Knight v. State of Alabama

The Legal Standard of Fordice and Knight. 281

DEFINITIONS. 282

Student Choice Generally. 282

Specifies of Student Choice . 282

Segregative Effects. 284

Educational Soundness. 284

Practicability. 285

The Court-appointed Neutral Experts. 285

Liability and the court-appointed Neutral Experts . 286

Mission — What the Court must evaluate. 287

Mission, Role and Scope in Higher Education. 290

Programs. 290

ACHE and the HBIs in the Past. 290

Role. 291

Programs. 291

The Predicates. 292

The University of Alabama Huntsville. 292

Additional Findings. 292

UAH’s Financial Situation. 292

Business Program Accreditation Generally. 292

UAH’s Business Program. 293

UAH’s Education Program. 293

Findings Regarding Nursing at UAH. 294

Impracticability and Educational Unsoundness of Diminishing UAH’s Programs .:. 294

Business. 294

Education. 295

Nursing. 295

Alabama A & M University. 296

Enrollment Generally. 296

Teacher Education. 296

Instability in Leadership at AAMU. 296

Of Business, Bonds, and Buildings at AAMU. 296

Calhoun State Community College. 297

Enrollment. 297

The Aeustar Facility. 298

The Montgomery Situation. 298

Previous Findings. 298

Joint and Cooperative Programs. 299

ASU and TSUM. 299

ASU and AUM. 299

Troy State University in Montgomery. 300

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Courses Relinquished by TSUM in Consent Decree.

Distance Learning at Troy State.

Degrees Awarded at TSUM and ASU.

Alabama State University.

Enrollment.

AAUP Censure .

Negative Media Coverage.

State Employee Training.

Accounting at Auburn University in Montgomery and Alabama State University .

Allied Health Programs in Montgomery.

Policies and Practices With Continuing Segregative Effects.

Proximate Institutions .

Funding.

Catching up.

ASU’s and AAMU’s Outspoken Commitment to Their Heritage.

Leadership at ASU and AAMU.

REMEDIAL CONSIDERATIONS.

Program Transfer Generally.

Engineering at AAMU.

AAMU and CSCC-H..

Other-Race Scholarships.

Generally.

AAMU and ASU.

A Critical Mass.

Advertising.

Closing or Merging TSUM.

Endowments.

LAND GRANT .

Current Posture.

Possible Segregative Effects.

Extension.

Black Involvement in Extension Policy-Making.

Generally.

ACES Specialists.

From the Bottom.

From the Top .

From the Middle.

Black Involvement in Research Policy Making.

Delivery of Extension Services and Black Farmers.

Effect of Land Grant Funding on Student Choice .

Urban Rural Split.

Remedial Findings.

The Extension Director.

Other States.

Tuskegee University.

CURRICULUM.

Generally.

Standard of Deficiency — or the Lack Thereof.

Sufficiency of Incorporation of Black Thought, History and Culture in the PWIs’

General and Core Currículums. t-CO CO

Traceability. CO CO

If “Traceable,” Then Only to General Societal Factors. QO CO CO

Current Segregative Effects. CS CO CO

The Absenee-of-a-Black-Studies-Program Standard for Deficiency. o ^ CO

Plaintiffs’ Proposed Remedy Constitutes Attempt to Circumvent the Burden they

bear under Fordice. rtf CO

Intentional Discrimination — Legal Principles.

Intentional Discrimination Across the Higher Education System.

Intentional Discrimination at UAB. rtf CO

Plaintiffs’ First Amendment Argument. rtf CO

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Plaintiffs’ Proposed Remedy Constitutes Attempt to Circumvent Burden they would bear in First Amendment case. 348

REMEDIAL DECREE. 348

APPENDIX . 375

ABBREVIATIONS

The following abbreviations are used by the Court.

AAMU —Alabama A & M University

ACHE —Alabama Commission on Higher Education

ASU —Alabama State University

AU —Auburn University

AUM —Auburn University at Montgomery

CSCC —Calhoun State Community College

CSCC-H —Calhoun State Community College at Huntsville

CT —The Court

HBI —Historically Black Institution

JSU —Jacksonville State University

KN —Knight Plaintiffs

LU —Livingston University

PWI —Predominantly White Institution

SBE —State Board of Education

ST —State Alabama

TSUM —Troy State University at Montgomery

TSUS —Troy State University System

UA —University of Alabama

UAB —University of Alabama at Birmingham

UAH —University of Alabama at Huntsville

UAS —University of Alabama System

UNA —University of Northern Alabama

US —United States of America

Record citations are abbreviated as follows

Trial Transcripts — [witness] (date) [page]; e.g. Blow (3/1/95) 6.

Exhibits — [Year] [Party] X, p._; e.g. 95 CTX 1 p. 12.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND REMEDIAL DECREE

HAROLD L. MURPHY, District Judge.

This ease is before the Court, after remand, for further consideration. A more complete history of the case is set forth in the Court’s previous order.

Knight v. Alabama,

787 F.Supp. 1030 (N.D.Ala.1991),

rev’d in part and remanded,

14 F.3d 1534 (11th Cir.1994). The remanded issues, with one narrow exception in the curriculum area, require the Court to analyze questions of fact or mixed questions of law and fact. The Court, therefore, sets out briefly at the beginning the relevant legal standards from

United States v. Fordice

as interpreted by

Knight v. Alabama,

but all findings and conclusions supporting the Court’s remedy are set forth together in the body of the Court’s order.

The Court hereby incorporates its 1991 Order and Decree, except as reversed by the Eleventh Circuit or as inconsistent with the findings made below.

After a six month trial in 1990-91 and a six week trial in 1995, the compilation of a massive record, and the publication of two lengthy orders, the Court has found all the relevant facts that there are to be found about higher education in Alabama. In light of those multitudinous findings, the Court has imposed what it believes to be the most desegregative remedy that is educationally sound and practicable. If the Court has erred, it is not the result of bad lawyering by attorneys or lack of consideration by the Court. If this case should again be appealed, and the higher courts again return the case to this Court, the Court earnestly seeks guid-

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anee. This Court will enforce whatever remedy the higher courts think appropriate. This Court has done all it can do.

The Legal Standard of

Fordiee

and

Knight

The Eleventh Circuit established the following standard for higher education desegregation eases.

The Supreme Court prescribed a three-step analysis for determining whether a state has fully met its remedial obligation. The first step requires a simple assessment of whether any particular policy that has been challenged as segregative is “traceable” to decisions that were made or practices that were instituted in the past for segregative reasons, thus rendering it a vestige of segregation.

United States v. Fordice,

505 U.S. 717, 727-28 , 112 S.Ct. 2727, 2735, 2786 , [ 120 L.Ed.2d 575 ] (1992). Where plaintiffs in a lawsuit contend that a state or other public actor has not discharged its duty to dismantle its former system of de jure segregated higher education, the burden of proof lies with the charging party to show that a challenged contemporary policy is traceable to past segregation. Upon such a showing, “the burden of proof [then] falls upon the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system.”

Id.

at 740-41 , 112 S.Ct. at 2741 (emphasis in original). The state may carry this burden in one of two ways. It may show that the challenged contemporary policy, though traceable to segregation, is not constitutionally objectionable because it does not today have segregative effects.

Id.

at 727, 728 , 112 S.Ct. at 2736, 2737 . When gauging whether a policy traceable to segregation has such current effects, courts must consider the effect of the policy as it operates in combination with any other challenged policies.

Id.

at 738-39, 740-41 , 112 S.Ct. at 2741, 2742 .

Fordiee

recognized as having segregative effects policies that “influ-encie] student enrollment decisions.”

Id.

at 728, 742 , 112 S.Ct. at 2737, 2743 . In its discussion ... the Court offered examples of two broad categories of practices that can inhibit “free choice” by students as to university attendance. The first category comprises policies that have the effect of discouraging or preventing blacks from attending HWIs, examples of which include the maintenance of more stringent admissions requirements for HWIs than for HBIs.

Id.

at 733-39 , 112 S.Ct. at 2738-40 . The second category consists of policies that discourage whites from seeking to attend HBIs, examples of which include: duplication of programs at HBIs and HWIs in the same geographic area; the assignment to HBIs of institutional missions that restrict them to programs of instruction that cannot effectively attract whites; and the failure to fund HBIs comparably to HWIs or to locate high-prestige programs at HBIs.

Id.

at 736-40 , 112 S.Ct. at 2740-42 . As a result of such policies, disproportionate numbers of whites can satisfy their curricular desires at HWIs, and cannot satisfy them at HBIs, thereby discouraging them from choosing to attend HBIs.

Where the state proves that a challenged policy, shown by plaintiffs to be traceable to segregation, has no segre-gative effects, it is relieved of its duty to eliminate or modify the policy.

Id.

at 738-39 , 112 S.Ct. at 2741 . This inquiry constitutes the second step in the

Fordiee

analysis. The other circumstance in which a state may be relieved of its obligation to abolish or modify policies traceable to segregation obtains where, in effect, it simply is not possible to do so. Where “policies traceable to the de jure system are still in force and have discriminatory effects, those policies ... must be reformed to the extent practicable and consistent with sound educational practices.”

Id.

at 727 , 112 S.Ct. at 2736 . Thus, where the state can show that there are no less segregative alternatives which are practicable and educationally sound, then it may permissibly maintain the vestigial practice or policy in place.

Id.

at 733-42 , 112 S.Ct. at 2738-43 ;

id.

at 743-44 , 112 S.Ct. at 2744 (O’Connor, J., concurring). However, the state’s burden of proving that such alternatives are impracticable or educationally unsound is a heavy one and “the circumstances in which a State may maintain a policy or practice traceable to de jure segregation that has

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segregative effects are narrow.”

Id.

at 743 , 112 S.Ct. at 2743 (O’Connor, J., concurring).

The state is obligated to adopt, from among the full range of practicable and educationally sound alternatives to the challenged policy, the one that would achieve the greatest possible reduction in the identified segregative effects.

Id.

at 743-4 , 112 S.Ct. at 2744 (O’Connor, J., concurring). Moreover, because the obligation to remedy the segregative effects of vestiges of segregation is an affirmative duty borne by the state, the onus is not on the plaintiffs to propose the remedy options to be considered. Rather, a court should consider the full range of all possible alternative remedies, including closure, when determining which would achieve the greatest possible reduction in the identified segregative effects.

Id.

at 742 , 112 S.Ct. at 2743 : This examination of the practicability and educational soundness of possible alternatives or modifications to a challenged policy constitutes the third step in the

Fordice

analysis.

Where plaintiffs show that a current policy is traceable to past segregation, and defendants fail to demonstrate either (1) that the policy, in combination with other policies, has no current segregative effects, or (2) that none of the full range of less segregative alternative remedies are practicable and educationally sound, defendants must adopt the practicable and educationally sound alternatives that will bring about the greatest possible reduction in the segregative effects. “If the State has not discharged [this remedial] duty, it remains in violation of the Fourteenth Amendment.”

Id.

at 717 , 112 S.Ct. at 2735 .

Knight v. Alabama,

14 F.3d 1534, 1540-42 (11th Cir.1994).

DEFINITIONS

Student Choice Generally

1.In order to evaluate the likely consequences of various remedies, the Court finds facts regarding the underlying processes by which a student decides to attend, and persist at, a post-secondary school. Usually, the decision begins with the choice of a career goal, and includes initial choices about college majors, perhaps a change in those choices, and the decision to persist in the post-secondary education process and at a particular institution. The Court must evaluate the likely consequence of various remedies in the context of the complete student choice process. St. John (3/16/95) 10, 12.

2. There is a difference between college choice and student choice. Student choice involves broader considerations, from the formation of post-secondary and career aspirations, to issues of institutional access. St. John (3/16/95) 10, 12; 95 UASX 243, pp. 3-6.

3. College choice involves a student’s predisposition or aspiration to attend college, the search process, and the ultimate choice of an institution. The study of college choice involves examining how each phase develops and functions. Hossler (2/14/95) 11.

4. Student choice does not operate in a vacuum, but instead within the context of a larger set of decisions made by the university and individuals within the university, including admissions, financial aid, and other decisions affecting students. Student choice and student access are conceptually linked in that the decisions made by a student are not independent of the particular practices at an institution under consideration. That is, institutions make themselves more or less available and attractive to students through admissions criteria, recruitment efforts, financial aid and post-enrollment support activities. Allen (3/9/95) 19-21.

5. The broadest definition of student choice includes opportunity (and the minimization of the influence of academic and social constraints on access) as well as college choice and desegregation. 95 UASX 243, p. 31.

Specifics of Student Choice

6. Students must initially decide whether to attend a post-secondary educational institution. Many students make this decision by the eighth or ninth grade, and are influenced in their decision by factors such as parental experience with post-secondary education and parental encouragement to go on to post-

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secondary education, sler (2/14/95) 11-15. 95 UASX 243; Hos-

7. To the extent that particular racial, ethnic, or socioeconomic groups have lower college attendance rates, aspirations of students in those groups to attend post-secondary institutions may be influenced more heavily by non-family factors such as school officials, peers, and other non-familial efforts — such as providing information and encouragement to middle school students regarding post-secondary opportunities, and student financial aid. Hossler (2/14/95) 13; 95 UASX 243, pp. 10-12.

8. Of all of the factors influencing the decision of whether to attend post-secondary institutions, parental encouragement is the single best predictor of an interest in continuing with education. Hossler (2/14/95) 14; 95 UASX 243, pp. 10-12.

9. With some exceptions, most students begin the primary part of the college choice process in the junior year of high school. By this point, students understand from parents the economic parameters of the choices available. Hossler (2/14/95) 18-19.

10. When students are defining a college “choice set,” parents establish an explicit cost range they will consider, and indicate the distance from home they think the student should travel for school. Hossler (2/14/95) 19.

11. The two most direct ways, external to the family, to influence the process by which students choose colleges are (1) post-secondary encouragement during the middle school years and (2) efforts to lower the price and other costs of a college education. 95 UASX 243, p. 15.

12. After developing an aspiration to higher education, students establish a set of institutions in which they may possibly enroll. A student establishes the “choice set” based upon a range of factors important to the individual student. Eesearch literature on student choice, however, demonstrates that the following factors exert the greatest influence on students’ choice: tuition, costs, financial aid, academic reputation, location, size, social atmosphere, and, occasionally, special academic programs. 95 UASX 243, p. 36.

13. Particular academic programs are relatively

un

important in the early stages, because students are not far enough along in their decision making to rule institutions in or out based on programs. Hossler (2/Í4/95) 19. One important exception to this general rule, however, is engineering. Hossler (2/14/95) 19.

14. After establishing a “choice set,” the next stage involves selecting from among the institutions in the set. The students narrow their choices to a group of schools they are considering seriously enough to submit an application. Hossler (2/14/95) 20-21.

15. The schools in a student’s final choice set are normally quite similar. More subtle factors, such as the quality of campus social life, become more important to the choice. 95 UASX 243, p. 38.

16. At this point in the choice process, the

net

cost of attending college (after considering financial aid) becomes a crucial factor in the selection of a college. 95 UASX 243, p. 38.

17. By this stage in the choice process^ students have decided whether they are only considering attending local institutions; whether they are considering living away from home and if so how far; and whether they are considering elite private high-cost institutions. At this stage, students begin to relate career aspirations to the availability of academic majors. Hossler (2/14/95) 22.

18. Also at this stage, the efforts by the institutions to entice prospective students become particularly important, because a decision among the final group of institutions is heavily influenced by factors such as how an institution treats a prospective student on campus visits, the personal nature of correspondence to the student and other similar, personal, factors. Hossler (2/14/95) 23.

19. Analyses of student choice must account for institutional access because institutional decisions affect student choice. Policies and practices in admissions criteria, recruitment activities, where recruitment activities occur, financial incentives and post-enrollment academic support will make that

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institution more or less accessible to particular students. Allen (3/9/95) 19-21; 95 UASX 243, p. 11.

20. Other factors that affect student choice and, especially, the decision of white students to attend HBIs, include safety (an important factor) and physical attractiveness (a less important factor, an “ ‘add-on’ incentive”). 95 USX 8, pp. 43-44; Conrad (2/28/95) 16.

21. Institutional communication to a student considering only local institutions is somewhat different. It is more important that the local institution demonstrate that it is “user friendly,” offers programs for part-time students, offers weekend and evening courses, offers programs with immediate employment potential, and possibly provides financial aid for students not eligible under traditional aid programs. Hossler (2/14/95) 23-24.

22. Little research has been done on the choice process for nontraditional and commuting students. For these students the principal determinates of where they will enroll seem to be cost, distance and convenience. Hossler (2/14/95) 25-26;

see infra

¶¶ 191-205 (discussing adult and non-traditional students).

23. Locally situated, part time, traditional age students have the similar course patterns as adults; that is, they require at least some evening and weekend' courses. Hossler (2/15/95) 74-75.

24. Student choice is a complex process, but the Court has considered the issues in this case in light of the process explained above.

25. Student choice, in this case, is not just about making AAMU and ASU more desirable places to go, but also about expanding student choice in the system as a whole.

1

Becton (2/23/95) 68. Any remedial action should increase educational opportunity for all Alabamians. 95 CTX 4, p. 7 (Joint Prefatory Statement of Court’s experts).

Segregative Effects

26. A “segregative effect” occurs when a policy or practice continues to foster segregation, or influences student enrollment decisions by substantially restricting, in a discriminatory manner, a person’s choice of which institution to enter.

United States v. Fordice,

505 U.S. 717, 730 , 112 S.Ct. 2727, 2737 , 120 L.Ed.2d 575 (1992).

Educational Soundness

27. An educationally sound remedy furthers typical state higher education goals regarding college participation rates and access to opportunity. 95 AUX 790, p. 4.

