Appendix — Kirwan v. Podberesky

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6 Supreme Court, v.5. }

FILED i

941620 mar 29 98

Nos. 94-__, QEEICE BE THE CLERK j

In the

Supreme Court of the United States

October corm, 1994

WILLIAM E. KIRWAN, et al.,

Petitioners,

Vv.

DANIEL J. PODBERESKY,

Respondent.

MONICA GREENE, et al., ie

Petitioners,

Vv.

DANIEL J. PODBERESKY,

Respondent.

On Petitions For A Writ Of Certiorari

To The United States Court Of Appeals

For The ree Circuit

APPENDIX

KEVIN T. BAINE J. JOSEPH CURRAN, JR.

STEVEN M. FARINA Attorney General of Maryland

Williams & Connolly

725 Twelfth Street, N.W. EVELYN O. CANNON*

Vaewngog D.C. 20005 ANDREW H. BAIDA

(202) 434-5000 RICHARD A. WEITZNER

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-6330

*Counsel of Record

Attorneys for Petitioners Kirwan and

University of Maryland College Park

[Additional counsel listed on inside cover]

WILLIAM J. MURPHY ELAINE R. JONES

JOHN J. CONNOLLY Director-Counsel

100 biz & Shaffer

ht Street, Suite 750 THEODORE M. SHAW

Baltimore. MD 21202 NORMAN J. CHACHKIN

(410) 752-1564 NAACP Legal Defense

+. warts Fund,

SALLY P. PAXTON

JACQUELINE R. DEPEW 99 Hudson Street. 16th fl.

Fulbright & Jaworski, L.L.P. New York, NY 10013

801 Pennsylvania Avenue, N.W. (212) 219-1900

Washington D.C. 20004

(202) 662-0200 JANELL M. ByRD*

NAACP Legal Defense

& Educational Fund,

Inc

1275 K Street, N.W.,

Suite 301

Washington, D.C. 20005

(202) 682- 1300

*Counsel of Record

Attorneys for Petitioners Greene, et al.

TABLE OF CONTENTS

Page

Podberesky v. Kirwan, 38 F.3d 147

SN I ings dy ns on la

Podberesky v. Kirwan, 46 F.3d 5

ee kay a er eee a g's 30a

Podberesky v. Kirwan, 838 F.Supp. 1075

Se MDs ek be as eb oe 34a

Podberesky v. Kirwan, 956 F.2d 52

DY ND ke hg os aba Von sb 0 ow 96a

Podberesky v. Kirwan, 764 F.Supp. 364

Se Se ae ok eG ee eS oe 109a

April 26, 1993 Decision and Report of

The University of Maryland at College

Park Regarding The Benjamin Banneker

eg 139a

U.S. Constitution, Amendment XIV, §1...... 221a

Se ee oO ei oe wks eee eee

SUR CU cs ee 221a

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DANIEL J. PODBERESKY,

Plaintiff-Appellant,

Vv.

WILLIAM E. KIRWAN, President of

the University of Maryland at

College Park; UNIVERSITY OF

MARYLAND AT COLLEGE PARK

(UMCP); MONICA GREEN; MAUDLYN

GEORGE, on her own behalf and on

behalf of her daughter Allison

George; EILEEN HEATH; RICHARD A.

DALGETTY; GERARD W. HENRY;

MAISHA HERREN; ALETHA S. MCRAE.

on her own behalf and on behalf of

her daughter Daletha McRae;

CHARLES L. SMITH, III, on his own

behalf and on behalf of his son

Charles Smith, IV,

Defendants-Appellees.

EQUAL OPPORTUNITY FOUNDATION;

AMERICAN COUNCIL ON EDUCATION;

MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND;

WILLIAM JULIUS WILSON, Doctor;

ASSOCIATION FOR THE STUDY OF

AFRO-AMERICAN LIFE AND HISTORY;

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW; UNITED

STATES OF AMERICA,

Amici Curiae.

No. 93-2527

DANIEL J. PODBERESKY,

Plaintiff-Appellant,

¥.

WILLIAM E. KIRWAN, President of the

University of Maryland at College

Park; UNIVERSITY OF MARYLAND AT COLLEGE

PARK (UMCP): MONICA GREEN; MAUDLYN

GEORGE, on her own behalf and on

behalf of her daughter Allison

George; EILEEN HEATH; RICHARD A.

DALGETTY; GERARD W. HENRY; MAISHA

HERREN; ALETHA S. MCRAE, on her own

behalf and on behalf of her daughter

Daletha McRae; CHARLES L. SMITH, III No. 93-2585

on his own behalf and on behalf of his son

Charles Smith, IV,

Defendants-Appellees.

EQUAL OPPORTUNITY FOUNDATION:

AMERICAN COUNCIL ON EDUCATION;

MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL F UND;

WILLIAM JULIUS WILSON, Doctor;

ASSOCIATION FOR THE STUDY OF

AFRO-AMERICAN LIFE AND HISTORY;

LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW; UNITED

STATES OF AMERICA,

Amici Curiae.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(CA-90-1685-JFM)

Argued: May 10, 1994

Decided: October 27, 1994

Before WIDENER, WILKINS, and HAMILTON,

Circuit Judges.

Vacated and remanded with instructions by published

opinion. Judge Widener wrote the opinion, in which

Judge Wilkins and Judge Hamilton joined.

COUNSEL

ARGUED: Richard Abbott Samp, WASHINGTON

LEGAL FOUNDATION, Washington, D.C., for

Appellant. Evelyn Omega Cannon, Assistant Attorney

General, Baltimore, Maryland; Janell Maria Byrd,

NAACP LEGAL DEFENSE & EDUCATIONAL FUND,

INC., Washington D.C., for Appellees. ON BRIEF:

Daniel J. Popeo, WASHINGTON LEGAL FOUNDA-

TION, Washington, D.C.; Samuel Podberesky,

Randallstown, Maryland, for Appellant. J. Joseph

Curran, Jr., Attorney General of Maryland, Andrew H.

Baida, Assistant Attorney General, Richard A. Weitzner,

Assistant Attorney General, Baltimore, Maryland; Elaine

R. Jones, Director-Counsel, Theodore M. Shaw, Norman

J. Chachkin, NAACP LEGAL DEFENSE & EDUCA-

TIONAL FUND, INC., New York, New York; William

J. Murphy, John J. Connolly, MURPHY & SCHAFFER,

Baltimore, Maryland; Sally P. Paxton, Jacqueline R.

Depew, FULBRIGHT & JAWORSKI, L.L.P.,

Washington, D.C., for Appellees. Hugh Joseph Beard,

Jr., Washington, D.C.; John Montgomery, Germantown,

Maryland, for Amicus Curiae Equal Opportunity

Foundation. David S. Tatel, Martin Michaelson, Daniel

B. Kohrman, HOGAN & HARTSON, L.L.P.,

Washington, D.C.; Sheldon E. Steinbach, General

Counsel, AMERICAN COUNCIL ON EDUCATION,

Washington, D.C., for Amicus Curiae American Council

on Education. Elizabeth Guillen, Antonia Hernandez,

Theresa Fay-Bustillos, MEXICAN AMERICAN LEGAL

DEFENSE AND EDUCATIONAL FUND, Los Angeles,

California, for Amicus Curiae MALDEF. James E.

Coleman, Jr., John H. Cobb, WILMER, CUTLER &

PICKERING, Washington, D.C., for Amicus Curiae

Wilson. A. J. Cooper, GINSBURG, FELDMAN &

BRESS, Washington, D.C.; Amy B. Ginensky, Vernon

L. Francis, Andrew S. Miller, DECHERT, PRICE &

RHOADS, Philadelphia, Pennsylvania, for Amicus Curiae

Association for the Study of Afro-American Life and

History. Thomas J. Henderson, Wendy Parker,

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

UNDER LAW, Washington, D.C.; George W. Jones,

Jr., Mark E. Haddad, Jeanne B. Szromba, SIDLEY &

AUSTIN, Washington, D.C., for Amicus Curiae

Lawyers’ Committee. James P. Turner. Acting Assistant

Attorney General, David K. Flynn, Leslie A. Simon,

Marie K. McElderry, UNITED STATES DEF ART-

MENT OF JUSTICE. Washington, D.C., for Amicus

Curiae United States.

OPINION

WIDENER, Circuit Judge:

The issue in this case is whether the University of

Maryland at College Park may maintain a Separate merit

scholarship program that it voluntarily established for

which only African-American students are eligible.

Because we find that the district court erred in finding

that the University had sufficient evidence of present

effects of past discrimination to justify the program and

in finding that the program is narrowly tailored to serve

its stated objectives, we reverse the district court’s grant

of summary judgment to the University. We further

reverse the district court’s denial of Podberesky’s motion

for summary judgment, and we remand for entry of

judgment in favor of Podberesky.

The facts and prior proceedings in this case are set

forth at length in our earlier opinion, Podberesky v.

Kirwan, 956 F.2d 52 (4th Cir. 1992) (Podberesky I). In

sum, Daniel Podberesky challenges the University of

Maryland’s Banneker scholarship program, which is a

merit-based program for which only African-American

students are eligible. The University maintains a separate

merit-based scholarship program, the Francis Scott Key

program, which is not restricted to African-American

students. Podberesky is Hispanic; he was therefore

ineligible for consideration under the Banneker Program,

although he met the academic and all other requirements

for consideration. Podberesky was ineligible for con-

sideration under the Key program because his academic

credentials fell just shy of its more rigorous standards.

In our earlier decision, we remanded the case

because the district court had not made a specific finding

on whether there was sufficient present effect of the

University’s past discrimination against African-

Americans so as to justify the maintenance of the race-

based restriction in the Banneker scholarship program.

Podberesky I, 956 F.2d at 57. The district court allowed

additional discovery to take place, after which cross-

motions for summary judgment were filed. Podberesky

v. Kirwan, 838 F. Supp. 1075, 1076-77 (D. Md. 1993).

The University claimed that four present effects of past

discrimination exist at the University: (1) The University

has a poor reputation within the African-American

community; (2) African-Americans are under-represented

in the student population; (3) African-Americans students

who enroll at the University have low retention and

graduation rates; and (4) the atmosphere on campus is

perceived as being hostile to African-American students.

838 F. Supp. at 1082. The district court reasoned that if

a strong evidentiary basis existed to support any of the

four present effects articulated by the University, the

Banneker Program would be justified. The district court

then found that there was a strong evidentiary basis to

support the existence of each of those four present effects.

838 F. Supp. at 1083.

The district court also found that the Banneker

Program was narrowly tailored to remedy those four

present effects of past discrimination which it found at the

University. 838 F. Supp. at 1094. The district court then

granted the University’s summary judgment motion and

denied Podberesky’s summary judgment motion. This

appeal followed.

Because it chose the Banneker Program, which

excludes all races from consideration but one, as a

remedial measure for its past discrimination against

African-Americans, the University stands before us

burdened with a presumption that its choice cannot be

sustained. As we have said before,

“Racial and ethnic distinctions of any

sort are inherently suspect and thus call for

the most exacting judicial examination."

Wygant v. Jackson Board of Education, 476

U.S. 267, 273 (1986) (Plurality opinion)

(quoting Regents of the University o

California v. Bakke, 438 U-S. 265, 291

(1978) (Powell, J.)). The rationale for this

Stringent standard of review is plain. Of all

the criteria by which men and women can

be judged, the most pernicious is that of

race. The injustice of judging human

beings by the color of their skin is so

apparent that racial ciassifications cannot be

rationalized by the causual invocation of

benign remedial aims. City of Richmond v.

J.A. Croson Co., 488 U.S. 469, 500

(1989). While the inequities and indignities

visited by past discrimination are

undeniable, the use of race as a reparational

device risks perpetuating the very race-

consciousness such a remedy purports to

overcome.... It thus remains our

constitutional premise that race is an

impermissible arbiter of human fortunes.

Maryland Troopers Ass’n v. Evans, 993 F.2d 1072, 1076

(4th Cir. 1993) (parallel citations omitted).

Although the district court correctly recited in its

opinion that the standard of review of such an overtly

open racial yardstick was strict scrutiny, and despite the

fact that that standard has been adopted time and again

both by the Supreme Court and by this circuit, e.g., City

of Richmond v. J. A. Croson Co. , 488 U.S. 469, (1989):

Hayes v. North State Law Enforcement Officers Ass’n, 10

F.3d 207, 212, (4th Cir. 1993), its restlessness in

compliance with that standard showed through as it

rejected explicitly cases from four other Courts of

Appeals and a reference pool of those high school

graduates who were in fact eligible for admission to the

University: "There is a danger (created in part by the

images of microscope and magnifying glass which the

term ‘strict scrutiny’ brings to mind) that a judge will

become myopic when confronted with statistics such as

these and assume that a single reference pool much be

Selected. In fact, such a narrowing of perspective is

neither necessary nor proper." 838 F. Supp. at 1089.

When we add (as we demonstrate below) that both the

Supreme court and this court have used a pool of quali-

fied applicants as a reference pool in other than employ-

ment context, it is not out of order to note that this

restlessness carried through its opinion. Indeed, in the

penultimate section thereof, the court justified this

analysis by its statement that "I have reached the

conclusion that in our earlier opinions both I and the

Fourth Circuit may have construed too rigid a framework

of analysis," and this "[b]ecause I have come to believe

that (1) precedents involving employment disputes provide

imperfect analogies for determining the constitutionality

of an affirmative action program in an education context,

and (2) focusing solely upon past discrimination in

education cases blurs vision and obstructs under-

standing...." 838 F. Supp. at 1097. Altogether, these

insights into the way the district court arrived at its

conclusion amount to little more than tacit acknowledge-

ment by that court that the Banneker Program would not

withstand strict scrutiny analysis, which it does not.

We have established a two-step analysis for

determining whether a particular race-conscious remedial

measure can be sustained under the Constitution: (1) the

proponent of the measure must demonstrate a "‘strong

basis in evidence for its conclusion that remedial action

[is] necessary;’" and (2) the remedial measure must be

narrowly tailored to meet the remedial goal.’ Maryland

Troopers, 993 F.2d at 1076 (citing and quoting City of

Richmond v. J.A. Croson Co. , 488 U.S. 469, 500 (1989);

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277

(1986) (plurality opinion)). The purpose of our earlier

remand in this case was to allow the district court to

determine whether the University could prove that there

were present effects of past discrimination which

warranted such race conscious remedial action.

‘The district court sets forth an alternate analysis that it

thinks should be used instead of an analysis grounded in

Croson and Wygant. 838 F. Supp. at 1097-99. We reject the

district court’s contention that its proposed analysis is the

correct one.

ee ae ee een Set Seen eee i

wi Tere tnd vain

Podberesky I, 956 F.2d at 56.

At the outset, we note that the district court held

that any present effect of past discrimination found by the

University would be sufficient under our Maryland

Troopers decision and the Supreme Court’s opinion in

City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989), to justify the program: "UMCP’s finding that the

consequences of its segregative past continues to be felt

ipso facto established the necessity for relief." 838 F.

Supp. at 1094. However, Croson itself makes clear that

the district court’s assumption is incorrect. To have a

present effect of past discrimination sufficient to justify

the program, the party seeking to implement the program

must, at a minimum, prove that the effect it proffers is

caused by the past discrimination and that the effect is of

sufficient magnitude to justify the program. As to the

effect justifying the remedial measure, "‘[a]bsent search-

ing judicial inquiry into the justification for such race-

based measures, there is simply no way of determining

what classifications are "benign" or "remedial" and what

classifications are in fact motivated by illegitimate notions

of racial inferiority or simple racial politics.’”". Maryland

Troopers, 993 F.2d at 1076 (4th Cir. 1993) (auoting

Croson, 488 U.S. at 493 (plurality opinion)). Therefore,

the district court was incorrect in stating that if the

University found strong evidence to support any of its

proffered effects, the program would be justified. The

effects must themselves be examined to see whether they

were caused by the past discrimination and whether they

are of a type that justifies the program. Only then could

we consider affirming the district court’s grant of

summary judgment to the University on this issue.

Turning to the present effects articulated by the

10a

University, we. disagree with the district court that the

first effect, a poor reputation in the African-American

community, and the fourth effect, a climate on campus

that is perceived as being racially hostile, are sufficient,

Standing alone, to justify the single-race Banneker

Program. As the district court’s opinion makes clear. any

poor reputation the University may have in the African-

American community is tied solely to knowledge of the

University’s discrimination before it admitted African-

American students. There is no doubt that many

Maryland residents, as well as some citizens in other

States, know of the University’s past segregation, and that

fact cannot be denied. However, mere knowledge of

historical fact is not the kind of present effect that can

justify a race-exclusive remedy. If it were otherwise, as

long as there are people who have access to history

books, there will be programs such as this one. Our

decisions do not permit such a result. See, e.g.,

Maryland Troopers, 993 F.2d at 1079.

