FROM THE AFRO/January 6, 2019
By Deborah Bailey, Special to the AFRO
Fourth Circuit Orders Maryland to Negotiate With HBCUs
The US Fourth Circuit Court of Appeals ordered plaintiffs representing alumni and graduates of Maryland’s four HBCU’s to the negotiating table for a fourth time, Wednesday.
The order is another attempt at mediation with the State of Maryland to end a discrimination lawsuit that has lasted more than a decade.
After two hours of oral arguments before a three-judge panel, December 11, Judges Steven Agee, Stephanie Thacker and J. Harvie Wilkinson, wasted no time issuing an order January 2, for the parties come to an agreement by April 30, 2019.
“The Court is of the firm conviction that this case can and should be settled,” the court order stated. “Otherwise, the parties will likely condemn themselves to endless years of acrimonious and divicine litigation that will only work to the detriment higher education in Maryland.”
HBCU advocates widely hailed the appellate court order.
“The judges’ order is welcome,” said Michael D. Jones, partner at Kirkland & Ellis LLP, who along with Jon Greenbaum represented the Coalition for Equity and Excellence in Maryland Higher Education. The plaintiffs represent alumni, students and supporters of Bowie State, Coppin State, Morgan State and University of Maryland Eastern Shore. The Lawyers Committee for Civil Rights Under Law has represented the Coalition in what has become widely known as the Maryland HBCU Equity Case for the past 12 years.
“The Fourth Circuit reaffirms our long-standing commitment to mediate in good faith,” said David Burton, president of the Coalition for Equity and Excellence in Maryland Higher Education. “We trust that the State of Maryland will now do the same.”
“It certainly is not a big surprise to me that the Fourth Circuit is saying to the State: Come to the table with a serious proposal, and to the coalition, come to the table and decide to work it out,” said Morgan State University President David Wilson.
The Appeals Court placed restrictions on the parties urging them to move rapidly and make serious progress toward settlement. The fourth Circuit Mediator will “report his view of the good faith progress of this mediation every 30 days,” to the court. Only the court’s Chief mediator can recommend extension of the April 30 date for settlement talks.
HBCU advocates won’t be standing by quietly waiting for the April 30 deadline. The HBCU Matters Coalition, a statewide advocacy group marshalling support for Maryland’s HBCU’s, is gearing up to hold several events, making sure State officials feel the pressure to follow through on the Appellate Court order to make a serious offer that will settle the case.
“It is imperative that we state to Governor Hogan, Attorney General Frosh and the Maryland Higher Education Commission that ‘Justice Delayed is Justice Denied,’” said Marvin “Doc” Cheatham, president of the HBCU Matters Coalition.
HBCU Alumni and students across the state are planning to descend on Annapolis for a massive HBCU Day before the April 30 deadline.
“We will bring nationwide attention to MHEC and its historic economic exploitation and racial discrimination,” Cheatham said. The group plans a face-to-face take-over of the Maryland General Assembly to stress the urgency of a fair settlement.
In January 2018, Governor Larry Hogan issued a letter to the Maryland Legislative Black Caucus, offering to settle the HBCU Equity lawsuit for 100 million dollars. Hogan has offered the settlement money Yo the state’s four HBCU’s over a 10-year period. Each HBCU would receive 2 million per year; nowhere near is the amount needed to address the District Court finding of 14th amendment violations affecting HBCU students, according to lawyers for the Coalition.
Experts have indicated that a more realistic figure to address what the US District Court has said is a “discriminatory pattern of program duplication that put HBCU’s at a disadvantage” would be 1 to 2 billion dollars.
“We remain interested in reaching an agreement that will conclude the case in a way that is equitable for Maryland’s college students,” said Hogan spokesperson, Shareese DeLeaver.
Name: The Maryland Historically Black College and University (HBCU) Funding Act
BE IT ENACTED that the amount of __________ in increments of ______________ per year will be provided by the State of Maryland to the General Fund of the Historically Black Colleges and Universities (HBCU’s) in the State of Maryland. These HBCU’s being Morgan State University, Coppin State University, Bowie State University, and the University of Maryland Eastern Shore Campus.
