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Amdt14.S1. Remaining Vestiges of Unconstitutional Racial Segregation

Fourteenth Amendment, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Public institutions of higher education were also segregated by race, and the Court addressed desegregation efforts in that context as well. In its 1992 decision United States v. Fordice,1 the Court determined that Mississippi had not, by adopting race-neutral admissions policies, eliminated all vestiges of its prior de jure, racially segregated higher education system.2 The Court held that the Equal Protection Clause requires that a state, to the extent practicable and consistent with sound educational practices, must eradicate policies and practices that are traceable to its dual system and that continue to have segregative effects.3 The Court identified several surviving aspects of Mississippi’s prior dual system that were constitutionally suspect and that had to be justified or eliminated, including the widespread duplication of programs throughout the public university system, which was a remnant of the dual “separate-but-equal” system; institutional mission classifications that made three formerly White-only schools and no formerly Black-only schools the flagship “comprehensive” universities with the most expansive academic offerings; and the retention and operation of all eight schools rather than the possible merger of some.4

505 U.S. 717 (1992). back
Id. at 729 ( “We do not agree with the Court of Appeals or the District Court . . . that the adoption and implementation of race-neutral policies alone suffice to demonstrate that the State has completely abandoned its prior dual system.” ). See also id. at 733 (stating that “there are several surviving aspects of Mississippi’s prior dual system which are constitutionally suspect; for even though such policies may be race neutral on their face, they substantially restrict a person’s choice of which institution to enter, and they contribute to the racial identifiability of the eight public universities. Mississippi must justify these policies or eliminate them.” ). back
Id. at 729–31. back
Id. at 733–42. For further discussion, see Christine J. Back & JD S. Hsin, Cong. Rsch. Serv., R45481, “Affirmative Action” and Equal Protection in Higher Education (2019), back