Voting Rights—Failure of Commitment

By Ellen Spears

Vol. 16, No. 4, 1994, pp. 1-3

As we approach the 30th anniversary of the Voting Rights Act, the quiet revolution that the Act has brought to the South is apparent, but public consensus about the racial fairness measures the law provides is shamefully lacking.

Acting on challenges brought by white voters who allege no harm to themselves, recent Supreme Court decisions and a round of redistricting lawsuits threaten to undo the most effective means to date of providing representation for African American and Latino voters who have endured a history of exclusion.

Believing that their 1994 election victory confirms white voter sentiment against race-based remedies, Republicans in Congress intend to implement policy initiatives that will undermine the movement toward racial equity. They started by eliminating the funding of the Congressional Black Caucus and the Congressional Hispanic Caucus.

Another target is “Motor Voter.” Two bills have been introduced to repeal the 1993 National Voter Registration Act; one by Rep. Bob Stump (R-Ariz.) and another by Sen. Mitch McConnell (R-Ky.). Seven states, including three of the most populous—California, Illinois and Pennsylvania—have failed to implement the law. Many of the states which implemented the law on schedule on January 1, 1995, failed to fully enact registration at public service agencies, a shortcoming which will disproportionately impact poor people and people of color.

Since 1965, many white Americans have expressed support for the broad principle of racial fairness, but continue to resist the practical steps necessary to achieve it. The racial chasm is nowhere more apparent than in

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the debate about voting.

Witness the blame numerous commentators have placed on redistricting-specifically the creation of “majority minority” districts—for the Republican takeover of Congress. Scapegoating minority voters for Democratic losses is worse than wrong. This inaccurate view not only undermines support for the Voting Rights Act, it prevents a clear analysis of the Democrats’ reversal of fortunes.

Setting the record straight are two studies, one by Allan J. Lichtman, professor of history at American University, and the other by the NAACP Legal Defense and Education Fund (LDF). As Lichtman noted in a December 7, 1994, essay in the New York Times, “Democrats actually fared a bit better in the nine states with new black districts [Alabama, Florida, Georgia, Louisiana, Maryland, North Carolina, South Carolina, Texas and Virginia] than in the 41 states with no such districts.”

Democratic losses were worse in the U.S. Senate and in state governorships, for which voting is at-large and redistricting obviously plays no role, than in Congress, notes Lichtman. “The Democrats lost 36 percent of previously held Senate seats and about half of the governorships that were up for election in 1994.”

To boot, “even if the Democrats had retained every one of the House seats lost in the nine states that had new majority black districts-in complete opposition to the nationwide Republican surge—the Republicans still would have gained control of the House in 1994.”

The LDF report examines in detail the six districts lost by Democrats in 1994 in Mississippi, Georgia and North Carolina, concluding that “the Voting Rights Act helped save Democratic seats in Mississippi and Georgia, as well as in other states.” Comparing vote totals and the proportion of black population in the districts at stake with those in surrounding districts, the LDF’s analysis shows that had the African American population been spread among the two Democratic districts in northern Mississippi, the Democratic party probably would have lost both districts. The same is true in Georgia. “If the African American population had been spread among all seven Democratic seats in central and eastern Georgia instead of being concentrated …. the Democratic party could well have lost all of the districts.”

While all the long-term trends leading to the Republican takeover of Congress are still being analyzed, one fact is clear: Republicans organized and got out their vote. In mobilizing the surburban white male voters that provided the core of their support, Republican strategists and Christian Coalition allies relied not on a sea change in attitudes, but on exploiting patterns and resentments that have persisted for decades. “Not since 1964—not since Lyndon Johnson—have the majority of white people voted

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with the majority of people of color,” commented civil rights activist Anne Braden at the SRC anniversary meeting November 19.

The Republican animus is not directed just at the civil rights legislation of the 1960s, but at undoing policies that extend back to the New Deal. The goal, says Newt Gingrich ally Vin Weber, is “replacing a sixty-year-old framework.”

