UNITED STATES OF AMERICA, PETITIONER V. RAY MABUS, ET AL. No. 90-1205 In The Supreme Court Of The United States October Term, 1990 The Solicitor General, on behalf of the United States of America, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. /1/ Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit PARTIES TO THE PROCEEDING The petitioner, plaintiff-intervenor in this action, is the United States. The plaintiffs are Mrs. Jake Ayers, Sr., Vernon B. Ayers, William B. Ayers, Hattie James, Margaret James, Leola Blackmon, Lillie Blackmon, Shirley A. Porter, Kenneth Spearman, James T. Holloway, Dave Collins, Lewis E. Armstrong, Darryl C. Thomas, Albert Joe Williams, George Bell, Johnny Sims, Thelma H. Walker, Randolph Walker, Bennie G. Thompson, Virginia Hill, B. Leon Johnson, Pamela Gipson, Janice K. Miggins, and Floyd Alexander; and a plaintiff class consisting of all black citizens residing in Mississipi, whether students, former students, parents, employees, or taxpayers, who have been, are, or will be discriminated against on account of race in receiving equal educational opportunity and/or equal employment opportunity in the universities operated by the defendant Board of Trustees. The defendants are Ray Mabus, in his official capacity as Governor of the State of Mississippi; /1/ the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi; members of the Board of Trustees, in their personal and official capacities: Cass Pennington, Joe A. Haynes, Dianne Miller, Nancy McGahey Baker, Frank Crosthwait, Jr., Will A. Hickman, J. Marlin Ivey, Bryce Griffis, William M. Jones, James W. Luvene, Sidney L. Rushing, and Dianne Walton; Delta State University, and its president, F. Kent Wyatt, in his official capacity; Mississippi State University, and its president, Donald W. Zacharias, in his official capacity; Mississippi University for Women, and its president, Clyda S. Rent, in her official capacity; the University of Mississippi, and its chancellor, R. Gerald Turner, in his official capacity; the University of Southern Mississippi, and its president, Aubrey K. Lucas, in his official capacity; and W. Ray Cleer, in his official capacity as Commissioner of Higher Education of the State of Mississippi. TABLE OF CONTENTS Question Presented Parties to the proceeding Opinions below Jurisdiction Statutory and constitutional provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The en banc opinion of the court of appeals (App., infra, 1a-44a) is reported at 914 F.2d 676. The panel opinion of the court of appeals (App., infra, 45a-103a) is reported at 893 F.2d 732. The opinion of the district court (App., infra, 104a-201a) is reported at 674 F. Supp. 1523. JURISDICTION The judgment of the court of appeals upon rehearing en banc was entered on September 28, 1990. On December 18, 1990, Justice Scalia extended the time in which to file a petition for a writ of certiorari to January 26, 1991 (a Saturday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED The Equal Protection Clause of the Fourteenth Amendment and Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, are set forth in the petition appendix (App., infra, 202a). QUESTION PRESENTED Whether Mississippi satisfied its obligation to dismantle its racially dual system of higher education, when state action continues to interfere on the basis of race with a qualified student applicant's choice of which school to attend. STATEMENT Prior to this Court's decision in Brown v. Board of Education, 347 U.S. 483 (1954), the State of Mississippi established a system of higher education based on de jure segregation of white and black students. Mississippi has since adopted what it submits are race-neutral policies and practices. The question in this case is whether Mississippi has satisfied its obligation under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, to dismantle its racially dual system of higher education. 1. Mississippi manages and controls eight public universities through the Board of Trustees of State Institutions of Higher Learning, which has plenary authority over the institutions' operations. App., infra, 106a, 109a, 114a. At the time of this Court's decision in Brown until at least 1962, all eight universities were strictly segregated by race, and public higher education in Mississippi was "both separate and unequal." App., infra, 114a. Five institutions -- the University of Mississippi, Mississippi State University, the University of Southern Mississippi, Mississippi University for Women, and Delta State University -- admitted only white students. Three institutions -- Alcorn State University, Jackson State University, and Mississippi