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Coppin State University

In Maryland, a lawsuit over the desegregation of historically black colleges and universities has people in the state and those who watch higher education wondering: Did HBCU advocates ask for too much? Did the state give too little? Are both sides gearing up for a court battle that might just reach the U.S. Supreme Court and change states’ legal obligations to their public black colleges?

Two years ago a federal judge ruled that the Maryland Higher Education Commission perpetuated segregation by allowing predominantly white universities (PWIs) to duplicate programs offered by HBCUs, assuring that white students would overlook black colleges and setting off enrollment struggles at some of the state’s four public black institutions.

Since then the two sides have bitterly disagreed on how to remedy the segregation -- with the state of Maryland most recently arguing against many of the theses that have governed desegregation strategies in the past and disagreeing with nearly all the proposals offered by HBCU advocates, calling the proposals “manifestly risky, costly and intrusive in the extreme.”

Indeed, the black college advocates' proposals are sweeping. Earlier this year they submitted a proposal to a federal judge that sought wide-scale program transfers from PWIs to HBCUs, a redefining of the state’s public online college and the merger of an HBCU and another state institution. The proposals would have targeted programs at such institutions as the University of Maryland-Baltimore County and the University of Maryland University College, the former known for unusual success in educating black scientists, and the latter of which has an undergraduate enrollment that is more than one-quarter black.

For many affiliated with the state, the request went too far.

“They’re asking for a massive transformation of higher education in Maryland,” said Laslo Boyd, who has served as an education adviser to Maryland’s governor and as the state’s acting secretary of higher education, though he is not currently employed by the state. “The plaintiffs, in asking for almost everything imaginable, opened themselves up to an argument that they have not tried to just remedy wrongs but have created wish lists.”

In a Nov. 20 response, the commission argued that such proposals offer “no likelihood of increasing Maryland students’ educational options,” and said there is no evidence program transfers or mergers would boost enrollment at HBCUs or attract more white students. In fact, the state argued, there are several examples where unique programs at HBCUs have netted fewer white students than duplicated programs at the same HBCU.

In questioning whether starting new, high-demand programs at HBCUs would net the desegregative results desired by plaintiffs, the state broke with reasoning that has long governed similar cases where HBCU advocates have accused or sued a state for program duplication resulting in segregation. Most of the time the question is not whether to offer new programs, but how many to offer. In Pennsylvania, for example, the state system -- which is also being sued by HBCU advocates -- is working with Cheyney University to develop such programs in an effort to boost enrollment.

When most people think of the desegregation of higher education, images come to mind of the first black students enrolling at places like the University of Mississippi. But much of the litigation of higher education desegregation has focused on historically black colleges -- and how state systems can be dismantled without simply dismantling black institutions. In the years of Jim Crow, black colleges were denied much in terms of money, programs and land -- so advocates for HBCUs have said that simply dropping de jure segregation wouldn't go far enough to promote equity.

One argument in Maryland was to question the idea that its public colleges are indeed segregated, noting the high levels of racial diversity at Maryland’s PWIs -- including that a nearly equal number of black and white students attend the University of Baltimore, the very institution plaintiffs want to merge into Morgan State University, a HBCU located 30 miles away. The state said a merger, if anything, would lead to less racial diversity at the resulting institution.

So in its most recent filing, the commission didn’t agree to the plaintiffs' proposals to transfer programs or merge institutions. In fact, it didn’t even suggest the creation of new, independent programs at HBCUs. Instead, the commission suggested a six-year, $10 million fund to create joint and dual programs between PWIs and HBCUs.

Johnny Taylor, president of the Thurgood Marshall Fund, an organization that advocates for HBCUs, said the $10 million fund was not nearly enough money to begin to rebuild the damages inflicted on the state’s HBCUs. He also called the commission’s insistence on joint programs, over new or transferred programs, insulting.

“I am really surprised by the level of intransigence that we are seeing from the state of Maryland. We have a finding now. That’s law,” Taylor said, adding that the state appears to continue its argument -- made earlier in the case before a federal judge decided program duplication did put Maryland’s HBCUs at a disadvantage to their PWI peers -- that program duplication is often not harmful. “So the question should be how do we reverse these losses and make these schools whole?”

The lawsuit against the state by a group of HBCU supporters called the Coalition for Equity and Excellence in Maryland Higher Education spans nearly a decade -- and people on both sides expect the case to continue for several more years. Both sides are prepared to appeal the judge’s forthcoming decision on how best to rectify the segregative effects of program duplication in Maryland.

