Mississippi’s Landmark HBCU Lawsuit Shows the Reach of Inequity Beyond Borders and Across Generations
FROM HBCU DIGEST, Published onSeptember 19, 2017, AUTHOR JL Carter Sr.
Five years from now, the State of Mississippi will make its final payout to its three public historically black universities as mandated by a Supreme Court desegregation decision ordered in 1992 and implemented by the state a decade later.
But issues persist for Alcorn State University, Jackson State University and Mississippi Valley State University, all which have worked hard to qualify for every cent of funding attached to increasing white student enrollment, maintaining standards for admission and achievement, and providing an educational safety valve for the state’s abysmal record on primary and secondary education for its students.
Unlike the schools, Mississippi hasn’t invested the same energy in keeping its court-mandated promise; a $35 million endowment which was supposed to be secured with funds raised by the IHL board is short about $34 million. And money which was supposed to add to the HBCUs’ usual appropriations has now become a resource to replace funding lost through budget cuts.
“We are continuously looking at initiatives to bring in other race students, but the challenge is where we are located in the Mississippi Delta,” said La Shon Brooks, (Mississippi Valley State University’s) chief of staff and legislative liaison.
“It’s getting to a point where our employees will be affected if we don’t have something to take the place of the funds that’ll go away,” added Brooks.
Mississippi will have paid more than $500 million over 30 years to amend for generations of racist and segregative policies which stunted the expansion of these three HBCUs. In some ways the judicial remedy has worked – Jackson State is one of just five historically black institutions classified as a Carnegie “higher research activity” institution. And along with Alcorn, JSU has had several years with increased enrollment and has established competitive programs in diverse fields.
But gaps in the Ayers settlement, which HBCU advocates challenged even 20 years ago, mean more than just missing funds needed to spur marketing, recruitment and talent acquisition in faculty and staff. It also means that the foundational case for current and future litigation involving HBCUs will have this precedent upon which to base future settlements.
In Maryland, a federal judge is poised to rule on how the state used program duplication to create more harmful effects for its four black colleges than Mississippi ever did with disparate funding. The Ayers case was a critical element in the plaintiffs’ case, which made the argument that its judgment didn’t go far enough in reversing harmful effects of separate but equal systems of higher education for black and white students.
Maryland is betting on the case going to higher courts, and possibly the Supreme Court, where they hope to draw the empathy of a largely conservative bench. But even with political leanings on their side, case law and popular culture project a bitter loss for the Free State – but they will have a healthy blueprint for how to avoid harsh penalties thanks to Mississippi’s appropriation shell games.
The money will eventually end in Mississippi, and its three HBCUs will have a recent history of budget cuts that if sustained would be catastrophic without the salve of the Ayers lawsuit funding and underdevelopment endowments. How their infrastructure and operations survive without it remains a critical question; but just as important is the notion of how Maryland and other states contemplating inequity lawsuits will deal with the Mississippi model of marginalizing HBCUs, even with a $500 million price tag attached?
Coalition of Maryland HBCUs seeks $577 million to drop lawsuit, avoid ‘litigating for the next 10 years’
By Talia Richman
Baltimore Sun |
Sep 10, 2019 | 6:29 PM
Coppin State University in Baltimore is one of four historically black colleges and universities in Maryland that stands to benefit if a coalition of advocates working on their behalf and Gov. Larry Hogan's administration can reach a financial settlement to a court case that has dragged on for years.
A coalition advocating for Maryland’s four historically black universities sent a letter to elected officials Tuesday offering to settle its 13-year-old lawsuit against the state for $577 million — more than five times the governor’s last public offer.
That figure is less than Mississippi paid in a similar lawsuit, when accounting for inflation, coalition attorney Mike Jones said. In 2002, Mississippi paid more than $500 million to settle its landmark Ayers case, which successfully argued the state had denied black residents equal education opportunities by discriminating against its three HBCUs.
Advocates call Maryland’s drawn-out legal battle the most important higher education desegregation case in decades. It hinges on the claim that state’s university system long fostered segregation by allowing well-funded academic programs at traditionally white universities to undermine similar ones at Morgan State University and Coppin State University in Baltimore, Bowie State University and the University of Maryland, Eastern Shore.
