Britney Denton v. Board of Governors for the State University System

USCA11 Case: 24-10567 Document: 80-1 Date Filed: 06/09/2026 Page: 1 of 78

NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10567

____________________

BRITNEY DENTON,

NYABI STEVENS,

DEIDRICK DANSBY,

FAYERACHEL PETERSON,

ALEXANDER HARRIS, et al.,

Plaintiffs-Appellants,

versus

BOARD OF GOVERNORS FOR THE STATE

UNIVERSITY SYSTEM OF FLORIDA,

STATE OF FLORIDA,

STATE OF FLORIDA, COMMISSIONER

OF EDUCATION,

RAYMOND RODRIGUES,

BRIAN LAMB, et al.,

Defendants-Appellees,

MARSHALL M CRISER, III, et al.,

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2 Opinion of the Court 24-10567

Defendants.

____________________

Appeals from the United States District Court

for the Northern District of Florida

D.C. Docket No. 4:22-cv-00341-RH-MAF

____________________

Before ROSENBAUM, BRANCH, and KIDD, Circuit Judges.

PER CURIAM:

This case asks whether the administrators of Florida’s only

historically Black college or university (“HBCU”) violated federal

law through (1) chronically underfunding the university and (2) of-

fering fewer unique, high-demand programs at the HBCU, versus

its historically white peer institutions. That HBCU is Florida Agri-

cultural and Mechanical University (“FAMU”). Several current

FAMU students brought this putative class action, alleging that the

Florida State University System’s treatment of FAMU violated Ti-

tle VI, the Fourteenth Amendment’s Equal Protection Clause, and

United States v. Fordice, 505 U.S. 717 (1992).

When the school administrators moved to dismiss, the dis-

trict court denied the motion on standing grounds, but the court

granted the motion for failure to state a claim. We agree with the

district court’s thoughtful standing analysis. But we conclude that

the court misapplied the Rule 12(b)(6) standard of review—credit-

ing the administrators’ version of events over the students’ well-

pled allegations, and looking beyond the four corners of the com-

plaint to disputed extrinsic materials. Of course, nothing in this

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24-10567 Opinion of the Court 3

opinion reflects any view on the underlying merits of the students’

claims. But as alleged, those claims should’ve survived the motion-

to-dismiss stage.

For those reasons, we affirm in part, reverse in part, and re-

mand for further proceedings.

I. BACKGROUND

Current FAMU students Britney Denton, Nyabi Stevens,

Deidrick Dansby, Fayerachel Peterson, Alexander Harris, and Jac-

ari Hester (collectively, the “Students”) alleged that Defendants vi-

olated federal law by maintaining a segregated system of higher ed-

ucation at FAMU, Florida’s only HBCU. The Students, who are

Black, brought this putative class action on behalf of “all Black stu-

dents at FAMU at any time during the 2021/2022 school year

through the date of class certification.”

Defendants include the Board of Governors of the State Uni-

versity System of Florida (“Board”), along with individual mem-

bers of the Board sued in their official capacities; as well as Ray-

mond Rodrigues, in his official capacity as the Chancellor of the

State University System of Florida; Manny Diaz, Jr., in his official

capacity as the Commissioner of Education of the State of Florida

and as a Board member; and the State of Florida (collectively, the

“Administrators”).

The Students brought three claims against the Administra-

tors. First, they brought a Fordice claim under Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d, et seq. (“Count I”). Second,

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4 Opinion of the Court 24-10567

they brought a Fordice claim under 42 U.S.C. § 1983 and the Equal

Protection Clause (“Count II”). And third, they brought a racial-

discrimination claim under Section 1983 and the Fourteenth

Amendment (“Count III”). They brought Count I against the

Board and State of Florida, and they brought Counts II and III

against the individual Board members. The Students seek declara-

tory and injunctive relief but not damages.

The Students point to several policies or practices in support

of their claims.

First, they allege that the Administrators have engaged in a

policy or pattern of chronically underfunding (or underresourcing)

FAMU, relative to the state’s “historically white institutions”

(“HWIs”). These historically white universities include the Univer-

sity of Florida (“UF”) and Florida State University (“FSU”). The

Students allege underfunding/underresourcing in three main

ways. The first is a general underfunding claim, which posits that

the Administrators have failed to equitably fund FAMU relative to

Florida’s HWIs, in terms of total appropriations and per-student al-

locations. The second is an alleged chronic failure to match the

federal land-grant funds to FAMU as compared to Florida’s other

land-grant school, UF. And the third is a claim that the Adminis-

trators’ use and implementation of Florida’s Performance Based

Funding Model (“PBFM”) has resulted in a disproportionate distri-

bution of funds to FAMU versus Florida’s HWIs, for reasons hav-

ing to do with the state’s historical de jure system of segregated

higher education.

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The Students allege that this underfunding/underresourc-

ing has resulted in fewer total dollars going to FAMU, fewer per-

student dollars, lower faculty salaries, less funding for campus fa-

cilities and infrastructure, and an overall chronic underinvestment

in the university. They argue that the underfunding is traceable to

Florida’s de jure system of segregated higher education; that it has

continuing segregative effects; and that sound remedies exist that

the Administrators can implement to redress the issue. We refer

to this bucket of claims as the “underfunding/underresourcing” al-

legations.

Second, the Students allege that the Administrators have en-

gaged in a policy or pattern of (a) offering relatively fewer “unique,

high-demand” programs at FAMU (and taking away the unique

programming it used to have), and (b) simultaneously unneces-

sarily duplicating core programs of FAMU at nearby white institu-

tions. For example, the Students point to the Administrators’ deci-

sions to duplicate many of FAMU’s programs at the geographically

proximate FSU, to merge previous FAMU programs with FSU as

newly “joint” programs (e.g., the new Joint College of Engineer-

ing), and to momentarily eliminate FAMU’s law school (which has

since been reestablished). We refer to these as the “curricular-pol-

icy” allegations.

As with the underfunding allegations, the Students contend

that the curricular-policy allegations point to policies or practices

that are traceable to Florida’s de jure system of segregation. They

argue that the Administrators’ curricular-policy decisions have had

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6 Opinion of the Court 24-10567

enduring segregative effects, as seen through FAMU’s continued

identity as “the ‘Black School.’” The Students point to Florida’s

universities’ racial statistics to argue that it’s reasonable to infer that

these policies have impacted students’ free choices on where to go

to college.

And so they assert that Florida’s continuing use of the chal-

lenged curricular policies and the underfunding-related policies

means it hasn’t fulfilled its obligation to remedy the effects of de

jure segregation. In the Students’ view, these policies are part and

parcel of a historic pattern of chronically underfunding, and treat-

ing inequitably, Florida’s only HBCU: FAMU. So, they argue, the

state has failed to dismantle its prior system of dual segregation in

Florida’s State University System.

The district court found these allegations unavailing. After

concluding that the Students had standing to bring their claims, the

court found the Students failed to state a claim under Fordice, Title

VI, or the Fourteenth Amendment. It distinguished the Students’

claims as distinct from those the Supreme Court confronted about

Mississippi’s state university system in Fordice. The HWIs the Stu-

dents identified in their complaint, the district court said, are “not”

“traditionally white,” but rather “traditionally diverse.” And the

court opined that FAMU’s disproportionately Black student popu-

lation reflected solely the advantages of attending an HBCU for

some Black students—rather than reflecting a failure to dismantle

de jure segregation.

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As for the land-grant-underfunding allegations, the district

court reasoned that Florida isn’t required to distribute funds equi-

tably among FAMU and UF, its two land-grant schools. So it didn’t

find that the land-grant-underfunding decisions were traceable to

de jure segregation. On the PBFM-related underfunding allega-

tions, the district court concluded that though the formula might

have a racially disparate impact, the Students hadn’t adequately

pled that Florida adopted that policy for discriminatory reasons.

And the district court determined that the Students hadn’t ade-

quately alleged any curricular policies traceable to de jure segrega-

tion, either. Instead, the court reasoned that duplication made

sense as Florida’s population grew, and the court faulted the Stu-

dents for failing to identify a particular program they wanted that

FAMU didn’t have.

So the district court dismissed the Students’ claims.

On appeal, the Students argue that the district court erred in

dismissing their claims on Rule 12(b)(6) grounds because it misap-

plied the standard of review. Basically, they assert that the district

court credited the Administrators’ version of the facts over their

own well-pled allegations—which is inappropriate at the motion-

to-dismiss stage. For the reasons we’ll explain, we agree.

II. DISCUSSION

First, we determine that the Students have standing to bring

their claims. Second, we conclude that they adequately pled their

claims under Fordice, Title VI, and the Equal Protection Clause.

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8 Opinion of the Court 24-10567

We begin by discussing the standard of review. Then we

explain why the Students have standing. And finally, we show why

the complaint survives a Rule 12(b)(6) motion.

A. Standard of Review

When a district court dismisses a complaint for lack of stand-

ing, we review that decision de novo. Glynn Env’t Coal., Inc. v. Sea

Island Acquisition, LLC, 26 F.4th 1235, 1240 (11th Cir. 2022). In do-

ing so, we accept the allegations in the complaint as true, and we

draw all reasonable inferences in the plaintiffs’ favor. Id.

We also review de novo a dismissal for failure to state a

claim. Robinson v. Liberty Mut. Ins. Co., 958 F.3d 1137, 1139 (11th

Cir. 2020). Again, we accept the allegations in the complaint as true

and make all reasonable inferences in the plaintiffs’ favor. See id.

Generally, claims are facially plausible when the allegations “al-

low[] the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). But “[f]actual allegations that are ‘merely consistent

with a defendant’s liability’ fall short of being facially plausible.”

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)

(quoting Iqbal, 556 U.S. at 678). In other words, “[t]he plausibility

standard ‘calls for enough fact[s] to raise a reasonable expectation

that discovery will reveal evidence’ of the defendant’s liability.” Id.

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

But it is not a probability standard. See Smith & Wesson Brands, Inc.

v. Estados Unidos Mexicanos, 145 S. Ct. 1556, 1565 (2025) (“‘Plausibly’

does not mean ‘probably,’ but ‘it asks for more than a sheer

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24-10567 Opinion of the Court 9

possibility that a defendant has acted unlawfully.’” (quoting Iqbal,

556 U.S. at 678)).

“And when determining whether the complaint crosses ‘the

line between possibility and plausibility of entitlement to relief,’

‘courts may infer from the factual allegations in the complaint ob-

vious alternative explanations, which suggest lawful conduct ra-

ther than the unlawful conduct the plaintiff would ask the court to

infer.’” Doe v. Samford Univ., 29 F.4th 675, 686 (11th Cir. 2022) (first

quoting Twombly, 550 U.S. at 557, and then quoting Am. Dental

Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)) (internal

citations omitted). We’ve further clarified that “facial plausibility

is determined by asking whether the facts alleged ‘allow[] the court

to draw the reasonable inference that the defendant is liable.’” Id. at

687 (quoting Iqbal, 556 U.S. at 678) (emphasis added by Doe Court).

Next, we turn to the application.

B. The Students have standing.

Because the Students adequately pled an injury, causation,

and redressability, the Students have standing to bring their claims.

To satisfy Article III’s case-or-controversy requirement,

plaintiffs must have standing to sue. Florence Endocrine Clinic, PLLC

v. Arriva Med., LLC, 858 F.3d 1362, 1365 (11th Cir. 2017). Plaintiffs

must establish three elements: (1) an “injury in fact,” which is (2)

“fairly traceable” to the defendant’s challenged conduct, and (3)

“likely to be redressed by a favorable judicial decision.” Id. (quot-

ing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).

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10 Opinion of the Court 24-10567

The Administrators argue that the Students fail on all three

prongs. We disagree. We review each prong in turn.

1. The Students adequately pled injuries in fact.

The Students adequately pled that the Administrators’ con-

duct injured them.

Generally, an “injury in fact” is “an invasion of a legally pro-

tected interest which is (a) concrete and particularized; and (b) “ac-

tual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted). An

injury is “particularized” if it “affect[s] the plaintiff in a personal and

individual way.” Trichell v. Midland Credit Mgmt., Inc., 964 F.3d 990,

1000 (11th Cir. 2020) (quoting Lujan, 504 U.S. at 560 n.1) (emphasis

and internal quotation marks omitted). In other words, we’ve said

that satisfying the injury-in-fact requirement means that “a plaintiff

may show that he ‘has sustained or is immediately in danger of sus-

taining some direct injury.’” Corbett v. Transportation Sec. Admin.,

930 F.3d 1225, 1232 (11th Cir. 2019) (quoting Lynch v. Baxley, 744

F.2d 1452, 1456 (11th Cir. 1984)). An injury that is merely

“[a]bstract . . . is not enough.” Id. (quoting Lyons, 461 U.S. at 101)

(internal quotation marks omitted).

Though injuries must be “concrete” to establish standing,

they need not be tangible. See TransUnion LLC v. Ramirez, 594 U.S.

413, 425 (2021). Concrete injuries may include “traditional tangible

harms, such as physical harms and monetary harms.” Id. But they

may also include “intangible harms,” especially “injuries with a

close relationship to harms traditionally recognized as providing a

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basis for lawsuits in American courts,” such as “reputational harms,

disclosure of private information, and intrusion upon seclusion.”

Id. (internal citations omitted).

It’s also not necessary for harms to be direct. “Even without

any direct harm, a plaintiff can establish an injury in fact by show-

ing that a statutory violation created a ‘risk of real harm.’” Muran-

sky v. Godiva Chocolatier, Inc., 979 F.3d 917, 927 (11th Cir. 2020)

(quoting Spokeo, 578 U.S. at 341). And future injuries can establish

standing, “so long as [the plaintiff] ‘is immediately in danger of sus-

taining some direct injury’ as a result of the challenged . . . conduct

and the injury or threat of injury is both ‘real and immediate,’ not

‘conjectural’ or ‘hypothetical.’” Id. at 1232–33 (quoting Lyons, 461

U.S. at 101–02); see also Whitmore v. Arkansas, 495 U.S. 149, 158

(1990) (“A threatened injury must be ‘certainly impending’ to con-

stitute injury in fact.” (citation omitted)). Plus, a “material risk of

future harm can satisfy the concrete-harm requirement in the con-

text of a claim for injunctive relief to prevent the harm from occur-

ring, at least so long as the risk of harm is sufficiently imminent and

substantial.” TransUnion, 594 U.S. at 415 (citing Spokeo, 578 U.S. at

341–42).

