Twenty Years in the Making and Still Unresolved: Ayers Desegregation Suit Has Far-Reaching Impact on Black Colleges

By Faye McDonald Smith

Vol. 16, No. 4, 1994, pp. 8-11, 14-16

In the heart of Dixie, publicly supported black colleges and universities in Mississippi have been dissected, diluted, or dismantled-on paper-for the past twenty years. Now, many people are concerned and outraged that the breakup of these institutions may actually occur, if proposed changes to address desegregation issues are implemented.

Race, Mississippi politics, and the survivability of black colleges make a volatile mix that is only part of a complicated, long-standing lawsuit that decries a dual educational system for white and black students. Ayers v. Fordice has slogged through the courts for two decades, yet is still not resolved. The case reached the Supreme Court in 1992, was remanded back to the lower courts for specific remedy, and is expected to wind its way once again before the nation's highest court.

For now, plaintiffs and defendants are awaiting a lower court ruling on their separate proposals regarding the restructuring of white and black publicly funded colleges and universities. Of particular concern to the plaintiffs is the preservation of traditionally black institutions and the accessibility of higher education to black students.

Ayers has taken on a regional significance far beyond Mississippi, as other Southern and border states are waiting to see how the court ruling may impact their own desegregation plans. James Lyons, president of Jackson State University, one of Mississippi's three public institutions of black higher education, describes Ayers as "the case that will determine the future of Historically Black Colleges and Universities (HBCUs) in this country."

The case was filed in 1975 by Jake Ayers, Sr., on behalf of his son and several other students attending Alcorn State University. A civil rights activist and former sharecropper, Ayers charged that Mississippi discriminated in its educational policies by offering a dual educational system for whites and blacks, with black schools, such as Alcorn, receiving inferior resources and facilities. Ayers died in 1986 at the age of 66; Fordice is the current governor of Mississippi.

Of the state's eight public colleges and universities, five operated exclusively for white students and three operated exclusively for blacks. Federal law mandated that this system of de jure segregation be dismantled. The private plaintiffs in Ayers, along with the U.S. Justice Department, contended that Mississippi had failed to correct this wrong. In 1987 the trial court ruled in favor of Mississippi; in 1990 the Fifth Circuit Court of Appeals also ruled that the state had fulfilled its affirmative duty to dismantle its segregated system by adopting good-faith, racially neutral policies that let students attend institutions of their choice. The plaintiffs appealed to the Supreme Court, which ruled in 1992 that the lower courts had used the wrong legal standard and that the state must do more to eliminate the vestiges of a segregated system.

The Supreme Court ruling mentions four obvious though not exclusive "remnants of the prior system" that the lower court should consider: admission policies, duplication of programs, mission statements, and continued operation of all eight public universities.


A Wide Divergence of Interpretation


Ironically, both plaintiffs and defendants have declared the '92 Supreme Court ruling as victories for their sides. The plaintiffs point out that the Court agreed with them that Mississippi's university system continues to have segregative and harmful effects. On the other hand, the defendants, trustees of the state's Institution of Higher Learning (the State College Board), emphasize that the Court rejected the plaintiffs' demand for upgrading of the black institutions-Jackson State, Alcorn State, and Mississippi Valley-"solely so that they may be publicly financed, exclusively black enclaves by private choice." One could argue, though, that to "enhance" black colleges would certainly be permissible within the Supreme Court guidelines, so long as meaningful numbers of white students are in attendance at those schools.

Clearly, there is plenty of room for interpretation of the Supreme Court ruling, which in many ways only raised new questions and assured further litigation by


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directing the lower courts to sort out these issues.

