As mentioned in my last post, in 2003, after I had been in Louisiana for one year, I wrote a short academic paper on the Higher Education Desegregation Agreement of 1994. Some of what is here I would not write today after years of perspective in our institutions working with our students. I still think that the Agreement was flawed and didn’t meet its objectives, but it was in large part because the state did the bare minimum, and devoted the bare minimum of resources, that it had to in order to comply. The Stelly Plan had just been passed the year before I wrote this, which helped to reverse at least the problem of resources–but the impacts weren’t really felt yet by 2003. (Does anyone in higher ed remember the one year we were all fully funded, at least to the levels our campus heads requested? And didn’t have a mid-year budget cut? Yes, there was one.) However, the last section of my paper holds relevance today because this was the state that Jindal found our higher education system in when he first became head of the UL System and then later was elected governor.
And then, of course, there was Katrina. I will get into that next. – ulyankee
Truce or Stalemate—Are Monetary Settlement Awards Enough to Desegregate Higher Education?
Louisiana’s Experience under the 1994 Desegregation Settlement Agreement
Within the last two years, two longstanding higher education desegregation cases, Geier v. Sundquist and Ayers v. Fordice, have finally resulted in settlements between the parties. One would hope that these agreements would not only result in better facilities and fiscal support for the historically black institutions in these states, which, per Brown v. Board of Education, by itself would still not comply with the Equal Protection Clause of the Fourteenth Amendment, since it would merely make separate and unequal systems separate and equal (Arceneaux, 1995, par.7-9); but that they would also lead to increasingly desegregated higher education systems, as the original suits had intended.
However, are these agreements enough? Will the concessions that the plaintiffs made in these cases in order to settle with the states—primarily, allowing the states to leave their currently segregated schools and systems intact without further mergers or closures—undermine the ability of the agreements to lead these states’ higher education systems into true compliance with the Equal Protection Clause in the spirit of Brown? While parties certainly have the right to settle cases prior to a final ruling, will financial settlements alone ensure that the states involved will not continue to operate systems that violate the Constitution?
While there may be no reliable predictor of the eventual final outcomes of these two cases, nor can all the questions posed above be definitively answered, a third major desegregation case, United States v. Louisiana, may provide some clues to some potential shortcomings in the agreements in their ability to bring about desegregation, assuming that is still indeed the “point” of these cases.
The Compromises Inherent in Louisiana’s Desegregation Settlement Agreement
United States v. Louisiana first went to litigation in 1974; after a failed Consent Decree, numerous appeals (including an appeal to the U.S. Supreme Court, which was denied), and a remand by the 5th Circuit Court to the district court to resolve disputed facts and to determine if the state’s higher education system violated United States v. Fordice, in late 1994 Governor Edwin Edwards brokered a Settlement Agreement with the U.S. Justice Department that was accepted by the U.S. District Court of the Eastern District of Louisiana (Arseneaux, 1995; “Court backs college plan,” 1994, Nov.15, Kaplin & Lee, 1995, p. 808-9). Under the agreement, the state was required to devote funds to develop the facilities and programs of its historically black institutions so that they could attract more white students, actively recruit “other race” applicants to state institutions, discontinue the development of identical programs, and instead develop distinct, high-demand degree programs to attract diverse student populations at institutions throughout the state, establish more community colleges (specifically one in Baton Rouge, site of both historically black Southern University and historically white Louisiana State University, in order to prepare underprepared students for entrance to any institution in Louisiana, including LSU), and finally to discontinue its statewide open admissions policy and institute selective admission standards at all four-year degree granting institutions, while reserving 15% of each entering class for admission “exceptions” in order to diversify each institution by allowing some less qualified students to enter (Arseneaux, 1995).
