Rawlsian Justice and the Ayers Settlement

Theoretical Framework

John Rawls, Harvard professor and acclaimed philosopher of political liberalism, is esteemed among the top philosophers of the 20th century. He was bestowed the National Humanities Medal in 1999 conferred to him by former President Bill Clinton. At the ceremony, Clinton remarked how Rawlsian thought “helped a whole generation of learned Americans revive their faith in democracy itself” (1999, para. 78). This regard for Rawls was rearticulated 1 month postmortem by Columbia Law Professor Michael C. Dorf who praised Rawls for “making moral philosophy respectable again” (2002, para. 2). Dorf goes on in his essay to describe Rawls’ influence in the courts as one of the most cited nonjurists in American law. Rawls was a prolific author, but for Clinton, Dorf, and others the core of reverence for Rawls is his 1971 treatise, A Theory of Justice. Rawls’ future major works, Political Liberalism (2005) and The Law of Peoples (2001b) respectively focus on justice in a pluralistic society and justice within and between democratic and nondemocratic states.

In A Theory of Justice, Rawls advances the notion of the social contract. He argues that from the original position, behind the veil of ignorance, if individuals did not know what their station of life would be, they would agree to a notion of justice that was moral and fair. ¹ This conception of justice is distilled into two components: fair equality of opportunity and an equitable distribution of social and economic goods. Attendance to fair equality of opportunity and an equitable distribution of goods implicates liberty and equality interests, attention both to processes, the ability to freely pursue ones interests, and outcomes. From the original position, people “know that in general they must try to protect their liberties, widen their opportunities, and enlarge their means for promoting their aims” (Rawls, 1971/1999, p. 123). This attendance to process fosters mutual respect, protecting transactions within the social contract from hegemonic influences. Going beyond process to consider outcomes, an equitable distribution of social and economic goods provides insurance “against the worst eventualities” (Rawls, 1971/1999, p. 154).

Justice as fairness is as much about outcomes, the consequences of processes, as processes in and of themselves. This contribution to social contract theory is a unique contribution of Rawls, which brings the concomitant notion of a stable, well-ordered society (Frazer, 2007; Marens, 2007). Within the field of education, a system that is attendant to both liberty and equality interests self-reinforces, as the autonomy and freedom to pursue and education can support all students in their pursuit of social and economic goods (Reich, 2002). Reich’s contention readily extends to postsecondary education. By contrast, singular attention to process tends to favor the elite by privileging inherited social, cultural, and other forms of capital (Marens, 2007).

Rawls’ attention to equality and outcomes is not an endorsement of Marxism. Inequity is permissible in a Rawlsian frame so long as inequities serve a bottom line of insulating the most vulnerable from the worst hardships. Hendrix (2005) gets it wrong by asserting that “just injustice,” in the form of the digital divide and other disparate access to resources by race, gender, and class, are justified under justice as fairness. Society as a whole is not better off with these inequities. As argued by Claus (1981), Rawls’ theory provides justification for a reordering of class structure in education, education as social reproduction (Apple, 2004; Bourdieu, 1977), and does so within the comforts of a liberal political orientation. Such intervention is justified only when inequity is systemic, rather than episodic, idiosyncratic to an individual or group in a limited timeframe. However, motivation to structurally intervene to correct intergenerational, inherited inequities requires redistribution, justifying “temporary denials of liberty . . . in order to achieve social and economic reform” (Claus, 1981, p. 165). Claus (1981) admits that such redistributions are not likely to be willingly conceded.

Justice as fairness, even as an ideal theory, is empathetic to the plight of the poor, but is not grounded in benevolence, but self-interest (Rawls, 1971/1999, pp. 128-129). From behind the veil of ignorance no individual would have a complete sense of their station in life. As such the self-preserving motivation is to “think from the point of view of everybody, or ‘every concrete other’ whom one might turn out to be” (Okin, 1989, p. 248).

