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Ending Segregation Through Duplication

After finding illegal discrimination against Maryland’s historically black colleges and their students, a judge orders a proposed fix. But it doesn’t include the controversial idea of transferring programs from traditionally white institutions.

November 10, 2017
 
Morgan State University

A federal judge will appoint a third party to address segregation imposed upon Maryland’s public historically black universities, issuing a middle-of-the-road decision that does not completely fulfill the requests of either side in a bitter and long-running court case.

Judge Catherine C. Blake on Wednesday ordered the appointment of a “special master” who will create a remedial plan and monitor its implementation under court supervision. The plan is to create a new set of unique or high-demand programs that build on the strength of Maryland’s four public historically black colleges. It will also include a yet-to-be-determined amount of funding for marketing, student recruitment, financial aid and other initiatives over the next decade.

But the plan will not be allowed to include a proposal that had proven highly controversial among Maryland’s public higher education institutions -- transferring programs from some traditionally white state institutions to its historically black universities.

The judge’s ruling could prove to be the culmination of a lawsuit stretching back to 2006, when a group of historically black college and university supporters called the Coalition for Equity and Excellence in Maryland Higher Education sued the state for violations of the Civil Rights Act and the Constitution’s equal protection clause. At the heart of the suit was whether the state had effectively caused segregation at its historically black universities by allowing traditionally white universities to duplicate historically black institutions’ programs -- preventing the historically black universities from drawing a diverse set of students with successful programs.

In 2013, the court ruled unnecessary program duplication in the state’s higher education system has effects of segregation that the state could not justify. The parties subsequently went through mediation but could not agree on a path forward, and they submitted competing proposals to remedy the situation in 2015.

The case continued in court until Blake’s ruling Wednesday. She wrote that none of the proposed remedies were proper.

“The court finds that neither party’s remedy, as currently proposed, is practicable, educationally sound and sufficient to address the segregative harms of program duplication at HBIs,” the judge wrote. “At least in part, this results from parties’ failure or inability to consult with the other side in crafting their proposals.”

Nonetheless, advocates of the state’s historically black universities supported the judge’s decision. They welcomed the judge’s plan as one that should end harmful program duplication, provide historically black institutions with more resources and help those institutions stand out by creating in-demand clusters of programs.

“She’s putting an end to program duplication going forward, and so that’s a win,” said David Wilson, president of Morgan State University, a public historically black institution in Baltimore. “I think it’s a win for the state, I think it’s a win for Morgan and it’s a win for taxpayers, because you don’t necessarily have to now pay two or three times over for programs that were being offered at Morgan.”

The court’s order requires Maryland to end the segregation-era policy, said the lawyer leading the case against the state, Michael D. Jones, in a statement.

“The most important area of inferiority was to deny the black schools exclusive, unique, well-funded programs,” said Jones, a partner at Kirkland & Ellis LLP. “With this order, Judge Blake brings that era to a close.”

In other statements, backers did not reference the fact that they had proposed transferring programs from other institutions to historically black universities. Instead, they focused on what the judge had decided.

“We are especially pleased that the judge’s order requires the development of several new and unique high-demand programs at each HBI and that those programs are to be funded by the state rather than the HBIs,” said David Burton, president of the Coalition for Equity and Excellence in Maryland Higher Education. “That was one of our primary objectives in bringing this lawsuit.”

A spokesman for the University System of Maryland declined comment. A spokeswoman for the state’s Higher Education Commission did not respond to a request for comment Thursday afternoon.

The coalition bringing the suit had proposed creating programmatic niches at each historically black institution, along with academic enhancements like additional funding at each institution, as well as reforms to the state process for new academic program approval. Niches would have been made by creating new programs at historically black institutions or transferring programs from traditionally white institutions to historically black institutions.

The idea was that niches would create unique institutional identities outside racial identities at historically black institutions, helping them attract students of different races. Some new programs would have been created from scratch, and others would have been moved from one institution to another.

At Morgan State, for example, the proposal would have created three programs: business and management; urban environment, health and sustainability; and engineering. That would have been done in part by transferring programs from traditionally white institutions.

The state first proposed creating a fund for collaborative academic programs, which would have taken the form of a six-year program to develop new programs between historically black and traditionally white institutions. It would have distributed $10 million in grants. The state also proposed summer academies for high school students at each historically black institution that would receive between $500,000 and $1 million per institution each year for four years.

But the state later replaced its proposal with one that would have provided $50 million over five years to the four historically black institutions. They could have used the money for enrollment management, student aid, campus inclusion efforts or summer academies.

The judge found the state’s remedial proposals were “neither adequate nor sufficiently specific.” She called the plaintiff’s proposal, which would have created areas of program concentration with new and high-demand offerings, promising but in need of more thorough discussion. She has also rejected an idea to have Morgan State University take over the University of Baltimore, a traditionally white institution.

The case, the judge wrote, is not about particular institutions. It is about students’ constitutional right to attend any public college or university without having to accept racial segregation. Maryland’s traditionally white institutions meet that requirement, the judge found. Its historically black institutions don’t, so a remedial plan needs to encourage students who are not black to attend historically black institutions.

Such a plan wouldn’t be sound educationally if it hurt students at integrated institutions, the judge wrote.

“Crafting such a plan is a daunting task requiring the good-faith collaboration of the coalition and the state,” the judge wrote.

The plaintiff’s proposal raised cost issues, accreditation complications and issues with the state’s process for approving academic programs, the judge wrote. She also pointed out that the state did not consult with numerous presidents at both historically black and traditionally white institutions when drafting proposals -- and that the plaintiff’s experts weren’t able to consult with presidents at historically black institutions when drafting theirs.

Testimony in the case revealed schisms within Maryland public higher education. Some presidents testified that creating new programs would increase the number of students in higher education. Others worried the state would take money from some institutions and give it to others in order to fund new programs.

Wilson had told the court that a viable remedy had to start with transferring programs. But presidents at traditionally white institutions said doing so would seriously harm their institutions. Kurt Schmoke, president of the University of Baltimore, said proposed transfers could force the university to close its business school.

Schmoke's position indicates just how complicated the situation has become, both legally and politically. He was the first African-American elected mayor of Baltimore, in 1987. Today he is not alone as an African-American leader at one of Maryland's non-historically black universities. Institutions like the University of Baltimore and the University of Maryland Baltimore County have strong records of enrolling and retaining black students, meaning that harming those institutions would likely also harm black students.

Presidents at the traditionally white institutions testified that transferring programs would harm their colleges and universities by hurting their reputations -- and their ability to attract students and faculty members -- by harming partnerships they had with other institutions and by hurting the state’s ability to meet its work-force needs. Faculty members had already voiced opposition to moving, some said.

The judge concluded that creating new unique and high-demand programs at historically black institutions will mitigate, to the greatest degree possible, the effects of segregation from program duplication between institutions.

Program transfers do not need to be a part of the final remedy unless affected institutions agree to them, the judge decided. She cited the difficulty of the transfer process, its potential to hurt institutions losing programs and the possibility that transferring programs could hurt students at traditionally white institutions.

The state’s process for approving new programs is adequate, the judge decided. But she is still requiring consultation with the special master before future programs are approved, a measure backers of the historically black universities supported.

The state and coalition will be able to submit suggestions for filling the special master role.

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