Ayers and United States v. Mabus Brief of the National Bar Association and the National Association for Equal Opportunity in Higher Education as Amici Curiae

    No. 90-6588

In The

Supreme Court of tf)c Um tcb States?
October Term , 1990

J ake Ayers, J r., et al.,
Petitioners,

United States Of America
Plaintiff-Intervenor,

v.
Ray Mabus, Governor,

State of Mississippi, et al.,
Respondents.

On Petition For A Writ Of Certiorari To The 
United States Court of Appeals 

For The Fifth Circuit

BRIEF OF THE NATIONAL BAR ASSOCIATION AND 
THE NATIONAL ASSOCIATION FOR EQUAL 

OPPORTUNITY IN HIGHER EDUCATION 
AS AMICI CURIAE

Of Counsel
E rroll D. Brown 
Cynthia R. Mabry 
Lisa C. Wilson

National Bar Association 
1225 Eleventh Street, N.W. 
Washington, D.C. 20001
National Association F or 
E qual Opportunity 
In H igher E ducation 
400 Twelfth Street, N.E. 
Washington, D.C. 20002

J. Clay Smith, Jr .* 
Herbert O. Reid, Sr. 
Howard University School 

of Law
2900 Van Ness Street, N.W. 
Washington, D.C. 20008 
(202) 806-8028
* Counsel of Record

February 25, 1991

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



ra
fts

.

v

QUESTION PRESENTED

Whether a State that has maintained a de jure 
system of segregation in publicly supported higher 
education remains under a continuing obligation to 
otherwise administer its university program in ways 
calculated to undo the injuries of its segregated past?



11

TABLE OF CONTENTS

Question P resented 
Table of Contents .
Table of Authorities...................
Consent of the Parties 
Interest of Amici Curlae

Statement of the Case .................
Reasons for Granting Certiorari

L GRANT 0F CERTIORARI IS NECESSARY TO 
5  ? Ln̂ A  SPLIT IN DECISION ON A FED 
ERAL QUESTION IN THE JUDICIAL
CIRCUITS .......

y y uk1 e r Re d  in  d e t e r m in in g
THAT THE INSTITUTION OF A RACE-NEU­
TRAL ADMISSIONS POLICY SATISFIES THE 
STATE’S DUTY TO ELLMLNATE ALL YFS- 
TIGES OF PAST DISCRIMINATION IN PUB­
LICLY SUPPORTED HIGHER EDUCATION 

III. THE PRINCIPLE OF ’GOOD FAITH’ SANG 
TIONS THE VESTIGES OF FORMER DE
l 1? ?  SEGREGATED schoo l  s y st e m s  and
AS A RESULT THREATENS THE FUTURE
r ° " “ ICALLY BLACK COLLEGES AND UNIVERSITIES WHICH IN THE PAST HAVF 
FARED POORLY IN STATE' TONDOIGAND

W - ™ E  NEED f o r  t h e  p r e s e n t  CONTIN­
UATION OF HISTORICALLY BLACK COT 
LEGES AND UNIVERSITIES HAS BFFN 
AFFIRMED BY THE COURT .AND THE EX
ECUTIT'E BRANCH OF GOVERNMENT

Conclusion

Page

ii
iii
1
1
3
3

9o

6

13

14

20



Cases Page

iii

TABLE OF AUTHORITIES

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.

Alabama State Teachers Association v. Alabama 
Public School and College Authority, 289 F 
Supp. 784 (M.D. Ala. 1968), affd, 393 U.S. 400
(1969) .............................................................  3,4,5

Ayers v. Allain, 674 F. Supp. 1523 (N.D. Miss.
1987), rev’d and remanded, 893 F.2d 732 (5th 
Cir.), affd on reh’g, 914 F.2d 676 (5th Cir.
1990) (en banc) ..............................................  passim

Bazemore v. Friday, 478 U.S. 385 (1986) ..............  5,12
Broum v. Board of Education, 349 U.S. 294

(1955) .............................................................  7,15

Broum v. Board of Education, 347 U.S. 483
(1954) .............................................................  6f7

Geier v. Alexander, 801 F.2d 799 (6th Cir. 1986) . 4,5
Geier v. University of Tennessee, 597 F.2d 1056 (6th

Cir. 1979)................................................. ..  4
Green v. County School Board of New Kent County

391 U.S. 430 (1968) ...................................  . 4
Lee v. Macon County Board of Education, 317 F 

Supp. 103 (M.D. Ala. 1970), affd in part, 453 
F.2d 524 (5th Cir. 1971) ...............................  3

Meredith v. Fair, 199 F. Supp. 754 (S.D. Miss.), 
rev’d and remanded, 305 F.2d 343 (5th Cir’
1962), cert, denied, 371 U.S. 828 (1962) .......  8

Norris v. State Council of Higher Education, 327 
F. Supp. 1368 (E.D. Va.), affd sub. noon.,
Board of Visitors of the College of William and 
Mary v. Norris, 404 U.S. 907 (1971)............

