Full opinion text
TABLE OF CONTENTS STATEMENT OF THE CASE ................................................ 1427 CONTENTIONS OF THE PARTIES .......................................... 1428 A. DEFENDANTS ....................................................... 1428 B. UNITED STATES/PRIVATE PLAINTIFFS............................. 1428 FINDINGS OF FACT ADMISSIONS................................................................ 1480 A. CONTENTIONS....................................................... 1430 B. OVERVIEW........................................................... 1430 C. POLICIES AND/OR PRACTICES GOVERNING UNDERGRADUATE ADMISSIONS STANDARDS......................................... 1431 1. ACT CUTOFFS.................................................. 1431 2. ACT CUTOFFS AND ALUMNI CONNECTION AS A BASIS FOR' THE AWARD OF SCHOLARSHIPS............................ 1433 3. EXCEPTIONS................................................... 1434 CONCLUSION: UNDERGRADUATE ADMISSIONS ........................... 1434 GRADUATE ADMISSIONS STANDARDS...................................... 1435 A. OVERVIEW........................................................... 1435 B. DISPARATE IMPACT................................................. 1436 CONCLUSION: GRADUATE SCHOOL ADMISSIONS.......................... 1436 MISSIONS/ACADEMIC PROGRAMS .......................................... 1436 A. CONTENTIONS....................................................... 1436 B. OVERVIEW........................................................... 1437 C. UNDERDEVELOPED NON-UNIQUE INSTITUTIONS.................. 1437 1. BACKGROUND.................................................. 1437 (a) MISSION DESIGNATIONS................................. 1438 (b) ALLOCATION OF PROGRAMS............................. 1439 (c) ALCORN STATE UNIVERSITY (ASU)...................... 1439 (d) JACKSON STATE UNIVERSITY (JSU)..................... 1440 (e) MISSISSIPPI VALLEY STATE UNIVERSITY (MVSU)....... 1440 2. ACCREDITATION............................................... 1441 PROGRAM DUPLICATION................................................... 1441 A. CONTENTIONS....................................................... 1441 B. OVERVIEW........................................................... 1441 C. UNNECESSARY DUPLICATION...................................... 1441 1. BACKGROUND.................................................. 1441 2. HWIs VERSUS HBIs (Percentage of Duplication) .................. 1442 3. UNIQUENESS................................................... 1442 (a) JSU versus HWIs (Unnecessary Duplication).................. 1442 (b) ASU versus HWIs (Unnecessary Duplication).................. 1442 (c) MVSU versus HWIs (Unnecessary Duplication)................ 1443 (d) HWIs versus HBIs (Percentage Of Unnecessary Duplication)____ 1443 D. PROGRAM INITIATION AND ELIMINATION......................... 1443 E. OFF-CAMPUS OFFERINGS/DESTRUCTIVE COMPETITION........... 1444 CONCLUSION: PROGRAM DUPLICATION; ACCREDITATION; MISSIONS.... 1444 A. DUPLICATION....................................................... 1444 B. ACCREDITATION .................................................... 1445 C. MISSIONS............................................................ 1445 NUMBER OF UNIVERSITIES ............................................... 1445 A. CONTENTIONS....................................................... 1445 B. OVERVIEW........................................................... 1446 FUNDING POLICIES AND PRACTICES ..................................... 1446 A. CONTENTIONS....................................................... 1446 B. PREVIOUS FINDINGS: FUNDING.................................... 1446 C. FUNDING FORMULA ................................................ 1447 1. INSTRUCTION.................................................. 1447 2. RESEARCH..................................................... 1448 3. PUBLIC SERVICE .............................................. 1448 4. ACADEMIC SUPPORT........................................... 1448 5. REMAINING FORMULA COMPONENTS......................... 1448 D. FORMULA IMPACT .................................................. 1449 E. OUTSIDE THE FORMULA FUNDING ................................ 1451 1. LINE ITEM FUNDING.......................................... 1451 2. ENDOWMENTS................................................. 1451 F. EQUITY.............■................................................. 1451 CONCLUSION: FUNDING................................................... 1452 FACILITIES................................................................. 1453 A. CONTENTIONS....................................................... 1453 B. OVERVIEW........................................................... 1453 C. BACKGROUND....................................................... 1453 1. FACILITIES/PROJECT FUNDING............................... 1453 2. PREVIOUS FINDINGS — CAPITAL IMPROVEMENTS FUNDING........................................................... 1454 3. PREVIOUS FINDINGS — REPAIR AND RENOVATION FUNDING........................................................... 1454 4. ALLOCATION OF FACILITIES RESOURCES TODAY............ 1454 D. QUALITY............................................................. 1456 1. PREVIOUS FINDINGS ON “INSTITUTIONAL CHARACTER”.... 1456 2. ADDITIONAL FINDINGS ON “INSTITUTIONAL CHARACTER” ......................................................... 1456 E. LIBRARIES .......................................................... 1456 F. EQUIPMENT......................................................... 1457 G. LAND................................................................ 1457 H. FOOTBALL STADIUM................................................ 1457 I. FACILITIES AND STUDENT CHOICE................................ 1457 CONCLUSION: FACILITIES................................................. 1457 EMPLOYMENT.............................................................. 1459 A. CONTENTIONS....................................................... 1459 B. OVERVIEW........................................................... 1459 C. RACIAL IDENTIFIABILITY.......................................... 1459 D. FACULTY SALARIES................................................. 1459 E. RANK AND TENURE ................................................ 1460 F. RECRUITMENT...................................................... 1460 1. PREVIOUS FINDINGS — RECRUITMENT AND HIRING.......... 1460 2. ADDITIONAL FINDINGS — RECRUITMENT AND HIRING....... 1460 3. QUALIFIED POOL.............................................. 1461 4. DEFENDANTS’ EFFORTS IN MINORITY EMPLOYMENT....... 1462 CONCLUSION: EMPLOYMENT.............................................. 1462 LAND GRANT............................................................... 1463 A. CONTENTIONS........................................................ 1463 B. OVERVIEW........................................................... 1463 C. BACKGROUND ....................................................... 1463 1. RESIDENT INSTRUCTION...................................... 1464 2. RESEARCH..................................................... 1465 3. EXTENSION.................................................... 1465 CONCLUSION: LAND GRANT............................................... 1466 CLIMATE ................................................................... 