758
Opinion of Scalia, J.
more, supra, at 408. Indeed, Bazemore was a more appealing case than these for adhering to the Green approach, since the 4-H Clubs served students similar in age to those in Green, and had been "organized in the public schools" until the early 1960's. 478 U. S., at 417.
It is my view that the requirement of compelled integration (whether by student assignment, as in Green itself, or by elimination of nonintegrated options, as the Court today effectively decrees) does not apply to higher education. Only one aspect of a historically segregated university system need be eliminated: discriminatory admissions standards. The burden is upon the formerly de jure system to show that that has been achieved. Once that has been done, however, it is not just unprecedented, but illogical as well, to establish that former de jure States continue to deny equal protection of the law to students whose choices among public university offerings are unimpeded by discriminatory barriers. Unless one takes the position that Brown I required States not only to provide equal access to their universities but also to correct lingering disparities between them, that is, to remedy institutional noncompliance with the "equal" requirement of Plessy, a State is in compliance with Brown I once it establishes that it has dismantled all discriminatory barriers to its public universities. Having done that, a State is free to govern its public institutions of higher learning as it will, unless it is convicted of discriminating anew—which requires both discriminatory intent and discriminatory causation. See Washington v. Davis, 426 U. S. 229 (1976).
That analysis brings me to agree with the judgment that the Court of Appeals must be reversed in part—for the reason (quite different from the Court's) that Mississippi has not borne the burden of demonstrating that intentionally discriminatory admissions standards have been eliminated. It has been established that Mississippi originally adopted ACT assessments as an admissions criterion because that was an effective means of excluding blacks from the HWI's. See
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