Maryland's Disregard for Constitutional Obligations and the Duty to Propose a Meaningful Remedy

1. Maryland’s Extraordinary Disregard for Its Constitutional Obligations And Duty to Propose A Meaningful Remedy The Coalition For Equity And Excellence In Maryland Higher Education et al. v. Maryland Higher Education Commission Plaintiffs’ Opening Statement January 9, 2017

2. Defendants Bear the Burden of Proposing an Adequate Remedy The burden is on the defendant “to come forward with a plan that promises realistically to work.” Green v. Cty. Sch. Bd. of New Kent Cty., Va., 391 U.S. 430, 439 (1968). “[I]t would be unreasonable for the court to require plaintiffs to formulate plans for desegregation” because the burden “rests upon the defendants”. Buckner v. Cty. Sch. Bd. of Greene Cty., Va., 332 F.2d 452, 453 (4th Cir. 1964). “[B]ecause the obligation to remedy the segregative effects of vestiges of segregation is an affirmative duty borne by the state, the onus is not on the plaintiffs to propose the remedy options to be considered.” Knight v. State of Ala., 14 F.3d 1534, 1541 (11th Cir. 1994).

3. The Court Has Broad Equitable Authority to Fashion a Remedy Where defendants “fail in their affirmative obligations,” the trial court’s authority may be invoked and “the scope of a district court’s equitable powers to remedy past wrongs is broad.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971). In crafting a remedy, “a court should consider the full range of all possible alternative remedies . . . when determining which would achieve the greatest possible reduction in the identified segregative effects.” Knight, 14 F.3d at 1541.

4. A Violator's Foot-dragging Cannot Be Allowed To Preclude A Remedy Where defendants “continued to drag their feet,” only putting forward “an enervated desegregation plan,” the trial court was forced “to craft an efficacious desegregation plan.” Belk v. Charlotte-Mecklenburg Bd. of Educ., 269 F.3d 305, 314 (4th Cir. 2001).

5. "[O]ne of the most serious injuries recognized in our legal system" “The State suggests, however, that even current students at HBIs have not shown a sufficient injury in fact for standing purposes. This argument is entirely without merit. See, e.g., Allen v. Wright, 468 U.S. 737, 756 (1984) (‘[The] diminished ability to receive an education in a racially integrated school—is, beyond any doubt, not only judicially cognizable but, . . . one of the most serious injuries recognized in our legal system.’).” Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), at 18:

6. Maryland's Self-Described Foot-dragging “For a number of years there continued to be, at best, benign neglect of the State’s obligation to desegregate and, at worst, outright hostility and footdragging.” Defendants’ Statement of the Case (Dkt. No. 178), at 2-3:

7. Foot-dragging Into the 90s “By 1985, Maryland and OCR settled their ongoing litigation and jointly approved a new desegregation plan that stated it ‘fully conform[ed] with Title VI of the Civil Rights Act.’ Following the expiration of the 1985 desegregation plan, Maryland submitted a final report in 1991 on the state’s performance in meeting its goals. The state did not meet its desegregation goals in terms of the percentage of other race enrollment at the HBIs." Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), at 13 (citations omitted):

8. Foot-dragging on New Programs "The state also had set a goal of implementing 25 new programs at the HBIs, but had only implemented 13 new programs.” Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), at 13 (citations omitted):

9. Foot-dragging on Desegregation Plan “The 1999 Larson Task Force determined that MHEC and USM had not completely met their obligations under the 1988 reorganization act to develop a desegregation plan for the HBIs.” Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), at 14 (citations omitted):

10. Foot-Dragging in Implementing the Partnership Agreement • Maryland committed to avoiding future unnecessary program duplication because of its effect on HBIs • The parties agreed on a practical, educationally sound remedy to attract diversity at HBIs • Institutional identities • Based on unique, high demand programs

11. Parties Agreed Commitments Were Practical Testimony of Mr. John Oliver, Maryland’s Signatory To Partnership Agreement Q. In your role as Chairman, what sense did you have that the commitments Maryland was negotiating were practical for the State? A. We felt they were very practical because we really, with the amount of effort that went into the negotiations, the parties that were involved, we really had a clear sense that these commitments, these obligations could be fulfilled, and they were practical ones. Because it was our belief, particularly my belief, that otherwise they wouldn't be in the agreement. Q. Now, Mr. Oliver, as a signatory for the Partnership Agreement, is this what Maryland committed to in Commitment Eight? A. Yes. Jan. 11, 2012 (Oliver) Tr. 36:16-24; 38:5-8

