 HPC judges radio welcome back to another in-depth conversation with Distinguished leaders and voices from the historically black college University community today is a very very special guest to me personally He is the brother who is the lead attorney and one of the distinguished legal voices in our country Headlining a ongoing lawsuit between stakeholders of Maryland's for historically black colleges against the state of Maryland on the subject of Program duplication and other matters. He is Michael Jones a dealer University alum chair of that distinguished schools board and again here to talk with us today exclusively about the case and Chairman Jones first I appreciate your time. It's an honor to talk with you for the first time in this in this platform You were among three recent authors of an editorial in the Baltimore Sun That called on Maryland governor Larry Hogan To do right by the HBC use and to honor a legislative remedy to this law this lawsuit In excess of $500 million to end more than you know 15 years of litigation What prompted you guys to write this letter? Especially given the the period that we're in where so much cost is attached to a pandemic Why now and why that particular position on the HBC is being supported in this way Well, Jared, first of all, thank you for having me on and thank you for that question So let me just get right to the the timing of it as you know after the Potential of a televised execution of George Floyd There's been a cascading demand for racial justice and and really a racial Awakening for many in the country and in that context the lieutenant governor of Maryland Boyd Rutherford was interviewed in an article in the Washington Post and he cited to These events around in George Floyd and said that quote Turning point in America and it's time to address all issues of racism and inequality and all American institutions and in that Have in that context We've been said well you're going to make that statement the best place to start is right in your own backyard With respect to the treatment of the four historically black colleges and universities and the 14-year lawsuit Dealing with academic disparity that the judge said were worse than Mississippi of the 1970s so that was that was the context in terms of the The the economic context of the of the recession We also make the point that this is since the HBC news are already under resourced this and COVID-19 has a disproportionate impact on black families such as those at the HBC use This is precisely the time to fix this remedy rather than using the COVID-19 as an excuse to do nothing. We also point out that There is no Recession exception to limiting the constitutional violation, right? Mississippi for example Started their settlement payments, which are larger than those in Maryland in the recession of 2000 and continue them through the great recession of 2008 2009 So this idea of they can't do it because of the recession is really just an excuse Especially when you consider as we pointed out in the letter The governor allowed millions to go towards expanding thoroughbred racing in the state of Maryland Let's talk about the legislative part of this because it seems to me that initially this this would have appeared to be a veto proof agreement because of almost unanimous passage in both houses of Maryland legislature That you know Hogan could politically say I'm not signing it or you know, I you know I override it, but it was veto proof So do you think that the pressure is is appropriate on the governor? Or should it be shifted to those members who almost unanimously passed this legislation to say no Hogan? You're gonna back down on this one Well, in fact both because the the last sentence of the the article was to say to the legislature They should hold firm and override the veto the challenge is that Because of the the corona virus the legislature had planned to have a special session in May But they cancel that special session and they are still trying to assess When and how they can reconvene To to vote to override this veto as well as some of the others So that it remains to be seen whether they will be able to come back in special session Or whether this will have to wait until the January When they are scheduled to come back in a regular session. So you're right that the pressure Is on the legislators Mars point of view but also on the governor and the lieutenant governor in particular who? Is indicating that he's planning to run for governor in 2022 So for the the schools need the money as soon as they can get it frankly So if if the governor would would reconsider and enter into a settlement on the terms of the legislation We can do that before January Otherwise we may well have to wait until the session starts in January if the legislature does not come back in special Session before that. Do you think that's part of the play just to kick it down the road? I mean because honestly, this is a this is a case that started two administrations ago under governor Ehrlich proceeded to Governor O'Malley and now rest with Hogan and Every administration has found a way not to support the HBCU's at least on this on the subject of this litigation Do you think this is just a matter of him running out the clock? Which seems absurd because he has so many years left in his tenure, but do you think that this is part of the play? Well, that that's the concern we have but we weigh that again, you know, the led the Legislative process, you know is slow the judicial process is also very slow. So even if we if the courts decided the case and and went back to the district court to appoint a special master and and to decide the specific programs and and the specific dollar amount that Process itself could take a year or more So the legislative process and a settlement is the faster approach If we can get Maryland to do the right thing Let's talk about that court part of it And I do want to get to the background of the case itself for those who may not familiar because the thing about this case is