Full opinion text
OPINION MOTZ, District Judge. The question posed in this case is whether a public university, racially segregated by law for almost a century and actively resistant to integration for at least twenty years thereafter, may — after confronting the injustice of its past — voluntarily seek to remedy the resulting problems of its present, by spending one percent of its financial aid budget to provide scholarships to approximately thirty high-achieving African-American students each year. The case is now before me on remand from the United States Court of Appeals for the Fourth Circuit. I previously upheld the Benjamin Banneker Scholarship Program, a scholarship program at the University of Maryland at College Park open only to African Americans. Podberesky v. Kirwan, 764 F.Supp. 364 (D.Md.1991) (Podberesky I). In reversing my decision, the Fourth Circuit ruled that I had failed to make specific findings of present effects of past discrimination. It thus remanded the case for a determination on that issue. Podberesky v. Kirwan, 956 F.2d 52 (4th Cir.1992) (Podberesky II). After the remand, UMCP engaged in an administrative fact-finding process to decide whether to continue the Banneker Program. In April 1993, the University issued a Decision and Report in which it concluded that the Program should be continued. Thereafter, the parties engaged in additional discovery and, at the conclusion of the discovery, filed cross-motions for summary judgment. Those motions were argued on October 22, 1993 and are now ripe for decision. I. Banneker scholarships currently provide full financial support for four years of study at UMCP. The most recent data available in the record as to the value of a Banneker scholarship is for the 1990-91 academic year. That year the scholarships awarded to instate students were valued at $7,571 per year and the scholarships awarded to out-of-state students were valued at $11,627 per year. The aggregate annual cost of the Banneker Program during the 1990-91 school year was $594,351. It accounted for approximately one percent of UMCP’s total financial aid budget. Def. Ex. 6 at 9. The scholarships are awarded each year to black high school seniors on the basis of merit. In the fall of 1990, the minimum eligibility requirements were a 900 S.A.T. score and a 3.0 grade point average. Plaintiff met these requirements, having scored 1340 on the S.A.T. exam and having maintained an unweighted grade point average of 3.56. He applied for a Banneker scholarship but was ,not considered because he is not African-American. Twenty-eight Banneker scholarships were ultimately awarded to students entering UMCP in the fall of 1990. A total of 3145 freshmen were admitted that year. II. ' The history of African-American higher education in Maryland before Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) is typical of most southern states. Maryland’s policy towards the education of its black citizens was characterized by the reluctant establishment of institutions of higher education for blacks that were segregated, vastly underfunded and consistently neglected. As a result, when the State Commission on the Higher Education of Negroes investigated the conditions in the state’s black colleges in 1937, it documented dramatic funding disparities and drastically inferior facilities and curricula in every major -field, including teacher education, agricultural and vocational education, liberal arts, fine art^-graduate and professional training, and extension opportunities. In light of this evideneé the Commission concluded that the state “had failed to make adequate provision for Negroes.” By the late 1930s, the state was under pressure, mainly from the National Association For the Advancement of Colored People, to equalize the quality of its educational institutions in order to comply with the constitutional requirements articulated by the Supreme Court in Plessy v. Ferguson. In 1945, the Maryland Commission on Higher Education recommended that African-Americans be admitted to the state’s all-white graduate schools and that funding for all-black colleges be increased to parity with that of the white schools. Harry “Curley” Byrd, President of the University.of Maryland from 1935 until 1953, agreed that funding should be equalized but was vehemently opposed to integrating the University’s graduate and professional schools: “Admission [of African-Americans] to the Graduate School would mean admission to College Park, and would destroy the very segregation [sic] idea for the undergraduate school.” In 1949, Byrd recommended privatizing UMCP rather than allowing black graduate students to enroll there. However, against the background of the two Supreme Court decisions requiring the admission of black students to segregated graduate schools in Oklahoma and Texas, Byrd’s suggestion was rejected and UMCP admitted its first black graduate student in 1951. Any further debate over the propriety of integrating the University of Maryland system was mooted by Brown v. Board of Education. Maryland’s reaction to Brown was restrained but unenthusiastic. Unlike other states where schools had been segregated by law, there was no policy of massive resistance and, in June of 1954, the University’s Board of Regents agreed to admit “all residents of Maryland without regard to race.” However, the state did little to promote integration. The Board of Regents, like the governing bodies of many other segregated state schools, pledged to admit black students, but imposed new admissions standards and required standardized testing of all applicants. Such requirements served to exclude African-Americans who might have otherwise been admitted during the first years after Brown. Similarly, in 1960, when the Governor proposed a complex plan to accommodate the growth of UMCP by converting several regional state colleges into additional branches of the flagship campus, no all-black colleges were considered for conversion, thus preserving the segregated character of College Park. Most importantly, UMCP simply made no effort to recruit African-American students. As the Board of Trustees of the Maryland State Colleges reported in 1969, “it is only recently that formerly white colleges [have] made more than perfunctory efforts at other race recruitment.” The result of this neglect was not surprising: “For a vast majority of parents and students the question of race simply does not arise. Rather, it is generally taken for granted by both black and white students and parents that the choice [of which college a student attends] takes place within the framework of colleges of one’s own race.” Not only did UMCP’s administration fail to take steps to integrate its campus in the decade and a half after Brown, it also failed to offer a particularly sympathetic ear to the concerns of the few African-American students who attended the University in the late fifties and early sixties. In 1963, a faculty committee refused to allow students to form an on-campus chapter of the Congress for Racial Equality. The following year the University discouraged Martin Luther King, Jr. from speaking on campus, and, that same year, the Dean of Student Life forbade campus chaplains from participating in civil rights activities. The environment in which black students found themselves during the early 1960s was notably inhospitable. The University, despite its worries about the effect that