Appeal from the United States District Court for the Northern District of Mississippi – excerpts from the Fifth US Circuit Court of Appeals’ ruling in the case of Ayers v. Fordice - Higher Education

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Appeal from the United States District Court for the Northern District of Mississippi – excerpts from the Fifth US Circuit Court of Appeals’ ruling in the case of Ayers v. Fordice

by Diverse Staff

April 23, 1997
Before KING, JOLLY, and DENNIS–Circuit
Judges.
KING, Circuit Judge:

This case concerns the obligation of the State of
Mississippi and the other defendants to dismantle
the system of de jure segregation that was
maintained in public universities in Mississippi.

After we heard the initial appeal of this case in
1990, the Supreme Court established, for the first
time, the standards for determining in the
university context whether a state has met its
affirmative obligation to dismantle its prior de jure
system. We now review the district court’s ruling
following trial on remand to determine whether it
erred in its application of these standards.
For the reasons set forth below, we affirm in
part, reverse in part, and remand the case to the
district court for further proceedings consistent
with this opinion.

I. BACKGROUND

Mississippi’s system of public four-year universities was formally
segregated by race from its inception in 1848 through 1962, when the first
black student was admitted to the University of Mississippi by order of this
court. The racial identifiability of Mississippi’s eight public universities
changed little during the decade following the landmark admission of James
Meredith. The student composition of the University of Mississippi,
Mississippi
State University, Mississippi University for Women, University Of Southern
Mississippi, and Delta State University (collectively, “historically white
institutions” or “HWIs”) remained almost entirely white, while that of
Jackson
State University, Mississippi Valley State University, and Alcorn State
University (collectively, “historically black institutions” or “HBIs”)
remained
almost entirely black. The racial identifiability of these institutions
persists to the present.

Private plaintiffs initiated this class action in 1975, complaining that
Mississippi was maintaining a racially dual system of higher education in
violation of the Fifth, Ninth, Thirteenth, and Fourteenth Amendments to the
United States Constitution and Title VI of the Civil Rights Act of 1964. The
United States intervened as plaintiff and alleged violations of the Equal
Protection Clause of the Fourteenth Amendment and Title VI.
For twelve years the parties attempted to resolve their differences through
voluntary dismantlement of the prior segregated system. Unable to achieve
ultimate agreement, the parties proceeded to trial in 1987. The district
court
ruled that Mississippi had discharged its affirmative duty to dismantle the
former de jure segregated system of higher education through its adoption and
implementation of good-faith, race-neutral policies and procedures in student
admissions and other areas. Sitting en banc, this court affirmed. The United
States Supreme Court granted certiorari.

The Supreme Court vacated the judgment and remanded for further
proceedings, holding that the mere adoption and implementation of
race-neutral
policies was insufficient to demonstrate complete abandonment of the racially
dual system. The Court stated that even after a State dismantles its
segregative
admissions policy, there may still be state action that is traceable to the
State’s prior de jure segregation and that continues to foster
segregation….
If policies traceable to the de jure system are still in force and have
discriminatory effects, those policies too must be reformed to the extent
practicable and consistent with sound educational practices.

Applying this standard, the Court identified admissions standards, program
duplication, institutional mission assignments, and continued operation of
all
eight public universities as a nonexclusive list of “constitutionally
suspect”
remnants of the prior de jure system, “for even though such policies may be
race
neutral on their face, they substantially restrict a person’s choice of which
institution to enter, and they contribute to the racial identifiability of
the
eight public universities. Mississippi must justify these policies or
eliminate
them.” The Court directed that these and “each of the other policies now
governing the State’s university system that have been challenged or that are
challenged on remand” be examined “in light of the standard that we
articulate
today.”

On remand, the district court ordered each party to submit proposed remedies
“to resolve the areas of the State’s liability pursuant to the Supreme Court
mandate.” Without conceding liability, defendant Board of Trustees of State
Institutions of Higher Learning (the “Board”) responded by presenting a
detailed proposal for modification of the higher education system. This
proposal contained, among other provisions, uniform standards of admission
for
all universities, as well as a plan to merge Delta State University and
Mississippi Valley State University into one institution to serve students in
the Mississippi Delta.