At the core of Ayers is the issue of sovereignty and the right-to-exist for publicly supported black colleges. Alvin Chambliss, attorney for the plaintiffs through the office of the Northern Mississippi Rural Legal Services, thinks that desegregating the state's higher education system can be done while also preserving historically black schools. For instance, he says that just as the University of Mississippi-Ole Miss-is white-dominated and whitecontrolled even though it has black students, black schools should be able to maintain black control while also having a sizable number of white students and faculty. "But white folks want total liquidation of these black schools with nothing in their place," states Chambliss. "They say that the only way you can have total desegregation is if black schools are dismantled, or stay around as a part of your heritage to be a beacon of hope for black people in a very limited way. I think that's wrong. Black schools should be equal partners in the system of higher education. They do best what American education was designed to do: research and teach."


Special Role of Black Colleges Cited


Indeed, the special mission of HBCUs is frequently raised as the main reason not only to maintain but also strengthen black schools. Delores Spikes, president of Louisiana's predominantly black Southern University system, which is also facing court challenges regarding desegregation, says that the unique culture at HBCUs provides a special delivery mode of instruction. "Our mission is not only to provide opportunities to young people who wouldn't otherwise have them, but also to be a competitor among other white and (private) black schools. The subject of closure in states where the college-going rates are lower than the national averageescapes me." Of the 107 black colleges and universities in the nation, nearly half receive state funding.

Spikes says that HBCU status does not mean a school has to be mostly black, but that by history it is. She points out that HBCUs were not established because blacks were trying to separate from whites; but the other way around. Indeed, attorney Chambliss has reiterated that black schools in Mississippi, as elsewhere in the South, were established bylaw, not by choice, because the state refused to educate black students alongside whites. He says that for Mississippi and the State College Board to now threaten black schools with outright dissolution or merger with white schools would place an undue and unjust burden on black colleges to remedy the segregation that the state itself created. "In essence, the proposal submitted by the Board is that the Negro problem will be solved by killing off black folks," says Chambliss, who is known for his use of inflammatory language and courtroom dramatics to underscore his arguments.

A few months after the June '92 Supreme Court ruling, the State College Board submitted a proposed desegregation remedy, recommending that black Mississippi Valley merge with Delta State University and form a new institution called Delta Valley (with the Mississippi Valley campus converted into a prison); that black Alcorn State be merged with Mississippi State; and that predominantly black Jackson State emphasize graduate work.


Black Student Enrollment Dropping


Chambliss views that proposal with disdain, arguing that the downsizing of the system adversely affects black students. According to his data, there were seventeen thousand black students in the system at the time of the


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Supeme Court ruling; now there are thirteen thousand. "They're trying to get the system under ten thousand blacks," he claims, "and in the fall of '95, the real numbers will show up. The impression given to the public is that if you get rid of or do whatever you do to black schools, there's a corresponding increase of black students in white schools. That's not true. They don't go to white schools. They go to the schools of last resort or they don't go at all."

In its initial proposal, the State College Board also recommended other mergers, including that of predominantly white Mississippi University for Women with the University of Southern Mississippi. There was criticism that this merger was recommended primarily to blunt the expected outcry against the proposed closure and/or merger of black schools. The State College Board, however, insisted that its goal was a plan that complied with the directive of the Supreme Court, and that in no way were elements of that plan designed to deliberately harm black colleges or serve as a smokescreen to camouflage such an intent. "The Board has to think of students first and higher education first," says W. Ray Cleere, Mississippi Commissioner of Higher Education, who as a named defendant says he cannot comment on specific elements of the case now before the judge. "The Supreme Court ruling has required that we look at the entire history and organization of higher education in our state," says Cleere. 'We've worked with staff and employed a lot of consultants to ... put forth proposed remedies that would best serve the broadest section of the population."


Sides Too Far Apart to Settle


Over the years, U.S. District Judge Neal Biggers had urged the plaintiffs and the defendants to work out a settlement that would satisfy the main concerns of each side, while also addressing desegregation. However, negotiations broke down when it became apparent that opposing positions were so rigid as to make compromise impossible. With settlement seemingly out of reach, the case went back to Judge Biggers, who, during the fall of 1994, indicated he would visit each campus and inspect its facilities before making a decision. It is expected that it will take several months for judge Biggers to review the lengthy trial documents and consider the proposals set before him by the plaintiffs and the State College Board.

