Podberesky v. Kirwan

• Citation: 838 F. Supp. 1075
• Decision Date: 22 November 1993
• Docket Number: Civ. No. JFM-90-1685.
• Parties: Daniel J. PODBERESKY, Plaintiff, v. William E. KIRWAN, President of the University of Maryland at College Park, et al., Defendants, and Monica Greene, et al., Defendant-Intervenors.
• Court: U.S. District Court — District of Maryland

838 F. Supp. 1075

Daniel J. PODBERESKY, Plaintiff, v. William E. KIRWAN, President of the University of Maryland at College Park, et al., Defendants, and Monica Greene, et al., Defendant-Intervenors.

Civ. No. JFM-90-1685.

United States District Court, D. Maryland.

November 18, 1993.

Amended Order November 22, 1993, Nunc Pro Tunc.

Samuel Podberesky, Randallstown, MD, Richard A. Samp, Washington Legal Foundation, Washington, DC, for plaintiff.

Evelyn O. Cannon, Andrew Baida, Richard A. Weitzner, Office of the Atty. Gen., Baltimore, MD, for defendants.

Elaine R. Jones, Director-Counsel, Norman J. Chachkin, NAACP Legal Defense & Educational Fund, Inc., New York City, Janell M. Byrd, Randy E. Hayman, NAACP Legal Defense Fund, Washington, DC, William J. Murphy, John J. Connolly, Murphy & Shaffer, Baltimore, MD, Sally P. Paxton, Jacqueline R. Depew, Fulbright & Jaworski, Washington, DC, for defendants-intervenors.

OPINION

MOTZ, District Judge.

The question posed in this case is whether a public university, racially segregated by law for almost a century and actively resistant to integration for at least twenty years thereafter, may — after confronting the injustice of its past — voluntarily seek to remedy the resulting problems of its present, by spending one percent of its financial aid budget to provide scholarships to approximately thirty high-achieving African-American students each year.

The case is now before me on remand from the United States Court of Appeals for the Fourth Circuit. I previously upheld the Benjamin Banneker Scholarship Program, a scholarship program at the University of Maryland at College Park¹ open only to African Americans. Podberesky v. Kirwan, 764 F.Supp. 364 (D.Md.1991) (Podberesky I). In reversing my decision, the Fourth Circuit ruled that I had failed to make specific findings of present effects of past discrimination. It thus remanded the case for a determination on that issue. Podberesky v. Kirwan, 956 F.2d 52 (4th Cir.1992) (Podberesky II). After the remand, UMCP engaged in an administrative fact-finding process to decide whether to continue the Banneker Program. In April 1993, the University issued a Decision and Report in which it concluded that the Program should be continued. Thereafter, the parties engaged in additional discovery and, at the conclusion of the discovery, filed cross-motions for summary judgment. Those motions were argued on October 22, 1993 and are now ripe for decision.²

I.

Banneker scholarships currently provide full financial support for four years of study at UMCP. The most recent data available in the record as to the value of a Banneker scholarship is for the 1990-91 academic year. That year the scholarships awarded to in-state students were valued at $7,571 per year and the scholarships awarded to out-of-state students were valued at $11,627 per year. The aggregate annual cost of the Banneker Program during the 1990-91 school year was $594,351. It accounted for approximately one percent of UMCP's total financial aid budget. Def. Ex. 6 at 9.

The scholarships are awarded each year to black high school seniors on the basis of merit. In the fall of 1990, the minimum eligibility requirements were a 900 S.A.T. score and a 3.0 grade point average. Plaintiff met these requirements, having scored 1340 on the S.A.T. exam and having maintained an unweighted grade point average of 3.56. He applied for a Banneker scholarship but was not considered because he is not African-American. Twenty-eight Banneker scholarships were ultimately awarded to students entering UMCP in the fall of 1990. A total of 3145 freshmen were admitted that year.

II.

