MONTGOMERY, Ala. – Fifty years after the U.S. Supreme Court (search) decision outlawing school segregation, an Alabama law mandating racially separate classrooms is still on the books.
Gov. Bob Riley (search) and others concerned about the state's image are urging voters to approve a constitutional amendment on Nov. 2 to strike the long-unenforceable language from the state constitution. They say such laws are a painful reminder of the South's divisive past, and make Alabama look bad when it comes to drawing in new businesses.
But the amendment ballot has opponents, including former Chief Justice Roy Moore (search), who is suspicious of possible hidden agenda: a huge tax increase.
"This is the most deceptive piece of legislation I have ever seen and it is simply a fraud on the people of Alabama," said Moore, best known for his refusal to remove his Ten Commandments monument from the state judicial building.
Supporters of the measure say it is not about taxes — but about erasing the last vestiges of Jim Crow provisions from Alabama law.
"This is a no-brainer. For that kind of language to still be in the constitution is disgraceful, and we certainly need for it to be removed," said Ken Guin, the Legislature's House majority leader.
The debate also might offer a glimpse into the 2006 race for governor. Moore, who was ousted last year over the Ten Commandments dispute, is getting encouragement to challenge Riley in the Republican primary for governor in two years. So far, he has made no decision.
When Riley took office in 2003, his first official act was to appoint a commission to suggest ways to improve Alabama's constitution.
The panel recommended cleaning out the now-unenforceable Jim Crow language: a requirement for separate schools "for white and colored children," and poll taxes, designed to keep blacks from voting.
The segregated schools language became unenforceable in 1954, when the Supreme Court's Brown v. Board of Education decision unanimously ruled that "separate but equal" schools were unconstitutional.
The 24th Amendment to the U.S. Constitution outlawed poll taxes in federal elections in 1964, and a U.S. Supreme Court decision two years later did the same for state and federal elections.
When the current proposal got to the Legislature, Guin and fellow Democratic Rep. James Buskey expanded it to add a third provision. They proposed taking out part of a constitutional amendment that Alabama voters added in 1956 in an attempt to get around the Brown decision.
Guin said all they did was follow up on a 1993 decision by a state judge who struck down that portion of the 1956 constitutional amendment.
The ruling came in state's "equity funding" case, where the judge ruled that Alabama's schools weren't adequately or equitably funded and that the state must make dramatic improvements.
In Moore's view, the proposed change is an attempt to get around a 2002 state Supreme Court decision that shot down a massive school spending plan that was supposed to implement the 1993 ruling. The school spending plan would have required an estimated $1.7 billion in new taxes. In that decision, Moore wrote a separate opinion saying the judge lacked the authority for his 1993 decision.
Moore said the proposed constitutional amendment is "a classic example of bait and switch," with the focus now on school funding rather than Jim Crow language.
Gabriel J. Chin, a University of Arizona law professor who helped write a recent study on Jim Crow laws, said many Southern states besides Alabama still have unenforceable segregation-era laws on the books, and referendums on erasing them are not always a sure thing.
"Some people still support segregation. They won't say it in public, but they will say it in the voting place," he said.
Four years ago, Alabama repealed a ban on interracial marriage, but 40 percent of the state voted in favor of the ban.
Bobby Segall, a Montgomery attorney who handles many education court cases, said the state's image is on the line on Election Day. In the past, industrial recruiters for some states have used old laws from competing states to portray the competition negatively.
"It makes the state look horrible if it doesn't pass," he said.