The Department of Justice's Office of Civil Rights has issued updated criteria that the burden of desegregation should not be borne by black schools and black students. Some people have taken solace in the OCR guideline, believing that it offers a degree of protection against a willy-nilly disruption of black colleges. But others believe that, as with many aspects of Ayers, there can be various interpretations, and that what may seem burdensome to some will not trouble others.

The Board has made some changes from its initial proposal, focusing more on mergers than outright closures; however the plaintiffs have long maintained that the state's three HBCUs should remain open and be strengthened. Their proposal calls for Jackson State to operate a law school and to be given new programs to gain parity with the University of Mississippi, Mississippi State, and Southern Mississippi. The plaintiffs' proposal also calls for Jackson State to take over the University of Mississippi's allied health programs, nursing school, and medical school. "Jackson State is an urban institution and should be a comprehensive university," states Chambliss. "There's not one black state-supported medical school in America, and that didn't happen by chance."

The plaintiffs' proposal recommends that Alcorn gain technological and agricultural programs from Mississippi State, and become an equal recipient of land grants; and that Mississippi Valley be enhanced in the area of health sciences, have its nursing school restored, and offer extensive remedial education, since it serves a high proportion of the poorest students in the state.

Meanwhile, the Justice Department has submitted its own proposed remedy. Its proposal supports the continuance of all eight state-supported schools, but contains several recommendations that the private defendants dispute, such as that Hinds Junior College be placed under the jurisdiction of Jackson State. In fact, Chambliss and the private defendants regard the Justice Department as a somewhat unhelpful ally that mostly has muddied the waters. The tension between the two groups of plaintiffs could be seen during a hearing last May when attorney Alvin Chambliss requested that his opening statement on behalf of the private plaintiffs be separated from the time allotted for Justice Department attorneys. However, Judge Biggers ruled that attorneys for both sets of plaintiffs had to share the same forty-five minutes. Chambliss is clearly irritated that judge Biggers has bought the defendant's position that the private and public plaintiffs are the same. Chambliss states that while he represents the interests of 350,000 black Mississippians, the Justice Department represents whomever is in the White House.

The Justice Department first intervened in the case during the Bush Administration, after the DOJ Office of Civil Rights had reviewed Mississippi's higher education system under Title VI of the 1964 Civil Rights Act, and found it unsatisfactory. For Chambliss and the private plaintiffs, the involvement of the Justice Department has been a mixed blessing. While it has added further cre-


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dence to the charge that Mississippi has a biased higher education system, it has created unwarranted conflicts on matters of remedy and process.


Disunity in the Plaintiff Ranks


Even the private plaintiffs are not always unified, Chambliss has been described as bombastic, confrontational and uncompromising, which has complicated efforts toward a negotiated settlement. Others regard Chambliss's outspoken style as an ideal fit for the kind of passionate, unwavering advocacy that is needed for black colleges. What has been most frustrating for Jackson State President Lyons is that numerous opportunities to discuss issues of importance to black colleges, such as duplication, breadth of academic programs, and how to make HBCUs more attractive, have been consumed by the ever-present emotional issue of closures and mergers. "I don't think it serves the state well to have this cloud of Ayers over us," he says.

Lyons and the presidents of Alcorn and Mississippi State are in especially tenuous positions because their institutions are governed by the State College Board. "Our board represents the defendants in this case," states Lyons, "but our alumni, elected public officials and friends of the university are on the other side. It puts us in a difficult situation."