Regents of the University of California v. Bakke 
438 U.S. 265 (1978) ..................................... ’ 7,18



IV

Table of Authorities Continued
Page

Swann v. Charlotte-Mecklenberg Board of Educa­
tion, 402 U.S. 1 (1971).................... ..............  ?

United States v. State of Alabama, 628 F. Sudd

°n °theT grou™&’828 F.2d 1532 (11th Cir. 1987)...................  3

Other Authorities
U.S. Const, art. 1 ......................................  lg ig
U.S. Const, amend XIV.................................  4 12 1?’lg
Blak% n ,i tUr enLeadershfV R o le s  fo r  Predominantly 

Black, Colleges and Universities in  American 
Higher Education, 100 Daedalus: J  Of Am
AcADEAnr Of Art And Sci. 745 (Summer*

.................................................................  19
Smith, Blacks and Education: ‘Don’t Shout Too 

boon —An Annotated Bibliography, 7 Harv 
Black Ltr. J. 99 (1990)..... .......... _  ]5

R. Ravighurst & B. Neugarten, Society And
Education (4th Ed. 1975) ........................  u

J. Meredith, Three Years In  Mississippi (1966) . 8
K‘ Tollett- Black Institute Of Higher Education: 

Inadvertent Victims Or Necessary Sacrifices7 
(Reprint 1981).............................. 15

Executive) Order No. 12677, 54 Fed. Reg. 18869

Executive Order No. 12320, 48 Fed. Reg. 46107
u y » i) ........................................................  17

Proclamation 6019-Nationally Historically Black

Remarks and a Question-and-Answer Session with 
Area Jirnior High School Students, 24 Weekly 
Comp. Pres. Doc. 1498 (Nov. 21, 1988) . . Z . 16



V

Table of Authorities Continued
Page

Remarks at a White House Luncheon for Officials 
of Black Colleges and Universities, 17 Weekly 
Comp. Pres. Doc. 978 (Sept. 21, 1981) ............ 17

Remarks at the Alcorn State University Commence­
ment Ceremony in Lorman, Mississippi, 25 
Weekly Comp. Pres. Doc. 703 (May 22,
1989) ..............................................................  17

Remarks at Hampton Institute Spring Symposium 
on “The Unique Role of the Predominantly 
Black College in American Society” (Apr. 23,
1979) (J. Clay Smith, Jr.) ..............................  13

Remarks on Signing the Executive Order on His­
torically Black Colleges and Universities, 25 
Weekly Comp. Pres. Doc. 633 (May 1,
1989) ..............................................................  17



In The

Supreme Court of tfje ^Hmteti States
October Term , 1990

No. 90-6588

J ake Ayers, J r., et al. ,

Petitioners,

United States of America
Plaintiff - Intervenor,

v.
Ray Mabus, Governor,

State of Mississippi, et al. ,

Respondents.

On Petition For A Writ Of Certiorari To The 
United States Court Of Appeals 

For The Fifth Circuit

BRIEF OF THE NATIONAL BAR ASSOCIATION AND 
THE NATIONAL ASSOCIATION FOR EQUAL 

OPPORTUNITY IN HIGHER EDUCATION 
AS AMICI CURIAE

CONSENT OF THE PARTIES

Petitioners and Respondent have consented to the 
filing of this petition.

INTEREST OF AMICI CURIAE

The National Bar Association (NBA) was founded 
in 1925, and is an organization comprised of 20,000



2

Black lawyers, many of whom are graduates of his­
torically Black colleges and universities, across the 
United States. Since its founding, NBA has been in­
volved in promoting civil rights activities in an effort 
to improve the educational, societal, and economic 
welfare of Black and other disadvantaged Americans. 
NBA, for almost seventy years, has actively partici­
pated in the formation of this nation’s legislative and 
judicial policy affecting the educational advancement 
and opportunities of minority and disadvantaged youth 
and young adults of the nation.

The National Association for Equal Opportunity in 
Higher Education (NAFEO) was founded in 1969, and 
is an association comprised of the presidents of over 
one hundred historically Black public and private col­
leges and universities located in the United States. 
Collectively, these schools, many established prior to 
the Civil War and thereafter, have graduated 
hundreds of thousands of Black and white Americans 
and other minorities whose voices are also repre­
sented by NAFEO. NAFEO was established to ad­
vance the high aims of educating Black Americans 
who were denied an equal opportunity to obtain an 
education at the post-secondary level as a result of 
the vestiges of de jure and de facto segregation. NA­
FEO members are committed to the goal of educating 
students that attend its colleges and universities, and 
dedicated to provide financial and human resources 
necessary to achieving this goal. NAFEO has a unique 
interest in this litigation as, through its membership, 
its members, alumni, and faculty seek to promote the 
widest possible sensitivity to the complex factors in­
volved and the institutional commitment required to 
create successful higher education opportunities for



3

students from groups exposed to the elements and 
vestiges of racism, exploitation, and neglect imposed 
by various states and by other mainstream economic, 
educational, and social institutions of this country.

