The 2014 legislative session represents a missed opportunity for Maryland officials to address the constitutional violations cited by Federal District Court Judge Catherine C. Blake in an October 2013 ruling on the Historically Black Institutions Coalition case. The case was not among Gov. Martin O’Malley’s legislative priorities and discussion in the legislature was limited to the debate surrounding the defeat of separate bills advanced by Baltimore Sen. Joan Carter-Conway and Prince George’s Del. Aisha Braveboy.
Sen. Conway’s bill would have provided a mechanism for avoiding future instances of the illegal practice of unnecessary program duplication. Legislation proposed by Del. Braveboy would have provided funding support for making the HBIs unique and competitive with other public institutions in the state.
It now appears that the constitutional violations found by Judge Blake are unlikely to be resolved before Gov. O’Malley leaves office in January 2014. That is certain to be a millstone around the governor’s neck as he runs for higher elected office.
Any future effort to address the court’s finding now shifts to the various candidates for governor and attorney general. None of these candidates has, to date, indicated how he or she would respond to the HBI Coalition court ruling.
The three democratic candidates in particular, are currently serving as elected officials and bear some responsibility for the state’s present attitude toward the Blake ruling for the HBIs. Candidate Anthony Brown currently serves as Mr. O’Malley’s lieutenant governor. It would be interesting to know if he agrees with the findings of the court and intends to mediate a meaningful settlement or will he seek to maintain the state’s discriminatory higher education system by appealing the case? Will he commit to eliminating historic academic program duplication by transferring programs back to the HBIs and creating other new unique and high demand programs at HBIs as suggested by the court? Equally significant, would Mr. Brown revise state policies and practices to preclude program duplication?
The same questions must be asked of the other candidates. Attorney General Douglas Gansler probably has expressed more concern about the plight of HBIs than any other gubernatorial candidate. During forums on the Mark Stiener radio show, before audiences visiting Annapolis, and most recently, at a Montgomery College appearance with other candidates, Gansler pledged repeatedly to provide increased funding to the Historically Black Institutions. He also released a statement at the outset of the HBI Coalition case saying that as attorney general he is obligated by state law to represent Maryland in litigation, regardless of whether or not he personally agrees with the state’s position.
U.S. Attorney General Eric Holder has since issued an advisory indicating that attorneys general are not obligated to defend laws they believe to be discriminatory. The attorneys general of seven states relied on that advice in declaring that they will not defend their states’ ban on same sex marriage in pending and future litigation. To do otherwise, these chief legal counsels say, would amount to their defending discrimination.
If the mediation process now underway is not successful in negotiating remedies for dismantling Maryland’s segregated system of higher education, Holder’s advisory poses a special test for both Gansler as the sitting legal counsel for the State and those individuals who wish to succeed him. Would he or she follow the example of attorneys general in Kentucky, Virginia, California, Nevada, Oregon, Pennsylvania, and Illinois in refusing to represent their states in cases that would result in discrimination against certain individuals or groups of individuals?
Conversely, would he or she defend Maryland’s current system of higher education notwithstanding its discriminatory effects?
The primary election is on June 24. Voters must insist that candidates for governor and attorney general immediately declare their intent to bring the HBI Coalition case to a close or to make clear their intention to defend the existing system of segregation and discrimination.
Attorney A. Dwight Pettit is a former member of the Board of Regents, University System of Maryland.