b'March 21, 1977\n\n77-12\n\nMEMORANDUM OPINION FOR THE\nCOUNCIL OF ECONOMIC ADVISERS\nAppointment of Deputy Director of the Council on\nInternational Economic Policy (CIEP) by Its\nExecutive Director\n\nThis is in response to your memorandum in which you inquire\nwhether the former Executive Director of the Council on International\nEconomic Policy (CIEP), was authorized to appoint Mr. A as the\n\xe2\x80\x9c Deputy D irector\xe2\x80\x9d 1 of CIEP, and, if not, by what means may someone\nbe named to carry on C IE P \xe2\x80\x99s function absent the appointment of an\nExecutive Director of CIEP by the President, by and with the advice\nand consent of the Senate.\nPursuant to 22 U.S.C. \xc2\xa7 2847(b) (Supp. V 1975), the Executive D irec\xc2\xad\ntor o f C IE P has the power to appoint such staff personnel as he deems\nnecessary with the approval o f the Council. Thus, the Executive Direc\xc2\xad\ntor had the power to appoint Mr. A as the Deputy Executive Director\nof C IEP provided he had secured the approval of the Council.\nAs wfe understand your letter you are, however, less concerned with\nMr. A \xe2\x80\x99s status as Deputy Executive D irector than with his authority to\nact as Executive Director o f CIEP and perform the functions of that\nofficial. The C IE P statute does not provide for a Deputy Executive\nD irector and is silent on the question as to who is to perform the duties\no f the office of Executive D irector in the event of a vacancy. Hence,\nassuming that Mr. A was validly appointed Deputy Executive Director,\nthat fact alone would not enable him to perform those functions that\nare exclusively vested in the Executive D irector of CIEP.\nWe are aware of the memorandum dated January 11, 1977, to the\nHeads of Departments and Agencies from Mr. James E. Connor, Secre\xc2\xad\ntary to the Cabinet and Staff Secretary to President Ford, entitled\n\xe2\x80\x9cResignation of Presidential Appointees,\xe2\x80\x9d par. 4 of which provides:\n1 W hile yo u r m em orandum uses th e term \xe2\x80\x9cD e p u ty D irector,\xe2\x80\x9d w e assume that M r. A\nw as actually appointed D eputy E xecutive D irector.\n\n28\n\n\x0cIn order to make certain there is no interruption in responsibility\nafter January 20, President Ford\xe2\x80\x99s transition officer for each de\xc2\xad\npartment and agency and the President-elect\xe2\x80\x99s transition officer for\nthat department and agency should reach agreement on the desig\xc2\xad\nnation of a Ford-appointed subordinate officer who would have\nthe power and responsibility of acting secretary until the appropri\xc2\xad\nate officer of the new administration is confirmed and sworn in.\nIt does not appear from the papers submitted to us whether Mr. A was\ndesignated pursuant to that authority to act as Executive Director\npending the appointment of such officer by and with the advice and\nconsent of the Senate. Moreover, it is questionable whether having\nbeen appointed during the very last days of the Ford Administration,\nMr. A would be a \xe2\x80\x9cFord-appointed subordinate officer\xe2\x80\x9d within the\nscope of that memorandum.\nHowever, if Mr. A was appointed Deputy Executive Director with\nthe approval of the Council and if he was designated Acting Executive\nDirector in accordance with the provisions of the January 11, 1977,\nmemorandum, it can be said that this designation was made at the\ndirection of President Ford and that it was ratified by President Carter.\nThis gives rise, to the problem of whether President Ford had the\nauthority to make an ad interim designation to a position that requires\nSenate confirmation. The U.S. District Court for the District of Colum\xc2\xad\nbia in Williams v. Phillips, 360 F. Supp. 1363 (D.D.C., 1973), held that\nsuch an \xe2\x80\x9cappointment\xe2\x80\x9d cannot be made without statutory authoritzation. In its ruling on the Government\xe2\x80\x99s application for a stay of the\ndecision, the Court of Appeals indicated that at best the President\nwould have an implied power \xe2\x80\x9cto appoint an acting director [of the\nOffice of Economic Opportunity] for a reasonable period before submit\xc2\xad\nting the nomination of a new director to the Senate.\xe2\x80\x9d The Court of\nAppeals suggested that the 30-day period of the Vacancy Act (5 U.S.C.\n\xc2\xa7 3348)2 was an indication of what constituted a reasonable period.\nWilliams v. Phillips, 482 F. 2d 669, 670-671 (D.C. Cir. 1973). Here the\nvacancy has lasted for nearly twice that period.\nAnother difficulty here is presented by Mr. A \xe2\x80\x99s subsequent appoint\xc2\xad\nment as Chairman of the Council of Economic Advisers. As such, Mr.\nA is an ex officio member of the CIEP Council. This raises the question\nwhether Mr. A \xe2\x80\x99s position as a member of the C IEP Council and\nDeputy Executive Director and Acting Executive Director of C IE P\nare compatible offices.\nEarlier prohibitions against dual officeholding were repealed in 1964\nand replaced by legislation that, with a few exceptions, merely prohibits\nthe dual compensation of persons holding two offices. 5 U.S.C. \xc2\xa7 5533.\nThat legislation, however, is not to be read as also overcoming the\nbasic legal doctrine prohibiting the holding of incompatible offices. See,\n\xe2\x80\x99 T h e V acancy A c t does not apply to C IE P because that A c t is limited to \xe2\x80\x9c E xecutive\ndepartm ents\xe2\x80\x9d and C IE P is not an executive departm ent. 5 U.S.C. \xc2\xa7 101.\n\n29\n\n\x0cCrossthwaite v. United States, 30 C. Cl. 300, 308 (1895), rev\xe2\x80\x99d on other\ngrounds, 168 U.S. 375; Lopez v. Martinelli, 59 F. 2d 176, 178 (1st Cir.\n1932); 22 Op. A.G. 237, 238 (1898); Throop, Public Officers (1892), 3738. Perhaps the most important public policy consideration in this area\nis the principle that no public official should be a judge in his own\ncause, or review in one capacity actions that he has taken in another\ncapacity.\nAs a member of the C IE P Council, Mr. A would be in a position in\nwhich he would have a role in the Council\xe2\x80\x99s review or approval of\ndecisions, personnel actions, and other management functions made by\nhim as Acting Executive D irector of CIEP. 22 U.S.C. \xc2\xa7 2847 (Supp. V\n1975). Hence, it might be said that Mr. A should be regarded as having\nvacated by operation of law his position as Acting Executive Director\no f C IEP, by virtue of his appointment as Chairman of the Council of\nEconomic -Advisers.\nOn the basis of the above analysis, it is our opinion:\n(1) That the President should designate a person, other than Mr.\nA, to be Acting Executive Director, CIEP. If the designee is not\nchosen from the CIEP staff, it would be desirable that the designee\n(a) be a person who has been appointed to some other position by\nand with the advice and consent o f the Senate, and (b) not be a\nmember of the CIEP Council.\n(2) That the President should nominate a permanent Executive\nD irector as soon as possible.\nJohn M . H\n\narm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n30\n\n\x0c'


b'Reconsideration of Prior Opinion\nConcerning Land-Grant Colleges\nA 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\nm 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\nth e S e c o n d M o m ll A c t o f 1890.\nR 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 \xe2\x80\x99s 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\nA 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\na 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 .\n\nD e c e m b e r 2 3 , 1993\nM 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\nD e p a r t m e n t o f A g r ic u l t u r e\n\nThis responds to your request that this Office reconsider our opinion that W est\nV irginia may designate W est Virginia State College (\xe2\x80\x9cState College\xe2\x80\x9d) as the bene\xc2\xad\nficiary of appropriated funds under the Second M orrill Act, ch. 841, 26 Stat. 417\n(1890) (codified as am ended at 7 U .S.C. \xc2\xa7\xc2\xa7 321-326, 328) (\xe2\x80\x9cSecond Morrill Act\xe2\x80\x9d),\nand that, upon such designation, State College would become eligible to receive\nappropriated funds for agricultural research and extension under 7 U.S.C. \xc2\xa7\xc2\xa7 3221,\n3222, and 3223.1\nA fter reviewing the matter once more, we hereby withdraw our original opinion\nin favor of the revised views expressed in this memorandum. As explained below,\nwe adhere to our earlier conclusion that W est Virginia may validly designate State\nCollege as the beneficiary of appropriated funds under the Second Morrill Act.\nW e reverse, however, our original conclusion that W est Virginia\xe2\x80\x99s designation of\nState College as a Second Morrill Act beneficiary made that school eligible for\nfunds appropriated pursuant to 7 U .S.C . \xc2\xa7\xc2\xa7 3221, 3222, 3223 and similar statutes.\n(Follow ing the usage o f Agriculture, we shall refer to these statutes collectively as\nthe \xe2\x80\x9c 1890 derivative statutes \xe2\x80\x9d) Rather, we conclude that State College is not eli\xc2\xad\ngible for funds under the 1890 derivative statutes.\nI.\n\nAN OVERVIEW OF THE LEGAL HISTORY\nOF THE LAND-GRANT COLLEGE SYSTEM\nA know ledge o f the legal history of the land-grant college system is essential to\ninterpreting the Second Morrill A ct and the 1890 derivative statutes. In Subpart A\nbelow, we discuss the following four cornerstones of the statutory structure:\n1\nS 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\nA 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\nC ox, Principal D eputy A ssistant Attorney G eneral, O ffice o f Legal C ounsel, from Jam es M ichael Kelly,\nA ssociate G en eral C ounsel, Department o f A griculture (O ct. 23, 1992) ("R equest for R econsideration\xe2\x80\x9d ).\nH eretnafter, references to \xe2\x80\x9cA griculture \xe2\x80\x98 m ean the D epartm ent o f A griculture\n\n184\n\n\x0cReconsideration o f P rior Opinion C oncerning L and-G rant C olleges\n\nTable I\nStatute\n\nEnactment\n\nMain Object of the Legislation\n\nFirst Morrill Act\n\n1862\n\nGrants states public lands to sell for endow\xc2\xad\nment of agricultural & mechanical colleges\n\nHatch Act\n\n1887\n\nAuthorizes funds for agricultural research at\nexperiment stations established at land-grant\ncolleges or independently by a state\n\nSecond Morrill\nAct\n\n1890\n\nAuthorizes supplemental operating funds for\nland-grant colleges\n\nSmith-Lever Act\n\n1914\n\nAuthorizes funds for agricultural extension at\nland-grant colleges\n\nIn Subpart B below, we discuss the evolution of the land-grant college system in\nWest Virginia and elsewhere prior to the enactment of the 1890 derivative statutes.\nIn Subpart C below, we discuss the 1890 derivative statutes.\n\nA.\nThe First M orrill Act. The land-grant college system began in 1862 with the\nFirst Morrill Act, ch. 130, 12 Stat. 503 (1862) (\xe2\x80\x9cFirst Morrill Act\xe2\x80\x9d)-2 That statute\nprovided the states with grants of public land or equivalent land scrip. Id. \xc2\xa7 1, 12\nStat. at 503. The states that chose to \xe2\x80\x9ctake and claim the benefit\xe2\x80\x9d o f the First M or\xc2\xad\nrill Act were required to invest the funds derived from the sale o f the land or land\nscrip in such fashion that the principal would \xe2\x80\x9cremain forever undiminished.