Coalition for Equity & Excellence v. Maryland Higher Education Commission (977 F. Supp. 2d 507, 2013)

United States District Court for the District of Maryland 2013-10-07

Citations

Full opinion text

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

I. INTRODUCTION

This action arises under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs The Coalition for Equity and Excellence in Maryland Higher Education and named individuals associated with the organization (collectively, “the Coalition”) allege that defendants State of Maryland, the Maryland Higher Education Commission (“MHEC”), and its officers in their official capacities (collectively, “the State”) have failed to desegregate Maryland’s system of higher education as required by federal law under the framework articulated in United States v. Fordice, 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). The parties presented evidence during a six-week bench trial in January 2012 and subsequently submitted proposed findings and conclusions. The court held oral argument in October 2012. Under Fed.R.Civ.P. 52(a), the court makes the following findings of fact and conclusions of law.

TABLE OF CONTENTS

I. INTRODUCTION......................................................511

II. PARTIES .............................................................512

III. BACKGROUND........................................................513

A. Maryland’s Higher Education System.................................513

B. De Jure Era Segregation in Maryland Higher Education ................513

C. OCR Notification and Initial Plans (1969-2000).........................516

D. The 2000 OCR Partnership Agreement................................518

E. The 2009 Maryland State Plan........................................518

F. The Coalition’s Suit.................................................519

IV. JUSTICIABILITY .....................................................519

V. MARYLAND’S HBIs ARE RACIALLY IDENTIFIABLE ..................521

VI. MARYLAND HAS ELIMINATED SOME BUT NOT ALL TRACEABLE DE JURE ERA POLICIES AND PRACTICES AS REQUIRED BY FORDICE........................................................522

A. Mission Setting.....................................................524

1. Formal Mission Statements or Designations........................524

2. “Mission” as Program ...........................................525

3. TWI “Mission” Expansion........................................527

4. The “Dual Mission” of the HBIs ..................................527

B. Operational Funding................................................529

1. Maryland’s Funding Formula.....................................530

2. HBI Funding Today.............................................532

3. Other Allegedly Traceable Funding Policies and Practices............533

C. Unnecessary Program Duplication....................................535

1. Current Unnecessary Duplication.................................535

2. Traceability of Unnecessary Duplication............................537

3. The State’s Purported Efforts to Eliminate this Practice Have Failed.......................................................538

D. Segregative Effects.................................................540

E. Purported Educational Justifications..................................542

VII. REMEDIES...........................................................544

VIII. CONCLUSION ........................................................544

I. INTRODUCTION

As the parties involved in this long-running litigation agree, Maryland had a shameful history of de jure segregation throughout much of the past century. Public higher education opportunities for African Americans were either non-existent or decidedly inferior to the opportunities afforded to white citizens. Most of that history, briefly summarized below, is neither disputed nor excused by the State in this case.

It should also not be disputed that the State has made great progress in recognizing and attempting to rectify those wrongs. Whether that progress is sufficient to satisfy constitutional requirements, that is, whether there exist current policies or practices attributable to the State which are traceable to the de jure era and have continuing segregative effects, has been the subject not only of this litigation but of much debate among the academic and governmental communities, the general public, and the media. There are sincerely held beliefs on all aspects of this very difficult debate, which cannot be satisfactorily resolved by one lawsuit, and one judicial opinion. I have considered the testimony, arguments, and evidence presented by the excellent and well-prepared counsel who appeared before me, and applied the law established by the Supreme Court in Fordice. I find the plaintiffs have prevailed in establishing current policies and practices of unnecessary program duplication that continue to have segregative effects as to which the State has not established sound educational justification. Remedies will be required. The plaintiffs have not, however, made that showing as to the current operational funding policies and practices put in place by the State.

II. PARTIES

Plaintiff The Coalition for Equity and Excellence in Maryland Higher Education, Inc., is an organization that was founded in 2006 to support Maryland’s historically black institutions of higher education (“HBIs”) and promote equity between the HBIs and Maryland’s traditionally white institutions (“TWIs”). (1/17/12 AM Trial Tr. 100 (Burton).) Members of the Coalition include current and former students of Maryland’s HBIs. (1/17/12 PM Trial Tr. 3 (Burton).) Plaintiff Muriel Thompson is currently a doctoral candidate at Morgan State University, a Maryland HBI. (1/3/12 PM Trial Tr. 5 (M. Thompson).) Plaintiff David Burton is an alumnus of Morgan State and founder of the Coalition. (1/17/12 AM Trial Tr. 94, 100 (Burton).) Plaintiffs Chris Heidelberg and Anthony Robinson are also alumni of Morgan State. (1/9/12 PM Trial Tr. 59 (Heidelberg); 1/12/12 AM Trial Tr. 28 (Robinson).) Plaintiff Kelly Thompson is an alumna of Coppin State University, a Maryland HBI. Plaintiff Damien Montgomery was a student at Bowie State University, a Maryland HBI, when this lawsuit was filed. Plaintiff Rahsaan Simon was a student at Morgan State when this lawsuit was filed. Plaintiff Jomari Smith is Muriel Thompson’s son and was a prospective candidate for a Maryland HBI. (1/3/12 PM Trial Tr. 33 (M. Thompson).) Defendant State of Maryland was added by court order on September 25, 2010. (ECF No. 164.) Defendant MHEC is an agency of the State of Maryland. MHEC’s responsibilities include (a) “ensur[ing] that the State Plan for Higher Education complies with the State’s equal educational opportunity obligations under State and federal law, including Title VI of the Civil Rights Act,” Md.Code Ann., Educ. § ll-105(b)(2)(ii); (b) “assuring] that courses and programs offered are within the scope of the approved missions of the regional higher education centers,” § ll-105(d)(2)(iv); and (c) developing a program for “desegregation and equal educational opportunities,” § 11 — 105(f). Defendant Danette Gerald Howard is Secretary of MHEC and is sued in her official capacity. Defendant Kevin M. O’Keefe was the Chairman of MHEC when this action was filed.

