UNITED STATES v. STATE OF ALABAMA
628 F.Supp. 1137 (1985)
UNITED STATES of America, Plaintiff,
John F. Knight, Jr., et al., individually and on behalf of others similarly situated, Plaintiffs-Intervenors,
Board of Trustees of Alabama State University and Alabama A & M University, Realigned Plaintiffs,
v.
The STATE OF ALABAMA; George C. Wallace, Governor of the State of Alabama; the Alabama State Board of Education; Wayne Teague, State Superintendent of Education; 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 Board of Trustees for 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.
Civ. A. No. 83-C-1676-S.
United States District Court, N.D. Alabama, S.D.
December 7, 1985.
Frank W. Donaldson, Caryl P. Privett, William French Smith, Atty. Gen., Wm. Bradford Reynolds, Asst. Atty. Gen., Nathaniel Douglas, Franz Marshall, Jeanne K. Pettenati, Levern M. Younger, Angela Schmidt, Jeremiah Glassman, Pauline A. Miller, Dept. of Justice, Washington, D.C., for plaintiffs.
Ronald W. Wise, Joan Van Almon, Ira De Ment, De Ment & Wise, Montgomery, Ala., for Wallace and Alabama Com'n of Higher Educ. & Al Public School & College Authority.
Walter J. Merrill, Anniston Ala., for Jacksonville State University.
Joe R. Whatley, Jr., John C. Falkenberry, Falkenberry, Whatley & Heidt, Birmingham, Ala., for Board of Trustees for Alabama A & M.
Donald V. Watkins, Watkins, Carter & Knight, Montgomery, Ala., James U. Blacksher, Larry T. Menefee, Blacksher, Menefee & Stein, Mobile, Ala., for intervenors.
Fred D. Gray, Gray, Langford, Sapp, Davis & Mc Gowan, Tuskegee, Ala., Robert J. Lipshutz, Lipshutz, Frankel, Greenblatt, King & Cohen, Atlanta, Ga., for intervenors amicus curiae: The National Bar Ass'n and The American Jewish Congress.
William F. Gardner, Cabaniss, Johnston, Gardner, Dumas & O'Neil, Birmingham, Ala., Joseph J. Levin, Jr., Sanford, Adams, McCullough & Beard, Washington, D.C., for defendant-intervenor, University of Alabama Huntsville Foundation.
Alan R. Engel, Engel & Smith, Mobile, Ala., Maxey J. Roberts, University of South Alabama, Mobile, Ala., for University of South Alabama.
Richard F. Calhoun, Brantley & Calhoun, Troy, Ala., for Troy State University.
J. Fredric Ingram, William F. Murray, Jr., Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, Ala., for Livingston University.
J. Scott Green, Carl E. Johnson, Jr., Burgin Kent, Birmingham, Ala., Frank Ellis, Jr., Wallace, Ellis, Head & Fowler, Columbiana, Ala., for University of Montevallo.
C. Glenn Powell, Robert L. Potts, University, Ala., for Board of Trustees of University of Alabama.
Demetrius C. Newton, Birmingham, Ala., for intervenors the University Legal Defense Fund and the National Alumni Normalite Ass'n.
J. Richmond Pearson, Birmingham, Ala., for proposed intervenors Oscar Williams, Jr. and R. Franklin Williams.
Charles S. Coody, Jeffery A. Foshee, State Dept. of Educ., Montgomery, Ala., for Wayne Teague, Superintendent of Educ. for State of Alabama and Alabama State Bd. of Educ.
John Richard Carrigan, Edward S. Allen, Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, M. Stanford Blanton and David R. Boyd, Birmingham, Ala., Thomas W. Thagard, Jr., Montgomery, Ala., Thomas D. Samford, III, Samford & Samford, Opelika, Ala., for Auburn University.
T. Michael Putnam, Ernest Blasingame, Potts, Young, Blasingame & Suttle, Florence, Ala., for University of North Alabama.
Solomon S. Seay, Jr., Terry Davis, Montgomery, Ala., for Board of Trustees for Alabama State.
Robert W. Rieder, Jr., John O. Cates, University of Alabama in Huntsville, Ala.
Armand Derfner, Charleston, S.C., for Alabama State University.
Charles Self, University of Alabama in Birmingham, Ala.