\xe2\x80\x9d Id.\n\xc2\xa7 4, 12 Stat. at 504. The states were further required to devote the interest gener\xc2\xad\nated by such funds exclusively to the \xe2\x80\x9cendowment, support, and maintenance of at\nleast one college where the leading object shall be . . . to teach such branches of\n\n2\nFor accounts o f the history o f the college land-grant system , see Joseph B Edm ond, The M agnificent\nC 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,\nThe 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\nLand-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\nM ovem ent in the F orm ative Stage (1942) For a recent study o f the origins o f the college land-grant system ,\nsee 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\nLand-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(N.D. Ala 1991) (outlining origins and developm ent o f college land-grant system w ith special reference to\nA 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\nF Supp 1523, 1543-50 (N D. M iss 1987) (providing less detailed history o f land-grant system with special\nreference to M ississippi), a ff\xe2\x80\x99d, 914 F 2d 676 (5th C ir 1990) (en banc), va ca ted sub nom . U nited S tates v\nFordice, 505 U S 717 (1992)\n\n185\n\n\x0cO pinions o f the O ffice o f L egal Counsel\n\nlearning as are related to agriculture and the mechanic arts.\xe2\x80\x9d Id. The states were\nrequired to express acceptance of the land grant (or land scrip) through their legis\xc2\xad\nlatures.3 Once a state had accepted, it would still lose its benefit unless it provided\n\xe2\x80\x9cwithin five years . . . not less than one college\xe2\x80\x9d o f the prescribed kind. Id. \xc2\xa7 5, 12\nStat. at 504.\nThe H atch Act. The A ct of M ar. 2, 1887, ch. 314, 24 Stat. 440 (codified as\namended at 7 U.S.C. \xc2\xa7\xc2\xa7 361a-390d) authorized appropriations for agricultural re\xc2\xad\nsearch at experim ent stations under the direction either o f a college \xe2\x80\x9cestablished, or\nwhich may hereafter be established, in accordance with the provisions of [the First\nMorrill A ct]\xe2\x80\x9d or an independent station established by a state. See id. \xc2\xa7\xc2\xa7 1 ,2 , 8,\n24 Stat. at 440-42. Unlike the First M orrill Act, the Hatch Act provided for pay\xc2\xad\nments by the federal government directly to the beneficiary institutions, although\nthe appropriations were still said to be \xe2\x80\x9cto each State.\xe2\x80\x9d Id. \xc2\xa7 5, 24 Stat. at 441. In\nstates having tw o colleges established under the First Morrill Act, the funds were\nto be divided equally unless the state\xe2\x80\x99s legislature directed otherwise. See id. \xc2\xa7 1,\n24 Stat. at 440.\nThe S econ d M orrill A ct. The Second M orrill Act provided an annual appropri\xc2\xad\nation o f funds \xe2\x80\x9cto each State .. . for the more complete endowment and m ainten\xc2\xad\nance o f colleges for the benefit o f agriculture and the mechanic arts now estab\xc2\xad\nlished, or which may be hereafter established, in accordance with [the provisions of\nthe First M orrill A ct].\xe2\x80\x9d \xc2\xa7 1, 26 Stat. at 417-18. The funds so appropriated were to\nbe paid to the state treasurer \xe2\x80\x9cdesignated by the laws of such State . . . to receive\nthe sam e\xe2\x80\x9d and then \xe2\x80\x9cimmediately [paid] over . . . to the treasurers of the respective\ncolleges . . . entitled to receive the sam e.\xe2\x80\x9d Id. \xc2\xa7 2, 26 Stat. at 418. The use of the\nfunds was restricted to \xe2\x80\x9cinstruction in agriculture, the mechanic arts, the English\nlanguage and the various branches o f mathematical, physical, natural and economic\nscience, with special reference to their applications in the industries of life, and to\nthe facilities for such instruction.\xe2\x80\x9d Id. \xc2\xa7 1, 26 Stat. at 418.\nThe Second Morrill A ct also forbade paym ent of funds appropriated under the\nAct to colleges \xe2\x80\x9cwhere a distinction of race or color is made in the admission of\nstudents.\xe2\x80\x9d Id. This prohibition, however, was qualified by a proviso deeming the\nestablishm ent o f a separate college for each race to be sufficient compliance if the\nfunds were divided \xe2\x80\x9cequitably\xe2\x80\x9d betw een the tw o schools. Id. A second proviso\ndescribed the m echanics o f \xe2\x80\x9cseparate but equal\xe2\x80\x9d compliance in greater detail:\nThat in any State in which there has been one college established\nin pursuance o f the [First M orrill Act], and also in which an educa\xc2\xad\ntional institution o f like character has been established, or may be\nhereafter established, and is now aided by such State from its own\n1 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,\n12 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\na dm issio n to the U nion A ct o f Ju ly 23, 1866, ch 209, 14 Stat. 208.\n\n186\n\n\x0cReconsideration o f Prior O pinion C oncerning Land-G rant C olleges\n\nrevenue, for the education of colored students in agriculture and the\nmechanic arts . . . or whether or not it has received money hereto\xc2\xad\nfore under the act to which this act is an amendment, the legislature\nof such State may propose and report to the Secretary of the Interior\na just and equitable division of the fund to be received under this act\nbetween one college for white students and one institution for col\xc2\xad\nored students . . . which shall be divided into two parts and paid ac\xc2\xad\ncordingly, and thereupon such institution for colored students shall\nbe entitled to the benefits of this act and subject to its provisions, as\nmuch as it would have been if it had been included under the act of\neighteen hundred and sixty-two, and the fulfillment of the foregoing\nprovisions shall be taken as a compliance with the provision in ref\xc2\xad\nerence to separate colleges for white and colored students.\nId.\nThe Sm ith-Lever Act. The Act of May 8, 1914, ch. 79, 38 Stat. 372 (codified as\namended at 7 U.S.C. \xc2\xa7\xc2\xa7 341-349) established and funded agricultural extension\nservices \xe2\x80\x9cin connection with the college or colleges in each State now receiving, or\nwhich may hereafter receive, the benefits of the [First Morrill Act] . . . and the\n[Second Morrill Act].\xe2\x80\x9d Id. \xc2\xa7 1, 38 Stat. at 372-73. As with the Second M orrill\nAct, the appropriations were payable to the States for disbursement. Id. \xc2\xa7 4, 38\nStat. at 374. States having more than one eligible college were permitted to divide\nthe appropriation as the legislature saw fit. Id. \xc2\xa7 I, 38 Stat. at 373.\n\nB.\nIn 1863, the W est Virginia Legislature assented to the provisions of the First\nMorrill Act. 1863 W. Va. Acts ch. 56. After passage of the Second Morrill Act,\nthe W est Virginia Legislature assented to its terms, designated W est Virginia U ni\xc2\xad\nversity as the beneficiary of the funds available under the First Morrill Act, and\nestablished State College as the beneficiary o f a portion of the funds for the in\xc2\xad\nstruction of \xe2\x80\x9ccolored\xe2\x80\x9d students. 1891 W. Va. Acts ch. 65, \xc2\xa7 l.4 W est Virginia was\namong a group o f seventeen states that ultimately complied with the Second M or\xc2\xad\nrill A ct\xe2\x80\x99s eligibility requirements by establishing a racially segregated land-grant\ncollege for black students.5 The class of institutions thus established or designated\nby these seventeen states are commonly known as the 1890 colleges. The colleges\nin these same\' states that restricted enrollment to white students, as well as the\n4 Slate C ollege w as chartered as \xe2\x80\x9cThe West V irginia C olored Institute." A m erican U niversities and C olleges 1822 (14th ed. 1992) In 1915, its nam e was changed to \xe2\x80\x9cT he W est V irginia C ollegiate Institute \xe2\x80\x9d Id\nat 1823. In 1929, State C ollege w as given us present name. Id\n5 T he other sixteen states w ere A labam a, G eorgia, Florida, N orth C arolina, South C arolina, V irginia,\nK entucky, T ennessee, M ississippi, Louisiana, A rkansas, O klahom a, T exas, M issouri, M aryland, and D e la \xc2\xad\nw are See K m ght, 787 F. Supp at 1168, Eddy, supra note 2, a t 257-59.\n\n187\n\n\x0cO pinions o f th e Office o f L eg a l C ounsel\n\nnon-segregated land-grant colleges in all other states, are commonly known as the\n1862 colleges. S ee Knight, 787 F. Supp. at 1145 n.44, 1167-68.\nIn m ost states, there is only a single land-grant college, which receives all of the\nfunds distributed to the state under the four statutes discussed in the preceding sub\xc2\xad\npart. Even in states having both an 1862 and an 1890 college, the experiment sta\xc2\xad\ntion and extension service funded under the Hatch and Smith-Lever Acts,\nrespectively, are alm ost uniformly located at the 1862 college, which consequently\nreceives all of the appropriations provided pursuant to those two Acts. See id. at\n1167-68.6 Furtherm ore, according to Agriculture, no 1890 college receives First\nMorrill Act funds.7 Consequently, w ith respect to the four statutes outlined above,\nthe only funds that the 1890 colleges receive are a share o f the Second Morrill Act\nappropriation.8 Thus, except as altered by the 1890 derivative statutes, see infra\nPart I.C, the pattern of unequal distribution o f federal funds (and o f state funds as\nwell) has rem ained little changed from the inception of the 1890 colleges.9 In the\nmid-1950s, the Suprem e Court held that the system of racially \xe2\x80\x9cseparate but equal\xe2\x80\x9d\nstate education (including higher education) was unconstitutional.10 The end of\nde ju r e racial segregation raised the question whether there was a necessity for the\ncontinued participation of the 1890 colleges in the land-grant system. See Eddy,\nsupra note 2, at 265-66 (1957). T hus, West Virginia complied with the Supreme\nC ourt\xe2\x80\x99s decisions by integrating both its 1862 college, W est Virginia University,\nand its 1890 college, State College, and by consolidating the land-grant function in\nW est V irginia University. State C ollege was removed from the land-grant system.