III. BACKGROUND

A. Maryland’s Higher Education System

The Maryland Charter for Higher Education is the “statement of policy for higher education in Maryland.” Md.Code Ann., Educ. § 10-201. MHEC’s duties, under the Charter, include “[a]dvis[ing] the Governor and General Assembly on statewide higher education policy; ... [c]oordinat[ing] and arbitrating] among different segments of higher education in the state; ... granting] final approval of mission statements for each public institution of higher education ... [and] [assessing] the adequacy of operating and capital funding for public higher education and establishing] operating funding guidelines based on comparison with peer institutions and other relevant criteria[J” Md. Code Ann., Educ. § 10-207. The Maryland Education Code defines the “public senior higher education institution[s]” as Morgan State University (“Morgan”); St. Mary’s College of Maryland (“St. Mary’s”); and the constituent universities of the University System of Maryland (“USM”), which includes: University of Maryland, Baltimore (“UMB”); University of Maryland Baltimore County (“UMBC”); University of Maryland, College Park (“UMCP” or “College Park”); University of Maryland Eastern Shore (“UMES,” formerly “Princess Anne”); University of Maryland University College (“UMUC”); Bowie State University (“Bowie”); Coppin State University (“Coppin”); Frostburg State University (“Frostburg”); Salisbury University (“Salisbury”); Towson University (“Towson”); and the University of Baltimore (“UB”). Md.Code Ann., Educ. §§ 10-101,12-101(b)(6).

Bowie, Coppin, Morgan, and UMES are Maryland’s HBIs; UMCP, UMUC, UMB, UB, Frostburg, Salisbury, Towson, and St. Mary’s are its TWIs. (OCR Partnership Agreement, PTX 4, at 5.) Morgan State University has a Board of Regents and St. Mary’s has a Board of Trustees. Md.Code Ann., Educ. §§ 14-102(a), 14-402(a). The University System of Maryland is governed by a single Board of Regents. § 12-102(b). The duties of each governing board are governed by § 10-208 and include “policy[;]” “mission statements;” “goals that are consistent with the roles and missions approved for the institutions;” and “institutional budget submissions.”

B. De Jure Era Segregation in Maryland Higher Education

By the turn of the 20th century, “[operating under statutory direction ... [Maryland] ha[d] established a dual system of public education, one administered for its white and one administered for its colored citizens.” (Appellant’s Brief, Pierson v. Murray (Md.Ct.App.1935), PTX 773, at 9.) Prior to 1920, no public higher education opportunities existed for African Americans in Maryland. (Trial Tr. 1/5/12 AM Trial Tr. 27 (Popovich).) The state had contracted with Morgan, which was a private institution at the time, to operate UMES (at the time, it was called Princess Anne) in order to fulfill its federal 1890 land grant mandate so the state could continue to receive funding for its white land grant institution, College Park. UMES was operated merely as a college prep school, not a college campus, for black students. (Id. at 28-29.) Finally, by 1935, the state purchased UMES from Morgan, but UMES did not become a full-fledged college campus until the 1970s. (Id. at 29.)

Throughout the last century, the Governor and the General Assembly commissioned a series of reports to examine Maryland’s provision of higher education to its black citizens. These provide detailed, contemporaneous accounts of the development of Maryland’s dual higher education system throughout the de jure era. (See id. at 30-32.) The first such report, conducted by the 1937 Soper Commission, found that “[a] crisis has arisen in the field of higher education for Negroes in Maryland ... The cause is that the State has failed to make adequate provision for Negroes in this branch of education.” (Soper Commission Report, PTX 17, at 10.)

The Commission found:

In the field of higher education, while the State has fostered white colleges for one hundred and fifty years it made its first grant to a Negro college in 1914 ... The State organized and supported a white teacher training institution in 1866, seventy years ago. It has aided a Negro Normal School only since 1911— twenty five years. The State of Maryland came into actual ownership of a State University for white students in 1918, since which time it has formally adopted a policy of state provision for white under-graduate, graduate, and professional education. It was not until 1935 that provision was made for Negro graduate and professional education ... In the same year the State provided its own college for Negroes by the purchase of Princess Anne Academy from Morgan College seventeen years after the acquisition of the corresponding white institution.

(Id. at 146.)

The Soper Commission summarized: “It is thus clear that the white population has had the advantage of generous state support for its higher education many years in advance of the Negro population. The contrast between the amounts of money received by the two racial groups would show, if possible of computation, an enormous differential in favor of the white race.” (Id.) The Soper report was commissioned in the wake of a lawsuit filed by an African American who successfully petitioned to be admitted to the University of Maryland Law School in 1935. (1/5/12 AM Trial Tr. 34 (Popovich).) By this time, “Maryland ... was starting to feel the pressure of providing for some choice because the courts seemed to be ruling against the kind of situation that existed in Maryland.” (Id.)

Following a recommendation of the Sop-er Commission, Maryland purchased Morgan in 1939 to provide a college education to African Americans in the state. (Id. at 34-35.) The report also recommended shuttering UMES because of “how badly [it] ... had been supported,” but this recommendation was not followed. (Id.)

In addition to UMES and Morgan, by this time the state also had two public teachers colleges for African Americans: Coppin and Bowie. (Id. at 42.) (Coppin was, at this time, run by the City of Baltimore, not the state. Id.) Both Coppin and Bowie were sub-standard institutions, inferior to the public white teachers colleges in Maryland, and in need of substantial improvements. (Soper Commission Report, PTX 17, at 22-24.)

By 1947, when the Marbury Commission completed a comprehensive review of higher education in Maryland (including a review of “The Problem of Separate Institutions for Negroes”), all four of the current HBIs in Maryland were under public control. (Marbury Commission Report, PTX 18, at 77.) Morgan was defined as an “undergraduate liberal arts college;” UMES was “nominally a branch of the University of Maryland and [was] designated as the land-grant college for Negroes;” Bowie and Coppin were teachers colleges for Prince George’s County and Baltimore City schools, respectively. (Id. at 77-78.) The commission found that “[n]one of these schools [was] equal in quality to the corresponding institution maintained for the white population.” (Id. at 78.) The commission also noted that “[ajlthough the state maintain[ed] extensive facilities for the graduate and professional education of white persons, there [was] no provision for the equivalent training of Negroes in the state.” (Id.)

In a follow up report to the Marbury Commission that specifically examined the state’s public HBIs, the 1950 Weglein Commission found: “It would hardly be feasible to attempt a complete separation of Negro higher education in Maryland from the higher education of white students in the state. The development of colleges for white students in the state has directly influenced the manner of establishment and growth of Negro institutions. The continuous uphill struggle on the part of the Negro colleges to secure facilities on a par with white institutions is a factor which cannot be overlooked in a survey of this kind.” (Weglein Commission Report, PTX 826, at 15.) The Weglein Commission made a variety of recommendations, some of which were eventually followed (such as increasing the master’s degree offerings at Morgan, moving Coppin to state control, and establishing a permanent state commission on higher education). (See id. at 7-9.)