Valley State University -- admitted only black students. Id. at 109a-115a. The racially dual system encompassed the areas of "(1) student enrollment, (2) maintenance of branch centers by the historically white universities in close proximity to the historically black universities, (3) employment of faculty and staff, (4) provision and condition of facilities, (5) allocation of financial resources, (6) academic program offerings, and (7) racial composition of the governing board and its staff." App., infra, 169a; see also id. at 114a-115a. While the white institutions offered "a full range of program offerings" at the undergraduate, graduate, and professional levels, the educational offerings at the black institutions "were limited to teacher education, agriculture and the mechanical arts, and the practical arts and trades." Id. at 114a-115a & n.2. All eight institutions remained segregated, in accordance with state law, until at least 1962, when James Meredith was admitted to the University of Mississippi under court order. App., infra, 116a. See Meredith v. Fair, 306 F.2d 374 (5th Cir.), cert. denied, 371 U.S. 828, enforced, 313 F.2d 534 (5th Cir. 1962). The other four white institutions did not admit their first black students until between 1965 and 1967. The white institutions began hiring their first black faculty members between 1970 and 1975. The black institutions admitted their first white students between 1966 and 1970, and hired their first white faculty members between 1966 and 1969. App., infra, 116a-117a. 2. The private petitioners, representing black citizens of Mississippi, initiated this action against respondents, the Governor and state educational officials, on January 28, 1975. Their complaint alleged that Mississippi had maintained the racially segregative effects of its historically dual system of public higher education, thereby violating the Fifth, Ninth, Thirteenth, and Fourteenth Amendments, 42 U.S.C. 1981 and 1983, and Title VI of the Civil Right Act of 1964, 42 U.S.C. 2000d et seq. App., infra, 105a-106a. Shortly thereafter, the United States intervened pursuant to 42 U.S.C. 2000h-2. The United States alleged that Mississippi's maintenance of the effects of its dual system of higher public education violated the Fourteenth Amendment and Title VI. In 1987, after extensive discovery and unsuccessful settlement efforts, the district court held a five-week bench trial. On December 10, 1987, the district court ruled for respondents on all issues and dismissed the case. App., infra, 108a-109a, 201a. The district court recognized that there remained significant differences between the historically white and historically black schools as to admission standards, student and faculty composition, and funding. See, e.g., App., infra, 127a-128a, 133a, 135a-138a, 156a-163a. The district court held, however, that respondents had satisfied their affirmative obligation to dismantle the dual system through the adoption of race-neutral policies and practices. Id. at 201a. The United States and the private petitioners appealed. A divided panel of the Fifth Circuit reversed and remanded the case for remedial proceedings. App., infra, 45a-103a. The court of appeals ruled that this Court's decisions in Brown and Green v. New Kent County School Board, 391 U.S. 430 (1968), which involved desegregation of compulsory elementary and secondary education systems, require respondents "to eliminate all of the 'vestiges' or effects of de jure segregation, root and branch, in a university setting." Id. at 72a. The court concluded that respondents had failed to meet that obligation. Id. at 94a. Judge Duhe dissented, relying primarily on Justice White's concurring opinion for the Court in Bazemore v. Friday, 478 U.S. 385 (1986), which held that state officials had adequately disestablished segregation of state-supported 4-H and Homemaker Clubs by allowing "voluntary choice" in attendance (id. at 407-408). App., infra, 102a-103a. Judge Duhe reasoned that because university attendance choices are "voluntarily made" (id. at 102a), the State's duty "to eliminate all vestiges of de jure discrimination 'root and branch' does not reach the university." Id. at 103a. The court of appeals granted a suggestion for rehearing en banc and vacated the panel opinion. App., infra, 2a. On rehearing, a divided en banc court affirmed the district court, concluding that "Mississippi had adopted and implemented race neutral policies for operating its colleges and universities and that all students have real freedom of choice to attend the college or university they wish." Ibid. The en banc court acknowledged that the