UNITED STATES COURT OF APPEALS
for the Fifth Circuit
_____________________________________
No. 93-3061
_____________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
STATE OF LOUISIANA, the Governor of Louisiana,
the LOUISIANA BOARD OF REGENTS, the BOARD OF
SUPERVISORS OF SOUTHERN UNIVERSITY and
AGRICULTURAL and MECHANICAL COLLEGE, the BOARD
OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and
AGRICULTURAL and MECHANICAL COLLEGE, and the
BOARD OF TRUSTEES FOR STATE COLLEGES and UNIVERSITIES.
Defendants-Appellants.
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
______________________________________________________
(December 10, 1993)
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
The State of Louisiana and the four governing boards of its
public colleges and universities ask that we reverse the summary
judgment granted in this desegregation case, vacate the remedial
order, and remand for trial. Because summary judgment was
improperly granted, we vacate the remedial order, reverse the
liability judgment, and remand.
I. BACKGROUND
In the civil rights era Louisiana repealed its school
segregation laws. The United States sued Louisiana in 1974
alleging that the State was still maintaining a racially
1
discriminatory system of higher education violating the Fourteenth
Amendment1 and Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d.2
In 1981 the court entered a consent decree under which
Louisiana was to begin affirmative action and enhance its
predominately black public institutions of higher education. In
December 1987 the United States moved for a hearing to determine
Louisiana's compliance with this consent decree and to determine
whether the State and the governing boards of its colleges and
universities were operating its system of public higher education
on a unitary basis.
The parties filed cross-motions for summary judgment on the
issue of liability, i.e., the question whether the State maintained
an unlawfully segregated system of higher education. The district
court ruled for the United States, holding that the State had under
1
The United States has since waived its constitutional claim.
Upon a challenge to the United States' standing to assert a
Fourteenth Amendment violation, the district court correctly
determined that the Title VI standard was the same as the
constitutional standard. United States v. Louisiana, 692 F. Supp.
642, 649-50 (E.D. La. 1988); see also United States v. Fordice, 112
S. Ct. 2727, 2738 n.7 (1992) ("[T]he reach of Title VI's protection
extends no further than the Fourteenth Amendment."); Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978) (opinion of
Powell, J.) (Title VI proscribes "only those racial classifications
that would violate the Equal Protection Clause or the Fifth
Amendment"); 438 U.S. at 352 (Brennan, White, Marshall, and
Blackmun, JJ., concurring in part and dissenting in part) ("Title
VI's standard . . . is no broader than the Constitution's.")
2
This provision states, "No person in the United States shall, on
the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal
financial assistance."
2
the consent decree failed to dismantle its racially dual structure.
United States v. Louisiana, 692 F. Supp. 642, 653-57 (E.D. La.
1988) (sometimes called the "1988 liability order"). Following
lengthy hearings before a special master on the question of remedy,
the district court directed the State to implement the special
master's recommended remedial plan as modified. United States v.
Louisiana, 718 F. Supp. 499, 515-21 (E.D. La. 1989). Primarily
this 1989 remedial order required consolidation of the State's four
higher education boards into a single board, classification of the
institutions by selective admissions and separate mission
statements, a comprehensive community college system, and
consolidating measures such as program transfer. Id. at 515-19.
During the appeal and remand of the remedial order, this Court
decided Ayers, which held that a race-neutral admissions policy
satisfies a state's obligation to desegregate. Ayers v. Allain,
914 F.2d 676 (5th Cir. 1990) (en banc). Considering Ayers and
Louisiana's open admissions, the district court then vacated its
earlier orders and granted summary judgment in favor of the State
Defendants. United States v. Louisiana, 751 F. Supp. 606, 608
(E.D. La. 1990). When Ayers was reversed, United States v.
Fordice, 112 S. Ct. 2727 (1992), this Court vacated the new summary
judgment and remanded for reconsideration in light of Fordice.
The district court then ordered the parties to show cause why
its 1988 liability order should not be reinstated and a revised
remedial order should not be entered in light of Fordice. After
responses were filed, the district court reinstated the 1988
3
liability order and entered another revised remedial order (the
"1992 order"). The State Defendants appeal.
