Ayers v. Fordice

REVISED May 16, 1997

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60431

_____________________

JAKE AYERS, JR, Private Plaintiffs; BENNIE G THOMPSON,

United States Congressman, Second Congressional District,

Mississippi

Plaintiffs - Appellants

UNITED STATES OF AMERICA

Intervenor Plaintiff - Appellant

v.

KIRK FORDICE, Governor, Defendants/Senior Colleges; HINDS

JUNIOR COLLEGE, Board of Trustees; UTICA JUNIOR COLLEGE,

Board of Trustees; MISSISSIPPI DELTA JUNIOR COLLEGE; COAHOMA

JUNIOR COLLEGE; STATE OF MISSISSIPPI, Defendants

Defendants - Appellees

v.

LOUIS ARMSTRONG

Movant - Appellant

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________

April 23, 1997

TABLE OF CONTENTS

I. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . 4

II. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . 10

III. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . 12

A. Admissions Policies and Practices . . . . . . . . . 12

1. Background Facts . . . . . . . . . . . . . . . 12

2. Undergraduate Admissions Standards . . . . . . 15

a. District court ruling . . . . . . . . . . 15

b. Arguments on appeal . . . . . . . . . . . 22

c. Analysis . . . . . . . . . . . . . . . . 26

i. Rejection of plaintiffs’ proposals . 28

ii. Reliance on spring screening and

summer remedial program . . . . . . 32

iii. Elimination of existing remedial

courses . . . . . . . . . . . . . . 34

iv. Timing . . . . . . . . . . . . . . . 37

d. Conclusions regarding undergraduate

admissions standards . . . . . . . . . . 38

3. Scholarship Policies . . . . . . . . . . . . . 39

a. District court ruling . . . . . . . . . . 39

b. Arguments on appeal . . . . . . . . . . . 40

c. Analysis . . . . . . . . . . . . . . . . 42

d. Conclusions regarding scholarship

policies . . . . . . . . . . . . . . . . 52

B. Enhancement of Historically Black Institutions . . 53

1. Background Facts . . . . . . . . . . . . . . . 53

2. New Academic Programs . . . . . . . . . . . . 54

a. District court ruling . . . . . . . . . . 54

b. Arguments on appeal . . . . . . . . . . . 60

c. Analysis . . . . . . . . . . . . . . . . 61

d. Conclusions regarding new academic

programs . . . . . . . . . . . . . . . . 67

3. Land Grant Programs . . . . . . . . . . . . . 68

a. District court ruling . . . . . . . . . . 68

b. Arguments on appeal . . . . . . . . . . . 70

c. Analysis . . . . . . . . . . . . . . . . 71

2

d. Conclusions regarding land grant

programs . . . . . . . . . . . . . . . . 73

4. Duplication of Programs . . . . . . . . . . . 73

a. Fordice . . . . . . . . . . . . . . . . . 73

b. District court ruling . . . . . . . . . . 74

c. Arguments on appeal . . . . . . . . . . . 79

d. Analysis . . . . . . . . . . . . . . . . 80

e. Conclusions regarding program

duplication . . . . . . . . . . . . . . . 83

5. Funding . . . . . . . . . . . . . . . . . . . 83

a. District court ruling . . . . . . . . . . 83

b. Arguments on appeal . . . . . . . . . . . 88

c. Analysis . . . . . . . . . . . . . . . . 89

d. Conclusions regarding funding . . . . . . 94

C. Employment of Black Faculty and Administrators . . 94

D. System Governance . . . . . . . . . . . . . . . . . 99

IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 101

3

Before KING, JOLLY, and DENNIS, Circuit Judges.

KING, Circuit Judge:

This case concerns the obligation of the State of

Mississippi and the other defendants to dismantle the system of

de jure segregation that was maintained in public universities in

Mississippi. After we heard the initial appeal of this case in

1990, the Supreme Court established, for the first time, the

standards for determining in the university context whether a

state has met its affirmative obligation to dismantle its prior

de jure system. We now review the district court’s ruling

following trial on remand to determine whether it erred in its

application of these standards.

For the reasons set forth below, we affirm in part, reverse

in part, and remand the case to the district court for further

proceedings consistent with this opinion.

I. BACKGROUND

Mississippi’s system of public four-year universities was

formally segregated by race from its inception in 1848 through

1962, when the first black student was admitted to the University

of Mississippi by order of this court. See Meredith v. Fair, 306

F.2d 374 (5th Cir.), cert. denied, 371 U.S. 828 (1962). The

racial identifiability of Mississippi’s eight public universities

changed little during the decade following the landmark admission

of James Meredith. The student composition of the University of

Mississippi, Mississippi State University, Mississippi University

4

for Women, University of Southern Mississippi, and Delta State

University (collectively, “historically white institutions” or

“HWIs”) remained almost entirely white, while that of Jackson

State University, Mississippi Valley State University, and Alcorn

State University (collectively, “historically black institutions”

or “HBIs”) remained almost entirely black. See United States v.

Fordice, 505 U.S. 717, 722 (1992). The racial identifiability of

these institutions persists to the present.1

Private plaintiffs initiated this class action2 in 1975,

complaining that Mississippi was maintaining a racially dual

system of higher education in violation of the Fifth, Ninth,

Thirteenth, and Fourteenth Amendments to the United States

Constitution, 42 U.S.C. §§ 1981 and 1983, and Title VI of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7. The

United States intervened as plaintiff and alleged violations of

the Equal Protection Clause of the Fourteenth Amendment and Title

VI.

For twelve years the parties attempted to resolve their

differences through voluntary dismantlement of the prior

1

In the fall of 1993, the on-campus undergraduate

enrollment was at least 75% white at each of the HWIs, and at

least 93% black at each of the HBIs.

2

The class was certified by the court as:

[a]ll black citizens residing in Mississippi, whether

students, former students, parents, employees, or

taxpayers, who have been, are, or will be discriminated

against on account of race in . . . the universities

operated by said Board of Trustees.

Ayers v. Allain, 674 F. Supp. 1523, 1526 (N.D. Miss. 1987).

5

segregated system. Unable to achieve ultimate agreement, the

parties proceeded to trial in 1987. The district court ruled

that Mississippi had discharged its affirmative duty to dismantle

the former de jure segregated system of higher education through

its adoption and implementation of good-faith, race-neutral

policies and procedures in student admissions and other areas.

Ayers v. Allain, 674 F. Supp. 1523, 1564 (N.D. Miss. 1987) (Ayers

I). Sitting en banc, this court affirmed. Ayers v. Allain, 914

F.2d 676 (5th Cir. 1990). The United States Supreme Court

granted certiorari. Ayers v. Mabus, 499 U.S. 958 (1991).

The Supreme Court vacated the judgment and remanded for

further proceedings, holding that the mere adoption and

implementation of race-neutral policies was insufficient to

demonstrate complete abandonment of the racially dual system.

Fordice, 505 U.S. at 731, 743. The Court stated that

even after a State dismantles its segregative

admissions policy, there may still be state action that

is traceable to the State’s prior de jure segregation

and that continues to foster segregation. . . . If

policies traceable to the de jure system are still in

force and have discriminatory effects, those policies

too must be reformed to the extent practicable and

consistent with sound educational practices.

Id. at 729. Applying this standard, the Court identified

admissions standards, program duplication, institutional mission

assignments, and continued operation of all eight public

universities as a nonexclusive list of “constitutionally suspect”

remnants of the prior de jure system, “for even though such

policies may be race neutral on their face, they substantially

restrict a person’s choice of which institution to enter, and

6

they contribute to the racial identifiability of the eight public

universities. Mississippi must justify these policies or

eliminate them.” Id. at 733. The Court directed that these and

“each of the other policies now governing the State’s university

system that have been challenged or that are challenged on

remand” be examined “in light of the standard that we articulate

today.” Id.

On remand, the district court ordered each party to submit

proposed remedies “to resolve the areas of the State’s liability

pursuant to the Supreme Court mandate.” Without conceding

liability, defendant Board of Trustees of State Institutions of

Higher Learning (the “Board”)3 responded by presenting a detailed

proposal for modification of the higher education system. This

proposal contained, among other provisions, uniform standards of

admission for all universities, as well as a plan to merge Delta

State University and Mississippi Valley State University into one

institution to serve students in the Mississippi Delta.4

The private plaintiffs and the United States (collectively,

“plaintiffs”) responded by insisting that the range of

3

The Board is responsible for the management and control

of the eight public universities at issue in this case. MISS.

CODE ANN. § 37-101-1 (1996). Its general powers and duties

include, inter alia, managing all university property, disbursing

funds, establishing standards for admission and graduation, and

supervising the functioning of each institution. See id. § 37-

101-15.

4

The Board submitted its original proposal to the district

court on October 22, 1992. The Board submitted a modified

proposal shortly before trial. The proposed admissions standards

and merger plan were contained in both.

7

constitutionally suspect policies and practices to be examined on

remand had yet to be determined.5 Pursuant to a subsequent court

order, plaintiffs identified the following policies and practices

for examination: admissions standards that allegedly deny black

students equal access to higher education and tend to channel

black students to the HBIs; the use of ACT scores as a basis for

awarding undergraduate scholarships at the HWIs; maintenance of

institutional mission assignments that largely follow historical

racial designations; funding policies that disproportionately

benefit the HWIs; allocation of academic programs that is

unfavorable to the HBIs; allocation of land grant programs

between Alcorn State and Mississippi State that is unfavorable to

Alcorn; duplication of the HBIs’ programs and course offerings at

the HWIs; maintenance of facilities at the HBIs that are inferior

to those at the HWIs; employment practices that perpetuate the

racial identifiability of the universities and compensate faculty

at the HBIs at a lower rate than faculty at the HWIs; maintenance

of all eight institutions; and practices that limit the

participation of black persons in system governance. Trial

commenced on May 9, 1994, following lengthy attempts at

settlement.

After ten weeks of testimony, the district court made

5

Plaintiffs have alleged that the State’s policies and

practices violate both the Constitution and Title VI. As the

Supreme Court noted in Fordice, the reach of Title VI extends no

further than the Fourteenth Amendment. 505 U.S. at 732 n.7. We

therefore follow the approach of the Supreme Court and treat the

issues in this case as they are implicated under the

Constitution. Id.

8

additional findings of fact and conclusions of law. The district

court found vestiges of de jure segregation in the areas of

undergraduate admissions, institutional mission assignments,

funding, equipment availability and library allocations, program

duplication, land grant programs, and number of universities.

Ayers v. Fordice, 879 F. Supp. 1419, 1477 (N.D. Miss. 1995)

(Ayers II).6 The district court entered a remedial decree on

March 7, 1995.7

The remedial decree enjoins defendants from maintaining

remnants of the prior system and engaging in practices impeding

desegregation. Specific relief includes adoption of the uniform

admissions standards proposed by the Board and allocation of

additional resources to Jackson State University and Alcorn State

University. The district court did not order implementation of

the Board’s proposal to consolidate Delta State University and

Mississippi Valley State University. The decree establishes a

Monitoring Committee to monitor implementation of the terms and

obligations imposed by the decree. The Monitoring Committee is

to consist of three disinterested persons with experience in the

field of higher education, agreed upon by the parties and

6

In addition, the district court found that the practice

of maintaining participation in racially identifiable athletic

conferences is traceable to de jure segregation but does not have

segregative effects. Athletic programs are not an issue in this

appeal.

7

The remedial decree is set forth in its entirety in the

opinion below, Ayers II, 879 F. Supp. at 1494-96. We limit our

discussion to those aspects of the remedial decree pertinent to

this appeal.

9

appointed by the court. The Monitoring Committee is to receive

and evaluate reports required of defendants and make

recommendations to the district court, which has retained

jurisdiction over the action.8

Plaintiffs now contend that the district court left in place

practices that are traceable to the prior dual system and that

have discriminatory effects and adopted reforms proposed by the

Board without examining the soundness or practicability of

alternative, less discriminatory proposals. Issues on appeal

encompass undergraduate admissions standards, scholarship

criteria, enhancement of historically black universities, system

governance, and employment.9 No party appeals the district

court’s rejection of the Board’s consolidation proposal.

II. STANDARD OF REVIEW

The standard set forth by the Supreme Court in Fordice

guides our review of the district court’s judgment. Fordice

established that “a State does not discharge its constitutional

obligations until it eradicates policies and practices traceable

8

In an order entered on March 1, 1996, the district court

stayed appointment of the Monitoring Committee, along with any

reports required to be made to the Monitoring Committee, pending

completion of “the appellate process.” We see no reason why the

stay contemplated by the March 1 order should continue. We

assume that the stay will be vacated and that the Monitoring

Committee will be activated promptly.

9

The scope of private plaintiffs’ argument on appeal is

broader in some respects than that of the United States, although

the two positions overlap considerably. We note distinctions

where relevant.

10

to its prior de jure dual system that continue to foster

segregation.” 505 U.S. at 728. More specifically,

[i]f the State perpetuates policies and practices

traceable to its prior system that continue to have

segregative effects -- whether by influencing student

enrollment decisions or by fostering segregation in

other facets of the university system -- and 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. We have read Fordice to require that “each suspect

state policy or practice be analyzed to determine whether it is

traceable to the prior de jure system, whether it continues to

foster segregation, whether it lacks sound educational

justification, and whether its elimination is practicable.”

United States v. Louisiana, 9 F.3d 1159, 1164 (5th Cir. 1993).

The State’s liability depends upon these factors. Id.10

Once liability is found, the offending policies and

practices “must be reformed to the extent practicable and

consistent with sound educational practices.” Fordice, 505 U.S.

at 729. “[S]urely the State may not leave in place policies

rooted in its prior officially segregated system that serve to

maintain the racial identifiability of its universities if those

policies can practicably be eliminated without eroding sound

10

At this stage in a desegregation case, a state’s

“liability” consists of its obligation to remedy remnants of a

prior de jure system for which constitutional liability has

already been established. In Louisiana, we used the term

“liability” in this sense of an affirmative obligation to remedy

vestiges of the prior system. In the interest of consistency, we

continue to use “liability” in this sense here, albeit with the

understanding that the liability of the State of Mississippi, as

a threshold matter, stems from its operation of a de jure system.

11

educational policies.” Id. at 743. Accordingly, we have

interpreted the directives of Fordice “as recognizing the need to

consider the practicability and soundness of educational

practices in determining remedies as well as in making an initial

determination of liability.” Louisiana, 9 F.3d at 1164.