Administrators in Holding Patterns


In addition to walking the fine line between the Board and their university constituencies, Lyons and other black college presidents also have to cope with the day-to-day uncertainties of the prolonged Ayers litigation. Will the schools receive a windfall from the state to develop new programs and new facilities? Or, if the plaintiffs win in the next Court ruling, will that decision be appealed and reversed? In some instances, stagnation and paralysis have taken hold. "There have been debates among our board members as to whether to approve new programs," says Lyons. "In fact, I can document that program approval has been held up in some states as far as New York, where officials are waiting to see what's going to happen in this case. That's the impact of Ayers."

Commissioner Cleere agrees that the Ayers litigation has been disruptive to higher education in Mississippi and throughout the South. He says he has a continuing dialogue with colleagues in other areas who have wondered whether to proceed with certain program changes that may be affected by the fallout. The enormous amount of time and energy spent on the issues surrounding Ayers has certainly taken its toll. "I know of no one who is not exhausted by the process," says Cleere.

Why has the case dragged on for so long? One reason is that it originally involved a claim against the universities and the junior colleges, but the courts later bifurcated it, dividing it into two parts. Also, the many efforts to reach an out-of-court settlement, the information-gathering by the Department of Justice, and the appeals process itself all consumed substantial time.

But attorney Bill Goodman, who has served as lead counsel for the defendants since 1981, thinks there is a more underlying cause for the endless litigation. Over the years, new priorities and demands have come to the forefront, creating a lawsuit that involves issues that are quite different from twenty years ago. "The case now is about how much high school curriculum ought to be taught in colleges," says Goodman. "The other side is pushing institutional interests, when they ought to be pursuing individual [student] interests." Goodman thinks that while plaintiffs were once focusing on making it easier for black students to get into white colleges, now that it's happened, they're saying 'it's a trick—you're only doing that so historically black colleges will lose their enrollment.'" Goodman says he applauds the role of black colleges in American society and understands why people feel so strongly about them. But he says the plaintiffs can't have it both ways—on the one hand arguing in court that white schools should be more open, while advocating more funding for black colleges. "These arguments for funding need to be made in the legislative arena rather than in the judicial," he states.

Board member Sidney Rushing, who was chairman at the time of the initial proposal by the Board, says that Ayers has taught him how hard the issue of race is. "Everyone is suspicious of what we're trying to do, and the black community feels we represent another effort to eliminate an endangered species." Rushing, who is black, has been labeled an Uncle Tom, a sell-out, and other unflattering names because of his voting with the Board's position. "I'm not there to be popular," he states. "Basically, it's a matter of finance and administration. I understand the need for quality education because I'm out where the rubber hits the road. I know what students must have in order to be competitive."

According to Rushing, even state-supported schools need additional outside funding, and he cites predominantly white Mississippi State for successfully raising $50 million recently. He acknowledges that while Mississippi has not been equitable in its distribution of resources, the other side of the coin is that there has been little alumni support of HBCUs. Rushing maintains that for black schools to remain viable, they must generate significant funding beyond what might be forthcoming from the


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state. "We've got to learn how to support our institutions."


Media Blamed for Fanning Flames


Besides the sensitive issue of race itself, which alone creates charged emotions and flares of distrust, Rushing blames the media for fanning the flames of hysteria. He recalls how at one point the named defendants, which included Board members and all the presidents of historically white universities, went into closed executive session for deliberations, which was permissible by state law. The press, he claims, hammered them for that, leaked incorrect information and helped stir up myths and untruths. "We were under a gag order and couldn't talk," says Rushing. "When people can't get information, they use their imaginations. We were trying to work out a compromise, but the only issue the press covered was that the black college presidents weren't invited; they didn't mention that the lawyers had recommended that only the named defendants be present. The headlines in the media read something like 'black college presidents thrown out of deliberations.' You can imagine the uproar."

There were other rumors, such as that Jackson State University would be closed, although Rushing insists that closure of Jackson State was never an issue. Still, to some people the words "merger" and "downsizing," tossed about by the Board, were euphemisms that attempted to mitigate what they perceived as the Board's proposed slashing of black colleges.

