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TITLE Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination. Volume VII: The Mississippi Delta Report. INSTITUTION Commission on Civil Rights, Washington, DC. PUB DATE 2001-02-00 NOTE 125p.; Initially drafted by Maxine G. Sharpe, Marlissa Briggett, Deborah A. Reid, and Peter Reilly. For Volume I, see ED 359 294; for Volume III, see ED 407 451; and for a related Senate hearing, see ED 407 450. PUB TYPE Reports - Descriptive (141) EDRS PRICE MF01/PC05 Plus Postage. DESCRIPTORS Blacks; Elementary Secondary Education; Employment; Equal Education; Equal Opportunities (Jobs); Family Income; Farmers; Higher Education; Political Issues; *Poverty; Public Education; *Racial Bias; *Racial Discrimination; Socioeconomic Status; *Voting Rights IDENTIFIERS *Mississippi Delta; Small Farms
ABSTRACT This report examines underlying causes of racial and ethnic tensions in the Mississippi Delta. It is based on sworn testimony from a public hearing, subpoenaed documents received by the U.S. Commission on Civil Rights, and legal research. Data are provided on: equality of economic opportunity (racial factors and economic opportunity, agriculture, and black Delta farmers); race and public education; and voting rights and political representation. Significant racial disparities exist in the socioeconomic conditions of blacks and whites. Black farmers have unequal access to technical support and financial assistance. Nearly half of the lowest ranking school districts are in the Delta. Minority students are over-represented in special education. Teacher shortages exist throughout Mississippi, particularly in the poorest districts with the most minority students. Since Mississippi adopted new admissions standards by equalizing admissions requirements at four-year institutions, fewer black students have qualified for unconditional admission. Minority political participation in Mississippi has increased substantially since passage of the Voting Rights Act. Black voter registration and voting lag behind that of white citizens. Recommendations for each of the study's findings are presented. Two , appendixes describe Mississippi Delta county supervisors and black elected officials on municipal governing bodies in Mississippi. (Contains 17 tables.) (SM)
Reproductions supplied by EDRS are the best that can be made from the original document. LC)
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U.S. DEPARTMENT OF EDUCATION Office ot Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) 5/Thisdocument has been reproduced as received from the person or organization originating it. Minor changes have been Made to improve reproduction quality.
Points of view or opinions stated in this document do not necessarily represent official OERI position or policy.
February 2001 A Report of the United States Commission on Civil Rights
BEST COPY AVAILABLE 0 U.S. Commission on Civii Rights The U.S. Commission on Civil Rights is an independent, bipartisan agency first established by Congress in 1957 and reestablished in 1983. It is directed to:
a Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices.
o Study and collect informatiod relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in theadministration of justice.
o Appraise Federal laws and phlicies with respect to discrimination or denial of equal protection of the laws becauA of race, color, religion, sex, age, disability, or national origin, or in the administration of justice.
a Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the lawg because of race, color, religion, sex, age, disability, or national origin.
Submit reports, findings, and recommendations to the President and Congress.
o Issue public service announcements to discourage discrimination or denial of equal protection of the laws.
Members of the Commission Mary Frances Berry, Chairperson Cruz Reynoso, Vice Chairperson Christopher F. Edley, Jr. Yvonne Y. Lee Elsie M. Meeks Russell G. Redenbaugh Abigail Thernstrom Victoria Wilson
Les Jin, Staff Director
This report is available on diskette in ASCII and WordPerfect 5.1 for persons with visual impairments. Please call (202) 376-8110. Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination
Volume VII: The Mississippi Delta Report
4 Letter of Transmittal
The President The President of the Senate The Speaker of the House of Representatives
Sirs: The United States Commission on Civil Rights transmits this report to you pursuant to P.L.103-419. It is the product of a three-day fact-finding hearing, sworn testimonies of nu- merous witnesses, subpoenaed data, and research. The Mississippi Delta Report is the seventh volume in a series of Commission reports on Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimina- tion. The report examines underlying causes of racial and ethnic tensions in the Mississippi Delta, focusing on the areas of equality of economic opportunity, public education, and voting rights. Our recommendations are directed to the states of Mississippi, Louisiana, and Arkansas, and the federal government. With respect to matters under federal jurisdiction, the Commis- sion recommends that the U.S. Department of Agricultare should thoroughly investigate and resolve outstanding complaints of discriminatory treatment at local FSA offices. The agency should also work with other governmental entities to examine lending practices at area banks in rural areas to determine, document, and alleviate discriminatory lending practices, as well as institutional barriers that contribute to lengthy loan approvalmethods. Further, the agency should examine legislative initiatives which currently exist that contribute to farm foreclosure and prevent farmers from reducing their farm loan debt. The Commission also strongly recommends that the USDA resolve the backlog of civil rights complaints through the most expedient, equitable, and efficient mechanisms. The institutional factors that created the backlog should be investigated and eliminated. Finally, the Commission recommends that the USDA fully act upon its February 27, 1997, commitment to ensure that its staff is adequately trained and its complaint processing pro- cedures are adequately implemented. The Commission further recommends that the U.S. Department of Education increase its scrutiny of educational disparities in the Delta and provide adequate avenues for parents, teachers, and other concerned parties to participate in monitoring and evaluation processes. The Department should specifically ensure that nondiscriminatory polices and procedures are followed with regard to assignments to special educationclasses and disciplinary actions. The Department should require all school districts to provide civil rights compliance data on these assignments and actions. Among other recommendations, the Commission urges the Congress to increase funding for the civil rights enforcement activities for the federal agencies investigating discrimina- tion in the Mississippi Delta, to enact legislation to increase economic development in the Delta, and amend the Census Act to allow the use of statistical sampling for apportionment
ia
5 purposes. We urge the executive and legislative branches of government to act upon and im- plement the recommendations in this report, and to move forward with policies designed to meet the changing needs of America's ethnically and racially diverse communities. The Com- mission hopes that this report will be a useful reference in the formulation of that strategy.
Respectfully, For the Commissioners,
Mary Frances Berry Chairperson
iv Acknowledgments
The hearing was organized by attorney-advisors Conner Ball,* Marlissa Briggett,* Deb- orah A. Reid, Peter Reilly, Miguel A. Sapp,* Maxine G. Sharpe,* and Michelle Yu,* under the general supervision of General Counsel Stephanie Y. Moore and Deputy General Counsel Edward A. Hai les, Jr. The Commission also appreciates the assistance provided by Eileen Rudert, S. Bernice Rhodes,* and Pamela Moye in preparing for the hearing. The report was initially drafted by team leader Maxine G. Sharpe and attorney-advisors Marlissa Briggett, Deborah A. Reid, and Peter Reilly under the general supervision of Gen- eral Counsel Stephanie Y. Moore. Additional assistance was provided in the final stages of the project by Kim Ball, Erik Brown,* Sicilia Chinn,* Joseph Manalili,* Joyce Smith, and Christopher Yianilos,* under the general supervision of Acting General Counsel Edward A. Hai les, Jr. Editorial policy review was performed by Robert G. Anthony, Ki-Taek Chun, and Betty Edmiston. The report was prepared for publication by Dawn Sweet.
* No longer with the Commission
v Contents
Preface
1. Equality of Economic Opportunity 1 Race and the Economy of the Delta 1 Socioeconomic Conditions 1 Mississippi 1 Arkansas 2 Louisiana 3 Employment 4 Housing 9 Strategies to Improve Economic Opportunities 10 Local Business and Commercial Interests 10 Community-Based Nonprofit and Self-Help Organizations 12 National Programs and Policies 13 The New Markets Initiative 16 Economic Opportunity, Agriculture, and Black Delta Farmers 17 USDA's Role in Civil Rights Enforcement and Economic and TechnicalSupport 19 Land Grant Programs 20 Cooperative Extension Service 22 Farmers Home Administration 24 Lending Difficulties and Loan Debt 25 Factors Contributing to the Lack of Black-Owned Farms 27 Allegations of Discrimination at Local USDA Farm Offices 31 Lack of Enforcement of Civil Rights Laws 32 Backlog of Complaints Filed Against the USDA 33 Inefficiencies in USDA's Complaint Process 34 Inadequate Outreach and Technical Training 34 Conclusion 35
2. Race and the Public Education System in Mississippi 36 Elementary and Secondary Education 36 Background 36 Quality of Education 37 Funding, Resources, and Equal Opportunity 40 Title I of the Elementary and Secondary Education Act 40 Mississippi Teachers 41 Mississippi Teaching Corps 42 Mississippi Critical Teacher Shortage Act of 1998 42 Desegregation of the Public Schools 44 The Link between Community Leadership, Successful Schools, andIntegration 46 Resegregation of the Public Schools 47 Tracking 49 Special Education 49 Alternative Schools 50 Moore v. Dupree 51 Higher Education in MississippiU.S. v. Fordice 53 Background 53 Implementation of U.S. v. Fordice 54 Scholarships Targeting White Students to Attend Historically BlackSchools 55
vii School Closings and Mergers 56 Increased Admissions Standards for Historically Black Schools 59 Summer Remedial Programs for First-Year College Students 61 The Appeal of U.S. v. Fordice 63 Admissions Polices and Practices 63 Elimination of Remedial Courses 64 Scholarship Policies 64 The Merger of Mississippi Valley State and Delta State 65 Funding Analysis 65 U.S. Supreme Court Rejects Further Review 66 Hopwood or FordiceWhich Controls? 67 Community Colleges 69 Race Relations and Desegregation 71
3. Voting Rights and Political Representation in the Mississippi Delta 76 Voting Rights Legislation and Litigation 76 Reconstruction 76 -Legislation Prior to 1965 77 The Voting Rights Act 79 1982 Amendments to the Voting Rights Act 82 Challenges to Majority-Minority Districts 84 History of Voting Rights in Mississippi 86 Current Political Representation in Mississippi 91 Racial Bloc Voting 91 Barriers to Black Political Participation 93 Impact of Black Political Power in Mississippi 95 National Voter Registration Act 97
4. Findings and Recommendations 101
viii Appendices A Mississippi Delta County Supervisors 111 B Black Elected Officials on Municipal Governing Bodies in Mississippi 112
Tables 1.1 Black Population for Selected Mississippi Counties 1 1.2Families below Poverty Level and Unemployed for SelectedMississippi Counties 2 1.3Families below Poverty Level by Race for Selected Mississippi Counties 2 1.4Unemployment Rates by Race for Selected Mississippi Counties 2 1.5Black Population for Selected Arkansas Counties 2 1.6Families below Poverty Level and Unemployed for Selected ArkansasCounties 3 1.7Unemployment and Family Poverty Rates by Race for Selected ArkansasCounties 3 1.8Black Population for Selected Louisiana Parishes 3 1.9Unemployment and Family Poverty Rates by Race for Selected LouisianaParishes 3 1.10 Employment in Mississippi Casinos, June 1997 5 1.11 Washington County (Mississippi) Employment andWelfare Statistics 9 1.12 FSA County Committee Members by Race, Sex, andEthnicity, 1996: Southeast Region of the United States 32 2.1Top Ten Performing Mississippi School Districts 39 2.2Bottom Ten Performing Mississippi School Districts 39 2.3Percentage of Black and White Children in Mississippi Delta and Peripheral Delta Public Schools 48 3.1Voting and Family Income in the 1994 Election 94 3.2Voting and Educational Attainment in the 1996 Election 94
ix
1 0 Preface
Despite the symbolic gestures of fairness, decency and respect [that we are only beginning] to practice in the American South, the quality of life [in the Mississippi Delta]... is still compromised by our ra- cial preoccupation....[I]t is not sufficient merely to listen and report, but we must think of doing something that will ... finally ... resolve what seems to be a historical and endless problem in this country.'
These words highlighted the enduring challenge before the Commission as it began its public hearing in the Mississippi Delta. This report is based on sworn testimony from that hearing and subpoenaed documents received by the U.S. Commission on Civil Rights ina three-day hearing in Greenville, Mississippi, on March 6-8, 1997, as well as legal research and analysis. The Mississippi Delta hearing was the sixth in a series of hearings convened by the Commission as part of its nationwide project, Racial and Ethnic Tensions in American Communities: Poverty, Inequality, and Discrimination, examining the factors underlying in- creased racial and ethnic tensions in the United States and developing policies to alleviate such tensions. Earlier hearings were held in the Mount Pleasant neighborhood of Washing- ton, D.C. (January 1992); Washington, D.C. (May 1992); Los Angeles, California (June 1993); New York, New York (September 1994);2 and Miami, Florida (September 1995). The Missis- sippi Delta project was intended to evaluate racial and ethnic tensions in a rural setting. The Mississippi Delta is one of the more cUlturally and geographically distinct regions in the country. Broadly defined, the Delta region begins at the southern portion of Illinois and ends in Louisiana, where the Mississippi River empties into the Gulf of Mexico, and consists of 219 counties and 8.3 million people.3 However, the Delta is more commonly thought ofas "begin[ning] in the lobby of the Peabody Hotel in Memphis and end[ing] on Catfish Row in Vicksburg [Mississippi]."4 Under this definition, the Delta region is about 200 miles long and 70 miles wide at its widest point.5 The Mississippi Delta region also is one of the poorest areas in the country and has been described as a "Third World country in the heart of America."6 The region's current economic problems have been linked to its history of enslavement of a large portion of its population and the legacies of that period, which include Jim Crow laws, racial segregation of Public educational institutions, and disenfranchisement of blacks. Slavery as practiced in the American South was probably as severe as any form of it in recorded history.7 Charles Sack- ett Sydnor, the Southern historian, once wrote, "Mississippi differed from the upper tier of slave States in that it was a buyer of slaves, that it had more of a frontier civilization, and that it was given over almost entirely to cotton planting. A priori, these facts should have made the life of slaves harder and more laborious in this State than in the upper slave States." For slavery to work in a sparsely settled land, white repression had to strain the
Jerry Ward, chairperson, Mississippi Advisory Committee to the U. S. Commission on Civil Rights, statement be- fore the U.S. Commission on Civil Rights, hearing, Greenville, MS, Mar. 6-8, 1997, transcript, p. 19. 2 In July 1995, the Commission held a Documents Hearing in New York, NY, in order to obtain relevant documentary evidence to supplement the record of the September 1994 hearing. 3 Lower Mississippi Delta Development Commission, The Delta Initiatives, May 14, 1990, p. 165. 4 This description was coined by writer David Cohn in 1935. Christina Schwarz and Benjamin Schwarz, "Mississippi Monte Carlo," The Atlantic Monthly, January 1996, p. 67. 6 Ibid. 6 Michael Parfit, "And What Words Shall Describe the Mississippi, Great Father of Rivers," Smithsonian, February 1993, p. 36. 7 Richard Kluger, Simple Justice (New York: Vintage Books, a Division of Random House, 1977) p. 27. 8 Charles S. Sydnor, Slavery in Mississippi (Louisiana State University Press, 1966) p. viii.
11 limits of black endurance. The entire legal apparatus was used by those with power to pro- mote white supremacy and black degradation. It was used to cause one group of human be- ings to receive special, harsh, and disparate treatment so that slave owners could escape work and increase wealth. The late A. Leon Higginbotham Jr. pointed out in Race and the American Legal Process that "the [legal apparatus] sought the total submission of blacks [and]...incorporated into its law-made morality the psychological conceptions Frederick Douglass subsequently described:
Beat and cuff the slave, keep him hungry and spiritless, and he will follow the chain of his master like a dog, but feed and clothe him well, work himmoderately and surround him with physical comfort, and dreams of freedom will intrude ... You mayhurl a man so low beneath the level of his kind, that he loses all just ideas of his natural position, but elevate him a little, and the clear conception of rights rises to life and power, and leads him onward.9 The struggle to overcome the vestiges of slavery has persisted. In the area of the Delta designated as an empowerment zone in 1994, per capita income is one-third the national av- erage, nearly 40 percent of the residents live in public housing,and the high school dropout rate is almost 50 percent.10 Poverty in the Delta affects the region's black residents more se- verely than its white inhabitants, with 54.9 percent of the black population living in poverty, according to 1990 statistics.", The Commission's Mississippi Delta project examined three topics with respect to racial and ethnic tensions. First, the' project addressed economic opportunity in the Delta in an at- tempt to determine the impact of the region's unique history on its current economic condi- tions and on its prospects for future economic development. The second topic was an assess- ment of educational opportunity in Mississippi's public schools. In higher education, the pro- ject addressed the impact of the U.S. Supreme Court decision in United States v. Fordice12 on students, teachers, public institutions of higher learning, and, ultimately, race relations in Mississippi. The Commission also examined primary and secondary education in Mississippi, including such issues as funding practices and policies, student achievement, and ability tracking of minority students. Finally, the project addressed voting rights in the Delta. Spe- cifically, the Commission examined the effect of the Voting Rights Act of 1965 on political representation in the region and the ability to translate political power into economic oppor- tunity. Based on the testimony of witnesses, analysis of subpoenaed documents, and legal re- search, the Commission makes a number of preliminary findings and recommendations which it directs to the attention of the President, Congress, and the American people.
9 A Leon Higginbotham Jr., Race and the American Legal Process (New York: Oxford University Press, 1978) p. 9; Frederick Douglass, Life and Times of Frederick Douglass (New York: Collier Books, 1962), p. 150. 10 "USDA Report Success in Projects in Poor Areas of the South," The New York Beacon, June 26, 1996, p. 32. 11 Larry Doolittle and Jerry Davis, Social and Economic Change in the Mississippi Delta: An Update of PortraitData (Mississippi State University, May 1996), p. 8. 12 505 U.S. 717 (1992). xi
12 CHAPTER 1 Equality of Economic Opportunity
RACE AND THE ECONOMY OF THE DELTA TABLE 1.1 Socioeconomic Conditions Black Population for Selected Mississippi Counties The Lower Mississippi Delta region is an enormous area encompassing portions of seven County % black stategArkansas, Illinois, Kentucky, Louisiana, Bolivar 63 Mississippi,Missouri, and Tennesseebegin- Coahoma 65 ning in southern Illinois and ending at the Holmes 76 southeastern tip of Louisiana. The Delta is com- Humphreys 68 posed of 219 counties and is home to 8.3 million Issaquena 56 people.' A majority of the residents are black Leflore 61 and their current socioeconomic condition, which Quitman 59 Sharkey 66 has been the subject of numerous studies, can Sunflower 64 generally be characterized as one of limited eco- Tallahatchie 58 nomic resources; inadequate employment oppor- Tunica 75 tunities; insufficient decent, affordable housing; Washington 58 and poor quality public schools. The region's Yazoo 53 unique history of slavery, with its debilitating legaciesthe sharecropping system, Jim Crow SOURCE:U.S. Department of Commerce, Bureau of the Census, laws, the concentration of wealth in the hands of County & City Data Book, 1994. a minority white population, the political disen- franchisement of blacks, and the nearly total Each of these majority-black countiesis social segregation of the raceshas been wellmarked by high unemployment and high poverty documented and is generally viewed as the mostrates for all residents. For example, Tunica significant factor in the region's present position County, which has been called "America's Ethio- as among the poorest, if not the poorest, sectionpia" by the Reverend Jesse Jackson,2 has the of the nation based on virtually every socioeco- highest percentage of families living below the nomic measurement. poverty level, 50.5 percent, and the highest un- employment, 17 percent. And, with the exception Mississippi of Humphreys and Yazoo, all selected counties In each of the 13 Mississippi counties selectedare marked by double-digit unemployment rates by the Commission for review, blacks constituteand high family poverty rates, from 27.9 percent the majority of the population, from a low of 53in Washington County, to Tunica's 50.5 percent. percent in Yazoo County, to a high of 76 percent in Holmes County.
1 Lower Mississippi Delta Development Commission, The 2 Christina Schwarz and Benjamin Schwarz, "Mississippi Delta Initiatives: Realizing the Dream...Fulfilling the Monte Carlo; Gambling Industry in Tunica County," The Potential, May 14, 1990, p. 165 (hereafter cited as LMDDC Atlantic Monthly, January 1996, p. 67 (hereafter cited as Report). Schwarz, "Gambling Industry").
1
13 TABLE 1.2 The racial disparity is similarly acute in the region's unemployment rates: although the over- Families below Poverty Level and Unemployed for all unemployment rate in the 13 counties is 12.1 Selected Mississippi Counties percent, the rate for blacks averages 13.3 per- County % below poverty % unemployed cent, while the white rate averages a mere 3.8 Bolivar 35.4 4.3 percent. Coahoma 36.6 13.8 Holmes 45.5 15.8 TABLE 1.4 Humphreys 38.3 7.4 Issaquena 42.9 10.0 Unemployment Rates by Race for Selected Leflore 31.5 11.4 Mississippi Counties Quitman 33.8 11.8 County Black White Sharkey 38.9 10.1 Bolivar 23.4% 3.9% Sunflower 34.7 10.8 Coahoma 21.9 4.7 Tallahatchie 34.5 13.4 Holmes 21.9 3.7 Tunica 50.5 17.0 Humphreys 10.5 2.5 Washington 27.9 12.4 Issaquena 15.3 Yazoo 31.8 9.4 Leflore 18.3 4.3 20.5 3.3 SOURCE: U.S. Department of Commerce, Bureau of the Census, Quitman 1990 Census of Population, Social and Economic Characteristics, Sharkey 16.0 2.9 Mississippi, table 3, p. 7, and table 2, p. 4. Sunflower 16.7 3.5 Tallahatchie 20.0 6.6 However bleak a picture is presented by Tunica 23.8 2.0 these overall statistics, the profile for black resi- Washington 21.1 3.6 dents is even worse. The percentage of black Yazoo 15.9 4.4 families with incomes below the poverty level runs from a low of 46.4 percent in Washington SOURCE: U.S. Department of Commerce, Bureau of the Census, 1990 Census of Population, Social and Economic Characteristics, County to a high of 68 percent in Tunica County. Mississippi, table 8, p. 31, and table 9, p. 34. White families' poverty rates in the selected counties range from Holmes County's 7.2 percent Arkansas to Tallahatchie County's 14.9 percent. Although blacks constitute a majority of the population in only one of the seven selected Ar- TABLE 1.3 kansas counties, 57.4 percent in Chicot, they are a Families below Poverty Level by Race for Selected significant percentage of the population through- Mississippi Counties out the Arkansas Delta region.
County Black families White families TABLE 1.5 Bolivar 53.4% 9.6% Coahoma 58.5 8.2 Black Population for Selected Arkansas Counties Holmes 61.3 7.2 County % black Hurnphreys 55.2 10.8 Arkansas 22.3 Issaquena 62.8 _ Ashley 28.0 Leflore 51.5 8.9 Chicot 57.4 Quitman 51.9 13.8 Desha 43.4 Sharkey 60.2 8.8 Drew 27.9 Sunflower 54.7 7.5 Jefferson* 44.0 Tallahatchie 54.2 14.9 Lincoln 37.1 Tunica 68.0 12.2 Washington 46.4 7.8 Includes the city of Pine Bluff. Yazoo 54.2 11.2 SouRCE: U.S. Department of Commerce,.Bureau of the Census, 1990 Census of Population, Social and Economic Characteristics, Arkansas. SOURCE:U.S. Department of Commerce, Bureau of the Census, 1990 Census Population, Social and Economic Characteristics, Mississippi, table 8, pp. 31-32, and table 9, pp. 34-36.
2 1 4 And while the overall percentage of families America"-the town of Lake Providence.3 Accord- living below the poverty line is lower than the ing to the 1990 census, the median annual income percentage in the Mississippi state portion of the for two-thirds of the town, Block Numbering Area Delta, Arkansas' poverty rates are still in the 9903, is $6,536, the lowest in the nation, whereas double digits in all selected counties. Further, the official national poverty level for a family of the high overall unemployment rates rival thosefour is $14,764.4 In addition, a study found that found in the Mississippi Delta region. in Lake Providence, 70.1 percent of children younger than 18 are living in poverty-the high- TABLE 1.6 est rate in the nation.5 As for overall family pov- erty rates, the black rate is 75.7 percent, while Families below Poverty Level and Unemployed for the rate for white families is 15.2 percent. Selected Arkansas Counties
% families below TABLE 1.8 County poverty level % unemployed Arkansas 15.7 6.2 Black Population for Selected Louisiana Parishes Ashley 17.4 8.5 Parish % black Chicot 18.3 14.0 East Carroll* 64.8 Desha 27.3 11.9 Madison 59.5 Drew 20.2 7.9 Morehouse 41.5 Jefierson 19.3 9.9 Ouachita** 31.0 Lincoln 19.6 8.0 Richland 36.5 West Carroll 16.7 SOURCE: U.S. Department of Commerce, Bureau of the Census, 1990 Census of Population, Social and Economic Characteristics, Arkansas, table 3, p. 7, and table 2, p. 4. Includes Lake Providence. " Includes Monroe. SOURCE:U.S. Department of Commerce, Bureau of the Census, Like Mississippi state, the Arkansas Delta's County & City Data Book, 1994, table B, p. 242. poverty and unemployment rates are higher for its black Population, with both averaging three to five times those for whites. TABLE 1.9 Unemployment and Family Poverty Rates by Race for TABLE 1.7 Selected Louisiana Parishes ok Unemployment and Family Poverty Rates by Race %. for Selected Arkansas Counties black white black white Parish poverty poverty unemployed unemployed East Carroll 71.6 23.3 40.1 4.8 black white black white Madison 58.5 12.3 25.9 5.4 County poverty poverty unemployed unemployed Morehouse 50.8 10.8 22.2 7.3 Arkansas 39.0 10.4 13.3 4.7 Ouachita 48.8 8.7 19.1 6.3 Ashley 39.5 10.4 15.9 6.4 Richland 56.4 .13.9 19.4 6.6 Chicot 54.1 10.9 23.3 6.3 West Carroll 57.1 17.1 17.6 11.1 Desha 51.9 13.3 23.9 4.6
Drew 38.5 13.9 12.9 6.3 SOURCE:U.S. Department of Commerce, Bureau of the Census, Jefferson* 38.3 8.2 17.3 5.7 1990 Census of Population, Social and Economic Characteristics, Lincoln 48.2 11.0 14.6 6.1 Louisiana, table 8, pp. 39-40, and table 9, pp. 43-44.
Includes the city of Pine Bluff. Based on the data presented in tables 1.1-1.9 SOURCE: U.S. Department of Commerce, Bureau of the Census, above, it is clear that the Delta is an economi- 1990 Census of Population, Social and Economic Characteristics, Arkansas, table 8, p. 30, and table 9, p. 33. cally impoverished region for both blacks and
Louisiana 3Jack E. White, "The Poorest Place in America," Time, Aug. The six selected Louisiana parishes include 15,1994, p. 35. East Carroll Parish where, according to Time 4 Ibid. magazine, there was found "The Poorest Place in 5Ibid.
3
1 5 whites. However, the data also reveal that black tinued need for financial support for the region's Delta citizens are the poorest of the poor. Indwindling agricultural business; and the difficul- every section of the region a majority, or nearties small businesses encounter in acquiring majority, of the black residents live in poverty. capital and credit. The main goal of all commu- Such is not the case for a majority of the region'snities, according to the report, is the creation of white residents. jobs,8 a goal that has been identified by public One of, the more comprehensive reports onofficials and theorists alike as a prerequisite for the area was completed by the Lower Mississippithe region's revitalization.0 Delta Development Commission (Delta Commis- sion), established by the U.S. Congress in Octo- Employment ber 1988 to study and make recommendations Although equality of opportunity in agricul- regarding economic conditions in the entireture will be more fully discussed later in this Lower Mississippi region.6 In its 1990 final re- report, it is clear that the sheer number of jobs port on the area's 219 counties and parishes inin agriculture in the Delta has declined signifi- Arkansas, Louisiana, Mississippi, Missouri, Illi-cantly in recent years, beginning with the in- nois, Tennessee, and Kentucky; the Delta Com- creased mechanization of farming in the early mission referred to the region as a place where: part of this century. The research and history do not indicate any reversal of this trend. Accord- jobs are scarce and jobs skills training almost un- ingly, it is unlikely that agriculture will provide known; where infant mortality rates rival those in the the number of new jobs that must be created to Third World; where dropping out of school and teen- revitalize the economy and equalize economic age pregnancy are commonplace; where capital foropportunities for black and white residents. small farmers and small businessesisseverely limited; where good housing and health care are Farm work today has been toppled from its unattainable for many; where industrial technology previous position as the region's primary source lags a decade behind and funds for research and de- of employment to be replaced in part by the cat- velopment barely trickle to colleges and universities; fishindustry.10Seventy-five percent of the where illiteracy reigns as a supreme piece of irony: world's supply of catfish comes from Missis- the region has produced some of the best writers and sippi." It has been reported that the industry is the worst readers in America.7 a $247 million per year business for the state of Mississippil2 and that it generates $1 billion in Another recent study that essentially reiter- ates many of the Delta Commission's findings is a report by the Federal Reserve Bank of St. Louis titled Rural Economic Development: A Pro- 8 Federal Reserve Bank of St. Louis, Rural Economic file of Eight Rural Areas Located in the Lower Development: A Profile of Eight Rural Areas Located in the Mississippi Delta Region. This February 1995 Lower Mississippi Delta Region, February 1995,p.4 report, which profiles eight rural areas of the (hereafter cited as Federal Reserve Report). Lower Mississippi Delta region to assess the 9 "Few would disagree with Herbert Gans, who said that 'the economic development and credit needs of the best remedy for poverty is a large supply of jobs.' " Herbert communities, followed approximately 120 meet- J. Gans, The Urban Villagers: Group and Class in the Life of Italian-Americans (New York: The Free Press, 1982), p. 312, ings with more than 200 residents and represen- as cited in Leif Jensen, "Employment Hardship and Rural tatives of lending institutions and community, Minorities: Theory, Research, and Policy; Special Issue: housing, and small-business development or- Blacks in Rural America," The Review of Black Political Economy, vol. 22, no. 4 (Mar. 22, 1994), p. 125. See also Dick ganizations. Among the many problems noted Kirschten, "The Delta Looks Up," The National Journal, vol. were the region's crisis in housing, particularly 22, no. 40 (Oct. 6, '1990) p. 2382, in which the mayor of its lack of decent, affordable housing for low- Jonestown, MS, a Delta town, states that the town's "biggest income and elderly residents; residents' inability problem is the lack of jobs." to obtain home improvement loans; a severe 10 LMDDC Report, p. 165; Pat Hanna Kuehl, "Destination: shortage of rental housing; a limited amount of Mississippi," The Los Angeles Times, Nov. 5, 1995, p. LIO. land available for new home construction; a con- " Ibid. 12 Wilbur Hawkins, testimony before the U.S. Commission on Civil Rights, hearing, Greenville, MS, Mar. 6-8, 1997, 6 See Pub. L. No. 100-460. transcript,pp.361-62(hereaftercitedasHearing 7 LMDDC Report, p. 6. Transcript).
4 1 6 sales for the entire Delta region.13 However,cial security of other nonpoor blacks in the re- questions have been raised as to whether thisgion may also be threatened due to discrimina- industry is capable of providing a majority of the tion. According to some reports, black attorneys necessary jobs and financial security for the re-in the Delta are subjected to greater scrutiny by gion's impoverished black masses since the de- bar associations than white attorneys, and black mand for catfish has decreased, its employeesphysicians are being denied hospital privileges are mainly seasonal, the jobs provide no bene- due to discrimination by whites.17 fits, and employees receive no profits from the The most recent significant business devel- industry.14 opment, which has inspired hope in both black Lack of financial resources and financial in- and white communities for improved economic security in general are also possibilities for more opportunities,isMississippi's legalizationof prosperous black residents of the Delta. The re-dockside gaming casinos. In 1991, the state en- gion has noted a decline in the number of blackacted the Gaming Control Act legalizing gam- teachers due at least in part to difficulties blacksbling, with the first gaming boat opening on Au- have encountered with teacher certification re-gust 1, 1992.18 Near the time of the Commis- quirements.18 Regardless of the reasons for such sion's Mississippi Delta hearing,18 there were 29 problems, a decline in black teachers is likely to state-regulated casinos and, according to the adversely affect educational attainment by blackstate gambling commission, 13 of the 29 casinos students, which in turn will negatively affect thewere in majority-black counties: 9 in Tunica ability of the region to attract employers whoCounty, 3 in Washington County; and 1 in Coa- desire an educated, literate work force.18 Thishoma County.28 The available employment data potential problem will be more fully addressed in for 27 of the 29 casinos at that time is shown in the education portion of this report. The finan- table 1.10.
TABLE 1.10 13 Becky Gillette, "Land of Cotton and Catfish Seeking Healthy Diversity From Other Types of Development," Mis- Employment in Mississippi Casinos, June 1997 sissippi Business Journal, vol. 20, no. 20 (May 18, 1998), p. 1 (hereafter cited as Gillette, "Diversity From Other Types of Gender Race Development" ). 45.5% male 56.3% white 14 Hawkins Testimony, Hearing Transcript, pp. 361-62. See 54.5% female 39.4% black also James C. Cobb, The Most Southern Place on Earth; The 2.4% Asian [American] Mississippi Delta and the Roots of Southern Identity (Oxford University Press,1992), pp. 330-32; and Eric Bates, "The 1.5% Hispanic Kill Line," Southern Exposure, vol. 19, no. 3 (Fall 1991), p. 0.3% Native American 23, as cited in Jacqueline Jones, "The Late Twentieth- Century War On the Poor: A View From Distressed Communities Throughout the Nation," Boston College Third SOURCE: Paul A. Harvey, executive director,Mississippi Gaming World Law Journal, vol. 16 (Winter 1996), p. 6. "In the Commission, letter to U.S. Commission on Civil Rights, June 20, 1997. Mississippi Delta . ..in some cases, even new industries hold little promise in the long run for these families. For example, in Indianola [Mississippi], the catfish industry Despite this apparently positive statistical in- depends on a work force that is largely black, female, and formation that tends to support the state gaming poor. However, not only do the fish processing jobs pay little, they are also vulnerable to larger market forces. In 1990, a strike of 900 workers at the Delta Pride plant resulted in 17 John Walker Testimony, Hearing Transcript, pp. 518-20. modest wage increases and better working conditions, but 18 The Clarion-Ledger, Nov. 28, 1995,p. 3B. soon after, the whole industry began to institute cutbacks to 19 According to Mick Lura, chief of staff of the Mississippi counter the effects of a saturated market. This case Gaming Commission, there were 30 licensees as of Sept. 3, illustrates the thread of continuity linking a slave past to a 1999. In February 1999, a new casino, the Beaurivage, postindustrial present; where black women once chopped opened in Biloxi, MS. In July 1999, a new casino, the Isle of and picked cotton for white landowners, they now stand for Capri, opened in Tunica, MS. Two casinos in Greenville, MS, hours and each rip and gut as many as 20,000 fish a day. the Las Vegas Club and the Jubilee were consolidated in Where they once suffered from back-breaking stoop labor, July 1999 (Mick Lura, letter to Mississippi Delta project they now suffer from carpal tunnel syndrome, a crippling team leader Maxine G. Sharpe, Sept. 3, 1999, and telephone hand disease." Ibid. conversation between Mick Lura and Maxine G. Sharpe on 15 Ronald A. Hudson Testimony, Hearing Transcript, pp. Sept. 9, 1999). 538-43. 20 Paul A. Harvey, letter to U.S. Commission on Civil 16 Ibid. Rights, June 20, 1997 (hereafter cited as Harvey Letter).
5 17 commission's contention its work force is repre- orgin, and by occupation.26 At the state level, the sentative of the region's populationboth in Mississippi Gaming Comission keeps, a record of terms of race and genderthe Mississippi Gam- the total number of casino employees, and the ing Commission maintains no data on race orMississippi Employment Security Commission gender for the various jobs within the casinos orprovides labor forcedata.Quarterly survey on the salaries of casino employees by race andinformation from the Mississippi Gaming Corn- gender. It is not the function or the responsi-ission through September 30,2000, showed bility of the Mississippi Gaming Commission,34,263 people were employed by casinos in which is a regulatory law enforcement body, toMississippi.27 request or collect data on equal opportunity em- Casinosinfourcountiesparticipatedin ployment in the casinos. Indeed, there is no re-EEOC's 1999 EEO-1 survey.28 A 1997 population quirement such data be tracked by the statereport by the Mississippi Employment Security gamblingcommission,whichhasnore- Commission indicated approximately 75 percent sponsibility or authority regarding the promo-of the population in the participating counties tion or enforcement of equal employment oppor- was white and 25 percent was nonwhite.23 tunity within the industry.21 Statistical data by race and ethnicity from the The introduction of casinos in MississippiEEO-1 aggregate report revealed: clearly has dramatically increased the number of jobs in the region and has resulted in increased 50.7 percent of casino employees are white. revenue for the state. In the Delta, casino jobs 45.3 percent are black. have coincided with an extraordinary decline in 1.2 percent are Hispanic. overall unemployment rates. Between 1992 and 2.5 percent are Asian American. 1993, Tunica County, currently home to nine 0.4 percent are Native American.30 casinos, has noted a 32.1 percent decrease in its overall unemployment rate, from 13.7 percent to The EEO-1 report also provided statistical 9.3 percent.22 Tunica residents saw a 30.4 per-data by occupation. Occupations were divided cent increase in employment.23 Unemploymentinto nine categories: officials and managers, pro- rates also dropped in counties adjacent to thosefessionals, technicians, sales workers, office and with casinos, suggesting a significant number ofclerical workers, craft workers, operatives, la- new casino employees were residents of theborers, and service workers. Percentages by neighboring counties.24 And, according to the categories are as follows: executive director of the state gaming commis- sion who maintains that the introduction of ca- Whites accounted for 72.9 percent of all offi- sinos has profoundly and positively affected the cials and managers and accounted for 42 per- Delta and its black residents, "anyone who wants a job, can get a job."25 Employment information onMississippi's 28 The Employer Information EEO-1 survey is conducted state-regulated casinos is collected at both the annually pursuant to 42 U.S.C. § 2000e-8(c) (LEXIS through state and federal levels. At the federal level, the 2000 Sess.) and 29 C.F.R. §§ 1602.7-1602.14 (2000). Equal Employment Opportunity Commission 27 Mississippi Gaming Commission Property Data, "Quar- (EEOC)collectsand publishes employment terly Survey Information: July 1, 2006September 30, 2000," information that provides a breakdown of the
6
1 8 cent in all other categories except laborers,that casinos prrivide approximately $2.5 million where they accounted for 26.3 percent.31 per month in revenues to Tunica County alone Blacks,accounted for 24.6 percent of all offi- and that from Auguit 1994 to August 1995 total cials and managers and had the highest con- profits from Tunica casinos were $46.8 million centration-71.2 percent-in thelaborers.per month, more than any other casino in the Another noticeable discrepancy was withinstate." Tunica was also the first market to reach the professionals: blacks accounted for 33.7$60 million in monthly revenue and in August percent, while whites accounted for 65 per- 1995 reported profits of 64.2 million." In 1993, cent.32 US News & World Report listed Mississippi as Hispanids accorinted for 1.4 percent of allfirst in a national ranking of states in economic office and clerical workers and 1.3 percent ofrecovery based primarily on its legalized gam- all craft workers. Their percentages were thebling." lowest in the laborers with 0.5 percent and The question remains whether the introduc- the professionals with 0.4 percent.33 tion of legalized gaming will result in sustain- Asians were highly concentrated in the craft able job growth for a significant percentage of workers, accounting for 4 percent. They were the region's unemployed and impoverished resi- least likely to be professionals and office and dents. Will these jobs offer Delta residents liv- clerical workers-0.9 percent and 0.6 percent,able wages and opportunities for employment respectively.34 advancement in a nondiscriminatory manner? American Indians accounted for less than 1 Will the casinos provide the quantity and quality percent of all employees.35 Their highest con- of jobs that must be created in the Delta in order centration was in the craft workers with 0.5to significantly improve the lives of its citizens? percent. There were no American Indians inBefore the introduction of casinos, significant the professionals and 0.1 percent in theoccupational segregation by race existed in the technicians.36 Delta, with blacks heavily concentrated in lower paying jobs. In Bolivar County, Mississippi, for Apart from employment statistics, there ap-example, as of the 1990 U.S. census, whites were pear to be other financial benefits of legalized52 percent and blacks 48 percent of the total gaming to both the state arid local governments. population of employed persons over the age of The industry has earmarked 7.2 percent of its 16.43 Yet whites held 63 percent of the manage- gross revenues for the state's general fund, andrial positions and 72 percent of the technical and 0.8 percent is allocated to the cities or countiessales positions, while blacks held 74 percent of that have legalized gaming.37 In addition, localthe low-level service jobs and 69 percent of the and private legislation place a 3.2 percent tax onoperator and general laborer positions.44 gaming revenues to benefit local governments The statistical data support the argument for specific public purposes, e.g., education.38that occupational segregation exists in the le- Statewide, in fiscal year 1995, over $144.6 mil-galized gaming industry. Anecdotal evidence lion in revenue went to the state, and over $69also suggests possible problems in this area and, million was allocated to local governments thatin general, with the concept that legalized gam- have legalized gaming.39 It has been reporteding alone represents a viable long-term solution to the economic problems facing the region's 81 Ibid. black population. It has been reported blacks are 32 Ibid. mainly employed in minimum-wage jobs and, as 33 Ibid. 34 Ibid. 4° Derrick Crawford Testimony, Hearing Transcript, p. 556; 36 Indian-owned casinos are not required under 42 U.S.C. § Lee Ragland, "Tunica's Casinos Outrunning the Pack," The 2000e-8(c) to report to the EEOC; therefore, employment Clarion-Ledger, Oct. 2, 1995, p. Al. information on the Indian-owned casino(s) in Mississippi is 41 Ragland, "Tunica's Casinos Outrunning the Pack," p. Al. not included. 42 Sara Collins and Warren Cohen, "How the States Stack 36 Edwards Facsimile, p. 5. Up," US News & World Report, Nov. 8, 1993, p. 66. 37 Harvey Letter. 43 Bureau of the Census, 1990 Census of Population, Social 38 Ibid. and Economic Characteristics, Mississippi, p. 383, table 155. 33 Ibid. 44 Ibid., p. 401, table 156.
7
1 9 a group, have high termination and turnoverofficials on the benefits of gambling, particularly rates.45 for Tunica County, there was also testimony During the Commission's hearing,one wit-from a researcher who maintained his study of ness questioned a Delta casino's decision to hirethe effects of legalized gaming nationwidees- as a casino manager a Bosnian immigrant only tablishes that casinos produce little economic two years in the United States rather than a lo-gain for the communities in which they are lo- cal resident.46 The economic assistance regional cated.5° director for the Mississippi State Department of Clearly, jobs have been created and many Human Services, who formerly servedas thepreviously unemployed blacks have found em- director of the Tunica County Department ofployment in the gaming industry. However, Human Services, disagreed with the conclusionpoorly educated and unskilled residents have reached by the gaming commission executivebeen unable to take advantage of the employ- director that "anyone who wants a job can get a ment opportunities in the gaming industry, job," citing the unavailability of casino employ-which has yet to prove long-term viability and ment for those who are classified as borderlineprofitability. Finally, no mechanism exists to disability cases under Social Security or Sup-ensure that Delta blacks, who obtain employ- plemental Security Income standards.47 Moreover,ment in the industry, will obtain equality ofop- in a region of the country well known for its his-portunity in job placement, working conditions, toricallysociallyconservativeclimate, many and advancement.51 blacks, for religious reasons alone, would rather Job growth has also occurred in other busi- remain unemployed than work in a casino.48 nesssectors.Northwest Mississippiduring Finally, the dramatic financial dividends of1980-1996 saw a 17 percent increase in the legalized gambling are also accompanied by dev-manufacturing employment, while nationwide, astating economic and social consequences, ac-this industry remained basically unchanged,ac- cording to some experts. At its September 1998cording to the director of the Delta Counci1.52 hearing inBiloxi,Mississippi, the NationalAnd although some job growth in the manufac- Gambling Impact Study Commission received turing sector is related to agriculture, much of it testimony regarding the alleged increase in per-is the result of nonagriculture-related new busi- sonal bankruptcies connected to gambling prob-nesses. In Cleveland, Mississippi, for example, lems. Although national surveys show 2 percentBaxter Healthcare produces intravenous solu- of bankruptcies are connected to gambling, re-tions for medical use and Duo-Fast makes nails sults of a study presented at the hearing by theand staples.53 Greenwood, Mississippi, is now National Gambling Impact Study Commissionthe site of Viking Range, which produces kitchen indicated a much greater rate of bankruptciesappliances and Irving Automotive, which manu- related to gambling-21 percentwhen people factures interior parts for Ford and Toyota. In are in close proximity to a casino.43 And al-addition, it was reported in May 1998 Viking though there was testimony from Mississippibegan construction in Itta Bena, Mississippi, of a new $4.1 million facility.54 This growth in manu- facturing jobs, according to some reports, has Walker Testimony, Hearing Transcript, pp. 567-68. See also Andrea Stone, "New Dawn in Mississippi Delta," USA resulted in $924 million in wages in 1996 for Today, May 30, 1997, p.6. Robert Hall, a high school 40,000 employees and a rise in per capita income teacher in Tunica, MS, reported that his students "fall from $6,000 in 1980 to $17,000 in 1996.55 asleep in class after working the overnight shift[s] at Additionally, the designation of the region as minimum-wage casino job [s].';-Ibid. an empowerment zone, according to some re- 46 Walker Testimony, Hearing Transcript, p. 567. 47 Crawford Testimony, Hearing Transcript, pp. 548, 552. 48 Schwarz, "Gambling Industry," statement attributed to 60 Ibid. Witness Crawford. See also John Kifner, "An Oasis of 61 Kifner, "An Oasis of Casinos Lifts a Poor Mississippi Casinos Lifts a Poor Mississippi County," The New York County," p. A20. Schwarz, "Gambling Industry." Times, Oct.4,1996, pp. Al, A20, "a state so socially conservative that it was the last to repeal prohibition, in 52 Gillette, "Diversity From Other Types of Development." 1966." 63 Ibid. 48 Becky Gillette, " 'Mississippi Miracle' Vies With Addiction 64 Ibid. Tales," Mississippi Business Journal, Sept. 21, 1998, p. 1. 55 Ibid.
8 20 ports, has resulted in an increase in nonagricul-,Delta residents with an equal opportunity to ob- ture-related jobs. This designation has resultedtain well-paying, permanent jobs with benefits. in Dollar General's construction of a $38 million distribution center in Indianola,Mississippi, Housing which is expected to employ 500, and has been Whether unemployed, underemployed,or credited with creating additional jobs related toemployed in jobs paying livable wages, Delta the center, including 300 construction-related jobs residents face a crisis in finding decent, afford- and positions in local hotels and restaurants.56 able housing. Generally, housing difficulties can Finally, the July 1998 opening of a Union Pa-be categorized as problems of affordability and cific Railroad terminal in Marion, Arkansas, isqUality. Throughout the entire Lower Missis- expected to result in additional jobs and reve-sippi Delta region, pervasive problems exist in nues to the Delta. According to the Federal Rail- the housing stock, and the housing conditions of road Administrator, the $70 million terminal isthe black population, like other socioeconomic expected to have a "$2 billion impact on the re-indicators, are worse than those of their white gional economy by 2008."57 counterparts.58 In 1990, the median value of all owner-occupied units was $9,282, while the me- TABLE 1 .11 dian value of black owner-occupied units was $5,113.56 Across the region 76 percent of the to- Washington County (Mississippi) Employment and tal owner-occupied units had a median value of Welfare Statistics less than $14,999; among black owner-occupied 1992 1996 units, it was 92 percent.60 There is a lack of stan- average average Change dard housing relative to the needs of low-income, Employment single-parent, and aging households. In the Total jobs 22,941 23,869 +4% Delta region, approximately 57,000 units have Manufacturing jobs 4,690 4,688 -.004% incomplete plumbing, 143,000 are overcrowded, Non-manufacturing jobs 18,251 19,181 +5% and 650,000 units are "cost burdened."61 Of the Service jobs (includes casino jobs) region's 2.2 million units, 792,000 have median 4,921 6,165 +25% rents of $40 per month and more than 860,000 Unemployment rate 12.5 10.2' -2.3 are over 40 years old.62 Welfare The St. Louis Federal Reserve Bank report AFDC cases 3,270 2,708 -17% made similar findings regarding the region's AFDC dollar amount $390,164 $315,728 -19% housing conditions and also found that housing Food stamp households 7,275 6,900 -5% organizations in the region were "few in number Food stamp dollar and small in size."63 In addition, according to the amount $1,453,008 $1,353,329 -7% Federal Reserve, new home construction in the Delta is impeded by developers' reluctance to Most recent moving average; the state has not yet set a final figure build in the region, especially their reluctance to for 1996. build housing that is affordable for lower income SouncE: Mississippi EmploymentSecurityCommission and Mississippi Depadment of Human Services. Addendum Hearing Exhibits, Paul Delta residents.64 Finally, repairs to the region's Artman, mayor, Greenville, MS, Mar. 6, 1997.
59 See generally Jacquelyn W. McCray, project director, Despite statistics showing increases in the "Housing Problems and Solutions in the Lower Mississippi number of jobs in casino- and noncasino-related Delta," Report to the Lower Mississippi Delta Commission, industries, it is questionable whether these new Contract No. DC-00111, Project No. /S:A:7 (University of industries are employing a significant number ofArkansas at Pine Bluff, 1990). impoverished Delta residents, who historically 59 Ibid., pp. 6-7. have been the victims of discrimination, and 69 Ibid. whether these businesses are providing poor 61 Occupants who spend more than 30 percent of their income for housing are "cost burdened"; see generally McCray, "Housing Problems and Solutions." 62 Ibid. 56Ibid. ss Federal Reserve Report, p. 4. 57 "Slater Predicts New Terminal Will Bring Thousands of Jobs to Delta," The Associated Press,Aug. 3, 1998. 64 Ibid., p. 9.
9 many substandard homes are frustrated by own- Historically, one of the most powerful busi- ers' inability to afford home improvement financ- ness organizations in the region has been the ing under conventional interest rates.65 Delta Council, which was formed in 1935 in It is possible that the housing affordabilityStoneville, Mississippi. Among its past accom- and quality problems could be resolved through plishments are persuading the Mississippi State new jobs created by the expanding catfish andLegislature to allocate a majority of state sales legalized gaming industries. However, currenttax revenues from motor fuel to fund a Delta indications are that this is not occurring. Forhighway program, securing funds from the fed- example, in Tunica County property values haveeral government for flood-control projects, and increased 9,900 percent near potential casinohelping local Delta communities expand their development sites, suggesting that. the price ofindustrial-recruitment programs.66 In addition, land for new homes and property taxes may bein previous years the organization, which tradi- beyond the means of most residents, even thosetionally concentrated its efforts on lobbying at with casino jobs.66 There are reports that rents the federal and state levels, succeeded in ob- have skyrocketed, that there are few decent, low- taining federal funds for a number of local Delta cost homes available, and that there is a con-projects, e.g., funds to expand agricultural re- certed effort by some white Delta residents tosearch facilities and weather forecasting services prevent the building of affordable homes for the in Stoneville.70 The council has also been cred- masses.67 One local white Tunica developer hasited with helping to increase the area's manufac- been reported as blaming the local planningturing wages in the 19-county area in which it commission for stalling his efforts to build af-operates, from approximately .$53 million in fordable housing for local blacks because "they 1960 to more than $590 million in 1985.71 De- don't want 'any more houses for black people tospite these accomplishments and the generally live in.' "68 acknowledged power and influence the organiza- tion wields within the region, the Mississippi Strategies to Improve Economic Opportunities Delta Council has not been known as an open, Despite the opinion that some prosperousbroad-based group, and certainly not one in white Deltans have no desire to see their blackwhich black Delta residents have participated. neighborsimprovetheireconomiccircum- One view of the group is that it is "a patrician stances, the seemingly insoluble and intractable group of white planters."72 poverty, the region's historic discrimination, and Another Delta-based business organization its nearly total economic and social separation ofthat apparently is attempting to avoid charges of citizens along racial linesall of which haveelitism and racism is the Arkansas Delta Coun- contributed to the current economic condition ofcil. Founded in 1990, the organization reportedly black Delta residentslocal and national strate-is making a concerted effort to include blacks.73 gies to address the region's immense problemsPledging that it would not receive any govern- have been initiated. ment funds and not issue any reports, the Ar- kansas Delta Council planned to initiate eco- Loca/ Business and Commercial Interests nomic development projects and focus on educa- As the nation moves into a global economytion. The group's first projects included negoti- with an increasing need for advanced techno-ating with trade representatives from Japan to logical initiatives, some members of the Deltaincrease Arkansas catfish exports, seeking pas- business community are undertaking steps tosage of state legislation designed to improve the secure a place for the Delta in this new worldcoordination of the state's catfish and baitfish and, accordingly, transform the fundamentalproducers and processors, and initiating efforts structure of its economy and the lives of all its residents. 69 Rex Nelson, "Mississippi Dreaming: New Arkansas Business Group Looks to Mississippi Delta Council as Model," Arkansas Business, Mar. 11, 1991, p. 22. 65 Ibid., p. 10. 79 Ibid. 66 Schwarz, "Gambling Industry." 71 Ibid. 67 Federal Reserve Report. 72 Ibid. 68 Schwarz, "Gambling Industry." 73 Ibid.