The hostile-climate effect proffered by the

University suffers from another flaw, however. The main

support for the University’s assertion that the campus

climate is hostile to African-American students is

contained in a survey of student attitudes and reported

results of student focus groups.” For an articulated effect

to justify the program, however, there must be a

connection between the past discrimination and the effect.

’The hostile climate is claimed to manifest itself in the |

student newspaper, the fraternity and sorority system, and in |

the fact that students tend to segregate themselves in class-

rooms, social situations, and the dining halls. In addition,

there have been claimed instances of racist and patronizing

comments by faculty member. Some instances of white and

black backlash have occurred when the University has either

implemented or trimmed minority-student programs. See 838

F. Supp. at 1092-93.

Ce ee ee a

ani St STN mC ta ~

lla

United States v. Fordice, 60 U.S.L.W. 4769, 4772 n.4

(U.S. 1992). The district court recognized this and

reasoned that there was a nexus because racial incidents

have occurred with some frequency and regularity, which

the district court called a "stream," 838 F. Supp. at 1092,

since 1970, which is when the district court found that de

facto segregation ended at the University. The district

court found that "[t]he very nature of the college

experience is that younger students learn from older

ones.... Since 1970, both black and while students have

been handing down racial attitudes that perpetuate a

hostile racial climate." 838 F. Supp. at 1093. The

district court appears to have found the connection

between the University’s previous discriminatory acts and

the present attitudes obvious, but we have not so found it.

The frequency and regularity of the incidents, as well as

claimed instances of backlash to remedial measures, do

not necessarily implicate past discrimination on the part

of the University, as opposed to present societal

discrimination, which the district court implicitly held.

Podberesky argues that the claimed hostility did not

have its genesis in the University’s discriminatory acts of

the past. He points to several northern universities that

suffer from comparable racial problems.’ The district

’This table includes both northern and southern schools,

as iS apparent.

Black Enrollment Trends (1984-1990)

at Major State Universities in

States with Sizeable Black Populations*

Undergraduate rollment - % Black

Institution 1984 1986 1988 1990

UMCP 8.1% 8.9% 9.7% 10.7%

12a

court rejected this argument for the reason that it found

that most northern universities had experienced de facto

segregation, and it held that racial hostility on the

northern universities’ campuses was the present effect of

those universities’ past de facto, not de jure,

discrimination. 838 F. Supp. at 1090-91.

The district court’s analysis cannot be sustained on

this point. When we begin by assuming that every

predominately white college or university discriminated in

Univ. of Alabama 9.7% --- 95% 9.6%

Auburn 3.0% 3.6% 3.7% 4.3%

Univ. of Arkansas 5.5% 5.2% 4.9% 6.7%

Univ. of Delaware 3.3% 3.9% 4.4% 4.6%

Univ. of Florida 6.0% 6.3% 6.4% 6.5%

Univ. of Georgia 5.7% 5.3% 5.1% 5.8%

Univ. of Illinois (Urbana) 3.9% 45% 5.7% 6.9%

Louisiana State University 7.0% 7.6% 7.7% 81%

Univ. of Mich. (Ann Arbor) 4.7% 5.2% 5.8% 6.4%

Univ. of Mississippi 6.2% 5.7% — 7.5%

Univ. of Missouri (Col.) 3.8% 3.5% 3.7% 4.0%

Rutgers (New Brunswick, NJ) 8.1% 8.1% 8.7% 8.8%

SUNY (Binghamton) 3.7% 45% 5.2% 5.0%

Univ. of N.C. (Chapel Hill) 9.7% 8.6% 8.8% 9.6%

Ohio State (Main Campus) 4.7% 46% 4.5% 5.4%

Clemson (S.C.) 4.7% 46% 4.5% 7.0%

Univ. of S.C. (Columbia) 15.4% 13.9% 13.5% 13.9%

Univ. of Tenn. (Knoxville) 4.6% 4.4% 4.5% 5.1%

Univ. of Texas (Austin) 3.7% 3.7% 3.9% 3.8%

Virginia Polytechnic Inst. 4.7% 3.7% 3.7% 46%

Univ. of Va. (Main Campus) 8.5% 7.6% 9.1% 10.0%

Source: DOEd Data

* States included are those with Black populations equal to at

least 10% of the overall population, based on 1990 census

data. Universities selected are the largest and/or most

prestigious state research institutions like UMCP. For several

States more than one institution is listed.

Bint Hi Ate? Bie eae

13a

the past, whether or not true, we are no longer talking

about the kind of discrimination for which a race-

conscious remedy may be prescribed. Instead, we are

confronting societal discrimination, which cannot be used

as a basis for supporting a race-conscious remedy.

Podberesky I, 956 F.2d at 55 (citing Wygant v. Jackson

Bd. of Educ., 476 U.S. 267, 276 (1986) (plurality

opinion.)). There is no doubt that racial tensions still

exist in American society, including the campuses of our

institutions of higher learning. However, these tensions

and attitudes are not a sufficient ground for employing a

race-conscious remedy at the University of Maryland. See

City of Richmond v. J.A. Croson Co. , 488 U.S. 469, 498

(1989) (majority opinion).

We next turn to the two effects that rely on

Statistical data: underrepresentation of African-American

students at the University and low retention and

graduation rates for African-American students. The

district court found that there was strong evidence of

African-American underrepresentation in the University’s

entering-student classes. With respect to the low

retention and graduation rates, the district court found that

the statistics showed that African-American students had

higher attrition rates than any other identifiable group on

campus.

The district court erred in its analysis of the

underrepresentation evidence and the attrition evidence for

a fundamental reason: the posture of the case before the

district court was that cross-motions for summary

judgment had been filed. We review grants of summary

judgment de novo. Higgins v. E.I. DuPont de Nemours &

Co. , 863 F.2d 1162, 1167 (4th Cir. 1988).

14a

Rule 56 provides, "The judgment sought shall be

rendered forthwith if the pleadings, depositions, answers

to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is

entitled to a judgment as a matter of law." Fed. R. Civ.

P. 56(c). We have held that the rule’s language is clear

that it is not enough for the district court to determine

that the moving party has the winning legal argument; in

accepting that argument, the district court must also

ensure that there is no genuine issue as to any material

fact before a grant of summary judgment is proper. See,

e.g., Charbonnages de France v. Smith, 597 F.2d 406

(4th Cir. 1979) (reversing grant of summary judgment

because of genuine issues of material fact); Stevens v.

Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.

1950) ("The motion for summary judgment... should be

granted only where it is perfectly clear that no issue of

fact is involved and inquiry into the facts is not desirable

to clarify the application of the law."); see also Anderson

v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). "[T]he

fact that both parties simultaneously are arguing that there

is no genuine issue of fact does not establish that a trial

is unnecessary thereby empowering the court to enter

judgment as it sees fit." 10A Charles A. Wright et al.,

Federal Practice and Procedure § 2720 (2d ed. 1983).

Taking the facts in the light most favorable to

Podberesky, the non-moving party, we find that the

district court erred in granting the University’s motion for

summary judgment. As to the low retention and

graduation rates, there is a dispute in the evidence about

why African-American students leave the University of

Maryland in greater numbers than other students.

Podberesky offered evidence tending to show that the

attrition rate revealed by the statistics was the result of

economic and other factors and not because of past

—s

LA i nahi rete uk

1Sa

discrimination. The district court rejected Podberesky’s

study by reasoning that economic concerns are often more

pressing for African-American students because many of

those students come from less wealthy backgrounds. The

district court then reasoned that the disproportionate

number of less wealthy African-American families is the

result of past discrimination in society. The district court

also found some evidence in some of the University’s

exhibits that showed that the University’s poor reputation

and hostile climate have an effect on attrition rates. 838

F. Supp. at 1091-92.

As to the underrepresentation, our decisions and

those of the Supreme Court have made clear that the

selection of the correct reference pool is critical. The

district court must first determine as a matter of law

whether it is appropriate to apply a pool consisting of the

local population or whether another pool made up of

people with special qualifications is appropriate. In the

employment context, this determination is made by

looking at the job requirements. If the job is an unskilled

one, the general population is more likely the relevant

pool. If, however, the job requires some special skills or

training, the relevant pool is made up of only those

people who meet the criteria. E.g., Johnson v.

Transportation Agency, 480 U.S. 616, 631-32 (1987);

Maryland Troopers Ass’n v. Evans, 993 F.2d 1072, 1076-

77 (4th Cir. 1993). The method of determining the

relevant pool by looking at the qualifications needed to

take advantage of the opportunity from which minorities

historically have been excluded and the prevalence of

those qualifications in the population is not limited to the

employment context. See City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 501-02 (1989) (majority

opinion) (applying analysis to Richmond’s minority set-

aside program).

16a

The district court rejected a pool which consisted

of all graduating high school seniors because that pool

"does not take into account even flexible minimum

admission requirements." 838 F. Supp. at 1089. Thus,

the district court correctly determined the legal issue of

whether the appropriate pool was the general population

or a smaller qualification specific pool. The district court

erred, however, in its attempt to resolve the factual

dispute* about what are the effective minimum admission

criteria.” The district court declined to decide the

requisite qualification for membership in the reference

pool, but mentioned the percentage of students taking the

SAT in Maryland, the minimum course curriculum

“The district court also should have determined as a matter

of fact that part of the population which possessed the

qualifications. In this case, however the number of students

meeting the criteria advocated by Podberesky was not

determined because the University did not submit sufficient

data to allow the corresponding percentage to be determined.

The fact that the numbers are not in the record is not a

sufficient basis, however, for rejecting the pool. The pool

must be determined based on the qualifications, not by

determining which numbers exist in the record and then

adopting the corresponding qualifications, which is one way

of characterizing what occurred in the district court. The

district court could have denied the University’s motion for

summary judgment and given it more time to come up with

the relevant figures.

The above note and associated text assumes the

Statistical validity of any pool. See Part I.C., infra.

>The University has no formal requirements for admission

with respect to SAT scores and grade-point averages (GPA).

Thus, for the years in questions, the district court should have

determined what the effective minimum criteria for admission

were be determining the lowest GPA and SAT scores achieved

by admittees to the University that year.

17a

required, and minimum math and verbal SAT scores. It

later found that the percentage of African-American

incoming freshman at UMCP (13%) was less than any of

them (17.9% for required course curriculum to 22% of

students taking the SAT in Maryland who were African-

American).° 838 F. Supp. at 1088-1089. It rejected

Podberesky’s proposed effective minimum criterion for

admission, which was based on a combination of SAT

scores, high school curriculum requirements, and grade-

point averages, because the use of those numbers "ignores

the variables in the admissions process and the

intergenerational effects of segregated education on the

applicant pool." 838 F. Supp. at 1089.’ We are of

opinion that the goal of the program, remedying any

present effects of past discrimination, cannot be used to

lower the effective minimum criteria needed to determine

the applicant pool.* Additionally, the district court erred

*The district court also rejected several pools advocated by

the University, including a pool of all African-American

students graduating from Maryland high schools. 838 F. Supp.

at 1089.

"Like the University, Podberesky presented several

possible pools to the district court. As to the qualifications

needed to be eligible for admission, Podberesky argued in part

that the appropriate reference pool consisted of those African-

Americans who completed the required high school

curriculum, maintained a grade-point average of 2.0 or above,

attained a verbal SAT score of 270 or better, and attained a

math SAT score of 380 or better. Podberesky contends that

the University’s admissions data reveal that these were the

effective minimum criteria for admission. 838 F. Supp. at

1087.

*In addition, any intergenerational effects of segregated

education are the product of societal discrimination, which

cannot support a program such as this one. Maryland

Troopers, 993 F.2d at 1076 (citing Wygant, 476 U.S. at 274-

18a

in resolving, on a summary judgment motion, the factual

dispute about the effective minimum criteria for

admission.

The factual disputes in this case are not

inconsequential and could have been resolved only at

trial. A district court may not resolve conflicts in the

evidence on summary judgment motions, and the district

court erred in so doing here.

Ill

We next turn to the denial of Podberesky’s motion

for summary judgment. An order denying summary

judgment is ordinarily not appealable. See, e.g.,

President & Directors of Georgetown College v. Madden,

660 F.2d 91, 96-97 (4th Cir. 1981) (per curiam);

Valdosta Livestock Co. v. Williams, 316 F.2d 188 (4th

Cir. 1963) (per curiam). In the circumstances of this

case, however, we may review the district court’s denial

of Podberesky’s motion for summary judgment as well as

its grant of summary judgment to the University. The

district court’s orders on the summary judgment motions

disposed of all claims between the parties, and the orders

are therefore within our appellate jurisdiction under 28

U.S.C. § 1291. See 10 Wright, supra § 2715, at 626.

Even if we assumed that the University had

demonstrated that African-Americans were

underrepresented at the University and that the higher

attrition rate was related to past discrimination,® we

76 (plurality opinion)).

"We do not discuss here the hostile environment and poor

reputation effects because they are not sufficient to justify the

program. See Part II.A, supra.

oe Porgy eee ee

wo Pl ae

eta nt Sree

19a

could not uphold the Banneker Program. It is not

narrowly tailored to remedy the underrepresentation and

attrition problems, and the district court erred in its

analysis of this issue as well.

It is difficult to determine whether the Banneker

scholarship program is narrowly tailored to remedy the

present effects of past discrimination when the proof of

present effects is so weak. See Croson, 488 U.S. at 507

(majority opinion). In determining whether the Banneker

Program is narrowly tailored to accomplish its stated

objective, we may consider possible race-neutral

alternatives and whether the program actually furthers a

different objective from the one it is claimed to

remedy."° See Croson, 488 U.S. at 507 (majority

opinion).

A. Attraction to Only High-Achieving Black Students

The district court found that the Banneker Program

attracted "high-achieving black students" to the

‘Because the Banneker requirement of African descent

does not establish the same kind of racial quota as a 50%

promotion requirement, the test articulated in Justice

Brennan’s plurality opinion and Justice Powell’s concurring

opinion in United States v. Paradise, 480 U.S. 149, 171 &

187 (1987), and adopted by this circuit in Hayes v. North

State Law Enforcement Officers Ass’n, 10 F.3d 207, 216 (4th

Cir. 1993), may need some slight adjustment when applied in

the context of a race-exclusive minority scholarships case.

Although Croson, too, involved an outright racial quota--a

30% minority business enterprise set-aside--it also involved a

claim of present effects of past discrimination. Therefore, we

will consider the factors that the Court used in Croson. We

note, however, that even if we were to apply the five-factor

Hayes test, the program would not withstand scrutiny under

those factors, either.

20a

University, which "directly increases the number of

African-Americans who are admitted and likely to stay

through graduation. Even more importantly, the Program

helps to build a base of strong, supportive alumni, combat

racial stereotypes and provide mentors and role models

for other African-American students. Continuation of the

Program thus serves to enhance [the University’s]

reputation in the African-American community, increase

the number of African-American students who might

apply to the University, improve the retention rate of

those African-American students who are admitted and

help ease racial tensions that exist on campus." 838 F.

Supp. at 1094-95. In sum, the district court found that

the Banneker Program is employed by the University as

an effective recruiting tool that draws high-achieving

African-Americans to the University. The district court

further noted that the University’s "success in curing the

vestiges of its past discrimination depends upon it

attracting high-achieving African-Americans to the

College Park campus." 838 F. Supp. at 1095. As we

demonstrate below, in conducting its analysis, the district

court did not sufficiently connect the problems the

University purports to remedy to the Banneker Program:

low retention and graduation rates and

underrepresentation. If the purpose of the program was

to draw only high-achieving African-American students to

the University, it could not be sustained. High achievers,

whether African-American or not, are not the group

against which the University discriminated in the past.

B. Including Non-Residents of Maryland

The district court also erred in giving no weight to

Podberesky’s argument that the Banneker Program is not

narrowly tailored because the scholarships are open to

PY RRB ale Tg Tas Ua

2la

non-Maryland residents.'' The district court stated that

the goals of the program would be served "whether

Banneker Scholars are Maryland natives or not." 838 F.

Supp. at 1095 n.74. It is at once apparent that the

Banneker Program considers all African-American

Students for merit scholarships at the expense of non-

African-American Maryland students.

The University, throughout this case, has taken the

position that the pool from which the students eligible to

enter UMCP is drawn are from "qualified African-

American high school students in Maryland," A. 3476,

and "the University expects that the racial composition of

its student body will reflect the racial composition of

qualified college-eligible high school graduates." A. 3476.

