Ayers v. Mabus Motion for Leave to File and Brief of the NAACP Legal Defense and Educational Fund, Inc., American Civil Liberties Union, and the National Conference of Black Lawyers as Amici Curiae in Support of Petitioners

    N os. 90-6588 and 90-1205

In  Th e

Supreme Court of tfje Umtetr States;
O c t o b e r  T e r m , 1991

J ake  A y e r s , J r ., et al.,

v.
R ay Mabu s, Governor 

State of Mississippi, et al.,

U n ited  States  of A m erica ,

v.
R ay Mabu s, Governor 

State of Mississippi, et al.,

Petitioners,

Respondents.

Petitioners,

Respondents.

On Writs of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE AND BRIEF OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AMERICAN CIVIL LIBERTIES UNION, AND THE NATIONAL 
CONFERENCE OF BLACK LAWYERS AS AMICI CURIAE IN 

SUPPORT OF PETITIONERS

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

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

John A. Powell 
American Civil Liberties 
Union Foundation 

132 W. 43rd Street 
New York, NY 10036 
(212) 944-9800

* Julius LeVonne Chambers 
Charles Steven Ralston 
Norman J. Chachkin 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

John W. Garland 
A djoa Aiyetoro 
National Conference of 
Black Lawyers 
1926 6th Street, N.W. 
Washington, D.C. 20001 
(202) 387-5960

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

S u p re m e  C o u r t  o f tfje ® m te b S t a t e s

October Term, 1991

Jake Ayers, Jr., et a l ,
Petitioners,

v.

Ray Mabus, Governor 
State of Mississippi, et a l ,

Respondents.

United States of America,
Petitioners,

vs.

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

Respondents.

MOTION OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., 

AMERICAN CIVIL LIBERTIES UNION,
AND THE NATIONAL CONFERENCE OF BLACK 

LAWYERS FOR LEAVE TO FILE 
BRIEF AS AMICI CURIAE 

IN SUPPORT OF PETITIONERS

The NAACP Legal Defense and Educational, Fund, Inc. 

(LDF), the American Civil Liberties Union (ACLU), and the



2

National Conference for Black Lawyers (NCBL) respectfully 

move the Court for leave to file the attached brief as amici 

curiae in support of petitioners. 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 not responded to request for consent.

The NAACP Legal Defense and Educational Fund, Inc. 

is a non-profit corporation established to assist African 

American citizens in securing their constitutional and civil 

rights. LDF has had a major role in litigation efforts 

challenging discrimination and segregation in education.1 

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

1See, e.g., Brown v. Board o f Education, 347 U.S. 483 (1954). LDF 
represented the plaintiffs in 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

(1962). The questions presented here involve the 

interpretation of five cases litigated by LDF .2

The American Civil Liberties Union (ACLU) is a non­

profit, non-partisan organization with nearly 300,000 

members dedicated to principles of liberty and equality 

embodied in the Constitution. As part of its commitment to 

legal equality, the ACLU has long opposed any forms of state 

imposed racial discrimination.3 This case raises fundamental 

questions about the constitutionality of state imposed 

segregation in higher education. Its proper resolution, 

therefore, is a matter of direct concern to the ACLU.

The National Conference of Black Lawyers (NCBL), 

founded in 1968, is an organization comprised of 

approximately 2,500 black lawyers and legal workers, many

2Bazemore 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.), qff’d mem., 404 U.S. 907 
(1971); Alabama State Teachers Association v. Alabama Public School and 
College Authority, 289 F. Supp. 784 (M.D. Ala. 1968), ajf’dper curiam, 
393 U.S. 400 (1969).

3ACLU currently represents respondents in Brown v. Board o f 
Education, 892 F.2d 851 (10th Cir. 1989), petition fo r  cert, filed, 58 
U.S.L.W. 3725 (U.S. April 26, 1990) (No. 89-1681), and Pitts v. 
Freeman, 887 F.2d 1438 (11th Cir. 1989), cert, granted, 111 S. Ct. 949 
(Feb. 19, 1991) (No. 89-1290).



4

of whom are graduates of historically black colleges. 

NCBL’s membership is engaged in legal and legislative 

efforts to increase educational opportunities and advancements 

for black and other minority persons. Several NCBL lawyers 

filed the original complaint in this case.

Given amici’s substantial experience in school

desegregation litigation, it is submitted that the brief will be 

of assistance to the Court. Amici, therefore request that the 

motion be granted.

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

John A. Powell 
American Civil Liberties 
Union Foundation 

132 W. 43rd Street 
New York, NY 10036 
(212) 944-9800

/si Janell M. Bvrd_______
* 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

John W. Garland 
Adjoa Aiyetoro 
National Conference of 
Black Lawyers 

1926 6th Street, N.W. 
Washington, D.C. 20001 
(202) 387-5960

Counsel fo r  Amicus Curiae 
* Counsel o f  Record



TABLE OF CONTENTS

Interest of Amici ...............................................................  1

Statement of the Case...................................................................1

Introduction ........................................................................  1

Statement of Relevant Facts .............................................  5

I. The Establishment and Maintenance of Mississippi’s
Racially Dual System from the Mid-1800’s to 1962 5

II. The Separate and Unequal System of Higher Education
Remains Substantially Intact: 1962-1987   15

Summary of the Argument .............................................  25

A rg u m e n t..............................................................................  27

I. Mississippi’s Duty Under 34 C.F.R. § 100.3(b)(6)(i) To 
"Take Affirmative Action To Overcome The Effects Of 
Prior Discrimination" Is Not Satisfied By Abandoning 
Expressly Discriminatory Policies Where Mississippi’s 
Prior Discrimination Continues to Have Effect. . . 27

A. Petitioners’ Regulatory Claim Is Properly
Considered Prior to the Constitutional Claim . . 27

B. 34 C.F.R. § 100.3(b)(6) (i) Has The Force Of
Law.................................................................................  28

C. Where Continuing Discriminatory Effects of the De
Jure System Exist, 34 C.F.R. § 100.3(b)(6)(i) Mandates 
Implementation of Affirmative Measures To Overcome
Those Effects................................................................  30

1. The Plain Language of §. 100.3 (b)(6) (i) . . .  30

2. The History of § 100.3(b)(6) ( i ) ......................... 31

i



3. The Illustrative Example .................................. 32

4. HEW Criteria Interpreting § 100.3(b)(6)(i) . 32

D .The En Banc Majority Erred In Concluding that 
Bazemore v. Friday Precludes Liability Under 34 
C .F.R. § 100.3(b)(6)(i).    34

II. The Fourteenth Amendment Imposes Upon Mississippi 
An Affirmative Duty to Eliminate the Vestiges of Its 
Racially Dual Higher Educational System "Root and 
Branch." . . . . . . . . . . . .  ....................................  41

A. A Fundamental Tenet of the Court’s Equal
Protection Jurisprudence Is the Affirmative Duty 
to Eliminate the Vestiges of a Discriminatory 
System. ...................................................................... 42

B. The Affirmative Duty To Eliminate The Vestiges
Of A Formerly De Jure System Is Appropiately 
and Necessarily Applied In the Higher Education 
Context If the Harm to Petitioners Is to Cease. . 46

C. Mississippi Has Failed to Eliminate the Dual
System "Root and Branch." ..................................... 51

1. Mississippi Must Eliminate Continuing Intentional
Discrimination. ....................................................... 51

2. The State Must Eliminate Vestiges of the Dual
System Which Continue to Impede Equal Educational 
Opportunity. .......................................................... 55

D . The En Banc Majority Erred In Concluding That
Mississippi Need Not Take Additional Steps To 
Dismantle Its Racially Dual Structure Because To 
Do So Would Preclude Diversity Among 
Institutions and Student Choice.................................  57

ii



1. The Diversity and Choice Ultimately Protected By
the Majority Decision Are Based Upon the Stigma of 
Racial Inferiority Precluded By Brown..............  57

2. The Majority Erred In Concluding That Any Remedy
Would Destroy the System By Precluding Diversity 
of Institutions........................................................... 60

Conclusion 65



TABLE OF AUTHORITIES

CASES PAGE

Adams v. Califano, 430 F. Supp. 118
(D.D.C. 1977). ....................................................... 63

Adams v. Richardson, 356 F. Supp.
92 (D.D.C. 1973), a ff’d, 480
F.2d 1159 (D.C. Cir, 1973 .................................. 17

Adams v. Richardson, 480 F.2d at
1165 (D.C. Cir. 1973)............... ... 17, 63

Alabama State Teachers Association v.
Alabama Public School and College 
Authority (ASTA), 289 F. Supp. 784 
(M.D. Ala. 1968) a ff’d per curiam,
393 U.S. 400 (1969) .............................................. 47

Albem arle  v. Moody, 422 U.S. 405
(1975) . . . . . . .  ................................................  28

Alexander v. Holmes County Board o f
Education, 396 U.S. 19 (1969).......................  16

Arvizu v. Waco Independent School 
D ist., 495 F.2d 499 (5th Cir.

1974)..................   63

Ashwander v. Tennessee Valley
Authority, 297 U.S. 288 (1936).......................  2-8

Batterton v. Francis, 432 U.S. 416
( 1 9 7 7 ) ............   29

Bazemore v. Friday, 478 U.S. 385
(1986)..........................................  26, 34, 35, 36, 39, 40

IV



CASES PAGE

Bazemore v. Friday, 751 F.2d 662 
(4th Cir. 1984), a ff’d in pan, 
rev’d in pan , 478 U.S. 385
(1986)........................................................................  35, 36

Board o f Education o f Oklahoma City 
v. Dowell, 111 S. Ct. 630

(1991)........................................................................ 43, 55

Brown v. Board o f Education,
347 U.S. 483 (1954)....................................10, 12, 48 62

Brown v. Board o f Education,
349 U.S. 294 (1955)..........................................  42

Carter v. Jury Committee o f  Greene
County, 396 U.S. 320 (1970)..............................  44

Chrysler Corp. v. Brown,
441 U.S. 281 (1979).............................................  29

Coffey v. State Education Finance 
Committee, 296 F. Supp. 1389 
(S.D. Miss. 1969)................................................  17

Columbus Board o f Education v.
Penick, 443 U.S. 449 (1979)...........................  55

Dayton Board o f Education v.
' Brinkman, 443 U.S. 526 (1979)........................  55

Donald v. Tubb, No. 3583 (S.D.
Miss. June 10, 1964)...............   16

Ford Motor Co. v. United States,
405 U.S. 562 (1 9 7 2 ) ..........................................  45

v



CASES PAGE

Gaston County v. United States,
395 U.S. 285 (1969) .............................................. 44

Geier v. Alexander,
801 F.2d 799 (6th Cir. 1986) . ......................... 46

Geier v. Dunn, 337 F. Supp. 573
(M.D. Tenn. 1972) .............................................. 46

Geier v. University o f Tenn.,
597 F.2d 1056 (6th Cir.), cert.
deniedx 444 U.S. 886 (1979) ............................... 46

Green v. New Kent County,
391 U.S. 430 (1968) . ....................................  26, 51, 54

Griffin v. County School Board o f 
Prince Edward County, 377
U.S. 218 (1964)...................................................  44

Hunter v. Underwood, 471 U.S. 222
(1985) . ................................................................ 26, 51, 54

Keyes v. School District No. 1,
Denver, 413 U.S. 189 (1973)...........................  43

Keyes v. School District No. 1,
Denver, 521 F.2d 465 ........................ ... 63

Lau v. Nichols, 414 U.S. 563 (1974).....................  33

Lee v. Macon County Board o f Education,
448 F.2d 746 (5th Cir. 1971)...........................  63

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 ( 1 9 6 7 ) ..............................  47

vx



CASES PAGE

Local 93, International Association o f  
Firefighters v. Cleveland,
478 U.S. 501 (1986)..........................................  33

Louisiana v. United States,
380 U.S. 145 (1965).............................................  43

McDowell v. Tubb, No. 3425
(S.D. Miss. June 4, 1963).................................  15

McLaurin v. Oklahoma State Regents,
339 U.S. 637 (1950)..........................................  48

McPherson v. School District No. 186,
426 F. Supp. 173 (S.D. 111. 1976)..................  63

Meredith v. Fair, 305 F.2d 342 
(5th Cir. 1962), cert, denied,
371 U.S. 828 (1962)..........................................  14

Meritor Savings Bank v. Vinson,
A l l  U.S. 57 (1 9 8 6 ) .............................................  33

Milliken v. Bradley,
433 U.S. 267 (1977).............................................  43

Mississippi University fo r  Women v.
Hogan, 458 U.S. 718 ( 1 9 8 2 ) ...........................  24

Missouri ex rel. Gaines v. Canada,
305 U.S. 337 (1938)..........................................  48

Mobile v. Bolden, 446 U.S. 55 (1980)..................  28

Mt. Healthy Board o f  Education v. Doyle,
429 U.S. 274 (1977)..................... ' ................... 54, 63

vii



CASES PAGE

New York City Transit Authority v.
Beazer, 440 U.S. 568 (1979)..............................  28

