s ? J c a U y  t o ^ o l ^ ^ S U ' ^ o ? ^ ? 03613 
present prohfems and is ,si=, otherwise e d u c a U o n a l l y ^ n ' d T

88



of decades ofthem in overcoming the cumulative effects 

underfunding." U.S. Br. at 44.” Plaintiffs specifically 
request funding to enhance existing facilities, including 
libraries and equipment, at the HBIs.74

Defendants contend that the district court correctly found 
that no current funding policy is traceable to de jure 
segregation. Moreover, defendants argue that the dedication of 
funds for general institutional enhancement does not contribute 
to the desegregation of historically black institutions. 

c* Analysis
We find the district court's ruling to be supported by the 

record and consistent with Fordice. Fordice required the 
district court to examine challenged policies and practices to 
determine if they had roots in the de jure era. The district 
court correctly focused on the traceability of policies and 
practices that result in funding disparities rather than the 
traceability of the disparities themselves, as plaintiffs urge.

73 •Plaintiffs suggest in their briefs that the distr-if'̂ -

is impractical and e L c a t i o n l l l y ^ s L n d ^ A J e r ^ T ^ ^ Q ^  2J5* at 1453, the court did not purport to rely ^clusiv4lv on
^ f b : 9a S r e d E"deM r”inati0n “« »  f ^ g l ^ L ^ i t

74

tranSf er ”
arguments relating bo programs have been addressed in Parts

addressed
89



The district court did not clearly err in finding that the 
funding formula itself is not traceable to de jure segregation. 
Unlike the previous formula, which allocated funds based on 
mission designations, the present formula allocates funds as a 
function of the size of each institution's enrollment, faculty, 
and physical plant, while the formula responds to conditions 
that to a significant degree have resulted from the mission 
designations (and consequently results in the HWIs receiving a 
greater proportion of funds), the manner in which the formula
does so is guided by valid educational concerns and is not linked 
to any prior discriminatory practice.

Plaintiffs argue that the district court should have 
considered adjustments to the funding formula in two respects, 
neither of which has merit. First, plaintiffs argue that the 
formula should be adjusted for the higher cost of remedial 
education, citing evidence that a disproportionately high number 
of black students in Mississippi are underprepared for college 
and that such an adjustment would encourage the HWIs to provide 
remedial courses and to attract black students and would aid the 
HBIs in providing the remedial instruction needed by their
students. Plaintiffs have not, however, identified any traceable 
policy related to the funding of remedial education, nor have 
they identified any record evidence that remedial education as 
structured under the remedial decree is or is likely to be 
underfunded; the decree itself requires the State to provide
funding for the summer program. If, after examination of the

90



results of the summer program implementation, the district court 
finds that the program needs to be modified or expanded, then the 
district court should order appropriate funding at that time.75 
We have also ordered the district court to reconsider paragraph 2 
of the remedial decree insofar as it eliminates the remedial 
courses previously offered at each of the eight universities.
If, after such reconsideration, the district court concludes that 
any or all of these courses should be reinstated, then it should 
order appropriate funding.

Second, plaintiffs argue that the funding formula should be 
adjusted to take into account the proportion of students at a 
university who are in need of financial aid. As it currently 
operates, the funding formula provides funds for scholarships and 
fellowships (which are only a portion of the total financial aid 
available to students at each university) on the basis of each 
university's tuition income.76 The district court found that

.. i ■fri-vate plaintiffs contend that because the fundino formula does not provide additional funds to meet the needs of
“d i s i n t e r e s t prepared students, the formula encourages HWI 
araume^ !s mnn? US1?9 *Vailable e*cePti°ns to admissions. This 
adLsIJon standards. 9 °f °“r rUli"9 on “"^graduate
4( According to evidence
scholarships and fellowships’’ defined as follows:

presented by the Board, the 
component of the formula is

Includes expenditures for scholarships and fellowshiDs
thetilnsJ??n'r0f out^lght 9rants to students selected by __ institution and financed from current funds,
t r a ^ ^  =t °r “nrestricted. It also should include trainee stipends, prizes, and awards. The recipient of
t h ? rant is not required to perform service to the institution as consideration for the grant nor is e expected to repay the amount of the grant to the

