The United States v. Kirk Fordice case in 1991 involved the issue of segregation within Mississippi's public university system. The Supreme Court ruled that despite no explicit policy enforcing racial segregation, the state had not done enough to dismantle its previous de jure segregated system and was therefore still in violation of the Fourteenth Amendment’s Equal Protection Clause. The court found that policies such as differing admission standards for different universities and duplication of programs at historically black and white institutions perpetuated a racially divided education system. This ruling held that states must eliminate any traceable remnants from their past discriminatory practices to ensure equal protection under law.

In the dissenting opinion for United States v. Kirk Fordice, Governor of Mississippi et al., Justice Scalia argued that the majority's decision to hold Mississippi accountable for its past de jure segregation was misguided and without legal precedent. He contended that there was no evidence of current discriminatory intent in Mississippi's higher education system, which he believed should be the standard for determining a violation of equal protection rights under the Fourteenth Amendment. Furthermore, he criticized the majority’s use of social science data as proof of ongoing discrimination because it could not definitively establish causation between past policies and present disparities among racial groups in college enrollment rates. In his view, this approach unfairly burdened states with rectifying societal inequalities beyond their control or direct responsibility.