Ayers v. Allain, 88-4103

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation893 F.2d 732
Docket NumberNo. 88-4103,88-4103
Parties58 Ed. Law Rep. 48 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.
Decision Date06 February 1990

Robert Pressman, Center for Law & Educ., Cambridge, Mass., Alvin O. Chambliss, Jr., Oxford, Miss., for Ayers, et al.

Linda F. Thome, Jessica Dunsay Silver, Nathaniel Douglas, John R. Moore, Levern M. Younger, Franz R. Marshall, and Zita Johnson-Betts, U.S. Dept. of Justice, Civ. Rights Div., Educ., Opportunities Litigation, Sec., Washington, D.C., for the U.S.

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

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

Before GOLDBERG, JOHNSON and DUHE, Circuit Judges.

GOLDBERG, Circuit Judge:

" 'The time has come,' the Walrus said, 'To talk of many things:

Of shoes--and ships--and sealing wax--Of Cabbages--and kings--

And why the sea is boiling hot--and whether pigs have wings.' " 1

We'll sit and chat of times gone by, and visit with the queens

Brown, and, Sweatt and Meredith not to mention the fertile Green

And then we'll see why Ayers should fly and how equality is king!

Today we write an opinion concerning a class action lawsuit involving the public universities of Mississippi. The question is whether the racial identity of these institutions results from the free choice of the students or from state policies and practices.

A group of plaintiffs filed this lawsuit against the Governor of Mississippi, the Board of Trustees of State Institutions of Higher Learning of the State of Mississippi, the Commissioner of Higher Education, and other state officials in January, 1975. These private plaintiffs consists of a class certified by the district court as:

all black citizens residing in Mississippi, whether students, former students, parents, employees or taxpayers, who have been, are, or will be discriminated against on account of race in receiving equal educational opportunity and/or equal employment opportunity in the universities operated by said Board of Trustees. 2

They have alleged that the defendants were maintaining and perpetuating a racially dual system of public higher education in violation of the equal protection clause of the fourteenth amendment and Title VI of the Civil Rights Act of 1964.

The United States intervened as a plaintiff shortly thereafter making identical allegations. The private plaintiffs and the United States, collectively referred to as "the plaintiffs," seek an injunction directing the defendants to eliminate all vestiges of the racially segregated system of higher education in Mississippi.

The defendants answered the plaintiffs' allegations arguing that the existence of predominantly one race universities does not violate the equal protection clause because Mississippi has implemented, in good faith, a nondiscriminatory admissions and operations policy. The defendants believe that the identifiability of the universities by the racial composition of the student population results from the free and unfettered choice of the students themselves.

In the spring of 1987, a five week trial was conducted in Oxford, Mississippi following twelve years of pretrial preparation. The record consists of 4,400 pages of trial testimony and approximately 2000 exhibits. At the end of 1987, the district court ruled for the defendants on the issue of liability and dismissed the plaintiffs' case. 3 The plaintiffs appeal.


A. A History of De Jure Discrimination

The Mississippi university system consists of eight institutions and several entities under the plenary power of a Board of Trustees (the "Board"). 4 These universities were segregated by race through the spring of 1962, contrary to the Supreme Court's 1954 mandate in Brown v. Board of Education, 5 when our court forced the University of Mississippi to admit its first black student, James Meredith. 6 Prior to the admission of Meredith, no black students attended any of the historically white universities and no white students attended any of the historically black universities. The historically white universities were: (1) the University of Mississippi; (2) Mississippi State University; (3) the University of Southern Mississippi; (4) Mississippi University for Women; and, (5) Delta State University. The historically black universities were what are now known as: (1) Jackson State University; (2) Alcorn State University; and, (3) Mississippi Valley State University.

At the time of the Meredith decision, the Board had implemented segregative policies encompassing: (1) student enrollment; (2) the maintenance of branch centers by the historically white universities in close proximity to the historically black universities; (3) the employment of faculty and staff; (4) facility provision and condition; (5) the allocation of financial resources; (6) academic program offerings; and, (7) the racial composition of the Board and its staff. 7 The Board did not permit black students to enroll at any of the historically white universities under its auspices. 8 The years each of the historically white universities first enrolled a black student are as follows:

Similarly, white students did not attend a historically black university until the late 1960's:

                Alcorn State University ................ 1966
                Jackson State University ............... 1969
                Mississippi Valley State University .... 1970

The racial identification of Mississippi's public universities continues to the present day. Undergraduate programs included the following percentages of black enrollment between the years 1973-74 and 1985-86:

                                                        197374          198081        198586

Historically White Institutions


9. * The figure for Mississippi State University for 197374 is an average

derived from 197273 and 197475 data because data for 197374 are not

                Note availablle
                Delta State University                  14.3                17.1       17.59
                Mississippi State University             5.6  *             11.2        11.0
                Mississippi University for Women         9.9                19.3       18.0
                University of Mississippi                3.5                 7.0       5.9
                University of Southern Mississippi       4.5                11.3       14.24
                Historically Black Institutions
                Alcorn State University                 99.7                96.9       95.6
                Jackson State University                99.6                95.2       91.9
                Mississippi Valley State University     99.7                99.8       99.3

The racial composition of the graduate programs reflects a similar pattern.

                                                     197374            198081         198586

Historically White Institutions


10. ** In 198586, Jackson State University enrolled 59% black, 13.3% white,

and 27.7% other-race pupils. For 197374, Mississippi State University and

the University of Southern Mississippi are averages of 197273 and 197475

                Note data because 197374 data are not available
                Delta State University               41.6                  38.3        26.2
                Mississippi State University         12.8  **               9.6         8.0
                Mississippi University for Women     14.5                  18.0        13.0
                University of Mississippi             7.6                   8.4         7.5
                University of Southern                9.2  **               8.7         8.1
                Historically Black Institutions
                Alcorn State University              0                     99.4        96.0
                Jackson State University             91.8                  85.3        59.0**
                Mississippi Valley State             0                     94.7        96.7

In summary, regarding undergraduate enrollment in 1986, over 99% of the white students (26,759 out of 26,953) were enrolled in historically white institutions and over 71% of the black students (9,125 out of 12,826) were enrolled in historically black institutions.

B. Admissions Policies

The historically white institutions require all applicants to achieve a minimum score of 15 on the ACT, a standardized college admissions examination, as a prerequisite for admission. The Board instituted this policy soon after the court ordered admission of James Meredith to the University of Mississippi in 1962 because it deterred black enrollment. 11 At the time, the average ACT score for white Mississippi students was 18 while the average for black Mississippi students was 7.

In 1976, the Board augmented the ACT requirement requiring a minimum score of 9 for admission to any of Mississippi's public universities ostensibly in response to complaints voiced by university faculty and staff regarding the preparation of incoming freshmen. This ACT minimum was directed at the historically black schools. The three largest historically white schools maintained the 15 ACT minimum.

The Board again modified admission requirements in 1977 and in 1982. In 1977, the Board created an exception to the 9 point ACT minimum. Students with ACT scores of 9 or above could be admitted to the historically white schools if they fell into a special talents or high risk category. And as of 1982, the Board required high school graduates to complete a group of college preparatory courses as an admissions prerequisite.

The college preparatory course requirement applies to all of Mississippi's public universities but the ACT exception is more liberal at the historically black institutions. The historically white institutions may enroll a number of students not to exceed five percent of the previous academic year's freshmen class under the talented or high risk exception. 12 At Jackson...

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