Despite a 2013 court decision finding that Maryland’s actions indeed perpetuated segregation — and a 4th U.S. Circuit Court of Appeals ruling that stated the case “can and should be settled” — the two sides have struggled to reach a remedy. The latest round of court-ordered mediation ended in July, without a resolution.
The coalition sent a letter Tuesday to members of the Maryland General Assembly and the state’s congressional delegation, proposing the state pay $577 million, “spread over a reasonable time period."
“Hopefully, this will start up the discussion again,” Jones said.
If the parties can’t reach an agreement, the case’s future lies with the federal appeals court.
Del. Darryl Barnes, chairman of the Legislative Black Caucus, called the coalition’s proposal both “doable” and “fair.”
The Prince George’s County Democrat says he will ask members of his caucus, the state Senate president, state House speaker and representatives from the governor’s office to gather and “figure out how we’re going to come to this number and settle it."
The coalition of HBCU advocates believe past offers to be insufficient, saying it would take several hundred million dollars to make substantial change.
The money would enable HBCUs to develop unique, in-demand academic programs at each of the four HBCUs and to hire quality faculty members to run those programs. Only then, lawyers argue, will these schools be able to fairly compete with traditionally white schools and attract students of all races. In addition, the letter states, the money would be devoted to providing more scholarships and ramping up marketing efforts “to offset the state’s decades of stigmatization of the HBCUs.”
“Now is the time to bring justice to Maryland’s black colleges,” Jones wrote.
Gov. Larry Hogan, a Republican, indicated last year he’s open to spending up to $100 million over a 10-year period to settle the lawsuit.
Robert Scholz, the governor’s legal counsel, wrote in a February 2018 letter to the Legislative Black Caucus that that offer represented “a serious, multiyear commitment which we believes goes well beyond what the law requires.”
“Governor Hogan wants to bring this litigation to an end in a manner satisfactory to all parties, and in the best interests of all Marylanders, especially current and future HBI students," Scholz wrote.
“Governor Hogan wants to bring this litigation to an end in a manner satisfactory to all parties, and in the best interests of all Marylanders, especially current and future HBI students," Scholz wrote.
Any other offers from the state would have been made during confidential mediation sessions.
"We negotiated in good faith, making a generous offer and dramatically increasing that offer,” Hogan spokesman Michael Ricci said in a statement, noting that the governor has dedicated $1.15 billion in funding toward Maryland HBCUs.
A panel of 4th Circuit judges determined earlier this year the case ought to be settled. If not, they wrote, “the parties will likely condemn themselves to endless years of acrimonious, divisive and expensive litigation that will only work to the detriment of higher education in Maryland.”
That’s part of why Jones said his firm wanted to send Tuesday’s letter. He hopes to bring discussions out into the open, and propel the debate forward publicly.
“Litigating for the next 10 years is not in the schools’ interests,” Jones said. “It’s in their interests to get the resources and programs that can make a difference.”
EMERGENCY LEGAL UPDATE
on the Court-Ordered Mediation in the
Maryland H.B.C.U. Lawsuit
by Attorneys representing the
COALITION FOR EQUITY AND EXCELLENCE
IN MARYLAND HIGHER EDUCATION
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INCLUSIVE OF THE ENTIRE STATE OF MD
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Baltimore, Maryland 21239
P.M. Smith, Pastor
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Talking Points for Comments on Status of HBI Coalition Case
The July 30 deadline for a court-directed mediation of the lawsuit brought by a coalition of students, faculty, alumni and other supporters of Maryland’s four historically Black universities has expired without an agreement and the case has returned to the 4th Circuit Court of Appeals for a ruling. During a hearing in December 2017, the appellate court had said that the case could, and should have been resolved earlier and if the two parties were unable to resolve their differences neither side may be happy with a decision from the court.
A lower court ruled in October 2013 that Maryland was operating a dual and segregated system of higher education in violation of the U.S. Constitution and in November 2016 that court ordered the State to address the violation by establishing at each HBI a set of unique and high demand programs with additional funding for scholarships, recruitment and marketing. The Coalition is simply asking that the state of Maryland abide by the remedy ordered by the court inclusive of the prohibition against unnecessary program duplication in the future.
