Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and DiscriminationVolume VII: The Mississippi Delta Report

Chapter 2

Race and the Public Education System in Mississippi


Scholars have warned that absent innovative policy changes, Mississippi and the rural South will face a work force crisis as a result of the globalization of the regional economy and the shift away from unskilled industrial labor.[1] Mississippi currently lacks the skilled and educated workers necessary to stimulate vigorous economic growth. The state has long been characterized by an out-migration of talent from the region, with a corresponding “brain drain” each year of college students who elect to leave the Delta upon graduation.[2] According to the CEO of one Delta corporation, Mississippi is confronting a “horrific” problem in the area of public education, and as a result, he rejects nearly two-thirds of job applicants to his company because they are unable to meet his company’s hiring criteria.[3]

One of the biggest challenges facing the Mississippi public school system today is poverty. According to Dr. James Hemphill, special assistant to the state superintendent and director of external relations of the Mississippi State Department of Education, this is particularly evident in the Delta where the economy is so depleted that obtaining a quality education is extremely difficult.[4] High rates of poverty coupled with a legacy of unequal educational opportunities for people of color, who make up more than one-third of the population, have left Mississippi’s children at a substantial disadvantage compared with the rest of the nation.


In 1990, 75.2 percent of the total U.S. population had a high school diploma or higher educational attainment. This figure was 77.9 percent for whites and 63.1 percent for blacks. In Mississippi, however, the figures were much lower with a rate of 64.3 percent for the total state population, including 71.7 percent for whites and 47.3 percent for blacks. The gap between educational achievement in Mississippi and the rest of the nation and that between black and white Mississippians are equally dramatic for those with a bachelor’s degree or higher. Compared with 20.3 percent of the total U.S. population, only 14.7 percent of the Mississippi population had a bachelor’s degree or higher. Nationwide the figures for whites and blacks were 21.5 percent and 11.4 percent, respectively, compared with 17.2 percent of Mississippi whites and 8.8 percent of Mississippi blacks. Only Arkansas and West Virginia lagged behind Mississippi in equivalent educational attainment.[5]

In 1995, the national high school graduation rate was about 86 percent—the same level as in 1990.[6] In contrast, Mississippi had a graduation rate of 75 percent in 1995.[7] And that number had declined to 73.8 percent by 1998.[8] Although the total number of public high school graduates is projected to increase 20 percent between 1995–1996 and 2007–2008, in Mississippi the total number is expected to decrease 1 percent.[9] Failing to complete high school has a direct impact on a person’s potential for financial stability and success. In 1992, for example, high school dropouts were three times more likely to receive income from AFDC or public assistance than high school graduates who did not go on to college (17 percent versus 6 percent).[10] And in 1998, high school graduates nationwide had an unemployment rate of 4 percent compared with 7.1 percent for those who had not completed high school.[11]

Education constitutes a major expense for Mississippi. In fiscal year 1995, Mississippi spent $1.478 billion on education or 58.7 percent of all general fund appropriations.[12] The Mississippi public school system comprises 149 school districts and three agricultural high schools, which in 1995 served 503,301 elementary and secondary students.[13] It is difficult to approximate the number of private school students in the state because various sources provide different figures. The U.S. Department of Education estimates that in 1993, Mississippi had 221 private elementary and secondary schools that served 58,655 students.[14] More recently, the Mississippi Private School Association was estimated to have 90 member schools representing 36,000–37,000 students, and the state’s Catholic schools, which do not belong to the association, were calculated to represent an additional 10,000 students.[15] Overall, the Mississippi Council of Chief State School Officers estimates that 88.7 percent of Mississippi’s school-age children are in public schools compared with the national average of 90 percent.[16]

Quality of Education

Testimony at the Mississippi Delta hearing brought forth a harsh indictment of the Mississippi public school system. Roger Malkin, chairman of the Delta and Pine Land Company in Scott, Mississippi, testified that his company, during the hiring process, has found that many young people applying for work with a high school diploma are “functionally illiterate.”[17] Mr. Malkin testified, “I think it’s a tragedy, and I’m here as a U.S. citizen, a Mississippi citizen, and I think that public education in the United States is appalling, and we have to do something about it.”[18]

As in many high poverty areas, many Mississippi public schools are characterized by dilapidated buildings and insufficient resources. In June 1995, the State Department of Education visited, unannounced, the Quitman County schools and found filthy buildings, truant students, and “depressing and appalling conditions.”[19] Clearly, the physical conditions of a school setting—including lighting, air and ventilation, classroom space, and outside distractions—can play a role in the educational process.[20] Many schools in the Delta were built in the 1940s and 1950s and have not been properly maintained.[21] Furthermore, it has been estimated that 30 percent of all Delta schools need additional classroom space to accommodate students adequately.[22]

Mississippi uses a performance-based accreditation system to evaluate its school districts. The accreditation levels are from level 1, which is probation, to level 5, which is excellent. A level 3 is considered successful. For 1995, only one school district received a 5, and 19 school districts were ranked at level 4. The majority of school districts, 90 in total, fell into the 3–3.9 range. Twenty-four schools received a performance index between 2 and 2.9, and 19 received a performance index between 1 and 1.9.[23] Of those 19 low-scoring districts, 10 were located in the Delta or its periphery.[24] The student performance in Tunica County, for example, has been so poor that the district has been under state oversight since March 1997.[25]

Generally, the literature on whether student performance is correlated with spending has been contradictory.[26] Tables 2.1 and 2.2 show that the average total per pupil expenditure for the top 10 performing school districts is $3,963 and for the bottom 10 districts, the figure is $4,509. Thus, on average, the lowest ranking districts spend more money per pupil than the top performing districts.

Unlike other states, Mississippi has not experienced an eruption of equity funding lawsuits. This may be attributable in part to the State Legislature implementing, over the governor’s veto, the Mississippi Adequate Education Program. This program seeks to ensure that every school district will receive “sufficient” funds to provide an adequate education. The state will provide an increase of at least 8 percent for education services in every district. The program, implemented in 1998, will continue to be phased in over a six-year period, and will target an additional $130 million annually to education needs throughout the state.[27]

Another factor affecting student achievement is the efficiency of the school district administration, including superintendents. Mississippi has 65 counties that elect, rather than appoint, their school superintendents. This is more than any other state.[28] While many of the top performing districts have appointed superintendents, and while many of the worst performing districts have elected superintendents,[29] testimony at the Mississippi Delta hearing suggested that data on this matter are inconclusive.[30]

Testimony at the hearing suggested that allowing appointment rather than election of superintendents would “infuse and in fact give the district the ability to go outside the county lines to attract an effective leader.”[31] Dr. Ron Love, deputy superintendent, State Department of Education, testified that the most significant drawbacks of electing the school superintendent is that “the talent pool that you’ve got to select from has got to live right there next door to you, and be affected by all the local politics in that community. So it can be very difficult for them to get some new blood into the community. . . .”[32]

But according to Dr. Hattie Nalls of the Adolescent Family Life Institute, Inc., both elected and appointed officials are subject to the same political influences.[33] Although she said the community has a larger voice in the election of local officials, “even in that, a lot of manipulation goes on,” with some ministers, for example, encouraging their parishioners to vote for a particular person.[34] And her criticism of appointed officials was similarly harsh because, based on Dr. Nalls’ observations, many appointed positions are decided “before it gets into the chamber.”[35]

Testimony at the hearing suggested that only a small minority of the 15,000 school districts around the nation have kept the position of superintendent as an elected one. And yet nearly half of Mississippi’s school districts—63 out of 149—have kept the position elected rather than appointed.[36]

Top Ten Performing Mississippi School Districts

School district

Performance index

Total per pupil expenditure

State and local revenue

Federal revenue

Rank in spending

State average


$4,211 85.4% 14.6% N/A
Pontotoc City 5.0 3,629 89.4 10.6 144
Booneville 4.9 4,066 89.3 10.7 92
Corinth 4.9  4,400


13.2 59
Clinton 4.9  3,644 93.0 7.0 141
Ocean Springs 4.9 3,704


6.5 137
Petal 4.7 4,188 90.8 9.2 74
Long Beach 4.7  4,079 91.9 8.1 87
Lamar County 4.7 3,485 91.4 8.6 151
Tupelo 4.7 4,664 92.2 7.8 28
Pontotoc County 4.7 3,775 89.4 10.6 134
Top average N/A 3,963 90.8 9.2 N/A

Note: Total per pupil expenditure is calculated by using the total current expenditures from all sources of revenue divided by the nine months’ average daily attendance. Rank in spending from 1 to 153, with 1 representing the largest in per-pupil expenditure.
State of Mississippi, Department of Education, Office of Accountability Reporting, Mississippi Report Card ‘95.

Bottom Ten Performing Mississippi School Districts

School district

Performance index

Total  per pupil expenditure

State and local revenue

Federal revenue

Rank in spending

State average N/A $4,211 85.4% 14.6% N/A
Oktibbeha 1.0 4,872 80.7 19.3 18
Coahama 1.1 4,527 75.1 24.9 41
Noxubee 1.3 4,073 75.8 24.2 88
Clay County 1.4  5,071


19.4 7
North Panola 1.5 4,866 76.5 23.5 19
Drew 1.5 4,354 78.8 21.2 62
Holmes 1.5  4,070 73.3 26.7 89
Tunica 1.6  4,962 77.3 22.7 10
W. Tallahatchie 1.6 4,263 73.1 26.9 147
W. Bolivar 1.7 4,036 74.8 25.2 65
Bottom average N/A 4,509 76.6 24.4 N/A

Note: Total per pupil expenditure is calculated by using the total current expenditures from all sources of revenues divided by the nine months’ average daily attendance. Rank in spending from 1 to 153, with 1 representing the largest in per-pupil expenditure.
Source: State of Mississippi, Department of Education, Office of Accountability Reporting, Mississippi Report Card ‘95.

It was reported at the hearing that while there have been proposals before the State Legislature nearly every year to mandate the appointment of school superintendents instead of election, the proposals “just don’t quite make it.”[37] The state is currently focusing on improving the skills of its local school administrators whether elected or appointed.[38]

Several educators and community leaders suggested that the educational process must take place in the home as well as in the schools. Municipal judge and attorney Clell Ward stated in his interview with Commission staff:

We can’t solve the problem through the school system. Parents need to have an understanding as to the importance of education first, and that might entail some sort of program to train parents in conjunction with a program to reduce teenage pregnancy. We need to train parents how to be parents and instill values.[39]

Similarly, Dr. Martha Cheney, project coordinator for the Mississippi Public Education Forum, a private foundation funded by the state’s business community, believes that there must be a stronger focus on the “basics,” which includes parents talking to their young children in the home during their preschool years.[40]

Funding, Resources, and Equal Opportunity

Title I of the Elementary and Secondary Education Act

The Elementary and Secondary Education Act,[41] enacted in 1965, established several programs that provided federal funds to local school districts. Title I of the act created a program specifically designed to improve educational opportunities for educationally deprived children. Funding levels are calculated based on the number of low-income children in the school district. The Title I program supplements local school efforts to improve the basic and advanced skills of students at risk of school failure.

Title I funds reach approximately 14,000 school districts and serve more than six million children annually. Since Title I’s enactment, Congress has appropriated almost $97 billion to local school districts.[42] In 1995, Mississippi received almost $122 million in Title I funds, which were distributed to 719 schools serving 246,524 schoolchildren. Approximately 75 percent of the funds were used for classroom instruction.[43] In 1996, disbursements to Mississippi increased to $126.4 million.[44]

A 1993 U.S. Department of Education study of Title I found that recipients of services under the program in schools where at least three quarters of the children were poor scored substantially lower in math and reading than recipients attending schools where fewer than half were poor.[45] Many of the Delta school districts that continue to perform poorly rely heavily on federal funds.[46] For many school districts, receipt of Title I funds drive their per-pupil expenditures above the state average.

There appears to be disagreement among education leaders as to the costs and benefits associated with accepting Title I funds. Dr. Margaret Cheney, project coordinator of the Mississippi Public Education Forum, argues that residents of the Delta see the federal government as a “sugar daddy” because of the substantial federal assistance received under Title I and from the National Science Foundation.[47]

But Dr. James Hemphill and Dr. Ron Love, both special assistants to the state superintendent, point to the benefits of federal funding. Dr. Hemphill testified at the Mississippi Delta hearing that Title I funding “absolutely” plays a role in raising student achievement levels in poverty areas.[48] He believes that, without it, Mississippi public schools would be in “desperate shape.”[49] Dr. Love arrived at the same conclusion.[50] The single criticism with how the money is spent in the state of Mississippi was put forth by Dr. Hemphill, who testified that the funds should be focused earlier in a child’s education.[51]

Mississippi Teachers

In 1994, the U.S. Department of Education released a report finding that public school teacher salaries in rural settings are several thousand dollars lower on average than in metropolitan areas.[52] For the 1993–1994 academic year, the average annual salary for teachers nationwide was $36,846.[53] For the same year, Mississippi had the lowest average salary for public school teachers, $25,715.[54] These numbers have increased only slightly: in 1998 the national average was $37,560, and the average in Mississippi was $27,720.[55] Moreover, Mississippi’s entry-level salary for teachers ranked near the bottom at $18,833.[56]

In 1997, the State Legislature approved a three-year initiative to raise teacher salaries 10 percent, but even these raises are not expected to make Mississippi’s average teacher salary competitive with those in other states.[57] The State Department of Education maintains that while increased teacher pay was the primary legislative goal to address these concerns, there are other efforts underway to address teacher pay in a systematic way, which is essential in recruiting and retaining teachers.[58]

On May 1, 2000, Mississippi Governor Ronnie Musgrove signed a bill into law that gives teachers a 30 percent pay raise to be phased in over the next six years.[59] But teachers are disappointed because of a provision in the new law that requires the state revenue to increase by 5 percent before the raises are given.[60] And although Governor Musgrove has promised to ask the Legislature next year to remove the revenue requirement, Maryann Graczyk, president of the Mississippi American Federation of Teachers, said, “A lot of teachers do not have faith in the Legislature because of past broken promises. Some look at [the raise package] as another set of broken promises.”[61]

Testimony at the Mississippi Delta hearing suggested that if all the graduates of Mississippi’s 15 public and private education schools stayed to teach in Mississippi public schools (currently less than two-thirds of the graduates remain in-state), it still would not be enough to fill the void left by the teachers who are beginning to retire.[62] Current stopgap measures include the use of approximately 1,500 teachers who have been awarded emergency teaching certificates, as well as a large number of “long-term substitutes.”[63]

The current shortage of minority teachers is particularly acute. Minority students only account for about one-tenth of the students in teacher education courses in Mississippi.[64] Moreover, many African American education students, especially those toward the top of the class, are recruited, with higher pay and better benefits packages, to work at schools outside Mississippi.[65]

Dr. Andrew Mullins, former special assistant to the state superintendent of schools, notes that he has seen a precipitous drop in the number of minority teachers obtaining certification. Moreover, testimony delivered in the Mississippi Delta hearing emphasized that many of the poorest school districts, with the highest concentrations of minority students, are also the ones grappling with the most severe teacher shortages:[66]

There is a severe shortage of teachers in [the Mississippi Delta]. In many cases there is a warm body or no body to instruct the children. We have seen a recent precipitous decline in the number of minority teachers and the number of minority teachers statewide applying for certification. The number of black applicants continues to decline. It is difficult to attract white teachers to all-black districts in many cases. These factors, coupled with experienced teachers retiring earlier, teachers leaving the profession due to classroom discipline problems, inadequate administrators and little or no parental support, create a real and worsening crisis for many of our Delta schools.[67]

Finally, the hearing testimony indicated that despite the fact that schools with high percentages of black students see the need for African American teacher role models,[68] meeting that objective is becoming increasingly difficult in low-income areas such as the Delta. Dr. Love testified, “You can [have] a district that’s 97 percent black and at least 50 percent or more faculty will be white.”[69]

Mississippi Teaching Corps

Dr. Mullins, former special assistant to the state superintendent of schools, testified at the Mississippi Delta hearing about the Mississippi Teaching Corps, which offers structured entry into the teaching profession for liberal arts graduates from all over the country who have strong backgrounds in math, natural sciences, or foreign languages. The program, which requires a two-year commitment, combines full-time teaching with working toward a master’s degree in education. The degree program, financed by the state, includes summer study with a small stipend.[70]

In the summer prior to the first academic year, the teachers are required to enter into a certification process at the University of Mississippi at Oxford. Afterwards, the recruits are assigned to the most impoverished schools, which are primarily in the Delta. On the weekends, they return to the university to work on their master’s degrees. Approximately 25 students enroll each year. In 1997, the class of 22 Teaching Corps students included two African American teachers.[71]

Members of the Mississippi Teaching Corps are required to teach for a minimum of two years. Of the 25 teachers who were beginning their second year in 1997, five said they would be staying to teach for a third year. However, testimony at the hearing suggested that many Corps teachers “leave pretty discouraged by the situation that they find themselves in.”[72]

Mississippi Critical Teacher Shortage Act of 1998

The state is now aware of the critical need for teachers, and it has funded several creative programs to help address the problem. These programs include the following:

While these programs are a good start, more needs to be done if the teacher shortage problem is going to be resolved.

The Public Education Forum of Mississippi convened a task force in 1998 to examine factors contributing to public school educators leaving the profession.[77] The task force determined that the three highest factors, in descending order, were “inadequate salary,” “discipline problems,” and “better job opportunities.”[78] During the hearing, the following were suggested as possible reasons why teachers are leaving the profession:

Desegregation of the Public Schools

Mississippi has had a history of denying equal educational opportunities to its minority children. For the first 50 odd years of this century, Mississippi’s system of public education was one of “separate and unequal” for blacks.[86] In 1916, the per capita expenditure for each white child of school age in Mississippi was $10.60, and for each black child, $2.26. In 1939, for every $9.88 spent for white instruction, $1 was spent on blacks. The 1943 ratios were $8.27 to $1.75 for whites and blacks, respectively.[87] In anticipation of Brown v. Board of Education,[88] and hoping to weaken the case against segregation, the state enacted legislation calling for equal resources for both black and white children and attempted to promote a public education system that was “separate but equal.”[89]

Erle Johnston, former state director of the controversial Mississippi State Sovereignty Commission (1963–1968), writes that no state fought harder than Mississippi after Brown to thwart integration and discourage blacks from enrolling in all-white public schools.[90] Only after the U.S. Supreme Court’s rulings in two other important school desegregation cases, Green v. County School Board of New Kent County[91] and in Alexander v. Holmes[92]—a full 15 years after Brown—did Mississippi seriously begin the process of integrating its public school system.