OPINION OUTLINE
Introduction ..................................... 1140
I. The Historical Development of the
Dual System of Higher Education ............ 1140
A. University of Alabama .................... 1140
Autherine Lucy ........................... 1141
Stand In Schoolhouse Door ................ 1143
B. Auburn Polytechnic Institute ............. 1144
Harold Franklin Admission ................ 1144
C. Alabama State Teacher's College .......... 1145
D. Alabama A&M College ...................... 1148
E. University of South Alabama .............. 1151
F. Alabama College .......................... 1151
G. Florence, Livingston, Jacksonville and
Troy State Teachers Colleges ............. 1151
H. Actions of the State Board of Education .. 1152
II. Development In The Period 1965-75 ........... 1153
A. Lee v. Macon County, 267 F.2d 474
(M.D. Ala. 1967) ......................... 1153
B. University of Alabama at Huntsville ..... 1154
C. Auburn University in Montgomery ......... 1154
D. Athens State College ..................... 1155
E. Troy State University at Montgomery 1156
F. Alabama Commission on Higher
Education ............................... 1156
III. The Land Grant Issue ........................ 1157
A. Alabama's Reaction to the First
Morrill Act ............................. 1157
B. The Hatch Act in Alabama ................ 1158
C. The Smith-Lever Act in Alabama ........... 1159
D. Components of Land Grant School .......... 1160
IV. Vestiges of the Dual System of Higher
Education .................................. 1161
A. University of Alabama System ............ 1161
1. University of Alabama (Tuscaloosa) 1161
2. University of Alabama (Birmingham) 1161
3. University of Alabama (Huntsville) 1161
B. Auburn University ........................ 1164
1. Main Campus ........................... 1164
2. Auburn University at Montgomery 1165
C. Alabama State University ................. 1165
D. Alabama A&M University ................... 1166
E. University of South Alabama .............. 1167
F. University of Montevallo ................. 1167
G. University of North Alabama .............. 1167
H. Jacksonville State and Livingston
Universities ............................. 1168
I. Troy State University ................... 1168
J. Athens State ............................ 1169
K. State Board of Education ................ 1169
L. Other Indicia of Vestiges ............... 1170
V. Special Defenses ........................... 1170
A. Asserted Lack of a System of
Higher Education ........................ 1171
B. Effect of ASTA case ..................... 1171
C. Asserted Lack of Standing and
Failure to Exhaust ...................... 1172
Conclusion ........................................ 1173
MEMORANDUM OF OPINIONCLEMON, District Judge.
The merits of this case involve two issues: whether the State of Alabama operated a racially dual system of higher education, and, if so, whether the vestiges of the dual system have now been eliminated. In 1983, the United States initiated this action under 42 U.S.C. § 2000d, d-1, ("Title VI") and the Fourteenth Amendment to the United States Constitution against the State of Alabama, its publicly supported institutions of higher learning and related agencies and officials. Two defendants, Alabama A & M University ("A & M") and Alabama State University ("ASU"), were granted leave to realign themselves as plaintiffs.
Since the issues in Knight v. James,514 F.Supp. 567 (M.D.Ala.1981), are subsumed in this case, the certified class in Knight was permitted to intervene herein and to assert its claims under Title VI and 42 U.S.C. § 1983. After protracted, voluminous and often unnecessary discovery, the trial of the case commenced in, and consumed the month of July, 1985.
1. The short-lived exception, Alabama Colored Peoples University, is discussed at p. 1147.
2. The board member who testified in support of the indefinite suspension was of the opinion that Autherine Lucy "and the people who were sponsoring her and who were seeking to have her go to the University of Alabama" were deliberately trying to cause trouble and incite riot. Thurgood Marshall, co-counsel for Lucy, pressed the point:
Q Mr. Caddell, what was done by Autherine Lucy or anybody connected with [her] on Monday, February 6 that was unlawful?
A Well, Autherine Lucy came there in a Cadillac automobile; she had chauffers with her; she walked about on the campus in such a way as to I suppose, be obnoxious and objectionable and disagreeable.
A & M Exhibit ("AMX"), Transcript of 2/29/56 Hearing, p. 179.
3. It has been contended that the Governor was not motivated by a desire to prevent desegregation; rather that he was simply seeking to raise a grave constitutional issue concerning the usurpation of state powers by the federal government. A letter written by the Governor three months after the event lays to rest this attempted revision of history. In that letter, the Governor says, inter alia,As we read the statistics of our Courts, Public Health Departments, we find that a vast majority of the crime committed in this area has been committed by members of the Negro race.... Their health records record the fact that a vast percentage of people who are infected with venereal diseases are people of the Negro race. Statistics from the Health Department also reveal the fact that an exceedingly high percentage of illegitimate children in this state and surrounding states are of the Negro race. We find that the Negroes are not aggresive in the respect of making progress and their own ability to live among themselves. * * * It is our firm belief that when God in Heaven made the Negro black, he meant for him to stay that way. Likewise when he made the white race white, He meant for them to be a pure race. It is our further belief that when the two races mix and mingle in schools, from the first grade through college, this mixing will result in the races mixing socially, which fact will bring about intermarriages of the races, and eventually our race will be deteriated [sic] to that of the mongrel complexity. * * * ... if we can manage to keep our races from mixing, we shall always have pure races. Letter from Governor Wallace to Art Wallace, dated 9/13/63. AMX 14G. (emphasis added).
4. Because of this policy and custom which had the force of law, the legislature designated the Huntsville Normal School as the land-grant college for blacks in 1891 so that Auburn might continue receiving Morrill Act funds.