While Rawls himself leaves the rules derived open to chance, Dworkin (1978) asserts that rules would reinforce the “natural right of all men and women to equality of concern and respect,” living their lives in a just fashion, relying on moral principles (p. 182). Dworkin and Rawls agree that self-interest would constrain people in the original position from creating “arbitrary” rules, whether benefiting a few or marginalizing a subgroup: “None would urge that special privileges be given to those exactly six feet tall or born on a sunny day” (Rawls, 1971/1999, p. 123). From this vantage, “the principles of explicit racist doctrines are not only unjust. They are irrational” (Rawls, 1971/1999, p. 123), impinging on the net production of social and economic goods.

Beyond arbitrary rules, tensions can naturally exist between justice at the societal (macro) level and justice at the individual (micro) level (Jasso, 1983). While Rawls places primacy on the overall net good of the group, he does permit a considerable degree of autonomy, and in fact while equality is important, liberty considerations take priority over equality. In conjoining these concepts, Rawls attempts political neutrality, giving nods both to the political right and the political left (Zuckert, 1981). In Political Liberalism, a response to critics and defense of his treatise, Rawls confronts the issue of “how is it possible for there to exist over time a just and stable society of free and equal citizens, who remain profoundly divided by reasonable . . . doctrines?” (1993, p. 4). He contends that within the original position a condition of reasonable pluralism will prevail, an agreement on basic premises for societal operation made via overlapping moral consensus. In so doing he leaves little resolution of the question of which should take primacy, the individual or the group, when conflicts of justice arise.

In social psychological terms “justice exists when there is congruence between expectations for outcomes based on [a] normative rule and actual outcomes” (Hegtvedt & Markovsky, 1995, p. 259). But what happens when there is congruence at the macro level, but not the micro level or vice versa? Jasso (1983) contends that neither the macro nor the micro take primacy over the other in the long run, that in the long term an equilibrium will be met, new agreement made, to reassert stability. Disequilibrium, incongruence is unstable per se. She argues that a person in this position can (1) maintain their valuation of what is just; (2) adopt a group or neutral entity’s valuation of what is just; (3) seek a new agreement; or (4) remain inconsistent (1983, p. 195). Both options one and four are unstable, although four a temporary stance, a suspension of thought/action until another time. While two is more stable, the concern is whether an individual willingly arrives at this new understanding, or arrives via coerced or other negative means. Option three is most preferred and most stable. According to Jasso (1983), this is the option taken when congressional committees seek the input of various stakeholders in drafting legislation: “it would appear that the actual process is an explicit attempt to balance considerations of micro and macro justice” (p. 195). That it is in fact the duty of professional committee staff to weigh options, both their benefits and unintended negative consequences, so that a policy maker is made aware of individualistic or collective justice conceptions. “Nevertheless, the other principle of justice does not long remain ignored. These discussions typically conclude with selection of a matched pair” (Jasso, 1983, p. 195). In the long run both micro and macro conceptions of justice are attended, a new equilibrium met, or instability results.

In the case of the Ayers settlement, it is unnecessary to consider whether the micro or macro conception of justice should prevail—that of Jake Ayers and heir or that of other signatories to the agreement. It is my argument that justice is not served fully on any level and while signatories to the settlement opted for a new agreement, the fairness of the process by which they arrive at this agreement is questionable. Before delving into that discussion, Rawls’ critics and the value of a well-ordered society as Rawls conceptualized deserve attention.

Rawls’ Critics and the Well-Ordered Society

While a comprehensive theory, with notoriety, justice as fairness has limitations. Critics have charged this work as “greatly overrated” and fundamentally flawed (Zuckert, 1981, p. 466), “unconvincing” (Klienberger, 1976), and particularly limited when considering the context of education (Cohn, 1983; Johnston, 2007; North, 2006, p. 524; Weber, 2008; Wilkins, 1997; cf. Morrison, 1984; North, 2006). Principal critic, Rawls’ Harvard colleague, Robert Noczick objects to Rawlsian egalitarianism in favor of a minimalist government, libertarian frame (1974). According to Nozick, within a state of nature, rights belong to individuals and not groups. As such, it is in fact unfair to consider group interests at the expense of individuals:

