Court upholds blacks-only scholarships Suit challenged Banneker program at College Park

A federal judge in Baltimore upheld yesterday the constitutionality of a blacks-only scholarship program at the University of Maryland in College Park, a decision that could effect minority scholarship programs nationwide.

Daniel J. Podberesky, a straight-A College Park freshman, alleged he had been unlawfully denied the opportunity to compete for a Benjamin Banneker Scholarship for black students because of his race.


The student, who is part Hispanic, sued the university when it refused to consider him for the Banneker program despite an academic record that was better than that of 33 of 41 students offered the awards last spring. He charged that the blacks-only scholarships unfairly hurt other minorities and was unnecessary because the campus no longer discriminates against blacks.

In a summary judgment, District Judge J. Frederick Motz rejected Mr. Podberesky's argument that affirmative action "is little more than an unconstitutional anachronism."


Instead, the judge ruled that the scholarship program was a legitimate way to remedy a long and documented history of discrimination in Maryland higher education. "If ever there was an administrative record demonstrating past discrimination, this is it," Judge Motz wrote.

Maryland is one of 18 Southern states notified by the federal government in 1969 that it was in violation of the Civil Rights Act of 1964 and ordered to desegregate its schools.

The state's latest desegregation plan expired last year, but the U.S. Department of Education's Office of Civil Rights has yet to rule whether the state is in compliance.

The College Park campus, one of the most racially and ethnically diverse in the nation, has reached the goals set for it in recruiting black students. But blacks have a much higher dropout rate than whites.

The ruling is believed to be the first in the country to uphold race-based scholarships as a way to attract black students and desegregate schools. Educators and legal experts said it would support similar programs set up by Maryland and 17 other Southern states after the 1969 order. The future of race-based scholarships was threatened in December when the U.S. Department of Education banned the awards. But the department quickly reversed itself in the face of criticism.

In March, U.S. Education Secretary Lamar Alexander announced four-year review of minority scholarships and other programs to insure they comply with civil rights laws.

Yesterday's court ruling also could pave the way for states without court-ordered desegregation plans to launch affirmative action programs if they can document specific instances of past discrimination, lawyers said.

"The import is tremendous," said Andrew Baida, the Maryland assistant attorney general who represented the university with co-counsel Richard Weitzner.


"What Maryland has done here is not unique. It has undertaken a series of desegregation efforts to comply [with a federal order]. A number of other states have done the same thing. The Banneker scholarship program is one part of the effort," he said.

David Merkowitz, spokesman for the American Council on Education, said the ruling was sure to influence Secretary Alexander's current review of minority programs.

"We're hoping it will have an impact on securing what's already out there," he said.

Mr. Podberesky applied for the blacks-only scholarship after narrowly failing to meet the more stringent academic criteria established for the university's only other full tuition scholarship program, the Francis Scott Key awards, which are open to all students. Mr. Podberesky's college entrance exam scores were slightly below the cutoff for the Key awards.

The Benjamin Banneker Scholarship Program, begun in 1978, offers academically talented black students full-tuition, four-year scholarships worth $33,000 each.

Last year 28 students were selected for the award. Despite its small size, campus officials told the court, the program helps integrate the campus because Banneker scholars take an active role in the recruiting and the retention of other black students.


Mr. Podberesky was represented in the case by his father, Samuel Podberesky, a College Park alumnus and senior counsel to the U.S. Department of Transportation. The senior Mr. Podberesky said yesterday that he would read the court's decision before deciding whether to appeal.

"Since the Department of Education felt there was still some discrimination left, some form of action was clearly appropriate," he said. "I didn't argue in opposition to that. The issue is whether a quota not specifically approved by the Department of Education could be instituted by the state."

According to testimony by College Park President William E. Kirwan, the campus has not discriminated against black students in admissions or financial aid for many years.

But Judge Motz said the effects of long-standing discrimination are pervasive and it is premature to conclude that they no longer exist. He said the scholarship program was partly responsible for the success of black students in recent years.

Mr. Podberesky was unquestionably denied the opportunity to compete for the Banneker scholarship because of his race, the judge said, but the student was neither denied admission to the campus nor victimized for racial reasons. If it had not had the Banneker program, College Park would have spent the money on other programs to improve the black student retention rate.

The case differed from the Bakke case of 1978, the judge said. Then, the U.S. Supreme Court outlawed an admissions system that established a quota for black students at the University of California Medical School at Davis.


A white student, Alan Bakke, sued after he was denied admission because of his race. The court said the quota system that barred him was unfair because there was no documented history of discrimination at the school.

Yesterday's ruling brings Maryland full circle when it comes to scholarships for black students. Once the state gave scholarships to blacks only if they used them to enroll in out-of-state schools -- a way of keeping Maryland schools white.

Now the state uses scholarships to give the best black students the opportunity to study in Maryland.

"This program represents to the state and the University of Maryland perhaps the most important weapon available to battle the effects of an unfortunate history of discrimination," said Attorney General J. Joseph Curran Jr. "That weapon is the education of our black citizens."

The only other ruling on race-based scholarships was in 1976, when a federal judge in Washington struck down a program at Georgetown University because it did not address specific instances of discrimination at the school. Georgetown argued that such measures were needed because of general societal discrimination.