II. JUSTICIABILITY OF LIABILITY
In a separate appeal, the Southern University Board of
Supervisors complains that the district court lacked jurisdiction
to abrogate the 1981 consent decree because the validity of the
consent decree was not a justiciable case or controversy.
The Southern Board argues that the only dispute about the
consent decree was whether the State had complied with it--not its
validity or terms. This is inaccurate. Near the end of the term
of the consent decree, when the United States moved for a
determination of Louisiana's compliance with the consent decree, it
also requested a hearing to determine "whether defendants . . . are
operating the system of public higher education on a unitary basis"
and requested an order maintaining jurisdiction over the entire
litigation. The consent decree provided for the court's continuing
jurisdiction "to insure that the Louisiana system of public higher
education is operated on a unitary basis in all respects." The
consent decree also provided that the Plaintiff could before
December 31, 1987 request the court to determine whether Defendants
were operating the system of public higher education on a unitary
basis. This is precisely what the United States did.
After the motions for summary judgment were filed, the
district court noted that the consent decree "was directed more
towards merely enhancing the State's black schools as black schools
rather than towards 'convert[ing] its white colleges and black
4
colleges to just colleges.'" 692 F. Supp. at 658 (footnote
omitted). The court found a continuing constitutional violation,
concluded that the consent decree had not dismantled the dual
system, and that a more effective remedy was required.
The Southern Board's argument that the court lacked
jurisdiction because it sua sponte took a question about which
there was no case or controversy is without merit. The parties
could not agree on whether the State had dismantled its dual
system. By the terms of the consent decree, no determination of
whether Defendants violated any law had been made. The United
States' motion put at issue the efficacy of the consent decree in
achieving a unitary system. The court retained jurisdiction to
address this issue and properly reviewed the entire question
whether the Defendants were maintaining an unconstitutional dual
system.
III. THE END OF THE CONSENT DECREE
The Southern Board next argues that the court's reason for
invalidating the consent decree in 1988--the continued racial
identifiability of the institutions--was erroneous in light of the
1992 decision in Fordice. The Southern Board is vague on what
relief it is requesting from this Court, but apparently it desires
reinstatement of the consent decree.
The Southern Board's argument centers on how Fordice changes
a state's accountability for failure to obtain racially homogenized
schools in the higher education context. We agree that racial
identifiability, while relevant under Fordice, does not define the
5
standard for determining whether a state has dismantled its dual
system (or whether a consent decree has been effective to achieve
a unitary system). As of 1992 Fordice provides the standard by
which to determine whether the state is maintaining an unlawful
dual system, and the United States is now entitled to another
hearing on the question of the State's liability, as discussed
next. But the Fordice decision does not breathe any new life into
the consent decree.
IV. FORDICE ISSUES
The State first contends that the district court based its
liability decision on nothing more than the racial identifiability
of the institutions, even though Fordice established a stricter
standard for holding a state liable for unlawful segregation. The
State argues that the 1988 liability order was based solely on
racial identifiability of the schools and boards. The Southern
Board also argues that the court misinterpreted Fordice by
presuming unlawful segregation exists if the schools are racially
identifiable.
A. The Standard: More than Racial Identifiability
We agree with the State Defendants that under Fordice, "[t]hat
an institution is predominately white or black does not in itself
make out a constitutional violation." Fordice, 112 S. Ct. at 2743.
Under Fordice liability is based on specific state policies or
practices: "[A] State does not discharge its constitutional
obligations [to dismantle its prior dual university system] until
it eradicates policies and practices traceable to its prior de jure
6
dual system that continue to foster segregation." Id. at 2735.
If the State perpetuates policies and practices traceable
to its prior system that continue to have segregative
effects--whether by influencing student enrollment
decisions or by fostering segregation in other facets of
the university system--and such policies are without
sound educational justification and can be practicably
eliminated, the State has not satisfied its burden of
proving that it has dismantled its prior system.
