752
Opinion of Scalia, J.
with other policies, such as differential admissions standards"); ante, at 741 ("[W]hen combined with the differential admission practices and unnecessary program duplication, it is likely that the mission designations . . . tend to perpetuate the segregated system"). It is interesting to speculate how university administrators are going to guess which practices a district judge will choose to aggregate; or how district judges are going to guess when disaggregation is lawful.
The Court appears to suggest that a practice that has been aggregated and condemned may be disaggregated and approved so long as it does not itself "perpetuat[e] the segregated higher education system," ante, at 742—which seems, of course, to negate the whole purpose of aggregating in the first place. The Court says:
"Elimination of program duplication and revision of admissions criteria may make institutional closure unnecessary. . . . [O]n remand this issue should be carefully explored by inquiring and determining whether retention of all eight institutions itself . . . perpetuates the segregated higher education system, whether maintenance of each of the universities is educationally justifiable, and whether one or more of them can be practicably closed or merged with other existing institutions." Ibid.
Perhaps the Court means, however, that even if retention of all eight institutions is found by itself not to "perpetuat[e] the segregated higher education system," it must still be found that such retention is "educationally justifiable," or that none of the institutions can be "practicably closed or merged." It is unclear.
Besides the ambiguities inherent in the "restricting choice" requirement and the requirement that the challenged state practice or practices perpetuate segregation, I am not sanguine that there will be comprehensible content to the to-be-defined-later (and, make no mistake about it, outcome-
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