In 1954, the Supreme Court decided Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), declaring that “separate but equal” was inherently unconstitutional, but Maryland continued to operate a segregated system of higher education for more than a decade after. (See 1/5/12 AM Trial Tr. 62-64 (Popovich); Overview of Morgan State University (Popovich Demonstrative), PTX 39, at 21, 38.) During this time, Maryland operated the University of Maryland as a comprehensive university for white students and two four-year liberal arts colleges (Morgan and UMES) for black students. (Conrad Expert Rep. I, PTX 69, at 6.) Notably, the Pullen Commission report, a comprehensive study of higher education in Maryland released after Brown, delineated between “white colleges” and “Negro colleges,” noting that while “there [were] Negroes in graduate schools in Maryland, there are no Negro graduate schools.” (Pullen Commission Report, PTX 19, at 39-40.)

On the heels of the Pullen Commission, two “dueling” commissions, the Warfield and Frampton Commissions, issued reports recommending ways to expand and improve the system. (1/5/12 AM Trial Tr. 70-73 (Popovich).) The Frampton report criticized the Warfield Commission for failing to consider the “appropriate utilization” of the state’s four HBIs. The Frampton Commission recommended, for example, that Morgan would “serve as a branch of the University of Maryland in the Baltimore area far more logically than ... Towson[,]” as the Warfield report had recommended. (Frampton Commission Report, PTX 20, at 21.) The state ignored the Frampton Commission’s recommendation, and instead of turning Morgan into the University of Maryland’s Baltimore campus — to which it was well-suited — the state opted to create a new campus entirely, the University of Maryland at Baltimore County (“UMBC”). (Popovich, “Higher Education Development in the Absence of Statewide Planning” (Feb. 2010), PTX 268, at 4.) The state later acquired the University of Baltimore (“UB”) in 1973. (Popovich, Historical Context (June 1, 2005), PTX 267, at 6.) The Baltimore Sun referred to the large number of public schools in Baltimore as the “mess in Baltimore.” (1/5/12 AM Trial Tr. 93-94 (Popovich).) The problem of duplicative institutions in Baltimore has never been addressed. In fact, in 2007, MHEC approved the admission of freshmen at UB, which had been limited to third and fourth year undergraduates, adding an additional four-year institution to the region, and UB continues to seek an expansion of its four-year offerings. (1/30/12 AM Trial Tr. 17, 60-62 (Bogomolny).)

In 1968, Maryland created the Maryland Council of Higher Education (“MCHE”) which authored the state’s first plan for higher education. (Popovich, Historical Context (June 1, 2005), PTX 267, at 4.) The first state plan recognized the system’s segregation and the need to place unique programs at HBIs. (Id.) Morgan proposed becoming the state’s first multi-racial institution in 1969, but the state ultimately rejected this proposal. (Id.)

C. OCR Notification and Initial Plans(1969-2000)

In March of 1969, what is now the Office for Civil Rights (OCR) at the Department of Education formally notified Maryland “that it was one of ten states operating a racially-segregated system of education in violation of Title VI of the Civil Rights Act.” (Conrad Expert Rep. I, PTX 69, at 12.) Maryland submitted a “State Plan” for desegregation, and OCR “requested revisions.” (Id.) In 1970, Maryland resubmitted the plan but OCR did not respond. (Id.)

In 1973, OCR informed Maryland that it was still not in compliance with Title VI and set a deadline of June 1973 for a new desegregation plan. (Id.) In February 1974, Maryland submitted a new plan to OCR, which was amended in May 1974 at the request of OCR. (Maryland Desegregation Plan (February 1974), PTX 381; Conrad Expert Rep. I, PTX 69, at 12.) The plan called for MCHE, which had no formal enforcement authority to review mission designations or academic programs, to implement the plan. (Id.)

MCHE created a task force (the “Cox Task Force”) to “propose ways of enhancing the role and image of predominantly black public colleges in Maryland.” (Cox Task Force Report, PTX 22, at 1.) The task force determined that Maryland’s HBIs “had to develop the ability to compete despite disparities.” (Id. at 8.) It recommended, among other changes, that HBIs be given enhanced funding and that “each historically black public college should develop its own specialty areas or programs within the total state system that will broaden the appeal of the institution to a more diverse student body.” (Id. at 20-21.) The Cox Task Force also warned that establishing the University of Baltimore as a public college would have a negative effect on Morgan and Coppin, and it recommended that, at most, UB operate only as a “third and fourth year and postgraduate” institution. (Id. at 24-25.)

Maryland’s plan was accepted by OCR in June 1974. (“A Plan to Assure Equal Postsecondary Educational Opportunity 1985-1989” (June 1985), PTX 305, at 13). But, shortly thereafter, in response to a “mid-year desegregation status report,” OCR informed Maryland that it had failed to execute its plan “promptly and vigorously” and that, unless remedial actions were taken, enforcement proceedings would be initiated. (Id.) In December 1975, OCR informed Maryland that it was referring the matter to the now Department of Education’s Office of General Counsel and requesting “administrative fund termination proceedings.” (Id.) In January 1976, before such proceedings began, Maryland filed suit against OCR seeking an injunction restraining OCR from initiating any administrative fund termination. (Id.) In Mandel v. U.S. Dep’t of Health, Education, and Welfare, 417, F.Supp. 57 (D.Md.1976), the court granted an injunction requiring OCR to take certain steps before any further enforcement proceedings could commence. (Id.)

Concerned about the eventual approval of OCR’s enforcement authority, however, Maryland began desegregating its TWIs “very quickly” in order to prevent its higher education funding from being cut off. (1/5/12 AM Trial Tr. 86 (Popovich).) This desegregation was largely one-directional, with a substantial number of black students entering TWIs but not the other way around. (Id. at 89; see “Second Annual Desegregation Status Report” (Vol. Ill, Feb. 1976), PTX 455, at 9; “A Plan to Assure Equal Postsecondary Educational Opportunity 1980-1985” (December 1980), PTX 263, at 56.) In fact, the percentage of white students attending HBIs was at its highest in the mid-1970s, and, with some exceptions, declined thereafter. (See “Trends in White Graduate Students at Historically Black Institutions in Maryland” (October 2009), PTX 184, at 1). “In 1972, white students attending [HBIs] accounted for over 8% of the total white graduate/professional students attending public campuses statewide. Currently, only 2% of white students pursuing advanced degrees are enrolled at an HBI.” (Id.) In 1976, the HBIs reported 18.2% white undergraduate enrollment. (“Second Annual Desegregation Status Report” (Vol. Ill, Feb. 1976), PTX 455, at 7, 11). By 2008, the enrollment of white undergraduates at HBIs was 3.35%. (Conrad Demonstrative Exhibits, at 32 (citing HBI Enrollment Data, PTX 740).)