By that point, white flight may have rendered school integration plans largely ineffective. There was significant white flight to private schools in the 1960s and 1970s, and to predominantly white suburban communities in the 1980s and 1990s. Indeed, white flight now has left Mississippi public schools not much more racially diverse than they were before desegregation began.[93]

A dramatic rise in private all-white schools in Mississippi occurred in the late 1960s. In the 1963–1964 school year, there were only 17 private schools, enrolling 2,362 students (916 of whom were black). By September 1970, there were 155 private non-Catholic schools, with an estimated student population of 42,000.[94] In the Jackson school district, 9,000 of its 39,000 students left the public school system from September 1969 to September 1971.[95]

A white journalist who was a first grader in Leland, Mississippi, a small Delta town that began its first year of integration in 1971, wrote:

After the Court’s ruling, a flood of hysterical white Mississippi families fled to newly created segregationist academies-schools with Confederate-colonel mascots and rebel flag logos. . . . For white Mississippians who considered themselves enlightened, the idea of sending their children to all-white private schools twenty-five years ago was taboo . . . But today, those crude segregationist trappings have largely fallen away. . . . Today, many of the children of the early white graduates of Leland’s integrated public schools are attending private academies.[96]

As one black state legislator explained it: “We just all quietly go about our own way. Folks from the academy ask me from time to time if I can help them find any good black children . . . I say ‘What for?’ ”[97] This same sentiment was expressed in an interview shortly before the Mississippi Delta hearing by Robert Davis, a professor of law at the University of Mississippi, who was an expert witness at the hearing:

When it comes to interacting socially, the atmosphere in Mississippi is different from other parts of the country. The different races are not comfortable with each other—separation seems to be promoted in different ways, including in professional groups, in social groups, in churches, etc. You basically have two societies that go about their lives and only get together when they have to. People don’t seem to want bridges built.[98]

Of course, there was also testimony at the hearing to suggest that important social interaction is starting to take place among the races. According to Dr. William Sutton, president of historically black Mississippi Valley State University:

I can see some changes . . . in the communities and the rotary clubs and on bank boards and also in the chambers of commerce that we are beginning to participate a bit more, and that will help, but we have a long ways to go.[99]

In March 1998, members of President Clinton’s Advisory Board on Race gathered at the University of Mississippi for a forum dedicated to gauging the community’s progress on race. One newspaper reported that “the old South and the new one clashed”:

A black student and a white student from Oxford High School declared their friendship with a heartfelt hug, but also pointed out that black and white students segregated themselves at lunch. Black speakers complained about the lack of a black doctor in town, adding that a non-white physician would have trouble attracting white patients. When a white man in the audience stood to proclaim that it was his “freedom” to wave the Confederate flag at Ole Miss football games, a white student responded by saying that most students would appreciate it if he did not.[100]

Some observers maintain that for both blacks and whites there is social pressure not to send their children to schools where they will be in the minority.[101] Moreover, testimony at the Mississippi Delta hearing points out that as private schools flourish in a given community, support for the public schools can wane. Dr. Love, special assistant to the state superintendent, stated:

I think the most dramatic impact the private schools [have] on public schools ha[s] to do with divided loyalties and community support for your public schools. I’ve worked in districts where there was very little private schooling, like Tupelo, and we enjoyed a great deal of communitywide [support] from local businesses and others. I think in the Delta on the other hand . . . you may have divided loyalties. . . . And that I think is the most crucial factor in terms of development of academies versus some other things. That’s where the impact tends to be most negative.[102]

Robert Buck, counsel for the Greenville Public School District Board of Trustees, testified that he, too, believes private academies can drain away support from the public school system, especially due to the economic burden placed upon parents who send their children to private schools:

If you have persons who pull their children out of a school system into a separate school system, as a result of the desegregation of public schools that took place in the ‘60s and the ‘70s, you have those persons now having to devote their resources to support the private academies, and at the same time pay ad valorem taxes to support the public school system. I think it almost necessarily follows that those persons whose resources are now being stretched are going to be opposed to anything that would mean an increase in tax rates . . . It certainly is my impression, based on my observation and also the impression of many people that I talk to that in fact there has been an adverse effect upon support for public education as a result of the proliferation of private academies.[103]

The problems surrounding the increase of predominately white private academies have plagued one small community in Tunica County for several years. Most residents of Tunica County are black, poor, and poorly educated.[104] In Robinsonville, a small unincorporated area in Tunica County, local officials are planning to build an $8 million state-of-the-art elementary school for students in the area. At first glance, the proposed plan would appear to directly benefit the residents of Robinsonville. But in the area immediately surrounding the property where the school is to be built, an upscale residential development is also scheduled to be built.[105] This development will undoubtedly attract higher income white families. As a result, area residents have organized with state and local officials to oppose the school, which many view as another plan to perpetuate the pattern of segregation that exists across the region.[106]

Because Tunica County schools are operating under a 1970 mandatory desegregation order, the school board has to get approval from the Department of Justice before it can build a new school.[107] To date, the Justice Department has refused to approve the plan, noting the likelihood that the new school would be populated by the predominately white residents of the surrounding residential development, and recommended other sites for the proposed plan that had a higher percentage of black students.[108] Even if the Justice Department and the school board reach an agreement, the plan must then be approved by a federal judge.[109]

Some observers consider Brown v. Board of Education the “moral pinnacle” in the struggle for equality of opportunity between whites and African Americans.[110] Others view public school desegregation as destructive to black identity and destructive to black control of the educational process for their children.[111] Whatever one’s view, it is clear that efforts to desegregate public schools in the Delta have largely failed. Dr. Arthur G. Cosby, a sociologist at Mississippi State University, suggests that the failure of the Mississippi school system to achieve integration has had a negative impact on education overall. He argues that while it appears that there are substantial resources being spent on education, these resources are greatly fragmented, resulting in a wasteful duplication of effort, a failure to achieve economies of scale, and suboptimal results from the resources that are spent.[112]

The Link between Community Leadership, Successful Schools, and Integration

Dr. Hemphill testified that community leadership is absolutely paramount to successful schools:

We see many times that the most important reason students are not achieving is leadership, not necessarily funding, but leadership, and not necessarily educational leadership, but leadership in the communities. You have a community that expects a school district to provide a superior product, you’ll have a good school district. If you have a community that doesn’t expect that, then they probably will not do it.[113]

Roger Malkin, chairman of the Delta and Pine Land Company in Scott, Mississippi, testified that he thought part of the problem with public education—at least in the city of Greenville—was that the all-black school board “is in favor of mediocrity, they’re not particularly in favor of excellence.”[114] Mr. Malkin argued that there was a “leadership problem” in the black community, and he expressed discouragement over his belief that “the blacks who have made it, and there are a lot of . . . financially successful blacks in Greenville, they never show up at public school meetings.”[115] Furthermore, testified Mr. Malkin, commitments to desegregation and integration would not take place until the public schools improved:

What we must do everywhere in the United States is we’ve got to improve public education so it is a bargain. People don’t think they’re getting their money’s worth any more, white and black, and I think the critical thing is to improve education in the public sector and they will come. Build it and they will come.[116]

But according to Dr. Mullins, schools in the region have always been lacking.[117] He explained in a recent Mississippi news article, “You had an all white Legislature, with only one or two blacks as late as 1968. There wasn’t much interest in improving the schools.”[118] In describing one of the reasons that black schools were systematically neglected and underfunded, Dr. Mullins said, “You didn’t want to educate a good field worker because they’d leave the field.”[119]

In Mississippi, it is estimated that there are approximately 500,000 students in the public school system (K–12), and approximately 50,000 in nonpublic schools (including approximately 35,000 in private academies, 10,000 in parochial schools, and 2,000 students in Episcopal schools).[120] It is estimated that approximately 50 percent of the public school students are black,[121] that approximately 25 to 30 percent of the parochial students are black,[122] and that less than 2 percent of the private academy students are black.[123]

But these numbers fail to illustrate the point that schools in some parts of the state are much more segregated and homogeneous than in others. In the Delta, many of the school districts are 95, 96, and 97 percent black.[124] Dr. Love testified at the Mississippi Delta hearing, “If you spent most of your life in the Delta, you [would] think every public school in the state was all black.”[125] Dr. Mullins concluded that in the Delta, “[a]ll the whites went to private schools.”[126]

Resegregation of the Public Schools

The resegregation of children in America’s schools has increased progressively since the 1980s. According to Harvard University education professor Gary Orfield, segregation of blacks in the South declined dramatically from the mid-1960s through the early 1970s, was stable until 1988, and has been rising since that time.[127] Orfield reports that in 1991–1992, 36.6 percent of black Mississippi students were in schools with 90–100 percent minority populations.[128]

The typical white student in a Mississippi public school attended a school with an average population of 31.5 percent black students.[129] In total, blacks make up 51 percent of the total public school population in Mississippi. Of the public school districts, 67 are 60 percent or more black and 56 are 60 percent or more white. Only 30 school districts are close to being racially balanced with a white/black ratio of 40 percent white to 60 percent black.[130]

Percentage of Black and White Children in Mississippi Delta  and Peripheral Delta Public Schools

                              District population

                              School population

School district   % white % black % white % black
West Bolivar   23.9 75.6 5.1 94.1
North Bolivar 18.7  80.5 1.9 98.6
Coahoma County    30.0 69.2 2.7 96.0
Holmes County   21.9 77.9 0 .1 99.9
Humphreys   31.8 68.1 3.3 96.6
Leflore   34.8 64.9 4.7 95.2
Quitman County   40.5 58.5 4.2 95.7
Sunflower   32.3 67.1 2.6 97.4
Clarksdale Separate 37.6 62.1 21.2 78.2
Cleveland County   49.7 49.3 27.5 71.6
Indianola   34.7 64.6 6.5 93.3
East Tallahatchie   51.0 48.8 33.3 66.7
West Tallahatchie 27.9 71.4 6.3 99.7
Tunica   24.4 75.4 1.4 98.6
Greenville Public 36.0 63.4 7.5 92.3
Western Line 67.0 32.1 44.1 54.9
Yazoo County   59.7 40.0 30.6 69.3
Yazoo City Municipal   35.2 64.4 13.8 86.1
South Delta   36.3 63.4 6.2 93.8
Drew 41.3 58.4 16.7 83.3
Shaw   32.7 67.3 5.1 94.8
Benoit   31.5 68.5 1.53 96.6
Mound Bayou   0.8 99.2 0.2 99.8

Note:  Numbers may not add up to 100%, reflecting other races.  
Source: State of Mississippi, Department of Education, Office of Accountability Reporting, Mississippi Report Card ‘95.  

In some parts of the state where private schools were created in direct response to the desegregation orders, whites have returned to the public schools. This is not the case in the Delta, however, where the vast majority of white children attend private or religious schools and black children attend schools that are overwhelmingly black public schools.[131] For example, in Holmes County, while the district population is 21.9 percent white, the public school K–12 enrollment is only 0.1 percent white. As table 2.3 indicates, these figures are representative of all school districts in the Delta.

Testimony at the Mississippi Delta hearing suggested that it is unrealistic to imagine that the private academies would ever be closed, leading to an integration of the public and private school systems.[132] Dr. Mullins remarked:

I don’t think that you can do that. I think that [it is] unrealistic to think of doing that. I think it’s a waste of energy to even try to attempt to do that. The way you address that problem is to make your public schools as good as you can make them . . . These are private entities and you start trying to interfere in their business, I think you’ll see a backlash that will hurt throughout the communities.[133]

Dr. Love concurred with this testimony, adding that if the predominantly black public schools improve, it might sway some white students to attend. However, Dr. Love cautioned that the integration would likely be modest—say, moving a school from 97 percent black to 90 percent black.[134]


Some argue that even when a school is numerically “integrated” with both black and white students attending the same school, resegregation can occur inside the schoolhouse walls if students are “tracked” into different levels of courses.

Testimony at the Mississippi Delta hearing regarding tracking was contradictory. Dr. Hemphill testified that while tracking was a tool used early in the desegregation process, “I don’t think it happens much any more.”[135] According to Dr. Hemphill, there is an accreditation system—or a performance-based system that emanated from the 1982 Education Reform Act—which was to improve the quality of educational programs and ensure equal access to a quality education for all students:

We have people in every district evaluating the testing procedures, and we the superintendent and the State Board of Education—are extremely serious, and so anything like tracking or those kinds of things that might have once been out there, might not be the best educative program, districts are quickly moving away from that.[136]

However, Rims Barber, director of the Mississippi Human Services Agenda, testified that he was “surprised to hear” anyone say that tracking has been phased out, saying, “We call them blue birds and red birds and buzzards, right, but if you’re in the buzzard class, you know where you belong, right?”[137]

Mr. Barber also testified that the closely related phenomenon of “ability grouping,” or using a test to divide the students into different groups based on academic ability, occurs in “many” school districts throughout the state. According to Mr. Barber, “[i]t may not even be policy any more. It may be just the way the principal in that school works. . . . [T]here is a fair amount of grouping and the lower groups tend to get trapped in it, tend to be the kids who get referred to special education in about the fourth grade.”[138]

Special Education

There was testimony at the Mississippi Delta hearing that an agreement had been signed between the state of Mississippi and the Office for Civil Rights (OCR), within the U.S. Department of Education, to address the problem of overrepresentation of minority students in special education classes.[139] After investigating five school districts throughout the state, OCR found “significant statistical disparities in the percentage of African American students being placed in special education.”[140] Rims Barber, director of the Mississippi Human Services Agenda, testified that while the OCR agreement represented “progress,”

the general culture is that certain kids get pushed into the slow reading class and then into the special education class, at a certain age begin getting suspended, and then expelled or put into an alternative school.[141]

During the hearing, Robert Buck, counsel for the Greenville Public School District Board of Trustees, also testified that there was “certainly . . . a problem with too many students being placed in special education.”[142] He said the problem had been acknowledged by the Mississippi Board of Education and that there was an “effort” to deal with the problem:

The fact is a lot of students are placed in special education because of cultural problems, environmental problems, as opposed to learning—the ability to learn . . . a distinction needs to be made when a child scores low on a test, whether the child is scoring low because of a cultural background, environmental problems as opposed to the inability to learn.[143]

Alternative Schools

Approximately one-fourth of 1 percent of the state’s public school students are in alternative programs.[144] However, these students are concentrated in certain grades and geographic areas. There was testimony at the hearing to indicate that some geographic areas had 10 times the normal rate of placements,[145] and that placements to the programs tended to be “black male middle school students who are over age for their grade . . . having flunked once or twice.”[146] Rims Barber testified that there were racial and ethnic “tensions” that resulted from this disparity, “particularly parents who feel like the system is not treating my boy fairly.”[147] There was testimony at the hearing that about half of the students placed into alternative schools are black. Dr. Love, special assistant to the state superintendent, commented:

I would say 75 to 80 percent of those who are in poverty are black. Those who come from broken homes and in some of the worst situations are black, and therefore, I think it’s reasonable to assume those who get placed in alternative programs in larger numbers are going to be black.[148]

Rims Barber testified that while he did not have definite statistics, the alternative schools that he observed were “overwhelmingly black.”[149] And according to Judith Browne, a senior attorney with the Advancement Project, a student’s race may be a factor that influences a disciplinary decision:

In school districts across the country, African-American and Latino children are constantly being suspended for the more discretionary offenses, such as “defiance of authority” and “disrespect of authority.” These categories of conduct clearly provide more latitude for racial bias to play a part in the use of disciplinary measures.[150]

Historically, discipline problems in K–12 were dealt with by suspending or expelling troubled students.[151] To address these discipline problems, the State Legislature’s juvenile justice committee—not the education committee—spearheaded the effort to create alternative schools for these students.[152]

As a result, Mississippi’s school disciplinary actions have become increasingly harsh. Ms. Browne criticized the new “zero tolerance” measures because they “often fail to meet sound educational principles and, in many cases, their application simply defies common sense.”[153] Ms. Browne added, “In many instances these policies are being unfairly used against African-American and Latino children and children with special needs.”[154] Indeed, the quality of education that students receive at these alternative schools leaves much to be desired. According to the Advancement Project, “[s]tudents at a Mississippi alternative school meet their bus in front of the local police department, where they are disciplined by police officers, if necessary . . . Teachers merely act as monitors. They provide worksheets and grade them but do not explain the work.”[155] Thus, there is no evidence that students will benefit from the structure or substance of alternative school programs.

In addition, the Advancement Project noted, “The increase of criminal charges filed against children for in-school behavior has been one of the most detrimental effects of Zero Tolerance Policies.”[156] In a recent case, five black teenagers were arrested and charged with felony assault for throwing peanuts and pickles while on a school bus, after one of the peanuts accidentally hit the school bus driver.[157] Such a charge carries up to a $1,000 fine and five years in prison.[158] The students were suspended from school and had their school bus privileges revoked.[159] After an attorney intervened on the students’ behalf, the criminal charges were dropped, but the students later dropped out of school due to a lack of transportation to their school, which was 30 miles from their homes.[160] In another case, an 8-year-old in Mississippi was suspended in October 1999 for kicking his teacher.[161] The child was not permitted to return to school for the entire year, and he was too young to be sent to an alternative school.[162] According to Ms. Browne, these stories “exemplif[y] the extremely harsh disciplinary approach that has taken over in many school systems, and the increasing invocation of the criminal justice system for minor school behavioral issues.”[163]

Mr. Barber conducted a survey of the alternative schools and concluded that “many of the programs are not quality.”[164] She reported that one superintendent told his surveying team, “I wouldn’t put one of my good teachers over there with those kids.”[165]

Mr. Barber also testified that alternative schools were being used as a “dumping ground,” and the three principal cities that serve as migratory points for rural people in the area—including Greenville, Vicksburg, and Natchez—have the highest suspension rates in the state, nearly three times the state average.[166] He also testified that it is extremely difficult to get “good baseline data” that would enable him to determine how effective the alternative schools were at reducing student suspensions and expulsions.[167]

Moore v. Dupree

In June 1996, the U.S. Supreme Court considered the voting rights implications of the repeal of a law providing that school district borders be automatically extended when land is annexed by a municipality. In Moore v. Dupree,[168] the Court unanimously upheld a 1993 district court decision that a repeal of Miss. Code Ann. § 37-7-611 (1971), a part of Mississippi’s 1986 Uniform School Law, failed to comply with section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c (1974).

