United States v. Fordice – Oral Argument – November 13, 1991

Media for United States v. Fordice

Audio Transcription for Opinion Announcement – June 26, 1992 in United States v. Fordice

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William H. Rehnquist:

We’ll hear argument first this morning in No. 90-1205, United States against Ray Mabus, No. 90-6588 Jake Ayers v. Mabus.

Mr. Chambliss?

Alvin O. Chambliss, Jr.:

Mr. Chief Justice and may it please the Court:

I propose to address historical linkage… configuration title VI and Fourteenth Amendment.

In 1844, the State chartered the University of Mississippi for white only.

This began a long line of practices minimizing the participation of black people in the system of higher education.

Alcorn State University was established 23 years later, and for 50 years that school was essentially a primary and secondary school.

During this time, from 1840 to 1940, the majority population of State of Mississippi was black.

Thereafter, the State established four other white schools with very broad scopes.

When the State was given what is now Jackson State University, its initial reaction was to downgrade that college to a high school, and when it reappeared again several years later, it, too, had a very narrow educational offering.

The State freely admits in 1954 that it was spending less money for its black institutions, and in fact was sending its graduates off for graduate school education 16 years after this Court’s decision in the Canada case.

It is interesting to note that in the seventies and the eighties, now, when the State claims to have acted positively, the State action reduced black undergraduate enrollment by 14 percent and caused the number of degrees received by blacks to decrease by almost 400 from back… 1990… from that in 1981, according to… Government published report.

Today, the college-going and degree-granting rates for blacks are on a downward trend, and this is due to discrimination.

This, Your Honor, is the history Mississippi wants to walk away from.

The historical discrimination to black… hurt black people in five different ways.

Equal access… they were shut out.

It segregated them, and then when they got in they got lesser programs, funding, facilities, reputation.

And it denied black people leadership opportunities and employment opportunities in the five white schools, which were the schools of choice, so to speak.

But now, if this case is dismissed, I want every… I don’t say… if it’s dismissed, but yet we show clearly in seven short pages in our reply brief that black people still are experiencing those harms, and the system of… rooted in the days of apartheid in Mississippi still exist.

Nothing has changed.

You have the misuse of the ACT.

The university center dominated by xxx junior college, in addition to three white schools, still stands in the shadow of Jackson State University.

You have black people still feeling hostility at the University of Mississippi, and basically the system is substantially intact from 1962 until now; 99 percent of the white students go to white schools.

Now, the en banc court had an opportunity to deal with the constitutional… I mean, to not have this Court deal with the constitutional question.

It relegated our title VI claim to a footnote, but to us this claim came first, it’s independent, and I think it’s dispositive on this record.

Sandra Day O’Connor:

So you think the Court should resolve the Title VI claim before it gets to the constitutional claim?

Alvin O. Chambliss, Jr.:

Yes, Your Honor.

I think that in title VI we have a plan of compliance.

We can measure promises versus performance.

For an example–

Sandra Day O’Connor:

Is the test under title VI any different than it would be under the constitutional claim, do you think?

Alvin O. Chambliss, Jr.:

–Well, Your Honor, I don’t think so.

I think that title VI at least is not any narrower.

I think that… but on title VI, you have examples.

You see, courts are very reluctant to get into areas they don’t know… well, forgive me for that.

They don’t want to get into areas that… we must say higher education is different, and we think–

Sandra Day O’Connor:

Let me pursue this just–

Alvin O. Chambliss, Jr.:

–Yes.

Sandra Day O’Connor:

–one minute with you.

Does this case turn basically on what are the appropriate remedies, given this history?

Does it turn on that?

Alvin O. Chambliss, Jr.:

I think so, Your Honor.

I think so.

Sandra Day O’Connor:

And are the remedies any different under title VI than they would be under the constitutional claim?

Alvin O. Chambliss, Jr.:

I–

Sandra Day O’Connor:

Is there any different standard employed?

Alvin O. Chambliss, Jr.:

–Yes.

Well, the standard… yes… yes, it is, and I’ll tell you the reason why, Your Honor.

Under title VI you… they… they’re basically three aspects that I think that this Court could look at that would help the Court.

U.S. Exhibit No. 1, for an example, the first exhibit is a plan of compliance, promises versus performance.

You can measure what the State basically said it was going to do and what it actually did do.

But aside from that, you have a lot of interpretative regulation.

You have the revised criteria.

Now, it’s not law, the regulations, which two co-equal branches of Government expressed their views, but the revised criteria… on the executive branch, but the revised criteria tells you… for an example, it says, when you go into higher education you want… don’t want to put the burden of desegregation on the black colleges.

It talks in terms of how you could do various recruiting mechanism and how you can put together programs to overcome the prior effects of racial discrimination, but yes, I think that regulation section 100-3(b)(6)(i), Your Honor, is very instructive in this case.

Harry A. Blackmun:

Mr. Chambliss, I’m interested in Justice O’Connor’s question.

Don’t you think the two issues, title VI and the constitutional issue, are so intertwined that they may be handled together?

Alvin O. Chambliss, Jr.:

I–

Harry A. Blackmun:

I take it you don’t?

Alvin O. Chambliss, Jr.:

–Well, Your Honor, let me just say it like this.

Alvin O. Chambliss, Jr.:

The way I look at it, the… title VI is an independent claim, and even though you may say the standards are the same, they’re not coterminous in a sense that under title VI the Government has a lot of regulation that’s specific and… not on this regulation we don’t have to deal with intent.

But for an example, if you look at the Guardian case you… it was similar to the regulation, but it was (b)(2), and of course, impact versus intent standing… the Constitution, more or less, intent.

But we’re not talking here, now, about impact or intent.