Id. at 2737. We read Fordice to require that each suspect state
policy or practice be analyzed to determine whether it is traceable
to the prior de jure system, whether it continues to foster
segregation, whether it lacks sound educational justification, and
whether its elimination is practicable. This is the State's burden
to show that it has dismantled its prior dual system at the
liability stage of litigation.
We read Fordice to also mandate inquiry into the soundness of
the educational justification for challenged policies and the
practicability of eliminating them in consideration of remedy once
liability is found. According to Fordice, "the State may not leave
in place policies rooted in its prior officially-segregated system
that serve to maintain the racial identifiability of its
universities if those policies can practicably be eliminated
without eroding sound educational policies." Id. at 2743 (emphasis
added). Fordice also directs that "[i]f policies traceable to the
de jure system are still in force and have discriminatory effects,
those policies . . . must be reformed to the extent practicable and
consistent with sound educational practices." Id. at 2736
(emphasis added).
We interpret these directives as recognizing the need to
7
consider the practicability and soundness of educational practices
in determining remedies as well as in making an initial
determination of liability. We do not read Fordice as prohibiting
a bifurcated determination of liability and remedy, although some
matters may be pertinent to both aspects of the trial.
We agree with the State that the 1988 liability order was
based on the undisputed fact of the persistent racial
identifiability of Louisiana's public colleges and universities,
despite the efforts under the consent decree. 692 F. Supp. at 644-
46. The reinstatement of the 1988 liability order in 1992,
however, was based on more than the undisputed facts that were
before the court in 1988 when it first found liability. In 1992,
the district court also considered the record created in the
remedial hearings before the special master in 1989 and the
remedial proceedings before the district court following the
special master's report.
The district court found, "based on the entire record
[]including the most recent submissions," 1) that the State
"continues to act through its policies and practices in a manner
that promotes segregation . . .; 2) those policies and practices
are traceable to Louisiana's long history and endorsement of
segregation; and 3) Louisiana's policies and practices are without
sound educational justification and can be practically eliminated."
1992 order at 17 (footnotes omitted). This holding demonstrates
that in its 1992 order the court reinstated the 1988 liability
summary judgment based on more than the racial composition of the
8
schools. The court considered the requirements of Fordice in
determining liability in 1992.
B. Specific Analysis Required
The State also challenges the summary judgment liability
ruling on the ground that the court's findings3 are too generalized
to satisfy Fordice, because they do not specifically identify state
policies and practices that extended the effects of past
discrimination. The district court recited these general findings
only after adopting the findings made in the earlier proceedings.
1992 order at 17 (adopting by reference the court's "findings of
fact as set forth in its prior opinions and orders and reasons");
see also id. at 2 (parties overlooked court's "findings relative to
the issue of liability"); id. at 12-14 (refusing to regard the
court's earlier findings as outdated). The court stated, "[W]hen
the record in this case is viewed as a whole, the analytic
framework and requisite factual inquiries now required as
articulated in Fordice were made by this Court long before it had
the benefit of the Supreme Court's guidance." Id. at 17.4
3
Federal Rule 52 does not require a court to make findings on a
Rule 56 motion, because "findings" imply decisions on disputed
facts. See Fed. R. Civ. P. 52(a). On a summary judgment motion a
court may, however, set forth as "findings" the facts which it
considers undisputed on which its decision turns, as Judge Schwartz
has done in this case. Such a practice is "greatly helpful to the
appellate court in making clear the basis for the trial court's
decision." United States for the Use and Benefit of Indus.
Instrument Corp. v. Paul Hardeman, Inc., 320 F.2d 115, 116 (5th
Cir. 1963).
4
The court also said its "considered decision with respect to
remedy necessarily involved inquiry into such matters as
educational soundness of current state policies and the
practicability of dispensing with them; the very same issues
9
Assessing the 1992 order in the framework of the adopted
earlier opinions, we perceive that the district court indeed
considered individual policies and practices with sufficient
specificity to satisfy Fordice, namely, Louisiana's open admissions
policy, and program duplication in proximate institutions.5 The
court also considered the four-board governance of Louisiana's
institutions of higher education.
