Fighting For Equal Funding

Sara Partridge, Ph.D., Payne Center Research Fellow

At the Inaugural Convening of the N. Joyce Payne Center for Social Justice on April 28, 2022, leaders and advocates closely involved with recent efforts to close the funding gap between Historically Black Colleges and Universities (HBCUs) and Predominantly White Institutions (PWIs) came together to share strategies to replicate important recent successes from Maryland and Tennessee. Representative Harold M. Love, Jr. of the Tennessee General Assembly, Pace McConkie of the Robert M. Bell Center for Civil Rights at Morgan State University, and former Executive Director of the White House Initiative on HBCUs Dr. Meldon Hollis spoke on a panel titled “Education Equity: Fighting for Equal Funding for HBCUs.” In this discussion, they described the prolonged political and legal struggles that eventually led to increased state appropriations that recognized and began to remedy long-standing institutional inequalities.

In Tennessee, the appropriation of $318 million for Tennessee State University (TSU) in the 2022-2023 state budget is a victory that follows a multi-generational struggle. Representative Love’s own father, Harold M. Love, Sr., held the same seat representing Tennessee’s 54th District from 1968 to 1994. Rep. Love recalled finding a legislative report authored by his father in 1970 that found that, of the $4.5 million given to the state for its two land grant universities, only $55,000 went to TSU, an HBCU. The remainder—almost its entirety—went to the University of Tennessee (UTN), a PWI.

When the 2016 state budget—which did not include full and equal matching funds for TSU—came up for a vote, Rep. Love began reading from this report, beginning at page one, in order to filibuster the state budget. He got about halfway through reading the report before the chair of the finance committee agreed to include the full match for TSU that year.¹

The major initiative, which ultimately led to the $318 million state appropriation to TSU—the most substantive remedy for an HBCU yet—began with the establishment of a committee to formally audit the state appropriations to TSU going back to 1957. The Joint Land Grant Funding Committee found that TSU had been shortchanged a grand total of $544 million over those years. In his remarks, Rep. Love underlined the accumulating effects of this underfunding, which are hard to fully account for: the deferred maintenance on school buildings which makes it harder to attract students, faculty, and research funding; the loss of economic growth to the local communities; the returns on a larger endowment that might have been seen.

Once armed with the data that showed the extent to which the state had discriminated against its land grant HBCU, Rep. Love turned the conversation toward infrastructure. He and his colleagues argued that TSU, as a state institution, required long-overdue maintenance and investment. “These are state buildings; these are state lands; that’s our [taxpayer] property,” Rep. Love explained. “And we’re the current stewards.” Dr. Love and Dr. Glenda Baskin Glover, President of TSU, then showed the legislature “every building that was in disrepair.” They commissioned a report on deferred maintenance on TSU’s campus and found $377 million of repairs and investment that were desperately needed. This became the foundation for the 2022-2023 state budget appropriation of $318 million to TSU.

With this much-needed and long-deferred investment, TSU will repair or replace every building on campus over a five year period, with additional funds for a new engineering building, a new library, a new agricultural building, and new residence halls. These new facilities and resources will allow TSU to attract more students, deliver better academic programs, and increase their research capacity.

In Maryland, the fight for funding parity between land grant HBCUs and PWIs had elements of legislative cooperation, like in Tennessee, as well as civil rights litigation against the state. The unique challenge that land grant institutions face in advocating for their full arrearage is that, as public, state-run institutions, they are “instrumentalities” of the state, akin to a state agency. David K. Sheppard, Chief Legal Officer and Chief of Staff of the Thurgood Marshall College Fund (TMCF), later in the session, drew the comparison to a land grant HBCU bringing legal action against the state as “the left arm suing the body.” The President or Chancellor of a state university, furthermore, also effectively serves under the direction of the governor, and the relationship is akin to one of employee and supervisor. A state university president who initiates a hostile relationship to state leaders is not likely to maintain their role for long.²

In the 2006 Maryland case under discussion, The Coalition for Equity and Excellence in Maryland Higher Education, Inc., et al v. Maryland Higher Education Commission et al., a coalition of third parties brought the suit against the state of Maryland on behalf of its four public HBCUs in federal court (the United States District Court, District of Maryland). This coalition of plaintiffs was formed primarily by students, alumni, faculty, and other supporters from the four HBCUs (Morgan State University, Coppin State University, Bowie State University, and the University of Maryland Eastern Shore). This approach, therefore, demonstrates how third parties and coalitions can bring forth litigation on behalf of HBCUs and circumvent the issue of a public university’s status as an instrumentality of the state. Dr. Hollis underlined the importance of HBCU alumni, in particular, in pressuring the state to adequately support its HBCUs.

