Opposition Brief — Board of Trustees of Alabama State University v. Auburn University

Supreme Court, U.S.

FILED

MAR 21 1988

1H F. SPANIOL,

‘ : CLERK

P

No. 87-1200

IN THE

Supreme Court Of Che United States

October Term, 1987

BOARD OF TRUSTEES OF ALABAMA STATE

UNIVERSITY; BOARD OF TRUSTEES OF ALABAMA

A&M UNIVERSITY; JOHN KNIGHT, et al.; and

NORMALITE ASSOCIATION, et al.,

Petitioners

Vv.

AUBURN UNIVERSITY; BOARD OF TRUSTEES FOR

THE UNIVERSITY OF ALABAMA; TROY STATE

UNIVERSITY; ALABAMA STATE BOARD OF

EDUCATION; STATE OF ALABAMA, et al.,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION SUBMITTED BY

RESPONDENT, TROY STATE UNIVERSITY

WILLIAM FRANKLIN Murray, JR.*

3000 SouthTrust Tower

Birmingham, Alabama 35203

(205) 251-3000

Counsel for Respondent,

Troy State University

OF COUNSEL:

BURR & FORMAN

3000 SouthTrust Tower

Birmingham, Alabama 35203

(205) 251-3000

*Counsel of Record

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QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that disquali-

fication of the trial judge was mandated by the fact that, as a

private attorney and state senator, the trial judge had partici-

pated in and contributed to the events at issue in the litigation

and had involved himself in the disputed evidentiary facts in-

volved in the case.

2. Whether the court of appeals correctly held that state

universities have no substantive rights and, therefore, no stand-

ing to assert claims under the Fourteenth Amendment to the

Constitution of the United States or Title VI of the Civil

Rights Act of 1964, 42 U.S.C. § 2000d, et seqg., against other

state universities or state instrumentalities.

The petitioners also seek to raise, “conditionally,” the follow-

ing issue:

3. Whether the court of appeals correctly held that the dis-

trict court Opinion was an appealable final order where, even

though the district court had ordered that a remedial plan be

submitted for adoption, the opinion determined each issue in

detail and left a minimum of flexibility in fashioning a reme-

dial plan.

ii

PARTIES

The petitioners in this Court are shown in the caption.

Among the petitioners, only John Knight and the class of in-

dividual intervenors were appellees in the court of appeals.

Both Alabama State University and Alabama A&M University,

petitioners in this Court, were denominated as amicus curiae

in the court of appeals. The Normalite Association, a peti-_

tioner in these proceedings, was allowed limited intervention

in the district court and did not participate in the proceedings

before the court of appeals. The remaining appellee in the

court of appeals, the United States of America, has not sought

review of the decision of the court of appeals by petition for a

writ of certiorari in this Court.

The respondents in this Court, in addition to Troy State

University, are Auburn Unitersity, the Board of Trustees for

the University of Alabama, the Alabama State Board of FEduca-

tion, the State of Alabama, the Governor of the State of Ala-

bama, the State Superintendent of Education, the Alabama

Public School and College Authority, and the Alabama Com-

mission on Higher Fducation. Fach respondent was an appel-

lant in the court of appeals and a defendant in the district

court.

In addition, the remaining public institutions of higher edu-

cation in Alabama were defendants in the district court, but

were not parties to the proceedings in the court of appeals and

are not respondents in this Court. These public institutions

are Jacksonville State University, the University of North Ala-

bama, the University of South Alabama, Livingston University,

and the University of Montevallo.

iii

INFORMATION REQUIRED BY RULE 28.1

Troy State University, respondent herein, is a public corpo-

ration created pursuant to Alabama Code, 1975, §§ 16-56-1

through 16-56-15. As a public corporation, Troy State Univer-

sity has no subsidiaries and is the subsidiary of no other cor-

poration.

iV

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES

INFORMATION REQUIRED BY RULE 28.1

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

STATEMENT OF THE CASI

SUMMARY OF THE ARGUMENT

ARGUMENT

lI THE TRIAL JUDGE WAS PROPERLY)

DISQUALIFIED

Il. THRE COURT OF APPEALS CORRECTLY

DETERMINED THAT ALABAMA STATE

UNIVERSITY AND ALABAMA AX&M

UNIVERSITY LACKED STANDING

(1) Alabama State and Alabama AXM Have

No Substantive Rights and, Therefore,

No Standing Under the Fourteenth

Amendment or Title VI.

nO |

Standing to Assert the Rights of

Their Students or Faculty.

(3) Alabama State and Alabama A&M Are

Foreclosed From Asserting the Rights

of Their Students or Faculty For

the First Time on Appeal.

Il. THRE COURT OF APPEALS CORRECTLY

DETERMINED THAT THE DISTRICT

COURT ORDER WAS FINAL AND

APPFALABLE

CONCLUSION

» Alabama State and Alabama AX®M Lack

14

16

Vv

TABLE OF AUTHORITIES

Cases: Page

Akron Board of Education v. State Board of

Education, 490 F.2d 1285 (6th Cir.) , cert.

denied, 417 U.S. 932 (1974) PAID DLS SOLER FY,

Appling County v. Municipal Electric Authority

of Georgia, 621 F.2d 1301 (5th Cir. 1980) me.

Aguayo v. Richardson, 473 F.2d 1090 (2d Cir. 1973) _ 9, 10,

Bender v. Williamsport Area School District,

475 U.S. 534 (1986)

Board of Education v. Allen, 392 U.S. 236 (1968) (mie

Brewer v. Hoxie School District No. 46, 238

F.2d 91 (8th Cir. 1956) ; 7, 88s Oe

Brown Shoe Company, Inc. v. United States,

370 U.S. 294 (1962)

Buda v. Saxbe, 406 F. Supp. 399 (E.D. Tenn. 1975)

City of New York v. Richardson, 473 F.2d

923 (2nd Cir. 1973)

City of South Lake Tahoe v. California Tahoe

Regional Planning Agency, 625 F.2d 231

(9th Cir. 1980) Q,

City of South Portland v. State, 476 A.2d 690

(Me. 1984)

City of Trenton v. New Jersey, 262 U.S. 182 (1923) q,

Coleman v. Miller, 307 U.S. 433 (1939) 9,

Columbus & G. Ry. Co. v. Miller,

283 U.S. 96 (1930)

Commonwealth of Penns,lvania v. Porter, 659

F.2d 306, 327 n.3 (3rd Cir. 1981)

Hunter v. City of Pittsburgh, 207 U.S. 161 (1907)

Mahaley v. Cuyahoga Metropolitan Housing

Authority, 500 F.2d 1087 (6th Cir. 1974) ,

cert. denied, 419 U.S. 1108 (1975)

vi

PABLE OF AUTHORITIES — (Continued)

Cases:

Monell v. New York City Department of Social

Services, 436 U.S. 658, 690) (1977)

Morales v. Turman, 535 F.2d 864 (Sth Cir. 1976)

Papasan v. Allain, 106 S.Ct. 2982 (1986)

Randolph County v. Alabama Power Company,

784 F.2d 1067 (Lith Cir. 1986)

Rogers v. Brockette, 588 F.2d 1057, 1065 (5th

Cir.) . cert. dented, 444 U.S. 827 (1979)

Regents of the University of California v.

Bakke, 438 U.S. 265 (1978)

Seattle School District No. 1 v. State, 473 F. Supp.

996 (W.D. Wash. 1979), aff'd in part, rev'd

in part, O33 F.2d 1338 (9th Cir, L980) .

aff'd, AOS U.S. 457 (1982)

School Board of the City of Richmond v.

Baliles, 820 F.2d 1308) (4th Cir. 1987)

School District of Kansas City v. State of Missouri,

160 F. Supp. 421 (W.D. Mo. 1978)

Singleton v. Wulff, 428 U.S. 106 (1976)

South Macomb Disposal Authority v. Township

of Washington, 790 F.2d 500 (6th Cir. 1986)

Thomas v. Board of Trustees, 195 U.S. 207 (1904)

Thoms vc. Hetternan, 473 F.2d 478 (2d Cir. 1973)

racatéd on other grounds, 118 U.S. GOS (1974

Priplett v. Tiemann, 302 iF Supp. 1239

D.C. Neb. 1969)

Doustees of Dartmouth College v. Woodward,

17 US. (4 Wheat.) 318 (IS19)

l nifed Slates wv. dlabama, XYS if 2d 1532

Lith Car. 1987)

lnaited States v. Alabama, 791 F.2d 1450 (L1th

Cir. 1986). cert. denied, US. ; 107

S. Ct. 1287, 94 LL. Ed.2d 144 (1987)

Page

10,

10

vil

TABLE OF AUTHORITIFS — (Continued)

Cases:

United States v. State of Alabama, 628 F. Supp.

1187 (NAD Ala. 1985)

Warth v. Seldin, 122 US. 490 (1975)

Washinuton v. Seattle School District No. 7,

198 US. 457 (1982)

Walliams o. Mayor and Caty Conunel of Baltimore,

PRO US. 460 (1953)

Niatules

ANrticle TIT. Section 2. Clause bl. Constitution

ol the United States of America

Article VIL Clause 2. Constitution of the

United States of \merica

Amendment NIV. Section |. Constitution of the

United States of \merica

°S USC. S 14

= 4/94. & 0291

2 U'.S.C.. § 1983

i USC. § 2000d

Other Catations:

Rule 17. Rules of the Supreme Court

ol the United States

Page

~

No. 87-1200

IN THE

Supreme Court Of The United States

October Term, 1987

BOARD OF TRUSTEES OF ALABAMA STATE

UNIVERSITY; BOARD OF TRUSTEES OF ALABAMA

A&M UNIVERSITY; JOHN KNIGHT, et al.; and

NORMALITE ASSOCIATION, et ail.,

Petitioners

v.

AUBURN UNIVERSITY; BOARD OF TRUSTEES FOR

THE UNIVERSITY OF ALABAMA; TROY STATE

UNIVERSITY; ALABAMA STATE BOARD OF

EDUCATION: STATE OF ALABAMA, ct ai..

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THRE FLEVENTH CIRCUTT

BRIEF IN OPPOSITION SUBMITTED BY

RESPONDENT, TROY STATE UNIVERSITY

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Certain constitutional provisions involved in this case, Arti-

cle VI, Clause 2 of the Constitution of the United States and

Amendment XIV, Section | of the Constitution of the United

States, and certain statutes involved in this case, 28 U.S.C. § 455,

are reprinted in the appendix filed with the Petition for Writ

of Certiorari in this case. The following constitutional and

statutory provisions are also involved in this case:

Article III, Section 2, Clause 1, Constitution of the United

States:

The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the

United States, and the Treaties made, or which shall be

made, under their Authority; — to all Cases affecting Am-

bassadors, other public Ministers and Consuls; — to all

Cases of admiralty and maritime Jurisdiction; — to Con-

troversies between two or more States; — between a State

and Citizens of another State; — between Citizens of dif-

ferent States; — between Citizens of the same State claim-

ing Lands under Grants of different States, and between

a State. or the Citizens thereof, and foreign States, Citizens

or Subjects.

42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding

for redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of Colum-

bia shall be considered to be a statute of the District of

Columbia.

42 U.S.C. § 2000d:

No person in the United States shall, on the ground of

race, color, or national origin, be excluded from participa-

tion in, be denied the benefits of, or be subjected to dis-

crimination under any program or activity receiving Fed-

eral financial assistance.

28 U.S.C. § 1291:

The courts of appeals (other than the United States Court

of Appeals for the Federal Circuit) shall have jurisdiction

of appeals from all final decisions of the district courts of

the United States, the United States District Court for the

District of the Canal Zone, the District Court of Guam,

3

and the District Court of the Virgin Islands, except where

a direct review may be had in the Supreme Court. The

jurisdiction of the United States Court of Appeals for the

Federal Circuit shall be limited to the jurisdiction de-

scribed in sections 1292 (c) and (d) and 1295 of this title.

STATEMENT OF THE CASE

This action was filed by the United States on July 11, 1983

in the United States District Court for the Northern District

of Alabama, naming as defendants the State of Alabama, its

Governor, the Superintendent of Education, the State Board

of Education, the Alabama Commission on Higher Education,

the Alabama Public School and College Authority, and ten

public colleges and universities (App. A). The complaint al-

leged violations of Title VI of the Civil Rights Act of 1964

and the Fourteenth Amendment, specifically that, prior to

1953, the State had established and maintained racial segrega-

tion in its public institutions of higher education and that,

since 1953, the State had failed to eliminate the vestiges of the

dual system by perpetuating discrimination in student enroll-

ment, appointment of boards of trustees, faculty and staff hir-

ing, and allocation of financial and other resources. The com-

plaint further alleged that the proximity of Alabama State

University to both Auburn University in| Montgomery and

Troy State University in Montgomery impeded the ability of

Alabama State, an historically black institution, to desegregate.!

The United States sought development of a remedial plan to

eliminate the alleged vestiges of the former dual system. The

case was assigned to United States District Judge U. W. Clemon.

Within weeks after the action was filed, both Alabama State

and Alabama AXM, named as defendants in the complaint,

moved for realignment as plaintiffs and for permission to assert

claims against the other public institutions of higher education

and state instrumentalities in the case (App. B, C). The claims

'The complaint also alleged that the proximity of Alabama A&M Uni-

versity to the University of Alabama in Huntsville impeded the ability of

Alabama A&M, likewise an historically black institution, to desegregate.

4

of the realigned plaintiffs, as variously amended, were brought

under 42 U.S.C. § 1983 and were predicated on substantive

rights under the Fourteenth Amendment and Title VI. Ala-

bama State maintained that the purpose of realignment, in ac-

cordance with the resolution of its board of trustees Incorpo-

rated in its motion seeking realignment, was to preserve “the

seniority of Alabama State University as an autonomous, full-

service senior institution in the Montgomery area... .” (App.

B). The relief sought was the merger of both Auburn Univer-

sity in Montgomery and Troy State University in Montgomery

into Alabama State or, short of merger, a demand for increased

funding and the transfer of programs and other resources from

the other proximate public institutions to Alabama State

(App. B) 2

Immediately following the realignment of Alabama State and

Alabama A&M, John F. Knight, Jr., and other individuals de-

scribed as students, graduates, faculty, and employees of Ala-

bama State, sought intervention as plaintifis in the action.