I guess what I’m saying is that when you start looking at title VI in this area, for example, there are some implications in terms of Governors and advisory committees.

Now, again, back in the old days… I’m sorry about that, but back in the earlier days, under desegregation law they used to have advisory biracial committees, but in higher education I’m not sure that would work that way, but they do give examples of how you can pull the community in.

So I guess to my mind it’s a good possibility if the Court decides the title VI you wouldn’t bog the Court down in a lot of stuff.

And you’ve got the Department of Education there that may want to get involved, and… the Louisiana case, which was different, but they went out and got a master, and–

So I’m just saying I think that it would help lower courts, and I think that if people look at the constitutional standard the results under the Constitution may… in the long run I think the results are the same, and that is to eliminate the vestiges of State-imposed segregation, but I think that the means may be a little different.

Antonin Scalia:

Mr. Chambliss, I’m interested in what specific remedies you propose, and my quandary in particular is this: do you want remedies that have the effect of providing or leading to de facto integration, so that the historically black universities won’t be overwhelmingly black and the historically white will not be overwhelmingly white?

Is that what you’re looking for?

Alvin O. Chambliss, Jr.:

No, sir.

What we looking for, and I hope I answer the way you can–

Antonin Scalia:

Because I mean, if you’re looking for that, you would adopt a quite different remedy than, for example, strengthening the curriculums in the historically black schools from the… if the de facto segregation that now exists is largely… is largely the result of personal preference–

Alvin O. Chambliss, Jr.:

–No… no sir.

Antonin Scalia:

–the worst thing to do would be to establish a black university that is… has the full curriculum and is fully as good as what is now the predominantly white university.

That just invites the society to segregate itself into everyone… the blacks going to one and the whites going to the other.

Now, is that the system you want, or do you want us–

Alvin O. Chambliss, Jr.:

No, sir.

Antonin Scalia:

–You want us to destroy that system and adopt policies that will–

Alvin O. Chambliss, Jr.:

Just… oh, I’m sorry.

Forgive me.

I didn’t want to be rude.

Antonin Scalia:

–Tell me… tell me what you want.

Alvin O. Chambliss, Jr.:

Justice, I think that’s a good question; it’s a very fair question, but I think we have an adequate answer.

You see, our objective… and that’s why title VI is important.

Our objective is better, more, fair, desegregated education through a fair process.

Now, in my mind, you will always have some type of racial identifiability in those campuses.

Of course, Bazemore said that’s all right.

We… but we do think that in our society black and whites ought to go to the same school.

You ought to have… you should not have, for an example, all of the administrator… in this record, for an example, 2 percent of the white faculty is black, and 1 percent of the administrators are black.

Alvin O. Chambliss, Jr.:

It’s one black, full-time professor, the time of this record in the whole system.

In higher education, you are nothing unless you’re tenured and you’re a professor and you vote.

And yet the few people there can’t.

I’ll reserve the rest of my time, if it please the Court.

Thank you.

William H. Rehnquist:

Very good, Mr. Chambliss.

General Starr, we’ll hear from you.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court:

For many decades the State of Mississippi created and then deliberately maintained a dual system of higher education: one for whites, one for blacks.

There are, to our mind, at least three clear signs that that system has not been dismantled.

The first is the way students enter the system: a discriminatory admissions test that channels black students to traditionally black institutions.

Secondly–

William H. Rehnquist:

The test is applied to everybody, blacks and whites, isn’t it, General Starr?

Kenneth W. Starr:

–Yes, it is, Mr. Chief Justice.

William H. Rehnquist:

You are talking about a discriminatory impact?

Kenneth W. Starr:

I am talking about a discriminatory effect in view of this test having first been imposed in the wake of James Meredith’s attempt to enter Old Miss.

That was the first time that it was imposed, and it is clear and undisputed that it was imposed initially out of discriminatory intent.

Now how does it operate today?

It operates today by virtue of the different, minimum standards of the traditionally white institutions versus the traditionally black institutions, to channel black students to the latter institutions, coupled with… and this is what the State of Mississippi will not be able adequately to explain, and that is the use, Mr. Chief Justice, of that test alone, in the face of advice to the contrary from the ACT program itself, which says, do not use this test alone.

One of the documents in the record–

Byron R. White:

You want… whatever test you are proposing, you would want to apply to all the universities?

Kenneth W. Starr:

–Of course.

It should, presumably the–

Byron R. White:

Now there is a lower standard to get into the so-called black university?

Kenneth W. Starr:

–That is correct, there is a lower standard–

Byron R. White:

And a higher standard–

Kenneth W. Starr:

–That is correct–

Byron R. White:

–And you would lower the standards for all?

Kenneth W. Starr:

–At the remedy stage, that is certainly one realistic possibility.

In our–

Byron R. White:

What do you propose?

Kenneth W. Starr:

–What I am proposing is that they take grades and other aspects of that student’s background into account.

Byron R. White:

Right across the board, at all universities?

Kenneth W. Starr:

Absolutely.

It makes no sense… now they are saying, well, we are worried about grade inflation here in Mississippi, and that’s what the district court found.

It falls apart.

The record does not support that.

At page 18 of our brief we have record citations that show that ACT studies in Mississippi show that students are better, more fairly, more accurately evaluated by taking something rather obvious into account: high school grades.

William H. Rehnquist:

Were there any district court findings on these issues, General Starr?

Kenneth W. Starr:

Yes, there were.

The district court found that there was no discriminatory intent at this time in using this test–

William H. Rehnquist:

Are you challenging that finding?

Kenneth W. Starr:

–I am, but more than that–

William H. Rehnquist:

Because it is clearly erroneous?