12. Unique, High Demand Programs Was The Agreed Remedy Testimony of Mr. John Oliver, Maryland’s Signatory To Partnership Agreement Q. And did the State understand that this commitment to developing high demand programs was an obligation that existed irrespective of any efforts by the Historically Black Institutions? A. Absolutely. … Q. And then it goes on to say that Maryland will avoid unnecessary program duplication unless there is sound educational justification for the dual operation of broadly similar programs. Did Maryland understand it had committed to avoid unnecessary program duplication unless the sound educational justification existed? A. Correct. . Jan. 11, 2012 (Oliver) Tr. 38:9-13; 38:24-39:5

13. Maryland’s AG Agreed The 2000 Partnership Agreement Identified Policies With Segregative Effects 2005 Maryland Attorney General Opinion: Legal Advice to MHEC “Finally, you asked us to identify other factors that should be evaluated in an effort to determine whether Maryland has dismantled its de jure segregated higher education system. The answer to this question is informed by Maryland’s decades of work with OCR, spanning multiple desegregation plans, to identify policies with segregative effects and to implement appropriate remedies. The consensus reached by Maryland educators and OCR officials undoubtedly identified the universe of areas where remediation might be appropriate.” PTX 698 at MDED-00047539, emphasis added.

14. Maryland Deliberately Violated The Partnership Agreement “In Maryland’s 2000 Partnership Agreement with the Office of Civil Rights, Maryland committed to developing unique, high-demand academic programs at the HBIs and to avoid further unnecessary program duplication. Unfortunately, the State did not follow through on this commitment, and white enrollment at HBIs only continued to decline following the Partnership Agreement, such that HBI racial identifiability has continued to increase.” Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), at 49:

15. Large Disparity in Unique,High Demand Programs Traditionally White Institutions: 122 Programs Historically Black Institutions: 11 Programs

16. The State Did Not Take It's Obligations Seriously “The State offered no evidence that it has made any serious effort to address continuing historic duplication. Second, and even more troublingly, the State has failed to prevent additional unnecessary duplication, to the detriment of the HBIs.” Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), at 50-51:

17. The Court's Guidance On Remedies "In light of the State’s liability on the issue of program duplication, the court strongly suggests that the parties enter mediation to attempt to generate a suitable plan to address this problem. As embodied in the OCR Partnership Agreement, a remedy for unnecessary program duplication likely includes both avoidance of such duplication and “expansion of mission and program uniqueness and institutional identity at the HBIs.” Mem. Op. at 59

18. Court To Consider Competing Proposals • "If mediation is not successful, further proceedings will be scheduled so that the court may evaluate any competing proposals." Mem. Op. at 60. • On October 29, 2015, gave State one last chance to submit a remedial proposal. Dkt. 442. • February 2, 2016 Court rejected State Plan as "not adequate or sufficiently specific.” • State declined to adjust its proposal. Claims that it was "adopted in good faith." Pretrial Order at 22 n.1.

19. The Two Competing Proposals Maryland's Proposal Summer Camp $ 10M for collaborative programs Funds divided between HBIs and TWIs Authored by lawyers Not MHEC Not retained experts Not HBIs No quantitative or qualitative analysis Not grounded in creating institutional identities or niches Leaves in place unnecessary program duplication

20. The Two Competing Proposals Maryland's Proposal Plaintiff's Proposal Summer Camp 2 - 3 niches per school $ 10M for collaborative programs Court can adjust timeline; phase Funds divided between HBIs over longer period of time. and TWIs Court can appoint expert or special master to work with HBIs to assess costs. Authored by lawyers Renowned experts: Not MHEC Dr. Conrad and Dr. Allen Not retained experts Reflects HBIs priorities Not HBIs No quantitative or qualitative Qualitative analysis and quantitative data analysis Not grounded in creating Grounded in Court's guidance and institutional identities or niches Partnership Agreement Leaves in place unnecessary Addresses unnecessary program program duplication duplication

21. Maryland's 7 Point Strategy to Frustrate Any Remedy • Ignored Court's strong suggestion to focus on niches of programs and consideration of targeted transfers 2. Blocked Plaintiffs' access to HBIs 3. Gave HBIs no guidance in drafting their own proposals 4. Retained no experts to develop a remedial plan 5. Retained no experts with expertise in desegregation 6. Objected to court appointing an independent expert 7. Insists that Plaintiffs' proposal satisfy inappropriate statistical analysis that it fails to apply to its own proposal

22. Maryland Continues To Minimize the Seriousness of Its Constitutional Violation The premise of Plaintiffs’ Remedial Proposal, as set forth in their Memorandum of Law, is that a single violation of a State’s duty to dismantle a once legally segregated system of higher education authorizes a sweeping remedy to achieve “a significant increase in other-race enrollment and an overall reduction in the racial identifiability” of the historically black institutions (“HBIs”) (Doc. 406-1, at 18). (Maryland 's Opposition to Plaintiffs’ Motion for Entry of Judgment at 7.)