The Knight plaintiffs asserted claims essentially identicalto the

claims asserted by Alabama State and sought the same relief —

merger of the Montgomery branches of Auburn and Troy State

into Alabama State. The district court permitted the Knight

plaintiffs to intervene and certified them as representatives of

a plaintiff class.°

Shortly before the Knight plaintiffs moved to intervene, Au-

burn and the State Superintendent of Education each tiled

similar motions seeking that Judge Clemon be disqualified un-

2Alabama A&M also sought, variously, enhancement of funding and the

transfer of programs and functions from other public institutions or state

instrumentalities to Alabama A&M.

3The class included graduates of Alabama State, black adults or minor

children in Alabama presently attending, or eligible to attend, any public

institution of higher education in the Montgomery area, and black citi-

zens who were, are, or will become eligible to be employed by such insti-

tutions. The action brought by the Knight plaintiffs had originally been

filed in the Middle District of Alabama. Intervention in this action was

sought on the basis that the outcome in this case would be determinative

of the issues in the suit as originally filed.

der 28 U.S.C. S§ 144 and 145. Judge Clemon denied these

motions on several grounds, including the tailure to satisfy

certain technical requirements of 28 U.S.C. § 144. On petition

for mandamus filed by Auburn in the court of appeals, the

court determined that the technical requirements had been

satisfied by a subsequent filing and directed that another judge

be assigned to determine the recusal issue. Jn Re Auburn Unt-

versity, No. 83-7557 (Lith Cir. Nov. 10, 1983). After the issue

was heard before a Senior District Judge — who ordered that

Judge Clemon be disqualified, but then vacated this order and

recused himself — the matter was assigned to a Senior Circuit

Judge. Following another hearing, the recusal motions were

denied and a request by Auburn that the issue be certified for

interlocutory appeal likewise was denied.

The case then proceeded in the district court before Judge

Clemon. Following extensive discovery and numerous pretrial

motions, including motions seeking dismissal of the claims as-

serted by Alabama State and Alabama A&M on the basis that

these state institutions had no standing to proceed against other

state institutions, the case was tried for most of the month of

July, 1985.

After the conclusion of the trial, but prior to rendition of

judgment by the triai court, the State Board of Education de-

termined that certain teacher education programs at Alabama

State, both undergraduate and vraduate, should not be recerti-

fied. The district court. on motion by Alabama State and the

Knight class (App. D). entered an injunction prohibiting de-

certification of these programs pending a decision on the merits

in the recently-concluded trial. The State Board of Education

pertected an appeal of the injunctive order in the court of ap-

peals, denominated Appeal No. 85-7582.

While Appeal No. 85-7582 remained pending, the district

court, on December 9, 1985, entered an order and opinion

holding that vestiges of the former dual system remained among

the public institutions of higher education and requiring that

certain of the defendants formulate remedial plans. United

States v. State of Alabama, 628 F. Supp. 1137 (N.D. Ala. 1985) .

6

Auburn, Troy State, and the University of Alabama sought re-

view in the court of appeals of this finding of ability, in Ap-

peal No. 86-7090. Following denial of a stay in the district

court, motions seeking a stay were filed in the court of appeals,

which were granted. Alabama State, Alabama A&M, and the

Knight class then sought dissolution of the stays and dismissal

of the appeals in the court of appeals. Following denial of these

motions in the court of appeals, Alabama State, Alabama AXM,

and the Knight class sought to have the stays dissolved and the

appeals dismissed by petition for a writ of certiorari in this

Court, in Case No, 85-1878. After denial of these petitions,

dissolution of the stays and dismissal of the appeals were again

sought by application to Justice Powell. This application was

likewise denied.

While Appeal No. 86-7090 trom the district court order in

the principal case remained pending, the court of appeals en-

tered its opinion in Appeal No. 85-7582, the appeal by the

State Board of Education of the injunction by which the dis-

trict court had required the Board to certify the teacher educa-

tion programs at Alabama State. The court of appeals, while

affirming the injunction in favor of the Knight plaintiffs, re-

versed the injunction in favor of Alabama State on the basis

that a state university had no substantive rights and, theretore,

no standing to assert claims under the Fourteenth Amendment

or Tithe Vi against other state instrumentalities. United States

v. Alabama, 791 F.2d 1450 (11th Cir. 1986) (App. FE). Ala-

bama State unsuccessfully sought review of this decision by peti-

tion for a writ of certiorari in this Court, in Case No. 86-749.

On October 6, 1987, the court of appeals entered its decision

in Appeal No. 86-7090, reversing the order and opinion of the

district court and remanding for a new trial. United States v.

Alabama, 828 F.2d 1532 (11th Cir. 1987). The court of ap-

peals held, inter alia, that the district judge should have been

disqualified and, by reference to its holding in the State Board

of Education injunctive appeal, that Alabama State and Ala-

bama A&M had no substantive rights and, therefore, no stand-

ing to assert claims under the Fourteenth Amendment or Title

VI against other state universities or state instrumentalities.

This petitton followed.

SUMMARY OF THE ARGUMENT

There is no substantial or direct conflict between the deci-

sion of the court of appeals in this case and the decisions either

of this Court or other federal courts of appeal, or other special

or Important reasons, justifying review on certiorari. The trial

judge was properly disqualified, in a timely manner, on the

basis of his prior participation in events at issue in the litiga-

tion and his involvement in the disputed evidentiary facts in

this case. The decision of the court of appeals that Alabama

State and Alabama A&M, both state instrumentalities, have no

substantive rights under the Fourteenth Amendment or Title

VI and, therefore, no standing to assert claims against other

state instrumentalities, was clearly correct. Decisions which

have permitted members of local school boards to sue on behalf

of their students or faculty, when board members are faced

with a contlict between constitutional duty and state law, have

no bearing on this case. The petitioners, moreover, asserted

only institutional interests in this litigation, failed to assert

jus terti standing in the trial court, and may not raise the issue

of jus tertit standing for the first time on appeal. Finally, the

order of the district court was clearly final and appealable.

ARGUMENT

The petitioners have failed to show that this case involves

any “special and important” reasons for the issuance of a writ

of certiorari. Sup. Ct. Rule 17. The opinion rendered by the

court of appeals is legally sound and is not in conflict with any

decision of another federal court of appeals or with any deci-

sion of this Court. Sup. Ct. Rule 17. The opinion entered by

the court of appeals simply does not present any issues warrant-

ing consideration by this Court on certiorari.

8

I. The Trial Judge Was Preperly Disqualified.

The court of appeals correctly held that disqualification of

the trial judge was mandated by the fact that, as a private at-

torney and state senator, the trial judge had participated in and

contributed to the events at issue in the litigation and had in-

volved himself in the disputed evidentiary tacts involved in the

case. The respondent, Troy State University, adopts by refer-

ence the argument of the respondent, Auburn University, on

the issue of recusal of the district judge.

II. The Court Of Appeals Correctly Determined That

Alabama State University And Alabama A&M Uni-

versity Lacked Standing.

(1) Alabama State and Alabama A&M Have No Substan

tive Rights and, Therefore, No Standing Under the

Fourteenth Amendment or Title VI.

The petitioners seek to have this Court review the determi-

nation of the court of appeals that Alabama State and Alabama

A&M, as state institutions, have no substantive rights under the

Fourteenth Amendment or Title VI which they have standing

to assert against other state institutions. United States v. Ala-

bama, 828 F.2d 1532 (11th Cir. 1987). This marks the second

time that petitioners have sought review on certiorari of this

same holding. In an earlier appeal in this same case, United

States v. Alabama, 791 F.2d 1450 (11th Cir. 1986) , cert. denied,

US. , 107 S. Ct. 1287, 94 L. Ed.2d 144 (1987), the

court of appeals determined that a state institution may not

raise a Fourteenth Amendment claim against another state en-

tity under Section 1983 or assert such a claim under Title VI.

This holding constituted the law of the case and was extended

to the claims of Alabama State and Alabama A&M in the sub-

sequent appeal. 828 F.2d at 1535, n.l. The petitioners seek

to have this issue, on which certiorari was previously denied in

Case No. 86-749, reviewed once again.

The decision of the court of appeals is entirely consistent

with a long line of decisions of this Court, commencing with

)

Trustees of Dartmouth College v. Woodward, 17 U.S. (4

Wheat.) 518 (1819), in which it was held that “the framers of

the Constitution did not intend to restrain the states in the

regulation of their civil institutions, adopted for internal gov.

ernment... 2° 17 U.S. at 629. From this, there developed a

series of decisions holding, generally, that state-created institu-

tions have no standing to invo!.e substantive rights under cer-

tain Constitutional provisions in opposition to the state or other

state-created agencies or institutions. Coleman v. Miller, 307

U.S. 433 (1939) ; Williams v. Mayor and City Council of Balti-

more, 239 U.S. 36 (1933); City of Trenton v. New Jersey, 262

U.S. 182. (1923); Hunter v. City of Pittsburgh, 207 U.S. 161

(1907). The reason for this rule is that litigation between

state agencies “amounts to a suit by the state against itself,”

Rogers v. Brockette, 588 F.2d 1057, 1065 (5th Cir.), cert.

denied, 444 U.S. 827 (1979), and an attack upon the “internal

organization of the state’s political structure,” an act constitu-

tionally prohibited. Dartmouth College, supra. Based on these

principles, the courts have generally held that “public entities

which are political subdivisions of states do not possess consti-

tutional rights... in the same sense as private corporations or

individuals. Such entities are creatures of the state, and possess

no rights, privileges or immunities independent of those ex-

pressly conferred upon them by the state.” Appling County v.

Municipal Electric Authority of Georgia, 621 F.2d 1301, 1307

(5th Cir, L980) ; see also, Randolph County v. Alabama Power

Company, 784 F.2d 1067 (11th Cir. 1986) : City of South Lake

Tahoe v. California Tahoe Regional Planning Agency, 625

F.2d 231 (9th Cir. 1980) : City of New York v. Richardson, 473

F.2d 923 (2nd Cir. 1973): Triplett v. Tiemann, 302 F. Supp.

1239 (D.C. Neb. 1969) .

In this case, the court of appeals correctly determined that

these decisions, rather than creating a per se rule that a state

entity never has standing to raise constitutional claims, instead

are “substantive interpretations of the constitutional provisions

involved... .° 791 F.2d at 1455, quoting Rogers v. Brockette,

588 F.2d 1057, O68 (Sth Cir. 1979) , cert. denied, 444 U.S. 827

10

(1979). Clearly, as the court of appeals correctly determined,

neither Alabama State nor Alabama AXM, as state institutions,

possess substantive rights under the Fourteenth Amendment

which they have standing to assert against other state institu-

tions under Section 1983. This Court has repeatedly held that,

substantively, state instrumentalities lack standing to assert

Fourteenth Amendment rights against the state or other state

instrumentalities. Coleman, supra, at 441; Williams, supra, at

40. As stated in City of Trenton, supra, “in none of these cases

was any power, right. or property of a city or other political

subdivision held to be protected by the Contract Clause or the

Fourteenth Amendment. This Court has never held that these

subdivisions may invoke such restraints upon the power of the

state.” 262 U.S. at 188. Accord, Randolph County, supra, at

1072: City of South Lake Tahoe, supra, at 233; Richardson,

supra, at 929.

The court of appeals likewise rejected, correctly, the facile

suggestion that, because a political subdivision may be a “per-

son” who may be subject to suit under Section 1983, Monell v.

New York City Department of Social Services, 436 U.S. 658,

690 (1977), political subdivisions should also be considered

“persons” for purposes of bringing an action under Section

1983. As stated in Commonwealth of Pennsylvania v. Porter,

659 F.2d 306, 327 n.3 (3rd Cir. 1981) :

States were never deemed to fall within the class of those

for whom Congress created a remedy when it enacted Sec-

tion 1983. ... Allowing a state to bring suit, against its

own instrumentalities and against its own officers, for their

alleged violations, under color of state law, of federal rights

belonging to the very state which it is suing, turns the stat-

ute on its head.

Virtually every court which has considered this issue, federal

or state, has concluded that a state entity is not a “person”

which may proceed under Section 1983 against another state

actor. South Macomb Disposal Authority v. Township of

Washington, 790 F.2d 500 (6th Cir. 1986); Appling County v.

Municipal Electric Authority of Georgia, 621 F.2d 1301 (5th

1]

Cir. 1980): Buda v. Saxbe, 406 F. Supp. 399 (E.D. Tenn.

1975); City of South Portland v. State, 476 A.2d 690 (Me.

1984) .

Moreover, although petitioners have not expressly raised the

issue, state entities clearly lack standing to assert substantive

rights under Title VI for much the same reasons. Title VI

provides, generally, that “no person” in the United States shall

be denied the benefits of any federally-assisted program or ac-

tivity on a racial basis. There is simply nothing in Title VI or

its legislative history which suggests that Congress included

state instrumentalities among the “persons’’ with substantive

rights under this statute. See also, Regents of the University of

California v. Bakke, 438 U.S. 265, 287 (1978) , where this Court

held that Tithe VI proscribes “only those raciai classifications

that would violate the Equal Protection Clause... .”’

The decision of the court of appeals is sound and does not

contlict with the decisions of this Court or of other courts of

appeal. The result which the petitioners seek would assuredly

lead to continuous and expensive litigation among state agen-

cies, overriding legitimate state governmental decisions and

conflicting profoundly with our federal system. The result

would be government by injunction, a result which the peti-

tioners may find politically desirable, but one which is plainly

prohibited by the Constitution.

(2) Alabama State and Alabama AX®M Lack Standing to

Assert the Rights of Their Students or Faculty.

The petitioners seek to predicate standing to assert claims

under Section 1983 and Title VI on a series of decisions, in

this Court and in various courts of appeal, which have per-

mitted local school boards to challenge state action by asserting

the rights of their students or faculty. See, e.g., Board of Edu-

cation v. Allen, 392 U.S. 236 (1968) ; Brewer v. Hoxie School

District No. 46, 238 F.2d 91 (8th Cir. 1956); Akron Board of

Education v. State Board of Education, 490 F.2d 1285 (6th

Cir.) , cert. dented, 417 UsS. 932 (1974). Unlike this case, how-

ever, the school board members in Allen, Hoxie, Akron, and

12

similar cases had each been placed in the position of either

violating state law or the constitutional rights of their students

or faculty. In this case, the members of the boards of trustees

of Alabama State and Alabama AXM have not claimed that

state actions have placed them in the dilemma of violating

either state law or the constitutional rights of thei students or

faculty. In the absence of a contlict between adherence to state

law and constitutional duty, the basis for third party standing

to assert the rights of students or faculty ts likewise lacking.

