Reconsideration of Prior Opinion Concerning Land-Grant Colleges

• Court: Department of Justice Office of Legal Counsel
• Decided: December 23, 1993
• Status: Published

Opinion

Reconsideration of Prior Opinion Concerning Land-Grant Colleges

A fte r re c o n s id e ra tio n o f a p rio r o p in io n , w e a d h e r e to th e c o n c lu sio n th a t the S ta te o f W est V irg in ia m a y v a lid ly d e sig n a te W e s t V irg in ia S ta te C o lle g e as th e b e n e fic ia ry o f a p p ro p ria te d funds u n d e r th e S e c o n d M o m ll A c t o f 1890.

R e v e rs in g o u r p rio r c o n c lu s io n , w e find that th e S la te ’s d e sig n a tio n o f th e C o lle g e as a S e c o n d M o rrill A c t b e n e fic ia ry d o e s n o t m a k e th a t in s titu tio n e lig ib le fo r fu n d s a p p ro p ria te d u n d e r certa in sta tu te s a d m in is te r e d b y th e D e p a rtm e n t o f A g ric u ltu re .

D e c e m b e r 2 3 , 1993

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l D e p a r t m e n t o f A g r ic u l t u r e

This responds to your request that this Office reconsider our opinion that W est V irginia may designate W est Virginia State College (“State College”) as the bene­ ficiary of appropriated funds under the Second M orrill Act, ch. 841, 26 Stat. 417 (1890) (codified as am ended at 7 U .S.C. §§ 321-326, 328) (“Second Morrill Act”), and that, upon such designation, State College would become eligible to receive appropriated funds for agricultural research and extension under 7 U.S.C. §§ 3221, 3222, and 3223.1 A fter reviewing the matter once more, we hereby withdraw our original opinion in favor of the revised views expressed in this memorandum. As explained below, we adhere to our earlier conclusion that W est Virginia may validly designate State College as the beneficiary of appropriated funds under the Second Morrill Act. W e reverse, however, our original conclusion that W est Virginia’s designation of State College as a Second Morrill Act beneficiary made that school eligible for funds appropriated pursuant to 7 U .S.C . §§ 3221, 3222, 3223 and similar statutes. (Follow ing the usage o f Agriculture, we shall refer to these statutes collectively as the “ 1890 derivative statutes ”) Rather, we conclude that State College is not eli­ gible for funds under the 1890 derivative statutes.

I. AN OVERVIEW OF THE LEGAL HISTORY OF THE LAND-GRANT COLLEGE SYSTEM

A know ledge o f the legal history of the land-grant college system is essential to interpreting the Second Morrill A ct and the 1890 derivative statutes. In Subpart A below, we discuss the following four cornerstones of the statutory structure:

1 S ee L etter fo r A lan C h arles Raul, G en eral Counsel, D epartm ent o f A griculture, from Principal D eputy A ssistant A tto rn ey G eneral D ouglas R. C ox, O ffice o f Legal C ounsel (A ug 21, 1992), Letter for D ouglas R C ox, Principal D eputy A ssistant Attorney G eneral, O ffice o f Legal C ounsel, from Jam es M ichael Kelly, A ssociate G en eral C ounsel, Department o f A griculture (O ct. 23, 1992) ("R equest for R econsideration” ). H eretnafter, references to “A griculture ‘ m ean the D epartm ent o f A griculture

184 Reconsideration o f P rior Opinion C oncerning L and-G rant C olleges

Table I

Statute Enactment Main Object of the Legislation

First Morrill Act 1862 Grants states public lands to sell for endow­ ment of agricultural & mechanical colleges

Hatch Act 1887 Authorizes funds for agricultural research at experiment stations established at land-grant colleges or independently by a state

Second Morrill 1890 Authorizes supplemental operating funds for Act land-grant colleges

Smith-Lever Act 1914 Authorizes funds for agricultural extension at land-grant colleges

In Subpart B below, we discuss the evolution of the land-grant college system in West Virginia and elsewhere prior to the enactment of the 1890 derivative statutes. In Subpart C below, we discuss the 1890 derivative statutes.

A.

The First M orrill Act. The land-grant college system began in 1862 with the First Morrill Act, ch. 130, 12 Stat. 503 (1862) (“First Morrill Act”)-2 That statute provided the states with grants of public land or equivalent land scrip. Id. § 1, 12 Stat. at 503. The states that chose to “take and claim the benefit” o f the First M or­ rill Act were required to invest the funds derived from the sale o f the land or land scrip in such fashion that the principal would “remain forever undiminished.” Id. § 4, 12 Stat. at 504. The states were further required to devote the interest gener­ ated by such funds exclusively to the “endowment, support, and maintenance of at least one college where the leading object shall be . . . to teach such branches of

2 For accounts o f the history o f the college land-grant system , see Joseph B Edm ond, The M agnificent C harter The O rigin a n d Role o j the M orrill L and-G ranl C olleges a n d U niversities (1978); Allan N evins, The State U niversities a n d D em ocracy (1962), Edw ard D Eddy, Colleges j o r O ur L a n d and Tim e: The Land-G rant Idea in A m erican Education (1957), and Earle D. Ross, D e m o c ra cy 's C ollege: The U ind-G rant M ovem ent in the F orm ative Stage (1942) For a recent study o f the origins o f the college land-grant system , see Roger L W illiam s, The O rigins o f Federal Support f o r H ig h er Education G eorge W A therton a n d the Land-G rant C ollege M ovem ent (1 991), see also K night v A la b a m a , 787 F Supp. 1030, 1040-53, 1 167-72 (N.D. Ala 1991) (outlining origins and developm ent o f college land-grant system w ith special reference to A labam a), a jf'd in p a r t, re v 'd in part, & vacated in part, 14 F 3d 1534 (11th C ir 1994), A vers v A lla in , 674 F Supp 1523, 1543-50 (N D. M iss 1987) (providing less detailed history o f land-grant system with special reference to M ississippi), a ff’d, 914 F 2d 676 (5th C ir 1990) (en banc), va ca ted sub nom . U nited S tates v Fordice, 505 U S 717 (1992)

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learning as are related to agriculture and the mechanic arts.” Id. The states were required to express acceptance of the land grant (or land scrip) through their legis­ latures.3 Once a state had accepted, it would still lose its benefit unless it provided “within five years . . . not less than one college” o f the prescribed kind. Id. § 5, 12 Stat. at 504. The H atch Act. The A ct of M ar. 2, 1887, ch. 314, 24 Stat. 440 (codified as amended at 7 U.S.C. §§ 361a-390d) authorized appropriations for agricultural re­ search at experim ent stations under the direction either o f a college “established, or which may hereafter be established, in accordance with the provisions of [the First Morrill A ct]” or an independent station established by a state. See id. §§ 1 ,2 , 8, 24 Stat. at 440-42. Unlike the First M orrill Act, the Hatch Act provided for pay­ ments by the federal government directly to the beneficiary institutions, although the appropriations were still said to be “to each State.” Id. § 5, 24 Stat. at 441. In states having tw o colleges established under the First Morrill Act, the funds were to be divided equally unless the state’s legislature directed otherwise. See id. § 1, 24 Stat. at 440. The S econ d M orrill A ct. The Second M orrill Act provided an annual appropri­ ation o f funds “to each State .. . for the more complete endowment and m ainten­ ance o f colleges for the benefit o f agriculture and the mechanic arts now estab­ lished, or which may be hereafter established, in accordance with [the provisions of the First M orrill A ct].” § 1, 26 Stat. at 417-18. The funds so appropriated were to be paid to the state treasurer “designated by the laws of such State . . . to receive the sam e” and then “immediately [paid] over . . . to the treasurers of the respective colleges . . . entitled to receive the sam e.” Id. § 2, 26 Stat. at 418. The use of the funds was restricted to “instruction in agriculture, the mechanic arts, the English language and the various branches o f mathematical, physical, natural and economic science, with special reference to their applications in the industries of life, and to the facilities for such instruction.” Id. § 1, 26 Stat. at 418. The Second Morrill A ct also forbade paym ent of funds appropriated under the Act to colleges “where a distinction of race or color is made in the admission of students.” Id. This prohibition, however, was qualified by a proviso deeming the establishm ent o f a separate college for each race to be sufficient compliance if the funds were divided “equitably” betw een the tw o schools. Id. A second proviso described the m echanics o f “separate but equal” compliance in greater detail:

That in any State in which there has been one college established in pursuance o f the [First M orrill Act], and also in which an educa­ tional institution o f like character has been established, or may be hereafter established, and is now aided by such State from its own

1 T h e deadline for acceptance was two y e ars from the d ate o f the First M orrill A c t's enactm ent. Id. !) 5, 12 Stat. at 504 T h is d ead lin e w as extended to the later o f Ju ly 23, 1869, or three years follow ing a state's a dm issio n to the U nion A ct o f Ju ly 23, 1866, ch 209, 14 Stat. 208.

