Cite as: 505 U. S. 717 (1992)
Opinion of Scalia, J.
State cannot operate a diverse assortment of institutions— including historically black institutions—open to all on a race-neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another. No one, I imagine, would argue that such institutional diversity is without "sound educational justification," or that it is even remotely akin to program duplication, which is designed to separate the races for the sake of separating the races. The Court at least hints at the importance of this value when it distinguishes Green in part on the ground that colleges and universities "are not fungible." Ante, at 729. Although I agree that a State is not constitutionally required to maintain its historically black institutions as such, see ante, at 743, I do not understand our opinion to hold that a State is forbidden to do so. It would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.
Justice Scalia, concurring in the judgment in part and dissenting in part.
With some of what the Court says today, I agree. I agree, of course, that the Constitution compels Mississippi to remove all discriminatory barriers to its state-funded universities. Brown v. Board of Education, 347 U. S. 483 (1954) (Brown I). I agree that the Constitution does not compel Mississippi to remedy funding disparities between its historically black institutions (HBI's) and historically white institutions (HWI's). And I agree that Mississippi's American College Testing Program (ACT) requirements need further review. I reject, however, the effectively unsustainable burden the Court imposes on Mississippi, and all States that formerly operated segregated universities, to demonstrate compliance with Brown I. That requirement, which resembles what we prescribed for primary and secondary schools in Green v. School Bd. of New Kent County, 391 U. S. 430
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