Knight v. State of Ala.

TABLE OF CONTENTS

INTRODUCTION.1045

STATEMENT OF THE

CASE.1047

CONTENTIONS OF THE

PARTIES.1051

A. Knight

Plaintiffs.!.1051

B. The United States

Government_'.1053

C. State

Defendants.1055

D. Auburn

University.1055

E. The University of Alabama

System.1060

F The Troy State University

System.1060

G. State Board of

Education.1061

H. The University of North

Alabama.1061

FINDINGS OF FACT

GENERAL OVERVIEW OF HIGHER EDUCATION IN

ALABAMA.1061

A.

Enrollments. 1061

B. Federal Financial Assistance For Alabama’s Higher Education System

1065

*1040

SUMMARY OF THE HISTORICAL

EVIDENCE. LÍ3

ZO

O rH

A. The Nineteenth

Century. CO O t — H

1. The Antebellum Period. co CO O

2. The Reconstruction Period. tO iH

3. The Early Establishment of the Board of Trustees N

Alabama and Auburn University.1072

i. Auburn University.1072

ii. The University of Alabama.1072

4. Blacks’ Early Efforts for Equality Through Education.1073

5. Blacks’ Early Efforts to Establish Colleges.1074

i. Alabama State University.1074

a. The State’s Nineteenth Century Promise of a University Education for Blacks at Alabama State

University.1082

ii. Alabama Agricultural & Mechanical University.1084

6. Educational Access and Black Political Power: The End of the Nineteenth Century.1089

B. The Twentieth

Century.1090

L Disenfranchisement's Impact on Black Education .1090

2. Black Higher Education and the Progressive Period.1091

3. The Period Between the World Wars .1095

4. Alabama’s Response to Federal Enforcement of Separate But Equal 1097

5. Massive Resistance to Integration.1103

i. The Legislature.1103

ii. The University of Alabama.1105

iii. Auburn University 1950-1965 . 1109

6. Four Year Teachers’ Colleges.1112 i. The Use of the ACT and Heightened Admissions Requirements 1112

a. University of

Alabama.1113

b. Auburn University

.1115

ii. Decentralizing Governance of the Traditionally White Teacher Colleges.1116

7. Importance of Alabama's HBU’s to the Civil Rights Movement.1117

8. The History of Branch Campus Development.1119

i. The University of Alabama at Huntsville.1119

a. Origin and

Development.1119

b. Extension Center

Movement.1119

c.

Early

Growth.1120

d. Federal Government

Support.1121

ii. University of Alabama at Birmingham.1126

iii. Troy State University at Montgomery.1126

iv. Auburn University at Montgomery.1127

a. Origin and

Development.1127

b. Early History

.1128

c.

The ASTA

Decision.1130

d. AUM In the

Present.1133

9. The History and Development of the Alabama Commission on Higher Education.1136

i. Origins.1136

ii. Statutory Responsibilities.1137

10. Creation of the ASU and AAMU Boards of Trustees.1139

C. History of the Early Land Grant System in

Alabama.1140

1. The 1862 Morrill Act.1140

2. The 1890 Morrill Act.1145

3. The Hatch Act.1146

4. The Smith-Lever Act.1147

CURRENT ADMISSIONS

STANDARDS.1153

A. The ACT

Examination.1153

L Background of the ACT College Admission Test.1153

2. The ACT Test is Used to Examine Students’ Academic Preparation .. 1153

B. The Development of the ACT

Test.1154

C. The ACT is not a Racially Discriminatory

Examination.1155

*1041

D. The Use of the ACT by Colleges and Universities in

Alabama.1156

L Admission Requirements for Regularly Admitted Freshmen..1156

i. The University of Alabama System. 1156

ii. Auburn University.1157

iii. Troy State University.1158

2.Alabama’s HBU’s Use of the ACT.1158

E. Non-traditional College

Admissions..1159

L Conditional Admissions at the University of Alabama System.1159

i. University of Alabama at Huntsville.1159

ii. University of Alabama at Birmingham.1160

iii. University of Alabama at Tuscaloosa..1160

2. Conditional Admissions at Auburn University.1161

i. Main Campus.1161

ii. Auburn University at Montgomery.1161

3. Conditional Admissions at the Troy State University System ...1162

i. Main Campus .. 1162

ii. Troy State University at Montgomery.1162

4. Admission by Transfer.1162

i. University of Alabama System.1162

ii. Auburn University Main and Montgomery Campuses.1163

iii. Troy State University Main and Montgomery Campuses.1163

iv. Alabama A & M University.1163

v. Alabama State University.¡.1163

F. Impact of Regular Admission Criteria on' Blacks Applying tó HWUs

1163

G. Auburn University’s Admissions Requirements Have a Disproportionate Impact on Black

Applicants.1165

LAND GRANT

ISSUES.1167

A. The National Land Grant

Model.1167

B. Alabama’s Land Grant

System.1168

L Alabama’s Agricultural Experiment Station.1168

2.Alabama’s Cooperative Extension Service ...1169

C. AAMU’s Land Grant Expansion and Changing

Appropriations.1170

D. Alabama’s Land Grant System is not Currently a Vestige of Discrimination

.1171

RACIAL COMPOSITION OF FACULTY AND ADMINISTRATIVE POSITIONS

1172

A. Contentions and

Defenses.1172

B. Auburn

University.1173

L Black Faculty Recruitment.1173

2. Black Faculty Employment.1173

3. Black Administrative Employment...•.1174

C. Auburn University at

Montgomery...1175

L Black Faculty Recruitment.1175

2. Black Faculty Employment.1175

3. Black Administrative Employment.1176

D. The University of Alabama

System.1176

L University of Alabama Main Campus.1176

i. Black Faculty Recruitment.1176

ii. Black Faculty Employment.1177

iii. Black Administrative Employment. 1178

2. University of Alabama at Birmingham ...'.1178

i. Black Faculty Recruitment.1178

ii. Black Faculty Employment.1180

iii. Black Administrative Employment.1181

3. University of Alabama at Huntsville.....1181

i. Black Faculty Recruitment. 1181

ii. Black Faculty Employment.1182

iii. Black Administrative Employment.1183

E. Troy State University

System.1183

1. Troy State University Main Campus.1183

2. Troy State University at Montgomery.1183

F. University of North

Alabama.•..1184

G. Alabama State

University.1184

H. Alabama A & M

University...1184

*1042

I. Calhoun State Community

College.1184

J. Athens State

College.1185

K. Jacksonville State

University.1185

L. Livingston

University.1185

M. The University of

Montevallo.1186

N. University of South Alabama

.1186

O. Comparative

Chart.1186

FACULTY AND ADMINISTRATIVE

EMPLOYMENT.1187

A. The Appropriate Labor Pool for Faculty Positions

.1188

B. Utilization of Faculty Recruitment

Procedures.1190

L Auburn University .1190

2. Montevallo and Livingston Universities.1191

C. Administrative

Employment.1191

BLACK FACULTY PROMOTION AND

RETENTION.1192

THE ALABAMA COMMISSION ON HIGHER EDUCATION’S FUNDING FORMU-LAE

.1192

A. The Components of ACHE’s Funding

Formula.1192

B. Comparison of Alabama’s Funding Formula with other States’ Formu-lae

.1200

C. Description of How ACHE’s 1990-1991 RAP Formula

Works.1202

D. Comments on Alabama’s Funding

Formula.1205

STATE FUNDING FOR HIGHER

EDUCATION.1208

A.

Background.1208

B. Importance of Funding to a University or

College.1209

C. Historical Funding

Patterns.1209

D. Historical Differences Cannot Be Made Up

Overnight.1227

E. Headcount Funding

1941-1969.1232

F. Funding of Institutions per

FTE.1234

G. Costs of Instructional

Programs.1259

H. The “$4 Million" and Its Impact on the Funding

Comparisons.1268

I. Current Method of

Funding.1270

THE ADEQUACY OF CAMPUS FACILITIES ON THE

HBU’S.1271

A. Facilities and Higher

Education.1271

B. The Plaintiffs’

Allegations.1272

C. Capital Funding

Process.1272

L State Funding Process.1272

2. Non-State Funding Process.1273

D. ACHE’s Capital Needs

Recommendations.1273

E. Legislative Capital

Outlay.1274

F. Institutional Autonomy Regarding Capital

Development.1275

G. The Plaintiffs’

Evidence.1276

H. Comparison of Capital Funding at Selected

Institutions.1276

L Facility Appearance at the Six Comparison Campuses.1278

2. The Era of Expanding Enrollments and State Support.1279

I The State Has Inadequately Funded the Capital Development of Its

HBU’s.1281

STUDENT CHOICE: MAKING ENROLLMENT

DECISIONS.1283

A. Student Choice In

General.1283

B. ACT Scores and Student

Choice.1284

C. Factors Other Than Academic Preparation Have An Influence On Student

Choice.1286

STUDENT ENROLLMENT: THE RACIAL COMPOSITION OF ALABAMA’S COLLEGES AND

UNIVERSITIES.1286

A. Contentions of the Parties

.1286

B. Knight Plaintiffs’

Evidence.1287

C. The Defendants’ Enrollment

Evidence.1288

L Auburn University .1288

2. Auburn University at Montgomery.1288

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3. The University of Alabama System.1288

i. General Enrollment Data.1288

ii. Dr. George Borjas’ Testimony.1289

a. Borjas’ Conclusions Regarding Black Student Enrollment At

UA.1289

b. Borjas’ Conclusions Regarding Black Student Enrollment At

UAB.1289

c. Borjas’ Conclusions Regarding Black Student Enrollment At

UAH.1289

4. Enrollment In the State’s HBU’s.1291

6. Troy State University and Troy State at Montgomery.1291

6. The University of North Alabama.7.'.■.1291

D. Student Enrollment and Plaintiffs’ Claim of Vestiges of Segregation

1291

UNDERGRADUATE STUDENT

RECRUITMENT.1291

A. Auburn University

Recruitment.1292

B. The University of Alabama System

Recruitment.1298

L University of Alabama at Huntsville.1293

2. University of Alabama at Birmingham.1293

3. University of Alabama at Tuscaloosa?.1294

i. Minority recruitment efforts in the UA Admissions Office.1294

ii. Recruitment by UA Students .1295

iii. Minority recruitment efforts in the College of Engineering.1296

a. SECME and High School outreach

efforts.1296

b.

NAMERA.1296

c. Minority Engineering

.program.1297

d. Scholarships to support minorities in

Engineering.1297

e. Engineering student enrollment

facts.1297

iv. UA’s BioPrep Program.!.1298

BLACK UNDERGRADUATE RETENTION

RATES.1299

A. The University of Alabama

System.1299

L UA’s Various Retention Programs .1299

2.Financial Aid at UA.....1300

B. Auburn University

....1301

C. Other Predominately White Colleges and

Universities.1302

D. Retention and Graduation Rates at the

HBU’s.1302

L Alabama A & M University...1302

2. Alabama State University. ..■.... 1302

GRADUATE AND PROFESSIONAL SCHOOL ADMISSION AND RECRUIT

MENT....1303

A. Knight Plaintiffs’ and Allied Defendants’

Allegations.1303

B. The University of Alabama

System.1304

L Graduate and Professional School Enrollment.1304

2. Graduate and Professional School Recruitment.1304

3. Admissions Requirements....1306

C. Auburn

University.... 1307

1. Graduate School Enrollment.! 1307

2. Graduate School Recruitment.1307

D. Auburn University at

Montgomery.1307

INSTITUTIONAL CLASSIFICATION AND PROGRAM

APPROVAL.1308

A.

Introduction.1308

B. Classifying Institutions According to

Role.1308

C. Instructional Role

Matrices...1311

D. Program

Approval.1312

ACADEMIC PROGRAM

DUPLICATION.1313

A. Dr. Conrad’s

Analysis.1313

B. Defendants’ Critique of Dr. Conrad’s

Testimony.1316

C. Dr. Conrad’s Program Duplication Testimony is

Unpersuasive.1317

D. The Court’s Analysis of the Program Duplication

Claims.1319

L The University of Alabama at Huntsville.1321

i. Institutional Comparison between UAH and AAMU.1321

ii. Program Comparison.1322

a.

Education.1322

b.

Business.1324

*1044

2. Athens State College, Calhoun State Community College and Alabama

A & M University.1328

i. Institutional Profile.1328

a. Calhoun State Community

College. 1328

b. Athens State

College.1328

ii. Program Comparison.1328

a. Calhoun State Community College

.1328

b. Athens State

College.1329

3. Alabama State University and Auburn University at Montgomery —1329

i. Institutional Comparison between ASU and AUM.1329

ii. Program Comparison.1330

4. Troy State University at Montgomery and Alabama State University 1331

E.ACHE and New Program Approval

..1331

THE RACIAL CLIMATE ON THE

HWU’S...1331

MULTICULTURALISM AND THE

UNIVERSITY.1332

THE BOARDS OF

TRUSTEES.1333

A. Powers Given the Boards of

Trustees...1333

B. Plaintiffs’

Allegations.1333

TRANSFERS OF ACADEMIC CREDIT BETWEEN JUNIOR AND SENIOR COL

LEGES.1335

TECHNACENTER. 1336

ALABAMA’S SYSTEM OF HIGHER

EDUCATION.1340

COOPERATIVE PROGRAMS BETWEEN THE PROXIMATE INSTITUTIONS ..

1341

A. Alabama State University and Auburn University at

Montgomery— 1341

B. Troy State University at Montgomery and Alabama State University

1341

C. Alabama A & M University and the University of Alabama at HuntsvillelMl ' D. Alabama A & M University and Athens State College/Calhoun State

Community

College.1343

E. Extension of Previously Executed Consent

Decrees.1343

REMEDIAL OBJECTIVES OF THE KNIGHT

PLAINTIFFS.1343

A. Knight Plaintiffs’ Remedial

Issues.1344

B. Knight Plaintiffs’ Proposed Remedial

Decree.1348

CONCLUSIONS OF LAW

THE MEANING OF

“VESTIGES”.1352

THE CONSTITUTIONAL DUTY TO DESEGREGATE HIGHER EDUCATION..

1353

A. The Parties’

Contentions. 1353

L Plaintiffs .■.1353

2. Defendants.1353

B. An Introduction to .the Court’s View of the

Law.1354

C. The Scope of the Constitutional Duty to

Desegregate.1354

D. The Constitution Requires Alabama To Eliminate Vestiges of Discrimination Root and Branch to the Extent

Practicable...1356

E. Ayers v.

Attain.1358

F. Student Choice and the “Root and Branch”

Remedy.1359

G.

ASTA.1360

THE EQUAL PROTECTION CLAUSE AND MIXED MOTIVE DECISIONS ....

1360

DUTY TO DESEGREGATE UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF

196k.1361

A. Title VI and Its Regulatory

Framework.1361

B. Program-Specific Proof For Title VI Enforcement and the Civil Rights Restoration

Act.1363

THE DEFENSES OF RES JUDICATA AND COLLATERAL

ESTOPPEL.1365

A. Res

Judicata.■.1365

B. Collateral

Estoppel.1366

C. Auburn’s Defense Is Of No

Avail.1367

D. Lee v. Macon Does Not Prevent The Claims Against The

SBE.1367

SUMMARY OF THE ACTIONABLE VESTIGES OF DISCRIMINATION SURVIVING IN

ALABAMA.1368

*1045

THE ELEVENTH AMENDMENT AND THE COURT’S REMEDIAL POWERS..

1368

A. Eleventh Amendment

Jurisprudence.1368

B. The State’s Duty To Erradícate Vestiges Existing at the HBU’s Facilities

1370

THE CONSTITUTIONALITY OF ALABAMA CODE SECTION

16-50-20(a).1372

THE SCOPE OF THE COURT’S REMEDIAL

POWER.1377

REMEDIAL DECREE.1377

HAROLD L. MURPHY, District Judge.

ABBREVIATIONS

The following abbreviations are used in the Findings of Fact and Conclusions of Law.

Alabama A & M University; Alabama Commission on Higher Education; Alabama Public School and College Authority; Athens State College; Alabama State University; Auburn University; Auburn University at Montgomery; Calhoun State Community College; historically black university; historically white university;

1

Jacksonville State University; Knight Plaintiffs; Livingston University; Alabama State Board of Education; State of Alabama Defendants; Troy State University; Troy State University at Montgomery; University of Alabama, Tuscaloosa campus; University of Alabama at Birmingham; University of Alabama at Huntsville; University of Alabama System; University of Montevallo; University of North Alabama; United States of America; University of South Alabama. UA UAB UAH UAS UM UNA US USoA AAMU ACHE APSCA ASC ASU AU AUM cscc HHW C/2 W ttí tti

Record citations will be abbreviated as follows:

Trial Transcripts — [Witness] (date) [page];

e.g.,

Jones (10/10/90) 13.