There is a built-in irony in Ayers, in that it was filed by a black man in an effort to secure more equitable resources for his son's college; yet it may actually be the catalyst for the elimination of public black colleges as they exist today. While enhanced programs and facilities would be welcomed and are long overdue, there are some who voice concern that the colleges may lose their special ability to nurture and support black students in ways that more-integrated schools have been unwilling or unable to do.


Case Goes Beyond Enrollment


Academic and legal scholars seem to agree that even though the final word on Ayers has not yet been written, its court rulings so far indicate a clear shift in the shape and form of historically black public colleges and universities. In order to continue to receive state funding and to be eligible for enhancement resources, black colleges and universities must more fully desegregate throughout their faculty and student population. There is a movement towards bringing in special programs and curricula that will attract a more diverse student body. For instance, at Jackson State, a white recruiter sends out the message that white students are welcomed, and already about 40 percent of Jackson State's graduate students are white.

Attorney Chambliss also acknowledges that Ayers is not about preserving exclusively black public colleges, but expanding access to higher education, and assuring that HBCUs receive appropriate funding for academic programs and campus facilities that will enable them to compete with white institutions. "We're against all-white and all-black schools," states Chambliss. "I don't believe in racial separation. I think Jackson State can exist being black controlled with a sizable number of white faculty and students, and someday maybe even have a white president—so what?" But, Chambliss notes, the legacy of racism makes it unlikely that predominantly white schools would play by the same rules. "Can you imagine Ole Miss with a black president?" he asks. "People would die."

Still, the "look" of a more fully desegregated system means that there will be less racial identifiability among white as well as black colleges. For some educators, what is most important is not just that white schools have more black students and vice versa, but that there is equal access of opportunities for students at all levels.

The academic community is eagerly awaiting a report on higher education desegregation forthcoming from the Southern Education Foundation. According to Elridge McMillan, president of SEF and co-chair of the Foundation's Panel on Educational Opportunity and Post-Secondary Desegregation, the report uses Ayers as the starting point, but transcends the specific facts of the case and looks beyond the legal rationale of institutions. "Our approach is student-centered," says McMillan. "The needs of students must be paramount in fashioning strategies to ensure equal opportunity in higher education." Lisle Carter, vice-chair of SEF's higher education panel, says that the report explores the opportunities and obstacles of a student entering college, and once in, of staying there. "We look at the linkage between grades K-12 and college, and examine the responsibility of the college/university system in respect to that."

The report will also recommend that whatever reforms and desegregation remedies are considered, it is critical to have the highest levels of governance and leadership included in the process, along with the academic community and strong citizen participation. "For change to work, it has to be collaborative," states McMillan.

Meantime, Ayers continues its painfully slow journey through the courts. The most recent hearing in December dealt with the plaintiffs' request for a preliminary injunction on new admission standards. The Board wanted to implement a policy that would change the ACT (Ameri-


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can College Test) minimum score of 18 at white schools and 15 at black schools—to a system-wide score of 16, or a grade point average of 3.2. Chambliss has argued that the data indicates that those students who have achieved a 3.2 GPA are identical to those making a 16 or above on the ACT, and that more black students would be ineligible for admission. The Board's position was that it is trying to comply with the Court ruling to make the admissions process more uniform.


Return to Supreme Court Expected


Defense attorney Bill Goodman says that people forget that the reason the state has a dual standard was because black college presidents requested it back in the seventies, to compensate for the inferior elementary and secondary educations that had been afforded black students, and to increase the rate of black student admissions. "No one's happy with what's on the table from the State College Board," says Goodman. "Mississippi State now has a lower standard, and Mississippi Valley is concerned that with a higher standard, its enrollment will drop." Judge Biggers subsequently enjoined the State College Board from implementing the new standard until his rulings on the desegregation proposals, expected during the first quarter of 1995.

