United States v. Fordice, 505 U.S. 717, 34 (1992)

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750

UNITED STATES v. FORDICE

Opinion of Scalia, J.

(1968), 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.

I

Before evaluating the Court's handiwork, it is no small task simply to comprehend it. The Court sets forth not one, but seemingly two different tests for ascertaining compliance with Brown I—though in the last analysis they come to the same. The Court initially announces the following test, in Part III of its opinion: All policies (i) "traceable to [the State's] prior [de jure] system" (ii) "that continue to have segregative effects—whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system—" must be eliminated (iii) to the extent "practicabl[e]" and (iv) consistent with "sound educational" practices. Ante, at 731. When the Court comes to applying its test, however, in Part IV of the opinion, "influencing student enrollment decisions" is not merely one example of a "segregative effec[t]," but is elevated to an independent and essential requirement of its own. The policies that must be eliminated are those that (i) are legacies of the dual system, (ii) "contribute to the racial identifiability" of the State's universities (the same as (i) and (ii) in Part III), and, in addition, (iii) do so in a way that "substantially restrict[s] a person's choice of which institution to enter." Ante, at 733 (emphasis added). See also ante, at 734-735, 738-739, 741-743.

What the Court means by "substantially restrict[ing] a person's choice of which institution to enter" is not clear. During the course of the discussion in Part IV the requirement changes from one of strong coercion ("substantially restrict," ante, at 733, "interfere," ante, at 741), to one of middling pressure ("restrict," ante, at 734, "limi[t]," ante, at 741), to one of slight inducement ("inherent[ly] self-selec[t]," ante, at 735, n. 9, "affect," ante, at 739, 742). If words have any

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