In exchange for these terms, which had also been included in the 1993 ruling by the District Court before the 5th Circuit Court appeal, the state avoided some of the more unpalatable remedies that had been named in previous rulings, and was instead allowed to:
- Keep its multi-board system. The four-board system, one of the most obvious vestiges of prior de jure segregation, was a key part of the original segregated system in Louisiana, in which whites were educated by the flagship LSU System as well as by all but one of the regional universities in the University of Louisiana (formerly State Colleges and Universities) system, and, according to the pre-1974 state constitution, Grambling University and the five-institution Southern University System were reserved specifically for African-American students. While the 1974 constitution eliminated any reference to race with regard to the governance or admissions policies of these systems and their institutions, they continued to be targeted by United States v. Louisiana since the systems, founded in the late 1800s and further segregated in reaction to Brown, created de facto segregation as a direct result of earlier de jure segregation (Arseneaux, 1995). At first, Louisiana “had not seriously disputed the fact that the [. . .] higher education system [. . .] continues to perpetuate the segregation which the state’s laws once mandated,” then, beginning in 1992, maintained that it could comply with Title VI and the Equal Protection Clause without dismantling the multi-board system (U.S. Dist. LEXIS 19854 (D.E.L.A. 1992)); the Agreement mandated more fiscal parity among the systems in order to help achieve this goal (Arseneaux, 1995; “Court backs college plan.” 1974, Nov. 15). While maintaining four boards is clearly expensive and cumbersome, a “superboard” as originally demanded by the federal government and the District Court in earlier incarnations of the case has been consistently rejected by proponents of both historically white and historically black institutions, and continues to be one of Louisiana’s political “sacred cows,” as current Gov. Mike Foster learned when he attempted to create one himself (“A less super ‘superboard’,” 1996, Sept. 6). However, despite the District Court allowing them to remain and the strong political pressure to maintain them, there is scant evidence that the four boards would meet the Fordice “sound educational policy” standard, even when measured in a way that supports the existence of historically black institutions as articulated by Supreme Court Justice Clarence Thomas (Kaplin & Lee, p. 810-11). In its 1993 remand, the 5th Circuit Court had left the door open for a possible court-mandated merger, pending the District Court’s reexamining the four-board system “under the appropriate legal principles,” i.e., Fordice (9 F.3d 1159 (5th Cir. 1993)); the Settlement Agreement allowed Louisiana to avoid this entirely.
- Keep all its campuses open, without closures or mergers. The original United States v. Louisiana suit charged that separate university campuses with nearly identical programs in four geographically proximate areas of the state—Southern (SUBR) and LSU in Baton Rouge, Louisiana Tech and Grambling in the Ruston area, Southern and LSU campuses in Shreveport, and University of New Orleans (UNO) and Southern University at New Orleans (SUNO)—were illegally segregated (Arseneaux, 1995). Had final damages in the case been awarded, it was still possible that LSU’s and Southern’s law schools in Baton Rouge, as well as UNO and SUNO, might have been forced to merge; as noted above, although the 5th Circuit Court had reversed the District Court’s judgment and remanded the case for trial, this was due to an “improperly granted” summary judgment based upon still disputed facts, not merely an inappropriate ruling of damages. The court further stated:
We read Fordice to require that each suspect state policy or practice be analyzed to determine whether it is traceable to the prior de jure system, whether it continues to foster segregation, whether it lacks sound educational justification, and whether its elimination is practicable. This is the State’s burden to show that it has dismantled its prior dual system at the liability stage of litigation. (9 F.3d 1159 (5th Cir. 1993)).
The Settlement Agreement, which required geographically proximate schools to cooperatively develop different degree programs in lieu of closures or mergers, was a major victory for proponents of both the historically white and historically black institutions (“Court backs college plan,” 1994, Nov. 15; Arseneaux, 1995)). There are undeniably strong arguments for the continued existence of historically black institutions (Kaplin & Lee, p. 811-15), but just as four system boards seem excessive for a state the size of Louisiana (2000 pop. 4,468,976, including 258,000 college/university students) (U.S. Census, 2000), Louisiana’s maintenance of eight proximate and 18 total state university campuses, 13 of them standalone, four-year degree granting universities—on par with Virginia, which has twice the total and student population—is yet another expensive, but politically volatile, aftereffect of de jure segregation. The Supreme Court in Fordice had already questioned the number of state institutions (eight) that Mississippi maintained (Kaplin & Lee, p. 810); the number in Louisiana is equally questionable. Even the Education Subcommittee of the Louisiana Senate believes that it should have just nine four-year schools (Cut the Fat, 2001, March 23, p. 10), and the Office of Fiscal Senate Services reported in 2002 that Louisiana’s state institutions remain dangerously underfunded at $288 million below the SREB average (Louisiana’s Financial and Budget Issues, 2002, March 6, p. 12-13). The Settlement Agreement would shift funds to historically black institutions, but would not change the fact that Louisiana had, and still has, too few resources spread across too many institutions.