\nSee 1957 W. Va. Acts ch. 72, John C. Harlan, H istory o f West Virginia State C ol\xc2\xad\nlege 1 8 9 1 -1 9 6 5 , at 101-04 (1968). The other sixteen states, however, did not fol\xc2\xad\n6 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\n1890 co lleg es. See id a t 1168\n7 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\nM orrill A ct) has reco rd s from w hich to ascertain the s ta te s \xe2\x80\x99 distribution o f First M o m ll Act funds. But\nA griculture has in d icated to us that it has no re a so n to believe that any 1890 college receives such funds\n8 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\n1991 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\ngrant that the 1890 college received ranged from a low o f 6% ($3,125) in M issouri to a high o f 50%\n($ 25,000 ) in F lorida and South Carolina T h e rem ainder o f the Second M ornll Act appropriations in such\nstates 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\nentire S eco n d M orrill A ct appropriation\n9 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\na 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\n(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\nthe 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 )\n10 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\n(1955) Prior to B ro w n , in cases all involving \xe2\x80\x9c the graduate school level, inequality w as found in that spe\xc2\xad\ncific 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\xc2\xad\ntions *\xe2\x80\x99 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\nB 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\nS 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 \xe2\x80\x9cseparate but\ne 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\nin B ro w n th at the S u p rem e C o u rt held, for th e first time, \xe2\x80\x98that in the field o f public education the doctrine of\n\xe2\x80\x98sep a ra te b u t e q u a l\xe2\x80\x99 has no p la c e.\xe2\x80\x9d Id at 495.\n\n188\n\n\x0cR econsideration o f P rior Opinion C oncerning L and-G rant Colleges\n\nlow West V irginia\xe2\x80\x99s approach. Although they formally ended discrimination on\nthe basis of race or color in their land-grant college system, they nonetheless re\xc2\xad\ntained a dual system of historically white 1862 colleges and historically black 1890\ncolleges. See Knight, 787 F. Supp. at 1167-68. Furthermore, as indicated above,\nthese states all continued their historical practice of allocating almost all land-grant\nfunding to their 1862 college rather than to their 1890 college."\nC.\nBeginning in the 1970s, Congress enacted a series of statutes \xe2\x80\x94 the 1890 de\xc2\xad\nrivative statutes \xe2\x80\x94 that in terms authorized appropriations to be distributed directly\nby Agriculture to colleges eligible to receive funds under the Second Morrill Act.\nThese were:\n* Agriculture Environmental and Consumer Protection Appro\xc2\xad\npriation Act, 1972, Pub. L. No. 92-73, 85 Stat. 183, 186 (1971)\n(appropriating \xe2\x80\x9cpayments for extension work by the colleges re\xc2\xad\nceiving the benefits of the second M orrill Act\xe2\x80\x9d);\n* National Agricultural Research, Extension, and Teaching Pol\xc2\xad\nicy Act of 1977 (\xe2\x80\x9cNARET\xe2\x80\x9d), Pub. L. No. 95-113, \xc2\xa7 1444, 91 Stat.\n913, 1007 (codified as amended at 7 U.S.C. \xc2\xa7 3221) (authorizing\nappropriation of payments for \xe2\x80\x9cextension at colleges eligible to re\xc2\xad\nceive funds under the Act of August 30, 1890 (26 Stat. 417-419, as\namended; 7 U.S.C. 321-326 and 328)\xe2\x80\x9d);\n* NARET \xc2\xa7 1445, 91 Stat. at 1009 (codified as amended at 7\nU.S.C. \xc2\xa7 3222) (authorizing appropriation of payments for\n\xe2\x80\x9cagricultural research at colleges eligible to receive funds under the\nAct of August 30, 1890 (26 Stat. 417-419, as amended; 7 U.S.C.\n321-326 and 328)\xe2\x80\x9d);\n* Agriculture and Food Act of 1981, Pub L. No. 97-98, \xc2\xa7 1433,\n95 Stat. 1213, 1312 (codified as amended at 7 U.S.C. \xc2\xa7 3223)\n(authorization, now expired, for grants for upgrading research\nequipment and facilities at the \xe2\x80\x9cinstitutions eligible to receive funds\nunder the Act of August 30, 1890(7 U.S.C. 321 e tse q .)\xe2\x80\x9d);\n* Food Security Act of 1985, Pub. L. No. 99-198, \xc2\xa7 1416, 99\nStat. 1354, 1549 (codified as amended at 7 U.S.C. \xc2\xa7 3224)\n(authorization, now expired, for grants for upgrading extension fa\xc2\xad\n11\nAn issue in K night was w hether A lab am a\'s continued practice o f favoring its 1862 land-grant college m\nthe distribution o f federal funds was a vestige o f de jure racial segregation. The court concluded that it was\nnot Id. ai 1168, 1171-72\n\n189\n\n\x0cO pinions o f th e O ffice o f L egal C ounsel\n\ncilities at \xe2\x80\x9cinstitutions eligible to receive funds under the Act of\nA ugust 30, 1890 (26 Stat. 417, chapter 841; 7 U.S.C. 321 et seq.)\xe2\x80\x9d);\n*\nFood, Agriculture, Conservation, and Trade Act o f 1990\n(\xe2\x80\x9cFA C T A ct\xe2\x80\x9d), Pub. L. No. 101-624, \xc2\xa7 1612(a), 104 Stat. 3359,\n3721 (codified as amended at 7 U.S.C. \xc2\xa7 3222a) (authorizing\ngrants for agricultural research \xe2\x80\x9cat colleges eligible to receive funds\nunder the Act o f August 30, 1890 (7 U.S.C. 321 et seq.)\xe2\x80\x9d);\n*\nFA CT Act \xc2\xa7 1612(b), 104 Stat. at 3722 (codified as amended at\n7 U.S.C. \xc2\xa7 3222b) (authorizing grants to upgrade agricultural and\nfood sciences facilities and equipment \xe2\x80\x9cto assist the institutions eli\xc2\xad\ngible to receive funds under the Act of A ugust 30, 1890\xe2\x80\x9d);\n*\nFA CT A ct \xc2\xa7 1612(c), 104 Stat. at 3723 (codified as amended at\n7 U.S.C. \xc2\xa7 3222c) (authorizing grants for national research and\ntraining centennial centers at colleges \xe2\x80\x9celigible to receive funds un\xc2\xad\nder the Act o f August 30, 1890 (7 U.S.C. 321 et seq.)\xe2\x80\x9d).\nAgriculture has construed these statutes as authorizing funding for the sole benefit\nof the 1890 colleges and has distributed the funds accordingly.\nThe A griculture, Rural Development, Food and Drug Administration, and Re\xc2\xad\nlated A gencies Appropriations Act, 1994, Pub. L. No. 103-111, 107 Stat. 1046,\n(\xe2\x80\x9cFY 94 A ppropriation\xe2\x80\x9d), appropriates for fiscal year 1994 the funds authorized by\nthe 1890 derivative statutes. This law makes the following appropriations pursuant\nto the authorization statutes under consideration:\n\nTable 2\nDollar Amount\nAuthorization\nDescription of Recipients\n_____________________ Statute_________________ in FY 94 Appropriation\n$28,157,000\n\nN A RET \xc2\xa7 1445\n(7 U.S.C. \xc2\xa7 3222)\n\n"for p aym en ts to the J890\nlan d-grant colleges \xe2\x80\x9d\n\n$7,901,000\n\nFA CT Act \xc2\xa7 1612(b)\n(7 U.S.C. \xc2\xa7 3222b)\n\n\xe2\x80\x9cpa ym en ts to upgrade 1890\nlan d-grant college research\na n d extension facilities \xe2\x80\x9d\n\n$25,472,000\n\nNARET \xc2\xa7 1444\n(7 U.S.C. \xc2\xa7 3221)\n\n"paym ents f o r extension work\nby the co lleg es receiving the\nbenefits o f the seco n d M orrill\nA c t\xe2\x80\x9d\n\n190\n\n\x0cReconsideration o f P rior Opinion C oncerning L and-G rant C olleges\n\nSee FY 94 Appropriation, 107 Stat. at 1051, 1053.\n\nThe first two appropriations listed in Table 2 limit the beneficiaries to the 1890\ncolleges. Because the FY 94 Appropriation is Congress\xe2\x80\x99s most recent enactment,\nits express narrowing of the beneficiary class supersedes any arguably broader lan\xc2\xad\nguage in the 1890 derivative statutes that authorized the appropriations. S ee Gen\xc2\xad\neral Accounting Office, P rinciples o f F ederal A ppropriation s L aw 2-35 (2d ed.\n1991) (a statutory authorization of appropriations is a directive from Congress to\nitself that Congress is free to alter in subsequent legislation actually appropriating\nthe funds in question). Hence, none o f the 1862 colleges could be eligible for\nthose funds, regardless o f our interpretation o f the authorization contained in the\n1890 derivative statutes.12\nII. ISSUES F O R R E C O N S ID E R A T IO N\nIn 1991, W est Virginia enacted a law renewing its assent to the provisions of\nthe Second M orrill Act and designating State College as the sole beneficiary of\nfederal appropriations available under that Act. 1991 W. Va. Acts ch. 6 0 .13 As\ndiscussed above, State College was formerly an 1890 college. Its status as a landgrant college was withdrawn in 1957 as part of West V irginia\xe2\x80\x99s effort to desegre\xc2\xad\ngate its higher education system. Thus, the enactment in 1991 represents an at\xc2\xad\ntempt to restore State College\xe2\x80\x99s status after a hiatus of thirty-four years.\nBy current standards, the annual appropriation of $50,000 available to each\nstate under the Second Morrill Act is not substantial. Request for Reconsideration,\nApp. at 8-34. Significantly more funding is available, however, under the 1890\nderivative statutes. West Virginia seeks funding for State College under both the\nSecond Morrill Act and the 1890 derivative statutes.14\nAgriculture contends that State College is not eligible for funding under either\nthe Second Morrill Act or the 1890 derivative statutes.13 Agriculture maintains\nthat an institution may not receive Second Morrill Act appropriations unless it also\nreceives funds under the First Morrill Act. Because W est Virginia has not desig\xc2\xad\nnated State College to receive funds under the First Morrill Act, (and State College\ndoes not in fact receive funds under that Act), Agriculture concludes that State\nCollege may not be designated to receive appropriations under the Second Morrill\nAct.\n\n\'\xe2\x96\xa0 T he authorizations for appropriations contained in 7 U S C. Jj\xc2\xa7 3223 and 3224 have expired, and those\ncontained in 7 U S C\n3222a and 3222c w ere not funded in the FY 94 A ppropriation\nn 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\nnot questioned its validity on this ground\n1\nLetter for Edw ard M adigan, Secretary o f A griculture, D epartm ent o f A griculture, from G aston C aperton, G overnor o f W est V irginia at I, 2 (M ar 28, 1991)\n13\nT he recounting o f A g ricu ltu re\'s position that follow s is draw n from ihe R equest for R econsideration\nand from the M em orandum for O rville G B entley, A ssistant Secretary for Science and Education, D epart\xc2\xad\nm 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)\n\n191\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nAgriculture acknowledges that State College was founded as an 1890 college,\nwhich the racial segregation proviso to the Second Morrill Act exempts from any\nrequirem ent of receipt o f First M orrill Act funds. Nevertheless, Agriculture main\xc2\xad\ntains that because State College w as withdrawn from the land-grant system, the\nonly way to restore it is by the usual route requiring receipt of benefits under the\nFirst M orrill Act. Agriculture argues that the exception to that requirement \xe2\x80\x94 the\nracial segregation proviso \xe2\x80\x94 is unconstitutional, and hence, no longer available to\nW est V irginia.16\nConcerning State College\xe2\x80\x99s eligibility for funding under the 1890 derivative\nstatutes, A griculture contends that if State College fails to qualify for appropria\xc2\xad\ntions under the Second Morrill Act, it may not take advantage of the 1890 deriva\xc2\xad\ntive statutes, which condition funding upon an institution\xe2\x80\x99s eligibility for\nappropriations under the Second M orrill Act. In addition, Agriculture denies that\nState College could qualify for funding under the 1890 derivative statutes even if it\nwere eligible to receive appropriations under the Second Morrill Act. It notes that\nthe class of colleges eligible for Second Morrill Act appropriations includes all the\n1862 colleges that receive appropriations under the First and Second Morrill Acts.\nBut, A griculture contends, Congress did not intend to benefit every such school.