United States v. Mabus Brief for Respondents

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QUESTIONS PRESENTED

1. The private petitioners' question concerning the scope of 
the legal duty to disestablish should be more precisely stated 
under the court of appeals' opinion as follows:

Whether Mississippi's affirmative duty to 
disestablish its prior system of de jure segrega­
tion in higher education extends beyond discon­
tinuing prior discrim inatory practices and 
adopting and implementing for years good- 
faith, race-neutral policies and procedures 
which afford all students real freedom of choice.

2. The private petitioners' question concerning the appli­
cability of Title VI regulation 34 C.RR. § 100.3(b)(6)(i) should 
be more precisely stated on this record as follows:

Whether Title VI and 34 CF.R, § 100.3(b)(6)(i) 
impose on Mississippi an affirmative duty to dises­
tablish its prior system of de jure segregation in 
higher education beyond the adoption and years of 
implementation of genuine nondiscriminatory poli­
cies coupled with substantial affirmative efforts to 
promote desegregation which afford all students 
real freedom of choice.

3. The United States' question misconstrues the court of 
appeals' opinion. The proper question is as follows:

Whether the district court's finding that the 
continued racial identifiability of Mississippi 
universities persists today as the result of free 
and unfettered choice of students and personnel 
and despite the State's substantial affirmative 
good-faith efforts in "other-race" recruitment 
and resource allocation is clearly erroneous.



ii

TABLE OF CONTENTS
Page

QUESTIONS P R E SEN TE D .................................    i

STATEMENT OF THE C A SE............................................... 2

1. The Parties' Contentions at Trial ............. ............  3

2. The Factual R eco rd .....................................................  5

a. Student Recruitment............................................. 7

b. Admission Standards........................................... 10

c. Faculty and Staff Employment........................ 16

d. Institutional R esources...................   19

i. M iss io n s .........................................................  19

ii. Funding..........................................................  21

iii. Programs...............................    23

iv. Facilities...........................................................  28

3. The District Court's Decision..................................  29

4. The Court of Appeals' Decision............................ 31

SUMMARY OF ARGUMENT............................................... 33

A RG UM EN T............................................................................... 36

I. Mississippi has fulfilled its duty under the 
Fourteenth Amendment to disestablish state- 
im posed segregation  in higher education 
through the adoption and years of implemen­
tation of good-faith, genuinely nondiscrimina- 
tory policies which do not contribute to 
institutional racial identifiability...........................  36



Ill

TABLE OF CONTENTS -  Continued
Page

A. The constitutional duty to disestablish
state-imposed segregation in higher edu­
cation may be satisfied by discontinuing 
prior discriminatory practices and imple­
menting good-faith, race-neutral policies 
and procedures.................................................. .. 36

B. The district court's finding that the contin­
ued racial identifiability of Mississippi 
universities persists today as the result of 
free and unfettered choice of students and 
personnel is not clearly erroneous.............  48

1. The nondiscriminatory, educationally
reasonable current admission stan­
dards are not the cause of any con­
t i n u e d  r a c i a l  i d e n t i f i a b i l i t y  of  
universities.........................................    49

2. The educationally reasonable assign­
ment of missions and allocation of 
resources are not the cause of any con­
tinued racial identifiability of the uni­
versities........................... ...  ............................ 57

II. The duty to disestablish state-imposed segrega­
tion in higher education is no greater under Title 
VI than under the Constitution. In any event 
Mississippi has fulfilled any alleged greater duty 
under Title VI through the adoption and years of 
implementation of genuine nondiscriminatory 
policies coupled with substantial affirmative 
efforts to promote desegregation.............................. 64

CO N C LU SIO N ................. ........................................................  70



IV

TABLE OF AUTHORITIES
Page

C ases

Alabama State Teachers Ass'n v. Alabama Public 
School and College Auth., 289 F.Supp. 784 (M.D.
Ala. 1968), aff'd per curiam, 393 U.S. 400 (1969) 

........................................................................................... 31, 39, 40

Alexander v. Choate, 469 U.S. 287 (1985)...........................  64

Artis V. Board of Regents, No. CV 479-251 (S.D. Ga.
Feb. 2, 1 9 8 1 ) ............................................................................ 63

Bazemore v. Friday, 478 U.S. 385 (1986)..................... passim

Board of Curators o f the University o f Missouri v.
Horowitz, 435 U.S. 78 (1 9 7 8 ) ............................................  45

Board of Education v. Dowell, 111 S.Ct. 630 (1991) . . . .  46

Brown v. Board of Education:

347 U.S. 483 (1 9 5 4 ) ........................................  34, 37, 60, 70

349 U.S. 294 (1 9 5 5 ) ................................................................ 37

City of Richmond v. /. A. Croson Company, 488 U.S.
469 (1989)............................................................................ 41, 45

Columbus Board of Education v. Penick, 443 U.S. 449
(1979)...........................................................................................  46

Dayton Board of Education v. Brinkman, 433 U.S. 406
(1977)..........................................................................   47

Dcthard v. Rawlinson, 433 U.S. 321 (1977).......................  51

Florida ex rel. Hawkins v. Board of Control, 350 U.S.
413 (1956)................................................................................... 36

Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986)............. 47

Geier v. Blanton, 427 F.Supp. 644 (M.D. Term. 1977) . . . .  63

Green v. County School Board of New Kent County,
391 U.S. 430 (1968)......................................................... passim



TABLE OF AUTHORITIES -  Continued
Page

Guardians Association v. Civil Service Commission of
City o f New York, 463 U.S. 582 (1983)..................... 64, 65

Hunter v. Underwood, 471 U.S. 222 (1985)................... .. 50

Keyes v. School District No. L Denver, Colorado, 413
U.S. 189 (1973 ) ........................................................................ 40

McLaurin v. Oklahoma State Regents, 339 U.S. 637
(1950) ...................................................................................... 34, 36

Milliken v. Bradley, 433 U.S. 267 (1977) ............................  56

M issouri ex rel. Gaines v. Canada, 305 U.S. 337
( 1 9 3 8 ) . . . . . ................................................................................  36

Norris v. State Council o f Higher Education for Vir­
ginia, 327 F.Supp. 1368 (E.D. Va.), aff'd, 404 U.S.
907 (1971)................................................................................... 39

Pasadena City Board of Education v. Spangler, 427
U.S. 424 (1976 ) ............................................................. , . . . .  42

Regents of the University of California v. Bakke, 438
U.S. 265 (1978) .................................................................47, 64

Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1 (1 9 7 1 ) .................................................   .37, 42

Sweatt V. Painter, 339 U.S. 629 (1950) .......................... 36

Sweezy v. New Hampshire, 354 U.S. 234 (1956)............... 47

United States v. LULAC, 793 F.2d 636 (5th Cir. 1986) . . . .  56

Watson V. City of Memphis, 373 U.S. 526 (1963)... .37, 38

Wygant v. fackson Board o f Education, 476 U.S. 267 
(1986)............................................ ................................... .. 46

S tatutes

Title VI of the Civil Rights Act of 1964 . . . . . . . . . . . . .  64

7 C.F.R. § 15.3(b)(6)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  65

34 C.F.R. § 100.3(b)(6)(i)...................... ...64, 65



Nos. 90-1205, 90-6588

In The

Supreme Court of the United States
October Term, 1991

UNITED STATES OF AMERICA,

Petitioner,
vs.

RAY MABUS, GOVERNOR OF 
MISSISSIPPI, ET AL„

Respondents.

JAKE AYERS, JR., ET AL„

Petitioners,
vs.

RAY MABUS, GOVERNOR OF 
MISSISSIPPI, ET AL.,

Respondents.

On Writs Of Certiorari 
To The United States Court Of 
Appeals For The Fifth Circuit

BRIEF FOR RESPONDENTS

The State of Mississippi respondents^ submit this 
consolidated response to the briefs separately filed by the

’ Respondents are the Governor, the Commissioner of 
Higher Education, the Board of Trustees of State Institutions of

(Continued on following page)

1



private petitioner class of black citizens and the United 
States.

STATEMENT OF THE CASE

The State of Mississippi admittedly maintained a seg­
regated system of higher education through at least 1962. 
The Board of Trustees and the universities subsequently 
im plem en ted , however, nonracia l ad m issions  and 
employment practices. Moreover, by the mid-1970's State 
policies clearly extended beyond the genuine operation of 
the universities without regard to race. The Board affir­
matively acted to send the unmistakable message that 
discriminatory practices were affairs of the past. Since 
that time the State has faithfully implemented nonracial 
practices coupled with good faith affirmative efforts to 
encourage further desegregation.

The petitioners' statem ents of the case unduly 
emphasize historical acts of state-imposed segregation of 
a long since concluded discriminatory era. While pre­
dominantly black and, to a lesser extent, predominantly 
white universities do remain, the record, district court 
opinion and court of appeals opinion preclude any notion 
of mechanical equation of Mississippi's system today

(Continued from previous page)
Higher Learning, the individual members of the Board of 
Trustees, Delta State University, Mississippi State University, 
Mississippi University for Women, the University of Missis­
sippi, the University of Southern Mississippi, and the chief 
administrative officer of each of these five universities. Unless 
the context otherwise requires, references in this brief to "the 
State" include all respondents. References to "the Board" 
address the Board of Trustees of State Institutions of Higher 
Learning.



with its distant unconstitutional past. The petitioners' 
statements are incomplete; they do not portray fairly the 
record as a whole or the lower courts' extensive findings. 
Consequently, extensive supplementation is required.

1. The Parties' C ontentions at Trial. Petitioners 
advanced their claims for "disestablishment" on two 
largely conflicting fronts. First, they asserted the State 
unlawfully "discriminated" against the predominantly 
b lack u n iv e rs it ie s  in the a llo ca t ion  of resources. 
(Amended Complaint, R. 40-41, Hf 3(b), (c), (d); Com­
plaint in Intervention, R. 94, f i b )  Petitioners urged sub­
stant ial  in st itu t io n a l  enhancem ent because of the 
predominant presence of blacks at these institutions. 
Indeed, private petitioners specifically sought the "equal­
ization" of resources between the predominantly black 
and predominantly white universities. (Amended Com­
plaint, R. 77-78, Prayer for Relief, *1 A(2)) Second, peti­
tioners demanded a greater black presence at the 
p red om in antly  whi t e  u n iv ers it ies .  Yet petit ioners 
advanced no contentions specifying the alleged degree of 
racial balance required or what efforts or results would 
allegedly be enough to constitute "disestablishment.

2 Thus, petitioners' proof overwhelmingly consisted of 
quantitative institutional comparisons according to predomi­
nant racial presence. Purported funding, program, facilities 
and land grant analyses were driven by race with virtually no 
consideration of normative educational criteria. The United 
States refused to submit a single government representative for 
deposition on any issue. (Notice of 30(b)(6) Deposition, R. 
1162-63; Motion for Protective Order, R. 1168-70) No spokes­
man for the Department of Education testified at any time.

(Continued on following page)



Mississippi's defenses were primarily represented in 
two ultimate alternative contentions: (i) the State has 
fulfilled its duty to disestablish state-imposed segrega­
tion by implementing and maintaining good faith, non- 
discriminatory and nonracial admissions and operational 
policies with respect to students, faculty and staff; and 
alternatively (ii) given the nondiscriminatory policies, the 
State in any event has fulfilled its duty through its affir­
mative good faith efforts to attract qualified black stu­
dents and personnel to predominantly white universities 
and qualified white students and personnel to predomi­
nantly black universities. Given the existence of such 
genuine policies, the State maintained that the mere con­
tinued existence of predominantly black and predomi­
nantly white universities is not unlawful considering 
individual freedom of choice and the varying objectives 
and advantages of such institutions. (Pretrial Order, R. 
1376, Exh. F Def. Statement of Contested Issues of Law)

Hence, the State's proof delineated the substantial 
efforts expended to further desegregation to the point of 
establishing the virtual exhaustion of feasible student, 
faculty and staff recruitment procedures. Board witnesses

(Continued from previous page)
The United States even declined to involve the United States 
Department of Agriculture which established and adminis­
tered many of the land grant policies challenged. Petitioners 
simply ignored the State's substantial efforts to increase the 
presence of other-race students, faculty and staff. To be sure, 
petitioners' standardized testing witness criticized the State's 
use of the American College Test (ACT), but he also declined to 
address the determinative issue of an appropriate admissions 
standard.



focused upon the legitimate educational criteria adhered 
to in admission, employment and resource allocation 
practices. The State proved the admission policies are not 
the cause of any institutional racial identifiability. The 
State demonstrated the absence of any racial pattern in 
the provision of resources. The record as a whole thereby 
reflects a system genuinely untainted by discriminatory 
actions, purposes, or effects.

2. The Factual Record. HEW's Office of Civil Rights 
contacted the Board in 1969 and the early 1970's in con­
junction with OCR's ongoing review of state systems of 
higher education once segregated by law. The Board 
advised OCR that the Mississippi system already com­
plied with all legal requisites. Nevertheless the Board 
indicated the State would take further affirmative steps to 
enhance desegregation. (Exh. Bd-001, J.A. 898) The Board 
and OCR could not agree, however, regarding an accept­
able statewide approach to promotion of further deseg­
regation.^ The absence of an agreement with OCR 
notwithstanding, the Board elected to implement a formal 
plan to foster desegregation which became known as the

3 A major sticking point was the absence of a comprehen­
sive approach to desegregation of the junior (community) col­
lege system. The state-supported establishment for higher 
education includes 15 junior colleges and 8 universities. It is 
not, however, a single system. Each junior college has its own 
local governing board. The pervasive presence of the junior 
colleges is significant. They span the entire State. They are 
accessible to virtually all Mississippi citizens. They actually 
enroll over 60% of all Mississippi high school graduates elect­
ing to participate in public higher education. (P.A. 119a; Exh. 
Bd-185 at 1-3, J.A. 1201-02)



"Plan of Compliance." (P.A. n9a;4  Exh. Bd-019, Bd-020, 
J.A. 904)

From the very outset of Plan development and imple­
mentation the Board declared the State's commitment to 
equal educational opportunity with irrefutable clarity. 
The Plan of Compliance identified its "basic objective" as 
"the improvement of educational opportunities for all 
citizens of the State of Mississippi with particular 
emphasis on equal access and retention for members of 
minority races"; the Plan repeatedly asserted as its funda­
mental goal the attraction of other-race students, faculty 
and staff to each university. (Exh. US-1 at 3, 6, 12, j.A. 66, 
68, 73) The Board directed the universities to implement 
the Plan to the best of their abilities. The Board pointedly 
responded to institutional questions concerning inter­
pretation of the commitments under the Plan. For exam­
ple, the Board explicitly instructed: "official representa­
tives of institutions are not to become directly involved 
with employers, schools, realtors, athletic officials, medi­
cal care providers, and all others who do not have a 
nondiscriminatory policy regarding race"; "recruiting of 
students is prohibited at schools that have not filed with 
the Board’ . . . a nondiscriminatory policy"; and each 
university is to "pay careful attention" to the "commit­
ments to employment and promotions of university

Citations to the lower court opinions will be referenced 
to the appendices following the United States' petition in 
which the opinions have been reproduced. Designations will 
be "P.A. [page]."



personnel" identified in the Plan. (Exh. Bd-020, J.A. 
904-06) The universities have properly responded.^

a. Student Recruitment. Each institution expends 
every reasonable effort to increase other-race student par­
ticipation. (Exh. US-960 at 10, J.A. 778-79; Exh. US-965 at 
91, J.A. 796-98; Exh. US-962 at 125; Exh. US-964 at 31; T. 
3493-94, J.A. 1708; US-967 at 12-13; Exh. Bd-010 thru 
Bd-018) It is not just a matter of all student recruiters 
seeking other-race students, for the universities also 
employ minority recruiters charged with this specific 
responsibility. Moreover, the universities do not limit 
such desegregative efforts to specifically employed staff; 
they involve other-race students, faculty and alumni, 
sometimes as multi-racial teams, in their recruitment 
efforts. (P.A. 134a; e.g., Exh. Bd-105 at 5, J.A. 913-14; 
Bd-069 at 5, Bd-044 at 6-7 & Bd-129 at 18; US-964 at 19-20, 
25-26 & 39-40; Exh. US-962 at 9, 22 & 49; Exh. US-961 at 
20, 28-29; Exh. US-950 at 17; US-967 at 7, 9 & 47; Exh. 
US-965 at 15-16 & 18-22; Exh. US-960 at 20, J.A. 779) 
Representatives of the predominantly white universities 
annually visit more than 100 predominantly black high 
schools, and representatives of the predominantly black 
universities expend similar efforts with respect to pre­
dominantly white high schools. (P.A. 134a-35a; e.g., Exh.

