They Wanted Desegregation. They Settled for Money, and It’s About to Run Out.

Mississippi Valley State University seems to appear out of nowhere after a long stretch of road with expansive fields lining each side. Once an abandoned cotton patch, the campus looms large over the flat landscape.

It sits across the road from a closed gas station, but the institution itself presents a good face. A pruned, tree-lined entrance runs squarely into a renovated administration building, which sits next to an upgraded athletic facility and a 10,000-seat football stadium that was recently refurbished. The handsome look of the campus is in part a result of one of the longest-running civil-rights cases in American history, and perhaps the most important court decision to address the issues of segregation and inequity in higher education.

In 1975 a group of students and racial-justice advocates tried to take on the ages-old structures underlying that inequity. They sued the State of Mississippi, arguing that the government had neglected the historically black colleges there. The state, they argued, had perpetuated segregation by funding better programs, resources for students, and facilities at Mississippi’s predominantly white colleges and allowing the black colleges to languish.

In other words: Mississippi had not done enough to reckon with its segregated past. And forcing the state to deal with it wouldn’t be easy.

The legal fight, which became known as the Ayers case, wound its way through the courts for nearly three decades. It went all the way up to the United States Supreme Court and back down to the lower courts, exhausting the plaintiffs, who knew they were fighting an uphill battle against a system that the state believed was just.

They ultimately decided to settle, reasoning that it was better to get something than to keep fighting and risk ending up with nothing. And get something they did: $500 million for the black colleges in the state over the course of 17 years.

The Ayers case became a landmark for other states that sought to settle disputes over inequity and segregation in higher education.

The problem is, it didn’t exactly work.

When you get past the newer facilities at Mississippi Valley State, the campus’s handsome face starts to feel like a veneer. The older buildings on campus look it. Green spaces stay soggy and brown after a storm, a result of a drainage system that cannot handle the winter rains even after a million-dollar renovation.

A closer inspection reveals a lot more than infrastructure problems. Mississippi’s black colleges have made some gains in the post-Ayers era — new programs, growing enrollments, and new facilities — but digging a little deeper offers reasons for uncertainty and concern.

Not many white students can be found on the campus. That puts the university in a tough position, because there’s money in the Ayers settlement that is contingent on black colleges’ increasing their nonblack enrollments. But Mississippi Valley, stung by a tight budget and a shortfall in state appropriations, has few of the distinctive programs that would make white students choose it over Delta State University, a predominantly white school in the whiter town of Cleveland, less than an hour away. Nearly 99 percent of white undergraduates seeking degrees at Mississippi’s public four-year institutions do so at one of the five predominantly white universities.

At the same time, black-student enrollments have been falling at the state’s flagship campus, the University of Mississippi, the most recent available data show. And the proportion of black students at other predominantly white campuses, like Mississippi State University and the University of Southern Mississippi, has dropped, too.

Critics of black colleges often argue that the colleges bear the blame for their overwhelmingly black student bodies. But that ignores history. The institutions were founded to educate black Americans who had been largely shut out of higher education. And the idea that the Civil Rights Act of 1964 dealt a final blow to racial discrimination created an unrealistic expectation that the integration of black colleges would happen naturally if only the leaders of those colleges wanted it to happen. But college leaders cannot decide where students choose to go. They can only make the case that their college is the best option.

Mississippi Valley State, and other black colleges, have tried to make that case. But decades of discrimination have hampered their efforts to develop donor networks, flagship programs, and strong relationships with people in power, such as the members of the Mississippi Institutions of Higher Learning — a state agency whose board is stacked with alums of Ole Miss, Mississippi State, and Southern Miss, but only one black-college graduate, with a second joining the 12-member board on May 8.

Black colleges are fighting for students and funding with one arm handcuffed by history.

Competition for resources among state colleges in Mississippi has stiffened in recent years as the Legislature has siphoned money from its higher-education system at a faster rate than nearly any other state in the country. The Ayers settlement has helped black colleges stay in the game, but by 2022 that money will be gone.

That’s a problem. Even today, black colleges carry an unequal load of educating black students. Historically black colleges currently make up just 3 percent of the nonprofit colleges across the country, but they graduate 17 percent of black students, and account for 24 percent of black science, technology, engineering, and math graduates. Of all of the bachelor’s degrees earned within six years by the 2010 freshman class of black, first-time undergraduates at any of Mississippi’s public four-year colleges, 45 percent were earned at one of the state’s three HBCUs.

