Efforts to settle a long-running lawsuit by alumni from Maryland’s historically black colleges and universities against the state hit a roadblock Thursday when Republican Gov. Lawrence J. Hogan Jr. issued a “final” settlement offer in the case that was immediately dismissed as inadequate by advocates.
In a letter to Del. Darryl Barnes (D-Prince George’s), chairman of the Legislative Black Caucus, from Robert F. Scholz, chief legal counsel in the governor’s office, the Hogan administration offered $200 million to settle the case, which has been winding through the court system for 13 years.
Michael D. Jones, an attorney for the Coalition for Equity and Excellence in Maryland Higher Education, as the HBCU alumni are collectively known in court filings, told legislators earlier this month that the coalition was willing to settle the case for $577 million “spread over a reasonable time period.” After several rounds of stalled settlement efforts in the courts, Jones urged lawmakers to become directly involved with resolving the case.
Barnes said at the time that he thought the proposal was reasonable and that he would seek to bring the executive and legislative branches together to negotiate a settlement. No meeting took place.
Scholz wrote that Jones had politicized the case with his letter and that it contained “numerous misstatements and material distortions.”
Scholz’s letter also states that Maryland has increased HBCU funding over time and that support for HBCUs has outpaced increases for the state’s traditionally white institutions.
“It is critical that any resolution of this case recognize the significant strides made by the State of Maryland to remedy these historic inequities over the administrations of the last four governors working with their partners in the legislature,” Scholz wrote. “Maryland has expanded the roles and missions of Maryland’s HBCUs, increasing both their operating and capital funding, and has taken positive steps to address program duplication – all commenced prior to the filing of the lawsuit in 2006, and continued and enhanced over the last five years by the Hogan Administration.”
A coalition of advocates and alumni from the HBCUs – Morgan State, Coppin State, Bowie State and the University of Maryland Eastern Shore – first filed their case in 2006, alleging that the state had failed to dismantle vestiges of segregated higher education, including by underfunding the four institutions and by allowing traditionally white state universities to continue creating new degree programs that were duplicative of programs at the historically black schools.
Scholz argues in his letter that the coalition’s case is weak, having prevailed on just one of 10 counts in trial court.
In U.S. District Court, Judge Catherine C. Blake concluded that program duplication had perpetuated segregation and that the HBCUs were entitled to a remedy. However, Blake ruled in favor of the state on other claims, which alleged constitutional violations in HBCU funding, graduation rates and retention rates.
Both the state and the coalition appealed, but there has been no ruling in appellate court. The case was argued at the Fourth Circuit in December 2018 and, before deciding the matter, the judges placed the case in mediation a few weeks later. The most recent deadline for a resolution passed in July.
“The Plaintiffs’ lawyer wants to leverage a loss of 90% of his case into a 100% win, demanding damages as if he had actually won the claims he lost,” Scholz wrote Thursday.
The governor’s office and leaders of the Legislative Black Caucus have met multiple times about the case in recent years.
In 2018, Hogan said he was willing to direct as much as $100 million to HBCUs over the next 10 years to settle the lawsuit. However, the offer was considered “woefully inadequate” by members of the Legislative Black Caucus.
Hogan has argued that it is the largest settlement offer proposed by the state in years – “2 1/2 times the amount proposed by the O’Malley Administration to settle the case,” Scholz wrote.
Hogan’s “final offer” of $200 million to resolve the case would be paid over 10 years beginning next fiscal year. “This amount – five times Governor O’Malley’s last offer – would supplement the state’s continued record support for HBCUs,” Scholz wrote.
He urged Barnes to facilitate a settlement to “remove the very substantial litigation risk that the plaintiffs now face.”
Jones responded Thursday evening that the offer shows the state is “still not serious about remedying a constitutional violation that Judge Blake said was as bad as, if not worse than, Mississippi.”
In 2001, Mississippi paid $516.98 million to settle the landmark Ayers vs. Fordice case, which also dealt with disparities in funding for HBCUs compared to other state colleges and universities. Jones has argued that a comparable settlement in Maryland – which has four HBCUs compared to Mississippi’s three – would be upward of $1 billion after adjusting for inflation.
Jones said the coalition believes it can prevail at appellate court if a settlement is not reached.
“In court, the question will be a constitutional one; what is necessary to remedy the violation. It will not a political question of how one governor’s inadequate remedy compared his predecessor’s inadequate offer,” Jones said.
No new court dates have been set since the last mediation deadline.
Editor’s Note: This story was updated to make clear that the Coalition for Equity and Excellence in Maryland Higher Education includes alumni from the state’s historically black colleges and universities. The universities are not a party to the litigation.