Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW MURPHY, District Judge. This is a desegregation lawsuit involving all public universities in the State of Alabama and a plaintiff class consisting of all black citizens of the State of Alabama. The case is before the Court on Plaintiffs’ Motion for Additional Relief with Respect to State Funding of Public Higher Education [3205]. I.Background A. Summary of the Knight Litigation 1. On January 15, 1981, John F. Knight, Jr. and a class of other alumni, students, and faculty members of Alabama State University (“ASU”) filed this lawsuit in the Middle District of Alabama, attacking vestiges of discrimination in the State of Alabama’s public higher education system. Knight v. Alabama, 787 F.Supp. 1030, 1048 (N.D.Ala.1991) (“Knight /”). The Court subsequently held two bench trials, the first in 1991, which lasted six months, and the second in 1995, which lasted six weeks. In both of those bench trials, the Court found that the vestiges of segregation remained within the Alabama system of public higher education, and that those vestiges violated Title VI of the Civil Rights Act of 1964 as well as the Federal Constitution. Knight I, 787 F.Supp. at 1368; Knight v. Alabama, 900 F.Supp. 272, 280-81 (N.D.Ala.1995) ("Alabama II”). 2. As a result of the Court’s findings in those bench trials, the Court has fashioned and approved a number of remedies, too voluminous to recount here. Those remedies are calculated to eliminate the vestiges of historical discrimination within the Alabama system of public higher education. The Court has also retained active jurisdiction over the case to the present time. Pursuant to this jurisdiction, the Court has appointed a Monitor and an Oversight Committee to oversee on a daily basis the administration of the Court-ordered remedies in this litigation. The Court also conducts periodic reviews of the effectiveness of the Court-ordered remedies. B. Plaintiffs’ Claims 3. Plaintiffs contend that serious underfunding of the Educational Trust Fund (“ETF”), from which appropriations are made for both K-12 and higher education, has jeopardized the success of the remedies crafted by the Court to eliminate the vestiges of historical discrimination in the State of Alabama’s system of public higher education. 4. Plaintiffs claim that adequate state funding is necessary for fashioning an effective, educationally sound, and practicable remedy for the State of Alabama’s history of de jure racial discrimination. Specifically, Plaintiffs claim that adequate funding is necessary for: (1) recruiting and retaining of black faculty members and high-ranking administrators at historically white institutions (“HWI”); (2) providing ASU and Alabama A & M University (“AAMU”) with the necessary resources to overcome a century of underfunding by the State; (8) providing AMU and AAMU the ability to fund adequately scholarships to attract other-race students after the Court-ordered scholarships expire; and (4) developing new, high-quality programs at ASU and AAMU, including the capital facilities and faculty necessary to operate them. 5. According to Plaintiffs, severe cuts in state funding have severely impeded the ability of ASU and AAMU to implement successfully remedial programs calculated to spur growth in academic, research, and public service functions. Plaintiffs specifically point to Alabama’s property tax system, which Plaintiffs claim is unfair, inadequate, and unconstitutional. Plaintiffs argue that because of low and inadequate property taxes, which are intended to be the primary source of K-12 funding, the State of Alabama has been forced to allocate an increasingly greater percentage of funds from the ETF to K-12 appropriations. As a result, over the past several years, all of the public state universities have been forced to increase tuition dramatically. Plaintiffs submit that the State’s tax burden disproportionately falls on the low-income portion of the population, which remains predominately black, and consequently acts as a barrier against blacks obtaining public higher education. 6. Plaintiffs claim that the State’s tax system is traceable to a prior de jure segregation regime. Specifically, Plaintiffs contend that the restrictions on the amount of taxes that can be levied on real property are directly traceable to a policy of shielding the real property of white landowners from taxes that would benefit the education of blacks — a policy that Plaintiffs claim persists to this day. Plaintiffs identify six provisions of the Alabama Constitution that they claim are traceable to a legislative intent to preserve racial segregation throughout the State’s system of public education and thwart and deny blacks an equal opportunity to obtain the benefits of public higher education in Alabama. 7. Those provisions are: (1) Ala. Const. § 214, as amended, which limits the rate of ad valorem taxation the Alabama Legislature may place on taxable property; (2) Ala Const. § 215, as amended, which limits the rate of ad valorem taxation counties may place on taxable property; (3) Ala. Const. § 216, as amended, which limits the rate of ad valorem taxation municipalities may place on taxable property; (4) Ala. Const. § 269, as amended, which limits the rate of ad valorem taxation counties may place on taxable property for the benefit of public education, and which further requires approval of those property taxes by the voters in a referendum election; (5) Ala. Const. Amendment 325, as amended, which establishes separate classes of property for purposes of ad valorem taxation, lowers assessment ratios, requires voter approval of all property tax increases, and establishes a cap or “lid” on total ad valorem taxes; and (6) Ala. Const. Amendment 373, which amends the property classes subject to taxation, lowers further the assessment ratios, establishes the current use method of property assessment, and establishes lower “lids” on total ad valorem taxes. 8.Plaintiffs contend that those six constitutional provisions, as well as laws enacted pursuant to those provisions, effectively segregate the races and deny equal opportunity to African-Americans. Plaintiffs therefore request that the Court: (1) enter a declaratory judgment that the those six constitutional provisions violates the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution, the Civil Rights Act of 1866, 42 U.S.C.A. §§ 1981 and 1982, and Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000d et seq.; (2) enjoin officials of the State of Alabama, pursuant to the Civil Rights Act of 1971, 42 U.S.C.A. § 1983, from enforcing the allegedly unconstitutional policies and practices relating to the funding of public education and from failing to reform those policies and practices in an educationally sound and practicable manner so as to remedy the racial discrimination those policies and practices allegedly perpetuate; (3) order the State of Alabama to reform the State’s tax system within one year in such a manner that both eliminates the vestiges of de jure racial discrimination in public school funding and provides adequate funding for public higher education, without denying adequate and equitable funding to K-12 schools; (4) enjoin the State, if it fails to enact remedial obligations within the time permitted, from reducing current state and local ad valorem millage rates and from enforcing Amendments 325 and 373 to the Alabama Constitution and order the State to apply state and local millage rates uniformly to all taxable property assessed at no less than sixty percent of its fair market value; and (5)grant Plaintiffs an award of attorneys’ fees and expenses. C. Procedural History 9. On July 28, 2003, Plaintiffs filed their Motion for Additional Relief with Respect to State Funding of Public Higher Education. On October 29, 2003, Plaintiffs filed a Motion for Partial Summary Judgment Regarding Their Motion for Additional Relief with Respect to State Funding of Public Higher Education. On January 8, 2004, the Court held a hearing with respect to Plaintiffs’ Motion for Summary Judgment, and on January 28, 2004, the Court entered an Order granting an evidentiary hearing with respect to Plaintiffs’ Motion for Additional Relief with Respect to State Funding of Public Higher Education. The Court subsequently denied without prejudice Plaintiffs’ Motion for Partial Summary Judgment. 