To use a person in this way does not sufficiently respect and take account of the fact that he is a separate person, that his is the only life he has. He does not get some overbalancing good for his sacrifice, and no one is entitled to force this upon him—least of all a state or government. (1974, p. 33)

Focusing specifically on Rawlsian theory, he questions how it would be determined that a group is “worse-off” and whether those who are “better-off” would gain from social cooperation. These arguments take aim at Rawls’ contention that behind the veil, participants would be motivated by their self-interests. Kleinberger (1976) posits there is nothing constraining persons from behind the veil for choosing rules for self-regulation that are unjust, further discounting Rawls’ self-interest argument. Noczick asserts it is just for one to have what s/he is able to acquire through the pursuit of one’s liberty interest (1974, p. 151), a door Zuckert (1981) argues Rawls leaves open as justice as fairness does not affirmatively articulate to what any individual is entitled. It merely asserts that one is not entitled to undeserved goods, whether obtained through intergenerational transfers, natural endowment, notions of merit, or ill-gotten gains. Noczick ultimately leaves utopia undefined, given his attendance to process as the exclusion of outcomes, but posits that over time liberty processes will propel social arrival to utopia’s shores (1974, p. 332). However, Noczick’s logic begs the question of “utopia for whom?” as process-oriented strategies tend to favor elites (Marens, 2007).

A difference between Rawls and Nozick then is between assuring equitable distribution of “the pie” and growing “the pie” so that there is more to share socially. Contemporarily minimally fettered individualism has grown the American (U.S.) pie, with U.S. Gross Domestic Product (GDP)—the total amount of goods and services produced in the economy—expanding from US$4,266.3 billion in 1970 to US$13,088.0 billion in 2010, as measured in 2005 dollars (Bureau of Economic Analysis, 2011). Yet wealth for the average citizen has diminished (Brady, 2009; Madrick, 2011). It is posited that Rawls himself was perturbed with an increase in unjust economic outcomes perceived as early as 1971, the year his treatise was published (Barry, 2002; Marens, 2007). Indeed shares for the poor and middle class are smaller contemporarily. Resultant political, social, and economic instability is evident, perhaps best symbolized through the Occupy Wall Street and similar protests domestically and abroad (Chen, 2011).

When the tenets of justice as fairness act in concert, a principal benefit is a well-ordered society. The well-ordered society is one “in which everyone knows and accepts the same principles of justice, and the basic social institutions satisfy and are known to satisfy these principles” (1971/1999, p. 397). It is marked by its stability and endurance over time: “when institutions are just (as defined by this conception), those taking part in these arrangements acquire the corresponding sense of justice and desire to do their part in maintaining them” (Rawls, 1971/1999, p. 398). While individual intentionality is privileged, in contrast to North (2006, p. 524), my conjecture is the unintentional, inadvertent injustices can be attended once preserving justice at every level becomes a core social value. ² Rawls does discuss rogue institutions, as deviants, and civil disobedience as a means to correct ongoing social injustice (Morrison, 1984; Nagel, 2003). Injustices cannot continue indefinitely. The end result of unaddressed injustice is social instability: “The greater the lack of convergence, the greater the likelihood, other things equal, of instability with its attendant evils” (Rawls, 1971/1999, p. 505).

HBCUs in a Well-Ordered Society

Query whether HBCUs, or any type of minority serving educational institution (MSIs), are desirable institutions within a well-ordered society. Would society agree to the establishment of HBCUs from behind the veil of ignorance? If society operated in an ideal manner, then perhaps there would not be a need for HBCUs or other MSIs although institutions targeting disadvantaged persons could be envisioned in a Rawlsian frame. The discrimination that gave rise to MSIs would not exist although there may be persons otherwise handicapped to whom focused educational institutions could attend.

