Ayers v. United States Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae in Support of Petitions for Writs of Certiorari to the US Court of Appeals for the Fifth Circuit

    N os. 90-6588 and 90-1205

In  T h e

Supreme Court of tf)c Brntetr states
Octo ber  T e r m , 1990

J ake Ayers, J r ., et a l, 
and

United States of America, 

vs.

Ray Mabus, Governor, 
State of Mississippi, et al.

Petitioners,

MOTION FOR LEAVE TO FILE AND 
BRIEF OF THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC. AS AMICUS CURIAE 
IN SUPPORT OF PETITIONS FOR WRITS OF 

CERTIORARI TO THE UNITED STATES COURT 
OF APPEALS FOR THE FIFTH CIRCUIT

Janell M. Byrd
NAACP Legal Defense and
Educational F und, Inc.

1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

* Julius LeVonne Chambers 
Charles Stephen Ralston 
Norman J. Chachkin 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Amicus Curiae
* Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



Nos. 90-6588 and 90-1205

In the
Supreme Court of the United States

October Term, 1990

Jake Ayers, Jr., ex a!., 

and

United States of America, 

Petitioners, 

vs.

Ray Mabus, Governor, 
State of Mississippi, et al.

M OTION OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. FOR LEAVE TO FILE 
BRIEF AS AMICUS CURIAE IN SUPPORT OF PETITIONS 
FOR WRITS OF CERTIORARI TO THE UNITED STATES 

COURT OF APPEALS FOR THE FIFTH CIRCUIT

The NAACP Legal Defense and Educational Fund, Inc. 

(LDF) respectfully moves the Court for leave to file the



2

attached brief as amicus curiae in support of the petitions for 

writs of certiorari to the United States Court of Appeals for 

the Fifth Circuit. Both the Ayers petitioners and the United 

States have consented to the filing of this brief. Respondents, 

Ray Mabus, Governor of the State of Mississippi, et al., have 

denied consent.

LDF is a non-profit corporation organized under the laws 

of the State of New York. It was formed to assist black 

citizens in securing their rights under the Constitution. LDF 

has significant interests in this litigation. LDF has litigated 

extensively in the area of school desegregation.* It litigated 

the five cases whose interpretation is directly involved in 

determining a state’s obligation to dismantle a formerly 

de jure segregated system of higher education — the central 

issue raised in these petitions.

Further description of the interests of amicus LDF appears at pages 
2-5 of the attached brief, including a description of LDF’s history of 
involvement in school desegregation litigation.



3

LDF believes that the decision entered below is in error 

and will have substantial adverse effects on the educational

opportunities for black citizens that LDF’s litigation seeks to 

expand. Because of the direct effect on LDF’s litigation 

efforts and LDF’s extensive involvement in the development 

of the law in this area, LDF’s participation as amicus curiae 

in this case will be of assistance to the Court.

Janell M. Byrd 
NAACP Legal Defense and 
Educational Fund, Inc.

1275 K Street, N.W. 
Suite 301
Washington, DC 20005 
(202) 682-1300

Respectfully submitted,

/s/ Janell M. Byrd 
* Julius LeVonne Chambers 

Charles Stephen Ralston 
Norman J. Chachkin 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel fo r  Amicus Curiae 
* Counsel o f  Record



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................. ii

Interest of the NAACP Legal
Defense Fund As Amicus Curiae ....................................  1

STATEMENT OF RELEVANT FA C T S............... ... 6

SUMMARY OF THE A R G U M EN T..................... ..  . 11

A R G U M EN T.....................................................................  12

CONCLUSION ................................................................... 19

l



TABLE OF AUTHORITIES

Cas es Pa o

Adams v. Lucy, 228 F.2d 619 (5th Cir. 1955),
cert, denied, 351 U.S. 931 (1956) . . . . . . . . . . .  2

Adams v. Richardson, 356 F. Supp. 92 
(D.D.C.), modified and a ff’d 
unanimously en banc, 480 F.2d 1159 
(D.C. Cir. 1973), dismissed sub nom.
Women’s Equity Action League v.Cavazos,
906 F.2d 742 (D.C. Cir. 1990).................................  2, 3

Alabama State Teachers Association v.
Alabama Public School and College 
Authority, 289 F. Supp. 784 (M.D. Ala.
1968), aff’d per curiam, 393 U.S. 400
(1969)............... .. ................. ... 3

