Equity v. Md. Higher Educ. Comm'n (295 F. Supp. 3d 540, 2017)

Catherine C. Blake, United States District Judge TABLE OF CONTENTS

I. INTRODUCTION...546

II. PROCEDURAL HISTORY...547

III. PRELIMINARY ISSUES...549

A. Standing...549

B. Defendants' Daubert Motion...550

1. Standard for Admissibility...551

2. Reliability of Conrad and Allen's Testimony...551

C. Permanent Injunction...557

IV. PROPOSED REMEDIES...558

A. The State's Remedial Proposals...558

B. The Plaintiffs' Remedial Proposals...559

1. New Programs...560

2. Academic Program Transfers...561

a. Faculty and Students...562

b. Partnerships and Investments...564

c. Maryland's Workforce Needs in STEM and Nursing...564

d. UMUC Issues...564

3. MHEC Program Approval Process...566

4. Effectiveness of the Plaintiffs' Proposed Remedy...568

5. Cost of the Plaintiffs' Remedial Proposal...569

6. Impact of the Plaintiffs' Proposal on Institutional Accreditation...571

C. The HBIs' Remedial Proposals...572

1. Coppin...572

2. Morgan...573

3. UMES...573

4. Bowie...574

V. HISTORICAL RECORD...574

A. Historical Support for Unique, High-Demand Programs...574

B. Previous Remedies Under Fordice Standard...577

1. Mississippi...577

2. Tennessee...579

3. Alabama...580

4. Louisiana...580

VI. ANALYSIS...581

A. New Programs...582

B. Program Transfers...583

C. Funding for Recruitment, Financial Aid, and Marketing...585

D. MHEC Process...585

VII. REMEDY FOR MARYLAND...585

I. INTRODUCTION

The years of segregation under law at Maryland's public institutions of higher education came to an end some decades ago, and the State has much to be proud of in its public colleges and universities. Maryland's distinguished historically black institutions ("HBIs") serve a vital mission in our system of public higher education. Yet current policies and practices traceable to the de jure system, in the form of unnecessary program duplication having segregative effects at the HBIs, persist. In such circumstances, the Supreme Court has placed the burden squarely on the state to reform such policies "to the extent practicable and consistent with sound educational practices." U.S. v. Fordice , 505 U.S. 717, 729, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992).

In the several years since this court found that the plaintiffs, including the Coalition for Equity and Excellence in Maryland Higher Education ("the Coalition"), had proved the existence of unnecessary program duplication having segregative effectives at the HBIs, mediation proved unsuccessful and a lengthy remedies hearing followed. Unfortunately, the State did not engage in a serious effort to propose a remedy prior to the hearing and did not permit the Coalition's experts to consult meaningfully with relevant state actors including the presidents and faculty of the HBIs and of the state's traditionally white institutions ("TWIs"). As more fully explained below, the court is forced to conclude that neither side's proposed remedies are, for different reasons, sufficiently practicable, educationally sound, and likely to achieve the greatest possible reduction in segregative effects to justify ordering their imposition. Instead, the court will order appointment of a Special Master, authorized to consult with all relevant decision makers, to propose a remedial plan including funding for new programs and student recruitment at the HBIs, but not the extensive transfer of programs from the TWIs to the HBIs requested by the Coalition.

All parties need to recall that this case is not about institutions but about the constitutional right of students to attend any public college or university for which they are qualified without being required to accept racial segregation at that institution. Maryland's TWIs already meet that standard of integration; Maryland's HBIs do not. A remedial plan must encourage other-race students to attend the HBIs, but it will not be educationally sound if it unduly harms the students at the integrated TWIs. Crafting such a plan is a daunting task requiring the good faith collaboration of the Coalition and the State. The court urges such collaboration to strengthen and enhance Maryland's HBIs for the benefit of all Maryland students, present and future.

II. PROCEDURAL HISTORY

This action dates back to 2006. Plaintiffs, The Coalition for Equity and Excellence in Maryland Higher Education and named individuals associated with the organization, (collectively, "the Coalition" or "the plaintiffs"), sued the State of Maryland, the Maryland Higher Education Commission ("MHEC"), and their officers in their official capacities (collectively, "the State" or "the defendants"), alleging violations of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. After a bench trial, the court issued an opinion in 2013 holding that under United States v. Fordice , 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992), unnecessary program duplication within Maryland's system of higher education continues to have segregative effects for which the State has no sound educational justification. Coal. for Equity & Excellence in Md. Higher Educ. v. Md. Higher Educ. Comm'n , 977 F.Supp.2d 507, 544 (D. Md. 2013). Mediation regarding possible remedies commenced in January 2014 and continued for more than one year but was ultimately unsuccessful. (See Oct. 2, 2014 Order, ECF No. 398).

The parties then submitted competing remedial proposals to the court. The plaintiffs submitted an initial remedial proposal on May 5, 2015. (Pls.' First Remedial Proposal, ECF No. 406). The State filed its initial remedial proposal on November 20, 2015. (Defs.' First Remedial Proposal, ECF No. 447). On February 2, 2016, the court concluded that an evidentiary hearing was needed "to inform the court on the complex question of what remedies are educationally sound, justified by the scope of the violation found, and best targeted to remedy that violation while enhancing rather than harming Maryland's system of public education." (Feb. 2, 2016 Mem. and Order, ECF No. 460). The court stated that the defendants' remedial proposals "are neither adequate nor sufficiently specific," although it noted that collaborative programs-one aspect of the State's first remedial proposal-"are indeed helpful in certain circumstances." (Id. at 2). The court also noted that the plaintiffs' proposals "for creation of niche areas of programmatic concentration, with increased new and high-demand offerings, appear promising but need more thorough discussion." (Id. ). Finally, the court rejected the proposal of having Morgan State University ("Morgan") take over the University of Baltimore ("UB") and noted it was unlikely to order a remedy "that would essentially eliminate" the University of Maryland University College ("UMUC"). (Id. at 2 n.2).

On June 1, 2016, the State filed a motion for a protective order to prevent the plaintiffs from using or relying on mediation materials prepared and shared among the parties and the mediator. In particular, the presidents of Maryland's HBIs had developed proposals listing courses (and associated funding) that each institution would prioritize in the context of a proposed settlement; the defendants sought to block the plaintiffs from using these submissions in the court proceedings on remedy. (Defs.' Mot. for Protective Order, ECF No. 469). On August 12, 2016, the court granted in part and denied in part the plaintiffs' motion. Specifically, because of the confidentiality requirement in Local Rule 607.4, the court ordered that HBI submissions be stricken as exhibits from the plaintiffs' expert reports, but the court declined to strike the expert reports themselves. (Aug. 12, 2016 Order, ECF No. 485).