For this basic reason, as well as other related reasons, the con

flict which petitioners purport to find between the decision of

the court of appeals in this case, and decisions of this Court or

other appeals courts, does not exist.

The decisions of this Court upon which the petitioners prin-

cipally rely are readily distinguishable trom the decision in this

case. In Board of Education v. Allen, 392 U.S. 236 (1968), al-

though the issue of standing was not expressly raised, this Court

stated in dictum that the local school board members could

assert First and Fourteenth Amendment challenges to a state

statute on the basis of the conflict between their oath to up-

hold the federal constitution and their duty to comply with

state law, a conflict which could result in their expulsion from

office should they decline to follow the challenged state statute.

No such irreconcilable conflict exists in this case — the Ala-

bama State and Alabama AXM board members have never sug-

gested, nor could they suggest, that they face expulsion from

office or any other penalty if they comply with state law.

A second decision upon which petitioners rely, Washington

i. Seattle School District No. 1, 458 U.S. 457 (1982), is distin-

guishable on essentially the same basis. In Seattle School Dis-

(rict, although the issue of standing was not discussed, the local

school board members, placed in a conflict between their duty

to uphold the federal constitution and their obligation under a

state statute, were permitted to mount a constitutional chal-

lenge to the state statute. A conflict of this nature simply does

not inhere in this case. Moreover, any suggestion that Seattle

School District implicitly overruled those decisions of this

13

Court holding that state imstitutions, in themselves, have no

substantive Fourteenth Amendment rights is plainly untenable.

Among the plaintiffs who brought the successful constitutional

challenge in the Seattle School District case, there were a sub-

stantial number of individuals, including minority students

later found to be adversely affected by the state initiative meas-

ure under attack. Seattle School District No. 1 v. State, 473

F. Supp. 996, 999-1000, LOLL (W. D. Wash. 1979) , aff'd in part,

rev'd in part, 633 F.2d 1888 (Oth Cir. 1980) , aff'd, 458 U.S. 457

(1982). In Seattle School District, this Court did not consider.

and had no reason to consider, its settled line of cases holding

that state instrumentalities have no substantive rights under

the Fourteenth Amendment which they may assert against

other state instrumentalities.*

Phe attempt to find a direct or substantial conflict between

the decision in this case and the decisions by other courts of

appeal is equally unavailing. In each of the decisions on which

the petitioners rely, Brewer v. Hoxie School District No. 46,

238 F.2d 91 (8th Cir, 1956); Aguayo v. Richardson, 473 F.2d

1000 (2d Cir. 1973); Akron Board of Education v. State Board

of Education, 490 F.2d 1285 (6th Cir.) , cert. denied, 417 U.S.

932 (1974); and School Board of the City of Richmond v.

Baliles, 820 F.2d 1308 (4th Cir. 1987), the local school boards

were permitted to assert the rights of their students and faculty

on the basis that the school board members had been placed in

a position of either violating state law or the constitutional

rights of their students or faculty. These conflicting duties, as

previously noted, simply do not exist in this case. In both

Baliles and Akron, this contlict placed the board at risk of di-

rect economic injury or individual board members at risk of

personal liability, factors which do not, and could not, exist in

this case’ Moreover, in Baliles, individual plaintiffs with un-

*The petitioners also allude to Papasan v. Allain, 106 S.Ct. 2932 (1986) .

In Papasan, individual school children were parties and the issue of stand-

ing was neither raised nor decided.

®The suggestion that the Sixth Circuit decision in Akron conflicts with

the Eleventh Circuit decision in this case is further undercut by a sub-

——oOoOeeeeee

14

questioned standing had been before the trial court. Further-

more, in Hoxie, the members of the school board brought the

action against individuals and private organizations, not against

other state instrumentalities.

These factors readily distinguish this case from the cases in

other courts of appeal, and provide no reason to depart from

the rule, as stated in Columbus & G. Ry. Co. v. Miller, 283

U.S. 96, 100 (1930), that“... the protection of the Fourteenth

Amendment against state action is only for the benefit of those

who are injured through the invasions of personal or property

rights or through the discriminations which the Amendment

forbids. The constitutional guaranty does not extend to the

mere interest of an official, as such, who has not been deprived

of his property without due process of law or denied the equal

protection of the laws.” There is no substantial or direct con

flict between the decision of the court of appeals in this case

and the decisions of this Court or other courts of appeal. See,

Singleton v. Wulff, 428 U.S. 106 (1976); School District of

Kansas City v. State of Missouri, 460 F. Supp. 421 (W.D. Mo.

1978).

(3) Alabama State and Alabama A&M Are Foreclosed

From Asserting the Rights of Their Students or

Faculty For the First Time on Appeal.

Even if Alabarna State and Alabama A&M could satisfy the

conditions for invoking the third party rights of their students

or faculty, neither asserted jus tertii standing in the trial court

and both are, therefore, foreclosed from raising the issue for

the first time on appeal. Bender v. Williamsport Area School

District, 475 U.S. 534 (1986). The pleadings filed by Alabama

State and Alabama A&M assert the purely institutional rights

of each, and plainly fail to aver any basis for invoking the

sequent Sixth Circuit decision, South Macomb Disposal Authority v. Town-

ship of Washington, 790 F.2d 500 (6th Cir. 1986), in which that court

followed the settled rule in this Court that a political subdivision has no

substantive Fourteenth Amendment rights which it has standing to assert

against another state instrumentality.

)

third party rights of students or faculty (App. B, C). For

instance, the policy statement of the Alabama State Board of

Trustees incorporated in its motion for realignment plainly

discloses that Alabama State seeks to pursue purely institutional

interests, rather than the third party rights of its students or

faculty (App. B). Moreover, the evidence at trial focused en-

tirely on the institutional interests of Alabama State and Ala-

bama A&M. See, United States v. State of Alabama, 628 F. Supp.

1137, 1170 (N.D. Ala. 1985). Since standing “must be dis-

tinctly and positively averred in the pleadings or should appear

affirmatively and with equal distinctness in other parts of the

record ...", Thomas v. Board of Trustees, 195 U.S. 207, 210

(1904), both Alabama State and Alabama A&M have clearly

failed to preserve this issue for review in this Court. Warth v.

Seldin, 422 U.S. 490 (1975).

III. The Court Of Appeals Correctly Determined That

The District Court Order Was Final And Appeal-

able.

The petitioners seek to preserve for review, “conditionally,”

the issue of whether the order and opinion entered by the trial

court was final and appealable. The petitioners, once again,

seek to have this Court review an issue upon which a petition

for a writ of certiorari has previously been sought unsuccess-

fully. This Court denied certiorari on this issue in Case No.

85-1878, after which Justice Powell denied an application on

the same issue. Moreover, the decision on the merits that the

district court order was final, determining everything except

the details of implementation, was clearly correct and does not

afford a basis for review on certiorari. See, Brown Shoe Com-

pany, Inc. v. United States, 370 U.S. 294 (1962); Morales v.

Surman, 535 F.2d 864 (5th Cir. 1976) , rev'd on other grounds,

430 U.S. 322 (1977) ; Mahaley v. Cuyahoga Metropolitan Hous-

ing Authority, 500 F.2d 1087 (6th Cir. 1974) , cert. denied, 419

U.S. 1108 (1975); Thoms v. Heffernan, 473 F.2d 478 (2d Cir.

1973) , vacated on other grounds, 418 U.S. 908 (1974).

16

CONCLUSION

The decision of the court of appeals entered below is not in

conflict with any decision of another federal court of appeals

or with any decision of this Court, and does not otherwise pre-

sent any “‘special and important reason” for the issuance of a

writ of certiorari. Accordingly, the petition should be denied.

Respectfully submitted,

William Franklin Murray, Jr.

Counsel for Respondent, Troy

State University

OF COUNSEL:

BURR & FORMAN

3000 SouthTrust Tower

Birmingham, AL 35203

(205) 251-3000

APPENDIX

a eS eee eee

A-|

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

)

)

)

)

)

)

THE STATE OF ALABAMA; )

GEORGE C. WALLACE, Governor )

of the State of Alabama; THE )

ALABAMA STATE BOARD OF - )

EDUCATION: WAYNE TEAGUE, )

State Superintendent of Education; )

THE BOARD OF TRUSTEES FOR )

ALABAMA A&M UNIVERSITY, a )

public corporation, THE BOARD ©)

OF TRUSTEES FOR ALABAMA _ )

STATE UNIVERSITY, a public )

corporation; AUBURN UNIVER- |)

STETY, a public corporation; )

JACKSONVILLE STATE UNI- )

VERSITY, a public corporation; )

LIVINGSTON UNIVERSITY, a )

public corporation; TROY STATE. )

UNIVERSITY, a public corpora- )

tion; THE UNIVERSITY OF )

MON TEVALLO, a public corpora-_ )

tion; LHE BOARD OF TRUSTEES )

FOR THE UNIVERSITY OF

ALABAMA, a public corporation; _ )

THRE UNIVERSITY OF NORTH © )

ALABAMA, a public corporation; _ )

THE UNIVERSITY OF SOUTH © )

ALABAMA, a public corporation; _ )

CIVIL ACTION

NO. CV-83-C-1676-S

A-2 -

THE ALABAMA COMMISSION _ )

ON HIGHER EDUCATION; and_)

THE ALABAMA PUBLIC )

SCHOOL AND COLLEGE AU- )

THORITY, )

)

)

Defendants

COMPLAINT

The United States of America, plainuff, alleges as follows:

1. This action is brought by the Attorney General on

behalf of the United States, pursuant to Sections 601 and 602

of the Civil Rights Act of 1962, 42 U.S.C. §§2000d and

9000d-1, and the Fourteenth Amendment to the Constitu-

tion of the United States.

2. This court has jurisdiction over this action pursuant to

42 U.S.C. §2000d-1 and 28 U.S.C. §1345.

I. DEFENDANTS

3. The defendant State of Alabama is a State of the United

States of America.

4. The defendant Honorable George C. Wallace is Gover-

nor and chief executive officer of the State of Alabama. The

Governor is ex officio a member of the Alabama State Board

of Education, of the Alabama Public School and College

Authority, and of the Board of Trustees of each Alabama

public institution of higher education. Governor Wallace

resides and has his offices in Montgomery, Alabama.

5. The defendant Alabama State Board of Education is an

agency of the State of Alabama. Its members are elected by

the people. This defendant is responsible for the operation

of all public educational institutions in Alabama, except for

those institutions which are governed by their own Boards of

Trustees. The State Board of Education is now responsible

for the operation of Athens State College, an upper-division,

two-year institution located in Athens, Alabama. Before

A-3

1975, it was responsible forthe operation of Alabama A&M

University and Alabama State University, and before 1967, it

was responsible for the operation of Jacksonville State Uni-

versity, Livingston University, Troy State University, and the

University of North Alabama. The State Board of Education

meets and has its offices in Montgomery, Alabama.

6. The defendant Wayne Teague is Superintendent of

Education for the State of Alabama, and chief executive

officer of the State Board of Education. He serves ex officio

on the Board of Trustees of each of the institutions set out in

paragraphs 9-16, below. This defendant resides and has his

offices in Montgomery, Alabama.

7. Detendant Board of Trustees for Alabama A&M Uni-

versity, a public corporation, is an educational institution of

the State of Alabama, located in Normal, Alabama.

8. Defendant Board of Trustees for Alabama State Uni-

versity, a public corporation, is an educational institution of

the State of Alabama, located in Montgomery, Alabama.

9. Defendant Auburn University, a public corporation, is

an educational institution of the State of Alabama. Its main

campus is locted in Auburn, Alabama, and it maintains a

branch campus in Montgomery, Alabama.

10. Defendant Jacksonville State University, a public cor-

poration, is an educational institution of the State of

Alabama, located in Jacksonville, Alabama.

11. Defendant Livingston University, a public corpora-

tion, is an educational institution of the State of Alabama,

located in Livingston, Alabama.

12. Defendant Troy State University, a public corpora-

tion, is an educational institution of the State of Alabama. Its

main campus is located in Troy, Alabama, and it maintains

branch campuses in Montgomery and Dothan, Alabama.

13. Defendant Board of Trustees for the University of

Alabama, a public corporation, is an educational institution

of the State of Alabama. Its main campus is located in

Tuscaloosa, Alabama, and it maintains branch campuses in

Birmingham and Huntsville, Alabama.

14. Defendant University of Montevallo, a public corpo-

ration. is an educational institution of the State of Alabama,

A-4

located in Montevallo, Alabama.

15. Defendant University of North Alabama, a public

corporation, is an educational institution of the State of

Alabama, located in Florence, Alabama.

16. Defendant University of South Alabama, a_ public

corporation, is an educational institution of the State of

Alabama, located in Mobile, Alabama.

17. Defendant Alabama Commission on Higher Educa-

tion (hereinafter ACHE) is an agency of the State of

Alabama. Its members are appointed by the Governor, the

Lieutenant Governor, and the Speaker of the House of

Representatives. It advises the Governor and the Legislature

concerning the allocation of funds to the Alabama insttu-

tions of public higher education. All such institutions are

prohibited by statute from establishing any new unit 01

program of instruction before submitting plans for such unit

or program to ACHE for review and approval. No funds

may be expended to establish any new unit or program

which has not received the Approval of ACHE. ACHE has its

offices in Montgomery, Alabama.

18. Defendant Alabama Public School and College Au-

thority (hereinafter APSCA) is a public corporation of the

State of Alabama, consisting of the Governor, the State

Superintendent of Education, and the Director of Finance of

Alabama. APSCA has statutory authority to provide for the

construction, reconstruction, alteraton and improvement of

public buildings and other facilities for public educational

purposes in Alabama, including the procurement of sites and

equipment therefor, and to anticipate by the issuance of its

bonds the receipt of revenues appropriated and pledged by

the Legislature of Alabama. APSCA has its offices in

Montgomery, Alabama.

19. Each of the institutions of higher education named in

paragraphs 7-16 of this Complaint, and the Alabama State

Board of Education, in consideration for Federal financial

assistance, have, by their agents and predecessors, agreed to

comply with Title VI of the Civil Rights Act of 1964, 42

U.S.C. §§2000d et seq., and with all requirements imposed by

A-5

or pursuant to the regulations of the Department of Educa-

tion issued pursuant to that Title, 34 C.F.R. Part 100.