The coalition brought the suit in 2006 after the University of Baltimore and Towson University, both located in the Baltimore area, created a joint M.B.A. program. The program was similar to an existing one at Morgan State University, an HBCU in Baltimore. Frustrated by Morgan’s shrinking white enrollment, the coalition sued the state, and in 2013 U.S. Judge Catherine C. Blake ruled that unnecessary program duplication had indeed harmed the state’s HBCUs. She cited the M.B.A. program as a strong example of that harm, and in its November filing the state said it would disband the joint M.B.A. program -- yet the commission offered few other concessions.

Marybeth Gasman, director of the University of Pennsylvania's Center for Minority-Serving Institutions, says throughout the last decade, neither the commission nor the coalition has found much common ground -- and she’s not hopeful they’ll find any in the near future.

Maryland, she says, “has been so rigid in its approach to HBCUs,” first arguing that program duplication was not a problem and now, in its most recent filings, minimizing the perceived harmful effects of duplication. Meanwhile, she says, the coalition is unlikely to get all the concessions it’s asking for and will need to find ways to compromise.

“Something has to be done in the state of Maryland. This cannot keep going on,” Gasman said, describing the decade-long lawsuit as a perpetual game of tug-of-war in which neither side has compromised. “You’ve got two groups that are pulling on that rope and nothing is happening. It has been like that forever.”

Fundamental Disagreements

Both sides disagree on whether a merger or program transfer would attract white students, and in one case they’re each using the same example to support their viewpoint.

HBCU advocates point to the merger of Tennessee State University with the University of Tennessee at Nashville in the 1970s as an example of a successful merger between a PWI and HBCU. The university under the Tennessee State name has a robust enrollment of more than 9,000 students and a six-year graduation rate of 62 percent, which is quite high among HBCUs. Yet the commission, in its filings, said the merger is a failure in terms of diversification. It noted how nonblack enrollment comprised 51 percent of students at the two colleges before the merger. In 2014 that number had shrunk to 29 percent, according to federal data.

The Tennessee case “suggests that merging UB into Morgan would destroy one of the most diverse public universities in the state,” the commission's filings said. While not a HBCU, UB enrolls more black students than white ones (47 percent versus 37 percent, respectively). At Morgan, just 2 percent of students are white.

“Is the aspiration of diversity about students or institutions? Are you trying to create opportunities of advancement for minorities, or are you trying to strengthen HBCUs regardless of the effect?” asked Boyd, adding that the state’s filing questions the very idea of what constitutes a desegregated system of higher education. “The state seems to be arguing that minorities have lots of opportunities at a full range of institutions.”

The state also disagreed with the coalition’s central premise that creating unique, high-demand programs at HBCUs is “fundamental to developing institutional identities that go beyond race and, in turn, attract not only white students but students regardless of race,” saying the position was unsupported by scientific research. According to the state, creating such programs “would not contribute to diversity” at HBCUs. In fact, an analysis by the state found that the percentage of white students enrolled in unduplicated programs that already exist at Maryland’s HBCUs is negligibly different, and in some cases lower, than the overall low percentage of white students enrolled in HBCUs.

“This is a novel theory, this notion that, in transferring programs from a majority institution to a minority institution, white students won’t follow and the program would be harmed,” said Taylor, adding that if a transferred program is adequately supported and funded, there should be no difference in performance or enrollment.

“The idea that something, because it’s at Morgan State, won’t be as attractive is racist itself. You’re essentially saying a black college can’t deliver with the same resources that a majority [white] college can. You’re making all sorts of assumptions,” he continued. And the idea that white students won’t matriculate into a specialty program at a HBCU that is of equal caliber is one that assumes, and then permits, students to make decisions out of bias, he offered. “That is really a sad commentary on what is the state of race relations in the state of Maryland.”

Gasman says there is “historical evidence, legal evidence and just practical evidence” that white students “tend to hold racial bias against black institutions,” which can keep them from enrolling in HBCUs. Yet Gasman said that if resources are put into a program and it is perceived as unique and high quality, students generally overcome that bias. She notes that currently about 13 percent of HBCU students nationally are white, and that enrollment figures are higher at HBCUs in areas where there are more limited options for college. Maryland, meanwhile, is geographically small and students have lots of in-state options for college.

“It’s great that these other institutions are more diverse. It’s great that they’re desegregated. But just because that’s taking place doesn’t mean Maryland has lost its obligation to make sure its HBCUs are strong,” Gasman said. She added that diversity at traditional institutions does not solve the issue in question: that a federal judge found the state had allowed program duplication to harm and weaken HBCUs.

Officials from the Maryland attorney general’s office and the state higher education system declined to comment for this article, but the system did release a statement saying that transferring programs to HBCUs would adversely affect diversity at PWIs. Yet Taylor said the state, in its reasoning, is placing its PWIs ahead of its HBCUs, and “making a value judgment that it prefers that those institutions be racially diverse at the expense of the HBCUs being racially diverse.”