The Limited Impact of the Settlement Agreement
At the time the Settlement Agreement was announced, those closest to the case—notably Gov. Edwards and District Court Judge Charles Schwartz hailed the plan; others, notably the NAACP, former Gov. Buddy Roemer, and local journalists remained skeptical (“Court backs college plan,” 1994, Nov. 14; Brown, 1994, Nov. 20). Keith Brown of New Orleans’ Times-Picayune quipped that “only an optimist believes that the educational inequities poured into the foundations of Louisiana’s black universities will be rooted out by the financial deal Gov. Edwin Edwards has confected” (1994, Nov. 20, par. 2). Since Edwin Edwards is now in federal prison, perhaps no one will know for sure whether his administration had presented the Agreement as a good faith attempt to desegregate, or, according to Buddy Roemer, whether the Agreement had more “to do with money and power and status quo—and politics” (qtd. in “Court backs college plan,” 1994, Nov. 15, par. 7).
To date Louisiana has complied with the terms of the Settlement Agreement, something it did not do under the previous Consent Decree, although compliance appears to have had limited effect. All but one of the campuses in the four communities with proximate historically black and white schools have roughly the same proportions of African-American to white students in AY 2002-2003 as in AY 1994-1995, the year before the Agreement took effect (Louisiana Board of Regents, 2002-2003). The new Baton Rouge Community College is also disproportionately white, to the chagrin of the court monitoring committee (Shuler, 2001, par. 3). While racial identifiability is not in itself considered unconstitutional per the Fordice standard (Kaplin & Lee, p. 811-12), it appears that the Agreement has not moved toward desegregating Louisiana higher education as was originally intended either, thus highlighting the level of influence that the vestiges of prior de jure segregation that were allowed to remain intact likely still have on maintaining de facto segregation.
By and large, areas without competing schools have fared better. Two of the regional universities, University of Louisiana at Monroe and Northwestern State University, while still racially identifiable, have made significant progress toward integrating, with racial profiles almost identical to the overall statewide racial profile. Although they are historically white, they are not located near historically black schools, and seem to be drawing students proportionate to the racial profiles of the areas they serve. The other regional, historically white universities not located near historically black institutions have become somewhat more diverse, but are still far from reflecting the state’s racial profile. In contrast, the racial profiles of the state’s two major research universities, LSU Baton Rouge (the state’s comprehensive “flagship”) and University of Louisiana at Lafayette (second in research expenditures and third in enrollment just behind UNO, although not located near a historically black institution), have not changed significantly since 1994 (Louisiana Board of Regents, 2002-03).
At first glance, only two schools in the four areas with proximate historically black and white institutions appear to have made significant progress toward integration—LSU Law Center and UNO. However, LSU Law Center is specifically required, under the terms of the Agreement, to reserve 10% of its entering class for black students (LSU Paul M. Hebert Law Center, p. 9); in the fall of 2002 10.9% of its students were black, compared to 4.7% in 1994; it must also be noted that LSU Law Center’s overall enrollment dropped by almost the same number in that period as the additional African-American students that enrolled. In this light, this hardly seems like progress. UNO, however, went from 71.8% white/14.5% black/13.6% other in 1994-1995 to 55.1% white/22.7% black/22.2% other in 2002-03. UNO’s increased diversity may have come in part at SUNO’s expense, since SUNO lost nearly 1,000 students between 1994 (4,314) and 2002 (3,386); UNO’s enrollment grew by over 2,000 (to 17,323) in the same period (Louisiana Board of Regents, 2002-03).
