Podberesky v. Kirwan

• Decision Date: 31 January 1992
• Docket Number: No. 91-2577,91-2577
• Parties: , 73 Ed. Law Rep. 20 Daniel J. PODBERESKY, Plaintiff-Appellant, v. William E. KIRWAN, President of the University of Maryland at College Park; University of Maryland, at College Park, Defendants-Appellees, State of Ohio; State of Idaho; State of Illinois; State of South Dakota; State of Vermont; State of Virginia; State of West Virginia; N.A.A.C.P. Legal Defense and Education Fund, Inc., Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 52

956 F.2d 52

60 USLW 2506, 73 Ed. Law Rep. 20

Daniel J. PODBERESKY, Plaintiff-Appellant, v. William E. KIRWAN, President of the University of Maryland at College Park; University of Maryland, at College Park, Defendants-Appellees State of Ohio; State of Idaho; State of Illinois; State of South Dakota; State of Vermont; State of Virginia State of West Virginia; N.A.A.C.P. Legal Defense and Education Fund, Inc., Amici Curiae.

No. 91-2577.

United States Court of Appeals Fourth Circuit.

Argued Oct. 31, 1991.

Decided Jan. 31, 1992.

Richard Abbott Samp, Washington Legal Foundation, Washington, D.C., argued (Daniel J. Popeo, Washington Legal Foundation, Washington, D.C., Samuel Podberesky, Randallstown, Md., on the brief), for plaintiff-appellant.

Andrew Howard Baida, Asst. Atty. Gen., Baltimore, Md., argued (J. Joseph Curran, Jr., Atty. Gen. of Md., Richard A. Weitzner, Gerard J. Gaeng, Asst. Attys. Gen., Baltimore, Md., on the brief), for defendants-appellees.

Janell M. Byrd, NAACP Legal Defense and Educational Fund, Inc., Washington, D.C., Julius LeVonne Chambers, Norman J. Chachkin, NAACP Legal Defense and Educational Fund, Inc., New York City, David M. Becker, Michael C. Small, Wilmer, Cutler & Pickering, Washington, D.C., for amicus curiae NAACP Legal Defense Fund.

Lee Fisher, Atty. Gen., of Ohio, Loren Braverman, Deputy Chief Counsel, Theresa Rittinger Schaefer, Asst. Atty. Gen., Columbus, Ohio, for amici curiae State of Ohio, et al.

Before WIDENER and HAMILTON, Circuit Judges, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

OPINION

RESTANI, Judge:

Appellant, Daniel J. Podberesky, appeals from a grant of summary judgment entered on May 15, 1991. 764 F.Supp. 364. Appellees are the president of the University of Maryland at College Park ("UMCP") and UMCP itself, which maintains a race-based scholarship program from which appellant was excluded. Appellant sued for injunctive, declaratory and compensatory relief alleging violations of his rights under the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983 and 2000d et seq.

Background

Appellant is a nineteen year old Hispanic male who was admitted to UMCP in the fall of 1989. As an applicant to UMCP, appellant had an excellent academic record: his Scholastic Aptitude Test score was 1340, out of a possible 1600; his grade point average as calculated by his high school was over 4.0 (as calculated by UMCP, his grade point average was 3.56); and he actively participated in several extracurricular activities.

Along with his application to UMCP, appellant requested that he be considered for an academic scholarship. ¹ UMCP maintains several scholarship programs, one of which is the Benjamin Banneker Scholarship Program ("Banneker Program" or "Banneker Scholarship"), a scholarship program not based on need, under which a minimum of twenty scholarships are awarded each year. UMCP established the Banneker Program in 1978; however, for the first decade of its existence it was limited in scope. Originally, the program provided twoyear scholarships with stipends of $1,000 per year. In approximately 1985, the program was expanded to four-year scholarships. In 1988, the amount of the scholarship was increased to full in-state tuition or out-of-state tuition, plus room, board and mandatory fees, worth in excess of $33,500 over the four years.

At the time appellant applied for the Banneker Scholarship, the minimum requirements for further consideration under the Banneker Program were a 900 Scholastic Achievement Test score and a 3.0 grade point average. Only students of African-American heritage are considered for the Banneker Scholarship. ² Appellant's credentials exceeded those required for further consideration under the Banneker Program; nevertheless, appellant was not considered for this scholarship because he was not of African-American heritage.

The Banneker Program was intended as a partial remedy for past discriminatory action by the State of Maryland. For many years the State of Maryland maintained a system of higher education consisting of separate racially-segregated institutions. ³ After Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), Congress enacted Title VI of the Civil Rights Act of 1964 which forbids federal fund recipients from discriminating in any manner on the basis of race, color, or national origin. 42 U.S.C. § 2000d et seq. (1964). In 1969, the Office for Civil Rights ("OCR") of the Department of Health, Education, and Welfare (now the Department of Education) notified Maryland that its higher education system was still segregated in violation of Title VI. If OCR is unable to obtain compliance with Title VI, it is authorized to initiate formal administrative proceedings against the offending institution. OCR has never initiated formal proceedings against UMCP.

