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OPINION OUTLINE Introduction ......................... 1140 I. The Historical Development of the Dual System of Higher Education ........1140 A. University of Alabama ...............1140 Autherine Lucy ......................1141 Stand In Schoolhouse Door ..........U43 B. Auburn Polytechnic Institute .........H44 Harold Franklin Admission ...........1144 C. Alabama State Teacher’s College .....1145 D. Alabama A&M College ...............1148 E. University of South Alabama ........1151 F. Alabama College ....................H51 G. Florence, Livingston, Jacksonville and Troy State Teachers Colleges ........1151 H. Actions of the State Board of Education 1152 II. Development In The Period 1965-75 ......1153 A. Lee v. Macon County, 267 F.2d 474 (M.D. Ala. 1967) ..................... 1153 B. University of Alabama at Huntsville .. 1154 C. Auburn University in Montgomery ... 1154 D. Athens State College ................1155 E. Troy State University at Montgomery 1156 F. Alabama Commission on Higher Education ...........................1156 III. The Land Grant Issue ...................1157 A. Alabama’s Reaction to the First Morrill Act ..........................1157 B. The Hatch Act in Alabama ..........1158 C. The Smith-Lever Act in Alabama .....1159 D. Components of Land Grant School ... 1160 IV. Vestiges of the Dual System of Higher Education ................................1161 A. University of Alabama System .......1161 1. University of Alabama (Tuscaloosa) 1161 2. University of Alabama (Birmingham)1161 3. University of Alabama (Huntsville) 1161 B. Auburn University ...................1164 1. Main Campus ....................1164 2. Auburn University at Montgomery 1165 C. Alabama State University ............1165 D. Alabama A&M University ............1166 E. University of South Alabama ........1167 F. University of Montevallo .............1167 G. University of North Alabama ........1167 H. Jacksonville State and Livingston Universities .........................1168 I. Troy State University ................1168 J. Athens State ........................1169 K. State Board of Education ............1169 L. Other Indicia of Vestiges ............1170 V. Special Defenses .........................1170 A. Asserted Lack of a System of Higher Education ....................1171 B. Effect of ASTA case ................1171 C. Asserted Lack of Standing and Failure to Exhaust ..................1172 Conclusion ....................................1173 MEMORANDUM OF OPINION CLEMON, District Judge. Introduction The merits of this case involve two issues: whether the State of Alabama operated a racially dual system of higher education, and, if so, whether the vestiges of the dual system have now been eliminated. In 1983, the United States initiated this action under 42 U.S.C. § 2000d, d-1, (“Title VI”) and the Fourteenth Amendment to the United States Constitution against the State of Alabama, its publicly supported institutions of higher learning and related agencies and officials. Two defendants, Alabama A & M University (“A & M”) and Alabama State University (“ASU”), were granted leave to realign themselves as plaintiffs. Since the issues in Knight v. James, 514 F.Supp. 567 (M.D.Ala.1981), are subsumed in this case, the certified class in Knight was permitted to intervene herein and to assert its claims under Title VI and 42 U.S.C. § 1983. After protracted, voluminous and often unnecessary discovery, the trial of the case commenced in, and consumed the month of July, 1985. Based on the evidence adduced at trial, and for the reasons which follow, the court concludes that the State of Alabama has indeed operated a dual system of higher education; that in certain respects, the dual system yet exists; and that in other respects, the “root and branches” of the dual system have not been eliminated. I. The Historical Development of the Dual System of Higher Education As of May 17, 1954 — the date of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) — the system of higher education in Alabama consisted of (1) the University of Alabama, (2) Auburn Polytechnic Institute, (3) Alabama State Teachers College, (4) Alabama A & M College, (5) Florence State Teachers College, (6) Jacksonville State Teachers College, (7) Livingston State Teachers College, (8) Troy State Teachers College and (9) Alabama College. By July 2, 1965 — the effective date of Title VI — the University of South Alabama had been added to the system. The historical development of each of these institutions shall be discussed in turn. University of Alabama The University of Alabama is the flagship institution of higher learning in the State of Alabama. In the 1819 statute granting statehood to the Alabama Territory, an entire township was reserved and appropriated to the state legislature “for the use of a seminary of learning.” The education article of the Alabama Constitution of 1819 provided that there shall be and remain a fund for the exclusive support of a State University, for the promotion of the arts, literature, and the sciences; and it shall be the duty of the General Assembly, as early as may be, to provide effectual means for the improvement and permanent security of the funds and endowments of such institution. A year later, the legislature enacted a statute providing “That a Seminary of Learning be and the same is hereby established, to be denominated The University of the State of Alabama.” The University was formally organized in Tuscaloosa in 1831. For the next 129 years, no other state-supported institution of higher learning carried the word “university” in its title. Until the Reconstruction period of Alabama history, the University of Alabama was the only state-supported institution of higher learning in the state. From its beginnings until 1956, the University of Alabama (“the University”) did not admit black students, pursuant to the ironclad custom and policy of the State of Alabama requiring segregation of the races in all spheres of life. To be sure, the constitutional article and statute creating the University never referred to segregation; but the University board of trustees, consisting, among others, of the governor and state superintendent of education, was evermindful of and obedient to that provision of the 1901 Constitution which recites: “separate schools shall be provided for white and colored children, and no child of either race shall be permitted to attend a school of the other race”. In September, 1952, two black graduates of a private black college, Autherine Lucy and Polly Ann Myers, applied for admission to pursue graduate study at the University. The board of trustees considered the applications on June 1, 1953; and it deferred action on the matter, ostensibly pending a decision by the Supreme Court in Brown. The board communicated its action to Arthur Shores, counsel for the applicants, along with the suggestion “that his clients could find courses in subjects desired by them at Tuskegee Institute and the Alabama State College at Montgomery.” Brown was decided on May 17,1954; and a year later, the University had not acted on the application. After a brief evidentiary hearing in the lawsuit, Lucy v. Adams, 134 F.Supp. 235 (N.D.Ala.1955), Judge Grooms of this Court found that although there was no written policy or rule excluding blacks from the University, there was a tacit policy to that effect; and he enjoined university