STATEMENT OF THE CASE

Amici adopt the Statement of the Case as presented 
by the Petitioners.
REASONS FOR GRANTING CERTIORARI

I. GRANT OF CERTIORARI IS NECESSARY TO RE­
SOLVE A SPLIT IN DECISION ON A FEDERAL 
QUESTION IN THE JUDICIAL CIRCUITS

The federal judicial circuits are split as to the scope 
of a state’s duty to eliminate the effects of past, de 
jure segregation in public universities. While the fed­
eral courts agree that the affirmative duty to dis­
mantle a racially dual structure in the elementary and 
secondary levels apply also in the context of higher 
education,1 they do not agree on the question of 
“whether the scope of the duty is as broad in the 
higher education context as has been defined and ap­
plied in the elementary and secondary context.” Com­
pare Ayers v. Attain, 674 F. Supp. 1523, 1552 (N.D.

1 See, e.g., United States v. State of Alabama, 628 F. Supp. 
1137 (N.D. Ala. 1985), overruled on other grounds, 828 F.2d 
1532 (11th Cir. 1987); Norris v. State Council of Higher Edu­
cation, 327 F. Supp. 1368 (E.D. Va.) (three-judge panel), affd  
sub now,., Board of Visitors of the College of William & Mary 
v. Norris, 404 U.S. 907 (1971); Lee v. Macon County Board of 
Education, 317 F. Supp. 103 (M.D. Ala. 1970) (three-judge panel), 
tiff'd in -part, 453 F.2d 524 (5th Cir. 1971); Alabama State Teach­
ers Association (ASTA) v. Alabama Public School and College 
Authority, 289 F. Supp. 784 (M.D. Ala. 1968) (three-judge panel), 
affd, 393 U.S. 400 (1969).



4

Miss. 1987) (Ayers I) and Geier v. University of Ten­
nessee, 597 F.2d 1056 (6th Cir. 1979).

At the elementary and secondary levels of public 
education, this Court has ruled that the scope of the 
duty to desegregate formerly de jure public schools 
includes the affirmative duty to eliminate all “ves­
tiges” or effects of the former de jure segregated 
system. Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968). Amici believe that the 
facts embodied in the case sub judice presents a com­
pelling need for determining the duty of a state in 
disestablishing a formerly de jure, dual system of 
higher education.

The Fifth Circuit maintains that “a state’s affirm­
ative duty is satisfied by the good faith adoption of 
race-neutral policies and procedures.” See Ayers I, 
674 F. Supp. at 1552 (citing ASTA v. Alabama Public 
School and College Authority). By contrast, the Sixth 
Circuit, relying on Green, maintains that “there is an 
affirmative duty imposed upon the state by the Four­
teenth Amendment to the Constitution of the United 
States to dismantle [a] dual system of higher edu- 
cation,” Geier v. Alexander, 801 F.2d 799, 800 (6th 
Cir. 1986), and that the “duty to remove all vestiges 
of state-imposed segregation” is the same as with 
elementary and secondary schools. Id. at 802.

The trial court in the case sub judice followed the 
decision of the Fifth Circuit, concluding that the scope 
of a state’s duty to desegregate a formerly de jure 
public university system is to be narrowly defined. In 
short, the trial court concluded that race-neutral pol­
icies applied in good faith is not only the beginning, 
but the extent of the scope of a state’s duty to de­
segregate public universities in the State of Missis-



sippi. Ayers I, 674 F. Supp. at 1553-54. Relying on 
AST A v. Alabama Public School and College Author­
ity, the trial court concluded that “a state’s affirm­
ative duty is satisfied by the good faith adoption of 
race-neutral policies and procedures.” Ayers I, 674 F. 
Supp. at 1552. The trial court noted that the dis­
tinction articulated in the ASTA case was buttressed 
by this Court in Bazemore v. Friday, 478 U.S. 385 
(1986). Therefore, the trial court read ASTA  and 
Bazemore for the proposition that “the scope of the 
affirmative duty to disestablish a former de jure seg­
regated system of education is to be defined in ac­
cordance with the degree of choice individuals enjoy 
as to whether they wish to attend college at all and, 
if so, which one.” Ayers I, 674 F. Supp. at 1553.

The three-judge panel that reversed the trial court 
in the case sub judice followed the interpretation ap­
plied by Geier v. Alexander. See Ayers v. Allain, 893 
F.2d 732 (5th Cir. 1990) {Ayers II). The Geier court 
held that a “state has an affirmative duty to eliminate 
all of the ‘vestiges’ or effects of de jure segregation, 
root and branch, in a universal setting.” 801 F.2d at 
804. In its opinion, the three-judge panel concluded 
that “[tjhe searching inquiry demanded by Geier im­
plies that the federalism and separation of powers 
concerns involved in finding a state actor liable under 
the equal protection clause will not prevent a federal 
court from demanding unitary status in a public uni­
versity system.” 893 F.2d at 744. An en banc panel 
of the Fifth Circuit set aside Ayers II based upon the 
district court’s opinion. Ayers v. Allain, 914 F.2d 676 
(5th Cir. 1990) {Ayers III).



