Nina’s HBCU Legacy

Nina Olson, NCCU Class of 1980-something.

Its a little known fact that we wouldn’t have Nina Olson without Historically Black Colleges and Universities.  I’ll prove it.  But first, Nina can probably forget about a high ranking position in the DeSantis administration.  She was woke long before woke was a thing.  Bryn Mawr, her undergrad alma mater, is still a hotbed of women determined to fix the world that men, mostly, have jacked up.  When George Floyd was murdered, Bryn Mawr students organized themselves into a collective and went on strike until a list of what seemed like a thousand demands revolving around woke antiracism, were met.  A really smart guy, expressing his disdain for woke and critical race theory, mansplained the whole thing.  I guess it takes a Ph.D. from Harvard to understand how dangerous it all is.  He described Bryn Mawr’s President as spineless for talking and reasoning with the students until all the demands were met, to some degree or another.  There is a difference between not being a racist — most people aren’t, I’ll allow that much — and being an antiracist — again, most people are not antiracist.  They are too busy living their lives to be antiracist, its not because they are racist.  You can be not a racist by simply not being a racist, but you have to actively fight racism to be an antiracist.  I think Nina is an antiracist.  There are many ways to fight racism, one is simply to fight poverty that often correlates with race.  She has done that.

There is not much I can add to the innumerable pages devoted to one of the mothers of Low Income Taxpayer Clinics (LITC).  Janet Spragens, another Manchurian Candidate, except this one “indoctrinated” at Bryn Mawr’s sister college Wellesley, was the other mother.  Nina and Janet made a formidable team and when Janet died way too soon it must have been a bitter day for Nina.  But that is just a small part, I imagine, of who Nina Olson is.  Keith, one of her professors at Georgetown where she got her LLM (Tax), knows and has written more about her incredible journey than a blog post could even hope to emulate.  His articles, Taxation with Representation: The Creation and Development of Low-Income Taxpayer Clinics and Every Taxpayer Counts: Nina Olson’s Impact on Low-Income Taxpayer Clinics might better have been titled “Woman King” and “Wakanda Forever,” respectively, because they both depict a woman’s triumph over at least one of life’s problems afflicting poor people.  Lack of access to tax advice and representation is just one of the million cuts that eventually shorten lives of poor people.  

I think Nina knows what “access” really means and how life changing it is once we discard our silly notions of “elite.”  The one thing I did not know about Nina was that she is an HBCU graduate.  That’s right.  Fogg writes that she graduated from North Carolina Central University School of Law, one of six HBCU law schools in the country.  She had the chops to go to Duke or UNC, two institutions that, for all their egalite, could not be bothered with a flexible enrollment option for working folk. And from then on, she’s been a walking 501(c)(3) organization, even complying with the prohibition on campaign intervention and substantial lobbying, and eschewing private inurement in the form of much higher paying jobs.  Her Congressional testimony before Congress leading to federal funding for LITCs would be within one of the exceptions to lobbying, by the way, if she really were a tax exempt organization.  

I work at an HBCU law school and I know about access too. I have been trying for years — and before me Phyllis tried for years, and before that Reggie tried — to bring a low income taxpayer clinic to FAMU Law.  Reggie now teaches at Nina’s law school alma mater where you can bet they have a LITC.  The Service has been begging us, quite literally, to take the $100,000 seed money!  They send emails, they talk to us at conferences when they find out where we work, they are dying to give us money.   

FAMU Law was born when the state now known as “DeSantistan — where woke goes to die” — fought to keep African Americans out of its only state law school, my alma mater but only because I was born later, thankfully.  FAMU Law died, and FSU Law was born when Florida lost that effort.  FSU was new and was salivating over FAMU Law like Wyle E. over the Road Runner.  One reason was that old FAMU Law was bursting with enrollment, in no small part because it welcomed women when UF Law was almost exclusively men.  Soon after a token was admitted to UF Law, trucks literally pulled up to old FAMU Law, loaded up the books from the library and moved them across the street to Florida State University.  FSU Law has since reaped millions more in government and non-government support every five years than FAMU Law has received throughout its entire existence.  FSU is a top 30 law school, while FAMU can hardly get funding for vending machines that substitute for a student lounge.   But when I was on the meat market for the first time, a bunch of FSU women faculty resigned for lack of equity.  Its history, sorry not sorry  for telling it.  Anyway, we are 300 miles from the main campus so its not like our students can just walk to the Student Union or even a gym.