State was "constitutionally required to eliminate invidious racial distinctions and dismantle its dual system." App., infra, 13a. In defining that duty in the higher education context, however, the court concluded that it must choose between the principles set forth in Justice White's concurring opinion for the Court in Bazemore and those set forth in Green. App., infra, 13a-14a, 20a. The en banc majority determined that Bazemore, rather than Green, provided the standard for desegregation of public universities (App., infra, 23a), stating: to fulfill its affirmative duty to disestablish its prior system of de jure segregation in higher education, the state of Mississippi satisfies its constitutional obligation by discontinuing prior discriminatory practices and adopting and implementing good-faith, race-neutral policies and procedures. Id. at 26a. The court then concluded that Mississippi had satisfied that standard in this case. See id. at 26a-37a. Judge Goldberg, joined by Judges Politz, King, and Johnson, dissented, endorsing the panel majority's opinion. App., infra, 37a-38a. Judge Higginbotham concurred in part and dissented in part. Id. at 38a-44a. In his view, the fact that Mississippi "has no constitutional duty to achieve any particular racial mix is not necessarily a full response to the more general question of whether it has discharged its duty to undo its wrong." Id. at 40a. He would have affirmed the district court's judgment that Mississippi had not engaged in intentional discrimination, but would have remanded the case for an inquiry into whether "Mississippi has discharged its duty to undo any present injury from the past." Id. at 38a n.*, 43a. Judges Politz and King joined in the dissenting portion of Judge Higginbotham's decision. REASONS FOR GRANTING THE PETITION The court of appeals' decision in this case raises important issues of national significance and is in direct conflict with decisions of the Sixth Circuit. We accordingly submit that this Court should grant the government's and the private petitioners' petitions for a writ of certiorari. 1. As the opinions below plainly indicate, there is considerable confusion over the proper legal standard against which to assess a State's obligation to disestablish a formerly de jure dual system of higher education. The resolution of that question by the court below will have a direct effect on the operation of Mississippi's eight universities and on the thousands of Mississippi citizens who are attending or wish to attend those institutions. That decision will also establish a binding legal standard for disestablishment of segregated systems of higher education in the other States within the Fifth Circuit. /2/ In addition, it may affect ongoing judicial proceedings as to the status of higher education systems in other States. /3/ Given the broad impact of the decision below, this Court should grant review to determine the scope of the affirmative duty to desegregate in the higher education context. /4/ 2. The Fifth Circuit's ruling in this case is in conflict with the law in the Sixth Circuit, as set forth in Geier v. University of Tennessee, 597 F.2d 1056, 1065 (1979), and Geier v. Alexander, 801 F.2d 799, 805 (1986). In the first Geier decision, the Sixth Circuit upheld a district court order requiring the merger of a traditionally black and a traditionally white institution located in Nashville as a part of a plan to dismantle Tennessee's dual system of higher education. The court stated that "the Green requirement of an affirmative duty applies to public higher education as well as to education at the elementary and secondary school levels * * *; it is only the means of eliminating segregation which differ." 597 F.2d at 1065. /5/ In the second Geier decision, the Sixth Circuit reaffirmed that conclusion, upholding a set-aside program that gave black students preferences for admission to graduate and professional schools. 801 F.2d at 804-805. /6/ The en banc majority in this case expressly disagreed "with both the holding and reasoning in Geier." 914 F.2d at 686. 