Academic programs are the heart and soul of a college or university and the court found that Maryland’s Traditionally White Universities have more than a 10 to 1 advantage over the Historically Black Institutions in unique and high demand programs. The severity of the program disparity, coupled with the lack of student financial aid and support for recruitment and marketing, negatively affects the ability of HBIs to recruit a critical mass of faculty, secure appropriate facilities, increase and diversify student enrollment, retain and graduate students, secure government and corporate funding and maintain creditable standing within the academic community.
Contrary to a recent proposal providing for the combining of Coppin University and Baltimore Community College with the University of Baltimore under a new governing board, the issues facing the HBIs are unrelated to structure. Otherwise, those issues would have been addressed in the mid-sixties when HBIs were made part of the Board of Trustees for State Colleges, or in the late eighties when HBIs were incorporated into the University System of Maryland. Moreover, the Court reasoned that such mergers were not educationally sound.
The problem continues to be Maryland’s policies, practices and politics for the approval and distribution of programs and related resources among its Traditionally White and Historical Black institutions which has given rise to the segregated system of higher education in Maryland. The court has ordered a remedy for addressing the continuing harm done to HBIs under the dual system of higher education and the State appears determined to preserve the status quo.
Absent the court’s remedy, the injury to Maryland’s HBIs and their students will persist, and their future will continue to be uncertain. The HBI Coalition refuses to concede such a dismal future for the HBIs and wait anxiously for a ruling from the 4th Circuit Court of Appeals. Meanwhile HBI students, alumni, faculty, staff and other supporters must continue pressuring Governor Larry Hogan and other lawmakers to spare us the rhetoric and settle the case. It is not enough for our governor to defend the City of Baltimore and our state against the viral attacks of the President of the United States; he must instead transform our HBIs into engines of community change and stability comparable to TWIs in other communities.
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From Maryland Matters: By Danielle E. Gaines -July 31, 2019
Del. Darryl Barnes (D-Prince George's), chairman of the Legislative Black Caucus. Photo by Danielle E. Gaines
Another round of court-ordered mediation has again ended without resolution in the 13-year case by a coalition of historically black colleges and universities against the state of Maryland.
The most recent deadline – imposed by a panel of three U.S. Fourth Circuit Court of Appeals judges in January – passed on Monday.
The judges had urged the state and the Coalition for Equity and Excellence in Maryland Higher Education to settle the case, “otherwise, the parties will likely condemn themselves to endless years of acrimonious, divisive and expensive litigation that will only work to the detriment of higher education in Maryland.”
Jon Greenbaum, chief counsel for the Lawyers’ Committee for Civil Rights, which represents the coalition, confirmed Tuesday that there was no resolution during the mediation period, but said he remains confident the HBCUs would prevail in court.
The coalition of HBCUs – Morgan State, Coppin State, Bowie State and the University of Maryland Eastern Shore – first filed the case against Maryland in 2006, alleging that the state had failed to dismantle vestiges of segregated higher education, including by underfunding the four institutions and by allowing traditionally white state universities to continue creating new degree programs that were duplicative of programs at the historically black schools.
In U.S. District Court, the coalition prevailed in claims that program duplication had perpetuated the segregation of Maryland’s higher education system.
As a remedy, the coalition wanted the state to stop allowing duplication of educational programs, the development of new and unique programs at HBCUs and more state funding for capital improvements on HBCU campuses. Maryland offered financial settlements which the coalition found inadequate without a concrete plan for implementing reforms.
The state appealed the District Court’s finding in 2017. The case was argued at the Fourth Circuit in December 2018 and, before deciding the matter, the judges placed the case in mediation a few weeks later.
Attorneys on both sides said Tuesday that they could not comment specifically about what happened in mediation. The Maryland Attorney General’s Office declined to comment.
Greenbaum said now that the case is back in the judges’ hands, he expects “to continue to meet with success in this case.”