Ayers v. Attain, 914 F.2d 676 (5th
Cir. 1990) (en banc) ....................................... 4, 14, 17, 18

Bazemore v. Friday, 478 U.S. 385
(1986)..................... .. ................. .................. 3

Board o f Education o f Oklahoma City Public 
Schools v. Dowell, 111 S. Ct. 230 
(1991).................................... ... 13, 14

Brown v. Board o f  Education, 347 U.S. 483
(1954).................. ..  .2 , 12, 14, 15, 16

ii



Page

Brown v. Board o f Education, 349 U.S. 294
(1955)..............................................................................  13

Geier v. Alexander, 801 F.2d 799 (6th Cir.
1986)..............................................................................  3, 14

Geier v. University o f Tennessee,
597 F.2d 1056 (6th Cir.), cert, denied,
444 U.S. 886 (1979).............................. .. .................  14

Green v. County School Board o f  
New Kent County, 391 U.S. 430 
(1968)............................................ ................................. 3, 14

Keyes v. School District No. 1,
413 U.S. 189 (1973)......................................................  18

League o f United Latin American Citizens 
v. Clements, No. 12-87-5242-A,
filed December 2, 1987 (107 Dist. Ct. T e x .) ............  19

Lee v. Macon County Board o f Education,
267 F. Supp. 458 (M.D. Ala.), a ff’d sub
nom. Wallace v. United States, 389
U.S. 215 (1967)............ ..................................................  14

McDaniel v. Barresi, 402 U.S. 39 (1971)........................  18

McLaurin v. Oklahoma State Regents,
' 339 U.S. 637 (1950).........................................................  2

Meredith v. Fair, 305 F.2d 343 (5th Cir.)
cert, denied, 371 U.S. 828 (1962)..................... ... 2

iii



Page

Milliken v. Bradley, 433 U.S. 267
(1977).................................................................................  14

Norris v. State Council o f  Higher Education 
fo r  Virginia, 327 F. Supp. 1368 
(E.D. Va.), a ff’d mem., 404 U.S. 907 
(1971).........................................    3

Sweatt v. Painter, 339 U.S. 629 (1950)...........................   2

United States v. Hinds County School Board, 
417 F.2d 852 (5th Cir. 1969), cert, denied,
396 U.S. 1032 (1970), delaying order-
reversed sub nom. Alexander v. Holmes
County Board o f Education, 396 U.S. 19
(1969).................................................................................  9

United States v. Louisiana, 380 U.S. 145
(1965)............... .. .................................................. . . . .  14

United States v. Louisiana, 692 F. Supp. 642 
(E.D. La. 1988), order vacated,
751 F. Supp. 606 (E.D. La. 1990)..................  14, 16, 17

United States v. Scotland Neck City Board o f
Education, 407 U.S. 484 (1972)................................ 14

Wright v. Council o f City o f Emporia,
407 U.S. 451 (1972).................................   14

IV



Page

Constitution, Statutes and Regulatory Materials:

U.S. Constitution, Fourteenth Amendment.....................  3

Title VI of the Civil Rights Act of 1964,
42 U.S.C. § 2 0 0 0 d ..................... .. ................................  3

Revised Criteria Specifying the Ingredients 
of Acceptable Plans to Desegregate State 
Systems of Public Higher Education,
43 Fed. Reg. 6658 (Feb. 15, 1978)...........................4, 14

Other Authorities:

Bureau of Education, United States Department of the 
Interior, Survey o f Negro Colleges and Universities 
(1928).................................................................................  7

Kujovich, Equal Opportunity in Higher Education and the 
Black Public College: The Era o f Separate But Equal,
72 Minn. L. Rev. 29 (1987) . . ' ....................................  7

Payne, Forgotten . . . but not gone: The Negro 
Land-Grant colleges, Civil Rights Digest 12 
(Spring 1970).....................................................................  7

W.E. Trueheart, The Consequences o f Federal and 
State Resource Allocation and Development 
Policies fo r  Traditionally Black Land-Grant 
Institutions: 1862-1954 (University Microfilms 
International, Ann Arbor, Michigan) (1979)................... 7

v



Nos. 90-6588 and 90-1205

In the
Supreme Court of the United States

October Term, 1990

Jake Ayers, Jr., et al., 

and

United States of America, 

Petitioners, 

vs.