When will it all end? Most likely, not until Ayers comes again before the Supreme Court. Chambliss states how Brown v. Board of Education was first presented before the Supreme Court on a liability issue, and then later came up on remedy. He predicts the same pattern for Ayers. Now, as Judge Biggers considers the desegregation proposals before him, it is expected that whoever loses will appeal to the Fifth Circuit Court, and, if needed, to the Supreme Court.

So it would be unwise to hold one's breath. One educator who has carefully followed the case stated facetiously that if the litigation continues at this rate, Ayers might be marking its twenty-fifth— anniversary—with no resolution in sight. Hopefully not. Few people would regard that as a passage of time worth celebrating.

Faye McDonald Smith is a writer living in Atlanta. She frequently covers business and educational issues.

Sidebar: State-Funded Historically Black Colleges and Universities

Compiled by Jeffrey Leak

Vol. 16, No. 4, 1994, p. 10

Alabama

1. Alabama A & M University, Normal

2. Alabama State University, Montgomery

3. S.D. Bishop State Community College, Mobile

4. J.F. Drake Technical College, Huntsville

5. Lawson State Community College, Birmingham

6. Trenholm State Technical College, Montgomery

Arkansas

7. University of Arkansas at Pine Bluff, Pine Bluff

Florida

8. Florida A & M University, Tallahassee

Georgia

9. Albany State, Albany

10. Fort Valley State College, Fort Valley

11. Savannah State College, Savannah

12. Atlanta Metropolitan College, Atlanta

Louisiana

13. Grambling State University, Grambling

14. Southern University A & M College, Baton Rouge

15. Southern University New Orleans, New Orleans

16. Southern University Shreveport, Shreveport

Mississippi

17. Alcorn State University, Lorman

18. Jackson State University, Jackson

19. Mississippi Valley State University, Itta Bena

20. Hinds Junior College, Utica

North Carolina

21. Elizabeth City State University, Elizabeth City

22. Fayetteville State University, Fayetteville

23. North Carolina A & T State University, Greensboro

24. North Carolina Central University, Durham

25. Winston-Salem State University, Winston-Salem

South Carolina

26. Denmark Technical College, Denmark

27. South Carolina State University, Orangeburg

Tennessee

28. Tennessee State University, Nashville

Texas

29. Prairie View A & M University, Prairie View

30. Texas Southern University, Houston

Virginia

31. Norfolk State University, Norfolk

32. Virginia State University, Petersburg

West Virginia

33. West Virginia State College, Institute

34. Bluefield State College, Bluefield

Sidebar: Similar Issues in Alabama

By Staff

Vol. 16, No. 4, 1994, p. 9

Lawyers for Alabama's HBCUs spent much of February 1995 in a Birmingham federal courtroom arguing their own twenty-year-old higher education desegregation case. When it became clear in the 1960s that desegregation could no longer be avoided, both Auburn University and the University of Alabama built extension campuses in the front yards—as it were—of Montgomery's Alabama State University and Huntsville's Alabama A&M University. Over the ensuing decades, millions of dollars that could have gone for improvements at the predominantly black schools were spent instead to develop competing programs at Auburn University at Montgomery (AUM) and the University of Alabama at Huntsville.

Interestingly, civil rights lawyer Fred Gray lost a 1968 suit to block construction of AUM. In 1983, Gray was among the lawyers who filed Knight v. Alabama, arguing that the state was still operating a dual system of higher education based on race. Over the next decade several Alabama judges were recused from this case, and finally it was taken over by Judge Harold Murphy of Rome, Georgia. In a 1991 ruling, Murphy agreed with plaintiffs that there were still vestiges of discrimination in Alabama's higher education system. For the past three years, Murphy has tried unsuccessfully to get the parties to settle the case. Finally, in January 1995, he began a new hearing, and, as this issue of Southern Changes went to press, was making statements from the bench that indicated he was close to imposing a solution.