Kenneth W. Starr:

–Yes, but I have a threshold problem with what the district court did, Mr. Chief Justice.

The district court got it wrong in terms of the standard.

I don’t have to survive a rule 52 challenge because what the district court said was, all the State has to do is to say, we adopt race-neutral admissions and other operational policies, and that is wrong.

Judge Higgenbotham got it right in his dissent when he said, as this Court has said, that standard is dismantlement.

You must dismantle–

William H. Rehnquist:

I was asking you about what I thought was a factual finding of the district… whether this particular test discriminates or was intended to discriminate at the present time.

And I would think that a district court factual finding on that would exist independently of what standard it applied to say what the universities had to do.

Kenneth W. Starr:

–I think that the finding can stand, but the finding, nonetheless, fails to take into account the standard.

I think this is a very important aspect that may be dividing us.

And that is, if the standard, the legal standard the court is applying is, is there an intent to discriminate and there is a finding that there is no intention to discrimination, then I am not here to challenge that particular finding.

But I am here to challenge the standard.

William H. Rehnquist:

You said there was such a finding in this case?

Kenneth W. Starr:

There was such a finding in this case.

William H. Rehnquist:

You are willing to leave that finding as is–

Kenneth W. Starr:

Correct.

William H. Rehnquist:

–but you are challenging what consequences flow from it?

Kenneth W. Starr:

I am also challenging again… that is one way of putting it.

What I am trying to submit to the Court is that it is the standard the Court applied, which was not, is this a remnant of the prior system which is having, in the way that it’s being used, segregative effect and it’s easy to eliminate it and there is no educational justification for its use of this particular test.

That is one aspect of the… our standard is unfettered choice.

That is the key, we agree.

Bazemore sets the standard.

Another aspect of–

Sandra Day O’Connor:

Well, General Starr, let me ask you a little about that.

Why is it you limit the duty of the State to only removing the vestiges of discriminatory State action that fetters student choice, if in fact, the State has caused the constitutional violation in the first place?

Why doesn’t it have an obligation under Brown to eliminate all vestiges of discrimination whether or not it affects directly student choice?

For instance, funding of the black universities and that sort of thing?

Kenneth W. Starr:

–Well, we do think that this Court in Bazemore said that where there is not State compulsion, the State make the choice for you and assigns you to a particular school, then the standard is voluntary and unfettered choice.

That is to say, yes, dismantlement… the two are not in conflict, but–

Sandra Day O’Connor:

Did Bazemore involve a situation where it was determined that the State had caused the discrimination?

Kenneth W. Starr:

–Yes.

The State had in fact assigned individuals to particular 4-H clubs on grounds of race.

This case involves a variety of educational services that, as Judge Higgenbotham pointed out, when we look to, and this comes to your point, Justice O’Connor, when we look at two aspects… the unnecessary program duplication that the district court found was inefficient and wasteful.

And there are two institutions in the impoverished delta of Mississippi that in our judgment powerfully shows the problem.

Delta State, historically white; Mississippi Valley, historically black.

The facilities are quite dissimilar.

The library at one is twice the size of the library at the traditionally black institution.

The problem with the failure to dismantle is that it is unrealistic to expect persons with choice to choose to go to an institution that has continued to suffer deprivations of funding and facilities and where there is unnecessary program duplication–

Anthony M. Kennedy:

Isn’t that a way of saying, Mr. Starr, that that means that Bazemore is inapplicable to this context?

Kenneth W. Starr:

–I don’t think it’s inapplicable.

I think it’s just the standard–

Anthony M. Kennedy:

I would have thought you would have said that Bazemore involved 4-H clubs which are very easily changed.

The Mississippi university system involves a very complex pattern of entrenched segregation, with segregated faculties, segregated facilities, unequal facilities.

Kenneth W. Starr:

–We do say that, exactly, that is our submission.

Our submission is the–

Anthony M. Kennedy:

Then it seems to me that Bazemore is not of much help.

Kenneth W. Starr:

–Well, it… I don’t… argue with the Court about the applicability of its own precedent.

Kenneth W. Starr:

The point that we draw from Bazemore is that the standard is whether the State is introducing racial factors that fetter choice.

I quite agree with your distinctions of the 4-H situation and higher education, quite right.

But the standard is that of voluntary choice.

Is the individual able to choose free of racial factors that have been introduced by the State?

Antonin Scalia:

Here is the problem.

You said it is unreasonable to expect people to want to go those schools that are under-funded, and I would say, yes, one would expect them then to go to the better schools, to Old Miss and the schools that have better funding.

So that is what is such a puzzlement, why have not more of the blacks who are qualified to go to those schools chosen to there, or the faculty?

Once there has been this finding that there is no discrimination against faculty or students, one comes perhaps to the conclusion that much of this is a question of personal choice and personal preference.

And the solution that you propose, namely to have duplicative offerings in various schools and not to have one school that is less good than another one, will produce just the opposite result of what I think you’re after.

Namely, it will simply reinforce the segregation of the two institutions.

Kenneth W. Starr:

Two points quickly, 70 percent is not choice.

That is to say, given the admission standards of Old Miss and the other historically white institutions, 70 percent of black students do not qualify for automatic admissions.

They don’t have that choice in terms of automatic admissions.

You’ll hear from Mr. Goodman through the brief and probably through what he is going to say about all the affirmative action programs and so forth.

Dothard v. Rawlinson, we think is the complete answer to that.

With respect to program duplication, Justice Scalia, our submission is not that there should be a perfection of duplication.

Seven States… Georgia, South Carolina… you have an amicus brief from Tennessee, has shown this can work.

How can it work?

You can dismantle that old system by putting new programs at the traditionally… the historically black institution.