“At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a mo-

tion to dismiss we ‘presum[e] that general allegations embrace

those specific facts that are necessary to support the claim.’” Lujan,

504 U.S. at 561 (citation omitted); see also Moody v. Holman, 887 F.3d

1281, 1286 (11th Cir. 2018) (similar). And for putative class actions,

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“only one named plaintiff for each proposed class needs to have

standing for a particular claim to advance.” Wilding v. DNC Servs.

Corp., 941 F.3d 1116, 1124 (11th Cir. 2019).

Finally, the Supreme Court has told us that students’ “dimin-

ished ability to receive an education in a racially integrated

school—is, beyond any doubt, not only judicially cognizable but,

as shown by cases from Brown v. Board of Education, 347 U.S. 483

(1954), to Bob Jones University v. United States, 461 U.S. 574 (1983),

one of the most serious injuries recognized in our legal system.”

Allen v. Wright, 468 U.S. 737, 756 (1984), abrogated on other grounds

by Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118

(2014).

In this case, the Students adequately pled injuries in fact.

The class of people who’ve allegedly suffered an injury here con-

sists of current FAMU students, who have suffered (and will con-

tinue to suffer) diminished educational opportunities because of

the alleged underresourcing, underfunding, and challenged curric-

ular policies concerning FAMU. See id.; see also Lujan, 504 U.S. at

560.

The Students clearly fall into this class. As alleged, their di-

minished opportunities come from an absence of unique, high-de-

mand programs at FAMU, leading to less racial diversity; per-stu-

dent underfunding, relative to UF, to the tune of nearly $5,000 per

student; unnecessarily duplicated programs, leading to less diver-

sity among the student body; FAMU’s underdeveloped facilities,

campus, and infrastructure; lower levels of faculty pay because of

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the alleged underfunding, which is important for attracting both

students and research grants; fewer resources for students and fac-

ulty more generally; and specifically, “less money to support aca-

demic research programs, student support, faculty capacity and

badly needed technology and infrastructure upgrades.” 1

These injuries are concrete and particularized. Lujan, 504

U.S. at 560. And the Students (as current FAMU students suffering

these conditions) clearly have “a personal stake in the outcome” of

this case. Corbett, 930 F.3d at 1232. The mere fact that these “con-

crete and specific” injuries are “widely shared” doesn’t mean they

aren’t legally cognizable injuries in fact. See Fed. Election Comm’n v.

Akins, 524 U.S. 11, 24–25 (1998). It just means—as with any puta-

tive class action—that the injury is common to a class of prospec-

tive plaintiffs.

The Administrators advance two counterarguments here.

Neither is compelling.

First, they contend that any “lack of racial diversity at

FAMU” isn’t a cognizable injury for standing purposes; and that

even if it is, the Students didn’t allege that white students don’t at-

tend FAMU because of underfunding or curricular deficiencies.

1 One example of this is the alleged downsizing of FAMU’s College of Agricul-

ture, which coincided with “giving UF, the traditionally-white land-grant in-

stitution, primary control over many of the research, education, and extension

services in the State.” The Students allege that this action “limited the growth

and expansion of agricultural and land-grant related programs at FAMU,” ex-

panding them instead at the HWI UF, at FAMU’s expense.

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14 Opinion of the Court 24-10567

The Administrators assert that white students may decline to at-

tend FAMU for many other reasons. For instance, they say, dispro-

portionately more Black students may choose to attend FAMU in

part because of its identity as an HBCU—which might not be rela-

tively as big of a draw, in and of itself, for some non-Black students.

But the Students don’t allege that lack of diversity is itself an

injury. To the contrary, they claim that the relative lack of racial

diversity at FAMU “is both a cause and [a] consequence of segrega-

tion’s vestiges, but it is not Plaintiffs’ injury.” So this counterargu-

ment misunderstands the Students’ claims.

Second, the Administrators argue that the Students failed to

allege that they were personally denied opportunities because of

Florida’s funding decisions. This is wrong. As current FAMU stu-

dents, the Students are each among the intended beneficiaries of

FAMU’s funding and programming. So according to their allega-

tions, they’ve been personally denied equal educational opportuni-

ties. Once again, that these injuries are “widely shared” doesn’t

mean they aren’t injuries. See Akins, 524 U.S. at 24–25.

In sum, at this stage of the case, the Students have satisfied

standing’s injury prong.

2. The Administrators caused the Students’ injuries.

The Students have also satisfied the causation prong at the

pleading stage.

To establish causation, “the named plaintiffs must allege

that their injuries are ‘connect[ed] with the conduct of which [they]

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complain.’” Wilding v. DNC Servs. Corp., 941 F.3d 1116, 1125 (11th

Cir. 2019) (quoting Trump v. Hawaii, 585 U.S. 667, 697–98 (2018)).

The injury must be “fairly traceable to the defendant’s conduct,”

and proximate cause is not required. Lexmark, 572 U.S. at 134 n.6.

In other words, plaintiffs don’t have to allege “that the defendant’s

actions are the very last step in the chain of causation,” as “even

harms that flow indirectly from the action in question can be said

to be ‘fairly traceable’ to that action for standing purposes.” Wild-

ing, 941 F.3d at 1125–26 (cleaned up) (citations and quotation marks

omitted).

Here, the Students’ injuries—their diminished educational

opportunities at FAMU—are connected with, and fairly traceable

to, the Administrators’ conduct. See id. It doesn’t matter if inter-

vening events occurred, or if these harms flowed only “indirectly.”

See id. The Administrators allegedly failed to dismantle the segre-

gative effects of de jure segregation, by failing to adequately re-

source and fund FAMU (especially relative to Florida’s HWIs) and

by failing to modify FAMU’s curricular offerings to make the

school relatively more attractive.

In terms of causation, the Administrators are the proper de-

fendants here. To recap, they consist of Florida, Florida’s Commis-

sioner of Education, the Board, and various Board members sued

in their official capacities. The Board was created “to govern the

State’s public universities,” and it is responsible for managing each

state university and “avoiding wasteful duplication.” It is also re-

sponsible for “[a]ccounting for [the] expenditure of funds

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16 Opinion of the Court 24-10567

appropriated by the Legislature for the State University System as

provided by law”; submitting budget appropriations requests and

adopting strategic plans for each university; and withholding fund-

ing, as needed, in ensuring universities comply with the law. It’s

the various board members’ job to investigate noncompliance with

the law among schools in the system, to determine allocations of

PBFM funding, and to run the Board’s Budget and Finance Com-

mittee and Facilities Committee, among others. And as alleged,

the Administrators are all “recipients of federal financial assistance”

and responsible for controlling and disbursing those funds, for

which the Students (as current FAMU students) are the “intended

beneficiaries[.]” So the Students’ injuries are fairly traceable to the

Administrators’ conduct. See id.

The Administrators counter, once again, by pointing to the

racial-diversity issue. They contend that the Students haven’t al-

leged that white students choose not to attend FAMU because of

Florida’s curricular offerings, programming, or funding policies.

They argue that some white students’ decisions, in picking col-

leges, may be driven by factors besides Florida’s funding and cur-

ricular decisions. But as we’ve explained, this argument does not

respond to the Students’ claims. The Students aren’t asserting a

racial-diversity injury per se. Instead, they challenge the policies

and practices that the Administrators have implemented—which,

in turn, have allegedly adversely affected their educational oppor-

tunities as current FAMU students. Those injuries are traceable to

the Administrators’ conduct.

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So the Students meet the causation prong, too.

3. The Students’ injuries are redressable.

The Students also meet the third standing requirement: re-

dressability.

To prevail, the Students must show only that there is “‘a

substantial likelihood’ of redressability.” Wilding, 941 F.3d at 1126–

27 (quoting Duke Power Co. v. Env’t Study Grp., 438 U.S. 59, 79

(1978)). It is substantially likely that if the Administrators increased

the funding or curricular offerings at FAMU, the injuries the Stu-

dents point to—having lesser educational opportunities—would be

redressed. In other words, it is substantially likely that an injunc-

tion ordering the Administrators to increase the funding, resources,

or curricular offerings at FAMU would bring FAMU in line with

the mandates of Fordice, Title VI, and the Fourteenth Amendment.

Once more, the Administrators focus on the racial-diversity

issue in response. They contend that even if FAMU expanded its

programs or received more funds, that wouldn’t necessarily mean

more white students would apply or gain admission. They point

again to the other reasons Florida’s students may select non-FAMU

schools, arguing that we shouldn’t look to third parties’ conduct in

assessing standing.

This argument might be persuasive if the Students’ alleged

injury was a lack of racial diversity. 2 But it isn’t. Rather, the claim

2 But even so, Fordice and Knight suggest that remedying the vestiges of segre-

gation could increase schools’ racial diversity. In Fordice, the Court observed

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18 Opinion of the Court 24-10567

is that the Administrators have mishandled the federal funding that

they receive. As alleged, the Administrators have the power to di-

rect, control, and disburse those funds. And their decisions to do

so, the Students say, have reduced the Students’ available educa-

tional opportunities. So the Administrators are capable of redress-

ing the Students’ injuries on the underfunding allegations.

As for the curricular-offerings allegations, those injuries are

redressable, too. Florida law provides that the Board must avoid

“wasteful” program duplication, account for funding expenditures,

and approve, review, and terminate universities’ degree programs

as necessary. See FLA. CONST. art. IX, § 7(d); Fla. Stat. § 1001.705(2).

So, the Students argue, an injunction ordering the Administrators

to comply with Title VI and the Fourteenth Amendment would

redress the Students’ injuries. And the Students point to Fordice and

Knight, both of which rejected the “freedom-of-choice” argument

when it comes to the racial-diversity issue. In other words, they

urge, the State is obligated to “take the necessary steps to ensure

that [students’] choice [of universities] now is truly free.” Fordice,

505 U.S. at 743.

that even though “college attendance is by choice and not by assignment,”

that “does not mean that a race-neutral admissions policy,” for example,

would “cure[] the constitutional violation . . . .” 505 U.S. at 729. Similarly, as

we said in Knight, policies that are vestiges of de jure segregation may result in

“disproportionate numbers of whites . . . [being] discourag[ed] from choosing

to attend [HBCUs],” because some of them “can satisfy their curricular desires

at HWIs, and cannot satisfy them at” HBCUs like FAMU. See 14 F.3d at 1541

(emphases in original).

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We agree. We think the Students have shown that, for

standing purposes, “‘a substantial likelihood’ of redressability” ex-

ists. Wilding, 941 F.3d at 1126–27

Because the Students’ allegations satisfy all three prongs, the

Students have standing to bring their Fordice, Title VI, and Equal

Protection claims.

C. The Students adequately pled a Fordice claim.

We conclude that the Students adequately pled a Fordice

claim. Because we are the first federal appellate court to address

the pleading standard for Fordice claims, we first discuss what these

plaintiffs must plead to survive a Rule 12(b)(6) motion to dismiss.

Then we apply that standard to the Students’ allegations.

1. Fordice’s Pleading Standard

Two cases primarily guide us in discerning what plaintiffs

must allege to adequately plead a Fordice claim: (1) Fordice itself, and

(2) Knight v. State of Alabama, 14 F.3d 1534 (11th Cir. 1994). Still,

both Fordice and Knight articulated the legal standard for a Fordice

claim well after the motion-to-dismiss stage, after trials took place

on the merits of the plaintiffs’ claims.3

3 To underscore the record-heavy nature of Fordice claims, it’s worth noting

that the district court in Fordice heard from seventy-one witnesses and admit-

ted over 50,000 pages of exhibits. 505 U.S. at 725. Similarly, in Knight, two-

hundred witness testified, and there were “hundreds of thousands of pages of

exhibits,” resulting in a 360-page opinion from the district court. 14 F.3d at

1539.

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20 Opinion of the Court 24-10567

Like this case, Fordice involved claims brought under Title

VI and the Equal Protection Clause. See 505 U.S. at 722–24. The

plaintiffs sued the Mississippi governor, among others, for alleged

discrimination in the state university system. Id. At the time, Mis-

sissippi had five “historically white universities” and three “histori-

cally black” ones, which remained nearly all-white or all-Black, re-

spectively. See id. at 724–25, 733–34, 740. So the Fordice plaintiffs

sued, alleging that Mississippi had maintained and failed to disman-

tle the racially segregative effects of its prior system of de jure seg-

regation in higher education. Id. at 723–24.

The lower courts found no violations of federal law. They

concluded that the defendants were trying to dismantle the former

de jure system of segregated higher education and that the court

shouldn’t attempt to restrict students’ free choice or enforce “racial

balanc[ing].” Id. at 726–27 (citation omitted).

But the Supreme Court vacated and remanded. It reasoned

that states violate the Fourteenth Amendment when they fail to

abide by their “affirmative duty to dismantle [their] prior dual uni-

versity system.” Id. at 727–28. The Court disagreed with the lower

courts’ reasoning that “the adoption and implementation of race-

neutral policies alone suffice to demonstrate that the State has com-

pletely abandoned its prior dual system.” Id. at 729. Put simply,

free choice plus race-neutral policies doesn’t cure constitutional vi-

olations. Id. And in any case, far more than race-neutral admis-

sions policies alone shape student choices. Id. So merely having

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race-neutral admissions policies couldn’t insulate the defendants

from liability. Id.

The Fordice Court set forth the law as follows. “If policies

traceable to the de jure system are still in force and have discrimi-

natory effects, those policies . . . must be reformed to the extent

practicable and consistent with sound educational practices.” Id.