Norris v. State Council o f  Higher
Education fo r  Virginia, 327 F, Supp.
1368 (E.D. Va. 1971), a ff’dm em .,
404 U.S. 907 (1971).............................................  47

Norwood v. Harrison, 413 U.S. 455
(1973) ...................................................................... 17

Sanders v. Ellington, 288 F. Supp. 937
(M.D. Tenn. 1968) . ........................................... 47

Sipuel v. University o f Oklahoma,
332 U.S. 631 (1948).............................................  48

Skidmore v. Swift, 323 U.S. 134
(1944).....................................................................  33

Standard Oil Co. v. United States,
221 U.S. 1 (1 9 1 1 ) .............................................  44, 45

Swann v. Charlotte-Mecklenburg Board
o f Education, 402 U.S. 1 (1971)........................  43, 44

Sweatt v. Painter, 339 U.S. 629
(1950).....................................................................  48

United States v. Alabama, 628 F. Supp 
1137 (N.D. Ala. 1985), rev’d  on 
other grounds, 828 F.2d 1532 
(11th Cir.), cert, denied, 487
U.S. 1210 (1987).........................................   48

United States v. Barnett,
330 F.2d 369 (5th Cir. 1963)...........................  14, 15



CASES PAGE

United States v. Barnett, 376 U.S. 681
(1964).......................................... .. ........................ 14, 15

United States v. Board o f Education o f  
Waterbury, 560 F.2d 1103
(2d Cir. 1977)......................................................  63

United States v. Columbus Municipal
Separate School District, 558 F.2d 228 
(5th Cir. 1977), cert, denied, 434 U.S.
1013 (1978).........................................    24

United States v. Crescent Amusement Co.,
323 U.S. 173 (1944)...............   45

United States v. Hinds County School 
Board, 417 F.2d 852 (5th Cir. 1969), 
cert, denied, 396 U.S. 1032 (1970), 
delaying order rev’d sub. nom. 
Alexander v. Holmes County Board
o f Educ., 396 U.S. 19 (1969)...........................  16

United States v. Lawrence County 
School District, 799 F.2d
1031 (5th Cir. 1986)..........................................  24

United States v. Louisiana, 692 
F. Supp. 642 (E.D. La.

1988, vacated, 751 F. Supp.
606 (E.D. La. 1 9 9 0 ) ....................................  39, 47, 49

United States v. Mississippi,
567 F.2d 1276 (5th Cir. 1978)...........................  24

United States v. Natchez Special 
Mun. Separate School D ist.,
No. 1120 (W) (S.D. Miss.
Jul. 24, 1989)...................................................... 24

IX



CASES PAGE

United States v. Pittman,
808 F .2d 385 (5th Cir. 1987) . . . . . . . . . .  24

United States v. Scotland Neck 
City Board o f Education,
407 U.S. 484 (1972) .................................... ..  . 55

United States v. United States 
Gypsum Co., 340 U.S. 76
(1950) . . . . . . . . . . . . . . . . . . . . . . .  45

United States v. Wells Fargo
Bank, 485 U.S. 351 (1988) . ............................ 28

Wade v. Mississippi Cooperative 
Extension Serv., 372 F.
Supp. 126 (N.D. Miss. 1974), 
a ff’d in relevant part,
528 F.2d 508 (5th Cir. 1976)...........................  19

Williams v. Mississippi,
170 U.S. 213 (1898)..........................................  7

Wright v. Council o f City o f
Emporia, 407 U.S. 451 (1972)........................ . 55

STATUTES, CONSTITUTIONS, AND
REGULATIONS

42 U.S.C. §2000d .................................................... 29, 31

20 U.S.C. §1001-1146a ................................................  48

Smith-Lever Act of 1914, Ch. 79,
38 Stat. 372 ............. .. ............................................  8

x



STATUTES, CONSTITUTIONS, AND 
REGULATIONS PAGE

1862 Morrill Land Grand Act,
Ch. 314, 24 Stat. 440 .............................................  6

34 C.F.R. §100.3(b)
(6) ( i ) .....................  25, 26, 28, 29, 30, 31, 32, 34, 40

34 C.F.R. §100.5 (h ) ..................... ........................  25, 32, 40

43 Fed. Reg. 6658 ........................ . .32 , 33, 39, 61, 62, 64

38 Fed. Reg. 17,979 ......................................................... 31

38 Fed. Reg. 17,920 ..................... .................................  29

29 Fed. Reg. 16,299 .....................

51 Cong. Record 3 ........................ .................................  8, 9

Miss. Const, art. VIII,
§213-B (1954) ........................

Miss. Const, of 1890,
art. 2, §207 ..............................

Act of April 5, 1956,
1956 Miss. Laws 337 . . . . ..............................  12

Act of April 5, 1956,
1956 Miss. Laws 303 . . . . ..............................  12

Resolution of Interposition,
1956 Miss. Laws 741 . . . .

Act of Feb. 24, 1956,
1956 Miss. Laws 366 . . . . ............ .. ............... 12

Act of April 4, 1955, 
1955 Ex. Sess. 133

xi

12



STATUTES, CONSTITUTIONS, AND 
REGULATIONS PAGE

1944 Miss. Laws Ch. 159 .............................................. 10

1940 Miss. Laws 352 ....................................................... 10

1878 Miss. Laws, Ch. XIV,
§35 . . . . . . . .  ......................................................... 6

Revised Code of Mississippi 
(1857) Ch. 33, §10,
art. 51 ........................................................................... 5

Mississippi Code of 1798-1848 
(A. Hutchinson, 1848)

Ch. 9, art. 37 . .................................................... 6

Ch. 9, art. 45 . . . . .  ........................................ 6

Ch. 37, art. 3, § 2 ................................................  5

GOVERNMENT REPORTS

Bureau of Census, U.S. Dept.
of Commerce (1987)..........................................  49

Bureau of Education, United 
States Dept, of the Interior,
Survey o f  Negro Colleges &
Universities ( 1 9 2 9 ) .............................................  9

Dept, of Labor, Occupational
Quarterly Outlook (1990).................................  49

Dept, of Labor, Dept, of Educ.,
Dept, of Commerce, Building
a Quality Workforce (1988)..............................  49

xii



GOVERNMENT REPORTS PAGE

Population o f the United States
in 1860 ..................................................................  7

Seventh Census o f  the United
States (1 8 5 3 ) ............................................   7

Sixth Census or Enumeration o f  
the Inhabitants o f  the
United States (1841).............................................  7

State Superintendent of Education,
Twenty Years o f  Progress,
1910-1930 and a Biennial
Survey Scholastic Years
1929-30 and 1930-31 o f Public
Education in Mississippi (1 9 3 1 ) .....................  8, 9

State Superintendent of Public 
Education, Biennial Report 
and Recommendations to the 
Legislature o f  Mississippi 
fo r  the Scholastic Years 
1937-38 and 1938-39
(1939)............................................................................ 10

BOOKS

Branch, Parting the Waters America in
the King Years 1954-63 (1988)........................  15

DuBois, Black Reconstruction in
America (1935)............................................................ 6

Foner, Reconstruction, America’s 
Unfinished Resolution: 1863
-1877 (1 9 8 8 ) ............................................................... 6

xiii



BOOKS PAGE

Kirwan, Revolt o f the Rednecks
(1951) ...................................................................... 7

Kluger, Simple Justice (1976) .................................. 58

McMillen, Dark Journey (1989) . .  ......................... 10

Trueheart, The Consequences o f  
Federal and State Resource 
Allocation and Development
Policies fo r  Traditionally 
Black Land-Grant Institu­
tions: 1862-1954 (1979)....................................  6, 9

Woodward, Origins o f  the New
South: 1877-1919 ( 1 9 5 1 ) .................................  7

Woodward, The Strange Career 
o f Jim Crow (3d revised
ed. 1974) . . . . . . . .  .......................................  15

xiv



Interest of Amici

Amici NAACP Legal Defense and Educational Fund, 

Inc., American Civil Liberties Union, and National 

Conference of Black Lawyers1 have extensive experience in 

desegregation litigation and share a committment to the goal 

of equal educational opportunity. Amici believe that their 

views will be of assistance to the Court.

STATEMENT OF THE CASE

Introduction

In broad terms, this case presents the question whether 

the State of Mississippi has taken sufficient steps to satisfy its 

statutory and constitutional duties to dismantle the racially 

dual and discriminatory system of higher education that it 

created and maintained for more than a century. In 

determining whether the dual system or its vestiges continue 

to have discriminatory effects, the history of the development, 

scope and duration of Mississippi’s dual educational system 

is the necessary backdrop. The details of that history, 

therefore, are provided in the factual statement below.

‘Each organization is described fully in the preceding Motion for 
Leave to File and incorporated by reference herein.



2

In amici's view, race always has played an enormous role 

in shaping educational opportunities, and thus, life’s 

opportunities, for the people of the State of Mississippi. In 

the 1870’s Mississippi moved from enforced ignorance 

imposed upon its black population to a system of rigid 

segregation of blacks in grossly inferior educational systems. 

It is undisputed that this practice of rigid segregation and 

inequality continued unbreached at every educational level 

from the 1870’s until at least 1962.

Pressured to abandon its discriminatory system, state 

officials engaged in "massive resistance" leading to 

widespread violence. Creative strategies instituted during the 

period of massive resistance and thereafter, as well as the 

continued existence of a dual structure itself, have 

successfully maintained Mississippi’s segregated and 

profoundly unjust system of higher education, under which 

educational opportunities for the vast majority of black 

Mississippians are severely limited.

Today, 70% of Mississippi’s black students are 

automatically excluded from its five historically white 

institutions (HWIs) of higher education by virtue of an



3

admissions test score requirement whose existence is 

indisputably rooted in intentional discrimination. Thus the 

vast majority of black students attending in-state public 

colleges are effectively limited to choosing among three 

historically black institutions (HBIs), which without apology 

Mississippi funds at a significantly lower rate than the three 

HWIs where 86% of its white college students are educated.

Mississippi at most has made meager efforts to change its 

dual system, as is evidenced by the limited success it has had. 

In 1974, in response to a notice from-federal authorities that 

the state’s higher education system remained racially dual and 

was in violation of Title VI of the Civil Rights Act of 1964, 

Mississippi submitted a "Plan of Compliance." However, the 

federal government found the plan inadequate. Mississippi 

proceeded to implement its inadequate plan, but refused to 

fully fund it.

More evident, in fact, than any attempts to dismantle the 

dual system, are Mississippi’s efforts to maintain the dual 

system through the use of policies that are euphemistically 

labelled "race-neutral" only because their express racial 

characteristics have been eliminated. Those policies seize



4

upon the institutional and personal cumulative deficits bom of 

the inequity of past discrimination as the very justification for 

perpetuating racial disparities.

Much more than "race-neutral" policies -  the thinly 

disguised tools of the massive resistance movement — is 

required to eliminate "root and branch," the deep traces of a 

discriminatory system that has been so firmly implanted as 

Mississippi’s. Nonetheless, a divided en banc Court of 

Appeals for the Fifth Circuit ruled that Mississippi can 

abandon even its meager efforts and need do no more. Amici 

urge the Court to reverse that decision and require affirmative 

measures to eliminate the vestiges of the dual system in order 

to provide black citizens of Mississippi full and equal rights 

to educational opportunities provided by the state.



5

STATEMENT OF RELEVANT FACTS2

I. The Establishment and Maintenance o f  Mississippi’s 
Racially Dual System from  the Mid-1800’s to 1962

In 1823, Mississippi imposed a criminal prohibition on

gatherings of blacks (free and slave) for the purpose of

learning to read or write.3 Most blacks, of course, were still

enslaved in 1844 when the state established the University of

Mississippi.4 The school began operating in 1848, and in

1854 expanded to include a law school.5 The legislature

2We adopt the detailed factual review provided by the Ayers 
petitioners. The following abbreviations are used herein: United States’ 
Petition Appendix ("PA"), Ayers Petitioners’ Petition Appendix ("PPA"), 
United States’ exhibits ("USX"), defendants’ exhibits ("BDX”), Ayers 
plaintiffs’ exhibits ("PX"), stipulations of the parties ("S."), and the trial 
transcript ("Tr."). The Joint Appendix was not completed in time to allow 
citation by amici.

3The statute provided an exception for attendance at religious services 
conducted by a white minister or attended by two "respectable" white 
persons appointed for that purpose and established a penalty of corporeal 
punishment up to 39 lashes for violations. Ch. 37, art. 3, § 2, Mississippi 
Code o f  1798 - 1848 (A. Hutchinson, 1848); Ch. 33, § 10, art. 51, 
Revised Code o f Mississippi (1857)(re-enactment).

‘‘The current names of the institutions are used in this section, except 
where otherwise indicated.

3The University of Mississippi opened its School of Medicine in 1903 
(PA 110a).