We not saying that there has to be any particular answer.

That is to say, what the State should do is identify its own needs, and then it should focus on how the historically black institutions can support those needs.

Anthony M. Kennedy:

How does the installation of programs at those schools increase the black enrollment at Old Miss?

Kenneth W. Starr:

It… that may not at Old Miss, but we are trying to desegregate an entire system and dismantle the entire system.

Let me give you a specific example.

The president of Jackson–

Anthony M. Kennedy:

Then we are right back to Justice Scalia’s problem.

You… all you are doing is saying that you want better facilities at the all black schools and that will tend to make them all black.

Kenneth W. Starr:

–No.

Don’t forget my ACT argument.

You give me my ACT point and I will have many more qualified blacks ready to go to Old Miss.

Kenneth W. Starr:

You give me that.

So that is one answer to Old Miss.

With respect to building up the black institutions, testimony in this trial showed that the Jackson… the president of Jackson State said to the board of trustees, give us the social work program.

That most fundamentally fits our mission here.

We are not asking for a change of mission.

We have been designated as the urban institution, give us that program.

Instead, the board of trustees says, thank you very much, we are sending it to Hattiesburg, to the University of Southern Mississippi.

What the Department of Education has done, what the Civil Rights Division has done is worked with States.

Seven States have fulfilled the plans of compliance that Mr. Chambliss was speaking to in U.S. Exhibit 1.

They agreed to that.

They fulfilled their obligations under that plan, and they have come out from under that: Georgia, South Carolina… seven States have fulfilled their obligations.

Mississippi has chosen to say, no, all we have to do is raise neutrality, that suffices for our purposes, and that… we are prepared to litigate to the hilt.

Anthony M. Kennedy:

Do you have any problem with the academic standards for matriculation at Old Miss?

Kenneth W. Starr:

Not the academic standards.

In fact, the core curriculum requirement is imposed across the board.

Our objection to the admissions standards… we are not trying to intrude, but we are saying that you can effectively eliminate right away… you can do what all the other States do: take high school grades into account.

And again, the inflation of grade points is illegitimate.

The ACT’s own studies in Mississippi refuted that.

That is just wrong, if they use the ACT in consultation with high school grades, that will make an enormous difference in terms of the fairness of this system and of dismantlement.

Our submission is this: There must be a dismantlement.

It is undisputed that there was a dual system.

It was de jure, and as Judge Higgenbotham so eloquently put it in his dissent, history, the history of State action has worn deep traces in the face of higher education in Mississippi.

Byron R. White:

But you are not insisting on the Green standard, is that it?

Kenneth W. Starr:

That’s correct.

Justice White–

Byron R. White:

You want just to dismantle whatever you identify as the vestiges that fetter choice?

Kenneth W. Starr:

–Exactly right.

That’s our submission.

Byron R. White:

How do you know whether they do or not?

You don’t go around and interview people, I don’t suppose.

Byron R. White:

You just think we ought to be able to recognize… you could just recognize that kind of a vestige when you see it on the street?

Kenneth W. Starr:

There are two very quick ones.

I think that our ACT argument is unanswerable.

With respect to program duplication, it has historically been the position of the United States that one of the telltale signs of a de jure system that hasn’t been dismantled is unnecessary program duplication.

And it abounds in this system and the district court said, it’s wasteful, it’s inefficient, it makes no sense, but it’s not for me to tell Mississippi that it can’t do it.

Why did the district court come to that decision?

It came to it because it applied the wrong standard.

It said all that we have to look to, Justice White, is race neutrality.

We don’t need to ask the question, has the State of Mississippi dismantled.

Has it eliminated those fetters to choice?

Byron R. White:

What if… what would you have done if you hadn’t identified and thought that it was proved, these two vestiges that fetter choice?

Absent those and yet everything was… and yet there were black colleges and white colleges.

Kenneth W. Starr:

There is no constitutional impediment to a racially identifiable institution.

There may be other indicia of State action that is fettering choice, including xxx funding–

Byron R. White:

So if Mississippi does what you think it ought to do, and there is still black colleges and white colleges–

Kenneth W. Starr:

–We have no quarrel.

I thank the Court.

William H. Rehnquist:

–Thank you, General Starr.

Mr. Goodman, we’ll hear now from you.

William F. Goodman, Jr.:

Mr. Chief Justice, and may it please the Court:

We feel like we come with a little extra baggage because of our past.

But we don’t come that way today.

We recognize that one of the reasons you granted a writ is that at one point in history Mississippi created public colleges for whites and separate public colleges for blacks.

And you granted a writ to review whether today… today, there having been years of affirmative efforts to overcome the past, you granted a writ to decide whether today more than real freedom of choice is required.

When I listen to my friends, I wonder if they recall that there has been a trial in this case.

There has been a full trial which dealt with Mississippi’s good faith affirmative efforts in higher education for some two decades.

And there’s been a careful review by an en banc court of appeals.

I’ve got a lot to try to cover.

I would like to cover first the contention that choice is not enough.

I would like to, second, speak to what is the legal standard, what it is and what it is not.

William F. Goodman, Jr.:

And I hope I have time, thirdly, to respond to the petitioners’ attempt here to argue factual questions for the third time, factual questions that have been resolved against them right in the teeth of findings below, and that is the issues that they continue to raise about admission standards and university program offerings.

But first, what is the case about?

You would expect a case like this to turn on whether qualified black students can today freely choose from among the respective universities, whether they are large or small, whether they are urban or rural.

And so it should turn on there.

But happily, access to higher education in Mississippi is an accomplished fact.

And it has been for a long time.

Over one-third of the black university students are in the five predominantly white institutions.

Mississippi University for Women, with the highest of our woefully low admissions standards, is 19 percent black.