In 1975, the Maryland General Assembly also passed legislation designating Morgan the state’s “urban university” and giving the school doctoral granting authority. (Overview of Morgan State University (Popovich Demonstrative), PTX 39, at 40; see also Md.Code Ann., Educ. § 14-101(b).) However, by 1981, representatives of Morgan testified at a special legislative session that the school’s ability to develop programs had been hampered by Maryland’s focus on having Morgan’s programs be “urban oriented.” (Popovich, Historical Context (June 1, 2005), PTX 267, at 8.) Until 1994, only one doctoral program was approved at Morgan. (Id. at 7-9; Overview of Morgan State University (Popovich Demonstrative), PTX 39, at 40.)

By 1985, Maryland and OCR settled their ongoing litigation and jointly approved a new desegregation plan that stated it “fully conform[ed] with Title VI of the Civil Rights Act.” (“A Plan to Assure Equal Postsecondary Educational Opportunity 1985-1989” (June 1985), PTX 305, at 14.) Following the expiration of the 1985 desegregation plan, Maryland submitted a final report in 1991 on the state’s performance in meeting its goals. (“Plan to Assure Equal Postsecondary Educational Opportunity 1985-1989 Final Report” (May 1991), PTX 44.) The state did not meet its desegregation goals in terms of the percentage of other race enrollment at the HBIs. (Id. at 58.) The state also had set a goal of implementing 25 new programs at the HBIs, but had only implemented 13 new programs. (Id. at 14.) OCR issued no findings and had no correspondence with Maryland regarding desegregation of the HBIs between the end of the 1985 plan and 1999. (1/9/12 AM Trial Tr. 27-28 (Popovich.).) In 1994, however, Maryland did issue a “Notice of Application of Supreme Court Decision” following the Fordice opinion and indicated that it would apply Fordice “to all pending Title VI evaluations of statewide higher education systems with OCR-accepted desegregation plans that have expired, including Maryland.” (OCR Partnership Agreement, PTX 4, at 7; Conrad Expert Rep. I, PTX 69, at 16.)

During this time, beginning in 1988, Maryland also reorganized its public higher education system. (Overview of Morgan State University (Popovich Demonstrative), PTX 39, at 48.) MHEC became, and continues to be, the authority charged with reviewing and approving campus missions and proposals for new academic programs. (Conrad Expert Rep. I, PTX 69, at 14.) MHEC also creates and implements operational funding guidelines. See Md.Code Ann., Educ. §§ 10-203, 11-302, 11-105, 11-206. MHEC is also charged with implementing desegregation. § 11 — 105(f). The University System of Maryland (“USM”) became the governing body for all public institutions besides Morgan and St. Mary’s. §§ 10-101(e)-(f), 12-101(b)(6). This reorganization, for the most part, reflects the current makeup of Maryland’s public higher education institutions.

The 1999 Larson Task Force determined that MHEC and USM had not completely met their obligations under the 1988 reorganization act to develop a desegregation plan for the HBIs. (Larson Task Force Report, PTX 563, at 60-61.)

D. The 2000 OCR Partnership Agreement

In December 2000, Maryland and OCR entered into a Partnership Agreement which “set[] forth commitments that the State and OCR anticipate will result in agreement that Maryland is in full compliance under federal law, particularly Title VI ... and the standards set forth in United States v. Fordice ... regarding Maryland’s system of higher education.” (OCR Partnership Agreement, PTX 4, at 4.) OCR noted that “[t]he breadth and number of efforts devoted to participation and success of African American students in Maryland higher education attest to the State’s unflagging commitment to providing equal educational opportunities to all of its citizens. At all levels, the State and its public education institutions have developed and implemented far-ranging initiatives designed to maximize higher education access and success for African Americans.” (Id. at 7.) The Agreement lists such efforts, including “special grants to [HBIs] for development of recruitment and retention initiatives” and “strategic plans in which goals and objectives associated with African American achievement figure prominently.” (Id.)

The “commitments” made by Maryland in the Agreement included “Avoiding Unnecessary Program Duplication and Expansion of Mission and Program Uniqueness and Institutional Identity at the [HBIs]” and “Enhancing Maryland’s [HBIs]” including “assess[ing] and ineorporat[ing] into its established budget and program review procedures the operating (including academic programs) and capital enhancement funding proposals for each [HBI].” (Id. at 36-39.) Under the Agreement, Maryland and OCR were to assess whether the commitments had been fully implemented by May 2006. (Id. at 45.) If so, OCR stated it would “acknowledge formally in writing that Maryland has eliminated all vestiges of segregation in its public system of higher education.” (Id.)

In June 2006, Maryland wrote to OCR seeking such an acknowledgement and stating that it believed it had fully implemented its commitments, but OCR never responded to this letter and has taken no further action on the 2000 Partnership Agreement. (Conrad Expert Rep. I, PTX 69, at 17-18.)

E. The 2009 Maryland State Plan

In 2008, the Bohanan Commission to Develop the Maryland Model for Funding Higher Education appointed a panel to examine the HBIs which concluded:

HBIs historically and into the future have a dual mission. They are committed to the traditional mission of any institution of higher education to provide a quality educational experience ... [They] also have as their mission to address the educational needs of students who come from families with traditionally less education and income and who are often underprepared as a result of their circumstances ... This function for the HBIs is disproportionately more important than in the TWIs. Simply comparing the traditional indicators of capacity (funding levels, student-faculty ratios, etc.) poses the question: What kind of capacity is truly needed to carry out such a challenging mission?

(Bohanan Commission Report, PTX 2, at 120.) The 2009 State Plan adopted many of the Commission’s findings and concluded that “substantial additional resources” are needed for the HBIs to be “comparable” and “competitive” with the TWIs. (2009 Maryland State Plan, PTX 1, at 30-31.)

