Laslo Boyd: Say No to SB 169

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By: Laslo Boyd 

A bad legislative proposal, unlike fine wine, does not improve with age.  Variations of a bill to rewrite the rules for determining if there is “unnecessary” duplication of academic programs at universities in Maryland have been introduced going back as far as 2006.  This year’s entry, SB 169, contains all the flaws of the earlier efforts and is actually worse because it runs the risk of getting entangled in an ongoing lawsuit.

The lead sponsor of the bill, Senator Joan Carter Conway, is concerned that the state’s four historically black colleges and universities (HBCUs) are at a competitive disadvantage to Maryland’s other public universities in terms of the appeal to students of their academic program offerings.   The issue she raises is a long-standing one and involves years of negotiation between the State and the U.S. Department of Education’s Office of Civil Rights, as well as a Supreme Court case from Mississippi whose conclusions have been applied to Maryland.

Conway also has on her side the fact that she chairs the Senate’s Education, Health, and Environmental Affairs Committee.  That position gives her quite a lot of leverage with her Senate colleagues.

SB 169 received a favorable report from Conway’s committee earlier in February.  It then passed Second Reading in the full Senate on February 7, despite the opposition of Senate President Mike Miller and the prospect of an uncertain future in the House of Delegates.  On February 11, Conway asked that the bill be recommitted to her Committee, a step that is usually the end of the line for a legislative proposal.

As I write this column, the prospects for SB 169 are not entirely clear.  Nevertheless, the reasons that this bill should not be passed by the General Assembly are worth reviewing.

Under Conway’s bill, the state’s four HBCUs could ask the Maryland Higher Education Commission (MHEC) for a finding that “unnecessary” program duplication exists between offerings at one of those institutions and some other Maryland public university.  Through an elaborate and lengthy process, MHEC would be expected to make a ruling that might reject a new program proposal or even shut down an existing program at a competing public institution.

The criteria in the bill are less than precise, but it’s clear that the intention of the legislation is to increase the number of attractive academic programs offered exclusively by HBCUs.  The bill fails to consider the many different reasons why students might select a program or a particular university.  Moreover, it leaves the impression that creating a successful program is more like pulling a module off a shelf rather than developing the faculty, curriculum and supporting infrastructure that produce a successful academic program.

Maryland’s system of public higher education, since a major legislative reorganization in 1988, has improved by almost any standard that you can think of, including national reputation, rankings, quality of faculty, and appeal to students.  It is, as I have argued recently on this page, one of the real strengths of the state in terms of its economic competitiveness and its quality of life.  SB 169 risks undercutting and damaging a state asset that is working remarkably well.

And if that weren’t enough, another provision of the bill would allow a university that received an adverse ruling from MHEC to appeal to Maryland Circuit Court.  Think about that for a minute:  one state agency suing another, with the State Attorney General’s Office technically representing both of them.

That 1988 law I mentioned earlier had as one goal to depoliticize higher education decisions by putting them in the hands of governing boards rather than the legislature.  This bill would set the bad precedent of involving the General Assembly on one side of a dispute as well as opening up future disagreements to endless Court litigation.

A federal district judge last year ruled against a coalition arguing that the state’s HBCUs were underfunded and disadvantaged in terms of their institutional mission statements.  However, Judge Catherine Blake did side with the plaintiffs on the question of whether there was unnecessary duplication of academic programs.  She withheld final judgment in the case to allow the parties to engage in a mediation process consistent with her findings.

If the parties are unable to reach an agreement and Judge Blake issues a final order, it is highly likely that the State of Maryland will appeal the decision.  SB 169, in addition to all the other problems that it presents, offers the prospect of entangling a new law into the middle of an ongoing court case.

Finally, what is fundamentally deficient about both this legislative proposal and Judge Blake’s decision is that both show a distinct lack of understanding of how higher education in this country works in 2014.  With the rapid proliferation of online degrees, many from prestigious universities, the idea that a state, by public policy, can guarantee a market for any one of its universities, is totally outdated.

The notion that Maryland should shut down or transfer a successful program from one university to another undercuts the development of institutional capability and identify.  Moreover, it reduces both the opportunities for residents to have the best possible options and the ability of Maryland institutions to compete, not just with each other, but with other universities wherever they are.

In the same vein, being able to respond to employers’ needs and to shifting demands of the market place requires universities than are nimble, creative and entrepreneurial, not ones that are protected by a complex maze of state rules and procedures.

The risk in raising the argument that I have made here is that some will construe them as being in opposition to HBCUs.  Maryland has come a long way from the era of state-enforced segregation. Students of all races have thrived at universities that in a past shameful era would not have admitted them. The improvements in Maryland public higher education benefit all races.

The State’s HBCUs, as Judge Blake noted, are well funded today.  They clearly offer opportunities and a positive environment for many students.  Continuing to build on the progress that has been made at those institutions can be accomplished without tearing down academic programs at the other public universities.

SB 169 is a bad idea.  I hope by the time this column is published, its demise in the Senate is a sure thing.  If not, it’s important that the House of Delegates step up and protect one of the state’s most valuable resources by rejecting SB 169.

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Laslo Boyd's professional experience includes serving as education advisor to the Governor of Maryland, Acting Secretary of Higher Education, senior administrator in several higher education institutions and university professor.  His work in political campaigns has involved strategic communications, public opinion polling, and development of position papers.  Dr. Boyd has consulted for a wide range of clients in higher education, government, and business.  He has provided political commentary and analysis in both print and electronic media.