Before getting to the preparation of the bill a legislative committee should be established to determine the fine points. The proposed Resolution to create such a committee is as follows:
BE IT RESOLVED that a joint House and Senate Legislative Committee be established to determine how to properly fund the Historically Black Colleges and Universities in Maryland. Those institutions being Morgan State University, Coppin State University, Bowie State University, and the University of Maryland Eastern Shore Campus. The revenue streams to be considered are the Maryland State Lottery; casino revenue from table games and video slot machines; and off track betting (OTB); and sports betting.
HBCUs vs Maryland | A 12-year court battle over racial equality enters next phase
The schools argue they are not getting a fair shot compared to the state's Traditionally White Institutions (TWIs).
Author: Michael Quander
Published: 6:10 PM EST December 4, 2018
Updated: 7:38 PM EST December 4, 2018
ANNAPOLIS, Md. -- A court battle between the State of Maryland and Maryland's four historically black colleges and universities (HBCUs) has gone on for more than one decade.
The schools argue they are not getting a fair shot compared to the state’s Traditionally White Institutions (TWIs).
The fight has been 12-years in the making and is not done yet.
Maryland’s HBCUs claim racial discrimination from the State of Maryland.
Representatives from Morgan State University, Coppin State University, Bowie State University, and the University of Maryland Eastern Shore formed a coalition and filed a lawsuit in 2006.
In court documents, The Coalition for Equity and Excellence in Maryland Higher Education claimed Maryland was violating state and federal laws.
The lawsuit alleged racial discrimination, unfair funding, and that TWIs were duplicating courses from HBCUs.
“There are so many of them that had benefited from stealing - and that’s the best way I can put it — stealing classes for the HBCUs and putting it on their campuses,” Dr. Marvin Cheatham, Sr. with the Maryland HBCUs Matters Coalition, said.
Dr. Cheatham has been at the forefront of advocating for the lawsuit.
“It says that here in the state of Maryland that racism is alive and well,” he told WUSA9.
Seven years later, in 2013, a federal judge ruled in favor of the HBCUs.
“Students who enter Maryland’s historically Black institutions – whether Black, White, or of other races – do not have an equal educational opportunity as those students who attend the state’s traditionally White institutions,” the initial opinion read.
In so many words, the judge said discrimination and course duplication was proven during the trial.
The judge ordered the HBCU’s coalition and the state to go into mediation to create niches or specialized programs and to work out the funding.
However, in 2016, the mediation failed.
The state and the HBCUs’ coalition went back to court in 2017, another plan was developed to find a remedy, and, then, the state filed for an appeal.
The appeal filing means everything was pause until an appeal judge reviews the case.
“Here we are years and years after Brown vs Board of Education. We’re having to fight for our rights again because racism still exists here in America,” Dr. Cheatham said.
The appeals case heads to court in Richmond on Tuesday, December 11th at 9:30 a.m.
However, HBCU supporters are petitioning Governor Larry Hogan to drop the appeal and honor the first judge’s decision.
The state’s Higher Education Commission responded to our request for comment with the following statement:
"Due to the fact this case is currently in litigation, the state is unable to comment on any portion of the Coalition for Equity and Excellence in Maryland Higher Education v. Maryland Higher Education Commission lawsuit at this time."
From the Afro
HBCUs ‘One Step Closer to Victory’
By Special to the AFRO - December 12, 2018
Bowie State University graduate student Elijah Bell Clarke sensed history was looming as he and a classmate drove to Richmond, Dec. 11, to listen to oral arguments before the U.S. Fourth Circuit Court of Appeals in the decade-long Maryland HBCU Equity Trial.
“The ramifications of this trial for HBCUs and my own education are critical. The importance can’t be overstated,” he said.