\nRather, C ongress intended to benefit only a specific group of sixteen historically\nblack colleges in the land-grant system at the time that the 1890 derivative statutes\nwere enacted (and also the historically black Tuskegee University, which is not a\nland-grant college). Agriculture invokes legislative history on this point, which it\nurges must guide the interpretation of the statutory language. Thus, in A gricul\xc2\xad\nture\xe2\x80\x99s view, even assum ing that State College could now be designated to receive\nFirst M orrill Act funds, it nevertheless could not qualify for funding under the\n1890 derivative statutes, because it is not among the schools that Congress in\xc2\xad\ntended to benefit.\nThis O ffice\xe2\x80\x99s original opinion (superseded by this one) agreed with W est V ir\xc2\xad\nginia. W e concluded that a state m ay designate an institution for Second Morrill\nAct appropriations without designating it for First Morrill Act funds if the school\nmeets the educational requirements of the First Morrill Act and the non\xc2\xad\ndiscrim ination requirem ent of the Second M orrill Act. W e further concluded that\nthe plain language o f the 1890 derivative statutes could not be restricted by the\n\n16\nT h e p ro v iso is indeed unconstitutional S ee supra note 10 and accom panying text In reading the\nproviso 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\no 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\n(1987) (stan d ard for d e term in in g severability)\nS 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\n(\xe2\x80\x9cALD*\xe2\x80\x99) has ad v ised that \'\xe2\x80\x98redesignation\xe2\x80\x9d o f S ta te C ollege rem ains possible today under the Second M o m ll\nS ee M em orandum from\nAct, 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\nA 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\nM 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,\nhow 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\nfor 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\n\n192\n\n\x0cR econsideration o f P rior Opinion C oncerning L and-G rant C olleges\n\nlegislative history, and, thus, that West Virginia could qualify for such appropria\xc2\xad\ntions after having been designated to receive Second Morrill Act funds.\nAgriculture has now asked that we reconsider both of these conclusions. It ad\xc2\xad\nvances certain textual arguments concerning the Second M om ll Act to bolster its\nreading of that Act. With respect to the 1890 derivative statutes, Agriculture in\xc2\xad\nsists that we must avoid a result that is both absurd in itself and at odds with clear\nlegislative history. Agriculture emphasizes that a decision that State College may\nshare in funding under the 1890 derivative statutes carries potentially broad impli\xc2\xad\ncations. The language of these statutes seemingly encompasses a ll schools eligible\nto receive Second Morrill Act appropriations, including the 1862 institutions.\nThus, says Agriculture, \xe2\x80\x9c[i]f your opinion were adopted, a minimum of 74 institu\xc2\xad\ntions [i.e., all land-grant colleges and Tuskegee University] would become eligible\nfor the [funding] that is now distributed among 17 institutions [i.e., only the 1890\ncolleges and Tuskegee University].\xe2\x80\x9d Request for Reconsideration at 7 Obviously,\nthis outcome would considerably lessen the share of funds given to the 1890 col\xc2\xad\nleges. According to Agriculture, this outcome is absurd because the very purpose\nof the 1890 derivative statutes, as shown by the legislative history, was to remedy a\nhistorical inequity: the states that had maintained racially segregated systems had\ngiven almost all land-grant funding to their 1862 colleges while excluding the 1890\ncolleges from the federal bounty. Consequently, Agriculture concludes that the\n1890 derivative statutes must be read to authorize appropriations only for the bene\xc2\xad\nfit of the 1890 colleges.\n\nIII.\nSTATE COLLEGE\xe2\x80\x99S ELIGIBILITY FOR FUNDS\nUNDER THE 1890 DERIVATIVE STATUTES\nOn reconsideration, we conclude that the 1890 derivative statutes provide ap\xc2\xad\npropriations only for the benefit of the 1890 colleges. Furthermore, we find that\nState College is not among the intended beneficiaries. Because we think that State\nCollege\xe2\x80\x99s eligibility for appropriations under the Second M om ll A ct does not con\xc2\xad\ntrol its eligibility for appropriations under the 1890 derivative statutes, we leave\nconsideration of the Second Morrill Act to Part IV, infra.\n\nA.\nOur analysis of the 1890 derivative statutes is guided by a longstanding rule of\nconstruction very recently reiterated by a unanimous Supreme Court:\nOver and over we have stressed that \xe2\x80\x9c[i]n expounding a statute, we\nmust not be guided by a single sentence or mem ber of a sentence,\nbut look to the provisions of the whole law, and to its object and\n193\n\n\x0cOpinions o f th e O ffice o f L e g a l Counsel\n\npolicy.\xe2\x80\x9d U nited States v. H eirs o f B oisdore, 49 U.S. (8 How.) 113,\n122 (1849) (quoted in more than a dozen cases, m ost recently D ole\nv. S teelw orkers , 494 U.S. 26, 35 (1990)); see a lso King v. St. Vin\xc2\xad\nc e n t\xe2\x80\x99s H ospital, 502 U.S. 215,221 (1991). . . . Statutory construc\xc2\xad\ntion \xe2\x80\x9cis a holistic endeavor,\xe2\x80\x9d U nited Savings Assn. o f Texas v.\nT im bers o f In w ood Forest A ssociates, Ltd., 484 U.S. 365, 371\n(1988), and, at a minimum, m ust account for a statute\xe2\x80\x99s full text,\nlanguage as well as punctuation, structure, and subject matter.\nN ation al Bank o f Or. v. Independent Ins. A gents o f Am erica, Inc., 508 U.S. 439,\n\n455 (1993). All aspects o f a statute, including its title, may be consulted in order\nto determ ine the congressional intent. See id. (consulting title).\nIt is undisputed that, from the tim e of the Second Morrill A ct\xe2\x80\x99s enactment in\n1890 to this day, the colleges eligible to receive funds under that Act have included\nboth the 1862 colleges and the 1890 colleges. Indeed, as indicated above, the Sec\xc2\xad\nond M orrill Act was passed in large part for the specific benefit o f the 1862 col\xc2\xad\nleges. On their face, however, the 1890 derivative statutes fail to distinguish\nbetween the class o f colleges eligible for Second Morrill A ct funds, including both\nthe 1862 colleges and the 1890 colleges, and the more restricted class of 1890\ncolleges. For example, although N A R E T \xc2\xa7 1444 is entitled \xe2\x80\x9cExtension at 1890\nLand-G rant Colleges,\xe2\x80\x9d 91 Stat. at 1007, the body of \xc2\xa7 1444 creates a permanent\nauthorization for Congress \xe2\x80\x9cto . . . appropriate[] annually such sums as Congress\nmay determ ine necessary to support continuing agricultural and forestry extension\nat co lleg e s elig ib le to receive fu n d s under the [ the S econ d M o rrill A ct].\xe2\x80\x9d Id.\n(em phasis added). Similarly, NARET \xc2\xa7 1445 is entitled \xe2\x80\x9cAgricultural Research at\n1890 Land-G rant Colleges;\xe2\x80\x9d the substantive text of \xc2\xa7 1445, however, authorizes\nannual appropriations o f \xe2\x80\x9csuch sum s as Congress may determine necessary to sup\xc2\xad\nport continuing agricultural research at colleges eligible to receive fu n d s under the\n[S eco n d M o rrill A c t].\xe2\x80\x9d 91 Stat. at 1009 (em phasis added). Thus, were we to con\xc2\xad\nsider the substantive provisions of the 1890 derivative statutes alone, without ref\xc2\xad\nerence to the titles, the legislative history, the other portions of the statutory text, or\nthe structure and purpose of the overall statutory scheme for the land-grant col\xc2\xad\nleges, we would be forced to conclude that those provisions benefited 1862 and\n1890 colleges alike.\nSuch a conclusion would, however, be at odds with the unmistakable purpose of\nthe 1890 derivative statutes. That purpose is to rectify the historical imbalance of\nfunding between the 1862 and 1890 colleges \xe2\x80\x94 an imbalance that originated in\nracial segregation. The House R eport concerning \xc2\xa7 1444 o f NARET described its\npurpose as follows:\nThe comm ittee intends that the 1890 land-grant colleges . . . be\xc2\xad\ncom e partners in the D epartment\xe2\x80\x99s agricultural research effort in the\n194\n\n\x0cReconsideration o f P rior O pinion C oncerning L and-G rant C olleges\n\nfood and agricultural scie n c e s.. .. [T]he research capacity in the\nfood and agricultural sciences at the 1890\xe2\x80\x99s . . . is not as great as the\nagricultural research capacity of many o f the 1862 schools. How\xc2\xad\never, it must be emphasized that very few of the 1890 schools . . .\nreceive any state funding, and Federal funding for agricultural re\xc2\xad\nsearch, which has not been on a permanent basis but rather on a\ngrants basis, has only been available to the 1890\xe2\x80\x99s . . . since 1967.\nPermanent funding for agricultural research has been available to\nthe state agricultural experim ent stations of the 1862 institutions\nsince 1887.\nH.R. Rep. No. 95-348, at 122 (1977) (\xe2\x80\x9cHouse R eport\xe2\x80\x9d).\nDuring hearings concerning \xc2\xa7 1433 of the Agriculture and Food Act o f 1981,\nthe need for the bill was put as follows:\nThis Congress has been supporting agricultural research for a\nlong time. As far back as 1862, Congress set up the land grant col\xc2\xad\nlege system. Over the years, the institutions created under the 1862\nAct have been helped to build research programs which are the envy\nof the world.\nLater, in 1890, Congress passed a second Morrill Act which was\ndesigned specifically to support black land grant institutions. . . .\nThese institutions, which were originally created under the old\nseparate-but-equal doctrine, have had to make do with inadequate\nstate funding and little or no federal funding in the past for research,\nteaching and extension. Their achievements with limited resources\nhave been tremendous, but . . . there is a limit to the number of\nbricks a man can make without straw. The 17 institutions we are\ndealing with need help now to bring their food and agricultural re\xc2\xad\nsearch facilities up to acceptable levels.\nThe 1890 colleges need, simply, to catch up. That is what H.R.\n1309 is designed to help them do.\n1890 Land-G rant C olleges F acilities: H earings on H.R. 1309 B efore the Subcomm. on D epartm ent O perations, Research, and Foreign A griculture o f the\nH ouse Comm, on Agriculture, 97th Cong. 8-9 (1981) (\xe2\x80\x9cHouse H earing\xe2\x80\x9d ) (prepared\nstatement of Rep. de la Garza); see also id. at 13-17 (prepared statem ent o f Rep.\n\nFord) (contrasting historically \xe2\x80\x9cmeager funding\xe2\x80\x9d by the states and the federal gov\xc2\xad\nernment for the 1890 colleges with the \xe2\x80\x9croyal treatment\xe2\x80\x9d provided for the 1862\ncolleges, and asserting that H.R. 1309 would provide \xe2\x80\x98\xe2\x80\x9c catch-up\xe2\x80\x9d \xe2\x80\x99 funds to the\n1890 colleges \xe2\x80\x9cfor years o f past neglect\xe2\x80\x9d).