F. The Coalition’s Suit

Alleging that the State never met its commitments under the OCR partnership agreement, and citing “OCR’s failure to effectively and aggressively enforce relevant desegregation[,]” the Coalition filed suit in state court in 2006 seeking “to prevent the State of Maryland from continuing to ... maintain] ... a dual system of education based on race.” (See Complaint, ECF No. 2.) The Coalition sought a mandate that the State take steps to ensure that its HBIs are “attractive to and provide a quality education” to students “regardless of race.” (Id.) The Coalition’s suit was removed to this court on October 23, 2006. The Coalition amended its eomplaint four times. (See Fourth Amended Complaint, ECF No. 165.) After substantial discovery and a narrowing of the issues to be addressed, the parties presented evidence at a six-week bench trial in January-February 2012, culminating with closing oral arguments in October 2012.

IV. JUSTICIABILITY

After six years of litigation and a six-week bench trial, the State asserted, in its Proposed Findings of Fact and Conclusions of Law, that the Coalition and the named plaintiffs all lacked standing to bring this case. Indeed, nearly half of the State’s Proposed Findings are preoccupied with showing why this suit is non-justiciable. Before reaching the merits of the Coalition’s case, the court will briefly address the State’s arguments.

While standing is an important jurisdictional requirement under the Constitution, it exists where “any one” member of an association would have standing to sue individually. See Warth v. Seldin, 422 U.S. 490, 511-12, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Retail Industry Leaders Assoc. v. Fielder, 475 F.3d 180, 186 (4th Cir.2007) (“Associational standing may exist even when just one of the association’s members would have standing.”). Thus, so long as one member of the Coalition would have had standing to sue, the Coalition has standing in this case. Consistent with desegregation jurisprudence, see, e.g., Rogers v. Paul, 382 U.S. 198, 199, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965), the State all but directly admits that any one current student at an HBI would have standing to challenge allegedly segregative policies. (See Defs.’ Findings ¶¶ 51-54, 71,110.) The founding member of the Coalition has stated, by affidavit, that “students enrolled at Maryland’s HBIs have been members of the Coalition throughout the entire duration of this case.” (Affidavit of David Burton, ECF No. 367-2, ¶ 3; see also Current Student Affidavits, ECF Nos. 367-12, -13, & -14, ¶2.) The State has not presented any evidence to rebut this assertion and the court accepts it as fact. Therefore, because any HBI student member of the Coalition would have had standing in this case, the Coalition has standing and the court may proceed to an adjudication on the merits. Furthermore, named plaintiff Muriel Thompson was a current student at Morgan when the case was filed, and the suit could proceed on that basis as well.

The State suggests, however, that even current students at HBIs have not shown a sufficient injury in fact for standing purposes. This argument is entirely without merit. See, e.g., Allen v. Wright, 468 U.S. 737, 756, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (“[The] diminished ability to receive an education in a racially integrated school- — is, beyond any doubt, not only judicially cognizable but, ... one of the most serious injuries recognized in our legal system.”). The plaintiffs have alleged that, as current and former students of Maryland’s public HBIs, they were subjected to ongoing segregative policies traceable to the de jure era. Their claim directly mirrors the claims in Ford-ice and is obviously justiciable. See Fordice, 505 U.S. at 727-28, 112 S.Ct. 2727 (holding that the state has an “affirmative duty to dismantle its prior dual university system”). Attendance at an educational institution affected by segregative policies traceable to a prior de jure system may constitute an injury, regardless of the institution’s resources or quality. See Brown v. Board of Ed. of Topeka, 347 U.S. 483, 495, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (“[I]n the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore ... the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”) (emphasis added); see also Plessy v. Ferguson, 163 U.S. 537, 562, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting) (“The arbitrary separation of citizens, on the basis of race, ... is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the constitution.”). Thus, if the Coalition demonstrated that any one of its members is subject to ongoing segregative policies traceable to the de jure era and attributable to the state, see Allen, 468 U.S. at 757, 104 S.Ct. 3315, whether they perpetrate segregation “ingeniously or ingenuously[,]” then the Coalition has shown a justiciable injury. See Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) (quotation omitted).

The State’s suggestion that the court must look to the “individual circumstances” of the plaintiffs to find an injury in fact is overbroad. (See Defs.’ Proposed Findings & Conclusions (“Defs.’ Findings”), ECF No. 353, ¶ 50.) It is settled law that any traceable vestige of de jure segregation must be addressed at every level of public education. Fordice, 505 U.S. at 727-28, 112 S.Ct. 2727; see also Fisher v. University of Texas at Austin, — U.S. -, 133 S.Ct. 2411, 2421, 186 L.Ed.2d 474 (2013) (noting that “[t]he higher education dynamic” does not afford a state more deference where race-based policies are implicated). So long as a student is subject to traceable segregative policies attributable to the state, no court since Brown has decided that, notwithstanding such policies, a student’s voluntary attendance at a segregated school discharges a state’s affirmative duty to dismantle the vestiges of de jure segregation affecting that school. See, e.g., Green v. County Sch. Bd. of New Kent, 391 U.S. 430, 440-42, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968) (rejecting “freedom of choice” as a sufficient desegregation plan); see also Fordice, 505 U.S. at 729, 112 S.Ct. 2727 (“That college attendance is by choice and not by assignment does not mean that a race-neutral admissions policy cures the constitutional violation of a dual system. In a system based on choice, student attendance is determined not simply by admissions policies, but also by many other factors. Although some of these factors clearly cannot be attributed to state policies, many can be.”). A state’s obligation is to dismantle the “sophisticated as well as simple minded modes of discrimination” that are traceable to de jure segregation. See id. at 729, 733, 112 S.Ct. 2727. To the extent the State challenges the Coalition’s assertions regarding whether Maryland’s HBIs are racially identifiable or whether such identifiability is the effect of state policies traceable to the de jure era, those are legal and factual disputes to be decided on the merits. Such questions do not deprive the court of jurisdiction.

Finally, the defendants’ mootness claims are without merit. The defendants argue that any plaintiff who was a student at a Maryland HBI has likely graduated, and is no longer subject to ongoing injury at segregated HBIs, mooting any entitlement to injunctive relief. As explained above, the plaintiffs have demonstrated that both named plaintiff Muriel Thompson and members of the Coalition are current students at Maryland HBIs. So long as the Coalition continues to add new members who are current students, this case will not be moot. Because it is not a class action, however, there is a danger that the case will become moot if all the named plaintiffs and members of the Coalition graduate. See Pasadena City Bd. of Ed. v. Spangler, 427 U.S. 424, 430, 96 S.Ct. 2697, 49 L.Ed.2d 599 (1976).