1466 A. CONTENTIONS....................................................... 1466 B. OVERVIEW........................................................... 1466 C. RACIAL CLIMATE IN GENERAL.................................... 1466 1. THE UNIVERSITY OF MISSISSIPPI ............................ 1467 2. MISSISSIPPI STATE UNIVERSITY.............................. 1468 3. THE UNIVERSITY OF SOUTHERN MISSISSIPPI................ 1468 4. DELTA STATE UNIVERSITY.................................... 1469 5. MISSISSIPPI UNIVERSITY FOR WOMEN....................... 1469 D. CONTINUING RACIAL IDENTIFIABILITY ........................... 1469 E. RETENTION ......................................................... 1470 F. STUDENT CHOICE AND THE HWIs................................. 1470 G. STUDENT CHOICE AND THE HBIs.................................. 1470 CONCLUSION: CLIMATE ................................................... 1471 GOVERNANCE/BOARD OF TRUSTEES....................................... 1472 A. CONTENTIONS....................................................... 1472 B. BACKGROUND....................................................... 1472 C. TODAY............................................................... 1473 CONCLUSION: GOVERNANCE .............................................. 1473 FAILURE TO PLAN/ASSESS............................................. 1473 A CONTENTIONS....................................................... 1473 B. OVERVIEW........................................................... 1473 CONCLUSION: FAILURE TO PLAN/ASSESS................................. 1474 ACCESS: COMMUNITY COLLEGES ......................................... 1474 A. OVERVIEW........................................................... 1474 B. BACKGROUND...................................... .1474 CONCLUSION: COMMUNITY COLLEGES...;................................ 1475 ATHLETIC CONFERENCES................................................. 1476 GRADUATE COUNCILS...................................................... 1476 CONCLUSION: INTERACTION OF POLICIES AND PRACTICES FOSTERING SEPARATION OF THE RACES; THE SCOPE OF THE VIOLATION.... 1477 DEFENDANTS’ PROPOSED REMEDIES..................................... 1477 ADMISSIONS................................................................ 1477 A. OVERVIEW........................................................... 1477 B. PROPOSAL........................................................... 1477 1. OVERVIEW...................................:................. 1477 2. SPRING PLACEMENT PROCESS................................ 1478 3. SUMMER PROGRAM............................................ 1478 C. IMPACT PROJECTED FOR NEW ADMISSIONS STANDARDS......... 1479 D. PROPOSED REMEDIES/ADMISSIONS................................. 1479 1. PRIVATE PLAINTIFFS.......................................... 1479 2. UNITED STATES ............................................... 1480 E. CRITIQUE: ADMISSIONS ............................................ 1480 CONCLUSION: UNDERGRADUATE ADMISSIONS ........................... 1481 MISSIONS................................................................... 1483 A OVERVIEW........................................................... 1483 B. PROPOSAL........................................................... 1483 1. JACKSON STATE UNIVERSITY................................. 1483 2. ALCORN STATE UNIVERSITY.................................. 1483 C. PROPOSED REMEDIES: MISSIONS.................................. 1483 1. JSU: Private Plaintiffs............................................ 1483 2. JSU: United States .............................................. 1484 D. CRITIQUE: MISSIONS ................................ 1484 1. JSU............................................................. 1484 2. ASU............................................................. 1484 CONCLUSION: MISSIONS................................................... 1484 A. JSU.................................................................. 1484 B. ASU.................................................................. 1486 PROGRAM DUPLICATION................................................... 1486 NUMBER OF INSTITUTIONS................................................ 1487 A. OVERVIEW........................................................... 1487 B. PROPOSAL: MERGER OF DSU AND MVSU.......................... 1487 1. THE DECISION TO MERGE .................................... 1487 2. CRITIQUE ...................................................... 1487 (a) Historical Precedent......................................... 1487 (b) Fiscal Responsibility......................................... 1487 (c) Size and Character of the Merged Institutions................ 1488 C. PROPOSAL: MERGER OF MUW AND MSU .......................... 1488 1. THE DECISION TO MERGE .................................... 1488 2. CRITIQUE ...................................................... 1489 (a) Background................................................. 1489 (b) Impact on Desegregation.................................... 1489 CONCLUSION: NUMBER OF UNIVERSITIES............................... 1489 CONCLUSIONS OF LAW .................................................... 1493 REMEDIAL DECREE........................................................ 1494 ADMISSIONS................................................................ 1494 MISSIONS................................................................... 1494 APPENDIX....................................................APPENDIX - 1496 PRIVATE PLAINTIFFS......................................APPENDIX - 1496 UNITED STATES............................................APPENDIX - 1498 MEMORANDUM OPINION AND REMEDIAL DECREE BIGGERS, District Judge. Jamdyce and Jamdyce drones on. The ... suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into it; innumerable old people have died out of it. Scores of persons have found themselves made parties in Jarndyee without knowing how or why. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyee should be settled, has grown up, possessed himself of a real horse, and trotted away into another world. Fair wards of court have faded into mothers and grandmothers; a long procession of judges has come in and gone out; thirty to forty counsel have been known to appear at one time; costs have been incurred to the amount of many thousands of pounds; there are not three Jarndyees left upon the face of the earth perhaps, but Jamdyce and Jamdyce still drags its dreary length before the court... , More than a few parallels can be drawn between the cases of Jamdyce and Fordice. Although one is fictional and the other very real, and one involves the settlement of a family estate while the other requires a vast inquiry into the constitutional rights of a class of people as they relate to a system of colleges and universities, similarities do exist. Those parallels, while interesting to compare, are not relevant here, however, and better left for the reader who might so choose to draw for himself from the novel describing Jamdyce, cited above, and the opinions chronicling Fordice, cited below. STATEMENT OF THE CASE This class action suit was instituted on January 28, 1975 against the Governor of Mississippi, the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, the Commissioner of Higher Education and other officials and the five historically white universities in the State of Mississippi. The class was certified by the court as: all black citizens residing in Mississippi whether students, former students, parents or taxpayers who have been, are or will be discriminated against on account of race in ... the universities operated by the said Board of Trustees. After years of settlement negotiations and discovery, a six-week trial took place from April 17 through June 1, 1987. On December 10,1987, this court found that the State’s policies in the field of higher education were race-neutral and ruled in favor of the defendants on all issues. Ayers v. Allain, 674 F.Supp. 1523 (N.D.Miss.1987). The plaintiffs appealed the court’s ruling to the Fifth Circuit Court of Appeals where a divided panel reversed and remanded the cause for remedial proceedings. Ayers v. Allain, 893 F.2d 732 (5th Cir.1990). On rehearing en banc, the Fifth Circuit vacated the panel opinion and reinstated this court’s findings of fact and conclusions of law. Ayers v. Allain, 914 F.2d 676 (5th Cir.1990). On April 15,. 