Full opinion text
TABLE OF CONTENTS INTRODUCTION.1045 STATEMENT OF THE CASE.1047 CONTENTIONS OF THE PARTIES.1051 A. Knight Plaintiffs.!.1051 B. The United States Government_'.1053 C. State Defendants.1055 D. Auburn University.1055 E. The University of Alabama System.1060 F The Troy State University System.1060 G. State Board of Education.1061 H. The University of North Alabama.1061 FINDINGS OF FACT GENERAL OVERVIEW OF HIGHER EDUCATION IN ALABAMA.1061 A. Enrollments. 1061 B. Federal Financial Assistance For Alabama’s Higher Education System 1065 SUMMARY OF THE HISTORICAL EVIDENCE. LÍ3 ZO O rH A. The Nineteenth Century. CO O t — H 1. The Antebellum Period. co CO O 2. The Reconstruction Period. tO iH 3. The Early Establishment of the Board of Trustees N Alabama and Auburn University.1072 i. Auburn University.1072 ii. The University of Alabama.1072 4. Blacks’ Early Efforts for Equality Through Education.1073 5. Blacks’ Early Efforts to Establish Colleges.1074 i. Alabama State University.1074 a. The State’s Nineteenth Century Promise of a University Education for Blacks at Alabama State University.1082 ii. Alabama Agricultural & Mechanical University.1084 6. Educational Access and Black Political Power: The End of the Nineteenth Century.1089 B. The Twentieth Century.1090 L Disenfranchisement's Impact on Black Education .1090 2. Black Higher Education and the Progressive Period.1091 3. The Period Between the World Wars .1095 4. Alabama’s Response to Federal Enforcement of Separate But Equal 1097 5. Massive Resistance to Integration.1103 i. The Legislature.1103 ii. The University of Alabama.1105 iii. Auburn University 1950-1965 . 1109 6. Four Year Teachers’ Colleges.1112 i. The Use of the ACT and Heightened Admissions Requirements 1112 a. University of Alabama.1113 b. Auburn University .1115 ii. Decentralizing Governance of the Traditionally White Teacher Colleges.1116 7. Importance of Alabama's HBU’s to the Civil Rights Movement.1117 8. The History of Branch Campus Development.1119 i. The University of Alabama at Huntsville.1119 a. Origin and Development.1119 b. Extension Center Movement.1119 c. Early Growth.1120 d. Federal Government Support.1121 ii. University of Alabama at Birmingham.1126 iii. Troy State University at Montgomery.1126 iv. Auburn University at Montgomery.1127 a. Origin and Development.1127 b. Early History .1128 c. The ASTA Decision.1130 d. AUM In the Present.1133 9. The History and Development of the Alabama Commission on Higher Education.1136 i. Origins.1136 ii. Statutory Responsibilities.1137 10. Creation of the ASU and AAMU Boards of Trustees.1139 C. History of the Early Land Grant System in Alabama.1140 1. The 1862 Morrill Act.1140 2. The 1890 Morrill Act.1145 3. The Hatch Act.1146 4. The Smith-Lever Act.1147 CURRENT ADMISSIONS STANDARDS.1153 A. The ACT Examination.1153 L Background of the ACT College Admission Test.1153 2. The ACT Test is Used to Examine Students’ Academic Preparation .. 1153 B. The Development of the ACT Test.1154 C. The ACT is not a Racially Discriminatory Examination.1155 D. The Use of the ACT by Colleges and Universities in Alabama.1156 L Admission Requirements for Regularly Admitted Freshmen..1156 i. The University of Alabama System. 1156 ii. Auburn University.1157 iii. Troy State University.1158 2.Alabama’s HBU’s Use of the ACT.1158 E. Non-traditional College Admissions..1159 L Conditional Admissions at the University of Alabama System.1159 i. University of Alabama at Huntsville.1159 ii. University of Alabama at Birmingham.1160 iii. University of Alabama at Tuscaloosa..1160 2. Conditional Admissions at Auburn University.1161 i. Main Campus.1161 ii. Auburn University at Montgomery.1161 3. Conditional Admissions at the Troy State University System ...1162 i. Main Campus .. 1162 ii. Troy State University at Montgomery.1162 4. Admission by Transfer.1162 i. University of Alabama System.1162 ii. Auburn University Main and Montgomery Campuses.1163 iii. Troy State University Main and Montgomery Campuses.1163 iv. Alabama A & M University.1163 v. Alabama State University.¡.1163 F. Impact of Regular Admission Criteria on' Blacks Applying tó HWUs 1163 G. Auburn University’s Admissions Requirements Have a Disproportionate Impact on Black Applicants.1165 LAND GRANT ISSUES.1167 A. The National Land Grant Model.1167 B. Alabama’s Land Grant System.1168 L Alabama’s Agricultural Experiment Station.1168 2.Alabama’s Cooperative Extension Service ...1169 C. AAMU’s Land Grant Expansion and Changing Appropriations.1170 D. Alabama’s Land Grant System is not Currently a Vestige of Discrimination .1171 RACIAL COMPOSITION OF FACULTY AND ADMINISTRATIVE POSITIONS 1172 A. Contentions and Defenses.1172 B. Auburn University.1173 L Black Faculty Recruitment.1173 2. Black Faculty Employment.1173 3. Black Administrative Employment...•.1174 C. Auburn University at Montgomery...1175 L Black Faculty Recruitment.1175 2. Black Faculty Employment.1175 3. Black Administrative Employment.1176 D. The University of Alabama System.1176 L University of Alabama Main Campus.1176 i. Black Faculty Recruitment.1176 ii. Black Faculty Employment.1177 iii. Black Administrative Employment. 1178 2. University of Alabama at Birmingham ...'.1178 i. Black Faculty Recruitment.1178 ii. Black Faculty Employment.1180 iii. Black Administrative Employment.1181 3. University of Alabama at Huntsville.....1181 i. Black Faculty Recruitment. 1181 ii. Black Faculty Employment.1182 iii. Black Administrative Employment.1183 E. Troy State University System.1183 1. Troy State University Main Campus.1183 2. Troy State University at Montgomery.1183 F. University of North Alabama.•..1184 G. Alabama State University.1184 H. Alabama A & M University...1184 I. Calhoun State Community College.1184 J. Athens State College.1185 K. Jacksonville State University.1185 L. Livingston University.1185 M. The University of Montevallo.1186 N. University of South Alabama .1186 O. Comparative Chart.1186 FACULTY AND ADMINISTRATIVE EMPLOYMENT.1187 A. The Appropriate Labor Pool for Faculty Positions .1188 B. Utilization of Faculty Recruitment Procedures.1190 L Auburn University .1190 2. Montevallo and Livingston Universities.1191 C. Administrative Employment.1191 BLACK FACULTY PROMOTION AND RETENTION.1192 THE ALABAMA COMMISSION ON HIGHER EDUCATION’S FUNDING FORMU-LAE .1192 A. The Components of ACHE’s Funding Formula.1192 B. Comparison of Alabama’s Funding Formula with other States’ Formu-lae .1200 C. Description of How ACHE’s 1990-1991 RAP Formula Works.1202 D. Comments on Alabama’s Funding Formula.1205 STATE FUNDING FOR HIGHER EDUCATION.1208 A. Background.1208 B. Importance of Funding to a University or College.1209 C. Historical Funding Patterns.1209 D. Historical Differences Cannot Be Made Up Overnight.1227 E. Headcount Funding 1941-1969.1232 F. Funding of Institutions per FTE.1234 G. Costs of Instructional Programs.1259 H. The “$4 Million" and Its Impact on the Funding Comparisons.1268 I. Current Method of Funding.1270 THE ADEQUACY OF CAMPUS FACILITIES ON THE HBU’S.1271 A. Facilities and Higher Education.1271 B. The Plaintiffs’ Allegations.1272 C. Capital Funding Process.1272 L State Funding Process.1272 2. Non-State Funding Process.1273 D. ACHE’s Capital Needs Recommendations.1273 E. Legislative Capital Outlay.1274 F. Institutional Autonomy Regarding Capital Development.1275 G. The Plaintiffs’ Evidence.1276 H. Comparison of Capital Funding at Selected Institutions.1276 L Facility Appearance at the Six Comparison Campuses.1278 2. The Era of Expanding Enrollments and State Support.1279 I The State Has Inadequately Funded the Capital Development of Its HBU’s.1281 STUDENT CHOICE: MAKING ENROLLMENT DECISIONS.1283 A. Student Choice In General.1283 B. ACT Scores and Student Choice.1284 C. Factors Other Than Academic Preparation Have An Influence On Student Choice.1286 STUDENT ENROLLMENT: THE RACIAL COMPOSITION OF ALABAMA’S COLLEGES AND UNIVERSITIES.1286 A. Contentions of the Parties .1286 B. Knight Plaintiffs’ Evidence.1287 C. The Defendants’ Enrollment Evidence.1288 L Auburn University .1288 2. Auburn University at Montgomery.1288 3. The University of Alabama System.1288 i. General Enrollment Data.1288 ii. Dr. George Borjas’ Testimony.1289 a. Borjas’ Conclusions Regarding Black Student Enrollment At UA.1289 b. Borjas’ Conclusions Regarding Black Student Enrollment At UAB.1289 c. Borjas’ Conclusions Regarding Black Student Enrollment At UAH.1289 4. Enrollment In the State’s HBU’s.1291 6. Troy State University and Troy State at Montgomery.1291 6. The University of North Alabama.7.'