[Federal Register Volume 59, Number 20 (Monday, January 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2042]


[[Page Unknown]]

[Federal Register: January 31, 1994]


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DEPARTMENT OF EDUCATION
 

Notice of Application of Supreme Court Decision

SUMMARY: In United States v. Fordice, ____ U.S. ____, 112 S.Ct. 2727 
(1992), the Supreme Court held that States that operated de jure 
segregated higher education systems have an affirmative duty under the 
Equal Protection Clause of the Fourteenth Amendment to the Constitution 
and Title VI of the Civil Rights Act of 1964 to dismantle those systems 
and their vestiges. This notice is published in response to a number of 
questions the Department has received concerning the effect of this 
decision.

EFFECTIVE DATE: January 28, 1994.

FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 5036 Switzer Building, 
Washington, DC 20202-1174. Telephone: (202) 205-8635. Individuals who 
use a telecommunications device for the deaf (TDD) may call the TDD 
number at (202) 205-9683 or 1-800-421-3481.

SUPPLEMENTARY INFORMATION: Title VI of the Civil Rights Act of 1964 
(Title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the 
basis of race, color, or national origin in any program or activity 
receiving Federal financial assistance. The Department of Education 
(Department) has promulgated regulations in 34 CFR part 100 to 
effectuate the provisions of title VI with regard to programs and 
activities receiving funding from the Department. Title VI also guides 
the Department's enforcement policies regarding State higher education 
systems that were previously determined to be segregated pursuant to 
State law. This notice outlines the procedures and analysis that the 
Office for Civil Rights (OCR) of the Department of Education will 
follow when investigating States with a history of de jure segregated 
systems of higher education.
    This notice is published in response to a number of questions the 
Department has received concerning the effect of the Supreme Court's 
decision in United States v. Fordice, ____ U.S. ____, 112 S.Ct. 2727 
(1992), on the Department's enforcement policies under Title VI 
regarding State higher education systems that were segregated pursuant 
to State law.
    In Fordice, the Supreme Court held that States that operated de 
jure segregated higher education systems have an affirmative duty under 
the Equal Protection Clause of the Fourteenth Amendment to the 
Constitution and Title VI to dismantle those systems and their 
vestiges. The Court, while acknowledging the differences between public 
higher education systems and elementary or secondary school systems, 
based this holding on the precedent established in its 1954 decision in 
Brown v. Board of Education of Topeka and its progeny in elementary and 
secondary school desegregation cases. 112 S.Ct. at 2736.
    The Supreme Court also held that before a determination can be made 
that a State has discharged its affirmative duty to eliminate the 
vestiges of its de jure system, an examination must be made of a ``wide 
range of factors to determine whether [a] State has perpetuated its 
formerly de jure segregation in any facet of its institutional 
system.'' 112 S.Ct. at 2735. This holding is consistent with the 
Department's policy requiring that the vestiges of de jure segregation 
be eliminated system-wide in State higher education systems, which is 
reflected in the Department's published ``Revised Criteria Specifying 
the Ingredients of Acceptable Plans to Desegregate State Systems of 
Public Higher Education,'' published in the Federal Register on 
February 12, 1978 (43 FR 6658) (``Revised Criteria''). The ``Revised 
Criteria'' specify a broad range of factors, which include those 
addressed in Fordice, that must be included in a statewide higher 
education desegregation plan to be acceptable under Title VI.
    The Supreme Court made clear in Fordice that (1) a State will not 
have complied with its affirmative duty to dismantle the vestiges of 
segregation if it merely adopts race-neutral policies and (2) ``[i]f a 
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 justifications and can be practicably eliminated, the State 
has not satisfied its burden of proving that it has dismantled its 
prior system.'' 112 S.Ct. 2735, 2737. The Supreme Court emphasized that 
the burden of proof falls on each State to establish that it has 
dismantled its prior de jure segregated system. 112 S.Ct. at 2741.
    In light of the Fordice decision, the Department reaffirms that all 
States\1\ with a history of de jure segregated systems of higher 
education have an affirmative duty to ensure that no vestiges of the de 
jure system are having a discriminatory effect on the basis of race. If 
OCR receives information indicating that a State has not met this 
affirmative duty, OCR will take appropriate action.
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    \1\Included are the eight States which, in the late 1980's 
before the Supreme Court rendered its decision in Fordice, OCR found 
in compliance with Title VI. The States OCR found to have complied 
with Title VI were Arkansas, Delaware, Georgia, North Carolina, 
Missouri, Oklahoma, South Carolina, and West Virginia. OCR's 
findings were based on its investigations that showed that these 
States had implemented their OCR-approved desegregation plans, which 
were developed pursuant to the ``Revised Criteria.''
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    OCR will apply the standard set out in Fordice, requiring the 
elimination of the vestiges of prior de jure segregation, to all 
pending Title VI evaluations of statewide higher education systems with 
OCR-accepted desegregation plans that have expired. The States with 
expired plans are Florida, Kentucky, Maryland, Pennsylvania, Texas, and 
Virginia. OCR will examine a wide range of factors to ensure that the 
vestiges of these States' de jure systems have been eliminated. The 
comprehensive array of factors that OCR will consider includes those 
addressed in Fordice and those reflected in the ingredients for 
acceptable desegregation plans specified in the Department's ``Revised 
Criteria.'' Accordingly, OCR will ensure that these States have 
implemented their OCR-approved desegregation plans and have eliminated 
the vestiges of their de jure segregated systems.
    Finally, the Department reaffirms its position reflected in the 
``Revised Criteria,'' which is consistent with Fordice, that States may 
not place unfair burdens upon black students and faculty in the 
desegregation process. Moreover, the Department's ``Revised Criteria'' 
recognize that State systems of higher education may be required, in 
order to overcome the effects of past discrimination, to strengthen and 
enhance traditionally or historically black institutions. The 
Department will strictly scrutinize State proposals to close or merge 
traditionally or historically black institutions, and any other actions 
that might impose undue burdens on black students, faculty, or 
administrators or diminish the unique roles of those institutions.

    Dated: January 26, 1994.
Norma V. Cantu,
Assistant Secretary for Civil Rights.
[FR Doc. 94-2042 Filed 1-28-94; 8:45 am]
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