In the months leading up to the six-week remedies hearing-which took place in January and February 2017-the parties filed several other motions. On September 30, 2016, the State moved to exclude expert testimony concerning the effects of "programmatic niches," "high-demand" programs, and "unique" programs on HBI enrollment by other-race students, claiming such testimony is inadmissible under Fed. R. Evid. 702. (Defs.' Mot. to Exclude Expert Testimony, ECF No. 495) (" Daubert motion"). The plaintiffs responded in opposition to the Daubert motion on December 9, 2016. (Pls.' Resp. in Opp'n to Mot. to Exclude Expert Testimony, ECF No. 528) (" Daubert Opp."). In part, the plaintiffs urged the court not to rule on the motion to exclude expert testimony before the remedies hearing. (Id. at 32). The court agreed with the plaintiffs and declined to rule on the Daubert motion before the remedies hearing commenced in January 2017.

In addition to the Daubert motion, the State filed a motion to compel the plaintiffs to answer discovery requests related to the plaintiffs' Article III standing. (Defs.' Mot. to Compel, ECF No. 503). On December 16, 2016, the court denied the motion to compel additional discovery. (Mem. and Order, ECF No. 536).

Prior to the remedies trial, the two sides also filed various motions in limine. On November 30, 2016, the plaintiffs filed a motion in limine to prohibit the State from presenting evidence at trial that, according to the plaintiffs, would re-litigate the liability findings. (Pls.' Mot. in Limine, ECF No. 522). On December 16, 2016, the court granted the plaintiffs' motion in limine insofar as it sought to prevent re-litigating the liability findings but denied it insofar as it sought to strike a particular statistical analysis. (Order, ECF No. 537). Also on November 30, 2016, the State filed its first motion in limine to exclude evidence about injunctive relief at the University of Maryland Eastern Shore ("UMES"). (Defs.' First Mot. in Limine, ECF No. 520). The court again declined to rule before the hearing.

On December 14, 2016, the State filed a second motion in limine to exclude from use at trial a dissertation written by Brandon Daniels and to bar the plaintiffs' experts from relying upon it. (Defs.' Second Mot. in Limine, ECF No. 530). Also on December 14, 2016, the defendants filed a third motion in limine seeking to exclude written responses from the HBIs concerning which programs would be best suited at each HBI to desegregate that HBI and contribute to its academic identity. (Defs.' Third Mot. in Limine, ECF No. 531). On December 28, 2016, the defendants filed a fourth motion in limine to preclude the plaintiffs from presenting certain testimony and exhibits related to the proposed transfer of engineering programs from the University of Maryland Baltimore County ("UMBC") to Morgan. (Defs.' Fourth Mot. in Limine, ECF No. 538). Since the hearing, the court has ruled on the motions, which were denied. (Sept. 29, 2017 Order, ECF No. 640).

The court held a six-week hearing on remedies in January and February, 2017. Post-trial briefing concluded on June 2, 2017, and on June 8, 2017, counsel presented oral argument.

This opinion constitutes the court's findings of fact and conclusions of law under Fed. R. Civ. P. 52.

III. PRELIMINARY ISSUES

Before reviewing the parties' proposed remedies, the court must consider three preliminary issues: standing; the admissibility of the plaintiffs' expert testimony; and the propriety of injunctive relief.

A. Standing

Although this court found standing in its 2013 liability ruling, and again in a 2016 memorandum issued prior to the start of the remedies hearing, the State continues to assert that plaintiffs lack standing. The court will briefly address the State's revived arguments.

Constitutional standing is a "fundamental limitation" requiring injury in fact, traceability, and redressability. Town of Chester, N.Y. v. Laroe Estates, Inc. , --- U.S. ----, 137 S.Ct. 1645, 1650, 198 L.Ed.2d 64 (2017). The Supreme Court recently explained that "[a]t least one plaintiff must have standing to seek each form of relief requested in the complaint." Id. at 1651. "In the absence of injury to itself, an association may have standing solely as the representative of its members." Warth v. Seldin , 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The Coalition has standing in this case so long as "just one of [its]...members would have standing." Retail Indus. Leaders Assoc. v. Fielder , 475 F.3d 180, 186 (4th Cir. 2007). David Burton, the founding member of the Coalition, reiterated by affidavit that "[s]tudents enrolled at Maryland's HBIs have been members of the Coalition throughout the entire duration of this case." (Aff. of David Burton ¶ 4, ECF No. 508-1; see also Current Student Affs. ¶ 2, ECF Nos. 508-2, -3, -4, & -5). The State's only attempt to rebut this assertion is to note that one of the students, Chinedu Nwokeafor, a senior at Morgan State, expected to graduate in 2017. Even if Mr. Nwokeafor graduated, the Coalition still has provided declarations from three current Maryland HBI student members. (Current Student Affs. ¶ 1, ECF Nos. 508-2, -3, & -5). The Coalition seeks injunctive relief applicable to all HBI students, and the record indicates that continuing student membership in the Coalition is probable.

The State also argues that the student declarations fail to establish injury-in-fact. The four current student members of the coalition all provided declarations noting "the injury to students such as [themselves] based on the ongoing segregative effects of Maryland's policy of program duplication." (Current Student Affs. ¶ 5, ECF Nos. 508-2, -3, -4, & -5). The State's assertion that the currently enrolled students needed to specifically demonstrate a desire for and denial of an integrated education is without merit. As this court noted in its 2013 memorandum, "if the Coalition demonstrate[s] that any one of its members is subject to ongoing segregative policies traceable to the de jure era and attributable to the state...then the Coalition has shown a justiciable injury." (Oct. 7, 2013 Mem. at 18, ECF No. 382).

B. Defendants' Daubert Motion

In September 2016, defendants filed a motion seeking to exclude the opinion testimony of plaintiffs' experts, Drs. Clifton Conrad and Walter Allen ("Conrad and Allen"), under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). ( Daubert Mot., ECF No. 495). The court deferred consideration of the motion, and Conrad and Allen testified at the remedies hearing-subject to defendants' ongoing Daubert objection-regarding various aspects of their remedial proposal, including the effect of programmatic niches, unique programs, and high-demand programs on HBI enrollment of white and other-race students. Following the hearing, the parties submitted additional briefing and correspondence regarding the Daubert issue. Now, defendants ask the court to grant the motion to exclude and to strike Conrad and Allen's testimony from the record. For the reasons explained below, the court has denied the motion.

