Podberesky v. Kirwan

• Decision Date: 15 May 1991
• Docket Number: Civ. No. JFM-90-1685.
• Citation: 764 F. Supp. 364
• Parties: Daniel J. PODBERESKY v. William E. KIRWAN, President of the University of Maryland at College Park, and the University of Maryland at College Park.
• Court: U.S. District Court — District of Maryland

764 F. Supp. 364

Daniel J. PODBERESKY v. William E. KIRWAN, President of the University of Maryland at College Park, and the University of Maryland at College Park.

Civ. No. JFM-90-1685.

United States District Court, D. Maryland.

May 15, 1991.

COPYRIGHT MATERIAL OMITTED

Andrew Baida, Richard A. Weitzner, Office of the Atty. Gen., Educational Affairs Div., Baltimore, Md., for defendants.

MEMORANDUM

MOTZ, District Judge.

Daniel J. Podberesky, a freshman at the University of Maryland at College Park ("UMCP"), challenges UMCP's Benjamin Banneker Scholarship Program. Banneker scholarships are available only to black students, and Podberesky (who is Hispanic) was denied consideration for one. He has sued UMCP and William E. Kirwan, the president of UMCP. Podberesky seeks injunctive and compensatory relief under 42 U.S.C. §§ 1981, 1983 and 2000d. Discovery has been completed, and he and defendants have both moved for summary judgment.

I.

A. The Immediate Controversy

Banneker scholarships currently provide full financial support for four years of study at UMCP. They each have an estimated value of $33,500. They also provide certain other benefits to their recipients, including admission to UMCP's Honors Program, participation in the Scholars Preceptorship Program, and inclusion in the President's Colloquium. 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 SAT score and a 3.0 grade point average. Podberesky met these requirements, having scored 1340 on the SAT 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 black. Twenty-eight Banneker scholarships were ultimately awarded to students entering UMCP in the fall of 1990.

B. Background of the Banneker Scholarship Program

The Banneker program is rooted in a protracted controversy between the Office of Civil Rights ("OCR") of the Department of Health, Education and Welfare and the State of Maryland concerning desegregation of Maryland's system of higher education. The story begins in March 1969, when OCR first informed the State that its system of higher education was in violation of Title VI of the Civil Rights Act of 1964. See Mandel v. HEW, 411 F.Supp. 542, 547 (D.Md.1976), aff'd, 571 F.2d 1273 (4th Cir. 1978), cert. denied, 439 U.S. 862, 99 S.Ct. 184, 58 L.Ed.2d 171 (1978); Adams v. Richardson, 356 F.Supp. 92, 94 (D.D.C.1973), modified, 480 F.2d 1159 (D.C.Cir.1973). Over the next six years, Maryland officials submitted three separate plans in an attempt to comply with Title VI. The first two were rejected in 1970 and 1973, respectively. See Mandel, 411 F.Supp. at 547-48. On December 15, 1975 the Acting Director of OCR decisively rejected the third plan. He wrote to Governor Mandel that "the State of Maryland, its agencies and its state-operated institutions of higher education are not operating in compliance with Title VI of the Civil Rights Act of 1964" and advised the Governor that he was preparing to commence formal enforcement proceedings. See Mandel, 411 F.Supp. at 550.

In response, the State of Maryland obtained an injunction ordering OCR to seek voluntary compliance before initiating enforcement proceedings. See id. In 1980 the State voluntarily submitted a fourth compliance plan to OCR. OCR and the State continued negotiating and in 1985 the State submitted yet a fifth plan (the "1985-89 Plan"). On June 3, 1985 OCR accepted the 1985-89 Plan as "compliance with Title VI for the life of the plan" and entered into a stipulation of dismissal of the Mandel litigation.

The 1985-89 Plan expired in June 1990. Maryland officials are currently preparing for an OCR inspection to determine whether the State is finally in compliance with Title VI. Until this OCR inspection is completed — and until OCR notifies the State that it is finally in compliance with Title VI — the State has stated its intention to continue to abide by the 1985-89 Plan. The State anticipates that the final OCR review will not be completed for two to three years.