186 Reconsideration o f Prior O pinion C oncerning Land-G rant C olleges

revenue, for the education of colored students in agriculture and the mechanic arts . . . or whether or not it has received money hereto­ fore under the act to which this act is an amendment, the legislature of such State may propose and report to the Secretary of the Interior a just and equitable division of the fund to be received under this act between one college for white students and one institution for col­ ored students . . . which shall be divided into two parts and paid ac­ cordingly, and thereupon such institution for colored students shall be entitled to the benefits of this act and subject to its provisions, as much as it would have been if it had been included under the act of eighteen hundred and sixty-two, and the fulfillment of the foregoing provisions shall be taken as a compliance with the provision in ref­ erence to separate colleges for white and colored students.

Id. The Sm ith-Lever Act. The Act of May 8, 1914, ch. 79, 38 Stat. 372 (codified as amended at 7 U.S.C. §§ 341-349) established and funded agricultural extension services “in connection with the college or colleges in each State now receiving, or which may hereafter receive, the benefits of the [First Morrill Act] . . . and the [Second Morrill Act].” Id. § 1, 38 Stat. at 372-73. As with the Second M orrill Act, the appropriations were payable to the States for disbursement. Id. § 4, 38 Stat. at 374. States having more than one eligible college were permitted to divide the appropriation as the legislature saw fit. Id. § I, 38 Stat. at 373.

B.

In 1863, the W est Virginia Legislature assented to the provisions of the First Morrill Act. 1863 W. Va. Acts ch. 56. After passage of the Second Morrill Act, the W est Virginia Legislature assented to its terms, designated W est Virginia U ni­ versity as the beneficiary of the funds available under the First Morrill Act, and established State College as the beneficiary o f a portion of the funds for the in­ struction of “colored” students. 1891 W. Va. Acts ch. 65, § l.4 W est Virginia was among a group o f seventeen states that ultimately complied with the Second M or­ rill A ct’s eligibility requirements by establishing a racially segregated land-grant college for black students.5 The class of institutions thus established or designated by these seventeen states are commonly known as the 1890 colleges. The colleges in these same' states that restricted enrollment to white students, as well as the

4 Slate C ollege w as chartered as “The West V irginia C olored Institute." A m erican U niversities and C ol- leges 1822 (14th ed. 1992) In 1915, its nam e was changed to “T he W est V irginia C ollegiate Institute ” Id at 1823. In 1929, State C ollege w as given us present name. Id 5 T he other sixteen states w ere A labam a, G eorgia, Florida, N orth C arolina, South C arolina, V irginia, K entucky, T ennessee, M ississippi, Louisiana, A rkansas, O klahom a, T exas, M issouri, M aryland, and D e la ­ w are See K m ght, 787 F. Supp at 1168, Eddy, supra note 2, a t 257-59.

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non-segregated land-grant colleges in all other states, are commonly known as the 1862 colleges. S ee Knight, 787 F. Supp. at 1145 n.44, 1167-68. In m ost states, there is only a single land-grant college, which receives all of the funds distributed to the state under the four statutes discussed in the preceding sub­ part. Even in states having both an 1862 and an 1890 college, the experiment sta­ tion and extension service funded under the Hatch and Smith-Lever Acts, respectively, are alm ost uniformly located at the 1862 college, which consequently receives all of the appropriations provided pursuant to those two Acts. See id. at 1167-68.6 Furtherm ore, according to Agriculture, no 1890 college receives First Morrill Act funds.7 Consequently, w ith respect to the four statutes outlined above, the only funds that the 1890 colleges receive are a share o f the Second Morrill Act appropriation.8 Thus, except as altered by the 1890 derivative statutes, see infra Part I.C, the pattern of unequal distribution o f federal funds (and o f state funds as well) has rem ained little changed from the inception of the 1890 colleges.9 In the mid-1950s, the Suprem e Court held that the system of racially “separate but equal” state education (including higher education) was unconstitutional.10 The end of de ju r e racial segregation raised the question whether there was a necessity for the continued participation of the 1890 colleges in the land-grant system. See Eddy, supra note 2, at 265-66 (1957). T hus, West Virginia complied with the Supreme C ourt’s decisions by integrating both its 1862 college, W est Virginia University, and its 1890 college, State College, and by consolidating the land-grant function in W est V irginia University. State C ollege was removed from the land-grant system. See 1957 W. Va. Acts ch. 72, John C. Harlan, H istory o f West Virginia State C ol­ lege 1 8 9 1 -1 9 6 5 , at 101-04 (1968). The other sixteen states, however, did not fol­

6 T he ex cep tio n is the State o f Arkansas, w h o se ex p erim en t station is independent o f both its 1862 and 1890 co lleg es. See id a t 1168 7 W e u n d erstan d that n eith er Agriculture n o r the D epartm ent o f E ducation (w hich adm inisters the First M orrill A ct) has reco rd s from w hich to ascertain the s ta te s ’ distribution o f First M o m ll Act funds. But A griculture has in d icated to us that it has no re a so n to believe that any 1890 college receives such funds 8 A g ricu ltu re has pro v ided us with the d istrib u tio n o f S eco n d M orrill A ct funds by states in fiscal year 1991 T he g ran t to each state w as $50,000, a n d for those states having an 1890 college, the portion of the grant that the 1890 college received ranged from a low o f 6% ($3,125) in M issouri to a high o f 50% ($ 25,000 ) in F lorida and South Carolina T h e rem ainder o f the Second M ornll Act appropriations in such states w as g iv en to that s ta te 's 1862 college A ll other states had only an 1862 college, w hich received the entire S eco n d M orrill A ct appropriation 9 See, e g , K n ig h t, 787 F. S u p p at 1040-53, 1167-72; E ddy, supra note 2, at 257-66, Jean Preer, "Just a nd E q u ita b le D iv isio n " Jim C ro w and the 1 8 9 0 L and-G rant C ollege A ct, 22 Prologue 323, 330-32, 334-36 (1990), E d m o n d , su p ra note 2, at 64, W illiam s, supra note 2, at 155-56, Jo h n R W ennersten, The T ravail o f the B la ck L a n d -G ra n t S c h o o ls in th e South, 1890-1917, 65 A gric H ist 5 4 ,6 2 (1 9 9 1 ) 10 See, e g ., B row n v B o a rd o f Education, 347 U.S. 4 8 3 (1954); see also Lucy v. Adam s, 350 U S 1 (1955) Prior to B ro w n , in cases all involving “ the graduate school level, inequality w as found in that spe­ cific ben efits en jo y e d by w h ite students w ere denied to N egro students o f the sam e educational qualifica­ tions *’ B ro w n , 347 U .S at 4 9 1 -9 2 (citing M is s o u ri ex rel G a in es v C anada, 305 U .S. 337 (1938); Sipuel v B o a rd o f R eg en ts, 332 U S 631 (1948), S w e a tt v Painter, 339 U S . 6 29 (1950); M cL aurin v O klahom a S tate R e g e n ts . 339 U S. 637 (1 9 5 0 )) These c ase s, how ever, did not reexam ine the d o ctrine of “separate but e q u al" that h ad b een set forth in Plessv v F erg u so n , 163 U S. 537 (1896) Brow n, 347 U S at 4 92 It was in B ro w n th at the S u p rem e C o u rt held, for th e first time, ‘that in the field o f public education the doctrine of ‘sep a ra te b u t e q u a l’ has no p la c e.” Id at 495.

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low West V irginia’s approach. Although they formally ended discrimination on the basis of race or color in their land-grant college system, they nonetheless re­ tained a dual system of historically white 1862 colleges and historically black 1890 colleges. See Knight, 787 F. Supp. at 1167-68. Furthermore, as indicated above, these states all continued their historical practice of allocating almost all land-grant funding to their 1862 college rather than to their 1890 college."

C.

Beginning in the 1970s, Congress enacted a series of statutes — the 1890 de­ rivative statutes — that in terms authorized appropriations to be distributed directly by Agriculture to colleges eligible to receive funds under the Second Morrill Act. These were:

* Agriculture Environmental and Consumer Protection Appro­ priation Act, 1972, Pub. L. No. 92-73, 85 Stat. 183, 186 (1971) (appropriating “payments for extension work by the colleges re­ ceiving the benefits of the second M orrill Act”);

* National Agricultural Research, Extension, and Teaching Pol­ icy Act of 1977 (“NARET”), Pub. L. No. 95-113, § 1444, 91 Stat. 913, 1007 (codified as amended at 7 U.S.C. § 3221) (authorizing appropriation of payments for “extension at colleges eligible to re­ ceive funds under the Act of August 30, 1890 (26 Stat. 417-419, as amended; 7 U.S.C. 321-326 and 328)”);

* NARET § 1445, 91 Stat. at 1009 (codified as amended at 7 U.S.C. § 3222) (authorizing appropriation of payments for “agricultural research at colleges eligible to receive funds under the Act of August 30, 1890 (26 Stat. 417-419, as amended; 7 U.S.C. 321-326 and 328)”);

* Agriculture and Food Act of 1981, Pub L. No. 97-98, § 1433, 95 Stat. 1213, 1312 (codified as amended at 7 U.S.C. § 3223) (authorization, now expired, for grants for upgrading research equipment and facilities at the “institutions eligible to receive funds under the Act of August 30, 1890(7 U.S.C. 321 e tse q .)”);