28. An educationally sound remedy furthers typical state higher education goals regarding the development and maintenance of quality academic programs. 95 AUX 790, p. 4.

29. An educationally sound remedy must aid in the creation of stronger institutions and a stronger state system of higher education. 95 AUX 790, p. 4.

30. An educationally sound remedy must provide incentives to “do right” with minimal intrusive Court oversight. Trendler (2/9/95) 25; Gross (2/9/95) 28-29.

31. An educationally sound remedy should,

as far as possible,

take into account, and work within the normal political, educational, and administrative processes. Trendler (2/9/95) 25-27; Wharton (3/14/95) 10; Caruthers (3/15/95) 25; Nance (2/26/95) 27.

32. An educationally sound remedy must minimize, as far as possible, the collateral and unintended effects on the state’s system of higher education. Fincher (2/9/95) 9-13; Caruthers (3/15/95) 14-15; Ellis (2/14/95) 46.

33. An educationally sound remedy must acknowledge that achieving and maintaining accreditation is crucial to institutions of higher education. Jordan (3/8/95) 53-54.

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34. An educationally sound remedy must maintain the levels of integration achieved by the PWIs. Caruthers (03/15/95) 31; 95 AUX 790, pp. 17, 19; 95 CTX 1, p. 19; Conrad (02/28/95) 56, 89, 110.

2

35. The remedy must bring the state and the system of higher education into compliance with the Constitution, Title VI and the

Fordice

decision.

Practicability

36. Webster defines “practicable” as capable of being effected, done or executed; feasible; or capable of being used for a specific purpose. “Capable” is defined as “having capacity or ability; competent; efficient;

3

able.”

37. In grasping the meaning of “practicable” it is useful to look at the meanings of related words:

(a) “possible” is something realizable as an end, capable of existing or happening without contradicting proven facts, laws or circumstances.

(b) “practical” emphasizes the prudence, efficiency, or economy of an act, solution or agent.

(c) “workable” is used of proposed ideas or plans, the success of which is likely if properly managed.

(d) “practicable” means fitted for actual use or application, and often is used to describe projects where an initial forecast is important.

(e) “feasible” means clearly possible and applicable, and connotes closer scrutiny and more guarded approval than workable or practicable.

(f) “viable” refers to likelihood of continued success.

38. Practicability requires the Court to look not only at costs and benefits, but risks and returns as well. Hossler (2/15/95) 102; see also Missouri v. Jenkins, - U.S. -, -, 115 S.Ct. 2038, 2071-72 , 132 L.Ed.2d 63 (1995) (Thomas, J., concurring). Justice Thomas noted that local authorities are entitled to rather specific direction regarding their obligations, disapproved of a district court using a hit or miss, constant-deeree-reshaping method, and encouraged district courts to attempt to implement a unified remedy in a single decree. Based upon this advice and the meanings of words, a practicable remedy is one that would appear, at the current time, to be most likely to achieve the remedial purpose into the future.

39. The Court wishes to avoid enormous expenditures of money which have no practical effect on institutions or students. See, Wharton (3/14/95) 16-17, whereat he discusses Louisiana’s dismal experience with large scale enhancement of HBIs.

The Court-appointed Neutral Experts

40. Several months prior to the start of the remand proceedings the Court took the extraordinary step of appointing five neutral expert witnesses. These appointments were made in an effort to assist the Court and the parties in analyzing the issues remanded from the Circuit. The Court felt it important to secure the assistance of educational experts not associated with any of the parties to this case.

41. After an extensive search, the Court selected five individuals with national reputations as educators and university administrators to serve as appointed experts. The Court-appointed experts were:

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42. Dr. Robert M. Anderson, Jr., who at the time of his appointment was Vice Provost for Extension and Director of Cooperative Extension at Iowa State University. Prior to his appointment as Vice Provost, Dr. Anderson was employed by the General Electric Company where he served as a manager. Dr. Anderson has also been a full professor of electrical engineering at Purdue University.

43. Lt. Gen. Julius W. Becton, Jr., is the former President of Prairie View A & M University. General Becton has served on a number of national committees involved in university and college accreditation. He has also served as a board member for various organizations committed to equal access to higher education. General Becton has served in various presidential administrations including the Director of FEMA under President Bush.

44. Dr. Harold L. Enarson is President Emeritus of The Ohio State University. Dr. Enarson also served as the first president of Cleveland State University, and was the Executive Director of the Western Interstate Commission for Higher Education, an interstate compact of 13 western states. Dr. Enarson has held several administrative position at the University of New Mexico, and served in the President Truman’s White House in a variety of positions.

45. Dr. Robben Fleming is the President Emeritus of the University of Michigan at Ann Arbor, past Chancellor of the University of Wisconsin, and the former President of the Corporation of Public Broadcasting. Dr. Fleming has served as Chairman of the Carnegie Fund for the Advancement of Teaching, Chairman of the American Association of Universities, Chairman of the American Counsel on Education, and is a Fellow of the American Academy of Arts and Sciences.

46. Dr. Bryce Jordan is President Emeritus of the Pennsylvania State University and former Executive Vice Chancellor of the Administrative Office of the University of Texas System. Dr. Jordan also served as the founding president of the University of Texas at Dallas. Dr. Jordan, as with all of the Court-appointed neutral experts continues to serve on a variety of committees and organizations concerned with higher education across the country.

47. The Court charged the neutral experts to conduct a detailed review of the issues presented on remand and to separately recommend to the Court, what in their individual judgments, were the most educationally sound remedies to address the issues remanded by the Circuit.

48. In discharging their responsibilities, the Court-appointed experts met with the parties to this case, toured a number of institutions and spoke to plaintiff class members and officials of several of the schools. Separate reports were prepared by the Court-appointed experts, and they each gave a deposition and testified at trial. Copies of the reports were entered into evidence at the trial.

49. Without exception, these men provided valuable assistance in reviewing the matters submitted to them. Their reports were thoughtful, complete and of great assistance to the Court and the parties.

Liability and the Court-wppointed Neutral Experts

50. At the outset, it is important to note that while some of the court-appointed experts commented on issues that are relevant to mission area liability, all of them indicated to the Court that they were uncomfortable with developing evidence on the issue of liability, so they assumed liability.

See

Enar-son (2/21/95) 97-98. Drs. Anderson, Jordan, Enarson and Fleming and General Becton all admitted that they “assumed” liability on the part of the defendants in the mission area. Jordan (3/8/95) 7; Becton (2/22/94) 54; Enar-son (2/21/95) 90-91, 96-97; Fleming (2/22/95) 71-72. It was evident from their testimony that they viewed the Eleventh Circuit’s remand to require a finding of liability on the mission area and that the one option not open to the judge was to do nothing. Enar-son (2/21/95) 96. Dr. Fleming explained that he did not attempt to answer questions related to liability; but assumed liability, believing that it was the court-appointed experts’ jobs to improve the status of the HBIs. Fleming (2/22/95) 72.

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51. During a hearing held on August 12, 1994 the Court told the parties

The [Court-appointed] experts have indicated to [the Court’s Monitor] that they’re not — they do not feel comfortable with doing a lot of work on issues of liability. And I’m telling that to all of you so that you will understand when these experts testify that while they may know facts and be able to testify as to facts that go to liability issues, that most of what they’re going to be doing is looking at [the] present situation, whether or not the remedy is appropriate, and if so, what it might be.

Transcript of Hearing held August 12, 1994, p. 34.

52. On November 1, 1994 the Court received a memorandum from these experts which stated in part

We interpret our charge to require of us first and foremost our individual opinions on the range of practicable and educationally sound remedies to the issues remanded by the Eleventh Circuit. As the Court said in the August hearing, none of us are particularly comfortable in doing comprehensive work on issues of liability. For example, on the mission and land grant issues, we have not extensively focused on whether a current practice or policy has continuing segregative effects on student choice. We understand that such issues will be decided by the Court based on the evidence presented at trial. While we may on occasion express opinions regarding liability issues, we have in all instances proposed a range of remedies regardless of our individual views on the liability questions. In short,

we have assumed liability

and offered our opinions on remedial issues.

Memorandum from the court-appointed Neutral Experts to Judge Harold L. Murphy (Nov. 1, 1994) (emphasis supplied).

53. During the cross-examination of Dr. Enarson, the Court reminded the parties “I ought to point out. Let me interrupt a minute. I should point out that the [court-appointed] experts in this case indicated they were quite uncomfortable with developing evidence on the issue of liability, so they have assumed liability.” Enarson (2/21/95) 97-98 (Court’s comments).

54. Consistent with the Court obviating any duty on their part to study and make recommendations regarding liability, these experts’ reports contained no in-depth discussion on liability, but only passing references consistent with their admitted assumptions on the issue. 95 CTX 1, p. 5-7; 95 CTX 2, p. 29; 95 CTX 3, p. 1-2; 95 CTX 4, p. 9; 95 CTX 5, p. 10-13.

55. Dr. Enarson stated his belief that “student choice is influenced by race and institutional reputation.” He then speaks in broadly^ historical terms of the image of the HBIs and the fact of proximate institutions. 95 CTX 1, p. 5-7. While Dr. Enarson’s beliefs regarding history may be accurate, it was a matter he neither chose, nor the Court ultimately charged him, to investigate under the particular facts of this case.

56. Dr. Fleming, too expressed his belief that the limited missions have current segre-gative effects, but reserved the determination of that question for the Court. 95 CTX 3, p. 1-2.

57. General Becton expressly stated “I am, therefore, assuming that this limitation continues its segregative effects on student choice.” 95 CTX 4, p. 9.

58. Dr. Jordan, before making his various recommendations, spoke of the duplication in Huntsville and Montgomery, and the attendant inefficiencies. 95 CTX 5, p. 10-13. Dr. Jordan simply states, “there seems little doubt that this situation has come about through a continuation of segregative effect originating in the

de jure

segregation of ASU, and is still effecting the choices that students have as to the institution they wish to attend.” 95 CTX 5, p. 11. Again, while Dr. Jordan’s beliefs regarding history may be accurate, it was a matter he neither chose, nor the Court ultimately charged him, to investigate under the particular facts of this case.

Mission

— What

the Court must evaluate

59. The phrases “current mission assignment” and “limited mission” of AAMU and ASU, as used in this litigation are imprecise terms. Neither the Eleventh Circuit nor this Court’s 1991 Opinion eliminated the imprecision. The Court concludes, however, that

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the meaning pláced on those terms is evident from the Court of Appeals’ holding and its citation of this Court’s previous Order.

60. The Eleventh Circuit quoted a portion of a statement in the Court’s introductory remarks in

Knight.

The portion quoted by the Eleventh Circuit is in italics.

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 the limitation affect students who choose to attend the state’s predominantly black institutions.

Knight,

787 F.Supp. at 1046 (emphasized portion quoted at

Knight,

14 F.3d at 1544 as this Court’s finding).

The Eleventh Circuit then went on to discuss AAMU’s and ASU’s classification in Planning Document Number One and the Instructional Role Matrices.

Knight v. Alabama,

14 F.3d 1534, 1544-45 (11th Cir.1994). The Court of Appeals then holds that this Court “did not address the entirely separate question of whether the limited mission assignments of ASU and A & M, which were preserved under both Planning Document Number One and the current Instructional Role Matrices” have current segregative effects.

Id.

at 1545 . The Eleventh Circuit instructs this Court, on remand, to examine ASU’s and AAMU’s “current mission assignment.”

Id.

at 1546 . The Eleventh Circuit’s holding and mandate are consistent with the actual findings underlying the Court’s statement in the introductory remarks.

Cf.

9 Chaeles A. Wright

&

Arthur R. Miller, Federal Practice & Prooedure § 2580, p. 719 (1971) (“When a district court issues an order and specific findings, the specific findings control over any statement in the order”).

61. This Court’s statement in the introductory remarks was motivated by the numerous factual findings on the history of higher education in Alabama.

See Knight,

787 F.Supp. at 1065-1147 . Very briefly:

62. ASU and AAMU were founded as normal schools or teacher colleges to serve for black citizens the identical purpose served for white citizens by institutions such as the UNA, LU,

4

JSU, and TSU.

See Knight,

787 F.Supp. at 1074-75, ¶¶97, 98 (ASU founded as normal school for blacks);

id.

at 1084, ¶ 154 (AAMU founded as teacher training school, under name Huntsville Normal School, for blacks),

id.

at 1062, ¶ 5 (UNA founded as normal school for whites);

id.

¶ 6 (LU founded as normal school for white females);

id.

¶7 (JSU founded as normal school for white males and females);

id.

at ¶ 8 (TSU founded as teachers’ college for white males and females).

63. In the 1960’s, the state played virtually no role in higher education growth and expansion, which took place without coordination or planning. Prior to 1969, if an institution wanted to move, expand, or create new programs, they could do so

if they could get the funds.

Porter (2/1/95) 7, 9.

64. The Alabama legislature created the Alabama Commission on Higher Education (ACHE) in 1969, and in 1974 ACHE released Planning Document Number One which recommended certain institutional classifications.

Id.

at 1136, ¶ 516, 1139, ¶526, 1309, ¶ 1592.

65. The Court previously found

Planning Document Number One recommended that institutions of higher education be classified according to the following system:

I.Doctoral Universities (Public)

A. Comprehensive Universities

B. Urban Universities with a Comprehensive Role in Selected Graduate and Professional Fields.

C. Urban Universities with Specialized Graduate and Professional Roles

II.Master’s-Level State Universities (Public)

III. Two-Year Institutions (Public)

IV. Private Institutions

V. Propriety Institutions

USX 2, p. 39.

The public four-year institutions in Alabama were classified by ACHE as follows:

Category I-A: UA, AU

Category I-B: UAB

Category I-C: UAH, USoALA

Category II: ASU, JSU, LU, TSU, UNA, AAMU, AUM, UM

USX 2, pp. 42-51.

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Knight,

787 F.Supp. at 1309-10, ¶¶1592, 1593 .

66. An institution’s placement within a category in Planning Document Number One depended on the institution’s characteristics as they existed in 1975, when Planning Document Number One was published. 95 STX 1028, pp. 41-58; Blow (5/6/91) at 70-71. As testified to by the then Executive Director of ACHE, the categories “simply described what the institutions were doing at that time.” Porter (2/1/95) at 16.

67. The classification system used in Planning Document Number One prevented institutions from having programs approved by ACHE at a level higher than their classification would allow.

Knight,

787 F.Supp. at 1310, ¶ 1597 . However, until 1979 an institution could use state funds to implement a new program even if ACHE withheld approval. Porter (2/1/95) 21-22;

Knight,

787 F.Supp. at 1312, ¶ 1607 .

68. In addition, Planning Document Number One demonstrates a sensitivity to the issues present in this litigation. The document states, in language quite prescient of some opinions in

United States v. Fordice

The role and scope of historically black institutions is of crucial importance in this State. The duty to create a truly nondiscriminatory system of higher education clearly rests upon the State. Institutional efforts to create not “white colleges” and not “black colleges” but just “colleges” should continue.

By the same token, the unique contribution and perspective of the historically black institutions should not be lost in an effort to achieve numerical quotas for majority and minority students. The burden of further desegregation should not fall unduly upon the historically black institutions. Since enrollment in higher education, unlike that in elementary and secondary schools, remains a voluntary action, the right of students to choose the institution which they believe best meets their needs and desires should be respected. The State has an affirmative duty to insure that its policies and practices and those of its institutions do not in and of themselves create or perpetuate institutions which, by their faculty or administration or admissions policies, are clearly “white” or “black.” But we do not believe that the historie principle of free choice in higher education should be abridged and lost.

95 STX 1028, pp. 69-70.

69. In 1985 ACHE ceased operating under Planning Document Number One and began using the Instructional Role Matrices.

Knight,

787 F.Supp. at 1310, ¶ 1594 . The Instructional Role Matrices, when adopted, described the respective role of the particular institutions as such role stood. The Court previously described the Instructional Role Matrix thusly:

The Instructional Role Matrix document contains grids, with rows showing academic subdivision groupings and columns showing degree levels. A separate grid applies to each public four-year institution. If an institution has an existing degree program in a particular academic field at a particular degree level, an “X” appears in the appropriate spot. If an institution has no existing program in a particular field and at a particular degree level, but both the institution and ACHE agree it should be able to expand in that area, an “0” appears in the appropriate spot. [91] STX 144.

Knight,

787 F.Supp. at 1311, ¶ 1602 .

70. The original Instructional Role Matrix for each institution was agreed to by that institution, and the system allows for changes in role. Blow (2/8/95) at 5-6. The Instructional Role Matrix is overwhelmingly descriptive rather than prescriptive, and the document,

itself,

does not represent state-imposed mission assignments.

See

95 STX 1009.

71. Importantly, however, whatever role an institution had when Planning Document Number One was in force, was described in, and carried through to, its respective grid in the Instructional Role Matrices. Capíes (3/1/95) 82-83.

72. The Court concludes, therefore, that the “limited missions because of prior state-sponsored discrimination” discussed in the

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Eleventh Circuit’s opinion must refer to the mission, or more precisely, the

role

ASU and AAMU occupy in the Instructional Role Matrices.

Mission, Role and Scope in Higher Education

73. Mission, role and scope are terms of art in Alabama higher education. To more narrowly focus this litigation, the Court provides the following explanations.

74. “A mission is what an institution sees itself to be in a broad philosophical sense, including its major goals, the way it sees its major responsibilities. It has certain aspirational and futuristic aspects to it.” Blow (2/8/95) 4; Enarson (2/21/95) 12. Under this technical definition, the State of Alabama has

nothing

to do with institutional mission. Blow (2/8/95) 4.

75. “Role essentially is what an institution does, and generally, with respect to three major functions, instruction, research and public service. Also involved with role would be the clientele that an institution serves.” Blow (2/8/95) 4.