23. Maryland’s “Single Violation” Was Part and Parcel of Separate But Equal “On the other hand, unnecessary duplication of academic programs at HBIs and non-HBIs ‘was part and parcel of the prior dual system of higher education—the whole notion of ‘separate but equal’ required duplicative programs in two sets of schools—and . . . present unnecessary duplication is a continuation of that practice.’” Oct. 7, 2013 Memorandum Opinion (Dkt. No. 382), (quoting Fordice) at 44:

24. The State's Proposal Reflects Its Rejection of the Court's Liability Ruling Testimony MHEC Chairman Hassan Q. If you wanted to determine today whether there are any unnecessarily duplicative programs among the Maryland State institutions, how would you go about doing it? MR. SMITH: I'm going to object to the extent it assumes that there is currently unnecessary duplication, but go ahead, please. THE WITNESS: I mean, the key is I'm not aware of. Because the only duplication issue was the Towson MBA, which was withdrawn by the Towson State University. That’s the only thing I can think of. Dep. at 75:4-16. ********* Q. So, do you believe that currently there are no unnecessary duplicative programs? • I don't think so. Dep. at 76:3-5.

25. Two Years Later: Maryland Has Not Engaged The HBIs on Creating Niches Q. Have you had any discussions with anyone at MHEC regarding niches, the creation of niches at the HBIs? MS. DUVAL: Objection THE WITNESS: Not in that wording of "the creation of niches." BY MS. WALKER: Q. Have you had any discussions with anyone at MHEC regarding the creation of high-demand programs at the HBIs? MS. DUVAL. Objection. THE WITNESS: Let me restate the role of MHEC. Our responsibility is to review programs as submitted by the institutions. The institutions have the self-determination within their own mission to submit a request for academic program approval. MHEC's role is not to solicit or ask institutions to create programs. That's a distinction. BY MS. WALKER: Q. Have you had any -- are you aware of any efforts by USM to help the HBIs create new high-demand programs? MS. DUVAL: Objection THE WITNESS: No, I'm not aware of any. Fielder Dep. at 91:13-92:15.

26. Testimony of MHEC Chairman Q. Has MHEC had any specific discussions with Morgan or any of the HBIs about funding new programs to attract students to them? A. No. Dep. At 68

27. MHEC Was Not Involved with Drafting State Proposal Testimony of MHEC Secretary - James D. Fielder, Jr. Q. "Have you heard from others at MHEC that they were not -- they did not participate in drafting the State's plan? A. That is my understanding, yes. Tr. at 133. ***** Q. Are you aware of whether the HBIs found the State's remedial proposal acceptable? MS. DUVAL: Objection. THE WITNESS: I have not asked that question. Tr. at 134.

28. MHEC Chairman Knows Little About State's Proposal • What is your understanding of the way that summer academies could attract other race students to the HBIs? A. I don't have any understanding of that, because we don't know the details. Q. And same question, what is your understanding as to how the collaborative programs in the proposals would attract other race students to the HBIs? A. No detailed discussion that will be done, provided to the commissioners. • I'm sorry, you said that will be done? A. No, no, no. Whatever the details of these two, how they would be implemented, I'm saying no details was provided to the commissioners, so we don't know how those would be done. Q. Would those two proposals have to be approved in any way by MHEC? A. I don't know. (Dep. at 85-86)

29. Houston Davis: No Opinion on State's Proposal • Okay. Do you have any knowledge of what the state is recommending, with regard to remedying the constitutional violation found by the judge? A. No, I have not read their proposal, nor any other documents associated with that. Q. Okay. Do you have any opinion as to what will desegregate the historically Black institutions in Maryland? A. I have no opinion on that. That's not the question I was given. Dep. at 185:25-186:5

30. Houston Davis: Only Role is to Block Plaintiff and HBI Proposals Q. And what have Defendants hired you to do in this case? A. To review the proposals, the documents that have been put forth by the Plaintiffs, and then, more recently, documents, proposals, that have been put forward by the four HBCUs in support of their academic programming plans and goals. Q. Okay. And do you have any role in proposing methods of desegregation? A. I do not. Dep. at 43:17-44:2