Exhibits — [Party]X [no.], p. _;

e.g.,

UASX 1000, p. 13. Party abbreviations will be same as above.

Stipulations of fact — SOF 11 [number];

e.g.,

SOF II103.

INTRODUCTION

More than three hundred and fifty years ago, Africans were first brought to this country to be sold into slavery. Forbidden formal education, slaves served at the pleasure of their white masters and learned only the anguish of unrewarded toil. The “self-evident” truth contained within the Declaration Of Independence that all persons are created equal had no application to the slave. The slave was neither free nor equal. Commenting on whether the Framers of the Constitution considered slaves to be included within the phrase “We the People,” Chief Justice Taney, penned the following remarks in the

Dred Scott

case:

We think they are not, ... [and] were not intended to be included....

They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race ...; and so far inferior, that the negro might justly and lawfully be reduced to slavery for his benefit.

[Accordingly, a negro of the African race was regarded ... as an article of property, and held, and bought and sold as such....

*1046

Scott v. Sandford,

60 U.S. (19 How.) 393 , 405, 407-08, 15 L.Ed. 691 (1857)

quoted by,

Marshall, The Constitution’s Bicentennial: Commemorating the Wrong Document? 40 Vand.L.Rev. 1337, 1340 (1987).

The emancipation of the African American as property was accomplished at the conclusion of the Civil War with the ratification of the Thirteenth Amendment to the United States Constitution. The prize of freedom was effectively denied however, by the enactment of the Black Codes whose intent was the continued subordination of the newly freed slave. One of the forms of subordination was the rigid control by whites of black education. Most whites wanted blacks educated, if at all, only to the minimum level necessary to provide semi-skilled labor. Black educational institutions were under the complete control of white officials who, for the most part, shared the paternalistic view that black subordination was a natural condition that worked for the betterment of both races.

The history of black higher education in Alabama following the Civil War is not atypical. Strict white control was the hallmark of black higher education in the state until the 1970’s. For many years blacks were effectively denied the benefits of a collegiate education by the operation of two interrelated practices: the uncompromising segregation of the state’s white institutions and the limited educational mission assigned to the state’s black colleges. Concomitant to these two practices, there arose a host of policies and laws designed to institutionalize segregation while assuring the inferior status of black education. The case at bar is in large measure, about identifying and eliminating those segregative policies and practices which survived federally mandated integration.

These surviving policies and practices, referred to as vestiges of the

de jure

period of segregation, must be abolished root and branch if the mandate of the Constitution is to be satisfied. The obligation of the Court is to ensure that a student is free to choose any institution of higher education in Alabama unencumbered by the segregative practices which arose during the period of

de jure

discrimination. As a related element, the Court must be certain that students who choose to attend the state’s predominately black institutions are not, as a result, stamped with the badge of inferiority resulting from the history of segregation. The Court can accomplish its obligation by ordering actions which will remove the aura of mediocrity and eliminate the stigma of segregation. The Court, at least in part, can do this by ensuring adequate facilities and funding, and where necessary by ensuring that academic programs at the state’s historically black institutions are not unnecessarily duplicated by proximately located predominately white institutions.

The Court must also ensure that those African-American students who elect to attend one of the state’s predominately white institutions may do so without having to overcome barriers remaining from the dual system of higher education whose purpose was then the continuation of racial segregation and whose impact continues to be an impediment to full desegregation.

The issue is not whether the state universities to which African Americans have traditionally turned for college education in Alabama have limited missions because of prior state-sponsored discrimination, undoubtedly they do; rather, the issue is how does that limitation affect students who choose to attend the state’s predominately black institutions. The desire to use this litigation as a means of securing for the state’s predominately black universities educational missions comparable in size and content to those of the state’s largest institutions is unavailing. This case is not about institutional enhancement. If one attends an institution which does not have a full panoply of graduate and professional programs it does not mean that the education received there is inferior. The Constitution does not teach that because a historically black institution has suffered discrimination that it is entitled to an elevated academic mission. The danger of creating parallel universities in mission, one predominately black the other predominately white, cuts too close to the doctrine repudiated by

Brown v. Board of Education,

*1047

when the only reason for so doing is the racial discrimination suffered by the historically black institution. The Court must guarantee that the educational system in Alabama is nondiscriminatory and integrated, not that any particular institution has a certain educational mission.

Alabama has an extensive system of higher education. Many of the institutions within that system serve unique and vital roles. Alabama’s historically black universities have a long history of service to the state and country for which they and the state can justly be proud. Alabama State University and Alabama A & M University were on the cutting edge of the Civil Rights Movement of the 1950’s and 1960’s, and stood as beacons in the night, broadcasting the promise of the Constitution to millions of American citizens who were denied its protections.

Today these universities continue to serve the state and its citizens in numerous ways. They provide an educational environment in which students of not only the highest academic caliber can study, but also those who have been educationally deprived. Well developed remedial programs provide the educationally disadvantaged students with the opportunity and training necessary to successfully complete a college curriculum.

Likewise, many of the state’s predominately white schools also serve the nation and state well. The ignominious image of Governor George Wallace barring black enrollment at the University of Alabama is emblazoned on the American consciousness as a memorial to all that is wrong and pernicious with racial segregation. That image is, however, beginning to fade, not because of the passage of time, but because of the university’s affirmative efforts to deal positively with its segregative past. The university has made giant strides towards eliminating the. policies defended by Governor Wallace’s “stand in the school-house door” and is today, in many respects, on the fore of university race relations nationwide.

Other universities and colleges in Alabama which have not been under the glare of national attention like the University of Alabama have not fared as well, and there yet remain certain actions which these institutions must take to assure that all citizens, regardless of race, may choose a college whose segregative practices have been eliminated.

Finally, it must be noted, that great effort was exerted to move the parties towards a settlement in this action. The Court took the extraordinary step of holding a settlement conference during the middle of trial and ordered the attendance of the Governor, chief executive officer of each Defendant and representatives of the Plaintiffs. Unfortunately, the conference proved unsuccessful. Throughout the trial, the parties were reminded that the least desirable resolution of this action would be for the Court to develop a remedy. Many of the issues involved in this case essentially require political solutions. Alas, the failure of politics has left this matter with the Court.

STATEMENT OF THE CASE

This case commenced in 1978 when the Office of Civil Rights (“OCR”) of the United States Department of Health, Education and Welfare (now the Department of Education) began a Title VI compliance investigation of public higher education in Alabama (“the 1978 OCR investigation”).

The OCR case control card for the 1978 investigation identified the recipient of federal financial assistance under investigation as the “State Department of Education (University System).” No investigation was undertaken to determine what types of federal financial assistance were received by particular institutions in Alabama. No determination was made that the State Department of Education was the “recipient” in that investigation.

The procedure to be followed in the 1978 OCR investigation of public institutions of higher education in Alabama was set out in a memorandum from Cynthia Brown (“the Cynthia Brown memo”) to regional directors, including Regional Director William H. Thomas in the Atlanta Office of

*1048

OCR, which had responsibility of the State of Alabama.

The Cynthia Brown memo set out the procedures to be followed in examining certain subject areas, including student admissions, financial aid, counseling and tutoring, athletics, and program duplication.

2

Public senior-level institutions of higher education in Alabama received letters from Louis 0. Bryson, an official with the OCR in Atlanta, identifying certain subjects on which OCR would like to focus during the “on-site” portion of the compliance review.

In November, 1980, the “Higher Education Desegregation Working Group” was established in the Department of Education to issue letters of finding for Alabama and several other states by mid-January, 1981. The “Higher Education Desegregation Working Group” did not include any persons who had been involved in the 1978 OCR field investigations of public higher education in Alabama. The “Higher Education Desegregation Working Group” operated primarily on the basis of “briefing books” which summarized some of the information developed in the OCR 1978 investigation.

The 1978 OCR investigation did not find discrimination in admissions policy nor did it identify a problem with respect to recruitment.

The letter of findings ultimately issued January 7, 1981, was addressed to Governor Fob James, with copies to the presidents of several public institutions of higher education in the state. The letter from the Department of Education, notified the Governor and the various university and college presidents that vestiges of the former

de jure

system allegedly remained in Alabama’s public institutions of higher education in violation of Title VI. The state was directed to submit to the Government a plan to assure future compliance with Title VI.

After months of unsuccessful negotiations between a representative of the governor and representatives of OCR, Assistant Secretary of Civil Rights for the Department of Education Clarence Thomas— now an Associate Justice on the United States Supreme Court — sent a “ten-day letter” to Governor James stating if within ten days Alabama did not submit a plan to eliminate the alleged vestiges of the dual system the matter would be referred to the Department of Justice for litigation. No plan was ever submitted.

On January 15,1981, John F. Knight, Jr., and other alumni, students and faculty members of Alabama State University filed suit in the Middle District of Alabama attacking alleged vestiges of segregation in public higher education.

Knight v. James,

514 F.Supp. 567 (M.D.Ala.1981), alleged that the desegregation of ASU was impeded by duplicative educational programming at AUM and TSUM, in violation of Title VI and the Fourteenth Amendment. On May 20, 1981, the District Court granted the motion of Governor James and ACHE to stay all further action in

Knight v. James

pending resolution of Title VI administrative proceedings between the State of Alabama and the U.S. Department of Education aimed at desegregating public higher education statewide. This stay was dissolved on April 6, 1982, when the District Court was informed that the Department of Education had referred the Title VI enforcement proceedings to the Department of Justice.

On October 24, 1982, the Middle District certified a plaintiff class consisting of graduates of ASU and African American citizens of Alabama who were eligible for employment by or who attended or may attend public institutions of higher education in the Montgomery, Alabama area.

On July 11, 1983, the Department of Justice filed the instant action in the Northern District of Alabama, alleging that the defendants were maintaining vestiges of

de jure

segregation throughout their system of public higher education. The District Court on April 18,1983, granted the motion

*1049

of John F. Knight,

et al.,

to intervene in

US. v. Alabama,

on the ground that its outcome would be determinative of the issues in

Knight v. James.

On January 3, 1984, the court certified the Knight inter-venors to represent essentially the same Montgomery-related class the Middle District had certified.

The Middle District Court stayed all further proceedings in

Knight v. James

(by then,

Knight v. Wallace)

“until a final judgment or order is reached in

United States v.

Alabama_”

Knight v. Wal-

lace,

CA No. 81-52-N (M.D.Ala., June 12, 1984). No trial was ever conducted in

Knight v. Wallace,

and on December 12, 1990, the court dismissed

Knight v. Wallace

(now

Knight v. Hunt)

without prejudice, in light of pending proceedings in the instant action.

Immediately after the United States Attorney General filed this action in 1983, Alabama State and Alabama A & M universities separately moved for realignment as plaintiffs, or in the alternative, to file cross claims. The District Court granted both motions to realign and AAMU and ASU thereafter sought to leave to file amended complaints. The District Court granted the institutions’ request. AAMU asserted Title VI and Fourteenth Amendment claims against UAS, AU, and the state. ASU asserted similar claims against AU/AUM, TSU/TSUM, and the state.

In September 1983 Auburn University and the State Superintendent of Education moved District Judge U.W. Clemon to disqualify himself. Judge Clemon denied the motions on two separate occasions.

United States v. Alabama,

571 F.Supp. 958 (N.D.Ala.1983);

United States v. Alabama,

574 F.Supp. 762 (N.D.Ala.1983).

3

Auburn University then petitioned the court of appeals for a writ of mandamus. The Eleventh Circuit granted the writ in part and remanded the matter to the Northern District of Alabama with directions that another judge be assigned to hear the recusal motion.

In re Auburn University,

No. 83-7557 (11th Cir. Nov. 10, 1983).

Senior District Judge Hobart Grooms was assigned the recusal proceedings. After taking evidence, Judge Grooms, on December 19, 1983, issued an order granting the motions to disqualify Judge Clemon. One month later, Judge Grooms on a motion for rehearing vacated his order and recused himself from any further proceedings. Senior Circuit Judge David Dyer then heard the Defendants’ disqualification motion and denied the same.

United States v. Alabama,

582 F.Supp. 1197 (N.D.Ala.1984). The subsequent request to certify the issue for interlocutory appeal was denied. The case then proceeded to trial.

The first trial of this matter began on July 1, 1985, and concluded on August 2, 1985. Before the start of the trial Judge Clemon bifurcated the proceeding so that the only issue heard concerned the liability of the Defendants. On December 9, 1985, the District Court entered an order and memorandum of opinion in which it found that a racially dual system of higher education previously had been operated by the State of Alabama until at least 1967 and that the state had failed to dismantle the vestiges of the prior

de jure

dual system.

United States v. Alabama,

628 F.Supp. 1137 (N.D.Ala.1985). Judge Clemon then ordered the “State of Alabama, [the Governor, ACHE and APSCA]” to submit a plan to eliminate all vestiges of the dual system of higher education in Alabama. 628 F.Supp. at 1173 .

An issue that had been severed from the main case involving the recertification by the SBE of certain teacher education programs at ASU, was heard by Judge Clemon immediately after the conclusion of the main case. On August 20, 1985, the District Court enjoined the SBE from decerti-fying ASU’s educational programs. An ap

*1050

peal to the Eleventh Circuit was taken, which affirmed the injunction on behalf of the Knight Plaintiffs but also held that ASU had no right to sue the state or its agencies under Title VI or the Fourteenth Amendment.

United States v. Alabama,

791 F.2d 1450 (11th Cir.1986). ASU filed with the Court of Appeals petitions for rehearing and suggestions for rehearing

en banc,

which were denied. 796 F.2d 1478 (11th Cir.1986). ASU then unsuccessfully petitioned the United States Supreme Court for certiorari. 479 U.S. 1085 , 107 S.Ct. 1287 , 94 L.Ed.2d 144 (1987).

Meanwhile, the District Court overruled motions by several of the Defendants under 28 U.S.C. § 1292 (b) seeking immediate appellate review of the District Court’s original findings concerning the existence of a dual system of higher education based on race. Thereafter the Defendants filed a notice of appeal to the Eleventh Circuit Court of Appeals under 28 U.S.C. §§ 1291 and 1292(a). On February 13, 1986, AU and the University of Alabama System moved the Court of Appeals to stay the remedy phase of the trial. Before the Plaintiffs had an opportunity to reply, the Circuit granted the stay on February 14, 1986. The Knight Plaintiffs, ASU and AAMU filed separate motions to dissolve the stay which were denied by the Circuit.

On May 16, 1986, the Knight Plaintiffs, AAMU and ASU, petitioned the United States Supreme Court for a writ of certio-rari seeking a dissolution of the stay entered by the Eleventh Circuit and a ruling that the appeal from the District Court order was premature. While the petition for certiorari was pending the Knight Plaintiffs and the state’s predominately black schools also filed an Application with Justice Powell to dissolve the stay entered by the Court of Appeals. Justice Powell denied the Application and the Supreme Court shortly thereafter denied the petition for a writ of certiorari.

On October 6, 1987, the Eleventh Circuit reversed and remanded the judgment of the District Court. It held that the complaint of the United States should be dismissed without prejudice, the Knight Plaintiffs’ Title VI claim should also be dismissed without prejudice, that Judge Clem-on be removed from the cases and that a new trial be had if the United States and the Knight Plaintiffs refile their claims.

United States v. Alabama,

828 F.2d 1532 (11th Cir.1987),

cert. denied,

487 U.S. 1210 , 108 S.Ct. 2857 , 101 L.Ed.2d 894 (1988). The Court of Appeals affirmed the Knight Plaintiffs’ right to challenge vestiges of segregation under the Fourteenth Amendment. 828 F.2d at 1551 .

After six other district judges were re-cused on their own motion or by order of the Eleventh Circuit, the Chief Judge for the Northern District of Alabama certified that a need existed for a judge from another district to preside over this case. The undersigned, a United States District Judge for the Northern District of Georgia was designated by then Chief Judge Paul H. Roney of the Eleventh Circuit to perform all judicial duties relating to this action.

In re John F. Knight, Jr.,

No. 88-7764 (11th Cir. Apr. 12, 1989).