The private plaintiffs and the United States (collectively, “plaintiffs”)
responded by insisting that the range of constitutionally suspect policies
and
practices to be examined on remand had yet to be determined. Pursuant to a
subsequent court order, plaintiffs identified the following policies and
practices for examination: admissions standards that allegedly deny black
students equal access to higher education and tend to channel black students
to
the HWIs; the use of ACT scores as a basis for awarding undergraduate
scholarships at the HWIs; maintenance of institutional mission assignments
that
largely follow historical racial designations; funding policies that
disproportionately benefit the HWIs; allocation of academic programs that is
unfavorable to the HWIs; allocation of land grant programs between Alcorn
State
and Mississippi State that is unfavorable’ to Alcorn; duplication of HBIs’
programs and course offerings at the HWIs; maintenance of facilities at the
HBIs that are inferior to those at the HWIs; employment practices that
perpetuate the racial identifiability of the universities and compensate
faculty at the HBIs at a lower rate than faculty at the HWIs; maintenance of
all eight institutions; and practices that limit the participation of black
persons in system governance. Trial commenced on May 9, 1994, following
lengthy
attempts at settlement.

After ten weeks of testimony, the district court made additional findings of
fact and conclusions of law. The district court found vestiges of de jute
segregation in the areas of undergraduate admissions, institutional mission
assignments, funding, equipment availability and library allocations, program
duplication, land grant programs, and number of universities. The district
court
entered a remedial decree on March 7, 1995.

The remedial decree enjoins defendants from maintaining remnants of the prior
system and engaging in practices impeding desegregation. Specific relief
includes adoption of the uniform admissions standards proposed by the Board
and
allocation of additional resources to Jackson State University and Alcorn
State
University. The district court did not order implementation of the Board’s
proposal to consolidate Delta State University and Mississippi Valley State
University. The decree establishes a Monitoring Committee to monitor
implementation of the terms and obligations imposed by the decree. The
Monitoring Committee is to consist of three disinterested persons with
experience in the field of higher education, agreed upon by the parties and
appointed by the court. The Monitoring Committee is to receive and evaluate
reports required of defendants and make recommendations to the district
court,
which has retained jurisdiction over the action.

Plaintiffs now contend that the district court left in place practices that
are traceable to the prior dual system and that have discriminatory effects
and
adopted reforms proposed by the Board without examining the soundness or
practicability of alternative, less discriminatory proposals. Issues on
appeal
encompass undergraduate admissions standards, scholarship criteria,
enhancement
of historically black universities, system governance, and employment, No
party appeals the district court’s rejection of the Board’s consolidation
proposal.

II. STANDARD OF REVIEW

The standard set forth by the Supreme Court in Fordice guides our review
of the district court’s judgment, Fordice established that “a State does not
discharge its constitutional obligations until it eradicates policies and
practices traceable to its prior de jute dual system that continue to foster
segregation.” More specifically, “[i]f the State perpetuates policies and
practices traceable to its prior system that continue to have segregative
effects — whether by influencing student enrollment decisions or by
fostering
segregation in other facets of the university system — and such policies are
without sound educational justification and can be practicably eliminated,
the
State has not satisfied its burden of proving that it has dismantled its
prior
system.”

We have read Fordice to require that “each suspect state policy or practice
be analyzed to determine whether it is traceable to the prior de jure system,
whether it continues to foster segregation, whether it lacks sound
educational
justification, and whether its elimination is practicable.” The State’s
liability depends upon these factors.

Once liability is found, the offending policies and practices “must be
reformed to the extent practicable and consistent with sound educational
practices. [S]urely the State may not leave in place policies rooted in its
prior officially segregated system that serve to maintain the racial
identifiability of its universities if those policies can practicably be
eliminated without eroding sound educational policies.” Accordingly, we have
interpreted the directives of Fordice “as recognizing the need to consider
the
practicability and soundness of educational practices in determining remedies
as well as in making an initial determination of liability.”