The University of Southern Mississippi, 14 percent black.

Mississippi State University, 13 percent black.

The University of Mississippi, 9 percent black.

Thousands of blacks have attended Delta State, which petitioners emphasize is fairly close to Mississippi Valley State University.

Delta State University is 23 percent black.

There are as many black students in the five–

John Paul Stevens:

May I just ask about those figures?

Are those the figures shown by the record or are those current figures?

William F. Goodman, Jr.:

–They’re current and they’re almost the same.

John Paul Stevens:

But the ones in the record don’t show those figures, do they?

William F. Goodman, Jr.:

They’re awfully close to that, Your Honor.

John Paul Stevens:

Well, I had a figure, the latest figure for the University of Mississippi was 5.9 percent black, in the record.

Is there a later figure in the record higher than 5.9 percent?

William F. Goodman, Jr.:

I’m sure there is, Your Honor.

That don’t sound right to me.

I thought the lowest was 7.

I could be wrong about that.

Today’s is 9.

John Paul Stevens:

Well, how are we going to verify that today’s figures, to be sure they’re right?

William F. Goodman, Jr.:

We’ll verify them however we need to.

John Paul Stevens:

You criticize your opponent for trying to retry the case and now you’re giving us facts that I understand are not part of the record.

William F. Goodman, Jr.:

Well, I apologize for that.

William H. Rehnquist:

What does the record show?

William F. Goodman, Jr.:

The record shows that at the time of the trial there was as many black students in the five predominantly white schools as there are in Alcorn State University and Mississippi State University combined.

The record shows that approximately one-third of the black students that are in 4-year institutions are in what’s called a predominantly white institution.

Another approximate third is in Jackson State University.

And the final third is in Alcorn, or in Alcorn and Mississippi Valley.

But choice is no longer the bottom line issue.

Let’s be candid.

The debate here today centers not on choice, but on the three predominantly black universities.

There is and there has been substantial black presence in the predominantly white institutions.

The debate is whether any institution can claim a constitutional right to be a certain size or to offer certain programs or to be the flagship.

Now the United States said in its opening brief that it’s students and not colleges who have equal… entitlement to equal protection.

And I’m not clear right this minute whether the Government has changed its position on that point or not.

We are not disputing the existence of excellent cultural and societal reasons for preservation of the black college.

There are.

We are not discounting Mississippi’s commitment to the enhancement of its predominantly black institutions.

The commitment is on the record.

And this is right from the record.

Jackson State University has received mission enhancement for the past 25 years.

The United States expert went so far as to put Jackson State in the forefront of predominantly black institutions in this country.

Jackson State is far better resourced than Delta State or Mississippi University for Women.

Alcorn State is better resourced than Mississippi University for Women.

The United States expert testified straight out that the three predominantly black institutions have received equitable facilities funding for 30 years.

All funding is based on genuine educational criteria, except for one fact.

The schools that are underfunded, the schools that are treated the least favorably, financially, according to their mission, are the three comprehensive predominantly white institutions, but which incidentally, collectively, are 12 percent black.

William H. Rehnquist:

What do you mean by the term “underfunding”, “underfunded”?

William F. Goodman, Jr.:

That’s a good question, sir.

And that’s what we hear.

The candid fact is that all of our institutions are underfunded in the sense that they do not receive–

William H. Rehnquist:

You just used the term in argument a moment ago.

I want to know what you meant by it when you used it.

William F. Goodman, Jr.:

–When I think that all of our institutions are underfunded because they don’t get enough to do the job we would like for them to do, the ones most underfunded are the three predominantly white–

William H. Rehnquist:

You still haven’t told me what you mean by the word “underfunded”.

William F. Goodman, Jr.:

–Insufficient money in the eyes of educators to adequately do the best job with the programs you have for the students.

William H. Rehnquist:

So it’s kind of… not being underfunded would be kind of an educational ideal?

William F. Goodman, Jr.:

Yes, sir.

You have enough money to–

William F. Goodman, Jr.:

Yes, sir.

Our petitioner is saying that disproportionate amounts of money should follow black students.

If so, a large part of that money should be directed to the five predominantly white institutions because there are many blacks enrolled there.

Sandra Day O’Connor:

–May I inquire?

If the evidence established that, at least historically, the predominantly black universities were underfunded, perhaps not today, but historically, with the result that there may be deficiencies there in physical plant and other areas that still remain today from that historical underfunding, and if the facts showed that that was caused by State action, do you think the remedy then has to address itself to those present deficiencies that might have been caused by prior discriminatory funding?

William F. Goodman, Jr.:

No, I do not.

In the first place–

Sandra Day O’Connor:

I would have thought maybe that’s what our cases would have required in terms of remedy.

William F. Goodman, Jr.:

–In the first place, the fact that an institution is smaller and receives less money does not mean that it is not an adequate institution.

A lot of us went to colleges that were very small and did not think that we got an inadequate education.

The whole concept of higher education is built on diversity.

Larger schools, smaller schools, rural schools, urban schools.

And the attempt that’s coming now in this lawsuit is an attempt to somehow say that every institution is entitled to be a certain size or to have a certain number of facilities or a certain number of programs.

And we dispute that.

Clarence Thomas:

Mr. Goodman, is there any distinction between a school that is small or underfunded for… as a result of educational reasons in the past and a school that is small and underfunded as a result of prior segregation?

William F. Goodman, Jr.:

I don’t know that I can… that I quite follow that, sir.

Clarence Thomas:

Well, your argument is that you cannot or this Court cannot make judgments or individuals cannot expect to attend fully-funded or better-funded schools.

And you give as examples Delta State being underfunded.