* Food Security Act of 1985, Pub. L. No. 99-198, § 1416, 99 Stat. 1354, 1549 (codified as amended at 7 U.S.C. § 3224) (authorization, now expired, for grants for upgrading extension fa­

11 An issue in K night was w hether A lab am a's continued practice o f favoring its 1862 land-grant college m the distribution o f federal funds was a vestige o f de jure racial segregation. The court concluded that it was not Id. ai 1168, 1171-72

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cilities at “institutions eligible to receive funds under the Act of A ugust 30, 1890 (26 Stat. 417, chapter 841; 7 U.S.C. 321 et seq.)”);

* Food, Agriculture, Conservation, and Trade Act o f 1990 (“FA C T A ct”), Pub. L. No. 101-624, § 1612(a), 104 Stat. 3359, 3721 (codified as amended at 7 U.S.C. § 3222a) (authorizing grants for agricultural research “at colleges eligible to receive funds under the Act o f August 30, 1890 (7 U.S.C. 321 et seq.)”);

* FA CT Act § 1612(b), 104 Stat. at 3722 (codified as amended at 7 U.S.C. § 3222b) (authorizing grants to upgrade agricultural and food sciences facilities and equipment “to assist the institutions eli­ gible to receive funds under the Act of A ugust 30, 1890”);

* FA CT A ct § 1612(c), 104 Stat. at 3723 (codified as amended at 7 U.S.C. § 3222c) (authorizing grants for national research and training centennial centers at colleges “eligible to receive funds un­ der the Act o f August 30, 1890 (7 U.S.C. 321 et seq.)”).

Agriculture has construed these statutes as authorizing funding for the sole benefit of the 1890 colleges and has distributed the funds accordingly. The A griculture, Rural Development, Food and Drug Administration, and Re­ lated A gencies Appropriations Act, 1994, Pub. L. No. 103-111, 107 Stat. 1046, (“FY 94 A ppropriation”), appropriates for fiscal year 1994 the funds authorized by the 1890 derivative statutes. This law makes the following appropriations pursuant to the authorization statutes under consideration:

Table 2 Dollar Amount Authorization Description of Recipients _____________________ Statute_________________ in FY 94 Appropriation

$28,157,000 N A RET § 1445 "for p aym en ts to the J890 (7 U.S.C. § 3222) lan d-grant colleges ”

$7,901,000 FA CT Act § 1612(b) “pa ym en ts to upgrade 1890 (7 U.S.C. § 3222b) lan d-grant college research a n d extension facilities ”

$25,472,000 NARET § 1444 "paym ents f o r extension work (7 U.S.C. § 3221) by the co lleg es receiving the benefits o f the seco n d M orrill A c t”

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See FY 94 Appropriation, 107 Stat. at 1051, 1053. The first two appropriations listed in Table 2 limit the beneficiaries to the 1890 colleges. Because the FY 94 Appropriation is Congress’s most recent enactment, its express narrowing of the beneficiary class supersedes any arguably broader lan­ guage in the 1890 derivative statutes that authorized the appropriations. S ee Gen­ eral Accounting Office, P rinciples o f F ederal A ppropriation s L aw 2-35 (2d ed. 1991) (a statutory authorization of appropriations is a directive from Congress to itself that Congress is free to alter in subsequent legislation actually appropriating the funds in question). Hence, none o f the 1862 colleges could be eligible for those funds, regardless o f our interpretation o f the authorization contained in the 1890 derivative statutes.12

II. ISSUES F O R R E C O N S ID E R A T IO N

In 1991, W est Virginia enacted a law renewing its assent to the provisions of the Second M orrill Act and designating State College as the sole beneficiary of federal appropriations available under that Act. 1991 W. Va. Acts ch. 6 0 .13 As discussed above, State College was formerly an 1890 college. Its status as a land- grant college was withdrawn in 1957 as part of West V irginia’s effort to desegre­ gate its higher education system. Thus, the enactment in 1991 represents an at­ tempt to restore State College’s status after a hiatus of thirty-four years. By current standards, the annual appropriation of $50,000 available to each state under the Second Morrill Act is not substantial. Request for Reconsideration, App. at 8-34. Significantly more funding is available, however, under the 1890 derivative statutes. West Virginia seeks funding for State College under both the Second Morrill Act and the 1890 derivative statutes.14 Agriculture contends that State College is not eligible for funding under either the Second Morrill Act or the 1890 derivative statutes.13 Agriculture maintains that an institution may not receive Second Morrill Act appropriations unless it also receives funds under the First Morrill Act. Because W est Virginia has not desig­ nated State College to receive funds under the First Morrill Act, (and State College does not in fact receive funds under that Act), Agriculture concludes that State College may not be designated to receive appropriations under the Second Morrill Act.

'■ T he authorizations for appropriations contained in 7 U S C. Jj§ 3223 and 3224 have expired, and those contained in 7 U S C 3222a and 3222c w ere not funded in the FY 94 A ppropriation n W e express no opinion w hether this statute was valid un d er the law s o f W est V irginia A griculture has not questioned its validity on this ground 1 Letter for Edw ard M adigan, Secretary o f A griculture, D epartm ent o f A griculture, from G aston C aper- ton, G overnor o f W est V irginia at I, 2 (M ar 28, 1991) 13 T he recounting o f A g ricu ltu re's position that follow s is draw n from ihe R equest for R econsideration and from the M em orandum for O rville G B entley, A ssistant Secretary for Science and Education, D epart­ m ent o f A griculture, from A Jam es Barnes. G eneral C ounsel, D epartm ent o f A griculture (M ar 11, 1983)

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Agriculture acknowledges that State College was founded as an 1890 college, which the racial segregation proviso to the Second Morrill Act exempts from any requirem ent of receipt o f First M orrill Act funds. Nevertheless, Agriculture main­ tains that because State College w as withdrawn from the land-grant system, the only way to restore it is by the usual route requiring receipt of benefits under the First M orrill Act. Agriculture argues that the exception to that requirement — the racial segregation proviso — is unconstitutional, and hence, no longer available to W est V irginia.16 Concerning State College’s eligibility for funding under the 1890 derivative statutes, A griculture contends that if State College fails to qualify for appropria­ tions under the Second Morrill Act, it may not take advantage of the 1890 deriva­ tive statutes, which condition funding upon an institution’s eligibility for appropriations under the Second M orrill Act. In addition, Agriculture denies that State College could qualify for funding under the 1890 derivative statutes even if it were eligible to receive appropriations under the Second Morrill Act. It notes that the class of colleges eligible for Second Morrill Act appropriations includes all the 1862 colleges that receive appropriations under the First and Second Morrill Acts. But, A griculture contends, Congress did not intend to benefit every such school. Rather, C ongress intended to benefit only a specific group of sixteen historically black colleges in the land-grant system at the time that the 1890 derivative statutes were enacted (and also the historically black Tuskegee University, which is not a land-grant college). Agriculture invokes legislative history on this point, which it urges must guide the interpretation of the statutory language. Thus, in A gricul­ ture’s view, even assum ing that State College could now be designated to receive First M orrill Act funds, it nevertheless could not qualify for funding under the 1890 derivative statutes, because it is not among the schools that Congress in­ tended to benefit. This O ffice’s original opinion (superseded by this one) agreed with W est V ir­ ginia. W e concluded that a state m ay designate an institution for Second Morrill Act appropriations without designating it for First Morrill Act funds if the school meets the educational requirements of the First Morrill Act and the non­ discrim ination requirem ent of the Second M orrill Act. W e further concluded that the plain language o f the 1890 derivative statutes could not be restricted by the

16 T h e p ro v iso is indeed unconstitutional S ee supra note 10 and accom panying text In reading the proviso out o f the S econd M o m ll Act, A griculture im plicitly assu m es that it is severable from the rem ainder o f that A ct W e agree w ith th at proposition as w ell See A la sk a A irlines, Inc. v. Brock, 4 80 U S. 678, 684 (1987) (stan d ard for d e term in in g severability) S u b se q u en t to o u r original opinion, the A m erican Law D ivision o f the C ongressional Research Service (“ALD*’) has ad v ised that '‘redesignation” o f S ta te C ollege rem ains possible today under the Second M o m ll Act, no tw ith stan d in g the u n c o n stitu tio n a l^ o f the racial seg reg ation proviso S ee M em orandum from A m en can Law D ivision, C on g ressio n al R esearch Service, Library o f C ongress, Re: V alidity o f the S econd M orrill A c t in L ig h t o j B r o w v B oard o f E d u c a tio n at 3 (S ept. 20, 1991). The A LD opinion d oes not, how ever, ad d ress the q u estio n w h eth er an in stitu tio n m ust receive First M orrill Act funds in order to qualify for S eco n d M o m ll A ct funds, n o r does it co n stru e the 1890 d eriv ativ e statutes

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legislative history, and, thus, that West Virginia could qualify for such appropria­ tions after having been designated to receive Second Morrill Act funds. Agriculture has now asked that we reconsider both of these conclusions. It ad­ vances certain textual arguments concerning the Second M om ll Act to bolster its reading of that Act. With respect to the 1890 derivative statutes, Agriculture in­ sists that we must avoid a result that is both absurd in itself and at odds with clear legislative history. Agriculture emphasizes that a decision that State College may share in funding under the 1890 derivative statutes carries potentially broad impli­ cations. The language of these statutes seemingly encompasses a ll schools eligible to receive Second Morrill Act appropriations, including the 1862 institutions. Thus, says Agriculture, “[i]f your opinion were adopted, a minimum of 74 institu­ tions [i.e., all land-grant colleges and Tuskegee University] would become eligible for the [funding] that is now distributed among 17 institutions [i.e., only the 1890 colleges and Tuskegee University].” Request for Reconsideration at 7 Obviously, this outcome would considerably lessen the share of funds given to the 1890 col­ leges. According to Agriculture, this outcome is absurd because the very purpose of the 1890 derivative statutes, as shown by the legislative history, was to remedy a historical inequity: the states that had maintained racially segregated systems had given almost all land-grant funding to their 1862 colleges while excluding the 1890 colleges from the federal bounty. Consequently, Agriculture concludes that the 1890 derivative statutes must be read to authorize appropriations only for the bene­ fit of the 1890 colleges.