The nature of the “framework” that government will provide is at the center of national debate. If civil rights legislation is to be preserved—let alone expanded upon—within that framework, the key tasks in voting rights are at least threefold: defend the gains brought about by the Voting Rights Act; explore voting alternatives that grant full participation to minority voters still unrepresented; and change underlying attitudes that lead to white racial bloc voting, reengaging the battle for hearts and minds of white Americans.

Defend the Gains

Any strategy to defend the gains must understand that white bloc voting remains the major barrier to full democracy and that most of the increase in black officeholding is due to singlemember districts where black voters are in the majority. In a too-little-noticed but very important book published in 1994, Chandler Davidson and Bernard Grofman convened a host of voting rights historians, lawyers, and advocates to document the Quiet Revolution in the South: The Impact of the Voting Rights Act of 1965 (Princeton University Press). In this careful state-by-state survey documenting the success of the Act, Quiet Revolution recounts barriers both deliberately designed and not voluntarily changed. In most cases, as Davidson illustrates in his essay in this issue of Southern Changes [see page 4], single-member districts are the only effective tool for voters seeking to remedy a history of exclusion. Efforts to reject race-based remedies must be countered.

Likewise, the effort to repeal the Motor Voter law must be stopped. Full implementation, including at public service agencies, must be pressed in every state. Any effort to limit expansion of the electorate must be halted.

Explore Alternatives

Lani Guinier, once Bill Clinton’s nominee to become assistant attorney general for civil rights, has begun to bring conversation on ways to remedy minority exclusion in situations that do not lend themselves to single-member districts. Alternative methods, already at work in some jurisdictions, can allow voters to spread their votes among different candidates (cumulative or limited voting) or rank candidates according to preference (preference voting). By such methods, representation can be won for voters from social groups who remain underrepresented under the current system where each candidate must get 50 percent plus one. Alternatives to exclusionary systems must be further explored and tested.

Change Attitudes

But no set of remedies will ultimately succeed if our underlying attitudes remain polarized—if we cannot prepare our hearts and minds for governing in a way that celebrates diversity—including in the privacy of the voting booth.

Writing in Southern Changes in 1992, Julian Bond observed that “many of us recall an understanding [during the 1960s] that the mission of white progressives was to work and organize against racism in white middle- and working-class constituencies. That effort obviously didn’t get very far; the lack of success stemmed at least in part from lack of commitment.”

Failure of commitment remains with us. To get at the root causes that make voting remedies necessary, to succeed at the most difficult business of shortening the distance from professed principle to implementation, to begin rooting out racial demagoguery from elections will require a great deal. It will demand thoughtful new approaches, safe harbors for discussion, careful strategies, determined organizing, and coalition building. Most of all, it will require deciding—as many did to get us this far—that we must act.

Voting Rights and the Second Reconstruction
The Rocky Road to the Present…and Beyond
By Chandler Davidson

Vol. 16, No. 4, 1994, pp. 4-7

The quest for full political equality by people of color in America—and particularly in the South—is entering a critical phase. Troubling voting rights decisions issued by the Supreme Court, as well as the Republican ascendancy in Congress, increase the sense of foreboding among civil rights forces. People are asking, “Where are we, and where are we going?” Answering this requires us to ask as well, “Where have we been?” The 75th anniversary celebration of an organization that has played such an important role in the modern struggle for minority voting rights in the South is a particularly appropriate event at which to address both questions.

The evidence we must assess goes back, at the very least, to the First Reconstruction. To streamline my argument, I want to focus on the problems faced by African Americans in a single state, my home state of Texas.

Texas has long had a lower percentage of black population than any other state in the old Confederacy. The political scientist V.0. Key believed that white resistance to civil rights for blacks increased in direct proportion to the black percentage of the population, other things being equal. When he wrote his magnum opus, Southern Politics, Professor Key therefore singled out Texas in the late 1940s as the Southern state most likely to break free of the shackles of racism and forge a new, progressive trail for the other Southern states to follow. So I want to look at Texas historically, during both the First and Second Reconstructions.