We apply the directives of Fordice in conjunction with general standards of
appellate review. This appeal challenges elements of the district court’s
remedial decree and implicates several of its findings and conclusions. We do
not disturb the district court’s findings of fact unless they are clearly
erroneous, although we freely reassess its conclusions of law Linder the de
novo standard of review. A third standard applies to our review of the
remedial
decree itself. A desegregation remedy is an exercise of a trial court’s
equitable power and as such is reviewable, within the context of Fordice, for
abuse of discretion.

III. DISCUSSION

Admissions Policies and Practices

We agree with plaintiffs that it would be inappropriate to remedy the
traceable, segregative effects of an admissions policy in a system originally
designed to limit educational opportunity for black citizens by adopting a
policy that itself caused a reduction in meaningful educational opportunity
for
black citizens. We do not, however, understand the district court to have
done
so. The district court considered and rejected alternative proposals as
educationally unsound, and expressly contemplated that the remedial route to
admission could alleviate any potential disproportionate impact on those
black
students who are capable, with reasonable remediation, of doing college level
work.

Fordice does not require that all students who would have been admitted
under the prior, unconstitutional admissions standards be admitted under the
reformed admissions standards without regard to the educational soundness of
the reformed standards. Instead, the district court’s mandate under Fordice
was
limited to reforming traceable, segregative policies “to the extent
practicable
and consistent with sound educational practices.” Having found admissions
policies and practices to be traceable to the de jure system and to have
present
segregative effects, the district court properly focused its consideration of
alternative admissions policies on their educational soundness and potential
to
eliminate existing segregative effects; its focus, in turn, on ability to do
college level work is consistent with both the evidence as presented by
plaintiffs and Fordice.

Rejection of plaintiffs’ proposals

We realize that no set of standards is without its flaws. Significantly, as
discuss below, the standards that the district court did adopt provide
alternative route to admission that does not rely on ACT scores whatsoever.
district court’s decision to order implementation of this system, rather than
dilute standards for regular admission, was a proper exercise of its
discretion.
Reliance on spring screening and summer remedial program.

The district court recognized the likelihood that the Board’s standards would
reduce the number of black students eligible for regular admission as
compared
to then-prevailing standards, and chose to adopt them only in conjunction
with
the additional opportunity to gain admission through the spring screening and
summer remedial program. The district court was unable to conclude that the
new standards, which provide an alternative route to admission that does not
rely on ACT scores whatsoever, would actually reduce the total number of
black
students eligible for admission either as regular or remediated admittees. In
light of the district court finding that lowering admissions standards “as
was
done at the HBIs after the 1987 trial” is educationally unsound, the court
apparently determined that to the extent any reduction in the number of black
students eligible for admission relative to post-1989 standards does take
place, it may reflect the educational unsoundness of prior policies. As
contemplated, the new standards should result in the identification and
admission of those applicants who, with reasonable remediation, can do
college
level work. This is consistent with Fordice’s mandate of a reformed
admissions
policy that is practicable an educationally sound.

The district court also recognized that the spring screening and summer
remedial program was untested and its standards not fully established at the
time of trial. We think that the program was sufficiently defined that the
district court did not abuse its discretion in ordering its implementation.
If,
however, as plaintiffs suggest may be the case, the spring and summer program
is unable to any significant degree to achieve its intended objectives of
identifying and admitting otherwise eligible applicants — i.e., applicants
who
could, with reasonable remediation, successfully complete a regular academic
program — for whatever reason, then the program must be reevaluated. The
district court’s proper retention of jurisdiction over this action indicates
its intent to examine this important component of the admissions system once
the relevant data becomes available. If the district court ultimately
concludes
that the spring screening and summer remedial program (as it maybe modified)
is
unable to any significant degree to achieve its objectives, then the court
should, if possible, identify and implement another practicable and
educationally sound method for achieving those objectives.

