Legislation adds appeal step

University program disputes would go to court after MHEC

April 02, 2010|By Childs Walker | childs.walker@baltsun.com

Under a bill passed Thursday in the Senate, the Maryland Higher Education Commission would no longer be the ultimate arbiter of disputes when one state university tries to prevent another from duplicating its programs.

The bill, which will be heard in the House of Delegates next week, would give universities the right to appeal the commission's decisions in Circuit Court. Currently, the commission delivers the final verdict - a role that has put the appointed panel in the middle of several contentious political battles in recent years.

"There may be a few instances where even after an exhaustive review by MHEC, the governing board of one school feels aggrieved," said Sen. David Harrington, a Prince George's County Democrat who co-sponsored the bill with Sen. Joan Carter Conway, a Baltimore Democrat. "In those cases, they should be able to take the matter to Circuit Court."

Opponents said the bill would undermine MHEC and give power over course approval to judges who have no experience with curriculum issues.

"The bill would essentially allow our universities to sue each other using taxpayer money," said Sen. Bobby Zirkin. "MHEC is doing its job quite well, and this would be a preposterous waste of money."

Zirkin and Sen. James Brochin, both Baltimore County Democrats, said the commission has made good decisions in duplication disputes and argued that judges have no place making education policy.

"Why throw a wrench in the system?" Brochin said. "Who knows better about the system than MHEC? It's bizarre."

Commission decisions invariably leave one party unhappy, but that doesn't mean the process is broken, said James Lyons, secretary of higher education. He noted that commission hearings are, in fact, appeals to decisions he has rendered.

"It has to end somewhere," he said. "I feel MHEC brings an unbiased, third-party perspective, and I don't see how these changes would make any helpful difference. I think we do have the intelligence in the higher education community to wrestle with these things."

The state university system opposes the bill, despite disagreeing with MHEC's handling of a recent standoff between Morgan State University and the University of Maryland University College.

"We do believe that MHEC is the proper adjudicatory agency and we do not support judicial review where universities may end up in court suing each other and/or the state," said P.J. Hogan, vice chancellor for legislative affairs.

Sen. Paul Pinsky, a Prince George's County Democrat, called the appeal provision "a fail-safe" and said he does not expect it to be used often. He praised the bill's requirement that the commission hold court-style hearings before deciding program disputes.

"If you review more thoroughly on the front end, maybe you won't have as many problems on the back end," Pinsky said.

Lyons said the commission calls witnesses and thoroughly researches the arguments from each side.

"I think our staff has done a very good job in each case since I've been here," he said.

Morgan has been a player in the two hottest program duplication disputes of recent years. In 2007, it unsuccessfully attempted to block Towson University from starting an MBA program. That dispute divided state legislators and left Morgan supporters dissatisfied enough to file a lawsuit, still pending in federal court.

Last year, Morgan attempted to stop UMUC from offering an online doctorate in community college administration. The commission ruled that UMUC could not offer the program in Maryland but could offer it to students from the other 49 states. The decision left neither side happy, and university system leaders have said it could set a precedent against the expansion of online education.

Morgan has based its efforts on federal civil rights law, which treats program duplication as a threat to the continued existence of historically black institutions. But critics have said Morgan is obstructing program options that students want and need.

Opponents view Conway's bill as an attempt to revive Morgan's quest to block Towson from starting an MBA program. Zirkin attached an amendment to make sure that, if passed, the appeal provision could only apply to future cases and could not be used retroactively.

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