(italics removed). Or more specifically,

If the State [1] perpetuates policies and practices traceable to

its prior system [2] that continue to have segregative ef-

fects—whether by influencing student enrollment decisions

or by fostering segregation in other facets of the university

system—and [3] such policies are without sound educational

justification and can be practicably eliminated, the State has

not satisfied its burden of proving that it has dismantled its

prior system.

Id. at 731.

As we discuss in greater detail soon enough, this statement

seems to imply three requirements to make out a Fordice claim: (1)

the state must perpetuate a policy or practice “traceable to its prior

system” of de jure segregation (what we’ll call the “traceability

prong”), (2) that policy or practice must “continue to have segrega-

tive effects” (the “continuing-effects prong”), and (3) the policy

must be “without sound educational justification” and capable of

being “practicably eliminated” (the “redressability prong”).

As the Court explained, these kinds of problematic policies

violate the Equal Protection Clause “even [if] the State has

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22 Opinion of the Court 24-10567

abolished” de jure segregation “and has established racially neutral

policies not animated by a discriminatory purpose.” Id. at 731–73.

Plus, the mere fact that the state may be able to point to a “midpas-

sage justification for perpetuating a policy enacted originally to dis-

criminate against black students does not make the present [policy]

any less constitutionally suspect.” See id. at 734.

And plaintiffs don’t always have to show discriminatory in-

tent to establish a constitutional violation under Fordice. Id. at 733

n.8. Rather, if the plaintiff alleges that the state has “perpetuat[ed]

. . . policies traceable to the prior de jure segregative regime which

have continuing discriminatory effects,” then the plaintiff “need

not show such discriminatory intent[.]” Id. (italics removed). But

if the plaintiff identifies “present policies that do not have such his-

torical antecedents,” then they do have to show a “discriminatory

purpose.” Id. (emphasis added).

As for the related Title VI claim, the Fordice Court stated that

“the reach of Title VI’s protection extends no further than the Four-

teenth Amendment.” Id. at 732, n.7; accord Sandoval v. Hagan, 197

F.3d 484, 507 n.24 (11th Cir. 1999), rev’d sub nom. Alexander v. Sand-

oval, 532 U.S. 275 (2001). This makes sense, because “discrimina-

tion that violates the Equal Protection Clause of the Fourteenth

Amendment committed by an institution that accepts federal funds

also constitutes a violation of Title VI.” Gratz v. Bollinger, 539 U.S.

244, 276 n.23 (2003) (citing, inter alia, Sandoval, 532 U.S. at 281, and

Fordice, 505 U.S. at 732, n.7).

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So that’s the law as the Supreme Court articulated it in Ford-

ice.

Next, the Court applied it. It found that “several surviving

aspects of Mississippi’s prior dual system” were “constitutionally

suspect; for even though such policies may be race neutral on their

face, they substantially restrict a person’s choice of which institu-

tion to enter, and they contribute to the racial identifiability of the

eight public universities.” 505 U.S. at 733. In considering whether

the state had sufficiently dismantled its prior dual system, the Court

assessed the practices and policies the plaintiffs had pointed to in

combination with one another, rather than in isolation. See id. at

741. The Court concluded that Mississippi had to either “justify

these policies or eliminate them.” Id. at 733. So it remanded the

case for further proceedings. Id. at 743.

Next, we look at Knight v. Alabama—the only other case (be-

sides this one) that our Court has handled addressing a Fordice

claim—for guidance in discerning the elements of a Fordice claim.

The Knight plaintiffs alleged that Alabama violated Title VI by allo-

cating resources inequitably among its public universities and fail-

ing to remedy the vestiges of de jure segregation. 14 F.3d at 1538.

In considering the issue, we, of course, discussed the Fordice stand-

ard.

As we explained, Fordice sets forth “a three-step analysis” for

assessing these claims. Id. at 1540.

Step one asks “whether any particular policy that has been

challenged as segregative is ‘traceable’ to decisions that were made

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24 Opinion of the Court 24-10567

or practices that were instituted in the past for segregative reasons,

thus rendering it a vestige of segregation.” Id. This “burden of

proof lies with the [plaintiff].” Id. at 1540–41. In other words, once

a court determines “that a particular policy was originally adopted

for discriminatory reasons, the Fordice test inquires whether the

current policy is ‘traceable’ to the original tainted policy, or is

‘rooted’ or has its ‘antecedents’ in that original policy.” Id. at 1550.

We emphasized that Fordice “expressly held that an otherwise legit-

imate interim justification for perpetuation of a policy is insuffi-

cient to break the causal chain.” Id.

If the plaintiff carries her burden of making that showing, we

move onto step two. Now, “the burden of proof falls upon

the State, and not the aggrieved plaintiffs, to establish that it has dis-

mantled its prior de jure segregated system.’” Id. at 1541 (quoting

Fordice, 505 U.S. at 739) (emphasis in original and italics removed).

“The state may carry this burden in one of two ways.” Id. First, it

can show that the challenged policy doesn’t have any segregative

effects today—which requires that courts “consider the effect of the

policy as it operates in combination with any other challenged poli-

cies.” 4 Id. (emphasis added). Or second, the state can show that “it

4 Policies with segregative effects may include those that influence students’

enrollment decisions, by “inhibit[ing] ‘free choice’ by students as to university

attendance.” Id. at 1541. These may include either “policies that have the

effect of discouraging or preventing blacks from attending HWIs” (like “more

stringent admissions requirements for HWIs than for HBIs [i.e., historically

Black institutions]”), or “policies that discourage whites from seeking to attend

HBIs” (like “duplication of programs at HBIs and HWIs in the same geo-

graphic area; the assignment to HBIs of institutional missions that restrict

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24-10567 Opinion of the Court 25

simply is not possible” to abolish or modify the challenged policy.5

Id. We were emphatic that, at step two, “the burden of proof lies”

with the state and not the plaintiffs. See id. at 1546; id. at 1552

(same).

If the state fails to make this showing, we then move onto

step three. Fordice requires the state to adopt, “from among the full

range of practicable and educationally sound alternatives to the

challenged policy, the one that would achieve the greatest possible

reduction in the identified segregative effects.” Id. at 1541. So at

the third step, courts examine “the practicability and educational

them to programs of instruction that cannot effectively attract whites; and the

failure to fund HBIs comparably to HWIs or to locate high-prestige programs

at HBIs”). Id. But again, the segregative-effects inquiry requires determining

whether a policy, “alone or in combination with other policies, continue[s] to

have segregative effects on student choice . . . .” Id. at 1546; see also id. at 1550

(stating that, to affirm on the basis that there were no continuing segregative

effects, “we would, at a minimum, have to conclude that all three types of

continuing segregative effects pointed out by plaintiffs, as well as other com-

bined effects, are, in fact, unfounded”).

5 Here, we drew from Fordice’s mandate that schools must reform their poli-

cies or practices “to the extent practicable and consistent with sound educa-

tional practices.” Id. at 1541 (quoting Fordice, 505 U.S. at 729). So the state can

maintain the practice or policy if “the state can show that there are no less

segregative alternatives which are practicable and educationally sound . . . .”

Id. But “the state’s burden” here “is a heavy one[,] and ‘the circumstances in

which a State may maintain a policy or practice traceable to de jure segrega-

tion that has segregative effects are narrow.’” Id. (quoting Fordice, 505 U.S. at

744 (O’Connor, J., concurring)) (italics removed).

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26 Opinion of the Court 24-10567

soundness of possible alternatives or modifications to a challenged

policy[.]” Id.

But the mere fact that a policy is educationally sound is not

enough. “Under Fordice, a state can be required to change even ed-

ucationally sound practices where they have been found to be ves-

tiges of segregation with continuing segregative effects.” Id. at

1546. Indeed, if the state fails to adopt such an alternative policy,

then “it remains in violation of the Fourteenth Amendment.” Id.

at 1541 (quoting Fordice, 505 U.S. at 727). “Only where there are

no alternative remedies that are practicable and educationally

sound is the state defendant relieved of its obligation to remedy the

vestiges’ effects.” Id. at 1546 (emphasis added).

And like the showing at step two, we repeatedly made clear

that the step-three showing is “an affirmative duty borne by the state,

[so] the onus is not on the plaintiffs to propose the remedy options

to be considered.” Id. at 1541 (emphasis added); accord id. at 1546

(stating that the “burden of proof lies” with the state in showing

that there are no “practicable and educationally sound policies that

would reduce or dismantle the segregative effects”); id. at 1552.

We then went on to apply this three-step burden-shifting

framework. See id. at 1544–53. We ultimately vacated in part and

remanded, id. at 1557, concluding the plaintiffs had established

some of their claims, yet affirming the district court’s denial of oth-

ers, see id. at 1553.

Fordice and Knight tell us a few things about the pleading

standard. First, because step one is the plaintiff’s burden, it’s clear

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24-10567 Opinion of the Court 27

that the Students must allege that the policies or practices they

challenge are “‘traceable’ to decisions that [the Administrators]

made or practices that [they] instituted in the past for segregative

reasons, thus rendering [the policy or practice] a vestige of segre-

gation.” See Knight, 14 F.3d at 1540. Second, steps two and three

are ultimately the state’s burden. Id. at 1541, 1546. So it’s not im-

mediately clear what the plaintiffs have to show, if anything, to

preemptively rebut the state’s required showings at the motion-to-

dismiss stage. But here, we don’t have to decide that issue, because

even if we did require the plaintiffs to preemptively rebut the

state’s showing on the continuing-effects and redressability

prongs,6 the Students’ allegations would adequately do so here.

To explain why, we group the Students’ challenged policies

or practices into two buckets.

The first consists of FAMU’s alleged underfunding and un-

derresourcing. This includes the Students’ allegations about un-

derfunding as a general matter, as well as specifically in terms of

the per-student allocations and use of the PBFM. It also includes

6 That said, both our Court and the Supreme Court have been clear that the

state bears the “burden of proof” on steps two and three. Id. at 1546, 1552; see

also Fordice, 505 U.S. at 727–28, 731. But it would be strange to impose an

evidence-based burden-shifting framework at the pleading stage, before dis-

covery has even begun. See, e.g., Hittle v. City of Stockton, California, 145 S. Ct.

759, 761 (2025) (Thomas, J., dissenting from the denial of certiorari) (describ-

ing some of the challenges in applying McDonnell Douglas’s evidence-based bur-

den-shifting framework even at summary judgment (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973)).

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28 Opinion of the Court 24-10567

their claims about the state’s underinvestment in FAMU’s facilities,

campus, and infrastructure.

The second bucket consists of FAMU’s curricular policies.

This includes its alleged lack of unique, high-demand programs, 7

and the alleged unnecessary duplication of programs between

FAMU and nearby historically white institutions.

Now onto the analysis.

2. Underfunding/Underresourcing Claims

The Students adequately pled their underfunding and un-

derresourcing claims. Their allegations plausibly support the trace-

ability, continuing-effects, and redressability prongs of a Fordice

claim.

First, traceability. The Students adequately pled that the

challenged underfunding/underresourcing policies are traceable to

7 The Students define programs as “unique” to one college or university if they

aren’t also offered at a nearby peer institution. For example, in the Students’

view, a program would be “unique” to FAMU if FAMU offers it, but the “ge-

ographically proximate” FSU does not. And the Students define “high-de-

mand programs” as ones “that a disproportionately large number of students

can be expected to choose as their major field of study.” The focus on “unique,

high-demand programs” mirrors arguments the parties made, and district

court considered, in Knight. See 14 F.3d at 1543–44 (discussing the presence of

“high-demand and high-prestige programs” at Alabama’s HWIs and nearby

HBCUs). The presence (or lack) of unique, high-demand programming at one

institution can be relevant to the program-duplication issue. See id. And the

Students assert, boosting the unique, high-demand programming at a state’s

HBCUs might help remedy any enduring segregative effects of the de jure sys-

tem of separate-and-unequal higher education. See id.

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24-10567 Opinion of the Court 29

the Administrators’ past decisions, which they allege discrimina-

tion initially motivated in part. See Knight, 14 F.3d at 1540. Under

the Students’ allegations, FAMU has been inequitably treated since

its inception. The complaint asserts that FAMU was originally

“designated as an 1890 land-grant institution by Florida precisely to

maintain de jure segregation.” In 1920, FAMU received roughly

$25,000, while UF received $146,000 in State appropriations. And

by 1945, that over-five-fold gap remained—with UF receiving over

$1 million, as compared to FAMU’s roughly $200,000. The Stu-

dents allege that although FAMU “was supposed to be separate and

equal,” it was in fact “unequal in every way and funded unequally

by the Defendants disproportionately to Florida’s [H]WIs.”

The Students also allege that the Administrators promised,

in a 1998 agreement, to equitably fund FAMU, given that they

hadn’t done so in the past. But, the Students continue, Florida

didn’t keep those promises.

The Students assert that we can see these alleged disparities

in Florida’s history of unequal faculty pay, too. They say this un-

derfunding results from the segregative system and works “to

FAMU’s detriment.” It’s also, the Students contend, a longstanding

effect of de jure segregation.

For example, in 1922, FAMU paid its English professors only

$800, while UF paid its English professors $2,700. In 1961, when

Florida had only three four-year institutions in its university sys-

tem, UF’s average faculty compensation was 33% higher than

FAMU’s, and FSU’s average compensation was 35% higher than

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30 Opinion of the Court 24-10567

FAMU’s. In 1980, after Florida created more public universities,

FAMU ranked ninth out of nine Florida public universities in aver-

age pay for full-time professors and associate professors. It ranked

eighth for assistant professors. At that time, the average salaries for

full-time FAMU professors were 14% below the median for all Flor-

ida public universities and 24% below UF’s average faculty salaries.

As the Students tell it, faculty salaries at FAMU are still

among Florida’s lowest. For example, in 2020, out of Florida’s

twelve public universities, FAMU ranked eleventh for its average

full-time-professor salary, twelfth for the average associate-profes-

sor salary, and eleventh for assistant professors’ average salaries.