My question is if a school is underfunded as a result of prior segregation policies, is there any difference between that school and its current condition and the school that has never been discriminated against?

William F. Goodman, Jr.:

In today’s world, no, because we have absolute, genuine freedom of choice.

Clarence Thomas:

So your argument then would have been that 20 years ago you had freedom of choice?

William F. Goodman, Jr.:

No, sir.

That’s not my argument.

But today we have freedom of choice and we’ve had that finding.

William F. Goodman, Jr.:

And we’ve had it for almost 20 years.

What the issue boils down to–

William H. Rehnquist:

Let me follow up on Justice Thomas’ question.

Is it your position, then, that if the State of Mississippi on a particular day in the 1960’s says from now on there are no racial barriers to going to any of our schools, there’s a uniform admission test, we are presently not discriminating, nothing more is required of it even though in the past the… there were historically black schools by law and by custom?

William F. Goodman, Jr.:

–No, and not in the slightest.

And one of the things that I came up here to try to say, and I’m glad you asked the question, is that good lawyers who appeal cases often like to say for you what your position is.

And these gentlemen say that that is our position.

And that is not our position.

John Paul Stevens:

This is what the court of appeals said your position was.

William F. Goodman, Jr.:

I don’t think so.

John Paul Stevens:

It’s page 26(a) of your… that you satisfy your constitutional obligation, quote,

“by discontinuing prior discriminatory practices and adopting and implementing good faith, race-neutral policies and procedure. “

But there is no affirmative action obligation.

That last is my statement.

William F. Goodman, Jr.:

Yes, sir.

And I don’t agree with that.

John Paul Stevens:

Oh, you don’t defend that rationale for the court of–

William F. Goodman, Jr.:

I do defend what the court of appeals… I don’t think that’s fairly stated as being the sole rationale for what the court of appeals did.

John Paul Stevens:

–If it were the sole rationale, would you agree it’s unacceptable?

William F. Goodman, Jr.:

No, sir, I would not.

If I can explain that because I think that’s why we are here.

In the first place, factually, Mississippi has never hidden her open access light under a bushel.

What this trial was about was the affirmative efforts that went along with the process of doing away with discriminatory practices, discontinuing those and adopting and implementing new ones.

So as a matter of fact, there’s anybody who contends that all we did, and that we say that all in the world we had to do, was wake up one day and announce that we have new policies.

Anyone who says that, candidly, has not read this record and is, in effect, challenging the integrity of the district court and, indeed, the en banc court of appeals, because that’s what we had a trial about.

What we did… let’s talk about duty because that’s what, perhaps, the case is about.

By what standard is Mississippi’s conduct to be judged?

Certainly the standard can’t be dependent upon a certain statistical racial balance at institutions within the system.

And I believe both of the petitioners concede that, although they open their reply briefs with a statistical predicate.

The standard cannot be to put an obligation on the State to control student choice.

William F. Goodman, Jr.:

Surely the State is not obliged to compel students to go to college one place or another.

Surely the State is not required to go to the outer limit of having to exhaust every alternative to maximize integration, including restructuring the higher education system today because of discrimination 20 or 25 years ago.

Here’s what I think the duty is.

Byron R. White:

Do you know, counsel, what the purpose of having this particular admission policy that the United States objects to?

Why does the university have that?

William F. Goodman, Jr.:

Yes, sir.

I know exactly why.

And the record is filled with testimony on that.

The standard that exists today came about in 1976.

It didn’t come about in 1962.

It came about in 1976.

Yes, we had an ACT in 1962.

If there’s something wrong with having one today–

Byron R. White:

But you have a different admission policy for these so-called black universities than for the other, the white universities.

William F. Goodman, Jr.:

–We do.

And I’ll–

Byron R. White:

What’s the purpose of that?

William F. Goodman, Jr.:

–The purpose of that is that in 1976 it was felt that to raise the standard at those particular universities any higher would, in effect, perhaps put them out of business.

Byron R. White:

You mean to raise the black universities any higher?

William F. Goodman, Jr.:

Yes, sir.

Byron R. White:

But in ’76 you did the raise the admissions to where the other universities–

William F. Goodman, Jr.:

No, sir, they were already at a 15, and they were kept at a 15.

Byron R. White:

–Well, how long had they had the… had the discriminatory or the different… different admission policies been in existence?

William F. Goodman, Jr.:

Well, in 1976, when the school officials took a hard look at the admissions standards, there then existed some for the comprehensive universities.

But what they found was that under all sorts of unenforced exception policies there were people in those schools who had made 2’s, 3’s, 4’s, 5’s on ACT tests, and it was felt that this should be a system that would somehow operate to have people going to college who were to some degree ready for a college education.

Now, please understand, it’s almost embarrassing to talk about our admission standards because they’re so low.

The 15 is barely reading at a college level, but every institution permits exceptions down to a 9–

Well–

William F. Goodman, Jr.:

–Which is barely reading at a junior high school level.

Byron R. White:

–Let me put another… let me put my question at another way.

Byron R. White:

Why does the university… why does the State oppose adopting the admissions policy that the United States suggests?

William F. Goodman, Jr.:

The United States expert declined at trial to suggest a policy.

Byron R. White:

Well, I know, but I… you’ve heard in this… you’ve heard the Solicitor General say that you should have a different admissions policy.

William F. Goodman, Jr.:

I’ve heard what he said.

Byron R. White:

And he’s urging that, and why… why… why does the State oppose that?

What bad result–

William F. Goodman, Jr.:

He says… he says the State should use grades.

If he means by that that an applicant should make a certain score on a test and achieve a certain grade point average in high school, then he wants to… and up the standards… and by the way they should be upped.

