the honorable the judges of the united states court of appeals for the fourth circuit court maryland operates a diverse system of public higher education diverse both in terms of student enrollment and in terms of the institutional options that are available to the system consists of thirteen i's are fully integrated with african american and roman ranging from a little over eleven percent to almost forty percent some like the university of maryland university college and the university of baltimore are actually justice thomas concurrence and forty's that the h b r is to continue this to this day to have a particular appeal to african american students there was testimony in this case about how  many african americans going to an h b o high is a dream come true both for themselves and for their for their children so it's something that has a very strong draw on the african american community then we have schools like you when you see that was created in the one nine hundred forty s after world war two it was never segregated at all it always it mid african american white and students of other races focusing specifically on maryland's h b r as the district court highlighted the state's unflagging commitment to its african americans and the far ranging initiatives yet taken to maximize their access and success you know maryland's public higher highest levels above those for other institutions to the tune of eighty four million dollars over twenty five year period before trial which goes to half a billion dollars in excess funding if you exclude the highly financed flagship institution university of maryland college park this picture bears no resemblance to the type of de facto segregation that the court had dollars and we also know that the remedy is highly unlikely to succeed in boosting white enrollment at the h b eyes because in case after case that has   remedial part of this litigation and when you're creating the remedy was to create new high demand programs at the h b r that means you have to hire new faculty you have to know from these other cases that it doesn't have that effect now you said it that's going back to your argument earlier that it's highly unlikely to be right so what the the defendant's suggested more tartan funding targeted at recruitment in marketing other race scholarships financial aid know if ordered by a court of their race scholarships that seems to be something that all experts agreed would have that effect which you know could bring in  liability was a stamp list if you were to assume single race scholarships violated due process of protection clause what would be your remedy proposal after that of our remedy proposal if you eliminate that would be money for more recruiting and marketing when you already see that when you go to for example b w i airport there are these very large banners  advertising for morgan i mean they are reaching out not just reaching out to the african union the african american community they're reaching out to everyone to have a more diverse and rolnick but we could augment that  other things like that but we know from the from that testimony in this case is that it is the system of higher education i'm all operates so differently from elementary and secondary education elementary and secondary education you have students that are assigned to certain schools by higher authority the school board and then they must  but with higher education you have a system where students are not of sat and they they choose what institution they wish you're going to  made did not find that maryland was channeling students on the basis of race discouraging white students from seeking admission to h b i's what she found was that program duplication has an effect not a channeling effect but says it has an effect on choice and if you have one only one choice and then you have to ok you've got a different choice  more the more importantly she faulted the system for not providing white students with enough of an incentive to attend an h b not that not that the state was discouraging preventing white students from attending to h b i said that's the standard that night uses after fordyce and when you look at ford ice itself it's talking about limiting sprigg substantially restricting the student choice she didn't fall say that maryland was doing that the district court concluded that the state was not giving white students enough of an incentive and that's not what fordyce is about fo separate but equal system unless you had good look at it programs that was the charge of plessy versus ferguson so you it was there for the purpose of separating the race that's what justice thomas points that out specifically in fo e the program to put the type of program duplications that the court is trying to get at is duplications that separates the students on the basis of race the duplication that issue here even if it's traceable in the sense that you had  you had duplications that is not the kind of duplication that the court's trying to get at because you don't have that channeling effect here and you don't have it here for a number of reasons probably principle of which program duplications is the only policy that the court found to be traceable in maryland so all you're doing with program duplication on its own it doesn't have a channel effect instead of giving it to the student you have only one an institution completing education right duplications exists across the country it is it's important in order to meet changing workforce demands it's important in order to give students options so that they don't leave the state if they're dissatisfied with the options that are available so what happens across the country it's an important part of the higher education system it only is a problem when it is being used to separate the students on the recruitment marketing it seems like the state really getting come to the table on the remedy issue for well at l or much if we reversed the district court on the remedy the court have that they would come to the table and participate in finding a new solution this time when it appears from the record that the state wasn't that interested last time well the state was interested in coming up with a solution to this problem the things that they proposed are the things that the experts at all agreed at the trial were effective boosting white in rome so i don't think you have to worry about the state coming to the table if if if a remedy is necessary here but again it's really more about liability in this case that there's no you know fordyce teaches us that racial identifiability by itself is not constitutionally actionable it's not a problem it's the result of three student choice that's ok that's what bassem or holt there you had to for each club's state sponsor sponsor that were one hundred percent black and white and the court up health so there was no