officials from denying Lucy, Myers or other similarly situated blacks “the right to enroll in the University of Alabama and pursue courses of study, solely on account of their race or color.” The injunction was entered on July 1, 1955. The University appealed the case to the Court of Appeals and sought review by the Supreme Court; and on October 12, 1955, the United States Supreme Court denied review. Lucy v. Adams, 134 F.Supp. 235 (N.D.Ala.1955); aff'd 228 F.2d 619 (5th Cir.1955); cert. denied, 351 U.S. 931, 76 S.Ct. 790, 100 L.Ed. 1460 (1955). The University denied admission to Lucy and Myers in the fall semester of 1955, on the ground that their applications were tardy. Finally, on December 30, 1955, Judge Grooms ordered the university officials to admit Lucy for the second semester, commencing February 3, 1956. President Carmichael of the University summarized its sentiment: [T]he court case which was decided on December 25,1955, had been in litigation for three and a half years____ During that period the Board of Trustees sought through all legal means to maintain the historic tradition of segregation which they conscientiously believed to be in the best interests of all concerned. * * * Finally, when the last legal battle was decided adversely the trustees were faced with two alternatives, yielding to the court’s decree or defying the law. * * [The lawyer-members of the Board of Trustees] as well as other members felt they had no choice but to comply with the court’s decree. Accordingly, the Board voted to permit one of the litigants to enroll as a student in the University. Autherine Lucy did indeed enroll at the University. Despite the denial of dormitory space and dining hall privileges to her by the board of trustees, she attended the first three days of classes. On the third day, February 6, 1956, a mob assembled and attacked her. She was hit with an egg; but due to the intervention of campus patrolmen, she escaped serious injury. That night, the board of trustees met and voted to exclude Lucy from attending classes until further notice. This action was defended as a safety precaution under the police power of the university. By February 29, the trustees had not lifted their order of exclusion; and following a show cause hearing that day, Judge Grooms ordered that “the order of suspension or exclusion” be terminated by March 5, 1956. He nonetheless found that the university trustees and officials had neither been derelict in their duty nor defiant of the earlier injunction, but that their action “... was taken in a good faith attempt to so protect the plaintiff and others.” On the same day as Judge Grooms issued his order, the Board of Trustees met and unanimously adopted a resolution permanently expelling Autherine Lucy because of statements in her pleadings in which she expressed her belief that university officials had suspended her because of her color, and that they had conspired with others to violate the Court’s order requiring her admission. Judge Grooms held that the Board of Trustees had properly expelled Autherine Lucy. The University thus reverted to its all-white status; and remained so for another seven years. In early 1963, three black students, Vivian J. Malone, Sandy English, and Jimmy A. Hood applied for admission to the University’s main campus; two others, Marvin P. Carroll and Dave M. McGlathery, applied for admission to the University’s Huntsville Extension Center. Their applications were not timely processed. On May 16, 1963, this Court ordered the trustees to process the applications and to admit the applicants if they were qualified. The Board minutes reflect that The Board was faced with a choice between the admission of some of the applicants or the outright disobediance of the order of the Federal Court with consequent prison sentences and other severe penalties for the Dean of Admissions and any successor appointed for him, and everyone else officially connected with the University, which punishment would not prevent such admission. It has therefore directed the Dean of Admissions to notify two negro applicants who have been found qualified of their admission to the University, one at the Huntsville Center and one at Tuscaloosa for the sessions which begin June 10, 1963. The meeting at which this action was taken was called by Governor George C. Wallace and held at his office at the State Capitol in Montgomery. The Governor “wished his vote recorded against admission because of his position as the constitutional executive office [sic] of the State of Alabama responsible for the peace and tranquility of the State.” United States Exhibit (“USX”) 9c. Thereafter, in an effort to prevent the federal court-ordered desegregation of the University, Governor Wallace publicly announced that he would “stand in the schoolhouse door” when the black students presented themselves for admission. On June 10, 1963, United States President John F. Kennedy sent the following telegram to Governor Wallace: I am gratified by the dedication to law and order expressed in your telegram informing me of your use of National Guardsmen at the University of Alabama. The only announced threat to orderly compliance with the law, however, is your plan to bar physically the admission of Negro students in defiance of the order of the Alabama federal district court and in violation of accepted standards of public conduct. State, city, and university officials have reported that, if you were to stay away from the campus, thus fulfilling your legal duty, there is little danger of any disorder being incited which the local town and campus authorities could not adequately handle. This would make unnecessary the outside intervention of any troops, either state or federal. I therefore urgently ask you to consider the consequences to your state and its fine university if you persist in setting an example of defiant conduct, and urge you instead to leave those matters in the courts of law where they belong. AMX 14B. The Alabama National Guard was federalized by the President shortly thereafter. On the following day, when Vivian Malone and Jimmy Hood (escorted by United States Marshals) approached the Administration Building, they were met by Governor Wallace at the entrance. He was allowed to read a short statement; and the federalized Commander of the Alabama National Guard then asked the Governor to step aside. The Governor accommodated the request. In the words of Governor Wallace: “At 3:33 P.M. (cst) June 11, 1963, through the use of Federal Troops [President Kennedy] assumed full responsibility for the presence of Negro students...” AMX 14E. Three days later, the President wired the Governor: Regretfully, it was necessary to send troops to Tuscaloosa to enforce the courts orders. Maintenance of law and order, however, remains your legal and moral responsibility. I know you were opposed to the admission of the Negro students, but that is now passed. They are attending the university, and I would like to withdraw the troops as soon as possible. AMX 14A. Governor Wallace’s June 17, 1963 response to the President reads: I can and will guarantee that there will be no sustained violence in Alabama, but with our limited resources, physical and financial, Alabama cannot insure absolutely the personal safety of individual students. Surely you realize that a continuous cause of the tension in Alabama is the presence of the three Negro students on the campuses