1. Standard for Admissibility

Under Daubert , district courts perform a "gatekeeping" function to ensure that expert testimony is both relevant and reliable. Cooper v. Smith & Nephew, Inc. , 259 F.3d 194, 199 (4th Cir. 2001) (citing Daubert , 509 U.S. at 588, 113 S.Ct. 2786 ); see also Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (extending Daubert 's analysis to expert testimony based on "technical" and "other specialized," as well as "scientific," knowledge). The source of this obligation is Federal Rule of Evidence 702, which provides that

a witness who is qualified as an expert by knowledge, skill, experience, training, or education" may offer opinion testimony if "(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The proponent of the expert testimony bears the burden to establish its admissibility by a preponderance of the evidence. Cooper , 259 F.3d at 199.

The Supreme Court in Daubert identified a flexible, non-exhaustive set of factors to guide courts in evaluating the reliability of expert testimony. See Daubert , 509 U.S. at 592-594, 113 S.Ct. 2786. These factors include: "(1) whether a theory or technique can be or has been tested; (2) whether it has been subjected to peer review and publication; (3) whether a technique has a high known or potential rate of error and whether there are standards controlling its operation; and (4) whether the theory or technique enjoys general acceptance within a relevant scientific community." Cooper , 259 F.3d at 199 (citing Daubert , 509 U.S. at 592-94, 113 S.Ct. 2786 ). A district court need not consider every factor in every case, and "particular factors may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert's particular expertise, and the subject of his testimony." Id. at 200 (citing Kumho Tire , 526 U.S. at 150, 119 S.Ct. 1167 ). Courts have recognized a particular need to employ a "flexible" test in areas outside of the hard sciences. See, e.g. , U.S. v. Simmons , 470 F.3d 1115, 1122-23 (5th Cir. 2006) (admitting the testimony of a psychologist that did not satisfy all four Daubert factors).

2. Reliability of Conrad and Allen's Testimony

Defendants assert that the "Plaintiffs seek to offer expert opinion testimony that is unsupported by any social science methodology at all (with regard to the effect of 'programmatic niches') and by unsound and unreliable social science (with regard to the effects of 'high-demand' or 'unique' programs)." ( Daubert Mot., ECF No. 495, at 1). Specifically, they contend that (1) Conrad and Allen offer no social science basis for their conclusions regarding programmatic niches; (2) the methodology of Dr. Conrad's 1994 study is unreliable, and there is no social science basis for generalizing from it; (3) the methodology of the 2016 enrollment study is unreliable; and (4) Conrad and Allen's personal experiences, including campus visits and conversations with students at HBIs, are not a reliable basis for their testimony. Plaintiffs respond, among other things, that a less rigid test for reliability applies outside of the hard sciences; that Conrad and Allen's analysis complied with relevant standards; that Dr. Conrad's 1994 study is only one piece in a "vast body of evidence" upon which Conrad and Allen based their remedial proposal, ( Daubert Opp. at 4, ECF No. 528); and that the defendants' criticisms go to the weight, rather than the admissibility, of Conrad and Allen's testimony.

The question before the court is whether Conrad and Allen's opinions are "based on sufficient facts or data" and are "the product of reliable principles and methods...[that were] reliably applied...to the facts of the case." See Fed. R. Evid. 702. For the reasons discussed below, the court finds that they satisfy this standard.

First, the record reflects that Conrad and Allen relied on a wide range of authorities in developing their remedial proposal, considering "historical factors" as well as "documents and court records." (See 1/19/17 AM Trial Tr. at 6). At the remedies hearing, Conrad and Allen specifically cited, among other sources: guidance from the Department of Education, Office of Civil Rights ("OCR"), (1/18/17 PM Trial Tr. at 4, 5-6 (Allen)); the 2000 Partnership Agreement between OCR and the state of Maryland, (Id. at 4, 6-7); the report of the Maryland Cox Task Force, (Id. at 5, 7); the 2006 Committee 1 report (Id. at 5, 7-8); the 2008 HBI panel, (Id. at 8); the 2009 Maryland State Plan for Higher Education, (Id. at 5, 8-9); the 2005 letter from the four HBI presidents, (Id. at 10); records associated with higher education desegregation litigation in other states, (Id. at 11); academic research and scholarship, (Id. at 5); Dr. Conrad's 1994 study, (1/24/17 Trial Tr. at 31-35 (Conrad)); enrollment trend data (1/18/17 AM Trial Tr. at 81 (Allen)); and their personal and professional experiences, (Id. ; 1/24/17 Trial Tr. at 25 (Conrad)). Conrad and Allen reference each of these sources in some part of the Second Corrected Reply Report, and the majority of them appear in the sections of the report that defendants identify as appropriate locations for such disclosures, (see Reply, Mot. to Exclude Expert Testimony at 5, ECF No. 529 (" Daubert Reply")); "Basis for Opinions," (Final Expert Report, PRX 312 ¶¶ 85-96); "Data and Materials Considered," (id. ¶¶ 97-104); "Overview of Methodology," (id. ¶¶ 74-82), and Exhibit 18, "Materials Considered," (id. Ex. 18). In short, the Second Corrected Reply Report and supporting testimony demonstrate that Conrad and Allen based their remedial proposal on "sufficient facts or data." (See Fed. R. Evid. 702(b) ).

Second, Conrad and Allen utilized processes that, despite some methodological flaws, are sufficiently reliable to support admission of their testimony. (See Fed. R. Evid. 702(c)-(d) ). There is no one-size-fits-all test for reliability; rather, an expert's opinions are reliable if they comply with the standards of the "relevant field." See Cooper , 259 F.3d at 203 (quoting Kumho Tire , 526 U.S. at 152, 119 S.Ct. 1167 ) ("[T]he purpose of Rule 702's gatekeeping requirement is to 'make certain that an expert...employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."). Here, Conrad and Allen's opinions-summarized in their 240-page final report and extensive supporting testimony-encompass multiple subject-matter areas and modes of analysis. Thus, the court will look to the standards of various "field[s]," see id. -among them general principles of social science research, best practices in higher education desegregation, and requirements of quantitative and qualitative analysis-in evaluating the reliability of Conrad and Allen's remedial proposal.