While all of the prerequisites for membership in the pool

were a matter of dispute between the parties, that the

University measured its desired number of black students

against Maryland high school graduates who are qualified

to attend the University is not a matter of dispute. That

being true, it is obvious that awarding Banneker

Scholarships to non-residents of Maryland is not narrowly

tailored to correcting the condition that the University

argues, that not enough qualified African-American

Maryland residents attend at College Park. Cf. Croson,

488 U.S. at 508.

C. Arbitrary Reference Pool

The district court found the program to be

narrowly tailored to increasing representation because an

"In 1992, for example, 17 of the 31 Banneker

scholarships were awarded to non-residents of Maryland.

Podberesky says without refutation that in 1989 a Banneker

scholarship was offered to a Jamaican. Thus, the University

gives African-American a hemispheric meaning.

22a

increase in the number of high-achieving African-

American students would remedy the underrepresentation

problem. The district court so found because it reasoned

that the Banneker Scholars would serve as mentors and

role models for other African-American students, thereby

attracting more African-American students. The Supreme

Court has expressly rejected the role-model theory as a

basis for implementing a race-conscious remedy, as do

we. Wygant v. Jackson Bd. of Educ. , 476 U.S. 267, 276

(1986) (plurality opinion).

Furthermore, the district court’s analysis of

underrepresentation, although it relied on various

academic criteria to determine eligibility, relied on each

relevant criterion item by item instead of in combination.

It is axiomatic that if all of the relevant criteria (270

verbal SAT score, 380 math SAT score, UMCP general

course-curriculum requirements, and 2.0 GPA) were

applied simultaneously, as indeed UMCP itself claims it

most commonly does in determining admissions qualifi-

cations, the percentage of eligible Maryland residents who

are African-American might well be significantly lower

than the percentage satisfying the least burdensome of

those criteria relied upon.’* In other words, even within

the confines of its own analysis, the district court’s

conclusion is based on flawed reasoning, and results in a

2This is because the least burdensome criterion for

admission to UMCP is a limiting factor: no greater number of

people can be accepted to UMCP than those satisfying this

criterion, whichever one it is, in any given year. In point of

fact, many of those satisfying this least burdensome criterion

will fail to satisfy some or all of the other criteria, and thus

will not be eligible to attend UMCP. Accordingly, the district

court’s failure to determine what percentage of the Maryland

high school graduates were African-American and also

satisfied all of these criteria, may well have inflated its

determinations of the size of the relevant reference pool.

23a

series of inconclusive and possible inflated figures

regarding the makeup of the reference pool.

Moreover, and more important, eligibility is not

the only relevant criterion in determining the reference

pool in this case. We note the critical fact that

application for admission to college is voluntary rather

than obligatory. In addition, the choice of which

institution to attend is voluntary, and is dependent upon

many variables other than race-based considerations.

Further, economic concerns and other factors, offered by

Podberesky below, may induce many otherwise-eligible

African-American high school graduates not to enter

college in numbers which are proportionately higher than

those of their non-African-American peers.

In short, the district court failed to account for

Statistics regarding that percentage of otherwise eligible

African-American high school graduates who either (1)

chose not to go to any college; (2) chose to apply only to

out-of-state colleges; (3) chose to postpone application to

a four-year institution for reasons relating to economics

or otherwise, such as spending a year or so in a

community college to save money; or (4) voluntarily

limited their applications to Maryland’s predominantly

African-American institutions.» What if, for example,

in some year only 2/3 of those academically eligible

African-American Maryland high school graduates applied

to any college, while 90% of eligible non-African-

We can infer that significant numbers of UMCP-eligible

Maryland African-Americans do choose to go to the

predominantly African-American Maryland schools, such as

Coppin State, Bowie State, and UM Eastern Shore, whether

their reasons are economic, academic, geographic, or cultural,

because the percentages of African-Americans in the student

bodies at those schools are so high.

24a

American Maryland high school graduates did? What

then would be the relevance of measuring the percentage

of those eligible against the percentage of African-

Americans in the UMCP student body?

We will not speculate as to what extent these

variables might reduce the size of the reference pool,

since no definitive information regarding these types of

Statistics is in the record.'* We can say with certainty,

however, that the failure to account for these, and

possibly other, nontrivial variables cannot withstand strict

scrutiny. In analyzing underrepresentation, disparity

between the composition of the student body and the

composition of a reference pool is significant in this case

only to the extent that it can be shown to be based on

present effects of past discrimination. In more practical

terms, the reference pool must factor out, to the extent

practicable, all nontrivial, non-race-based disparities in

order to permit an inference that such, if any, racial

considerations contributed to the remaining disparity.

This the district court simply has not done. The result is

no more than a collection of arbitrary figures upon which

it held UMCP may rely in its efforts to recruit African-

Americans using facially racial classifications.

'*Although it is not necessary to this analysis, because the

district court’s conclusion on this point cannot withstand strict

scrutiny for failure altogether to consider these variables, we

are convinced, based on common sense and what evidence

there is in the record that if these variables were accounted for

in determining the relevant reference pool, the percentage of

African-Americans in that pool would be lower than any

figure postulated by the district court, and the disparity

between UMCP’s African-American population and that of the

reference pool would be correspondingly reduced to a point

where there might well be no statistically significant

underrepresentation.

25a

The Supreme Court has stated in Croson, which

involved a 30% racial set-aside quota, that "the 30%

quota cannot be said to be narrowly tailored to any goal,

except perhaps outright racial balancing." Croson, 488

U.S. at 507. Although the percentage of African-

Americans that was expected to be in each entering class

was disputed, see supra Part II.B., it is clear that the

district court has implicitly approved the use by UMCP

of a similar quota, because it "rests on ... unsupported

assumption[s]," Croson, 488 U.S. at 502, as to the

appropriate levels, if any, to remedy the present effects of

past discrimination.

The district court has approved the use of the

Banneker Program to affirmatively admit African-

American students solely on the basis of race until the

composition of African-Americans on the University

campus reflects the percentage of African-American

Maryland high school graduates who potentially might

participate in higher education at UMCP, without an

accurate determination of either the extent to which the

present disparity exists, see supra, or the extent to which

that disparity flows from past discrimination, see supra

part I. The program thus could remain in force

indefinitely based on arbitrary statistics unrelated to

constitutionally permissible purposes. Without specific

determination of what measure should be used, if any, to

remedy the effects of past discrimination that still exist,

““relief’ ... could extend until the percentage of [African-

American students at UMCP] mirrored the percentage of

[African-Americans] in the population as a whole."

Croson, 488 U.S. at 498. We are thus of opinion that, as

analyzed by the district court, the program more

resembles outright racial balancing than a tailored remedy

program. As such, it is not narrowly tailored to remedy

past discrimination. In fact, it is not tailored at all.

26a

D. Race-Neutral Alternatives

The district court also suggested that an increase in

the number of high-achieving African-American students

would remedy the low retention and graduation rates for

African-American students at the University. Podberesky

submitted a 1993 study by two University of Maryland

professors which indicates that after the freshman year, in

which grades are the principal problem, students leave the

University for financial and other reasons.’

Specifically, students who left the University "tended to

be more likely to provide their own expenses, live off

campus with long commutes, have a job with long hours,

spend few free hours on campus, and have few friends on

campus." Roger W. McIntire & Sandra Smith, Work and

Life Styles Among Dropouts and Ongoing College

Students, 4J.A. 1062, 1067 (survey of 455 drop-out and

455 returning University of Maryland students).

"[M]Jales, minority groups and transfer students show

greater attrition because they are more likely to provide

their own expenses and have little time for campus

activities and friends due to off campus living and work."

4J.A. at 1068. That study suggests that the best remedy

is "campus job opportunities and convenient, attractive,

and economically reasonable campus housing ... available

to a greater proportion of students." 4 J.A. at 1070-71.

The district court rejected Podberesky’s argument

because it found that, in addition to economic hardship,

[iJn given cases an absence of

‘Students participating in the survey were asked to check

a list of factors that were factors in their decisions to leave the

University. We note that the students had the opportunity to

choose that they "felt discriminated against due to race,

gender, religion, or sexual preferences." 4 J.A. at 1075.

27a

commitment to the school

because of its poor reputation

in the community from which

a student comes, the lack of

shared experience with family

members to help the student

through the arduous process

of higher education, the

absence of African-American

members of the faculty to

serve aS mentors and the

existence of a hostile racial

atmosphere on campus are :

other significant contributing

factors.

838 F. Supp. at 1091-92.

The causes of the low retention rates submitted

both by Podberesky and the University and found by the

district court have little, if anything, to do with the

banneker program. To the extent that the district court’s

opinion can be read as having found a connection between

the University’s poor reputation and hostile environment

and the Banneker Program, it is on either a role model

theory or a societal discrimination theory, neither of

which can be sustained. In addition, there is no

connection between the Banneker Program and shared

experience with family members, African-American

faculty members, or jobs and housing. Even if there is

some connection between the two, the University has not

made any attempt to show that it has tried, without

success, any race-neutral solutions to the retention

problem. Thus, the University’s choice of a race-

exclusive merit scholarship program as a remedy cannot

be sustained.

28a

Because we find that the University has not shown

that its programs and quota goals are narrowly tailored,

we reverse the district court’s grant of summary judgment

to the University. We also reverse the district court’s

denial of Podberesky’s summary judgment motion.

In our first opinion in this case, we required that

Should no further evidence be available upon remand,

summary judgment for Podberesky should be granted.

Simply put, since the summary judgment motion of

the University has failed, it may be argued that we might

well enter judgment in favor of Podberesky. Because such

failure, however, has consisted at least in part of the

district court’s weighing evidence on a motion for

summary judgment, and we expressed no opinion on the

subject previously, we have not without more directed

entry of judgment in favor of Podberesky. Instead, we

have examined the Banneker Program and have concluded

it is not narrowly tailored so as to justify its principal

feature, which is its mandatory reliance on race as a

qualification for participation therein.

The University has had two opportunities to justify

its position and has failed.

Accordingly, on remand, the district court will

enter its order denying the University’s motion for

summary judgment, granting Podberesky’s motion for

summary judgment, and requiring the University to re-

examine Podberesky’s admission to the Banneker

Program as of the date it was made. On such re-

examination, the University will be enjoined from

enforcing that part of the qualifications for entry into the

Banneker Program which require that the applicant be of

29a

the African-American race. Following such re-

examination, the district court will award appropriate

relief if required.

The judgment of the district court is vacated, and

the case is remanded for action consistent with this

opinion.

VACATED AND REMANDED WITH INSTRUCTIONS .°

‘Podberesky has not asked for relief against the

intervenors who have been awarded Banneker

scholarships prior to this decision therefore, none will be

awarded against them except taxable costs and attorneys

fees. Podberesky, also, has not asked for relief against

any other student who has been awarded a Banneker

scholarship prior to this decision; therefore, this decision

has no effect on such students.

30a

PUBLISHED

FILED: December 30, 1994

UNITED STATES COURTS OF APPEALS

FOR THE FOURTH CIRCUIT

No. 93-2527

DANIEL J. PODBERESKY,

Plaintiff-Appellant,

versus

WILLIAM E. KIRWAN, President of the University

of Maryland at College Park; UNIVERSITY OF

MARYLAND AT COLLEGE PARK (UMCP); MONICA

GREEN; MAUDLYN GEORGE, on her own behalf and

on behalf of her daughter Allison George; EILEEN

HEATH; RICHARD A. DALGETTY; GE iRD W.

HENRY; MAISHA HERREN; ALETHA S. McRAE, on

her own behalf and on behalf of her daughter Daletha

McRae; CHARLES L. SMITH, III, on his own

behalf and on behalf of his son Charles Smith, IV,

Defendants-Appellees.

EQUAL OPPORTUNITY FOUNDATION; AMERICAN

COUNCIL ON EDUCATION; MEXICAN-AMERICAN

LEGAL DEFENSE AND EDUCATION FUND;

WILLIAM JULIUS WILSON,Doctor; ASSOCIATION

FOR THE STUDY OF AFRO-AMERICAN LIFE AND

HISTORY; LAWYERS’ COMMITTEE FOR CIVIL

RIGHTS UNDER LAW; UNITED STATES OF

AMERICA,

Amici Curiae.

3la

No. 93-2585

DANIEL J. PODBERESKY,

Plaintiff-Appellant,

versus

WILLIAM E. KIRWAN, President of the University

of Maryland at College Park; UNIVERSITY OF

MARYLAND AT COLLEGE PARK (UMCP); MONICA

GREEN; MAUDLYN GEORGE, on her own behalf and

on behalf of her daughter Allison George; EILEEN

HEATH; RICHARD A. DALGETTY; GERARD W.

HENRY; MAISHA HERREN; ALETHA S. McRAE, on

her own behalf and on behalf of her daughter Daletha

McRae; CHARLES L. SMITH, III, on his own

behalf and on behalf of his son Charles Smith, IV,

Defendants-Appellees.

EQUAL OPPORTUNITY FOUNDATION; AMERICAN

COUNCIL ON EDUCATION; MEXICAN-AMERICAN

LEGAL DEFENSE AND EDUCATION’ FUND;

WILLIAM JULIUS WILSON, Doctor; ASSOCIATION

FOR THE STUDY OF AFRO-AMERICAN LIFE AND

HISTORY; LAWYERS’ COMMITTEEFOR CIVIL

RIGHTS UNDER LAW; UNITED STATES OF

AMERICA,

Amici Curiae.

ORDER

32a

There having been two petitions for rehearing filed

in this case, one by the defendants, Kirwan, et al., the

other by the defendant-intervenors, Monica Green, et al,

upon a request for a poll of the court on both of the

petitions for rehearing en banc, there voted in favor of

rehearing en banc Judges Ervin, Murnaghan and Michael,

and there voted to deny rehearing en banc Judges Russell,

Widener, Hall, Wilkinson. Wilkins, Niemeyer, Hamilton

and Williams.

It is accordingly ADJUDGED and ORDERED that

the petitions for rehearing en banc shall be, and they

hereby are, denied.

The panel has considered the petitions for

rehearing and is of opinion they are without merit.

It is accordingly ADJUDGED and ORDERED that

the petitions for rehearing shall be, and they hereby are,

denied.

On account of a possible ambiguity, however, in

the footnote on page 23 of the opinion, that footnote shall

be, and it hereby is, re-written to read as follows:

*Podberesky has not asked for relief against

the intervenors who have been awarded

Banneker scholarships prior to this decision,

therefore, none will be awarded against

them except taxable costs and attorneys

fees. Podberesky, also, has not asked for

relief against any other student who has

been awarded a Banneker scholarship prior

to this decision; therefore, this decision has

no effect on such students. We note that

attorneys’ fees are not awarded as a matter

33a

of course against unsuccessfui intervenors,

see Independent Federation of Flight

Attendants v. Zipes, 491 U.S. 754 (1989),

and we express no opinion as to whether or

not the district court should make such an

award on remand.

With the concurrences of Judge Wilkins and Judge

Hamilton.

/s/ H. E. Widener. Jr.

For the Court*

“Judges Luttig and Motz did not participate in this

decision.

34a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

DANIEL J. PODBERESKY

Vv.

Civil No.

JFM-90- 1685

WILLIAM E. KIRWAN,

Presidentof the

University of Maryland

at College Park, and

the University of

Maryland at College Park z

OK Ok mK

+ £ © £© &© & & 8 &

OPINION

The question posed in this case is whether a public

university, racially segregated by law for almost a century

and actively resistant to integration for at least twenty

years thereafter, may - after confronting the injustice of

its past - voluntarily seek to remedy the resulting

problems of its present, by spending one percent of its

financial aid budget to provide scholarships to

approximately thirty high-achieving African-American

students each year.

The case is now before me on remand from the

United States Court of Appeals for the Fourth Circuit. |

previously upheld the Benjamin Banneker Scholarship

Program, a scholarship program at the University of

Maryland at College Park' open only to African

' I will refer to the University of Maryland at College

Park throughout this opinion as "UMCP" "the University" or

"College Park."

35a

Americans. Podberesky v. Kirwan, 764 F. Supp. 364

(D. Md. 1991) (Podberesky I). In reversing my decision,

the Fourth Circuit ruled that I had failed to make specific

findings of present effects of past discrimination. It thus

remanded the case for a determination on that issue.

Podberesky _v. Kirwan 956 F.2d 52 (4th Cir. 1992)

(Podberesky II). After the remand, UMCP engaged in an

administrative fact-finding process to decide whether to

continue the Banneker Program. In April 1993, the

University issued a Decision and Report in which it

concluded that the Program should be continued.