In its 1989 remedial order the court found that "the racial
identifiability of Louisiana's state universities is especially
evident in the coexistence of predominantly black institutions
(PBIs) and predominantly white institutions (PWIs) in close
geographic proximity in four areas of the state." 718 F. Supp. at
504. The court found that program duplication at proximate
institutions has a "stultifying effect on desegregation," and
"permits schools to cater to students of one race, thereby
hindering desegregation goals." Id. at 513. In 1992 the court
found that Louisiana has continued its dual system, "perpetuated by
duplicative programs, multiple boards, coexistence of PBIs and PWIs
with similar programs existing in close proximity to each other."
1992 order at 13. These findings sufficiently identify program
duplication in proximate institutions as a policy that fosters
segregation today.
considered in Fordice." 1992 order at 14-15.
5
By "proximate institutions" we mean the four pairs of Louisiana
institutions that are nearby each other, one of which is a
predominantly black institution (or PBI), and one of which is a
predominantly white institution (or PWI), namely, UNO and SUNO,
LSU-BR and SU-BR, LSU-S and SUSBO, Louisiana Tech and Grambling.
10
We also find Fordice's "traceability" requirement implicit in
the district court's analysis. The Supreme Court has concluded
that program duplication between a historically white college and
a historically black college in Mississippi was part of that
state's prior dual system: "the whole notice of 'separate but
equal' required duplicative programs in two sets of schools--and
. . . the present unnecessary duplication is a continuation of that
practice." Fordice, 112 S. Ct. at 2741. When the proximate PBIs
and PWIs in Louisiana were historically segregated by law, program
duplication was intentional--to insure that the two sets of schools
were "separate but equal."
The court also at least implicitly considered whether program
duplication in proximate institutions lacks sound educational
justification, in observing that program duplication is excessive,
unnecessary, costly, and inefficient. 718 F. Supp. at 508, 513
Finally, the court concluded that program duplication could be
practicably eliminated, through elimination of the multi-board
structure that would enable program transfers and program
elimination, and through tiering or classifying institutions by
selective admissions standards and revised mission statements. 718
F. Supp. at 509-13.
That unnecessary program duplication in proximate PBIs and
PWIs was considered by the district court to be an unlawful policy
or practice is readily apparent from its findings. Accordingly,
with respect to this practice, we reject the challenge that the
court rendered its liability judgment on findings that were too
11
generalized. The district court indeed analyzed with sufficient
specificity under Fordice the State's continuing program
duplication in proximate PBIs and PWIs as an unlawful practice.
The district court also criticized both the four-board
governance and the open admissions policies of Louisiana's
institutions of higher education as policies or practices which
violate the Fordice standard.6 Under Louisiana's governance
system, a Board of Regents has overall authority, while three
governing boards manage specific colleges and universities. The
remedial order disbands the four boards and orders a single board.
The United States has not challenged the four-board governing
system as unlawful, but the court nevertheless found that the
governance system violates the federal constitution. 718 F. Supp.
at 505; see also 1992 order at 15-16 (quoting its earlier findings
regarding the multi-board structure as an example of the
sufficiency of its findings to support a liability decision under
Fordice). The Southern Board maintains that the constitutionality
6
1992 order at 15-17. Much of the criticism of both the multi-
board system and the open admissions policies was that they foster
program duplication and inefficiencies, and that their elimination
would help resolve the problem of program duplication. For
example, the court found that the four-board system "led to
unnecessary . . . program duplication" and that to an extent
program duplication "results from the multi-board structure." Id.
at 15 (quoting 718 F. Supp. at 508). As for the open admissions
policy, the court noted that this policy fails to organize students
by academic ability, resulting in program inefficiencies and the
necessity that each institution provide remedial programs. Id. at
16 n.47 (quoting 718 F. Supp. at 510 n.19).
We express no opinion whether a remedial order addressing an
unlawful policy, if any is found on remand, might include a
restructuring of the multi-board system or the open admissions
policy if these are not independently found to be unlawful
policies.
12
of the four-board system cannot be determined under Fordice,
because the challenged four-board system is not a "policy or
practice" but a state constitutional provision.
