NAFEO President, Attorney Lezli Baskerville Thanks and Salutes…

The Coalition for Equity and Excellence in Maryland Higher Education

• Dillard University Alumni, Michael D. Jones, Partner of Kirkland & Ellis & The Law Firm of Kirkland & Ellis (pro bono counsel) 
• The Lawyers Committee for Civil Rights Under Law (pro bono counsel) Dr. Earl Richardson, President Emeritus, Morgan State University & The Robert M. Bell Center for Civil Rights & Education at Morgan State University and Others 

 For…their Unprecedented Decade Plus Pro Bono Litigation in The Coalition for Equity and Excellence in Maryland Higher Education vs. Maryland Higher Education Commission, et. al.  Yielding the Landmark Decision in the HBCU Equity Lawsuit and An Unprecedented $577M Settlement.

The road to and through this case has been long and stony. It started in 1978 when NAFEO filed a case with OCR. It traversed through DOE several times, through Maryland administrative and executive bodies, the Maryland State Legislature for 30 years under NAFEO’s leadership before moving to the judicial system 15 years ago. As a Legal Research Assistant for Dr. Herbert O. Reid, Distinguished Professor of Constitutional Law, Ms. Baskerville wrote and filed with the United States Department of Education Office for Civil Rights, the first administrative complaint in the case. As pro bono counsel, she worked for the next 30 years on the case as it made its way through Education investigations, state legislative hearing, state executive level and state commission hearings.

Interest of National Association for Equal Opportunity in Higher Education in The Coalition for Equity and Excellence in Maryland Higher Education, et al., vs. Maryland Higher Education Commission, et al.

The National Association for Equal Opportunity in Higher Education (NAFEO) located at 110 Maryland Avenue, NE, Washington, D.C. 20002, and organized October 7, 1969, is a voluntary, independent, 501 (c)(3) association of presidents and chancellors of 105 public, private, land-grant, 2- and 4-year, undergraduate, graduate and professional Historically Black Colleges and Universities (HBCUs) and more than 80 Predominantly Black Institutions (PBIs). HBCUs, the subject of this case, are mission-based institutions that by congressional legislation are committed to welcoming, enrolling, stimulating, developing and graduating the progeny of the American slave system. They have always offered the same opportunities to a broad and diverse cohort of others, especially the growing populations of the Nation and the states—persons who are low-income, first generation, and students and families of color. NAFEO serves as “the voice for blacks in higher education.” NAFEO members represent more than 700,000 students, 70,000 faculty, and 7 million alumni worldwide. Morgan State University, Bowie State University, Coppin State University, the University of Maryland Eastern Shore, Baltimore City Community College and Prince George’s Community College are NAFEO member HBCU and PBI institutions.

NAFEO was organized to articulate the need for higher education systems not limited as to quantity or quality by race, income, or previous educational limitations nor other determinants not based on ability.

NAFEO is an association of those colleges and universities which are not only committed to the above goal, but are also fully committed in terms of their resources, human and financial, to attaining this goal. The association is committed to promoting the widest possible sensitivity to the complex factors involved in this case. The association has, for almost half a century, been committed to leveraging all possible resources to create excellent, diverse higher education systems across America, and creating, funding, and sustaining, programs for diverse students, especially from those groups buffered by the racism, exploitation, and neglect of the economic, educational and social institutions of America.

NAFEO has worked in eighteen (18) states with its member institutions; with the state higher education executive officers, governors, state legislators, corporate and foundation partners; and with Federal executives, legislators, and appropriators to shape and advance programs to eliminate the vestiges of de jure segregation and to promote equal educational opportunities for all. The Association has filed amicus curiae briefs in the Supreme Court in The Regents of the University of California v. Bakke, Kaiser Aluminum & Chemical Corporation v. Weber, Fullilove v. Klutznick, United States v. Fordice, and joined as amici on Supreme Court briefs in Gratz v. Bollinger, Grutter v. Bollinger, and University of Texas, Austin v. Fisher (Fisher II). We bring to this important case, the unique lens of nearly 50 years as a leading voice in this space. Thus, NAFEO has a unique interest in this litigation.