Anglo settlers first came to Texas with their slaves in the 1820s, in spite of Mexican antislavery law, and black servitude lasted there until June 19, 1865, when federal troops arrived in Galveston and emancipation was announced. An all-white constitutional convention, following the minimal requirements of President Andrew Johnson’s reconstruction plan, created a new constitution that denied blacks the vote, prohibited blacks from serving on juries, forbade interracial marriage, and established black codes severely limiting freedmen’s rights in the labor market. This lasted from 1865 until 1869 when, after Congress enacted its Reconstruction laws over Johnson’s vetoes, yet another constitutional convention was held. It was called after congressional action enabled blacks to vote, and they overwhelmingly supported another convention. Had they not turned out massively and voted for the convention, it would not have been held.

Although blacks were only ten of the ninety delegates, a “radical” Republican convention enabled the election of twelve blacks to the legislature in 1870.

For four years—the period of Radical Reconstruction in the Lone Star State—Scalawag Republicans, including blacks, were in control of state government. Among their most significant contributions was the creation of a free, publicly-funded school system—the first in Texas.

Restoration of White Supremacy

Then the Democrats regained control and Reconstruction came to an end. A former Texas governor opined that the election caused “the restoration of white supremacy and Democratic rule.” Yet another constitution was framed, this one abolishing the free publicly funded school system and a number of other Reconstruction reforms. A process of legislative gerrymandering began which gradually whittled away at the black-majority districts, so that by 1898 the legislature contained a single African American member. His major speech in his last session in office attacked lynching, which was enjoying a widespread comeback as a means of forcing blacks out of politics. In the period from 1870 to 1898 over forty legislative seats had been held by Texas blacks, as well as a number of lesser offices. No legislative seat would be

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held again by a black person in Texas until 1967.

By 1900, with the collapse of the Populist revolt, to which black and white Texas farmers rallied in a futile effort to overcome the conservative Democrats’ control of politics, black voters were rapidly being forced out of the electorate through violence, intimidation and, in 1902, passage of the poll tax and laws encouraging the use of the white primary.

African Americans were essentially disfranchised in Texas by 1905, and in spite of numerous efforts funded by the National Association for the Advancement of Colored People, the white primary remained in effect until 1944 when the Supreme Court abolished it as a result of Smith v. Allwright, a case filed in Houston and argued before the court by Thurgood Marshall. No black legislators, of course, held office during the period of disfranchisement.

Although African Americans began to filter back into the electorate after 1944, virtually none was elected to office in Texas until two decades later. In 1964, on the eve of passage of the Voting Rights Act, as few as five African Americans held office at any level, in a state where more than a million black citizens lived, and where in many cities they made up over 30 percent of the population. This paucity of black officeholders was almost certainly the result of intimidation in the rural areas and towns, and white bloc voting in the cities.

The significance of this fact is worth underlining. Virtually no blacks won office in Texas between 1944 – when Smith v. Allwright abolished the white primary and effectively reenfranchised blacks-and 1964, although the number of blacks voting had increased in Texas from less than 75,000 in the former year to 216,000 in the latter year. This is the state, it must be remembered, that Professor Key in 1949 had pointed to as a harbinger of racial progress among the Southern states.

Advent of the Second Reconstruction

Then two things happened. The Warren Court decided a number of important voting rights cases, beginning with Baker v. Carr in 1962; and Congress passed the Voting Rights Act in 1965. In short, the federal government once more intervened in the South, ushering in a Second Reconstruction of electoral politics, with effects much like those in the first.