Ray Mabus, Governor, 
State of Mississippi, et al.

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. AS AMICUS CURIAE 

IN SUPPORT OF PETITIONS FOR WRITS OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FIFTH CIRCUIT

Interest of the NAACP Legal 
Defense Fund As Amicus Curiae

The NAACP Legal Defense and Educational Fund, Inc.

(LDF) is a non-profit corporation established to assist African



2

American citizens in securing their constitutional and civil 

rights. LDF historically has had and continues to have a 

major role in litigation efforts challenging discrimination and 

segregation in education.1

The interests of LDF are significant in this case. LDF 

successfully litigated the first court challenge to racial 

segregation in Mississippi’s higher education system, 

Meredith v. Fair, 305 F.2d 343 (5th Cir.), cert, denied, 371 

U.S. 828 (1962). The central question presented here 

regarding the scope of a state’s duty to desegregate a formerly

1 See, e.g., Brown v. Board o f Education, 347 U.S. 483 (1954). 
LDF represented the plaintiffs in the litigation that resulted in the initiation 
of desegregation efforts in public higher education systems in 18 states, 
including the State of Mississippi. Adams v. Richardson, 356 F. Supp. 
92 (D.D.C.), modified and a ff’d unanimously en banc, 480 F.2d 1159 
(D.C. Cir. 1973), dismissed sub nom. Women’s Equity Action League v. 
Cavazos, 906 F.2d 742 (D.C. Cir. 1990). Other LDF higher education 
desegregation cases include: Sweatt v. Painter, 339 U.S. 629 (1950); 
McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); Adams v. 
Lucy, 228 F.2d 619 (5th Cir. 1955), cert, denied, 351 U.S. 931 (1956).



3

de jure segregated system of higher education involves the 

interpretation of five cases litigated by LDF.2

As a result of litigation brought by LDF,3 in 1978 the 

Office for Civil Rights of the United States Department of 

Health, Education and Welfare (HEW)4 promulgated remedial 

standards for desegregating formerly de jure state systems of 

higher education pursuant to the Fourteenth Amendment and 

Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. 

The "HEW Guidelines" imposed an "affirmative duty to take 

effective steps to eliminate the de jure  segregation," and 

required "more than mere abandonment of discrimination

2 Bazemore v. Friday, 478 U.S. 385 (1986); Green v. County School 
Board o f New Kent County, 391 U.S. 430 (1968); Geier v. Alexander, 
801 F.2d 799 (6th Cir. 1986); Norris v. State Council o f  Higher Education 

fo r  Virginia, 327 F. Supp. 1368 (E.D. Va.), aff’d mem., 404 U.S. 907 
(1971); and Alabama State Teachers Association v. Alabama Public School 
and College Authority, 289 F. Supp. 784 (M.D. Ala. 1968), aff’d per 
curiam, 393 U.S. 400 (1969).

3 Adams v. Richardson, supra note 1.

4 The Department of Education subsequently was substituted for HEW 
in the litigation.



4

through the state’s adoption of passive or race neutral 

policies."5

Under these standards, as well as decisions of several 

federal courts, progress toward equal opportunities in higher 

education for African Americans began to be made. Some 

states moved not just to open the doors of formerly white 

institutions, but also took gradual steps to enhance their long- 

neglected and under-funded historically black colleges, which 

continue to educate a substantial portion of black college 

students.6

This litigation marks the first time that the Court of 

Appeals for the Fifth Circuit en banc has considered the duty 

owed by formerly de jure states in higher education. Instead 

of requiring the progress that has occurred elsewhere,

3 Revised Criteria Specifying the Ingredients of Acceptable Plans to 
Desegregate State Systems of Public Higher Education, 43 Fed. Reg. 6658 
(Feb. 15, 1978) reprinted in the Ayers Petitioners’ Appendix ("Ayers 
App.") A90.

6 Id. at 6660, Ayers App. A92.



5

however, the decision in Ayers v. Attain, 914 F.2d 676 (5th 

Cir. 1990) (en banc), effectively cuts off the desegregation 

process. The court below requires only that formerly de jure 

segregated state systems of higher education implement what 

are described as good faith, race-neutral policies. In so 

holding the court ignored the massive overlay of entrenched 

disadvantage and inequity caused by the vestiges of the prior, 

overtly dual system and the consequent continued existence in 

Mississippi, in practice if not in theory, of the dual system.