76. “Scope [is] the extent to which the institution carries out its role or does what it does. In a practical sense, ACHE uses this word referring to the academic program inventory for the instructional scope of an institution.” Blow (2/8/95) 4-5;- 95 STX 1007; 95 STX 1008.

77. Instructional role is expressed, in part, in degree programs

5

offered by an institution. Because of the high degree of institutional autonomy in Alabama higher education, program proposals usually originate with the institutions,

see generally

95 STX 1010, and the existence

vel non

of a particular program at a particular institution cannot be attributed solely to a centralized state policy or practice.

78. The current limited mission assignments of AAMU and ASU that are the present focus of this litigation are the role and scope of the institutions.

Programs

ACHE and the HBIs in the Past

79. During the approximately 20-year period from 1971 through the time of the last trial, the ACHE considered only two program proposals from ASU and approved both of them.

Knight,

787 F.Supp. at 1313, ¶ 1617 . AAMU, in contrast, submitted many program proposals during that period, and only four of those programs were ultimately disapproved by thé Commission.

Id.

at ¶ 1619.

80. In 1994 ACHE recommended that ASU (and AAMU) receive additional onetime funding for development of program proposals, and such funds were appropriated. Blow (2/8/95) 20; 95 STX 1067, pp. B-l, B-2.

81. Since the last trial, ACHE staff and ASU have been working together on several degree program proposals: doctoral programs in three education fields; baccalaureate programs in allied health fields, including respiratory therapy, occupational therapy, health information management, and athletic training; a baccalaureate program in environmental science; and a masters’ program in accountancy. Blow (2/8/95) 13-19; 95 STXs 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022. The doctoral programs have been withdrawn from ACHE consideration, by agreement of ACHE and ASU, pending further development of the proposals. Blow (2/8/95) 13-15.

82. The allied health programs are being considered “off the calendar;” that is, instead of ACHE being required to act on the program proposals within ten months, ACHE and ASU have agreed that the ACHE staff and ASU will continue negotiations concerning the proposals until the ACHE staff is ready to recommend them for approval. Blow (2/8/95) 17-18. The State appears poised to place these programs at ASU. Although the environmental science and masters of accountancy proposals are in more advanced stages, ACHE action was post

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poned,

at the Court’s request,

pending the Court’s remand order. Blow (2/8/95) 16, 18.

83. In fact, ACHE imposed a moratorium on all new programs pending the outcome of this action. Blow (2/8/95) 18.

84. Since the last trial AAMU has submitted five program proposals. Blow (2/8/95) 10-11. A bachelor of science program in technical studies has been approved, as has a masters’ program in social work. Blow (2/8/95) 11. Proposals for baccalaureate degrees in logistics, mechanical engineering, and electrical engineering are pending.

Id.

The logistics proposal had to be revised in response to questions ACHE raised.

Id.

As to the engineering proposals, the ACHE staff and AAMU disagreed about whether additional engineering programs should be approved for Huntsville. ACHE suggested exploring ways in which UAH and AAMU could share the core curricula for the two programs, and revised proposals were submitted to ACHE shortly before trial began. Blow (2/8/95) 12-13. See,

infra,

¶¶ 318-337 for further discussion of Engineering at AAMU.

Role

85. As noted above, “role” is what an institution does with regard to instruction, research and public service.

86. Alabama designates twenty-eight (28) fields. In Alabama if an institution can offer courses in a certain field, that institution has a “role” in that field.

See

95 STX 1009. Fields are broad areas of knowledge, such as Agriculture and Renewable Resources, Architecture and Environmental Design, Business, Communication and Related Technologies, Education, Engineering, Humanities, Life Science, Physical Scienee/Mathematics, among others.

See

95 STX 1009.

87. If one ranks Alabama’s public senior institutions in terms of most to least overall fields for which a role is recognized, number of fields in which a doctoral role is recognized, and number of fields in which a graduate (including doctoral) or first professional role is recognized, the institutions are ranked as follows:

Number of Roles

All Graduate

&

Overall Doctoral First Prof.

AU-21 AU-15 UAB-20

UAB-20 UA-13 AU-18

UA-19 UAB-13 UA-16

A&M-16 UAH- 3 USA-15

USA-16 USA- 3 A&M-12

ASU-14 A & M- 2 TSU-10

JSU-14 ASU- 1 UAH-10

TSU-14 AUM- 1 UNA-10

LU-13 ASC- 0 JSU- 9

AUM-12 JSU- 0 ASU- 8

UNA-12 LU- 0 UM- 7

UAH-11 TSU- 0 AUM- 5

UM-11 TSUD- 0 TSUM- 6

TSUM-10 TSUM- 0 TSUD- 3

ASC- 9 UM- 0 LU- 1

TSUD- 9 UNA- 0 ASC- 0

95 STX 1009.

Programs

88.Programs are what are normally referred to as majors or concentrations: for example, English, Accounting, and Business Administration, among others. 95 STX 1007; 95 STX 1008; 95 AUX 799, p. 19.

89.If one ranks Alabama’s public senior institutions in terms of most to least overall programs, doctoral programs, and graduate and first professional programs (including doctoral and educational specialist), the institutions are ranked as follows:

Number of Programs

All Graduate & Overall Doctoral First Prof.

AU - 319 UA-65 UA-214

UA-318 AU-51 AU -196

UAB-148 UAB-30 UAB- 80

TSU-124 UAH-10 A & M- 53

A&M-109 USA- 4 USA- 35

TSUM -102 A & M- 3 TSUM- 33

UNA- 99 AUM- 1 JSU- 29

USA- 97 ASC- 0 ASU- 28

UM- 84 ASU- 0 UAH- 26

JSU- 82 JSU- 0 TSU- 25

ASU- 81 LU- 0 UM- 24

UAH- 73 TSU- 0 UNA- 20

LU- 65 TSUD- 0 LU- 19

TSUD- 56 TSUM- 0 AUM- 17

AUM- 44 UM- 0 TSUD- 16

ASC- 33 UNA- 0 ASC- 0

95 STX 1049.

90.If one ranks Alabama’s public senior institutions in terms of most to least overall programs

in active status,

doctoral programs in active status, and graduate and first professional programs (including doctoral and educational specialist) in active status, the institutions are ranked as follows:

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Number of Programs in Active Status M Graduate &

Overall Doctoral First Prof.

AU - 310 UA-58 AU -190

UA - 260 AU-49 UA-164

UAB -148 UAB-30 UAB- 80

A&M-109 UAH-10 A&M- 53

TSU- 97 USA- 4 USA- 35

USA- 95 A&M- 3 JSU- 26

UNA- 86 AUM- 1 UAH- 26

JSU- 79 ASC- 0 ASU- 25

UM- 76 ASU- 0 UM- 21

ASU- 72 JSU- 0 TSU- 20

UAH- 72 LU- 0 AUM- 17

LU- 54 TSU- 0 TSUM- 15

TSUM- 47 TSUD- 0 UNA- 12

AUM- 42 TSUM- 0 LU- 11

TSUD- 41 UM- 0 TSUD- 11

ASC- 33 UNA- 0 ASC- 0

95 STX 1049.

91.Having laid this theoretical, definitional, and limited historical foundation, the Court will discuss the various institutions.

The Predicates

The University of Alabama Huntsville

92. The Court’s previous findings regarding the institutional comparison between UAH and AAMU are found at

Knight v. Alabama,

787 F.Supp. 1030, 1321-22, ¶¶ 1660-74 (N.D.Ala.1991).

93. The Court’s previous findings comparing the education and business programs at the UAH and AAMU are found at

Knight,

787 F.Supp. at 1322-28, ¶¶ 1675-1736 .

94. The Court previously found that UAH and AAMU were substantially different from both an institutional and a programmatic perspective.

Knight,

787 F.Supp. at 1321-1376, ¶¶ 1660-1736 .

95. These findings remain correct in light of the evidence presented during the rehearing. Siskin (2/13/95) 43, 75-78; Billings (2/13/95) 39; Ellis (2/14/95); Henson (3/6/95) 14-15; 95 UASX 237, tbl. ACT 3; 95 UASX 237, tbl. ACT 14-19; 95 UASX 237, tbl. ACT 30; 95 UASX 237, tbl. ACT 31.

Additional Findings

UAH’s Financial Situation

96. UAH, because of its science and engineering focus, has a high cost educational mission. Wharton (4/2/91) 30.

97. The state appropriations are significantly less than what UAH requires to carry out its mission; UAH, therefore, must depend on tuition and fees. Franz (3/13/95) 21-23; 95 UASX 1164. UAH’s tuition and fees are currently the highest of any Alabama public institution. 95 STX 1006, p. 84.

98. UAH attracts substantial sponsored research money; however, such funds are restricted by the sponsoring agency. Wharton (4/2/91) pp. 91-92.

99. UAH, itself, has supplied over half its capital funds, through institutional funds and institutional borrowing; the state and the federal government each provided roughly a quarter. Quick (3/20/91) 31; 90 UASX 1511; Franz (3/13/95) 27.

100. UAH’s debt service requirements went from $848,108 prior to 1990, to $2,400,-000 in 1991, to $5,707,451 in 1994. 95 UASX 1155; Quick (3/20/91) 21; 90 UASX 947, pp. 16-17. By many measures UAH is a very highly leveraged institution. Franz (3/13/95) 28-31; 95 UASX 1119; 95 UASX 1164, pp. 2-3; Quick (3/20/91) 21.

101. UAH services its debt through tuition and fees, and contract payments by facility users. State appropriations, by law, may neither be pledged nor expended for bond debt service. Franz (3/13/95) 31-32, 34-35; 95 UASX 1155.

102. UAH’s ability to meet its heavy debt service requirements is significantly tied to enrollment. The institution is therefore financially vulnerable to instability or shifts in enrollment. UAH made long-term financial commitments for the purpose of developing facilities needed for its instructional and research programs, premised upon maintaining reasonable stability in student enrollment over time. Franz (3/13/95) 36-37; Quick (3/20/91) 22.

Business Program Accreditation Generally

103. The American Association of Collegiate Schools of Business (AACSB) is a not-for-profit organization devoted to the promotion and improvement of higher education programs in business administration. AACSB is the premier accreditation agency for business programs, at all levels, in American higher education. Begun in 1916, AACSB has historically been associated with

*293

institutions having business programs with a strong research orientation, often at doctoral institutions. AACSB accreditation is very prescriptive, and both difficult and time consuming to achieve. Less than 25% of institutions offering such programs in the United States have qualified for accreditation. Nance (2/6/95) 38-39; 95 AUX 713; Billings (2/13/95) 5-6.

104. There are only seven AACSB accredited business programs in Alabama. Only about 300 of some 1,400 business programs nationally are AACSB accredited. Nance (2/6/95) 37-38; 95 AUX 713.

105. AACSB accreditation pays important dividends to the institution and its students. Accreditation helps assure students and their parents of the program’s high quality; gives the graduate an edge in the job market; helps the institution attract and retain high quality faculty; helps the faculty achieve more recognition nationally; gives the faculty greater credibility in seeking private support and federal contracts and grants; and generally brings more prestige and respect to the institution. Billings (2/13/95) 80-81, 84.

106. Once a faculty with the appropriate credentials for national accreditation has been achieved, it must be maintained, because the program must be periodically re-accredited by AACSB. Billings (2/13/95) 9-10.

107. The other accrediting agency for business programs is the Association of Collegiate Business Schools and Programs (ACBSP). ACBSP, which was founded about 1988, primarily emphasizes excellence in teaching, and focuses less on research than AACSB. ACBSP is normally found in baccalaureate and associate degree programs. Nance (2/6/95) 38-39.

108. The two business program accrediting agencies are complementary. The ACBSP accreditation emphasizes teaching, while AACSB orients toward larger programs or those that emphasize research and publications as well as teaching. Steptoe (3/7/95) 107.

UAH’s Business Program

109. UAH’s baccalaureate and masters programs in the College of Administrative Science were accredited by the AACSB in 1994. Billings (2/13/95) 5; 95 UASX 1108, p. 1.

110. UAH achieved AACSB accreditation after at least thirteen years of concerted effort. Programs in business had been offered at UAH for over thirty years prior to UAH officials deciding that the University was in a position to seek such accreditation. Billings (2/13/95) 4-5, 57, 82; 95 UASX 1108 pp. 1-3.

111. UAH faced significant challenges in qualifying its business and management programs for AACSB accreditation, such as reshaping its faculty and academic culture, primarily by developing a stronger research orientation and moving from a “time in grade” system of evaluation to a meritocracy. Billings (2/13/95) 6-10,11. Meeting the challenge required painful personnel decisions regarding reappointment, promotion, and tenure, and required political support from the administration. Billings (2/13/95) 6-10, 11;

see also

Nance (2/6/95) 39-40.

112. UAH’s College of Administrative Science received

no

special funding from the University for the purpose of enhancing its programs to meet AACSB accreditation standards. A building to house Administrative Science programs, completed in 1990, was financed by means of a bond issue; the debt is serviced from student tuition revenues. Billings (2/13/95) 11; Quick (3/20/91) 8-9; 90 UASX 950.

UAH’s Education Program

113. The Court’s previous findings regarding UAH’s teacher education program are found at

Knight,

787 F.Supp. at 1322-24, ¶¶ 1675-93 .

114. The teacher education and certification program at UAH remains a strong, but narrowly focused and very small, one. Ellis (2/14/95),

in passim.

115. The UAH education program participates in various institutes, consortiums and other programs, combining teacher education with UAH’s strength in science, and make an

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important contribution to teacher training in Alabama. Ellis (2/14/95) 16-24.

Findings Regarding Nursing at UAH

116. UAH offers nursing programs at the baccalaureate and masters levels. The undergraduate program is approved by the Alabama Board of Nursing, a state regulatory body which must approve programs leading to initial licensure. Both the baccalaureate and the master’s programs are accredited by the National League for Nursing. Raines (2/13/95) 3, 6; 95 UASX 742, p. 224; 95 UASX 1135; 95 UASX 1137; 95 UASX 1136.

117. The curriculum at the master’s degree level specializes in the role of the family nurse practitioner in primary health care settings. The family nurse practitioner option has been expanded to include adult acute care. Raines, (2/13/95) 4-5; 95 UASX 1133, pp. 150-152.

118. UAH has been training students in nursing for over 20 years. 95 UASX 1113, p. 3. When the UAH Nursing program began, AAMU’s then President wrote a letter expressing the support of his institution for such a program at UAH. 95 UASX 1116.

Impracticability and Educational Unsoundness of Diminishing UAH’s Programs

119. As the Court noted above, UAH is in a tight financial situation.

Business

120. Business/management disciplines account for nearly one out of every four undergraduate and graduate degrees awarded by institutions of higher education in the country. Billings (2/13/95) 31-32; Owens (7/30/85) pp. 6656-57; Owens (3/26/91) p. 48.

121. At UAH, business and management degrees on the undergraduate level have constituted 23-29% of all undergraduate degrees awarded since 1990. On the graduate level, the masters of science in management (MSM) has contributed about 14% of all masters degrees awarded since 1990. On both levels, these percentages have declined a bit in recent years. Billings (2/13/95) 32.

122. Students in the undergraduate business programs at UAH provide enrollment for, and generate credit hours in, courses outside the College of Administrative Science. Students take forty-one percent of required courses outside the College; almost all of such courses are prescribed and are in the Colleges of Liberal Arts and Science. An additional 5% of course work may be taken in the latter colleges as free electives. Bhlings (2/13/95) 33; 95 UASX 742, pp. 83-86.

123. Enrollments in the College of Administrative Science provide UAH with over $1.53 million in tuition and fees each year, about 11% of all tuition and fee revenue. 95 UASX 1158.

124. Approximately 13% of the enrollment in the College of Administrative Science are black students. At the undergraduate level, black students make up 14% of the enrollment. This compares with an black enrollment of about 8% overaU for UAH. Nineteen percent of all black students at UAH. are in the Cohege of Administrative Science. The College is a major contributor to the presence of black students at UAH. Billings (2/13/95) 35.

125. The largest undergraduate major in the College of Administrative Science is accounting, which has more than twice as many students as the next largest major, management information systems. On the undergraduate level, over one out of every three students enrolled in the College and over one out of every three degrees awarded is in accounting. Billings (2/13/95) 27-28; 95 UASX 1131, pp. 1-2.

126. The Court finds that it is not educationally sound or practicable to transfer business programs from UAH to AAMU.

See, infra,

¶¶ 311-316.

127. The Court finds that it is not educationally sound to prevent UAH, which currently offers undergraduate accounting programs, from offering a master’s, because such a preclusion would decimate the undergraduate program. Blow (2/8/95) 39; Billings (2/13/95) 47.

6

*295

128. The Court finds, in light of the investment made by UAH for accreditation, and the importance of UAH’s business and accounting programs, it is neither educationally sound nor practicable to prevent UAH from offering a Master’s in Accountancy.

7

The Court also finds that decimation of UAH’s business programs would significantly diminish UAH’s black enrollment.

129. UAH and AAMU are currently working toward a cooperative master’s in business wherein students are required to take a quarter of the required courses at the other institution. Billings (2/13/95) 45-49.

130. As noted below, AAMU intends to seek AACSB accreditation. UAH and AAMU should implement the cooperative program, and, in order to minimize the financial burden, seek approval from AACSB for such cooperative programs.

Education

131. UAH’s teacher education program is important to the school’s mission as a university. Ellis (2/14/95). Moveover, given the small extent and specialized nature of the program, the Court finds that it would have no desegregative effect if closed or transferred. Ellis (2/14/95) 14-15, 35-36. The Court also finds that transferring or closing UAH’s program is not educationally sound in light of its contribution to the university.