Thereafter, the parties engaged in additional discovery

and, at the conclusion of the discovery, filed cross-

motions for summary judgment. Those motions were

argued on October 22, 1993 and are now ripe for

decision.’

Banneker scholarships currently provide full

financial support for four years of study at UMCP. The

most recent data available in the record as to the value of

a Banneker scholarship is for the 1990-91 academic year.

That year the scholarships awarded to in-state students

were valued at $7,571 per year and the scholarships

awarded to out-of-state students were valued at $11,627

per year. The aggregate annual cost of the Banneker

* William E. Kirwan and the University of Maryland at

College Park are both named as defendants. I have referred

to them collectively as "UMCP" throughout this Opinion.

Several Banneker scholars and their parents have intervened

as defendants and are referred to in their capacity as such.

The United States has also filed an amicus brief in support of

the Banneker Program.

36a

program during the 1990-91 school year was $594,351.

It accounted for approximately one percent of UMCP’s

total financial aid budget. Def. Ex. 6 at 9.

The scholarships are awarded each year to black

high school seniors on the basis of merit. In the fall of

1990, the minimum eligibility requirements were a 900

S.A.T. score and a 3.0 grade point average. Plaintiff met

these requirements, having scored 1340 on the S.A.T.

exam and having maintained an unweighted grade point

average Of 3.56. He applied for a Banneker scholarship

but was not considered because he is not African-

American. Twenty-eight Banneker scholarships were

ultimately awarded to students entering UMCP in the fall

of 1990. A total of 3145 freshmen were admitted that

year.

The history of African-American higher education

in Maryland before Brown v. Board of Education is

typical of most southern states. Maryland’s policy

towards the education of its black citizens was

characterized by the reluctant establishment of institutions

of higher education for blacks that were segregated,

vastly underfunded and consistently neglected.» As a

result, when the State Commission on the Higher

Education of Negroes investigated the conditions in the

State’s black colleges in 1937, it documented dramatic

funding disparities and drastically inferior facilities and

curricula in every major field, including teacher

education, agricultural and vocational edweation, liberal

* Def. Ex. 70 at 137-54. Even federal land grant funds,

which were specifically designated for Maryland’s black

colleges, were diverted to white schools. Id. at 141 n. 366.

5 nb A ee ca ge aa a

eee ee

EEA RES Mas deta Fath FBP IS he

37a

arts, fine arts, graduate and professional training, and

extension opportunities. In light of this evidence the

Commission concluded that the state "had failed to make

adequate provision for Negroes."*

By the late 1930s, the state was under pressure,

mainly from the National Association For the

Advancement of Colored People, to equalize the quality

of its educational institutions in order to comply with the

constitutional requirements articulated by the Supreme

Court in Plessy v. Ferguson.” In 1945, the Maryland

Commission on Higher Education recommended that

African-Americans be admitted to the state’s all-white

graduate schools and that funding for all-black colleges be

increased to parity with that of the white schools. Harry

"Curley" Byrd, President of the University of Maryland

from 1935 until 1953, agreed that funding should be

equalized® but was vehemently opposed to integrating the

University’s graduate and _ professional schools:

“Admission fof African-Americans] to the Graduate

School would mean admission to College Park, and would

destroy the very segregation [sic] idea for the

* Id. at 146.

> 163 U.S. 537 (1896). For information about the

NAACP’s campaign to desegregate Maryland’s primary,

secondary and postsecondary schools, see Tushnet, The

NAACP’s Legal Strategy Against Segregated Education, 1925-

1950 at 54-68 (1987).

° "If we don’t do something about Princess Anne," Byrd

said in 1937, referring to what at the time was the only state

funded black college in Maryland, "we’re going to have to

accept Negroes at College Park, where our girls are." Def.

Ex. 70 at 147.

38a

undergraduate school."’ In 1949, Byrd recommended

privatizing UMCP rather than allowing black graduate

students to enroll there.” However, against the

background of the two Supreme Court decisions requiring

the admission of black students to segregated graduate

schools in Oklahoma and Texas,’ Byrd’s suggestion was

rejected and UMCP admitted its first black graduate

student in 1951.'° Any further debate over the propriety

of integrating the University of Maryland system was

mooted by Brown v. Board of Education.

Maryland’s reaction to Brown was restrained but

unenthusiastic. Unlike other states where schools had

been segregated by law, there was no policy of massive

resistance and, in June of 1954, the University’s Board of

Regents agreed to admit "all residents of Maryland

without regard to race."’' However, the state did little

to promote integration. The Board of Regents, like the

governing bodies of many other segregated state schools,

pledged to admit black students, but imposed new

admissions standards and required standardized testing

all applicants. Such requirements served to exiude

African-Americans who might have otherwise been

” Id. at 152.

® Sweatt v. Painter, 339 U.S. 629 (1950), and McLaurin

v. Oklahoma State Regents for Higher Education, 339 U.S.

637 (1950).

10 Def. Ex. 70 at 154.

Def. Ex. 70 at 158.

nae

7 ‘ Nini

Ce Be ae es Sat a es

atte ite & 4,

tii Be an. ER

39a

admitted during the first years after Brown.’ Similarly,

in 1960, when the Governor proposed a complex plan to

accommodate the growth of UMCP by converting several

regional state colleges into additional branches of the

flagship campus, no all-black colleges were considered

for conversion, thus preserving the segregated character

of College Park.’* Most importantly, UMCP simply

made no effort to recruit African-American students. As

the Board of Trustees of the Maryland State Colleges

reported in 1969, "it is only recently that formerly White

colleges [have] made more than perfunctory efforts at

other race recruitment.""* The result of this neglect

was not surprising: "For a vast majority of parents and

Students the question of race simply does not arise.

Rather, it is generally taken for granted by both black and

white students and parents that the choice [of which

college a student attends] takes place within the

framework of colleges of one’s own race."

Not only did UMCP’s administration fail to take

Steps to integrate its campus in the decade and a half after

Brown, it also failed to offer a particularly sympathetic

ear to the concerns of the few African-American students

who attended the University in the late fifties and early

sixties. In 1963, a faculty committee refused to allow

2 Id. at 158.

Report of the Governor’s Commission to Study the

Problem of the Expansion of the University of Maryland

(1960).

'* A Study of Racial Integration in the Maryland State

College System at 13 (1969).

5 Id. at 5S.

40a

students to form an on-campus chapter of the Congress

for Racial Equality. The following vear the Unive-sity

discouraged Martin Luther King, Jr. from speaking on

campus, and, that same year, the Dean of Student Life

forbade campus chaplains from participating in civil rights

activities. '°

The environment in which black students found

themselves during the early 1960s was_ notably

inhospitable. The University, despite its worries about

the effect that Dr. King’s presence on campus might

have, permitted George Wallace to speak at the school in

1964. According to University historian George Callcott,

Wallace attracted the largest crowd in the history of the

University. "The emotional intensity" of the cight

thousand students, Callcott wrote, "exceeded that of a

football game."'’ Off-campus housing was completely

segregated and when an integrated dormitory was

established for a summer "citizenship" program in 1966,

the Ku Klux Klan marched in protest.'* Considering

UMCP’s institutional indifference to integration and the

hostility of the campus climate, it 1s not surprising that

black student enrollment stayed below 1% of the

undergraduate population from 1954 until the end of the

1960s.’”

16 Def. Ex. 70 at 160.

‘7 Callcott, A History of the University of Maryland at

394-95 (1966).

Def. Ex. 101, 9 4.

'? Def. Ex. 70 at 161.

ee eee

4la

In 1968, the United States Department of Health,

Education and Welfare’s Office of Civil Rights (OCR)

began pressuring the state of Maryland to integrate its

institutions of higher learning.” |The University

responded by establishing the Committee on Meaningful

Integration.*! The initial recruitment plan proposed by

the University offered enhanced academic programs at

UMCP in order to attract African-American students from

the state’s predominantly black colleges.

Events between 1970, when the plan was proposed,

and 1973, when OCR rejected the plan as "ineffectual",

demonstrated that the University was not committed to the

"meaningful" integration that the name of the Committee

: promised.” The University did not increase its financial

i aid expenditures to meet the needs of black students most

‘ of whom came from low or moderate income families.”

: Increased efforts to integrate UMCP’s dormitories,

i though ultimately successful, were met with resistance

i from the University’s Diiector of Housing, particularly

: over the issue of recruiting minority students to be

: resident assistants.“ The University failed to provide

* Def. Ex. 71.

71 The name of the Committee seems to be a rather

candid admission of the University’s past failings.

> Def. Ex. 79.

> Def. Ex. 70 at 178.

4 The Director of Housing believed that setting aside

dorm rooms for black students violated Title IV, and she

admitted to changing the academic standing requirements for

employment as a resident assistant when African-American

students applied. Def. Ex. 70 at 184-85.

42a

financial support for the building of black fraternity and

sorority houses even though it had spent a million dollars

to build ten white fraternities and sororities on campus

during the late fifties and early sixties.** Similarly, the

facilities used to house black students programs, such as

the black cultural center and the Intensive Educational

Development Program, were substandard with inadequate

heating and broken toilets.” In 1972, Vice Chancellor

Bratton, who had administrative control over the Office

of Minority Student Education (OMSE), spoke of the

difficulty of getting funding for programs aimed at

recruiting and retaining African-Americans:

Several of my colleagues, both within Student

Affairs and the campus central administration,

showed either naivete or resistance to the creation

of a viable minority student affairs operation.

Even now, including salaries, this office [OMSE]

has only a $42,000 budget and this was literally

drawn from the foot-kicking hides of everyone.

My own staff deeply resent d the transference of

lines to create this operation[?’} and my

experience with the buaget committee when I went

to them for all of $7000 for this effort still leaves

me despondent. $42,000 is only .004% of the

5 Id. at 168.

7 Rather than establishing OMSE from whole cloth,

UMCP created it by transferring personnel away from other

programs aimed at recruiting African-Americans. ]d. at 194-

99.

43a

student affairs budget and .0005% of the campus

budget and the reaction was unworthy of

professional educators.”

As if UMCP’s financial neglect of the needs of

African-American undergraduates was not enough of an

obstacle to black recruiting, the University’s disinterest in

attracting black students spilled over into the Admissions

Office. The administration refused to establish a separate

office of minority recruitment and provided only partial

funding for the recently created Equal Opportunity

Recruitment Program wiihin the Admissions Office.

Moreover, the Admissions Office itself was not

particularly sympathetic to the cause of recruiting black

students. As one black administrator wrote to the

Chancellor of the University in 1972:

The admissions counselors who _ have

addressed themselves to minority recruitment find

themselves working in an environment which is

increasingly repressive and hostile. The hostility

has reached such a level that the counselors

without exception request their operation be placed

in a different division of the University.”

Indeed, this hostility towards minority recruitment existed

at the highest levels of the University administration.

When the Chancellor’s Committee on Minority Education

pressured UMCP to step up minority recruitment and

retention efforts and to increase the amount of financial

3 Id. at 193.

9 Id. at 187, quoting Jan. 5, 1972 letter, Meldon Hollis

to Chancellor Bishop.

44a

aid available to minority students, the administration

dismissed the Committee’s report as "abusive, fuzzy, non-

realistic and non-constructive" with recommendations that

"sound like a parody."”

In 1973, OCR rejected the 1970 Plan, concluding

that, after three years, it was nut successfully

desegregating UMCP. OCR pointed out that the colleges

in the Maryland State University system still retained

duplicative programs and that the areas of specialization

at historically black colleges reflected stereotypical

notions of what were considered appropriate careers for

African-Americans.*' The entire Maryland system of

30 Def. Ex. 70 at 204. Ironically, some of the

Committee’s "abusive, fuzzy, non-realistic and non-

constructive" recommendations, such as sveccific numerical

goals for African-American enrollment, were adopted a year

later in the University’s 1973 Desegregation Plan. Id. at 207.

31 For example, under the 1970 Plan, while UMCP

retained its status as the only state funded institution in

Maryland offering doctoral and professional programs, and the

historically white Towson State received programs that

provided "an excellent background for many careers such as

law, public relations, business, communications media, sales

and management", the state’s traditionally black colleges were

given undergraduate programs designed to train their students

to work within a population of criminals and persons with

mental and physical deficiencies. Bowie State College offered

a social work program "with special emphasis on socially and

emotionally disturbed, delinquent, mentally retarded,

physically ill or handicapped children or adults." Coppin State

offered an "Industrial Arts Program" as well as "Correctional!

Education Program to focus on the large percentage of

illiterates sentenced to correctional facilities." Morgan State

offered a "Community Mental Health Program with an

opportunity for lower-echelon workers at State institutions to

45a

higher education could not be expected to desegregate,

OCR wrote, while the traditionally black colleges offered

specialization in areas that were notably less attractive

than the programs at the state’s white universities.” In

some instances, the state seemed to be hindering the

interaction of students of different races. The state, for

example, set up a cooperative engineering program

wherein students at the traditionally black Morgan State

would take two years of courses towards an engineering

degree at New York University despite the fact that the

same program could have been arranged using UMCP’s

college of engineering.»

After the rejection of the 1970 Plan, the state

produced a new plan, proposing to increase efforts at

minority recruitment, eliminate duplicative academic

programs within the state, and set specific minority

recruitment goals for UMCP.™ This revised plan was

accepted in 1974, but a year later OCR threatened to start

proceedings to terminate the state’s federal education

funding because "Maryland has repeatedly failed to act in

a manner which would indicate that it is executing the

Plan promptly and vigorously."* The state successfully

enjoined these proceedings until OCR promulgated

guidelines setting forth specific standards for Title VI

upgrade their training with a focus particularly on preparation

for work in an inner city context." Def-Int. Ex. 7 at 5-6.

32 Def. Ex. 79.

3 Id.

34 Def. Ex. 70 at 208-209.

35 Def-Int. Ex. 12.

46a

compliance.”

Even as the 1973 Plan was being implemented and

as OCR developed criteria for Title VI compliance, the

University took actions that hindered its own efforts at

desegregation. The Office of Minority Student Education

was downgraded and its various components were

transferred to other administrative units of the

University.*’ In 1978 the University’s Board of Regents

approved a "Master Plan" for the University of Maryland

system. Under this plan UMCP was to deemphasize the

remedial aspects of its curriculum, reduce the size of the

incoming freshmen class by emphasizing "quality over

quantity", and concentrate its resources on upper level

education. Despite the 1973 Desegregation Plan’s goals

for increased minority admissions, the Master Plan

assumed that minority enrollment would remain stable.

Nor did the Master Plan make any provisions for

recruiting minority students or consider the adverse

impact on African-American enrollment that UMCP’s

new admissions requirements would have.“ Not

surprisingly, in 1978, after developing criteria for Title

VI compliance, OCR once again concluded that Maryland

was not taking sufficient action to desegregate its

institutions of higher learning.”

In 1980 the State voluntarily submitted a fourth

*? Def. Ex. 70 at 211-14.

Id. at 239-40.

°° Def-Int. Ex. 14.

Ihab Phd sc haat tok Ch an ME wilh Mai ek al ails ate aaa

Te aR ee POO i ae ee

47a

compliance plan to OCR. In its 1980 Plan, UMCP

revised its goals downward for the 1980 to 1985 time

period. The State began setting its numeric goals for

"other races" in terms of percentages of "first-time, full-

time freshmen" rather than as percentages of the total

pool of undergraduates. Thus, when UMCP set a range

of 10% to 12% as its 1985 goal for other-race freshmen,

that number was substantially lower than the 1974 Plan's

13-16% figure for all undergraduates by 1980. The

decision to focus on "first-time, full-time freshmen" was

a curious one, given that the state recognized retention

problems as possibly "the single most important equal

educational opportunity issue facing the public higher

education institutions in the State." OCR staff concluded

that Maryland’s submission did not amount to an honest

attempt to meet Title VI:

[T]he State has adopted enrollment goals which

would cause some schools to be more racially identifiable

in 1985 than they are now; has not moved to establish

formal institutional missions which would distinguish one

school from another on any basis other than the race of

the students for whom the various schools originally were

established; and has provided no specific steps which it

will take to improve, enhance and enrich its TBIs

[Traditionally Black Institutions] and therefore to assure

equal educational opportunities for the students who

attend those schools.*

OCR and the State continued negotiating and in

1985 the State submitted yet a fifth plan (the "1985-89

Plan"). The new Plan included specific reliance on the

Benjamin Banneker Scholarship Program as one of

UMCP’s most important recruitment efforts:

“Def-Int. Ex. 16 at 12.

eee

48a

The Benjamin Banneker Scholarship

Program has been a valuable asset in the Campus’s

efforts to recruit academically talented Black

students. This program[,] which began in 1978,

originally provided two-year scholarships with

stipends of $1,000 per year. This scholarship has

been expanded for a duration of four years for

each recipient. For 1985-1989, these scholarships

will be continued with approximately 20 new

winners named each year.