20. Tithe VI of the Civil Rights Act of 1964, and the

regulations issued pursuant thereto, provide that no person

in the United States shall, on account of race or color, be

excluded from participation in, denied the benefits of, or

otherwise subjected to discrimination under any program or

activity receiving Federal financial assistance from the De-

partment of Education. The regulations provide that all

funded programs and activities must be conducted or oper-

ated in compliance with all requirements imposed by or

pursuant to Title VI. The regulations further provide that

upon determination by the Department of Education that a

recipient of Federal funds is not in compliance with Title VI

or the regulations issued pursuant to Title VI, the United

States has the right to seek judicial enforcement of Title VI.

21. On January 7, 1981, an authorized representative of

the Department of Education wrote a letter to the Governor

of Alabama, informing him that the Department had found

that the State of Alabama had violated Title VI by failing to

eliminate the vestiges of its dual system of higher education.

This letter requested that the State submit a plan for removal

of those vestiges, and offered the assistance of the Depart-

ment of Education in the framing of such a plan.

22. On November 30, 1981, the Governor submitted to

the Department of Education a proposed Plan, which, how-

ever, was not signed by any party. In compliance with 34

C.F.R. §100.8(d), the responsible officials of the Department

reviewed this Plan and determined that it was not adequate.

On December 22, 1981, the Assistant Secretary for Civil

Rights, Department of Education, advised the Governor that

unless an acceptable desegregation plan was submitted

within ten days, the matter would be referred to the Depart-

ment of Justice for enforcement through appropriate judi-

cial proceedings. Subsequently, on January 4, 1982, the

Assistant Secretary, having determined that compliance

could not be secured by voluntary means, sent a letter to the

Assistant Attorney General for Civil Rights pursuant to 34

C.F.R. §§100.8(a) and (d), requesting that appropriate judi-

A-6

cial proceedings be brought to enforce the requirements of

federal law.

Il. FIRST CLAIM

23. Prior to 1953, the defendants and their predecessors,

by statute, custom and usage, and pursuant to the authority

granted to them by the laws of the State of Alabama,

established and maintained a racially dual system of public

higher education. Certain institutions in the system were

limited to attendance by white students only, and others were

limited to attendance by black students only, as follows:

A. The University of Alabama, in Tuscaloosa, Alabama,

was established in 1831. Pursuant to the policies and prac-

tices of defendants, this institution enrolled only white stu-

dents. It also enrolled only white students at its extension

centers in Birmingham, which opened in 1936, and in

Huntsville, which opened in 1950, both of which centers

became branch campuses of the University in 1969.

B. Auburn University came under the control of the State

of Alabama in 1872. Pursuant to the policies and practices of

- de fendants, this institution enrolled only white students.

The University of Montevallo was established by de-

parce in 1896, as The Alabama Girls’ Industrial School.

Enrollment in this institution was limited by statute to “any

white girl or woman... .” Ala. School Code of 1927, §510.

D. Jacksonville State University, Livingston University,

Troy State University, and the University of North Alabama

were established by detendans as the State Normal Schools at

Jacksonville, Livingston, Troy and Florence, respectively.

These four institutions were designated by statute as being

“tor white teachers.” Code of Alabama, Title 52, §438 (1950).

EK. Alabama State University was established in 1866, as

the Lincoln Normal School, and came under the control of

the State of Alabama in 1874. It was subsequently known as

the Normal School for Colored Teachers, Alabama School

Code, §480 (1927), and as Alabama State College for Neg-

roes, Code of Alabama, Title 52, §438 (1950).

F. Alabama A&M University was created in 1873 as the

A-7

Colored Normal School of Huntsville. In or about 1891, this

institution was moved to its present location, and its name

changed to the State Agricultural and Mechanical School for

Negroes.

24. Pursuant to the statutes, customs and usages of the

State of Alabama requiring segregation of the black and

white races, the defendants employed only white persons as

administrators, faculty and staff for those of the above

institutions which enrolled only white students, and

employed chiefly black persons as adminstrators, faculty and

staff for those of the above institutions which enrolled only

black students. In addition, the defendants, on the basis of

race, discriminated against the institutions established for

black students, inter alia, in the financial and other resources

allocated to thern and in the number and quality of educa-

tional programs provided. Defendants thereby denied black

ciuizens educational opportunities equal to those provided by

them to white citizens.

25. Since 1953, the defendants, by their policies and

practices, have maintained and perpetuated the dual system

of public higher education based on race, among other ways,

as follows:

A. Defendants have denied qualified black applicants ad-

mission to traditionally white institutions because of their

race. None of the institutions established or operated for

white students as described in paragraph 23, above, ever

admitted black students before 1963, with one exception;

Autherine Lucy was admitted to the University of Alabama,

pursuant to an order of this Court, in 1955, but was expelled

shortly thereafter by the Board of Trustees, and not permit-

ted to reenroll. Those institutions which accepted black

students in 1963 did so pursuant to Court order.

B. Defendants have discriminatorily denied black persons

positions on the governing boards of traditionally white

institutions, and have continued to employ chiefly white

persons as faculty and staff members at those institutions

formerly restricted to whites, and chiefly black persons at

those institutions formerly restricted to blacks. These prac-

tices have had the effect of maintaining the racial identifica-

A-8

tion of the institutions, and impeding their desegregation.

C. Detendants have provided black students with fewer

opportunities than white students for public higher educa-

tion, and denied them access to opportunities available to

whites.

D. Defendants have failed to take affi mative steps to

remove the vestiges of the dual educational system resulting

trom their policy of racial segregation in education.

26. As one result of defendants’ racially discriminatory

practices and policies of admission, faculty hiring and as-

signment, and provision of facilities, resources, and curricu-

lar and extra-curricular programs and activities, the institu-

tions of the Alabama system of public higher education

remain largely segregated by race, as shown by the statistics

set out in Attachments A-D to this Complaint.

Ill. SECOND CLAIM

27. The United States repeats and realleges each of the

allegations contained in paragraphs 1-25 of this Complaint.

28. Because enrollment in Alabama A&M University was

restricted to blacks under the State’s policy of racial segrega-

tion in higher education, a perceived need for educational

opportunities for whites in the Huntsville area could not be

met by that institution. The University of Alabama under-

took to meet that need by offering an extension program in

Huntsville, which program eventually, in 1969, became the

University of Alabama at Huntsville (UAH). UAH was then,

and remains, an identifiably white institution.

29. By creating a racially dual system of public higher

education in the Huntsville area, defendants have impeded

the desegregation of Alabama A&M.

30. By choosing to maintain racial segregation by estab-

lishing a competing institution, defendants have deprived

past and present students at Alabama A&M of equal educa-

tional opportunities, on the basis of race.

31. Both Auburn University and Alabama A&M Univer-

sity Operate programs in agricultural education and_re-

search.

ee |

AY

32. The defendants have historically appropriated, and

continue to appropriate, far greater resources to Auburn

than to Alabama A&M for the support of the above-

mentioned programs, because of the racial character of these

Institutions.

33. Various Federal statutes appropriating funds for the

support of agricultural education and research programs,

including among others, the Second Morrill Act, 26 Stat. 417

(Aug. 30, 1880), 7 U.S.C. §321 et seg.; and the Hatch Act of

1887, 24 Stat. 440 (Mar. 2, 1887), vested in the Legislature

and Governor of Alabama the power to allocate these ap-

propriations as between Auburn and Alabama A&M. These

defendants have historically exercised that power to the

advantage of Auburn and the disadvantage of Alabama

A&M, because of the racial character of those institutions.

34. The actions of defendants set out in the foregoing

paragraphs have been taken on account of the racial charac-

ter of the institutions concerned, and have deprived past and

present students at Alabama A&M of equal educational

opportunities on account of race.

IV. RELIEF

35. Defendants have tailed and refused to submit a con-

sututionally acceptable plan to disestablish the racially dual

system of public higher education in Alabama, described in

the foregoing claims, and have failed to provide specific

measures to eliminate the vestiges of the dual system, in-

cluding the continuing effects of their past and present

discriminatory actoins, as set out above.

36. The acts and practices of the defendants and their

agents maintain and perpetuate an unlawful dual system of

higher education based on race, and thereby deprive black

students who now attend, and prospective black students

who may attend, public institutions of higher education of

equal protection of the laws and equal educational oppor-

tunities, in violation of the Fourteenth Amendment to the

Constitution of the United States, and of Title VI of the Civii

Rights Act of 1964 and the regulatons issued pursuant

naa iat

A-10

thereto. Unless enjoined by this Court, defendants will

continue to deprive such black students and prospective

students of the rights guaranteed them by these provisions.

WHEREFORE, the United States prays that this Court

enter an order enjoining the defendants, their agents, offic-

ers, employees, successors and all persons in active concert or

participation with them, from maintaining and perpetuating

racial dualism in the State-supported system of higher edu-

cation in Alabama. The United States prays that defendants

be required to develop, submit and implement detailed plans

which promise realistically and promptly to eliminate all

vestiges of a dual system of higher education within the State,

pursuant to the requirements of Tithe VI of the Civil Rights

Act of 1964 and in compliance with the Fourteenth Amend-

ment to the United States Constituion.

The United States further prays that this Court grant such

additional relief as the needs of justice may require, includ-

ing the costs and disbursements of this action.

WILLIAM FRENCH SMITH

Attorney General

/s/ Wm. Bradford Reynolds

WM. BRADFORD REYNOLDS

Assistant Attorney General

/s/ Frank W. Donaldson

FRANK W. DONALDSON

United States Attorney

/s/ Thomas M. Keeling

THOMAS M. KEELING

HARVEY L. HANDLEY, II]

JAY P. HEUBERT

General Litigation Section

Civil Rights Division

Department of Justice

Washington, D.C. 20530

A-1]

ATTACHMENT A

FULL-TIME UNDERGRADUATE ENROLLMENT

Fall, 1980

Institution Black White Total

a % # % a

Athens State 45] 9.2 436 | 88.8 491

Auburn - Main Campus 318} 2.1] 14717 | 96.9 | 15195

Auburn - Montgomery 541 | 15.7] 2881 | 83.4] 3453

Jacksonville State 694 | 15.0] 3864 | 83.3| 4636

Livingston 223 | 27.9 545 | 68.3 798

Troy State - Main Campus 578 | 14.5] 3348] 84.0] 3988

Troy State - Dothan 27 | 10.2 232 | 87.2| 266

Troy State - Montgomery 212 | 40.8 293 | 56.3 520

U. of Alabama -

Main Campus 1630 | 12.2 | 11450 | 85.8 | 13342

UL. of Alabama -

Birmingham 1542 | 24.9] 4493 | 72.5] 6193

UL. of Alabama -

Huntsville 119 | 4.7] 2354} 92.0] 2559

UL. of Montevallo 138 | 6.7] 1878] 91.6] 2051

UL. of North Alabama 326 | 8.0] 3720] 91.5] 4065

U. of South Alabama 514] 98] 4433 | 84.9] 5219

TOTALS, TWES 6907 | 11.0 | 54644 | 87.0 | 62776

Alabama A&M 2620 | 76.3 131} 3.8] 3433

Alabama State S209 | 99.5 a). Oh gove

TOTALS, TBS 5975 | 87.8 133} 2.0} 6805

GRAND TOTALS 12882 | 18.5 | 54777 | 78.7 | 69581

Source: National Center for Education Statistics (“NCES”),

Higher Education General Information Survey (““HEGIS”)

A-12

ATTACHMENT B

FULL-TIME GRADUATE ENROLLMENT

Fall, 1980

Institution Black White Total

2 % s % 2

Auburn - Main Campus S68 i 5.5 569 | 80.0 711

Auburn - Montgomery 58 | 13.6 361 | 84.5 427

Jacksonville State 12 | 12.0 77 | 77.0 100

Livingston 12 | 32.4 20 | 54.1 37

Troy State - Main Campus 54 | 15.1 291 | 81.5 357

Troy State - Dothan 10 | 5.0 188 | 94.5 199

Troy State - Montgomery 72 | 25.9 197 | 70.9 278

UL. of Alabama -

Main Campus 82] 7.3 939 | 83.2 | 1129

U. of Alabama -

Birmingham 143 |] 11.8 987 | 81.2 | 1216

UL. of Alabama -

Huntsville Gi: 25 203 | 84.9 239

UL. of Montevallo 3 iio 21 | 87.5 24

LU. of North Alabama 2) 10.5 16 | 84.2 19

UL. of South Alabama 17 | 5.0 299 | 88.5 338

TOTALS, TWES 510 | 10.1 | 4168 | 82.1 | 5074

Alabama A&M 93 | 28.2 76 | 23.0 330

Alabama State 192 | 96.5 4] 2.0 199

TOTALS, TBI’S 285 | 53.9 80} 15.1 529

GRAND TOTALS 795 | 14.2 | 4248 | 75.8 | 5603

Source: Same as Attachment A

A-13

ATTACHMENT C

FULL-TIME PROFESSIONAL ENROLLMENT

Fall, 1980

Institution : Black White Total

# \% ca % #

Auburn - Main Campus 0 | 0.0 456 | 99.3 459

UL. of Alabama -

Main Campus 14 2.5 546 | 97.5 560

L. of Alabama -

Birmingham 62 | 5.8 991 | 92.8 | 1068

UL. of Alabama -

Huntsville 3 3.5 82 | 95.3 86

UL. otf South Alabama 0 | 0.0 272 | 100 272

TOTALS 79 3.2 | 2347 | 96.0 | 2445

SOURCE: HEGIS data.

A-14

ATTACHMENT D

FULL-TIME FACULTY

Fall, 1979

Institution Black Non-Black Total

# G # \ #

Athens State 3 7.5 37 | 92.5 10)

Auburn - Main Campus 7 0.7 GY] 4Y 3 QOS

Auburn - Montgomery ri ee 129 | 94.9 136

Jacksonville State 5} 191 257 + Oi 262

Livingston 1.6 61 | 98.4 62

Troy State - Main Campus 6 2.9 204 | 97.1 210

Troy State - Dothan * (44) Hf

Troy State - Montgomery | 2.9 34 | 97.1 a2

UL. of Alabama -

Main Campus 2() 2.4 746 | 97.6 S16

UL. of Alabama -

Birmingham BS | 62.97 1164 | 97.1 | 1199

UL. of Alabama -

Huntsville 2 ee. 162 | Y8.8 164

UL. of Montevallo () () 146 1100 146

UL. of North Alabama i) 1.5 193 | 98.5 196

UL. of South Alabama 18 1.1 426 | 95.9 144

TOTALS, TWIS 108 2.3 | 4600 | 97.7 | 4708

Alabama A&M 166 | 66.4 84 | 33.6 250

Alabama State 120 | 69.0 54 | 31.0 174

TOTALS, TBIS 286 | 67.4 138 | 32.6 $24

GRAND TOTALS 394 7.7 | 4738 | 92.3 | 5132

Source: EEO-6 Reports for academic year

*Not available

** Not included in totals

* 1979-80

renner

A-15

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

CASE NO.

