The 1992 Supreme Court case United States v. Fordice  codified the idea that states should help their historically black colleges by blocking predominantly white institutions from setting up academic programs nearby that would compete with the those of the black colleges. The justices in the Fordice case worried that such duplication would prompt students to choose colleges — and states to allocate resources — along racial lines, effectively re-segregating higher education. The idea was that if only one of a region’s universities offered certain programs, students would integrate.
But in the age of booming online education, things are not nearly so black and white.
Morgan State University has objected to a proposal by the University of Maryland University College to create a doctoral program in community college administration. That program, the historically black Morgan State claimed, would be too similar to one it already offers.
It is certainly not the first objection  Morgan State has raised to programs that could compete with it, but this time there's a wrinkle: While UMUC has a physical headquarters in Adelphi, Md., almost its entire curriculum is provided online. The proposed doctoral program in community college administration would include only nine classroom sessions over three years.
James E. Lyons, Sr., the state secretary of higher education and head of the Maryland Higher Education Commission, said that this is the first case he knows of where a duplication charge has been levied against an online degree program. “The Fordice case did not deal with online education,” Lyons said. “…Now we are talking about something quite different that could very well have an impact. I guess I see online education as sort of redoing many of the things we’ve come to know in higher education.”
And the issues don't just involve historically black colleges. State higher education boards such as the Maryland Higher Education Commission are often tasked with avoiding “unnecessary duplication” of in-state higher-education programs -- whether or not a historically black institution is involved. Fordice gives historically black colleges more grounds to protest competing programs, but the issue of duplication is present everywhere these days, given the need to use state dollars wisely.
In all duplication discussions, online education stands to affect the conversation, possibly in a dramatic way. Web-based degree programs that serve borderless populations present a challenge to state regulators of higher education, who must decide what constitutes duplication in an era where certain universities are neighbors to everyone — and no one. In fact, UMUC (just like other public distance education institutions) offers many degrees that other institutions in the state offer as well.
Lyons said he did not know whether the online variable would necessitate a different process for judging duplication. However, he said, “I think we’re going to be called upon to look increasingly at online education and how that may or may not change how we’ve handled program approval for the last 50 years.”
Under the current protocol in Maryland, colleges and universities — both public and private — submit a proposal for new degree programs to the higher education commission, which circulates it among the state’s other colleges and universities. If any object to the program, as Morgan State has in this case, the commission either approves the proposal or strikes it down, depending on whether the program fits with the mission of the institution that proposed it, whether the institution is capable of offering it, whether it is needed, and whether its existence would constitute “unnecessary duplication” of another program. And with the state's historically black colleges, the commission also considers the state's responsibilities to promote desegregation.
Because the state doesn't have such rules for online programs to be offered outside its borders, UMUC already has permission to start its program, provided it doesn't educate Marylanders. If Morgan State's complaint is upheld, UMUC will be in the unusual position of offering a program only to those outside its state.
Such state approval processes have become outdated with the advent of online programs, said Michael A. Olivas, a University of Houston law professor who specializes in higher education law. “It’s not at all clear to me that the physical or geographic boundaries of those things should count as much as they once did,” he said. Olivas compared the process of program approval to that of accreditation. Both, he said, are based on based on the premise that universities and the populations they serve are anchored in a specific physical location.
For example, last year only a third of UMUC’s students lived in Maryland, as opposed to Morgan State’s 72 percent in-state enrollment. Nearly half of UMUC students didn’t even live in the United States. (Of potential relevance given the challenge to the distance education university's proposal, UMUC has a very strong track record  of educating black students.)
Both Morgan State and UMUC officials declined to comment.
William E. Kirwan, chancellor of the University System of Maryland, said the system’s lawyers have advised him that Fordice does not apply to the online program at UMUC. “My understanding is that online courses don’t really fall under the Fordice restrictions because they did not exist during the period of segregation,” Kirwan said, “and Fordice was intended really to ensure that there wasn’t unfair competition with schools that had formerly been segregated. UMUC is an online university — a relatively recent creature — and was never a segregated institution.”
The Morgan State community college administration degree is not offered online; it is administered in classroom sessions that are held on weekends, to accommodate the schedules of working adults. “From southern Maryland to Baltimore is about 250 miles,” said Kirwan, “so the idea that a weekend program can serve the needs [of everyone in the state] when it is place-bound and people need to travel, I think that’s still a pretty significant inconvenience.”
But Lezli Baskerville, president of the National Association for Equal Opportunity in Higher Education, which represents black colleges, said the online revolution has made it more important than ever to protect the unique offerings of historically black institutions. The promise of Fordice, Baskerville said, was to ensure that those underserved institutions could remain competitive despite having fewer resources. She suggested that rather than allow another university to duplicate Morgan State’s programs and present them to a global audience, Maryland should help Morgan State improve its own online delivery system.
Maintaining a dynamic in which historically black and predominantly white institutions complement one another is ultimately the best way to offer Marylanders a broad buffet of degree options without wasting money, Baskerville said.
Marybeth Gasman, a historian at the University of Pennsylvania who studies historically black colleges, said that distance education competition can hurt them. "Overall I think that online education can pose a threat to historically black colleges because they are heavily marketing to African-American students, so they increase competition," Gasman said. "If this online program is trying to recruit students who would otherwise go to Morgan State, then I think that is competition, and that is problematic.... I think Morgan State has a legitimate complaint."
While the Morgan State-UMUC dispute focuses on distance education offered by Maryland institutions, some experts say that the real policy potential is for states to look at outside providers -- and to invite some in. Richard Garrett, managing director of the higher-education consulting firm Eduventures, said that with myriad online universities from around the country now available to residents of each state, state higher education officials could theoretically outsource certain degrees to Web-based institutions while consolidating state resources in a smaller number of program offerings.
“I haven’t seen the new non-state capacity being factored into discussion of what we need and don’t need,” Garrett said.