10 22 to establish 10 school-based programs for 4-year-ment ratefrom26percent in1983to5-6per- olds to complement current kindergarten pro- cent in 1995.81 During the same time period, an- grams:74 nual work force income increased from$32mil- Other Delta area business groups, includinglion to$76million, the second largest percentage local chambers of commerce, often in partner-income increase in that period for all counties in ship with nonprofit organizations, have strate- the state.82 gized to bring new businesses to the area, ex- There have been several other recent initia- pand the operations of already existing busi-tives to expand economic opportunities for im- nesses, stimulate and encourage entrepreneurialpoverished Delta residents, including the crea- activities in the black community, and improve tion of small-business development centers83 and the quality of education provided by the publicassisting a community in its application for des- school systems. Among such efforts are those ignation as an empowerment zone.84 initiated by the Chamber of Commerce Indus- In Monroe, Louisiana, which is in Ouachita trialFoundationofClarksdale,Mississippi, Parish, the Chamber of Commerce has taken whose mission is to further economic develop- several steps to improve economic conditions and ment, promote the growth of business activity,reduce racial tensions. According to the Cham- and increase industrial recruitment and reten-ber's president and chief executive officer, dur- tion:78 To that end, the foundation has estab-ing the process of applying for designation as a lished a manufacturers' association, sponsoredfederal empowerment zone, the city held com- job fairs, and entered into partnerships with themunitywide meetings during which more than Coahoma (County) Community CollegeSkill 1,500people of all races and economic levels par- Tech Center and the Delta Partners Initiative ofticipated.88 The city's failure in its bid for desig- Delta State University.78 The foundation also is anation as an empowerment zone damaged race leading organization in the Tri-County Workforcerelations and raised issues of trust and power in Alliance, which strives to create a collaborativethe city. However, its designation as an enter- effort for work force development and education.77 prise zone means that it will receive $3 million In addition, it has created an Industrial Author-for a community development corporation to ity, which owns, manages, maintains and devel- lend money to small businesses to stimulate job ops land in its industrial parks.78 The Chambergrowth. Monroe's Chamber of Commerce also of Commerce, meanwhile, has contracted with thehas facilitateda partnership between local county tourism commission to administer theschools and businesses, identifying the types of commission's activities in an effort to support thejobs that will exist in the future and revamping region's tourism industry, which is viewed as a the schools' curriculum so that local students can vital part of the local economy.78 be qualified for those jobs.88 The Monroe Cham- The executive director of the Washingtonber of Commerce, according to its president and County (Mississippi) Economic Council reported CEO, is sensitive to the issue of diversity and that, through the council, he has worked to bringhas taken steps to include blacks in its programs a number of new businesses into the Winoma,and to introduce blacks to the business commu- Mississippi, area, including a small automobilenity. For example, it has established a Leader- parts manufacturer, two furniture factories, andship Development Program that sets aside one two automobile brake shoe manufacturers.88 Asday per month where selected young to middle- a result of these new businesses, there hasbeenaged Monroe residentsblack and white, male a dramatic decline in the county's unemploy- 81 Ibid. 74 Ibid. 82 Ibid. 75 Ronald A. Hudson Testimony, Hearing Transcript, pp. 83 Ronald A. Hudson, executive director, Clarksdale-Coahoma 493-94. County (MS) Chamber of Commerce, telephone interview, 78 Ibid., pp. 493-95. June 27, 1996. " Ibid., p. 494. 84 Michael Neal, president and chief executive officer, Mon- 78 Ibid., p. 495. roe (LA) Chamber of Commerce, telephone interview,July 23, 1996. 78 Ibid., pp. 495-96. 88 George Harris, executive director, Montgomery County 88 Ibid. (MS) Economic Council, telephone interview, June 26, 1996. 88 Ibid.
11
2 3 and femalealong with Chamber members,ex- jobs in the region and serves as an advocate for amine different issues facing the community, new job creation." e.g., the city's political structure and business In southeastern Arkansas, another organiza- concerns. The yearlong program also includes a tion operates a revolving loan program for small- retreat during which participants confer withbusiness people." The program requires that for state and local government officials on variousevery $8,000 loan, the borrower must create one issues. In July 1996, the chair of the Leadership new full-time job.82 Another Arkansas-based or- Development Program was a black female labor ganization, with a profit-making subsidiary that union leader, who also served on the Chamber'shas purchased an automobile parts and service executive committee.87 center employing low-income residents, plans to Another Delta community that has institutedacquire two additional businesses." These addi- a leadership program to improve opportunitiestional businesses are expected to produce 34 to for all its citizens is Yazoo City, Mississippi. 36 new jobs." Other initiatives include the Der- Sponsored by the Chamber of Commerce, several mott, Arkansas-based Pathways Program whose area businesses and the Mississippi Departmentmission is to train residents to own and operate of Economic and Community Development, Yazootheir own businesses." The program operates City's leadership program involves area churchesbusinesses, e.g., resale and consignment stores, and schools in a effort to bring together presentas laboratories for entrepreneurial training and and future area leaders in a yearlong program ofself-development in four Arkansas counties: Ash- seminars and retreats.88 The participants are se-ley, Chico, Desha, and Drew. However, hinder- lected from all parts of the county, and the num-ing the program's efforts is the "traditional lend- ber of males/females and blacks/whites is repre- ing concept" of the financial industry." Also in sentative of the gender and racial composition ofArkansas, the Southeast Arkansas Economic Yazoo County." Development District operates a Job Training Partnership Act program that targets high Community-Based Nonprofit and Self-Help school dropouts.87 Organizations Arkansas is also home to the East Central Among the latest strategies for improvingArkansas Economic Development Corp., origi- economic conditions and promoting equality ofnally established in August 1964 as an Office of opportunity for blacks are those being utilized byEconomic Opportunity community action agency. numerous community, nonprofit, and self-helpCurrently, the corporation operates a myriad of organizations. These organizations typically are community-based programs with funds from fed- created and organized by coalitions of white anderal, state, and local governments; foundations; black residents. churches; and individuals." Among the corpora- One such group originally functioned as ation's many projects are its housing program, committee within a local chamber of commerce.which has built more than 100 single-family, Now, the Washington County (Mississippi) In-multiunit, and senior citizen rental housing dustrial Foundation is a separate nonprofit in- dustrial program that strives to retain current 98 Tommy Hart, executive director, Washington County (MS) Industrial Foundation, telephone interview, June 21, 1996. 87 The black female labor union leader, Eva Diane Wilson, is 91 Glenn Bell, executive director, Southeast Arkansas Eco- no longer the chair of the program. Each chair serves a one- nomic Development District, telephone interview, July 2, year term. Ms. Wilson was chair for the 1996 calendar year. 1996. The current chair is John Anderson, an African American 92 Ibid. male, who is the community affairs director for the city of 93 Tommy Davis, executive director, East Central Arkansas Monroe, Louisiana. The next chair, Linada Holyfield, assis- Economic Development Corp., telephone interview, June 20, tant administrator of St. Francis Medical Center in Monroe, 1996 (hereafter cited as Davis Interview). assumes office in January 2000. Ms. Holyfield is a white 94 Ibid. female. Michael Neal, telephone interview, Sept. 8, 1999. 88 Gerald P. Fraiser, economic development coordinator, 95 Hurley Jones Testimony, Hearing Transcript, p. 428. Yazoo (MS) County Chamber of Commerce, telephone inter- 98 Ibid., p. 433. view, June 28, 1996. 97 Glenn Bell Testimony, Hearing Transcript, pp. 458-59. 89 Ibid. 98 See Davis Interview.
12
24 units in a four-year period. Its current plans in- Greenville, Mississippi; Canton, Mississippi; and clude a large single-family home development'Arkansas, have operated for nearly 20 years and project consisting of 70 homes and including amanufacture a number of items, including denim large community centerfor lease/purchase byjeans, folding attic stairs, electronic parts, gas- low-income residents.99 In addition, the corpora-kets for weed eaters, and washing machine tion has established a, for-profit subsidiary, Eastparts.'" The Delta Foundation also has estab- Arkansas Enterprises, Inc., which has purchasedlished a Small Business Administration-type an auto parts and service center andseveraldemonstration program, which provides financ- other businesses, all of which employ low-income ing in the form of micro-loans of $10,000 or less people.100 and other loans up to a maximum of $25,000 to In Mississippi, the Community Individual In-businesses that would otherwise not be able to vestment Corp. operates a revolving loan fundobtain financing, many of which are minority for new businesses.101 And one of the major pri- owned.195 vate sector organizations at work in the Delta today to change the socioeconomic conditions inNational Programs and Policies the region is the eight-year-old Foundation for One of the most ambitious efforts to address the Mid-South. The foundation is a nonprofitthe region's poverty is the federal government's organization that secures funding from privatedesignation of the Mid-Delta region as an em- sources to improve economic opportunity, thepowerment zone. Established by Congress in quality of education, and the services provided to 1993, the Empowerment Zone/Enterprise Com- families and children throughout the tristatemunity Program was designed to help impover- Delta region. To that end, the foundation pro- ished areas develop comprehensive approaches vides direct assistance to community-based or-to economic development. The program, author- ganizations, towns, churches, schools, and inter- ized by the Omnibus Budget Reconciliation Act faith organizations in the form of grants, train-of 1993, essentially provides tax incentives and ing, and technical assistance. relief to businesses to stimulate the economies of One component of the foundation is the En-the designated areas and has a special emphasis terprise Corporation of the Delta, a private non-on creating new jobs.106 Specifically, a commu- profit business development organization begunnity that is designated as an empowerment zone in June 1994, with the specific mission to assistis required to submit a strategic plan detailing existing Delta businesses and new businesses byits goals and its plans for attaining those goals providing needed financing, management assis-with funding assistance from the program. Each tance, and market development. empowerment zone or enterprise community is Another Mississippi organization is the Deltarequired to include all segments of the commu- Foundation, a community development entity that initially was established to increase eco- 194 Ibid. nomic opportunities for blacks in Mississippi but 105 Ibid. now addresses economic issues of blacksand 106 P.L. 103-66, Aug. 10, 1993. The program established nine whites.192 The Delta Foundation works to en- empowerment zonessix urban and three rural. Each of the courage business development, create jobs, and six urban areasAtlanta, Baltimore, Chicago, Detroit, New York, and Philadelphia-Camden, NJwere awarded $100 increase opportunities for business financing. To million in grants and $150 million to $250 million in tax date, it has created some 6,000 jobs, 400-500 of incentives. The rural empowerment zone areasthe Ken- which are found in plants run by its profit- tucky Highlands, Mid-Delta in Mississippi, and the Rio makingdivisionDeltaEnterprise.103The Grande Valley in Texaswere given $40 million in grants plants of Delta Enterprise, most of which are in and $150 to $250 million each in tax incentives. The pro- gram also established 95 enterprise communities-65urban and 30 ruralwhich were to receive grants and tax incen- tives of approximately $6 million. Also created under the act 99 Ibid. were two supplemental empowerment zones inLos Angeles 100 Ibid. and Cleveland. See also Richard Cowden and Ruth Knack, "Power to the Zones: HUD Offers a New Twist on an Old an Tommy Hart Testimony, Hearing Transcript, p. 444. Standby; Housing & Urban Development Department, Em- 102 Harry J. Bowie, president and chief executive officer, the powerment Zones and Enterprise Communities"; includes Delta Foundation, telephone interview, Oct. 12, 1995. related article, "American Planning Association," February 103 Ibid. 1995, p. 8. 13 nitypublic, private, and nonprofit as wellas However, the GAO, in the same report, found federal, state, and local governmentsin itsthat the Mid-Delta zone, like many of the other comprehensive plan, which must include de-rural enterprise communities and empowerment tailed benchmarks for achievement, timelines,zones, has experienced difficulties in meeting its and continuous, ongoing reviews. Administration goals and establishing benchmarks. The report and oversight of each of the rural community'sfound that although all the programs had estab- or zone's programs is provided by the Depart-lished the requisite organizational structures, ment of Health and Human Services, the indi-several circumstances, including erroneous in- vidual states, and the Department of Agricul-formation to the programs from the U.S. De- ture, which alsois responsible for programpartment of Agriculture; conflict between writ- evaluations and technical assistance. ten and oral guidance provided by the Depart- The Mid-Delta Empowerment Zone is gov-ment of Health and Human Services; and in- erned by the Mid-Delta Empowerment Zone Al-complete progress reports had contributed to the liance Commission, a coalition of representativesprograms' inability to meet expectationsre- from many local organizations, including busi-garding their goals. nesses, churches, and community groups. The And criticism of the program does not end commission, like many of the community-based with the GAO report. According to the president self-help organizations working for economic re- of the National Black Chamber of Commerce, vitalization of the region, is composed of repre-the empowerment zone concept is incapable of sentatives from the region's wealthiest citizenssucceeding due to the nature of the program and as well as its poor and is responsible for effecting the administration responsibility: the proposals in the program. Indeed, in Janu- ary 1994, members of this coalition joined to-Enterprise Zones, hundreds across the nation and gether to submit the application for theempow- none a success, were the precursor to empowerment erment zone designation. Among this group were zones. The failure of the former did not discourage the members of two major Delta organizationsthe designers of the new venture... The Department of Housing and Urban Development (HUD) aka the aforementioned predominately white, wealthy House of Urban Decay, has proven itself to be incom- Delta Council and the biracial Delta Foundation. petent at business development and economic devel- According to a March 1997 U.S. General Ac- opment. The best business and job growth program at counting Office (GAO) report, the Mid-DeltaHUD has been its Section 3 initiative which is 29 zone's strategic plan is as follows: years old and virtually ignored. How is it going to institute a new high-powered program when it ig- The EZ's strategic plan focuses on three themes: nores the best one it has? Of all the federal agencies, building community in the Mississippi Delta; increas- the Department of Agriculture is probably, the most ing economic opportunity in Mississippi Delta com- institutionally racist; as a result, Black farmersare munities, and sustaining community and economic an endangered species. Despite the above, guess who development in Mississippi Delta communities. The the main contributors to empowerment zones are? EZ has 41 benchmarks. HUD and the U.S. Department of Agriculture .. . Why doesn't the Small Business Administration and Specific projects for the EZ include the following: theDept.of Commerce overseethisprogram? Wouldn't that be logical?100 expanding and strengthening businesses and industries by providing assistance in accessing He also asserts that designation of thezones capital, business and technical assistance, andhas not resulted in the creation ofnew busi- marketing; nesses, particularly black-owned businesses, but improving the quality and accessibility of health care by seeking to increase the number of doctors merely has led to the migration of corporate gi- serving the Mid-Delta region; ants to depressed areas in search of tax relief, improving race relations by creating a race re- e.g., Kmart to New York City. lations council; and promoting community beautification through the The key to business growth and job production is creation of a recycling program.107 capital access. However, empowerment zonesare
1" U.S. General Accounting Office, Rural Development New Approach to Empowering Communities Needs Refine- 108 Harry C. Alford, "Why Empowerment Zones Just Aren't ment, no. GAO.RCED-97-75 (Mar. 31, 1997). Working," The Ethnic NewsWatch, July 2, 1997, p. 13. 14
2 6 based mainly on tax abatements. What good are tax and work, and creating jobs, including entrepre- abatements if there is no revenue or income to tax.neurial opportunities. The only businesses that will be attracted by tax Friedman proposes five specific programmatic breaks are viable, large businesses in pursuit of rein-and policy changes.112 First, he suggests the re- vestment ...What does tax abatement mean to a business that has no start-up capital? .. . the problem moval of all barriers to training, education, em- ployment, and entrepreneurship that are embod- that exists . .. no capital access ..I'm still asking for an example of an empowerment zone thathas pro-ied in the present system, e.g., loss of medical in- duced a certifiable new Black-owned business thatsurance and loss of eligibility for benefits. Next, has in turn produced 40 new jobs. To date, it hasn't he proposes that government support for recipi- happened.109 ents be maintained while recipients pursue self- sufficiency. Third, transfer payment recipients More recently, in 1998 the federal govern-and investments should be coordinated and inte- ment began a second round of empowermentgrated with other investment programs. Fourth, zone initiatives, adding five rural and 15urbanhe recommends that states experiment with new zones, and also announced plans for a DeltaRe- programs to the extent that they are allowed todo gional Commission to fulfill the goals set by the so in administrating transfer programs.Finally, Lower Mississippi Delta Development Commis-he suggests that as states review and assess the sion in the 1980s."0 results of their model programs, they seek con- One leading proponent of major changes ingressional approval for more broad-based reforms. current governmental and fiscal policies recom- Several witnesses at the Commission's hear- mends that public policy shift emphasis to in-ing, the majority of whom were from national vestments as opposed to income maintenanceorganizations, echoed Friedman's call for na- and also concentrate on building assets, enter-tional policies encouraging asset building among prise, and economies. According to Robert E. the poor rather than the historic income mainte- Friedman, author of The Safety Net As Ladder, nance policies. According to these witnesses, not by emphasizing job creation through enterpriseonly have income maintenance policies failed to development, with a special concern for ap-eliminate the intergenerational poverty preva- proaches that help establish sustaining econo-lent in the Delta and elsewhere but they have mies, policymakers in state and local govern-actually contributed to the perpetuation of the ments, corporations, private foundations, labor cycle of dependence and poverty: unions, and community groups can design and implement innovative and effective economicEconomic development within this region requires development strategies." Historically, govern- that there be a holistic approach and recognition that mental policies for the poor have concentrated wealth must be created. It must be diversified and it on providing transfer payments and other in- must remain with the affected area, turning over sev- come maintenance programs. However, some eral times before leaving.113 observers believe that this policy has not re- The paucity of assets held by residents in poor com- duced poverty dependence; instead, it has re-munities and the absence of asset-building policies sulted in institutionalized dependence, has sti-and programs available to them are the greatest bar- fled initiative, and has discouraged job creation. riers to eliminating poverty and dependency. Our in-, Friedman recommends that policies expand come maintenance systems are designed tohelp fami- choices and treat programs for the poor as in-lies and individuals with inadequate income to sur- vestments. This change in focus can be accom-vive at or near poverty level. These systems are not plished by encouraging and enabling trainingdesigned to help people become economically self- sufficient and reduce the probability of intergenera- tional poverty ...Economic development programs must begin to address the building of assets, not just 10° Ibid. providing jobs and increased income ...The absence 110 Bartholomew Sullivan, "Official Pitches Clinton's Plan of savings, investable assets, property and homeown- for Delta," The Commercial Appeal, Feb. 27, 1998, p. Bl. Joe Gyan Jr., "Gore Announces Expansion of Economic Initia- tive," The Advocate, Apr. 17, 1998, p. Al. 112 Robert E. Friedman, The Safety Net As Ladder (Wash- ington, DC: The Council of State Policy & Planning Agen- 111 Robert E. Friedman, founder, chairman of the board, and director, West Office, the Corporation for Enterprise Devel- cies, 1988), pp. 132-34. opment, telephone interview, June 18, 1996. 113 Hawkins Testimony, Hearing Transcript, p. 334. 15 ership, business ownership, and properly timed in-enacted into law on December 21, 2000.118 The vestments and postsecondary education for the poorprogram will use deferred-interest loans and leave many families in poverty or on the verge of fal- ling back into poverty.114 other incentives to draw the private sector into making capital investments into economically According to one witness, a federal proposaldistressed communities. One stop on the tour for Individual Development Accounts (IDAs)was Clarksdale, Mississippi, where the Presi- would help address the need for asset-buildingdent promoted investment in the Mississippi policies to eliminate the Delta's endemic poverty.Delta and Community Development Financial Essentially, the IDAs would be funded by publicInstitutions (CDFI)."8 On this trip, the President and private moneys that would match the sav-mobilized a large and broad array of private sec- ings of low-income residents. The funds fromtor investments in untapped domestic markets. these accounts would then be used solely for as- The following are just a few of the significant set building, e.g., as down payments for homenew commitments the private and public sectors purchases, business start-up costs, and trustare making to America's New Market: funds for postsecondary education for children and adults.115 First Union, Bank One, BellSouth, Bankers Home purchases by low-income Delta resi- Trust, and others investing in Appalachia dents, which was identified by witnesses, as a new commitments to 14 CDFIs around the primary means of accumulating assets and country building wealth, could be increased if residents an announcement by a major financial insti- were assured equal opportunity in obtaining tution about the creation of a new venture mortgage loans. The Home Mortgage Disclosure capital fund that will be targeted to under- Act requires that lending institutions in metro- served inner-city markets and that will politan areas provide statistical data on the race make available several hundred million dol- of home mortgage applicants, and applications lars in equity capital to small businesses granted and denied. However, the act does not commitments from dozens of companies to apply to rural areas. Imposing similar disclosure hire thousands of out-of-school youth and requirements on rural areas, according to one disadvantaged young people throughout the hearing witness, would help reveal and, hope- nation128 fully, eliminate one of the impediments to better housing in the Deltadiscriminatory home lend- These new initiatives will expand on the fed- ing practices."8 Finally, elimination of the cur- eral programs that have been enacted over the rentfederalprohibitionagainstborrowingpast seven years.121 While in Mississippi, Presi- money for a down payment to purchase a home, dent Clinton announced $15 million in new pri- according to one witness, would note only resultvate investments in the Enterprise Corporation in better quality housing for impoverished Delta of the Delta and $500 million in equity from the residents but also would lead to asset buildingBank of America for business enterprises in low- for poor residents."7 income areas. Of that, $100 million will go into CDFI. Many other firms are pledging millions of The New Markets Initiative. From July 5 dollars as well.122 through July 8, 1999, President Clinton toured rural America to highlight his New Markets Ini- 118 P.L. 106-554. tiative. A legislativeproposal incorporating 118 See World Wide Web
2 8 Critics of the program come from both sides of the nation's economic engine.128 The other message of political spectrum. Laissez-faire capitalists believethe tour was that our nation is not based on com- government should let market forces take their course, and not try to promote private investmentmon race or religion, but on the simple premise of through various incentives. Lyndon Johnson Greatopportunity for all; not guaranteed outcomes, but Society types, on the other hand, think governmentan equal playing field of opportunity.123 needs to be more directly involved in providing eco- As of April 2000, both the White House and nomic resources to rural America.... Governments the GOP have legislation pending regarding the from Winnetka to Washington have used tax abate- future of poor rural and urban communities. The ments, enterprise zones and low interest loans for White House's proposal is titled the New Mar- years to direct private sector resources into areas kets Initiative, and the GOP bill is called the where they are needed. The New Markets Initiative isn't really new. It's just a continuation of policiesAmerican Community Renewal Act.130 The plans that already have been implemented elsewhere.123 put forward are similar is some respects, includ- ing reliance on tax credits and breaks rather In February 2000, an announcement bythan government spending on new programs. Firstar Corp. of a $100 million lending initiativeThe question is what to do about the issues on in St. Louis was due in part to the New Markets which the two disagree.131 There is a suggestion Initiative agenda that has made it very profit- on the table to give one set of communities bene- able for companies to relocate or open businesses fits of the GOP plan and another group benefits in depressed areas.124 One important key tofrom the White House model. Then, after seven making sure the initiative is a success is thatto eight years, the benefits from each plan would corporations adopt the attitude that African expire, and Congress could determine which one Americans in the region are worth investing worked better.132 in.126 Across the country, urban neighborhoods Historically,Republicansand Democrats such as North St. Louis have become the newhave approached poverty differently; however, meccas for real estate developers. According to the two current proposals are driven by the same Black Enterprise magazine, financial expertsbasic philosophy: using tax incentives to attract predict that real estate once abandoned in urbanbusinesses to neglected areas rather than fund- areas will be a $100 billion market:126 ing new government programs to help those who live there. Reports in May 2000 stated both sides If Firstar is sincere in its efforts to invest in North St. were optimistic that the final wrinkles would be Louis, the results could be powerful.... St. Louis has a worked out and an agreement reached in large and untapped pool of creative and capable black 2000.133 visionaries, but it has an equal share of naysayers and pessimists. Initiatives for lending institutions ECONOMIC OPPORTUNITY, AGRICULTURE, AND such as Firstar are long overdue.'" BLACK DELTA FARMERS
The President's July 1999 tour raised na- For more than 100 yearsand particularly during the tional awareness that despite our booming econ-past 30 yearsthe U.S. Department of Agriculture omy, many places are left far behind. The first has administered federally funded programs designed message of the tour was that areas visited are to improve almost every aspect of the lives of low- examples of potentially new economic markets income farm and rural families. ... Asthe group most that can be developed to continue to fuel this depressed economically, most deprived educationally, and most oppressed socially, Negroes have been con- Tough Work Remains for Hard-Pressed Communities," The sistently denied access to many [agricultural] ser- Washington Post, July 7, 1999, p. A2. 123 "Cities Not Alone in Needing Help; Clinton Correct to 128 Andrew Cuomo, "The Trip Into Poverty," The Washington Look to Hinterlands," The Sun-Sentinel (Fort Lauderdale), Post, July 11, 1999, p. B7. July 10, 1999, p. A14. 123 Ibid. 124 Sylvester Brown, "Black Entrepreneurs Need to Use New 133 Deirdre Shesgreen, "White House and GOP Cooperate to Loan Fund and Believe in Themselves," The St. Louis Post- Help Revive Poor Communities," The St. Louis Post-Dispatch, Dispatch, Feb. 29, 2000, p. B15. Apr. 30, 2000, p. A9. 123 Ibid. 131 Ibid. (discussing the differences in the two proposals). 126 Ibid. 132 Ibid. 127 Ibid. um Ibid.
17 vices, provided With inferior services when served, hired hands. They'd downgrade our tobacco if they and segregated in federally financed agricultural pro- knew we were black."38 grams whose very task was to raise their standard of living.'" In 1965, the U.S. Commission on Civil Rights (the Commission) noted that African Americans When Virginia tobacco farmer John Boyd was denied a Federal farm operating loan in 1990, his eighth re- who live in southern rural areas experience jection in nine years came as no surprise. Whatgreater economic hardships than their rural shocked Boyd was the way a county [USDA] officialwhite neighbors.139 Later, in The Decline of threw his application in the trash right in front ofBlack Farming in America, the Commission him.135 "I got my mule," said Boyd, a farmer fromnoted that in 1978 "the rate of [farm] land loss Baskerville, Va., who is president .of the Nationalfor blacks increased to 57.3 percent, 2% times Black Farmers Association. "I need my 40 acres.136 the rate of loss for whites."140 It was further rec- ognized that African Americans operated only In recent years, the nation has begun to refo- 57,271 farms in the United States.141 Specifi- cus its attention on the marked decrease incally, The Decline of Black Farming in America black-owned farms across the country.137 How-indicated that "blacks represent[ed] only 5.6 per- ever, the saga of discriminatory treatment andcent of the South's farmers. About 85 percent of disturbing economic adversities that black farm-all black farmers are located in the South. The ers encounter is not a new story. Timothy Pig-largest numbers are in Mississippi, North Caro- ford, one such North Carolina farmer, related hislina, South Carolina, Texas, Alabama, Georgia, experience with USDA inspectors in the 1950s: Virginia, Louisiana, Tennessee, and Florida."142 [Flarmers [from Willard, North Carolina] would load their tobacco and drive to the warehouse in Whiteville 138 Edward Martin, "For the Land's SakeClass Action Case [North Carolina], 50 miles away. . .. White ware- against Federal Lending Policies Discriminating Against house owners seemed fair, he recalls, but black farm- African American Farmers," Business North Carolina, vol. ers distrusted USDA inspectors, who graded tobacco 18 (November 1998), p. 52. before the auctioneer came. "We'd unload real early in 133 USCCR, Equal Opportunity in Farm Programs, p. 99. the morning, then stand way off to the other side ofThe report's findings were based on information obtained the warehouse, or a white farmer would let us stand from staff field visits to USDA state and county offices in 22 with him so that the graders would think we were counties of eight Southern states (Alabama, Arkansas, Georgia, Mississippi, Louisiana, North Carolina, South Carolina, and Virginia). Ibid., p. 2. 145 U.S. Commission on Civil Rights, The Decline of Black Farming in America, 1982, p. 2 (hereafter cited as USCCR, 134 U.S. Commission on Civil Rights, Equal Opportunity in The Decline of Black Farming). Farm Programs: An Appraisal of Services Rendered by 141 Ibid., p. 1. The Commission cited to 1978 Bureau of Cen- Agencies of the United States Department of Agriculture, sus agricultural data that classified "farm operators" as full 1965, pp. 99-100 (hereafter cited as USCCR, Equal Oppor- owners, "part owners (who operate leased land as well as tunity in Farm Programs). their own farms) and tenants." Ibid. See generally Jim Chen, 135 John Springer, "Black Farmers Group Supports Settle- "Of Agriculture's First Disobedience and its Fruit," Vander- ment," The Hartford Courant, Nov. 23, 1998, p. B7 (hereaf- bilt Law Review, vol. 48 (1995), p. 1261. "Jim Crow's creed of ter cited as Springer, "Black Farmers Group.") racial relations in the South rested on the assumption that white America could confine the descendants of African 136 "Black Farmers March on Capitol to Highlight Discrimi- slaves to the South. But massive resistance to wage-and- nation," (visited Mar. 20, 1998)
19 31 agency's civil rights activities.151 However, each monitoring FmHA's state and local civil rights of these USDA agencies determines its own pro- compliance program activities.'57 cedures and instructions for implementing Title VI and other civil rights policies.152 Land Grant Programs One of these agencies, the Farmers Home In 1862, the First Morrill Act158 created a Administration (FmHA) serves an essentialnovel opportunity to provide federal funding to function of providing credit assistance to farmerseach state for public higher education.'" Ulti- and rural residents through a number of grantmately, the Morrill Act would be the catalyst for and loan programs.153 FmHA administers to eli-future agricultural initiatives on land grant pub- gible participants federally assisted programs,lic colleges that offered a useful curriculum for such as farm ownership loans, private enterprise the working class.160 The act provided that each grants for improving and protecting farmland forstate would receive 30,000 acres of land for each conservation initiatives, and rural housing siteone of its senators or congressional representa- loans for private or public nonprofit organiza-tives. After this property was sold, income from tions for housing in rural areas.154 the sale would be used to support each state's The Equal Opportunity Staff (EOS) in Wash-agricultural college or colleges.161 According to ington, D.C., is FmHA's civil rights and equalthe provisions in the act, a perpetual fund would employment opportunity office. EOS is dividedgrant: into two divisions: the Equal Employment Op- portunity Branch and the Equal Opportunity at least one college where the leading object shall be, Program Compliance Branch.155 The Equal Em- without excluding other scientific and classical stud- ployment Opportunity Branch is responsible for ies, and including military tactics,to teach such FmHA's internal civil rights responsibilities of branches of learning as are related to agriculture and the mechanic arts... in order to promote the liberal providing special emphasis programs and han- dling theagency's internalTitleVII com- plaints.156 The Equal Opportunity Program 157 Ibid. Some of the civil rights regulations include: Title VI, Compliance Branch is responsible for external Title IX, the Age Discrimination Act, section 504 of the Re- and internal civil rights enforcement of regula- habilitation Act, the Equal Credit Opportunity Act, and Title tions by processing external program com- VIII of the Fair Housing Act. plaints, responding to OCRE's requests, and 158 Ch. 130, §4, 12 Stat. 503, 504 (1862) (codified as amended at 7 U.S.C. §§ 301-308 (1994)). 159 USCCR, Equal Opportunity in Farm Programs, p. 19. In 1862, Congress also created the U.S. Department of Agricul- ture in order to obtain and disseminate information on new 151 Ibid. "OCRE monitors, coordinates, and evaluates agency methods of farming. Land grant colleges were established to heads' efforts to enforce Title VI and other related laws and teach agriculture and mechanic arts. regulations by conducting audits, onsite field reviews, or 169 See Gil Kujovich, "Equal Opportunity in Higher Educa- compliance reviews to determine the degree of compliance tion and the Black Public College: The Era of Separate But and enforcement." Ibid., p. 253. Equal," Minnesota Law Review, vol. 72 (1987) pp. 29, 41-42 152 Ibid. (hereafter cited as Kujovich, "Equal Opportunity in Higher 153 USCCR, Federal Title VI Enforcement, p. 292. Education"); see also Donald E. Voth, "A Brief History and Assessment of Federal Rural Development Programs and 154 Ibid., pp. 292-94. Some of the other programs include Policies," Memphis State University Law Review, vol. 25 grazing association loans for conservation purposes, soil and (1995), p. 1270 (citing the remarks of Professor George water conservation and pollution abatement loans, and wa- McDowell of Virginia Polytechnic Institute and State Uni- ter and waste facility loans and grants for water resource versity, Department of Agriculture and Applied Economics, development and pollution control. See also ibid., pp. 300 before a conference in 1991 on the future of the USDA and 01. "The Acting Director of EOS told the [U.S.] Commission the land grant system: "[T]he Land-Grant colleges were not [on Civil Rights] that the current civil rights structure at originally agricultural colleges, but people's colleges, though USDA (one umbrella civil rights office and individual agency many of the people without access to college were engaged civil rights offices) is adequate. However she stressed that in agriculture. They were to make our democracy better by USDA's civil rights office should report directly to the Secre- providing higher education to the sons and daughters of tary of the USDA or the USDA should have an assistant ordinary citizens. ... For the first time in history, the prob- secretary for civil rights at the Department. She also said lems of ordinary people were the subject of scholarship and that more interaction between agency heads' civil rights science. The scholarly agenda was democratizedthe devel- offices and OCRE is necessary." Ibid., pp. 300-01. opment of the Babcock milk test was both a scientific act 155 Ibid., p. 295. and a political act.") Ibid., p. 1270. 156 Ibid. 181 7 U.S.C. §§ 301-308 (1994).
20
32 and practical education of the industrial classes in the Congress enacted the Hatch Act166 in 1887, to several pursuits and professions in life.162 encourage the use of employing scientific ap- proaches in solving agricultural problems. Despite the First Morrill Act's effect of pro- viding an opportunity to educate rural Ameri- This act made annual appropriations to the "college cans on agricultural and scientific advance- or colleges" established under the First Morrill Act, ments, in the 17 segregationist states, whites"or any of the supplements to the Act, in each state primarily benefited from its existence."63 Subse- for the purpose of setting up agricultural experiment stations." The Hatch Act recites that "in any State ... quently in the 1870s, only Mississippi, Virginia, in which two such colleges have been or may be so and South Carolina distributed land grant fund-established the appropriation ...made to such States ing to black colleges.'" shall be equally divided between such colleges Also during this time, land grant colleges be- unless the legislature of such State ... shall other- gan using agricultural experiment stations to wise direct.167 examine and solve serious farming problems such as soil erosion and the lack of technical However, black farmers in the South often knowledge relating to fertilizers.'65 Accordingly, did not benefit from the passage of the Hatch Act. While the Alabama Legislature did desig- nate state tax revenue for agricultural experi- ment stations at Tuskegee Institute and the 162 7 U.S.C. § 304 (1994). Alabama State Normal School for Negroes in 163 Kujovich, "Equal Opportunity in Higher Education," p. Montgomery, it is reported that neither of these 42. "The southern and border states referred to ... are the 17 states that maintained a rigid system of segregation in institutions was ever identified to receive Hatch public higher education during the separate but equal era: Act resources.168 Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, The passage of the Agricultural College Act of Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and 1890 (the Second Morrill Act)169 in 1890 further West Virginia." Ibid., p. 30, n. 1. acknowledged therealityof segregation in 164 Ibid., p. 42. "In 1871 the black-controlled legislature of higher education, by providing that states with Mississippi created Alcorn University for the education of two systems of education equally divide their black students and provided that Alcorn would receive land grant funds between black and white insti- three-fifths of the annual income from the federal landtutions.170 The Second Morrill Act mandated grant, with the remainder for the University of Mississippi. Beginning in 1878 the annual income was divided equally between the two institutions. ... Virginia providedfor an 166 Ch. 314, 24 Stat. 440 (1887) (codified as amended at 7 equal division of the annual income, with half going to U.S.C. § 361ai (1994)). .. In 1872 the Hampton Normal and Agricultural Institute. . 167 Knight, 787 F. Supp. at 1146 (stipulations of fact (citing Carolinalegislaturedesignated black-controlledSouth the Hatch Act) (emphasis in original)). "When the Hatch Act Claflin University, a private black college, as the state's land was passed, the southern states (except for Mississippi, grant institution. In 1889 after whites had regained control South Carolina and Virginia) had designated only white of the legislature, the income was divided equally between institutions as land grant colleges." Id. at 1146 (stipulations Claflin and the newly created Clemson Agricultural College for whites. In 1896 the legislature established the Colored of fact). Normal, Industrial and Agricultural College of South Caro- 168 Id. at 1146 (stipulations of fact). "The branch experiment lina and provided for the equal division of the income be- station at Tuskegee would provide limited benefits to black tween that institution and Clemson. The black school was farmers. It did not, however, conduct the kind of scientific subsequently renamed the State Agricultural and Mechani- work done by the experiment stations under the control of cal College." Ibid., p. 42, nn. 45-47 (internal cites omitted). Auburn [University]. ... The station at Tuskegee was Cf. USCCR, Equal Opportunity in Farm Programs, p. 19. placed under an all-white board of control and was eventu- Trains were used as mobile classrooms to bring information ally made a branch station of [Auburn University]." Id. at of agricultural advancements from the land grant colleges to 1146-47; see Kujovich, "Equal Opportunity in Higher Educa- the farmers. tion," p. 61. The author indicated that by the 1930s, West Virginia State College was the sole black land grant college 166 Knight v. Alabama, 787 F. Supp. 1030, 1146 (N.D. Ala. 1991) (affd in part, rev'd in part, vacated in part, Knight v. that received Hatch Act funds for its experiment station. Alabama, 14 F.3d 1534 (11th Cir. 1994)). In 1883, the Ala- The college received only $1,800 of the millions of federal bama State Legislature established Alabama's first agricul- research funds that had been allocated to the segregationist tural experiment station at Auburn University, which did states. not admit black students. One year later, the Legislature 166 Ch. 841, 26 Stat. 417 (1890) (codified as amended at 7 passed a law that provided a fertilizer tax which appropri- U.S.C. § 321 (1994)). ated one-third of these funds to the Auburn experiment 170 7 U.S.C. § 323 (1994). A'Lelia Robinson Henry, "Perpetu- station. Id. ating Inequality: Plessy v. Ferguson and the Dilemma of 21
3 3 that "no money shall be paid for the support ofa with scientific and technical advances and major college where a distinction of raceor color is changes in the agricultural sector."5 made in the admission of students."171 Concomi- tantly, Congress defended the federalgovern- The benefits of CES have not continually ment's support of the doctrine of "separate butbeen extended to all Americans who needed its equal" in public education."2 Despite thiscon- resources. The history of USDA's Cooperative straint, the Second Morrill Act eventuallycre- Extension Service began as a result of theen- ated at least one black public college in each ofactment of the Smith-Lever ACt176 in 1914.177 the segregationist states.'" However, these landThe purpose of the act was to benefit individuals grant colleges were often constrained by techni-in rural areas who did not have immediateac- cal staff who had limited advanced training,cess to the agricultural advancements at the minimal federal and local financial assistance, land grant colleges.'" The act provided that: and little, if any, direct research support."4 As a result, black farmers often received inferior agri- In order to aid in diffusing among the people of the cultural support services. United States useful and practical informationon subjects relating to agriculture, uses of solarenergy with respect to agriculture, home economics, andru- Cooperative Extension Service ral energy, and to encourage the application of the Dr. Bob Robinson, administrator of USDA's same, there may be continued or inaugurated in con- Cooperative State Research, Education, and Ex- nection with the college or colleges in each State, Ter- tension Service, testified before the House Agri- ritory, or possession, now receiving, or whichmay culture Committee's Forestry, Resource Conser- hereafter receive, the benefits of... [the First and vation and Research Subcommittee on the im- Second Morrill Acts], agricultural extension work portance of the Cooperative Extension Servicewhich shall be carried on in cooperation with the United States Department of Agriculture: Provided, (CES) to rural communities. He observed: that in any State, Territory, or possession in which two or more such colleges have been or hereafter may The value-added of the Cooperative Extension Service be established, the appropriations hereinafter made is its ability to design, develop, and deliver educa- to such State, Territory, or possession shall be admin- tional programs that meet the unique needs of localistered by such college or colleges as the legislature of people as they adjust to change. In every State, the such State, Territory or possession may direct."5 number and type of educational programs are deter- mined largely by land grant university extension fac- ulty working with stakeholders to solve their prob- The act's proviso allowed state legislatures to lems and take advantage of opportunities associated determine which land grant college shouldre- ceive Smith-Lever funding. In the event that Black Access to Public and Higher Education," Journal of there were two or more eligible institutions, it Law and Education, vol. 27 (January 1998), pp. 48-49. served to further exclude African Americans in 171 Ch. 841, 26 Stat. 417 (1890) (codified at 7 U.S.C. § 323 the South during this time."0 Specifically, the (1994)). 172 Kujovich, "Equal Opportunity in Higher Education,"p. 43. "[T]he establishment and maintenance of such colleges 178 Dr. Bob Robinson, administrator, Cooperative State Re- search, Education, and Extension Service, U.S. Department separately for white and colored students shall be held to be of Agriculture, prepared statement, Hearing Before the a compliance with the provisions of this act if the funds... be equitably divided." Ibid., p. 42 (citing §§ 1, 26 Stat. 417, House Agriculture Committee, Forestry, Resource Conserva- 418 (1890)). tion, and Research Subcommittee, Federal News Service, July 9, 1997 (hereafter cited as Robinson, House Agriculture 173 Ibid., p. 43. Committee Hearing). 174 Brown, Christy, and Gebremedhin, "Structural Changes," 178 Ch. 79, 38 Stat. 372 (1914) (codified as amended as 7 p. 65; Kujovich, "Equal Opportunity in Higher Education," U.S.C. §§ 341-349 (1994)). pp. 43-51; see also Knight, 787 F. Supp. at 1052. In this case, the plaintiffs contended inter cilia that "AAMU [Ala- 177 See USCCR, Equal Opportunity in Farm Programs, p. 19. bama A&M University] was designated Alabama's black The CES serves as the educational component of the USDA. land grant university in 1890, but it received no state fund- 178 Knight, 787 F. Supp. at 1147. ing for land grant functions until 1982, when small appro- 179 7 U.S.C. § 341 (1994) (emphasis in original). priations began, and the state continues to this day denying 189 Knight, 787 F. Supp. at 1148-52; Kujovich, "Equal Op- AAMU any share of federal funds proceeding from the... portunity in Higher Education," p. 54; see also Knight, 787 Morrill Land Grant Act, the...... Hatch Act .. and the . F. Supp. at 1168. "There are sixteen states which have des- Smith Lever Act. As a result, black farmers were forced off the land in disproportionate numbers." ld. ignated '1890' [Second Morrill Act land grant] institutions. Those sixteen states are: Alabama, Georgia, Florida, North 22
3 legislatures of all 17 segregationist states allo- Generally, the Federal Extension Service cated their white land grant colleges to receiveprovides the Cooperative Extension Service's Smith-Lever funds, which ultimately preventedadministrative structure, which trains state ex- blackeducationalinstitutionsandAfrican tension workers and evaluates ag*ultural pro- American farmers from obtaining the full bene- grams.186 In 1965, the Commission documented fits of agricultural advancements that resultedthat extension work at the state level continued from this program.un to be provided in a segregated manner by sepa- The county extension office served as the linkrate staffs.187 During that time, between land grant colleges and local citizens in need of its services. County extension offices [i]n an Alabama county the Negro [extension services] were staffed by "farm or county agents" who ad- agent stated to Commission interviewers that Ne- groes did not attend demonstrations held on white ministered and planned the extension pro- farms and that there were beef cattle demonstrations gram.182 As southern extension services eventu- for white farmers but none for Negroes. ... In an- ally employed African American county agents, other Alabama county, specialists met with white they were most frequently assigned to black land farmers while the Negro agent reported that Negro grant colleges or to counties with 450 or more farmers did not receive the services of specialists. black farm families.183 Black county agents were Another Negro agent said he learned, through conver- often hindered by lack of teaching materials andsations with white livestock producers and newspa- demonstration equipment, limited travel funds, pers, about a fertility testing program for bulls which inadequate office space, and support.184 USDA was available to white farmers but not to Negroes.188 estimates for 1925 to 1942 revealed that: More recent reports relating to USDA's ad- when the rural population of the segregationist states ministrative structure indicate that the Coopera- was approximately one-fourth black, annual exten- tive Extension Service was merged with the Co- sion expenditures for the benefit of the black popula- operative State Research Service in 1994, in or- tion did not exceed seven percent of total expendi- der to form the Cooperative State Research, tures. In practice, the extension program in the black Education, and Extension Service (CSREES) and community was usually limited to the services pro- to improve the accessibility of agricultural ad- vided by black agents.185 vancements to serve a more diverse audience.189
Carolina, South Carolina, Virginia, Kentucky, Tennessee, The mission of CSREES is to achieve significant and Mississippi, Louisiana, Arkansas, Oklahoma, Texas, Mis- equitable improvements in domestic and global eco- souri, Maryland, and Delaware. In each of the 16 states with 1890 institutions, the statewide agricultural experiment station, and the statewide cooperative extension service, are precluded much assistance to the black agent." Ibid., p. 58, under the exclusive administrative supervision and control n. 119 (citing W. Truehart, "The Consequences of Federal of each state's 1862 [First Morrill Act] land grant institu- and State Resource Allocation and Development Policies for tion." Id. at 1168. Traditionally Black Land-Grant Institutions: 1862-1954" 181 Kujovich, "Equal Opportunity in Higher Education," pp. (Ed.D thesis, Harvard University)). 54-55. 186 USCCR, Equal Opportunity in Farm Programs, p. 20. The 182 Ibid., p. 56. The county extension office was also staffed State extension service is represented "as a unit of the land- by home demonstration and youth agricultural club agents. grant colleges [that] operates with the advice and assistance of the Federal Extension Service. It is responsible for supervising 183 USCCR, Equal Opportunity in Farm Programs, p. 20; and directing all extension work in the State as well as for Kujovich, "Equal Opportunity in Higher Education," p. 56. formulating and organizing statewide programs. ... The state 184 Kujovich, "Equal Opportunity in Higher Education," pp. extension services have developed cooperative financing and 56-57. The author noted that while white extension workers administration with the county governments." Ibid., p. 21. received federal, state, and county funds for their agricul- 187 Ibid., p. 23. tural extension activities, black agents used their limited wages to pay for support services. See also Wade v. Missis- 188 Ibid., p. 46. Cf. ibid., p. 48, regarding the establishment sippi Cooperative Extension Serv., 528 F.2d 508, 515 (1976). of lower production goals for black farmers; Deborah M. The United States Court of Appeals for the Fifth Circuit Clubb, "Glickman Hears Cries of Racism from Area Farm- affirmed the district court's findings that Mississippi State ers," The Commercial Appeal, Jan. 8, 1997, p. Al (hereafter University's Mississippi Cooperative Extension Service had cited as Clubb, "Glickman Hears"). "Robert Elliott of Gibson subjected black county agents and workers to employment County, Tenn., said he worked with the University of Ten- discrimination. nessee Extension Service 20 years and was nearly fired when he complained about racial slurs he heard from local 188 Kujovich, "Equal Opportunity in Higher Education," p. farm officials." Ibid. 58. "Most white agents ... found that their own responsibil- ity to serve the white community and other considerations 189 Robinson, House Agriculture Committee Hearing. 23 nomic, environmental, and social conditions by ad- farmers who could not obtain credit.193 Subse- vancing creative and integrated research, education, quent legislation gave FmHA the additional au- and extension programs in food, agricultural, and related sciences in partnership with both the publicthority to provide loans for individual rural and private sectors. The partnership includes CES homeownership, rental home construction, home and 103 Land Grant institutions. This partnershiprepairs, water and waste disposal systems, and links the education and research resources of the U.S.community facilities.'" In fiscal year 1983, a Department of Agriculture and the land-grant univer- USDA Task Force on Black Farm Ownership sities with 3,150 county and administrative unitsprompted the creation of the Small Farmer throughout the country. CSREES is a Federal partnerTraining and Technical Assistance Program in a partnership that also includes the 59 State and(SFTTAP).195 The primary objective of this pro- Territorial Agricultural Experiment Stations; the 17 1890 land grant institutions, including Tuskegeegram was to assist minority farmers by creating University; the 63 Forestry Schools; the 27 Colleges of cooperative agreements between FmHA and his- Veterinary Medicine... and the 29 Native American torically black colleges.196 Specifically, "the pro- Institutions, which now have land-grant status.'" gram's technical assistance plan consisted of demonstrations of farming techniques, farm Farmers Home Administration management practices, development of farm One of USDA's agencies, the Farmers Homeplans, and assistance to farmers with obtaining Administration, was intended to serve as a ma- loans."197 jor financial lending source to limited-resource The Outreach and Assistance Grants for So- and low-income farmers.19' In 1946, Congresscially Disadvantaged Farmers and Ranchers Pro- combined the Farm Service Agency and the gram is another component of the SFTTAP.198 Emergency Crop and Feed Loan Programs intoThe Outreach and Assistance Grants Program the newly created Farmers Home Administra- tion, giving FmHA the authority to insure loans 193 Wayne D. Rasmussen, "New Deal Agricultural Policies made by banks, other agencies, and private indi- After Fifty Years," Minnesota Law Review, vol. 68 (1983), p. viduals, in addition to making direct government 367. loans."92 194 USCCR, The Decline of Black Farming, p. 74; USCCR, During this same year, the Secretary of Agri- Federal Title VI Enforcement, pp. 292-94. In 1992, FmHA issued $6.8 billion to 87,000 recipients, which included state culture was also authorized to issue production and local agencies, independent farmers and ranchers, ten- and subsistence loans, which replaced former ants, and profit and nonprofit organizations. Ibid., p. 292. emergency and rural rehabilitation loans to 196 John Just-Buddy, chief, Economic Enhancement Branch, Farm Service Agency, U.S. Department of Agriculture, tele- phone interview, Feb. 29, 1996 (hereafter cited as Just- 190 Ibid. Buddy Interview, Feb. 29, 1996). 191 RR. REP. NO. 95-986, 95th Cong., 2nd Sess., reprinted in 196 Ibid. 1978 U.S.C.CA.N. 1106, 1121; USCCR, The Decline of Black 197 John Just-Buddy, chief, Economic Enhancement Branch/ Farming, p. 72; see ibid., p. 50. "Most significant is the com- formerly acting director of special programs, Farm Service petitive disadvantage faced by black farmers due to the rela- Agency, U.S. Department of Agriculture, telephone inter- tively small size of their landholdings. While the average view, June 25, 1996 (hereafter cited as Just-Buddy Inter- commercial black-operated farm in the South [in 1978 was] view). The SFTTAP was originally known as the 1987 Agri- 128 acres, the average white-operated farm... [was] more culturdl Credit Act. The program was part of FmHA's re- than three times that size-428 acres. The relatively small sponse to former President Ronald Reagan's Executive Or- size of their landholdings combine with current economic der 12320, which supported historically black colleges and conditions, governmental policies, and institutional practices universities. The 1985 farm bill did not allocate funding for to place black farmers at a competitive disadvantage with this program. The USDA ultimately used part of its operat- large operators and investors, most of whom are white." ing funds for salaries and expenses to support the Small Ibid. See generally Court's Opinion on Plaintiffs Motion for Farmer Training and Assistance Program. Just-Buddy In- Class Certification, Pigford v. Glickman, Civil Action No. 97- terview, Feb. 29, 1996. See also Just-Buddy Interview. "In 1978, 1998 U.S. Dist. LEXIS 16299, at *1 (D.D.C. 1998). an October 1995 [USDA] ... reorganization, the Agricul- "Until 1994, the USDA operated two separate programs that tural Stabilization and Conservation Services [ABCS] and provided... price support loans, disaster payments, 'farm the Farm Credit Program from... FmHA were combined to ownership' loans and operating loans: the Agricultural Sta- form the Farm Service Agency..." Ibid. According to Mr. bilization and Conservation Service (ASCS) and the Farmers Just-Buddy, ABCS had a history of not working well with Home Administration....In 1994, the functions of the minority citizens; "[N]ationwide [ABCS] had only one or two ASCS and the FMEA were consolidated into one newly- blacks on its county committees which [made] decisions created entity, the Farm Service Agency [FSA] .. ." Id. at *3. regarding loans to farmers." Ibid. 192 USCCR, The Decline of Black Farming, p. 74. 198 Just-Buddy Interview.