On remand, John F. Knight, Jr.,

et al.,

were designated lead plaintiffs, and both they and the United States filed amended complaints. On March 12, 1990, this Court entered a lengthy order disposing of all pending motions to dismiss. Among other things, the Court denied all motions to dismiss the statewide Title VI claims of the United States and Knight Plaintiffs relying on the Civil Rights Restoration Act of 1987, which legislatively overturned the Supreme Court’s ruling in

Grove City College v. Bell,

465 U.S. 555 , 104 S.Ct. 1211 , 79 L.Ed.2d 516 (1984). Motions to dismiss the Knight Plaintiffs’ Fourteenth Amendment claims and the intervention of the United States to assert its own Fourteenth Amendment claims were also denied.

The Court did grant motions to dismiss the Knight Plaintiffs’ Section 2 Voting Rights Act claim. The Court also dismissed the Knight Plaintiffs’ vote dilution allegations premised on the First, Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States. These counts were dismissed on the grounds that the factual predicate

*1051

plead in the complaint did not constitute a cognizable claim concerning voting or voting strength as a matter of law.

Knight v. Alabama,

No. 83-M-1676-S, slip. op. at 52-63 (N.D.Ala. Mar. 12, 1990). Finally, the Court dismissed the cross claims of ASU and its Board of Trustees on the grounds that they lacked standing to pursue the interest of third parties who were already adequately represented by the Knight Plaintiffs.

Id.

38-51.

On June 15, 1990, following a hearing at which most of the named plaintiffs and plaintiffs-intervenors testified, the Court conditionally certified John F. Knight, Jr.,

et al.,

and Alease S. Sims,

et al.,

to represent a class of “all black citizens of Alabama and all past, present and future students, faculty, staff and administrators of Alabama State University and Alabama A & M University.”

Knight v. Alabama,

No. 83-M-1676-S, slip op. at 9 (N.D.Ala. June 15, 1990). The class was thereafter denominated as the “Knight Plaintiffs.”

Before the start of this trial, and over the objection of the Knight Plaintiffs, the Court reaffirmed several consent decrees previously approved by Judge Clemon. The reaffirmed decrees were between the United States and the University of South Alabama, the University of Montevallo, Jacksonville University, and Livingston University. This Court also approved consent decrees entered into for the first time between the United States and Troy State University, and the United States and the State Board of Education, Athens State College and Calhoun State Community College. These decrees were also objected to by the Knight Plaintiffs. The Government considers the consent decrees to disposes of all claims which it makes against these parties.

In approving the consent decrees, the Court clearly indicated that in the event there was a finding of liability and a judicial remedy required, those schools who had entered into consent decrees with the Government might well have to participate in the remedy regardless of their independent agreements with the United States. The Court specifically indicated it would retain jurisdiction over all settling parties as to any remedy following a trial on the merits.

Knight v. Alabama,

No. 83-M-1676-S, slip op. at 2-3 (N.D.Ala. June 28, 1990).

By Order of the Court, the 1985 trial record and transcript was specifically incorporated into the current proceedings. The parties were given an opportunity to object to any portion of the 1985 trial record which was, in their opinion, improperly introduced into evidence. The parties were also allowed to object to the introduction of testimony from the 1985 trial if it was felt that the cross examination had been unduly restricted.

Finally, the Court chose not to bifurcate this case between liability and remedy. The Court believed that the best use of judicial and financial resources would be to hear both issues during a single trial.

Trial began October 29, 1990, and, except for holiday recesses, continued uninterrupted to April 16,1991. The Court heard from approximately 200 witnesses, received hundreds of thousands of pages of exhibits and produced a transcript well in excess of 22,-000 pages.

CONTENTIONS OF THE PARTIES

What follows are the contentions of the various parties to this case. The Court takes these contentions directly from the submissions of the parties with only minor changes.

A. Knight Plaintiffs

The Knight Plaintiffs contend that segregation was only one aspect of a broader official state policy of white supremacy and that many of the current institutions, policies and practices of public higher education in Alabama are designed with the specific intent of subordinating black citizens. Higher education is the gateway to the professions, technology, business and most other aspects of middle class American society. Alabama’s official policy was and is that public higher education should afford full access to these middle class roles only to its white citizens and that the higher education of black citizens should be

*1052

restricted so as to limit blacks to subordinate roles in the state’s political, social and economic order. Plaintiffs contend that this official policy of white supremacy in higher education has been implemented historically and in the present through the following policies:

The continuing restriction of the missions of ASU and AAMU to those of the traditionally white regional/teacher colleges was established and maintained for the purpose of discriminating against black citizens.

Black Alabamians were promised in 1873 and afterwards that ASU would provide for them the same liberal arts, graduate and professional educational opportunities as UA provided whites. The fraudulent and racially discriminatory repudiation of this promise to black people has been repeated throughout Alabama’s history and is ongoing.

AAMU was designated Alabama’s black land grant university in 1890, but it received no state funding for land grant functions until 1982, when small appropriations began, and the state continues to this day denying AAMU any share of federal funds proceeding from the 1862 Morrill Land Grant Act, the 1887 Hatch Act and the 1914 Smith-Lever Act. As a result, black farmers were forced off the land in disproportionate numbers. Today, the black community, with its unique needs and interests, is still denied equal access to and participation in modern agricultural and engineering technologies that land grant funding is intended to support.

The denial to ASU and AAMU of graduate, professional and research programs intentionally restricts the development of their undergraduate programs as well.

Physical separation of blacks and whites in public education was maintained by law.

De jure

segregation was imposed in a variety of historical ways, ranging from policies of the Reconstruction era State Board of Education, to constitutional prohibitions in 1875 and 1901, to massive resistance policies of governors and HWU boards of trustees in the twentieth century.

Since Alabama became a state, it has maintained through a variety of historical circumstances a steadfast policy of imposing white control over the public education of black people. This racially motivated policy was crucial to the regime of white supremacy for two purposes: (1) to make sure the content, values and style of blacks’ education prepared them for subordinate roles in society, and (2) to ensure that white persons would never be forced to submit to the authority of black persons. African Americans have always understood that their educational opportunities depended on the extent to which they could gain a measure of control over their own institutions, and that their ability to combat the policy of white control directly depended on the extent to which black citizens could gain a share of effective political power. Among the earliest achievements of blacks elected as a result of the 1965 Voting Rights Act and federal court legislative reapportionment decrees were creation of independent, majority-black boards for ASU and AAMU and corresponding increases in their state appropriations.

Alabama’s historical policy of subordinating its African American citizens through public higher education persists to the present. It is accomplished by limiting blacks’ access to many undergraduate and most graduate and professional programs to those afforded by HWUs. Various admission criteria cause the number of blacks in HWU programs to be disproportionately low to begin with. Those black students who do enter the HWUs encounter white administrators, staff and students who don’t expect them to succeed on the same basis as white students. Whites’ underex-pectations of blacks are precisely the attitudes of white superiority and black subordination that for generations the State of Alabama has officially promoted.

The exclusion of African Americans from or their underrepresentation on the governing boards, administrations and faculties of the HWUs is a manifestation of Alabama’s historical policy of preventing black persons from exercising authority or even significant influence over the education of white persons. Black underrepresentation

*1053

in positions of authority at HWUs is the main current mechanism of massive resistance at these schools. It ensures that the educational values, content and styles of the African-American community will not share genuine influence on HWU campuses with the educational values, content and styles of the white community.

The small pool of African Americans who already have the doctoral and professional degrees demanded for university faculty positions today is a proximate result of at least two current racially motivated policies: (1) the restriction of HBUs’ missions with respect to graduate and professional programs and (2) blacks’ continued inability to overcome institutionalized massive resistance at HWU graduate and first professional schools. Unless

both

racially discriminatory policies are corrected, the black community will continue to be denied equal access to the leadership and resources needed for its political, social and economic development.

The creation, expansion and maintenance of HWU branch campuses in Montgomery and Huntsville were and are manifestations of Alabama’s intentionally discriminatory policies of (1) restricting the HBU missions, (2) ensuring that white persons would not be forced to submit to the educational authority of black persons and (3) denying historically black institutions the opportunity to provide educational and developmental support for the social and economic growth of the state and the region in which they are located. These HWU branches are important institutional mechanisms in the current strategy of massive resistance, and their continued duplication of programs that already are or ought to be offered at ASU and AAMU perpetuate segregation and its official stigma on the black community.

Defendants, except for ASU and AAMU, deny plaintiffs’ claims and contend that the State and its agencies have taken sufficient steps to eliminate historical and continuing discrimination against black citizens in public higher education. ASU and AAMU agree with plaintiffs’ contentions.

B. The United States

Government

4

The basic contention of the United States is that the vestiges of racial segregation have not been eradicated “root and branch” from public higher education in the State of Alabama and that the Court should direct the formation of a plan calculated to eliminate such vestiges. All of the following contentions are subsidiary to this basic premise.

(a) Alabama required absolute segregation in all public education until the middle of the 1960’s.

(b) The Legislature and executive branches actively and resolutely opposed any and all attempts to change these requirements of absolute segregation until otherwise required by federal court order.

(c) In keeping with this overall policy, at the four-year level, public higher education in Alabama in 1954 was absolutely segregated with two four-year schools (AAMU and ASU), limited to black students and black faculty, which were substantially inferior to the four-year schools established and operated for whites only.

(d) The Legislature and Governor, as well as the white schools themselves, actively opposed the attendance of blacks at the white four-year institutions until these schools were required to admit black students by federal court order. .

(e) Alabama is under a constitutional obligation to take action to eliminate “root and branch” all vestiges of the racially dual system of public higher education which it established.

(f) Alabama has failed to take the necessary steps to compel either the disestablishment of the dual system in state higher education or to establish the conditions necessary to allow this racial duality to disappear over the course of time.

(g) The Defendant universities themselves have failed to take the constitution

*1054

ally necessary steps to make the transition from “white” schools and “black” schools to “just schools.”

(h) The white schools have affirmatively hindered the black schools from attracting white students, primarily through course and program offerings at geographically proximate institutions.

(i) The white schools have failed to hire qualified black faculty members and to appoint qualified black administrators with the reciprocal effect of maintaining their own identification as white schools and cementing the identification of the black schools.

(j) The white schools have adopted admission policies which result in fewer black students enrolling in these schools and operating their institutions so that black students are less likely to graduate once in attendance at the white schools, continuing their identification as white schools.

(k) The black schools have failed to take steps to attract white students and do not appoint and retain white faculty as to eliminate their identity as black schools and make the transition from “historically black schools.”

(l)

The state of Alabama has failed to disestablish its dual system of public higher education by not taking steps to make the black schools sufficiently attractive in terms of facilities to attract white students.

(m) Alabama has failed to disestablish its dual system of higher education by not providing sufficient funding to the black schools to enable them to eradicate the past neglect of the state and thus compete on a level playing field for all students, both white and black.

(n) The failure of the state to eliminate program duplication and to continue operating two agricultural schools, one overwhelmingly white and supported by disproportionate resources, one black and simply incomparable.

(o) The state has failed to disestablish its dual system by not taking steps to eliminate program duplication and by not offering unique, attractive programs at all schools so that other-race students will not be discouraged from attending schools they were once absolutely precluded from attending by state action.

(p)The state and its four year institutions of higher education have no plan, policy, or design to eliminate absolutely the racially dual structure of public higher education at the four year level and, with the exception of black schools and those institutions which have entered into consent decrees with the United States in this action, no concrete plan to foster the conditions which will allow this racially dual structure to dissipate and eventually disappear.

The United States and the Knight Plaintiffs contend that they are entitled to relief based on the following:

a. Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d

et seq.

b. The Fourteenth Amendment to the Constitution of the United States.

In addition, the Knight Plaintiffs seek relief under the following theories:

a. Third party beneficiary contract rights of plaintiffs and the class they represent accruing from agreements entered into by Defendants with the United States under Title VI.

b. Rights of Plaintiffs and the class they represent as beneficiaries of a constructive trust created by the defendants’ receipt of monies from the federal government under Title VI agreements.

c. The Fifteenth Amendment to the Constitution of the United States.

5

d. The Civil Rights Act of 1866, 42 U.S.C. § 1981 .

e. The Second Morrill Act, 26 Stat. 417

et seq.,

7 U.S.C. § 321

et seq.

f. Rights of plaintiffs and the class they represent as beneficiaries of a constructive trust created by the defendants’ receipt of

*1055

monies from the United States under the Second Morrill Act.

g. The Civil Rights Act of 1871, 42 U.S.C. § 1983 .

C. State Defendants

The State Defendants’ contentions are as follows:

(a) The State Defendants are not subject to Title VI of the Civil Rights Act of 1964. The state supported institutions in Alabama are governed by individual boards of trustees rather than by a central governing board. Alabama has no public system of higher education within the meaning of Title VI. Neither the State of Alabama, the Governor, APSCA, nor the State Finance Director are programs or activities receiving federal financial assistance within the meaning of Title VI.

(b) The State Defendants have fulfilled any constitutional or statutory requirement to eradicate vestiges of segregation.

(c) The State Defendants cannot be held liable for matters beyond their control such as institutional admissions standards, tuition schedules, employment practices, expenditures and the like.

(d) The Federal Constitution does not require that the state remedy pre-1964 exclusion of black students from comprehensive post-secondary education by establishing and operating predominately black institutions comparable in funding and programs to Auburn University and the University of Alabama.

(e) The difference between AU and UA on the one hand and AAMU and ASU on the other are not vestiges of

de jure

or

de facto

segregation. Such differences exist because AU and UA have broader missions and roles than do the predominately black schools.

(f) Expansion of AU and UA into the state’s urban areas is not a vestige of segregation. Rather, AU and UA were pursuing their mission of providing broad-based education to large numbers of students.

(g) No dual system of higher education exists in Alabama. More black students attend and are awarded degrees by state-supported, predominantly white institutions than state-supported predominantly black institutions. If state resources are channeled away from predominately white institutions toward predominately black institutions, then state resources will be channeled away from a majority of black students.

D. Auburn University

Defendant Auburn University denies the material allegations of the amended complaint of the Knight Plaintiffs and has asserted several affirmative defenses including:

(a) That plaintiffs fail to state a claim upon which relief can be granted in the sixth cause of action based on 42 U.S.C. § 1981 , and the seventh cause of action which seeks 42 U.S.C. § 1983 injunctive relief based on state allocation of appropriations pursuant to the Morrill Act of 1890.

(b) The claims based on the establishment and operation of AUM are barred by the doctrines of collateral estoppel and

res judicata

because of the previous decision of the United States Supreme Court in

Alabama State Teacher’s Association v. Alabama Public School and College Authority,

393 U.S. 400 , 89 S.Ct. 681 , 21 L.Ed.2d 631 (1969) (“ASTA”).

(c) The claims of the plaintiffs, to the extent they involve AUM, are barred by the doctrine

stare decisis,

as the establishment and operation of AUM as an institution open to students of all races was sanctioned by the United States Supreme Court in previous litigation,

ASTA,

289 F.Supp. 784 (M.D.Ala.1968),

aff'd

per curiam, 393 U.S. 400 , 89 S.Ct. 681 , 21 L.Ed.2d 631 (1969).

(d) That AUM has never been and is not now a

de jure

or

de facto

segregated institution and is not, and has never been, part of any racially segregated system of higher education.

(e) That neither Title VI nor its implementing regulations impose any obligations on AUM beyond non-discrimination, be

*1056

cause AUM is not a program in which previous discrimination took place.

(f) That any claims concerning the organization of and administrative responsibility for the Alabama Cooperative Extension Service (“ACES”) are barred by the doctrines of prior action pending, collateral estoppel and

res judicata

based on the pending case of

Strain v. Philpott,

331 F.Supp. 836 (1971) in the United States District Court for the Middle District of Alabama, which has been pending for approximately twenty years and remains active as to pending motions for relief concerning modification of the organization of the ACES and other issues related to its desegregation and non-discriminatory operation.

(g) That the continued existence of racially identifiable institutions of higher education does not violate the Constitution or laws of the United States or of the State of Alabama to the extent continued racial identifiability of defendant institutions is a result of choice by black students, faculty, administrators, and staff to become associated with such institutions.

(h) That the claims of plaintiffs are barred by the applicable statutes of limitations, the doctrines of laches, waiver, estop-pel and unclean hands.