We apply the directives of Fordice in conjunction with

general standards of appellate review. This appeal challenges

elements of the district court’s remedial decree and implicates

several of its findings and conclusions. We do not disturb the

district court’s findings of fact unless they are clearly

erroneous, although we freely reassess its conclusions of law

under the de novo standard of review. Ross v. Houston Indep.

Sch. Dist., 699 F.2d 218, 226 (5th Cir. 1983). A third standard

applies to our review of the remedial decree itself. A

desegregation remedy is an exercise of a trial court’s equitable

power and as such is reviewable, within the context of Fordice,

for abuse of discretion. Cf. Valley v. Rapides Parish Sch. Bd.,

702 F.2d 1221, 1225 (5th Cir.), cert. denied, 464 U.S. 914

(1983).

III. DISCUSSION

A. Admissions Policies and Practices

1. Background Facts

In 1961, less than one week after James Meredith applied to

the University of Mississippi, the Board adopted a policy

requiring all applicants for undergraduate admission to any state

12

institution of higher education to take the American College Test

(“ACT”). Ayers I, 674 F. Supp. at 1530-31. Several months

later, the Board authorized each university to set a minimum ACT

score for eligibility for admission. Id. at 1531. By 1963, the

University of Mississippi, Mississippi State University, and the

University of Southern Mississippi required an ACT composite

score of at least 15 for all freshmen applicants. Id. At the

time, the average ACT score among white students was 18, while

that for black students was 7. Fordice, 505 U.S. at 734.

When this case was tried initially in 1987, admissions

standards for first-time freshman varied along with the

historical racial identifiability of each institution. Four HWIs

continued to require a composite score of at least 15 on the ACT

for automatic admission; the other HWI, Mississippi University

for Women, required a score of 15-17 together with a high school

grade point average of at least 3.0 on a 4.0 scale, or a score of

at least 18. Ayers I, 674 F. Supp. at 1533-34. The HBIs

required a minimum ACT composite score of 13. Id. at 1534.11

Based on the undisturbed factual findings of the district

court -- and unmoved by lower court determinations that the

admissions standards derived from policies enacted in the 1970s

to redress the problem of student unpreparedness -- the Supreme

Court concluded in Fordice that the policies were traceable to

11

The HBIs maintained more liberal exceptions policies

than the HWIs, although no university could enroll a student with

an ACT score below 9. See Ayers I, 674 F. Supp. at 1533-34.

13

the de jure system, were originally adopted for a discriminatory

purpose, and continued to have discriminatory effects. 505 U.S.

at 734. The Court found that the minimum ACT requirements

“restrict[ed] the range of choices of entering students as to

which institution they may attend in a way that perpetuate[d]

segregation.” Id. Those students who received ACT scores too

low to meet the admissions requirements at the HWIs were

restricted to the HBIs or community colleges if they wanted a

higher education. Id. at 734-35. As the Court stated,

“[p]roportionately more blacks than whites face[d] this choice:

In 1985, 72 percent of Mississippi’s white high school seniors

achieved an ACT composite score of 15 or better, while less than

30 percent of black high school seniors earned that score.” Id.

at 735. The Court also deemed “constitutionally problematic” the

fact that the State denied automatic admission if an applicant

did not achieve the minimum ACT score specified for a particular

institution, without also considering high school grades as an

additional factor in predicting college performance. Id. at

736.12

Plaintiffs’ challenges on remand included the use of

differential ACT-based admissions policies at the HWIs and HBIs,

as well as the use of ACT cutoff scores and alumni connection in

12

The Court found significant the fact that the disparity

between black and white students’ grade averages was much

narrower than the gap between their average ACT scores,

suggesting that an admissions formula that included grades would

increase the number of black students eligible for automatic

university admission. Fordice, 505 U.S. at 736-37.

14

the award of undergraduate scholarships at the HWIs.13 The

district court’s ruling on each of these issues is now before us

on appeal.

2. Undergraduate Admissions Standards

a. District court ruling

The district court concluded that “[u]ndergraduate

admissions policies and practices are vestiges of de jure

segregation that continue to have segregative effects.” Ayers

II, 879 F. Supp. at 1477. More specifically, the court found

that the admissions standards in place at the time of the 1987

trial were traceable to the prior de jure system and continued to

have segregative effects in a system where racially identifiable

institutions offer numerous duplicative academic programs. Id.

at 1434. The court held that defendants had a duty to eradicate

use of the ACT cutoff score “as a sole criterion for admission to

the system when the ACT is used in conjunction with differing

admissions standards between the HBIs and HWIs.” Id.14

13

Plaintiffs also challenged policies and practices

pertaining to admissions exceptions. The district court’s

finding that no such policies or practices are traceable to the

de jure system is not contested on appeal.

14

The court did not rule that use of an ACT cutoff is per

se unlawful. “Rather, its particular use in any circumstance

must be examined to consider whether as a component of the policy

challenged, the same is traceable to prior de jure segregation.”

Ayers II, 879 F. Supp. at 1434.

Significantly, despite plaintiffs’ claims that the addition

of ACT scores to high school grades as a predictor of freshman

grades improves the prediction only marginally, the district

court concluded that the ACT was “a sound component of the

admissions decision for the reason that the ACT, in combination

with high school grades, remains a better predictor of academic

15

Although admissions standards had been modified somewhat by

the time of the trial on remand, the district court found that

they “basically utilized a version of the 1987 standards with

various exceptions.” Id. at 1431. In 1989, the ACT was replaced

by the Enhanced ACT. Id. at 1430. Scores on the two tests are

not equivalent; the American College Testing Program accordingly

publishes concordance tables that correlate scores on the old ACT

and Enhanced ACT according to percentile rank.15 The

introduction of the Enhanced ACT prompted the Board to solicit

recommendations from the eight universities for revised

admissions standards based on the new test. Each HWI recommended

use of an Enhanced ACT score of 18 for regular admission, which

approximated the previous standard of an ACT score of 15. Each

HBI recommended use of an Enhanced ACT score of 15 for regular

admission, the concordant value of which was 11 on the old ACT.

Because the HBIs had previously required an ACT score of at least

13 for regular admission, this recommendation represented an

effective lowering of admissions standards at these

institutions.16 Throughout the system, students not qualifying

performance than either criterion alone.” Id. at 1482. This

conclusion is supported by the record.

15

An ACT score of 15, for instance, has a concordant value

of 18 on the Enhanced ACT, meaning that a score of 15 on the ACT

would be in the same percentile ranking as a score of 18 on the

Enhanced ACT.

16

Private plaintiffs quarrel with the district court’s

characterization of the change in the admissions standard at the

HBIs as a “lowering,” arguing that, viewed in historical context,

this change merely restored some of the access that had been

foreclosed by an earlier increase in minimum ACT requirements.

16

for regular admission could be admitted as “high risk”

exceptions. The recommended Enhanced ACT scores for high risk

applicants ranged from 14 to 17 at the HWIs, and from 12 to 14 at

the HBIs. The Board approved all recommendations.17

Differential admissions standards thus persisted in the system

through the 1994 trial and, as found by the district court,

“resulted in the ‘channeling effect’ described in Fordice.” Id.

at 1434. The district court’s remedial order responded to the

standards in place in 1994.18

Defendants proposed, and the district court ordered

implementation of, new admissions criteria that standardize

requirements at all eight universities beginning with

applications for admission in the fall of 1996. The new criteria

We review the district court’s ruling against this backdrop and

in light of evidence concerning educational soundness.

17

The district court noted that although the lower ACT

requirements at the HBIs were originally proposed by the HBI

presidents, “it is the Board’s responsibility to manage the

higher education system in accordance with constitutional

principles.” Ayers II, 879 F. Supp. at 1434.

18

While it found that admissions policies continued to

have segregative effects, the district court also found that

“there is no per se policy or practice of minimizing the

participation of African-Americans in the [higher education]

system.” Ayers II, 879 F. Supp. at 1435. The court found

credible evidence indicating that defendants had made substantial

progress toward increasing minority access to higher education.

See id. at 1433, 1435. In Mississippi, the ratio of the State’s

share of the nation’s black enrollment in public four-year

institutions to its share of the nation’s black population is

more favorable than the national mean and that of many non de

jure states. See id. at 1435. Private plaintiffs appear to

contend that the district court’s finding of no current per se

policy of limiting access to the higher education system is

clearly erroneous. We conclude that any such contention is

without merit.

17

grant “regular admission”19 to applicants who have (1) a GPA of

at least 3.20 in a designated core curriculum, (2) a GPA of at

least 2.50 in the core curriculum or class rank in the top 50%

and an Enhanced ACT score of at least 16, or (3) a GPA of at

least 2.0 in the core curriculum and an Enhanced ACT score of at

least 18. Id. at 1477-78.

The admissions policy ordered by the district court provides

an important alternative to regular admission through a spring

screening and summer remedial program for applicants who do not

meet the requirements for regular admission. Students

participating in the spring screening process will take the

Mississippi College Placement Examination (the “accuplacer”)

during the spring of their senior year in high school. Based

upon these scores, Enhanced ACT subtest scores, and counselor

interviews, students will either be admitted for the fall

semester or invited to participate in the summer remedial

program.20 The summer program is designed to provide ten to

eleven weeks of remedial instruction in reading, writing, and

mathematics, taught both in traditional classroom settings and

19

“Regular admission” is the term used throughout the

district court opinion, and will be used herein, to denote

automatic admission based on the criteria listed in the text, as

distinguished from admission via the spring screening and summer

remedial program, discussed infra. See Ayers II, 879 F. Supp. at

1477-78 & n.297.

20

It appears, based on the language of the Board’s

proposal and testimony during trial, that some applicants who

participate in spring screening may not be admitted to the summer

remedial program and will be advised to pursue other educational

options.

18

through computer-assisted individual components. Id. at 1478.

In addition, the program plan incorporates cultural and

recreational activities to “climatize” students to the college

campus. Id.21 Those students who successfully complete the

summer program, by passing at minimum the remedial English and

mathematics courses, will be admitted in the fall.

The district court found that “the new admissions standards

through their uniformity will eliminate the prior segregative

effects of the previous differential admissions standards between

the HBIs and HWIs, noted by the Supreme Court in Fordice.” Id.

at 1481. The district court found that as compared with the

standards litigated in the 1987 trial, the new standards would

result in an overall increase in the number of black students

eligible for regular admission to the university system.22 As

21

Although the district court made no specific findings in

this regard, the undisputed evidence indicates that the summer

remedial program is a departure from past remedial practices

within the university system. Prior to the district court’s

order, full semester remedial courses were offered at each

university. Although students who are granted admission via the

summer program must participate in a year-long academic support

program designed to provide individualized support for marginally

prepared students enrolled in regular academic credit courses,

apparently many of the remedial courses previously offered during

the academic year are to be eliminated under the new plan. See

Part III.B.2.c.iii infra.

22

The new standards were predicted to have the following

impact:

(a) the pool of black students eligible for regular

admission to a public HWI will increase from

approximately 32.4% to 52.5%; (b) the pool of black

students eligible for regular admission at the HBIs in

1995 will be increased from approximately 45.3% to

52.5%; (c) the pool of black students eligible for

admission to the system as a whole will also increase

19

compared with the standards in place at the time of the 1994

trial, which were less stringent than in 1987 as a result of the

1989 changes in requirements at the HBIs, the new standards would

result in an overall decline in the percentage of black students

eligible for regular admission to the system.23 The district

court noted, however, that the summer program offers a distinct

opportunity for applicants to gain admission. Id. at 1479.24

The court found the summer program to be “credible and

educationally advanced. In its proposed form, it is considered

by its developers as an educationally sound developmental

system.” Id. at 1481. The district court concluded that

[w]hile the new admissions standards may reduce

the number of black students eligible to be admitted to

the system without remedial courses required, it is not

evident that the new standards will actually reduce the

number of black students ultimately admitted to the

system as either regular or remediated admittees.

Id.

Finally, although the State’s community college system is

under the proposed 1995 standards as compared with the

1987 standards.

Ayers II, 879 F. Supp. at 1479.

23

While 68.2% of black high school graduates who took the

ACT were eligible for regular admission to some university in the

system at the time of the 1994 trial, the new standards were

projected to reduce this figure to 52.5% or 50.7%. Ayers II, 879

F. Supp. at 1479.

24

The district court stated this finding in terms of the

“summer program” only. We note that, as described by the

district court and in the record, the spring screening program

can lead to admission for the fall semester without participation

in the summer remedial program. See Ayers II, 879 F. Supp. at

1478.

20

the subject of a separate lawsuit, the district court made

findings and ordered relief in this regard because the community

college system is relevant to the issue of access to higher

education. The court found evidence that the community college

system “can have an impact on the admissions policies of the

universities and their ability to further diversify institutions

of higher learning.” Id. at 1475. The court also found,

however, that the community college system in Mississippi is not

providing remediation for students unprepared for four-year

institutions “to any great degree.” Id. The district court

apparently linked this to at least two factors. First, in

contrast to the open admissions policy that prevailed at all

community colleges when this case was tried in 1987, some

community colleges now require minimum ACT scores for admission

to certain programs. Id. at 1474-75.25 Second, the

“overwhelming majority” of students who start at the community

college level do not transfer to four-year universities. Id. at

1475. The University of Southern Mississippi has the highest

proportion of transfer students in its student body, largely

attributable to its recruiting efforts and articulation

agreements with several community colleges in surrounding

regions. Id. Black students transfer at a significantly lower

25

The use of ACT cutoffs for admission to community

colleges is not an issue in this case, and the district court did

not make findings or conclusions with respect to the

constitutionality of this practice. Accordingly, we do not

address this aspect of the community college system in our

opinion.

21

rate than whites, possibly because a high percentage of black

students in community colleges are enrolled in two-year

vocational programs.

The district court concluded that the State “is losing a

valuable resource in not coordinating the admissions requirements

and remedial programs between the community colleges and the

universities.” Id. The remedial decree contains a provision

ordering the Board “to study the feasibility of establishing

system-wide coordination of the community colleges in the State

in the areas of admissions standards and articulation

procedures,” and to report its findings to the Monitoring

Committee. Id. at 1496.

b. Arguments on appeal

The district court’s finding that undergraduate admissions

policies and practices are vestiges of de jure segregation that

continue to have segregative effects is not contested on appeal.

Plaintiffs do contest the remedy thereupon ordered.