Because of the important goal of providing full 

educational opportunity for African American citizens free 

from the vestiges of past discrimination and segregation, LDF 

urges the Court to grant the pending petitions for certiorari 

in order to reverse the Ayers decision.



6

STATEMENT OF RELEVANT FACTS7

Opportunities for higher education for freed slaves and 

their descendants following the Civil War were first provided 

in Mississippi in 1878, when the Mississippi State Legislature 

designated Alcorn Agricultural and Mechanical College for 

the education of black youth (United States’ Appendix "U.S. 

App." 110a-11a). Since 1844, the State had operated the 

University of Mississippi, which was solely for white persons. 

The same year that Alcorn was designated for African 

Americans, the state established Mississippi Agricultural and 

Mechanical College (later Mississippi State University) for 

white persons only.

Thereafter, the State established the Mississippi 

University for Women for whites in 1884, the University of 

Southern Mississippi for whites in 1910, Delta State

We adopt the detailed factual review provided by the Ayers 
petitioners.



7

University for whites in 1924, Jackson State University for 

the training of black teachers for black public schools in 

1940, and Mississippi Valley State University for the training 

of black teachers and for vocational training for black students 

in 1946.8

That funding and support for the institutions dedicated for 

the education of African Americans was grossly inferior to 

that for whites is undisputed.9 That this severely and 

adversely affected the quality of life for Mississippians of 

African descent is admitted by the State.

8 U.S. App. 109a-114a.

9 U.S. App. 65a-66a, 151a-52a; Bureau of Education, United States 
Department of the Interior, Survey o f Negro Colleges and Universities 416- 
17 (1928) (Alcorn A & M "is largely a school of preparatory grade, 
concentrating its efforts on vocational and manual training. . . . [It] is 
lacking a properly qualified teaching staff and educational equipment for 
standard college work."). For a review of the grossly disparate funding 
provided public institutions for blacks during the "Jim Crow” era and 
thereafter see also generally Kujovich, Equal Opportunity in Higher 
Education and the Black Public College: Hie Era o f Separate But Equal, 
72 Minn. L. Rev. 29 (1987); W.E. Trueheart, Tlte Consequences of 
Federal and State Resource Allocation and Development Policies for  
Traditionally Black Land-Grant Institutions: 1862-1954 (University 
Microfilms International, Ann Arbor, Michigan 1979); Payne, Forgotten
. . . but not gone: The Negro Land-Grant Colleges, Civil Rights Digest 12 
(Spring 1970).



8

[W]hen the 1945 survey was made there were 22 
times as many white doctors in Mississippi in 
proportion to the white population as Negro (doctors 
in proportion to the Negro population; 13 times as 
many dentists, 5 times as many pharmacists, 420 
times as many lawyers, and 40 times as many social 
workers.

From 1948-1953, the institutions for white students 
in the State conferred 14,205 degrees, one for every 
131.1 white persons in the population; whereas the 
colleges for Negroes conferred 1,268 degrees, or one 
for every 778.1 Negroes in the total population.10

In 1980, African Americans comprised 35.4 percent of

the total population of Mississippi, and 41.3 percent of all

person ages 16-21 in the State (Ayers App. A113-117).

Nonetheless, in 1984-85, African Americans received 23.9

percent of all undergraduate degrees and 20.6 percent of

graduate degrees. Only 4.4 percent of the law degrees

awarded during the period 1982 to 1986 went to African

Americans. Of the medical and dental degrees awarded in

10 "Higher Education in Mississippi," Board of Trustees of State 
Institutions of Higher Learning of the State of Mississippi (Ayers App 
A102-04).



9

1985-86, only 4.5 percent went to African Americans. 

(Ayers App. A179-204.) The poverty rate for African 

Americans in Mississippi in 1980 was 44.4 percent compared 

to 12.6 percent for whites (Ayers App. A114-116).