132. The Court’s 1991 remedial decree granting all new teacher education programs in Huntsville to AAMU over the term of the decree will further desegregate AAMU without requiring the impairment of the UAH teacher education program. Ellis (2/14/95) 38.

Nursing

133. Nursing is one of the most important undergraduate programs at UAH in terms of enrollment and degrees awarded. For 1993-94, nursing ranked first among all undergraduate majors in degrees awarded, comprising nearly 20% of the total. In the Fall of 1994, it had the second largest enrollment of all undergraduate programs. Raines (2/13/95) 6-7.

134. The master’s program currently enrolls 101 students, making it, from year to year, the third or fourth largest graduate program at the University. Nursing represents approximately 10.5% of all master’s degrees awarded at UAH. Raines (2/13/95) 6-7.

135. The nursing program has been successful in attracting black students both into nursing and to UAH. Black students make up about 15% of enrollment in the UAH undergraduate program in nursing, as compared to a percentage nationwide of 8-9%. Over the past five years, 20% of all degrees, undergraduate and graduate, awarded to black students at UAH have been in nursing. Raines (2/13/95) 7-9.

136. The College of Nursing has been a major contributor to diversity in UAH’s faculty. The College currently has two black faculty members and over 28% of all female faculty at UAH. Female faculty from the College have played significant roles in campus leadership and service (for example, serving as Faculty Senate president and vice-president). Raines (2/13/95) 9-12; 95 UASX 1140.

137. The College of Nursing requires" sites (hospitals, nursing homes, long term care facilities, etc.) for students to obtain clinical training. Because the University has no comprehensive health care facility, it must arrange for the use of clinical facilities and sites in the community, the surrounding area, and even outside the area as far as Tennessee. UAH currently has contractual relationships with about 170 health care providers for clinical sites. These contracts are institutionally based and are in the name of the University. The relationships are important and delicate, and a great deal of time has been invested in establishing and maintaining them. Raines (2/13/95) 31-33; 95 UASX 1139.

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138. Students in the College of Nursing pay over $1 million in tuition and fees to UAH each year, representing approximately 8% of all tuition received. Raines (2/13/95) 30, 46, 64; 95 UASX 1158.

139. Students in the nursing undergraduate program take about 46% of their course work (a minimum of 59 hours) in the Colleges of Liberal Arts and Science (and may take an additional 6 hours of electives in those Colleges). Loss of nursing students at UAH would result in the loss of 3,000 to 4,000 credit hours generated in the latter programs outside the College of Nursing and the loss of a corresponding amount of tuition and fees which supports these programs. Raines (2/13/95) 30; Franz (3/13/95) 37-38; 95 UASX 742, p. 227.

140. The Court concludes that, because of the institutional investment of UAH in nursing, and the importance of nursing to that institution, it is neither educationally sound, nor practicable to close or attempt transfer of UAH’s nursing programs.

Alabama A & M University

Enrollment Generally

141. The latest complete data available to the Court (from Spring 1994) shows that AAMU has 4,108 undergraduate students broken down by race and alienage as follows: 3,699 black students from the United States, 160 foreign black students, 118 white students from the United States, 1 foreign white student; 29 other

8

students from the United States, and 110 foreign other students. By percentage, AAMU’s undergraduate population is 2.89% white, 93.93% black, and 3.16% other. 95 STX 1093.

142. The latest complete data available to the Court (from Spring 1994) shows that AAMU has 1,371 graduate students broken down by race and alienage as follows: 460 black students from the United States, 82 foreign black students, 640 white students from the United States, 5 foreign white students, 14 other students from the United States, and 170 foreign other students. By percentage, AAMU’s graduate population is 47.0% white, 39.5% black, and 13.4% other. 95 STX 1093.

Teacher Education

143. AAMU has a strong and growing teacher education program, enrolling 1382 students in fall 1994. 95 UASX 339, p. 52; 95 UASX 344KK.

144. Since the late 1970’s, white students received more than half of the graduate degrees awarded in teacher education at A & M: in 1975-76, 55%; in 1976-77, 67.5%; in 1978-79, 53%; in 1980-81, 53%; in 1982-83, 54%; in 1984-85, 46%; in 1986-97, 69.5%; in 1988-89, 56.6%; and in 1992-93, 69.9%. In terms of enrollment, the percentage of white graduate students enrolled in teacher education programs at A

&

M in the Fall of 1994 was just over 61%. 95 UASX 344KK; 85 UASX 682; 90 UASX 634, p. 30; 90 UASX 636, p. 14; 90 UASX 638, p. 14; 95 AAMUX 186.

Instability in Leadership at AAMU

145. During the last eleven years, approximately the amount of time this case has been in active litigation, AAMU has had

six

Presidents. The Court’s Monitor has recently informed the Court that the current president, Dr. David Henson, has resigned effective August 1995.

Of Business, Bonds, and Buildings at AAMU

146. AAMU’s business program is not currently accredited by either accrediting agency. Capíes (3/1/95) 40.

147. AAMU has begun construction of a facility for its business program as a first step toward AACSB accreditation. Capíes (3/1/95) 40.

148. On March 30, 1995 AAMU’s Board of Trustees approved the issuance of Revenue Bonds worth $46,240,000. The stated use for these bond revenues include: (1) approximately $19 million to construct, furnish and equip a new dormitory (referred to as a “living/learning complex”), which includes a cafeteria and banquet hall; (2) approximately $11.6 million to construct, furnish and equip a new stadium (referred to as a “outdoor physical education complex”),

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which includes luxury skyboxes;

9

(3) approximately $4.7 million to construct, furnish and equip a new business school; (4) $525,000 to improve the electrical wiring of certain other facilities; (5) $672,732 to pay off a previous revenue bond; (6) $5,933,427 to pay capitalized interest; (7) $1,314,200 to pay issuance costs.

149. This bond issue put AAMU, for all practical purposes, at the institution’s debt capacity. Gibson (5/31/95) Tr. 30-31.

150. AAMU has several older dormitories in need of repairs, with the total cost of repairs nearing $18 million. Gibson (5/31/95) Tr. 37.

151. The Court finds that the bond issue clearly demonstrates AAMU’s skewed priorities in light of this litigation, and shows an apparent unwillingness to assist the Court or the state in remedying the current effects of segregation. To spend almost twenty million on a single new dorm when several older dorms need repairs costing an estimated eighteen million dollars, and over eleven million dollars on a new stadium while asking this Court to require the state to pay millions of dollars to create an engineering program is arrogant and irresponsible.

152. The Court heard a great deal of testimony regarding AAMU’s desire to attract and serve local non-traditional students. However, the great bulk of the bond money was spent on projects, the dorm and stadium, that do nothing to assist that

expressed

desire.

153. The record clearly demonstrates that generally HBIs’ stigma of inferiority lies in the areas of academics and physical plant, not dorm and athletic facilities. At AAMU, the Court previously awarded capital expenditures to remedy the physical plant,

Knight,

787 F.Supp. at 1283 .

154. The testimony of the three trustees clearly shows that the bonds were intended to benefit AAMU’s undergraduate residential students and alumni, the vast majority of whom are black. McNair, Holms, Riggins (5/31/95) Tr. 72-86.

155. The Court concludes that the officials at AAMU clearly believe — wrongly— that the stadium and new dorm will enhance its image more than a new engineering school. The Court notes that the bond issue was approved long after discovery was complete and two weeks after evidence originally closed. In other words, AAMU’s Board of Trustees knew, or should have known, what the evidence in this case showed, and thus what their institution required in this litigation.

156. The administration at AAMU show a propensity to build new buildings and allow older buildings to deteriorate. In particular, AAMU built a new dorm in the early 1990’s and is planning to build a new dorm with the bond issue, but testified that several of their dorms are in great disrepair. Gibson (5/31/95) Tr. 15, 35-39. See also

supra,

¶ 417 regarding the new College of Agriculture building.

157. Notwithstanding these criticisms, the Court is decreeing new programs and expenditures at AAMU (and ASU). The Court, however, has placed checks and controls in the decree in order to avoid misuse of Court-awarded relief.

Calhoun State Community College

Enrollment

158. Headcount enrollment figures for CSCC-H for the last three years are as follows: Fall 1992 — 8,070; Fall 1993 — 7,899; and Fall 1994 — 7249. 95 STX 1067, p. E-l; 95 AUX 747. FTE enrollment figures'for Fall 1992 and Fall 1993, are 5,770 and 5,467 respectively.

159. CSCC’s president, Dr. Richard Carpenter, testified based upon the Fall 1993 numbers that CSCC, including both Decatur and Huntsville, had about 8,000 students. Of those 8000, approximately 4,000 came from Madison County, and of those 4000, approximately 2,600 attended classes primarily at

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the Mall location in Huntsville (CSCC-H). Carpenter (3/24/94) Tr. 696-97. In fact, 98% of the students attending CSCC-H are from Madison County.

160. Dr. Carpenter stated that he would

not

expect the other 1400 Madison County residents to switch to attending classes in Huntsville when CSCC-H moved to the AcuStar building because those 1400 tend to be day students and the Huntsville branch will continue offering only evening and weekend classes. Carpenter (3/24/94) Tr. 697-98.

The Acustar Facility

161. The Acustar facility is a large budding, purchased by CSCC to relocate it Huntsville operation. Carpenter (3/24/94) Tr. 662-63.

162. CSCC current facilities, known as the Mall location, are leased facilities, and are in great disrepair. Woolf (3/24/94) Tr. 614-616; Carpenter (3/24/94) Tr. 663.

163. CSCC’s President and the Dean of Instruction both testified that CSCC-H’s relocation to Acustar is merely to improve their facilities and delivery, and not for expansion. Kuzmieic (3/24/94) Tr. 627; Carpenter (3/24/94) Tr. 666. Moreover, the President agreed that, if the Court were concerned about expansion, CSCC-H would “comply with whatever assurances the Court needs that [expansion] is not ... our plan.” Carpenter (3/24/94) Tr. 666. President Carpenter also agreed to guarantee to not offer day courses in Huntsville. Carpenter (3/24/94) Tr. 689. A CSCC student cannot earn a degree by only attending in Huntsville, and President Carpenter assured the Court that that would

not

change after the relocation to Acustar. Carpenter (3/24/94) Tr. 697.

164. In addition to CSCC-H’s programs, the Acustar facility, will also house a United State Army Missile Command computer conferencing center; the North Alabama Science Center for hands-on scientific demonstrations for K-12 students; and a small business incubator intended to help spin off some federally developed high technology for commercial uses. Carpenter (3/24/94) Tr. 652, 656-59. These other entities, instead of paying rent, are renovating their own space, as well as the common areas. Carpenter (3/24/94) Tr. 669.

165. AAMU is a member of the North Alabama Science Center. Carpenter (3/24/94) Tr. 667. AAMU is also a member of the Northeast Alabama Regional Small' Business Development Center, which is a partner with CSCC in the small business incubator. Carpenter (3/24/94) Tr. 659, 660. AAMU also has a relationship with MICOM. Carpenter (3/24/94) Tr. 667.

166. Dr. Carpenter emphasized that AAMU was welcome to participate in any activities at the Acustar budding, as well as teach classes in the facility. Carpenter (3/24/94) Tr. 667-68. AAMU could also teach classes there during the day. Carpenter (3/24/94) Tr. 668.

167. The Court makes additional findings regarding the relationship between AAMU and CSCC-H in the Remedial Considerations section below.

The Montgomery Situation

Previous Findings

168. The Court, previously found that ASU and AUM were substantially different from an institutional perspective..

Knight,

787 F.Supp. at 1329-30, ¶¶ 1751-57 .

169. In the previous trial, the evidence was insufficient to perform a detailed programmatic comparison of ASU and AUM; the Court, however, concluded that

The evidence is sufficient [ ], for the Court to find that the programs in education and business are sufficiently similar so that it has a negative impact on the ability of ASU to desegregate. Conversely, however, the duplication also enables AUM to maintain the high enrollment of black students at its institution. The Court would work a great disservice on the State of Alabama were it to prohibit AUM or ASU from offering either or both of the programs under consideration. The burden to desegregate cannot fall unfairly on one particular race. To eliminate a high demand program at AUM in the expectation that ASU’s white student enrollment would increase might very well have a segre-gative effect on AUM without the corre

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sponding benefit to ASU. Particularly so, given the significant differences in the level of academic preparation between the student bodies of AAMU and ASU.

Knight,

787 F.Supp. at 1380, ¶ 1758 ;

see also Alabama State Teachers Ass’n. v. Alabama Public School and College Auth.,

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

aff'd,

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

170. These findings remain correct in light of the evidence presented during the rehearing. Enarson (2/21/95) 184; Fleming (2/22/95) 111; Wharton (3/14/95) 8; 95 UASX 237, tbl. ACT 28; 95 UASX 237, tbl. ACT 29; 95 UASX 237, tbl. ACT 30; 95 UASX 237, tbl. ACT 31.

171. The Court previously found that the Consent Decree entered between TSUM and the United States, wherein TSUM gave up several programs, rendered moot the issue of duplication between ASU and TSUM.

Knight,

787 F.Supp. at 1331, ¶ 1761 .

Joint and Cooperative Programs

ASU and TSUM

172. After the Court adopted the Consent Decree in the 1991 Order, TSUM’s then President wrote ASU’s then President advising him of the provisions of the Decree regarding cooperative agreements and expressing the hope that they could meet to discuss those matters. Steptoe (3-7-95) 5. They met on February 11,1992. Steptoe (3-7-95) 8.

173. After TSUM sent ASU a draft cooperative program, TSUM’s then Vice President for Academic Affairs notified ASU that discussion would be suspended because ASU appealed the Court’s 1991 Order. Steptoe (3/7/95) 17. However, a few weeks later, on May 4, 1992, TSUM’s then President wrote to ASU’s then Interim President asking that he contact him so they could move forward with the matter. ASU’s Vice President for Academic Affairs testified that he was not aware of that communication, but it is undisputed that the letter was receipted for. Steptoe (3/7/95) 125; 95 TSUX 145; MeGaha (3/16/95) 23.

174. After becoming President in 1992, Dr. Glenda MeGaha called ASU’s then Interim President twice without receiving a return call. She then contacted ASU’s Academic Vice President, Dr. Steptoe, and met with him at ASU. Dr. Steptoe told Dr. MeGaha that, because ASU had an Interim President and the future leadership was uncertain, ASU would take no action with regard to cooperative programs above the level of Academic Vice President. MeGaha (2/8/95) 53-54.

175. After Dr. Harris became ASU’s President in June 1994, President MeGaha wrote him on June 2, 1994 suggesting that cooperative program negotiations resume. Steptoe (3/7/95) 21; MeGaha (2/8/95) 55.

176. Meetings regarding cooperative programming resumed in August 1994 between ASU’s Vice President for Academic Affairs and TSUM’s Vice President for Academic Affairs. Alexander (2/8/95) 3.

177. A draft of the cross-enrollment program prepared by TSUM has been presented to ASU. The hope is to have it implemented by Fall 1995. Alexander (2/8/95) 3-4; Steptoe (3/7/95) 24.

ASU and AUM

178. The 1991 Remedial Decree envisioned joint or cooperative programs between ASU and AUM in the areas of education and business, and a Committee of Cooperation was created in Montgomery to foster this process.

Knight,

787 F.Supp. at 1330, ¶ 1760 .

179. Beginning with a pilot program, a number of joint and cooperative efforts between these two schools have taken place beginning with the 1993-94 school year. For example, in the Business area, ASU received sole responsibility for a Money and Banking course and an Investment course, while AUM received sole responsibility for an Insurance course and a Real Estate Finance course. In Education, ASU received sole responsibility for a Reading Education course and Elementary School Curriculum course, while AUM received sole responsibility for a Social Studies Education course and a Remedial Reading Education course. All students seeking a B.S. in Finance from ei

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ther institution must take the above business courses, while the above education courses are mandatory for all students seeking an M.Ed. in Elementary Education. 95 ASUX 51, pp. 7-9. In this limited way, the B.S. in Finance and the M.Ed. in Elementary Education are cooperative degree programs.

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180. Officials at ASU and their counterparts at AUM have met many times to develop this program. Wooding (3/14/95) 32-33; Steptoe (3/7/95) 103-04. The fact that ASU is on the semester system, while AUM is on the quarter system has created no major problems. Wooding (3/14/95) 33. The Montgomery Committee on Cooperation reported on these efforts, and its report has been accepted by the Court. 95 ASUX 51; Order of October 21, 1992.

181. In addition to the mandatory cross-enrollment programs described in ASU’s 1995 Exhibit 51, the two schools have encouraged voluntary cross-enrollment of students. Wooding (3/14/95) 31-32; 95 ASUX 53. As of Spring 1995, 30 AUM students are taking courses on the ASU campus, while 54 ASU students are taking courses on the AUM campus. 95 ASUX 55. In the last two academic years, a total of 228 ASU students have cross-enrolled at AUM, and 213 AUM students have cross-enrolled at ASU. 95 ASUX 54; 95 ASUX 55; Nance (2/7/95) 77-79.

182. Joint and cooperative courses can be useful in supporting other program remedies. St. John (3/16/95) 29-30; Conrad (2/28/95) 28-29. In Montgomery, they can serve a useful purpose in acquainting white Montgomery residents with the ASU campus and ASU offerings. Nance (2/6/95) 85; Steptoe (3/7/95) 62.

183. AUM’s President, Dr. Saigo expressed the view that both he and Dr. Harris of ASU are committed to a cooperative and productive relationship between the two institutions, for the benefit of the institutions and Montgomery. Saigo (3/15/95) 15-16.

184. The Court applauds the efforts now being made in Montgomery, and encourages ASU, AUM, and TSUM, to continue the joint and cooperative efforts.