We agree. The Louisiana Constitution of 1974 created the
four-board system, La. Const. art. VIII, §§ 5-7; id. art. XIV, §§
1-5 (transitional provisions); and laws have been enacted to carry
these provisions into effect. E.g., La. Rev. Stat. Ann.
§§ 17:1453-1555, 1831-54, 3121-33, 3215-22, 3351 (West 1982 & Supp.
1993). This court is not convinced that the Fordice analysis is
applicable to determine whether the establishment of the four
boards is unlawful. Fordice addresses the "surviving aspects of
[the State's] prior dual system," Fordice, 112 S. Ct. at 2738; thus
Fordice comes into play when the segregative laws have been
repealed, but policies and practices traceable to the de jure dual
system subsist. The four-board system of governance created by the
State constitution in 1974 is not such a surviving "policy or
practice" within the meaning of Fordice. Its constitutionality is
determined under different principles.
"[T]he invidious quality of a law claimed to be racially
discriminatory must ultimately be traced to a racially
discriminatory purpose." Washington v. Davis, 426 U.S. 229, 240,
96 S. Ct. 2040, 2048 (1976). "Proof of racially discriminatory
intent or purpose is required to show a violation of the Equal
Protection Clause." Village of Arlington Heights v. Metropolitan
Hous. Dev. Corp., 429 U.S. 252, 265, 97 St. Ct. 555, 563 (1977).
This same analysis applies to a provision in a state constitution.
13
Hunter v. Underwood, 471 U.S. 220, 227-28, 105 S. Ct. 1916, 1920
(1985) (applying approach of Arlington Heights to determine whether
state constitutional provision violated the Equal Protection
Clause).
The court found the four-board system unconstitutional without
analyzing the State's constitutional provisions or the laws
effectuating them under traditional equal protection principles,
such as whether a provision has a disproportionate impact that can
be traced to a discriminatory purpose.7 The judgment is therefore
reversed, because the court did not apply the correct legal
standard in holding that the four-board system is unconstitutional.
The court also recognized Louisiana's open admissions policy
as a policy which is "counter-productive . . . in terms of . . .
racial integration." 1992 order at 15-16 (quoting 718 F. Supp. at
510). This finding addresses the Fordice inquiry whether the
7
The court found that the multi-board governing system has
"perpetuated" and "sustain[ed]" a segregated higher education
system. 718 F. Supp. at 505; 1992 order at 16 n.47. It also found
that the organization of the institutions of higher education under
four boards had "little regard for logic or efficiency" (1992 order
at 16 n.47); and that the existence of four boards impairs the
State's ability to enhance its historically black institutions
(both by dissipating scarce resources and by leaving the State
without an organizational structure with the power to make program
decisions statewide or power to give desirable programs to the
historically black institutions) (1992 order at 15 (quoting 718 F.
Supp. at 508)). After considering comparisons with alternative
systems, the court concluded that the multi-board system could be
eliminated in favor of a "single-board solution," and by organizing
the institutions under a "mission assignment framework" instead of
under the framework of the four boards. 1992 order at 15 (quoting
718 F. Supp at 508), 16 & n.47. This analysis approaches that of
Fordice, and the findings are persuasive, but the court did not
analyze the question whether the four-board system is traceable to
de jure segregation in Louisiana.
14
state's open admissions policy fosters segregation. As for
educational justification, the court noted that the open admissions
policy fails to meet the educational objective of producing
graduates, and that the policy is inefficient in failing to
organize students by academic ability. Id. The court found
tiering the institutions by selective admission standards and
classifying them by revised mission statements to be feasible
alternatives to open admissions at every institution. More
specific consideration of the practicability of eliminating the
policy is not required under Fordice.
The open admissions policy was instituted after Louisiana's de
jure segregation ended, and the court failed to address the
policy's traceability to the state's prior de jure system. Under
Fordice, a policy is unconstitutional only if "traceable to its
prior [de jure] system." Fordice, 112 S. Ct. at 2737. The
question whether Louisiana's open admissions policy meets the
Fordice traceability requirement must be resolved (if challenged)
on remand. "[I]f challenged policies are not rooted in the prior
dual system, the question becomes whether the fact of racial
separation establishes a new violation of the Fourteenth Amendment
under traditional principles." Fordice, 112 S. Ct. at 2737 n.6.
