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.
FROM BLACK PRESS USA- ORAL ARGUMENTS SCHEDULED FOR HBCU-MARYLAND INEQUALITY CASE
November 25, 2018 Stacy M. Brown
For little over a decade, the alumni from Morgan State University, Coppin State University, University of Maryland Eastern Shore and Bowie State University have been locked in litigation with the state to dismantle what they say is racial segregation, causing a federal judge to appoint a special official to craft a plan to increase diversity at Maryland’s historically black colleges.
By Stacy M. Brown, NNPA Newswire Correspondent
A coalition of HBCU students, alumni and others from Maryland are planning to pack the Fourth District Circuit U.S. Court of Appeals in Richmond, Virginia next month for oral arguments in a decades-old lawsuit over inequality in public higher education.
“We are reaching out and calling on at least 200 HBCU supporters to join us in Richmond on Dec. 11,” said HBCU Matters Chairman, Marvin “Doc” Cheatham.
The coalition has chartered buses to leave from each of the four HBCU campuses in Maryland on the morning of the arguments.
“The students are very actively advocating on behalf of all four of the HBCUs in Maryland. Morgan State has held two rallies thus far and the University of Maryland Eastern Shore had their Rally Saturday the 17th,” said Zattura Sims-El, one of many advocates for HBCUs in Maryland.
“Bowie and Coppin are currently planning rallies for each campus. The students from all four universities are communicating with each other for one purpose and that is the have Gov. Hogan withdraw the appeal, he and only he has the power and authority to do so,” Sims-El said.
A coalition of alumni from Maryland’s four HBCUs have been involved in a lawsuit since 2006 with the state.
Coalition members argue that Maryland has underfunded Morgan State University, Coppin State University, Bowie State University and the University of Maryland Eastern Shore, and allowed other state schools to duplicate their programs, placing pressure on enrollment.
Published reports suggest that over the years, the coalition has called for increased funding and merging the University of Baltimore with Morgan State, the state’s largest public historically black school, to achieve parity.
A year ago, a federal judge asked the state to remedy the lack of investment in Maryland’s HBCUs, ordering the state to establish a set of new, unique and high-demand programs at each historically black institution, the judge declared.
Despite that court order, settlement talks have stalled, and Maryland hasn’t accepted the court-ordered remedies for HBCUs.
“While the Maryland HBCU case is still in mediation, due to the State’s refusal to accept the judge’s ruling, the Maryland HBCU Matters Coalition is hard at work,” Cheatham said.
In 2013, Judge Catherine Blake, U.S. District Court of Maryland, found the state in violation of 14th Amendment rights of its HBCU students and alumni.
Her ruling said Maryland continues to operate vestiges of a de jure system of segregation, specifically by continuing a longstanding practice of duplicating academic programs offered at HBCU’s, rather than investing in making the HBCU programs attractive to a diverse range of students.
By June 2017, after initial failed mediation between HBCU advocates and the state of Maryland, Blake ordered parties back into court.
In November of 2017, Blake reportedly issued an order providing for an administrator known as a special master to coordinate a comprehensive plan ensuring Maryland’s HBCU’s would be home to high quality academic programs.
“The Plan should propose a set of new unique and/or high demand programs at each HBI, taking into account each HBI’s areas of strength, physical building capacity and the programmatic niches suggested by the plaintiff’s experts,” Blake wrote in the November 2017 ruling.
According to The Afro, which has covered the story more extensively than any other media outlet, in December 2017, state Attorney General Brian Frosh gave notice that the state would appeal Blake’s ruling.
Frosh, who in prior years urged a mediated resolution to the long-standing HBCU lawsuit, attempted to explain why he’s now extending the legal battle.
“It’s my job to defend the state when it gets sued,” Frosh told HBCU protestors who rallied outside his office in the months following the State’s appeal.
In January, Gov. Larry Hogan, further complicated the State’s message toward HBCU’s by writing to Del. Cheryl Glenn, former chair of the Maryland Legislative Black Caucus (LBC), offering a $100 million-dollar settlement offer, according to The Afro.
While the LBC supports HBCU advocates, the Caucus is not an official party to the lawsuit.
Hogan’s $100 million proposal would be split between Bowie State University, Coppin State University, Morgan State University and the University of Maryland Eastern Shore, The Afro reported.
His settlement offer stipulates a 10-year allocation period and relieves the State of responsibility for court costs. Each institution would receive approximately 2.5 million per school, per year.
However, the estimated cost of the Coalition’s Plan to remedy the imbalance in quality academic programming offered at HBCU’s is in the $1-2 billion range.
Hogan’s offer also falls short of the $500 million settlement between the State of Mississippi and plaintiffs representing Mississippi’s three public HBCU’s almost 20 years ago, back in 2001, ending higher education desegregation litigation dating back to the 1970’s in that state.
“The decision by Frosh to appeal the decision from Federal District Court Judge Blake has elevated this issue to the US Court of Appeals for the 4th Circuit,” said Maryland advocate Brandon F. Cooper.