Plaintiffs’ challenge to the admissions remedy has two

parts. First, plaintiffs argue that the district court’s

adoption of the Board’s proposed standards was improper because

these standards will significantly reduce the number of black

students eligible for regular admission to the university system,

and thereby disproportionately burden black students with a loss

of educational opportunity. Plaintiffs assert that the district

court was obligated by Fordice to consider the educational

soundness of alternative proposals that would have excluded fewer

22

black students, but failed to do so.

Second, plaintiffs argue that the district court’s reliance

on the spring screening and summer remedial program to compensate

for the projected decline in regular admission of black students

was inappropriate because the program was untested and

incompletely defined at the time of trial. Plaintiffs contend

that although the district court found the summer program to be

“credible and educationally advanced,” it did not specifically

find that the program would be an effective means of identifying

students capable of succeeding in college or that it could

achieve the same results as “existing remedial programs.”26 In

addition, plaintiffs argue that the summer program is not a

viable option for the many black students who must work during

the summer in order to afford to go to college in the fall, and

that the community college system currently does not provide an

adequate alternative. Plaintiffs therefore argue that the Board

should be required to maintain existing remedial courses and to

adopt standards that minimize any reduction in the number of

black students eligible for admission, at least during the period

that the summer program is being tested and the community college

26

We understand “existing remedial programs” to mean the

various combinations of remedial, or basic skills, courses and

other forms of educational assistance, such as tutoring and

counseling, that have been offered by the eight universities. In

this record, “remedial education” and “remediation” are to some

degree used interchangeably with “developmental education” and

“developmental studies.” We use the term “remedial programs” to

refer to the entire range of such educational assistance, and the

term “remedial courses” to refer to courses that teach basic,

pre-college skills.

23

system undergoing change.

Although their criticisms of the new admissions standards

coincide, private plaintiffs and the United States advocate

different admissions policies as alternatives. Private

plaintiffs proposed below and re-urge here adoption of a tiered

admissions policy, in which admissions requirements vary along

with the mission of each university,27 with the most accessible

tier having “open admissions.” By “open admissions,” private

plaintiffs mean a policy of granting admission to students with a

high school diploma and ACT score of 10. Id. at 1480. Under

private plaintiffs’ proposal, the three comprehensive

universities would use the admissions standards proposed by the

Board, and Jackson State University would have open admissions

for eight years with the option thereafter of gradually raising

admissions standards to the level prevailing at the comprehensive

universities. Id. Existing remedial programs would be

strengthened in this scheme.

The United States proposed below and re-urges here an

admissions policy, which was presented to the Board in 1992 but

27

The eight universities are grouped into three classes

according to their programmatic mission. University of

Mississippi, University of Southern Mississippi, and Mississippi

State University are “comprehensive” universities, which offer

the greatest range and highest level of degree programs. Jackson

State University has an “urban” mission to serve the urban

community of Jackson, Mississippi, in which it is located.

Alcorn State University, Delta State University, Mississippi

University for Women, and Mississippi Valley State University are

“regional” universities that focus primarily on undergraduate

education. In private plaintiffs’ framework, the regional

universities would constitute the most accessible tier.

24

never adopted, in which regular admission would be granted to

students achieving (1) a 2.0 GPA in the core curriculum and a

minimum of 16 on the Enhanced ACT or (2) a 2.50 GPA in the core,

a ranking in the top 50% of the class, and a minimum of 13 on the

Enhanced ACT.28 The United States contends that under this

standard, an estimated 73.6% of black students who took the ACT

would qualify for admission, as compared to 52.5% or 50.7% under

the proposal adopted by the district court. The United States

states that “ACT predictive data indicate that, at the [HBIs],

where remedial instruction was given, freshmen with these

qualifications could be expected to achieve at least a C

average.” U.S. Br. at 12.

Defendants argue that the new admissions criteria wholly

eliminate prior policies traceable to de jure segregation.

Defendants contend that the new admissions standards sufficiently

address the concerns articulated in Fordice because they do not

differentiate between universities according to historical racial

designation and do not rely on the ACT as the sole criterion for

admission. Defendants argue that under Fordice, the traceable

admissions policy was the Board’s particular use of differential

ACT cutoff scores, which effectively channeled black students to

the HBIs, and not use of the ACT per se. Accordingly, defendants

contend that the new policy is not traceable to the prior de jure

28

The district court noted that the United States “has

also suggested adoption of a 2.5 overall GPA for admission to all

universities.” Ayers II, 879 F. Supp. at 1480. The United

States does not urge this standard on appeal.

25

system and may be implemented because the record discloses that

it is educationally sound and was not adopted for a

discriminatory purpose. While defendants maintain that Fordice

does not require the district court to select the educationally

sound alternative with the least discriminatory effect, they

argue that even if the district court did have such an

obligation, its findings regarding the segregative effect and

educational soundness of the new admissions standards effectively

discharged it.

c. Analysis

The district court’s findings that the new criteria for

admission are educationally sound and will not perpetuate

segregation within the system are not challenged on appeal.

Plaintiffs contend, rather, that the district court erred by

failing to consider the educational soundness of proposals that

would have resulted in a smaller reduction in the number of black

students excluded from regular admission.

We agree with plaintiffs that it would be inappropriate to

remedy the traceable, segregative effects of an admissions policy

in a system originally designed to limit educational opportunity

for black citizens by adopting a policy that itself caused a

reduction in meaningful educational opportunity for black

citizens. We do not, however, understand the district court to

have done so. The district court considered and rejected

alternative proposals as educationally unsound, and expressly

contemplated that the remedial route to admission could alleviate

26

any potential disproportionate impact on those black students who

are capable, with reasonable remediation,29 of doing college

level work.

We understand the district court to have determined, in the

specific context of formulating an appropriate remedial decree in

this case under Fordice, that access to higher education must be

provided only to those applicants who can demonstrate, based on

educationally sound and constitutionally permissible indicators,

an ability (with reasonable remediation) to do college level work

and who therefore have a real prospect of earning a degree.30

The court found that admission of students unprepared to do

college level work may result in significant attrition

accompanied by unprofitable debt accumulation. Ayers II, 879 F.

Supp. at 1435.31 Fordice does not require that all students who

29

The record reflects that each of the universities at

issue here has for many years recognized that remediation is

appropriate to enable certain students successfully to complete a

college education. The amount of remediation that has been

provided has varied among the universities. We recognize that

how much remediation is appropriate or “reasonable” is informed

by concepts of practicability and educational soundness.

30

All Mississippi universities at issue here require

students to achieve at least a C average in order to graduate.

Indeed, as indicated in our discussion below, all parties key

their arguments regarding the educational soundness of

alternative admissions proposals to this standard.

31

The court found that Louisiana institutions, which

maintain open admissions, “suffer from a very high attrition rate

resulting in students owing one, two or three years of college

expenses and having little or nothing to show for it.” Ayers II,

879 F. Supp. at 1435. Defendants’ expert, Dr. James Wharton,

testified that access to four-year institutions in Louisiana is

“not meaningful access because we also have tremendous attrition

and students get hurt in that attrition.” Likewise, Dr. Hunter

Boylan testified that “[a]ccess without an opportunity to succeed

27

would have been admitted under the prior, unconstitutional

admissions standards be admitted under the reformed admissions

standards without regard to the educational soundness of the

reformed standards. Instead, the district court’s mandate under

Fordice was limited to reforming traceable, segregative policies

“to the extent practicable and consistent with sound educational

practices.” 505 U.S. at 729.32 Having found admissions policies

and practices to be traceable to the de jure system and to have

present segregative effects, the district court properly focused

its consideration of alternative admissions policies on their

educational soundness and potential to eliminate existing

segregative effects; its focus, in turn, on ability to do college

level work is consistent with both the evidence as presented by

plaintiffs and Fordice.

i. Rejection of plaintiffs’ proposals

isn’t really access. If you have an open door it quickly becomes

a revolving door.”

32

The Court in Fordice declined to adopt a standard that

would require the State to eliminate insofar as practicable all

present discriminatory effects of the prior system:

To the extent we understand private petitioners to urge

us to focus on present discriminatory effects without

addressing whether such consequences flow from policies

rooted in the prior system, we reject this position.

. . . Though they seem to disavow as radical a remedy

as student reassignment in the university setting,

their focus on “student enrollment, faculty and staff

employment patterns, [and] black citizens’ college-

going and degree-granting rates” would seemingly compel

remedies akin to those upheld in Green v. School Bd. of

New Kent County were we to adopt their legal standard.

505 U.S. at 730 n.4 (citations omitted) (second alteration in

original); see also id. at 732 n.6.

28

The district court set forth in detail the respective

admissions standards proposed by private plaintiffs and the

United States. See Ayers II, 879 F. Supp. at 1479-80. Although

the district court credited expert testimony indicating that

differential or tiered admissions standards are both sound and

routinely used, id. at 1482, it did not adopt private plaintiffs’

proposal in light of its finding that the open admissions

component of this proposal was educationally unsound. Id. at

1481-82. The district court found that

universities across the nation generally are moving

toward higher admissions requirements, not lower ones.

According to the testimony, students in working toward

goals will usually do that which is expected of them.

If they believe they need not prepare themselves for

college by taking the core curriculum in high school,

they will not do so. Such unpreparedness may bring

them to college campuses unable to execute the rigors

of college work and result in low retention rates,

college debt accumulations and years expended with no

degrees. . . . It has also been shown that institutions

of higher learning which open their doors to unprepared

students via open admissions not only do a disservice

to many of the admittees, but can lower the quality

and, concurrently, the prestige of the institutions

generally.

Id. at 1482-83. These findings are not clearly erroneous, and

the district court did not abuse its discretion in rejecting

private plaintiffs’ proposal.

Even assuming that tiered admissions could be implemented

without open admissions as a component thereof, it was not an

abuse of discretion in this context for the district court to opt

instead for a policy based on uniform standards. In the

Mississippi system of higher education, differential admissions

criteria were rooted in the de jure past and fostered both

29

segregation of the races and the public perception that the

institutions with lower standards -- the HBIs -- were of inferior

quality. Id. at 1477, 1486. A tiered system would continue to

differentiate among institutions based on their respective

missions. See id. at 1482. In light of the history of

differential admissions in Mississippi higher education, and in

light of its finding that policies and practices governing the

missions of the universities are traceable to de jure segregation

and continue to have segregative effects, the district court was

within its discretion to unify standards across institutions.

The standards proposed by the United States met this

interest in uniformity, but were fixed at a level that the

district court found to be educationally unsound. Under the

United States’s proposal, students with a 2.5 GPA and a class

rank in the top 50% would qualify for regular admission with an

Enhanced ACT score of 13. While this formula adds high school

grades and class rank into the eligibility determination, it

nevertheless represents a lowering of the ACT score requirement

from even post-1989 levels at the HBIs. In contrast, students

with identical qualifications would need an Enhanced ACT score of

16 to qualify for regular admission under the Board’s proposal.

The district court concluded that the requirements for regular

admission under the Board’s proposal were “quite moderate,” and

stated that it “does not find persuasive or educationally sound

the adoption of open admissions or continually lowering

admissions standards, as was done at the HBIs after the 1987

30

trial.” Id. We understand this finding to encompass the

standards endorsed by the United States.

Both plaintiffs and defendants cite ACT predictive data in

support of their respective proposals. The United States points

out that such data indicates that students with the minimum

qualifications they propose would be expected to achieve at least

a C average by the end of their freshman year at each of the

HBIs. We note that such students are predicted to complete their

freshman year with grades significantly below a C average, the

minimum required for graduation, at any of the HWIs. See

PP 39-R. Defendants highlight a different aspect of the same

predictive data, which the district court apparently found

persuasive: students with the minimum qualifications proposed by

the Board would be expected to complete their freshman year with

a C average or slightly below at each of the HWIs. The district

court’s finding that the Board’s proposed standards are “quite

moderate” is indeed supported by the evidence. On this record,

the district court could fairly conclude that it would be

educationally unsound to adopt an admissions policy under which

students could do college level work at only three institutions

in the system.33 We realize that no set of standards is without

its flaws. Significantly, as we discuss below, the standards

that the district court did adopt provide an alternative route to

33

Under the United States’s proposal, the three

institutions at which students could do college level work are

the HBIs. The standards proposed by the United States therefore

could have the perverse, albeit unintended, effect of

perpetuating the channeling effect described in Fordice.

31

admission that does not rely on ACT scores whatsoever. The

district court’s decision to order implementation of this system,

rather than dilute standards for regular admission, was a proper

exercise of its discretion.

ii. Reliance on spring screening and summer

remedial program

The district court recognized the likelihood that the

Board’s standards would reduce the number of black students

eligible for regular admission as compared to then-prevailing

standards,34 and chose to adopt them only in conjunction with the

additional opportunity to gain admission through the spring

screening and summer remedial program. The district court was

unable to conclude that the new standards, which provide an

alternative route to admission that does not rely on ACT scores

whatsoever,35 would actually reduce the total number of black

students eligible for admission either as regular or remediated

admittees. In light of the district court finding that lowering

admissions standards “as was done at the HBIs after the 1987

trial” is educationally unsound, the court apparently determined

that to the extent any reduction in the number of black students

eligible for admission relative to post-1989 standards does take

34

On the other hand, the district court found that under

the Board’s standards, the number of black students eligible for

regular admission would increase relative to standards in

existence at the time of trial in 1987. See Ayers II, 879 F.

Supp. at 1479.

35

According to the Board, any high school graduate,

regardless of academic performance, may participate in spring

screening. There is no requirement that participants in spring

screening take the ACT. Bd. R-202.

32

place, it may reflect the educational unsoundness of prior

policies. As contemplated, the new standards should result in

the identification and admission of those applicants who, with

reasonable remediation, can do college level work. This is

consistent with Fordice’s mandate of a reformed admissions policy

that is practicable and educationally sound.

The district court also recognized that the spring screening

and summer remedial program was untested and its standards not

fully established at the time of trial. See id. at 1478-79,

1481. We think that the program was sufficiently defined that

the district court did not abuse its discretion in ordering its

implementation. If, however, as plaintiffs suggest may be the

case,36 the spring and summer program is unable to any

significant degree to achieve its intended objectives of

identifying and admitting otherwise eligible applicants -- i.e.,

applicants who could, with reasonable remediation, successfully

complete a regular academic program -- for whatever reason, then

the program must be reevaluated.37 The district court’s proper

36

In its Motion to Expedite the Appeal, the United States

presents recently discovered evidence concerning the first year’s

implementation of the new standards and the spring and summer

program, which may demonstrate that the new standards exclude a

significant percentage of black students who would have been

eligible for regular admission at the time of the 1994 trial, and

that the spring and summer program offers limited ameliorative

potential. Such evidence, however, is not part of the record

before us and we do not consider it in any substantive way for

purposes of this appeal.

