HBCU ‘Equality’ Lawsuit: Judge Hears Final Arguments

BALTIMORE-The question of whether Maryland perpetuates a system of separate and unequal higher education-after six years of debate, testimony, motions and presentments- is now in the hands of a federal judge in Baltimore.

At the end of courtroom action in a landmark suit Oct. 19, U.S. District Court Judge Catherine Blake offered little indication of which way she will rule. The question is: Has the state failed to end the influence of legal segregation from spending policies and practices for historically Black colleges and universities (HBCUs) in the state.

But the judge’s questions during final oral arguments may shed light on her approach to a ruling on the {Coalition for Equity and Excellence in Maryland Higher Education et al. v. Maryland Higher Education Commission} case, according to courtroom observers.

The October action came after a six-week bench trial that ended in February and was followed in June by an exchange of reams of documents as each side wrestled over the conclusions of law that surfaced from the expert testimony and reports and studies—some decades old—had been submitted during trial.

Blake interrupted the lawyers’ sparring to ask plaintiff lawyers for evidence of the link to segregation policies and voiced concern to the defense about program duplication in White institutions that stunted the evolution of similar programs in Black schools.

The first question to plaintiff attorney Michael Jones, the Kirkland and Ellis attorney representing the coalition, centered on whether the state’s current higher education policies are directly linked, or traceable, to the era of legal segregation.

“What do you have that shows traceability?” she asked. She also asked Jones how he would determine when a state has erased traceable connections between current policies and the era of legally sanctioned segregation.

To the defense, she asked about the creation of programs at White schools and institutions, especially in the Baltimore area, that mirror programs at Black institutions.

“I’m troubled by duplication,” she said early in the arguments in the suit. She is being asked to order the state to spend $2.1 billion on Morgan State, Coppin State and Bowie State universities and the University of Maryland Eastern Shore to build the programs to enhance their missions and develop a critical mass” of “unique, high demand programs” for all students.

She wondered whether Morgan has missed “the opportunity to become a high research university.”

She was referring to testimony delivered during the trial of what the lawsuit called “the unnecessary duplication of HBCU academic programs by geographically proximate TWIs [traditionally White institutions].”

Testimony by former Morgan State President Dr. Earl Richardson recounted how the Maryland Higher Education Commission (MHEC) was asked to approve the introduction of a masters in business administration degree program in 2005 operated jointly by Towson and the University of Baltimore.

He testified that Towson approached Morgan about jointly offering an MBA. Morgan declined on the grounds that it would be a duplication of an MBA program that already existed at Morgan. It would have violated the Supreme Court’s ruling in an affirmative action case involving Mississippi’s higher education system. 

Morgan then proposed a cooperative arrangement that would allow Towson students to spend three years at Towson and two years in a joint arrangement with Morgan in a program that would generate an MBA and an undergraduate degree. Towson rejected that approach, citing the preference for an independent degree authority.

The lawsuit was filed soon after that episode.

Courtroom observers said Blake’s duplication statement signals trouble for the defense. “She understands the creation of the program at the University of Baltimore is a duplication of Morgan,” said coalition adviser and veteran civil rights law professor John C. Brittain, a University of the District of Columbia professor after the arguments were delivered.

Coalition president David C. Burton agreed with Brittain. “I’m pleased and encouraged by her questions,” he said. “It’s about equitable funding for our institutions, Black and White. It’s hard to address that without looking back.”

The ruling could have a widespread impact on the funding landscape for HBCUs in the state and beyond, say higher education and civil rights experts.

A ruling for the plaintiffs “would be a major step toward eradicating the stain of segregation,” Pace McConkie, director of Morgan State University’s Bell Center for Civil Rights, told the AFRO.

McConkie was part of the audience that included Richardson and Dr. Thelma Thompson, the recently retired president of the University of Maryland-Eastern Shore. About 100 people crowded into the federal courtroom for the nearly four hours of legal arguments.

Jones said the state’s historically Black schools lag behind traditionally White schools with respect to selectivity, graduation rates, faculty salary and library holdings. And he pointed to inadequate facilities on historically Black university campuses including several science buildings, one constructed in the 1950s or 1960s.

Craig Thompson, a Venable LLP lawyer representing the Maryland Higher Education Commission, said the state of Maryland has provided more than enough funding to the Black institutions.

What’s more, Thompson said, there was no evidence that the current and former students bringing the case were hurt by attending historically Black schools. He said they had gone on to successful careers and specifically chosen historically Black colleges over other options.

“It was an embarrassing stain on this country’s history,” Thompson said of the era, adding that Maryland is not trying to forget that history. “Maryland’s defense in this case has been to suggest that it has eliminated the policies of that history, or of that era, and we’re moving forward.”

The state agreed in 1974 to devise a plan to achieve Black-White parity in higher education. But the federal Department of Education ‘s Office of Civil Rights told the state two years later that it had problems with the state’s implementation of that plan. As a result, OCR said it would initiate enforcement measures against Maryland to block its share of federal funds.

But Maryland filed a lawsuit instead, preventing OCR from holding up its money while other issues were resolved via the courts. Negotiations continued, however, and the state submitted another desegregation plan – this time in 1980 – and OCR, again, found it insufficient to bring Maryland into compliance with federal law.

Two years later, in 1982, a consent decree ended the litigation caused by the 1976 lawsuit brought by the state – and continuing negotiations resulted in Maryland and OCR agreeing on a desegregation plan in 1985.

The current suit, filed in 2006, seeks an estimated $2.1 billion to make the HBCUs “comparable and competitive” to such traditionally White institutions (TWIs) as the University of Maryland- College Park, University of Maryland-Baltimore County, Salisbury University and Towson University.

Richardson, who led Morgan State for 26 years, told the AFRO that stakes are high. “There are no new HBCUs. Each time we lose one, we are closing the door of higher education for thousands of students (and not just African-American students) who, if they had had an opportunity, could have had a brighter future,” he said.

Blake did not say when she will issue a decision. Attorneys for both sides said they do not expect a ruling until early 2013.


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HBCU 'Equality' Lawsuit: Judge Hears Final Arguments


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