On June 3, 1985 OCR accepted the 1985-89 Plan as

"compliance with Title VI for the life of the plan."*

The 1985-89 Plan expired in June 1990. Maryland

officials have issued their report on the 1985 Plan and are

waiting for an OCR inspection to determine whether the

State is finally in compliance with Title VI. Until this

OCR inspection is completed* --and until OCR notifies

the State that it is finally in compliance with Title VI--the

41 In 1978, when the University first implemented the

Banneker Program, it consisted of two year scholarships with

stipends of $1000 per year. These scholarships were available

to all "minority students." Def-Int. Ex. 20. The University

found that, funded at this level, the scholarship was not

accomplishing its goal of attracting high-achieving African-

American students to UMCP. Accordingly, in 1988, UMCP

increased the value of the scholarship and limited it to

African-Americans. Pl. Ex. 25.

* There is no evidence in the record indicating whether

OCR has completed its evaluation of the 1985 Plan.

However, the United States’ amicus brief argues that

Maryland still operates a dual system of higher education even

if it has made progress towards eliminating the vestiges of its

past discrimination.

49a

State has stated its intention to continue to abide by the

1985-89 Plan.

Between 1954 and 1978, when the Banneker

Program was instituted, the number of African-American

undergraduates at UMCP grew from none to nearly 2000,

making up 7.2% of the undergraduate population by

1978. In many ways, this growth took place despite

the actions of the University. Whether manifested by the

overtly racist comments of "Curley" Byrd, the absolute

neglect of black recruiting during the sixties, the

underfunding of African-American facilities, the

institutional hostiliiy towards the administrative units at

UMCP responsible for desegregation, or the constant

squabbling with the OCR, the University demonstrated at

worst contempt for and at best grudging acceptance of its

constitutional obligation to desegregate. It was only in

the late 1970s, with the advent of the Banneker Program,

that UMCP finally began to take meaningful steps

towards integrating its campus. Indeed, it is only since

the late 1980s that the University has made any genuine

progress towards eliminating its single race status.”

Il.

Since William Kirwan became president of UMCP

fifteen years ago, the University has earnestly taken steps

*% Def. Mem. at 11.

* It took the University from 1975 to 1983 to increase its

black enrollment from 6.8% to 8.1%. Later in the decade,

the same 1.3% increase took only two years -- between 1988

and 1990 the percentage of black undergraduates increased

from 9.9 percent to 11.2%. Def. Mem. at 11.

50a

to remedy its history of segregation. Its efforts have born

fruit. African-American matriculation rates have slowly

edged up so that blacks made up approximately 15% of

the freshman class entering UMCP in the fall of 1993.*°

Additionally, in 1990, UMCP ranked fourth among

predominantly white universities in terms of the number

of African-American students receiving degrees.”

Despite these accomplishments, UMCP’s April

1993 Decision and Report (the "D&R") concluded that

the Banneker Program should be continued. The D&R

first identified four effects of the University’s past

discrimination which persist into the present: (1) a poor

reputation of the university in the African-American

community, particularly among parents and high school

counselors who influence students’ college choices; (2)

underrepresentation of African-Americans in the student

population; (3) low retention and graduation rates of

African-Americans; and (4) perceptions of a campus

climate that is hostile to African-Americans. The D&R

next found that the Banneker Program has been successful

in helping to overcome these vestiges of discrimination

and that alternative remedies, specifically race-neutral

merit scholarships or expanded need-based financial aid,

** UMCP Office of Institutional Studies, Student

Enrollment Rates, October 5, 1993. In fact, the percentage of

black instate first-time, full-time freshmen has fluctuated over

the last six years. The percentages are as follows: 1992

(10.38%), 1991 (13.7%), 1990 (14.2%), *989 (15.2%), 1988

(13.3%). Def-Int. Ex. 37.

* It is worth noting, however, that UMCP’s African-

American graduation rate, when measured as a percentage of

the entire graduating class, ranked 29th among traditionally

white colleges. In 1990, 6.3% of UMCP’s graduates were

black. Pl. Ex. 62.

wae iat sheets

ec a INS lich Wide PAN cn AGRE brows

Sla

would not be similarly efficacious. Finally, the D&R

required that the Banneker Program be reviewed and

evaluated at least once every three years to determine

whether its goals have been achieved and whether it

should be continued.*’

IV.

The Fourth Circuit affirmed my prior ruling that

the Banneker Program must be subjected to a strict

scrutiny test under the equal protection clause of the

Fourteenth Amendment. Accordingly, the Program must

serve "a compelling governmental interest" and must be

"narrowly tailored to the achievement of that goal."

Podberesky II, 956 F.2d at 55. The Fourth Circuit

explained that in order to meet the "compelling

governmental interest" element of the test, defendants

must show that there is a "strong evidentiary basis for

concluding that remedial action is necessary." The Court

did not define precisely what a "strong evidentiary basis"

is but plaintiff concedes that the standard is somewhat less

than a preponderance of the evidence. The present effects

of past discrimination need not be widespread or

pervasive. There must only be "strong" evidence of

"some" present effects. Id. at 57. Thus, if there is a

strong evidentiary basis for any one of the four present

effects of past discrimination which UMCP found to

‘7 Ii is worthy of note that the University is (to put it

mildly) in a somewhat unusual situation. It is not often that

a litigant is required to engage in extended self-criticism in

order to justify its pursuit of a goal that it deems worthy. All

other matters aside, UMCP administrators are to be

commended for the moral courage that they have demonstrated

in undertaking this self-examination with an admirable degree

of candor.

52a

exist, that would be sufficient to sustain the Banneker

Program.* For the reasons which follow, I am of the

view that all four of UMCP’s findings are supported by

strong evidence.”

* To pass constitutional muster, affirmative action

programs must also be narrowly tailored. Podberesky II, 956

F.2d at 55. See infra section V.

* The parties furiously debate the meaning of the phrase

"strong evidentiary basis." In the final analysis, after the

smoke has cleared, it appears that plaintiff contends that the

standard is "somewhat less than a preponderance of the evi-

dence" while defendants say it is the functional equivalent of

the "substantial evidence" test. The Fourth Circuit has

described the latter as either “less than a preponderance but

more than a scintilla" or as enough evidence "as a reasonable

mind might accept as adequate to support a conclusion and ...

sufficient to justify a refusal to direct a verdict were the case

before a jury." Laws v. Celebrezze, 368 F.2d 640 (4th Cir.

1966); Teagie v. Califano, 560 F.2d 615 (4th Cir. 1977).

Ultimately, what is significant is that both sides agree

that defendants’ burden is to produce something less than the

preponderance of the evidence. This standard is compatible

with the Supreme Court’s desire to "smoke out" and prohibit

"racial politics" without preventing local governments from

voluntarily eliminating the vestiges of past discrimination. City

of Richmond v. Croson, 488 U.S. 467, 493 (1989); Wygant

v. Jackson Board of Education, 476 U.S. 267, 290-92 (1986)

(O’Connor, J., concurring). Further, this standard of evidence

comports with language in Croson that states that the standard

should not be so strict as to render every affirmative action

program unconstitutional. Croson, 488 U.S. at 519 (Kennedy,

J., concurring in part and concurring in judgment) ("[A] rule

of automatic invalidity for racial preferences in almost every

case would be a significant break with our precedents. . . .").

Thus, placing an evidentiary burden upon the defendant that

is "somewhat less" then a preponderance of the evidence,

reconciles the Supreme Court’s desire to subject the rationale

of affirmative action programs to strict scrutiny without

chilling the states’ ability to voluntarily eliminate the results

ee a ee Ce eee ea A ere He alin Sige ok,

Gi eRe ens

of its past discriminatory actions. See Id. at 518 (Kennedy, J.,

concurring in part and concurring in judgment) ("[T]he State

has the power to eradicate racial discrimination and its effects

in both the public and private sectors, and the absolute duty to

do so where those wrongs were caused intentionally by the

State itself.").

I hold below that UMCP has a strong basis in evidence

for finding that there exist four present effects of past

discrimination: 1) UMCP’s bad reputation in the African-

American community, 2) underrepresentation of African-

Americans in UMCP’s student body, 3) African-Americans’

disproportionally low retention and graduation rates, and 4)

the existence of a hostile racial climate at UMCP. To the

extent that reasonable minds may differ over whether these

conditions exist or whether they are linked to UMCP’s past

discrimination, it is important to remember what UMCP’s

burden of production is. They need not prove these present

effects of past discrimination beyond a reasonable doubt, by

clear and convincing evidence, or even by a preponderance of

the evidence. The standard they must meet is less than a

preponderance of the evidence. To require any greater a

standard would be in explicit contradiction of the Court’s

requirement in Croson that the burden of persuasion remain

with the plaintiff in reverse discrimination cases. 488 U.S. at

500.

I should further note that the language which I later

employ in upholding UMCP’s findings could be interpreted as

suggesting that defendants bear the ultimate burden of proof.

In fact, if that were so, I would still find that defendants are

entitled to summary judgment. However, in a reverse

discrimination case such as this the burden of persuasion

always remains with the plaintiff. Croson. 488 U.S. at 500.

Thus, while plaintiff has challenged the evidence relied upon

by UMCP, he has not produced any persuasive affirmative

evidence in support of his position. This absence of evidence

makes defendants’ entitlement to summary judgment even

more clear. See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986) ("[T]he plain language of Rule 56(c) mandates

entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing

S4a

The first present effect of past discrimination found

by UMCP in its Decision and Report is the University’s

continuing poor reputation in the African-American

community, particularly among parents, high school

counselors and prospective students.

1. The Evidence Relied Upon By UMCP

As part of the process leading to the issuance of its

Decision and Report, UMCP commissioned an evaluation

of the Banneker Program by Walter R. Allen, a sociology

professor at the University of California - Los An-

geles.” Allen, in preparing his study, interviewed high

school guidance counselors and conducted four student

focus groups. One counselor told Allen that in the past

the University “wasn’t a friendly place for Blacks to be.

They didn’t want you to be there." Another said: "I

don’t feel good about College Park... yet." The students

confirmed that these impressions were conveyed to them

by their elders. According to Allen, "the single most

sufficient to establish the essential element to that party’s case,

and on which that party will bear the burden of proof at trial.

In such a situation, there can be ‘no genuine issue as to any

material fact,’ since a complete failure of proof concerning an

essential element of the nonmoving party’s case necessarily

renders all other facts immaterial. The moving party is

‘entitled to a judgment as a matter of law’ because the non-

moving party has failed to make a sufficient showing on an

essentia] element of her case with respect to which she has the

burden of proof.") (quoting Fed. R. Civ. P. 56(c)).

°° "The Benjamin Banneker Scholars Program For High-

Achieving African-American Students At The University Of

Maryland - College Park: An Evaluation Study ("The Allen

Report"). Def. Ex. 6.

ht NMR Pita

SSa

vivid image they had of College Park prior to attending

the campus was that it was an all-white university.’ This

common perception they said, was the university’s

‘reputation.’" Id. at 34. Thus, Allen concluded that

UMCP "is in large degree burdened by its history when

it comes to recruiting Black students." Id. at 30.

Joe R. Feagin, a race relations consultant, prepared

two reports for UMCP, one focusing on the views of

African-American parents and the other on the views of

African-American students.*! The first report was based

upon a series of focus groups consisting of black parents

of college age children. E/ighty-three percent of the

participants in these groups indicated on an exit question-

naire that the reputation of UMCP is "mostly negative" or

"somewhat negative." Feagin Report I, at 7. Seventy-six

of the parents "tended to agree" or "strongly agreed" that

"in the past, historically, the University of Maryland at

College Park has done a poor job of serving the black

community and black students." Individual comments

made during the course of the focus group proceedings

confirmed these views. For example, in one of the focus

groups of African-American parents, the following

exchange occurred:

Black parent (male): I’m old enough, I’m

old enough to remember when practically every

teacher in... Maryland graduated from Morgan.

You know so it wasn’t a lot of options at one time,

you know.

‘1 "Black Students At The University Of Maryland

(College Park): The Views Of Black Parents In Maryland"

(Feagin Report 1), Def. Ex. 7. Feagin, "Black In A White

World: Black Students At The University Of Maryland

College Park)" (Feagin Report II), Def. Ex. 13.

er er 0 ev

SEN oS Or

56a

Black parent (male): Looking back I was

) raised here, and I’ve been in Montgomery County

most of my life, and I can remember people

applying to University of Maryland, and they

would be referred to, because of their race, you

know, wouldn’t you be more comfortable at

Maryland State, which was the university at

Eastern Shore, or Morgan, or Bowie. They would

invariably try to refer you to a black school.

Black parent (female): It is, that’s true.

It’s true it is. They would do that. If you go to

them they would refer or they would recommend

or suggest that you go to another college.

Feagin Report I, at 13-14. Similarly, the remarks of one

of the participants in a student focus group illustrate the

importance that the perceptions of parents play in forming

their children’s views of UMCP.

I had so many like people my parents age

and people older than that going, "Oh girl don’t go

there" you know people just telling me that it was

the worst place for me to go. "Go to UMBC. Go

to ."" Well Eastern Shore was the one they

kept telling me to go to since it’s predominantly

black. . . . [Focus group leader: Do you know

what made them say that?] Well, College Park

didn’t have it’s first student, I think it was a

graduate student, till like the mid-sixties. The first

black student, I mean, and the environment just

wasn’t conducive I guess to black students. So it’s

just the kind of thing that we knew we weren't

wanted here. I guess that’s what they meant.

BLA CCR Di RARE URE SUA

57a

Feagin Report II, at 9-10.

The experience of UMCP officials involved in

recruiting black students provides equally solid evidence

of University’s poor reputation among African-

Americans. James Newton, the Acting Assistant to the

Vice-President of Academic Affairs at UMCP, has stated:

I was born in 1947, and until 1975 I had

never set foot on the College Park campus, even

though I lived only 34 miles away. I was familiar

with College Park’s history as a segregated

campus: I heard stories from my wife’s siste7s,

who are black, about College Park as the

institution that told them they were not welcome as

graduate students there and as the institution that

received funding from a State that sent my in-laws

to go to graduate school in New York rather than

allowing them to attend UMCP. I did not regard

the College Park campus as a place that would

welcome me as a black student or a black teacher.

It was during my one year at UMCP that I

learned first hand about the way teachers,

administrators and students in Baltimore City

perceived UMCP. I spoke to those individuals in

my capacity as a UMCP recruiter. I was told by

many teachers, principals and counselors that they

were not welcome in the 1950’s to perform

graduate work at the College Park campus. These

individuals, of course, were the ones who were

advising black students in 1976 (and in some cases

still are rendering that advice today) on the

colleges these students should attend. Almost

58a

invariably, the college would not be College Park.

Those students would be encouraged instead to

attend one of the State’s historically black colleges

because these high school principals and counselors

did not feel that blacks would do well or be

welcomed at UMCP. The principals and

counselors with whom I spoke expressed the fear

that blacks would not be treated fairly by faculty,

who in many instances exhibited negative

expectations toward black students. For these

reasons, principals and counselors simply did not

believe that the black students in their schools

could be successful at UMCF. Even though I tried

to point out the opportunities available at College

Park for black students, the administrators I spoke

to were not telling the students to look at College

Park because they believed it was not a good place

to go based on their own, negative experiences,

and based on similar experiences of their former

students, whose feedback over the years indicated

that life at UMCP for blacks had not significantly

changed over time.

Def. Ex. 10, 11 6 and 8.

To similar effect is the affidavit testimony of Mary

E. Cothran, Director of the Office of Multi-Ethnic

Student Education at UMCP.

PRR, RecN Key Sh

;

59a

In 1980, when I began working in

undergraduate admissions, one of the top priorities

at UMCP was to increase the presence of blacks in

the student body and enhance their experiences.

This was no small task, particularly because the

community perceptions at that time were that

UMCP was not open to or supportive of black

students. The African-American community,

including but not limited to Montgomery County

civic groups and public school groups, did not

believe that black students would do well at

UMCP. Many of the high school counselors and

community leaders with whom I spoke encouraged

black high school students to attend other schools

rather than the University of Maryland because of

this school’s history of segregation. As stated

earlier, it was mainly parents, counselors and

students from outside Maryland who perceived

UMCP as a positive educational environment. .

Def. £z. 11, 97,

Linda Clement, the Director of Undergraduate

Admissions at the University, concurs:

The University’s history of segregation continues

to affect its ability to recruit Black students.