6

II. THE COURT ERRED IN DETERMINING THAT THE 
INSTITUTION OF A RACE-NEUTRAL ADMISSIONS 
POLICY SATISFIES THE STATE’S DUTY TO ELIM­
INATE ALL VESTIGES OF PAST DISCRIMINATION 
IN PUBLICLY SUPPORTED HIGHER EDUCATION

The public university school system in the State of 
Mississippi consists of eight educational institutions, 
and several entities under the jurisdiction of the Board 
of Trustees of State Institutions of Higher Learning 
(hereinafter “Board of Trustees”)-2 Prior to Brown v. 
Board of Education,3 the Board of Trustees had in­
stituted numerous 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 conditions, 5) the allocation of financial resources, 
6) academic program offerings, and 7) the racial com­
position of the Board and its staff.” Ayers II, 893 
F.2d at 734 (citing A.yers I, 674 F. Supp. at 1551). 
Amici agree with Petitioners that these segregative 
policies still exist in Mississippi, as Petitioners have 
described them in their petition.

Notwithstanding the Court’s mandate that states 
take measures to desegregate their public educational 
institutions, the State of Mississippi maintained its 
dual system of higher education up until the spring 
of 1962, the vestiges of which remain.4 When the

2 See Ayers I, 674 F. Supp. at 1525.
3 347 U.S. 483 (1954) (Brown I).
4 The historically white universities are 1) the University of 

Mississippi, 2) Mississippi State University, 3) the University of 
Southern Mississippi, 4) Mississippi University for Women, and



7

Court rendered its decision in Brown 7, Mississippi 
was constitutionally required to dismantle its dual sys­
tem, and “eliminate all vestiges of its racially dis­
criminatory educational system.” See Brown 7; see also 
Brown v. Board of Education, 349 U.S. 294 (1955) 
(Brown 77); Swann v. Charlotte-Mecklenburg Board of 
Education, 402 U.S. 1, 18 (1971). This ideal of en­
suring the availability of educational opportunities for 
minorities at the college and university level was more 
recently recognized as an important and legitimate 
state interest in Regents of the University of Califor­
nia v. Bakke, 438 U.S. 265, 362 (1978).5 Amici believe 
that, as enunciated in Bakke, state-imposed segrega­
tion has no place in the public university system and 
assert that a state that has historically practiced de 
jure segregation may not simply declare a race-neu­
tral principle to avoid liability for its past deeds and 
lingering effects.

Notwithstanding the Court’s mandate in Brown, the 
Mississippi public higher education system failed to
5) Delta State University. The historically black universities are 
1) Alcorn State University, 2) Jackson State University, and 
3) Mississippi Valley State University.

5 In Bakke, the Court held, as outlined by the Harvard Plan, 
that ethnic diversity could be considered as one of a number of 
factors taken into consideration in the university’s admissions 
program. The Court recognized that “[t]he State certainly has 
a legitimate and substantial interest in ameliorating, or elimi­
nating where feasible, the disabling effects of identifiable dis­
crimination. [The] school desegregation cases [attest] to the 
importance of this state goal . . . ” Id. at 307. As the Court 
further noted in Bakke, “[a]t least since Green . . .  it has been 
clear that a public body which has itself been adjudged to have 
engaged in racial discrimination cannot bring itself into compli­
ance with the Equal Protection Clause simply by ending its 
unlawful acts and adopting a neutral stand.” Id. at 362.

£  i Tr-r-tc^ ■



8

comply with the desegregation ruling until 1962. See 
Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962). In 
Meredith, the University of Mississippi was ordered 
by the Fifth Circuit to admit a Black transfer student, 
James Meredith. Meredith had been a student at Jack- 
son State College (now “Jackson State University”). 
Meredith sought transfer to the University of Missis­
sippi in January, 1961.6 When the University of Mis­
sissippi denied his admission, Meredith filed suit in 
federal district court, which was dismissed. Meredith 
v. Fair, 199 F. Supp. 754 (S.D. Miss. 1961). On 
appeal, as noted in Ayers II, Judge Wisdom of the 
Fifth Circuit wrote:

The efforts of the Board of Trustees [of the State 
Institutions of Higher Learning] and the officials 
of the University of Mississippi together with var­
ious state officials, including the Governor and 
the Lieutenant Governor of the state of Missis­
sippi, and the Mississippi Legislature to impede 
and deter efforts to integrate the student body 
at the University of Mississippi during the 1961- 
62 school year are well documented.

Ayers II, 893 F.2d at 734 n.6 (citing Meredith v. 
Fair).

