United States v. Fordice, 505 U.S. 717, 44 (1992)

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760

UNITED STATES v. FORDICE

Opinion of Scalia, J.

phy that underlies Green. Just as vulnerable, of course, would be all other programs that have the effect of facilitating the continued existence of predominantly black institutions: elevating an HBI to comprehensive status (but see ante, at 740-741, where the Court inexplicably suggests that this action may be required); offering a so-called Afrocentric curriculum, as has been done recently on an experimental basis in some secondary and primary schools, see Jarvis, Brown and the Afrocentric Curriculum, 101 Yale L. J. 1285, 1287, and n. 12 (1992); preserving eight separate universities, see ante, at 741-742, which is perhaps Mississippi's single policy most segregative in effect; or providing funding for HBI's as HBI's, see 20 U. S. C. §§ 1060-1063c, which does just that.

But this predictable impairment of HBI's should come as no surprise: for incidentally facilitating—indeed, even tolerating—the continued existence of HBI's is not what the Court's test is about, and has never been what Green is about. See Green, 391 U. S., at 442 ("The Board must be required to formulate a new plan and . . . fashion steps which promise realistically to convert promptly to a system without a 'white' school and a 'Negro' school") (footnote omitted). What the Court's test is designed to achieve is the elimination of predominantly black institutions. While that may be good social policy, the present petitioners, I suspect, would not agree; and there is much to be said for the Court of Appeals' perception in Ayers, 914 F. 2d, at 687, that "if no [state] authority exists to deny [the student] the right to attend the institution of his choice, he is done a severe disservice by remedies which, in seeking to maximize integration, minimize diversity and vitiate his choices." But whether or not the Court's antagonism to unintegrated schooling is good policy, it is assuredly not good constitutional law. There is nothing unconstitutional about a "black" school in the sense, not of a school that blacks must attend and that whites cannot, but of a school that, as a consequence of private choice

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