91



this practice is neither unusual nor unique to Mississippi, but 
that in Mississippi the universities that charge the highest 
tuition —  the three comprehensive HWIs —  also generally have 
the largest proportion of students who have little or no need for 
financial assistance. Ayers II, 879 F. Supp. at 1451. Again, 
however, plaintiffs have identified no traceable policy 
concerning the adequacy of scholarship and fellowship funds 
provided to the HBIs. Any potential segregative effects of the 
failure of the formula to take financial need into account is a 
function of the socioeconomic status of black applicants, not a 
traceable policy of the de jure system.

Plaintiffs' argument for general funds to enhance facilities 
is not supported by this record. The district court found “no 
pattern of inequity in funding in recent years for the HBIs as a 
group” with respect to facilities. Id, at 1457. The court's 
finding that funding for capital improvements and repair and 
renovation disproportionately benefitted the HBIs during the 
1970s and 1980s is supported by the record, as is the court's 
finding that the inferior maintenance of the HBIs is not due to 
funding inequities but may result from decisions at the HBIs to
set aside operation and maintenance funds for other uses. Sge 
id. at 1455, 1458.

As to library allocations, the district court's finding that 
it would be educationally unsound to increase the size of the

funding source.
Bd. R-274.

92



holdings of a university's library beyond the scope of its 
mission is not clearly erroneous. Funds for library acquisitions 
are provided through the academic support component of the 
funding formula, and plaintiffs identify no evidence that this
method of providing library funding is itself traceable to the ge 
jure system.

The court's findings and conclusions concerning equipment 
funding are more difficult for us to interpret. The court found 
that the quality of fixed equipment, such as science lab 
furnishings, at the HBIs is inferior to that at the HWIs. icL, at 
1457. Likewise, the court found that the technical and 
scientific equipment at the HWIs is “more advanced and generally 
m  better condition than that of the HBIs.” id. We are unable 
to determine based on this record, however, whether these 
equipment disparities implicate the funding formula, line item 
appropriations for capital improvements, or self-generated funds. 
Nor are we able to determine the reasons for the disparities, 
which the district court opinion leaves unexplained. The court's 
determination that policies and practices governing equipment 
availability follow the mission assignments is perplexing in view 
of overlaps in the missions of the eight universities. Each 
university offers, for instance, undergraduate instruction. 
Undergraduate instruction in foreign languages, chemistry, 
biology, or computing, to take a few examples, benefits from the 
availability of appropriate equipment. Libraries likewise 
benefit from the availability of modern technological equipment.

93



There is no apparent reason why the mission assignments, insofar 
as they relate to common university features such as these, 
should result in disparities in equipment quality between the 
HBIs and the HWIs. Put somewhat differently, if the different 
mission assignments are adduced as a reason for marked 
disparities in equipment that is necessary or desirable for the 
undergraduate education that is provided at all eight 
universities, then they may indicate the existence of a policy or 
practice traceable to the de„jure era that has present 
segregative effects in that equipment quality may affect student 
choice. We therefore remand the issue of equipment funding to 
he district court for further factfinding on the causes of the 

disparities. To the extent the disparities are attributable to 
the mission assignments and have segregative effects that will be 
reduced by additional funding, relief may be in order. 

d- Conclusions regarding funding 
We affirm the district court's findings and conclusions 

regarding funding, except with regard to funding of equipment.
We remand the issue of equipment funding to the district court 
for further factfinding on the cause and segregative effect of 
the disparities, and, if necessary, the implementation of 
appropriate relief.