While the universities operating under Mississippi’s 
public university school system claim to admit * and 
educate undergraduate and graduate students of all 
racial and cultural backgrounds, the racial identifi­
cation of these schools are as vividly apparent today 
as they were approximately thirty years ago, under

6 See generally J. Meredith, Three Years In Mississippi 
(1966).



9

the de jure system.7 Most importantly, however, is the 
fact that differences in funding and educational pro­
grams are also vividly apparent. The Historically 
Black Colleges and Universities (hereinafter 
“HBCUs”) since their inception have received less 
funding and consequently have had less substantive 
academic programs as compared to the more abun­
dantly funded historically white institutions. This all 
too apparent disparity is a result of the differences 
in the purposes or “missions” that each of the schools 
are designated to fulfill by the Board of Trustees.8

7 Black enrollment in the undergraduate programs at the his­
torically white institutions for the years 1985 - 1986 is as follows: 
Delta State University—17.59%; Mississippi State University-
11.0%; Mississippi University for Women—18.0%; University of 
Mississippi—5.9%; and University of Southern Mississippi— 
14.24%. Black enrollment in the undergraduate programs at the 
HBCUs during the same time period is as follows: Alcorn State 
University—95.6%; Jackson State University—91.9%; and Mis­
sissippi Valley State University—99.3%.

Black enrollment in the graduate programs at the historically 
white institutions for 1985 - 86 is as follows: Delta State Uni­
versity—26.2%; Mississippi State University—8.0%; Mississippi 
University for Women—13.0%; University of Mississippi—7.5%; 
and University of Southern Mississippi—8.1%. Black enrollment 
in the graduate programs at the HBCUs during the same time 
period is as follows: Alcorn State University—96.0%; Jackson 
State University—59.0%; Mississippi Valley State University— 
96.7%. See Ayers II, 893 F.2d at 734-35.

8 The basis for these differences was allegedly justified in 1981 
when the Board took measures to define the role and scope of 
its public universities in a document entitled “Mission State­
ments.” See Ayers I, 674 F. Supp. at 1539. The document class­
ified each institution as either “comprehensive,” “urban” or 
“regional.” Such classifications are “based on the number and 
level of degree programs offered by the institution, the fields



10

The Board of Trustee's power in the case sub judice 
is indistinguishable in its purpose and intent from the 
local school board’s power in the Green decision to 
maintain a segregated system.

As noted in Ayers III, the Circuit, on re­
hearing en banc, set aside a three-judge panel, Ayers 
II, and held that while the disparities between the

dT eeS are gIanted’ the 6Xtent t0 which an institution conducts and receives funding for research, and areas of public 
service responsibility.” Id. P

Three historically white universities were designated by the 
Board as comprehensive” universities: Mississippi State Uni- 
ersity, the University of Mississippi, and the University of

uthern Mississippi. The comprehensive designation implies 
I ^  rh!fe lnstltutl0ns offert 1 greater number and higher
nested t * 66 ' ' ' ândJ that each institution [is] ex-
pected to offer a number of programs on the doctoral level but 
not m the same disciplines. Leadership responsibilities in specific 
disciplines have been assigned to each comprehensive unive-sitv
nf v r  j °  promote Pr°gram quality and the efficient utilization ot limited resources.” Id. 1

The histoncally black university, Jackson State University is 
the only institution designated by the Board as “urban ” The 
urban designation defines the school’s role as “one oriented to­
ward service of the urban community, that is, the Citv of Jack- 
som Its mission is to instruct in research and public service with 
particular emphasis on the needs of the urban communitv in 
which it is located.” Id. at 1539-40. ln

r,ema^ ing historically white universities, Mississinpi Uni­
versity for Women and Delta State University, and theremain- 
mg histoncally black universities, Alcorn State University and 
Mississippi Valley State University have been designated 2  “re­
gional universities Id. at 1540. The regional designation “sig- 
rufies a more limited programmatic focus for these institution! 
that is, each is expected to restrict course offerings to qualitv 
undergraduate instruction.” Id. g quality



11

HBCUs and the historically white institutions “largely 
follow the mission designations, and the mission des­
ignations to some degree follow the historical racial 
assignments . . . [T]his does not mean the plaintiff 
class is denied equal education opportunity or equal 
protection of law.” Ayers III, 914 F.2d at 692.9 The 
en banc court held that the Board of Trustees has 
“adopted good-faith, race neutral policies and proce­
dures and have fulfilled or exceeded their duty to 
open Mississippi universities to all citizens regardless 
of race.” Id. In doing so, the en banc court wholly 
rejects the Supreme Court’s holding in Green, stating 
that in the context of public higher education, “[Green]