Students of HBCUs raise defiant fists to demand protection of their educational rights. (Photo by Deborah Bailey)
Inside the historic Lewis F. Powell Courthouse, Judges Steven Agee, Harvie Wilkinson and Stephanie Thacker jumped in right away, intensely peppering attorneys from the State of Maryland and the Maryland Coalition for Equity and Excellence for Higher Education with questions about the US District Court’s original liability finding in 2013 and the Court’s remedy issued in 2017, providing for a court-ordered administrator to oversee creation of unique academic programs at each of Maryland’s HBCUs.
“Maryland’s nine TWI’s (traditionally white institutions) are fully integrated and the HBI’s (Historically Black Institutions) have diverse enrollments,” Adam Snyder, chief council for the Maryland Attorney General’s Office said in opening remarks.
“The HBI’s are not integrated in the same way as the other institutions, are they?” Judge Thacker quickly interjected.
“How much is this going to cost,” questioned Judge Wilkinson, who openly expressed reservations throughout the two-hour proceeding about a range of issues from the effectiveness of the District Court’s remedial order establishing an administrator, to the legitimacy of the court’s role in mitigating the “effects” of discrimination.
“The remedy is highly unlikely to boost White enrollment at HBI’s,” Wilkinson mused.
“So, what would succeed?” countered Thacker. “Has the State been doing that?” Are you saying that nothing would succeed?” Thacker added.
Agee jumped into the fray, seeking clarification from the State on the types of issues being brought before the 4th Circuit Court. “You challenge both liability and remedy?” Agee questioned. Most cases appealed from U.S. District Court will end with the decision of their designated Appellate Court. The U.S. Supreme Court hears less than two percent of cases brought before them annually.
“It seems like the State did not come to the table at all on the remedy issue,” said Thacker. “What assurance do we have that the State would come to the table if we reverse this decision,” she asked?
Michael Jones and Jon Greenbaum, attorneys for the Coalition for Equity and Excellence (HBCU students, alumni and supporters) emphasized State Maryland Higher Education practices that continue to have a damaging effect on HBCU’s.
“The traceable policy is program duplication,” Jones told the appellate judges. “White students would not go the HBI if they could get the same [academic] program at a TWI,” Jones said.
Jones told 4th Circuit Court judges that the State of Maryland did not present an expert on academic programs during the trial. “The State is trying to re-litigate issues of liability. The consensus of experts in the field is that unnecessary program duplication hurts the HBI’s,” he added.
“The State had an affirmative responsibility to remove duplication of programs,” argued Greenbaum before the Court. “One of the things that is unique about Maryland is the system has been set up to unfairly disadvantage HBCUs.”
“I don’t see the endpoint in this,” said a frustrated Wilkinson. “I just see more supervision stretching out for years.”
Greenbaum ended by affirming that 10 years is not too long for students and alumni who have witnessed a violation of their 14th Amendment rights.
“You made a point that Maryland could have fixed this, but it hasn’t,” said Greenbaum. “Allow HBI’s to reach their potential, don’t duplicate their programs and then students would have a real choice,” he concluded.
Oral arguments, usually limited to 20 minutes per attorney, were extended far beyond the normal court time frame due to the high interest in the case demonstrated by Appellate Court judges. Judge Agee ended the afternoon with a final comment. “This is a case that should have settled long ago,” he said.
The usually hollow appellate court chambers were filled with more than 100 HBCU students, alumni, faculty, staff and advocates from Maryland’s four HBCUs along with friends and supporters from neighboring institutions in Washington DC, Virginia and North Carolina. Supporters left the courtroom with diverse views on what should come next.
“The National Association for Equal Opportunity in Higher Education is hopeful…that the 4th Circuit Court of Appeals will affirm the judgment of District Court Judge Catherine C. Blake and cease delaying judgments for HBCUs their students…and all beneficiaries of HBCUs,” said Lezli Baskerville NAFEO CEO who drove down from Washington to witness oral arguments
“There has been a lot of time and effort spent on this case over more than 12 years,” said Morgan State University President, David Wilson, who was also present for oral arguments. “I hope the parties will come together and reach a settlement in the best interest of Morgan State and all of Maryland’s HBCUs.”