III. STATE COLLEGE’S ELIGIBILITY FOR FUNDS UNDER THE 1890 DERIVATIVE STATUTES

On reconsideration, we conclude that the 1890 derivative statutes provide ap­ propriations only for the benefit of the 1890 colleges. Furthermore, we find that State College is not among the intended beneficiaries. Because we think that State College’s eligibility for appropriations under the Second M om ll A ct does not con­ trol its eligibility for appropriations under the 1890 derivative statutes, we leave consideration of the Second Morrill Act to Part IV, infra.

Our analysis of the 1890 derivative statutes is guided by a longstanding rule of construction very recently reiterated by a unanimous Supreme Court:

Over and over we have stressed that “[i]n expounding a statute, we must not be guided by a single sentence or mem ber of a sentence, but look to the provisions of the whole law, and to its object and

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policy.” U nited States v. H eirs o f B oisdore, 49 U.S. (8 How.) 113, 122 (1849) (quoted in more than a dozen cases, m ost recently D ole v. S teelw orkers , 494 U.S. 26, 35 (1990)); see a lso King v. St. Vin­ c e n t’s H ospital, 502 U.S. 215,221 (1991). . . . Statutory construc­ tion “is a holistic endeavor,” U nited Savings Assn. o f Texas v. T im bers o f In w ood Forest A ssociates, Ltd., 484 U.S. 365, 371 (1988), and, at a minimum, m ust account for a statute’s full text, language as well as punctuation, structure, and subject matter.

N ation al Bank o f Or. v. Independent Ins. A gents o f Am erica, Inc., 508 U.S. 439, 455 (1993). All aspects o f a statute, including its title, may be consulted in order to determ ine the congressional intent. See id. (consulting title). It is undisputed that, from the tim e of the Second Morrill A ct’s enactment in 1890 to this day, the colleges eligible to receive funds under that Act have included both the 1862 colleges and the 1890 colleges. Indeed, as indicated above, the Sec­ ond M orrill Act was passed in large part for the specific benefit o f the 1862 col­ leges. On their face, however, the 1890 derivative statutes fail to distinguish between the class o f colleges eligible for Second Morrill A ct funds, including both the 1862 colleges and the 1890 colleges, and the more restricted class of 1890 colleges. For example, although N A R E T § 1444 is entitled “Extension at 1890 Land-G rant Colleges,” 91 Stat. at 1007, the body of § 1444 creates a permanent authorization for Congress “to . . . appropriate[] annually such sums as Congress may determ ine necessary to support continuing agricultural and forestry extension at co lleg e s elig ib le to receive fu n d s under the [ the S econ d M o rrill A ct].” Id. (em phasis added). Similarly, NARET § 1445 is entitled “Agricultural Research at 1890 Land-G rant Colleges;” the substantive text of § 1445, however, authorizes annual appropriations o f “such sum s as Congress may determine necessary to sup­ port continuing agricultural research at colleges eligible to receive fu n d s under the [S eco n d M o rrill A c t].” 91 Stat. at 1009 (em phasis added). Thus, were we to con­ sider the substantive provisions of the 1890 derivative statutes alone, without ref­ erence to the titles, the legislative history, the other portions of the statutory text, or the structure and purpose of the overall statutory scheme for the land-grant col­ leges, we would be forced to conclude that those provisions benefited 1862 and 1890 colleges alike. Such a conclusion would, however, be at odds with the unmistakable purpose of the 1890 derivative statutes. That purpose is to rectify the historical imbalance of funding between the 1862 and 1890 colleges — an imbalance that originated in racial segregation. The House R eport concerning § 1444 o f NARET described its purpose as follows:

The comm ittee intends that the 1890 land-grant colleges . . . be­ com e partners in the D epartment’s agricultural research effort in the

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food and agricultural scie n c e s.. .. [T]he research capacity in the food and agricultural sciences at the 1890’s . . . is not as great as the agricultural research capacity of many o f the 1862 schools. How­ ever, it must be emphasized that very few of the 1890 schools . . . receive any state funding, and Federal funding for agricultural re­ search, which has not been on a permanent basis but rather on a grants basis, has only been available to the 1890’s . . . since 1967. Permanent funding for agricultural research has been available to the state agricultural experim ent stations of the 1862 institutions since 1887.

H.R. Rep. No. 95-348, at 122 (1977) (“House R eport”). During hearings concerning § 1433 of the Agriculture and Food Act o f 1981, the need for the bill was put as follows:

This Congress has been supporting agricultural research for a long time. As far back as 1862, Congress set up the land grant col­ lege system. Over the years, the institutions created under the 1862 Act have been helped to build research programs which are the envy of the world.

Later, in 1890, Congress passed a second Morrill Act which was designed specifically to support black land grant institutions. . . . These institutions, which were originally created under the old separate-but-equal doctrine, have had to make do with inadequate state funding and little or no federal funding in the past for research, teaching and extension. Their achievements with limited resources have been tremendous, but . . . there is a limit to the number of bricks a man can make without straw. The 17 institutions we are dealing with need help now to bring their food and agricultural re­ search facilities up to acceptable levels.

The 1890 colleges need, simply, to catch up. That is what H.R. 1309 is designed to help them do.

1890 Land-G rant C olleges F acilities: H earings on H.R. 1309 B efore the Sub- comm. on D epartm ent O perations, Research, and Foreign A griculture o f the H ouse Comm, on Agriculture, 97th Cong. 8-9 (1981) (“House H earing” ) (prepared statement of Rep. de la Garza); see also id. at 13-17 (prepared statem ent o f Rep. Ford) (contrasting historically “meager funding” by the states and the federal gov­ ernment for the 1890 colleges with the “royal treatment” provided for the 1862 colleges, and asserting that H.R. 1309 would provide ‘“ catch-up” ’ funds to the 1890 colleges “for years o f past neglect”).

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In drafting the 1890 derivative statutes to benefit the 1890 colleges, however, Congress conflated two distinct classes: colleges eligible to receive Second M or­ rill Act funds, and the 1890 colleges. Thus, with respect to NARET §§ 1444 and 1445, both the Conference and the House Reports use the description “colleges eligible to receive funds under the [Second M orrill A ct]” interchangeably with “ 1890 institutions.” See, e.g., S. Conf. Rep. No. 95-418, at 225-28 (1977) (“Conference R eport”); House R eport at 123-24. In fact, of course, the terms are not interchangeable, because all o f the 1862 colleges, as well as the 1890 colleges, receive Second M orrill A ct funds. Congress also understood the class o f 1890 colleges to consist wholly of sixteen identified, historically black schools. See, e.g., H.R. Rep. No. 97-151, at 3 (1981) (enum erating the sixteen 1890 colleges).17 It appears that Congress intended to fund only the sixteen identified 1890 col­ leges, and mistakenly assumed that only they w ere eligible for Second Morrill Act funds. The Conference and House Reports specifically contrast the 1890 colleges with the 1862 colleges, thus showing that Congress understood the distinction be­ tween the two classes, even though it supposed that only the former class was eli­ gible for Second M orrill Act appropriations. S ee Conference Report at 225-27; House Report at 122. Thus, the legislative history suggests that NARET §§ 1444 and 1445 were intended to authorize appropriations only for the 1890 colleges.18 References to unenacted materials evidencing C ongress’s intent would not alone be sufficient to control the enacted language o f N A RET §§ 1444 and 1445, even if those m aterials dem onstrated that th e statutory language Congress adopted derived from a m istake o f fact or law. See INS v. Chadha, 462 U.S. 919, 944-51 (1983) (holding that passage by House and Senate and presentment to President are pre­