In sum, we find that the district court adequately applied
Fordice to the State's practice of continuing program duplication
in proximate institutions and to the State's open admissions
policy, except with respect to the traceability of the open
admissions policy. The constitutionality of the four-board
15
governance system was not determined under the appropriate legal
principles.
C. Disputed Facts
The State also challenges the summary judgment findings on the
ground that they are based on disputed facts. The State and the
Southern Board urge that reinstatement of summary judgment on
liability was inappropriate because some Fordice issues remain
genuinely disputed. The district court relied on the special
master's determinations of factual issues after the remedial
hearings and reinstated the summary judgment based in part on those
findings without holding another evidentiary hearing. According to
the United States, however, summary judgment on these findings is
proper because the findings are based on undisputed evidence,
largely the State's own evidence. Yet the State Defendants insist
that the court did not rely on undisputed facts, because the
special master's findings were based on controverted evidence.
Summary judgment is appropriate only if the record discloses
"that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). Evidence adduced at a hearing may support
a summary judgment when the testimony is uncontradicted and the
factual basis for judgment admits no genuine controversy about
material matters. Peyote Way Church of God, Inc. v. Smith, 742
F.2d 193, 196 (5th Cir. 1984). We must review the facts drawing
all inferences most favorably to the party opposing the motion.
Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.
16
1986).
The United States Government's expert, Dr. Clifton Conrad,
found unnecessarily duplicative programs at proximate PBIs and PWIs
and concluded that the State is maintaining a racially dual system
of higher education. The Board of Supervisors' expert, Dr. Donald
Smith, criticized as inaccurate Dr. Conrad's definition of
"duplication"--as programs in two or more nearby institutions in
the same program category or subprogram category of the HEGIS
data.8 Dr. Smith notes that the HEGIS categories provide very
little information about the content of a program. See also Dep.
of Roy E. McTarnaghan of Apr. 21, 1981, filed Sep. 4, 1981, at 117
("[F]requently courses that . . . are titled quite differently are
much more the same than those that are titled the same."). In Dr.
Robert Berdahl's opinion, whether a program offered at one
institution in fact duplicates a program offered at another
institution cannot be determined "without doing a detailed onsight
inspection the way accrediting teams do. But just reading from the
college catalog or reading a HEGIS number . . . seems a terribly
simplistic way to say these are duplicate programs."
Dr. Smith also criticizes Dr. Conrad's definition of
"unnecessary"--as carrying a program title outside the list Dr.
Conrad defines as "core." Cf. Conrad's Louisiana Curriculum
Analysis. In Dr. Smith's opinion, Dr. Conrad's definition of an
8
The acronym stands for Higher Education General Information
Survey. This was a compilation by the Department of Education of
statistics and information supplied by the institutions of higher
education to the federal government.
17
"unnecessary" program would not agree with a college's own list of
which of its offerings were not "essential." Similarly, Dr.
Berdahl believes that Dr. Conrad "takes a grossly over-simplified
approach to defining unnecessary program duplication," partly
because Dr. Conrad does not consider student need in defining
necessary.9 In Dr. Smith's opinion, a finding of "unnecessary
duplication" could be made only by examining a set of offerings in
a particular setting, considering the educational mission of an
institution.
This evidence leaves room for different inferences: we find
that a question of fact remains whether unnecessary program
duplication exists in Louisiana's colleges and universities.
We also detect fact issues regarding the practicability of
eliminating program duplication. Dr. Smith notes the reluctance of
faculty to accept transfer or of faculty at a transferee university
to receive transferring faculty happily. He also asserts that a
program cannot be moved without materially changing its substance,
9
Dr. Berdahl explained,
To merely take the idea of every institution should offer a
general education core of subjects, but that anything they
offer beyond that at the Bachelor's level and then all masters
and then all doctoral duplication, is by definition
unnecessary, seems to me to play fast and loose with the word
unnecessary. . . . [Conrad says] that he did not at all
consider student need, which is universally . . . considered
a vital element in whether or not a program duplication is
necessary or unnecessary.