24
3 6 encouraged the creation of cooperative agree-,late approval of their loan applications, which ments with the 1890 and 1862 Land Grant Insti-inhibits their ability to plant crops and harvest tutions, Native American community colleges,them in a timely fashion in order to compete various community organizations, and Hispanicwith area farmers.203 Another difficulty is the Servicing Institutions to support economicallyamount of debt that African American farmers disadvantaged farmers.00 often incur when attempting to secure financial support. Dr. Harness remarked that as a result Lending Difficulties and Loan Debt of Alcorn's program, in 1995 only 11 percent of One extension program that serves SFTTAPits clients had farm debt, as compared with 98 participants is located at Alcorn State Universitypercent in 1989.204 While these participants may in Lorman, Mississippi. According to Dr. Jessebe more successful in reducing their farm debt, Harness, associate extension administrator andother farmers are not as fortunate. For example, coordinator of civil rights and equal employmentLloyd Shaffer, a farmer in Bentonia, Mississippi, opportunity at Alcorn University, Alcorn's pro-described his son's experiences with a local Farm gram assists borrowers in acquiring farm loans,Service Agency (FSA) office when starting his improving their cash flow to facilitate loan re- first farm: payment, improving their management skills, and diversifying their crops.200 The program tar- He requested machinery. ... to do hisjob with, and do gets residents of Bolivar, Washington, Hum- a well-done job, but he did not receive that. He had to phreys, Holmes, and Yazoo Counties in Missis- depend on other farmers in order to operate his land, eippooiDr.Harnessindicatedthatmost SFTTAP participants are black, since most white 203 Ibid.; USDA/CRAT, Civil Rights, p. 21. "[In 1995 and 1996,] only 67% of African American [FSA direct and guar- farmers in the Delta operate larger farms. Ap- anteed] loans were approved in Louisiana, compared to 83% proximately 250 clients are helped on a daily of non-minority loans. Alabama showed a similar disparity basis through Alcorn's program.202 only 78% of African American loans [were] approved, com- Dr. Harness described some of the difficulties pared to 90% of non-minority loans.... In theSoutheast [part of the country],...in several States it took three that black farmers face in obtaining loans and times as long on average to process African American loan venture capital. He explained that the most sig- applications as it did non-minority applications. Similar nificant problem that black farmers face is the disparities between non-minority loanprocessing and American Indian loan processing appeared in records for a number of States included in FSA's Northwest region." Ibid. 199 Ibid. Annual awards administered at the 1890 and 1862 See also ibid., p. 15. This reference provides an overall de- Land Grant Institutions and were used for training and scription of farmers' experiences in obtaining FSA loans, management assistance for minority and small farmers and and how the agency's processing delays resulted in a loss of ranchers. Personalized technical assistance consisted of farm profit. R.C. Howard, Tchula, Mississippi farmer, tele- providing individualized custom farm plans, production and phone interview, Feb. 6, 1997 (hereafter cited as Howard marketing practices, farm accounting, and record-keeping Interview). Mr. Howard remarked that area white farmers principles. A farm management specialist then visited every informed him of their standard practice in purchasing fertil- participant's farm one to three times per month. izer. They told the local fertilizer company that they ex- 200 Jesse Harness, Ph.D., associate extension administrator pected an FSA loan. The fertilizer company would then con- and coordinator of civil rights and equal employment oppor- tact FSA, and the agency would confirm that the farmer tunity, Alcorn State University, telephone interview, July should receive the farm loan. These farmers would receive 19, 1996 (hereafter cited as Harness Interview); see ibid. their fertilizer supply on credit. When Mr. Howard at- Small farmers are defined as those who have gross incomes tempted this, the FSA reportedly told the fertilizer company of $100,000 a year or less. In addition, a small farm is con- that he had submitted a loan application, but it could not sidered to be 200 to 300 acres of land, and a large farm is verify that Mr. Howard would get a loan. As a result, Mr. 4,000 to 5,000 acres. See generally ibid. The program en- Howard could not obtain his fertilizer. courages farmers to grow crops such as vegetables that are Herbert Williams, a Warren County, Mississippi, farmer, nontraditional for Mississippi. Vegetables require less acre- testified during the public session of the hearing that local age for a profitable return than other crops that have tradi- FSA officials overtly delayed processing his farm loan, and tionally grown in the state, i.e., cotton, soybeans, and rice. reduced the requested amounts. As a result, he was only Cotton may produce $250/acre of land, while vegetables able to purchase one tractor but no additional farm equip- could produce $2,000/acre. ment. In addition, he maintained that in 1996, white farm- 201 Ibid. The program also serves Madison Country, which ers' loan applications were processed before his, although borders the Delta. his request had been submitted earlier. Williams Testimony, 202 Ibid. Another 400 to 800 clients are also assisted through Hearing Transcript, pp. 653-55. this program. Some of these individuals are residents of 204 Ibid. Dr. Harness indicated that the 1995 percentage rate nontargeted counties. is lower than the overall state average. 25 3 7 [and] do his operation. And it kind of crippled him in loans.208 Those individuals with restructured a way. He was late getting financed on one of hisloans through a USDA debt reduction crops, which was the soybean. And when he did get program [the loan], he didn't have enough money to complete would be exempt from this provision and could his job, to... do a good farm practice. But he's stuck apply for operating loans.209 In addition, to qual- now with a debt that he's going to have to carry for 15 ify for FSA Emergency Loans, which are issued years. They did re-amortize his debt for 15 years, but as a result of natural disasters, borrowers cannot if he had... the proper equipment from the begin-be delinquent on any direct or guaranteed FSA ning ... he could of went and finished his job, got his loan.210 Finally, the 1996 FAIR Act eliminated a seeds in the ground, harvested his crop, and been able provision, the farmland leaseback-buyback pro- to adjust his debt at the end of the year, more so than gram, which "offered farmers who had lost their what he did....205 farmland to FSA through foreclosure, bank- These problems may also be due to the im-ruptcy, or voluntary conveyance a chance to re- pact of the Federal Agriculture Improvement acquire that land. "211 and Reform Act of 1996 (1996 FAIR Act).206 Sev- African American farmers also contend that eral provisions of this act altered the FSA loanother hindrances prevent them from obtaining process. For example, farmers who had beenequitable farm financing. Although these farm- previously eligible for FSA's debt forgivenessers may have 90 percent federally guaranteed program were no longer qualified for FSAloans, local banks are reluctant to issue funds to loans.207 Secondly, those farmers who were de- them.212 Banking requirements that demand linquent on direct or guaranteed farm loansexcessive amounts of collateral only serve to would not be eligible for FSA direct operatingsupport farmers' reluctance to use local banks' services.213 Dr. Harness referred to a catfish co-
208 See 1996 FAIR Act, Pub. L. No. 104-127, § 648(b), 110 Stat. 888, 1104 (codified at 7 U.S.C.A. § 2008h (Supp. 1998)); Carpenter, "FSA Credit," pp. 37-38. 206 Lloyd Shaffer Testimony, Hearing Transcript, pp. 584-85. 206 USDA, "1996 FAIR Act"; 7 U.S.C.A. § 2008h(b)(2) (Supp. 206 Pub. L. No. 104-127, 110 Stat. 888 (codified at 7 U.S.C.A 1998). §§ 7201-7334 (Supp. 1998)). See generally Stephen Carpen- ter, "Farm Service Agency Credit Programs and USDA Na- 210 7 C.F.R. § 1945.162(a)(1998); Carpenter, "FSA Credit," p. tional Appeals Division," Drake Journal of Agriculture Law, 38. 211 vol. 3 (Spring 1998), pp. 35, 36-43 (hereafter cited as Car- Carpenter,"FSACredit,"p.40;see7U.S.C. § penter, "FSA Credit"). 1985(e)(1)(A)(i) (1994) (repealed and replaced by 1996 FAIR 207 See 1996 FAIR Act, Pub. L. No. 104-127, § 648(b), 110 Act, Pub. L. No. 104-127, § 38, 110 Stat. 888, 1094 (codified Stat. 888, 1104 (codified at 7 U.S.C.A. § 2008h (Supp. 1998)); at 7 U.S.C.A. § 1985(c) (Supp. 1998)); USDA/CRAT, Civil Carpenter, "FSA Credit," p. 37; U.S. Department of Agricul- Rights, p. 26. "Because this rule change ended the program ture, Office of Communications, 1996 Farm Bill, "The Fed- altogether, without protection of existing options, many eral Agriculture Improvement and Reform Act of 1996," minority and limited-resource farmers have lost this oppor- (visited Dec. 6, 1998)
3 8 operative in Mound Bayou, Bolivar County, Mis- smaller share of agricultural benefits than their sissippi, that was initiated by a group of blackwhite counterparts, and that blacks as well as farmers. They experienced difficulties obtainingother individuals with small farms have diffi- financing to support their processing facility. Inculty economically competing with large farming addition, Dr. Harness indicated that black farm-operations.217 While poverty and unemployment ers in Bolivar County have frequently reportedcontinue to be serious concerns for the Missis- problems relating to obtaining services from fed-sippi Delta, "the government has foreclosed on so eral agencies in that county. They attributedmuch land in Bolivar County, [Mississippi]... these difficulties to racial discrimination.214 that it is now one of the biggest land owners, its Similarly,R.C.Howard, a farmer from field mostly filled with weeds and fallow."215 Tchula, Mississippi, who has received assistance from Alcorn University, informed a Commission Factors Contributing to the Lack of Black- staff attorney of his experience with an FmHAOwned Farms local office. His loan application remained on an In addition to difficulties in obtaining farm FmHA supervisor's desk for 30 days before heloans, other factors contribute to the alarming was advised that additional information was re-decrease in the number of black-owned farms in quired to process the request.215 Mr. Howard the Mississippi Delta region. One cause is fore- supplied this information, and he applied againclosure on farm property. Other factors stem in January of 1993 for a loan. He continuallyfrom allegations of discriminatory treatment checked on its status by telephoning and sending based on race in the manner in which the USDA letters to the Secretary of Agriculture and aadministers its farm programs. In 1995, several state administrator. In July of 1993, he learnedminority farmers filed a lawsuit in the United that his loan was denied. Mr. Howard appealed States District Court for the District of Columbia the determination, and the appeals officer lateragainst the USDA. The plaintiffs in this case, reversed this judgment. Simultaneously, he was Williams u. Glickman,219 requested that their advised to contact the FmHA supervisor, whocase be certified as a class action lawsuit, and informed him that his application did not in-they alleged that the USDA had discriminated clude a cash flow amount.216 After this experi- ence, Mr. Howard wondered why the supervisor 217 Tony Freemantle, "Black Farmers Besieged by Econom- allowed his application to languish on his desk ics, Racism," The Houston Chronicle, Mar. 9, 1997, p. Al (hereafter cited as Freemantle, "Black Farmers Besieged"); for six months. see Ben Burkett, state coordinator, Federation of Southern Although FSA is characterized as the "lender Cooperatives/Land Assistance Fund, "Black Owned Land: A of last resort" for all small farmers, African Disappearing Resource," Mississippi Delta Hearing, Exhibit American farmers contend they are frequently 15. "Another provision in the [1996 Farm] Bill is the seven year transitional payments ... [which]will have an adverse the recipients of financial leftovers. Other re- impact on Black farmers. The government will provide sub- ports have revealed that these farmers obtain a sidies for the next seven years, and after that, farmers are on their own. Any farmer growing crops will have to be able to sell his product on the world market. If credit is not vegetable farmer. The bank said they wanted the truck for available, how can Black farmers compete with large corpo- collateral, a $10,000 CD, and 40 acres of land, for the truck. rate farms? Without the subsidies, he/she will be at the And this was in 1992, I believe. And that's the situation we mercy of a market controlled by large corporate farms. Is it face when we go to borrow money, even in the local banks.... the government's plan to take Black farmers back to share- [W]e must have a lot of confidence in ourselves, because we cropping? What will happen to thousands of other Black put it all up." Ibid. farmland owners, such as Black women who own land and 214 Harness Interview. rent to Black farmers? [B]y making farm land available to Blacks, these women are getting much needed income. If 215 Howard Interview. Blacks are unable to farm that land, it too will fall prey to 216 Ibid. Mr. Howard indicated that he had obtained assis- land speculators because it then becomes a burden to its tancecompletinghisloanapplicationfromAlcorn's owner." Ibid. SFTTAP. He asserted that FmHA staff altered the figures on his application so that it did not reflect cash flow and 218 Freemantle, "Black Farmers Besieged." Cf. ibid. "Unem- other amounts. Mr. Howard, who had kept a copy of his ployment rates in Bolivar County sit at 8.4%, compared with the state average of 5.9%. In some communities, 60% of the original application, was later informed by FmHA staff that certain information, such as his income tax return, was households have incomes below the poverty level." missing from his loan request. When he searched the con- 219 Court Opinion of Plaintiffs' Motion for Class Certifica- tents of his file at the FmHA office, he was able to retrieve tion, No. 95-1149, 1997 U.S. Dist. LEXIS 1683 (D.D.C. Feb. the missing information from the office file. 14, 1997). This case is now known as Herrera u. Glickman. 27
3 9 against them based on their race.220 The court completely failed to process discriminationcom- ultimately denied the plaintiffs' motion for class plaints, when its Office of Civil Rights Enforce- certification and determined that they did notment and Adjudication (OCREA) was disman- meet the class certification requirements andtled in 1983. "[F]armers who filed complaints of that their proposed class definitionwas overlydiscrimination never received a response, or if broad.221 they did receive a response, it was a cursory de- Subsequently, a group of black farmers alsonial of relief. In some cases, the plaintiffs allege filed suit against the USDA.222 The lead plaintiffthat OCREA simply threw discriminationcom- in this case was Timothy Pigford, a North Caro-plaints in the trash without ever responding to lina farmer.223 This suit alleged that the Secre- or investigating them."225 tary of Agriculture and his predecessors admin- In response, the U.S. Department of Justice istered programs through the Farm Service(DOJ) contended that the farmers' previous Agency (formerly, the Farmers' Home Admini-complaints filed against the USDA were tooan- stration), which "developed and maintaineda cient to be currently valid, therefore barring pattern of racial discrimination." Secondly, thetheir lawsuit because of a statute of limitations plaintiffs contended that the federal governmentprovision.226 The DOJ also indicated that the denied their farm loan applications and failed toindividual plaintiffs alleged an excessive number provide appropriate technical assistance, whichof issues to proceed with theircases at one ultimately resulted in a loss of their liveli-time.227 Congress subsequently voted to waive hoods.224 In addition, they asserted the USDAthe statute of limitations requirement to allow the farmers to seek redress against the USDA 220 Id. at *7. The proposed class of plaintiffs was defined as: for old race discrimination allegations.228 The "All African American or Hispanic American persons, who Congressional Black Caucus, under the leader- between 1981 and the present, have suffered from racial or ship of Representative Maxine Waters (D-CA), national origin discrimination in the application for or the was a primary proponent of the statute of limita- servicing of loans or credit from the FmHA (now Farm Ser- vice Agency) of the USDA, which has caused them to sustain tions waiver provision. The caucus declared the economic loss and/or mental anguish/emotion [sic] distress House-passed waiver provision to be "the first damages." Id. at *10. part of a major victory to close this ugly chapter 221Williams, 1997 U.S. Dist. LEXIS 1683. "Most of the of discrimination by the U.S. Department of Ag- original Williams plaintiffs settled their claims against the riculture against black farmers, who haveen- USDA. The two remaining plaintiffs, both of whom are His- panic, had pending administrative complaints with the USDA, and the court therefore [stopped] the lawsuit pend- ing an administrative determination by the USDA on the merits of the administrative complaints." Pigford v. Glick- Mississippi, North Carolina, Tennessee, Texas, Virginia, and man, No. 97-1978, 1998 U.S. Dist. LEXIS 16299 at *8, n. 2 Puerto Rico. (D.D.C. Oct. 9, 1998). Pigford v. Glickman, 185 F.R.D. 82, 225 Pigford, 1998 U.S. Dist. LEXIS 16299at *5. 1999 U.S. Dist. LEXIS 5220 (D.D.C. 1999). 226 Peter Hardin, "Congress Lifts Key Obstacle to Redress 222 Mary Beausoleil, "Black Farmers Battle USDA," The for Black Farmers," The Richmond Times Dispatch, July 18, Richmond Times Dispatch, Nov. 24, 1996, p. Al. See Mary 1998, p. Al (hereafter cited as Hardin, "Congress Lifts Ob- Beausoleil, "Farmers: Enough Hearings," The Richmond stacle"); see generally Henry Campbell Black, Black's Law Times Dispatch, Dec. 15, 1996,P. Al (hereafter cited as Dictionary (St. Paul: West Publishing, 1983), p. 477 (paper- Beausoleil, "Farmers: Enough Hearings.") Black farmers back edition). A statute of limitations is defined as: "A stat- sought a speedy settlement of civil rights cases filed against ute prescribing limitations to the right of action on certain the USDA that have been pending for a number of years. described causes of action.... declaring that no suit shall be 223 See generally Martin, "For the Land's Sake." The author maintained on such causes of action... unless brought provides a detailed description of Mr. Pigford's farming ex- within a specified period of time after the right accrued.... periences with the USDA. Statutes of limitations are statutes of repose,... legislative enactments as prescribe[d] [by] the periods within which 224 Beausoleil, "Farmers: Enough Hearings." See also Dave actions may be brought upon certain claims or within cer- Hirschman, "USDA Chief Plans Visitto Assess Bias tain rights may be enforced." Ibid. Charge," The Commercial Appeal, Jan. 1, 1997, p. B4. Ap- 227 Bill Miller, "Judge Allows Black Farmers' Class-Action proximately 300 black employees have also filed a class ac- tion lawsuit against the USDA's Forest Service. They al- Suit," The Washington Post, Oct. 10, 1998, p. A13 (hereafter leged the agency's management officials perpetuated a pat- cited as Miller, "Judge Allows"). tern of disparate treatment in various areas, such as train- 228 Hardin, "Congress Lifts Obstacle." Both the U.S. House ing, promotions, hiring, and award recognition. The case of Representatives and the U.S. Senate agreed to waive the originated in Region 8, which includes South Carolina, Ala- statute of limitations provision. The White House and USDA bama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Secretary Glickman also supported this measure. 28
4 0 dured decades of discrimination."229 U.S. District,receives a blanket payment of $50,000, plus ad- Judge Paul L. Friedman then certified this case,ditional relief in the form of forgiveness of their Pigford v. Glickman, as a class action lawsuit in debt on loans affected by discriminatory conduct, October 1998. As a result, the case against theand some offset of tax liability if they provide USDA would go forward with the black farmerswritten "substantial evidence" of credit discrimi- represented as a single group of plaintiffs.230 nation. Most claimants-19,226 asof April The next month the USDA offered the Pig- 2000have chosen Track A.234 Farmers with ford plaintiffs a settlement of their case.231 Gen-more evidence of discrimination could seek lar- erally, the proposed settlement would identifyger damages by opting for Track B. As of April the plaintiffs into two separate groups: 2000, 142 claimants have chosen Track B, which has a higher standard of proofpreponderance One class would be those farmers who have com- of the evidencethan Track A, but provides for a plained of discrimination involving lending and debt. tailored settlement based on individual circum- [J.L.] Chesnutt, [one of the attorneys representing stances, including a cash payment equal to ac- 600 black Georgia farmersj said the government pro- tual damages and forgiveness of outstanding poses to write off debts, replace or provide comparable land lost in a package that could average $200,000USDA loans affected by discriminatory con- per farmer. In the other category, in which USDA duct.235 Additionally, claimants were provided officials contest the claims, a one-day binding arbitra- the opportunity to "opt out" of the class action tion is proposed that could result in settlements thatsuit between April 14, 1999, and August 12, may reach $1 million or more.. 1999. Two hundred thirty-three claimants chose to opt out and continue individual cases in the In January 1999, attorneys for both sides en-administrative process or in court. As of April tered into a five-year consent decree. On April 2000, approximately 30 claimants have chosen to 14, 1999, U.S. District Judge Paul L. Friedman pursue discrimination cases against the USDA.236 gave final approval to the settlement. This set- There have been problems with the distribu- tlement was denounced by a host of farmers,tion of settlement funds. However, the first civil rights leaders, and others as inadequate.233 $50,000 checks were mailed in November 1999. Under the framework of the settlement, claim- Poorman Douglas, the firm contracted to process ants had a choice of one of two "tracks" for proc- settlement claims, has mailed checks from set- essing their claims. Under Track A, a claimanttlement moneys to 2,412 claimants as of Decem- ber 1999.237 Additionally, Representative Jay 223 See Congressional Black Caucus, "CBC Wins Waiver of Dickey (R-AR) and Representative J.C. Watts Statute of Limitations For Black Farmer Discrimination (R-OK) have proposed a resolution urging the Claims," Press Release, June 25, 1998, in which Congressional Black Caucus Chair Maxine Waters, giving special thanks to government to speed up payment of money it caucus members, Rep. John Conyers, Rep. Edolphus Towns, owes to black farmers.238 The 38-member Con- Rep. Eva Clayton, Rep. Sanford Bishop, Rep. Jim Clyburn, gressional Black Caucus met May 3, 2000, in Rep. Earl Hilliard, Rep. Cynthia McKinney, Rep. Bobby Washington, D.C., to consider whether or not to Scott, and Rep. Bennie Thompson, who have "worked tire- lessly to ensure justice for black farmers," states: "The CBC support the nonbinding bill. The meeting was has held hearings, participated in 'listening sessions' around hosted by Representative Bennie Thompson (D- the country, joined with black farmers at rallies at the MS) who stated the bill was a "feel-good piece of USDA and the Department of Justice, facilitated a meeting legislation without any substance." Members of between the President and the black farmers, worked with the attorneys representing various black farmer groups, and the caucus opted to denounce the resolution. negotiated the USDA's administrative complaint process for black farmers." 230 miller, "Judge Allows." There are more than 400 black 234 See World Wide Web at
4 1 Representative Dickey defended his bill, stating, farmers, Secretary Dan Glickman announced in "Though it would have no force of law, it wouldDecember 1996 that the USDA would temporar- focus national attention on the issue."239 ily stop all farm foreclosures.243 The purpose for The allegations in the Pigford class actionthis order was to determine how discrimination lawsuit reflect similar complaints by other blackcontributed to each farmer's financial difficul- farmers. For example, Ben Burkett, a farmer in ties.246 the Mississippi Association of Cooperatives in- Moreover, the Secretary later announced that formed a Commission staff attorney that he re- he and USDA's Civil Rights Action Team (CRAT) ceives "12-15 complaints a year from blackwould attend a series of 13 "listening sessions" farmers who go to the marketplace in Memphisacross the country, to receive the public's views and get a lesser grade on their goods [than what on alleged USDA civil rights violations.247 CRAT white farmers receive]."240 Secondly, an investi-was mandated to review USDA's policies and gation of a USDA loan awarded to Welchel Longrecommend solutions to the Department's insti- of Dewey Rose, Georgia, revealed that he re-tutional barriers that affected service delivery.248 ceived an 18 percent interest rate for a farmingIt was headed by Pearlie S. Reed, USDA's acting loan, while white farmers near his property were assistant secretary for administration and asso- charged interest rates as low as 3 percent.241 Mr. ciate chief of the Natural Resources Conserva- Long contended loan officials asserted he man- tion Service.249 Listening session forum locations aged his farm inadequately, and failed to recog- nize his experience of teaching agriculture for 30 243 National Public Radio, "Morning Edition," Dec. 20, 1996; years at Tuskegee University in Alabama.242 Mary Beausoleil, "Minority Farmers Get U.S. Attention," The Richmond Times Dispatch, Dec. 22, 1996, p. Al; see Similarly, Willie Crute of Baskerville, Vir- editorial, "U.S. Agriculture's Seeds of Failure," The Wash- ginia, applied for a $119,000 USDA loan to fi- ington Post, Dec. 12, 1996, p. A20. Farm Service Agency nance a new poultry house, in order to take ad- administrator Grant Buntrock said in a statement, "We vantage of an offer to farmers by Perdue Farmsrecognize there have been instances of discrimination in responding to requests for our services in the past, and we toraisechickens.243 Mr. Crute's loan was deplore it." See also Mary Beausoleil, "White Farmers Turn- granted a year later. The delay caused him to ing to Black Group for Help," The Richmond Times Dis- forfeit the farming opportunity. USDA investiga- patch, Dec. 30, 1996, p. Al. tors subsequently revealed that: 246 Ibid. C.f. Mark Holmberg, "Farmer's File May Have Been Tampered With," The Richmond Times Dispatch, Jan. 9, white farmers in [Mr. Crute's] county typically waited 1997, p. Al. A spokesperson for the USDA acknowledged that a "breach of security" caused a theft of a farmer's file in 84 days for loan decisions, while black farmers had tothe western Henrico County, Virginia, local office of the wait an average of 222 days. Investigators also found FSA. The file belonged to John W. Boyd Jr., president of the that 84% of the white applicants had their loan appli- National Black Farmers Association. Previously, Mr. Boyd cations approved, while only 56% of the black appli- accused the USDA of racial discrimination. cants were granted loans.2" 247 Mary Beausoleil, "Complaint Sessions Omit State," The Richmond Times Dispatch, Jan. 1, 1997, p. A2.; see also As a result of the USDA's findings of dis- Burkett Interview, p. 2; "Black Farmers Raise Discrimina- crimination in the FSA's lending practices and tion Issues with Ag Sec'y at Listening Session in Georgia," The GreeneCountry Democrat,Jan.8,1997,p.1; administration of technical assistance to black USDA/CRAT, Civil Rights, p. 3. "The listening panels were composed of either Secretary Glickman or Deputy Secretary Richard E. Rominger (with one exception), CRAT members, 239 Ibid. members of Congress, and members of the State Food and 249 Ben Burkett, manager of the Indian Springs Farmers Co- Agriculture Council. Customer sessions were tailored to Operative/member of the Mississippi Association of Coop- address the civil rights concerns of specific cultural groups." eratives, telephone interview, Feb. 7, 1997 (hereafter cited Ibid. as Burkett Interview); see also Howard Interview. 248 usDA/CRAT, Civil Rights, p. 3. 241 Bob Hohler, "Black Farmers Press White House," The 249 U.S. Department of Agriculture, Office of Communica- Rocky Mountain News, Dec. 14, 1996, p. 64. "His debt soared tions, "Glickman Announces Civil Rights Listening Session, to $300,000, thrusting him into foreclosure battles and forc- Civil Rights Action Team Members," Press Release No. ing him to abandon soybeans and cotton for far-less- 0651.96 (Dec. 31, 1996) (hereafter cited as USDA, Press profitable crops of turnips and collard greens." Ibid. Release No. 0651.96); U.S. Department of Agriculture, Office 242 Ibid. of Communications, "Statement of Secretary Dan Glickman, Civil Rights Action Plan," Press Release No. 0065.97 (Feb. 243 Fletcher, "Bias," p. Al. 28, 1997) (hereafter cited as USDA, Press Release No. 244 Ibid. 0065.97). 30
42 near or in the Delta region included Albany, Eva Clayton (D-NC) introduced a bill to transfer Georgia; New Orleans, Louisiana; Memphis, the employment status of county FSA employees Tennessee; Halifax, North Carolina; and Belzoni, to a federal civilservicelevel.256 Secretary Mississippi.250 During the Memphis and HalifaxGlickman also referred to the outcome of an Of- sessions, farmers informed federal officials of the fice of Inspector General (OIG) report On dis- types of difficulties they have encountered withcrimination allegations in USDA's farm loan the USDA, such as the inability to obtain bankprogram: "The OIG found that 'staffing prob- loans.251 Several other black and small-scalelems, obsolete procedures, and little direction white farmers indicated that USDA officialsfrom management' resulted in a 'climate of dis- were discourteous and denied their loans atorder' within the civil rights staffs at the Farm will.252 Another African American farmer fromServices Agency andatthedepartmental Halifax, North Carolina, informed the audience level."257 how his son had been denied a farm loan: Allegations of Discrimination at Local USDA [The] son received a letter from FmHA which said, Farm Offices "You lack sufficient training and experience and edu- In March 1997, the Commission received tes- cation to be successful in farming to assure reason- timony and evidence fromseveralAfrican able re-payment for the loan requested." His son, who American farmers who testified about discrimi- grew up on a 300-acre family farm, was a graduate of A&T State University with a major in agriculturalnatory treatment at local farm offices. Ben education. Since his son had inherited land and Burkett, a member of the Mississippi Association equipment from his grandfather, all he needed was of Cooperatives, testified about how black farm- operating money. This [USDA] speaker mentioned an ers are often discouraged to apply for loans and FmHA pamphlet for young farmers which says "You're to grow certain crops: interested in being a young farmer, then FmHA wants to help." ... Where is the help?253 Yes, we have had farmers go into the local office and we [the Mississippi Association of Cooperatives] tell them At the conclusion of the Department's listen- in our training session that [the local office] cannot ing sessions, Secretary Glickman maintained refuse to give you an application ... package. ... But that efforts to reform the USDA will ensure eq- when they go in and the supervisor talks to them and uitable treatment for everyone.254 CRAT then they say well, you just can't make no money growing 150 acres of cotton, you know, there ... ain't noneed issued a report in February 1997 with 92 rec- of you going through the [loan application] process, ommendations and corresponding action plans. because you are going to be turned down anyway, [it] During this time, Secretary Glickman specifiedjust dishearten[s] the farmer. And I tell them that if that the USDA would focus most of its attentionyou know the law and your rights, they cannot refuse on strengthening its accountability, as well as you an application.258 requesting legislative authority to change all nonfederal Farm Service Agency county posi-Further, Mr. Burkett also testified about his ex- tions to federal status.255 Later, Representativeperience with a local county office official who rejected his farm plan application, since it was prepared with the assistance of Alcorn Univer- 260 See Beausoleil, "Complaint Sessions." Other sessions were held in Tulsa, Oklahoma; Brownsville, Texas; Salinas sity's technical assistance program.256 and Sacramento, California; Rapid City, South Dakota; and Window Rock, Arizona. 251 Clubb, "Glickman Hears." sist the Department in ensuring the enforcement of federal 262 USDA/CRAT, Civil Rights, p. 6. Female farmers, as well civil rights laws. as Hispanic, Asian, and Native American farmers also voiced their concerns about being excluded from USDA pro- 256Elizabeth Warren,"Clayton's FarmServicePlan grams, as well as the Department's alleged lack of account- Praised," Medill News Service, Oct. 24, 1997 (visited Dec. 6, ability. Ibid., pp. 6-8. 1998)
4 3 African American farmers also contend that mittee has] to certify as to [whether] his [farm] is fea- there is a lack of racially diverse staff in local sible.262 farm offices. The CRAT report confirmed this disparity does indeed exist (see table 1.12). Other sources have also acknowledged the impact of the lack of a diverse staff at many FSA TABLE 1.12 county offices. According to the CRAT report, the lack of diversity at local FSA offices has an ad- FSA County Committee Members by Race, Sex, and verse affect on agriculture program delivery. Ethnicity, 1996: Southeast Region of the United States "Underrepresentation of minorities on county Males Females committees and on county staffs means minority White 2,287 121 and female producers hear less aboutprograms
Black 27 1 and have a more difficult time participating in Hispanic 21 7 USDA programs because they lack specific in- Asian American/Pacific Islander 1 0 formation on available services."263 However, American Indian/Alaskan Native 4 0 Ben Burkett, a member of the Mississippi Asso- ciation of Cooperatives, recommended one possi- SOURCE: U.S.Department Of Agriculture, Civil Rights Action Team, ble solution to this problem, which would be to Civil Rights at the United States Department of Agriculture,Febru- ary 1997, p. 19. construct a local five-member committee.264 He explained that three of the members could be Similarly, John Boyd, president of the Na-elected from the general farming community, tional Black Farmers Association, informed theand two could be appointed by the Secretary of Commission that local county offices primarily do the USDA or the state director.265 not reflect minority participation.260 Regarding data he obtained from a Mississippi state office, Lack of Enforcement of Civil Rights Laws Mr. Boyd stated: The trend of lack of enforcement of civil rights laws in USDA's programs continues even Out of 80 [agricultural] committees [in Mississippi's/ after intervention by .USDA's Civil Rights Action 82 counties, there are] only two with elected minority Team. In 1982, the director of FmHA's Equal participation in the whole state of Mississippi. Out ofOpportunity Staff admitted his office was "in no the 80, 78 have [an] appointed minority advisor,position to enforce compliance with civil rights which is a position that doesn't carry a vote. Andwe laws."266 Eight years later, the acting director of advocate that there's no need for being there, youUSDA's Office of Advocacy and Enterprisecon- know.261 firmed in writing that FSA was "frequently in Moreover, Mr. Boyd emphasized: noncompliance with civil rights compliance at the local level."267 That committee in the county is probably the most Later in 1995, the GAO reviewed USDA's ef- powerful committee when you get down to agricul- fectiveness in enforcing civil rights regulations. ture. They set the program that's going to come inIt concluded that at the USDA, there are "no that county; they do the hiring for that local office. formal mechanisms to hold... agency heads ac- There's five employees in there. They determine who countable for the success of their agencies' EEO is going to be hired, [and] if [land is going] to be de- [equal employment opportunity]/affirmative em- clared a disaster in that area... . That county com- ployment programs."268 In 1997, Civil Rights Ac- mittee [has] to say this county should be declareda tion Team findings indicated that senior USDA disaster.... So when a farmer come[s] in there and applies there,. .. say he want[s] to stop erosion on his farm, this committee has to certify first of all that he's 262 Ibid. an eligible producer in that county. Then [the corn- 263 USDA/CRAT,Civil Rights,p. 26. 264 Burkett Testimony, Hearing Transcript, pp. 610-11. 265 Ibid., p. 611. 260 Ibid., p. 614. Mr. Burkett estimates that there are only 266 USCCR, The Decline of Black Farming, p. 151. about eight African Americans out of a total of approxi- 267 The Minority Farmer: A Disappearing American Re- mately 80 staff and supervisors in local FSA offices in Mis- source; Has the Farmers Home Administration Been the sissippi. Primary Catalyst? H.R.REP.NO. 101-984 (1990). 261 John Boyd Testimony, Hearing Transcript, pp. 599-600. 268 USDA/CRAT, Civil Rights, p. 9.
32
4 4 managers do not assist in preparing Affirmativeowned by his father.274 In 1984, Charlie Feather- Employment Programs (AEPs). AEPs serve to'stone, a white supervisor at the Brunswick eliminate the underrepresentation of women andCounty FmHA officeallegedly required Mr. people of color in an agency's work force.269 Fur- Brown to keep his loan in a restricted account thermore, GAO revealed that "officials with the that needed the FmHA's supervisor's signature authority to make personnel decisions regardingfor any banking withdrawals.275 When Mr. employment, job assignments, training, promo-Brown attempted to obtain his funds to rent a tions, and terminations at the USDA and the barn to dry his crop, Mr. Featherstone could not other agencies were rarely involved in the proc- be located in person or by telephone.276 The to- ess of identifying barriers and actions to improvebacco crop eventually was ruined, and Mr. the representation of women and people of colorBrown was later unable to obtain further loans in their agencies."2" from the FmHA office. As a result, Mr. Brown The CRAT report also indicated that thefiled a discrimination complaint against the problem of lack of enforcement of civil rightsUSDA in 1984. In 1998, Mr. Brown received an laws exists from senior management levels downinitial response from the Department, which in- through local USDA agencies. The assistant sec-dicated that its Office of Civil Rights was still retary for administration (ASA) is primarily re- processing his complaint.277 sponsible for ensuring that all of USDA's agen- Moreover, John Boyd testified at the March cies comply with these regulations.271 However, 1997 Commission hearing about the number of the report noted: complaints that have yet to be documented by USDA officials and resolved: [T]he ASA is not involved in the performance ap- praisal process for the agency heads and senior execu- [There is] a backlog of complaints that I was told was tives (other than those in Departmental Administra- in the neighborhood of 2,000, and when I had a tion) whose actionsat least on civil rightsthe of- chance to review the inspector general's report, there fice ostensibly oversees. ..Accountability at the was only 241 complaints listed there. There are some highest levels should cascade down through agencies' farmers in here today that I know have affirmative organizational structures, where field supervisorsfindings of discrimination. Mr. Eddie Ross from Mis- provide direct service to the public. However, without sissippi. His name is not on this surplus list for set- measurable goals, agencies have no way of effectivelytlement or to be even addressed. I mean, what's going assessing whether or not they are making progress.272 to happen to all these farmers that already lost their farms through the hands of discrimination at the De- Backlog of Complaints Filed Against the USDA partment of Agriculture?278 The significant backlog of unresolved dis- crimination complaints against the USDA is an ongoing reality for black farmers, who fmd 274 CBS, "60 Minutes," Nov. 29, 1998. themselves without appropriate economic and 276 Ibid. 276 Ibid. "[Mr.] Featherstone also denies charges from black technicalassistancefromtheDepartment. farmers that he would routinely sleep in his office while Moreover, Secretary Glickman has conceded that they waited outside to see him. [He explained], 'Sometimes the Department has discriminated against black when I had to think of something, or do ... quite a bit of farmers in the past and in recent times.273 This calculations in my head, sometimes atmosphere pressures treatment is illustrated in the case of Calvin would close my eyes to do that.' " Ibid. Brown: Mr. Brown farmed tobacco on land in 277 Ibid. Brunswick County, Virginia, that was previously 278 Boyd Testimony, Hearing Transcript, p. 594. Mr. Boyd stated, "My particular case has been at the Department for 5% years. They [the USDA] said I've been discriminated against. Even though your loans were approved, Mr. Boyd, we didn't fund them three years in a row. So they found in 268 Ibid. favor of discrimination. They said that we'll offer you some 278 Ibid. type of settlement, some type of debt relief, compensation. 271 Ibid., p. 11. None of these things have taken place. Why? .. . I think that all these casesif this was a group of white individuals the 272 Ibid. federal government would have stepped in and taken care of 273 Jane lle Carter, "USDA Civil Rights Office 'in Disarray,' them years ago." Ibid. See also Clubb, "Glickman Hears." Inspector Says; Task Force Urged," The Washington Post, "Abraham Carpenter, Jr. farms 1,000 acres of produce in Oct. 2, 1998, p. A21 (hereafter cited as Carter, "USDA in Grady, Arkansas. He says the USDA has withheld payments Disarray"). due him for three years." Ibid.
33 4 5 Later, USDA's Inspector General Roger Via- Similarly, evidence suggests that a number of dero released a report in October 1998 whichfarmers are dissatisfied with the Department's revealed that the Department's civil rights office appeals process to rulings on farm loans and continues to make little progress in resolvingcomplaints of discrimination. Ben Burkett's view these complaints.278 This investigation indicated also reflected this sentiment: that as of September 1998, there w6re 616 unre- solved cases. These complaints were organized When ...[the Mississippi Association of Coopera- in "case files too slovenly to ensure the availabil- tives] go[es] to hearings with farmers on loan applica- tion[s] or discrimination, we follow procedure. We go ity of critical documents."280 In addition, Inspec- through the hearing process. We go through the ap- tor General Viadero reported that many of the peal hearing process and ...when we finish the proc- civil rights adjudicators, who were in charge of ess, still that farmer does not receive adequate com- serious cases, were student interns and staff pensation for his effort.284 members with little or no training. 281 Conse- quently, the inspector general recommended re- LloydShaffer,aBentonia,Mississippi, moving the civil rights jurisdiction from the De-farmer maintained that a reason for the lack of partment's Office of Civil Rights, employing anfaith in USDA's complaint procedures is proba- outside task force to review and resolve thesebly due to the Department's current policy.285 cases, and creating a position of assistant secre-Specifically, he explained that an individual ini- tary of civil rights.282 tially files a complaint with local county authori- ties. Difficulties arise because these local com- Inefficiencies In USDA's Complaint Process mittees are composed of those farmers who own The Civil Rights Action Team provided a de- large farms and receive the guaranteed loans. In tailed account of USDA's appeals process for cus-Yazoo County, Mississippi, county committee tomers who file a complaint: members are elected by proxy vote, and most county boards continue to have a majority of When USDA denies a loan, payment, or any otherwhite members.286 benefit, the customer almost always has appeal rights. Agency appeals processes vary, typically, an Inadequate Outreach and Technical Training appeal goes to a higher level agency official in the county, State, or region, and then to the agency's na- Many authorities have documented the im- tional office or to the Department. Until 1995, FmHA portance of farmers having access to available and ...FSA appeals processes were handled entirely technical training and assistance in order to be within the agency. If the customer did not agree withaware of new agricultural advancements. This the national decision, the only appeal was to theaccess to information and assistance is particu- courts. ... [M]anyfarmers, especially small farmers, larly critical for African American and other who have managed to appeal their cases to FSA small farmers, who have historically been denied charge that even when decisions are overturned, local offices often do not honor the decision. They claiman equitable level of federal support.287 During that decisions favoring farmers are simply "not en- the Belzoni, Mississippi, USDA listening session, forced." Farmers also mentioned the backlog andspeakers commented that there were funding length of time needed to appeal, and the lack ofdiscrepancies among the various land grant in- timely communication to inform them of the status ofstitutions that provide needed technical assis- their cases.283 tance to area farmers. They asserted that finan-
279 Carter, "USDA in Disarray." statistically significant difference among the outcomes of 288 Ibid. white male, female, and minority farmers' complaints. 281 Ibid. 284 Burkett Testimony, Hearing Transcript, p. 580. 282 Ibid. The proposed task force would be composed of civil 288 Shaffer Interview. rights staff from other federal agencies and senior USDA personnel. In response, Secretary Glickman indicated that 288 Ibid. In the past, Mr. Shaffer indicated that black farm- he would request permission from Congress to create the ers were unaware of the process to obtain membership on new civil rights position, but he did not support the outside county boards. task force recommendation. 287 See Brown, Christy, and Gebremedhin, "Structural 283 USDA/CRAT, Civil Rights, p. 23. But see ibid., p. 23. A Changes," p. 62; Patricia E. McLean-Meyinsse and Adell Brown Jr., "Survival Strategies of Successful Black Farm- 1996 D.J. Miller Report indicated that when minority farm- ers did use the USDA's appeals system, there was not a ers," Review of Black Political Economy, Spring 1994, p. 78. 34
4 6 cial support should be assigned in proportion to In contrast, African American farmers often did the number of minority farmers in Mississippi.288 not have equal access to these opportunities, In addition, the CRAT report also found thatwhich diminished their likelihood of obtaining people of color and small farmers are usually notfarm loans, equipment, and technical expertise in represented on research and education advisorya timely fashion. Moreover, they also faced overt boards. It suggested that there would probablydiscriminatory actions in lending and agricultural be more participation from people of color ifsupport services that led to the demise of black- these committees were more diverse.289 More- owned farms. These barriers continue today. over, Ben Burkett, a witness at the Commis- Without appropriate technical assistance and sion's Mississippi hearing, contended countyfinancial support, African American farmers in FSA offices provide limited technical assistance the Mississippi Delta often experience lending to area minority farmers. According to Mr.difficulties and significant loan debt. More re- Burkett, FSA office personnel fail to communi- cently, legislative developments, such as the cate effectively with black farmers and often1996 FAIR Act, also affect black farmers' ability make recommendations to black small farm to maintain their farms successfully by eliminat- owners that are detrimental to their financialing leaseback-buyback options and restricting interests, e.g., recommending the farmers rentdebt forgiveness eligibility and FSA direct oper- rather than purchase machinery. Mr. Burkettating and emergency loans. However, one inter- recommended the USDA initiate a national out- vention initiative, Alcorn University's coopera- reach effort to educate these consumers.290 tive extension program, is successful in assisting minority and small farmers in various Missis- Conclusion sippi counties in improving their cash flow, di- A variety of factors have been attributed toversifying their crops, and acquiring farm loans. the significant loss of black-owned farmland in Subsequent legal action in the Williams v. the Mississippi Delta. One of these contributors, Glickman case and Pigford v. Glickman class the U.S. Department of Agriculture, plays aaction suit, as well as criticisms voiced in na- primary role in offering technical and economictionwide "listening sessions," emphasized the support to the nation's farmers. Specifically, need for the USDA to address and resolve black USDA's Office for Civil Rights Enforcementfarmers' and African American USDA staff monitors the Department's civil rights activities members' past and current complaints of dis- and programs, and farming credit assistance is criminatory treatment from USDA officials. In offered through USDA's Farmers Home Admini- response, the USDA offered the Pigford class stration/Farm Service Agency. Historically, ruralaction plaintiffs a settlement and ultimately ac- development initiatives originated from univer- knowledged that the Department has subjected sity-based land grant and cooperative extension black and other minority farmers to unfair prac- programs. They were the result of the First and tices. The Department has also issued a number Second Morrill Acts in the 1800s and the 1914of findings and recommendations to ensure im- Smith-Lever Act, which provided southern farm-partial services for everyone. Despite these ef- ers with their initial opportunity to learn currentforts, black farmers in the Mississippi Delta still agricultural advancements through county USDA await equitable treatment, appropriate technical offices. This information often enhanced farmers'assistance, and fair lending practices from the agricultural yield and farm management skills. USDA.
288 USDA/CRAT, Civil Rights, p. 28. 289 Ibid., pp. 28-29. 299 Burkett Testimony, Hearing Transcript, pp. 615-16.
35 4 7 CHAPTER 2 Race and the Public Education System in Mississippi
ELEMENTARY AND SECONDARY EDUCATION sippi's children at a substantial disadvantage Scholars have warned that absent innovativecompared with the rest of the nation. policy changes, Mississippi and the rural South will face a work force crisis as a result of the Background globalization of the regional economy and the In 1990, 75.2 percent of the total U.S. popula- shift away from unskilled industrial labor.' Mis-tion had a high school diploma or higher educa- sissippi currently lacks the skilled and educatedtional attainment. This figure was 77.9 percent workers necessary to stimulate vigorous eco- for whites and 63.1 percent for blacks. In Missis- nomic growth. The state has long been charac-sippi, however, the figures were much lower terized by an out-migration of talent from the with a rate of 64.3 percent for the total state region, with a corresponding "brain drain" eachpopulation, including 71.7 percent for whites and year of college students who elect to leave the47.3 percent for blacks. The gap between educa- Delta upon graduation.2 According to the CEO of tional achievement in Mississippi and the rest of one Delta corporation, Mississippi is confronting the nation and that between black and white a "horrific" problem in the area of public educa- Mississippians are equally dramatic for those tion, and as a result, he rejects nearly two-thirdswith a bachelor's degree or higher. Compared of job applicants to his company because they arewith 20.3 percent of the total U.S. population, unable to meet his company's hiring criteria.3 only 14.7 percent of the Mississippi population One of the biggest challenges facing the Mis-had a bachelor's degree or higher. Nationwide sissippi public school system today is poverty. the figures for whites and blacks were 21.5 per- According to Dr. James Hemphill, special assis- cent and 11.4 percent, respectively, compared tant to the state superintendent and director ofwith 17.2 percent of Mississippi whites and 8.8 external relations of the Mississippi State De- percent of Mississippi blacks. Only Arkansas and partment of Education, this is particularly evi-West Virginia lagged behind Mississippi in dent in the Delta where the economy is so de- equivalent educational attainment.6 pleted that obtaining a quality education is ex- In 1995, the national high school graduation tremely difficult.4 High rates of poverty coupled rate was about 86 percentthe same level as in with a legacy ,of unequal educational opportuni- 1990.6 In contrast, Mississippi had a graduation ties for people of color, who make up more than rate of 75 percent in 1995.7 And that number one-third of the population, have left Missis-
George B. Autry and Dr. C.E. Bishop, MapFacts: Workforce Preparation, series no. 1 (Jackson, MS: Foundation for the Mid South, February 1994). 5 U.S. Department of Education, Digest of Education Statis- 2 See Dr. Arthur G. Cosby, ed., and others, "Framing the tics 1995, p. 21, table 12 (hereafter cited as DOEd, Digest of Future: Views on the Future of the Mississippi Delta," A Education Statistics). Social and Economic Portrait of the Mississippi Delta, Mis- 6 Rene Sanchez, "Education Endeavor Falling Short: 10-Year sissippi State University, December 1992. Campaign to Improve Nation's Schools Shows Few Gains," 3 Roger Malkin, CEO, Delta and Pine Land Co., Scott, MS, The Washington Post, Nov. 10, 1995, p. A3. telephone interview, July 19, 1996. 7 See generally State of Mississippi, Department of Educa- 4 Dr. James Hemphill, special assistant to the state superin- tion, Office of Accountability Reporting, Mississippi Report tendent of education, telephone interview, July 19, 1996. Card '95 (hereafter cited as Report Card '95). 36
4 8 had declined to 73.8 percent by 1998.8 Althoughcil of Chief State School Officers estimates that the total number of public high school graduates'88.7 percent of Mississippi's school-age children is projected to increase 20 percent betweenare in public schools compared with the national 1995-1996 and 2007-2008, in Mississippi the average of 90 percent.18 total number is expected to decrease 1 percent.8 Failing to complete high school has a direct im- Quality of Education pact on a person's potential for financial stability Testimony at the Mississippi Delta hearing and success. In 1992, for example, high schoolbrought forth a harsh indictment of the Missis- dropouts were three times more likely to receivesippi public school system. Roger Malkin, chair- income from AFDC or public assistance thanman of the Delta and Pine Land Company in high school graduates who did not go on to col-Scott, Mississippi, testified that his company, dur- lege (17 percent versus 6 percent).18 And in 1998, ing the hiring process, has found that many young high school graduates nationwide had an unem-people applying for work with a high school di- ployment rate of 4 percent compared with 7.1ploma are "functionally illiterate."" Mr. Malkin percent for those who had not completed hightestified, "I think it's a tragedy, and I'm here as a school." U.S. citizen, a Mississippi citizen, and I think that Education constitutes a major expense forpublic education in the United States is appall- Mississippi. In fiscal year 1995, Mississippiing, and we have to do something about it."18 spent $1.478 billion on education or 58.7 percent As in many high poverty areas, many Missis- of all general fund appropriations.12 The Missis- sippi public schools are characterized by dilapi- sippi public school system comprises 149 school dated buildings and insufficient resources. In districts and three agricultural high schools,June 1995, the State Department of Education which in 1995 served 503,301 elementary andvisited,unannounced,the Quitman County secondary students.13 It is difficult to approxi-schools and found filthy buildings, truant stu- mate the number of private school students indents, and "depressing and appalling condi- the state because various sources provide differ- tions?"9 Clearly, the physical conditions of a ent figures. The U.S. Department of Educationschool settingincluding lighting, air and venti- estimates that in 1993, Mississippi had 221 pri- lation, classroom space, and outside distrac- vate elementary and secondary schools thattionscan play a role in the educational proc- served 58,655 students.14 More recently, the ess.20Many schools in the Delta were built in the Mississippi Private School Association was esti-1940s and 1950s and have not been properly mated to have 90 member schools representingmaintained.21 Furthermore, it has been esti- 36,000-37,000 students, and the state's Catholicmated that 30 percent of all Delta schools need schools, which do not belong to the association,additional classroom space to accommodate stu- were calculatedtorepresent an additional dents adequately.22 10,000 students.18 Overall, the Mississippi Coun- Mississippi uses a performance-based ac- creditation system to evaluate its school dis- 8 State of Mississippi, Department of Education, Office of tricts. The accreditation levels are from level 1, Accountability Reporting, Mississippi Report Card '99 (here- which is probation, to level 5, which is excellent. after cited as Report Card '99). A level 3 is considered successful. For 1995, only 9 U.S. Department of Education, The Condition of Educa- tion, 1999, table 51. 19 U.S. Department of Education, The Condition of Educa- 16 Ibid. tion, 1995, indicator 32. 17 Roger Malkin, testimony before the U.S. Commission on Civil Rights, hearing, Greenville, MS, Mar. 6-8, 1997, " U.S. Department of Education, The Condition of Educa- transcript, p. 57 (hereafter cited as Hearing Transcript). tion, 1999, table 385. 12 Sid Salter, "Education Emerging as Most Defining Issue 18 Ibid. in Governor's Race," The Scott County Times, July 9, 1995, 19 See Larry Hailey, "Capacity of the School Systems," A p. 3A. Social and Economic Portrait of the Mississippi Delta, Mis- " Report Card '95, p. sissippi State University, December 1992. 14 DOEd, Digest of Education Statistics, table 62, p. 73. 29 Ibid., p. 109. 16 Cathy Hayden, "Public vs. Private Schools Issue Still Kin- 21 Ibid., p. 121; Malkin Testimony, Hearing Transcript, p. dles Passions in Mississippi," The Clarion-Ledger, July 16, 149. 1996, p. 6A. 22 Hailey, "Capacity of the School Systems," p. 109. 37 4 9 one school district received a 5, and 19 school65 counties that elect, rather than appoint, their districts were ranked at level 4. The majority ofschool superintendents. This is more thanany school districts, 90 in total, fell into the 3-3.9 other state.28 While many of the top performing range. Twenty-four schools received a perform-districts have appointed superintendents, and ance index between 2 and 2.9, and 19 received awhile many of the worst performing districts performance index between 1 and 1.9.23 Of those have elected superintendents,23 testimony at the 19 low-scoring districts, 10 were located in theMississippi Delta hearing suggested that data on Delta or its periphery.24 The student perform- this matter are inconclusive.30 ance in Tunica County, for example, has been so Testimony at the hearing suggested that al- poor that the district has been under state over- lowing appointment rather than election ofsu- sight since March 1997.25 perintendents would "infuse and in fact give the Generally, the literature on whether studentdistrict the ability to go outside the county lines performance is correlated with spending hasto attract an effective leader."31 Dr. Ron Love, been contradictory.26 Tables 2.1 and 2.2 showdeputy superintendent, State Department of that the average total per pupil expenditure forEducation, testified that the most significant the top 10 performing school districts is $3,963 drawbacks of electing the school superintendent and for the bottom 10 districts, the figure isis that "the talent pool that you've got to select $4,509. Thus, on average, the lowest rankingfrom has got to live right there next door to you, districts spend more money per pupil than theand be affected by all the local politics in that top performing districts. community. So it can be very difficult for them to Unlike other states, Mississippi has not ex- get some new blood into the community. perienced an eruption of equity funding law- But according to Dr. Hattie Nalls of the Ado- suits. This may be attributable in part to thelescent Family Life Institute, Inc., both elected State Legislature implementing, over the gover-and appointed officials are subject to the same nor's veto, the Mississippi Adequate Educationpolitical influences.33 Although she said the Program. This program seeks to ensure thatcommunity has a larger voice in the election of every school district will receive "sufficient" local officials, "even in that, a lot of manipulation funds to provide an adequate education. Thegoes on," with some ministers, for example, en- state will provide an increase of at least 8 per-couraging their parishioners to vote for a par- cent for education services in every district. The ticular person.34 And her criticism of appointed program, implemented in 1998, will continue to officials was similarly harsh because, based on Dr. be phased in over a six-year period, and will tar- Nails' observations, many appointed positions are get an additional $130 million annually to edu- decided "before it gets into the chamber."35 cation needs throughout the state.27 Testimony at the hearing suggested that only Another factor affecting student achievementa small minority of the 15,000 school districts is the efficiency of the school district administra- around the nation have kept the position of su- tion, including superintendents. Mississippi hasperintendent as an elected' one. And yet nearly half of Mississippi's school districts-63 out of 149have kept the position elected rather than 23 Report Card '95, p. ill. appointed.36 24 Ibid. 25 Cathy Hayden, "Delta Schools Search for Answers," The Clarion-Ledger Internet Edition, Dec. 21, 1999,
38
5 0 TABLE 2.1 Top Ten Performing Mississippi School Districts
Performance Total per pupil State and local Federal Rank In School district index expenditure revenue revenue spending State average N/A $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 86.8 13.2 59 Clinton 4.9 3,644 93.0 7.0 141 Ocean Springs 4.9 3,704 93.5 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 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.
