While the Coalition for Equity and Excellence in Maryland Higher Education Inc. sued the Maryland Higher Education Commission in 2006, the lawsuit – which goes to trial Jan. 3 in a Baltimore federal court – is really rooted in more than 50 years of education litigation, beginning with the 1954 Brown v. Board of Education decision by the U.S. Supreme Court.
The Supreme Court outlawed all “separate but equal” facilities in the United States, declaring that “separate is inherently unequal.” The next year, the justices ordered that the nation’s school systems be desegregated “with all deliberate speed.”
For all school systems, including higher education, the court’s rulings were later reinforced by Title VI of the U. S. Civil Rights Act of 1964, which bars discrimination by any entity or program that receives federal funds.
Maryland has admitted to operating a segregated higher education system – known as “de jure segregation” – but says it ended with the Brown decision.
As late as 1969, however, Maryland was among 10 states cited by what now is the Office for Civil Rights of the U.S. Department of Education for operating a segregated and unequal university system. The next year, Maryland submitted a desegregation plan, but OCR determined it to be insufficient.
That decision began years of negotiations toward an acceptable desegregation plan for Maryland’s system. An agreement was reached in 1974, but OCR informed Maryland two years later that it had problems with the state’s implementation of that plan. As a result, OCR said it would initiate enforcement measures against Maryland to block its Title VI funds.
But Maryland filed a lawsuit instead, preventing OCR from holding up its money while other issues were resolved via the courts. Negotiations continued, however, and the state submitted another desegregation plan – this time in 1980 – and OCR, again, found it insufficient to bring Maryland into compliance with federal law.
Two years later, in 1982, a consent decree ended the litigation caused by the 1976 lawsuit brought by the state – and continuing negotiations resulted in Maryland and OCR agreeing on a desegregation plan in 1985.
That plan was to be implemented over five years.
“The 1985 plan was effectively the first substantive desegregation plan that was presented by the state of Maryland that was ultimately accepted by OCR as a plan that would work, so long as the state did what it said it would do,” said Pace J. McConkie, a former Maryland Assistant Attorney General who now is director of the Robert M. Bell Center for Civil Rights in Education at Morgan State University.
The plan was significant in that it required the state to genuinely integrate the traditionally White institutions (TWIs) and enhance historically Black colleges and universities (HBCUs) “to the point to where they would be comparable and competitive institutions with respect to the state’s TWIs, specifically citing operating budgets, capital facilities and academic programs,” McConkie said.
Three years later, the Maryland Higher Education Commission (MHEC) was formed, and in 1991 the agency reported its desegregation efforts over the previous five years to OCR. The federal agency did not formally respond. “I am aware of no record of OCR coming in to do a compliance review at that time,” McConkie said.
However, 1992 would prove to be a watershed in higher education. The Supreme Court ruled in U.S. v. Fordice that Mississippi had operated a segregated higher education system, with the justices setting the legal standards to be imposed upon states that still needed to remedy the inequities of segregation.
The Fordice standards addressed an array of higher education areas, including – but not limited to – admissions policies, program duplication and “mission assignments.”
“A state does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system and that continue to foster segregation,” the Supreme Court ruled. It added, “We do not agree … that the adoption and implementation of race-neutral policies alone suffice to demonstrate that the state has completely abandoned its prior dual system.”
“It wasn’t just enough to just open the doors and say we’ll admit Black students to the White schools and White students to the Black schools,” McConkie said, “the state needed to affirmatively eradicate the remaining vestiges, or effects, of its segregated system.”
In 1994, OCR notified the state that Fordice applied to Maryland and its higher education system.
“OCR made clear to Maryland that, in their view, the state was still not in compliance with the law, that, indeed, it had not been certified as having been in compliance with the law, and that its compliance would be measured by the Fordice standards,” McConkie said.
In 1999, OCR began a compliance review and in 2000, MHEC and OCR produced a “Partnership Agreement.”
In the agreement, to be implemented over five years, Maryland committed to nine specific actions, including “enhancing” the state’s four HBCUs to the position of being “comparable and competitive with” the TWIs “in all facets of their operations and programs,” including “enhancing the uniqueness and mix of quality academic programs that are not unnecessarily duplicated at proximate TWIs.”
Among other things, the state also pledged to increase funding to the HBCUs, lower faculty-student ratios and upgrade facilities.
The agreement also states, “The duration of this agreement will extend from the date it is signed through December 31, 2005, although it may be extended as necessary for the completion of certain … provisions contained in this agreement.”
To that end, MHEC sent OCR a letter in 2006 asserting its compliance with the agreement.
“The data from our investigation indicates that Maryland has complied with all nine of the commitments made in the Partnership Agreement,” said the June 19 report, signed by then-MHEC Chairman Kevin M. O’Keefe and Calvin W. Burnett, Maryland’s Secretary of Higher Education.
A spokesman for the Office for Civil Rights in Philadelphia, however, recently stated: “OCR conducted a compliance review [in 1999] regarding the state of Maryland’s obligation to eliminate any remaining vestiges from its formerly de jure segregated system of higher education, consistent with Title VI of the Civil Rights Act of 1964 and the U.S. v. Fordice Supreme Court decision.
“The compliance review was resolved on Dec. 6, 2000, with an agreement between OCR and the state of Maryland,” the statement continued. “OCR continues to monitor the implementation of that agreement.”