31. Houston Davis: Not Sure if Liability Established Q. And when you say the question was still held, is it your understanding that there was a finding of a constitutional violation, based on program duplication in this case? MR. SMITH: Objection. You're asking the witness for a legal conclusion and a legal interpretation of Judge Blake's opinion, which is not the reason that he is here today. If you are able to answer the question, go ahead. THE WITNESS: I do not have the legal expertise to be able to answer the question that you give. My primary focus is absolutely to look at program process and approval process, and I have limited my review to those subjects.

32. Houston Davis: Constitutional Violation? BY MS. TORRES: Q. So you don't know if there's a constitutional violation found in Maryland? MR. SMITH: Same objection as before. If you know the answer, go ahead. THE WITNESS: It is my understanding that the question still remains whether or not there's been unnecessary program duplication or not; whether that's been outright declared or not, I could not state. Dep. at 192:7-193:7

33. State Expert Dr Bastedo : Ignored Court's Suggestion about Niches Q. Were you aware that the court had said that in terms of a remedy, creating programmatic niches appears to be a promising starting point? A. I was aware of that, yes. Q. Did you account for that at all in your report? • No. Dep. at 55:7-13 *** Q. It didn't inform your analysis at all, correct? MR. SMITH: Objection. Misstates his testimony. THE WITNESS: It didn't inform my analysis. Dep. at 57:20-25 *** Q. Do you have any background in the area of desegregation at all? A. No. Dep. at 10:3-5

34. Dr. Bastedo Ignored Partnership Agreement Q. And you weren't focused on the fact that Maryland had said in 2000 that remedying program duplication involves expansion of mission, program uniqueness, and institutional identity at the HBIs? MR. SMITH: Objection. The document speaks for itself. Calls for a legal conclusion. Go ahead and answer. BY MR. GREENBAUM: Q. I'm asking whether he considered that at all in terms of his analysis. A. No. Dep. at 54:11-23

35. Dr. Bastedo Had Never Seen State's Proposal Q. All right. I've marked as Exhibit 14 a document entitled "Defendants' Report and Remedial Proposals." A. So this is the remedial proposal on this side of the case? I shouldn't be asking you, I suppose. MR. SMITH: It is. We didn't ask you to provide an opinion about it, but that's what it is. THE WITNESS: Okay. BY MR. GREENBAUM: Q. Have you seen this before, Dr. Bastedo? A. No.

36. Dr. BastedoAgrees State's Proposal Shows No Analysis Q. My question for you is -- you can take time to read it. My question is: Do you see any qualitative or quantitative or any other type of analysis in this document that would support the proposals as being successful in desegregating the HBCUs? A. Oh, wow. *** THE WITNESS: So I don't see any research cited in here. BY MR. GREENBAUM: Q. Not just research cited. Any analysis that would, in your mind, tend to show that the proposals would be successful in desegregating HBIs. A. I don't see any analysis cited here. Dep. at 254:23-256:4

37. Dr. Lichthman: No Extended Analysis in State's Proposal Q. Dr. Lichtman, you've had a chance now to look at the State's remedial proposal, and, based on what's in this document, can you tell us whether the State has offered a scientifically sound quantitative analysis to justify its proposal? MR. SMITH: I just want to interpose an objection that he was not retained to analyze or comment on this and hasn't been given adequate opportunity to do so, and, second, that to the extent the State wishes to offer that support is not necessarily encompassed within this document, but go ahead and answer the question, if you can. • Yeah, I don't see an extended analysis in this document. Dep. at 56:6-19.

38. Yet Dr. Lichtman Struggles to Defend State Proposal Q. Do you see any analysis in this document? A. Well, there is some, but not Q. Any quantitative analysis as to demonstrating how the proposal would desegregate the TWIs -- I mean HBIs? A. Any ... that's a different question. There are various citations to other reports. I don't know what's in those reports, so I can't say. As a general matter, I don't know what's in these citations, so they may well be quantitative analysis. There's also citations to the court opinion, which may also have quantitative analysis as part of it. Dep. at 56:6-57:7

39. Plaintiffs’ Remedial Plan:Niches for Each HBI Morgan State Business and Management Urban Environment, Health & Sustainability Engineering Coppin State Nursing and Allied Health Criminal Justice & Applied Social & Political Science UMES Engineering and Aviation Sciences Agriculture and Environmental Sciences Pharmacy and Health Professions Bowie State Computer Sciences Professional Studies: Nursing, Social Work, Education

40. Important Context • Extensive existing unnecessary duplication • Programs at TWIs that should have been placed at HBIs • Tried to limit transfers • Avoids mergers

41. Differs From Other Remedies • Louisiana, Mississippi, and Alabama not focused on unnecessary program duplication: no transfers at all • Limited focus on uniqueness in other states • 2000 Partnership Agreement incorporates lessons learned from other remedial plans. • Focus on creating programs within niches to create institutional identity.