constitutional violation there because the state was not channeling the students to the different clubs on the basis of race was just the student's free choice so in this case where we have no question it's not traceable in the sense that we have a current you have a current policy that is drunk that is trying to get at program duplication of guard against and that policy the district court found was constitutionally you happy to hear from two dozens of witnesses and hundreds of exhibits that unnecessary program duplications drives the fact that maryland's h b r is more segregated today than they were in the one thousand seven drives the facts and the absence of drives the fact that one of the eight beyond you and me ends that's a white population more than three times a percentage higher than the other h had a number of questions looking at the evidence seems to lead back and forth between questions of liability questions a remedy so i don't mean to take you out of your side dish but it's sort of hard to see and i may have just missed because as you know is a huge record that it did not appear were addressed that might have some relevance so for instance what there seem to  be a shortage of stem related courses that i would have expected to see in a twenty first century curriculum analysis for core versus non chord you know if that was a looked at as a factor at all well what it w and and as a result that the court had before dr conrad and the deposition of the trades expert the designated doctor make hillary one of the things that we point out in our brief that the state chose not to so for instance in include a scurry culum so there are a number of disciplines were masters degrees are now the intrigue level documents that you need is that a factor that was looked at at all well is that masters program understand that part for ice is almost thirty years old and we're looking at a case that deals with higher end the twenty first century and i would think that there would be some changes that would have occurred that an over time and i believe that the court the trial court took that into effect into account which is kind of a moving target is not as to what is its core under what is african american students and and white students of a complete education because these would seem to be courses that and going to any college would want to take and i i don't understand what the criteria are folk core and non caloric courses it seems to be  necessary for a liberal arts and science education in all courses at the master's and the right graduate level considered non core and therefore unless a program to patient at the trial or level is also trying to rewrite or lines the argument that unnecessary program to patients deprive students of choice was essentially the argument that justice scalia wrote in the senate is argument was that the state patients that between two thousand in two thousand and eight the court specifically found an address in her opinion out that the state seemed to favor the t w i suspect to unique high demand programs in the where do you  well two things about it you know number one the h b i's are part are part of the system and one of the documents at the court focused on was a letter that they wrote complaining that their programs  being systematically duplicated but they did not want to be seen as the object the authors of letters because of concern and i have only a few but i'm just trying to get to this  burden of proving that present day duplication is defective and found liability for the existing duplication even though the program approval process was so what is going to what is the what is the traceable past the traceable policy or i'm sorry in four eyes the supreme court specifically said that the continued existence of all eight of all it institutions is itself a traceable policy the court specifically also said that exist issue was addressed and then in the spring two thousand and five memo by the chinese general's office or its civically warned the state that it was vulnerable legally under the policy dealing with being approved and they're not approving programs over h b are objections and what is wrong with giving the institutions adequate funds and letting them develop programs with our spines in accordance with their mission statements which are getting in the district court saying marilyn was allowing the h b eyes to craft for themselves i mean it seems to me that if you're not going to dismantle stigma white students asians and hispanics for that matter will not go to the h b eyes if they can get the same programs at a t w i in the court found at those programs that this without sound educational justification  rather than a traceable policy because i thought that was the distinction that or die use the use that you that your had to show some kind of there's so much to spew about what core an encore programs are you set up you set up another kind of any quality where an african american student who goes to an that students choose colleges and universities for reasons that don't have anything to do with program d or whatever for example in some instances where you can get more of a scholarship it and some institutions than others you can get a better student loan you can get a lesser to ation other institutions or where your friends go or where your family goes oh what's nearby or whether it's a small college or whether it's school and i just have a real we're going to throw a whole lot of money at something that it it seems to me i'm not sure that that's i play as such an important part in the overall maryland system of education and no one did dispute i have valuable and worth ave are going i'm wondering and their response to what they perceive as student demand rather than what of a special master is trying to engineer you know that the supreme court is taking court decrees and special masters with a great degree of skepticism and i think i just wonder if at the end of this ten year a question and i can't see it and i'm just not sure it's going to do any good your honor the liability trial focus on student choice well the kinds of things affect student home and question about whether work or not that specific question was asked of the state's expert dr back the course and you agree that that an important step in dismantling a dual system higher education consensus of experts in the dr lichtman is not one but the consensus of experts in the field and the acknowledgement of the maryland on officials including the attorney general the chairman of the former chairman of of him our in the district courts factual conclusions and the judge the district court's legal analysis is fully consistent with war nice night and it's also consistent with the two memos by the merrill attorney student bodies of the school will the room of the produce well that the court is not supposed to come up