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Colleges told to end legacy of segregation Supreme Court's landmark ruling affects state schools

THE BALTIMORE SUN

WASHINGTON -- Almost four decades after the Supreme Court's historic ruling to desegregate public schools, the conservative court voted 8-1 yesterday to order state colleges and universities to obey that decision fully.

In the new landmark decision, announced without a hint of drama, the court laid down unusually specific mandates on how to undo the remnants of official policies from the past that kept the races separated in public colleges.

The ruling, reached in the cases of U.S. vs. Fordice and Ayers vs. Fordice, may rank historically with Brown vs. Board of Education, the 1954 desegregation ruling that started the whole process of undoing segregated public education.

The sweep of the decision was grand, potentially reaching all the Deep South and border states -- including Maryland -- that in the past had laws requiring racially segregated higher education systems. It grewout of a 17-year-old dispute over continued separation of the races in the Mississippi state college system.

The decision did not appear to apply to Northern states that had never had officially segregated colleges.

Maryland officials in the attorney general's office said it was not clear how the decision would affect the state's public colleges, which have been under federal review for civil rights violations since 1969.

Justice Byron R. White, who wrote the complex main opinion, told the courtroom of the ruling in a bland, 30-second announcement that revealed nothing of the decision's scope. His 24-page opinion contained no soaring rhetoric, and it read like a lawyer's memo.

Over the lone objection of Justice Antonin Scalia, the court's most conservative member, the court said the Brown decision reached beyond elementary and high schools to the college level, imposing on state officials an "affirmative duty" to eradicate their past college segregation.

That may require closing some colleges, shifting funding and programs and broadening the standards to judge students' college ability, Justice White indicated.

Justice Scalia, saying the ruling was so complex that he suspected no one would have "the slightest idea how to apply" it, said it would lead to years of new lawsuits.

He added: "Nothing good will come of this judicially ordained turmoil, except the public recognition that any court that would knowingly impose it must hate segregation. We must find some other way of making that point."

The decision marked the first time that the newest justice,

Clarence Thomas, had taken a position as a judge on an issue of racial segregation, although as a government official he had criticized some of the court's post-1954 school desegregation rulings as too broad.

Mr. Thomas is only the second black to sit on the court. The black justice he succeeded, Justice Thurgood Marshall, helped bring about the Brown decision as a famous civil rights lawyer 38 years ago.

Mr. Thomas, who as a boy in rural Georgia experienced segregation firsthand, went along with the new decision but wrote a separate opinion to express two worries about it: that it was so broad it might force states to close or deny extra funding to all-black colleges, and that it was so broad that it might lead to "radical" remedies for past segregation.

He opened his opinion with a quotation defending black schools, from W. E. B. Du Bois, the founder of the movement that evolved into the National Association for the Advancement of Colored People. Justice Thomas used that quote to help make his point about the need to preserve black colleges.

"It would be ironic, to say the least," Mr. Thomas wrote, "if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges."

Justice White's opinion conceded that the ruling might require the closing of some colleges. But he said the court was not deciding that issue finally at this point, nor was it settling whether it would be constitutional to spend added funds to maintain historic all-black colleges.

The decision focused directly on the 144-year-old state university system in Mississippi, and it indicated that the court believed that system still had "unconstitutional remnants" of decades of intentional racial separation. The court sent the cases back to lower federal courts to look more closely at those remnants.

Mississippi officials insisted they had done all that they needed to do constitutionally, because they now had "freedom-of-choice" policies, allowing any student to enroll at any college, regardless of the student's race or the college's past image as an all-white or all-black institution.

The court rejected that argument flatly. It made clear that it was not enough for states that once had segregated colleges to adopt race-neutral policies on admissions, financing and educational programming at public colleges, or policies that simply told all students they were free to choose any college they like.

If any policies continue in existence any aspect of the old segregated system, those policies must be thrown out or else justified as educationally sound, the court declared.

Before yesterday, it was already clear that it would be unconstitutional for any public college to adopt any policy that discriminated intentionally on the basis of race.

What had remained uncertain, however, was the remaining constitutional duties of those states that had made segregation of colleges their official policy in the past. The new decision removed any doubt about that, too, by describing in pointed detail what states must do to satisfy their obligation to dismantle such a past system.

The basic constitutional declaration that emerged yesterday had these key ingredients:

First, the court said states with a prior dual-race system in their colleges must wipe out any policies or practices that could be traced back to that old system, if those "continue to foster segregation" by having "discriminatory effects."

Any such policies must be changed, "to the extent practicable and consistent with sound educational practices." That duty exists, the court stressed, even if the policies were not now being kept in force with the intent to discriminate.

Second, if some current policies have a discriminatory impact, falling more harshly on minority students, those need not be eliminated if they are not traceable to past segregation, and if they were not adopted or maintained to achieve bias.

Third, officials may have to justify such things as policies that channel students to different colleges according to race, because of their scores on standardized tests; policies of duplicating programs at colleges to keep them "separate but equal"; policies of classifying colleges for special educational missions; and policies that keep all former white and all former black colleges in existence.

The Constitution requires that students have choice, Justice White stressed, but the choice must be "truly free" and not channeled.

What Maryland may need to do under the ruling must await further study, state officials indicated.

The new decision may be a factor in the state's defense of a blacks-only scholarship program at the University of Maryland at College Park, which was challenged successfully in court by a Hispanic student.

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