C’ Employment of Black Faculty and Administrator
At both the 1987 and 1994 trials, plaintiffs challenged 

defendants' employment policies and practices on the ground that

94



they perpetuated segregation by resulting in racially 
identifiable faculty and administrators at Mississippi's public 
institutions of higher education and in race-based differences in 
faculty rank, tenure, and salary. Id^ at 1459. After hearing 
extensive testimony on remand, the district court found that no
current employment policies or practices are traceable to de jure 
segregation. Id̂ . at 1 4 7 7 .

Plaintiffs contend on appeal that the dearth of black 
faculty and administrators at the HWIs is traceable to the dual 
system and continues to have segregative effects by impeding the 
ability of those institutions to recruit black students. While 
not challenging the district court's finding that the HWIs have 
been making genuine efforts to recruit more black faculty and 
have hired more black faculty than would be statistically 
predicted, plaintiffs nevertheless argue that this finding 
addresses only entry-level hiring and not the limited employment 
of blacks in tenured faculty and administrative positions. 
Plaintiffs therefore maintain that the district court was 
constitutionally required to order the Board to increase efforts 
to hire and promote more black individuals to these levels. In 
addition, plaintiffs contend that the district court should have
ordered relief with regard to the disparities in faculty salaries 
at the HBIs and HWIs.

Under the de -jure system, no blacks served as faculty, 
administrators, or managers at the HWIs. Id^ at 1459. The 
district court found during the initial trial in this case that

95



Mississippi has since adopted race-neutral hiring practices, id. 
As the district court recognized, however, the inquiry on remand 
must go beyond implementation of race-neutral practices and focus 
upon the identification of remnants within the hiring process 

that continue to foster segregation or the racial identiflability 
of the institutions of higher learning in Mississippi.” id.

Although the district court found that the HWIs remain 
racially identifiable at the level of administrators and tenured 
faculty,77 id. at 1462, it also found that since 1974 the HWIs 
have hired more black faculty than would be expected based on a 
statistical analysis of the qualified labor pool and national 
hiring demands. Id. at 1461, 1463. Mississippi's HWIs compete 
with other universities, particularly predominantly black 
universities, as well as business, industry, and government for 
the relatively small number of blacks who earn doctorate degrees 
each year.78 Id. at 1461. Under these circumstances, the 
district court found that “[ajlthough the racial predominance of 
faculty and administrators at the HWIs and the shortage of

the H;;sFw0errethwehfter,10an
1992 98% of the administrators at the ^s'were w h S  a n d ^black. Ayers II, 879 F. Supp. at 1460. white, and 2%

awarded S  ti^1' ffr instance' blacks earned 3.8% of doctorates

96



qualified black faculty are to some extent attributable to de 
jure segregation, the HWIs are making sincere and serious efforts 
to increase the percentages of African-American faculty and 
administrators at these institutions.” id. at 1463.

The relatively small number of blacks in tenured faculty and 
administrative positions at the HWIs may be attributable at least 
m  part to the de_, lure system, but racial identifiability at 
these levels itself does not establish a constitutional 
violation. See Fordice, 505 U.S. at 743. As we noted earlier,
— rdice re3ects the notion that the State must remedy all present 
discriminatory effects without regard to “whether such 
consequences flow from policies rooted in the prior system.” id, 
at 730 n.4. Plaintiffs identify no such policies with respect to 
selection of tenured faculty and administrators. 79 The district 
court found, rather, that black doctorate holders are relatively

79 •■, . respect to administrative positions Driv a t P
plaintiffs contend that the district court failed to consider
in theCcase' Boar? . approves all such hires, and
approvals with knowledge of^he^ac^of^he^ospec^ivf65 ^  
employees. Private plaintiffs link this practice with evidence
served^t^the^level of ? “  °"ly personss>ervea at the level of dean or above at the hwts anH
e ? S ? r L ° L blaCk rffaCUlty concerninc^unsuccessfulefforts to secure administrative positions at MSU.