(i) That AU’s responsibility for agricultural education, agricultural extension, and agricultural research resulted from factors other than race, and that statewide responsibility for agricultural extension and research would have developed in the state's largest land grant university for reasons unrelated to race.

Auburn University denies the material allegations contained in the United States’ Complaint and in addition to the affirmative defenses asserted as to the claims of the plaintiff class, avers:

(a) That the United States and the Knight Plaintiffs have failed to comply with procedural prerequisites to claims brought under Title VI and claims under the fourteenth amendment.

(b) That the federal agency responsible for Title VI compliance with respect to funds for agricultural education, extension, and research is the United States Department of Agriculture, and that the United States and other plaintiffs have not complied with necessary procedures for enforcement of Title VI in this action as to programs administered by the U.S. Department of Agriculture.

(c)That the federal government is barred from the relief it seeks in this action by the equitable doctrine of unclean hands, in that it has encouraged, and continues to encourage, preservation of the racial identi-fiability of AAMU, ASU, and other predominantly black institutions through federal subsidies based on the racial identifiability of such institutions and by selective failure to enforce Title VI as to AAMU and ASU.

AU contends that it has accepted responsibility for, and has carried out, desegregation in all of its programs and activities. AUM, established in 1967, was never segregated, and has at all times since its inception been operated on a non-discriminatory basis.

AU contends that since the admission of the first black student at AU in 1964, AU has desegregated each of its programs and activities. No person is excluded on the ground of race, color or national origin from participation in, or denied the benefits of, or subjected to discrimination under any program or activity of AU, as defined by Title VI of the Civil Rights Act of 1964. AU has taken affirmative steps including the recruitment of black students and faculty to disestablish vestiges of segregation.

AU contends that each of the public institutions of higher education in Alabama is governed by a separate and independent board of trustees, and no public institution of higher education is part of a “system” which is governed by some single entity with higher authorization than the institutions’ respective boards of trustees. There is no “system” of higher education in Alabama so that one institution can be judged vicariously liable for the transgressions of some other institution which is autonomous and separately governed.

In Alabama, there has never been a “system” which governed all public institutions

*1057

of higher education. The governance of public higher education has been highly decentralized, with each autonomous university responsible for its own management and control by its own board of trustees.

AU contends that ASU and AAMU, which have continued to grow since the end of segregation, now seek judicial license to duplicate the missions and programs of UA and AU and, thereby, to create a racial duality in 1990 that did not exist prior to 1964. Moreover, the Knight Plaintiffs seek to establish “separate but equal” programs for ASU and AAMU because of the black identity of those universities, in a manner completely inconsistent with their constitutional and statutory obligations.

AU contends that the constitutional autonomy of its board of trustees began in the Alabama Constitution of 1875, and that race was not a factor in that decision. Continuation of this status in the 1901 Constitution was not influenced by race, nor was the passage of Amendment 161 to the 1901 Constitution which currently provides for AU’s constitutional autonomy.

AU denies that the plaintiffs state any recognizable cause of action in asserting that ASU and AAMU suffer from a “stigma of inferiority” which must be remedied by the state and the other defendants in this action.

Alabama’s public institutions of higher education differ in size, academic program offerings and responsibilities for research and public service in ways that are typical throughout the United States. Such variations in size and mission are not the result of segregation; similar patterns are found in states in which racial segregation was never practiced.

AU contends that at least during the past sixteen years, AAMU and ASU have received a greater share of state appropriations for functions associated with students than the other public universities in Alabama. When comparing these institutions to the other former normal schools or state teachers’ colleges JSU, LU, TSU, UNA, Alabama A & M University and Alabama State University have received a greater percentage share of state appropriations than their fair share.

AU contends that during the last 25 years, AAMU and ASU have received more state revenues for physical facilities than any other institution of comparable enrollment, program and mission, and that to the extent AAMU or ASU were ever disadvantaged with respect to physical facilities as compared to other institutions of comparable enrollment, program and mission, those disadvantages have been erased over the past 25 years as a result of the over-funding of AAMU and ASU. No vestiges of segregation exist in Alabama’s institutions of higher education with respect to facilities.

AU contends that its admission standards were adopted for non-discriminatory reasons. They are applied in a non-discriminatory manner. Use of the American College Test (“ACT”) is justified because both the ACT and high school grade average are valid predictors of first-year academic performance at AU. ACT scores, used alone or in conjunction with high school grades, are reasonably good predictors of success in college as measured by freshman grade point average, and are valid predictors for both blacks and whites.

AU contends that AUM’s admission policies have neither the purpose nor effect of discriminating against blacks; and do not, because of the availability of a special admissions program which does not require any ACT score, disqualify disproportionately more black than white high school graduates in Alabama.

AU contends that black students in Alabama select colleges on the same basis as students elsewhere in the nation, in that students tend to choose a college whose difficulty level is commensurate with their own ability. Black high school students in Alabama perceive predominantly white colleges to be accessible to them, and better prepared black students tend to select predominantly white colleges as their first choice. A substantial majority of black students attending publicly supported colleges in Alabama attend colleges and universities which are predominantly white.

*1058

Black and white students in Alabama and nationwide are affected in their college choice by the average level of preparation of the students enrolled in particular colleges, as measured by test scores such as ACT.

AU contends that neither its main campus nor AUM discriminate in the recruitment, employment or advancement of black candidates for faculty, administrative, or other positions. Competition for qualified black candidates for faculty and administrative positions at AU is nationwide and intense, and the availability of qualified black candidates in many disciplines is very low. Availability of qualified black candidates is particularly low in fields such as agriculture, architecture, engineering, veterinary medicine, and other technical fields in which AU specializes. AUM has generally had a higher percentage of blacks among its faculty than any other predominantly white institution in Alabama.

The ASTA court found that AUM was conceived as neither a black school nor a white school, but rather as “just a school;” and that there were legitimate, non-discriminatory reasons for establishing AUM. 289 F.Supp. at 789 . Any contention that AUM’s creation was racially inspired is foreclosed by the

stare decisis,

collateral estoppel and

res judicata

effects of the

ASTA

decision.

AUM has never been, and is not now, a

de jure

or

de facto

segregated institution and is not, and has never been, part of any racially segregated system of higher education. AUM has operated at all times since its creation as a race-neutral institution of higher education, equally open in all respects, including admissions and employment decisions, to all persons without regard to race. Operation in this fashion is all that is required of AUM under Title VI or the Constitution of the United States.

Neither Title VI nor its implementing regulations impose any obligations on AUM beyond non-discrimination, because AUM is not a program in which previous discrimination took place.

The academic programs offered by AUM are essentially the programs envisioned at the time of AUM’s creation, and made known to the

ASTA

court. These programs are viable programs consistent in all respects with AUM’s mission. These programs do not unnecessarily duplicate programs at ASU as a matter of fact or law. The existence of certain academic programs at AUM does not unlawfully impede the ability of ASU to attract white students. There is no merit to the plaintiffs’ contentions that AUM’s existence and its offering of certain academic programs impedes ASU’s ability to attract white students.

AUM is not responsible for the racial identity of ASU, nor for any failure to desegregate, or failure to eliminate vestiges of segregation in that institution. AUM is not guilty of any violation of Title VI or the Constitution, and cannot have liability or a remedy imposed on it because of conditions which may exist in some other institution, such as ASU.

Alabama, like 49 other states of the United States,

6

has a single agricultural experiment station (AAES) and a single extension service (ACES), both of which are under the highly centralized control of the “1862” land grant university (AU), and have statewide missions that cover all counties in the state. The AAES and ACES, as presently constituted, are the result of many historical and economic forces, unrelated to race, that have combined to produce the same agricultural structure in the other states of the United States. It is not feasible, either from the standpoint of economics or the efficient provision of services, for a state to maintain more than one agricultural experiment station or one extension service or to duplicate already existing experiment stations or extension services. Neither is it feasible for a state to divide or fragment research and extension between more than one institution.

In accordance with the terms of the First Morrill Act (1862), AU was established and designated as the “1862” land grant university in Alabama. Likewise, in accordance

*1059

with the terms of the Hatch Act (1887), the AAES was established and placed under the administrative control of AU. Finally, in accordance with the terms of the Smith-Lever Act (1914), the ACES was established and placed under the administrative control of AU.

If considerations of race played any role in making AU the 1862 land grant institution and in assigning it exclusive administrative control of AAES and ACES, the same decisions would have been made for compelling reasons unrelated to race. Politics, economics, geography, and religion— not race — were the overriding considerations in establishing AU and in making it the “1862” land grant institution in Alabama. Since AU had already become the major agricultural research university in the state and had already established an experiment station before the passage of the Hatch Act, it inevitably followed that when the experiment station was created in 1887, it was placed in Auburn under the control of AU. By the same token, since the primary mission of the extension service was to disseminate the knowledge generated by the experiment station, it was logical when the extension service was established in 1914 to locate it in close proximity to the experiment station at Auburn under the administrative control of AU. These reasons, among others unrelated to race, dictated the decisions to place the “1862” land grant institution, along with the experiment station and the extension service, at the same location under the administrative control of the same institutional entity.

AAMU’s designation under the Morrill Act of 1890 entitled AAMU to receive an equitable portion of the annual appropriations under the Second Morrill Act (so long as AU did not admit blacks), but such funds were restricted for instruction in agriculture and the mechanic arts. The Second Morrill Act provided funds neither for agricultural research nor extension, nor conferred upon AAMU any mission in agricultural research or extension. In accordance with the administrative procedures of the Second Morrill Act, the Secretary of the Interior (and each successor in authority to the Secretary) was required to certify as a prerequisite to distribution of the appropriations under that act that the division of Second Morrill Act funds was equitable. During the period that the equitable division provision was effective, the division of funds in Alabama was never determined by the appropriate federal officials to be inequitable. After 1954, when

Brown v. Board of Education

foreclosed duality, the provisions of the Second Morrill Act, which provided an equitable distribution of funds for the black 1890 institutions, by its own terms became inoperative.

Agricultural research was not, in 1954, conducted on a racially dual basis in Alabama. The AAES, under the direction of AU, provided statewide agricultural research on a unitary basis. Since 1964, the AAES has been operated on a desegregated basis, utilizing scientists of all races with benefits available to people of all races. The question of Title VI compliance by the AAES has been the responsibility of the United States Department of Agriculture, which has never found the AAES to be out of compliance with Title VI.

AAMU’s current role in agricultural research, and its funding for agricultural research, are a result of initiatives by the federal government (both the executive and legislative branches) after the passage of the Civil Rights Act of 1964 to establish an agricultural research role for AAMU and other “1890” institutions. This research obviously cannot be a vestige of segregation which existed prior to 1964, since it was created after that time. The existence of a separate agricultural research role for AAMU as an “1890” institution on a lesser financial scale than that of the “1862” institution at Auburn, neither offends Title VI nor the Fourteenth Amendment.

Prior to 1964, extension services by and for blacks were provided on a segregated basis through the ACES under the responsibility of AU. The ACES was required to desegregate, both with respect to employment and the provision of services to its clientele, by virtue of the Fourteenth Amendment and Title VI in proceedings filed in the United States District Court for

*1060

the Middle District of Alabama, in an action entitled

Strain, et al. v. Philpott, et al.

Both the United States and a class of “all black citizens of Alabama” are plaintiffs in that case, which has been pending for over 20 years — and still remains — under the supervisory jurisdiction of that Court. The U.S. Department of Agriculture, the agency responsible for monitoring Title VI compliance of the ACES, has found the ACES to be in full compliance with Title VI in its most recent review.

The Government did not satisfy' statutory and administrative requirements for the institution of this action as it relates to programs under the authority of the United States Department of Agriculture, nor did the United States satisfy such requirements to pursue Title VI claims against AU.

This action is barred by applicable statutes of limitations and the doctrine of lach-es as to claims for the events of the nineteenth century, the 1960’s and the 1970’s, and by the doctrines of

res judicata

and collateral estoppel; and by

stare decisis

as to claims concerning the desegregation and non-discriminatory operation of the ACES.

There is no private right of action under the Morrill Act of 1890, and that Act does not confer rights upon AAMU.

See, Wyoming Agricultural College v. Irvine,

206 U.S. 278 , 27 S.Ct. 613 , 51 L.Ed. 1063 (1907);

Brown Univ. v. Rhode Island College of Agric. & Mechanic Arts,

56 F. 55 (Cir.Ct., D.R.I.1893).

The constructive trust claims against the state or AU based on alleged misuse of land grant funds in the past are barred by the Eleventh Amendment.

E. The University of Alabama

System

7

The University of Alabama denies that vestiges of a dual system of higher education remain in Alabama. Black students are admitted and enrolled in every institution of the UA system on the same basis as white students.

To the extent that the state’s predominately black schools still remain virtually segregated, they remain that way because many of their students, faculty and staff publicly express their preference to remain predominantly black institutions.

UA denies that ASU and AAMU were or are substantially inferior to schools in the state with comparable missions. According to the University of Alabama, their is not a racially dual system of education in Alabama.

There is not a “system” of public education in the state within the meaning of the term contemplated by Title VI.

The University of Alabama denies that it has failed to take the constitutionally necessary steps to desegregate. Racial imbalance alone does not constitute a violation of Title VI or of any constitutional provision. In the absence of an objective standard, equally and fairly applied to all states and to all independent institutions of higher education within those states, a desegregated institution cannot be held in violation of Title VI and the Fourteenth Amendment to the Constitution simply for failing to achieve or attain an unspecified level of racial composition for its student body, faculty, and staff.

It is UA’s contention that as long as the Knight Plaintiffs continue to emphasize the need to structure the makeup of ASU and AAMU around black culture and traditions, and continue to demand black control of the governing boards, these schools will never desegregate.

If the Knight Plaintiffs’ position is approved by the Court, it will in practice result in the creation of “separate-but-equal” institutions and totally negate the desegregation efforts resulting from

Brown v. Board of Education.

F.The Troy State University System

Troy State University and Troy State University at Montgomery deny each of the material allegations of the Plaintiffs’ Complaints, and contend that they have violated neither the Fourteenth Amendment nor Ti-

*1061

tie VI of the Civil Rights Act of 1964. TSU and TSUM further maintain that: (a) TSU and TSUM have discharged their duty under the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964 to disestablish the formerly de jure segregated “system” of higher education in the State of Alabama; (b) TSU and TSUM are not vicariously liable under the Fourteenth Amendment and Title VI for discriminatory acts by other institutional defendants; (c) TSU and TSUM have eliminated — to the extent practicable — all vestiges of segregation in higher education in the State of Alabama; (d) the Plaintiffs cannot maintain their claims because there is no public system of higher education in the State of Alabama, as that term is used in Title VI and the accompanying regulations. In addition, TSUM has always operated as a racially-neutral institution, and has no history as a

de jure

or

de facto

segregated institution; (e) the Plaintiffs’ claims under Title VI fail because the Plaintiffs have failed to offer any evidence of discrimination by TSU or TSUM. TSU and TSUM do not discriminate against blacks in terms of student recruitment, admissions, retention, financial aid, student life and faculty hiring; (f) there is no discrimination in the assignment of institutional missions, funding, facilities or program duplication; (g) the Plaintiffs’ Title VI claims fail because they have failed to “pinpoint” or to specifically identify any discriminatory activities or practices by TSU and TSUM; (h) the Plaintiffs’ Title VI claims also fail because the Plaintiffs have failed to identify those federal funds which TSU and TSUM are allegedly using in a discriminatory fashion; (i) the Plaintiffs have not offered any evidence that TSU and TSUM have discriminated in the employment of black faculty members in violation of Title VI; (j) Plaintiffs’ suggestion that the black population of the city or state in which TSU and TSUM is located is an appropriate benchmark for employment of black faculty is contrary to the law; (k) the Plaintiffs have failed to prove that TSU and TSUM’s employment of black faculty members has a disparate impact upon blacks;

(l)

the Revised Criteria do not establish any duty on the part of TSU and TSUM; (m) the Plaintiffs have failed to show the elements for the imposition of a constructive trust. A constructive trust is inconsistent with Title VI; and (n) the Plaintiffs have failed to state a viable claim under Section 1983.

G. State Board of Education

The SBE denied all the allegations of the Knight Plaintiffs and maintains that its consent decree with the United States provides full and complete relief to the Knight Plaintiffs.

The SBE also asserts the defense of

res judicata

and collateral estoppel based upon

Lee v. Macon County Board of Education.