 ̂ The Board has required, and the institutions have pro­
vided, annual reports exhibiting the affirmative efforts 
expended toward increasing other-race presence at each uni­
versity. Following a detailed format established by the Board, 
the 109 comprehensive "implementation reports" submitted by 
the universities as of the time of trial demonstrate not only 
these efforts but also each institution's recognition of the 
State's serious commitment to affirmative action. (Exh. Bd-021 
thru Bd-129)



8

Bd-105 at 41-60, J.A. 946-72; Exh. Bd-033 at Attmt 1; Exh. 
Bd-021 thru Bd-129, listings of schools recruited)

University publications and promotional activities 
are significant components of the minority recruitment 
endeavors. The universities consciously depict other-race 
students in recruitment brochures and other university 
publications. (E.g., T. 3493, J.A. 1708; Exh. Bd-129 at 18, 
Bd-069 at 5 & Appendix, Bd-044 at 7; Exh. US-962 at 
19-20) Indeed, they specifically design many such pub­
lications exclusively to appeal to other-race students. 
(Exh. Bd-133, J.A. 997; Bd-140 thru Bd-144, J. A. 1012-95; 
Bd-159, J.A. 1113; Bd-104 at 5, Appendix B; Bd-121, Annex 
C; Exh. US-964 at 32-33; Exh. US-965 at 22-24; Exh. US-961 
at 37) The universities similarly utilize public media 
devices such as news releases, promotional radio spots, 
public service announcements, newspaper advertise­
ments, and display sponsorships to emphasize other-race 
participation in campus life. (P.A. 134a; Exh. Bd-033 at 4; 
Exh. Bd-069 at 5-6; Exh. Bd-071 at 3; Exh. Bd-077 at 8; 
Exh. US-962 at 19-20) Still additional examples of the 
State's commitment to increase other-race enrollment 
include financial assistance and minority scholarship pro­
grams, consortiums, cooperative, graduate and profes­
sional opportunities programs with junior colleges and 
universities with substantial other-race enrollment, spon­
sorship of programs with particular other-race appeal 
such as "Black History Week" and "Black Awareness 
Month," and maintenance of campus offices of minority 
student affairs. (Exh. Bd-033 at 5; Exh. US-967 at 54; Exh. 
US-964 at 35-36; Exh. Bd-102 at 21, 32, 34, Appendix L; 
Exh. Bd-104 at 5 & Appendix H; Exh. Bd-058 at 21-22; 
Exh. Bd-068 at 14; Exh. Bd-114 at 5-7, 16)



Furthermore, the State's commitment need not be 
measured exclusively by efforts to attract other-race stu­
dents. Once enrolled, other-race students enjoy com­
pletely desegregated campus environments. Minority 
students have significantly participated and succeeded at 
each institution. They have been elected to the univer­
sities' "Hall of Fame," to "Who's Who in American Col­
leges and Universities," "Mr. University" and home­
coming queen. Blacks have participated in intercollegiate 
or intramural athletics, as varsity cheerleaders, in scho­
lastic honorary societies, in bands and in performing 
groups. They have assumed leadership positions in a host 
of student government, school publication, residence hall 
and other student associations. (P.A. 135a; T. 3444, J.A. 
1691; Exh. Bd-042 at 15; Exh. Bd-101 at 40-45; T. 3509-10, 
J.A. 1713-14; Exh. Bd-068 at 9-12; Exh. Bd-083, § 7.g; Exh. 
Bd-125 at 14, 22; Exh. Bd-034 at 9-10; Exh. Bd-045 at 10-11, 
15-16; Exh. Bd-033 at 6; Exh. Bd-057 at 12-13; Exh. Bd-055 
at 15-16; Exh. Bd-101 at 41-43; Exh. Bd-128 at 30-32; Exh. 
Bd-042 at 15; Exh. Bd-103 at 24)

Racial percentages are by no means determinative, 
but the substantial "statistical success" of the universities 
in student recruitment should not be overlooked. The 
actual representation of blacks in the freshman classes at 
Delta State University, Mississippi State University, Mis­
sissippi University for Women, and the University of 
Southern Mississippi is statistically in parity with the 
representation of blacks in the qualified pools. No statisti­
cal distinction according to race can be drawn at these 
predominantly white universities; qualified blacks and



10

qualified whites are equally likely to enroll.^’ (T. 4219, J.A. 
1856-57)

b. Admission Standards. As in most states, a univer­
sity education is not immediately available in Mississippi 
to alt high school graduates, white or black. An aspiring 
first-time freshman student must complete a university 
preparatory curriculum and achieve a satisfactory score 
on the ACT.^ Successful completion of certain essential

 ̂ Private petitioners, but not the United States, attempt to 
utilize the University of Mississippi's (UM) absence from this 
list of institutions as evidence of discrimination. They of course 
ignore the obvious implications of such a blanket contention 
for the predominantly black universities. Private petitioners do 
also emphasize isolated individual complaints of blacks at UM, 
which complaints are largely unfounded. (T. 1393-96, J.A. 
1474-76; T. 1441-43, J.A. 1491-93; T. 2693-2705, J.A. 1597-1604; T. 
2775, J.A. 1634) Clearly any alleged statistical shortfall or soli­
tary grievances at UM cannot be attributed to any lack of 
genuine institutional commitment to nondiscriminatory poli­
cies and affirmative action. UM's other-race procedures are the 
same as, or in some instances even more elaborate than, those 
of other predominantly white institutions who may have 
enjoyed greater "statistical success." (T. 4118-32, J.A. 1837-46; 
Exh. US-962 at 9, 26-30, 119-25; Exh. Bd-094 thru Bd-105; Exh. 
Bd-140 thru Bd-147, J.A. 1012-1095; Exh. Bd-104 at 30-31 & 
Bd-103 at 28) The achievements of black students at UM are 
numerous and demonstrate UM's acceptance of black students 
into mainstream campus life. (Exh. Bd-lOO at 80-85 & Bd-101 at 
40-46) UM has dedicated over $6,000,000 of its own institu­
tional funds to affirmative action. (T. 4132, J.A. 1845) The 
district court correctly found no evidence that the compara­
tively low black enrollment results from official action. (PA. 
186a)

 ̂ The current admission standards are set forth in exhibit 
Bd-183a. (J.A. 1174) They have been pointedly summarized by

(Continued on following page)



11

academic courses in high school significantly contributes 
to academic readiness for the university experience. (T. 
3573-84) The ACT is indisputably a reliable instrument 
used nationwide as an integral component of college 
admission standards. Not an aptitude test, the ACT is a 
standardized measurement of developed academic abili­
ties deemed important for success in college. (T. 3711-14, 
J.A. 1759-61) The positive relationship between perform­
ance on the ACT and academic achievement has been 
clearly demonstrated at Mississippi universities. (P.A. 
129a; T. 3458-59, 3726-28, 3763-64; US-967 at 75-78; Exh. 
Bd-275)

The universities' particular curriculum and ACT req­
uisites are in no respect rigorous. No specific grade point 
average is even required. The ACT scores needed for 
automatic admission are extremely modest levels of 
achievement. Scores of 15 are only on the verge of a 
freshman reading level. (P.A. 130a; Exh. Bd-190 at 5-10) 
Nonetheless, students who score as low as 9 on the ACT 
are still considered for admission under exceptions poli­
cies. Students who achieve a 9 on the ACT English and 
social studies tests are only reading at a ninth grade 
level.« (T. 3732-33, J.A. 1769) Thus, the requisite score

(Continued from previous page)
both lower courts. (P.A. 7a-8a, 126a-28a) These present stan­
dards are plainly not limited to performance on standardized 
tests. It should probably be noted that the ACT organization 
has changed the test grading practices since trial. For example, 
a score of 15 in 1987 would be an 18 in 1991. This change is, 
however, of no substantive consequence here.

® Ninety-five percent of all students tested nationwide 
score 9 or above and over 70% of all students score 15 or 
above. (P.A. 130a; Exh. US-874 at 9) Nine out of every ten ACT- 

(Continued on following page)



12

levels at Mississippi universities differ dramatically from 
institutions having highly selective or even selective poli­
cies. (T. 3729-30, J.A. 1768) The Board's admission stan­
dards are also less demanding than NCAA Proposition 
48, the well-known national policy for athletes.® (P.A. 
131a-32a; T. 358-485, J.A. 1730-31)

Furthermore, no applicant to a public university is 
ever ultimately denied the opportunity to obtain a uni­
versity degree for failure to achieve a particular ACT 
score, including even the 9. Admission is at most 
deferred. Students may attend a public junior college 
without test score requirements and transfer after suc­
cessful completion of as few as 15 hours. Thousands of 
students elect to attend junior colleges in Mississippi; 
substantial numbers of these students subsequently 
transfer to public universities. (P.A. 133a; Exh. Bd-185, 
J.A. 1201-06; T. 3445-46, J.A. 1692; T. 3504-05, J.A. 1711; T. 
3724-25, J.A. 1767)

(Continued from previous page) 
tested students in Mississippi, including 80% of all black stu­
dents, score 9 or above. (T. 3730-31, J.A. 1768-69) The mean 
ACT score for blacks who evidence genuine aspirations for a 
university education by completing the high school college 
preparatory curriculum was 14.3 in 1986. (P.A. 132a; Exh. 
Bd-170) An expert for the United States appropriately charac­
terized scores of 10 and 11 as "drastically low" and certainly 
not indicative of academic readiness for university instruction. 
(P.A. 130a-31a; Exh, Bd-463 at 160-61, J.A. 1304-05)

® The Court should recall when evaluating the petitioners' 
admission challenges that the NCAA standard of an ACT score 
of 15 plus a 2.0 high school grade average with no exceptions 
applies uniformly to universities nationwide. (T. 3584-85, J.A. 
1730-31)



13

An ACT regional vice president with extensive expe­
rience in utilization of the ACT in college admissions 
standards persuasively testified to the reasonableness of 
the Board's present standards, including specifically the 
use of the ACT. While acknowledging that Board prac­
tices may not comport precisely with every ACT sugges­
tion, the ACT executive repeatedly emphasized the 
reasonableness of the standards. He appropriately evalu­
ated the Board's use of the ACT in the context of the 
scores required, other educational criteria considered, 
and transfer policies. (T. 3698-3710, 3715-33, J.A. 1753-69; 
Exh. US-970 at 124-26, 133-34, Dep. Exh. 5) The ACT 
executive directly confronted the very ACT-published 
statement on which petitioners so heavily rely. In his 
professional judgment the admission standards in their 
totality (i.e., the inclusion of modest ACT scores, high 
school academic achievement as measured by courses 
taken, multiple "high risk" criteria such as high school 
grades, class rank, extracurricular activities, special tal­
ents, and recommendations, and liberal transfer policies) 
are consistent with ACT's encouragement of utilization of 
criteria in addition to test scores in making admission 
decisions. (T. 3735-36, J.A. 1769-70)

Today's admission standards simply cannot be credi­
bly attributed to State actions of the now distant early 
1960's. The relevant admission standard actions have 
been taken by an altogether different Board under totally 
different circumstances based upon different, reasonable 
educational criteria and with different, reasonable educa­
tional objectives. Nothing in Board actions evidences pur­
poseful discrimination or any impermissible perpetuation 
of ACT utilization.



14

The Board implemented the pertinent admission 
standards in 1976 out of a systemwide concern for stu­
dent quality. This concern addressed not just the quality 
of entering students but also the level of university 
instruction and quality of graduates. The Board under­
standably lacked confidence in grades due to grade infla­
tion and lack of uniform course content in Mississippi 
high schools. It selected the ACT test and composite 
scores of 15 and 9 only after consultation with ACT. 
Moreover, the Board has always viewed the ACT require­
ments as modest to terribly low. The Board in any event 
has always recognized the substantial presence of open 
admission junior colleges and implemented liberal trans­
fer policies. (P.A. 121a-23a, 179a; T. 3550-63, J.A. 1717-24; 
Exh. Bd-180)

Furthermore, except for Mississippi University for 
Women, modifications to the admission standards since 
1976 have not included an increase in ACT score require­
ment at the predominantly white universities. Rather, the 
Board has mandated exceptions to the minimum for 
unqualified admission involving multiple education crite­
ria. It first confronted the continued inability of low 
achieving students to perform adequately in college not 
by raising admission standards but by implementation of 
costly developmental education programs. The Board 
implemented the high school course requirements, a 
measure of academic achievement in addition to the ACT, 
only after surveying high school educators to confirm the 
availability of such a college preparatory curriculum to 
all students. (P.A. 123a-25a; T. 3566-67, 3571-81, J.A. 
1726-30) Furthermore, all relevant admission standard 
actions have been taken at times when the Board's and



15

institutions' substantial commitments to increase minor­
ity presence were otherwise evident.