The historically black institutions do not appear to be attracting significantly more white students as originally hoped, despite the influx of funds and the development of new degree programs under the Agreement. It isn’t without trying. For example, Southern University is currently on a statewide “SU Awareness Tour” to promote interest in its programs, and it has also asked the state to supplement its $188 million budget (for five campuses plus its system governance) with an additional $7 million for programs developed under the Agreement, above and beyond what is currently stipulated (Warner, 2003, Mar. 18). Coming off a fiscal year in which institutions had to give millions of dollars back to the state, it is uncertain whether this request will be granted for the next fiscal year. This isn’t the only area in which the historically black institutions have struggled under the Agreement; in addition to SUNO, SUBR and Grambling have also experienced dramatic drops in enrollment (Louisiana Board of Regents, 2002-03).
Meanwhile, in the state capital, the point seems to be compliance with the fiscal terms of the Agreement, not desegregation, as this excerpt from the state’s higher education advertising policy as posted on LSU’s website illustrates:
Any public institution of higher education, any management board thereof, and the Board of Regents may expend public funds for advertising designed to increase the number of other-race students enrolled in public institutions of higher education or increase the percentage of African-American high school graduates who pursue a higher education, provided that such advertising expenditures shall not exceed the amounts necessary to implement the provisions of the consent decree entered in the U.S. of America vs. State of Louisiana, et al., U.S. District Court for the Eastern District of Louisiana, Docket #80-3300-A. (LSU, 2003, April 14, par. 9; emphasis added).
Overall, while there have been some areas of progress, it has been extremely limited, especially in three of the four communities with proximate historically white and black schools, and in the fourth community, increased diversity on the part of the historically white school may have hurt the enrollment of the historically black school. In addition, African-Americans are not attending the state’s major research universities in any greater proportions than before the Agreement took effect. Historically black schools are not attracting more white students despite increased funding and development, and their enrollments are dropping. Finally, as noted in the previous section, Louisiana institutions of higher education are, in the aggregate, extremely underfunded when compared to SREB averages (which are themselves below national averages). The state’s institutions cannot continue to be underfunded to the level that they are and improve educationally, limiting their ability to attract students of whatever race. Due to their decreasing enrollments, the some of the state’s historically black institutions may be, ironically, the most at risk in this fiscally volatile environment, particularly once the Settlement Agreement’s term ends in 2005.
Conclusion—Money Isn’t Enough, or Maybe There Just Isn’t Enough Money
Despite the lackluster progress in Louisiana under the Settlement Agreement, which is now in its eighth year, the Department of Justice’s Civil Rights Commission indicates that the monetary settlements in the similar Mississippi and Tennessee cases will bring about desegregation, without any note of the struggles involved in the Louisiana case:
The Section also has been active in the area of higher education desegregation. In February 2002, the court approved the settlement of Ayers and United States v. Fordice, the longstanding Mississippi higher education desegregation case. The United States and private plaintiffs negotiated a settlement dismissing the case and requiring Mississippi to provide $503 million over a seventeen-year period to improve the State’s historically black colleges while increasing access for minority students to the State’s historically white colleges. The United States reached a similar settlement in Geier and United States v. Sundquist, which is expected to further desegregate Tennessee’s system of public higher education. The settlement required the State to spend approximately $75 million over a five-year period to fund various projects, including establishing a College of Public Service and Urban Affairs, creating a new doctoral program or acquiring a private law school, and increasing efforts to recruit African-American undergraduate students. The Section also continues its monitoring and enforcement of the higher education desegregation orders in Alabama and Louisiana. (U.S. Dept. of Justice, n.d., par. 7)
However, it appears that even the most careful “monitoring and enforcement” of the existing Settlement Agreement in Louisiana will not bring about the changes that were originally sought in 1974. While directing additional funds to historically black institutions may be a necessary element of the desegregation process, that alone is not enough. Louisiana’s insistence on maintaining vestiges of its prior de jure segregated system, although finally accepted by the court, appears to be a major stumbling block to any positive change, in large part now because Louisiana cannot afford to maintain them all to any appropriate educational standard by its own admission (Louisiana’s Financial and Budget Issues, 2002, March 6). This was apparently less of an issue before 1994, when Louisiana’s lack of resources was buried even deeper in its historically black institutions. Paradoxically, the legal truce that was supposed to give African-American Louisianians more educational opportunities might, in some respects, have done more harm than good. The final outcome of the Settlement Agreement may not be either desegregation or maintenance of the status quo, but the collapse of Louisiana’s higher education system, as it is currently organized, under its own reallocated weight.
