MD HBCU LAWSUIT TALKING POINTS
- In 2006 a coalition of students, alumni, and supporters of HBCUs filed a lawsuit against the state of Maryland alleging that Maryland had violated the 14th Amendment of the US Constitution, Title VI of the Civil Rights Act of 1964 and the Fordice Decision of the U.S. Supreme Court in duplicating the academic programs of Coppin State University, Morgan State University, University of Maryland Eastern Shore and Bowie State University at nearby predominantly white institutions.
- In October 2013 Maryland Federal Court Judge Catherine Blake ruled in favor of the HBCUs, stating that the state of Maryland continues to operate a segregated and unconstitutional system of higher education to the detriment of Historically Black Institutions.
- Further the judge ruled in November 2017 that bringing the system into compliance with the law requires the State to establish a set of unique and high demand programs to form niches or specialty areas; to cease and desist from the practice of unnecessary program duplication; and to work with a special master to identify the program niches to be established at each institutions and the associated costs. The state of Maryland chose to challenge Judge Blake’s decision and appealed the case to the United States Court of Appeals.
- In addition, Governor Larry Hogan proposed in March 2018, to settle the case for only $100 million over a 10-year period or an annual supplement of $2.5 million dollars per HBI.
- In 2001, Mississippi settled a similar case for three HBCUs (Jackson State University, Alcorn State University and Mississippi Valley State University) for $500 million which amounts to $850 million in today’s dollars. When adjusted to include a fourth campus, it would be in excess of $1 billion. It is important to note that Judge Blake indicated in her ruling that the duplication in Maryland was more pervasive than it was in Mississippi. Also, experts for the state had estimated the plan proposed by the HBI Coalition to cost $1-2 billion and the governor’s offer was only one tenth of the lower end of that estimate.
By Special to the AFRO -
March 17, 2018
“A billion is not enough,” said Senator Joan Carter Conway (D) District 43 at HBCU Night, a convening of legislators and students, presidents and alumni of Maryland’s four Historically Black Colleges and Universities (HBCUs).
Approximately 100 persons were in attendance at the standing-room only event. Every HBCU seemed to be represented in the audience, from “M” pins representing Maroon University of Maryland Eastern Shore, blue Coppin State letterman jackets, Bowie State’s black and gold scarves and Morgan State blue and orange Bears gear.
Maryland Sen. Joan Carter Conway, D-District 43, addresses HBCU Night’s “Withdraw the Appeal” event.
The presidents of Bowie State University and University of Maryland Eastern Shore, Aminta Hawkins Breaux and Juliette Bell, respectively, spoke to the conditions of each of their campuses on the ground, such as the immediate need for funding.
Many figures were bandied about in the Montgomery County room of Maryland’s House of Delegates, as stakeholders tried to prime the cost of decades of discriminatory practices towards Maryland’s four HBCUs: Morgan State, Coppin, Bowie and University of Maryland Eastern Shore.
But Gov. Larry Hogan’s February offer of $100 million was not found worthy of consideration.
“Prior to litigation, they owed the historically Black institutions 300 to 600 million dollars,” Conway said. “We’re 12 years down the road. It was anticipated, after litigation, that they owed the historically Black institutions a billion to two billion dollars. It was $2.5 billion and counting the last I looked at it.”
Maryland Sen. Joan Carter Conway, D-District 43, addresses HBCU Night’s “Withdraw the Appeal” event.
The Hogan administration’s offer of $100 million would be neither a lump sum, nor a down payment on future redress. Instead, it would be doled out over the next 10 years.
“It’s insulting and we would definitely not accept that. That’s $2.5 million per institution,” Conway said.
Besides real dollars, also at issue during the event were recent procedural matters stemming from Judge Catherine C. Blake’s ruling that the state and its HBCUs return to mediation in The Coalition for Equity and Excellence in Maryland Higher Education, et al. v. Maryland Higher Education Commission, et al.
HBCU Night’s theme, as printed on the agenda and emblazoned on the podium,. was “Withdraw the Appeal.”
Attorney General Brian E. Frosh has since filed an appeal to the Fourth Circuit that would stop the mediation process and allow the state to reargue the facts of the case.
Frosh is the only named party on behalf of the state in the final draft of the HBCU Night agenda, but Conway added nuance to Frosh’s role as both legal advocate and legal advisor to the governor and the General Assembly.
“He filed the appeal because that’s his duty to file the appeal,” Conway said. “The attorney general’s function for the state is to defend the state, so it is contingent upon what the governor says when they finally decide whether or not they’re gonna file those appeals.”