Elimination of existing remedial courses

We have thus far addressed the spring and summer program as a component of
the reformed admissions policy. We turn now to the argument made by the
plaintiffs that the district court erred in relying upon the summer remedial
program to replace the existing remedial courses in the absence of a finding
that the summer program could achieve the same results as the universities’
existing remedial courses in enabling students to succeed in and graduate
from
college.

Remedial courses may be an important part of the admissions policy at any
school in which a significant number of students are not predicted to achieve
a
C average during their first year.

The plaintiffs did not challenge the State’s existing remediation policies
as traceable to the de jure era. There was therefore no requirement, under
Fordice, for reformation of those policies as such. However, the Board’s
proposed admissions standards treated the adoption of the summer program and
the elimination of the existing remedial courses as components of its
admissions standards, and the district court, in ordering the implementation
of
the Board’s proposal, effectively did the same. The principle that apparently
underlies the Board’s admissions policy (and, therefore, the district court’s
decision) is that, in the case of any applicant, what can and cannot be
accomplished with reasonable remediation is a key element of the admissions
decision.

Clearly, this principle is educationally sound. But the court’s action in
eliminating the existing remedial courses can legitimately he challenged by
plaintiffs as an inappropriate feature of the court’s admissions remedy. We
have recognized that there are some tensions in the district court’s findings
in this regard. In the light of these tensions and the absence of specific
consideration of the justification for, or reasonableness of, eliminating
these
unchallenged courses, we are sufficiently concerned about the district
court’s
exercise of its discretion in this regard to direct the court on remand to
reconsider its decision to eliminate these courses. On remand, the district
court should determine if remedial courses are needed to help ensure that
students admitted under the new admissions criteria have a realistic chance
of
achieving academic success.

Timing

The United States argues that it may take several years for the summer
program to be thoroughly implemented, tested, and evaluated and argues that
during the interim, an admissions policy that minimizes any reduction in the
number of black students eligible for regular admission should be installed.
We
reject this argument. The summer program has sufficient promise, on the
present
state of the record, to allow it “to prove itself in operation,” should the
district court decide to continue on that path. There is no reason why,
however, reconsideration of the district court’s decision to eliminate the
existing remedial courses cannot be done promptly. We intimate no view on the
outcome of that reconsideration.

Scholarship Policies

Analysis

[T]he scholarships alleged to be traceable to de jure segregation and to
have present discriminatory effects are as follows:

DELTA STATE UNIVERSITY

First-time freshman enrollment 1992-93: 21% black



Scholarship Minimum Number of

Name ACT Score Recipients

Black White Total



Dean's and

Presidential 26 2 160 162

1% black



Scholarship Dollars

Name Received

Black White Total



Dean's and

Presidential $1,375 $131,175 $132,550

1% black

HBIs in other formally de jure segregated states have been successful in
integrating their student bodies through a variety of approaches and
measures.” indeed, evidence presented by the United States If and
defendants indicates that well-planned programs that respond to the
particular needs and interests of local populations can help to
desegregate historically black institutions.

Under the remedial decree, merger [of Mississippi Valley State] with
DSU remained a possibility that depended upon the Board’s study of options
for desegregating the Delta region. We cannot conclude that the district
court abused its discretion in failing to order the above relief when the
very existence of Mississippi Valley State as an independent institution
remained in question. At present, however, all parties apparently have
concluded that merger of Mississippi Valley State with Delta State is
neither required nor desired. On remand, the district court must clarify
the status of the merger proposal. If the district court confirms that
merger will no longer be pursued, then the district court must address the
continuing segregative effects of Mississippi Valley State’s limited
mission and incorporate into its remedial decree a provision requiring the
Board, on a continuing basis, to study and report to the Monitoring
Committee on new academic programs that have a reasonable chance of
increasing other-race presence at Mississippi Valley State.

Land Grant Programs Analysis

The district court’s finding that it would be impractical and
educationally unsound to alter the current method of providing research
and extension services is well supported by expert testimony in the
record. As the district court found, the primary source of federal funds
for agricultural research is the Hatch Act, and for cooperative extension
funds the Smith-Lever Act. Substantial evidence indicates that federal
(and matching state) funds appropriated through these acts typically are
administered by a single institution in each state and that it would be
unsound to administer in Mississippi either two separate research programs
with Hatch funds or two separate extension programs with Smith-Lever funds.

