Several years ago, a federal judge in Alabama referred in a court order to something he

called the Alabama Punting Syndrome. He wasn't recalling fondly (or frustratingly) the

infamous "Punt, Bama, punt" football game in which Auburn blocked two punts and returned them for touchdowns in its miracle win over Alabama.

No, he was referring to the state of Alabama's sorry record of refusing to correct

long-festering problems, resulting in lawsuits that led to courts ordering Alabama to fix those problems. In other words, state government too often punted its problems to someone else.

The judge, Ira DeMent, included a long list of booming punts: Gomillion vs. Lightfoot, which ended gerrymandering that had kept blacks from having a voice in Alabama government; Newman vs. Alabama, which mandated adequate medical care for state prisoners; Wyatt vs. Stickney, which ordered minimal standards of care for mental health patients; Lee vs. Macon County Board of Education, which ended segregated school systems; and R.C. vs. Hornsby, which forced Alabama to take better care of abused and neglected children.

Plaintiffs in the Knight vs. Alabama lawsuit, which was brought in 1983 to remedy segregation in higher education, now argue that the state has punted on fixing a tax system which, rooted in Alabama's 1901 Constitution, is racially discriminatory and unconstitutional.

It's a novel argument that U.S. District Judge Harold Murphy will hear Jan. 8. Plaintiffs claim the white supremacists who drafted the 1901 Constitution created a tax system that discriminates against blacks. They did this by setting a ceiling on state and local property taxes, requiring a vote of the people to change property tax rates and effectively barring blacks and poor whites from voting. As a result, plaintiffs argue, the state, through frequent shortages in the education budget stemming from the racially inspired limits on taxation, hasn't given blacks and whites the same higher education opportunities, as ordered by the court in 1991.

The plaintiffs argue that the lack of money has driven up tuition costs, which most directly affect blacks, who make up a disproportionate share of the state's poor. They ask Murphy to strike down the constitutional limits and order the Legislature to provide fair and adequate support for education.

It's an argument rooted in truth that makes perfect sense, but breaks down like the Crimson Tide's punt coverage in that 1972 classic when you start examining the state's higher education system. It's absolutely true the system has been guilty of racial discrimination. But - unlike most areas of state government starved by an unfair, inadequate tax system - it's hard to argue that higher education doesn't have a reasonable amount of money to do the job. Alabama ranks 21st nationally in per-capita spending on higher education, according to Governing magazine. The problem is how that money is spent.

Truth is, state leaders have made lousy choices, some of them driven by race. The result is a higher education system with too many institutions, too many duplicative programs and - through what amounts to a state-paid subsidy of out-of-state students – too many students.

The state's awful tax system, whether it is unconstitutional or racially discriminatory, had little to do with those choices. Instead, it was poor leadership. Unfortunately, that is not unconstitutional.

The Birmingham News

Dec. 31, 2003