As Dr. Allen explained at the remedies hearing, he and Dr. Conrad used "a mixed-methods approach" to arrive at their conclusions. (1/19/17 AM Trial Tr. at 5 (Allen)). They considered available information "in conjunction with and in connection to the patterns of enrollment that were existent and that were anticipated or desired." (Id. at 6). They "drew from multiple sources" and would "look at the data, go back and look at the patterns, look at sources, look at historical factors, look at the characteristics of the institutions, and so accepted, embraced the fact that those different dimensions are interactive." (Id. at 11). They produced original analysis, most notably the 2016 enrollment study, in addition to reviewing and interpreting existing documents. Dr. Allen described their work as "an iterative process." (Id. ). Dr. Conrad explained that they were engaged in "sifting and winnowing." (1/24/17 Trial Tr. at 148, 188, 198; 1/25/17 Trial Tr. at 19, 24, 25, 48, 65, 112, 126 (Conrad)).

Conrad and Allen's approach is "one generally employed in the social sciences." See U.S. v. Hammoud , 381 F.3d 316, 337 (4th Cir. 2004) (en banc). In Hammoud , the Fourth Circuit upheld the admission of opinion testimony the expert described as follows:

Well, we're talking about a social science here. This is not scientific research. Basic academic intellectual research combined with the techniques I was taught in ...various courses I took as an analyst for the government both taught that the best way to go about making sense of something in the social sciences is to collect as much information as possible and to balance each new incoming piece of information against the body of information that you've built to that point....So it's a constant vetting process. And the more rigorous you are, the better your information will be.

381 F.3d at 337. This explanation closely resembles Conrad and Allen's descriptions of their "iterative" process in this case, including the following account by Dr. Allen:

As is consistent with any research process, we reviewed multiple sources of information and data. We then, in our conversations, exchanges, reading, and analysis of those data sources, formulated comprehensive strategies and, out of those strategies and out of the analysis went through a process that led to the presentation of a set of formalized or formal recommendations.

I should emphasize that this process was iterative. It wasn't a strict and simple linear process. That is, things that we learned along the way, we used to inform, revise, and refocus at points the report.

(1/18/17 AM Trial Tr. at 76-77 (Allen)).

Defendants contend that Conrad and Allen's opinions fail to satisfy the relevant standard because they are based on unreliable social science or have no social science basis at all. (See Daubert Reply at 6-8, ECF No. 529 (capitalization altered)). In particular, defendants appear to discount Conrad and Allen's reliance on any sources other than specific qualitative and quantitative studies, including historical documents. As Hammoud makes clear, however, the review and analysis of a body of information-whether in the form of studies, raw data, or historical documents like committee reports-is itself a generally accepted approach in the social science field. See Hammoud , 381 F.3d at 337. Such a process is especially appropriate where, as here, the subject matter is complex and not susceptible to resolution by any single mode of analysis.

Further, to the extent that Conrad and Allen base their opinions on their experience, rather than a particular social science methodology, the applicable standard is the one that governs testimony by experiential experts. An experiential expert may testify on the basis of either "experience alone" or "experience in conjunction with other knowledge, skill, training or education." U.S. v. Wilson , 484 F.3d 267, 274 (4th Cir. 2007) (quoting Fed. R. Evid. 702 advisory committee's note). Such testimony satisfies the reliability requirement where the expert can "explain how [his] experience leads to the conclusion reached, why [his] experience is a sufficient basis for the opinion, and how [his] experience is reliably applied to the facts." Id. (quoting Fed. R. Evid. 702 advisory committee's note). Applying this standard, the court finds that Conrad and Allen have sufficiently explained how their experience in the field of higher education desegregation-including as expert witnesses in similar litigation-informed their recommendations in this case. (See, e.g. , 1/18/17 AM Trial Tr. at 74-75 (Allen) (discussing experience developing remedial proposals); 1/18/17 PM Trial Tr. at 36-38 (Allen) (discussing experience with "what worked and didn't work" and familiarity with the role of independent monitors and monitoring committees); 1/19/17 AM Trial Tr. at 6-7 (Allen) (discussing experience with the use of qualitative versus quantitative data and appropriateness of quantitative testing); 1/19/17 AM Trial Tr. at 29-30 (Allen) (discussing types of data relied on by courts in previous cases); 1/19/17 AM Trial Tr. at 34 (Allen) (explaining that recommendations in remedial proposal are based in part on "experiences and lessons learned from earlier remedial proposals"); 1/19/17 AM Trial Tr. at 48-49 (Allen) (explaining that the "mixed-methods analysis" used to create the remedial proposal incorporated "prior experience with remedial [proposals] and prior experience with the desegregation of systems of higher education"); see also 1/24/17 Trial Tr. at 184-86 (Conrad) (discussing "extensive experience visiting HBCUS").

Of course, to the extent that Conrad and Allen's remedial proposal does rely on specific quantitative or qualitative studies, the court must determine whether the methodology of the studies they employed satisfies Rule 702. See Cooper , 259 F.3d at 200 (citing Kumho Tire , 526 U.S. at 152, 119 S.Ct. 1167 and Oglesby v. General Motors Corp. , 190 F.3d 244, 250 (4th Cir. 1999) ). Through the testimony of Dr. Lichtman and Dr. Bastedo, as well as exhibits filed with their Daubert motion, defendants presented a number of specific criticisms of Dr. Conrad's 1994 study and the 2016 enrollment analysis, including claims related to generalizability, bias, and flaws in research design and execution. Although, in certain instances, it is possible for such errors to warrant exclusion, see In re Scrap Metal Antitrust Litig. , 527 F.3d 517, 530 (6th Cir. 2008), that is not the case here. Dr. Conrad's 1994 study is a published work considered by multiple courts deciding higher education desegregation cases, see Cooper , 259 F.3d at 199 (citing Daubert , 509 U.S. at 592-94, 113 S.Ct. 2786 ) (citing "publication" and "general acceptance within a relevant scientific community" as factors that bear on reliability), and the 2016 enrollment study is a piece of rigorous quantitative analysis that defendants replicated and critiqued as part of their case, see id. (listing "whether a theory or technique can be or has been tested" as a factor). "Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 596, 113 S.Ct. 2786. Because any methodological weaknesses present here go to weight, rather than admissibility-and because, at the remedies hearing, defendants had the opportunity to test Conrad and Allen's opinions through the adversarial process-there is no basis for exclusion under Rule 702. See Karlo v. Pittsburgh Glass Works, LLC , 849 F.3d 61, 81-85 (3d Cir. 2017) (reversing exclusion of expert testimony where district court "erred by applying a 'merits standard of correctness,' a higher bar than what Rule 702 demands").