Duplication of Programs Analysis

No party contests the district court’s finding that program duplication
between proximate racially identifiable institutions is traceable to de
jure segregation and continues to have segregative effects. We therefore
accept this finding as supported by the record and conclude that the
United States’s argument as it applies to Mississippi Valley State is well
taken. The district court itself stated that it would order a study of
program duplication between Mississippi Valley State and Delta State, yet
failed to incorporate any such provision into the remedial decree. Again,
the omission may have been occasioned by the continuing possibility that
Mississippi Valley State would be merged with Delta State. We cannot
conclude that the district court abused its discretion in failing to order
a study of program duplication at Mississippi Valley State when the
continued existence of Mississippi Valley State remained in question.
However, upon conclusion of the inquiry we have ordered above, if the
district court confirms that merger will no longer be pursued, then the
district court must incorporate into its remedial decree a provision
requiring the Board to study and report to the Monitoring Committee on
unnecessary program duplication between Mississippi Valley State and Delta
State. The United States’s argument as it applies to nonproximate
institutions, on the other hand, is not briefed sufficiently for this
court to review this aspect of the district court’s ruling for error.

Funding Analysis

We find the district court’s ruling to be supported by the record and
consistent with Fordice. Fordice required the district court to examine
challenged policies and practices to determine if they had roots in the de
jure era. The district court did not clearly err in finding that the
funding formula itself is not traceable to de jure segregation. Unlike the
previous formula, which allocated funds based on mission designations, the
present formula allocates funds as a function of the size of each
institution’s enrollment, faculty, and physical plant. While the formula
responds to conditions that to a significant degree have resulted from the
mission designations (and consequently results in the HWIs receiving a
greater proportion of funds), the manner in which the formula does so is
guided by valid educational concerns and is not linked to any prior
discriminatory practice.

Plaintiffs argue that the district court should have considered
adjustments to the funding formula in two respects, neither of which has
merit. First, plaintiffs argue that the formula should be adjusted for the
higher cost of remedial education, citing evidence that a
disproportionately high number of lack students in Mississippi are
underprepared for college and that such an at adjustment would encourage
the HWIs to provide remedial courses and to attract black students and
would aid the HBIs in providing the remedial instruction needed by their
students. Plaintiffs have not, however, identified any traceable policy
related to the funding of remedial education, nor have they identified any
record evidence that remedial education as structured Linder the remedial
decree is or is likely to be underfunded; the decree itself requires the
State to provide funding for the summer program. If, after examination of
the results of the summer program implementation, the district court finds
that the program needs to be modified or expanded, then the district court
should order appropriate funding at that time.p
Second, plaintiffs argue that the funding formula should be adjusted to
take into account the proportion of students at a university who are in
need of financial aid. As it currently operates, the funding formula
provides funds for scholarships and fellowships (which are only a portion
of the total financial aid available to students at each university) on
the basis of each university’s tuition income. The district court found
that this practice is neither unusual nor unique to Mississippi, but that
in Mississippi the universities that charge the highest tuition — the
three comprehensive HWIs — also generally have the largest proportion of
students who have little or no need for financial assistance. Again,
however, plaintiffs have identified no traceable policy concerning the
adequacy of scholarship and fellowship funds provided to the HBIs. Any
potential segregative effects of the failure of the formula to take
financial need into account is a function of the socioeconomic status of
black applicants, not a traceable policy of the de jure system.

The court’s findings and conclusions concerning equipment funding
are more difficult for us to interpret. The court found that the quality of
fixed equipment, such as science lab furnishings, at the HBIs is inferior
to that at the HWIs. Likewise, the court found that the technical and
scientific equipment at the HWIs is “more advanced and generally in better
condition than that of the HBIs.” We are unable to determine based on this
record, however, whether these equipment disparities implicate the
funding formula, line item appropriations for capital improvements, or
self-generated funds. Nor are we able to determine the reasons for the
disparities, which the district court opinion leaves unexplained. The
court’s determination that policies and practices governing equipment
availability follow the mission assignments is perplexing in view of
overlaps in the missions of the eight universities. Each university
offers, for instance, Undergraduate instruction. Undergraduate instruction
in foreign languages, chemistry, biology, or computing, to take a few
examples, benefits from the availability of appropriate equipment.