VS. CV-83-C-1676-S

THE STATE OF ALABAMA,

et al.,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

MOTION OF DEFENDANT BOARD OF TRUSTEES

FOR ALABAMA STATE UNIVERSITY FOR

REALIGNMENT AS PARTY-PLAINTIFF

The Board of Trustees for Alabama State University

(hereinafter called “ASU”) hereby moves to be realigned and

treated as a party-plainuff in this case. In support of this

motion defendant ASU represents and shows unto the Court

the following:

1. Compiaint in this case alleges, inter alia, that since 1953

the defendants, by their policies and practices, have main-

tained and perpetuated a dual system of public higher

education based on race, and have tailed to take affirmative

steps to remove the vestiges of the dual educational system

resulting from their policy of racial segregation in education.

A-16

2. The detendant ASU, recognizing the continued exis-

tence of a racially dual system of higher education in the

Montgomery geographical area, proposed, through the ad-

ministrative officers of Alabama State University, in January,

1980, the merger of Auburn University at Montgomery

(hereinafter “AUM") and Troy State University at

Monigomery (hereinafter “PSUM?") into Alabama State Uni-

versity under the control and governance of the Board ot

Trustees for Alabama State University and with the name

Alabama State University.

3. By resolution adopted January 15, 1981, the defendant

ASU reaftirmed merger of AUM and TSUM into Alabama

State University as the most equitable and effective method

to disestablish the racially dual system of higher education tn

Montgomery. (A copy of the resolution ts attached hereto as

Exhibit 1, incorporated herein by reference, and made a part

hereof as if herein set forth in full.)

$. Defendant ASU has thus asserted, and is asserting a

right to relief similar to that sought by plainuff.

5. Defendant ASU, through the Administrative officers of

\labama State University, has exerted every effort available

to it to completely desegregate the faculty, staff and student

body of Alabama State University.

6. Questions of law and fact common to defendant ASL

and plaintiff will arise in this action.

7. Defendant ASU has an interest in the subject of this

action in obtaining essentially the same relief demanded by

plainulf.

8. No party’s rights will be adversely affected by realign-

ment as the interest of defendant ASU coincides with that of

plainutt.

9. The interests of the co-defendants are antagonistic to

the interests of the defendant ASL.

WHEREFORE, defendant ASU respecttully prays that

this court take cognizance of this Motion, and after careful

consideration of the matters and things set forth herein,

enter an Order, pursuant to and in accordance with Federal

A-17

Rules of Civil Procedure, Rules 20 and 21, realigning deten-

dant ASU as party-plainuff in this action.

Respectfully submitted,

GRAY, SEAY & LANGFORD

By: /s/ Solomon S. Seay, Jr.

Solomon S. Seay, Jr.

352 Dexter Avenue

Montgomery, Alabama 36104

(205) 269-2563

Attorney tor Board of Trustees for

Alabama State University

CERTIFICATE OF SERVICE

| hereby certify that | have served copies of the foregoing

MOTION OF DEFENDANT BOARD OF TRUSTEES FOR

ALABAMA STATE UNIVERSTY FOR REALIGNMENT

AS PARTY-PLAIN TIFF upon the following persons by

placing copies of same in the United States Mail, first-class

postage prepaid, on this the 3rd day of August, 1983:

lra Dement FOR: George C. Wallace

Dement & Wise Che Alabama

P.O. Box 4165 Commission on

Montgomery, Alabama Higher Education

3610] The State of Alabama

The Alabama Public

School and College

Authority

Glenn Powell

P. O. Box 295

Tuscaloosa, Alabama 35401

and

Paul Skidmore

P. O. Box 6233

University, Alabama 35486

Charles Coody

Assistant Attorney General

Department of Education

State of Alabama

Montgomery, Alabama

36130

Thomas Thagard

P.O. Box 78

Montgomery, Alabama

36101

and

Edward Allen

Balch, Bingham, Baker,

Ward, Smith, Bowman &

Thagard

P.O. Box 306

Birmingham, Alabama

35201

Walter Merrill

500 First National Bank

Building

Anniston, Alabama 36201

A-18

FOR: The University of

Alabama

FOR: Wayne Teague

Alabama State Board

of Education

FOR: Auburn University

FOR: Jacksons ille State

University

A-19

J. Frederic Ingram

William F. Murray, Jr.

Thomas, Taliaferro,

Forman, Burr & Murray

1600 Bank tor Savings Bldg.

Birmingham, Alabama

35203

Joe R. Whatley, Jr.

Donald W. Stewart

Stewart, Falkenberry &

Whatley

Suite 305

2100 16th Avenue South

Birmingham, AL 35203

Richard F. Calhoun

P.O. Box 965

Troy, Alabama 36081

Frank Ellis, Jr.

P.O. Box 587

Columbiana, Alabama 35051

Robert Potts

107 East College Street

Klorence, Alabama 35630

Maxey Roberts

Phe University of South

Alabama

Mobile, Alabama 36688

William Bradford Reynolds

Assistant Attorney General

Tenth and Constitution

Avenue

Washington, D.C. 20530

FOR:

FOR:

FOR:

FOR:

FOR:

FOR:

Livingston University

Alabama A&M

University

Troy State University

The University of

Montevallo

The University of

North Alabama

The University of

South Alabama

A-20

Frank W. Donaldson

United States Attorney

Federal Courthouse

1800 Sth Avenue North

Birmingham, Alabama

35203

Chomas M. Keeling

Harvey L. Handley, III

Jay P. Heubert

General Litigation Services

Civil Rights Division

Department of Justice

Washington, D.C. 20530

s Solomon §S Seay, jr.

A-21

EXHIBIT I

POLICY ON UNIVERSITY DESEGREGATION

WHEREAS, the U. S. Department of Education, Office of

Civil Rights, has notified Governor Fob James that the State

of Alabama has failed to eliminate vestiges of the former de

jure racially dual system of higher education; and

WHEREAS, the State is given a limited time in which to

submit to the Department a statewide desegregation plan;

and

WHEREAS, any such plan would involve Alabama State

University.

BE IT THEREFORE RESOLVED, That the Board of

[rustees for Alabama State University reaffirms the position

that the seniority of Alabama State Universty as an autonom-

ous, full-service senior institution in the Montgomery area be

recognized in any future desegregation plan as is now

provided under the statutes of Alabama (H.B. 494, Act

79-461).

BE TT ALSO RESOLVED, That the Board focuses atten-

lion on its status as the only Montgomery-based university

governance body established under Alabama statutes and

calls upon the Legislature and the Governor for such addi-

tional powers and duties as would be necessary for manage-

ment and control of all higher education offerings in the

event of change in the governance of the Montgomery

branches of Auburn University and Troy State to accommo-

date any plan for further desegregation, academic o1

economic improvement.

BE IT FURTHER RESOLVED, That in event of consoli-

dation or merger and/or any change of identity involving

Alabama State and the Montgomery branches of Auburn

University and Troy State, the Board hereby calls upon the

Legislature and Governor to safeguard and preserve the

name “ALABAMA STATE UNIVERSITY.”

Agenda Item #6

A-22

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

\. ) CASE NO.

) CV-83-C-1676-S

THE STATE OF ALABAMA, )

et al., )

)

Defendants. )

MOTION TO REALIGN OR IN THE ALTERNATIVE

FOR LEAVE TO FILE CROSS CLAIMS

The Board of Trustees for Alabama A & M University

(hereinafter “Alabama A & M) hereby moves to be realigned

and treated as a party-plaintiff based on the’ following:

1. The racially dual system of public higher education

described in the First Claim in the Complaint has discrimi-

nated against and damaged Alabama A & M, a traditionally

black institution of higher education, in that, among other

things, it has been denied its fair share of the capital and

operation funds necessary for it to Carry out its mission in a

manner consistent with comparable traditionally white in-

sutuuions of higher education. To correct this discrimination.

the Court should require the expenditure of substantial,

supplemental funds, according to proof of need and

amount, to enhance Alabama A & M so that it can attract

more students of all races.

2. Likewise, the allegations of the Second Claim de-

monstrate discrimination against and damage to Alabama

\& M. The University of Alabama in Huntsville (hereinat-

ter “U-AH”) was established and expanded for racially dis-

criminatory reasons. Especially, the expansion of UAH into

A-23

education, business, computer science, and other non-

engineering programs has damaged Alabama A & M and

limited the ability of Alabama A & M to attract students of all

races. At least, UAH should be enjoined from continuing to

offer programs in education, business, computer science,

and other non-engineering areas, and from expanding into

any and all other programs. Also, for racially discriminatory

reasons, Auburn has been treated more favorably than

Alabama A & M in all land grant functions, including but not

limited to agricultural teaching and research and farm

extension services. To correct this racially discriminatory

treatment, the Court should order that Alabama A & M be

given control of all land grant functions in North Alabama,

while leaving Auburn with those functions in South

Alabama. An equalization of land grant funding ts necessary

to effect this proper distribution of land grant functions.

3. The claims of Alabama A & M are brought under 42

U.S.C. § 1981 and 1983 and the Fourteenth Amendment to

the United States Constitution with subject matter jurisdic-

tion under U.S.C. § 1343, in addition to being under Title V1

of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq. In

addition to the relief requested herein and the original

Complaint, Alabama A & M requests the award of attorney's

fees and such other relief as may be appropriate.

4. Alternatively, Alabama A & M moves for leave to file

the cross claims attached hereto.

Respectfully submitted,

STEWART, FALKENBERRY &

WHATLEY

Suite 305, 2100 16th Avenue South

Birmingham, AL 35205

(205) 933-0300

By /s/ Joe R. Whatley, Jr.

Joe R. Whatley, Jr.

/s/ Donald W. Stewart

Donald W. Stewart

A-24

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the

foregoing motion has been served on the following by

depositing same in the U. S. Mail, postage prepaid, on this

the 25 day of July, 1983:

Ira Dement, Esquire FOR: George C. Wallace

Dement & Wise The Alabama

P. O. Box 4163 Commission on

Montgomery, AL 36101 Higher Education

The State of Alabama

The Alabama Public

School and College

Authority

Glenn Powell, Esquire FOR: The University of

P. O. Box 295 Alabama

Tuscaloosa, AL 35401

Charles Coody, Esquire FOR: Wayne Teague

Assistant Attorney General Alabama State Board

Department of Education of Education

State of Alabama

Montgomery, AL 36130

Solomon Seay, Jr., Esquire FOR: The Board of

Gray, Seay & Langford Trustees for

352 Dexter Avenue Alabama State

Montgomery, AL 36104 University

FOR: Auburn University

Thomas Thagard, Esquire

P.O. Box 78

Montgomery, AL 36101

Walter Merrill, Esquire FOR: Jacksonville State

500 Ist National Bank Bldg. University

Anniston, AL 36201

A-25

Fred Ingram, Esquire FOR: Livingston University

Thomas, Taliaterro,

Forman, Burr & Murray

1600 Bank for Savings Bldg.

Birmingham, AL 35203

Richard F. Calhoun, Esquire FOR: Troy State University

P.O. Box 965

Troy, AL 36081

Frank Ellis, Jr., Esquire FOR: The University of

P. O. Box 587 Montevallo

Columbiana, AL 35051

Robert Potts, Esquire FOR: The University of

107 East College Street North Alabama

Florence, AL. 35630

Maxey Roberts, Esquire FOR: The University of

Phe University of South South Alabama

Alabama

Mobile, AL. 36688

William Bradford Reynolds

Assistant Attorney General

Tenth and Constitution

Avenue

Washington, DC 20530

Frank W. Donaldson

United States Attorney

kederal Courthouse

1800 5th Avenue North

Birmingham, AL 35203

A-26

Thomas M. Keeling

Harvey L. Handley, II

Jay P. Heubert

General Litigation Services

Civil Rights Division

Department of Justice

Washington, DC 20530

/s/_ Joe R. Whatley, Jr.

Joe R. Whatley, Jr.

A-27

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

THE STATE OF ALABAMA,

et al.,

Defendants.

CROSS CLAIMS

The Board of Trustees for Alabama A & M University

(hereinafter “Alabama A & M”) hereby files the following

cross claims:

1. These claims are filed pursuant to the ancillary juris-

diction of this Court. These claims are also brought under 42

U.S.C. §§ 1981 and 1983 and the Fourteenth Amendment to

the United States Constitution, with subject matter jurisdic-

tion being based on 28 U.S.C. § 1343, in addition to being

under Title VI of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000d, et seq.

2. Each and every allegation, claim, and request for reliet

in the original complaint are hereby realleged and incorpo-

rated herein by reference.

3. The racially dual system of public higher education

described in the First Claim in the Complaint has discrimi-

nated against and damaged Alabama A & M, a traditionally

black institution of higher education, in that, among other

things, Alabama A & M has been denied its fair share of the

A-28

capital and operational funds necessary for it to carry out its

mission in a manner consistent with comparable traditionally

white institutions of higher education. To correct this dis-

crimination, the Court should require the expenditure of

substantial, supplemental funds, according to proof of need

and amount to enhance Alabama A & M so that it can attract

more students of all races.

4. Likewise, the allegations in the Second Claim of the

original Complaint demonstrate discrimination against and

damage to Alabama A & M. UAH was established and ex-

panded for racially discriminatory reasons. Especially, the

expansion of UAH into education, business, computer sci-

ence, and other non-engineering programs has damaged

Alabama A & M and limited the ability of Alabama A & M to

attract students of all races. At least, UAH should be en-

joined from continuing to offer programs in ducation,

business, computer science, and other non-engineering

areas, and from expanding into any and all other programs.

Also, for racially discriminatory reasons, Auburn has been

treated more favorably than Alabama A & M in all land

grant functions, including but not limited to agricultural

teaching and research and farm extension services. To

correct this racially discriminatory treatment, the Court

should order that Alabama A & M be given control of all

land grant functions for North Alabama, while leaving

Auburn with those functions for South Alabama. An equali-

zation of land grant funding is necessary to effect this proper

distribution of land grant functions.

