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4th Circuit abdicates its role in Md. HBCU case

Baltimore County high school seniors met with representatives from 14 historically black colleges and universities. Many walked away with a college acceptance. (Karl Merton Ferron / Baltimore Sun video)

On Jan. 3, the United States Fourth Circuit murmured in a page and a half memorandum that it really did not want to be the Court of Appeals in what many called the most important higher education segregation case in a decade. Instead, it ordered that a 12-year-old civil rights lawsuit be settled by mediation because both sides had made good arguments. Mediation means that politicians will be the negotiators and the final arbiters.

Gov. Larry Hogan's office had previously offered the four Maryland Historically Black Colleges and Universities (HBCUs) $100 million to settle over a 10-year period, but the HBCUs and the black legislative caucus wanted much more. In a letter to the governor, they spoke of resolving "what we view not a legal matter but, rather a matter of political will." An HBCU expert in the case had estimated that HCBUs were entitled to $2.73 billion in compensation.

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Some historical context may be helpful here. In 2006, HBCU supporters formed an ad hoc group calling themselves "The Coalition for Equity and Excellence in Higher Education" to engage in "community organizing and an awareness campaign." By 2011, the coalition began a Baltimore federal court lawsuit against the Maryland Higher Education Commission.

The plaintiffs made four civil rights arguments:

Gov. Larry Hogan said he is open to spending as much as $100 million to settle a lawsuit brought by a coalition of historically black colleges in Maryland, signaling his desire to end a legal battle that has dragged on for more than a decade.

(1) HBCU missions were unfairly restricted; (2) HBCUs did not get their fair share of capital investments; (3) the state did not fund their operating costs fairly and; (4) the state permitted traditionally white institutions (TWIs) to duplicate their academic programs, making it more difficult for HBCUs to attract diverse student bodies.

Significantly, the plaintiffs did not argue that TWIs discriminated against African-Americans students and employees in any recent period. Instead the energetic efforts of TWIs to diversify their campuses have drawn away African-Americans whom HBCUs would like to recruit.

U.S. District Court Judge Catherine Blake presided over a lengthy trial, festooned with many experts and notables in Maryland higher education. At its end, she ruled that the state had not restricted HBCU missions (all offer graduate degrees), nor had it treated HBCUs unfairly in capital or operating expenses: The per student state funding in 2012 for HBCUs was $9,858 and for TWIs $7,600.

She was concerned about program duplication, however, and ordered mediation on the issue of whether programs should be transferred from TWIs to HBCUs. While a new program by the University of Baltimore to offer an MBA at Towson University was abandoned in deference to Morgan State's established MBA program, other program terminations and transfers ran into resistance, and that mediation was not successful. Moving a program authorization from one campus to another does not mean faculty, laboratories or students will move.

Perhaps a little wiser, Judge Blake later retreated instead to focus on new program allocations and wanted a court-appointed master to determine those outcomes. The state objected to giving non-education authorities control over new developments in the fast changing higher education world. More fundamentally, the state asserted its Maryland campuses were thoroughly desegregated and no further civil rights remedies were warranted. So the new program proposal mediation failed.

Faced with that impasse, the case was appealed to the Forth Circuit, which is the conventional next step if disagreements remain after U.S. District Court proceedings, which in this instance lasted seven years. The Federal Constitution's Article III, Section II states that "the judicial power shall extend to all Cases, in Law and Equity arising under this Constitution, the Laws of the United States… ." In other words, if Maryland were currently in violation of the 14th Amendment or Civil Rights statutes, the Fourth Circuit should so find and determine remedies. If, on the other hand, as Maryland contends, those violations occurred more than 50 years ago and have been sufficiently remedied, then the state is entitled to that ruling. Either side could appeal to the Supreme Court for an ultimate decision.

If, however, the Appeals Court thought Judge Blake was wrong that there were civil rights issues at stake, then the Circuit Court should state flatly that the issues were "political questions" that courts should avoid. Requiring a third round of mediation focusing on how much new money Maryland taxpayers should kick in to HBCUs is not a proper role for the judiciary. Higher education budgets are determined annually between the governor and the legislature, so the subject is always a political question for them.

This is not just a Maryland problem, since the Fourth Circuit also covers Virginia, West Virginia and North and South Carolina where there are many more HBCUs. Without a clear statement of what the law requires, the Maryland mediation mandate will only encourage litigation throughout the Fourth Circuit without any judicially articulated framework of civil rights requirements.

George La Noue (glanoue@umbc.edu) is research professor of political science and public policy at UMBC and has taught constitutional law for five decades. The opinions expressed here do not necessarily reflect any other than his own.

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