10. From May 4 to 5, 2004, the Court held an evidentiary hearing with respect to Plaintiffs’ Motion for Additional Relief with Respect to State Funding of Public Higher Education. The Court now resolves that Motion. 11. Findings of Fact A. Property Tax Policies Traceable to De jure Segregation 1. The 1819 Constitution 11. On March 2, 1819, Alabama was admitted to statehood. (Pis.’ Request for Admissions ¶ 17.) The act of Congress admitting Alabama to statehood continued the practice of reserving the sixteenth section of every township as a permanent endowment for public schools and reserving one of two full townships as an endowment for a state university. (Id.) The statewide total of sixteenth section public school lands was approximately one million acres. (Id. ¶ 18.) The inhabitants of the townships, rather than the State government of Alabama, owned those public school lands; therefore, the 1819 Constitution could only require that the Alabama Legislature preserve the lands from unnecessary waste or damages and apply funding, which could be raised from such lands, in accordance with the purpose of such grants. (Id. ¶ 19.) 12. Taxation and appropriations for public education under the 1819 Constitution were statutorily governed— the constitution simply “encouraged” education and gave the General Assembly plenary power to raise funds for schools, as well as the state university. 1819 Ala. Const. Art. on Education. The Alabama Legislature established local mechanisms for leasing the sixteenth section lands for public schools: school commissioners were authorized to be appointed by the county court to manage the sixteenth section lands and to appoint trustees for each school district. (Pis.’ Request for Admissions ¶ 20.) Rents from the leases of the sixteenth section lands were initially disappointingly low, and pressure began to build to sell those lands. (Id. ¶21.) 13. In 1823, the Alabama Legislature established a state bank because private banks were unable to satisfy the demands of borrowers, who sought capital funds to buy, among other things, slaves and land. (Pis.’ Request for Admissions ¶¶ 22-23.) To provide lending capital for the state bank, the Alabama Legislature successfully petitioned Congress in 1827 to authorize the State to sell the sixteenth section lands with the consent of the inhabitants of the townships that owned the lands. (Id. ¶¶ 24-25.) Congress also specified that the proceeds of such sales must be devoted exclusively to the use of public schools. (Id. at ¶ 25.) 14. In 1828, the Legislature established procedures for selling the sixteenth section lands. (Pis.’ Request for Admissions ¶ 26.) Among the purchasers were speculators, many of whom were authorized by law to pay for their land purchases over time. (Id.) The proceeds of the land sales were required to be deposited into the state bank, where they became an additional source of capital for borrowers. (Id. ¶ 27.) On January 15, 1828, by act of the Legislature, the State assumed fiduciary responsibility of the proceeds of the sales of sixteenth section lands, and became obligated to pay interest directly to the townships and school districts. (Id. ¶ 28.) 15. School land purchasers eventually found that their investments outstripped profits, and consequently failed to make payments. (Pis.’ Request for Admissions ¶ 29.) In 1843, the state bank failed, and $1.3 million derived form the sales of sixteenth section lands and over $300,000 from the sale of the university lands were lost. (Id. ¶¶ 30-31.) In 1848, the Legislature committed the State to pay interest at six percent of the indebtedness in perpetuity. (Id. ¶ 32.) 16. Most of the antebellum public schools were concentrated in the Black Belt, a fertile region of the State, so named for the dark color of the soil. (May 4, 2004, Tr. at 103-04.) The high concentration of schools in that region was a result of both the relative high value of the land in that region and the Whiggish residents of the Black Belt counties who tended to value formal education more than the Jacksonian Democrats residing elsewhere in the State. (Dep. of Dr. J. Mills Thornton at 26-29.) 17. On February 14, 1854, the Legislature established a statewide public school system, authorizing each county to levy a one mill school tax on real and personal property without the requirement of voter approval by referendum. (Pis.’ Request for Admissions ¶ 20.) Revenue generated from the school tax was paid directly into the county treasury. (Id.) The 1854 school statute required local jurisdictions to submit the proceeds from the sixteenth section land grants to the State, which would redistribute the funds based on the number of students in each school system. (Thornton Dep. at 23-25.) 18. Before the Civil War, the slave tax and ad valorem taxes land were the principal source of revenue for county governments. (Thornton Dep. at li-li.) For most of the antebellum period, however, “essentially none” of the revenues from the slave tax and ad valorem taxes went to public schools. (Id. at 21.) Funding for public schools instead depended on the revenues obtained from the lease of sale of the sixteenth section land grants. (Id. at 22-23.) Beginning in 1847, the Black Belt counties succeeded in changing the statutory law to shift more of the tax burden from slaves to an ad valorem tax on land, which benefited taxpayers in the Black Belt counties because those taxpayers generally owned more slaves than other residents in the Hill and Wiregrass counties. (Id. at 19-21, 26-29.) During the five years proceeding the Civil War, the amount of ad valorem land tax collected by the State surpassed revenue generated from the slave tax. (Id. 20-21.) By 1861, the 1854 public school fund was producing an annual revenue of about $250,000. (Id. at 33.) 2. The 1861 and 1865 Constitutions 19. The 1861 Secessionist Constitution and the 1865 Presidential Reconstruction Constitution retained the provisions of the 1819 Constitution with respect to education. (Thornton Dep. at 32-33.) Those Constitutions, like the 1819 Constitution, did not restrict the Legislature’s plenary authority to regulate the funding and operation of public education. (Id. at 33-34.) 3. The 1867-68 Constitution 20. In 1867 a new state constitution, also known as the Radical Reconstruction Constitution, was drafted, and in 1868 it was ratified (the “1868 Constitution”). (Thornton Dep. at 34.) The 1868 Constitution established a centralized public school system, including the University of Alabama, under the control of a state board of education. (Id. at 34-36.) 