“If that Appeals Court also upholds the District Court decision, Frosh could decide to appeal again and then it lands in the U.S Supreme Court. Any decision from the U.S Supreme Court would impact every HBCU, not just those in Maryland,” said Cooper, a member of the Maryland Republican Party Executive Committee.
Cooper said the matter counts as a bipartisan issue and he brought the HBCU attorneys in to testify before the Republican Caucus in the Maryland legislature.
“HBCUs have long enjoyed bipartisan support in states, Congress and the White House,” Cooper said. “However, President Donald Trump has sent mix signals on his continuance of the historically bipartisan support of HBCUs,” he said.
One HBCU alumni said he knows well what a battle between a historically black institution and the state looks like.
In an email, Matthews “Billy” Wright recalled a 50 year-old incident at Coppin State.
“As a [Student Government Association] officer in 1968 we, as student representatives, organized and executed a successful four-week boycott of the campus at Coppin State College and moved the student body to an off-campus site to complete the school year,” Wright said.
“Professors joined in the teaching process of seniors teaching juniors and so on to demonstrate and challenge the state that Coppin, as an HBCU, was being denied funding at the level of the University of Maryland, Towson, and Salisbury. Our cause attracted television anchors, and the governor-to-be Marvin Mandel,” he said.
“Through their efforts and our four-week boycott, Coppin SGA officers were provided time to address the Maryland Legislative Assembly. Student demands were considered, funding promises were made and in some instances kept, seniors and all students completed their graduation and matriculation for the year. We were respectful of the campus and President Parlett L. Moore. The ’68-’69 classes were true to their goals.”
HBCU Advocates Prepare for Oral Arguments in Maryland Inequality Case
November 27, 2018 | :
by Tiffany Pennamon
The Fourth District Circuit U.S. Court of Appeals will hear oral arguments next month in a 12-year-old education inequality lawsuit between the state of Maryland and a coalition from the state’s four public historically Black colleges and universities (HBCUs).
After submitting closing briefs last month after the state appealed District Court Judge Catherine C. Blake’s November 2017 ruling, the coalition from Morgan State University (MSU), Coppin State University (CSU), Bowie State University (BSU) and the University of Maryland Eastern Shore (UMES) are now calling for students, alumni and other HBCU advocates to attend the oral arguments on Dec. 11 in Richmond, VA.
Coalition members are calling for a minimum of 200 HBCU students, alumni and advocates to fill the courtroom and plan to have charter buses leave from each of the four institutions, according to The AFRO.
“Morgan State has held two rallies thus far and the University of Maryland Eastern Shore had their rally Saturday the 17th. Bowie and Coppin are currently planning rallies for each campus,” HBCU advocate Zattura Sims-El told The AFRO. “The students from all four universities are communicating with each other for one purpose and that is the have Gov. [Larry] Hogan withdraw the appeal, he and only he has the power and authority to do so.”
Plaintiffs in The Coalition for Equity and Excellence in Maryland Higher Education v. Maryland Higher Education Commission case – which has been ongoing since 2006 –argue that Maryland has operated a “de jure system of segregation in higher education.”
In 2013, Blake ruled that the state violated the 14th Amendment rights of HBCU students and alumni by allowing predominantly White institutions (PWI) to duplicate in-demand academic programs at HBCUs instead of investing in already existing programs.
And in November 2017, with both parties unable to come to an agreement, Blake ordered that the state appoint a “Special Master” that would develop and monitor the implementation of a 10-year remedial plan for HBCUs. The plan outline included the development of unique and/or high demand programs compatible with each HBCU’s areas of strength and building capacity; annual funding for each HBCU for marketing, student recruitment, financial aid and other initiatives for five to ten years; and the requirement that any new program at a PWI be reviewed by the Special Master so that it does not harm programs at any Maryland HBCU.
Gov. Hogan offered $100 million to settle the lawsuit in February and announced plans to appeal Blake’s order for a remedial plan. Michael D. Jones, a partner at Kirkland & Ellis LLP and counsel for the HBCU coalition said the offer was a “step in the journey to remedying decades of programmatic disparities at Maryland’s four [historically Black institutions],” but not the end of the journey, he said in a statement at the time.
Now, the case will be argued in the Fourth District Circuit U.S. Court of Appeals with the potential to go as far as the U.S. Supreme Court should either party appeal the next court ruling.
Matthew B. Fraling, legal counsel and government relations officer at Coppin State, said that it is faculty members like Dr. Charlotte Wood who are keeping students informed about the case. While there has been no formal town hall meeting on campus, faculty pass along information about the case to students and there are plans for students and other supporters to take a chartered bus to hear oral arguments next month, Fraling said.
The case involving Maryland’s public HBCUs has similarities to previous segregation and programmatic duplication lawsuits in Mississippi, Tennessee, Alabama and Louisiana. Should another appeal be filed and this current case go to the Supreme Court, the highest court’s ruling would have significant implications for the more than one hundred HBCUs in the country.
“I would suspect that it’s going to be broad-reaching,” Fraling said.
Tiffany Pennamon can be reached at email@example.com. You can follow her on Twitter @tiffanypennamon.