it's it's a landmark case But not too many including in the HBCU community know about it and know about the details But on the subject of this The remedy coming from the legislative body and not the court You know, I've heard in the circles and being fortunate to be a Morgan grad in in Maryland That we didn't we didn't want this to go to the Supreme Court or have a chance to go to the Supreme Court is Could you confirm that that was a consideration for your team? to try to You know contextualize the argument and say well, let's let's get this settled now Because we're not sure what the chances may be or what the what the culture may be if it were to advance to the highest court First of all that as you know Review in the Supreme Court is is entirely discretionary right you'd have to file a petition for cert And frankly our analysis is that it is unlikely that the Supreme Court would take this case up because frankly There are not it's not like you have three or four other cases like this that are in the courts and the courts have decided There's a split in the circuit. So the court Supreme Court needs to resolve it one way or the other That's that's a part of our analysis another part of our analysis Also is that if we win in the fourth circuit, which we expect to do frankly It's it's hard to see that a conservative Supreme Court Would be eager to To give more Maryland a break frankly Especially, you know, I don't know what the Justice Department position on this would be but I can also envision given the Antipathy between Trump and President Trump and Governor Hogan that the Justice Department wouldn't be eager to weigh in on Maryland side either So I think in terms of As on the legal side, you know what could happen is the fourth circuit Could rule and then either side could ask for Rehearing on bank by the full Court of the fourth circuit and that could take a while as well But I really don't I our team is not persuaded that this is a case that the Supreme Court would take up Let's talk about the case itself. So Maryland is a continuation of stuff like, you know Ayers versus United States at night versus Alabama in Tennessee on the subject of UT Nashville None of the HBCU communities or HBCU staples have ever lost a case like this or at least lost outright on the subject of Improper funding or program duplication With that record, why do you think it takes so how could you explain it to layman like me? Why it took so long to get here if every other case which preceded it seemed to say you're right You got to stop treating these black colleges so poorly Well a couple of things one and you see every other case. There only been I think three cases, right? So it's not like they're a hundred or fifty right So the three cases and what's different about this case one of the ways that this case is different This is the only case that's ever been brought Entirely by private litigants in Mississippi and in Louisiana. You have the Justice Department that got involved and you would really have to talk to The Justice Department people under the past three administrations as to why they did not get involved in the case We had meetings with with them So that Part of it is is is a difference that it's the Justice Department is at least up until to this point Has not been involved in the case the second is that Each case is factually different because the courts look at like what are the current policies and practices in the Jurisdiction and whether they are traceable to the de jure era and whether that has you know Segregated effects of the legal is illegal standard. So in Maryland it did enter into an agreement with the Office of Civil Rights in 2000 at the end of the Clinton Administration and it made certain promises as to what it was going to do some of which it in fact did but some of which It didn't do so that was a way that it also distinguished itself from the from the other cases and so we had a the case went to trial in 2012 just in terms of the timeline with the trial in 2012 a Six-week trial and the district court issued its opinion a year later in 2013 The district court ordered the parties to mediation again, which was I believe our Second mediation and those mediations lasted a very long time So the court after the mediation failed the court held another trial in 2017 And so that trial lasted Seven weeks and after that trial the parties were ordered again to mediation And and that mediation was unsuccessful. We then went to briefing in the four circuits the four circuit after oral argument sent us back down for The mediation and those mediation fail and so one of the reasons why I decided that we should Engage the legislature is that what was happening is the mediation itself is confidential So essentially the governor and his representatives were saying one thing in the mediation and they were saying another thing Publicly leading to the legislature. So we decided let's just bring it out in the open Let's get the legislators involved, which is one of the things that the Four circuit judges that actually suggested that the media the the legislature should get involved to settle the case So let me just say that you know, this has been 14 years But the Mississippi case was actually longer than that in terms of getting getting it resolved it went up to the You know to the higher court and back down to the district court and one of the reasons why these you know these things take so long frankly is that We whenever you are looking to upset the status quo and try to change the Hierarchy of higher ed institutions, you know, that's not anything that the state is interested in doing or willing to do You know the truth is they should because it's not like you were talking about We want five hundred million dollars to go to Private individuals these are state schools, right? So the money is going to be invested in state schools And it will be ultimately in the court to get this it'll be ultimately for the benefit of of the state of everybody For everybody, but but if you think about it