RICHMOND -- Daniel J. Podberesky was a better student than most of those who won Benjamin Banneker full-tuition scholarships from the University of Maryland at College Park last year, but he wasn't considered for the blacks-only award for one reason: He is white.
Yesterday, while he took a chemistry exam in College Park, a panel of federal judges here probed in vain for evidence that the state's higher education system is still discriminating against blacks and that a blacks-only scholarship program is a fair remedy.
In oral arguments before the 4th U.S. Circuit Court of Appeals, Assistant Attorney General Andrew H. Baida said it is premature to conclude that there are no vestiges of discrimination in a state with a history of segregated schools. Maryland continues to be reviewed by the Office of Civil Rights of the U.S. Department of Education.
Mr. Podberesky's lawyer contended that the days of discrimination are long over and the Banneker program is a "giant step backward" in the national effort to judge people by merit instead of skin color.
The challenge to race-based scholarships, the first of its kind to reach a federal appeals court, comes at a time when the U.S. Department of Education is reviewing whether minority scholarship programs nationwide comply with civil rights laws.
The Banneker program, in which 25 to 30 students a year are awarded scholarships worth more than $33,500 each, was upheld by a federal district court judge in Baltimore in May on the basis of past discrimination by the university. Mr. Podberesky appealed, saying there is no evidence that Maryland continues to discriminate against black students.
"Indeed, all the evidence shows that the University of Maryland is fully integrated," argued Richard A. Samp, chief counsel to the Washington Legal Foundation, a conservative public interest law firm representing the 19-year-old sophomore.
The appeals justices appeared yesterday to take a dim view of the notion advanced by Maryland lawyers that the scholarship program is warranted unless the Office of Civil Rights declares the state in compliance with civil rights laws.
The justices questioned whether a 1969 finding that the state continued to operate a dual and segregated higher education system is good enough to justify race-based remedies today.
And they took issue with the state's contention that the scholarships should be continued because Maryland has not yet met the retention goals it set out for black students in its desegregation plan.
"If the retention rate for black students is the same here as it is in the state of Illinois [which did not have a dual system of higher education], how can you say Maryland discriminates against black students?" asked Justice H. Emory Widener.
"I can't find evidence in this record that there are continuing effects [of past discrimination]. That's what our problem is, do you understand?" Justice Clyde H. Hamilton asked testily. "The strongest evidence for rebuttal is the testimony of your own president that the University of Maryland hasn't discriminated for 15 years," he said.
A third justice, Jane A. Restani, took a different tack to chip away at the state's main contention that the Banneker program was a desegregation tool.
"What was going on in 1988 [to justify racially based remedies]?" she asked, noting that the Banneker program was transformed that year from $1,000 stipends to the current four-year, full-tuition awards.
If the campus had met its black-student admissions goals already -- as the record shows it had -- then its claim that the Banneker program helps recruit black students and meet desegregation goals doesn't hold, she said.
College Park has one of the most culturally diverse student populations in the country. For the past six years, black students have accounted for 15 percent or more of the freshman class.
Mr. Podberesky, who is Hispanic, challenged the Banneker program after he was refused the opportunity to apply. His academic credentials were superior to the minimum required for the Banneker award, but were slightly below the academic standard established for a second College Park scholarship program open to students of all races.
The appeals panel could take up to six months to decide the case.
Mr. Podberesky has declined to be interviewed. His father, Samuel, a 1967 College Park graduate who is an assistant general counsel to the U.S. Department of Transportation, filed the original lawsuit against College Park and its president, William E. Kirwan. The senior Mr. Podberesky attended yesterday's hearing along with his second son, Michael.
"Our lead argument was that the university needed to show evidence of present discrimination," Mr. Podberesky said. "Apparently, the court was having trouble finding that," he said.
The chief lawyer for the state agreed.
"The court seems to be of the view that those findings no longer apply," Mr. Baida said, referring to past rulings that it is enough for a state to point to a finding of past discrimination to justify race-based programs.