37

The district court’s conclusion that the Board’s

obligation to graduating high school students does not encompass

“students ineligible for regular admission under its proposal,

who do not choose to participate in a screening process for

33

retention of jurisdiction over this action indicates its intent

to examine this important component of the admissions system once

the relevant data becomes available.38 If the district court

ultimately concludes that the spring screening and summer

remedial program (as it may be modified) is unable to any

significant degree to achieve its objectives, then the court

should, if possible, identify and implement another practicable

and educationally sound method for achieving those objectives.

iii. Elimination of existing remedial courses

We have thus far addressed the spring and summer program as

a component of the reformed admissions policy. We turn now to

the argument made by the plaintiffs that the district court erred

in relying upon the summer remedial program to replace the

existing remedial courses in the absence of a finding that the

summer program could achieve the same results as the

universities’ existing remedial courses in enabling students to

succeed in and graduate from college.

We note in this connection that the plan proposed by the

Board provides that “[d]evelopmental studies are only offered

academic placement analysis,” Ayers II, 879 F. Supp. at 1481, is

too sweeping insofar as it may include students who, with

reasonable remediation, are capable of doing college level work

but who self-select out of the spring or summer program because

of the unique burdens imposed by the program or flaws in its

design or operation.

38

Cf. Green v. County Sch. Bd., 391 U.S. 430, 439 (1968)

(“Moreover, whatever plan is adopted will require evaluation in

practice, and the court should retain jurisdiction until it is

clear that state-imposed segregation has been completely

removed.”).

34

during the summer session.” In ordering implementation of this

plan, the district court tacitly approved the elimination of

most, perhaps even all, of the remedial courses that had been

offered by all the universities at issue here, most notably by

the HBIs. This is a troubling decision, implicating the reformed

policies for regular admission as well as the spring screening

and summer remedial program. On the one hand, there was evidence

to indicate that an intensive, structured program of remedial

instruction during the summer months prior to a student’s

immersion in the college experience may actually be more

effective at preparing students for college than a more diffused

program of remedial instruction throughout the academic year. On

the other hand, the district court appeared to base its decision

not to consolidate Mississippi Valley State University with Delta

State University, at least in part, on the significant percentage

of students enrolled in remedial, or developmental, education at

Mississippi Valley and on Mississippi Valley’s role as “a

significant nurturer of underprepared blacks,” id. at 1492, a

role that the district court apparently did not want to see

eliminated.39 Further, it is not clear to what extent the

operative predictive data assumes the existence of remedial

programs insofar as it is based on historical achievement. It is

clear that the predictive data relied upon by the State in

39

We find it significant that the presidents of

Mississippi’s HBIs testified that the existing remedial programs

at the HBIs are essential to meet the needs of the students they

serve and at least one questioned whether the summer remedial

program would adequately replace them.

35

support of its argument that its proposed admissions standards

were “quite moderate” indicate that students who are admitted

with the minimum qualifications required under the new standards

are not predicted to achieve a C average during their first year

at at least three of the HWIs. This suggests, as defendants note

in their brief and indicated at oral argument before this court,

that many students who are admitted under the reformed standards

will need “substantial educational assistance,” possibly

including remedial courses.40 Remedial courses may be an

important part of the admissions policy at any school in which a

significant number of students are not predicted to achieve a C

average during their first year.

Plaintiffs did not challenge the State’s existing

remediation policies as traceable to the de jure era. There was

therefore no requirement, under Fordice, for reformation of those

policies as such. However, the Board’s proposed admissions

standards (Bd. R-202) treated the adoption of the summer program

and the elimination of the existing remedial courses as

components of its admissions standards, and the district court,

in ordering the implementation of the Board’s proposal,

effectively did the same. The principle that apparently

underlies the Board’s admissions policy (and, therefore, the

40

There may be a distinction between students who qualify

for regular admission but who are also in need of remedial

education and students who do not so qualify. The total

immersion aspect of the summer program may be important for the

latter group but unnecessarily burdensome for the former group.

In suggesting these considerations, we intimate no view as to

their ultimate merit.

36

district court’s decision) is that, in the case of any applicant,

what can and cannot be accomplished with reasonable remediation

is a key element of the admissions decision. Clearly, this

principle is educationally sound. But the court’s action in

eliminating the existing remedial courses can legitimately be

challenged by plaintiffs as an inappropriate feature of the

court’s admissions remedy. We have recognized that there are

some tensions in the district court’s findings in this regard.

In the light of these tensions and the absence of specific

consideration of the justification for, or reasonableness of,

eliminating these unchallenged courses, we are sufficiently

concerned about the district court’s exercise of its discretion

in this regard to direct the court on remand to reconsider its

decision to eliminate these courses. On remand, the district

court should determine if remedial courses are needed to help

ensure that students admitted under the new admissions criteria

have a realistic chance of achieving academic success.41

iv. Timing

The United States argues that it may take several years for

the summer program to be thoroughly implemented, tested, and

evaluated and argues that during the interim, an admissions

policy that minimizes any reduction in the number of black

41

The decision whether to take more evidence on the

advisability of reinstating any or all of these courses, either

as previously offered or as modified to operate in conjunction

with the summer remedial program, is left to the district court.

37

students eligible for regular admission should be installed.42

We reject this argument. The summer program has sufficient

promise, on the present state of the record, to allow it “to

prove itself in operation,” Green v. County Sch. Bd., 391 U.S.

430, 440-41 (1968), should the district court decide to continue

on that path. There is no reason why, however, reconsideration

of the district court’s decision to eliminate the existing

remedial courses cannot be done promptly. We intimate no view on

the outcome of that reconsideration.

d. Conclusions regarding undergraduate admissions

standards

Except as set forth below, we affirm paragraph 2 of the

remedial decree, which reads in relevant part as follows: “The

1995 admissions standards as proposed by the Board for first-time

freshmen, effective for the academic year [1996-97], shall be

implemented at all universities.” Ayers II, 879 F. Supp. at

1494. We do not affirm paragraph 2 insofar as it eliminates the

remedial courses previously offered at each of the eight

universities. We remand this latter issue for reconsideration in

the light of this opinion. We understand the district court’s

continuing jurisdiction to encompass the evaluation of the

effectiveness of the spring screening and summer remedial

42

The United States makes a similar argument with respect

to the time that it will take to implement changes at the

community colleges. We think that the remedial decree adopted by

the district court adequately addresses the community colleges to

the extent they can be addressed in this case. The fact that

implementation of this aspect of the remedial decree will take

time does not require installation of an interim admissions

policy.

38

program, as a component of the admissions system, in achieving

its intended objectives of identifying and admitting those

students who are capable, with reasonable remediation, of doing

college level work but who fail to qualify for regular admission.

Should the district court ultimately conclude that this program

(as it may be modified) is unable to any significant degree to

achieve its objectives, then the court will need to identify and

implement another method for achieving those objectives.

3. Scholarship Policies

a. District court ruling

While the district court found that undergraduate admissions

policies in general are vestiges of de jure segregation that

continue to have segregative effects, it found that scholarship

policies in particular are not. On remand, plaintiffs challenged

the use of ACT cutoff scores for the award of undergraduate

academic scholarships at the HWIs, as well as the use of ACT

cutoff scores and alumni connection in the award of nonresident

fee waivers for out-of-state admittees.43 Unlike most other

43

The nonresident fee waivers for children of nonresident

alumni are referred to in the record also as “alumni

scholarships.” Our use of the term “scholarships” encompasses

academic scholarships as well as nonresident fee waivers, but we

use the term “nonresident fee waiver” when referring solely to

this type of award.

We note that Mississippi University for Women offers certain

scholarships to resident and nonresident children of MUW alumni

that require a minimum ACT score of 21 for eligibility. These

scholarships are distinct from the nonresident fee waivers, but

plaintiffs challenge the use of the ACT cutoff score and the

alumni connection in determining eligibility for these

scholarships as well.

39

forms of financial aid, the scholarships challenged by plaintiffs

are generally awarded on the basis of academic achievement, not

financial need, and do not require repayment by the recipient.

The district court found a significant disparity in the

percentage of nonresident fee waivers awarded by race in any

given year. Id. at 1433. The evidence indicated similar

disparities in the award of academic scholarships. The district

court concluded, however, that

[t]he Board’s policy of allowing [nonresident fee

waivers] to be based on ACT cutoffs and the use of ACT

cutoff scores as the sole criterion for the receipt of

academic scholarship monies has not been proven to have

linkage with the de jure system, and there is no

evidence that these practices currently foster

separation of the races such as influencing student

choice. Therefore, reformation of these policies

cannot be ordered consistent with the law of the case,

absent evidence of discriminatory purpose of which the

court finds none. The use of ACT scores in awarding

scholarships is widespread throughout the United States

and generally viewed as educationally sound.

Id. at 1434-35 (footnote omitted). The district court did not

make a specific finding with regard to the traceability of the

alumni connection requirement for nonresident fee waivers. The

remedial decree does not order alteration of any of the

challenged scholarship policies.

b. Arguments on appeal

Plaintiffs argue that the district court clearly erred in

finding that the use of ACT cutoffs in the award of academic

scholarships and nonresident fee waivers at the HWIs is not

traceable to the dual system and does not have segregative

effects. Although the district court’s findings and conclusions

40

with respect to academic scholarships focus specifically on

policies that establish an ACT cutoff score as the sole criterion

for award, plaintiffs’ challenge encompasses all instances in

which the HWIs require a minimum ACT score for scholarship

eligibility.44 Accordingly, plaintiffs have identified on appeal

numerous scholarships at various HWIs that are available only to

students with certain minimum ACT scores. Plaintiffs contend

that the use of ACT cutoff scores for scholarship eligibility is

traceable to the de jure system because under that system ACT

cutoff scores were implemented for the purpose of excluding black

students from the HWIs. The segregative effects of this

practice, plaintiffs argue, are evident in the racial disparity

in scholarship awards. Because black students receive only a

very small proportion of such scholarships, yet are more likely

than white students to be in need of financial aid, the policy

effectively reduces the number of black students able to attend

the HWIs. Moreover, plaintiffs argue that the record does not

44

In the Pretrial Order, private plaintiffs listed as a

challenged remnant “[t]he policy of using ACT cutoff scores in

selecting persons to receive particular scholarships at the

undergraduate level at each HWI.” The United States similarly

identified this alleged remnant as “[t]he practice of using the

ACT in selecting persons to receive scholarships at the

undergraduate level.”

Significantly, plaintiffs do not challenge any of the

scholarship policies at the HBIs and no party argues on appeal

that such policies either are traceable to the de jure system or

have present segregative effects. Accordingly, we express no

opinion on the scholarship policies at the HBIs or their

relevance in reforming scholarship policies to eliminate present

segregative effects. In fashioning the most appropriate remedy,

however, the district court may find it relevant to consider all

scholarship policies.

41

support the district court’s finding that the use of ACT cutoff

scores in the award of scholarships is widespread.

Plaintiffs also contend that the district court erred in

upholding the practice of limiting nonresident fee waivers to

children of an institution’s alumni. Plaintiffs maintain that

the alumni connection requirement is traceable to the de jure

system in that parents of today’s students were systematically

excluded from the HWIs under the de jure system.

c. Analysis

Although it is clear from the record that undergraduate

scholarship policies were litigated on remand, the district court

made virtually no fact findings with regard to specific policy

criteria or operation. The parties’ original briefing of this

issue on appeal was also scant.45 In response to our request for

supplemental briefing, plaintiffs provided a summary of the

challenged policies along with the racial breakdown of their

distribution for the 1992-93 year (and in one instance, for the

1991-92 year). Defendants have not contested the accuracy of

this summary, which is drawn from defendants’ answers to

interrogatories and from other evidence introduced by defendants.

We therefore accept plaintiffs’ factual summary. According to

that summary, the scholarships alleged to be traceable to de jure

segregation and to have present discriminatory effects are as

45

To ensure that we were apprised of all arguments and

relevant evidence on appeal, we requested, and the parties

supplied, supplemental briefing on the issue of undergraduate

scholarships.

42

follows:

DELTA STATE UNIVERSITY First-time freshman enrollment 1992-93: 21% black

Scholarship Minimum Number of Recipients Dollars Received

Name46 ACT

Score Black White Total Black White Total

Dean’s and 26 2 160 162 $1,375 $131,175 $132,550

Presidential

1% black 1% black

MISSISSIPPI STATE UNIVERSITY First-time freshman enrollment 1992-93: 16% black

Scholarship Minimum Number of Recipients Dollars Received

Name ACT

Score Black White Total Black White Total

Entering 31 1 294 299 $2,000 $546,000 $555,000

Freshman ACT

8,000

Sharp Forestry 31 0 3 3 0 7,500 7,500

Entering 29 5 454 468 16,250 596,836 626,836

Freshman ACT

5,000 and

Schillig

Ramsey & 28 0 41 41 0 115,500 115,500

Elaine O’Neal

and Hearin-

Hess

Entering 28 5 248 267 7,944 239,444 261,388

Freshmen ACT

4,000, South

Central Bell,

and Jesse &

Lillian Tims

Leadership 20 8 71 80 3,600 34,450 38,550

John C. 24 1 6 8 1,000 6,000 8,000

Stennis

Alumni 21 N/A N/A N/A N/A N/A N/A

TOTAL 20 1117 1166 $30,794 $1,545,730 $1,612,774

2% black 2% black MISSISSIPPI

UNIVERSITY

FOR WOMEN

46

Plaintiffs advise in their brief that in some instances

data for more than one scholarship with the same ACT cutoff score

has been grouped. This reflects the way defendants provided

scholarship data in response to interrogatories.