Further, although the word of an expert is not enough to establish reliability, Kumho Tire , 526 U.S. at 157, 119 S.Ct. 1167, an expert's background may bear on the Daubert analysis, particularly when the nature of the subject matter "preclude[s] ideal experimental conditions and controls." See Simmons , 470 F.3d at 1123 ("In such instances, other indicia of reliability are considered under Daubert , including professional experience, education, training, and observations."). The task here-developing a promising remedial theory under circumstances with no historical or contemporary counterpart-is clearly one that "preclude[s] ideal experimental conditions and controls." See id. As such, it is appropriate to consider Conrad and Allen's extensive qualifications and experience in the field of higher education desegregation. See Cooper , 259 F.3d at 199 (citing Kumho Tire , 526 U.S. at 150, 152, 119 S.Ct. 1167 ) (court has broad discretion in determining not just whether proposed expert testimony is reliable, but how to determine reliability).

As noted, Dr. Allen has worked as an academic, consultant, and expert witness on higher education desegregation issues since 1976. (See Final Expert Report, PRX 312, Ex. 2). His research involves a "broad consideration of social inequality, with a particular focus on education and educational inequalities with respect to race, socioeconomic status, and gender." (1/18/17 AM Trial Tr. at 74 (Allen)). Recently, he has focused on racial desegregation, higher education, and student choice. (Id. ). Dr. Allen has served as an expert witness in numerous higher education desegregation cases, including United States v. Fordice , 505 U.S. 717, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) ; Ayers v. Fordice , 111 F.3d 1183 (5th Cir. 1997) ; United States v. Alabama , 828 F.2d 1532 (11th Cir. 1987) ; Knight v. Alabama , 787 F.Supp. 1030 (N.D. Ala. 1991) ; and Geier v. Sundquist , 801 F.2d 799 (6th Cir. 1986) ; as well as the affirmative-action cases Grutter v. Bollinger , 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), and Gratz v. Bollinger , 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003). (Final Expert Report, PRX 312, ¶ 10). During the 2012 liability trial, Dr. Allen was qualified as an expert and testified without objection in the areas of program uniqueness, unnecessary program duplication, sound educational justification, student choice, and remedies. (1/18/12 AM Trial Tr. at 37-38 (Allen)). The court cited to his trial testimony in its 2013 liability opinion.

Dr. Conrad has worked as an academic, consultant, and expert witness on higher education desegregation issues since 1980. (Final Expert Report, PRX 312 ¶ 2). He has published extensively on academic programming and unitary and dual systems of higher education in former de jure states, (1/10/12 AM Trial Tr. at 7-8 (Conrad)), and he testified as an expert witness in Fordice and Knight , among other cases. (Final Expert Report, PRX 312 ¶ 6). Dr. Conrad has served as a consultant to both OCR and Maryland on higher education issues. (1/10/12 AM Trial Tr. at 8-10 (Conrad)). Like Dr. Allen, he was qualified as an expert without objection in the 2012 trial, and he testified regarding programs, program approvals, program duplication, and the potential for unique programs to create other-race enrollment. (1/10/12 AM Trial Tr. at 10-11 (Conrad)). The court cited to his expert reports and trial testimony in its 2013 liability opinion.

Given the nature of the subject matter, the court concludes that Conrad and Allen's professional experience, education, training, and observations constitute an additional factor in favor of their reliability.

In fulfilling its gatekeeping obligations, a court determines only whether the underlying methodology is valid, not whether the expert's conclusions are correct.

TFWS, Inc. v. Schaefer , 325 F.3d 234, 240 (4th Cir. 2003). Conrad and Allen's opinions satisfy this test. In developing their remedial proposal, Conrad and Allen reviewed facts and data from a wide range of sources. They analyzed those facts and data using principles and methods generally accepted in the relevant fields, including social science, higher education desegregation, and quantitative and qualitative analysis. And they otherwise drew on "specialized knowledge" gained through their professional experience, education, and training. See Fed. R. Evid. 702(a).

For these reasons, the court will admit the challenged expert report and testimony.

C. Permanent Injunction

The defendants also challenged the propriety of injunctive relief as a remedy in this case. In its Proposed Findings of Fact and Conclusions of Law, however, the State asserted, for the first time, that the plaintiffs must meet the traditional four-factor test for permanent injunctive relief before the court can impose a remedy. To support its argument, the State relies on eBay, Inc. v. MercExchange, LLC , 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006) in which the Supreme Court held the traditional four-factor test applied to disputes arising under the Patent Act. Under the traditional four-factor test, to obtain a permanent injunction a plaintiff must demonstrate:

(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay , 547 U.S. at 391, 126 S.Ct. 1837. The State cannot offer any examples of application of this permanent injunction standard to a Fordice analysis in desegregation litigation.

In the wake of eBay , the Fourth Circuit has applied the four-factor test to a preliminary injunction in a copyright case, Bethesda Softworks, LLC v. Interplay Entm't Corp. , 452 Fed.Appx. 351, 355 (4th Cir. 2011), a permanent injunction under the Due Process Clause, A Helping Hand, LLC v. Baltimore Cty., MD , 355 Fed.Appx. 773, 776 (4th Cir. 2009), and a permanent injunction under the First Amendment, Legend Night Club v. Miller , 637 F.3d 291, 302-03 (4th Cir. 2011). Courts have interpreted eBay to prohibit "mechanical rules mandating injunctive relief" in any context. Intertape Polymer Corp. v. N.L.R.B. , 801 F.3d 224, 247 (4th Cir. 2015) ; see also, e.g. , Salinger v. Colting , 607 F.3d 68, 77-78 (2d Cir. 2010) ("[N]othing in the text or logic of eBay suggests that its rule is limited to patent cases. On the contrary, eBay strongly indicates that the traditional principles of equity it employed are the presumptive standard for injunctions in any context.").

While courts ordering remedies under a Fordice analysis have done so without discussing the test for granting a permanent injunction, there is no doubt that, even under the traditional four-factor analysis, injunctive relief is appropriate here.

First, this court already found that the traceable de jure era policy of unnecessary program duplication "continues to exacerbate the racial identifiability of Maryland's HBIs," thus causing irreparable injury to their students. (Oct. 7, 2013 Mem. at 59, ECF. No. 382). "Irreparable injury comes from the maintenance of segregative policies which are educationally unsound ...not from the dismantling of those policies." U.S. v. State of La. , 815 F.Supp. 947, 955 (E.D. La. 1993). Second, monetary damages are inadequate, because "a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure system that continue to foster segregation." Fordice , 505 U.S. at 728, 112 S.Ct. 2727. Third, the Fordice analysis already incorporates a balance of hardships inquiry with the "practicable and educationally sound" test. Given those parameters for any remedial order, the injury to plaintiffs outweighs any burden imposed by an injunction. Fourth, "upholding constitutional rights is in the public interest." Legend Night Club , 637 F.3d at 303.

