                                    Reconsideration of Prior Opinion
                                    Concerning Land-Grant Colleges

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


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

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


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


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

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

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

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

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


                                                     Table I

         Statute                Enactment                  Main Object of the Legislation

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

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

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

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


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

                                                         A.

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


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

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                                    O pinions o f the O ffice o f L egal Counsel


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

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

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

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


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

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

                                                       B.

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


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

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                                      O pinions o f th e Office o f L eg a l C ounsel


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


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

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


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

                                                       C.

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

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

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

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

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

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

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

                                                      189
                         O pinions o f th e O ffice o f L egal C ounsel


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

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

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

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

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

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

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

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

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


                                              190
                   Reconsideration o f P rior Opinion C oncerning L and-G rant C olleges


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

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

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



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

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


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


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

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


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

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

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

                                               A.

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

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


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                            Opinions o f th e O ffice o f L e g a l Counsel


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

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

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


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             Reconsideration o f P rior O pinion C oncerning L and-G rant C olleges


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

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

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

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

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

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

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                                        Opinions o f th e Office o f L e g a l C ounsel


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


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

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                  Reconsideration o f P rior Opinion C oncerning Land-G rant C olleges


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


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

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


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

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

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

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                  Reconsideration o f P rior Opinion C oncerning L and-C ranl C olleges


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


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

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                                      Opinions o f the O ffice o f L egal Counsel


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

                                                             B.

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


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

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                   Reconsideration o f Prior Opinion C oncerning L and-G rant C olleges


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

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

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


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

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


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

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

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

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


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


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

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


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

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

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

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


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


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



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

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


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

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

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




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                                            V. CONCLUSIONS

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



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




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

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