We find that the district court did not err bv fail inn tn 
find a traceable practice on the basis of such evidence Without

that the
97



few end in high demand,- that representation of blacks in the 
faculty ranks of the HWIs exceeds reasonable expectations, and 
that the HWIs actively employ a variety of measures to attract 
and retain qualified black faculty, flyers t t . 879 F. Supp. at 
1461-62.

The very low percentages of blacks holding either full 
professor status or administrative rank at the HWIs are indeed a 
sobering reflection of longstanding efforts to limit the 
educational opportunities of black citizens, not in Mississippi 
alone. in view of the above findings, however, and combined with 
the lack of evidence linking any present policies to the de jure 
system, we find no error in the district court's ruling. We 
conclude that the district court correctly applied the standards 
articulated in Fordice in determining that “[t]here is no current 
policy or practice in a relevant sense that produces the shortage 
of available black faculty, nor can liability be based on prior 
exclusionary admissions policies and practices that reduced the 
qualified pool, in light of the State's continuous substantial 
affirmative efforts to correct this imbalance.” idL at 1463.

With respect to disparities in faculty salaries, the 
district court did not err in declining to order relief in light

that' to the extent that a terminal decree is a 
position^(as an
dean), the scarcity of'’black6^ " ? ^ ^ ^ ^ ^ ^ ^ 5^ ^ 3^ 3? ^ 6’"iC
2“ S 1S . S S r S S 2 . * dV“ " ly a“ eCt the number°ofdhigh-lIvel

98



of its finding that such disparities reflect legitimate 
differences, keyed to discipline and rank, in average faculty 
salaries at peer institutions in the region. id, at 1 4 5 9 . The 
court found it significant, moreover, that, although funding for 
faculty salaries is provided by the State under the formula, each 
institution has the autonomy to determine the number of faculty 
positions needed, their rank within the university, and the 
compensation for that rank. Id, Finding no traceable policy, 
the court properly declined to order relief.

We affirm the district court's findings of fact and 
conclusions of law on the subject of the defendants' employment 
policies and practices.

System Governance
Plaintiffs argued before the district court that vestiges of 

the de_iure system could be found with respect to the composition 
of the Board and its staff. All institutions of higher learning 
in Mississippi have been governed by a single entity —  the Board 
of Trustees of State Institutions of Higher Learning —  since 
1932. No black person served on the Board until 1972, and no 
black person was appointed to serve as a professional staff 
member until 1974. id, at 1473. At present, the twelve members 
of the Board are appointed by the governor with the advice and
consent of the Mississippi senate.

The district court found no evidence of a current practice 
of denying or diluting the representation of black citizens on

99



the Board. —  At the time of trial/ the Board had three black 
members and its immediate past president was black. id^ of the
Board's 108 employees, 26 were black, id, The district court 
noted that black Board staff members hold professional positions 
of responsibility such as Assistant Commissioner for Academic 
Affairs and Associate Commissioner of Academic Affairs. id.

Private plaintiffs contend that the district court ignored 
evidence of Board selection practices that minimize the 
participation of black persons on the Board, as well as evidence 
of the Board's practice of hiring blacks for only low-level 
positions on staff.

With respect to Board composition, private plaintiffs cite 
evidence that from 1972 to 1992, only six out of 24 to 30 newly 
seated Board members were black. We are unable to conclude on 
the basis of this bare statistic that the district court clearly 
erred in finding no traceable policy or practice concerning Board 
composition. After reviewing both the history of black persons' 
exclusion from the Board and the post-1972 role of black Board 
members, the district court found that “(t]he fact that blacks 
have actively participated on the Board for more than twenty 
years indicates that no current exclusionary policy exists.” Id, 
As with employment, numerical disparities alone do not establish 
liability for maintaining remnants of the prior dual system.

