Alabama State Teachers Ass'n v. ALABAMA PUB. SCH. & COL. AU.

• Decision Date: 26 July 1968
• Docket Number: Civ. A. No. 2649-N.
• Citation: 289 F. Supp. 784
• Parties: ALABAMA STATE TEACHERS ASSOCIATION, a corporation; Alvin A. Holmes; William Sankey; Albert Harris; Sylvester Pressley; and Joe L. Reed, on behalf of themselves and all others similarly situated, Plaintiffs, v. ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY, a corporation et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

289 F. Supp. 784

ALABAMA STATE TEACHERS ASSOCIATION, a corporation; Alvin A. Holmes; William Sankey; Albert Harris; Sylvester Pressley; and Joe L. Reed, on behalf of themselves and all others similarly situated, Plaintiffs, v. ALABAMA PUBLIC SCHOOL AND COLLEGE AUTHORITY, a corporation et al., Defendants.

Civ. A. No. 2649-N.

United States District Court M. D. Alabama, N. D.

July 26, 1968.

Fred D. Gray, of Gray, Seay, Langford & Pryor, Montgomery Ala., and Morris S. Dees, Montgomery, Ala., for plaintiffs.

MacDonald Gallion, Atty. Gen., Gordon Madison, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for Alabama Public School and College Authority and its officers.

James J. Carter, of Hill, Hill, Stovall & Carter, Montgomery, Ala., and Thomas D. Samford, III, Samford & Samford, Opelika, Ala., for Members of Board of Trustees of Auburn University, and Board of Trustees of Auburn University.

Before GEWIN, Circuit Judge, and JOHNSON and PITTMAN, District Judges.

FRANK M. JOHNSON, Jr., District Judge:

The plaintiffs in this class action seek to prevent the State of Alabama from constructing and operating a four-year, degree-granting extension of Auburn University in the City of Montgomery, Alabama. Plaintiffs originally sought a declaratory judgment as to the invalidity of and an injunction against any action under or pursuant to Alabama Act No. 243 of 1965 and Alabama Act No. 403 of 1967.¹

Jurisdiction is invoked pursuant to 28 U.S.C. § 1343 and 28 U.S.C. § 1331. Plaintiffs seek a declaratory judgment that Act No. 403 of 1967 is unconstitutional and also seek an injunction against the enforcement, operation and execution of the said act. A three-judge court was convened to hear this cause pursuant to 28 U.S.C. §§ 2281, 2284.

The defendant Alabama Public School and College Authority is a corporation formed by the defendants the Governor, the State Superintendent of Education, and the Director of Finance pursuant to Alabama Act of 1965 No. 243. Defendant is authorized, inter alia, "from time to time to sell and issue its bonds, not exceeding One hundred sixteen million dollars ($116,000,000) in aggregate principal amount, for the purpose of providing funds for construction, reconstruction, alteration, and improvement of buildings and other facilities for public educational purposes in the State * * *." Alabama Acts 1965, No. 243, § 8. Section 10 of the Act sets out detailed appropriations of the authorized monies to the various public colleges. Alabama Acts 1967 No. 403 authorizes the defendant Authority to issue and sell additional bonds in the principal amount of $5,000,000 for the purpose of constructing, equipping, establishing, creating, supporting and maintaining a four-year college at Montgomery under the supervision and control of defendant Board of Trustees of Auburn University.

Plaintiff Alabama State Teachers Association is a nonprofit corporation whose membership consists of approximately 10,000 Negro teachers, a majority of whom are graduates of Alabama State College, located in Montgomery, Alabama, and many of whom are instructors and teachers at state-supported Negro colleges and schools in Alabama. Additional plaintiffs are Negro students and alumni of Alabama State College and the Executive Secretary of Alabama State Teachers Association.

This cause is now submitted upon the pleadings, several motions to dismiss and supporting briefs, the testimony of numerous witnesses and accompanying exhibits and post-trial memoranda.

The plaintiffs first contend that Act No. 243 designates certain of the schools named therein for use by members of that class or race of persons commonly referred to as Negroes. Racial classifications are always suspect and subject to the most rigid scrutiny and in most cases are irrelevant to any acceptable legislative purpose. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed. 2d 1010 (1967); McLaughlin v. State of Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). We do not reach the issue, however, because plaintiffs claim no injury due to and request no relief from the operation of that statute. We will, however, as plaintiffs request, consider the racial classification set forth in Act No. 243 for whatever evidentiary weight it may have on the question of the constitutionality of Act No. 403.