This Defendant also denies that the programs at Athens State College or Calhoun State Community College unnecessarily duplicate programs available at AAMU or impair the ability of AAMU to attract white students.

With respect to Athens State College, it is contended that it is not and could not be a vestige of segregation since it did not come under state control until 1975.

H. The University Of North Alabama

UNA denies the material allegations of the Plaintiffs’ Complaints for the reasons asserted by the other Defendants.

FINDINGS OF FACT

GENERAL OVERVIEW OF HIGHER EDUCATION IN ALABAMA

A. Enrollments

1.Alabama has 16 separately accredited public institutions that grant bachelors degrees. The names of the institutions, and their fall 1990 headcount enrollments follow:

Auburn University 21,537

University of Alabama 19,794

University of Alabama at Birmingham 15,356

University of South Alabama 11,584

Jacksonville State University 8,448

University of Alabama in Huntsville 8,139

Auburn University in Montgomery 6,261

University of North Alabama 5,622

Troy State University 5,024

Alabama A & M University 4,886

Alabama State University 4,587

University of Montevallo 3,250

Troy State University in Montgomery 2,736

Athens State College 2,770

Troy State University in Dothan 1,933

Livingston University 1,921

Total 123,848 STX 202.1.

*1062

2. The locations of these institutions are shown on the map marked and introduced as State Exhibit 85 and attached as appendix

“A”

to this Memorandum.

3. The University of Alabama is located in Tuscaloosa. It was chartered in 1819 and began operating in 1831. The University of Alabama System is governed by a self-perpetuating Board of Trustees, whose appointees must be confirmed by the State Senate. The UAS Board also governs two relatively independent branch campuses: The University of Alabama at Birmingham, which began in the late 1940’s as a medical school, and The University of Alabama at Huntsville which began in 1950 as an extension center of UA.

4. Auburn University is located in Auburn. It was founded by state statutes in 1872 and designated the sole land grant college of Alabama under the 1862 Morrill Act. In 1899 its name was changed to the Alabama Polytechnic Institute and in 1960 its name was again changed to its current form, Auburn University. AU is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate. AU’s Board also governs one branch campus, Auburn University at Montgomery which began operations in 1969.

5. The University of North Alabama is located at Florence. It was founded in 1873 as a normal school. It is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate.

6. Livingston University was founded in 1883 as a normal school for white females. It is located in Livingston and is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate.

7. Jacksonville State University was founded in 1883 as a normal school for white males and females. It is located in Jacksonville and is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate.

8. Troy State University was founded in 1887 as a teachers’ college for white males and females. It is located in Troy and is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate. TSU has branch campuses in Montgomery and Dothan.

9. The University of Montevallo located in Montevallo was established by statute in 1893 as a school for white girls. It is now coeducational. It is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate.

10. The University of South Alabama was established by statute in 1963 and is located in Mobile. It grew out of an extension center of UA, but it is now governed by its own Board of Trustees appointed by the Governor and confirmed by the State Senate.

11. Athens State College, a public institution that provides junior and senior level curricula exclusively, had originated as a private college operated by the Methodist Church until 1975, when the Church offered it to the state because of financial losses. Over the objection of ACHE, ASC was accepted by the State Board of Education subject to the appropriation of operating funds by the Legislature. The Legislature appropriated funds and authorized ASC to function as an upper level (junior and senior year) college. In 1981 the Legislature placed ASC and CSCC under a single administration with the President of CSCC being the President of ASC.

12. Calhoun State Community College which offers first- and second-year college curricula, and ASC, which offers third- and fourth-year college curricula, are under the general supervision and control of the SBE. CSCC is part of the post-secondary system of community, junior and technical colleges operated by the Alabama State Board of Education.

13. Alabama State University is located in Montgomery. It was made a public institution for black students by an 1873 statute. It is governed by a Board of Trustees appointed by the Governor and confirmed by the State Senate.

14. Alabama A & M University is located in Normal, a suburb of Huntsville. It was chartered in 1873 and began operating in 1875. It is governed by a Board of

*1063

Trustees appointed by the Governor and confirmed by the State Senate.

15.

All public senior institutions offer undergraduate courses leading to a bachelor’s degree.

16. Most of the students who attend ASU and AAMU are black. All other senior institutions have majority-white student bodies.

17.The following table shows the number and percentages of black students at each public senior institution for fall term, 1976 (the earliest year for which ACHE has data) and fall term, 1990:

Fall 1976 Fall 1990

Total Black % Black Total Black % Black

4,886 AAMU 4,564 Vi

4,587 ASU 4,163 05 CD

2,770 ASC 1,068

21,537 AU 17,523 OO CO

6,261 AUM 3,857 rH O CO

8,448 JSU 6,995 05

1,921 LU 1,403 cn H to

5,024 TSU 4,194 i — l GO H C7I

1,933 TSUD 1,771 h-1 I — l

2,736 TSUM 2,223 CQ 05 CO

19,794 UA 16,529

15,356 UAB 12,010 i — I J>0 I — l

UAH 3,833

3,250 UM 3,306 OO I — 1

5,622 UNA 5,054 ^ CO

6,957 USoA 6,855 i — l I — l 1 — I C7T

TOTAL 98,633 'cD

STX 97, P. 7: 202.1, 202.3.

18. Alabama also has 39 two-year public institutions of higher education that do not grant bachelors degrees. Ten are junior colleges, seventeen are technical colleges, and twelve are community colleges which offer both junior college courses and technical college courses. SOF 11188.

19. About 73,000 students attended Alabama’s two-year institutions in the fall of 1990. STX 202.1.

20. In Alabama, participation in public higher education (as a percent of age 18-24 population) is higher than in any neighboring state and also higher than the national average. McKeown (2/13/91) 19-20; AUX 281, p. 13. Table 1.8.

21. About 20,000 black students

8

attended Alabama’s public senior institutions in the fall of 1990. STX 202.3. They constituted 16.3% of the students attending those institutions.

Id.

202 .1; 202.3.

22. Enrollment of black students at the public senior institutions increased 35% between 1976 and 1990. The increase for all students during the same period was 26 percent. STX 202.1; 202.3.

23. About 14,600 black students attended Alabama’s public two-year institutions in the fall of 1990. STX 202.3. They constituted 20% of the students attending those institutions.

24. Enrollment of black students at the two-year institutions increased 83% from 1976 to 1990. This figure was substantially greater than the 26% increase for all students. STX 202.1; 202.3.

25. A substantial majority — 59 percent, in 1990 — of black students attending public senior institutions in Alabama attend predominantly white institutions. STX 202.5.

26. In the years for which both enrollment and graduation data were reported by

*1064

race, the graduation rates for African American students at the HWUs have approximated or exceeded the enrollment rates of black students at those institutions:

1982-3 1984-5 1986-7 1988-9 1990-1

HBUs % of Total

Black Enrollment 40.6 39.6 38.2 40.1 40.9

Bachelors Degrees Awarded Blacks

9

43.7 38.9 42.6 35.2 27.3

HWUs % of Total

Black Enrollment 59.4 60.4 61.8 59.9 59.1

Bachelors Degrees Awarded Blacks

10

56.3 61.1 57.4 64.8 72.7

These data generally show that both the 3691, blacks are present in Alabama’s pop-HBUs and the HWUs graduate black stu- ulation as follows: dents in proportion to their enrollment.

27. According to 1990 federal decennial census data published in early 1991, KX

% BLACK TOTAL BLACKS

Total persons 4,040,587 1,020,705 eg

Age 18 + 2,981,799 677,681 CO eg eg

28. Graduation figures for 1988-89 reported by the public four-year institutions to the Legislative Fiscal Office, show the following (includes bachelors and graduate degrees):

UNIVERSITY TOTAL DEGREES

%

BLACK NO. DEGREES TO BLACKS

UA 3,029 1

UAB 2,458 1

UAH 778 1

ASC 694 1

AU h-1 1

AUM 796 1

JSU 1,301 h-i 1

LU 249 1 PA

UM 422 1 CO

UNA 877 1 Í — 1

USoA 1,501 H 1 PI

TSU 1, 026 P 1 P

ASU 361 CO 1 CO DO

AAMU 641 CO 1 05 o

1,906 18,340

Percentage of all degrees awarded to blacks = 10.4 percent.

KX 901-13; 3664.

*1065

B. Federal Financial Assistance For Alabama’s Higher Education System

29. The University of Alabama System receives substantial federal financial assistance through direct grants and contracts as well as indirectly through student loans and grants. UAS has received substantial federal financial assistance each year since 1964 and continues to receive such assistance today. SOF 111193-95.

30. Auburn University receives substantial federal financial assistance through direct grants and contracts as well as indirectly through student loans and grants. It has received substantial federal financial assistance each year since 1964 and continues to receive such assistance today. SOF 11 96.

31. The University of North Alabama receives substantial federal financial assistance through direct grants and contracts as well as indirectly through student loans and grants. SOF ¶ 97.

32. Troy State University receives federal financial assistance through direct grants and contracts as well as indirectly through student loans and grants. It has received federal financial assistance each year since 1964 and continues to receive such assistance today. SOF 1198.

33. Athens State College and Calhoun State Community College receive federal financial assistance through direct grants as well as indirectly through student loans and grants. They have received federal financial assistance each year since 1964 and continue to receive such assistance today. SOF II99.

34. Alabama A & M University receives substantial federal financial assistance through direct grants and contracts as well as indirectly through student loans and grants. It has received substantial federal financial assistance each year since 1964 and continues to receive such assistance today. SOF 11100.

35. Alabama State University receives substantial federal financial assistance through direct grants and contracts as well as indirectly through student loans and grants. It has received substantial federal financial assistance each year since 1964 and continues to receive such assistance today. SOF II101.

36. The Alabama State Board of Education receives substantial federal financial assistance through direct grants. It has received substantial federal financial assistance each year since 1964 and continues to receive such assistance today. SOF 11102.

37. ACHE receives federal financial assistance through direct grants. It has received federal financial assistance in the past and continues to receive such assistance today. Federal financial assistance committed to ACHE from July 1, 1988, through March 31, 1989, was at least $89,-000. SOF 11103.

SUMMARY OF THE HISTORICAL EVIDENCE

38. The expert historians called to testify in this matter are perhaps the leading authorities in their respective fields.

39. Dr. J. Mills Thornton, born and reared in Montgomery, Alabama, is probably the preeminent living authority on the social and political history of Alabama. His doctoral dissertation at Yale (concerning antebellum Alabama) was supervised by C. Vann Woodward, the most respected Southern historian living. Thornton (11/5/90) 4-5. Dr. Thornton presently is full professor of history at the University of Michigan, one of the five leading history departments in the United States.

Id.

at 6-7 . He has published extensively over the whole scope of Alabama history up to and including the Civil Rights Movement. KX 3116.

40. Dr. James D. Anderson, born and reared in Eutaw and Greene County, Alabama, is Professor of American History at the University of Illinois. Dr. Anderson has particular expertise on the history of American education in the South with an emphasis on the education of blacks. Dr. Anderson has published extensively and received national recognition for his work. Anderson (11/27/90) 10-17.

41. Auburn University’s expert land grant historian is Dr. William W. Rogers. Dr. Rogers is a full professor of American History at The Florida State University in Tallahassee, Florida, and a native of the

*1066

State of Alabama. Dr. Rogers, who received his doctorate from Auburn University testified primarily about the development of Alabama’s land grant system. Dr. Rogers publishes extensively in the area of Alabama history and serves as a referee of many scholarly journals.

42. This Court must address the intensely factual questions about whether vestiges of historical racial discrimination persist in Alabama’s system of public higher education. These questions cannot be answered accurately without a clear exposition and understanding of exactly what those historical policies of discrimination were — their specific forms and content, how they were intended to disadvantage black people and what effects they actually had. As Dr. Thornton testified:

[W]e are creatures of history and ... everything we are, everything we think, everything we can possibly believe is shaped by our past and on our experiences, and without understanding those experiences and the way in which history fundamentally creates our ways of looking at the world, we would fail to undér-stand human beings.

Thornton (11/5/90) 27-28. And, as Dr. Anderson testified, an entire academic field was created, the History of Education,

because of the recognition that both teachers, as well as researchers and educators, needed to understand ... the origin and development of educational institutions, that history was necessary for them to understand institutions in which they worked, how they developed, how they had obtained their shape and character and to also understand the broader political, economic and social forces which shaped education.

Anderson (11/27/90) 11.

43. Consideration of the present conditions without laying this historical predicate would either require uninformed speculation about events in the past, or the presumption that historical antecedents are universally known. In either case, there is no rational way for the Court to assure itself that a common basis exist from which to examine the present day practices which the Plaintiffs allege are tainted by Alabama’s history of racial discrimination. Thus, the Court makes the following historical findings of fact.

11

A. The Nineteenth Century

1. The Antebellum Period

44. Except at Mobile, which was founded by the French in the early eighteenth century, there were no whites in what is now Alabama until the Tombigbee settlement was founded in 1800 in southwest Alabama and the Big Bend settlements in modern Madison County in 1810. After Andrew Jackson’s Tennessee militia defeated the Creek Indians in 1814, the United States began selling land in what was then the western territories of Georgia. Settlers poured into Alabama by the thousands during the period between 1816 and 1819. In fact the growth was so rapid that by 1819 Alabama had enough settlers in its territory to petition the Congress for statehood which was granted that same year. The settlers brought slaves with them to the newly open territory in contravention of the Northwest Ordinance. Upon the admission of Alabama into the Union, the provision of the Northwest Ordinance prohibiting the importation of slaves was removed. Thornton (11/5/90) 24-33.

45. Until after the Civil War, the only public institution of higher education in Alabama was the “State University” or University of Alabama in Tuscaloosa. When Alabama was admitted to the union in 1819, the U.S. Government granted the state land to support a university. Proceeds from the sale of this land were deposited in the Bank of Alabama and became an endowment for the university. By

*1067

1821 the endowment had grown large enough for the Alabama Legislature to establish a board of trustees for UA. Its members were appointed by the state Senate and House of Representatives sitting in joint session. UA did not actually begin operating until 1831. At its opening, UA admitted only white students.

46. The land grant funds accepted in trust by the state were lost when the Bank of Alabama went bankrupt in the panic of 1837. But the state accepted the land grant amount as a permanent debt against the state and agreed in the future to pay “interest” on that imaginary amount. This interest constituted the sole support for UA during much of the nineteenth century. Thornton (11/5/90) 34-37.

47. Alabama adopted a slave code similar to Georgia’s immediately upon its admission to the Union in 1819. In 1832, the year following Nat Turner’s bloody insurrection in Virginia, the Legislature of Alabama, like those in most other Southern states, enacted a statute making it a crime to instruct any black person, free or slave, in the arts of reading and writing. KX 653, 1832 Ala.Acts, sec. 10, p. 16. In addition, among other things, the act provided criminal penalties, in the form of “lashes on the bare back” and being sold into slavery, for free blacks who wrote passes or free paper for slaves, sec. 11, who sold to or bought from a slave “any article or commodity whatsoever, without a written permission from the master,” sec. 13, or who was found in the company of a slave without written permission of the master, sec. 14. Any person distributing “any seditious papers, pamphlets or writing, tending to produce conspiracy or insurrection or rebellion among the slaves or colored population” could be put to death. Sec. 13. Thornton (11/5/90) 37-39.

48. Dramatically evincing the resolve of whites during this period to totally control the thoughts and attitudes of all blacks, slave or free, the 1832 act even made it a crime for any slave or free person of color to “preach to, exhort, or harangue any slave or slaves, or free persons of color, unless in the presence of five respectable slave holders.” KX 653, sec. 24, p. 18. On the other hand, the law was not to “be so construed ... as to prevent free persons of color and slaves from attending places of public worship held by white persons.”

Id.,

sec. 22, p. 18. Thornton (11/5/90) 38-39.

49. With the possible exception of a creole school in Mobile, there is no record of a school for black children in the State of Alabama prior to 1860.

50. At the outbreak of the Civil War, there were about 1,900 public schools and 200 private schools serving Alabama’s white school-age children. Thornton (11/5/90) 42. There were seventeen private colleges, and only one public college— UA.

12

Id.

at 44 .

2. The Reconstruction Period

51. The blood letting of the Civil War ended in April 1865, but the pain of Reconstruction was just beginning. During Reconstruction, the issue of access of newly freed black people to all levels of education was central to the political debate that characterized this historical period in Alabama. Blacks were able to vote for the first time, and the Black Belt

13

counties in particular elected black men and their white Republican allies to the Legislature. Thornton (11/5/90) 125.