“Today is one step toward victory,” said Marvin “Doc” Cheatham, chair of HBCU Matters Coalition who worked with alumni and students from Bowie, Coppin, Morgan and UMES to sponsor buses that packed the courtroom. “We still have a long way to go and must keep the pressure on,” Cheatham said looking ahead to an HBCU event at the Maryland State Capital in Spring of 2019.
FROM THE AFRO-Update on HBCU Coalition’s Lawsuit Against Maryland
By Marvin L. ‘Doc’ Cheatham, Sr., Special to the AFRO
In 2006, a coalition of HBCU students, alumni and other HBCU supporters filed a lawsuit in the Maryland Federal District Court against the State of Maryland alleging that the State had failed to make HBCUs comparable and competitive with their White counterparts.
Specifically, the Coalition for Equity and Excellence in Maryland Higher Education maintained that the State was in violation of the 14th Amendment of the U.S. Constitution, Title VI of the Civil Rights Act 1964 and the Fordice decision of the U.S. Supreme Court in duplicating the academic programs of Historically Black Institutions at nearby predominantly White campuses; limiting HBI missions; failing to provide appropriate facilities and underfunding the overall development of the four Historically Black Institutions (HBIs).
After a failed attempt at mediation of the issues, the case went to trial in January 2012. In October 2013, Judge Catherine Blake ruled that in maintaining the practice of unnecessary program duplication between HBIs and Traditionally White Universities, Maryland continues to operate a dual and segregated system of higher education, in violation of the U.S. Constitution and to the harm of the HBIs and their students. The judge asserted that the violation must be remedied and suggested that the Coalition and the state attempt to resolve it through mediation.
Dr. Marvin L. Cheatham
Unfortunately, the post-trial mediation– like the pretrial mediation– was not successful, so the Court convened again in February 2017 to hear arguments on appropriation remedies for transforming Maryland’s dual system of higher education into a unitary or single system of colleges and universities.
In November 2017, the judge issued an order providing for the establishment of new unique and high demand programs at each of the HBIs to form niches or specialty areas that would give the HBIs identities beyond their racial history. The judge’s order also provided for the appointment of a special master to work with the HBIs, Coalition experts and others in determining what the niches should be, any facilities that would be needed, and how much the enhancement effort would cost.
Included among the duties of the special master is the responsibility to monitor the implementation of the court’s remedial plan to ensure that it proceeds in accordance with a schedule to be approved by the court. The judge stipulated further that funding be provided for student financial aid, marketing and recruitment and the State was to abandon the practice of unnecessary program duplication which had led to the massive disparity in academic programs between Traditionally White Institutions and the HBIs.
Notwithstanding decades of petitions from the HBIs; the recommendations of several state commissions and outside consultants; the Fordice ruling by the U.S. Supreme Court and the November 2017 Federal District Court ruling against Maryland specifically, Maryland’s failure to accept responsibility for the harm it continues to do to HBIs and their students. State lawmakers seem to believe that the future of higher education in the State depends primarily on development of traditionally White campuses at the expense of its HBIs.
In January of this year Attorney General Brian Frosh appealed the judge’s decision to the 4th Circuit Court of Appeals. Subsequently, attorneys for the Coalition appealed the judge’s positions on HBI missions, facilities and funding. Meanwhile the Governor has since sent a letter to the Maryland Legislative Black Caucus offering $100 million over ten years to settle the lawsuit.
The irony is that attorneys for the State estimate the cost of the Coalition’s plan to fix the problem is between $1-2 billion and, for the Coalition to accept $100 million to settle as much as a $2 billion problem would be a downright betrayal of our students, faculty, alumni and others who have historically suffered the injustices of the State’s neglect.
This case has been going on for more than 12 years but the injustice to the HBIs and their students has endured since public education in the State began and the Hogan-Frosh appeal can only delay addressing the injustice. Therefore, we are calling upon the Governor, the attorney general and the leadership of the Maryland General Assembly to withdraw the appeal and begin immediately to implement Judge Blake’s order.
Dr. Marvin L. ‘Doc’ Cheatham, Sr. is a civil rights and election law consultant and convener of the Maryland H.B.C.U. Matters’ Coalition.