One thing you have to understand about HBCU’s.  They were borne of bad motives and begrudging support; but they are occupied and cherished by fierce loyalists who would “stand erect in a mud puddle . . . rather than lick boots in a parlor.” So despite their unequal funding, FAMU stakeholders rabidly oppose merger with a larger PWI even though Florida State virtually surrounds FAMU’s entire campus.   

FAMU Law was resurrected some 50 years after racism shut its access doors, but its growth has been stunted ever since.  In many ways HBCUs are indeed relative mud puddles compared to the pristine grounds and plentiful funding of other state universities.  I think our problem here at FAMU is that the university is so starved for resources that it, like poor taxpayers, hardly have time to worry about tax problems.  They are too busy fixing the plumbing in the dorms and worrying about a state law that makes it illegal to teach critical race theory!  At an HBCU, for Christ’s sake!  Sure the law is blatantly unconstitutional but that doesn’t help when DeSantis packs the governing educational boards with people literally terrified that I might suggest that the mortgage interest deduction has disparate impact on African Americans, or even that “buy borrow die” is something most African Americans will never have the pleasure of experiencing (buy and borrow, I mean). The terrified men and their handmaids have their hands on the purse strings.

So every time the LITC window opens, the rabbits in administration worry and fret so much that, well . . .  we have never been able to get the application in on time.  Just to be clear, we get the application done months ahead of time here at the law school  — we get all the information sought by the prior year’s application, and then simply add a few things to new questions that might be asked in the current application and ship that thing off to main campus at one minute after midnight the day the application period opens.  But its all a black hole from there.  The application period is short and we have never successfully obtained the signatures of people in Tallahassee before the window slams shut.  

The Supreme Court once ruled that HBCU’s have no constitutional rights themselves.  As institutions, HBCU’s are not entitled to equal protection of the laws, said the Court, the way . . . say a for profit corporation is entitled to the right to free speech.  I might explain the difference, but I would have to get into some critical race and this is DeSantistan.  Here is what Justice Thomas said about HBCUs in that case:

In particular, we do not foreclose the possibility that there exists “sound educational justification” for maintaining historically black colleges as such. Despite the shameful history of state-enforced segregation, these institutions have survived and flourished. Indeed, they have expanded as opportunities for blacks to enter historically white institutions have expanded. Between 1954 and 1980, for example, enrollment at historically black colleges increased from 70,000 to 200,000 students, while degrees awarded increased from 13,000 to 32,000. See S. Hill, National Center for Education Statistics, The Traditionally Black Institutions of Higher Education 1860 to 1982, pp. xiv-xv (1985). These accomplishments have not gone unnoticed:

“The colleges founded for Negroes are both a source of pride to blacks who have attended them and a source of hope to black families who want the benefits of higher learning for their children. They have exercised leadership in developing educational opportunities for young blacks at all levels of instruction, and, especially in the South, they are still regarded as key institutions for enhancing the general quality of the lives of black Americans.” Carnegie Commission on Higher Education, From Isolation to Mainstream: Problems of the Colleges Founded for Negroes 11 (1971).”

I think it undisputable that these institutions have succeeded in part because of their distinctive histories and traditions; for many, historically black colleges have become “a symbol of the highest attainments of black culture.” J. Preer, Lawyers v. Educators: Black Colleges and Desegregation in Public Higher Education 2 (1982).

Obviously, a State cannot maintain such traditions by closing particular institutions, historically white or historically black, to particular racial groups. Nonetheless, it hardly follows that a State cannot operate a diverse assortment of institutions including historically black institutions-open to all on a race-neutral basis, but with established traditions and programs that might disproportionately appeal to one race or another.

No one, I imagine, would argue that such institutional diversity is without “sound educational justification,” or that it is even remotely akin to program duplication, which is designed to separate the races for the sake of separating the races. The Court at least hints at the importance of this value when it distinguishes Green in part on the ground that colleges and universities “are not fungible.” Ante, at 729. Although I agree that a State is not constitutionally required to maintain its historically black institutions as such, see ante, at 743, I do not understand our opinion to hold that a State is forbidden to do so. It would be ironic, to say the least, if the institutions that sustained blacks during segregation were themselves destroyed in an effort to combat its vestiges.

We can let HBCU law schools starve, pretending that diversity in all institutions is here to stay even while the Supremes are about to say otherwise.  But if they die, we won’t have people like Nina to kick around anymore.  

darryll jones