Parents, counselors and others who influence the

student’s choice of undergraduate institutions recall

that history. Such notoriety continues to impact

reputation; reputation once developed is difficult to

modify, especially in significant ways. The

Banneker Program is a concrete rebuttal to charges

that the University’s commitment is superficial or

rhetorical. Without it, not only will the

60a

University’s desegregation efforts be severely

hampered and some of the results be eliminated,

but the University’s diversity efforts will similarly

be retarded. Of necessity, desegregation and

diversity goals overlap in the function of this

University.

Def. Ex. 9, 4 33.

Fa Plaintiff's Arguments

The arguments that plaintiff advances in an effort

to overcome this evidence are insubstantial. First, he

presents evidence of his own intended to show that

UMCP does not have a bad reputation among African-

Americans: two surveys of black high school students,

one survey of African-American students at UMCP,

response cards mailed in by students who have decided

not to attend UMCP and the affidavit of John Roth, a

counselor at the high school that plaintiff attended. The

surveys, conducted by a high school junior, a sophomore

architecture and government major at UMCP, and a

freshman at Montgomery College, are methodologically

flawed because they are not taken from truly random

samples of students and because the surveyors made no

effort to follow up on the responses. The information

provided by the response cards is of little value in this

context since it asks no questions designed to elicit

relevant information. While Roth may sincerely hold the

views that he expresses, it does not contradict the

contrary views expressed by many other counselors and

parents and the actual experience of UMCP officials

responsible for recruitment. In any event, in determining

the constitutionality of the Banneker scholarships, the

question is not whether plaintiff can find some scatterings

Nill it an

es abe

Ei 6a ACR AEE BALE M ALD

6la

of information to support his position but whether there

is a strong evidentiary basis for the conclusions reached

by UMCP.

Second, plaintiff posits that a review of the

transcripts of the various focus groups upon which the

Allen and Feagin Reports are based discloses (1) that

researchers asked questions designed to elicit negative

responses about UMCP, and (2) that, nevertheless,

positive statements about the University were made. It

may be fair to say that in writing the body of their reports

neither Allen nor Feagin (particularly the latter) appears

to have been self-critical about his own biases and

predispositions. It may also be in the nature of focus

groups to generate self-perpetuating momentum.

However, the transcripts do not reveal that unfair leading

questions were asked as a means of obtaining slanted

responses. Moreover, plaintiff has cited only one

example of an allegedly positive remark about the

University; it related to UMCP’s reputation as a place for

black athletes to go to "prepare for professional sports."

Pl. Ex. 47 at 28.

Third, plaintiff baldly asserts that the evidence does

not establish any causal link between past discrimination

and the University’s present poor reputation among

African-Americans. Given the University’s history of

discrimination, this assertion defies belief. It is also

specifically belied by statements made by participants in

the focus groups and by the experience of UMCP officials

responsible for recruitment of African-Americans.

Fourth, plaintiff contends that since African-

Americans are not underrepresented at UMCP, any poor

reputation that the University may have is of no practical

62a

effect. This contention erronecusly assumes (as discussed

infra section IV.B.) that African-Americans are not

underrepresented at UMCP. Moreover, even if African-

Americans were not Statistically underrepresented at

College Park, the existence of the University’s poor

reputation among African-Americans would nevertheless

have an adverse effect by reducing the pool of black

Students from which it can draw. This would have the

strong potential effect of decreasing the number of high-

achieving African-American students at College Park,

contributing to racial stereotyping that perpetuates an

adverse racial climate which, in turn, hampers UMCP’s

efforts to retain African-American students.

Finally, plaintiff cites two cases, Burnet v. City of

Columbia, 1 F.3d 390 (6th Cir. 1993) and Hammon v.

Barr, 813 F.2d 412 (D.C. Cir., 1987), as standing for the

proposition that racial discrimination that occurred many

years in the past cannot, as a matter of law, be found to

cause present effects. If that were the law, then the

Fourth Circuit has asked me to engage in an academic

exercise on remand. In any event, plaintiff misreads

Burnet and Hammon. All that these cases held was that

under the particular facts presented, the past

discrimination was too remote to support a finding of

present effects. Here, the evidence is overwhelming that

a poor reputation of UMCP among African-Americans

persists.”

* Plaintiff also argues that UMCP’s reputation in the

African-American community is no worse than the reputation

of any other predominantly white university, whether or not

it has a history of de jure segregation. Thus, plaintiff claims,

it is impossible to link UMCP’s bad reputation to its past

discrimination rather than to some present societal force that

YS jhob ieee Siete pS id 8 NS Seta d RS:

A eK athe ed IE

The second present effect of past discrimination

that UMCP has found to exist is the underrepresentation

of African-Americans in its student body. The historical

data behind the finding is succinct, startling and

undisputed. "Prior to 1954, there were virtually no

African-American students on campus. The end of de

jure segregation produced no visible changes. As late as

1969, fifteen years after Brown was decided, fewer than

1% of the students at the University were African-

American. In 1970, 3.4% of the University’s full-time

undergraduates were African-American; in 1975, 6.8%:

in 1980, 7.5%; in 1985, 8.6%; in 1990, 11.2%."

Decision and Report at 15-16. The percentages of

incoming freshmen at UMCP who have been African-

American are comparable, ranging from 6.6% in 1974

(the first year in which that statistic was kept) to 10.5%

in 1985. Because of the efforts that the University has

been making, this figure increased to 15% in 1990. It

dropped to 13% and 11.3% in 1991 and 1992, respec-

tively, but again reached 15% in 1993. Def. Ex. 72.

l. Selection of a Reference Pool

The question of underrepresentation

requires, of course, the selection of a reference pool of

eligible candidates against which the level of

representation can be measured. Croson, 488 U‘S. at

501-02. Maryland Troopers Association, Inc. v. Evans,

993 F.2d 1072 (4th Cir. 1993). Plaintiff alleges that the

affects both northern and southern universities. For the

reasons stated below, infra section IV.B.2, I find this

comparative argument to be wholly without merit.

64a

reference pool should be composed of graduating high

school seniors who meet all of what he alleges to be the

minimum requirements for admission to UMCP:

completion of the required high school course curriculum,

maintenance of a 2.0 grade point average and attaining a

verbal S.A.T. score of 270 and a math S.A.T. score of

380. UMCP has not presented evidence of the percentage

(in relation to all graduating high school seniors in

Maryland) of African-American students who have met

all four of these requirements, and thus, according to

plaintiff, UMCP has not met its burden of proving that

African-American students are underrepresented in the

student body.

An affidavit submitted by UMCP’s Director of

Admissions as well as the University’s published Policy

on Admissions, establish that, in fact, the University does

not have rigid minimum admissions requirements. Def.

Ex. 9,916. Def. Ex. 108. Thus, the class of potential

applicants defined by plaintiff is artificial. Focusing upon

the 1991-92 year - the period for which the most

extensive data is available - UMCP recites a number of

statistics suggesting that the relevant reference pool

should be much larger. Those statistics demonstrate that

(1) 27.1% of the graduating high school seniors in

Maryland were African-American, (2) 22% of the

students taking the S.A.T. in Maryland were African-

American, (3) 17.9% of the students who graduated with

a course curriculum meeting the University’s general

requirements were African-American, (4) 18.1% of all

Maryland S.A.T. takers who scored over 380 on the math

S.A.T. were African-American and (5) 19% of all

Maryland S.A.T.-takers who scored above 270 on the

65a

verbal S.A.T. were African-American.” In contrast,

53 The 1991 statistics are the only ones in the record

showing the percentage of Maryland high school graduates

who were African-American, the percentage of S.A.T.-takers

who were African-American, and the percentage of African-

American high school graduates who met UMCP minimum

course requirements. The percentage of African-Americans

with minimum S.A.T. math scores are as follows: 1992

(14.6%); 1991 (18.1%); 1990 (16.3%); 1989 (16.1%); 1988

(15.5%). The percentage of African-Americans with

minimum S.A.T. verbal scores are as follows: 1992 (18.5%);

1991 (19%); 1990 (17.3%); 1989 (16.8%); 1988 (16.5%).

The percentage of Maryland’s high school graduates

graduating with a G.P.A. greater than 2.0 are as follows:

1992 (21.1%); 1991 (21.51%); 1990 (19.6%); 1989

(19.14%); 1988 (18.75%). See Def. Exs. 21-27.

Using these various applicant pools, defendant-inter-

venors employ standard deviation analysis to determine if the

disparity between the pools and the percentage of black

students entering UMCP in any particular year is simply the

product of random chance or the product of racial discrimin-

ation. In other contexts, the Supreme Court has found that

standard deviations that are "greater than two or three" give

rise to an inference that the disparities are caused by racial

discrimination. Hazelwood School Dist. v. United States, 433

U.S. 299, 307 (1977); Castaneda v. Partida, 430 U.S. 482,

496 n.17 (1977).

Here, the standard deviation analysis conducted by

defendant-intervenors on UMCP’s incoming freshmen for the

last five years, reveals gross disparities when the percentage

of African-American freshmen at UMCP is compared to the

pool of black high school graduates, black high school

graduates who took the S.A.T., black high school graduates

completing the minimum course requirements, and black high

school graduates with a G.P.A. of 2.0 or higher. Def-Int.

Reply at 23. See also, Def-Int. Ex. 37. These disparities range

from 3.4 (the deviation between the percentage of black high

school graduates with a G.P.A. of 2.0 or higher and the per-

centage enrolled at UMCP in 1989) all the way up to 17.3

(the deviation between the percentage of black high school

66a

13% of the incoming freshmen at UMCP in 1991 were

African-American. Def. Int. Ex. 37.

graduates who took the S.A.T. and the percentage enrolled at

UMCP in 1992). Id. All the deviations are above the “two

or three" considered by the Supreme Court to be "gross".

Indeed, even using the narrower pools that plaintiff suggests,

defendant-intervenors’ analysis reveals gross disparities for

certain years. Using the pool of black high school graduates

with verbal S.A.T. scores above 270 yields gross disparities

in 1988 (4.4), 1990 (3.8), 1991 (6.4) and 1992 (9.3). Def-Int.

Ex. 37. Using the pool of black students with math S.A.T.

scores above 380 yields gross disparities in 1988 (3.1), 1991

(5.4), and 1992 (5.0). Id.

* Plaintiff also argues that defendants’ claims of

underrepresentation fail to take into account the fact that 25%

of UMCP’s freshman class comes from out of state and thus

from an applicant pool with a smaller percentage of African-

Americans. This argument is erroneous for several reasons,

ranging from the specific to the general. First, in making

their standard deviation calculations, defendant-intervenors

compare only African-American freshmen of in-state origin to

the in-state applicant pool. Def-Int. Exs. 25, 26, 27, 37.

Out-of-state black freshmen and the out-of-state applicant poo!

are completely factored out of the equation. Thus, they do

not inflate the degree of underrepresentation. Second,

plaintiff’s use of the percentage of African-Americans enrolled

in the first year of college throughout the country as a proxy

for the out-of-state applicant pool is tautological. It assumes

that the pool of applicants is the same size as the number who

eventually matriculate. Thus it assumes that there is no

discrimination. Third, plaintiff's use of a national figure also

disguises the fact that UMCP takes a majority of its out-of-

State students from five jurisdictions. In 1985, 59% of out-of-

State students at UMCP come from the District of Columbia

(6%), New Jersey (15%), New York (17%), Pennsylvania

(11%), and Virginia (10%). Def-Int. Ex. 38. With the

exception of Pennsylvania, each of these states, as well as the

District of Columbia, have black populations that exceed the

67a

There is a danger (created in part by the images of

microscope and magnifying glass which the term "strict

scrutiny” brings to mind) that a judge will become

myopic when confronted with statistics such as these and

assume that a single reference pool must be selected. In

fact, such a narrowing of perspective is neither necessary

nor proper.” Rather, the judge should look at the statis-

tics aS a whole to determine if they provide strong

evidence of the existence of present effects of past

national average. Pl. Ex. 60, table 8. Since he has not taken

these region variations into account, plaintiff has not met his

burden of presenting material evidence to substantiate his

claim that there is no underrepresentation at UMCP. Finall,,

plaintiff's argument fails to recognize that although the

Banneker Program’s remedial purposes are served by

attracting African-Americans to UMCP from outside of

Maryland, see infra note 74, it is entirely reasonable for the

University to set enrollment goals in relation to its

responsibility to educate the citizens of Maryland.

»” | am aware that other courts which have considered the

constitutionality of affirmative action plans have selected a

single pool of qualified applicants in order to determine if

historically there has been underrepresentation in a given

class. See, e.g. Contractors Association of Eastern

Pennsylvania, Inc. v. City of Philadelphia, _ F.3d __ (3d

Cir. 1993); Stuart v. Roach, 951 F.2d 446 (1st Cir. 1991);

Peightal v. Metropolitan Dade County, 940 F.2d 1394 (11th

Cir. 1991); Donaghy v. City of Omaha, 933 F.2d 1448 (8th

Cir. 1991). However, these cases have all arisen in the

employment context. Not only do I consider them as

generally being of only marginal precedential value in

education cases, see infra section VI.A., I also find them to

be particularly distinguishable when selecting an applicant

pool since the college admissions process involves so many

variables. In the education context use of a sliding scale

reflecting at least some of those variables is more reasonable

and appropriate.

discrimination.

Here, minimum admission requirements, even

though subject to waiver in particular cases, cannot be

entirely disregarded. If UMCP did not consider the

qualifications of applicants, it would inflate its admission

rates but doom its attempts to increase its retention and

graduate rates to failure. On the other hand, the admis-

sions process contains too many variables to define the

reference pool by inflexible objective criteria which, in

fact, are not mechanically applied by the University.

Moreover, use of a pool defined exclusively by a high

school G.P.A. and S.A.T. results would itself disguise

the fact that the substandard, segregated education of

many parents of the current generation of African-

American students directly impacts the G.P.A.s and

S.A.T. scores of UMCP’s current black applicants.”

Education is a continuous and expanding process in which

knowledge, skills and attitudes towards learning are

communicated from one_ generation to another.

Unfortunately, we still live in a time when many African-

Americans of college age are disadvantaged in this respect

because their forbears received an inferior education

under Maryland’s segregated school system, of which

UMCP stood at the top.

Considering the evidence as a whole, I have no

difficulty in finding a strong evidentiary basis for

UMCp’s finding that African-American students are

underrepresented at College Park. The 27.1% figure

relating to all graduating high school seniors would not be

an appropriate benchmark because it does not take into

account even flexible minimum admission requirements.

On the other hand, the unknown figure advocated by

69a

plaintiff based upon strict numerical scores is likewise an

improper measure since it ignores the variables in the

admissions process and the intergeneral effects of

segregated education on the applicant pool. Using the

1991-92 school year as the prototype, the remaining scale

of percentages ranges from 17.9% (percentage of

African-Americans meeting general course curriculum

requirements) to 22% (the percentage of African-

Americans taking the S.A.T.). All of these compare

unfavorably to the percentage (13%) of incoming

freshmen at UMCP who were African-American that

year.°’ Moreover, it is improper to analyze the statistics

for any single year -- the dimension of time must be

considered. Thus, it cannot be forgotten that although

UMCP in recent years has made substantial efforts to

increase the number and percentage of African-Americans

whom it enrolls as freshmen, it was not until 1983 that

the percentage reached 10% and not until 1989 that it

reached 15.8%. It has fluctuated since that time.”

Z. Comparison with northern institutions

Plaintiff further argues that since the percentage of

black undergraduates at UMCP is comparable to the

§7

Additionally, when a standard deviation analysis is

conducted on these pools as compared to the percentage of

incoming African-Americans, the deviations are "gross." Def--

Int. Ex. 37. See supra note 53.

8 The percentage of first-time full-time freshmen at

UMCP who are African-American in each year since 1974

(when the statistic was first kept) is as follows: 1974 - 6.6%;

1975 9.4%; 1976 - 8.8%; 1977 -9.0%; 1978 - 7.9%; 1979 -

7.4%; 1980 8.9%; 1981 - 8.6%; 1982 - 9.6%; 1983 - 10%;

1984 - 9.6%; 1985 - 10.5%; 1986 - 12.1%; 1987 - 12.5%;

1988 -13.6%; 1989 - 15.8%; 1990 - 15.0%; 1991 - 13.0%;

1992 - 11.3%; 1993 - 15.3%.

70a

percentage at public universities in states that "have not

had segregated higher education systems", it is impossible

to prove that the underrepresentation at UMCP is related

to its past discriminatory acts as opposed to some present

societal condition that affects both northern and southern

universities.

Plaintiff's argument is flawed for several reasons.

