After twenty-two years of continuous litigation
in the federal courts, the legal battle that has
engulfed Mississippi’s system of higher education,
Ayers v. Fordice, appears to have no end in sight.
Parties on both sides of the struggle have grown
weary of the case, and some say they would like
to strike an agreement that would end the
protracted court battles and put desegregation
efforts on a clear decisive course.
“It’s time to call it quits,” Dr. Clinton
Bristow, president of Alcorn State University,
offered as advice to the plaintiffs and the state
of Mississippi after the Fifth
U.S. Circuit Court of Appeals
issued its latest ruling (see “What the
Court Decided in the Fordice Case.”)
One plaintiff, U.S. Rep.
Bennie Thompson (D-Miss.),
has publicly called for some type
of settlement in Ayers v. Fordice.
“I think it is time for all
parties to sit down and see if we
can put this case to rest,” he said.
And the president of the
college board, Marlin Ivey, agreed. “We want it
[Ayers] to be over with.”
But that’s not so easily done, especially after
the wide-ranging reactions that greeted last
month’s appeals decision.
The chief of staff for Republican Governor
Kirk Fordice, Mark Garriga, for example, said,
“After reading the latest opinion, there is no end in
sight. ” He said he was disappointed that the Fifth
Circuit ruled that the way scholarships at
historically white universities are granted fosters
segregation.
That part of the decision was considered one
of the bright spots by the plaintiffs.
Lead attorney Alvin Chambliss Jr.’s first
reaction to the Fifth Circuit Court decision was
one of elation, in fact, saying that the court had
established in its ruling that colleges have a
responsibility to have a diverse student body
and thus had in effect overturned Hopwood vs.
the State of Texas. In that case, the Fifth
Circuit had ruled that race could not be used
as a factor in admissions. “Hopwood is dead,”
Chambliss said. “The Fifth Circuit has said
that race does matter.”
In comparison to other states that have
undergone court-ordered desegregation in their
higher education systems, Mississippi’s
experience is believed to be the most
contentious. Litigants in other states that
historically maintained systems of legal
segregation, such as Louisiana and Texas, have
developed consent decrees sanctioned by the
federal courts — usually after developing a
consensus among litigants, state government
officials, legislators, higher education governing
boards and the federal government.
Is Consensus Possible?
Is reaching a consensus among litigants
and other key players to reach a consent
decree a possibility in Mississippi?
Given the contentious history of the case,
it doesn’t appear likely anytime soon,
according to legal observers.
Howard University Law School professor
Ken Tollett Sr. believes it is time to settle
because not much more can be achieved at the
judicial level in this case.
“[Lead attorney for the plaintiffs Alvin]
Chambliss and I have disagreed about this for
years. I think we’re better off in the political
process than in the judiciary. Look at
Louisiana and Alabama. It was the leadership
of the Black [legislative] caucuses in those
states that provided good settlements and
provided for the enhancement of Black
institutions. Since Mississippi has such a large
number of [Black] legislators, they may be able
to substantially help these students, if not
constrained too much.”
Even Chambliss appeared to be agreeing
with Tollett after the decision, saying, “It’s
time for the political process to work.”
Although Chambliss, who has pursued the
Ayers case from its inception, saw the
decision as a victory, he said the decision was
not all positive. He is particularly
troubled by the court’s endorsement of
uniform admission standards for Mississippi’s
eight four-year public universities.
The ruling says that even though the
practice of setting one standard for all eight
public universities has the tendency to exclude
Black students who would otherwise have
been able to attend historically Black colleges — which
have traditionally had lower entrance
requirements — they were acceptable because
once students know what is expected of them,
they will meet the higher standards.
The uniform standards, which were
ordered by U.S. District Judge Neal Biggers,
hold that all students must have a minimum
score of 16 on the American College Test
(ACT), a standardized test. In the past, the
historically Black institutions had lower
standards, and the historically white institutions
required higher scores. The first
time the ACT was required by Mississippi
colleges was one month after the University
of Mississippi was forced to accept
James Meredith as its first Black student.
Janell Byrd, assistant council for the
NAACP Legal Defense Fund said she was
largely disappointed by the appeals decision
because the court panel failed to provide an
adequate remedy to widen access of the higher
education to African-American students. “This
decision will continue to shrink the level of
access that African American students have to
higher education in the state of Mississippi,”
Byrd said. She said the uniform admissions
standards combined, with the summer
remediation program was proven to lower the
numbers of African Americans enrolling into
Mississippi’s public colleges. “It makes no
sense,” she said.