of the University, and I suggest that you immediately secure their withdrawal. s(c ‡ $ >fc >jc ‡ You have created the situation existing in Tuscaloosa, Alabama. You must assume the responsibility. You cannot usurp the powers reserved to the State of Alabama and then place the burdens thereby created on my shoulders. AMX 14H. The evidence does not disclose the date on which the federal troops were removed. On June 12, 1963, Governor Wallace reminded President Rose of the University that on the preceding afternoon, “President Kennedy with the use of armed Federal troops assumed control of the campus of the University of Alabama which includes the campus at Huntsville.” In view of this “illegal and unwarranted military occupation,” the Governor decided that he would not “stand in the door” of the Huntsville campus when Dave McGlathery presented himself. He promised that “we will continue relentlessly our fight against forced integration of the University of Alabama.” AMX 14B. The record evidence does not pinpoint the date on which the fight ended; but by 1965, there were 31 black students enrolled at the University of Alabama. Two years later, that number had increased to 119 blacks out of a total student population of 12,251. Auburn Polytechnic Institute Auburn University’s roots extend to the East Alabama Male College, a denominational school which was started in 1859. Closed during the Civil War, the school reopened in 1866. In 1872, the Methodist Church offered the school to the state; the state legislature accepted it and named the school, “the Agricultural and Mechanical College of Alabama.” It was designated as the land grant college of Alabama under the terms of the 1862 Morrill Act. The 1875 and 1901 Constitutions of Alabama expressly recognized the status of the school. Women were admitted in 1892; and in 1899, the name was changed to the Auburn Polytechnic Institute. In 1960, the name was again changed, this time to Auburn University (“Auburn”). From its inception until 1963, Auburn did not admit black students. In 1962, Harold A. Franklin, a black graduate of Alabama State University, applied for admission to the graduate school of Auburn University. He was denied admission by the Dean of Auburn’s graduate school on the stated ground that Franklin’s undergraduate degree was awarded by an unaccredited institution. In Franklin v. Parker, 223 F.Supp. 724 (M.D.Ala.1963), Judge Frank Johnson ordered Auburn to admit Franklin and ... other qualified Negro applicants to the Auburn University Graduate School, without regard to any statute, policy, practice, custom and usage which may be contrary to the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Id. at 728. Governor Wallace, as chairman of the Auburn Board of Trustees, then intervened and, through his effort, Auburn University refused to grant dormitory space to Franklin, although the space admittedly was available. AMX 12A. Judge Johnson ordered Auburn to provide the dormitory space forthwith. Franklin was accordingly admitted to Auburn University on January 2, 1964. Resistance to the desegregation at Auburn in the early sixties was spearheaded by the chairman of its board of trustees, the Governor. Dr. Ralph Draughon, President of Auburn, did not always agree with the Governor’s tactics. When Draughon wrote to the Governor protesting the action of State Troopers in barring federal agents from the campus during the Franklin admission, the Governor responded: Of course, you and I were never in agreement relative to the proposition of integration at Auburn. As you will remember, it was your suggestion that Auburn voluntarily admit a Negro student. This never did and never will receive my approval. I will say that it is difficult for me to understand the lack of cooperation at Auburn University in that through my efforts the University now has its largest appropriation in the history of the State. My efforts in behalf of Auburn University have apparently had no effect on your attitude. AMX 12B, p. 3. The Board of Trustees named a new president in the following year. The new president was the first to sign a statement endorsing the Governor’s opposition to the 1966 HEW Guidelines for school desegregation; and when the three-judge court handed down its decision in Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967), the president of Auburn was again the first to sign a petition urging the Governor and the State Attorney General to request a stay of the judgment pending an appeal of the decision to the United States Supreme Court. AMX 18, 20. Auburn was not a party in Lee v. Macon, and it had no legally cognizable interest in the case. Of course, these public positions of Auburn’s president on matters of school desegregation did nothing to dispel the image of Auburn as an institution more concerned with preserving segregation than opening its doors to black students. By 1970-71, there were only 71 (.6%) blacks among the 1,484 undergraduates enrolled at Auburn; there were 10 black graduate students out of a total of 662. Alabama State Teachers College The institution now known as Alabama State University had its origins in Marion, Alabama. In 1867, Jabez L.M. Curry, ex-confederate officer and former president of Howard College of Marion, organized a mass meeting of blacks in Selma, Alabama, for the purpose of setting up a school for blacks. As a result of this meeting, a black school was set up at Marion in that year, with the assistance and financial support of the Conservative Party. In July of the following year, the Alabama Board of Education made an appropriation to the Marion Normal School from the black share of the common school fund. In November, 1871, Peyton Finley, the black member of the State Board of Education, introduced two bills to the board. The bills provided for the creation of four schools for black teachers, and an equal number for white teachers. The bills were passed a month later; and $4,750 was divided among the black normal schools at Montgomery, Sparta, Marion and Huntsville. In 1872, the normal school at Montgomery was not funded; but the appropriation for the school at Marion was made permanent. Peyton Finley was “a strenuous advocate of the establishment of a University for Negroes in the State, to do for the Negro what the University of Alabama purported to do for white persons.” Bond, 107. At the first session of the Board of Education which he attended as a member, he presented a resolution urging the creation of a black university and petitioning Congress “for a grant of public lands in aid of such a University.” .Nothing ever came of this resolution. Later in the year (1871), Peyton introduced a similar bill; but a substitute amendment was adopted which doubled the appropriation for the school at Marion, in lieu of making it a university. Finally, in the latter part of 1873, a bill to establish a “State Normal School and University” was passed by the State Board of Education. Lincoln Normal School, which had been operated by the American Missionary Society since 1866, was donated to the State for use as the campus of the new university; and a board of directors, consisting of the state superintendent of education and five black citizens, was the governing body of the university. In 1874, there were one hundred black students enrolled at “normal University.” Its appropriation of $2,000 (compared with the $2,400 yearly income of the University of Alabama) was