914 F.2d 676 (5th Cir. 1990), 88-4103, Ayers v. Allain

Docket Nº:88-4103.
Citation:914 F.2d 676
Party Name:Jake AYERS, Sr., et al., Plaintiffs, Jake Ayers, Jr., Bennie G. Thompson, Leola Blackmon, Lillie Blackmon, Louis Armstrong, Darryl C. Thomas, and Leon Johnson, Plaintiffs-Appellants, and United States of America, Intervenor-Appellant, v. William ALLAIN, Governor, State of Mississippi, et al., Defendants-Appellees.
Case Date:September 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 676

914 F.2d 676 (5th Cir. 1990)

Jake AYERS, Sr., et al., Plaintiffs,

Jake Ayers, Jr., Bennie G. Thompson, Leola Blackmon, Lillie

Blackmon, Louis Armstrong, Darryl C. Thomas, and

Leon Johnson, Plaintiffs-Appellants,

and

United States of America, Intervenor-Appellant,

v.

William ALLAIN, Governor, State of Mississippi, et al.,

Defendants-Appellees.

No. 88-4103.

United States Court of Appeals, Fifth Circuit

September 28, 1990

Page 677

Robert Pressman, Center of Law & Educ., Cambridge, Mass., Alvin O. Chambliss, Jr., Oxford, Miss., for plaintiffs.

Nathaniel Douglas, John R. Moore, Levern M. Younger, Franz R. Marshall, Zita Johnson-Betts, Attys., U.S. Dept. of Justice, Civ. Rights Div., Educ. Opportunities Litigation Section, Linda F. Thome, Jessica Dunsay Silver, Attys., Appellate Section, Civ. Rights Div., Dept. of Justice, Roger Clegg, Deputy Asst. Atty. Gen., Washington, D.C., for U.S.

Mike Moore, Atty. Gen., William F. Goodman, Jr., Paul Stephenson, Ed Davis Noble, Jr., Jackson, Miss., for defendants-appellees.

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

Before GOLDBERG, GEE, POLITZ, KING, JOHNSON, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER and BARKSDALE, Circuit Judges. 1

DUHE, Circuit Judge:

This is an appeal from the dismissal of a lawsuit challenging the racial identity of institutions of public higher education in the State of Mississippi. Ayers v. Allain, 674 F.Supp. 1523 (N.D.Miss.1987) (Ayers

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I ). A panel of this Court reversed and remanded, Ayers v. Allain, 893 F.2d 732 (5th Cir.1990) (Ayers II ), and rehearing en banc was granted, Ayers v. Allain, 898 F.2d 1014 (5th Cir.1990). Finding that the record makes clear that Mississippi has adopted and implemented race neutral policies for operating its colleges and universities and that all students have real freedom of choice to attend the college or university they wish, we affirm.

  1. History

    A detailed outline of the prior history of this case may be found in the opinions of the district court and the panel majority. 2 This is a class action filed in 1975 by black citizens of Mississippi against the Governor of Mississippi, the Board of Trustees of State Institutions of Higher Learning and its members, five historically white institutions of higher learning and their chief administrative officers, the State Department of Education, and the State Superintendent of Education. 3 The plaintiffs alleged that the defendants were maintaining and perpetuating a racially dual system of higher education in violation of the Fifth, Ninth, Thirteenth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. Secs. 1981, 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000d et seq. The United States intervened as plaintiff under 42 U.S.C. Sec. 2000h-2 and alleged violations of the Fourteenth Amendment and Title VI. The plaintiffs sought injunctive relief requiring the defendants to conform Mississippi's system of higher education to the constitutional and statutory mandates. The lawsuit remained under the supervision of a three-judge court for ten years and was transferred to the district court for the Northern District of Mississippi in 1985.

    The district judge ordered the case tried to the court. The plaintiffs directed their complaint to the following components of higher education in Mississippi: student admissions standards and enrollment, university staff composition, institutional mission, provision and maintenance of facilities, allocation of financial resources, curricular offerings and placement of programs, operation of branch programs, allocation of land grant functions, and the composition of the Board of Trustees and its staff. The plaintiffs alleged that the vestiges of a dual, racially discriminatory system of higher education persisted in each of the components. They identified the institutions of higher learning in Mississippi as either historically black institutions or historically white institutions 4 as follows:

    The defendants alleged that the Board and each institution maintained good-faith, nondiscriminatory and nonracial admissions and operational policies with respect to students, faculty, and staff, and that the state's duty to disestablish state-imposed segregation extended no further. The defendants also alleged that any racial identifiability of the institutions could not be attributed to state policies.