21. The 1868 Constitution also authorized the Legislature to levy a state poll tax of $1.50 for the use of public schools, and centralized all the sixteenth section lands under the control of the State Board of Education. (Thornton Dep. at 38-39.) Local school districts also received the power to levy a poll tax to be used for local education. (Pis.’ Request for Admissions ¶ 41; Thornton Dep. at 37-38.) Additionally, all federal lands granted for education purposes, as well as a tax levied on industrial and commercial corporations, were earmarked for education. (Pis.’ Request for Admissions ¶ 41.) The 1868 Constitution also placed a duty on the Legislature to limit the taxing authority of local governments; however, no constitutional limit was specified. (Id. ¶42 (quoting 1868 Ala. Const. Art. XIII § 16).) 22. Although the schools in Alabama were segregated while the 1868 Constitution was in effect, the State Board of Education exercised special legislative powers to mandate that state public school funds be distributed on a per capita basis, without regard to race. (Thornton Dep. at 37-38.) 23. In addition to the poll tax and the proceeds of the sixteenth section lands, the 1868 Constitution required that all property, not just land, be assessed on a uniform ad valorem basis. (Thornton Dep. at 40.) Further, “because the tax assessors [were] radical Republican officials and they [had] no particular interest in protecting well-to-do white property holders, virtually none of whom were Republicans, there ... was quite an aggressive effort to make sure that ... these values were accurate.” (Id. at 42.) Consequently, the ad valorem general property tax generated substantial revenue, doubling the State revenues for public education from amounts received prior to the Civil War. (Id.) The University of Alabama, which was barely functioning with a few students on $36,000 income from the lost land grant did not receive any of those public school funds, however. (Id. at 42-48.) 24. During the Radical Reconstruction, white small farmers found themselves paying substantially higher taxes on their property, yet receiving fewer public benefits because the State was distributing those funds equally among white and black schools. (Thornton Dep. at 53-55.) Whites resented having to pay for the education of blacks, who paid relatively few taxes, and that resentment fueled accusations of mismanagement and abuse of public funds — i.e. that their increased taxes were simply lining the pockets of white carpetbaggers and radical officials. (Id. at 50-52.) As a result, poorer white landowners became motivated to cooperate with wealthier whites to form a “sort of all white alliance of the Democratic party,” united for reducing taxes and establishing supremacy for whites. (Id. at 55-56.) On the other side of the political line were the Republicans, who were essentially blacks and a handful of their white allies, carpet- ' baggers, and scalawags. (Id. at 55-56.) 25. Following the failure of railroads whose bonds had been guaranteed by the State and the Panic of 1873, funding for public education became increasingly strained. (Thornton Dep. at 59-60.) As discussed in the next section, funding for public education fell even more following the ratification of a new constitution in 1875. (Pis.’ Request for Admissions ¶ 53.) 4. The 1875 Constitution 26. Because the 1868 Constitution provided for legislative apportionment on the basis of total population, and because blacks were counted for the first time, legislative power shifted from the white counties to the Black Belt counties. (Thornton Dep. at 56-57.) Although blacks constituted a large portion of the population in the Black Belt counties, after Redemption, blacks were controlled by intimidation and fraud, so as to permit a small number of whites in the Back Belt counties to exercise disproportionate power in the Legislature. (Id.) 27. In 1875, whites from the Black Belt, concerned that a black majority might regain political power and raise taxes, placed in the constitution millage caps for both state and local property taxes. (Thornton Dep. at 60-69; Pis.’ Request for Admissions ¶ 51.) The 1875 Constitution thus became the first Alabama constitution to place strict constitutional limits on the ability of both the State and local governments to tax property. (Thornton Dep. at 60-69; Pis.’ Request for Admissions ¶ 51.) 28. Specifically, the 1875 Constitution established a maximum tax rate of seven and one half mills, which was the same legislatively established rate that had been assessed under the 1868 Constitution, and a maximum tax rate of five mills for counties and municipalities. (Thornton Dep. at 65-66.) Racial motives permeated the establishment of constitutional caps on millage rates: [Djuring Reconstruction, the experience of [Black Belt] whites had been a county government which was controlled by blacks and their Republican allies and which had very heavily taxed them, and taxed them for purposes that they largely regarded as illegitimate, such as the education of the Freedmen. Now that they had power back into their own hands, they were intent on ... using that new control to protect themselves from the possibility that the black majority in their counties would ever again be able to use that political power ... to tax them in a way that would force them as the property holders to cough up the funds, ... which would be used to the benefit of the majority of the people in the Black Belt who were black and essentially nonproperty holding .... And so they wanted to write into the Constitution permanent protections. (Thornton Dep. at 67-68.) 29. Whites living in the Black Belt counties also used their influence over local tax assessors to reduce property assessments in the Black Belt far below market value, which disadvantaged other white counties. (Thornton Dep. at 60-69.) Additionally, the legislative sessions that followed ratification of the 1875 Constitution further lowered the millage rate from 7.0 mills in 1877 to 4.0 mills in 1890 so as to shield property from taxation. (Pis.’ Request for Admissions ¶ 54.) 30. From 1875 to 1891, black schools received a proportionate amount of school funding. (Thornton Dep. at 78.) In 1891, however, the Apportionment Act was enacted, thereby giving discretionary authority to local school trustees to apportion funds among schools. (Id. at 80-81.) As a result, funding destined for black schools was diverted to white schools all over the State. {Id. at 81.) “But of course in the majority Black Belt townships, ... this ha[d] an enormous and devastating effect on black education.” {Id.) 31. The 1891 Apportionment Act also had an impact on the politics of property taxes. (Thornton Dep. at 81, 83.) By diverting funds from black schools to white schools, there was less of a need for additional property taxes in Black Belt counties because white schools were being funded adequately. {Id. at 82.) Consequently, the Black Belt whites, due to total population apportionment, were able to thwart attempts by reformers in urban areas and in white counties to raise taxes to increase funding for public schools. {Id.) e. The 1901 Constitution 32. Disfranchising blacks and maintaining white supremacy were the central purposes of the 1901 Constitution. (Thornton Dep. at 97, 119.) Indeed, the public school funding provisions of the 1901 Constitution are directly traceable to the 1875 Constitution, and propertied interests in the State were successful once again in protecting their financial interests. (Pis.’ Request for Admissions ¶ 67.) 33. Black Belt whites were willing to support legal disfranchisement of blacks in the 1901 Constitution, and thus relinquish their control over state politics through control of the large black voting populations, out of fear that events at the national level would eventually lead to the re-enfranchisement of blacks, thus placing whites’ property in danger of being taxed to support education for blacks. (Thornton Dep. at 100-06.) The ensuing compromise between the whites in the 1901 constitutional convention was that the white counties would effectively control the executive offices of the State, while the Black Belt counties would control the Legislature. {Id. at 105.) This arrangement assured that the Black Belt could thwart attempts to increase property taxes. {Id.) 34. Considerable support existed for dividing funds for public education according to the taxes paid by each race. (Pis.’ Request for Admissions ¶ 65.) Racial feelings, based on social and economic rivalry with blacks, had always run high among the poorer whites. {Id.) 35. White delegates from black counties, however, defeated the racial apportionment of taxes because it was against those whites’ interests in securing a greater share of school revenues, which the whites were already allocating disproportionately to their white schools. (Pis.’ Request for Admissions ¶ 64.) 36. The urban industrialists and Black Belt planters who controlled the 1901 constitutional convention preserved the 7.5 total millage cap that existed under the 1875 Constitution: the cap on state property taxes was reduced to 6.5 mills, but counties were authorized to levy up to 1.0 mills for schools. (Thornton Dep. at 108-11.) The 1.0 \ mill optional county tax for schools contained for the first time in Alabama history a voter referendum requirement, which was crafted to ensure, with disfranchisement, that only whites could give their consent to higher local property taxes. {Id. at 106-07, 115-16; Pis.’ Request for Admissions ¶ 66.) This general hostility to home rule in the 1901 Constitution, as well as the 1875 Constitution, was motivated at least in part by race: “white control of the state government ... is an important fail-back provision for guaranteeing the maintenance of white supremacy in majority black counties. And so it’s important not to have too much power in the hands of the counties, or to make sure that the power ... that is at the local level is in safe, that is, Democratic and white hands.” (Thornton Dep. at 92.) White supremacy was unquestionably the dominant view of education for all the members of the 1901 constitutional convention: [Tjhere is a wide variety of opinions about ... the interaction of education and race. There are delegates who believe that blacks should receive essentially only vocational education. And there, on the other hand, are delegates who believe that over a long period of time through the educational mechanism, it might be possible to improve the status of blacks. There is nobody at the convention who is not a white supremacist, but there are varieties of opinions about ... whether white supremacy is an immediate necessity or whether white supremacy will always exist because of inherent differences between the races. And everything in between. That’s a whole spectrum of opinions. I doubt, however, that there was anyone in the white counties who needed to be convinced, at least of the immediate necessity, of white supremacy. There is nobody at the convention who’s not a white supremacist. (Id. at 111-12.) 37. Once blacks were disfranchised by the 1901 Constitution, whites became more willing to support public education. (Thornton Dep. at 123.) In the Black Belt counties, support existed for a new teacher certification law, uniform textbooks, and redistricting. (Pis.’ Request for Admissions ¶ 73.) The local tax privilege, however, was not popular in the Black Belt counties-by 1914, of the forty-six counties in Alabama that had levied a local school tax, only one (Marengo) was in the Black Belt. (Id.) 38. During the Progressive Period preceding World War I, the Legislature made three attempts to increase funding for education. First, a state board of equalization was created to police county tax assessors in an effort to remedy unreasonably low tax assessments. (Thornton Dep. at 125-26.) Second, in 1911, the Legislature passed a statute, which in 1935, was later slightly amended, establishing a sixty percent assessment ratio for all property. (Id. 126-27.) Third, in 1915, after school revenues again fell beneath expectations, Amendment 3 was ratified, which authorized counties to levy an additional one mill for schools and lowered the referendum margin from three fifths to a simple majority of those voting. (Id. at 129-30.) 39. In 1933, an constitutional amendment was ratified authorizing an income tax. (Thornton Dep. at 137-38.) The amendment provided that the proceeds of the income tax would first fund the State’s floating debt, then would be allocated to a long term reduction of the State property tax. (Id. at 138.) That amendment did not restrict the authority of local governments to levy property taxes. (Id.) 40. In 1927, inasmuch as the constitutional caps on state and local taxation of personal property required other forms of taxation to raise revenue, the Legislature by statute segregated public school funds from general funds in the State budget, creating what was then called the Special Education Trust Fund. (Thornton Dep. at 142-43.) In 1935, the Legislature also statutorily enacted the State’s first sales tax and created the Minimum Program Fund for schools. (Id.) The establishment of the Special Educational Trust Fund and the Minimum Program Fund represented substantial advances in the funding of public schools in the State. (Id. at 143.) Prior to the establishment of the income tax, sales tax, Special Educational Trust Fund, and the Minimum Program Fund, state universities had received appropriations from other state revenues — i.e. the State property tax. (Id. at 143-44.) 41. In 1947, the state income tax was earmarked for K-12 teacher salaries by Amendment 61 to the Constitution of 1901. (May 4, 2004, Tr. at 155.) f. Amendments 325 and 373 42. The impact of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), on white Alabamians’ support for public education varied according to how seriously they took the threat of federally mandated school desegregation: For many years after Brown the feeling was quite widespread in the South that there simply was going to be no way that the federal government would ever have the power to bring integration to the state. There was no sense ... that integration was impending or even very likely. And if you are quite confident that that’s true, then you can continue to be an advocate of increased funding for the schools and the confidence that these schools ... will continue segregated. If, on the other hand, you believe that there is some real likelihood that schools will be integrated, then you would have very much more substantial doubts because all political leaders at this period said, and some actually believed, that the outcome of the integration of the schools would be the abolition of the schools. Certainly Governor John Patterson was, not merely in rhetoric but actually in his heart, ... to the abolition of the public school system of the state if integration came to the state, or particular school districts, ... if there was no likelihood that it was going to become statewide, he was prepared to close them in particular districts and leave them open elsewhere. And Governor Wallace, I think actually welcomed the thought of general conversion to a system ... of private segregated academies if there continued to be some form of public funding that did not go to the school, but instead went to the parents in the form of tuition grants or scholarships, ... which the parents could then use to send their child to the segregated private academy. (Thornton Dep. at 163-64.) 