Dr. King’s presence on campus might have, permitted George Wallace to speak at the school in 1964. According to University historian George Callcott, Wallace attracted the largest crowd in the history of the University. “The emotional intensity” of the eight thousand students, Callcott wrote, “exceeded that of a football game.” Off-campus housing was completely segregated and when an integrated dormitory was established for a summer “citizenship” program in 1966, the Ku Klux Klan marched in protest. Considering UMCP’s institutional indifference to integration and the hostility of the campus climate, it is not surprising that black student enrollment stayed below 1% of the undergraduate population from 1954 until the end of the 1960s. In 1968, the United States Department of Health, Education and Welfare’s Office of Civil Rights (OCR) began pressuring the state of Maryland to integrate its institutions of higher learning. The University responded by establishing the Committee on Meaningful Integration. The initial recruitment plan proposed by the University offered enhanced academic programs at UMCP in order to attract African-American students from the state’s predominantly black colleges. Events between 1970, when the plan was proposed, and 1978, when OCR rejected the plan as “ineffectual”, demonstrated that the University was not committed to the “meaningful” integration that the name of the Committee promised. The University did not increase its financial aid expenditures to meet the needs of black students most of whom' came from low or moderate income families. Increased efforts to integrate UMCP’s dormitories, though ultimately successful, were met with resistance from the University’s Director of Housing, particularly over the issue of recruiting minority students to be resident assistants. The University failed to ^provide financial support for the building of black fraternity and sorority houses even though it had spent a million dollars to build ten white fraternities and sororities on campus during the late fifties and early sixties. Similarly, the facilities used to house black students programs, such as the black cultural center and the Intensive Educational Development Program, were substandard with inadequate heating and broken toilets. In 1972, Vice Chancellor Bratton, who had administrative control over the Office of Minority Student Education (OMSE), spoke of the difficulty of getting funding for programs aimed at recruiting and retaining African-Americans: Several of my colleagues, both within Student Affairs and the campus central administration, showed either naivete or resistance to the creation of a viable minority student affairs operation. Even now, including salaries, this office [OMSE] has only a $42,000 budget and this was literally drawn from the foot-kicking hides of everyone. My own staff deeply resented the transference of lines to create this operation [] and my experience with the budget committee when I went to them for all of $7000 for this effort still leaves me despondent. $42,000 is only .004% of the student affairs budget and .0005% of the campus budget and the reaction was unworthy of professional educators. As if UMCP’s financial neglect of the needs of African-American undergraduates was not enough of an obstacle to black recruiting, the University’s disinterest in attracting black students spilled over into the Admissions Office. The administration refused to establish a separate office of minority recruitment and provided only partial funding for the recently created Equal Opportunity Recruitment Program within the Admissions Office. Moreover, the Admissions Office itself was not particularly sympathetic to the cause of recruiting black students. As one black administrator wrote to the Chancellor of the University in 1972: The admissions counselors who have addressed themselves to minority recruitment find themselves working in an environment which is increasingly repressive and hostile. The hostility has reached such a level that the counselors without exception request their operation be placed in a different division of the University. Indeed, this hostility towards minority recruitment existed at the highest levels of the University administration. When the Chancellor’s Committee on Minority Education pressured UMCP to step up minority recruitment and retention efforts and to increase the amount of financial aid available to minority students, the administration dismissed the Committee’s report as “abusive, fuzzy, non-realistic and non-construetive” with recommendations that “sound like a parody.” In 1973, OCR rejected the 1970 Plan, concluding that, after three years, it was not successfully desegregating UMCP. OCR pointed out that the colleges in the Maryland State University system still retained duplicative programs and that the areas of specialization at historically black colleges reflected stereotypical notions of what were considered appropriate careers for African-Americans. The entire Maryland system of higher education could not be expected to desegregate, OCR wrote, while the traditionally black colleges offered specialization in areas that were notably less attractive than the programs at the state’s white universities. In some instances, the state seemed to be hindering the interaction of students of different races. The state, for example, set up a cooperative engineering program wherein students at the traditionally black Morgan State would take two years of courses towards an engineering degree at New York University despite the fact that the same program could have been arranged using UMCP’s college of engineering. After the rejection of the 1970 Plan, the state produced a new plan, proposing to increase efforts at minority recruitment, eliminate duplicative academic programs within the state, and set specific minority recruitment goals for UMCP. This revised plan was accepted in 1974, but a year later OCR threatened to start proceedings to terminate the state’s federal education funding because “Maryland has repeatedly failed to act in a manner which would indicate that it is executing the Plan promptly and vigorously.” The state successfully enjoined these proceedings until OCR promulgated guidelines setting forth specific standards for Title VI compliance. Even as the 1973 Plan was being implemented and as OCR developed criteria for Title VI compliance, the University took actions that hindered its own efforts at desegregation. The Office of Minority Student Education was • downgraded and its various components were transferred to other administrative units of the University. In 1978 the University’s Board of Regents approved a “Master Plan” for the University of Maryland system. Under this plan UMCP was to deemphasize the remedial aspects of its curriculum, reduce the size of the incoming freshmen class by emphasizing “quality over quantity”, and concentrate its resources on upper level education. Despite the 1973 Desegregation Plan’s goals for increased minority admissions, the Master Plan assumed that minority enrollment would remain stable. Nor did the Master Plan make any provisions for recruiting minority students or consider the adverse impact on African-American enrollment that UMCP’s new admissions requirements would have. Not surprisingly, in 1978, after developing criteria for Title VI compliance, OCR once again concluded that Maryland was not taking