First, universities are not fungible. Each has its own

institutional history, and plaintiff has presented no

evidence concerning the histories of the universities he

alleges to be comparable. Second, most of the states

whose universities plaintiff alleges are comparable to

UMCp have smaller black populations than does

Maryland. Thus, the fact that Maryland’s percentage of

enrollment exceeds theirs is of little import.

Most importantly, plaintiff's assertion that northern

universities do not have a history of segregation is

unproven and wrong. While northern states did not have

de jure segregation, the admissions policies of nearly

every northern college and university excluded African-

Americans from college campuses almost as effectively as

the legal requirements of segregation in southern states.

Between 1826 and 1910, only 693 blacks were graduated

from predominantly white colleges.” This minuscule

number was not due to a lack of qualified candidates. By

1930, predominantly black colleges were graduating

approximately 19,000 students a year. Even the City

College of New York, which had no admissions

requirements and an institutional mission to serve the

*° Blassingame, Comment, in The Rockefeller Foundation

Working Papers on Bakke, Weber and Affirmative Action at

208 (1979). Ballard, The Education of Black Folk at 52

(1973).

Nope

jgiline, Burts

559 init en hati Malika Sathana

71a

poor, had only two black graduates by 1910. In fact,

the vast majority of predominantly white colleges did not

begin admitting African-Americans until after World War

II.°' Even after the Second World War, northern

colleges admitted only a tiny quota of black students each

year. By 1954, African-Americans made up only 1% of

freshmen at predominantly white institutions. This

percentage did not increase above 2% until the late

1960s.°°

Not surprisingly, the tiny portion of black college-

goers who matriculated at predominantly white institutions

before the late 1960s found themselves in profoundly

inhospitable environments, even at the most "progressive"

liberal arts colleges. Forced to live in segregated

housing, excluded from white social events and

institutions, and often banned from participating in

intercollegiate athletics, African-Americans at northern

universities led lonely, secluded lives.” As George

*° Flemming, "Black Students in Higher Education to

1954" in Thomas ed., Black Students jn Higher Education

(1980). Ballard, supra note 59, at 52.

6! Alexis, "The Effect of Admissions Procedures on

Minority Enrollment in Graduate and Professional Schools,"

in Rockefeller Foundation Working Papers at 53.

Blassingame, supra note 59, at 209. Ballard, supra

note 59, at 52.

°* Mingle "The Opening of White Colleges and

Universities to Black Students," in Thomas at 24. Ballard,

supra note 59 at 60-80.

* Mingle, supra note 63, at 22. Ballard, supra note 59,

at 54-56.

72a

Davis, an African-American writer and educator, wrote

about the life of a black student at a small liberal arts

college: "[F]or four years he had felt distant and detached

in this fragile, alien environment. . . . [T]he white

students looked the same as the ones he had known... .

They were still the same healthy, unmenaced children of

the rich that made his life so lonely for four years."

Considering this extensive record of de facto

discrimination on northern college campuses, plaintiff's

comparison of UMCP to its peer institutions in the north

fails to prove that the University has no present effects of

past discrimination. Both northern and southern

institutions of higher education have practiced

discrimination against African-Americans. Thus, the

argument that, as far as racial issues are concerned,

UMCP is more like a northern university than a southern

one, even if assumed to be true, does not eliminate the

possibility that racial problems at College Park are the

present effects of past discrimination. To the contrary,

there is no reason to assume that, considering their

history of discrimination, northern universities are not

themselves now experiencing the present effects of past

discrimination.

The third present effect of past discrimination that

6 Quoted in Ballard, supra note 59, at 54. Preeminent

civil rights lawyer Charles Hamilton Houston had similar

feelings of loneliness and alienation at Amherst College during

the midnineteen teens and at Harvard Law School during the

1920s. McNeil, Groundwork: Charles Hamilton Houston and

the Struggle for Civil Rights at 31-32, 51-52 (1983).

kh a) ean Palit lak DAE STA Re aaa

73a

UMCP has found is that African-Americans have a

disproportionately high attrition rate. I hold that there is

a strong evidentiary basis for this finding. The attrition

rate for African-American students at UMCP is

substantially higher than it is for students who are not

African-Americans. For example, for freshmen entering

UMCP in 1989, only 62.4% of the black freshmen

remained at College park after three years in comparison

to 74.5% of the white freshmen and 73.4% of the total

1989 freshmen population. Even larger disparities exist

with respect to the relative graduation rates of African-

Americans and other groups. For freshmen entering

UMCP in 1986, only 42.5% of the black freshmen

graduated after six years in comparison to 63.5% of the

white freshmen and 63.5% of the total 1986 freshmen

population. No other identifiable group at the University

has such low retention and graduation rates. Def. Exs.

35-41.

Plaintiff does not challenge the accuracy of these

Statistics. Rather, he argues (as he does elsewhere) that

since the retention and graduation rates at UMCP are

comparable to those at northern universities that have no

history of de jure segregation, they cannot be said to be

an effect of the University’s past discrimination. This

argument fails for the same reason as it does in other

contexts: it is based upon the erroneous assumption that

there was no de facto segregation at northern universities.

See supra section [V.B.2. Plaintiff also suggests that low

African-American retention and graduation rates can be

explained by the fact that, because of an admissions

preference given to African-American’s in UMCP’s

admissions process, blacks who get into the University

are generally less qualified than whites. However, the

record establishes that even controlling for S.A.T. scores,

74a

African-American retention and graduation rates are

lower than white retention rates; given a group of people

with the same S.A.T. scores, a higher percentage of

blacks drop out than whites. Def. Ex. 114, table 12.

Left unexplained by plaintiff, the low retention and

graduation rates among African-American students stand

as perhaps one of the strongest testaments to the

continuing racial problems which UMCP faces. If no

effects of past discrimination remained, one would expect

the relative retention and graduation rates of blacks and

non-blacks to approximate one another. Undoubtedly,

one of the factors that contributes to the high attrition rate

among African-American students is that many of them

are less wealthy than their white counterparts and cannot

continue their education at the University because of

financial hardship. Plaintiff would argue that, despite the

adverse impact of educational deprivation upon

employment opportunities, this is of no moment because

economic disparity among the races is an effect of

"societal discrimination" which UMCP is not permitted to

remedy by a race-based scholarship program. See

Croson, 488 U.S. at 498-500; Wygant 476 U.S. at 274-

76. Even assuming this to be true, it is not only financial

hardship that leads students to leave college before

graduation. In given cases an absence of commitment to

the school because of its poor reputation in the

community from which a student comes, the lack of

shared experience with family members to help the

student through the arduous process of higher education,

the absence of African-American members of the faculty

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75a

to serve as mentors™ and the existence of a hostile racial

atmosphere on campus are other significant contributing

factors. Def. Ex. 114. These conditions are all directly

attributable to Maryland’s history of segregated education

of which UMCP was an integral part.

The fourth present effect of past discrimination

which UMCP has found to exist is a prevailing perception

that the climate on the college Park campus is hostile to

African Americans. Again, there is a strong evidentiary

basis in the record to support this finding.

A study commissioned by the University in 1989

(before plaintiff filed this suit) concluded that there is a

"chilly climate for Blacks at UMCP" manifested by

complaints of racism made to the University’s Office of

Human Relations, by overtly racist comments by faculty

and teaching assistants, by the lack of African-American

leaders on campus, and by the failure of campus media

entities to cover the accomplishments of black faculty.

staff, and students. Def. Ex. 17 at 10-16. Responding to

this report, the University commissioned an in-depth

study of race relations on campus. An overwhelming

majority of black students (86%) surveyed said that race

relations between students were a problem at UMCP and

89% of these students said it was a very serious oF

somewhat serious problem. A smaller majority of white

students (56%) said that race relations were a problem on

campus. Def. Ex. 34 at 111. Other findings indicated

In 1989, the most recent year for which there are

Statistics in the record, African-Americans made up 3.8% of

UMCP’s faculty. Def-Int. Ex. 21, table 24.

76a

that there was a perception that anti-black behavior was

frequently exhibited on campus:

- 82% of black respondents (including both

faculty and students) and 68% of white

respondents reported observing "racial role

stereotyping of black students by students

often or sometimes."

. 50% of black students and 29% of white

respondents reported that they have

observed hostility by students towards black

students often or sometimes.

- 34% of black students and 20% of white

students reported observing often or

sometimes exclusion of black students from

social events "because of race."

Id.

The student focus groups conducted by Dr. Feagin

yielded similar results. Eighty-nine percent of the students

Feagin interviewed "disagreed" or "tended to disagree"

with the statement: "the University of Maryland at

College Park is a college campus where black students

are generally welcomed and nurtured." Feagin Report Il,

at 10. Comments by students in these focus groups

evidenced the existence of condescending attitudes and

mistreatment by faculty members,°’ and casual use of

6? “A lot of my teachers and students handle me with kid

gloves. ... I’m like "Give me the truth the way it is an I'll

deal with it and give it back to you.’ But that’s what I don’t

like. I can tell when they’re being patronizing and that

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77a

racial epithets by students.“ Another student reported

simply feeling invisible on campus:

So I got my yearbook . . . [a]nd I’m going through

it and I’m not seeing very many black people and

the one -- they had a picture of like I think blacks

in pre-med. That was the only black scholastic

organization that they had. They had two pages

for the homecoming step show, that was about it.

They did their traditional dorm life, students

moving in, all this for white students like I guess

black students didn’t move in. They, like, landed

on the roof and snuck in, into the dorms. ... But

yet it’s part of the yearbook. You know,

glorifying their life and their recreational activities,

and where black students aren’t even represented

in the yearbook.

Id. at 18

happens a lot so I just deal with it." Def. Ex. 13 at 14. Other

students reported not getting into classes or having their

questions dismissed because they were black. Id. at 18, 25.

* "(Ml]y best friend was a white guy, and he’s in the

Greek system and that’s like what I think is a racist thing

about campus. And I went to a party the other day , and one

of his brothers got mad I was there. Well he just said "I just

got rid of some little black [epithet]." Def. Ex. 13 at 15.

"[O]nce 1 was down on Route 1 . . . and somebody yelled

‘nigger’ out of the car. And | was like "oh, what am I

supposed to do?" Id. at 16. “Last year, while walking to the

campus dining hail with a group of fellow African-American

female classmates, a group of white males came up behind us

and made several lewd sexual comments to us, specifically

focused on the fact that we were black women." Def. Ex. 48,

"11.

78a

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. Detrick, Still Suffering from Racism,

UMCP Diamondback, April 26, 1989 at 1. Def. Ex. 13

at 23. Def. Ex. 7 at 23. Def. Ex. 90,913. Def. Ex. 13

at 11. Separate homecomings exist for whites and blacks.

Def-Int. Mem. at 44. Academic segregation also exists,

with very few black students getting degrees in the

sciences and other technical fields. Def. Ex. 43, table 16

(showing that African-American comprise only 1% of the

degrees awarded in mathematics, architecture, and the

physical sciences).

In the face of this evidence of an adverse racial

climate at UMCP, the main dispute between the parties is

as to whether this climate is the result of the University’s

past discriminatory acts. Several of the experts who

testified before the University’s administrative hearing

linked UMCP’s adverse racial climate to its history of de

jure and de facto segregation. Def. Ex. 18 at 28. Def.

Ex. 13 at 2-3. Def. Ex. 14 at 12, 25. Even more

convincing evidence of the historical origin of UMCP’s

adverse racial climate is provided by the stream of racial

incidents that have continuously marred the University

since de facto segregation ended in the early 1970s.

Professor William Sedlacek examined UMCP’s school

newspaper from 1970 to 1991 and kept count of articles,

commentary and letters to the editor that had "negative

implications" for African-American students. These

included reporting on racist incidents, racist letters to the

editor and articles, commentary and letters highlighting

black academic failure, preferential treatment, and social

Dig so ie dee

79a

isolation.”’ Def. Ex. 15 at 38-40.

The quantity and regularity of these articles and the

fact that they have continued unabated since UMCp began

desegregating strongly suggests that the University’s

adverse racial climate is a legacy of its past

discriminatory practices. Cf. United States v. Fordice,

112 S.Ct. 2727, 2736 n.4 (1992) (holding that continuing

racial identifiability 1s probative as to whether a state has

dismantled its segregated system of higher cducation).

Universities necessarily have cultures that span several

entering classes, and generations of college students

cannot be separated from one another. The very nature

of the college experience is that younger students learn

from older ones. Accordingly, the causes of a hostile

racial climate cannot be divided into discrete cabined

units, as plaintiff seeks to do. Since 1970, both black and

white students have been handing down racial attitudes

Plaintiff considers theses articles to be evidence of a

"robust discussion of race." Pl. Reply at 47. This comment

indicates that plaintiff misses the point of Professor Sedlacek’s

thesis. Sedlacek is not saying that the discussion of racial

issues On campus is bad from an intellectual perspective. He

is instead arguing that when these issues are discussed,

AfricanAmericans are consisiently portrayed in a negative

light. Additionally, the fact that these issues continually

appear in the campus newspaper -- be that a good thing or not

-- has a negative impact on black students’ attitude about the

racial climate at UMCP because they foster the impression

that race is the most significant thing about an African-

American student’s persona at the University. In any event,

Sedlacek’s study indicates a depressing number of items

appearing in the newspaper that are not "a robust discussion

of race" but are instead manifestations of outright racism at

UMCP, including letters from the Ku Klux Klan and reports

of racial epithets being shouted at anti-apartheid

protesters. Def. Ex. 15 at 23-33.

that perpetuate a hostile racial climate

Even if the continuous stream of racial incidents is

not enough to link UMCP’s present racial climate with

past discrimination, a close examination of the sources of

racial tension on campus reveal that they are intimately

related to UMCp’s past discrimination. Many of the

disputes between white and African-American students

since the end of de facto segregation have been over

UMCP’s attempts to integrate or its failure to do so. As

the University has attempted to equalize the funding

between black student organizations and white student

organizations, white students have lashed out at black

students.” When the University has taken actions that

the African-American community at College Park

perceives as scaling back desegregation, African-

Americans have lashed out at the University.” If the

University had not been segregated, if it had always

' See, ¢.g.. Det. Ex. 70 at 165, 166, 168-70. Crowley,

What About Poor Whites? UMCP Diamondback, March 3,

1980 at 4. Patterson, Delegates Lodge Protest of BSU-

Sponsored Event, UMCP Diamondback, February 8, 1982 at

1. Lift the Veil. UMCP Diamondback, February 23, 1983 at

4. Lake, Hard Work Makes You Free, UMCP Diamondback,

April 12, 1988 at 4. Bennett, Needy Minority Students

Benefit from Banneker Scholarships, UMCP Diamondback,

June 20, 199° at |

"' See, e.g., Def. Ex. 70 at 211-14, 219-22, 228-30.

Green, What About Blacks? UMCP Diamondback, September

6, 1973 at 4. Malloy, Legislators Hear Blacks’ Gripes,

UMCP Diamondback, March 7, 1977 at 1. Thomas, Blacks

Decry Gonzalez Remarks, UMCP Diamondback, January 23,

1979 at 1. Humphreys, Black Group Hits Graduate Dean

Search, UMCP Diamondback, April 23, 1980 at 1. Gonzales,

BSU Protests Hiring Policies, UMCP Diamondback, March

4. 1982 at 1.

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supported black and white fraternities and sororities

equally, and if it had funded the cultural activities of all

groups on campus equally, then there

would be no need for the present day actions that the

University must take to rectify these problems which are

contributing to racial tension. ”

In my earlier opinion I found that the Banneker

Program is “narrowly tailored" to remedy the effects of

past discrimination that continue to exist at UMCP. In its

opinion the Fourth Circuit did not reach that issue.

However, it questioned in passing the scope of the

Program, indicating that while "the program may be

valuable as a recruitment tool, . . . the value of the

much-expanded program, as opposed to the program in its

more limited form or other non-race-based remedies, 1s

not clear." Podberesky v. Kirwan, 956 F.2d at 57 n.7.

In United States v. Paradise, 480 U.S. 149 (1987),

the Supreme Court established a framework for

addressing the “narrowly tailored" question. It identified

four criteria by which to judge the nexus between a

remedial plan and the interest it purports to serve: "the

necessity for relief and the efficacy of alternative?

Here, plaintiff also makes his usual comparative

argument: that since the racial climate at certain northern

universities is hostile, defendant cannot prove that UMCP’s

adverse racial climate is related to its past segregation. For

the reasons I previously stated, I consider this argument to be

without merit. See supra section IV.B.2.

§2a

remedies; the flexibility and duration of the relief,

including the availability of waiver provisions; the

relationship of the numerical goals to the relevant labor

market; and the impact of the relief on the rights of third

parties." 480 U.S. at 171. I will briefly consider each of

these factors.