\n195\n\n\x0cOpinions o f th e Office o f L e g a l C ounsel\n\nIn drafting the 1890 derivative statutes to benefit the 1890 colleges, however,\nCongress conflated two distinct classes: colleges eligible to receive Second M or\xc2\xad\nrill Act funds, and the 1890 colleges. Thus, with respect to NARET \xc2\xa7\xc2\xa7 1444 and\n1445, both the Conference and the House Reports use the description \xe2\x80\x9ccolleges\neligible to receive funds under the [Second M orrill A ct]\xe2\x80\x9d interchangeably with\n\xe2\x80\x9c 1890 institutions.\xe2\x80\x9d See, e.g., S. Conf. Rep. No. 95-418, at 225-28 (1977)\n(\xe2\x80\x9cConference R eport\xe2\x80\x9d); House R eport at 123-24. In fact, of course, the terms are\nnot interchangeable, because all o f the 1862 colleges, as well as the 1890 colleges,\nreceive Second M orrill A ct funds. Congress also understood the class o f 1890\ncolleges to consist wholly of sixteen identified, historically black schools. See,\ne.g., H.R. Rep. No. 97-151, at 3 (1981) (enum erating the sixteen 1890 colleges).17\nIt appears that Congress intended to fund only the sixteen identified 1890 col\xc2\xad\nleges, and mistakenly assumed that only they w ere eligible for Second Morrill Act\nfunds. The Conference and House Reports specifically contrast the 1890 colleges\nwith the 1862 colleges, thus showing that Congress understood the distinction be\xc2\xad\ntween the two classes, even though it supposed that only the former class was eli\xc2\xad\ngible for Second M orrill Act appropriations. S ee Conference Report at 225-27;\nHouse Report at 122. Thus, the legislative history suggests that NARET \xc2\xa7\xc2\xa7 1444\nand 1445 were intended to authorize appropriations only for the 1890 colleges.18\nReferences to unenacted materials evidencing C ongress\xe2\x80\x99s intent would not alone\nbe sufficient to control the enacted language o f N A RET \xc2\xa7\xc2\xa7 1444 and 1445, even if\nthose m aterials dem onstrated that th e statutory language Congress adopted derived\nfrom a m istake o f fact or law. See INS v. Chadha, 462 U.S. 919, 944-51 (1983)\n(holding that passage by House and Senate and presentment to President are pre\xc2\xad\n17 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\nnot 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\ntotal 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\nhistorically b lack in stitu tio n S e e K night, 787 F Supp at 1086-89, 1093\n18 C o n g re ss \xe2\x80\x99s assum ption, that only the 1 8 9 0 colleges receiv e the benefits of the Second M orrill Act, is\nw idely shared. See K night, 787 F. Supp at 1145 (finding b a se d on expert testim ony that \xe2\x80\x9c[tjhere is a popu\xc2\xad\nlar m isc o n ce p tio n th at the 1890 lan d grant c o lle g e s\n. got all the m oney authorized by [the Second M om ll\nA 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\xc2\xad\nlo 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\nas "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\xe2\x80\x9d),\na ff\xe2\x80\x99d, 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\n(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\nthat c o m m e n ts on H ouse d ra ft o f the provisions that ultim ately becam e \xc2\xa7\xc2\xa7 1444 and 1445 and show s that he\nshared 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,\nnotw 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\nSecond M o m ll A ct funds)\nT 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\ninstitutio n s estab lish ed under the Second M orrill Act, and they are called the \xe2\x80\x9c 1890 c o lle g e s /\xe2\x80\x99 w hich height\xc2\xad\nens 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\nH earing at 8-9 (p rep ared statem en t o f Rep. d e la G arza) (*\xe2\x80\x98[I]n 1890, C ongress passed a second M o rn ll Act\nw 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\nnote 9, at 323 ( \xe2\x80\x9c It is ironic . . that the Second M o m ll Act, fin ally passed in 1890 and still in effect a century\nlater, 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\nnow call the 11890 c o lleg es \xe2\x80\x99" ) (footnote o m itted)\n\n196\n\n\x0cReconsideration o f P rior Opinion C oncerning Land-G rant C olleges\n\nrequisites o f valid legislation); G ray v. U nited States, 76 F. Supp. 102, 104 (Ct. Cl.\n1948) (holding that courts \xe2\x80\x9chave no power to, in effect, reform statutes because\nCongress, in writing them, labored under a misapprehension as to facts or law\xe2\x80\x9d).\nOur obligation, however, is to give meaning and effect to the entirety o f the rele\xc2\xad\nvant statutory texts, and we can do so here only if we assume that the 1890 deriva\xc2\xad\ntive statutes were designed for the sole benefit of the 1890 colleges. An\ninterpretation of NARET \xc2\xa7\xc2\xa7 1444 and 1445 that takes those provisions to refer\nonly to the 1890 colleges is the only reading of the statute that can account for the\n\xe2\x80\x9cfull text, language[,] . . . structure, and subject m atter.\xe2\x80\x9d N ational Bank o f O r., 508\nU.S. at 455.\nAs detailed below, this understanding o f the 1890 derivative statutes helps ex\xc2\xad\nplain certain provisions in those enactments that otherwise would remain anoma\xc2\xad\nlous. Although these anomalies do not necessarily rise to the level of intrinsic\ntextual ambiguity, nor do they create patently absurd results, our ability to explain\nthem provides some assurance that our use of legislative history has contributed to\na proper understanding of the text.19\nThe first anomaly has to do with the computation o f funding authorized by NA\xc2\xad\nRET \xc2\xa7\xc2\xa7 1444(a) and 1445(a). In \xc2\xa7 1444(a), it is keyed to a percentage of the\namount of funds appropriated for extension work under the Smith-Lever Act. See\n91 Stat. at 1007. Likewise, in \xc2\xa7 1445(a), research funds are authorized in an\namount based upon a percentage of the level of funds appropriated for agricultural\nresearch under the Hatch Act. See id. at 1009. As noted above, however, every\nstate has given its Smith-Lever and Hatch Act funds exclusively to its 1862 college\nand experiment stations controlled exclusively by those schools (except Arkansas,\nwhich has an independent experim ent station). If \xc2\xa7\xc2\xa7 1444 and 1445 are designed\nto rectify the states\xe2\x80\x99 historic discrimination between the 1862 and 1890 colleges,\nthese funding mechanisms would have a discernible purpose. But if \xc2\xa7\xc2\xa7 1444 and\n1445 are read to benefit the 1862 colleges as well as the 1890 colleges, then Con\xc2\xad\ngress would have created a (much smaller) duplicate mechanism to fund research\nand extension at colleges already receiving appropriations for these purposes under\nthe Smith-Lever Act and the Hatch Act. It also seems unlikely that when Congress\nprovided \xe2\x80\x9ccatch up\xe2\x80\x9d funds for the 1890 colleges, it did so by appropriating still\nmore funds for the 1862 colleges already acknowledged to be receiving the lion\xe2\x80\x99s\nshare of state and federal land-grant funding. It is more consonant with the statu\xc2\xad\n\nS ee Retch i\xe2\x80\x99 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\n19\ncourt suggested that one may \xe2\x80\x9c seek m eaning beneath the sem antic level not only w hen there is an \xe2\x80\x98intrinsic\'\nam biguity\nbut also w hen there is an \xe2\x80\x98ex trin sic \xe2\x80\x99 one, that is, w hen doubt that the literal m eaning is the\ncorrect one arises only w hen one know s som ething ab o u t the concrete activities\nintended to [be] regulate[d].\xe2\x80\x9d Id. at 494. Thus. \xe2\x80\x9c A literal reading o f the F air Labor Standards Act w ould create a senseless d is\xc2\xad\ntinction betw een Indian police and all other public police\nN othing in the A ct alerts the read er to the\nproblem ; you have to know that there are Indian police to recognize it But once it is recognized, the Act,\nview ed as a purposive, rational docum ent, becom es am b iguous, creating room for interpretation W e cannot\nthink o f any reason other than oversight why C ongress failed to extend the law enforcem ent exem ption to\nIndian police\n[and] no reason has been suggested to us." Id.\n\n197\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\ntory purpose to read the 1890 derivative statutes as appropriating funds solely for\nthe 1890 colleges.\nA second anom aly occurs in NARET \xc2\xa7 1444(c), which contains presuppositions\nthat make sense only if \xc2\xa7 1444 is read to apply solely to the 1890 colleges. Sub\xc2\xad\nsection (c) provides: \xe2\x80\x9cThe State director o f the cooperative extension service and\nthe adm inistrative head for extension at the eligible institution in each State where\nan eligible institution is located shall jointly develop, by mutual agreement, a com\xc2\xad\nprehensive program of extension for such State.\xe2\x80\x9d 91 Stat. at 1008. As mentioned,\nevery state has an extension service created under the Smith-Lever Act and at\xc2\xad\ntached to that state\xe2\x80\x99s 1862 college. This subsection, however, contemplates that\nnot every state has an eligible institution (making it necessary to include the phrase\n\xe2\x80\x9cwhere an eligible institution is located\xe2\x80\x9d). It also presupposes a distinction be\xc2\xad\ntween the statew ide extension program and the extension program at an eligible\ninstitution, whose administrative heads are instructed to work \xe2\x80\x9cjointly.\xe2\x80\x9d These\npresum ptions do not make sense if \xc2\xa7 1444 is read to include the 1862 colleges,\nwhich have extension programs. They make sense, however, if \xc2\xa7 1444 is read to\nestablish a new extension program for the exclusive benefit of the 1890 colleges,\nwhich are found only in sixteen states and do not have an extension program under\nthe Sm ith-Lever Act. Indeed, the Conference Report confirms that the purpose of\nsubsection (c) is to coordinate the extension program newly created under \xc2\xa7 1444\nat each 1890 college with the existing extension program at the 1862 college lo\xc2\xad\ncated in the same state. Conference Report at 226-27; see also House Report at\n122 (\xe2\x80\x9c [T]he com m ittee wishes to stress its desire that the agricultural research con\xc2\xad\nducted at the 1890\xe2\x80\x99s . . . and the involved 1862 institutions not be duplicative.\xe2\x80\x9d).\nA third anom aly appears in \xc2\xa7 1433(a) o f the A griculture and Food Act o f 1981,\nwhich is opaque unless read to benefit only the 1890 colleges. It states:\nIt is hereby declared to be the intent of Congress to assist the in\xc2\xad\nstitutions eligible to receive funds under the [Second M om ll Act]\n. . . in the acquisition and improvement o f research facilities and\nequipm ent so that eligible institutions may participate fully with the\nState agricultural experiment stations in a balanced attack on the re\xc2\xad\nsearch needs of the people o f their States.