doubled the following year. The school had three white faculty members; and the newly elected Democratic school superintendent wrote: The normal school at Marion is designed to become a University for the colored race in the State; and it is not doubted that its facilities for furnishing the higher education to this race will be amplified as the demand therefor becomes apparent. Bond, 110. In 1878, William Burns Paterson was elected president of the State Normal School and University at Marion. Of Scottish birth, he had come to the United States as an immigrant eleven years earlier. He worked at odd jobs from New York to Hale County, Alabama, in which he settled in 1870. Over the opposition of local whites to a white person teaching black people, Paterson set up the Tullibody Academy in Greensboro for the education of black freedmen. Tullibody Academy was so well-respected seven years later that Burns was chosen to head the State Normal School and University, also known as Lincoln Normal University. The first curriculum at the Marion school was classical only. Between 1880 and 1885, the school developed a carpentry course for the male students. By 1885, Lincoln Normal University consisted of a main building, a small dormitory, and the president’s residence. There were 10 faculty members — the only black being the head of the Industrial Department. Its enrollment in that year slightly exceeded 300; it had 17 in the graduating class. In each of the next two years, pivotal events charted the course of the school. In December 1886, a riot ensued after several white cadets at Howard College (also located in Marion) shoved a Lincoln student off the sidewalk as they walked abreast. In apparent retaliation, the main building at Lincoln School was destroyed by arson; and the Marion city fathers demanded of the legislature that the school be either closed or moved to another city. The legislature responded by appointing a committee, chaired by the Governor, to determine an appropriate place for the relocation of the school. Montgomery, Selma and Birmingham were considered; but the advocacy of the Montgomery Advertiser resulted in the decision to relocate the school in Montgomery in 1887. On February 27, 1887, the legislature enacted a bill “to establish the Alabama University of Colored People, and to provide for its support and maintenance.” The Alabama Supreme Court described the legislation: It establishes a University, with the implied privileges and powers appertaining to such institutions of higher learning, and as contradistinguished from high schools, and even colleges. It is not subject to the supervision of the Superintendent of Education, in whom the constitution vests the supervision of the public schools. It provides for the appointment of trustees, who are empowered to elect a faculty, and such officers and agents as they deem necessary; to discharge any member of the faculty, or officer or agent, at their pleasure; to prescribe their duties, and fix their compensation; and generally, to govern and control the faculty and the University, “so that the students therein may be taught in the best manner possible the things they are to live by, preferring always the English language and the industries, to an education for culture only.” Elsberry v. State, 83 Ala. 614, 619, 3 So. 804 (1887). Upon the creation of Alabama Colored Peoples University at Montgomery, President Paterson secured the assistance of local black leaders; and on October 3,1887, the university opened in the basement of Beulah Baptist Church with ten teachers and about 400 students. A few months after the opening of the University, in February, 1888, the Alabama Supreme Court held in Elsberry that the act creating the university was unconstitutional, on the ground that the $7,500 annual appropriation for the university was to be taken from the school funds earmarked for the colored race. The Court reasoned that the school funds apportioned between the races must be appropriated for public schools; and that the Alabama Colored Peoples University was not a public school. Alabama Colored Peoples University therefore received no state funding for the 1888-89 school year. On February 23, 1889, the Legislature reacted to the Elsberry decision by creating a State Normal School for Colored Students to be located in Montgomery with an annual appropriation from the colored school fund of $7,500. The State Board of Education was assigned the responsibility of operating the school. Three months later, the black community in Montgomery donated $3,300 in cash and 6V2 acres of land to the normal school. The school moved into its new quarters shortly after the beginning of the 1889-90 school term. From the turn of the century until the forties, the State Normal School for colored students fared better at the hands of the State Board of Education and the State Legislature than the Agricultural and Mechanical College for Negroes. By 1902, 56% of the 229 graduates of the State Normal School for blacks were teachers; only 25% of the 736 A & M graduates were teachers. Between 1920 and 1929, all of the normal schools in Alabama operated under a two-year curriculum. In 1929, the normal schools became teachers’ colleges with four-year courses of study; from that year until 1969, the black teachers college in Montgomery was known as “Alabama State Teachers College.” In January, 1949, Governor James E. Folsom appointed a “Committee on Higher Education for Negroes in Alabama.” The Committee consisted of 35 distinguished citizens of Alabama, including the presidents of the black state-supported institutions, the State Superintendent of Education, and a Richard T. Rives of Montgomery, who was subsequently appointed to the United States Court of Appeals for the Fifth Circuit. In its final report, the Committee recommended that Alabama State College for Negroes “be developed as the State’s University for Negroes,” and that a law school for Negroes be established there. It further recommended that Alabama State be appropriated $695,000 annually (including funds for the law school and expansion of undergraduate and graduate curricula); and that $2,465,000 be appropriated to the college for capital outlay. These recommendations were never acted on by the legislature. By the fifties, Alabama State College was offering the master’s degree in education. Its undergraduate degree fields included secretarial science and music education. The curriculum had been broadened “to give preparatory college training for further study in medicine, law, theology, social work, library science, dentistry and nursing.” Alabama State was not accredited by the regional accrediting agency, the Southern Association of Secondary Schools and Colleges, until 1966; and its name was changed to Alabama State University in 1969. It remained under the control of the State Board of Education until 1975. Pursuant to the policy of its governing board, Alabama State could not admit white students until 1967; its first white student enrolled in the following year. Alabama A & M College William Hooper Councill was the single most important force in the origin and development of what was later to become Alabama A & M University. He was born into slavery; and by the time of emancipation, his family lived in Jackson County, Alabama. Largely self-taught, he moved to Huntsville in 1869 and opened a rural school for blacks about four miles west of Huntsville. In