An appellate panel will determine whether to allow a sweeping order to desegregate Maryland’s historically black institutions to stand after hearing arguments Tuesday.
The 4th U.S. Circuit Court of Appeals heard arguments on cross-appeals from the parties to a lawsuit filed in 2006 accusing the Maryland Higher Education Commission of “maintaining vestiges of the prior de jure system of segregation” by allowing traditionally white schools to duplicate programs that were unique to the HBIs.
U.S. District Judge Catherine C. Blake issued a ruling on relief in November 2017 which included a permanent injunction requiring a special master be appointed to oversee the creation of a remedial plan to address past unequal treatment of HBIs.
Maryland’s four HBIs are Morgan State University, Coppin State University, Bowie State University and the University of Maryland, Eastern Shore.
Adam D. Snyder, an attorney for the state, told the 4th Circuit panel that the state “operates a diverse system of higher education, diverse both in terms of student enrollment and in terms of the institutional options that are available to students.”
Snyder, of the Maryland Office of the Attorney General, said the current picture “bears no resemblance” to the segregation of prior eras, though he acknowledged that the HBIs are not as integrated as the traditional white institutions.
Blake ruled on liability in 2013 and found unnecessary program duplication was the sole policy traceable to the de jure era. She held a separate trial on damages in 2017 after the parties failed to reach a settlement.
Judge Stephanie D. Thacker noted that the record does not show the state working with the plaintiffs after the liability ruling, echoing Blake’s findings.
“It seems like the state didn’t really come to the table on the remedy issue, well, at all or much,” she said. “If we reverse the District Court on the remedy issue, what assurances would the court have that the state would come to the table and participate in finding a new solution this time when it appears from the record that the state wasn’t that interested the last time?”
Snyder said the state will come to the table if the 4th Circuit affirms the liability findings, but he said the state proposed things that experts had agreed would be effective, like funding for marketing.
Jon M. Greenbaum, an attorney for the plaintiffs, said the state has made decisions that go against the HBIs, including the duplication of programs that were unique and in high demand.
“If you go to the court’s opinions, the court talks about the series of events where Maryland went down a certain path that ended in the HBIs not being what they could be today,” said Greenbaum, of the Lawyers’ Committee for Civil Rights Under Law.
Michael D. Jones, another attorney for the plaintiffs, told the judges the state’s four HBIs were more diverse in the 1960s and 1970s than they are today and that fact was traceable to MHEC’s decisions to allow program duplication.
“I think it’s important to keep in mind how unnecessary program duplication causes segregated effects,” said Jones, a partner with Kirkland & Ellis LLP in Washington.
Judge J. Harvie Wilkinson III was skeptical of the need to add another layer of bureaucracy to the higher education system in the form of the special master. He said the answer appears to lie in funding the schools and letting them develop as they see fit.
“We’re going to throw a whole lot of money at something that it seems to me, I’m not sure that that’s going to really have any kind of tangible effect because isn’t the answer here to make certain that the HBIs are adequately funded?” he asked. “They play such an important part in the overall Maryland system of education and no one disputes how valuable and worthwhile they are, but I’m wondering if the answer is to make sure both now and down the road, if the HBIs have adequate funding to carry on the mission statements that they have crafted and allow the HBIs to spend the adequate funding in a manner that best develops their own mission and their own appeal, and responds to what they perceive as student demand rather than what a special master is trying to engineer.”
Greenbaum said a constitutional violation deserves a remedy of some kind.
“We’ve been engaged in this litigation for the last 12 years, and Maryland hasn’t solved the problem,” he said. “There needs to be some level of oversight.”
Judge G. Steven Agee was also on the panel.
The case is Coalition for Equity and Excellence in Maryland Higher Education et al. v. Maryland Higher Education Commission et al., 17-2418.