According to the Students, “[g]iven the relatively low financial re-

sources [Florida] allocate[s] to FAMU as compared to Florida’s

[H]WIs, FAMU is less competitive in attracting faculty, which fur-

ther undermines FAMU’s ability to become a premier research in-

stitution.”

Finally, the Students allege that FAMU’s campus facilities are

also significantly underfunded. And they trace these disparities

back “to the former de jure system.” The Students claim that when

FAMU first opened in 1887, the school shared a building with a

Blacks-only high school. Six years later, FAMU relocated to a for-

mer slave plantation—its current location.

The Students submit that as part of the 1998 agreement,

Florida “committed to ‘ensur[ing] that their HBCUs [were] compa-

rable and competitive with the [H]WIs in all facets of their opera-

tions and programs,’ including the ‘enhancement of campus

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24-10567 Opinion of the Court 31

environments at HBCUs . . . with respect to the physical character-

istics of landscape, ambiance, and appearance as well as the availa-

bility, quality, and adequacy of facilities necessary to support the

missions and programs of the institutions.’” But from 1998 to

2003, Florida “failed to complete any capital projects for FAMU’s

Architecture, Business, and Engineering programs,” and today

“these programs have been awarded few, if any, enhancements at

all.”

Beyond the general underfunding assertions, the Students

also allege that the Administrators have chronically underfunded

FAMU by funding it “at a per-student allocation less than Florida

[H]WIs,” “failing to match FAMU’s federal land grant funds at a

one-to-one match,” and “implementing the PBFM, which relies on

metrics skewed by de jure segregative practices . . . .” For example,

from 1887 (FAMU’s founding) through 1956 (post-Brown v. Board of

Education), the Students contend that “Florida failed to equally di-

vide federal land-grant funds between its two land grant universi-

ties, allowing UF to prosper at the expense of FAMU.”

The complaint contends that this chronic underfunding and

underresourcing through a “lack of investment in FAMU” have

“continu[ed] to this day . . . .” For example, on the land-grant-fund-

ing issue, the Students assert, Florida has matched FAMU “at an

average of 50% or less” “[f]rom 2011 to the present,” resulting in a

total “withhold[ing]” of $24.4 million in funds for the 2011–22 pe-

riod. The Administrators have also appropriated fewer state dol-

lars to FAMU than to UF, the Students allege.

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32 Opinion of the Court 24-10567

The Dissent argues that the disparity in federal fund match-

ing stems from the fact that UF receives funding under the First

Morrill Act of 1862 and FAMU receives funding under the Second

Morrill Act of 1890. See Diss. Op. at 15. As the Dissent explains,

the First Morrill Act requires states to match 100% of federal funds,

but as of 2002, states can obtain a waiver that allows them to match

only 50% of federal funds for Second Morill Act schools. See id.

But as our binding precedent explains, if a policy of allocat-

ing a disproportionate share of land grant funding “was originally

adopted for discriminatory reasons, the Fordice test inquires

whether the current policy is ‘traceable’ to the original tainted pol-

icy, or is ‘rooted’ or has its ‘antecedents’ in that original policy.”

Knight, 14 F.3d at 1550. And here, the Students allege that the First

Morrill Act allowed segregated states like Florida to exclude Black

citizens from its benefits. So FAMU wasn’t created until the Sec-

ond Morrill Act, which required states to establish separate land-

grant institutions for Black students if their First Morrill Act insti-

tutions were race-restricted. In other words, Florida funded FAMU

under the Second Morrill Act instead of the First because of dis-

criminatory reasons in the first place.

Plus, the Students allege that funding disparities between

HWIs and HBCUs persisted, resulting in the United States Office

for Civil Rights’s 1970 determination that “the State of Florida was

operating a racially identifiable higher education system in viola-

tion of Title VI of the Civil Rights Act of 1964,” and its 1994 Notice

to Florida determining that many vestiges of Florida’s unlawful

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24-10567 Opinion of the Court 33

segregation policies and practices remained in practice in Florida in

1994, necessitating a plan outlining Florida’s obligations to disman-

tle these vestiges. Despite that plan, the Students allege, from 1987

to 2020, the per-student state funding appropriation to FAMU was

67.5% of the per-student appropriation to UF.

The Students additionally allege that “FAMU requires more

State-allocated funding per student to service its student popula-

tion, since it lacks economies of scale.” So that makes the lesser-

funds issue even more significant, the Students urge, in terms of

diminished educational opportunities for FAMU students. The

Students allege that in the 2018 to 2019 academic year, for instance,

FAMU received $10,300 per student from the state, but UF received

$14,574 per student. 8 They trace these funding disparities back to

FAMU’s founding as Florida’s “Black” land-grant institution.

The per-student funding isn’t all. In addition, the PBFM al-

legedly allocates funds to universities based on metrics the

8 The Administrators dispute the Students’ calculation of the “per-student

funding” that the state has allocated to FAMU versus other schools over the

years. As their brief notes, though, the Administrators made a number of

methodological decisions in reaching the figures they provide—including

“omit[ting]” certain kinds of funds that they say “do[] not go to students,” and

using “full-time equivalents to reflect student enrollment,” which they con-

tend is consistent with “the industry standard.” While these data and argu-

ments may be appropriate for consideration at a later stage in the case, it’s not

appropriate to weigh competing “evidence” right now. And again, the com-

plaint alleges to the contrary—that FAMU does receive less per-student fund-

ing. That’s the allegation we must credit at the motion-to-dismiss stage, not

whatever the chart in the defendants’ brief purports to show.

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34 Opinion of the Court 24-10567

Students contend are “skewed by de jure segregation, such as re-

tention rates, post-graduation education rates, degree production,

affordability, prospective employment and salaries, access rate, 4-

year graduation rates for first-in-time college students, 3-year grad-

uation rates for associates and or transfer students, and 6-year grad-

uation rates.” The Students argue that this formula perpetuates the

historical practice of underfunding FAMU because it ignores the

“historical disadvantages and the socioeconomic and racial back-

ground of the students [FAMU] predominantly services . . . .”

They cite studies finding the use of PBFMs harmful for HBCUs

more generally. FAMU reportedly scored the lowest of any of its

peers on the PBFM for both 2018 and 2020, meaning it ended up

with markedly less funds.

The complaint asserts that because the PBFM increases

funds to historically white universities, while decreasing those to

HBCUs, in turn, the Administrators’ use of this formula “effectively

eliminates the black universities as viable choices” for many stu-

dents. So in the Students’ view, this funding policy has its roots in

Florida’s system of de jure segregation—where the state universi-

ties were separate and manifestly unequal. And, they allege, the

segregative effects of that system of de jure segregation have con-

tinued to this day.

These allegations adequately plead traceability.

The Dissent reasons that the Students cannot allege tracea-

bility because the PBFM policy was enacted in 2014 and allocates

funding based on purportedly meritocratic and objective standards.

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24-10567 Opinion of the Court 35

See Diss. Op. at 12–15. But whether the PBFM standards are genu-

inely neutral and disconnected from de jure segregation is one of

many disputed questions of fact that this case presents.

It’s worth repeating that, at this early stage in the case, the

question isn’t whether the Administrators have in fact been under-

funding and underresourcing FAMU in a way that historically

traces to Florida’s system of de jure segregation in higher educa-

tion. The question is only whether the Students’ allegations over-

come the Twombly/Iqbal hurdle. And once we accept the Students’

well-pled allegations as true, as we must at this stage, the under-

funding policies reasonably appear traceable to Florida’s historical

antecedent practice of underfunding FAMU from its inception. Un-

der the complaint’s allegations, that underfunding was “originally

adopted for discriminatory reasons”—to maintain FAMU as a pur-

portedly “separate but equal,” lesser funded institution relative to

its historically white peer institutions. See Knight, 14 F.3d at 1550.

Because these policies allegedly find their “historical ante-

cedents” in Florida’s de jure system of segregated higher education,

the Students do not have to separately allege discriminatory intent

to proceed on these claims. See Fordice, 505 U.S. at 733 n.8. And

the mere fact that some of these policies, like the PBFM, might

have had alternative “midpassage justifications” doesn’t suffice to

cut off traceability, either. See id. at 734; see also Knight, 14 F.3d at

1550 (stating that “an otherwise legitimate interim justification . . .

is insufficient to break the causal chain”). The same is true of the

Administrators’ land-grant matching counterargument—that it’s

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36 Opinion of the Court 24-10567

justified by Florida’s decision to match federal funding only to the

extent that federal law requires.

It also doesn’t matter that particular policies, like the PBFM,

didn’t themselves exist during de jure segregation. Mississippi’s

ACT policy, at issue in Fordice, didn’t either. Even so, the Court

reasoned, it was traceable to earlier policies that tried to hinder

Black students’ admission to Mississippi’s historically white univer-

sities, by imposing heightened and racialized admissions standards.

See Fordice, 505 U.S. at 733–35; see also id. at 734 (finding this policy

“traceable to the de jure system” (emphasis added and italics re-

moved)). What matters is whether the underfunding/underre-

sourcing policies the Students point to are traceable to that system

of de jure segregation. See id. And as the Students allege them,

they are.

Second, continuing effects. Many of the same traceability

arguments support this second prong, too. The underfunding pol-

icies have allegedly contributed to FAMU’s difficulties in “at-

tract[ing] a diverse student population” through, for example, hav-

ing sufficient funds and resources to improve the university’s facil-

ities and infrastructure. The funding issues have also allegedly con-

tributed to FAMU’s challenges in attracting competitive faculty

through offering higher salaries. And, the Students allege, they’ve

contributed to the university’s alleged problems with attracting

students “of all races,” whose decisions to attend the school are im-

pacted by FAMU’s underfunding and underresourcing—all part of

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24-10567 Opinion of the Court 37

a “centuries-long practice of relegating FAMU to a subpar separate

and unequal status.”

The Students allege that these policies and practices “influ-

enc[e] student enrollment decisions,” Fordice, 505 U.S. at 731, by

restricting prospective students’ “choice of which institution to en-

ter,” and “contribut[ing] to the racial identifiability of” FAMU and

Florida’s historically white institutions, respectively, id. at 733; see

also Knight, 14 F.3d at 1541 (stating that segregative effects may in-

clude “policies that discourage whites from seeking to attend

HBIs,” including “the failure to fund HBIs comparably to HWIs”).

This satisfies the continuing-effects prong at the pleading stage.

The district court disbelieved the Students’ allegations about

Florida’s historically white institutions as being (as the Students

called them) “traditionally white,” asserting that in its view, “they

are not.” As the district court saw things, all Florida’s schools actu-

ally “have racially diverse faculties and student bodies,” and the

Students’ complaint “does not allege the contrary.”

But this statement failed to faithfully apply the motion-to-

dismiss standard. See Twombly, 550 U.S. at 555–56. It’s incorrect to

suggest that the Students allege that FAMU is “diverse,” 9 and it

9 To the contrary, the Students repeatedly allege that Florida’s “failed to address

disparities” in terms of recruiting a “racially diverse faculty”; and they allege

that Florida’s historically white schools are still largely white, and its HBCU is

still largely Black, meaning there’s both a “lack of racial diversity” among

FAMU’s faculty and its “student population” Specifically, the Students allege

that “[s]tatistics reported by FAMU in the past several years . . . confirm” that

FAMU has experienced only “negligible increases, if any at all, in the number

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38 Opinion of the Court 24-10567

wasn’t the district court’s job, at this stage, to decide whose version

of events to credit. Plus, FAMU’s alleged racial statistics are similar

to those from the schools at issue in Knight and Fordice; 10 the mere

fact that FAMU isn’t literally 100% Black, and the HWIs 100% non-

Black, doesn’t mean there’s no Fordice problem. And in any case,

the question isn’t simply whether the schools are “diverse” or not.

It’s whether the challenged policies have influenced students’ free

choices, or contributed to the institutions’ racial identifiability. See

505 U.S. at 733. Here, the Students adequately pled that they have.

Third, redressability. It’s easy to imagine what alternatives

or modifications the Administrators could make to remedy the al-

leged underfunding/underresourcing problem. For one thing,

of other-race, especially White, students attending FAMU.” And they allege

that the PBFM has “result[ed] in less diverse student populations” at UF and

FSU relative to “Florida’s other public universities.”

10 Though the Knight opinion doesn’t expressly tell us what the student bodies’

racial compositions were, see generally 14 F.3d (describing the schools only as

“historically white” and “historically black,” respectively), the United States’s

brief reported a similar percentage of Black students for many of Alabama’s

HWIs as FSU’s 9.2% Black statistic (contrasted with FAMU’s, which is 83.4%

Black). See United States’s Brief in Knight, 1993 WL 13139377, at *23. So we

observed that the number of Black students at the HWIs had “remained pro-

portionally quite low,” and that “[a] significantly disproportionate share of

black Alabamians has continued to attend the [HBIs] . . . and those institutions

have attracted relatively few white students.” Id. at 1539. Given that similar

figures worked in Knight to establish that the schools remained “racially iden-

tifiable,” we see no reason to think they shouldn’t do the same here. Likewise,

the HWIs in Fordice had “remained predominantly white, averaging between

80 and 91 percent white students,” whereas the HBCUs’ “racial composition

ranged from 92 to 99 percent black.” 505 U.S. at 725.

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24-10567 Opinion of the Court 39

they could allocate more funds to FAMU, either generally or on a

per-student basis. Or they could modify or eliminate the PBFM,

which the Students say has “little to no effect on degree completion

outcomes,” anyway—meaning it may lack a sound educational jus-

tification. At the pleading stage, this is enough to show that the

Students adequately pled a redressable Fordice violation.

The Administrators advance a few counterarguments.

None persuade us. They first take issue with a report that the De-

partment of Justice’s Office of Civil Rights (“OCR”) authored. The

report had concluded that many of the same policies the Students

challenge in this lawsuit are traceable to segregation, so it directed

the Administrators to remedy them. The Administrators contend,

correctly, that we shouldn’t defer to the report’s legal conclusions.

See Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).

But we don’t have to look to the OCR report to conclude

that the Students have pointed to policies that, as alleged, are trace-

able to Florida’s de jure system of segregation, have continuing seg-

regative effects, and are redressable.

Next, the Administrators urge us not to consider a letter sent

by the U.S. Secretaries of Education and Agriculture to Governor

Ron DeSantis in September 2023, asking Florida to address the

funding gap between FAMU and UF. We don’t. We need not con-

sider this letter in assessing whether the Students adequately pled

their claims because, as we’ve explained, their complaint suffices

without it.

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40 Opinion of the Court 24-10567

Finally, the Administrators contend that the challenged pol-

icies aren’t vestiges of segregation because we should “presum[e]”

that states “comply with the Constitution,” especially with the pas-

sage of time. But neither the Fordice nor the Knight Courts articu-

lated this “presumption” in the school-desegregation context. And

with good reason: no “presumption of legislative good faith,” see

League of Women Voters of Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905,

923 (11th Cir. 2023), can relieve the state of its “affirmative duty to

dismantle [its] prior dual university system,” see Fordice, 505 U.S. at

727–28; see also Knight, 14 F.3d at 1541. After all, when segregative

effects can be traced to de jure segregation, the state’s present-day

intent is irrelevant. Plus, we don’t generally apply evidentiary pre-

sumptions at the motion-to-dismiss stage—before evidence has

been collected. 11

Here, we conclude that the Students adequately pled a Ford-

ice claim on their underfunding/underresourcing allegations.

3. Curricular Policies

Now we turn to the Students’ curricular-policy allegations.

As we explain below, the Students adequately pled these claims,

11 See, e.g., Alexander v. S.C. State Conf. of the NAACP, 602 U.S. 1, 10 (2024) (“This

presumption of legislative good faith directs district courts to draw the infer-

ence that cuts in the legislature’s favor when confronted with evidence that could

plausibly support multiple conclusions.” (emphasis added)); WRIGHT &

MILLER, 5B FED. PRAC. & PROC. CIV. § 1357 (4th ed.) (“[C]ourts have refused

to consider presumptions in favor of the defendant on a motion to dismiss

since presumptions are evidentiary standards that are inappropriate for evalu-

ation at the pleadings stage.”).

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24-10567 Opinion of the Court 41

too, at this stage of the case. We go through each Fordice prong in

turn.

We begin again with traceability. The Students adequately

pled that the challenged curricular policies are traceable to Florida’s

de jure system of higher education. As the Fordice Court observed,

it could “hardly be denied” that program duplication “was part and

parcel” of the “separate but equal,” “dual system of higher educa-

tion . . . .” 505 U.S. at 738.

The same is true here: the Students allege that FAMU was

created to be the so-called “Black School” that Florida needed to

“maintain[] [its] ‘separate but equal’ system of public higher educa-

tion . . . .” And they assert that FAMU’s allegedly persistent une-

qual programmatic offerings, and the continued duplication of pro-

grams at FAMU and FSU, have been a means of “perpetuat[ing]

[that] dual and unequal system,” from the school’s inception

through today. So at a high level, the alleged duplication and lack

of unique programs at FAMU trace back to Florida’s de jure system

of segregated higher education. See Knight, 14 F.3d at 1550; Fordice,

505 U.S. at 729.

More granularly, the Students detail allegations to show how

the curricular decisions are rooted in de jure segregation. For ex-

ample, they allege that, for the past several decades, Florida has

failed to introduce “new programs,” especially “high demand pro-

grams that are not offered at geographically proximate FSU[,]” to

advance FAMU’s distinctive institutional identity. This is especially

relevant when, the Students assert, FSU has 174 unique programs

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42 Opinion of the Court 24-10567

not offered at FAMU, but FAMU has only 34 unique programs not

offered at FSU. Of FSU’s 174 total unique programs, ten are

unique, high-demand programs not offered at FAMU. But of

FAMU’s thirty-four unique programs, only four are unique, high

demand programs not offered at FSU.

And “FAMU has zero unique, high demand programs at all

levels (undergraduate, master’s, doctorate) that are not offered at

any of Florida’s [H]WIs.” According to the Students, adding

unique, high-demand programs is important “to advancing a dis-

tinctive identity at FAMU” and eliminating “vestiges of segrega-

tion.”

The Students contend that FAMU’s “brand” focuses exclu-

sively on its identity as an HBCU and not also as a school strong in

any particular programmatic offerings. As a result, they allege,

“the lack of meaningful program uniqueness fails to attract non-

Black students to attend FAMU.” And, they continue, we can see

that in “[t]he significantly low presence of other-race, especially

White students, at FAMU . . . .”

For example, the Students point to the merger with FSU of

FAMU’s engineering college, which was a high-demand program,

and aver that FAMU is no longer as unique; so it allegedly struggles

to attract students as a result. The Students also highlight the dec-

ades-long closure and later relocation of FAMU’s law school from

Tallahassee to Orlando, 260 miles away from FAMU, as evidence

of the Administrators’ efforts to shutter high-demand programs at

FAMU and prevent competition with FSU’s law school.

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24-10567 Opinion of the Court 43

As for duplication of programs, the Students allege that the

Administrators made FAMU less attractive “by duplicating its non-

core programs” and “merging [the] high demand programs” that it

used to have—which are now instead “joint initiatives with FSU.”

They argue that “FAMU’s program offerings are overwhelmingly

duplicated by Florida’s [historically white institutions] and there-

fore do not meaningfully distinguish FAMU from” those schools,

so as to attract more students to FAMU. And with respect to FSU,

in particular, the Students allege that it “unnecessarily duplicates

the majority of high demand programs offered at FAMU.” And,

they argue, that “perpetuate[s] a dual and unequal system of higher

education.” Specifically, the Students assert that “50 non-core

FAMU programs are duplicated at FSU,” and the majority of these

duplicated programs are also “high demand programs . . . .”

To be sure, as the Administrators rightly point out, even the

complaint alleges that FAMU has some high-demand, unique pro-

grams. But this misunderstands the problem: the issue isn’t

whether FAMU has any unique, high-demand programs at all. It’s

whether the relative lack of unique, high-demand programs is

traceable to the de jure system and has continuing segregative ef-

fects.

Here, the Students adequately allege that the lack of unique,

high-demand programs at FAMU is traceable to Florida’s de jure

system of segregated higher education—concentrating the unique,

high-demand programs at its historically white institutions, and of-

fering relatively far fewer at Florida’s lone HBCU.

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44 Opinion of the Court 24-10567

Now onto the continuing-effects prong. As alleged, both

these curricular policies have continuing segregative effects. As

we’ve noted, these effects may consist of, for example, discourag-

ing more non-Black students from attending the HBCU, see Knight,

14 F.3d at 1546, or otherwise restricting students’ “freedom of

choice,” see Fordice, 505 U.S. at 733. The Students allege both here.

They assert that FSU offers “five times the number of unique pro-

grams” as FAMU. And at the statewide level, FAMU allegedly has

“zero unique high demand programs” that aren’t offered at any of

Florida’s historically white institutions. The Students assert that

this contributes to FAMU’s “racial identity” and hinders students’

choices. This aligns precisely with the kinds of continuing effects

Fordice and Knight point to. See Knight, 14 F.3d at 1546; Fordice, 505

U.S. at 733.

Last, redressability. As for possible alternatives, the com-

plaint proffers that the Administrators can take steps to “ensur[e]

that FAMU has a meaningful number of high demand non-core

programs that are ‘unique’ to FAMU (not also offered at, and there-

fore not duplicated at, geographically proximate and traditionally

White FSU).” As alleged, the Administrators can do this by, for

example, approving new programs at FAMU, considering modifi-

cations to the now-joint FAMU/FSU programs, or increasing fund-

ing to FAMU to enhance its extant programming. These alleged

harms are redressable. And it doesn’t matter that the Students

don’t point to any particular high-demand program that FAMU’s

students wanted but don’t have. After all, it’s going to be the state’s

burden—not the Students’—to propose any ultimate remedy.

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24-10567 Opinion of the Court 45

Knight, 14 F.3d at 1541. So the district court erred in faulting the

Students for this.12

The Students may or may not prevail on this claim later on

once the parties put forward evidence. But that’s jumping ahead.

At the motion-to-dismiss stage, the Students have adequately pled

their claims under Twombly, Iqbal, and Rule 8.

So we conclude that the Students sufficiently pled their Ford-

ice claim, as it concerns both the alleged underfunding/underre-

sourcing, and the curricular-policy allegations. In other words,

they’ve adequately pled Count I (their Fordice/Title VI claim) and

Count II (their Fordice/Equal Protection claim).

D. The Students stated a claim under the Equal Protec-

tion Clause.

We also determine that the Students adequately pled their

standalone (non-Fordice) Equal Protection claim in Count III.

The Equal Protection Clause provides that “[n]o State shall

. . . deny to any person within its jurisdiction the equal protection

of the laws.” U.S. CONST. amend. XIV, § 1. “To establish an equal

12 In requiring the Students to do this, the district court effectively replicated

the error that the lower court made in Fordice. There, the Supreme Court

faulted that district court for “stating that ‘there is no proof’ that elimination

of unnecessary duplication would decrease institutional racial identifiability,

affect student choice, and promote educationally sound policies,” without

making clear “whether it had directed the parties to develop evidence on these

points, and if so, what that evidence revealed.” 505 U.S. at 739 (emphasis

added). So too here: it’s simply too early to tell.

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46 Opinion of the Court 24-10567

protection clause violation, a plaintiff must demonstrate that a

challenged action was motivated by an intent to discriminate.” El-

ston v. Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir.

1993). She can establish discriminatory intent “by evidence of such

factors as substantial disparate impact, a history of discriminatory

official actions, procedural and substantive departures from the

norms generally followed by the decision-maker, and discrimina-

tory statements in the legislative or administrative history of the

decision.” Id. (citing Vill. of Arlington Heights v. Metro. Hous. Dev.

Corp., 429 U.S. 252, 265 (1977)). These are the “Arlington Heights”

factors. See id.

While the Arlington Heights factors are one way of showing

discriminatory intent, they are just “some examples” of the kinds

of “‘evidence’ that courts might properly consider” in undertaking

this inquiry. See id. But they are “not [an] exhaustive” list, and the

factors have since been supplemented by the “foreseeability of dis-

criminatory impact, . . . knowledge of discriminatory impact, . . .

and . . . the availability of less discriminatory alternatives.” Jean v.

Nelson, 711 F.2d 1455, 1486 (11th Cir. 1983), on reh’g, 727 F.2d 957

(11th Cir. 1984), aff’d, 472 U.S. 846 (1985) (internal citations omit-

ted).

“Discriminatory intent may be found ‘even where the rec-

ord contains no direct evidence of bad faith, ill will or any evil mo-

tive on the part of public officials.’” Elston, 997 F.2d at 1406 (quot-

ing Williams v. City of Dothan, 745 F.2d 1406, 1414 (11th Cir. 1984)).

And the action need not be primarily or dominantly motivated by

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24-10567 Opinion of the Court 47

a discriminatory purpose. Jean, 711 F.2d at 1485. Rather, all plain-

tiffs must show is “that the action taken was, at least in part, ‘be-

cause of,’ and not merely ‘in spite of’ its adverse effects upon an

identifiable group.” Id. (citation omitted).

Here, the Students’ allegations support the reasonable infer-

ence that discriminatory motivations were at play, “at least in

part.” See id. To show this, we’ll run through some of the Arlington

Heights factors. First, the Students allege a “substantial disparate

impact,” Elston, 997 F.2d at 1406, in terms of the per-student and

overall funding disparities between FAMU and Florida’s histori-

cally white institutions. As alleged, these substantial disparities

have been around since FAMU’s inception and persist today. Sec-

ond, the Students assert a disparate impact in the programming and

curricular offerings between FAMU, Florida’s only HBCU, and its

historically white peer institutions.

The complaint also reasonably implies the Administrators’

knowledge of the foreseeable “discriminatory impact” of their al-

legedly unequal funding decisions. See Jean, 711 F.2d at 1486. After

all, the Students allege that the Administrators were repeatedly put

on notice of their pattern of chronically underfunding FAMU, and

of the fact that this practice potentially violated the Constitution.

They were on notice through (1) a 1970 OCR report, (2) a 1978 five-

year desegregation plan that the 1970 OCR report prompted, (3) a

1994 notice from the OCR (informing them that these practices re-

mained in place and were potentially violative of the State’s affirm-

ative duty to dismantle segregation’s vestiges), and (4) the resulting

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48 Opinion of the Court 24-10567

1998 agreement, in which Florida allegedly affirmatively acknowl-

edged and agreed to address these problems—(5) plus, of course, this

lawsuit. 13 Cf. Pers. Adm’r of Massachusetts v. Feeney, 442 U.S. 256,

279, n.25 (1979) (observing that “when the adverse consequences

of a law upon an identifiable group are . . . inevitable . . . , a strong

inference that the adverse effects were desired can reasonably be

drawn”).14

Taken together, these detailed allegations “go to the heart

of” many of the Arlington Heights factors. Cf. Lewis v. Governor of

Alabama, 896 F.3d 1282, 1295 (11th Cir. 2018), vacated en banc on

other grounds, 944 F.3d 1287 (11th Cir. 2019). 15 They plausibly imply

that discriminatory intent was at play—particularly given the al-

leged longstanding history of underfunding Florida’s HBCU rela-

tive to its historically white counterparts.

13 To reiterate, we aren’t looking to these OCR reports for their legal conclu-

sions. See Loper Bright, 603 U.S. 369. What matters is that the Students alleged

that the OCR reports, as a factual matter, notified the Administrators that their

conduct may have been resulting in racial disparities.

14 The Dissent argues that these OCR determinations are not relevant because

they are decades old. See Diss. Op. at 25. But the age and consistency of these

documents plausibly support allegations that the administrators have known

about these problems for decades and have intentionally done nothing to rem-

edy them.