17 In a d d itio n to the six teen 1890 colleges. C o n g ress ex p licitly nam ed T uskegee U niversity -- w hich does not receive S econd M o m ll A ct fu n d s - as a b en eficiary in each o f the 1890 derivative statutes, bringing the total n u m b e r o f b en eficiaries to seventeen sch o o ls. Like the o th e r sixteen colleges, T uskegee U niversity is a historically b lack in stitu tio n S e e K night, 787 F Supp at 1086-89, 1093 18 C o n g re ss ’s assum ption, that only the 1 8 9 0 colleges receiv e the benefits of the Second M orrill Act, is w idely shared. See K night, 787 F. Supp at 1145 (finding b a se d on expert testim ony that “[tjhere is a popu­ lar m isc o n ce p tio n th at the 1890 lan d grant c o lle g e s . got all the m oney authorized by [the Second M om ll A ct]"). In deed, both the ju d ic ia ry and the e x ec u tiv e branch have m ade the sam e m istake See A v e rs v. A l­ lo w , 6 74 F S u p p 1523, 1543 (N D. Miss. 1987) (court e rro n e o u sly describes M ississip p i's 1890 institution as "th e lan d -g ran t institu tio n desig n ated by th e state to receiv e funds pursuant to the second M o m ll A ct”), a ff’d, 9 1 4 F.2d 6 7 6 (5th C ir 1990) (en banc), vacated su b n o m , U nited States v. F ordice, 505 U S 717 (1992) (e m p h a sis ad d ed ); C on feren ce Report a t 227 (rep ro d u cin g letter from the Secretary o f A griculture that c o m m e n ts on H ouse d ra ft o f the provisions that ultim ately becam e §§ 1444 and 1445 and show s that he shared the assu m p tio n o f the d rafters that the c la ss o f b en eficiaries w ould be exclusively the 1890 colleges, notw ith stan d in g that the text o f the draft bill d e fin e d the elig ib le class as those colleges eligible to receive Second M o m ll A ct funds) T he so u rce o f c o n fu sio n m ay be that the historically b lack land-grant colleges are the only land-grant institutio n s estab lish ed under the Second M orrill Act, and they are called the “ 1890 c o lle g e s /’ w hich height­ ens the im p ressio n that they w ere the principal b eneficiaries o f the S econd M orrill A ct See, e g , H ouse H earing at 8-9 (p rep ared statem en t o f Rep. d e la G arza) (*‘[I]n 1890, C ongress passed a second M o rn ll Act w hich i w j d e sig n e d sp ec ific a lly to support b la c k land g ra n t in stitu tio n s.") (em phasis added); Preer, supra note 9, at 323 ( “ It is ironic . . that the Second M o m ll Act, fin ally passed in 1890 and still in effect a century later, is n o w k n o w n for its incidental beneficiaries, black la n d -g ran t colleges. . . These colleges are w hat we now call the 11890 c o lleg es ’" ) (footnote o m itted)

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requisites o f valid legislation); G ray v. U nited States, 76 F. Supp. 102, 104 (Ct. Cl. 1948) (holding that courts “have no power to, in effect, reform statutes because Congress, in writing them, labored under a misapprehension as to facts or law”). Our obligation, however, is to give meaning and effect to the entirety o f the rele­ vant statutory texts, and we can do so here only if we assume that the 1890 deriva­ tive statutes were designed for the sole benefit of the 1890 colleges. An interpretation of NARET §§ 1444 and 1445 that takes those provisions to refer only to the 1890 colleges is the only reading of the statute that can account for the “full text, language[,] . . . structure, and subject m atter.” N ational Bank o f O r., 508 U.S. at 455. As detailed below, this understanding o f the 1890 derivative statutes helps ex­ plain certain provisions in those enactments that otherwise would remain anoma­ lous. Although these anomalies do not necessarily rise to the level of intrinsic textual ambiguity, nor do they create patently absurd results, our ability to explain them provides some assurance that our use of legislative history has contributed to a proper understanding of the text.19 The first anomaly has to do with the computation o f funding authorized by NA­ RET §§ 1444(a) and 1445(a). In § 1444(a), it is keyed to a percentage of the amount of funds appropriated for extension work under the Smith-Lever Act. See 91 Stat. at 1007. Likewise, in § 1445(a), research funds are authorized in an amount based upon a percentage of the level of funds appropriated for agricultural research under the Hatch Act. See id. at 1009. As noted above, however, every state has given its Smith-Lever and Hatch Act funds exclusively to its 1862 college and experiment stations controlled exclusively by those schools (except Arkansas, which has an independent experim ent station). If §§ 1444 and 1445 are designed to rectify the states’ historic discrimination between the 1862 and 1890 colleges, these funding mechanisms would have a discernible purpose. But if §§ 1444 and 1445 are read to benefit the 1862 colleges as well as the 1890 colleges, then Con­ gress would have created a (much smaller) duplicate mechanism to fund research and extension at colleges already receiving appropriations for these purposes under the Smith-Lever Act and the Hatch Act. It also seems unlikely that when Congress provided “catch up” funds for the 1890 colleges, it did so by appropriating still more funds for the 1862 colleges already acknowledged to be receiving the lion’s share of state and federal land-grant funding. It is more consonant with the statu­

19 S ee Retch i’ G reat Lakes Indian Fish a n d W tldhje C iim m 'n, 4 F 3d 4 90 (7th C ir 1993) T here, the court suggested that one may “ seek m eaning beneath the sem antic level not only w hen there is an ‘intrinsic' am biguity but also w hen there is an ‘ex trin sic ’ one, that is, w hen doubt that the literal m eaning is the correct one arises only w hen one know s som ething ab o u t the concrete activities intended to [be] regu- late[d].” Id. at 494. Thus. “ A literal reading o f the F air Labor Standards Act w ould create a senseless d is­ tinction betw een Indian police and all other public police N othing in the A ct alerts the read er to the problem ; you have to know that there are Indian police to recognize it But once it is recognized, the Act, view ed as a purposive, rational docum ent, becom es am b iguous, creating room for interpretation W e cannot think o f any reason other than oversight why C ongress failed to extend the law enforcem ent exem ption to Indian police [and] no reason has been suggested to us." Id.

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tory purpose to read the 1890 derivative statutes as appropriating funds solely for the 1890 colleges. A second anom aly occurs in NARET § 1444(c), which contains presuppositions that make sense only if § 1444 is read to apply solely to the 1890 colleges. Sub­ section (c) provides: “The State director o f the cooperative extension service and the adm inistrative head for extension at the eligible institution in each State where an eligible institution is located shall jointly develop, by mutual agreement, a com­ prehensive program of extension for such State.” 91 Stat. at 1008. As mentioned, every state has an extension service created under the Smith-Lever Act and at­ tached to that state’s 1862 college. This subsection, however, contemplates that not every state has an eligible institution (making it necessary to include the phrase “where an eligible institution is located”). It also presupposes a distinction be­ tween the statew ide extension program and the extension program at an eligible institution, whose administrative heads are instructed to work “jointly.” These presum ptions do not make sense if § 1444 is read to include the 1862 colleges, which have extension programs. They make sense, however, if § 1444 is read to establish a new extension program for the exclusive benefit of the 1890 colleges, which are found only in sixteen states and do not have an extension program under the Sm ith-Lever Act. Indeed, the Conference Report confirms that the purpose of subsection (c) is to coordinate the extension program newly created under § 1444 at each 1890 college with the existing extension program at the 1862 college lo­ cated in the same state. Conference Report at 226-27; see also House Report at 122 (“ [T]he com m ittee wishes to stress its desire that the agricultural research con­ ducted at the 1890’s . . . and the involved 1862 institutions not be duplicative.”). A third anom aly appears in § 1433(a) o f the A griculture and Food Act o f 1981, which is opaque unless read to benefit only the 1890 colleges. It states:

It is hereby declared to be the intent of Congress to assist the in­ stitutions eligible to receive funds under the [Second M om ll Act] . . . in the acquisition and improvement o f research facilities and equipm ent so that eligible institutions may participate fully with the State agricultural experiment stations in a balanced attack on the re­ search needs of the people o f their States.

95 Stat. at 1312. As has been indicated, no state has more than one agricultural experim ent station, and all (but one) of these are under the control of an 1862 col­ lege that receives Second Morrill Act benefits. Section 1433(a) cannot refer to both the 1862 and 1890 colleges because that would mean that the 1862 colleges in states w ithout 1890 colleges are to “participate fully” with them selves in perform­ ing agricultural research. Thus, the text makes sense only if the eligible institutions are understood as a class separate from the existing state agricultural experiment stations. Properly construed, the section reflects once again the congressional pur­