Prior to 1986, section 37-7-611 had provided for the automatic incorporation of the school districts of annexed land. In 1986, the State Legislature changed the law to permit municipal school districts to expand their boundaries only with the express consent of all school boards involved.[169]

The voting rights issue focused on the fact that annexed residents could decide not to be included in a city school district but would still be able to vote for city council members, who in turn appoint the school board members. Thus, the annexed residents could indirectly vote for school board members of a school district to which they decided not to belong.[170]

The Supreme Court agreed with the lower court’s finding that the state attorney general had failed to preclear the statute as required by Clark v. Roemer.[171] Clark held that a state must “identify each change as necessary if the Attorney General is to perform his preclearance duties under § 5.”[172]

Michael Moore, the Mississippi attorney general, filed an action in the U.S. District Court of the District of Columbia requesting a declaratory judgment that the repealer law was in fact precleared. In response, the Mississippi State Conference of the NAACP has adopted a resolution stating its objection to the attorney general’s proposed action.[173]

The Dupree case, which involved the city of Hattiesburg, is not the only example of this phenomenon. A companion to Dupree involves the Greenville municipality and its attempts to annex the Western Line School District.[174] In addition, Jackson County is considering annexing land in South Hinds County, which would effectively merge the Hinds County School District with that of Jackson.[175]

The legislative purpose in ending the automatic extension of school districts into annexed land is unclear. Some argue the legislative purpose is financial. When an urban district expands into counties and rural areas, the effect is that the urban district takes up the tax base of those outlying areas, making it more difficult for the outlying districts to operate and fund themselves.[176]

However, Robert Buck, counsel for the Greenville Public School District Board of Trustees, attributes the legislative purpose of the 1986 repeal to something else: racism. In a telephone interview shortly before the Mississippi Delta hearing, Mr. Buck stated:

The reason for the opposition to the expansion of school districts is racial in a sense that white parents in annexed areas do not want to send their children to the Greenville public school district. After desegregation, the Greenville school system has been more than 90 percent minority, although the population is about 55 percent black. . . . [W]e believe that the answer is that there was a trend all over the state wherein municipal school districts were becoming majority black and there were annexations taking place in larger areas, including Hattiesburg and Jackson. At the same time, there were people moving out of the municipalities and into the suburban areas in an attempt to escape the municipal public school systems. Those moves were being negated by virtue of the fact that the municipalities were expanding.[177]

And Mr. Buck reiterated this position at the Mississippi Delta hearing when he said the following about the motivation behind the 1986 repeal:

The underlying intent of the legislation was to make it difficult for districts such as Greenville and Jackson and Hattiesburg, where you have fairly large urban populations, and where unfortunately the public school districts are 90 percent black, 97 percent black, and whatever, to make it difficult for those districts . . . to then expand their lines out into the county . . . The motivation behind [the legislation was] at least in part an effort to curb or to control the expansion of what I would classify as urban, largely minority districts.[178]

Mr. Buck testified that a single unitary system of education would enhance the education of all the students.[179] Despite economies of scale or other economic advantages that would result from a unitary system of education,[180] the political reality appears to be continued migration of whites out of the urban areas[181] and continuing controversy over the 1986 repeal.[182]

In February 1997, the U.S. Supreme Court ruled, by a 7–2 vote, to allow the state of Mississippi to continue enforcing the 1986 repeal.[183] The U.S. Department of Justice subsequently precleared the repealer on May 7, 1998, and thus effectively settled the lawsuit.



Mississippi’s system of public four-year universities was segregated by race from its inception in 1848 until 1962, when the first black student was admitted to the University of Mississippi by court order.[184]

The racial identifiability of Mississippi’s eight public universities changed little during the decade following the landmark admission of James Meredith. The student composition of the University of Mississippi, Mississippi State University, Mississippi University for Women, University of Southern Mississippi, and Delta State University (collectively, “historically white institutions” or “HWIs”) remained almost entirely white, while that of Jackson State University, Mississippi Valley State University, and Alcorn State University (collectively, “historically black institutions” or “HBIs”) remained almost entirely black.[185]

Moreover, the racial identifiability of these institutions persists: in the fall of 1996, the on-campus undergraduate enrollment ranged between 75 and 85 percent white at each of the historically white institutions, and averaged nearly 98 percent black at each of the historically black institutions.[186]

In 1975, the parent of a Jackson State University student brought suit, claiming the state of Mississippi had, for decades, underfunded its historically black public universities. The plaintiff also argued that the state had not met the Brown v. Board of Education[187] mandate to dismantle segregated education with all deliberate speed.[188] The plaintiff argued Mississippi’s higher education system was in violation of the 5th, 9th, 13th, and 14th Amendments to the United States Constitution; 42 U.S.C. §§ 1981 and 1983; and Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-4a. The United States intervened as plaintiff and alleged violations of the equal protection clause of the 14th Amendment and Title VI.[189]

For 12 years the parties attempted to resolve their differences through a voluntary dismantling of the prior segregated system. Unable to achieve ultimate agreement, the parties proceeded to trial in 1987.

The respondents—the Board of Trustees of State Institutions of Higher Learning (the College Board)[190]—maintained that the state had met the Brown mandate by adopting race-neutral policies. The U.S. District Court for the Northern District of Mississippi[191] and the Fifth Circuit Court of Appeals[192] applied their interpretation of the standard established in Brown and concluded that the state had fulfilled its affirmative duty to dismantle the former de jure segregated system of higher education through its adoption and implementation of good-faith, race-neutral policies and procedures in student admissions and other areas.

The U.S. Supreme Court granted certiorari.[193] The Supreme Court vacated the judgment and remanded for further proceedings, holding that the mere adoption and implementation of race-neutral policies were insufficient to demonstrate complete abandonment of the racially dual system.[194] The Court stated:

Even after a State dismantles its segregative admissions policy, there may still be state action that is traceable to the State’s prior de jure segregation and that continues to foster segregation. . . . If policies traceable to the de jure system are still in force and have discriminatory effects, those policies too must be reformed to the extent practicable and consistent with sound educational practices.[195]

The application of the Brown principles to the context of higher education was confirmed: segregation and discriminatory policies that violate the equal protection clause of the 14th Amendment may still exist in higher education even after the removal of a de jure segregated system.[196]

Applying the new standard, the U.S. Supreme Court identified admissions standards, program duplication, institutional mission assignments, and continued operation of all eight public universities as a list of constitutionally suspect remnants of the prior de jure system,

for even though such policies may be race neutral on their face, they substantially restrict a person’s choice of which institution to enter, and they contribute to the racial identifiability of the eight public universities. Mississippi must justify these policies or eliminate them.[197]

On remand, the district court ordered each party to submit proposed remedies. Without conceding liability, the College Board responded by presenting a detailed proposal for modification of the higher education system.

Implementation of U.S. v. Fordice

In March 1995, U.S. District Court Judge Neal Biggers Jr. ruled that the state was perpetuating the vestiges of de jure segregation in the areas of undergraduate admissions, institutional mission assignments, funding, equipment availability, library allocations, program duplication, land grant programs, and number of universities.[198]

Judge Biggers ordered the state to spend more money to improve its historically black public universities. First, “diversity scholarships” would be funded to attract white students:[199]

Second, graduate programs would be added at Alcorn State and Jackson State:

All these programs have been approved by the College Board and have been funded.[202]

At historically black Mississippi Valley State University, Judge Biggers did not order the creation of new programs or endowments, but the state still decided to add graduate degree programs in the areas of elementary education and criminal justice.[203]

Many African American citizens of Mississippi heralded the Fordice decision as a major victory. Others, such as Dr. James D. Anderson, professor of education at the University of Illinois and author of the book The Education of Blacks in the South, 1860–1935,[204] compared the rulings in the case to “band-aids put on cancer.” Dr. Anderson argued that the evidence brought before the court to demonstrate the existence of discrimination and inequality was “as persuasive as you’ll ever get.”[205] According to Dr. Anderson, the people involved in rectifying the situation were able to look at 130 years of Jim Crow and its negative impact on higher education, then address that negative impact with a “token remedy,” and then “just move on.” Dr. Anderson believes that the various remedies put into place were like “grains of sand on a beach of what was needed to be done.”[206]

Dr. F. Kent Wyatt, president of historically white Delta State University, suggested that very few people embrace wholeheartedly the Fordice rulings.[207] Robert Davis, associate professor of law at the University of Mississippi School of Law and author of a law journal article titled “The Quest for Equal Education in Mississippi: The Implications of United States v. Fordice,”[208] said that dealing with the Fordice case and its aftermath “has been both a legal and a political process; it’s been impossible to reach a consensus on many of the issues involved, and many of the problems involved will probably never be fully resolved.”[209]

Scholarships Targeting White Students to Attend Historically Black Schools

The idea of targeting scholarships to whites to attract them to historically black colleges has generated controversy. Janell Byrd, a lawyer with the NAACP Legal Defense and Education Fund who specializes in higher education desegregation cases, said it was “bizarre and ironic” that the court favored race-conscious scholarship awards for whites and not for blacks, noting that the federal courts in a recent Maryland court case[210] have said that race-conscious scholarships for blacks to attend white state colleges amounted to unconstitutional reverse discrimination.[211] “At least [Fordice] seems to say that it is OK and constitutional to provide other-race and race-conscious scholarships, and that is an improvement over the Maryland ruling,” Ms. Byrd said. “But in the long run [the Fordice] ruling doesn’t seem to connect to the harm of lack of access for blacks to quality higher education that it was supposed to address.”[212]

Dr. Thomas Layzell, Mississippi commissioner of higher education, suggested that it might be quite some time—“more than a few years”—for the scholarships to cause any significant change toward integration, largely because it will take time for the historically black schools to add the professional programs and schools mandated by Judge Biggers. Moreover, even after these additions are made, it will take time for the schools to bolster their academic reputations to the extent required to attract white scholarship recipients.[213] Professor Davis suggested that a degree from a historically black institution currently has a “crippling effect” on the graduate as he or she enters the job market.[214]

Dr. James D. Anderson, professor of education at the University of Illinois, believes that scholarships are a good idea, but asks why they cannot also be used to attract minority students to historically white institutions. “Why should the burden for integration fall on historically black schools? Why can’t historically white schools offer the same incentives for African American students to attend the historically white institutions?” he asked.[215]

Howard University Law School professor Ken Tollett Sr. appears to agree with Dr. Anderson, saying the Fordice decision “gives no consideration to the enhancement of schools for blacks. It all has to do with attracting more whites to black schools. I haven’t seen anything about how to bring more black students in to white schools. The whole premise of the analysis is subtly white supremacist.”[216]

School Closings and Mergers

Judge Biggers stopped short of ordering the closing of Mississippi Valley State University (MVSU), whose enrollment is overwhelmingly black, and merging it with predominantly white Delta State University (DSU), as the state had proposed.[217] Moreover, the judge directed in his ruling that the Mississippi College Board undertake further study of “any available educationally sound alternatives” to the proposed consolidation of the two schools.[218] The resulting report, titled Transformation Through Collaboration: Desegregating Higher Education in the Mississippi Delta,[219] which was issued in March 1996, concludes that:

desegregated higher education in the Delta is not contingent upon consolidation of DSU and MVSU. Less drastic, more practicable and educationally sound alternatives are available. These alternatives can, over time, promote quality desegregated education—where choice of institutions and success in them is not dependent upon race. . . .[220]

There is clearly disagreement within the Mississippi educational community regarding closings and mergers of schools. On one hand, there is pressure to expand upon the current system by creating university “satellite centers” throughout the state. One such center is being developed in Greenville, Mississippi. Moreover, Dr. Layzell indicated that there is enormous pressure to expand such programming to the Mississippi Gulf Coast as well, as that is the fastest growing area in the state.[221] Dr. William Sutton, president of historically black Mississippi Valley State University, testified that such centers are being opened throughout the state to enable full-time working residents to also attend college.[222]

On the other hand, others argue that satellite centers are not necessary and that some of the eight public universities should be merged or consolidated. Robert Davis, professor of law at the University of Mississippi, argued against satellite centers because the state education system “should not be driven by a goal for economic support.”[223] He believes the state university system can be supportive of the economy by producing highly skilled workers for businesses that want to locate to the state, adding that he has talked to business leaders and companies that have decided against locating to Mississippi because of the poor quality of education available in the state.[224] Professor Davis wrote:

There is no reason for the State to attempt to continue the financing of eight universities. Mississippi currently funds fifteen two-year colleges and eight four-year colleges. Mississippi is the poorest state in the country and the least able to fund the schools that it supports. The State should work toward reducing the number of junior and senior colleges. This can be accomplished through merger, consolidation and closure.[225]

Professor Davis reported that at the law school where he teaches, the University of Mississippi, which draws students from all of the state’s public universities, the general quality of education and level of preparation are “mediocre at best.”[226] He suggested that the focus of the Fordice litigation has been on “preserving certain interests today” rather than the “quality of education 20 years from now.”[227] He believes that “radical changes” are necessary to improve the quality of Mississippi’s system of higher education, and says that the current course of action spurred by the court in Fordice will result in insignificant changes:

What I see happening 25 years from now is we will continue to tinker with improvements at a variety of institutions. We will tinker with attempting to get white students to attend Mississippi Valley State. . . . Or we will continue to tinker with improving Jackson State. . . . But the system remains and these choices that have been made historically by African American students and majority students, I don’t see how the tinkering that [Higher Education Commissioner Thomas Layzell] seems to be satisfied with will make any major adjustment to how our students exercise their choices, given the options.[228]

Professor Davis argued that if a “consolidation approach” is not given serious thought and study, the problem will continue to present itself as “we deal with ill-prepared students from our undergraduate institutions.”[229] Specifically, he envisions a “unitary, statewide system” where some of the current universities could be used as branch campuses, but where duplication, waste, and inefficiency can be eliminated.[230] According to Professor Davis, this waste includes “eight college presidents . . . and all the attend[ant] administrative costs that go along with that.”[231] Professor Davis argued that while such a move would be more costly initially, it would lead to cost savings in the long run.[232] Besides, he argued, even if consolidation did not yield a monetary savings, it should still be implemented in order to improve the quality of education and to bring about “the kind of quality . . . product that I think we all would be interested in seeing here.”[233]

The chairperson of the U.S. Commission on Civil Rights, Dr. Mary Frances Berry, asked whether it is possible that the state of Mississippi was attempting to support too many public universities, diluting the quality of the education being provided. Dr. Berry said:

How in the world does the state of Mississippi have enough money to keep eight first-rate institutions of higher education going, when most states can’t even keep one going? . . . I mean, are we seeing here simply a perpetuation of the inequities of the past and a sort of dumbing down of higher education in Mississippi to meet the requirements of what you can fund, and side stepping the whole issue of desegregation?[234]

Dr. Berry asked whether merging Delta State and Mississippi Valley State universities would result in the creation of a “first-rate institution” and asked whether it is “racial divide and politics” that are preventing such a merger.[235] Dr. Thomas Layzell, the commissioner of higher education, replied that, in America, politics always plays a role in higher education and that, besides, the consultants who looked at the issue of merging the two institutions determined that such a merger would be a poor choice from both an economic and educational standpoint.[236] Dr. Layzell said the issue of merger within the state of Mississippi “is dead, it’s over with . . . we’re moving on. We’ve got eight institutions.”[237]

Rather than concentrating on merging institutions, Dr. Layzell said, the College Board’s view is to “make each one of these eight institutions the best it can be at what it does.”[238] And this conclusion was reflected in a June 1998 order of the district court, following a status conference on the Fordice case. The order stated that “the court will no longer consider the merger of Mississippi Valley State University and Delta State University, since the Board has stated to the court that this merger is not now deemed practical by the Board.”[239]

Some have argued that school mergers and closings are more political than legal in nature, and therefore should be decided by the Legislature rather than the courts.[240] Mark Musick, president of the Southern Regional Education Board, an accrediting organization, said one thing that Judge Biggers’ ruling showed was that federal courts can be as reluctant as state legislatures and governors to close universities and colleges: there are 38 historically black, publicly financed universities or colleges in the 19 states that once had segregated higher education systems, and in the last two decades of desegregation efforts, none has been closed.[241]

Robert Kronley, the primary author of Transformation Through Collaboration: Desegregating Higher Education in the Mississippi Delta, in explaining why the study recommended against consolidating Delta State University (DSU) and Mississippi Valley State University (MVSU), painted a picture of schools with very different faculty and student populations:

Moreover, Mr. Kronley reported that he had reviewed testimony from the president of DSU “which essentially said that were the institutions consolidated, it would be very, very difficult for many of the students traditionally admitted to Valley to thrive and . . . graduate at [DSU].”[243] Finally, Mr. Kronley studied the financial consequences of combining the institutions and concluded that it would cost “significantly more money”[244] to consolidate than it would to invest in upgrading both institutions pursuant to the final recommendations of his report.[245]

While opposing outright consolidation, however, Mr. Kronley and his team of researchers do advocate something he calls a “Delta student.” Mr. Kronley defines such a student as one who “would enroll at any institution, whether it’s a community college or a four-year institution in the Delta, but she would be able to avail herself of whatever resources were present at any of them. So it would be almost a common market of courses of opportunity to students throughout the Delta. . . .”[246]

Increased Admissions Standards for Historically Black Schools

Judge Biggers’ decision imposes the same admissions standards for all of Mississippi’s institutions of higher education. The new standards evaluate students on a blend of high school grades, class rank, teacher evaluations, and scores on standardized American College Tests (ACT). For years, admission was almost solely tied to ACT scores, a minimum of 15 (the top score is 36) at historically black universities and 18 at the five historically white institutions. Differential admissions standards, according to the district court, “resulted in the ‘channeling effect’ described in Fordice,”[247] which helped to maintain a racially dual system.

Under Judge Biggers’ decision, high school graduates with at least a 3.2 GPA can gain automatic admission to any of Mississippi’s eight universities. Those with at least a 2.5 GPA must score 16 or higher on the ACT. Students with a 2.0 GPA must score 18 or higher on the ACT.

The new admissions standards were challenged, but the U.S. Supreme Court refused to block their enactment.[248] Critics argued that their impact would be dramatic: Fordice plaintiff attorney Alvin Chambliss Jr. predicted that the higher standards would cause freshmen enrollments to drop 50 percent at Jackson State, Mississippi Valley State, and Alcorn State universities in 1996–1997; he said the new standards would “put the black schools behind 50 years.”[249] Robert Kronley argued that the raised admissions standards put minority students at “great risk.”[250]

Proponents, on the other hand, saw the new standards as an effective and immediate means to rid the state of one of the vestiges of segregation—differential admissions requirements—identified by the Supreme Court, as well as an opportunity to align Mississippi’s universities with national and regional trends toward higher standards.