1. The Necessity For Relief And The Efficacy

Of Alternative Remedies

UMCP’s finding that the consequences of its

segregative past continues to be felt ipso facto establishes

the necessity for relief. However difficult other issues in

this case may be, no one would contend that a public

university may simply ignore present effects of past

discrimination for which there is a strong evidentiary

basis. Similarly, it cannot be seriously contended that the

Banneker Program is not extremely effective in

remedying the problems which UMCP has found to exist.

By attracting high-achieving black students to the UMCP

campus, the Program directly increases the number of

African-Americans who are admitted and likely to stay

through graduation. Even more importantly, the Program

helps to build a base of strong, supportive alumni, combat

racial stereotypes and provide mentors and role models

for other African-American students.” Continuation of

In Wygant, the Court held that a "role model theory"

was an impermissible basis for an affirmative action program.

476 U.S. at 276. However, the program that the Court struck

down in Wygant used role models in an attempt to alleviate

what the Court considered to be societal discrimination. Id.

at 274. In this instance, the role model function of the

Banneker scholars is directly related to eliminating specific

present effects of past segregation. Role models are being

used as a tool to combat the present effects of UMCP’s past

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83a

the Program thus serves to enhance UMCP’s reputation

in the African-American community, increase the number

of African-American students who might apply to the

; University, improve the retention rate of those African-

American students who are admitted and help ease racial

tensions that exist on the campus.

UMCP has considered the two alternatives which

j plaintiff espouses and has concluded that they would not

3 be nearly as effective as the Banneker Program in

remedying the problems that continue to exist. The first

of these alternatives - a raceblind merit-based scholarship

program based upon conventional criteria such as high

school G.P.A. and S.A.T. scores - would not result in a

sufficient number of African-American students receiving

scholarships to have the necessary curative effects. This

fact is established conclusively by UMCP’s experience

with the Key Scholarship Program which is race-neutral

and merit-based. In 1992, out of thirty-six Key

Scholarships awarded, African-Americans received two,

Asian Americans received ten, Hispanics received one

and whites received twenty-three. In 1991 twenty-seven

Key Scholarships were awarded: two to African-

Americans, five to Asian-Americans, one to Hispanics

and the remainder to whites. In 1990 fifty-two Key

Scholarships were awarded; African-Americans received

two, Asian-Americans received seven, Hispanics received

two and whites received twenty-three. In 1989, forty-

seven scholarships were awarded: one to an African-

American, three to Asian-Americans, two to Hispanics

and forty-one to whites. Def. Ex. 61.

illegal acts.

%4a

The second possible alternative - expansion of

need-based scholarships on a race-neutral basis - would

likewise be ineffective in achieving the purposes for

which the Banneker Program is designed. UMCP does

not shy away from the fact that the Banneker Program is

a recruiting tool. As analyzed by the University, its

success in curing the vestiges of its past discrimination

depends upon it attracting high-achieving African-

Americans to the College Park campus.” Because such

students often come from middle-class families and would

not qualify for financial assistance, an increase in racially-

neutral financial aid packages would lack the same

remedial effect. Indeed, UMCP’s experience with the

Frederick Douglass Scholarship Program which provides

need-based awards solely for African-Americans -

demonstrates that African-Americans meeting — the

Banneker qualifications are not drawn to College Park by

such a need based program. Def. Ex. 1A at 49-50.

r 4 The Flexibility And Duration Of The Relief

The Banneker Program is not "flexible" to the

extent that it is limited to African-Americans. This

characteristic is by definition common to all affirmative

action programs. Indeed, if a program were to benefit

™% Plaintiff suggests that the Banneker Program is not

"narrowly tailored" because it awards scholarships to African-

Americans from outside of Maryland. Although it obviously

would be preferable to award Banneker Scholarships to

Maryland AfricanAmericans who meet the necessary

requirements, the Program’s purposes of increasing the

number of African-American role models and mentors on the

campus, of breaking down cultural barriers and combating

racial stereotypes are served regardless of whether Banneker

scholars are Maryland native or not.

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85a

persons of a class that was not a victim of past

discrimination, it would be unconstitutionally overbroad.

In any event, even if the Banneker Program’s racial

exclusivity were to count against it under the Paradise

criteria, it gives it the virtue of candor. It is far better to

confront an issue forthrightly than disguise it by dishonest

compromise. Here, providing scholarships to students

who are not African-American would not serve the

purpose of the Banneker Program, and formally opening

the Program to all while limiting it in practice to a few

would be a mere legal contrivance. It is by such

stratagems that institutional integrity is undermined.”

As to the question of duration, in its Decision and

Report UMCP stated that "while it assumes that

remedying past discrimination and achieving a racially

diverse campus community will remain one of its

objectives for the foreseeable future, it does not assume

that the Banneker Program must be a perennial feature."

Decision and Report at 53. UMCP is required to review

the Program periodically, at least once every three

academic years, for the purpose of determining whether

the conditions which it is intended to redress persist and

whether it is being effective in attaining its goals. To ask

more of the University would be unreasonable. It does

not possess a crystal ball that would enable it to predict

Plaintiff makes much of the fact that in its original

form the Banneker Program was open to all minorities. The

record establishes, however, this aspect of the original

program stemmed from legal advice that the Banneker

Program could not be sustained if it were restricted to

African-Americans. However sound at the time it was given,

this advice has now been overridden by subsequent case law

that permits race-conscious remedies where past discrimination

warrants.

86a

the precise year in which it will overcome its segregative

past. Attitudes cannot be changed overnight, and the

temporal scope of an effective remedy cannot be

arbitrarily defined. Rather, a curative program must be

evaluated over time in the context of the institution’s

changing environment. The regular review process which

UMCP has imposed upon itself will assure that such

evaluation will occur.

3. The Propriety Of The Program’s Numerical

Goals

In measuring the propriety of the Banneker

Program’s numerical goals, this court is supposed to

compare the number of Banneker Scholarships to the

"relevant labor market." Paradise, 480 U.S. at 171.

Since the number of scholarships given is small, the

Banneker Program satisfies this inquiry. If the relevant

labor market is incoming freshmen -- who number

approximately 3100 -- and the number of scholarships

given is in the high twenties, then less than 1% of the

"labor market" receives a scholarship. Def. Ex. 72.

Def. Ex. 7 at 145-58. This percentage is small compared

to any of the possible goals that the parties have bandied

about, be it the 27.1% figure (percent of black high

school graduates), 17.9% figure (black high school

students who have met the core curriculum requirements)

or even 14.6% (black students scoring above 370 on the

math S.A.T.).

4. Impact Of The Program On The Rights Of

Third Parties

Perhaps the greatest strength of the Banneker

87a

Program is that it is designed to remedy the effects of

past injustices to African-Americans without interfering

with the rights of others in the process. Banneker

scholarships are awarded only after admission decisions

are made, and they thus have no effect upon whether a

student who is not African-American is able to attend

UMCP. Further, the Program consumes only 1% of the

total financial aid budget at the University. Thus, while

I ruled in Podberesky I that plaintiff has suffered a legally

cognizable harm sufficient to confer standing upon him,

neither he nor any other non-Banneker student has

suffered any appreciable monetary loss from the award of

Banneker scholarships.” At bottom, the only damage to

”° UMCP’s Director of Admissions has stated by affidavit

that if the Banneker Program were discontinued, the funds

which it utilizes would not be placed into general scholarship

funds but would be channeled into other desegregation

programs. Def. Ex. 9, 134. In that event, destruction of

the Program would provide no monetary benefit at all to

plaintiff or others similarly situated to him. In any event, the

Supreme Court has recognized that in affirmative action

programs "innocent persons may be called upon to bear some

of the burden of the remedy," and that as long as these

burdens are not "undue" or "unacceptable" the program will

pass constitutional muster. Wygant, 476 U.S. at 280-81;

Metro Broadcasting v. F.C.C., 110 S.Ct. 2997, 3026-27

(1990), Paradise, 480 U.S. at 182. The minimal burden

imposed on nonminorities by the Banneker Scholarships meets

this standard. Amounting to less than 1% of UMCP’s

financial aid budget, the removal of the Banneker Scholarship

funds from the general pool of financial aid awards has a

negligible impact on third parties applying for aid. Def. Ex.

IA at 52-53. Def. Ex. 59, 91 26. See, e.g., Metro

Broadcasting, 110 S.Ct. at 3026-27 ("we disagree that the

distress sale policy imposes an undue burden on

nonminorities. By its terms, the policy may be involved at the

Commission’s discretion only with respect to a small fraction

of broadcast licenses. . . ." (emphasis added); Fullilove v.

88a

plaintiff is the insult to his sensibilities caused by the

continuation of a program which he believes to be wrong

in principle. However sincere his views in that regard

may be, the harm which he suffers is far outweighed by

the needs and goals the University has articulated.”

VI.

Having found that there is a strong evidentiary

basis for finding that present effects of past discrimination

exist at UMCP, I have completed the task which the

Fourth Circuit has asked of me on remand. During the

course of writing this opinion, however, I have reached

the conclusion that in our earlier opinions both I and the

Fourth Circuit may have constructed too rigid a

framework of analysis. Because I have come to believe

Klutznick, 448 U.S. 448, 484 (1980) (holding that the burden

on nonminorities caused by a 10% minority set aside program

was “relatively light"). Thus, even if plaintiff and others like

him did suffer a slight financial injury, this would not render

the Banneker Program unconstitutional.

” | do not intend to demean plaintiff's concerns. An

instinct for equal treatment lies at the heart of the idea of

justice. Indeed, many Americans or their forebears came to

this country for the very purpose of escaping systems of group

preference and privilege which deprived them of individual

opportunity. I also do not suggest that affirmative action

programs, however moderate, are a panacea for remedying

past ills. The concept that history is progressive by nature is

an illusion, and over time affirmative action programs may

prove to be counterproductive. This will be particularly true

if they reenforce the stereotype that African-Americans

succeed only because of special favor and generate sustained

resentment among those not benefitted by them. UMCP, has,

however, itself recognized this potentiality, Decision and

Report, at 45, and no doubt will be cognizant of it as it

conducts it periodic review of the Banneker Program.

89a

that (1) precedents involving employment disputes provide

imperfect analogies for determining the constitutionality

of an affirmative action program in the education context,

and (2) focusing solely upon past discrimination in

education cases blurs vision and obstructs understanding,

I feel compelled to add a few words.

The standard that the Fourth Circuit and I have

heretofore used in this case -- that there must exist a

strong basis in evidence of present effects of past

discrimination -- finds its genesis in the context of

employment discrimination. See, e.g., Croson, 488

U.S. 467; Wygant, 476 U.S. 267.” Reflexive use of the

same standard in the education context fails to

acknowledge that the Supreme Court has consistently

recognized that discrimination in schooling is the most

odious form of discrimination.

In Brown v. Board of Education the court held

that: "[e]ducation is perhaps the most important function

of state and local governments. Compulsory school

attendance laws and the great expenditures for education

both demonstrate our recognition of the importance of

education in our democratic society." 347 U.S. 483, 493

(1954). Because of the paramount importance of public

education in our society, the Court has created aggressive

affirmative duties in the area of primary and secondary

school desegregation (Keyes v. School District No. 1, 413

U.S. 189 (1973); Green v. New Kent County School

Board, 391 U.S. 430 (1968)) and a presumption that the

® Indeed, with the exception of Regents of the University

of California v. Bakke, 438 U.S. 265 (1978), all the extant

jurisprudence on affirmative action was created in employment

discrimination cases.

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90a

effects of the segregation continue until a court finds

otherwise. Board of Education of Oklahoma City v.

Dowell, 111 S.Ct. 630 (1991). The primary importance

of education also explains why the Supreme Court and

various lower courts are willing to consider remedies that

encompass a State’s entire system of higher education as

opposed to a single school. United States v. Fordice, 112

S.Ct. 2727. United States v. Louisiana, 815 F. Supp.

947 (E.D. La. 1993). Knight v. Alabama, 787 F. Supp.

1030 (N.D. Ala. 1991).

Thus, the various restrictions that the Court has

applied to affirmative action programs in the employment

context -- particularly the prohibitions against remedying

the effects of "societal discrimination", or discrimination

that was done by another "governmental unit" -- appear

inappropriate in the education context where the effects of

past discrimination are obviously societal in scope.”

Indeed, the Court emphasized the broad social effects of

education in Brown:

[Education] is required in the performance

of our most basic public responsibilities, even

service in the armed forces. It is the very

foundation of good citizenship. Today it is a

principal instrument for awakening the child to

cultural values, in preparing him for later

professional training, and in helping him to adjust

7 Even if it was held that the "governmental unit"

restriction is applicable in the education context, it would be

nonsensical to hold that institutions of higher education may

not attempt to remedy past discrimination by primary or

secondary schools. Systems of public education are just that -

- "systems." The schools within them are inextricably linked

to one another.

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normally to his environment. In these days, it is

doubtful that any child may reasonably be expected

to succeed in life if he has been denied the

opportunity of an education.

347 U.S. at 493. A fire department’s discriminatory

hiring practices have little or no effect on the society at

large. But discrimination in the nation’s educational

institutions has created a ripple effect that necessarily

affects every aspect of our economy and society.

Accordingly, it seems entirely proper that in order to cure

these effects, legislatures and educational administrators

be given more leeway in fashioning remedies that take

into account the vast extent of the damage that has been

done by our shameful legacy of involuntary segregated

education.

Even if we ignore that legacy, in light of the vital

role which public education plays in forming and

transmitting values, why in a case such as this should the

only relevant question be whether presently existing racial

problems are traceable to specific acts of discrimination

which have occurred in the past? 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 twenty years of ameliorative measures. But

let us assume for the purpose of argument that each

generation is, in fact, born cloaked in innocence and pure

of soul. If effects of racism nevertheless appear on our

university campuses, would it not be a paradox, the

height of irony, that our educational institutions could not

attempt to cure them because it is we, not our parents or

92a

grandparents, who are their source?

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.

Strict scrutiny is, however, a process, not a mere

quantum of proof or other mechanical test. In the

education context, it should, in my view, involve asking

the following questions: (1) Does a nucleus of fact exist

which can reasonably be interpreted as evidencing the

effects of racism; (2) Did the officials responsible for

addressing the problem engage in an open and

deliberative decision-making process; (3) Did _ they

articulate the reasons for their conclusion that a problem

requiring correction exists; (4) Did they adopt a narrowly

tailored remedy that has minimal impact upon the rights

and interests of persons not benefitted by the remedy; (5)

Was the decision-making body controlled by members of

a race benefitted by the remedy;*° and (6) Has provision

been made for regular periodic review to determine the

continued necessity and efficacy of the chosen remedy.

In this case the responses to these questions all

support upholding the constitutionality of the Banneker

Program. Whatever their exact cause may be, the poor

89 See Croson, 488 U.S. at 495-96.

AG Shy AR La saa sie selina

93a

reputation of UMCP among African-Americans, the low

enrollment, retention and graduation rates for African-

American students at College Park and continuing racial

tensions on its campus all can reasonably be interpreted

as constituting, at least in part, the effects of racism

(present or past). In deciding to continue the Banneker

Program, UMCP has engaged in a public process in

which all sides were given an opportunity to be heard.

The Decision and Report issued by UMCP fully

articulates the basis for continuing the Program. The

Program is narrowly tailored and has little (if any) impact

upon the rights and interests of students who are not

African-American. African-Americans do not control the

decisionmaking process, and UMCP’s Decision and

Report provides that the Banneker Program is to be

reviewed every three years for the purpose of determining

whether it should be continued.

VIL.

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. The answers

that we give to it today cannot be cast in stone, but must

stand exposed, in all of their fragility, to the tests of time

and experience. 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. This, the University of Maryland

at College Park has done in adopting and resolving to

continue the Banneker Program, and its judgment

94a

withstands the scrutiny to which the Constitution

properly subjects it.

Date: November 18, 1993

J. Frederick Motz

United States District Judge

95a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

DANIEL J. PODBERESKY *

P Civil No.

v. ° JFM-90-1685

WILLIAM E. KIRWAN,

Presidentof the University 22

of Maryland at College Park,

and the University of

Maryland at College Park w

OK OOK OK OK OK OK

For the reasons stated in the opinion entered

herein, it is, this 18th day of November, 1993

ORDERED that

l. Plaintiff's motion for summary judgment is

denied;

2 Defendants’ motion for summary judgment

IS granted; and

a Judgment is entered in favor of defendant

against plaintiff.

J. Frederick Motz

United States District Judge

96a

Daniel J. PODBERESKY,

Plai

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