HBCU Supporters Eye Legislative Solution To Protracted Litigation

Thirteen years after filing a lawsuit alleging the state of Maryland had willfully supported predominantly white institutions over historically black colleges, backers of the traditionally black schools sense an opportunity to resolve the case — but they see that opportunity in the state legislature, not the courts.

Years of protracted litigation, mediation and negotiations have left Maryland and the Coalition for Equity and Excellence in Higher Education without a resolution in the case, despite rulings from a federal judge in the coalition’s favor.

Leadership changes and failure this summer in the parties’ fourth attempt at mediation have created a new sense of urgency and the hope that the legislature could be the venue to resolve the lawsuit.

“It’s like we’ve kind of hit a sweet spot where everyone’s acknowledging they want to settle it,” said Del. Charles Sydnor. “I think we’ve given the parties sufficient time to try to do something.”

Sydnor, a Baltimore County Democrat, has led since 2017 efforts by the Legislative Black Caucus to find a resolution to the lawsuit. Previous efforts were rebuffed, but he said this year could be a “perfect storm.”

13 years

Litigation over disparities between traditionally white institutions and the black colleges dates to 2006. The Coalition for Equity and Excellence in Higher Education accused the state higher education commission of segregation by allowing traditionally white schools to duplicate programs that had been unique to the historically black colleges.

The state’s four HBCUs are Bowie State University, Coppin State University, Morgan State University and the University of Maryland, Eastern Shore.

The state said that its colleges had fully integrated and objected to proposed remedies that would spread programming among schools.

The parties were repeatedly referred to mediation by the trial court but could never reach an agreement.

U.S. District Judge Catherine C. Blake ruled in 2013 that unnecessary duplication of programs by traditionally white institutions was a policy in Maryland. She held a separate trial on damages in 2017 after the parties failed to reach a settlement.

She ruled that a special master be appointed to oversee the creation of a remedial plan to address past unequal treatment of HBCUs.

Mediation ordered this year by the 4th U.S. Circuit Court of Appeals also failed and the case has returned to the 4th Circuit.

Some supporters of the HBCUs have called for the state to pay around $1 billion to settle the case, pointing to a similar settlement in Mississippi for $517 million in a case over three historically black colleges. They say that between inflation and the fourth Maryland HBCU, $1 billion is an approximate amount to the Mississippi case.

The plaintiffs have offered to settle the case for $577 million — a number House Speaker Adrienne Jones supports — while Gov. Larry Hogan has offered $200 million.

Money from any settlement would be used to help create new, unique programs at the universities. Backers say the funds would go toward creating the infrastructure and dedicated funding for the new programs.

A quicker solution

Trying to resolve the case through litigation would likely take years beyond the 13 already spent in court. Whoever loses in the 4th Circuit will likely ask for an en banc hearing before the entire panel. That loser is likely to ask the U.S. Supreme Court to intervene.

After that, the case would return to the district court.

The legislature could resolve the matter by April, if it passes a settlement this year.

“My understanding is that there is movement in the legislature around a resolution,” said Michael D. Jones, the coalition’s attorney. “It does seem to me that that is probably the most immediate pathway to a resolution.”

Supporters are heartened by the House of Delegates new speaker, Adrienne Jones, a Baltimore County Democrat who is also the chamber’s first black speaker.

She sent a letter to Hogan this fall supporting the plaintiffs’ proposed $577 million settlement and reiterated that support at a rally in Annapolis last month.

The state can afford to pay the settlement, Jones said, something she says she knows because she previously served as chair of the Appropriation Committee’s Capital Budget and Education and Economic Development Subcommittees.

A change of leadership in the Senate has also brought new hope that a resolution can be reached legislatively. Sen. Bill Ferguson, D-Baltimore, will take over for outgoing Senate President Thomas V. Mike Miller.

HBCU supporters believe Ferguson will be more supportive of their ideas. In a statement, Ferguson said he believes the litigation has gone on too long.

“Nobody has benefited from protracted litigation, and our entire University system would benefit from a resolution to this case,” he said. “Like many of the difficult questions we face in the upcoming session, I am confident that the 47 talented members of the Senate, together with the House of Delegates and the governor, will look at the issue with open eyes and a willingness to find a resolution.”

In an October letter to Jones, Hogan said he was committed to his $200 million offer, but did not appear to stand in the way of a legislative solution.

“I understand that the plaintiffs sought the intervention of the legislature in this legal matter,” he wrote. “As we approach the upcoming budget process, it is certainly within the purview of you and your colleagues to attempt to find ways to fund a settlement at the levels you are seeking.”

At the same time, some are skeptical that the new leadership will help bring a settlement closer.

Joan Carter Conway, a former Democratic senator representing Baltimore, regularly introduced legislation seeking a resolution to the lawsuit.

She said she was proud of Jones for her handling of the issue but also doubts new leadership will lead to a solution.

“I’m always hopeful,” she said. “I just don’t see the transition in the legislature being much different. They really want to wait and allow the court case to continue.”

Miller had been hesitant to address the issue because it was still being litigated and because of the potential cost of a settlement.

Time for action

More activity has gone into finding a legislative solution this year than there has been in the past.

Coalition supporters held a rally last month in Annapolis urging lawmakers to solve the issue.

That was just the beginning of what supporters are calling 100 Days of Action. They are also holding town halls across the state to help bring attention to the issue.

Sydnor believes that renewed support will help legislation’s chances.

“If you don’t have public support you are in for a tougher fight,” he said.

Sydnor wants to ensure that the legislation he is crafting will not just be about sending more money towards the HBCUs.

He wants to create a system to ensure that the historically black colleges can create the types of unique programs that will allow them to be competitive and attract students.

“I think just putting money there without kind of building something around it, I don’t think that’s the right thing to do,” he said. “I don’t think it’s going to solve anything.”

Despite her doubts, Carter Conway hopes that a settlement is reached.

She is unhappy that the legislation will likely focus on the $577 million number, but it is still something, she said.

“Hopefully, before I die, we will have a resolution,” she said.

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