52. During Reconstruction it is not possible to separate issues of partisan politics from the over-arching issues of race.

[T]he Democratic Party was a white supremacist party, and the Republican— and all blacks were Republicans, or essentially all blacks were Republicans. Now, there were elements within the Republican Party who were hostile to their black fellow Republicans, but all blacks were Republicans and all Democrats were white supremacists, so in that sense

*1068

... what you have is the overlay of ordinary American political forms of election and passage of legislation over what is, in effect, a revolutionary situation over a deep seated division within the electorate over the nature of the polity and so there is not that consensus about aims or common set of presumptions about the goals of democracy and the welfare of the republic that ordinarily informs and surrounds the competition between the parties.

In fact, the parties are deeply divided over the most fundamental philosophical issues and those issues, the issues that chiefly divide them are racial, that is to say the structure of the society, what the society is going to look like now that the blacks have been freed.

Thornton (11/5/90) 124-25.

53. The white supremacist attitude of this period is one which

desire[s] to preserve blacks in a subordinate position within the society. And as those whites, who held this idea would have understood it, to preserve civilization in the republic, ..., they understand themselves to be fighting to preserve the essence of the republic.

Thornton (11/5/90) 128.

14

54. The dilemma for the Republican Party was always gaining and holding the support of enough white voters to parlay solid black support into electoral victory. The Democrats used the Ku Klux Klan and other means of violence, intimidation and social ostracism against those white persons who aligned with the Republican Party. Even white Republicans openly hostile to blacks’ interests were ostracized merely for appearing on the same ticket with black candidates or for sitting in the Legislature with black Republicans.

And of course, in the case of some scalawags, that has the effect of driving them to ostentatious desire to demonstrate that they ... do not accept black goals and eventually it has the effect in some cases of simply driving them out of the Republican party and they join the Democratic party. By 1874 that had happened on quite a broad front and that’s what we mean by drawing the color line, forcing all whites on one side and leaving the other side essentially black.

Thornton (11/5/90) 126-27.

55. As described by historian William Warren Rogers, any white politician who consents to appear before black politicians was looked upon

as a time-serving, degraded carpet-bag-ger, willing to accept office from a negro constituency.... The white man who would submit to be summoned by a few negro politicians and made to render an account of his stewardship, and eat his own words, is a stigma on his color, and is beneath the respect of the blackest and most ignorant negro in the United States.

Thornton (11/5/90) 127-28,

quoting

The Butler

Courier,

October 14, 1882, from W. Rogers,

August Reckoning: Jack Turner and Racism in Post-Civil War Alabama

153 (1973).

15

56. On September 12, 1865, a state constitutional convention opened in Montgomery with 99 elected delegates, all of them whites. The 1865 Convention consisted mostly of unionists; they differed with other native whites about secession, but they shared the deep-seated social and racial attitudes of other native whites. “All of

*1069

[them] believed that even though freed, the blacks had to be carefully regulated and controlled by the state government in order to preserve social order and the safety of the white population.” Thornton (11/5/90) 46-49.

57. The 1865 Alabama Constitution drafted by this convention denied blacks the right to vote, as had the Constitutions of 1819 and 1860, and it took no steps to provide them with educational opportunities. It apportioned representation in the General Assembly on the basis of white population. The all-white legislature elected under the 1865 Constitution enacted the so-called “Black Codes” for the regulation and control of black labor, refused to ratify the Fourteenth Amendment

16

, and rejected proposals to give blacks the right to vote. Governor Patton said:

We shall not only extend to the freedmen all their legitimate rights, but shall throw around them such effectual safeguards as will secure them in their full and complete enjoyment. At the same time it must be understood that politically and socially ours is a white man’s government.

Thornton (11/5/90) 49-56

quoting,

Bond,

Negro Education in Alabama: A Study in Cotton and Steel

23, (1969).

58. On March 2, 1867, the First Reconstruction Act was passed by Congress over the veto of President Johnson. It abolished the provisional governments of the Southern states and established districts under the control of the Union Army. The Second Reconstruction Act, adopted March 23, 1867, provided for the registration of prospective voters “without distinction as to race, creed, or color,” and for the holding of a Constitutional Convention to establish a new state government. A prerequisite to registration was subscription to the “Test Oath,” a proviso that effectively disfranchised all persons who had held office before the Civil War and then had supported the Confederacy. Thornton (11/5/90) 56-57.

59. Of the 100 delegates to the 1867 Constitutional Convention, 19 were black, at least 26 were “carpetbaggers” (white Republicans who came to Alabama after 1865), and at least 48 were “scalawags” (white Republicans who were in Alabama before the Civil War), and three were Democrats. Four Republicans cannot be further identified. Thornton (11/5/90) 58-60.

60. The 1867 Constitution enfranchised blacks and apportioned representation in the General Assembly on the basis of total population, including blacks. After the reregistration, there were about 90,000 black and 75,000 white registered voters in the state. Thornton (11/5/90) 57-58. The previous three Alabama constitutions (1819, 1861 and 1865) had simply been declared in effect by their respective conventions. But the Military Reconstruction Acts required the new constitution to be ratified by the voters.

61. The election to ratify the 1867 Alabama Constitution was held in February 1868, along with elections to state offices. White conservatives adopted a strategy of defeating the 1867 Constitution by refraining from voting, since the Reconstruction Act of March 2, 1867, provided that the Constitution should not be declared in force until ratified by a majority of voters. The vote was 70,812 for and 1,005 against the Constitution, which was less than half the approximately 170,000 registered voters. But the conservative strategy failed when Congress admitted Alabama as a reconstructed state in spite of the fact that the original proviso had not been met. Thornton (11/5/90) 61-68.

62. All the conservative boycott accomplished was a Republican sweep of nearly all state offices. The Senate was composed of 32 Republicans, only one of whom was black, 10 were carpetbaggers, 21 were scalawags, and one was a democratic conservative. The House of Representatives had 97 Republicans, at least 26 of whom were black, and 3 Democrats. Thornton (11/5/90) 68-69.

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63. Reflecting the importance blacks and Republicans placed on education, the 1867 Constitution completely centralized the entire state school system by delegating-full legislative power over all education matters to the State Board of Education, (“SBE”) including governance of the University of Alabama. Following the model of the Iowa constitution, the 1867 Alabama Constitution set up a procedure whereby the SBE would pass education laws, which then had to be signed or vetoed by the governor, with the SBE retaining the authority to override the governor’s veto. In addition, the Legislature retained the authority to declare any act of the SBE void. Thornton (11/5/90) 80-82.

64. In the 1870 elections, the Democrats won the governorship, a majority of the House of Representatives, and elected the State Superintendent of Education. The Republicans retained control of the Senate (whose members served for four years) and the elected State Board of Education. Thornton (11/5/90) 69-70. By then, Congress had removed the civil disabilities of most former Confederates, allowing them to register and vote.

Id.

at 58-59. So many Democrats participated in the 1870 election, amid considerable Ku Klux Klan activity, particularly in the western Black Belt. Most of the white counties in the northern hill counties and the southeastern wiregrass counties voted democratic.

Id.

at 69.

65. One reason the incumbent Republican Governor, William H. Smith, was defeated by Democrat Robert B. Lindsey in 1870, was the presence of a black candidate for Secretary of State on the Republican ticket, James Rapier. Most whites, including Republicans, were infuriated over the prospect of a black state officer sitting in authority over white people. If Rapier had been elected, he would have been the first black person ever to hold statewide office. Even though Smith ran a close race with Lindsey, Rapier finished dead last among all Republican candidates. Thornton (11/5/90) 70-71.

66. One black man, Peyton Finley of Montgomery, was elected from his congressional district to the State Board of Education. After the election, lots were drawn to divide up the seats into two-year and four-year terms, and Finley drew a two-year term. He therefore served from 1870 to 1872. Thornton (11/5/90) 72-73.

67. The Republicans regained the offices of Governor and State Superintendent of Education and a majority of the House of Representatives in the 1872 elections. The Democrats, however controlled the Senate by one vote. Thornton (11/5/90)

74-75. Republican rule would be short-lived.

68. In 1874 the Democrats drew the color line in order to eliminate the Republican threat to white supremacy once and for all. There was considerable intimidation and violence directed at both black and white Republicans, and outright fraud was used to stuff ballot boxes in the Black Belt. The Democrats circulated “massive fright propaganda” claiming that Republicans might seek racially mixed schools to win over whites in North Alabama, many of whom previously had voted with the Republicans. The Democrats won all the statewide offices and both houses of the legislature in 1874. Thornton (11/5/90) 75-76.

69. This Democratic victory led to adoption of the 1875 “Redeemer” Constitution, which

redeemed ... white rule. Redemption in all of the southern states is a term which essentially means the tossing out of Republicans and particularly blacks from public life, and the conversion of all offices to white Democratic incumbency.

Thornton (11/5/90) 79.

70. The Democratic white conservatives who took control of the Alabama State House in 1874 spun a web of subordination around black schools sufficient to ensure adequate white control of black educational aspirations. Thornton (11/5/90) 139-40. While

de facto

segregation existed from the beginning of Alabama's public school system, the Constitution of 1875 made segregated schools part of Alabama’s basic law. The members of the constitutional convention understood that this constitu

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tional segregation applied to all levels of public education. Thornton (11/5/90) 140-146.

71. The full scope and depth of the forms of racism created by post-Redemption white supremacy in Alabama is vividly described by Dr. Rogers in the preface to his book,

August Reckoning: Jack Turner and Racism in Post-Civil War Alabama

(1973):

The decades of [powerful Democratic] ascendancy came after 1874, as Alabama became a state whose institutions were frankly, admittedly, unashamedly, and triumphantly dominated by whites. The theory of white supremacy and black inferiority found daily expression and constant application. If Caucasian dominance became legally fixed and formalized (as it did), Anglo-Saxon superiority was no less manifest in unstated ways. If a white man and a black man met face to face on a narrow walk, it was the black who stepped aside to let the other pass; a white man’s surname was always prefaced with “Mister,” or some sort of title, a Negro’s never; purchases paid for in cash primarily involved the color green until a merchant was confronted simultaneously with two customers whom he must accommodate according to black or white.

White superiority was no less evident in a verbal folklore spawned by, repeated by, and believed by whites: Negro men were naturally lazy and without ambition, desirous of having sexual relations with white women, incapable of higher reasoning, uncontrollable when under the influence of liquor, and cursed forever with an offensive body smell. And yet with all his negative qualities, the black, according to the Southern mystique, given proper guidance by his white mentors was carefree, musical, naive, gentle, mercurial, anatomically limber, religious (in an outlandish way), and humorous. Still, the black race, as everyone knew,

was

inferior, and all things proceeded from this basic premise.

KX 3129 (emphasis in original).

72. Emmet O’Neal, who attended the 1875 and 1901 Constitutional Conventions and who was elected Governor of Alabama in 1910, said in a 1917 address to the Alabama State Bar Association:

The constitution of 1875 placed no restriction on negro suffrage. The Federal government was under the complete control of the Republican Party, which was bitterly hostile to the South. The fear of Federal interference, therefore, prevented any effort on the part of the framers of the constitution of 1875 from undertaking to restrict negro suffrage or lessen its admitted evils.

The negro vote constituted an overwhelming majority in that portion of the state known as the black belt, and it was sufficiently large in many other portions of the state, in combination with the white republicans, to constantly threaten white supremacy, which was the chief tenet of the Democratic Party. The fear of negro rule, with the misgovernment which would follow, and the race conflicts which it would create, constantly threatened the state and checked its progress. White supremacy was maintained by methods which could only find their justification in the imperious necessity of self-defense and self-protection. Negro rule meant that the white man must surrender his home and lands or remain under conditions which were intolerable. The white race had settled Alabama and owned its lands and hence was determined not to surrender to an alien and inferior race, which had been brought to Alabama as slaves and which had acquired the right of suffrage only by grant from the victorious North, and as one of the results of the war.

KX 3240, pp. 9-10.

73. The SBE was very unpopular with white Democrats and scalawag Republicans “because it aggressively sought educational opportunities for blacks and it cooperated with the schools that had been established in Alabama by white northern missionaries during the years after 1865.” Thornton (11/5/90) 83.

74. During the period of Redemption the SBE faced the wrath of the Democrats.

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The 1875 Constitution abolished the SBE both as the governing body of the University of Alabama and as the governing body of the public schools, in large part because it had sought to further equal educational opportunities for blacks. There would be no State Board of Education in Alabama from 1875 until 1919. Thornton (11/6/90) 130.

75. The 1875 Constitution retained the State Superintendent of Education as an elected official and gave him the authority to appoint all county superintendents of education. Thornton (11/5/90) 130.

3. The Early Establishment of the Board of Trustees for the University of Alabama and Auburn University

i.

Auburn University

76. In 1872, following the decision to make Auburn University the 1862 land grant college

17

the state Legislature established a separate gubernatorially appointed Board of Trustees for AU rather than placing Auburn under the authority of the SBE. Thornton (11/5/90) 123, 132.

77. The decision to structure the governance of AU under its own Board is at least as much political as it is racial. Thornton (11/5/90) 123. In 1872 there was a strong desire on the part of the Democrats in the Alabama House of Representatives to weaken Republican control of the SBE. Indeed, much of the Democratic hostility against the SBE proceeded from the fact that it was a Republican controlled branch of government.

Id.

at 123-24. While the state Senate is still under Republican control during this time, it is populated by a great many Republican scalawags “who are worried about racial supremacy, and so the racial element and the political element are linked together inextricably ... in the hostility to give administration of [land grant] funds to the [SBE].”

Id.

at 124.

78. The result of Democratic animosity to Republican control is the establishment of a gubernatorially chosen Board for AU. At the time Auburn was given its own Board, the governor of Alabama, Robert B. Lindsey, was a Democrat, and thus the effect of the decision is two-fold. First, the considerable moneys coming into the state through the Morrill Act of 1860 would not be under the control of the Republican SBE; and second, the University’s Board of Trustees would be all Democratic and consequently all white.

79. In 1875, Auburn University’s Board of Trustees is given constitutional status. Thornton (11/5/90) 132.

80. Upon review of the evidence, the Court is left with the firm impression that state partisan politics more than race played the major factor in the decision to give Auburn University a separate board of trustees in 1872.

18

ii.

The University of Alabama

81. Following the decision in 1875 to remove the University of Alabama from under the control of the SBE, UA was given a gubernatorial Board in the same manner as Auburn University. Thornton (11/5/90) 132. The University of Alabama operated with this form of governance until 1901 when a new constitution was debated and ratified.

82. The 1901 Constitution radically changed the manner of appointment to the UA Board, Thornton (11/5/90) 205. Instead of a gubernatorially appointed Board,

*1073

the Board becomes self-perpetuating and the members of the Board themselves elect the successors when a vacancy occurs. The newly chosen member is, however, subject to confirmation by the state Senate.

Ibid.

83. The impetus for the constitutional change of status for the Board of Trustees was essentially political. The change to a self-perpetuating Board was brought about at the instance of UA’s alumni to minimize the influence of then sitting governor, Joseph Forney Johnston. Thornton (11/5/90) 205-10.

84. As governor in 1899, Johnston, maneuvered the legislature into repealing the call for a constitutional convention it had passed in 1898. This became a heated political issue in Johnston’s unsuccessful campaign in 1900 to unseat longtime U.S. Senator John Tyler Morgan. Morgan attacked Johnston not only for canceling the previously authorized convention, but also for not enthusiastically supporting the disfranchisement of blacks. There was generally a deep hostility to Governor Johnston by the delegates to the Convention. This political animosity resulted in a number of constitutional provision which were directly intended as an affront to Governor Johnston’s power. One of those provisions prevented a governor from running for U.S. Senate until a year after he left the governor’s office. Another anti-Johnston provision was the self-perpetuating board of trustees for UA. Thornton (11/5/90) 205-10.

85. Part of the enthusiasm at the constitutional convention for the self-perpetuating board was that it eliminated the possibility that governors like Johnston would be able to manipulate the university’s Board.