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pose o f providing additional funding to the 1890 colleges to restore “balance[]” in the allocation of federal funds between the 1862 and 1890 colleges, thus rectifying a perceived imbalance that had prevented the 1890 colleges from “participat[ing] fully” in agricultural research. The very same analysis applies to the language of § 1416(a) o f the Food Secu­ rity Act of 1985, 99 Stat. at 1549, setting forth a declaration of congressional intent in authorizing grants to upgrade cooperative extension facilities. The title of § 1416, moreover, is “Grants to upgrade 1890 land-grant college extension facili­ ties.” Id. In sum, a number of anomalies disappear when the 1890 derivative statutes are read as benefiting solely the 1890 colleges. There are, moreover, aspects of the 1890 derivative statutes that affirmatively support such a reading. First, it is sig­ nificant that all of the 1890 derivative statutes allocate funds not to the states, as is true of the earlier land-grant statutes, but directly to the eligible institutions.20 The legislative history indicates that Congress understood this structure as a departure from prior practice with respect to the 1862 colleges. See Conference Report at 226 (rejecting a Senate bill provision that would have provided that the states “act as intermediaries with respect to the extension programs between the 1890 institu­ tions and the Secretary of Agriculture in the same manner as currently exists for 1862 institutions” in favor of a House am endm ent that provided for a direct rela­ tionship between the 1890 institutions and the Secretary). This difference in structure is consistent with the expressed purpose of the 1890 derivative statutes to rectify an imbalance of funding brought about largely by the discriminatory action of the states in their allocation of federal (and state) funds. Second, as noted above, the titles of most o f the 1890 derivative statutes ex­ pressly refer to funding for the 1890 colleges. See, e.g., NARET § 1444, 91 Stat. at 1007 (“Extension at 1890 land-grant colleges”); FACT Act § 1612(b), 104 Stat. at 3722 (“Grants to upgrade agricultural and food sciences facilities at 1890 land- grant colleges”). The titles provide strong textual evidence that the 1890 deriva­ tive statutes are designed to benefit only the 1890 colleges. Finally, the sums appropriated pursuant to the 1890 derivative statutes are much smaller than those appropriated pursuant to the earlier land-grant statutes. For ex­ ample, the FY 94 Appropriation provides the 1862 colleges and experiment sta­ tions with $272,582,000 in Smith-Lever Act funding for extension work and $171,304,000 in Hatch Act funding for research. In contrast, it provides only $25,472,000 for extension work pursuant to NARET § 1444 and $28,157,000 for research pursuant to NARET § 1445. See 107 Stat. at 1051, 1053. In each case, if the N A RET funds were divided over seventy-four schools (the combined total o f the 1862 and 1890 colleges and Tuskegee University), no school would derive

20 A lthough the H atch A ct provides for disbursem ent o f funds by the federal governm ent directly to the beneficiaries, the states effectively each choose the beneficiary, and the appropriation is said to be '“to each State ” 24 Slat, at 441

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much benefit from its share of funds and the am ount received by an 1862 college would be m inuscule relative to the funds that each such college will receive for essentially the sam e purposes pursuant to the Sm ith-Lever and Hatch Acts. These circum stances suggest that the congressional intent was not to divide the 1890 de­ rivative funds am ong all the land-grant colleges, but only among the 1890 colleges. See R ose v. R ose, 481 U.S. 619, 630-31 (1987) (em ploying division o f appropria­ tions am ong beneficiaries to determine meaning o f statute). O ur exam ination o f the FACT A ct § 1612, 104 Stat. at 3721, as well as its leg­ islative history, confirm s that Congress continued to equate the colleges eligible to receive benefits under the Second M orrill Act with the 1890 colleges. See, e.g., H.R. C onf. Rep. No. 101-916, at 1047-48 (1990). The same is true o f the FY 94 Appropriation, 107 Stat. at 1051-53, and its legislative history. See, e.g., H.R. Rep. No. 103-153, at 29, 40 (1993); S. Rep. N o. 103-102, at 29, 40-1 (1993). Thus, the class of intended beneficiaries has not changed.

Having concluded that Congress intended the phrase “eligible to receive funds [under the Second M orrill Act]” to refer solely to the 1890 colleges, we must de­ termine w hether State College falls within this class. Congress understood this class to encom pass a specific list o f sixteen identified schools (to which was added the Tuskegee Institute). See, e.g., H.R. Rep. No. 97-151, at 3 (1981) (listing the 1890 colleges). Because State College was not among the identified schools, it would seem that it may not share in 1890 derivative funding. C ongress’s list of 1890 colleges, moreover, likely was drawn from the general understanding of the term “ 1890 college” as a category encompassing historically black land-grant colleges with a com m on genesis in the Second Morrill Act. Originally, State College was commonly understood to be among this group. Be­ cause State College was withdrawn from the land-grant system, however, it lost its standing as an 1890 college. Thus, when the 1890 derivative statutes were passed, this term was no longer commonly understood to include State College.21 State College, therefore, was not (and could not have been) among the intended benefi­ ciaries of those statutes. It m ight be argued nonetheless that W est V irginia’s putative restoration of State College to the land-grant system also restored it to the category of 1890 colleges.22 W est V irginia took this action in 1991, prior to the 1993 enactment o f the FY 94

21 C om pare, e.g , E ddy, su p ra noie 2, at 2 5 8 -5 9 (1 9 5 7 ) (State C ollege included am ong the 1890 colleges) with, e E d m o n d , su p ra note 2, at 63 (1978) (State C ollege ab sen t from list o f the 1890 colleges otherw ise draw n from E d d y 's book). 22 T h is m ay be the b asis o f W est V irg in ia G o v ern o r C a p e rto n 's suggestion that W est V irginia's * re d e sig n a tio n ” o f State C ollege under the S eco n d M orrill A ct m akes it eligible for 1890 derivative funding See L e tte r for E dw ard M adigan, Secretary o f A g ricu ltu re, D epartm ent of A griculture, from G aston Caperton, G o v ern o r o f W est V irg in ia at 2 (A ug. 9, 1991).

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Appropriation. Therefore, we cannot a p rio ri exclude the possibility that, at the time the FY 94 Appropriation was enacted, either Congress believed that State College was once again an 1890 college or, in a more general sense, that “ 1890 college” as a term of art once again included State College. The A ppropriation’s legislative history, however, does not offer any discussion as to what schools Con­ gress thought were among the 1890 colleges.23 Furthermore, the general usage does not appear to have changed.24 In light o f the previous congressional belief (as well as the general understanding among those using the term) that State College was not one of the 1890 colleges, this silence is tantamount to not recognizing State College’s restoration as an 1890 college.25 Consequently, we conclude that the reference to 1890 colleges in the FY 94 Appropriation does not include State College. Accordingly, State College may not share in the funds appropriated in the FY 94 Appropriation pursuant to the authorizations contained in the 1890 deriva­ tive statutes.

IV. STATE COLLEGE’S ELIGIBILITY FOR FUNDS UNDER THE SECOND MORRILL ACT

W e turn now to the question posed by A griculture’s Request for Reconsidera­ tion whether a land-grant college may receive Second Morrill Act appropriations if it does not receive funds under the First Morrill Act. The Second M om ll Act provides an annual appropriation of funds “to each State . . . for the more complete endowment and maintenance of colleges for the benefit of agriculture and the mechanic arts now established, or which may be hereafter established, in accordance with [the provisions o f the First Morrill Act].” Id. § 1, 26 Stat. at 417-18. Agriculture construes this general language to condi­ tion the eligibility of a college to receive funds under the Second Morrill Act upon its designation as a recipient of First Morrill Act funds. In our original opinion, we reached the opposite conclusion, construing this language to impose only a re­ quirement that a college conform to the educational requirements of the First M or­ rill Act (and the non-discrimination requirement in the Second Morrill Act). In light of our conclusions in Part III, supra, this issue does not have any bear­ ing on the question of whether State College (or any college) may qualify for

21 See, e g , H R Rep No. 103-153, at 29, 40, S Rep. No. 103-102, at 29, 40 N or is there such a discus- sion in the legislative history accom panying A g riculture’s appropriation bill for fiscal year 1993. See, e g , H R R ep No 102-617, at 41 (1992), S Rep N o 102-334, at 4 0 (1992). 24 See, e g , K night v. A labam a, 787 F S upp at 1168 (W est V irginia absent from list of states having 1890 institutions), A C entury oj S ervice L and-G ratit C o lleg es and U niversities, 1890-1990 xx, 15 (R alph D C n sty & Lionel W illiam son eds , 1992) (notes that W est V irginia founded State C ollege as a b la c k land- grant college but later rescinded land-grant statu s; om its State C ollege from list of 1890 colleges). 25 S ee Walton v. U nited C onsum ers Club, Inc , 786 F 2d 303, 310 (7th C ir 1986) ( ‘‘[B ]ecause the purpose o f language is to use shared understandings, m eanings held by both w riter and reader, a court m ay not as­ sum e that C ongress picked an unusual m eaning unless som e evidence supports that in terpretation.’’).