15 We vacated the panel decision en banc because we found the plaintiffs

lacked standing to sue. See 944 F.3d at 1292. Our en banc Court didn’t opine

on the merits of the Equal Protection claim, though, which the panel had

thoughtfully analyzed.

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24-10567 Opinion of the Court 49

To be sure, after discovery, it may turn out that the state

made its funding decisions and curricular decisions for legitimate,

race-neutral reasons, as the state argues. But the Students don’t

have to show that a discriminatory reason was the only, or even

the “dominant” motivation—it just has to be one of them. See Jean,

711 F.2d at 1485. And in any case, the Students’ allegations go be-

yond the “merely consistent with . . . liability” bar that Iqbal sets.

See Chaparro, 693 F.3d at 1337; Iqbal, 556 U.S. at 678.

On this second point, the parties point us to Doe v. Samford

University, 29 F.4th 675, 701 (11th Cir. 2022). But we don’t find that

case instructive. Here, unlike there, the Students’ complaint does

not itself suggest “obvious alternative explanations.” Cf. id. Alt-

hough courts can infer “from the factual allegations in the complaint

obvious alternative explanations,” id. at 686 (quoting Am. Dental,

605 F.3d at 1290) (emphasis added), courts generally cannot look to

extrinsic materials provided by the defendants to overcome plain-

tiffs’ well-pled allegations at the motion-to-dismiss stage. 16

16 Of course, in some cases a district court can properly consider materials out-

side the pleadings at the motion-to-dismiss stage. See, e.g., Jackson v. City of

Atlanta, 97 F.4th 1343, 1350 (11th Cir. 2024). But such materials generally must

be “‘(1) central to the plaintiff's claim’ and (2) ‘the authenticity of the docu-

ment [must] not [be] challenged.’” Id. (quoting Horsley v. Feldt, 304 F.3d 1125,

1134 (11th Cir. 2002)). That’s not the case here. The Students do question the

Administrators’ alternative funding statistics, for example. Beyond that, “[t]he

district court generally must convert a motion to dismiss into a motion for

summary judgment if it considers materials outside the complaint.” Day v.

Taylor, 400 F.3d 1272, 1275–76 (11th Cir. 2005); see also Fed. R. Civ. P. 12(b).

The district court did not do so here.

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50 Opinion of the Court 24-10567

Here, some of the so-called “obvious alternative explana-

tions” that the district court relied on weren’t reasonably drawn

from the Students’ complaint at all. For example, the defendants

offered differing (relative to the Students) factual accounts of the

schools’ respective racial statistics or funding allocations. At the

pleading stage, courts must assume the truth of “all the allegations

in the complaint . . . (even if doubtful in fact),” and judges may not

dismiss claims merely based on their “disbelief of [those] factual al-

legations.” Twombly, 550 U.S. at 555–56. The district court erred

in effectively weighing the factual evidence at the pleading stage

and concluding that it disbelieved the Students’ allegations, in favor

of the view of events that the Administrators proffered.

Simply put, the question of what the Administrators’ mo-

tives were turns on factual issues that we can’t resolve at the mo-

tion-to-dismiss stage. See, e.g., Lewis, 896 F.3d at 1296. Perhaps the

Students will ultimately be able “to sustain their allegations by

proof[.]” Id. at 1297 (quoting Gomillion v. Lightfoot, 364 U.S. 339,

341 (1960). “The sole question” at the pleading stage, though, “is

whether the allegations entitle [the plaintiffs] to make good on

their claim that they are being denied rights under the United States

Constitution.” Gomillion, 364 U.S. at 341 (emphasis added).

So our decision is narrow. At this stage of the case, we hold

that the Students adequately pled their Fordice claims, as well as

their claims under Title VI and the Equal Protection Clause.

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24-10567 Opinion of the Court 51

III. CONCLUSION

For the reasons we’ve described, the Students have standing

to bring their claims. So we affirm the district court court’s judg-

ment in part. But we conclude that the district court erred in dis-

missing the Students’ Fordice, Title VI, and Equal Protection claims.

So we reverse the district court’s dismissal on Rule 12(b)(6)

grounds and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.

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24-10567 BRANCH, J., Dissenting 1

BRANCH, Circuit Judge, Dissenting:

Several students at Florida Agricultural and Mechanical Uni-

versity (“FAMU”), a historically black university, brought a putative

class action alleging that the Florida State University System’s treat-

ment of FAMU violated Title VI, the Equal Protection Clause, and

United States v. Fordice, 505 U.S. 717 (1992). Fordice held that states

have a constitutional obligation to “eradicate policies and prac-

tices” that are traceable to their de jure segregated “dual school sys-

tem[s].” 505 U.S. at 728. In 1994, we decided Knight v. Alabama, 14

F.3d 1534, 1550 (11th Cir. 1994), which is the only time this Court

has evaluated a Fordice claim against a state’s public school system.

Now, more than three decades after Knight, this case presents a Ford-

ice claim that goes far beyond what our case law has ever supported.

In this appeal, we are asked to decide (1) whether the plain-

tiffs have standing to bring this action and (2) whether they ade-

quately pleaded their claims. I agree with the Majority’s conclusion

that the plaintiff-appellants (the “students”) have standing. How-

ever, for the reasons that follow, I would affirm the district court’s

findings that the students failed to adequately plead a facially plau-

sible Fordice claim based on Florida’s alleged inequitable funding

policies or curricular policies and that they failed to adequately

plead a facially plausible Fourteenth Amendment equal protection

claim.

The students’ Fordice claim based on a theory of inequitable

funding cannot succeed because the students focus on discrimina-

tory impact while ignoring the Fordice “traceability” requirement.

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2 BRANCH, J., Dissenting 24-10567

The students leave decades-long gaps in their allegations that sever

any traceability between those modern policies and prior de jure

segregation.

The students’ Fordice claim challenging Florida’s curricular

policies fares no better. While duplicating programs offered at his-

torically black institutions at other public universities can, in cer-

tain circumstances, support a Fordice claim, program duplication is

a necessary practice for every robust statewide university system.

The students’ allegations are nothing like the unnecessary program

duplication at issue in Fordice and that existed during de jure segre-

gation creating “separate but equal” schools.

Finally, the students’ allegations do not support an inference

that the defendants enacted funding or curricular policies with dis-

criminatory intent, so they have not stated a viable equal protec-

tion claim.

Accordingly, I would affirm the district court’s dismissal of

the students’ Fordice and equal protection claims.

I. Background 1

The plaintiffs in this case are six students from FAMU, a his-

torically black university in Tallahassee, Florida. The students

brought this putative class action suit in September 2022, naming

as defendants the Board of Governors for the State University

1 “Because this appeal is from the dismissal of a complaint, we accept the alle-

gations of the complaint as true.” Darrisaw v. Pa. Higher Educ. Assistance Agency,

949 F.3d 1302, 1303 (11th Cir. 2020).

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24-10567 BRANCH, J., Dissenting 3

System of Florida, individual members of that board, and the State

of Florida (collectively, the “defendants”). In the complaint, the

students asserted a Fordice claim under Title VI of the Civil Rights

Act of 1964 and 42 U.S.C. § 1983 and a claim under the Equal Pro-

tection Clause of the Fourteenth Amendment.

The students’ first theory to support their Fordice claim al-

leged that the defendants’ chronic underfunding of FAMU is a ves-

tige of de jure segregation that the defendants have not remedied.

The students’ allegations start at the inception of Florida’s public

universities. The University of Florida (“UF”) in Gainesville and

Florida State University (“FSU”) in Tallahassee were the first two

public universities in Florida and admitted only white students

when they first opened in the 1850s. FAMU opened in 1887 and

admitted only black students.

Several decades later, after the Supreme Court’s decision in

Brown v. Board of Education, 347 U.S. 483 (1954), which held that

racial segregation in public schools violated the Equal Protection

Clause, and the enactment of the 1964 Civil Rights Act, states with

de jure segregated schools faced increased litigation. In 1970, the

U.S. Department of Education’s Office for Civil Rights (“OCR”)

notified Florida that its public university system was violating Title

VI. OCR determined that the source of the violation was, in part,

that FAMU was underfunded compared to historically white uni-

versities in Florida and that FAMU did not offer unique academic

programs. In 1978, OCR approved a five-year plan to address what

it saw as vestiges of segregation. In 1994, OCR issued a notice that

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4 BRANCH, J., Dissenting 24-10567

revisited that five-year plan and determined that vestiges of segre-

gation still remained. Then, in 1998, OCR approved a new plan for

Florida to reform its public higher education system. In 2003, Flor-

ida issued a report declaring the success of the 1998 five-year plan,

to which OCR never responded.

Jumping forward twenty years to the present litigation, the

students’ complaint alleged that, as part of the OCR reform plans

in the 1970s and 1990s, Florida committed to allocating equitable

funds to FAMU and to seeking funding to maintain and increase

the excellence of FAMU, but the defendants failed to live up to this

commitment in three ways. First, the students alleged that the de-

fendants continued to underfund FAMU compared to historically

white universities in Florida. According to the students, the

chronic lack of funding “perpetuates the vestiges of de jure segrega-

tion.”

Second, the students challenged the defendants’ Perfor-

mance Based Funding Model (the “PBFM”), which the defendants

implemented in 2014 to allocate funds to Florida’s public universi-

ties based on each school’s retention rates, post-graduation educa-

tion rates, degree production, affordability, prospective employ-

ment and salaries, access rate, and graduation rates.

Third, the students challenged the defendants’ decision to

match federal funding of FAMU at a lower percentage than it

matches federal funding of its other land grant institution.2

2 Land grant institutions are colleges or universities originally funded by fed-

eral appropriations or the sale of federal public land granted to states through

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24-10567 BRANCH, J., Dissenting 5

According to the complaint, Florida has two public universities that

are land grant institutions: UF, which became a land grant institu-

tion under an 1862 statute, and FAMU, which became a land grant

institution under 1890 legislation. Pursuant to federal legislation,

states are required to match 100% of federal land grant funding for

1862 land grant institutions, but waivers allow them to match only

50% of federal land grant funding for 1890 land grant institutions.

Since 2011, the defendants have matched 100% of federal land

grant funds to UF and 50% of such federal funds to FAMU. The

students alleged that the defendants’ historic decision to match less

than 100% of federal funds to FAMU “significantly disadvantages”

FAMU because it is “more reliant on the State’s funding than UF”

and is an intentional decision that traces back to de jure segrega-

tion.

The students’ next theory to support their Fordice claim chal-

lenged FAMU’s curricular offerings, asserting that the lack of

unique programming at FAMU stems from the defendants’ failure

to cease unnecessary program duplication at historically white uni-

versities and to introduce new unique high demand programming

at FAMU. In particular, the students focused on FAMU’s law and

engineering programs. Turning back to the 1960s, they alleged

that the defendants closed FAMU’s law school in Tallahassee in

1968 and transferred its assets to FSU to be used for FSU’s already-

the First Morrill Act of 1862 or the Second Morrill Act of 1890. See Knight, 14

F.3d at 1547 (citing Knight v. Alabama, 787 F. Supp. 1030, 1040–46 (N.D. Ala.

1991)).

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6 BRANCH, J., Dissenting 24-10567

existing law school in Tallahassee. More than 30 years later, in

2002, FAMU’s law school reopened in Orlando, Florida. According

to the students, the defendants improperly chose the Orlando loca-

tion to avoid competing with FSU’s law school in Tallahassee.

As for the engineering program, the students look back to

the 1980s, alleging that the defendants unnecessarily duplicated

FAMU’s engineering program in violation of Fordice by creating a

joint engineering program with FSU in 1982. Under this joint en-

gineering offering, students take undergraduate prerequisite

courses at their home school (either FAMU or FSU) but attend ad-

vanced courses together in a shared building in Tallahassee. The

defendants designated a single budget to fund the joint engineering

program. According to the students, engineering was a major fo-

cus at FAMU since the school’s inception, and it made FAMU

unique from historically white schools, like FSU, that did not have

an engineering program. By creating the joint program, the de-

fendants allegedly lessened FAMU’s ability to attract students to its

engineering program, and thus, the students maintain, prevented

FAMU from developing a “distinctive ‘brand’ . . . based on its pro-

grammatic offerings rather than on ‘race.’”

The defendants moved to dismiss the complaint under Fed-

eral Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of stand-

ing and failure to state a claim. The district court found that the

students had standing but, upon reaching the merits, determined

that they failed to state either a Fordice claim under Title VI or

§ 1983 or a claim under the Equal Protection Clause of the

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24-10567 BRANCH, J., Dissenting 7

Fourteenth Amendment. The students appealed, and now we con-

sider whether the district court erred in dismissing each of their

claims.

II. Standard of Review

We review a dismissal for failure to state a claim de novo. Doe

v. Samford Univ., 29 F.4th 675, 685 (11th Cir. 2022). A complaint

must “state a claim to relief that is plausible,” not “mere[ly] pos-

sib[le].” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) (quotations

omitted). To “nudge[] their claims across the line from conceivable

to plausible,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007),

plaintiffs must “plead[] factual content”—not “mere conclusory

statements”—“allow[ing] the court to draw the reasonable infer-

ence that the defendant[s] [are] liable for the misconduct alleged,”

Iqbal, 556 U.S. at 678.

“Factual allegations that are merely consistent with a de-

fendant’s liability fall short of being facially plausible.” Samford

Univ., 29 F.4th at 685 (quotations omitted). And when there is an

“obvious alternative explanation[]” for a defendant’s actions

“which suggest[s] lawful conduct,” a claim falls short of being plau-

sible. Id. at 686 (quotations omitted); see also Doe v. Emory Univ.,

110 F.4th 1254, 1260 (11th Cir. 2024) (“[A]n allegation is ‘merely

consistent’ with liability—and thus legally insufficient—when

there is an ‘obvious alternative explanation’ for the challenged

practice ‘that suggests lawful conduct.’” (alterations adopted)

(quoting Samford Univ., 29 F.4th at 688–89)). We can infer such

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8 BRANCH, J., Dissenting 24-10567

obvious alternative explanations “from the factual allegations in

the complaint.” Samford Univ., 29 F.4th at 686.