43.An attempt was made to raise the constitutional limit on local property taxes in 1955, but it was defeated. (Pis.’ Request for Admissions ¶ 80.) The rate of ad valorem taxation which was constitutionally fixed at a maximum of 7.0 mills had not been changed since Amendment 3 was approved in 1916. (Id. ¶ 81.) Permissive legislation and the required constitutional amendments had granted thirteen county and twenty-three city school districts the right to raise their school ad valorem taxes, with the highest rates being 17.5 mills. (Id.) The local school tax amendment would have allowed the addition of another 5.5 mills to the allowable seven mills to produce a total of 12.5 mills for school purposes when local citizens so desired. (Id.) But the voters rejected those tax increases over which they had control; these included taxes to benefit education. (Id.) The same 1955 legislature increased the tax rate 16.67 percent on gasoline to raise $50 million for highways and levied for welfare a tobacco tax to raise $2.4 million and increased taxes on alcoholic beverages and corporations. (Id.) The people of the State had no chance to vote against those issues, but they did exercise then-prerogative to disapprove taxes when the school tax amendments were placed before them. (Id.) The constitutional amendments affecting education were all soundly defeated at the polls on December 6, 1955. (Id.) This defeat threw education in Alabama into the worst proration of funding since the depression. (Id.) 44. On December 20, 1955, the voters approved Amendment 111, which this Court found to have “adopted most of the recommendations of the 1954 Interim Legislative Committee report for the racially discriminatory purpose of preserving segregation in the public elementary and secondary schools of the state.” (Pis.’ Request for Admissions ¶ 82 (citing Alabama I, 787 F.Supp. at 1104).) The legislature and citizens denied additional taxes for the support of public education, a condition which lasted until 1963 and from which it took education many years to recover. (Pis.’ Request for Admissions ¶ 83.) This provision remains unchanged today, and the support of public education is constitutionally permitted but not required in Alabama. (Id.) 45. As the threat of school desegregation intensified, legislative enthusiasm for funding public schools sharply diminished. (Pis.’ Request for Admissions ¶ 84.) Particularly in the Black Belt, whites were committed to the idea that public education could not continue if in fact it was ordered to occur on an integrated basis. The schools would simply have to be closed; public education would have to end because an integrated education was not acceptable. [WJith that as a fundamental first priority, any efforts to raise property tax, increase any kind of funding of schools, was in serious trouble and of great question until the matter of school integration was settled. And so when there were funding crises in education in the 1950’s, ... it was very difficult to get support for that even when it was advocated by the staunchest of segregationists like Governor John Patterson, who understood that the white schools needed money, the universities needed money, but he also had to announce ... this is with ... the understanding that any new funding occurs only with the understanding that schools stay separate. (May 4, 2004, Tr. at 97.) 46. The 1959 Legislature authorized the creation of independent school districts throughout the state. Acts 1959, 2nd Ex.Sess., No. 126, p. 198. (Pis.’ Request for Admissions ¶ 85.) 47. In 1962, at Governor Patterson’s request, the Legislature passed a constitutional amendment authorizing county commissions to increase property taxes by 5 mills, subject to approval by a majority of the voters. (Pis.’ Request for Admissions ¶ 86.) This amendment was approved by the voters on May 1, 1962, and proclaimed ratified as Amendment 202 on May 10, 1962. (Id.) Only three cities and eight counties actually passed additional ad valorem taxes in 1962. (Id. ¶ 78.) Many more proposals were turned down. (Id.) 48. Meanwhile, throughout the 1950s and 1960s, it was becoming more and more certain that the courts would order reform of the crazy quilt system of property assessments around the state. (Thornton Dep. at 167.) Public utilities, because their property was assessed at the state level, were having state and local millage rates applied to their property’s fair market value based on substantially higher assessment ratios (although not the full sixty percent state law called for) than were being applied to others by county tax assessors. (Id. at 169.) “The highest assessment level in the state was 30 percent. And that was in Jefferson County. Everything else ... was below 30 percent. And it was ... in some counties vastly, grossly below 30 percent.” (Id.) The Alabama Supreme Court ruled in favor of the utilities when they challenged their assessments in court. State v. Ala. Power Co., 254 Ala. 327, 48 So.2d 445 (1950). 49. Until adoption of the first Lid Bill amendment in 1971, the Alabama Constitution required all taxable property within the State to be included in a single class for ad valorem tax purposes. (Pis.’ Request for Admissions ¶ 90.) 50. In 1957, the Alabama Education Commission rejected proposals to reform the property tax system and instead recommended a sales tax increase. This tax had long been supported by the Black Belt planters and urban industrialists as a way to ensure that non-property owners of Alabama paid their “fair share” of the tax burden. (Pis.’ Request for Admissions ¶ 92.) In July 1959, Superintendent of Schools Austin Meadows issued a statement that warned: “The enemies of public schools and those who did not want to pay the school bills timed sharp and deep threats at public schools with the fear of integration to choke education in this state.” (Id. ¶ 93.) Their attacks, according to Meadows, were not direct: “They oppose the means for providing education.” Id. 51. The most powerful lobbying organizations in Alabama were the Alabama Chamber of Commerce, the Associated Industries of Alabama and the Alabama Farm Bureau Federation. (Pis.’ Request for Admissions ¶ 94.) In 1959, exercising his statutory authority as Revenue Commissioner, Harry Haden issued a revenue regulation that required all property to be assessed at thirty percent of its fair market value. (Id. ¶ 95.) Legislators introduced bills that would strip the Revenue Commissioner of his powers. (Id.) In the end, Governor Patterson compromised by agreeing to give up Haden’s equalization program in return for abandonment of the bills stripping the Revenue Commissioner of his authority. (Id. ¶ 96.) 