\n95 Stat. at 1312. As has been indicated, no state has more than one agricultural\nexperim ent station, and all (but one) of these are under the control of an 1862 col\xc2\xad\nlege that receives Second Morrill Act benefits. Section 1433(a) cannot refer to\nboth the 1862 and 1890 colleges because that would mean that the 1862 colleges in\nstates w ithout 1890 colleges are to \xe2\x80\x9cparticipate fully\xe2\x80\x9d with them selves in perform\xc2\xad\ning agricultural research. Thus, the text makes sense only if the eligible institutions\nare understood as a class separate from the existing state agricultural experiment\nstations. Properly construed, the section reflects once again the congressional pur\xc2\xad\n198\n\n\x0cReconsideration o f P rior Opinion C oncerning L and-C ranl C olleges\n\npose o f providing additional funding to the 1890 colleges to restore \xe2\x80\x9cbalance[]\xe2\x80\x9d in\nthe allocation of federal funds between the 1862 and 1890 colleges, thus rectifying\na perceived imbalance that had prevented the 1890 colleges from \xe2\x80\x9cparticipat[ing]\nfully\xe2\x80\x9d in agricultural research.\nThe very same analysis applies to the language of \xc2\xa7 1416(a) o f the Food Secu\xc2\xad\nrity Act of 1985, 99 Stat. at 1549, setting forth a declaration of congressional intent\nin authorizing grants to upgrade cooperative extension facilities. The title of\n\xc2\xa7 1416, moreover, is \xe2\x80\x9cGrants to upgrade 1890 land-grant college extension facili\xc2\xad\nties.\xe2\x80\x9d Id.\nIn sum, a number of anomalies disappear when the 1890 derivative statutes are\nread as benefiting solely the 1890 colleges. There are, moreover, aspects of the\n1890 derivative statutes that affirmatively support such a reading. First, it is sig\xc2\xad\nnificant that all of the 1890 derivative statutes allocate funds not to the states, as is\ntrue of the earlier land-grant statutes, but directly to the eligible institutions.20 The\nlegislative history indicates that Congress understood this structure as a departure\nfrom prior practice with respect to the 1862 colleges. See Conference Report at\n226 (rejecting a Senate bill provision that would have provided that the states \xe2\x80\x9cact\nas intermediaries with respect to the extension programs between the 1890 institu\xc2\xad\ntions and the Secretary of Agriculture in the same manner as currently exists for\n1862 institutions\xe2\x80\x9d in favor of a House am endm ent that provided for a direct rela\xc2\xad\ntionship between the 1890 institutions and the Secretary). This difference in\nstructure is consistent with the expressed purpose of the 1890 derivative statutes to\nrectify an imbalance of funding brought about largely by the discriminatory action\nof the states in their allocation of federal (and state) funds.\nSecond, as noted above, the titles of most o f the 1890 derivative statutes ex\xc2\xad\npressly refer to funding for the 1890 colleges. See, e.g., NARET \xc2\xa7 1444, 91 Stat.\nat 1007 (\xe2\x80\x9cExtension at 1890 land-grant colleges\xe2\x80\x9d); FACT Act \xc2\xa7 1612(b), 104 Stat.\nat 3722 (\xe2\x80\x9cGrants to upgrade agricultural and food sciences facilities at 1890 landgrant colleges\xe2\x80\x9d). The titles provide strong textual evidence that the 1890 deriva\xc2\xad\ntive statutes are designed to benefit only the 1890 colleges.\nFinally, the sums appropriated pursuant to the 1890 derivative statutes are much\nsmaller than those appropriated pursuant to the earlier land-grant statutes. For ex\xc2\xad\nample, the FY 94 Appropriation provides the 1862 colleges and experiment sta\xc2\xad\ntions with $272,582,000 in Smith-Lever Act funding for extension work and\n$171,304,000 in Hatch Act funding for research. In contrast, it provides only\n$25,472,000 for extension work pursuant to NARET \xc2\xa7 1444 and $28,157,000 for\nresearch pursuant to NARET \xc2\xa7 1445. See 107 Stat. at 1051, 1053. In each case, if\nthe N A RET funds were divided over seventy-four schools (the combined total o f\nthe 1862 and 1890 colleges and Tuskegee University), no school would derive\n\n20\nA lthough the H atch A ct provides for disbursem ent o f funds by the federal governm ent directly to the\nbeneficiaries, the states effectively each choose the beneficiary, and the appropriation is said to be \'\xe2\x80\x9cto each\nState \xe2\x80\x9d 24 Slat, at 441\n\n199\n\n\x0cOpinions o f the O ffice o f L egal Counsel\n\nmuch benefit from its share of funds and the am ount received by an 1862 college\nwould be m inuscule relative to the funds that each such college will receive for\nessentially the sam e purposes pursuant to the Sm ith-Lever and Hatch Acts. These\ncircum stances suggest that the congressional intent was not to divide the 1890 de\xc2\xad\nrivative funds am ong all the land-grant colleges, but only among the 1890 colleges.\nSee R ose v. R ose, 481 U.S. 619, 630-31 (1987) (em ploying division o f appropria\xc2\xad\ntions am ong beneficiaries to determine meaning o f statute).\nO ur exam ination o f the FACT A ct \xc2\xa7 1612, 104 Stat. at 3721, as well as its leg\xc2\xad\nislative history, confirm s that Congress continued to equate the colleges eligible to\nreceive benefits under the Second M orrill Act with the 1890 colleges. See, e.g.,\nH.R. C onf. Rep. No. 101-916, at 1047-48 (1990). The same is true o f the FY 94\nAppropriation, 107 Stat. at 1051-53, and its legislative history. See, e.g., H.R.\nRep. No. 103-153, at 29, 40 (1993); S. Rep. N o. 103-102, at 29, 40-1 (1993).\nThus, the class of intended beneficiaries has not changed.\n\nB.\nHaving concluded that Congress intended the phrase \xe2\x80\x9celigible to receive funds\n[under the Second M orrill Act]\xe2\x80\x9d to refer solely to the 1890 colleges, we must de\xc2\xad\ntermine w hether State College falls within this class. Congress understood this\nclass to encom pass a specific list o f sixteen identified schools (to which was added\nthe Tuskegee Institute). See, e.g., H.R. Rep. No. 97-151, at 3 (1981) (listing the\n1890 colleges). Because State College was not among the identified schools, it\nwould seem that it may not share in 1890 derivative funding.\nC ongress\xe2\x80\x99s list of 1890 colleges, moreover, likely was drawn from the general\nunderstanding of the term \xe2\x80\x9c 1890 college\xe2\x80\x9d as a category encompassing historically\nblack land-grant colleges with a com m on genesis in the Second Morrill Act.\nOriginally, State College was commonly understood to be among this group. Be\xc2\xad\ncause State College was withdrawn from the land-grant system, however, it lost its\nstanding as an 1890 college. Thus, when the 1890 derivative statutes were passed,\nthis term was no longer commonly understood to include State College.21 State\nCollege, therefore, was not (and could not have been) among the intended benefi\xc2\xad\nciaries of those statutes.\nIt m ight be argued nonetheless that W est V irginia\xe2\x80\x99s putative restoration of State\nCollege to the land-grant system also restored it to the category of 1890 colleges.22\nW est V irginia took this action in 1991, prior to the 1993 enactment o f the FY 94\n21 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)\nwith, e\nE 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\ndraw n from E d d y \'s book).\n22 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\n* re d e sig n a tio n \xe2\x80\x9d o f State C ollege under the S eco n d M orrill A ct m akes it eligible for 1890 derivative funding\nSee 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,\nG o v ern o r o f W est V irg in ia at 2 (A ug. 9, 1991).\n\n200\n\n\x0cReconsideration o f Prior Opinion C oncerning L and-G rant C olleges\n\nAppropriation. Therefore, we cannot a p rio ri exclude the possibility that, at the\ntime the FY 94 Appropriation was enacted, either Congress believed that State\nCollege was once again an 1890 college or, in a more general sense, that \xe2\x80\x9c 1890\ncollege\xe2\x80\x9d as a term of art once again included State College. The A ppropriation\xe2\x80\x99s\nlegislative history, however, does not offer any discussion as to what schools Con\xc2\xad\ngress thought were among the 1890 colleges.23 Furthermore, the general usage\ndoes not appear to have changed.24 In light o f the previous congressional belief (as\nwell as the general understanding among those using the term) that State College\nwas not one of the 1890 colleges, this silence is tantamount to not recognizing\nState College\xe2\x80\x99s restoration as an 1890 college.25 Consequently, we conclude that\nthe reference to 1890 colleges in the FY 94 Appropriation does not include State\nCollege. Accordingly, State College may not share in the funds appropriated in the\nFY 94 Appropriation pursuant to the authorizations contained in the 1890 deriva\xc2\xad\ntive statutes.\n\nIV.\nSTATE COLLEGE\xe2\x80\x99S ELIGIBILITY FOR FUNDS\nUNDER THE SECOND MORRILL ACT\nW e turn now to the question posed by A griculture\xe2\x80\x99s Request for Reconsidera\xc2\xad\ntion whether a land-grant college may receive Second Morrill Act appropriations if\nit does not receive funds under the First Morrill Act.\nThe Second M om ll Act provides an annual appropriation of funds \xe2\x80\x9cto each\nState . . . for the more complete endowment and maintenance of colleges for the\nbenefit of agriculture and the mechanic arts now established, or which may be\nhereafter established, in accordance with [the provisions o f the First Morrill Act].\xe2\x80\x9d\nId. \xc2\xa7 1, 26 Stat. at 417-18. Agriculture construes this general language to condi\xc2\xad\ntion the eligibility of a college to receive funds under the Second Morrill Act upon\nits designation as a recipient of First Morrill Act funds. In our original opinion, we\nreached the opposite conclusion, construing this language to impose only a re\xc2\xad\nquirement that a college conform to the educational requirements of the First M or\xc2\xad\nrill Act (and the non-discrimination requirement in the Second Morrill Act).\nIn light of our conclusions in Part III, supra, this issue does not have any bear\xc2\xad\ning on the question of whether State College (or any college) may qualify for\n\n21 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 discussion in the legislative history accom panying A g riculture\xe2\x80\x99s appropriation bill for fiscal year 1993. See, e g ,\nH R R ep No 102-617, at 41 (1992), S Rep N o 102-334, at 4 0 (1992).\n24 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\n1890 institutions), A C entury oj S ervice L and-G ratit C o lleg es and U niversities, 1890-1990 xx, 15 (R alph\nD 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 landgrant college but later rescinded land-grant statu s; om its State C ollege from list of 1890 colleges).\n25 S ee Walton v. U nited C onsum ers Club, Inc , 786 F 2d 303, 310 (7th C ir 1986) ( \xe2\x80\x98\xe2\x80\x98[B ]ecause the purpose\no f language is to use shared understandings, m eanings held by both w riter and reader, a court m ay not as\xc2\xad\nsum e that C ongress picked an unusual m eaning unless som e evidence supports that in terpretation.\xe2\x80\x99\xe2\x80\x99).