43

First-time freshman enrollment 1992-93: 21% black

Scholarship Minimum Number of Recipients Dollars Received

Name ACT

Score Black White Total Black White Total

Centennial and 28 0 26 26 $0 $142,464 $142,464

Eudora Welty

Regional 21 2 68 70 1,200 74,400 75,600

Alumni 21 2 50 52 600 32,540 33,140

Academic 21 10 208 218 3,402 111,500 114,902

Valedictorian 21 0 6 6 0 7,075 7,075

Salutatorian 21 0 6 6 0 4,125 4,125

TOTAL 14 364 378 $5,202 $372,104 $377,306

4% black 1% black

First-time freshman enrollment 1991-92: N/A

Scholarship Minimum Number of Recipients Dollars Received

Name ACT

Score Black White Total Black White Total

Special 21 34 154 188 $40,820 $139,163 $179,983

Conditions

Academic 25 0 79 79 0 130,425 130,425

TOTAL 34 233 267 $40,820 $269,588 $310,408

13% black 13% black

UNIVERSITY OF MISSISSIPPI First-time freshman enrollment 1992-93: 7% black

Scholarship Minimum Number of Recipients Dollars Received

Name ACT

Score Black White Total Black White Total

Children of 21 1 305 307 $1,960 $529,512 $533,432

Nonresident

Alumni

Children of 18 10 106 118 14,092 88,540 104,196

Faculty &

Staff Post-

1977

Children of 19 10 104 116 19,780 195,263 215,783

Faculty &

Staff Pre-

1977-78

Academic 28 6 683 701 14,130 1,608,555 1,641,805

Academic 30 2 27 29 9,500 105,000 114,500

Academic 22 9 240 253 11,350 244,467 258,642

Special 22 6 130 140 6,810 211,550 224,240

Conditions

44

TOTAL 44 1595 1664 $77,622 $2,982,887 $3,092,598

3% black 3% black

UNIVERSITY OF SOUTHERN MISSISSIPPI First-time freshman enrollment 1992-93: 27% black

Scholarship Minimum Number of Recipients Dollars Received

Name ACT

Score Black White Total Black White Total

Presidential, 29 0 36 36 $0 $194,043 $194,043

Schillig-

Baird, Pulley,

Pulley, and

Gough

Academic 28 7 352 371 8,375 773,490 816,860

Excellence

Regional 25 0 43 47 0 72,914 79,774

Alumni 21 1 143 146 1,960 230,333 236,213

TOTAL 8 574 600 $10,335 $1,270,780 $1,326,890

1% black 1% black

The district court found that basing scholarship eligibility

on ACT cutoff scores is not traceable to the dual system and does

not have current segregative effects. We agree with the

principle articulated by the district court that use of an ACT

cutoff is not unlawful in all circumstances. “Rather, its

particular use in any circumstance must be examined to consider

whether as a component of the policy challenged, the same is

traceable to prior de jure segregation.” Ayers II, 879 F. Supp.

at 1434. In light of the facts set out above, however, we

conclude that the district court erred in arriving at its

findings regarding traceability and segregative effects.47

The district court may have applied an erroneous view of

47

Our conclusion in this regard applies to the use of ACT

cutoffs in all challenged scholarships.

45

traceability. As defendants point out in their supplemental

letter brief, a traceable policy is one “rooted in” the prior

dual system. See Fordice, 505 U.S. at 730 n.4, 732 n.6, 743. It

is only “surviving aspects” of de jure segregation that a state

need remedy. See id. at 733. That is not to say, however, that

a challenged policy as it exists today must have been in effect

during the de jure period in order to be constitutionally

problematic. The undergraduate admissions criteria that the

district court found to be traceable, for instance, had been

modified several times since the de jure era but nonetheless were

found to be rooted in the prior system. Similarly, the Supreme

Court found Mississippi’s scheme of institutional mission

classifications to be traceable to de jure segregation even

though it was not put in place until several years after

termination of official segregation. See id. at 732-33, 739-41.

The Court noted that “[t]he institutional mission designations

adopted in 1981 have as their antecedents the policies enacted to

perpetuate racial separation during the de jure segregated

regime.” Id. at 739. In United States v. Louisiana, this court

implicitly recognized that Louisiana’s open admissions policy

could be traceable to that state’s prior de jure system despite

its adoption only after de jure segregation had ended. See 9

F.3d at 1167. Because the district court had not addressed the

policy’s traceability, we left the issue open for resolution on

remand. Id.

In this case, plaintiffs concede that the record does not

46

contain evidence directly linking the use of ACT cutoffs for

scholarship purposes with any time prior to 1980. Such evidence

apparently was not developed because plaintiffs concluded, in our

view correctly, that the discriminatory use of ACT cutoffs to

exclude black students from the HWIs during the de jure period

establishes traceability with respect to all current practices

that limit black student access to the HWIs by setting ACT cutoff

scores at a level that disproportionately favors white students.

Defendants contend that plaintiffs have failed to prove

traceability because they have not produced evidence establishing

that the practice of using ACT cutoffs in the award of

scholarships was initiated either “(i) during de jure

segregation, (ii) as an integral component of de jure

segregation, (iii) to continue, perpetuate, or further

segregation, or (iv) because of some intentionally segregative

policy which formerly existed.”48 This argument misses the mark.

First, to the extent defendants suggest it is lacking, evidence

of discriminatory purpose is required to establish a

constitutional violation only for present policies that are not

traceable to the prior system; discriminatory purpose is not an

element of traceability itself. Fordice, 505 U.S. at 733 n.8.

Second, this argument ignores the relationship between

scholarship awards and grants of admission, an element missing

48

Upon motion of plaintiffs, the district court placed the

burden of proving traceability on plaintiffs. No party appeals

the allocation of burdens of proof. For purposes of this appeal,

we assume without deciding that the district court did not err in

this respect.

47

from the district court’s analysis as well.

Scholarship decisions are not wholly independent of

admissions in the way that most financial aid determinations are.

Indeed, the record indicates that at University of Mississippi,

Delta State University, and Mississippi University for Women, the

application for admission also constitutes the application for

scholarships. It is because scholarships are intended to reward

exemplary academic achievement, as defendants point out, that

scholarship decision criteria overlap more with those for

admission than for financial aid. By their nature, scholarships

are designed to attract outstanding students to the awarding

institution; that scholarships need not be repaid is a powerful

incentive for students to both pursue and accept them. As a

component of admissions, scholarship policies further the process

that ultimately culminates in matriculation. In finding that the

use of ACT cutoffs in the scholarship context is not traceable to

the de jure system, the district court may have distinguished

scholarships too strictly from admissions, although its opinion,

which addresses scholarships as a component of admissions,

suggests otherwise. See Ayers II, 879 F. Supp. at 1424, 1431-35.

As presented by plaintiffs, the challenged scholarships

require students to achieve a certain minimum ACT score to be

eligible for the award. Accordingly, a student who has not

achieved the requisite ACT score will not be considered,

regardless of how impressive his or her grades or other academic

achievements might be. This is “constitutionally problematic”

48

for the same reason the Supreme Court found the use of the ACT in

admissions to be so. See Fordice, 505 U.S. at 736 (“Another

constitutionally problematic aspect of the State’s use of the ACT

test scores is its policy of denying automatic admission if an

applicant fails to earn the minimum ACT score specified for the

particular institution, without also resorting to the applicant’s

high school grades as an additional factor in predicting college

performance.”). Just as there may be students who could do

college level work yet might be precluded from enrolling in an

institution that maintains ACT cutoffs in admissions, there may

be students who have outstanding academic achievement that merits

recognition apart from their ACT scores.

It bears emphasis that the use of ACT cutoffs in the award

of scholarships raises constitutional suspicion only because of

the history of de jure segregation in Mississippi. The practice

of rewarding academic achievement as determined by standardized

test scores, even where it results in significant racial

disparities in receipt of awards, is not per se unconstitutional.

Use of ACT cutoffs does not take place on a clean slate in

Mississippi, however. The alleged practice of basing scholarship

eligibility on minimum ACT scores flows from earlier

discriminatory use of ACT cutoffs and therefore triggers further

constitutional inquiry, under Fordice, into whether it continues

to have segregative effects.

The use of ACT cutoff scores in the award of scholarships

restricts black students’ access to the HWIs in much the same way

49

that the use of ACT cutoff scores in a system of differential

admissions standards was found to restrict access. The district

court findings and other evidence indicate that scholarships with

ACT cutoff scores are disproportionately awarded to white

students. See Ayers II, 879 F. Supp. at 1433. In addition, the

district court found that black applicants to Mississippi’s

universities are more likely to need financial aid than white

applicants. Id. at 1433-34 n.28. To the extent that

academically accomplished black students are unable to achieve

ACT scores that would qualify them for scholarships at the HWIs,

they are discouraged from both applying to and matriculating at

these institutions.49 While the potential segregative effect of

the use of ACT cutoffs in determining scholarship eligibility is

perhaps somewhat less pronounced than that of the use of ACT

cutoffs in admissions, the evidence nevertheless indicates that

such potential does exist.

The fact that some HWIs offer scholarships specifically for

black applicants does not, as the State argues, alter this

conclusion. The evidence suggests that such scholarships

represent an extremely limited proportion of available

scholarship monies, and in most instances fall significantly

short of the amount of aid offered through generally available

scholarships. The availability of a small number of minority

scholarships at the HWIs does not automatically neutralize the

49

The district court found that black students continue to

be significantly underrepresented at most of the HWIs. Ayers II,

879 F. Supp. at 1469.

50

ongoing discriminatory effects of current scholarship policies

rooted in the de jure past.

There is evidence in the record to indicate that the use of

ACT cutoffs in the award of scholarships can be practicably

eliminated consistent with sound educational practices. Of

course, as we noted with respect to undergraduate admissions

policies, we do not hold that reliance on ACT scores for

scholarship purposes must be eradicated entirely. We leave to

the district court on remand factfinding with regard to the

practicability of reforming current policies consistent with

sound educational practices.

Plaintiffs also argue that the district court erred in

failing to find that basing eligibility for nonresident fee

waivers (and, in the case of Mississippi University for Women,

certain scholarships for children of resident and nonresident

alumni) on relationship to alumni of Mississippi’s HWIs is

traceable to the de jure system and has present segregative

effects. We agree that this practice, which the district court

found to result in the disproportionate award of such

scholarships to white students, has present segregative effects.

We are not persuaded, however, that traceability has been

established on this record.50 Plaintiffs’ argument rests upon

the exclusion of blacks from the HWIs during the de jure period.

50

Our conclusion in this regard applies to the alumni

connection requirement in the challenged scholarships offered by

Mississippi University for Women as well as that in the

nonresident fee waivers.

51

This fact, without more, does not establish the traceability of

the alumni element of the present nonresident fee waivers. In

effect, plaintiffs seek relief for “present discriminatory

effects without addressing whether such consequences flow from

policies rooted in the prior system.” Fordice, 505 U.S. at 730

n.4. The Supreme Court has rejected this position. Id.

Plaintiffs note in their briefs that this court struck down, as

unlawfully discriminating against black applicants to Mississippi

universities, a requirement established by the Board shortly

after the decision in Brown v. Board of Education, 347 U.S. 483

(1954), that each applicant for admission furnish letters or

certificates from alumni attesting to the good moral character of

the applicant. See Meredith v. Fair, 305 F.2d 343, 351 (5th

Cir.), cert. denied, 371 U.S. 828 (1962). In our view (assuming

that plaintiffs intend this as an alternative basis for

traceability), on this record the alumni certificate requirement

for admission has no connection, historical or otherwise, with

the nonresident fee waivers presently awarded to the children of

nonresident alumni except for the fact that both involve some

“alumni connection.” Any such argument urges us to a level of

generality that is beyond the traceability contemplated by

Fordice.

d. Conclusions regarding scholarship policies

We reverse the district court’s finding that the use of ACT

cutoff scores as a criterion for the award of scholarships at the

HWIs is not traceable to the de jure system and does not

52

currently foster segregation. We remand for determination of the

practicability and educational soundness of reforming this aspect

of the undergraduate scholarship policies at the HWIs and the

implementation, if necessary, of appropriate remedial relief.

B. Enhancement of Historically Black Institutions

1. Background Facts

Plaintiffs contend that several policies related to funding

and programs at the HBIs are remnants of the de jure system that

must be remedied by relief more expansive than that ordered by

the district court. Plaintiffs’ arguments in this regard

encompass four interrelated areas: new academic programs, land

grant programs, program duplication, and funding. According to

plaintiffs, these aspects of higher education affect student

choice, and existing policies must be remedied in order to enable

the HBIs to attract students of all races.51

In addition, private plaintiffs appear to advocate

enhancement of the HBIs in order to rectify the detrimental

effects of past de jure segregation, without regard to present

policies and practices. This position is at odds with standards

established in Fordice. The Supreme Court expressly rejected the

proposition that the State’s duty to dismantle its prior de jure

system requires elimination of all continuing discriminatory

51

The district court found that “[b]lacks are now

attending the HWIs as a group in statistical parity with their

representation in the qualified pool.” Ayers II, 879 F. Supp. at

1486.

53

effects: “To the extent we understand private petitioners to

urge us to focus on present discriminatory effects without

addressing whether such consequences flow from policies rooted in

the prior system, we reject this position.” Fordice, 505 U.S. at

730 n.4. Likewise,

[i]f we understand private petitioners to press us

to order the upgrading of Jackson State, Alcorn State,

and Mississippi Valley State solely so that they may be

publicly financed, exclusively black enclaves by

private choice, we reject that request. The State

provides these facilities for all its citizens and it

has not met its burden under Brown to take affirmative

steps to dismantle its prior de jure system when it

perpetuates a separate, but ‘more equal’ one.

Id. at 743.

The appropriate inquiry under Fordice, then, is whether

changes in resource allocation are necessary to dismantle fully

present policies and practices rooted in the prior system that

serve to maintain the racial identifiability of the universities

and that can practicably be eliminated without eroding sound

educational policies. See id. Current policies and practices

(as distinguished from lingering disparities in institutional

development per se) implicate the Fourteenth Amendment only

insofar as they are traceable to the prior system and continue to

have segregative effects, either by influencing student choice or

otherwise.

2. New Academic Programs

a. District court ruling

The programmatic expansions of Jackson State and Alcorn

State ordered by the district court respond to its findings

54

concerning deliberate efforts by the State of Mississippi to

restrict the educational opportunities of its black citizens, as

well as the traceability of current mission assignments to these

historical antecedents. See Ayers II, 879 F. Supp. at 1437-41,

1477, 1483-86. As the district court found, after establishment

of Alcorn State in 1871 and continuing through roughly the first

half of this century, the prevailing notion concerning the

education of blacks was that blacks could benefit only from

agricultural or mechanical training, rather than a liberal

education as provided to whites. Id. at 1437-38. Alcorn State

was originally designated as an agricultural college for

Mississippi’s black youth, and Jackson State and Mississippi

Valley State, founded in 1940 and 1950, respectively, were

established primarily to train black teachers. Ayers I, 674 F.