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funding under the 1890 derivative statutes. M oreover, we note that there are no restrictions on the division of funds between schools eligible for First Morrill Act funds. See infra note 27 and accompanying text. Therefore, as Agriculture has acknow ledged, W est Virginia “could meet the threshold of 1862 designation by giving State College one dollar of 1862 monies per year.” Request for Reconsid­ eration at 10. Furtherm ore, as indicated earlier, the annual appropriation for each state under the Second Morrill Act is not large by today’s standards. These con­ siderations substantially reduce the practical importance of any decision on this issue. N onetheless, since State C ollege’s eligibility for Second Morrill Act funding remains in dispute, we will reconsider the issue. W e conclude that, although the question is a close one, the balance o f the evidence favors our original view. T he legislative history of the Second M orrill Act suggests that Congress be­ lieved that the appropriated funds would in fact be used to supplement the funds available to the land-grant colleges and departments that had been established by the states pursuant to the First M orrill Act.26 Furtherm ore, the development o f the land-grant system has indeed followed this course. Except for the 1890 colleges, only colleges receiving the benefits o f the First M orrill A ct have been designated by their respective states to receive appropriations under the Second Morrill Act. Nonetheless, in our original opinion, we took the view that the statutory language did not specifically mandate that the states allocate Second Morrill A ct funds only to colleges already endow ed with F irst Morrill A ct funds if a state (such as W est Virginia) wished to do otherwise. In support o f our original construction of the Second Morrill Act, these kinds of considerations may be cited: the statutory scheme, the contrast with the language of a sim ilar statute, the longstanding practice o f those administering the Act, and judicial construction of it. First, the existence o f such a specific limitation seems at odds with the statutory scheme, w hich vests the states with very broad power to allocate Second Morrill Act appropriations to institutions o f their choosing. Thus, the Suprem e Court in Wyoming ex rel. Wyoming Agric. C ollege v. Irvine, 206 U.S. 278, 284 (1907), sum m arized the plenary nature o f the states’ power over First and Second M orrill Act funds as follows: “the fund and its interest [under the First M orrill Act] and the annual appropriations [under the Second Morrill Act] are the property o f the State and not of any institution within it.”27 This statutory scheme renders the proposed limitation virtually superfluous because, as Agriculture con-

26 See, e.g , S R ep N o. 51 - 1028, at I -2 (1 8 9 0 ); H R. Rep N o. 51 -2697, at 1, 2, 4-6 (1890). 27 A state m ay sele c t one o r m o re schools a s b en efician es o f F irst and Second M om ll A ct funds, allocate the fund s as it ch o o ses am ong qualified b en efician es, and w ith d raw the designation of a previously selected school. See, e g , S ta te ex rel Mooclie v. B ry a n , 39 So 929, 951 (Fla. 1905) (holding that state has full pow er o v er d isp o sitio n o f appropriation and m ay w ithdraw it from an institution already receiving a share), M a ssa c h u setts A g ric. C o lleg e v MarcJen, 30 N .E . 555, 557 (M ass. 1892) (holding that states may divide the Second M o rn ll A ct app ro priatio n am ong schools, they are not restricted in the num ber o f beneficianes ex­ cept in states practicin g racial segregation, w h ic h are required to have no more than one school for each race).

202 R econsideration o f P rior Opinion Concerning L and-G rant C olleges

cedes, a state may qualify a school for Second Morrill Act appropriations by allo­ cating to it but one dollar of First Morrill Act funds.28 A second consideration is the difference in language between the Second M or­ rill Act and the Smith-Lever Act of 1914. The Smith-Lever Act follows the struc­ ture of the Second M orrill Act in giving appropriated funds to the states. 38 Stat. at 373. It expressly provides, however, that the states must allocate the appropri­ ated funds for extension work at “the college or colleges in each State now receiv­ ing, or which may hereafter receive, the benefits of the [First Morrill Act] . .. and of the [Second Morrill Act].” Id. Thus, Congress knew how to impose this type of requirement in clear language when it wished to do so. The contrasting absence of an explicit requirement in the Second Morrill Act tends to show that none was in­ tended. A third consideration is that Agriculture to this day has permitted the states to continue giving Second Morrill Act appropriations to the 1890 colleges without requiring that they receive First Morrill Act funds, notwithstanding the invalidity o f the racial segregation proviso. See supra note 10 and accompanying text. W ithout the benefit of the exemption contained in that proviso, however, all of the 1890 colleges should have been subject to what Agriculture takes to be the requirement that they receive First Morrill Act funds, to the same extent as if they were 1862 colleges. Thus, Agriculture’s administration of the Second Morrill Act does not support its position with respect to State College. Finally, the judicial decisions construing the Second Morrill Act support our construction of the Act, although we agree with Agriculture that they are not dis­ positive o f the precise question at issue. The cases concerning requirements for receipt of First and Second Morrill Act funds have focused on the type of educa­ tion to be provided by a college in order to be eligible for such funds. See M arden, 30 N.E at 556-57 (holding that a college may receive First and Second Morrill Act funds if it is of the type specified in the First Morrill Act); In re Agric. Funds, 21 A. 916, 917 (R.I. 1890) (holding that the failure of Rhode Island’s agricultural school to teach the mechanic arts disqualified it from Second Morrill A ct funds that were intended “ ‘for the benefit of agriculture and the mechanic arts.’”) (emphasis added) (quoting the First Morrill Act, § 4, 12 Stat. at 504); S tate ex rel. Wyoming Agric. C ollege v. Irvine, 84 P. 90, 100 (Wyo. 1906) (sum m arizing In re Agric. Funds as a decision that “held . . . that a mere agricultural school was not within the contemplation of the [First and Second Morrill A cts]”), a ff’d. 206 U.S. 278 (1907). These decisions do not say that receipt of First M om ll Act funds is a prerequisite for eligibility for Second Morrill Act appropriations. On the other hand, neither M arden nor In re Agric. Funds holds squarely that a college may

28 M oreover, C o n g ress's evident purpose in the First and Second M orrill A cts w as to prom ote a certain lype o f educational institution — i e , '‘colleges devoted to agriculture and the m echanic arts. * A g ric u ltu re's requirem ent -- that a school receive First M orrill Act funds -- does not advance this purpose to any greater degree than o u r construction, which requires that any school eligible to receive Second M orrill Aci funds also conform to the educational requirem ents im posed by the First and Second M orrill Acts

203 Opinions o f the O ffice o f L egal C ounsel

receive Second Morrill Act funds even if it does not receive First Morrill Act funds. In M arden, Massachusetts Institute of Technology in fact was receiving both. In In re Agric. Funds, the court denied the state agricultural college eligibil­ ity for Second M orrill Act funds.29 Agriculture nonetheless contends that the statute does require that any college receiving Second M orrill Act appropriations have been designated for First Morrill Act funds. A griculture infers this requirem ent primarily from the recitation that the Second M orrill A ct’s appropriations are “for the more complete endowment and m aintenance” of the land-grant colleges. The suggestion is that the words “more com plete” imply that the states are required to use these funds solely to supplement the endow m ent o f schools receiving First Morrill Act funds. Agriculture reinforces this point by noting that the First M orrill A ct requires states to “take and claim the benefit” for “at least one college.” 12 Stat. 504. Under the terms of the First M or­ rill Act, a state failing to designate at least one beneficiary would forfeit its benefit entirely under that Act, id. at 504-05, without which no institution could be “more com p letely ] endow ed” under the Second M orrill Act. In light of the considera­ tions discussed above, we doubt that the very general language concerning the pur­ pose o f the Second M orrill Act can support the construction that Agriculture has placed upon it. The text of the Second Morrill Act, however, lends support to Agriculture’s view for another reason. The Second M orrill A c t’s (invalid) racial segregation proviso deem ed the establishment o f institutions for “colored students” to be com ­ pliance with the proviso that forbade discrimination in the admission of students based on race or color. It did so by authorizing states having a college “established in pursuance o f [the First M omll A ct]” to establish (if they had not already done so) an institution “o f like character” for black students, “whether or not it has re­ ceived money heretofore under the [First M orrill A ct].” 26 Stat. at 418. This lim ­ ited exem ption of schools for “colored students” from receipt of First Morrill Act funds would seem to imply a congressional understanding that schools receiving appropriations under the Second M orrill Act and not established under the proviso be otherw ise subject to the requirement of receiving o f First Morrill Act funds. Som e pertinent legislative history also substantiates Agriculture’s view. Most relevant is a floor exchange between Senator Hoar and Senator Blair. During a discussion o f the draft bill, Senator Hoar suggested that the bill ought to, but did not, allow states to allocate the appropriated benefits to an institution devoted to the agriculture and mechanic arts “which did not receive the benefit of the original

29 R hode Isla n d ’s ag ricu ltu ral school was n o t a recipient o f First M o m ll A ct funds (only Rhode Island’s B row n U n iv ersity ap p ears to have been specifically so desig n ated ) T hus, the court could have disqualified the agricu ltu ral school from Second M om ll A ct appropriations on this ground alone, if it had read that A ct in the m an n er that A g riculture proposes. That th e court d enied the agricultural school Second M om ll Act appropriatio n s fo r an en tirely d ifferen t reason, w hich w as the s c h o o l's failure to teach the m echanic arts, supports the v iew that there is no requirem ent th a t a school receive First M o m ll Ace funds in order to e lig i­ ble for d esig n atio n as a S econd M o m ll Act b eneficiary. S e e 2 1 A at 917

204 R econsideration o f P rior Opinion C oncerning L and-G rant C olleges

benefaction.” 21 Cong. Rec. 6086 (1890). He suggested that the bill be amended to rectify this perceived deficiency. Senator Blair — who was answering questions and objections from the Senators concerning the bill — asserted initially that the bill did not require amendment because it “meets . . . the suggestion[] of [Senator Hoar] as it now is.” Id. This initial response implied that the bill did not require colleges to receive First Morrill Act funds in order to be eligible for the new ap­ propriation. When Senator Hoar expressed skepticism that the bill met his con­ cerns, however, Senator Blair elaborated as follows:

It was not the understanding of the committee that we were rec­ ommending an annual appropriation for an indefinite number of colleges which might hereafter come to be established. M eritorious colleges undoubtedly will be established including the same subject matter; but it was thought that the States where these colleges are should receive a certain specific amount, $15,000 a year, and let them appropriate that money, as they necessarily must now, to the single agricultural college that exists in each State.

