The 4th U.S. Circuit Court of Appeals has ordered mediation for Maryland and its historically black institutions rather than ruling on cross-appeals argued last month in a lawsuit that dates back to 2006.
The court issued a per curium order Wednesday instructing the Maryland Higher Education Commission and the Coalition for Equity and Excellence in Maryland Higher Education Inc. to meet with a mediator promptly to resolve the litigation, finding “neither party has a realistic appreciation of the strengths and weaknesses of their respective claims and contentions.”
The coalition, on behalf of the four HBIs in the state, accused MHEC 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.
The parties were repeatedly referred to mediation by the trial court but could never reach an agreement.
The 4th Circuit determined that the case should be settled, otherwise “the parties will likely condemn themselves to endless years of acrimonious, divisive and expensive litigation that will only work to the detriment of higher education in Maryland.”
A spokesperson for the Maryland Office of the Attorney General declined to comment Wednesday.
Michael D. Jones, one of the attorneys for the plaintiffs, said he expected the order based on the three-judge panel’s remarks at oral arguments on Dec. 11.
The judges questioned why the case had not settled and seemed to spend most of the allotted time questioning both sides about remedies, not underlying liability, according to Jones, partner at Kirkland & Ellis LLP in Washington.
“I’m hopeful that the state comes to (mediation) with a renewed sense of purpose and urgency, so I like that the order kind of lights a fire under the process and asks the mediator to give a report,” he said. “I actually see this as productive and welcome.”
Jones said the panel clearly felt the issue was “serious and meritorious” to order the parties mediate. The mediator is instructed to give a report every 30 days and the mediation must conclude no later than April 30.
“I think that there is a path forward and hopefully the state is sufficiently motivated to there,” Jones said.
U.S. District Judge Catherine C. 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.
Blake issued a ruling on relief in November 2017 that 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.
Judge Stephanie D. Thacker noted at 4th Circuit oral arguments 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?”
An attorney for the state assured Thacker that the state would come to the table if liability was affirmed.
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.
Blake’s orders remain stayed during the mediation, and the 4th Circuit took the case under submission.
The case is Coalition for Equity and Excellence in Maryland Higher Education et al. v. Maryland Higher Education Commission et al., 17-2418.