Educational opportunities for African Americans in 

Mississippi today are directly reflective of and limited by 

Mississippi’s history of race discrimination and segregation in 

its education system.11 Today, African American students 

continue to be channelled systematically to the historically 

black institutions,12 and pursuant to "mission designations"

11 Disparities in the quality of the educational offerings at historically 
black institutions (HBIs) and historically white institutions (HWIs) are well 
documented and continue at every level as proved at trial: level of faculty 
education (U.S. App. 55a); faculty salaries (U.S. App. 56a), program 
offerings (U.S. App. 57a-61a); funding (U.S. App. 66a); and facilities 
(U.S. App. 68a). These inequities in higher education simply extend the 
inequities spawned in Mississippi’s longstanding dual system at the 
elementary and secondary level of education. See, e.g., United States v. 
Hinds County School Board, 417 F.2d 852 (5th Cir. 1969), cert, denied, 
396 U.S. 1032 (1970), delaying order reversed sub nom. Alexander v. 
Holmes County Board o f Education, 396 U.S. 19 (1969).

12 Shortly after the court ordered the admission of James Meredith to 
the University of Mississippi in 1962, the Board of Trustees of State 
Institutions of Higher Learning of the State of Mississippi and the HWIs 
adopted a new admissions requirement of a score of 15 on the ACT, a

(continued...)



10

tied directly to prior inequities resulting from overt 

discrimination, financial support continues to be channelled 

disproportionately to the historically white institutions.13

Thus, hardly a dent has been made in Mississippi’s 

entrenched racial caste system in higher education.14 Yet the 

Court of Appeals for the Fifth Circuit ruled that Mississippi 

need do no more than adopt good faith, race-neutral policies,

12(... continued)
standardized college admission examination. The purpose of this change 
was to deter black enrollment. (U.S. App. 51a.) Despite strong evidence 
that the ACT should not be used as the sole criterion for admission and 
the existence of better predictors of success in college with less adverse 
effect on black students, the HWIs continue to rely exclusively on the 
ACT. Racially identifiable student enrollments (U.S. App. 50a-51a) and 
racially identifiable faculties (U.S.App. 56a), continue to correspond 
strongly with the original racial designation of each institution.

13 The en banc court found that the "mission designations had the 
effect of maintaining the more limited program scope at the historically 
black universities," (U.S. App. 31a), and that "the disparities are very 
much reminiscent of the prior system. The inequalities among institutions 
largely follow the mission designations" (U.S. App. 37a). See also U.S. 
App. 66a.

14 Mississippi is among the states most recalcitrant to higher education 
desegregation efforts, requiring the United States to sue the state for its 
failure to adopt adequate desegregation measures. The desegregation plan 
adopted by the state has always been under-funded (U.S. App. 58a).



11

irrespective of results.15 Mississippi is not required to take 

affirmative measures to correct its wrong; black citizens are 

not entitled to an effective remedy.

SUMMARY OF THE ARGUMENT

This is a case of tremendous importance. Higher 

education has increasingly become the key to breaking the 

cycle of poverty, gaining full employment in the growing 

technical and highly skilled workforce, and developing 

healthy, responsible and productive communities. Equal 

access to this education free from the burdens and limitations 

of past and present discrimination and segregation is essential 

if African Americans are to enjoy the full rights and 

privileges to which all citizens are entitled.

This Court should grant the petitions for writ of 

certiorari because of the conflict in the circuits regarding the

15 U.S. App. 2a.



12

duty to correct state-mandated, separate and inferior 

educational systems for blacks, the broad impact of the case, 

the legal error committed below, and the real and substantial 

harm caused if the Ayers decision is allowed to stand.

ARGUMENT

Prior to and following Brown, the federal courts made 

some efforts to open the doors of formerly all-white higher 

education institutions to "qualified" minority students.16 This 

Court, however, has never actually examined the dimensions 

of the problem created by decades of no higher educational 

opportunities for African Americans followed by drastically 

inferior opportunities and mandatory segregation throughout 

the Southern and border state systems of higher education.17

16 See, e.g., supra note 1.

17 As late as 1940, seventy-seven percent of the nation’s African 
American population resided in the seventeen southern and border states 
and comprised twenty-two percent of the region’s population. But the ten 
million African Americans in the region received less than four percent of

(continued...)



