Knight v. State of Ala., 92-6160

• Decision Date: 24 February 1994
• Docket Number: No. 92-6160,92-6160
• Parties: 89 Ed. Law Rep. 65 John F. KNIGHT, Alma S. Freeman, John T. Gibson, Susan Buskey, Carl Petty, Dennis Charles Barnett by his father Arthur D. Barnett, Vonda Cross, Tammi Palmer, Alease S. Sims, Stacey Levise Sims by her parents Levi Sims and Alease S. Sims, Gary Mitchell, Jr., Grover L. Brown, Frederick Carodine, Frankie Patricia Yarbrough, Dr. Charles Edwards McMillan, Horace W. Rice, Anthony Y. Lavonne Thompson, by his mother, Lois N. Thompson, Kreslyon Lynette Valrie by her mother Georgia S. Valrie, Dr. Taylor Byrd, and Dan Tibbs, Jr., individually and on behalf of others similarly situated, Plaintiffs and Plaintiffs-Intervenors-Appellants-Cross-Appellees, v. The STATE OF ALABAMA; Jim Folsom, Governor of the State of Alabama; Defendants-Appellees, The Alabama State Board of Education; John M. Tyson, Jr., Steadman S. Shealy, Jr., Isabelle B. Thomasson, Ethel H. Hall, Willie J. Paul, Spencer Baccus, Victor P. Poole, and Evelyn Pratt, as members of the Alabama State Board of Education, Defendants-Appellees-Cross-Appellants, Wayne Teague, State Superintendent of Education; the Alabama Commission on Higher Education; Jane McDonald, Clyde Foster, Katie Espy, Dr. James D. Grady, III, Charles F. Horton, Ken Lott, Steve Means, Borden Morrow, Frank A. Nix, Richard A. Pizitz, Sr., Philip A. Sellers, and Bob Word, as members of the Alabama Commission on Higher Education; The Alabama Public School and College Authority; G. Robin Swift, as State Finance Director and member of the Alabama Public School and College Authority, Defendants-Appellees, The Board of Trustees for Alabama A & M University; Franklin Perry, Eddie Player, Wayman Sherrer, George Miller, Chris McNair, W. Troy Massey, Robert Hughes, Thomas Fuller, Wayne Dean, Walter Carter, Dinsimore Robinson, and Dr. Oscar Tucker, as members of the Board of Trustees for Alabama A & M University, Defendants-Appellants-Cross-Appellees, The Board of Trustees for Alabama State University; Richard Arrington, Jr., Larue W. Harding,
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1534

14 F.3d 1534

89 Ed. Law Rep. 65

John F. KNIGHT, Alma S. Freeman, John T. Gibson, Susan

Buskey, Carl Petty, Dennis Charles Barnett by his father

Arthur D. Barnett, Vonda Cross, Tammi Palmer, Alease S.

Sims, Stacey Levise Sims by her parents Levi Sims and Alease

S. Sims, Gary Mitchell, Jr., Grover L. Brown, Frederick

Carodine, Frankie Patricia Yarbrough, Dr. Charles Edwards

McMillan, Horace W. Rice, Anthony Y. Lavonne Thompson, by

his mother, Lois N. Thompson, Kreslyon Lynette Valrie by her

mother Georgia S. Valrie, Dr. Taylor Byrd, and Dan Tibbs,

Jr., individually and on behalf of others similarly

situated, Plaintiffs and Plaintiffs-Intervenors-Appellants-Cross-Appellees, v. The STATE OF ALABAMA; Jim Folsom, Governor of the State of

Alabama; Defendants-Appellees,

The Alabama State Board of Education; John M. Tyson, Jr.,

Steadman S. Shealy, Jr., Isabelle B. Thomasson, Ethel H.

