# Ayers v. Allain

> Court of Appeals for the Fifth Circuit · February 6, 1990 · 893 F.2d 732

URL: https://www.frixlaw.com/law-library/cases/8976530

## Case

- **Full name:** Jake AYERS, Sr., Jake Ayers, Jr., Bennie G. Thompson, Leola Blackmon, Lillie Blackmon, Louis Armstrong, Darryl C. Thomas and Leon Johnson, and United States of America, Intervenor-Appellant v. William ALLAIN, Governor, State of Mississippi
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** February 6, 1990
- **Citations:** 893 F.2d 732; 1990 WL 3290
- **Precedential status:** Published
- **Opinion:** Dissent by Duhé
- **Judges:** Duhé, Goldberg, Johnson
- **Cited by:** 38 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Ayers v. Allain, 914 F.2d 676 (1990).
- Negative treatments: 3
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8976530

## How later opinions describe it (automated extraction)

- holding that retroactive application of a statute that clarifies a Supreme Court decision, such as the Restoration Act, is appropriate

## Opinion text

DUHÉ, Circuit Judge,
Dissenting:
Despite the well-crafted reasoning and artful prose employed by the majority, I find myself in basic disagreement.
In my view, our decision is controlled by the clear teaching of the Supreme Court in Bazemore v. Friday, 478 U.S. 385 , 106 S.Ct. 3000 , 92 L.Ed.2d 315 (1986), and Alabama State Teachers’ Association v. Alabama Public School and College Authority, 289 F.Supp. 784 (M.D.Ala.1968), aff'd *757 per curiam, 393 U.S. 400 , 89 S.Ct. 681 , 21 L.Ed.2d 631 (1969). These cases teach that, where attendance choices are voluntarily made, our Constitution requires that a state discontinue prior discriminatory practices and adopt wholly race-neutral criteria for making the decisions necessary to administer and operate the system. The majority, relying on district and other circuit court decisions, has categorically rejected that teaching and imposed upon the state the same constitutional duty required for primary and secondary education where freedom of choice is unavailable and services are free of charge. In so doing it takes a liberty that is simply not available to courts of appeals.
The majority has ably distilled the essence of Brown I and II, concluding that “[Constitutional doctrine must commandeer a social mission to eradicate the stigma conveyed through racial separation by law.” At 749. Yet if the social mission itself is not at issue in this case, the reach of that mission most certainly is. Under current law the mission to eliminate all vestiges of de jure discrimination “root and branch” does not reach the university. If it is contrary to Brown to assume that black students possess the same freedom to choose as white students, as the majority states, a court of appeals is not thereby entitled to circumvent a contrary decision of the Supreme Court which flatly and squarely relies on a student’s freedom to choose. Moreover, the majority seeks to extend Green on the very basis — freedom to choose — that the Bazemore Court declined to extend it. Bazemore simply cannot be distinguished on the basis that the record in this case is “replete with the disease [of discrimination];” such analysis merely puts the evidence ahead of the standard.
Until the Supreme Court teaches otherwise we are bound by its existing pronouncements. The reasons why the rule of Bazemore and Alabama is appropriate in the higher education setting where one has freedom of choice and must bear the cost of that choice are fully explored in those opinions so are not repeated here. I fully subscribe to those reasons. I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8976530. Public record. Not legal advice.