6

mandated that the school serve whites only. (PA 109a- 

110a .)6

In 1871, Mississippi’s Reconstruction Legislature7 opened 

Alcorn State University for blacks. In 1878, with the entry 

of the Redeemer Legislature,8 the school was designated as 

the state’s land-grant college for blacks pursuant to the 1862 

Morrill Land Grant Act, Ch. 314, 24 Stat. 440. (PA 110a- 

111a.)9 That same year, the state established Mississippi 

State University and designated it as the land-grant college for 

whites (PA 111a).10 • Thereafter, the state established the

6In 1846, Mississippi set up a system of common schools. Ch. 9, 
art. 37, Mississippi Code o f 1798-1848. See also, ch. 9, art. 45 1)
Mississippi Code o f 1798'-1848 (common schools for "free white youth").

f e e  generally W.E.B. DuBois, Black Reconstruction in America 431- 
51 (1935); E. Foner, Reconstruction, America’s Unfinished Revolution: 
1863-1877 (1988).

*ld.

“The Redeemer Legislature also enacted a statute requiring racial 
segregation in the schools. 1878 Miss. Laws, ch. XIV, § 35. The 
requirement of racially separate schools was made part of Mississippi’s 
Constitution in 1890. Miss. Const, of 1890, art. 2, § 207.

‘“State funding for Alcorn University has consistently been lower than 
that for Mississippi State. W.E. Trueheart, The Consequences o f Federal 
and State Resource Allocation and Development Policies fo r  Traditionally 
Black Land-Grants Institutions: 1862-1954 32-33 (University Microfilms 
International, Ann Arbor, Michigan) (1979). See also Brief of Alcorn 
State University National Alumni Association as Amicus Curiae in Support 
of Petitioners at 4-5.



7

Mississippi University for Women for whites in 1884, the 

University of Southern Mississippi for whites in 1910, and 

Delta State University for whites in 1924 (PA 11 la-114a).

During this period of rapid expansion of educational 

opportunities for Mississippi’s white population, persons of 

African descent comprised the majority of Mississippi’s 

population.11 The state, however, restricted educational 

opportunities for Mississippi’s black majority.12 As 

Mississippi’s United States Senator in 1914, James K. 

Vardaman, a former Governor who at one point served as ex 

officio president of Alcorn, successfully argued against a

"Blacks were a majority of the population in Mississippi from at least 
1840 until 1940, when whites first showed a slim majority. Sixth Census 
or Enumeration o f the Inhabitants o f the United States 250, 252 (1841); 
Seventh Census o f the United States: 1850 447 (1853); Population o f the 
United States in 1860 264, 266 (1864); PX 200 at 351 [census data].

12These restrictions developed out of a fear that blacks would once 
again seek to exercise the vote -- blacks were disenfranchised by 1890 
under the Mississippi Plan, see Williams v. Mississippi, 170 U.S. 213 
(1898)(upholding exclusionary measures); C. Vann Woodward, Origins o f 
the New South: 1877-1919 321-350 (1951) — the belief that the limited 
funding available for education should be spent on whites -- see A. 
Kirwan, Revolt o f the Rednecks 145 (1951) -- and a desire to protect and 
maintain the dominant position of the white race — id. at 145-46 
(Mississippi’s Governor James K. Vardaman argued that money spent for 
Negro education was a "positive unkindness" because it "simply renders 
[the Negro] unfit for the work which the white man has prescribed, and 
which he will be forced to perform." "The negro (sic) . . . will not be 
permitted to rise above the station which he now fills.").



8

provision in the Smith-Lever Act of 1914, Ch. 79, 38 Stat.

372, that would have guaranteed equal funding for black land-

grant colleges. Vardaman argued that the funding for blacks

should be limited and controlled by whites:

[T]he negro (sic) has never enjoyed any civilization 
except that which has been inculcated by the white 
man, and that civilization has lasted only so long as 
he was under the control and domination of the white 
man. When left absolutely to himself he has 
universally retrograded to the barbarism of the 
jungles.

51 Cong. Record 3, at 2652 (1914); see also id. at 2931.13

At the elementary and secondary level, the Mississippi 

State Superintendent of Education reported that for school 

year 1930-31, 98.3% of the total enrollment for black 

children was in the first eight grades, with 64% in grades 

one to three.14 A summary of the values of school plants for 

1929-30 shows $40,000,000 for white schools and $3,052,300 

for blacks.15 Of the total expenditures for elementary and

13With the discretion given to the states by Congress to allocate the 
Smith-Lever Act funds, Mississippi did as Vardaman promised — allocated 
all the funds to its white land-grant college. USX-695t.

14State Superintendent of Education, Twenty Years o f Progress, 1910- 
1930 and a Biennial Survey Scholastic Years 1929-30 and 1930-31 o f 
Public Education in Mississippi 24 (1931).

15Id. at 203.



9

secondary school for 1929-30, 69.5% went to instructional 

services — 60.2% for whites and 9.3% for blacks.16

In higher education, Alcorn, the only public college for 

blacks until 1940, functioned largely as an elementary and 

secondary school. In 1926, of Alcorn’s 702 students, 88 

were in college, 377 in secondary school and 237 in 

elementary school.17 Funding for Alcorn was severely limited 

compared to the five white institutions. The state 

appropriated over $7,000,000 between 1920 and 1930 for 

buildings and permanent equipment at the six higher 

education institutions. Alcorn received the least of any 

institution — $364,000.18

I6Id. at 224. The Superintendent reported that, "no one who is 
familiar with conditions in Mississippi would contend for a moment that 
public education in the rural districts would be possible on any satisfactory 
scale without transportation," id. at 60, and noted that the state provided 
$2,166,842 for transportation in 1929-30. Yet the comparison of the total 
number of vehicles available for transportation in school year 1930-31 
reveals a shocking 4245 for whites compared to 27 for blacks. Id. at 57- 
58.

I7Bureau of Education, United States Department of the Interior, 
Survey o f Negro Colleges and Universities 405, 416-17 (1929).

18Twenty Years o f Progress, supra note 14 at 31. See also, Trueheart, 
supra note 10 at 265, 266. The pattern of disparity in elementary and 
secondary schools also continued through the 1930’s, with the state 
reporting expenditures of $6.8 million for the instruction of white children 
in 1937-38, while spending $1.3 million for black children. Twenty-five

(continued...)



10

In May of 1940, the state assumed control of Jackson 

College for the purpose of training black teachers 

(PA 113a).19 In 1946, the legislature established Mississippi 

Valley State University for the education of black teachers 

and for vocational training for black students. Mississippi 

Valley began operating in 1950. (PA 113a-114a).

Four years later, this Court struck down racial 

segregation in the nation’s public schools. Brown v. Board 

o f Education, 347 U.S. 483 (1954). That same year, 

defendant Board of Trustees issued a report entitled, "Higher 

Education in Mississippi," commonly referred to as the 

"Brewton Report." (PX 200 and USX 29). The report, which 

describes blacks as a "substandard culture group," id. at 127,

18(...continued)
Mississippi counties had no high school for blacks. State Superintendent 
of Public Education, Biennial Report and Recommendations to the 
Legislature o f Mississippi fo r  the Scholastic Years 1937-38 and 1938-39 
15, 89-95 (1939).

19In his 1937 report, the Superintendent of Education reported that 
Jackson College had been offered to the state free of charge provided the 
state operate it as a teacher training institution for blacks. Id. When the 
legislature approved the operation of the school, it downgraded it from a 
college to the "Mississippi Negro Training School," and the school’s 
president became a principal. 1940 Miss. Laws 352. The school’s 
curriculum was reduced from a four-year to a two-year curriculum, but in 
1944, the legislature renamed the school Jackson State College for Negro 
Teachers and the four-year curriculum was restored. 1944 Miss. Laws ch. 
159; N. McMillen, Dark Journey 107-08 (1989).



11

concluded that the goal of educational equality for black

citizens of Mississippi was "still very distant." Id. at 146.

Linking higher education with elementary and secondary

education, the Board stated:

The quantity and quality of higher education is so 
inextricably bound to that on the lower level, 
particularly the secondary level, that it is not possible 
to consider inequalities in higher education at the 
exclusion of others. Opportunities for the Negro 
youth to get the basic secondary school training 
necessary for college admission have been 
considerably less than for the white youth of the 
State.

Id. at 146.20

The Board Report found that " [e]ven greater inequalities 

exist in the area of higher education." Id. at 148. The 

opportunities provided in the black colleges were limited to 

teacher education, agriculture, mechanical arts, practical arts 

and trades, while the five white colleges provided "a variety

“The report showed that for school year 1952-53 there were 398,866 
white children of school age and 496,913 black children of school age 
(almost 100,000 more blacks), yet there were 452 high schools for whites 
and only 247 for blacks (most of which were unaccredited); almost 70% 
of the black teachers had two years or fewer of college training compared 
to 7.5% of the white teachers; average salaries of white teachers with all 
levels of training exceeded those of blacks with corresponding training; 
only 20% of the total spent on transportation was used for blacks; and 
72% of the expenditures for instruction went to whites -- $23,536,022 
compared to $8,816, 670. (PX 200 at 139, 146-47).



12

of undergraduate programs" and "extensive offerings on the 

graduate and professional levels," id. ; salary range for blacks 

was lower in all ranks than the range for whites; of the total 

funding for higher education for the period 1952-54, only 

15.7% was allocated for blacks; and, blacks were compelled 

to leave the state for graduate and professional study. Id.

In September of 1954, Medgar Evers, a black person, 

applied to attend the University of Mississippi Law School. 

The Board rejected his application and at that time imposed 

a "race-neutral" alumni voucher requirement whereby each 

applicant for admission had to submit five letters of 

recommendation from alumni (USX 64 at 379-380). 1955

and 1956 passed with Mississippi’s separate and unequal 

educational system intact.21

‘‘During the post -Brown period of "massive resistance," Mississippi 
furiously enacted laws to negate the effect of Brown. See, e.g., Miss. 
Const, art. VIII, § 213-B (1954) (permitting the legislature to abolish all 
public schools in the state); Act of Feb. 24, 1956, 1956 Miss. Laws 366 
(repealing the compulsory education laws); Resolution of Interposition, 
1956 Miss. Laws 741 (Feb. 29, 1956) (declaring Brown and similar 
decisions null and void within the territorial limits of the state of 
Mississippi); Act of April 5, 1956, 1956 Miss. Laws 303 (giving effect to 
the Resolution of Interposition and to the principle of racial segregation); 
Act of April 5, 1956, 1956 Miss. Laws 337 (maintained racially separate 
school districts); Act of April 4, 1955, 1955 Ex. Sess. 133 (prohibiting 
whites and blacks from attending the same state funded high schools).



13

In 1961, James Meredith applied for admission to the 

University of Mississippi. The Registrar rejected his 

application on February 4, 1961. (PA 120a.) Three days 

later the Board required all persons seeking admission to the 

eight institutions of higher education to take the ACT. 

Shortly thereafter the Board reaffirmed the alumni voucher 

requirement, and authorized each institution to set a minimum 

ACT score for admissions. (PA 120a-121a.) The Mississippi 

Legislature approved the establishment of ACT minimum 

scores with the proviso that the minimum scores "need not be 

uniform between the various institutions" (USX 636, p. 16), 

By 1963, there was "a gentleman’s agreement" that the three 

largest HWIs would require a 15 on the ACT (Tr. 3350 (T. 

Meredith)). By 1966, Delta State also required a minimum 

score of 15 on the ACT for admission (Tr. 3507-08).22

22Thus, with the exception of the University of Mississippi and the 
admission of Meredith by court order, each of these institutions adopted 
an ACT minimum score requirement prior to admission of their first black 
student. See infra note 31. Since at least 1954 Mississippi had recognized 
that reliance on standardized tests scores might discriminate against blacks 
because of the history of inequality. The Brewton Report concluded that 
"much caution should be exercised in interpreting the results o f standard 
tests administered to Negro children." PX 200 at 139 (emphasis added).



14

Meredith successfully challenged the rejection of his 

application. The Court of Appeals for the Fifth Circuit found 

a "policy of planned discouragement and discrimination." 

Meredith v. Fair, 305 F.2d 342, 346 (5th Cir.), cert, denied, 

371 U.S. 828 (1962). The court described the alumni 

voucher requirement as "[o]ne of the most obvious dodges" 

of the desegregation mandate. Id. at S52.23

Mississippi strenuously resisted the order to admit 

Meredith. Authorized by the Board of Trustees to handle the 

matter, Mississippi’s Governor Ross Barnett, in defiance of 

an order of the Court of Appeals for the Fifth Circuit, 

invoked Mississippi’s Resolution of Interposition24 and 

personally blocked Meredith’s registration on September 25, 

1962. Lieutenant-Governor Paul Johnson, Jr., repeated this 

action the following day.25 In response, President Kennedy 

ordered United States Marshals, subsequently supplemented

23The court did not consider the ACT requirement because it was not 
applied to Meredith as a transfer student.

241956 Miss. Laws 741 (Feb. 29, 1956).

25United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) (en banc)-, 
United. States v. Barnett, 376 U.S. 681, 686 (1964). Both were held in 
contempt of court. Id.