1991, the United States Supreme Court granted certiorari. Ayers v. Mabus, 499 U.S. 958, 111 S.Ct. 1579, 113 L.Ed.2d 644 (1991). On June 26, 1992, the Supreme Court ruled that the State’s adoption of race-neutral policies to govern its public higher education system, the ratio decidendi for this court’s previous decision, did not go far enough in fulfilling the State’s affirmative obligation to disestablish its prior de jure segregated system. Holding that dismantlement of the State’s prior “segregative admission policy” is insufficient to find in favor of the State where “policies traceable to the de jure system are still in force and have discriminatory effects,” United States v. Ford- ice, - U.S. -, -, 112 S.Ct. 2727, 2736, 120 L.Ed.2d 575 (1992), the Supreme Court remanded this cause to this court to “consider the State’s duties in their proper light” in determining whether or not the State has “met its affirmative obligation to dismantle its prior dual system.” Fordice, — U.S. at -, 112 S.Ct. at 2743. “If 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.” Fordice, — U.S. at -, 112 S.Ct. at 2736. In 1987, this court made extensive findings of fact concerning the higher education system of Mississippi. Without attempting to delineate “an exclusive list of unconstitutional remnants of Mississippi’s prior de jure system,” the Supreme Court identified “admission standards, program duplication, institutional mission assignments and continued operation of all eight public universities” as “constitutionally suspect policies ... of the present system.” Fordice, — U.S. at -, 112 S.Ct. at 2738. Accordingly, this court’s task on remand is to “examine, in light of the proper standard, each of the other policies now governing the State’s university system that have been challenged or that are challenged ... in light of the standard” articulated in Fordice. Id. On September 25,1992 this court issued an order setting a status and scheduling conference for October 22, 1992. In response to that order, the defendants unveiled their proposal for modification of the higher education system. After extensive settlement negotiations proved unfruitful, the trial of the case began on May 9, 1994. One hundred and three witnesses whose testimony covered more than 11,000 pages of transcript were heard over the span of ten weeks, and approximately 60,000 pages of exhibits were admitted. On remand, the court has made additional findings of fact and conclusions of law pursuant to Fed. R.Civ.P. 52. CONTENTIONS OF THE PARTIES As a point of departure, the court will initially set out the positions of the parties with regard to this court’s previous undisturbed findings of fact, additional challenged policies on remand and, in general, the scope of these proceedings. A. DEFENDANTS Essentially, it is the defendants’ position that their liability has yet to be established and cannot now be established because its proposed system-wide reorganization has completely dismantled the prior de jure system to the extent educationally sound and practicable. Allegedly, that reorganization, the details of which will be thoroughly explored herein, has ehminated whatever segregative effects past policies and practices observed by the Supreme Court as “constitutionally suspect” might have had. With regard to the additional challenged policies and practices on remand, as well as those that were challenged in 1987, the defendants’ position is essentially that the issues raised by the plaintiff parties are either specifically precluded by this court’s previous undisturbed findings of fact, or alternatively, now foreclosed by the decision in Fordice. B. UNITED STATES/PRIVATE PLAINTIFFS The United States and the private plaintiffs do not share the same analytical approach to the policies and practices of Mississippi’s higher education system that they contend is constitutionally deficient in most if not all aspects. However, their delineation of allegedly unlawful systematic policies and practices is in most material respects alike. With a few notable exceptions, addressed infra primarily their differences are confined to the proper emphasis placed on the evidence adduced over the long history of this action. In the area of agreement, the plaintiff parties’ position may be summed up as follows: that the State of Mississippi is not now in compliance with the United States Constitution; that the State’s proposed reorganization scheme will not eliminate the continuing segregative effects of past discriminatory practices traceable to the de jure era; and that the areas challenged in 1987 and not examined under the correct legal analysis, as well as additional areas challenged on remand, are further examples of policies and practices traceable to the de jure past that have continuing segregative effects and must be now eliminated or reformed to the extent educationally sound and practicable. As identified in the pleadings, both the private plaintiffs and the United States allege that certain “aspects, features, policies and practices of the defendants are remnants of the de jure system, and are examples of racial discrimination carried out by the defendants.” Each plaintiff party separately identifies policies and practices that allegedly violate the law and while many of those identified are similar and in some cases, exactly alike, each of the policies or practices is treated below. The United States’ submission both in the text and in the appendix attached hereto is identified by the characters “US” followed by the number of the alleged remnanVunlawful practice. The private plaintiffs’ submission is identified by the letter/number combination employed in the pretrial order (example “A5.”). Except where specifically noted, when referenced as a group, the historically white universities or institutions will be designated as “HWIs.” The HWIs consist of the University of Mississippi (“UM”); The University of Southern Mississippi (“USM”); The Mississippi University for Woman (“MUW”); The University of Mississippi Medical Center (“UMMC”); Mississippi State University (“MSU”); and Delta State University (“DSU”). Except where specifically noted, when referenced as a group, the historically black universities or institutions will be designated as “HBIs”.' The HBIs consist of Jackson State University (“JSU”); Alcorn State University (“ASU”); and Mississippi Valley State University (MVSU”). Record citations will be abbreviated as follows: Trial on Remand Transcript — [witness] [page]; 1987 Trial Transcript — (1987) [witness] [page]; Trial on Remand Exhibits — [Party]X [no.]; 1987 Trial Exhibits — (1987) [partyJX [no.]