13

The Court has not explored the necessity for remedies to 

eliminate the vestiges of those higher education systems in the 

same way that it has for elementary and secondary schooling 

in the series of decisions from Brown v. Board o f Education, 

349 U.S. 294 (1955) (Brown II), to Board o f Education o f  

Oklahoma City Public Schools v. Dowell, 111 S. Ct. 630 

(1991). It is necessary and appropriate that the Court address 

these issues in this case.18

17(... continued)
the federal land grant monies allocated to these states. Overall these 
African American citizens were limited to colleges receiving just over five 
percent of total expenditures for public higher education. In eight states, 
accounting for forty percent of all African Americans in the nation, there 
were no accredited public colleges available to persons of African descent. 
Kujovich, supra note 9 at 98-101.

18 It is essential that the Court fully hear this case and not limit the 
grant of the private plaintiffs’ petition to specified questions. This will 
ensure that the Court has the benefit of a thorough discussion of all record 
facts and evidence that will be useful in considering the legal questions 
presented. Additionally, this will provide the Court the flexibility to 
determine after briefing on the merits and oral argument whether it is 
necessary to decide all issues.



14

Not only is there a conflict in the circuits,19 legal error by 

the court below,20 and broad impact21 as explained in the

19 The decision of the Fifth Circuit en banc in Ayers conflicts with 
the Sixth Circuit decision in Geier v. Alexander, 801 F.2d 799 (6th Cir. 
1986).

20 The standard applied in school desegregation cases heretofore has 
been one where the state actor has an affirmative duty to dismantle the 
formerly de jure segregated system "root and branch," by eliminating all 
vestiges of the dual system to the extent practicable. See Board o f 
Education o f Oklahoma City Public Schools v. Dowell, 111 S. Ct. 630 
(1991); Wright v. Council o f City o f Emporia, 407 U.S. 451 (1972); 
United States v. Scotland Neck City Board o f Education, 407 U.S. 484 
(1972); Green v. County School Board o f New Kent County, 391 U.S. 
430 (1968); Revised Criteria for Specifying the Ingredients of Acceptable 
Plans to Desegregate State Systems of Higher Education, 43 Fed. Reg. 
6658 (Feb. 15, 1978). While the methods of desegregating or eliminating 
the vestiges of past discrimination in higher education systems will be not 
be identical to those employed in elementary and secondary school 
systems, the obligation of a state with a de jure  history to eliminate those 
vestiges is just as exacting in higher education as it is at the elementary 
and secondary level. See Ayers v. Allain, 914 F.2d at 692 (Goldberg, J., 
dissenting); id. at 693 (Higginbotham, J., concurring in part and dissenting 
in part); Geier v. Alexander, 801 F,2d at 802; Geier v. University o f 
Tennessee, 597 F,2d 1056, 1065 (6th Cir.), cert, denied, 444 U.S. 886 
(1979); United States v. Louisiana, 692 F. Supp. 642, 653-58 (E.D. La. 
1988) (per curiam, three-judge district court), order vacated, 751 F. Supp. 
606 (E.D. La. 1990) (pursuant to Ayers)-, Lee v. Macon County Board o f 
Education, 267 F. Supp. 458, 474-75 (M.D. Ala.) (per curiam, three- 
judge district court) (state colleges have an "affirmative duty to effectuate 
the principles of Brown"), ajf’d sub nom. Wallace v. United States, 389 
U.S. 215 (1967). See also Milliken v. Bradley, 433 U.S. 267, 280 (1977) 
(decree "must be designed as nearly as possible ‘to restore the victims of 
discriminatory conduct to the position they would have occupied in the 
absence of such conduct’" [citations omitted]); United States v. Louisiana, 
380 U.S. 145, 154 (1965) (remedy should be shaped "so far as possible 
to eliminate the discriminatory effects of the past as well as bar like 
discrimination in the future").



15

petitions for certiorari, but the special and important nature 

of this case to the Nation’s history and its will to correct 

serious constitutional wrongs justifies granting the writ.

With respect to higher education, the Court is in much 

the same position now as it was in 1954 with respect to 

elementary and secondary education. At that time, in Brown, 

the Court said:

In approaching this problem, we cannot turn the 
clock back to 1868 when the Amendment was 
adopted, or even to 1896 when Plessy v. Ferguson 
was written. We must consider public education in 
the light of its full development and its present place 
in American life throughout the Nation. Only in this 
way can it be determined if segregation in public 
schools deprives these plaintiffs of the equal 
protection of the laws.