But we do use grades, you see.

Byron R. White:

–Well, do you… do you… why don’t you just answer my question–

William F. Goodman, Jr.:

I’m sorry, sir.

Byron R. White:

–that… why do you oppose adopting the admissions standards that… that General Starr thinks you should adopt?

You understand what he’s saying, I suppose?

William F. Goodman, Jr.:

He is criticizing what we have.

I’m not sure that he is proposing an alternative standard.

But he didn’t do that at trial, and I don’t think he’s doing it here now.

He’s simply–

Byron R. White:

You don’t think you can find in his brief the suggestion that… for a specific alteration of your admissions policy?

William F. Goodman, Jr.:

–As a matter of fact, I think it is… it is unbecoming of the United States Government to stand up here and–

Byron R. White:

Well, that may be so, but as unbecoming as it might be, why does the State oppose that particular admissions policy?

What result would ensue that the State doesn’t want to ensue?

William F. Goodman, Jr.:

–I don’t think any.

I don’t think any.

What the State is doing is defending the practice that it had at the time of trial, and defended it at trial, and defended it into the court of appeals, and defends it here.

William H. Rehnquist:

Your position, then, is if the present policy of the State satisfies constitutional requirements, you shouldn’t be required by a court to change to the Solicitor General’s proposed policy–

William F. Goodman, Jr.:

Yes, sir.

William H. Rehnquist:

–even though it might not have any educational disadvantages?

William F. Goodman, Jr.:

Yes, sir.

That’s exactly right.

Anthony M. Kennedy:

You were going to tell us what the measure of your duty is.

Anthony M. Kennedy:

It’s not to assign by race.

It’s not to use every last means to cause–

William F. Goodman, Jr.:

To maximize integration.

Anthony M. Kennedy:

–But it is… and then that’s where you were stopped.

What is–

William F. Goodman, Jr.:

It is to disestablish segregation imposed by law.

It is to discontinue prior discriminatory practices.

It is to adopt wholly racial-neutral admissions policies.

It is to make whatever opportunities the State affords equally available to all.

There is to be no racial exclusion of individuals.

There must be freedom to choose, and all of this must be done genuinely and in good faith.

Now–

John Paul Stevens:

–May I incerrupt again just for one second?

Is there any obligation in your view on the part of the State to take affirmative action to overcome the effects of prior discrimination?

William F. Goodman, Jr.:

–Yes.

John Paul Stevens:

That’s something beyond what you’ve described up to now.

William F. Goodman, Jr.:

I was going to try to address that right now.

Thank you, sir.

In my view, with due deference, it is pure semantics to suggest that the words “positive steps”, or “affirmative steps”, or “overcoming effects”, or any of those words mean more or require more of the State than what I just said.

I think we’re saying the same thing by using different words.

David H. Souter:

Well, the words sound like the rhetoric of the Bazemore 4-H analysis, and I guess I share Justice Scevens’ perplexity.

I don’t understand, as you explain the standard, exactly what those steps beyond Bazemore 4-H might be.

William F. Goodman, Jr.:

Well, in… on this record… on this record we proved that for years and years, and altogether–

David H. Souter:

Sir, I don’t… I don’t want to interrupt you unduly, but before… before you get into the facts, could you help me out at least and try to explain in what respect the standard that you have just enunciated places somehow a higher or a different obligation on you from what the Bazemore 4-H standard would apply, and then tell me how you’ve done it?

William F. Goodman, Jr.:

–I think that the Bazemore standard is all that we have to meet.

If indeed, we have to do more than the way some people interpret the Bazemore standard, we did, and the proof is there.

And either way you want to define the standard, Mississippi has met the standard.

Do vou–

Sandra Day O’Connor:

Well, Mr. Goodman, wasn’t Bazemore grounded in the fact that the segregation in those clubs was not actributable to the State?

I mean, wasn’t that fundamentally what was going on in that case, and we have a different situation here.

William F. Goodman, Jr.:

–We have the same situation here, with deference.

We have a situation where at one time there were all white and all black clubs, but then we had absolute, genuine freedom of choice, and so the continuing racial identifiability was not deemed to be a continuation of the prior discriminatory practices.

Anthony M. Kennedy:

Justice O’Connor can protect her own question, but it seems to me you haven’t answered it.

The proposition was that in this case we have racial identifiability caused by the State, and what we’re asking is whether or not that doesn’t imply an affirmative, positive, a mandatory duty on the part of the State to correct it?

William F. Goodman, Jr.:

Yes, sir, and we’ve done that.

Anthony M. Kennedy:

And that… but that’s not Bazemore.

William F. Goodman, Jr.:

Well, that’s where I simply disagree, because I think we are engaged to some degree, with deference, in a semantical exercise, because to me, when you really analyze it, if you say, not hiding your light under a bushel, but being candid, if you discontinue what you used to do, if you indeed adopt new policies and practices, and if you indeed implement those, and if everybody knows it and are encouraged to participate, then to me that’s the same thing as saying well, you have an affirmative duty to do something about the past.

Antonin Scalia:

Isn’t there a racial identifiability caused by the State in Bazemore?

William F. Goodman, Jr.:

Yes, sir, that’s the way I read it.

Precisely.

David H. Souter:

But isn’t the difference that… and I’m… I may be wrong on this, but I thought the crucial difference was that after the Bazemore policies had been modified there wasn’t a kind of administrative structure in place which, by continuing to reflect the old policies, encouraged their continuation.

A 4-H club is not structured with all of the administrative and organizational baggage of a university.

Isn’t that the difference?

William F. Goodman, Jr.:

Well, I think that… that whatever was required for 4-H clubs to genuinely discontinue the past and implement new procedures for the future had to be done, and here what–

David H. Souter:

Well, that’s true by definition, isn’t it?

