Blacks-only scholarship is upheld It is called a remedy for UM segregation

November 19, 1993|By Marcia Myers | Marcia Myers,Staff Writer

In a case that holds national implications for race-based scholarships, a federal judge in Baltimore yesterday ruled that a blacks-only scholarship program at the University of Maryland at College Park is constitutional.

The challenge to the Benjamin Banneker Scholarship Program originated with a suit by a straight-A, part-Hispanic student who claimed the scholarship program was unconstitutional because it gave preferential treatment to blacks at the expense of other students.

U.S. District Judge Frederick J. Motz rejected that argument in 1991.

But a U.S. appeals court last year sent the case back to Judge Motz, saying that the program could continue only if "present effects of past discrimination" exist on the campus and if the Banneker program was aimed at those problems.

In his opinion yesterday, Judge Motz said those effects need not be widespread or pervasive, but at College Park they were sufficient to justify the program.

"A segregated atmosphere continues to permeate UMCP's campus. Students segregate in the dining halls and classrooms, and African-American students feel that they are not welcome at fraternity parties, bars and the student newspaper," he wrote.

William E. Kirwan, president of the university, said the judge's opinion reaffirms a program that he cares about deeply.

"I hope that it will signal other institutions that these kinds of programs can be supported and should be supported," he said.

Richard A. Samp, a lawyer with the conservative Washington Legal Foundation who represented student Daniel J. Podberesky the case, called the ruling "predictable" and said he will appeal in the next week.

He had argued that the racial tensions experienced at the university were no greater than those existing elsewhere in society. Racial discrimination in any form should not be practiced, he said. "Schools should be treated no differently than any other body."

The judge's opinion cited a long tradition of discrimination in Maryland higher education that continues to affect African-American students on the College Park campus. It takes the form of low graduation and retention rates and a perception among black students that the campus climate is hostile, he wrote.

The Banneker program, he said, directly increases the number of black students who are admitted to the university and who are likely to graduate.

In a footnote, the judge urged more latitude for legislators and educators in devising remedies for years of segregated education. Affirmative action in education should not be held to the same standards that are applied in employment disputes, he wrote.

"A fire department's discriminatory hiring practices have little or no effect on the society at large," he wrote.

"But discrimination in the nation's educational institutions has created a ripple effect that necessarily affects every aspect of our economy and society."

Dr. Beverly Cole, director of education and housing for the NAACP, said she was elated by the ruling.

"This program is a tool that should have been encouraged, not stopped and called unconstitutional," she said.

A report issued by the university last spring showed that blacks make up about 11 percent of the school's 23,300 undergraduates.

Only 53 percent graduate within five years, compared with 64 percent of other students, the report said.

The Banneker program accepts 25 to 30 academically talented students each year and pays their room, board and tuition for four years of college.

Mr. Podberesky, now a senior premed student, sued the university in 1990, saying that it had refused to consider his application for the scholarship solely because of his race.

His academic record was reported to be superior to those of three-fourths of the students who had been offered the award that year.

There was no need for the black scholarship program, he argued, because the campus was no longer discriminatory toward blacks.

In his May 1991 ruling, Judge Motz called the Banneker program a legitimate response to the history of discrimination among Maryland universities.

He said that, while Mr. Podberesky was denied an opportunity for the scholarship, he was not denied admission to the campus or victimized for racial reasons.

WHAT JUDGE MOTZ SAID

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Here are excerpts from Judge J. Frederick Motz's decision:

"Undoubtedly, our history contributes mightily to our prejudices, and it is at best naive and at worst disingenuous to suggest that a culture of bigotry inculcated over centuries can be erased by less than 20 years of ameliorative measures. . . .

"This is not to say that public colleges and universities should be given carte blanche to establish unrestricted affirmative-action programs whenever university officials posit that a racial problem has arisen. Although slavery and Jim Crow laws make our heritage hypocritical, we are bound together by the ideal of equality -- an ideal which race-conscious remedies tend to contradict. Therefore, any such remedies must be subjected to 'strict scrutiny' by the courts. . . .

"Few issues are more philosophically divisive than the question of affirmative action. It strikes at our very souls as individuals and as a nation. It lays bare the conflict between our ideals and our history. . . . All that we can ask of those entrusted with the responsibility of running our institutions, both public and private, is that they approach the issue intelligently, sensitively and self-critically, without bias, self-interest or cant.

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