A less super “superboard.” (1996, September 25). The Advocate (Baton Rouge, LA). Retrieved May 4, 2003 from http://pqasb.pqarchiver.com/theadvocate/26294916.html?did=26294916&FMT=ABS&FMTS=FT&PMID=7580&desc=A+less+super+%22superboard%22
Arseneaux, Scott B. (1995, April). Chasing the dream: higher education desegregation in Louisiana. Tulane Law Review, 69 (1281). Retrieved April 26, 2003 from Lexis-Nexis.
Court backs college plan in Louisiana (1994, November 14). The New York Times. Retrieved May 3, 2003 from Lexis-Nexis.
Kaplin, William A. & Lee, Barbara A. (1995). The Law of Higher Education (3rd Ed.).
La. Rev. Stat. §49-1101.
Louisiana Board of Regents (2002-2003). Statewide Student Profile System Enrollment Data. Retrieved April 26, 2003 from http://www.regents.state.la.us/Reports/sspshome.htm
Louisiana State Senate (2001, March 23). Cut the Fat, p. 7-10. Retrieved May 5, 2003 from http://senate.legis.state.la.us/committees/CutTheFat/Report.pdf
Louisiana State Senate (2002, March 6). Louisiana’s Financial and Budget Issues: FY 2003 and Beyond, p. 12-13. Retrieved May 5, 2003 from http://senate.legis.state.la.us/FiscalServices/fy03.pdf
Louisiana State University and Agricultural and Mechanical College (2003, April 14). Advertising. Retrieved May 4, 2003 from http://www.fas.lsu.edu/purchasing/advertising.htm
LSU Paul M. Hebert Law Center (n.d.). Student Body. Retrieved May 4, 2003 from http://www.law.lsu.edu/pdf/AR99Student.pdf
Shuler, Marsha (2001, May 17). Progress slow in college diversity. The Advocate (Baton Rouge, LA). Retrieved April 26, 2003 from Lexis-Nexis.
United States Census Bureau (2000). Profile of Selected Social Characteristics: 2000 (Louisiana). Retrieved May 4, 2003 from http://factfinder.census.gov/bf/_lang=en_vt_name=DEC_2000_SF3_U_DP3_geo_id=04000US22.html
United States Census Bureau (2000). Profile of Selected Social Characteristics: 2000 (Mississippi). Retrieved May 4, 2003 from http://factfinder.census.gov/bf/_lang=en_vt_name=DEC_2000_SF3_U_DP2_geo_id=04000US28.html
United States Census Bureau (2000). Profile of Selected Social Characteristics: 2000 (Virginia). Retrieved May 4, 2003 from http://factfinder.census.gov/bf/_lang=en_vt_name=DEC_2000_SF3_U_DP2_geo_id=04000US51.html
United States Department of Justice Civil Rights Division Educational Opportunities Section (n.d.). Overview. Retrieved May 4, 2003 from http://www.usdoj.gov/crt/edo/overview.htm
United States of America v. State of Louisiana U.S. Dist. LEXIS 19854 (D.E.L.A.1993).
United States of America v. State of Louisiana, et al. 9 F.3d 1159 (5th Cir. 1993). Retrieved May 4, 2003 from Lexis-Nexis.
Warner, Coleman (2003, March 18). Southern University stumps for awareness; it wants state to add $7 million to budget. Times-Picayune (New Orleans, LA). Retrieved May 4, 2003 from Lexis-Nexis.
Woods, Keith (1994, November 20). Desegregation settlement won’t integrate schools. Times-Picayune (New Orleans, LA). Retrieved May 3, 2003 from Lexis-Nexis.