Cite as: 505 U. S. 717 (1992)
Opinion of Scalia, J.
meaning, in this last stage of decrepitude the requirement is so frail that almost anything will overcome it. Even an open-admissions policy would fall short of ensuring that student choice is unaffected by state action. The Court's results also suggest that the "restricting choice" requirement is toothless. Nothing else would explain how it could be met by Mississippi's mission designations, program duplication, and operation of all eight formerly de jure colleges. Only a test aimed at state action that "affects" student choice could implicate policies such as these, which in no way restrict the decision where to attend college. (Indeed, program duplication and continuation of the eight schools have quite the opposite effect; they multiply, rather than restrict, limit, or impede the available choices.) At the end of the day, then, the Court dilutes this potentially useful concept to the point of such insignificance that it adds nothing to the Court's test except confusion. It will be a fertile source of litigation.
Almost as inscrutable in its operation as the "restricting choice" requirement is the requirement that challenged state practices perpetuate de facto segregation. That is "likely" met, the Court says, by Mississippi's mission designations. Ante, at 741. Yet surely it is apparent that by designating three colleges of the same prior disposition (HWI's) as the only comprehensive schools, Mississippi encouraged integration; and that the suggested alternative of elevating an HBI to comprehensive status (so that blacks could go there instead of to the HWI's) would have been an invitation to continuing segregation. See Ayers v. Allain, 674 F. Supp. 1523, 1562 (ND Miss. 1987) ("Approximately 30% of all black college students attending four-year colleges in the state attend one of the comprehensive universities"). It appears, moreover, that even if a particular practice does not, in isolation, rise to the minimal level of fostering segregation, it can be aggregated with other ones, and the composite condemned. See ante, at 739-740 ("by treating [the] issue [of program duplication] in isolation, the [district] court failed to consider the combined effects of unnecessary program duplication
751
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