sufficient action to desegregate its institutions of higher learning. In 1980 the State voluntarily submitted a fourth compliance plan to OCR. In its 1980 Plan, UMCP revised its goals downward for the 1980 to 1985 time period. The State began setting its numeric goals for “other races” in terms of percentages of “first-time, full-time freshmen” rather than as percentages of the total pool of undergraduates. Thus, when UMCP set a range of 10% to 12% as its 1985 goal for other-race freshmen, that number was substantially lower than the 1974 Plan’s 13-16% figure for all undergraduates by 1980. The decision to focus on “first-time, full-time freshmen” was a curious one, given that the state recognized retention problems as possibly “the single most important equal educational opportunity issue facing the public higher education institutions in the State.” OCR staff concluded that Maryland’s submission did not amount to an honest attempt to meet Title VI: [T]he State has adopted enrollment goals which would cause some schools to be more racially identifiable in 1985 than they are now; has not moved to establish formal institutional missions which would distinguish one school from another on any basis other than the race of the students for whom the various schools originally were established; and has provided no specific steps which it will take to improve, enhance and enrich its TBIs [Traditionally Black Institutions] and therefore to assure equal educational opportunities for the students who attend those schools. OCR and the State continued negotiating and in 1985 the State submitted yet a fifth plan (the “1985-89 Plan”). The new Plan included specific reliance on the Benjamin Banneker Scholarship Program as one of UMCP’s most important recruitment efforts: The Benjamin Banneker Scholarship Program has been a valuable asset in the Campus’s efforts to recruit academically talented Black students. This program!,] which began in 1978, originally provided two-year scholarships with stipends of $1,000 per year. This scholarship has been expanded for a duration of four years for each recipient. For 1985-1989, these scholarships will be continued with approximately 20 new winners named each year. On June 3, 1985 OCR accepted the 1985-89 Plan as “compliance with Title VI for the life of the plan.” The 1985-89 Plan expired in June 1990. Maryland officials have issued their report on the 1985 Plan and are waiting for an OCR inspection to determine whether the State is finally in compliance with Title VI. Until this OCR inspection is completed — and until OCR notifies the State that it is finally in compliance with Title VI — the State has stated its intention to continue to abide by the 1985-89 Plan. Between 1954 and 1978, when the Banneker Program was instituted, the number of African-American undergraduates at UMCP grew from none to nearly 2000, making up 7.2% of the undergraduate population by 1978. In many ways, this growth took place despite the actions of the University. Whether manifested by the overtly racist comments of “Curley” Byrd, the absolute neglect of black recruiting during the sixties, the underfunding of African-American facilities, the institutional hostility towards the administrative units at UMCP responsible for desegregation, or the constant squabbling with the OCR, the University demonstrated at worst contempt for and at best grudging acceptance of its constitutional obligation to desegregate. It was only in the late 1970s, with the advent of the Banneker Program, that UMCP finally began to take meaningful steps towards integrating its campus. Indeed, it is only since the late 1980s that the University has made any genuine progress towards eliminating its single race status. III. Since William Kirwan became president of UMCP fifteen years ago, the University has earnestly taken steps to remedy its history of segregation. Its efforts have born fruit. African-American matriculation rates have slowly edged up so that blacks made up approximately 15% of the freshman class entering UMCP in the fall of 1993. Additionally, in 1990, UMCP ranked fourth among predominantly white universities in terms of the number of African-American students receiving degrees. Despite these accomplishments, UMCP’s April 1993 Decision and Report (the “D & R”) concluded that the Banneker Program should be continued. The D & R first identified four effects of the University’s past discrimination which persist into the present: (1) a poor reputation of the university in the African-American community, particularly among parents and high school counselors who influence students’ college choices; (2) underrepresentation of African-Americans in the student population; (3) low retention and graduation rates of African-Americans; and (4) perceptions of a campus climate that is hostile to African-Americans. The D & R next found that the Banneker Program has been successful in helping to overcome these vestiges of discrimination and that alternative remedies, specifically race-neutral merit scholarships or expanded need-based financial aid, would not be similarly efficacious. Finally, the D & R required that the Banneker Program be reviewed and evaluated at least once every three years to determine whether its goals have been achieved and whether it should be continued. rv. The Fourth Circuit affirmed my prior ruling that the Banneker Program must be subjected to a strict scrutiny test under the equal protection clause of the Fourteenth Amendment. -Accordingly, the Program must serve “a compelling governmental interest” and must be “narrowly tailored to the achievement of that goal.” Podberesky II, 956 F.2d at 55. ' The Fourth Circuit explained that in order to meet the “compelling governmental interest” element of the test, defendants must show that there is a “strong evidentiary basis for concluding that remedial action is necessary.” The Court did not define precisely what a “strong evidentiary basis” is but plaintiff concedes that the standard is somewhat less than a preponderance of the evidence. The present effects of past discrimination need not be widespread or pervasive. There must only be “strong” evidence of “some ” present effects. Id. at 57. Thus, if there is a strong evidentiary basis for any one of the four present effects of past discrimination which UMCP found to exist, that would be sufficient to sustain the, Banneker Program. For the reasons which follow, I am of the view that all four of UMCP’s findings are supported by strong evidence. A. The first present effect of past discrimination found by UMCP in its Decision and Report is the University’s continuing poor reputation in the African-American community, particularly among parents, high school counselors and prospective students. 1. The Evidence Relied Upon By UMCP As part of the process leading to the issuance of its Decision and Report, UMCP commissioned an evaluation of the Banneker Program by Walter R. Allen, a sociology professor at the University of California— Los Angeles. Allen, in preparing his study, interviewed high school guidance counselors and conducted four student focus groups. One counselor told Allen that in the past the University “wasn’t a friendly place for Blacks to be. They didn’t want you to be there.” Another said: “I don’t feel good about College Park ... yet.” The students confirmed that .these impressions were conveyed to them by their elders. According to Allen, “the single most vivid image they had of College Park prior to attending the campus was that it was ‘an all-white university.’ This common perception they said, was the university’s- ‘reputation.’ ” Id. at 34. Thus, Allen concluded that UMCP “is in large degree burdened by its history when it comes to recruiting Black students.” Id. at 30. Joe R. Feagin, a race relations consultant, prepared two reports for UMCP, one focusing on the views of African-American parents and the other on the views of African-American students. The first report was based upon a series of focus groups consisting of black parents of college age children. Eighty-three percent of the participants in these groups indicated on an exit questionnaire that the reputation of UMCP is “mostly negative” or “somewhat negative.” Feagin Report I, at 7. Seventy-six percent of the parents “tended to agree” or “strongly agreed” that “in the past, historically, the University of Maryland at College Park has done a poor job of serving the black community and black students.” Individual comments made during the course of the focus group proceedings confirmed these views. For example, in one of the focus groups of African-American parents, the following exchange occurred: Black parent (male): I’m old enough, I’m old enough to remember when practically every teacher in ... Maryland graduated from Morgan. You know so it wasn’t a lot of options at one time, you know. Black parent (male): Looking back I was raised here, and I’ve been in Montgomery County most of my life, and I can remember people applying to University of Maryland, and they would be referred to, because of their race, you know, wouldn’t you be more comfortable at Maryland' State, which was the university of Eastern Shore, or Morgan, or Bowie. They would invariably try to refer you to a black school. Black parent (female): It is, that’s true. It’s true it is. They would do that. If you go to them they would refer or they would recommend or suggest that you go to another college. Feagin Report I, at 13-14. Similarly, the remarks of one of the participants in a student focus group illustrate the importance that the perceptions of parents play in forming their children’s views of UMCP. I had so many like people my parents age and people older than that going, “Oh girl don’t go there” you know people just telling me that it was the worst place for me to go. “Go to UMBC. Go to _ Well Eastern Shore was the one they kept telling me to go to since it’s predominantly ■ black____ [Focus group leader: Do you know what made them say that?] Well, College Park didn’t have it’s first student, I think it was a graduate student, till like the mid-sixties. The first black student, I mean, and the environment just wasn’t conducive I guess to black students. So it’s just the kind of thing, that we knew we weren’t wanted here. I guess that’s what they meant. Feagin Report II, at 9-10. The experience of UMCP officials involved in recruiting black students provides equally solid evidence of University’s poor reputation among African-Americans. James Newton, the Acting Assistant to the Vice-President of Academic Affairs at UMCP, has stated: I was bom in 1947, and until 1975 I had never set foot on the College Park campus, even though I lived only 34 miles away. I was familiar with College Park’s history as a segregated campus: I heard stories from my wife’s sisters, who are black, about College Park as the institution that told them they were not welcome as graduate students there and as the institution that received funding from a State that sent my in-laws to go to graduate school in New York rather than allowing them to attend UMCP. I did not regard the College Park campus as a place that would-welcome me as a black student or a black teacher____ It was during my one year at UMCP that I learned first hand about the way teachers, administrators and students in Baltimore City perceived UMCP. I spoke to those individuals in my capacity as a UMCP recruiter. I was told by many teachers, principals and counselors that they were not welcome in the 1950’s to perform graduate work at the College Park campus. These individuals, of course, were the ones who were advising black students in 1976 (and in some eases still are rendering that advice today) on the colleges these students should attend. Almost invariably, the college would not be College Park. Those students would be encouraged instead to attend one of the State’s historically black colleges because these high school principals and counselors did not feel that blacks would do well or be welcomed at UMCP. The principals and counselors with whom I spoke expressed the fear that blacks would not be treated fairly by faculty, who in many instances exhibited negative expectations toward black students. For these reasons, principals and counselors simply did not believe that the black students in their schools could be successful at UMCP. Even though I-tried to point out the opportunities available at College Park- for black students, the administrators I spoke to were not telling the students to- look at College Park because they believed it was not a good place to go based on their own, negative experiences, and based on similar experiences of their former students, whose feedback over the years indicated that life at UMCP for blacks had not significantly changed over time. Def. Ex. 10, ¶¶ 6 and 8. To similar effect is.the affidavit testimony of Mary E. Cothran, Director of the Office of Multi-Ethnic Student Education at UMCP. In 1980, when I began working in undergraduate admissions, one of the top priorities at UMCP was to increase the presence of blacks in the student body and enhance their experiences. This was no small task, particularly because the community perceptions at that time were that UMCP was not open to or supportive of black students. The African-American community, including but not limited to Montgomery County civic groups and public school groups, did not believe that black students would do well at UMCP. Many of the high school counselors and community leaders with whom I spoke encouraged black high school students to attend other schools rather than the University of Maryland because of this school’s history of segregation. As stated earlier, it was mainly parents, counselors and students from outside Maryland who perceived UMCP as a positive educational environment____ Def.Ex. 11, ¶ 7. Linda Clement, the Director of Undergraduate Admissions at the University, concurs: The University’s history of segregation continues to affect its ability to recruit Black students. Parents, counselors and others who influence the student’s choice of undergraduate institutions recall that history. Such notoriety continues to impact reputation; reputation once developed is difficult to modify, especially in significant ways. The Banneker Program is a concrete rebuttal to charges that the University’s commitment is superficial or rhetorical. Without it, not only will the University’s desegregation efforts be severely hampered and some of the results be eliminated, but the University’s diversity efforts will similarly be retarded. Of necessity, desegregation and diversity goals overlap in the function of this University. Def.Ex. 9, ¶33. 