Literally hundreds of legal battles took place in Texas jurisdictions; struggles over legislative redistricting continued in the 1960s, 1970s, 1980s, and 1990s; the Justice Department was involved across the state of Texas under Section 5 of the act; a plurality of Supreme Court justices tried to restrict the voting rights of minorities in a 1980 decision, which the U.S. Congress overrode two years later; and, from 1966 to the present, conservative whites, including lawyers and judges, frustrated the efforts of blacks and Mexican Americans to elect their candidates to office. Between 1965 and 1994, black legislators again appeared in Texas, and numerous black officials were elected to city, county, and school board posts as well. The number of African Americans holding office increased from about five in 1965 to more than four hundred in the early 1990s. This was primarily the result of federal inter-

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vention during the Second Reconstruction, just as was the election of blacks during the first one a century ago.

Especially noteworthy was the 1972 election to Congress, for the first time in Texas history, of an African American, Barbara Jordan. She and Andrew Young of Atlanta, elected the same year, were the first blacks chosen to represent Southern constituencies in that body in the twentieth century. Today there are seventeen Southern black U.S. representatives.

Three factors were responsible for the rapid growth in black officeholding in Texas since 1966: first, Fourteenth Amendment cases filed by black plaintiffs challenging racial gerrymanderingcases won before the Supreme Court in 1973; second, extension in 1975 of the section 5 preclearance provision of the Voting Rights Act to Texas-an extension that occurred partly because Barbara Jordan had by then become a leader of the House Judiciary Committee; and, third, following efforts of Supreme Court conservatives to undercut the effectiveness of the Fourteenth Amendment in minority vote dilution cases, Congress’s 1982 amendment of Section 2 of the Voting Rights Act paved the way not only for sharp increases in black (and Mexican American) officeholding later in that decade but also, in the early 1990s, legislative and congressional redistricting that increased the number of minority districts in both bodies.

Reconstruction Parallels

The parallels between the First and Second Reconstruction in Texas are striking. In both cases black participation in the system resulted from federal intervention. In both cases blacks were able to win office largely because of the creation of state and local voting districts that have been majority black. In 1995, one can say that black Texans in this century have been able to hold office at the legislative level for about a generation, just as they were in the nineteenth century.

The question now is whether the ability of African Americans to win office in Texas-and the other Southern states-will soon be curtailed, just as it was a century ago. This, of course, is the question raised by the Supreme Court’s 1993 Shaw v. Reno decision and, more recently, by the Republican capture of Congress.

It is a question whose answer eludes us. The ability of blacks to win election in the South, especially at the state legislative level and higher, is heavily contingent upon the drawing of districts that contain a majority of blacks or, in Texas, a majority of blacks plus Hispanics. Indeed, during the Second Reconstruction, hardly any Southern blacks-and then only under very special circumstances won a state legislative seat in a majority-Anglo district. I recently examined the more than eight hundred elections for Texas legislative seats between 1984 and 1992. Only two African Americans were elected from Anglomajority districts. One was elected from Austin, probably the most liberal city in Texas, thanks to its large college population. The other was a Republican.

This pattern is true for the South as a whole. A recent study of Southern state legislative elections by Lisa Handley and Bernard Grofman revealed that less than one percent of majoritywhite districts elected a black to office in the 1980s. That was a decline from two percent in the 1970s, and about the same as for the early 1990s. The same study found that the increase in black legislative officeholding in the South during the 1970s and 1980s was due almost entirely to the creation of new majority-black districts, not to an increasing tendency of whites to vote for black candidates.

Precious few of these more than sixteen hundred legislative districts would have been drawn to include a black majority-or a Hispanic majority-were it not for the Voting Rights Act and a justice Department willing to enforce it. The North Carolina congressional redistricting case, Shaw v. Reno, which raises questions about the constitutionality of strangely shaped districts drawn purposely to elect black candidates, therefore threatens to remove blacks almost entirely from Congress and state legislatures, and from many local jurisdictions as well. Indeed, if the recently expressed views of Justices Thomas and Scalia in Holder v. Hall* were to become the majority view on the Court, blacks might soon be precluded from holding a single Southern congressional seat. Put differently, something very like the end of the First Reconstruction could occur, at least as concerns black officeholding, although black citizens would still be able to vote.