Too often, inequitable funding for black colleges means inequitable offerings for black citizens.

What happens in Mississippi over the next five years may say a lot about how much the landmark settlement was really worth. Black colleges elsewhere will be paying attention. Because the Ayers settlement, the current model for how black colleges can pry some form of reparations from the government, had flaws.

Mississippi’s largest black institution, Jackson State University, was established after Reconstruction, in 1877, and moved to Hinds County five years later. In the seven decades after the college was founded, according to a report by the Equal Justice Initiative, that county saw more lynchings than nearly any other in the state — and there were more lynchings in the state than anywhere else in the country.

Bennie G. Thompson, 70, has been a resident of Bolton, in Hinds County, his entire life. The world was changing when Thompson was growing up. He was 6 years old when the Supreme Court declared segregated public schools unconstitutional, but he attended them his entire grade-school career. Mississippi’s white colleges had been forcibly integrated not long before Thompson enrolled at Tougaloo College, a small, private historically black college in Jackson, Miss. He graduated in 1968, the year Martin Luther King Jr. was assassinated just hours away in Memphis.

Thompson went on to Jackson State for his master’s degree, but he found many things lacking at the black college in the state’s capital. The books in the library were old. So were the science labs and the equipment that went with them.

The deficiencies of Jackson State became even more apparent after he enrolled at Southern Mississippi, a predominantly white institution, for a second graduate degree.

“I was made aware of how easy it was as a student to go to the library and find books that you had requirements to research and read,” Thompson says. “I found a job on campus, there were counselors available to me at my beck and call, and it was very easy as a student at a predominantly white institution to do well.”

He wasn’t the only one who saw the disparity. A group called Black Mississippians for Higher Education had also noticed the dearth of amenities at black colleges compared with their white peers. The group had eyes on making the state fix the problem. But it needed a black student at a white institution to help make the case. Thompson didn’t mind.

In January 1975, the group helped bring a class-action lawsuit against the State of Mississippi. The plaintiffs were led by Jake Ayers, the father of a student at Jackson State. They wanted to force the state’s hand. It had hamstrung the state’s three public black colleges — Alcorn State University, Jackson State, and Mississippi Valley State — with years of inadequate funding, they argued. They also wanted to tear down barriers to access for all students at the state’s other predominantly white public, four-year institutions.

The U.S. Department of Justice soon joined the case, which included as parties all black citizens who were residents of the state. But the wheels of justice turn slowly. Twelve years passed, and the parties resolved one thing: They could not come to an agreement.

The state of Mississippi argued that the playing field was already level. Students could attend any college they wanted, the state argued, and that meant that Mississippi had done its duty to dismantle its segregated system.

Mississippi Valley State U.

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Giant banners cover the walls beside boarded-up windows of vacant buildings at Mississippi Valley State U.

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A view of the front entrance to the campus of Mississippi Valley State U.

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A moldy “Welcome” sign and fallen ceiling tiles are visible inside Leflore Hall, a vacant residential building at Mississippi Valley State U.

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A marching-band member at Mississippi Valley State U., Keyshaun Burkhead, plays cymbals during a student event.

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The Academic Computer Center at Mississippi Valley State U.

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Carts and furniture sit in a hallway of the Student Union building at Mississippi Valley State U.

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Terry Young dances during a student event at Mississippi Valley State U.

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A bus is parked between an older storage building and the newer Business Education Building at Mississippi Valley State U.

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Giant banners cover the walls beside boarded-up windows of vacant buildings at Mississippi Valley State U.

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The black citizens disagreed. Sure, students could attend any college, but several factors prevented black students from actually enrolling at the white institutions. Mississippi had made standardized-test scores the sole factor for automatic admission at all state colleges, but the thresholds were higher at the white colleges. The plaintiffs argued that the system shut out many black students who had good grades but didn’t perform well on the tests.

Meanwhile, many of Mississippi’s white colleges offered the same academic programs as its black colleges, making it hard for black colleges to compete for white students. Add to that the fact that the state had, for decades, spent less money per student on its black colleges, which created the differences that were obvious to Bennie Thompson the moment he arrived at Southern Miss.

In 1987, with an agreement out of reach, the black citizens took Mississippi to federal court.

The federal judge sided with the state, and so did the appeals court. “Mississippi’s current actions,” a case syllabus reads, “demonstrate conclusively that the State is fulfilling its affirmative duty to disestablish the former de jure segregated system.”