.■.1291 D. Student Enrollment and Plaintiffs’ Claim of Vestiges of Segregation 1291 UNDERGRADUATE STUDENT RECRUITMENT.1291 A. Auburn University Recruitment.1292 B. The University of Alabama System Recruitment.1298 L University of Alabama at Huntsville.1293 2. University of Alabama at Birmingham.1293 3. University of Alabama at Tuscaloosa?.1294 i. Minority recruitment efforts in the UA Admissions Office.1294 ii. Recruitment by UA Students .1295 iii. Minority recruitment efforts in the College of Engineering.1296 a. SECME and High School outreach efforts.1296 b. NAMERA.1296 c. Minority Engineering .program.1297 d. Scholarships to support minorities in Engineering.1297 e. Engineering student enrollment facts.1297 iv. UA’s BioPrep Program.!.1298 BLACK UNDERGRADUATE RETENTION RATES.1299 A. The University of Alabama System.1299 L UA’s Various Retention Programs .1299 2.Financial Aid at UA.....1300 B. Auburn University ....1301 C. Other Predominately White Colleges and Universities.1302 D. Retention and Graduation Rates at the HBU’s.1302 L Alabama A & M University...1302 2. Alabama State University. ..■.... 1302 GRADUATE AND PROFESSIONAL SCHOOL ADMISSION AND RECRUITMENT....1303 A. Knight Plaintiffs’ and Allied Defendants’ Allegations.1303 B. The University of Alabama System.1304 L Graduate and Professional School Enrollment.1304 2. Graduate and Professional School Recruitment.1304 3. Admissions Requirements....1306 C. Auburn University.... 1307 1. Graduate School Enrollment.! 1307 2. Graduate School Recruitment.1307 D. Auburn University at Montgomery.1307 INSTITUTIONAL CLASSIFICATION AND PROGRAM APPROVAL.1308 A. Introduction.1308 B. Classifying Institutions According to Role.1308 C. Instructional Role Matrices...1311 D. Program Approval.1312 ACADEMIC PROGRAM DUPLICATION.1313 A. Dr. Conrad’s Analysis.1313 B. Defendants’ Critique of Dr. Conrad’s Testimony.1316 C. Dr. Conrad’s Program Duplication Testimony is Unpersuasive.1317 D. The Court’s Analysis of the Program Duplication Claims.1319 L The University of Alabama at Huntsville.1321 i. Institutional Comparison between UAH and AAMU.1321 ii. Program Comparison.1322 a. Education.1322 b. Business.1324 2. Athens State College, Calhoun State Community College and Alabama A & M University.1328 i. Institutional Profile.1328 a. Calhoun State Community College. 1328 b. Athens State College.1328 ii. Program Comparison.1328 a. Calhoun State Community College .1328 b. Athens State College.1329 3. Alabama State University and Auburn University at Montgomery —1329 i. Institutional Comparison between ASU and AUM.1329 ii. Program Comparison.1330 4. Troy State University at Montgomery and Alabama State University 1331 E.ACHE and New Program Approval ..1331 THE RACIAL CLIMATE ON THE HWU’S...1331 MULTICULTURALISM AND THE UNIVERSITY.1332 THE BOARDS OF TRUSTEES.1333 A. Powers Given the Boards of Trustees...1333 B. Plaintiffs’ Allegations.1333 TRANSFERS OF ACADEMIC CREDIT BETWEEN JUNIOR AND SENIOR COLLEGES.1335 TECHNACENTER. 1336 ALABAMA’S SYSTEM OF HIGHER EDUCATION.1340 COOPERATIVE PROGRAMS BETWEEN THE PROXIMATE INSTITUTIONS .. 1341 A. Alabama State University and Auburn University at Montgomery— 1341 B. Troy State University at Montgomery and Alabama State University 1341 C. Alabama A & M University and the University of Alabama at HuntsvillelMl ' D. Alabama A & M University and Athens State College/Calhoun State Community College.1343 E. Extension of Previously Executed Consent Decrees.1343 REMEDIAL OBJECTIVES OF THE KNIGHT PLAINTIFFS.1343 A. Knight Plaintiffs’ Remedial Issues.1344 B. Knight Plaintiffs’ Proposed Remedial Decree.1348 CONCLUSIONS OF LAW THE MEANING OF “VESTIGES”.1352 THE CONSTITUTIONAL DUTY TO DESEGREGATE HIGHER EDUCATION.. 1353 A. The Parties’ Contentions. 1353 L Plaintiffs .■.1353 2. Defendants.1353 B. An Introduction to .the Court’s View of the Law.1354 C. The Scope of the Constitutional Duty to Desegregate.1354 D. The Constitution Requires Alabama To Eliminate Vestiges of Discrimination Root and Branch to the Extent Practicable...1356 E. Ayers v. Attain.1358 F. Student Choice and the “Root and Branch” Remedy.1359 G. ASTA.1360 THE EQUAL PROTECTION CLAUSE AND MIXED MOTIVE DECISIONS .... 1360 DUTY TO DESEGREGATE UNDER TITLE VI OF THE CIVIL RIGHTS ACT OF 196k.1361 A. Title VI and Its Regulatory Framework.1361 B. Program-Specific Proof For Title VI Enforcement and the Civil Rights Restoration Act.1363 THE DEFENSES OF RES JUDICATA AND COLLATERAL ESTOPPEL.1365 A. Res Judicata.■.1365 B. Collateral Estoppel.1366 C. Auburn’s Defense Is Of No Avail.1367 D. Lee v. Macon Does Not Prevent The Claims Against The SBE.1367 SUMMARY OF THE ACTIONABLE VESTIGES OF DISCRIMINATION SURVIVING IN ALABAMA.1368 THE ELEVENTH AMENDMENT AND THE COURT’S REMEDIAL POWERS.. 1368 A. Eleventh Amendment Jurisprudence.1368 B. The State’s Duty To Erradícate Vestiges Existing at the HBU’s Facilities 1370 THE CONSTITUTIONALITY OF ALABAMA CODE SECTION 16-50-20(a).1372 THE SCOPE OF THE COURT’S REMEDIAL POWER.1377 REMEDIAL DECREE.1377 HAROLD L. MURPHY, District Judge. ABBREVIATIONS The following abbreviations are used in the Findings of Fact and Conclusions of Law. Alabama A & M University; Alabama Commission on Higher Education; Alabama Public School and College Authority; Athens State College; Alabama State University; Auburn University; Auburn University at Montgomery; Calhoun State Community College; historically black university; historically white university; Jacksonville State University; Knight Plaintiffs; Livingston University; Alabama State Board of Education; State of Alabama Defendants; Troy State University; Troy State University at Montgomery; University of Alabama, Tuscaloosa campus; University of Alabama at Birmingham; University of Alabama at Huntsville; University of Alabama System; University of Montevallo; University of North Alabama; United States of America; University of South Alabama. UA UAB UAH UAS UM UNA US USoA AAMU ACHE APSCA ASC ASU AU AUM cscc HHW C/2 W ttí tti Record citations will be abbreviated as follows: Trial Transcripts — [Witness] (date) [page]; e.g., Jones (10/10/90) 13. Exhibits — [Party]X [no.], p. _; e.g., UASX 1000, p. 13. Party abbreviations will be same as above. Stipulations of fact — SOF 11 [number]; e.g., SOF II103. INTRODUCTION More than three hundred and fifty years ago, Africans were first brought to this country to be sold into slavery. Forbidden formal education, slaves served at the pleasure of their white masters and learned only the anguish of unrewarded toil. The “self-evident” truth contained within the Declaration Of Independence that all persons are created equal had no application to the slave. The slave was neither free nor equal. Commenting on whether the Framers of the Constitution considered slaves to be included within the phrase “We the People,” Chief Justice Taney, penned the following remarks in the Dred Scott case: We think they are not, ... [and] were not intended to be included.... They had for more than a century before been regarded as beings of an inferior order; and altogether unfit to associate with the white race ...; and so far inferior, that the negro might justly and lawfully be reduced to slavery for his benefit. [Accordingly, a negro of the African race was regarded ... as an article of property, and held, and bought and sold as such.... Scott v. Sandford, 60 U.S. (19 How.) 393, 405, 407-08, 15 L.Ed. 691 (1857) quoted by, Marshall, The Constitution’s Bicentennial: Commemorating the Wrong Document? 