The new standards were implemented in the fall of 1996. It has been reported by the Southern Education Foundation that between fall 1995 and fall 1996, full-time black freshman enrollment at Mississippi’s public universities dropped by 463 students, and most of the decline was at the three historically black universities: the number of black freshmen dropped by 12 percent at Alcorn State, by 24 percent at Jackson State, and by 27 percent at Mississippi Valley State.[251] The foundation also reported, however, that this decline has been partially offset by increasing numbers of black freshmen enrolling at traditionally white institutions, as well as a 7.3 percent increase in the overall number of black students in the state’s university system.[252] In a June 1998 order of the district court, following a status conference on the Fordice case, the court ordered the university to monitor “the various elements that affect freshman enrollment and advise the court of its findings.”[253]

Dr. Elias Blake Jr., a consultant to the Fordice plaintiffs and director of the Washington, D.C.-based Benjamin E. Mays Center, said that what is needed is a way to “overturn this new legal doctrine that you can obey the mandates of Brown v. Board of Education for desegregation by increasing and perpetuating the historic denial of equal access to higher education and making opportunities for Black youth less equal.” According to Dr. Blake, formerly the president of Clark College, a black college in Atlanta, “If [Fordice] stands, [it] will be a new kind of Plessy v. Ferguson. In Plessy, Blacks got legalized segregation that increased inequality of opportunity. . . . [The Fordice] opinion allows desegregation in higher education to be made the enemy of equality and opportunity.”[254]

Others disagree with this assessment. For example, Dr. Leonard Haynes, a black college alumnus who serves as senior assistant to the president at American University in Washington, D.C., said he was confident that national education reform could equalize educational opportunities for students of color in K–12. “If the K–12 system improves itself, implementing uniform admissions standards in Mississippi’s universities won’t be a problem,” said Dr. Haynes, formerly the assistant secretary for postsecondary education during the Bush administration.[255] However, according to Robert Kronley, there are some real questions in the Mississippi Delta about whether public schools currently offer curriculum of sufficient quality to prepare students to meet the higher standards. More importantly, said Mr. Kronley, there is nothing in the current plan that calls for systematic cooperation between K–12 education and higher education to ensure that there will be a change in the current situation.[256]

Dr. F. Kent Wyatt, president of historically white Delta State University, said he did not see any reason to be concerned about the changes made with respect to admissions standards. He said the new standards are not stopping any “legitimate” student from obtaining a higher education, adding that any hard-working, sincere student in Mississippi is going to be able to obtain higher education, whether it be at a four-year university or a community college.[257]

Finally, Robert Davis, professor of law at the University of Mississippi School of Law, suggests that the admissions process should be made far more flexible than the reforms have made it. He argued that some students do not perform well on standardized tests such as the ACT and he suggested that “testing abuses” might occur which can reduce the scores of minority test takers. Professor Davis argued that “everyone” should be let into Mississippi’s eight public universities. He believes that if newly admitted students are not adequately prepared for the coursework at a four-year school, they will quickly fail out and can attend the community colleges.[258]

Summer Remedial Programs for First-Year College Students

Summer remedial programs in mathematics, reading comprehension, writing, and study skills have been implemented to help students who do not meet the new admissions requirements. Dr. Thomas Layzell, the commissioner of higher education, describes the nine-week programs as allowing “open admissions . . . to students who did not otherwise meet the uniform admissions requirement.”[259] Students who complete the program can then choose any one of the eight state universities to attend, under the condition that they participate in a yearlong “academic support program” during the first year of study.[260]

Dr. Layzell reported that during the summer of 1996, approximately 210 students participated in the program, with nearly 200 students completing it successfully.[261] He said that while the vast majority of the students attended summer remedial programs at historically black institutions[262] and then proceeded to enroll in those same institutions, a “fair number” of the students enrolled in historically white institutions.[263]

The Southern Education Foundation reports that the number of students participating in the 1997 summer remedial program increased to 303 students, of whom 273 completed the program. Blacks accounted for 95 percent of the students in the program. Three-quarters of the students in the summer program—229 of them—were enrolled at one of the three historically black institutions. Of the 287 black students who began the program, 208 (72.5 percent) ultimately enrolled in the fall of 1997. All 15 of the white students who participated in the program enrolled in the fall of 1997.[264]

Since the summer program is so new, information is not yet available regarding the graduation success rates for the students admitted through the program. However, Dr. Layzell reported that data suggested that “they were doing fairly well in the fall term [of the 1996–1997 school year].”[265]

The programs last nine weeks, and only those students who complete a program successfully will be admitted to a university.[266] Dr. Roy Hudson, vice president for administration at historically black Mississippi Valley State University, said that if the new standards had been in place during the 1994–1995 school year, more than 40 percent of the school’s students would have fallen into this new “conditional admission” category. And, Dr. Hudson added, “If that 40% of students who are trying to get into Mississippi Valley State, Alcorn State and Jackson State don’t . . . we will lose them, period. Not even to a junior college.”[267]

Fewer students, of course, would mean fewer dollars for the schools. Dr. James Lyons, president of historically black Jackson State University, estimated in the spring of 1996 that acceptances to Jackson could decrease by as many as 500 students for the coming school year. Such a drop in enrollment would cost the university $2.5 million out of a $57.4 million budget.[268] The decrease ended up being approximately half that amount—257 fewer students enrolled in 1996 than had done so the previous year—which still cost the university over $1 million.[269]

Others question the effectiveness of the summer remedial program as a tool for college preparation. Joyce Payne, director of the public black college office of the National Association of State Universities and Land Grant Colleges, said the planned summer programs were not likely to “wipe out the educational deficits built up over 12 years of black students going to antiquated and substandard” public schools.[270] Researchers at the Southern Education Foundation[271] appear to agree, stating that a court-approved summer program “will not substitute for a comprehensive educational remedy that will systematically address the poor preparation that many black Mississippians get in elementary and secondary education.”[272]

Dr. James D. Anderson, professor of education at the University of Illinois, suggested students will be stigmatized by the summer programs. He argued that the way the programs are being set up sends a message to the rest of the students that “those students shouldn’t even be here.” Dr. Anderson believes that schools have enacted similar programs in the past in a way that does not stigmatize students; he said that care should be taken to do the same in this program.[273]

Finally, there is concern about the expense of the summer program. Depending upon the institution, the program costs between $1,900 and $3,000 per student. Robert Kronley, senior consultant to the BellSouth Foundation and the Southern Education Foundation, suggested that:

[A summer remedial program is] not a very great incentive for a kid who comes out of the high school in the Delta to go to take—and doesn’t qualify for immediate admissions, to decide that she really is going to go down the road, lose a summer job, have to pay money for this program, with the possibility that she’s not even to be admitted to institutions.[274]

The Southern Education Foundation reports that, of the 717 students who were eligible for the summer remedial program for the 1996–1997 academic year, only 218 enrolled because 120 students missed the enrollment deadline and 379 chose not to or were otherwise unable to enroll. States the foundation’s report: “Critics of the policy noted that students, particularly those from needy families, must work during the summer months and may have limited access to such a summer program.”[275]

Moreover, the summer remedial program expense is being added to education bills that families are already struggling with: throughout the 1980s, the tuition and fees increased at both public and private institutions at twice the rate of inflation. In Mississippi, tuition at public colleges and universities is about 40 percent of the average minority income. But while costs are rising, tuition assistance is not. In 1976, students borrowed $1.20 for every dollar they received in federal grants. By 1995, students had to borrow approximately $4.30 for every dollar they received in grants.[276]

The Appeal of U.S. v. Fordice

In April 1997, the U.S. Court of Appeals for the Fifth Circuit ruled on the appeal to Judge Biggers’ March 1995 ruling.

Admissions Policies and Practices

The appeals court said the district court was within its discretion to implement uniform admissions standards[277] among the state’s public university system.

In the failed appeal, plaintiffs made two challenges to the new admissions policy. First, they argued that it would significantly reduce the number of black students eligible for regular admission to the university system, and thereby disproportionately burden black students with a loss of educational opportunity.[278] Second, they argued that the court’s reliance on the summer remedial program to compensate for the projected decline in regular admission of black students was inappropriate because the program was untested and incompletely defined at the time of trial. Moreover, they suggested that the summer program is not a viable option for the many black students who must work during the summer to pay for college in the fall.[279]

The appeals court ruled, however, that the district court was within its discretion to make admissions standards uniform throughout the four-year higher education system. The court noted that the differential admissions criteria of the de jure past “fostered both segregation of the races and the public perception that the institutions with lower standards—the HBIs—were of inferior quality.”[280] Moreover, the court said, “Fordice does not require that all students who would have been admitted under the prior, unconstitutional admission standards be admitted under the reformed admission standards without regard to the educational soundness of the reformed standards.”[281] The appeals court was careful to point out, however, that if the new admissions policy was unable to meet its objectives, then the court should implement an alternative solution:

As contemplated, the new standards should result in the identification and admission of those applicants who, with reasonable remediation, can do college level work. . . . If . . . the spring and summer program is unable to any significant degree to achieve its intended objectives of identifying and admitting otherwise eligible applicants—i.e., applicants who could, with reasonable remediation, successfully complete a regular academic program—for whatever reason, then the program must be reevaluated. The District Court’s proper retention of jurisdiction over this action indicates its intent to examine this important component of the admissions system once the relevant data becomes available.[282]

A study by the Southern Education Foundation suggests that the new standards have had a negative impact on access for entering black students: between fall 1995 and fall 1996, first-time, full-time black freshman enrollment at Mississippi’s public universities dropped by 463 students. Most of the decline was at the three historically black universities: the number of black freshman dropped by 12 percent at Alcorn State, by 24 percent at Jackson State, and by 27 percent at Mississippi Valley State. With this decline, Mississippi in 1996 had fewer black freshmen and lower representation of them in the cohort than it did 20 years before.[283] And recent numbers indicate a continuing downward spiral. Between 1995 and 1999, the total number of black freshmen enrolled at the state’s campuses dropped 17.3 percent.[284] And at black campuses, in 1999, 1,588 were enrolled compared with 2,314 in 1995.[285]

However, at the same time that first-time, full-time black freshmen enrollment is decreasing, the overall number of black students in the university system has increased by 7.3 percent since the new admissions standards went into effect. It is not entirely clear why this is the case, but the district court has directed the College Board to continue monitoring the various elements that affect enrollment figures and advise the court of its findings.[286]

Elimination of Remedial Courses

In ordering the new admissions policies, the district court tacitly approved the elimination of “most, perhaps even all” of the remedial courses that had been offered at all of Mississippi’s four-year colleges and universities, most notably by the HBIs.[287] However, the court of appeals pointed to predictive data indicating that students admitted with the minimum qualifications required under the new standards are not predicted to achieve a C average during their first year in at least three of the historically white institutions. The court directed the lower court, on remand, to “determine if remedial courses are needed to help ensure that students admitted under the new admissions criteria have a realistic chance of achieving academic success.”[288]

Following a status conference on the Fordice case, the district court stated in a June 1988 order that it “approved the request of the Board to continue remedial programs for some fully admitted students who are admitted under the new admissions standards and also for those students who successfully complete the summer programs.”[289]

Scholarship Policies

The district court found that basing scholarship eligibility on ACT cutoff scores is not traceable to the dual system and does not have current segregative effects. However, the appellate court found otherwise.[290] The court said that because a scholarship requires a student to achieve a certain minimum ACT score to be eligible for the award, it follows that a student who has not achieved the requisite ACT score will not be considered, regardless of how impressive his or her grades or other academic achievements might be.

The court ruled this was “constitutionally problematic” for “the same reason the Supreme Court found the use of the ACT in admissions to be so.”[291] The court said that just as there may be students who could do college level work yet might be precluded from enrolling in an institution that maintains ACT cutoffs in admissions, there may be students who have outstanding academic achievement that merits recognition apart from their ACT scores.[292]

The court pointed out, however, that the practice of rewarding academic achievement as determined by standardized test scores is not per se unconstitutional “even where it results in significant racial disparities in receipt of awards.” Rather, said the court, the use of ACT cutoffs in the award of scholarships raises constitutional suspicion only because of the history of de jure segregation in Mississippi.[293] The court said:

Use of ACT cutoffs does not take place on a clean slate in Mississippi, however. The alleged practice of basing scholarship eligibility on minimum ACT scores flows from earlier discriminatory use of ACT cutoffs and therefore triggers further constitutional inquiry, under Fordice, into whether it continues to have segregative effects.[294]

The court noted that district court findings and other evidence indicate “that scholarships with ACT cutoff scores are disproportionately awarded to white students,” and that black applicants to Mississippi universities are more likely to need financial assistance than white applicants. The court observed that “[t]o the extent that academically accomplished black students are unable to achieve ACT scores that would qualify them for scholarships at the HWIs, they are discouraged from both applying to and matriculating at these institutions.”[295] The court concluded that while the potential segregative effect of the use of ACT cutoffs in determining scholarship eligibility “is perhaps somewhat less pronounced than that of the use of ACT cutoffs in admissions,” the evidence nevertheless indicated that such potential did exist.[296] The court thus directed the district court to “reform current policies consistent with sound educational practices,” but added that “we do not hold that reliance on ACT scores for scholarship purposes must be eradicated entirely.”[297]

In a June 1998 order of the district court, following a status conference on the Fordice case, it was determined that “use of ACT scores as the sole criterion in awarding scholarships has been eliminated. . . .” The College Board was directed to submit further information to the court “concerning the issue of the educational soundness of the use of ACT scores as a criterion in conjunction with other factors in the awarding of scholarships both at the historically white institutions and the historically black institutions.”[298] 

The Merger of Mississippi Valley State and Delta State

The appeals court stated that “all parties apparently have concluded that merger of Mississippi Valley State with Delta State is neither required nor desired.”[299] The district court has since held that it will “no longer consider the merger” of the two institutions, and it directed the College Board to conduct a study of programs that can be implemented at Mississippi Valley State which will “attract other-race students.”[300]

The appeals court strongly suggested that simply investing money into Mississippi Valley State will not, by itself, necessarily lead to integration:

There was testimony that the Louisiana experience with implementation of a consent decree to desegregate public institutions of higher education was not successful in attracting white students to historically black universities, despite investment of over $75 million in new academic programs at those universities. The evidence showed that there was no correlation between dollars expended on new program implementation and white enrollment in those programs. During the six years (1981–87) that the Louisiana consent decree was in effect, white enrollment in predominantly black universities increased by just 1.1%, while black enrollment in predominantly white universities decreased from 56% to 47% of black enrollment in the system as a whole.[301]

The court of appeals did suggest, however, that well-planned programs which respond to the particular needs and interests of local populations can help to desegregate historically black institutions. Specifically, the court noted that evidence indicated that programs which are not duplicated at proximate institutions, are targeted to local demands, and are offered through alternative delivery systems (such as off-campus, evening, or weekend programs) have had success in attracting white students to historically black institutions in other states.[302]

Funding Analysis

The appeals court concluded that the present formula used to allocate funds among the different state universities does so as a function of the size of each institution’s enrollment, faculty, and physical plant. The court noted that while the formula responds to conditions that to a significant degree have resulted from the mission designations (and consequently results in the historically white institutions receiving a greater proportion of funds), the manner in which the formula does so is guided by valid educational concerns and is not linked to any prior discriminatory practice.[303]

Plaintiffs had argued that the district court should have considered adjustments to the funding formula in two respects, neither of which the court found to have merit. First, plaintiffs argued that the formula should be adjusted for the higher cost of remedial education, citing evidence that a disproportionately high number of black students in Mississippi are underprepared for college and that such an adjustment would encourage the historically white institutions to provide remedial courses and to attract black students and would aid the historically black institutions in providing the remedial instruction needed by their students. The court of appeals concluded, however, that the plaintiffs failed to identify any traceable policy related to the funding of remedial education, nor did they identify any evidence that remedial education as structured under the remedial decree is or is likely to be underfunded.[304]

Second, plaintiffs argued that the funding formula should be adjusted to take into account the proportion of students at a university who are in need of financial aid. The court of appeals concluded that the funding formula provided funds for scholarships and fellowships (which are only a portion of the total financial aid available to students at each university) on the basis of each university’s tuition income. It is clear that the state universities which charge the highest tuition—the three comprehensive historically white institutions—also generally have the largest proportion of students who have little or no need for financial assistance. However, the court of appeals said the plaintiffs identified no traceable policy concerning the adequacy of scholarship and fellowship funds provided to the historically black institutions, and any potential segregative effects of the failure of the formula to take financial need into account is a function of the socioeconomic status of black applicants, not a traceable policy of the de jure system.[305]

The court of appeals did note, however, the lower court’s determination that the quality of fixed equipment (such as science lab furnishings), technical equipment, and scientific equipment at the historically black institutions are inferior to that at the historically white institutions.[306] The appeals court made it clear that to the extent these disparities are attributable to the mission assignments and have segregative effects that will be reduced by additional funding, then relief may be in order.[307]

U.S. Supreme Court Rejects Further Review

On January 20, 1998, the U.S. Supreme Court, without comment, turned away the argument that the revised college admission plan and Mississippi’s longstanding college funding formula have left in place remnants of the old segregated system.[308] The appeal, which failed, had argued that the state, by not dismantling its structures that maintained its dual system, was continuing not only to segregate, but also discriminate by discouraging blacks from attending college.[309]

Justice Department lawyers had advised the Justices to reject the appeal because further issues remain to be resolved by the lower court. But government lawyers said the nation’s highest court may need to review the case in the future.[310]

Mississippi Senate Universities and Colleges Committee chairman Hillman Frazier (D-Jackson) said that the U.S. Supreme Court’s decision should prompt more discussions among all sides in the suit. “The court has spoken. We know what the thinking is of all parties,” he said. “This is a golden opportunity for the Legislature and College Board to get together and resolve this thing. It’s been around too long.” Frazier said the state should “send positive signals to the plaintiffs” that it wants to improve situations at the three historically black colleges.[311]

Mississippi College Board spokesperson Pam Meyer said the board is pleased. She said the board now will ask the Legislature to put more money aside for the Fordice case.[312]

Alvin Chambliss Jr., the lead attorney for the plaintiffs, said that the “case is not over. Nobody has said the system is desegregated.” And Mississippi State Representative Jim Evans (D-Jackson), a member of the legislative Black Caucus, also said the court ruling does not end the case. “If he [the judge] had given us equity and fairness, we would not have appealed it,” the lawmaker said. “It will continue. . . . I’m not going to knock the Supreme Court for sending it back because it ought to have been settled by now,” Evans said, adding that the state could speed up the end of the case by working with plaintiffs.[313] Mr. Chambliss has petitioned the Supreme Court again to review all lower court decisions.[314] He has challenged the change in the admissions policies of the state schools and has proposed that the state spend approximately $300 million and set up professional programs such as a law school or nursing programs at the campuses.[315]

Mark Henry, chief legal adviser for Governor Kirk Fordice, said that the denial by the Supreme Court of the appeal of Fordice “means the end of the litigation is in sight. . . . That’s good news for the taxpayers, that’s good news for the students of Mississippi.”[316]

Even before the Supreme Court issued its ruling, several individuals involved in the suit called for settlement: Dr. Clinton Bristow, president of historically black Alcorn State University, said, “It’s time to call it quits” just after the April 1997 ruling of the appeals court. And U.S. Representative Bennie Thompson (D-MS), one of the plaintiffs, publicly called for some type of settlement in the case, saying, “I think it is time for all parties to sit down and see if we can put this case to rest.” Finally, Howard University Law School professor Ken Tollett Sr. argued that it was time to settle because not much more could be achieved at the judicial level in the case. Professor Tollett said:

[Lead attorney for the plaintiffs Alvin] Chambliss and I have disagreed about this for years. I think we’re better off in the political process than in the judiciary. Look at Louisiana and Alabama. It was the leadership of the Black [legislative] caucuses in those states that provided good settlements and provided for the enhancement of Black institutions. Since Mississippi has such a large number of [black] legislators, they may be able to substantially help these students, if not constrained too much.[317]

This year marks the 25th anniversary of Fordice. Lilly Ayers, the 71-year-old widow of the original plaintiff, Jake Ayers Sr., said recently, “I felt like it would be a long time but not 25 years. I don’t think my husband would have felt it would take 25 years, either. It was so simple.”[318]

Hopwood or Fordice—Which Controls?