5. These cross claims are brought against all other defen-

dants to this action.

WHEREFORE, Alabama A & M request that the Court

order the releif requested in the original Complaint, the

relief requested in the body of this complaint, an award of

A-29

attorney's fees and costs, and such other relief as the Court

may consider appropriate.

Respectfully submitted,

STEWART, FALKENBERRY &

WHATLEY

Suite 305, 2100 16th Avenue South

Birmingham, AL 35205

(205) 933-0300

By /s/ Joe R. Whatley, Jr.

foe R. Whatley, Jr.

/s/ Donald W. Stewart

Donald W. Stewart

CERTIFICATE OF SERVICE

| hereby certify that a true and accurate copy of the

foregoing instrument has been served on the following by

depositing same in the U. S. Mail, postage prepaid, on this

25th day of July, 1983:

Ira Dement, Esquire FOR: George C. Wallace

Dement & Wise The Alabama

P. O. Box 4163 Commission on

Montgomery, AL 36101 Higher Education

The State of Alabama

The Alabama Public

School and College

Authority

Glenn Powell, Esquire FOR: The University of

P.O. Box 295 Alabama

Tuscaloosa, AL 35401

A-30

Charles Coody, Esquire

Assistant Attorney General

Department of Education

State of Alabama

Montgomery, AL 36130

Solomon Seay, Jr., Esquire

Gray, Seay & Langford

352 Dexter Avenue

Montgomery, AL 36104

Thomas Thagard, Esquire

P. O. Box 78

Montgomery, AL 36101

Walter Mermill, Esquire

500 Ist National Bank Bldg.

Anniston, AL 36201

Fred Ingram, Esquire

Thomas, Taliaferro,

Forman, Burr & Murray

1600 Bank tor Savings Bldg.

Birmingham, AL 35203 —

Richard F. Calhoun, Esquire

P. O. Box 965

Troy, AL 36081

Frank Ellis, Jr., Esquire

P. O. Box 587

Columbiana, AL 35051

Robert Potts, Esquire

107 East College Street

Florence, AL 35630

FOR:

FOR:

FOR:

FOR

FOR:

FOR:

FOR:

FOR:

Wayne Teague

Alabama State Board

of Education

The Board of

Trustees for

Alabama State

University

Auburn University

: Jacksonville State

University

Livingston University

Troy State University

The University of

Montevallo

The University ot

North Alabama

A-31

Maxey Roberts, Esquire FOR: The University of

The University of South South Alabama

Alabama

Mobile, AL 36688

William Bradford Reynolds

Assistant Attorney General

Tenth and Constitution

Avenue

Washington, DC 20530

Frank W. Donaldson

United States Attorney

kederal Courthouse

1800 5th Avenue North

~ Birmingham, AL 35203

Thomas M. Keeling

Harvey L. Handley, III

Jay P. Heubert

General Litigation Services

Civil Rights Division

Department of Justice

Washington, DC 20530

/s/_ Joe R. Whatley, Jr.

Joe R. Whatley, Jr.

A-3$?

APPENDIX D

IN THE UNEPED STATES DISTRICT COURT FOR

PHE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITE ED STATES OF AMERICA,

Phatntitt, CIVIL ACTION NQ.

\S. CV-83-C-1676-S

LHE SEATE OF ALABAMA,

etal.,

Defendants.

MOTION AND NOTICE FOR TEMPORARY

RESTRAINING ORDER

Realigned Planttf Board of Trustees for Alabama State

University hereby moves this Court for a Temporary Re-

straining Order restraining and enjoining the defendants

Alabama State Board of Education and Wayne Teague, State

Superintendent of Education, their agents, employees, suc-

cessors, attorneys, and all persons in active concert: and

partcipation with them, trom tailing and refusing to take the

necessary steps to recertifty the following Education: Pro-

grams at Alabama State University, pending a hearing and

determination of realigned plainuff's Motion for Temporary

Restraining Order and/or Preliminary Injunction: Class A

Superintendent, Class AA Superintendent, Class A General

Supervisor, Class AA General Supervisor, and Class AA

Reading Supervisor.

Unless this motion is granted, realigned plainutf Board of

Trustees tor Alabama State University will suffer immediate

and irreparable injury, loss and damage if defendants are

permitted to decertify the above-enumerated programs until

a hearing can be had on this motion, as more fully appears

trom the verified Complaint attached hereto.

DATED this 13th day of August, 1985

Respecttully submitted,

/s/) SOLOMON S. SEAY, JR.

/s) ‘TERRY G. DAVIS

ATTORNEYS FOR

REALIGNED PLAINTIFF

BOARD OF TRUSTEES FOR

ALABAMA STATE

UNIVERSITY

732 Carter Hill Road

Post Office Box 6215

Montgomery, Alabama 36106

(205) 834-2000

NOTICE OF MOTION

TO: ALL ATTORNEYS OF RECORD FOR

DEFENDANTS IN THE ABOVE-STYLED

CAUSE

Please take notice that on the —— day of

1985 at 9:00 o'clock a.m., or as soon thereafter as counsel can

be heard, the undersigned will bring the above motion on for

hearing before the Honorable U. W. Clemon, United States

District Judge, at the United States Courthouse, Birming-

ham, Alabama.

/s) SOLOMON S. SEAY, JR.

/s) TERRY G. DAVIS

A-34

CERTIFICATE OF COUNSEL

STATE OF ALABAMA )

MONTGOMERY COUNTY )

I, the undersigned attorney of record for Realigned Plain-

uff Board of Trustees for Alabama State University, hereby

certify that a copy of the above and foregoing motion was

mailed to the attorneys for all of the parties on the 13th day

of August, 1985.

1 turther hereby certify that a copy of the above and

foregoing motion was hand delivered to the Office of Attor-

ney Charles Coody, the attorney representing defendants

Alabama State Board of Education and Wayne Teague, State

Superintendent of Education, and that | was advised by Mr.

Coody’'s Office that he would be out of town until Thursday,

August 15, 1985.

/s) SOLOMON S. SEAY, JR.

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED SFATES OF AMERICA,

Plainuff, CIVIL ACTION

VS. NO. CV-83-C-1676-S

THE STATE OF ALABAMA,

et al.,

Detendants

A-35

COMPLAINT

Jurisdiction

1. Thos action arises under the Fourteenth Amendment to

the Constitution of the United States, Tithe VI of the Civil

Rights Act of 1964, 42 U.S.C. §§ 2000d, et seg., the Civil

Rights Act of 1871, 42 U.S.C. §§ 1981 and 1983, and the

Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C.

§ 1988. The matter in controversy exceeds, exclusive of

interest and costs, the sum of $10,000. Jurisdiction of this

court is invoked pursuant to the provisions of 28 U.S.C.

§§ 1331, 1343(3), and 1341(4), 2201 and 2202.

Parties

2. The parties to this action are correctly enumerated in

this Court’s Principal Pretrial Order dated February 19,

1985; except Livingston University and the University of

Montevallo, whose Rule 41(b) motions were granted.

Allegations of Fact

2. Realigned Plainuftf Board of Trustees for Alabama

State University tn its statement of Amended Claims, hereto-

fore tiled in this case, alleged:

“12. Exercising its authority under Ala. Code, Sec. 16-

24-14 (1975), the defendant State Board has also prescribed

minimum requirements for faculty members in programs

for instructional support personnel. Approval of an institu-

tion’s teacher education program ts contingent upon meeting

these requirements which include the following:

That they hold an earned doctorate, or the equi-

valent, with a major emphasis in the field of specializa-

tion in which the major workload is assigned;

b. That they have a minimum of three years of

successful experience as a practitioner in the instruc-

tional support area in which the major workload ts

assigned;

A-36

c. That at least one faculty member in each tnstruc-

tional support area in which a program leading to

certification is offered shall hold an earned doctorate

with an area of specialization in that field.

“13. In May 1984, a review team appointed by the deten-

dant State Superintendant of Education recommended that

no students be admitted to the tollowing programs at ASU

because faculty members in these programs did not meet

some or all of the aforegoing taculty requirements:

a. The Class A and Class AA Superintendent Pro-

gram: of the two faculty members in this — at

ASU, both have the appropriate doctorates, but neither

has three years experience as superintendent. One ta-

culty member with an appropriate degree and three

years of experience as a superintendent ts required tor

the Class A program; two such faculty members are

required for the Class AA program.

b. The Class A and Class AA General Supervisor

Program: of the two faculty members in this program at

ASU, both lack the required doctoral level preparation

in supervision, and both lack the three years a ex peri-

ence as a supervisor. One faculty member with —S

riate preparation and experience is required for the

Class A program; two such faculty members are re-

quired for the Class AA ge

c. The Class A and Class AA Reading Supervisor

Program: of the two faculty members in this program at

ASU, both have the required doctoral level preparation,

but neither has three years of experience as reading

supervisor. One faculty member with appropriate doc-

toral level preparation and three years of experience as a

reading supervisor is required for the Class A program;

two such faculty members are required for the Class AA

program.

d. The Class A and Class AA Library Media Program:

the one faculty member in this program at ASU is fully

qualified, but State Board regulations ye soe a

minimum of two faculty members meeting the aforesaid

requirements for the Class A program. No additional

faculty member is required for the Class AA program.”

3. The Amended Claims further alleged that:

A-37

“14. The State Board’s requirements for faculty in prog-

rams for instructional support personnel and the recom-

mendations of the May 1984 review team at ASU have an

adverse racial impact on black students and _ traditionally

black institutions, including ASU, and they perpetuate the

vestiges of the prior de jure system of racial segregation at all

levels of public education in Alabama. Because of historical

segregation and racial discrimination against black students

and black professionals, there are disproportionately few

black educators who can satisfy faculty requirements for

insturctional support personnel programs, namely, three

years experience as a superintendent, supervisor, reading

supervisor or supervisor of library media and doctoral level

preparation in those specific fields of specialization.”

“15. The faculty requirements for instructional support

personnel programs are not necessary for the successful

operation of such programs or for the successful preparation

of students in those programs.”

“16. The requirements for faculty in insturctional support

personnel programs have both the purpose and the effect of

discriminating against black students, black professionals

and traditionally black institutions.”

4. The Amended Claims also sought, inter alia, prelimi-

nary and premanent injunctions restraining and enjoining

the defendants from continuing to enforce the minimum

faculty requirements for instructional support personnel

programs.

5. On, to-wit, the 8th day of August, 1985, the defendant

State Board of Education failed adn refused to recertify the

Class A and Class AA Superintendent Programs, the Class A

and Class AA General Supervisor Programs, and the Class

AA Reading Supervisor Program at Alabama State Univer-

sity, allegedly by reason of the fact that Alabama State

University failed to meet the faculty experiential require-

ment. The Board’s action had the purpose and effect of

decertifying said programs after September 9, 1985. A copy

of the State Board of Education’s resolution is attached

hereto as Exhibit 1, and incorporated herein by reference

aia

A-38

and made a part hereof as if herein set forth in full.

6. Faculty personnel assigned to the above-named in-

structional support personnel programs at Alabama State

University are all persons with faculty rank and tenure, and

are otherwise qualified except for experiential requirements.

Each is black.

7. Experiential requirements adopted by the Board, and

the action of the defendant Board in decertifying the prog-

rams at Alabama State University have both the purpose and

effect of discriminating against black students, black protes-

sionals and traditionally black Alabama State University.

8. Unless restrained and enjoined by this Honorable

Court, the action of said Board will have the effect of

depriving Alabama State University of a major portion of its

Teacher Education Program, in violation of due process and

equal protection clauses of the Fourteenth Amendment to

the Constitution of the United States, and 42 U.S.C. §§ 1981

and 1983.

PRAYER FOR RELIEF

WHEREFORE, Realigned Plaintiff Board of Trustees for

Alabama State University respectfully prays that this Court

take cognizance of this Complaint for Temporary Restrain-

ing Order and for Preliminary Injunction, and after careful

consideration of the matters and things set forth herein,

enter Temporary Restraining Order and Preliminary In-

junction:

(1) restraining and enjoining defendants State Board

of Education and Wayne Teague, State Superintendent

of Education, and all persons in active concert and

participation with them, from failing and refusing to

recertify the Class A Superintendent, Class AA

Superintendent, Class A General Supervisor, Class AA

General Supervisor, and Class AA Reading Supervisior

Programs at Alabama State University pending final

hearing and determination of this claim;

(2) mandatorily requiring that the defendants State

Board of Education and Wayne Teague, State Superin-

tendent of Education, and all persons in active concert

A-39

and aber aye with them, recertify the Class A

Superintendent, Class AA Superintendent, Class a Gen-

eral Supervisor, Class AA General Supervisor, and Class

A Reading Supervisor Programs at Alabama State Uni-

versity pending final hearing and determination of the

merits of this claim.

Respectfully submitted,

/s) SOLOMON S. SEAY, JR.

/s) TERRY G. DAVIS

ATTORNEYS FOR

REALIGNED PLAINTIFF

BOARD OF TRUSTEES FOR

ALABAMA STATE

UNIVERSITY

ADDRESS OF COUNSEL:

732 Carter Hill Road

Post Office Box 6215

Montgomery, AL 36106

(205) 834-2000

A-40

STATE OF ALABAMA )

MONTGOMERY COUNTY )

| hereby certify that | have read the foregoing Complaint,

and know the contents thereof, and that the matters and

things set forth therein are true and correct to the best of my

knowledge, information and belief.

/s) BEATRICE MORSE

SWORN TO AND SUBSCRIBED betore me this the 13th

day of August, 1985.

/s/ Solomon S. Seay, Jr.

NOTARY PUBLIC

STATE OF ALABAMA AT

LARGE

MY COMMISSION

EXPIRES: 2-1-89

CERTIFICATE OF SERVICE

| hereby certify that I have served a copy of the foregoing

COMPLAINT upon the following persons, by placing same

in the United States Mail, first-class postage prepaid, on this

the 13th day of August, 1985:

Nathaniel Douglas Thomas D. Samford, III

Franz Marshall Samtord & Samtord

Leverne M. Younger P.O. Locker Drawer 550

Pauline A. Miller Opelika, Alabama

Jeanne K. Pettenati 36803-0550

Angela Schmidt

Jeremiah Glassman Ms. Maxey V. Roberts

General Litigation Section University of South Alabama

Civil Rights Division Room 136 Administrative

Department of Justice Building

Washington, D.C. 20530 Mobile, Alabama 36688

A-4]

Ms. Caryi P. Privett

Assistant United States

Attorney

Room 200, Federal

Courthouse

Birmingham, Alabama

35203

Donald V. Watkins

Watkins, Carter & Knight

1120 South Court Street

Montgomery, Alabama

36104

Mr. James U. Blacksher

Mr. Larry T. Menetee

Blacksher, Menetee & Stein,

P.A.