185. During testimony, AUM’s officials suggested several possible joint programs, between AUM and ASU. These include a Ph.D in special education, and master’s program in nursing (with an emphasis in the rural health field), music, social work, and a faculty exchange in allied health areas. Nance (2/6/95) 75, 83-85; Greniewicki (2/15/95) 35-37.

186. The Court, in the remedial decree, directs the Long-Term Planning and Oversight Committee at ASU to consider these joint programs as possible desegregative remedies that will conserve financial resources.

Troy State University in Montgomery

187. The Court previously found

Pursuant to the Memorandum of Agreement, TSUM opened in 1965 as a racially integrated institution. TSUM has no history as either a

de jure

or

de facto

segregated institution. African-American students constituted approximately 25% of the enrollment in the spring quarter of 1965, the first session conducted by TSU in Montgomery. Hardwick, (3/18/91) 3-4; SOF ¶ 167; Stewart (3/18/91) 6-7.

Knight,

787 F.Supp. at 1127, ¶430 . This finding, however, does not end the Court’s inquiry on remand.

188. Blacks represent 29.6% of the student enrollment at TSUM as of Fall 1994, and with the exception of Livingston University, TSUM has the highest representation of black students of all of the PWI’s in the State. 95TSUX95; 95 TSUX 96; McGaha (2/8/95) 42-43.

189. The racial composition of TSUM’s student enrollment is approximately the same as the racial composition of the three county area (Montgomery, Autauga, and El-more Counties) from which most of Troy Montgomery’s students come. McGaha (2/8/95) 43.

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190. TSUM exclusively serves nontraditional students, also referred to as adult learners. MeGaha (2/8/95) 10; Allbritten (2/7/95) 4-5.

191. The United States’ expert witness testified regarding non-traditional students “I think it’s a pool of students that has to and should be expanded and to the degree we expand that pool then we’ll need the slots in historically black and historically white colleges that will serve the need of those students.” Allen (3/9/95) 72.

11

192. Differences, other than age, exist between non-traditional age students and traditional age students in terms of the educational process. Generally older students are more mature, more focused on the task at hand, and present a greater challenge to the instructor. Courses for adult learners can move at a more rigid pace, and a higher level of performance can be expected. Jordan (3/8/95) 55-56.

193. Teaching methods differ as between traditional age students and non-traditional age students. The method used with traditional age students is known as pedagogy (from the Greek origin of “leading the child”). The method used at TSUM is an-dragogy (from the Greek origin of “leading the adult”). MeGaha (2/8/95) 23.

194. Adults “are not concerned about anything that doesn’t directly relate to their academic experiences.” MeGaha (2/8/95) 21. For example ASU seeks remedial funds to obtain,

inter alia,

2 banquet rooms, 2 private dining rooms, a ballroom, television lounges, a recreation room with pool tables, tennis tables, game tables, video and pinball machines, and 5 bowling lanes. ASU Remedy Proposal, Programs and Facilities Needs Assessment 38-39. It is undisputed that such facilities would be of no interest to adult learners. MeGaha (2/8/95) 22.

195. An institution which serves adult learners must provide flexible scheduling, creative educational delivery systems, and be willing to treat the adult students with respect and value the experience they bring to the classroom and to the university. Martin-dale-Stanton (2/8/95) 3.

Í96. One example of flexibility and convenience is that TSUM imposes no deadline for applications before start of classes. Student may turn in applications up until the end of the second day of class. Martindale-Stanton (2/8/95) 7. '

197. TSUM does not seek high school students, and refers them to the area colleges (including ASU), which serve traditional age students. Martindale-Stanton (2/8/95) 5-6.

198. A major deterrent to adults returning to the classroom is a lack of confidence or fear of embarrassment due to feeling “out of place” with younger students. TSUM attempts to eliminate this deterrent by assuring them that the mission. of the institution is focused on meeting the needs of adults and that the majority of the students in their classes will be adults with similar experiences and responsibilities. Martin-dale-Stanton (2/8/95) 9.

199. The Executive Director of the American Association for Adult and Continuing Education testified that an institution which specializes in the education of adults better serves the educational needs of non-traditional age students than a comprehensive or general purpose university. 95 TSUX 77; Allbritten (2/7/95) 3.

200. ASU’s president, on the other hand, believes that “there is nothing unique about students who have jobs full time and go to school on a regular basis.” Harris (3/14/95) 39.

201. ASU failed to demonstrate

any

desire until the Summer of 1994 to attract nontraditional students. In the Summer of 1994, ASU hired a Director of Continuing Education and Community Services and published its first catalogue which included a section of “Evening and Weekend Studies.” Steptoe (3/7/95) 93-94; MeGaha (2/8/95) 10-11; Fleming (2/22/95) 130. During the trial ASU established only that this Director was white, but did not establish any other qualifications,

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or institutional initiatives, other than continuing an informal study. Steptoe (3/7/95) 93, 113-14.

202. Moreover, the percentage of evening and weekend classes offered by ASU have been declining while total enrollment has been increasing. Steptoe (3/7/95) 119; 95 TSUX 132; 95 TSUX 133; McGaha (3/16/95) 4-5.

203. Many of ASU’s evening and wéek-end courses are graduate courses. 95 TSUX 132; 95 TSUX 133.

204. Institutions which primarily serve traditional age students tend to treat the education of adults as subordinate, having a lesser importance and role. Allbritten (2/7/95) 8-9. In addition to the above, another symptom of such an attitude is that adjunct faculty are less appreciated. Allbritten (2/7/95) 17-18.

205. Adjunct faculty at TSUM serve an important and primary role, bringing to the classroom current practical experience in the real world, combined with academic credentials, which blend effectively to serve the working adult student population at that institution. Alexander (2/8/95) 6; Edwards (2/8/95).

206. TSUM saves substantial faculty costs by using adjunct faculty to teach almost half its courses. TSUM has 140 adjunct faculty and 33 full time faculty. A full time faculty member makes about $40,000 in salary, and teaches 9 courses per year. The adjunct faculty are paid approximately $1,300 per course and, and therefore the same 9 courses cost, in terms of salary, only $11,270. Edwards (2/8/95).

Courses Relinquished, by TSUM in Consent Decree

207. As noted

supra,

¶ 171, the consent decree between the United States and TSUM remedies unnecessary course duplication between TSUM and ASU.

208. Under the terms of the Consent Decree, TSUM relinquished 23 degree programs. The average enrollment in the programs was 464. 95 TSUX 140; McGaha (3/16/95) 15. There were 869 students with declared majors in the relinquished programs that did not return to TSUM after Fall 1991. 95 TSUX 141; McGaha (3/16/95) 15-16. Although some of those students left for reasons other than program relinquishment, some number of those students left because of the program discontinuance. McGaha (3/16/95) 15-16.

209. In Montgomery, TSUM primarily competes with private institutions for nontraditional age students, including Huntington College and Faulkner University, which are not parties to this litigation. McGaha (2/8/95) 33.

210. The record strongly indicates that Faulkner University, and not ASU, was the primary beneficiary of the Consent Decree entered into by TSUM and the United States. 95 TSUX 94; McGaha (2/8/95) 37-38; 95 TSUX 84, p. 2; 95 ASUX 66; 95 ASUX 67; Wooding (3/14/95) 48-49, 54, 62.

Distance Learning at Troy State

211. The educational system in this Country is increasingly moving toward taking courses and earning degrees through “distance learning,” including the use of television and computers. Wagner (2/8/95) 8, 15; Enarson (2/21/95) 169.

212. The educational field is entering a revolutionary era because of advances in electronic technology, leading one expert witnesses to state, “the issues you’re dealing with right now in the next five or ten years are going to be meaningless, because [with] technology people are going to sit there at home and take courses from home or work and tap into whatever college they want....” Allbritten (2/7/95) 27.

213. TSUM operates a distance learning program which, at the time of the trial, had 580 students taking courses by cable television. Wagner (2/8/95) 8.

214. In the past, ASU had a cable channel but failed to use it for the delivery of courses, and the channel was removed from operation in 1994. Wagner (2/8/95) 13-14.

215. It is possible to obtain degrees exclusively through distance learning at TSUM. Wagner (2/8/95) 19.

216. TSUM’s distance education program should not be moved to ASU because of the

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problems of obtaining adequate attention to distance learning by a university with multiple focuses. Wagner (2/8/95) 27. This finding is especially pertinent because ASU recently gave up a cable channel.

Degrees Awarded at TSUM and ASU

217. In academic year 1993-94 TSUM graduated more students than ASU although ASU has many more total students. Specifically, over the past six years, relative to TSUM, ASU has averaged almost two and a half times higher FTE enrollment, over one and a half times higher headcount enrollment, but awarded almost the same number of degrees.

218. The following charts display FTE enrollment, headcount enrollment, and total degrees awarded at ASU and TSUM for the last six years.

ENROLLMENT — PTEs

88-89 89-90 90-91 91-92 92-93 93-94 Ave. ASU 3426 3791 3761 4093 4930 5046 4175 TSUM 1464 1634 1566 1853 1952 2011 1747 STX 1005; STX 1006.

ENROLLMENT — HEADCOUNT

88-89 89-90 90-91 91-92 92-93 93-94 Ave. ASU 4045 4456 4587 4822 5488 5608 4834 TSUM 2634 2833 2736 3193 3331 3469 3033 STX 1005; STX 1006.

DEGREES AWARDED — ALL LEVELS

88-89 89-90 90-91 91-92 92-93 93-94 Ave. ASU 418 305 386 353 419 470 392 TSUM 365 370 335 412 363 481 388 STX 1005; STX 1006; Harris (3/14/95) 68-69.

219. TSUM, since 1988 has received, on average, $15 million to $17 million

less

in appropriations than ASU.

See

95 STX 1001; 95 STX 1002; 95 STX 1003; 95 STX 1004; 95 STX 1067.

Alabama State University

220. This Court was instructed to “determine whether the limited missions, alone or in combination with other policies, continue to have segregative effects on student choice.”

Knight,

14 F.3d at 1546 . While the limited missions have had some effect, ASU and its leaders, through acts or omissions, have adversely affected that institution’s ability to attract other-race students. The Court has set out some problematic conduct in previous findings — such as the loss of the cable channel, and reluctance to cooperate prior to Dr. Harris’ hiring.

221. The ultimate result of these self-inflicted wounds at ASU is clearly demonstrated by the fact that AAMU has 23.4 percent other-race enrollment, while ASU lags behind at 3.3 percent. 95 STX 1037;

see also

Knight (2/16/95) 81-82.

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222. In 1992 ASU developed a plan called Project Threshold to recruit white students. Steptoe (3/7/95) 59. ASU’s president acknowledged that at least through February 1995, Project Threshold was not being implemented in a meaningful way. Harris (3/14/95) 47-48.

223. Until ASU hired Dr. Harris as president on June 1,1994, ASU was not making a good faith attempt to comply with this Court’s. 1991 directive to “develop and implement a plan to recruit white students to its campus.” Beeton (2/23/95) 99;

see Knight,

787 F.Supp. at 1291 , 1Í1437, 1380, 1JVII A.

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224. ASU’s

1990

Annual Planning Document submitted to ACHE included a goal “[t]o increase the current non-Black enrollment by

ten percent

per year through 1994.” 95 ASUX 138. The

1991

Annual Planning Document the goal “[t]o increase the current non-Black enrollment by

five percent

per year.” 95 ASUX 139. ASU’s witnesses never explained why their goal dropped after the 1990-91 trial, and before the Decree.

Enrollment

225. In Fall 1994, ASU had a total enrollment of 5,037, of which 4872 (96.72%) were black, 122 (2.42%) were white, and 43 (0.85%) were other. 95 ASUX 33, 95 STX 1037.

226. In Spring 1995, ASU’s undergraduate enrollment consisted of 4459 (97.25%) black, 87 (1.89%) white, and 39 (0.89%) other. In Spring 1995, ASU’s graduate enrollment consisted of 452 (81.58%) black, 94 (16.96%) white, and 8 (1.44%) other. Combined, ASU had a total enrollment of 5139, of which 4911 (95.56%) were black, 181 (3.52%) were white, and 47 (0.9%) were other. Response of Alabama State University to Court’s Request, attachment V b.

AAUP Censure

227. The American Association of University Professors (AAUP) placed ASU on its censure list in 1989. 95 TSUX 18; Steptoe (3/7/95) 141.

228. Censure negatively influences the ability of a university to attract faculty members, which has serious collateral consequences because faculty are an institution’s best recruiters. Allen (3/9/95) 98.

229. ASU’s attitude for the five years following censure was disinterest in being removed from the censure list. Steptoe (3/7/95) 142. ASU’s chief academic officer earlier testified in this case that “the administration of Alabama State University is not interested in whether or not our institution is on the censure list, we may place them on our censure list.” Steptoe (3/7/95) 142-143.

230. ASU’s current President considers the censure to be a matter of grave moment and testified he intended to have the University removed from the censure list. Harris (3/14/95) 67.

231. However, no substantial action has been taken to have ASU removed from the censure list. President Harris received correspondence dated July 20, 1994 from the Coordinator of the American Association of University Professors, who stated that he “would very much welcome the opportunity to meet ... and discuss the task before us to continue the process that hopefully will culminate in the removal of AAUP censure from Alabama State University.” 95 TSUX 126; Harris (3/14/95) 71. No action, other than correspondence, has taken place with regard to removal from the censure list since the July 1994 letter. Harris (3/14/95) 71.

Negative Media Coverage

232. An HBI will lose other-race students as a result of negative media coverage of the institution. Leslie (3/1/95) 116-117. Negative media coverage of an HBI serves as a barrier to the institution attracting other-race students. Leslie (3/1/95) 117.

233. ASU is losing white students because of negative coverage in the local media.

13

Allen (3/9/95) 93. Since 1992, the negative coverage includes: a Faculty Senate resolution of no confidence in the Chairman of the Board of Trustees, Knight (2/16/95) 78; a faculty news release in 1992 referring to a media report by ASU as a “tissue of misrepresentations,” Knight (2/16/95) 78; picketing in October 1994 by faculty members for better working conditions, Knight (2/16/95) 78; in April 1994 about ASU having failed to pay the premium on health insurance for the faculty, Knight (2/16/95) 78-79; in 1994 concerning a 257% increase in the student activity fee at ASU, Knight (2/16/95) 79; in October 1994 about ASU having failed to adopt a budget on the last day a budget could be adopted, Knight (2/16/95) 82-83; concerning allegations by Dr. Linnelle Finley regarding his termination for protesting unfair treatment of white faculty, Knight (2/16/95) 83-84; considerable press coverage of the trial in a lawsuit by Dr. Longmire, including the jury verdict against the then President, and the

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Chairman of the Board of Trustees, for sexual harassment, Knight (2/16/95) 84;

14

and concerning student deaths at ASU. Knight (2/16/95) 85.

15

234. Such problems give a perception of poor leadership, which negatively effects the desegregation process. Leslie (3/1/95) 117— 18. An expert witness for the United States agreed that it does not aid desegregation efforts for the Chairman of ASU’s Board of Trustees to make comments such as white folks didn’t have any business choosing the leadership of the black political organizations in Alabama. Leslie (3/1/95) 119.

16

235. The name Plaintiff, John Knight, is ASU’s Director of Communications and Public Affairs. Knight (2/15/95) 4-5. The Court would expect Mr. Knight to do everything possible to assist in eliminating or countering the negative publicity.

State Employee Training

236. Many of Alabama’s state employee training provisions that do not require special accreditation or are not handled by outside vendors are bid to institutions on a competitive basis. Harris (3/14/95) 76.

237. ASU began bidding on those programs for the 1992-93 school year. The State was sufficiently impressed to request ASU to double the number of programs offered to state employees in 1993-94. Harris (3/14/95) 76-77.

17

Accounting at Auburn University in Montgomery and Alabama State University

238. The nature and importance of, and the expense and difficulty associated with, achieving AACSB accreditation are set forth

supra

at ¶¶ 103-106.

239. AUM’s business program is accredited by AACSB at both the undergraduate and graduate levels. Nance (2/6/95) 37-38.

240. AUM’s expensive and difficult effort to achieve AACSB accreditation began in earnest in the early 1980’s. At that time the institution was forced to make some hard decisions regarding resource use to position the institution for a favorable AACSB review. AUM required eight years to gain AACSB accreditation, which came initially in 1988 and was reconfirmed in 1994. Nance (2/6/95) 39-40;

see

Billings (2/13/95) 80-85.

241. Until the early 1980’s AUM’s business faculty was primarily a teaching faculty and not substantially involved in scholarly research and publication. Nance (2/6/95) 40.

242. To secure AACSB accreditation, AUM was required to re-create its business faculty. The process necessitated both hiring additional faculty who brought a strong research ethic, and making difficult tenure and promotion decisions to eliminate unproductive faculty. AUM has reshaped its business faculty in the last 15 years, resulting in a very different kind of faculty than existed before AUM sought AACSB accreditation. Nance (2/6/95) 40;

see

Billings (2/13/95) 7-8.

243. Most of AUM’s 50 permanent business faculty hold terminal degrees, and are productive, active in professional organizations, professionally competitive, and highly mobile. Nance (2/6/95) 41-45; 95 AUX 714; 95 AUX 715; 95 AUX 716; 95 AUX 717.

244. In positioning itself for AACSB accreditation, AUM sacrificed a healthy and viable master’s program in information systems. Nance (2/6/95) 40-41.

245. AUM’s MBA program includes six areas of concentration: the general MBA, finance, personnel management, accounting, information systems, and nursing administration. Nance (2/6/95) 37; 95 AUX 710, pp. 46-52; 95 AUX 711; 95 AUX 712. AUM, however, does not offer a Master’s of Accounting.

