The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_1205/90_1205.zc2

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SUPREME COURT OF THE UNITED STATES
                        --------
                Nos. 90-1205 and 90-6588
                        --------
                UNITED STATES, PETITIONER
90-1205                    v.
      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.
  ``We must rally to the defense of our schools.  We must
repudiate this unbearable assumption of the right to kill
institutions unless they conform to one narrow standard.''
W.E.B. Du Bois, Schools, 13 The Crisis 111, 112 (1917).
  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 the
destruction 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 assign-
ment policies, in order to eliminate or decrease observed
racial imbalances.  See, e.g., Swann v. Charlotte-Mecklen-
burg 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 reassign-
ment-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 elimi-
nate 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 their
time determining whether such policies have been ade-
quately 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 justifica-
tion 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. Metropoli-
tan 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 conclu-
sively-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 univer-
sity system, for whose benefit the remedies will be crafted.
  In particular, we do not foreclose the possibility that
there exists ``sound educational justification'' for maintain-
ing historically black colleges as such.  Despite the shame-
ful 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 institutions
for enhancing the general quality of the lives of black
Americans.''  Carnegie Commission on Higher Educa-
tion, 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 Desegre-
gation 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 institu-
tions-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.