TABLE 2.2 Bottom Ten Performing Mississippi School Districts
Performance Total per pupil State and local Federal Rank in School district Index expenditure revenue revenue 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 80.6 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.
39 51 It was reported at the hearing that whileportunities for educationally deprived children. there have been proposals before the State Leg- Funding levels are calculated based on thenum- islature nearly every year to mandate theap- ber of low-income children in the school district. pointment of school superintendents instead ofThe Title I program supplements local school election, the proposals "just don't quite makeefforts to improve the basic and advanced skills it."37 The state is currently focusing on improv-of students at risk of school failure. ing the skills of its local school administrators TitleI funds reach approximately 14,000 whether elected or appointed.38 school districts and serve more than six million Several educators and community leaderschildren annually. Since TitleI's enactment, suggested that the educational process mustCongress has appropriated almost $97 billion to take place in the home as well as in the schools.local school districts.42 In 1995, Mississippire- Municipal judge and attorney Clell Ward statedceived almost $122 million in TitleI funds, in his interview with Commission staff: which were distributed to 719 schools serving 246,524 schoolchildren. Approximately 75 per- We can't solve the problem through the school system. cent of the funds were used for classroom in- Parents need to have an understanding as to the im- portance of education first, and that might entailstruction.43 In 1996, disbursements to Missis- some sort of program to train parents in conjunction sippi increased to $126.4 million." with a program to reduce teenage pregnancy. We A 1993 U.S. Department of Education study need to train parents how to be parents and instill of Title I' found that recipients of services under values.39 the program in schools where at least three quarters of the children were poor scored sub- Similarly, Dr. Martha Cheney, project coor-stantially lower in math and reading thanre- dinator for the Mississippi Public Education Fo-cipients attending schools where fewer than half rum, a private foundation funded by the state's were poor.48 Many of the Delta school districts business community, believes that there must bethat continue to perform poorly rely heavilyon a stronger focus on the "basics," which includesfederal funds." For many school districts,re- parents talking to their young children in theceipt of Title I funds drive their per-pupil expen- home during their preschool years.4° ditures above the state average. There appears to be disagreement among Funding, Resources, and Equal Opportunity education leaders as to the costs and benefits Title I of the Elementary and Secondary associated with accepting Title I funds. Dr. Mar- Education Act garet Cheney, project coordinator of the Missis- The Elementary and Secondary Educationsippi Public Education Forum, argues that resi- Act,41 enacted in 1965, established several pro-dents of the Delta see the federal government as grams that provided federal funds to local schoola "sugar daddy" because of the substantial fed- districts. Title I of the act created a programeral assistance received under Title I and from specifically designed to improve educational op- the National Science Foundation:17 42 U.S. Department of Education, Title I Grants to Local 37 Ibid., p. 198. Dr. Cheney testified that the issue of electing Educational Agencies, p. 1. superintendents had been considered by the State Legisla- 43 Report Card '95. ture "ad nauseam," but the measure is never passed, largely because the chairman of the House Education Committee 44 U.S. Department of Education, FY 1996 Title I Alloca- "very strongly and philosophically believes in the election of tions. In 1995, the poverty percentage to qualify for school- school superintendents." Ibid., p. 199. wide programs was 60 percent. In 1996 and thereafter, the poverty percentage decreased to 50 percent. Mary Jean 311 Andrew Muffins, special assistant to the chancellor, Uni- LeTendre, "The New Title I, Helping Disadvantaged Chil- versity of Mississippi, telephone interview, July 2, 1996 dren Meet High Standards," The Title I Times, U.S. De- (hereafter cited as the Mullins Interview). partment of Education, April 1995, p. 14. 33 Clell Ward, telephone interview, July 29, 1996 (hereafter 45 See U.S. Department of Education, Targeting, Formula cited as Ward Interview). and Resource Allocation Issues: Focusing Federal Funds 40 Martha Cheney, project coordinator, Public Education Where the Needs are Greatest, 1993. See also Constance Forum, Jackson, MS, telephone interview, July 17, 1996 Johnson and Penny Loeb, "Stupid Spending Tricks," US (hereafter cited as Cheney Interview). News & World Report, July 18, 1994, p. 26. 41 Act of Sept. 30, 1950, Pub. L. No. 874 (codified as 46 Ibid.; see table 2.2. amended at 20 U.S.C. §§ 236-244). 47 Cheney Interview. 40
5 2 But Dr. James Hemphill and Dr. Ron Love, In 1997, the State Legislature approved a both special assistants to the state superinten-three-year initiative to raise teacher salaries 10 dent, point to the benefits of federal funding. Dr.percent, but even these raises are not expected Hemphill testified at the Mississippi Delta hear- to make Mississippi's average teacher salary ing that Title I funding "absolutely" plays a rolecompetitive with those in other states.57 The in raising student achievement levels in poverty State Department of Education maintains that areas.48 He believes that, without it, Mississippi while increased teacher pay was the primary public schools would be in "desperate shape."43legislative goal to address these concerns, there Dr. Love arrived at the same conclusion.50 The are other efforts underway to address teacher single criticism with how the money is spent inpay in a systematic way, which is essential in the state of Mississippi was put forth by Dr. recruiting and retaining teachers.53 Hemphill, who testified that the funds should be On May 1, 2000, Mississippi Governor Ronnie focused earlier in a child's education.51 Musgrove signed a bill into law that gives teach- ers a 30 percent pay raise to be phased in over Mississippi Teachers the next six years.53 But teachers are disap- In 1994, the U.S. Department of Educationpointed because of a provision in the new law released a report finding that public schoolthat requires the state revenue to increase by 5 teacher salaries in rural settings are severalpercent before the raises are given.60 And al- thousand dollars lower on average than in met- though Governor Musgrove has promised to ask ropolitan areas.52 For the 1993-1994 academicthe Legislature next year to remove the revenue year, the average annual salary for teachers na-requirement, Maryann Graczyk, president of the tionwide was $36,846.53 For the same year, Mis-Mississippi American Federation of Teachers, sissippi had the lowest average salary for publicsaid, "A lot of teachers do not have faith in the school teachers, $25,715.54 These numbers haveLegislature because of past broken promises. increased only slightly: in 1998 the national aver-Some look at [the raise package] as another set age was $37,560, and the average in Mississippi of broken promises ."61 was $27,720.55 Moreover, Mississippi's entry-level Testimony at the Mississippi Delta hearing salary for teachers ranked near the bottom atsuggested that if all the graduates of Missis- $18,833.56 sippi's 15 public and private education schools stayed to teach in Mississippi public schools (currently less than two-thirds of the graduates 48 James Hemphill Testimony, Hearing Transcript, p. 112. remain in-state), it still would not be enough to 49 Ibid., p. 85. fill the void left by the teachers who are begin- 69 Love Testimony, Hearing Transcript, p. 113. Dr. Love ning to retire.62 Current stopgap measures in- 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 67 Public Education Forum of Mississippi, "Quality Teachers, who had insufficient funds to do the kinds of things that Every Child's Educational Birthright," Jackson, MS, No- they needed to do." Ibid. vember 1998, p. 10. 61 Hemphill Testimony, Hearing Transcript, p. 135. 68 Richard L. Thompson, state superintendent of education, 62 Rene Sanchez, "Rural Schools Can't Get Teacher's Atten- letter to Ruby G. Moy, staff director, U.S. Commission on tion," The Washington Post, June 19, 1996, p. A14. Civil Rights, Apr. 19, 1999. In the letter, Mr. Thompson points to the following evidence of these efforts: an annual 53 DOEd, Digest of Education Statistics, p. 85, table 77. salary supplement of $6,000 is paid to teachers who acquire 54 Ibid. In the competition for teachers, some districts have National Board certification; state funding from the Legisla- tried to attract new teachers with incentives. For example, ture was made available to implement the Mentor Teacher Sunflower County added a $400 supplement to the 1995 Program; and the State Department of Education applied for 1996 starting teacher salary of $20,500 in order to recruit discretionary funding under the Teacher Quality Enhance- teachers to the county. Such efforts, however, are reportedly ment Grant Programs to recruit and retain teachers in criti- insufficient for many rural schools where the teacher reten- cal teacher shortage areas. tion rate is only one or two years. Rene Sanchez, "Staying the Course, Rookie Bucks Rural Trend to Teach and Run," 69 Gina Holland, "Teachers Warily Celebrate Raise," The The Washington Post, June 19, 1996, p. Al. Sun Herald,n.d.,
41 clude the use of approximately 1,500 teacherslow-income areas such as the Delta. Dr. Love who have been awarded emergency teaching cer-testified, "You can [have] a district that's 97 per- tificates, as well as a large number of "long-termcent black and at least 50 percent or more fac- substitutes."63 ulty will be white."63 The current shortage of minority teachers is particularly acute. Minority students only ac- Mississippi Teaching Corps count for about one-tenth of the students in Dr. Mullins, former special assistant to the teachereducationcoursesinMississippi.64 state superintendent of schools, testified at the Moreover, many African American educationMississippi Delta hearing about the Mississippi students, especially those toward the top of theTeaching Corps, which offers structured entry class, are recruited, with higher pay and betterinto the teaching profession for liberal arts benefits packages, to work at schools outside graduates from all over the country who have Mississippi.65 strong backgrounds in math, natural sciences, or Dr. Andrew Mullins, former special assistantforeign languages. The program, which requires to the state superintendent of schools, notes that a two-year commitment, combines full-time he has seen a precipitous drop in the number ofteaching with working toward a master's degree minority teachers obtaining certification. More- in education. The degree program, financed by over, testimony delivered in the Mississippi Deltathe state, includes summer study with a small hearing emphasized that many of the poorest stip end.70 school districts, with the highest concentrations In the summer prior to the first academic of minority students, are also the ones grapplingyear, the teachers are required to enter into a with the most severe teacher shortages:66 certification process at the University of Missis- sippi at Oxford. Afterwards, the recruits are as- There is a severe shortage of teachers in [the Missis- signed to the most impoverished schools, which sippi Delta]. In many cases there is a warm body or are primarily in the Delta. On the weekends, no body to instruct the children. We have seen a re- they return to the university to work on their cent precipitous decline in the number of minority teachers and the number of minority teachers state- master's degrees. Approximately 25 students wide applying for certification. The number of black enroll each year. In 1997, the class of 22 Teach- applicants continues to decline. It is difficult to at- ing Corps students included two African Ameri- tract white teachers to all-black districts in many can teachers.n cases. These factors, coupled with experienced teach- Members of the Mississippi Teaching Corps ers retiring earlier, teachers leaving the professionare required to teach for a minimum of two due to classroom discipline problems, inadequate ad- years. Of the 25 teachers who were beginning ministrators and little or no parental support, create a real and worsening crisis for many of our Delta their second year in 1997, five said they would schools.67 be staying to teach for a third year. However, testimony at the hearing suggested that many Finally, the hearing testimony indicated thatCorps teachers "leave pretty discouraged by the despite the fact that schools with high percent- situation that they find themselves in."72 ages of black students see the need for African American teacher role models,65 meeting that Mississippi Critical Teacher Shortage Act of 1998 objective is becoming increasingly difficult in The state is now aware of the critical need for teachers, and it has funded several creative pro- grams to help address the problem. These pro- 63 Ibid. grams include the following: 64 Martha Cheney Testimony, Hearing Transcript, p. 179. 65 See Hemphill Testimony and Cheney Testimony, Hearing Critical Needs Teacher Scholarship Pro- Transcript, pp. 106, 180. Testimony given at the hearing suggested that increased opportunities in other higher pay- gram.73 This program provides full scholar- ing professions lead many young blacks to avoid the educa- tion profession altogether. Mullins Testimony, Hearing 69 Love Testimony, Hearing Transcript, p. 111. Transcript, p. 109. 79 Mullins Testimony, Hearing Transcript, pp. 111-12. 66 Love Testimony, Hearing Transcript, p. 108. 71 Ibid., p. 112. 67 Mullins Testimony, Hearing Transcript, p. 76. 72 Ibid., p. 116. 68 Ibid., p. 110. 73 Hemphill Testimony, Hearing Transcript, p. 145. 42
5 4 ships (tuition, room, meals, books, materials,were "inadequate salary," "discipline problems," and fees) for full- or part-time students will-and "better job opportunities."78 During the hear- ing to teach in geographical shortage areas.74 ing, the following were suggested as possible rea- William Winter Scholarship Fund.75 Under sons why teachers are leaving the profession: this program, if a newly minted teacher agrees to teach for one year in both a subject High pupil-to-teacher ratio.79 There was tes- and geographic "shortage" area, the state timony at the hearing that a high pupil-to- will repay two years of that teacher's educa- teacher ratio, especially when there is a wide tional training.78 divergence of talent in the classroom, can University Assisted Teacher Recruitment and lead to discipline problems and other stress Retention Grant Program. This program factors that can contribute to a teacher's de- provides scholarships to teachers in shortage cision to leave the classroom.80 areas to seek a graduate degree. Reducing years of service required before re- Relocation Grant/ Reimbursement of Inter- tirement from 30 years to 25 years. Some ar- view Expenses. One-time grant for teachers gue this is good because it allows teachers moving to teacher shortage areas and reim- who are "burned out"or those teachers who bursement of expenses incurred during the are merely biding their time until they can interview process at districts' discretion. retireto go ahead and leave.81 Thus, lower- Mississippi Employer-Assisted Housing ing the minimum number of "years of ser- Teacher Program. This program is a special vice" required for retirement can entice un- home loan program for teachers agreeing to productive teachers to leave the profession.82 serve in shortage areas. However, this policy change can also lead to Mississippi School Administrator Sabbatical a loss of highly productive teachers: Many Program. This program reimburses the sal- teachers, when they reach their 25th year of ary and fringe benefits (for one year) paid to teaching, will retire from the state and then teachers completing an approved full-time go teach in a private school or across the line administrator preparation program. in another state. They can then draw re- tirement benefits from their 25-year teach- 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 78Ibid., p. 9. convened a task force in 1998 to examine factors 78On Oct. 21, 1998, President Clinton signed into law the contributing to public school educators leaving Class Size Reduction Initiative. School districts received a total of $1.2 billion in school year 1999-2000 to hire more the profession.77 The task force determined that than 30,000 new teachers in the early grades. This is the the three highest factors, in descending order, 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 74There was testimony at the hearing that some teachers in $19,208,820 will enable an estimated 494 new teachers to be Mississippi have been seeking relief from student loan debt employed. Ibid., p. 12. through bankruptcy proceedings, suggesting that increased 88Mullins Testimony, Hearing Transcript, pp. 102-03, 106. state funding of teacher-training scholarship programs At the hearing, Commission Vice Chair Reynoso asked Dr. might be helpful in convincing college students to enter the Mullins why teachers in the Mississippi Teacher Corps pro- historically moderate-paying field of teaching. Buck Testi- gram become cynical shortly after being placed into the mony and Cheney Testimony, Hearing Transcript, p. 196. classroom. Dr. Mullins reported that many teachers "have 75Hemphill Testimony and Mullins Testimony, Hearing the look of shell shock victims in their eyes" shortly after Transcript, pp. 123, 141-42, 145. entering the classroom setting because student reading lev- els within a single class of 30 students, for example, might 76It was pointed out during the hearing that the state has "a lot of potential teachers that go begging because there's range from fifth grade to college readiness. Ibid., p. 114. not enough money in the William Winter Scholarship Pro- 81Commission Chairperson Berry stated during the hearing: gram to give them a scholarship, and they qualify for it." "In most school districts across the country one of the sig- Mullins Testimony, Hearing Transcript, p. 124. nificant problems is teachers who have been on the job a long time, who are burned out, and they would like to have 77The task force issued a report in November 1998 titled Quality Teachers, Every Child's Educational Birthright. It is early retirement plans so that they can retire them out ... available from the Public Education Forum of Mississippi, and get some new blood. ." Hearing Transcript, p. 139. Jackson, MS. 82Mullins Testimony, Hearing Transcript, p. 115. 43
5 3 ing career in Mississippi, in addition to a Er le Johnston, former state director of the salary from another school or state." controversialMississippiStateSovereignty Poor administrator support and mentoring.Commission (1963-1968), writes that no state Some of the Mississippi Teacher Corps teach-fought harder than Mississippi after Brown to ers have reported that they are placed into athwart integration and discourage blacks from classroom with little or no help from theenrolling in all-white public schools." Only after school administrator or from fellow teachers, the U.S. Supreme Court's rulings in two other even though everyone knows the teachers important school desegregation cases, Greenv. have no classroom experience." There was County School Board of New Kent County81 and also testimony at the Mississippi Delta hear-in Alexander v. Hohnes92a full 15years after ing on the importance of implementing aBrowndid Mississippiseriously begin the "master teacher" program that would provideprocess of integrating its public school system. mentoring to new teachers. Each new teacher By that point, white flight may have rendered would be assigned an experienced "master schoolintegrationplanslargelyineffective. teacher" for one year, who could nurture theThere was significant white flight to private new teacher's growth and advancement asschools in the 1960s and 1970s, and to predomi- an educational leader in the school." nantly white suburban communities in the 1980s and 1990s. Indeed, white flight now has left Mis- Desegregation of the Public Schools sissippi public schools not much more racially Mississippi has had a history of denying diverse than they were before desegregation be- equal educational opportunities to its minoritygan." children. For the first 50 odd years of this cen- A dramatic rise in private all-white schools in tury, Mississippi's system of public educationMississippi occurred in the late 1960s. In the was one of "separate and unequal" for blacks."1963-1964 school year, there were only 17 pri- In 1916, the per capita expenditure for eachvate schools, enrolling 2,362 students (916 of white child of school age in Mississippi waswhom were black). By September 1970, there $10.60, and for each black child, $2.26. In 1939, were 155 private non-Catholic schools, with an for every $9.88 spent for white instruction, $1 estimated student population of 42,000.94 In the was spent on blacks. The 1943 ratios were $8.27Jackson school district, 9,000 of its 39,000 stu- to $1.75 for whites and blacks, respectively.57 In dents left the public school system from Septem- anticipation of Brown v. Board of Education,88ber 1969 to September 1971.95 and hoping to weaken the case against segrega- A white journalist who was a first grader in tion, the state enacted legislation calling forLeland, Mississippi, a small Delta town that be- equal resources for both black and white chil- gan its first year of integration in 1971, wrote: dren and attempted to promote a public educa- tion system that was "separate but equal."99 After the Court's ruling, a flood of hysterical white Mississippi families fled to newly created segregation- ist academies-schools with Confederate-colonel mas- 83 Ibid., p. 105. cots and rebel flag logos.... For white Mississippians 84 Ibid., p. 115. who considered themselves enlightened, the idea of 86 Ibid., p. 142. sending their children to all-white private schools 86 As Dr. Hemphill stated during the hearing: "I had a very twenty-five years ago was taboo... But today, those difficult time personally early in the [school desegregation] crude segregationist trappings have largely fallen process wondering why separate but equal wasn't a satisfac- away. ... Today, many of the children of the early tory solution. ... Just a short while after I transferred over to the black high school in Starkville I understood why sepa- rate but equal was not a viable solution. It did not take long to 9° Ibid., p. ziii. realize that the separate and equal concept was separate and equal had nothing to do with it." Hearing Transcript, p. 79. 91 391 U.S. 430 (1968). 87 Charles H. Wilson Sr., Education For Negroes in Missis- 92 396 U.S. 19 (1969). sippi Since 1910 (Boston: Meador Publishing Company, 93 Cathy Hayden, "White Flight Reverses Desegregation 1947), p. 58. Efforts," The Clarion-Ledger, July 9, 1995, p. 1A (hereafter 88 347 U.S. 483 (1954). cited as Hayden, "White Flight"). 89 Er le Johnston, Mississippi's Defiant Years (Forest, MS: 94 See Norwood v. Harrison, 413 U.S. 455, 457 (1973). Lake Harbour Publishers, 1990) p. 3. 95 Hayden, "White Flight," p. 1A. 44
5 6 white graduates of Leland's integrated public schools complained about the lack of a black doctor in town, are attending private academies.96 adding that a non-white physician would have trouble attracting white patients. When a white man in the As one black state legislator explained it: "We audience stood to proclaim that it was his "freedom" to wave the Confederate flag at Ole Miss football just all quietly go about our own way. Folks fromgames, a white student responded by saying that the academy ask me from time to time if I can most students would appreciate it if he did not.'" help them find any good black children ...I say 'What for?' "97 This same sentiment was ex- Some observers maintain that for both blacks pressed in an interview shortly before the Mis-and whites there is social pressure not to send sissippi Delta hearing by Robert Davis, a profes-their children to schools where they will be in sor of law at the University of Mississippi, whothe minority.101 Moreover, testimony at the Mis- was an expert witness at the hearing: sissippi Delta hearing points out that as private schools flourish in a given community, support When it comes to interacting socially, the atmosphere in Mississippi is different from other parts of the for the public schools can wane. Dr. Love, special country. The different races are not comfortable withassistant to the state superintendent, stated: each otherseparation seems to be promoted in dif- ferent ways, including in professional groups, in so-I think the most dramatic impact the private schools cial groups, in churches, etc. You basically have two [have] on public schools ha [s] to do with divided loyal- societies that go about their lives and only get to-ties and community support for your public schools. gether when they have to. People don't seem to wantI've worked in districts where there was very little bridges built." private schooling, like Tupelo, and we enjoyed a great deal of communitywide [support] from local busi- Of course, there was also testimony at thenesses and others. I think in the Delta on the other hand ... you mayhave divided loyalties. ...And that hearing to suggest that important social interac-I think is the most crucial factor in terms of develop- tion is starting to take place among the races. ment of academies versus some other things. That's According to Dr. William Sutton, president ofwhere the impact tends to be most negative.'" historicallyblackMississippiValleyState University: Robert Buck, counsel for the Greenville Pub- lic School District Board of Trustees, testified I can see some changes ... in thecommunities and that he, too, believes private academies can the rotary clubs and on bank boards and also in thedrain away support from the public school sys- chambers of commerce that we are beginning to par- ticipate a bit more, and that will help, but we have atem, especially due to the economic burden long ways to go." placed upon parents who send their children to private schools: In March 1998, members of President Clin- If you have persons who pull their children out of a ton's Advisory Board on Race gathered at theschool system into a separate school system, as a re- University of Mississippi for a forum dedicated sult of the desegregation of public schools that took to gauging the community's progress on race. place in the '60s and the '70s, you have those persons One newspaper reported that "the old South and now having to devote their resources to support the the new one clashed": _private academies, and at the same time pay. ad A black student and a white student from Oxford High School declared their friendship with a heartfelt 100 Kevin Sack, "In the South, the Past is Present," The St. hug, but also pointed out that black and white stu- Petersburg Times, Mar. 29, 1998, p. ID. At the same forum, it was reported that former Governor William Winter, a dents segregated themselves at lunch. Black speakers 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 discus- 96 Douglas A. Blackmon, "The Resegregation of a Southern sion was being held at the University of Mississippi, a place School," Harper's Magazine, September 1992, pp. 15-17. with a history of racial strife. The university's chancellor, 97 Rene Sanchez, "Academies are Final Bastions of Sepa- Robert Khayat, who has tried to tone down Confederate rateness," The Washington Post, July 17, 1996, p. Al. symbolism at the school, said events in the South "move 99 Robert N. Davis, University of Mississippi, associate pro- forward and backward, seldom in a straight line." Ibid. fessor of law, telephone interview, July 25, 1996. 101 Ward Interview. 99 Sutton Testimony, Hearing Transcript, p. 250. 192 Love Testimony, Hearing Transcript, p. 93.
45 5 7 valorem taxes to support the public school system. Iboard reach an agreement, the plan must then think it almost necessarily follows that those persons be approved by a federal judge.109 whose resources are now being stretched are going to be opposed to anything that would mean an increase Some observers consider Brown v. Board of Education the "moral pinnacle" in the struggle in tax rates... It certainly is my impression, based on my observation and also the impression of manyfor equality of opportunity between whites and people that I talk to that in fact there has been an African Americans.1" Others view public school adverse effect upon support for public education as a desegregation as destructive to black identity result of the proliferation of private academies.103 and destructive to black control of the educa- tional process for their children." Whatever The problems surrounding the increase ofone's view, it is clear that efforts to desegregate predominately white private academies havepublic schools in the Delta have largely failed. plagued one small community in Tunica County Dr. Arthur G. Cosby, a sociologist at Mississippi for several years. Most residents of TunicaState University, suggests that the failure of the County are black, poor, and poorly educated.104Mississippi school system to achieve integration In Robinsonville, a small unincorporated area inhas had a negative impact on education overall. Tunica County, local officials are planning toHe argues that while it appears that there are build an $8 million state-of-the-art elementarysubstantial resources being spent on education, school for students in the area. At first glance,these resources are greatly fragmented, result- the proposed plan would appear to directly bene-ing in a wasteful duplication of effort, a failure fit the residents of Robinsonville. But in the areato achieve economies of scale, and suboptimal immediately surrounding the property whereresults from the resources that are spent."2 the school is to be built, an upscale residential development is also scheduled to be built.105 This The Link between Community Leadership, development will undoubtedly attract higherSuccessful Schools, and Integration income white families. As a result, area resi- Dr. Hemphill testified that community lead- dents have organized with state and local offi-ership is absolutely paramount to successful cials to oppose the school, which many view as schools: another plan to perpetuate the pattern of segre- gation that exists across the region.106 We see many times that the most important reason Because Tunica County schools are operating students are not achieving is leadership, not necessar- under a 1970 mandatory desegregation order, ily funding, but leadership, and not necessarily educa- the school board has to get approval from the tional leadership, but leadership in the communities. You have a community that expects a school district Department of Justice before it can build a newto provide a superior product, you'll have a good schoo1.107 To date, the Justice Department has school district. If you have a community that doesn't refused to approve the plan, noting the likeli- expect that, then they probably will not do it."3 hood that the new school would be populated by the predominately white residents of the sur- Roger Malkin, chairman of the Delta and rounding residential development, and recom-Pine Land Company in Scott, Mississippi, testi- mended other sites for the proposed plan thatfied that he thought part of the problem with had a higher percentage of black students.108publiceducationatleastinthecityof Even if the Justice Department and the schoolGreenvillewas that the all-black school board
1°3 Ibid. 110 Wendy R. Brown, "School Desegregation Litigation: 103 Buck Testimony, Hearing Transcript, pp. 170-71. Crossroads or Dead End?' St. Louis University Law Journal, vol. 37 (1993), pp. 923, 937. 104 Bob Herbert, "Mississippi Learning," The New York Times, May 13, 1999, p. A31. 111 See Alvis v. Adair, Desegregation, The Illusion of Black Progress (Lanham, MD: University Press of America, Inc., 105 Ibid. 1984). 106 Sam Skolnik, "Mississippi 1999: New Era, Old Fight," 112 Cosby, "Framing the Future," p. 323. Legal Times, Aug. 2, 1999. 113 Hemphill Testimony, Hearing Transcript, p. 89. Dr. 107 Bob Herbert, "Haunted by Segregation," The New York Hemphill argues that Hollandale, one of the poorest school Times, May 16, 1999, p. 17. districts in Mississippi, is an example of an excellent school 108 Skolnik, "Mississippi 1999." district that has excellent leadership. Ibid., p. 91. 46
58 "is in favor of mediocrity, they're not particularly chial students are black,122 and that less than 2 in favor of excellence."114 Mr. Malkin argued that percent of the private academy students are there was a "leadership problem" in the black black.123 community, and he expressed discouragement But these numbers fail to illustrate the point over his belief that "the blacks who have made that schools in some parts of the state are much it, and there are a lot of ...financially successful more segregated and homogeneous than in oth- blacks in Greenville, they never show up at public ers. In the Delta, many of the school districts are school meetings."u5 Furthermore, testified Mr. 95, 96, and 97 percent black.124 Dr. Love testified Malkin, commitments to desegregation and inte-at the Mississippi Delta hearing, "If you spent gration would not take place until the public most of your life in the Delta, you [would] think schools improved: every public school in the state was all black."25 Dr. Mullins concluded that in the Delta, "[a]ll What we must do everywhere in the United States is the whites went to private schools."126 we've got to improve public education so it is a bar- gain. People don't think they're getting their money's Resegregation of the Public Schools worth any more, white and black, and I think the criti- cal thing is to improve education in the public sector The resegregation of children in America's and they will come. Build it and they will come. 116 schools has increased progressively since the 1980s. According to Harvard University educa- But according to Dr. Mullins, schools in thetion professor Gary Orfield, segregation of blacks region have always been lacking. 117 He explained in the South declined dramatically from the mid- in a recent Mississippi news article, "You had an 1960s through the early 1970s, was stable until all white Legislature, with only one or two 1988, and has been rising since that time.127 Or- blacks as late as 1968. There wasn't much inter- field reports that in 1991-1992, 36.6 percent of est in improving the schools."118 In describingblack Mississippi students were in schools with one of the reasons that black schools were sys- 90-100 percent minority populations.125 tematically neglected and underfunded, Dr. Mul- The typical white student in a Mississippi lins said, "You didn't want to educate a goodpublic school attended a school with an average field worker because they'd leave the field."19 population of 31.5 percent black students.129 In In Mississippi, it is estimated that there aretotal, blacks make up 51 percent of the total pub- approximately 500,000 students in the publiclic school population in Mississippi. Of the public school system (K-12), and approximately 50,000 in nonpublic schools (including approximately 35,000 in private academies, 10,000 in parochial 122 Mullins Testimony, Hearing Transcript, p. 94. 123 Ibid., p. 95. Dr. Love testified that "many of [the acad- schools,and2,000studentsinEpiscopal emies] would claim to have open door policies or a vast ma- schools).128 It is estimated that approximately 50 jority of them will claim that they do. Nobody walks in but percent of the public school students are black,121 they're open." Love Testimony, Hearing Transcript, p. 129. that approximately 25 to 30 percent of the paro- 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 114 Malkin Testimony, Hearing Transcript, p. 190. As an southern part of the state, while the western side of the example of favoring mediocrity, Mr. Malkin said that it was statefrom Tunica down to Woodville along the riveris "outrageous" that the Greenville School Board opposed cre- "predominantly black." Ibid. ating a magnet school "because they're afraid it's only being 126 Ibid. See also testimony of Mr. Buck, who reported that used to attract whites." Ibid. Mr. Malkin argued that mag- "almost all" of the white school-age children in Greenville, net schools are part of "the perfect setting for overachievers Mississippi, attend private academies because that school to settle and raise their children," and are therefore neces- district is "ninety-something percent black." Buck Testi- sary to entice business elites to the area. Ibid., p. 192. mony, Hearing Transcript, pp. 169-70. 116 Ibid., p. 190. 127 Gary Orfield, The Growth of Segregation in American 116 Ibid., pp. 201-02. Schools: Changing Patterns of Separation and Poverty Since 117 Hayden, "Delta Schools Search for Answers." 1968, Council of Urban Boards of Education Steering Com- mittee, December 1993, p. 1. 118 Ibid. 128 Ibid. Illinois, Michigan, New York, New Jersey, Pennsyl- "3 Ibid. vania, Tennessee, Alabama, Maryland, and Connecticut all 120 Hemphill Testimony, Hearing Transcript, p. 95. had higher percentages of segregation than Mississippi. 121 Ibid., p. 96. 123 Ibid., p. 6. 47
5 9 TABLE 23 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. school districts, 67 are 60 percent or more blackindicates, these figures are representative of all and 56 are 60 percent or more white. Only 30 school districts in the Delta. school districts are close to being racially bal- Testimony at the Mississippi Delta hearing anced with a white/black ratio of 40 percentsuggested that it is unrealistic to imagine that white to 60 percent black.130 the private academies would ever be closed, In some parts of the state where privateleading to an integration of the public and pri- schools were created in direct response to the vate school systems.132 Dr. Mullins remarked: desegregation orders, whites have returned to the public schools. This is not the case in the I don't think that you can do that. I think that [it is] Delta, however, where the vast majority of white unrealistic to think of doing that. I think it's a waste children attend private or religious schools and of energy to even try to attempt to do that. The way black children attend schools that are over- you address that problem is to make your public schools as good as you can make them... These are whelmingly black public schools.131 For example, private entities and you start trying to interfere in in Holmes County, while the district populationtheir business, I think you'll see a backlash that will is 21.9 percent white, the public school K-12 en- hurt throughout the communities.133 rollment is only 0.1 percent white. As table 2.3
130 Hayden, "White Flight," p. 1A. 132 Mullins Testimony, Hearing Transcript, p. 130. 131 Mullins Interview. 133 Ibid.
48
60 Dr. Love concurred with this testimony, add-school districts throughout the state. According ing that if the predominantly black publicto Mr. Barber, "[i]t may not even be policy any schools improve, it might sway some white stu- more. It may be just the way the principal in dents to attend. However, Dr. Love cautionedthat school works....[T]here is a fair amount of that the integration would likely be modestgrouping and the lower groups tend to get say, moving a school from 97 percent black to 90trapped in it, tend to be the kids who get re- percent black.134 ferred to special education in about the fourth grade."138 Tracking Some argue that even when a school is Special Education numerically "integrated" with both black and There was testimony at the Mississippi Delta whitestudents attending the same school,hearing that an agreement had been signed be- resegregation can occur inside the schoolhousetween the state of Mississippi and the Office for walls if students are "tracked" into different Civil Rights (OCR), within the U.S. Department levels of courses. of Education, to address the problem of overrep- Testimony at the Mississippi Delta hearingresentation of minority students in special edu- regardingtrackingwascontradictory.Dr. cation classes."9 After investigating five school Hemphill testified that while tracking was a tooldistricts throughout the state, OCR found "sig- used early in the desegregation process, "I don'tnificant statistical disparities in the percentage think it happens much any more."135 Accordingof African American students being placed in to Dr. Hemphill, there is an accreditation sys-special education."140 Rims Barber, director of temor a performance-based system that ema-the Mississippi Human Services Agenda, testi- nated from the 1982 Education Reform Actfied that while the OCR agreement represented which was to improve the quality of educational"progress," programs and ensure equal access to a quality education for all students: the general culture is that certain kids get pushed into the slow reading class and then into the special We have people in every district evaluating the test- education class, at a certain age begin getting sus- ing procedures, and we the superintendent and thepended, and then expelled or put into an alternative State Board of Educationare extremely serious, and school.'" so anything like tracking or those kinds of things that might have once been out there, might not be the best 139 Ibid., p. 185. Mr. Barber painted the following grim sce- educative program, districts are quickly moving away nario during his testimony: "They get tracked in the first from that.136 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 However, Rims Barber, director of the Missis- and they often get stuck in the special education program. sippi Human Services Agenda, testified that he They get a little larger, they start saying what the heck, I was "surprised to hear" anyone say that tracking can't do this stuff.... they say something obscene in the classroom and get themselves tossed out for three days and has been phased out, saying, "We call them blue then it happens again, and pretty soon they say hey, it's birds and red birds and buzzards, right, but if more fun on the outside, why don't I stay here. ...[then you're in the buzzard class, you know where you they get rerouted into alternative schooling] or the prison belong, rightn37 system, whichever comes first." Ibid., pp. 185-86. Mr. Barber also testified that the closely re- 139 Love Testimony, Hearing Transcript, pp. 98-99. lated phenomenon of "ability grouping," or using 149 Ronald Roach, "The Enforcer: An Interview with Ray- mond C. Pierce," Black Issues In Higher Education, July 24, a test to divide the students into different groups 1997, p. 38. Mr. Pierce, the deputy assistant secretary for based on academic ability, occurs in "many" the Office for Civil Rights, states, "It is extremely important for parents and students and people who are concerned with 134 Ibid., p. 131. Dr. Love testified that "you have a number the educational plight of African Americans in the state of of these counties which by margin alone are between 51 and Mississippi to be very mindful of this agreement because we will need their eyes and ears. The federal government needs 70 percent black, so ... there's only so much integration [that] can be achieved in those particular numbers... ." Ibid. help on these things. We need partners. There are many people who have an interest in making sure all the children 135 Hemphill Testimony, Hearing Transcript, p. 97. in the state of Mississippi have access to quality education." 136 Ibid., pp. 97-98. Ibid. 137 Rims Barber Testimony, Hearing Transcript, p. 153. 141 Barber Testimony, Hearing Transcript, p. 153. 49
61 During the hearing, Robert Buck, counsel for Rims Barber testified that while he did not the Greenville Public School District Board ofhave definite statistics, the alternative schools Trustees, also testified that there was "certainlythat he observed were "overwhelmingly black."149 ...a problem with too many students being And according to Judith Browne, a senior attor- placed in special education."142 He said the prob- ney with the Advancement Project, a student's lem had been acknowledged by the Mississippirace may be a factor that influences a discipli- Board of Education and that there was an "ef-nary decision: fort" to deal with the problem: Inschooldistrictsacrossthecountry,African- The fact is a lot of students are placed in special edu- American and Latino children are constantly being cation because of cultural problems, environmental suspended for the more discretionary offenses, such problems, as opposed to learningthe ability to learn as "defiance of authority" and "disrespect of author- ... a distinction needs to be made when a child scores ity." These categories of conduct clearly provide more low on a test, whether the child is scoring low because latitude for racial bias to play a part in the use of dis- of a cultural background, environmental problems as ciplinary measures.'" opposed to the inability to learn.143 Historically,discipline problems in K-12 Alternative Schools were dealt with by suspending or expelling trou- Approximately one-fourth of 1 percent of thebled students.151 To address these discipline state's public school students are in alternativeproblems, the State Legislature's juvenile justice programs.144 However, these students are con-committeenottheeducationcommittee centrated in certain grades and geographic ar-spearheaded the effort to create alternative eas. There was testimony at the hearing to indi- schools for these students.152 cate that some geographic areas had 10 times As a result, Mississippi's school disciplinary the normal rate of placements,145 and thatactions have become increasingly harsh. Ms. placements to the programs tended to be "blackBrowne criticizedthe new "zerotolerance" male middle school students who are over agemeasures because. they "often fail to meet sound for their grade . . . having flunked once oreducational principles and, in many cases, their twice."146 Rims Barber testified that there were application simply defies common sense."153 Ms. racial and ethnic "tensions" that resulted from Browne added, "In many instances these policies this disparity, "particularly parent's who feel likearebeingunfairlyusedagainstAfrican- the system is not treating my boy fairly."147American and Latino children and children with There was testimony at the hearing that aboutspecial needs"154 Indeed, the quality of educa- half of the students placed into alternativetion that students receive at these alternative schools are black. Dr. Love, special assistant to schools leaves much to be desired. According to the state superintendent, commented: the Advancement Project, "[s]tudents at a Mis- sissippi alternative school meet their bus in front I would say 75 to 80 percent of those who are in pov- of the local police department, where they are erty are black. Those who come from broken homes disciplined by police officers, if necessary. .. and in some of the worst situations are black, and therefore, I think it's reasonable to assume those whoTeachers merely act as monitors. They provide get placed in alternative programs in larger numbers worksheets and grade them but do not explain are going to be black.'"
142 Buck Testimony, Hearing Transcript, p. 175. 143 Ibid., pp. 175-76. 143 Ibid., p. 154. 144 Barber Testimony, Hearing Transcript, p. 187. In the 150 Judith A. Browne, statement presented to the U.S. first half of the 1996-1997 academic school year, there were Commission on Civil Rights at briefing, "Civil Rights Impli- between 1,443 and 1,502 students placed into alternative cations of Zero Tolerance Programs," Feb. 18, 2000, pp. 3-4 school programs. Ibid., p. 186. (hereafter cited as Browne, Zero Tolerance Statement). 145 Ibid., p. 187. 151 Love Testimony, Hearing Transcript, p. 100. 146 Ibid. 152 Ibid., pp. 101, 154. 147 Ibid., p. 188. 153 Browne, Zero Tolerance Statement, p. 1. 148 Love Testimony, Hearing Transcript, p. 100. 154 Ibid. 50 the work."155 Thus, there is no evidence that stu- and the three principal cities that serve as mi- dents will benefit from the structure or sub-gratory points for rural people in the area stance of alternative school programs. including Greenville, Vicksburg, and Natchez In addition, the Advancement Project noted,have the highest suspension rates in the state, "The increase of criminal charges filed againstnearly three times the state average.166 He also children for in-school behavior has been one oftestified that it is extremely difficult to get "good the most detrimental effects of Zero Tolerancebaseline data" that would enable him to deter- Policies."56 In a recent case, five black teenagers mine how effective the alternative schools were at were arrested and charged with felony assault reducing student suspensions and expulsions.167 for throwing peanuts and pickles while on a school bus, after one of the peanuts accidentally Moore v. Dupree hit the school bus driver.157 Such a charge car- In June 1996, the U.S. Supreme Court con- ries up to a $1,000 fine and five years insidered the voting rights implications of the re- prison.158 The students were suspended frompeal of a law providing that school district bor- school and had their school bus privileges re-ders be automatically extended when land is an- voked.159 After an attorney intervened on the nexed by a municipality. In Moore v. Dupree,168 students' behalf, the criminal charges werethe Court unanimously upheld a 1993 district dropped, but the students later dropped out ofcourt decision that a repeal of Miss. Code Ann. § school due to a lack of transportation to their37-7-611 (1971), a part of Mississippi's 1986 Uni- school, which was 30 miles from their homes.'"form School Law, failed to comply with section 5 In another case, an 8-year-old in Mississippi wasof the Voting Rights Act of 1965, 42 U.S.C. § suspended in October 1999 for kicking his 1973c (1974). teacher.161 The child was not permitted to return Prior to 1986, section 37-7-611 had provided to school for the entire year, and he was toofor the automatic incorporation of the school dis- young to be sent to an alternative school.162 Ac-tricts of annexed land. In 1986, the State Legis- cording to Ms. Browne, these stories "exemplif[y] lature changed the law to permit municipal the extremely harsh disciplinary approach thatschool districts to expand their boundaries only has taken over in many school systems, and thewith the express consent of all school boards in- increasing invocation of the criminal justice sys- volve d.169 tem for minor school behavioral i55ue5."163 The voting rights issue focused on the fact Mr. Barber conducted a survey of the alterna- that annexed residents could decide not to be tive schools and concluded that "many of theincluded in a city school district but would still programs are not quality."164 She reported that be able to vote for city council members, who in one superintendent told his surveying team, "Iturn appoint the school board members. Thus, wouldn't put one of my good teachers over there the annexed residents could indirectly vote for with those kids."165 school board members of a school district to Mr. Barber also testified that alternative which they decided not to belong.170 schools were being used as a "dumping ground," 166 Ibid., pp. 154-55. 199 The Advancement Project, Opportunities Suspended: The 162 Ibid., p. 156. Mr. Barber testified that it "was impossible Devastating Consequences of Zero Tolerance and School to get good data, good baseline data to do a comparison to Discipline, June 2000, p. 12. see whether the effect [of implementing alternative schools] 196 Ibid., p. 13. was simply more kids being put in some alternative pro- gram, plus the same number being expelled, or was the al- 192 Tony Plonetski, "Peanut, Pickle Melee Could Mean Jail ternative program actually keeping kids who would have for 5," The Clarion-Ledger, Aug. 31, 1999, p. 1A. been expelled in the schools." Ibid. 199 Ibid. 169 517 U.S. 1241 (1996). 169 Browne, Zero Tolerance Statement, p. 3. 169 Miss. Code Ann. § 37-7-103 (1986). 169 Ibid. 179 Dupree v. Moore, 831 F. Supp. 1310, 1312 (1993). See 161 Ibid., p. 5. "Court Upholds Ruling on Miss. School Borders," The Legal 162 Ibid. Intelligencer, June 11, 1996, p. 6. See also 28 C.F.R. § 163 Ibid., p. 9. 51.13(d), (e) ("any change in the boundaries of voting pre- cincts ..., and [a]ny change in the constituencyof an offi- 164 Ibid., p. 154. cial or the boundaries of a voting unit ... requires preclear- 166 Ibid. ance").
51 6 3 The Supreme Court agreed with the lower the Greenville public school district. After desegrega- court's finding that the state attorney general tion, the Greenville school system has been more than had failed to preclear the statute as required by 90 percent minority, although the population is about 55 percent black. ... [W]e believe that the answer is Clark v. Roemer.'" Clark held that a state must that there was a trend all over the state wherein mu- "identify each change as necessary if the Attor- nicipal school districts were becoming majority black ney General is to perform his preclearance du- and there were annexations taking place in larger ties under § 5."172 areas, including Hattiesburg and Jackson. At the Michael Moore, the Mississippi attorney gen- same time, there were people moving out of the mu- eral, filed an action in the U.S. District Court ofnicipalities and into the suburban areas in an at- the District of Columbia requesting a declara- tempt to escape the municipal public school systems. tory judgment that the repealer law was in fact Those moves were being negated by virtue of the fact precleared. In response, the Mississippi State that the municipalities were expanding."7 Conference of the NAACP has adopted a resolu- And Mr. Buck reiterated this position at the tion stating its objection to the attorney gen-Mississippi Delta hearing when he said the fol- eral's proposed action.173 lowing about the motivation behind the 1986 The Dupree case, which involved the city ofrepeal: Hattiesburg, is not the only example of this phe- nomenon. A companion to Dupree involves the The underlying intent of the legislation was to make Greenville municipality and its attempts to an- it difficult for districts such as Greenville and Jackson nex the Western Line School District.174 In addi- and Hattiesburg, where you have fairly large urban tion, Jackson County is considering annexing populations, and where unfortunately the public school land in South Hinds County, which would effec- districts are 90 percent black, 97 percent black, and tively merge the Hinds County School District whatever, to make it difficult for those districts... to with that of Jackson.173 then expand their lines out into the county... The motivation behind [the legislation was] at least in The legislative purpose in ending the auto-part an effort to curb or to control the expansion of matic extension of school districts into annexed what I would classify as urban, largely minority dis- land is unclear. Some argue the legislative pur- tricts.'" pose is financial. When an urban district ex- pands into counties and rural areas, the effect is Mr. Buck testified that a single unitary sys- that the urban district takes up the tax base oftem of education would enhance the education of those outlying areas, making it more difficult for all the students.173 Despite economies of scale or the outlying districts to operate and fund them-other economic advantages that would result selves.176 from a unitary system of education,180 the politi- However, Robert Buck,counselforthe cal reality appears to be continued migration of Greenville Public School District Board of Trus- tees, attributes the legislative purpose of the 1986 repeal to something else: racism. In a tele- phone interview shortly before the Mississippi 177 Buck Interview. Delta hearing, Mr. Buck stated: 178 Buck Testimony, Hearing Transcript, pp. 166-67. 179 Ibid., p. 172. The reason for the opposition to the expansion of school districts is racial in a sense that white parents 189 Mr. Buck testified that "if you start off with a small pie and then you're splitting it up in five different ways ... as in annexed areas do not want to send their children to opposed to having all of those districts combined and con- solidated and utilizing the resources that are available to serve everyone and all of the children, I think that would be 171 500 U.S. 646, 659 (1991). far more effective." Mr. Buck argued that when Warren 172 Id. at 646. County consolidated with Vicksburg, it led to better facilities 173 Resolution of the Mississippi State Conference of the and improved education. Ibid., p. 164. 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.
52
6 4 whites out of the urban areas181 and continuing,historically white institutions, and averaged controversy over the 1986 repeal.182 nearly 98 percent black at each of the histori- In February 1997, the U.S. Supreme Courtcally black institutions.186 ruled, by a 7-2 vote, to allow the state of Missis- In 1975, the parent of a Jackson State Uni- sippi to continue enforcing the 1986 repeal.183versity student brought suit, claiming the state The U.S. Department of Justice subsequentlyof Mississippi had, for decades, underfunded its precleared the repealer on May 7, 1998, and thushistorically black public universities. The plain- effectively settled the lawsuit. tiff also argued that the state had not met the Brown v. Board of Education187 mandate to dis- HIGHER EDUCATION IN MISSISSIPPI mantle segregated education with all deliberate U.S. V. FORDICE speed.188TheplaintiffarguedMississippi's Background higher education system was in violation of the Mississippi's system of public four-year uni-5th, 9th, 13th, and 14th Amendments to the versities was segregated by race from its incep- United States Constitution; 42 U.S.C. §§ 1981 tion in 1848 until 1962, when the first black stu- and 1983; and Title VI of the Civil Rights Act of dent was admitted to the University of Missis- 1964, 42 U.S.C. §§ 2000d to 2000d-4a. The sippi by court order.184 United States intervened as plaintiff and alleged The racial identifiability of Mississippi's eight violations of the equal protection clause of the public universities changed little during the dec- 14th Amendment and Title VI.189 ade following the landmark admission of James For 12 years the parties attempted to resolve Meredith. The student composition of the Uni-their differences through a voluntary disman- versity of Mississippi, Mississippi State Univer- tling of the prior segregated system. Unable to sity, Mississippi University for Women, Univer- achieve ultimate agreement, the parties pro- sity of Southern Mississippi, and Delta State ceeded to trial in 1987. University (collectively, "historically white insti- The respondentsthe Board of Trustees of tutions" or "HWIs") remained almost entirelyState Institutions of Higher Learning (the Col- white, while that of Jackson State University,lege Board)190maintained that the state had Mississippi Valley State University, and Alcornmet the Brown mandate by adopting race- State University (collectively, "historically blackneutral policies. The U.S. District Court for the institutions" or "HBIs") remained almost entirely Northern District of Mississippl191 and the Fifth black.185 Circuit Court of Appealso2 applied their inter- Moreover, the racial identifiability of thesepretation of the standard established in Brown institutions persists: in the fall of 1996, the on-and concluded that the state had fulfilled its af- campus undergraduate enrollment ranged be-firmative duty to dismantle the former de jure tween 75 and 85 percent white at each of thesegregated system of higher education through
188 Ayers v. Fordice, 111 F.3d 1183, 1190, n. 1 (5th Cir. 181 Mr. Buck testified that "in Greenville and Jackson and 1997). See also Southern Education Foundation, Miles to Go: other fairly large urban areas in Mississippi ... there's been A Report On Black Students and Postsecondary Education migration of people out of the municipality into surrounding in the South, Atlanta, GA, 1998, p. A39. rural areas, which also ties us right back into the annexa- tion question ... and that's one of the reasons why you have 182 347 U.S. 483, 495 (1954) (Brown I). a lot of opposition to the expansion of school district lines 188 Brown v. Board of Education, 349 U.S. 294, 301 (1955) along with annexation lines. .. ." Ibid., pp. 171-72. (Brown II). 182 Municipal judge and attorney Clell Ward stated he was 189 United States v. Fordice, 112 S. Ct. 2727, 2732-33 (1992). not aware of a single black Mississippi legislator in office 199 The board is responsible for the management and control who had knowledge that the repeal was part of the Senate of the eight public universities at issue in this case. Miss. bill. According to Mr. Ward, one of the white state senators Code Ann. § 37-101-1 (1996). Its general powers and duties had inserted the legislation into a large package of repeal include, inter alio, managing all university property, dis- laws without the knowledge of any of the black legislators. bursing funds, establishing standards for admission and Ward Interview. graduation, and supervising the functioning of each institu- 183 Dupree v. Moore, 519 U.S. 1103 (1997). tion. Id. § 37-101-15 (1996). 184 See Meredith v. Fair, 305 F.2d 343, 344-45 (5th Cir. 191 Ayers v. Allain, 674 F. Supp. 1523, 1564 (N.D. Miss. 1962), cert. denied, 371 U.S. 828 (1962). 1987). 185 See United States v. Fordice, 505 U.S. 717, 722 (1992). 192 Ayers v. Allain, 914 F.2d 676, 692 (5th Cir. 1990).
