738
Opinion of the Court
current requirement is traceable to that decision and seemingly continues to have segregative effects, and the State has so far failed to show that the "ACT-only" admissions standard is not susceptible to elimination without eroding sound educational policy.
A second aspect of the present system that necessitates further inquiry is the widespread duplication of programs. "Unnecessary" duplication refers, under the District Court's definition, "to those instances where two or more institutions offer the same nonessential or noncore program. Under this definition, all duplication at the bachelor's level of nonbasic liberal arts and sciences course work and all duplication at the master's level and above are considered to be unnecessary." 674 F. Supp., at 1540. The District Court found that 34.6 percent of the 29 undergraduate programs at historically black institutions are "unnecessarily duplicated" by the historically white universities, and that 90 percent of the graduate programs at the historically black institutions are unnecessarily duplicated at the historically white institutions. Id., at 1541. In its conclusions of law on this point, the District Court nevertheless determined that "there is no proof" that such duplication "is directly associated with the racial identifiability of institutions," and that "there is no proof that the elimination of unnecessary program duplication would be justifiable from an educational standpoint or that its elimination would have a substantial effect on student choice." Id., at 1561.
The District Court's treatment of this issue is problematic from several different perspectives. First, the court appeared to impose the burden of proof on the plaintiffs to meet a legal standard the court itself acknowledged was not yet formulated. It can hardly be denied that such duplication was part and parcel of the prior dual system of higher education—the whole notion of "separate but equal" required duplicative programs in two sets of schools—and that the present unnecessary duplication is a continuation of that practice.
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