405 Van Antwerp Building

Post Office Box 1051

Mobile, Alabama 36633

Edward S. Allen

John Richard Carrigan

M. Stantord Blanton

Balch, Bingham, Baker,

Ward, Smith, Bowman &

Thagard

Post Office Box 306—

Birmingham, Alabama

35201

T. Michael Putnam

Potts, Young, Blasingame &

Suttle

Post Office Box 1760

Florence, Alabama 35630

Mr. Richard F. Calhoun

Brantley & Calhoun

Post Office Box 965

Troy, Alabama 36081

Mr. Ira DeMent

Mr. Ronald W. Wise

Ms. Joan Van Almen

Dement & Wise

Suite 311, Corporate Square

Montgomery, Alabama

36104

Mr. Walter J. Merrill

Post Office Box 580

Anniston, Alabama 36202

Mr. Joe R. Whatley, Jr.

Mr. John C. Falkenberry

Falkenberry, Whatley &

Heidt

Suite 305

2100 16th Avenue, South

Birmingham, Alabama

35205

A-42

David R. Boyd

Thomas W. Thagard, Jr.

Balch, Bingham, Baker,

Ward, Smith, Bowman &

Thagard

Post Office Box 78

Montgomery, Alabama

36101

Robert L. Potts

C. Glenn Powell

Stanley J. Murphy

Charles Self

Robert Rieder

401 Queen City Avenue

Tuscaloosa, Alabama 35401

Mr. William F. Murray, Jr.

Mr. Frederick Ingram

Thomas, Taliaferro,

Forman, Burr and Murray

1600 Bank for Savings

Building

Birmingham, Alabama

35203

Mr. Frank C. Ellis, Jr.

Wallace, Ellis, Head &

Fowler

Post Office Box 587

Columbiana, Alabama 35051

Mr. Charles S. Coody

Mr. Jeffrey A. Foshee

State Department of

_ Education

State Office Building

Montgomery, Alabama

36130

Carl E. Johnson

J. Scott Green

Bishop, Colvin & Johnson

601-13 Frank Nelson

Building

Birmingham, Alabama

35203

Mylan R. Engel

Engel & Smith

Post Office Box 1045

Mobile, Alabama 36633

/s/ Solomon S. Seay, Jr.

[Exhibits Omitted]

A-43

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 85-7582

United States of America, et al.,

Plaintiffs-A ppellees,

John F. Knight, Jr., e¢ a.,

Plaintiffs-Intervenors,

Appellees,

v.

The State of Alabama, et al.,

Defendants,

The Alabama State Board of Education;

Wayne Teague, State Superintendent of Education,

Defendants-A ppellants.

Appeal from the United States District Court

for the Northern District of Alabama.

[Filed June 6, 1986]

Before VANCE and JOHNSON, Circuit Judges, and

ALLGOOD*, Senior District Judge.

JOHNSON, Circuit Judge:

We review here the district court’s decision to enjoin the

Alabama State Board of Education (“the Board”) and its

members from refusing to recertify certain Alabama State

* Honorable Clarence W. Allgood, Senior U.S. District Judge tor the

Northern District of Alabama, sitting by designation.

A-44

University (ASU) teacher education programs. We RE-

VERSE the district court’s entry of the injunction against the

Board and its members on behalf of ASU, and the entry of

the injunction against the Board on behalf of a class of

intervening plaintiffs. WE AFFIRM the entry of the injunc-

tion on behalf of these intervenors against the Board mem-

bers acting in their official capacities.

The injunctive order at issue here arises from a July 1983

action originally filed by the United States under 42 U.S.C.A.

§ 1983 and 42 U.S.C.A. § 20004 et seg. (Title V1) against the

state of Alabama, state education authorities, and all state

four-year institutions of higher education in Alabama. This

suit charged that Alabama impermissibly operates a dual

system of racially segregated higher education.

The court below granted the motion of Alabama State

University, a majority-black institution located in Montgom-

ery, Alabama, to realign as a plainuff. The court also

permitted John F. Knight and other faculty, graduates,

employees and students at ASU (“the Knight intervenors”) to

intervene as plainuffs, and certified them as representatives

tor a class including graduates of ASU; black adults or minor

children in Alabama presently attending, or eligible to attend

now or in the future, any public institution of higher

education in the Montgomery area; and black citizens who

were, are or will become eligible to be employed by such

institutions. As a realigned plainuff, ASU raised several

additional claims, seeking chiefly to challenge Alabama State

Board of Education requirements for approval of certain

teacher education programs. By joint motion, these issues

were severed from the main statewide action and set for later

trial.

Meanwhile, during the pendency of these proceedings, the

state Board voted not to recertify certain undergraduate and

graduate teacher education programs at ASU. On motion by

ASU and the Knight intervenors the district court enjoined

the Board action to maintain the status quo pending resolu-

A-45

tion of the substantive questions before it and to preserve its

jurisdiction. In reaching its decision the court below con-

cluded that the Board’s action was improperly retaliatory —

that is, that the Board refused to recertify the ASU education

programs in order to punish ASU for bringing suit. It is this

injunctive order that comes before us for review.

Il

We turn first to certain jurisdictional issues raised by

appellant. The state Board argues that the district court did

not have jurisdiction to grant ASU an injunction since the

latter had no rights under Section 1983 or Title VI and,

therefore, no standing to sue for protection of those rights.

The Board does not challenge the standing of the Knight

intervenors. Further, the Board of Trustees of the University

of Alabama, as amicus curiae, urges that the district court

was without jurisdiction to enjoin the state Board and its

members since the state of Alabama and its agencies are

immune from suit under the Eleventh Amendment to the

United States Constitution.

Although the district court did not discuss these issues in

the order before us,! we may examine our jurisdiction sua

sponte. /n Re King Memorial Hosp., Inc., 767 F.2d 1508, 1510

(1ith Cir. 1985). Logic dictates that parties who seek a

‘In its memorandum opinion in the state-wide action, however, the

lower court said:

The contention that ASL and A&M are creatures of the State of

Alabama and, as such, lack standing to sue the defendants in this case

requires litthe discussion. In Washington v. Seattle School District No. 1,

458 U.S. 457 [102 S.Ct. 3187, 73 L.Ed.2d 896] (1982), the Seattle,

Washington School Board — no less a creature of the State of

Washington than ASU and A&M are creatures of the State of

Alabama — sued the State of Washington under the Fourteenth

Amendment. There the Supreme Court held that the State had

violated the Equal Protection Clause of the Fourteenth Amendment

by the challenged legislative action. The dissent by Justice Powell

never once suggested that the school board lacked standing to bring

the lawsuit. Further, in the view of the court, Monell v. NYC Dept. of

Social Services, 436 U.S. 658 [98 S.Ct. 2018, 56 L.Ed.2d 611) (1978),

makes it clear that as bodies corporate, ASU and A&M are “persons”

within the meaning of 42 U.S.C. § 1983.

A-46

preliminary injunction in a suit must have standing to bring

suit in the first place. Thus, our first inquiry is whether ASU

or the Knight intervenors had standing to sue in the original

action under either Section 1983 or Title VI. Second, we

must decide, since a state agency is the party enjoined,

whether the latter enjoys immunity under the Eleventh

Amendment.

We agree with appellant that ASU has no standing to sue

under either Section 1983 or Title VI. In so doing, however,

we cannot accept appellant’s broad contention that ASU, as a

creature of state government, has no tederally protected

rights whatsoever under the Constitution or laws of the

United States.

A line of Supreme Court cases including, e.g., Coleman v.

Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939);

Willams v. Mayor and City Council of Baltimore, 289 U.S. 36, 53

S.Ct. 431, 77 L.Ed. 1015 (1933); City of Trenton v. New Jersey,

262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923): and Hunter

v. City of Pittsburg, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151

(1907), stands generally for the proposition that creatures of

the state have no standing to invoke certain constitutional

provisions in opposition to the will of their creator. A former

Fifth Circuit case concluded from this authority that “public

entities which are political subdivisions of a state” are “crea-

immunities independently of those expressly conferred

upon them by the state.” Coty of Safety Harbor v. Birchfield, 529

F.2d 1251, 1254 (5th Cir. 1976). However, the latter in-

terpretation — which would bar any suit by a creature of the ~

State against its creator — has not prevailed in this Court.

A subsequent Fifth Circuit decision binding on this Circuit

has reviewed the Hunter line — including Safety Harbor,

supra — and concluded that “these cases are substantive

interpretations of the constitutional provisions involved; we

do not think they hotd that a municipality never has standing

to sue the state.” Rogers v. Brockette, 588 F.2d 1057, 1068 (5th

Cir. 1979), cert. denied, 444 U.S. 827, 100 S.Ct. 52, 62 L.Ed.2d

35 (1979). The Fifth Circuit panel relied in part on the

Supreme Court's statement in Gomillion v. Lightfoot, 364 U.S.

A-47

339, 344, 81 S.Ct. 125, 128, 5 L.Ed.2d 110 (1960), that “a

correct reading of the seemingly unconfined dicta of Hunter

and kindred cases is not that the state has plenary power to

manipulate in every conceivable way, for every conceivable

purpose, the affairs of its municipal corporations, but rather

that the state’s authority is unrestrained by the particular

prohibitions of the constitution considered in those cases.”

Id.

Thus, no per se rule applies tn this Circuit.? In assessing

the standing to sue of a state entity, we are bound by the

Supreme Court’s or our own Court’s determination of

whether any given constitutional provision or law protects

the interests of the body in question. However, if no such

determination has been made, it is our task to review de novo

whether the state entity has any rights under the particular

rule invoked.

In the instant case, the law is clear that ASU, as a creature

of the state, may not raise a Fourteenth Amendment claim

under Section 1983.* As long ago as 1939, the Supreme

Court in Coleman, supra, 307 U.S. at 441, 59 S.Ct. at 976

(1939) (dicta), indicated that “[bJeing but creatures of the

State, municipal corporations have no standing to invoke the

contract clause or the provisions of the Fourteenth Amend-

ment of the Constitution in opposition to the will of their

Cf. City of South Lake Tahoe v. California Tahoe Regional Planning Agency,

449 US. 1039, 1042, 101 S.Ct. 619, 621, 66 L.Ed.2d 502 (1980) (White, J.

dissenting trom denial of certiorari). Justice White indicated that a per se

rule prohibiting a political subdivision trom raising constitutional objec-

tions to the validity of a state statute was inconsistent with Board of

Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), in

which one of the appellants was a local board of education.

But see City of New York v. Ru hard.on, 473 F.2d 923, 929 (2d Cir.1973); P.

Bator et al, Hart and Wechsler’s The Federal Courts and the Federal

System (2d ed.) 182 (1973), in which a per se rule is contemplated. § °° also

Aguayo v. Richardson, 473 F.2d 1090, 1100 (2d Cir.1973), cert. denied, 414

U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974), for an indication of the

contusion surrounding this issue.

‘By its terms, of course, Section 1983 itself creates no substantive rights:

it merely provides remedies for deprivations of rights established

elsewhere. City of Oklahoma City v. Tuttle, — U.S. —_, 105 S.Ct. 2427, 2732,

85 L.Ed.2d 791 (1985). Thus, our focus here is directly on Fourteenth

Amendment rights.

a

A-48

creator.” See also Town of Ball v. Rapides Parish Polwe Jury,

746 F.2d 1049, 1051 n. 1 (5th Cir.1984). ASU argues,

however, that since the Supreme Court has more recently

determined that municipalities and other local governing

bodies are “persons” who may be sued under Section 1983,

Monell v. New York City Dept. of Social Services, 436 U.S. 658,

690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (19770, they are

logically also persons who may bring suit under this section.

The former Fifth Circuit, however, has squarely rejected this

argument:

The Supreme Court’s holding in Monell is that by

enacting 42 U.S.C. § 1983, Congress intended to make

municipalities and other political subdivisions amenable

to suits brought under that section. The Monell decision

does not call into question the principle that a city or

county cannot challenge a state statute on federal con-

stitutional grounds.

Appling City v. Municipal Elec. Authority of GA., 621 F.2d 1301,

1308 (5th Cir.1980), cert. denied, 449 U.S. 1015, 101 S.Ct.

574, 66 L.Ed.2d 474 (1980).* We are bound by this decision,

which extends logically to other creatures of the state such as

state universities. ASU thus has no standing to sue or to seek

to enjoin the Alabama state board of education under

Section 1983 and the Fourteenth Amendment.®

See also Commonwealth of Pa. v. Porter, 659 F.2d 306, 327 n. 3 (3rd

Cir. 1981) (en banc) (standing recogmzed on other grounds): “|S}tates were

never deemed to tall within the class of those for whom Congress created a

remedy when it enacted § 1983... . . \llowing a state to bring suit, against

iS OWN Instrumentalities and against its own officers, for thei alleged

violations, under color of state law, of federal rights belonging to the very

state which it is suing, turns the statute on its head.”

‘Washington v. Seattle School Dist. No, 1, 458 U.S. 457, 102 8.C4.3187, 73

L.kd.2d 896 (1981), is not inconsistent with this position. There, a local

school district challenged on Fourteenth Amendment grounds the con-

situtionality of a state initiative that sought to end the local school district

use of mandatory bussing to achieve desegregation. The Supreme Court

did not address the issue of the school board's standing to sue, although

Justice Blackmun’s opinion for the court did note that “[wjhile appellants

suggest that it is incongruous for a State to pay attorney's fees to one of its

school boards, it seems no less incongruous that a local board would teel

the need to sue the State for a violation of the Fourteenth Amendment.”

Id. at 487-88 n. 31, 102 S.Ct. 3203-04 n. 31.

x

A-49

We turn next to the question of whether ASU has a right to

sue the state under Title V1. To our knowledge, no court has

decided this issue. We conclude that no such right of action

exists.

Title VI provides that “[njo person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving federal financial assistance.” 42 U.S.C.A. § 2000d.

In Hardin v. Adams, 760 F.2d 1158, 1163-64 (11th Cir. 1985),

cert. denied sub nom. Grimmer v. Hardin, _— U.S. —_, 106 S.Ct.