Dr. Berdahl would define "unnecessary" program duplication
beginning with a composite profile of what a "normal" four year
college offers, which "would go far beyond the minimum core of
general education." To define the term unnecessary he would
consider not only this composite profile but also student need,
quality, and state's ability to pay.
18
in part because of the interactions between the courses in a
program with the content of other courses offered at the same
school.
Dr. Smith believes that program transfer would damage the
quality of the programs and of the university.10 The State adduced
evidence that program transfers at two Georgia colleges resulted in
a drop in enrollment at both schools and failed to achieve the
expected transfer of students from one to the other.11 Dr. Cameron
Fincher testified that in Georgia, "what they thought to be the
program included more than what was transferred." Fincher Dep. at
79. Besides courses in the major field, other courses have to be
taken. Id. at 79-80. He concluded that after reciprocal program
transfers from two institutions, "the quality of both programs has
been somewhat shaken because of the transfer." Id. at 81.
10
This factual dispute was further highlighted by the testimony
of Dr. Berdahl. Berdahl believes that in implementing program
transfers,
we are doing no favor to either the students who might
get hurt in the process of massive social engineering or
to the institutions that we are trying to pull programs
out of an organic context and graft them into a different
situation. . . . Program clusters, you know, programs
are related to each other.
11
See Dep. of Dr. Cameron Fincher of Jun. 4, 1981, filed Sep. 4,
1989, at 61-63. Individual choice of students defeated the plan to
desegregate: students selected "surrogate majors" at the school of
their choice rather than transferring to the school with the first-
choice major. Id. at 76-77. For example, athletes who wanted a
major in physical education, a program removed to a different
college, simply found a major in a related field such as
"recreation and/or parks administration" at their home institution
rather than changing their selection of college. Id. Dr.
McTarnaghan observed a similar reaction by students to terminating
or transferring duplicative programs in Florida: students would
remain loyal to their institution and change majors. McTarnaghan
Dep. at 68-69, 218-19, 225.
19
Inasmuch as this testimony defines a dispute about the
practicability of program transfer, it seems at first to raise a
remedial rather than a liability issue. (Program transfer was one
of several suggested remedies for unnecessary program duplication,
along with merger, cooperative programs, and program termination
accompanied by establishing new programs.) But we think this
testimony also bears on the liability determination of the
practicability of eliminating unnecessary program duplication in
proximate institutions. To ascertain the feasibility of
eliminating or remediating a policy, one can scarcely ignore the
feasibility of alternative or remedial measures. The conflict in
testimony about program transfers thus reveals a disputed issue
regarding the practicability of eliminating duplicate programs.
As for the educational justification for maintaining duplicate
programs at proximate institutions, the district court found that
program duplication was excessive, costly, and inefficient. The
State has not specifically pointed out evidence which raises a
question of fact regarding the educational soundness of maintaining
duplicate programs at proximate PBIs and PWIs. Instead the State
argues that the district court acknowledged a disputed issue
regarding the educational justification for the continued existence
of the proximate institutions in the following remark: "Among the
problems [of merging proximate institutions] are merging student
bodies of highly disparate academic backgrounds, potential loss of
qualified faculty and administrators who were attracted to a school
because of its academic characteristics and goals, and undermining
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black institutions such as Grambling and Southern with substantial
alumni following." 718 F. Supp. at 507 (rejecting merger as a
possible remedy).
Does this observation by the district court imply a disputed
question whether some educational justification for continuing
duplicate programs in proximate institutions may exist? We think
so, though our decision is made more difficult by the State's
failure to point out the evidence which demonstrates a disputed
issue. Implicit in the court's remark is the suggestion that
continuing duplicate programs at proximate institutions might
advance the educational goals of classifying students by their
level of preparedness and of retaining qualified faculty and
administrators at the schools which originally attracted them. A
factfinder might infer that the advancement of these educational
goals provides sound educational justification for continuing
duplicate programs in side-by-side institutions. Though we
consider the issue to have been inadequately addressed by the
parties, we discern an issue of fact regarding the soundness of
educational justification for continuing duplicate programs.