As explained by Nagel (2003), Rawlsian theory presumes the ideal, a society that is already just. Yet the environment in which HBCUs were established and continue to operate is not just. The first Black collegians attended predominantly White postsecondary institutions (PWIs; DuBois, 1900). However, private White institutions welcoming of Blacks—such as Amherst, Berea, and Oberlin Colleges—were few and far between and welcoming public institutions were nonexistent (Brown & Davis, 2001). Private HBCUs prior to the Civil War were established to provide “refuge from slavery’s first rule: ignorance” (Anderson, 1988; Wilberforce University, n.d., para. 1). Toward this purpose, the first HBCUS offered classical liberal arts education and imbued practical work skills, including that of teaching, agriculture, mechanical arts (e.g., Cheyney University, 2010; Lincoln University, n.d.; Shaw University, 2011; Wilberforce University, n.d.). Work skills were particularly necessary in the North as Blacks competed with newly arrived White immigrants, often unsuccessfully. In the South work opportunities for free Blacks were limited. These private HBCUs were often locally funded with the assistance of White missionaries as well as local Black churches, donors giving what little they had to further educational social uplift goals. Even later in the age of industry titans, philanthropic donations to private HBCUs by Phelps Stokes, Rockefeller, Carnegie and others paled in comparison to endowments given PWI contemporaries (Anderson, 1988; Sears, 2010).

With the passage of the second Morrill Act in 1890, 16 public land grant HBCUs were established across the South. As argued by Brown and Davis (2001), the passage of the act and subsequent establishment of institutions was in furtherance of a social contract, fulfillment of the Fourteenth Amendment’s equality provisions. In exchange for the establishment of separate higher educational institutions for Blacks, racial integration would not be exacted on public land grant institutions for Whites established under the first Morrill Act in 1862. While helpful in the education and training of scores of freed persons, the establishment of public HBCUs solidified a public system of higher education that was separate and unequal (Brown & Davis, 2001; Samuels, 2004). It was this system that Ayers and contemporaries filed suit against to rectify conditions for Black students in Mississippi.

Justice as fairness is an ideal theory as described by Rawls; but, to rectify past wrongs requires nonideal theoretical considerations. In Justice as Fairness: A Restatement (2001a), Rawls concedes that his original treatise does not directly deal with issues arising out of existing discrimination, such as the creation of HBCUs; yet,

Justice as fairness, and other liberal conceptions like it would be seriously defective should they lack the resources to articulate the political values essential to justify the legal and social institutions needed secure the equality of women and minorities. (p. 66)

From behind the veil of ignorance there would be no need for HBCUs or other MSIs, as given the arbitrariness of racism it would be irrational to order society along racial lines. Nevertheless, other institutions targeting the educationally disadvantaged could be validly conceptualized in a Rawlsian frame as education is a reliable means of social uplift, ensuring against the “worst of eventualities” (Rawls, 1971/1999, p. 154). Given our nonidyllic state, HBCUs were founded to advance the educational interests of an educational underclass, purposefully excluded from formal intellectual pursuits. HBCUs combated illiteracy among this class, prepared them for the work afforded in a discriminatory, intellectually limiting environment, and afforded the opportunity for further intellectual endeavors (Anderson, 1988). In the present century HBCUs continue to serve the needs of African American and underprivileged students (Allen, Jewell, Griffin, & Wolf, 2007; Brown & Davis, 2001; Kim & Conrad, 2006; Minor, 2008a; Palmer, Davis, & Maramba, 2010; Stewart, Wright, Perry, & Rankin, 2008; Suitts, 2003). In this vein, modern HBCUs seem to support Rawlsian theory.

Higher Education Desegregation in Mississippi

Rawls concludes that justice as fairness works when (a) “Everyone accepts and knows that the others accept the same principles of justice;” and, (b) “The basic social institutions generally satisfy and are generally known to satisfy these principles” (Rawls, 1999, p. 4). In the case of American (U.S.) Constitutional Law, the law of remedies serves these two ends. First, as articulated by Justice Marshall, constitutional injuries should be rectified, an affirmative act or an order to refrain from acting in a manner impinging on the rights of others, or by compensation such that the injured party is made whole (Dobbs, 1993; Gafford Muhammad, 2009; Marbury v. Madison, 1803). Second, the judiciary is the social institution that is appointed to satisfy this principle.