Nor can it be legitimately asserted that the admission 
standards discriminatorily affect blacks. Black students 
do on the average score somewhat lower on the ACT than 
do white students, but a variety of socioeconomic factors, 
and not simply race, affect a student's level of academic 
development. (P.A. 130a; Exh. Bd-172 at 3, 10; Exh. 
US-874 at 7-8) Blacks' disproportionate elections in high 
school not to take a college preparatory curriculum con­
tribute to the disparity. (P.A. 130a; T. 2284, 2314) Nonethe­
less, virtually no black students are denied admission to 
the predominantly white universities for low ACT scores. 
For example in 1986, Mississippi State University denied 
admission to no applicant scoring above 11 on the'ACT; 
the University of Mississippi denied admission to only 
nine black freshmen applicants who completed the 
admission process; and the University of Southern Mis­
sissippi has been unable in recent years to fill its quota of 
students who score below 15 because of an insufficient 
number of applicants whose high school record otherwise 
warranted admission. (P.A. 131a; T. 3440-41, J.A. 1688-89; 
T. 4165-66, J.A. 1846; Exh. US-964 at 140, 144-45)

The record similarly establishes that utilization of the 
ACT composite score of 15 is simply not the cause of the 
racial identity of the predominantly black institutions. An 
eminently qualified statistician demonstrated at trial that 
these institutions are not predominantly black because 
black students who first prefer to attend a predominantly 
white institution were "channeled" to black universities 
after failing to obtain a 15. (P.A. 184a; T. 4228-29, J.A.



16

1859) Moreover, petitioners' conclusory contentions that 
the State's use of the ACT "perpetuates duality" wholly 
fail to account for the existence of large numbers of 
whites who themselves score below 15. Indeed, there are 
greater numbers of whites than blacks at such low levels 
of academic development who certainly have the same 
opportunity as black students to choose a predominantly 
black university. (Exh. US-894i, 894j, J.A. 639-40, 645)

The petitioners' challenges to utilization of the ACT 
should also be examined in light of the United States 
Secretary of Education's confrontation of the well-known 
educational crisis facing this Nation. The National Com­
mission on Excellence in Education created by the Secre­
tary unequivocally recommends that universities "adopt 
more rigorous and measurable standards, and higher 
expectations, for academic performance and student con­
duct . . . and raise their requirements for admission." The 
Secretary specifically directs that "standardized tests of 
a c h i e v e me n t  (not  to be c onf us e d wi t h a pt i t ude  
tests) . . .  be administered . . . particularly from high 
school to college . . .  to certify the student's credentials." 
(Exh. Bd-201 at 9, I f ,  12, 27 & 28, J.A. 1216-23) The 
admission concerns confronted by the Board over the 
past decade and the remedial actions taken are among the 
various findings and implementing recommendations of 
the Secretary's blue ribbon task force. (T. 3585-91, 
3600-02, 3618-20, 3625)

c. Faculty and Staff Employment. At trial petitioners 
did not challenge the significant statistical presence of 
other-race faculty at the predominantly black univer­
sities. The United States abandoned its faculty and staff 
employment contentions altogether before the court of 
appeals and does so again before this Court. Private 
petitioners do continue to allege underrepresentation of



17

black faculty at the predominantly white institutions. 
They do so, however, in the teeth of overwhelming proof 
of considerable affirmative efforts to attract, employ, and 
retain black faculty and in utter disregard of State satis­
faction of any realistic statistical expectation.

The predominantly white universities have deployed 
a host of strategies to attract and retain qualified black 
faculty. (P.A. 136a) For example, they maintain formal 
equal employment opportunity and affirmative action 
programs and employ equal opportunity officers. (T. 
3431, J.A. 1683; T. 3498-99, |.A. 1710; T. 4119, j.A. 1837-38) 
Positions are widely publicized in the prominent higher 
education publications, including publications of special 
minority interest. (Exh. US-758, US-946 at 114, j.A. 772; 
US-959 at 14) The universities actively recruit at the grad­
uate schools of predominantly black universities, partici­
pate in cooperative and faculty exchange programs, and 
develop black faculty from the ranks of their own gradu­
ate students. The severe financial crisis notwithstanding, 
special funds are allocated to minorities for salary incen­
tives, supplementation and support. (T. 3425-26, J.A. 
1681-83; T. 3947, J.A. 1832; Exh. US-946 at 115, J.A. 772-73; 
Exh. Bd-041 at 18, Bd-066 at 19, Bd-067 at 18, Bd-104 at 
26-27) The universities prefer minority faculty in applica­
tion for faculty housing. (T. 4130-31, J.A. 1844; Exh. Bd. 
104 at 25)

There simply is no other recruitment procedure 
which the State could implement which would assure 
greater minority faculty representation at the predomi­
nantly white i ns t i t ut i ons . ( P. A.  199a; T. 3950-51, J.A.

Nor have petitioners attempted to identify any appre­
ciably different strategies. They do suggest a faculty 

(Continued on following page)



18

1834) Indeed, Mississippi's efforts are very similar to 
what institutions are doing in the recruitment of minority 
faculty throughout the Nation. This nationwide effort in 
higher education to employ minority faculty and admin­
istrators understandably significantly hampers the State's 
efforts. The vigorous competition of business and indus­
try for the extremely limited supply of blacks holding 
terminal degrees compounds the difficulty. Moreover, the 
State's lower salaries particularly impede employment of 
black faculty who, due to high demand, enjoy substantial 
leverage in negotiations. The State's competitive disad­
vantages likewise make it difficult to retain black faculty 
when hired. (P.A. 136a-38a; T. 3425-26, J.A. 1681-83; T. 
3940-50, J.A. 1827-34)

The imposing difficulties confronting the predomi­
nantly white universities notwithstanding, there is com­
pelling statistical evidence of affirmative action in the 
hiring process. Since 1974, the percentage of blacks hired 
significantly exceeds the black representation in the qual­
ified labor pool. Despite the higher turnover rate for 
blacks than for whites, black representation statistically 
comports with the relevant nationwide labor market for 
faculty employed since 1974.”  (P.A. 138a, 199a; T. 
4237-42, J.A. 1861-65)

(Continued from previous page) 
clearinghouse. Yet the State implemented one for a time and it 
did not work. (T. 951-53, J.A. 1445-47)

While such statistical evidence does not specifically 
apply to administrative positions alone, private petitioners' 
administrative staff contentions improperly extricate adminis­
tration from the State's overall affirmative nondiscriminatory 
employment commitments. Private petitioners also improperly

(Continued on following page)



19

d. Institutional Resources. The State disputes the rele­
vance of institutional differences in a diverse statewide 
system of public higher education with genuine non- 
discriminatory admissions and operational policies. The 
United States' comparison of resources according to pre­
dominant racial presence notwithstanding, the United 
States ultimately agrees that there is no legal obligation 
"to correct disparities between what was provided histor­
ically black schools -  in terms of funding, programs, 
facilities, and so forth -  and what was provided histori­
cally white schools." (U.S. Brief at 32) Private petitioners 
still insist, however, that resources must be redistributed 
to remedy the alleged "discrimination in resource alloca­
tion" to which blacks are subjected. Institutional differ­
ences do exist, but the record establishes such differences 
do not establish "discrimination." Blacks themselves are 
substantial beneficiaries of the educational opportunities 
nondiscriminatorily afforded by the comprehensive uni­
versities possessed of "superior" resources.

i. M issions. Definition of mission defines institu­
tional purpose and scope in relationship to instruction of 
students, research and public service. There is no dispute

(Continued from previous page) 
emphasize the presence of substantial numbers of black faculty 
at the predominantly black universities. The "pull of the 
umbilical cord" to return to predominantly black institutions 
no doubt substantially contributes to such black faculty pres­
ence; many feel very strongly about the preservation of pre­
dominantly black institutions; they possess a missionary 
commitment to the young blacks in attendance at such institu­
tions. (T. 3964-67) In any event this circumstance cannot be 
attributed to State failure to expend reasonable efforts to 
attract cpalified black faculty to the predominantly white uni­
versities.



20

that distinctions in institutional mission are commonplace 
within public systems of higher education;^^ jhat the 
Board's assignment of differential missions is educa­
tionally reasonable; and that the distinctive mission 
assignments do not evidence purposeful discrimination. 
(P.A. 193a) Private petitioners do erroneously assert that 
the 1981 mission designations discriminate against blacks 
by preserving a less expansive program scope at the 
predominantly black universities.

Again, this private petitioner assertion is first an 
institutional contention. It ignores the fact that many 
blacks enjoy the educational opportunities at the compre­
hensive universities. It is true that the 1981 mission desig­
nations limited the predominantly black universities. It is 
equally true, however, that the scope of the designations 
"put boundaries around all institutions." (T. 3654-56, J.A. 
1744-45) Moreover, the 1981 mission designations con­
templated a "more comprehensive" status for predomi­
nant l y b l ac k  J a c k s o n  St at e  Uni ve r s i t y  t han for 
predominantly white Delta State University and Missis­
sippi University for Women. (Exh. Bd-274, J.A. 1253) Fur­
thermore, the Board envisions continued enhancement of 
Jackson State University's urban m i s s i o n , including

’2 In the words of one of petitioners' key experts: "The 
unique character of American higher education is embodied in 
the concept of diversity. Diversity is the quality that differenti­
ates among colleges and universities. It is the quality of dis­
tinctiveness. This quality says that there is no better or best 
kind of collegiate institution; there are only different kinds, 
often with different expenses." (T. 608, J.A. 1400-01; Exh. 
Bd-459 at 28, J.A. 1284-85)

Jackson State University has also enjoyed past substan­
tial mission enhancement. For example, during a 17-year 

(Continued on following page)



21

meaningful graduate offerings with an urban emphasis 
and increased enrollments of better prepared students. (T. 
938-43, ].A. 1442-43; Exh. Bd-274, ].A. 1255-56; Exh. 
US-683 at 8-10, J.A, 273-75)

The present missions of the State's universities are a 
product of historical development. Yet this circumstance 
is true of public institutions everywhere. There was no 
comprehensive black university during the de jure era, 
but the mere absence today of a major doctoral granting, 
predominantly black university does not indicate dis­
criminatory mission assignments. Petitioners' own expert 
acknowledged that Jackson State is much more compre­
hensive than Delta State University and Mississippi Uni­
versity for Women. (T. 289, J.A. 1340) While they share 
the same mission designation, predominantly black 
Alcorn State University is more comprehensive than pre­
dominantly white Mississippi University for Women. (T. 
272-73) Petitioners offered no evidence addressing the 
educational justification for, or the educational feasibility 
of, a fourth and predominantly black major doctoral 
granting institution or any reassignment of existing insti­
tution missions.

ii. Funding. State funding of basic university opera­
tions is based upon a formula appropriately tied to the

(Continued from previous page) 
period through 1984: student enrollment tripled; faculty size 
and quality materially increased; five new schools were estab­
lished; the graduate school grew from a single master's degree 
in school administration to 35 master's degrees, 15 specialist's 
degrees and a doctorate in early childhood education; monu­
mental physical expansion occurred. (P.A. 139a; T. 4381-84, J.A. 
1877-79) One United States expert went so far as to state that 
"Jackson State has made about as much progress as any institu­
tion in the country." (Exh. Bd-463 at 108-09, J.A. 1302)



22

educational activities of the respective universities.'"* It is 
undisputed that the Board's funding process adheres to 
commonly applied, reasonable educational criteria. The 
educational expectation is that institutions with greater 
program breadth and research emphasis receive greater 
funding and thereby reflect the higher per student total 
revenues and expenditures. (P.A. 196a)

The Board so explained its funding practices. To fur­
ther prove the absence of discrimination the Board com­
pared M ississippi's  institutions with their regional 
"peers." These unchallenged analyses reveal that at least 
for the past decade the State's comprehensive universities 
have been underfunded when compared to institutions of 
similar mission. They further revealed, however, that 
Jackson State University and the four regional univer­
sities, two of which are predominantly black, have been 
overfunded under similar c o mp a r i s o n s . ( R A .  162a; T. 
3347-55, J.A. 1677-78) Thus, while funding for the three 
comprehensive universities is the predominant basis for 
petitioners' assertions, these institutions are the very ones 
being treated least favorably financially upon any consid­
eration of institutional mission.

Private petitioners fare no better by comparing stu­
dents rather than institutions. Their broad allegation 
regarding alleged less favorable financial treatment of 
black students than white students obviously does not

'"* At the time of trial the academic discipline, student 
credit hours, and level of instruction primarily drove the for­
mula.

*5 Further, no racial correlation whatever can be inferred 
from an analysis of the four institutions designated as regional 
universities. Petitioners' comparisons of these institutions with 
each other yielded in their own words a "very mixed pattern." 
(T. 542-43)



23

hold true under their own premise for the thousands of 
black students enrolled in the predominantly white com­
prehensive universities. Such an attempted direct focus 
upon students, while preferable to the irrelevant institu­
tional analyses, nonetheless itself demonstrates an inher­
ent fallacy in petitioners' resource contentions. Black 
students are allegedly "treated better financially" than 
other black students, white students better than other 
white students, white students better than some black 
students, and black students better than some white stu­
dents. (P.A. 196a-97a; T. 640-41, J.A. 1406-07) This would 
obviously be true in any system of universities with 
differential missions.''’

iii. Programs. Since the mid-1970's the State has sub­
jected the quality, number and distribution of academic 
programs to much professional study. Doctoral programs 
were thoroughly reviewed from 1976 through 1979; they 
were again reviewed in 1985 and 1986. All programs 
below the doctoral level except certain professional

Petitioners declined to assess the educational justifica­
tion for Board allocation of funds or the relative financial 
abilities of institutions to fulfill their educational missions. 
Further, the alleged "accumulated deficit" is not among the 
noncomprehensive universities. There is no correlation by race 
among the noncomprehensive universities in funding or with 
respect to areas in which funds have historically been 
expended. Yet, petitioners' own expert had written prior to his 
engagement in this case that comparisons of institutions with 
different missions "are largely without merit. They compare 
the proverbial 'apples and oranges,' for [such] universities are 
not similar; they are expected to do quite different things." 
Consequently, in studies before this litigation the expert was 
careful to adjust for distinctions in mission when making any 
comparisons across mission lines. (T. 604-18, J.A. 1398-1405; 
Exh. Bd-459 at 28, J.A. 1285)



24

programs were subject to an extensive six-year review 
commenced in 1980. The process involved not just sub­
stantial institutional participation but also extensive out­
side professional consultation. (P.A. 142a-43a; T. 3602-13, 
J.A. 1733-38)

The comprehensive review process resulted in the 
elimination of over 450 degree programs. Doctoral offer­
ings at the predominantly white comprehensive univer­
sities have been reduced 50%. The overall offerings at all 
universities have been reduced by 1 /3  with 69% of these 
terminated offerings having been at the predominantly 
white comprehensive universities. Only 11% of the pro­
grams eliminated were at predominantly black institu­
tions. (T. 3608-10, J.A. 1736; Exh. Bd-263, Chap. I at 5, J.A. 
1244-45) The Board concluded that the programs remain­
ing were “of the highest quality possible with the avail­
able resources." (Exh. Bd-263 at Introd., J.A. 1237)

The question of unnecessary duplication was of "cen­
tral concern" to the Board in the process. The Board was 
and remains highly conscious of its statutory charge to 
offer  " t he  broad est p oss ib le  educat i onal  o p p o r­
tunities . . . without inefficient and needless duplication." 
(Exh. Bd-263 at Introd., J.A. 1237) Following the review, 
the Board concluded further elimination of programs in 
significant numbers would both endanger institutional 
abilities to fulfill their missions and materially decrease 
access to quality academic offerings. (Exh. Bd-263 Chap. 
11 at 5, J.A. 1245)

The United States asserts that "Mississippi's unneces­
sary duplication of programs at historically white and 
historically black schools serves no useful academic func­
tion while continuing and reinforcing Mississippi's dual 
system of higher education." The United States did not 
genuinely attempt, however, to prove such circumstances.