Because of the disputed fact questions whether unnecessary
program duplication in proximate institutions violated Fordice, the
court improvidently rendered summary judgment on that basis.
Also, as noted previously, the open admissions policy was
instituted after Louisiana's de jure segregation ended. We think
this fact inherently raises a genuine issue for trial because it
permits an inference that the open admissions policy is not "rooted
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in" the State's prior de jure segregated system. The question
whether the open admissions policy meets the Fordice traceability
requirement must be resolved (if challenged) on remand.
We also find a fact issue whether an open admissions policy
fosters segregation. The district judge and the special master
reached different conclusions about whether changing the open
admissions policy to a tiered system with graduated admission
requirements would affect desegregation efforts. The special
master found, "[t]here is no obvious and necessary connection
between organization and desegregation. . . . Thus how state
universities are organized can be viewed as an educational matter
not rising to constitutional levels." The district court
concluded, however, that open admissions is "counter-productive .
. . in terms of . . . integration." 1992 order at 15-16. Though
the burden of pointing out issues of fact generally rests with the
non-moving party and the State has suggested no conflicting
evidence on the point, we cannot help but find a fact issue because
of the special master's and trial court's differing "findings." No
party has suggested any issue of fact regarding educational
justification for or the practicability of eliminating the open
admissions policy, and we discern none.
We greatly respect the district court's diligence in
attempting to resolve this protracted litigation expeditiously. We
also commend the trial judge for his obvious familiarity with the
massive record in this case and his circumspection in attempting to
frame remedial measures. In such an old case, where the state's
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colleges and universities remain starkly racially identifiable, we
remand for continued litigation with great reluctance. But in
reviewing the reinstatement of summary judgment, we have
ascertained disputed material facts. To the extent that genuine
issues of fact remain on the liability issues noted above, the
summary judgment on liability must be reversed.
V. DUE PROCESS
The Southern Board and the State also argue that using
evidence from the pre-Fordice remedial proceedings to determine
liability under Fordice denied the State defendants due process.
The gist of this complaint is that the State Defendants had no
reasonable opportunity to contest liability under the Fordice
standards. Because of our remand today the State defendants will
have the opportunity to develop the record on the disputed Fordice
issues and the due process violation, if any occurred, will be
cured.
VI. REMEDIAL ISSUES
Because of the existence of factual disputes on liability, the
remedial order is vacated and we do not reach the State Defendants'
final assigned errors relating to remedy, with the single exception
of one which has been previously decided. The Southern Board of
Supervisors argues that a single district judge lacks authority to
enjoin the enforcement of the state constitutional provision
setting forth the four-board governing structure of Louisiana
higher education, citing 28 U.S.C. § 2281 (repealed 1976). The
statute provides that an injunction restraining the enforcement of
23
a state statute on a ground of unconstitutionality should not be
granted unless the application has been . . . determined by a
three-judge district court."
Though originally a three-judge district court ordered the
single-board remedy in the 1989 remedial order, 718 F. Supp. at
515-16, the later modified remedial orders embracing a single-board
system were single-judge matters. After the three-judge panel's
remedial order, the State and the Southern Board filed direct
appeals in the Supreme Court. On the United States Government's
motion to dismiss on the ground that the three-judge court was not
required, the Supreme Court dismissed the appeals for want of
jurisdiction. 110 S. Ct. 708 (1990). This Court stated that the
Supreme Court's dismissals were predicated on the implicit
conclusion "that the case in the district court was not properly a
three-judge district court case" under former § 2281. We agree
with the interpretation of the earlier appellate panel that
considered the matter.
CONCLUSION
We reverse the summary adjudication of liability, vacate the
remedial order, and remand for a determination of liability, and
remedy if necessary, after resolution of any remaining factual
disputes.
Remedial order VACATED; summary judgment on liability
REVERSED; REMANDED.
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United States v. State of La.
Court: Court of Appeals for the Fifth Circuit
Date filed: 1993-12-10
Citations: 9 F.3d 1159
Copy CitationsCombined Opinion