See

95 AUX 799, p. 19; 95 USX 20, p. 3.

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246. At the time of the 1991 trial, ASU’s undergraduate business program was not accredited. Effective May 1993, the program became accredited by the ACBSP. Steptoe (3/7/95) 106.

18

247. The respective faculties demonstrate the differences in the emphases of the ASU and AUM business programs. Almost all AUM faculty have terminal degrees and are heavily engaged in research and publication as well as teaching, while ASU’s business faculty are less likely to have terminal degrees and place significantly less emphasis on research and publication. Nance (2/6/95) 41-42; 95 AUX 376, 378, 714.

248. If the MBA program was transferred from AUM to ASU, the AACSB accreditation would be lost and would not follow the program. The “receiving” institution would be required to go without or seek AACSB accreditation. Nance (2/6/95) 41; 95 AUX 764; Billings (2/13/95) 55.

249. If AUM’s MBA program were closed or transferred, AACSB would review AUM’s undergraduate program to determine whether it could remain accredited. It is highly unlikely that such accreditation could be retained if a considerable portion of the terminally degreed business faculty were lost. Nance (2/6/95) 41; Billings (2/13/95) 9-10.

250. Almost half of AUM’s business faculty teach both graduates and undergraduate. Nance (2/6/95) 33; AUX 709, p. 2.

251. Loss of AUM’s graduate programs would result in loss of faculty. Nance (2/6/95) 43-44.

252. Loss of faculty would most likely result in loss of accreditation. Nance (2/6/95) 41.

253. In Fall 1994 AUM’s School of Business had 1335 undergraduates or 26 percent of the total, and 218 MBA candidates or 24 percent of the total graduates. AUX 707.

254. Of the 1335 undergraduates 333, or 25 percent, are accounting students. AUX 708.

255. The Court finds, in light of the investment made by AUM for accreditation, and the importance of AUM’s business and accounting programs, it is not educationally sound or practicable to prevent AUM from offering its current MBA program.

256. However, in order to allow ASU an opportunity to develop a nonduplicated program in business that will assist ASU in attracting other-race students, the Court concludes that AUM shall not offer a Master’s of Accountancy degree for five years, and ASU shall have sole authority to offer such a degree in Montgomery during that period.

Allied Health Programs in Montgomery

257. TSUM offers no programs in allied health. McGaha (2/8/95) 6.

258. AUM offers one allied health program, in Medical Technology. 95 AUX 799, p. 19. AUM’s president specifically offered to “stand[ ] aside” in the area of allied health to allow ASU to build such programs. Saigo (3/15/95) 14-15.

259. Degrees in allied health areas have been identified by ASU as areas for program development. Steptoe (3/7/95) 33; 95 ASUX 140; 95 USX 20.

260. Because, allied health fields are currently among the fastest growing, the Court concludes that ASU’s development of quality programs in this area is educationally sound, practicable and desegregative. Conrad (2/28/95) 27; Blow (2/8/95) 18. Since the last trial, ASU has requested a role change in the allied health area, and ASU officials and ACHE are currently cooperating to get those programs approved. Blow (2/8/95) 17-18.

261. The Court’s remedial decree, in order to obviate snags in negotiations, directs the Long-Term Planning and Oversight Committee, ASU, and ACHE to implement appropriate quality programs in this area as soon as practicably possible.

Policies and Practices With Continuing Seg-regative Effects

Proximate Institutions

262. The Court agrees with Dr. Leslie, “that money is in itself nothing. It’s only

*307

what money enables an institution to do, and, of course, an institution can use that money very wisely or moderately wisely or whatever. But without money, it’s almost impossible to do anything.” Leslie (2/28/95) 6.

263. The State of Alabama allowed UA and CSCC in Huntsville, and AU and TSU in Montgomery to move into geographic competition with AAMU and ASU, and failed to provide ASU and AAMU "with the resources to

fairly

compete with those institutions. Leslie (2/28/95) 36-37, 146; Sullivan (3/8/95) 5-6. Such failure was because of the State’s prior practice of racial discrimination, and ASU’s and AAMU’s heritage as institutions which served black citizens.

264. AUM and TSUM in Montgomery, and UAH and CSCC-H in Huntsville insist that they do not compete with the ASU and AAUM respectively, because they do not attract the same type of students. That the proximate HBIs and PWIs attract different pools of students is true, and in part proves the point. Had the state (as well as ASU and AAMU) made ASU and AAMU more competitive with AUM, TSUM, UAH, and CSCC-H, the two historically black institutions

could compete

for the same group of highly qualified students. 95 CTX 1, pp. 6-7; Allen (3/9/95) 29-30; Leslie (3/1/95) 153.

265. In Alabama, as in most states, funding for higher education is driven by formula, which in turn is determined by programs.

Knight,

787 F.Supp. at 1200-08, ¶¶ 1044-88 ; Sullivan (3/8/95) 5-6. Programs and funding have a symbiotic relationship; programs require money, but money follows programs, both formula-driven state monies, as well as competitive monies. Sullivan (3/8/95) 5-6; Leslie (2/28/95) 146.

266. The Court finds that, although the State has funded ASU and AAMU better than the other state institutions for at least the last twenty-five years, such funding has not yet put those institutions in the place they would have been but for their black heritage and the

de jure

system. Formula funding, like Alabama’s system, is the effect of cumulative past history. Sullivan (3/8/95) 31.

267. In particular, the lack of funding and, the concomitant dearth of high quality and/or differentiated programs prevents white students who would otherwise attend an HBI, from choosing to do so. Becton (2/23/95) 63; Conrad (2/28/95) 5. General Becton believes that “there will be some students who will not go to A & M. I believe there will be other students who will attend A & M. And I think that once the state gets serious about the business of demonstrating to A & M it is a quality institution, ..., that it will no longer be a concern of being a, quote, black institution, but a quality institution.” Becton (2/23/95) 63. General Becton’s statement applies with equal force to ASU.

268. Lacking at ASU and AAMU is the reputation as an institution, equal in quality to the proximate institutions, resulting from higher levels of funding and programming. Consequently the underdevelopment hinders the HBI in overcoming white students’ and white parents’ resistance to attending, or sending a child to, either ASU or AAMU, especially when a high quality PWI exists in the same locale. Conrad (2/28/95) 24-25; Jordan (3/8/95) 22.

Funding

269. “During the term of

de jure

segregation, the [PWIs] were better funded than the [HBIs] as a whole, and each [PWI] was better funded than either [HBI], This was true not only for UA and AU, but for the white normal schools as well.”

Knight,

787 F.Supp. at 1209, ¶ 1107 ;

see also id.

at 1209-1227.

270. “During the years of

de jure

segregation, the PWIs were treated better with regard to special appropriations, dedicated funds such as fertilizer taxes, capital appropriations and capital bond issues, and other funds over which the state had control or influence, such as federal funds and charitable contributions.”

Id.

at 1227, ¶ 1114.

271. However, at the time of the last trial, ASU’s and AAMU’s percentage of RAP [Regular Academic Programs] appropriation exceeded its percentage of total headcount or FTE enrollment in public senior institutions.

Knight,

787 F.Supp. at 1255-67 .

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272. ASU and AAMU, from 1990-91 to 1993-94 experienced somewhat greater enrollment growth than other institutions, and because formula funding is based upon three year averages, the HBIs’ funding

relative to enrollment and credit hour production

seemed to fall. However, once the 1994-95 appropriations are included in the calculus, this trend disappears. 95 STX 1037.

273. The Court previously made the following findings:

Since at least the end of

de jure

segregation, E & G [Educational and General] funding for students at ASU and AAMU has been equal to that at comparable HWUs in Alabama. This conclusion is supported by the testimony of expert financial witnesses and by the documentary evidence introduced.

At no time in the past or up to the present, however, have any funds been made available to assist ASU and AAMU in overcoming the effects of discriminatory low funding so that they may adequately provide services to their students.

During the period of

de jure

segregation of the public colleges and universities in Alabama the HBU’s were discriminatorily underfunded when compared with HWU’s.

Since at least the mid-1950’s funding by the State of Alabama for HBU’s has improved and for a number of years State funding for ASU and AAMU has been at least on a par with the public universities in Alabama that are comparable.

When comparing funding of higher education in Alabama on a per student basis or FTE basis students at ASU and AAMU are not funded as well as the average for students attending Alabama’s HWU’s. This difference is, in part, the result of high cost programs at some of the HWU’s which are not offered at the HBU’s.

In the most recent years, contrary to the wishes of the Governor of Alabama and ACHE, ASU and AAMU have been better financed on the FTE basis or per student basis than comparable universities in Alabama. Noticeably, this condition has existed during the more active life of this litigation.

Funding provided by the State for the education of students at ASU and AAMU has not allowed either of these institutions to provide an education to its students in a manner which has overcome the effect of past discriminatory under funding for the operation of HBUs and to provide an education today free from the stigma of past discrimination such as poor physical facilities and the tarnish of a reputation of lack of quality education.

Knight,

787 F.Supp. at 1271, ¶¶ 1282-88 .

274.The Court made the previous findings regarding the Funding Formula

The Alabama formula is no exception [to the general rule that formulas are ultimately driven from some historic distribution of past resources]. The unit values that drive the formula emanate from the allocations and expenditures of the past. USX 5, p. 33.

One reason state appropriations per student are higher at the University of Alabama and Auburn University, is because they have higher enrollments in higher expenditure academic fields and academic levels. USX 5, p. 33.

The traditionally white universities possess far more of the high expenditure curricula and graduate programs. An institution with programs that have spent more money in the past will receive more money in the future. USX 5, p. 33.

Existing curricular distribution among institutions, plus enrollments, is what drives the formula. Typically larger institutions will enjoy economics of scale. Usually this will mean lower costs for educating a given student enrolled in a curriculum common to both the HBUs and HWUs. Smaller institutions typically will have less capability to educate students under a standard formula amount. USX 5, p. 34.

The Alabama formula favors large, complex HWUs. The formula yields first an amount for instruction based upon institutional enrollments in accordance with weights. This amount, which favors institutions with historically higher expenditure curricula, serves as the base for subsequent formula categories. Under the for-

*309

muías, the more an institution receives in the instruction category, the more it will receive in most other categories. USX 5, p. 34.

The advantage of the formula to those Alabama institutions having the more complex curricula is extraordinary. The formula illustrates all the advantages of dollar compounding. Almost all formula category yields are compound values of instruction. The institutional support category yields 14 percent of amounts already compounded. In other words, institutional support is calculated as a compound amount of compounded amounts. USX 5, p. 35.

The institutions favored under the formula in Alabama receive another financial advantage in tuition. The institutions with the more complex curricula charge higher tuition; hence, they gain under a tuition adjustment factor in the formula. That factor reduces the overall formula dollar amount by 90 percent of the average state tuition. An institution charging high tuition is permitted to keep the tuition revenue above 90 percent average tuition and have its formula appropriation reduced by a lower average amount, while an institution charging low tuition will have its formula amount reduced as though it were receiving a higher tuition. These latter institutions, which include the HBUs, not only realize less tuition income, their formula based appropriation is also smaller. USX 5, p. 35.

Those HWUs that already gain through the formula core because they possess the curricula which generate extra dollars, also receive other formula amounts for special line items far beyond such amounts for the HBUs. USX 5, p. 36.

The Alabama formula produces more income for institutions with specialized curricula and graduate programs. With relatively minor exceptions, the formula fails to take into account the diseconomies of small size. The formula compounds the gains from specialized and graduate curricula by utilizing values thus obtained as the basis for determining dollar amounts from other (O & M) formula categories. USX 5, p. 36-37.

Knight,

787 F.Supp. at 1207-08 , ¶¶ 1080 -88.

19

20

275. The trends and conditions noted above have continued since the last trial,

with one important exception.

Beginning in 1992 the state began appropriating funds to ASU and AAMU intended to overcome the historical deficiency. In 1992 and 1993 both institutions received funds for Desegregation Planning and ASU received funds for Recruiting/Minority Scholarships. In 1994, both schools receive both types of funds, and additionally received funds for Title VI Program Enhancement.

AAMU ASU

1992-93

Desegregation Planning 265,177 200,000

RecruitingfiVlinority Scholarships 300,000

1993-94

Desegregation Planning 265,177 200,000

RecruitingMinority Scholarships 300,000

1994-95

Desegregation Planning 200,000 200,000

Reeruiting/Minority Scholarships 300,000 300,000

Title VI Pgm. Enhancement 616,981 1,792,783

1995-96 Request

Desegregation Planning 259,872 200,000

RecruitingMinority Scholarships 389,674 300,000

Title VI Pgm. Enhancement 801,981 none made

STX 1003, p. B-l; STX 1004, p. B-l; STX 1067, pp. B-l, B-2.

276. Desegregation Planning funds have been used by the schools to pay consultants

*310

and fees for program planning. Steptoe (3/7/95) 144-45.

277. Recruiting/Minority Scholarships money was appropriated to the HBIs to help attract white students. Steptoe (3/7/95) 64-66; Harris (3/14/95) 40-42. Unfortunately, ASU officials saw fit to spend, in addition to the Desegregation Planning money, $100,000 of the first Scholarship appropriation on administrative expenses. Steptoe (3/7/95) 66. In fact in 1992-93 ASU spent (or pledged) $53,427 on scholarships; in 1993-94, $162,-147; and in .1994-95, $286,238. In all, of $900,000 appropriated, ASU allocated (by expenditure or pledge) a little over $500,000 for scholarships for 144. students. Harris (3/14/95) 41-42, 72-73, 78. AAMU received these scholarship monies for the 1994-95 year, but made no awards; but has made ten award for students coming in Fall 1995. Ca-píes (3/1/95) 73-74. AAMU has planned to buy a car for the recruitment office and several lap-top computers, among other equipment. Capíes (3/1/95) 101-02.

278. In 1994 ACHE recommended, and the legislature allocated, program development funds under a line item for Title VI Program Enhancement funds. Blow (2/8/95) 20.

279. The Title VI Program Enhancement funds are restricted funds. The legislation contains the following language: “Title VI Program Enhancement Funds to be used by [AAMU and ASU] in the development of ‘new high demand programs’ in the [Huntsville and Montgomery] area as noted in Part V, Section 2D of the Remedial Decree [entered by this Court in 1991]. These funds [are to be used] for studies to assist in prioritizing development of such new programs and for development of such programs upon program approval by ACHE. The instructional support monies may not be expended prior to the high demand programs being approved by the Commission on Higher Education.” 95 UASX 597.

280. AAMU and ASU still have the “instructional support” portion of the Title VI Program Enhancement appropriations from the 1994-95 year. The appropriations bill specifically provided that “the instructional support monies may not be expended prior to the high demand programs being approved by [ACHE].” AAMU has on deposit $417,-506 and ASU has $1,292,783; they also may have, some of the amounts for “consultants/faculty” remaining on hand.

21

The institutions also have interest on these funds.

281. From the court-ordered capital payments, AAMU has $11,483,536 and ASU has $10,667,537.

22

282. The Court emphasizes that the monies just discussed were

not

being appropriated at the time of the previous trial. These monies are appropriated by the State of Alabama to assist ASU and AAMU in overcoming the vestiges of

de jure

segregation. The Court, therefore, will look to these monies

first

in fulfilling the requirements of the Remedial Decree: that is, the Recruiting/Minority Scholarship money will be off-set against the other-race scholarships; the Desegregation Planning money will be used to pay part of the expenses of the Long-Term Planning and Oversight Committee; and the Title VI Program Enhancement money, and remaining Instructional Support money appropriated in 1994-95, will be used to fund new programs, decreed by the Court, as far as it goes.

23

283. With the Title VI Program Enhancement Funds, AAMU and ASU had a higher percentage increase over 1993-94 appropriations than the average of all other senior higher education institutions. 95 STX 1042A; Act No. 93-772 and Act No. 94-470, Acts of Alabama Legislature, 1993 and 1994. Those percentage increases are as follows:

*311

ASU had a 22.33% increase over 1993-94 ASETF Appropriations; AAMU had a 19.86% increase over 1993-94 ASETF Appropriations; and all other senior institutions had a 13.14% increase over 1993-94 ASETF Appropriations.

284. With the Title VI Program Enhancement Funds, AAMU and ASU received higher percentage increases in state appropriations from the time of the 1990-91 trial to 1994-95 than the average of all other senior higher education institutions. 95 STX 1042. ASU had a 45.90% increase over 1990-91 ASETF Appropriations; AAMU had a 41.70% increase over 1990-91 ASETF Appropriations; and all other senior institutions had a 34.01% increase over' 1990-91 ASETF Appropriations.

285. The trends noted in the previous paragraphs obtain even excluding the Title VI Program Enhancement from consideration, albeit by smaller percentages.

Catching up

286. Notwithstanding the above advances, the Court reaffirms the previous findings

Inequality in funding over a number of years cannot be made up overnight. The funding level over a period of years affects a school’s mission, program, facilities, and reputation, all of which can then change only very slowly. Leslie (10/30/90) 30.

Of the major considerations that can affect raw financial comparisons — such as economy of scale, enrollment trends, and historical patterns — the historical patterns are the most important. This is because historical deficits tend to continue over a period of time, and become cumulative, which, of course, means they cannot be erased overnight. Leslie (10/30/90) 30; Leslie (10/31/90) 99.

Even if the reality could be changed quickly, the perceptions may take much, much longer:

it takes a long, long time to turn an institution around, not only in reality, but even in the perceptions that people have of the place, how attractive it will be to students who have known historically that an institution has been under funded, has been in comparative terms low quality.

Leslie (10/31/90) 100.

The historical pattern would affect programs, curricula and reputation. Leslie (10/31/90) 102.

