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"Tax Aversion: The Sequel"

May/June 2008 issue of Poverty & Race

Since publishing “Tax Aversion: The Legacy of Slavery,” by Robin Einhorn, in the March/April 2008 Poverty and Race, PRRAC has learned of an innovative new lawsuit that attacks the constitutional property tax provisions of the State of Alabama on the basis of their discriminatory origins.

In P&R, Prof. Einhorn argues that the United States’ anti-taxation tendencies stem not from the radical artisans of the Boston Tea Party, but from the oligarchic slave-holding elites of the South. The provisions of the Alabama Constitution pertaining to ad valorem (“according to value”) taxes place limits on the amount of taxation municipalities, counties and referenda can raise. By “persuading the non-slave­holding majorities that the weak government and constitutionally restrained tax power were actually in the interests of the non-slaveholders themselves,” Prof. Einhorn wrote, “….[m]ajorities voluntarily renounced the right to regulate their society by majority rule. Giving up the essence of self-government, they celebrated the outcome as democracy.”

In India Lynch, et al. v. The State of Alabama, CV-08-S-0450-NE, plaintiffs are seeking a declaratory judgment from a federal court that the property tax restrictions in the Alabama Constitution violate Title VI of the Civil Rights Act, 42 U.S.C. § 200d et seq., and the United States Constitution. This novel approach derives from the U.S. District Court for Northern District of Alabama’s reasoning in a recent Alabama higher education case, Knight and Sims v. Alabama, 458 F.Supp2d 1273 (N.D. Ala. 2004). Knight was brought by long-time civil rights attorney James Blacksher in 1981, claiming that Alabama’s policies governing higher education tended to perpetuate its formerly de jure segregated university system. Although the court in Knight did not find a continuing connection between the discriminatory property taxes and the current higher education system, the court observed: “the current ad valorem [property] tax structure is a vestige of discrimination inasmuch as the [state] constitutional provisions governing the taxation of property are traceable to, rooted in, and have their antecedents in an original segregative, discriminatory policy.”

In non-legal terms, Knight states that Alabama’s response to Reconstruction, Brown v. Board of Education and other attempts to provide equal access to Blacks in education were met with hostility from the white establishment. To ensure that the Black population would continue to be undereducated and disenfranchised, Alabama placed constitutional limits on how much money could be raised by property taxes for education within the state. This ensured that black schools would be underfunded, even if many white students also suffered. Such tax provisions are still in place today. The plaintiffs wanted the tax structure to be held as having a segregative effect on Alabama’s colleges and universities. Although, as noted above, they were denied because the court found no nexus between the higher education system and the tax structure, the current lawsuit seeks a declaratory judgment affirming the findings in Knight about the underlying property tax system, thereby helping to eliminate an excuse to keep taxes low and schools underperforming.

Notes:

Attorney for the plaintiffs James Blacksher plans to post updates on this case at www.knightisms.com. He can be reached at jblacksher@ns.sympatico.ca.

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