# Appendix — Kirwan v. Podberesky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1514%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1995 - **Citation:** 514 U.S. 1128 ## Text 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. e 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. ey i 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 la 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 2a 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 3a 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. 4a 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. I The facts and prior proceedings in this case are set Sa 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 6a 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. II 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. Ta 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 8a 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 9a 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. A 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). B 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 5 3 - 4 3 BY : wd 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. IV 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.’ I. 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. I. 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 ee 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 a 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 © Mandel v. HEW, 411 F. Supp. 542 (D. Md. 1976). *? 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 A. 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. q % 4 2 a q 3 g 4 ht NMR Pita i j 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 a 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 a ; Fy 2 a 2 4 2 4 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 B. 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 © Def-Int. Ex. 29 at 2. 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. 62 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 Afric [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1514%3A02. Public record. Not legal advice.