53
6 5 its adoption and implementation of good-faith, for even though such policies may be race neutral on race-neutral policies and procedures in student their face, they substantially restrict a person's choice admissions and other areas. of which institution to enter, and they contribute to The U.S. Supreme Court granted certio- the racial identifiability of the eight public universi- ties. Mississippi must justify these policies or elimi- rari.193 The Supreme Court vacated the judg-nate them.'" ment and remanded for further proceedings, holding that the mere adoption and implementa- On remand, the district court ordered each party tion of race-neutral policies were insufficient toto submit proposed remedies. Without conceding demonstrate complete abandonment of the ra-liability, the College Board responded by pre- cially dual system.'" The Court stated: senting a detailed proposal for modification of the higher education system. Even after a State dismantles its segregative admis- sions policy, there may still be state action that is traceable to the State's prior de jure segregation and Implementation of U.S. v. Fordice that continues to foster segregation.... If policies In March 1995, U.S. District Court Judge traceable to the de jure system are still in force and Neal Biggers Jr. ruled that the state was per- have discriminatory effects, those policies too must bepetuating the vestiges of de jure segregation in reformed to the extent practicable and consistent with the areas of undergraduate admissions, institu- sound educational practices.195 tional mission assignments, funding, equipment availability, library allocations, program dupli- The application of the Brown principles to the cation, land grant programs, and number of uni- context of higher education was confirmed: seg- versities.199 regation and discriminatory policies that violate Judge Biggers ordered the state to spend the equal protection clause of the 14th Amend-more money to improve its historically black pub- ment may still exist in higher education even licuniversities.First,"diversity scholarships" after the removal of a de jure segregated sys- tem 196 would be funded to attract white students:199 Applying the new standard, the U.S. Su- In 1997 and 1998, each historically black in- preme Court identified admissions standards, stitution will spend approximately $150,000 program duplication, institutional mission as- on other-race diversity scholarships.290 signments, and continued operation of all eight public universities as a list of constitutionally Second, graduate programs would be added suspect remnants of the prior de jure system, at Alcorn State and Jackson State: For Alcorn State University, the judge or- dered the state to create a $5 million en- 166 Ayers v. Mabus, 499 U.S. 958 (1991). dowment, as well as matching grants of up 194 United States v. Fordice, 505 U.S. 717, 742-43 (1992). to $4 million, to enhance its Small Farm De- 05 Id. at 729. 166 The Court stated: "If the State perpetuates policies and practices traceable to its prior system that continue to have 197 Id. at 733. segregative effectswhether by influencing student enroll- 198 Ayers v. Fordice, 879 F. Supp. 1419, 1477 (N.D. Miss. ment decisions or by fostering segregation in other facets of the university systemand such policies are without sound 1995), affd in part, reu'd in part, remanded, 111 F.3d 1183 educational justification and can be practically eliminated, (5th Cir. 1997), cert. denied, 118 S. Ct. 871 (1998). the State has not satisfied its burden of proving that it has 166 The numbers of blacks or whites "enrolled" in a particu- dismantled its prior system. Such policies run afoul of the lar institution do not always convey a complete picture of Equal Protection Clause, even though the State has abol- how much integration is taking place on the campus. For ished the legal requirement that whites and blacks be edu- example, Dr. William Sutton, president of historically black cated separately and has established racially neutral poli- Mississippi Valley State University, reported that approxi- cies not animated by a discriminatory purpose. Because the mately 60 of MVSU's 2,200 students are white. He pointed standard applied by the District Court did not make these out, however, that only 15 or 18 of those white students are inquires, we hold that the Court of Appeals erred in affirm- on the main campus at Itta Bena; the rest are taking classes ing the District Court's ruling that the State had brought at a new off-site campus located several miles away in itself into compliance with the Equal Protection Clause in Greenwood. Sutton Testimony, Hearing Transcript, pp. 227, the operation of its higher education system." Id. at 731-32 232. (citations omitted). 200 Southern Education Foundation, Miles to Go, p. A36. 54
6 6 velopment Center. He also ordered the crea-Dr. Anderson argued that the evidence brought tion of an MBA program at Alcorn's off-before the court to demonstrate the existence of campus center in Natchez. discrimination and inequality was "as persuasive For Jackson State University, the judge or-as you'll ever get."205 According to Dr. Anderson, dered the state to spend $20 million to estab-the people involved in rectifying the situation lish an endowment and new programs in thewere able to look at 130 years of Jim Crow and fields of allied health (e.g., medical assistant),its negative impact on higher education, then social work, urban planning, and business."' address that negative impact with a "token rem- edy," and then "just move on." Dr. Anderson be- All these programs have been approved by thelieves that the various remedies put into place College Board and have been funded.202 were like "grains of sand on a beach of what was At historically black Mississippi Valley State needed to be done."206 University, Judge Biggers did not order the Dr. F. Kent Wyatt, president of historically creation of new programs or endowments, butwhite Delta State University, suggested that the state still decided to add graduate degreevery few people embrace wholeheartedly the programs in the areas of elementary educationFordice rulings.207 Robert Davis, associate pro- and criminal justice.203 fessor of law at the University of Mississippi Many African American citizens of Missis- School of Law and author of a law journal article sippi heralded the Fordice decision as a majortitled "The Quest for Equal Education in Missis- victory. Others, such as Dr. James D. Anderson,sippi: The Implications of United States v. Ford- professor of education at the University of Illi-ice,"208 said that dealing with the Fordice case nois and author of the book The Education ofand its aftermath "has been both a legal and a Blacks in the South, 1860-1935,204 compared thepolitical process; it's been impossible to reach a rulings in the case to "band-aids put on cancer."consensus on many of the issues involved, and many of the problems involved will probably never be fully resolved."2" 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 Scholarships Targeting White Students to June 1998 order of the district court, following a status con- Attend Historically Black Schools ference on the Fordice case, states that "the implementation and accreditation of bachelor's and master's programs in The idea of targeting scholarships to whites Business at Jackson State University has been achieved. to attract them to historically black colleges has Implementation of a Ph.D. program in Social Work at Jack- generated controversy. Janell Byrd, a lawyer son State University has been approved by the board and is with the NAACP Legal Defense and Education in the process of being implemented." The court order also states that studies have been conducted by the board "on Fund who specializes in higher education deseg- whether to implement certain programs at Jackson State regation cases, said it was "bizarre and ironic" University, including Engineering, Law and Pharmacy. ..." that the court favored race-conscious scholarship Ayers v. Fordice, No. 4:75CV009-B-0, at 2-3 (N.D. Miss. awards for whites and not for blacks, noting that June 4, 1998) (unpublished order). 202 The Mississippi commissioner of higher education re- ported that "WU of those programs have been approved by 206 James D. Anderson, professor of education, University of the Board and were funded this year at the rate of two mil- Illinois, telephone interview, July 25, 1996 (hereafter cited lion dollars for all six programs, to begin the first year of as Anderson Interview). Another witness testified that a implementation." Dr. Thomas Layzell, Mississippi commis- leading cause of the "dual structure" of the Delta is the "de sioner of higher education, Testimony, Hearing Transcript, jure problems in the past." Robert Davis Testimony, Hearing p. 220. Transcript, p. 284. 203 Sutton Testimony, Hearing Transcript, pp. 227-28. The 206 Anderson Interview. June 1998 order of the district court, following a status con- ference on the Fordice case, directed the board "to conduct a 207 F. Kent Wyatt, president, Delta State University, tele- study of programs that can be implemented at Mississippi phone interview, July 29, 1996 (hereafter cited as Wyatt Valley State University which will attract other-race stu- Interview). dents and so advise the court in a reasonable time...." 208 Robert Davis, "The Quest for Equal Education in Missis- Ayers v. Fordice, No. 4:75CV009-B-0, at 2-3 (N.D. Miss. sippi: The Implications of United States v. Fordice," Missis- June 4, 1998). sippi Law Journal, vol. 62 (1993), p. 405. 204 James D. Anderson, The Education of Blacks in the 206 Robert N. Davis, associate professor of law, University of South, 1860-1935 (Chapel Hill, NC: University of North Mississippi, telephone interview, July 25, 1996 (hereafter Carolina Press, 1988). cited as Davis Interview). 55
6 7 the federal courts in a recent Maryland court Howard University Law School professor Ken case210 have said that race-conscious scholar-Tollett Sr. appears to agree with Dr. Anderson, ships for blacks to attend white state collegessaying the Fordice decision "gives no considera- amounted to unconstitutional reverse discrimi- tion to the enhancement of schools for blacks. It nation.211 "At least [Fordice] seems tosay that itall has to do with attracting more whites to black is OK and constitutional to provide other-raceschools. I haven't seen anything about how to and race-conscious scholarships, and that isanbring more black students in to white schools. improvement over the Maryland ruling," Ms.The whole premise of the analysis is subtly Byrd said. "But in the long run [the Fordice] rul-white supremacist."216 ing doesn't seem to connect to the harm of lack of access for blacks to quality higher education thatSchool Closings and Mergers it was supposed to address."212 Judge Biggers stopped short of ordering the Dr. Thomas Layzell,Mississippi commis-closing of Mississippi Valley State University sioner of higher education, suggested that it(MVSU), whose enrollment is overwhelmingly might be quite some time"more than a few black, and merging it with predominantly white years"for the scholarships to cause any signifi-Delta State University (DSU), as the state had cant change toward integration, largely becauseproposed.217 Moreover, the judge directed in his it will take time for the historically black schoolsruling that the Mississippi College Board under- to add the professional programs and schoolstake further study of "any available education- mandated by Judge Biggers. Moreover, even af- ally sound alternatives" to the proposed consoli- ter these additions are made, it will take time fordation of the two schools.218 The resulting report, the schools to bolster their academic reputationstitled Transformation Through Collaboration: to the extent required to attract white scholar-Desegregating Higher Education in the Missis- ship recipients.213 Professor Davis suggested sippi Delta,219 which was issued in March 1996, that a degree from a historically black institu-concludes that: tion currently has a "crippling effect" on the graduate as he or she enters the job market.214 in fact, one College Board member has argued that the his- Dr. James D. Anderson, professor of educa- torically white institutions are able to attract the "best and tion at the University of Illinois, believes that the brightest" minority students by offering them scholar- ships to attend. J.P. Mills, member of the Mississippi Col- scholarships are a good idea, but asks why they lege Board, telephone interview, July 1, 1996 (hereafter cannot also be used to attract minority students cited as Mills Interview). to historically white institutions. "Why should 216 Ronald Roach and Cheryl D. Fields, "Mississippi Churn- the burden for integration fall on historically ing," Black Issues in Higher Education, May 15, 1997, p. 14. black schools? Why can'thistorically white 217 However, some people, including Fordice plaintiff attor- schools offer the same incentives for African ney Alvin 0. Chambliss Jr. and Joyce Payne, director of the public black college office of the National Association of American students to attend the historically State Universities and Land Grant Colleges, have criticized white institutions?" he asked.215 the judge for failing to give Mississippi Valley State more resources to attract white students and avoid closing in the 219 In Podberesky v. Kirwan, 38 F.3d 147, 159-62 (4th Cir. future. See Smothers, "Bias in State Universities," p. A14. 1994), cert. denied, 514 U.S. 1128 (1995) the appeals court 218 Ayers v. Fordice, 879 F. Supp. 1419, 1495 (N.D. Miss. rejected a University of Maryland minority scholarship pro- 1995). gram, in part because the court concluded the program was 219 The primary author of this report is Robert Kronley, not designed carefully enough to serve its stated remedial purposes. senior consultant to the BellSouth Foundation and the Southern Education Foundation (SEF), located in Atlanta, 211 Ronald Smothers, "Mississippi Mellows on Issue of Bias Georgia. The SEF is a public charity committed to develop- in State Universities," The New York Times, Mar. 13, 1995, ing educational opportunities for minorities and disadvan- p: A14 (hereafter cited as Smothers, "Bias in State Universi- taged citizens in the South. Robert Kronley, senior consult- ties"). ant, BellSouth Foundation and Southern Education Founda- 212 Ibid. tion, Testimony, Hearing Transcript, pp. 268-69; Southern Education Foundation, "Who We Are,"
Cs desegregated higher education in the Delta is not con-'There is no reason for the State to attempt to con- tingent upon consolidation of DSU and MVSU. Less tinue the financing of eight universities. Mississippi drastic, more practicable and educationally sound currently funds fifteen two-year colleges and eight alternatives are available. These alternatives can, four-year colleges. Mississippi is the poorest state in over time, promote quality desegregated education the country and the least able to fund the schools that where choice of institutions and success in them is not it supports. The State should work toward reducing dependent upon race. . the number of junior and senior colleges. This can be accomplished through merger, consolidation and clo- There is clearly disagreement within the Mis- sure.225 sissippi educational community regarding clos- ings and mergers of schools. On one hand, there Professor Davis reported that at the law is pressure to expand upon the current system byschool where he teaches, the University of Mis- creating university "satellite centers" throughoutsissippi, which draws students from all of the the state. One such center is being developed instate's public universities, the general quality of Greenville, Mississippi. Moreover, Dr. Layzell education and level of preparation are "mediocre indicated that there is enormous pressure to ex- at best."226 He suggested that the focus of the pand such programming to the Mississippi GulfFordice litigation has been on "preserving cer- Coast as well, as that is the fastest growing area tain interests today" rather than the "quality of in the state.221 Dr. William Sutton, president ofeducation 20 years from now."227 He believes historically black Mississippi Valley State Uni-that "radical changes" are necessary to improve versity, testified that such centers are beingthe quality of Mississippi's system of higher edu- opened throughout the state to enable full-time cation, and says that the current course of action working residents to also attend college.222 spurred by the court in Fordice will result in in- On the other hand, others argue that satellite significant changes: centers are not necessary and that some of the What I see happening 25 years from now is we will eight public universities should be merged or continue to tinker with improvements at a variety of consolidated. Robert Davis, professor of law at institutions. We will tinker with attempting to get the University of Mississippi, argued against white students to attend Mississippi Valley State. ... satellite centers because the state education sys- Or we will continue to tinker with improving Jackson tem "should not be driven by a goal for economic State. ... But the systemremains and these choices support."223 He believes the state university sys- that have been made historically by African American tem can be supportive of the economy by produc- students and majority students, I don't see how the tinkeringthat[Higher Education Commissioner ing highly skilled workers for businesses that Thomas Layzell] seems to be satisfied with will make want to locate to the state, adding that he has any major adjustment to how our students exercise talked to business leaders and companies that their choices, given the options.228 have decided against locating to Mississippi be- cause of the poor quality of education available Professor Davis argued that if a "consolida- in the state.224 Professor Davis wrote: tion approach" is not given serious thought and study, the problem will continue to present itself as "we deal with ill-prepared students from our 228 Robert A. Kronley, William A. Butts, and Walter Wash- ington, Transformation Through Collaboration: Desegregat- undergraduate institutions."223 Specifically, he ing Higher Education in the Mississippi Delta, 1996, p. i envisions a "unitary, statewide system" where (hereafter cited as Kronley, Butts, and Washington, Deseg- some of the current universities could be used as regating Higher Education in the Mississippi Delta). branch campuses, but where duplication, waste, 221 Layzell Testimony, Hearing Transcript, p. 261. 222 Sutton Testimony, Hearing Transcript, p. 262. high technology company. Malkin Testimony, Hearing Tran- 223 Davis Testimony, Hearing Transcript, pp. 319-20. script, p. 159. 224 Ibid., p. 320. Of course, there was testimony offered at 225 Davis, "Quest for Equal Education in Mississippi," p. 494. the Mississippi Delta Hearing arguing that the state educa- tion system can compete. Roger Malkin, chairman and CEO 226 Davis Testimony, Hearing Transcript, p. 266. of Mississippi's Delta and Pine Land Co., the world's leading 227 Ibid., p. 267. cotton seed grading technology company, testified that his 228 Ibid., p. 305. firm employs graduates of the local universities, especially Mississippi State, who meet the standards of his successful 228 Ibid., p. 280. 57
6 9 and inefficiency can be eliminated.230 According Rather than concentrating on merging insti- to Professor Davis, this waste includes "eighttutions, Dr. Layzell said, the College Board's college presidents...and all the attend[ant]view is to "make each one of these eight institu- administrative costs that go along with that."231 tions the best it can be at what it does."238 And Professor Davis argued that while sucha move this conclusion was reflected in a June 1998or- would be more costly initially, it would lead toder of the district court, following a statuscon- cost savings in the long run.232 Besides, he ar-ference on the Fordice case. The order stated gued, even if consolidation did not yielda mone-that "the court will no longer consider the tary savings, it should still be implemented inmerger of Mississippi Valley State University order to improve the quality of education and toand Delta State University, since the Board has bring about "the kind of quality....product thatstated to the court that this merger is notnow I think we all would be interested in seeingdeemed practical by the Board."239 here."233 Some have argued that school mergers and The chairperson of the U.S. Commission onclosings are more political than legal in nature, Civil Rights, Dr. Mary Frances Berry, asked and therefore should be decided by the Legisla- whether it is possible that the state of Missis-ture rather than the courts.240 Mark Musick, sippi was attempting to support too many publicpresident of the Southern Regional Education universities, diluting the quality of the educationBoard, an accrediting organization, saidone being provided. Dr. Berry said: thing that Judge Biggers' ruling showedwas that federal courts can be as reluctantas state How in the world does the state of Mississippi have legislatures and governors to close universities enough money to keep eight first-rate institutions ofand colleges: there are 38 historically black, pub- higher education going, when most states can't even licly financed universities or colleges in the 19 keep one going?... I mean, are we seeing here simply a perpetuation of the inequities of the past and a sort states that once had segregated higher education of dumbing down of higher education in Mississippi to systems, and in the last two decades of desegre- meet the requirements of what you can fund, and side gation efforts, none has been closed.2" stepping the whole issue of desegregation?234 288 Ibid. A review of studies of black public colleges con- Dr. Berry asked whether merging Delta State cludes as follows: "Our empirical analysis suggests that segregative effects notwithstanding, HBCUs are indeed and Mississippi Valley State universities would projects that improve social welfare, and rank favorably result in the creation of a "first-rate institution" relative to HWCUs. The formal result derived here also has and asked whether it is "racial divide and poli- implications for the proposed remedies in the Fordice case, tics" that are preventing such a merger.235 Dr. suggesting that HBCUs have a social value in the sense that in their absence, the stock of human capital would be lower. Thomas Layzell, the commissioner of higher Where social welfare is an increasing function of output, an education, replied that, in America, politics al- economy with HBCUs is better off than one without them. ways plays a role in higher education and that, Given that HBCUs provide a boost to the human capital besides, the consultants who looked at the issue endowments of black college students, the consequences of their closure or merger with HWCUs will be a lower long- of merging the two institutions determined that run growth rate." such a merger would be a poor choice from both The study goes on to state that "while our results suggest an economic and educational standpoint.236 Dr. that HBCUs enhance social welfare, they should not be in- Layzell said the issue of merger within the state terpreted to suggest that state political jurisdictions should of Mississippi "is dead, it's over with...we're operate and maintain a dual system of separate but equal moving on. We've got eight institutions."237 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 stu- 288 Ibid., p. 268. dents, then the choice of state political jurisdictions to oper- 231 Ibid., p. 280. ate and maintain HBCUs may have a sound educational 282 Ibid., p. 281. justification." Gregory N. Price, "Black Public Colleges and Universities as Projects: How Do They Rank Relative to 233 Ibid. White Public Colleges and Universities?" The Review of 234 Mary Frances Berry, Statement, Hearing Transcript, pp. Black Political Economy, vol. 24, no. 4 (Mar. 22, 1996), p. 65. 252-53. 239 Ayers v. Fordice, No. 4:75CV009-B-0, at 1 (N.D. Miss. 238 Ibid., pp. 253, 258-59. June 4, 1998). 238 Layzell Testimony, Hearing Transcript, p. 253. 248 Hawkins, "Fordice Decision," p. 6. 237 Ibid., p. 254. 241 Smothers, "Bias in State Universities," p. A14. 58
7 0 Robert Kronley, the primary author of Trans-the Delta, but she would be able to avail herself formation Through Collaboration: Desegregatingof whatever resources were present at any of Higher Education in the Mississippi Delta, inthem. So it would be almost a common market of explaining why the study recommended againstcourses of opportunity to students throughout consolidating Delta State University (DSU) andthe Delta. ..."246 Mississippi Valley State University (MVSU), painted a picture of schools with very different Increased Admissions Standards for faculty and student populations: Historically Black Schools Judge Biggers' decision imposes the same MVSU's student body is nearly 99 percentadmissions standards for all of Mississippi's in- black, compared with DSU, which is ap-stitutions of higher education. The new stan- proximately 26 percent black. dards evaluate students on a blend of high MVSU's entering class has lower ACT highschool grades, class rank, teacher evaluations, school achievement test scores. and scores on standardized American College MVSU's students come from lower economicTests (ACT). For years, admission was almost circumstances. solely tied to ACT scores, a minimum of 15 (the The faculties of the two institutions are "dif-top score is 36) at historically black universities ferent in terms of [educational] degrees" at-and 18 at the five historically white institutions. taine d.242 Differential admissions standards, according to the district court, "resulted in the 'channeling Moreover, Mr. Kronley reported that he hadeffect' described in Fordice,"247 which helped to reviewed testimony from the president of DSUmaintain a racially dual system. "which essentially said that were the institutions Under Judge Biggers' decision, high school consolidated, it would be very, very difficult forgraduates with at least a 3.2 GPA can gain many of the students traditionallyadmitted toautomatic admission to any of Mississippi's eight Valley to thrive and ...graduate at [DSU]."243universities. Those with at least a 2.5 GPA must Finally, Mr. Kronley studied the financial conse-score 16 or higher on the ACT.Students with a quences of combining the institutionsand con-2.0 GPA must score 18 or higher on the ACT. cluded that it would cost "significantly more The new admissions standards were chal- money"244 to consolidate than it would to investlenged, but the U.S. Supreme Court refused to in upgrading both institutions pursuant to theblock their enactment.248 Critics argued that final recommendations of his report.245 their impact would be dramatic: Fordice plaintiff While opposing outright consolidation, how- attorney Alvin Chambliss Jr. predicted that the ever, Mr. Kronley and his team ofresearchers dohigher standards would cause freshmen enroll- advocate something he calls a "Delta student."ments to drop 50 percent at Jackson State, Mis- Mr. Kronley defines such a student as one whosissippi Valley State, and Alcorn State universi- "would enroll at any institution, whether it's aties in 1996-1997; he said the new standards community college or a four-year institution in would "put the black schools behind 50 years."249 Robert Kronley argued that the raised admis- 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 246 Ibid., p. 295. report, requested by the College Board, responds to the fed- 247 Ayers v. Fordice, 879 F. Supp. 1419, 1434 (N.D. Miss. eral district court's directive to the board in its Mar. 10, 1995) (citing United States v. Fordice, 505 U.S. 717, 733-34 1995, Memorandum Opinion and Remedial Decree, to un- (1992)). dertake further study of "any available educationally sound 248 P. Applebome, "Mississippi's Black Colleges Fear Equal alternatives" to the proposed consolidation of Delta State Admission Standards, Some Say Enrollment Could Be Cut and Mississippi Valley State Universities. Ayers v. Fordice, In Halt" The Commercial Appeal, Apr. 28, 1996, p. A5. 879 F. Supp. 1419, 1495 (N.D. Miss. 1995). 246 A. Kanengiser, "High Court Lets Tougher Admission 243 Kron ley Testimony, Hearing Transcript, pp. 274-75. Rules Stand," The Clarion-Ledger, December 1995, p. Al. In 244 Mr. Kronley later stated that while he has determined the same article, Mr. Chambliss said that some people had there would be a "short-term" savings by not consolidating incorrectly perceived his position on the new admission the universities, he has not investigated the "long-term" rules as a desire "to have lower admission standards so financial ramifications. Ibid., pp. 322-23. black schools remain black enclaves." "That is not our posi- 245 Ibid., p. 276. tion," said Chambliss. Ibid. 59 71 sions standards put minority students at "greatsegregation in higher education to be made the risk."250 enemy of equality and opportunity."254 Proponents, on the other hand, saw the new Others disagree with this assessment. For standards as an effective and immediate meansexample, Dr. Leonard Haynes, a black college to rid the state of one of the vestiges of segrega-alumnus who serves as senior assistant to the tiondifferentialadmissionsrequirementspresident at American University in Washing- identified by the Supreme Court, as wellas anton, D.C., said he was confident that national opportunity to align Mississippi's universitieseducation reform could equalize educationalop- with national and regional trends toward higherportunities for students of color in K-12. "If the standards. K-12 system improves itself, implementing uni- The new standards were implemented in theform admissions standards in Mississippi's uni- fall of 1996. It has been reported by the South-versities won't be a problem," said Dr. Haynes, ern Education Foundation that between fallformerly the assistant secretary for postsecond- 1995 and fall 1996, full-time black freshman en-ary education during the Bush administration.255 rollmentatMississippi'spublicuniversitiesHowever, according to Robert Kronley, thereare dropped by 463 students, and most of the decline some real questions in the Mississippi Delta was at the three historically black universities:about whether public schools currently offercur- the number of black freshmen dropped by 12riculum of sufficient quality to prepare students percent at Alcorn State, by 24 percent at Jackson to meet the higher standards. More importantly, State, and by 27 percent at Mississippi Valleysaid Mr. Kronley, there is nothing in the current State.251 The foundation also reported, however,plan that calls for systematic cooperation be- that this decline has been partially offset by in- tween K-12 education and higher education to creasing numbers of black freshmen enrolling atensure that there will be a change in the current traditionally white institutions, as well as a 7.3situation.256 percent increase in the overall number of black Dr. F. Kent Wyatt, president of historically students in the state's university system.252 In awhite Delta State University, said he did not see June 1998 order of the district court, following aany reason to be concerned about the changes status conference on the Fordice case, the courtmade with respect to admissions standards. He ordered the university to monitor "the various elements that affect freshman enrollment and advise the court of its findings."253 254 Hawkins, "Fordice Decision," p. 6. Dr. Elias Blake Jr., a consultant to the Ford- 255 Ibid. Mr. Mills also said that "the real problem is K-12" ice plaintiffs and director of the Washington, and that the current system, which is largely in disrepair, has no competitive forces pressing on it, and therefore has D.C.-based Benjamin E. Mays Center, said that become "fat, lethargic, and inefficient." He notes that private what is needed is a way to "overturn this new schools in the state charge less than $3,000 in tuition, but legal doctrine that you can obey the mandates of the state spends $4,400 on each child; he claims that much Brown v. Board of Education for desegregation of the excess money is "lost on layers of administration." by increasing and perpetuating the historic de- Mills Interview. 256 Robert A. Kronley, senior consultant, BellSouth Founda- nial of equal access to higher education and tion and Southern Education Foundation, telephone inter- making opportunitiesforBlack youthless view, June 26, 1996 (hereafter cited as Kronley Interview). equal." According to Dr. Blake, formerly the However, this appears to be changing. The state is now mov- president of Clark College, a black college in At- ing to link K-12 and higher education through such pro- grams as college discovery programs, teacher training de- lanta, "If [Fordice] stands, [it] will be a new kind sign centers, and summer institutes. In addition, a new of Plessy v. Ferguson. In Plessy, Blacks got legal- state law, the Mississippi Adequate Education Program, ized segregation that increased inequality of op- states that every school district must receive "sufficient" funds to provide an adequate education. The state will pro- portunity....[The Fordice] opinion allows de- vide 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 250 Kronley Testimony, Hearing Transcript, p. 317. about $130 million on this program, which gained approval 251 Southern Education Foundation, Miles to Go, p. 45. from the Legislature over the governor's veto. See Southern Education Foundation, Miles to Go, pp. A35A36. See also 252 Ibid. Christopher McEntee, "MississippiDistrict Inaugurates 252 Ayers v. Fordice, No 4:75CV009-B-0, at 2 (N.D. Miss. Bond Program to Enhance Fair School Funding," The Bond June 4, 1998). Buyer, Nov. 4, 1997, p. 3. 60
72 said the new standards are not stopping any "le-)tions262 and then proceeded to enroll in those gitimate" student from obtaining a higher educa- same institutions, a "fair number" of the stu- tion, adding that any hard-working, sincere stu-dents enrolled inhistorically white institu- dent in Mississippi is going to be able to obtain tions.263 higher education, whether it be at a four-year The Southern Education Foundation reports university or a community college.267 that the number of students participating in the Finally, Robert Davis, professor of law at the1997 summer remedial program increased to 303 University of Mississippi School of Law, suggests students, of whom 273 completed the program. that the admissions process should be made farBlacks accounted for 95 percent of the students more flexible than the reforms have made it. He in the program. Three-quarters of the students argued that some students do not perform wellin the summer program-229 of themwere on standardized tests such as the ACT andhe enrolled at one of the three historically black suggested that "testing abuses" might occurinstitutions. Of the 287 black students who be- which can reduce the scores of minority test tak- gan the program, 208 (72.5 percent) ultimately ers. Professor Davis argued that "everyone"enrolled in the fall of 1997. All 15 of the white should be let into Mississippi's eight public uni-students who participated in the program en- versities. He believes that if newly admitted stu-rolled in the fall of 1997.264 dents are not adequately prepared for the Since the summer program is so new, infor- coursework at a four-year school, they willmationisnot yetavailable regarding the quickly fail out and can attend the communitygraduation success rates for the students admit- cone ges.268 ted through the program. However, Dr. Layzell reported that data suggested that "they were Summer Remedial Programs for First-Year doing fairly well in the fall term [of the 1996 College Students 1997 school year]."266 Summer remedial programs in mathematics, The programs last nine weeks, and only those reading comprehension, writing, and study skillsstudents who complete a program successfully have been implemented to help students who do will be admitted to a university.266 Dr. Roy Hud- not meet the new admissions requirements. Dt. son, vice president for administration at histori- Thomas Layzell, the commissioner of highercally black Mississippi Valley State University, education, describes the nine-week programs as said that if the new standards had been in place allowing "open admissions ... tostudents who during the 1994-1995 school year, more than 40 did not otherwise meet the uniform admissionspercent of the school's students would have requirement."266 Students who complete the pro- fallen into this new "conditional admission" gram can then choose any one of the eight state category. And, Dr. Hudson added, "If that 40% of universities to attend, under the condition thatstudents who are trying to get into Mississippi they participate in a yearlong "academic supportValley State, Alcorn State and Jackson State program" during the first year of study.260 Dr. Layzell reported that during the summer of 1996, approximately 210 students participated 269 It was reported that, for the 1996 summer remedial pro- in the program, with nearly 200 students com- gram, there were two students enrolled at thehistorically pleting it successfully.261 He said that while the white institution of Delta State and one at the University of vast majority of the students attended summer Mississippi. At historically black Mississippi Valley State remedial programs at historically black institu- University, 76 students were in the program, 67 of whom completed it successfully. Sutton Testimony, Hearing Tran- script, pp. 237-38. 257 Wyatt Interview. J.P. Mills, a member of the Mississippi 263 Layzell Testimony, Hearing Transcript, p. 224. College Board, has noted that the summer remedial pro- 264 Southern Education Foundation, Miles to Go, p. A35. grams are designed to give students "every possible chance to be admitted" to one of the state's universities. Mills Inter- 265 Layzell Testimony, Hearing Transcript, p. 223. view. 266 However, Thomas Layzell, Mississippi's commissioner of 258 Davis Interview. higher education, said there is enough flexibility in the sys- tem that students who do not meet the requirements could 259 Layzell Testimony, Hearing Transcript, p. 222. be admitted provisionally or after further review. Apple- 269 Ibid., pp. 222, 237. home, "Mississippi's Black Colleges Fear Equal Admissions 261 Ibid., p. 222. Standards," p. 5A. 61 don't... we will lose them, period. Not even to a that does not stigmatize students; he said that junior college."267 care should be taken to do the same in thispro- Fewer students, ofcourse, would mean fewer gram.273 dollars for the schools. Dr. James Lyons, presi- Finally, there is concern about theexpense of dent of historically black Jackson State Univer-the summer program. Dependingupon the insti- sity, estimated in the spring of 1996 thataccep- tution, the program costs between $1,900 and tances to Jackson could decrease by asmany as $3,000 per student. Robert Kronley, seniorcon- 500 students for the coming school year. Suchasultant to the BellSouth Foundation andthe drop in enrollment would cost the universitySouthern Education Foundation, suggested that: $2.5 million out of a $57.4 million budget.268 The decrease ended up being approximately half that [A summer remedial program is] nota very great in- amount-257 fewer students enrolled in 1996 centive for a kid who comes out of the high schoolin than had done so the previous yearwhich still the Delta to go to takeand doesn't qualify for imme- cost the university over $1 million.269 diate admissions, to decide that she really is goingto Others question the effectiveness go down the road, lose a summer job, have topay of the money for this program, with the possibility that she's summer remedial program as a tool for college not even to be admitted to institutions.274 preparation. Joyce Payne, director of the public black college office of the National Association of The Southern Education Foundationreports State Universities and Land Grant Colleges,that, of the 717 students whowere eligible for said the planned summerprograms were notthe summer remedialprogram for the 1996 likely to "wipe out the educational deficits built1997 academic year, only 218 enrolled because up over 12 years of black students going to anti-120 students missed the enrollment deadline quated and substandard" public schools.270 Re- and 379 chose not to or were otherwise unableto searchers at the Southern Education Founda-enroll. States the foundation's report: "Critics of tion27l appear to agree, stating thata court-the policy noted that students, particularly those approved summer program "will not substitutefrom needy families, must work during the for a comprehensive educational remedy that summer months and may have limited access to will systematically address thepoor preparationsuch a summer program."275 that many black Mississippians get in elemen- Moreover, the summer remedialprogram ex- tary and secondary education."272 pense is being added to education bills that fami- Dr. James D. Anderson, professor of educa-lies are already struggling with: throughout the tion at the University of Illinois, suggested stu-1980s, the tuition and fees increased at both dents will be stigmatized by the summer pro-public and private institutions at twice therate grams. He argued that the way the programs are of inflation. In Mississippi, tuition at public col- being set up sends a message to the rest of theleges and universities is about 40 percent of the students that "those students shouldn'teven beaverage minority income. But while costs are here." Dr. Anderson believes that schools haverising, tuition assistance is not. In 1976, stu- enacted similar programs in the past ina waydents borrowed $1.20 for every dollar theyre- ceived in federal grants. By 1995, students had 267 D. Hawkins, "Mississippi Mayhem," Black Issues in to borrow approximately $4.30 forevery dollar Higher Education, Mar. 21,1996,P. 24. they received in grants.276 288 Applebome, "Mississippi's Black CollegesFear Equal Admission Standards," p. 5A. 266 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 edu- cation in the southern region, including Redeeming the American Promise: Report of the Panel on Educational Op- 278 Anderson Interview. portunity and Postsecondary Desegregation, 1995, and Miles 274 Kronley Testimony, Hearing Transcript,pp. 317-18. to Go: A Report on Black Students and Postsecondary Edu- 278 Southern Education Foundation, Miles to Go, cation in the South, 1998. p. A35. 276 Southern Education Foundation, Redeeming the Ameri- 272 Southern Education Foundation, Redeeming the Ameri- can Promise, p. 33. See also Kronley Testimony, Hearing can Promise, p. 16. Transcript, pp. 317-18. 62
4 The Appeal of U.S. v. Fordice careful to point out, however, that if the new In April 1997, the U.S. Court of Appeals foradmissions policy was unable to meet its objec- the Fifth Circuit ruled on the appeal to Judge tives, then the court should implement an alter- Biggers' March 1995 ruling. native solution:
Admissions Policies and Practices As contemplated, the new standards should result in The appeals court said the district court wasthe identification and admission of those applicants within its discretion to implement uniform ad- who, with reasonable remediation, can do college level work. ... If. ...the spring and summer program is missions standards277 among the state's publicunable to any significant degree to achieve its in- university system. tended objectives of identifying and admitting other- In the failed appeal, plaintiffs made two chal-wise eligible applicantsi.e., applicants who could, lenges to the new admissions policy. First, theywith reasonable remediation, successfully complete a argued that it would significantly reduce the regular academic programfor whatever reason, then number of black students eligible for regularthe program must be reevaluated. The District Court's proper retention of jurisdiction over this ac- admission to thØ university system, and therebytion indicates its intent to examine this important disproportionaly burden black students with acomponent of the admissions system once the rele- loss of educational opportunity.278 Second, they vant data becomes available.282 argued that t e court's reliance on the summer remedial pro am to compensate for the pro- A study by the Southern Education Founda- jected decline in regular admission of black stu- tion suggests that the new standards have had a dents was inappropriate because the programnegative impact on access for entering black stu- was untested and incompletely defined at the dents: between fall 1995 and fall 1996, first-time, time of trial. Moreover, they suggested that thefull-time black freshman enrollment at Missis- summer program is not a viable option for thesippi's public universities dropped by 463 stu- many black students who must work duringthe dents. Most of the decline was at the three his- summer to play for college in the fall.279 torically black universities: the number of black The appeals court ruled, however, that the freshman dropped by 12 percent at Alcorn State, district court was within its discretion to makeby 24 percent at Jackson State, and by 27 per- admissions standards uniform throughout thecent at Mississippi Valley State. With this de- four-year higher education system. The courtcline, Mississippi in 1996 had fewer black fresh- noted that the differential admissions criteria ofmen and lower representation of them in the the de jure past "fostered both segregation of the cohort than it did 20 years before.283 And recent races and the public perception that the institu-numbers indicate a continuing downward spiral. tions with lower standardsthe HBIswere ofBetween 1995 and 1999, the total number of inferior quality."280 Moreover, the court said,black freshmen enrolled at the state's campuses "Fordice does not require that all students whodropped 17.3 percent.284 And at black campuses, would have been admitted under the prior, un- constitutional admission standards be admitted under the reformed admission standards with- out regard to the educational soundness of the reformed standards."281 The appeals court was lower court: "Defendants' expert, James Wharton, testified that access to four-year institutions in Louisiana is 'not meaningful access because we also have tremendous attri- 277 The new admission criteria standardized requirements at tion and students get hurt in that attrition.' Likewise, all eight universities beginning with applications for admis- Hunter Boylan testified that la]ccess without an opportu- sion in the fall of 1996. Ayers v. Fordice, 111 F.3d 1183, nity to succeed isn't really access. If you have an open door it 1195 (5th Cir. 1997). quickly becomes a revolving door.' " Id. at 1198-99, n. 31. 278 Id. at 1197. 222 Ayers v. Fordice, 111 F.3d 1183, 1201 (5th Cir. 1997). 278 Id. 222 In 1976, there were 3,506 first-time fulkime black freshman enrolled in Mississippi's public universities, repre- 288 Id. at 1199-1200. senting 40.5 percent of all freshmen. In 1996, there were 2,750 281 Id. at 1199. The appeals court also referred to the lower black freshmenwhich represented 38 percent of all fresh- court's finding that admission of students unprepared to do men. Southern Education Foundation, Miles to Go, p. 45. college level work may result in significant attrition accom- panied by unprofitable debt accumulation. Id. at 1198. The 284 Randal C. Archibold, "The Price of Desegregation," The appeals court specifically referred to testimony before the New York Times, Apr. 9, 2000, p. 22. 63 in 1999, 1,588 were enrolled compared withcourt found otherwise.285 The court said that be- 2,314 in 1995.285 cause a scholarship requires a student to achieve However, at the same time that first-time,a certain minimum ACT score to be eligible for full-time black freshmen enrollment is decreas-the award, it follows that a student who has not ing, the overall number of black students in theachieved the requisite ACT score will not becon- university system has increased by 7.3 percentsidered, regardless of how impressive his or her since the new admissions standards went intogrades or other academic achievements might be. effect. It is not entirely clear why this is thecase, The court ruled this was "constitutionally but the district court has directed the Collegeproblematic" for "the same reason the Supreme Board to continue monitoring the various ele- Court found the use of the ACT in admissions to ments that affect enrollment figures and advisebe so."281 The court said that justas there may the court of its findings.286 be students who could do college level work yet might be precluded from enrolling inan institu- Elimination of Remedial Courses tion that maintains ACT cutoffs in admissions, In ordering the new admissions policies, thethere may be students who have outstanding district court tacitly approved the elimination ofacademic achievement that merits recognition "most, perhaps even all" of the remedialcourses apart from their ACT scores.282 that had been offered at all of Mississippi's four- The court pointed out, however, that the year colleges and universities, most notably bypractice of rewarding academic achievementas the HBI8.287 However, the court of appealsdetermined by standardized test scores is notper pointed to predictive data indicating that stu-se unconstitutional "even where it results in sig- dents admitted with the minimum qualificationsnificant racial disparities in receipt of awards." required under the new standards are not pre-Rather, said the court, the use of ACT cutoffs in dicted to achieve a C average during their firstthe award of scholarships raises constitutional year in at least three of the historically white suspicion only because of the history of de jure institutions. The court directed the lower court, segregation in Mississippi.283 The court said: on remand, to "determine if remedial courses are needed to help ensure that students admittedUse of ACT cutoffs does not take placeon a clean under the new admissions criteria have a realis- slate in Mississippi, however. The alleged practice of tic chance of achieving academic success."288 basing scholarship eligibility on minimum ACTscores Following a status conference on the Fordice flows from earlier discriminatory use of ACT cutoffs case, the district court stated in a June 1988 or-and therefore triggers further constitutional inquiry, under Fordice, into whether it continues to haveseg- der that it "approved the request of the Board to regative effects.294 continue remedial programs for some fully ad- mitted students who are admitted under thenew The court noted that district court findings admissions standards and also for those students and other evidence indicate "that scholarships who successfully complete the summer pro-with ACT cutoff scores are disproportionately grams."288 awarded to white students," and that blackap- plicants to Mississippi universities aremore Scholarship Policies likely to need financial assistance than white The district court found that basing scholar- ship eligibility on ACT cutoff scores is not trace- able to the dual system and does not havecur- 290 Ayers v. Fordice, 111 F.3d 1183, 1207,n. 47 (5th Cir. rent segregative effects. However, the appellate 1997). 221 Id. at 1208 (citing United States v. Fordice, 505 U.S. 717, 736 (1992)) C'Another constitutionally problematic aspect of 285 Ibid. the State's use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the mini- 286 Ayers v. Fordice, No. 4:75CV009-B-0, at 2 (N.D. Miss. mum ACT score specified for the particular institution, June 4, 1998). without also resorting to the applicant's high school grades 287 Ayers v. Fordice, 111 F.Sd 1183, 1201 (5th Cir. 1997). as an additional factor in predicting college performance"). 288 Id. at 1202. 292 289 Ayers v. Fordice, No. 4:75CV009-B-0, at 2 (N.D. Miss. 293 Id. June 4, 1988). 224 Id.