Byrd said she agreed with the court panel
on the question of the scholarship awards
based on ACT test scores. “I was happy to
see that part of the decision, which recognized
the illegality of the scholarship program,” she
said.
The Role of the Public School Systems
Robert Kronley, senior consultant to the
Southern Education Foundation, agrees with
Chambliss that that part of the decision
is troubling. “No one is oppose
standards, but you’ve got to do something to
help prepare students to meet those
standards.”
Kronley went on to say, “If the state
could seize this opportunity and use it to start
a dialogue with the K-12 [elementary and
secondary education] people, there
are all sorts of possibilities…. It will take
experimentation, leadership, and a different
mind-set.”
Robert Pressman, co-counsel with
Chambliss, says, “When this case started, you
had a situation where the caste system
nationwide hadn’t been eliminated to a
considerable degree. Then there was
Mississippi, which was so far behind the rest
of the country. There have been a lot of
changes since then, but because Mississippi
was so far behind in the first place, there are
still a lot of things to be done to remove the
vestiges of discrimination.”
Law professor Tollet said, “The low ACT
scores [Black students have] are really a
product of the apartheid of the whole state — for
that matter the South and, to a certain
extent, the whole country.”
James Luvene, one of only three Black
members of the Mississippi Board of Trustees
of State Institutions of Higher Learning (the
College Board), said that the state legislature
“just acted upon an initiative that specifically
deals with the poor school districts in the
state, most of which are Black.” The
legislature recently overruled a gubernatorial
veto to equalize funding between the richest — most
of which are predominantly white — and
poorest most of which are predominantly
Black school districts in the state.
“The legislature will play a major part,
because much of what the court is saying
will require money…. This should tell
state that segregation, which has its
roots racism, is expensive,” says Luvene.
Moreover, Luvene says, “it couldn’t
have happened at a better time. One of
state’s fallbacks all along has been that
don’t have any money. But thanks to the
gaming industry, we’re now one, of the
states with the wealthiest reserves. We’ve got
more than an adequate amount of resources
available to settle this situation.”
One of the things that makes any talk of
settlement difficult is the fact that the
federal government’s stand on the decision
remains a mystery. The Civil Rights Division,
of the U.S. Department of justice,
which joined the Fordice appeals case as a
plaintiff only last fall, has yet to publicly
declare its position on the case. Lee Douglas,
a Justice Department spokeswoman,
said that the decision would be under
review in early May.
Thompson Remains Critical
Congressman Thompson — who has said
he would like to settle and leave the process
to the political system — remains highly
critical of the state’s efforts to desegregate
Mississippi’s higher education system. He
blames the Mississippi College Board for
resisting steps to significantly improve the
state’s public historically Black colleges and
universities (HBCUs). “No one disagrees,
except the College Board, that the HBCUs
have been underfunded,” Thompson said.
Having attended both a historically
Black public institution and a traditionally
white public institution in Mississippi as a
graduate student in the 1970s, Thompson
became one of the plaintiffs in the lawsuit
filed by Jake Ayers in 1975.
At the time, Thompson marveled at the
differences between the predominantly white
campus and the predominantly black campus.
The campus buildings, libraries, equipment
and other facilities at Jackson State
University didn’t come close to measuring up
to what Thompson had encountered at the
University of Southern Mississippi, he said.
“The differences between the two campuses
were like night and day,” Thompson said. “At
USM, faculty members were well paid. We
didn’t have facilities at Jackson State that
were as good as the ones at USM.”
Thompson said conditions at
Mississippi’s HBCUs have changed very
little since he attended graduate school. “Any
changes at the Black schools have been
cosmetic. The only beneficiaries in this case
have been the lawyers for the other side,”
Thompson said.
Thompson says he would like most to see
a consensus reached that would ensure
upgrading of Mississippi’s HBCUs to levels
currently enjoyed by the state’s traditionally
white institutions.
The court’s ruling was mixed on this
subject. It ruled that although funding levels
are unequal, they are reasonable given the
schools’ differing enrollments and missions.