Given this court's prior findings of liability under Fordice , and considering the four-factor test for a permanent injunction emphasized in eBay , remedial action will be ordered to address unnecessary program duplication in Maryland's higher education system.

IV. PROPOSED REMEDIES

Before stating its ruling on remedies, the court will provide a brief overview of the competing remedial proposals offered by the defendants and the plaintiffs, and will explore ways in which the plaintiffs' proposal reflects the contents of separate remedial proposals submitted by the four HBIs. The court will summarize testimony from university presidents and other witnesses with respect to key aspects of the plaintiffs' proposal, particularly the proposed transfer of academic programs from TWIs to HBIs. The court also will summarize testimony related to issues raised by the plaintiffs' proposal, including its cost, potential complications related to accreditation, and the plaintiffs' proposed revisions to the State's academic program approval process.

A. The State's Remedial Proposals

The State's initial remedial proposal, submitted on November 20, 2015, consisted of two elements. First, the State proposed the creation of a Fund for Collaborative Academic Programs ("FCAP"), a six-year initiative to support the development of new, collaborative programs between HBIs and TWIs. The State suggested FCAP might distribute $10,000,000 in grants. (Defs.' First Remedial Proposal at 3-7, ECF No. 447). Second, it proposed the establishment of four summer academies for high school students, one at each HBI. The academies would be supported by State expenditures between $500,000 and $1,000,000 per institution per year, during a proposed four-year period. (Id. at 7-10). On February 2, 2016, the court concluded this proposal was "neither adequate nor sufficiently specific," although it noted that "collaborative programs are indeed helpful in certain circumstances." (Mem. and Order at 2, ECF No. 460).

On April 24, 2017-after the remedies trial had concluded-the State submitted a second remedial proposal. (Defs.' Second Remedial Proposal, ECF No. 621). Under the second proposal, which superseded the first, the State would provide $50 million in funding over a five-year period, divided evenly among Morgan, Bowie, and Coppin.

(Id. at 3). Each of these three HBIs could use its portion of the funding for some or all of four purposes: enrollment management, student aid, campus inclusion initiatives, and summer academies. (Id. at 5). According to the defendants, these uses "were supported by trial testimony" and, overall, this flexible approach is "consistent with the HBI presidents' preferences as expressed at trial" and would "avoid the risks of Plaintiffs' program-based approach." (Id. ). "The proposal is intended to be sufficiently flexible and self-executing that no further judicial oversight would be required," according to the State. (Id. ). No funding for new programs was included. (See generally , Apr. 24, 2017 Status Report, ECF No. 621).

B. The Plaintiffs' Remedial Proposals

The plaintiffs submitted an original remedial proposal in May 2015. (Pls.' First Remedial Proposal, ECF No. 406). At trial, however, testimony focused on the plaintiffs' revised remedial proposal, which was submitted in 2016 and was the most recent at the time of trial. (PRX 21; PRX 312). The plaintiffs' 2016 remedial proposal would employ three strategies to increase other-race enrollment at HBIs: the creation of "programmatic niches" at each HBI, various academic "enhancements" at each HBI, and a reformed State process for approving new academic programs. These strategies will be briefly discussed in turn.

The plaintiffs' proposal centers on the first strategy: the creation of two or three "programmatic niches" at each of the four HBIs. These "programmatic niches" are clusters of related undergraduate and graduate programs, at least some of which are "unique" and in high demand among students. (PRX 312 at 50-51; PRX 21 at 1). To create these unique, high demand programs, plaintiffs generally call for either the creation of new programs at HBIs or the transfer of programs from TWIs to HBIs. In some instances, the plaintiffs propose new collaborations between HBIs and TWIs. According to the plaintiffs, these niches will help foster distinct institutional identities (beyond racial identities) at the HBIs, thus attracting other-race students. (PRX 312 at 50-51; PRX 21 at 1).

In addition to creating unique, high demand programs, the plaintiffs propose various academic "enhancements," such as additional funding for capital improvements, technology upgrades, scholarships, marketing, and recruitment activities. These funds are meant to support the programmatic niches by enhancing the quality and capacity of academic programs at HBIs. (Pls.' Proposed Findings of Fact at 133-35, ECF No. 622; PRX 312 at 29-30). Second, the plaintiffs propose reforms to the MHEC approval process for new academic programs. (Pls.' Proposed Findings of Fact at 135-43, ECF No. 622; PRX 312 at 9, 30-33).

Importantly, neither the plaintiffs' most recent proposal nor the State's original proposal reflects a consensus among key stakeholders. The State's first remedial proposal was drafted by State attorneys and two University System of Maryland ("USM") officials. (PRX 327 at 3; 1/12/17 PM Trial Tr. at 21-24 (Fielder)). That is, neither MHEC, (1/12/17 PM Trial Tr. at 35-36 (Fielder)), nor the current HBI presidents, (1/9/17 PM Trial Tr. at 46) (Wilson); 1/10/17 PM Trial Tr. at 3 (Bell); 1/11/17 AM Trial Tr. at 16-17 (Burnim); 1/11/17 PM Trial Tr. at 65-66 (Thompson)), were involved in drafting the State's original proposal. The State also did not consult with three of the TWI presidents who testified at the remedies trial. (1/30/17 Trial Tr. at 120 (Hrabowski); 2/1/17 Trial Tr. at 53 (Schatzel); 2/9/17 Trial Tr. at 136 (Schmoke)). And the plaintiffs' experts were not able to consult with HBI presidents when drafting their proposal. (See 1/11/17 PM Trial Tr. at 93). UB President Kurt Schmoke highlighted this lack of coordination among key stakeholders and suggested it would be helpful for all sides to discuss potential remedies. "I would hope, before final decisions are made, if it is possible, that we have an opportunity to sit with the presidents of the HBIs and the TWIs," he said. (2/9/17 Trial Tr. at 136 (Schmoke)). "[O]n the programmatic side, and looking at both the quality of programs and what might attract all students-white, black, whatever-to this program, we might be able to come up with some ideas that would be-might help resolve some of these issues." (Id. ).

Below is an overview of the plaintiffs' proposal. Where relevant, the court also describes the State's objections to the plan.