2. Plaintiffs Arguments The arguments that plaintiff advances in an effort to overcome this evidence are insubstantial. First, he presents evidence of his own intended to show that UMCP does not have a bad reputation among African-Americans: two surveys of black high school students, one survey of African-American students at UMCP, response cards mailed in by students who have decided not to attend UMCP and the affidavit of John Roth, a counselor at the high school that plaintiff attended. The surveys, conducted by a high school junior, a sophomore architecture and government major at UMCP, and a freshman at Montgomery College, are methodologically flawed because they are not taken from truly random samples of students and because the surveyors made no effort to follow up on the responses. The information provided by the response cards is of little value in this context since it asks no questions designed to elicit relevant information. While Roth may sincerely hold the views that he expresses, it does not contradict the contrary views expressed by many other counselors and parents and the actual experience of UMCP officials responsible for recruitment. In any event, in determining the constitutionality of the Banneker scholarships, the question is not whether plaintiff can find some scatterings of information to support his position but whether there is a strong evidentiary basis for the conclusions reached by UMCP. Second, plaintiff posits that a review of the transcripts of the various focus groups upon which the Allen and Feagin Reports are based discloses (1) that researchers asked questions designed to elicit negative responses about UMCP, and (2) that, nevertheless, positive statements about the University were made. It may be fair to say that in writing the body of their reports neither Allen nor Feagin (particularly the latter) appears to have been self-critical about his own biases and predispositions. It may also be in the nature of focus groups to generate self-perpetuating momentum. However, the transcripts do not reveal that unfair leading questions were asked as a means of obtaining slanted responses. Moreover, plaintiff has cited only one example of an allegedly positive remark about the University; it related to UMCP’s reputation as a place for black athletes to go to “prepare for professional sports.” Pl.Ex. 47 at 28. Third, plaintiff baldly asserts that the evidence does not establish any causal link between past discrimination and the University’s present poor reputation among African-Americans. Given the University’s history of discrimination, this assertion defies belief. It is also specifically belied by statements made by participants in the focus groups and by the experience of UMCP officials responsible for recruitment of African-Americans. Fourth, plaintiff contends that since African-Americans are not underrepresented at UMCP, any poor reputation that the University may have is of no practical effect. This contention erroneously assumes (as discussed infra section IV.B.) that African-Americans are not underrepresented at UMCP. Moreover, even if African-Americans were not statistically underrepresented at College Park, the existence of the University’s poor reputation among African-Americans would nevertheless have an adverse effect by reducing the pool of black students from which it can draw. This would have the strong potential effect of decreasing the number of high-achieving African-American students at College Park, contributing to racial stereotyping that perpetuates an adverse ’ racial climate which, in turn, hampers UMCP’s efforts to retain African-American students. Finally, plaintiff cites two cases, Brunet v. City of Columbia, 1 F.3d 390 (6th Cir.1993) and Hammon v. Barry, 813 F.2d 412 (D.C.Cir.1987), as standing for the proposition that racial discrimination that occurred many years in the past cannot, as a matter of law, be found to cause present effects. If that were the law, then the Fourth Circuit has asked me to engage in an academic exercise on remand. In any event, plaintiff misreads Brunet and Hammon. All that these cases held was that under the particular facts presented, the past discrimination was too remote to support a finding of present effects. Here, the evidence is overwhelming that a poor reputation of UMCP among African-Americans persists. B. The second present effect of past discrimination that UMCP has found to exist is the underrepresentation of African-Americans in its student body. The historical data behind the finding is succinct, startling and undisputed. “Prior to 1954, there were virtually no African-American students on campus. The end of de jure segregation produced no visible changes. As late as 1969, fifteen years after Brown was decided, fewer than 1% of the students at the University were African-American. In 1970, 3.4% of the University’s full-time undergraduates were African-American; in 1975, 6.8%; in 1980, 7.5%; in 1985, 8.6%; in 1990, 11.2%.” Decision and Report at 15-16. The percentages of incoming freshmen at UMCP who have been African-American are comparable, ranging from 6.6% in 1974 (the first year in which that statistic was kept) to 10.5% in 1985. Because of the efforts that the University has been making, this figure increased to 15% in 1990. It dropped to 13% and 11.3% in 1991 and 1992, respectively, but again reached 15% in 1993. Def.Ex. 72. 1. Selection of a Reference Pool The question of underrepresentation requires, of course, the selection of a reference pool of eligible candidates against which the level of representation can be measured. Croson, 488 U.S. at 501-02, 109 S.Ct. at 726. Maryland Troopers Association, Inc. v. Evans, 993 F.2d 1072 (4th Cir.1993). Plaintiff alleges that the reference pool should be composed of graduating high school seniors who meet all of what he alleges to be the minimum requirements for admission to UMCP: completion of the required high school course curriculum, maintenance of a 2.0 grade point average and attaining a verbal S.A.T. score of 270 and a math S.A.T. score of 380. UMCP has not presented evidence of the percentage (in relation to all graduating high school seniors in Maryland) of African-American students who have met all four of these requirements, and thus, according to plaintiff, UMCP has not met its burden of proving that African-American students are underrepresented in the student body. An affidavit submitted by UMCP’s Director of Admissions as well as the University’s published Policy on Admissions, establish that, in fact, the University does not have rigid minimum admissions requirements. Def.Ex. 9, ¶ 6. Def.Ex. 108. Thus, the class of potential applicants defined by plaintiff is artificial. Focusing upon the 1991-92 year— the period for which the most extensive data is available — UMCP recites a number of statistics suggesting that the relevant reference pool should be much larger. Those statistics demonstrate that (1) 27.1% of the graduating high school seniors in Maryland were African-American, (2) 22% of the students taking the S.A.T. in Maryland were African-American, (3) 17.9% of the students who graduated with a course curriculum meeting the University’s general requirements were African-American, (4) 18.1% of all Maryland S.A.T. takers who scored over 380 on the math S.A.T. were African-American and (5) 19% of all Maryland S.A.T.