If if the HBC use all of a sudden a more attractive to certain extent, that's the threat That's really traditionally white institutions. Let's let's talk a little bit. I'm sorry. I didn't get you up Well, because you know one of the things that was was pretty clear in the trial Was that all of the presidents of the traditionally white institutions testified that? They don't consider the HBC use as recruiting peers to them. They're not recruiting competition, right? This could help change that that's right And and then that's the point I wanted to hit it on because at the core of the argument of you guys argument was you know The state has created hundreds of unique programs that predominantly white institutions in comparison to at the time about you know just over 10 at HBC use and that those attractive and unique programs is what has has shaped enrollment trends and has shaped Racial demographics at these schools. So if that if that is at the core of it Do you do you think that this this settlement if Hogan was to say all right fine? You got it You got it tomorrow that that resolves it or is this a foundation for larger conversations about what? Comparability and competitiveness look like for HBC use Well, it's a starting point the the settlement agreement and the legislation as well That's out. What the funds are going to be used for and and the first and foremost establishing of academic programs and as a judge ordered to give those programs a chance of succeeding by providing funds for marketing scholarships and and financial aid in terms of Comparability and competitiveness and this is the conversation that I have with the client very often to talk about the Unfortunate limitations of the civil rights law if you think about it the same Forces that created the inequities Largely shaped what the laws are and the civil rights laws don't like anything that sounds like smells like You know looks like reparations So if you have you have to do you have to frame the case in a different way As Marilyn put it if the case was just about past discrimination You know we wouldn't have to have a trial because they admit to past discrimination. They admit that publicly in public documents for public consumption and political appeasement they have said that they would remedy past discrimination But in court they rightly point out that they have no legal obligation Simply to remedy past discrimination you have to jump through these groups of forties of pointing to Current policies that are traceable to the de jure era that have segregated effects Which is you know, it's quite a hurdle to have to jump through whereas in Other aspects of the law, you know, I do a lot of Corporate defense work and one of the things that plaintiffs lawyers like to say which is is You know, it is well known that if you make a mess you have to clean it up You can't pollute you can't pollute a river and walk away and saying okay from now on I'm going to be more careful The law doesn't contemplate that but in this context the law contemplates that as long as you Go forward and you change your policies You don't have to clean up the mess that you make unless the lawyers can tie it to a Policy that's traceable to the de jure era and that has segregated effects, which you guys successfully did and Correct. Yes. It And just one more question the case itself We know that the value of the students and the alumni on being aware and being vocal about the case But one of the interesting wildcars in the case has been the presidents and here in Maryland at our four HBCUs those positions with the exception of the leadership at Morgan State have turned over a Few times at each of the other institutions Since the since the case was was first file What what is the role of presidents in advising your team? in responding to Legal inquiry about the merits of the case and what should be done Well, the plaintiffs in the case or is the coalition for equity and excellence in higher education, which is made up of students and alums students along faculty members and and so the schools themselves are not plaintiffs in fact the schools are not represented by us the schools are represented by the state of Maryland, right? And so because of that, you know, one of the things that the state did was to Refuse to allow the presidents to meet with us to help craft the remedy You know, there was a time when we were focusing on trying to identify the specific academic Program that would go at each of the schools But the state made that very difficult as I said by refusing to let the president meet with us and And and by not giving the president accurate information as to what But they were supposed to be doing and crafting their own remedy. I mean the truth is It's a conflict of interest because the state represents both the HBC use and the traditional white institutions that have differing interest So the answer is that we have been able to talk with the president only really in the context of the mediation in the presence of the Of the of the state we don't have direct communications with the president because that's not allowed Let's talk about you personally you're an HBC you graduate You're a partner at an influential firm When this case first came to your attention What was your excitement level interest level and and did you recognize that if I take this on? I'm going to be a part of of a lineage of great civil rights Litigation and action Well, that's thank you for that question of this here is the context this tape came to me in 2009 I was on the Board member of the Lawyers Committee for Civil Rights the Lawyers Committee for Civil Rights got involved in the case And they were looking for a law firm to to handle it and they knew that I was A graduate of an HBC you so approached me about it And I was I was interested I was intrigued by it And when I started looking at the documents and and understanding the case better I Really and truly couldn't believe it was outraged because I always thought about you know as many people do you think about