By the time the lawsuit was 16 years old, the black Mississippians were no closer to reparations for the black colleges. There was one last layer of the justice system that could turn the tide in their favor.

In 1991, the U.S. Supreme Court said it would hear the case.

The oral arguments in the Ayers case featured a veritable red carpet of 1990s courtroom heavyweights. For the plaintiffs, there was Kenneth W. Starr, a solicitor general who had not yet become famous for investigating President Clinton. And there was Alvin O. Chambliss Jr., a living legend among civil-rights attorneys.

On the bench sat Clarence Thomas, fresh off a brutal confirmation process that involved charges of sexual misconduct by a former legal aide, Anita Hill. Also there were Sandra Day O’Connor, the first woman on the court, and Antonin Scalia, who was hitting his stride as the court’s pugilistic conservative stalwart.

Chambliss opened his arguments with a history lesson in a pastor’s cadence. He restated the case: Mississippi had violated Title VI of the Civil Rights Act, which protects people from discrimination on the basis of race, color, or national origin in programs that receive federal financial assistance.

Justice Scalia wanted to know what remedies Chambliss was proposing. The worst thing to do “would be to establish a black university that has the full curriculum and is fully good as what is now the predominantly white university,” Scalia said. White students would go to the white colleges, black students to black colleges. Segregation would get worse, not better.

That’s not what Chambliss wanted. “You will always see some level of racial identifiability on those campuses,” he said. But the goal was real desegregation, not a new doctrine of separate-and-equal.

Starr picked up the argument from there. He pointed to Mississippi Valley State and Delta State, the neighboring institutions that showed the yawning gulf between black colleges and white colleges. Why, he asked, would a white student who could attend either school pick the one “that has continued to suffer deprivations of funding and facilities?”

But if the black colleges are underfunded, said Scalia, why don’t more black students go to the white colleges? If Mississippi’s colleges were still segregated, perhaps, he continued, it was because of the sum of thousands of individual choices that both black and white students were making. The state wasn’t choosing for them.

Further, it wasn’t just the black colleges that were underfunded, argued William F. Goodman Jr., the lawyer for the state of Mississippi. It was all of the state colleges.

Justice Thomas, who later developed a reputation of rarely speaking from the bench, pressed Goodman.

The black universities had been discriminated against, Thomas pointed out. Did that create a difference between the black colleges and white colleges? And did that mean the state owed them?

No, Goodman replied. “In today’s world,” he said, “we have absolute genuine freedom of choice.”

And that was the fundamental disagreement between the state and the black citizens. Mississippi did not believe it had a problem. Sure, things were bad in the past, but that was over now. The plaintiffs, however, thought there was no way you could look at the system and not see the lingering racial issues.

The Supreme Court, in an 8-1 decision, agreed with the plaintiffs in the case, United States v. Fordice. Even if Mississippi’s policies are “race neutral on their face,” wrote the majority, they can still perpetuate segregation. Justice Scalia was the only justice to disagree.

For the first time in nearly two decades, the plaintiffs had a win. And it was a big win. The ruling set a new standard for how far a state needed to go to dress the lasting wounds of segregation in higher education.

“This decision is a great thing. It’s the most important thing since Brown v. Board of Education,” Chambliss told The Chronicle after the decision came down in 1992.

“Everything is on the table now.”

When everything is on the table, there’s a risk that something could fall off.

Black-college leaders wondered if the Supreme Court ruling might actually hurt their institutions. Some people took it as a cue to close the colleges. The state higher-education board proposed a plan to close Mississippi Valley State and merge it with Delta State. That didn’t sit well with the black colleges or the U.S. Justice Department, and the plan was shelved. However, it was a sign that Mississippi still felt it did not owe its black colleges special treatment.

The Ayers case was not over, either. The high court had pointed out constitutional problems with how Mississippi was dealing with its black colleges, but it was up to the lower courts to sort out those “remedies” that the Supreme Court justices had been so curious about.

The case bounced between the district court and the appellate court for a few more years. By now, the plaintiffs were growing weary. After three decades, it appeared that the most expedient way to end the case would be for the state to funnel money to its black colleges for programs, salaries, and facilities.

The parties decided to craft a settlement.

Bennie Thompson, by then a Democratic U.S. Representative from the state, had become the lead plaintiff, and he and the others hired new lawyers. In 2001, more than a quarter-century after the beginning of the first negotiation, Mississippi agreed to pay its black colleges $246 million over 17 years for academic programs, and $75 million over five years for capital improvements. The state would also contribute $70 million to a public endowment, and try to raise up to $35 million for a private endowment, which a state committee would manage until the colleges increased their nonblack enrollments.