-takers who scored above 270 on the verbal S.A.T. were African-American. In contrast, 13% of the incoming freshmen at UMCP in 1991 were African-American. Def.Int.Ex. 37. There is a danger (created in part by the images of microscope and magnifying glass which the term “strict scrutiny” brings to mind) that a judge will become myopic when confronted with statistics such as these and assume that a single reference pool must be selected. In fact, such a narrowing of perspective is neither necessary nor proper. Rather, the judge should look at the statistics as a whole to determine if they provide strong evidence of the existence of present effects of past discrimination. Here, minimum admission requirements, even though subject to waiver in particular cases, cannot be entirely disregarded. If UMCP did not consider the qualifications of applicants, it would inflate its admission rates but doom its attempts to increase its retention and graduate rates to failure. On the other hand, the admissions process contains too many variables to define the reference pool by inflexible objective criteria which, in fact, are not mechanically applied by the University. Moreover, use of a pool defined exclusively by a high school G.P.A. and S.A.T. results would itself disguise the fact that the substandard, segregated education of many parents of the current generation of African-American students directly impacts the G.P.As and S.A.T. scores of UMCP’s current black applicants. Education is a continuous and expanding process in which knowledge, skills and attitudes towards learning are communicated from one generation to another. Unfortunately, we still live in a time when many African-Americans of college age are disadvantaged in this respect because their forbears received an inferior education under Maryland’s segregated . school system, of which UMCP stood at the top. Considering the evidence as a whole, I have no difficulty in finding a strong evidentiary basis for UMCP’s finding that African-American students are underrepresented at College Park. The 27.1% figure relating to all graduating high school seniors would not be an appropriate benchmark because it does not take into account even flexible minimum admission requirements. On the other hand, the unknown figure advocated by plaintiff based upon strict numerical scores is likewise an improper measure since it ignores the variables in the admissions process and the intergenerational effects of segregated education on the applicant pool. Using the 1991-92 school year as the prototype, the remaining scale of percentages ranges from 17.9% (percentage of African-Americans meeting general course curriculum requirements) to 22% (the percentage of African-Americans taking the S.A.T.). All of these compare unfavorably to the percentage (13%) of incoming freshmen at UMCP who were African-American that year. Moreover, it is improper to analyze the statistics for any single year — the dimension of time must be considered. -Thus, it cannot be forgotten that although UMCP in recent years has made substantial efforts to increase the number and percentage of African-Americans whom it enrolls as freshmen, it was not until 1983 that the percentage reached 10% and not until 1989 that it reached 15.8%. It has fluctuated since that time. 2. Comparison with northern institutions Plaintiff further argues that since the percentage of black undergraduates at UMCP is comparable to the percentage at public universities in states that “have not had segregated higher education systems”, it is impossible to prove that the underrepresentation at UMCP is related to its past discriminatory acts as opposed to some present societal condition that affects both northern and southern universities. Plaintiff’s argument is flawed for several reasons. First, universities are not fungible. Each has its own institutional history, and plaintiff has presented no evidence concerning the histories of the universities he alleges to be comparable. Second, most of the states whose universities plaintiff alleges are comparable to UMCP have smaller black populations than does Maryland. Thus, the fact that Maryland’s percentage of enrollment exceeds theirs is of little import. Most importantly, plaintiffs assertion that northern universities do not have a history of segregation is unproven and wrong. While northern states did not have de jure segregation, the admissions policies of nearly every northern college and university excluded African-Americans from college campuses almost as effectively as the legal requirements of segregation in southern states. Between 1826 and 1910, only 693 blacks were graduated from predominantly white colleges. This minuscule number was not due to a lack of qualified candidates. By 1930, predominantly black colleges were graduating approximately 19,000 students a year. Even the City College of New York, which had no admissions requirements and an institutional mission to serve the poor, had only two black graduates by 1910. In fact, the vast majority of predominantly white colleges did not begin admitting African-Americans until after World War II. Even after the Second World War, northern colleges admitted only a tiny quota of black students each year. By 1954, African-Americans made up only 1% of freshmen at predominantly white institutions. This percentage did not increase above 2% until the late 1960s. Not surprisingly, the tiny portion of black college-goers who matriculated at predominantly white institutions before the late 1960s found themselves in profoundly inhospitable environments, even at the most “progressive” liberal arts colleges. Forced to live in segregated housing, excluded from white social events and institutions, and often banned from participating in intercollegiate athletics, African-Americans at northern universities led lonely, secluded lives. As George Davis, an African-American writer and educator, -wrote about the life of a black student at a small liberal arts college: “[F]or four years he had felt distant and detached in this fragile, alien environment____ [T]he white students looked the same as the ones he had known.... They were still the same healthy, unmenaced children of the rich that made his life so lonely for four years.” Considering this extensive record of de facto discrimination on northern college campuses, plaintiffs comparison of UMCP to its peer institutions in the north fails to prove that the University has no present effects of past discrimination. Both northern and southern institutions of higher education have practiced discrimination against African-Americans. Thus, the argument that, as far as racial issues are concerned, UMCP is more like a northern university than a southern one, even if assumed to be true, does not eliminate the possibility that racial problems at College Park are the present effects of past discrimination. To the contrary, there is no reason to assume that, considering their history of discrimination, northern universities are not themselves now experiencing the present effects of past discrimination. C. The third present effect of past discrimination that UMCP has found is that African-Americans have a disproportionately high attrition rate. I hold that there is a strong evidentiary basis for this finding. The attrition rate for African-American students at UMCP is substantially higher than it is for students who are not African-Americans. For example, for freshmen entering UMCP in 1989, only 62.4% of the black freshmen remained at College Park after three years in comparison to 74.5% of the white freshmen and 73.4% of the