Judge Blake Issued a Bold, Risky and Wise Opinion


Maryland's higher education system has a long and interesting history with racial issues. Although it is true that much of the nation has toiled in the vineyard of achieving equal opportunity in education, Maryland has a special place in controversies over such matters.

The most recent dispute that has landed in Federal court involves The Coalition for Equality and Excellence in Maryland Higher Education et al. v. Maryland Higher Education Commission. Judge Catherine C. Blake issued the decision in this matter from the United States District Court of Maryland a few weeks ago.

In that ruling, the Maryland higher education system was called into question because of issues with the allocation of certain popular academic programs to Historically White Institutions (HWIs) and alleged unfairness of financing those Historically Black Institutions (HBIs).

The suit was brought by individual students, alumni and others who complained Maryland engaged in unequal treatment at campuses like Morgan State University and Bowie State University. The dispute led to a six-week trial in January 2012. In October of that year, Judge Blake heard extensive oral arguments from the parties regarding the evidence presented before her in Court.

The coalition plaintiffs, seizing on a strategy reminiscent of that first used by Charles Hamilton Houston and Thurgood Marshall in the 1930s, built their case to demonstrate the inequality of higher education that had taken place for decades in the Maryland.

In her mammoth, 60-page opinion, Judge Blake outlined both the historical challenges in Maryland higher education and the current status of historically Black state institutions. Judge Blake's ruling, going back to 1890, described Maryland’s higher education system as operating both an exclusionary and a dual system from its beginnings, providing inferior schools for its Black citizens. She explained that despite several commission reports and studies throughout the decades that followed the 1930s “separate but equal” litigation, Maryland had never solved the problems of inequality in higher education.

Judge Blake pointed out that during the 1930s the state education system was clearly hostile to integration. The system and its regents made purchases of schools so that Black students would not seek to be admitted to the University of Maryland’s main campus at College Park. The system spent years fighting the admission of students to all parts of the University including its professional schools, instead opting to pay students tuition to “out-of-state” schools that would allow integrated education.

In this most recent case, Judge Blake identified program duplication as very harmful to the survival of historically black institution. She also cited the crowding of higher education institutions in the Baltimore area as presenting additional challenges over the decades since the civil rights movement.

In its most attention-getting language in the opinion, Judge Blake compared the situation in Maryland, because of program duplication, as being no better than that in the state of Mississippi two decades ago.

Media headlines across the country reported the case as a victory for the historically Black institutions. Citing statistical disparities in the number of nonminority students attending such institutions, Judge Blake made it clear that Maryland was falling short in its effort at desegregated higher education. During the trial before Judge Blake, the University System of Maryland chancellor stated that he believed the state should do better to advance its efforts in higher education toward minorities.

Judge Blake's opinion was a split victory. The state was found not to have discriminated in funding but the judge did question the defendant’s policies on program allocation to the various campuses. She indicated that some glimmers of hope were demonstrated between the relationships of Salisbury University a majority institution, with the University of Maryland Eastern Shore a (HBI). Of all the system schools, those two campuses have done the best job of sharing programs. Of course the geographical isolation of those campuses makes such efforts easier to accomplish.

On the one hand Judge Blake did not order money damages for the plaintiffs in the suit. However, she did make a finding that the state system needs to correct what she determined to be an unfair distribution of popular programs. She found that the HBIs did not receive an adequate share of popular programs that would help strengthen HBI enrollment.

The opinion offers several challenges for the future. Competition from private schools, online training, and other innovations in providing higher education have changed the choices that people of all backgrounds have available.

Technology and the educational needs of different disciplines and regions have caused programs to come and go, depending on the demand for specialized skills. At the same time the achievement gap for minority communities has widened and financial access to higher education has become more difficult for everyone. The allocation of scarce public higher education dollars has called for demands for greater scrutiny of all public universities by Maryland officials.

Judge Blake’s invitation for the parties to mediate a resolution to the dispute was a sound suggestion; she noted that “if mediation was not successful further proceedings will be scheduled so that the court may evaluate any competing proposals.” Mediation makes sense, because recent Supreme Court opinions have called into question how much power a federal judge can use to solve local problems in the area of education. Like two judges of the Old Testament, Solomon, who threatened to divide a baby in order to identify the true mother or Deborah whose courage brought decades of peace to the land of Israel, Judge Blake used a measure of wisdom by requiring the parties to seek resolution to this difficult problem before she takes direct action. The parties should try to settle this issue in a higher education world that is a moving target. Delay in resolving this case may be costly to the collective future and stability of higher education in Maryland at all of its public institutions.

Jose? Anderson is a professor of law at the University of Baltimore School of Law.

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Judge Blake  Issued a Bold, Risky and Wise Opinion

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