Some people thought that was too generous. After the state Legislature agreed to the settlement, Neal B. Biggers Jr., the District Court judge who had originally ruled that Mississippi owed its black colleges nothing, questioned the wisdom of how the lawmakers chose to allocate state money. But if the parties agreed, he said, so did he. The final judgment was ordered in February 2002.

In his order, Biggers said there was nothing more that Mississippi could be expected to do to contend with the legacy of segregation in its higher-education system. “There are no continuing state policies or practices or remnants traceable to de jure segregation, with present discriminatory effects, which can be eliminated, altered or repealed with educationally sound, feasible, and practical alternatives or remedial measures,” Biggers wrote in the judgment.

“The settlement agreement,” he continued, “accomplishes a full, complete and final resolution of this controversy.”

And that was that.

Chambliss, who by then had departed as a lawyer on the case, thought a few hundred million wouldn’t be nearly enough to erase the vestiges of legal segregation. “I could not spend 25 years of my life to take that settlement,” Chambliss recently told The Chronicle. “It was blood money.”

Thompson says it was difficult “to have to settle for a half a billion dollars when I knew that we needed three to four times that to start leveling the playing field.” But continuing to fight, and running the risk of losing, “was far more traumatic.”

“How long can we hang out here, challenging this,” he says, “with a system we know is hurting our children?”

Ronald Mason Jr. was just getting his feet under him as president of Jackson State when the Ayers case was settled. When he arrived, in 2000, the college was making plans for improvements in anticipation of a final settlement. The college had opened an urban-planning program. And it had started to tear down the neighborhood around the campus, now that there would be state money to help rebuild it.

When the money started to flow, it helped the black colleges start new programs. The idea was that, over time, more courses of study would not only make for more equitable education for black students, but also make the colleges more appealing and help attract non-black students.

Mississippi Valley State renovated its library, started several programs, including a masters in bioinformatics, and spent money on landscaping and drainage upgrades. Jackson State broke ground on an engineering school, and converted a nearby building into a research and events center. The university has grown by more than 2,000 students over nearly two decades.

And Alcorn State, Mississippi’s first public black institution, launched several business, health, and environmental-science programs.

“Over the last decade or so, Ayers funding has had a phenomenal impact in helping Alcorn become a premier HBCU,” says Marcus D. Ward, vice president for institutional advancement at Alcorn State. “Ayers funding has helped change the face of Alcorn and played a vital role in strengthening the university’s brand and image.”

But when the Ayers settlement was being finalized, black-college leaders like Ronald Mason were also worried. The presidents had little input on the settlement agreement, he told The Chronicle. The money for new buildings and programs was there, but the long-term costs of maintaining the facilities and hiring faculty members were daunting.

Take the engineering school, says Mason, who left Jackson State in 2010. “We had the money to build the building,” he says. “But it was a skeleton of a budget for an engineering school.”

Black colleges have always done more with less, says Mason, but they shouldn’t have to.

As Mississippi was giving Jackson State and other black colleges money from the Ayers settlement, the state was cutting its yearly funding for public higher education. According to a Chronicle analysis, when Mason came to Jackson State, the college was getting $8,997 per student, including operating grants and contracts the state government had with the college; when he left, a decade later, it was getting $6,767 per student, adjusted for inflation. By the 2015-16 fiscal year, Jackson State’s allocation was down to $5,389. In 2016, Mississippi passed the largest tax cut in its history, which could have significant repercussions for state revenue and how much money will be available for public colleges in the coming years.

When the state cuts money from higher education, black colleges tend to feel it the most.

“The dependency that we’ve historically had on this kind of funding has placed us at a disadvantage in a sector that is shrinking, for all of its constituents,” says Crystal A. deGregory, director of the Atwood Institute for Race, Education, and the Democratic Ideal, at Kentucky State University.

“Historically, if the nation has a cold, black America has pneumonia,” says deGregory, “and the same is true for higher ed.”

Some people might think black colleges have developed a stronger immune system, having survived for this long, which is true, she says. But it is also true, she continues, that scores of black colleges that have closed over the years. It would be wrong to take for granted that they will weather every storm.

“We’re resilient,” says deGregory, “but we’re not immortal.”

The Ayers settlement is now 16 years old, and there is still a significant gap between Mississippi’s black colleges and many of their predominantly white counterparts. The data suggest that the longstanding disparities in the state’s higher-education system have persisted. And they are staggering.