However, it also ruled that the mission
statements — with Black institutions having
much more limited missions than the white
institutions and with programs at Black
colleges duplicated at white institutions — were
traceable to segregation and should be changed.
It also ruled that the fact that the Black
institutions have much worse facilities,
equipment, and libraries than the white
institutions must be remedied by the District
Court.
Luvene of the College Board said, “If
Hopwood was a dark day, then this latest
decision has to be a beacon of hope …. The
fact that the court expanded the opinion into
areas that dealt with the needs of the Black
schools took many of us by surprise. We got
handed back a list of things to do. I think it is a
very strong decision in support of the
historically Black institutions.”
University president Bristow is planning
on using a change in missions to make Alcorn
State University a leader in the fields of
agricultural technology, research, and business.
“The gains for us are more significant than the
losses.”
Not so, says Robert Davis, a
constitutional law professor at the University
of Mississippi School of Law. Black college
presidents, he said, “can look at these things as
victories … but I think that is a shortsighted
view of victory that comes at the expense of
the overall quality of education.”
“The bigger issue is that of funding, which
was won by the state.”
Dr. James F. Lyons, president of Jackson
State University, agrees with Davis. “The
decision sent a resounding signal to Black
colleges …. The court said that [Black
colleges] are only going to see desegregation
support if HBCUs and their programs can be
made attractive to white students.”
Law professor Tollett agrees: “This
decision gives no consideration to the
enhancement of schools for Blacks. It all has
to do with attracting more whites to Black
schools. I haven’t seen anything about how to
bring more Black students in to white schools.
The whole premise of the analysis is subtly
white supremacist.”
Dr. Roy C. Hudson, vice president for
administration at Mississippi Valley State
University and a principal in the case since it
began in 1974, said that Mississippi’s Public
higher education system “will never be
without its racial duality.”
He called the court’s ruling “imperfect …
but one that we’ll take.”
RELATED ARTICLE:
What the Court Decided in the Fordice Case
The Fifth U.S. Circuit Court of
Appeals ruled late last month that
Mississippi’s system of higher
education has still not shaken all
vestiges of segregation, despite
decades of litigation.
In its complex 104-page ruling in
Ayers v. Fordice, the three-judge panel
said that public colleges are still
identifiable as white or Black.
Although public college admissions
procedures passed the court’s scrutiny,
it said that the way scholarships are
granted to students at the white
colleges can be traced to the time
when segregation was legal. It ordered
the lower District Court to ensure
that such discriminatory scholarship
practices end.
April’s decision examined in close
detail whether a 1995 District Court
ruling by judge Neal B. Biggers Jr.
met standards set by the U.S.
Supreme Court in 1992. The Supreme
Court had said that any policy that
could be traced to the days of legal, or
de jure, segregation must end.
The Fifth Circuit Court said that
the District Court had met the
Supreme Court standards in some
ways but not in others. Specifically,
the court ruled:
* Admissions: The establishment
of uniform admissions standards at all
public four-year colleges, both Black
and white, is acceptable as long as the
American College Test (ACT) scores
are used in conjunction with other
standards, such as grade point
averages and class rank, and as long as
an alternate route to admissions is
open to students. Right now that
alternate route is a summer
remediation course. The court ordered
the District Court to evaluate the
effectiveness of a summer remediation
program and, if it does not provide an
adequate route to college for Black
students, to develop a new plan.
* Year-round Remediation: The
proposals to eliminate of remedial
classes during the school year at the
four-year colleges needs to be
re-examined by the District Court as to
whether it has a discriminatory effect.
* Scholarships: The use of ACT
scores in awarding scholarships to the
white colleges fosters segregation and
must be remedied, beginning with the
academic year 1998-1999.
* Historically Black Colleges: The
court ruled that the duplication of
programs at nearby Black and white
colleges can be traced to de jute
segregation. It ordered the District
Court to ensure that new programs be
established at Alcorn State and
Mississippi Valley State to increase
their appeal to white students. The
state’s third historically Black college,
Jackson State, was granted several
programs by the District Court in
1995. Although operating funding
levels are clearly lower at the Black
colleges, the court did not order any
remedies, saying that they were
justified by enrollment and mission
statements. It did, however, order the
District Court to look closely at the
disparities of equipment, facilities,
and libraries and
to order relief if necessary.
RELATED ARTICLE:
Hopwood or Fordice: Which Controls in the Fifth Circuit?