However, in the case of African Americans, the judiciary’s record is at best uneven (see, for example, Kluger, 1976; Patterson, 2001). The Ayers case is but another example of this unevenness (Brown, 1999; Gafford Muhammad, 2009), impinging on the public’s perception of judicial fairness (Brown, 1999), and undermining the workings of justice as fairness in a well-ordered society. Ayers and his coplaintiffs sought justice, to rectify separate and unequal conditions of public higher education for Mississippi’s Black student population. Instead, the remedy afforded Black students was made contingent on benefits to White students, those who as a class benefited from exclusive access and disproportionate appropriations to Mississippi’s historically White institutions (HWIs). In this vein, the Ayers settlement violates Rawlsian notions of justice as fairness.

Unitary systems of higher education were the law of the land prior to the Supreme Court’s general pronouncement in Brown v. Board of Education (1954) that separate was inherently unequal (McLaurin v. Oklahoma State Regents, 1950; Sweatt v. Painter, 1950). Given the chasm between the statement of the law and implementation, there was significant judicial activity in the wake of Brown (1954) toward ensuring state desegregation compliance in the K-12 sector.

Court action was joined by Congress with the passage of the Civil Rights Act of 1964. The purpose of the act was to end piecemeal, case by case approaches to desegregation, using federal financial penalties to induce compliance. Pursuant to Title VI of the act, the Department of Health, Education, and Welfare (HEW) in 1969 notified Southern states of its intent to enforce compliance in the higher education sector. However, the Nixon administration effectively nullified efforts toward genuine desegregation efforts by communicating to states that no penalties would be imposed (Avery, 2009; Samuels, 2004). With administrative efforts stymied, a Legal Defense Fund (LDF) independent of the National Association for the Advancement of Colored People (NAACP) sued, reigniting desegregation efforts in the higher education sphere (Adams v. Richardson, 1972, 1973). The first Adams suit implicated dual systems of higher education in 10 states and federal oversight eventually expanded to 19 southern and border states. Adams v. Richardson was considered resolved by the submission of public higher education desegregation plans to HEW in 1974. Most of these plans were viewed as defective, vague in the description of strategies to end segregation (Southern Education Foundation, 1974). Follow up litigation instructed states that the burden of higher education desegregation should not be imposed disproportionately on HBCUs or Black college students (Adams v. Califano, 1977). Federal court oversight ended in 1987 with a judicial pronouncement that with progress made, the LDF no longer had sufficient legal interest to continue pursuit of the claim (Adams v. Bennett, 1987).

Not waiting for federal resolution, four private actions were pursued against the states of Alabama, Louisiana, Tennessee, and Mississippi (Brown, 1999). The Ayers suit was filed against Mississippi in 1975, just 1 year after the Supreme Court ended active participation in dismantling K-12 segregation in Milliken v. Bradley. Just as K-12 desegregation was at the beginning of court enforcement’s end, the Ayer’s case with its calls for court oversight of higher education policy in Mississippi was just beginning (Samuels, 2004).

Jake Ayers was a sharecropper turned social activist in Mississippi, who had aspirations for his son to fare better in life. Like many African Americans of his day (Anderson, 1988, 2008), Ayers saw education as a route out of poverty. When Ayers’ son, Jake Jr., reached college age, he enrolled at Jackson State University in Jackson, Mississippi. However, the conditions at Jackson State were not up to the standards expected by this hardworking sharecropper. The 70-plus pages of statistics and tables comparing the conditions at Mississippi’s HBCUs and HWIs submitted to the court on behalf of the Ayers and his coplaintiffs attest to the gross disparities.

Note that the Ayers suit necessarily considered the impact of this injustice on an individual. This is because the American (U.S.) judicial system does not recognize injustices against groups as “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights” (Shelley v. Kramer, 1948, p. 22; see also City of Richmond v. J.A. Croson, 1989). Unfortunately, this perspective of the justices is limited. Notions of justice in fact implicate group dynamics, what is good for society broadly, beyond individual deserts (Hegtvedt, 2005).

