Years of litigation and previous rounds of mediation have failed to produce a settlement that satisfies the state or the coalition. The three-judge panel presiding over the case warned against prolonging it further.
“This case can and should be settled,” Appeals Court Judges J. Harvie Wilkinson III, G. Steven Agee and Stephanie Thacker wrote in the order. “Otherwise, the parties will likely condemn themselves to endless years of acrimonious, divisive and expensive litigation that will only work to the detriment of higher education in Maryland.”
Michael D. Jones, lead attorney for the alumni coalition, said his “level of optimism of reaching a resolution has gone up and down, and now it’s on the upswing because we faced a panel of judges . . . who got that this is a serious issue and a meritorious case that needs to be resolved.”
Maryland Attorney General Brian E. Frosh declined to discuss the case.
In a statement, the office of Maryland Gov. Larry Hogan (R) said it was eager to reach a resolution of the case.
“As our administration has throughout this case, we reached out to the plaintiffs and their supporters in an to effort resolve this matter prior to the 4th Circuit ruling,” Hogan spokeswoman Shareese DeLeaver-Churchill said in an emailed statement. “We remain interested in reaching an agreement that will conclude the case in a way that is fair and equitable for Maryland’s college students.”
Maryland brought the case before the Richmond-based appeals court after U.S. District Judge Catherine C. Blake ordered the state in November 2017 to establish a set of unique and high-demand programs at its four historically black institutions. Blake had directed Maryland to appoint an independent monitor for the creation of programs, which would be designed to build on each school’s strengths. The monitor was given the authority to provide annual funding for marketing, student recruitment, financial aid and related initiatives during the next five to 10 years.
After filing the appeal, the state engaged in mediation with the alumni coalition that ended in an impasse. Hogan offered the four historically black colleges and universities up to $100 million to supplement state appropriations over 10 years. In February, Hogan’s chief legal counsel, Robert F. Scholz, pleaded his case for the settlement to the Legislative Black Caucus of Maryland, which rejected the offer as insufficient.
Members of the caucus and advocates of the historically black institutions have argued that $100 million would go only so far to remedy decades of disparities permitted by the state. They say Maryland has impeded enrollment at the four schools by allowing other state colleges to duplicate programs that once attracted a diverse student body to the historically black colleges and universities.
While traditionally white public universities in Maryland have 122 academic programs not duplicated elsewhere within the state system, historically black schools count only 11 such offerings.
Alumni of the historically black institutions say their schools are placed at a disadvantage when their most distinctive offerings are duplicated, especially when the schools they compete with have better finances and newer facilities. The alumni say introducing more academic programs that are in high demand would enhance the competitiveness and sustainability of the four schools.
Initially, the coalition had asked for increased funding and called for merging the University of Baltimore with Morgan State, the state’s largest public historically black school. A more recent proposal to transfer programs from traditionally white state schools raised the ire of the Maryland Higher Education Commission, which establishes statewide policies for Maryland public and private colleges and universities and for-profit career schools. It also sparked objections from some university presidents, who said the plan would ultimately harm students.
Over the years, Maryland leaders pledged $10 million toward more joint degrees between historically black institutions and other public universities to satisfy the courts. They also proposed creating summer programs for high school students at predominantly black schools to bolster the pool of applicants at those institutions. Neither of those offers was deemed adequate by the courts.
In Wednesday’s order, the federal circuit judges said “both parties have well-presented arguments” but that “neither has a realistic appreciation of the strengths and weaknesses of their respective claims and contentions.” Still, judges say a settlement can be reached.