with exact numbers but the idea is that in the about a rank one percent two percent five percent courts been very careful not you don't see percentages in errors and in alabama but the idea is several percent maybe back to that maybe back to where the schools were in hundred seventy five year on you know as what's her record reflect the record does not reflect an exact number your honor because what happened like anything about the likelihood that change will occur and is there any empirical evidence for us so what is the empirical evidence well there's a lot of evidence including empirical evidence i don't want to just limit to that we'll start with the  the experts planets experts did an analysis showing that programs that were unique in high demand particularly out on the eastern shore were all the graduate programs i don't the eastern shore are unique programs or joint programs twenty nine percent of the students attending graduate programs on the eastern shore again all unique or joint programs are white so that gives you a baseline in terms of even to the eastern shore of the overall percentage of white students is thirteen but for the graduate programs it's twenty nine so that's that's a piece of empirical evidence if you look at the programs the state had the which the judge found to be inflated included a lot of things that are not the judge did not order as part of the remedy including the transfer of dozens of programs so the state the education applies to all maryland students you know and it's to sions of higher education what i'm still asking for is at the end of the day if you pursue that remedy where is where is the evidence that makes if it's i'm sure so i saw give you an example in this and we had record evidence of this in the record of tennessee state which in which there was as part of the remedy unique and high program unique in high demand programs going to tennessee state the only h b u h b c u in tennessee today tennessee state white population is twenty four percent of its student body more white students go to that one institution tennessee and all the maryland's institutions combined in terms of the percentage of white students graduate programs forty percent there are programs in tennessee high demand programs for example its physical therapy program where ninety three of the hundred sixty in that particular program are white reserve international master your honor all of the cases had either monitors or monitoring committees the terms specific term special master may may or may not have been used but in all these cases it played out over a period of time where you had somebody usually somebody with some background  education working with the judge to try to come up with a remedy that worked in the remedies played out over time there were there were remedies if you look at some of the history of these cases you have some remedies that are tried during different periods of time for the next ten years of being and you want to act what i'm concerned about is that there are already extensive regulations of higher education from the department of increasingly making it more difficult to run an educational institution you're on you're talking about a constitutional violation here you're talking about equal protection clause you're talking about maryland's failure you just mantle a hope funding formulas and then what they did was hope and it was done on a very very discretionary basis without any kind of neutral criteria or not the beginning in one thousand nine hundred sixty eight and periodically and i'm i'm just wondering why the answer because they have maryland has made it taken important steps to try to eliminate these effects but i'm wondering why the answer isn't to you it doesn't line appropriations rather than a ten year special master cry on which seems to me the real gamble in terms of whether it's going to do anything or whether it's not what is why has not why did not this case settle on appropriation that want to lay out the h b i's the discretion to but let's start with the fact that there is a constant there's a constitutional violation here and that there needs to be a mechanism to fix that con constitutional violation to desegregate and yes funding funding is got to be a component of it to actually fund the programs that are going to desegregate the h b r in the way in the past if you look at what was happening the one nine hundred seventy s h b eyes were headed towards a path of desegregation percentage of the white students of its vi's from much higher because you had programs like the m b a program at morgan and programs at some of the other schools population quickly disintegrated to the point where it's literally half of what it was forty years ago and we've seen many examples and we provided many examples to the core of both the maryland the state being responsive to h b r objections is poor as was demonstrated in the record with respect to in the one nine hundred seventy s the university of baltimore coming into the system with respect and duplicating in the baltimore area and instead they went back on that they allowed you n b c to develop another cohort of programs with young d c getting help from college park actually seeding those programs from the flagship university of the campus it created that over and over and over again the system is actually made decisions that have gone against the h b r was that something that was reflected in the two thousand and five letter from the four h b r presidents it was reflected in a two thousand and sixteen op ed that all for h b r president signed so you've had a series of events and if you go to what if you go to the court opinions the court talks about the series of events where marilyn went down a certain path that ended up in the h b r as not being what they could be today w or other related cases the demographics of those states would perhaps support that here you have a fairly large segment of the population that fits into neither category how are they accounted for let's put it this way your honor ninety eight point six percent of the white students in maryland attend to don't realize over ninety nine percent of the hispanic students maryland attend to w i over ninety nine percent of the asian students in maryland attend as you group all racial categories except blacks  why you can group it however you want you can talk about you could students did not i would still say that under that sort of facts if you have a policy or practice such traceable and that has a segregated effect that that would be a violation this is a circumstance mind is worse that the white students the spanish students asian students they go to the t w i they don't go to the h b c use so in that sense no matter how you group it you have a situation where  are not attracting white students they're not attracting asian students they're not attracting