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Historic $555M Maryland HBCU Settlement Approved

Law360 spoke with Kirkland partner Mike Jones regarding his efforts on behalf of Maryland's historically Black colleges and universities.

 A federal judge in Baltimore has approved a historic $555 million settlement, hammered out in part by Kirkland & Ellis LLP attorneys working pro bono, that resolves a 15-year-long education equity lawsuit involving Maryland's historically Black colleges and universities.

The final judgment and order issued Tuesday affirmed what both the plaintiffs — mainly consisting of alumni from Maryland's four HBCUs — and Maryland state agency defendants sought in a recent motion for conditional settlement to finally resolve the long-running case: namely, funding to support student financial aid, faculty hiring, new and existing academic programs and additional state capacity to coordinate all of this development.

U.S. District Judge Catherine C. Blake concluded that this agreement not only "is in the public interest," but also avoids "unnecessary program duplication" within any state-level higher education policy that could be "traceable to Maryland's de jure system of racially segregated public higher education."

The decision marked the final chapter in a saga that saw attorneys from both the Lawyers' Committee for Civil Rights Under Law and Kirkland & Ellis LLP put thousands of hours into litigation, mediation, community outreach and legislative advocacy alongside Maryland General Assembly members and HBCU communities. All of these efforts aimed to remedy historic funding deficits between these HBCUs — which were established when many universities refused to admit African Americans — and schools that remain predominantly white even after the U.S. Supreme Court's Brown v. Board of Education decision.

The original 2006 lawsuit argued special program duplications and underfunding disadvantaged HBCUs in a legally and racially discriminatory way. The complaint cited such examples as the Maryland Higher Education Commission, the case's primary defendant, approving a since-abandoned joint MBA program between Towson University and the University of Baltimore that could draw students away from the historically Black and state-funded Morgan State University, which had an existing MBA program.

In March, Gov. Larry Hogan signed into law emergency legislation that would provide the four HBCUs — Morgan State and Coppin State University in Baltimore, Bowie State University in Prince George's County and University of Maryland Eastern Shore in Princess Anne — $577 million in funding over the next decade. A Lawyers' Committee statement noted that the agreement's terms also set aside $22 million in attorney fees, leaving $555 million for the schools.

"But the release of the funds was contingent on the plaintiffs and the state of Maryland settling the case and the court finding that the legislation and the settlement had cured the constitutional violation by June 1, 2021," the statement said.

Parties on both sides welcomed the case's conclusion. Lead plaintiffs' attorney Michael D. Jones, an HBCU alum and Kirkland's first Black partner, noted the case is historically significant for its duration, the size of the pro bono settlement and its origins.

"It's [also] historic in the sense that this is the only case of its kind that's ever been brought by private litigants," he told Law360 on Thursday. "The other cases in Mississippi and Alabama, the Department of Justice took the lead."

Jones also noted that Judge Blake's order put a functional end to an appeal for limited remand to the Fourth Circuit.

"Now that that's done, we just need to give the Fourth Circuit notice that the judgment has been entered and the case is resolved until the parties withdraw their appeals," he added.

President and lead plaintiff David Burton of the Coalition for Equity and Excellence in Maryland Higher Education, the nonprofit organization created to represent Maryland HBCU alumni against the state, said the resolution allowed "a new beginning for Maryland HBCUs."

He added that he believes this case could establish a precedent for the rest of the country, where many HBCUs suffer resource deficits that their predominantly white peers do not.

"I feel that we have addressed some of the issues of past disparities and inequities … [but] the state of Maryland has a long way to go before it reaches a state where there is equity and parity between HBCUs and PWIs," the Morgan State alumnus told Law360 on Wednesday.

Fellow plaintiffs' attorney Jon Greenbaum of the Lawyers' Committee, who did not immediately return Law360's requests for comment, said in a statement that the "settlement will help bridge the racial divide in Maryland higher education and bring these valuable HBCUs the aid they deserve – on both the financial and programmatic fronts."

Maryland's higher education secretary, James D. Fielder, told Law360 via email that additional staffing in his commission's office "will help to provide insight and direction on programs and policies at our HBCUs, and will continue to support our goal of increasing student access and success."

Representatives of some of the HBCUs added that the institutions now look toward ensuring the settlement disbursement best addresses programmatic and other educational deficits. A University of Maryland Eastern Shore spokesperson said via email that its senior leadership will work on a fund allocation outline over the summer.

Going forward, Jones said Maryland's Attorney General Brian E. Frosh is now required to give the state's legislative services department a notice on the order and settlement agreement by June 11. Neither Frosh's office nor the majority of state defendants immediately answered Law360's comment requests.

Jones also mentioned that Kirkland plans to help the schools and their alumni navigate the program developments and benefits that the new funding enables. Beyond that, he hopes to "take an inventory" of the requests he has received from others interested in pursuing similar educational inequity matters in their own states.

Jones and Burton both acknowledged that what the universities and state do next could set precedents for these schools' future.

"The most important part of this case is not yesterday, but tomorrow," Burton said.

The plaintiffs are represented by Michael D. Jones, Karen N. Walker and Christopher J. Maner of Kirkland & Ellis LLP, as well as Jon M. Greenbaum and Genevieve Bonadies Torres of the Lawyers' Committee for Civil Rights Under Law.

The Maryland agency defendants are represented by Brian E. Frosh, Jennifer A. DeRose and Steven M. Sullivan of the state's Office of the Attorney General.

The case is the Coalition for Equity and Excellence in Maryland Higher Education Inc. et al. v. Maryland Higher Education Commission et al., case number 1:06-cv-02773-CCB, in the U.S. District Court for the District of Maryland.

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