In The

Supreme Court of the United States




Decided June 26, 1992

Justice O’Connor, Concurring


United States v. Fordice, 505 U.S. 717 (1992), is a United States Supreme Court case that resulted in an eight to one ruling that the eight public universities in Mississippi had not sufficiently integrated and that the state must take affirmative action to change this under the Equal Protection Clause. The Court found that, although the state had eliminated explicit prohibitions on the admission of black students to institutions including the University of Mississippi, Mississippi State University, and the University of Southern Mississippi, the Court of Appeals had not properly reviewed the set of discriminatory policies used by the state to suppress black enrollment at these schools. On this point, the Court stated that "if 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."

Topic: Civil Rights*Court vote: 8–1
Note: No other Justices joined this opinion.
Holding: The eight public universities in Mississippi had not sufficiently integrated and that the state must take action to change this under the Equal Protection Clause. The system was not declared unconstitutional; simply the court ruled that more action needed to be taken to ensure integration.
Citation: 505 U.S. 717 Docket: 90–1205Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring.

I join the opinion of the Court, which requires public universities, like public elementary and secondary schools, to affirmatively dismantle their prior de jure segregation in order to create an environment free of racial discrimination and to make aggrieved individuals whole. See Brown v. Board of Education, 349 U. S. 294, 299 (1955); Milliken v. Bradley, 418 U. S. 717, 746 (1974). I write separately to emphasize that it is Mississippi's burden to prove that it has undone its prior segregation, and that the circumstances in which a State may maintain a policy or practice traceable to de jure segregation that has segregative effects are narrow. In light of the State's long history of discrimination, and the lost educational and career opportunities and stigmatic harms caused by discriminatory educational systems, see Brown v. Board of Education, 347 U. S. 483, 494 (1954); Sweatt v. Painter, 339 U. S. 629, 634-635 (1950); McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637, 640-641 (1950), the courts below must carefully examine Mississippi's proffered justifications for maintaining a remnant of de jure segregation to ensure that such rationales do not merely mask the perpetuation of discriminatory practices. Where the State can accomplish legitimate educational objectives through less segregative means, the courts may infer lack of good faith; "at the least it places a heavy burden upon the [State] to explain its preference for an apparently less effective method." Green v. School Bd. of New Kent County, 391 U. S. 430, 439 (1968). In my view, it also follows from the State's obligation to prove that it has "take[n] all steps" to eliminate policies and practices traceable to de jure segregation, Freeman v. Pitts, 503 U. S. 467, 485 (1992), that if the State shows that maintenance of certain remnants of its prior system is essential to accomplish its legitimate goals, then it still must prove that it has counteracted and minimized the segregative impact of such policies to the extent possible. Only by eliminating a remnant that unnecessarily continues to foster segregation or by negating insofar as possible its segregative impact can the State satisfy its constitutional obligation to dismantle the discriminatory system that should, by now, be only a distant memory.

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