William Kirwan, former chancellor of the system, highlighted how complicated and involved program transfers can be. “People have a misconception that moving programs is like moving pieces on the chessboard,” he said. In reality, he adds, it’s not so simple. One must consider elements like accreditation and faculty appointments, which would be at risk if a program was transferred.

“The faculty may not go, so then the program doesn’t exist,” he continued. “There’s no evidence that it works and it puts at great risk programs that are very successful in serving a state interest.”

Boyd suggested that program duplication is not responsible for many of the issues facing HBCUs. Demographic changes and the rise of online education have also shifted the landscape for black colleges. He noted how Morgan’s M.B.A. enrollment was showing signs of struggle even before Towson and UB launched their hotly contested joint program. “Even if you move every high-demand program to Morgan, it’s not clear what the effect would be,” he said. “Particularly in a day when so much is offered online. You’re not limited by geography anymore.”

Kirwan is quick to point out how Maryland’s flagship public university, the University of Maryland at College Park, is among the most diverse member institutions in the prestigious Association of American Universities. “Maryland has a good record of diversifying its traditionally white institutions,” he says.

Indeed, many of Maryland’s PWIs are diverse -- with several providing better outcomes for black students than their HBCU peers.

At UMBC, 16 percent of undergraduates are black and black students have a six-year graduation rate of 59 percent, compared to 61 percent for all undergraduates. At Towson, 16 percent of undergraduates are black and black students have a 67 percent six-year graduation rate, compared to 68 percent for all undergraduates. At College Park, 13 percent of undergraduates are black. Black students there have a 77 percent graduation rate, compared to 85 percent for all undergraduates.

UB, a minority-majority institution, has one of the system’s lowest graduation rates, partly because of the university's commuter profile. UB’s six-year graduation rate among black students is 30 percent, compared to 43 percent for all undergraduates.

Meanwhile, Maryland’s HBCUs are much less diverse and their outcomes are generally less rosy than those of their PWI peers. At Morgan, 84 percent of students are black and just 2 percent are white. The six-year graduation rate is 32 percent. At Bowie State University, 87 percent of students are black and 3 percent are white. Bowie’s graduation rate is 33 percent. At Coppin State University, 82 percent of students are black and 2 percent are white. The graduation rate is 17 percent. The University of Maryland Eastern Shore is by far the state’s most diverse HBCU -- 72 percent of its student body is black and 12 percent is white. The six-year graduation rate is 37 percent.

HBCU advocates say the difference in performance is due mainly to HBCUs not being supported by the system, and also because many of the students that HBCUs serve are low income and first generation, groups that generally struggle with college at any institution. In particular, they say, the state has duplicated programs at majority institutions that have drawn well-performing and racially diverse students away from the HBCUs and precipitated academic decline.

“The state puts all the signature programs at non-HBCUs and then blames HBCUs for not being able to attract students,” Gasman said.

Yet whatever the cause, there is sharp disagreement about how to remedy struggles facing the state’s HBCUs. The state suggests joint programs between HBCUs and PWIs as a solution. It also proposed a summer academy that would expose aspiring college students to HBCU campuses. The Coalition for Equity and Excellence in Maryland Higher Education and other advocates are doubtful that the joint programs proposed by the state would be an equal partnership, and instead are seeking more drastic measures -- like mergers and transfers.

Though Kirwan thinks program transfers would be harmful to public higher education in Maryland, he departs from his former colleagues at the commission in his robust support of program creation. Where the commission, in its filings, says there is no concrete evidence program creation leads to more diversity at HBCUs, Kirwan disagrees. He calls the University of Maryland Eastern Shore “the poster child for how building program inventory can work.”

The 4,300-student university is located 20 miles from the system’s 8,800-student Salisbury University, but is otherwise geographically distant from any other public college. Its pharmacy and engineering programs have been successful in attracting students, and the college is one of the most racially diverse HBCUs in the country.

“The state should invest in increasing the program inventory at the HBCUs and provide money to start up programs that are in high demand,” Kirwan said.

HBCU advocates interviewed for this article said they expected more support for program creation from the commission. “I’m just surprised that the state did not come back and say” we don’t want to move an existing program, but “here are three brand-new, cutting-edge programs that we’re going to give you,” offered Taylor.

Boyd, the former commission official, has a theory. Each side, he surmises, is giving as little ground as possible in order to make their case stronger, given the likelihood the lawsuit will be appealed to a higher court -- perhaps even the highest court.

“Both sides are planning on this going as far as it can go,” he says.

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