. The court will initially treat the alleged remnants and challenged policies and practices that coincide with the areas outlined by the Supreme Court in Fordice. FINDINGS OF FACT In viewing the facts of this case, the court has attempted to be vigilant in viewing them as they affect the constitutional rights of persons, and avoid the easier but erroneous exercise of viewing colleges and universities as the entities whose rights are being litigated here. Since most of the testimony and the vast majority of the documentary evidence have pertained to the eight universities in the higher education system, it has often been perceived by some that this case is about rights of colleges and universities to equal funding, numbers of programs and quality of facilities; but the Fourteenth Amendment provides that “no state shall deny to any person the equal protection of the laws” (emphasis added). The Constitution does not provide educational institutions with constitutional protections. The remnants of de jure segregation have been mandated by the Supreme Court in Fordice to be identified by this court and analyzed as to educational soundness and practicality. The historically racially predominant colleges— both black and white — are remnants so identified herein; however, those institutions are relevant to this inquiry because they affect the constitutional rights of persons, not because institutions themselves possess constitutional protections. In applying the analysis mandated by Fordice to the facts of this case, the court has consistently viewed those facts in the light of how they affect persons and avoided any analysis based on the allocation of constitutional rights to the colleges and universities which, although understandably loved and revered by their respective alumni, are merely institutions created by state statutes. ADMISSIONS A. CONTENTIONS The plaintiffs allege that the State is in violation of the law for failing to eliminate the effects of segregation as they pertain to the following areas: (1) the use of the ACT assessment instrument in determining undergraduate admissions; (2) use of ACT scores in determining entry to programs; (3) using ACT scores for awarding scholarships; and (4) institutional use of exceptions to the regular admissions requirements. The plaintiffs allege that the admissions standards also operate in connection with other factors to direct black students to the HBIs in this state. B. OVERVIEW The court has previously addressed university entrance requirements in the opinion issued after the 1987 trial. At that time, admissions standards for first-time entering freshman required completion of a specific high school core curriculum and achievement of a specified score on the American College Test (hereinafter “ACT”). Exceptions from this requirement were available for students failing to satisfy these standards; however, the numbers of students enrolling under such exceptions were limited by the institution affording the exception. Ayers, 674 F.Supp. at 1530-36, 1554-57. In 1987, admissions standards differed among universities according to the historic racial identifiability of the institutions. In general, the HWIs required an ACT score of 15 for regular admission; exceptions were limited to the greater of 5% of the preceding year’s freshman class or 50 students for students attaining an ACT score of at least 9. The HBIs required an ACT score of only 13 for regular admission. ASU and MVSU allowed exceptions up to 10% of the university’s total Fall enrollment for the previous year, while JSU allowed exceptions up to 8% of the previous year’s freshman class for students attaining an ACT score of at least 9. No university in the system allowed admission, conditional or otherwise, for students attaining below a 9 on the ACT. Ayers, 674 F.Supp. at 1534-35, 1556. In 1987 this court observed that the ACT was a. “highly relevant status report on student school achievement”; that “the ACT, as a standardized instrument, enables educators to assess uniformly the level of academic preparation of students graduating from high schools across the state”; that the ACT “provides information necessary for student placement and serves as a valid predictor of academic performance during the first year of college” and that both nationally as well as in Mississippi, African-American students “scored somewhat lower” on the ACT. Ayers, 674 F.Supp. at 1534, 1556. ' The old ACT was administered for the last time in 1989. In the Fall of 1989, the ACT organization substituted the Enhanced ACT Assessment (hereinafter “EACT”) for the ACT Assessment used in 1987. The ACT used in 1987 consisted of a battery of tests in the following] four subject areas: English, mathematics,; “social studies reading,” and “natural sciences reading.” The battery of tests under Ijhe EACT consists of English, mathematics,,reading and science reasoning tests. Concordance tables were published by ACT for usq by institutions in converting scores earned on the old ACT to the appropriate EACT score. As explained by the publishers, “[ejach concordant value for the Enhanced ACT Assessment has — as nearly as possible — the same relative standing (percentile rank) Assessment.” mated score in the national sample as does the corresponding score on the current ACT ACT also provides an “estiinterval” which reflects “the probable interval within which a student’s score would have fallen if he or she had taken the Enhanced ACT Assessment instead of the current ACT Assessment.” In October, 1989 the Board of Trustees of State Institutions of Higher Learning (the Board) solicited recommendations from the eight universities with regard to new admissions standards based on the Enhanced ACT. Each HWI Recommended use of an EACT score of 18 for regular admission, the concordant value of jwhich under the old ACT score was approxhriately 15. Thus, the new admissions requirements at the HWIs remained substantially the same as those under the previous ACT. The HBIs, rather than recommend use of an EACT score of 17, with a concordant value of 18 on the old ACT, the score previously required by the HBIs for regular admission, recommended adoption of an EACT score of 15 for regular admission, the concordant value of 11 on the old ACT. Thus, in 1989 the HBIs, in effect, lowered their admissions requirements by this recommendation. For students classified as “high risk,” UM, DSU and MSU recommended an EACT score range from 14 to 17, the concordant values of which ranged from 9 to 14 on the old ACT. USM requested a composite EACT minimum score of 16 for this classification of students, and MUW requested a minimum EACT score of 15. For high risk admissions, the HBIs recommended EACT scores ranging from 12 to 14, the concordant values of which ranged from 7 to 10 under the old ACT. Additionally, JSU increased its percentage of allowable high risk admit-tees from 8% to 10%. The Board approved all institutional recommendations. From 1990 to 1994, differential admissions standards persisted in the system, which as detailed above, basically utilized a version of the 1987 standards with various exceptions. C. POLICIES