Between 1969 and 1974, Maryland submitted three desegregation plans to OCR. After rejecting the first two, OCR accepted the third plan in 1974. In 1975, the Acting Director of OCR informed the state that it was still in violation of Title VI. In 1978, OCR published new guidelines which set forth criteria required for preparation of acceptable plans for post secondary public education.

In 1980, Maryland adopted the Equal Educational Opportunity Plan for 1980-1985 ("1980-85 Plan"), in which it attempted to meet the requirements of the 1978 guidelines. The 1980-85 Plan contained many goals, one of which was a freshmen class at UMCP that included between ten to twelve percent black students by the year 1985. The Banneker Program was not mentioned in this plan. In May 1985, UMCP specifically mentioned the Banneker Program to OCR when it submitted a "Black Undergraduate Recruitment Program." In June 1985, the State adopted the Plan to Assure Equal Post Secondary Educational Opportunity 1985-89 ("1985-89 Plan"). In this plan, Maryland established a goal of fourteen percent black freshmen at UMCP by the year 1989. No mention was made of the Banneker Program.

In its comments to the 1985-89 Plan, OCR noted that UMCP presented "a detailed discussion of recruitment measures which include listings of recruitment tools, outreach strategies, on-campus programs, summer programs, activities to attract prospective black applicants, recruitment visitors and follow-up procedures." Appendix ("App.") at 310. OCR, however, did not directly acknowledge the Banneker Program. In 1987, UMCP submitted a revised "Black Undergraduate Recruitment Program" in which it listed the Banneker Program as an example of the expanded merit-based financial aid for minority students.

OCR is currently visiting public institutions of post secondary education to determine the progress made under the 1985-89 Plan. Maryland states that it will continue to follow the goals set forth in the 1985-89 Plan until a new one is developed. Accordingly, UMCP plans to continue offering the Banneker scholarships to black freshmen.

Discussion

We review a decision granting summary judgment de novo. See e.g. Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir.1990).

The trial court correctly found that the Banneker Program should be examined in light of the equal protection clause of the Fourteenth Amendment and subjected to a strict scrutiny test. To survive strict scrutiny, as the trial judge noted, an affirmative action plan must serve "a compelling governmental interest" and be "narrowly tailored to the achievement of that goal." App. at 158 (citing Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 1847, 90 L.Ed.2d 260 (Powell, J.) (1986)).

In Wygant, the Supreme Court held that "societal discrimination" was a concept too amorphous in nature to supply the justification for a race-conscious classification. Id. at 276, 106 S.Ct. at 1848 (plurality opinion). Because of the danger of stigmatic harm, classifications based on race, understandably, must be reserved for remedial settings. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 720-21, 102 L.Ed.2d 854 (1989).

At issue in Croson was a plan adopted by the City of Richmond requiring general contractors who were awarded city construction contracts to subcontract at least thirty percent of the total dollar amount of each contract to a "Minority Business Enterprise," a business at least fifty-one percent owned and controlled by individuals of certain specified racial and ethnic minorities. The Court found that the city had failed to demonstrate a compelling governmental interest which justified the plan. Id. at 505, 109 S.Ct. at 727. Finding it significant that the city was unable to point to any identified discrimination in the Richmond construction industry, the Court rejected Richmond's claim that past societal discrimination could justify racial set-asides. Id. at 505-06, 109 S.Ct. at 727. The Court emphasized that Richmond must have a "strong basis in evidence for its conclusion that remedial action ... [is] necessary." Id. at 500, 109 S.Ct. at 724 (quoting Wygant, 476 U.S. at 277, 106 S.Ct. at 1848).

Classification based upon race must be justified by specific judicial, legislative, or administrative findings of past discrimination. Id. 488 U.S. at 497, 109 S.Ct. at 722 (quoting University of California Regents v. Bakke, 438 U.S. 265, 307, 98 S.Ct. 2733, 2757, 57 L.Ed.2d 750 (1978)). It is the state that must show the existence of prior discrimination, and a strong evidentiary basis for concluding that remedial action is necessary. Id. 488 U.S. at 500, 109 S.Ct. at 724.

The district court stated that "[t]he question ... [is] whether UMCP has demonstrated with sufficient particularity that it has a history of racial discrimination which can justify the Banneker Program's existence." App. at 160. In answering this question, the court found OCR's administrative "findings" concerning the noncompliance of Maryland with Title VI demonstrated past...