In Hopwood v. Texas,[319] the Fifth U.S. Circuit Court struck down an affirmative action admissions policy at the University of Texas Law School.[320] The decision has been interpreted by the state attorney general as prohibiting any use of race in higher education policy. In February 1997, Texas Attorney General Dan Morales formally declared that Texas public universities “would employ only race-neutral criteria in administering their internal policies, including admissions, financial aid, scholarships, fellowships, recruitment and retention.”[321]

Alvin Chambliss Jr., lead attorney for the plaintiffs in the Fordice case, argued that his case “trumps Hopwood” and that, in fact, “Hopwood is dead,”[322] adding that unlike in Hopwood, the Fifth Circuit ruled in Fordice that diversity is important, that “race does matter.”[323] Mr. Chambliss said, “The ultimate question for black public colleges is whether or not Hopwood will ultimately hurt the overall access movement. The issue for traditionally white institutions is, whether framed as diversity or affirmative action, do black students have access to higher education?”[324]

Others disagree with Mr. Chambliss. For example, Lynn Rodriguez, general counsel of the Texas Higher Education Coordination Board, said she did not believe the circumstances of the Mississippi case could be applied to the interpretation of Hopwood. “I think it’s too far of a stretch,” Rodriguez said. The respective decisions, she said, were narrowly tailored by the U.S. Fifth Circuit Court to address different state higher education systems.[325]

The Hopwood interpretation by Attorney General Morales has stirred a great deal of opposition among numerous officials and legislators in Texas. The legislators have argued that Texas is obligated to use race-based affirmative action to remedy prior discrimination in higher education, and they argued that both the Fordice decision and the 1978 U.S. Supreme Court decision Regents of the University of California v. Bakke[326] permits such remedies. “What’s needed is some authoritative statement by the Supreme Court of where Bakke stands,” said Samuel Issacharoff, a University of Texas law professor and a lawyer for the university in the Hopwood case. “One of the ironies of the situation is that until Hopwood came along Bakke stood in a vacuum. Bakke came in 1978 and there’s been no interpretive case law since then. . . . I can’t think of another area of law where there’s been one major Supreme Court decision that’s stood by itself for 25 years and then a lower court comes along and says it’s to be disregarded.”[327]

In March 1997, the Department of Education’s Office for Civil Rights informed Texas state officials that it would open a review “to determine whether any vestiges of prior discrimination are causing discrimination to continue” in Texas. According to Norma Cantú, assistant secretary in the Office for Civil Rights at the Department of Education, the “review is being conducted under the standards set out by the Supreme Court in 1992 in the Fordice case regarding the obligation of formerly segregated systems of higher education to eliminate vestiges of those old systems.”[328]

Community Colleges

The state of Mississippi is divided into 15 community college districts, each of which has a community college in it.[329] The state community college system—which currently has a budget of $250 million—evolved from the old system of agricultural high schools, which were boarding schools. In the 1920s the State Legislature authorized two additional years of post-high school work. The mission, as stated by the Legislature, is to offer programs that enhance and improve the quality of life for Mississippi citizens. This has been translated into offering academic programs that can be transferred toward earning a baccalaureate degree at a four-year university. The community colleges are also used to train people in professional areas and technical/vocational areas, which has become an increasingly important part of the mission. Dr. Martha Cheney, project coordinator at the Public Education Forum in Jackson, Mississippi, testified, “Right now we are doing more responding to industry with our community college system, on-the-job training, our community colleges are focusing much more on adults and technology, retooling people. . . .”[330]

Dr. Olon E. Ray, executive director of the Mississippi State Board for Community and Junior Colleges, described the mission of the community colleges—all of which have dormitories and extracurricular activities—as “comprehensive” in nature, meaning that the programs span the entire spectrum, including full-time academic, part-time academic, allied health-related (e.g., dental assistant, medical assistant, and pharmacist technician), vocational, technical, and work force training and retooling. Among the 91,000 students overall, the biggest growth area is in the noncredit, work force-related “transition programs”—or programs that give students skills necessary to gain (or advance in) employment, but that do not necessarily lead to a degree.[331]

Dr. Ray reported that in 1994, the State Legislature passed the “Workforce and Education Act.” This act created “one-stop” career centers in each of the state’s community colleges. The centers were designed to help area employers and employees who had training needs, placement needs, assessment needs, and all other needs which contribute to a person’s employability.[332]

According to Dr. Ray, the “traditionalists” in community college education will say that its primary mission is for “academic bridging,” or serving as a passageway between the two-year community colleges and the four-year universities.[333] Students first enroll in a community college where they take remedial,[334] college prep, and lower level college courses. The students then transfer to the four-year universities and work toward the baccalaureate degree.[335] Students who complete 24 hours of classes in the community colleges are permitted to transfer into any one of the state’s eight public universities.[336]

Dr. Ray said that while the community colleges are still strongly committed to “academic bridging,” only about 4,000 of the 91,000 students—or less than 5 percent of the total student population—transfer to four-year universities each year.[337] Instead, the focus has been turning toward the “transition programs,” which Dr. Ray believes is a positive change:

You have to understand that I am a 56-year-old native Mississippian who has seen generation after generation of people not involved in higher education—not involved in successful completion of a secondary education. Those are not disposable people. . . . And in many cases it’s not practical for a working person to go back and get a baccalaureate degree. They don’t need one. But they do need skills to work. We’re talking about quality of life by increasing per capita income, by increasing employability, and all those kinds of things. And we are the right ones to do that. I think it’s a major economic/human initiative.[338]

The 1990 census in Mississippi showed that there were 547,000 people without a high school education. Given the projection that 80 percent of all new jobs will require education beyond the high school level, community colleges in Mississippi will continue to play a useful role in imparting needed knowledge and skills to people seeking those jobs.

According to Dr. Ray, community colleges help increase access to and desegregation within the state system of higher education because they are more accessible, more affordable,[339] and more “culturally . . . friendly in helping nontraditional[340] students to access the first two years of a baccalaureate degree.”[341]

As for creating a multiracial environment on the campuses, Dr. Ray said that while they “worry about the racial mix,” they do not have a “super aggressive campaign to single out any group of people” in their recruiting efforts. He reported that while there is a “pretty good integration” of activities within the community colleges, he also believes there is some racial and ethnic tension. However, Dr. Ray suggested that less tension exists on the community college campuses than in many other institutions “by virtue of why we are, and who we are, and how we do business.” Moreover, Dr. Ray argued that racial tension is driven by issues of race and economics, saying, “If we do not raise per capita income in this state broadly for most of the people, we are going to continue to fight. . . ”[342]

Race Relations and Desegregation

Dr. Ann Homer Cook, a consultant in the area of education who recently completed writing her doctoral dissertation on the U.S. v. Fordice case, said there are contingents of both whites and African Americans who do not want to see meaningful integration at certain institutions because of what has occurred in the past. She reported that there are people who work at the University of Mississippi and at Jackson State University who remember turbulent events of the 1960s, including the controversy surrounding James Meredith as the first African American at the University of Mississippi, as well as the controversy surrounding the police coming onto the Jackson State University campus, which resulted in student deaths. Dr. Cook believes there are people at both historically white and historically black schools who strongly oppose meaningful integration.[343]

Dr. Cook also suggested that there is a strong feeling among African Americans that their community is bearing the bulk of the burden of desegregation. Said Dr. Cook, “Many African Americans are now asking themselves, ‘Why should we have to give up—through closings or mergers or whatever—the black schools that we relied upon for education during the time we were excluded by law and by practice from the traditionally white institutions?”[344] And Dr. William Sutton, president of historically black Mississippi Valley State University, agrees, arguing that while African Americans did not create the system of segregation, now the burden of dismantling segregation has been unjustly shifted upon them.[345]

Dr. F. Kent Wyatt, president of Delta State University, a historically white institution, said that over 25 percent of the school’s students are African American, and that the graduation rate for minority students is equal to that of nonminority students. He said there is “complete integration” of extracurricular activities, “from homecoming queen to student body president.”[346]

Dr. Wyatt does not believe that inequities in funding have existed between the historically black and the historically white institutions. He argued that the distinction must be made between schools that are “regional” schools (including Jackson State, Mississippi Valley State, Alcorn State, and Delta State universities) and the “land grant” schools (including the University of Mississippi and Mississippi State University). Dr. Wyatt said the “regional” schools have all been funded exactly alike, whether they are historically black or historically white. He said the “land grant” schools are better funded not because they are historically white institutions, but, rather, because their missions are much wider in scope, including research, outreach to nearby communities, etc. Dr. Wyatt argued that the state cannot afford four “land grant” institutions. He said the University of Southern Mississippi and Jackson State are both moving toward becoming such schools, and this is acceptable only if the state has the funds to pay for it. For now, said Dr. Wyatt, Mississippi can afford four such schools only because the gaming industry is generating so much tax revenue for the state.[347]

Dr. Ray argued that most people believe the Fordice decision to be “moderate” because it did not create the degree of change that many people expected. He said:

They might have expected some bolts of lightning and reconfiguration. The thing that has been talked about most is which colleges and universities are going to be closed, and which ones are going to survive. . . . I think when that didn’t happen, the decision lacked a kind of excitement and drama about it. . . . But the policymakers, by and large, see it as an . . . opportunity for improvement.[348]

Dr. Ray also suggested that while the impact of Fordice will be “very positive,” it will not be “revolutionary.” Said Dr. Ray: “I have been involved in school work since the 1960s, and as a rural Mississippian reared in that element, I think that a lot of these things would not have happened without the court’s interdiction. . . . I think it’s another installment, another increment in paying our dues for bringing about change.”[349]

Robert Kronley, the primary author of Transformation Through Collaboration: Desegregating Higher Education in the Mississippi Delta, argues that higher education in Mississippi has been “entirely reactive, and it’s been reactive to judicial mandates, and that’s not good enough.” He added, “Litigation can only go so far, and I think it’s really at a point where we’re beyond litigation and it really depends on a lot more than that.”[350] “What it’s going to take is a lot more than just reading the decision and thinking narrowly that we’ve complied with it. . . . [O]ne of the worst things that can happen is you’ll have full compliance with the decree and nothing else, so the notion will be oh, this is passed, it’s gone away, we’re done, we don’t have to do any more, and we go back to where we were before. That’s unacceptable. . . .”[351]

And yet, Mr. Kronley also suggests a reason why more might not be done beyond what is court-ordered: “I think people have essentially [been] afraid to take risks, because the potential benefits that they see have not really been profound. I mean, in order to take a risk you’ve exposed yourself to being in the spotlight and taking a lot of heat from other people in the community, and I think that’s—you know, there’s a history in the state, people being at a minimum driven away if we do that. . . .”[352]

Robert Kronley testified that it will take “generations” before people stop “think[ing] of X or Y as a black college or a white college.” He suggested that it no longer matters if a school is looked upon as historically black or historically white—indeed, he suggested that it is irrelevant what percentage of the student body is black or white[353]—provided the institution offers high-quality programs and reaches out to students of all races.[354] He believes that “to the extent that a racial identification is either . . . a badge of inferiority, or . . . serves to restrict choice on the basis of race,” then “we need to do everything we can do [to correct it].”[355] Mr. Kronley suggested that white students will attend historically black colleges and universities only if the academic programs being offered are of a very high quality.[356] As he put it, “high-quality programs attract whites.”[357]

Currently, of the eight public universities in Mississippi, three are predominantly black and five are predominantly white.[358] Dr. Ray, executive director of the State Community College Board, believes this will remain the situation for the foreseeable future for two reasons: first, because of demographics; second, because many people simply do not want change to come about.[359]

First, as for demographics, Dr. Ray argued that the numbers of white students who are taking college preparatory courses and planning to attend college are “feeding the pipeline, and it’s going to stay that way for a while.”[360]

And second, as for people being averse to change, Dr. Ray said:

There is that element always . . . We still have that mentality in some of our people . . . They’re not all white and they’re not all black . . . It represents a kind of thinking . . . It has to do with power and control in many ways . . . Some of it has to do with anxiety and fear and distrust, where people don’t trust themselves in other people’s hands, and if they lose control—more specifically, if black people do not have black universities, they will not control universities that are majority white. They see that as kind of a bastion, and I see part of their argument about that. What I’m afraid they give up in too many cases is the quality of service that they provide and diversity that they need within their own universities, too, just like white folks need diversity in theirs.[361]

Dr. Leroy Morganti, vice president for university advancement at historically white Delta State University, reported during the Mississippi Delta hearing that the Fordice case did not affect racial and ethic tensions on the campus of Delta State University. Rather, said Dr. Morganti, the case inspired a sense of “uneasiness” on campus because of the possible merger that was going to take place between Delta State and Mississippi Valley State universities. He said that “no one knew what was going to emerge [after such a merger]. It was an institution that we would have to gain public acceptance for, because it wouldn’t be them and it wouldn’t be us.”[362]

Dr. James D. Anderson, professor of education at the University of Illinois, suggested that many of the plans being put into effect as a result of the Fordice decision—including the raised admissions standards that have decreased the number of people of color entering Mississippi universities—are a sort of “backlash or punishment” for filing the suit in the first place.[363] Dr. Anderson believes that, eventually, it will be the historically black institutions that are most heavily—and negatively—affected by the Fordice case.[364] Specifically, Dr. Anderson believes that while there are no plans to do this in the immediate future, Mississippi Valley State will eventually be closed and Alcorn State will be placed under the auspices of Mississippi State University. While he believes Jackson State will remain open as an “urban university,” such mergers or closings would mean the elimination of two of the state’s top three degree-awarding schools for African Americans in Mississippi.[365]

Finally, Dr. Anderson said that he had hoped that the Fordice lawsuit would be remedied by a long-range plan. Instead, he argued that a “quick-fix” has been put into place—that the court utilized “damage control” provisions rather than instituting fundamental changes to the system. Dr. Anderson believes there’s a strong feeling by the court that it’s time to “move on.” He said that the most serious flaw of the court’s ruling is that it keeps the state college system “separate and divided” because none of the schools are interdependent: there is no self-interest in the historically white schools or historically black schools in working together. Indeed, Dr. Anderson believes there is a strong undercurrent of “mistrust and hostility” pervading both historically white and black schools which is directed toward each other.[366]

Robert Davis, professor of law at the University of Mississippi, said there are many “positive things” occurring with race relations in Mississippi. He said there is a “lot of baggage” in the area of race, that the “races understand each other well,” and that this understanding frequently leads to open and good debate and exchange. However, Professor Davis argued that there is still a “dual society” in Mississippi, which is largely “by choice” on the part of both whites and African Americans. He stated:

When it comes to interacting socially, the atmosphere in Mississippi is different from other parts of the country. The different races are not comfortable with each other—separation seems to be promoted in different ways, including in professional groups, in social groups, in churches, etc. You basically have two societies that go about their lives and only get together when they have to. People don’t seem to want bridges built.[367]

Of course, there was also testimony at the Mississippi Delta hearing to suggest that important social interaction is starting to take place among the different races. Dr. William Sutton, president of historically black Mississippi Valley State University, said he “can see some changes . . . in the communities and the rotary clubs and on bank boards and also in the chambers of commerce that we are beginning to participate a bit more, and that will help, but we have a long ways to go.”[368]

Dr. Anderson, professor of education at the University of Illinois, was an expert witness in the U.S. v. Fordice case. He visited most of Mississippi’s universities and said there was an “undercurrent” of hostility throughout the state with “very little good will” on either side of the Fordice debate.[369] Dr. Anderson believes that African American students who attend historically white schools feel alienated and unwelcome on campus.[370] Dr. Morganti, vice president for university advancement at historically white Delta State University, reported that the “cornerstone” of the school’s “efforts to remove messages of segregation” on the campus is to provide a campus and classroom environment “where students of all races feel welcome and comfortable.”[371]

Dr. Sutton pointed out that whatever racial and ethnic tension exists on the higher education campuses must be considered in the context of a long history of race relations, and in the context of primary, secondary, and higher education. Dr. Sutton said:

Actually the tension, if there is tension, is not so much related to the campus. It’s a historical type thing. When desegregation came to the Delta, a large number of academies were created for white students, and that is still going very strong here. So we have to overcome a great deal in order to make people feel comfortable coming to school in a desegregated higher education system, when the elementary and secondary education is still highly segregated, because of the private academies . . . [I]t’s very difficult to make them change immediately on finishing 12th grade to come to an historically black college.[372]

Robert Davis, law professor at the University of Mississippi, was asked during the Mississippi Delta hearing, “Do you think that racial and ethnic tensions exist under the current university system?” He replied, “Yes, I think they are exacerbated under the current university system. . . . I think the choices that are available and the history upon which those choices are made certainly exacerbate racial tensions.”[373]

Later, Professor Davis was asked if racial and ethnic tensions had been exacerbated as a result of the current operating standards for the system. Professor Davis answered by describing racial incidents—“all very recent”—which have taken place at the University of Mississippi, including an African American fraternity being burned shortly before opening; students being taken away from campus, stripped, and having certain obscenities written on them; and obscenities written in the law school bathroom facilities. He then concluded, “So there is—I guess my response is that this systemic structure does help to exacerbate the tensions in my view.”[374]

And while Professor Davis said there were “absolutely” no administrative policies at the state universities that were “responsible” for the racial tensions on the campuses, he stated:

The argument that we’ve heard before is that students are able to make free choices here. Well . . . that’s true in a way, but when your choices have historical basis and that structure continues to exist, the system is exacerbating the problem, not the policies that currently exist in 1997, but a structure that was established when each one of these institutions was created and each one of the institutions that were chartered have in their charters very, very clearly direct [mandates] whether or not they’re supposed to, educate white women or Negroes, to become teachers or what have you, and that is the structure. . . . I am disappointed with the conclusion by Judge Biggers that changing that structure is not constitutionally mandated . . . until that system is adjusted, these problems will continue.[375]

Robert Kronley, the primary author of Transformation Through Collaboration: Desegregating Higher Education in the Mississippi Delta, picks up on this theme by arguing that, while blatant policies are not working to discriminate, something lingers from the past which appears to influence individual and institutional behavior. “[T]here are no longer policies in this state which essentially work against people on the basis of race. There are, however, practices. Some of them have been ingrained and have not really changed very much. . . ,” he said.[376]

In the realm of the Mississippi public university system, a similar sentiment is expressed by Dr. Roy Hudson, vice president for administration at Mississippi Valley State University and a principal in the Fordice case since it began in 1974. He said that Mississippi’s public higher education system “will never be without its racial duality.”[377]

[1] George B. Autry and Dr. C.E. Bishop, MapFacts: Workforce Preparation, series no. 1 (Jackson, MS: Foundation for the Mid South, February 1994).