AND/OR PRACTICES GOVERNING UNDERGRADUATE ADMISSIONS STANDARDS 1. ACT CUTOFFS The ACT test is designed to measure and evaluate the general educational development of a student at the particular time the test is taken. The prevailing view in education is that, while as a diagnostic instrument the ACT is a source of useful information, it is inappropriate to use ACT scores as the sole criterion for admission to an institution. Other measurements of a student’s potential, including high school grade point average (hereinafter “GPA”), rank in high school class and teacher evaluations, when used in conjunction with ACT scores are in general more highly correlated with college academic performance than a performance predicted by use of the ACT test score alone. Analysis of enrollment data spanning the years 1988 through 1992 indicates that over 60% of the students enrolled at the HBIs scored below 15 on the ACT compared with approximately 85% of the enrolled students at the HWIs scoring above 15 on the ACT. Of course, the 85% of students referred to in-eludes both black and white students at HWIs. White students continue to score consistently higher on standardized tests in general than black students. This phenomenon is present not only in Mississippi and other de jure states but also in non de jure states throughout the United States. It is also generally recognized that Asians score higher on these tests than Caucasians. It is estimated that approximately 19% of black Mississippians who take the test score 12 or below. Regarding this phenomenon, the court has heard opinion that (1) for black students, it is not clear that ACT test scores accurately predict academic performance; (2) in general, test scores are not accurate predictors of performance for students from disadvantaged backgrounds; and, consequently, (3) the use of ACT cutoff scores has a negative effect upon access and educational opportunity to students from poor socioeconomic backgrounds. Regardless of whether the ACT is a flawed predictor of black student performance, the preponderance of opinion affirms that there is a clear correlation among success with standardized tests, the past degree of educational opportunity experienced by the test taker and preparedness for college work. Finally, the average or mean ACT scores are increasing for both black and white Mississippians. The court has heard extensive testimony regarding the various disparities in public school districts throughout the state and the demographic makeup of those districts. The private plaintiffs contend that the State’s discriminatory treatment of its black citizens pervasive during its prior de jure history has to some degree shaped the socioeconomic plight of those citizens and helped to contribute to the lesser degree of educational attainment of its black citizens. Previous state authorities had recognized this variance and during the de jure period in this state’s history, instituted discriminatory policies accordingly. As of 1994, however, the defendants had undertaken to correct the variance in ACT scores by race through such measures as participation in a mandatory College Preparatory Curriculum or “core.” At least since the 1980’s, establishment of a prescribed “core” curriculum in high schools has become common throughout the country. Uniformly, the core consists of a battery of college preparatory courses designed to better prepare high school students for the college experience, and has been described as providing “the informational basis for doing well in college generally, and for significant academic growth and development.” Not surprisingly, participation in the core is related and correlates to increased ACT scores. In Mississippi, the results of participation in the core are likewise consistent. In 1986, the first-year students completed the core as it now exists, and mean ACT scores increased and significantly so for minority students. While participation in the core has increased over time for both black and white high school students, over 40% of the ACT test takers today still indicate a lack of complete participation in the core. Addressing among other things the recognized disparity in college-going rates as between black and white Mississippians, in 1989 the Board developed a program known as “Project 95.” As described by board members, Project 95 is a formal collaborative effort among the Institutions of Higher Learning (IHL) system, the community college system and the primary/seeondary public school system. Dr. Charles Pickett, Associate Commissioner of Academic Affairs for the Board, a graduate of a historically black high school and a HBI, described Project 95 as a vehicle designed to bridge the gap between high school and college and to make more accessible to minorities higher education without weakening admissions requirements. 2. ACT CUTOFFS AND ALUMNI CONNECTION AS A BASIS FOR THE AWARD OF SCHOLARSHIPS Board policy allows each institution to waive state non-resident fees for out-of-state students who wish to attend college in Mississippi by providing alumni scholarships, provided the applicant has a minimum ACT score of 21 and is the child of a nonresident alumnus. Evidence has been presented which shows a marked disparity in percentage awarded by race in any given year. It is contended that because of the historical exclusion of blacks from the HWIs, and the statistical difference between ACT scores of blacks and whites, these restrictions on financial aid to students from other states discriminate against black student applicants. Additionally, the plaintiffs have pointed to numerous instances of institutional policies of the HWIs regarding use of an ACT cutoff score as the sole criterion for the award of academic scholarship monies. It is contended that.basing scholarship dollars on ACT cutoffs, set beyond the range of what most black students achieve on the test, eliminates this source of aid to black students and is educationally unsound because a student’s overall academic performance is a more reasonable basis for making a decision about scholarship aid. 3. EXCEPTIONS The number of “at risk” exception slots (available for students making below the required minimum ACT score) at the HWIs for the time period 1986-1992 was consistently lower than those available at the HBIs for the same time period. While there is considerable evidence to indicate that the HWIs were disinterested in using the admissions exceptions available to them and, likewise, failed to publish those exceptions to the same extent as the HBIs for the time period 1986-1992, the HWIs consistently used a substantial portion of the available exceptions to their minimum test score requirements. CONCLUSION: UNDERGRADUATE ADMISSIONS The court finds that the admissions standards that existed at the time of trial in 1987, although racially neutral on their face, were discriminatory when viewed under the legal standard established in Fordice and should be altered. Moreover, Dr. Anderson, historian for the United States, amply supplied the factual predicate regarding the traceability of the ACT component of the 1987 standards implicit in this court’s initial ruling and, thus, additional findings of fact regarding the traceability of those admissions standards are neither necessary nor useful. Likewise, the segregative effect of such differential admissions policies cannot be denied