40 Vand.L.Rev. 1337, 1340 (1987). The emancipation of the African American as property was accomplished at the conclusion of the Civil War with the ratification of the Thirteenth Amendment to the United States Constitution. The prize of freedom was effectively denied however, by the enactment of the Black Codes whose intent was the continued subordination of the newly freed slave. One of the forms of subordination was the rigid control by whites of black education. Most whites wanted blacks educated, if at all, only to the minimum level necessary to provide semi-skilled labor. Black educational institutions were under the complete control of white officials who, for the most part, shared the paternalistic view that black subordination was a natural condition that worked for the betterment of both races. The history of black higher education in Alabama following the Civil War is not atypical. Strict white control was the hallmark of black higher education in the state until the 1970’s. For many years blacks were effectively denied the benefits of a collegiate education by the operation of two interrelated practices: the uncompromising segregation of the state’s white institutions and the limited educational mission assigned to the state’s black colleges. Concomitant to these two practices, there arose a host of policies and laws designed to institutionalize segregation while assuring the inferior status of black education. The case at bar is in large measure, about identifying and eliminating those segregative policies and practices which survived federally mandated integration. These surviving policies and practices, referred to as vestiges of the de jure period of segregation, must be abolished root and branch if the mandate of the Constitution is to be satisfied. The obligation of the Court is to ensure that a student is free to choose any institution of higher education in Alabama unencumbered by the segregative practices which arose during the period of de jure discrimination. As a related element, the Court must be certain that students who choose to attend the state’s predominately black institutions are not, as a result, stamped with the badge of inferiority resulting from the history of segregation. The Court can accomplish its obligation by ordering actions which will remove the aura of mediocrity and eliminate the stigma of segregation. The Court, at least in part, can do this by ensuring adequate facilities and funding, and where necessary by ensuring that academic programs at the state’s historically black institutions are not unnecessarily duplicated by proximately located predominately white institutions. The Court must also ensure that those African-American students who elect to attend one of the state’s predominately white institutions may do so without having to overcome barriers remaining from the dual system of higher education whose purpose was then the continuation of racial segregation and whose impact continues to be an impediment to full desegregation. The issue is not whether the state universities to which African Americans have traditionally turned for college education in Alabama have limited missions because of prior state-sponsored discrimination, undoubtedly they do; rather, the issue is how does that limitation affect students who choose to attend the state’s predominately black institutions. The desire to use this litigation as a means of securing for the state’s predominately black universities educational missions comparable in size and content to those of the state’s largest institutions is unavailing. This case is not about institutional enhancement. If one attends an institution which does not have a full panoply of graduate and professional programs it does not mean that the education received there is inferior. The Constitution does not teach that because a historically black institution has suffered discrimination that it is entitled to an elevated academic mission. The danger of creating parallel universities in mission, one predominately black the other predominately white, cuts too close to the doctrine repudiated by Brown v. Board of Education, when the only reason for so doing is the racial discrimination suffered by the historically black institution. The Court must guarantee that the educational system in Alabama is nondiscriminatory and integrated, not that any particular institution has a certain educational mission. Alabama has an extensive system of higher education. Many of the institutions within that system serve unique and vital roles. Alabama’s historically black universities have a long history of service to the state and country for which they and the state can justly be proud. Alabama State University and Alabama A & M University were on the cutting edge of the Civil Rights Movement of the 1950’s and 1960’s, and stood as beacons in the night, broadcasting the promise of the Constitution to millions of American citizens who were denied its protections. Today these universities continue to serve the state and its citizens in numerous ways. They provide an educational environment in which students of not only the highest academic caliber can study, but also those who have been educationally deprived. Well developed remedial programs provide the educationally disadvantaged students with the opportunity and training necessary to successfully complete a college curriculum. Likewise, many of the state’s predominately white schools also serve the nation and state well. The ignominious image of Governor George Wallace barring black enrollment at the University of Alabama is emblazoned on the American consciousness as a memorial to all that is wrong and pernicious with racial segregation. That image is, however, beginning to fade, not because of the passage of time, but because of the university’s affirmative efforts to deal positively with its segregative past. The university has made giant strides towards eliminating the. policies defended by Governor Wallace’s “stand in the school-house door” and is today, in many respects, on the fore of university race relations nationwide. Other universities and colleges in Alabama which have not been under the glare of national attention like the University of Alabama have not fared as well, and there yet remain certain actions which these institutions must take to assure that all