15

with federalized Mississippi National Guardsmen and regular 

army troops26 to enforce the court’s order.27 Ultimately, 

Meredith registered at the University on October 1, 1962, 

accompanied by United States Marshals. There he studied 

"under continuous guard until his graduation."28

II. The Separate and Unequal System o f Higher
Education Remains Substantially Intact: 1962-1987

In the post-Meredith period, black Mississippians faced 

continued opposition to efforts to avail themselves of 

educational opportunities available at Mississippi’s white 

institutions. On June 4, 1963, Cleve McDowell was forced 

to obtain a federal court order to gain admission to the 

University of Mississippi Law School.;29 Again, in 1964, 

black student Cleveland Donald had to obtain a court order

26United. States v. Barnett, 330 F,2d at 380; United States v. Barnett, 
376 U.S. at 686. See also C'. Vann Woodward, The Strange Career o f 
Jim Crow 174-75 (3rd revised ed. 1974).

27The federal forces faced armed opposition and a night-long battle 
ensued in which Marshals tried to control the crowd with tear gas; two 
people were killed, 375 injured (166 of them Marshals, 29 by gunshot 
wounds). United States v. Barnett, 376 U.S. at 686; Woodward, supra 
note 26, at 175. See also T. Branch, Parting the Waters, America In the 
King Years 1954-63 647-53, 656-72 (1988).

28United States v. Barnett, 376 U.S. at 686.

29McDowell v. Tubb, No. 3425 (S.D. Miss. June 4, 1963); USX 636,
p. 21.



16

allowing his admission to the University of Mississippi.30 In 

March of 1966, the Mississippi College For Women refused 

to consider applications of six black women. The women 

were forced to file a complaint with the Mississippi Council 

on Human Relations (USX 913, S. 773).31

The decade of the 1960’s brought little in the way of 

change in the elementary and secondary schools, whose 

students, faculty and staff remained rigidly segregated until at 

least the 1970-71 school year.32 With the first real movement 

toward desegregated schools in 1970 came the rapid creation 

and enlargement of racially segregated private academies,

}0Donald v. Tubb, No. 3583 (S.D. Miss, June 10, 1964); USX 636,
p. 21.

^Mississippi’s HWIs enrolled their first black students in the following 
years: University of Mississippi (1962), Mississippi State University
(1965) , Mississippi University for Women (1966), Delta State University
(1966) , University of Southern Mississippi (1967) (PA 116a). The HBIs 
enrolled their first white students in the following years: Alcorn State 
University (1966), Jackson State University (1969), Mississippi Valley 
State University (1970) (PA 117a).

nSee United States v. Hinds County School Bd., 417 F.2d 852 (5th 
Cir. 1969) (per curiam), cert, denied, 396 U.S. 1032 (1970), delaying 
order rev’d sub nom. Alexander v. Holmes County Bd. ofEduc., 396 U.S. 
19 (1969).



17

which Mississippi supported through tuition grants, tuition 

loans, and free textbooks.33

In the winter of 1969-70, the Office for Civil Rights 

("OCR") of the Department of Health, Education and Welfare 

notified Mississippi that it was operating a segregated system 

of higher education in violation of Title VI of the Civil Rights 

Act of 1964, and asked that the state submit a desegregation 

plan within 120 days. Mississippi did not respond.34

In 1973, OCR again advised the state that its higher 

education system was in violation of Title VI and asked the 

state to submit a desegregation plan (USX 407, p .l) . OCR’s 

November 10, 1973 letter to the state in response to the first 

plan submitted sets out the findings of OCR’s investigation of 

the state system. These findings were not disputed at trial.

33Each such strategy to provide public support for a private 
segregated system had to be challenged by black citizens. Norwood v. 
Harrison, 413 U.S. 455 (1973) (Burger, J.)(textbooks); Coffey v. State 
Educ. Finance Comm., 296 F. Supp. 1389 (S.D. Miss. 1969)(tuition 
grants) (unpublished order in same case entered Sept. 2, 1970 prohibiting 
tuition loans).

uAdams v. Richardson, 356 F. Supp. 92, 94 (D.D.C.), aff’d, 480 
F.2d 1159 (D.C. Cir. 1973) (en banc).



18

OCR concluded that the state’s actions since the early

1970’s served to reinforce and perpetuate the dual system. In

comparing the two land-grant colleges, OCR found:

Since 1971 Alcorn has constructed or begun to 
construct faculty housing, an agricultural building, a 
student union expansion, and student dormitories; 
M .S.U. has constructed or begun to construct a 
library annex, a forest products utilization laboratory, 
a veterinary science building, an entomology 
complex, a dairy sciences building, and a seed 
technology building.

Id. at 5. OCR concluded that the construction since 1971 

"reinforced the different agricultural capabilities of the two 

institutions and generally has increased the disparity between 

their physical plants." Id.

Alcorn also suffered in comparison to the University of

Southern Mississippi, the only other four-year institution in

the southern portion of the state. OCR found that,

[s]ince 1970 U.S.M. has initiated or reorganized 21 
academic programs, begun a three-year Bachelor 
Degree program, and upgraded two resident centers 
to degree-granting branches, one of which is close to 
Alcorn in the southwestern comer of the State. In 
the same period Alcorn has approved nine new 
majors. Thus U.S.M. currently grants 15 Bachelor 
Degrees in 8 divisions, covering 105 majors; Alcorn 
grants 2 Bachelor Degrees covering 30 majors.



19

Id. at 5 (emphasis added). In addition to increasing

disparities between the HBIs and the HWIs, OCR also found

that the HWIs were adding programs designed to duplicate

those offered by HBIs. While Jackson State had expanded its

offerings in the education field, the University of Mississippi

just created 6 new departments out of its former 
School of Education. This duplication of most of 
Jackson’s programs in education appears to represent 
a substantial disincentive for white students to attend 
Jackson, although Jackson’s growth in this area could 
have attracted such students.

Id. at 6.

OCR also concluded that the faculties and student bodies 

remained rigidly segregated. Id. at 2-4. Finally, OCR found 

Mississippi’s then proposed plan of compliance inadequate, 

noting that it "states policies of prospective nondiscrimination 

. . . without detailing actions which will eliminate the effects 

of past racial segregation." Id. at 7 .35

After OCR rejected Mississippi’s revised Plan of 

Compliance in 1974, Mississippi nonetheless announced its

33During this period, the Mississippi Cooperative Extension Service, 
a division of Mississippi State University was discriminating against blacks 
in employment and promotion activities. Wade v. Mississippi Coop. 
Extension Serv., 372 F. Supp. 126 (N.D. Miss. 1974), aff'd in relevant 
pan, 528 F.2d 508, 518, 519 (5th Cir. 1976).



20

intent to implement the plan. One glaring omission in the 

plan was the failure to address admissions standards at HWIs. 

(USX 1; BDX 20). Thereafter, in January of 1975, black 

citizens of Mississippi filed this action, and on April 21, 

1975, the United States intervened; both complaints identified 

the admission standards as discriminatory.

In 1975-76, the Board began to reexamine its admissions 

standards, Tr. 3550 (T. Meredith), and in the process was 

provided with numerous objections to the use of a minimum 

ACT score as the sole criterion for admission,36 including the 

fact that a survey of 15 major universities in 13 Southern and

36Board documents reveal the following possible objections (USX 56):

1. High school grades have provided the best single predictor of 
college success. However, it is the consensus of opinion that 
aptitude test scores along with high school grades will give a 
better projection of college success in the first year of 
performance. [See PPA 110 (ACT confirming that grades and 
ACT scores combined are a better predictor of success in 
college than ACT scores alone)]

2. Standardized tests are generally considered to have a degree of 
cultural-ethnic bias.

3. The historically black institutions are committed to upgrade 
those citizens with the greatest educational deficiencies.

4. Allocation of resources is related to enrollment and production 
of student credit hours.

5. Substantial federal grants are available for special service 
programs (remedial) at institutions of higher learning.



21

border states revealed that none relied on test scores alone for

admissions decisions and that 13 used high school grades in

the admissions process (USX 56).37

On May 20, 1976, the Board adopted admissions policies

requiring, for the 1977-78 school year, that the eight

universities limit enrollment of entering freshman to those

scoring nine or above on the ACT. The policy required that,

[tjhose institutions which presently have an entrance 
standard requiring a higher [than 9] ACT score must 
maintain that minimum admission score.

(USX 48) (emphasis added). Thus, the institutions primarily

affected by the 1976 policy were the HBIs, which previously

had no minimum ACT score requirements.38

On February 17 and December 15, 1977, the Board

amended the exceptional admission policy, limiting the

number of students who could be admitted with ACT scores

37At this time the four HWIs utilizing a 15 cut-score on the ACT had 
probationary admissions policies for students with ACT scores below 15. 
None of these institutions had numerical restrictions on the number of 
students that could be admitted on probationary status (USX 39 pp.4-5).

38The HWIs previously had admitted relatively small numbers of 
students in the 9-14 ACT score interval (BDX 176, 177). For example, 
while 25,818 students attended HWIs in 1972 (USX 407, p.3), the five 
HWIs admitted only 485 students (1.8%) with scores below 15 for the 
following academic year (BDX 176).



22

between 9 and 14 (USX 48). Although each of the HBIs 

already maintained lower minimum score requirements for 

regular admission, the Board assigned each of them much 

more expansive exceptional admissions roles, while none of 

the HWIs was authorized to allow substantial numbers of 

exceptional admissions.39

In 1981, the Board adopted new mission designations for 

the eight universities (PX 316), dividing them into 

comprehensive, urban and regional categories.40 Id.

39The HWIs may only enroll students with ACT scores below 15 
through the exceptional admissions program; the total number admitted 
may not exceed 5% of the previous years freshman enrollment or 50 
students whichever is greater (PA 127a). The number of students admitted 
under this program is further restricted by the fact that schools are not 
required to use their exceptional enrollment slots (Mississippi University 
for Women did not use any for the period 1982-83 to 1986-87) (BDX 173, 
p.6); HWIs often publicize the 15 requirement but not the exception 
(PA 52a., n. 12. USX 967, pp. 82-84, BDX 141, BDX 161), and at least 
one HWI does not encourage those with scores below 15 to apply 
(Tr. 3467). The cumulative result of these restrictive admissions policies 
is that few exceptional admissions are granted. For example, in the fall 
term of 1984, only 250 of the 3,545 (7%) freshman admitted to HWIs 
came in under the policy, and only 101 of those 3,545 (2.8 %) were black. 
(PX 277, Tr. 4361) (offer of proof).

^The Board assigned three historically white institutions (University 
of Mississippi, University of Southern Mississippi, and Mississippi State 
University), the broadest mission as "comprehensive universities" with 
substantive leadership roles in designated areas. Jackson State University 
was designated as an "urban university," and two HBIs (Alcorn and 
Mississippi Valley), along with the two smallest HWIs (Delta State and 
Mississippi University for Women), were designated "regional 
universities." PX 316.



23

Defendants admitted (Tr. 3656 (T. Meredith)), and the en 

banc majority found that mission designations locked in the 

existing disparities and inequities among the various 

institutions:

[T]he disparities are very much reminiscent of the 
prior system. The inequalities among the institutions 
largely follow the mission designation, and the 
mission designations to some degree follow the 
historical racial assignments.

(PA 37a).41

These disparities and continued segregation are well- 

documented in the panel opinion.42

41Board witness, Dr. Thomas Meredith, testified that the mission 
designations precluded Jackson State from developing additional doctoral 
programs, but allowed it to continue with its one doctoral program in 
education. "I don’t believe it encouraged Jackson State for further 
development in the doctorial (sic) arena. We already had three institutions 
doing that." Tr. 3649, T. Meredith. The mission designations also 
precluded Alcorn and Mississippi Valley from going beyond the master’s 
degree level and limited the number of masters degree programs available 
to them. Delta State already offered degrees at the specialist and doctorate 
level, and Mississippi University for Women offered programs at the 
specialist level. Tr. 3654-55, T. Meredith.

42For example, salaries are higher at the HWIs than at the HBIs with 
Jackson State’s salaries — the urban university — in line with those of the 
two historically white "regional" universities; the two historically black 
regional universities have the lowest salaries in the state; program 
offerings are much broader at the three largest HWIs and the two regional 
HBIs have the most limited programs in the state; the comprehensive 
universities receive the most funds per student credit hour, the regionals 
the least, and Jackson State is in the middle; the average total education 
and general expenditures per student in 1986 at HWIs was $8,516 
compared to $6,038 at HBIs; the replacement value of the facilities at the

(continued...)