25

Instead, petitioners predicated their challenge upon a 
quantitative listing of programs as between the predomi­
nantly white and predominantly black universities. Peti­
tioners did not evaluate program need, demand, cost, 
courses, faculty or level of difficulty of instruction. (T.
256- 57, j.A. 1332-33; T. 266-67, J.A. 1336-37) Petitioners 
failed to investigate whether elimination of any addi­
tional program would affect access to higher education 
for Mississippi citizens. They scrupulously avoided any 
judgment as to whether any program should have been 
awarded, terminated, consolidated or t r ans f e r r e d. ( T .
257- 58, l.A. 1333)

Petitioners' definition of "duplication" had nothing 
to do with the educational rationale for a program's 
existence. Petitioners elected to define "duplication" as 
any instance where at least one predominantly black uni­
versity and one predominantly white university offered 
courses in the same HEGIS discipline.’*̂ (T. 268, J.A. 1337) 
According to petitioners, "unnecessary" program dupli­
cation includes any offering by more than one institution 
in any d iscip line outside the basic core arts and

17 Furthermore, petitioners' institutional comparisons 
were not even based upon educational criteria but rather upon 
mere racial identifiability of institutions. Indeed, the witness 
"could not think" of any alleged basis but race for his group 
comparisons of the three predominantly black universities 
with the five predominantly white universities. (T. 263-64, J.A. 
1335-36) He, however, "said nothing at all about the reasoning 
or motivation" underlying program actions. (T. 266, J.A. 1336)

18 "HEGIS" refers merely to a classification system fre­
quently used in higher education to identify the general subject 
matter of programs. It does not address the specifics of course 
content, instruction or other fundamentals which would reflect 
the actual scope of the program. (T. 73-74)



26

sc ien ces .P e tit io n ers  also maintained that all duplication 
at the master's level, regardless of discipline, is unnecess­
ary. (T. 275-76, J.A. 1338-39) Thus, they advanced a statis­
tically meaningless concept of common curricula within 
the system. Every institution duplicates other institu­
tions.

The record clearly reveals there is no pattern of 
duplication associated with the racial identification of 
institutions. There is no more duplication between the 
predominantly black institutions and the predominantly 
white institutions than one would expect to find when 
comparing any three institutions with any five institu­
tions regardless of racial identification. Among the non- 
comprehensive universities, the three predominantly 
black universities are duplicated less than any other set 
of noncom prehensive inst i tutions.  (T. 4198-99, J.A. 
1851-52; T. 4203-04)

Petitioners' distinctions in program quality or pur­
ported findings of program inequality are also solely

This wholly unrealistic definition means that petitioners 
considered any instance of a predominantly black and predom­
inantly white university offering a course in, for example, 
business and commerce, accounting, business statistics, bank­
ing and finance, investment and securities, business manage­
ment and administration, real estate, insurance, elementary 
education, or secondary education to be "unnecessary" pro­
gram duplication. Stated differently, eight institutions could 
offer Russian, anthropology, or astrophysics without unnecess­
ary duplication, but no two institutions could offer accounting, 
banking and finance or secondary education. (T. 275-77, J.A. 
1338-39)

20 The Board proved there are some 162 dual curricular 
systems in Mississippi under petitioners' definition. (T. 
4197-98, J.A. 1851)



27

functions of institutional mission. The differences in peti­
tioners' measures of program quality are not associated 
with race, but simply demonstrate the difference between 
com prehensive anci noncomprehensive universities. 
There is no pattern among the noncomprehensive univer­
sities with respect to race. (T. 4206-07, J.A. 1852-53) Fur­
ther, the pattern of program reduction resulting from 
program review has been less among the predominantly 
black institutions than among the predominantly white 
institutions. (T. 4213-14, J.A. 1853-54)

Private petitioners challenge the State's land grant 
programs because the predominantly white Mississippi 
State University possesses greater land grant resources 
than predominantly black Alcorn State University. Deseg­
regation within Mississippi's land grant community is 
clearly not their focus. They ignore the blacks studying 
agriculture at MSU. They did not even attempt to address 
the motive, intent, good faith or educational justification 
underlying the State's present allocation of land grant 
resources. (T. 835-41, J.A. 1428-31) It was the State, and 
not petitioners, who pursued USDA input in this pro­
ceeding. Through the former administrative heads of the 
USDA's Cooperative State Research Service and Exten­
sion Service, the State proved its operation of these two 
fundamental programs was entirely consistent with 
USDA policies and practices.^’ (T. 3123-29, 3142-46, J.A.

21 These findings likewise rebut the United States one- 
sentence challenge alleging “extraordinary duplication." 
Under federal oversight the two universities jointly developed 
a single comprehensive program of agricultural research for 
the State. (P.A. 154a; T. 3104, J.A. 1414-15; T. 3142-46, J.A. 
1664-67) The Extension Service of the USDA has insured that 
the two universities' extension programs are supplementary 
and not duplicative. (T. 3284, J.A. 1672) See Exh. Bd-263 at 
Chapter II (Board explanation for agriculture programs).



28

1661-67; T. 3295-99, J.A. 1673-76) The record plainly estab­
lishes that land grant resources have been non- 
discriminatorily allocated consistent with legitimate 
educational and federal government criteria .22 (P.A. 
150a-56a, 198a)

iv. Facilities. Private petitioners' facilities conten­
tions perhaps prove better than any other their refusal to 
acknowledge that substantial State efforts eventually sat­
isfy the duty to disestablish, no matter how defined. The 
record makes clear no racial inference can be drawn from 
the distribution of facilities. (P.A. 163a-66a, 195a; T. 
3862-98, J.A. 1806-15) Jackson State University's president 
attested to the "monumental physical expansion" enjoyed 
by the institution during his 17 year tenure, (supra at 
20-21 n .l3) Petitioners' own expert readily admitted; 
"There has been equitable treatment in recent years" of the 
predominantly black institutions, for "it's clear that physi­
cal facilities resources in the past 30 years in Mississippi 
have been allocated equitably from the viewpoint of 
racial characteristics of the institutions." (T. 493-94, J.A. 
1379) Petitioners' assertion of the "inferior character" of 
the predominantly black universities' facilities is at most 
a function of institutional mission. They do not bother to 
dispute, apart from their mission challenge, the district

22 Petitioners' references to program offerings at off- 
campus centers are misleading and pointless. The Board has 
almost entirely curtailed predominantly white institution par­
ticipation in off-campus centers. Indeed, Board actions were 
such that petitioners limited their "off-campus center" proof to 
the pre-1981 period. Despite the district court's stated expecta­
tion and United States counsel's assurance that any such peti­
tioner contentions would be brought current, petitioners failed 
to do so. (T. 938-40, J.A. 1442-43; T. 3432-35, J.A. 1683-86; T. 
77-79, 251-53; Exh. U.S. 757)



29

court's finding that these universities possessed facilities 
of a "character" commensurate with their mission. (P.A. 
166a)

3. The District Court's Decision. The district court 
conducted a five-week bench trial and comprehensively 
considered the testimony of 71 witnesses and some 56,700 
pages of exhibits. (P.A. 109a) The court ultimately held 
that the "current actions on the part of the [State] demon­
strate conclusively that the [State is] fulfilling [its] affirma­
tive duty to disestablish the former de jure segregated 
system of higher education." (P.A. 201a) In so holding, 
the court flatly stated that "the affirmative duty to dis­
mantle a racially dual structure in the elementary and 
secondary levels applies also in the higher education 
context." (P.A. 170a-71a) Recognizing, however, the dis­
tinct attributes of higher education, the court declined to 
find any "level of racial mixture" to be "necessary to 
'effectively' desegregate the system." (P.A. 171a) Nev­
ertheless, the court plainly concluded that student enroll­
ment, faculty employment, and staff hiring patterns must 
be exam ined. It sim ply determ ined that "greater  
emphasis, should instead be placed on current state 
higher education policies and practices in order to insure 
that such policies and practices are racially neutral, 
developed and implemented in good faith, and do not 
substantially contribute to the continued racial identi- 
fiability of individual institutions." (P.A. 177a)

The court found that the State had indeed imple­
mented "race-neutral policies and procedures" involving 
student admission, student recruitment, faculty employ­
ment, staff hiring, and resource allocation. Moreover, the 
court concluded the State "[has] also undertaken substan­
tial affirmative efforts in the areas of other-race student 
and faculty-staff recruitment and funding and facility



30

allocation."23 (RA. 201a) The court noted petitioners' 
institutional enhancement claims sounded much like the 
assertion of Fourteenth Amendment rights on behalf of 
state political subdivisions, rights which just do not exist. 
(P.A. 190a-91a) Nonetheless, the court made the institu­
tional analyses suggested by petitioners but found no 
disparities in resources related to the "racial identi- 
fiability" of institutions.

23 Among its many specific factual findings substantiating 
its ultimate conclusions, the district court found with respect to 
student admission and recruitment; (i) the State's current 
admission policies were adopted for nondiscriminatory pur­
poses and are "inherently reasonable and educationally sound" 
(RA. 179a, 181a, 185a); (ii) "the State has used every reasonable 
means at its disposal in its recruitment efforts" (P.A. 187a); and 
(iii) the continued identifiability of institutions by student 
racial makeup is the "result of a free and unfettered choice on 
the part of individual students." (P.A. 187a) The court likewise 
concluded that no "additional minority faculty and staff 
recruitment procedures" exist which the State "could imple­
ment which would assure greater minority faculty and staff 
representation at the predominantly white institutions and 
minority staff representation with the Board of Trustees' own 
organization." (PA. 199a)

24 For example, the court's factual findings included: (i) "the 
current mission designations are rationally based on sound educa­
tional policies" (P.A. 193a); (ii) petitioners failed fo prove any 
placement of academic programs associated with race or that any 
program reallocation "would be feasible, educationally reasonable, 
or would offer any hope of substantial impact on student choice" 
(P.A. 194a); (iii) no racial pattern exists with respect to the provi­
sion or condition of physical facilities (P.A. 195a); (iv) "while 
differences in level of funding obviously exist, these differences are 
not accountable in terms of race, but rather are explained by 
legitimate educational distinctions among institutions" (PA. 196a); 
and (v) the differentiations made in land grant programs are 
"educationally sound and are not motivated by discriminatory 
motive." (P.A. 198a)



31

4. The Court o f  Appeals' D ecision. The court of 
appeals plainly stated at the outset of its opinion the 
ultimate basis for its affirmance; "Finding that the record 
makes clear that Mississippi has adopted and implemented 
race neutral policies for operating its colleges and univer­
sities and-that all students have real freedom of choice to 
attend the college or university they wish, we affirm." 
(P.A. 2a) (emphasis added). Like the district court, the 
court of ap p eals  acknow led ged  that "M iss iss ip p i 
was . . . constitutionally required to eliminate invidious 
racial distinctions and dismantle its dual system." (P.A. 
13a) Similar to the district court, the appellate court 
emphasized, however, that "universities are not simply 
institutions for advanced education. They differ in char­
acter fundam entally  from primary and secondary 
schools." (P.A. 23a) The court concluded that delineation 
of the duty to disestablish must necessarily honor the 
distinctive attributes of higher education, particularly 
freedom of choice and institutional diversity. (P.A. 
23a-26a) The appellate court read Bazemoref^^ in conjunc­
tion with ASTA,'^^ to be the proper assessment of this 
" 'wholly different milieu' of a voluntary association." 
(P.A. 25a) Because Mississippi, in thought, word and 
deed, discontinued "prior discriminatory practices" and 
adopted and implemented "good-faith, race-neutral poli­
cies and procedures," the court of appeals held that the 
State had satisfied its affirmative duty to disestablish. 
(P.A. 26a)

It cannot be overlooked that the court of appeals did 
not stop with definition of the legal duty to disestablish;

25 Bazemore v. Friday, 478 U.S. 385 (1986).
26 Alabama State Teachers Ass'n v. Alabama Public School and 

College Auth., 289 F. Supp. 784 (M.D. Ala. 1968), aff'd per curiam, 
393 U.S. 400 (1969).



32

it scrutinized the record to assure the presence of, and the 
use and encouragement of, genuine good-faith, race-neu­
tral policies which afford "real freedom of choice." The 
court saw two components of the system as bearing most 
directly on the presence of "true" student choice; institu­
tional mission designation and student admissions poli­
cies. The court of appeals found "the record amply 
supports the findings of the district court that the [insti­
tutional mission] designations are commonly used, edu­
cationally sound, and not motivated by discriminatory 
intent." (P.A. 31a) The court held "the district court gave 
full consideration to all aspects of the admissions pro­
cess"; and it concluded district court findings that the 
"current admissions policies and procedures in effect in 
Mississippi universities were adopted and developed in 
good faith and for nondiscriminatory purposes" were not 
clearly erroneous. (P.A. 34a-35a)

The en banc court also found statistical parity in 
respondents' faculty employment, noted the genuine 
commitment to increase black employment at the pre­
dominantly white universities, and acknowledged the 
substantial d ifficulties inherent in minority faculty 
recruitment. (P.A. 35a-36a) The court of appeals had 
"nothing to add" to district court findings concerning 
alleged "disparities between the historically black and 
historically white institutions regarding program offer­
ings and duplication among universities and branch cen­
ters, faculty, funding, library volumes, facilities, and land 
grant programs," with only one exception. (P.A. 36a) The 
court of appeals did find institutional "disparities" today 
to be "reminiscent" of the segregated system, but only in 
the sense that present institutional mission designations 
cannot be totally extricated from an institution's past. The 
court stated that such institutional distinctions do not



33

"den[y] equal educational opportunity or equal protec­
tion of law/' for respondents "have adopted good-faith, 
race-neutral policies and procedures and have fulfilled or 
exceeded their duty to open Mississippi universities to all 
citizens regardless of race." (P.A. 37a) (emphasis added). 
The en banc court rejected outright the private petitioner 
suggestion that such institutional differences require 
resource allocations to universities according to race to 
make the predominantly black universities "equal" to the 
predominantly white comprehensive universities. (P.A. 
37a)

SUM M ARY OF ARGUM ENT

The legal principles which govern this controversy 
are not best analyzed in the abstract. They are inextrica­
bly tied to the facts in Mississippi. Just as Mississippi 
once promoted an unconstitutional system of higher edu­
cation with schools of higher learning reserved solely for 
whites or solely for blacks, the State now affords real 
freedom of choice extending to all students and to all 
schools. Today's system, in policy and in fact, provides 
open, unimpeded access for all with no barrier on 
account of race. More than mere race neutral policy pre­
vails; for most of two decades there has been admirable 
State encouragement directed to desegregation. It may be 
that Mississippi was not required to go beyond adoption 
and implementation of race neutral policies so as to pro­
mote and encourage the exercise of choice in favor of an 
"other-race" institution. But it did. Thus, the State does 
not have the burden of arguing a legal standard applica­
ble to less persuasive facts.