Dwight Pettit, a Baltimore attorney, took exception to this characterization.
“The constitution says the attorney general has to defend suits against the state of Maryland,” Pettit said. “Filing an appeal is not defending a suit. Filing an appeal is an affirmative action by the attorney general to stop a lower court.”
Unlike at the federal level, the Attorney General for the State of Maryland is elected directly by the people as opposed to appointed by the chief executive.
Beyond the obvious delays in redress of damages to HBCUs, Pettit saw a more “devious” motive in Frosh’s appeal.
“Regardless of what takes place in the Fourth Circuit, they’re trying to get an avenue to what? The United States Supreme Court,” Pettit said. “Now, the reason for that is because we are now talking about a Trump court, meaning there’s a 5-4 majority conservative court.”
The proceedings opened with a challenge: that each candidate in the Maryland governor’s race offer up a position paper to the convener of the Maryland HBCU Matters Coalition, Marvin Cheatham.
Of the two candidates in attendance, Ben Jealous and Rich Madaleno, only Madaleno had delivered a paper so far. Cheatham expressed confidence that one would be coming from Jealous. Jim Shea did not make an appearance but had delivered a paper, Cheatham said.
Madaleno had hard copies on hand and at the request of the AFRO.
Madaleno’s proposes an allocation of $1 billion for Maryland’s HBCUs beginning with contributions from the state’s $400 million surplus. Madaleno told the AFRO how this plan could have expansive salutary benefits to the Maryland education system at large.
“We need to improve our schools of education; let’s start by making that investment,” Madaleno told the AFRO. “We spend a lot of time talking about niche programs [so] let’s start by using the School of Education at Bowie, the School of Education at Coppin as the place where we start this effort to rebuild and transform our teacher education programs as an essential part of improving our K-12 system.”
While the Legislative Black Caucus awaits additional position papers, an informational picket of the attorney general’s office is scheduled for April 4.
Richardson Outlines Disparity in HBCU ‘Equality Lawsuit’ ( From the AFRO)
Week two of the remedial phase of the Maryland Higher Education Desegregation Trial, as the case is popularly known, featured the testimony of Dr. Earl Richardson, former president of Morgan State University and the man credited by many with transforming Maryland’s designated public urban university and the state’s largest HBCU during his almost 30-year tenure as president.
While the remedial or “remedy” portion of The Coalition for Equity and Excellence in Maryland Higher Education, et al. v. Maryland Higher Education Commission et.al. has thus far focused on how to create unique and unduplicated, high demand academic programs at Maryland’s HBCU’s, Richardson warned that academic programs must be considered in the larger context of the fiscal support needed to properly support and maintain the programs.
Disparate Investment – Disproportional Growth – HBCU’s and PWI’s
Richardson was quick to inform the court that while Morgan’s transformation under his tenure from 1984-2010 did include the development of new academic programs and facilities, the growth of the campus and its academic profile during his presidency paled in comparison to the evolution of the state’s predominately White institutions during the same period.
“Yes, Morgan’s budget expanded [during my tenure] but not proportional to the state’s predominately White institutions (PWI’s)” Richardson said.
“I maintain that the state’s funding formula is flawed,” Richardson said.
Richardson reminded the court that the State of Maryland established The Bohanan Commission with the goal of developing an equitable statewide formula for higher education funding. The Commission specifically recommended that HBCU’s be made comparable and competitive with other public institutions. The recommendations in the Bohanan Commission were never acted on by the state, Richardson said.
Additionally, in 2000, Maryland entered into an agreement with the US Department of Education’s Office of Civil Rights to come into compliance with the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. The state failed to meet its obligations under this agreement as well, according to the Lawyer’s Committee for Civil Rights Under Law.
“Until you address the disparity in funding and infrastructure, the disparity becomes memorialized and institutionalized,” Richardson said when attorneys asked how creating special academic programmatic niches and designing non-duplicative programs at HBCU’s would assist with desegregation.
Richardson told the court that like many HBCU’s the growth and development of the academic profile at Morgan involves a constant balancing act.
Unique Academic Programs Require Financial Support
“I used a strategy called selective enhancement at Morgan,” Richardson said explaining to the court the process he often used to start a new academic program without additional fiscal support from the state or an external entity.
“You can move money around to launch the program but it can’t sustain the program,” Richardson said supporting the premise that a re-allocation of academic programs must be partnered with the necessary funding to support new and expanded programs, an issue at the heart of the remedy phase of the trial. Richardson reiterated that quality academic programs need more than tuition and fees to support continued survival.