in view of their operation in a system of higher education where racially identifiable institutions provide essentially many of the same academic course offerings in identical or overlapping service areas. The defendants’ current proposal seeks to eliminate this vestige of the de jure era, and it is clear that under the Fordice analysis the admissions standards have served to channel black students to the HBIs. It should be noted that the lower ACT requirements at the HBIs were put into effect by the Board only after recommendations by the HBI presidents, but it is the Board’s responsibility to manage the higher education system in accordance with constitutional principles. The effect of the recommendations to the Board to key the entrance requirements at the HBIs lower than at the HWIs resulted in the “channeling effect” described in Fordice, — U.S. at -, 112 S.Ct. at 2739, and must now be remedied. As noted earlier, the performance of Mississippi’s black citizens on the standardized entrance tests is statistically lower than that of whites. While the court agrees with the defendants that it is not their obligation to remedy every societal ill which the plaintiffs can establish has a nexus to the de jure past, it is now clear that their duty does encompass eradication of the ACT cutoff score as a sole criterion for admission to the system when the ACT is used in conjunction with differing admissions standards between the HBIs and HWIs. That is not to say that the use of an ACT cutoff in all circumstances is unlawful however. Rather, its particular use in any circumstance must be examined to consider whether as a component of the policy challenged, the same is traceable to prior de jure segregation. The Board’s policy of allowing alumni scholarships to be based on ACT cutoffs and the use of ACT cutoff scores as the sole criterion for the receipt of academic scholarship monies has not been proven to have linkage with the de jure system, and there is no evidence that these practices currently foster separation of the races such as influencing student choice. Therefore, reformation of these policies cannot be ordered consistent with the law of the case, absent evidence of discriminatory purpose of which the court finds none. The use of ACT scores in awarding scholarships is widespread throughout the United States and generally viewed as educationally sound. The court finds that the plaintiffs have failed to prove the allegation that the HWIs do not use their admissions exceptions “to a substantial degree.” While true that the HWIs have not to the time of trial encouraged exceptions to their admissions requirements, neither use of nor the failure to use exceptions to the regular admissions requirements is traceable to the prior de jure system. The State and other defendants have greatly improved access to the higher education system for minorities. In the age group 18 to 24, black enrollment in public higher education in Mississippi per thousand blacks in the population is higher than the national mean and black enrollment per thousand blacks in many non de jure states. While the experts disagree as to the exact degree of black participation in the higher education system and, thus, the effectiveness of those measures designed to increase black participation, there is no per se policy or practice of minimizing the participation of African-Americans in the system. As Dr. James Wharton pointed out, some states, California being one, have set the entrance requirements for their universities at a level which makes it very difficult for black high school graduates to gain admittance to any university. Conversely, institutions in Louisiana, a state having open admissions, suffer from a very high attrition rate resulting in students owing one, two or three years of college expenses and having little or nothing to show for it. Such students were admitted without having the preparation to do the college work. The question has been posed to the court whether blacks as a group should have the same statistical opportunity to be admitted to college as whites, as determined by "the admissions policies. To gain statistical parity there would have to be different admissions standards based on race. The court rejects that approach. As Dr. Wharton testified, in California Asians do significantly better than Caucasians on the entrance tests. Are the California policies discriminatory against the Caucasians since the Asians are admitted in higher percentages of applicants than the Caucasians? Should admissions policies to universities be set so that racial groups can be admitted in equal percentages of applicants? The court must reject any such proposal as well as open admissions to universities. Remnants outside of the admissions arena that may have a negative effect on black access to the system will be addressed elsewhere. GRADUATE ADMISSIONS STANDARDS Challenged for the first time on remand, it is the contention of the plaintiff parties that the use of standardized cutoff scores for entry into graduate programs at the HWIs is both traceable to the prior de jure system as well as currently producing segregative effects. A. OVERVIEW Mississippi institutions began using the Graduate Record Exam or “GRE” in the 1960s. The GRE is a common diagnostic tool designed to measure a student’s qualifications for graduate study, and in particular a student’s verbal, quantitative and analytical abilities. There have been literally thousands of validity studies on the ability of the GRE to predict performance in graduate school. The results of those tests indicate that GRE general test scores “are slightly to moderately predictive of graduate first-year grade point average.” In other words, GRE subscores have limited power to predict how well individuals will actually do in their first year of graduate school. As a result of these and similar studies, it has been determined that a student’s undergraduate grade point average is consistently a better predictor of academic success in graduate school than GRE scores. B. DISPARATE IMPACT Studies indicate that black examinees score, on average, 129 scale points below white examinees on the verbal section of the GRE. The disparities on the quantitative and analytical segments are 152 and 151 scale points, respectively. Because of the limited predictive power of the GRE, use of an absolute cutoff score for admission to programs is strongly cautioned against by the makers of the test, the use of which will invariably lead to many classification errors in the admissions process. Many persons who are admitted will fail whereas many others excluded would have succeeded. The Educational Testing Service or “ETS” on behalf of the Graduate Record Examinations Board has published guidelines for the proper and appropriate uses of the GRE. Guidelines promulgated by ETS include strictures against using GRE scores as the sole criterion for admission into a program. The guidelines also recommend institutions to conduct validity studies in conjunction with the use of the GRE scores and advise against combining the three measures (verbal, quantitative and analytical) to determine the appropriate entrance requirements and, finally, caution against basing decisions on small score differences. CONCLUSION: GRADUATE SCHOOL ADMISSIONS Graduate School catalogs promulgated by UM, MSU and USM indicate various violations