\n\n201\n\n\x0cOpinions o f th e O ffice o f L e g a l C ounsel\n\nfunding under the 1890 derivative statutes. M oreover, we note that there are no\nrestrictions on the division of funds between schools eligible for First Morrill Act\nfunds. See infra note 27 and accompanying text. Therefore, as Agriculture has\nacknow ledged, W est Virginia \xe2\x80\x9ccould meet the threshold of 1862 designation by\ngiving State College one dollar of 1862 monies per year.\xe2\x80\x9d Request for Reconsid\xc2\xad\neration at 10. Furtherm ore, as indicated earlier, the annual appropriation for each\nstate under the Second Morrill Act is not large by today\xe2\x80\x99s standards. These con\xc2\xad\nsiderations substantially reduce the practical importance of any decision on this\nissue. N onetheless, since State C ollege\xe2\x80\x99s eligibility for Second Morrill Act funding\nremains in dispute, we will reconsider the issue. W e conclude that, although the\nquestion is a close one, the balance o f the evidence favors our original view.\nT he legislative history of the Second M orrill Act suggests that Congress be\xc2\xad\nlieved that the appropriated funds would in fact be used to supplement the funds\navailable to the land-grant colleges and departments that had been established by\nthe states pursuant to the First M orrill Act.26 Furtherm ore, the development o f the\nland-grant system has indeed followed this course. Except for the 1890 colleges,\nonly colleges receiving the benefits o f the First M orrill A ct have been designated\nby their respective states to receive appropriations under the Second Morrill Act.\nNonetheless, in our original opinion, we took the view that the statutory language\ndid not specifically mandate that the states allocate Second Morrill A ct funds only\nto colleges already endow ed with F irst Morrill A ct funds if a state (such as W est\nVirginia) wished to do otherwise.\nIn support o f our original construction of the Second Morrill Act, these kinds of\nconsiderations may be cited: the statutory scheme, the contrast with the language\nof a sim ilar statute, the longstanding practice o f those administering the Act, and\njudicial construction of it. First, the existence o f such a specific limitation seems at\nodds with the statutory scheme, w hich vests the states with very broad power to\nallocate Second Morrill Act appropriations to institutions o f their choosing. Thus,\nthe Suprem e Court in Wyoming ex rel. Wyoming Agric. C ollege v. Irvine, 206 U.S.\n278, 284 (1907), sum m arized the plenary nature o f the states\xe2\x80\x99 power over First and\nSecond M orrill Act funds as follows: \xe2\x80\x9cthe fund and its interest [under the First\nM orrill Act] and the annual appropriations [under the Second Morrill Act] are the\nproperty o f the State and not of any institution within it.\xe2\x80\x9d27 This statutory scheme\nrenders the proposed limitation virtually superfluous because, as Agriculture con-\n\n26 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).\n27 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\nthe 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\nschool. 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\npow 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),\nM 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\nSecond 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\xc2\xad\ncept in states practicin g racial segregation, w h ic h are required to have no more than one school for each\nrace).\n\n202\n\n\x0cR econsideration o f P rior Opinion Concerning L and-G rant C olleges\n\ncedes, a state may qualify a school for Second Morrill Act appropriations by allo\xc2\xad\ncating to it but one dollar of First Morrill Act funds.28\nA second consideration is the difference in language between the Second M or\xc2\xad\nrill Act and the Smith-Lever Act of 1914. The Smith-Lever Act follows the struc\xc2\xad\nture of the Second M orrill Act in giving appropriated funds to the states. 38 Stat.\nat 373. It expressly provides, however, that the states must allocate the appropri\xc2\xad\nated funds for extension work at \xe2\x80\x9cthe college or colleges in each State now receiv\xc2\xad\ning, or which may hereafter receive, the benefits of the [First Morrill Act] . .. and\nof the [Second Morrill Act].\xe2\x80\x9d Id. Thus, Congress knew how to impose this type of\nrequirement in clear language when it wished to do so. The contrasting absence of\nan explicit requirement in the Second Morrill Act tends to show that none was in\xc2\xad\ntended.\nA third consideration is that Agriculture to this day has permitted the states to\ncontinue giving Second Morrill Act appropriations to the 1890 colleges without\nrequiring that they receive First Morrill Act funds, notwithstanding the invalidity o f\nthe racial segregation proviso. See supra note 10 and accompanying text. W ithout\nthe benefit of the exemption contained in that proviso, however, all of the 1890\ncolleges should have been subject to what Agriculture takes to be the requirement\nthat they receive First Morrill Act funds, to the same extent as if they were 1862\ncolleges. Thus, Agriculture\xe2\x80\x99s administration of the Second Morrill Act does not\nsupport its position with respect to State College.\nFinally, the judicial decisions construing the Second Morrill Act support our\nconstruction of the Act, although we agree with Agriculture that they are not dis\xc2\xad\npositive o f the precise question at issue. The cases concerning requirements for\nreceipt of First and Second Morrill Act funds have focused on the type of educa\xc2\xad\ntion to be provided by a college in order to be eligible for such funds. See M arden,\n30 N.E at 556-57 (holding that a college may receive First and Second Morrill\nAct funds if it is of the type specified in the First Morrill Act); In re Agric. Funds,\n21 A. 916, 917 (R.I. 1890) (holding that the failure of Rhode Island\xe2\x80\x99s agricultural\nschool to teach the mechanic arts disqualified it from Second Morrill A ct funds\nthat were intended \xe2\x80\x9c \xe2\x80\x98for the benefit of agriculture and the mechanic arts.\xe2\x80\x99\xe2\x80\x9d)\n(emphasis added) (quoting the First Morrill Act, \xc2\xa7 4, 12 Stat. at 504); S tate ex rel.\nWyoming Agric. C ollege v. Irvine, 84 P. 90, 100 (Wyo. 1906) (sum m arizing In re\nAgric. Funds as a decision that \xe2\x80\x9cheld . . . that a mere agricultural school was not\nwithin the contemplation of the [First and Second Morrill A cts]\xe2\x80\x9d), a ff\xe2\x80\x99d. 206 U.S.\n278 (1907). These decisions do not say that receipt of First M om ll Act funds is a\nprerequisite for eligibility for Second Morrill Act appropriations. On the other\nhand, neither M arden nor In re Agric. Funds holds squarely that a college may\n28\nM 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\nlype o f educational institution \xe2\x80\x94 i e , \'\xe2\x80\x98colleges devoted to agriculture and the m echanic arts. * A g ric u ltu re\'s\nrequirem ent -- that a school receive First M orrill Act funds -- does not advance this purpose to any greater\ndegree than o u r construction, which requires that any school eligible to receive Second M orrill Aci funds\nalso conform to the educational requirem ents im posed by the First and Second M orrill Acts\n\n203\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nreceive Second Morrill Act funds even if it does not receive First Morrill Act\nfunds. In M arden, Massachusetts Institute of Technology in fact was receiving\nboth. In In re Agric. Funds, the court denied the state agricultural college eligibil\xc2\xad\nity for Second M orrill Act funds.29\nAgriculture nonetheless contends that the statute does require that any college\nreceiving Second M orrill Act appropriations have been designated for First Morrill\nAct funds. A griculture infers this requirem ent primarily from the recitation that the\nSecond M orrill A ct\xe2\x80\x99s appropriations are \xe2\x80\x9cfor the more complete endowment and\nm aintenance\xe2\x80\x9d of the land-grant colleges. The suggestion is that the words \xe2\x80\x9cmore\ncom plete\xe2\x80\x9d imply that the states are required to use these funds solely to supplement\nthe endow m ent o f schools receiving First Morrill Act funds. Agriculture reinforces\nthis point by noting that the First M orrill A ct requires states to \xe2\x80\x9ctake and claim the\nbenefit\xe2\x80\x9d for \xe2\x80\x9cat least one college.\xe2\x80\x9d 12 Stat. 504. Under the terms of the First M or\xc2\xad\nrill Act, a state failing to designate at least one beneficiary would forfeit its benefit\nentirely under that Act, id. at 504-05, without which no institution could be \xe2\x80\x9cmore\ncom p letely ] endow ed\xe2\x80\x9d under the Second M orrill Act. In light of the considera\xc2\xad\ntions discussed above, we doubt that the very general language concerning the pur\xc2\xad\npose o f the Second M orrill Act can support the construction that Agriculture has\nplaced upon it.\nThe text of the Second Morrill Act, however, lends support to Agriculture\xe2\x80\x99s\nview for another reason. The Second M orrill A c t\xe2\x80\x99s (invalid) racial segregation\nproviso deem ed the establishment o f institutions for \xe2\x80\x9ccolored students\xe2\x80\x9d to be com \xc2\xad\npliance with the proviso that forbade discrimination in the admission of students\nbased on race or color. It did so by authorizing states having a college \xe2\x80\x9cestablished\nin pursuance o f [the First M omll A ct]\xe2\x80\x9d to establish (if they had not already done\nso) an institution \xe2\x80\x9co f like character\xe2\x80\x9d for black students, \xe2\x80\x9cwhether or not it has re\xc2\xad\nceived money heretofore under the [First M orrill A ct].\xe2\x80\x9d 26 Stat. at 418. This lim \xc2\xad\nited exem ption of schools for \xe2\x80\x9ccolored students\xe2\x80\x9d from receipt of First Morrill Act\nfunds would seem to imply a congressional understanding that schools receiving\nappropriations under the Second M orrill Act and not established under the proviso\nbe otherw ise subject to the requirement of receiving o f First Morrill Act funds.\nSom e pertinent legislative history also substantiates Agriculture\xe2\x80\x99s view. Most\nrelevant is a floor exchange between Senator Hoar and Senator Blair. During a\ndiscussion o f the draft bill, Senator Hoar suggested that the bill ought to, but did\nnot, allow states to allocate the appropriated benefits to an institution devoted to\nthe agriculture and mechanic arts \xe2\x80\x9cwhich did not receive the benefit of the original\n29\nR hode Isla n d \xe2\x80\x99s ag ricu ltu ral school was n o t a recipient o f First M o m ll A ct funds (only Rhode Island\xe2\x80\x99s\nB row n U n iv ersity ap p ears to have been specifically so desig n ated ) T hus, the court could have disqualified\nthe agricu ltu ral school from Second M om ll A ct appropriations on this ground alone, if it had read that A ct in\nthe m an n er that A g riculture proposes. That th e court d enied the agricultural school Second M om ll Act\nappropriatio 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,\nsupports 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\xc2\xad\nble 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\n\n204\n\n\x0cR econsideration o f P rior Opinion C oncerning L and-G rant C olleges\n\nbenefaction.