86. Prior to the change in the UA Board, Governor Johnston had been involved in the questionable sale of coal lands belonging to the University for his own pecuniary benefit. Governor Johnston accomplished this sale by manipulating and brow beating the Board into approving the sale. Thornton (11/5/90) 208. There was apparently considerable hostility toward Governor Johnston by many of those in the General Assembly — and in particular by UA alumni — who felt that his involvement in the sale of UA’s coal lands rendered him unfit to designate board members to the university. There was also considerable disgust with the Governor over the strong arm manner in which he cancelled the 1899 constitutional convention. Thornton (11/5/90) 205-10.

87. Upon review of the evidence, the Court is left with the firm impression that state partisan politics and factors other than race played the major role in the decision to give the University of Alabama’s Board of Trustees the right of self-perpetuation, subject to senate confirmation.

4. Blacks’ Early Efforts For Equality Through Education

88. After the Civil War, during Congressional Reconstruction, a great struggle ensued over how much and what type education blacks in Alabama would have access to. The freedmen, who made up nearly half the state’s population, laid all their hopes for social equality on education, and they flocked in great numbers to every school available to them. Blacks’ aspirations were supported by Northern white missionaries, who opened schools that taught blacks liberal curricula and equal rights. They were opposed by most native whites, who used violence to discourage any kind of education for blacks.

89. The hostile attitude of white Alabamians toward the northern missionary schools for blacks during Reconstruction was succinctly stated by one of the Knight Plaintiff’s expert historians, Dr. J. Mills Thornton.

[The northern missionary schools] were highly unpopular with considerable number of whites who regarded the education of blacks as a threat and particularly were unpopular because it was thought that these missionaries were teaching blacks false notions. They were teaching them equality of the races, they were teaching them to be assertive. They were encouraging them not to continue a subservient role in the economy as part of the labor force. And white

*1074

Democrats were also, particularly those allied with the Ku Klux Klan, were very hostile also to the history books that were used in these schools, because they thought that they presented a northern view of American history.

Thornton (11/5/90) 83-84.

90. Access to higher education was particularly important to the freedmen’s program of achieving full citizenship socially and economically. Higher education was the doorway to the many middle class social roles from which blacks had been excluded. “[T]he establishment of a black college therefore seemed to be essential to the general liberation of the freedmen.” Thornton (11/5/90) 108.

91. The main pressure on Alabama’s whites to establish black schools came from Northern missionaries, who taught the newly freed blacks such “alien” values as equality, brotherhood, and citizenship for all, along with the traditional three R’s. Thornton (11/5/90) 83-84.

92. Whether the newly freed blacks were to be taught in integrated schools was an issue that consumed considerable debate but whose outcome was never seriously in question.

93. Among white Republicans, only some carpetbaggers favored school integration; very few of the native white scalawags did. In fact, 23 of the scalawag delegates to the 1867 constitutional convention had repudiated the constitution adopted by the convention because it failed explicitly to require segregated schools and prohibit miscegenation. Thornton (11/5/90) 63-64.

94. The Democratic charges in the 1874 elections that Republicans would promote school integration were outright lies. “[T]he scalawag element in the Republican party was strongly opposed to integration of the public schools. Very few scalawags would have accepted integration of schools or for that matter any other facilities.” Thornton (11/5/90) 76.

95. In order to gain access to the education they so desperately desired, Alabama’s black citizens compromised with conservative whites on two major issues: segregation and white control.

96. Black political leaders sought to require racially integrated schools. Black members of the 1867 Constitutional Convention promoted a requirement of integration, but white scalawags tried to write segregation into the constitution. As a compromise, the 1868 Constitution ended up requiring the SBE to establish “one or more” public schools in each township or school district. KX 655, 1868 Ala. Const., Art. XI, sec. 6. Then at its first session the SBE passed a law requiring each township to have a school for whites and a school for blacks, unless every white parent in the township was willing to have one racially integrated school. This provision had the necessary result of requiring segregated schools. Thornton (11/5/90) 85-86.

5. Blacks’ Early Efforts To Establish Colleges

i..

Alabama State University

97. The Reconstruction SBE in 1868 first provided education for blacks in the form of normal schools.

19

The 1868 action of the SBE did not require racially separate classes, but in 1869 the SBE provided for four normal schools, including Marion and Huntsville, each of which was to have one department for white students and one department for black students. Since there

*1075

were American Missionary Association schools at each of these places, the black normal classes probably met in conjunction with the AMA schools. Thornton (11/5/90) 89-90.

98. ASU’s predecessor, the Lincoln School in Marion, was founded by black citizens with help from the AMA. In January 1867, the AMA sent a young white teacher from Ohio, Thomas C. Steward, to begin a school for blacks in Marion. Two white women were sent to teach as well, Miss. H.F. Treadwell of Massachusetts and Miss. May Senderling. Some 425 black students enrolled immediately, and Steward petitioned the Freedman’s Bureau for assistance in building a larger facility.

99. General Wager Swayne, Commissioner of the Freedmen’s Bureau in Alabama, agreed to help if black citizens themselves raised $500 and purchased the land. On July 18, 1867, nine black men, constituting the first governing board of ASU’s predecessor, filed papers with the Probate Judge of Perry County incorporating “The Lincoln School of Marion.” They were led by Alexander H. Curtis, a former slave who had purchased his own freedom in 1859. Curtis represented Marion and Perry County in the General Assembly for several years. The Lincoln School was wholly owned by the black people of Marion. The incorporation papers called for the election of the trustees by all black male residents of Marion over the age of twenty-one. The board had authority to hire and fire teachers and to manage the building and grounds. The $500 was raised among black people by private subscriptions, church contributions and two ladies’ fairs. Local whites in Marion contributed $250 to the building fund. The land was purchased for $400. The freedmen cleared the ground and built the school. The Lincoln School was not supported by the Perry County School Board, but by black citizens, student tuition and the AMA. Steward was appointed principal, and was assisted by Miss. Treadway, the only other teacher. The Lincoln School opened with 113 students, all black. With overwhelming black voter support, Thomas Steward was elected Senator from Perry County in 1868. Thornton (11/5/90) 89-94.

100. To obtain needed funds, the black trustees agreed in September 1868 to lease the Lincoln School for ten years to the AMA. Thornton (11/5/90) 90. The black citizens of Marion, however, retained ownership of the property, and the all-black Board of Trustees continued to function even after the AMA assumed control of Lincoln.

Ibid.

101. By the end of 1869, the Lincoln School faced its first financial crisis. The AMA’s funds were running out, and the Freedmen’s Bureau was phasing out as well. Even though Republicans controlled state government, they could not afford to offend too directly the system of white supremacy. Most white people in Marion were opposed to the Lincoln School because of the egalitarian style and content of education Steward and the AMA were affording blacks. In an attempt to force public funding of Lincoln, Senator Steward succeeded in getting a bill through the legislature on February 16, 1870, requiring Marion to levy a property tax of one-half of one percent to support education. Thornton (11/5/90) 91-92.

102. Whites were furious that their property would be taxed to support blacks’ education, and a lawsuit was filed by a white citizen of Marion, Elias Dunkin. The court enjoined collection of the tax and was applauded by the white newspaper in Marion:

It was a bare-faced attempt to rob the white people for the benefit of soap-eyed Steward, and as such it ought at least to have secured the condemnation at the hands of every white man in the town.

KX 3130.

103. During his two years of service on the SBE (1870-1872), Peyton Finley — the first elected black member of the SBE— was a strenuous advocate for the establishment of a university for blacks in Alabama. At the time of his election the University of Alabama was under SBE control. Finley’s interest in a black university did not extend to the idea that the University of Alabama should be integrated. Thornton (11/5/90)

*1076

101. In fact Finley never advocated racial integration in education. To this end, he is quoted to have said: “the colored race have no desire or inclination, nor would they under any circumstances attempt to interfere with the action of the State University, by any claim or pretext of right thereto....” Thornton (11/5/90) 104,

quoting

Bond,

Negro Education in Alabama: A Study in Cotton and Steel,

107 (1969). Instead, black political leaders — including Finley — pursued a policy of establishing separate educational institutions for blacks. Thus, the struggle for a black university must be seen as an effort to establish a uniquely distinct and separate black institution.

104. Desirous of achieving his dream, Finley, during his first session on the SBE, presented a resolution authorizing the State Superintendent to apply to Congress for the grant of additional public lands, like those used to fund the University of Alabama in 1819, to support the “establishment in this state of a university for the education of the colored race of this State.” Thornton (11/5/90) 105.

105. The SBE accepted Finley’s resolution, but nothing came of it as Congress did not act on the State Superintendent’s memorial. Thornton (11/5/90) 105.

106. Whites had refused to attend UA while it was governed by the “radical” Republican SBE. Peyton Finley’s election to the SBE gave credence to Democratic warnings that the Republicans intended to integrate the University of Alabama. Egged on by Ryland Randolph, editor of the Tuscaloosa

Monitor

and one of the few Democratic members of the Legislature, the Ku Klux Klan harassed and intimidated students who dared attend UA in 1871. There were fewer than a dozen students enrolled when the 1870-71 term began. Thornton (11/5/90) 97-100.

107. The assurance in Finley’s resolution that blacks would not demand integration of UA was sufficient to restore white support for the University of Alabama. Thornton (11/5/90) 103-04. In fact, the Republican-controlled SBE had never intended to integrate UA, and it took steps to reassure white Alabamians. Finley’s resolution was introduced at a joint meeting of the SBE and UA’s alumni at the commencement exercises in Spring 1871, and apparently was part of a compromise that brought back alumni support and the new students that depended on it. Thornton (11/5/90) 102-04.

108. As a result of financial difficulties, the Marion school was ultimately forced to accept white control by the SBE. Nevertheless, due to the unrelenting efforts of Peyton Finley the 1873 law establishing ASU's predecessor as a state-supported school expressly said: “the intent and purpose of this Act [is] to provide for the liberal education of the colored race in the same manner as is already provided for the education of the white race in our Universities and Colleges.”

109. On December 5, 1873, the SBE passed a bill accepting the donation of the AMA’s Lincoln Normal School in Marion on the condition that Alabama would make the school:- “A State Normal School and University for Colored Teachers and Students.” 1874 Ala.Acts, pp. 176-79. The act stipulated that state funding was contingent on the AMA and Lincoln’s trustees turning over complete control of the building and grounds to the SBE. The act established the oldest liberal arts state college for blacks in the United States.

20

110. Following the state’s takeover of the Lincoln School, the SBE, appointed a Board of Commissioners to oversee the institution. The Commission, which was majority white, removed Mr. Steward and replace him with George Card, a white man whose racial views were more satisfactory to the majority of whites in Marion. Thornton (11/5/90) 96.

111. George Card was himself replaced as president by another white man, William Burns Paterson, in July 1878. Like Card— and unlike Steward, Paterson was well received by the white citizens of Perry Coun

*1077

ty, having already demonstrated to whites in Greensboro, where he previously operated the Tullibody Academy for blacks, that his style of education would not offend the racial status quo. Paterson would develop a good relationship with the whites in Marion and would even invite them to the school’s commencement exercises. He would assure them that “there will be nothing in the speeches, essays, or any of the exercises, which will be in the least offensive to anyone.” Thornton (11/5/90) 146-47, 157-58; KX 3130, pp. 62-63.

112. Lincoln Normal School contributed significantly to the economy of Marion, and it quieted black opposition to the rule of white Democrats. Stephen Child, the only black member of the Board of Directors and spokesman for the blacks of Marion, stated:

The action of the school board inspired our people with confidence in their management, and we were grateful for the interest manifested in our education and improvement.... Most of us have abandoned politics and have devoted our time and labor to securing homes, making an honest living, and educating our children.

KX 3130, p. 63,

quoting

Child’s letter to the editor of the

Marion Standard,

January 12, 1887.

113. President Paterson and the Board of Directors for Lincoln never gave up their demands that the state fulfill the promise made in 1873 to provide black citizens university education. In the school’s annual report in October 1886, John Moore, treasurer of the school, made this appeal:

Again I desire to call attention to the fact that this institution was founded mainly for higher education of colored young men and women in the State. It was intended, as stated in the charter, to give them the same advantages as the whites have in their schools and colleges. So far it has been so conducted as to supply the colored race with just such training as was needed.... It is to be hoped that the State of Alabama will fulfill the pledge it has already made to establish a university department on a liberal basis, so that its colored citizens may be able to receive here a liberal education.... The State Normal School and University is a distinctively Alabama institution.... There is much to be done yet to adapt this school to the wants of its patrons.

KX 3130, p. 64.

114. For the next ten years ASU existed in Marion without incident and is allowed to operate a university department.

21

Thornton (11/5/90) 136-37. In 1887, however, all that changes.

115. In 1887, Howard College, a white Baptist school in Marion was considering moving to Birmingham. Many of the white citizens were desirous of retaining Howard in the town and thought that if ASU were not located in Marion that the Baptist State Convention would not move Howard. Thornton (11/5/90) 171. Consequently, tension developed between Marion and ASU that spilled over into the student bodies of the two schools. Eventually there was a violent confrontation between white students from Howard and black students from Alabama State. The resulting furor apparently sparked a white outburst against the Lincoln school.

Ibid.

116. In December 1886 a petition was circulated by some white citizens of Marion seeking Lincoln’s removal “in the interest of the good people here_” KX 3130. The petition denied

any prejudice toward the education of the Negro, for should this school remain here, it would inevitably close four institutions now fostered by our town. It has proven a stumbling block to our progress, by standing off those who would locate here to educate their children in our schools.

Ibid.

117. President Paterson gave this account of the precipitating altercation to Booker T. Washington:

*1078

The real facts are that twenty to thirty of the Howard cadets surrounded one of our students, because he would not get off the sidewalk to let them pass. They clubbed him and would have killed him, but for his agility and bravery, he defended himself heroically and no one knowing the truth can blame him. There was great excitement for a few days, and we were prepared to repel an attack by Howard Boys.... This question of self-defense must be settled and the sooner, the better. An educated man will not and cannot take the abuse that an ignorant one will....

KX 3130, p. 68.

118. The blacks retaliated against the whites who wanted Lincoln removed with a boycott which drove three white merchants into bankruptcy. Stephen Child stated the position of black citizens:

We want the school to remain as it is. There are about three hundred children of school age around Marion. We are not able to send them off and we must try to educate them here. It will be hard for us to do it, if the school is moved; but believing as we do, that education is about all that this generation can give their children, we are determined to do our duty.

KX 3130, p. 69,

quoting Standard,

Jan. 12, 1887.

119. On February 9, 1887, C.D. Hogue, Representative from Perry County, introduced a bill in the legislature requiring the school to be located elsewhere and to be called the “Alabama Colored People’s University.” KX 654; Thornton (11/5/90) 172-73.

120. The state legislature passed the bill requiring “the State normal school and university” at Marion to be relocated, effective August 1887, without a dissenting vote. KX 654, Ala.Acts 1886-87, pp. 198-201, Feb. 25, 1887, sec. 5. In the Senate, R.H. Sterrett, from Jefferson County, had attached an amendment providing that the university “shall not be located in any community ... without the consent of the citizens of said community.”

Ibid.

The 1887 Act “created and established a university for the education of the colored people of Alabama, to be called The Alabama Colored People’s University.”

Id.,

sec. 1. The “Colored People’s University Act” contained provisions intended to limit blacks’ education and ensure it would not threaten white supremacy by encouraging blacks to covet social roles beyond menial laborer, including a prohibition against instruction in Latin and other classical languages and an emphasis on practical instead of academic training. Thornton (11/5/90) 174-75.

121. The Act required the Governor to appoint a board of trustees consisting of nine members plus the Governor and state superintendent as

ex officio

members.

Id.,

sec. 2. The first task of the new board of trustees would be to find another location for “The Alabama Colored People’s University.”

Id.,

sec. 3.

122. Governor Seay appointed an all-white board of trustees for the Colored People’s University. Black citizens around the state protested and demanded at least a black majority on the board. Thornton (11/5/90) 173-74.

123. One black newspaper said that Governor Seay

made a serious mistake in ignoring entirely the colored citizens of the State in making his appointments of ... Trustees of the State Colored University. We fail to see the justice or equity of policy in appointing an exclusively white body of Trustees over a colored Institution. On the contrary, it is plainly evident that colored trustees or at least a mixed body would be better adapted to such an institution, would know its wants and needs better, and therefore be the better able to manage its affairs successfully.

KX 3130, Caver, p. 80,

quoting Gazette

(Huntsville), June 25, 1887.