“The suit was filed on the grounds, or on the assertion that the state of Maryland had failed to fully dismantle its de jure segregated system of higher education,” Mr. McConkie explained, “and that policies and practices—which 1. fostered discrimination on the basis of race, and 2. perpetuate the inequities of segregation by race that were traceable to the form of de jure system of segregation—were still in place.”

There were elements of this argument upon which the coalition of plaintiffs prevailed and others upon which it did not. For example, even though the plaintiffs successfully showed a $2.1 billion funding gap over time based on state and university records, the judge did not ultimately find liability for the state on this issue because of how state budgets, finances, and university missions have changed over time. The court did not find this funding deficit, therefore, to be directly traceable to the era of de jure segregation.

“The court did find liability,” Mr. McConkie explains, “on the way that the state approves academic programs and assigns academic programs towards different campuses across the state, and the practice of unnecessarily duplicating programs at the HBIs [historically Black institutions] at geographically proximate PWIs.” Such a practice would “ draw students… and draw state resources to traditionally white campuses, all at the expense of the HBIs.” At the time of the trial, PWIs had 122 high-demand programs that were unique to their institutions, while the HBCUs had only 11. This gap widened from 172 to 11 over the first three years of the trial.

This practice, the court found, maintained a discriminatory, segregated system of higher education that was in fact traceable to the de jure era of Jim Crow segregation. The court’s framework for a remedy required “an immediate end to the practice of unnecessary program duplication,” the “enhancement of existing academic programs at HBIs,” and “an influx of new, high-demand programs at the HBIs that would remain unique to the HBIs,” McConkie explained. And, furthermore, “it would require whatever faculty, staffing, funding, lab, facilities, and resources necessary to make those programs viable and successful,” including marketing and financial aid.

The parties came to an impasse, however, at the remedial phase of the trial. The court ordered the parties to negotiate amongst themselves and come to a workable settlement for how this ruling would be implemented. The parties were unable to do so, and the state appealed both the liability ruling and the remedial order in the winter of 2018-2019. The court responded in an unusual fashion: it issued a one-page memorandum further encouraging the parties to work on a settlement with a court-appointed mediator. They once again failed to reach an agreement, however.

At this point, the struggle moved from the legal to the political arena. The Legislative Black Caucus of Maryland became involved and began to advocate for a legislative solution. Under the leadership of Adrienne Jones, the first African-American woman Speaker of the House in Maryland, the state’s experts worked together with the coalition to reach a settlement. Although the state estimated that it would cost between $1.1 and $1.6 billion dollars to fully implement the court’s remedial framework, the two sides agreed that a $577 million funding package, to be paid out over the course of ten years, would help remedy the history of discriminatory program duplication that the court had ruled upon. While the state legislature passed this funding package in 2020, Governor Hogan vetoed it. Finally, in 2021, the legislature once again passed it, and Governor Hogan signed it, making it law.

This demonstrates the legal complexity and political challenges that can forestall large-scale efforts to address the historical underfunding of HBCUs. It took a team of civil rights attorneys, a coalition of advocates, a public awareness campaign, and the commitment of state legislators to ultimately break through the logjam of stalled mediation and political opposition over the course of 15 years. Now that implementation will begin, it may face its own challenges, and the question of how ongoing funding parity will be achieved for Maryland HBCUs beyond the timeframe of the ten-year settlement payout remains to be seen.

Dr. Hollis concluded the discussion by noting that the federal government, as well, has a long way to go in fulfilling its commitment to HBCUs. Even as the White House Initiative on HBCUs seeks to facilitate more R&D funding to HBCUs, the implementation of this promise lags. “My point is, it is not just the state government,” he says. “You have to look for the federal agencies also to follow up on the promises that they make.” At all levels of government, “you have to look for accountability” to ensure that HBCUs are getting the just and equal public support to which they are entitled, he argued.

This rich panel discussion between Rep. Love, Mr. McConkie, and Dr. Hollis addressed these issues and many other related ones in depth. Watch the full discussion to learn more about the historical roots of and the ongoing struggle for HBCU funding equity.