9 Wholly ignoring the significance of the blatant economic and 
educational disparities between the historically black and histor­
ically white institutions, the en banc court opines that “[i]f black 
citizens in Mississippi may choose among any of the eight uni­
versities in the state, it is no denial of their right to equal 
protection that certain institutions formerly segregated by law, 
continue to provide a more limited range of educational oppor­
tunities than other institutions in the state.” Ayers III, 914 F.2d 
at 688-89. The en banc court fails to acknowledge the purpose 
and effect of the mission labels imposed by the Board of Trust­
ees. While ostensibly placing a “neutral” label on each institu­
tion, these designations in reality serve to condone, to shield, 
to hide the state’s discriminatory funding practices. As noted 
by the three-judge panel decision in Ayers II, the white com­
prehensive universities received the most funding and offered 
the most courses before the Board of Trustees implemented the 
designations in 1981. The designations, based on resources ex­
isting in 1981, were thus objective labels for past discriminatory 
practices. Perceptions of inferiority were perpetuated under the 
fiction of educational reasonableness. The heirarchy of the mis­
sion designations, with the three historically white institutions 
labeled comprehensive, reinforced the image of the white schools 
as the superior institutions in the state. See Ayers II, 893 F 2d 
at 753.



12

has no application to this wholly different milieu.” 
Ayers III, 914 F.2d at 685 (citing Bazemore, 478 U.S. 
at 408). In failing to rely on the principles of Green, 
the court has prematurely conveyed to Mississippi 
school authorities that its present public higher ed­
ucation school system, notwithstanding its continued 
dual operation, is a sufficient showing that past dis­
crimination on all levels has been eliminated. By its 
holding, the en banc court has taken the first step 
towards dismantling the HBCUs, colleges and uni­
versities which the state for years has purposefully 
maintained at underfunded levels, and that now have 
diminished power to survive as the state purports to 
wave the neutral principle flag.

The neutral principle methodology used in Ayers 
III, if allowed to stand, may close all of the public 
HBCUs in the nation. The reason is obvious. After 
Ayers, it may be determined by the political process 
that the Equal Protection Clause of the Fourteenth 
Amendment no longer commands that these schools 
be funded at adequate levels to draw white or Black 
students to their doors. The en banc court failed to 
account for this potential result. Ayers III holds that 
the State of Mississippi no longer excludes Blacks 
from any of its public colleges on account of race, 
hence, Black students may voluntarily attend the his­
torically white colleges and universities in Mississippi, 
reducing or eliminating the constitutional obligation 
of the state to adequately fund the HBCU. Given the 
differences in admission standards, attendance and 
matriculation rates of Black students at the HBCUs 
as compared to the historically white colleges, the 
issue of how to educate Black students in the face 
of this possibility is crucial. Thus, how to deal with



13

displaced Black students, should the HBCUs be dis­
mantled in the wake of Ayers III, is a matter that 
the en banc court failed to address, and is therefore 
a fatal flaw in the court’s neutral principle analysis 
and raises extraordinary and critical public policy is­
sues that cannot be left unaddressed.

III. THE PRINCIPLE OF “ GOOD FAITH” SANCTIONS 
THE VESTIGES OF FORMER DE JURE SEGRE­
GATED SCHOOL SYSTEMS AND AS A RESULT 
THREATENS THE FUTURE OF HISTORICALLY 
BLACK COLLEGES AND UNIVERSITIES WHICH IN 
THE PAST HAVE FARED POORLY IN STATE 
FUNDING AND OTHERWISE

The good faith neutral principle enunciated in Ayers 
III threatens to undermine the existence of HBCUs 
in the State of Mississippi and across the nation. The 
principle will serve as the catalyst for a surgical dis­
mantling of HBCUs because the political body re­
sponsible for the vestiges of the formerly de jure 
segregated school systems now seeks to be grand­
fathered.

The good faith neutral principle methodology enun­
ciated in Ayers III threatens the progress made by 
Blacks through education at HBCUs. From a very 
uncertain beginning a little over a century ago—de­
spite many difficult and unique obstacles, including 
chronic poverty—private and public Black colleges 
have somehow managed to make a distinct, qualita­
tive, basic and lasting contribution to the survival and 
progress of Blacks, and to the enrichment and 
strength of this nation.10

10 See Smith, Commissioner, Equal Employment Opportunity 
Commission, Remarks at Hampton Institute Spring Symposium 
on “The Unique Role of the Predominantly Black College in 
American Society” (Apr. 23, 1979).



14

If the past is prologue, the future for HBCUs in 
Mississippi is clear. While under Ayers III the State 
of Mississippi may claim to open its doors at histor­
ically white universities to all students, Amici believe 
that it is highly predictable that the state may further 
reduce its financial support to HBCUs while past dis­
crimination remains uncorrected. It is documented 
that the State of Mississippi has vigorously resisted 
compliance with the Brown mandate, and emphati­
cally has refused to fund HBCUs to account for the 
decades of underfunding, and has refused to eliminate 
vestiges of a former de jure segregated public uni­
versity system. See Ayers II, 893 F.2d at 753. Thus, 
it is incredulous to intimate that a policy focusing on 
a “good faith, neutral admissions policy” will be an 
impetus for the State of Mississippi to do in the future 
what it has resisted doing in the past when legal and 
moral pressure was applied.

