SUPREME COURT OF THE UNITED STATES

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Nos. 90-1205 and 90-6588

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UNITED STATES, PETITIONER

90-1205v.

KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.

JAKE AYERS, et al., PETITIONERS

90-6588 v. KIRK FORDICE, GOVERNOR OF MISSISSIPPI, et al.

on writs of certiorari to the united states court of appeals for the fifth circuit

[June 26, 1992]

Justice Thomas , concurring.

I agree with the Court that a State does not satisfy its obligation to dismantle a dual system of higher education merely by adopting race neutral policies for the future administration of that system. Today, we hold that "[i]f policies traceable to the de jure system are still in force and have discriminatory effects, those policies too must be reformed to the extent practicable and consistent with sound educational policies." Ante, at 10. I agree that this statement defines the appropriate standard to apply in the higher education context. I write separately to emphasize that this standard is far different from the one adopted to govern the grade school context in Green v. New Kent County School Bd., 391 U.S. 430 (1968), and its progeny. In particular, because it does not compel the elimination of all observed racial imbalance, it portends neither thedestruction of historically black colleges nor the severing of those institutions from their distinctive histories and traditions.

In Green, we held that the adoption of a freedom of choice plan does not satisfy the obligations of a formerly de jure grade school system should the plan fail to decrease, if not eliminate, the racial imbalance within that system. See id., at 441. Although racial imbalance does not itself establish a violation of the Constitution, our decisions following Green indulged the presumption, often irrebuttable in practice, that a presently observed imbalance has been proximately caused by intentional state action during the prior de jure era. See, e. g., Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526, 537 (1979); Keyes v. School Dist. No. 1, Denver, Colo., 413 U.S. 189, 211 (1973). As a result, we have repeatedly authorized the district courts to reassign students, despite the operation of facially neutral assignment policies, in order to eliminate or decrease observed racial imbalances. See, e. g., Swann v. Charlotte Mecklenburg Board of Ed., 402 U.S. 1, 22-31 (1971); Green, supra, at 442, n. 6.

Whatever the merit of this approach in the grade school context, it is quite plainly not the approach that we adopt today to govern the higher education context. We explicitly reject the use of remedies as "radical" as student reassignment — i.e., "remedies akin to those upheld in Green." Ante, at 10, n. 4; see also ante, at 9. Of necessity, then, we focus on the specific policies alleged to produce racial imbalance, rather than on the imbalance itself. Thus, a plaintiff cannot obtain relief merely by identifying a persistent racial imbalance, because the district court cannot provide a reassignment remedy designed to eliminate that imbalance directly. Plaintiffs are likely to be able to identify, as these plaintiffs have identified, specific policies traceable to the de jure era that continue to produce a current racial imbalance. As a practical matter, then, the district courts administering our standard will spend theirtime determining whether such policies have been adequately justified — a far narrower, more manageable task than that imposed under Green.

A challenged policy does not survive under the standard we announce today if it began during the prior de jure era, produces adverse impacts, and persists without sound educational justification. When each of these elements has been met, I believe, we are justified in not requiring proof of a present specific intent to discriminate. It is safe to assume that a policy adopted during the de jure era, if it produces segregative effects, reflects a discriminatory intent. As long as that intent remains, of course, such a policy cannot continue. And given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct, see, e. g., Keyes, supra, at 209-210, and because discriminatory intent does tend to persist through time, see, e. g., Hazelwood School Dist. v. United States, 433 U.S. 299, 309-310, n. 15 (1977). Although we do not formulate our standard in terms of a burden shift with respect to intent, the factors we do consider — the historical background of the policy, the degree of its adverse impact, and the plausibility of any justification asserted in its defense — are precisely those factors that go into determining intent under Washington v. Davis, 426 U.S. 229 (1976). See, e. g., Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-267 (1977). Thus, if a policy remains in force, without adequate justification and despite tainted roots and segregative effect, it appears clear — clear enough to presume conclusively — that the State has failed to disprove discriminatory intent.

We have no occasion to elaborate upon what constitutes an adequate justification. Under Green, we have recognized that an otherwise unconstitutional policy may be justified if it serves "important and legitimate ends," Dayton, supra,at 538, or if its elimination is not "practicable," Board of Ed. of Oklahoma City v. Dowell, 498 U. S. ___, ___ (1991) (slip. op., at 11). As Justice Scalia points out, see post, at 5-6, our standard appears to mirror these formulations rather closely. Nonetheless, I find most encouraging the Court's emphasis on "sound educational practices," ante, at 10 (emphasis added); see also, e. g., ante, at 12 ("sound educational justification"); ante, at 17 ("sound educational policy"). From the beginning, we have recognized that desegregation remedies cannot be designed to ensure the elimination of any remnant at any price, but rather must display "a practical flexibility" and "a facility for adjusting and reconciling public and private needs." Brown v. Board of Ed., 349 U.S. 294, 300 (1955). Quite obviously, one compelling need to be considered is the educational need of the present and future students in the Mississippi university system, for whose benefit the remedies will be crafted.

In particular, we do not foreclose the possibility that there exists "sound educational justification" for maintaining historically black colleges as such. Despite the shameful history of state enforced segregation, these institutions have survived and flourished. Indeed, they have expanded as opportunities for blacks to enter historically white institutions have expanded. Between 1954 and 1980, for example, enrollment at historically black colleges increased from 70,000 to 200,000 students, while degrees awarded increased from 13,000 to 32,000. See S. Hill, National Center for Education Statistics, The Traditionally Black Institutions of Higher Education 1860 to 1982, pp. xiv xv (1985). These accomplishments have not gone unnoticed:

"The colleges founded for Negroes are both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of higher learning for their children. They have exercised leadership in developing educational opportunities for young blacks at all levels of instruction, and, especially in the South, they are still regarded as key institutionsfor enhancing the general quality of the lives of black Americans." Carnegie Commission on Higher Education, From Isolation to Mainstream: Problems of the Colleges Founded for Negroes 11 (1971).

I think it undisputable that these institutions have succeeded in part because of their distinctive histories and traditions; for many, historically black colleges have become "a symbol of the highest attainments of black culture." J. Preer, Lawyers v. Educators: Black Colleges and Desegregation in Public Higher Education 2 (1982). Obviously, a State cannot maintain such traditions by closing particular institutions, historically white or historically black, to particular racial groups. Nonetheless, it hardly follows that a State cannot operate a diverse assortment of institutions — including historically black institutions — open to all on a race neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another. No one, I imagine, would argue that such institutional diversity is without "sound educational justification," or that it is even remotely akin to program duplication, which is designed to separate the races for the sake of separating the races. The Court at least hints at the importance of this value when it distinguishes Green in part on the ground that colleges and universities "are not fungible." Ante, at 9. Although I agree that a State is not constitutionally required to maintain its historically black institutions as such, see ante, at 23-24, I do not understand our opinion to hold that a State is forbidden from doing so. It would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.