Plaintiffs' challenge to Act No. 403 proceeds on two grounds. First they argue that to the extent that this act authorizes the sale of bonds and the distribution of the proceeds thereof to Auburn University to be used for the "support and maintenance" of such college for each of the fiscal years ending September 30, 1968 and September 30, 1969, Act No. 403, when read in conjunction with § 11 of Act No. 243, constitutes "a pledge of revenues of future fiscal years for the purpose of obtaining funds with which to meet current operating expenses," and therefore contravenes Constitution of Alabama of 1901, Art. 11, § 213.

This allegation raises a question of state law, a question which by itself would not support the jurisdiction of a federal court. While pendent jurisdiction over the state law claim might be said to exist because the claim also presents a substantial federal question, Brown & Root, Inc. v. Gifford-Hill & Co., 319 F.2d 65 (5th Cir. 1963); 1 Barron and Holtzoff, Federal Practice and Procedure § 23 (1960); this seems to be a case where that jurisdiction should be declined. Sunbeam Lighting Company v. Pacific Associated Lighting, Inc., 328 F.2d 300 (9th Cir. 1964); Strachman v. Palmer, 177 F.2d 427 (1st Cir. 1949); 5 A.L.R.3d 1040, 1058. Neither of the parties has expended energy on this issue; thus, because it has not been given a full adversary airing, this issue, with repercussions far beyond this case, is hardly ripe for determination by this Court. Plaintiffs' claim on this issue is dismissed without prejudice to their proceeding in an appropriate state court.

Plaintiffs' primary attack on Act No. 403 may be stated as a syllogism: Alabama historically has had a dual system of higher education by law; although no longer supported by law, the dual system in fact remains largely intact; this Court and the Fifth Circuit recognize in the elementary and secondary education area an affirmative duty to dismantle the dual system, Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967), aff'd Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L. Ed.2d 422 (1967); United States v. Jefferson County Board of Education, 5 Cir., 372 F.2d 836 (1966), aff'd en banc 380 F.2d 385 (5th Cir. 1967), cert. denied Bd. of Ed. of City of Bessemer v. United States, 389 U.S. 840, 88 S.Ct. 840 (1967); that duty is equally applicable to higher education; that duty requires officials to utilize new construction or expansion of facilities as an opportunity to dismantle the dual system; the history and operation of Acts Nos. 243 and 403 indicate that in planning the construction of the Auburn branch at Montgomery defendants did not maximize desegregation; therefore, their action is unconstitutional and should be enjoined.

At the outset it should be noted that this argument presents a case of first impression. To our knowledge, no court in dealing with desegregation of institutions in the higher education area has gone farther than ordering nondiscriminatory admissions. That is also as far as Congress went in the 1964 Civil Rights Act.² The Department of Health, Education and Welfare has also largely limited its concern to admissions policies in administering Title 6 of the 1964 Civil Rights Act.³

We too are reluctant at this time to go much beyond preventing discriminatory admissions. Although much of plaintiffs' argument is valid, several faulty premises lead us to reject the conclusion they urge upon us. We would judicially notice that Alabama has traditionally had a dual system of higher education. Furthermore, we find as a fact that the dual system in higher education has not been fully dismantled. The law is clear also that the State is under an affirmative duty to dismantle the dual system. Indeed, in Lee v. Macon County Board of Education, supra, we required the state colleges and junior colleges to refrain from discrimination in admissions and to begin faculty desegregation. We do not agree, however, with the characterization of the college authorities' conduct, nor do we agree that the scope of the duty should be extended as far in higher education as it has been in the elementary and secondary public schools area.

Plaintiffs fail to take account of some significant differences between the elementary and secondary public schools and institutions of higher education and of some related differences concerning the role the courts should play in dismantling the dual systems. Public elementary and secondary schools are traditionally free and compulsory. Prior to "freedom of choice," children were assigned to their respective schools. This could be done with equanimity because, in principle at least, one school for a given grade level is substantially similar to another in terms of goals, facilities, course offerings, teacher training and salaries, and so forth. In this context, although reluctant to intervene, when the Constitution and mandates from the higher courts demanded it, we felt that desegregation could be accomplished, and that the requirements of the law would be met, without our being involved in a wide range of purely educational policy decisions. Accordingly, we felt, in dealing with the problem of desegregating the elementary and secondary public schools, that we could and should review decisions concerning the impact of site selection for new construction or expansion without overreaching our area of competence.

Higher education is neither free nor compulsory. Students choose which, if any, institution they will attend. In making that choice they face the full range of diversity in goals, facilities, equipment, course...