citizens, regardless of race, may choose a college whose segregative practices have been eliminated. Finally, it must be noted, that great effort was exerted to move the parties towards a settlement in this action. The Court took the extraordinary step of holding a settlement conference during the middle of trial and ordered the attendance of the Governor, chief executive officer of each Defendant and representatives of the Plaintiffs. Unfortunately, the conference proved unsuccessful. Throughout the trial, the parties were reminded that the least desirable resolution of this action would be for the Court to develop a remedy. Many of the issues involved in this case essentially require political solutions. Alas, the failure of politics has left this matter with the Court. STATEMENT OF THE CASE This case commenced in 1978 when the Office of Civil Rights (“OCR”) of the United States Department of Health, Education and Welfare (now the Department of Education) began a Title VI compliance investigation of public higher education in Alabama (“the 1978 OCR investigation”). The OCR case control card for the 1978 investigation identified the recipient of federal financial assistance under investigation as the “State Department of Education (University System).” No investigation was undertaken to determine what types of federal financial assistance were received by particular institutions in Alabama. No determination was made that the State Department of Education was the “recipient” in that investigation. The procedure to be followed in the 1978 OCR investigation of public institutions of higher education in Alabama was set out in a memorandum from Cynthia Brown (“the Cynthia Brown memo”) to regional directors, including Regional Director William H. Thomas in the Atlanta Office of OCR, which had responsibility of the State of Alabama. The Cynthia Brown memo set out the procedures to be followed in examining certain subject areas, including student admissions, financial aid, counseling and tutoring, athletics, and program duplication. Public senior-level institutions of higher education in Alabama received letters from Louis 0. Bryson, an official with the OCR in Atlanta, identifying certain subjects on which OCR would like to focus during the “on-site” portion of the compliance review. In November, 1980, the “Higher Education Desegregation Working Group” was established in the Department of Education to issue letters of finding for Alabama and several other states by mid-January, 1981. The “Higher Education Desegregation Working Group” did not include any persons who had been involved in the 1978 OCR field investigations of public higher education in Alabama. The “Higher Education Desegregation Working Group” operated primarily on the basis of “briefing books” which summarized some of the information developed in the OCR 1978 investigation. The 1978 OCR investigation did not find discrimination in admissions policy nor did it identify a problem with respect to recruitment. The letter of findings ultimately issued January 7, 1981, was addressed to Governor Fob James, with copies to the presidents of several public institutions of higher education in the state. The letter from the Department of Education, notified the Governor and the various university and college presidents that vestiges of the former de jure system allegedly remained in Alabama’s public institutions of higher education in violation of Title VI. The state was directed to submit to the Government a plan to assure future compliance with Title VI. After months of unsuccessful negotiations between a representative of the governor and representatives of OCR, Assistant Secretary of Civil Rights for the Department of Education Clarence Thomas— now an Associate Justice on the United States Supreme Court — sent a “ten-day letter” to Governor James stating if within ten days Alabama did not submit a plan to eliminate the alleged vestiges of the dual system the matter would be referred to the Department of Justice for litigation. No plan was ever submitted. On January 15,1981, John F. Knight, Jr., and other alumni, students and faculty members of Alabama State University filed suit in the Middle District of Alabama attacking alleged vestiges of segregation in public higher education. Knight v. James, 514 F.Supp. 567 (M.D.Ala.1981), alleged that the desegregation of ASU was impeded by duplicative educational programming at AUM and TSUM, in violation of Title VI and the Fourteenth Amendment. On May 20, 1981, the District Court granted the motion of Governor James and ACHE to stay all further action in Knight v. James pending resolution of Title VI administrative proceedings between the State of Alabama and the U.S. Department of Education aimed at desegregating public higher education statewide. This stay was dissolved on April 6, 1982, when the District Court was informed that the Department of Education had referred the Title VI enforcement proceedings to the Department of Justice. On October 24, 1982, the Middle District certified a plaintiff class consisting of graduates of ASU and African American citizens of Alabama who were eligible for employment by or who attended or may attend public institutions of higher education in the Montgomery, Alabama area. On July 11, 1983, the Department of Justice filed the instant action in the Northern District of Alabama, alleging that the defendants were maintaining vestiges of de jure segregation throughout their system of public higher education. The District Court on April 18,1983, granted the motion of John F. Knight, et al., to intervene in US. v. Alabama, on the ground that its outcome would be determinative of the issues in Knight v. James. On January 3, 1984, the court certified the Knight inter-venors to represent essentially the same Montgomery-related class the Middle District had certified. The Middle District Court stayed all further proceedings in Knight v. James (by then, Knight v. Wallace) “until a final judgment or order is reached in United States v. Alabama_” Knight v. Wal- lace, CA No. 81-52-N (M.D.Ala., June 12, 1984). No trial was ever conducted in Knight v. Wallace, and on December 12, 1990, the court dismissed Knight v. Wallace (now Knight v. Hunt) without prejudice, in light of pending proceedings in the instant action. Immediately after the United States Attorney General filed this action in 1983, Alabama State and Alabama A & M universities separately moved for realignment as plaintiffs, or in the alternative, to file cross claims. The District Court granted both motions to realign and AAMU and ASU thereafter sought to leave to file amended complaints. The District Court granted the institutions’ request. AAMU asserted Title VI and Fourteenth Amendment claims against UAS, AU, and the state. ASU asserted similar claims against AU/AUM, TSU/TSUM, and the state. In September 1983 Auburn University and the State Superintendent of Education moved District Judge U.W. Clemon to disqualify himself. Judge Clemon denied the motions on two separate occasions. United States v. Alabama, 571 F.Supp. 958 (N.D.Ala.1983); United States v. Alabama, 574 F.Supp. 762 (N.D.Ala.1983). Auburn University then petitioned the court of appeals for a writ of mandamus. The Eleventh Circuit granted the writ in part and remanded the matter to the Northern District of Alabama with directions that another judge be assigned to hear the recusal motion. In re Auburn University, No. 83-7557 (11th Cir. Nov. 10, 1983). Senior District Judge Hobart Grooms was assigned the recusal proceedings. After taking evidence, Judge Grooms, on December 19, 1983, issued an order granting the motions to disqualify Judge Clemon. One month later, Judge Grooms on a motion for rehearing vacated his order and recused himself from any further proceedings. Senior Circuit Judge David Dyer then heard the Defendants’ disqualification motion and denied the same. United States v. Alabama, 582 F.Supp. 1197 (N.D.Ala.1984). The subsequent request to certify the issue for interlocutory appeal was denied. The case then proceeded to trial. The first trial of this matter began on July 1, 1985, and concluded on August 2, 1985. Before the start of the trial Judge Clemon bifurcated the proceeding so that the only issue heard concerned the liability of the Defendants. On December 9, 1985, the District Court entered an order and memorandum of opinion in which it found that a racially dual system of higher education previously had been operated by the State of Alabama until at least 1967 and that the state had failed to dismantle the vestiges of the prior de jure dual system. United States v. Alabama, 628 F.Supp. 1137 (N.D.Ala.1985). Judge Clemon then ordered the “State of Alabama, [the Governor, ACHE and APSCA]” to submit a plan to eliminate all vestiges of the dual system of higher education in Alabama. 628 F.Supp. at 1173. An issue that had been severed from the main case involving the recertification by the SBE of certain teacher education programs at ASU, was heard by Judge Clemon immediately after the conclusion of the main case. On August 20, 1985, the District Court enjoined the SBE from decerti-fying ASU’s educational programs. An appeal to the Eleventh Circuit was taken, which affirmed the injunction on behalf of the Knight Plaintiffs but also held that ASU had no right to sue the state or its agencies under Title VI or the Fourteenth Amendment. United States v. Alabama, 791 F.2d 1450 (11th Cir.1986). ASU filed with the Court of Appeals petitions for rehearing and suggestions for rehearing en banc, which were denied. 796 F.2d 1478 (11th Cir.1986). ASU then unsuccessfully petitioned the United States Supreme Court for certiorari. 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 144 (1987). Meanwhile, the District Court overruled motions by several of the Defendants under 28 U.S.C. § 1292(b) seeking immediate appellate review of the District Court’s original findings concerning the existence of a dual system of higher education based on race. Thereafter the Defendants filed a notice of appeal to the Eleventh Circuit Court of Appeals under 28 U.S.C. §§ 1291 and 1292(a). On February 13, 1986, AU and the University of Alabama System moved the Court of Appeals to stay the remedy phase of the trial. Before the Plaintiffs had an opportunity to reply, the Circuit granted the stay on February 14, 1986. The Knight Plaintiffs, ASU and AAMU filed separate motions to dissolve the stay which were denied by the Circuit. On May 16, 1986, the Knight Plaintiffs, AAMU and ASU, petitioned the United States Supreme Court for a writ of certio-rari seeking a dissolution of the stay entered by the Eleventh Circuit and a ruling that the appeal from the District Court order was premature. While the petition for certiorari was pending the Knight Plaintiffs and the state’s predominately black schools also filed an Application with Justice Powell to dissolve the stay entered by the Court of Appeals. Justice Powell denied the Application and the Supreme Court shortly thereafter denied the petition for a writ of certiorari. On October 6, 1987, the Eleventh Circuit reversed and remanded the judgment of the District Court. It held that the complaint of the United States should be dismissed without prejudice, the Knight Plaintiffs’ Title VI claim should also be dismissed without prejudice, that Judge Clem-on be removed from the cases and that a new trial be had if the United States and the Knight Plaintiffs refile their claims. United States v. Alabama, 828 F.2d 1532 (11th Cir.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988). The Court of Appeals affirmed the Knight Plaintiffs’ right to challenge vestiges of segregation under the Fourteenth Amendment. 828 F.2d at 1551. After six other district judges were re-cused on their own motion or by order of the Eleventh Circuit, the Chief Judge for the Northern District of Alabama certified that a need existed for a judge from another district to preside over this case. The undersigned, a United States District Judge for the Northern District of Georgia was designated by then Chief Judge Paul H. Roney of the Eleventh Circuit to perform all judicial duties relating to this action. In re John F. Knight, Jr., No. 88-7764 (11th Cir. Apr. 12, 1989). On remand, John F. Knight, Jr., et al., were designated lead plaintiffs, and both they and the United States filed amended complaints. On March 12, 1990, this Court entered a lengthy order disposing of all pending motions to dismiss. Among other things, the Court denied all motions to dismiss the statewide Title VI claims of the United States and Knight Plaintiffs relying on the Civil Rights Restoration Act of 1987, which legislatively overturned the Supreme Court’s ruling in Grove City College v. Bell, 465 U.S. 555, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). Motions to dismiss the Knight Plaintiffs’ Fourteenth Amendment claims and the intervention of the United States to assert its own Fourteenth Amendment claims were also denied. The Court did grant motions to dismiss the Knight Plaintiffs’ Section 2 Voting Rights Act claim. The Court also dismissed the Knight Plaintiffs’ vote dilution allegations premised on the First, Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution of the United States. These counts were dismissed on the grounds that the factual predicate plead in the complaint did not constitute a cognizable claim concerning voting or voting strength as a matter of law. Knight v. Alabama, No. 83-M-1676-S, slip. op. at 52-63 (N.D.Ala. Mar. 12, 1990). Finally, the Court dismissed the cross claims of ASU and its Board of Trustees on the grounds that they lacked standing to pursue the interest of third parties who were already adequately represented by the Knight Plaintiffs. Id. 38-51. On June 15, 1990, following a hearing at which most of the named plaintiffs and plaintiffs-intervenors testified, the Court conditionally certified John F. Knight, Jr., et al., and Alease S. Sims, et al., to represent a class of “all black citizens of Alabama and all past, present and future students, faculty, staff and administrators of Alabama State University and Alabama A & M University.” Knight v. Alabama, No. 83-M-1676-S, slip op. at 9 (N.D.Ala. June 15, 1990). The class was thereafter denominated as the “Knight Plaintiffs.” Before the start of this trial, and over the objection of the Knight Plaintiffs, the Court reaffirmed several consent decrees previously approved by Judge Clemon. The reaffirmed decrees were between the United States and the University of South Alabama, the University of Montevallo, Jacksonville University, and Livingston University. This Court also approved consent decrees entered into for the first time between the United States and Troy State University, and the United States and the State Board of Education, Athens State College and Calhoun State Community College. These decrees were