President Bush has personally intervened in a case before the U.S. Supreme Court involving desegregation of state colleges and universities, ordering the Solicitor General to support increased state funding for historically black public institutions.
The White House spokesman, Marlin Fitzwater, last week confirmed reports that the President had asked for an about-face in his Administration’s position on a central issue in the cases, U.S.A. Mabus and Ayers v. Mabus (Case Nos. 901205 and 90-6588). The consolidated cases, which address how far the state of Mississippi must go to desegregate its system of higher education, are scheduled to be argued before the Supreme Court next month.
President Bush “did indeed raise this with the Solicitor General and express his concerns and the feeling that our position should be in support of the [increased] state aid” for Mississippi’s historically black colleges, Mr. Fitzwater said.
Mr. Bush apparently acted after supporters of such colleges met with him on Sept. 9 to discuss the issue.
Both the federal government and a group of private black plaintiffs that sued state officials in 1975 have appealed a decision by the U.S. Court of Appeals for the Fifth Circuit that said Mississippi had satisfied its constitutional obligation to desegregate its higher-education system by ending past discriminatory practices and implementing race-neutral policies.
The black plaintiffs have always called for increased funding for the three predominantly black state institutions in Mississippi as a remedy for past discrimination.
But in the federal government’s initial court papers filed in the case in July, Solicitor General Kenneth W. Starr argued that the state was not constitutionally required to spend more money to improve its historically black institutions to the level of its traditionally white colleges.
“The idea is to end duplication, not to perfect it by ensuring that separate schools are in fact equal,” the government’s July brief said.
High-Level Lobbying
Leaders of historically black colleges and related organizations subsequently met with Administration officials, including the President and the Solicitor General, to lobby for a change in position.
The Justice Department’s position against closing funding disparities would undermine financial support for all historically black institutions, the leaders argued.
James E. Cheek, the former president of Howard University in Washington and the chairman of President Bush’s Board of Advisers on Historically Black Colleges and Universities, wrote letters contending that such schools would be “doomed” if the High Court were to agree with Mr. Starr’s argument.
In new papers filed with the Court on Oct. 10, Mr. Starr took the highly unusual step of repudiating the government’s earlier position.
Mississippi’s historical discrimination against its black colleges “manifested itself in a deprivation of equitable and fair funding” to those institutions, Mr. Starr wrote. “The time has now come to eliminate those disparities and thereby unfetter the choice of persons who can hereafter choose freely among the state’s institutions of higher learning.”
In a footnote, Mr. Starr wrote that “suggestions to the contrary in our opening brief no longer reflect the position of the United States.”
The Mississippi case is to be argued before the Court on Nov. 13.
Kansas City Fee Case
In another matter last week, the Supreme Court rejected an appeal by Missouri officials who were seeking to reduce the amount of fees they must pay the lawyers who prevailed in a desegregation lawsuit involving the Kansas City school system.
The Court let stand a decision by the U.S. Court of Appeals for the Eighth Circuit that affirmed a district judge’s ruling that post-judgment interest on attorneys’ fees awarded to the black plaintiffs’ side in the case should begin from the date the district court first decided the plaintiffs were entitled to the fees, rather than from a later date when the fees were quantified.
The appeal of that issue in the long-running Kansas City desegregation case was Missouri v. Jenkins (No. 91-360).
The High Court still has before it an appeal of another portion of Missouri v. Jenkins. In this appeal (No. 91-324), the state is asking whether it should be forced to pay for asbestos removal in schools as part of the desegregation remedy. In urging the Court to review the order, state officials say their appeal would give the Justices “a renewed opportunity to consider the scope of the ongoing school-desegregation remedies.”
The Court has so far declined to review most aspects of the far-reaching desegregation orders in the Kansas City case. (See Education Week, May 3, 1989.)