Huntsville, Councill became active in Reconstruction politics and was elected to the position of reading clerk in the Alabama Legislature, where he served from 1872-74. He was admitted to practice law in Alabama in 1883. Two years after the State Board of Education enacted Peyton Finley’s bill creating segregated normal schools, the Huntsville Normal School was established, with an annual appropriation of $1,000. In 1875, the school formally opened with Councill as its principal, and 61 students. For the next seven years, the classes were conducted in rented houses in Huntsville. By 1882, the enrollment at the normal school had grown to 200; and the annual state appropriation had grown to $2,000. A $3,000 parcel of property had been purchased, and the two-story building on it had been remodeled for use as a school building. With $1,000 donated to the school by the Slater Fund, Councill inauguated an industrial department of the normal school by 1885. Fifty-five students were receiving industrial training in carpentry, painting, printing, sewing, and horticulture. In the same year, the Legislature doubled the appropriation to the school; and its name was formally changed to “Huntsville State Colored Normal and Industrial School.” Councill and the students of the Huntsville Normal and Industrial School were involved in separate racial incidents in 1887. While riding on a first-class railroad car from Tennessee to Atlanta in the summer of 1887, Councill was roughly evicted from the first class section. He filed a complaint with the newly created Interstate Commerce Commission, which ruled that Councill had not been treated equally and directed the railroad to provide equal service for blacks in the future. This incident caused no real problem with whites in Alabama. During the same summer, however, several of the students of Huntsville Normal innocently entered the first-class railcar on the train from Huntsville to Decatur. The porter and conductor strongly protested; and, upon learning of the incident, the resulting hue and cry from local whites was so great that Councill tendered his resignation as principal. The resignation was promptly accepted by the all-white commissioners of the school, and they appointed a new principal. There followed such a groundswell of moral and financial support for Councill from within and outside the state that the commissioners were persuaded to reinstate Councill as principal of the school in 1888. He remained in this position until his death in 1909. Congress enacted the Second Morrill Act in 1890, after it became clear that the Southern states had denied black citizens the right to attend the First Morrill Act land grant colleges. The Alabama Legislature set up a commission to determine which of Alabama’s three black state-supported normal schools would be designated as the black land grant school. Tuskegee Institute had the decided advantages: it had more buildings, more students, and the support of both of Alabama’s senators. These considerations were not enough to overcome the legislature’s reaction to a speech of Booker T. Washington delivered in Montgomery ten days before the decision was to be made. In that speech, Washington attacked as unfair to blacks the School Fund Apportionment Law enacted by the legislature earlier that year; and, to the further consternation of the legislature, he challenged the practice of providing separate railroad cars for blacks. Councill, with the assistance of the ex-Confederate officers on his board, then successfully urged the Legislature not to grant the funds to a black school headed by a white man (i.e., Alabama State Normal School for colored students at Montgomery). Washington’s speech having rendered Tuskegee ineligible, and President Paterson’s color having disqualified Alabama State Normal School in Montgomery on February 13, 1891, the Huntsville State Normal School was designated by the legislature as the land grant school for blacks in Alabama. After it had been designated as the black land grant school in Alabama, the commissioners of the Huntsville Normal School sold the campus in the City of Huntsville and moved the school to a new location four miles north of the city. This new site, at Normal, Alabama, had once been a plantation, race course, and an inn. It had several buildings which were used by the new school as faculty homes, offices, and shops. Palmer Hall, Seay Hall, a barn and a dairy were all constructed between March and August of 1891; and on September 1; the school opened at the new location. Between 1893 and 1896, Councill became convinced that it would be impossible for blacks to attain full equality in the United States; and in his writings and speeches, he urged a gradual migration of blacks to Africa. This philosophy caused his school to lose both black and white support. Five years after having designated the Huntsville Normal School as the state land grant school for blacks, the Legislature decided to establish two “agricultural experiment stations for the colored race and to make appropriations therefor.” One of these was established at the Alabama State Normal School for colored students at Montgomery, to be operated by “its present board of trustees.” The other was established at Tuskegee Normal and Industrial Institute; to be operated by a “board of control” consisting of the state commissioner of agriculture, the president of Auburn Polytechnic Institute, and the members of the Board of Trustees of Tuskegee Institute “who reside in the town of Tuskegee, Alabama.” The 1896 decision to exclude the Huntsville Normal School from state-supported agricultural research was the beginning of nearly three-quarters of a century of rather blatant discrimination by the legislature and the State Board of Education against the black land grant school. In the same year, the Legislature changed the name of the school to the “Agricultural and Mechanical College for Negroes,” and gave it the power to confer degrees. From its inception until the summer of 1920, the governing board of A & M was a three-member board of commissioners, with the governor and the state superintendent of education as ex-officio members of the board. The 1894-95 catalog of the institution reflects that [t]he three Trustees or Commissioners representing the State of Alabama are all men of superior character, education, and wealth. All of them were slave-holders, and commissioned officers in the Confederate army. State of Alabama Exhibit (“SX”) 139, p. 17. In 1920, the school was placed under the authority of the State Board of Education, where it remained until 1975. Upon the death of Councill in 1909, his son-in-law, Walter S. Buchanan, was appointed to succeed him. The Smith Lever Act, providing funds for agricultural extension work, was enacted by Congress on May 8,1914. At that time, A & M’s School of Agriculture was already engaged in extension work, and had been so involved since the 1890’s. The 1913 catalog described this work: The agricultural extension work is intended to reach and help the large mass of farm workers among our people who cannot attend school. The following lines of extension work have been conducted during the past year and arrangements are being made to enlarge the work another year:— 1. Farmers’ Institute for the adult farmers. 