Many higher education observers were applauding last week when the decision from a U.S. District Judge declared that the state of Maryland had failed in its obligation to eliminate traces of de jure segregation in its system of public higher education. More specifically, Judge Blake ordered the parties to enter into mediation to figure out how to resolve what is commonly referred to as "program duplication" which superficially places neighboring institutions in competition in ways that ostensibly perpetuate a dual system of higher education. In context, this might mean that one Historically Black Institution and one Traditionally White Institution, in close proximity, offer the same degree programs in violation of previous legal rulings and a 1969 Office of Civil Rights notice that Maryland was one of ten states operating a segregated system of higher education in violation of Title VI of the 1964 Civil Rights Act.
Notwithstanding the peculiarities of a 2013 ruling on school desegregation in the U.S., many bystanders and HBCU proponents were unsure of what to make of the ruling. What follows are three questions intended to further contextualize the decision, rebut some of the immediate reactions, and potentially advance the national conversation about public higher education.
Is this a game changer for HBCUs?
It is not yet clear what will actually be won or lost as a result of this case. One might expect that meditation involving high-powered attorneys to potentially transfer degree programs from TWIs to HBCUs will be contentious and that neither party will get exactly what they want -- assuming mediation is successful. This is especially true when the governor and leaders from the Maryland Higher Education Commission have already expressed their disappointment in the decision. It is expected that last week's decision will not change day-to-day operations at Maryland's public colleges and universities nor will it significantly alter the funding formulas used to determine appropriations. Judge Blake found "no basis to hold Maryland legally liable for any failure to provide additional funding to [public HBCUs in the state]." In the higher education context, desegregating public universities meant that rancorously allowing one student to attend met the legal threshold (e.g., James H. Meredith attending the University of Mississippi in 1962). If the state of Maryland does just enough to legally alleviate the condition of program duplication there is little evidence to suggest that this will be a game changer for the public HBCUs in the state.
Is this a green light to pursue similar action in other states?
On its face, this decision may seem as if the crack in this door has widened. In some respects this might be true, but declaring this open-season is likely premature. The efforts that culminated in last week's decision were the result of decades of legal action that predates the state's 1985 desegregation plan. It is the result of steady assistance and millions of dollars of pro bono work provided by a prominent law firm with offices in six U.S. cities and five others across the globe. Moreover, the application of Title VI of the Civil Rights Acts and the landmark Fordice case are unique to every state and its public system of higher education. This kind of litigation also places HBCU presidents who lead institutions governed by state agencies in a precarious position. In the Maryland case, the Plaintiff (Maryland Coalition for Equity and Excellence) took action on behalf of public HBCUs against the Defendant (Maryland Higher Education Commission) which governs and funds the very same group of institutions. If anything, this case is evidence that this path is inherently divisive, expensive, complicated and long drawn with a potentially nebulous reward assuming victory can be claimed.
Is a legal decision really what HBCUs need?
If asked to list the top three actions that could significantly improve the position and competitiveness of HBCUs I'm not sure a court ruling minus an actual remedy would make the list. Historically the courts have been hesitant to dictate behavior in higher education with heavy-handed ruling. One downside is that some issues, even those that reach the Supreme Court (e.g. Bakke and Fordice) remain unsettled. Certainly, there is compelling evidence of past and even more recent transgressions against HBCUs. However the future of this institutional sector does not necessarily rest in court decisions like the one in Maryland last week. The future will most likely be determined by how well HBCUs exercise exceptional leadership, effective governance, and the spirit of innovation. I am not suggesting that we ignore an opportunity to correct what is wrong. I am suggesting that HBCU proponents be clear about the best opportunities to move ahead and to consider whether this kind of legal action rises to the top of the list.
The good news is that this case has been influenced by two intelligent and judicious higher education scholars. I am hoping that Drs. Walter Allen, Professor of Higher Education at UCLA and Clifton Conrad, Professor of Higher Education at the University of Wisconsin-Madison will be called upon as earnest authorities. Both provided expert testimonies in this case and are capable of keeping conversations regarding this issue honest. Regardless of the outcome we must remember that the Maryland ruling was intended to settle an old problem. There are present challenges and new ones on the horizon for HBCUs that can't be resolved in court or overlooked in celebration.