Settlement conference to be held in bias lawsuit

Group claims state discriminates against black colleges, universities

June 15, 2011|By Tricia Bishop, The Baltimore Sun

After nearly five years of litigation, a coalition representing Maryland's historically black public colleges and universities has agreed to discuss a settlement with the state, which it accused in a 2006 lawsuit of discriminatory practices and multiple civil rights violations.

A private hearing between the two sides will be held Monday in Baltimore's U.S. District Court, less than a month before the case is scheduled for trial.

Among the issues likely to be discussed are whether competing programs at "traditionally white" schools should be dismantled and whether black schools are underfunded because of a racist funding formula.

"The state has been saying to us that they are serious and are prepared to make substantial offers, but what specifically that means, I guess we'll find out" on Monday, said Michael D. Jones, a Washington attorney who represents the Coalition for Equity and Excellence in Maryland Higher Education.

"It certainly has the potential to be a significant development," Jones said, but "it's a little bit early to tell whether it, in fact, is or isn't."

David Paulson, a spokesman for the Maryland attorney general's office, said the state intends to enter the discussions in good faith with "the aim to reach a meaningful resolution."

"Nobody can predict the outcome," Paulson said, adding, "It's much better to mediate a settlement than it is to go to trial."

In its lawsuit, the coalition contends that the Maryland Higher Education Commission is still using discriminatory policies and procedures that have roots in segregation and that it has failed to bring the state's four historically black institutions — Morgan, Coppin and Bowie state universities and the University of Maryland Eastern Shore — into parity with the others.

Members have asked for remedies including increased funding and resources and the dismantling of certain competing programs at other schools.

At a hearing last month, Assistant Attorney General Campbell Killefer said that there was no proof of intentional — if any — discrimination. He blamed existing segregation on the marketing materials of historically black schools and questioned the integrity of a coalition expert.

He asked the court to "dismiss the case entirely."

In an 11-page memorandum filed June 6, however, U.S. District Judge Catherine C. Blake rejected Killefer's claims that intent matters in this instance.

The legal standard only requires the plaintiffs to show that allegedly discriminatory policies are traceable to "practices that were instituted in the past for segregative reasons," she wrote. If they can do that, the burden then shifts to the state to prove that there is no discrimination or that there's a "sound educational justification" for it.

The judge specifically ruled that the coalition "presented genuine disputes of material fact" regarding the formula used to fund operational budgets — and its traceability to the segregation era — and whether it was fair for Towson University and the University of Baltimore to expand MBA programs in 2005 over the objection of Morgan State University.

She also found that there was some question about the control historically black schools have over their own destinies, opening the door for those areas to be discussed at trial.

Blake threw out claims that the state intentionally discriminated against Morgan regarding the MBA programs and that the capital budget process is rooted in segregation policies.

"There is not sufficient evidence to go forward," she wrote.

Jones said his legal team plans to file paperwork this week requesting a clarification on the capital-budget ruling and whether it would prevent them from asking for facility improvements that are tied to educational program upgrades.

A day after Blake released her memorandum, the state asked for a conference "to discuss possible mediation," according to a court document.

It was the first official filing to address a potential settlement, though discussions had been taking place behind the scenes since April, according to the conference request.

"MHEC's counsel believe now more than ever that Plaintiffs will likely achieve 'better,' quicker and certainly more risk-free benefits for the four Maryland [historically black institutions] through a careful and thoughtful mediation than through litigation," the attorney general's office wrote.

The coalition refused to join the defendants in a conference request, however, and filed a caustic reply in court, claiming that the state's "tactics, strategy, and rhetoric in the case to date have not bred goodwill."

"Only recently, when all of its legal maneuvers had failed to end this case, and Maryland is staring trial in the face, has the State suddenly and urgently wanted to discuss a settlement process," Jones' legal team wrote.

They complained that the state was the one to pursue mediation, yet it hasn't promised to do more than "discuss issues plaintiffs have raised." They challenged the defendants to show their hand if "serious about settling this case."

A private conference call was held with Blake on June 9 to discuss mediation. Jones would only divulge that the judge urged the sides to talk before trial. She filed a court order this week referring the case for a settlement conference to be held Monday.

Jones doubts that they'll reach a resolution.

"My sense is that we are likely to continue with the trial," he said.

tricia.bishop@baltsun.com

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