Blacks-only school aid threatened UM fails to justify plan, high court says


WASHINGTON -- A federal appeals court, raising a major constitutional threat to blacks-only scholarships at the University of Maryland at College Park, has ruled that the university has offered no proof that it uses that program to cure racial bias.

In a decision made public here yesterday, the 4th U.S. Circuit Court of Appeals in Richmond, Va., said a federal judge in Baltimore should strike down that program if university officials do not now show that discrimination still exists at the university's main campus.

The program would be unconstitutional, the appeals court said, unless there are "present effects of past discrimination" that the scholarships are intended to remedy. U.S. District Judge J. Frederick Motz of Baltimore had upheld the scholarships last May. Now, he must reconsider their constitutionality.

A sophomore at the university, Daniel J. Podberesky, who is part Hispanic, challenged the constitutionality of the blacks-only scholarships after he was turned down when he sought the aid as a freshman. He was rejected solely because he is not black.

The scholarships, given to at least 20 students a year, are worth more than $33,500 each over a student's four undergraduate years. The awards cover full tuition, plus room, meals and mandatory student fees.

The financial aid plan, which has been in effect for nearly 14 years, isknown as the Benjamin Banneker Scholarship Program. Mr. Podberesky would have been eligible for it on the basis of his high grades. In the year he applied, 28 Banneker scholarships were given out.

The Circuit Court ruling yesterday gave Mr. Podberesky a partial victory, and raised a strong possibility that he may have a complete victory after Judge Motz reconsiders under the standards given him by the court in Richmond.

The decision was dated last Friday, but was received by lawyers in the case by mail only yesterday. Mr. Podberesky and university officials could not be reached immediately for comment.

The Circuit Court's decision was based primarily upon a landmark ruling by the Supreme Court three years ago, sharply restricting the power of state and local government to use race as a basis for granting public benefits. Under that January 1989 decision, a benefit passed out solely on the basis of race is permitted only if discrimination lingers to the present day in a state or local government's activity.

The Supreme Court laid down in that ruling, for the first time, a constitutional standard for judging when government programs at the state and local level, based on race, are valid.

It adopted the toughest standard possible: Any race-based remedy must be truly necessary and fitted very closely to actual proof of "identified discrimination" in the present time, the court said then.

Judge Motz had ruled that the blacks-only scholarships programmet that test because there was a "strong basis" in the evidence to show that the University of Maryland at College Park had a history of race discrimination.

The judge found that there was so much history of bias, in fact, that he could not conclude that there were no present remnants of that discrimination.

The Circuit Court noted that Judge Motz did not go on to rule specifically that there was a "present effect" of any past bias. Without that, it said, the program cannot be upheld.

While Judge Motz had said that the Banneker scholarships should be allowed at least until the U.S. Department of Education finished a still-continuing investigation of the university's racial history, the Circuit Court flatly disagreed.

That might be fair to the university, the Circuit Court said, but "it does not satisfy constitutional standards." It added: "A finding of past discrimination is not sufficient. There must be some present effect of this past discrimination that the [scholarship] program is designed to redress."

When Judge Motz reconsiders the case, the higher court said, he is not to look only at the numbers of black students enrolled at College Park and then draw some conclusions about racial bias, or the lack of that, from those numbers alone.

The university, it added, might be able to offer some evidence of present discriminatory effects -- even though it has offered none so far -- and it should be given a chance to do so. Thus, it overturned Judge Motz's ruling in favor of the university and returned the case to him.

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