24

Other considerations influence the financial picture. First, the economy of scale means that in general a large school can educate students more economically than can be done at a small school. Second, enrollment trends affect financing. A school with a declining enrollment does not decrease its costs proportionally, and thus a school with a declining enrollment will seem to be better financed than it really is. The opposite is true for a school with a growing enrollment, that is, it will seem to be underfinanced. Both these considerations apply to the HBU’s in Alabama, which are relatively small schools and which have been undergoing enrollment declines in recent years. This means, of course, that the HBU’s will appear to be in a better financial position than they are in actuality. Leslie (10/30/90) 28-30.

Discrepancies in funding grow and become embedded over the years. “A discrepancy of a few hundred dollars in spending per student may have little impact in a single year, but if this discrepancy continues year after year, sometimes less and sometimes more, the basic fabric of the institutions being disparately treated begins to vary more and more.” USX 5, p. 39.

Change takes a long time, and does not occur by itself, but rather requires a major effort. “It is extremely rare for an institution to undergo major change in as little as a decade. Where this does happen, there is usually a massive influx of funds.” USX 5, p. 39.

*312

Sometime after desegregation was ordered in Alabama, the State began to move toward more equal funding, “but by then the present system was in place, and resources had been spread over too many campuses.” USX 5, p. 40.

A factor which should be considered in analyzing funding patterns is the number of students in a school. Comparisons are most appropriate, generally, when measuring similar sized student bodies, or when measuring funds on a per student measure.

Even here, there are some disputes over how to measure the number of students. Alabama uses a measure which essentially measures credit hours, and then divides by 15 per semester for undergraduates and by smaller numbers for graduate level students. Another method measures numbers of full-time and part-time students, as defined by the institution, and takes the total of all full-time students plus one-third of the part-time students. It is impossible to say in the abstract that either system is “right” or “wrong.” The one plus one-third method is commonly in use throughout most of the nation. The Alabama method introduces the mission difference into the calculation by differentiating between students at different levels.

25

If the measurement or comparison is between total dollars, and total dollars per student, then on the average, the HWU’s are better funded than the HBU’s. This pattern holds true whether we look only at state appropriations or at all funds, whether we look at revenues or expenditures, and whether we look at amounts tied to instruction, all student-related items, or all items.

State funds directly affect an institution’s ability to raise other funds. An institution that is better funded can pay higher faculty salaries, which attract professors and researchers who can get research grants from the federal and state governments as well as from private sources. These grants provide supplementary compensation for faculty, which puts the institution in a better market position for hiring strong faculty. These grants also allow an institution to bring in graduate research assistants, who further cut the school’s costs by taking on some of the teaching load. Leslie (10/31/90) 125-26. Also related to the funding of an institution it its public service activities.

Broad based public service is important, because it gives an institution a higher profile and an advantage in attracting special state funding. This visibility is also critical in securing private and corporate contributions. Leslie (10/31/90) 126-27.

The financial slack that occurs when an institution has money not directly needed for the day-to-day operations of its basic program can be put to use developing new programs, especially graduate-level programs, which in Alabama then in turn generate large amounts of money because of the high weights in the funding formula. Leslie (10/31/90) 127.

Major income categories for higher education include public appropriations, state federal and private grants and tuition and fees. Major expenditure categories include instruction, instructional support, academic support, student services, research and public service, plant operation and maintenance, institutional support, and scholarships. Both on the revenue side and the expenditure side, these major categories are usually termed “E & G,” ia, Educational and General, to distinguish them from revenues or expenditures less related to the principal educational function of a school.

Comparisons are made among schools, not because schools have rights or are entitled to funds as such, but because schools are the instruments through which students are reached, which means that the overall resources of a school, whether in funds, facilities, or programs, determine what is received by the school’s students.

Knight,

787 F.Supp. at 1227-29, ¶¶ 1117-34 .

287. Although an institution may change its mission and programmatic offerings with

*313

in a relatively short period, it will take at least ten years and possibly as long as thirty years for the change to be widely recognized and for the reputational changes to occur. Allen (3/9/95) 59-60; Lennon (3/13/95) 48; Hossler (2/15/95) 102-03. Even the Knight Plaintiffs’ experts looked at a time frame spanning fifteen to fifty years. Paul (2/22/95) 36. As a specific, objective example of such time frame, Dr. Billings, Dean of UAH’s College of Administrative Sciences, testified that it took ten years to obtain AACSB accreditation. Billings (2/13/95) 4. Dr. Harris, ASU’s current President, estimated that it would require ten years for ASU to reach Doctoral II status. Harris (3/14/95) 52-53. Once an institution achieves the accreditation or mission change, more time is needed for recognition of the advances. Lennon (3/13/95) 48.

ASU’s and AAMU’s Outspoken Commitment to Their Heritage

288. The Court notes, for purposes of the following discussion, that although ASU and AAMU have been referred to as the Allied (with the Plaintiffs) Defendants, they are, nevertheless, Defendants.

289. Black students rate the “presence of other black students” as a factor influencing their choice of a HBI. 95 UASX 243, p. 47.

290. According to Dr. Leslie, many HBI presidents he surveyed felt that they were on the “horns of a dilemma” between the imperative to desegregate and the pressure from alumni, students, faculty and others to maintain the black identify of their institution. Leslie (3/1/95) 68-69; USX 9, pp. 41-43.

291. Many students at AAMU have indicated that the single most important factor influencing their choice of AAMU was the fact that its student body was predominantly black. 95 UASX 244, pp. 37-38; 95 UASX 493, p. 3.

292. A number of the Knight Plaintiff class and AAMU witnesses in the 1990 trial testified that AAMU should remain under black control and should be particularly designed for black people. Their

expressed desire

was for the institution to remain predominantly black to maintain the identity and heritage of a traditionally black institution. Blackwell (5/29/90) 63-64; Huntington (10/29/90); Martin (10/19/90) 30, 50; Sims (5/29/90) 79; Yarbrough (5/31/90) 37-38; McMillan (5/31/90) 189; Chunn (1/10/91) 138; Cross (5/29/90) 155; Palmer (5/29/90) 166-167; -90 AUX 306, pp. 40-42; Freeman (1/30/91) 179; 85 UASX 1105, pp. 171-173.

26

293. ASU’s efforts to recruit whites over the years has demonstrated a pattern of inconsistent institutional commitment to the desegregation process, and such efforts have been historically deficient. At least as late as 1985, ASU was making

no

special efforts to recruit white students. AUX 778-779. In the 1991 Decree the Court ordered ASU “to recruit white students to its campus.”

Knight,

787 F.Supp. at 1380 , ¶ VII A.

294. In its July 1991 Annual Planning Document, ASU decreased its white recruitment goal from ten percent to five percent.

Compare

95 AUX 139

with

95 AUX 138. There is little evidence that prior to 1993-94 ASU was aggressively seeking other-race students. Hossler (2/15/95) 89, 90, 127; Bec-

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ton (2/23/95) 99; 95 UASX 248, pp. 53-54; 95 AUX 534.

295. Mr. Knight told the Court that, although students at ASU welcome diversity, they “fear of what they consider a takeover.” Knight (2/15/95) 25. One of the Court’s experts, after meeting with ASU officials, believed that they continue to strongly wish to remain predominantly black. Jordan (3/8/95) 72.

296. An institution’s self-acknowledged racial aspect in their mission will effect student choice. Conrad (12/18/90) 11-342;

see also Knight,

787 F.Supp. at 1286, ¶ 1400 .

297. The government’s own experts, Dr. Leslie (11/1/90, p. 382), Dr. Kaiser (11/6/90, pp. 150-51), and Dr. Conrad (12/18/90, p. 342), as well as the former director of admissions at ASU, (85 AUX 8383, pp. 41-43) all agreed that an institution’s determination to maintain its image as a predominantly black institution can affect its attractiveness to white students, thereby influencing student choice.

298. Students are reluctant to attend an institution that is “characterized by a racial identifiability that is different from” then-own background, even though that institution has an academic program in which they are interested. Conrad (12/18/90) 11-210.

299. In short, the desire of an HBI to maintain its racial identifiability extracts an intangible, but very real, cost in the desegregation process. It makes it more difficult to recruit white students to the college. Leslie (3/1/95) 69; Jordan (3/8/95) 24-25, 44-45.

300. The Court finds that although the HBI’s play an important role in higher education, ASU and AAMU have maintained and asserted their black heritage in ways, and to a degree, that has had a segregative effect on student choice.

301.The Court concludes that ASU and AAMU must henceforth act in a manner such that their pride in their heritage does not hinder their, the state’s or the Court’s efforts to reduce segregative effects on student choice. Jordan (3/8/95) 22. ASU and AAMU need not deny their heritage, but they must become institutions not identified solely on the basis of race.

302. The Court concludes, at this point, however, that it is not educationally sound, and most likely not practicable, to close ASU and AAMU.

Leadership at ASU and AAMU

303. As the Court noted previously, the presidency of ASU and AAMU has been marked by instability. AAMU continues to labor under such instability. It does appear that ASU, with the hiring of Dr. Harris, has acquired stability at the presidential level.

304. Success in attracting white students to an HBI requires complete commitment from the institution, from the board of trustees and the president down through the administration, faculty and alumni. Knight (2/16/95) 50.

305. One of the most critical factors in increasing white student enrollment at an HBU is strong institutional leadership. It is critical that the leaders constantly promote the institution as one for all students, such as by attending meetings in the community, to make it clear that the institution is interested in becoming truly desegregated. Wharton (3/14/95) 24-25; Conrad (2/28/95) 14; Blackwell (2/16/95) 81; Harris (3/14/95) 45; McGa-ha (2/8/95) 44; 95 USX 8, pp. 42-43.

306. A mission enhancement, without competent leadership dedicated to desegregation, will not eliminate segregative effects on student choice. Blackwell (2/16/95) 33; Enarson (2/21/95) 109.

307. Regardless of the desegregation strategy or remedy chosen, campus leadership is crucial to the success of that strategy or remedy. 95 USX 9, p. 41 — 43; Leslie (3/1/95) 66; McGaha (2/8/95) 44; Conrad (2/28/95) 14-15; Wharton (3/14/95) 25-26.

308. Even the more radical remedies of program transfer and merger fail when the HBI’s leadership is not committed to desegregation. Fincher (2/9/95) 17-18; 95 UASX 244, p. 30.

309. In the current socio-political environment, the presidency of an HBI is a difficult task, wherein the president faces competing pressures: desegregating on the

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one hand and, maintaining and reinforcing the HBI’s heritage on the other. 95 UASX 244, p. 30-31; Hossler (2/15/95) 81-82; Leslie (3/1/95) 69-70. The reports filed in this case contain anecdotal evidence of resistance from alumni and trustees to presidents’ desegregation attempts. 95 USX 9, p. 91; 95 UASX 244, p. 30-31. The name plaintiff, John Knight, affirmed that “in any way that we fashion a remedy to this case, that in order for the college presidents to be able to implement completely what we are talking about as far as remedy, that it’s going to require some protection from the Court to fashion in such ways that they know they have the full support of the Court to be able to implement it.” Knight (2/15/95) 27.

27

310. In this case, failure of the Boards of Trustees and alumni (practically speaking, although they are not parties), to actively support the campus leadership’s desegregation efforts will result in substantially more limited range of, and considerably more draconian, remedies.

REMEDIAL CONSIDERATIONS

Program, Transfer Generally

311. Although recommended by many experts, including the court-appointed experts, the Court rejects program transfers as an educationally sound or practicable remedy for many reasons. Trendler (2/9/95) 25; Wharton (3/14/95) 10-15.

312. Dr. Enarson stated: “Transfer is an absolute misnomer. You can’t disassociate the program from the people who are teaching it. Really, when we talk transfer, we’re talking about discontinuing a program at institution A and starting up a new program at institution B.” Enarson (2/21/95) 21; Tren-dler (2/9/95) 21. Dr. Enarson concluded, and the Court agrees, that program transfers are generally a bad idea. Enarson (2/21/95) 21.

313. Programs have a solid institutional identity and there is a strong “symbiotic relationship” between programs and institutions. Nance (2/6/95) 24-25; Trendler (2/9/95) 22-23.

314. Accrediting agencies treat transfer as termination and will not transfer specialized accreditation. Nance (2/6/95) 25; Tren-dler (2/9/95) 24-25.

315. Program transfers are very rare, and there is little evidence of success or effect. Nance (2/6/95) 23; Fincher (2/9/95) 17-18; Trendler (2/9/95) 21, 25. Specifically, there are significant risks of loss of faculty, loss of students, and serious disruption to the former institution. Trendler (2/9/95) 25. Disruptions to the former institution include loss of enrollment and tuition. Wharton (3/14/95) 13-14.

316. A substantial risk of failure and a concomitant decrease in reputation for the

receiving

institution also exist. Wharton (3/14/95) 11.

317. The Court finds no evidence of program transfers’ educational soundness or practicability in Alabama, sufficiently compelling to undertake the substantial risks associated therewith.

Engineering at AAMU

318. AAMU made its first request to ACHE for an engineering program in November 1993. 95 AAMUX 203; Bond (3/2/95) 22.

319. ACHE believed that AAMU’s proposal duplicated programs at UAH, and therefore, were inconsistent with the Court’s 1991 decree. Dr. Henry Hector, the Executive Director of ACHE, also stated that the programs had been described to him “as programs to attract more black engineers.” 95 ASUX 2 (Deposition of Hector), p. 11. Importantly, the specifics of AAMU’s proposal were not reviewed. Blow (2/8/95) 12-13.

320. ACHE, in a good faith attempt to comply with the 1991 Decree, directed AAMU to submit an addendum on how the program would attract other-race students and to discuss with UAH officials how to limit duplication. 95 ASUX 2 (Deposition of Hector), p. 11-12; Bond (3/2/95) 22;

see Knight,

787 F.Supp. at 1331, ¶¶ 1763, 1764 .

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321. AAMU had withdrawn the proposal in September 1994, and only resubmitted it in December 1994 or January 1995, immediately before the rehearing began. 95 AA-MUX 1, App. F; Bond (3/2/95) 22; Blow (2/8/95) 12.

322. The Court notes that ACHE did not rebuff AAMU’s proposal for reasons other than concerns about complying with the Court’s 1991 Decree and unnecessary duplication. The Court decree, and more particularly, the Long-Term Planning and Oversight Committee should eliminate these concerns.

323. AAMU’s current engineering program is limited to degrees in engineering technology and a stand alone program in civil engineering. Bond (3/2/95) 13-18.

324. It is extremely difficult to achieve Accrediting Board for Engineering and Technology (ABET) accreditation in only one discipline such as currently offered by AAMU. Martin (2/28/95) 19; Becton (2/23/95) 17.

325. Today an engineering facility costs at least ten million dollars. A complete engineering library is critical to accreditation of engineering programs. Sims (3/1/95) 5.

326. In beginning to build a quality engineering program, some type of electrical and mechanical engineering are logical first steps. Martin (2/28/95) 18-19.

327. AAMU’s limited engineering offerings in a state which has several schools of engineering is directly traceable to prior segregation. In the absence.of segregation resulting in inadequate facilities and programs at AAMU, there is little doubt that UAH would not exist, or, more likely, that AAMU would offer a wider spectrum of engineering and technical programs than currently found there. AAMU’s status as a land grant university further supports such a conclusion. Jordan (3/8/95) 18; Wharton (3/14/95) 40; Wong (2/27/95) 56; Martin (2/28/95) 21; Bond (3/2/95) 38-39.

328. A quality engineering program at an HBI successfully attracts white students; for example, North Carolina A

&

T has ten percent white undergraduates and twenty percent white graduate students. The white student population began as mostly nontraditional, commuting students, but over time and because of the quality of its offerings, A & T has begun to attract traditional age white students as well. Martin (2/28/95) 8-10.

329. Creation of a quality engineering program may financially benefit the whole university by attracting substantial external funds, including state funding, private support and research support. Martin (2/28/95) 10-13; Becton (2/23/95) 18.

330. A quality engineering program at an HBI can also attract significant numbers of white students even when there is a high quality, proximate PWI. Martin (2/28/95) 21; Bond (3/2/95) 28.

331. Engineering programs are the type of “high demand” offerings which routinely attract significant numbers of white students. Engineering is one program that a student chooses ahead of the institution itself. Hos-sler (2/14/95) 70-71, 149-150.

332. Moreover, the addition of engineering at AAMU expands educational opportunities for Alabama’s black citizens. Bond (3/2/95) 28. HBIs have had the best record of producing black engineering graduates. Becton (2/23/95) 19; 95 CTX 4, p. 16. Despite the existence of several engineering schools in the State of Alabama, a need exists to train more minority engineers. W/harton (3/14/95) 42; 95 STX 1056 (Deposition of Sangster), p. 20, Becton (2/23/95) 18; Billings (2/13/95) 89;

see

95 AAMUX 199; 95 AA-MUX 200.

333. Black engineers hold only 50 of 7,000 engineering jobs in the Huntsville/Madison County high technology area, and engineering programs at AAMU would provide badly needed new opportunities for black students to get engineering degrees. Wong (2/27/95) 55-57.

334. AAMU has recruited an engineering dean with unique qualifications for attracting and retaining minorities. Dr. Bond developed a nationally recognized minority engineering program at Purdue. Bond (3/2/95) 4-5, 11.

335. Addition of engineering offerings will enhance the entire institution. First, the

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addition of a quality program begins to change the perception that AAMU is an inferior institution because it is historically black. Martin (2/28/95) 14; Becton (2/23/95) 20; Bond (3/2/95) 38; Jordan (3/8/95) 36; Blackwell (2/16/95) 39-40; Hossler (2/14/95) 139. Furthermore, an engineering program should substantially increase the recruiting presence of large national corporations and result in more job offers for AAMU graduates in other areas, increasing opportunity for black citizens, as well as increasing the institution’s presence and image as a quality institution. Becton (2/23/95) 21; Bond (3/2/95) 37; Martin (2/28/95) 14.