also objected to by the Knight Plaintiffs. The Government considers the consent decrees to disposes of all claims which it makes against these parties. In approving the consent decrees, the Court clearly indicated that in the event there was a finding of liability and a judicial remedy required, those schools who had entered into consent decrees with the Government might well have to participate in the remedy regardless of their independent agreements with the United States. The Court specifically indicated it would retain jurisdiction over all settling parties as to any remedy following a trial on the merits. Knight v. Alabama, No. 83-M-1676-S, slip op. at 2-3 (N.D.Ala. June 28, 1990). By Order of the Court, the 1985 trial record and transcript was specifically incorporated into the current proceedings. The parties were given an opportunity to object to any portion of the 1985 trial record which was, in their opinion, improperly introduced into evidence. The parties were also allowed to object to the introduction of testimony from the 1985 trial if it was felt that the cross examination had been unduly restricted. Finally, the Court chose not to bifurcate this case between liability and remedy. The Court believed that the best use of judicial and financial resources would be to hear both issues during a single trial. Trial began October 29, 1990, and, except for holiday recesses, continued uninterrupted to April 16,1991. The Court heard from approximately 200 witnesses, received hundreds of thousands of pages of exhibits and produced a transcript well in excess of 22,-000 pages. CONTENTIONS OF THE PARTIES What follows are the contentions of the various parties to this case. The Court takes these contentions directly from the submissions of the parties with only minor changes. A. Knight Plaintiffs The Knight Plaintiffs contend that segregation was only one aspect of a broader official state policy of white supremacy and that many of the current institutions, policies and practices of public higher education in Alabama are designed with the specific intent of subordinating black citizens. Higher education is the gateway to the professions, technology, business and most other aspects of middle class American society. Alabama’s official policy was and is that public higher education should afford full access to these middle class roles only to its white citizens and that the higher education of black citizens should be restricted so as to limit blacks to subordinate roles in the state’s political, social and economic order. Plaintiffs contend that this official policy of white supremacy in higher education has been implemented historically and in the present through the following policies: The continuing restriction of the missions of ASU and AAMU to those of the traditionally white regional/teacher colleges was established and maintained for the purpose of discriminating against black citizens. Black Alabamians were promised in 1873 and afterwards that ASU would provide for them the same liberal arts, graduate and professional educational opportunities as UA provided whites. The fraudulent and racially discriminatory repudiation of this promise to black people has been repeated throughout Alabama’s history and is ongoing. AAMU was designated Alabama’s black land grant university in 1890, but it received no state funding for land grant functions until 1982, when small appropriations began, and the state continues to this day denying AAMU any share of federal funds proceeding from the 1862 Morrill Land Grant Act, the 1887 Hatch Act and the 1914 Smith-Lever Act. As a result, black farmers were forced off the land in disproportionate numbers. Today, the black community, with its unique needs and interests, is still denied equal access to and participation in modern agricultural and engineering technologies that land grant funding is intended to support. The denial to ASU and AAMU of graduate, professional and research programs intentionally restricts the development of their undergraduate programs as well. Physical separation of blacks and whites in public education was maintained by law. De jure segregation was imposed in a variety of historical ways, ranging from policies of the Reconstruction era State Board of Education, to constitutional prohibitions in 1875 and 1901, to massive resistance policies of governors and HWU boards of trustees in the twentieth century. Since Alabama became a state, it has maintained through a variety of historical circumstances a steadfast policy of imposing white control over the public education of black people. This racially motivated policy was crucial to the regime of white supremacy for two purposes: (1) to make sure the content, values and style of blacks’ education prepared them for subordinate roles in society, and (2) to ensure that white persons would never be forced to submit to the authority of black persons. African Americans have always understood that their educational opportunities depended on the extent to which they could gain a measure of control over their own institutions, and that their ability to combat the policy of white control directly depended on the extent to which black citizens could gain a share of effective political power. Among the earliest achievements of blacks elected as a result of the 1965 Voting Rights Act and federal court legislative reapportionment decrees were creation of independent, majority-black boards for ASU and AAMU and corresponding increases in their state appropriations. Alabama’s historical policy of subordinating its African American citizens through public higher education persists to the present. It is accomplished by limiting blacks’ access to many undergraduate and most graduate and professional programs to those afforded by HWUs. Various admission criteria cause the number of blacks in HWU programs to be disproportionately low to begin with. Those black students who do enter the HWUs encounter white administrators, staff and students who don’t expect them to succeed on the same basis as white students. Whites’ underex-pectations of blacks are precisely the attitudes of white superiority and black subordination that for generations the State of Alabama has officially promoted. The exclusion of African Americans from or their underrepresentation on the governing boards, administrations and faculties of the HWUs is a manifestation of Alabama’s historical policy of preventing black persons from exercising authority or even significant influence over the education of white persons. Black underrepresentation in positions of authority at HWUs is the main current mechanism of massive resistance at these schools. It ensures that the educational values, content and styles of the African-American community will not share genuine influence on HWU campuses with the educational values, content and styles of the white community. The small pool of African Americans who already have the doctoral and professional degrees demanded for university faculty positions today is a proximate result of at least two current racially motivated policies: (1) the restriction of HBUs’ missions with respect to graduate and professional programs and (2) blacks’ continued inability to overcome institutionalized massive resistance at HWU graduate and first professional schools. Unless both racially discriminatory policies are corrected, the black community will continue to be denied equal access to the