Earlier this month, Maryland’s Attorney General asked federal judge Catherine C. Blake to immediately stop the process of appointing a federal monitor who could bring long awaited equity and justice to Maryland’s four Historically Black Institutions (HBIs). The State wants no monitor at all, but has signaled that if there is to be a monitor, it should not be an African American.
At stake for the HBIs are specialty academic programs—the life-blood of higher education. These programs attract students, business partnerships, research funding, and talented faculty. The position of the State is that programs like these belong almost exclusively at the historically favored Traditionally White Institutions (TWIs). At the recent trial, the TWI Presidents who testified all discussed how vitally important these kinds of programs are to their success.
But in 2013, Judge Blake ruled that Maryland violated the Constitution by maintaining a 10:1 program disparity in favor of the TWIs. This disparity, the court declared, was “comparable to, and in some cases more pronounced” than Mississippi in the 1970s. Worse than 1970s Mississippi is unconscionable.
For decades, Maryland had promised to remedy this disparity, including in a 2000 Agreement with the Office of Civil Rights. But as Judge Blake noted: “unfortunately the State did not follow through.” A brave group of HBI students and alumni then sued, aided by law students at Howard University’s Civil and Human Rights Clinic. The dean, former Baltimore mayor Kurt Schmoke, gave the lawsuit the go-ahead. Ever since, Maryland has fought against the HBIs, spending millions of dollars on outside counsel fees and calling the HBIs’ quest for justice “ridiculous” and “a pipe-dream.”
In her opinion, Judge Blake noted that “the State has failed to adequately recognize and support the mission potential of its HBIs.” In ruling for the Plaintiffs, the judge referred to some of the State’s historical documents that shed light on the State’s current actions. She indicated that Maryland made no pretext of “separate but equal”, referencing a 1947 report which admitted that “the state has consistently pursued a policy of providing higher education facilities for Negroes which are inferior to those provided for Whites.”
Presidents of the HBIs fought for justice as best they could, but a 1950 report noted the “continuous uphill struggle on the part of the Negro colleges” to obtain colleges “on par with the White institutions.” Moreover, Judge Blake noted that in the 1970s “Maryland made very large investments in TWIs, particularly newly created programs at Towson and UMBC, that undermined” the HBIs.”
HBI advocacy led the State to appoint a commission in 2008 to study how the State treats the HBIs compared to the TWIs. This commission, the Bohannon Commission, observed that the HBIs “visibly lag” the TWIs. It encouraged the State to restructure its system—one that created huge disparities in favor of the TWIs. But the State ignored the commission.
To address the disparity in academic programs, Judge Blake ordered Maryland to submit a remedial plan, to include new programs such as veterinary medicine, aging studies, and healthcare offerings, as well as various information technology-based programs. But the State balked.
As a candidate, Attorney General Brian Frosh publicly promised to represent the interest of the HBIs as well as the TWIs, but he has failed to keep that promise. As Judge Blake noted, the “State did not engage in a serious effort to propose a remedy.” Instead, it offered a one-sided proposal that favored the TWIs. The judge rejected it. The HBIs presidents lamented that it was “disheartening” and not transformational.
Maryland’s “disheartening” attitude is best described by someone who has seen it first hand, former Lieutenant Governor Michael Steele. In a 2013 article in the AFRO-American newspapers, Mr. Steele praised the judge’s ruling and described the racially tinged opposition he encountered when advocating for the HBIs. Wrote Mr. Steele: “I was stunned to have certain academic and legislative ‘leaders’ ask me directly why our administration would want to invest dollars in ‘those schools.’”
According to Mr. Steele, the State preferred to build up the historically privileged TWIs and have HBI students go to those TWIs if they wanted the programs. The concerns of the HBIs and their alums, he wrote, simply “fell on deaf ears.” Lest anyone think that Mr. Steele was describing attitudes from long ago, he clarified: “Understand that this occurred not in 1955 but in 2005.”
As Mr. Steele noted in praising Judge Blake’s decision: “it is time for those who value the education at our nation’s HBCUs to join those who have silently and bravely fought for them”.
Given what is at stake, it is time for HBI/HBCU allies to get involved, or in more contemporary words— to #StayWoke.
Maryland’s Legislative Black Caucus has signaled that fixing programmatic inequality is one of its top priorities, but their efforts could be undermined by the State’s current strategy. Ironically, while the Governor has removed from the State budget millions of dollars that the Attorney General’s Office was using to sue the Trump Administration, the State nonetheless continues to spend millions fighting against its own HBIs, in hopes of overturning the civil rights laws that protect them and public HBIs across the country. Such conduct is shameful.
It is time for everyone who cares about justice to join the Maryland Legislative Black Caucus and other allies of the HBIs to help defeat the State’s attempt to turn back the clock on civil rights protections for HBIs, because, #BlackCollegesMatter.
- Michael D. Jones, a partner at Kirkland & Ellis LLP is lead counsel for the Plaintiffs and an Executive Committee Member of Lawyers Committee for Civil Rights, co-counsel in the case.
- A. Dwight Pettit is an award winning Baltimore civil rights lawyer and former member of the University System of Maryland Board of Regents