In the Ayers suit, Ayers and coplaintiffs implicated the state for its maintenance of policies that encouraged segregated institutions, including the erection of branch campuses of historically White institutions near the HBCUs; disparately credentialed faculty and staff; inequitable resource allocations impacting physical plant conditions and academic offerings; and, the lack of Black representation on the State’s higher education governing board (Ayers v. Allain, ³ 1987, p. 1551). These allegations were backed by the State’s admission of wrongdoings on each of these accounts in the prior case of Meredith v. Fair (1962a, 1962b, 1962c; Brown, 1999).

Negotiations ensued for 12 years after the 1975 filing. Jake Ayers, Sr., died in 1986, 1 year before the case went to court. In Ayers v. Allain (1987) the district court judge dismissed the case on the basis that the State was not currently engaging in discriminatory practices. Additionally, the State could not be held liable for matters of individual choice, implying that Black students’ choices to attend historically Black institutions and White students’ choices of historically White institutions were independent of state action. According to the court, when “current state higher education policies and practices . . . are racially neutral, developed and implemented in good faith, and do not substantially contribute to the continued racial identifiability of individual institutions” then the State’s obligation is met (Ayers v. Allain, 1987, p. 1554). The plaintiffs appealed. The Fifth Circuit Court of Appeals reversed the district court’s ruling that it was the obligation of the state, under Brown (1954) and subsequent case law, to not only stop discriminating but also to actively eradicate the vestiges of discrimination “root and branch” (Ayers v. Allain, 1990, p. 752). This decision was appealed to the Supreme Court by the State of Mississippi.

The Supreme Court affirmed the Fifth Circuit’s decision, but in its discussion of the case provided language that would distort the purposes of the original litigation. The case was renamed United States v. Fordice as the U.S. Department of Justice took up the Ayers claim and Governor Fordice became the lead defendant. In that case the Supreme Court held that the State needed to alter practices “traceable to its prior system,” which “continue to have segregative effects,” are not educationally justifiable, and “can be practicably be eliminated” (U.S. v. Fordice, 1990, pp. 731-732). The Court then turned its focus onto the HBCUs and stated that in rectifying inequities within Mississippi’s dual system of higher education, the State should not create public boutique institutions for the state’s Black population (U.S. v. Fordice, 1990, p. 743).

The flaw in the Court’s logic here is twofold. First, the public HBCUs were not elite boutique institutions. In 1871, Alcorn State, the first HBCU in Mississippi, was founded as a land grant institution to satisfy the educational interests of the freedmen while preserving the University of Mississippi for Whites only (Samuels, 2004). By the admission of the school’s web site, the quality of education at Alcorn State was akin to that of a trade school. Jackson State was founded in 1877 as Natchez Seminary, a private institution geared toward the education of teachers and preachers. Natchez Seminary was taken over by the State of Mississippi in the wake of the Great Depression’s financial turbulence. Its curriculum was then cut down to a 2-year sequence and it was renamed the Mississippi Negro Training School (Blake, 1991; Samuels, 2004). Mississippi Valley State was founded in 1946 with the specific mission of “educating teachers primarily for rural and elementary schools and providing vocational training for Black students” (Petitioners Brief, U.S. v. Fordice, 1991, p. 4). Not elite boutique institutions at all, each of these institutions was founded to keep Black Mississippians with collegiate aspirations out of the historically White institutions.

Second, even if the HBCUs of Mississippi grew to become boutique institutions, they never discriminated against non-Black students in Mississippi. This argument is inherently flawed as disparate patterns of state appropriations ensured the underdevelopment of these institutions (Blake, 1991; Samuels, 2004). In addition, these institutions did not exclude White students from their enrollments, White academics from their faculty ranks, or receive a disproportionate amount of appropriations such that other, non-Black, higher education institutions in Mississippi would suffer from stunted growth (Samuels, 2004). Instead, the HBCUs in Mississippi were the creations and victims of discriminatory political action on the part of the State. Yet, as the dual system of higher education in Mississippi is scrutinized, these same institutions would be called on to rectify past practices and create a unitary system of Mississippi higher education (Ware, 1994).