24

The combination of the 15 ACT minimum score 

requirements and the narrow exceptional admissions 

provisions at the HWIs, work together with the mission 

designations to lock in past disparities. Today, Mississippi 

sends 86% of its white students to the three overwhelmingly 

white "comprehensive" universities that on every substantive 

measure are much better supported than the HBIs which 71%

“ (...continued)
two historically black "regional" institutions are the lowest in the state, 
with Jackson State slightly above the two historically white "regional"

• institutions but far below the lowest "comprehensive" institution (almost 
half the value); faculty, staff and students remain segregated by race (PA 
50a-51, 55a-68a). As of trial, of the 13 members of the Board of 
Trustees, three were black (PA 166a-167a). With respect to the regional 
universities in particular, Delta State fares better than Alcorn or 
Mississippi Valley on almost any measure, and is fairly comparable to 
Jackson State on most measures. See PA 56a, 59a-61a, 68a. The 
Mississippi University for Women, is not a good model for comparison 
because of its small size and primary mission to serve a population that 
historically also has been accorded second-class treatment in education. 
See Mississippi Univ. fo r  Women v. Hogan, 458 U.S. 718, 727 n.13 
(1982).

Problems of continuing segregation at the elementary and secondary 
level also persisted during the period. For example, the Natchez, 
Mississippi school system was desegregated for the first time in the 1989- 
90 school year. United States v. Natchez Special Mun. Separate School 
Dist., No. 1120(W) (S.D. Miss. July 24, 1989)(unpublished). See also 
United States v. Pittman, 808 F.2d 385, 386 (5th Cir. 1987) (over 70% 
of Hattiesburg’s elementary schools remained segregated); United States 
v. Lawrence County School Dist., 799 F.2d 1031, 1040 (5th Cir. 1986) 
(over 50 % of the elementary students were attending racially identifiable 
schools); United States v. Mississippi, 567 F.2d 1276, 1277 (5th Cir. 
1978) (per curiam) (five out of seven elementary schools were virtually 
one race schools); United States v. Columbus Mun. Separate School Dist., 
558 F.2d 228, 229 (5th Cir. 1977), cert, denied, 434 U.S. 1013 (1978) 
(half of the elementary schools were racially identifiable).



25

of its black students attend.43 Thus, profound racial disparity 

and segregation continue to be the hallmarks of Mississippi’s 

higher education system.

SUMMARY OF THE ARGUMENT 

Mississippi’s higher education system violates 34 C.F.R. 

§ 100.3(b)(6)(i), which requires that states which operated de 

jure segregated educational systems take "affirmative action 

to overcome the effects of past discrimination." The 

regulation has the force of law and clearly requires more than 

the adoption of good-faith, race-neutral policies. This is 

evident from 1) the plain language of the regulation, 2) the 

fact that it was adopted in 1973, after it was already clear 

that Title VI and the existing regulations required race- 

neutral policies, 3) an illustrative application in 34 C.F.R. § 

100.5(h) indicating that "additional steps" beyond race 

neutrality are required, and 4) the HEW interpretive 

guidelines which enumerate a variety of affirmative remedial 

steps.

43PPA 137; USX 880. Ninety-nine percent of Mississippi’s white 
students attend HWIs. Id.



26

Bazemore v. Friday, 478 U.S. 385 (1986) does not 

compel the opposite result, for Bazemore presented a radically 

different factual setting. Moreover, unlike Bazemore, where 

the Court placed heavy emphasis on the federal government’s 

position that North Carolina had complied with the applicable 

Department of Agriculture regulations, in Ayers the 

government has never maintained that Mississippi has 

complied with § 100.3(b)(6)(i).

Mississippi is also in violation of the equal protection 

clause, which imposes upon the state an affirmative duty to 

eliminate "root and branch" the vestiges of its dual system. 

This obligation to take measures to undo past discrimination 

has always been a central tenet of school desegregation 

jurisprudence. It is logical and necessary that the affirmative 

duty be applied to higher education because, as the Court 

concluded in Green v. New Kent County, 391 U.S. 430 

(1968), to do otherwise would leave in place the very 

discrimination condemned in Brown. Mississippi has not 

satisfied its affirmative duty because it continues to operate 

under a dual structure shaped by intentional discrimination. 

Hunter v. Underwood, 471 U.S. 222 (1985). In addition to



27

failing to eliminate continuing intentional discrimination, the 

state has failed to eliminate the vestiges of the dual system 

which present a continuing barrier to equal educational 

opportunity. The finding of the en banc majority that further 

dismantling of the racially dual structure would eliminate 

diversity among institutions and student choice was in error. 

The diversity and choice present in the Mississippi system 

today are legacies of the previous regime of de jure 

segregation and cannot be protected. As a remedy hearing 

would demonstrate, true diversity and choice, free of 

discriminatory stigma, are fully compatible with Brown’s 

mandate of educational equality.

ARGUMENT

I. M is s is s ip p i’s  D u ty  U n d er  3 4  C .F .R . § 1 0 0 .3 ( b ) (6) (i)
To "Take A ff ir m a tiv e  A c tio n  To O verco m e  T he  
E ffe c ts  O f  P r io r  D isc r im in a tio n  " I s  N o t S a tis f ie d  B y  
A b a n d o n in g  E x p ress ly  D isc r im in a to ry  P o lic ie s  
W h ere M is s is s ip p i’s  P r io r  D isc r im in a tio n  C o n tin u e s  
to  H a v e  E ffe c t.

A. Petitioners’ Regulatory Claim Is Properly
Considered Prior to the Constitutional Claim.

This Court has maintained consistently that where

constitutional and nonconstitutional claims are presented, it

will first address the nonconstitutional claim where to do so



28

might obviate the need to consider the constitutional issue.

See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347

(1936) (Brandeis, J. concurring).44 Ayers’ Petitioners have

pressed their claim under 34 C.F.R. § 100.3(b)(6)(i) at each

stage of this litigation,45 however, the lower courts have failed

to address it adequately.46

B. 34 C.F.R. § 100.3(b)(6)(i) Has The 
Force O f Law.

Mississippi’s system of higher education is in violation of

34 C.F.R. § 100.3(b)(6)(i), which provides:

In administering a program regarding which the 
recipient has previously discriminated against persons 
on the ground of race, color, or national origin, the 
recipient must take affirmative action to overcome 
the effects of prior discrimination.

44Accord United States v. Wells Fargo Bank, 485 U.S. 351, 354 
(1988); Mobile v. Bolden, 446 U.S. 55, 60 (1980); New York City Transit 
Auth. v. Beazer, 440 U.S. 568, 582 (1979).

4SSee e.g., District Court: Private Plaintiffs’ Findings of Fact and 
Conclusions of Law at C-l. Court of Appeals: Brief for Plaintiffs- 
Appellants at 56 & n.106, 64 & n.123, 66-67 & n.126. U.S. Supreme 
Court: Ayers Petitioners’ Petition for Writ of Certiorari at i, and 41-43.

46The district court referred generally to the Title VI regulations but 
did not apply § 100.3(b)(6)(i) (PA 168a, 182a-184a). The en banc 
majority addressed the regulatory claim in a cursory manner (PA 26a, 
n .l l ) .  The district court apparently applied § 100.3(b)(2) with respect to 
the ACT minimum score requirement (PA 182a), but did so improperly 
because it held that the ACT cut-score was valid even if there were less 
exclusive alternatives that were educationally sound (PA 182a). Compare 
Albermarle v. Moody, 422 U.S. 405, 425 (1975).



29

(PPA 89).47 The regulation was promulgated pursuant to

§ 602 of Title VI which provides, in relevant part:

Each Federal department and agency which is 
empowered to extend Federal financial assistance to 
any program or activity, by way of grant, loan, or 
contract . . .  is authorized and directed to effectuate 
the provisions o f section 2000d o f this title with 
respect to such program or activity by issuing rules, 
regulations, or orders o f general applicability.

42 U.S.C. § 2000d-l (emphasis added).48

This Court has held that where Congress expressly

delegates to an agency the power to implement a statute, as

it did in § 602, Congress entrusts to the agency rather than

the courts primary responsibility for interpreting the statute.

Moreover, substantive rules adopted pursuant to that

delegation have the force of law. See Chrysler Corp. v.

Brown, 441 U.S. 281, 301-03 (1979); Batterton v. Francis,

432 U.S. 416, 425 (1977).

47The regulation is both valid and applicable to Mississippi. The 
district court found that Mississippi has a lengthy history of discrimination 
in its higher education system (PA 114a-117a), and that its higher 
education system receives federal funding (PA 169a, n.7).

48Section 602 requires that such regulations be signed by the 
President. Id. President Nixon approved the adoption of § 100.3(b)(6)(i) 
by 21 Federal agencies in 1973. 38 Fed. Reg. 17920 (July 5, 1973).



30

C. Where Continuing Discriminatory Effects o f  the De 
Jure System Exist, 34 C.F.R. § 100.3(b) (6) (i) 
Mandates Implementation o f  Affirmative Measures 
To Overcome Those Effects.

In its brief reference to the Title VI regulation, the en 

banc majority ruled that the affirmative duty under 

§ 100.3(b) (6) (i) is satisfied by "discontinuing prior 

discriminatory practices and adopting and implementing good- 

faith, race-neutral policies and procedures" (PA 26a). 

Petitioners submit that this holding is in error.

The regulation requires more than simply the adoption of 

race-neutral policies. It requires the adoption of affirmative 

measures to eliminate the vestiges of Mississippi’s dual higher 

education system. This conclusion is compelled by the plain 

language of the regulation, its history, an illustrative example 

in the regulations, and the HEW guidelines promulgated to 

interpret the regulation.

1. The Plain Language of § 100.3(b)(6)(i)

A common sense reading of the regulation’s language, 

which requires "affirmative action to overcome the effects of 

prior discrimination," leads to a conclusion that more is 

required than simply the adoption of policies of



31

nondiscrimination. If the affirmative action requirement 

could be satisfied by adopting race-neutral policies, the 

drafters would have indicated such, by directing recipients to 

take, for example, "affirmative action to end previous 

discriminatory practices." That explicit and stronger language 

was used is an indication that strong steps are required.

2. The History of § 100.3(b)(6)(i)

The original Title VI regulations adopted in 1964 did not 

include § 100.3(b)(6)(i). That section was added in 1973. 38 

Fed. Reg. 17,979 (July 5, 1973). At that time, a

nondiscrimination edict already existed in both Title VI, 

42 U.S.C. § 2000d, and the existing regulations, 29 Fed. 

Reg. 16,299 (Dec. 4, 1964). Thus, the purpose of the 

amendment to the regulation could only have been to make 

clear that in certain circumstances more than 

nondiscrimination was required. To view the 1973 addition 

of an "affirmative action" provision as requiring nothing more 

than race-neutral policies suggests that Title VI and the 

original regulations did not themselves mandate 

nondiscrimination policies. That position is not tenable.



32

3. The Illustrative Example

When § 100.3(b)(6) (i) was added to the HEW’s Title VI

regulations in 1973, the agency also added an "Illustrative

application," which provides, in relevant part:

In some situations, even though past discriminatory 
practices attributable to a recipient or applicant have 
been abandoned, the consequences of such practices 
continue to impede the full availability of a benefit.
If the efforts required of the applicant or recipient 
. . . have failed to overcome these consequences, it 
will become necessary under the requirement stated 
in [§ 100.3(b)(6)(i)] for such applicant or recipient to 
take additional steps to make the benefits fully 
available to racial and nationality groups previously 
subject to discrimination. :

34 C.F.R. § 100.5(h). The "additional steps" must refer to 

something more than race-neutral policies, for the steps 

become necessary only when those policies alone have failed 

to produce equal educational opportunity.

4. HEW Criteria Interpreting § 100.3(b) (6) (i) 

In 1978, the Department of Health, Education and

Welfare (HEW) published its "Revised Criteria Specifying the 

Ingredients of Acceptable Affirmative Action Plans to 

Desegregate State Systems of Higher Education." 43 Fed. 

Reg. 6658 (Feb. 15, 1978). While these guidelines do not 

have the force of law, they "do constitute a body of



33

experience and informed judgment to which courts and 

litigants may properly resort for guidance." Skidmore v. 

Swift, 323 U.S. 134, 140 (1944); see Lau v. Nichols, 414 

U.S. 563, 568 (1974) (court deferred to HEW memorandum 

requiring schools to take affirmative steps to address needs of 

bilingual children).49

The guidelines first affirm the conclusion that states with 

a history of de jure segregation, "are required to take 

affirmative remedial steps and to achieve results in 

overcoming the effects of prior discrimination." 43 fed . 

Reg. at 6659. The guidelines specify the nature of the 

affirmative remedial obligation in a wide variety of areas. 

Each element of the guidelines shares one feature: states are 

required to do more than adopt race-neutral policies.50

49 See also Local 93, Int'lA ss’n o f Firefighters v. Cleveland, 478 U.S. 
501, 517-18 (1986); Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 
(1986).

50 For example, they specify that an acceptable desegregation plan 
shall eliminate program duplication among HWIs and HBIs, adopt specific 
goals and timetables to increase the number of blacks who enter and 
graduate from HWIs and whites who enter and graduate from HBIs, 
43 Fed. Reg. at 6662, and adopt specific goals and timetables to increase 
the number of blacks on university governing boards, and on the faculty 
and staffs of HWIs. Id. at 6661-62.



