As the plaintiffs continued its case in a trial of a $2.1 billion lawsuit to bring parity to Maryland’s four historically Black colleges and universities, a former chairman of the Maryland Higher Education Commission testified how the state continued to duplicate programs at traditionally White institutions despite an agreement with the federal government to stop doing so.
John J. Oliver Jr., who had served as MHEC chairman from 2000 to 2005, testified that – as signatory to a “Partnership Agreement” in 2000 with the Office for Civil Rights (OCR) of the U.S. Department of Education – state officials understood that they could not replicate programs at traditionally White institutions (TWIs) without “sound educational justification.”
Oliver, publisher and chief executive officer of the Afro-American Newspapers Inc., testified that the justification rule imposed by the agreement was “a very high standard.” His testimony came on Jan. 12, day six of the trial before U.S. District Court Judge Catherine C. Blake.
The trial, which began Jan. 3 and is based on the lawsuit brought by Coalition for Excellence in Maryland Higher Education Inc., is expected to last six weeks.
The Partnership Agreement, to be implemented over five years, stemmed from a compliance review by OCR and protracted negotiations between the agencies.
The document committed Maryland to nine specific actions, including “avoiding unnecessary program duplication and expansion of mission and program uniqueness and institutional identity at the HBCUs.”
But despite that particular commitment – No. 8 – Oliver testified that MHEC’s board did approve one such program – albeit after his tenure expired in June 2005. That was for a joint Master’s of Business Administration (MBA) program to be offered by Towson University and the University of Baltimore (UB).
The proposal was rejected in the fall of 2004 by Maryland Secretary of Higher Education Calvin W. Burnett, citing duplication of similar programs at two HBCUs, Bowie State University and, particularly, Morgan State University.
“It was duplication without sound educational justification,” Oliver testified, describing Burnett’s justification.
Burnett, however, reversed himself the following March, Oliver testified. “The Secretary recognized that the proposal was an unnecessary duplication, but he felt that there were sound educational justifications for it to nevertheless be approved,” he said.
“He felt that Towson had a student body that was large enough and a faculty that was capable enough to be able to teach MBA-level programs and that it would be therefore convenient for Towson to be accorded the creation of an MBA program,” Oliver added, under questioning by Savaria B. Harris of the Kirkland & Ellis LLP law firm in Washington.
But, “He did not effectively convince us that his offering for educational justification was adequate to approve the program,” Oliver testified, referring to the MHEC board.
OCR informed Oliver and Burnett of its concerns about the reversal, he testified, and the former chairman said he sought an opinion from a Maryland Assistant Attorney General advising MHEC on whether the Towson-UB program had violated the Partnership Agreement, as well as federal civil rights law.
“I felt that this proposal in the matter at hand was serious enough that we should have a legal foundation from our counsel, particularly since we had more or less received a letter of this magnitude from the Office of Civil Rights, which we couldn't afford to take lightly,” Oliver testified.
The joint MBA program would violate the Partnership Agreement and Title VI of the U.S. Civil Rights Act, according to the memorandum, Oliver testified.
After Burnett’s reversal of his prior rejection of the Towson-UB program proposal, MHEC held a hearing in May 2005 to determine whether or not to overturn the Burnett decision. Following the hearing, Oliver testified that instead of taking direct action on the proposal, MHEC decided to instead have the stakeholders involved in the Towson-UB program proposal meet over a 60 day period with a coordinating group appointed by Oliver to seek out a “collaborative or cooperative alternative solution”.
In June, Oliver’s term expired – and following the failure to reach any collaborative or cooperative alternative solution during the 60 day period, MHEC approved the Towson-UB MBA program. It began the following year.
Under cross examination by Kenneth L. Thompson of the Venable LLP law firm in Baltimore, Oliver testified as to why he described Morgan’s MBA program as segregated earlier on the stand.
“The diversity at Morgan had substantially declined over the years, as well as its student body, in that particular program,” he said. “And that was very much a concern of the commission at that point.”
In other testimony, John A. Sabatini Jr., a former Maryland Secretary of Higher Education who served MHEC during Oliver’s term as chairman, testified that in 1999, the state was not in compliance with earlier commitments to dismantle its segregated system – and that’s why MHEC began the negotiations with OCR that ultimately led to the 2000 Partnership Agreement.
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