52. The reapportionment controversies of 1962 broke down along urban-rural lines. See generally Sims v. Frink, 208 F.Supp. 431 (M.D.Ala.1962) 13-judge court), aff'd sub nom. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Nevertheless, the Black Belt agricultural interests and Birmingham industry still shared opposition to increased taxes. (Pis.’ Request for Admissions ¶ 97.) Whites were concerned about losing control of their local governments, first, because blacks were gaining the balance of power in local elections by the mid-1950s in Montgomery and Tuskegee, and because blacks were gaining voting majorities by 1966 in Macon, Greene, and potentially a dozen more counties. (Id. ¶ 98.) For Black Belt landowners the connection between legislative reapportionment, the rise of the black vote, and fear of increased property taxes was particularly strong. (Id. ¶ 99.) 53.An example of this fear is Sam Engel-hardt. Sam Englehardt was a state senator from Shorter, Macon County, Alabama, during the 1950s. (May 4, 2004, Tr. at 88-90.) During his political career, which extended into the 1960s, Senator Englehardt was also head of the White Citizens Council of Alabama, Chairman of the Alabama Democratic Party, State Highway Director, the legislator who proposed splitting Macon County, and the legislator who procured the famous Tuskegee gerrymander that was struck down in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). (Id.) See generally Dillard v. Crenshaw County, 640 F.Supp. 1347, 1357 (M.D.Ala.1986) (discussing Engelhardt’s role in Alabama’s efforts to suppress black voting strength). Behind Senator En-gelhardt’s concern about black voting lay economic self-interest. Pis.’ Request for Admissions ¶ 100. “Everybody has an angle when they get in [politics],” he said. “I was worried ... about the tax assessor ... because of all our holdings,” he said, referring to the many thousands of acres of rich agricultural land the En-gelhardt family owned in Shorter. (Id.) “That was my angle — to protect ourselves. Not only me, but my family. My aunts, uncles, and cousins owned land.” (Id.) He based his concern about who was tax assessor on a racist assumption. (Id.) “If you have a nigger tax assessor,” he rhetorically asked a journalist in 1956, “what would he do to you?” (Id.) The obvious answer, to Engelhardt, was that a black tax assessor would try to exploit white landowners. (Id.) 54. Engelhardt’s attitudes about the threat to whites’ property taxes posed by rising black political influence was typical of whites’ attitudes throughout Alabama, particularly in the Black Belt. May 4, 2004, Tr. at 90. Mr. Engelhardt I think was fully representative of the attitude of the folks who had long been in power, who had dominated the Black Belt counties, who had dominated the legislature in Alabama since Reconstruction, and for that matter who had their way about all the crucial issues in politics in Alabama since Reconstruction.... From their historical experience in Alabama, the most basic and first public policy effort that blacks had made during Reconstruction once they got the franchise initially was to enact property taxes that were much higher on land than had ever existed in Alabama up to that time. So, there’s that historical experience that informed for subsequent generations of Alabamians that ... what a black voter, an empowered black citizen, would want to do, ... was to put taxes on white landowners. (Norrell, May 4, 2004, Tr. at 91.) 55. During his first term as governor, George Wallace, who grew up in Barbour County, made no attempt to achieve property tax reform. (Pis.’ Request for Admissions ¶ 102.) Throughout the 1960s and 70s, his hallmark opposition to school desegregation, his rural county constituent base, and the growth of private school options for white flight all contributed to the defeat of property tax reform. (Id.) In January 1964, Governor Wallace toured the newly opened Macon Academy. (Id. ¶ 103.) He praised the private school and a month later called for public contributions to support white students boycotting Macon County’s integrated schools. (Id.) Wallace’s office maintained a file of letters from individuals giving money to the Macon Academy; one contribution was for twenty thousand dollars. (Id. ¶ 104.) A woman wrote to Wallace telling him that she would like to donate seven thousand dollars toward the improvement of education in Alabama and asked him to suggest where it should go. (Id.) He replied: “You may wish to contact the Macon Academy in Tuskegee, Alabama. The academy is a private school which was set up by individuals in Macon County who were not satisfied with the Federal Court order which did away with their rights to run the schools in that County as they saw fit.” (Id.) There were many more letters like this in the one-and-a-half-inch-thick file. (Id.) Governor Wallace also supported white academies in other counties, and he pressured cabinet members to contribute to them. (Id. ¶ 105.) His office maintained lists of contributors. (Id.) 56. The principal opposition to reform of the property assessment system came from the Alabama Farm Bureau and forestry interests, which began lobbying for a classification system that would protect them from high assessment ratios. (Thornton Dep. at 170-71.) The taxation system of Alabama was supported by the alliance of Black Belt planters and urban industrialists, who continued to protect their private financial interests. (Pis.’ Request for Admissions ¶ 91.) 57. When Lurleen Wallace succeeded her husband as Governor, Wallace’s Black Belt supporters began to push to protect their property against increased taxes. (Pis.’ Request for Admissions ¶¶ 106-07.) An effort to amend the 1901 Constitution to eliminate, once and for all, the century-old requirement of equal assessment and taxation rates, failed; (Id.) 58. In 1967, the legislature’s Joint Committee on Ad Valorem Taxation issued a report that recommended the establishment of a statewide reassessment program, with professional qualifications required of county boards of equalization and lowering of the fictional sixty percent assessment maximum rate to a more realistic thirty percent. (Pis.’ Request for Admissions ¶ 109.) Timberland would be assessed at its bare-land value. Growing timber would be exempt from property taxation, as would be other crops, but a severance tax would be levied on timber when marketed. (Id.) There would be no exemptions for machinery or other personal property (for example, autos, boats, airplanes, trucks, and trailers) used in a business. (Id.) 59. A report issued by a four-person minority of the interim committee recommended different percentage levels for the assessment of the various classes of property. (Pis.’ Request for Admissions ¶ 110.) In particular, it recommended that rural property be assessed at lower levels than other kinds. (Id.) Bills reflecting this Farm Bureau Federation perspective were introduced in the Senate on Tuesday in the third week of July 1967, and assigned to the Finance and Taxation Committee. (Id.) 60. On August 8, 1967, the Farm Bureau bill was defeated in the House because it failed to win the three-fifths vote required of a constitutional amendment. (Pis.’ Request for Admissions ¶ 111.) On August 10, 1967, the House voted to reconsider the Farm Bureau bill, and the motion passed by a vote of seventy-two to sixteen. (Id. ¶ 112.) In the bill that finally passed the House, personal property was assessed at twenty percent, business property at twenty-five percent, residential property at twenty percent, and utilities at forty percent. (Id.) Farm land was assessed at the lowest ratio of all, fifteen percent. (Id.) 61. In 1967, the legislature ultimately passed a thirty percent cap on property tax assessments plus a number of exemptions that changed virtually nothing. (Pis.’ Request for Admissions ¶ 114.) This outcome represented a victory for the rural counties despite the fact that the legislation did not contain property categories. (Id.) 62. Although the legislation did not propose to amend the 1901 Constitution to establish the separate property tax classes the Farm Bureau forces had wanted, it did formally repeal the sixty percent uniform assessment ratio, capping all property assessments at thirty percent of fair market value and granting state and local tax officials wide discretion in the setting of ad valorem assessment rates. (Pis.’ Request for Admissions ¶ 117.) This assured that local officials would not increase taxes significantly. (Id.) 63. In 1968, an agriculture study commission, concerned that farmers might be asked to shoulder property taxes at rates comparable to what others were paying, proposed to change Alabama law to provide that assessments be based on current use and not the market value of property. (Pis.’ Request for Admissions ¶ 119.) The governor at that time, Albert Brewer, focused on a county’s tax effort and ability to pay measured by the county’s mean per-capita income compared to the mean per-capita income of the state. (Id. ¶ 120.) Thus, a relatively poor county making a relatively strong effort to support its schools would be rewarded with extra state funds; likewise, a relatively wealthy county doing a below-average job of supporting its schools would be denied some funds even if it raised more taxes than the poorer county. (Id.) The plan gave counties two years to bring their tax systems up to the state standard and gave county commissions the power to propose tax increases to their electorates. (Id.) 64.The urban bloc began a filibuster in the Senate on April 15, 1969. (Pis.’ Request for Admissions ¶ 121.) Its proximate target was the bill to create the Alabama Commission on Higher Education (“ACHE”), but it could have been any bill. (Id.) The urban bloc had tried to wring concessions on property tax equalization out of Governor Brewer in the House and wanted funding distribution formulas closer to a per student basis. (Id.) Governor Brewer favored property tax equalization, but he feared that it would not get through the special session and that it would probably tangle up his other bills as well. (Id.) The Achilles’ heel in the urban bloc’s Senate filibuster, however, was that urban legislators favored much of Governor Brewer’s education program. (Id. ¶ 122.) They knew or suspected that in 1970 he would be competing for reelection against George Wallace, who would not support property tax equalization. (Id.) To embarrass Brewer too much with their filibuster would consequently be counterproductive. (Id.) Notwithstanding doubts about the usefulness of Governor Brewer’s new minimum standard property tax bill with its penalty provision, urban legislators supported it, and in 1969 it passed the legislature and was signed into law. (Id. ¶ 123.) 65. By 1971, two years following enactment, when the penalty provision of the law was scheduled for implementation, few underassessed counties had acted to bring themselves up to the state norm. (Pis.’ Request for Admissions ¶ 124.) Some counties had tried but failed to win the taxpayers’ approval. (Id.) In all, thirty-nine counties stood to lose funds. (Id.) 66. In 1971, a three-judge federal court in Weissinger v. Boswell, 330 F.Supp. 615 (M.D.Ala.1971) (3-judge court), held that the 1967 statute violated both the federal and state constitutions. (Pis.’ Request for Admissions ¶ 125.) Specifically, the Weissinger court made the following findings: In 1969 the State Department of Revenue commenced an assessment-sales ratio study to determine the ad valorem tax assessment ratio of fair and reasonable market value of real property in each county in the state and to determine the statewide median ratio. The results of this study, the reliability of which is not in issue, reveal that the median ratios for the individual counties in the State of Alabama range from lows of 6.7 and 7 percent of fair market value in rural Hale and Washington Counties to highs of 23.1 and 26.8 percent of fair market value in urban Madison and Jefferson Counties. The study further reveals that the median assessment ratio for the state was approximately 16.9 percent of fair market value. Weissinger, 330 F.Supp. at 621 (footnotes omitted). The Weissinger court further ruled that because the 1967 law had been declared unconstitutional, the thirty percent of market value assessment ratio as provided in that law could no longer be enforced; thus, the court restored the sixty percent ratio set out in the 1935 statute. Id. at 625. The court gave the State one year to bring its property tax laws into compliance with the court’s equalization mandate. Id. Subsequently, because of the difficulties in conducting a statewide reassessment of property, the court in an unreported order extended to June 29, 1979, the deadline for applying equal assessment ratios for all like property throughout the state. (Pis.’ Request for Admissions ¶ 126.) 67.In the meantime, however, George Wallace had defeated Albert Brewer in the 1970 gubernatorial election. (Pis.’ Request for Admissions ¶ 127.) Even though only one black legislator, Fred Gray, had been elected in 1970, the three-judge federal court in Montgomery clearly was headed toward new decrees that would more nearly equalize the populations in House and Senate districts and empower additional black voter majorities. (Id. ¶ 128.) Property owners were concerned about the prospect of increased property taxes. (Id.) Legislative power was already passing to urban areas, where there was much stronger support for property taxes, and where rates were already higher than the rates in rural areas. (Id.) Blacks in the cities were better organized politically and were more capable of making their influence felt in the Legislature. (Id.) According to Dr. Norrell, “there’s no question but that the Sam Engelhardts and the Walter Givhans and the George Wal-laces of the world knew exactly that Reynolds v. Sivi[]s and the subsequent reapportionment decisions that followed from that were going to change the nature of the Alabama Legislature to bring African-American representation into that body.” (May 4, 2004, Tr. at 108.) 68. Indeed, when he addressed the Regular Session of the Legislature on May 4, 1971, George Wallace expressly linked opposition to tax increases with opposition to federal intervention in affairs of the state: Education is still the primary function of State Government, and I believe under existing revenues we can have a teacher salary increase, a better free textbook program, a better retirement program which has already been introduced. Other legislation along this line will be introduced, because I am proud of the fact that during the time I was Governor the first time, a breakthrough in education came. The largest increases at any time because of our interest. But I am frank to tell you, and to tell educators, that the people of Alabama are simply turned off on education and some educators because of what the Federal Courts and HEW have done to their children from Huntsville to Mobile. Every one of you know I am telling you the truth when I tell you that. (Pis.’ Request for Admissions ¶ 129.) Additionally, white hostility toward court-ordered busing was at a peak in 1971, the year of Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), and Davis v. Board of School Comm’rs of Mobile County, 402 U.S. 33, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971). (May 4, 2004, Tr. at 109-10.) 69. The Weissinger decision came down on June 29, 1971, and the Regular Session adjourned without passing either a General Fund or an Education Fund budget. (Pis.’ Request for Admissions ¶ 130.) The dissension caused by the issues of legislative redistricting and court-ordered ad valo-rem tax reform made constructive legislation during the closing days and hours impossible, thus necessitating additional special sessions. (Id.) An education budget finally was adopted in a second special session in November 1971. (Id. ¶ 131.) A third special session was called to respond to Weissinger. (Id.) A law was enacted requiring local county authorities to reappraise all property or have it done for them by the State Department of Revenue. Act No. 160, 1971 Ala. Acts (Third Special Sess.). (Pis.’ Request for Admissions ¶ 131.) 70. During that third special session of 1971, the Legislature also passed a bill proposing what became Amendment 325 of the 1901 Constitution. (Pis.’ Request for Admissions ¶ 132.) This first Lid Bill was ratified by the voters on June 8, 1972. (Id.) Amendment 325 established for the first time separate classes of property for taxation purposes. (Id. ¶ 133.) 71. Governor George Wallace expressly linked the federal court’s Weissinger order to federally court-ordered reapportionment of the Legislature and busing for school desegregation: Wallace, in the Fall, August, of ’71, threatens to close some schools. This gave him a very powerful issue looking toward the 1972 presidential election, and in that context, when he called for a series of special sessions of the legislature to deal with, he said, reapportionment — they had to act on reapportionment at this exact same time — he called for an anti-busing piece of legislation, which was passed and of course was declared unconstitutional. The same night he called for that, he calls for a lid bill to cap property taxes in Alabama in the context of burgeoning private schools and massive exit from public schools in Alabama because of busing. He says, “we’re going — we’re going to cap property taxes, make sure that no federal judge” — now, he’s talking ... about his old colleague, college mate, law school mate, Frank Johnson, the man who ... during Lee versus Macon, the ... original desegregation case throughout Alabama, he’d said ... Judge Johnson, needed a barbed wire enema. Well, you know, that kind of baiting of federal judges, ... is applied then to Pointer in Birmingham, to Pittman in Mobile. It’s clearly the kind of racial code messages that Wallace has perfected already at this point he applies in Alabama in the fall of 1971 in calling for a shoring up of the caps on property tax which became the Lid Bill. (May 4, 2004, Tr. at 110.) Wallace “embraced the Alabama Farm Bureau Federation’s plan for a graded system. He said he didn’t want to get into the details. He just wanted to remind everybody that they shouldn’t have to pay any more taxes. This was ... a mandate of a federal judge or three federal judges, and people shouldn’t have to do it in the climate where ... these same judges are making their children ride hundreds of miles a day on buses.” (Id. at 115.) 72.The Chairman of the Senate Finance and Taxation Committee when the Amendment 325 bill passed was Walter Givhan of Dallas County, who was at that time head of the White Citizens Council. (May 4, 2004, Tr. at 102.) The result of Amendment 325 was to legalize the de facto classifications in effect when Weissinger was filed in 1969. (Pis.’ Request for Admissions ¶ 134.) The reappraisal period was stretched over seven years. (Id.) The “local option” Amendment 325 authorized counties to vary their assessment ratios and tax rates in a manner carefully constrained to maintaining the status quo. (Id. ¶ 135.) Bill Sellers, political commentator for the Mobile Press Register, explained: Various technical, legal or constitutional reasons were voiced for the opposition to local option, but some observers feel that the main objection stems from the fact that in a growing number of Alabama counties, blacks are gaining control of county governments. Senators representing some of these counties are considered fearful that the black political leaders, who also enjoy voting majorities, will exercise local options and set property taxes at the highest rates possible in order to raise additional funds for their governmental operations. These taxes will be paid by the property owners, considered by the senators to be white owners of large farms and corporate interests with large timberland holdings (Id. (quoting Mobile Press Register, Dec. 12,1971).) 73. The convergence in one year, 1971, of four federal mandates requiring re-enfranchisement of African-Americans, reapportionment of the Alabama Legislature, fair reassessment of all property subject to taxes, and school desegregation, had thus created a “perfect storm” that threatened the historical constitutional scheme whites had designed to shield their property from taxation by officials elected by black voters for the benefit of black students. (May 4, 2004, Tr. at 116.) 74. The provision in Amendment 325 giving the Legislature authority to vary the assessment ratios from county to county, and the laws enacted pursuant to it, Ala.Code § 40-8-1 (1975), were challenged on non-racial equal protection grounds in a separate federal lawsuit filed in Mobile. (Pis.’ Request for Admissions ¶ 136.) On April 21, 1978, Judge Hand ruled that the statutory variations of assessment ratios among the counties violated the Equal Protection Clause of the Fourteenth Amendment. McCarthy v. Jones, 449 F.Supp. 480, 484 (S.D.Ala.1978). Judge Hand declined, however, to strike down Amendment 325 in its entirety on the theory that it was possible that the Legislature could vary the assessment ratios among counties in a rational way that met equal protection standards. Id. at 485. 75. In the years between passage of Amendment 325 in 1971 and the Weissinger court’s 1979 deadline, Governor Wallace made an effort to break the statutory earmarking of the Special Education Trust Fund. May 4, 2004, Tr. at 118-20. He was opposed principally by the Alabama Education Association (“AEA”), which had merged with the all-black Alabama State Teachers’ Association (“ASTA”) and was viewed as a liberal, pro-black lobby. AEA was also one of the opponents of the Lid Bill. (Id.) As the statewide reassessment program drew to its conclusion and property assessments were going up, again, the Farm Bureau and industrial interests succeeded in getting the Legislature further to amend the state constitution to preserve the status quo of historically low property taxes. (Id. at 120.) In 1978, Governor George Wallace appealed to the legislature to approve new legislation designed to circumvent the effect of Weissinger v. Boswell by provi