[2] See Dr. Arthur G. Cosby, ed., and others, “Framing the Future: Views on the Future of the Mississippi Delta,” A Social and Economic Portrait of the Mississippi Delta, Mississippi State University, December 1992.

[3] Roger Malkin, CEO, Delta and Pine Land Co., Scott, MS, telephone interview, July 19, 1996.

[4] Dr. James Hemphill, special assistant to the state superintendent of education, telephone interview, July 19, 1996.

[5] U.S. Department of Education, Digest of Education Statistics 1995, p. 21, table 12 (hereafter cited as DOEd, Digest of Education Statistics).

[6] Rene Sanchez, “Education Endeavor Falling Short: 10-Year Campaign to Improve Nation’s Schools Shows Few Gains,” The Washington Post, Nov. 10, 1995, p. A3.

[7] See generally State of Mississippi, Department of Education, Office of Accountability Reporting, Mississippi Report Card ‘95 (hereafter cited as Report Card ‘95).

[8] State of Mississippi, Department of Education, Office of Accountability Reporting, Mississippi Report Card ‘99 (hereafter cited as Report Card ‘99).

[9] U.S. Department of Education, The Condition of Education, 1999, table 51.

[10] U.S. Department of Education, The Condition of Education, 1995, indicator 32.

[11] U.S. Department of Education, The Condition of Education, 1999, table 385.

[12] Sid Salter, “Education Emerging as Most Defining Issue in Governor’s Race,” The Scott County Times, July 9, 1995, p. 3A.

[13] Report Card ‘95, p. iii.

[14] DOEd, Digest of Education Statistics, table 62, p. 73.

[15] Cathy Hayden, “Public vs. Private Schools Issue Still Kindles Passions in Mississippi,” The Clarion-Ledger, July 16, 1996, p. 6A.

[16] Ibid.

[17] Roger Malkin, testimony before the U.S. Commission on Civil Rights, hearing, Greenville, MS, Mar. 6–8, 1997, transcript, p. 57 (hereafter cited as Hearing Transcript).

[18] Ibid.

[19] See Larry Hailey, “Capacity of the School Systems,” A Social and Economic Portrait of the Mississippi Delta, Mississippi State University, December 1992.

[20] Ibid., p. 109.

[21] Ibid., p. 121; Malkin Testimony, Hearing Transcript, p. 149.

[22] Hailey, “Capacity of the School Systems,” p. 109.

[23] Report Card ‘95, p. iii.

[24] Ibid.

[25] Cathy Hayden, “Delta Schools Search for Answers,” The Clarion-Ledger Internet Edition, Dec. 21, 1999, <http:// www.clarionledger.com/news/9912/21/21deltaschools.html> (May 5, 2000).

[26] Hailey, “Capacity of the School Systems,” p. 112. Moreover, several studies have found that socioeconomic status outweighs all other variables in predicting student achievement notwithstanding additional spending. Ibid.

[27] Southern Education Foundation, Miles to Go: A Report on Black Students and Postsecondary Education in the South, Atlanta, GA, 1998, pp. A35, A36. See also Christopher McEntee, “Mississippi District Inaugurates Bond Program to Enhance Fair School Funding,” The Bond Buyer, Nov. 4, 1997, p. 3.

[28] Gina Holland, “Top School Districts All Have Appointed Superintendents,” The Clarion-Ledger, June 11, 1996, p. 3B.

[29] Ibid.

[30] See Hearing Transcript, p. 199.

[31] Ibid., pp. 142–43.

[32] Ron Love Testimony, Hearing Transcript, p. 118.

[33] Hattie Nalls Testimony, Hearing Transcript, pp. 624–25.

[34] Ibid.

[35] Ibid.

[36] Ibid., pp. 118–19.

[37] Ibid., p. 198. Dr. Cheney testified that the issue of electing superintendents had been considered by the State Legislature “ad nauseam,” but the measure is never passed, largely because the chairman of the House Education Committee “very strongly and philosophically believes in the election of school superintendents.” Ibid., p. 199.

[38] Andrew Mullins, special assistant to the chancellor, University of Mississippi, telephone interview, July 2, 1996 (hereafter cited as the Mullins Interview).

[39] Clell Ward, telephone interview, July 29, 1996 (hereafter cited as Ward Interview).

[40] Martha Cheney, project coordinator, Public Education Forum, Jackson, MS, telephone interview, July 17, 1996 (hereafter cited as Cheney Interview).

[41] Act of Sept. 30, 1950, Pub. L. No. 874 (codified as amended at 20 U.S.C. §§ 236–244).

[42] U.S. Department of Education, Title I Grants to Local Educational Agencies, p. 1.

[43] Report Card ‘95.

[44] U.S. Department of Education, FY 1996 Title I Allocations. In 1995, the poverty percentage to qualify for schoolwide programs was 60 percent. In 1996 and thereafter, the poverty percentage decreased to 50 percent. Mary Jean LeTendre, “The New Title I, Helping Disadvantaged Children Meet High Standards,” The Title I Times, U.S. Department of Education, April 1995, p. 14.

[45] See U.S. Department of Education, Targeting, Formula and Resource Allocation Issues: Focusing Federal Funds Where the Needs are Greatest, 1993. See also Constance Johnson and Penny Loeb, “Stupid Spending Tricks,” US News & World Report, July 18, 1994, p. 26.

[46] Ibid.; see table 2.2.

[47] Cheney Interview.

[48] James Hemphill Testimony, Hearing Transcript, p. 112.

[49] Ibid., p. 85.

[50] Love Testimony, Hearing Transcript, p. 113. Dr. Love testified, “My own prediction is that we would have been worse off [without Title I funding], because they played a major role in supporting the activity of the school districts who had insufficient funds to do the kinds of things that they needed to do.” Ibid.

[51] Hemphill Testimony, Hearing Transcript, p. 135.

[52] Rene Sanchez, “Rural Schools Can’t Get Teacher’s Attention,” The Washington Post, June 19, 1996, p. A14.

[53] DOEd, Digest of Education Statistics, p. 85, table 77.

[54] Ibid. In the competition for teachers, some districts have tried to attract new teachers with incentives. For example, Sunflower County added a $400 supplement to the 1995–1996 starting teacher salary of $20,500 in order to recruit teachers to the county. Such efforts, however, are reportedly insufficient for many rural schools where the teacher retention rate is only one or two years. Rene Sanchez, “Staying the Course, Rookie Bucks Rural Trend to Teach and Run,” The Washington Post, June 19, 1996, p. A1.

[55] Stephen Hawkins, “Union Gives Miss. C– for its Efforts to Assist Teachers,” The Commercial Appeal, May 5, 1998, p. B2.

[56] DOEd, Digest of Education Statistics, p. 86, table 78.

[57] Public Education Forum of Mississippi, “Quality Teachers, Every Child’s Educational Birthright,” Jackson, MS, November 1998, p. 10.

[58] Richard L. Thompson, state superintendent of education, letter to Ruby G. Moy, staff director, U.S. Commission on Civil Rights, Apr. 19, 1999. In the letter, Mr. Thompson points to the following evidence of these efforts: an annual salary supplement of $6,000 is paid to teachers who acquire National Board certification; state funding from the Legislature was made available to implement the Mentor Teacher Program; and the State Department of Education applied for discretionary funding under the Teacher Quality Enhancement Grant Programs to recruit and retain teachers in critical teacher shortage areas.

[59] Gina Holland, “Teachers Warily Celebrate Raise,” The Sun Herald, n.d., <http://www.sunherald.com/news/docs/raise050200.htm> (May 2, 2000).

[60] Ibid.

[61] Ibid.

[62] Mullins Testimony, Hearing Transcript, p. 107.

[63] Ibid.

[64] Martha Cheney Testimony, Hearing Transcript, p. 179.

[65] See Hemphill Testimony and Cheney Testimony, Hearing Transcript, pp. 106, 180. Testimony given at the hearing suggested that increased opportunities in other higher paying professions lead many young blacks to avoid the education profession altogether. Mullins Testimony, Hearing Transcript, p. 109.

[66] Love Testimony, Hearing Transcript, p. 108.

[67] Mullins Testimony, Hearing Transcript, p. 76.

[68] Ibid., p. 110.

[69] Love Testimony, Hearing Transcript, p. 111.

[70] Mullins Testimony, Hearing Transcript, pp. 111–12.

[71] Ibid., p. 112.

[72] Ibid., p. 116.

[73] Hemphill Testimony, Hearing Transcript, p. 145.

[74] There was testimony at the hearing that some teachers in Mississippi have been seeking relief from student loan debt through bankruptcy proceedings, suggesting that increased state funding of teacher-training scholarship programs might be helpful in convincing college students to enter the historically moderate-paying field of teaching. Buck Testimony and Cheney Testimony, Hearing Transcript, p. 196.

[75] Hemphill Testimony and Mullins Testimony, Hearing Transcript, pp. 123, 141–42, 145.

[76] It was pointed out during the hearing that the state has “a lot of potential teachers that go begging because there’s not enough money in the William Winter Scholarship Program to give them a scholarship, and they qualify for it.” Mullins Testimony, Hearing Transcript, p. 124.

[77] The task force issued a report in November 1998 titled Quality Teachers, Every Child’s Educational Birthright. It is available from the Public Education Forum of Mississippi, Jackson, MS.

[78] Ibid., p. 9.

[79] On Oct. 21, 1998, President Clinton signed into law the Class Size Reduction Initiative. School districts received a total of $1.2 billion in school year 1999–2000 to hire more than 30,000 new teachers in the early grades. This is the first phase of a plan to hire 100,000 teachers over seven years to reduce average class size in grades one through three to 18 pupils per teacher. Mississippi’s allocation of $19,208,820 will enable an estimated 494 new teachers to be employed. Ibid., p. 12.

[80] Mullins Testimony, Hearing Transcript, pp. 102–03, 106. At the hearing, Commission Vice Chair Reynoso asked Dr. Mullins why teachers in the Mississippi Teacher Corps program become cynical shortly after being placed into the classroom. Dr. Mullins reported that many teachers “have the look of shell shock victims in their eyes” shortly after entering the classroom setting because student reading levels within a single class of 30 students, for example, might range from fifth grade to college readiness. Ibid., p. 114.

[81] Commission Chairperson Berry stated during the hearing: “In most school districts across the country one of the significant problems is teachers who have been on the job a long time, who are burned out, and they would like to have early retirement plans so that they can retire them out . . . and get some new blood. . . .” Hearing Transcript, p. 139.

[82] Mullins Testimony, Hearing Transcript, p. 115.

[83] Ibid., p. 105.

[84] Ibid., p. 115.

[85] Ibid., p. 142.

[86] As Dr. Hemphill stated during the hearing: “I had a very difficult time personally early in the [school desegregation] process wondering why separate but equal wasn’t a satisfactory solution. . . . Just a short while after I transferred over to the black high school in Starkville I understood why separate but equal was not a viable solution. It did not take long to realize that the separate and equal concept was separate and equal had nothing to do with it.” Hearing Transcript, p. 79.

[87] Charles H. Wilson Sr., Education For Negroes in Mississippi Since 1910 (Boston: Meador Publishing Company, 1947), p. 58.

[88] 347 U.S. 483 (1954).

[89] Erle Johnston, Mississippi’s Defiant Years (Forest, MS: Lake Harbour Publishers, 1990) p. 3.

[90] Ibid., p. xiii.

[91] 391 U.S. 430 (1968).

[92] 396 U.S. 19 (1969).

[93] Cathy Hayden, “White Flight Reverses Desegregation Efforts,” The Clarion-Ledger, July 9, 1995, p. 1A (hereafter cited as Hayden, “White Flight”).

[94] See Norwood v. Harrison, 413 U.S. 455, 457 (1973).

[95] Hayden, “White Flight,” p. 1A.

[96] Douglas A. Blackmon, “The Resegregation of a Southern School,” Harper’s Magazine, September 1992, pp. 15–17.

[97] Rene Sanchez, “Academies are Final Bastions of Separateness,” The Washington Post, July 17, 1996, p. A1.

[98] Robert N. Davis, University of Mississippi, associate professor of law, telephone interview, July 25, 1996.

[99] Sutton Testimony, Hearing Transcript, p. 250.

[100] Kevin Sack, “In the South, the Past is Present,” The St. Petersburg Times, Mar. 29, 1998, p. 1D. At the same forum, it was reported that former Governor William Winter, a member of the advisory panel, and John Hope Franklin, the historian who serves as its chairman, both commented on the progress reflected in the simple fact that such a discussion was being held at the University of Mississippi, a place with a history of racial strife. The university’s chancellor, Robert Khayat, who has tried to tone down Confederate symbolism at the school, said events in the South “move forward and backward, seldom in a straight line.” Ibid.

[101] Ward Interview.

[102] Love Testimony, Hearing Transcript, p. 93.

[103] Buck Testimony, Hearing Transcript, pp. 170–71.

[104] Bob Herbert, “Mississippi Learning,” The New York Times, May 13, 1999, p. A31.

[105] Ibid.

[106] Sam Skolnik, “Mississippi 1999: New Era, Old Fight,” Legal Times, Aug. 2, 1999.

[107] Bob Herbert, “Haunted by Segregation,” The New York Times, May 16, 1999, p. 17.

[108] Skolnik, “Mississippi 1999.”

[109] Ibid.

[110] Wendy R. Brown, “School Desegregation Litigation: Crossroads or Dead End?” St. Louis University Law Journal, vol. 37 (1993), pp. 923, 937.

[111] See Alvis v. Adair, Desegregation, The Illusion of Black Progress (Lanham, MD: University Press of America, Inc., 1984).

[112] Cosby, “Framing the Future,” p. 323.

[113] Hemphill Testimony, Hearing Transcript, p. 89. Dr. Hemphill argues that Hollandale, one of the poorest school districts in Mississippi, is an example of an excellent school district that has excellent leadership. Ibid., p. 91.

[114] Malkin Testimony, Hearing Transcript, p. 190. As an example of favoring mediocrity, Mr. Malkin said that it was “outrageous” that the Greenville School Board opposed creating a magnet school “because they’re afraid it’s only being used to attract whites.” Ibid. Mr. Malkin argued that magnet schools are part of “the perfect setting for overachievers to settle and raise their children,” and are therefore necessary to entice business elites to the area. Ibid., p. 192.

[115] Ibid., p. 190.

[116] Ibid., pp. 201–02.

[117] Hayden, “Delta Schools Search for Answers.”

[118] Ibid.

[119] Ibid.

[120] Hemphill Testimony, Hearing Transcript, p. 95.

[121] Ibid., p. 96.

[122] Mullins Testimony, Hearing Transcript, p. 94.

[123] Ibid., p. 95. Dr. Love testified that “many of [the academies] would claim to have open door policies or a vast majority of them will claim that they do. Nobody walks in but they’re open.” Love Testimony, Hearing Transcript, p. 129.

[124] Love Testimony, Hearing Transcript, p. 96.

[125] Ibid., p. 96. Dr. Love testified that the concentration of “very integrated” schools is in northeast Mississippi and the southern part of the state, while the western side of the state—from Tunica down to Woodville along the river—is “predominantly black.” Ibid.

[126] Ibid. See also testimony of Mr. Buck, who reported that “almost all” of the white school-age children in Greenville, Mississippi, attend private academies because that school district is “ninety-something percent black.” Buck Testimony, Hearing Transcript, pp. 169–70.

[127] Gary Orfield, The Growth of Segregation in American Schools: Changing Patterns of Separation and Poverty Since 1968, Council of Urban Boards of Education Steering Committee, December 1993, p. 1.

[128] Ibid. Illinois, Michigan, New York, New Jersey, Pennsylvania, Tennessee, Alabama, Maryland, and Connecticut all had higher percentages of segregation than Mississippi.

[129] Ibid., p. 6.

[130] Hayden, “White Flight,” p. 1A.

[131] Mullins Interview.

[132] Mullins Testimony, Hearing Transcript, p. 130.

[133] Ibid.

[134] Ibid., p. 131. Dr. Love testified that “you have a number of these counties which by margin alone are between 51 and 70 percent black, so . . . there’s only so much integration [that] can be achieved in those particular numbers. . . .” Ibid.

[135] Hemphill Testimony, Hearing Transcript, p. 97.

[136] Ibid., pp. 97–98.

[137] Rims Barber Testimony, Hearing Transcript, p. 153.

[138] Ibid., p. 185. Mr. Barber painted the following grim scenario during his testimony: “They get tracked in the first grade into the slow readers’ class, right. By the time they get to fourth grade everybody else knows how to read pretty well except them. When they take the tests, they do poorly and they often get stuck in the special education program. They get a little larger, they start saying what the heck, I can’t do this stuff. . . . they say something obscene in the classroom and get themselves tossed out for three days and then it happens again, and pretty soon they say hey, it’s more fun on the outside, why don’t I stay here. . . . [then they get rerouted into alternative schooling] or the prison system, whichever comes first.” Ibid., pp. 185–86.

