United States v. Fordice, 505 U.S. 717, 43 (1992)

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Cite as: 505 U. S. 717 (1992)

Opinion of Scalia, J.

Ayers v. Allain, 674 F. Supp., at 1555; Ayers v. Allain, 914 F. 2d 676, 690 (CA5 1990) (en banc). Given that finding, the District Court should have required Mississippi to prove that its continued use of ACT requirements does not have a racially exclusionary purpose and effect—a not insubstantial task, see Freeman v. Pitts, 503 U. S. 467, 503 (Scalia, J., concurring).

III

I must add a few words about the unanticipated consequences of today's decision. Among petitioners' contentions is the claim that the Constitution requires Mississippi to correct funding disparities between its HBI's and HWI's. The Court rejects that, see ante, at 743—as I think it should, since it is students and not colleges that are guaranteed equal protection of the laws. See Sweatt v. Painter, 339 U. S. 629, 635 (1950); Missouri ex rel. Gaines v. Canada, 305 U. S. 337, 351 (1938). But to say that the Constitution does not require equal funding is not to say that the Constitution prohibits it. The citizens of a State may conclude that if certain of their public educational institutions are used predominantly by whites and others predominantly by blacks, it is desirable to fund those institutions more or less equally.

Ironically enough, however, today's decision seems to prevent adoption of such a conscious policy. What the Court says about duplicate programs is as true of equal funding: The requirement "was part and parcel of the prior dual system." Ante, at 738. Moreover, equal funding, like program duplication, facilitates continued segregation—enabling students to attend schools where their own race predominates without paying a penalty in the quality of education. Nor could such an equal-funding policy be saved on the basis that it serves what the Court calls a "sound educational justification." The only conceivable educational value it furthers is that of fostering schools in which blacks receive their education in a "majority" setting; but to acknowledge that as a "value" would contradict the compulsory-integration philoso-

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