By Thomas J. Sugrue
November 21, 2016
In 1986, the Republican-dominated Senate Judiciary Committee torpedoed Ronald Reagan’s nomination of Jeff Sessions to the federal bench. As sworn testimony there revealed, Mr. Sessions, then the United States attorney for the Southern District of Alabama, had referred to the N.A.A.C.P. and the Southern Christian Leadership Conference (founded by the Rev. Dr. Martin Luther King Jr.) as “un-American” and “Communist inspired.”
He had joked that he thought the Ku Klux Klan was “O.K.” until he discovered some of its members smoked pot, and had accused a white attorney who supported voting rights of being a race traitor.
|Jeff Sessions in court as Alabama’s attorney general in the mid-1990’s.|
TERRY ASHE / THE LIFE IMAGES COLLECTION / GETTY IMAGES
The details revealed in this hearing, troublesome enough to sink his nomination, are surfacing again, now that President-elect Donald J. Trump has selected him to be his attorney general. But it’s worth looking beyond those notorious hearings to Mr. Sessions’s more recent actions as well.
Eight years after his failed nomination, Mr. Sessions was elected Alabama’s attorney general. While he held the position for only two years — using it as a steppingstone for his campaign for the Senate — he left an indelible mark. He used the power of his office to fight to preserve Alabama’s long history of separate and unequal education.
Mr. Sessions became attorney general four decades after the Supreme Court struck down segregated schools in its landmark Brown v. Board of Education decision. In the intervening years, racial segregation diminished somewhat, but separate and unequal continued in another form. In 1956, as a way to sidestep Brown, Alabama voters amended the state Constitution to deprive students of a right to public education. Public support for school funding collapsed in its aftermath.
As a result, by the early 1990s, huge disparities in funding separated Alabama’s haves and have-nots. Alabama’s wealthiest school district (and also one of its whitest), Mountain Brook, in suburban Birmingham, spent nearly twice as much per student as the state’s poorest, Roanoke, in a declining manufacturing town about two hours southeast.
Poor schools often lacked even rudimentary facilities, including science labs. They struggled to pay teachers, even to repair dilapidated school buses. Half of Alabama’s school buildings lacked air conditioning. Underfunded schools had a particularly hard time meeting the needs of disabled students, whom they were required to support under federal law.
Nearly 30 of Alabama’s poorest school districts, with support from disability rights groups, civil rights organizations and the American Civil Liberties Union, filed suit against the state. The most vocal critics of school reform, including the far-right activist Phyllis Schlafly’s Eagle Forum, warned that it would bring “socialism” to Alabama.
After nearly three years of litigation, Judge Eugene W. Reese of the Alabama Circuit Court found the inequitable funding unconstitutional and ordered the state to come up with a system to remedy the inequity.
Attorney General Sessions led the battle against the decision. He argued that Judge Reese had overreached. It was a familiar war cry on the segregationist right: An activist court was usurping the power of the state’s duly elected officials to solve the problem on their own. For the next two years, Mr. Sessions sought to discredit Judge Reese and overturn his ruling.
In one of the twists of austerity budgeting in the mid-1990s, Mr. Sessions had laid off 70 lawyers in the attorney general’s office, and had to find outside counsel to handle the case. Lawyers working on contract for the office were to be paid no more than $85 per hour, but for the challenge to the equity case, the fee cap was lifted.
Mr. Sessions was lauded by fellow Republicans for his efforts. They saw funding inequities as part of the natural order of things, not as a problem to be remedied. And any remedy would entail either the redistribution of funds from wealthier to poorer districts or an increase in taxes. Both positions ran against the small-government, privatization dogma that Mr. Sessions promoted.
Advocates of school equity cried foul. “They’re asking for the last 50 years to disappear, as far as improving public education,” complained C. C. Torbert, the former chief justice of the Alabama Supreme Court and the lawyer for the poor districts, about Mr. Sessions and his allies.
Special-education and disability organizations were especially outraged: the poorest districts could not provide even basic services to students in need. If Mr. Sessions won, he would “consign an ever-growing number of Alabama schoolchildren to an unconstitutionally inadequate and inequitable education,” Justice Torbert added.
When Mr. Sessions insisted that as attorney general, he was representing the Alabama State School Board, the board members protested that he did not represent their position. No matter. He fought on.
Finally, in 1997, the Alabama Supreme Court upheld Judge Reese’s finding that the state’s educational inequity was unconstitutional. But, as Mr. Sessions (by then a senator) had hoped, the court left the remedy to the state’s increasingly conservative Legislature, which made only modest changes in the state’s school funding structure.
Alabama’s public schools, still underfunded, still separate and unequal, ranked near the bottom nationally, stand as one of Jeff Sessions’ most enduring legacies. It’s a troubling mark on the record of the man who is to be nominated to oversee the Department of Justice, the federal agency responsible for upholding America’s civil rights laws.
Thomas J. Sugrue, a professor of history and social and cultural analysis at New York University, is the author of “Sweet Land of Liberty: The Forgotten Struggle for Civil Rights in the North.”