1. New Programs

The plaintiffs' proposal includes creating a variety of new programs at the HBIs. At Morgan, the plaintiffs propose creating three unique, high demand programs in the areas of business and management; urban environment, health, and sustainability; and engineering. To do so, the plaintiffs would both create new programs and transfer programs from TWIs. (PRX 21 at 2-7). At UMES, the plaintiffs propose the creation of three niches in the areas of engineering and aviation sciences; agriculture and environmental sciences; and pharmacy and health professions. (Id. at 11-14). The plaintiffs do not propose any program transfers to UMES. At Bowie, the plaintiffs recommend creating two niches: computer sciences, and professional studies: nursing, social work, and education. (Id. at 15-16). To create these niches, the plaintiffs propose creating a variety of new programs and transferring a doctorate program in Information and Interaction Design from the University of Baltimore. (Id. ). At Coppin, the plaintiffs propose two niches: one in nursing and allied health, and the other in criminal justice and applied social and political sciences. (Id. at 8-10). For nursing and allied health, the plaintiffs propose no program transfers. For criminal justice and applied social and political sciences, they propose creating new programs and transferring programs. (Id. ).

The plaintiffs' remedial proposal with respect to UMUC, which offers classes that are either exclusively online or a combination of online and on-site instruction, is different. Their 2016 remedial proposal called for transferring all UMUC programs that duplicated HBI programs to the HBI that offers the duplicated program. (Id. at 17-18). After trial, however, the plaintiffs revised their proposal with respect to UMUC, in two ways. First, they "do not seek to transfer the parts of programs where UMUC is working under a DOD contract or engaging in specialized programming targeted towards members of the military stationed out-of-state or outside the U.S." (Pls.' Proposed Findings of Fact at 121, ECF No. 622). Second, the plaintiffs clarified that they are no longer proposing the "total transfer" of all duplicative offerings from UMUC to the HBIs. Their latest proposal suggests that some duplicative programs could be transferred in a more "limited" way. For instance, the plaintiffs suggest UMUC might continue to offer the transferred programs to out-of-state students. (Id. ). The plaintiffs also propose transferring three programs from UMUC to Coppin (a bachelor's in criminal justice, a bachelor's in investigative forensics, and a master's in digital forensics and cyber investigation), and transferring four programs from UMUC to Morgan (a bachelor's in accounting, a master's in accounting and financial management, a bachelor's in finance, and a doctorate in community college policy and administration). (Id. at 131-33). The plaintiffs also suggest any remedy should include measures to help HBIs expand their capability to offer courses online and to ensure that new UMUC offerings do not adversely affect HBIs. (Id. at 136-38).

Several TWI presidents noted that creating new programs at the HBIs could benefit Maryland, at least in theory, by increasing the number of graduates. "We want them to have these programs too," UMBC's President Hrabowski testified. (1/30/17 Trial Tr. at 68-69 (Hrabowski)). "We need more [rather] than less." (Id. ). At the same time, some TWI presidents worried that, in practice, the plaintiffs' proposal would harm the TWIs. UB's President Schmoke testified that, if new revenue sources are found to fund new HBI academic programs, "then not only the [HBI] institutions will benefit, but the State will benefit from the graduates of those programs." (2/9/17 Trial Tr. at 71-72 (Schmoke)). If funds for higher education remain constant, however, "then the State would likely take money from other higher education institutions in order to fund those programs." (Id. ). Similarly, President Miyares testified that adding the new programs to HBIs will cause TWIs to "suffer," because "there is [only] so much money that will go to higher education." (2/6/17 Trial Tr. at 59 (Miyares)).

2. Academic Program Transfers

As noted, the plaintiffs propose transferring certain academic programs from TWIs to HBIs. HBI presidents offered mixed views on whether such transfers are necessary. According to Morgan's President Wilson, transfers must be a part of any viable remedy. "So I think it has to start there, with transferring some of the programs back," he said. (1/9/17 PM Trial Tr. at 30-31) (Wilson)). Bowie's President Burnim, by contrast, testified that program transfers are not an optimal way to build diversity at higher education institutions. (1/11/17 PM Trial Tr. at 6 (Burnim)).

TWI presidents criticized the plaintiffs' proposed program transfers. "[T]he reason that my colleagues and I are so concerned is that the proposal involves transferring programs," UMBC's President Hrabowski testified. (1/30/17 Trial Tr. at 67 (Hrabowski)). President Schmoke likened the plaintiffs' proposed transfers to a "body blow" to his institution and claimed that, for instance, the proposed transfers could force UB to shutter its business school. (2/9/17 Trial Tr. at 43-44 (Schmoke)). Similarly, Towson's President Schatzel called transfers "an ill-advised solution," (2/1/17 Trial Tr. at 57 (Schatzel)), while President Miyares estimated that the plaintiffs' proposal could cause UMUC enrollment to decline by 10-12 percent, which "would mean that UMUC would have to dramatically, significantly increase tuition or get relief from the State in increased State support."

(2/6/17 Trial Tr. at 68 (Miyares)). MHEC Secretary James Fielder, Jr. also criticized program transfers. "I have a significant problem with the transfers," he testified, "[y]ou really are eliminating and removing an academic program that typically is successful...with the thought that it can simply be implanted somewhere else....And I do think this would be very disruptive to the institutions." (1/12/17 PM Trial Tr. at 72 (Fielder)).

In summary, TWI presidents testified that program transfers would harm TWIs and the State of Maryland by (1) adversely affecting TWI faculty, students, and institutional reputations, (2) undermining partnerships and investments between the TWIs and outside institutions; and (3) hampering Maryland's goals of meeting workforce needs in science, technology, engineering, and math (STEM) and nursing. There also were unique reasons raised with respect to transferring programs from UMUC. These issues will be explored in turn below.

a. Faculty and Students

Several TWI presidents testified that the proposed transfers would harm their institutions' reputations and hamper efforts to attract and maintain talented faculty members and students.

"If the program is taken from us, it will have a devastating impact on...the reputation of the institution," UMBC's President Hrabowski explained. (1/30/17 Trial Tr. at 67-68 (Hrabowski)). Similarly, UB's President Schmoke testified that "there are high degree[s] of reputational risks of losing programs." (2/9/17 Trial Tr. at 72 (Schmoke)).

