United States v. State of La.

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In the civil rights era Louisiana repealed its school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

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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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