I mean, I don’t… that doesn’t tell me anything.

William F. Goodman, Jr.:

–Well, I’m sorry, because… as I see it, and maybe I’m being entirely too simplistic, as I see it, Bazemore of course is an answer to this case, but it doesn’t have to be the only answer, because if we want to read all of your precedents… and we’re concerned about the fact that we do have a duty, and no question about that, and we do have an obligation.

The point is, we’ve undertaken, and whether we define where we come out at the end, in Bazemore language, or whether we define it… define it in other language such as affirmative efforts, we reach the same point.

John Paul Stevens:

May I… may I ask you one other question about your position?

William F. Goodman, Jr.:

Yes.

John Paul Stevens:

At what point in time, in your understanding of your obligation under title VI and also under the Constitution were you in complete compliance with the law?

At what date would you say?

William F. Goodman, Jr.:

That’s a good question.

John Paul Stevens:

I’d like the answer.

William F. Goodman, Jr.:

We certainly were at the time of trial.

We certainly were–

John Paul Stevens:

No, I’m trying to understand the… your theory, and your answer will help me understand your theory.

William F. Goodman, Jr.:

–After the new policies, the affirmative effort–

John Paul Stevens:

Give me a date.

I can figure out from the date you give me what was in effect at that time.

William F. Goodman, Jr.:

–By… by 1980.

John Paul Stevens:

That’s the earliest date.

William F. Goodman, Jr.:

No, sir, I don’t think so.

John Paul Stevens:

What is the date on which you believe under your theory of the case you became in compliance with the law?

William F. Goodman, Jr.:

Mid-to-late 1970’s.

John Paul Stevens:

Thank you.

William F. Goodman, Jr.:

In a nutshell, the duty is met if choice is there.

The duty is directly tied to the degree of choice individuals enjoy.

I think when you read carefully what the United States says, when all is said and done the United States acknowledges that the duty to disestablish is met when in fact prior discrimination ceases and nondiscriminatory policies are in place.

If racial identifiability is an unlawful effect or vestige or remnant, then the schools themselves are the effect.

If you are convinced… and I don’t think you are… that the predominantly white institutions must lose their racial identity to be legal, then the same is true, as well, for the predominantly black institutions maintained by the State.

What I did not get to cover, but it’s very crucial, and I don’t want to sit down without being sure that we all understand it’s very crucial: that the crux of this case is not about choice at all.

It’s not about the careful definition of duty.

The crux of this case is a belief by the petitioners that predominantly black institutions are entitled to be enhanced at the hands of the State… not about choice at all, not about duty.

That’s the crux of this lawsuit.

And the fact is that the black college in this country will be preserved.

It will be preserved by alumni, friends, legislators, private support… it will be preserved because it ought to be preserved, but it cannot be preserved by judicial decree.

With all deference, what to do now that freedom of choice is a fact, what to do now about further enhancing black… predominantly black institutions, if the State can afford it and if it makes educational sense, is up to the… candidly, is up to the executive branch of Government, and the legislative branch of Government, and is none of your–

Byron R. White:

Would you say that if it were perfectly clear to you that the facilities, for example, at these so-called black colleges were nowhere as near equal to the facilities at the so-called white universities?

William F. Goodman, Jr.:

–I would, as a matter of law, but the record will show that the facilities are very good at all of the institutions.

I thank the Court.

William H. Rehnquist:

Thank you, Mr. Goodman.

Mr. Chambliss, you have 3 minutes remaining.

Alvin O. Chambliss, Jr.:

Your Honor, the facilities talk about as the grand jury condemned, Mississippi Valley State has two buildings… and it’s in my record… that just stand… look so good from the highway.

When Brown talked about stigmatization, he… they talked about… if you’re going to get an education, you’re in a room with showers.

I mean, you’ve got shower… hot… you don’t have air conditioning.

But we’re not getting into that.

Somebody here… and I think you want to know some facts about, what fetters choice.

Our definition of fetters is a factor which prevents choice or promote racial choices.

Now, what is the fetter here?

Alvin O. Chambliss, Jr.:

(1) We’ve got the ACT.

Those are finding, intentional discrimination.

We’ve got Underwood here, Hunter v. Underwood that say even though it… well, I don’t have to tell you about that.

We have the staff makeup, and the programs’ disparities.

Now, when you talk about staff makeup, he talks about 30 percent of the black students, but he don’t want to talk about the 98 percent white faculty.

He don’t want to talk about the 1 percent black administrator.

He don’t want to talk about apartheid, because you… in higher education, if you can’t vote you just don’t… and you’ve got to be tenured, and you’ve got to be full professor.

Staff makeup, the racial hostility at the University of Mississippi… and I don’t want to dump… because I love Mississippi.

I’m from Mississippi, and I graduated from the school there.

But the fact is that there’s a problem at the University of Mississippi, and it’s a racial problem.

And I had to give to you all… and I’ll brief the facts, but the judge basically was laboring under a misapplication of the law.

And he found facts based on the standard that was sold to him by our opponent here.

And that was basically the standard is you… you do not… you implement… well, you declare on paper open admission policies and you make… you know, you make a good faith effort to come up with something that is race neutral.

Now what that does, as I see it, is not… we’re not talking about race neutral.

What you’re talking about under Brown and the cases that this Court has dealt with, we… we’ve talked about the “make whole”.

What is it?

Louisiana v. United States, where the Court has a right and obligation, a duty to eradicate.

William H. Rehnquist:

Thank you, Mr. Chambliss.

Alvin O. Chambliss, Jr.:

Thank you.

William H. Rehnquist:

The case is submitted.