Today, education is perhaps the most important 
function of state and local governments. . . .  It is

:i The impact extends beyond the states of Mississippi, Louisiana and 
Alabama, which are all currently involved in litigation. Numerous other 
state systems, including Maryland, Kentucky, Texas, and Pennsylvania, 
are pending before the Department of Education, Office for Civil Rights, 
for a determination whether they have satisfied their duty to dismantle 
formerly de jure segregated systems of higher education. A determination 
from the Court of the proper standard would apply to these states in 
administrative proceedings as well.



16

required in the performance of our most basic public 
responsibilities, even service in the armed forces. It 
is the very foundation of good citizenship.

347 U.S. at 492-93.

In the thirty-six years since Brown, a college education 

has become a necessary prerequisite, not only to attain upper 

level jobs, but for basic employability in large numbers of 

positions with employers that increasingly require a highly 

skilled and intelligent workforce. As the three-judge district 

court stated in United States v. Louisiana, 692 F. Supp. 642 

(E.D. La. 1988):

In vast, ever-growing segments of the American 
workforce, a high school diploma is not enough; a 
college education is often more critical than a high 
school education. The argument that the State 
requires students to attend primary and secondary 
school but cannot, or at least does not, require them 
to attend college fails to acknowledge the realities of 
our nation today. The purpose for a State’s broad 
police power to enact truancy and other regulatory 
school laws . . .  is to promote an educated, self- 
supporting citizenry that can effectively and 
intelligently participate in our society. . . . [T]hese 
underlying interests of American society are what 
compel persons to seek higher education on their 
own volition. If blacks and other minorities are to



17

compete in the market place for more attractive and 
higher paying jobs in business and industry and to 
avail themselves of the benefits of corporate 
affirmative action programs, they need a college 
degree.

Id. at 656-57 (citations omitted).

Because higher education has become a public necessity 

today much in the same way that elementary and secondary 

education had become a public necessity by 1954, it is 

essential that every citizen have access to higher education 

free from the vestiges and limitations posed by past and 

continuing racial discrimination and segregation.

At a time when progress in attaining that goal is just 

beginning, the Ayers decision erects a solid barrier to further 

advancement. The Fifth Circuit’s finding of compliance 

where a state has done nothing but adopt "good faith, race- 

neutral policies,"22 simply locks in existing, very substantial 

vestiges of past discrimination and segregation. It is ironic

22 Mississippi falls short of even that low standard given its 
discriminatory use of ACT scores and mission designations.



18

that this barrier to further progress has been erected for 

Mississippi, Louisiana, and Texas,23 several of the states that 

have been the most resistant to desegregating their higher 

education systems.

The Ayers decision is contrary to this Court’s

requirement that affirmative and effective measures be used

to dismantle segregated school systems.

[W]here a dual system was compelled or authorized 
by statute at the time of our decision in Brown v. 
Board of Education, . . .  the State automatically 
assumes an affirmative duty ‘to effectuate a transition 
to a racially nondiscriminatory school system, . . . 
that is, to eliminate from the schools within their 
school system ‘all vestiges of state-imposed 
segregation. ’

Keyes v. School District No. 1, 413 U.S. 189, 200 (1973) 

(citations omitted). "Any other approach would freeze the 

status quo that is the very target of all desegregation 

processes." McDaniel v. Barresi, 402 U.S. 39, 41 (1971).

23 Texas operates under a desegregation plan entered with the 
Department of Education but also has been sued by private plaintiffs under 
state law in League o f United Latin American Citizens v. Clements, 
No. 12-87-5242-A, filed December 2, 1987 (107 Dist. Ct., Tex.).



19

If left intact the Ayers decision will assure that the 

consequences of the serious and longstanding constitutional 

violations in the critical area of higher education will continue 

uncorrected and with incalculable harmful effects on the lives 

of African American citizens.

CONCLUSION

For these reasons, LDF urges the Court to grant both 

petitions for writ of certiorari.

Respectfully submitted,

Janell M. Byrd 
NAACP Legal Defense and 
Educational Fund, Inc.

1275 K Street, N.W. 
Suite 301
Washington, DC 20005 
(202) 682-1300

* Julius LeVonne Chambers 
Charles Stephen Ralston 
Norman J. Chachkin 
NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel fo r  Amicus Curiae 
* Counsel o f  Record



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