Attorneys representing the Coalition for Equity and Excellence in Maryland Higher Education consider prospects for a settlement before judgment to be unrealistic, even though similar lawsuits in other states, including Tennessee, Mississippi, Alabama and Texas, have all been resolved through voluntary agreements between the parties, though some of those agreements came after initial court rulings but prior to the outcome of appeals. In Maryland’s case, however, there is no indication that the Coalition is interested in pursuing a settlement in spite of reports that Maryland Governor Martin O’Malley has explored the possibilities of settlement through budget discussions with representatives of the Maryland Legislative Black Caucus. Even were the Coalition to consider a settlement proposal from the State, advocates say the issues in this case are so clear that a judicial ruling in their favor would set an important national precedent for HBCUs across the country.

The Coalition, on behalf of the HBCUs, is suing Maryland to address the disparities the HBCUs have suffered in comparison to the State’s historically White institutions due to Maryland’s failure to eliminate the vestiges of segregative practices reaching back to a time when segregation was required in Maryland by law and practice. The lawsuit contends that the State has failed to remedy those disparities and that it maintains and perpetuates a racially discriminatory and segregated system of higher education by continuing policies and practices that are remnants of its prior officially segregated era. The Coalition is asking for $2.1 billion to make up for the disparate funding, academic instruction, facilities, programs and other practices the HBCUs are alleged to have suffered. The Coalition asserts that the State’s failure to address the disparities suffered by the HBCUs was part of a deliberate policy that starved Black institutions of funds to carry out their mission and left them financially crippled and unable to compete with White schools.

“Since the state has argued that Black students are not injured by a lack of resources such as having to go to the traditionally White institutions to use the library, I don’t think it’s realistic to expect the State to rectify the deficiencies at the HBCUs,” says attorney Michael Jones, of the firm Kirkland & Ellis LLP, one of the attorneys representing the plaintiffs on a pro bono basis.

“In view of the State’s adamant official position that it has ’no legal requirement’ to address the historic inequities that it created between HBCUs and White institutions, I frankly doubt that anything will happen until they’re forced to do so,” Jones says.

“After all, Maryland promised to rectify these issues in 2000, which was 13 years ago, but then turned around and argued that it did not really mean what it said.”

The State established a commission in 2006 entitled the Bohanan Commission to develop a statewide framework for higher education funding, and among its recommendations stated specifically that HBCUs become comparable and competitive with other public institutions.

“If Maryland would not implement the recommendations of its own Bohanan Commission… it is pretty clear that the State has no real intention of living up to the statement in its 2009 State Plan for Higher Education, which said it was committed to putting the HBCUs in a position to compete with other institutions in the State," Jones says.

Meanwhile, in a related effort not intended to supplant the pending judicial decision in the Coalition lawsuit, members of the Maryland Legislative Black Caucus have pursued what can be done in the short term to assist HBCUs. 

After recent meetings between the Caucus and Gov. O’Malley, the Governor requested an additional $4.1 million in funding that is earmarked for HBCUs or their students through the state’s FY 2014 supplemental budget.

That amount includes $360,000 in Educational Excellence Awards for students attending HBCUs, $1.5 million to convert contractual faculty at HBCUs to full-time positions, $1.8 million in institutional need-based aid, and $400,000 in a land grant research match for the University of Maryland Eastern Shore.

“As legislators, we can look at this from a broader policy perspective. Plans that HBCUs created for themselves can be integrated into a comprehensive strategy that is coordinated through the state budget process. The question remains whether Maryland has what it takes to do it. I refuse to believe we don’t,” says Del. Aisha Braveboy, chair of the Legislative Black Caucus.

The supplemental budget additionally directs MHEC to undertake a study that will serve as the basis for the development of a plan to ensure the long-term stability and success of the HBCUs.

The study will examine resource needs, affordability, college readiness, degree completion, leadership, faculty, and perhaps most controversially, program duplication.

States such as Georgia, Ohio, and Texas, which also operated under U.S. Department of Education Office for Civil Rights compliance agreements, are following developments in the Coalition case closely to determine how their own public higher education systems will be affected.

Jones warns HBCUs across the country to be careful because policy statements from state officials are not always kept. “It’s the easiest thing in the world, as they say in Washington, to kick the can down the road by creating another study,” says Jones. “After all, Maryland's first study was in 1937 and noted ’an enormous differential in favor of the white race.’”

A study in 1960 conducted by the Frampton Commission recommended that Morgan State College be the principal institution in the Baltimore region for students of any race or color, but the State ignored this recommendation and instead started a brand new school in 1966, the University of Maryland Baltimore County, that duplicated many of the courses offered at Morgan.

A study in 1974 conducted by the Cox Commission recommended special funding to allow the HBCUs to "enhance their role and image" but Maryland ignored that Commission’s report also.

In 1981 a report called upon the state to again "strengthen the role and missions of the historically Black institutions" but, as in the past, the State failed to follow its own recommendations that time too. And a 1992 report that studied the HBCUs, entitled "Achieving Eminence" called for "catch-up funding.” The findings of that report were also ignored by the state.

Maryland's Bohanan Commission in November 2008 appointed a blue ribbon panel of experts in higher education, entitled the HBI Panel, which called for "substantial additional resources" for the HBIs "to overcome the competitive disadvantages caused by prior discriminatory treatment."

“Now, the governor is calling for another study to be done by the end of 2013? That adds up to more than 75 years of studying the problem and very few years of fixing the problem.” says Jones.

At the heart of Maryland’s repeated rejection of its own policy statements toward HBCUs is the concept of equality v. equity, a well-established remedy in English Common Law, dating back to the time of the Magna Carta, the system that led to constitutional law in the colonies. 

“Equality is a 50/50 split. Equity is an extraordinary legal remedy that makes a victim whole after a wrongdoing has occurred. If you want HBCUs to do the job, then make us whole,” says attorney John W. Garland, president-in-residence at the Thurgood Marshall College Fund, and former president of Central State University in Ohio.

Attorney Raymond Pierce, former deputy secretary of the U.S. Department of Education’s Office for Civil Rights during the Clinton Administration, understands why the Governor might be motivated to propose settlement given the strong evidence that exists to support a finding on behalf of the plaintiffs.

Pierce, who is also the former dean at the North Carolina Central University School of Law, says a settlement is in no way dispositive in future HBCU lawsuits against states.

“A settlement could be in the specific best interests of Maryland HBCUs,” Pierce says. “They may say let’s settle this and get what we can get. But a settlement would do little to clarify state and federal higher education policy.

“The greater service to HBCUs would be to set a legal precedent. You can’t factor a settlement into federal higher education policy or a state or federal court decision. A judge would say, ‘you want me to take judicial notice of a case you’ve settled? Are you out of your mind?’”

HBCU proponents, both in and outside Maryland, contend that anything less than a judicial remedy would relegate HBCUs to the more-or-less permanent status of stepchildren within the hierarchy of Maryland’s public higher education community, and do very little to advance the cause of HBCUs nationally.

“Every case can be won and every case can be lost, but there are times when you want to take the case to verdict,” says Garland, “this is one of those times. Let the court rule and let the chips fall where they may.”

While many are applauding the efforts of the Legislative Black Caucus for taking decisive steps in the FY 2014 budget to address the issue of parity for HBCUs, both advocates and attorneys representing the Coalition plaintiffs say the Caucus’ actions will not alter or supersede a decision by the court, since the settlement of a legislative budget bill has no relationship to any settlement of the Coalition lawsuit in federal district court were such to be considered in the future.