34

In summary, all of the available indicators ~  the 

regulation’s plain language, its history, the illustrative 

example, and the HEW criteria — compel the conclusion that 

34 C.F.R, § 100.3(b)(6) (i) mandates that fund recipients with 

a history of discrimination must do more than adopt race- 

neutral policies when faced with the continuing effects of past 

discrimination.

D. The En Banc Majority Erred In 
Concluding that Bazemore v. Friday 
Precludes Liability Under 34 C.F.R. §
100.3(b) (6) (i).

The en banc majority’s cursory dismissal of petitioners’ 

regulatory claim (PA 26a & n . l l ;  see also PA 37a), relied 

on this Court’s decision in Bazemore v. Friday, 478 U.S. 385 

(1986). That case involved the application of an identical 

Department of Agriculture regulation to 4-H Clubs and 

Homemaker Clubs. However, the facts of Bazemore are so 

distinct from the facts here (the sole common element being 

the absence of mandatory assignments by the state to either 

clubs or colleges), that application of § 100.3(b)(6)(i) to this 

case necessarily differs substantially.



35

Access. In Bazemore there were no barriers to access to 

any clubs. Here, 70% of black students are automatically 

denied access to the five HWIs by virtue of the ACT 

minimum score requirement.31

Current segregation. There was only limited evidence of 

continuing segregation in Bazemore, in contrast to the 

substantial showing in this case. In Bazemore the racially 

separate administrative structures servicing racially separate 

clubs were merged into a single organization in 1965 ;52 all 

4-H and Homemaker .activities above the community level 

were fully integrated, including the 4-H camps;53 there, was 

no finding by any court on the actual extent of racial 

segregation;54 only 15.7% of all participants in 4-H clubs 

belonged to one-race clubs;55 and there was no information in 

the record about the racial composition of Extension

31PA 51a-54a & n. 13.

Bazemore v. Friday, 751 F.2d 662, 666 (4th Cir. 1984).

33Bazemore Resp. Br. at 48.

SiBazemore Fed. Br. at 37, n.39; see Bazemore, 478 U.S. at 410-11 
(Brennan, J., dissenting).

33Bazemore Fed. Br. at 37, n.39.



36

Homemaker Clubs after 1972, some ten years before trial in 

the case.56 Here, on the other hand, the evidence is 

uncontested that 99% of white students attend HWIs and 71 % 

of black students attend HBIs, each of which has a black 

population of at least 92 %;57 the administration of all HWIs 

is overwhelmingly white and that of HBIs black;58 and black 

students are disproportionately denied access to HWIs due to 

ACT minimum score requirements.59

Other discrimination. In Bazemore there was no 

evidence of discrimination in the provision of any services or 

materials;60 there was no evidence that any person had been 

discriminated against, nor was there evidence that any 

individual had been denied membership in any club.61 In 

Ayers, individual faculty and students testified about the

Bazemore, 478 U.S. at 410-11 (Brennan, J., dissenting). 

57PA 50a, PPA 137.

58PA 58a, n.22.

59PA 51a-54a.

60Bazemore, 751 F.2d at 687 n.128.

61 Bazemore, 478 U.S. at 407.



37

discriminatory treatment that they personally suffered;62 

facilities, funding, and programs provided for the majority of 

black students are inferior to those provided the majority of 

white students;63 and the state continues to use an ACT 

admissions requirement adopted with discriminatory intent.64

Participation rates. There was no evidence in Bazemore 

that blacks participated in the 4-H and Homemaker clubs in 

lower proportions than did whites. Indeed, membership in 

North Carolina 4-H clubs during the ten years prior to trial in 

Bazemore was 32% black, while North Carolina’s population 

was only 22% black.65 Here, in contrast, the participation 

and graduation rates of blacks are significantly lower than the 

participation and graduation rates of whites, particularly at 

the graduate and professional levels.66

62Tr. 2659-2692, 2709-2774, 2777-2803 (students); 2072-2097, 1739- 
1759 (faculty).

“PA 59a-68a.

“PA 51a-54a.

65Bazemore PA 18 la-182a.

“USX 172-204, 880; PX 329(3); PPA 114, 116, 151.



38

Remedial Measures. The concern in Bazemore that the 

only action North Carolina could take to promote integration 

of the clubs would be to make mandatory, race-based 

assignments, is not present here.67 At no stage of this 

litigation have petitioners suggested that students be 

mandatorily assigned to institutions of higher learning based 

on race. Moreover, Mississippi’s complex institutional 

structure provides many opportunities for the state to take 

steps to overcome the effects of past segregation.68 As the 

HEW • Criteria make clear, Mississippi can eliminate 

unnecessary program duplication, provide supportive services 

so that more black students graduate from its colleges and 

professional schools, increase the numbers of blacks who 

serve on the Board of Trustees and who teach at HWIs, and

61 See Bazemore Fed. Reply Br. at 18, n.18.

“While North Carolina had an attenuated relationship to the clubs in 
Bazemore, Mississippi has a powerful and direct relationship to the 
institutions of higher education in this case. The Homemaker and 4-H 
clubs were voluntary groups formed in communities by adult volunteers 
who received only advice and support from the North Carolina Extension 
Service; moreover, their activities did not take place in public facilities. 
Bazemore PA 19a (district court decision). Here, on the other hand, there 
is an entire structure of governing boards, administrators, faculty and staff 
hired by the state, all of whom administer a state-sponsored, state-funded, 
state-controlled system of public education. PA 59a-68a.



39

increase white enrollment at HBIs by ending these schools’ 

inferior status. 43 Fed. Reg. 6658-6649.

Importance o f Higher Education: The Court in Bazemore 

relied upon the "wholly different milieu" of 4-H clubs and 

Homemaker Clubs in contrast to elementary and secondary 

schools involved in Green in making its determination of no 

liability. 478 U.S. at 408. Higher education is, of course, 

radically different from 4-H clubs and Homemaker Ciubs in 

its structure (as illustrated above) and in its goals. As the 

three-judge district court stated in United States v. Louisiana, 

692 F. Supp. 642 (E.D. La. 1988),69 the value of the 

experience provided in 4-H and Homemaker clubs "cannot 

compare to the national need for educated citizens." Id. at 

656.

In all of these respects, Bazemore and Ayers could not be 

more distinct. Moreover, in Bazemore the Court relied 

heavily on the fact that the United States took the position 

that North Carolina was in full compliance with the 

applicable Department of Agriculture regulation. The Court

^[vacated, 751 F. Supp. 606 (E.D. La. 1990) (pursuant to en banc 
decision in Ayers.)]



40

ruled that ”[i]n view of the deference due the Department’s 

interpretation of its own regulation, we cannot accept 

petitioner’s submission that the regulation has been violated." 

478 U.S. at 409.70 Here, the United States has never taken 

the position that Mississippi is in compliance with the Title 

VI regulations. Thus, the absence of agency support for the 

State’s position, as in Bazemore, as well as the strikingly 

different fact pattern, compel the opposite result in this case.

Given the continued existence of a sophisticated and 

extensive dual system that limits educational opportunities for 

black students, and the state’s failure to undertake sufficient 

measures to remedy these continuing discriminatory effects, 

see supra pp. 55-56, there is a current violation of 

§ 100.3(b) (6) (i) which requires a remand for development 

and implementation of a remedy.

Unlike the Title VI regulations at issue here, the Department of 
Agriculture regulations that applied in Bazemore did not include a 
provision parallel to the "illustrative application" contained in 34 C.F.R. 
§ 100.5(h), which together with § 100.3(b)(6)(i) makes explicitly and 
undeniably clear that affirmative steps beyond the mere adoption of 
nondiscriminatory policies are required.



41

II. T h e F o u rteen th  A m e n d m e n t Im p o se s  U pon  M is s is s ip p i  
A n  A ff ir m a tiv e  D u ty  to  E lim in a te  th e  V es tig e s  o f  I ts  
R a c ia lly  D u a l H ig h e r  E d u c a tio n  S ys tem  "R oot a n d  
B r a n c h ."

The en  b a n c  court purported to apply established 

Fourteenth Amendment jurisprudence requiring affirmative 

-steps to eliminate the vestiges of state-created racially dual 

structures:

We therefore hold that to fulfill its affirmative duty 
to disestablish its prior system of de jure segregation 
in higher education, the state of Mississippi satisfies 
its constitutional obligation by discontinuing prior 
discriminatory practices and adopting and 

. implementing good-faith, race-neutral policies and 
procedures.

(PA 26a). This formulation of the state’s duty, however, 

eviscerates the standard which it claims to apply. It fails to 

require the eradication of the very conditions created by the 

dual system that continue to disadvantage the African 

American population whose subordination was the target of 

Mississippi’s dual system. And it is wholly unnecessary to 

adopt such a standard in order to give appropriate 

recognition, in the remedial process, to the values of 

institutional diversity and student choice.



42

A. A Fundamental Tenet o f  the Court’s 
Equal Protection Jurisprudence Is the 
Affirmative Duty to Eliminate the 
Vestiges o f a Discriminatory System.

In Brown v. Board o f Education, 349 U.S, 294, 301

(1955) (Brown II), the Court required states and districts that

had operated racially dual school systems "to effectuate a

transition to a racially nondiscriminatory system," while

recognizing that the task "may call for elimination of a

variety of obstacles," id. at 300, and would necessarily

involve resolution of "varied local school problems." Id. at

299. Applying Brown II in Green v. County School Board o f

New Kent County, 391 U.S. 420 (1968), the Court made it

clear that state authorities were required to act affirmatively

to effectuate this goal, rather than merely to cease assignment

of students by race:

In the context o f  the state-imposed segregated pattern 
o f long standing, the fa c t that in 1965 the Board 
opened the doors o f  the former ‘white ’ school to 
Negro children and o f  the ‘Negro’ school to white 
children merely begins, not ends, our inquiry whether 
the Board has taken steps adequate to abolish its 
dual, segregated system. . . .  [In Brown II, school 
boards that had operated dual systems were] clearly 
charged with the affirmative duty to take whatever 
steps might be necessary to convert to a unitary 
system in which racial discrimination would be 
eliminated root and branch.



43

Id. at 437-38 (emphasis added and citation omitted).

The affirmative duty principle has repeatedly been 

emphasized, in school desegregation cases. Thus, in Swann 

v. Charlotte-Mecklenburg Bd. o f Educ., 402 U.S. 1, 15 

(1971), after summarizing the course of experience from 

Brown to Green, the Court reaffirmed that "[tjhe objective 

today remains to eliminate from the public school all vestiges 

of state-imposed segregation" (emphasis added). Accord, 

e .g ., Bd. o f  Educ. o f Oklahoma City v. Dowell, 111 S. Ct. 

630, 638 (1991); Keyes v. School Dist. No. 1, Denver, 413 

U.S. 189, 200 (1973).71

The Court also has applied the afirmative duty to 

eliminate the vestiges of past discrimination in other racial 

discrimination cases. See, e.g., Louisiana v. United States, 

380 U.S. 145, 154 (1965) (remedy suspending new "race- 

neutral" voting test sustained where prior discrimination had 

drastically reduced potential black voters; the court "has not

nSee also Milliken v. Bradley, 433 U.S. 267 (1977) (approving 
supplemental remedies designed to increase educational achievement and 
holding that decrees in school desegregation cases "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’"). Id. 
at 280 (citations ommitted).



44

merely the power but the duty to render a decree which will 

so far as possible eliminate the discriminatory effects o f  the 

past as well as bar like discrimination in the future") 

(emphasis added);72 Gaston County v. United States, 395 U.S. 

285, 297 (1969)(" ‘Impartial’ administration of the literacy test 

today would serve only to perpetuate these inequities in a 

different form"); Carter v. Jury Comm, o f  Greene County, 

396 U.S. 320, 339-40 & n.46 (1970)(further discriminatory 

selection of individuals for jury rolls enjoined and immediate 

emptying of current jury box. ordered to remedy past 

discrimination).

The affirmative duty to eliminate vestiges in racial 

discrimination cases parallels the scope of equitable relief 

administered by federal courts in other areas.73 In Standard 

Oil Co. v. United States, 221 U.S. 1 (1911), for example, the

See also Griffin v. County School Board o f Prince Edward County, 
377 U.S. 218, 232-34 (1964) (in addition to enjoining the closing of public 
schools to avoid desegregation, district court could require Board to levy 
taxes to support public educational system, and the trial court should 
"enter a decree which will guarantee that these petitioners will get the kind 
of education that is given in the State’s public schools”).

730 f  course, ”[a] school desegregation case does not differ 
fundamentally from other cases involving the framing of equitable 
remedies to repair the denial of a constitutional right," Swann v. Charlotte- 
Mecklenburg Bd. ofEduc., 402 U.S. at 15-16.

\



45

Court articulated the need for remedies of adequate breadth 

as follows:

Remedies two-fold in character become[ ] essential:
1st. To forbid the doing in the future of acts like 
those which we have found to have been done in the 
past which would be violative of the statute. 2d.
The exertion of such measure of relief as will 
effectually dissolve the combination found to exist in 
violation of the statute, and thus neutralize the 
extension and continually operating force which the 
possession of the power unlawfully obtained has 
brought and will continue to bring about.

