[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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