The duty imposed on Mississippi to dismantle or 
disestablish its former system of de jure segregation has



34

been fulfilled. Mississippi's existing system is constitu­
tional because there is no evidence of present intentional 
discrimination. Continuing racial identifiability of institu­
tions resulting from individual student choice does not 
equate to unconstitutionality because the constitutional 
vice of state-imposed segregation has been eliminated. 
There exists unfettered, individual choice in Mississippi. 
The trial record reflects a commitment to the operation of 
a statewide system dedicated to the enhancement of inte­
grated higher education opportunities coupled with the 
goal of quality education.

Bazenwre best speaks to the fulfillment of the State's 
duty to disestablish in a setting, i.e., public higher educa­
tion, where individual choice traditionally plays a signifi­
cant role and, indeed, is consistent with laudable 
edu cational o b jectives .  Bazernore heeds M cLaurin . 
Bazenwre honors Brown. Bazernore appropriately distin­
guishes Green. Equal protection is a fact where equal 
opportunities afforded by the State are genuinely avail­
able to all on equal terms. Neither the Constitution nor 
Title VI require more than the fact of equal protection.

The United States challenges the standards for 
admission to the respective universities but in doing so, 
necessarily ignores the record. Present-day admissions 
standards exist for reasons unrelated to the "Meredith 
era." Even so, they are distressingly modest. The evi­
dence is that virtually all black applicants to predomi­
nantly white universities are accepted. There is no 
evidence that black students are forced to apply to a 
predominantly black university. Admission standards are 
no more unconstitutional "vestiges" or "remnants" of 
past de jure segregation than class attendance and class 
examination requirements.



35

The United States contends, again in the teeth of the 
findings below, that there are so-called "duplicative" pro­
grams in place which arguably impede further desegrega­
tion. Stripped of rhetoric, the contention is that it is 
unconstitutional for a single predominantly black and a 
single predominantly white university to both offer a 
course in business or education. A choice among institu­
tions which offer business and education is no more an 
unconstitutional "vestige" or "remnant" than a choice 
between institutions which offer English, history, mathe­
matics, social studies and science.

The private petitioners alone continue to press for 
more than free choice among all institutions including the 
comprehensive universities. The United States does not 
join in the suggestion of the private petitioners that black 
students have a constitutional right not only to choose a 
predominantly black institution but also a constitutional 
right upon enrollment to find buildings, grounds, pro­
grams and accoutrements equal to the comprehensive 
university the students could have chosen in the first 
place. Putting aside questions of educational policy and 
educational reasonableness or financial capability, the 
assertion that the Court must compel the State to provide 
at least equal resources to schools with a predominantly 
black population as a matter of constitutional or statutory 
necessity deserves short shrift.



36

ARGUM ENT

I. Mississippi has fulfilled its duty under the Four­
teenth A m endm ent to disestablish state-imposed  
segregation in higher education through the adop­
tion and years of implementation of good-faith, gen­
uinely n on d iscrim in atory  policies which do not 
contribute to institutional racial identifiability.

A. The constitutional duty to disestablish state- 
imposed segregation in higher education may 
be satisfied by discontinuing prior discrimina­
tory practices and im plem enting good-faith ,  
race-neutral policies and procedures.

Definition of a state's duty to disestablish de jure 
racially separate systems of higher education must focus 
upon the constitutional vice of state-imposed segregation. 
The crux of the inquiry is what is required of a state to 
assure genuine equality of treatment of similarly situated 
citizens. A state must of course admit black applicants to 
public institutions of higher education "under the rules 
and regulations applicable to other qualified candidates." 
Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413, 
413-14 (1956); Sweatt v. Painter, 339 U.S. 629 (1950); Mis­
souri ex rel. Gaines v. Canada, 305 U.S. 337 (1938). This 
Court has not suggested, however, any duty of "disestab­
lishment" for statewide higher education beyond good- 
faith nondiscriminatory policies and practices. Instead, 
the Court has expressly recognized "a vast difference -  a 
Constitutional difference -  between" state-imposed racial 
bars and racial identifiability continuing on account of 
individual choice. McLaurin v. Oklahoma State Regents, 339 
U.S. 637, 641 (1950).

The assertion that the Constitution requires no more 
than equal treatment is not to beg the determinative 
question of how the duty to disestablish is to be defined.



37

Mississippi acknowledges a duty to dismantle its dual 
system derived from Brown v. Board of Education, 347 U.S. 
483 (1954). The emphasis on nondiscriminatory policies is 
to say, however, that Brown itself went no further. Brown 
identified the constitutional right as the "availability on 
equal terms" of the educational opportunities afforded by 
the State. Id. at 493. The constitutional vice Brown con­
demned was state-imposed separation of the races. The 
judicial charge was "to effectuate a transition to a racially 
nondiscriminatory school system," one which recognized 
that "at stake [was] the personal interest of [black stu­
dents] in admission to public schools as soon as practica­
ble on a nondiscriminatory basis." Brown II, 349 U.S. at 
300-01. This Court's decisions mandating nondiscrimina­
tory maintenance of public parks and facilities are to the 
same specific effect. E.g., Watson v. City of Memphis, 373 
U.S. 526, 529-30 (1963).

To be sure. Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968), and its progeny in public 
primary and secondary education, rest on Brown; but 
neither Green's rejection of a freedom of choice plan that 
showed a lack of good faith, Swann's rejection of race- 
neutral policies imposed on a "loaded game board," nor 
any other grade school decision of this Court require 
state actions intended to manipulate racial presence in 
the altogether different arena of public higher education. 
Indeed, this Court long ago recognized that higher educa­
tion cannot be analyzed, tested or remedied precisely as 
elementary education. You have specifically grouped 
parks and state universities to distinguish them from ele­
mentary and secondary schools because desegregation of 
parks and state universities "do not present the same 
kinds of cognizable difficulties inhering in elimination of 
racial classifications in schools, at which attendance is 
compulsory, the adequacy of teachers and facilities crucial.



38

and questions of geographic assignment often of major 
significance." Watson, 373 U.S. at 532 n.4.

Consequently, it is this Court's explicit sanction in 
Bazernore of nondiscriminatory policies where individual 
choice determined participation that delineates the duty 
to disestablish in higher education, Bazernore plainly iden­
tifies the duty to disestablish state-imposed segregation 
in noncompulsory state-sponsored educational programs. 
Prior to 1965 the North Carolina Agricultural Extension 
Service assigned students according to race for participa­
tion in 4-H or homemaker clubs. Thereafter "in response 
to the Civil Rights Act of 1964 the Service discontinued 
its segregated club policy and opened [the clubs] to any 
otherwise eligible person regardless of race." 478 U.S. at 
407. Nevertheless, "a great many all-white and all-black 
clubs" remained.

The Court's holding based on these facts could not be 
clearer: "[T]his case presents no current violation of the 
Fourteenth Amendment since the Service has discon­
tinued its prior discriminatory practices and has adopted 
a wholly neutral admissions policy." 478 U.S. at 408. In so 
holding the Court focused not on the alleged continuance 
of "discriminatory effects" of state-imposed segregation 
but on the absence of evidence of present discrimination. 
The Court did not remotely require any comparative 
examination of program duplication^^ or the relative 
attractiveness of any club activity to blacks and whites. 
The Court neither undertook nor suggested any deter­
mination whether all "practicable" efforts had been

Petitioners claim Bazernore rests on the absence of differ­
ences among clubs. If the clubs were identical. North Carolina 
was guilty of "program duplication" far more pervasive than 
that which allegedly exists in Mississippi.



39

expended to alter the racial makeup of clubs. Instead, the 
Court unhesitantly rejected application of Green to the 
"wholly different milieu" of noncompulsory educational 
programs. The Court emphasized that your "cases requir­
ing parks and the like to be desegregated lend no support 
for requiring more than [discontinuation of prior discrim­
inatory practices and adoption of a wholly neutral admis­
sions policy.]" 478 U.S. at 408.

In what was admittedly a summary affirmance, this 
Court also recognized material distinctions between com­
pulsory lower education and noncompulsory higher edu­
cation in Alabama State Teacher's Association v. Alabama 
Public School and College Authority, 289 F. Supp. 784 (M.D. 
Ala. 1968), aff'd per curiam, 393 U.S. 400 (1969) (ASTA). On 
the heels of Green, the three-judge court in ASTA con­
cluded that the duty to disestablish or "dismantle" a dual 
higher education system is necessarily fulfilled by the 
ad op tion  and im p lem en tatio n  of good-faith  non- 
discriminatory practices. Justice Douglas' specific dissent 
from this Court's summary affirmance is instructive; he 
dissented from limiting the duty imposed upon higher 
education and from failing to apply the full duty imposed 
upon elementary and secondary education.

Further, the well-reasoned rationale of ASTA to 
which the en banc court of appeals adhered is all the more 
compelling in light of your subsequent decision in 
Bazemore. Student choice in higher education necessarily 
requires that the student "face the full range of diversity

28 The court of appeals correctly observed that the Court's 
summary affirmance of Norris v. State Council of Higher Educa­
tion for Virginia, 327 F.Supp. 1368 (E.D. Va.), aff d, 404 U.S. 907 
(1971), is not inconsistent with ASTA. Unlike ASTA, the lower 
court in Norris found that state action had both a discrimina­
tory "purpose and effect." (P.A. 18a)



40

in goals, facilities, equipment, course offerings, teacher 
training and salaries, and living arrangements" which 
historically have marked higher education throughout 
the Nation. ASTA, 289 F. Supp. at 788. Such a role for 
student choice obviously stands in even starker contrast 
to the student choice rejected in Green than did the ele­
ment of choice honored in Bazemore. Elementary and sec­
ondary education is unique among public benefits. 
Unlike a college education, it is universally available. It is 
mandatory. It is rigidly controlled. Uniformity, rather 
than diversity, is a fundamental goal. Due to this unifor­
mity, as well as the geographically insular nature of 
school districts, courts view faculty, students and staff as 
fungible. This unique characteristic means that in many 
cases racial populations themselves can be readily manip­
ulated.

Consequently, "the Court properly identified the 
freedom-of-choice program in Green as a subterfuge." 
Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 
189, 221 (1973) (Powell, J. concurring and dissenting). If 
school board officials have the ready capability to alter 
racial composition of elementary or secondary schools, by 
manipulation of faculty and student assignment, and 
nonetheless maintain identifiable "black" and "white" 
schools, such schools stand as persuasive evidence that 
the school b.oard actually intends to maintain segregation. 
It was such continuous, obvious and intentional efforts to 
maintain segregation that prompted Green. The Court 
showed impatience with a recalcitrant school board 
which refused to implement feasible and educationally 
sound measures to end state-imposed segregation in a 
two-school system. Green remains a classic example of



41

utilizing available and practical means to insure immedi­
ate integration of schools within an insular school dis­
trict. It does not forbid any unlawful conduct other than 
intentional discrimination.

Indeed, Justice Scalia so explained Green and demon­
strated Bazemore's plain applicability to noncompulsory, 
nonfree public higher education. Justice Scalia observed:

Our analysis in Basemore v. Friday . . . reflected 
our unwillingness to conclude, outside the con­
text o f school assignment, that the continuing 
effects of prior discrimination can be equated 
with state maintenance of a discriminatory sys­
tem. There we found both that the government's 
adoption of "wholly neutral admissions" poli­
cies for 4-H and Homemaker clubs sufficed to 
remedy its prior constitutional violation of 
maintaining segregated admissions, and that 
there were no further obligations to use racial 
reassignments to eliminate continuing effects -  
that is, any remaining all-black and all-white 
clubs. . . . "[HJowever sound Green may have 
been in the context of the public schools," we 
said "it has no application to this wholly differ­
ent milieu."

City of Richmond v. ]. A. Croson Company, 488 U.S. 469, 525 
(1989) (Scalia, J. concurring) (emphasis added).

The foregoing demonstrates that private petitioners 
miss the mark when they deny "principled bases" exist 
on which to distinguish disestablishm ent of state- 
imposed segregation in higher education from elemen­
tary education.29 They misconstrue the "restoration" of

29 The court of appeals properly observed that heeding the 
distinctions is not merely a matter of identifying the proper 
" 'means' of eliminating discrimination." (P.A. 23a-24a)



42

rights to which blacks today are entitled as the result of 
discriminatory practices of another era. Blacks have no 
constitutional right to choose predominantly black uni­
versities with resources comparable to predominantly 
white universities in order to be free of discrimination.3“ 
The position to which blacks are entitled is one of freely 
choosing which institution to attend and freely compet­
ing for admission without consideration of their race. 
Whites today enjoy no greater rights.

Petitioners further erroneously equate continued 
"racial identifiability" of universities at which genuine 
nondiscriminatory policies prevail to the "continuation" 
of the de jure system. There is no constitutional right to 
any particular racial mix or constitutional obligation to 
redress racial identifiability resulting from individual 
choice. Pasadena City Board of Education v. Spangler, 427
U. S. 424, 434, 436 (1976). Racial identity alone is not 
unconstitutional even in elementary education. Id.; Swann
V. Charlotte-M ecklenburg Board of Education, 402 U.S. 1, 
24-26 (1971). Bazemore precludes private petitioners' iron­
clad presumption that past discrimination alone causes 
an unlawful present racial configuration.

Moreover, private petitioners' belated attempt at the 
end of their brief to distinguish Bazemore is unavailing. 
Their advancement here of purported "remedial possi­
bilities" while none were allegedly urged in Bazemore

30 The court of appeals' opinion includes a devastating 
rejection of the notion of alleged institutional rights inherent in 
petitioners' resource contentions. (P.A. 28a, 37a) The district 
court's similar observations are equally poignant. (P.A. 
190a-91a) The United States itself appropriately concedes there 
is no constitutional duty to correct institutional disparities or 
to expend efforts toward making the predominantly black uni­
versities "equal." (U.S. Brief at 32-33) Little else need be said.



43

skirts the threshold liability determination of whether a 
constitutional violation exists. The issue in Bazernore was 
clearly whether the implementation of nondiscriminatory 
policies was sufficient, not whether reasonable additional 
actions could be implemented to alter racial identi- 
fiability. Nor can Bazernore be avoided by asserting higher 
education is more im portant than extension clubs. 
Bazernore makes no constitutional differentiation accord­
ing to perceived value of the state-sponsored activity and 
no other decision of this Court suggests such a sliding 
s c a le .P e t i t io n e rs '  third purported basis for distinguish­
ing Bazernore concedes applicability of the Bazernore legal 
standard and merely raises factual questions rejected by 
both lower courts.