“What we’re hoping for is that this case can get resolved not too long from now and that the HBCUs will be in a more competitive place,” Greenbaum said.
It’s hard to predict when the case will move forward. No formal notice had been filed with the court about the failed settlement discussions as of 9 p.m. Tuesday.
In an emailed statement, a spokeswoman for Gov. Lawrence J. Hogan Jr. (R) said “the administration is always open to discussions in an effort to settle this case in a fair and equitable manner.”
In 2018, Hogan said he was willing to direct as much as $100 million to HBCUs over the next 10 years to settle the lawsuit. Last year, he discussed the case with members of the Legislative Black Caucus, who considered the prior offer inadequate.
On Tuesday, Del. Darryl Barnes (D-Prince George’s), chairman of the caucus, said resolution of the case will continue to be a top priority for the LBC. Barnes said he was going to reach out to Hogan to see if it’s possible to work as a group to settle the claims.
“It’s something I hope the governor will take a stance and step in and do something about,” Barnes said.
An ideal resolution would include an analysis of duplicative degree programs, an agreement on which schools should offer which programs and some financial award, he said.
However, Barnes is worried that a high-dollar settlement for HBCUs is becoming less likely, especially with the legislative focus on funding the multi-billion-dollar annual price tag to fully implement Kirwan Commission recommendations for improving K-12 education in the state.
“At this point, I’m very disappointed with how things are turning out,” Barnes said about the still-lingering lawsuit. “We have been fighting for our HBCUs and to settle this lawsuit for quite some time. And we will continue to make this a high priority of the Legislative Black Caucus.”
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Senate President Miller urges resolution of HBCU lawsuit against Maryland over state's treatment of schools
Speaking Thursday from his seat in the Senate chamber, Miller suggested that the state give Bowie State University money to establish a law school, help fund the purchase of additional land for Morgan State University in Baltimore and reward the University of Maryland, Eastern Shore for a successful physical therapy degree program by creating another sought-after academic curriculum there.
Mike Miller, a Democrat, urged Republican Gov. Larry Hogan to come up with a meaningful offer to settle the suit.
“This is our message to the second floor,” Miller said, referring to the location of the governor’s office in the State House. “We’re here to help. You come up with a program. You come up with a way to solve this issue. We need a win-win.”
A 12-year-old lawsuit that advocates have called the most important higher education desegregation case in decades “can and should be settled,” according to a panel of judges on the 4th U.S. Circuit Court of Appeals.
The case has pitted a coalition of advocates* of historically black colleges against...
Hogan has offered $100 million in extra funding to the universities over 10 years, but HBCU supporters called that inadequate.
“We are in the process of mediation and remain interested in reaching an agreement that will conclude the case in a way that is fair and equitable for Maryland’s college students,” Hogan spokeswoman Shareese Churchill said Thursday in a statement.
Representatives from the state’s four historically black schools — Morgan State and Coppin State universities in Baltimore, Bowie State and the University of Maryland, Eastern Shore, in Princess Anne — have accused the state of allowing well-funded programs at historically white universities to undermine similar programs at the HBCUs.
The lawsuit was filed 12 years ago, and the courts ruled in 2013 that the state’s actions perpetuated segregation. A federal court ordered mediation to work toward remedies. The court set a deadline of April 30.
The governor has declined to discuss the details because the court has ordered the negotiations to be conducted confidentially. However, Hogan has said he hopes to resolve the lawsuit, supports HBCUs and has offered them increased funding since he’s been in office.
In a letter to Del. Cheryl D. Glenn, chair of the state’s...
Miller said he hopes the case can be settled without an appeal to the U.S. Supreme Court.
“We need to resolve it right now,” he said.
Members of the Legislative Black Caucus of Maryland have urged Hogan to come up with what they call a meaningful offer to settle the lawsuit.
And the Maryland Democratic Party issued a statement Thursday, also calling for a resolution.
The HBCUs “have long played a critical role in our state by educating generations of African-Americans,” said, Maya Rockeymoore Cummings, the party’s chairwoman. “The Maryland Democratic Party fully stands with our HBCUs, and we believe that swift resolution of the lawsuit would be ideal for all parties involved.”