The Supreme Court’s language discussing its perception of Mississippi’s HBCUs as boutiques gave rise to a context in which the Ayers settlement was reached. This ultimate disposition of the Ayers case partially addresses the concerns raised by Ayers and his codefendants. It does so by laying the onus of responsibility for Mississippi’s dual system of higher education on the HBCUs, in direct contrast to the D.C. Court of Appeals ruling in Adams v. Califano (1977). ⁴ According to settlement terms, the state will be in compliance having achieved unitary status when the HBCUs achieve 10% White student enrollments. This policy solution violates Rawlsian justice as fairness.

The Disjuncture Between the AyersCase and the Ayers Settlement

To delineate, the complaints of the Ayers plaintiffs were as follows:

While not all of these complaints were addressed, from 1995 through 2001 several policy actions were made to unify Mississippi’s segregated system of higher education. Each action required court approval. In sum, the settlement provides for US$503 million to be paid to remedy Mississippi’s segregated system of higher education. In this section, the details of this policy quilt are discussed in connection to the initial Ayers complaint.

Justice as Fairness and the Ayers Settlement

What binds a society’s efforts into one social union is the mutual recognition and acceptance of the principles of justice; it is this general affirmation which extends the ties of identification over the whole community. (Rawls, 1971/1999, p. 500)

If this Rawls’ premise is true, then a system of higher education unified under the terms of the Ayers settlement will fail at bringing closure to the legacy of separate and unequal higher education in Mississippi and community fissures will remain. While it is typical for the power-disadvantaged to perceive final outcomes as unfair (Cook & Hegtvedt, 1986; Stolte, 1983), Rawls’ premise of instability is demonstrated through the signatory process to the settlement, both in terms of who did sign the agreement and who refrained.

The first fissure to emerge comes from within the plaintiffs’ class. Chief among the original Ayers plaintiffs’ class not signing the agreement was Jake Ayers’ widow. Arguably, in terms of broader social justice her individual interests are not as pertinent as general societal interests and individual justice and diverge from group justice (Tyler, Boeckmann, Smith, & Huo, 1997). In fact, while Mrs. Ayers may hold out for the sake of grandchildren and progeny, with the maturation of her son to adulthood and concomitant educational attainment, her individual interest has attenuated with time.

From the analysis above one can objectively determine that the settlement to the group was inadequate in proportion to the harm incurred, at both the micro and macro levels. In addition, court attendance to the interest of the larger group over the individual is ironic given general American (U.S.) individualism, and court insistence that only individual people or corporations have rights, but not groups (City of Richmond v. J. A. Croson, 1989; Shelley v. Kramer, 1948).

The settlement proceeded through a fracture of the plaintiff class, the Ayers clan continuing to pursue their claim separately. Congressman Bennie G. Thompson, a college student in the mid to late 1970s, party to the original Ayers’ suit, part of the plaintiffs’ class, came to be representative of the class and signatory to the settlement. Thompson came of age and rose to power in the Mississippi legislature over the course of the case’s duration. In 1996, the district court named Thompson the lead plaintiff (Ayers v. Musgrove, 2001) and given Thompson’s position, constituent demands may have taken precedence over justice (Arnold, 1990).

There was support for the settlement from Mississippi’s HBCUs as well. Judge Neal Biggers, who presided over the case from its inception, was known to freeze desegregation funds (Ayers v. Thompson, 2004). The unpredictability made academic and capital planning challenging. In addition, amid concerns that the window of opportunity for any settlement was closing it was thought that getting some financial relief was better than getting none (St. John, 2000). A new agreement is not just if terms are meted out when parties are under duress.