Even adjusting for inflation, the three public black colleges in Mississippi were being collectively funded at levels lower than in fiscal year 2001, and at the third-lowest level they had been funded at in the preceding 16 years. The brief period of optimism following the settlement has dissipated. Last year, budget cuts forced Jackson State to lay off dozens of employees and consolidate programs. For Delta State University, the predominantly white institution, the accommodations were much less painful: It closed its golf course and transferred the maintenance employees to other positions on the campus.

According to the most recent available data, the percentage of black students at the University of Mississippi has dropped every year since 2012. And even as the university has seen overall enrollment gains, the black student population has decreased every year except 2014. At Mississippi State and Southern Mississippi, the percentage of black students has fallen in all but one year since 2011.

And the settlement’s private endowment for black colleges — which had an original goal as high as $35 million — has not grown as expected. The state has raised only $1 million of private money, most of it from a single donation. Meanwhile, the University of Mississippi last year announced it had received $153.6 million in private support, marking the sixth consecutive year it raised more than $100 million in private gifts.

The Ayers settlement, for all its flaws, helped black colleges survive for another generation. Now, with the payouts scheduled to end in 2022, and those colleges still educating a disproportionate percentage of black students, a new generation of advocates will have figure out what happens next. Do they file another lawsuit? Do they leave it alone and hope the state starts investing in public colleges again?

For now, the colleges are bracing for the impact of the lost funding.

Alcorn State “has been actively exploring measures and options to sustain Ayers settlement-funded programs and personnel beyond the term of the agreement,” Marcus Ward says. “Within a year, we intend to have a plan in place to hopefully retain as many of the viable academic programs and personnel as our projected budgets will afford.” Budget cuts over the past four years have only heightened the challenge of crafting that plan, he says.

The black colleges have a new advocate. On Friday, the Mississippi Institutions of Higher Learning appointed Alfred Rankins Jr., president of Alcorn State, to be the next commissioner of the agency. He is the first black person to serve in that role, but he faces a difficult question.

If Ayers was not the final answer, what is?

The federal government could help, if it wanted. Government agencies have tools to help scrub away the stains of segregation. It’s just a matter of using them.

The U.S. Department of Justice can join litigation, sue states into settlements, and monitor those agreements, as it did in the Ayers case. The U.S. Department of Education can bring states into line by threatening to withhold federal funds from those that don’t comply with civil-rights laws.

In theory, the Supreme Court’s 1992 decision in the Ayers case strengthened the Education Department’s hand against the states by making clear how the federal government expected them to undo segregation. Race-neutral policies alone wouldn’t cut it.

But even with clear guidelines for what it means to desegregate a higher-education system, six states still have not proved to the Education Department that they have fixed their issues. A department spokesman gave The Chronicle a list of those states: Florida, Maryland, Ohio, Oklahoma, Pennsylvania, and Texas.

The department used to publish the full list, but it has become gradually less transparent about which states it is monitoring. First it moved to a graph showing the number of desegregation cases, leaving off the names of the offending states. Now, one has to ask for it.

The fact that six states have failed to satisfy the department’s “core desegregation obligations” is striking, says Catherine E. Lhamon, assistant secretary for civil rights at the Education Department under President Barack Obama. “The reality is that our states have become complacent in the expectation that the civil-rights standards will not be meaningfully enforced.”

Meaningful enforcement of the law is the most effective way to get states in line, Lhamon says. Why change when there is little consequence for maintaining the status quo?

Mississippi is not on the Education Department’s list. The differences between the black colleges and the white colleges aren’t as obvious as they were in the early 1970s, when Bennie Thompson was taken aback by how much better off Southern Miss was than Jackson State. But the legacy of segregation is still there. In the budget lines. In the donation coffers. In the flooded green spaces that won’t drain right.

The next frontier is Maryland, one of the states that remains on the list. Black colleges there have been fighting the state in court for more than a decade. Maryland has offered the colleges a $100-million cash settlement, but the institutions have learned the lessons of the Ayers case. They know that money alone will not fix the problem. They want the state to help them develop distinctive academic programs that the white colleges will not duplicate — programs that will give them a recruiting advantage.

Their goal is equity. And they’re hopeful they won’t have to fight as long as Mississippi’s black colleges did.

Dan Bauman contributed to this report.

Adam Harris is a breaking-news reporter. Follow him on Twitter @AdamHSays or email him at adam.harris@chronicle.com.