2. Boy’s Corn clubs for the boys from nine to eighteen years of age. 3. Girls’ Tomato clubs for girls from nine to eighteen years of age. 4. School Farm clubs for the purpose of extending the school term and improving the condition of the school. AMX 38, pp. 23-24. In 1905-06, there were over 160 students enrolled in the four year college and normal departments of A & M. In 1913-14, there were only 36 students enrolled in the “Teachers’ College” of A & M. There were 27 such students in 1914-15. During the same period, over 100 of the A & M students were enrolled in agriculture courses. Nonetheless, A & M was not designated a co-recipient of Smith Lever funds. After losing in these efforts, A & M’s financial condition progressively deteriorated. Its annual $4,000 state appropriation — lower than of any other state institution — was not increased by the legislature until the school was placed under the control of the State Board of Education. In fact, in 1918, the legislature appropriated only $1,000 to A & M. A & M did not fare well under the state board of education. In the same year as it came under board of education control, it was reduced to a two-year curriculum— with emphasis on agricultural and industrial education. It did not resume its status as a four year school until 1939; while all the “Class A” schools and Alabama State reverted to four year teacher’s colleges ten years earlier. When the legislature established a graduate school in agriculture for blacks in 1945, it was placed at Tuskegee, rather than A & M. A total of $300,000 was appropriated for the establishment of this school; and a line-item appropriation of $100,000 was authorized. Four years later, the legislature authorized the state board to provide courses for blacks in areas such as chemistry, engineering, vocational agriculture, and “such other educational services which in the opinion of the Board of Education is in great enough demand to justify a contract.” SX 162. Instead of developing these courses at A & M, the Board of Education contracted with Tuskegee Institute for these courses. By 1943, there were 562 students at A & M. Fifty-four of these were in agriculture, 118 were enrolled in mechanic arts, and 231 were in home economics. Further, several classes were taught for out-of-school rural youth in farm machinery repair, blacksmithing, wood working, and general farm production and conservation. A Farmers’ Conference was held in February 1943, bringing to the campus more than 300 farm men and women. * * [T]he extension division served 179 off-campus workers. SX 168. In 1948, A & M’s name was changed to “Alabama Agricultural and Mechanical College.” In 1969, the board of education gave it its present name. It was accreditated by the Southern Association of Secondary Schools and Colleges in 1963. Until the 1967 injunction in Lee v. Macon, A & M did not admit white students. University of South Alabama Beginning in 1942, the University of Alabama offered extension courses to whites in Mobile — the second largest city in the state. At that time, and until 1963, there was no other state-supported four-year institution serving whites in the Mobile area. By 1963, the University’s Mobile Center accommodated some 1,500 part time students. The University of South Alabama (“USA”) was created by the legislature in 1963. Upon its creation, the director of the University Mobile Center became its new president, and upon the request of the board of trustees of USA, the University Mobile Center ceased operations in 1964. When USA commenced operations in 1964 and for the next three years, its doors were not open to blacks, pursuant to state custom and practice which had the force of law. Alabama College The University of Montevallo had its origins in an 1893 legislative act which established “an industrial school for the education of white girls in Alabama.” In 1895, Montevallo was chosen as the site for the new school. The name became “Alabama College” sometime thereafter. Men were first admitted to the college in 1956, when the legislature designated Alabama College as the state’s college of liberal arts. In 1969, the Board of Trustees changed the name to the University of Montevallo. As of 1965, the school was still operated for whites only, under the established custom and policy of the State. Florence, Jacksonville, Livingston and Troy State Teachers Colleges Florence, Livingston, Jacksonville, and Troy State Teachers Colleges were the result of Peyton Finley’s efforts to establish normal schools. In December, 1871, the State Board of Education enacted a law establishing “a normal school at Florence, Alabama, for the education of white male teachers.” The opening of the school was made possible by an 1873 deed to the state of the grounds and buildings of Florence Wesleyan University. The new normal school was appropriated “... at least five thousand dollars of the general educational fund of the State apportioned to the whites.” In its 1873 amendment to the act establishing Florence Normal, the board indicated that the school would provide for the education of white female, as well as male teachers. In 1883, the state legislature established a normal school for “white female teachers” at Livingston, Alabama, and another for white “male and female teachers” at Jacksonville, Alabama. Both schools were initially operated by a board of directors. In 1887, the legislature “permanently established in the City of Troy, Pike County, ... a school for the education of white male and female teachers____” A board of directors for the “State Normal School at Troy” consisted of nine trustees and the state superintendent of education. The state board of education subsequently took control of the school, and operated it as one of the four “Class A Normal schools.” By the turn of the century, each of these normal schools, as well as Alabama State Normal School for Negroes, had been placed under the control of the Board of Education. The four white normal schools were designated, “Class A Normal Schools.” In 1920, the Board of Education reduced the' curricula of the Class A Normal Schools to two-years. Nine years later, the four-year curriculum was restored at the schools, and they were named “teachers colleges.” Historically, these white teachers colleges received considerably larger state appropriations from the Board of Education than the black colleges. The presidents of the white teachers colleges were consistently paid higher salaries than the president of ASU. Under the 1927 School Code, for example, the white normal schools were each appropriated $40,000 annually; the “State Normal School for colored teachers located at Montgomery” was appropriated exactly one-half of that amount. Florence State College did not admit black students until 1963, when Wendell W. Gunn was ordered admitted to the school by this Court. There is no credible evidence that any other black students were admitted to the school prior to 1967. Livingston University admitted its first black student on January 5, 1966. Not a single black had been admitted to the two other schools prior to the 1967 order in Lee v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967). The Board of Education had direct involvement in the day to day administration of the two black colleges under its control. In 1921, for example, the board limited the debt-incurring authority of the president of A & M to $50. As late as 1960, the Board of Education expelled black ASU students after they had participated in a sit-in. Dixon v. Alabama State Board of Education, 186 F.Supp. 