64 76 applicants. The court observed that "No the ex-)State will not, by itself, necessarily lead to inte- tent that academically accomplished black stu-gration: dents are unable to achieve ACT scores that would qualify them for scholarships at theThere was testimony that the Louisiana experience HWIs, they are discouraged from both applying with implementation of a consent decree to desegre- to and matriculating at these institutions."295 gate public institutiops of higher education was not successful in attracting white students to historically The court concluded that while the potentialblack universities, despite investment of over $75 segregative effect of the use of ACT cutoffs in million in new academic programs at those universi- determining scholarship eligibility "is perhaps ties. The evidence showed that there was no correla- somewhat less pronounced than that of the use tion between dollars expended on new program im- of ACT cutoffs in admissions," the evidence nev- plementation and white enrollment in those pro- ertheless indicated that such potential did ex- grams. During the six years (1981-87) that the Lou- ist.296 The court thus directed the district court isiana consent decree was in effect, white enrollment to "reform current policies consistent with sound in predominantly black universities increased by just 1.1%, while black enrollment in predominantly white educational practices," but added that "we do not universities decreased from 56% to 47% of black en- hold that reliance on ACT scores for scholarship rollment in the system as a whole.301 purposes must be eradicated entirely."297 In a June 1998 order of the district court, fol- The court of appeals did suggest, however, lowing a status conference on the Fordice case, it that well-planned programs which respond to was determined that "use of ACT scores as thethe particular needs and interests of local popu- sole criterion in awarding scholarships has beenlations can help to desegregate historically black eliminated...." The College Board was directed institutions. Specifically, the court noted that to submit further information to the court "con-evidence indicated that programs which are not cerning the issue of the educational soundness ofduplicated at proximate institutions, are tar- the use of ACT scores as a criterion in conjunc- geted to local demands, and are offered through tion with other factors in the awarding of schol-alternative delivery systems (such as off-campus, arships both at the historically white institutions evening, or weekend programs) have had success and the historically black institutions."298 in attracting white students to historically black institutions in other states.302 The Merger of Mississippi Valley State and Delta State Funding Analysis The appeals court stated that "all parties ap- The appeals court concluded that the present parently have concluded that merger of Missis-formula used to allocate funds among the differ- sippi Valley State with Delta State is neither ent state universities does so as a function of the required nor desired."299 The district court has size of each institution's enrollment, faculty, and since held that it will "no longer consider thephysical plant. The court noted that while the merger" of the two institutions, and it directedformula responds to conditions that to a signifi- the College Board to conduct a study of pro- grams that can be implemented at Mississippi Valley State which will "attract other-race stu- 391 Ayers v. Fordice, Ill F.3d 1183, 1213 (5th Cir. 1997). Cf. United States v. Louisiana, 692 F. Supp. 642, 645 (E.D. La. dents."300 1988) ("Despite the slight increase in black enrollment The appeals court strongly suggested that statewide, the racial polarization has increased as a whole simply investing money into Mississippi Valley 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 institu- 295 Id. (citing Ayers v. Fordice, 879 F. Supp. 1419, 1433-34, tions showed only a negligible increase in white enrollment n. 28 (N.D. Miss. 1995)). from around 0.3% in 1981 to around 1.1% in 1987"). Accord- 296 Id. ing to the three-judge court that reviewed the special mas- 297 Id. at 1208-09 (emphasis added). ter's final report in the Louisiana case, "[t]he experience of the consent decree confirms that enhancement of [predomi- 298 Ayers v. Fordice, No. 4:75CV009-B-0, at 3 (N.D. Miss. nantly black institutions] without more simply makes [pre- June 4, 1998) (emphasis added). dominantly black institutions] more attractive to black stu- 299 Ayers v. Fordice, 111 F.3d 1183, 1214 (5th Cir. 1997). dents, without attracting white students." United States v. 399 Ayers v. Fordice, No. 4:75CV009-B-0, at 1-3 (N.D. Miss. Louisiana, 718 F. Supp. 499, 508 (E.D. La. 1989). June 4, 1998). 392 Ayers v. Fordice, 111 F.3d 1183, 1214 (5th Cir. 1997). 65
7 7 cant degree have resulted from the mission des- The court of appeals did note, however, the ignations (and consequently results in the his-lower court's determination that the quality of torically white institutions receiving a greaterfixed equipment (such as science lab furnish- proportion of funds), the manner in which theings), technical equipment, and scientific equip- formula does so is guided by valid educationalment at the historically black institutions are concerns and is not linked to any prior discrimi-inferior to that at the historically white institu- natory practice.= tions.= The appeals court made it clear that to Plaintiffs had argued that the district courtthe extent these disparities are attributable to should have considered adjustments to the fund-the mission assignments and have segregative ing formula in two respects, neither of which the effects that will be reduced by additional fund- court found to have merit. First, plaintiffs ar- ing, then relief may be in order.307 gued that the formula should be adjusted for the higher cost of remedial education, citing evi- U.S. Supreme Court Rejects Further Review dence that a disproportionately high number of On January 20,1998, the U.S. Supreme black students in Mississippi are underpreparedCourt, without comment, turned away the ar- for college and that such an adjustment wouldgument that the revised college admission plan encourage the historically white institutions toand Mississippi's longstanding college funding provide remedial courses and to attract blackformula have left in place remnants of the old students and would aid the historically blacksegregated system.= The appeal, which failed, institutions in providing the remedial instruc-had argued that the state, by not dismantling its tion needed by their students. The court of ap-structures that maintained its dual system, was peals concluded, however, that the plaintiffscontinuing not only to segregate, but also dis- failed to identify any traceable policy related to criminate by discouraging blacks from attending the funding of remedial education, nor did they college.309 identify any evidence that remedial education as Justice Department lawyers had advised the structured under the remedial decree is or isJustices to reject the appeal because further is- likely to be underfunded.= sues remain to be resolved by the lower court. Second, plaintiffs argued that the fundingBut government lawyers said the nation's high- formula should be adjusted to take into accountest court may need to review the case in the fu- the proportion of students at a university who ture.310 are in need of financial aid. The court of appeals Mississippi Senate Universities and Colleges concluded that the funding formula provided CommitteechairmanHillmanFrazier(D- funds for scholarships and fellowships (whichJackson) said that the U.S. Supreme Court's de- are only a portion of the total financial aid avail- cision should prompt more discussions among all able to students at each university) on the basissides in the suit. "The court has spoken. We of each university's tuition income. It is clearknow what the thinking is of all parties," he that the state universities which charge the said. "This is a golden opportunity for the Legis- highest tuitionthe three comprehensive his-lature and College Board to get together and re- torically white institutionsalso generally have the largest proportion of students who have little 306 Id. U.S. Representative Bennie Thompson, one of the or no need for financial assistance. However, the plaintiffs in the Fordice case, had attended both a histori- court of appeals said the plaintiffs identified no cally black public institution and a historically white public traceable policy concerning the adequacy ofinstitution in Mississippi as a graduate student in the scholarship and fellowship funds provided to the 1970s. He later reported that there was a stark difference "like night and day"in the quality of campus buildings, historically black institutions, and any potential libraries, equipment and other facilities between the two segregative effects of the failure of the formula schools. Roach and Fields, "Mississippi Churning," p. 13. to take financial need into account is a function 8" Ayers v. Fordice, 111 F.3d 1183, 1225 (5th Cir. 1997). of the socioeconomic status of black applicants, 808 Ayers v. Fordice, 111 F.3d 1183, 1225 (5th Cir. 1997), not a traceable policy of the de jure system.= cert. denied, 118 S. Ct. 871 (1998). 306 Laurie Asseo, "Mississippi Desegregation Appeal De- 803 Id. at 1223-25. nied," The Associated Press Online, Jan. 20, 1998, available 3" Id. at 1224. in LEXIS News Library, AP File. 8°8 Id. 31° Ibid. 66 78 solve this thing. It's been around too long." Fra-settlement in the case, saying, "I think it is time zier said the state should "send positive signalsfor all parties to sit down and see if we can put to the plaintiffs" that it wants to improve situa-this case to rest." Finally, Howard University tions at the three historically black colleges.311 Law School professor Ken Tollett Sr. argued that Mississippi College Board spokesperson Pamit was time to settle because not much more Meyer said the board is pleased. She said thecould be achieved at the judicial level in the board now will ask the Legislature to put more case. Professor Tollett said: money aside for the Fordice case.312 Alvin Chambliss Jr., the lead attorney for the [Lead attorney for the plaintiffs Alvin] Chambliss and plaintiffs, said that the "case is not over. NobodyI have disagreed about this for years. I think we're has said the system is desegregated." And Mis- better off in the political process than in the judiciary. Look at Louisiana and Alabama. It was the leader- sissippi State Representative Jim Evans (D- ship of the Black [legislative] caucuses in those states Jackson), a member of the legislative Black Cau- that provided good settlements and provided for the cus, also said the court ruling does not end the enhancement of Black institutions. Since Mississippi case. "If he [the judge] had given us equity andhas such a large number of [black] legislators, they fairness, we would not have appealed it," themay be able to substantially help these students, if lawmaker said. "It will continue....I'm not go- not constrained too much.317 ing to knock the Supreme Court for sending it back because it ought to have been settled by This year marks the 25th anniversary of now," Evans said, adding that the state couldFordice. Lilly Ayers, the 71-year-old widow of the speed up the end of the case by working withoriginal plaintiff, Jake Ayers Sr., said recently, "I plaintiffs.313 Mr. Chambliss has petitioned thefelt like it would be a long time but not 25 years. I Supreme Court again to review all lower court don't think my husband would have felt it would decisions.314 He has challenged the change in the take 25 years, either. It was so simple."318 admissions policies of the state schools and has proposed that the state spend approximatelyHopwood or FordiceWhich Controls? $300 million and set up professional programs In Hopwood u. Texas,319 the Fifth U.S. Circuit such as a law school or nursing programs at theCourt struck down an affirmative action admis- campuses.313 sions policy at the University of Texas Law Mark Henry, chief legal adviser for GovernorSchoo1.320 The decision has been interpreted by Kirk Fordice, said that the denial by the Su- preme Court of the appeal of Fordice "means the 317 Roach and Fields, "Mississippi Churning," pp. 10-11. end of the litigation is in sight....That's good 318 Archibold, "The Price of Desegregation." news for the taxpayers, that's good news for the 313 861 F. Supp. 551 (W.D. Tex. 1994) (using separate ad- students of Mississippi."316 missions procedures for blacks and Mexican Americans vio- Even before the Supreme Court issued its rul- lates the equal protection clause of the 14th Amendment, ing, several individuals involved in the suit because it was not narrowly tailored to achieve compelling state interests since the process prevented any meaningful called for settlement: Dr. Clinton Bristow, presi- comparative evaluation among applicants of different races), dent of historically black Alcorn State Univer- rev'd in part, remanded, appeal dismissed, 78 F.3d 932 (5th sity, said, "It's time to call it quits" just after the Cir. 1996) (holding law school cannot use race as a factor in April 1997 ruling of the appeals court. And U.S. law school admissions despite the goal of creating greater diversity, affirmed, remanded for consideration whether Representative Bennie Thompson (D-MS), one of plaintiffs would have been admitted in absence of proce- the plaintiffs, publicly called for some type ofdures that took into account applicants' race or ethnicity, and if so, what damages are appropriate), cert. denied, 518 311 "Desegregation Case Nearer End in Mississippi as High U.S. 1033 (1996), vacated mem., 95 F.3d 53 (5th Cir. 1996), Court Backs Off," The Commercial Appeal, Jan. 22, 1998, p. on remand, 999 F. Supp. 872 (W.D. Tex. 1998) (holding that none of the plaintiffs would have been admitted under ad- A13. mission system that took no account of race or ethnicity). 312 Ibid. 820 The Texas case stems from a lawsuit filed in 1992 by 313 Ibid. Cheryl Hopwood and three other white law school applicants 314 Randal C. Archibold, "The Price of Desegregation," The at the University of Texas. They asserted they were denied New York Times, Apr. 9, 2000, p. 22. admission because affirmative action policies gave unfair preferences to less-qualified minority applicants. In March 313 Ibid. 1996, the three-judge panel ruled not only that the law 816 Ibid. school's admissions policies were illegal, but also called into 67
7 9 the state attorney general as prohibiting any use Alvin Chambliss Jr., lead attorney for the of race in higher education policy. In Februaryplaintiffs in the Fordice case, argued that his 1997, Texas Attorney General Dan Morales for-case "trumps Hopwood" and that, in fact, "Hop- mally declared that Texas public universitieswood is dead,"322 adding that unlike in Hopwood, "would employ only race-neutral criteria in ad- the Fifth Circuit ruled in Fordice that diversity ministering their internal policies, includingis important, that "race does matter."323 Mr. admissions, financial aid, scholarships, fellow- Chambliss said, "The ultimate question for black ships, recruitment and retention."321 public colleges is whether or not Hopwood will ultimately hurt the overall access movement. question the U.S. Supreme Court's ruling in Regents of Uni- The issue for traditionally white institutions is, versity of California v. Bakke, 438 U.S. 265 (1978), a reverse whether framed as diversity or affirmative ac- discrimination case. The Bakke decision said schools could tion, do black students have access to higher not adopt racial quotas but race could be used as one of sev- eral factors in admissions. The Fifth Circuit ruling in Hop- education?"324 wood, on the other hand, said the law school "may not use Others disagree with Mr. Chambliss. For ex- race as a factor" in admissions, "even for the wholesome ample, Lynn Rodriguez, general counsel of the purpose of correcting perceived racial imbalance in the stu- dent body." But the decisive language of the ruling has not Texas Higher Education Coordination Board, been affirmed elsewhere. Instead, the Supreme Court let the said she did not believe the circumstances of the ruling stand, leaving it in effect only in the Fifth Circuit. Mississippi case could be applied to the interpre- Even the two other states covered by the Fifth Circuit tation of Hopwood. "I think it's too far of a Louisiana and Mississippiare under court orders to fur- ther desegregate their colleges and universities and have stretch," Rodriguez said. The respective deci- not adopted the strict interpretation of Hopwood being used sions, she said, were narrowly tailored by the in Texas. Peter Applebome, "Texas Is Told to Keep Affirma- U.S. Fifth Circuit Court to address different tive Action In Universities or Risk Losing Federal Aid," The state higher education systems.325 New York Times, Mar. 26, 1997, p. Al 1. See also Hopwood v. Texas, 78 F.3d 932, 962 (5th Cir. 1996). The Hopwood interpretation by Attorney General Morales has stirred a great deal of op- 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 quent letter (Apr. 11, 1997) to Texas State Senator Rodney mixed signals, both at the national and state levels, which Ellis to "ensure that recent mischaracterizations of my [Mar. reflect the uncertainty about the future of affirmative ac- 18, 1997] letter do not lead to a misunderstanding....1 tion. The month following the declaration by the Texas at- Michele Sharlot, dean of the University of Texas Law torney general that Texas public universities would employ School, said, "It's enormously important, not just in the self- race-neutral criteria in administering their internal policies, ish view of Texas, which is just being transformed by follow- Norma Cantil, head of the Office for Civil Rights at the U.S. ing the Hopwood decision, but in terms of how important Department of Education, issued a letter warning Texas the question is for the whole country." Ibid. state officials that they were required to maintain their 322 Roach and Fields, "Mississippi Churning," p. 11. Chem- affirmative action programs or risk losing federal higher bliss makes the following comparison between the Hopwood education money. In a Mar. 18, 1997 letter, the Office for and Fordice (which Chambliss refers to by its original name, Civil Rights told Texas officials that they must aggressively Ayers) cases: "Hopwood cut off historical evidence. Ayers take steps like affirmative action to attract minorities or expanded the concept of traceability. Hopwood held that risk 'losing $500 million in student scholarships, work-study race cannot be used to remedy imbalances. Ayers said that it programs, and research grants. Directly contradicting the could be used in just about every context. Hopwood threat- Texas attorney general's directive, Ms. Cana' argued that, ened punitive damages. Ayers excluded their use. Finally, under the Fordice ruling, Texas is required to continue to Ayers is predicated on a U.S. Supreme Court case, where root out current discriminatory practices and the vestiges of Hopwood v. Texas is based on no single Supreme Court case. past discrimination and make its campuses more accessible Hopwood is effectively overruled in the Fifth Circuit because to minorities. Not only can race be used as a factor in ad- the last decision governs. This is not to say that a district missions, said Canal, but universities also "have a clear court cannot go with Hopwood as precedent. Until the U.S. legal obligation to do so to remedy current discrimination or Supreme Court or the Fifth Circuit en banc resolves the the effects of past discrimination." Ibid. conflict, courts have a choice. Ayers is predicated on a U.S. But then the acting solicitor general of the United States, Supreme Court decision that applies nationally. This gives it Walter Dellinger, wrote an unusual retort to the Education much more weight." Ibid., p. 32. Department, saying that the Hopwood case banning af- 323 Ibid., p. 32. firmative action was the law in Texas. Some experts suggest 324 Alvin 0. Chambliss Jr., "Hopwood and Ayers v. Fordice: that such mixed signals make it increasingly important for The Beginning of the End?" Black Issues in Higher Educa- the Supreme Court to clarify its views on whenand in tion, May 15, 1997, p. 32. what formsaffirmative action is permissible. Ms. Cantii, insisting that she never advised Texas officials that Texas 325 Ronald Roach, "Hopwood or Fordice: Which Controls in must maintain affirmative action programs or risk losing the Fifth Circuit?" Black Issues in Higher Education, May federal financial support for higher education, sent a subse- 15, 1997, p. 14, n. 6. 68
8 0 position among numerous officials and legisla-agricultural high schools, which were boarding tors in Texas. The legislators have argued thatschools. In the 1920s the State Legislature au- Texas is obligated to use race-based affirmative thorized two additional years of post-high school action to remedy prior discrimination in higherwork. The mission, as stated by the Legislature, education, and they argued that both the Fordiceis to offer programs that enhance and improve decision and the 1978 U.S. Supreme Court deci- the quality of life for Mississippi citizens. This sion Regents of the University of California v.has been translated into offering academic pro- Bakke326 permits such remedies. "What's needed grams that can be transferred toward earning a is some authoritative statement by the Supreme baccalaureate degree at a four-year university. Court of where Bakke stands," said Samuel Issa- The community colleges are also used to train charoff, a University of Texas law professor and peopleinprofessionalareasandtechni- a lawyer for the university in the Hopwood case. cal/vocational areas, which has become an in- "One of the ironies of the situation is that until creasingly important part of the mission. Dr. Hopwood came along Bakke stood in a vacuum. Martha Cheney, project coordinator at the Public Bakke came in 1978 and there's been no inter-Education Forum in Jackson, Mississippi, testi- pretive case law since then. ...I can't think offied, "Right now we are doing more responding another area of law where there's been one ma-to industry with our community college system, jor Supreme Court decision that's stood by itselfon-the-job training, our community colleges are for 25 years and then a lower court comes alongfocusing much more on adults and technology, and says it's to be disregarded."327 retooling people... In March 1997, the Department of Educa- Dr. Olon E. Ray, executive director of the tion's, Office for Civil Rights informed TexasMississippi State Board for Community and Jun- state officials that it would open a review "to de-ior Colleges, described the mission of the com- termine whether any vestiges of prior discrimi-munity collegesall of which have dormitories nation are causing discrimination to continue" inand extracurricular activitiesas "comprehen- Texas. According to Norma Cant 1'4, assistant sec- sive" in nature, meaning that the programs span retary in the Office for Civil Rights at the De-the entire spectrum, including full-time aca- partment of Education, the "review is being con- demic, part-time academic, allied health-related ducted under the standards set out by the Su-(e.g., dental assistant, medical assistant, and preme Court in 1992 in the Fordice case regard- pharmacist technician),vocational,technical, ing the obligation of formerly segregated sys- and work force training and retooling. Among tems of higher education to eliminate vestiges ofthe 91,000 students overall, the biggest growth those old systems."328 area is in the noncredit, work force-related "transition programs"or programs that give Community Colleges students skills necessary to gain (or advance in) The state of Mississippi is divided into 15employment, but that do not necessarily lead to community college districts, each of which has a a degree.331 community college in it.329 The state community Dr. Ray reported that in 1994, the State Leg- college systemwhich currently has a budget ofislature passed the "Workforce and Education $250 millionevolved from the old system ofAct." This act created "one-stop" career centers in each of the state's community colleges. The centers were designed to help area employers and 326 438 U.S. 265 (1978). employees who had training needs, placement 327 Applebome, "Texas Is Told to Keep Affirmative Action In Universities or Risk Losing Federal Aid," p. 11. needs, assessment needs, and all other needs 328 Ibid. which contribute to a person's employability.332 328 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 338 Cheney Testimony, Hearing Transcript, p. 1182. The directed that there be a study of the admissions require- Public Education Forum is funded by businesses throughout ments of the community college system in order to ensure Mississippi to provide business involvement in education open admissions and accessibility for interested students. policy and legislation. Ibid. Dr. Olon E. Ray, executive director, Mississippi State Board for Community and Junior Colleges, telephone interview, 331 Ray Interview. May 29, 1997 (hereafter cited as Ray Interview). 332 Ibid. 69 Si_ According to Dr. Ray, the "traditionalists" in come, by increasing employability, and all those kinds community college education will say, that its of things. And we are the right ones to do that. I think primary mission is for "academic bridging," or it's a major economic/human initiative.338 serving as a passageway between the two-year community colleges and the four-year universi- The 1990 census in Mississippi showed that ties.333 Students first enroll in a community col- there were 547,000 people without a high school lege where they take remedia1,334 college prep,education. Given the projection that 80 percent and lower level college courses. The studentsof all new jobs will require education beyond the then transfer to the four-year universities and high school level, community colleges in Missis- work toward the baccalaureate degree.335 Stu-sippi will continue to play a useful role in im- dents who complete 24 hours of classes in theparting needed knowledge and skills to people community colleges are permitted to transfer into seeking those jobs. any one of the state's eight public universities.336 According to Dr. Ray, community colleges Dr. Ray said that while the community col-help increase access to and desegregation within leges are still strongly committed to "academicthe state system of higher education because bridging," only about 4,000 of the 91,000 stu- they are more accessible, more affordable,335 and dentsor less than 5 percent of the total studentmore "culturally ...friendly in helping nontra- populationtransfer to four-year universitiesditional340 students to access the first two years each year.337 Instead, the focus has been turning of a baccalaureate degree."341 toward the "transition programs," which Dr. Ray As for creating a multiracial environment on believes is a positive change: the campuses, Dr. Ray said that while they "worry about the racial mix," they do not have a You have to understand that I am a 56-year-old na-"super aggressive campaign to single out any tive Mississippian who has seen generation after gen- group of pe-ople" in their recruiting efforts. He eration of people not involved in higher educationreported that while there is a "pretty good inte- not involved in successful completion of a secondary gration" of activities within the community col- education. Those are not disposable people.... And in leges, he also believes there is some racial and many cases it's not practical for a working person toethnic tension. However, Dr. Ray suggested that go back and get a baccalaureate degree. They don't need one. But they do need skills to work. We're talk- less tension exists on the community college ing about quality of life by increasing per capita in- 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 333 Ibid. racial tension is driven by issues of race and 334 Dr. Thomas Layzell, Mississippi commissioner of higher economics, saying, "If we do not raise per capita education, believes that the state's community colleges are "the major provider of developmental or remedial education in the higher education system." Layzell Testimony, Hear- ing Transcript, p. 225. 338 Ray Interview. 336 While he did not present exact figures, Dr. Sutton argued 339 In Mississippi, the per-year tuition cost at a community that the transfer rate among minorities is lower than the college is approximately one-half the per-year tuition cost at transfer rate for nonminorities. He said that a contributing a four-year university. factor to such an outcome is that minority students are dis- 349 "Nontraditional" refers to older students and students, proportionately represented in nonacademic tracks within both white and black, "whose families and whose cultural the community college system. At one point, Dr. Sutton values typically do not send them to college." Ray Interview. quipped that "the transfer rate is very high for the very good athletes." Sutton Testimony, Hearing Transcript, p. 243. 341 Dr. Ray emphasized how accepting and supportive the community college environment can be. He pointed out that 336 Layzell Testimony, Hearing Transcript, p. 225. his own parents had dropped out of schoolhis father after 337 Ray Interview. While the transfer rate from the commu- the third gradeand that community colleges provided his nity colleges to the universities is low, those students who family and other "disenfranchised" people with a nonthreat- make the transition appear to perform nearly as well aca- ening introduction to higher education. Dr. Ray said his demically as students who enroll directly from high school family found community colleges to be "more accepting and into one of the eight universities. Data have been collected supporting. ... It's not just accepting; it's what they do for by Dr. Ray that compare "community college transfer sen- students once they get there. People who need to feel OK, iors" with "native seniors" at Delta State University, Missis- who need to feel the level of advice and support from people sippi State University, University of Mississippi, and the rather than a more impersonal environment on a larger, University of Southern Mississippi. Data are on file at the more complex campus. ... What we do well is we invite U.S. Commission on Civil Rights, Washington, DC. people to come and to succeed." Ibid.
70 income in this state broadly for most of the peo-African American, and that the graduation rate ple, we are going to continue to fight. .."342 for minority students is equal to that of nonmi- nority students. He said there is "complete inte- Race Relations and Desegregation gration"ofextracurricularactivities,"from Dr. Ann Homer Cook, a consultant in thehomecoming queen to student body president."346 area of education who recently completed writ- Dr. Wyatt does not believe that inequities in ing her doctoral dissertation on the U.S. v. Ford-funding have existed between the historically ice case, said there are contingents of bothblack and the historically white institutions. He whites and African Americans who do not wantargued that the distinction must be made be- to see meaningful integration at certain institu- tween schools that are "regional" schools (includ- tions because of what has occurred in the past.ing Jackson State, Mississippi Valley State, She reported that there are people who work atAlcorn State, and Delta State universities) and the University of Mississippi and at Jacksonthe "land grant" schools (including the Univer- StateUniversitywho rememberturbulentsity of Mississippi and Mississippi State Univer- events of the 1960s, including the controversysity). Dr. Wyatt said the "regional" schools have surrounding James Meredith as the first Africanall been funded exactly alike, whether they are American at the University of Mississippi, ashistorically black or historically white. He said well as the controversy surrounding the policethe "land grant" schools are better funded not coming onto the Jackson State University cam-because they are historically white institutions, pus, which resulted in student deaths. Dr. Cook but, rather, because their missions are much believes there are people at both historicallywider in scope, including research, outreach to white and historically black schools who stronglynearby communities, etc. Dr. Wyatt argued that oppose meaningful integration.343 the state cannot afford four "land grant" institu- Dr. Cook also suggested that there is a strongtions. He said the University of Southern Missis- feeling among African Americans that theirsippi and Jackson State are both moving toward community is bearing the bulk of the burden ofbecoming such schools, and this is acceptable desegregation. Said Dr. Cook, "Many Africanonly if the state has the funds to pay for it. For Americans are now asking themselves, 'Whynow, said Dr. Wyatt, Mississippi can afford four should we have to give upthrough closings orsuch schools only because the gaming industry is mergers or whateverthe black schools that we generating so much tax revenue for the state.347 relied upon for education during the time we Dr. Ray argued that most people believe the were excluded by law and by practice from theFordice decision to be "moderate" because it did traditionally white institutions?"344 And Dr. Wil- not create the degree of change that many peo- liam Sutton,president of historically blackple expected. He said: Mississippi ValleyStateUniversity,agrees, arguing that while African Americans did not They might have expected some bolts of lightning and create the system of segregation, now the burden reconfiguration. The thing that has been talked about of dismantling segregation has been unjustly most is which colleges and universities are going to be closed, and which ones are going to survive....I shifted upon them.345 think when that didn't happen, the decision lacked a Dr. F. Kent Wyatt, president of Delta Statekind of excitement and drama about it.... Butthe University, a historically white institution, said policymakers, by and large, see it as an ... opportu- that over 25 percent of the school's students are nity for improvement.348
342 Ibid. 348 Ann Homer Cook, education consultant, telephone inter- view, July 18, 1996. However, Dr. William W. Sutton, presi- 348 Wyatt Interview. dent of Mississippi Valley State University, argued that the 347 Ibid. Roger Malkin, chairman and CEO, Delta and Pine "fact that black colleges are predominantly black has noth- Land Co., argues the gaming industry, while generating ing to do with black people making that decision ... they significant state revenue, has had a negative impact on Mis- never segregated and discriminated ... the de jure system sissippi's low-income citizens. "For every new casino built, provided that...." Sutton Interview. there's a new pawn shop that goes up across the street," he 344 Sutton Interview. said. Malkin Interview. 345 Ibid. 348 Ray Interview.
71 Dr. Ray also suggested that while the impactwhite353provided the institution offers high- of Fordice will be "very positive," it willnot be quality programs and reaches out to students of "revolutionary." Said Dr. Ray: "I have been in- all races.364 He believes that "to the extent thata volved in school work since the 1960s, andas aracial identification is either... a badge of infe- rural Mississippian reared in that element, Iriority, or... serves to restrict choice on the ba- think that a lot of these things would not havesis of race," then "we need to do everythingwe happened without the court's interdiction....I can do [to correct it]."365 Mr. Kronley suggested think it's another installment, another incre-that white students will attend historically black ment in paying our dues for bringing aboutcolleges and universities only if the academic change."343 programs being offered are of a very high qual- Robert Kronley, the primary author of Trans-ity.366 As he put it, "high-qualityprograms at- formation Through Collaboration: Desegregatingtract whites."3" Higher Education in the Mississippi Delta,ar- Currently, of the eight public universities in gues that higher education in Mississippi hasMississippi, three are predominantly black and been "entirely reactive, and it's been reactive tofive are predominantly white.368 Dr. Ray,execu- judicial mandates, and that's not good enough."tive director of the State Community College He added, "Litigation can only goso far, and IBoard, believes this will remain the situation for think it's really at a point where we're beyondthe foreseeable future for tworeasons: first, be- litigation and it really depends on a lotmore cause of demographics; second, because many than that."350 "What it's going to take isa lotpeople simply do not want change tocome more than just reading the decision and thinking about.350 narrowly that we've complied with it....[O]ne First, as for demographics, Dr. Ray argued of the worst things that can happen is you'llthat the numbers of white students whoare tak- have full compliance with the decree and noth-ing college preparatory courses and planning to ing else, so the notion will be oh, this is passed, attend college are "feeding the pipeline, and it's it's gone away, we're done, we don't have to dogoing to stay that way for a while."360 any more, and we go back to where we were be- And second, as for people beingaverse to fore. That's unacceptable... change, Dr. Ray said: And yet, Mr. Kronley also suggestsa reason why more might not be done beyond what is There is that element always... We still have that court-ordered: "I think people have essentially mentality in some of our people... They're not all [been] afraid to take risks, because the potentialwhite and they're not all black... It represents a benefits that they see have not really beenpro- kind of thinking... It has to do with power and con- found. I mean, in order to take a risk you've trol in many ways... Some of it has to do with anxi- ex- ety and fear and distrust, where people don't trust posed yourself to being in the spotlight and tak-themselves in other people's hands, and if they lose ing a lot of heat from other people in thecom- controlmore specifically, if black people do not have munity, and I think that'syou know, there'sablack universities, they will not control universities history in the state, people being at a minimum that are majority white. They see thatas kind of a driven away if we do that... ."352 Robert Kronley testified that it will take 353 Kronley testified that "whether [the school is] 82 percent before people stop "think[ing] of X black or 64 percent black or 92 percent white. Just that or Y as a black college or a white college." He doesn't matter. The question is choice." Ibid., p. 312. suggested that it no longer matters if a school is 354 Ibid., pp. 310-12. looked upon as historically black or historically 355 Ibid., p. 312. whiteindeed, he suggested that it is irrelevant 356 Ibid., p. 308. what percentage of the student body is blackor 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 348 Ibid. University of Mississippi, Mississippi State University, Mis- sissippi University for Women, University of Southern Mis- 350 Kronley Testimony, Hearing Transcript, p. 291. sissippi, and Delta State University. 351 Ibid., p. 292. 358 Ray Interview. 352 Ibid., p. 301. 360 Ibid.
72 84 bastion, and I see part of their argument about that., closings would mean the elimination of two of What I'm afraid they give up in too many cases is the the state's top three degree-awarding schools for quality of service that they provide and diversity thatAfrican Americans in Mississippi.366 they need within their own universities, too, just like Finally, Dr. Anderson said that he had hoped white folks need diversity in theirs.36' that the Fordice lawsuit would be remedied by a long-range plan. Instead, he argued that a Dr. Leroy Morganti, vice president for uni-"quick-fix" has been put into placethat the versity advancement at historically white Deltacourt utilized "damage control" provisions rather State University, reported during the Missis- than instituting fundamental changes to the sys- sippi Delta hearing that the Fordice case did nottem. Dr. Anderson believes there's a strong feel- affect racial and ethic tensions on the campus ofing by the court that it's time to "move on." He Delta State University. Rather, said Dr. Mor-said that the most serious flaw of the court's rul- ganti, the case inspired a sense of "uneasiness"ing is that it keeps the state college system on campus because of the possible mergerthat"separate and divided" because none of the was going to take place between Delta Stateandschools are interdependent: there is no self- Mississippi Valley State universities. He saidinterest in the historically white schools or his- that "no one knew what was going to emergetorically black schools in working together. In- [after such a merger]. It was an institution thatdeed, Dr. Anderson believes there is a strong we would have to gain public acceptancefor, be- undercurrent of "mistrust and hostility" pervad- cause it wouldn't be them and itwouldn't being both historically white and black schools us."362 which is directed toward each other.366 Dr. James D. Anderson, professor of educa- Robert Davis, professor of law at the Univer- tion at the University of Illinois, suggested thatsity of Mississippi, said there are many "positive many of the plans being put into effect as a re-things" occurring with race relations in Missis- sult of the Fordice decisionincluding the raisedsippi. He said there is a "lot of baggage" in the admissions standards that have decreased thearea of race, that the "races understand each number of people of color entering Mississippi other well," and that this understanding fre- universitiesare a sort of "backlash or punish-quently leads to open and good debate and ex- ment" for filing the suit in the first place.363 Dr.change. However, Professor Davis argued that Anderson believes that, eventually, it will be thethere isstill a "dual society" in Mississippi, historically black institutions that are mostwhich is largely "by choice" on the part of both heavilyand negativelyaffected by the Fordicewhites and African Americans. He stated: case.364 Specifically, Dr. Anderson believes that while there are no plans to do this in the imme- When it comes to interacting socially, the atmosphere diate future, Mississippi Valley State will even-in Mississippi is different from other parts of the tually be closed and Alcorn State will be placed country. The different races are not comfortable with under the auspices of Mississippi State Univer- each otherseparation seems to be promoted in dif- sity. While he believes Jackson State will remain ferent ways, including in professional groups, in so- open as an "urban university," such mergers or cial groups, in churches, etc. You basically have two societies that go about their lives and only get to- gether when they have to. People don't seem to want 361 Ibid. bridges built.367 362 Leroy E. Morganti Testimony, Hearing Transcript, p. 251. 363 Anderson Interview. Of course, there was also testimony at the 364 The Fordice decision also brought to the surface a long- Mississippi Delta hearing to suggest that impor- standing paradox of the desegregation movement in higher tant social interaction is starting to take place education: the possibility that historically black colleges and among the different races. Dr. WilliamSutton, universitiesthe very institutions that provided oppOrtuni-president of historically black Mississippi Val- ties for blacks during times of segregationmight be sacri- ficed in the name of desegregation. In this context, the par- ley State University, said he "can see some allel with public schools is instructive. In elementary and secondary education, federal courts have long emphasized that the burden of remedying segregation should not be 365 Anderson Interview. placed disproportionately on the minority students who are its victims. See Southern Education Foundation, Redeeming 366 Ibid. the American Promise, p. 14. 367 Davis Interview. 73 85 changes... in the communities and the rotaryovercome a great deal in order to make people feel clubs and on bank boards and also in the cham- comfortable coming to school in a desegregated higher bers of commerce that we are beginning topar- education system, when the elementary andsecon- ticipate a bit more, and that will help, butwe dary education is still highly segregated, because of have a long ways to go."368 the private academies...[I]t's very difficult to make them change immediately on finishing 12th gradeto Dr. Anderson, professor of education at the come to an historically black college.372 University of Illinois, was an expert witness in the U.S. u. Fordice case. He visited most of Mis- Robert Davis, law professor at the University sissippi's universities and said there was anof Mississippi, was asked during the Mississippi "undercurrent" of hostility throughout the stateDelta hearing, "Do you think that racial and with "very little good will" on either side of theethnic tensions exist under the current univer- Fordice debate.369 Dr. Anderson believes thatsity system?" He replied, "Yes, I think theyare African American students who attend histori-exacerbated under the current universitysys- cally white schools feel alienated and unwelcome tem. ...I think the choices that are available on campus.370 Dr. Morganti, vice president forand the history upon which those choicesare university advancement at historically white made certainly exacerbate racial tensions."373 Delta State University, reported that the "cor- Later, Professor Davis was asked if racial and nerstone" of the school's "efforts to removemes- ethnic tensions had been exacerbatedas a result sages of segregation" on the campus is to provide of the current operating standards for thesys- a campus and classroom environment "wheretem. Professor Davis answered by describing students of all races feel welcome and comfort-racial incidents"all very recent"which have able ."371 taken place at the University of Mississippi, in- Dr. Sutton pointed out that whatever racialcluding an African American fraternity being and ethnic tension exists on the higher educa-burned shortly before opening; students being tion campuses must be considered in the contexttaken away from campus, stripped, and having of a long history of race relations, and in thecon- certain obscenities written on them; and obsceni- text of primary, secondary, and higher educa-ties written in the law school bathroom facilities. tion. Dr. Sutton said: He then concluded, "So there isIguess my re- sponse is that this systemic structure does help Actually the tension, if there is tension, is notso much related to the campus. It's a historical typeto exacerbate the tensions in my view."374 thing. When desegregation came to the Delta,a large And while Professor Davis said therewere number of academies were created for white students,"absolutely" no administrative policies at the and that is still going very strong here. So we have to state universities that were "responsible" for the racial tensions on the campuses, he stated:
368 Sutton Testimony, Hearing Transcript, p. 250. The argument that we've heard before is that stu-
369 Dr. Clinton Bristow Jr., president of Alcorn State Uni- dents are able to make free choices here. Well .. versity, concurred with this view. He said that race relations that's true in a way, but when your choices have his- statewide are tenuous. Dr. Bristow also stated the recenttorical basis and that structure continues to exist, the appointment by Governor Fordice of four white males to fill system is exacerbating the problem, not the policies vacancies on the Mississippi College Board has created a that currently exist in 1997, but a structure that situation that is racially contentious and adversarial. Dr. was Bristow argues that the board needs to be representative of established when each one of these institutionswas the entire college population in the stateblack and white. created and each one of the institutions thatwere Dr. Clinton Bristow Jr., president, Alcorn State University, chartered have in their charters very, very clearly telephone interview, July 24,1996. direct [mandates] whether or not they're supposed to, 379 Anderson Interview. Associate Professor Robert N. Davis educate white women or Negroes, to become teachers testified that African Americans often attend historically or what have you, and that is the structure.... I am black colleges and universities because such schoolsare disappointed with the conclusion by Judge Biggers "perceived to be a more supportive environment...." He that changing that structure is not constitutionally also commended administrators of the University of Missis- sippi for their willingness to review certain university sym- bols"like the rebel, like Dixie being played"that some members of the university community find offensive. Davis 372 Sutton Testimony, Hearing Transcript, pp. 249-50. Testimony, Hearing Transcript, pp. 285-86. 373 Davis Testimony, Hearing Transcript, p. 285. 371 Morganti Testimony, Hearing Transcript, p. 216. 374 Ibid., pp. 287-88.
74
8 6 mandated . .. untilthat system is adjusted, theserace. There are, however, practices. Some of problems will continue.376 them have been ingrained and have not really changed very much. ..," he said.376 Robert Kronley, the primary author of Trans- In the realm of the Mississippi public univer- formation Through Collaboration: Desegregatingsity system, a similar sentiment is expressed by Higher Education in the Mississippi Delta, picksDr. Roy Hudson, vice president for administra- up on this theme by arguing that, while blatanttion at Mississippi Valley State University and a policies are not working to discriminate, some- principal in the Fordice case since it began in thing lingers from the past which appears to in-1974. He said that Mississippi's public higher fluence individual and institutional behavior.education system "will never be without its ra- "[There are no longer policies in this state which cial duality."377 essentially work against people on the basis of
375 Ibid., pp. 288-89. Professor Davis, when asked near the conclusion of his testimony whether Mississippi was on the 376 Kronley Testimony, Hearing Transcript, p. 303 (empha- right path to providing equality of opportunity at its colleges and universities, responded, "A resounding no, absolutely." sis added). Ibid., p. 289. 877 Roach and Fields, "Mississippi Churning," p. 14. 75
8 7 CHAPTER 3 Voting Rights and Political Representationin the Mississippi Delta
VOTING RIGHTS LEGISLATION AND LITIGATION Similarly,following ratificationof the15th Reconstruction Amendment, Congress passed "an Act to enforce Following the end of the Civil War, two con-the Rights of Citizens of the United States to stitutional provisions were ratified to protect the vote in the several States of this Union, and for right of African Americans to vote.' The 14thother Purposes,"3 commonly known as the En- Amendment to the Constitution, which in partforcement Act of 1870. This act mandated that guaranteed equal protection of the laws, wasany citizen, otherwise qualified to vote, shall be ratified in 1868 and the 15th Amendment was entitled to vote without distinction torace, color, ratified in 1870. The 15th Amendment provided: or previous condition of servitude 6 The act also provided penalties for obstruction of the right to 1.The right of citizens of the United States tovote by election officials or other citizens.7 In vote shall not be denied or abridged by the 1871, the act was amended to strengthen the United States or by any State on account ofpenalties for fraudulent registration or failure or race, color, or previous condition of servitude. refusal to register entitled persons. The act also 2.The Congress shall have power to enforceestablished election supervisors for cities or this article by appropriate legislation.2 towns with more than 20,000 inhabitants.8 For a brief time, these protections afforded During Reconstruction, several statutes alsoAfrican Americans the ability to vote and elect were passed in an attempt to safeguard the fran-representatives of their choice. The state of Mis- chise rights of the newly freed slaves. The Mili-sissippi for example, from 1869 to 1901, elected a tary Reconstruction Acts of 1867 mandated thattotal of three black U.S. congressmen and 64 the southern states, as a condition of readmis-black state legislators.3 The electoral success of sion to the Union, adopt new constitutions pro-African Americans was short-lived, however. In viding suffrage rights for African Americantwo cases decided in 1875, the Supreme Court males.3 As a result, approximately 700,000 severely restricted use of the Enforcement Act,10 blacks, mostly former slaves, registered to vote.4 and in 1894 Congress repealed many of the re- maining sections. The only provisions of the act that survived were two sections creating civil 1 More specifically, the constitutional provisions addressed the right of African American men to vote. Women were not guaranteed the right to vote until ratification of the 19th Amendment to the Constitution in 1920. 5 Enforcement Act of 1870, 16 Stat. 140 (1870). 6 Id. 2 U.S. CONST. amend. XV. 3 Chandler Davidson, "The Recent Evolution of Voting 7 Enforcement Act of 1870, 16 Stat. 142 (1870). Rights Laws Affecting Racial and Language Minorities," in 8 Amendment to the Enforcement Act of 1870, 16 Stat. 433 Quiet Revolution in the South, eds. Chandler Davidson and (1871). Bernard Grofman (Princeton, NJ: Princeton University 9 Jessie Carney Smith and Carroll Peterson Horton, eds., Press, 1994), p. 21. Historical Statistics of Black America: Volume II (Gale Re- 4 Steven F. Lawson, Black Ballots: Voting Rights in the search, Inc., 1995), p. 1289. South, 1944-1969 (New York: Columbia University Press, 10 United States v. Reese, 92 U.S. 214 (1875); United States 1976), p. 2. v. Cruikshank, 92 U.S. 542 (1875). 76
88 liability on the part of persons who interfered, Grovey v. Townsend, 295 U.S. 45 (1935), with the right to vote (now 42 U.S.C. §§ 1983, overruled by Smith v. Allwright, Election Judge, 1985) and two sections imposing criminal sanc- 321 U.S. 649 (1944): In this case, the Court up- tions for hindering a citizen in the exercise of the held a resolution adopted by the Texas Democ- right to vote (now 18 U.S.C. §§ 241, 242). ratic Party at its state convention that restricted membership in the party and participation in its Litigation Prior to 1965 deliberations to white citizens of Texas. Based Congress did not address the issue of votingon this resolution, the black plaintiff was denied rights again until passage of the Civil Rights Acta ballot in the primary election. The Supreme of 1957." Prior to that legislation or enactmentCourt held that action by the party's state con- of the Voting Rights Act, litigation to protect thevention was not state action under the 14th or rights of people of color to vote was brought un-15th Amendments, and denial of the right to dertheConstitution,specificallythe15thvote in a primary, versus a general election, was Amendment and the equal protection clause ofmerely refusal of party membership and did not the 14th Amendment. The first of these casesviolate the Constitution. challenged impediments to voting that states erected to prevent the exercise of franchise Breedlove v. Suttles, Tax Collector, 302 rights by African Americans. U.S. 277 (1937), overruled by Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966): Guinn v. United States, 238 U.S. 347 (1915):This case considered the constitutionality of a The Court in this case considered the constitu-Georgia poll tax of $1, which applied to all in- tionality of an amendment to the Oklahomahabitants of the state between the ages of 21 and Constitution, which established a literacy test as 60, but not to blind persons or to women who did a condition for registering to vote or for voting,not register to vote. Payment of the tax was re- but exempted from the requirement people whoquired in order to register and vote in any elec- had been entitled to vote before January 1, 1866,tion. A white male challenged the statute as un- or their lineal descendants (known generally asconstitutional under the equal protection and a grandfather clause). The Court found thatprivileges and immunities clauses of the 14th there could be no reason for the grandfatherAmendment and the 19th Amendment. The clause other than to create a standard of votingCourt upheld the poll tax and found it violated that revitalized conditions existing prior to theneither the 14th nor the 19th Amendments. adoption of the 15th Amendment. Thus, it was void under the 15th Amendment to the Constitu- Smith v. Allwright, Election Judge, 321 tion. The Court also held that the literacy testU.S. 649 (1944): The Court in this case overruled itself was so connected to the grandfather clauseits previous decision in Grovey v. Townsend, and that the unconstitutionality of the latter ren- held the right to vote in primary elections was dered the entire amendment invalid. protected by the Constitution. This case again concerned the Texas Democratic Party's resolu- Nixon v. Herndon, 273 U.S. 536 (1927): Thetion that restricted membership to white citizens Supreme Court in this case held unconstitu- of Texas. The Court found that primary elections tional under the 14th Amendment a Texas stat-were conducted by the party under state statu- ute that barred blacks from voting in Democratictory authority and were a part of the machinery Party primary elections. Although the statutefor choosing officials. Although recognizing that was challenged under both the 14th and 15thgenerally membership in a party was not a con- Amendments, the Court did not consider thecern of the state, the Court held thatwhen 15th Amendment claim because it found it "hard membership was a qualification for voting in a to imagine a more direct and obvious infringe-primary to select nominees for the general elec- ment of the Fourteenth [Amendment]." tion, it became an action of the state, and in this case violated the 15th Amendment. Terry v. Adams, 345 U.S. 461 (1953): This case also concerned the voting procedures ofthe " Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634. Democratic Party in Texas. The Jaybird Associa- 77
8 9 tion, a county political organization, excluded"[c]ourtsought nottoenterthispolitical blacks from its membership and from its prima- thicket."12 ries. The Jaybirds held elections each year to select candidates for county offices to run for Gomillion v. Lightfoot, 364 U.S. 339 (1960): nomination in the official Democratic primary, Black residents of Alabama brought an action but these elections did not use any state ma-under the 14th and 15th Amendments of the chinery or funds. For the previous 60 years, the Constitution challenging a legislative action that Jaybird candidate entered the Democratic pri-changed the boundaries of the city of Tuskegee mary without opposition and eventually won the from a square to an irregular 28-sided figure. general election. The Court thus held that the This change resulted in removing from the city's combined election machinery of the Jaybird As-boundaries all but four or five of its 400 black sociation and the Democratic Party deprived pe-voters. The district court had dismissed the ac- titioners the right to vote because of their race,tion on the grounds that it had no authority to in violation of the 15th Amendment. change the boundaries of a municipal corpora- tion established by a state's legislative body. The Anderson v. Martin, 375 U.S. 399 (1964): In Supreme Court reversed, holding that although this case, the Supreme Court held that a Louisi-the exercise of a state power wholly within the ana statute requiring that nomination papersdomain of state interest is insulated from federal and ballots in all primaries and elections desig-judicial review, that insulation "is not carried nate the race of the candidate violated the equalover when state power is used as an instrument protection clause of the 14th Amendment. for circumventing a federally protected right."13 Harper v. Virginia State Board of Elec- Baker v. Carr, 369 U.S. 186 (1962): In this tions, 383 U.S. 663 (1966): The Court in thiscase, citizens of Tennessee brought an action case considered a challenge to the constitutional-claiming they had suffered a debasement of their ity of Virginia's poll tax. The Court held that avotes, in violation of the equal protection clause state violates the equal protection clause of theof the 14th Amendment. These allegations were 14th Amendment whenever it makes the afflu-based on the state's continued application of a ence of the voter or payment of any fee an elec- 1901 reapportionment act, and its failure to ac- toral standard. The Court thus expressly over-count for the fact that the population of Tennes- ruled Breedlove v. Suttles, Tax Collector. see had grown substantially and been redistrib- uted. The district court, relying primarily on Prior to the passage of the Voting Rights Act, Colegrove v.Green, had dismissed the claim constitutional claims also were raised to chal-based on lack of subject-matter jurisdiction and lenge the size and shape of voting districts. Atfailure to state a claim upon which relief could first, the courts declined to become involved inbe granted. The Supreme Court reversed, reject- an area viewed either as part of the political do- ing the notion that this was a nonjusticiable po- main or under the exclusive control of the states, litical question, and held that the allegation of a but later they began to adjudicate these cases. denial of equal protection presented a justiciable constitutional cause of action. Colegrove v. Green, 328 U.S. 549 (1946): This case involved an action brought by citizens Reynolds v. Sims, 377 U.S. 533 (1964): In of Illinois alleging that because of substantialthis case, the plaintiffs claimed that the appor- changes in population, congressional districts intionment of the Alabama. Legislature deprived the state lacked compactness of territory andthem of their rights under the equal protection equality of population. The Court affirmed theclause of the 14th Amendment. The 1900 census decision of the district court dismissing the com-continued to form the basis of the Alabama legis- plaint, holding that Congress had exclusive au-lative apportionment at that time, despite the thority to secure fair representation by thefact that populations in some counties had states in the House of Representatives and the
12 Colegrove v. Green, 328 U.S. 549, 555 (1946). 13 Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960). 78 9 0 grown substantially more than inothers. Theof voting records.19 The act also provided that if Court held the equal protection clause requiresinjunctive relief was granted in a suit brought by the seats in both houses of the State Legislaturethe Attorney General, the Attorney General be apportioned on a population basis. The Courtcould ask the court to find a pattern or practice recognized the right to vote can be infringed byof discrimination, and individuals in the jurisdic- dilution of voting power in addition to an abso-tion could apply to the court for a finding that lute prohibition on voting, and held any dilution they were qualified to vote.20 of a person's right to vote in comparison with The Civil Rights Act of 196421 also contained someone living in another part of the state vio-provisions relating to voting rights. It required lates the equal protection clause. This case isthat uniform standards, practices, and proce- commonly referred to as the "one person, one dures be applied in determining qualifications to vote" case. vote in any federal election; forbid denying the right to vote because of immaterial errors or The Voting Rights Act omissions on registration forms; and mandated Litigation proved to be a useful weapon in thethat if literacy tests were used, they must be battle to destroy discriminatory voting proce- administered to every applicant in writing and a dures and practices. It was a weapon that couldcertified copy be provided to the applicant.22 The only be used in limited circumstances, however,act also created a presumption, in any proceed- because it required a substantial commitment ofing brought by the Attorney General, that any- time and money. Ultimately, litigation aloneone with at least a sixth-grade education pos- could not effect the significant changes needed tosessed sufficient literacy to vote.23 To expedite secure the right to vote for eligible Africanvoting cases, the act provided that the Attorney Americans. Black voter registration, particularlyGeneral could request a hearing before a three- in the South, was very low, and in Mississippijudge court, with appeal directly to the Supreme only 6.7 percent of eligible blacks were regis- Court.24 tered to vote in 1964.14 In response, Congress Despite the enactment of these various civil began to pass important new civil rights legisla- rights laws, the most significant piece of legisla- tion, all of which contained some provisions ad-tion affecting the right to vote was the Voting dressing voting rights. Rights Act of 1965.25 Among its provisions, the Congress first passed the Civil Rights Act ofact: 1957,15 which, among other things, authorized the Attorney General to institute civil actions for prohibited the use, by any state or political injunctive relief on behalf of individuals de- subdivision, of any qualification or prerequi- prived of the right to vote in federal elections site to voting, or any standard, practice or and provided penalties for interference with fed- procedure, to deny or abridge the right of eral voting rights.16 The 1957 act also created any citizen to vote on account of race or the Commission on Civil Rights to investigate color.26 deprivations of the right to vote.17 provided authority to the courts, in any pro- Three years later Congress passed the Civil ceeding instituted by the Attorney General Rights Act of 1960,15 which mandated the reten- to enforce the 15th Amendment, to suspend tion, preservation, reproduction, and inspection the use of any test or device that the court
14 U.S. Commission on Civil Rights, The Voting Rights Act: is 42 U.S.C. §§ 1974, 1974b (1994). Ten Years After, January 1975, p. 43 (hereafter cited as 20 42 U.S. C. § 1971(e) (1994). USCCR, Voting Rights Act). 21 Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. 16 Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634. 22 42 U.S.C. §1971(a)(1994). 16 42 U.S.C. § 1971(b)(c) (1994). 23 42 U.S.C. §1971(c)(1994). 17 The section of the Civil Rights Act of 1957 that created the Commission on Civil Rights was superseded by the U.S. 24 42 U.S.C. §1971(g)(1994). Commission on Civil Rights Act of 1983, which begins at 42 25 voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. U.S.C. § 1975 (1994). 437. 18 Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86. 26 42 U.S.C. § 1973 (1994). 79
91 had found to have been used to deny orvember 1, 1968, and had less than a 50 percent abridge the right to vote.27 turnout or registration rate in the 1968 presi- provided for the automatic suspension of lit- dential election.33 The act also established a five- eracy tests and other devices for five years inyear nationwide ban on the use of literacy tests states and subdivisions where such tests andor other devices, prohibited the use of durational devices were maintained on November 1,residency requirements for presidential elec- 1964, and where less than 50 percent of thetions, and reduced the voting age to 18.34 In voting-age population was registered or had 1975, the act was extended for an additional voted in the presidential election of 1964. seven years, and the temporary nationwide ban Any state or subdivision could be exempted on the use of literacy tests and other devices was from this provision by obtaining a declara- made permanent.35 The 1975 amendments also tory judgment that such tests or devices had expanded the coverage of the act to include lan- not been used to accomplish discrimination guage minorities.36 in the preceding five years.28 The Voting Rights Act thus provided a new required that covered states and political cause of action to challenge discriminatory vot- subdivisions submit to the Attorney Generaling practices. One of the most important provi- any new or changed voting requirement. The sions of the act was section 5, which required Attorney General then had 60 days to inter-approval by the Attorney General of any new pose any objections. Alternatively, the statevoting qualification or prerequisite or any new could enforce the new requirement by ob- standard, practice, or procedure with respect to taining a declaratory judgment that it didvoting in the covered jurisdictions (which in- not have the purpose or effect of denying orcluded almost all southern states). The Court's abridgingrightsprotected by the15th broad reading of the application of section 5 was Amendment.29 instrumental in preventing new roadblocks to declared Congress' finding that the collection minority voter participation. of a poll tax as a precondition to register or to vote in state or local elections denied the South Carolina v. Katzenbach, 383 U.S. constitutional rights of citizens and author- 301 (1966): In this case, the Supreme Court con- ized the Attorney General to institute ac-sidered the constitutionality of certain provisions tions against the enforcement of any re-of the Voting Rights Act of 1965. The state of quirement of the payment of a poll tax.39 South Carolina challenged these provisions on provided for the appointment of federal elec- the grounds that they exceeded the powers of tion examiners and poll watchers upon the Congress and encroached on an area reserved to order of a court or the Attorney General.31 the states. The Court upheld the constitutional- contained criminal penalties for any officiality of the act, finding that it was a valid means of who abridged the right to vote or failed tocarrying out the commands of the 15th Amend- count the vote of any person, or for anyonement. who intimidated or threatened any person attempting to vote.32
In 1970, the preclearance and other provi- 33 42 U.S.C. § 1973b (1994). sions of the Voting Rights Act were extended for 34 42 U.S.C. §§ 1973aa, 1973aa-1 (1994). The voting age re- another five years, and coverage of the act was duction to age 18 was passed in the Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 301, 84 Stat. expanded to include any state or political subdi- 301. The 26th Amendment later became law on July 1, 1991. vision that maintained a test or device on No- The 26th Amendment states, in part, that "Mlle right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the 27 42 U.S.C. § 1973a(b) (1994). United States or by any State on account of age." U.S. 22 42 U.S.C. § 1973b (1994). CONST. amend XXVI. The current version of § 301 deals with the enforcement of the 26th Amendment. 42 U.S.C. § 2° 42 U.S.C. § 1973c (1994). 1973bb (1994). 3° 42 U.S.C. § 1973h (1994). 35 Voting Rights Act of 1965, amendments, Pub. L. No. 94- 31 42 U.S.C. §§ 1973a, 1973b (1994). 73, 89 Stat. 400. 32 42 U.S.C. § 1973i (1994). 36 42 U.S.C. 1973b(f)(1) (1994). 80
9 2 Allen v. State Board of Elections, 393 U.S.,der section 5 of the Voting Rights Act, seeking a 544 (1969): Here, the Supreme Court addresseddeclaratory judgment that a reapportionment of the applicability of section 5 of the Voting Rightsthe councilman districts did not have the pur- Act to recently passed laws and regulations in pose or effect of denying or abridging the right to Mississippi and Virginia. The changes institutedvote. Under the city's previous apportionment by the states included a change from district to plan, none of the five districts had a black major- at-large voting for county supervisors; a change ity of registered voters. Under the new plan, that made superintendents of education in 11blacks would constitute a majority of registered counties appointive instead of elective; changesvoters in one of the five districts. Based on the in the requirements for independent candidatesfact that blacks constituted 35 percent of regis- running in general elections; and new proce-tered voters in New Orleans, the lower court dures for casting write-in votes. The Court heldfound that the new plan failed to provide blacks that the Voting Rights Act should be given thethe opportunity to elect council members in pro- broadest scope possible and that all the aboveportion to their share of the city's registered vot- changes were subject to the section 5 preclear-ers, and thus it violated section 5. The Supreme ance requirements.37 The Court also acknowl-Court reversed, holding that the purpose of sec- edged a private right of action, holding that citi-tion 5 was to ensure that there was no retrogres- zens are entitled to seek declaratory judgmentsion in the position of minorities. Because the that a state has failed to comply with the Votingnew plan enhanced the position of minorities, it Rights Act. could not be found to have the effect of diluting or abridging the right to vote. Connor v. Johnson, 402 U.S. 690 (1971): In this challenge to a Mississippi reapportionment Morris v. Gressette, 432 U.S. 491 (1977): In statute, the Court held that a decree of the dis-this case, the Supreme Court held that judicial trict court is not within the reach of section 5 ofreview of the Attorney General's action under the Voting Rights Act. The Court also held that section 5 of the Voting Rights Act is precluded. when district courts are forced to fashion appor- tionment plans,single-member districtsare Presley v. Etowah County Commission, preferable to large multimember districts as a502 U.S. 491 (1992): Here, the Supreme Court general matter. was presented with two consolidated appeals concerning changes in the decisionmaking au- Perkins v. Matthews, 400 U.S. 379 (1971): thority of the elected members of two different The Court considered the applicability of sectioncounty commissions in Alabama. In Etowah 5 to several changes in voting procedures insti- County, the commission passed a resolution tuted by the city of Canton, Mississippi. Theshortly before thefirst black member was Court held that all of the changes, i.e.,(1) elected following the commission's restructuring changes in the locations of polling places, (2) an-pursuant to a consent decree. Where the com- nexations of adjacent areas, and (3) a changemissioners had previously controlled the moneys from ward to at-large voting for the election offor road repairs, maintenance, and improvement aldermen, were subject to section 5 clearance. for their own district, the resolution provided that all such moneys be maintained in a common Beer v. United States, 425 U.S. 130 (1976): account for the use of the entire county. In Rus- The city of New Orleans brought this action un-sell County, the commission passed a resolution delegating control over road construction, main- tenance, and inventory to the county engineer, 37 See also B.C. Foreman v. Dallas County, Tex., 521 U.S. 979 (1997) (holding that preclearance was necessary despite an official appointed by the entire commission the fact that the county was exercising its "discretion" pur- and responsible to it. Formerly, the commission- suant to state statute when it adjusted the procedure for ers themselves had exercised such control. The appointing election judges accordingto party power); Court reviewed its section 5 cases and deter- NAACP v. Hampton County Election Comm'n, 470 U.S. 166, 178 (1985) (holding that even administrative efforts to com- mined that there are four contexts in which sec- ply with a precleared statute may require separate preclear- tion 5 applies: (1) changes involving the manner ance because section 5 reaches informal as well as formal of voting, (2) changes in candidacy requirements changes). and qualifications, (3) changes in the composi- 81
9 3 tion of the electorate that may vote, and (4) Zimmer v. McKeithen, 485 F.2d 1297 (5th changes affecting the creation or abolition of anCir.1973),aff'd, East Carrol Parish School elective office. The Court held that neither of theBoard v. Marshall, 424 U.S. 636 (1976): The resolutions at issue fell within the four contextsFifth Circuit in this case considered a constitu- of changes "with respect to voting," which wouldtional challenge to at-large elections for school make section 5 applicable. Rather, the changesboard and police juries in East Carroll Parish, were mote in the nature of changes "with respectLouisiana. The Court held that while at-large to governance." and multimember districting schemes are not per se unconstitutional, they are unconstitu- Morse v. Republican Party of Virginia,tional if it is demonstrated that minorities have 517 U.S. 186 (1996): Here, the Supreme Courtless opportunity to participate in the political held that Virginia's Republican Party acted un-process and elect legislators of their choice. The der authority of Virginia when it picked its can- Court then delineated a number of factors to be didate for United States senator at the party'sconsidered in making such a determination, in- convention. Therefore, its imposition of a regis-cluding lack of access to the slating process; un- tration fee for voters to become delegates to theresponsiveness of legislators to the needs of the convention was subject to section 5 preclearance. minority community; a tenuous policy underly- ing the preference for multimember or at-large In addition to litigation under section 5 of the voting; the existence of past discrimination; or the Voting Rights Act that challenged changes to vot- existence of large districts, majority vote require- ing procedures enacted by states, vote dilution ments, and anti-single-shot voting provisions. claims continued under the Constitution and sec- tion 2 of the Voting Rights Act.38 These cases of- The standards from the above cases and the ten challenged practices such as multimemberfactors outlined in the Zimmer decision were districts or at-large voting that functioned toused in evaluating and adjudicating claims of minimize the voting strength of minorities. minority vote dilution under the Constitution and the Voting Rights Act until a Supreme White v. Regester, 412 U.S. 755 (1973): This Court decision in 1980.39 In Mobile v. Bolden,40 case involved a 14th Amendment challenge tothe Court considered whether the at-large sys- two multimember districts in the Texas House oftem for electing the Mobile, Alabama, City Representatives, claiming that they diluted theCommission violated the rights of black voters in voting strength of racial and ethnic minorities.the city under section 2 of the Voting Rights Act The Court noted it is not enough to allege aand the 14th and 15th Amendments. A plurality population has not had legislative seats in pro-of the Court reversed the decisions of the lower portion to its voting potential, but the plaintiffscourts, which had found that the at-large system must prove the political process was not equallyviolated the plaintiffs' rights and held that the open to participation by the particular group.plaintiffs must demonstrate discriminatory in- The Court upheld the lower court's decision thattent to prevail on vote dilution claims.41 the districts invidiously discriminated against black and Mexican American voters, finding the 1982 Amendments to the Voting Rights Act evidenCe of historical political discrimination In response to the Mobile decision, the Voting against these groups and the residual effects ofRights Act was amended again in 1982.42 The that discrimination sufficient to sustain theamendments restored the results standard prior judgment. to the Supreme Court's decision in Mobile v. Bolden and made clear that proof of discrimina- tory purpose was not necessary to establish a
38 This section provides that "[n]o voting qualification or 89 Mobile v. Bolden, 446 U.S. 55 (1980). prerequisite to voting, or standard, practice, or procedure 40 Id. shall be imposed or applied by any State or political subdivi- sion in a manner which results in a denial or abridgment of 41 Id. at 74. the right of any citizen of the United States to vote on ac- 42 Voting Rights Act Amendments of 1982, Pub. L. No 97- count of race or color. .. ." 42 U.S.C. § 1973 (1994). 205, 96 Stat. 131. 82
9 4 violation of section 2. The new language of the The extent to which members of the minority statute read: group have been elected to public office in the jurisdiction. No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed orAdditional factors that in some cases have had applied by any State or political subdivision in aprobative value as part of plaintiffs' evidence to manner which results in a denial or abridgment of the right of any citizen of the United States to vote onestablish a violation are: account of race or color. ... whether there is a significant lack of responsiveness A violation of subsection (a) is established if, based on on the part of elected officials to the particularized the totality of the circumstances, it is shown that the needs of the members of the minority group; whether political processes leading to nomination or election the policy underlying the state or political subdivi- in the state or political subdivision are not equally sion's use of such voting qualification, prerequisite to open to participation by members of a class of citizens voting, or standard, practice or procedure is tenuous.44 protected by subsection (a) in that its members have less opportunity than other members of the electorate The reinstitution of the results tests was particu- to participate in the political process and to elect rep- larly significant with respect to vote dilution resentatives of their choice.43 claims, where proof of discriminatory motive in the adoption of voting schemes such as multi- The SenateJudiciaryCommitteereportmember districts was increasingly difficult. The elaborated on typical factors probative of a sec- elements of proof necessary for a section 2 claim tion 2 violation: after the 1982 amendments were later clarified by the Supreme Court. The extent of any history of official discrimi- nation in the state or political subdivision Thornburg v. Gingles, 478 U.S. 30 (1986): that touched the right of the members of the In this case, the Supreme Court for the first time minority group to register, vote, or otherwise addressed the 1982 amendments to the Voting participate in the democratic process. Rights Act. The Court considered a claim that The extent to which voting in the elections ofmultimember districts for the North Carolina the state or political subdivision is raciallyLegislature diluted black voting strength in vio- polarized. lation of section 2. In addition to consideration of The extent to which the state or politicalthe relevant factors delineated in the Senate re- subdivision has used unusually large elec-port accompanying the section 2 amendments, tion districts, majority vote requirements,the Court held that the following three factors anti-single-shot provisions, or other votingmust be established to prove claims of vote dilu- practices or procedures that may enhance tion under section 2: (1) the minority group must the opportunity for discrimination againstbe able to demonstrate that it is sufficiently the minority group. large and geographically compact to constitute a If thereisa candidate slating process, majority in a single-member district; (2) the mi- whether the members of the minority group nority group must be able to show that it is po- have been denied access to that process. litically cohesive; and (3) the minority must be The extent to which members of the minorityable to demonstrate that the white majority group in the state or political subdivisionvotes sufficiently as a bloc to enable it usually to bear the effects of discrimination in such ar- defeat the minority's preferred candidate. eas as education, employment and health, which hinder their ability to participate ef- Chisom v. Roemer, 501 U.S. 380 (1991): The fectively in the political process. Supreme Court in this case held that section 2 of Whether political campaigns have been char-the Voting Rights Act applies to judicial elections. acterized by overt or subtle racial appeals.