Perhaps the Court will choose a middle way out, however difficult that option would be to square with the

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tortured logic in Shaw. In other words, it seems plausible that the Court might allow minoritymajority districts to be intentionally drawn in the future, but not with the strangely configured boundaries they now have. As a consequence, white Democratic incumbents, who drew those bizarre boundaries not simply to create majorityblack districts but to protect themselves while at the same time satisfying the Justice Department, would lose more black voters from their districts, to the net advantage of Republicans.

In fact, it is probably true that certain Southern districts Republicans won in 1992 and 1994 resulted from majority-black districts being drawn in 1991 or later under the mandate of the Voting Rights Act, although it is highly unlikely that this phenomenon was as common as the popular press would have it. A careful study of South Carolina senatorial redistricting in 1981 revealed that there is sometimes a trade-off between an increase in majority-black districts and a net gain in Republican seats, which is the reason Republicans were often eager to collaborate with minority legislators at redistricting time.

Blaming the Victims

The interesting thing about this tradeoff, however small or large it turns out to be, is that blacks, Hispanics, and their civil rights allies are blamed for the net loss of Democratic seats. But this is a classic case of scapegoating. The people to be blamed are those large numbers of Southern whites who consistently vote as a bloc against black candidates, and hence deny black voters the chance to elect candidates of their own race. Without this white bloc vote, drawing a few districts to protect black candidates would not be necessary.

In summary, at least two possibilities confront us in Texas and the South. The Supreme Court, if Justices Thomas and Scalia prevail, may effectively prevent the purposeful drawing of minoritymajority districts and thus the election of blacks to legislative and congressional seats. Or the Court, if moderates prevail, may only partially restrict the drawing of minoritymajority districts; but to the extent that the Republican tide in the South continues to flow, there will be a tendency to blame the creation of majorityblack districts under the mandate of the Voting Rights Act.

Is there any chance for a more hopeful scenario to unfold? I think there is, but it presupposes a moderate resolution of Shaw. Then, if the Democrats are able to regain control of Congress and, by enacting legislation that succeeds in halting the growth of Republicanism in the South, put an end to the scapegoating of black voters, it may turn out that black officeholding in the former Confederacy will continue pretty much undiminished.

Is this likely? As our pundits never tire of telling us, the American electorate is quite volatile. It is true that a movement toward Republicanism in the South has been underway for more than a generation, due largely to black Southerners’ struggle for the protection of their civil rights and economic security under the aegis of the Democrats, and the resulting exodus of white conservatives from the party. But the nation as a whole has not decisively realigned with the GOP. Unless the Republicans now in Congress turn out to be much more adept at restoring the electorate’s confidence in government than the accession to power of the likes of Newt Gingrich, Jesse Helms, and Strom Thurmond would suggest, it is doubtful that they have a secure lock on American government. But the present is nonetheless fraught with political danger for the friends of minority civil rights, and we would do well to think carefully about our options.

*Editors Note: A Georgia case in which Justice Thomas in a dissenting opinion expressed the view that voting rights challenges should be limited to barriers to registration and voting, not to districting schemes and other measures which disfranchise minority voters.

Chandler Davidson is a professor of sociology at Rice University in Houston, Texas and coeditor, with Bernard Grofman, of Quiet Revolution in the South, The Impact of the Voting Rights Act 1965-1990. This article is adapted from remarks prepared for the 75th Anniversary meeting of the Southern Regional Council in Atlanta, Nov. 19, 1994.

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 AM 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.

The 1994 Lillian Smith Book Awards

By Ellen Spears

Vol. 16, No. 4, 1994, pp. 17-22

The 1994 Lillian Smith Book Awards were presented in Atlanta on November 18 to (from left) John Gregory Brown, winner for fiction, and Henry Louis Gates and John Dittmer, co-winners for non-fiction. Excerpts from their acceptance speeches follow.