Supp. at 1527-28. During the years 1945 through 1970, when both

the HWIs and the HBIs experienced considerable growth in

enrollment, the bulk of the State’s higher education resources,

particularly programmatic allocations, went to University of

Mississippi, University of Southern Mississippi, and Mississippi

State University, the three leading white universities. Ayers

II, 879 F. Supp. at 1439.

The district court found that the mission designations

adopted by the Board in 1981 -- and in place throughout both the

1987 and 1994 trials -- effectively fixed the scope of

programmatic offerings that were in place at each university

during the de jure period. Id. at 1438-39. The Board designated

55

University of Mississippi, University of Southern Mississippi,

and Mississippi State University “comprehensive” universities,

thereby indicating that these institutions would continue to

offer a greater number and a higher level of degree programs than

all other institutions. Based on its location in the city of

Jackson, Jackson State was designated an “urban” university with

the mission of serving the urban community. The Board designated

Alcorn State, Delta State, Mississippi University for Women, and

Mississippi Valley State “regional” universities, signifying a

programmatic range limited to undergraduate instruction. Id. at

1438.

In Fordice, the Supreme Court found that

when combined with the differential admission practices

and unnecessary program duplication, it is likely that

the mission designations interfere with student choice

and tend to perpetuate the segregated system. On

remand, the court should inquire whether it would be

practicable and consistent with sound educational

practices to eliminate any such discriminatory effects

of the State’s present policy of mission assignments.

505 U.S. at 741. The district court indeed found that

“[p]olicies and practices governing the missions of the

institutions of higher learning are traceable to de jure

segregation and continue to foster separation of the races.”

Ayers II, 879 F. Supp. at 1477. The remedial decree, however,

does not order any alteration of the mission designations. See

id. at 1483.52 No party appeals retention of the mission

52

The Board apparently has upgraded the mission of Jackson

State to an “enhanced” urban designation. Ayers II, 879 F. Supp.

at 1483.

56

designations per se.

The remedial decree does order some augmentation of the

programs offered at Jackson State and Alcorn State.53 The

district court found that the policies and practices of de jure

segregation impeded the development of both universities. Id. at

1466, 1484. At Jackson State, the court found that the dearth of

professional programs hindered potential other-race enrollment at

the main campus. Id. at 1485. Although the court found that the

record supported neither the educational soundness of

transferring programs to Jackson State nor the desegregative

potential of institutional affiliation with the University of

Mississippi Medical Center, it found that the addition of other

unique, high demand programs did have potential to desegregate

the institution. See id. at 1485-86. The district court

accordingly ordered implementation at Jackson State of programs

in allied health, social work (Ph.D), urban planning

(Masters/Ph.D), and business (DBA).54 Id. at 1494. In addition,

the remedial decree directs the Board to undertake an

institutional study

with the express purpose of determining the nature and

direction of those programs slated to be implemented,

as well as further programmatic expansion at JSU, to

best achieve the urban emphasis of its mission.

Included in this study will be an evaluation of the

53

The remedial decree orders the State to provide the

funding for all measures ordered by the decree. Ayers II, 879 F.

Supp. at 1496.

54

The doctoral program in business is to be implemented at

Jackson State “when existing business programs are accredited.”

Ayers II, 879 F. Supp. at 1494.

57

feasibility and educational soundness of establishing

an engineering school, a public law school, and a five-

year pharmacy program under the direction and control

of JSU.

Id. at 1495.

With respect to Alcorn State, the district court found that

certain proposed programmatic enhancements promised realistically

to increase other-race presence and were educationally sound.

Accordingly, the district court ordered implementation of an MBA

program at Alcorn’s Natchez Center, to be funded specially by the

State along with related capital improvements. The court also

ordered the State to provide the Small Farm Development Center at

Alcorn with annual research and extension funds to match similar

federal funds appropriated to Alcorn, up to an aggregate of $4

million each year.55 Id. at 1495.

The district court did not order any programmatic

enhancements at Mississippi Valley State. Although the court

found that Mississippi Valley State’s proximity to Delta State

tended to perpetuate segregation,56 it stated that

[o]n the record . . . the court cannot find that

institutional enhancement of MVSU will eliminate the

vestiges of segregation that have contributed to MVSU’s

status as essentially a one-race institution. Evidence

does not persuade the court that merely adding programs

and increasing budgets will desegregate a HBI. That is

not to say, however, that changes made over time at the

55

The Small Farm Development Center falls within the land

grant function of Alcorn State. While we note this component of

the remedial decree here, we discuss the court’s ruling with

respect to land grant programs separately below.

56

The district court’s findings with respect to the

segregative effects of proximate and nonproximate institutions

are set forth in our discussion of program duplication infra.

58

university consistent with its mission as a

baccalaureate institution cannot promote diversity at

the campus. The court cannot find that institutional

or programmatic enhancement of MVSU is justified as

educationally sound for desegregation purposes based on

this record.

Id. at 1491. The court also found, however, that while

there is evidence to suggest that transferring programs

to MVSU may not be educationally sound, there is

likewise evidence that measures can be taken which,

over time, offer a potential of desegregating MVSU. As

one of the State’s own witnesses testified, evidence

suggests that HBIs in other formally de jure segregated

states have been successful in integrating their

student bodies through a variety of approaches and

measures.

Id. The sole portion of the remedial decree that pertains

specifically to Mississippi Valley State is the following section

concerning the proposed merger with Delta State:

12. If, after further study of any available

educationally sound alternatives, the Board determines

that desegregation in the Mississippi Delta can be

attained only through its DSU/MVSU consolidation

proposal and that abandoning the financial investment

presently in place at the [MVSU] campus and

constructing replacement facilities at the [DSU] campus

present a practical course of action, it shall

substantiate that conclusion no later than July 1, 1996

to the Monitoring Committee.

Id. at 1495.

Finally, the district court determined that practices

concerning accreditation of academic programs at the HBIs did not

warrant remedial relief.57 The court found that while none of

the HBIs was accredited as of 1961, each has now attained

57

Private plaintiffs and the United States challenged

“[t]he practice of failing to take the necessary steps (including

the provision[] of required facilities) to secure the

accreditation of programs at the HBIs.” Ayers II, 879 F. Supp.

at 1497, 1501.

59

accreditation and “[s]ince 1980, with the possible exception of

JSU, the overall percentage of programs accredited at all

universities has increased substantially.” Id. at 1441. The

court found that the State’s “inattentiveness” to the HBIs during

the de jure period with regard to program and institutional

accreditation negatively affected institutional prestige, but

that “there is no evidence that the State’s previous failings in

this regard persist into the present day.” Id. at 1445. The

court stated that little evidence had been presented on the

present status of the accreditation issue. Id.

b. Arguments on appeal

Plaintiffs argue that the district court erred as a matter

of law by failing to order any new programs at Mississippi Valley

State and only two new programs at Alcorn State. While

plaintiffs do not challenge the district court’s rejection of the

Board’s proposal to merge Mississippi Valley State and Delta

State, they contend that the record does not support the court’s

conclusion that programmatic enhancement of Mississippi Valley

State will not help to desegregate the Delta. Plaintiffs argue

with respect to Alcorn State that further relief is warranted

given the Natchez location of the MBA program, which plaintiffs

contend will not help to desegregate the main campus,58 and the

State’s prior commitment to funding the Small Farm Development

Center. The United States specifically asks this court to remand

58

The Natchez Center is located approximately 40 miles

from Alcorn’s main campus. Ayers I, 674 F. Supp. at 1542.

60

with instructions to order the Board to study and report to the

Monitoring Committee on actions that could be taken to enable

Mississippi Valley State and Alcorn State to attract students of

all races, including improvement of existing programs and the

addition of unique, high demand programs.59 Plaintiffs do not

appeal the district court’s order as it pertains to programmatic

enhancement of Jackson State.60

Private plaintiffs also argue that the district court

clearly erred in finding that problems with accreditation of

programs at the HBIs do not persist to the present.

Defendants contend that the traceability of mission

assignments does not warrant institutional enhancement of the

HBIs beyond that ordered by the district court, and that the

record does not support general enhancement of these institutions

as a desegregation tool.

c. Analysis

The issue of programmatic enhancement directly implicates

policies governing institutional missions, which the district

court found to be traceable to the de jure system and to have

current segregative effects. Fordice mandates that the State

59

The United States in its brief argues that the district

court should have ordered additional funding at the HBIs to,

among other things, “improve the quality of existing programs.”

U.S. Br. at 44. Except for specific issues (such as, for

example, program accreditation and faculty salaries) that we have

addressed elsewhere in this opinion, the general issue of program

quality is not briefed and we therefore do not address it.

60

The parties’ arguments concerning the land grant

programs in particular are discussed in Part III.B.3 infra.

61

eliminate such vestiges of the prior system to the extent

practicable and consistent with sound educational practices.

This is a substantial burden; accordingly, to the extent that the

record indicates that the State could practicably take steps to

desegregate that do not run afoul of sound educational practices,

the State has a duty to do so and the remedial decree should so

reflect.

Our review of the record leads us to conclude that the

district court’s finding that “merely adding programs and

increasing budgets” is not likely to desegregate an HBI, Ayers

II, 879 F. Supp. at 1491, is supported by the evidence and is not

clearly erroneous. There was testimony that the Louisiana

experience with implementation of a consent decree to desegregate

public institutions of higher education was not successful in

attracting white students to historically black universities,

despite investment of over $75 million in new academic programs

at those universities. The evidence showed that there was no

correlation between dollars expended on new program

implementation and white enrollment in those programs. During

the six years (1981-87) that the Louisiana consent decree was in

effect, white enrollment in predominantly black universities

increased by just 1.1%, while black enrollment in predominantly

white universities decreased from 56% to 47% of black enrollment

in the system as a whole.61

61

Cf. United States v. Louisiana, 692 F. Supp. 642, 645

(E.D. La. 1988) (“Despite the slight increase in black enrollment

statewide, the racial polarization has increased as a whole

62

The district court’s findings do indicate, however, that

steps can be taken that might serve to desegregate Mississippi

Valley State, although determining what those steps might be

requires further study. In its discussion of Mississippi Valley

State in the context of the proposed merger with Delta State, the

court stated that “evidence suggests that HBIs in other formally

de jure segregated states have been successful in integrating

their student bodies through a variety of approaches and

measures.” Id. Indeed, evidence presented by the United States

and defendants indicates that well-planned programs that respond

to the particular needs and interests of local populations can

help to desegregate historically black institutions. Witnesses

for both parties testified that programs not duplicated at

proximate institutions, targeted to local demands, and in many

cases offered through alternative delivery systems (such as off-

campus, evening, or weekend programs) have had success in

attracting white students to historically black institutions in

other states.

Consistent with its findings regarding the potential to

desegregate Mississippi Valley State, the district court stated

during the term of the consent decree: the predominantly white

institutions had about 2000 fewer black students in 1987 than in

1981, while the predominantly black institutions showed only a

negligible increase in white enrollment from around 0.3% in 1981

to around 1.1% in 1987.”). According to the three-judge court

that reviewed the special master’s final report in the Louisiana

case, “[t]he experience of the consent decree confirms that

enhancement of [predominantly black institutions] without more

simply makes [predominantly black institutions] more attractive

to black students, without attracting white students.” United

States v. Louisiana, 718 F. Supp. 499, 508 (E.D. La. 1989).

63

in its opinion that it “will direct the Board to explore these

areas more thoroughly to determine what measures have had success

in other systems of higher education, if any, which also have a

reasonable chance of success in desegregating MVSU.” Id. at

1492. This directive, however, was not incorporated into the

remedial decree. This may be explained by the fact that the

future of Mississippi Valley State was uncertain at the time the

district court drafted its opinion. Under the remedial decree,

merger with DSU remained a possibility that depended upon the

Board’s study of options for desegregating the Delta region. We

cannot conclude that the district court abused its discretion in

failing to order the above relief when the very existence of

Mississippi Valley State as an independent institution remained

in question. At present, however, all parties apparently have

concluded that merger of Mississippi Valley State with Delta

State is neither required nor desired.62 On remand, the district

court must clarify the status of the merger proposal. If the

district court confirms that merger will no longer be pursued,

then the district court must address the continuing segregative

effects of Mississippi Valley State’s limited mission and

incorporate into its remedial decree a provision requiring the

Board, on a continuing basis, to study and report to the

62

Counsel for defendants stated at oral argument before

this court that defendants had publicly announced that they were

no longer pursuing merger. In its brief, the United States

expressed unqualified support for the district court’s rejection

of the merger proposal. Private plaintiffs’ argument for

enhancement of Mississippi Valley State likewise indicates their

opposition to merger.

64

Monitoring Committee on new academic programs that have a

reasonable chance of increasing other-race presence at

Mississippi Valley State.

Plaintiffs’ contention that the district court was required

to order further relief at Alcorn State is less persuasive, at

least as it addresses the short term. We are not persuaded that

further relief is warranted on the basis of the MBA program’s

location away from the main campus at Natchez; plaintiffs’ own

expert testified that off-campus offerings are among those

initiatives that have been successful at attracting other-race

students to historically black institutions. Nor are we

persuaded that the State’s prior commitment to funding the Small

Farm Development Center necessitates the order of additional

relief; this fact does not implicate the Fordice standard for

remedial relief. The record does suggest, however, that measures

that have been successful in desegregating historically black

institutions in other states may have potential over the longer

term to be effective also at Alcorn State. We see no reason, in

light of the traceability of the HBIs’ limited missions and of

their continuing racial identifiability, to limit continuing

study of new academic programs with desegregative potential to

Jackson State. The district court should have incorporated such

relief with respect to Alcorn State into the remedial decree.

We recognize that substantial evidence indicates that

efforts to desegregate an HBI can succeed only insofar as they

tap into locale-specific demands. Any such inherent limitation

65

on the potential to achieve desegregation in the university

context may underlie some of the district court’s findings and

suggests that implementation of unique, high demand programs that

can reasonably be expected to attract white students to HBIs may

ultimately turn out to be quite modest.

Private plaintiffs’ argument that the district court clearly

erred in finding no present neglect by the State with respect to

accreditation of programs at the HBIs is unavailing. The

district court’s finding of substantial increases in the

percentage of programs accredited at all universities is

supported by the record, and private plaintiffs do not identify

any present policy that currently hinders accreditation of

programs at the HBIs.

Private plaintiffs’ accreditation concerns are relevant,

however, to one aspect of the district court’s remedial decree.