The United States apparently feels obliged to differ 
with the court of appeals on the scope of Mississippi's 
duty. Unable to disavow Bazernore and aware of the inap­
plicability of Green, the United States disingenuously 
articulates its suggested hybrid standard: remove "rem­
nants" which "fetter free choice by race." There is no 
factual basis whereby the United States can self-servingly 
ignore the court of appeals and district court findings 
that "real freedom of choice" exists. Genuine non­
discriminatory policies by their very definition do not 
impermissibly fetter choice by race.

31 The court of appeals properly identified this relativistic 
contention "as an improper 'hierarchy of values,' " and aptly 
described "such a hierarchy [as] purely subjective, impossible 
to apply, and not founded on the Constitution." (P.A. 23a)



44

There may be a case in which it would be appropriate 
to prohibit a state from, in fact, continuing to fetter choice 
by race. This is not such a case.^^

To the extent the United States poses a different legal 
standard than the court of appeals, the Government nec­
essarily misconstrues both Bazemore and Green. In the 
teeth of its own acknowledgment that the Bazemore stan­
dard centering upon the discontinuation of prior discrim­
ination and adoption of race-neutral policies applies (U.S. 
Brief at 29), the United States asserts that something more 
is nonetheless required here to assure choice is not fet­
tered by race. The Government draws on Green to impose 
an obligation beyond Bazemore to assure choice is "real" 
even though it acknowledges Bazem ore specifically  
refused to so extend Green to a traditionally noncom- 
pulsory arena. Despite Bazemore's obvious preoccupation 
with nondiscriminatory admissions in a traditional 
"choice setting," the United States argues for a "collec­
tive" interpretation of Bazemore and Green based upon 
Green's understandable insistence that an atypical "free­
dom of choice" plan "merely begins the inquiry.''^^ Such

32 Again, the district court examined the evidence on this 
basis: "While student enrollment and faculty and staff hiring 
patterns are to be examined, greater emphasis should instead 
be placed on current state higher education policies and prac­
tices in order to insure that such policies and practices are 
racially neutral, developed and implemented in good faith, 
and do not substantially contribute to the continued racial identi- 
fiability of individual institutions." (P.A. 177a) (emphasis added).

33 The district court's joint reading of Green and Bazemore 
far better explains their relative applicability; "The court per­
ceives no inconsistency with respect to the Supreme Court 
decisions Green and Bazemore and the ASTA decision. These 
decisions stand in harmony for the proposition that the scope

(Continued on following page)



45

posturing by the Government over the significance of 
alleged "discriminatory effects" is not just inconsistent 
with ju stice  Sca-lia's authoritative interpretation of 
Bazemore. It is ultimately at odds with the Court's plain 
recognition that Bazemore holds the "mere existence of 
single-race clubs in [the] absence of evidence o f exclusion 
by race cannot create a duty to integrate." City of Rich­
mond, 488 U.S. at 503.

Similarly, the United States' concluding assertion that 
"the mandate of the Equal Protection Clause is met once 
[there is] no discriminatory prompting from the State" is 
wholly unsatisfactory. The Constitution, and Bazemore, of 
course say nothing about discriminatory "prompting." It 
is discrimination which is prohibited. If "prompting" is 
anything other than present intentional discrimination, 
any attempted judicial identification of it is particularly 
unwarranted in higher education. As emphasized by the 
court of appeals, "universities are not simply institutions 
for advanced education." (P.A. 23a) A purported identi­
fication of "prompting" invites judicial invasion into the 
whole array of "educational policy decisions in which 
courts should not become involved." ASTA, 289 F. Supp. 
at 788. See Board of Curators o f the University o f Missouri v. 
Horowitz, 435 U.S. 78, 92 (1978) (courts being "particularly 
ill equipped to evaluate academic [decisions] warn[s] 
against judicial intrusion"). Particularly is this true when 
the uncontradicted record demonstrates some 15 years of

(Continued from previous page)
of the affirmative duty to disestablish a former de jure segre­
gated system of education is to be defined in accordance with 
the degree of choice individuals enjoy as to whether they wish 
to attend college at all and, if so, which one." (P.A. 175a)



46

genuine nondiscriminatory policies coupled with affirma­
tive good-faith efforts to increase other-race presence.^^ 
The deference due even local elementary school boards 
requires courts not involve themselves in a wide range of 
higher education policy decisions absent compelling cir­
cumstances. See, e.g., Board of Education v. Dowell, f l l  S.Ct.

3‘‘ The State has acknowledged a duty to disestablish state- 
imposed segregation; it has not disputed that the duty initially 
arose without the necessity of petitioner proof of discrimina­
tory purpose as the result of State maintenance of the de jure 
system. But even if Bazemore as construed by the State does not 
control, all actions throughout the 1970's and 1980's by alto­
gether different boards and university officials do not bear a 
presumed discriminatory taint as the result of discriminatory 
acts of the 1950's and early 1960's. Such acts, or even failures to 
act, should not be evaluated absent consideration of evidence 
of purposeful discrimination. Certainly at some point in time 
after years of good-faith nondiscriminatory policies the causal 
nexus between state-imposed separation of the races and racial 
identifiability evaporates or becomes so attenuated as to 
require proof of present intentional discrimination. Otherwise, 
purported constitutional "remedies that are ageless in their 
reach into the past, and timeless in their ability to affect the 
future" improperly result. Wygant v. Jackson Board of Education, 
476 U.S. 267, 276 (1986). See Columbus Board of Education v. 
Penick, 443 U.S. 449, 470-71 (1979) (Stewart, ]., concurring and 
dissenting) (passage of time militates against shifting of nor­
mal burden of proof). Cf. Dowell, 111 S.Ct. at 637-38 (evaluation 
of good faith of school board over time). Such considerations 
make the United States' call for the elimination of discrimina­
tory "prompting" all the more unsatisfactory and private peti­
tioners' demand for the total restructuring of the system 
because of institutional differences even more intolerable.



47

630, 637-38 (1991); Dayton Board of Education v. Brinkman, 
433 U.S. 406, 410 (1977).3s

Stripped of all pretense, the United States' own asser­
tion must be construed to acknowledge that the duty to 
disestablish is fulfilled by the cessation of prior discrimi­
nation and implementation of nondiscriminatory poli- 
cies.3^ The record here overwhelmingly establishes State 
fulfillment of this legal duty.^^

35 Similarly, First Amendment considerations are not irrel­
evant. Assuming of course the existence of nondiscriminatory 
polices, universities are to remain free "to determine on aca­
demic grounds who may teach, what may be taught, how it 
shall be taught, and who may be admitted to study." Sweezy v. 
New Hampshire, 354 U.S. 234, 263 (1956) (Frankfurter, ]., concur­
ring). See Regents of the University of California v. Bakke, 438 U.S. 
265, 311-12 (1978) (academic freedom "long a special concern" 
of First Amendment). Nor should the Court wholly ignore First 
Amendment rights to freedom of association.

36 Indeed, the United States was the major advocate of the 
position adopted by the Court in Bazemore. The United States 
urged rejection of Green because of the absence of state-dic­
tated attendance. Bazemore, 478 U.S. at 416. Not surprisingly, 
shortly after Bazemore the United States is similarly on record 
in systemwide higher education desegregation litigation that 
"higher education is a voluntary activity [and] a state satisfies 
the Constitution by putting an end to discriminatory practices, 
and has no obligation to eliminate the vestiges of past discrimi­
nation." The United States specifically maintained "the state 
[has] no compelling interest in embarking on additional reme­
dial action after it ]has] established 'neutral admissions stan­
dards.' " Geier v. Alexander, 801 F.2d 799, 804 (6th Cir. 1986).

37 The United States references Judge Higginbotham's spe­
cial concurrence and dissent at the end of its brief. (U.S. Brief 
at 41) The Government alleges that if the lower courts had 
"answered the right question" they would have discovered 
"discriminatory remnants." Yet when the United States itself

(Continued on following page)



48

B. The district court's finding that the continued 
racial identifiability of Mississippi universities 
persists today as the result of free and unfet­
tered choice of students and personnel is not 
clearly erroneous.

The district court scrutinized the substantial evidence 
of M ississippi's  genuine nondiscrim inatory polices 
accompanied by good-faith affirmative efforts to encour­
age integration. It found that such policies have been 
administered by a governing board which is 25% black 
and on which blacks have assumed leadership roles. (P.A. 
166a-68a) It unhesitantly concluded that the State has 
implemented race-neutral polices and substantial affirma­
tive efforts with respect to student admission and recruit­
ment, faculty employment, and resource allocation. (P.A. 
201a) The district court specifically found Mississippi 
students possessed a "free and unfettered choice" of a 
public university. (PA. 187a) The en banc court of appeals

(Continued from previous page)
writes the "question" it only purports to identify two alleged 
"remnants," neither of which can be properly characterized as 
vestiges as explained below.

Moreover, with all due respect Judge Higginbotham's 
reading of Bazemore is hollow. (P.A. 40a) It ignores the basis 
upon which this Court found genuine choice to exist despite 
widespread racial identifiability. Bazemore held the State had 
"discharged its duty to undo its wrong" by discontinuing prior 
discrimination and adopting race-neutral polices. Judge Hig­
ginbotham improperly suggests a timeless continuum of judi­
cial evaluation of the "effects" of state action on continued 
racial identifiability not contemplated by Bazemore. (P.A. 42a) 
Judge Higginbotham also unjustly accuses the lower courts of 
"denying any notion of perpetuation." (P.A. 43a) Both lower 
courts found Mississippi's genuine nondiscriminatory policies 
do not contribute to any continued racial identifiability.



49

also weighed the record carefully in its affirmation of the 
district court. The appellate court likewise concluded "all 
students have real freedom of choice." (P.A. 2a, 27a) The 
United States does not challenge a single district court 
student enrollment or personnel employment factual 
finding concerning the genuineness and substantiality of 
State race-neutral and affirmative action policies apart 
from admission standards. Private petitioners likewise 
say nothing about student recruitment practices apart 
from their admission standards contentions.

1. The nondiscriminatory, educationally rea­
sonable current admission standards are not 
the cause of any continued racial identi- 
fiability of universities.

"The current admission policies and procedures, 
including the particular use to which the ACT assessment 
is put, were not adopted for racially discriminatory pur­
poses and are reasonable, educationally sound, and 
racially neutral. . . . Although the various institutions 
continue to be identifiable by the racial makeup of the

3® Private petitioners do include within their shotgun 
attack, however, assertions concerning employment at the pre­
dominantly white universities and treatment of blacks at the 
University of Mississippi. Such contentions have received the 
attention of two courts. The compelling statistical evidence of 
affirmative action in the faculty hiring process and overall 
parity in the labor force together with abundant evidence of 
genuine substantial affirmative employment recruitment 
efforts are simply insurmountable, (supra at 16-18) The selected 
individual and for the most part unwarranted complaints at 
the University of Mississippi do not rise to any semblance of 
"official" action, particularly in light of the substantial evi­
dence of university policy and efforts to the contrary, (supra at 
10, n.6)



50

student populations, this is not a substantial result of 
current admission practices and procedures but is instead 
the result of a free and unfettered choice on the part of 
individual students." (P.A. 187a) These determinative dis­
trict court factual findings are unassailable. The United 
S ta tes  e rro n e o u sly  a sse r ts ,  how ever, the B o ard 's  
mid-1970's actions "only formalized" a 1961 discrimina­
tory standard. Despite having been twice rejected, private 
petitioners still specifically allege intentional discrimina­
tion. Private petitioners' depiction of lower court evalua­
tion of the State's 1976 and subsequent admission actions 
as "totally arbitrary" is, however, itself completely 
unfounded. The contention that just because the State's 
original use of the ACT long ago may have been rooted in 
discrimination mandates a finding that today's admission 
standards implemented under totally different circum­
stances are intentionally discriminatory is clearly wrong. 
Both lower courts satisfied Hunter v. Underwood, 471 U.S. 
222 (1985), to the letter. (P.A. 32a-33a, 178a-85a)

Nor may the United States presumptuously depict 
the State's present use of the ACT as a "remnant" or 
"vestige" of the de jure system. The record and lower 
court findings belie any assumption that the ACT is used 
today because it was utilized in 1961. Indeed, the proof 
obliterated any causal nexus between present admission 
policies and those of the "Meredith era." Altogether dif­
ferent boards have confronted altogether different cir­
cumstances and acted for altogether different reasons. (T. 
3550-75, J.A. 1717-29; P.A. 8a-9a, 179a; supra at 13-16) 
Whatever the definition of a "vestige" may be, where all 
substantive links are destroyed a present condition can­
not be termed an impermissible "effect" of the distant 
unconstitutional past.



51

The United States' challenges of the present admis­
sion standards beyond its incorrect vestige characteriza­
tion are equally erroneous. The record flatly contradicts 
any assumption that the presently lower admission stan­
dards at the predominantly black universities are respon­
sible for their "racial identifiability." More white students 
receive ACT scores between 9 and 14 than black students. 
(supra at 15-16) Further, before taking the ACT, students 
indicate their college preferences or "choices"; black stu­
dents do not on any statistically significant basis first 
choose to attend a predominantly white university and 
subsequently switch to a predominantly black university 
after scoring below 15. (T. 4225-32, J.A. 1857-61) More­
over, virtually all black applicants to the predominantly 
white universities are admitted.-’® (supra at 15)

Dothard v. Rawlinson does not dilute the significance 
of such proof. The "automatic admission" challenge is a 
very narrow one. It just applies to students scoring 13 or 
14, for "automatic admission" results at the predomi­
nantly black universities only for students scoring 13 or 
above. (Exh. Bd-183A, J.A. 1188-95) The record precludes 
any inference that "self-recognized inability" to meet the 
automatic admission criteria, as contrasted with the

Private petitioners' allegations of inadequate publica­
tion of the exceptions policies are inconsequential. The three 
comprehensive universities set forth the exceptions policies in 
their university catalogs. (Exh. US-818 at 4, US-821 at 44, 
US-920 at 21) Delta State University, while omitting the "high 
risk" exception in its bulletin, affirmatively contacts each stu­
dent scoring below 15 who expressed an interest in the univer­
sity before taking the ACT. (Exh. US-967 at 66-69, J.A. 800-02) 
Private petitioners' assertion of course ignores the thousands 
of students admitted since 1977 with scores below 15. (Exh. 
Bd-173, Bd-174)



52

overall admission standards, contributed to alleged dis­
proportionate failure of blacks to apply to the predomi­
nantly white universities. Thousands of students have 
been admitted to all eight universities over the years 
under exceptions to "automatic" admission polices. Pri­
vate petitioners similarly attribute the failure to apply to 
students taking the ACT more than once. To the extent 
such speculation is even entertained, students obviously 
take the ACT again to achieve a higher score, and there is 
no basis to infer that the level of the first score, partic­
ularly the 13 or 14, discourages application to a predomi­
nantly white university.'^f*

Petitioner criticism of the exceptions to the threshold 
admissions requirements as "limited" is also misplaced.