Maryland as a blue state Kind of moves lose track of the fact that it was a slave state. In fact, some of the most prominent Historical figures from Maryland were folks who were had escaped slavery. You know Frederick Douglas and Harriet Tubman and we also knew that That that Thurgood Marshall was from Maryland But Thurgood Marshall had actually sued the state over its its segregation policies Learning that Maryland had some of the earliest and most restrictive segregation laws in the country, you know, frankly So as I looked at the documents It was also clear to me that one of the things that you know had been going on We talked earlier about the politics and you mentioned the different Administrations that have kind of comment on in that the politically the Various gubernatorial administrations had been Pointing the fingers at each other, you know Ehrlich was in office. He vetoed a bill that was passed by the legislature that would have protected the schools from unnecessary program duplication that O'Malley got involved became governor. We negotiated with him That went nowhere because he was pointing the finger at Ehrlich that he was doing more than Ehrlich did and when Hogan got in It was the same thing. He was pointing the finger Ehrlich and you know He did more than O'Malley did He did more than O'Malley did and and frankly I think though publicly they were saying Things that were palatable to folks who weren't in court in hearing the arguments that they were making in how Essentially, they were denigrating the schools As saying that you know, it really isn't worth, you know making this kind of investment, you know in them, right? So I was you know, wasn't have been you know, very excited about the case and Do as you Indicated see it as the continuation of the you know, the great civil rights work by Thurgood Marshall and others You've been a part of it for 11 years The case is in excess of 15 years old Who knows how much longer we'll be without a legislative remedy At what point do you look at it at yourself personally and the plaintiffs who are involved, you know My president earl is Richardson from Morgan State president emeritus and say, you know what I want this to be done Because these brothers and sisters who waited all this time Deserve to see a finish to what they started because we can't you know 20 years You know Lord haven't forbid that someone won't be here You know, but is that is that a factor for you that you look at so many people who are involved in so many people are So hopeful about this and say we got to get this done so they can see this take place Well, it in let's look at it in this way We've caught we could get it done Today could have gotten it done You know a month ago six months ago if we had been willing to accept the Governors take it or leave it offer which is two hundred million dollars Both we and the and the plaintiffs the lawyers and the the students and the faculty and alums Recognize that two hundred million dollars divided by four schools It's fifty eight dollars and that's not really going to that's not going to make a difference Over ten over ten years at that and you are over so much more eloquent than those of us who said get the Over ten years that it's not going to be it's not going to be significant So the issue is you know, do you throw in the towel essentially? And I think a part of their strategy was thinking that Essentially we would throw in the towel and you know, we haven't so far and and and don't plan to and so the issue is at this point the only At least as we see it the only alternative is to keep fighting, you know in that strategy, you know has to be a strategy of What I call, you know litigation which which we are doing In agitation and having people right to the the legislators right to the to the governor and and when circumstances allow Have other rallies as we as we've had in the past Really to put pressure on the on on the people who are making the decisions And then the final question again, um, you honor us for sure with your time and your insight today But the final question is So many states Unbeknownst to a lot of folks in the HVC community have looked at this case This is a this is a litmus for things that they'll be able to do In their respective states on the question of program duplication uneven resources Willful direction of racial demographics from different school to school Pennsylvania South Carolina are two two States that I know in recent years that have cited the Maryland case to say, you know If y'all don't act right here, we can do what they did in Maryland um, do do you expect That even when this is done even when this is settled That you'll still be getting calls from states all over the country saying come teach us On how on how you did this because the same thing is happening here You know, I actually do expect uh that to be the case. I also dare expect that um People will be looking at Lawyers will be looking at and we ourselves are thinking about A wide range of areas in which HBCUs are discriminated against you may have seen articles that talk about how HBCUs have to pay more on the bond or bond bond Yeah, even when you control for credit worthiness HBCU students Have to pay more for higher interest rates for loans and you know all a number of of Areas where HBCU students HBCUs black people Uh have to pay more pay higher property taxes So I I think that uh, especially in this time of a racial racial awakening Uh, I I think these issues are going to come under a short focus Just as we you know with renaming Yeah, pancake mixes and football teams and I I think that a a reexamination of so much so many of the things that Frankly, we have just accepted and taken for granted Um, I think it's going to be a new day But that doesn't mean it's going to be easy. You know, we're going to have to just as we're doing in this case in Maryland You know, we've got to roll up our seas and put our um Shoulder to the to the wheel and put the investment and time and resources to uh to make change happen