336. Adding two engineering programs is both educationally sound and practicable. Becton (2/23/95) 15-16; Jordan (3/8/95) 35-36; 95 STX 1056 (Deposition of Sangster), p. 49, 56; Allen (3/9/95) 90. Demand for engineering is cyclical and, even if currently low, will inevitably go up again. 95 STX 1056 (Deposition of Sangster), p. 19.

337. The additional programs will not unnecessarily duplicate the offerings currently available at UAH. Bond (3/2/95) 32, 31-36; Becton (2/23/95) 15. Given the importance of engineering to Huntsville’s economy, AAMU will not soon achieve the support and recognition it needs in the Huntsville community absent a quality school of engineering. Billings (2/13/95) 87; Bond (3/2/95) 31-36.

338. The Long-Term Planning and Oversight Committee is charged, pursuant to the Decree, to implement a fiscally and educationally sound engineering program at AAMU.

AAMU and CSCC-H

339. The Court previously concluded that CSCC-H’s business offerings hindered AAMU’s ability to attract white students.

Knight,

787 F.Supp. at 1329, ¶ 1745 .

340. CSCC-H provides essentially the same core of courses offered during the first two collegiate years at AAMU, and such offering impedes AAMU’s ability to attract white students. Blackwell (3/22/94) Tr. 314-15, 318-20.

341. CSCC-H’s offerings, however, are overwhelmingly at nontraditional times— lunch hour,- evening, and weekend. 94 SBEX 100, pp. 5-7; 94 SBEX 150, p. 32.

342. On the other hand, the AAMU course offerings duplicated by CSCC-H are overwhelmingly offered at traditional times.

See

94 SBEX 211; 94 SBEX 212; 94 SBEX 213; 94 SBEX 214.

343. The Court finds that CSCC business offerings in Huntsville attract many white students who might otherwise take business courses at AAMU. Becton (2/23/95) 59-60; Wharton (3/14/95) 44-45; Capíes (3/1/95) 9-10. AAMU has little success recruiting students from CSCC. Henson (3/6/95) 133-34; Capíes (3/1/95) 13-14.

344. A great deal of AAMU’s lack of success, however, results from a failure to make a concerted effort.

345. AAMU’s dean of academic affairs acknowledged that nothing prevents AAMU from offering night or weekend courses. Ca-píes (3/1/95) 85-86.

346. Prior to this Court entering an order requiring cooperation, AAMU’s officials were uncooperative, uncompromising and difficult in negotiations with CSCC-H officials regarding classes at CSCC-H’s Mall location. Kuzmicic (3/24/95) Tr. 635-36. Those negotiations began at least in 1991. Capíes (3/23/94) Tr. 394.

347. The Court ordered AAMU be allowed to teach courses to CSCC-H students at CSCC-H’s mall location. In Fall 1993 those courses were not listed in AAMU’s catalogue, and were still not listed as of Spring 1995. Capíes (3/23/94) Tr. 441; Ca-píes (3/1/95) 130.

348. CSCC-H makes space available for recruiting at its Mall location. UAH comes on occasion, Athens State comes often, but AAMU rarely comes. Wolff (3/24/95) Tr. 618.

349. Although AAMU teaches an education course on community colleges, there is no evidence that the AAMU students in that course ever visit CSCC or use it as a resource. Capíes (3/23/94) Tr. 418-20.

350. Even the remedy proposal offered to the Court lacks enthusiasm for the function

*318

currently served by CSCC-H. Dr. Capíes conceded that AAMU recently had voluntarily dropped some associate degree programs. Capíes (3/1/95) 90; Capíes (3/23/94) Tr. 470-71. AAMU’s remedial proposal, includes as part of its meticulous detail, a proposed role matrix, but fails to include associate degrees among its future roles. Capíes (3/1/95) 90-91.

351. Dr. Capíes also conceded that, between takeover and closure of CSCC-H, AAMU preferred closure. Capíes (3/1/95) 95.

352. AAMU’s failure to offer courses at the non-traditional times has impeded its ability to attract white students from the local area. AAMU officials never offered an adequate explanation of their failure to even attempt to compete in this student sub-market. AAMU has only said that were the Court to

give

them an expanded role in the community college mission area, that they would begin making the appropriate course offerings. Blackwell (3/22/94) Tr. 322; 95 AAMUX 1, p. 16.

353. CSCC-H meets an unserved need in the Huntsville area. No expert suggested eliminating the community college function from Huntsville, but recommended allowing AAMU to take over that function. 95 CTX 1, pp. 24-26, 28, 29; 95 CTX 3, pp. 7, 9; 95 CTX 4, p. 15; 95 CTX 5, p. 30; Roueche (3/15/95)

in passim;

Roueche (3/2/94) Tr. 481-531.

354.

Merely

setting up an structure that places a predominantly white community college under the administrative aegis of a HBI is

not

desegregative. Phelps (2/7/95) 59; Enarson (2/21/95) 169-73.

355. Attracting the type students who attend CSCC would assist AAMU to desegregate. Hossler (2/15/95) 106-07, 143.

■ 356. The Court concludes, that it is not educationally sound to terminate CSCC’s presence in Huntsville. The Court does conclude, however, that, in order to allow AAMU to attempt to compete for nontraditional and commuting students, the FTE enrollment/credit hour production of CSCC-H shall be capped at a level equal to no more than five percent above the average of the past three academic years.

28

CSCC-H may move its operation to the AcuStar building if it wishes. The Court concludes that such a cap is the most educationally sound, practicable and desegregative remedy at this time.

Other-Race Scholarships

Generally

357. In performance funding, an institution is paid for achieving a goal as opposed to being paid for trying to achieve a goal. Other-race scholarships are an example of performance funding because money can be expended only if white enrollment at the HBI increases. Caruthers (3/15/95) 22.

358. The research evidence on student choice and student persistence demonstrates that financial aid, economic considerations, and factors involving the accumulation of debt, all play a very important role in the student choice and persistence process. St. John (3/16/95) 34, 35.

359. An HBI’s ability to attract white students is affected by the prospective cost of the institution to potential students.- Siskin (2/13/95) 22.

360. Financial aid is a powerful magnet in attracting white students to HBIs. Enarson (2/21/95) 158; Jordan (3/8/95) 83; Becton (2/22/95) 80-81; Caruthers (3/15/95) 22.

361. Based on a review of data from historically black institutions nationally, it appears that offering carefully designed other-race financial aid is an important mechanism to promote desegregation. 95 KNX 2; Blackwell (2/16/95) 46; Hossler (2/14-15/95) 67; 95 USX 8, pp. 30-32. Every HBI which enrolls large numbers of white students currently has, or has had in the past, special financial aid programs designed to encourage white enrollment. 95 UASX 244, p. 26.

362. According to Dr. Walter Allen, an expert witness presented by the United States, specially tailored financial aid incentives, including innovative devices such as

*319

targeting students who may not be eligible under existing financial needs formulas, may be a very effective way to assist in desegregation of HBIs. Allen (3/9/95) 121, 122.

363. In order to be effective aids in the desegregation process, financial assistance programs should be carefully targeted and designed specifically to promote desegregation. St. John (3/16/95) 40, 41.

364. Information about the availability and eligibility of other-race financial aid should be disseminated on a statewide basis and should be distributed at the earliest possible time in the college choice process for students. Hossler (2/15/95) 98-99.

365. Students who benefit from the other-race scholarships and have a positive experience will likely benefit the school in further other-race recruiting. St. John (3/16/95) 34, 35; Allen (3/9/95) 76.

366. Many white students who provide the most likely avenue for desegregating HBIs are nontraditional age, working students. Those students may not fit into the eligibility requirements of existing financial aid programs, because of their earned income or their part-time status. McGaha (2/8/95) 27, 28. Therefore, a financial aid strategy designed to desegregate HBIs must include different award criteria or more flexible award criteria than those currently in use in traditional financial aid programs. Hossler (2/15/95) 74, 75, 76; St. John, (3/16/95) 34, 35.

367. To the extent that AAMU and ASU use financial aid incentives to recruit white students, the most promising target group for such programs are part-time white students who want to return to college and are hoping to complete a degree which they have already begun. 95 UASX 244, p. 55; Hossler (2/15/95) 106.

AAMU and ASU

368. Among high school juniors and seniors in Madison County who are considering attending a “local school” (e.g. UAH, AAMU, CSCC-H or Drake), factors dealing with financial aid, economic cost and tuition ranked higher than factors such as the number of specialized major programs, the presence of many graduate programs, or the level of admission requirements. 95 UASX 239, Table Survey 38. The Court notes that this cost-concern characteristic generally holds true for nontraditional students.

369. Most white students currently enrolled at ASU receive scholarships or other forms of financial aid, and for many of these students the amount is full tuition and fees. 95 ASUXs 39-48; Steptoe (3/7/95) 61-62. The total includes 67 new students, a total apparently spurred by an article in the

Montgomery Advertiser

about scholarship money available for white students. 95 ASUX 48; 95 ASUX 147. In a survey, 84% of white ASU students stated that financial aid was important or extremely important in their decision to attend ASU. Allen (3/9/95) 105.

370. Some HBIs have difficulty attracting white students because they aggressively and outspokenly maintain their black heritage in a manner that discourages whites from attending. Jordan (3/8/95) 22,; Leslie (3/1/95) 69-70; Leslie (11/1/90) 382; Kaiser (11/6/90) 150-51; Conrad (12/18/90) 342; 85 AUX 8383, pp. 41-43;

see

Knight (2/15/95) 23.

371. Unfortunately, ASU and AAMU currently labor under such a difficulty, ASU more so than AAMU. Knight (2/16/95) 50-51;

compare

95 ASUX 139

with

95 ASUX 138 (reflecting 50% decrease in white recruitment goal from 1990 to 1991);

see, supra

¶¶ 289-302. One reason for ASU’s difficulty is the phenomenal number of out of state students they accept (47% to 51% or the 1994 freshmen class): ability to recruit nationally reduces the incentive to recruit locally and most of ASU’s out of state students are black.

See

Hossler (2/15/95) 79-81; Smither-man (2/15/95) 5/6; 95 UASX 257. Many students at AAMU indicated that the single most important factor influencing their choice of AAMU was the fact that its student body was predominantly black. 95 UASX 244, pp. 37-38; 95 UASX 493, p. 3.

A Critical Mass

— the

Causation-Remedy Link

372. Other-race scholarships have worked well in attracting black students to the PWIs, and they are important to HBIs in reaching the stage of a self-perpetuating “critical

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mass” of white students. Allen (3/9/95) 78; Blackwéll (2/16/95) 31-32.

373. Increasing the number of white students is important to attaining an atmosphere in which white students will feel comfortable. Hossler (2/15/95) 94-95; Steptoe (3/7/95) 56-59; Smithson (3/14/95) 15-25; Ca-ruthers (3/15/95) 32-33.

374. White students’ perceptions of the inferiority of black institutions are traceable to the

de jure

history of Alabama. Allen (3/9/95) 29-30.

375. White students perceptions flow from the fact of the HBI’s academic inferiority resulting from historical underfunding. The

evidence in this case

demonstrates that the perceptions will not be overcome — i.e. the barrier to freely-exercised student choice removed — until there is a critical mass of other-race students on campus.

376. Added to these perceptions of inferiority, is the fact of the state created, better funded, proximate institutions, which make it more difficult to overcome those perceptions.

377. The evidence demonstrates that other-race scholarships are the most educationally sound and practicable mechanism to eliminate those particular perceptive barriers — clearly more so than closing HBIs or proximate institutions. The Court is using these scholarships to solve that portion of perception racism that prevents some white students from attending HBIs, and the Court is not attempting to eradicate all racism, black and white, in Alabama; that is, the Court is eliminating a vestige within its remedial authority, not attempting to fix a societal ill beyond the pale.

378. The Court also notes that it will annually review the effectiveness, as well as the efficacy, of the scholarships in achieving desegregation, and determine whether they should cease or continue.

379. The evidence in this ease directly links the use of other-race scholarships to eliminating the perceptions of inferiority, resulting from the historical underfunding, the placement of proximate institutions, and the problems created by the HBIs, themselves, discussed above.

380. Because a major problem HBIs have is a

perception,

deserved or not, of inferiority, increasing the number of white students at an HBI helps eliminate that perception. Allen (3/9/95) 60-61, 73. The Court hastens to add that the presence of white students is not necessary to

make

an HBI a quality institution, but aids in correcting student— not societal — misperceptions.

See

Jordan (3/8/95) 45.

Cf. Missouri v. Jenkins,

— U.S. -, -, 115 S.Ct. 2038, 2061-62 (1995) (Thomas, J., concurring).

381. Contrary to Justice Thomas’ complaints regarding Judge Clark in

Missouri v. Jenkins,

in this case, the perception of inferiority is not a guess or a bias but a reality born out by the evidence.

Advertising

382. Negative image is one of the greatest problems facing HBIs. Allen (3/9/95) 22, 26; Hossler (2/15/95) 141; Leslie (3/1/95) 72-73.

383. An institution’s determination to maintain its image as a predominantly black institution can affect its attractiveness to white students, thereby influencing student choice. Leslie (11/1/90) 382; Kaiser (11/6/90) 150-51; Conrad (12/18/90) 342; 85 AU Ex. 8383, pp. 41-43.

384. An analysis of the desegregation trends of those HBIs which have been relatively successful in attracting white students indicate that the desegregation process occurs gradually and over long periods of time. However, there are examples, such as those at Fayetteville and Elizabeth City in North Carolina, in which HBIs were able to desegregate relatively quickly based upon their ability to change their images in the student market place fairly quickly. 95 UASX 244, pp. 14-15.

385. To attract white students ASU and AAMU must mount an effective public information campaign, emphasizing equal opportunity policies; publicizing the well-rounded education offered to all students; making themselves attractive, accessible and desirable to students of any race; and cultivating a positive image as a welcoming multi-race institution. CTX 4, p. 11; Trendler

(2/9/95)

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64-66; Conrad (2/28/95) 12, 28; Leslie (2/28/95) 117.

386. An effective and truthful advertising strategy can help ameliorate ASU’s and AAMU’s image of inferiority. 95 USX 9, pp. 35-37, 58; 95 USX 5, p. 8; Leslie (3/1/95) 117.

387. Demonstrating the power of advertising, TSUM has been extremely effective in attracting students in its niche. TSUM receives one of the lowest appropriations in the state — a little more than three million dollars in 1993-94 and 4.27 million dollars in 1994r-95 — and spends a relatively significant amount on advertising — an average of $86,-000 per year from 1990 to 1993, $144,000 in 1993-94, and $165,000 budgeted for 1994-95.

388. Even minimal, narrowly focused advertising can attract white students to HBIs, as demonstrated by the fact that 67 new students enrolled at ASU for Spring 1995, a number apparently achieved by an article in the

Montgomery Advertiser

about scholarships available for white students. 95 ASU Ex. 48, 147.

389. The Court concludes that ASU and AAMU should expend monies

already allocated

for Desegregation Planning (or some portion of the funds in their base appropriation) for advertising. These advertising monies should be targeted to attract other-race students. This money is to be spent on advertising,

not Public Relations consultants. ■

The Court notes that AAMU already does some advertising, and that ASU intends to budget for advertising this year. Capíes (3/1/95) 21-22; Steptoe (3/7/95) 99-100.

Closing or Merging TSUM

390. The Court concludes that it would be neither educationally sound nor practicable to close TSUM or merge TSUM with ASU, given TSUM’s great productivity with limited resources.

391. The Court also concludes that merging TSUM into ASU would do nothing to further the cause of desegregation for the following reason: If the Court transferred the immensely successful TSUM program serving non-traditional student to ASU, when the testimony overwhelmingly demonstrates that a rising number of such students are not being served, the Court concludes that it would send the message that ASU was incapable of competing for such students, which in turn would hurt rather than help their image. Alexander (2/8/95) 25.

392. The Court also finds no compelling evidence that closing or merging TSUM would increase other-race presence at ASU. Faulkner University in Montgomery specializes in non-traditional students. McGaha (2/8/95) 33-34. Faulkner intends to benefit from any TSUM decreases. McGaha (2/8/95) 34. The Court concludes, based on the evidence regarding Faulkner and other private institutions, and the experience after the TSUM/United States Consent Decree that Faulkner or other private institutions would benefit rather than ASU.

393. ASU recently hired a director of continuing education, and ASU’s academic leadership stated under oath that they intend to emphasize attracting non-traditional students. Steptoe (3/7/95) 94-95, 115, 130; Smithson (3/14/95) 14. Mr. Smithson, ASU’s minority recruiter testified to methods he used to recruit non-traditional students, and did not testify that he had been unsuccessful. Smithson (3/14/95) 14-17. The Court concludes that the competition from TSUM will insure that ASU maintains the commitment to which its leaders testified. Siskin (2/14/95) 120-21; Hossler (2/15/95) 189; Leslie (3/1/95) 120.

394. Moreover, the Court concludes that within a few years, technology will make it impossible to protect a school from competition. 95 CTX 1, p. 40-42; Hossler (2/15/95) 115-17; Wagner

29

(2/8/95)

in passim.

395. The Court also concludes that it would not be educationally sound to make ASU responsible for the complicated programming at TSUM at the same time it is attempting to design and implement the Court’s remedial decree. Fleming (2/22/95) 134; McGaha (2/8/95) 75-76, 111-12.

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396. Mr. Knight testified that the Plaintiffs did not propose a merger of ASU and TSUM until they learned of the $7.3 million paid to TSUM. He further testified that they were not particularly interested in TSUM’s other downtown property, but just the money. Knight (2/15/95) 58-59. The Plaintiffs changed their proposal because of fear that TSUM would build a new budding, greatly expanding its capabilities. Knight

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