\xe2\x80\x9d 21 Cong. Rec. 6086 (1890). He suggested that the bill be amended\nto rectify this perceived deficiency. Senator Blair \xe2\x80\x94 who was answering questions\nand objections from the Senators concerning the bill \xe2\x80\x94 asserted initially that the\nbill did not require amendment because it \xe2\x80\x9cmeets . . . the suggestion[] of [Senator\nHoar] as it now is.\xe2\x80\x9d Id. This initial response implied that the bill did not require\ncolleges to receive First Morrill Act funds in order to be eligible for the new ap\xc2\xad\npropriation. When Senator Hoar expressed skepticism that the bill met his con\xc2\xad\ncerns, however, Senator Blair elaborated as follows:\nIt was not the understanding of the committee that we were rec\xc2\xad\nommending an annual appropriation for an indefinite number of\ncolleges which might hereafter come to be established. M eritorious\ncolleges undoubtedly will be established including the same subject\nmatter; but it was thought that the States where these colleges are\nshould receive a certain specific amount, $15,000 a year, and let\nthem appropriate that money, as they necessarily must now, to the\nsingle agricultural college that exists in each State.\nIf there should be subsequently from those same funds \xe2\x80\x94 and I\ndo not see how it can be done, for the whole amount that was real\xc2\xad\nized from the lands under that act is already invested in every State\n\xe2\x80\x94 but if it is conceivable that they should be subdivided and those\ninstitutions multiplied with the funds already in the possession of\nthe State, then let them divide this annual appropriation for the sup\xc2\xad\nport o f several if they see fit, but otherwise let it be concentrated\nupon a single one of the institutions. However, they must be insti\xc2\xad\ntutions which derive their vitality from the original act of Congress\nmaking appropriations of the public lands. The nation itself cer\xc2\xad\ntainly ought not to be dragged beyond what originates in that spe\xc2\xad\ncific act of Congress in the way o f support of the agricultural\ncolleges and those of the mechanic arts which the States may see fit\nto multiply among themselves hereafter.\nId. at 6087. This statement suggests that Senator Blair viewed the Second Morrill\n\nAct as prohibiting states from allocating funds to colleges not endowed with First\nMorrill Act funds. O f course, the statement is at odds with Senator B lair\xe2\x80\x99s initial\nresponse to Senator H oar\xe2\x80\x99s suggested amendment. Nonetheless, it is much more\ndetailed than the initial response and therefore likely reflects Senator B lair\xe2\x80\x99s views\nmore accurately.\nSenator B lair\xe2\x80\x99s statement, however, belies the balance of political forces at the\ntime of the Second M orrill Act. To be sure, the Second M om ll A ct\xe2\x80\x99s enactm ent\nlargely resulted from fierce lobbying by the land-grant college presidents, an effort\n205\n\n\x0cOpinions o f the O ffice o f L eg a l C ounsel\n\nobviously intended to obtain funds for these particular colleges and no others.30\nToo, the college presidents were able to squelch Senator\xe2\x80\x99s Hoar proposal for ex\xc2\xad\nplicit language perm itting schools not receiving First Morrill Act funds to be given\nSecond M orrill A ct appropriations. See W illiams, supra note 2, at 144. It is\ndoubtful, however, that the college presidents had the political strength to obtain\nexplicit language confining Second M orrill Act appropriations to schools receiving\nFirst M orrill Act funds. They faced powerful opposition from the Grange m ove\xc2\xad\nment, w hich had long \xe2\x80\x9ccondemn[ed] the colleges for their inability to attract agri\xc2\xad\ncultural students and vow[ed] to oppose the schools in every way,\xe2\x80\x9d W illiams,\nsupra note 2, at 3; see Eddy, supra note 2, at 73; Ross, su pra note 2, at 79-80. The\nstrength o f the Grange was reflected by the \xe2\x80\x9cG range Amendment\xe2\x80\x9d to the Second\nM orrill Act, which restricted application o f the appropriations more narrowly and\nexplicitly than had the First M orrill Act. The college presidents were forced to\ninclude these restrictions if they w ere to obtain even the G range\xe2\x80\x99s sullen acquies\xc2\xad\ncence in the Second M orrill Act. It is doubtful that the bill would have passed had\nthey not done so.31 Even with such acquiescence, the Grange maintained their ef\xc2\xad\nforts to redirect federal funding aw ay from the existing land-grant colleges.32\nThere seems little doubt that the G range would have opposed vociferously (and\nprobably successfully) any language that expressly confined Second Morrill Act\nappropriations to schools receiving the benefits o f the First Morrill Act.\n\n10 A s one re p resen tativ e in the House com plained:\nI 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\xc2\xad\ntional lobby, co m p o sed o f the presidents o f the ag ricu ltu ral institutions They have haunted the\nco 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,\nth 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\nco m m u n ic atio n s. .\nM y G od, if there is any eag ern ess in the w orld it is possessed by these\ngen 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,\nsir, 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,\nstro n g , co m b in ed lobby fo r the benefit o f the agricultural co lleges o f the country.\n21 C ong . Rec 8 8 3 6 (1 8 9 0 ) (rem ark s of Rep. C aru th )\n11 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\nStat 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\nlanguag 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 ,\nW 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\npresidents o n ly three years earlier concerning the bill that b ecam e the H atch Act, w hen they successfully\nforced an am en d m en t, also kn o w n as the \xe2\x80\x9cG ran g e A m en d m en t,\xe2\x80\x9d that preserved for the states the option o f\nm 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\xc2\xad\nleges 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,\nRoss, su p ra n o te 2, at 140.\n32 Se e W illiam s, su p ra note 2, at 152 (\xe2\x80\x9cAt its annual m eeting in 1891, the G range declared the land-grant\nc olleges to b e \xe2\x80\x98p ractically w o rth le ss\' and im p lo red C ongress to separate the agricultural departm ents from\ne xisting co lleg es, e stab lish in g new and purely agricultural in stitu tions around them \xe2\x80\x98W e further ask ,\' the\nG range ad d ed , \xe2\x80\x98that 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\xc2\xad\nrate and d istin c t agricultural and m echanical c o lle g e s as m ay be established in the several states \xe2\x80\x99\xe2\x96\xa0\xe2\x80\x99) (footnote\no 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\nd esignatio n fro m their resp ectiv e state legislatures d u ring the 1860s but lost it to agricultural colleges during\nthe 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\ns 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).\n\n206\n\n\x0cR econsideration o f P rior Opinion Concerning Land-G rant C olleges\n\nSignificantly, the land-grant college presidents themselves were not so certain\nthat the Second M orrill Act appropriations could be confined to their institutions\nunder the language of that Act as it was enacted. They were even fearful that the\nSecond M orrill Act could actually be interpreted to deny them such funds alto\xc2\xad\ngether. Thus, barely two months after the enactment of the Second Morrill Act:\nAtherton and Alvord [two influential land-grant college presi\xc2\xad\ndents who had each played a major role in lobbying for the Second\nMorrill Act] were extremely anxious about the potential for rogue\ninitiatives\xe2\x80\x94 especially from the Grange\xe2\x80\x94 to exclude land-grant\ncolleges from receiving the benefits of the act or to qualify nonland-grant colleges for the new funds. Thus, they prepared a \xe2\x80\x9cB rief\nof Points\xe2\x80\x9d for A ssistant Interior Secretary Chandler and distributed\nit as appropriate to various land-grant colleges. In their document,\nAtherton and Alvord interpreted the second Morrill Act as a\n\xe2\x80\x9csupplement to the Act of 1862.\xe2\x80\x9d They were careful to note that the\nlatter act applied only to institutions designated by their state legis\xc2\xad\nlatures to receive funds from the original act. Anticipating argu\xc2\xad\nments to the contrary, Atherton and Alvord emphasized that the\nbroad nature of the original act, and the power it gave to the various\nstates to develop their land-grant colleges according to the demands\no f local conditions, had given rise to a disparate class of institutions\n. . . . They further emphasized that questions of institutional pur\xc2\xad\npose and organization . . . had already been settled in the various\nstates \xe2\x80\x9cand cannot now be raised to debar them from the benefits o f\nthe Act of 1890.\xe2\x80\x9d\nWilliams, su pra note 2, at 151-52 & n.75. It seems likely that the land-grant col\xc2\xad\nlege presidents would have obtained explicit language in their favor two months\nearlier if they could have done so. Thus, the absence of such language from the\nSecond M orrill Act does not appear to be mere oversight. Rather, it appears to\nreflect a stalemate between the college presidents and the Grange. In these circum \xc2\xad\nstances, we do not find the single (somewhat contradictory) statement by Senator\nBlair to be controlling of our interpretation of the Second Morrill Act.\nIn sum, although the statute (including its legislative history) is not unam bigu\xc2\xad\nous, we conclude that the balance of the evidence supports the view that the Sec\xc2\xad\nond Morrill A ct\xe2\x80\x99s appropriations may be given to colleges regardless o f whether\nthey are endowed under the First Morrill Act. Accordingly, West Virginia could\nvalidly designate State College to receive appropriations under the Second Morrill\nAct.\n\n207\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nV. CONCLUSIONS\nW e conclude that W est Virginia could validly designate State College as a re\xc2\xad\ncipient o f Second Morrill Act appropriations without designating it to receive First\nMorrill Act funds. We further conclude that, regardless o f State College\xe2\x80\x99s eligibil\xc2\xad\nity for Second M orrill Act appropriations, it is not among those colleges eligible\nfor benefits under the 1890 derivative statutes.33\n\nW A LTER DELLINGER\nA ssista n t A ttorney G eneral\nOffice o f L egal Counsel\n\n31 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 appropnacions p u rsu a n t to the 1890 derivative statu tes. T h is step w ould supersede any arguably b roader lan\xc2\xad\nguage in the 1890 deriv ativ e statu tes them selves, and w ould thereby rem ove all doubt about the intended\nb e n efic ian e s o f these statu tes S ee supra text acco m p an y in g note 12\n\n208\n\n\x0c\x0c\x0c'