According to the TWI presidents, the proposed program transfers already have created a sense of instability that has made it more difficult for TWIs to retain and attract top-flight faculty members. (1/30/17 Trial Tr. at 39-40, 81 (Hrabowski); 2/1/17 Trial Tr. at 46 (Schatzel); 2/9/17 Trial Tr. at 68 (Schmoke)). President Schmoke, for instance, said the prospect that UB would lose some criminal justice programs-as proposed by the plaintiffs-has been a "cloud" hanging over faculty recruitment efforts because "people who are considering UB are concerned about exactly where these programs will be over the next few years." (2/9/17 Trial Tr. at 68 (Schmoke)). TWI presidents also claim the uncertainty created by the plaintiffs' proposed transfers has made it harder for TWIs to recruit talented students. (2/6/17 Trial Tr. at 166-67 (Miyares); 1/30/17 Trial Tr. at 80-81 (Hrabowski); 2/1/17 Trial Tr. at 46 (Schatzel)).

Some TWI faculty members already have expressed reluctance to move to HBIs alongside any transferred programs and, if the transfers take place, these faculty members may seek employment elsewhere, TWI presidents testified. For instance, President Schmoke testified that faculty members in UB's Information and Interaction Design doctorate program have "indicated their strong objection to moving," while faculty in UB's criminal justice program expressed "great concern about moving" and indicated that they may "pursue other options" if transfers take place. (2/9/17 Trial Tr. at 59-60, 67-68 (Schmoke)). UB faculty members are concerned that they would not retain the same tenure rights and control over academic programs if they moved to an HBI, he explained. (Id. at 56-57). Towson's President Schatzel expected faculty members "would not transfer," because they "have the ability...to go wherever they want." (2/1/17 Trial Tr. at 43-44, 57 (Schatzel)).

TWI presidents also warned that transferring programs to HBIs would have adverse ripple effects throughout the affected TWIs because the programs are part of the fabric of the university rather than standalone entities. "[I]t's not about just transferring a discrete area. They are all integrated," UMBC's President Hrabowski stressed. (1/30/17 Trial Tr. at 75, 94 (Hrabowski)). "Taking away these programs would remove critical expertise, not only to a department, but to the broad academic enterprise." (Id. ). Similarly, President Schmoke explained that faculty members who teach in UB's MBA program-which the plaintiffs propose transferring-also usually teach in other parts of the business school. (2/9/17 Trial Tr. at 40 (Schmoke)). Towson's President Schatzel, for her part, explained that an academic program "can't be lifted up and moved someplace," because the program really depends on the faculty, relationships with employers, and alumni associated with it at the TWI. (2/1/17 Trial Tr. at 43 (Schatzel)). She said transferring an accounting program to an HBI, as the plaintiffs propose, would have a "great impact" on Towson because accounting "is a core element of a business education" at Towson. (Id. at 47).

If the proposed program transfers take place, that also would make it harder for TWIs to attract top students, because students seek out schools that have a broad range of academic offerings available, UMBC's President Hrabowski testified. "So when thinking about recruiting really good students who are not sure, they want options. And we would limit ourselves dramatically if we did not have those options available." (1/30/17 Trial Tr. at 76 (Hrabowski)).

While testifying about the ways in which the plaintiffs' proposal may harm their institutions, the TWI presidents also made clear that their institutions currently serve diverse student populations and are committed to diversity. President Schmoke claimed that UB was "probably the most...racially integrated institution of the twelve in the USM system" and testified that UB's student population is 46 percent African-American and 43 percent white. (2/9/17 Trial Tr. at 25-26 (Schmoke)). President Hrabowski testified that UMBC is "seen as one of the most diverse places in the country" and noted that the student population is slightly less than 20 percent African-American and slightly less than 50 percent white. (1/30/17 Trial Tr. at 27-29 (Hrabowski)). He also stressed that UMBC wants to further diversify its students and faculty; concerning the latter, the dean of UMBC's graduate school is an African-American woman, he noted. (Id. at 37-43). President Schatzel testified that 20 percent of Towson's student population is African-American. She also noted that she recently created a new position-vice president of inclusion and institutional equity-to help bolster diversity at Towson. (2/1/17 Trial Tr. at 27-28 (Schatzel)). President Miyares stressed the sheer volume of African-Americans who receive an education at UMUC. He testified that UMUC enrolls more African-American students than the four HBIs combined and awards roughly the same number of degrees to African-American students each year as do the four HBIs combined. (2/6/17 Trial Tr. at 41-42 (Miyares)). He claimed the plaintiffs' proposal would harm African-American students at the TWIs. (Id. at 59).

The plaintiffs' witnesses downplayed some of the concerns voiced by the TWI presidents about program transfers. For instance, Dr. Lucie Lapovsky questioned the claim that TWI faculty would not move to HBIs alongside transferred programs. She testified that a variety of factors may influence whether faculty members ultimately decide to transfer to an HBI. In fact, faculty "usually will go with where their jobs are going," because "there are not a plethora of faculty jobs around these days in many fields." (1/17/17 PM Trial Tr. at 58 (Lapovsky)). Dr. Earl Richardson, a former president of Morgan, also testified that transfers are a "viable concept" and noted that Maryland has embraced transfers in the past in certain situations. (1/17/17 AM Trial Tr. at 47-49 (Richardson)).

b. Partnerships and Investments

TWI officials also asserted that their institutions have established longstanding partnerships with business and government entities. They testified that the plaintiffs' proposal would undermine those relationships, and the relationships would not transfer to HBIs alongside transferred academic programs. At Towson, President Schatzel testified, the accounting program has longstanding relationships with local firms where Towson alumni are employed, and these relationships create job opportunities for graduating Towson students. Although the plaintiffs propose to transfer accounting programs from Towson to Morgan, she testified that these relationships are not transferable. (2/1/17 Trial Tr. at 50-51 (Schatzel)). Similarly, Greg Simmons, UMBC vice president for institutional advancement, testified that UMBC has developed a partnership with NASA through which NASA has hired over one thousand UMBC graduates. Transferring engineering programs from UMBC, as the plaintiffs propose, would "change[ ] the way we're able to work with partners and prepare students in a meaningful way," he testified. (1/31/17 Trial Tr. at 41 (Simmons)). He also suggested these partnerships are not transferable. (Id. ). Concerning investments, Mr. Simmons testified that UMBC's relationship with Northrup Grumman has yielded financial benefits. Last year, for example, Northrop Grumman gave UMBC $3 million in funding for scholarships. (Id. at 35-36).

c. Maryland's Workforce Needs in STEM and Nursing

UMBC's President Hrabowski also testified that transferring academic programs would hamper Maryland's efforts to fulfill unmet workforce needs in areas like STEM and nursing. "This state needs tens of thousands of more people educated in these areas, whether it's computer engineering, computer science, and computing broadly," he explained. (1/30/17 Trial Tr. at 68 (Hrabowski)). "Taking away our program would mean