The Banneker program was established in 1979 as part of the State's effort to achieve Title VI compliance. Although neither the 1980 plan nor the 1985-89 plan explicitly refer to the program, both plans emphasize the need to increase "other race grants," a generic name for scholarships, such as the Banneker program, aimed at increasing the representation of historically underrepresented racial groups at public higher education institutions in Maryland.

II.

I must resolve several preliminary issues before addressing the merits of Podberesky's claims.

A. Standing

Defendants first contend that Podberesky's claim for injunctive relief is not justiciable under Article III because he lacks standing to assert it. The Supreme Court has articulated three elements of standing: injury, causation, and redressability. "At an irreducible minimum, Art. III requires the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Each of these elements is satisfied in this case.

In order to satisfy the first element, Podberesky must have suffered a "distinct and palpable injury," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), one that is "`real and immediate,' not `conjectural' or `hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983) (citations omitted). Denial of an equal opportunity for consideration for a benefit or privilege can give rise to an injury conferring standing. For example, in Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 280-81 n. 14, 98 S.Ct. 2733, 2742-43 n. 17, 57 L.Ed.2d 750 (1978) (Powell, J.), the plaintiff's injury lay "in the University's decision not to permit him to compete for all 100 places in the Medical School class, simply because of his race.... Hence the constitutional requirements of Art. III were met." See also Sharif v. New York State Educ. Dep't, 709 F.Supp. 345, 356 (S.D.N.Y.1989); C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3531.4, at 430 (1984) ("loss of opportunity may constitute injury, even though it is not certain that any benefit would have been realized if the opportunity had been accorded"). Here, Podberesky unquestionably was denied an equal opportunity to compete for a Banneker scholarship, solely because of his race.

Second, Podberesky's injury must be "fairly traceable to the Government conduct he challenges as unlawful." Allen, 468 U.S. at 737, 104 S.Ct. at 3317. The causation element is also clearly satisfied in this case. Podberesky was denied consideration for a Banneker scholarship because of his race; in this case he challenges the Banneker program's racially exclusive eligibility requirement.

Finally, Podberesky's injury must be "likely to be redressed by a favorable decision." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). In other words, he must "stand to profit in some personal interest" if this court ultimately rules in his favor. Id. at 39, 96 S.Ct. at 1924. In Simon the plaintiffs lacked standing because it was "purely speculative" whether a favorable ruling would lead to any meaningful relief for them. Id. at 42, 96 S.Ct. at 1926. Similarly, in City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 1666, 75 L.Ed.2d 675 (1983), the Court ruled that a person who had allegedly been subjected to an unconstitutional chokehold administered by the Los Angeles Police Department lacked standing to seek injunctive relief prohibiting the use of chokeholds in the future because he was unable to demonstrate that he was under a "real and immediate threat" of again enduring mistreatment at the hands of the police.

Defendants argue that this case is directly analogous to Lyons. They point out that by virtue of a provision which Podberesky does not challenge, the Banneker program is open only to high school seniors. Podberesky has already enrolled at UMCP, and he will never again be in a position to be considered for a Banneker scholarship. Thus, argue the defendants, there is no threat whatsoever that he will be the victim of discrimination in the awarding of future Banneker scholarships.

While defendants' analysis is correct as far as it goes, it does not go far enough. As discussed in Section II B, infra, a denial of equal opportunity can be redressed by closing the opportunity to all persons as well as by extending it to plaintiff. Thus, if Podberesky was unlawfully denied consideration for a Banneker scholarship, he may seek a judicial mandate withdrawing the scholarships from those who have received them even if it would be inappropriate for the court to order that one be granted to him. See Heckler v. Mathews, 465 U.S. 728, 740, 104 S.Ct. 1387, 1395, 79 L.Ed.2d 646 (1984).

B. Scope of Available Relief Under Title VI

Podberesky seeks both prospective and compensatory equitable relief under Title VI, 42 U.S.C. § 2000d.¹ It is clear that under Title VI prospective relief is available to private plaintiffs in appropriate cases. See Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983). Although Guardians is somewhat difficult to decipher, it likewise appears clear that as a general matter compensatory equitable relief may be awarded to private plaintiffs under ...