Id. at 77-78. The principle there declared has been

consistently applied in antitrust suits.74

In summary, the affirmative duty principle is firmly

rooted in the Court’s jurisprudence regarding equitable

remedies.

''‘’See. e.g., Ford Motor Co. v. United States, 405 U.S. 562, 573 n.8 
(1972)("relief must be directed to that which is ‘necessary and appropriate 
in the public interest to eliminate the effects of the acquisition offensive to 
the statute,’" quoting United States v. DuPont de Nemours & Co., 353 
U.S. 586, 607-08 (1957)[emphasis in original]); United States v. United 
States Gypsum Co., 340 U.S. 76, 88 (1950)(trial court which has found 
monopoly to exist "has the duty to compel action by the conspirators that 
will, so far as practicable, cure the ill effects of the illegal conduct, and 
assure the public freedom from its continuance") United States v. Crescent 
Amusement Co., 323 U.S. 173 (1944) (emphasis added).



46

B. The Affirmative Duty To Eliminate The 
Vestiges O f A  Formerly De Jure 
System Is Appropiately and Necessarily 
Applied In the Higher Education 
Context I f  the Harm to Petitioners Is 
to Cease.

It is wholly logical, necessary, and consistent with the 

Court’s Equal Protection jurisprudence that Mississippi be 

requried to eliminate the vestiges of its dual system. The 

importance of higher education to individuals, the state and 

the nation cannot be gainsaid, and application of a lesser duty 

here would perpetuate educational disparities among the 

citizens of Mississippi that are directly traceable to the state’s 

racial discrimination.

Prior to the decisions of the district court and en banc 

majority here, every court that had considered the issue, with 

the exception of one, had concluded that the affirmative duty 

applies with equal force in the higher education context. 

Courts considering desegregation of the Tennessee higher 

education system repeatedly reached this conclusion. Geier 

v. Alexander, 801 F.2d 799, 804-05 (6th Cir. 1986).75

7SSee also Geier v. Univ. o f Term., 597 F.2d 1056, 1065-67 (6th Cir.), 
cert, denied, 444 U.S. 886 (1979); Geier v. Dunn, 337 F. Supp. 573,

(continued...)



47

Three-judge district courts in Virginia and Louisiana ruled 

similarly in Norris v. State Council o f Higher Educ. fo r  

Virginia, 327 F. Supp. 1368 (E.D. Va.), ajf’d mem., 404 

U.S. 907 (1971),76 and United States v. Louisiana, 692 F. 

Supp. 642, 653-58 (E.D. La. 1988), vacated, 751 F. Supp. 

606 (E.D. La. 1990) (pursuant to Ayers) f

75 (...continued)
576-81 (M.D. Term. 1972); and Sanders v. Ellington, 288 F. Supp. 937, 
942-43 (M.D. Term. 1968).

16See also Ayers, 914 F.2d at 692 (Goldberg, J. dissenting); id. at 693 
(Higginbotham, J., concurring in part and dissenting in part); United 
States v. Alabama, 628 F. Supp. 1137, 1171-72 (N.D. Ala. 1985), rev’d 
on other grounds, 828 F.2d 1532 (11th Cir.) (applying affirmative duty), 
cert, denied, 487 U.S. 1210 (1987); Lee v. Macon County Bd. o f Educ., 
267 F. Supp. 458, 474 (M.D. Ala.) (per curiam) (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).

^The sole exception prior to the decisions below is Alabama State 
Teachers Ass’n v. Alabama Pub. School and College Auth. (ASTA), 289 
F. Supp. 784 (M.D. Ala. 1968), ajf’d per curiam, 393 U.S. 400 (1969). 
In ASTA however, the question presented did not involve the dismantling 
of a formerly de jure state-wide system of higher education. The court 
there dealt only with the question whether to enjoin the construction of a 
new institution. The court refused to grant the injunction emphasizing, 
inter alia, that "much of the plaintiffs’ argument is based on speculation." 
Id. at 789. The court concluded that on the record before it, creation of 
the new school was at least arguably as consistent with the asserted "duty 
to maximize desegregation" as the plaintiffs’ proffered resolution. In that 
context, the ASTA court refused to enjoin the construction. We do not, 
therefore, read ASTA’s language regarding the scope of the affirmative 
duty in higher education as announcing a principle of general applicability 
different from that which has been recognized by all other courts except 
in the instant case.



48

Significantly, the decisions of this Court relied upon in

Brown I  were challenges to segregation in the higher

education arena.78 The Court’s statement in Brown regarding

the importance of elementary and secondary education is as

compelling today with respect to higher education as it was in

1954 with respect to a high school diploma:

Today, education is perhaps the most important 
function of state and local governments. . . .  It is 
required in the performance of our most basic public 
responsibilities, even service in the armed forces. It 
is the very foundation of good citizenship.

Brown /, 347 U.S. at 492-93.

Since the 1950’s, the importance of higher education has

become increasingly evident with dramatic increases in

appropriations by the federal government in order to expand

higher education opportunities.79 Limitations on higher

education opportunities have severe consequences,80 as the

McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950); Sweatt 
v. Painter, 339 U.S. 629 (1950); Sipuel v. TJniv. o f Oklahoma, 332 U.S. 
631 (1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938).

’’in the post -Brown era, the federal government enacted a massive 
array of statutes aimed at improving the quality of, and facilitating access 
to higher education. See generally 20 U.S.C.S. § 1001-1146a.

“ College graduates and those with some college education were the 
fastest growing groups in the work force in the 1980’s. Dept, of Labor,

(continued...)



49

three-judge district court recognized 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.

Id. at 656 (citations omitted).

Limitations on higher educational opportunities for blacks 

in Mississippi have severely and adversely impacted the lives 

of black Mississippians. The Brewton Report pointed out the 

following:

[W]hen the 1945 survey was made there were 22 
times as many white doctors in Mississippi in

“ (...continued)
Occupational Quarterly Outlook 3 (Summer 1990). The Dept, of Labor 
found that this trend will continue as jobs become more complex and the 
skills required to perform them increase. While the total number of j obs 
available will increase by only 15% by the year 2000, the number of jobs 
available for college graduates will increase by 50%. Id. at 6. In sum, 
more than half of all new jobs created by the year 2000 will require more 
than a high school education. Dept, of Labor, Dept, of Educ., and Dept, 
of Commerce, Building a Quality Workforce 10 (1988). In addition to 
employment opportunities, higher education leads to increased earning 
power. For example, the average monthly income for persons with 
doctorate ($4,118) and professional ($4,323) degrees is approximately 
double that for those with bachelors degrees ($2,109) and four times that 
for those who hold only high school diplomas ($1,135). Bureau of the 
Census, U.S. Dept of Commerce 8, (Series P-70, No. 21) (Spring 1987).



50

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.

(PX 200 at 149-50.)81 The impact of the cumulative

educational deficit suffered by black Mississippians is

reflected in the fact that in 1979, 44.4% of Mississippi’s

black citizens still lived below the poverty line, compared to

12.7% of its white citizens (PPA 116).

This Court’s resolution: of the question whether the

affirmative duty applies to Mississippi’s higher education

system will determine whether Mississippi’s black citizens

will be afforded educational opportunities equal to those

These disadvantages continue today, as reflected in the facts proved 
at trial. In Mississippi, between 1982 and 1986, for example, blacks 
received only 4.5 % of the medical degrees and 4.4 % of the dental and law 
degrees granted (PPA 179-204). The proportion of degrees received by 
blacks from undergraduate (23.9%) and graduate (20.6%) schools, id., 
while higher than that for professional schools, remains significantly below 
the proportion of black public high school graduates (45.4%)(PPA 151). 
Furthermore, black participation in graduate programs has declined in 
absolute and relative terms since the 1970’s. While non-black enrollment 
in graduate and undergraduate programs increased between 1978 and 1986, 
black enrollment decreased by 28% in graduate programs and 14% in 
undergraduate programs. (USX 172-190, PPA 137).



51

afforded Mississippi’s white citizens. This is the same 

question the Court faced in Green where it found that 13 

years of inaction had left the school children of New Kent 

County in segregated schools, where black children faced 

overcrowding and other educational disadvantages. The 

situation in Mississippi’s higher education system today is no 

different. It cannot be argued with reason or persuasion that 

the majority of the black college students in Mississippi 

receive an education of a quality equal to that received by 

Mississippi’s white students. Nor could it be argued that the 

same harmful effects of racial segregation and discrimination 

condemned in Brown are not present here. The constitutional 

promise of equal protection for Mississippi’s black citizens 

makes it imperative that much more be done. The standard 

endorsed below is flawed because it denies a remedy for this 

constitutional violation.

C . Mississippi Has Failed to Eliminate the
Dual System "Root and Branch."

1. Mississippi Must Eliminate Continuing 
Intentional Discrimination.

This Court has mandated that states must cease the 

operation of intentionally discriminatory practices. Hunter v.



52

Underwood, 471 U.S. 222 (1985). Mississippi continues to 

operate a system whose structure and admissions standards 

concededly are based on intentional discrimination and the 

effect of which continues to be discriminatory. While, 

Mississippi has abandoned its laws explicitly assigning 

students on the basis of race, it has otherwise continued to 

operate the same system through the use of facially race- 

neutral policies that incorporate, rather than eliminate, the 

effects of past intentional discrimination.82

The record reveals and the district court found an 

unbroken chain of intentionally discriminatory state action in 

establishing the structure of the dual system from its 

inception until at least the late 1960’s when the first blacks 

were admitted to HWIs.83 This record of inequality continued

The district court’s analysis, ultimately affirmed by the en banc 
majority, was inadequate in part because it appears to have concluded that 
the continued existence of policies and practices rooted in discrimination 
were to be judged by the current intent of state actors ("defendants do not 
dispute [the existence or scope of the dual system]. The fundamental issue 
before the court at this time, however, is whether defendants are currently 
committing violations of the Thirteenth and Fourteenth Amendments, Title 
VI and 42 U.S.C. § 1981" (empahsis added) (PA 169a-70a),

83The district court found that defendants racially segregative policies 
in 1962 encompassed: "(1) student enrollment, (2) maintenance of branch 
centers of historically white universities in close proximity to the 
historically black universities, (3) employment of faculty and staff, (4)

(continued...)



53

through the 1970’s, when the state, disregarding federal 

mandates, continued to make funding, admissions, and 

curricular decisions that reinforced the dual, structure of the 

system.84 The findings of the en banc majority acknowledge 

that the current "disparities are very much reminiscent of the 

prior system," (PA 37a), and that the "inequalities among the 

institutions largely follow the mission designations, and the 

mission designations to some degree follow the historical 

racial assignments." Id. Defendants admit that the mission 

designations simply maintained the status quo. (Tr. 3656 (T. 

Meredith)). In short, the chain of intentional discrimination 

remains unbroken.

In addition to the intentionally discriminatory structure 

maintained by the mission designations, the two-tiered 

admissions standards for HBIs and HWIs (uniformly higher 

at HWIs) does not pass a test of even facial neutrality. The 

uniformly higher score required at the HWIs is the product of

“ (...continued)
provision and condition of facilities, (5) allocation of financial resources, 
(6) academic program offerings, and (7) racial composition of the 
governing board and its staff. PA 169a. See also PX 200.

MSee supra at 18-19; USX 407.



54

intentional discrimination from the "Meredith days," 

(USX 949 at 51), found by the district court to have been 

adopted because of its discriminatory impact on black 

students (PA 179a.) The Board expressly "maintained" those 

policies in 1976 (USX 48). They remain unchanged and 

continue to exclude black students from HWIs. Given 

Mississippi’s failure to modify the two-tiered structure of its 

admissions policies at HWIs and HBIs which is the product 

of impermissible state action, the legacy of intentional 

discrimination continues.83

The continued use of a policy or practice founded with 

the intent to discriminate violates Hunter v. Underwood, 471 

U.S. 222, unless the state proves that it would have taken the 

same action had it not acted with discriminatory intent. Id. 

at 228, citing Mt. Healthy Bd. o f  Educ. v. Doyle, 429 U.S. 

274, 287 (1977). Mississippi did not come forward with any 

evidence suggesting that the current structure of the system of 

higher education as set out in its mission designations would

85In Hunter, the Court rejected the state’s arguments that the passage 
of time (80 years) had cleansed the provision of its impermissible purpose, 
even where the more blatant discriminatory measures had been removed 
471 U.S. at 232-33.



55

have been established absent racial discrimination. Nor did 

the state show that the uniformly higher admissions standards 

adopted at each HWI prior to the admission of a single black 

person would have been established absent racial 

discrimination. Without such a showing, a violation of the 

Equal Protection Clause clearly is established.

2. The State Must Eliminate Vestiges of the Dual 
System Which Continue to Impede Equal 
Educational Opportunity.

Even in the absence of a finding of continuing intentional 

discrimination,: where a state has operated a former de jure 

segregated system, the affirmative . duty requires it to 

eliminate the vestiges of that illegal system and their 

continuing impact.86 Mississippi has failed to meet that 

obligation.