leadership and resources needed for its political, social and economic development. The creation, expansion and maintenance of HWU branch campuses in Montgomery and Huntsville were and are manifestations of Alabama’s intentionally discriminatory policies of (1) restricting the HBU missions, (2) ensuring that white persons would not be forced to submit to the educational authority of black persons and (3) denying historically black institutions the opportunity to provide educational and developmental support for the social and economic growth of the state and the region in which they are located. These HWU branches are important institutional mechanisms in the current strategy of massive resistance, and their continued duplication of programs that already are or ought to be offered at ASU and AAMU perpetuate segregation and its official stigma on the black community. Defendants, except for ASU and AAMU, deny plaintiffs’ claims and contend that the State and its agencies have taken sufficient steps to eliminate historical and continuing discrimination against black citizens in public higher education. ASU and AAMU agree with plaintiffs’ contentions. B. The United States Government The basic contention of the United States is that the vestiges of racial segregation have not been eradicated “root and branch” from public higher education in the State of Alabama and that the Court should direct the formation of a plan calculated to eliminate such vestiges. All of the following contentions are subsidiary to this basic premise. (a) Alabama required absolute segregation in all public education until the middle of the 1960’s. (b) The Legislature and executive branches actively and resolutely opposed any and all attempts to change these requirements of absolute segregation until otherwise required by federal court order. (c) In keeping with this overall policy, at the four-year level, public higher education in Alabama in 1954 was absolutely segregated with two four-year schools (AAMU and ASU), limited to black students and black faculty, which were substantially inferior to the four-year schools established and operated for whites only. (d) The Legislature and Governor, as well as the white schools themselves, actively opposed the attendance of blacks at the white four-year institutions until these schools were required to admit black students by federal court order. . (e) Alabama is under a constitutional obligation to take action to eliminate “root and branch” all vestiges of the racially dual system of public higher education which it established. (f) Alabama has failed to take the necessary steps to compel either the disestablishment of the dual system in state higher education or to establish the conditions necessary to allow this racial duality to disappear over the course of time. (g) The Defendant universities themselves have failed to take the constitutionally necessary steps to make the transition from “white” schools and “black” schools to “just schools.” (h) The white schools have affirmatively hindered the black schools from attracting white students, primarily through course and program offerings at geographically proximate institutions. (i) The white schools have failed to hire qualified black faculty members and to appoint qualified black administrators with the reciprocal effect of maintaining their own identification as white schools and cementing the identification of the black schools. (j) The white schools have adopted admission policies which result in fewer black students enrolling in these schools and operating their institutions so that black students are less likely to graduate once in attendance at the white schools, continuing their identification as white schools. (k) The black schools have failed to take steps to attract white students and do not appoint and retain white faculty as to eliminate their identity as black schools and make the transition from “historically black schools.” (l) The state of Alabama has failed to disestablish its dual system of public higher education by not taking steps to make the black schools sufficiently attractive in terms of facilities to attract white students. (m) Alabama has failed to disestablish its dual system of higher education by not providing sufficient funding to the black schools to enable them to eradicate the past neglect of the state and thus compete on a level playing field for all students, both white and black. (n) The failure of the state to eliminate program duplication and to continue operating two agricultural schools, one overwhelmingly white and supported by disproportionate resources, one black and simply incomparable. (o) The state has failed to disestablish its dual system by not taking steps to eliminate program duplication and by not offering unique, attractive programs at all schools so that other-race students will not be discouraged from attending schools they were once absolutely precluded from attending by state action. (p)The state and its four year institutions of higher education have no plan, policy, or design to eliminate absolutely the racially dual structure of public higher education at the four year level and, with the exception of black schools and those institutions which have entered into consent decrees with the United States in this action, no concrete plan to foster the conditions which will allow this racially dual structure to dissipate and eventually disappear. The United States and the Knight Plaintiffs contend that they are entitled to relief based on the following: a. Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000d et seq. b. The Fourteenth Amendment to the Constitution of the United States. In addition, the Knight Plaintiffs seek relief under the following theories: a. Third party beneficiary contract rights of plaintiffs and the class they represent accruing from agreements entered into by Defendants with the United States under Title VI. b. Rights of Plaintiffs and the class they represent as beneficiaries of a constructive trust created by the defendants’ receipt of monies from the federal government under Title VI agreements. c. The Fifteenth Amendment to the Constitution of the United States. d. The Civil Rights Act of 1866, 42 U.S.C. § 1981. e. The Second Morrill Act, 26 Stat. 417 et seq., 7 U.S.C. § 321 et seq. f. Rights of plaintiffs and the class they represent as beneficiaries of a constructive trust created by the defendants’ receipt of monies from the United States under the Second Morrill Act. g. The Civil Rights Act of 1871, 42 U.S.C. § 1983. C. State Defendants The State Defendants’ contentions are as follows: (a) The State Defendants are not subject to Title VI of the Civil Rights Act of 1964. The state supported institutions in Alabama are governed by individual boards of trustees rather than by a central governing board. Alabama has no public system of higher education within the meaning of Title VI. Neither the State of Alabama, the Governor, APSCA, nor the State Finance Director are programs or activities receiving federal financial assistance within the meaning of Title VI. (b) The State Defendants have fulfilled any constitutional or statutory requirement to eradicate vestiges of segregation. (c) The State Defendants cannot be held liable for matters beyond their control such as institutional admissions standards, tuition schedules, employment practices, expenditures and the like. (d) The Federal Constitution does not require