U.S. District Court Judge Catherine Blake issued a long awaited, 60-page ruling this month in the case Coalition for Educational Equity and Excellence v. Maryland Higher Education Commission. The litigation was brought by supporters of Maryland's historically black institutions (HBIs), Bowie State University, Coppin State University, Morgan State University and the University of Maryland Eastern Shore. The plaintiffs argued that the state of Maryland had failed in its obligation under the 14th Amendment's Equal Protection Clause to desegregate its higher education system. The defendants, represented by state Attorney General Douglas Gansler's staff, responded that Maryland had made extraordinary efforts to desegregate and the HBIs were in no way disadvantaged by current policies.
The case began in 2006. There were thousands of pages of discovery documents, numerous expert witness reports, and direct testimony by most of the luminaries in the state's higher education system during the six week trial in the winter of 2012. If nothing else, the case proved just how complicated and politicized is the Maryland higher education policy process. It was left to Judge Blake, a careful and conscientious jurist, to sort out the competing claims and largely obsolete legal precedents to render a verdict. Unfortunately, her ruling is both anti-climatic and antiquated.
The only Supreme Court precedent for higher education desegregation is the 1992 Mississippi case Fordice v. United States. In that litigation, the plaintiffs urged that the state provide more money to its two HBIs because improving their quality might hasten the desegregation process. The court, however, said that it would not approve publicly financed black higher education "enclaves." Instead it ordered the state to consider closing or merging some institutions, to establish uniform admission standards in its predominantly black and white universities, and to examine duplicative programs. The court's ruling has been exceedingly difficult to implement in Mississippi.
Maryland officials had glibly promised to make the state's HBIs "comparable and competitive" to its traditionally white institutions (TWIs), but by any objective measure that status was not achieved. By design, each of the state's public higher education institutions has a distinctive mission. What new state policies would create a comparable status for its HBIs to the flagship University of Maryland College Park, the University of Maryland Baltimore's professional schools, or even St. Mary's College's liberal arts focus?
The coalition plaintiffs had no interest in closing or merging institutions or eliminating the very substantial gap in admissions standards which would have decimated enrollment among HBIs. Their ultimate goal was more state money and an expanded role for HBIs. A plaintiff's expert calculated that Maryland HBIs were owed $2.73 billion from accumulated deficits, though Maryland's annual higher education budget is about $1.5 billion. Even before the trial began, however, Judge Blake examined documents and determined that there was no discrimination in the state's capital expenditures between HBIs and TWIs. That was a bitter blow for the plaintiffs, since an assortment of judicially-ordered new buildings at HBIs would have been a very desirable outcome.
Even worse, after the trial, Judge Blake found that HBIs had received more than their fair share of state funding per student. Given the data, she could hardly rule otherwise. Maryland assists its HBIs by granting them more state dollars for each student and by permitting them to charge lower tuition than its TWIs do. According to peer comparisons, of the top five best-funded Maryland public universities, four are HBIs (the University of Maryland College Park is the exception). For example, in 2010, Towson University received $5,056 in state funding per student, while Coppin State University received $11,997. Consequently, Towson students pay 47 percent more tuition annually than Coppin students do.
Nor was Judge Blake persuaded that the state had unnecessarily restricted the missions of HBIs, all of which, except Coppin, have doctoral degree granting authority. The judge was concerned, however, that the state permitted duplicative programs between HBIs and TWIs which might lead some students to make enrollment decisions based on race, thus hindering desegregation. To sort out program offerings, she will appoint a mediator. Since there had been failed mediation attempts before and during the trial, a third round seemed to some an anti-climatic step, after the prodigious effort and expense put into the trial by both sides.
The heart of the problem, however, is the antiquated concept of dividing Maryland higher education into two rigid categories, HBIs and TWIs. There are no judicial findings that Maryland institutions have discriminated against African-Americans in enrollment or hiring for at least 50 years. Indeed, the so-called TWIs have made aggressive efforts to become more diverse. The University of Maryland, University of Maryland Baltimore and University of Maryland Baltimore County have all had minority presidents. There is no historical basis for classifying UMBC as a TWI anyway, since that institution was founded in 1966 and was never segregated. It is now considered a national model for diversity. Its undergraduate enrollment is almost evenly divided between white and minority students, and the University of Baltimore has a similar pattern. Even at Frostburg State, in rural Western Maryland, about 25 percent of students are African-American. Neither those facts, nor the percentage of Asian-American and Hispanic students now enrolled, were cited by Judge Blake, who instead focused on the low percentage of white students at HBIs.
Consequently, she ordered her forthcoming mediator to consider closing, merging or transferring certain academic programs regarded as duplicative from TWIs to HBIs or to preserve special program niches for HBIs. She cited the fields of environmental studies, computer science, aging studies and health care facilities management as possible new programs for HBIs. All these programs are now offered at TWIs, so moving them to HBIs is a possibility. That could have an enormous impact. At UMBC, for example, these programs now enroll about 3,300 graduate and undergraduate students.
Transferring programs from TWIs to HBIs or just closing them at TWIs is a mid-20th Century remedy of dubious value in 21st Century higher education. Universities are not like public elementary and secondary schools where students and staffs can be reshuffled by central authorities. If a UMBC program were transferred to Morgan or Coppin, for example, students might elect to go instead to another Maryland TWI, or an out-of-state public school, or they might choose a private, profit-making, or on-line institution. Would faculty, research infrastructure and library resources be transferred as well? Would faculty recruited to an institution, whose black and white students have average SAT scores well above 1200, work well in institutions with many students requiring extensive remedial work? Would these faculty remain competitive for national research awards?
Would program transfers cause Maryland to lose some of its best and brightest research scholars to out-of-state universities? Judge Blake does not indicate these are relevant considerations. Closing or transferring programs often has unintended consequences. For example if the computer science program were closed at UMBC, could that university maintain its pre-eminent position in the burgeoning cybersecurity field? If so, that might undermine very promising economic development opportunities for the state and even affect national security.
There is another element that Judge Blake did not consider. While all of the once segregated TWIs have worked hard to erase that past and welcome students from all backgrounds, the HBIs still seek to retain a racial identity. As another federal district court found: "The desire of an HBI to maintain racial identifiability extracts an intangible, but very real cost in the desegregation process. It makes it very difficult to recruit white students to the college." To take just one visible example reflecting how institutions voluntarily brand themselves, all four Maryland HBIs still belong to southern all-black athletic conferences formed in the segregation era. None of them play soccer or lacrosse, sports that might attract white students.
Academic institutions that want to remain primarily identified by race, gender or religion have found themselves competing for steadily diminishing market shares, and many have been rebranded and reshaped. About 60 percent of Maryland's African-American students now attend TWIs, but HBIs have found rebranding a difficult task. Even if court-ordered program transfers occur on a large scale, it will not change that reality, unless there are serious efforts by HBIs to become truly multicultural.
A more likely outcome is that, particularly in the Baltimore area where program transfers are more probable, the overall quality of higher education will be severely damaged. Courts should insist that no person should suffer racial discrimination, but they are not the best vehicles for making educational policies or monitoring their outcomes.
George R. La Noue, is a professor of political science and public policy who teaches constitutional law and educational policy at the University of Maryland Baltimore County. He is the author of the forthcoming book on Maryland higher education politics titled "Improbable Excellence: The Saga of UMBC." The opinions expresed are his own and do not reflect those of UMBC. His email is firstname.lastname@example.org.
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