Hall, Willie J. Paul, Spencer Baccus, Victor P. Poole, and

Evelyn Pratt, as members of the Alabama State Board of

Education, Defendants-Appellees-Cross-Appellants,

Wayne Teague, State Superintendent of Education; the

Alabama Commission on Higher Education; Jane McDonald,

Clyde Foster, Katie Espy, Dr. James D. Grady, III, Charles

F. Horton, Ken Lott, Steve Means, Borden Morrow, Frank A.

Nix, Richard A. Pizitz, Sr., Philip A. Sellers, and Bob

Word, as members of the Alabama Commission on Higher

Education; The Alabama Public School and College Authority;

G. Robin Swift, as State Finance Director and member of the

Alabama Public School and College Authority, Defendants-Appellees,

The Board of Trustees for Alabama A & M University;

Franklin Perry, Eddie Player, Wayman Sherrer, George Miller,

Chris McNair, W. Troy Massey, Robert Hughes, Thomas Fuller,

Wayne Dean, Walter Carter, Dinsimore Robinson, and Dr. Oscar

Tucker, as members of the Board of Trustees for Alabama A &

M University, Defendants-Appellants-Cross-Appellees,

The Board of Trustees for Alabama State University; Richard

Arrington, Jr., Larue W. Harding, Andrew M. Hayden, Lillian

Ann Hope, Larry H. Keener, Patsy B. Parker, Joe L. Reed,

James A. Smith, and Mrs. Frankye Underwood, as members of

the Board of Trustees of Alabama State University,

Defendants-Appellees-Cross-Appellants,

Ross Dunn, Tommy Gallion, Michael Onderdonk, as members of

the Board of Trustees of Alabama State University; Auburn

University; R.C. Bamberg, Dr. Emory Cunningham, John V.

Denson, Dr. Bessie Mae Holloway, Robert E. Lowder, Michael

B. McCartney, William F. Nichols, F. James Samford, Jr.,

Morris W. Savage, and James T. Tatum, Jr., as members of the

Board of Trustees of Auburn University; Troy State

University; Harold R. Collins, R. Douglas Hawkins, Robert

E. Kelly, Jack W. Wallace, John A. Teague, C.J. Hartley,

Wallace D. Maline, Jr., Robert T. Wilson, Charles B. Martin,

and Russ Campbell, as members of the Board of Trustees for

Troy State University; The University of Alabama; Winton

Blount, Aaron Aronov, Massey Bedsole, Frank Bromberg, Jr.,

O.H. Delchamps, Jr., Garry Neil Drummond, Sandral Hullett,

William Henry Mitchell, John T. Oliver, Jr., Thomas E. Rast,

Yetta G. Samford, Jr., George S. Shirley, Martha H.

Simms, Cleophus Thomas, Jr., Cordell Wynn, John B. Hicks,

and Dr. Thomas A. Bartlett, as members of the Board of

Trustees for the University of Alabama, Defendants-Appellees.

The UNITED STATES of America, Plaintiff, v. The STATE OF ALABAMA; Jim Folsom, Governor of the State of

Alabama; the Alabama State Board of Education; Wayne

Teague, State Superintendent of Education; Alabama A & M

University; a public corporation, Defendants-Appellees,

Alabama State University; a public corporation; Athens

State College, an educational institution;

Calhoun State Community College, an

educational institution,

Defendants-Appellees-

Cross-Appellants,

Auburn University, a public corporation; Jacksonville State

University, a public corporation; Livingston University, a

public corporation; Troy State University, a public

corporation; the University of Montevallo, a public

corporation; the University of Alabama, a public

corporation; the University of North Alabama, a public

corporation; the University of South Alabama, a public

corporation; the Alabama Commission on Higher Education;

and the Alabama Public School and College Authority,

Defendants-Appellees.

No. 92-6160.

United States Court of Appeals Eleventh Circuit.

Feb. 24, 1994.

James U. Blacksher, Demetrius Newton, Birmingham, AL, for Knight, et al.

John C. Falkenberry, Birmingham, AL, for Bd. of Trustees for AL, et al.

Edward W. Allen, Balch & Bingham, Birmingham, AL, T.W. Thagard, Jr., David R. Boyd, Balch & Bingham, Montgomery, AL, for Auburn University.

Walter J. Merrill, Anniston, AL, for Jacksonville State University.

William F. Murray, Jr., Burr & Forman, Birmingham, AL, Bd. of Trustees of Troy State University.

J. Fredric Ingram, Burr & Forman, Birmingham, AL, for Livingston University.

Daniel R. Farnell, Jr., Jeffery A. Foshee, Foshee & Associates, Montgomery, AL, for AL State Bd. of Educ., Its Members, Gainous, Athens State College, and Calhoun State Community College.