[139] Love Testimony, Hearing Transcript, pp. 98–99.

[140] Ronald Roach, “The Enforcer: An Interview with Raymond C. Pierce,” Black Issues In Higher Education, July 24, 1997, p. 38. Mr. Pierce, the deputy assistant secretary for the Office for Civil Rights, states, “It is extremely important for parents and students and people who are concerned with the educational plight of African Americans in the state of Mississippi to be very mindful of this agreement because we will need their eyes and ears. The federal government needs help on these things. We need partners. There are many people who have an interest in making sure all the children in the state of Mississippi have access to quality education.” Ibid.

[141] Barber Testimony, Hearing Transcript, p. 153.

[142] Buck Testimony, Hearing Transcript, p. 175.

[143] Ibid., pp. 175–76.

[144] Barber Testimony, Hearing Transcript, p. 187. In the first half of the 1996–1997 academic school year, there were between 1,443 and 1,502 students placed into alternative school programs. Ibid., p. 186.

[145] Ibid., p. 187.

[146] Ibid.

[147] Ibid., p. 188.

[148] Love Testimony, Hearing Transcript, p. 100.

[149] Ibid., p. 154.

[150] Judith A. Browne, statement presented to the U.S. Commission on Civil Rights at briefing, “Civil Rights Implications of Zero Tolerance Programs,” Feb. 18, 2000, pp. 3–4 (hereafter cited as Browne, Zero Tolerance Statement).

[151] Love Testimony, Hearing Transcript, p. 100.

[152] Ibid., pp. 101, 154.

[153] Browne, Zero Tolerance Statement, p. 1.

[154] Ibid.

[155] The Advancement Project, Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline, June 2000, p. 12.

[156] Ibid., p. 13.

[157] Tony Plonetski, “Peanut, Pickle Melee Could Mean Jail for 5,” The Clarion-Ledger, Aug. 31, 1999, p. 1A.

[158] Ibid.

[159] Browne, Zero Tolerance Statement, p. 3.

[160] Ibid.

[161] Ibid., p. 5.

[162] Ibid.

[163] Ibid., p. 9.

[164] Ibid., p. 154.

[165] Ibid.

[166] Ibid., pp. 154–55.

[167] Ibid., p. 156. Mr. Barber testified that it “was impossible to get good data, good baseline data to do a comparison to see whether the effect [of implementing alternative schools] was simply more kids being put in some alternative program, plus the same number being expelled, or was the alternative program actually keeping kids who would have been expelled in the schools.” Ibid.

[168] 517 U.S. 1241 (1996).

[169] Miss. Code Ann. § 37-7-103 (1986).

[170] Dupree v. Moore, 831 F. Supp. 1310, 1312 (1993). See “Court Upholds Ruling on Miss. School Borders,” The Legal Intelligencer, June 11, 1996, p. 6. See also 28 C.F.R. § 51.13(d), (e) (“any change in the boundaries of voting precincts . . . , and [a]ny change in the constituency of an official or the boundaries of a voting unit . . . requires preclearance”).

[171] 500 U.S. 646, 659 (1991).

[172] Id. at 646.

[173] Resolution of the Mississippi State Conference of the NAACP, Aug. 17, 1996.

[174] Greenville Pub. Sch. Dist. v. Western Line Consolidated Sch. Dist., 575 So.2d 956 (Miss. 1991).

[175] “Hattiesburg School Claims Court Victory,” The Clarion-Ledger, June 11, 1996, p. 4B.

[176] Buck Testimony, Hearing Transcript, p. 166.

[177] Buck Interview.

[178] Buck Testimony, Hearing Transcript, pp. 166–67.

[179] Ibid., p. 172.

[180] Mr. Buck testified that “if you start off with a small pie and then you’re splitting it up in five different ways . . . as opposed to having all of those districts combined and consolidated and utilizing the resources that are available to serve everyone and all of the children, I think that would be far more effective.” Mr. Buck argued that when Warren County consolidated with Vicksburg, it led to better facilities and improved education. Ibid., p. 164.

[181] Mr. Buck testified that “in Greenville and Jackson and other fairly large urban areas in Mississippi . . . there’s been migration of people out of the municipality into surrounding rural areas, which also ties us right back into the annexation question . . . and that’s one of the reasons why you have a lot of opposition to the expansion of school district lines along with annexation lines. . . .” Ibid., pp. 171–72.

[182] Municipal judge and attorney Clell Ward stated he was not aware of a single black Mississippi legislator in office who had knowledge that the repeal was part of the Senate bill. According to Mr. Ward, one of the white state senators had inserted the legislation into a large package of repeal laws without the knowledge of any of the black legislators. Ward Interview.

[183] Dupree v. Moore, 519 U.S. 1103 (1997).

[184] See Meredith v. Fair, 305 F.2d 343, 344–45 (5th Cir. 1962), cert. denied, 371 U.S. 828 (1962).

[185] See United States v. Fordice, 505 U.S. 717, 722 (1992).

[186] Ayers v. Fordice, 111 F.3d 1183, 1190, n. 1 (5th Cir. 1997). See also Southern Education Foundation, Miles to Go: A Report On Black Students and Postsecondary Education in the South, Atlanta, GA, 1998, p. A39.

[187] 347 U.S. 483, 495 (1954) (Brown I).

[188] Brown v. Board of Education, 349 U.S. 294, 301 (1955) (Brown II).

[189] United States v. Fordice, 112 S. Ct. 2727, 2732–33 (1992).

[190] The board is responsible for the management and control of the eight public universities at issue in this case. Miss. Code Ann. § 37-101-1 (1996). Its general powers and duties include, inter alia, managing all university property, disbursing funds, establishing standards for admission and graduation, and supervising the functioning of each institution. Id. § 37-101-15 (1996).

[191] Ayers v. Allain, 674 F. Supp. 1523, 1564 (N.D. Miss. 1987).

[192] Ayers v. Allain, 914 F.2d 676, 692 (5th Cir. 1990).

[193] Ayers v. Mabus, 499 U.S. 958 (1991).

[194] United States v. Fordice, 505 U.S. 717, 742–43 (1992).

[195] Id. at 729.

[196] The Court stated: “If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effects—whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system—and such policies are without sound educational justification and can be practically eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system. Such policies run afoul of the Equal Protection Clause, even though the State has abolished the legal requirement that whites and blacks be educated separately and has established racially neutral policies not animated by a discriminatory purpose. Because the standard applied by the District Court did not make these inquires, we hold that the Court of Appeals erred in affirming the District Court’s ruling that the State had brought itself into compliance with the Equal Protection Clause in the operation of its higher education system.” Id. at 731–32 (citations omitted).

[197] Id. at 733.

[198] Ayers v. Fordice, 879 F. Supp. 1419, 1477 (N.D. Miss. 1995), aff’d in part, rev’d in part, remanded, 111 F.3d 1183 (5th Cir. 1997), cert. denied, 118 S. Ct. 871 (1998).

[199] The numbers of blacks or whites “enrolled” in a particular institution do not always convey a complete picture of how much integration is taking place on the campus. For example, Dr. William Sutton, president of historically black Mississippi Valley State University, reported that approximately 60 of MVSU’s 2,200 students are white. He pointed out, however, that only 15 or 18 of those white students are on the main campus at Itta Bena; the rest are taking classes at a new off-site campus located several miles away in Greenwood. Sutton Testimony, Hearing Transcript, pp. 227, 232.

[200] Southern Education Foundation, Miles to Go, p. A36.

[201] D. Hawkins, “Fordice Decision: Federal Judge Rejects Closing of Mississippi Black College in Desegregation Plan,” Black Issues In Higher Education, Mar. 23, 1995, p. 6. The June 1998 order of the district court, following a status conference on the Fordice case, states that “the implementation and accreditation of bachelor’s and master’s programs in Business at Jackson State University has been achieved. Implementation of a Ph.D. program in Social Work at Jackson State University has been approved by the board and is in the process of being implemented.” The court order also states that studies have been conducted by the board “on whether to implement certain programs at Jackson State University, including Engineering, Law and Pharmacy. . . .” Ayers v. Fordice, No. 4:75CV009-B-O, at 2–3 (N.D. Miss. June 4, 1998) (unpublished order).

[202] The Mississippi commissioner of higher education reported that “[a]ll of those programs have been approved by the Board and were funded this year at the rate of two million dollars for all six programs, to begin the first year of implementation.” Dr. Thomas Layzell, Mississippi commissioner of higher education, Testimony, Hearing Transcript, p. 220.

[203] Sutton Testimony, Hearing Transcript, pp. 227–28. The June 1998 order of the district court, following a status conference on the Fordice case, directed the board “to conduct a study of programs that can be implemented at Mississippi Valley State University which will attract other-race students and so advise the court in a reasonable time. . . .” Ayers v. Fordice, No. 4:75CV009-B-O, at 2–3 (N.D. Miss. June 4, 1998).

[204] James D. Anderson, The Education of Blacks in the South, 1860–1935 (Chapel Hill, NC: University of North Carolina Press, 1988).

[205] James D. Anderson, professor of education, University of Illinois, telephone interview, July 25, 1996 (hereafter cited as Anderson Interview). Another witness testified that a leading cause of the “dual structure” of the Delta is the “de jure problems in the past.” Robert Davis Testimony, Hearing Transcript, p. 284.

[206] Anderson Interview.

[207] F. Kent Wyatt, president, Delta State University, telephone interview, July 29, 1996 (hereafter cited as Wyatt Interview).

[208] Robert Davis, “The Quest for Equal Education in Mississippi: The Implications of United States v. Fordice,” Mississippi Law Journal, vol. 62 (1993), p. 405.

[209] Robert N. Davis, associate professor of law, University of Mississippi, telephone interview, July 25, 1996 (hereafter cited as Davis Interview).

[210] In Podberesky v. Kirwan, 38 F.3d 147, 159–62 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995) the appeals court rejected a University of Maryland minority scholarship program, in part because the court concluded the program was not designed carefully enough to serve its stated remedial purposes.

[211] Ronald Smothers, “Mississippi Mellows on Issue of Bias in State Universities,” The New York Times, Mar. 13, 1995, p. A14 (hereafter cited as Smothers, “Bias in State Universities”).

[212] Ibid.

[213] Thomas Layzell, Mississippi commissioner of higher education, telephone interview, Aug. 6, 1996 (hereafter cited as Layzell Interview).

[214] Davis, “Quest for Equal Education in Mississippi,” p. 496.

[215] Anderson Interview. Of course, the historically white institutions do have a number of scholarships for minorities; in fact, one College Board member has argued that the historically white institutions are able to attract the “best and the brightest” minority students by offering them scholarships to attend. J.P. Mills, member of the Mississippi College Board, telephone interview, July 1, 1996 (hereafter cited as Mills Interview).

[216] Ronald Roach and Cheryl D. Fields, “Mississippi Churning,” Black Issues in Higher Education, May 15, 1997, p. 14.

[217] However, some people, including Fordice plaintiff attorney Alvin O. Chambliss Jr. and Joyce Payne, director of the public black college office of the National Association of State Universities and Land Grant Colleges, have criticized the judge for failing to give Mississippi Valley State more resources to attract white students and avoid closing in the future. See Smothers, “Bias in State Universities,” p. A14.

[218] Ayers v. Fordice, 879 F. Supp. 1419, 1495 (N.D. Miss. 1995).

[219] The primary author of this report is Robert Kronley, senior consultant to the BellSouth Foundation and the Southern Education Foundation (SEF), located in Atlanta, Georgia. The SEF is a public charity committed to developing educational opportunities for minorities and disadvantaged citizens in the South. Robert Kronley, senior consultant, BellSouth Foundation and Southern Education Foundation, Testimony, Hearing Transcript, pp. 268–69; Southern Education Foundation, “Who We Are,” <http://www.sefatl. org/whoweare.htm>. Mr. Kronley is the director of SEF’s initiatives, Educational Opportunity and Postsecondary Desegregation, 1995, and Miles to Go: A Report on Black Students and Postsecondary Education in the South, 1998. A lawyer and educator, Mr. Kronley was previously director of the Southern Center for Studies in Public Policy.

[220] Robert A. Kronley, William A. Butts, and Walter Washington, Transformation Through Collaboration: Desegregating Higher Education in the Mississippi Delta, 1996, p. i (hereafter cited as Kronley, Butts, and Washington, Desegregating Higher Education in the Mississippi Delta).

[221] Layzell Testimony, Hearing Transcript, p. 261.

[222] Sutton Testimony, Hearing Transcript, p. 262.

[223] Davis Testimony, Hearing Transcript, pp. 319–20.

[224] Ibid., p. 320. Of course, there was testimony offered at the Mississippi Delta Hearing arguing that the state education system can compete. Roger Malkin, chairman and CEO of Mississippi’s Delta and Pine Land Co., the world’s leading cotton seed grading technology company, testified that his firm employs graduates of the local universities, especially Mississippi State, who meet the standards of his successful high technology company. Malkin Testimony, Hearing Transcript, p. 159.

[225] Davis, “Quest for Equal Education in Mississippi,” p. 494.

[226] Davis Testimony, Hearing Transcript, p. 266.

[227] Ibid., p. 267.

[228] Ibid., p. 305.

[229] Ibid., p. 280.

[230] Ibid., p. 268.

[231] Ibid., p. 280.

[232] Ibid., p. 281.

[233] Ibid.

[234] Mary Frances Berry, Statement, Hearing Transcript, pp. 252–53.

[235] Ibid., pp. 253, 258–59.

[236] Layzell Testimony, Hearing Transcript, p. 253.

[237] Ibid., p. 254.

[238] Ibid. A review of studies of black public colleges concludes as follows: “Our empirical analysis suggests that segregative effects notwithstanding, HBCUs are indeed projects that improve social welfare, and rank favorably relative to HWCUs. The formal result derived here also has implications for the proposed remedies in the Fordice case, suggesting that HBCUs have a social value in the sense that in their absence, the stock of human capital would be lower. Where social welfare is an increasing function of output, an economy with HBCUs is better off than one without them. Given that HBCUs provide a boost to the human capital endowments of black college students, the consequences of their closure or merger with HWCUs will be a lower long-run growth rate.” The study goes on to state that “while our results suggest that HBCUs enhance social welfare, they should not be interpreted to suggest that state political jurisdictions should operate and maintain a dual system of separate but equal colleges/universities that perpetuate historical exclusionary and racist practices. If however HBCUs are unique in that they provide a boost to the educational effort of black students, then the choice of state political jurisdictions to operate and maintain HBCUs may have a sound educational justification.” Gregory N. Price, “Black Public Colleges and Universities as Projects: How Do They Rank Relative to White Public Colleges and Universities?” The Review of Black Political Economy, vol. 24, no. 4 (Mar. 22, 1996), p. 65.

[239] Ayers v. Fordice, No. 4:75CV009-B-O, at 1 (N.D. Miss. June 4, 1998).

[240] Hawkins, “Fordice Decision,” p. 6.

[241] Smothers, “Bias in State Universities,” p. A14.

[242] Robert Kronley Testimony, Hearing Transcript, pp. 274–76; see also Kronley, Butts, and Washington, Desegregating Higher Education in the Mississippi Delta, pp. 8–11. The report, requested by the College Board, responds to the federal district court’s directive to the board in its Mar. 10, 1995, Memorandum Opinion and Remedial Decree, to undertake further study of “any available educationally sound alternatives” to the proposed consolidation of Delta State and Mississippi Valley State Universities. Ayers v. Fordice, 879 F. Supp. 1419, 1495 (N.D. Miss. 1995).

[243] Kronley Testimony, Hearing Transcript, pp. 274–75.

[244] Mr. Kronley later stated that while he has determined there would be a “short-term” savings by not consolidating the universities, he has not investigated the “long-term” financial ramifications. Ibid., pp. 322–23.

[245] Ibid., p. 276.

[246] Ibid., p. 295.

[247] Ayers v. Fordice, 879 F. Supp. 1419, 1434 (N.D. Miss. 1995) (citing United States v. Fordice, 505 U.S. 717, 733–34 (1992)).

[248] P. Applebome, “Mississippi’s Black Colleges Fear Equal Admission Standards, Some Say Enrollment Could Be Cut In Half,” The Commercial Appeal, Apr. 28, 1996, p. A5.

[249] A. Kanengiser, “High Court Lets Tougher Admission Rules Stand,” The Clarion-Ledger, December 1995, p. A1. In the same article, Mr. Chambliss said that some people had incorrectly perceived his position on the new admission rules as a desire “to have lower admission standards so black schools remain black enclaves.” “That is not our position,” said Chambliss. Ibid.

[250] Kronley Testimony, Hearing Transcript, p. 317.

[251] Southern Education Foundation, Miles to Go, p. 45.

[252] Ibid.

[253] Ayers v. Fordice, No 4:75CV009-B-O, at 2 (N.D. Miss. June 4, 1998).

[254] Hawkins, “Fordice Decision,” p. 6.

[255] Ibid. Mr. Mills also said that “the real problem is K–12” and that the current system, which is largely in disrepair, has no competitive forces pressing on it, and therefore has become “fat, lethargic, and inefficient.” He notes that private schools in the state charge less than $3,000 in tuition, but the state spends $4,400 on each child; he claims that much of the excess money is “lost on layers of administration.” Mills Interview.

[256] Robert A. Kronley, senior consultant, BellSouth Foundation and Southern Education Foundation, telephone interview, June 26, 1996 (hereafter cited as Kronley Interview). However, this appears to be changing. The state is now moving to link K–12 and higher education through such programs as college discovery programs, teacher training design centers, and summer institutes. In addition, a new state law, the Mississippi Adequate Education Program, states that every school district must receive “sufficient” funds to provide an adequate education. The state will provide an increase of at least 8 percent for education services in every district; the program will start in 1998 and will be phased in over a six-year period. Mississippi will spend about $130 million on this program, which gained approval from the Legislature over the governor’s veto. See Southern Education Foundation, Miles to Go, pp. A35–A36. See also Christopher McEntee, “Mississippi District Inaugurates Bond Program to Enhance Fair School Funding,” The Bond Buyer, Nov. 4, 1997, p. 3.

[257] Wyatt Interview. J.P. Mills, a member of the Mississippi College Board, has noted that the summer remedial programs are designed to give students “every possible chance to be admitted” to one of the state’s universities. Mills Interview.

[258] Davis Interview.

[259] Layzell Testimony, Hearing Transcript, p. 222.

[260] Ibid., pp. 222, 237.

[261] Ibid., p. 222.