of the GRE guidelines ranging from aggregation of the three GRE subscores to the apparent use of GRE cutoff scores in the admissions process. The defendants have conceded through their witnesses that the catalogs may infer violations of ETS criteria and are misleading but maintain that, in actual practice, certain universities do not practice GRE subscore aggregation or use the GRE test results as cutoff scores for entrance to any particular program. Institutional aggregation of test scores for admission criteria appears to have disparate impact upon blacks. Moreover, like the ACT, the announcement of a minimum cutoff score more likely than not affects student choice to some degree. While the defendants have denied institutional misuse of the GRE and other graduate admissions tests, they have undertaken to reform these policies and to modify their catalogs to reflect the proper employment of the GRE consistent with sound educational practice as reflected by the publisher’s guidelines. Inasmuch as they have undertaken that duty, the court will order that completed within a specified period and the modifications presented to the Monitoring Committee, the creation and function of which will be described hereinafter, for review. MISSIONS/ACADEMIC PROGRAMS A. CONTENTIONS The United States has raised as a remnant “[wjhether the defendants have perpetuated segregation ... by deterring other-race enrollment in the traditionally black public universities through the assignment of institutional missions and scopes.” The United States addresses the defendants’ assignments of institutional missions together with funding, program duplication, land grant programming, facilities, employment, the number of universities and athletic competition as components of what they identify as “Policies and Practices Bearing Upon the Ability of the Historically Black Institutions to Attract Diverse Student Populations.” B. OVERVIEW In 1987 this court found that the differential mission designations were “rationally based on sound educational policies and are not violative of the Equal Protection Clause.” Ayers, 674 F.Supp. at 1561. The standard articulated by the Supreme Court now requires the court to revisit that conclusion in light of the Fordice analysis and apply it to the various components that make up the system of higher education in Mississippi to which mission is closely tied. Previous findings of fact made by the court in 1987 remain relevant to this analysis and to that degree will be specifically reiterated. C. UNDERDEVELOPED NON-UNIQUE INSTITUTIONS The 1987 opinion set forth the historical development of each of the eight Mississippi universities. Ayers, 674 F.Supp. at 1526-28. Since this institutional history was incorporated into the court’s 1987 opinion, it is easily available and will not be included herein; however, some historical information is necessary to put into perspective the rationale underlying the court’s findings and remedies. A brief historical sketch of the development of each HBI to the degree relevant to the allegations of the plaintiff parties regarding the traceability of its underdevelopment is deemed necessary. Prior to that analysis, however, the court will attempt to briefly describe the historical circumstances out of which these institutions developed in an effort to put into context the higher education institutional landscape as it exists today. The historical context is helpful in illuminating facets of the system in an effort to determine whether the same are vestiges of the prior de jure system. 1. BACKGROUND The Mississippi Constitution of 1890 included a clause, known as the interpretation clause, which was designed to disenfranchise black Mississippians. The clause required potential registrants for voting to interpret a provision of the constitution chosen by the local registrars. The testimony of Dr. James Loewen was that the decline in educational opportunity for black Mississippians was directly tied to the interpretation clause. The less education members of the black population of the state possessed, the less their ability to properly interpret the state constitution and accordingly exercise the franchise. A central premise of education of blacks after the establishment of ASU in 1871, was that blacks could only benefit from agricultural or mechanical training, rather than a liberal education that was provided for its white citizenry. Accordingly, after 1890, state appropriations for black education dropped dramatically. The State reduced appropriations for ASU during this period but the institution was nonetheless allowed to exist because of its emphasis on the teaching of agricultural skills rather than on providing a liberal education. In keeping with the design of restricting the educational opportunities of its black citizens, educational facilities for African-Americans — even primary and secondary schools— were scarce in Mississippi up until the 1940s-50s. By 1952-53, although the black secondary school population in the state was larger than the white secondary school population, there were only approximately one-third as many black secondary school teachers as there were white teachers. Also during this time, most black high schools offered only one or two years of high school and approximately 69% of the black teachers were without a college degree. The lack of qualified black school teachers is explained in part by the absence of black normal schools designed to educate and train teachers. The State Normal School at Holly Springs, founded in 1873, was the first and only such institution designated for the training of black teachers in Mississippi but that institution was closed by Governor Vardaman in 1904. From 1904 until 1940, the State of Mississippi had no facilities designated for the training of black teachers. The lack of primary and secondary schools for black Mississippians also had a significant impact on black college-going rates during this time period. In 1940, while 5.5% of the white adults in Mississippi had attained a college degree, only approximately .3% of the adult black population had done so. By 1925, white Mississippians could choose among five public institutions of higher learning. Black Mississippians had only ASU. Undoubtedly, the lack of institutions of higher learning for blacks was also significant in its impact on the black attendance rate in Mississippi during this period. At the time of the Supreme Court’s decision in Brown in 1954, 10% of all college degrees awarded by state universities were earned by blacks, although they comprised an estimated 45% of the population. (a) MISSION DESIGNATIONS In 1965-66, the Board authorized role and scope studies whereby each university was requested to study its respective strengths and weaknesses and to make recommendations as to its development for approximately the next ten years. Additionally, the institutions were requested to submit recommendations for programmatic expansion during the ensuing period consistent with their identified strengths. In 1974, the board staff itself began a study of the role and scope of the eight institutions, the result of which was a document produced in 1977 which assigned the leadership positions in the system of higher education to only USM, UM and MSU. In 1981, the Board assigned missions to the various institutions of higher learning in Mississippi. A