Founded in the period after the Civil War and after the 13th, 14th and 15th Amendments to the United States Constitution were passed, HBCUs were designed to ensure equality for recently emancipated slaves. The initial HBCUs were mostly founded by abolitionists and historically Black faith denominations. They were mostly private institutions, like Bowie State University, founded in 1865, the first HBCU in the State of Maryland, by an association dedicated to creating educational opportunities to those in the State whom the State failed to educate. They were operated for many years with no or few government dollars. Even after passage of the second Morrill Act in 1890 that established historically Black land-grant institutions to support the actions of Confederate States that resisted and refused to enroll Blacks in the White state land-grant institutions, public and private HBCUs received negligible public dollars.

In the 1970s, on behalf of its member institutions, NAFEO led in challenging the underfunding of public HBCUs as a continuation of segregated higher education systems in ten states in violation of Title VI of the 1964 Civil Rights Act, in the precedent setting case of Adams v. Richardson cum Califano. 430 F. Supp. 118 (D.D.C.1977) ,356 F. Supp. 92 (D.D.C.1973), affirmed as modified, 480 F.2d 1159 (D.C.Cir.1973). In the Adams states, the states declined for years to demonstrate that they had taken adequate steps, not only to desegregate the historically White Colleges and universities, but also, the historically Black colleges and universities. The United States District Court for the District of Columbia suggested an approach for ending dual and unequal higher education systems that indicates it is not enough to desegregate the historically White higher education institutions, but that the historically Black institutions must also be desegregated. The problem of integrating higher education must be dealt with on a state-wide rather than a school-by-school basis”; and that the controversy involves “the complex problem of system-wide racial imbalance” in public higher education. Adams v. Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159, 1164-65 (1973). The Court found ending certain types of discrimination imperative for desegregating higher education institutions in the states that maintained dual higher education systems. “The desegregation of student bodies, of faculties, the enhancement of Black institutions long disadvantaged by discriminatory treatment, and desegregation of the governance of higher education systems,” 430 F. Supp. 118 at 120 (D.D.C. 1977), for example are all essential. “Perhaps the most serious problem in this area is the lack of state-wide planning to provide more and better trained minority group doctors, lawyers, engineers and other professionals.” This is instructive today as to how Maryland might proceed from this point forward.

Despite the challenges of woeful underfunding, from the founding of the early HBCUs to the passage of the 1890 land grant Act to the present, HBCUs have been open to all races, sexes, colors, creeds, and both genders, and they have always collectively offered employment and other incidental privileges to all who have passed through their doors, except where state law prohibited the same. The disproportionately Black student racial composition of HBCUs is not a result of the policies or practices of the HBCUs, but rather, a testament primarily to state and federal governmental practices of racial discrimination that have kept HBCUs under resourced and prevented states from realizing the Supreme Court mandated requirement that when states maintain dual higher education systems, one historically Black and one historically White, they must invest in the historically Black institutions such that they are comparable to and competitive with the historically White Institutions.

It is proof to the dogged determination and innovation, of HBCUs that the disparities in funding notwithstanding, their diversity data bear out their commitment to and practices of including persons without regard to non-bona fide criteria. HBCUs enroll roughly 30% of non-African American students. Their faculty is more than 40% non-African American. Today 5 HBCUs are more than 50% non-African American. At least one is majority Hispanic-serving. One is being shepherded by a White female president. They have been and they continue to be menders and healers for wounded minds and restless souls. They have been and they continue to be incubators and stimulators of students who are the “best and brightest,” and those who are marginalized and who have been hampered by failing systems. They have produced sterling talent which has benefitted the Republic beyond measure of calculation—not only in material contribution, but intellectual, cultural, moral and spiritual offerings. Most are the economic engines of their service areas. Today, their combined short-term economic impact is nearly $15 billion. In many areas, HBCUs have been more profoundly representative of the American ethic than the larger, more affluent American higher education institutions. Indeed, HBCUs were founded and remain to this day the quintessential equal educational opportunity institutions committed to a public offering of educational attainment.