total 1989 freshmen population. Even larger disparities exist with respect to the relative graduation rates of African-Americans and other groups. For freshmen entering UMCP in 1986, only 42.5% of the black freshmen graduated after six years in comparison to 66.5% of the white freshmen and 63.5% of the total 1986 freshmen population. No other identifiable group at the University has such low retention and graduation rates. Def.Exs. 35-41. Plaintiff does not challenge the accuracy of these statistics. Rather, he argues (as he does elsewhere) that since the retention and graduation rates at UMCP are comparable to those at northern universities that have no history of de jure segregation, they cannot be said to be an effect of the University’s past discrimination. This argument fails for the same reason as it does in other contexts: it is based upon the erroneous assumption that there was no defacto- segregation at northern universities. See supra section TV.B.2. Plaintiff also suggests that low African-American retention and graduation rates can be explained by the fact that, because of an admissions preference given to African-American’s in UMCP’s admissions process, blacks who get into the University are generally less qualified than whites. However, the record establishes that even controlling for S.A.T. scores, African-American retention and graduation rates are lower than white retention rates; given a group of people with the same S.A.T. scores, a higher percentage of blacks drop out than whites. Def.Ex. 114, table 12. Left unexplained by plaintiff, the low retention and graduation rates among African-American students stand as perhaps one of the strongest testaments to the continuing racial problems which UMCP faces. If no effects of past discrimination remained, one would expect the relative retention and graduation rates of blacks and non-blacks to approximate one another. Undoubtedly, one of the factors that contributes to the high attrition rate among African-American students is that many of them are less wealthy than their white counterparts and cannot continue their education at the University because of financial hardship. Plaintiff would argue that, despite the adverse impact of educational deprivation upon employment opportunities, this is of no moment because economic disparity among the races is an effect of “societal discrimination” which UMCP is not permitted to remedy by a race-based scholarship program. See Croson, 488 U.S. at 498-500, 109 S.Ct. at 723-25; Wygant 476 U.S. at 274-76, 106 S.Ct. at 1847-48. Even assuming this to be true, it is not only financial hardship that leads students to leave college before graduation. In given cases an absence of commitment to the school because of its poor reputation in the community from which a student comes, the lack of shared experience with family members to help the student through the arduous process of higher education, the absence of African-American members of the faculty to serve as mentors and the existence of a hostile racial atmosphere on campus are other significant contributing factors. Def.Ex. 114. These conditions are all directly attributable to Maryland’s history of segregated education of which UMCP was an integral part. D. The fourth present effect of past discrimination which UMCP has found to exist is a prevailing perception that the climate on the College Park campus is hostile to African Americans. Again, there is a strong evidentiary basis in the record to support this finding. A study commissioned by the University in 1989 (before plaintiff filed this suit) concluded that there is a “chilly climate for Blacks at UMCP” manifested by complaints of racism made to the University’s Office of Human Relations, by overtly racist comments by faculty and teaching assistants, by the lack of African-American leaders on campus, and by the failure of campus media entities to cover the accomplishments of black faculty, staff, and students. Def.Ex. 17 at 10-16. Responding to this report, the University commissioned an in-depth study of race relations on campus. An overwhelming majority of black students (86%) surveyed said that race relations between students were a problem at UMCP and 89% of these students said it was a very serious or somewhat serious problem. A smaller majority of white students (56%) said that race relations were a problem on campus. Def.Ex. 34 at 111. Other findings indicated that there was a perception that anti-black behavior was frequently exhibited on campus: —82% of black respondents- (including both faculty and students) and 68% of white respondents reported observing “racial role stereotyping of black students by students often or sometimes.” —50% of black students and 29% of white respondents reported that they have observed hostility by students towards black students often or sometimes. —34% of black students and 20% of white students reported observing often or sometimes exclusion of black students from social events “because of race.” Id. The student focus groups conducted by Dr. Feagin yielded similar results. Eighty-nine percent of the students Feagin interviewed “disagreed” or “tended to disagree” with the statement: “the University of Maryland at College Park is a college campus where black students are generally welcomed and nurtured.” Feagin Report II, at 10. Comments by students in these focus groups evidenced the existence of condescending attitudes and mistreatment by faculty members, and casual use of racial epithets by students. Another student reported simply feeling invisible on campus: So I got my yearbook ... [a]nd I’m going through it and I’m not seeing very many black people and the one — they had a picture of like I think blacks in pre-med. That was the only black scholastic organization that they had. They had two pages for the homecoming step show, that was ■about it. They did their traditional dorm life, students moving in, all this for white students like I guess black students didn’t move in. They, like, landed on the roof and snuek in, into the dorms____ But yet it’s part of the yearbook. You know, glorifying their life and their recreational activities, and where black students aren’t even represented in the yearbook. Id. at 18. A segregated atmosphere continues to permeate UMCP’s campus. Students segregate in the dining halls and classrooms, and African-American students feel that they are not welcome at fraternity parties, bars, and the student newspaper. Detriek, Still Suffering from Racism, UMCP Diamondback, April 26, 1989 at 1. Def.Ex. 13 at 23. Def.Ex. 7 at 23. Def.Ex. 90, ¶ 3. Def.Ex. 13 at 11. Separate homecomings exist for whites and blacks. Def-Int.Mem. at 44. Academic segregation also exists, with very few black students getting degrees in the sciences and other technical fields. Def.Ex. 43, table 16 (showing that African-American comprise only 1% of the degrees awarded in mathematics, architecture, and the physical sciences). In the face of this evidence of an adverse racial climate at UMCP, the main dispute between the parties is as to whether this climate is the result of the University’s past discriminatory acts. Several of the experts who testified before the University’s administrative hearing linked UMCP’s adverse racial climate to its history of de jure and de facto segregation. Def.Ex. 18 at 28. Def.Ex. 13 at 2-3. Def.Ex. 14 at 12, 25. Even more convincing evidence of the historical origin of UMCP’s adverse racial climate is provided by the stream of racial incidents that have continuously marred the University since de facto segregation ended in the early 1970s. Professor William Sedlaeek examined UMCP’s school newspaper from 1970 to 1991 and kept count of articles, commentary and letters to the editor that had “negative implications” for African-American students. These included reporting on racist incidents, racist letters- to the editor and articles, commentary arid letters highlighting black academic failure, preferential treatment, and social isolation. Def.Ex. 15 at 38-40. The quantity and regularity of these articles and the fact that they have continued unabated since UMCP began desegregating strongly suggests that the University’s adverse racial climate is a legacy of its past discriminatory practices. Cf. United States v. Fordice, — U.S.