Libraries likewise benefit from the availability of modern technological
equipment. There is no apparent reason why the mission assignments,
insofar as they relate to common university features such as these, should
result in disparities in equipment quality between the HBIs and the HWIs.
Put somewhat differently, if the different mission assignments are adduced
as a reason for marked disparities in equipment that is necessary or
desirable for the undergraduate education that is provided at all eight
universities, then they may indicate the existence of a policy or practice
traceable to the de jure era that has present segregative effects in that
equipment quality may affect student choice, We therefore remand the issue
of equipment funding to the district court for further fact finding on the
causes of the disparities. To the extent the disparities are attributable
to the mission assignments and have segregative effects that will be
reduced by additional funding, relief may be in order.

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s findings of
fact, conclusions of law, and remedial decree except as follows:

1. In affirming the district court’s implementation of the Board’s
admissions standards, we do not affirm the elimination of the remedial
courses previously offered at each of the eight universities. We remand
this issue for immediate reconsideration in the light of this opinion. If
the district court concludes that any or all of the previously offered
remedial courses should be reinstated, the same should be implemented,
with appropriate funding, to be effective beginning with the academic year
1997-98. The district court should provide findings of fact and
conclusions of law in support of its decision regarding reinstatement.

2. We reverse the district court’s finding that the use of ACT cutoff
scores as a criterion for the award of scholarships at the HWIs is not
traceable to the de jure system and does not currently foster segregation.
we remand for determination of the practicability and educational
soundness of reforming this aspect of the undergraduate scholarship
policies at the HWIs and the implementation, if necessary, of appropriate
remedial relief to be effective beginning with the academic year 1998-99.

3. We direct the district court on remand to clarify the status of the
Board’s proposal to merge Mississippi Valley State with Delta State and,
if the district court confirms that merger will no longer be pursued, to
vacate paragraph 12 of the remedial decree and to incorporate into the
remedial decree (a) a provision directing the Board to study and to report
to the Monitoring Committee on new academic programs that have a
reasonable chance of increasing other-race presence at Mississippi Valley
State and (b) a provision requiring the Board to study and to report to
the Monitoring Committee on unnecessary program duplication between
Mississippi Valley State and Delta State.

4. We direct the district court on remand to incorporate into the
remedial decree a provision directing the Board to study and report to the
Monitoring Committee on new academic and land grant programs that have a
reasonable chance of increasing other-race presence at Alcorn State.

5. On the issue of accreditation, the district court should determine
the status of current efforts to achieve accreditation of existing
business programs at Jackson State and order appropriate relief, if
necessary, to ensure that the Board is taking steps commensurate with its
role in this accreditation process.

6. We remand the issue of equipment funding to the district court for
further factfinding on the cause and segregative effect of the
disparities, and, if necessary, the implementation of appropriate relief.
We understand the district court’s continuing jurisdiction to encompass
the evaluation of the effectiveness of the spring screening and summer
remedial program, as a component of the admissions system, in achieving
its intended objectives of identifying and admitting those students who
are capable, with reasonable remediation, of doing college level work but
who fail to qualify for regular admission. If the district court
ultimately concludes that this program (as it may be modified) is unable
to any significant degree to achieve its objectives, then the court
should, if possible, identify and implement another practicable and
educationally sound method for achieving those objectives in sufficient
time for the academic year 1999-2000. If, after examination of the results
of the summer program implementation, the district court finds that the
program needs to be modified or expanded, then the district court should
order appropriate funding at that time.
Any further appeals shall be to this panel.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further
proceedings consistent with this opinion. Each party shall bear its own
costs.

COPYRIGHT 1997 Cox, Matthews & Associates



© Copyright 2005 by DiverseEducation.com

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