latino students where the state where the state gets its numbers from primary driver of that are foreign students and both this quarter and prior course made clear that you can't use foreign students as a means of saying that you don't have a segregated situation or african american some of them are african american some of them are not but in any event you can see with foreign students them not really sort of being part of the whole issue of segregation and stigma and all these things that all of this comes from the fact that this dual system was set up in affirmative responsibility to dismantle it's different than the typical fourteenth amendment claim we have to we're the burden is nicely in maryland we can just age because it's not historically well ye the student population everybody still knows that distinction and the stigma that came from maryland and never really giving starting off h b i's in the in the situation of disadvantage and one of the things that's unique about maryland is there was a lot of there were report there was report after report after report in maryland going all the way up through after this case was filed in two thousand and eight talking about how the system it had been set up in such a way to disadvantage in talking and and with respect to the particular issue where the court found a violation on a certain program duplication as my colleague mr jones it said documents in the in agreement and acknowledgment in maryland in two thousand that had to deal with this issue its failure to deal with this issue two opinions from the attorney general's office talking about the fact this remained a problem in it on the basis of on necessary program duplication alone well as you know you are iran or there are only been there only a handful of cases that deal with higher ed segregation and only two of them really in the force or for ice era and both of those there were multiple findings of liability so yes this case is not errors and it's not and it's not nice which at multiple just i just i'm not sure i see that in the process you're on or first thing i would say is i can't think of a case where somebody has were defendant violated the constitution in the court said because you've only violated the constitution in one respect there should be no remedy for that if you if you have if you have concerns about the extent of this of witnesses and in our view her opinion is well supported she gives a whole set of reasons as to as to the different as to her the remedial theory the specifics in terms of some of the specifics were not outlined and she explained that a good part of it was that the state engaged in a process of not letting our experts talk to each vi's i think you appreciate your argument i think you gargi just this last question well what i would as you know your honor there is no sir there of the two there have been two host for ice cases in this era area prior to this one in neither case did the core make a finding of liability on just one issue so i can i concede that point but i will say i don't see that as being a weakness i see that as being the difference and what and what and what i would what i would say is if you look at those two cases particularly with respect to unnecessary programs  does this is there ever going to be any indian point it's going to go on and on and on and the state and entire educational system is going to be under court supervision for years and years and years course supervision stretching out for years judge and i know and i know that you're very familiar with the k through twelve de sac area i would say that this is different and i know that some of those desegregation decrees that have been in place since the late one nine hundred sixty s and early one nine hundred seventy s continue this is a this is different maryland number one has not been under court supervision at all ok they have not been under court supervision under this for one day because the judge wanted the appeal to go forward in this case before actually starting down the remedial process so that's the first point second point is she set a limit on this remedy of ten years and yes it's possible that the plaintiffs that the that the plaintiffs can go to the plaintiffs as in any other case can petition the court and ask for a honor is that you've made the point and understandably about how there are ways that marital marilyn can fix this but the fact of the matter is hasn't it's violated the constitution the students a maryland are entitled to a remedy for that students have a choice of some wonderful institutions and what the court what the courts have said in the higher education context is it's not really a choice if what you've done is you've stigmatized h b ice in such a way that you're you are discouraging students from and the mere fact of the idea that that having a program an h b i is not good enough for all students you know i find that to be patently offensive and that's essentially what state is saying is it's ok for us to given them a chance to grow then students would have had the real choice as they did in the one nine hundred seventy s attending h b i's that offer things for students of all races and offer good education for students of all races and what the state is implicitly saying is is that the h b ice can't do that and that's that's that's the that that is the impression that they are leaving everybody check it all against the record thank you your honor  chips on a macro look my best argument in an liability is that fordyce is about school systems that have come into court and said sure we have a de facto segregated system but we have race neutral admissions policies so we've done and not we've done enough fordyce makes crystal clear that that's not enough you can't have policies working in the background the channel students on the basis of raise maryland obviously makes no effort to separate students on the basis of rates it's very diverse student body at the non h b i's in the h b o eyes despite plaintiff's arguments the country are becoming increasingly diverse with other race role and if you want to look at the details of that it's in the record in the m h e m h c data books that sets out foreign students stigmatizing is it is a difficult issue to get into because you mediately start to trying to tease out let me just ask you what is an urban university an urban university is one that i mean the morgans purpose is to be the engine the education engine of bolt or city and it's a purpose that the morgans president testified eloquently about how he embrace their educational engine it's a more city how many unique programs do they have i you know i honestly i don't have that number off the top of my head they have some they have architecture a couple others and about that  i think it's the ideas being architecture is building i mean on it earth that it must be an