university’s “mission” is that which defines the institution relative to all other institutions within the system. The Board designated MSU, UM and USM as “comprehensive” universities, a designation which implied that these institutions did and could offer the greater number and higher level of degree programs than the remaining institutions. Ayers, 674 F.Supp. at 1539. JSU was designated as an “urban” university whose emphasis was “oriented toward service of the urban community” of Jackson, Mississippi. Id. ASU, DSU, MUW and MVSU “received the designation of ‘regional’ Universities. The ‘regional’ designation signifies a more limited programmatic focus for these institutions, that is, each is expected to restrict course offerings to quality undergraduate instruction.” Ayers, 674 at 1539-40. The 1977 system study became the working document from which the 1981 Mission Statement was developed with only minor alterations. One difference between the role and scope document of 1977 and the Mission Statement of 1981 is the fact that JSU was designated as an “urban” university. The classification of ASU and MVSU as regional universities limited their offerings at the masters level. The 1981 Mission Statement had the effect of maintaining the status quo with respect to programmatic offerings at JSU, MVSU, ASU; MUW and DSU and is consistent with the development of the institutions during the de jure period. In considering the programmatic scope of the universities and comparing the programs of the HWIs with those of the HBIs, it is perhaps easy to fall into the perspective that views fewer comparable offerings at a HBI as indicia of discrimination against black students who are enrolled or might later choose to enroll in the HBIs but, when viewed from the perspective of the Constitution, citizens are not deprived of equal protection of the law where an equal opportunity exists to attend either the more comprehensive HWIs or the less comprehensive HBIs and that opportunity is truly unfettered by vestiges of the past such as, inter alia, differential admissions requirements. (b) ALLOCATION OF PROGRAMS The years 1945 through 1970 were marked by considerable expansion of the system and the period is sometimes referred to as the “college boom years.” During this time period, college enrollment increased substantially at both the HBIs and the HWIs, although the lion’s share of the state’s higher education resources was received by the comprehensive institutions, particularly in the area of programmatic allocations. From 1949-59, approximately 40 doctoral programs were authorized, all of which were developed at USM, MSU, and UM. MSU and USM in particular experienced substantial growth during this time period. There were no master’s degree programs offered at the HBIs in the state until 1951-52 when a master s degree program in education was established at JSU. There were no doctoral degree programs offered in the HBIs in the state until a doctorate in early childhood education was established at JSU. And although JSU gained an “urban” mission in 1981, further expansion into the doctoral arena was not encouraged because MSU, UM and USM were already performing those missions. As was true in 1987, there continues to be no professional programs at the HBIs in the state. Analysis of the time period 1966 to 1974 indicates the extent of programmatic expansion at the HWIs during this time proximate to the Board’s role and scope studies in 1966 and again in 1974-77. From 1966-1974, no HBI offered a doctoral program whereas during this same time period, MSU increased its doctoral offerings from 26 to 35; UM from 18 to 28; and USM from 14 to 37. While ASU offered a master’s degree program in 1966, none was available at that school in 1974. JSU experienced substantial growth at the masters level during this time period and increased its number of masters programs from 2 in 1966 to 23 by 1974. With the exception of UM, all HWIs also experienced substantial growth during this time period at the masters level. Next follows a more detailed review of the institutional histories of Mississippi’s HBIs. (c) ALCORN STATE UNIVERSITY (ASU) ASU is the oldest land grant college established for blacks in the United States. Ayers, 674 F.Supp. at 1527. Prior to its founding in 1871, there were no state institutions of higher learning that blacks could attend. Because of the political climate during the early years of reconstruction, ASU did relatively well in its early years. Its first governing boards were composed exclusively of black persons and its annual appropriations from the state equaled the state appropriation for the University of Mississippi, the only other state institution for higher learning at that time. ASU received three-fifths (%) of the 1862 Morrill funds upon its founding and, although founded as the land grant counterpart to UM, ASU’s function was primarily undergraduate teacher education. In 1875, the Democrat Party returned to power in Mississippi and ASU’s fortunes began to wane. ASU’s state appropriation for 1875 was reduced substantially and, by 1896, the governing board for the university was all white. ASU received substantial programmatic enhancement in the years following de jure segregation. Although offering only six undergraduate programs in education and several in the agricultural and mechanical arts during de jure segregation, ASU’s academic structure now consists of seven divisions. Today, ASU offers thirty-four undergraduate programs, four masters programs, and one specialist degree. ASU has currently 1700 acres, approximately 400 of which house academic facilities. The institution, classified as a regional university, enjoyed salary levels for associate and assistant professors higher on average than either DSU or MUW, its HWI regional peers, both in 1991-92 and again in 1992-93. (d) JACKSON STATE UNIVERSITY (JSU) JSU was acquired by the State of Mississippi in 1940 for the express purpose of providing a training school for black teachers for the black public schools in the state. Ayers, 674 F.Supp. at 1528. Prior to its acquisition, JSU was “Jackson College,” a private four-year institution founded in the 1880’s. Jackson College was forced to move to its present location on Lynch Street in downtown Jackson in 1902 because of racial hostility at the site of the institution’s former location in an area of Jackson near present day Millsaps College. Upon its acquisition by the State of Mississippi, Jackson College was downgraded to a two-year institution and its name was changed to Mississippi Negro Training School. By 1944, JSU had regained four-year status and its mission was broadened after 1954 to a liberal arts and sciences institution with graduate education in teaching. From 1967 through 1984, JSU experienced “a tremendous period of growth.” 674 F.Supp. at 1538. Today, JSU offers thirty-four undergraduate programs, twenty-eight master’s degree programs, five specialist degrees, and four doctoral programs. (e) MISSISSIPPI VALLEY STATE UNIVERSITY (MVSU) Located in the Mississippi Delta region near Itta Bena, MVSU was established in 1946 for the purpose of training black teachers for service in the rural and elementary black schools. MVSU also provided vocational training. Ayers, 674 F.Supp. at 1528. The institution, then known as Mississippi Vocational College, opened its doors in 1950. After its foundin