Y. MARYLAND’S HBIs ARE RACIALLY IDENTIFIABLE

The parties agree that Maryland operated a de jure system of segregated public higher education. The schools identified in this case as HBIs were founded as schools exclusively for black students. Under Fordice, a state has not satisfied the requirements of the Civil Rights Act or the Constitution in eradicating the vestiges of de jure segregation if “existing racial identifiability is attributable to the State.” 505 U.S. at 728, 112 S.Ct. 2727 (“Our decisions establish that a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation.”). Today, Maryland’s HBIs remain racially identifiable institutions. White students made up only 5% of the population of Maryland’s HBIs in Fall 2009. (2011 MHEC Data Book, PTX 755, at 16.) Black students were 91% of the population. (Id.) At Bowie, black students were 88.4% of the population, while white students were 4.2%. (MHEC Enrollment Information System Data, DTX 398, at 398.4.) At Coppin, black stadents were 88.2% of the population and white students made up only 1.3%. (Id. at 398.6) At UMES, white students were a more significant 13.3% of the population, but black students still made up 77.6% of the student body. (Id. at 398.22.) At Morgan, black students were 90.7% of the population, while white students were 2.8%. (2011 MHEC Data Book, PTX 755, at 16.) Furthermore, as noted above, the percentage of white students attending HBIs peaked in the mid-1970s. (See “Trends in White Graduate Students at Historically Black Institutions in Maryland” (October 2009), PTX 184, at 1). “In 1972, white students attending [HBIs] accounted for over 8% of the total white graduate/professional students attending public campuses statewide. Currently, only 2% of white students pursuing advanced degrees are enrolled at an HBI.” (Id.) In 1976, the HBIs reported 18.2% white undergraduate and graduate enrollment. (“Second Annual Desegregation Status Report” (Vol. Ill, Feb. 1976), PTX 455, at 7). By 2008, the enrollment of white undergraduates at HBIs was 3.35%. (Conrad Demonstrative Exhibits, at 32 (citing HBI Enrollment Data, PTX 740).) The State’s demographer, Dr. Ben Pass-more, recognized the precipitous drop in white enrollment at HBIs over the past thirty years. (1/25/12 AM Trial Tr. 12-15 (Passmore).) William Kirwan, chancellor of the University System of Maryland, recognizes that the state’s HBIs “have not been successful at attracting non-African Americans.” (1/24/12 PM Trial Tr. 30 (Kirwan).)

The State argues that the court should adopt a 10% “other race enrollment” threshold for determining whether an institution is racially identifiable, but even if such a threshold were appropriate (an unconvincing proposition given the data show Maryland’s HBIs are, for the most part, overwhelmingly attended by black students), the State has not adduced reliable data suggesting it has met this “desegregation” threshold at its HBIs. Overall, only 7.4% of the students at the HBIs are white, Asian, and Hispanic. (2011 MHEC Data Book, PTX 755, at 16.) Factoring in unknown, foreign, and other race students, the non-black enrollment at the HBIs appears to rise to 13.1 %. (Id.) However, the State cannot rely on this number because the “unknown” and “other” numbers include students who refused to report their race or wished to report multiple race groups, according to the State’s demographer. (See 1/25/12 AM Trial Tr. 38 (Pass-more).) The propriety of including “foreign” students into this analysis is also doubtful, because the federal government “only looks at U.S. citizens when it calculates ... racial percentages^]” (1/9/12 AM Trial Tr. 89 (Popovich).)

More importantly, the State’s strict numerical arguments misinterpret its obligations under Title VI and the Constitution. The controlling question is not whether the state has done “enough” to integrate its institutions of higher learning; rather, it is whether the state has “le[ft] in place policies rooted in its prior officially segregated system that serve to maintain the racial identifiability of its universities.” Fordiee, 505 U.S. at 743, 112 S.Ct. 2727. Because the Coalition has demonstrated that Maryland’s HBIs are “racially identifiable,” to the extent the Coalition has proven that this racial identifiability continues to be perpetrated by State policies traceable to the de jure era, the State is liable for the continued segregative effects of those policies.

VI. MARYLAND HAS ELIMINATED SOME BUT NOT ALL TRACEABLE BE JURE ERA POLICIES AND PRACTICES AS REQUIRED BY FORBICE

The court makes no finding in this opinion as to whether the State has met all of its commitments in the 2000 OCR Partnership Agreement, nor is the court suggesting that the State should not continue efforts to better fund Maryland’s HBIs and support their dual mission, regardless of any obligation to do so under Title VI. As already noted, the issues in this case are difficult, and both sides hold sincere beliefs about the State’s successes and failures in supporting the HBIs.

The court can hold the State liable, however, only under the framework articulated in Fordice. There, the Supreme Court established a three-step analysis for determining whether a state has discharged its duty to dismantle former systems of de jure segregated higher education. Knight v. Alabama, 14 F.3d 1534, 1540 (11th Cir.1994). First, the plaintiff must show that a “particular policy that has been challenged as segregative is ‘traceable’ to decisions that were made or practices that were instituted in the past for segregative reasons, thus rendering it a vestige of segregation.” Id. The Fordice Court alternatively described such policies as those that are “derived from,” 505 U.S. at 734, 112 S.Ct. 2727, “a continuation of,” id. at 738, 112 S.Ct. 2727, “rooted in,” id. at 743, 112 S.Ct. 2727, or that “have as their antecedents,” id. at 740, 112 S.Ct. 2727, prior de jure segregation. While it is not sufficient for the defendants simply to show that current policies are race-neutral, neither is it sufficient for the plaintiffs to show, for example, a present imbalance in resources without identifying a current policy or practice rooted in de jure segregation that allegedly causes that imbalance. See Ayers v. Fordice, 111 F.3d 1183, 1223 (5th Cir.1997) (“The district court correctly focused on the traceability of policies and practices that result in funding disparities rather than the traceability of the disparities themselves.”).

Second, if the plaintiff succeeds in showing that a policy or practice is traceable to prior de jure segregation, the burden of proof shifts to the state “to establish that it has dismantled its prior de jure segregated system.” Fordice, 505 U.S. at 739, 112 S.Ct. 2727. The state must show that the challenged policies, when considered in combination, id., do not currently have continuing “segregative effects.” See id. at 731, 112 S.Ct. 2727; Knight, 14 F.3d at 1541. Policies with segregative effects are those that “diseourage[ ] or prevent! ] blacks from attending HWIs” and those that “discourage whites from seeking to attend HBIs.” Knight, 14 F.3d at 1541.