If there should be subsequently from those same funds — and I do not see how it can be done, for the whole amount that was real­ ized from the lands under that act is already invested in every State — but if it is conceivable that they should be subdivided and those institutions multiplied with the funds already in the possession of the State, then let them divide this annual appropriation for the sup­ port o f several if they see fit, but otherwise let it be concentrated upon a single one of the institutions. However, they must be insti­ tutions which derive their vitality from the original act of Congress making appropriations of the public lands. The nation itself cer­ tainly ought not to be dragged beyond what originates in that spe­ cific act of Congress in the way o f support of the agricultural colleges and those of the mechanic arts which the States may see fit to multiply among themselves hereafter.

Id. at 6087. This statement suggests that Senator Blair viewed the Second Morrill Act as prohibiting states from allocating funds to colleges not endowed with First Morrill Act funds. O f course, the statement is at odds with Senator B lair’s initial response to Senator H oar’s suggested amendment. Nonetheless, it is much more detailed than the initial response and therefore likely reflects Senator B lair’s views more accurately. Senator B lair’s statement, however, belies the balance of political forces at the time of the Second M orrill Act. To be sure, the Second M om ll A ct’s enactm ent largely resulted from fierce lobbying by the land-grant college presidents, an effort

205 Opinions o f the O ffice o f L eg a l C ounsel

obviously intended to obtain funds for these particular colleges and no others.30 Too, the college presidents were able to squelch Senator’s Hoar proposal for ex­ plicit language perm itting schools not receiving First Morrill Act funds to be given Second M orrill A ct appropriations. See W illiams, supra note 2, at 144. It is doubtful, however, that the college presidents had the political strength to obtain explicit language confining Second M orrill Act appropriations to schools receiving First M orrill Act funds. They faced powerful opposition from the Grange m ove­ ment, w hich had long “condemn[ed] the colleges for their inability to attract agri­ cultural students and vow[ed] to oppose the schools in every way,” W illiams, supra note 2, at 3; see Eddy, supra note 2, at 73; Ross, su pra note 2, at 79-80. The strength o f the Grange was reflected by the “G range Amendment” to the Second M orrill Act, which restricted application o f the appropriations more narrowly and explicitly than had the First M orrill Act. The college presidents were forced to include these restrictions if they w ere to obtain even the G range’s sullen acquies­ cence in the Second M orrill Act. It is doubtful that the bill would have passed had they not done so.31 Even with such acquiescence, the Grange maintained their ef­ forts to redirect federal funding aw ay from the existing land-grant colleges.32 There seems little doubt that the G range would have opposed vociferously (and probably successfully) any language that expressly confined Second Morrill Act appropriations to schools receiving the benefits o f the First Morrill Act.

10 A s one re p resen tativ e in the House com plained: I tell you, M r Speaker, that the only lo b b y 1 have seen at this session o f C ongress was the educa­ tional lobby, co m p o sed o f the presidents o f the ag ricu ltu ral institutions They have haunted the co rrid o rs o f this C apitol; they have sto o d sentinel at the d o o r o f the C om m ittee on Education, th ey h ave ev en in terru p ted the solemn delib eratio n s o f th at body by im prudent and im pudent co m m u n ic atio n s. . M y G od, if there is any eag ern ess in the w orld it is possessed by these gen tle m en w ho are p residents of these ag ricu ltu ral c o lle g e s .. . . T hey have buzzed in your ears, sir, and in yo u rs, and in the ears o f e v ery m em b er o f th is H ouse. It has been an organized, stro n g , co m b in ed lobby fo r the benefit o f the agricultural co lleges o f the country. 21 C ong . Rec 8 8 3 6 (1 8 9 0 ) (rem ark s of Rep. C aru th ) 11 Se e W illiam s, su p ra note 2, at 143-49; E d d y , su p ra note 2, at 101, 103; Ross, supra note 2, at 178; 26 Stat at 418. T he G ran g ers w ere chiefly c o n cern ed that the n ew appropriations not be diverted to classical languag es an d o th e r stu d ies that they did n o t co n sid er app ro p riate for an agricultural college See, e.g , W illiam s, su p ra note 2, at 147. T h e Grange h a d sim ilarly lim ited the achievem ents o f the land-grant college presidents o n ly three years earlier concerning the bill that b ecam e the H atch Act, w hen they successfully forced an am en d m en t, also kn o w n as the “G ran g e A m en d m en t,” that preserved for the states the option o f m aintaining ag ricu ltu ral ex p erim en t stations in d e p e n d en t from the land-grant colleges. T he land-grant c ol­ leges had d esired in the H atch A ct to bnng s u c h stations un d er th eir exclusive control S ee id. at 113-15, Ross, su p ra n o te 2, at 140. 32 Se e W illiam s, su p ra note 2, at 152 (“At its annual m eeting in 1891, the G range declared the land-grant c olleges to b e ‘p ractically w o rth le ss' and im p lo red C ongress to separate the agricultural departm ents from e xisting co lleg es, e stab lish in g new and purely agricultural in stitu tions around them ‘W e further ask ,' the G range ad d ed , ‘that all a p p ro p riatio n s now p a id to the c o m b in ed institutions . . be transferred to such sepa­ rate and d istin c t agricultural and m echanical c o lle g e s as m ay be established in the several states ’■’) (footnote o m itted ); E dm ond, su p ra note 2, at 33 (Yale C o lle g e, B row n U niversity, and D artm outh received land-grant d esignatio n fro m their resp ectiv e state legislatures d u ring the 1860s but lost it to agricultural colleges during the 1890s as a resu lt o f op p o sitio n from the sta le G range and agricultural societies who resented the form er s ch o o ls' p e rc eiv ed em p h asis on instruction in classical as o p p o sed to agricultural studies).

206 R econsideration o f P rior Opinion Concerning Land-G rant C olleges

Significantly, the land-grant college presidents themselves were not so certain that the Second M orrill Act appropriations could be confined to their institutions under the language of that Act as it was enacted. They were even fearful that the Second M orrill Act could actually be interpreted to deny them such funds alto­ gether. Thus, barely two months after the enactment of the Second Morrill Act:

Atherton and Alvord [two influential land-grant college presi­ dents who had each played a major role in lobbying for the Second Morrill Act] were extremely anxious about the potential for rogue initiatives— especially from the Grange— to exclude land-grant colleges from receiving the benefits of the act or to qualify non- land-grant colleges for the new funds. Thus, they prepared a “B rief of Points” for A ssistant Interior Secretary Chandler and distributed it as appropriate to various land-grant colleges. In their document, Atherton and Alvord interpreted the second Morrill Act as a “supplement to the Act of 1862.” They were careful to note that the latter act applied only to institutions designated by their state legis­ latures to receive funds from the original act. Anticipating argu­ ments to the contrary, Atherton and Alvord emphasized that the broad nature of the original act, and the power it gave to the various states to develop their land-grant colleges according to the demands o f local conditions, had given rise to a disparate class of institutions . . . . They further emphasized that questions of institutional pur­ pose and organization . . . had already been settled in the various states “and cannot now be raised to debar them from the benefits o f the Act of 1890.”

Williams, su pra note 2, at 151-52 & n.75. It seems likely that the land-grant col­ lege presidents would have obtained explicit language in their favor two months earlier if they could have done so. Thus, the absence of such language from the Second M orrill Act does not appear to be mere oversight. Rather, it appears to reflect a stalemate between the college presidents and the Grange. In these circum ­ stances, we do not find the single (somewhat contradictory) statement by Senator Blair to be controlling of our interpretation of the Second Morrill Act. In sum, although the statute (including its legislative history) is not unam bigu­ ous, we conclude that the balance of the evidence supports the view that the Sec­ ond Morrill A ct’s appropriations may be given to colleges regardless o f whether they are endowed under the First Morrill Act. Accordingly, West Virginia could validly designate State College to receive appropriations under the Second Morrill Act.

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V. CONCLUSIONS

W e conclude that W est Virginia could validly designate State College as a re­ cipient o f Second Morrill Act appropriations without designating it to receive First Morrill Act funds. We further conclude that, regardless o f State College’s eligibil­ ity for Second M orrill Act appropriations, it is not among those colleges eligible for benefits under the 1890 derivative statutes.33

W A LTER DELLINGER A ssista n t A ttorney G eneral Office o f L egal Counsel

31 A g ricu ltu re m ay w ish to request that C o n g ress refer specifically to the 1890 colleges in its future ap- propnacions p u rsu a n t to the 1890 derivative statu tes. T h is step w ould supersede any arguably b roader lan­ guage in the 1890 deriv ativ e statu tes them selves, and w ould thereby rem ove all doubt about the intended b e n efic ian e s o f these statu tes S ee supra text acco m p an y in g note 12