Both Juliette Bell, President of University of Maryland Eastern Shore and David Wilson, current president of Morgan State University mentioned their own battles with constantly juggling funds to ensure the survival of their academic programs. Both mentioned that they would have liked to receive more funding support or even feedback from the State.
“One of the problems we have is that these programs start without resources,” Bell said. “We know these programs attract students of all races, but we have to retain these programs,” Bell said.
Maryland’s current Commissioner of Higher Education, James Fielder admitted in testimony before the court last week that he had not met with any of the state’s four HBCU’s to discuss the proposals they submitted to the court to recommend suitable remedies as requested by Judge Blake.
In 2013, Federal District Judge Catherine Blake ruled that Maryland violated the constitutional rights of students at the state’s four Historically Black Institutions (HBIs) by unnecessarily duplicating academic programs at nearby white institutions. The plaintiffs in The Maryland Higher Education Desegregation Case in collaboration with the state of Maryland were ordered to develop a remedy in mediation.
Judge Blake’s 2013 decision offered a remedy that will include “expansion of mission and program uniqueness and institutional identity at the HBIs.” The ruling further stated “New programs at the HBIs will require specially trained faculty and may require special facilities and other support to be effective.”
Two years after the ruling in The Maryland Higher Education Desegregation case, the State failed to cooperate in a mediated agreement. Judge Blake ordered the parties to return to her courtroom in January 2017 for a remedial trial and a court-ordered remedy.
The remedial phase in the Maryland Higher Education Desegregation case is being watched nationally by other states who have previously and/or are currently operating under US Department of Education Civil Rights Division compliance agreements such as Georgia, Ohio and Texas.
The case is expected to conclude in four to six weeks.
Coalition v Maryland Talking Points: Remedies
- Background of the Case: In October 2013, United States Federal District Court Judge Catherine Blake concluded that Maryland deliberately operates a dual, and unequal system of higher education to the disadvantage of the State’s Historically Black Institutions. (HBIs). In particular, the judge concluded that the State has created a large disparity in the number of distinct and distinctive academic programs at the Traditionally White Institutions (TWIs) vs the Historically Black Institutions (HBIS). This disparity was 122 to 11 at the time of trial. The judge concluded that Maryland was worse than Mississippi of decades ago in terms of the dual system of academic programs.
2, How Did We Get Here? As the Court noted, Maryland’s historical documents showed that it had a policy of “maintaining the HBIs as inferior in every aspect of their operation.” A series of official reports chronicled the effects of the State’s policy through the Supreme Court’s 1954 decision in Brown v Board of Education. After Brown, the State took a number of deliberate steps to keep the HBIs marginalized, rather than integrating them into the overall system of higher education. Because of a number of deliberate steps the State has taken, the HBIs have fewer white students than they had in the 1970s, and the overall state policy propelled the growing of the Traditionally White Institutions while impairing the growth of the Historically Black Institutions.
Here are a few examples of what even the State acknowledged was a part of its “shameful history.” :
- In the 1960s, Maryland rejected the request of Morgan State University to be established as the first biracial university in the State.
- Maryland ignored the reports of various state commissions that recommended that Morgan State University be established as a research university in Baltimore, for students of all races. Instead, the State created a new University, UMBC, and gave it a similar mission that led to parallel programs at the two schools. It also brought the then failing private University of Baltimore into the Maryland system—all at substantial cost, and for no reason other than not wanting to “build –out” a historically black institution.
- In doing so, Maryland rejected the recommendation of its 1973 Cox Commission, which expressed concern about the effect that bringing the University of Baltimore into the public system would have on Coppin State and Morgan State and urged the State to create specialty academic programs at the HBIs that would allow them to attract a broad cross section of students.
- In the meantime, numerous State reports chronicled the enormous differential in spending on the TWIs compared to the HBIs, and recommended catch-up funding for the HBIs, which the State consistently refused to provide.
- The State engaged in a deliberate pattern of spending extra money to establish and enhance competing programs at nearby TWIs, even over warnings that this was hurting the HBIs, hampered by the State’s long-standing discrimination.
- In 2000, Maryland entered into an Agreement with the Office of Civil Rights wherein it agreed to stop undermining the HBIs and agreed to provide and pay for the kind of academic programs that would be distinct, and distinctive. But the State reneged on this promise.