44 S. Rep. No. 97-417. 97th Cong., 2d Sess. 28-29 (1982), 43 42 U.S.C. § 1973(a)(b) (1994). reprinted in 1982 U.S.C.C.A.N. 177, 206-07.
83
9 5 Growe v. Emison, 507 U.S. 25 (1993): In thiselectoral success for minority preferred candi- case, the Supreme Court held that the three pre-dates of whatever race. requisites identified in Thornburg v. Ging les as necessary to establish a vote dilution claim with In 1997, the Supreme Court addressed the in- respect to a multimember districting plan areterplay between sections 2 and 5 of the Voting also necessary to establish a vote fragmentationRights Act. In Reno v. Bossier Parish, the Su- claim with respect to a single-member district. preme Court addressed the issue of whether the Justice Department may consider if a legislative Voinovich v. Quilter, 507 U.S. 146 (1993):plan violates section 2 of the Voting Rights Act The Supreme Court recognized that manipula-in determining whether to grant preclearance tion of district lines can dilute the votingunder section 5 of the act." The Court held that strength of politically cohesive minority grouppreclearance may not be denied solely on the members, whether by fragmenting the minoritybasis that the voting plan violates section 2 but voters among several districts where a bloc-left open the Department's ability to use evi- voting majority can routinely out-vote them, ordence of a section 2 violation in some degree by packing them into one or a small number ofwhen deciding whether there is retrogression in districtsto minimize their influence in thethe position of minorities.47 neighboring districts. In 1996, however, the Court vacated its earlier decision based upon its Challenges to Majority-Minority Districts holdings in Shaw v. Hunt, 517 U.S. 899 (1996), For most of this century, voting rights actions and Bush v. Vera 517 U.S. 952 (1996) (below),brought under the Constitution have challenged and remanded the case to the,district court. Ap-practices that either were intended to or had the plying rational basis scrutiny, the district courteffect of abridging or denying the rights of mi- upheld the redistricting plan, finding that it didnorities to vote. Often in vote dilution cases chal- not violate the equal protection clause.45 lenging at-large or multimember districts, the remedy ordered by the court or agreed to by the Holder v. Hall, 512 U.S. 874 (1994): Thisparties involved the creation of single-member case involved a section 2 vote dilution challenge election districts with majority voting-age popu- by black plaintiffs against Bleck ley County,lations. More recently, 14th Amendment claims Georgia's single-commissioner form of govern-have been raised in opposition to the creation of ment. The plaintiffs claimed that the county majority-minority districts. should have a commission of sufficient size so that, with single-member districts, the county's United Jewish Organizations of Wil- black citizens could constitute a majority in oneliamsburgh, Inc.v.Carey, 430 U.S.144 of the districts. The Supreme Court held that,(1977): In this case, a group of Hasidic Jews because there was no objective and workablechallenged a New York State reapportionment benchmark against which to compare the exist-plan, alleging that their 14th and 15th Amend- ing practice, a challenge to the size of a govern-ment rights were violated when a portion of ing authority could not be maintained under sec-their community was reassigned to an adjoining tion 2. district in an alleged effort to achieve a racial quota in districts. The Supreme Court held that Johnson v. De Grandy, 512 U.S. 997 (1994): the use of racial criteria by the state in attempt- Addressing a redistricting plan in Florida, the ing to comply with section 5 of the Voting Rights Supreme Court held that the proportionalityAct did not violate the 14th or 15th Amend- (the percentage of majority-minority districtsments. The Court further held that compliance compared with the percentage of minoritieswith the act often requires the use of racial con- throughout the state) of race was a relevant con- siderations in drawing district lines, and the sideration in redistricting decisions. The CourtConstitution does not prevent the state from de- also noted that the ultimate goal of section 2 is liberately creating or preserving black majorities equality of proportionality, not a guarantee of
45 Quilter v. Voinovich, 981 F. Supp. 1032 (N.D. Ohio 1997), 46 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997). affd, 523 U.S. 1043 (1998). 47 Id. at 486-90. 84
96 in particular districts in order to comply withpreclearance demand was a compelling interest, section 5. held that the adopted plan was not narrowly tai- lored to meet that interest since Georgia's two Shaw v. Reno, 509 U.S. 630 (1993): In thisprevious plans could not have violated section 2 case, the Court considered a 14th Amendment of the Voting Rights Act.49 challenge by white voters to the creation of two majority-black congressional districts in North Shaw v. Hunt, 517 U.S. 899 (1996): In this Carolina. The Supreme Court held that thecase, the Court again considered the equal pro- plaintiffs stated a cognizable claim under thetection challenge to North Carolina's redistrict- equal protection clause of the 14th Amendmenting plan, which created two majority-black dis- by "alleging that the legislation, though racetricts. On remand from Shaw v. Reno, the dis- neutral on its face, rationally cannot be under-trict court upheld the constitutionality of the stood as anything other than an effort to sepa-plan, finding that it was narrowly tailored to rate voters into different districts on the basis offurther the compelling interest of complying race, and that the separation lacks sufficient jus- with sections 2 and 5 of the Voting Rights Act. tification."48 The Supreme Court reversed the lower court decision, holding that the plan was not narrowly DeWitt v. Wilson, 856 F. Supp. 1409 (E.D.tailored to further a compelling state interest. Cal. 1994), aff'd in part and appeal dismissed inThe Court assumed, but did not decide, that part, 515 U.S. 1170 (1995): The court in this case compliance with section 2 could be a compelling considered a challenge under the 14th and 15thstate interest. The Court held that to be nar- Amendments to California's redistricting planrowly tailored the action must remedy the an- claiming that it was a racial gerrymander andticipated violation or achieve compliance. In this diluted white voter strength. The court rejectedcase, the Court found that the district could not the claim, finding that the plan was not a racialremedy a potential violation of section 2 because gerrymander, but instead properly consideredthe district did not contain a geographically race as one of many factors along with tradi- compact population. tional redistricting principles and the require- ments of the Voting Rights Act. The court found Bush v. Vera, 517 U.S. 952 (1996): The that strict scrutiny is not required. The court Court in this case considered an equal protection found, however, that even if strict scrutiny werechallenge to three majority-minority voting dis- required, the California plan was narrowly tai-tricts in Texas. The Court found that the dis- lored to meet a compelling state interest. tricts were subject to strict scrutiny, and that they were not narrowly tailored to serve a com- Miller v. Johnson, 515 U.S. 900 (1995): Thepelling state interest. Again, the Court assumed Court in this case considered the constitutional-that compliance with section 2 could be a com- ity of Georgia's 11th Congressional District,pelling state interest, but held that the districts which was one of three majority-black districtsin this case were not narrowly tailored because created as a result of the Georgia Legislature'sthey were bizarrely shaped and far from com- 1992 congressional redistricting plan. The Courtpact, which was attributable to racially moti- first upheld the lower court's finding that racevated gerrymandering that subordinated tradi- was the predominant factor motivatingthetional districting principles to race substantially drawing of the 11th District, thus mandating the more than was reasonably necessary. TheCourt application of strict scrutiny. The Court foundalso held that for an interest in remedying dis- that the state's true interest in designing the 11th District was not to remedy previous dis- 49 The case was remanded to the district court, which de- crimination, but was to create a third majority- ferred to the State Legislature. After the Legislature was black district to satisfy the Justice Department's unable to reach agreement, the court drew its own plan, preclearance demands. The Court, assuming ar- containing one majority-black district. The district court's plan was challenged by voters and by the United States guendo that satisfying the Justice Department's alleging that the plan did not adequately take into account the interests of Georgia's black population. The Supreme 48 Shaw v. Reno, 509 U.S. 630, 649 (1993), reu'd, Shaw v. Court upheld the district court's plan in Abrams v. Johnson, Reno, 517 U.S. 899 (1996). 521 U.S. 74 (1997). 85
9 7 crimination to be compelling, the discriminationcal participation during Reconstruction. In 1870, must be specific and identified. for example, 30 of the 107 members of the Missis- sippi State House of Representatives were African Lawyer v. Department of Justice, 521 U.S.American, as were five of the 30 state senators. 567 (1997): The Court reviewed a legislative dis-At that time, African Americans represented a trict of the Florida Legislature. In holding thatmajority of registered voters in Mississippi.52 the district was constitutional, the Court noted This progress though did not last long. Those that the evidence supports the trial court's opin-who were against black suffrage resorted to ion that race did not predominate Florida's dis-various means to restrict the black vote. In 1890, tricting decision. The appellants had argued thatJudge J.J. Chrisman stated: there was a subordination of traditional district- ing principles evidenced by the facts that the It is no secret that there has not been a full vote and district encompassed more than one county, a fair count in Mississippi since 1875that we have crossed a body of water, was irregular in shape, been preserving the ascendancy of the white people by and contained a percentage of black voters revolutionary methods. In plain words we have been stuffing the ballot boxes, committing perjury, and... higher than the overall black population in the carrying the elections by fraud and violence until the constituent counties. The Court found that onwhole machinery was about to rot down. No man can each of the points, the district was no differentbe in favor of the election methods which have pre- from what Florida's traditional districting prin- vailed . .. who is not a moral idiot.53 ciples could be expected to produce. Further, although the Military Reconstruc- In the midst of the litigation regarding redis-tion Acts of 1867 had required southern states to tricting and the Voting Rights Act, another issueadopt new constitutions granting suffrage rights affecting redistricting has garnered attention.to African American males, the states were not Subsequent to the 1990 census, the Census Bu-prevented from later changing their constitu- reau found that it had undercounted the popula-tions. At Mississippi's constitutional convention tion.)3ased on the results of a "post-enumeration in 1890, the so-called Mississippi plan was survey," which attempted to measure the rate atadopted, which included several provisions in- which people were omitted or erroneously enu- tended to deny blacks the right to vote, including merated by the census, the Census Bureau de-a poll tax; a literacy test; a durational residency termined that the 1990 census resulted in a na- requirement; a disenfranchising crimes provi- tional undercount of 2.1 percent, or approxi-sion; and a dual registration system, which re- mately 5.3 million persons out of a total popula-quired separate voter registration for municipal tion of approximately 255 million.50 The under-elections.54 The goal of the convention was to count was greater for members of racial _and"devise such measures, consistent with the Con- ethnic minorities. Hispanics were undercounted stitution of the United States, as will enable us by 5.2 percent, African Americans by 4.8 percentto maintain a home government, under the con- and Asian and Pacific Islanders by 3.1 percent.51 trol of the white people of the state."55 The Su-
HISTORY OF VOTING RIGHTS IN MISSISSIPPI 52 Frank R. Parker, David C. Colby, and Minion K.C. Morri- The state of Mississippi was particularly re- son, "Mississippi," in Quiet Revolution in the South, eds. Chandler Davidson and Bernard Grofman (Princeton, NJ: sistant, even among southern states, to the pro- Princeton University Press, 1994), pp. 136-37. vision and protection of voting rights for African 53 James W. Silver, Mississippi: The Closed Society (New Americans following the Civil War. Blacks in York: Harcourt, Brace & World, Inc., 1964), p. 16. Mississippi did enjoy quick but short-lived politi- 54 Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245, 1251 (N.D. Miss. 1987) affd sub nom., Mis- 5° City of New York v. U.S. Dept. of Commerce, 34 F.3d sissippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 1114, 1121 (2d Cir. 1994), rev'd, 517 U.S. 1 (1996). 400 (5th Cir. 1991) (citing Miss. Corisr. of 1890, art. 12, §§ 51 Id. at 1121-1122. Reversing the Second Circuit's opinion, 241, 243, 244). The dual registration requirement remained the Supreme Court held that the decision by the Secretary until it was finally overturned in 1987. At that time, Missis- of Commerce not to statistically adjust the census using the sippi was the only state to have such a requirement. postenumeration survey violated neither the Constitution 55 United States v. Mississippi, 229 F. Supp. 925, 985 (S.D. nor federal law. Wisconsin v. City of New York, 517 U.S. 1, Miss. 1964), rev'd, 380 U.S. 128 (1965) (Judge Brown dis- 24 (1996). senting) (quoting Senator George). 86
9 3 preme Court upheld the constitutionalityof Mis- voter registration in Mississippi, which had sissippi's new constitutional provisions, findingreached 22,000 citizens in 1954, dropped to that the restrictions on voting did not violate the 12,000 the next year.62 14th Amendment, because they did not, on their In 1960, the Mississippi Constitution was face, discriminate between the races and because amended to require "good moral character" as a it had not been shown that the actual admini-qualification for voting, and in 1962 the Missis- stration was evi1.56 These restrictions were codi-sippi Legislature passed a series of provisions to fied by the Mississippi Legislature in 1892, andstop black voter registration. These measures thereafter, the number of blacks registered to voteincluded a "good moral character" requirement dropped to 6 percent of the eligible population.57 and a procedure for challenging the moral char- Efforts in Mississippi to increase and maintain acter of any applicant; a prohibition on any as- black disenfranchisement continued throughoutsistance in filling out voter registration forms; a the 20th century. With the inception of prima-ban on registrars providing applicants with rea- ries in 1902, the Democratic Party permittedsons for rejecting their applicationsfor registra- only white Democrats to participate.58 After thetion; a requirement that the names and ad- Supreme Court outlawed the whites-only prima-dresses of all applicants be published in the local ries, the Mississippi State Democratic Partypaper; a requirement that the applicant copy a passed a resolution in 1947 requiring those citi-section of the constitution selected by the regis- zens who wished to vote in the primaries to sweartrar and write an interpretation of the section allegiance to the principles of the party, whichand a statement of the duties and obligations of included opposition to federal legislation abolish-citizenship; and a requirement that no applica- ing the poll tax, punishing lynching, and estab-tion be approved unless all the blanks on the lishing a fair employment practice commission.59 form were properly and responsively filled out In response to the beginnings of the voterand both the oath and the application form registration movement in the 1950s, the Missis-signed separately.63 In 1962, the State Legisla- sippi Legislature in 1955 enacted several provi-ture also enacted a statute requiring all munici- sions intended to prevent black voter registra- palities with a mayor-board of alderman form of tion, including a prohibition on satellite registra-government to elect their aldermen on an at- tion and removal of the voter registration booklarge basis. The purported purpose of this law from the county registrar's office.68 This measure was "to maintain our southern wayof life."64 Re- eliminated a previous statutory requirementcently opened records of the Mississippi Sover- that registrars visit each precinct in the countyeignty Commission reveal that one circuit clerk to register voters, and meant that citizens had toin Union County remarked to an investigator to travel to the county courthouse to register tothe Sovereignty Commission that black registra- vote, often many miles awaya burden muchtion was going well because the people signing more difficult for blacks, who tended tobe poorerup were "good Negroes, not riffraff."65The clerk and had less access to transportation.61 Blackreportedly indicated that voter law restrictions, including the poll tax and a literacy test, were 56 Williams v. Mississippi, 170 U.S. 213, 225 (1898). keeping "riffraff' off the voting rolls.66 57 Chandler Davidson, "The Voting Rights Act: A Brief His- As a result of these statutory and constitu- tory," in Controversies in Minority Voting: The Voting Rights tional restrictions, along with extensive and bru- Act in Perspective, eds. Bernard Grofman and Chandler Davidson (Washington, DC: The Brookings Institution, 62 Mississippi State Chapter, Operation PUSH v. Al lain, 674 1992), p. 11. F. Supp. 1245, 1252 (N.D. Miss. 1987), affd sub nom., Mis- 59 United States v. Mississippi, 229 F. Supp. at 988. sissippi State Chapter, Operation PUSH v. Mabus, 932 F.2d 59 Id. at 988-89; Steven F. Lawson, Black Ballots: Voting 400 (5th Cir. 1991); Dittmer, Local People, pp. 70-71. Rights in the South, 1944-1969 (New York: Columbia Uni- 63 operation PUSH, 674 F. Supp. at 1252 (citing 1962 Miss. versity Press, 1976), p. 2. Laws 570, 575); United States v..Mississippi, 229 F. Supp. at so IvIississippi State Chapter, Operation PUSH v. AI lain, 674 996-97. F. Supp. 1245, 1251-52 (N.D. Miss. 1987), affd sub nom., 64 Frank Parker, Black Votes Count (Chapel Hill, NC: Uni- Mississippi State Chapter, Operation PUSH v. Mabus, 932 versity of North Carolina Press, 1990), p. 161. F.2d 400 (5th Cir. 1991). 65 "Racist Agency's Records Revealed," The Washington 61 Id.; John Dittmer, Local People: The Struggle for Civil Times, Mar. 18, 1998, p. A6. Rights in Mississippi (Urbana, IL: University of Illinois Press, 1994), pp. 70-71. 66 Ibid. 87
9 9 tal voter intimidation and violence, only 6.7per- trict, beginning in 1882 and continuing through cent of the eligible blacks in Mississippiwere redistricting plans adopted in 1932, 1952, and registered to vote in 1964.67 In the Deltacounty 1962. In 1966, however, the Legislature redrew of Sunflower there were 13,000 eligible blackthe lines of the district and divided the Delta voters, but fewer than 200 were registered. Simi-region among three congressional districts,re- larly, in Leflore County, only 250 blackswere sulting in a majority white voting-age population registered out of a black population of approxi-in all five districts.72 Racial gerrymandering also mately 30,000.68 The Mississippi State Legisla-occurred with respect to county supervisor dis- ture remained all white, in a state with a 42per- tricts, preventing the election of black supervi- cent black population, and the only black electedsors even with the existence of single-member officials in the state were themayor and city districts.73 council of the all-black town of Mound Bayou.68 Obstacles to black voting and candidacycon- Voter registration rates for African Ameri-tinued in Mississippi, as documented by the . cans changed dramatically following passage ofCommission during the 1970s. Blacksattempt- the Voting Rights Act, with the black registra-ing to register and vote faced dual registration tion rate in Mississippi rising to 59.8 percent ofrequirements, erratic hours at the clerks' offices, eligible voters by 1967.78 In response to the Vot-intimidation and humiliation by registration of- ing Rights Act, the Mississippi Legislature in itsficials, purging of voter registration rolls, denials 1966 session passed a series of measures chang-of ballots, and the location of polling places in ing the state's election laws, including switchingall-white clubs and lodges.74 African Americans from district to countywide elections; increasingseeking elective office also encountered barriers filing requirements for independent candidates;that made running for office and winningex- changing elected positions to appointedones; tremely difficult. These barriers included filing and combining majority-black counties withma- fees; obstruction by officials in obtaining infor- jority-whites ones. As a result, 14 countiesre- mation about qualifying to run and lists of regis- placed district elections with at-large electionstered voters; restrictions on and interference for county boards of supervisors, 22 countieswith the use of poll watchers by black candi- switched from district to at-large elections fordates; discrimination in vote counting; limited countyboardsofsupervisors,22counties access to the white community during cam- switched from district to at-large elections forpaigns; and restrictions on independent and county school board races, and 46 towns and cit- third-party candidates.78 ies in Mississippi changed to at-large elections Litigation under the Constitution and the for city council races.7i Voting Rights Act, in addition to section 5 objec- State officials also engaged in racialgerry- tions entered by the Department of Justice,were mandering in the years following passage of theinstrumental in increasing access to the political Voting Rights Act, particularly with respect to process for black citizens of Mississippi and pre- Mississippi's five congressional districts. Theventing implementation of laws enacted by the Mississippi Delta region, which has always hadMississippiLegislature intended to prevent the largest population of blacks in the state, his- black voter registration and participation. torically constituted a single congressional dis- Dyer v. Love, 307 F. Supp. 974 (N.D. Miss. 67 USCCR, Voting Rights Act, p. 43, table 3. This registra- 1969): This case concerned the districts for the tion rate was low even in comparison to other southern Washington County Board of Supervisors. The states, where the black registration rates were as follows: Alabama, 19.3 percent; Georgia, 27.4 percent, Louisiana, court held that absent clearance by the Attorney 31.6 percent; North Carolina, 46.8 percent; South Carolina, General under section 5 of the Voting Rights 37.3 percent; and Virginia, 38.3 percent. Even though the Act, the board of supervisors for Washington registration rates for African Americans in these stateswere higher in comparison to Mississippi, they stillwere 30 to 50 percentage points lower than white registration rates. Ibid. 69 Dittmer, Local People, pp. 70-71. 72 Ibid., pp. 41-43. 69USCCR, Voting Rights Act, pp. 128-29. 76 Ibid., pp. 152-56. 70 Ibid., p. 43. 74 USCCR, Voting Rights Act, pp. 69-130. 71 Parker, Black Votes Count, pp. 34-35. 75 Ibid., pp. 131-72. 88
100 County did not have the authority to order at-myself in 1967."77 In 1968, Mississippi had a to- large elections for county supervisor positions. tal of 29 black elected officials, and by 1974, this number had risen to 191. As of 1974, however, Moore v. Lel lore County Board of Elec-Mississippi still had only one black state legisla- tion Commissioners, 502 F.2d 621 (5th Cir.tor, far fewer than other southern states, all of 1974): The court in this case upheld the decisionwhich had lower black populations. For example, of the lower court, which ordered the county toAlabama had 15 black state legislators, Georgia hold district elections rather than at-large elec-22, Louisiana 9, North Carolina 6, and South tions for the Leflore County Board of Supervi- Carolina 13.78 The primary reason for the dearth sors because at-large elections diluted black vot-of black state legislators was the election plan in ing strength and failed to take into considerationuse at that time, which comprised mostly multi- legitimate planning objectives. The court alsomember districts. In 1971, 29 black candidates rejected a county reapportionment scheme thatran for office in multimember districts, and all diluted black voting strength and adopted an- but one of them were defeated. By 1979 Missis- other plan that created a majority-black voting-sippi instituted a new single-member district age population in four out of the five districts. plan for the Legislature, and 17 blacks were elected, 15 to the House and two to the Senate.70 Stewart v. Waller, 404 F. Supp. 206 (N.D. A new plan for Mississippi's congressional Miss. 1975): This case involved a challenge un-seats also led to the election of the state's first der the 14th and 15th Amendments to the 1962black congressman. In 1981, the Department of Mississippi statute that required at-large elec- Justice filed a section 5 objection to Mississippi's tions for all aldermen and city council positionscongressional district plan. As a result, a federal in municipalities, where they formerly had beenjudge developed a new plan, including the Sec- elected from wards. The court held that the stat- ond Congressional District, which encompassed ute violated the 14th and the 15th Amendmentsthe Delta region and created the only majority- as a purposeful device conceived and operated toblack district.80 In 1986, Mike Espy was elected further racial discrimination in voting. from that district, becoming the first black con- gressman from Mississippi since Reconstruction. O'Neal v. Simpson, 350 So. 2d 998 (Miss. During the 1980s, many battles were still be- 1977), cert. denied, 435 U.S. 934 (1978): Theing fought in Mississippi with respect to local Mississippi Supreme Court in this case consid- election districts to ensure the protection of vot- ered a challenge to a Mississippi statutory provi-ing rights for African Americans. Litigation con- sion that dictated that illiterate voters could re- tinued, with the filing of more than 30 county ceive assistance only from election managersredistricting cases, and Mississippi's dual regis- whereas blind and disabled voters could receive tration system, in effect since 1890, was finally assistance from any person of their choice. The overturned.81 The Department of Justice contin- court held that the provision violated the equal ued to monitor changes in election procedures in protection clause of the 14th Amendment. 77 Robert Clark, testimony before the U.S. Commission on Black political participation and registration Civil Rights, hearing, Greenville, MS, Mar. 6-8, 1997, in Mississippi began to increase slowly through- transcript, p. 705 (hereafter cited as Hearing Transcript). out the 1970s and 1980s. Mississippi elected 22 78USCCR, Voting Rights Act, pp. 50-51, 63. black candidates statewide in the 1967 elections, 79 Parker, Black Votes Count, pp. 122-26. mostly in justice of the peace and constable of- 88 See Jordan v. Winter, 604 F. Supp. 807 (N.D. Miss.), affd, 469 U.S. 1002 (1984), in which the court held that the in- fices.78 Included in this number was the state's terim congressional redistricting plan, which divided the first black state legislator elected since Recon- black population of the state into two high-impact districts struction, Robert Clark, who testified, "I was rather than concentrating it into one district, violated sec- elected November 1967. And, incidentally, when tion 2 by diluting minority voting strength. The court then approved a new plan that provided for a black voting-age Mayor Blackwell was talking about not being majority in one of Mississippi's five congressional districts. able to vote,...the first time I voted, I voted for 81 Mississippi State Chapter, Operation PUSH v. Allain, 674 F. Supp. 1245 (N.D. Miss. 1987), affd sub nom., Mississippi 76 Parker, Black Votes Count, p. 72; The Commercial Appeal, State Chapter, Operation PUSH v. Mabus, 932 F.2d 400 (5th Jan. 3, 1993, p. A9. Cir. 1991). 89
101 Mississippi, entering 48 section 5 objections toqualified elector for all municipal elections, a redistricting plans in 28 counties.82 resident was required to register with the mu- nicipal clerk after having registered at the office Kirksey v. Board of Supervisors, of Hinds of the county registrar. In addition, only munici- County, Mississippi, 554 F.2 139 (5th Cir.),pal clerks who had been appointed as deputy cert. denied, 434 U.S. 968 (1977): This case in-county registrars were eligible to register voters volved a challenge by black plaintiffs to the es- for county, state, and federal elections. This of- tablishment of a court-approved plan proposedten required residents to travel long distances to by the Hinds County Board of Supervisors for a county seat in order to register for nonmunici- voting districts in Hinds County, Mississippi.pal elections and resulted in a black voter regis- The plan created five districts that divided thetration rate that was 25 percent below that of predominately black city of Jackson, none ofwhite citizens. The court found these practices to which had a majority voting-age population. Al- be in violation of section 2 of the Voting Rights though the county had a black population of 39.1 Act.84 percent, no black had ever been elected to a county office. The Fifth Circuit held that the Martin v. Allain, 658 F. Supp. 1183 (S.D. plan violated the 14th and 15th Amendments Miss. 1987): In this case, the court considered a because it canceled or minimized the voting section 2 challenge to the at-large post-election strength of the black minority by fragmenting amethods and the multimember districts used to geographically concentrated minority and per- elect circuit, chancery, and county court judges. petuating a history of denial of access. On re- The court held that although many of the factors mand, the district court in Kirksey u. Board of considered in the "totality of the circumstances" Superuisors, of Hinds County, Miss., 468 F. test applied to all the judicial districts, the plain- Supp. 285 (S.D. Miss. 1979), approved the new tiffs proved a violation of section 2 only with re- plan that created two districts that had blackspect to certain districts, those in which there voting-age populations of 55 percent or more. In was a sufficiently large and geographically com- the 1979 county elections, two black candidatespact minority group which could constitute a were elected as county supervisors. They weremajority in a single-member district. In Martin the first black county supervisors elected in u. Mabus, 700 F. Supp. 327 (S.D. Miss. 1988), the Hinds County since Reconstruction.83 court ordered the creation of single-member subdistricts as a remedy for the section 2 viola- Jordan v. City of Greenwood, Mississippi, tion in Martin u. Allain. 599 F. Supp. 397 (N.D. Miss. 1984): In this case, the court found that Greenwood's at-large com- As a result of these and similar actions, the mission form of government violated section 2 of number of black elected officials in Mississippi the Voting Rights Act. began to rise gradually throughout the 1980s and into the 1990s. Many majority-black coun- MississippiStateChapter,Operationties in the Mississippi Delta, that had no or only PUSH v. Al lain, 674 F. Supp. 1245 (N.D. Miss. one black supervisor until the late 1980s, began 1987), aff'd sub nom., Mississippi State Chap- to elect black representatives (see appendix A). ter, Operation PUSH v. Mabus, 932 F.2d 400 Similar increases occurred with respect to black (5th Cir 1991): In this case, the court considered representationinmunicipalelectedoffices. a section 2 challenge to a dual registration re-Whereas in 1965 most cities and towns in Mis- quirement and a prohibition on satellite votersissippi elected city council and board of alder- registration. Under Mississippi statute, to be amen members through at-large elections, by
84 The district court gave the Mississippi Legislature the 82 Parker, Black Votes Count, p. 152. Each county in Missis- opportunity to cure the violation. In its 1988 session, the sippi is governed by a five-member board of supervisors. The Legislature enacted legislation eliminating the dual regis- districts from which the supervisors are elected also func- tration requirement and establishing satellite registration. tion as election districts for school board members, election The district court determined that the legislation cured the commissioners, justices of the peace, and constables. Ibid., violations of the Voting Rights Act. Mississippi State Chap- pp. 152-53. ter, Operation PUSH v. Mabus, 717 F. Supp. 1189 (N.D. 83 Ibid., p. 156. Miss. 1990), affd, 932 F.2d 400 (5th Cir. 1991). 90
02 1988 most had converted to ward or single- Some reports indicate that with the dramatic member district plans. As a result, the numberincrease in black representation in the Missis- of black elected officials on municipal governing sippi Legislature, there has been racial polariza- bodies rose substantially throughout the 1980s, tion among the members of the Legislature. nearly doubling between 1984 and 1993 (see ap- State Representative Barney Scobey stated he pendix B). had never seen a session more divided along ra- cial lines than the one ending in April 1993 in CURRENT POLITICAL REPRESENTATION IN which black representation in the Mississippi MISSISSIPPI Legislature had doubled.91 White lawmakers Although progress was slow, by the mid-counter that black lawmakers "can't deliver po- 1990s Mississippi had more black elected offi-litically...simply because they are not in step cials than any other state. Particularly in thewith a majority of voters in Mississippi."82 As Delta, where all the counties are majority black,recently as March 1998, the state Senate voted political representation for African Americans along racial lines, 39 to 9, rejecting a proposal to has risen significantly. compensate the families of civil rights workers Redistricting at the state and local levels con- killed during Mississippi's civil rights era.83 tinued after the 1990 census. Litigation filed in In 1949, political scientist V.O. Key stated 1991 resulted in reapportionment of the Statethat "the beginning and the end of Mississippi Legislature after which the number of black rep-politics is the Negro."84 Race and politics con- resentatives doubled. Before redistricting the tinue to be intertwined in Mississippi nearly half State Legislature was 11 percent black in a statea century later. For example, in the 1995 may- with a black voting-age population of 31.6 per-oral election in Greenville, George Patton, a cent. By the time of the Commission's hearing in Greenville city councilman and mayoral candi- March 1997, the State Legislature was 25.9 per-date, accused Paul Artman, a fellow councilman cent black, with 10 black senators, up from two,and mayoral candidate, of conspiring to prevent and 35 black representatives, up from 21.85a black majority on the counci1.95 Both candi- Robert Clark testified that there were severaldates were white. Artman and the others alleged majority-black districts that did not elect a black to be involved denied the charges. Artman, who member due to political differences among the ultimately won the race, stated he was "greatly black voting population.88 saddened for Greenville that everything must Testimony given at the Commission's hearingturn to race, especially when it comes to political indicated that Mississippi now has more black gains."98 electedofficials than anywhere else in the United States.87 By the end of 1992, there were Racial Bloc Voting more than 825 black elected officials in Missis- The increase in the number of black elected sippi.88 Overall, nearly 200 black elected officialsofficials in Mississippi can be attributed primar- were women.89 Unita Blackwell noted, however, ily to the creation of majority-black districts.87 In that women are not adequately represented in leadership position: "We are the workers, but we have a black woman in the State Senate when Senator Alice [are] still...trying to come into our own. And Hardin was elected, in Parker, Black Votes Count, pp. 142 I'm not just talking about black women; I'm talk- 43. ing about all women in the Mississippi Delta."80 91 National Public Radio, "Black Caucus Unable to Get Bills in Mississippi Passed," Morning Edition, Apr. 30, 1993. 92 Ibid. (quoting Mississippi State Senator Mike Gunn). 85 Clark Testimony, Hearing Transcript, p. 706. 93 "No Money for Rights Slayings," The Washington Post, 88 Ibid., pp. 706-07. Mar. 5, 1998, p. A8. 87 Unita Blackwell Testimony, Hearing Transcript, pp. 686 94 V.O. Key Jr., Southern Politics in State and Nation (New 87; Clark Testimony, Hearing Transcript, p. 687. York: Knopf, 1949), p. 229 (cited in Parker, Black Votes 88 Dittmer, Local People, p. 426. Count, p. 161). 89 Ibid., p. 427. 95 Valerie Buckingham, "Stories Differ On What Went Down 98 Blackwell Testimony, Hearing Transcript, p. 688. The in Mayor's Office," The Delta Gazette, Nov. 2, 1995, p. 3. first black female legislator in Mississippi was not elected 98 Ibid. until a special election in 1985 to fill a vacancy. In 1987, Mississippi became one of the first Deep South states to 97 Parker, Black Votes Count, p. 136. 91
1.03 the 1980s, almost 90 percent of the black south- 1987 from both sides' experts whose results and ern legislators were elected from majority-blackconclusions were "essentially the same," the court districts. Only four of the nearly 600 blackin Martin v. Attain found that "racial polarization elected officials in Mississippi in 1988were of voters exists throughout the State of Missis- elected from majority white districts, and only sippi...blacks overwhelmingly tend to vote for 19 were from districts that were less than 65blacks and whites almost unanimously for percent black.98 Similarly, throughout the South, whites in most black versus white elections."102 much of the increase in the number of black Benjamin Griffith expressed concern that the southern legislators has resulted from an increase gains made by enforcement of the Voting Rights in the number of majority-black districts.99 Act will be "questioned because ofa fewand I Witnesses at the Commission's hearing ex-emphasize, a very fewinstances of either local pressed some optimism that white crossover vot- or statewide racially gerrymandered districts. ing existed. Benjamin Griffith noted that MikeThis is not good. And I think itcomes back to a Espy received a substantial amount of whiteconcern that the Voting Rights Act through support in his re-election to the Congress inutilization of race-predominant districting has 1988.100 In his first bid for the seat, however,turned into a resegregation tool."103 Referringto former Congressman Espy received little whitethe recent Supreme Court voting rightscases, support.101 Further, after hearing evidence inBenjamin Griffith testified to the Commission that: 99 See Martin v. Al lain, 658 F. Supp. 1183, 1195 (S.D. Miss. 1987) (four blacks elected from majority-white districts); Those cases have generated few racial gerrymander Martin v. Mabus, 700 F. Supp. 327, 333-34 n. 1 (S.D. Miss. challenges, not in the Delta, but in counties thatare 1988) (19 black officials elected from majority-black districts peripheral to the Delta. And my concern is we'vecre- with less than 65 percent black). The "65-percent rule" has ated in some cases unjustifiable majority/minority been widely recognized by courts as the percentage at which districts. In this context I mean unjustifiable in the black voters will be able to elect the candidates of their choice. The figure reflects the reality that blacks generally sense of shape and race being the predominant mo- constitute a smaller proportion of the voting-age population tive for creating those.... Hopefully, that will not be than of the total population, are registered to vote at lowerthe case in Mississippi, but I've gotgrave concerns rates than whites, and turn out to vote at lower rates than about the Second Congressional District [in Missis- whites. See, e.g., Ketchum v. Byrne, 740 F.2d 1398, 1415-17 sippi]... We don't need litigation over racially ger- (7th Cir. 1984), cert. denied, 471 U.S. 1135 (1985) (indicating rymandered districts to start undercutting themas- that the 65-percent rule is widely recognized and accepted). sive and worthy gains that fighting and litigation and But see James v. City of Sarasota, Fla., 611 F. Supp. 25, 32- 33 (M.D. Fla. 1985) (appending a letter from Justice De- partment explaining that "Mhere is no 65% threshold popu- 1987). In the 1996 congressional elections, five incumbent lation figure applied as a rule of thumb by the Department black representatives who had originally won election from in redistricting matters reviewed under Section 5"). majority-black districts retained their seats despite changes 99 Lisa Handley and Bernard Grofman, "The Impact of the to their districts following wrongful districting challenges. Voting Rights Act on Minority Representation: Black Office- Despite their victories, however, it should be noted that the holding in Southern State Legislatures and Congressional races still exhibited racially polarized voting. For example, Delegations," in Quiet Revolution in the South: The Impact only 31 percent of white voters from Georgia's 11th District of the Voting Rights Act, 1965-1990, eds. Chandler Davidson voted for black incumbent Cynthia McKinney and only 36 and Bernard Grofman (Princeton, NJ: Princeton University percent of white voters in the state's Second District voted Press, 1994), pp. 335, 337. for black incumbent Sanford Bishop. Moreover, in two dis- 100 Benjamin Griffith Testimony, Hearing Transcript,p. 698. tricts, black voters still constituted a plurality of voters. Espy won the respect of the white planters in his Delta dis- 192 Martin v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. trict by supporting their interests as a member of the House 1987). Moreover, sociologist James Loewen analyzed the Agriculture Committee. He received 40 percent of the 'white results of the voting in a citywide referendum regarding vote in his re-election. Dittmer, Local People, p. 426. In whether the city should reform its at-large commission form 1995, the district court in Northern Mississippi noted racial of government or replace it with a council whereby nine bloc voting in Calhoun County but also noted a diminution council members would be elected from single-member dis- of racially polarized voting. Clark v. Calhoun County, Miss., tricts. Loewen found that, if one knew the voter's race, one 881 F. Supp. 252 (N.D. Miss. 1995), rev'd, 88 F.3d 1393 (5th could predict the direction of the vote with 95.7 percentac- Cir. 1996). curacy. Whites voted to keep the commission form; blacks 101 Griffith Testimony, Hearing Transcript, p. 698. In 1986, voted to change to the council form. Jerry Himelstein, "Rhe- Mike Espy ran as a Democrat and challenged white Repub- torical Continuities in the Politics of Race: The Closed Soci- lican incumbent Webb Franklin. Espy narrowly won, receiv- ety Revisited," The Southern Speech Communication Jour- ing 97 percent of the black vote and 12 percent of the white nal, vol. 48 (Winter 1983), p. 153. vote. Martin v. Allain, 658 F. Supp. 1183, 1194 (S.D. Miss. 193 Griffith Testimony, Hearing Transcript, p. 694. 92
104 years of toil have led us. And these are good results similar vein, Robert Sanders, assistant attorney that I'm afraid that, at least in some quarters, are'general in Mississippi, stated: being jeopardized.'"
In every election... people are urged to [vote] ... the Barriers to Black Political Participation media are flooded with requests to vote. In between Although significant progress has been made, elections all public officials that I know of are con- subtle barriers to full political participation re- stantly going around and talking to high schools, even main. Black voter registration and voting stillthe junior highs, imploring kids to get interested in lag behind that of white citizens.105 Luther Alex-the process. It's simply at some point, it's a question ander testified that "[v]oter registration hasn't of individual behavior, whether people want to vote or not ..., there aren't barriers to registering.'" been a problem, but we have had problems in getting people to vote. So apathy is something Witnesses testified about the correlation be- we need to discuss this morning: why peopletween electoral participation, and poverty and don't vote."06 He expressed concern that votereducation. Mr. Griffith testified as to his belief apathy would lead to the loss of black electedthat "education is absolutely the key, without officials.107 The primary reason for this shortfallwhich we'll make no progress in the Mississippi appears to be cynicism among black citizens andDelta. In electoral participationminority ac- a loss of confidence in government and in thecess and mobilizationI think the two are di- ability of officials to change their lives. rectly related, and I think those also are directly While some point to the historical condition ofrelated to poverty."m Similarly, Ms. Blackwell African Americans in Mississippi as affectingtestified that "when you study the poverty, eco- voter registration, Benjamin Griffith testified'nomics, the education, all of that hooks in to- that the "extent to which there's a direct rela-gether [with voting]. You've got to have [all] of it tionship between past official discriminationgoing together. If you don't have it all going to- against African American citizens, the extent ofgether, you know, that's how we fall down on that relationship as it compares to black elec-this side."Ill toral participation is getting more and more Census figures demonstrate that voter par- tenuous, more and more attenuated."108 In aticipation increases dramatically with family income (see table 3.1). For example, among fami- lies with income between $5,000 and $9,999, the 1" Ibid., pp. 695-97. percentages who were registered and those who 1" See, e.g., Blackwell Testimony, Hearing Transcript, pp. actually voted in November 1994 were 40.6 per- 688-89 ("I think that we have to take a look at ... what is cent and 20 percent, respectively. Similarly, the situation in our country that makes us not appreciate this great right to vote"). among those whose income was between $10,000 106 Luther Alexander Testimony, Hearing Transcript, pp. and $14,999, 51 percent were registered and 33 702-03. Similarly, Unita Blackwell testified that the Com- percent voted in November 1994. In contrast, mission should examine whether young people "[are] getting among those with a family income of at least ready to vote, or are they getting to this climate that's in $50,000, 76.8 percent were registered and 60.1 America that says ... it's not going to solve anything or why should we go out and vote, and that kind of thing. And I percent actually voted. While 25.2 percent of think that we have to take a look at .. . what is the situation in our country that makes us not appreciate this great right to 109 Robert Sanders Testimony, Hearing Transcript, p. 810. vote." Blackwell Testimony, Hearing Transcript, pp. 688-90. 110 Griffith Testimony, Hearing Transcript, p. 726. Griffith 1" Alexander Testimony, Hearing Transcript, p. 705. also noted, "We will not be mobilized and will not have par- 108 Griffith Testimony, Hearing Transcript, p. 733. Interest- ticipation and will not have that equal access and opportu- ingly, following ratification of the 19th Amendment in 1919 nity that the Voting Rights Act guarantees until we deal until World War II, when women began to enter the work with the poverty question through education. I think they force in unprecedented numbers, women registered and are inextricably related. Those are three things that I think voted at a much lower rate than did men. Even until the you can't deal with singly or in isolation." Ibid., p. 728. 1980s, the rate for women still lagged behind that for men 111 Blackwell Testimony, Hearing Transcript, p. 722. See by at least 10 percentage points. Karen McGill Arrington, also Brenda Wright Testimony, Hearing Transcript, p. 809 "The Struggle to Gain the Right to Vote: 1787-1965," in ("Steps that need to be taken to ameliorate the still very Voting Rights in America, eds. McGill Arrington and Wil- significant differences between white and black citizens in liam L. Taylor (Washington, DC: Leadership Conference terms of their access to jobs, to economic security, to a good Education Fund and the Joint Center for Political and Eco- education. Those things are all tied up with political partici- nomic Studies, Inc., 1992), pp. 32-33. pation").