Third, if the state fails to show that policies traceable to prior de jure segregation do not have current segregative effects (or if the state chooses to bypass the segregative-effects analysis), it must show that those policies have a “sound educational justification” and cannot be “practicably eliminated.” Fordice, 505 U.S. at 731, 112 S.Ct. 2727. To show that a policy cannot be “practicably eliminated,” the State must show that its “legitimate educational objectives” could not be accomplished through “less segregative means.” 505 U.S. at 744, 112 S.Ct. 2727 (O’Connor, J., concurring); see also Knight, 14 F.3d at 1546 (“Under Fordice, a state can be required to change even educationally sound practices where they have been found to be vestiges of segregation with continuing segregative effects. Only where there are no alternative remedies that are practicable and educationally sound is the state defendant relieved of its obligation to remedy the vestiges’ effects.”)

Three allegedly traceable policies of the Maryland system of higher education are at issue in this case: (1) limited institutional missions; (2) operational funding deficiencies; and (3) unnecessary program duplication. As explained below, the Coalition has proven that the State has failed to eliminate the traceable de jure era policy of unnecessary program duplication for Maryland’s HBIs. The State has not proven that the current unnecessary program duplication that exists in Maryland at its HBIs does not continue to have segregative effects on Maryland’s system of higher education, nor has it shown that there are sound educational justifications preventing the elimination of this duplication. The Coalition has not proven that any current operational funding or mission related policy or practice, however, is traceable to the de jure era, even if Maryland’s HBIs do not have resources or missions equal to Maryland’s TWIs.

A. Mission Setting

If the State continues to impose more “limited” missions on public HBIs than their TWI counterparts, such mission designations may be traceable policies. See Fordice, 505 U.S. at 739-41, 112 S.Ct. 2727; Ayers, 111 F.3d at 1210-11 (“[T]he mission designations adopted by the [state] ... effectively fixed the scope of programmatic offerings that were in place at each university during the de jure period ... [policies and practices governing the missions of the institutions of higher learning are traceable to de jure segregation and continue to foster separation of the races.” (quotation omitted)); Knight, 14 F.3d at 1544-46 (affirming district court’s finding that the limited missions of Alabama’s HBIs are traceable policies and remanding on issue of segregative effects). As explained below, while the mission statements of Maryland’s HBIs are in some ways historically linked to their de jure era analogs, the Coalition has not demonstrated that the State continues to “effectively fix” the scope of HBI offerings based on their de jure era missions, nor does it continue to impose missions on the HBIs, which have independence and flexibility in crafting mission statements.

The Coalition makes three arguments to support its allegation that the current missions of Maryland’s HBIs are “limited” by the state as they were during the de jure era, and, as a result, that the mission designation of each Maryland HBI is a traceable policy. First, even though Maryland has a current policy granting schools themselves the power to craft their mission statements, and to propose programs to complement those mission statements, MHEC must approve changes. The Coalition argues that the HBIs have been limited by the State in their attempts to expand their historical missions, fixing them to their de jure era counterparts. Second, the Coalition argues that mission is “what a university actually does,” not simply its formal mission statement or designation, and, thus, that an examination of the actual offerings at the HBIs conclusively demonstrates they are limited relative to their TWI peers. Finally, the Coalition points to examples of TWI mission expansions as evidence that the HBIs are comparatively weaker within the system and continuing to be encroached upon in mission. As explained below, none of these arguments demonstrate that the State’s current policies and practices regarding HBI missions are traceable to the de jure era.

1. Formal Mission Statements or Designations

First, the Coalition does not dispute that it is the institution itself that develops its own mission statement. See Md.Code Ann., Educ. § ll-302(a). Instead, the Coalition alleges that MHEC’s power to object to mission statements if it determines the proposed statement is inconsistent with the State Plan, § 11 — 302(d), has perpetuated traceably limited formal mission statements or designations at each HBI. Certainly, MHEC works to coordinate Maryland’s institutions through the statewide planning process and to approve mission statements. (1/23/12 AM Trial Tr. 26-27 (Howard); 2/2/12 PM Trial Tr. 54-55 (Blanshan).) MHEC may also make suggestions on ways to improve an institution’s mission proposals. (1/4/12 PM Trial Tr. 2-4 (T. Thompson).) Despite this authority, the State currently plays an overall minor role in setting the mission of each institution. (2/6/12 AM Trial Tr. 91 (Blanshan).) The Coalition has identified only one example of a time in which an HBI was refused a mission statement change. A proposed revised mission statement for UMES, which would have expanded its Ph.D. offerings in 5-7 disciplines, was denied in 1999. (Joint MBA Proposal Workgroup, PTX 254, at 108-11.) While MHEC did recommend delaying the UMES expanded mission at that time, it also simultaneously approved an expanded mission statement for Bowie to develop two new applied doctoral offerings. (Id.) MHEC also emphasized that UMES’s proposed mission change was being delayed due to a failure to document the “need for a separate engineering program or for general authority to offer research doctorates” apart from a collaborative program already underway between UMES and College Park. (Id. at 109.) This single example does not demonstrate that the State’s mission statement policies and practices are rooted in or a continuation of the mission planning process that limited HBIs during the de jure era.

To the contrary, there is ample evidence in the record demonstrating that the State has actively worked to expand the roles of the HBIs since the de jure era and to place them on equal mission footing with Maryland’s TWIs. The 2009 State Plan repeatedly emphasizes enhancement of Maryland’s HBIs as a primary goal for MHEC. (See, e.g., 2009 Maryland State Plan, PTX 1, at 12-13, 30-34.) The 2008 HBI Panel, which was convened in the state planning process to examine ways to make HBIs comparable and competitive with the TWIs, noted that it

should not be lost and is highly significant that the state of Maryland has initiated on its own examination of the specific meaning of the terms comparable and competitive----In doing so, Maryland, on its own, has reached for not only a more specific standard — but a higher and more exacting one, which demonstrates its commitment to strengthening the HBIs and the Maryland system of higher education as a whole.

(Bohanan Commission Report, PTX 2, at 118.) While it may be true that the “past treatment of the [HBIs]” in setting missions, approving programs, funding them, and assessing results, “has had the effect of substantially marginalizing the HBIs[,]” (id. at 128), Maryland has maintained a policy of enhancing HBI mission and programming at least since the 1970s in an effort to mitigate the effects of de jure discrimination. (See 1/9/13 AM Trial Tr. 76-77 (Popovich) (stating that, beginning in the 1970s, the State instituted a strategy (albeit not completely effective) of “enhancing] the historically black schools through program development”).) In short, Maryland’s continued efforts to ensure its HBIs are comparable and competitive in terms of mission are commendable in light of past discrimination, and the Coalition has not demonstrated that the State’s mixed success in these efforts constitutes a traceable policy or practice perpetuating “limited” missions at the HBIs.