42. Plaintiffs' Proposal Is Consistent With The State's Own Reports • Assuring that Maryland would take appropriate steps to ensure that unique, high demand programs are placed at HBIs, • And noting: “The last time Morgan had a number of unique programs at the graduate level was in the last 1960s and 1970s. During that period a minority of enrollments at the graduate level were African Americans. The recent development of a unique graduate programs, primarily at the doctorate level has once again enabled Morgan to attract significant non-black enrollments . . . In architecture and planning, which are masters level programs and are not duplicated in the Baltimore area, enrollments are 60% non-black.” 2006 Committee I Report (PTX 8)

43. Morgan StateBusiness and Management • New Programs • Finance (M) • Supply Chain Management (M) • Marketing (M/D) • Law and Business -- joint w/UB (M/D) B - Bachelors, M - Masters, D - Doctorate • Programs to Transfer • Business Administration (M) – from UB • Accounting (B) – from Towson, UB • Accounting & Business Advisory Services (M) – from UB • Accounting and Financial Management (M) – from UMUC • Finance (B) – from UMUC

44. Morgan StateUrban Environment, Health & Sustainability • New Programs • Food Science & Technology (B/M) • Environmental Studies & Policy (B/M) • Health Care Admin (M) • Health Policy & Mgmt (M/D) • Public Health (B) • Law & Environmental Studies – joint with UB (M/D) • Programs to Transfer • Dr of Management, Community College Policy and Administration – from UMUC (D)

45. Morgan StateEngineering • New Programs • Information Systems (M/D) • Electrical Engineering (D) • Civil Engineering (M/D) • Computer Engineering (M/D) • Law & Engineering – joint w/UB (M/D) • Programs to Transfer • Environmental Engineering (M/D) – from UMBC • Computer Engineering (B/M/D) – from UMBC • Electrical Engineering (M/D) – from UMBC

46. History of Morgan State, UMBC and Engineering – 1983 decisions • 1947 American Council on Education recommends engineering programs be established at Morgan • 1966 UMBC established in lieu of desegregating Morgan • June 1983 – Higher Education Board in favor of establishing engineering programs but not at UMBC because of duplication of resources concerns and desegregation concerns • November 1983 – Board amends earlier decision and Morgan denied full engineering program– split between Morgan and UMBC • Morgan: electrical, civil, and industrial • UMBC: UMCP programs offered at UMBC, including graduate progams in electrical engineering, • UMBC denied approval to offer computer engineering program because it would be duplicative.

47. History of Morgan State, UMBC and Engineering – 1990s • UMCP programs hosted at UMBC transferred to UMBC and UMBC School of Engineering is created • UMBC given approval for programs in computer engineering (a subset of electrical) and environmental engineering (a subset of civil engineering).

48. Inclusion of Engineering Programs in Remedy • Properly included -- discussed at liability trial by Dr. Richardson • Plaintiffs responded to State's untimely motion this morning • Court has broad discretion to fashion remedy without having to find that specific engineering programs is duplicative

49. Coppin StateNursing and Allied Health • New Programs • Biology & Life Science (M) • Gerontology (B/M) • Exercise Science (B) • Social Work (M) • Health Care Admin (B/M) • Health Information Management (M) • Clinic Research (B) • Allied Health & Services (B/M) • Collaborative Program • Nursing (M) – with Coppin, Morgan, UMB, Towson

50. Coppin StateCriminal Justice & Applied Social & Political Sciences • New Programs • Integrated Homeland Security Management (B/M) • Cybersecurity (B/M) • Forensic Studies (B/M) • Programs to Transfer • Integrated Homeland Security Management (M) – from Towson • Criminal Justice (B) – from UMUC • Forensic Studies (B) – from UB • Investigative Forensics (B) – from UMUC • Forensic Science (M) – from Towson • Criminal Justice (B/M) – from UB • Digital Forensics and Cyber Investigation (M) – from UMUC