93 105 Mississippi's population had income in 1989 be-cent turnout among persons with at least a low the poverty line, the percentage of the black bachelor's degree. population with income below the poverty line is In Mississippi, there are discrepancies in much higher, at 46.4 percent."2 In contrast, onlyeducationalattainmentamongblacksand 13.2 percent of the white population had incomewhites. Among persons 18 to 24 years old, the below the poverty level in 1989.113 percentage of whites with a high school degree or better is 78.1 percent; the percentage of blacks TABLE 3.1 who have achieved at least a high school degree is65.7 percent."4 The discrepancy becomes Voting and Family Income in the 1994 Election wider among older persons. For example, 71.7 % registered % voted percent of whites and 47.3 percent of blacks who Under $5,000 40.6 20.0 are 25 years old and over have at least a high $5,000-$9,000 43.2 23.5 school degree."5 Among persons over 24 years $10,000-$14,999 51.0 33.0 old, the percentage of whites having a bachelor's $15,000-$24,999 58.0 40.4 degree is nearly twice that of blacks."6 Among $25,000-$34,999 63.1 44.9 persons 25 to 34 years of age, the percentage of $35,000449,999 68.1 50.1 white and black males who have a bachelor's $50,000 and over 76.8 60.1 degree is 19.6 percent and 6.6 percent, respec- Not reported 54.6 41.3 tively."7 The percentage of white and black fe- males who have a bachelor's degree is 19.9 per- SOURCE: U.S. Department of Commerce, Bureau of the Census, cent and 10.3 percent, respectively."8 "Characteristics of the Voting-Age Population Reported Having Registered or Voted: November 1994,"
There's so much attention on spending money and TABLE 3.2 buying TV ads and so much less attention on grass- Voting and Educational Attainment in the 1996 Election roots and knocking on doors, even by the major politi- cal parties, calling up voters and finding out, you % registered % voted know, are you going to the polls. ... I know some na- Less than high school 40.7 29.9 tionwide studies have looked at that as a possible Some high school 47.9 33.8 cause of declining voter participation.119 High school graduate 62.2 49.1 Some college, including Ellis Turnage offered the Commission some associate degree 72.9 60.5 suggestions on increasing black political partici- bachelor's degree or higher 80.4 72.6 pation. He noted that hotly contested races draw minorities out to vote. Some come to the polls on SOURCE: U.S. Department of Commerce, Bureau of the Census, "Voting and Registration: November 1996," table 23,
C 6 advocated that at-large districts be eliminated 1997, Representative John Conyers (D-MI) in- throughout Mississippi.122 Finally, he suggestedtroduced legislation that would give former of- that the state provide money for "get out the fenders who are otherwise qualified the right to vote" efforts.123 vote in federal elections once they have been re- Remnants of the former dual registration sys- leased from prison.128 tem still affect some citizens. As noted earlier, African Americans running for office also en- Mississippi voters previously had to register forcounter obstacles. Ms. Blackwell testified as to municipal elections with the municipal clerk af- the importance of money in elections.120 Black ter having registered at the office of the countycandidates in Mississippi are not as well fi- register.124 Because elimination of the dual sys-nanced as white candidates and have difficulty tem was not retroactive, persons who registeredraising money.130 White candidates often have at the county before 1988 would still be unregis- the ability to hire poll watchers, a luxury few tered for municipal elections. black candidates can afford. Robert Clark noted, Another issue affecting black voter registra- "When I ran for Congress in '82 and '84, if we tion is the disenfranchisement of African Ameri- had gotten three more votes in each box can voters because of felony convictions. As more throughout the district, we would have been the young blacks are being put through the criminal winner. But when we analyzed our votes we ana- justice system, they are losing the right to vote. lyzed certain areas that had the same minority A recent study by the National Sentencing Pro-percentages, where we had poll watchers we won ject reported that about 4.2 million voting-age in those areas. And in similar areas where we Americans cannot vote because they are in did not have the poll watchers, we lost."131 prison, on parole, or have permanently lost the right to vote because of their convictions.126 Of Impact of Black Political Power in Mississippi that number, about 1.4 million are black males, Although African Americans in Mississippi which means that one in seven otherwise eligible have achieved substantial electoral success, the black males cannot vote.126 In Mississippi, oneability to translate that success into economic who has been convicted of certain crimes as gain and power has been less certain. According listed in the state's constitution may not voteto Children's Defense Fund figures, more than even if he has already served his term.127 Inhalf the state's bladiehildrenlived below the poverty line in 1990.132 Census figurs, also indi- cate that black per capita income was less than 122 Ibid. half that of whites in Mississippi.133 With respect 123 Ibid., p. 816. 124 Mississippi State Chapter, Operation PUSH v. Al lain, 674 F. Supp. 1245, 1248-49 (N.D. Miss. 1987), affd sub 128 H.R. 568, 105th Cong., 1st Sess. (1997). The bill was re- nom., Mississippi State Chapter, Operation PUSH v. Mabus, ferred to the House Judiciary Committee in February 1997 932 F.2d 400 (5th Cir. 1991). and has had no further activity since that time. 123 Frank Green, "CURE Advised to Win Back Vote for Fel- 129 "Another thing that's here that we are talking about is ons," The Richmond Times Dispatch, June 9, 1997, p. B3. that you have to be rich, rich, rich to become an elected offi- 126 Ibid. cial. That is not always the best elected official." Blackwell 127 MISS. CONST. art. 12, § 241 (1998). See also Miss. CODE Testimony, Hearing Transcript, p. 689. ANN. § 23-15-19 (1998). There have been resolutions intro- 130 Similarly, it appears that members of the Congressional duced in the Mississippi Legislature to broaden the class of Black Caucus raise significantly less money than the aver- felons to be precluded from voting. See H.R. Con. Res. 6, age House member. For example, during the 1991-1992 1998 Reg. Sess., 1998 M.S. H.C.R. 6 (1998). Mississippi had election cycle, the average caucus member raised $370,000, a history of selectively excluding certain felons from voting versus $543,000 for the average House member. David A. in an effort to disqualify blacks; in 1890, Mississippi re- Bositis, The Congressional Black Caucus in the 103rd Con- placed a constitutional provision disenfranchising citizens gress (Washington, DC: Joint Center for Political and Eco- convicted of any crime with one barring only those convicted nomic Studies, 1994), p. 28. of certain petty crimes that blacks were supposedly more 131 Clark Testimony, Hearing Transcript, pp. 713-14. likely to commit than whites. See Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896). See also Andrew L. Shapiro, "The 132 Dittmer, Local People, p. 427. Disenfranchised,"The AmericanProspect,November 133 The per capita income for white persons was $12,183 as December 1997, p. 60. The Supreme Court unanimously compared with $5,194 for black persons. U.S. Department of struck down an Alabama constitutional provision with a Commerce, Bureau of the Census, Social and Economic similar history of racial discrimination. Hunter v. Under- Characteristics: Mississippi, 1990 Census of Population, No. wood, 471 U.S. 222 (1985). CP-2-26, p. 82. 95
107 to the Mississippi Delta, 53 percent of its blackin 1993 that white lawmakers did not appoint residents live in poverty, compared with 13.1blacks to key committee posts commensurate percent for the nation as a whole.134 with their numbers and frustrated legislative Robert Clark testified that "the greatest de- initiatives introduced by blacks.140 In contrast, terrent to progress in the state of Mississippi is the 1980s saw black legislators wielding consid- the lack of economic development."133 He noted,erable influence by allying themselves with "We have the black political power. We have the moderate white Democrats. The efforts of the greatest number of black elected officials, but webiracialcoalition resulted in doubling state have not transformed that into economic devel-spending on,,education, tripling Medicare fund- opment."136 Mr. Clark posited that the blacking, adoptinglandlord-tenant reforms, and pass- members of the Legislature "have not success- ing affirmative action legislation with respect to fully united to use our force the way we should. state contracts.141 We're too hung up on individual personalities, Moreover, others point out some steps toward rather than forgetting that and uniting for theprogress. When Unita Blackwell was elected cause."137 mayor of Mayersville in Issaquena County, she Ellis Turnage, an attorney from Cleveland,had four sets of public housing built. It was the Mississippi, was even more critical in assessingfirst time that the federal housing program had the failure of black political representation inever been in that county. Problems of water improving the quality of life for Mississippi'sshortages and clean water access in the Delta black citizens. In response to a question regard-have been addressed through increasingly effec- ing whether any change has occurred, he re-tive federal representation, beginning with Mike plied, "Very little."138 In following up, Mr. Tur- Espy and continuing with Bennie Thompson. nage noted: Their action has brought in federal grants and low interest loans for water projects and other If it was my ... intention to increasethe quality ofprograms that are trying to reach into these life for voters or citizens in my political subdivision, pockets of poverty and provide sewage control, if that was my goal or my aim, then you'd all be able sanitation, and infrastructure.142 Further, as to see evidence in the quality of life, improvements discussed in chapter 1, the Delta also is the loca- in housing, education, the likes. I see very little oftion of an empowerment zone that residents that. ... Ilistened to my fellow comrade from Cleve- land, Mr. Griffin, talk eloquently about the progres- hope will spawn greater economic development. siveness and how they had the first county adminis- Some have pointed toward other noneconomic trator in Mississippi and all of the jobs that they have benefits to black political empowerment in Mis- brought to Bolivar County and everything. ... Ihaven't sissippi. Frank Parker noted that racial violence been able to see the same changes that he sees. ... against blacks in Mississippi, while not elimi- nated, has dramatically declined since the in- If ... my stated objectiveand intent is to increase the economic attainment of black voters in this country, crease in black voter registration after 1965.143 then you ought to be able to produce statistical evi- Moreover, he noted that racial rhetoric in politi- dence to document that. And I'm not seeing it.139 140 National Public Radio, "Black Caucus Unable to Get Bills As noted above, the increase in black repre- in Mississippi Passed," Morning Edition, Apr. 30, 1993. sentation in Mississippi's Legislature has been 141 Ibid. Others believe that Mississippi's black legislators accompanied by increased racial polarization in have made the Legislature more responsive to black needs in the enactment of legislation for educational reform, the the Legislature. This polarization has hindered establishment of state-financed kindergartens for the first the effectiveness of black legislators. For exam- time in the history of the state, improvements in the state ple, State Representative Barney Scobey noted education financing system, the enactment of salary increases for public schoolteachers, improvements in the provision of health care under Medicaid, and the blocking of an increase in 134 Bositis, The Congressional Black Caucus, p. 26. the state sales tax. Parker, Black Votes Count, p. 134. 136 Clark Testimony, Hearing Transcript, p. 681. 142 Reed Branson, "Black Son of Delta Carried Hopes to High Places," The Commercial Appeal, Aug. 28, 1997, p. 136 Ibid., p. 710. A13. See also Sheryl Stolberg, "New Housing for Poor 137 Ibid., pp. 707-08. Sprouts from Cotton Field; No More Rats or Leaking Roofs," 138 Turnage Testimony, Hearing Transcript, p. 788. The Record, Feb. 3, 1997, p. A19. 139 Ibid., pp. 788-90. 143 Parker, Black Votes Count, pp. 199-200. 96 cal campaigns has been curtailed.'" Further,tions and October 1996, more than 22 million Parker also found that the influence of blackAmericans had registered or reregistered to vote voters, though not a statewide black majority, under the motor voter law.146 In Mississippi, an has changed the white state leadership.145 Inestimated 10,000 citizens registered under the addition, Robert Clark noted that the attitude oflaw.150 According to Brenda Wright, Mississippi the Legislature has become more consideratehad one of the lowest percentages of NVRA toward black members and to black Mississip- transactions relative to its voting-age population pians since the increase in black political repre-from January 1995 through June 1996, the first sentation.146 18 months of the NVRA's operation, than any other state.151 NATIONAL VOTER REGISTRATION ACT Prior to the implementation of the motor In 1993, Congress passed the National Voter voter law, Mississippi had a unified system for Registration ACt147 (NVRA), commonly known as voter registration in which a person was eligible the motor voter law, which requires states to to vote in any election, whether federal, state, or make registration more accessible through motorlocal, upon registering to vote.152 The unified vehicle administrations, welfare and disabilitysystem included voter registration by mail, agencies, libraries, the U.S. mail, military re-availability of state voter registration forms at cruitment offices, and other outlets. A report bydrivers' license offices, and fairly uniform local Human SERVE, a nonprofit lobby for voter reg- voter registration procedures.153 Mississippi had istration reform, estimates that a record 11.2implemented the unified systeni following fed- million Americans registered to vote in 1995, aeral court decisions that the previous dual regis- greater number than at any time since voter reg- tration requirement violated section 2 of the Vot- istration practice was established in the lateing Rights Act because it had resulted in a "de- 19th century.145 The Christian Science Monitor nial or abridgment of the right of black citizens reported that between the 1994 midterm elec- in Mississippi to vote and participate in the elec- toral process."154 Upon first implementing the motor voter law, 144Ibid., pp. 200-201. Parker argued that racial campaign- Mississippi continued to maintain the unified ing continued to exist, however. For example, in a 1982 con- gressional race against Robert Clark, who is black, Webb system for those registering to vote in both fed- Franklin appealed to white voters with the slogan, "He's eral and state elections for those voters register- One of Us." A Franklin television ad had the following voice- ing pursuant to the state's pre-existing proce- over narrative: "You know, there's something about Missis- dures.155 Those voters registering at motor vehi- sippi that outsiders will never, ever understand. The way we feel about our family and God, and the traditions that we cle or other locations pursuant to the motor voter have. There is a new Mississippi, a Mississippi of new jobs law, however, are allowed to vote only for federal and new opportunity for all our citizens [video pan of black offices. Those who wished to vote for state and factory workers]. We welcome the new, but we must never, ever forget what has gone before [video pan of Confederate 143James L. Tyson, "Motor Voter Law Yields Results, Some monuments]. We cannot forget a heritage that has been Reproach," Christian Science Monitor, Oct. 11, 1996, p. 3. sacred through our generations." Ibid., p. 201. Webb Frank- lin won the race. In addition, a district court found proof of 150"Mississippi, Clinton Administration Spar Before High racial appeals by white candidates in two 1986 elections. Court on Motor Voter Law," The Commercial Appeal, Jan. 7, Indeed, the racial appeals in one race "were overt and con- 1997, p. A5. tained no subtlety." Martin v. Allain, 658 F. Supp. 1183, 131Wright Testimony, Hearing Transcript, p. 776. 1195 (S.D. Miss. 1987). See also Jerry Himelstein, "Rhetori- 152Complaint at para. 16, United States v. State of Missis- cal Continuities in the Politics of Race: The Closed Society sippi, Civ. Action No. 3:95CV197 (S.D. Miss. 1995). Revisited," The Southern Speech Communication Journal, vol. 48 (Winter 1983), p. 153. 153Letter from Isabelle Katz Pinzler, acting assistant attor- ney general, U.S. Department of Justice, to Sandra M. Shel- 145Parker, Black Votes Count, pp. 201-02. son, special assistant attorney general, State of Mississippi 146Clark Testimony, Hearing Transcript, p. 707. See also (Sept. 22, 1997), p. 3 (hereafter cited as DOJ Objection Letter). Parker, Black Votes Count, p. 202. 154 Mississippi State Chapter, Operation PUSH v. Main, 14742 U.S.C. §§ 1973gg-1973gg-10 (1995). 674 F. Supp. 1245, 1253 (N.D. Miss. 1987), affd sub nom., 148"Record Numbers Register Under 'Motor Voter' Law," Mississippi State Chapter, Operation PUSH v. Mabus, 932 The Washington Post, Mar. 27, 1996, p. A16. According to F.2d 400 (5th Cir. 1991). the report, 5.7 million registered or updated their registra- 133"Mississippi, Clinton Administration Spar Before High tion while conducting motor vehicle business and 1.3 million Court on Motor Voter Law," The Commercial Appeal, Jan. 7, registered or updated at public-assistance agencies. 1997, p. A5. 97
109 local offices have to register under the state'sits existing, and precleared, state election sys- pre-existing procedures. Mississippi is the onlytem, while, at the same time, administering the state in the nation with separate registrationrequirements for federal elections as imposed procedures for federal and state elections for upon it by the federal government."161 those registering under the NVRA.156 Unita Brenda Wright told the Commission that Blackwell spoke of her 1965 appearance beforeMississippi's refusal to implement a unified reg- the U.S. Commission on Civil Rights: "At thatistration system under the NVRA must be particular time I came to talk about that I couldviewed in the historical context of the prior dual not register to vote, and I am here today withregistration requirement. As noted above, until that same concern about registering to vote."157 1987, Mississippi maintained a dual registration Four Mississippians challenged the legiti-system for municipal and state elections; citizens macy of the two registration systems, allegingwho wished to vote in municipal elections had to that the confusion engendered by separate regis-first register with the circuit clerk of the county tration systems may result in discriminationand then register separately with the municipal against black voters.158 Specifically, they arguedcourt. In 1987, a district court ruled that "Mis- that Mississippi should be required to preclearsissippi's statutory dual registration require- its dual registration system with the Justice De-ment. ...[was] adopted for a racially discrimi- partment.156 Brenda Wright, attorney for the natory purpose."162 plaintiffs in Young v. Fordice, testified at the Ellis Turnage testified that he had examined Commission's hearing that: the rolls of voters registered in Bolivar County under the NVRA. Based on his personal knowl- Congress enacted the NVRA in an effort to makeedge and experience as legal counsel to the Boli- voter registration easier and more convenient. ... We var County Board of Election Commission, Mr. filed the... lawsuit in 1995, because Mississippi has Turnage testified, "I can tell you or represent to chosen to implement the NVRA in a manner that cre- ates burdens and obstacles to voter participation, you that the people who are using motor voter in where none should exist. Mississippi alone, among all my county are overwhelmingly b1ack"163 The other states that have implemented the NVRA, allows Department of Justice, in its preclearance objec- NVRA registrants to vote only in federal elections, tion letter, stated that "it appears likely that a and it requires them to register again separately un- majority of the applicants for voter registration der different procedures to be eligible for state andunder the NVRA in Mississippi are black."164 local elections. This takes Mississippi back to the Shortly after the Commission's hearing, the days of dual registration requirements, the type of requirement that was found to be racially discrimina- Supreme Court handed down its decision in tory in a federal court decision as recently as 1987.160 Young v. Fordice. The District Court for the Southern District of Mississippi had ruled that In its response to the lawsuit, MississippiMississippi's maintenance of dual registration countered that it had no duty to submit its sys- rolls for federal and state elections, in contrast to tem for Justice Department approval because it its previous unitary system, is a creation of the never underwent the kind of change requiringfederal government through the National Voter preclearance under the Voting Rights Act ofRegistration Act.165 Because it was not the 1965. In its answer to the petitioner's complaint, Mississippi stated it was "merely administering 161 Answer at para. 56, Young v. Fordice, Civ. Action No. 3:95CV197 (S.D. Miss. 1995). 162 Mississippi State Chapter Operation PUSH v. Allain, 674 156 Richard Care lli, "High Court Hears Mississippi's Voter F. Supp. 1245, 1252 (N.D. Miss. 1987), aff'd sub nom., Mis- System," The Rocky Mountain News, Jan. 7, 1997, p. 26A. sissippi State Chapter, Operation PUSH v. Mabus, 932 F.2d Until fall 1996, Illinois also did not allow those voters regis- 400 (5th Cir. 1991). tering through motor voter locations to vote in state and local offices. "Voters Not Beating Path to Polls, Say Offi- 163 Turnage Testimony, Hearing Transcript, p. 785. cials," The St. Louis Post-Dispatch, Nov. 1, 1996, p. A2. 164 DOJ Objection Letter, p. 3. DOJ based its conclusion on 157 Blackwell Testimony, Hearing Transcript, p. 683. statistics indicating that a majority of the applications for voter registration in Mississippi have come from public as- 158 Young v. Fordice, Civ. Action No. 3:95CV197 (S.D. Miss. sistance offices and other statistics indicating that partici- 1995). pants in Mississippi's public assistance programs are pre- 158 Id. dominantly black. 160 Wright Testimony, Hearing Transcript, pp. 774-75. 165 See 65 U.S.L.W. 3023. 98 state's creation, the district court ruled it did notwe would be successful in a declaratory judgment require preclearance under section 5)66 The action with the district court. Court reversed the district court's decision and The effect of being unable to decouple would simply held that Mississippi must preclear the dual sys- be in the view of many people ... tocede authority or tem that was put into place in an effort to satisfycontrol of Mississippi registration law to the Con- the NVRA.167 The Court noted the confusion re- gress, and that is a step that many people in the Leg- sulting from the separate registration systems islature are very hesitant to take. And that is a fun- "probably would have led [NVRA registrants] ... damental concern because we think obviously voting to believe that NVRA registration permittedis a core fight and any political unit's authority to them to vote in all elections" and "might wellcontrol the registration of voters is also a core func- mislead if they cannot in fact be used to register tion of state government ...171 for state elections."168 In fact, the Justice De- The Secretary of State's Office reported that partment noted that there appeared to be wide-78 of the 82 circuit clerks in Mississippi indi- spread agreement among election officials incated they wanted the state to pass a motor Mississippi that NVRA voters were significantly voterlaw.172Moreover,Mississippiincurs confused about their inability to vote in state"roughly a half million dollar cost per election and local elections under the separate registra- year. ...for keeping separate books and for put- tion system.166 Luther Alexander testified that the chairmanting forth the efforts required to maintain the voting place in the proper way."173 of the election committee in Mississippi's Senate In September 1997, the Justice Department refused to pass the motor voter bill (allowing fordetermined that Mississippi's separate registra- registration of state, local, and federal electionstion system discriminated against black voters under the NVRA) because: and refused preclearance under section 5 of the it is tied up in court. And historically when something Voting Rights Act.174 Among other things, DOJ has been in court, historically we have not taken itnoted that public assistance clients were given up. ...[I-I]e is saying if we pass the bill, then Missis- the opportunity to vote solely through the NVRA sippi is going to be liable for paying the fees of theforms, which only register voters for federal elec- lawyers that file the suit. And that's his reason, but it tions.176 The majorityof theseclientsare shouldn't ever have had to go to court.'" black.176 In contrast, the drivers' license offices of the Mississippi Department of Public Safety are Mr. Sanders voiced another concern with respectoffered a choice between state forms and NVRA to implementing the NVRA in Mississippi. Heforms; many voters choose the state forms?" noted that once Mississippi allowed NVRA regis-According to statistics reported by the state, it trants to vote in state and local elections, theappears that persons who obtain drivers' li- NVRA would become the benchmark for voting censes and picture identification cards at driv- in Mississippi. He presented a scenario in whichers' license offices in Mississippi are predomi- Congress decided to change the NVRA to provide for same day registration: 171 Sanders Testimony, Hearing Transcript, pp. 803-04. If the individuals in the Mississippi Legislature were 172 See, e.g., Gina Holland, "Miss. Circuit Clerks Are Told of to say ... we want todecouple from the NVRA ... Potholes in Motor Voter Law," The Commercial Appeal, because we just don't like the direction that the Con- Sept. 27,1997. gress has gone ...we'd have to pass legislation and 173 Sanders Testimony, Hearing Transcript, p. 801. submit that decoupling legislation to the attorney 174 DOJ Objection Letter. general for preclearance and I doubt very seriously that we would ever get preclearance, and I doubt that 1" Ibid., p. 3. 176 Ibid., pp. 3-4. 177 Ibid., p. 4. Early in 1995, the drivers' license offices had abandoned using the state's mail-in voter registration forms 166 Id. they had offered prior to implementation of the NVRA and 167 Young v. Fordice, 520 U.S. 273 (1997). instead offered only the NVRA forms. It appears, however, that after voters registered under the NVRA were not al- 169 Id. at 1237. lowed to vote in state elections, the drivers' license offices, 169 DOJ Objection Letter, p. 4. unlike the public assistance offices, resumed distributing 1" Alexander Testimony, Hearing Transcript, p. 708. state forms. 99 nantly white.178 DOJ noted, "The state has ad-voter identification requirements.185 Some black ministered this new dual registration require-Mississippians are reportedly against such a ment in such a way that discriminatory effectsmeasurebecausetheyrememberobstacles on black voters were not just foreseeable but al-erected by the state to keep them from voting in most certain to follow."179 the past. Responding to charges of racism, Gov- The Mississippi Senate passed a bill in Janu-ernor Fordice stated, "Vote fraud is an equal- ary 1998 which provides that those registeredopportunity election stealer. It is certainly not, through the NVRA will be registered for state by any stretch of the imagination, a black issue and local elections as well.180 The House Appor- or a white issue."186 He angered many lawmak- tionment and Elections Committee, voting toers who opposed voter identification by saying, reject amendments by the chairman that would"It took me a while to come to that realization. have required Mississippi voters to present iden-Those who oppose us on this, many of them are tification upon voting, sent the Senate bill to the here because of voter fraud."187 full House.181 In his State of the State Address, The plaintiffs who had opposed the separate Governor Kirk Fordice promised to veto motorregistration system returned to court to request voter legislation that did not require all citizensthat the court impose a remedy similar to the to provide identification at the polls.182 In thelegislation that had been vetoed by the gover- same address, he called the NVRA "an unwar-nor.188 The U.S. District Court for the Southern ranted federal intrusion" into "one of the mostDistrict of Mississippi issued an order in Young open voter registration processes in the country" v. Fordice on October 5, 1998, enjoining the state and said that it opened the door to fraud.183 Gov- of Mississippi from denying the right to vote in ernor Fordice reportedly has also called theany state, county, or municipal election to any NVRA the "welfare-voter."184 voter who is registered and qualified to vote in Governor Fordice fulfilled his promise to vetofederal elections under the NVRA. On April 18, motor voter legislation without provisions for 2000, Mississippi ended its history of resistance identification at the polls. In late February 1998, to the motor voter law when recently elected Governor Fordice vetoed a motor voter bill sentGovernor Ronnie Musgrove approved House bill to him by the Legislature that did not include 763, which adopted the provisions of the NVRA.
178 Ibid. 178 DOJ Objection Letter, p. 5. 188 S.B. 2115, 1998 Leg., 113th Reg. Sess. (Miss. 1998). 181 Reed Branson, "Motor Voter Bill Keeps on Rolling," The Commercial Appeal, Jan. 30, 1998, p. A15. 182 Reed Branson, "Fordice Condemns Motor-Voter Bill, Promising a Veto," The Commercial Appeal, Jan. 15, 1998, p. A8. 188 Reed Branson, "Motor-Voter Supporters Vow Return to 183 Ibid. Court if Veto Stands," The Commercial Appeal, Feb. 26, 1998, p. A13. 184 Branson, "Motor Voter Bill Keeps on Rolling," p. A15. 188 Reed Branson, "Fordice Uses Veto Against Motor-Voter," The Justice Department noted that several proposals aimed The Commercial Appeal, Feb. 25, 1998, p. A6. at mitigating the discriminatory effects of the separate reg- istration systems have been rejected by state officials for 187 Reed Branson, "Lawmakers Demand Apology From Ford- "reasons [that]... have been insubstantial, and in some ice; Incensed at 'Fraud' Remark on Voter ID Plan," The cases have been couched in racially charged terms indicat- Commercial Appeal, Mar. 20, 1998, p. Bl. ing antipathy toward "welfare voters." DOJ Objection Let- 188 Branson, "Motor-Voter Supporters Vow Return to Court ter, p. 5. if Veto Stands," p. A13.
100 CHAPTER 4 Findings and Recommendations
The Commission's hearing in the Mississippi federal legislation should be required to estab- Delta addressed three main topics with respectlish equal employment opportunity policies, in- to racial and ethnic tensions: the Delta's uniquecluding grievance procedures. Businesses should racial history and its impact on the region'sbe required to maintain detailed EEO statistics, economy and prospects for future economic de- including employment in job categories by race, velopment; Mississippi's history of a raciallyand report this information annually to appro- separate public education system and the cur-priate federal entities, e.g., the U.S. Equal Em- rent state of equality of opportunity in higher ployment Opportunity Commission or the U.S. education as well as in the state's elementary Department of Labor. In addition, lending insti- and secondary schools; and voting rights andtutions in nonmetropolitan areas should be re- political representation. This report has summa-quired to report the number of mortgage appli- rized the hearing record and has incorporatedcations originated, granted, and denied by race additional research on each of these major topics. of household head, as is required by lending in- Based on the hearing testimony and additionalstitutions in metropolitan areas under the Home staff research, the Commission has developed the Mortgage Disclosure Act. Finally, the current following fmdings and recommendations. federal prohibition against borrowing money for a down payment to purchase a home should be CHAPTER 1. EQUALITY OF ECONOMIC eliminated. This proposal could result in better OPPORTUNITY quality housing for impoverished Delta residents and lead to asset building for poor residents. Race and the Economy of the Delta Finding: In recent years, the Delta has ex- Finding: Significant racial disparities exist perienced an increase in the number of new jobs, in the socioeconomic conditions of black andresulting in greater employment opportunities white Delta residents, with black residents hav-for some residents. The most significant increase ing markedly higher rates of unemployment andin jobs has occurred as a result of Mississippi's poverty, lower incomes, and more substandardestablishment of dockside gaming in 1991. Addi- housing. These disparities are largely the resulttional jobs have been created in other industries, of the region's legacy of slavery, the sharecrop-including catfish farming and manufacturing. ping system, Jim Crow Laws, and discrimination However, in a region of the country with a his- against blacks in many areas of life, includingtory of significant occupational segregation by employment, lending practices, and housing. Allrace, the Mississippi Gaming Commission has no Delta residents, especially black residents, re-equal employment regulations or reporting re- quire immediate improvement in their economicquirements. In addition, because of insufficient conditions, i.e., increased job opportunities anddata regarding equality of employment opportu- greater access to capital for business develop-nities in other new businesses in the region, it ment and to secure decent, affordable housing,cannot be ascertained whether occupational seg- and health care services. regation is occurring in the new industries, re- Recommendation: New businesses in the sulting in blacks being employed in dispropor- Delta that receive tax incentives under the re-tionate numbers atlower paying jobs,or gion's designation as an empowerment zone or that receive any other financial benefit based on
101 113 whether they are securing employment in all jobAs a result, this inequity has hindered black categories. farmers' access to technical support and finan- Recommendation: Because the Mississippicial assistance. Gaming Commission has no equal employment Recommendation: The USDA should initi- reporting requirements, it is not possible toas- ate or continue efforts to appropriately fund and certain whether black applicants and employeessupport cooperative extension programs on both have an equal opportunity with respect to hiring, historically white and black universities,par- promotions, and conditions of employment. Ac-ticularly for those colleges that primarilyserve cordingly, it is recommended that the industryminority and small farmers. Outreach efforts be required to establish an equal employmentshould also be established and intensified toen- policy, including a grievance procedure. In addi-sure that black farmers have routine access to tion, the Mississippi Gaming Commission should these services. be required to maintain detailed EEO statistics, including employment in job categories and sala- Lending Difficulties, Loan Debt, and ries by race. Discriminatory Treatment at Local FSA Offices Finding: Despite the recent influx of new Finding: African American farmers havere- businesses to the Delta and the introduction ofpeatedly indicated that they face inequitable legalized gaming, the most recent statistics indi-treatment from local lending institutions and cate that the region still leads the nation in most county Farm Service Agency (FSA) offices when indices of poverty, including unemployment andseeking financial assistance. As a result, black substandard housing. Long-term improvementfarmers often experience difficulties in securing in the economic lives of impoverished Delta resi-farm loans in a timely fashion, unnecessary loan dents will require not only traditionalap- debt, and ultimately farm foreclosure. In addi- proaches to eliminate povertysuch as creatingtion, the USDA has documented that there isa new jobs, more job training, granting tax incen-lack of a racially diverse staff in local farm of- tives to corporations, and governmentiprivatefices. These factors only serve to escalate the sector cooperative initiativesbut also the use ofrapid loss of black-owned farms in the Missis- asset-building strategies for the poorsuch as sippi Delta. educational and business savings accounts, in- Recommendation: The USDA should thor- creased homeownership, and greater opportuni-oughly investigate and resolve outstandingcom- ties for self-employment. plaints of discriminatory treatment at local FSA Recommendation: Individual Investmentoffices. Moreover, the Department should also Accounts should be funded with federal moneywork with other governmental entities toexam- allocated to match individual savings for downine lending practices at area banks in ruralar- payments for home purchases, start-up capitaleas to determine, document, and alleviate dis- for small businesses, and postsecondary educa-criminatory lending practices, as well as institu- tion. The accounts should not result in anyre- tional barriers that contribute to lengthy loan duction in welfare, Social Security, pension,or approval methods. The Department should also other transfer payments or tax consequences to seek input from minority and nonminority farm- individual program participants. ers when designing methods to facilitate the lending process. Further, the USDA shouldex- Economic Opportunity, Agriculture, and amine legislative initiatives that contribute to Black Delta Farmers farm foreclosure and prevent farmers fromre- Rural Development Initiatives ducing their farm loan debt. New legislation Finding: Black and small farmers often de-should facilitate continued farm operation and pend on the resources of university land grantownership. County FSA offices should also en- programs and cooperative extension services, tocourage and initiate active participation from improve and develop their farm plans and to ob-African American, female, and other minority tain greater access to farm loans and agricul-and small farmers and staff on local farm boards tural expertise. Historically, white land grantand in FSA offices. Where necessary andappro- universities have receivedgreater resourcespriate, targeted debt relief programs should be than historically black institutions in the South. available to farmers in cases involvingproven discriminatory lending practices. 102 Lack of Enforcement of Civil Rights Laws Finding: There was testimony at the hearing Finding: Though several USDA institutionalto indicate that "tracking" of students within mechanisms exist that can address civil rightsschools, as well as the related policy of dividing issues, African American farmers have had tostudents into different "ability groups," still oc- obtain legal redress to seek enforcement of fed-curs despite testimony to the contrary by repre- eral civil rights laws for discriminatory treat-sentatives of the public school system. ment from the Department. Black farmers often Recommendation: The determination of wait years to receive an acknowledgment fromwhether such policies help or hinder students in the USDA of their complaint. As a result, manythe learning process is beyond the scope of this complaints are unresolved. The farmers' effortsreview. However, at the very least, the State to obtain legal action has only exacerbated theDepartment of Education should determine the decreasing number of black-owned farms, due toextent to which tracking and ability grouping the passage of time and the lack of farm services. are taking place. Moreover, the information Farmers also contend that local FSA offices often should be made known to the public so that par- do not enforce the decisions of their USDA ap-ents and outside experts can lobby for policy peals. changes if they deem such changes to be appro- Recommendation: The USDA should re-priate. solve the backlog of civilrights complaints Finding: An agreement has been signed be- through the most expedient, equitable, and effi- tween the state of Mississippi and the Office for cient mechanisms. Efforts should be made to Civil Rights within the U.S. Department of Edu- investigate those institutional factors that cre- cation to address the problem of overrepresenta- ated the backlog of complaints, and the Depart- tion of minority students in special education ment should eliminate these conditions as soonclasses. Significant statistical disparities have as possible. Civil rights investigation and en-been found in the percentage of African Ameri- forcement staff should also be appropriatelycan students being placed into Mississippi spe- trained to address these complaints. In addition, cial education programs. minority, female, and small farm owners should Recommendation: Appropriate monitoring be encouraged to become members of local farm and evaluation must take place to ensure that boards, which often review area farmers' com-the provisions of the agreement are being fol- plaints of discrimination. lowed, with adequate avenues available for par- ticipation and input from teachers, parents, and CHAPTER 2. RACE AND THE PUBLIC EDUCATION other concerned parties. SYSTEM IN MISSISSIPPI Finding: There was testimony at the hearing to suggest that placements into the alternative Elementary and Secondary Education school programs treated children unfairly. Par- Finding: When school districts in Mississippients also questioned the alternative school pro- are evaluated using a performance-based ac-grams. Testimony suggested that alternative creditation system, nearly half of the lowestschools were being used as "dumping grounds" ranking districts are located in the Delta and itsfor black male middle school students and that periphery. In 1998, in an effort to bring aboutthe school system was not concentrating on mak- greater equity in school funding, the State Legis-ing them into high-quality programs. lature passed the Mississippi Adequate Educa- Recommendation: Teachers should receive tion Program. This legislation, which will con-competent training in classroom management tinue to be phased in over a six-year period, will andconflictresolution.Alternativeschools target an additional $130 million annually toshould be a last resort in removing disruptive education needs and will provide an increase ofstudents from the regular school setting and not at least 8 percent for education services in everyunless and until fair and nondiscriminatory poli- district throughout the state. cies and procedures are followed prior to suspen- Recommendation: The impact of this legis-sions and expulsions. These students must not lation should be evaluated to ensure that thesimply be separatedthey must also be taught objective of increased funding equity is beingbasic skills that are crucial even for entry-level met. jobs. The state must design curricula, train
103 teachers and staff, and fully fund alternativeRecommendations: programs toward that end. Teacher salaries. In 1997, the state's average Finding: The State Legislature should scru- teacher salary was over $5,000 less than the tinize the current system of electing district Southeastern average and almost $11,000 school superintendents rather than having indi- less than the national average.2 When the viduals appointed to the position. Therewas tes- Public Education Forum of Mississippi con- timony at the hearing to suggest that electing vened a task force in 1998 to examine factors people to these positions might unnecessarily contributing to public school educators leav- limit the pool of talent from which the official is ing the profession, the highest ranking factor selected. It is very difficult to bring in "new was "inadequate salary."3 In 1997, the State blood" when the person must already reside in Legislature did approve a three-year initia- the immediate districtwhich is the case if the tive to raise teacher salaries 10 percentyet position remains an elected one. There was tes- even these increases fail to make the state timony to suggest that while the practice of average competitive with those in other keeping the position an elected one is waning states.4 Testimony at the hearing strongly throughout the country, nearly half of Missis- suggests that an increase in teacher salary is sippi's 149 school district superintendentsor 63 a crucial component of any plan to reduce of themremain elected. teacher shortages. Recommendation: While there has been re- Teacher retirement. It is important for the sistance to alter the status quo, state legislators state to present options that would encour- should undertake a closer examination of the age quality teachers and administrators to issue to determine whether students could be return to the Mississippi public schools fol- more efficiently and effectively served if superin- lowing retirement. (Currently, many retirees tendents of schools were apfiointed to their posi- will start teaching at a private school,or will tions. cross state lines to start a second teaching Finding: Volunteer efforts such as "Net Day" career in another state while drawing full re- have encouraged local businesses to donate time tirement benefits from the state of Missis- and resources in helping to wire Mississippi sippi.)5 Nineteen other states offer such pro- schools for computer use.1 grams, and they have been able to do so in a Recommendation: Because it is crucial for manner that immediately increases the sup- all students to be able to travel the new "infor- ply of quality teachers and administrators, mation superhighway," the State Legislature yet has not negatively ,affected the actuarial should work to assist the schools in becoming soundness of the states' retirement systems.6 "wired" for computers, for the Internet, and for Mississippi should consider implementing a the future. similar plan as part of an overall strategy to Finding: Teacher shortages exist throughout address the teacher shortage. Mississippi. Many of the state's poorest school Pupil-to-teacher ratio. There was testimony districts, with the highest concentrations of stu- at the hearing that a high pupil-to-teacher dents of color, are the ones grappling with the ratio, especially when there is a wide diver- most severe teacher shortages. Especially trou- gence of talent in the classroom, can lead to bling has been the precipitous decline in the discipline problems and other stress factors number of teachers of color, as well as the num- that can contribute to a teacher's decision to ber applyingforteachercertification.The leave the classroom.7 Testimony indicated teacher shortage was one of the most serious and that reading levels within a single class of 30 troubling issues that arose during the Missis- sippi Delta hearing. Following are several rec- 2 Public Education Forum of Mississippi, Quality Teachers, ommendations that the state should take into Every Child's Educational Birthright, Jackson, MS, Novem- consideration as it grapples with the matter: ber 1998, p. 10 (hereafter cited as Quality Teachers). 3 Ibid., p. 9. 4 Ibid., p. 10. 6 Hearing Transcript, p. 105. 1 U.S. Commission on Civil Rights, hearing, Greenville, MS, Mar. 6-8, 1997, transcript, pp. 193, 195 (hereafter cited as 6 Quality Teachers, p. 11. Hearing Transcript). 7 Hearing Transcript, pp. 102-03, 106. 104 students could range from fifth grade to col-, support system that addresses the develop- lege readiness.8 The federal government is mental needs of beginning teachers: it has taking this issue seriously, including imple- been estimated that 25 percent of beginning menting the 1998 Class Size Reduction Ini- teachers do not teach more than two years, tiative.8Mississippi's allocation from the and that nearly 40 percent leave the profes- $1.2 billion targeted nationwide, approxi- sion within their first five years.14 The Mis- mately $19 million, will enable the state to sissippi Critical Teacher Shortage Act au- employ an estimated 494 new teachers.") thorized the Mississippi Teacher Center to However, there must be adequate state and implement an induction program for begin- local support, including financial support, if ning teachers.18 This critical program aims to the goal of a lower pupil-to-teacher ratio is promote the "personal, social, physical, psy- going to be met. chological, emotional and professional wel- Funding for aspiring teachers. In recent fare of beginning teachers."18 It is very im- years, the State Legislature has substan- portant that teachers be surveyed periodi- tiallyincreased funding of scholarships, cally to see if the new program eases the grants, and loans for aspiring and practicing transition into the profession. teachers. These programs include the Criti- Teacher certification process. It is crucial cal Needs Teacher Loan/Scholarship Pro- that the teacher certification process in the gram, which funds four years of college (tui- state not act to overly restrict a person's abil- tion, housing, meals, books, and fees) for ity to enter the professionespecially those students who commit to teaching in a critical who wish to switch to teaching from another need area of the state for three years; the profession.17 While the state must ensure William Winter Teacher Scholar Loan Pro- that preparation and competency standards gram, which provides loans to individuals in- remain high for individuals who wish to be terested in becoming teachers; and the Uni- admitted into the ranks of teaching, there versity Assisted Teacher Recruitment and must also be flexibility so that good potential Retention Grant, which provides tuition, teachers are not turned away due to unrea- fees, and books for individuals teaching in a sonable licensing rules and requirements. As critical shortage area of Mississippi. Testi- one Mississippi educator said, "Redesign the mony at the hearing suggested that such requirements for teacher certification in a programs have been urgently needed." It is way that matches requirements with the hoped the continued popularity and success skills required for success in today's class- of these programs will lead to an increase in room."18 The current teacher shortage adds a funding levels, as well as an expansion of sense of urgency to this recommendation. similar loan and grant opportunities. "Master teacher" program. There was testi- Higher Education in Mississippi mony at the hearing on the importance of U.S.V.Fordice implementing a "master teacher" program Finding: The racial identifiability of Missis- that would provide mentoring to new teach-sippi's eight public universities persists: in the ers.12 Each new teacher would be assignedfall of 1996, the on-campus undergraduate en- an experienced "master teacher" for onerollment ranged between 75 percent and 85 per- year, who could nurture the new teacher'scent white at each of the state's historically growth and advancement as an educationalwhite institutions, and averaged nearly 98 per- leader in the school.13 National statisticscent black at each of the state's historically black strongly illustrate the need for providing ainstitutions.
8 Ibid., p. 114. 9 Quality Teachers, p. 12. 14 Quality Teachers, p. 14. 111 Ibid. 15 Ibid. 11 Hearing Transcript, pp. 124, 196. 16 Ibid. 12 Ibid., p. 142. 17 See Hearing Transcript, p. 127. 13 Ibid. 18 Ibid.
105
11 7 Even though the courts have directed the sippiAdequateEducationProgramwhich state to spend millions of dollars to improve itsstates that every school district must receive historically black public universities (which will"sufficient" funds to provide an adequate educa- lead to the creation of new graduate programs, tionwill lead to improvements enabling stu- new scholarship programs to attract "other-race" dents from all socioeconomic backgrounds to ef- students,etc.),it might take timepossiblyfectively compete for entrance to higher educa- yearsfor these schools to bolster their aca-tion. However, if that program fails to achieve demic reputations to the extent required to at-thedesired outcome, theStateLegislature tract substantially greater percentages of whiteshould institute other measures to improve the students. K-12 system. Recommendation: In the interim, addi- Also, the summer remedial program is still in tional means should be used to bring about in- its infancy, and perhaps it should be reviewed to creased participation in higher education as wellmake sure that it does not unnecessarily stigma- as increased desegregation. This might includetize participating students. (Of course, if any creating additional university "satellite centers," stigmatization is found, the solution would be which can be opened in different parts of the minor adjustments to, rather than the wholesale state in order to enable residents to attend col-elimination of, the important summer program.) lege while working full time. Well-planned pro- Finally, there is evidence that the numbers of grams that respond to the particular needs andyoung people opting to participate in the sum- interests of local populations can assist in deseg-mer remedial program are small. Hearing testi- regation efforts. Specifically, programs that aremony suggested that some students will not par- not duplicated at proximate institutions, whichticipate in the summer program because doing are targeted to local demands, and which areso requires forgoing a summer job. Perhaps the offered through alternative delivery systemsstate could investigate the possibility of provid- (such as off-campus, evening, and weekend pro- ing more scholarship resources to the summer grams) have had success in attracting white stu-program, especially to needy students for whom dents to historically black institutions. participation in that one 10-week program might Finding: Since the state adopted new ad-mean the difference between attending and not missions standards by equalizing admissionsattending college at all. requirements at its eight four-year institutions, a smaller proportion of black high school gradu- The Appeal of U.S. v. Fordice ates have qualified for unconditional admission. Finding: On January 20, 1998, the U.S. Su- The first year after the new standards were in-preme Court, without comment, declined to re- troduced, black representation of first-time, full-view the latest Fordice opinion of the Fifth Cir- time freshmen fell from 43 percent to 38 percentcuit Court of Appeals. It was argued in the failed across the state's eight public four-year institu-appeal that the state is continuing to segregate tions. And while the court-approved summerstudents and to discriminate by discouraging remedial programs might play a role in prepar- blacks from attending college. ing young people for the rigors of higher educa- Recommendation: Whatever one thinks of tion, it is highly unlikely that such programs willthe Fordice case or the judicial process through be able to wipe away the educational deficitswhich it traveled, it appears that the court sys- that a young person can build up while attend-tem is mostly finished with the matter, except ing years of substandard public schools. for ongoing status conferences being conducted Recommendation: There was a consensusby the district court as it attempts to carry out at the hearing that improvements in the state's the orders of the reviewing courts. This might be K-12 system are necessary in order to give allan indication to both the State Legislature and studentsblack and whitea chance to competethe College Board that if any other changes, ma- for a college or university slot under the now-jor or minor, are going to come about in this uniform entrance criteria. However, there arematter, then they will most likely emanate from real questions in the Mississippi Delta aboutone of these two bodies. Perhaps establishing a whether public schools currently offer curricu-way for representatives of these two groups to lum of sufficient quality to meet the higherwork together, with input from concerned citi- standards. It is hoped the newly passed Missis-zens and education experts from throughout the 106
118 state, could result in suggestions and compro-programs that help these students make the mise solutions that have not been achieved here-transition to four-year institutions. tofore through the long and combative litigation process. Race Relations and Desegregation Finding: While there are many people, black Hopwood or Fordice: Which Controls? and white, who are working toward desegrega- Finding: It will be helpful when the law be- tion and integration of the state public univer- comes more settled in the area of higher educa-sity system, testimony suggested that there are tion desegregation. There is still confusion overnonetheless people at both historically white and whenand in what formsaffirmative action ishistorically black institutions of higher educa- a permissible remedy in higher education deseg-tion who oppose meaningful integration. regation cases. This matter is especially impor- Finding: There is a perception among black tant given that the Hopwood v.the State ofleaders in the education arena that oftentimes in Texas19 court appeared to disregard certain prin- desegregation cases the burden of integration ciples put forth by the U.S. Supreme Court in Re- falls upon the historically black institutions. In- gents of the University of California v. Bakke.20 deed, a longstanding paradox of the desegrega- Until clarification is provided, there will continue tion movement in higher education is the possi- to be "mixed signals" and disagreements as tobility ,that historically black colleges and univer- the state of the law. sitiesthe very institutions that provided oppor- tunities for blacks during times of segregation Community Colleges might be sacrificed in the name of desegregation. Finding: Currently, the focus of the state Recommendation: As decisions are made by community college system is on "transition" pro- the courts and the College Board in this ongoing grams, which entail responding to the needs ofmatter, it is very important that neither the industry as people are "re-tooled" for the higherpeople associated with historically black institu- technology jobs of a changing workplace. The tions nor the people associated with historically programs concentrate on skills acquisition inwhite institutions feel that they are being made order to increase a person's immediate market- to accept more than their fair share of the bur- ability and employability. It is projected that 80dens involved (i.e., school closings, etc.) in bring- percent of all new jobs will require education ing about desegregation and integration. beyond the high school level, so community col- Finding: Important social interaction be- leges in Mississippi will continue to play a usefultween blacks and whites is dlearly taking place role in imparting needed skills and knowledge to at greater levels in the Mississippi Delta, espe- people seeking those jobs. Moreover, communitycially in business and civic activities. However, colleges help increase access to and desegrega-there were some indications put forth at the tion within the state's higher education systemhearing to suggest that race relations continue because they are more flexible, more affordable, to be tenuous. This also applies to the state's in- and oftentimes more "user-friendly" in helping stitutions of higher education. nontraditional studentsincluding older stu- Recommendation: All the state's institu- dents and/or students whose families and cul- tions of higher education must provide a campus tural values typically do not send them to col-and classroom environment where students of legeto access higher education. all races feel welcome and comfortable. Highly Recommendation: The state must not for-commendable are the actions taken by some of get that a small percentage of community college the higher education institutions, including the studentsusually less than 5 percent eachUniversity of Mississippi, to review certain Con- yearuse the colleges as an "academic bridge" tofederate symbolism that some members of the transfer to a four-year institution. This is auniversity community find offensive. It is impor- small but vital role that should not be overlooked tant to keep the dialogue and lines of communi- when the state is funding scholarship and othercation open between different groups and com- munities as relationships continue to build and 19 999 F. Supp. at 872; 1998 U.S. Dist. LEXIS 5339, Mar. 20, strengthen over time. 1998. 29 438 U.S. 265 (1978).
107
119 CHAPTER 3. VOTING RIGHTS AND POLITICAL or only one black supervisor until the late 1980s, REPRESENTATION IN THE MISSISSIPPI DELTA began to elect black representatives. Similar in- The Census Undercount creases occurred with respect to black represen- Finding: The Census Bureau has deter-tation in municipal elected offices. Whereas in mined that the 1990 census resulted in a na- 1965 most cities and towns in Mississippi elected tional undercount of 2.1 percent, or approxi-city council and board of aldermen members mately 5.3 million persons out of a total popula- through at-large elections, by 1988 most had tion of approximately 255 million. The under-converted to ward or single-member district count was greater for members of racial andplans. As a result, the number of black elected ethnic minorities. Hispanics were undercounted officials on municipal governing bodies rose sub- by 5.2 percent, African Americans by 4.8 per-stantially throughout the 1980s, nearly doubling cent, and Asian and Pacific Islanders by 3.1 per-between 1984 and 1993. By the mid-1990s Mis- cent. The U.S. Supreme Court ruled in Depart- sissippi had more black elected officials than any ment of Commerce v. United States, 525 U.S. 316other state. (1999), that the Census Act prohibits the use of Litigation filed in 1991 resulted in reappor- statistical sampling to determine population fortionment of the State Legislature after which the congressional apportionment purposes. The deci- number of black representatives doubled. Before sion is likely to ensure the repeated undercount- redistricting the State Legislature was 11 per- ing of poor people of color in the Mississippicent black in a state with a black voting-age Delta. This undercounting will have an adversepopulation of 31.6 percent. By the time of the impact on people of color communities and their Commission's hearing in March 1997, the State participation in the political process. Legislature was 25.9 percent black, with 10 Recommendation: The Commerce Depart-black senators, up from two, and 35 black repre- ment, and specifically its Census Bureau, mustsentatives, up from 21. assess its efforts to target historically under- counted communities for the 2000 decennial cen-Current Political Representation in Mississippi sus in order to verify whether these efforts pro- Finding: Some reports indicate that with the duced a more accurate count of these communi- dramatic increase in black representation in the ties compared with previous census counts. TheMississippi Legislature, there has been racial Census Act should be amended to remedy thepolarization among the members of the Legisla- persistent and prevalent practice of undercount-ture. There also appears to be racial polarization ing identifiable groups of individuals during the among the electorate. While there is some evi- decennial census count by recognizing the le- dence that white crossover voting for black can- gitimacy and usefulness of statistical samplingdidates exists, racial polarization of voters is for apportionment as well as nonapportionmentmore common. Blacks tend to vote for black can- purposes. didates and whites for white candidates in most black versus white elections. Thus, the increase History of Voting Rights in Mississippi in the number of black elected officials in Missis- Finding: Minority political participation insippi can be attributed primarily to the creation Mississippi has increased substantially sinceof majority-black districts. passage of the Voting Rights Act. Voter registra- tion rates for African Americans changed dra-Barriers to Black Political Participation matically following passage of the Voting Rights Finding: Black voter registration and voting Act, with the black registration rate in Missis-still lag behind that of white citizens. While sippi rising to 59.8 percent of eligible voters bysome witnesses contended that there are no bar- 1967. Just three years before, only 6.7 percent ofriers to black political participation in Missis- eligible blacks were registered to vote in Missis- sippi, others testified about the correlation be- sippi. tween electoral participation, and poverty and The number of black elected officials in Mis- education.Census figures demonstrate that sissippi began to rise gradually throughout thevoter participation increases dramatically with 1980s and into the 1990s. Many majority-blackfamily income. Census figures also demonstrate counties in the Mississippi Delta, which had noa strong correlation between educational at-
108 tainment and voter participation. In Mississippi, and 1990. While the percentage of black Missis- there are significant discrepancies in both pov:sippians living below the poverty line has im- erty levels and educational attainment betweenproved from 1970, it remained nearly the same blacks and whites. between 1980 and 1990. In the Mississippi Recommendation: Economic developmentDelta, 53 percent of its black residents live in and educational opportunities for black citizenspoverty, compared with 13.1 percent for the na- in Mississippi need to be strengthened and em-tion as a whole. phasized. Finding: There have been steps toward eco- Recommendation: Potential voters who arenomic progress. When she was elected the first unregistered should be allowed to register onblack mayor in Mayersville, Unita Blackwell election days at the polling site for the next elec- oversaw the construction of four sets of public tion cycle. housing, which was the first time that federal Recommendation: Efforts to increase vot-housing had been built in Issaquena County. ing turnout should be encouraged. Problems of water shortages and clean water Finding: Another issue affecting black voter access in the Delta have been addressed through registration is the disenfranchisement of Africanincreasinglyeffectivefederalrepresentation. American voters because of felony convictions.Further, the Delta also is the location of an em- As more young blacks are being put through thepowerment zone that residents hope will spawn criminal justice system, they are losing the right greater economic development. to vote. A recent study by the National Sentenc- Finding: There have also been noneconomic ing Project reported that about 4.2 million vot-benefits to black political empowerment. Racial ing-age Americans cannot vote because they areviolence against blacks in Mississippi, while not in prison, on parole, or have permanently losteliminated, has dramatically declined since the the right to vote because of their convictions. Ofincrease in black voter registration after 1965. that number, about 1.4 million are black males.Although it continues, racial rhetoric in political As a result, one in seven otherwise eligible black campaigns has been curtailed. The Mississippi males cannot vote. In Mississippi, one who hasLegislature appears more considerate toward been convicted of certain crimes as listed in theblack members and to black Mississippians since state's constitution may not vote even if he has the increase in black political representation. already served his term. Recommendation: Electedofficials must Recommendation: Congress should passplace a greater emphasis on remedying the stark legislation to allow former offenders who areeconomic inequalities between blacks and whites otherwise qualified the right to vote in federalin Mississippi. elections once they have served their sentence and have been released from prison. Similarly, National Voter Registration Act the Mississippi Legislature should amend the Finding: Mississippi had one of the lowest state constitution to allow otherwise qualifiedpercentages of National Voter Registration Act former offenders the right to vote in state and(NVRA) transactions relative to its voting-age local elections. population from January 1995 through June 1996, the first 18 months of the NVRA's opera- Impact of Black Political Power in Mississippi tion, than any other state. An estimated 10,000 Finding: Although African Americans incitizens registered under the law in Mississippi Mississippi have achieved substantial electoralas of January 1997. success, the ability to translate that success into Finding: Prior to the implementation of the economic gain and power has been less certain.motor voter law, Mississippi had a unified sys- According to Children's Defense Fund figures,tem for voter registration in which a person was more than half the state's black children lived eligible to vote in any electionwhether federal, below the poverty line in 1990. Black per capita state, or localupon registering to vote. The uni- income was less than half that of whites in Mis-fied system included voter registration by mail, sissippi in 1990; the gap in per capita income,availability of state voter registration forms at while improving somewhat between 1970 anddrivers' license offices, and fairly uniform local 1980, remained nearly constant between 1980voter registration procedures. Mississippi had
109
2 1 implemented the unified system following fed- plan to the Department of Justice. In September eral court decisions that the previous dual regis- 1997, the Justice Department determined that tration requirement violated section 2 of the Vot- Mississippi's separate registration system dis- ing Rights Act because it had resulted in a "de-criminated against black voters and refused pre- nial or abridgment of the right of black citizensclearance under section 5 of the Voting Rights in Mississippi to vote and participate in the elec- Act. toral process." Finding: The Mississippi Legislature sent a Finding: Mississippi is the only state in thebill to the governor which provided that those nation with separate registration procedures forregistered through the NVRA would be regis- federal and state elections for those registeringtered for state and local elections as well. In his under the NVRA. Those voters registering at State of the State Address, Governor Kirk Ford- motor vehicle or other locations pursuant to the ice promised to veto motor voter legislation that NVRA are allowed to vote only for federal of- did not require all citizens to provide identifica- fices. Those who wish to vote for state and localtion at the polls. In late February 1998, Gover- offices have to register additionally under the nor Fordice vetoed the NVRA bill sent to him by state's pre-existing procedures. Mississippi con-the Legislature that did not include voter identi- tinues to maintain the unified system for those fication requirements. voters registering pursuant to the state's pre- Finding: On April 18, 2000, Mississippi ended existing procedures. its history of resistance to the motor voter law Finding: Mississippi did not preclear its im- when recently elected Governor Ronnie Musgrove plementation of the NVRA with the Departmentapproved House bill 763, which adopted the pro- of Justice pursuant to section 5 of the Voting visions of the NVRA. Rights Act. In Young v. Fordice, the Supreme Recommendation: Mississippi should fully Court held that Mississippi must preclear its im-implement and monitor a unified system of reg- plementation of the NVRA with the Departmentistration for federal, state, and local elections of Justice. Accordingly, Mississippi submitted its under the NVRA before the next election. Appendix A
Mississippi Delta County Supervisors
Number of black supervisors % black County in 1990 1984 1985 1986 1987 1988 1989 1990 1991 1993
Bolivar 63 1 1 1 1 1 1 1 1 1
Coahoma 65 1 1 1 1 0 1 1 1 1 Holmes 76 3 3 3 3 2 3 3 3 3
Humphreys 68 1 2 3 3 3 1 3 3 3
Issaquena 56 1 1 1 1 1 2 2 2 2
Leflore 61 1 1 1 3 0 1 1 1 3
Quitman 59 0 0 1 1 1 2 2 2 2
Sharkey 66 0 0 0 0 0 2 1 1 2
Sunflower 64 0 0 0 0 1 1 1 1 2 Tallahatchie 58 0 0 0 0 0 0 0 0 0
Tunica 75 1 1 1 1 1 2 2 2 2
Washington 58 0 0 0 0 0 1 1 1 2
Yazoo 53 1 1 1 2 1 2 2 2 2
SOURCE: Joint Center for Political and Economic Studies, Black Elected Officials: A National Roster, 1984-1993.
111 Appendix B
Black Elected Officials on Municipal Governing Bodies in Mississippi
1974 61 1979 143 1984 163 1985 162 1986 200 1987 206 1988 222 1989 282 1990 294 1991 303 1993 302
SOURCE: Frank Parker, Black Votes Count (Chapel Hill, NC: University of North Carolina Press, 1990); Joint Center for Political and Economic Studies, Black Elected Officials: A National Roster, 1984-1993. U.S. COMMISSION ON CIVIL RIGHTS Washington, DC 20425
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