That many HBCUs have thrived and to this day are thriving despite the continued underfunding and other vestiges of de jure segregation, is evidence of the tenacity of those in the HBCU Community. For, despite incremental improvements to eliminate the disparities, these improvements have never been sufficient to overcome more than a century of underinvestment in HBCUs. And, while HBCUs are not monolithic, there are characteristics that are pervasive across the Community. In a world in which student choice reigns supreme, the aesthetics of the campus, the infrastructure, the technology, dormitories, student life buildings, laboratories, centers of excellence, diversity of offerings, quantity and quality of front line student services personnel, and other staff, the student-faculty ratio, student-counselor and student-tutor ratio, extra learning opportunities, including internships and study abroad, and a host of other accouterments of adequate funding, play a large role in determining where students choose to go to college or university and whether they persist.

The institutions whose views are presented in this amicus curiae brief, are of the opinion that a decision in the Maryland case will be instructive nationwide. NAFEO has worked with the State of Maryland for forty-nine years to shape policies, programs and practices, and to prod investments of public financial and other resources in a manner that does not perpetuate dual and unequal higher education or that wittingly or unwittingly perpetuates the vestiges of past discrimination and maintains the status quo ante. For example, we were in Maryland when, at the time of NAFEO’s founding, Maryland was operating a segregated system of higher education. With NAFEO’s prodding and that of others, the State was forced by federal oversight to take action designed to erase vestiges of higher education segregation. We have witnessed the State’s progress in equalizing higher education ebb and flow. With the prodding and vigilance of The Maryland Coalition for Equity and Excellence in Maryland Higher Education, state legislators, state executives, state higher education executive officers, corporations, foundations, and a host of others the State is today at a critical juncture.

We are optimistic that the State wants to and will, indeed, move to finding a fair, equitable and efficient way of removing the vestiges of the discrimination in Maryland higher education and to closing the chapter on the ignominious dual and unequal higher education system in the State.

By moving as Maryland is to establishing an equitable desegregation and funding plan for higher education, and to defining “comparability and competitiveness,” and thereby establishing a common yardstick to inventory higher education institutions and measure their progress, the State will position itself as a trailblazer in the arena of parity measurement in postsecondary education. It will pave the way for the State to establish a best practices measurement model of “comparability” and “competitiveness” not only for the State of Maryland, but also for similarly situated states across the nation. Once perfected and evaluated, Maryland could have a model for attaining excellence and equity in higher education in Twenty First Century America and beyond. The HBCU Community, state higher education executives, state executives and legislators are awaiting the outcome of this case with a sense of renewed hope. The case is especially timely, with the shift in the demographics of the Nation and the shift in the education, workforce, and entrepreneurship landscapes.

It is fitting for Maryland to lead the Nation in what we hope will be the chapter that will enable America to close the book on separate and unequal higher education and provide a clear yardstick for measuring higher education systems not limited as to quantity or quality by race, income, or previous educational limitations, nor other determinants not based on ability. It was, after all, in the State of Maryland, where much of the higher education equalization debate and actions began, in an effort to tear down barriers to equal educational opportunity in public higher education. The case of Pearson v. Murray, 182 A. 590 (1936), started the State of Maryland and placed the Nation on the journey that has led to this point. In that case, Donald Gain Murry was denied admission to the University of Maryland Law School because of his race, and the Maryland Court of Appeals held that Murray should have been admitted to the existing state law school. We hope that the court will bring this chapter in American history to a close before 2019, the year that marks the 400th year of Africans in America.

[1] Members of the NAFEO Board of Directors are as follows: Glenda Baskin Glover, President, Tennessee State University, Retiring; state Attorney Lezli Baskerville, President & CEO, NAFEO, Ex Officio; Board Chair; James A. Anderson, Chancellor, Fayetteville State University; Benjamin F. Chavis, President, National Newspaper Publishers Association, Vice Chair of the Board; George T. French, President, Miles College; Michael T. Nettles, SVP & Chair for Policy Evaluation & Research, ETS; Kent Smith, President, Langston University, Retiring Board Member; Thelma B. Thompson, President, TBT CASPA & Associates, Former President, University of Maryland Eastern Shore; and Harry L. Williams, President, Delaware State University, Retiring Board Member.