The road has been an arduous one, but a lawsuit filed more than five years ago seeking $2.1 billion to remedy what it contends are disparities between Maryland’s historically Black colleges and universities and its traditionally White institutions is nearing trial in Baltimore.
Its outcome could affect higher education for decades to come.
“The best thing is that we are cleared for trial,” John C. Brittan, a professor at the University of the District of Columbia School of Law, said Tuesday after a pre-trial hearing in United States District Court in Baltimore. The lawsuit, for which Brittan serves as co-counsel, asserts that inequities between Maryland’s Black colleges and its White institutions have long existed. “All the preliminary issues have been settled. We are cleared for trial.”
The lawsuit, filed in October 2006 by a group of students and alumni of historically Black colleges known as the Coalition for Equity and Excellence in Maryland Higher Education Inc., contends that Maryland has operated a higher education system of “de jure segregation” – racial segregation imposed by law – in violation of the 1954 Brown v. Board of Education ruling by the U.S. Supreme Court and of Title VI of the U. S. Civil Rights Act of 1964.
The disparities in operational funding and programs asserted in the lawsuit have been most apparent over the years to many students at historically Black colleges and universities.
For instance, Eugene Smith recalls the day he first spotted mold on the ceiling of the Jenkins Behavioral Science Building at Morgan State University in Baltimore.
“There was a lot of mold and residue build-up,” said Smith, 23, who graduated last year and is now pursuing a master’s degree in higher education administration, also at Morgan. “There were cracks in the ceiling – and when it rained, there was mildew, and it grew over time.”
Meanwhile, Zenia Wilson, a Morgan graduate two years earlier who now is studying civil rights and public-interest law at the University of Baltimore School of Law, had to pay out of pocket to spend a summer studying in Mexico.
“I became very intrigued with the idea of studying abroad and didn’t understand why there wasn’t a program at Morgan that helped students with this endeavor,” said Wilson, also 23. “Friends at traditionally White institutions had centers and programs that encouraged study abroad, but we didn’t. I was not able to receive classroom credits for the summer that I spent in Mexico.”
And, nearly a dozen years after graduating from Coppin State University, Keith Reed, now a Senior Editor at ESPN The Magazine, still remembers when the computers broke down while trying to put out the student newspaper. He had to use Morgan’s operations to get the job done.
“What I did was get on the bus and rode over to the East Side – and got off the bus and went over to Morgan and used their facility to put out our proofs for the student newspaper,” said Reed, now 35, who edited The Courier his senior year. “Our computers would regularly break down. It was very difficult.”
“The equipment was outdated,” Reed said. “We were working on PCs instead of Macs like we should’ve been. The computers rarely worked.”
During his years at Morgan, Smith found the conditions so deplorable that he became involved in the school’s Student Government Association, ultimately running for president his senior year on a platform that included seeking improved resources for the university.
Smith was elected. “Someone had to fight for the rights of the university,” he said.
As SGA president, Smith went to Annapolis four times to help university officials lobby for more state funding. “This wasn’t right and it needed to change,” he said.
And while supporters were met with enthusiasm from legislators, oftentimes, they left frustrated and disillusioned. “The actions behind them weren’t what they seemed,” Smith said.
The lawsuit brought by the coalition seeks the estimated $2.1 billion to make Maryland’s four historically Black colleges and universities (HBCUs) – which also include Bowie State University and the University of Maryland-Eastern Shore – “comparable and competitive” with the state’s traditionally White institutions (TWIs).
Among them are the University of Maryland-College Park, the University of Maryland-Baltimore County, Salisbury University and Towson University.
The leading state entity in the case is the Maryland Higher Education Commission (MHEC), established in 1988 to oversee the state’s higher education system. For its part, Maryland has admitted that it has operated a de jure segregation system, but that it ended with the 1954 Brown decision – and that no such policies or practices exist today.
The state further contends that Maryland’s colleges and universities are open to students of all races, noting that in 2009, 59 percent of Black students within Maryland’s public university system attended White institutions.
“Maryland has achieved a system in which all students have a choice as to where to attend college,” state officials say in court documents – though the coalition argues that student “choice” has been influenced by such issues as quality of campus facilities, programs and staff.
“This is the kind of case you want to go to trial with,” said Lezli Baskerville, president of the National Association for Equal Opportunity in Higher Education, a Washington-based support organization for HBCUs. NAFEO has been involved in nearly every higher education desegregation case since its founding in 1969, she said.
“You have strong witnesses, strong facts, clear records of discrimination and the pattern of inequality and inequitable funding – and you have clear examples of the de jure system of segregation,” Baskerville said. “It’s a winnable case.”
Earl S. Richardson, who served as Morgan’s president from 1985 until last year, said, “We are asking for parity.” He now is Distinguished Professor of Education and Research Associate at the Robert M. Bell Center for Civil Rights in Education at the university. “That’s what this is all about.”
“I call it ‘the great hoax,’” Richardson added. “People believe we’ve dismantled the system, but it’s very much in place. It just has a different form.”