The doctoral program in business that the court ordered at

Jackson State is not to be implemented until existing business

programs are accredited, and the record indicates that despite

the Board’s goal of achieving accreditation for these programs,

set forth as early as 1974 in the Board’s plan of compliance with

Title VI, it has not yet been accomplished. The record is not

clear as to the reasons that these programs are not yet

accredited. In the interest of ensuring that the district

court’s order concerning the doctoral program in business be

given meaningful effect, the district court on remand should

inquire into present efforts to achieve accreditation of Jackson

66

State’s business programs and order any relief that is

appropriate with respect to the Board.

d. Conclusions regarding new academic programs

We affirm the portions of the remedial decree addressing the

addition of new academic programs at Jackson State and Alcorn

State. We direct the district court on remand to clarify the

status of the Board’s proposal to merge Mississippi Valley State

with Delta State. If the district court confirms that merger

will no longer be pursued, it should incorporate into the

remedial decree a provision directing the Board to study and to

report to the Monitoring Committee on whether there are any new

academic programs, including programs which have had success in

desegregating other systems of higher education, that may have a

reasonable chance of success in desegregating Mississippi Valley

State. We further remand for incorporation into the remedial

decree of a similar provision directed to Alcorn State covering

new academic and land grant programs. On the issue of

accreditation, the district court should determine the status of

current efforts to achieve accreditation of existing business

programs at Jackson State and order appropriate relief, if

necessary, to ensure that the Board is taking steps commensurate

with its role in this accreditation process.

3. Land Grant Programs

a. District court ruling

Mississippi State University and Alcorn State University are

67

Mississippi’s two public land grant institutions.63 As found by

the district court, the traditional elements of the land grant

function consist of residential instruction, agricultural

research (including an experiment station), and an extension

service.64 Ayers II, 879 F. Supp. at 1464. The district court

found that during the de jure period the State consistently

directed federal and state land grant funds toward Mississippi

State University rather than Alcorn State. Id. at 1464-65.

Specifically, Mississippi directed all federal funding for

agricultural research under the Hatch Act, 7 U.S.C. §§ 361a-361i,

and all federal funding for extension services to farmers under

the Smith-Lever Act, 7 U.S.C. §§ 341-349, to Mississippi State,65

while Alcorn State received federal funding only under an 1890

federal statute providing funds for black land grant colleges.

63

“A land grant institution is defined as a college

university [sic] entitled to financial and programmatic support

from the federal government pursuant to a series of statutes

originating with the Morrill Acts enacted by Congress in 1862 and

1890.” Ayers I, 674 F. Supp. at 1543. The Morrill Act of 1862

and subsequent statutes “defined the land grant college to be an

institution that provides instruction in agriculture and

mechanical arts, research in agriculture through the experimental

stations, and extension of knowledge to farmers through

cooperative extension programs.” Id.

64

Cooperative extension is a joint effort of the federal

government, land grant institutions, and county governments to

transfer knowledge to farmers and assist in the development of

farm operations. Ayers I, 674 F. Supp. at 1545. Cooperative

extension originated with the Smith-Lever Act of 1914, 7 U.S.C.

§§ 341-349, and is jointly financed by federal, state, and county

governments. Ayers I, 674 F. Supp. at 1545.

65

Although the district court made no specific finding in

this regard, the evidence indicates that matching state funds

were directed to Mississippi State along with the Hatch and

Smith-Lever federal appropriations.

68

Ayers II, 879 F. Supp. at 1464. As a result, Mississippi State

enjoys land grant activities of much greater size and breadth

than Alcorn State. Id. at 1466. The district court found that

“[o]peration and maintenance of two racially identifiable land

grant programs are traceable to de jure segregation and have

segregative effects.” Id. at 1477.

The court made findings with respect to each of the

traditional land grant functions. The court found that the

quality of residential instruction is directly and positively

affected by agricultural research conducted on the campus of a

land grant institution, which is more extensive at Mississippi

State than at Alcorn State due to Mississippi State’s broader

research mission. Id. at 1464, 1466. Turning to agricultural

research, the court found:

With little or no exception, federal Hatch Act

dollars are administered in every state by a single

institution. In this time of fewer and fewer persons

entering the field of agriculture, but the system

nevertheless effectively feeding more and more people,

it would be inefficient and, thus, educationally

unsound to administer two separate agricultural

research programs in the state. To diffuse the program

would create two separate administrative entities,

difficulties in communication among the participating

scientists, and inefficient duplication.

Id. at 1465.

Similarly, the court found that it would be unsound to

administer federal funds for cooperative extension work through

two independent cooperative extension programs:

The general rule of practice is that Smith-Lever

funds are administered by only one university in each

state. . . . To duplicate administrative processes and

procedures as it relates to the delivery of extension

69

programming is unsound because the short duration of

extension educational programs makes program

coordination difficult from year to year.

Id. at 1465-66.

Although the court found that “the operation of two racially

identifiable land grant institutions might continue to have some

segregative effects that would be minuscule because of the small

number of students now majoring in agriculture,” id. at 1484, it

concluded that “[t]he current allocation of agricultural

education programs is educationally sound and there exists no

practical alternative to the current method of providing research

and extension services.” Id. at 1466. With the exception of a

special funding allocation for the Small Farm Development Center

at Alcorn State, the remedial decree did not mandate any changes

in current land grant policies or practices. See id. at 1494-96.

b. Arguments on appeal

The United States argues that “the court erred as a matter

of law when it failed to evaluate alternative proposals for

changes in the allocation of land grant programs short of

dividing the land grant programs equally between the 2

institutions.” U.S. Br. at 47. The United States further

contends that to the extent the district court’s conclusion that

there are no practical alternatives to the current method of

providing research and extension services “is a finding that

there are no educationally sound alternatives to the present

allocation of programs, that finding is clearly erroneous.” Id.

Private plaintiffs advance similar arguments. Both the United

70

States and private plaintiffs cite evidence that there are unmet

needs in Mississippi for new land grant programs, such as water

quality, that could be met at Alcorn State.

Defendants argue that the district court correctly found

that any segregative effects associated with the operation of two

racially identifiable land grant institutions could not be

remedied consistent with sound educational practices. Defendants

further contend that the addition of agricultural programs at

Alcorn State will not contribute to desegregation.

c. Analysis

The district court’s finding that it would be impractical

and educationally unsound to alter the current method of

providing research and extension services is well supported by

expert testimony in the record. As the district court found, the

primary source of federal funds for agricultural research is the

Hatch Act, and for cooperative extension funds the Smith-Lever

Act. Ayers II, 879 F. Supp. at 1464. Substantial evidence

indicates that federal (and matching state) funds appropriated

through these acts typically are administered by a single

institution in each state and that it would be unsound to

administer in Mississippi either two separate research programs

with Hatch funds or two separate extension programs with Smith-

Lever funds.

Contrary to the suggestion of plaintiffs, the district court

opinion does not limit its consideration of changes in the

allocation of research and extension funds to “equally” dividing

71

such funds between Mississippi State and Alcorn State. While the

court recognized that it would be inappropriate to break up the

academic and research facilities at Mississippi State and Alcorn

State and divide them “equally” between educational institutions

solely on the basis of Alcorn State’s heretofore restricted

development, see id. at 1466, this statement reflects a legal

standard rather than a finding drawn from the evidence on

practicability or educational soundness. The evidence led the

district court to conclude more generally that “[t]he current

allocation of agricultural education programs is educationally

sound and there exists no practical alternative to the current

method of providing research and extension services.” Id.66

Plaintiffs’ argument that the district court should have

considered alternatives other than an “equal” division of land

grant programs accordingly is without merit.

We read the district court’s conclusion that it would be

impractical and educationally unsound to change the current

practice of administering research and extension services

primarily through Mississippi State to be limited to research and

extension services funded through the Hatch and Smith-Lever Acts,

as those statutes are now configured. Significantly, we do not

read the district court opinion to preclude future implementation

of land grant programs at Alcorn State. Instead, the district

66

The district court similarly stated that “[t]he evidence

preponderates toward the conclusion that dividing the roles

within the extension arena between two universities rather than

as it is currently conducted is not an educationally sound

alternative.” Ayers II, 879 F. Supp. at 1484.

72

court’s implicit decision not to order implementation at this

time at Alcorn State of a program in water quality or any other

land grant program offered by plaintiffs reflects the lack of

sufficient definition of any of these programs in this record.

The addition to the remedial decree, see Part III.B.2.d supra, of

a provision directing the Board, on a continuing basis, to study

and to report to the Monitoring Committee on programs that have a

reasonable chance of increasing other-race presence at Alcorn

State encompasses land grant programs as well as new academic

programs and permits further study of the programs proposed by

plaintiffs.

d. Conclusions regarding land grant programs

We affirm the district court’s ruling as it concerns land

grant functions at Mississippi State and Alcorn State.

4. Duplication of Programs

a. Fordice

Program duplication was one of the four remnants of the de

jure system identified by the Supreme Court in Fordice. 505 U.S.

at 738. Following the 1987 trial, the district court found

significant duplication of programs at the HBIs by the HWIs,

Ayers I, 674 F. Supp. at 1541, but concluded that “there is no

proof” that such duplication “is directly associated with the

racial identifiability of institutions,” and that “there is no

proof that the elimination of unnecessary program duplication

would be justifiable from an educational standpoint or that its

elimination would have a substantial effect on student choice.”

73

Id. at 1561. The Supreme Court stated that “[i]t can hardly be

denied that such duplication was part and parcel of the prior

dual system of higher education -- the whole notion of ‘separate

but equal’ required duplicative programs in two sets of schools -

- and that the present unnecessary duplication is a continuation

of that practice.” Fordice, 505 U.S. at 738. The Court

emphasized that the State bears the burden of proving that

present-day program duplication is not constitutionally defective

and held that the district court had improperly shifted the

burden to plaintiffs. Id. The Court indicated that, on remand,

the district court should “consider the combined effects of

unnecessary program duplication with other policies, such as

differential admissions standards, in evaluating whether the

State had met its duty to dismantle its prior de jure segregated

system.” Id. at 739.

b. District court ruling

The alleged remnant presented by plaintiffs to the district

court on remand was “[t]he policy and practice of unnecessarily

duplicating HBIs’ programs and course offerings at HWIs.” Ayers

II, 879 F. Supp. at 1498, 1502. The district court defined

“unnecessary duplication” as “‘those instances where two or more

institutions offer the same nonessential or noncore program.’”

Id. at 1441 (quoting Ayers I, 674 F. Supp. at 1540). “‘Under

this definition, all duplication at the bachelors level of

nonbasic liberal arts and sciences course work and all

duplication at the masters level and above are considered to be

74

unnecessary.’” Id.

The district court found that 40% of the noncore bachelors

programs offered at one or more of the three HBIs are

unnecessarily duplicated at one or more of the five HWIs; 83% of

the masters programs offered at one or more of the HBIs are

unnecessarily duplicated at one or more of the five HWIs; 60% of

the specialist programs offered at one or more of the HBIs are

unnecessarily duplicated at one or more of the five HWIs; and 25%

of the doctoral programs offered at one or more of the HBIs are

unnecessarily duplicated at one or more of the five HWIs. Id. at

1443. As a group, the HWIs have significantly more high demand,

noncore programs that are not duplicated anywhere else in the

system as compared with the HBIs as a group. Id. at 1442.

Analyzing program duplication in general, the district court

found that the joint operation of duplicative offerings between

racially identifiable institutions and differential admissions

standards “raises a serious inference that this duplication

continues to promote segregation.” Id. at 1445. The court drew

a distinction, however, between proximate and nonproximate

institutions in making more specific findings on the question of

segregative effect. The court concluded that only program

duplication between proximate, racially identifiable institutions

was traceable to de jure segregation and had segregative effects.

Id. at 1477, 1486.

The court addressed two instances of program duplication

between proximate, racially identifiable institutions. First,

75

in its remedial decree, the district court ordered the Board to

“take whatever remaining steps are necessary, if any, to vest

complete institutional control in JSU over the facility formerly

known as the Universities Center in JSU.” Id. at 1495. The

Universities Center, located in Jackson, consisted of extension

programs operated by various HWIs. Ayers I, 674 F. Supp. at

1542. In 1972 the Board voted to assign management

responsibilities for the Universities Center to Mississippi

State, the University of Mississippi, and Jackson State. Id. At

the trials in 1987 and 1994, plaintiffs identified continued

operation of these extension programs in close proximity with

Jackson State as a vestige of the de jure system. The district

court’s order eliminates whatever competition for enrollment the

Universities Center fostered with respect to Jackson State.

Second, the court considered program duplication between

Mississippi Valley State and Delta State, which are proximate,

racially identifiable institutions in the Delta. The district

court found that

[b]ecause of the proximity of these institutions

(approximately 35 miles apart) and the similar scope of

their missions, (liberal arts undergraduate

institutions) [sic] location, costs and program

offerings would not appear to have a significant impact

on student choice. Rather, lower admissions standards

at MVSU appear more likely to attract black students of

the Delta region, since as a class black students score

lower on the standardized tests used for admission to

universities. In light of differing admissions

standards, it is clear that program duplication between

these two universities does foster segregation.

Ayers II, 879 F. Supp. at 1486. The district court noted that

merger of Mississippi Valley State and Delta State would

76

eliminate segregative duplication, id. at 1486, 1489, but

rejected the Board’s merger proposal for a number of other

reasons. See id. at 1491-92. In so doing, the court indicated

that measures “less drastic” than merger should be considered.

Id. at 1492. In its conclusions of law, the district court

stated that “the Board must study program duplication between DSU

and MVSU to determine whether any segregative duplication may be

eliminated consistent with sound educational practices.” Id. at

1494. Neither this directive nor any other remedy pertaining to

decreasing program duplication with respect to Mississippi Valley

State, however, was incorporated into the remedial decree.

Turning to program duplication between nonproximate

institutions, the district court found that “it has not been

established that program duplication between non-proximate

racially identifiable universities significantly fosters

segregation.” Id. at 1486. The court found that factors

affecting student choice included location, academic reputation,

and prestige, none of which is implicated by program duplication.

Id. Noting that admissions standards help to shape public

perceptions of an institution, the court found that “[t]he

consistently lower admissions standards in effect at the HBIs

have perpetuated the perception that these institutions are

inferior. Accordingly, the likelihood of significant

desegregation of HBIs is small and confined to those students who

are academically underprepared.” Id. The court concluded that

absent differences in “prestige or public image,” unnecessary

77

duplication “has little to do with student choice.” Id. Program

duplication is most likely to influence students who are not

place-bound and who have the greatest flexibility in choosing an

institution. Id.67

The court concluded that “[s]ystem-wide admissions

standards, coupled with the financial and programmatic

enhancements of JSU and ASU, realistically promise to obviate or

lessen whatever segregative effects are potentially harbored by

the duplication between racially identifiable non-proximate

institutions.” Id. In addition, the court found that the

Board’s existing process for reviewing programs is an

educationally sound method of managing duplication in the system.