No inference of discrimination can be drawn from the 
present existence of different test score requirements at the 
predominantly black and predominantly white universities. 
Apart from the proof that score requirements are not respons­
ible for racial identifiability, petitioners ignore where predomi­
nantly black universities once stood and the dramatic progress 
made to date. The Board elected at the time of initial imple­
mentation in 1976 not to require the otherwise patently reason­
able 15 because it posed a substantial risk of catastrophic 
decimation of then existing student enrollment at the predomi­
nantly black universities. At the same time, however, the Board 
and universities immediately moved toward the necessary 
increase in admission standards. Alcorn State University 
moved in steps from the 9 to a 13 and though not yet achieved 
once projected a 15. The Board's 1981 mission statement specif­
ically emphasizes the necessity that Jackson State University 
decrease participation by "marginal students"; Jackson State 
University has gradually moved from the 9 to a 13 with projec­
tions of moving still higher. Mississippi Valley State University 
has moved from the 9 to a 13. (P.A. 123a-25a; T. 3564-66; Exh. 
Bd-179, Bd-274; Exh. US-849, US-851, US-852, US-960 at 102-10, 
113-114, US-961 at 89-90)



53

First, the United States bases its contention upon its 
erroneous "rem nant" characterization of the present 
admission policies. Second, the attack advocates admis­
sion of substantially greater numbers of students scoring 
below the indisputably modest 15. Yet this assertion runs 
directly contrary to the recognized justification for the 
1976 adoption of the 15 in the first place. An adoption of 
the 15 did not alleviate university problems with poorly 
prepared students. Universities should be permitted to be 
universities. Courts should not nullify the modest "certi­
fication of credentials" represented by the 15. (supra at 
11-16)

The misleading contentions that a standard for auto­
matic admissions incorporating both high school grades 
and the ACT would better serve the State's interests are 
also incorrect. The mere prediction of a probability that 
students with low ACT scores may obtain a passing grade 
is not the total educational p i c t u r e .M e r e  passage in 
college does not insure quality graduates or productive 
citizens. The level of university  instruction being 
afforded has been a constant issue. Utilizing present

‘‘i Amazingly, private petitioners even challenge the 
State's use of an ACT score of 9. The State does not argue that 
students at such a low level of academic development may not 
one day be highly productive citizens. Yet it should go without 
saying that students at such low levels are not presently pre­
pared for university level instruction.

'•2 It also should be recognized that there is no assertion 
that the ACT is "racially biased." Petitioners' own expert 
acknowledged it is "well known" the ACT predicts as accu­
rately for blacks as for whites; ACT's comprehensive research 
is to the same effect. (T. 1931; Exh. Bd-189) It is undisputed that 
the ACT is a reasonable measure of the test taker's, whether 
black or white, present level of academic development.



54

student performance in college as the only basis for eval­
uating admission standards would be a circuitous exer­
cise precluding any student quality improvement. The 
Board and Mississippi citizens have a substantial, legiti­
mate educational interest in continually striving toward 
raising educational expectations at every stage of the 
process as mandated by the Department of Education's 
Nation at Risk: The Imperative for Educational Reform^^ 
(supra at 16)

Moreover, the "success" of ill-prepared students 
reflects the universities' efforts -  and expenditure of 
resources -  to retain every student who enrolls. Low 
achieving students are carefully selected based upon mul­
tiple cognitive and noncognitive criteria. They then 
receive inordinate attention through costly remedial and 
developmental programs. Even though the record indi­
cates such actual enrollment would not occur, admission 
of any appreciable number of students with ACT scores 
below 15 would necessitate substantial remedial educa­
tion. Again, it plainly is not educationally feasible or 
desirable for universities, particularly the major doctoral 
universities, to maintain such expensive programs on a 
widespread b a s i s . ( P . A .  124a; supra at 14)

43 Further, the State's data correlating ACT scores and 
freshman grade point averages indicates that ACT scores 
greater than 15 are needed at the comprehensive universities 
for there to be a genuine probability of obtaining the modest 
2.0 grade average. (Exh. Bd-275; Exh. US-900a, 900d, 9001, 
900m, 900n)

44 This reality is of course also true for the predominantly 
black universities. As previously recognized, the commitment 
there is to raise the ACT standards. The problem should not be 
compounded by a lowering at the predominantly white univer­
sities.



55

Nor is petitioners' suggestion that a less discrimina­
tory, more effective admission standard can be feasibly 
implemented supported by petitioners' own proof. The 
global assertion that other states use grades is certainly 
not sufficient.45 Petitioners' testing expert declined to 
enter the real world of actual admissions policies prefer­
ring instead to criticize unreasonably any use of a "cut 
score." He never broached the ultimate issue of educa­
tional reasonableness of the admissions standards. Such 
consideration by his own admission "gets into a lot of 
other things." (T. 1921-28)4<>

45 States that use grades no doubt generally combine rela­
tively high grades with such modest scores as a 15, if such low 
achieving students are automatically admitted at all. (T. 328-31) 
Mississippi should not be penalized for having no grade aver­
age requirement. Indeed, petitioners' own witness Dr. Elias 
Blake, president of the predominantly black Clark College and 
an active spokesman in higher education desegregation litiga­
tion, testified to utilization of the SAT equivalent of a 15 and a 
2.0 grade average to define the "automatic" admission pool at 
his institution. (T. 2053-54, J.A. 1551-52) See College Entrance 
Examination Board, The College Handbook 1991, 28th Ed. (e.g., 
historically black Florida Agricultural and Mechanical, 19 ACT 
(or 900 SAT) and 2.5 high school GPA; Florida State University, 
25 ACT (or SAT of 1040)).

46 The United States' hypothetical suggestion is in any 
event of no practical significance in Mississippi. As discussed 
above, students scoring as low as 9 are already eligible for 
admission. Grades and other criteria are already being used. 
Any emphasis upon "automatic" as opposed to exceptional 
admission is illusory. Nor should petitioners be heard to argue

(Continued on following page)



56

Ultimately it must be recognized that blacks dispro­
portionately qualify for admission to universities because 
they disproportionately appear at lower levels of aca­
demic development upon graduation from high school. 
This regrettable circumstance cannot be laid, however, at 
the doorstep of public higher education. The socio­
economic causes are multifaceted. Attempting to remedy 
these causes here would erroneously far exceed the scope 
of the alleged constitutional violation of respondents in 
this proceeding. E.g., Milliken v. Bradley, 433 U.S. 267, 282 
(1977). A higher education system is under no legal oblig­
ation to "compensate" for infirmities at the elementary 
and secondary school levels or for other circumstances 
beyond its reasonable control. United States v. LULAC, 793 
F.2d 636, 649 (5th Cir. 1986).47

(Continued from previous page) 
that use of a lower ACT would not constitute a lowering of 
standards. The developmental education probabilities have 
been noted. Petitioners themselves relied upon the ACT scores 
of students enrolled as a major criterion of institutional quality. 
(T. 131, |.A. 1321) Students, parents, educators, employers and 
the public at large unquestionably view them no differently.

It is not insignificant, however, that the State does pro­
vide additional educational opportunities for the high school 
graduate not yet academically prepared for a university experi­
ence. More students attend the junior colleges than the univer­
sities. As many students transfer from the junior colleges to 
predominantly white University of Southern Mississippi as 
enroll as first time freshmen and Delta State University's junior 
class is substantially larger than its freshman class due to 
transfers, including significant numbers of students from a 
predominantly black junior college. The other universities 
recruit the junior colleges as well, {supra at 12) The district 
court understandably found that the transfer procedure is "not 
unreasonable or unduly burdensome." (P.A. 133a)



57

2. The educationally reasonable assignment of 
missions and allocation of resources are not the 
cause of any continued racial identifiability of 
the universities.

The importance and prevalence of diversity in higher 
education are undisputed. The educational reasonable­
ness of the present missions of Mississippi's eight univer­
sities is not contested. Jackson State University's status as 
the State's only urban university possessed of a more 
comprehensive mission than either Delta State University 
or Mississippi University for Women is conceded. Private 
petitioners cannot dispute the absence of any racial cor­
relation in resources among Alcorn State University, 
Delta State University, Mississippi University for Women, 
and Mississippi Valley State University, the State's four 
regional universities, (supra at 20-21, 27) The relative 
underfunding of the State's three comprehensive, pre­
dominantly white universities, when compared to other 
states' comprehensive universities, is uncontroverted. 
The relative overfunding of the States's noncomprehen- 
sive universities, three of which are predominantly black, 
on a peer basis is likewise unchallenged, (supra at 22)

Nonetheless, petitioners still maintain an unlawful cor­
relation exists between racial identifiability and resources. 
The State disputes altogether the relevance of institutional 
differences in a statewide system of public higher education 
which maintains genuine nondiscriminatory admissions and 
operational policies, (supra at 41-42) But if relevant, 
this controversy does not focus upon whether students in 
some measure select a university based upon anticipated 
program of study or even according to physical facilities. 
Rather, the threshold question is whether the State's allo­
cation of institutional resources causes present institu­
tional racial identifiability. Even a Green approach



58

to higher education would require some showing that the 
addition or reallocation of resources offers a realistic and 
meaningful prospect of altering racial identifiability. No 
such showing exists on this record.

Private petitioners, but not the United States, purport 
to rationalize their challenge of resource allocations to the 
predominantly black universities with two hypotheses: (i) 
the alleged deficient resources inhibit desegregation; and 
(ii) the alleged inadequate resources deprive blacks at 
these institutions of equal educational opportunities. The 
first assertioh is essentially that the predominantly black 
universities are predominantly black today because of 
resources. The supposition is that substantial institutional 
enhancement would materially alter the present racial 
identifiability of the predominantly black universities. Yet 
there is no demonstrable relationship in this record 
between resources and racial presence. There is no basis 
to infer that institutional resources affect blacks' choices 
any differently than they do whites' choices or vice- 
versa.

Private petitioners' allegations of denial of "equal 
educational opportunity" arise from fundamental misap­
prehensions of the term's meaning in the context of pub­
lic higher education. Petitioners define equal educational 
opportunity not just in the context of uniformly available 
alternatives but rather according to perceived benefits 
derived after the exercise of choice. Petitioners approach 
equal educational opportunity not simply in the context

Louisiana's experience likewise irrefutably demon­
strates the total fallacy in the assertion that enhancement of the 
predominantly black institutions offers any hope of a material 
change in racial composition. (Brief Amici Curiae Charles E. 
"Buddy" Roemer, HI, et al. at 20-24)



59

of participation in the statewide system but according to 
privileges available at the particular institutions selected. 
"Differences" in institutional resources may result in a 
"different" educational experience just as a host of non­
resource factors may affect the educational experience. 
The experience at a smaller university may be better or 
worse than at a larger university. {See Exh. Bd-459, J.A. 
1284-85) It is incongruous indeed for plaintiffs to even 
suggest that after a student makes his or her choice the 
student may constitutionally expect "the same" programs 
and facilities available at another university which would 
have been received had he or she first elected to attend 
the other institution. Petitioners are obviously asserting a 
nonexistent constitutional right.

Further, petitioners' "equality of opportunity" argu­
ment, when even modestly extended, yields absurd 
results. For example, the students at predominantly white 
Delta State University and Mississippi University for 
Women under such an approach are subjected to 
"unequal educational opportunities" as contrasted with 
those students not just at the predominantly white com­
prehensive universities but also at predominantly black 
Jackson State University. Students at predominantly black 
Jackson State University are simultaneously "preferen­
tially treated" vis-a-vis predominantly white Delta State 
University and Mississippi University for Women but 
"discriminated against" when compared to the predomi­
nantly white comprehensive universities. Substantial 
numbers of blacks of course attend the "resource supe­
rior" predominantly white comprehensive universities 
and benefit from the same alleged institutional favoritism 
which allegedly "discriminates against" other black stu­
dents who attend the predominantly black universities.



60

What petitioners obviously have done is stand the salutary 
principle of diversity in higher education on its head.

The United States' challenge of the allocation of 
resources focuses solely upon allegations of "unnecessary 
program duplication." It again invokes its own four-part 
"remnant" analysis in contending allegedly unnecessary pro­
gram duplication impermissibly perpetuates segregation. 
The mere suggestion that the elimination of "unnecessary 
program duplication" will materially alter racial identi- 
fiability is meritless. The present program structure in Mis­
sissippi does not impermissibly fetter choice by race, and the 
United States' purported analysis is deficient in every 
respect.

The United States again makes an unwarranted assump­
tion concerning what constitutes a vestige of state-imposed 
segregation in higher education. It advances the beguiling 
notion that program "duplication" was a central element in 
the de jure system to then argue continued duplication is a 
remnant of the past. This assertion distorts the threshold 
constitutional violation. It was not the "equality" of univer­
sities, to the extent it even arguably existed, that Brown 
struck down. Rather, it was of course the state-imposed 
separation of the races that Brown condemned. The blanket 
inference that program duplication today is a "vestige," or 
"remnant," is no more appropriate than depicting the uni­
versities themselves as vestiges for elimination.

Particularly is this true on this record. It is undis­
puted that no pattern of "unnecessary program duplica­
tion," even as illogically defined by petitioners, exists 
premised upon the racial identifiability of universities. 
Indeed, the three predominantly black universities are 
actually duplicated less than any other group of three 
noncomprehensive universities, (supra at 26) Where the



fal
program duplication among predominantly white univer­
sities is similar to, or even greater than, that between pre­
dominantly white and predominantly black universities, no 
substantive link to the former dual system can be inferred.

Likewise, the United States' assertion that State toler­
ance of duplicative programs sends a message affecting 
choice by race is unfounded. The availability of duplica­
tive program choices among comprehensive and noncom- 
prehensive universities situated throughout the State, 
regardless of racial characteristics, sends no racial mes­
sage. Moreover, there is no credible proof of even the 
alleged extent to which unnecessary program duplication 
supposedly impedes desegregation. The United States 
does not challenge program duplication in the core arts 
and sciences. The import of the United States' utterly 
unrealistic definition of "unnecessary" program duplica­
tion also must be recognized: virtually all of the alleged 
unnecessary program duplication between the predomi­
nantly black and predominantly white universities is in 
the areas of business and education. (Exh. US-482, Tables 
2 & 4, J.A. 221-39; T. 274-77, J.A. 1338-39) It is patently 
unreasonable to suggest that universities in the 1990's 
must wholly abandon such disciplines, i.e., not offer a 
single business or education course, to avoid "unnecess­
ary" duplication. S e e  Exh. Bd-263 Chapter II at 4-5, 8-9

The United States' assertion that program duplication at 
off-campus centers maintains racial identifiability is wrong. 
The State long ago mooted allegations that it perpetuated such 
"duality," so much so that the United States selectively limited 
its off-campus proof to the pre-1981 period. (P.A. 146a-50a; 
supra at 28, n.22) Yet the comprehensive universities' virtual 
abandonment of the challenged degree-granting centers has 
not yielded an appreciable increase in white enrollment at 
Jackson State University or Alcorn State University.



62

(explaining educational reasons for business and educa­
tion "duplication" in Mississippi).