The history of African-American higher education in Maryland before Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) is typical of most southern states. Maryland's policy towards the education of its black citizens was characterized by the reluctant establishment of institutions of higher education for blacks that were segregated, vastly underfunded and consistently neglected.³ As a result, when the State Commission on the Higher Education of Negroes investigated the conditions in the state's black colleges in 1937, it documented dramatic funding disparities and drastically inferior facilities and curricula in every major field, including teacher education, agricultural and vocational education, liberal arts, fine arts, graduate and professional training, and extension opportunities. In light of this evidence the Commission concluded that the state "had failed to make adequate provision for Negroes."⁴

By the late 1930s, the state was under pressure, mainly from the National Association For the Advancement of Colored People, to equalize the quality of its educational institutions in order to comply with the constitutional requirements articulated by the Supreme Court in Plessy v. Ferguson.⁵ In 1945, the Maryland Commission on Higher Education recommended that African-Americans be admitted to the state's all-white graduate schools and that funding for all-back colleges be increased to parity with that of the white schools. Harry "Curley" Byrd, President of the University of Maryland from 1935 until 1953, agreed that funding should be equalized⁶ but was vehemently opposed to integrating the University's graduate and professional schools: "Admission of African-Americans to the Graduate School would mean admission to College Park, and would destroy the very segregation sic idea for the undergraduate school."⁷ In 1949, Byrd recommended privatizing UMCP rather than allowing black graduate students to enroll there.⁸ However, against the background of the two Supreme Court decisions requiring the admission of black students to segregated graduate schools in Oklahoma and Texas,⁹ Byrd's suggestion was rejected and UMCP admitted its first black graduate student in 1951.¹⁰ Any further debate over the propriety of integrating the University of Maryland system was mooted by Brown v. Board of Education.

Maryland's reaction to Brown was restrained but unenthusiastic. Unlike other states where schools had been segregated by law, there was no policy of massive resistance and, in June of 1954, the University's Board of Regents agreed to admit "all residents of Maryland without regard to race."¹¹ However, the state did little to promote integration. The Board of Regents, like the governing bodies of many other segregated state schools, pledged to admit black students, but imposed new admissions standards and required standardized testing of all applicants. Such requirements served to exclude African-Americans who might have otherwise been admitted during the first years after Brown.¹² Similarly, in 1960, when the Governor proposed a complex plan to accommodate the growth of UMCP by converting several regional state colleges into additional branches of the flagship campus, no all-black colleges were considered for conversion, thus preserving the segregated character of College Park.¹³ Most importantly, UMCP simply made no effort to recruit African-American student. As the Board of Trustees of the Maryland State Colleges reported in 1969, "it is only recently that formerly white colleges have made more than perfunctory efforts at other race recruitment."¹⁴ The result of this neglect was not surprising: "For a vast majority of parents and students the question of race simply does not arise. Rather, it is generally taken for granted by both black and white students and parents that the choice of which college a student attends takes place within the framework of colleges of one's own race."¹⁵

Not only did UMCP's administration fail to take steps to integrate its campus in the decade and a half after Brown, it also failed to offer a particularly sympathetic ear to the concerns of the few African-American students who attended the University in the late fifties and early sixties. In 1963, a faculty committee refused to allow students to form an one-campus chapter of the Congress for Racial Equality. The following year the University discouraged Martin Luther King, Jr. from speaking on campus, and, that same year, the Dean of Student Life forbade campus chaplains from participating in civil rights activities.¹⁶

The environment in which black students found themselves during the early 1960s was notably inhospitable. The University, despite its worries about the effect that Dr. King's presence on campus might have, permitted George Wallace to speak at the school in 1964. According to University historian George Callcott, Wallace attracted the largest crowd in the history of the University. "The emotional intensity" of the eight thousand students, Callcott wrote, "exceeded that of a football game."¹⁷ Off-campus housing was completely segregated and when an, integrated dormitory was established for a summer "citizenship" program in 1966, the Ku Klux Klan marched in protest.¹⁸ Considering UMCP's institutional indifference to integration and the hostility of the campus climate, it is not surprising that black student enrollment stayed below 1% of the undergraduate population from 1954 until the end of the 1960s.¹⁹

In 1968, the United States Department of Health, Education and Welfare's Office of Civil Rights (OCR) began pressuring the state of Maryland to integrate its institutions of higher learning.²⁰ The University responded by establishing the Committee on Meaningful Integration.²¹ The initial recruitment plan proposed by the University offered enhanced academic programs at UMCP in order to attract African-American students from the state's predominantly black colleges.

Events between 1970, when the plan was proposed, and 1973, when OCR rejected the plan as "ineffectual", demonstrated that the University was not committed to the "meaningful" integration that the name of the Committee promised.²² The University did not increase its financial aid expenditures to meet the needs of black students most of whom...