IV. THE NEED FOR THE PRESENT CONTINUATION 
OF HISTORICALLY BLACK COLLEGES AND UNI­
VERSITIES HAS BEEN AFFIRMED BY THE COURT 
AND THE EXECUTIVE BRANCH OF GOVERNMENT

HBCUs developed as a necessity and the only source 
of education for Black youth. A substantial number 
of Black students earned their baccalaureate degrees 
at HBCUs in the South because Blacks were denied 
admission to white and predominantly white schools.11 
Historically speaking, with inadequate financial sup­
port, often strong opposition from the local white pop­
ulation, and little concrete evidence that they could 
succeed, HBCUs assumed the primary responsibility

11 See R. Havighurst & B. Neugarten, Society And 
Education 329 (4th Ed. 1975) (hereinafter Society And 
Education).



15

for reducing illiteracy among Blacks and for training 
desperately needed lawyers, doctors, teachers, mili­
tary officers, homemakers and other professionals. So, 
in the past and now, despite all types of handicaps, 
HBCUs ably set about performing the miracle of 
transforming a Black rural, illiterate, powerless, per­
secuted, former slave people into a predominantly ur­
ban, highly literate, proud people.12

Today, almost forty years after Brown, HBCUs are 
vital to the state, and the Black community in par­
ticular, in that they provide access to, and potential 
academic success for, students who may have been 
denied an opportunity for higher education else­
where.13 However, the Ayers III solution to deseg­
regation—its neutral principle methodology—may 
eventually effect a closing of all HBCUs and eliminate 
the only opportunity for some white students who live 
near their doors and other American and foreign stu­
dents to obtain higher education.

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 
1973), recognized the importance of HBCUs. In that 
case, the court acknowledged the “crucial need” for, 
and the “important role” of, HBCUs in higher edu­
cation:

A predicate for minority access to quality post­
graduate programs is a viable, coordinated state­
wide higher education policy that takes into ac-

\

12 Smith, Blacks and Education: “Don’t Shout Too Soon”—An 
Annotated Bibliography, 7 Harv. Black Ltr. J. 99, 100 (1990).

13 See generally K. Tollett, Black Institute Of Higher Educa­
tion: Inadvertent Victims Or Necessary Sacrifices? (Reprint 1981).



16

count the special problems of minority students 
of Black colleges . . . [T]hese Black institutions 
currently fulfill a crucial need that will continue 
to play an important role in Black higher edu­
cation. . . .

480 F.2d at 1165 (emphasis added). As the court pre­
dicted, the need for HBCUs which developed out of 
necessity in the post-Reconstruction era and beyond 
still exists eighteen years after the Adams opinion 
was written. Over one hundred HBCUs educate a 
universe of students.

The Executive Branch of government has agreed 
with Adams. On several occasions, former President 
Ronald Reagan and President George Bush discussed 
the importance of funding and preserving HBCUs, 
and have issued orders and proclamations to ensure 
that the colleges are properly funded for the contin­
ued education of hundreds of thousands of American 
youth. The Reagan Administration showed the seri­
ousness of its commitment by saving one such HCBU 
from bankruptcy.14 Similarly, on April 28, 1989, soon 
after he became President of the United States, Pres­
ident George Bush appointed a Board of Advisors on 
HBCUs and signed Executive Order Number 12677 
which mandated economic parity for these schools and 
encouraged private economic support. He explained 
the nation’s interest in maintaining HBCUs:

14 Remarks and a Question-and-Answer Session with Area Jun­
ior High School Students, 24 Weekly Comp. Pres. Doc. 1493 
(Nov. 21, 1988). Presidents Reagan and Bush also declared a 
National Historically Black Colleges Week. See, e.g., Proclama­
tion 6019-National Historically Black Colleges Week, 1989, 25 
Weekly Comp. Pres. Doc. 1365-66 (Sept. 18, 1989).



17

For over 100 years, the [historically black col­
leges] have been a special part of our heritage. 
At a time when many schools barred their doors 
to Black Americans, these colleges offered the 
best, and often the only, opportunity for a higher 
education. And today, thank heavens, most of 
those barriers have been brought down by law. 
And yet, historically black colleges still represent 
a vital component of American higher educa­
tion . . . .15

Speaking at a commencement ceremony one month 
later, President Bush noted that Alcorn State Uni­
versity, an HBCU in Mississippi, was a vital com­
ponent to quality public higher education in this 
nation.16

Clearly the en banc panel’s decision in Ayers III 
was decided wrongly as a matter of law, and as a 
matter of public policy. The decision is blind to the 
operative confluent constitutional dimensions of the 
Fourteenth Amendment, and impact on the robust

15 Remarks on Signing the Executive Order on Historically 
Black Colleges and Universities, 25 Weekly Comp. Pres. Doc. 
633 (May 1, 1989); see also Executive Order No. 12677, 54 Fed. 
Reg. 18869 (1989). President Reagan signed a similar mandate 
on September 15, 1981 and declared: “Let us recognize that 
America’s historic Black college is a ‘terrible thing to waste.’ 
And we’re not going to allow it to be wasted.” Remarks at a 
White House Luncheon for Officials of Black Colleges and Uni­
versities, 17 Weekly Comp. Pres. Doc. 978-80, 983 (Sept. 21, 
1981); see also Executive Order No. 12320, 48 Fed. Reg. 46107 
(1981) (President Reagan).

