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Plaintiffs in HBCU lawsuit say they were not privvy to proposed $100M settlement

Senate President Thomas V. Mike Miller Jr. speaks Jan. 30 in Annapolis. (The Daily Record / Bryan P. Sears)

Senate President Thomas V. Mike Miller Jr. speaks Jan. 30 in Annapolis. (The Daily Record / Bryan P. Sears)

Maryland lawmakers debated Thursday the wisdom of a $100 million settlement in the lawsuit between the state and its historically black institutions – despite the fact the offer has not yet been made to the plaintiffs and is a fraction of the estimated cost of complying with the federal court order in the case.

Senate President Thomas V. Mike Miller Jr. said he believes the suit, which is currently before the 4th U.S. Circuit Court of Appeals with mediation discussions occurring soon, needs to be resolved or else the appellate court will reverse the trial judge’s findings.

“I hope the parties involved, both sides, come together and work something out for the good of Maryland and for the good of America, quite frankly,” Miller said on the Senate floor, suggesting that the case could end up before the Supreme Court and undo the current law governing discriminatory practices in higher education.

The letter offering to settle the case for up to $100 million was sent Wednesday to the Legislative Black Caucus from Gov. Larry Hogan’s office.

Plaintiffs’ attorney Michael D. Jones said he is unsure why the letter was sent on the eve of mediation discussions to the caucus but not the attorneys involved in the case. Jones acknowledged there is legislation pending in the General Assembly that addresses funding at the historically black institutions.

“What I do know is that the letter was sent to the chairwoman of the caucus and apparently simultaneously or just minutes later was sent to the press,” said Jones, partner at Kirkland & Ellis LLP in Washington. “I have seen it now but not from the governor’s office or from the attorney general.”

After learning of Miller’s comments, Jones said U.S. District Judge Catherine C. Blake, the trial court judge in the litigation, “one of the most well-regarded judges within the 4th Circuit” which can no longer be called conservative.

“I agree with the sentiment that it is important to settle the case, but not because of the reasons Miller gives, but because it is the right thing to do, the thing that Maryland promised to do in 2000 (and actually before that as well),” Jones said in an emailed statement. “That would be good for Maryland, and the people of the United States.”

Settlement proposal

Hogan’s letter was written by Robert F. Scholz, the governor’s chief legal counsel, to update the Legislative Black Caucus on the status of the litigation and Hogan’s goals for the case.

“Ultimately, I am writing to let you know that Governor Hogan wants to bring this litigation to an end in a manner satisfactory to all parties, and in the best interests of all Marylanders, especially current and future HBI students,” Scholz wrote.

The proposal would provide approximately $2.5 million per year to each of the state’s four historically black institutions for 10 years. But the Coalition for Equity and Excellence in Higher Education, which brought suit on behalf of the schools, criticized the amount as “a fraction of what both parties estimated a remedy would cost to repair years of inequity.”

The coalition also said the proposal lacked detail about how the state would address the key components of the judge’s order.

Blake ruled more than four years ago that the state failed to effectively desegregate its institutions and that its practices were unconstitutional. She noted that during the 1960s and 1970s, Maryland’s historically black institutions offered unique, high-demand programs and attracted diverse students but the Maryland Higher Education Commission approved duplication of those programs at other state schools and allowed them to draw away students.

Following a trial last year on remedies, Blake in November ordered the appointment of a special master to oversee the creation of a remedial plan to “eliminate vestiges of the prior de jure system of segregation.” The plan should include funding for new programs and student recruitment to “encourage other-race students to attend the HBIs” without harming the traditionally white institutions,” she wrote.

The litigation has been stayed pending appeal, and briefing in the 4th Circuit is expected to be concluded by April. The underlying case is Coalition for Equity and Excellence in Maryland Higher Education Inc. et al. v. Maryland Higher Education Commission et al., 1:06-cv-02773.

Legislative push

In response to Miller’s push for resolution in the case before the 4th Circuit can rule, several senators lobbied for the passage of legislation, currently cross-filed, that would codify the goals of Blake’s order.

Sen. Joan Carter Conway, D-Baltimore city, is the lead sponsor of Senate Bill 252, which she said is the solution to the problem.

“I appreciate the fact that the people on the second floor made an offer, I do,” Conway said, referring to the governor’s office.

But she noted that estimates for complying with the judge’s order are between $1 billion and $2.5 billion.

Conway’s bill would establish a program to provide supplemental state funding to the institutions to ensure they are competitive with the rest of the state and requires MHEC to implement and administer the program.

The cross-filed House Bill 450 had a hearing in the House Appropriations Committee on Thursday, where representatives from the historically black institutions and civil rights advocates asked for legislative support.

“It is imperative that we try to put into place the financial support that is required for the resources that are absolutely needed for the HBCUs,” Coppin State University professor Charlotte Wood told the committee.

Daily Record Government Affairs reporter Bryan P. Sears and the Associated Press contributed to this report.