3. We believe that the court of appeals failed to reconcile properly the principles set forth in Justice White's concurring opinion for the Court in Bazemore and the principles set forth in other opinions of this Court, including Green, that address a State's obligation to dismantle segregated systems of primary and secondary public education. The issue below was joined entirely in terms of the need to apply either the Bazemore or the Green standard. In our view, however, those two approaches are by no means mutually exclusive in the context of higher education; rather, both approaches can properly inform resolution of the ultimate question -- whether state action interferes on the basis of race with a qualified student applicant's choice of which state school to attend. Here, the actions of Mississippi taken after abolition of its de jure dual system -- in particular, continuation of a racially-biased admissions process and perpetuation of the dual system through program duplication at the historically black and historically white schools -- substantially interfered with and thus impermissibly fettered that choice. As a result, the court below erred in concluding that the State had fulfilled its constitutional and statutory obligations to treat all individuals without regard to race. Because the proper articulation of those obligations is an important issue that has divided the circuits, this Court should grant the petition. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General JOHN R. DUNNE Assistant Attorney General JOHN G. ROBERTS, JR. Deputy Solicitor General JEFFREY P. MINEAR Assistant to the Solicitor General JESSICA DUNSAY SILVER LINDA F. THOME Attorneys JANUARY 1991 /1/ Pursuant to Supreme Court Rule 35.3, the current governor of Mississippi, Ray Mabus, has been substituted for William Allain, governor at the time this case was tried. /1/ The private plaintiffs in this case filed a petition for a writ of certiorari (No. 90-6588) on December 14, 1990. /2/ The United States' complaint in United States v. Louisiana, No. 80-3300, a similar higher education desegregation case, has been dismissed as a result of the Fifth Circuit's decision in this case. We have filed a notice of appeal from that dismissal and have asked the court of appeals to stay proceedings pending action by this Court on the government's petition. /3/ On October 29, 1990, the United States District Court for the Northern District of Alabama commenced a trial on the liability issues in United States v. Alabama, Civ. No. 83-M-1676-S (N.D. Ala.), a similar higher education desegregation case. In addition, the Department of Education's Office of Civil Rights is responsible for ensuring Title VI compliance by other States that lie within the jurisdiction of five different federal circuits. /4/ This Court has not dealt with the issue before, except to affirm summarily two contradictory lower court decisions. Compare Alabama State Teachers Ass'n v. Alabama Public School & College Auth., 289 F. Supp. 784 (M.D. Ala. 1968), aff'd per curiam, 393 U.S. 400 (1969) (ASTA), with Norris v. State Council of Higher Educ., 327 F. Supp. 1368 (E.D. Va.), aff'd, 404 U.S. 907 (1971). In ASTA, the district court held that the scope of the affirmative duty to dismantle a dual system of higher education did not extend as far as in the elementary and secondary school context (289 F. Supp. at 787) and that, on the facts of that case, good faith, nondiscriminatory practices had satisfied the affirmative duty (id. at 789-790). Norris, on the other hand, rejected the contention that the duty defined in ASTA provided a "universal definition" of the scope of the duty for higher education systems (327 F. Supp. at 1372) and specifically held that higher education authorities were obligated "to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" (id. at 1373, quoting Green). Norris held the duty to be "as exacting" as in the elementary and secondary context, even though the methods used to achieve the desired end must necessarily differ. Ibid. /5/ The defendants in Geier took a position similar to that adopted by the en banc majority in this case, arguing "that the State fulfilled its constitutional obligation to establish a unitary system when it instituted an 'open-door' admissions policy" and that "the present predominantly black enrollment at TSU ha(d) resulted from the exercise of free choice by students rather than from any current unconstitutional actions of the State." 597 F.2d at 1064. The Sixth Circuit rejected that argument, stating that "(w)here an open admissions policy neither produces the required result of desegregation nor promises realistically to do so, something further is required." Id. at 1067. /6/ The Sixth Circuit rejected an argument, based on this Court's decision in Bazemore, that the program was not justified because the defendants' obligation to dismantle the former dual system had been satisfied by the adoption of "neutral admissions standards." 801 F.2d at 804. The court of appeals distinguished Bazemore, on the ground that higher education was of much greater importance than membership in 4-H clubs, and restated its holding from the first Geier decision. Id. at 804-805. APPENDIX