124. Moderate whites thought the all-white board was needed to save the school. Fleming Law, a future white trustee from Union Springs, wrote to Seay opposing appointment of any blacks to the board, because it was “doubtful ... that any colored man you might appoint would be of any advantage to the board.” KX 3130, Caver,

*1079

p. 76. Law contended that white board members would know the “character and wants of the Negro in mental or educational” needs, and that “the intelligent portion of the Negroes ... would have more confidence in the judgement and ability of the whites, than of their own color.”

Ibid.;

Thornton (11/5/90) 175-77.

125. One of the new white trustees of ASU, Speaker of the House Thomas Goode Jones said:

The absolute control of the Trustees over the institution ought to convince anyone that it could never become a hot bed of rudeness and insult. Education controlled and directed by our own people will repress not merely the expression but thought ... and produce on the contrary, politeness, good will, respect for authority and good deportment.

KX 3128, p. 11.

126. ASU’s white board looked for a place to relocate the school. Black citizens in Birmingham, Mobile, Tuscaloosa, Brew-ton, Selma and Montgomery offered substantial donations of land and money to attract the school to their cities. But whites in most of those places (Brewton appears to have been an exception) bitterly resisted location of the black school in their town. When the Mayor of Tuscaloosa suggested it made sense to put the Colored University in the same vicinity as UA, the

Tuscaloosa Times

reacted vehemently:

Some of our colored fellow-citizens have been making efforts to secure the location of the colored university for Tuscaloosa. We hope they will not succeed. We would consider such success the greatest calamity.... THE COLORED UNIVERSITY MUST NOT BE LOCATED AT TUSCALOOSA.

KX 3130, p. 81,

quoting Tuscaloosa Times,

March 16, 1887.

127. When Mobile, Tuscaloosa and Brewton were ruled out, the

Mobile Register

expressed its pleasure, saying Montgomery’s advantage was that the “colored student ... can learn much about the noble art of ‘shine em up, sir’ in his leisure moments. We believe there are more bootblacks in Montgomery to the square foot than any city in the country.” KX 3130, p. 86,

quoting Mobile Register,

May 26, 1887. Thornton (11/5/90) 177-78.

128. The Board chose Montgomery, overcoming opposition both by some whites and by Booker T. Washington, who was concerned about the state institution’s proximity to Tuskegee. The board selected Montgomery on condition that its citizens raise $5,000 and purchase title to the land by August 15,1887. Virtually all this money and land was raised by blacks in Montgomery, led by James Hale, a wealthy black contractor. Thornton (11/5/90) 102.

129. The advocates of Montgomery as the site for ASU almost suffered a fatal setback in June 1887, when William Hooper Councill, President of Alabama A & M’s predecessor in Huntsville, tried to ride in a first-class railroad car and was thrown off the train. As had been the case over the Howard incident in Marion, the Councill incident rekindled the ever present fear among whites that too much education would undermine the subordinate social status assigned to blacks. The Democratic newspaper in Montgomery raised the issue explicitly:

The

Advertiser

has been throwing the doors of Montgomery wide open to the Colored State University. Nay more. We have been urging the white people to help the Negroes to help themselves. It is a good policy, it is humanity, it is business.

Lately we are confronted with the question, “Might not the president of this same university march his school into the cars reserved for white people, leaving the colored coach empty, thus reenacting at our own depot the scenes of Saturday at Huntsville?” This fellow Council is doing his race more harm than he dreams of perhaps.

KX 3130, pp. 94-95,

quoting

Montgomery

Advertiser,

June 8, 1887.

130. To those white citizens of Montgomery who were concerned about the black school moving there, the local trustee, T.G. Jones, issued reassurance that the white board would totally control the school and that the school would be “an

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industrial school.” As late as 1876 the superintendent of education could say that the school was to give blacks “collegiate and University education,” by 1887 a definite change had occurred. Jones, quoting from the act. creating the university, emphasized that the purpose of the school was “that the students may be taught in the best manner possible, the things they are to live by; preferring always the English language and the industries to an education for culture only.” KX 3128, p. 12.

131. Nevertheless, vigorous white opposition to the Colored University was aroused in Montgomery. Jesse C. Duke, editor of the black newspaper, the

Herald,

wrote an article on August 13, 1887, about the lynching of a black boy accused of raping a white girl:

Every day or so, we read of the lynching' of some Negro for the outraging of some white woman. Why is it that white women attract Negro men now more than in former days? There was a time when such a thing was unheard of. There is a secret to this thing, and we greatly suspect it is the growing appreciation of the white Juliet for the colored Romeo, as he becomes more intelligent and refined.

KX 3130, pp. 101-02..

132. Duke’s editorial had an immediate explosive effect. Duke was run out of town, barely escaping lynching himself. And the uproar was quickly linked to the proposed Colored People’s University. Thornton (11/5/90) 179-80.

133. On August 17, 1887, about one hundred white citizens met in Montgomery and adopted a resolution against location of ASU in Montgomery:

[S]ince the

Herald,

an infamous sheet, published in this city by colored men and owned and edited by the most intelligent and educated of their race, who are signers to calls for aid to assist in bring[ing] to our city the colored university, has seen fit to express in the columns sentiments relative to the elevation and education of the colored man being an attraction and a preference toward him by the white ladies of this community; that as citizens of Montgomery, we depreciate [sic] any further efforts being made to introduce any such ‘educated’ Romeos in our midst, and request that all subscriptions among the white people of this city withdraw their [support] or other countenance or aid in any matter whatever at once for the building of or bring to this city any such university.

KX 3130, pp. 102-03,

quoting Mobile Daily Register,

August 18, 1887.

134. On August 30,1887, the

Montgomery Daily Dispatch

published an editorial that explicitly linked blacks’ educational, political and social rights:

What of all this recent ado about ‘cuffy’ and his college in the city of Montgomery? Have we so recently taken the wind out of the political sails of the radical party in becoming the fostering parent of co-education of the races in our midst, and elevated the Negro already to the conspicuous standard of Duke, McEwen and company? This demonstrates the aptness of the Negro for progressive retrogression and exemplified the natural effect of education on the colored race. Will not good result from the vile sentiments published to the world by these editors through the columns of this Negro sheet issued in the capital city of the State of Alabama? Duke is doubtless a true representative of his race and has demonstrated to some extent the effect which co-education would have upon the balance of his race_ I am a true friend to the Negro while he is in his proper place, and advocate the protection of his personal rights of life, liberty and property under the laws of the state and have no objection to the education of their race at their own expense, and separate and apart from the education of the white, and to let them work out the problems of their future destiny themselves.

KX 3130, pp. 104-05.

135. James Hale protested that his whole race should not be punished for Duke’s intemperate views. Hale presented a series of resolutions adopted by. some of the prominent black men “disclaiming sympathy with Duke or his paper, and con

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demning in the strongest terms the article Duke had written. KX 3130, p. 107.

136. Some Montgomery whites filed suit to block location of ASU in their city. The plaintiffs argued that establishment of a black school would lead to social equality and the breakdown of white supremacy, and that the ASU board’s decision to locate in Montgomery violated section 3 of the 1887 Act:

“Provided,

that no place shall be selected against the wishes of the people of said place.” Thornton (11/5/90) 180-81.

137. The Alabama Supreme Court ruled for the white plaintiffs without expressly addressing their white supremacist argument. But the court’s ruling had the same effect as if it had accepted plaintiffs’ contention that university education for blacks was against state policy. In

Elsberry v. Seay,

83 Ala. 614 , 3 So. 804 (1887), the court held that the 1887 Act violated the 1875 Alabama Constitution by funding a university out of the common school fund. Since there was no chance the Democratic Legislature was going to appropriate other state monies for a black university, the ruling meant that, ASU was constitutionally restricted to the role of a normal school, the only kind of higher education that could be funded by the common school fund. KX 700; Thornton (11/5/90) 180-84.

138. The

Elsberry

court reasoned that the legislature was constitutionally bound “by the conservative principle” of the 1875 Constitution that public schools should provide “at least elementary” education, and that “the term, public schools, was employed in the constitution in its popular meaning and sense — the system of public schools to which the people of the State had been accustomed, and as they understand it, in adopting the constitution.” 83 Ala. at 617-18 , 3 So. 804 , KX 700.

Though separate schools for the children of the two races are wisely provided, equal benefit enures and is preserved by the apportionment of the aggregate school fund between the races, in proportion to the number of children of each race. The system may consist of graded schools — from the primary to the high school, and of higher grades; but provision should be made, when requisite, in each school for the education of all the children, within the constitutional ages, in the same branches; age, capacity and advancement only being regarded. The intention is, that education in the same branches shall be equally accessible to all the children of the State.

The act in question, not only does not purport, but negatives the idea, that the University thereby established should constitute a part of the system of common schools. It establishes a University, with the implied privileges and powers appertaining to such institutions of learning, and as contra-distinguished from high schools, and even colleges. It is not subject to the supervision of the Superintendent of Education, in whom the constitution vests the supervision of the public schools. It provides for the appointment of trustees, who are empowered to elect a faculty, and such officers and agents as they deem necessary; to discharge any member of the faculty, or officer or agent, at their pleasure; to prescribe their duties, and fix their compensation; and, generally, to govern and control the faculty and the University, “so that the students therein may be taught in the best manner possible the things they are to live by, preferring always the English language and the industries, to an education for culture only.” The act authorizes the trustees, in the event no suitable lands or buildings are given for the location of the University, to buy not exceeding forty acres of land, and, for the purpose of buying the land and erecting suitable buildings thereon, appropriates the sum of ten thousand dollars, payable on the order of the Governor, in amounts, and at times specified; and also appropriates for the support and maintenance of the University the sum of seven thousand and five hundred dollars annually, to be paid to the treasurer in equal installments, on the first days of January, April and October of every year; and further provides that these several sums so appropriated shall be set apart and

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appropriated from the school fund for the education of the colored race.

83 Ala. at 618-19 , 3 So. 804 . The court recognized the authority of the legislature to establish universities separate from the public schools, provided they were not paid for out of the common fund. 83 Ala. at 619 , 3 So. 804 , KX 700. ■

But the legislature is unauthorized, by express or implied repeal, to disturb or destroy the equality of the apportionment of the sum appropriated for public schools, between the respective races, and devote a portion of the amount apportioned exclusively to one race, to another foreign and distinct purpose, leaving the amount apportioned to the other race intact.

83 Ala. at 619-20 , 3 So. 804 .

139. The court then rejected the argument that its ruling effectively declared all the normal schools (including white normal schools) unconstitutional. “Normal schools may or may not be regarded a part of the system of public schools, and as adjuncts thereto, according to the provisions of the creating acts.” 83 Ala. at 620 , 3 So. 804 .

140. The author of the

Elsberry v. Seay

opinion was Justice David Clopton, who formerly had been a law partner of the Chief Justice, George W. Stone. Both justices were “much less open to the advancement of blacks than either [Thomas G.] Jones or [Governor] Seay or the more moderate elements within the Democratic Par-ty_” Thornton (11/5/90) 185. Clopton had been a leading secessionist in Alabama and in the U.S. Congress during the years leading up to the Civil War. An extreme Southern rights advocate within the national Democratic Party during the 1850’s, Clopton would later serve in the Confederate Congress during the southern rebellion.

Ibid.

141. Chief Justice Stone vacated his seat on the Alabama Supreme Court in 1865 in response to the South’s defeat in the Civil War. While Stone was off the court, he and Clopton formed a law firm in Montgomery that “became the principal law firm of the Democratic Party. It was very deeply involved in Democratic party politics and in the efforts to overthrow Republican rule.” Thornton (11/5/90) 186; Thornton (11/7/90) 257-58. According to Dr. Thornton,

there is no question that both Stone and Clopton had particularly aggressive white supremacist views and were ... particularly dedicated during reconstruction to drawing the color line and were particularly hostile to Republicans, to the Republican party and all the things for which it stood.

Thornton (11/5/90) 187-88.

142. The black press across the United States berated the

Elsberry v. Seay

decision. The Cleveland

Gazette

said the Alabama Supreme Court’s decision was an attempt “to defeat the Negro; to crush him out; to keep him in subjection; to prevent any more independent thinkers like Duke from rising up in their midst.” Caver 110-11,

quoting Gazette

(Cleveland), March 31, 1888; Thornton (11/5/90) 189.

143. Of $7500 provided by the Legislature to support ASU, only $2500 had been received prior to the Supreme Court’s decision. The school was forced to survive on this, a $500 gift from the Peabody Fund, and limited tuition, along with the money that had been raised by the black community. ASU went into debt, and had to be rescued by an act adopted February 20, 1889, appropriating public school funds for ASU to be operated strictly as a normal school. Thornton (11/5/90) 188.

144. By 1880, ASU is chiefly a high school dedicated strictly to a normal school function. It will be forty years before ASU will again grant four-year college degrees. “Indeed, Alabama State is going to remain essentially a black high school in Montgomery until 1921 when it is elevated to junior college status, and then in 1929, when it is once again restored to the status as a four year degree granting institution of higher learning.” Thornton (11/5/90) 198.

a. The State’s Nineteenth Century Promise Of A University Education For Blacks At ASU

145. The Court has examined the events leading up to the resolution of the SBE

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adopting ASU’s predecessor as a state supported institution. The resolution provided that the SBE would take control of ASU on the condition that Alabama would make the school “[a] State Normal School and University for Colored Teachers and Students” designed to “provide for the liberal education of the colored race in the same manner as is already provided for the education of the white race in our Universities and Colleges.” 1874 Ala.Acts, pp. 176-179.

146. Much, though not all of the Knight Plaintiffs’ argument in support of the enhancement of ASU is based on the state’s failure to create at Marion (the location of ASU’s predecessor) an institution which provided university level education to blacks. The historical repudiation of this “promise” is manifested in the early limitation of ASU’s mission to that of a normal school. According to the Knight Plaintiffs the mission limitation continues to this day. The private Plaintiffs believe that the essence of the promise by the state acting through the SBE was that Alabama State would be the black counterpart of UA. It is contended that since the state has never fulfilled its promise, ASU is currently entitled to enhancement to achieve the original objectives of the state.

147. There is more than ample évidence to substantiate the Knight Plaintiffs’ assertion that the state refused for discriminatory reasons to allow ASU to carry out a university mission starting in the late nineteenth century. Nevertheless, this repudiation does not entitle ASU as an institution to any redress against the state. The failure of the state to initially allow ASU its promised university mission is no more a basis of liability today than would a claim that Alabama State was not made the equivalent of UA or any other state institution during the era of

Plessy v. Ferguson,

163 U.S. 537 , 16 S.Ct. 1138 , 41 L.Ed. 256 (1896). Such arguments are constitutional anathema.

148. At the conclusion of the evidence the Court posed a series of questions to the parties and asked that they be briefed. One of the questions asked the Knight Plaintiffs was as follows:

Let me pose another question that the Court will have to face if there is a finding of liability, and that is simply how can the Court order the state to implement a full range of graduate and first professional programs at ... [Alabama State University] without running afoul of the Constitution of the United States, if the Court accepts the position ... that [ASU] ... [was] supposed to be [a] comparable institution[ ] with ... [the] University of Alabama?

Court’s concluding remarks (4/16/91) 58. The Plaintiffs never addressed the Court’s concern directly.

149. The legal quandaries faced by the Knight Plaintiffs on this issue are substantial. For example, the Eleventh Circuit has clearly held that neither ASU or any other state instrumentality has standing to sue the state under the Fourteenth Amendment or Tile VI.

United States v. State of Alabama,

791 F.2d 1450, 1456 (11th Cir.1986). Of course, this is a claim brought by the Knight Plaintiffs who, in most respects are not the alter ego of either ASU or AAMU. Notwithstanding the clear lines of demarcation which usually delineate the Knight Plaintiffs from their Allied Defendants, their claims in this instance are indistinguishable from, and wholly dependent upon their close symbiosis with the ASU. In short, the claim is not one properly belonging to the Knight Plaintiffs. It is a claim based purely on the state’s omission with regard to one of its instrumentalities. The objective of the claim is to secure for ASU institutional enhancement.

150. To the extent there was a promise, it offered no more than to “provide for a liberal education of the colored race in the same manner as provided” white college and university students by Alabama standards in 1874.

151. The Court has alluded to another difficulty with the Knight Plaintiffs’ position, and that is, that the very nature of the state’s “promise” is itself unconstitutional. It is illogical to believe that the Court can — or should — impose liability on the state today because of the state’s failure to perform an obligation in the past, which

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had it done so today would be uncons

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