C. Glenn Powell, Norma M. Lemley, Stanley J. Murphy, Office of Counsel, Tuscaloosa, AL, for Bd. of Trustees of University of AL.

Maxey J. Roberts, Mobile, AL, for University of South AL.

Jack W. Selden, Caryl P. Privett, Asst. U.S. Atty., Birmingham, AL, Mark L. Gross, U.S. Dept. of Justice, Washington, DC, for U.S.

Carl E. Johnson, Jr., Bishop, Calvin, Johnson & Kent, Birmingham, AL, for University of Montevallo.

John E. Grenier, Robert D. Hunter, Rebecca S. Dunnie, Lange, Simpson, Robinson & Somerville, Birmingham, AL, for State of AL, Jim Folsom, AL Com'n on Higher Educ. & Its Members, AL Public School & College Authority, and James H. Rowell.

Ernest N. Blasingame, Jr., Florence, AL, for University of North AL.

Joe R. Whatley, Jr., Cooper, Mitch, Crawford, Kuykendall, & Whatley, Birmingham, AL, for Bd. of Trustees of AL A & M University.

Solomon S. Seay, Jr., Montgomery, AL, for Bd. of Trustees for AL State University and Individual Members.

Fred D. Gray, Gray, Langford, Sapp, McGowan & Gray, Tuskegee, AL, Armand Derfner, Charleston, SC, for AL State University.

Appeals from the United States District Court for the Northern District of Alabama.

Before ANDERSON and BLACK, Circuit Judges, and NANGLE ^*, Senior District Judge.

ANDERSON, Circuit Judge:

This lawsuit challenges the structure of and allocation of resources under Alabama's system of public higher education, charging that the State of Alabama and the other defendant institutions have not fulfilled their obligation to remedy vestiges of past de jure segregation that remain in the current system. In December 1991, following a bench trial, the district court found liability and ordered the state defendants to take various remedial measures. Plaintiffs filed this appeal challenging several aspects of the district court's decision. Then, in June 1992, the Supreme Court decided United States v. Fordice, --- U.S. ----, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), the Mississippi higher education desegregation case. Fordice was the Court's first pronouncement on the constitutional standards governing liability and remedies for past de jure segregation in the higher education context. For the reasons set forth below, we affirm in part, reverse in part, vacate in part, and remand the case to the district court.

I. BACKGROUND

A. Overview History of Access by Blacks to Public Higher Education in Alabama

The district court opinion sets forth in detail the history of the role race has played in public higher education in Alabama. See Knight v. State of Alabama, 787 F.Supp. 1030, 1065-1153 (N.D.Ala.1991). In very broad terms, for more than a century following its admission to the Union in 1819, Alabama denied blacks all access to college-level public higher education and did so for the purpose of maintaining the social, economic, and political subordination of black people in the state. Id. at 1066-95. Until Reconstruction, all education of enslaved black persons was criminalized in Alabama. Following Reconstruction, blacks were excluded from the universities attended by whites, relegated instead only to vastly inferior institutions that did not even begin to offer college-level courses until required to do so by a 1938 Supreme Court decision. Although they were upgraded somewhat beginning in the 1940's, the institutions to which blacks were restricted by state law continued to be allocated a radically disproportionately small share of the resources devoted by the state to public higher education. In the 1960's, federal courts finally forced the white institutions to admit their first black students. Over the succeeding three decades, although increasing numbers of black students have been admitted to historically white institutions ("HWIs"), their representation in the student bodies of the majority of such four-year universities, notably the state's "flagship" research institutions, the University of Alabama and Auburn University, has remained proportionally quite low. See id. at 1063, p 17. A significantly disproportionate share of black Alabamians has continued to attend the historically black institutions ("HBIs") and those institutions have attracted relatively few white students. See id.

B. History of this Case

Originally filed in 1983, this case has been passing back and forth between the district court and the court of appeals for ten years and has a complicated procedural history. For an account of that history, see the opinion of the district court, 787 F.Supp. at 1047-51. Briefly, the action was originally instituted by the United States, exercising its statutory authority to bring suit to enforce Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq. A class of private plaintiffs represented by John F. Knight and other named plaintiffs who had previously filed a separate parallel...