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

White delivers the opinion of the Court, joined by Rehnquist, Blackmun, Stevens, O'Connor, Kennedy, Souter, and Thomas.


O'Connor files a concurring opinion.


Thomas files a concurring opinion.


Scalia files an opinion concurring in the judgement in part and dissenting in part.


The Court holds that the courts below did not apply the correct legal standard in ruling that Mississippi has brought itself into compliance with the Constitution's Equal Protection Clause. If the State perpetuates policies and practices traceable to its prior de jure segregated university system that continue to have segregative effects -- whether by influencing student enrollment decisions or by fostering segregation in other facets of the system -- and such policies are without sound educational justification and can be practicably eliminated, the policies violate the Clause, even though the State has abolished the legal requirement that the races be educated separately and has established racially neutral policies not animated by a discriminatory purpose.


Thomas "write[s] separately to emphasize that this standard is far different from the one adopted to govern the gradeschool context in Green v. New Kent County School Bd., 391 U.S. 430 (1968), and its progeny. In particular, because it does not compel the elimination of all observed racial imbalance, it portends neither the destruction of historically black colleges nor the severing of those institutions from their distinctive histories and traditions. In Green, we held that the adoption of a freedom-of-choice plan does not satisfy the obligations of a formerly de jure gradeschool system should the plan fail to decrease, if not eliminate, the racial imbalance within that system."


According to Scalia, however, the Court's "requirement, which resembles what we prescribed for primary and secondary schools in Green...has no proper application in the context of higher education, provides no genuine guidance to States and lower courts, and is as likely to subvert as to promote the interests of those citizens on whose behalf the present suit was brought."


Thomas believes the lower courts' administration of the Court's standard will be "a far narrower, more manageable task than that imposed under Green."  Scalia, on the other hand, makes it crystal-clear he sees the Court's standard as "unclear."  Here are a few of the gems to be found in Scalia's opinion:

• "Before evaluating the Court's handiwork, it is no small task simply to comprehend it."
• "At the end of the day, then, the Court dilutes this potentially useful concept to the point of such insignificance that it adds nothing to the Court's test except confusion. It will be a fertile source of litigation."
• "In short, except for the results that it produces in the present case (which are what they are because the Court says so), I have not the slightest idea how to apply the Court's analysis -- and I doubt whether anyone else will."

This case further demonstrates that Scalia is more interested in precedent than Thomas.  "Application of the standard (or standards) announced today has no justification in precedent".  Among others, Scalia relies on the Brown cases -- Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), and Brown v. Board of Education, 349 U.S. 294 (1955) (Brown II) -- which "suggest that former de jure States have one duty: to eliminate discriminatory obstacles to admission."  But "[i]f we are looking to precedent to guide us in the context of higher education, we need not go back 38 years to Brown I". The Court's standard(s) "in fact runs contrary to a case decided six years ago...Bazemore v. Friday, 478 U.S. 385 (1986)", right before Scalia joined the court.  In Bazemore, the Court cabined Green to primary and secondary public schools, declining to extend it to state-financed youth clubs.


Thomas, on the other hand, seems more interested in attempting to distinguish Green than relying on other cases.  He doesn't once refer to "precedent" (which Scalia uses twice) or its Latin equivalent. While he does cite to some cases, he cites to only one Brown -- Brown I, which he quotes only once -- and doesn't once mention Bazemore.  Thomas seems to recognize that the Court's standard is, at the very least, not dictated by precedent: he refers to "the approach that we adopt today" and "the standard we announce today". 


This case also further demonstrates that Thomas is more race-conscious than Scalia, who is more colour-blind.  In Georgia v. McCollum, Thomas saw value in a black defendant being tried by a jury containing blacks; here, he sees value in a black student attending a historically black college.  Scalia, however, is more cagey on the issue: "the elimination of predominantly black institutions...may be good social policy". "But whether or not the Court's antagonism to unintegrated schooling is good policy," neither justice believes the maintenance of historically black colleges is unconstitutional under the Equal Protection Clause.  Scalia, though, doubts that their maintenance will be allowed under the Court's opinion.  Obviously Thomas doesn't read the Court's opinion that way or he wouldn't have joined it in full.  He "find[s] most encouraging" the Court's "hints". But if he reads the Court's hints correctly, then why does no other justice join his opinion? Scalia thinks Thomas is placing too much faith in what the Court says "but does not appear to mean":   

"Once the confusion engendered by the Court's something-for-all, guidance-to-none opinion has been dissipated, compare...O'CONNOR...with...THOMAS...it will become apparent that, essentially, the Court has adopted Green."