[262] It was reported that, for the 1996 summer remedial program, there were two students enrolled at the historically white institution of Delta State and one at the University of Mississippi. At historically black Mississippi Valley State University, 76 students were in the program, 67 of whom completed it successfully. Sutton Testimony, Hearing Transcript, pp. 237–38.

[263] Layzell Testimony, Hearing Transcript, p. 224.

[264] Southern Education Foundation, Miles to Go, p. A35.

[265] Layzell Testimony, Hearing Transcript, p. 223.

[266] However, Thomas Layzell, Mississippi’s commissioner of higher education, said there is enough flexibility in the system that students who do not meet the requirements could be admitted provisionally or after further review. Applebome, “Mississippi’s Black Colleges Fear Equal Admissions Standards,” p. 5A.

[267] D. Hawkins, “Mississippi Mayhem,” Black Issues in Higher Education, Mar. 21, 1996, p. 24.

[268] Applebome, “Mississippi’s Black Colleges Fear Equal Admission Standards,” p. 5A.

[269] See Southern Education Foundation, Miles to Go, p. 45.

[270] Smothers, “Bias in State Universities,” p. A14.

[271] The Southern Education Foundation, located in Atlanta, Georgia, has issued reports on desegregation of higher education in the southern region, including Redeeming the American Promise: Report of the Panel on Educational Opportunity and Postsecondary Desegregation, 1995, and Miles to Go: A Report on Black Students and Postsecondary Education in the South, 1998.

[272] Southern Education Foundation, Redeeming the American Promise, p. 16.

[273] Anderson Interview.

[274] Kronley Testimony, Hearing Transcript, pp. 317–18.

[275] Southern Education Foundation, Miles to Go, p. A35.

[276] Southern Education Foundation, Redeeming the American Promise, p. 33. See also Kronley Testimony, Hearing Transcript, pp. 317–18.

[277] The new admission criteria standardized requirements at all eight universities beginning with applications for admission in the fall of 1996. Ayers v. Fordice, 111 F.3d 1183, 1195 (5th Cir. 1997).

[278] Id. at 1197.

[279] Id.

[280] Id. at 1199–1200.

[281] Id. at 1199. The appeals court also referred to the lower court’s finding that admission of students unprepared to do college level work may result in significant attrition accompanied by unprofitable debt accumulation. Id. at 1198. The appeals court specifically referred to testimony before the lower court: “Defendants’ expert, James Wharton, testified that access to four-year institutions in Louisiana is ‘not meaningful access because we also have tremendous attrition and students get hurt in that attrition.’ Likewise, Hunter Boylan testified that ‘[a]ccess without an opportunity to succeed isn’t really access. If you have an open door it quickly becomes a revolving door.’ ” Id. at 1198–99, n. 31.

[282] Ayers v. Fordice, 111 F.3d 1183, 1201 (5th Cir. 1997).

[283] In 1976, there were 3,506 first-time full-time black freshman enrolled in Mississippi’s public universities, representing 40.5 percent of all freshmen. In 1996, there were 2,750 black freshmen—which represented 38 percent of all freshmen. Southern Education Foundation, Miles to Go, p. 45.

[284] Randal C. Archibold, “The Price of Desegregation,” The New York Times, Apr. 9, 2000, p. 22.

[285] Ibid.

[286] Ayers v. Fordice, No. 4:75CV009-B-O, at 2 (N.D. Miss. June 4, 1998).

[287] Ayers v. Fordice, 111 F.3d 1183, 1201 (5th Cir. 1997).

[288] Id. at 1202.

[289] Ayers v. Fordice, No. 4:75CV009-B-O, at 2 (N.D. Miss. June 4, 1988).

[290] Ayers v. Fordice, 111 F.3d 1183, 1207, n. 47 (5th Cir. 1997).

[291] Id. at 1208 (citing United States v. Fordice, 505 U.S. 717, 736 (1992)) (“Another constitutionally problematic aspect of the State’s use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the minimum ACT score specified for the particular institution, without also resorting to the applicant’s high school grades as an additional factor in predicting college performance”).

[292] Id.

[293] Id.

[294] Id.

[295] Id. (citing Ayers v. Fordice, 879 F. Supp. 1419, 1433–34, n. 28 (N.D. Miss. 1995)).

[296] Id.

[297] Id. at 1208–09 (emphasis added).

[298] Ayers v. Fordice, No. 4:75CV009-B-O, at 3 (N.D. Miss. June 4, 1998) (emphasis added).

[299] Ayers v. Fordice, 111 F.3d 1183, 1214 (5th Cir. 1997).

[300] Ayers v. Fordice, No. 4:75CV009-B-O, at 1–3 (N.D. Miss. June 4, 1998).

[301] Ayers v. Fordice, 111 F.3d 1183, 1213 (5th Cir. 1997). Cf. United States v. Louisiana, 692 F. Supp. 642, 645 (E.D. La. 1988) (“Despite the slight increase in black enrollment statewide, the racial polarization has increased as a whole during the term of the consent decree: the predominantly white institutions had about 2000 fewer black students in 1987 than in 1981, while the predominantly black institutions showed only a negligible increase in white enrollment from around 0.3% in 1981 to around 1.1% in 1987”). According to the three-judge court that reviewed the special master’s final report in the Louisiana case, “[t]he experience of the consent decree confirms that enhancement of [predominantly black institutions] without more simply makes [predominantly black institutions] more attractive to black students, without attracting white students.” United States v. Louisiana, 718 F. Supp. 499, 508 (E.D. La. 1989).

[302] Ayers v. Fordice, 111 F.3d 1183, 1214 (5th Cir. 1997).

[303] Id. at 1223–25.

[304] Id. at 1224.

[305] Id.

[306] Id. U.S. Representative Bennie Thompson, one of the plaintiffs in the Fordice case, had attended both a historically black public institution and a historically white public institution in Mississippi as a graduate student in the 1970s. He later reported that there was a stark difference—“like night and day”—in the quality of campus buildings, libraries, equipment and other facilities between the two schools. Roach and Fields, “Mississippi Churning,” p. 13.

[307] Ayers v. Fordice, 111 F.3d 1183, 1225 (5th Cir. 1997).

[308] Ayers v. Fordice, 111 F.3d 1183, 1225 (5th Cir. 1997), cert. denied, 118 S. Ct. 871 (1998).

[309] Laurie Asseo, “Mississippi Desegregation Appeal Denied,” The Associated Press Online, Jan. 20, 1998, available in LEXIS News Library, AP File.

[310] Ibid.

[311] “Desegregation Case Nearer End in Mississippi as High Court Backs Off,” The Commercial Appeal, Jan. 22, 1998, p. A13.

[312] Ibid.

[313] Ibid.

[314] Randal C. Archibold, “The Price of Desegregation,” The New York Times, Apr. 9, 2000, p. 22.

[315] Ibid.

[316] Ibid.

[317] Roach and Fields, “Mississippi Churning,” pp. 10–11.

[318] Archibold, “The Price of Desegregation.”

[319] 861 F. Supp. 551 (W.D. Tex. 1994) (using separate admissions procedures for blacks and Mexican Americans violates the equal protection clause of the 14th Amendment, because it was not narrowly tailored to achieve compelling state interests since the process prevented any meaningful comparative evaluation among applicants of different races), rev’d in part, remanded, appeal dismissed, 78 F.3d 932 (5th Cir. 1996) (holding law school cannot use race as a factor in law school admissions despite the goal of creating greater diversity, affirmed, remanded for consideration whether plaintiffs would have been admitted in absence of procedures that took into account applicants’ race or ethnicity, and if so, what damages are appropriate), cert. denied, 518 U.S. 1033 (1996), vacated mem., 95 F.3d 53 (5th Cir. 1996), on remand, 999 F. Supp. 872 (W.D. Tex. 1998) (holding that none of the plaintiffs would have been admitted under admission system that took no account of race or ethnicity).

[320] The Texas case stems from a lawsuit filed in 1992 by Cheryl Hopwood and three other white law school applicants at the University of Texas. They asserted they were denied admission because affirmative action policies gave unfair preferences to less-qualified minority applicants. In March 1996, the three-judge panel ruled not only that the law school’s admissions policies were illegal, but also called into question the U.S. Supreme Court’s ruling in Regents of University of California v. Bakke, 438 U.S. 265 (1978), a reverse discrimination case. The Bakke decision said schools could not adopt racial quotas but race could be used as one of several factors in admissions. The Fifth Circuit ruling in Hopwood, on the other hand, said the law school “may not use race as a factor” in admissions, “even for the wholesome purpose of correcting perceived racial imbalance in the student body.” But the decisive language of the ruling has not been affirmed elsewhere. Instead, the Supreme Court let the ruling stand, leaving it in effect only in the Fifth Circuit. Even the two other states covered by the Fifth Circuit—Louisiana and Mississippi—are under court orders to further desegregate their colleges and universities and have not adopted the strict interpretation of Hopwood being used in Texas. Peter Applebome, “Texas Is Told to Keep Affirmative Action In Universities or Risk Losing Federal Aid,” The New York Times, Mar. 26, 1997, p. A11. See also Hopwood v. Texas, 78 F.3d 932, 962 (5th Cir. 1996).

[321] Peter Applebome, “In Shift, U.S. Tells Texas It Can’t Ignore Court Ruling Barring Bias in College Admissions.” The New York Times, Apr. 15, 1997, p. A20. There have been mixed signals, both at the national and state levels, which reflect the uncertainty about the future of affirmative action. The month following the declaration by the Texas attorney general that Texas public universities would employ race-neutral criteria in administering their internal policies, Norma Cantú, head of the Office for Civil Rights at the U.S. Department of Education, issued a letter warning Texas state officials that they were required to maintain their affirmative action programs or risk losing federal higher education money. In a Mar. 18, 1997 letter, the Office for Civil Rights told Texas officials that they must aggressively take steps like affirmative action to attract minorities or risk losing $500 million in student scholarships, work-study programs, and research grants. Directly contradicting the Texas attorney general’s directive, Ms. Cantú argued that, under the Fordice ruling, Texas is required to continue to root out current discriminatory practices and the vestiges of past discrimination and make its campuses more accessible to minorities. Not only can race be used as a factor in admissions, said Cantú, but universities also “have a clear legal obligation to do so to remedy current discrimination or the effects of past discrimination.” Ibid. But then the acting solicitor general of the United States, Walter Dellinger, wrote an unusual retort to the Education Department, saying that the Hopwood case banning affirmative action was the law in Texas. Some experts suggest that such mixed signals make it increasingly important for the Supreme Court to clarify its views on when—and in what forms—affirmative action is permissible. Ms. Cantú, insisting that she never advised Texas officials that Texas must maintain affirmative action programs or risk losing federal financial support for higher education, sent a subsequent letter (Apr. 11, 1997) to Texas State Senator Rodney Ellis to “ensure that recent mischaracterizations of my [Mar. 18, 1997] letter do not lead to a misunderstanding. . . .”] Michale Sharlot, dean of the University of Texas Law School, said, “It’s enormously important, not just in the selfish view of Texas, which is just being transformed by following the Hopwood decision, but in terms of how important the question is for the whole country.” Ibid.

[322] Roach and Fields, “Mississippi Churning,” p. 11. Chambliss makes the following comparison between the Hopwood and Fordice (which Chambliss refers to by its original name, Ayers) cases: Hopwood cut off historical evidence. Ayers expanded the concept of traceability. Hopwood held that race cannot be used to remedy imbalances. Ayers said that it could be used in just about every context. Hopwood threatened punitive damages. Ayers excluded their use. Finally, Ayers is predicated on a U.S. Supreme Court case, where Hopwood v. Texas is based on no single Supreme Court case. Hopwood is effectively overruled in the Fifth Circuit because the last decision governs. This is not to say that a district court cannot go with Hopwood as precedent. Until the U.S. Supreme Court or the Fifth Circuit en banc resolves the conflict, courts have a choice. Ayers is predicated on a U.S. Supreme Court decision that applies nationally. This gives it much more weight.” Ibid., p. 32.

[323] Ibid., p. 32.

[324] Alvin O. Chambliss Jr., “Hopwood and Ayers v. Fordice: The Beginning of the End?” Black Issues in Higher Education, May 15, 1997, p. 32.

[325] Ronald Roach, “Hopwood or Fordice: Which Controls in the Fifth Circuit?” Black Issues in Higher Education, May 15, 1997, p. 14, n. 6.

[326] 438 U.S. 265 (1978).

[327] Applebome, “Texas Is Told to Keep Affirmative Action In Universities or Risk Losing Federal Aid,” p. 11.

[328] Ibid.

[329] As for the 15 community colleges located throughout the state, they were “put on the sideline” of the litigation almost from the beginning. However, the original Fordice ruling directed that there be a study of the admissions requirements of the community college system in order to ensure open admissions and accessibility for interested students. Dr. Olon E. Ray, executive director, Mississippi State Board for Community and Junior Colleges, telephone interview, May 29, 1997 (hereafter cited as Ray Interview).

[330] Cheney Testimony, Hearing Transcript, p. 1182. The Public Education Forum is funded by businesses throughout Mississippi to provide business involvement in education policy and legislation. Ibid.

[331] Ray Interview.

[332] Ibid.

[333] Ibid.

[334] Dr. Thomas Layzell, Mississippi commissioner of higher education, believes that the state’s community colleges are “the major provider of developmental or remedial education in the higher education system.” Layzell Testimony, Hearing Transcript, p. 225.

[335] While he did not present exact figures, Dr. Sutton argued that the transfer rate among minorities is lower than the transfer rate for nonminorities. He said that a contributing factor to such an outcome is that minority students are disproportionately represented in nonacademic tracks within the community college system. At one point, Dr. Sutton quipped that “the transfer rate is very high for the very good athletes.” Sutton Testimony, Hearing Transcript, p. 243.

[336] Layzell Testimony, Hearing Transcript, p. 225.

[337] Ray Interview. While the transfer rate from the community colleges to the universities is low, those students who make the transition appear to perform nearly as well academically as students who enroll directly from high school into one of the eight universities. Data have been collected by Dr. Ray that compare “community college transfer seniors” with “native seniors” at Delta State University, Mississippi State University, University of Mississippi, and the University of Southern Mississippi. Data are on file at the U.S. Commission on Civil Rights, Washington, DC.

[338] Ray Interview.

[339] In Mississippi, the per-year tuition cost at a community college is approximately one-half the per-year tuition cost at a four-year university.

[340] “Nontraditional” refers to older students and students, both white and black, “whose families and whose cultural values typically do not send them to college.” Ray Interview.

[341] Dr. Ray emphasized how accepting and supportive the community college environment can be. He pointed out that his own parents had dropped out of school—his father after the third grade—and that community colleges provided his family and other “disenfranchised” people with a nonthreatening introduction to higher education. Dr. Ray said his family found community colleges to be “more accepting and supporting. . . . It’s not just accepting; it’s what they do for students once they get there. People who need to feel OK, who need to feel the level of advice and support from people rather than a more impersonal environment on a larger, more complex campus. . . . What we do well is we invite people to come and to succeed.” Ibid.

[342] Ibid.

[343] Ann Homer Cook, education consultant, telephone interview, July 18, 1996. However, Dr. William W. Sutton, president of Mississippi Valley State University, argued that the “fact that black colleges are predominantly black has nothing to do with black people making that decision . . . they never segregated and discriminated . . . the de jure system provided that. . . .” Sutton Interview.

[344] Sutton Interview.

[345] Ibid.

[346] Wyatt Interview.

[347] Ibid. Roger Malkin, chairman and CEO, Delta and Pine Land Co., argues the gaming industry, while generating significant state revenue, has had a negative impact on Mississippi’s low-income citizens. “For every new casino built, there’s a new pawn shop that goes up across the street,” he said. Malkin Interview.

[348] Ray Interview.

[349] Ibid.

[350] Kronley Testimony, Hearing Transcript, p. 291.

[351] Ibid., p. 292.

[352] Ibid., p. 301.

[353] Kronley testified that “whether [the school is] 82 percent black or 64 percent black or 92 percent white. Just that doesn’t matter. The question is choice.” Ibid., p. 312.

[354] Ibid., pp. 310–12.

[355] Ibid., p. 312.

[356] Ibid., p. 308.

[357] Ibid., p. 311.

[358] Historically black institutions include Jackson State University, Mississippi Valley State University, and Alcorn State University. Historically white institutions include the University of Mississippi, Mississippi State University, Mississippi University for Women, University of Southern Mississippi, and Delta State University.

[359] Ray Interview.

[360] Ibid.

[361] Ibid.

[362] Leroy E. Morganti Testimony, Hearing Transcript, p. 251.

[363] Anderson Interview.

[364] The Fordice decision also brought to the surface a longstanding paradox of the desegregation movement in higher education: the possibility that historically black colleges and universities—the very institutions that provided opportunities for blacks during times of segregation—might be sacrificed in the name of desegregation. In this context, the parallel with public schools is instructive. In elementary and secondary education, federal courts have long emphasized that the burden of remedying segregation should not be placed disproportionately on the minority students who are its victims. See Southern Education Foundation, Redeeming the American Promise, p. 14.

[365] Anderson Interview.

[366] Ibid.

[367] Davis Interview.

[368] Sutton Testimony, Hearing Transcript, p. 250.

[369] Dr. Clinton Bristow Jr., president of Alcorn State University, concurred with this view. He said that race relations statewide are tenuous. Dr. Bristow also stated the recent appointment by Governor Fordice of four white males to fill vacancies on the Mississippi College Board has created a situation that is racially contentious and adversarial. Dr. Bristow argues that the board needs to be representative of the entire college population in the state—black and white. Dr. Clinton Bristow Jr., president, Alcorn State University, telephone interview, July 24, 1996.

[370] Anderson Interview. Associate Professor Robert N. Davis testified that African Americans often attend historically black colleges and universities because such schools are “perceived to be a more supportive environment. . . .” He also commended administrators of the University of Mississippi for their willingness to review certain university symbols—“like the rebel, like Dixie being played”—that some members of the university community find offensive. Davis Testimony, Hearing Transcript, pp. 285–86.

[371] Morganti Testimony, Hearing Transcript, p. 216.

[372] Sutton Testimony, Hearing Transcript, pp. 249–50.

[373] Davis Testimony, Hearing Transcript, p. 285.

[374] Ibid., pp. 287–88.

[375] Ibid., pp. 288–89. Professor Davis, when asked near the conclusion of his testimony whether Mississippi was on the right path to providing equality of opportunity at its colleges and universities, responded, “A resounding no, absolutely.” Ibid., p. 289.

[376] Kronley Testimony, Hearing Transcript, p. 303 (emphasis added).

[377] Roach and Fields, “Mississippi Churning,” p. 14.