945 (M.D.Ala.1960); rev’d, 294 F.2d 150 (5th Cir.1961). In discussing Alabama State’s lack of accreditation in 1963, Judge Johnson wrote: Thus, if there was a ‘weakness’ or graduate program ‘insufficiently supported’ by faculty and library or a ‘very confused situation in the general administration’ of the college, it was the responsibility of the State of Alabama, acting through its State Board of Education, to correct these matters instead of allowing these deficiences to continue. Franklin v. Parker, 223 F.Supp. 724 (M.D.Ala.1963). The Southern Association of Secondary Schools and Colleges did not admit black colleges to membership prior to 1956. In that year, Alabama State College was given probationary accreditation for five years. In 1961, accreditation was denied to both Alabama State College and A & M. All of the “Class A” schools were fully accredited. Id., at 725, 726. The Board of Education and the State of Alabama took various actions which had the effect of stymying the growth and development of both Alabama A & M and Alabama State College. Instead of setting up a School of Veterinary Medicine for blacks at the black land-grant school (since Auburn’s School of Veterinary Medicine was by statute “for whites”), Tuskegee Institute was chosen instead. Therefore the annual appropriation went to Tuskegee, rather than to A & M. For a number of years, the state superintendent of education contracted with Tuskegee' Institute to provide to black students “courses in engineering, veterinary medicine, and graduate courses offered in home economics and vocational agriculture;” and under this contract alone Tuskegee received $300,000 annually during the fifties. Obviously, these courses should have been developed at Alabama A & M, and the funds should have gone to that school. Rather than setting up a nursing school at Alabama State College or A & M, the state superintendent contracted with Tuskegee Institute to provide nursing education to blacks. Until 1966, where black residents of Alabama desired to take a course or program offered by either the University of Alabama or Auburn, but unavailable at A & M, Alabama State College, or Tuskegee, the state Board of Education funded the difference between the tuition and expenses at the University or Auburn and that of the college or university of their choice. As of 1965, blacks had never been appointed to the governing boards of any of the institutions of higher learning in the state or to the State Board of Education. Faculties and staffs were rigidly segregated. Alabama State was operated as the black counterpart to the University of Alabama; A & M was the black counterpart to Auburn. The black institutions were unequal, in every objective sense, to the white institutions of higher learning. The conclusion is inescapable that as of July 2, 1965, the State of Alabama continued to operate a racially separate and unequal system of higher education. II Development In The Period 1965-1975 In the 1965-1975 decade, six developments within the system of higher education impacted on its ability to disestablish its racial duality. The three-judge court handed down its decision in Lee v. Macon County; the University of Alabama at Huntsville (“UAH”), Auburn University at Montgomery (“AUM”) and Troy State University at Montgomery (“TSUM”) were established; Athens College became a part of the state system of higher education; and the Alabama Commission on Higher Education (“ACHE”) was established. On March 27, 1967, the three-judge panel in Lee v. Macon found that The State’s trade schools, vocational schools and state colleges: continue to be operatEd on a segregated basis. The operation of these systems is the immediate responsibility of the State Board of Education. ****** There is no necessity for setting out the facts in detail concerning the operation of these state colleges since the evidence conclusively establishes — the defendants do not controvert it — that these schools have been and continue to be operated as if Brown v. Board of Education were inapplicable in these areas. ****** It is quite clear that the defendants have abrogated, and openly continue to abrogate, their affirmative duty to effectuate the principles of Brown v. Board of Education, supra. Although the facts as herein outlined speak eloquently for themselves, there is no more clear an indication of this than Superintendent Meadows’ statement that he has done nothing to eliminate segregation in the public schools of Alabama. 267 F.Supp. at 474. The Court proceeded to order the Board of Education to admit blacks to the state colleges under its control, and to “... direct such ... state colleges to recruit, hire, and assign teachers so as to desegregate faculty and to accomplish some faculty desegregation in each such ... state college by September, 1967.” 267 F.Supp. at 484. Reaction was swift. Six years earlier, Governor Patterson had repeatedly urged the state legislature to remove the white colleges from the control of the board of education, so that desegregation efforts would be frustrated. At the session of the legislature following Lee v. Macon, the legislature wasted no time in enacting Governor Patterson’s proposal into law. Motivated by racial considerations, the white colleges thus received separate boards of trustees at the hands of the legislature, while Alabama State College and A & M remained under the control of the State Board of Education. The University of Alabama started offering extension courses in the Huntsville area in the 1950’s. The Army Ballistic Missile Agency was set up in Huntsville in 1956; and four years later, the Marshall Space Flight Center of the National Aeronautics and Space Administration (“NASA”) was likewise established there. With the resulting influx of scientists, engineers, and other technicians in the Huntsville area, in the late fifties and early sixties, there was a demand for a graduate program in engineering and the sciences. A & M College was located in Huntsville, but it was never seriously considered as a source for these courses because it was a black school; and under the law and firmly established custom of the State of Alabama, white students could not attend it and white teachers could not teach there. The University’s Huntsville Extension Center was the choice of the community, federal government officials and scientists; and as the community and federal government officials were well aware at the time, blacks could not attend the Extension Center. As found earlier, Dave McGlathery became the first black to attend the Huntsville Extension Center in 1963. He was admitted only under a court order and the “military occupation” by federal troops of the “campus of the University of Alabama, which includes the campus at Huntsville,” to enforce the order. In 1963, UAH started offering degree programs at the master’s level; and in the following year, undergraduate degree programs were offered. Doctoral programs in physics and engineering were first offered in 1971. As of September, 1967, UAH offered programs in four divisions: engineering, general studies, natural sciences and mathematics, and graduate studies. The undergraduate degree programs consisted of: Bachelor of Arts in english, history, and mathematics; Bachelor of Science in physics and Bachelor of Science in engineering, with specializations in electronics, mechanics and systems. Master’s degree graduate programs were offered as