The United States misconstrues the district court's 
findings concerning unnecessary program duplication. 
The district court did state at one point that "unnecessary 
program duplication by Delta State and Mississippi Val­
ley State . . . cannot be justified economically or in terms 
of providing quality education/' (P.A. 146a) but such 
language does not warrant the United States' characteriz­
ation of the judicial finding as "program duplication 
serves no useful educational purpose." (U.S.Brief at 40) 
The bases for the district court's findings of unnecessary 
program duplication must be heeded. "In assessing the 
amount of unnecessary program duplication," the district 
court first carefully stated its findings "disregard[edj 
institutional mission and demand for programs." (P.A. 
144a) The district court thereby acknowledged that pro­
gram existence may be fundamental to institutional integ­
rity even though it duplicates programs elsewhere.™ 
Thus, the district court's comments reflect a more 
general concern regarding the number of universities, 
predominantly white and predominately black, com­
peting for scarce resources. (P.A. 200a)si Indeed, the

™ This critical finding is obviously not clearly erroneous 
as the United States made no pretense of approaching the issue 
from this essential educational perspective, (supra at 25-26) The 
State, however, did offer such proof confirming efforts to 
reduce all educational unnecessary program duplication to the 
extent educationally feasible, (supra at 23-24)

5’ Of course no party seeks and the Constitution does not 
require closure of any institution. As already emphasized, 
however, such a complicated educational and political issue 
does manifest the necessity of full applicability of Bazemore to 
public higher education. It strongly counsels against judicial

(Continued on following page)



bJ

district court otherwise specifically concluded with respect to 
program duplication that "there is no proof that the elimina­
tion of unnecessary program duplication would be justifiable 
from an educational standpoint or that its elimination would 
have a substantial effect on student choice." The district 
court further similarly found "there is no showing in this 
case that the elimination of unnecessary programs within the 
system of higher education in Mississippi would be feasible, 
educationally reasonable, or would offer any hope of sub­
stantial impact on student choice." (P.A. 194a)

Finally, it is amazing that the United States, not even 
having attempted to prove it, suggests that elimination of 
"unnecessary program duplication" in Mississippi would 
have an effect on the alleged racial identifiability of uni­
versities. Educational opportunities, public and private, 
are simply too diverse to entertain the fiction that elim­
ination or merger of the relatively few arguably "nones­
sential" programs will have any material desegregative 
result. The district court correctly observed that "the 
experience of other courts assessing the relative impact of 
the elimination of unnecessary programs between histori­
cally white and historically black institutions indicates 
that elimination of such programs would have little 
impact."52 (RA. 194a)

(Continued from previous page) 
involvement in those questions which should be debated in the 
public domain outside the jurisdiction of "ill-equipped" courts. 
(supra at 45-47)

52 See Artis v. Board of Regents, No. CV 479-251 at 9 (S.D. Ga. 
Feb. 2, 1981) (racially identifiable institutions in same city but over 
80% of affected students still went elsewhere); Report on Success of 
Merger of University of Tennessee at Nashville and Tennessee State 
University (Brief Amici Curiae Charles E. "Buddy" Roemer, III, et 
al. at 27a-34a) (merger ordered, due to failure of joint, cooperative, 
and exclusive program planning, itself unsuccessful; see Geier v. 
Blanton, 427 F. Supp. 644, 654-56 (M.D. Tenn. 1977)).



64

II. The duty to disestablish state-imposed segregation 
in higher education is no greater under Title VI 
than under the Constitution. In any event the State 
of M ississippi has fulfilled any alleged greater 
duty under Title VI through the adoption and years 
of implementation of genuine nondiscriminatory 
p o l ic ie s  coupled  w ith su b s ta n t ia l  a f f irm ativ e  
efforts to promote desegregation.

It is undisputed that Title VI of the Civil Rights Act 
of 1964 "proscribes only those racial classifications that 
would violate the Equal Protection Clause or the Fifth 
Amendment."53 University of California Regents v. Bakke, 
438 U.S. 265, 287 (1978). See Alexander v. Choate, 469 U.S. 
287, 292-93 (1985). Consequently, "proof of invidious pur­
pose is a necessary component of a valid Title VI claim." 
Guardians Association v. Civil Service Commission of City of 
New York, 463 U.S. 582, 642 (1983) (Stevens, J. dissenting). 
This same standard applies to petitioners' assertions of 
the Department of Education Title VI regulation, 34 C.F.R. 
§ 100.3(b)(6)(i).54 An administrative agency may not pro- 
mulgate regulations that "go beyond the purpose" of the 
enabling statute. Guardians, 463 U.S. at 613 (O'Connor, J. 
concurring). As already explained, any evaluation of the 
alleged presence of "effects of prior discrimination" must

53 The United States specifically states "Mississippi's 
obligation to dismantle its racially dual system of higher edu­
cation is the same under both Title VI and the Equal Protection 
Clause." (U.S. Brief at 42) Apart from contending the asserted 
regulation was "promulgated pursuant to 42 U.S.C. § 2000d-l," 
private petitioners never cite the statute.

54 The United States argues that this same Constitutional 
standard requires "affirmative steps to remove remnants." Pri­
vate petitioners maintain that this regulation requires not just 
admission policy changes but substantial institutional enhance­
ment of the predominantly black universities.



t>:j

consider first whether evidence exists of present mainte­
nance of a discriminatory system.

The court of appeals correctly concluded Bazemore 
controls the Title VI inquiry. (P.A. 26a) Despite the contin­
ued existence of single-race clubs, the State's efforts in 
Bazemore satisfied affirmative action demands of regula­
tions. 478 U.S. at 408-09. The "affirmative action" regula­
tion considered in Bazemore is identical to the one cited by 
petitioners:

In administering a program in which the recip­
ient has previously discriminated against per­
sons on the ground of race, color, or national 
origin, the recipient must take affirmative action 
to overcome the effects of prior discrimination.

Compare 7 C.F.R. § 15.3(b)(6)(i), quoted in Bazemore, 478 
U.S. at 412, with 34 C.F.R. § 100.3(b)(6)(i), cited in peti­
tioners' briefs. The Court specifically held that the State's 
"affirmative action to change its policy and to establish 
what is concededly a nondiscriminatory admissions sys­
tem" satisfied the regulation. 478 U.S. at 409. Stated dif­
ferently, the Court held the State met its regulatory duty

Justice O'Connor's specific view in Guardians that the 
Title VI regulations, like the statutes, "proscribe only purpose­
ful discrimination" was admittedly not the opinion of a major­
ity of the Court. Justice O'Connor's opinion was shared, 
however, by then Chief Justice Burger, Justice Powell, and 
Chief Justice Rehnquist. More importantly. Guardians did not 
address the particular regulation or issue before this Court. A 
regulation requiring a particular degree of racial mixing would 
be inconsistent with the Constitution and beyond regulatory 
bounds. The imposition of an affirmative duty to act according 
to race absent a showing of present intentional discrimination, 
or even present state actions which materially contribute to 
racial separation, cannot be said to "reasonably further the 
purposes" of the statute "proscribing only intentional discrimi­
nation."



66

by implementing good-faith, race-neutral policies and 
procedures which both lower courts here have found 
prevail in Mississippi. Clearly, the Court concluded the 
regulation imposed no burden upon the State to change 
choice or actively promote integration beyond the imple­
mentation of genuine nondiscriminatory policies.

The United States necessarily agrees. After all, it was 
the Government's position of "full regulatory compli­
ance" that the Court adopted in Bazemore. Nonetheless, 
the United States reargues its "remnant" contentions. It 
contends that "while the adoption of a nondiscriminatory 
admission policy is sufficient to 'overcome the effects of 
prior discrimination' in the context of 4-H Clubs, more 
may be required" here in public higher education. The 
United States specifically identifies no unlawful continu­
ing "effects." Presumably it is the State's present admis­
sion standards and alleged unnecessarily duplicative 
programs which allegedly constitute "effects of prior dis­
crimination."

Yet this United States position requires no explora­
tion of the scope of "affirmative action" required under 
the regulation. As already explained, neither the present 
admission standards nor the alleged unnecessary pro­
gram duplication are "effects of prior discrimination." The 
"prior discrimination" in issue in this proceeding is the 
segregated de jure system of higher education. The record 
will not permit a conclusion that the State's present use of 
the ACT or tolerance of duplicative programs is an 
"effect" of the separatist policies of that distant era.

Nor is any continued racial identifiability of univer­
sities an "effect" requiring the State to do more than it 
has done. The record establishes that the admission poli­
cies do not contribute to institutional racial identifiability. 
(supra at 14-16) There is no proof of any educationally



67

justified program termination, consolidation or transfer 
which would materially alter racial identifiability. (P.A. 
193a-94a) The United States concedes that the institu­
tional enhancement of predominantly black universities 
will contribute nothing to, and may indeed detract from, 
any alteration of racial identifiability. (U.S. Brief at 32-33) 
The district court's factual findings that the State has 
"undertaken substantial affirmative efforts in the areas of 
other-race student and faculty-staff recruitment and 
funding and facility allocation" are not clearly erroneous. 
The same issue of racial identifiability as an "effect of 
prior discrimination" existed in Bazemore. Since the rela­
tively nominal efforts in Bazemore complied with this 
regulation, Mississippi's multi-million dollar affirmative 
action programs plainly cannot be assailed.

Private petitioners argue for a far broader reading of 
the regulation than does the United States. Thus, they 
again seek relief precluded by Bazemore. Bazemore does 
not even suggest that the regulations require, or even 
permit, the manipulation of resources with no educa­
tional justification and little likelihood of changed racial 
mixes. Bazemore's finding of no discrimination in services 
does not remotely imply that distinctions in resources 
among universities constitutes "discrimination" or a 
remediable "effect."  Private petitioners' procrustean

56 The United States' reference to the "Revised Criteria" is 
meaningless. They are by the United States' own admission not 
binding. Moreover, they are not informative; they materially 
conflict with much of the United States' present position; they 
are even of questionable origin. See Brief Amici Curiae of 
Charles E. "Buddy" Roemer, 111, et al. at 24-30. Furthermore, 
even now the United States does not attempt to explain what it 
is the Criteria allegedly require beyond genuine non- 
discriminatory policies.



68

“results oriented" approach is clearly not contemplated. 
Likewise as in Bazemore, the interpretation of the United 
States, though itself erroneous, nonetheless precludes pri­
vate petitioners' unduly expansive reading.57

Furthermore, nothing in Bazemore suggests "affirma­
tive efforts" were undertaken there to the extent they 
have been here. The district court's analysis of the evi­
dence went far beyond the mere confirmation of State

57 While disputing Bazemore's general applicability private 
petitioners do not specifically argue that Bazemore's delineation of 
the regulatory duty is inapplicable here. Recognizing, however, the 
conclusive effect of Bazemore, Amici Curiae NAACP Legal Defense 
and Educational Fund, Inc., et al. attempt to distinguish Bazemore 
on the facts. While the factual situations obviously differ, Bazemore 
cannot be "factually distinguished."

In their flight from Bazemore, Amici NAACP grossly distort 
the purported distinctions. It is only 20% of black students 
(those with ACT scores below 9) that are automatically denied 
access to a university, both predominantly black and predomi­
nantly white. It is frivolous to suggest that Bazemore addressed 
something other than widespread "racial identifiability"; 
"when judgment was entered there were a great many all-white 
and all-black clubs." 478 U.S. at 407. Actually in Mississippi 
the State is "statistically" approaching at least four racially 
mixed institutions, albeit majority white. Like Bazemore, the 
district court here found "no evidence of discrimination." 
While a laudable social objective shared by the State, "partici­
pation rates" are ultimately of no relevance in a nondiscrimina- 
tory system. Higher education is not just noncompulsory; it is 
not free, the students' level of academic development is criti­
cal, and a wide variety of other factors beyond the control of 
higher education affect whether a student will attend a univer­
sity. The suggestion of additional remedial measures here is 
itself unfounded. In any event Bazemore did not suggest that 
nothing else could arguably be done to attempt to alter racial 
identifiability; the Court held nothing further was required. 
Bazemore in no way implied any improper floating standard 
dependent upon the relative importance of the State activity.



69

adherence to the Bazemore standard through discontinua­
tion of prior discriminatory admission practices and the 
adoption of a "wholly neutral admissions policy." It made 
extensive factual findings addressing motive, effect, and 
the availability of educationally reasonable alternatives 
concerning student admissions and recruitment, faculty 
and staff employment efforts, and resource allocation 
practices. Bazemore cites no "affirmative action" findings 
that approach those existing here.^®

Thus, the court of appeals' comments regarding ful­
fillment of any expanded duty are instructive. The court 
stated: "Under the present record we are not prepared to 
say the defendants have failed to meet the duties outlined 
in the regulations." (P.A. 26a) "[W]e would be reluctant to 
say the defendants have not met their duty even under 
Green." (P.A. 34a) Indeed, what this record reveals as 
portrayed by the evidence, and confirmed by the district 
court's extensive findings, is that the State of Mississippi

58 The district court's now familiar findings could not be 
more explicit. The State has used "every reasonable means" in 
student recruitment (P.A. 187a); there are no additional faculty 
and staff recruitment procedures available for State implemen­
tation which offer any meaningful prospect of greater minority 
presence (P.A. 199a); there is no feasible, educationally reason­
able means of further reducing program duplication which 
"would offer any hope of substantial impact on student 
choice" (P.A. 194a); physical facilities appropriations dispro­
portionately favor the predominantly black universities over 
the past 15 years and no racial institutional pattern exists 
concerning either the amount or condition of facility space 
(P.A. 195a); institutionah funding differences are educationally 
based and unrelated to race except to the significant extent the 
predominantly black institutions have actually been favored 
(P.A. 161a-62a, 196a); and the continued racial identifiability of 
the universities is "the result of a free and unfettered choice on 
the part of individual students." (P.A. 187a)



70

has fulfilled its duty to disestablish under Bazemore, 
Brown, Green, Title VI, and the Title VI regulation.

CON CLUSION

This controversy concerns the extent to which the judici­
ary should inject itself into the wide range of higher educa­
tional policy decisions in order to dictate further integration 
with little prospect that institutional racial identifiability will 
be materially altered. This case comes to the Court almost 30 
years after the admission of the first black student to a 
formerly all white university. It comes over 15 years after its 
filing in the district court. It comes under factual circum­
stances dramatically different from those existing in the era 
which spawned the litigation. The record reveals a new day 
in public higher education in Mississippi. The distant uncon­
stitutional past does not justify judicial usurpation of the 
inherently sensitive, profoundly important realm of higher 
educational policy.

The judgment below should be affirmed.
Respectfully submitted,
M ike M oore 
Attorney General 
State of Mississippi 
P.O. Box 220
Jackson, Mississippi 39205
WiLUAM F. G o o dm an , J r .
(Counsel of Record)
Pau l  H. S teph en so n , III 
W illiam F. R ay 
Special Assistant 

Attorneys General 
PO. Box 650
Jackson, Mississippi 39205 
Counsel for Respondents