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Md. fails to keep its promise to HBCUs

Law suit demands historically black institutions be brought on par with historically white ones

By Michael Jones and Jon Greenbaum

11:22 AM EST, December 28, 2011

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Maryland is attempting to renege on its obligation to provide sufficient funding to make its historically black colleges and universities (HBCUs) comparable and competitive with other public universities in Maryland in terms of mission, academic program offerings, library services, information technology infrastructure, and other facets of their operations. For five years, the state has vigorously opposed a lawsuit by HBCU students and alumni that seeks to dismantle remnants of the formerly segregated higher education system. The case, the Coalition for Equity and Excellence in Maryland Higher Education v. Maryland's Higher Education Commission, is the first of its kind in the state and the first of its kind in the nation to go to trial in some 16 years.

The state is fighting efforts to bring parity to its HBCUs despite historical documentation pledging to do so. Maryland's 2009 State Plan for Higher Education commits the state to providing substantial additional funding for its four historically black institutions. The plan states: "The State of Maryland has identified as a priority for higher education the goal of providing the funding necessary to ensure that its four public HBIs — Bowie State University, Coppin State University, Morgan State University, and the University of Maryland Eastern Shore — are comparable and competitive with the state's public [traditionally white institutions]."

This commitment flows from the conclusions of a blue ribbon commission of higher education experts that Maryland assembled to compare its HBCUs to Maryland's other public universities. The report was part of Maryland's 2008 Bohanan Commission and is generally referred to as the "HBI Panel Report."

The report explained that its context was Maryland's "long history of racial segregation and disparate treatment." This history is documented in a number of official Maryland reports spanning decades, such as a 1937 report showing an 11 to 1 funding disparity and stating that "the contrast between the amounts of money received by the two racial groups would show, if possible of computation, an enormous differential in favor of the white race." Even after Brown v. Board of Education in 1954, Maryland has admitted in court filings that "for a number of years there continued to be at best benign neglect" and "at worst outright hostility and footdragging."

This is the history to which Maryland's HBI Panel Report refers, a history that led to an agreement in 2000 between Maryland and the Office of Civil Rights aimed at funding for HBCUs to be "comparable and competitive" with the other public universities. However, Maryland did not keep that commitment. Maryland's 2008 HBI Panel concluded that the HBCUs needed "substantial additional resources" to be competitive with the other public universities. It proposed funding the HBCUs to put them "in the position they would have been, absent the perpetuation of discriminatory policies and practices."

The report called upon Maryland to remedy the inequality caused by underfunding of the HBCUs: "What is most important at this juncture is for the Commission to remedy both the lack of comparability" and then to "restructure the process that has caused the inequities and lack of competitiveness between the HBIs and the traditionally white institutions." The report makes the case that enhancing the HBCUs would be a good investment for Maryland, even in a recession, because of the vital role played by Maryland's HBCUs.

Demographic shifts in Maryland's population will only elevate the contribution of Maryland's HBIs in increasing access to higher education. According to the 2009 State Plan for Higher Education, minority students are expected to constitute a growing share of Maryland's high school graduates enrolling in college. "Because HBIs award a high percentage (45 percent) of the degrees earned by Maryland minority students, and a relatively high percentage of their graduates are first-generation college students, one important aspect of ensuring equal opportunity for a diverse Maryland population is to provide enhancement funding to HBIs."

Maryland's HBIs have served a dual mission of providing a quality educational experience in addition to addressing the educational needs of minority students who come from families with traditionally less education and income. In 2009-10 alone, more than 44,500 African-American undergraduate students were enrolled at Maryland's four HBIs.

Officially, Maryland has adopted the HBI Panel Report. But in practice, Maryland has disavowed this commitment, as shown by its forceful opposition to the lawsuit, which seeks to make the state live up to its promise and to the constitution. This fight will come to a head Jan. 3, in the courtroom of federal district court judge Catherine Blake, when the suit goes to trial. Apparently, the only way that Maryland will do the right thing by its HBCUs is if it's forced to do so.

Michael Jones is a litigation partner in the Washington, D.C. office of law firm Kirkland & Ellis LLP. His email is michael.jones@kirkland.com. Jon Greenbaum is the chief counsel and senior deputy director for the Lawyers' Committee for Civil Rights under Law, also in Washington, D.C. His email is jgreenbaum@lawyerscommittee.org. Both are handling this case pro bono.