- Over a long period of time, Maryland rejected the recommendations from various State commissions, including the 2009 Bohannan Commission, that recommended a substantial infusion of funds to make up for historical discrimination against the HBIs, including providing new academic programs. It also called for restructuring of the system of higher education that undermined the HBIs. The State also committed to making the HBIs “comparable to and competitive” with the HBIs , but reneged on that commitment as well.
- In at least one instance, Judge Blake noted that Maryland Attorney General’s office warned the State in 2005 that its conduct was unconstitutional. Still, the State continued to favor the Traditionally White Institutions.
- In Court, Maryland’s Attorney General’s Office argued that it was “ridiculous” to expect that any amount of funding or new academic programs would help the Traditionally Black Institutions rise to prominence in order to compete with the historically favored Traditionally White Institutions.
- Judge Blake’s Ruling: After a 6 week trial, the judge concluded that Maryland had not taken seriously its obligations to provide new academic programs to the HBIs. Specifically, the Court noted that the State had promised in the 2000 Partnership Agreement with the Office of Civil Rights to provide academic programs at the HBIs (of the kind that would attract students and funding) but “unfortunately the State did not follow through on this commitment.” The Court noted that 30 years ago the State had agreed to create 25 new programs at the HBIs but did not do either. As a remedy, the judge concluded that the State likely would be required to create academic niches at the HBIs, such as hospital facilities management, and indicated that it is likely that some of the programs illegally placed at the TWIs would need to be transferred to the HBIs. The Court ordered the parties to engage in mediation to see if they could reach a settlement.
- Maryland Did Not Engage in Good Faith Settlement and Engaged In Delaying Tactics: Maryland dragged out the mediation for 2 years. At one point it told the Court that “there was substantial overlap between the parties proposals” and “nothing was off the table. “ But that was a misrepresentation.
- After Two Years, Judge Blake Ordered The Parties to Present Remedial Plans
- The State’s Plan Shows Continued Marginalization of the HBIs
- The State’s Plan was written by its lawyers. They did not consult with anybody from the HBIs or with anybody from the Maryland Higher Education Commission.
- The Plan lacks any analysis showing that it would remedy the violation the Court found. It provided short term Summer Camps at the HBIs, the incredible notion being that any high school student who came to the campus would be impressed and apply. The State compared this proposal to a similar program at John Hopkins, even though its own witnesses admitted at trial that the facilities at the HBIs are not comparable to those at the TWIs.
- Maryland proposed a few Joint Programs, with less funding than the State probably has spent to litigate this case-- with half of the money going to the TWIs, even though its own witness admitted at trial that the State’s historical discrimination that left the HBIs unable to compete financially with the TWIs.
- The HBI Presidents publicly condemned the State’s proposal as “not even close”
- Judge Blake rejected the State’s proposal as “inadequate and not sufficiently specific ”
- Even Maryland’s own experts admitted the State plan was inadequate.
- Plaintiffs Remedial Plan:
- Is Based on the Maryland/OCR 2000 Partnership Agreement
- Is consistent with Maryland’s Commission Reports, like Cox Commission and 2009 HBI Panel Report
- Follows the guidelines set by the Court.
- Maryland’s Reaction to Plaintiffs’ Plan Is A Continuation of Its Marginalization of the HBIs
The State position essentially is that:
- Maryland’s HBIs cannot be desegregated because white students will not attend HBIs even with new, unique programs in areas of high student demand.
- Maryland has objected to the proposals set forth by the HBIs being introduced by trial.
- Maryland objects to HBI Presidents and faculty testifying about what kind of remedy they want, and have suggested that the HBI Presidents lack expertise to address the issues in the case.
- Maryland filed a motion (which it lost) to try to have UMES excluded from any remedy.
- Maryland is fighting to maintain the status quo.
- Maryland’s Overall Abandonment of Any Pretext of Equity and Equality
- Maryland’s 2009 State Plan For Higher Education committed to making the HBIs comparable and competitive with the TWIs, which Judge Blake noted was an admirable goal.
- But Now : The State has backed away from that goal and its current Plan for Higher Education groups the HBIs with Community Colleges
- The Promise Of Plaintiffs’ Remedial Plan: Plaintiffs’ plan would make the HBIs full partners in Maryland’s higher education system, and eliminate the wasteful and illogical duplication that was the heart of “separate but equal.” It would also allow Maryland to create model institutions of the kind that it agreed do to in its 2000 Agreement with the Office of Civil Rights, and in its 2009 State Plan for Higher Education. The court has stated the plaintiffs’ proposal of creating programmatic distinctive niches at the HBIs an idea that has promise.