The federal government also signed, as nationally the desire to seek closure of segregation’s era takes precedence over the principle of justice. One year after the Supreme Court’s Fordice opinion, Justice Scalia in the case of Freeman v. Pitts asserted,

At some time, we must acknowledge that it has become absurd to assume, without any further proof, that violations of the Constitution dating from the days when Lyndon Johnson was President, or earlier, continue to have an appreciable effect upon current operation of schools. We are close to that time. (1992, pp. 1463, 1464)

Within that same spirit, the district court in endorsing the settlement stated, “Perpetuating the litigation would further drain higher education resources, interfere with system administration, and strain relationships among university constituencies and public officials” (Ayers v. Musgrove, 2001, p. 3).

In this vein, finality trumped justice, yet the finality in this settlement will not achieve community healing or closure. As Rawls suggests, they sought redress at “the basic social institutions” and found that the courts were not willing “to satisfy these principles” (Rawls, 1971/1999, p. 4). Efficiency does not “serve alone as a conception of justice,” and should be, in fact, a second order consideration (Rawls, 1971/1999, p. 62). Therefore, settling a court case on the basis of finality, which is rooted in the principle of efficiency, fails to win the peace as it lacks a basis in justice. The Ayers family has continued their suit, but without the larger community backing their chance of success is nil. The Ayers’ attorney, Alvin O. Chambliss, was cut out of the award of attorney’s fees and has collected nothing for his decades of service to the Ayers’ family. While their sacrifices made the achievement of a unitary system of higher education a public benefit for all Mississippians, these individuals failed to gain the justice sought and justice gains for the group are attenuated. This situation is unstable per se. In the absence of a newer agreement, whether via legislation or court order, under a Rawlsian frame civil disobedience is justified should the injustice continue intergenerationally.

What is most enigmatic about this settlement is that the unintended beneficiaries include a class of Mississippians for whom segregation was designed. Pegging endowment funding to non-Black, White, enrollments treats all Mississippians as though they were limited by inequitable funding allocations and segregated enrollment practices. The principled objection to this policy design lies not in the quest to diversify Mississippi’s HBCUs, but that for Black students, the presumed class of beneficiaries of the original Ayers suit, to receive the benefit of the settlement remedy, non-Black, mostly White, students would have to enroll at the HBCUs. Moreover, to get those non-Black, mostly White, students, the settlement provides for the recruitment and scholarship support of non-Black students. Even the programmatic improvements and graduate program additions are designed to attract White students, as they constitute the majority of non-Black Mississippians. St. John (2000) calculates the share of settlement funding to the support of White students at 65%.

Rawls states that for justice to work “everyone accepts and knows that the others accept the same principles of justice” (1971/1999, p. 4). While this case is larger than the individual, Jake Ayers, Sr., would not have “accepted” and “known” that for Jackson State to be upgraded and supported in a manner comparable to Mississippi’s HWIs that non-Black, mostly White, students would have to compose a critical mass of 10% of Jackson State’s enrollments. The heirs of Ayers do not agree to it and continue to withhold their endorsement of the settlement primarily on this ground. Moreover, the general social interest of Black college students was shifted from the center to the margins, with the remediation of discrimination on them pegged to the interests of White college students.

Conclusion

Although it may sound trite, the whine of small children whose sense of justice is infringed is applicable to the Ayers case: “It just isn’t fair.” Jake Ayers, Sr., his family, and an entire community were certified to represent a class, a class of students, African American, who were channeled into separate and unequal schools of higher education in Mississippi. After nearly 30 years of litigation, the redress for this injustice is a settlement whose provisions require the achievement of non-Black enrollment targets at the institutions that were underfunded on the account of the color of skin of the population they served. To recruit these non-Black students, 65% of settlement funding is used to recruit and support non-Black, mostly White, students.

The corollary of this lapse in justice is that the lack of justice inhibits the ability of this community to heal. The Ayers family and their attorney continue to fight. Another generation of Black college students watches as improvements to Mississippi’s HBCUs is contingent on non-Black, mostly White, enrollments. In addition, instability within the state system of higher education in Mississippi continues as proposals to merge institutions and/or reduce program offerings are considered in the current budgetary climate. The settlement may be final, but closure remains elusive.