Abstract

Excerpted From: Joshua Goslee, Unmasking Inequity: The Underfunding of Historically Black Institutions and the Judicial Response, 48 Thurgood Marshall Law Review 299 (2024) (132 Footnotes) (Full Document Requested)

In recent years, a wave of legal challenges has emerged, shaking the foundations of higher education as Historically Black Land Grant Institutions and other Historically Black Colleges and Universities (“HBCUs”) find themselves at the center of legal debate. Allegations of systemic underfunding, exacerbated by the allowance of program duplication at Predominately White Institutions (“PWIs”), have prompted a series of court cases across the nation. Under the lens of the Second Morrill Act--which earmarked Land Grant funding for these institutions--HBCUs were promised financial support that, in reality, has been consistently diverted, leaving them disproportionately disadvantaged. As the legal landscape becomes increasingly dotted with court cases aimed at rectifying the disparities in funding, the focus sharpens on the historical perpetuation of “inadvertent,” de facto segregation within the educational system that is “not caused by any state action.”

Historically, Land Grant funding was designated to uplift HBCUs, encouraging educational equity in the aftermath of the Civil War. However, a stark contrast between intent and reality has emerged, with funds trickling in as a mere fraction of what was promised or eluding these institutions altogether. Compounding the issue, the replication of programs at PWIs siphons off resources that were earmarked for the enrichment of HBCUs, leaving them in a perpetual state of financial disparity.

The Biden Administration's revelation that HBCUs in Maryland, Tennessee, and fourteen other states have been deprived of billions of dollars in funding over the last three decades underscores the magnitude of this issue. Tennessee State University alone faces an underfunding gap of $2.1 billion, while the University of Maryland Eastern Shore grapples with a shortfall exceeding $321 million. This stark reality has prompted the Secretaries of Education and Agriculture to call upon governors to rectify these funding inequities, highlighting the critical impact on campus infrastructure, research and development, and student support services.

This note embarks on a comprehensive exploration of the intricate relationship between the underfunding of HBCUs, the evolving judicial scrutiny surrounding due process, and the legal battleground that has unfolded across the nation. States such as Maryland, Tennessee, and Florida have emerged as pioneers in challenging these disparities within their circuit courts, and the legal landscape surrounding the rights of HBCU students, faculty, and the broader community is constantly evolving. This note will explore the disconcerting reality where the promises of the Second Morrill Act, intended to secure financial support for these institutions, remain largely unfulfilled. The courts are revisiting their stance on this critical issue, recognizing the inherent constitutional implications and the profound infringement on students' rights. Central to this examination is an analysis of the evolving jurisprudence surrounding due process and, more specifically, the specter of intentional, de jure segregation that continues to cast its shadow over the educational landscape.

Through a lens of constitutional rights, this note endeavors to dissect the evolving stance of courts across the country on the underfunding of HBCUs. As inequitable funding undermines the Fourteenth Amendment rights of students attending these institutions, legal battles are reshaping perceptions of justice, accountability, and the constitutional responsibilities of states in the realm of higher education.

As the legal pendulum swings towards justice, this note aims to illuminate the complex web of historical neglect, legal challenges, and shifting court perspectives that underpin the struggle for equitable funding for HBCUs. This note also seeks to explain the root causes of this issue and establish a framework ensuring equitable support of these institutions for generations to come.

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The historical trajectory of underfunding and misallocation of resources for Historically Black Land Grant Institutions stemming from the Second Morrill Act reveals a persistent pattern of systemic discrimination and its extensive consequences. Legislation--while superficially aimed at providing educational opportunities for Black students--became a vehicle for the perpetuation of racial disparities in higher education. The diversion of funds, which has often been facilitated by loopholes and waivers, has impeded the growth and potential of HBCUs. This has limited their capacity to offer quality education, conduct research, and compete on an equal footing with predominantly white institutions. The unequal distribution of funding has not only hindered the academic and research capabilities of HBCUs, but has also resulted in a broader societal impact, affecting economic activity and preserving racial inequalities.

Recent court decisions, as well as efforts by the Biden Administration and key state officials, demonstrate a growing recognition of the funding imbalances and a commitment to rectify them. However, the road to equity remains challenging, as evidenced by court cases highlighting the need for states to dismantle discriminatory policies and practices traceable to the era of de jure segregation. The violation of the Fourteenth Amendment's Equal Protection Clause is a central concern, as underfunding constitutes a constitutional infringement on the rights of students attending HBCUs. The historical context of Brown v. Board of Education, Sweatt v. Painter, and subsequent legal precedents underscores the obligation of states to address these disparities and ensure equal educational opportunities for all. The examination of de facto segregation in the context of education funding, post-de jure segregation, reveals a persistent cycle of underfunding, leading to program inadequacies and reinforcing racial disparities. Also, the link between funding and de facto segregation emphasizes the urgent need for policy recommendations that address not only financial disparities but also the systemic issues contributing to unequal treatment of HBCUs.

Policy recommendations include a call for increased state and federal funding for HBCUs, recognizing their crucial role in educating vulnerable student populations. The elimination or stricter regulation of waivers, coupled with efforts to curb unnecessary program duplication, can also contribute to promoting a more equitable educational landscape. Addressing the historical injustices embedded in the funding of HBCUs requires a comprehensive approach that combines legal interventions, policy reforms, and a commitment to dismantling the remnants of de jure segregation. The path forward involves acknowledging the unique contributions of HBCUs, rectifying funding imbalances, and fostering an inclusive and equitable higher education system for all students.