2. “Mission” as Program

Second, beyond formal mission statements or designations, the Coalition argues that the HBIs are functionally limited in mission, based on their actual offerings and capacity. This argument relies on one of the Coalition’s expert’s, Dr. Walter Allen’s, broader view that the “mission” of a university is not just its formal designation in the system but also what it “actually does ... in terms of the major kind of activities associated with institutions, academic, the public service, their teaching, functions.” (2/8/12 PM Trial Tr. 3 (Allen).) While a broader definition of “mission” may be useful in other contexts, it is not helpful for the purpose of assessing the Coalition’s traceability allegations, because it conflates policies associated with the State’s formal mission planning process with each individual programmatic decision made by the State or the institutions themselves. Nevertheless, even under this broad definition of “mission,” Dr. Allen did not suggest that the alleged mission limitations imposed on the HBIs are a product of any direct State policy or practice regarding mission; rather, he argued that the HBIs’ mission limitations have been caused “by historical factors and also factors of the kinds of resources that are in place to allow implementation of that set of mission statements.” (Id.) Thus, the Coalition identified no traceable policy or practice specifically controlling HBI “missions” that the State must eliminate, even if the HBIs “do” less than their TWI peers.

The Coalition’s broad mission arguments are not entirely irrelevant, however. They relate to relative program uniqueness and competitiveness, and to that extent some of the evidence the Coalition introduced related to “mission” illustrates, as detailed in Part VI.C infra, the need for the State to eliminate unnecessary program duplication. For example, the 2000 OCR Partnership Agreement suggests that expansion of HBI “missions” is a necessary step towards desegregation. (OCR Partnership Agreement, PTX 4, at 36-37.) The agreement demonstrates not that any current statewide mission assignment process must be changed, but that mission expansion may be one effective remedy for unnecessary program duplication that increases the racial identifiability of the HBIs by making them less competitive in attracting other race students. Similarly, in a 2005 document assessing the Partnership Agreement, the four HBI presidents noted the need to “expand HBI missions!],]” but they characterized this need as a way to reverse the systematic erosion of the “uniqueness in missions and programs between HBIs and TWIs.” (Report on the OCR Partnership Agreement (March 28, 2005), PTX 13, at 3, 8.) The letter emphasized the need for HBIs to “offer attractive academic programs without undue duplication at nearby campuses.” (Id. at 9.)

Indeed, MHEC itself has recognized that “Mission creep” is a problem across the state’s institutions of higher learning, undermining the competitiveness and uniqueness of each institution, not because the state’s mission-assignment policies need to be reformed, but because the state is accepting “program proposals exceed[ing] the boundaries of [institutional] missions.” (MHEC “Review of Mission Statements” (January 11, 2012), PTX 866, at 19.) As explained below, because the HBIs are already disproportionately affected by excessive duplication of their offerings, this mission creep harms the HBIs significantly more than the TWIs. Thus, the court recognizes the struggles of the HBIs to compete with the TWIs in program offerings, but finds that no current mission-related policy or practice is traceable to the de jure era. Rather, it is because the state has allowed its “institutions of higher education to be reactive to [the] pursuit of prestige[,]” (1/23/12 AM Trial Tr. 73 (Howard)), that the state has failed to adequately recognize and support the mission potential of its HBIs. Accordingly, evidence of HBI/TWI programmatic imbalance is better assessed in the context of unnecessary program duplication, not separately as a traceable “mission” related policy or practice.

3. TWI “Mission” Expansion

Finally, and relatedly, the Coalition points to “mission” expansions at regionally proximate TWIs as evidence that the State continues to undermine HBI competitiveness, but such arguments are again better assessed in the context of unnecessary program duplication and a lack of unique, high-demand programs at HBIs, not as State policies concerning HBI missions themselves. For example, Morgan is identified as “the State’s public urban university,” Md.Code Ann., Educ. § 14-101(b), but Towson’s mission statement identifies it as “the State’s metropolitan university.” (“Towson at a Glance” (2010), PTX 100, at 1.) MHEC approved Towson’s new mission statement in 2005-2006, touting itself as the state’s “metropolitan” university, over the objection of Morgan, which argued that “urban” and “metropolitan” are too similar. (See Letter from Morgan President Richardson to MHEC (December 9, 2005), PTX 287, at 1; MHEC “Mission Statement Review” (February 2006), PTX 763, at 34; 1/12/12 AM Trial Tr. 96-98 (Richardson).) While this potential overlap in mission is confusing, it is not evidence that Morgan’s mission statement is “limited” by a traceable state policy. To the contrary, Morgan is benefited by its mission designation. (See 1/9/12 AM Trial Tr. 77-78 (Popovich) (recognizing some of the programmatic offerings at Morgan related to its “urban” mission). The Coalition’s proven concern is not that any state policy “limits” Morgan in mission, but rather that Towson’s new mission statement may perpetuate unnecessary duplication of programs always available at Morgan through expanding thematically similar program offerings.

Similarly, the Coalition argues that the approval of an expanded master plan for the University of Baltimore, turning it into a fast growing institution, has harmed the competitiveness of the HBIs. UB began as primarily a graduate and upper division institution, (see 1/30/12 AM Trial Tr. 53-54 (Bogomolny)), but since the 1990s the state has allowed UB to increasingly expand its offerings to four-year undergraduates. (See Joint MBA Proposal Workgroup, PTX 254, at 108; 1/24/12 AM Trial Tr. 63-66 (Kirwan); UB Strategic Plan (2008-2012), PTX 917, at 4; 1/30/12 AM Trial Tr. 61-62 (Bogomolny).) The “mess in Baltimore,” (Overview of Morgan State University (Popovich Demonstrative), PTX 39, at 31; 1/5/12 AM Trial Tr. 94-95 (Popovich)), that has resulted from the State’s expansion of UB and other Baltimore regional TWIs is again a problem of duplication, however, not any identified policy that “limits” HBI missions.

Thus, the Coalition’s “mission” argument, as it relates to the relative strength of the program offerings at the HBIs and TWIs, in terms of demand and uniqueness, is better addressed in the analysis of unnecessary program duplication as a