When a federal judge ordered a remedy for the state of Maryland’s failure to properly invest in its historically black colleges and universities, Kirkland & Ellis partner Mike Jones won a personal and professional victory.
Since 2009, Jones, an alumnus of Dillard University, a New Orleans-based HBCU, and his team had worked on the case, along with the Lawyers’ Committee for Civil Rights Under Law. (The case was filed three years before that.) The plaintiffs, a group of alums from Maryland’s HBCUs, alleged the state maintained a vestige of the era of racial segregation by duplicating the HBCUs’ academic programs at traditionally majority white schools. That duplication, they said, diverted students of every race away from the HBCUs.
In 2013, after a trial over the state’s liability, U.S. District Judge Catherine Blake of the District of Maryland agreed with the plaintiffs. The judge ordered mediation, asking the parties to come to an agreement on a remedy. But when they couldn’t, there was another six-week trial this year on what, if any, remedy should be ordered. Jones and his team primarily argued that the most immediate way to fix the issue would be to transfer programs to the HBCUs from traditionally white institutions (TWIs). But they acknowledged this could be disruptive, and they also proposed a secondary option of creating new programs at the HBCUs.
On Nov. 9, Blake again sided with the plaintiffs. She ordered the appointment of a special master to oversee the creation of unique academic programs at the state’s four HBCUs, and barred the state from any further unlawful duplication of programs.
The National Law Journal sat down with Jones in November to discuss what the historic ruling will mean for students in Maryland. The interview has been edited for length and clarity.
National Law Journal: This was a long and complex case that spanned nearly 10 years. What was one of the most interesting aspects of working on a case like this?
Mike Jones: One of the most fascinating parts of the case to me was, in the liability phase, getting Maryland’s historical documents and then coming to understand how higher education developed in the state. Maryland was formerly a slave state, even though it did not join the Confederacy. Maryland had some of the first, and some of the most restrictive, Jim Crow laws. But unlike some states, Maryland actually documented what they were doing in higher education. They appointed a number of blue ribbon panels throughout the years, which were really remarkably consistent in pointing out to the state that they were: a) doing the wrong things and b) doing things that didn’t make sense. So one of the first documents we found, that we cited to the court, was a historical document from the 1930s that said it was Maryland’s official policy to maintain the HBCUs as inferior in every aspect of their operation. They made no pretext of separate but equal.
NLJ: The most recent trial in this case focused on how to remedy this chronic discrimination. What did the state argue, and what was the plaintiffs’ position?
Jones: The state’s position was that even though there was a constitutional violation, there did not need to be any remedy at all and should not be any remedy because, they argued, it would be too expensive and there really was no remedy that would work. But at the last minute they decided to offer not any new academic programs, which was the heart of our remedial proposal, but to offer funding for scholarships, financial aid and marketing just based on the current program offerings at HBCUs. Our position was that funding for scholarships, marketing and financial aid would be good, but only if it were attached to funding for academic programs. Our remedial theory was that the proper remedy for the constitutional violation was to equip the HBCUs with the kind of signature, unique programs that can give them a brand and reputation separate and apart from just being a historical black college. Because programs, that’s really what attracts students, and it can attract funding and research dollars.
NLJ: Creating the programs wasn’t your first choice proposal, but the judge’s order is still based off your secondary option. What will this mean for the students?
Jones: What I think it will do for the students [of Maryland HBCUs] is that they will get some new, very attractive programs. In terms of the universities, I think it will help them with recruiting. I think it will help them with fundraising. I think it will put them in a position to have business partnerships and partnerships with government agencies. One of the reasons the TWIs were opposed to transfers was, they were arguing that some of the programs they developed involved these great partnerships with business, government and other related funders that would be disrupted. We believed the HBCUs deserve similar kinds of programs and benefits. We also believe they will attract students regardless of race to the HBCUs. So in addition to African-American students, there will be more white students and Asian students and Latino students and all kinds of students.
Also, the state was vehement about how harmful the remedy was going to be, and I said to the judge, you should remember the state was equally opposed to the Brown v. Board of Education decision. Even after Brown, the state dragged their feet but then they came to embrace it. In this case, I predicted to the court that years down the road, the state will ultimately come to embrace this when they see themselves with HBCUs that are the envy of the nation. The court said, the remedy should create the kind of schools that everybody in Maryland should be proud of. That’s where I think, years down the road, this will be. I think it ultimately will be good not just for the schools but for the state.
NLJ: What was the most challenging aspect of this litigation?
Jones: I’m a civil litigator and I do all kinds of cases, but one of the things that is remarkable to me about the civil rights laws is how difficult they make it for plaintiffs to prevail. A first element principle in law school is the wrongdoer has to put the victim in the position they would have been in before the wrongdoing. As many plaintiffs’ lawyers say in trial, if you have a mess, you have to clean it up. The civil rights laws are different than that. Even though the state could admit that they had historically underfunded the HBCUs, and that they had not completely made up for it, under the civil rights laws, they aren’t required to. That’s unfortunate, but it’s a fact. So, what we argued is that under the Supreme Court’s 1992 Fordice [v. United States] decision, a formerly segregated state has to eliminate policies and practices that are traceable to the de jure era and have a segregated effect. And unnecessary program duplication was the vestige of that era that the judge agreed with us on. Then, once you have a vestige, you have to have a remedy. So the most challenging part was just working within the structures of civil rights law.
NLJ: Had you done any education-related litigation prior to this case?
Jones: I had not done it as litigation, but I’m the chairman of my alma mater, Dillard University, which is an HBCU. And I’d been on the board before I was the chairman. So I knew a bit about HBCUs. I thoroughly enjoyed this. I consider it one of the highlights of my litigation career. I’ve had a lot of high-profile cases, but this is the only case that my three kids talk about and are interested in. They get excited about it. I consider it a legacy case and it’s been a lot of fun.