-, - n. 4, 112 S.Ct. 2727, 2736 n. 4, 120 L.Ed.2d 575 (1992) (holding that continuing racial identifiability is probative as to whether a state has dismantled its segregated system of higher education). Universities necessarily have cultures that span several entering classes, and generations of college students cannot be separated from one another. The very nature of the college experience is that younger students learn from older ones. Accordingly, the causes of a hostile racial climate cannot be divided into discrete cabined units, as plaintiff seeks to do. Since 1970, both black and white students have been handing down racial attitudes that perpetuate a hostile racial climate. Even if the continuous stream of racial incidents is not enough to link UMCP’s present racial climate .with past discrimination, a close examination of the sources of racial tension on campus reveal that they are intimately related to UMCP’s past discrimination. Many of the disputes between white and African-American students since the end of de facto segregation have been over UMCP’s attempts to integrate or its failure to do so. As the University has attempted to equalize the funding between black student organizations and white student organizations, white students have lashed out at black students. When the University has taken actions that the African-American community at College Park perceives as scaling back desegregation, African-Americans have lashed out at the University. If the University had not been segregated, if it had always supported black and white fraternities and sororities equally, and if it had funded the cultural activities of all groups on campus equally, then there would be no need for the present day actions that the University must take to rectify these problems which are contributing to racial tension. V. In my earlier opinion I found that the Banneker Program is “narrowly tailored” to remedy the effects of past discrimination that continue to exist at UMCP. In its opinion the Fourth Circuit did not reach that issue. However, it questioned in passing the scope of the Program, indicating that while “the program may be valuable as a recruitment tool, ... the value of the much-expanded program, as opposed to the program in its more limited form or other non-race-based remedies, is not clear.” Podberesky v. Kirwan, 956 F.2d at 57 n. 7. In United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203 (1987), the Supreme Court established a framework for addressing the “narrowly tailored” question. It identified four criteria by which to judge the nexus between a remedial plan and the interest it purports to serve: “the necessity for relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.” 480 U.S. at 171, 107 S.Ct. at 1066. I will briefly consider each of these factors. 1. The Necessity For Relief And The Efficacy Of Alternative Remedies UMCP’s finding that the consequences of its segregative past continues to be felt ipso facto establishes the necessity for relief. However difficult other issues in this case may be, no one would contend that a public university may simply ignore present effects of past discrimination for which there is a strong evidentiary basis. Similarly, it cannot be seriously contended that the Banneker Program is not extremely effective in remedying the problems which UMCP has found to exist. By attracting high-achieving black students to the UMCP campus, the Program directly increases the number of African-Americans who are admitted and likely to stay through graduation. Even more importantly, the Program helps to build a base of strong, supportive alumni, combat racial stereotypes and provide mentors and role models for other African-American students. Continuation of the Program thus serves to enhance UMCP’s reputation in the African-American community, increase the number of African-American students who might apply to the University, improve the retention rate of those African-American students who are admitted and help ease racial tensions that exist on the campus. UMCP has considered the two alternatives which plaintiff espouses and has concluded that they would not be nearly as effective as the Banneker Program in remedying the problems that continue to exist. The first of these alternatives — a race-blind merit-based scholarship program based upon conventional criteria such as high school G.P.A. and S.AT. scores — would not result in a sufficient number of African-American students receiving scholarships to have the necessary curative effects. This fact is established conclusively by UMCP’s experience with the Key Scholarship Program which is race-neutral and merit-based. In 1992, out of thirty-six Key Scholarships awarded, African-Americans received two, Asian Americans received ten, Hispanies received one and whites received twenty-three. In 1991 twenty-seven Key Scholarships were awarded: two to African-Americans, five to Asian-Amerieans, one to Hispanies and the remainder to whites. In 1990 fifty-two Key Scholarships were awarded; African-Americans received two, Asian-Americans received seven, Hispanies received two and whites received forty-one. In 1989, forty-seven scholarships were awarded: one to an African-American, three to Asian-Americans, two to Hispanies and forty-one to whites. Def.Ex. 9, ¶29. The second possible alternative — expansion of need-based scholarships on a race-neutral basis — would likewise be ineffective in achieving the purposes for which the Banneker Program is designed. UMCP does not shy away from the fact that the Banneker Program is a recruiting tool. As analyzed by the University, its success in curing the vestiges of its past discrimination depends upon it attracting high-achieving African-Americans to the College Park campus. Because such students often come from middle-class families and would not qualify for financial assistance, an increase in racially-neutral financial aid packages would lack the same remedial effect. Indeed, UMCP’s experience with the Frederick Douglass Scholarship Program — which provides need-based awards solely for African-Americans — demonstrates that African-Americans meeting the Banneker qualifications are not drawn to College Park by such a need based program. Def.Ex. 1A at 49-50. 2. The Flexibility And Duration Of The Relief The Banneker Program is not “flexible” to the extent that it is limited to African-Americans. This characteristic is by definition common to all affirmative action programs. Indeed, if a program were to benefit persons jof a class that was not