The Road To and Through Settlement Was Long & Stony Beginning With NAFEO Filing a Case With OCR, Department of Education in 1978
The National Association for Equal Opportunity in Higher Education (NAFEO), the 52 year old national membership and advocacy association for the 103 Historically Black Colleges and Universities (HBCUs) and 80 Predominantly Black Institutions (PBIs) is inestimably grateful to the Maryland State Legislature and Governor Hogan, for giving final authorization to a $577 million appropriation over ten years in furtherance of the settlement of the landmark case of the Coalition for Equity and Excellence in Maryland Higher Education v. The Maryland Higher Education Commission. The settlement of this case takes place at a most propitious time, when the nation is in the midst of a long delayed racial reconning, a new Administration has seized the reins of the Nation and is steering it on course, reversing the damaging Executive Orders and policies of the past.
The road to and through this case has been long and stony. It started in 1978 when NAFEO filed a case with the Office for Civil Rights in the US Department of Education. It traversed through the Department of Education several times and through Maryland administrative bodies, and the Maryland State Legislature before moving in the last twelve years through judicial bodies. NAFEO wrote in its testimony before the Commission to Develop the Maryland Model for Funding Higher Education, on November 12, 2008:
“NAFEO has worked with the State for more than thirty years to shape policies, programs and practices, and to prod investments of public financial and other resources in a manner that does not perpetuate dual and unequal higher education or that wittingly or unwittingly perpetuates the vestiges of past discrimination and maintains the status quo ante. For example, we were here when, at the time of NAFEO’s founding, Maryland was operating a segregated system of higher education. With NAFEO’s prodding and that of others, the State was forced by federal oversight to take action designed to erase vestiges of higher education segregation.
“The State outlined steps it would take to erase past discrimination in the several Partnership Agreements it reached with the U.S. Department of Education’s Office of Civil Rights (OCR), the most recent of which covered the period 2000-2005. That agreement required Maryland’s full compliance with federal and state laws related to discriminatory practices, as well as the requirements under U.S. v. Fordice. When the agreement expired, Maryland’s higher education commission reported to OCR in June of 2006 that the State “has satisfied its commitments and that there are no vestiges of a dual higher education system that once existed in the State.” NAFEO disagreed based on information available to it from its members, public documents and reports. When the commission submitted its report of having satisfied its commitment under the consent decrees, NAFEO also disagreed based on the fact that Maryland had approved the duplication of at least one HBI program at a nearby TWI that same year, in violation of U.S. v. Fordice. Two bills were subsequently introduced in the state legislature, one to prohibit such duplication, and the second petitioning lawmakers for supplemental funding to HBIs to eliminate funding disparities with TWIs. Both measures failed.
“The Maryland Coalition for Equity and Excellence in Maryland Higher Education, an advocacy group made up of alumni and friends of HBIs, filed a rejoinder to the state’s report to OCR, which challenged the state’s contention that it is in full compliance with state and federal statutes as they relate to Black schools. The group later filed a lawsuit against Maryland claiming the state has failed to live up to its Partnership Agreement with OCR.”
The vision, exemplary recordkeeping, leadership and dogged determination of Dr. Earl Richardson, former President of Morgan State University, positioned this case to move from administrative branches of government through the judicial branch. The case would not have been possible without Dr. Richardson.
Mr. David J. Burton President of the Maryland Coalition for Equity and Excellence in Higher Education, and a richly diverse group of courageous and determined Maryland HBCU alumni, students, and friends of the HBCUs, served as plaintiffs, aggressively advanced this case under the banner of the Maryland Coalition. They established and sustained public opinion in support of the lawsuit, that made a tremendous difference in the case. We are deeply indebted to the Maryland Coalition trailblazers.
The Maryland HBCU presidents, other administrators, faculty and staff, provided invaluable support during the trial
NAFEO, the State of Maryland, and the other states in the United States that maintain a dual and unequal higher education system– one historically White and one historically Black– owe the attorneys who masterfully guided this case through the judicial phase, untold gratitude. We are grateful to the Lawyers Committee for Civil Rights Under Law and its former Vice President & Counsel, Attorney John Brittain, now a member of the august faculty of the David A. Clark Law School at the University of the District of Columbia, and Pace J. McKonkie, founder and Director, Morgan State University’s Robert M. Bell Center for Civil Rights in Education. We are inestimably grateful for the strategic, bold, and indefatigable pro bono efforts, Michael D. Jones, a partner at the law firm of Kirkland & Ellis LLP, and other affiliated attorneys, for providing the sterling pro bono counsel that enabled us to bring this case to closure and to turn the page on a new chapter in Maryland’s higher education quest for excellence and diversity.
In NAFEO’s friend of the court brief in the Fourth Circuit urging the court to uphold the District Court’s liability order that unnecessary program duplication in Maryland is a Constitutional violation under Fordice and to enforce the remedies order to create new unique, academic programs at HBCUs, NAFEO opined:
“A diverse student body is crucial to the success of HBCUs, just as it is to TWIs. States, like Maryland, must live up to their legal obligation to desegregate the entire higher education system. Desegregating only TWIs is not enough. Maryland is obligated to avoid policies that lead to segregation of HBCUs, including unnecessary program duplication and the persistent inadequate funding of HBCUs. Failure to do so fosters segregation at HBCUs, crippling their chances of success and depriving the residents of the State of the intellectual, research, economic, moral, spiritual, and social benefits that prosperous HBCUs provide.
“Avoiding those practices is important for ensuring that all of the students and families of the State enjoy the educational value of diversity. The Supreme Court has recognized attaining the benefits of diversity in higher education as a compelling state interest (Grutter v. Bollinger). Through institutional diversity, students benefit from the intellectual, cultural, civic, religious, and personal experiences of a range of students, reflecting the richness of the heterogenous, pluralistic states and society.”
By settling the case of Coalition for Equity and Excellence in Maryland Higher Education v. The Maryland Higher Education Commission, the State of Maryland has made history and changed the higher education landscape not only in the State of Maryland, but also in similarly situated states across the nation by establishing the precedent for good state practice for defining “comparability and competitiveness” of public HBCUs and HWCUs, and establishing a clear, consistent, common instrument with which to inventory and strengthen state public colleges and universities.
By their actions in closing this case, the Maryland State Legislature and Governor Hogan joined in liberating “The Free State” from remaining vestiges of its sorry history of de jure discrimination.
President & CEO 2004-present
National Association for Equal Opportunity in Higher Education (NAFEO) &
Outside Pro Bono Counsel, NAFEO 1980-2004