Texas and federal officials have expressed
doubts that the U.S. Fifth Circuit Court of
Appeals decision in Ayers v. Fordice will
affect efforts undertaken by Texas officials
to adopt race-neutral policies in its colleges.
Although federal education officials are
evaluating whether Texas has met the
standard set by the Supreme Court in the
Fordice case as well as Title VI of the 1964
Civil Rights Act, state officials say they
continue to be bound by Hopwood. In
Hopwood v. The State of Texas, the Fifth
U.S. Circuit Court struck down an
affirmative action admissions policy at the
University of Texas law school, a decision
that has been interpreted by the state
attorney general as prohibiting any use of
race in higher education policy.
Rick Miller, a spokesman for the U.S.
Department of Education, said department
officials don’t believe the Ayers v. Fordice
ruling will have any impact on how the 1996
Fifth U.S. Circuit Court decision in
Hopwood is being interpreted by Texas
officials. He said education department
officials are reviewing the decision to
determine its full policy implications.
Alvin Chambliss Jr., lead attorney for
the plaintiffs in the Fordice case, disagrees.
“Fordice trumps Hopwood.” he said, adding
that unlike in Hopwood, the Fifth Circuit
ruled in Fordice that diversity is important.
(For his analysis, see Hopwood and Ayers v. Fordice:
The Beginning Of the End?”)
Sonya Sanchez, a spokeswoman for the
Texas attorney general’s office, said that
based on an informal review by a staff
attorney in the attorney general’s office, the
April 23 Ayers v. Fordice decision does not
appear to have any impact on Texas’s
adoption of race-neutral policies in its
higher education system. Sanchez said the
attorney general’s office has not considered
launching an official review of the Ayers v.
Fordice decision because there’s been no
request by Texas officials to do so. By not
formally reviewing the decision, the state of
Texas will continue to follow the attorney
general’s interpretation of the Fifth Circuit
Court’s decision in Hopwood, according to
Sanchez.
Since last year, Texas state officials
have scrambled to adopt race-neutral
admissions and financial aid policies in the
state’s public higher education system.
Texas officials have done so because the
Fifth Circuit decision’s in Hopwood banned
race as a factor in University of Texas Law
School admissions. In February 1997, Texas
Attorney General Dan Morales formally
declared that Texas public universities
“would employ only race-neutral criteria in
administering their internal policies,
including admissions, financial aid,
scholarships, fellowships, recruitment and
retention. “
“In light of the opinion, we have once
again advised our state universities to
employ only race-neutral criteria in the
administration of their policies. Doing
otherwise could expose institutions and
individuals alike to potential liability for
actual and punitive damages,” Attorney
General Morales wrote in February.
Lynn Rodriguez, general counsel of the
Texas Higher Education Coordinating Board,
said she did not believe the circumstances of
the Mississippi case could be applied to the
interpretation of Hopwood. “I think it’s too
far of a stretch,” Rodriguez said. The
respective decisions, she said, were
narrowly tailored by the U.S. Fifth Circuit
Court to address different state higher
education systems.
The Hopwood interpretation by
attorney general Morales has stirred fervent
opposition among numerous officials and
legislators in Texas. Earlier this year, a
group of state of Texas legislators sought
intervention by federal education officials to
force a reversal of the Attorney General’s
position on Hopwood. The legislators have
argued that Texas is obligated to use
race-based affirmative action to remedy prior
discrimination in higher education. They
have said that the 1992 Supreme Court
decision in Ayers v. Fordice and the 1978
Supreme Court decision in Regents of the
University of California v. Bakke permits
such remedies.
In March, the Department of
Education’s Office for Civil Rights informed
Texas state officials that it would open a
review “to determine whether any vestiges
of prior discrimination are causing
discrimination to continue” in Texas.
According to Norma Cantu, Assistant
Secretary in the Office for Civil Rights at
the Department of Education, the “review is
being conducted under the standards set out
by the Supreme Court in 1992 in the
Fordice case regarding the obligation of
formerly segregated systems of higher
education to eliminate vestiges of those old
systems.”
Karin Chenoweth, B. Denise Hawkins, and Andy
Kanengizer contributed to this story.
COPYRIGHT 1997 Cox, Matthews & Associates
© Copyright 2005 by DiverseEducation.com