that the state remedy pre-1964 exclusion of black students from comprehensive post-secondary education by establishing and operating predominately black institutions comparable in funding and programs to Auburn University and the University of Alabama. (e) The difference between AU and UA on the one hand and AAMU and ASU on the other are not vestiges of de jure or de facto segregation. Such differences exist because AU and UA have broader missions and roles than do the predominately black schools. (f) Expansion of AU and UA into the state’s urban areas is not a vestige of segregation. Rather, AU and UA were pursuing their mission of providing broad-based education to large numbers of students. (g) No dual system of higher education exists in Alabama. More black students attend and are awarded degrees by state-supported, predominantly white institutions than state-supported predominantly black institutions. If state resources are channeled away from predominately white institutions toward predominately black institutions, then state resources will be channeled away from a majority of black students. D. Auburn University Defendant Auburn University denies the material allegations of the amended complaint of the Knight Plaintiffs and has asserted several affirmative defenses including: (a) That plaintiffs fail to state a claim upon which relief can be granted in the sixth cause of action based on 42 U.S.C. § 1981, and the seventh cause of action which seeks 42 U.S.C. § 1983 injunctive relief based on state allocation of appropriations pursuant to the Morrill Act of 1890. (b) The claims based on the establishment and operation of AUM are barred by the doctrines of collateral estoppel and res judicata because of the previous decision of the United States Supreme Court in Alabama State Teacher’s Association v. Alabama Public School and College Authority, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969) (“ASTA”). (c) The claims of the plaintiffs, to the extent they involve AUM, are barred by the doctrine stare decisis, as the establishment and operation of AUM as an institution open to students of all races was sanctioned by the United States Supreme Court in previous litigation, ASTA, 289 F.Supp. 784 (M.D.Ala.1968), aff'd per curiam, 393 U.S. 400, 89 S.Ct. 681, 21 L.Ed.2d 631 (1969). (d) That AUM has never been and is not now a de jure or de facto segregated institution and is not, and has never been, part of any racially segregated system of higher education. (e) That neither Title VI nor its implementing regulations impose any obligations on AUM beyond non-discrimination, because AUM is not a program in which previous discrimination took place. (f) That any claims concerning the organization of and administrative responsibility for the Alabama Cooperative Extension Service (“ACES”) are barred by the doctrines of prior action pending, collateral estoppel and res judicata based on the pending case of Strain v. Philpott, 331 F.Supp. 836 (1971) in the United States District Court for the Middle District of Alabama, which has been pending for approximately twenty years and remains active as to pending motions for relief concerning modification of the organization of the ACES and other issues related to its desegregation and non-discriminatory operation. (g) That the continued existence of racially identifiable institutions of higher education does not violate the Constitution or laws of the United States or of the State of Alabama to the extent continued racial identifiability of defendant institutions is a result of choice by black students, faculty, administrators, and staff to become associated with such institutions. (h) That the claims of plaintiffs are barred by the applicable statutes of limitations, the doctrines of laches, waiver, estop-pel and unclean hands. (i) That AU’s responsibility for agricultural education, agricultural extension, and agricultural research resulted from factors other than race, and that statewide responsibility for agricultural extension and research would have developed in the state's largest land grant university for reasons unrelated to race. Auburn University denies the material allegations contained in the United States’ Complaint and in addition to the affirmative defenses asserted as to the claims of the plaintiff class, avers: (a) That the United States and the Knight Plaintiffs have failed to comply with procedural prerequisites to claims brought under Title VI and claims under the fourteenth amendment. (b) That the federal agency responsible for Title VI compliance with respect to funds for agricultural education, extension, and research is the United States Department of Agriculture, and that the United States and other plaintiffs have not complied with necessary procedures for enforcement of Title VI in this action as to programs administered by the U.S. Department of Agriculture. (c)That the federal government is barred from the relief it seeks in this action by the equitable doctrine of unclean hands, in that it has encouraged, and continues to encourage, preservation of the racial identi-fiability of AAMU, ASU, and other predominantly black institutions through federal subsidies based on the racial identifiability of such institutions and by selective failure to enforce Title VI as to AAMU and ASU. AU contends that it has accepted responsibility for, and has carried out, desegregation in all of its programs and activities. AUM, established in 1967, was never segregated, and has at all times since its inception been operated on a non-discriminatory basis. AU contends that since the admission of the first black student at AU in 1964, AU has desegregated each of its programs and activities. No person is excluded on the ground of race, color or national origin from participation in, or denied the benefits of, or subjected to discrimination under any program or activity of AU, as defined by Title VI of the Civil Rights Act of 1964. AU has taken affirmative steps including the recruitment of black students and faculty to disestablish vestiges of segregation. AU contends that each of the public institutions of higher education in Alabama is governed by a separate and independent board of trustees, and no public institution of higher education is part of a “system” which is governed by some single entity with higher authorization than the institutions’ respective boards of trustees. There is no “system” of higher education in Alabama so that one institution can be judged vicariously liable for the transgressions of some other institution which is autonomous and separately governed. In Alabama, there has never been a “system” which governed all public institutions of higher education. The governance of public higher education has been highly decentralized, with each autonomous university responsible for its own management and control by its own board of trustees. AU contends that ASU and AAMU, which have continued to grow since the end of segregation, now seek judicial license to duplicate the missions and programs of UA and AU and, thereby, to create a racial duality in 1990 that did not exist prior to 1964. Moreover, the Knight Plaintiffs seek to establish “separate but equal” programs for ASU and AAMU because of the black identity of those universities, in a manner completely inconsistent with their constitutional and statutory obligations. AU contends that the constitutional autonomy of its board of trustees began i