The enormity of the case is staggering: More than 1,000 exhibits and as many as 82 witnesses are expected to be presented during the trial – beginning Jan. 3 and scheduled for six weeks – before federal Judge Catherine C. Blake.
During the pre-trial hearing on Tuesday, Judge Blake denied a state motion to exclude reports from as early as 1937 showing that the state had operated a segregated university system. She further ruled against state objections to having the current president of Morgan State, David Wilson, and Eastern Shore’s interim president, Mortimer H. Neufville, testify at trial.
“It’s important that the judge hears what they have to say,” Michael D. Jones, chief counsel for the coalition, said after Tuesday’s hearing. He is a partner in the Washington law firm of Kirkland & Ellis LLP. The firm is handling the case pro bono.
Also representing the coalition are Jon Greenbaum, chief counsel of the Lawyers Committee for Civil Rights and Aderson B. Francois of the Civil Rights Clinic of the Howard University School of Law.
MHEC is being represented by Maryland Attorney General Douglas F. Gansler.
The ramifications of the case are even more significant, as its outcome is being watched throughout the nation, particularly by those leading the 105 HBCUs in 25 states.
“The plaintiffs are just fed up – and they’ve gone to court,” said John W. Garland, president of Central State University in Wilberforce, Ohio. “The case provides leadership in how Maryland’s plaintiffs have organized the case, and it‘s significant because it will show how the courts handle this litigation.”
Mary Evans Sias, president of Kentucky State University in Frankfort, said that while many HBCUs were parties to negotiated federal desegregation agreements over the years, not all have fared well in them.
“Many of us were not given appropriate resources,” Sias said. “We were locked out of getting more of the resources we needed, and the Maryland lawsuit brings these issues back to the forefront.”
“It’s like being left out in quicksand,” she added. “You’re not drowning, but you can’t pull yourself out. Nobody’s trying to help pull you out. You’re just left there.”
“While money doesn’t solve everything, it helps,” Sias said. “It does – and it still does.”
According to the lawsuit, the coalition contends that Maryland has failed to eliminate its vestiges of segregation in funding for operations and program duplication. It also alleges that, even as Maryland negotiated with the Office of Civil Rights of the U.S. Department of Education to dismantle its segregated system, MHEC and other state education officials instituted policies and programs that further separated its Black and White schools.
With duplication, the coalition’s most prominent example is MHEC’s 2005 approval of a joint Master’s of Business Administration (MBA) Program at Towson and the University of Baltimore (UB) that replicated similar programs at Bowie State University and, primarily, at Morgan State, whose MBA program began in 1969.
“We opposed it vehemently, vigorously,” Richardson said in an interview.
In 2004, Maryland Secretary of Higher Education Calvin W. Burnett rejected a proposal for the Towson-UB program, saying it would unnecessarily duplicate those at Bowie and Morgan. Towson also had not provided “a compelling sound educational justification” for the program, according to Burnett.
But in 2005, MHEC approved the program – and it took effect the following year.
“The impact on Morgan was dramatic,” Richardson said.
In the fall of 1975, for instance, Morgan had 263 students in its MBA program – 176 Black students, 54 White students and 33 foreign students, according to state enrollment figures. By the fall of 2004, Morgan’s program had 28 students, with 20 being African American and the remainder foreign students.
For the first time, Morgan had no White students in its MBA program. It had become, in effect, segregated.
That segregation, the coalition contends, resulted from MBA programs and related track courses becoming available at TWIs. Morgan lost White students to these programs quickly – and Black students soon followed because the TWIs were better financed, had better facilities, stronger teachers and higher-quality programs.
For instance, Baltimore established its MBA program in 1971. UB entered the University of Maryland system with the program in 1976. In 1999, the University of Maryland-University College and the Johns Hopkins University – a private institution, nonetheless – started programs. And Loyola University, a Jesuit institution, stepped up efforts to increase enrollment in the MBA program it created in 1967.
“That’s what duplication did for us,” Richardson said. “It destroyed Morgan’s MBA program.”
In court documents, Maryland contends the Towson-UB program was approved because it did not cause “unreasonable program duplication,” which would “cause demonstrable harm” to a program at any nearby institution. This standard, the state says, is “more broadly protective” of all the state’s schools.
Moreover, Maryland contends that MHEC’s approval process allows institutions to object to proposed programs at other universities and notes that the Towson-UB program is the only one the agency has approved over the objections of an HBCU since 2000.
In terms of operational funding, the coalition says HBCUs need more aid because they educate many students who require more financial aid and are in greater need of academic remediation and development. This is the “dual mission” of Maryland’s historically Black institutions, the coalition says.
HBCUs, therefore, must expend additional resources to educate such students. One state-sponsored study the coalition cites estimates that this “extra mission-related cost amounted to $1,400 per student” – or as much as $644 million – since 1990.
“This is really the unfinished business of desegregation,” Richardson said. “The unfinished business of dismantling the dual system of higher education in Maryland.”