With respect to Board staff, private plaintiffs advance two 
related contentions. First, they argue that the district court's 
findings regarding staffing totals are clearly erroneous. After

100



reviewing the record, we conclude that this argument is without 
merit. 81 Second, private plaintiffs argue that a significant 
majority of staff positions held by blacks are in low-level job 
categories. This argument is unavailing for reasons similar to 
those discussed above; private plaintiffs rely on employment 
figures without regard to other information that might reveal a 
traceable practice with discriminatory effects, such as the 
relevant pool of qualified candidates or the particulars of the 
appointment process. Accordingly, we do not disturb the district 
court's finding of no traceable policy or practice in the area of 
system governance. We affirm the district court's findings of 
fact and conclusions of law on the subject of system governance.

I V .  C O N C L U S IO N

For the foregoing reasons, we affirm the district court's
findings of fact, conclusions of law, and remedial decree except 
as follows:

1- In affirming the district court's 
implementation of the Board's admissions standards, we 
do not affirm the elimination of the remedial courses 
previously offered at each of the eight universities.
We remand this issue for immediate reconsideration in

total n/ “ Vat; Plaintiffs argue that blacks held only 23 of a
exhibitf
year?S S  i°8 P O s i ^ o n s V S a tthis disparity. r n° expiation in their brief for

101



the light of this opinion. If the district court 
concludes that any or all of the previously offered 
remedial courses should be reinstated, the same should 
be implemented, with appropriate funding, to be 
effective beginning with the academic year 1997-98.
The district court should provide findings of fact and 
conclusions of law in support of its decision regarding 
reinstatement.

2. We reverse the district court's finding that 
the use of ACT cutoff scores as a criterion for the 
award of scholarships at the HWIs is not traceable to 
the de jure system and does not currently foster 
segregation. We remand for determination of the 
practicability and educational soundness of reforming 
this aspect of the undergraduate scholarship policies 
at the HWIs and the implementation, if necessary, of 
appropriate remedial relief to be effective beginning 
with the academic year 1 9 9 8-9 9 .

3. We direct the district court on remand to 
clarify the status of the Board's proposal to merge 
Mississippi Valley State with Delta State and, if the 
district court confirms that merger will no longer be 
pursued, to vacate paragraph 12 of the remedial decree 
and to incorporate into the remedial decree (a) a 
provision directing the Board to study and to report to 
the Monitoring Committee on new academic programs that

102



have a reasonable chance of increasing other-race 
presence at Mississippi Valley State and (b) a 
provision requiring the Board to study and to report to 
the Monitoring Committee on unnecessary program
duplication between Mississippi Valley State and Delta 
State.

4. We direct the district court on remand to 
incorporate into the remedial decree a provision 
directing the Board to study and report to the 
Monitoring Committee on new academic and land grant 
programs that have a reasonable chance of increasing 
other-race presence at Alcorn State.

5. On the issue of accreditation, the district 
court should determine the status of current efforts to 
achieve accreditation of existing business programs at 
Jackson State and order appropriate relief, if 
necessary, to ensure that the Board is taking'steps 
commensurate with its role in this accreditation 
process.

6 . We remand the issue of equipment funding to 
the district court for further factfinding on the cause 
and segregative effect of the disparities, and, if 
necessary, the implementation of appropriate relief.
We understand the district court's continuing jurisdiction 

to encompass the evaluation of the effectiveness of the spring 
screening and summer remedial program, as a component of the

103



objectives ofadmissions system, in achieving its intended 
identifying and admitting those students who are capable, with 
reasonable remediation, of doing college level work but who fail 
to qualify for regular admission. If the district court 
ultimately concludes that this program (as it may be modified) is 
unable to any significant degree to achieve its objectives, then 
the court should, if possible, identify and implement another 
practicable and educationally sound method for achieving those 
objectives in sufficient time for the academic year 1999-2000.
If, after examination of the results of the summer program 
implementation, the district court finds that the program needs 
to be modified or expanded, then the district court should order 
appropriate funding at that time.

Any further appeals shall be to this panel.
AFFIRMED in PART, REVERSED in PART, and REMANDED for further 

proceedings consistent with this opinion. Each party shall bear 
its own costs.

104