The state of Maryland faces a stark choice with respect to its treatment of Historically Black Colleges and Universities (HBCUs). A federal court recently ruled that Maryland’s educational policies are unconstitutional and violate the 14th Amendment’s equal protection clause because they deprive its four HBCUs of academic programs that are unique, high demand and high quality. Maryland must now choose either to begin implementing an appropriate remedy or to appeal the decision by challenging the fundamental principle that HBCUs should be entitled to any constitutional protection at all.
In the historic lawsuit brought by the Coalition for Excellence and Equity in Higher Education on behalf of students and alumni of Maryland's four HBCUs — Morgan State University, Bowie State University, Coppin State University, and The University of Maryland Eastern Shore — federal judge Catherine Blake ruled on October 7, 2013, that Maryland policies are "detrimental" to HBCUs and that “remedies will be required,” including “the wide use of resources to enhance the quality of current and newly developed programs” at the HBCUs, and the likely transfer to the HBCUs of academic programs illegally placed at the Traditionally White Institutions (TWIs).
Judge Blake’s decision highlights Maryland's practice of undermining HBCU programs in a way that exacerbates the disparity in the number of unique, high-demand academic programs at TWIs vs HBCUs: 122 to 11. These are the kinds of programs that create prestige and attract students. This disparity, the judge noted, was “highly suspect in light of the history of Maryland’s system of higher education.”
Historically, while southern states practiced “separate but equal,” Maryland made no pretext of equality. Its 1947 Marbury Commission declared: “the state has consistently pursued a policy of providing higher education facilities for Negroes which are inferior to those provided for whites.” That policy included establishing “inferior” academic programs at HBCUs and steering non-black students toward TWIs.
While focusing on current policies, Judge Blake described the steps Maryland took, even after the Supreme Court outlawed separate but equal in Brown v. Board of Education in 1954, to avoid making HBCUs competitive institutions, attractive to all students. In 1968, for example, one of the HBCUs, Morgan State University, petitioned to be the state’s “first multiracial university,” but as Judge Blake noted, "the state ultimately rejected this proposal,” and instead created a new school, the University of Maryland at Baltimore County (UMBC). The state "made very large investments" in UMBC and Towson University, TWIs, at the expense of Morgan State, the HBCU.
Discriminatory state policies propelled these two TWIs from a third of Morgan’s enrollment in 1953 to approximately three times Morgan’s size by the 1970s. Then, rather than expand its HBCUs, Maryland brought into the University System of Maryland the bankrupt University of Baltimore. For decades, state policy steered preferred programs to TWIs.
Beginning in 1969, the Department of Education’s Office of Civil Rights (OCR) first threatened to cut off federal funding and then engaged the state in negotiations off and on over its treatment of the HBCUs. Finally, in 2000, in an agreement or consent decree with OCR, Maryland agreed to remedy the disparity in high-demand programs and to stop undercutting HBCU enrollment by unnecessarily duplicating their programs at historically favored TWIs.
But, noted Judge Blake, “unfortunately, the state did not follow through on this commitment.” Moreover, in 2006, the Maryland Legislature passed a bill to protect HBCUs, but the bill was vetoed by Republican Governor Ehrlich.
To highlight the damage that unnecessary program duplication does to the HBCUs, Judge Blake cited specific examples, such as a 73 percent decline in white graduate enrollment at Coppin State University, and a 67 percent decrease at Bowie State University. The judge described how enrollment in Bowie State University's masters in computer science “dropped precipitously,” from 119 to 24 after the state duplicated the program at a TWI rather than support the program at Bowie.
In this respect, Judge Blake found Maryland to be comparable to, and in some cases worse than Mississippi, which lost a similar lawsuit decades ago. In a particularly aggressive defense, Maryland argued, through the Office of the Attorney General, that placing popular academic programs at the HBCUs, would attract students of all races and thus cause the schools to “lose their identities as black institutions." Alternatively, Maryland argued in open court, that the idea of truly diverse institutions was ridiculous,” and a “field of dreams.” Finally, Maryland argued that HBCU students had no constitutional right to sue because they were not “injured” by the constitutional violations, in the sense that anyone who chose to attend an HBCU knew what they were getting. But Judge Blake rejected all of these arguments, particularly describing the "no injury" arguments as "surprising and disappointing."
So Maryland now faces a choice: to embrace the court’s ruling and become an example for the nation by creating transformative HBCUs with the kinds of academic programs that HBCU presidents have long advocated for, or to continue in its fight to maintain policies that undermine its HBCUs. Ironically, former Lieutenant Governor Republican Michael Steele recently wrote an op ed article praising the judge's ruling while the current democratic Governor, through the Attorney General's Office, has suggested that the state will seek to persuade appellate judges to adopt Justice Scalia's view that HBCUs deserve no constitutional protection . Which position the state ultimately will take is an open question.
--Michael D. Jones is co-chair of the Lawyers Committee For Civil Rights Under Law and lead counsel for the plaintiffs in The Coalition for Excellence and Equity in Higher Education v Maryland. He is a partner in the law firm of Kirkland & Ellis LLP.