III. Discussion

The students argue that they plausibly alleged a Fordice claim

based on the defendants’ funding and curricular policies and an

equal protection claim based on intentional discrimination. The

Majority agrees with the students. I disagree and address the Ford-

ice claim before turning to the equal protection claim.

A. The students did not sufficiently plead any viable the-

ory for a Fordice claim.

In United States v. Fordice, the Supreme Court held that states

have a constitutional duty and a duty under Title VI to dismantle

“separate but equal” dual school systems that were in place during

de jure racial segregation.3 505 U.S. at 727–28, 743. Under Fordice,

“[i]f policies traceable to the de jure system [of segregation] are still

in force and have discriminatory effects, those policies . . . must be

reformed to the extent practicable and consistent with sound edu-

cational practices.” 505 U.S. at 729. So a successful Fordice claim

requires that plaintiffs plausibly allege that the policy at issue be

“traceable to and thus . . . a vestige of segregation.” Knight, 14 F.3d

at 1550. To determine whether a challenged policy is traceable to

a vestige of segregation, we must ask whether it is “rooted in” the

3 Title VI states, in relevant part, that “[n]o person in the United States shall,

on the ground of race, color, or national origin, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination under any pro-

gram or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.

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24-10567 BRANCH, J., Dissenting 9

prior system of segregation or has its “antecedents” in a policy orig-

inally adopted for discriminatory reasons. Id.; Fordice, 505 U.S. at

730 n.4.

If a plaintiff shows that a policy is traceable to past segrega-

tion, the burden of proof shifts to the state “to establish that it has

dismantled its prior de jure segregated system” or that the state re-

formed the policy “to the extent practicable and consistent with

sound educational practices.” Knight, 14 F.3d at 1541 (quoting Ford-

ice, 505 U.S. at 729, 739). Because the students did not sufficiently

allege that any of the defendants’ policies were traceable to past

segregation, I end my analysis there.

Among the several policies challenged in Fordice was the de-

cision of three historically white Mississippi public universities to

enact an American College Testing (“ACT”) policy in 1963 that re-

quired a minimum score for admission. Fordice, 505 U.S. at 733–34.

The ACT policy was designed specifically to keep black students

out of Mississippi’s historically white universities. Id. While Mis-

sissippi explained its ACT policy as a solution for student unprepar-

edness, the Court determined that such a “midpassage justifica-

tion” for an originally discriminatory policy did not make the pol-

icy “any less constitutionally suspect.” Id. And Knight involved a

challenge to Alabama’s discretionary decision to direct federal land

grant funds to Auburn, a historically white institution, rather than

to its historically black institution. 14 F.3d at 1546–47. We deter-

mined that Alabama’s practice was directly traceable to segregation

because it was a continuation of Alabama’s segregation-era policy

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10 BRANCH, J., Dissenting 24-10567

of allocating nearly all of its federal funds to Auburn, a policy “orig-

inally adopted for discriminatory reasons.” Id. at 1550. The plain-

tiffs in Knight also argued that Alabama unnecessarily duplicated

programs offered at its historically black institutions when it cre-

ated satellite branches of its historically white institutions in the cit-

ies where the historically black institutions were already located

and allowed the historically white institutions to offer more com-

prehensive courses. Id. at 1542. It was undisputed that such dupli-

cation of the historically black institutions’ programs was traceable

to de jure segregation, and we remanded the case to the district

court to conduct the remainder of the Fordice inquiry. Id. at 1544–

46, 1556.

The students here failed to adequately allege that the poli-

cies they challenge are traceable to segregation, and therefore they

failed to state a facially plausible Fordice claim.

1. The Funding Policies

The students’ Fordice claim challenges the defendants’ fund-

ing policies on three grounds: first, their failure to equitably fund

FAMU compared to Florida’s historically white universities; 4 sec-

ond, their use of the PBFM to determine appropriations among

Florida’s public universities; and third, their decision to match only

4 The students’ claim of inequitable funding alleges that general underinvest-

ment in FAMU has resulted in FAMU’s low faculty salaries and underfunded

or incomplete campus facilities and infrastructure.

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24-10567 BRANCH, J., Dissenting 11

50% of FAMU’s federal land grant funding when they match 100%

of UF’s federal land grant funding.

First, the defendants’ failure to equitably fund FAMU cannot

form the basis of a Fordice claim because, while inequitable funding

may result from specific policies, it is not a “polic[y] [or] practice[]”

itself, as Fordice requires. Fordice, 505 U.S. at 728; Ayers v. Fordice,

111 F.3d 1183, 1223 (5th Cir. 1997). In Ayers, the plaintiffs similarly

tried to bring a Fordice claim challenging “disparities” in funding

among Mississippi’s public universities. 111 F.3d at 1223. The Ayers

court declined to evaluate that Fordice claim based on funding dis-

parities and looked at the “policies . . . that result in funding dispar-

ities rather than . . . the disparities themselves.” Id. (holding that a

formula for allocating funds to public universities was not traceable

to de jure segregation). In this case, the students’ attempt to sup-

port their Fordice claim by alleging disparities in funding among

Florida’s public universities should meet the same fate. Because

the students’ challenge does not focus on the policies that result in

those alleged funding disparities, they failed to state a Fordice claim.

See id.

Second, the students challenge the PBFM approach to fund-

ing allocations arguing that it relies on metrics skewed by de jure

segregation, which results in less money being allocated to FAMU

than historically white universities in Florida. The Majority con-

cludes that the students sufficiently pleaded that the PBFM is trace-

able to prior de jure segregation. I disagree. The students did not

sufficiently allege that the PBFM is traceable to de jure segregation

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12 BRANCH, J., Dissenting 24-10567

and their allegations show an obvious alternative explanation for

the PBFM.

I start with the lack of traceability. According to the com-

plaint, in 2014, Florida began using the PBFM to allocate appropri-

ations to public universities and colleges. The PBFM awards fund-

ing based on objective metrics like retention rates, affordability,

prospective employment and salaries, and graduation rates. The

students alleged that the PBFM’s system of performance-based

metrics is “traceable to de jure segregation because it perpetuates

the same cycle from the de jure era of underfunding FAMU,” “ig-

nores the significant historical disadvantages FAMU students

faced” under the prior segregated system, and does not account for

the different “socioeconomic and racial background[s] of the stu-

dents [FAMU] predominantly serves, which results in lower perfor-

mance results” by its students when compared to the results of tra-

ditionally white universities.

Although the students alleged present discriminatory effects

from the PBFM, they fail to connect the PBFM, which was enacted

in 2014, back to a prior system of de jure segregation. The students

did not allege that the metrics themselves trace back to decisions

made during segregation. Instead, they alleged that FAMU re-

ceives less funding under the PBFM because of the “historical dis-

advantages and the socioeconomic and racial background” of

FAMU students, “which results in lower performance results for

the [PBFM] metrics.” So the students alleged only that FAMU re-

ceives less funding under the PBFM given the effects of prior

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24-10567 BRANCH, J., Dissenting 13

segregation. Alleging inequitable present effects of a policy, with-

out more, is not enough to show that it was “rooted in” segregation

because a policy’s present effects alone cannot show that a policy

“has its ‘antecedents’ in [an] original policy” that was “tainted” by

segregation. See Knight, 14 F.3d at 1550 (holding that a Fordice claim

must show that a challenged policy is rooted or has its antecedents

in a policy originally adopted for discriminatory reasons).

Relying on Fordice’s discussion of Mississippi’s ACT policy,

the Majority concludes that it does not matter that the PBFM did

not exist during de jure segregation. Rather, the Majority con-

cludes that all that matters, at this stage, is that the PBFM allegedly

finds its historical antecedents in Florida’s de jure system of segre-

gated higher education. The Majority also rejects any explanation

for why the PBFM is not traceable to segregation by describing

such explanations as impermissible “midpassage justifications” that

cannot sever the PBFM’s traceability to segregation. I disagree

with the Majority because the PBFM is meaningfully different from

the ACT college entrance exam policy the Fordice Court found to

be traceable to de jure segregation. See Fordice, 505 U.S. at 734–35.

Mississippi provided a “midpassage justification”—solving student

unpreparedness—for an originally discriminatory ACT policy,

which did not make the policy “any less constitutionally suspect.”

Id.; see also Knight, 14 F.3d at 1550 (explaining that a “legitimate in-

terim justification” is insufficient to destroy traceability). Unlike

Mississippi’s ACT policy, the students in this case did not allege that

the PBFM’s metrics trace back to segregation decisions. At most,

the students alleged that the PBFM’s metrics have a present

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14 BRANCH, J., Dissenting 24-10567

discriminatory effect because historically black colleges like FAMU

underperform on those same metrics when compared to histori-

cally white colleges. Even assuming the students are correct that

the PBFM results in inequitable funding, a present discriminatory

effect without a link to past de jure segregation is insufficient to

adequately plead a Fordice claim. See Knight, 14 F.3d at 1550.

Also—and critically at the motion to dismiss stage—none of

the students’ allegations contend with the obvious alternative ex-

planation that the PBFM policy aimed to limit racial discrimination

by relying on purely meritocratic and objective standards to allo-

cate funds among public universities in Florida. Given this obvious

alternative non-discriminatory explanation, I agree with the district

court that the students’ complaint “stop[s] short of the line be-

tween possibility and plausibility.” Emory Univ., 110 F.4th at 1260

(“[A]n allegation is merely consistent with liability—and thus le-

gally insufficient—when there is an obvious alternative explana-

tion for the challenged practice that suggests lawful conduct.” (al-

terations adopted) (quotations omitted)); Samford Univ., 29 F.4th at

686 (holding that in determining facial plausibility for a motion to

dismiss, “courts may infer from the factual allegations in the com-

plaint obvious alternative explanations, which suggest lawful con-

duct”).

Third, the students challenged the defendants’ decision to

match 50% of FAMU’s federal land grant funds while matching

100% of federal funds for its other land grant institution. Again, the

students’ allegations are insufficient to show that the defendants’

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24-10567 BRANCH, J., Dissenting 15

matching policies are traceable to de jure segregation and fall short

of being facially plausible.

I start again with the lack of traceability. The students al-

leged that Florida has two public universities that receive federal

land grant funds. UF receives funding from the First Morrill Act of

1862, and FAMU from the Second Morrill Act of 1890. The First

Morrill Act requires states to match 100% of federal funds, but as

of 2002, states can obtain a waiver that allows them to match only

50% of federal funds for Second Morrill Act schools. See Farm Se-

curity and Rural Investment Act of 2002, Pub. L. No. 107-171

§ 7212, 116 Stat. 134, 447 (codified at 7 U.S.C. § 3222d(d)); 7 C.F.R.

§ 3419.3(a). So, Florida can receive full federal funding for FAMU

by matching federal funds at 50% while it must match at 100% to

receive federal funding for UF.

The students alleged that since 2011, the defendants

matched 50% of federal funds to FAMU and 100% to UF. The stu-

dents alleged this statutorily permissible disparity is traceable to de

jure segregation.5 But they did not allege facts that can show the

modern matching decisions are rooted in segregation-era matching

decisions. The students alleged that the outcomes of this funding

policy are inequitable, but mere inequity is not enough to state a

Fordice claim. See Knight, 14 F.3d at 1550.

5 The students acknowledge that federal legislation permits the defendants to

match 50% of FAMU’s federal land grant funding.

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16 BRANCH, J., Dissenting 24-10567

To begin, the students point to allegedly discriminatory

matching decisions beginning in 2011, but they make no allegations

regarding the defendants’ fund-matching decisions before 2011, ig-

noring the decades between de jure segregation and 2011. To sup-

port a Fordice claim, the students must allege that the defendants’

fund-matching decisions are rooted in de jure segregation, but their

allegations leave an unexplained gap of several decades between de

jure segregation and the defendants’ decision to match 50% of fed-

eral funds to FAMU in 2011. This unexplained several-decades gap

in the students’ allegations severs any traceability between the de-

fendants’ fund-matching and prior segregation, dooming their

Fordice claim.

Additionally, the defendants argue that the district court cor-

rectly accepted their obvious alternative explanation for their ac-

tions—fiscal responsibility. The clear inference based on the facts

alleged is that the defendants chose to minimize their own costs—

permissibly under federal law—while ensuring the maximum

amount of federal funding for Florida’s two land grant universities.

Because there is an obvious alternative explanation for the defend-

ants’ policy that suggests lawful conduct, the students’ claim falls

short of being plausible and cannot survive a motion to dismiss.

Samford Univ., 29 F.4th at 686.

The Majority resists any claim by the defendants of fiscal re-

sponsibility, asserting that, pursuant to Fordice, a “midpassage jus-

tification” for the defendants’ fund-matching decisions does not

sever the traceability of those decisions to prior segregation. But

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24-10567 BRANCH, J., Dissenting 17

fiscal responsibility is not a “midpassage justification.” The Fordice

Court held that a “midpassage justification” for the ACT policy that

was enacted in 1963 for an expressly discriminatory purpose and

continued until at least 1992, when Fordice was issued, could not

sever traceability. Fordice, 505 U.S. at 734. But decades separate

the land grant matching decisions in this case from segregation, so

fiscal responsibility is not a “midpassage justification” of a continu-

ing segregation-era policy—it is an obvious explanation for a mod-

ern policy.

While the students compare the defendants’ funding deci-

sions to the land grant funding decision we held was traceable to

segregation in Knight, 14 F.3d at 1550–51, the facts in that case were

far different from the students’ allegations here. In Knight, Alabama

directed federal land grant funds to Auburn, a historically white in-

stitution, rather than to its historically black institution as a contin-

uation of its segregation-era policy of inequitably allocating federal

funds, which was “originally adopted for discriminatory reasons.”