Mississippi has not taken adequate measures to 

desegregate its higher education system and to ensure that the 

legacy of segregation does not continue to deny black citizens

MBd. o f Educ. o f Oklahoma City Pub. Schools v. Dowell, 111 S.Ct. 
630 (1991); Columbus Bd. o f Educ. v. Penick, 443 U.S. 449 (1979); 
Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526 (1979); Wright v. 
Council o f City o f Emporia, 407 U.S. 451 (1972); United States v. 
Scotland Neck City Bd. o f Educ., 407 U.S. 484 (1972).



56

equal educational opportunity. For example, the state has 

largely restricted blacks to token representation on the Board 

of Trustees, never giving them an effective voice in the body 

charged with making fundamental decisions regarding the 

university system. Similarly, Mississippi has not overcome 

the legacy of the exclusion of black professors from 

employment at HWIs, but instead has allowed the faculty at 

those institutions to remain overwhelmingly white, while 

qualified black professors remain concentrated at HBIs. Nor 

has Mississippi substantially improved the quality of 

education offered at its HBIs in order to attract white students 

to those institutions. Instead it has ensured that those 

institutions offer fewer programs and receive less funding 

than HWIs, and, as a result, attract few white students.

At bottom, Mississippi, having discriminated against its 

black citizens by constructing a higher education system 

notorious for being both separate and unequal, has failed to 

take measures to overcome the effects of such discrimination 

and is in violation of the Constitution.



57

D. The En Banc Majority Erred In 
Concluding That Mississippi Need Not 
Take Additional Steps To Dismantle Its 
Racially Dual Structure Because To 
Do So Would Preclude Diversity 
Among Institutions and Student 
Choice.

1. The Diversity and Choice Ultimately 
Protected By the Majority Decision Are 
Based Upon the Stigma of Racial 
Inferiority Precluded By Brown.

Amici agree that diversity among institutions of higher 

education is a legitimate and valued goal. But, diversity 

based on racial distinctions derived from notions of racial 

inferiority is not. The diversity protected by the en banc 

decision, however, is that of the latter sort, and as such, it is 

constitutionally impermissible.

The en banc majority found the existing disparities 

among institutions "very much reminiscent" of the dual 

system (PA 37a). Neither the district court nor the en banc 

court found that the state had disestablished the racial 

designations of its institutions or the structure supporting the 

dual system. Nonetheless, the courts approved the continued 

racial identity of institutions and operation of a dual structure 

on the ground that students may now choose to follow the



58

state’s continuing racial designations or, in effect, decide to 

cross the color line. Student selection of universities in 

Mississippi today is not free of the vestiges of the state- 

enforced racial discrimination that permeated all aspects of 

life,87 or the continued operation of the dual system today.88 

Choices so heavily influenced by state action are not free. 

Thus, it is not surprising that 99% of Mississippi’s white 

students continue to "choose" historically white institutions.89 

The small number of black students who can overcome the 

ACT barrier90 can "choose" between attending an

87In Brown II, the Southern States were adamant that segregation was 
so Firmly rooted that it would take years to undo. See e.g. Amicus Brief 
for Attorney General of North Carolina at 36 ("[a] social order which is 
the product of three centuries . . . cannot be transformed overnight"); Oral 
Argument in Brown II  of S.E. Rogers, on behalf of R.W. Elliott, at 24 
(we cannot "push the clock forward abruptly to 2015 or 2045"); see R. 
Kluger, Simple Justice, 729-36 (1976).

^The record demonstrates that there are strong disincentives for white 
students to attend HBIs (even where an HBI is the most convenient 
geographically or offers the programs the student needs), because of the 
continuing racial identifiability and stigma of inferiority originally imposed 
on HBIs by the state (USX 16, USX 23 [letters from whites avoiding 
Jackson State because of perceptions that the school is an inferior 
institution and because of its racial identity]).

89USX 880.

Black freshman enrollment in Mississippi’s system in the early 
1980’s was approximately 30%, but has steadily declined since. USX 
172-90. Of that 30% system-wide, only 30% are eligible for the HWIs. 
Thus, no HWI has an enrollment above 18% black. In school year 1985-

(continued...)



59

underfunded and stigmatized HBI or an HWI where there are 

few black faculty or administrators and where racial abuse is 

expected, received and unaddressed by the institution.91 The 

en banc majority concluded that "all students have real 

freedom of choice to attend the college or university they 

wish," (PA 2a), but for 70% of the black students those 

choices are restricted to the three underfunded HBIs or, 

according to the lower courts, a junior college.92

“ (...continued)
86, the University of Mississippi had a 5.9 % black student enrollment and 
Mississippi State had a black student enrollment of 11.3%. PPA 137.

91Tr. 2659-2692, 2709-2774, 2777-2803.

92The junior college option relied upon by the en banc majority and 
the district court as an.avenue for blacks to gain admission to HWIs (PA 
32a-33a) does not provide equal opportunity to the black students who are 
precluded from direct admission as freshmen at HWIs. First, the state 
presented no evidence to suggest that the quality of education or funding 
of a junior college is equal or even comparable to that at the senior 
colleges. Second, there is an obvious difference between attending a 
comprehensive institution for four years as compared with attending a 
junior college for two years and a comprehensive institution for two years. 
Third, the state failed to produce any evidence regarding the actual 
numbers of blacks transferring from the junior colleges to senior colleges, 
or the extent to which such transfers are encouraged and explained to 
students in the junior colleges or high schools. For its conclusion that 
substantial numbers of students transfer, the district court relied upon the 
deposition testimony of one witness from the Mississippi University for 
Women. (PA 133a.) The testimony refers only to a two-year period at 
that University, does not provide any numbers of actual transfers, and 
states only that the "number of transfers had significantly increased" 
during that period (USX 965, p. 117). The witness did not provide the 
number of junior college transfers previously at the institution in order to 
allow the court to weigh the meaning of "significantly increased".

(continued...)



60

The choices that Mississippi makes available are the 

products of racial discrimination. Brown decided that a state 

may not make such choices available to its citizens.93

2. The Majority Erred In Concluding That Any 
Remedy Would Destroy the System By Precluding 
Diversity of Institutions.

The majority rejected Green’s affirmative duty standard 

because it concluded that it "would impose a regime of 

imperatives and uniformity on what are in essence diverse 

institutions, and in doing so would destroy the choices 

available to both black and white citizens" (PA 24a). 

Initially, it must be emphasized that there has never been a 

remedial hearing in this case (PPA 99-101). Therefore, the 

majority was at least premature in its conclusion that any

continued)
Moreover, it is clear that whatever the transfer rate, the number of blacks 
attending HWIs is quite low.

930ther than the arguments specifically relating to the Title VI 
regulations, the discussion of Bazemore, supra at § II.D, is equally 
applicable to the constitutional issues discussed here. An additional 
distinction, however, exists in the constitutional argument. In Bazemore 
the Court accepted the government’s argument, which stated, inter alia, 
that "a system does not become unitary in all respects simply by curing its 
prior discriminatory admissions," Bazemore Fed. Br. at 41 n.45 and that 
a higher education system "must take affirmative remedial action not only 
with respect to admissions, but also, for example, faculty, facilities and 
lingering funding disparities before it will become unitary in all respects." 
Id. at 49 n.48. Under this approach, the lower courts erred in applying 
Bazemore.



61

remedy would preclude diversity among institutions (PA 24a), 

and amici submit, ultimately wrong that desegregation 

precludes legitimate diversity and student choice.

There are many remedial measures that advance 

disestablishment of a segregated and discriminatory system 

and encourage legitimate diversity among institutions and 

student choice. The HEW Criteria, developed with the aid 

and advice of college presidents, education officials, aides to 

governors, students and others, reflect the agency’s expertise 

in higher education desegregation and suggest desegregation 

strategies that recognize and incorporate institutional diversity 

and student choice. 43 Fed. Reg. 6658. Nothing in the 

guidelines suggests or encourages a structure of uniformity in 

state systems of higher education. In fact, the opposite is 

encouraged as the Criteria urge the elimination of 

unnecessary program duplication and the development of 

unique program offerings at HBIs to attract white students.94

^Nor have any of the more than ten state systems of higher education 
that designed and operated desegregation plans developed pursuant to the 
HEW Criteria developed into the uniform and non-diverse systems 
anticipated by en banc majority. Maryland, Kentucky, Texas, Arkansas, 
Oklahoma, Florida, Georgia, Delaware, Virginia and other states have 
operated under plans developed pursuant to the Criteria.



62

Furthermore, amici respectfully, but strongly, disagree 

with the conclusion of the en banc majority that measures 

taken to upgrade the HBIs would lead to "separate but equal" 

schools (PA 37a). Amici note that Mississippi’s current 

system is, as it has always been, a separate and most unequal 

system that perpetuates notions of racial inferiority challenged 

and rejected in Brown.95 The inclination toward separateness 

cultivated by Mississippi’s long history of discrimination can 

be addressed in the remedial phase of the case by requiring 

the state to take all steps practicable to encourage other-race 

attendance at HBIs and HWIs. Again the HEW Criteria 

suggest available measures, and require that the HBIs be 

desegregated, 43 Fed. Reg. 6662. Clearly, remedial 

measures are available that would not force "separate" 

schools.

No discussion of potential remedies can ignore the 

suggestions made throughout this litigation that the 

appropriate remedy would be simply to close or neglect the

9SBrown I, 347 U.S. at 494. See Brief for Appellants in Nos. 1, 2 
and 4 and for Respondents in No. 10 on Reargument in Brown I  at 50- 
66,



63

HBIs. Amici strongly urge the Court to reject that notion as 

offensive to the Constitution. In Adams v. Richardson, 480 

F,2d at 1165, the en banc Court of Appeals for the District 

of Columbia Circuit unanimously recognized the crucial role 

played by the HBIs in higher education and the need to "take 

into account the special problems of minority students and 

Black colleges." On remand, the district court ruled, 

consistent with other courts supervising desegregation 

remedies, that the burdens of desegregation must be borne 

equitably.96 Fulfillment of Brown l l ’s mandate of a "racially 

nondiscriminatory school system" requires that old forms of 

discrimination not be replaced with new ones. A remedy that 

abandons or neglects the HBIs,97 the only institutions that

%Adams v. Califano, 430 F. Supp. 118, 120 (D.D.C. 1977) ("The 
process of desegregation must not place a greater burden on Black 
institutions or Black students’ opportunity to receive a quality public higher 
education.”) See also United States v. Bd. o f Educ. ofWaterbury, 560 
F.2d 1103 (2d Cir. 1977); Keyes v. School Dist. No. 1, Denver, 521 F,2d 
465, 479 (10th Cir. 1975); Arvizu v. Waco Indep. School Dist., 495 F.2d 
499, 504 (5th Cir. 1974); Lee v. Macon County Bd. o f Ed., 448 F.2d 746, 
753-54 (5th Cir. 1971); McPherson v. School Dist. No. 186, 426 F. Supp. 
173, 187 (S.D. 111. 1976).

97Amici are not suggesting that no changes could be made in HBIs or 
that no programs at HBIs could ever be discontinued, or that no HBI could 
ever be closed. Amici are suggesting that it would be unconstitutional to 
close or downgrade only HBIs and to rationalize these decisions by 
pointing to the results of generations of the state’s neglect and 
underfunding, cf. Mt. Healthy, supra at 54.



64

consistently show a commitment to redressing the educational 

deficits visited upon the black citizens of Mississippi, will 

further limit equal educational opportunity for black 

citizens.98 That would be a perverse remedy for the victims

of Mississippi’s discrimination.

*  *  *

The critical finding by the en banc court is that the 

disparities among institutions continue, and that those 

disparities were rooted in the dual system. The mission 

designations simply maintain the dual system under another 

name. Likewise, the intentionally discriminatory ACT 

minimums at the HWIs exclude the majority of black students 

from those institutions that are best supported by the state 

and where the overwhelming majority of Mississippi’s white 

students are educated. Thus not only has the dual system 

continued to exist, it has not even been cleansed of its 

intentionally discriminatory origins. Accordingly, Mississippi 

is in violation of the Equal Protection Clause because of the 

continuing nature of its intentional violation, Hunter v.

^43 Fed. Reg. 6662 (recognizing that certain approaches would be 
likely to impede educational opportunities for black students).



65

Underwood, and because it has failed to satisfy its affirmative 

duty to eliminate the vestiges of the dual system, Dowell, 

Swann, Green, Brown II.

CONCLUSION

For the foregoing reasons, amici respectfully urge the 

Court to reverse the decision below and remand the case for 

a remedial hearing.

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

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

John A. Powell 
American Civil Liberties 
Union Foundation 

132 W. 43rd Street 
New York, NY 10036 
(212) 944-9800

Respectfully submitted,

* 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

John W. Garland 
Adjoa Aiyetoro 
National Conference of 
Black Lawyers 

1926 6th Street, N.W. 
Washington, D.C. 20001 
(202) 387-5960

Counsel fo r  Amicus Curiae 
* Counsel o f  Record