follows: Master of Science in physics; Master of Science in engineering. UAH offered no doctoral programs in 1967. The UAH campus is in northwest Huntsville, adjacent to Research Park. Its 13 buildings were all constructed since 1960, and they contain modern equipment and exemplify modern functional design. The UAH main campus consists of 337 acres; it has two modern buildings for medical education and patient health care in a separate, ten-acre medical campus. Both UAH and A & M are within the city limits of Huntsville. Prior to 1967, the University of Alabama operated an Extension Center in Montgomery. The Extension Center offered three years of college work, but it did not offer degree programs. Alabama State College was the only four-year, degree-granting, state-supported institution of higher learning in the county. In 1966, the all-white Montgomery Chamber of Commerce reactivated its dormant Education Committee in an effort to establish a four-year state-supported institution for whites in the Montgomery area. The Chamber of Commerce first approached the University of Alabama; it declined the invitation. Auburn University was next approached, and it agreed to un-. dertake the project. Governor Wallace and the local white elected officials all gave their wholehearted support for the project. Auburn made no independent study or investigation concerning the need or feasibility of a branch in Montgomery; it basically took the position that while it would do nothing to promote or secure a branch in Montgomery, it would operate a branch there if the legislature made an appropriation for such a branch and assigned it to Auburn. The Montgomery Chamber of Commerce never considered the utilization or expansion of Alabama State, although the school had existing programs in liberal arts, business and teaching education, and continuing education for adults. The reason is simple: at the time, the Governor and the legislature would not have supported a racially mixed institution of higher learning in Montgomery. At the very time that the Chamber negotiations with Auburn were being had, the Governor and the legislature were expressing their fury over the decision in Lee v. Macon, 267 F.Supp. 458 (M.D.Ala.1967), which had, among other things, required the desegregation of the senior colleges under the control of the State Board of Education. In an effort to thwart the decision, the legislature removed the white colleges from the control of the state board and placed them under separate boards of trustees. On the same day that Governor Wallace signed the bills creating separate boards of trustees for the white teacher colleges, he signed a bill providing tuition grants to students who chose not to attend desegregated public schools; and he also signed the bill creating AUM and appropriating $5 million for its construction and operation. Given the mood of the 1967 session of the legislature, it is apparent that it would not have considered the expansion of a black college so that it could serve white students. AUM is located roughly five miles from ASU in Montgomery. According to the Auburn catalog, AUM “... has developed rapidly, especially since moving to a new 500 acre campus ... in 1971.” Athens State College boasts that it “is both the oldest and the youngest institution of higher education in Alabama’s state educational system.” It was founded in 1822; and for more than a century, it was operated as a private college by the Methodist Church. In 1974, in the face of an insurmountable financial crisis, the United Methodist Church offered the college to the State of Alabama; and in 1975, over the objection of ACHE, the school was accepted by the State Board of Education subject to the appropriation of operating funds by the legislature. The legislature authorized Athens State to function as a senior college. It accepts transfers from the junior college community and technical colleges of the State, as well as transfers from the traditional four-year colleges and universities. In 1981, the legislature placed Athens State and John C. Calhoun State Community College under a single administration. In the words of the State Superintendent of Education, the two schools are “being operated under one administration now as more or less a single college.” The Court concludes that Calhoun Community and Athens College operate in tandem as a four-year college. The main campus of Calhoun Community College is located in Decatur, Morgan County, approximately ten miles from the main campus of Athens State in Limestone County. Athens State’s main campus is roughly twenty miles from the main campus of A & M; and Calhoun Community College’s main campus is even closer to A & M. Calhoun State Junior College was established post-Brown and its enrollment was limited to white students until the Lee v. Macon decision in 1967. In 1965, Troy State University (“TSU”) set up a branch in Montgomery. Under the policy of the State Board of Education, TSU’s Montgomery (“TSUM”) branch did not accept black students until forced to do so in Lee v. Macon. By 1976, 27% of TSUM’s 304 fulltime undergraduate students were blacks. TSUM offers programs at the graduate and undergraduate level. It operates only evening and weekend classes. TSU operates a nursing program in Montgomery. Since 1983, TSUM has been accredited independently of TSU. The programs offered by TSUM largely and unnecessarily duplicate similar courses at ASU. In 1975, ACHE observed and recommended The situation in Montgomery is further complicated by the presence of an expanding program offered by Troy State University..... In Montgomery, except for the nursing program at St. Margaret’s Hospital and the law enforcement program at the Montgomery Police Academy, Troy State University should restrict its offerings to Maxwell Air Force Base. Its programs should primarily serve the needs of the military. Non-military related civilian enrollment should be strictly limited. At neither the graduate nor undergraduate level should Troy State attempt to become a third general purpose institution in Montgomery serving the general civilian population. TSU’s Board of Trustees has obviously ignored the recommendation. In recognition of the need for a coordinated system of higher education, the Alabama legislature in 1969 created the Alabama Commission on Higher Education (“ACHE”). ACHE consists of twelve members, ten of whom are appointed by the governor (one from each congressional district, the others at large); and one each by the lieutenant governor and the speaker of the house of representatives. Members serve for nine-year terms, and their appointments must be confirmed by the state senate. ACHE serves in an advisory capacity to the legislature and the governor “... in respect to all matters pertaining to state funds for the operation and allocation of funds for capital improvements of state supported institutions of higher education.” § 16-5-2 Code of Alabama of 1975, as amended. ACHE is broadly charged with the duty of continuously analyzing and evaluating the present and future needs of higher education in Alabama, establishing statewide long-range planning, coordinating programs in instruction, research and public service, and submitting to the governor and the legislature annually “... a single unified budget report containing budget recommendations for separate appropriations to each of the institutions” in the state, system of higher educa