16 Remarks at the Alcorn State University Commencement 
Ceremony in Lorman, Mississippi, 25 Weekly Comp. Pres. Doc. 
703-06 (May 22, 1989).



18

and diverse exchange of ideas and culture that the 
HBCUs contribute to the nation through the state­
ments and discourse of its accomplished graduates 
and student body, which is attached to a “counter­
vailing constitutional interest” in the First Amend­
ment.17 See Bakke, 438 U.S. at 313. In addition, public 
statements and proclamations by Presidents of the 
United States, and the statements and majoritarian 
initiatives of the United States Congress demonstrate 
the public interest in protecting the HBCUs. The Ay­
ers decision, if allowed to stand, may result in the 
closing of HBCUs because long-time opponents of ed­
ucating a segment of the population of the United 
States may find that the Equal Protection Clause of 
the Fourteenth Amendment no longer commands that 
these institutions of higher learning be funded at ad­
equate levels to draw white and Black students to 
their doors. This obvious observation will result in the 
effectuation of the “bypass theory,” that is, Black 
and white students wall “bypass” HBCUs due to the 
fact that HBCUs have been substantially underfunded 
for years by the political process of the states. Clearly 
the resulting “inequality of facilities, lack of academic 
programs, etc.” are being sanctioned by judicial ac­
tivism under the guise of a so-called good faith, neu­
tral principle methodology.

Amici submit that this judicial activism, clothed as

17 As Justice Powell raised in Bakke, as universities benefit 
from the “right to select those students who will contribute the 
most to the ‘robust exchange of ideas’ [embodied in the First 
Amendment,] [i]n this light, [universities] must be viewed as 
seeking to achieve a goal that is of paramount importance in 
the fulfillment of its mission.” 438 U.S. at 313.



19

i
a “good faith, neutral principle” inappropriately shifts 
the responsibility of equality from the State of Mis­
sissippi, which denied such equality, by enactment of 
laws and impermissible conduct, to its innocent Black 
and historically disadvantaged victims.18

The so-called good faith neutral principle method­
ology trammels on the First Amendment freedom of 
the students who attend HBCUs, the faculty who 
teach there, and the exceptional heritage of their al­
umni. The so-called good faith, neutral principle meth­
odology will chill, if not eliminate, the broad diversity 
of speech which continues to emanate from histori­
cally disadvantaged students who attend HBCUs. The 
so-called good faith neutral principle methodology also 
interferes with the commerce of the nation created 
by Black and other historically disadvantaged stu­
dents who travel across the United States to attend 
these schools, and in doing so, directly impacts upon 
the commerce of the nation.

The state should not receive a pardon from its past 
discriminatory conduct using neutral principles until

18 As one scholar has noted: “It is a serious question of social 
policy and or morality when such schools are called an achron- 
isms. These schools supported a grave social responsibility for 
the nation. It is of dubious morality for those who could have 
made different decisions in the past about allocating adequate 
resources to these schools to raise the issue of their survival. 
The morality of the treatment of these schools needs to be raised 
more often.” Blake, Future Leadership Roles for Predominantly 
Black Colleges and Universities in American Higher Education, 
100 Daedalus: J. Am. Academy of Arts and Sci. 745, 747 
(Summer 1971). See also, Ayers II, 893 F.2d at 753; Brief for 
Appellant at 26, Ayers II (No. 88-4103) (Testimony of Dr. Larry 
Leslie).



20

ntted6StlgeS °f SUCh discrimination have been elimi-

For the foregoing reasons, the Petition for Writ of 
be ^ a n atedfi ^  ^  ^  Petitioners in this case should

O f Counsel

E rroll D. Brown 
Cynthia R. Mabry 
Lisa C. Wilson

National Bar Association 
1225 Eleventh Street, N.W. 
Washington, D.C. 20001
National Association For 

Equal Opportunity 
In Higher Education 

400 Twelfth Street, N.E. 
Washington, D.C. 20002
J ames M. Douglas, Dean 
Texas Southern University 
Thurgood Marshall School 

of Law
3100 Cleburne Avenue 
Houston, Texas 77004

Respectfully submitted,

J. Clay Smith, Jr.* 
Herbert O. Reid, Sr.

Howard University School 
of Law

2900 Van Ness Street, N.W. 
Washington, D.C. 20008 
(202) 806-8028
Counsel o f Record

February 25, 1991