Id. Under this process, Board staff consults with university

officials whenever a program’s enrollment or graduation rates

drop below a certain level predetermined by the Board. The

university is then given an opportunity to justify continuation

of the program despite its deficiencies. Id. at 1443.

Although the court indicated that uniform admissions,

programmatic enhancements, and the Board’s program review

procedures would adequately mitigate any potential segregative

effects of program duplication between nonproximate institutions,

it ordered the Board to study program duplication with respect to

67

Elsewhere, the district court found that operation of

Alcorn State and Mississippi State, which are nonproximate,

racially identifiable, land grant institutions, “might continue

to have some segregative effects that would be minuscule because

of the small number of students now majoring in agriculture.”

Ayers II, 879 F. Supp. at 1484.

78

Jackson State. The Board is to undertake this as part of a

general study:

4. The Board shall undertake an on-site

institutional study of JSU to determine the relative

strengths and weaknesses of its existing programs as

soon as is practicable. . . . The nature and extent of

duplication with other institutions in the system will

be addressed in this study in the context of

determining whether meaningful programmatic uniqueness

may be gained which would bring about significant white

enrollment through elimination and/or transfer of

existing programs at other institutions and the

feasibility/educational soundness of such elimination

and/or transfer.

Id. at 1494-95.

c. Arguments on appeal

The United States argues that the district court erred in

failing to order the Board “to undertake a system-wide effort to

reduce program duplication and to increase the numbers of unique

high demand offerings at the [HBIs].” U.S. Br. at 47-48. The

United States’s argument on this issue continues, in its

entirety, as follows:

The court’s finding that duplication between

nonproximate institutions does not cause segregation

contains no citations or references to record evidence,

and appears to be based upon its findings that other

factors, such as location, affect student choice,

rather than any evidence that duplication does not

affect choice. Again, the court impermissibly placed

the burden of proof on the plaintiffs, rather than on

the defendants. And its finding that the Board’s

existing program review process is adequate to

eliminate any segregative effect of duplication, is

clearly erroneous, since that process is not triggered

by the existence of duplication or the need to promote

desegregation.

Id. at 48 (citations omitted). Private plaintiffs do not raise

the issue of program duplication on appeal.

79

d. Analysis

No party contests the district court’s finding that program

duplication between proximate racially identifiable institutions

is traceable to de jure segregation and continues to have

segregative effects. We therefore accept this finding as

supported by the record and conclude that the United States’s

argument as it applies to Mississippi Valley State is well taken.

The district court itself stated that it would order a study of

program duplication between Mississippi Valley State and Delta

State, see Ayers II, 879 F. Supp. at 1494, yet failed to

incorporate any such provision into the remedial decree. Again,

the omission may have been occasioned by the continuing

possibility that Mississippi Valley State would be merged with

Delta State. See Part III.B.2.c supra. We cannot conclude that

the district court abused its discretion in failing to order a

study of program duplication at Mississippi Valley State when the

continued existence of Mississippi Valley State remained in

question. However, upon conclusion of the inquiry we have

ordered above, if the district court confirms that merger will no

longer be pursued, then the district court must incorporate into

its remedial decree a provision requiring the Board to study and

report to the Monitoring Committee on unnecessary program

duplication between Mississippi Valley State and Delta State.68

68

As we noted in our discussion of new academic programs,

Part III.B.2.b supra, the specific relief requested by the United

States on appeal with respect to enhancement of the HBIs is an

order requiring the Board to study and report to the Monitoring

Committee on actions that could make the HBIs more attractive to

80

The United States’s argument as it applies to nonproximate

institutions, on the other hand, is not briefed sufficiently for

this court to review this aspect of the district court’s ruling

for error. Cf. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.),

cert. denied, 513 U.S. 868 (1994)(“A party who inadequately

briefs an issue is considered to have abandoned the claim.”). It

is of no consequence that the district court did not cite to the

record in the portion of its opinion addressing the potential

segregative effects of program duplication in nonproximate

institutions. While citations to the record are helpful, and we

commend the district court for its abundant documentation of the

record throughout its opinion as a whole, the district court is

not required to provide them. Significantly, the United States

does not contend that the court’s finding of no segregative

effect in the context of nonproximate institutions is clearly

erroneous.

The United States argues, rather, that the court

impermissibly shifted the burden of proof on this issue to the

plaintiffs. While the court’s language might suggest imposition

of the burden of proof on plaintiffs (“it has not been

established that program duplication between non-proximate

racially identifiable universities significantly fosters

segregation”), its reasoning indicates reliance not on the

absence of evidence of segregative effect, but rather on the

white students. In light of this request and the structure of

the remedial decree, where we have ordered relief in the

enhancement area, we have done so in those terms.

81

presence of evidence that factors other than duplicative program

offerings have a more significant effect on student choice. We

are not persuaded that the court erred in its allocation of the

burden of proof.

The United States’s argument that the district court’s

finding “that the Board’s existing program review process is

adequate to eliminate any segregative effect of duplication is

clearly erroneous” mischaracterizes the district court’s finding.

The court found that “the Board’s program review process is an

educationally sound way of managing duplication in the system.”

Ayers II, 879 F. Supp. at 1486. This finding is supported in the

record and makes no pretense of disposing of the issue of

potential segregative effects. The court went on to conclude

that “[s]ystem-wide admissions standards, coupled with the

financial and programmatic enhancements of JSU and ASU,

realistically promise to obviate or lessen whatever segregative

effects are potentially harbored by the duplication between

racially identifiable non-proximate institutions.” Id. We note

that even in light of this conclusion, the district court did

order a study of program duplication at Jackson State to

determine if elimination or transfer of programs at other

institutions might help attract white students to Jackson State.

Id. at 1495.

e. Conclusions regarding program duplication

We affirm the district court’s findings and conclusions on

the issue of program duplication. If, on remand, the district

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court confirms that the merger of Mississippi Valley State and

Delta State will no longer be pursued, the district court should

incorporate into its remedial decree a provision requiring the

Board to study and to report to the Monitoring Committee on

unnecessary program duplication between Mississippi Valley State

and Delta State.

5. Funding

a. District court ruling

Mississippi’s eight universities receive state funding

through both an annual legislative general support appropriation

and line item appropriations. The universities also rely on

self-generated funds, which include private contributions as well

as federal grants and loans. See id. at 1446-53; Ayers I, 674 F.

Supp. at 1546-48. In its overall findings of liability, the

district court concluded that “[f]unding policies and practices

follow the mission assignments and, to that degree only, are

traceable to prior de jure segregation.” Ayers II, 879 F. Supp.

at 1477. We discuss each source of state funding and the

relevant findings of the district court in turn.

The Board is responsible for allocating the legislative

general support appropriation among the universities. Beginning

in 1974, the Board utilized a funding formula that allocated this

funding to the universities in accordance with their mission

designations. In November of 1987, following the first trial,

the Board adopted a new funding formula under which level of

funding is determined by the size of a university’s enrollment,

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faculty, and physical plant. Id. at 1449 & n.122. The 1987

funding formula consists of eight components: instruction,

research, public service, academic support, student services,

institutional support, operation and maintenance, and

scholarships and fellowships. Id. at 1447. By far the largest

of these components is instruction, which accounted for more than

58% of the total budget in fiscal year 1994-95. Id. The general

support appropriation does not include funds for capital

improvements. Id.

The district court found that

because the size of the university’s enrollment

determines the level of funding, the larger

institutions with the highest percentage of upper level

programs obtain the greatest amount of funding. This

causes practically the same result as under the

previous formula that funded by institutional mission

designation.

Id. at 1449. Stated differently, the court found that “the

historical disparity in funding between the HWIs and HBIs once

practiced by law persists through perpetuation of the status quo

as it existed then.” Id. at 1452-53. The court concluded,

however, that

[c]urrent policies and practices governing funding

of institutions are lawful. There is no per se funding

policy or practice traceable to the de jure era.

Attainment of funding “equity” between the HBIs and

HWIs is impractical and educationally unsound. It can

neither be attained within our lifetime nor . . . does

it realistically promise to guarantee further

desegregation given the present institutional

landscape. The testimony showed that the formula is

largely geared to funding the students without

consideration of race at whichever institution the

students choose to attend and at the program level the

students choose. Accordingly, the court finds that the

funding formula should not be altered.

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Id. at 1453.

Line item appropriations fund specific activities and

programs offered at the public universities. Capital

improvements and repair and renovation of existing facilities are

funded through a combination of line item appropriations and

self-generated funds. The district court found that line item

funding accounts for a “substantial” share of total state

appropriations for institutions of higher education and

contributes “significantly” to the quality of any given

institution. Id. at 1451.

The district court found that, in general, line item funding

“disproportionately flows to the HWIs.” Id. In the context of

capital improvements and repair and renovation, however, the

court concluded that funding policies and practices do not follow

the mission assignments and are not traceable to de jure

segregation. Id. at 1477. Although the State provided new

construction funds disproportionately to the HWIs during the late

1960s, figures from 1970 through 1994 indicate that the HBIs

received a percentage of capital improvements funds that exceeded

their percentage of systemwide enrollment. Id. at 1454.69

69

From 1970 through 1980, when the HBIs had approximately

25% of the total systemwide enrollment, the HBIs received 39% of

the state appropriations for new construction. From 1981 until

1994, the HBIs averaged 22% of systemwide enrollment yet obtained

32% of total funding available for capital improvements. Ayers

II, 879 F. Supp. at 1454; see also Ayers I, 674 F. Supp. at 1548-

49.

We note that these findings appear to conflict with evidence

credited by the district court that no HBI received a line item

appropriation until 1993. See Ayers II, 879 F. Supp. at 1451.

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The district court made distinct findings with respect to

library allocations and equipment availability. The court found

that the library collections of the HWIs have been consistently

superior to those of the HBIs for the past 40 years, and that the

physical space of the HBIs’ libraries is “of a lesser quality

overall” than that of the HWIs’ libraries. Id. at 1456-57. The

court likewise found that investment in equipment at the HWIs

exceeded that provided to the HBIs during the de jure era and

that, currently, the quality of fixed equipment at the HBIs is

inferior to that at the HWIs. Id. at 1457. The court concluded

that “[p]olicies and practices governing equipment availability

and library allocations follow the mission assignments and, to

that degree, are traceable to de jure segregation.” Id. at 1477.

As to the present segregative effects of library and

equipment funding policies, the district court found generally

that “[t]he nature and condition of facilities of a campus are

factors that influence student choice in deciding where to attend

college.” Id. at 1457. With respect to equipment in particular,

the court found that “[t]he quality and type of equipment

available on a campus is important from the student’s standpoint

in terms of adequately preparing the student to enter the job

market.” Id. As to libraries, the court recognized that, as

part of an institution’s image, the library “plays a part in the

recruitment of students and faculty,” id. at 1456, but also found

No party, however, challenges either finding, and resolution of

this apparent discrepancy is not essential to our ruling on the

issue of funding.

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that “the number of books in the library is [not] a significant

feature of a university that influences student choice of where

to attend.” Id. at 1457. In light of these findings, the court

ultimately concluded that “increasing the size of the HBIs’

libraries beyond that consistent with their missions is not

educationally sound.” Id. at 1458. The court found it

significant that the libraries at Alcorn State and Jackson State

are presently undergoing expansion. Id.70

The remedial decree orders the State to provide special

funds to both Jackson State and Alcorn State in addition to the

funds necessary for the programmatic additions outlined

earlier.71 At Jackson State, the State is to provide, per Board

proposal over a five-year period, up to $15 million earmarked for

property acquisition, campus entrances, campus security, and

grounds enhancement. For the benefit of Jackson State and Alcorn

State, respectively, the State is to establish two $5 million

endowment trusts, “with the income therefrom to be used to

provide funds for continuing educational enhancement and racial

diversity, including recruitment of white students and

scholarships for white applicants in a number and an amount

70

The court found that the State legislature had recently

approved a $12 million expansion of the library at Jackson State,

already underway at the time of the district court’s opinion.

Expansion of the library at Alcorn State was also underway, with

$3 million having already been invested. Ayers II, 879 F. Supp.

at 1457.

71

The decree contains a general provision that orders the

State to provide funding for all measures ordered therein. Ayers

II, 879 F. Supp. at 1496.

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determined by the court upon recommendation from the Monitoring

Committee.” Id. at 1495.72

b. Arguments on appeal

Plaintiffs argue that the district court misapplied Fordice

in concluding that “[t]here is no per se funding policy or

practice traceable to the de jure era.” Plaintiffs contend that

disparities in current funding are traceable to the de jure

system, have discriminatory effects, and should be reformed to

the extent practicable and consistent with sound educational

practices.

Plaintiffs also contend that the district court erred by

failing to consider adjustments to the funding formula to take

into account student financial need and the higher costs of

remedial education, “or increases in funding to the [HBIs] to aid

them in overcoming the cumulative effects of decades of

underfunding.” U.S. Br. at 44.73 Plaintiffs specifically

request funding to enhance existing facilities, including

72

The court found that “the endowment for JSU . . . and

the funds proposed to be set aside to purchase adjoining land are

sound steps toward correcting JSU’s image.” Ayers II, 879 F.

Supp. at 1485. Likewise, the court found that “the proposed

funding for the small farm development center and the proposed

endowment . . . promise realistically to solve ASU’s other-race

presence problems and is [sic] otherwise educationally sound.”

Id. at 1486.

73

Plaintiffs suggest in their briefs that the district

court erroneously focused solely on achieving funding “equity”

between the HBIs and the HWIs. While the district court found

that “[a]ttainment of funding ‘equity’ between the HBIs and HWIs

is impractical and educationally unsound,” Ayers II, 879 F. Supp.

at 1453, the court did not purport to rely exclusively on this

finding for its determination that “the funding formula should

not be altered.” Id.

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libraries and equipment, at the HBIs.74

Defendants contend that the district court correctly found

that no current funding policy is traceable to de jure

segregation. Moreover, defendants argue that the dedication of

funds for general institutional enhancement does not contribute

to the desegregation of historically black institutions.

c. Analysis

We find the district court

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