530, 88 L.Ed.2d 462 (1985), this Court determined that state

universities such as ASU are agents or instrumentalities of

the state. Nothing in Title VI or its legislative history suggests

that Congress conceived of a state instrumentality as a

“person” with rights under this statute. Title VI provides for

a comprehensive scheme of administrative enforcement, and

the Supreme Court has implicitly recognized a private right

of action for individuals injured by a Title VI violation.’

Absent any indication of Congressional intent to grant addi-

We are persuaded that Seattle School District may be harmonized with the

conclusion of this Court that a creature of the state normally has no

Fourteenth Amendment rights against ts creator. The former Fitth

Circuit in Rogers explained that the Hunter line “adhere{s] to the substan-

tive principle that the Constitution does not interfere with a state's internal

political organization.” Rogers, supra, 588 F.2d at 1070. But Seattle School

Distrect does not trench on a@ state’s political prerogatives. Lt simply holds

that once a state's politic al organization in in place, the state may only

re-organive that structure (such as a state’s delegation of certain educa-

tional decision-making powers to local school boards) consistently with the

constitutional guarantee of equal protection. See Seattle School District, supra,

458 U.S. at 479-82, 102 S.Ct. at 3169-3201.

*We note that at least five justices determined in Uniwersity of California

Regents v. Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733, 2746, 57 L.Ed.2d 750

(1978), that Tithe VI proscribes only those racial classifications that would

violate the equal protection clause. However, we are not persuaded by this

that, because ASU has no Fourteenth Amendment rights, is necessarily has

no Tithe Vi rights. The Court’s analysis in Bakke makes it clear that a

decision on Tithe VI grounds ts, nevertheless, distinct from an exercise in

constitutional interpretation. See id. 438 U.S. at 281, 98 S.Ct. at 2743.

*See Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946,

1957-58, 60 L.Ed.2d 550 (1978).

A-5O

tional nghts under this statute to non-private state subdivi-

sions against the state itself, we decline to infer such a right of

action by judicial fiat.

Our conclusion that ASU has no standing under Section

1983 and Title V1 to seek the injunction sub judice does not

end our inquiry. The standing of the Knight intervenors

remains unchallenged. Thus, we must next determine

whether or not their request tor a preliminary injunction

against the state board of education or its members is barred

by the Eleventh Amendment. We hold that injunctive relief

against the Board itself is so barred, but that such reliet

against Board members tn their official capacities is permit-

ted.

Again. we begin our anlaysis with Section 1983. In general,

the Eleventh Amendment bars suits by citizens against a

state.” Two exceptions to this rule apply: (1) a state may

consent to suitin federal court, and (2) Congress may, unde1

certain circumstances, abrogate a state’s sovereign immunity.

Atascadero v. Scanlon- —— U.S. —, 105 §.Ct. 3142, 3145, 87

L.Ed.2d 171 (1985). One further doctrine, first set out in Ex Parte

Young, 209 U.S. 123. 28 S.Ct. 441, 52 L.Ed. 714 (1908),

permits state officials to be sued in their official Capacities for

prospecuve rehef under certain circumstances, despite the

Eleventh Amendment bar. See Kentucky v. Graham, US.

_—, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985).

The instant case does not fall under either of the first two

exceptions. Alabaina has not consented to suit under Section

1983. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57

L.Fd.2d 1114 (1977) (per curiam). Further, the Supreme

Court has held that Congress did not intend Section 1983 to

abrogate a state’s Eleventh Amendment immunity. Graham,

supra, 105 S.Ct. at 3107 n. 17; Quern v. Jordan, 440 U.S. 332,

99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, the Knight

“The Eleventh Amendment provides that “[t}he judicial power of the

United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted agaist one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.” Jéans v.

Loumiana, 134 US. 1, 10 S.Ct. 504, 33 Lhd. $42 (1890), established that

the amendment also proscribes suits by citizens agaist them own state.

A-51

Board could properly be enjoined under Title VI. We turn

finally to a review of the injunction itself.

Ili

An injunction may be reversed on appeal only for abuse of

discretion by the district court. United States v. Jefferson

County, 720 F.2d 1511 (11th Cir.1983). The Board maintains

that it was prejudiced by insufficient notice and the “sudden”

conversion by the district court of what was originally a

temporary restraining order (TRO) proceeding into a pre-

liminary injunction hearing.

The sufficiency of notice prior to the issuance of a pre-

liminary injuncton is a matter left within the discretion of the

trial court. Corrigan Dispatch Co. v. Casa Guzman, 569 F.2d

300, 302 (5th Cir.1978). In this case, the district court had no

opportunity to exercise its discretion by ruling on the ques-

tion of whether notice was sufficient, since appellate did not

appear to object, seek a continuance, or in any other way

protest the scheduling of the preliminary injunction hearing.

This court generally will decline to review issues not raised in

the district court. Harris Corp. v. National Iranian Radio, 691

F.2d 1344, 1353 (11th Cir.1982).

In any event, we are not persuaded on the merits that the

one to three days’ written notice (depending on which

version is accurate) that appellant received of appellees’

motions for injunctive relief was insufficient. Fed.R.Civ.P.

65(a), which governs notice in such cases, provides only that

notice must be given; it does not specify how much notice is

necessary. As appellant suggests, Granny Goose Foods, Inc. v.

Teamsters, 415 U.S. 423, 434 n. 7, 94 S.Ct. 1113, 1121 n. 7, 39

L.Ed.2d 435 (1974), does indicate that ‘[t]he notice required

by Rule 65(a) before a preliminary injunction can issue

implies a hearing in which the defendant is given a fair

Opportunity to Oppose the application and to prepare for

such opposition.” (In Granny Goose, the defendant received

only same-day informal notice of the hearing by telephone.)

But appellant here does not demonstrate persuasively that it

was prejudiced by short notice, nor does it show how its

intervenors are barred from seeking this injunction against

the state Board under Section 1983.

However, in an injunctive or declaratory action® grounded

on federal law, parties may overcome the state’s immunity by

naming state officials as defendants. Graham, supra, 105 S.Ct.

at 3107 n. 18. The intervenors’ motion for a preliminary

injunction satisfied this requirement by seeking to enjoin

“the Alabama State Board of Education and its members, trom

failing to approve teacher training programs at Alabama

State University [emphasis added].” The motion did not

specify whether the intervenors sued these Board members

in therr official or personal capacities. Although we do not

encourage such omissions, the Supreme Court has indicated

that “[t]he course of proceedings will typically indicate the

nature of the liability sought to be imposed.” /d. 105 S.Ct. at

3106 n. 14; Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 877,

83 L.Ed.2d 878 (1985)

We think it clear that in this case the intervenors sought to

enjoin Board members in their official capacities as state

officers. The Board members’ decision not to approve the

teacher education programs at issue was an official action

consonant with their view of official duty, not one underta-

ken by individuals acting independently of their offices.

Thus, an act representing the execution of government

policy inflicted the injury in this case and may be enjoined

despite the Eleventh Amendment bar. See Monell, supra, 436

U.S. at 694, 98 S.Ct. at 2037.

Since we determine that the Eleventh Amendment permits

the Knight intervenors to secure an injunction against state

Board members under Section 1983 and the Young excep-

tion, we need not reach the difficult question of whether the

*The intervenors’ motion for a preliminary injunction against a state

entity, of course, is not identical to an action for injunctive relief against

such a body. In the latter case, the act to be enjoined is the alleged violation

of federal law sued upon. In the former situation, however, the injunction

may issue against an act that is not itself alleged to be a violation of law, but

one that will instead disturb the status quo sufficiently to make a remedy

for the violation of law doubttul. We assume, despite this distinction, that

the Young exception applies similarly in both cases.

A-53

argument would have been materially different with more

warning. A district court is not at leisure to permit those

against whom injunctions are sought to sharpen their agru-

ments indefinitely.

Appellant’s argument that the lower court erred in con-

verting what was originally a temporary restraining order

hearing into a preliminary injunction proceeding is similarly

unavailing. Again, the Board failed to complain of the

alleged error to the district court. Further, since a TRO and a

preliminary injunction are somewhat similar, it is not un-

common to find that the two have not been properly distin-

guished. See, e.g., Fernandez-Roque v. Smith, 671 F.2d 426, 429

(lith Cir. 1982). The tormer Fitth Circuit has indicated that

“[w]here the opposing party has notice of the application for

the temporary restraining order, such order does not differ

functionally from a preliminary injunction. Dilworth v. Riner,

343 F.2d 226, 229 (Sth Cir. 1965). In short, we cannot

conclude that the conversion of a TRO hearing to a prelimi-

nary injunction hearing — particularly in the case at bar, in

which appellees’ motions in one way or another mentioned a

preliminary injunction as well as a TRO — is so radical a

procedure that it is presumptively an abuse of discretion.

With no showing of actual prejudice to appellant from the

conversion, we must decline to hold the district court in

error.

Finally, we turn to the Board’s argument that appellees

failed to meet their burden of establishing a substantial

likelihood that they would prevail on the merits of the

controversy.'® Specifically, appellant challenges findings

made by the district court: (1) that the Board's failure to

approve ASU prograins was discriminatory and retaliatory,

"Lo secure a preliminary injunction, a plamutt must establish tour

lactors: (Ll) a substantial likelihood that the planutf will prevail on the

ments, (2)4 substantial threat that the plamutt will sutfer irreparable

myers if the mypunction ows not granted, (3) that the threatened injury to the

plantlt outweighs the harm to the detendant, and (4) that the grant of an

Injunction will not disserve the public mterest. Johnson v. United States

Department of Agriculture, TXA bQ2d 774, TSE CL Ath Cir. 1984). Betore this

Court appellant disputes only the lower court’s conclusions on the terest

pom

A-'4

and (2) that the faculty experience requirement for approval

of teacher education programs challenged by ASU in the

severed action was potentially discriminatory.

We agree that the latter finding cannot support injunctive

relief since the likelihood of success on “the merits” consi-

dered there solely involves the merits of ASU's severed

claims, and we have concluded that ASU has no standing to

bring such claims. Further, we regard the finding of retaliat-

ory motive by the Board as simply immaterial to the question

of whether a preliminary injunction should issue, since a

plaintiff in seeking such a injunction is not asked to establish,

among the four factors, anything at all about the motive for

the enjoined act.

Nevertheless, we hold that the trial court’s entry of the

preliminary injunction sought by the Knight intervenors

against the Board was entirely appropriate. The purpose of a

preliminary injunction is to prevent irreparable injury so as

to preserve the court's ability to render a meaningful deci-

sion on the merits. Corrigan Dispatch, supra, 569 F.2d at 302.

See also University of Texas v. Camenisch, 451 U.S. 390, 395, 101

S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1980). Preliminary in-

junctive relief may be necessary to insure that a remedy will

be available. Gresham v. Windrush Partners, Lid., 730 ¥.2d

1417, 1424 (11th Cir. 1984), cert. denied sub nom. Windrush

Partners v. Metro Fair Housing Services, __ U.S. —_, 105 S.Ct.

249, 83 L.Ed.2d 187 (1984). We accept as unchallenged the

district court's factual conclusion that:

(t]he total effect of the Board's 7 roval of most of

ASU's teacher education programs if left unredressed,

will be devastating. Without new students, the College of

Education will be forced to close its doors within three

years. In the meantime, the college's faculty, as well as

the faculty of the College of Arts and Sciences, will be

displaced. The attractiveness of ASU as an unaccredited

ata

ga Me BAe

A-55

institution, both to black and prospective white students,

will be nonexistent."!

Given this finding by the lower court, which is entitled to

substantial deference, see Anderson v. City of Bessemer, 470

U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985), it is clear

that even the partial demise of ASU would impede the ability

of the trial court — and this Court on review — to remedy

any violation of law proved in the state-wide action originally

brought by the United States and joined by the Knight

intervenors. The trial judge was evidently persuaded that the

intervenors had a substanial likelihood of success on the

merits in the latter action, particularly since the judge, who

had heard argument in the state-wide case when the injunc-

tion was entered, later held in the plaintiffs’ favor. Although

we do not intimate anything with respect to this Court’s

ultimate holding on the merits, we are satisfied that the

Knight intervenors made out a case sufficient to support a

preliminary injunction.

Accordingly, we AFFIRM the court’s entry of this injunc-

tion, on behalf of the intervenors, against the members of the

state Board in their official capacities. We REVERSE the

district court’s entry of any injunction on behalf of ASU, or

against the state Board itself.

ALLGOOD, Senior District Judge, concurring specially:

| concur ih the judgment of the court, and add the

tollowing:

No matter how artfully phrased, demands by predomi-

nately black universities, or by persons attempting to assert

their interests, which draw their students, faculty and staff

from predominately white market areas, for preferential

treatment or status as vicarious victims of prior discrimina-

'' The Board at most argues that any harm to ASU resulting trom the

ation of the tormer was self-inflicted — that ts, that ASU provoked

dwapproval of as programs by its “blatantly detiant atutude toward

regulations duly adopted by the State Board of Education.” Whether the

Board was pustified mm its decision not to receruly the programs at issue ts

agam ommatertal here. We sumply conclude that the Board’s decision, if itis

not enyorned, will render a remedy in the main action meaningless

A-56

tion, presuppose that such universities have some legally

protectable interest in remaining predominately black, and

that the predominately black university must be one of the

mechanisms through which prior unlawful racial separation

and its vestiges are corrected. State created insitutions have

no such right, and the State is not limited in that way. It may

well be that problems with the quality of some public

educational institutions are so pervasive and ingrained that

black students will be hurt, not helped by the perpetuation of

those institutions.

This case could go a long way toward deciding the future

of the university system in this State.

If, under appropriate standards and legal principles, lia-

bility of the State of Alabama, or any of its institutions is

upheld, an issue not before us on this appeal, the District

Court will be charged with approving an appropriate re-

medy, giving due deference to suggestions made by state

authorities. See generally Swann v. Charlotte Mecklenburg Board

of Education, 402 U.S. 1, 15-16, 91 S.Ct. 1267, 1275-76, 28

L.Ed.2d 554 (1971). If, in that event, in submitting a plan the

State concludes that the most effective, educationally sound,

and least expensive manner to remedy a violation is to close

some colleges, or to merge them under the boards of the

State flagship institutions, I see no constitutional or statutory

barriers to that being done. Cf. Ayers v. U.S., 769 F.2d 311

(5th Cir. 1985). However, that question must be left for

another day. In the meantime, all parties to this expensive

suit have a duty to and should strive for a negotiated solution

to it.

a