Challenge State’s Meager Attempts to Provide Viable Solutions to Address Racist Practices

(Updated 06/16/2017) – Lawyers representing students and alumni from Maryland’s four HBCU’s ended last week’s HBCU equity trial with powerful arguments justifying the methods and costs to dismantle Maryland’s discriminatory system of higher education before U.S. District Court Judge Catherine C. Blake.

Attorney Michael D. Jones boldly defended the transfer of several academic programs from Maryland’s traditionally White institutions (TWI’s) to the state’s four HBCU’s (Bowie State University, Coppin State University, Morgan State University and University of Maryland Eastern Shore) as part of the formula needed to place Maryland’s HBCU’s on par with the state’s TWI’s.

“The court has broad authority to come up with a remedy that is broadly impactful,” Jones said.  

“The point I want to make is the state basically, in our view, is exaggerating the alleged harms,” he said.

Jones said academic program transfers in Maryland’s higher education system were needed to destroy the core of the unequal system the court found in 2013. “If we think about it, transfers—we get it—are the most difficult things to do because, frankly, it comes the closest to dismantling the dual and unequal system,” he said.  

Jones went on to argue that the prior landmark case in higher education desegregation, United States v. Fordice (1992) erred in underestimating the issue of academic program duplication in its consideration of a remedy to end desegregation in Mississippi’s higher education system.

Attorneys for the state of Maryland argued vehemently against academic program transfers from TWI’s to HBCU’s saying that program transfers would do “irreparable harm” to the TWI’s that would lose them. “These are the worst and most destructive things that can be done,” said state’s attorney Cyril V. Smith.  “They’re not transfers; they’re shutdowns.”

But Jones argued that the joint University of Baltimore-Towson State MBA program, which duplicated an already existing program at Morgan State, was effectively discontinued. “The joint M.B.A. program was discontinued with no claim of harm,” he said.

Attorneys for the coalition of HBCU students and alumni who filed the suit also argued for first right of refusal for new high-demand academic programs being offered within the state’s higher education system and for the appointment of a special master to oversee the remedy to be issued by Judge Blake.

“Disparities in unique, high-demand programs has increased,” said Jones, indicating that Maryland’s HBCU’s previously had White enrollment as high a 20 percent before the state aggressively began a process of assigning new high-demand academic programs to TWI’s. The coalition’s research shows that HBCU’s have 10 unique high-demand academic programs (total number for all four HBCUs’s) compared with 171 high-demand programs at Maryland’s TWI’s.

Smith, the state’s attorney, countered that the coalition’s request for a special master and first rights to new high-demand academic programs would be too costly to implement. “We think that cost matters, especially in the context of the budget in Maryland today,” he said. “There’s not a magic pot of money somewhere.”

But the coalition’s attorney Jones countered with the central thrust of the Coalition’s argument. “Just because it is less expensive to leave a constitutional violation in place, does not make it right,” Jones said. “Serious constitutional violations mean serious costs.”   

The HBCU equity trial ended the final remedial phase June 8.  In 2013, Judge Blake found the State of Maryland liable for continuing to perpetuate a system of legal discrimination in Maryland higher education.  Blake ordered both sides into mediation after her 2013 ruling. After the State of Maryland failed to offer a substantive remedy the case was ordered back to court in January 2017.

Brenda Shum, director of the Educational Opportunities Project for the Lawyers Committee for Civil Rights Under Law and one of the coalition’s attorneys, said she could see the state preparing for an appeal. She was offended by the State’s refusal to meet its legal burden to offer viable remedies in the HBCU equity case.  

“They most certainly are laying the groundwork for their appeal, which is their right. But what I find baffling is that they were not concurrently exploring other ways to address program duplication or increase the White student enrollment at the HBCU’s. They were not obligated to accept our remedial theory which focused on institutional identity, niches, and unique and high demand programs. But they did very little to explore what might have desegregative effect,” Shum said.

Blake promised diligence and speed in issuing a final decision.  “These issues are extremely complex. I don’t need to tell you that. They are also of great importance to, again, everyone in the courtroom, certainly to me, to do my best.” she said. “I can’t promise you a precise date, but I will do my best to get it out in a reasonable period of time and take into account, again, the thoughtful and helpful presentations on both sides.”