urban university in order to grant ok i will let you grant doctorates which did it as of ninety ninety four there was only one i don't know what that means it means it's a recognition of the university of baltimore and they are been oriented i'm not sure they have that that's in their mission but how soon is the metropolitan appropriating money for the h b eyes and letting them pursue their own programs as they see fit that's what's already going on on this record we know that the h b o eyes are being sufficiently funded we know that they're not being frustrated in the development of programs the record is clear that they've not been did not need any efforts to develop new high demand unique programs the record also shows that on of the case law in this area i think what the plaintiffs are talking referring to there it's not a formal opinion of the attorney general it's one assistant attorney general's advice given to his agency client and client it was the commission and they invite that person advise the commission that approving the talisman m b a program over the objection over morgan's objection might leave the let me go back one step first when townsend was first developing the program taking morgan asked morgan to partner with them in morgan declined for perfectly fine reasons they just didn't want to do it so they went to u b those two schools together are u b as majority minority housen has i think thirty seven percent nonwhite enrollment there are very diverse institutions so this is not even this kind of this classic example that it's thousand eighty it's a very different demographic world and we know that soon with probably within the next decade maryland's going to be a majority minority state so the the black and white binary dichotomy that you see in the night in the mississippi case really doesn't even apply here and you know let me mention here in just ask you one thing and it's what i think are all free to develop their own potential and their own particular missions where they can do of the most good for the students that they serve each and every and to develop themselves in a manner that is going to be the next educational benefit for many many students in maryland but why do we need a special master in all this why doesn't the more so when compared to the b i's they set their own missions they spend the money how they see fit so it's they have discretion in every step of the way and having a special master receivership over the next ten years doesn't it's not it's not even just another layer of bureaucracy it casts a shadow on all of the institutions within the system who then can't plan for the future in the same way that they so let's start with the fact that i know you have the concern about the special master maryland had an opportunity before litigation was all the supreme court will have its problems with a remedy that honor what i would say is that part of what's happened here is that maryland has age in the series of steps litigation during litigation and during the remedial that there needs to be some level of court oversight whether it's a special master or whether it's an alternative that in your view would be electric own in alternative there needs to be some means of  were you could have you could have set up the h p ice or more independents than they do right now structural independence than they do right now so for example three of the four h b o s don't have their own board their board is a university system of maryland board morgan does have its own board and it gives it gives morgan more will of a measure of independence when you look most of the time it who's publicly objecting to things it's morgan state because structurally they do have more independence then the other then the other schools do if one of the other schools gets out of line gets too aggressive the present against it's really been the let's talk about mission briefly the core interesting lee said that the missions are historically the present day missions are historically linked to the past mission the jury mission but yet it wasn't traceable which is inconsistent with what you see errors and night with respect with with respect to traceability yes h b i's do the first draft of their own mission statements but they go through appro they have to be consistent with the state charter of education they have to be consistent with the state plan so koppen can't just say ok we are going to become the flagship university of maryland they can't just th they can put that on a piece of paper but that's not that's not going to go very far and then and then during mr snyder stime you heard him talk about townson the in the metropolitan university versus morgan being urban university said is these are urban programs in your the urban university and so you know what you have here is and look we can be there are ways to be flexible in terms of remedy but in the the remedy has got to address the constitutional violation and you can expect that maryland's going to do it alone because it hasn't report after report from the state has talked about this problem they entered in a partnership agreement with solved the problem there needs to be some level of oversight and some level of that there needs to be either structural change or and or a good deal of art of the difficulty is in  desegregation through assigning students separate higher education you just don't have that option and it's of incomparably more difficult problem because students following it say his choice works a little bit differently in the higher education setting it's not because as you pointed out students have the ability to go to every school but it's about making making that choice a real choice and we've seen instances like in tennessee where what happened as a result of a decent decree was you had both the programs in the support of those programs that were created at middleto tennessee state and you have it being a school that students of all races are choosing to go to particularly at the graduate level particularly in the medical field and that's what we're looking to do here to to resolve this constitutional violation thank you and i want to thank all of you for your arguments and we'd like to stay on and shake hands with each of the advocates and then we'll take a brief  and evidentiary record read and preparing for this case unsolicited thought which is not a judicial opinion as to smoke commentary is that this is a case that should have settled years ago both parties have unrealistic expectations hands and it would behoove the parties and the people of maryland if you gave it another realistic shot because what you get from the federal courts over many years it takes maybe something that neither party wants to have that's worth what you paid for it which is nothing but that's my observation having gone through thank you very much that's honorable