Id. at 1550. In contrast, the defendants in this case ensure that

FAMU receives all the federal land grant funding that is available

to it and match 50% of that funding. Although the students as-

serted that the defendants’ decision to match only 50% as opposed

to 100% of federal funding is a discriminatory policy, they failed to

allege facts showing that the decision has any link to de jure segre-

gation.

Given the factual differences between this case and the fund-

ing policies in Knight and the obvious alternative explanation that

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18 BRANCH, J., Dissenting 24-10567

the defendants acted to secure federal funds while minimizing

costs, there is no basis to find that the modern matching decisions

are traceable to segregation-era policies. The Fordice claim fails.

2. The Curricular Policies

The students challenged the defendants’ curricular policies

under Fordice by alleging (1) that the curriculum unnecessarily du-

plicates FAMU’s nonessential programs at historically white public

universities in Florida and (2) that the curriculum does not provide

unique, high-demand programs at FAMU, using the engineering

and law programs as examples and comparing FAMU and FSU’s

curricular offerings.6 But the complaint does not contain sufficient

facts to state a viable Fordice claim under these theories.

I start with the students’ allegations of unnecessary program

duplication. A viable Fordice claim requires showing more than

curricular offerings at a historically black institution that were du-

plicated at a historically white institution; the duplication must also

6 The students argue that unnecessary program duplication occurs “where

two or more institutions offer the same nonessential or noncore program,” so

“all duplication at the bachelor’s level of non-basic liberal arts and sciences

course work and all duplication at the master’s level and above” qualify as un-

necessary (quoting Fordice, 505 U.S. at 738). But the Fordice Court did not

adopt that standard—it merely noted that the district court used that standard.

Fordice, 505 U.S. at 738. Accordingly, I decline to apply it here.

The students also argue that unnecessary program duplication is per se tracea-

ble to de jure segregation, but that rule is not supported by Fordice, Knight, or

any other binding authority.

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24-10567 BRANCH, J., Dissenting 19

be “unnecessary” and, like all Fordice claims, traceable to de jure

segregation. Fordice, 505 U.S. at 729, 738–39.

While the students alleged program duplication at other

public universities in Florida, specifically at neighboring FSU, their

allegations that program duplication between FAMU and FSU is

unnecessary are conclusory and need not be accepted at the motion

to dismiss stage. See Iqbal, 556 U.S. at 678. The students did not,

for example, allege facts that show any particular duplicated pro-

grams are unnecessary because there is not enough demand from

the FAMU and FSU student bodies to warrant two duplicate pro-

grams in the same academic field. Because the students make only

conclusory allegations of unnecessary program duplication, they

have not adequately alleged program duplication between FAMU

and FSU that is traceable to the de jure segregation practice of un-

necessary program duplication.

Further, the defendants present several obvious lawful alter-

native explanations for the alleged program duplication, each of

which can be inferred from the facts in the complaint. See Emory

Univ., 110 F.4th at 1263 (“[A]n allegation is merely consistent with

liability—and thus legally insufficient—when there is an obvious

alternative explanation for the challenged practice that suggests

lawful conduct.” (alterations adopted) (quotations omitted)). One

obvious alternative explanation for the modern curricular policies

is that Florida’s population has grown over the decades since seg-

regation, requiring more program duplication across the state’s

public universities to provide the same access to education.

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20 BRANCH, J., Dissenting 24-10567

Another obvious explanation is that Florida has created a robust

public university system with 12 institutions that serve different re-

gions within the state, which also requires more program duplica-

tion. Yet another obvious alternative explanation is that the de-

fendants see merit in operating neighboring FAMU and FSU as sep-

arate full-service research institutions because each school provides

unique benefits and experiences. Historically black institutions

“have succeeded in part because of their distinctive histories and

traditions,” Fordice, 505 U.S. at 748 (Thomas, J., concurring), and

maintaining their existence and comprehensive offerings neces-

sarily requires more program duplication within a state university

system. These alternative explanations lead to an inference that

necessary program duplication exists in Florida, which is distinct

from, not rooted in, the segregation-era policies of unnecessary pro-

gram duplication. Given these obvious alternative non-discrimina-

tory explanations, the students’ complaint “stop[s] short of the line

between possibility and plausibility.” See Emory Univ., 110 F.4th at

1263 (quotations omitted). Granting the motion to dismiss was ap-

propriate.

Now I turn to the students’ contention that FAMU’s curric-

ulum does not provide unique, high-demand programs. I will first

address the students’ allegations concerning FAMU’s engineering

program, then turn to their allegations regarding FAMU’s law

school, before finally analyzing the students’ comparison between

FAMU and FSU. To the extent the Majority concludes that the

students’ allegations regarding the merger of FAMU and FSU’s en-

gineering programs can support a Fordice claim based on

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24-10567 BRANCH, J., Dissenting 21

unnecessary duplication of programs, that argument defies logic.

The 1982 engineering program merger, as alleged, is not traceable

to de jure segregation. A Fordice claim requires showing that a

modern policy is a vestige of segregation. But the joint engineering

program between FAMU and FSU that the students describe is the

exact opposite of segregation: it is an example of educational inte-

gration. Under this program, the joint college of engineering al-

lows students to study side by side as classmates in a shared build-

ing with a shared budget. It would be absurd to permit an inference

that a program like FAMU and FSU’s joint engineering school—

which, based on the alleged facts, promotes collaboration and

shared resources—is rooted in segregation. See Fordice, 505 U.S. at

738–39 (holding that unnecessary program duplication can support

a Fordice claim because it is a continuation of the “separate but

equal” dual system of education that existed during de jure segre-

gation).

Similarly, the defendants’ closure, reopening, and relocation

of FAMU’s law school cannot support a Fordice claim. The alleged

facts (that the defendants relocated FAMU’s law school to Orlando

in a different part of the state than FSU’s law school in Tallahassee)

in this case are easily contrasted with the segregation-era practice

at issue in Knight where program duplication between “geograph-

ically proximate” institutions supported a Fordice claim. Knight, 14

F.3d at 1539.

Unnecessary program duplication can create a Fordice claim

when it is traceable to the segregation-era practice of having

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22 BRANCH, J., Dissenting 24-10567

geographically proximate schools with the same curricular offer-

ings. See Knight, 14 F.3d at 1543–46. In those instances, the lack of

unique programs impedes each school’s ability to attract a diverse

student body. Id. at 1541. The concern that program duplication

will prevent attracting diverse students is alleviated, however,

when, like here, schools serve different geographical regions.

FAMU’s law school opened in 1949 in Tallahassee but closed in

1968. At that time, the defendants transferred the assets of FAMU’s

law school to FSU to be used for FSU’s already-existing law school.

In 2002, however, the defendants reopened FAMU’s law school in

Orlando. According to the complaint, the defendants chose Or-

lando to avoid competition with FSU’s law school in Tallahassee.

The students asserted in a conclusory manner that the closure of

the law school and its subsequent reopening in Orlando 34 years

later are traceable to de jure segregation. The students did not al-

lege any facts in the decades intervening the law school’s closure

and reopening that connect the relocation of FAMU’s law school

to de jure segregation.

Further, in this case, the defendants’ reopening of FAMU’s

law school was not a vestige of segregation; it was a remedy to the

prior closure of the school. And as the students themselves alleged,

the defendants’ motivation for relocating FAMU’s law school was

to avoid the duplication of law schools in Tallahassee. In Orlando,

FAMU’s law school would be better situated to attract a diverse

student body by operating in a different city and thus to build a

reputation beyond its racial history. The reopening of FAMU’s law

school cannot serve as the basis for a Fordice claim because rather

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24-10567 BRANCH, J., Dissenting 23

than furthering segregation-era policies, it serves to mitigate the ef-

fect of segregation-era policies by relocating FAMU’s law school to

a different city hundreds of miles from FSU’s law school. Accord-

ingly, the students have not adequately alleged that the relocation

of the law school can be traced to de jure segregation.

The Majority holds that the students stated a Fordice claim

when they alleged that FSU has more unique, high demand pro-

grams that are not offered at FAMU than the number of unique,

high demand programs FAMU has that are not offered at FSU.

Here, the students alleged that FAMU has four unique, high de-

mand programs that are not offered at FSU, while FSU has 10

unique, high demand programs not offered at FAMU. As an initial

matter, the Majority concedes that our analysis in Knight did not

discuss the number of unique, high demand programs at the rele-

vant historically black and historically white universities. And

Knight certainly did not require state university systems to perfectly

match the number of unique, high-demand programs offered at its

historically black universities to those offered at each of its histori-

cally white universities. 7 See id. at 1542–46. Without any link to a

de jure segregation policy, the students’ Fordice claim based on the

mere difference between the number of unique, high demand

7 In Knight, the defendants conceded that the historically black universities’

limited educational missions were traceable to de jure segregation. 14 F.3d at

1544. But nothing in this case resembles the limited missions at issue in Knight.

According to the students, FAMU’s mission is to operate as a “doctoral/re-

search institution devoted to student success at the undergraduate, graduate,

doctoral and professional levels.”

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24 BRANCH, J., Dissenting 24-10567

programs offered at FAMU and FSU necessarily fails. See id. at 1550

(holding that a challenged policy must be a “vestige of segregation”

to support a Fordice claim).

B. The students failed to state a claim under the Equal

Protection Clause.

The Majority concludes that the students adequately

pleaded an equal protection claim because their allegations—of dis-

parate impact—permit a plausible inference that the defendants

made funding and curricular decisions with discriminatory intent.

I disagree because the students rely solely on conclusory allega-

tions and decades-old OCR communications to attempt to show

the defendants’ discriminatory intent in their funding and curricu-

lar decisions.

To adequately plead a claim for a violation of the Equal Pro-

tection Clause of the Fourteenth Amendment, 8 plaintiffs must al-

lege facts showing an intent to discriminate, not just discriminatory

impact. See Elston v. Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1406

(11th Cir. 1993) (“To establish an equal protection clause violation,

a plaintiff must demonstrate that a challenged action was moti-

vated by an intent to discriminate.”); Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977) (holding that “discrim-

inatory intent . . . is required to show a violation of the Equal Pro-

tection Clause” and “impact alone is not determinative”). The

8 The Equal Protection Clause states that “[n]o State shall . . . deny to any per-

son within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1.

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24-10567 BRANCH, J., Dissenting 25

Majority is wrong that the students adequately pleaded discrimina-

tory intent.

The relevant factors for determining whether a policy was

motivated by discriminatory intent include, but are not limited to

(1) the impact of the challenged law; (2) the historical

background; (3) the specific sequence of events lead-

ing up to its passage; (4) procedural and substantive

departures; . . . (5) the contemporary statements and

actions of key legislators . . . . (6) the foreseeability of

the disparate impact; (7) knowledge of that impact,

and (8) the availability of less discriminatory alterna-

tives.

Greater Birmingham Ministries v. Sec’y of State for Ala., 992 F.3d 1299,

1322 (11th Cir. 2021). Discriminatory intent “implies more

than . . . intent as awareness of consequences. It implies that the

decisionmaker . . . selected or reaffirmed a particular course of ac-

tion at least in part ‘because of,’ not merely ‘in spite of,’ its adverse

effects upon an identifiable group.” 9 Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256, 279 (1979) (citation omitted).

To attempt to show discriminatory intent, the students rely

solely on OCR determinations made between 1970 and 1998—

more than 20 years ago—that FAMU was underfunded and lacked

9 Courts use the terms “discriminatory intent” and “discriminatory purpose”

interchangeably. See, e.g., Arlington Heights, 429 U.S. at 265; Johnson v. Governor

of State of Fla., 405 F.3d 1214, 1223 (11th Cir. 2005) (quoting Hunter v. Under-

wood, 471 U.S. 222, 227–28 (1985)).

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26 BRANCH, J., Dissenting 24-10567

unique curricular offerings, which purportedly put the defendants

on notice that their current actions violated the Constitution. But

those are examples of decades-old notices of discriminatory impact

(not intent); without more, they are legally insufficient to show

that the defendants acted with discriminatory intent with respect

to the modern policies that are the basis of the claims in this case.

See Greater Birmingham Ministries, 992 F.3d at 1323 (rejecting an in-

ference of discriminatory intent when a legislator’s overt prior dis-

crimination lacked a connection to show he acted with discrimina-

tory intent in passing the specific law at issue). And there is no

more. The complaint is devoid of factual allegations that could cre-

ate a connection between the racially disparate impact of the dec-

ades-old policies described in OCR’s findings and the modern fund-

ing and curricular policies at issue here. In fact, the relevant allega-

tions took place years before the challenged funding and curricular

decisions—the students do not rely on any allegations after 1998

that can show the defendants’ discriminatory intent. Apart from

these stale and disconnected OCR findings, the students alleged no

specific sequence of events leading up to the funding or curriculum

policies that can create an inference of discriminatory intent. With-

out more, the students have not properly pleaded an equal protec-

tion claim.

Ultimately, the Majority, pointing to some of the factors

from Greater Birmingham Ministries, infers discriminatory intent be-

cause the defendants had knowledge of a foreseeable future dis-

criminatory impact of their modern policies based on OCR’s dec-

ades-old notice of discriminatory impacts that existed between

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24-10567 BRANCH, J., Dissenting 27

1970 and 1998. Even if that inference were supported by the stu-

dents’ allegations, the students have not adequately pleaded dis-

criminatory intent because discriminatory intent requires showing

more than “intent as awareness of consequences.” Pers. Adm’r of

Mass., 442 U.S. at 279. The Majority does not, and cannot, rely on

anything beyond an inference that the defendants were aware that

certain policies may have inequitable consequences. A foreseeable

discriminatory impact is not enough to show that the defendants

acted with discriminatory intent. Id.

Because there is no basis to infer the defendants acted with

a discriminatory intent, the students did not plead a viable equal

protection claim.

IV. Conclusion

Because the policies at issue in this case are not traceable to

a prior system of de jure segregation and the allegations in the com-

plaint do not permit a reasonable inference that the defendants

acted with discriminatory intent, I would affirm the district court’s

order dismissing the complaint for failure to state a claim. I respect-

fully dissent.