5. The President of the University of Alabama apparently refused to endorse the Governor's position.
6. The historical facts concerning Alabama State and A & M are based on the evidence and Horace Mann Bond's Negro Education in Alabama: A Study In Cotton and Steel. New York, Antheneum, 1969; Robert G. Sherer's Subordination and Liberation: Development of Conflicting Theories of Black Education in 19th Century Alabama. University of Alabama Press, 1977. These books are included in the bibliography of Auburn's land grant expert, Dr. William Warren Rogers; and pursuant to A & M's Request For Judicial Notice, they are so noticed.
7. Curry later became the General Agent of the Peabody Fund and administration head of the Slater Fund, which donated millions of dollars to black and white schools in Alabama during the period 1868-1914.
8. $4,500 was to be divided among the white schools.
9. During this period of Alabama history, the State Board of Education was empowered to enact laws dealing with education.
10. Not without significance, Booker T. Washington of Tuskegee Institute (which had been founded with a $2,000 state appropriation only six years earlier and was only forty miles from Montgomery) secretly lobbied against relocating the school in Montgomery.
11. The opinion was written by Justice Clopton, a former representative in the Confederate Assembly and former president of the East Alabama Male Institute (the predecessor to Auburn Polytechnic Institute).
12. The state appropriation was not increased for the next third of a century.
13. Actually, by that time Tuskegee Institute, which had started as a normal school in 1881 with a $2,000 state appropriation, depended on Northern philanthropists for virtually all of its income.
14. Senator Pugh introduced an amendment to the Act to permit the funds to go to schools which did not have "college" in their names; Senator Morgan publicly stated that the funds should go to Tuskegee, which has "... done more for the youthful colored population in that State than can be claimed by almost any other State in the South."
15. Washington apparently learned his lesson well. Five years later, he delivered his famous Atlanta Exposition speech, in which he urged blacks to forego social and political equality with whites and to develop industrial skills.
16. Ironically, as Councill's (and thus A & M's) stock fell with the legislature, Booker T. Washington's (and therefore Tuskegee Institute's) stock rose.
17. In 1916 and 1917, Alabama State's annual appropriation was $15,000. The white normal schools were appropriated $20,000.00 on the average in those years. The University of Montevallo received $54,427.68; and the University of Alabama received an annual $71,000 appropriation. Auburn's $87,280 was the highest state appropriation in those years.
18. Alabama State College operated a Mobile Extension Center at which black high school graduates could receive their first two years of college education.
19. The "Class B Normal Schools" were apparently white also; but they generally offered education below the collegiate level.
20. Presently, there are nursing schools at each of the successors to the "Class A" schools; neither Alabama State College nor A & M has one.
21. Tuskegee was considered only in those instances in which the superintendent had contracted with it for a particular course or program.
22. Governor John Patterson made the following statement to a Joint Session of the Alabama Legislature on May 2, 1961:
I wish to again recommend the enactment of a law placing our State colleges—with the exception of the Negro colleges—under the control of separate boards of trustees if they are not already under such boards. I make this recommendation because I see the need for further decentralizating control of our colleges due to continued attacks by race agitators to integrate our schools. This decentralizing would make it more difficult for these agitators to attack more than one college at a time. I believe the Negro colleges should remain under the control of the State Board of Education. I also recommend the enactment of a law placing the State trade schools under separate boards of trustees for the same reasons. The members of the Boards of Trustees should be appointed by the Governor for fixed and staggered terms, and the Governor should serve as ex-officio chairman of the boards in every case.
24. The Auburn plan, for example, included "work throughout the State" in various agricultural projects, and "cooperation with the Girls' Tech. Inst., Montevallo." Letter of July 28, 1914. Of course, the Girls' Technical Institute was all-white.
25. The Smith-Lever Act by its terms restricted extension funds to land grant colleges receiving funds under the First and Second Morrill Acts.
26. The Court is mindful that some of the defendant institutions admitted a few blacks pursuant to court orders prior to 1967. But the admission of one or two blacks does not signal the end of segregation.
27. These include administrative, management, secretarial-clerical, technical-paraprofessional, and skilled craft jobs.
28. His report indicates, inter alia:The proposal is that an M.S. curriculum in applied physics be developed and initiated at Alabama A & M University. In my opinion, this would be a worthwhile project. Applied physics ... is a rapidly growing field. Modern advances in optics, electronics, materials (surely including semiconductors) and sophisticated computer backup constitute a major force in modern-day research and development in industrial and government laboratories. An inclusive term that is widely used is "electro-optics. * * * The fields that A & M selected for first attention are excellent: modern optics (of course including lasers), and materials science (including applications to solar energy).
* * * * * *
The outlines that were sent me showed a rather complete offering in optics, with some 12 courses listed.
29. The Admissions Officer testified that if an applicant has an overall GPA of "B", he or she may be admitted with a minimum 16 ACT score.
30. Most of the findings in that case relate to actions taken, or not taken, by ASU during the time that it was operated by the state board of education. There is no evidence of discrimination against whites by ASU at anytime since it was given a separate board of trustees.
31. See Hunter v. Underwood, ___ U.S. ___, 105 St.Ct. 1916, 1920-21, 85 L.Ed.2d 222 (1985).
32. Only the University of North Alabama and the University of South Alabama lack at least one trustee from each congressional district of the State.