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    The district judge conducted a five-week trial and issued detailed and well reasoned findings of fact and conclusions of law. Ayers I, 674 F.Supp. at 1526-63. He stated that the law clearly imposed upon Mississippi an affirmative duty to dismantle its racially dual system of education, but that the scope of the duty was not so broad in the context of higher education as in primary and secondary education. He held that Mississippi was not required to achieve a certain level of racial balance in the various components of higher education, but rather was only obliged to adopt and implement good-faith, race-neutral policies and procedures. He relied upon the reasoning of Alabama State Teachers Ass'n v. Alabama Public School and College Auth., 289 F.Supp. 784 (M.D.Ala.1968) (three-judge court), aff'd, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969) and Bazemore v. Friday, 478 U.S. 385, 407-09, 106 S.Ct. 3000, 3012-13, 92 L.Ed.2d 315 (1986) (White, J., concurring), in which rules governing primary and secondary education were distinguished on the basis of a state's inability to designate college attendance zones and the broader choices available to students in the context of higher education. Ayers I, 674 F.Supp. at 1551-54. The judge's findings and conclusions accorded with this construction of the law, and the plaintiffs have challenged some of those findings and conclusions on appeal. A summary of the district court's challenged findings and conclusions follows:

    The Board of Trustees. The Board of Trustees is charged with the management and control of the institutions of higher learning in Mississippi and consists of thirteen members appointed by the governor. No black was appointed to the Board until 1972, but since 1972 three additional blacks have been appointed and three blacks currently serve. With respect to the Board staff, of the twenty-three persons responsible for overseeing the day-to-day operations of the Board, six are black, and of the fifty staff members responsible for overseeing the guaranteed student loan program, seventeen are black. The district court concluded that the Board had adopted racially neutral hiring policies with respect to its staff. Id. at 1550, 1563.

    Use of ACT scores in student admissions. Shortly after James H. Merideth applied for admission to the University of Mississippi, the Board adopted certain policies to govern admissions to institutions of higher education in Mississippi. 5 Among these policies was the requirement that all students applying for admission take a test prepared by the American College Testing Program (ACT). The ACT requirement continues to this day. In the mid-1970's the historically black institutions did not require a minimum ACT score for admission, while the historically white schools generally required a minimum score of 15 but also provided qualified admission of students with lower scores. In the latter half of the 1970's the Board sought to address concerns about the underpreparation of incoming students, and beginning in 1977 the Board instituted a new policy declining the admission of any student who did not achieve an ACT score of 9. The Board did not adopt high school grades as an admissions component. During subsequent years the Board granted permission to certain historically white institutions to admit on a probationary or exceptional basis students with scores of less than 15. The Board also granted permission to certain historically black institutions to raise the minimum ACT score while preserving the right to admit on an exceptional basis students who fell below the minimum. Id. at 1530-34. The current admissions practices are:

    (1) All incoming students are required to take the secondary school "core curriculum". In grades 9 through 12 students are required to have earned a certain number of units in English, mathematics, science, social science, and an elective course. A particular grade point average is not required. Exemptions from the core curriculum requirement are possible, and the exemption policies are more liberal for admission to the historically black institutions.

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    (2) All Mississippi applicants under 21 are required to take the ACT, and no student who scores below 9 is eligible for admission as a first-time freshman. 6 Within these guidelines the individual institutions maintain different admissions standards. The Board requires a minimum score of 15 for automatic admission to the historically white institutions, although it permits enrollment of up to fifty talented or high-risk students (students presenting a high risk of academic failure) per year per institution with scores below 15. Automatic admission to Mississippi University for Women requires a score of 18, although students with lower scores can be admitted either on an exceptional basis or by achieving a certain grade point average. Automatic admission to Jackson State University, Alcorn State University, and Mississippi Valley State University requires a score of 13, with enrollment permitted for students with lower scores who, for example, are identified as high-risk or talented or who achieve a certain grade point average.

    On average the ACT scores of Mississippi black students are lower than those of Mississippi white students. However, according to...

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