Equity v. Md. Higher Educ. Comm'n
| Decision Date | 08 November 2017 |
| Docket Number | Civil No. CCB–06–2773 |
| Citation | 295 F.Supp.3d 540 |
| Parties | The COALITION FOR EQUITY AND EXCELLENCE IN MARYLAND HIGHER EDUCATION, et al. v. MARYLAND HIGHER EDUCATION COMMISSION, et al. |
| Court | U.S. District Court — District of Maryland |
Michael D. JonesDarren S. Gardner, Devin S. Anderson, Karen Natalie Walker, Michael L. Fitzgerald, Kirkland and Ellis LLP Aderson Bellegarde Francois, Howard University School of Law, Brenda Lanette Shum, Genevieve Terese Bonadies, Jon Marshall Greenbaum, Ray P. McClain, Lawyers Committee for Civil Rights Under Law, Washington, DC, John C. Brittain, Law Office of John C. Brittain Attorney At Law, Alexandria, VA, Raymond D. Kohlman, Law Office of Raymond D. Kohlman, Jamaica, NY, for Plaintiff.
Alicia Leigh Shelton, Cyril Vincent Smith, III, Zuckerman Spaeder LLP, Steven M. Sullivan, State of Maryland Office of the Attorney General, Christine M. H. Wellons, Maryland Higher Education Commission, Jennifer Ann DeRose, Katherine D. Bainbridge, Meghan Kathleen Casey, Office of the Attorney General, Baltimore, MD, Catherine S. Duval, David A. Reiser, Zuckerman Spaeder LLP, Washington, DC, for Defendant.
TABLE OF CONTENTS
The years of segregation under law at Maryland's public institutions of higher education came to an end some decades ago, and the State has much to be proud of in its public colleges and universities. Maryland's distinguished historically black institutions ("HBIs") serve a vital mission in our system of public higher education. Yet current policies and practices traceable to the de jure system, in the form of unnecessary program duplication having segregative effects at the HBIs, persist. In such circumstances, the Supreme Court has placed the burden squarely on the state to reform such policies "to the extent practicable and consistent with sound educational practices." U.S. v. Fordice , 505 U.S. 717, 729, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992).
In the several years since this court found that the plaintiffs, including the Coalition for Equity and Excellence in Maryland Higher Education ("the Coalition"), had proved the existence of unnecessary program duplication having segregative effectives at the HBIs, mediation proved unsuccessful and a lengthy remedies hearing followed. Unfortunately, the State did not engage in a serious effort to propose a remedy prior to the hearing and did not permit the Coalition's experts to consult meaningfully with relevant state actors including the presidents and faculty of the HBIs and of the state's traditionally white institutions ("TWIs").1 As more fully explained below, the court is forced to conclude that neither side's proposed remedies are, for different reasons, sufficiently practicable, educationally sound, and likely to achieve the greatest possible reduction in segregative effects to justify ordering their imposition. Instead, the court will order appointment of a Special Master, authorized to consult with all relevant decision makers, to propose a remedial plan including funding for new programs and student recruitment at the HBIs, but not the extensive transfer of programs from the TWIs to the HBIs requested by the Coalition.
All parties need to recall that this case is not about institutions but about the constitutional right of students to attend any public college or university for which they are qualified without being required to accept racial segregation at that institution. Maryland's TWIs already meet that standard of integration; Maryland's HBIs do not. A remedial plan must encourage other-race students to attend the HBIs, but it will not be educationally sound if it unduly harms the students at the integrated TWIs. Crafting such a plan is a daunting task requiring the good faith collaboration of the Coalition and the State. The court urges such collaboration to strengthen and enhance Maryland's HBIs for the benefit of all Maryland students, present and future.
This action dates back to 2006. Plaintiffs, The Coalition for Equity and Excellence in Maryland Higher Education and named individuals associated with the organization, (collectively, "the Coalition" or "the plaintiffs"), sued the State of Maryland, the Maryland Higher Education Commission ("MHEC"), and their officers in their official capacities (collectively, "the State" or "the defendants"), alleging violations of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. After a bench trial, the court issued an opinion in 2013 holding that under United States v. Fordice , 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), unnecessary program duplication within Maryland's system of higher education continues to have segregative effects for which the State has no sound educational justification. Coal. for Equity & Excellence in Md. Higher Educ. v. Md. Higher Educ. Comm'n , 977 F.Supp.2d 507, 544 (D. Md. 2013).2 Mediation regarding possible remedies commenced in January 2014 and continued for more than one year but was ultimately unsuccessful. (See Oct. 2, 2014 Order, ECF No. 398).
The parties then submitted competing remedial proposals to the court. The plaintiffs submitted an initial remedial proposal on May 5, 2015. (Pls.' First Remedial Proposal, ECF No. 406). The State filed its initial remedial proposal on November 20, 2015. (Defs.' First Remedial Proposal, ECF No. 447). On February 2, 2016, the court concluded that an evidentiary hearing was needed "to inform the court on the complex question of what remedies are educationally sound, justified by the scope of the violation found, and best targeted to remedy that violation while enhancing rather than harming Maryland's system of public education." (Feb. 2, 2016 Mem. and Order, ECF No. 460).3 The court stated that the defendants' remedial proposals "are neither adequate nor sufficiently specific," although it noted that collaborative programs—one aspect of the State's first remedial proposal—"are indeed helpful in certain circumstances." (Id. at 2). The court also noted that the plaintiffs' proposals "for creation of niche areas of programmatic concentration, with increased new and high-demand offerings, appear promising but need more thorough discussion." (Id. ). Finally, the court rejected the proposal of having Morgan State University ("Morgan") take over the University of Baltimore ("UB") and noted it was unlikely to order a remedy "that would essentially eliminate" the University of Maryland University College ("UMUC"). (Id. at 2 n.2).
On June 1, 2016, the State filed a motion for a protective order to prevent the plaintiffs from using or relying on mediation materials prepared and shared among the parties and the mediator. In particular, the presidents of Maryland's HBIs had developed proposals listing courses (and associated funding) that each institution would prioritize in the context of a proposed settlement; the defendants sought to block the plaintiffs from using these submissions in the court proceedings on remedy. (Defs.' Mot. for Protective Order, ECF No. 469). On August 12, 2016, the court granted in part and denied in part the plaintiffs' motion. Specifically, because of the confidentiality requirement in Local Rule 607.4, the court ordered that HBI submissions be stricken as exhibits from the plaintiffs' expert reports, but the court declined to strike the expert reports themselves. (Aug. 12, 2016 Order, ECF No. 485).
In the months leading up to the six-week remedies hearing—which took place in January and February 2017—the parties filed several other motions. On September 30, 2016, the State moved to exclude expert testimony concerning the effects of "programmatic niches," "high-demand" programs, and "unique" programs on HBI enrollment by other-race students, claiming such testimony is inadmissible under Fed. R. Evid. 702. (Defs.' Mot. to Exclude Expert Testimony, ECF No. 495) (" Daubert motion"). The plaintiffs responded in opposition to the Daubert motion on December 9, 2016. (" Daubert Opp."). In part, the plaintiffs urged the court not to rule on the motion to exclude expert testimony before the remedies hearing. (Id. at 32). The court agreed with the plaintiffs and declined to rule on the Daubert motion before the remedies hearing commenced in January 2017.
In addition to the Daubert motion, the State filed a motion to compel the plaintiffs to answer discovery requests related to the plaintiffs' Article III standing. (Defs.' Mot. to Compel, ECF No. 503). On December 16, 2016, the court denied the motion to compel additional discovery. (Mem. and Order,...
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